I.
INTRODUCTION
G.R. No. 127240             March 27, 2000
ONG CHIA, petitioner,
vs.
REPUBLIC OF THE PHILIPPINES and THE COURT OF APPEALS, respondents.
MENDOZA, J.:
This is a petition for review of the decision1 of the Court of Appeals reversing the decision of the
Regional Trial Court, Branch 24, Koronadal, South Cotabato 2 admitting petitioner Ong Chia to
Philippine citizenship.
The facts are as follows:
Petitioner was born on January 1, 1923 in Amoy, China. In 1932, as a nine-year old boy, he arrived at
the port of Manila on board the vessel "Angking." Since then, he has stayed in the Philippines where
he found employment and eventually started his own business, married a Filipina, with whom he had
four children. On July 4, 1989, at the age of 66, he filed a verified petition to be admitted as a Filipino
citizen under C.A. No. 473, otherwise known as the Revised Naturalization Law, as amended.
Petitioner, after stating his qualifications as required in §2, and lack of the disqualifications
enumerated in §3 of the law, stated —
17. That he has heretofore made (a) petition for citizenship under the provisions of Letter of
Instruction No. 270 with the Special Committee on Naturalization, Office of the Solicitor
General, Manila, docketed as SCN Case No. 031776, but the same was not acted upon owing
to the fact that the said Special Committee on Naturalization was not reconstituted after the
February, 1986 revolution such that processing of petitions for naturalization by
administrative process was suspended;
During the hearings, petitioner testified as to his qualifications and presented three witnesses to
corroborate his testimony. So impressed was Prosecutor Isaac Alvero V. Moran with the testimony of
petitioner that, upon being asked by the court whether the State intended to present any witness
present any witness against him, he remarked:
Actually, Your Honor, with the testimony of the petitioner himself which is rather surprising,
in the sense that he seems to be well-versed with the major portion of the history of the
Philippines, so, on our part, we are convinced, Your Honor Please, that petitioner really
deserves to be admitted as a citizen of the Philippines. And for this reason, we do not wish to
present any evidence to counteract or refute the testimony of the witnesses for the petitioner,
as well as the petitioner himself.3
Accordingly, on August 25, 1999, the trial court granted the petition and admitted petitioner to
Philippine citizenship. The State, however, through the Office of the Solicitor General, appealed all
the names by which he is or had been known; (2) failed to state all his former placer of residence in
violation of C.A. No. 473, §7; (3) failed to conduct himself in a proper and irreproachable manner
during his entire stay in the Philippines, in violation of §2; (4) has no known lucrative trade or
occupation and his previous incomes have been insufficient or misdeclared, also in contravention
of §2; and (5) failed to support his petition with the appropriate documentary evidence.4
Annexed to the State's appellant's brief was a copy of a 1977 petition for naturalization filed by
petitioner with the Special Committee on Naturalization in SCN Case No. 031767,5 in which
petitioner stated that in addition to his name of "Ong Chia," he had likewise been known since
childhood as "Loreto Chia Ong." As petitioner, however, failed to state this other name in his 1989
petition for naturalization, it was contended that his petition must fail.6 The state also annexed
income tax returns7 allegedly filed by petitioner from 1973 to 1977 to show that his net income
could hardly support himself and his family. To prove that petitioner failed to conduct himself in a
proper and irreproachable manner during his stay in the Philippines, the State contended that,
although petitioner claimed that he and Ramona Villaruel had been married twice, once before a
judge in 1953, and then again in church in 1977, petitioner actually lived with his wife without the
benefit of marriage from 1953 until they were married in 1977. It was alleged that petitioner failed
to present his 1953 marriage contract, if there be any. The State also annexed a copy of petitioner's
1977 marriage contract8 and a Joint-Affidavit9 executed by petitioner and his wife. These
documents show that when petitioner married Ramona Villaruel on February 23, 1977, no marriage
license had been required in accordance with Art. 76 of the Civil Code because petitioner and
Ramona Villaruel had been living together as husband and wife since 1953 without the benefit of
marriage. This, according to the State, belies his claim that when he started living with his wife in
1953, they had already been married.
The State also argued that, as shown by petitioner's Immigrant Certificate of Residence, 10
petitioner resided at "J.M. Basa Street, Iloilo," but he did not include said address in the petition.
On November 15, 1996, the Court of Appeals rendered its decision which, as already noted,
reversed the trial court and denied petitioner's application for naturalization. It ruled that due to the
importance naturalization cases, the State is not precluded from raising questions not presented in
the lower court and brought up for the first time on appeal. 11 The appellate court held:
As correctly observed by the Office of the Solicitor General, petitioner Ong Chia failed to
state in this present petition for naturalization his other name, "LORETO CHIA ONG,"
which name appeared in his previous application under Letter of Instruction No. 270.
Names and pseudonyms must be stated in the petition for naturalization and failure to
include the same militates against a decision in his favor. . . This is a mandatory
 requirement to allow those persons who know (petitioner) by those other names to come
forward and inform the authorities of any legal objection which might adversely affect his
application for citizenship.
Furthermore, Ong Chia failed to disclose in his petition for naturalization that he formerly
resided in "J.M. Basa St., Iloilo" and "Alimodian, Iloilo." Section 7 of the Revised
Naturalization Law requires the applicant to state in his petition "his present and former
places of residence." This requirement is mandatory and failure of the petitioner to comply
with it is fatal to the petition. As explained by the Court, the reason for the provision is to give
the public, as well as the investigating agencies of the government, upon the publication of
the petition, an opportunity to be informed thereof and voice their objections against the
petitioner. By failing to comply with this provision, the petitioner is depriving the public and
said agencies of such opportunity, thus defeating the purpose of the law. . .
Ong Chia had not also conducted himself in a proper and irreproachable manner when he
lived-in with his wife for several years, and sired four children out of wedlock. It has been the
consistent ruling that the "applicant's 8-year cohabitation with his wife without the benefit of
clergy and begetting by her three children out of wedlock is a conduct far from being proper
and irreproachable as required by the Revised Naturalization Law", and therefore disqualifies
him from becoming a citizen of the Philippines by naturalization . . .
Lastly, petitioner Ong Chia's alleged annual income in 1961 of P5,000.00, exclusive of
bonuses, commissions and allowances, is not lucrative income. His failure to file an income
tax return "because he is not liable for income tax yet" confirms that his income is low. . . "It
is not only that the person having the employment gets enough for his ordinary necessities in
life. It must be shown that the employment gives one an income such that there is an
appreciable margin of his income over expenses as to be able to provide for an adequate
support in the event of unemployment, sickness, or disability to work and thus avoid one's
becoming the object of charity or public charge." . . . Now that they are in their old age,
petitioner Ong Chia and his wife are living on the allowance given to them by their children.
The monthly pension given by the elder children of the applicant cannot be added to his
income to make it lucrative because like bonuses, commissions and allowances, said pensions
are contingent, speculative and precarious. . .
Hence, this petition based on the following assignment of errors:
I. THE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION IN RULING THAT
IN NATURALIZATION CASES, THE APPELLATE COURT CAN DENY AN
APPLICATION FOR PHILIPPINE CITIZENSHIP ON THE BASIS OF DOCUMENTS NOT
PRESENTED BEFORE THE TRIAL COURT AND NOT FORMING PART OF THE
RECORDS OF THE CASE.
II. THE FINDING OF THE COURT OF APPEALS THAT THE PETITIONER HAS
BEEN KNOWN BY SOME OTHER NAME NOT STATED IN HIS PETITION IS NOT
SUPPORTED BY THE EVIDENCE ON RECORD.
III. CONTRARY TO THE FINDING OF THE COURT OF APPEALS, THE
PETITIONER STATED IN HIS PETITION AND ITS ANNEXES HIS PRESENT AND
FORMER PLACES OF RESIDENCE.
IV. THE FINDING OF THE COURT OF APPEALS THAT THE PETITIONER FAILED
TO CONDUCT HIMSELF IN A PROPER AND IRREPROACHABLE MANNER IS
NOT SUPPORTED BY THE EVIDENCE ON RECORD.
Petitioner's principal contention is that the appellate court erred in considering the documents
which had merely been annexed by the State to its appellant's brief and, on the basis of which,
justified the reversal of the trial court's decision. Not having been presented and formally offered
as evidence, they are mere "scrap(s) of paper devoid of any evidentiary value," 12 so it was argued,
because under Rule 132, §34 of the Revised Rules on Evidence, the court shall consider no
evidence which has not been formally offered.
The contention has no merit. Petitioner failed to note Rule 143 13 of the Rules of Court which
provides that —
These rules shall not apply to land registration, cadastral and election cases, naturalization
and insolvency proceedings, and other cases not herein provided for, except by analogy or
in a suppletory character and whenever practicable and convenient. (Emphasis added).
Prescinding from the above, the rule on formal offer of evidence (Rule 132, §34) now being
invoked by petitioner is clearly not applicable to the present case involving a petition for
naturalization. The only instance when said rules may be applied by analogy or suppletorily in such
cases is when it is "practicable and convenient." That is not the case here, since reliance upon the
documents presented by the State for the first time on appeal, in fact, appears to be the more
practical and convenient course of action considering that decisions in naturalization proceedings
are not covered by the rule on res judicata. 14 Consequently, a final favorable judgment does not
preclude the State from later on moving for a revocation of the grant of naturalization on the basis
of the same documents.
Petitioner claims that as a result of the failure of the State to present and formally offer its
documentary evidence before the trial court, he was denied the right to object against their
authenticity, effectively depriving him of his fundamental right to procedural due process. 15 We
are not persuaded. Indeed, the reason for the rule prohibiting the admission of evidence which has
not been formally offered is to afford the opposite party the chance to object to their admissibility.
16 Petitioner cannot claim that he was deprived of the right to object to the authenticity of the
documents submitted to the appellate court by the State. He could have included his objections, as he,
in fact, did, in the brief he filed with the Court of Appeals. thus:
The authenticity of the alleged petition for naturalization (SCN Case No. 031767) which was
supposedly filed by Ong Chia under LOI 270 has not been established. In fact, the case
number of the alleged petition for naturalization. . . is 031767 while the case number of the
petition actually filed by the appellee is 031776. Thus, said document is totally unreliable and
should not be considered by the Honorable Court in resolving the instant appeal. 17
Indeed, the objection is flimsy as the alleged discrepancy is trivial, and, at most, can be accounted for
as a typographical error on the part of petitioner himself. That "SCN Case No. 031767," a copy of
which was annexed to the petition, is the correct case number is confirmed by the Evaluation Sheet 18
of the Special Committee on Naturalization which was also docketed as "SCN Case No. 031767."
Other than this, petitioner offered no evidence to disprove the authenticity of the documents presented
by the State.
Furthermore, the Court notes that these documents — namely, the petition in SCN Case No. 031767,
petitioner's marriage contract, the joint affidavit executed by him and his wife, and petitioner's income
tax returns — are all public documents. As such, they have been executed under oath. They are thus
reliable. Since petitioner failed to make a satisfactory showing of any flaw or irregularity that may cast
doubt on the authenticity of these documents, it is our conclusion that the appellate court did not err in
relying upon them.
One last point. The above discussion would have been enough to dispose of this case, but to settle all
the issues raised, we shall briefly discuss the effect of petitioner's failure to include the address "J.M.
Basa St., Iloilo" in his petition, in accordance with §7, C.A. No. 473. This address appears on
petitioner's Immigrant Certificate of Residence, a document which forms part of the records as Annex
A of his 1989 petition for naturalization. Petitioner admits that he failed to mention said address in his
petition, but argues that since the Immigrant Certificate of Residence containing it had been fully
published, 19 with the petition and the other annexes, such publication constitutes substantial
compliance with §7. 20 This is allegedly because the publication effectively satisfied the objective
sought to be achieved by such requirement, i.e., to give investigating agencies of the government the
opportunity to check on the background of the applicant and prevent suppression of information
regarding any possible misbehavior on his part in any community where he may have lived at one
time or another. 21 It is settled, however, that naturalization laws should be rigidly enforced and
strictly construed in favor of the government and against the applicant. 22 As noted by the State, C.A.
No. 473, §7 clearly provides that the applicant for naturalization shall set forth in the petition his
present and former places of residence. 23 This provision and the rule of strict application of the law
in naturalization cases defeat petitioner's argument of "substantial compliance" with the requirement
under the Revised Naturalization Law. On this ground alone, the instant petition ought to be
denied.1âwphi1.nêt
WHEREFORE, the decision of the Court of Appeals is AFFIRMED and the instant petition is
hereby DENIED.
SO ORDERED.
G.R. Nos. 140538-39             June 14, 2004
PEOPLE OF THE PHILIPPINES, appellee,
vs.
GODOFREDO B. ADOR and DIOSDADO B. ADOR III, appellants.
DECISION
PUNO, J.:
The quiescence of the fading day was shattered by bursts of gunfire, startling the otherwise tranquil
but sanguine folks of Pacol, Naga City. As the fusillade of shots ceased and the wisp of smoke
cleared, frolicking promenaders stumbled upon Ompong Chavez who was gasping his last,
clutching his intestines which had spewed out from his bloodied stomach. He did not in fact reach
the hospital alive. A breath away, Abe Cuya lay lifeless on the pavement. He died on the spot. For
the twinned deaths, the Adors, six (6) of them, were haled to court.
In two (2) separate informations,1 Diosdado Sr.,2 Diosdado Jr., Diosdado III, Godofredo, Rosalino
and Allan, all surnamed Ador, were charged with the murder of Absalon "Abe" S. Cuya III and
Rodolfo "Ompong" S. Chavez. The Informations in Crim. Cases Nos. 97-6815 and 97-6816
identically read:
That on or about March 10, 1997, in the City of Naga, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating
together and mutually helping one another, with intent to kill, with treachery and the aid of
armed men, did then and there willfully, unlawfully and feloniously shoot ABSALON
"ABE" CUYA III (RODOLFO "OMPO" CHAVEZ y SAN ANDRES 3 for Crim. Case No.
97-6816) with firearms, inflicting upon him multiple and mortal gunshot wounds which
caused his death, to the damage and prejudice of his heirs.
With the aggravating circumstance of evident premeditation and nighttime.
CONTRARY TO LAW.
However, only four (4) of the six (6) Adors, namely, Diosdado Sr., Godofredo, Rosalino and Allan,
were taken into custody. The two (2), Diosdado Jr. and Diosdado III, remained at large. Trial thus
proceeded only against Diosdado Sr., Godofredo, Rosalino and Allan who all pleaded not guilty.
Diosdado Sr. is the father of Diosdado Jr., Diosdado III and Godofredo, while Rosalino is the father of
Allan. Diosdado Sr. and Rosalino are brothers.4
In its effort to secure the conviction of the accused, the prosecution presented a total of sixteen (16)
witnesses: Mercy Beriña, Larry Cado, Medico-Legal Officer of Naga City Dr. Joel S. Jurado, Police
Inspector Ma. Julieta Razonable, SPO1 Benjamin Barbosa, SPO3 Augusto Basagre, Major Ernesto
Idian, Inspector Reynaldo F. Fulgar, SPO1 Noli Reyes Sol, SPO3 Eduardo C. Bathan, Inspector
Vicente C. Lauta, Ernani Castillo, PO3 Augusto I. Nepomuceno, Absalon Cuya Sr., Efren Chavez and
Pablo Calsis.
From the evidence of the prosecution, it appears that on March 10, 1997, at around seven-thirty in the
evening, while Mercy Beriña, Larry Cado and some eleven (11) others were leisurely walking along
Kilometer 11 on their way to Zone 1, Kilometer 10, Pacol, Naga City, to attend a wedding anniversary,
they heard several gunshots. Shortly after, they met a certain Pablito Umali who told them that
"Ompong" Chavez had been shot. They ran to Chavez straight off and saw him already lying on the
ground, about 1½ meters away from a lighted electric post, holding on to his intestines
which were starting to come out. Beriña shook Chavez and asked him what had happened. Chavez
replied "tinambangan kami na Ador" ("We were ambushed by the Adors") and requested that he be
brought to the hospital as he was dying. About eight (8) meters from where Chavez was, in a dark
spot, lay "Abe" Cuya, dead.5
Upon learning of the shooting incident through their radio communication, SPO1 Benjamin Barbosa,
together with PO2 Alexander Diaz, immediately proceeded to the crime scene to conduct an
investigation. SPO3 Eduardo Bathan and SPO1 Wilfredo Fernandez, among others, were already
there.6 SPO1 Barbosa collected some pieces of evidence, took some pictures and made some
sketches.7 SPO1 Fernandez on the other hand interviewed one Cresenciana Mendoza in her house
which was nearby, and when he heard people shout that Chavez was still alive, he brought Chavez to
the hospital but the latter expired on the way.8
That same evening, upon being informed that the Adors had a long-standing grudge against the Cuyas,
SPO1 Barbosa sought the help of then Barangay Captain Josue Perez to accompany him to the
residence of the Adors. They arrived at the Adors at around ten o’clock that evening and spoke with
their patriarch, Diosdado Ador Sr. SPO1 Barbosa looked for the other male members of the Ador
family but was told by Diosdado Sr. that they were already asleep. Diosdado Sr. nevertheless promised
to present them the following day.9
The following morning, March 11, 1997, Barangay Captain Perez accompanied the Adors, namely,
Diosdado Sr., Diosdado III, Godofredo, Rosalino, Allan and Reynaldo, to SPO1 Barbosa at the
PNP Central Police Headquarters. The Adors were informed of their constitutional rights to remain
silent and to choose their own counsel. They were then brought to the PNP Crime Laboratory at the
Provincial Headquarters and subjected to paraffin tests. 10 On the way to the crime laboratory,
Godofredo told his police escort that he had been entrusted with a handgun which he kept in his
residence.11 The information was relayed to Major Ernesto Idian, then Deputy Chief of Police of
Naga City, who ordered PO3 Augusto I. Nepomuceno to accompany him in recovering the gun
because Godofredo
said that he would turn in the gun only to PO3 Nepomuceno. Thus, Major Idian, PO3 Nepomuceno
and some others accompanied Godofredo to the latter’s residence.
Upon reaching the Ador residence, Godofredo, together with PO3 Nepomuceno, went to their
backyard, retrieved the gun from under a fallen coconut trunk and turned it in to the latter.
Godofredo allegedly told the police that he fired the said gun outside their house on the night of
March 10 after he heard several gunshots. 12 PO3 Nepomuceno identified the gun as a caliber .38
"paltik" handgun which had no serial number. 13 PO3 Nepomuceno then turned over the handgun
to Major Idian14 who likewise identified it as a .38 caliber revolver. Major Idian returned the
handgun to PO3 Nepomuceno for ballistic and paraffin examination. 15 Thereafter, PO3
Nepomuceno placed his initials on the gun and put it in his private locker while preparing the
documents for the examinations and the possible filing of a case for Illegal Possession of
Firearm.16
Also, on the same day, March 11, 1997, Dr. Joel S. Jurado, Medico-Legal Officer of Naga City,
conducted an autopsy on the bodies of Chavez and Cuya. Based on the autopsy reports, Dr. Jurado
testified that Cuya sustained five (5) gunshot wounds and died from "cardio-pulmonary arrest,
massive intra-thoracic, intra-abdominal, intra-cranial hemorrhage secondary to multiple gunshot
wounds penetrating the heart, brain, lungs and digestive tract." 17 Chavez on the other hand had
three (3) gunshot wounds and died from "traumatic shock and massive intra-abdominal
hemorrhage secondary to multiple gunshot wounds penetrating the right kidney and the internal
abdominal organs."18 Dr. Jurado further testified that that he recovered a slug from Cuya’s head
three (3) days after he conducted the autopsy - after Cuya’s relatives called his attention to a
protruding mass in Cuya’s head. Thus, he had Cuya’s cadaver sent back to the funeral parlor,
opened it and was able to extract a deformed .38 caliber slug which he thereafter submitted to the
City Prosecutor’s Office.19
Police Inspector Reynaldo Fulgar, Chief of the Firearm Identification Section of the PNP Crime
Laboratory, Camp Ola, Legaspi City, testified that based on the ballistic examination he conducted on
the bullets submitted to his office, the .38 caliber slug recovered from Cuya’s head matched the three
(3) .38 caliber test bullets which were test-fired from the suspected firearm surrendered by Godofredo.
He however averred that the .38 caliber bullets were actually fired from a .357 Smith and Wesson
Magnum homemade revolver without serial number, and not from a .38 caliber revolver.20
The paraffin casts taken from the Adors were also transmitted to the PNP Crime Laboratory Services
for examination and yielded the presence of gunpowder nitrates, thus –
(1) Diosdado A. Ador – both hands, positive;
(2) Diosdado B. Ador III – right hand, positive; left hand, negative;
(3) Godofredo B. Ador – right hand, positive; left hand, negative;
(4) Rosalino A. Ador – both hands, positive;
(5) Reynaldo T. Ador – both hands, negative;21
(6) Allan T. Ador – both hands, positive.22
Absalon Cuya Sr., father of deceased Cuya III, said that the killing of his son was driven by the long-
standing feud between the Adors and his family. He said that Diosdado Jr. had earlier accused his
other son Liberato of frustrated homicide for allegedly stabbing him (Diosdado Jr.). 23 Then, Adelina,
a daughter of Diosdado Sr., filed a case for abduction with multiple rape against him, Absalon III,
Rayne and Josephine, all surnamed Cuya, after the romantic relationship between Adelina and his
deceased son Absalon III turned sour. 24 He also presented official receipts of the funeral and burial
expenses which amounted to ₱10,230.00.25
Efren Chavez, brother of deceased Chavez, likewise spoke of the animosity between the Chavez and
the Ador families. He produced a certification from the PNP Naga City Police Station that on February
17, 1997, a blotter was entered in the Daily Record of Events showing that deceased Chavez reported
a certain Ricardo Ador who while under the influence of liquor caused him physical injury. 26 The
witness likewise presented an official receipt showing that the family spent ₱3,500.00 for the funeral
of the deceased Chavez.27 After presenting Chavez, the prosecution rested its case.
On April 7, 1998, the four (4) accused filed a demurrer to evidence "for utter lack of evidence." 28 On
May 13, 1998, the trial court dismissed the cases against Diosdado Sr., Rosalino and Allan but denied
the demurrer to evidence against Godofredo –
WHEREFORE, this Court finds the demurrer to evidence to be justified for the accused
Diosdado A. Ador, Allan T. Ador and Rosalino Ador, hence, the same is hereby granted
insofar as these accused are concerned. Said accused therefore, namely: Diosdado A. Ador,
Allan T. Ador and Rosalino Ador are ACQUITTED in Crim. Cases Nos. 97-6815 and 97-
6816. The bailbonds posted for their provisional liberty are hereby cancelled.
Trial of the case insofar as Godofredo B. Ador is concerned shall proceed.
SO ORDERED.29
Thus, trial proceeded against Godofredo.
For his defense, Godofredo denied any participation in the killings of Cuya and Chavez. He said
that on March 10, 1997, at around seven o’clock in the evening, he heard several gunshots while he
was having dinner with his wife and four (4) children in their house in Pacol, Naga City. Since his
wife advised him not to go out anymore, he slept after dinner. The following day, while he was
gathering pili nuts, his long-time friend Dominador Bautista arrived and asked him to go down
from the tree. Bautista wanted to borrow money and on his way to see him, found a gun by the
footpath. Bautista gave the gun to him. It was his first time to hold a gun. He tried it out and fired
three (3) times. After firing the gun, he removed the empty shells from its chambers and threw
them away. He then wrapped the gun with plastic and hid it under a coconut trunk. Bautista left
when he told him that he had no money. He then continued to gather pili nuts until Major Idian and
three (3) other policemen came.
Godofredo’s father told him that they were being suspected of killing Chavez and Cuya the night
before. Thus, they went to the provincial headquarters, were subjected to paraffin testing and made
to sign a blank bond paper. After that, they went back to the central police station. At the central
police station, Godofredo narrated to a certain Calabia that that morning, his friend Bautista found
a gun along the road and gave it to him. He hid the gun under a coconut trunk. Calabia relayed the
information to Major Idian who directed PO3 Nepomuceno to go with Godofredo to get the gun.
Godofredo led PO3 Nepomuceno to where he hid the gun, retrieved it and handed it to the latter.
They then returned to the police headquarters where he was jailed. He asserted that the gun
presented in court is different from the gun he surrendered to the police.30
Bautista corroborated Godofredo’s story. He testified that he found the gun which Godofredo
yielded to PO3 Nepomuceno. He said that he was on his way to see Godofredo to borrow money
when he chanced upon the handgun on the pathway. He gave the gun to Godofredo and the latter
tested it by pulling its trigger. After firing the gun, Godofredo removed the empty shells and threw
them. Godofredo then wrapped the gun with plastic and hid it under a fallen coconut trunk.31
Meanwhile, Diosdado Jr. was arrested on October 9, 1998, at Barangay Doña, Orani, Bataan, and
committed to the Naga City Jail on November 17, 1998, while Diosdado III surrendered to the court
and was committed to the same city jail on November 22, 1998. On November 23, 1998, both
Diosdado Jr. and Diosdado III were arraigned and entered a plea of not guilty. Hence, trial against
them commenced and proceeded jointly with the case of the remaining accused, Godofredo.
The prosecution presented Pablo Calsis32 as a witness against Diosdado Jr. and Diosdado III. Calsis
testified that on March 10, 1997, at around 7:30 in the evening, he dropped by the house of
Cresenciana Mendoza whom he fondly called Lola Kising at Kilometer 10, Pacol, Naga City, before
going home from work. After asking permission from her to go home and while about to urinate
outside her house, he heard several gunshots. He ducked by a sineguelas tree at a nearby flower
plantation. As he was about to stand up, he saw Disodado Jr., Diosdado III, Godofredo and another
unidentified man run away. Godofredo was carrying a short firearm while Diosdado Jr. had a long
firearm.33 He saw Chavez and Cuya lying on the road. Chavez was about five (5) meters away from
where he stood while Cuya was ten (10) meters away. The place was illuminated by a bright light
from an electric post. There were no other people around. Calsis ran away for fear that he might be
identified by the assailants. He heard Chavez mumbling but shirked nevertheless.34
Calsis narrated to Absalon Cuya Sr. what he saw only after about one (1) year and nine (9) months.
Fear struck him.35 He maintained that he knew the assailants because he and his wife lived in the
house of Lola Kising after they got married. 36 Immense fear prevented him from attending to Chavez,
even while he heard him murmuring, and from informing the families of the victims of the incident
that very same night. He was about to tell the Chavez family the following morning but was counseled
by his Lola Bading, the sister of his Lola Kising, against getting involved in the case. 37 Calsis and his
family left their residence in Pacol one (1) month after the incident because he was afraid the
assailants might have identified him.38 Even Lola Kising left her residence two (2) months after the
incident.39 It was only after he learned from Absalon Cuya Sr. that the trial court dismissed the cases
for lack of evidence insofar as some of the original accused were concerned that he took pity on the
respective families of the victims who have failed to get justice for the death of their loved ones. 40
In defense, Diosdado Jr. testified that on March 10, 1997, he was in Marikina City working as a
warehouseman and timekeeper of the Consuelo Builders Corporation. He was there the whole time
from February 15, 1997, until March 24, 1997.41 Pablo Aspe, a co-worker of Diosdado Jr.,
corroborated the latter’s testimony. He said that on February 15, 1997, he and Diosdado Jr. left Pacol,
Naga City, together to work in Consuelo Construction in Marikina City. They were with each other in
Marikina City the whole time from February 15, 1997, until he (Aspe) went home to Naga City on
March 22, 1997. While in Marikina City, they resided and slept together in their barracks at the
construction site.42
Diosdado III also took the witness stand. On March 10, 1997, at around seven o’clock in the
evening, he was at their house at Zone 1, Pacol, Naga City, watching television with his parents
and cousins Reynaldo and Allan when they heard gunshots. They ignored the gunshots, continued
watching television and slept at eight o’clock. The following day, at around six o’clock in the
morning, while he was fetching water, four (4) policemen arrived at their house and talked to his
father. Thereafter, his father called him, his brother Godofredo, uncle Rosalino and cousins Allan
and Reynaldo. The policemen then requested all of them to go to the PNP Central Police
Headquarters for investigation regarding the killings of Chavez and Cuya. Upon reaching the
police headquarters, they were interviewed by the media and afterwards brought to the provincial
headquarters where they were subjected to paraffin tests. They were then brought back to the
Central Police Headquarters and later allowed to go back home to Pacol.
Then, sometime in October, 1997, his father was arrested by the police. Diosdado III was at their
residence when his father was picked up. Only his father was taken by the police. He continued to
reside in their house until April, 1998, when he transferred to Sagurong, San Miguel, Tabaco,
Albay, to work as a fisherman. On November 21, 1998, he received a letter from his father telling
him to come home. Thus, he went home the following day. On November 23, 1998, he surrendered
to the court.43
The defense also presented Barangay Captain Josue Perez and an uncle of Diosdado Jr. and
Disodado III, Jaime Bobiles. Perez testified that he was the barangay captain of Pacol from 1982
until May, 1997. In 1996, Cresenciana Mendoza left their barangay permanently to live with her
children in Manila because she was sickly and alone in her house. He said that Mendoza never
came back. He does not know any Pablo Calsis and the
latter could not have talked to Mendoza on March 10, 1997, because at that time, Mendoza was not
there and her house was already abandoned. 44 Similarly, Bobiles confirmed the testimony that
Diosdado III worked as a fisherman in Tabaco and stayed in his residence from May 1, 1998, until
November 1998 when Diosdado III received a letter from his father and had to go home.45
In rebuttal however, prosecution witness SPO1 Fernandez asserted that he interviewed Cresenciana
Mendoza that fateful night of March 10, 1997. 46 After the rebuttal witness was presented, the
cases were finally submitted for decision.47
On August 2, 1999, the trial court held that "a chain of circumstances x x x lead to a sound and logical
conclusion that indeed the accused (Diosdado III and Godofredo) committed the offense charged" 48
and as such rendered judgment –
WHEREFORE, premises considered, this court finds the accused Godofredo B. Ador and
Diosdado B. Ador III GUILTY beyond reasonable doubt of the crime of MURDER, defined
and penalized under the provisions of Article 248 of the Revised Penal Code, as amended by
Republic Act 7659 in Criminal Cases Nos. 97-6815 and 97-6816, hereby sentences the said
accused Godofredo B. Ador and Diosdado B. Ador III to suffer the penalty of RECLUSION
PERPETUA in Criminal Case No. 97-6815; RECLUSION PERPETUA in Criminal Case No.
97-6816, to pay the heirs of Absalon "Abe" Cuya III ₱25,000 each by way of actual damages
and ₱50,000 in each criminal case by way of indemnity. To pay the heirs of Rodolfo
"Ompong" Chavez the sum of ₱50,000 in each criminal case by way of indemnity, such
accessory penalties as provided for by law and to pay the cost. For insufficiency of the
prosecution to prove the guilt of the accused Diosdado B. Ador, Jr. beyond reasonable doubt,
he is hereby ACQUITTED in Crim. Cases Nos. 97-6815 and 97-6816.
The Jail Warden of the Naga City District Jail is hereby ordered to forthwith release from its
custody the accused Diosdado B. Ador, Jr., unless his further detention is warranted by any
other legal cause or causes.
SO ORDERED.49
Hence, this joint appeal interposed by Disodado III and Godofredo. They maintain that the trial court
gravely erred in convicting them of murder based on circumstantial evidence. The testimony of
prosecution witness Pablo Calsis that he saw them running away from the scene of the crime was
concocted. The handgun turned in by Godofredo was not the same gun presented by the prosecution
during the trial. The unusual discovery of a slug from the head of the deceased - three (3) days after
the autopsy was conducted and after the cadaver was turned over to the family of the victim - was
quite doubtful. Even the supposed dying declaration of the victim specifically pointed to neither
Diosdado III nor Godofredo. And, the trial court erred in admitting in evidence those taken against
them in violation of their constitutional rights to counsel during custodial investigation. 50
The rules of evidence allow the courts to rely on circumstantial evidence to support its conclusion of
guilt.51 It may be the basis of a conviction so long as the combination of all the circumstances proven
produces a logical conclusion which suffices to establish the guilt of the accused beyond reasonable
doubt.52 All the circumstances must be consistent with each other, consistent with the theory that all
the accused are guilty of the offense charged, and at the same time inconsistent with the hypothesis
that they are innocent and with every other possible, rational hypothesis except that of guilt. 53 The
evidence must exclude each and every hypothesis which may be consistent with their innocence. 54
Also, it should be acted on and weighed with great caution. 55 Circumstantial evidence which has
not been adequately established, much less corroborated, cannot by itself be the basis of
conviction.56
Thus, for circumstantial evidence to suffice, (1) there should be more than one circumstance; (2)
the facts from which the inferences are derived are proven; and (3) the combination of all the
circumstances is such as to produce a conviction beyond reasonable doubt. 57 Like an ornate
tapestry created out of interwoven fibers which cannot be plucked out and assayed a strand at a
time apart from the others, the circumstances proved should constitute an unbroken chain which
leads to one fair and reasonable conclusion that the accused, to the exclusion of all others, is guilty
beyond reasonable doubt.58 The test to determine whether or not the circumstantial evidence on
record are sufficient to convict the accused is that the series of the circumstances proved must be
consistent with the guilt of the accused and inconsistent with his innocence. 59 Accordingly, we
have set guidelines in appreciating circumstantial evidence: (1) it should be acted upon with
caution; (2) all the essential facts must be consistent with the hypothesis of guilt; (3) the facts must
exclude every theory but that of guilt; and (4) the facts must establish such a certainty of guilt of
the accused as to convince the judgment beyond a reasonable doubt that the accused is the one who
committed the offense.60
Measured against the guidelines set, we cannot uphold the conviction of the accused based on the
circumstantial evidence presented.
The first circumstance which the prosecution sought to prove is that the accused were supposedly
seen fleeing from the locus criminis, armed with their respective weapons. Thus, the trial court,
gleaning from the evidence presented, found that "[w]hen about to stand, Calsis saw Godofredo B.
Ador, Diosdado B. Ador, Jr. and Diosdado B. Ador III, and a person going to the direction of the
house of the Adors which is about 500 meters away." 61 In fact, prosecution witness Calsis
allegedly even saw Diosdado Jr. carrying "a long firearm but x x x could not determine what kind
of gun it was."62 However, the trial court acquitted Diosdado Jr. But only rightly so. For, Calsis
had difficulty in identifying the Adors notwithstanding his assertion that he knew and saw them
personally. We defer to his direct examination –
ATTY. TERBIO (Private Prosecutor):
Q. You said you recognized the persons running, could you tell us their names?
PABLO CALSIS:
A. Yes sir. Q. On the said date and time and place, you said you saw them running, how far were you
from them?
Q. Name them?
A. Godofredo Ador, Jr., Sadang III. A. Around 10 meters. (Emphases supplied)63

Q. How about the others? The testimony of Calsis, if at all, could hardly be used against Diosdado III whom he miserably
failed to positively identify during trial. In fact, the acquittal of Diosdado Jr. by the trial court
A. I could not tell his name but if I see him I could identify him. renders the entire testimony of Calsis in serious doubt. Calsis was presented to positively identify
Q. The 4 persons whom you saw that night, if they are present in court, please point them out? the assailants who were supposedly personally known to him and were just ten (10) meters away
from him. It puzzles us no end why he cannot even identify the Adors in open court.
A. Yes sir.
Thus, despite Calsis’ assertion that Diosdado Jr. was one of the assailants, the trial court doubted
Q. Point particularly Godofredo Ador, Jr.? him and gave credence to the alibi of Diosdado Jr. that the latter was in Nangka, Marikina, when
A. (Witness pointed or tapped the shoulder of a person inside the courtroom who answered by the killings took place. The trial court favored the unbiased testimony of Aspe who said that
the name Diosdado Ador, Jr.) Diosdado Jr. worked as a timekeeper and warehouseman with him at the Consuelo Construction at
Nangka, Marikina, from February 15, 1997, until March 22, 1997, and went home to Pacol only on
Q. How about this Sadang III? May 27, 1997. This ruling is strengthened by the fact that on the morning following the killings, all
A. (Witness tapped the shoulder of a man who answered by the name of Diosdado Ador III.) the male members of the Ador family were brought to the police headquarters for paraffin
examination and Diosdado Jr. was not among them. 64 We thus respect the finding of the trial court
Q. Likewise, point to the third person?
that indeed Diosdado Jr. was not at the scene of the crime absent any indication that the lower court
A. (Witness pointed to a man…) overlooked some facts or circumstances which if considered would alter the outcome of the
COURT: case.65

Delete that portion from the record, he is not on trial. While it is true that the courts are not bound to accept or reject an entire testimony, and may

ATTY TERBIO: believe one part and disbelieve another, 66 our Constitution and the law mandate that all doubts
must be resolved in favor of the accused. Calsis committed an obvious blunder in identifying the
Q. You said you saw 4 persons, is the fourth one inside the courtroom? supposed assailants which this Court cannot simply let go. On the contrary, it creates reasonable
A. None sir. doubt in our minds if Calcis really saw the persons he allegedly saw or if he was even where he
said he was that evening. For, it is elementary that the positive identification of the accused is
Q. But if you saw that person, will you be able to recognize him? crucial in establishing his guilt beyond reasonable doubt. That is wanting in the instant case.
A. Yes sir. What is more, Calsis’ asseverations, at the outset, could no longer be used against Godofredo since
Q. Why do you know these persons whom you just tapped the shoulder? both the prosecution and the defense have already rested and the case against Godofredo was
already submitted for decision when Calsis was presented. 67 Neither can they still be used against
xxx     xxx     xxx
Diosdado Jr. who was already acquitted by the trial court.
A. I know these persons having lived in the house of Lola Kising.
Both Diosdado III and Godofredo denied the charges hurled against them. But, while it is true that
Q. How far? alibi and denial are the weakest of the defenses as they can easily be fabricated, 68 absent such
A. Around 100 meters. clear and positive identification, the doctrine that the defense of denial cannot prevail over positive
identification of the accused must yield to the constitutional presumption of innocence. 69 Hence,
while denial is concededly fragile and unstable, the conviction of the accused cannot be based
thereon.70 The rule in criminal law is firmly entrenched that verdicts of conviction must be predicated
on the strength of the evidence for the prosecution and not on the weakness of the evidence for the
defense.71
The second circumstance is the handgun turned in by Godofredo. But this was bungled by the
prosecution. Major Idian, Deputy Chief of Police of the Naga City Police Station, to whom the
handgun was turned over after Godofredo surrendered it, identified it as a caliber .38 revolver, thus –
ATTY TERBIO (Private Prosecutor):
Q. What kind of firearm was it?
MAJOR IDIAN:
A. Revolver handgun, caliber .38 with 6 rounds ammunition.
Q. What is the caliber?
A. .38 caliber.72
Similarly, PO3 Nepomuceno who then had been with the PNP for eight (8) years already and to whom
Godofredo turned in the handgun, likewise identified it as a caliber .38, thus –
ATTY TERBIO (Private Prosecutor):
Q. What is the caliber of that gun?
PO3 NEPOMUCENO:
A. .38 caliber.73
However, Insp. Fulgar, Chief of the Firearm Identification Section of the PNP Crime Laboratory,
testified that "[t]he indorsement coming from the City Prosecutors Office x x x alleged that the .38
caliber live bullet was fired from a .38 caliber revolver. But our office found out that the firearm was
not a .38 caliber revolver but a .357 caliber revolver."74
Could it be that the handgun was replaced before it was turned over to the PNP Crime Laboratory?
While the prosecution traced the trail of police officers who at every stage held the gun supposedly
recovered from Godofredo, it never clarified this discrepancy which is quite glaring to ignore. It is
difficult to believe that a Deputy Chief of Police and a police officer of eight (8) years will both
mistake a .357 caliber for a .38 caliber handgun. Likewise, a Chief of the Firearm Identification
Section of the PNP Crime Laboratory cannot be presumed not to know the difference between the two
(2) handguns. Suffice it to say that the prosecution failed to clear up the variance and for this Court
to suggest an explanation would be to venture into the realm of pure speculation, conjecture and
guesswork. Thus, faced with the obvious disparity in the suspected firearm used in the crime and
that which was turned over by Godofredo, his declaration that the handgun presented in court was
different from the gun he gave to the police deserves serious, if not sole consideration.
Consequently, even the third circumstance, the .38 caliber slug supposedly recovered from the
head of the victim three (3) days after the autopsy was conducted loses evidentiary value as its
source is now highly questionable. It has become uncertain whether the deformed slug was fired
from the .38 caliber revolver turned in by Godofredo or from a .357 caliber handgun as attested to
by the Chief of the Firearm Identification Section of the PNP Crime Laboratory.
Neither can this Court rely on the dying declaration of the dying Chavez nor on the results of the
paraffin tests to convict either Diosdado III or Godofredo or both. To refute these, we need not go
far and beyond the 13 May 1998 Order of the trial court partially granting the demurrer to evidence
filed by the accused –
The only direct evidence introduced by the prosecution is the testimony of Mercy Beriña, that she
heard Rodolfo "Ompong" Chavez say "tinambangan kami na Ador" (We were ambushed by the
Adors). Sad to say, no specific name was ever mentioned by the witness. Neither was she able to
tell how many (persons) "Adors" were involved. This testimony if it will be given credence may
inculpate any person with the family name Ador as assailant. The prosecution therefore was not
able to establish with moral certainty as to who of the Adors were perpetrators of the offense x x x
x Paraffin tests are not conclusive evidence that indeed a person has fired a gun.
The fact that the accused-appellants tested positive of gunpowder nitrates does not conclusively
show that they fired the murder weapon, or a gun for that matter, for such forensic evidence should
be taken only as an indication of possibility or even of probability, but not of infallibility, since
nitrates are also admittedly found in substances other than gunpowder. (People v. Abellarosa, G.R.
No. 121195, 27 November 1996; People v. de Guzman, 250 SCRA 118; People v. Nitcha, 240
SCRA 283)75
Thus, while a dying declaration may be admissible in evidence, it must identify with certainty the
assailant. Otherwise, it loses its significance. Also, while a paraffin test could establish the
presence or absence of nitrates on the hand, it cannot establish that the source of the nitrates was
the discharge of firearms – a person who tests positive may have handled one or more substances
with the same positive reaction for nitrates such as explosives, fireworks, fertilizers,
pharmaceuticals, tobacco and leguminous plants.76 In People v. Melchor,77 this Court acquitted
the accused despite the presence of gunpowder nitrates on his hands –
 [S]cientific experts concur in the view that the result of a paraffin test is not conclusive. While
it can establish the presence of nitrates or nitrites on the hand, it does not always indubitably
show that said nitrates or nitrites were caused by the discharge of firearm. The person tested
may have handled one or more of a number of substances which give the same positive
reaction for nitrates or nitrites, such as explosives, fireworks, pharmaceuticals and leguminous
plants such as peas, beans and alfalfa. A person who uses tobacco may also have nitrate or
nitrite deposits on his hands since these substances are present in the products of combustion
of tobacco. The presence of nitrates or nitrites, therefore, should be taken only as an
indication of a possibility but not of infallibility that the person tested has fired a gun.
In fine, the admissions made by Godofredo to Major Idian and PO3 Nepomuceno including the gun in
question cannot be considered in evidence against him without violating his constitutional right to
counsel. Godofredo was already under custodial investigation when he made his admissions and
surrendered the gun to the police authorities. The police had already begun to focus on the Adors and
were carrying out a process of interrogations that was lending itself to eliciting incriminating
statements and evidence: the police went to the Ador residence that same evening upon being
informed that the Adors had a long-standing grudge against the Cuyas; the following day, all the male
members of the Ador family were told to go to the police station; the police was also informed of the
dying declaration of deceased Chavez pointing to the Adors as the assailants; the Adors were all
subjected to paraffin examination; and, there were no other suspects as the police was not considering
any other person or group of persons. The investigation thus was no longer a general inquiry into an
unsolved crime as the Adors were already being held as suspects for the killings of Cuya and Chavez.
Consequently, the rights of a person under custodial investigation, including the right to counsel, have
already attached to the Adors, and pursuant to Art. III, Sec. 12(1) and (3), 1987 Constitution, any
waiver of these rights should be in writing and undertaken with the assistance of counsel. Admissions
under custodial investigation made without the assistance of counsel are barred as evidence. 78 The
records are bare of any indication that the accused have waived their right to counsel, hence, any of
their admissions are inadmissible in evidence against them. As we have held, a suspect’s confession,
whether verbal or non-verbal, when taken without the assistance of counsel without a valid waiver of
such assistance regardless of the absence of such coercion, or the fact that it had been voluntarily
given, is inadmissible in evidence, even if such confession were
gospel truth.79 Thus, in Aballe v. People,80 the death weapon, a four-inch kitchen knife, which was
found after the accused brought the police to his house and pointed to them the pot where he had
concealed it, was barred from admission as it was discovered as a consequence of an uncounseled
extrajudicial confession.
With hardly any substantial evidence left, the prosecution likewise played up the feud between the
Adors on one hand and the Chavezes and the Cuyas on the other hand, and suggested that the Adors
had an axe to grind against the Chavezes and the Cuyas. For sure, motive is not sufficient to
support a conviction if there is no other reliable evidence from which it may reasonably be
adduced that the accused was the malefactor. 81 Motive alone cannot take the place of proof
beyond reasonable doubt sufficient to overthrow the presumption of innocence.82
All told, contrary to the pronouncements of the trial court, we cannot rest easy in convicting the
two (2) accused based on circumstantial evidence. For, the pieces of the said circumstantial
evidence presented do not inexorably lead to the conclusion that they are guilty. 83 The prosecution
witness failed to identify the accused in court. A cloud of doubt continues to hover over the gun
used and the slug recovered. The dying declaration and paraffin examination remain unreliable.
Godofredo’s uncounseled admissions including the gun he turned in are barred as evidence. And,
the supposed motive of the accused is simply insufficient. Plainly, the facts from which the
inference that the accused committed the crime were not proven. Accordingly, the guilt of the
accused cannot be established, more so to a moral certainty. It is when evidence is purely
circumstantial that the prosecution is much more obligated to rely on the strength of its own case
and not on the weakness of the defense, and that conviction must rest on nothing less than moral
certainty.84
Consequently, the case of the prosecution has been reduced to nothing but mere suspicions and
speculations. It is hornbook doctrine that suspicions and speculations can never be the basis of
conviction in a criminal case.85 Courts must ensure that the conviction of the accused rests firmly
on sufficient and competent evidence, and not the results of passion and prejudice. 86 If the alleged
inculpatory facts and circumstances are capable of two (2) or more explanations, one of which is
consistent with the innocence of the accused, and the other consistent with his guilt, then the
evidence is not adequate to support conviction. 87 The court must acquit the accused because the
evidence does not fulfill the test of moral certainty and is therefore insufficient to support a
judgment of conviction.88 Conviction must rest on nothing less than a moral certainty of the guilt
of the accused.89 The overriding consideration is not whether the court doubts the innocence of the
accused but whether it entertains a reasonable doubt as to his guilt. 90 It is thus apropos to repeat
the doctrine that an accusation is not, according to the fundamental law, synonymous with guilt –
the prosecution must overthrow the presumption of innocence with proof of guilt beyond
reasonable doubt. The prosecution has failed to discharge its burden. Accordingly, we have to
acquit.
IN VIEW WHEREOF, the Decision of the Regional Trial Court of Naga City, Br. 25, in Crim.
Cases Nos. 97-6815 and 97-6816 dated August 2, 1999, finding accused-appellants Godofredo B.
Ador and Diosdado B. Ador III guilty beyond reasonable doubt of two (2) counts of murder and
imposing on them the penalty of reclusion perpetua, is hereby REVERSED and SET ASIDE.
Accused-appellants Godofredo B. Ador and Diosdado B. Ador III are ACQUITTED on reasonable
doubt and their IMMEDIATE RELEASE is hereby ORDERED unless they are being held for some
other legal cause.
SO ORDERED.
G.R. No. 140679             January 14, 2004
PEOPLE OF THE PHILIPPINES, appellee,
vs.
MANNY A. DOMINGCIL, appellant.
DECISION
CALLEJO, SR., J.:
For the sale and delivery of one (1) kilo of marijuana to a poseur-buyer, the appellant Manny
Domingcil was charged before the Regional Trial Court of Laoag City, Branch 16, for violation of
Section 4, Article II of Republic Act No. 6425 in an Information, the accusatory portion of which
reads:
That on or about the 12th day of August, 1994, in the City of Laoag, Philippines, and within
the jurisdiction of this Honorable Court, the said accused, not authorized by law, did then and
there willfully, unlawfully and feloniously sell and deliver mixed dried marijuana leaves, tops
and seeds in brick form, wrapped with paper placed in a plastic bag, a prohibited drug,
weighing 800 grams, to a poseur-buyer in a buy-bust operation conducted by Police Officers
of Laoag City, in violation of the aforesaid law.1
Upon arraignment on August 29, 1994, the appellant, assisted by counsel, pleaded not guilty to the
offense charged.2 The case thereafter proceeded to trial.
The Case for the Prosecution
On August 12, 1994, at around 11:00 a.m., Belrey Oliver, an employee of Ferd’s Upholstery Shop
located in Barangay 2, Laoag City, arrived at the Laoag Police Station. He reported to Chief
Investigator SPO4 Rodrigo Ventura that the appellant went to their shop looking for a buyer of
marijuana. Oliver recounted telling the appellant that he knew of someone who was interested and
ready to buy marijuana, and instructing him to bring one (1) kilo of the substance to a store located
in front of the Divine Word College of Laoag at General Segundo Avenue, Laoag City at around
1:30 p.m. of that same day.3
Acting on the said report, SPO4 Ventura formed a team to conduct a buy-bust operation against the
appellant. He assigned SPO1 Orlando Dalusong as the poseur-buyer, and SPO2 Marlin Ramos,
SPO2 Warlito Maruquin, SPO1 Rovimanuel Balolong, SPO1 Loreto Ancheta, and SPO2
Rosemarie Agustin, all assigned at the Investigation Section of the Laoag Police Station as back-
up. The marked "buy-money" consisting of one P500-bill bearing Serial No. G-242745 was
recorded in the police blotter in accordance with standard operating procedure.4
Except for SPO1 Dalusong and Oliver, the rest of the team left the precinct on board two (2)
owner-type jeeps and posted themselves near the Macmac Store, across the gate of the Divine
Word College. Five minutes later, SPO1 Dalusong and Oliver arrived at General Segundo
Avenue.5 Oliver immediately approached the appellant, who was then standing between the
Macmac Store and a xerox center, and introduced poseur-buyer SPO1 Dalusong, who was sporting
casual clothes and slippers: "Pare, daytoy tay gumatangen" ("Friend, this is the buyer"). At this
point, the appellant who was carrying an orange plastic bag, brought out a brick-like item wrapped
in newspaper. He handed the item to SPO1 Dalusong, who forthwith checked the same by making
a small hole through it. Convinced that the brick-like item was indeed marijuana, SPO1 Dalusong
handed the P500 bill to the appellant. He thereupon scratched his head, a signal to the back-up men
that the transaction had been consummated.6 Momentarily, the back-up officers, who had earlier
positioned themselves separately in different strategic locations near the poseur-buyer, rushed to
the scene and arrested the appellant. SPO1 Dalusong then handed the orange plastic bag containing
the suspected marijuana to SPO4 Ventura. SPO2 Ramos frisked the appellant and recovered the
buy-money from the latter’s pocket. Thereafter, the appellant was brought to the headquarters
where he was booked, and the incident was recorded in the police blotter. 7 The suspected
marijuana was brought to and initially examined by Dr. Joseph Adaya, an accredited physician of
the Dangerous Drugs Board (DDB), who certified that the item comprised of three genuine mixture
of marijuana leaves with seeds.8
On September 5, 1994, SPO4 Ventura sent a letter to the Commanding Officer of the PNP Crime
Laboratory Service, Camp Diego Silang, San Fernando, La Union, requesting for the examination
of samples of the suspected marijuana taken from the appellant. 9 On September 6, 1998, SPO1
Loreto Ancheta, evidence custodian of the Laoag City, PNP, delivered the orange plastic bag
containing the suspected marijuana to the PNP provincial crime laboratory service in Camp Juan,
Laoag City. The bag, together with SPO4 Ventura’s letter-request, was received by SPO3 Diosdado
Mamotos.10 On September 8, 1994, SPO3 Mamotos forwarded the laboratory request and the
confiscated item, and were duly received by SPO4 Tampos. 11 The latter, in turn, handed the item to
Police Superintendent Theresa Ann B. Cid, Forensic Chemist of the Crime Laboratory Center, Region
I, Camp Diego Silang, Carlatan, San Fernando, La Union, who conducted an examination of
representative samples extracted from the suspected marijuana confiscated from the appellant. 12 On
the basis of her examination, Superintendent Cid issued Chemistry Report No. D-074-94 with the
following findings:
SPECIMEN SUBMITTED:
One (1) block of suspected marijuana fruiting tops weighing eight hundred grams
(800) wrapped with newspaper pages contained in an orange plastic bag.
...
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of marijuana on the above-mentioned specimen.
F I N D I N G S:
Qualitative examination conducted on the above-mentioned specimen prove
POSITIVE result to the test for marijuana, a prohibited drug.13
The Case for the Appellant
The appellant interposed the twin defenses of denial and alibi. He testified that sometime in the first
week of August 1994, he and Ernesto Gamiao went to the City of Laoag to canvass the price for the
repair of the upholstery of a passenger jeepney. On that occasion, they befriended a certain Belrey
Oliver who was an employee of the Ferd’s Upholstery Shop. In the course of their conversation,
Oliver asked the appellant where he came from and what his occupation was. Upon being told that he
helped in harvesting mangoes in Cagayan, Oliver immediately offered refreshments to Gamiao and the
appellant. While taking their snacks, Oliver inquired whether they wanted to back up the promotion of
certain policemen who, in the future, might be able to return the favor to them. When the appellant
asked in what way they could extend help, Oliver suggested that they look for somebody in Cagayan
from whom they could buy one (1) kilo of marijuana. He agreed to Oliver’s suggestion. The latter
handed to him the amount of P700.00 to cover the purchase of the marijuana. The appellant
immediately went to the terminal bound for Cagayan to look for somebody from that province who
could be of help. When he could not find anyone, he decided to personally take the trip. He then
instructed Gamiao to just go home to Vintar and inform his mother that he was going to Cagayan.
The appellant thereafter took a bus bound for Tuguegarao, Cagayan. After three (3) days, he was
able to buy one kilo of marijuana for P300.00. When he returned to Laoag City on August 12,
1994, he went to Ferd’s Upholstery Shop at 11:30 a.m. to inform Oliver that he had procured the
order. After seeing the marijuana, Oliver instructed him to take it and meet him at about 12:30 p.m.
of the same day in front of the Divine Word College where they would hand over the marijuana to
the policemen they intended to help.
At about 12:00 noon, the appellant arrived at Macmac’s Store and took his merienda. Momentarily,
Oliver arrived alone on a tricycle. Oliver summoned him and they walked southward, away from
the Macmac’s Store, looking for the policemen to whom they would deliver the marijuana. They
walked back northward, at which point they encountered an owner-type jeep which suddenly
stopped. He was nonplussed when Oliver grabbed him by the neck, seized his knapsack containing
the marijuana, and pushed him inside the jeep. He was made to sit beside the driver with another
policeman, while Oliver seated himself at the back seat with another policeman. The jeep they
were riding was followed by a patrol car. Still dazed at the sudden turn of events, he asked Oliver
four times, "Why is it that this is now happening to me(?)," but Oliver did not respond. At the
police station, he was immediately locked up. That afternoon, SPO4 Ventura and SPO2 Ramos,
accompanied by Oliver, brought him to the City Fiscal’s Office. He was later brought to the
provincial hospital where he was subjected to a physical check-up. That was the last time he saw or
heard of Oliver.14
On July 9, 1999, the court a quo rendered judgment,15 the dispositive portion of which reads :
WHEREFORE, premises considered, the Court is morally convinced beyond reasonable
doubt that the accused Manny Domingcil is GUILTY under Sec. 4 of Art. II, RA No. 6425,
as amended, otherwise known as the Dangerous Drugs Act of 1972. The quantity of
marijuana involved is more than 750 grams; hence, in accordance with Sec. 20, the penalty
provided for in Sec. 4, shall be applied. The accused is hereby sentenced to reclusion
perpetua with all its accessory penalties and to pay the costs.
Hence, the present appeal.
The appellant submits the following assignment of errors:
1. The lower Court erred in finding that the accused was not instigated in looking for
marijuana and bringing it to Laoag.
2. The lower Court erred in finding that the accused received the FIVE HUNDRED PESO
bill, despite his denial that he received the same and that his denial cannot prevail over the
 positive testimony of the police officers who are presumed to be regularly performing their
official duties, there being no improper motive attributed to them.
3. The lower Court erred in convicting the accused.16
The appellant contends that contrary to the collective testimonies of the prosecution witnesses, Oliver
instigated him to buy marijuana. The trial court erred in not giving credence and probative weight to
his testimony and in considering the testimonies of the witnesses of the prosecution.
The appeal has no merit.
Time and again, this Court has ruled that the evaluation by the trial court of the credibility of
witnesses is entitled to the highest respect and will not be disturbed on appeal unless certain facts of
substance and value were overlooked which, if considered, might affect the result of the case. The
reason for this rule is that the trial court is in a better position to decide thereon, having personally
heard the witnesses and observed their deportment and manner of testifying during the trial. 17 After a
thorough and careful review of the records of this case, we find that the guilt of the appellant was
sufficiently established by the evidence, and the trial court’s judgment is well-supported by law and
jurisprudence.
What is material to the prosecution for illegal sale of dangerous drugs is the proof that the sale
actually took place, coupled with the presentation in court of the corpus delicti as evidence.18 In this
case, the prosecution adduced proof beyond reasonable doubt that the appellant sold one (1) kilo of
marijuana to poseur-buyer SPO1 Orlando Dalusong in the entrapment operation.
Q   How has the case involving drug or marijuana involving the accused brought to your
attention or to your office, for that matter?
A   Our informant by the name of Belrey Oliver tipped of (sic) to us that he met Manny
Domingcil at the Upholstery Shop along Ablan Avenue and he also informed us that he
ordered P500.00 worth of marijuana.
Q   Who ordered from whom?
A   Belrey Oliver from Manny Domingcil, sir.
Q   By the way, who was the chief of the Intelligence Section of Laoag City PNP, at that time?
A   SPO4 Ventura, sir.
Q   Was he present when the informant Belrey Oliver tipped you of (sic) about this matter?
A   Yes, sir.
Q   And because of that information from Belrey Oliver, what did your Chief, SPO4
Ventura do?
A   SPO4 Ventura made or designed a plan purposely to conduct a buy-bust operation, sir.
Q   Where will the operation take place?
A   In front of Macmac Store, particularly, in front of the Divine Word College of Laoag,
sir.
Q   And did you have any participation in that operation?
A   Yes, sir, I acted as the poseur buy (sic).
Q   At what time was the operation scheduled to be executed?
A   1:30 P.M. of August 12, 1994, sir.
Q   For the said operation, what preparations, if any, did your group take?
A   Our Chief of Intelligence made a plan, sir.
Q   What was the plan?
A   To conduct the buy-bust operation, sir.
Q   And you said that you were to act as poseur buyer, anything was given to you in
connection with your specific participation?
A   I was given the buy-bust money in the amount of P500.00, sir.
Q   And what will you do with that P500.00?
A   The Chief of Intelligence, SPO4 Ventura directed me to reflect the serial number of the
money in the police blotter, the P500.00 to be used as marked money.
Q   And after the serial number was entered in the police blotter, what next did you do?
A   Before we went out of the station, the team or companions of SPO4 Ventura went
ahead to the place where the transaction will take place, sir.
Q   And who were the companions of SPO4 Ventura who went ahead?
A   Rosemarie Agustin, SPO2 Marlin Ramos and SPO4 Balolong, sir, while Oliver and
myself were the ones who went together.
Q   Who went ahead to the place where the sale will take place?
A   The team of SPO4 Ventura, sir.
Q   And did you reach the place where the transaction will take place? Q   That was what Oliver told you when he ordered the stuff?
A   Yes, sir. A   Yes, sir.
Q   Before you started to the place where the transaction will take place in front of the Divine Q   When Manny Domingcil said: "There is, pare," what transpired next, if any?
Word College of Laoag, did you know then the face of Manny Domingcil?
A   I told him: "Can I look at it" and he brought out a wrapped brick-type form wrapped in
A   No, sir. a newspaper inside an orange plastic bag.
Q   How did you know his face then? Q   And after he had brought out the said thing, what did you do with it?
A   Belrey Oliver, the informant, informed me that the person is Manny Domingcil. A   I checked the contents if it is real marijuana, sir.
Q   So, what you are saying is: when you arrived at the scene where the transaction would Q   You said the thing was wrapped with newspaper and you said you checked its
take place, Manny Domingcil was already there and that Belrey Oliver pointed him to you? contents?
A   Yes, sir. A   Yes, sir, I opened the wrapper, by making a small hole at the side.
Q   After that, what did you do with Belrey Oliver? Q   And what was the result of your inspection?
A   We went near Manny Domingcil, sir. A   I found out that it was real marijuana, sir.
Q   And after or as soon as you were near him, what happened next? Q   And, so what did you do then?
A   Belrey Oliver introduced Manny Domingcil to me as the buyer, sir. A   After I found out that it was marijuana I handed to Manny Domingcil the P500 peso
bill, sir.
Q   What did Oliver say?
Q   And as soon as you have handed the P500.00 bill, what did you do next?
A   "Pare, daytoy tay gumatangen", (which when translated into english[sic] means): "Pare,
this is the buyer." A   I gave the signal to my companions, sir.
Q   And so, what was the reaction of Manny Domingcil? Q   And what did your companions do when you gave the signal?
A   Before that I asked Manny Domingcil if he has the stuff that was ordered. A   They apprehended Manny Domingcil, sir.
Q   And what did he say? Q   What was your signal?
A   Manny Domingcil said: "There is, Pare." A   I scratched my head, sir.
Q   By the way, who ordered the stuff from Manny Domingcil? Q   And, what was your attire at that time you bought the brick-type marijuana from
Manny Domingcil?
A   Belrey Oliver, sir.
A   Ordinary clothes, sir, wearing slippers.
Q   Did you ask Oliver where he ordered that from Manny Domingcil?
Q   And all the time during your transaction with Manny Domingcil, where was Belrey
A   Yes, sir.
Oliver?
Q   Where?
A   At my side, sir.
A   At the Upholstery Shop at Ablan Avenue, sir.
 Q   And during the transaction, did Belrey Oliver say anything?
A   None, sir.
Q   And after giving your signal to your companion police officers who were nearby and they
rushed to your place where you were, what happened?
A   They apprehended Manny Domingcil, sir.
Q   And what about the marijuana which you said Manny Domingcil sold to you?
A   I handed it to SPO4 Rodrigo Ventura, sir.
Q   And what about the P500 peso bill, do you know what happened to it?
A   SPO2 Marlin Ramos recovered the P500 peso bill from the pocket of Manny Domingcil.
Q   And after arresting Manny Domingcil where did your group go?
A   To the police station, sir.
Q   Do you know if any records were made to your police station when you returned or
arrived there?
A   Yes, sir.
Q   What for example?
A   They made a request ... we reflected in the police blotter the apprehension of Manny
Domingcil, the confiscation of the marijuana and the recovery of the marked money in the
amount of P500.00.
Q   Was the serial number of the P500 bill you recovered from the pocket of Manny
Domingcil recorded?
A   Yes, sir.
Q   And do you know what happened to the stuff later on after you returned to the police
station?
A   They made a request to Dr. Adaya to conduct an initial examination on the confiscated
marijuana, sir.19
The foregoing testimony of SPO1 Orlando Dalusong was corroborated on material points by SPO4
Rodrigo Ventura, then Chief of the Intelligence Section of the PNP of Laoag City who organized and
conducted the operation and was part of the buy-bust team itself. 20 SPO4 Ventura remained steadfast
and unwavering on cross-examination despite intense grilling by the defense counsel. 21
Police Superintendent Theresa Ann Cid, the Forensic Chemist assigned at the PNP Crime
Laboratory Center at San Fernando, La Union, confirmed 22 Dr. Joseph Adaya’s initial finding 23
that the substance seized from the appellant was indeed marijuana, a prohibited drug.
It was also fairly established by SPO3 Diosdado Mamotos 24 and SPO1 Loreto Ancheta25 that the
confiscated marijuana was the same substance examined by the forensic chemist and later
presented as evidence in court.
The testimonies of the principal prosecution witnesses complement each other, giving a complete
picture of how the appellant’s illegal sale of the prohibited drug transpired, and how the sale led to
his apprehension in flagrante delicto. Their testimonies establish beyond doubt that dangerous
drugs were in the possession of the appellant who had no authority to possess or sell the same.
More importantly, all the persons who obtained and received the confiscated stuff did so in the
performance of their official duties. Unless there is clear and convincing evidence that the
members of the buy-bust team were inspired by any improper motive or were not properly
performing their duty, their testimonies on the buy-bust operation deserve full faith and credit. 26
The appellant’s bare denial of the crime charged and his barefaced claim that he was merely
instigated by Oliver into procuring the marijuana cannot prevail over the straightforward and
positive testimonies of the prosecution witnesses. It is incredible that the appellant, who had just
met Belrey Oliver in the course of his canvass for the upholstery of his brother’s jeepney, would
readily leave his errand behind and allow a stranger to talk him into buying a prohibited drug, a
known criminal activity for which he could be prosecuted, and if convicted, sentenced to reclusion
perpetua. All this he was willing to risk, in exchange for an empty promise of alleged future favors
from another who was also unknown to the appellant. The appellant supposedly traveled to and
spent almost three days in Tuguegarao, Cagayan, just to be able to accommodate a newly found
acquaintance, who handed the appellant the meager sum of P700.00 for the intended purpose. The
Court cannot give credence to such a preposterous stance as advanced by the appellant and
confirmed by his supposed corroborative witness, Ernesto Gamiao.
It is axiomatic that for testimonial evidence to be believed, it must not only proceed from the
mouth of a credible witness but must also be credible in itself such that common experience and
observation of mankind lead to the inference of its probability under the circumstances. In criminal
prosecution, the court is always guided by evidence that is tangible, verifiable and in harmony with
the usual course of human experience and not by mere conjecture or speculation. Testimonies that
do not adhere to this standard are necessarily accorded little weight or credence. 27 Besides,
instigation, or the appellant’s claim of a frame-up, is a defense that has been invariably viewed by
this Court with disfavor because the same can easily be concocted and is a common standard
defense ploy in most prosecutions for violations of the Dangerous Drugs Act. 28 Thus, in People vs.
Bongalon,29 the Court held:
As we have earlier stated, the appellant’s denial cannot prevail over the positive testimonies
of the prosecution witnesses. We are not unaware of the perception that, in some instances,
law enforcers resort to the practice of planting evidence to extract information or even to
harass civilians. However, like alibi, frame-up is a defense that has been viewed by the Court
with disfavor as it can easily be, concocted, hence, commonly used as a standard line of
defense in most prosecutions arising from violations of the Dangerous Drugs Act. We realize
the disastrous consequences on the enforcement of law and order, not to mention the well-
being of society, if the courts, solely on the basis of the policemen’s alleged rotten reputation,
accept in every instance this form of defense which can be so easily fabricated. It is precisely
for this reason that the legal presumption that official duty has been regularly performed
exists.
The failure of the prosecution to present Oliver, the police informant, does not enfeeble the
case for the prosecution. Informants are almost always never presented in court because of the
need to preserve their invaluable service to the police. Their testimony or identity may be
dispensed with inasmuch as his or her narration would be merely corroborative, especially so
in this case, when the poseur-buyer himself testified on the sale of the illegal drug. 30
The appellant’s claim that the prosecution offered in evidence a mere xerox copy of the P500.00 buy
money and did not account for its failure to adduce in evidence the original copy thereof is not
supported by the records. The records show that the original, and not merely a xerox copy of the
marked money, was in fact offered in evidence by the prosecution. 31 The appellant would surely have
objected if the prosecution had offered in evidence a mere xerox copy of the bill. The appellant did not
do so. The only ground for his objection to the admission of the marked money was that it was self-
serving.
Even if the xerox copy of the P500.00 bill was erroneously admitted in evidence by the trial court, the
absence of the original of the marked money is inconsequential. The marked money used in the buy-
bust operation is not indispensable in drug cases; 32 it is merely corroborative evidence. Moreover, the
appellant was charged not only for the sale of marijuana but also for the delivery thereof, which is
committed by the mere delivery or transfer of the prohibited drug. The consideration for the
transaction is of no moment.33
The law defines deliver as "a person’s act of knowingly passing a dangerous drug to another with or
without consideration."34 Considering that the appellant was charged with the sale and the delivery of
prohibited drugs, the consummation of the crime of delivery of marijuana may be sufficiently
established even in the absence of the marked money. The erasures and alterations in the Joint
Affidavit of the policemen involved in the buy-bust operation did not debilitate the case of the
prosecution. First. The Joint Affidavit of the policemen was not admitted in evidence for any party.
Second. The investigator who prepared the "Joint Affidavit" erroneously stated that the two
P500.00 bills were used by the policemen who conducted the buy-bust operation bearing Serial
Numbers AA823675 and G242745. As shown by the prosecution’s evidence the policemen used
only the P500.00 bill bearing Serial No. G242745 for the purchase of the drug. Hence, the "Joint
Affidavit" of the policemen had to be corrected to reflect the truth.
All told, the presumption of regularity in the performance of duty is, in this case, uncontradicted by
evidence to the contrary and, therefore, stands. This is bolstered by the fact that the prosecution’s
evidence fully shows and confirms such regularity. Accordingly, there exists no cogent reason to
reverse or even modify the findings of the trial court giving credence to the evidence of the
prosecution.
IN THE LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of
Laoag City, Branch 16, in Criminal Case No. 7079, finding the appellant guilty beyond reasonable
doubt of the crime of violation of Section 4, Article II of Republic Act No. 6425, is hereby
AFFIRMED.
SO ORDERED.
G.R. Nos. 96027-28             March 08, 2005
BRIG. GEN. LUTHER A. CUSTODIO*, CAPT. ROMEO M. BAUTISTA, 2nd LT. JESUS D.
CASTRO, SGT. CLARO L. LAT, SGT. ARNULFO B. DE MESA, C1C ROGELIO B.
MORENO, C1C MARIO E. LAZAGA, SGT. FILOMENO D. MIRANDA, SGT. ROLANDO
C. DE GUZMAN, SGT. ERNESTO M. MATEO, SGT. RODOLFO M. DESOLONG, A1C
CORDOVA G. ESTELO, MSGT. PABLO S. MARTINEZ, SGT. RUBEN AQUINO, SGT.
ARNULFO ARTATES, A1C FELIZARDO TARAN, Petitioners,
vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondents.
RESOLUTION
PUNO, J.:
Before us is a Motion To Re-Open Case With Leave Of Court filed by petitioners who were
convicted and sentenced to reclusion perpetua by the Sandiganbayan in Criminal Cases Nos.
10010 and 10011 for the double murder of Senator Benigno Aquino, Jr. and Rolando Galman on
August 21, 1983.1
Petitioners were members of the military who acted as Senator Aquino’s security detail upon his
arrival in Manila from his three-year sojourn in the United States. They were charged, together with
several other members of the military, before the Sandiganbayan for the killing of Senator Aquino
who was fatally shot as he was coming down from the aircraft of China Airlines at the Manila
International Airport. Petitioners were also indicted for the killing of Rolando Galman who was also
gunned down at the airport tarmac.
On December 2, 1985, the Sandiganbayan rendered a Decision in Criminal Cases Nos. 10010-10011
acquitting all the accused, which include the petitioners. However, the proceedings before the
Sandiganbayan were later found by this Court to be a sham trial. The Court thus nullified said
proceedings, as well as the judgment of acquittal, and ordered a re-trial of the cases. 2
A re-trial ensued before the Sandiganbayan.
In its decision dated September 28, 1990, the Sandiganbayan, while acquitting the other accused,
found the petitioners guilty as principals of the crime of murder in both Criminal Cases Nos. 10010
and 10011. It sentenced them to reclusion perpetua in each case.3 The judgment became final after
this Court denied petitioners’ petition for review of the Sandiganbayan decision for failure to show
reversible error in the questioned decision,4 as well as their subsequent motion for reconsideration. 5
In August 2004, petitioners sought legal assistance from the Chief Public Attorney who, in turn,
requested the Independent Forensic Group of the University of the Philippines to make a thorough
review of the forensic evidence in the double murder case. The petitioners, assisted by the Public
Attorney’s Office, now want to present the findings of the forensic group to this Court and ask the
Court to allow the re-opening of the cases and the holding of a third trial to determine the
circumstances surrounding the death of Senator Benigno Aquino, Jr. and Rolando Galman.
Petitioners invoke the following grounds for the re-opening of the case:
I evidence in the double murder case constitutes newly discovered evidence which would entitle
Existence of newly discovered pieces of evidence that were not available during the second
trial of the above-entitled cases which could have altered the judgment of the Sandiganbayan,
specifically:
A) Independent forensic evidence uncovering the false forensic claims that led to the
unjust conviction of the petitioners-movants.
B) A key defense eyewitness to the actual killing of Senator Benigno Aquino, Jr.
II
There was a grave violation of due process by reason of:
A) Insufficient legal assistance of counsel;
B) Deprivation of right to counsel of choice;
C) Testimonies of defense witnesses were under duress;
D) Willful suppression of evidence;
E) Use of false forensic evidence that led to the unjust conviction of the
petitioners-movants.
III
There was serious misapprehension of facts on the part of the Sandiganbayan based on
false forensic evidence, which entitles petitioners-movants to a re-trial.6
Petitioners seek to present as new evidence the findings of the forensic group composed of Prof.
Jerome B. Bailen, a forensic anthropologist from the University of the Philippines, Atty. Erwin P.
Erfe, M.D., a medico-legal practitioner, Benito E. Molino, M.D., a forensic consultant and Human
Rights and Peace Advocate, and Anastacio N. Rosete, Jr., D.M.D., a forensic dentistry consultant.
Their report essentially concludes that it was not possible, based on the forensic study of the
evidence in the double murder case, that C1C Rogelio Moreno fired at Senator Aquino as they
descended the service stairway from the aircraft. They posit that Senator Aquino was shot while he
was walking on the airport tarmac toward the waiting AVSECOM van which was supposed to
transport him from the airport to Fort Bonifacio. This is contrary to the finding of the
Sandiganbayan in the second trial that it was C1C Moreno, the security escort positioned behind
Senator Aquino, who shot the latter. The report also suggests that the physical evidence in these
cases may have been misinterpreted and manipulated to mislead the court. Thus, petitioners assert
that the September 28, 1990 decision of the Sandiganbayan should be voided as it was based on
false forensic evidence. Petitioners submit that the review by the forensic group of the physical
them to a new trial under Rule 121 of the 2000 Rules of Criminal Procedure. In addition to the
report of the forensic group, petitioners seek to present the testimony of an alleged eyewitness, the
driver of the waiting AVSECOM van, SPO4 Ruben M. Cantimbuhan. In his affidavit submitted to
this Court, SPO4 Cantimbuhan states that he saw a man in blue uniform similar to that of the
Philippine Airlines maintenance crew, suddenly fire at Senator Aquino as the latter was about to
board the van. The man in blue was later identified as Rolando Galman.
Petitioners pray that the Court issue a resolution:
1. [a]nnulling and setting aside this Honorable Court’s Resolutions dated July 23, 1991
and September 10, 1991;
 2. [a]nnulling and setting aside the Decision of the Sandiganbayan (3 rd Division) dated
September 28, 1990 in People vs. Custodio, et al., Case No. 10010-10011[;]
3. [o]rdering the re-opening of this case; [and]
4. [o]rdering the Sandiganbayan to allow the reception of additional defense evidence/re-trial
in the above entitled cases.7
The issue now is whether petitioners are entitled to a third trial under Rule 121 of the 2000 Rules of
Criminal Procedure.
The pertinent sections of Rule 121 of the 2000 Rules of Criminal Procedure provide:
Section 1. New Trial or reconsideration. — At any time before a judgment of conviction
becomes final, the court may, on motion of the accused or at its own instance but with the
consent of the accused, grant a new trial or reconsideration.
Sec. 2. Grounds for a new trial. — The court shall grant a new trial on any of the following
grounds:
(a) That errors of law or irregularities prejudicial to the substantial rights of the
accused have been committed during the trial;
(b) That new and material evidence has been discovered which the accused could
not with reasonable diligence have discovered and produced at the trial and
which if introduced and admitted would probably change the judgment.
xxx
Sec. 6. Effects of granting a new trial or reconsideration. — The effects of granting a new
trial or reconsideration are the following:
(a) When a new trial is granted on the ground of errors of law or irregularities
committed during the trial, all the proceedings and evidence affected thereby shall be
set aside and taken anew. The court may, in the interest of justice, allow the
introduction of additional evidence.
(b) When a new trial is granted on the ground of newly discovered evidence, the
evidence already adduced shall stand and the newly-discovered and such other
evidence as the court may, in the interest of justice, allow to be introduced shall be
taken and considered together with the evidence already in the record.
(c) In all cases, when the court grants new trial or reconsideration, the original
judgment shall be set aside or vacated and a new judgment rendered accordingly.
(emphasis supplied)
In line with the objective of the Rules of Court to set guidelines in the dispensation of justice, but
without shackling the hands that dispense it, the remedy of new trial has been described as "a new
invention to temper the severity of a judgment or prevent the failure of justice." 8 Thus, the Rules
allow the courts to grant a new trial when there are errors of law or irregularities prejudicial to the
substantial rights of the accused committed during the trial, or when there exists newly discovered
evidence. In the proceedings for new trial, the errors of law or irregularities are expunged from the
record or new evidence is introduced. Thereafter, the original judgment is vacated and a new one is
rendered.9
Under the Rules, a person convicted of a crime may avail of the remedy of new trial before the
judgment of conviction becomes final. Petitioners admit that the decision of the Sandiganbayan in
Criminal Cases Nos. 10010 and 10011 became final and executory upon denial of their petition for
review filed before this Court and their motion for reconsideration. Entry of judgment has in fact
been made on September 30, 1991. 10 Nonetheless, they maintain that equitable considerations
exist in this case to justify the relaxation of the Rules and re-open the case to accord petitioners the
opportunity to present evidence that will exonerate them from the charges against them. We do not
find merit in their submission.
Petitioners anchor their motion on the ground of newly discovered evidence. Courts are generally
reluctant in granting motions for new trial on the ground of newly discovered evidence for it is
presumed that the moving party has had ample opportunity to prepare his case carefully and to
secure all the necessary evidence before the trial. Such motions are treated with great caution due
to the danger of perjury and the manifest injustice of allowing a party to allege that which may be
the consequence of his own neglect to defeat an adverse judgment. Hence, the moving party is
often required to rebut a presumption that the judgment is correct and that there has been a lack of
due diligence, and to establish other facts essential to warrant the granting of a new trial on the
ground of newly discovered evidence.11 This Court has repeatedly held that before a new trial may
be granted on the ground of newly discovered evidence, it must be shown (1) that the evidence
was discovered after trial; (2) that such evidence could not have been discovered and produced at
the trial even with the exercise of reasonable diligence; (3) that it is material, not merely
cumulative, corroborative, or impeaching; and (4) the evidence is of such weight that it would
probably change the judgment if admitted. If the alleged newly discovered evidence could have
been very well presented during the trial with the exercise of reasonable diligence, the same cannot
be considered newly discovered.12
These standards, also known as the "Berry" rule, trace their origin to the 1851 case of Berry vs.
State of Georgia13 where the Supreme Court of Georgia held:
Applications for new trial on account of newly discovered evidence, are not favored by the
Courts. x x x Upon the following points there seems to be a pretty general concurrence of
authority, viz; that it is incumbent on a party who asks for a new trial, on the ground of newly
discovered evidence, to satisfy the Court, 1 st. That the evidence has come to his knowledge
since the trial. 2d. That it was not owing to the want of due diligence that it did not come
sooner. 3d. That it is so material that it would produce a different verdict, if the new trial were
granted. 4th. That it is not cumulative only — viz; speaking to facts, in relation to which there
was evidence on the trial. 5th. That the affidavit of the witness himself should be produced, or
its absence accounted for. And 6th, a new trial will not be granted, if the only object of the
testimony is to impeach the character or credit of a witness. (citations omitted)
These guidelines have since been followed by our courts in determining the propriety of motions for
new trial based on newly discovered evidence.
It should be emphasized that the applicant for new trial has the burden of showing that the new
evidence he seeks to present has complied with the requisites to justify the holding of a new trial.
The threshold question in resolving a motion for new trial based on newly discovered evidence is
whether the proferred evidence is in fact a "newly discovered evidence which could not have been
discovered by due diligence." The question of whether evidence is newly discovered has two
aspects: a temporal one, i.e., when was the evidence discovered, and a predictive one, i.e., when
should or could it have been discovered. It is to the latter that the requirement of due diligence has
relevance.14 We have held that in order that a particular piece of evidence may be properly regarded
as newly discovered to justify new trial, what is essential is not so much the time when the evidence
offered first sprang into existence nor the time when it first came to the knowledge of the party now
submitting it; what is essential is that the offering party had exercised reasonable diligence in seeking
to locate such evidence before or during trial but had nonetheless failed to secure it. 15
The Rules do not give an exact definition of due diligence, and whether the movant has exercised due
diligence depends upon the particular circumstances of each case. 16 Nonetheless, it has been observed
that the phrase is often equated with "reasonable promptness to avoid prejudice to the defendant." In
other words, the concept of due diligence has both a time component and a good faith component.
The movant for a new trial must not only act in a timely fashion in gathering evidence in support of
the motion; he must act reasonably and in good faith as well. Due diligence contemplates that the
defendant acts reasonably and in good faith to obtain the evidence, in light of the totality of the
circumstances and the facts known to him.17
Applying the foregoing tests, we find that petitioners’ purported evidence does not qualify as
newly discovered evidence that would justify the re-opening of the case and the holding of a third
trial.
The report of the forensic group may not be considered as newly discovered evidence as petitioners
failed to show that it was impossible for them to secure an independent forensic study of the
physical evidence during the trial of the double murder case. It appears from their report that
the forensic group used the same physical and testimonial evidence proferred during the
trial, but made their own analysis and interpretation of said evidence. They cited the materials
and methods that they used for their study, viz:
MATERIALS AND METHODS
MATERIALS:
a. Court records of the case, especially photographs of: a) the stairway where the late Sen.
Aquino and his escorts descended; b) the part of the tarmac where the lifeless bodies of the
late Sen. Aquino and Galman fell; and c) the autopsy conducted by the NBI Medico-legal
team headed by Dr. Mu[ñ]oz; and the autopsy report of the late Sen. Benigno Aquino[,] Jr.
signed by Dr. Mu[ñ]oz and Dr. Solis;
b. The gun and live ammunitions collected at the crime scene;
c. A reference human skull photos and X-rays of the same to demonstrate wound location
and bullet trajectory;
d. The reports of interviews and statements by the convicted military escorts, and other
witnesses;
e. Re-enactment of the killing of Aquino based on the military escorts[’] version, by the
military escorts themselves in the Bilibid Prison and by volunteers at the NAIA Tarmac;
f. Various books and articles on forensic and the medico-legal field[;]
g. Results of Forensic experiments conducted in relation to the case.
METHODS:
a. Review of the forensic exhibits presented in the court;
b. Review of TSNs relevant to the forensic review;
 c. Study of and research on the guns, slugs and ammunitions allegedly involved in the crime;
d. Interviews/re-enactment of the crime based on the military’s accounts, both in the Bilibid
Prison where the convicts are confined and the MIA (now NAIA) stairway and tarmac;
e. Conduct of ocular inspection and measurements on the actual crime scene (stairway and
tarmac) at the old Manila International Airport (now NAIA);
f. Retracing the slug’s trajectory based on the autopsy reports and experts’ testimonies using
an actual human skull;
g. X-rays of the skull with the retraced trajectory based on the autopsy report and experts’
testimonies;
h. Evaluation of the presented facts and opinions of local experts in relation to accepted
forensic findings in international publications on forensic science, particularly on guns and
[gunshot] wound injuries;
i. Forensic experiments and simulations of events in relation to this case.18
These materials were available to the parties during the trial and there was nothing that prevented the
petitioners from using them at the time to support their theory that it was not the military, but Rolando
Galman, who killed Senator Aquino. Petitioners, in their present motion, failed to present any new
forensic evidence that could not have been obtained by the defense at the time of the trial even with
the exercise of due diligence. If they really wanted to seek and offer the opinion of other forensic
experts at the time regarding the physical evidence gathered at the scene of the crime, there was ample
opportunity for them to do so before the case was finally submitted and decided. 19
A reading of the Sandiganbayan decision dated September 28, 1990 shows a thorough study by the
court of the forensic evidence presented during the trial, viz:
COURT FINDINGS
As to the physical
evidence
Great significance has to be accorded the trajectory of the single bullet that penetrated the
head and caused the death of Sen. Benigno Aquino, Jr. Basic to the question as to trajectory
ought to be the findings during the autopsy. The prosector in the autopsy, Dr. Bienvenido
Muñoz, NBI Medico-Legal Officer, reported in his Autopsy Report No. N-83-22-36, that the
trajectory of the gunshot, the wound of entrance having been located at the mastoid region,
left, below the external auditory meatus, and the exit wound having been at the anterior
portion of the mandible, was "forward, downward and medially." (Autopsy Report No. N-
83-22-36, Exhibit "NNNN-2-t-2")
A controversy as to this trajectory came about when, upon being cross-examined by
counsel for the defense, Dr. Bienvenido Muñoz made a significant turn-about by stating
that the correct trajectory of the fatal bullet was "upward, downward, and medially." The
present position of Dr. Muñoz is premised upon the alleged fact that he found the petrous
bone fractured, obviously hit by the fatal bullet. He concluded, in view of this finding, that
the fatal bullet must have gone upward from the wound of entrance. Since the fatal bullet
exited at the mandible, it is his belief that the petrous bone deflected the trajectory of the
bullet and, thus, the bullet proceeded downwards from the petrous bone to the mandible.
This opinion of Dr. Bienvenido Muñoz in this regard notwithstanding, We hold that the
trajectory of the fatal bullet which killed Sen. Benigno Aquino, Jr. was, indeed, "forward,
downward and medially." For the reason that the wound of entrance was at a higher
elevation than the wound of exit, there can be no other conclusion but that the trajectory
was downward. The bullet when traveling at a fast rate of speed takes a straight path from
the wound of entrance to the wound of exit. It is unthinkable that the bullet, while
projected upwards, would, instead of exiting to the roof of the head, go down to the
mandible because it was allegedly deflected by a petrous bone which though hard is in fact
a mere spongy protuberance, akin to a cartilage.
Clear is proof of the downward trajectory of the fatal bullet; First, as Dr. Pedro Solis and
Dr. Ceferino Cunanan, the immediate superiors of Dr. Bienvenido Muñoz, manifested
before the Court, that, since the wound of entrance appeared ovaloid and there is what is
known as a contusion collar which was widest at the superior portion, indicating an acute
angle of approach, a downward trajectory of the bullet is indicated. This phenomenon
indicates that the muzzle of the fatal gun was at a level higher than that of the point of
entry of the fatal bullet.
There was no showing as to whether a probe could have been made from the wound of
entrance to the petrous bone. Out of curiosity, Dr. Juanito Billote tried to insert a probe
from the wound of exit into the petrous bone. He was unsuccessful notwithstanding four or
five attempts. If at all, this disproves the theory of Dr. Muñoz that the trajectory was
upward, downward and medially. On the other hand, Dr. Juanito Billote and photographer
Alexander Loinaz witnessed the fact that Dr. Muñoz’[s] understudy, Alejandrino Javier,
had successfully made a probe from the wound of entrance directly towards the wound of
exit. Alejandrino Javier shouted with excitement upon his success and Alexander Loinaz
promptly photographed this event with Alejandrino Javier holding the protruding end of
the probe at the mandible. (Exhibit "XXXXX-39-A")
To be sure, had the main bullet hit the petrous bone, this spongy mash of cartilage would have
been decimated or obliterated. The fact that the main bullet was of such force, power and
speed that it was able to bore a hole into the mandible and crack it, is an indication that it
could not have been stopped or deflected by a mere petrous bone. By its power and force, it
must have been propelled by a powerful gun. It would have been impossible for the main
bullet to have been deflected form an upward course by a mere spongy protuberance.
Granting that it was so deflected, however, it could not have maintained the same power and
force as when it entered the skull at the mastoid region so as to crack the mandible and make
its exit there.
But what caused the fracture of the petrous bone? Was there a cause of the fracture, other than
that the bullet had hit it? Dr. Pedro Solis, maintaining the conclusion that the trajectory of the
bullet was downward, gave the following alternative explanations for the fracture of the
petrous bone:
First, the petrous bone could have been hit by a splinter of the main bullet, particularly, that
which was found at the temporal region; and,
Second, the fracture must have been caused by the kinetic force applied to the point of
entrance at the mastoid region which had the tendency of being radiated towards the petrous
bone.
Thus, the fracture in the occipital bone, of the temporal bone, and of the parietal bone, Dr.
Pedro Solis pointed out, had been caused by the aforesaid kinetic force. When a force is
applied to the mastoid region of the head, Dr. Pedro Solis emphasized, a radiation of forces is
distributed all over the cranial back, including, although not limited to, the parietal bone. The
skull, Dr. Solis explains, is a box-like structure. The moment you apply pressure on the
portion, a distortion, tension or some other mechanical defect is caused. This radiation of
forces produces what is known as the "spider web linear fracture" which goes to different
parts of the body. The so-called fracturing of the petrous portion of the left temporal bone is
one of the consequences of the kinetic force forcefully applied to the mastoid region.
The fact that there was found a fracture of the petrous bone is not necessarily indicative of the
theory that the main bullet passed through the petrous bone.
Doubt was expressed by Dr. Pedro Solis as to whether the metal fragments alleged by Dr.
Bienvenido Muñoz to have been found by him inside the skull or at the wound of exit were
really parts of the main bullet which killed the Senator. When Dr. Pedro Solis examined these
fragments, he found that two (2) of the fragments were larger in size, and were of such
shapes, that they could not have gone out of the wound of exit considering the size and shape
of the exit wound.
Finding of21 a downward
trajectory of the
fatal bullet fatal
to the credibility
of defense witnesses.
The finding that the fatal bullet which killed Sen. Benigno Aquino, Jr. was directed
downwards sustains the allegation of prosecution eyewitnesses to the effect that Sen.
Benigno Aquino, Jr. was shot by a military soldier at the bridge stairs while he was being
brought down from the plane. Rebecca Quijano saw that the senator was shot by the
military man who was directly behind the Senator while the Senator and he were
descending the stairs. Rebecca Quijano’s testimony in this regard is echoed by Jessie
Barcelona, Ramon Balang, Olivia Antimano, and Mario Laher, whose testimonies this
Court finds likewise as credible.
The downward trajectory of the bullet having been established, it stands to reason that the
gun used in shooting the Senator was fired from an elevation higher than that of the wound
of entrance at the back of the head of the Senator. This is consistent with the testimony of
prosecution witnesses to the effect that the actual killer of the Senator shot as he stood at
the upper step of the stairs, the second or third behind Senator Aquino, while Senator
Aquino and the military soldiers bringing him were at the bridge stairs. This is likewise
consistent with the statement of Sandra Jean Burton that the shooting of Senator Aquino
occurred while the Senator was still on the bridge stairs, a conclusion derived from the fact
that the fatal shot was fired ten (10) seconds after Senator Aquino crossed the service door
and was led down the bridge stairs.
It was the expert finding of Dr. Matsumi Suzuki that, as was gauged from the sounds of
the footsteps of Senator Aquino, as the Senator went down the bridge stairs, the shooting
of the Senator occurred while the Senator had stepped on the 11th step from the top.
At the ocular inspection conducted by this Court, with the prosecution and the defense in
attendance, it should be noted that the following facts were established as regards the
bridge stairs:
"Observations:
The length of one block covering the tarmac – 19’6";
The width of one block covering the tarmac – 10’;
The distance from the base of the staircase leading to the emergency tube to the Ninoy
marker at the tarmac – 12’6";
 There are 20 steps in the staircase including the landing;
The distance from the first rung of the stairway up to the 20 th rung which is the landing of
stairs – 20’8";
Distance from the first rung of the stairway up to the 20th rung until the edge of the exit door
– 23’11";
Distance from the 4th rung up to the exit door – 21’;
Distance from the 5th rung up to the exit door – 19’11";
Length of one rung including railpost – 3’4";
Space between two rungs of stairway – 9";
Width of each rung – 11-1/2";
Length of each rung (end to end) – 2’9":
Height of railpost from edge of rung to railing – 2’5".
(underlining supplied)20
The Sandiganbayan again exhaustively analyzed and discussed the forensic evidence in its resolution
dated November 15, 1990 denying the motion for reconsideration filed by the convicted accused. The
court held:
The Autopsy Report No. N-83-2236, Exhibit "NNNN-2-t-2" indicated a downward trajectory of the
fatal bullet when it stated that the fatal bullet was "forward, downward, and medially . . ."
xxx
II
The wound of entrance having been at a higher elevation than the wound of exit, there can be
no other conclusion but that the trajectory was downward. The fatal bullet, whether it be a
Smith and Wesson Caliber .357 magnum revolver or a .45 caliber, must have traveled at a fast
rate of speed and it stands to reason that it took a straight path from the wound of entrance to
the wound of exit. A hole indicating this straight path was proven to have existed. If, as
contended on cross-examination by Dr. Bienvenido Muñoz, that the bullet was projected
upwards, it ought to have exited at the roof of the head. The theory that the fatal bullet was
deflected by a mere petrous bone is inconceivable.
III
Since the wound of entrance appeared ovaloid and there is what is known as a contusion
collar which was widest at the superior portion, indicating an acute angle of approach, a
downward trajectory of the fatal bullet is conclusively indicated. This phenomenon
indicates that the muzzle of the fatal gun was at a level higher than that of the point of
entry of the fatal bullet.
IV
There was no hole from the petrous bone to the mandible where the fatal bullet had exited
and, thus, there is no support to the theory of Dr. Bienvenido Muñoz that the fatal bullet
had hit the petrous bone on an upward trajectory and had been deflected by the petrous
bone towards the mandible. Dr. Juanito Billote’s testimony in this regard had amplified the
matter with clarity.
xxx
These physical facts, notwithstanding the arguments and protestations of counsel for the
defense as now and heretofore avowed, compel the Court to maintain the holding: (1) that
the trajectory of the fatal bullet which hit and killed Senator Benigno Aquino, Jr. was
"forward, downward and medially"; (2) that the Senator was shot by a person who stood at
a higher elevation than he; and (3) that the Senator was shot and killed by CIC Rogelio
Moreno on the bridge stairs and not on the tarmac, in conspiracy with the rest of the
accused convicted herein.21
This Court affirmed said findings of the Sandiganbayan when it denied the petition for review in
its resolution of July 25, 1991. The Court ruled:
The Court has carefully considered and deliberated upon all the contentions of the
petitioners but finds no basis for the allegation that the respondent Sandiganbayan has
gravely erred in resolving the factual issues.
The attempt to place a constitutional dimension in the petition is a labor in vain. Basically,
only questions of fact are raised. Not only is it axiomatic that the factual findings of the
Sandiganbayan are final unless they fall within specifically recognized exceptions to the
rule but from the petition and its annexes alone, it is readily apparent that the respondent
Court correctly resolved the factual issues.
xxx
The trajectory of the fatal bullet, whether or not the victim was descending the stairway or
was on the tarmac when shot, the circumstances showing conspiracy, the participants in
the conspiracy, the individual roles of the accused and their respective parts in the
conspiracy, the absence of evidence against thirteen accused and their co-accused Col.
 Vicente B. Tigas, Jr., the lack of credibility of the witnesses against former Minister Jose D.
Aspiras, Director Jesus Z. Singson, Col. Arturo A. Custodio, Hermilo Gosuico, Major General
Prospero Olivas, and the shooting of Rolando Galman are all factual matters w[h]ich the
respondent court discussed with fairness and at length. The petitioners’ insistence that a few
witnesses in their favor should be believed while that of some witnesses against them should
be discredited goes into the question of credibility of witnesses, a matter which under the
records of this petition is best left to the judgment of the Sandiganbayan. 22
The report of the forensic group essentially reiterates the theory presented by the defense during
the trial of the double murder case. Clearly, the report is not newly discovered, but rather recently
sought, which is not allowed by the Rules.23 If at all, it only serves to discredit the version of the
prosecution which had already been weighed and assessed, and thereafter upheld by the
Sandiganbayan.
The same is true with the statement of the alleged eyewitness, SPO4 Cantimbuhan. His narration
merely corroborates the testimonies of other defense witnesses during the trial that they saw Senator
Aquino already walking on the airport tarmac toward the AVSECOM van when a man in blue-gray
uniform darted from behind and fired at the back of the Senator’s head. 24 The Sandiganbayan,
however, did not give weight to their account as it found the testimonies of prosecution eyewitnesses
Rebecca Quijano and Jessie Barcelona more credible. Quijano and Barcelona testified that they saw
the soldier behind Senator Aquino on the stairway aim and fire a gun on the latter’s nape. As earlier
quoted, the Sandiganbayan found their testimonies to be more consistent with the physical evidence.
SPO4 Cantimbuhan’s testimony will not in any way alter the court’s decision in view of the
eyewitness account of Quijano and Barcelona, taken together with the physical evidence presented
during the trial. Certainly, a new trial will only be allowed if the new evidence is of such weight
that it would probably change the judgment if admitted. 25 Also, new trial will not be granted if
the new evidence is merely cumulative, corroborative or impeaching.
As additional support to their motion for new trial, petitioners also claim that they were denied due
process because they were deprived of adequate legal assistance by counsel. We are not persuaded.
The records will bear out that petitioners were ably represented by Atty. Rodolfo U. Jimenez during
the trial and when the case was elevated to this Court. An experienced lawyer in criminal cases, Atty.
Jimenez vigorously defended the petitioners’ cause throughout the entire proceedings. The records
show that the defense presented a substantial number of witnesses and exhibits during the trial. After
the Sandiganbayan rendered its decision, Atty. Jimenez filed a petition for review with this Court,
invoking all conceivable grounds to acquit the petitioners. When the Court denied the petition for
review, he again filed a motion for reconsideration exhausting his deep reservoir of legal talent. We
therefore find petitioners’ claim to be unblushingly unsubstantiated. We note that they did not allege
any specific facts in their present motion to show that Atty. Jimenez had been remiss in his duties as
counsel. Petitioners are therefore bound by the acts and decisions of their counsel as regards the
conduct of the case. The general rule is that the client is bound by the action of his counsel in the
conduct of his case and cannot be heard to complain that the result of the litigation might have
been different had his counsel proceeded differently.26 We held in People vs. Umali:27
In criminal as well as civil cases, it has frequently been held that the fact that blunders and
mistakes may have been made in the conduct of the proceedings in the trial court, as a
result of the ignorance, inexperience, or incompetence of counsel, does not furnish a
ground for a new trial.
If such grounds were to be admitted as reasons for reopening cases, there would never be
an end to a suit so long as new counsel could be employed who could allege and show that
prior counsel had not been sufficiently diligent, or experienced, or learned.
So it has been held that mistakes of attorneys as to the competency of a witness, the
sufficiency, relevancy, materiality, or immateriality of a certain evidence, the proper
defense, or the burden of proof are not proper grounds for a new trial; and in general the
client is bound by the action of his counsel in the conduct of his case, and can not be heard
to complain that the result of the litigation might have been different had counsel
proceeded differently. (citations omitted)
Finally, we are not moved by petitioners’ assertion that the forensic evidence may have been
manipulated and misinterpreted during the trial of the case. Again, petitioners did not allege
concrete facts to support their crass claim. Hence, we find the same to be unfounded and purely
speculative.
IN VIEW WHEREOF, the motion is DENIED.
SO ORDERED.
II. BASIC CONCEPTS
23G.R. No. 180501             December 24, 2008
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROGER MENDOZA y DELA CRUZ, accused-appellant.
DECISION
VELASCO, JR., J.:
This is an appeal from the Decision dated June 29, 2007 of the Court of Appeals (CA) in CA-G.R.
CR-H.C. No. 00651, modifying the Decision dated October 27, 2004 of the Regional Trial Court
(RTC), Branch 276 in Muntinlupa City in Criminal Case No. 00-410. The RTC adjudged accused-
appellant Roger Mendoza guilty of rape.
The Facts
On April 28, 2000, accused-appellant was charged with rape in an Information which reads as follows:
That on or about the 25 th day of April 2000, in the city of Muntinlupa, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, with lewd design, with
force, intimidation and grave abuse of confidence, accused being employed as a driver in the
business of the father of [AAA],1 a six (6) year old minor, did then and there willfully,
unlawfully and feloniously insert his finger inside the latter’s vagina against the will and
consent of the said complainant.
Contrary to law.2
When arraigned, accused-appellant entered a plea of not guilty.
During trial, the prosecution presented AAA and both her parents as witnesses. Accused-appellant
appeared as the lone witness for the defense.
The gist of AAA’s account of the incident is as follows: It occurred in the early afternoon of April 25,
2000 after her parents had left for work. She was then six (6) years old. At home with her on that day
was the maid and accused-appellant, who was reapplying as family driver. As she was playing with
the water hose in the garage, her dress got wet forcing her to repair to her room to change. Accused-
appellant followed. Once inside the room, accused-appellant tried to undress her, tightly held her
hands, and told her to lie in the bed. He thereupon pulled her panties down. In reaction, she pulled it
up but accused-appellant quickly pulled it down again. It was at this moment when, according to
AAA, accused-appellant touched her vagina with his fingers and kissed her on the left cheek. All the
while, he repeatedly assured her of being her friend and that they were just playing the mother-and-
father roles. Shortly after, she ran to her parents’ room and locked the door. Accused-appellant
followed but left after AAA ignored his insistence to continue with the father-mother game.
Later in the evening, AAA told her parents about her ordeal, after which they reported the matter to
barangay officials and the police. AAA was then asked to undergo a medical examination.3
In the course of her direct examination, AAA was presented a sketch of a female body to assist her
pinpoint what part of her body accused-appellant touched. In response, she shaded the area in between
the legs of the female figure.4
AAA’s father testified that accused-appellant first applied as a driver in 1995. He came back to
reapply on April 24, 2000, was asked to drive on that day, and stayed for the night. The following
morning, her father left early for work leaving the still sleeping applicant behind.
The father narrated what his daughter disclosed when he arrived home from work, adding that,
when he routinely called the house at about 3:00 in the afternoon, the answering AAA called
accused-appellant "bastos" and explained why so.
AAA’s mother corroborated for the most part her husband’s testimony. She attested that AAA was
only six years old when it happened.
Testifying in his defense, accused-appellant admitted to being at AAA’s family home on April 24,
2000 and staying overnight. He remained in the house the following day waiting for AAA’s father
to return so he could collect what he earned for a day’s work. To while his time away, he went
outside to watch and talk to persons doing road repair work. And while outside, he suddenly felt
water falling upon him. As it turned out, AAA was playing in the yard with the water hose aimed at
him, which he did not mind.5 She continued to play with the hose and ended up flooding the
garage. Thereafter, he asked the road workers about the possibility of working with them only to be
told he would need a barangay clearance. He then left, returning a few days later to submit his
clearance to the workers’ foreperson and to collect his one-day salary. According to accused-
appellant, AAA’s father was so angry at him for not waiting last April 25, 2000 that he pushed
accused-appellant and banged his head against the garage wall. After AAA’s mother pacified her
irate husband, barangay officials arrived and brought accused-appellant to the police station. Once
there, accused-appellant was charged with molesting AAA, who, however, did not say anything at
the police station; it was her mother who answered all the questions of the police investigator. He
was charged with fingering the sexual organ of AAA. He denied the accusation, asserting that he
did not touch the child, being outside their house on the day in question watching men doing road
repair work.6
On October 27, 2004, the RTC rendered judgment finding accused-appellant guilty of rape. The
dispositive portion of the RTC’s decision reads:
Under these declarations and these statutes, the Court is convinced that the crime of Rape
has been committed by accused ROGER MENDOZA Y DELA CRUZ as defined and
penalized by the aforesaid laws. He is therefore sentenced to suffer imprisonment for all of
his natural life or to life imprisonment. This sentence will be served at the New Bilibid
Prison, pending appeal should he desire to so appeal. The Jail Warden is therefore directed
to commit the said Accused, to the said prison.
It is SO ORDERED.7
Accused-appellant appealed the RTC decision to the CA. Before the appellate court, accused-appellant
raised the following errors allegedly committed by the trial court: (1) in not dismissing the case on
account of the violation of his right to speedy trial; (2) in considering the prosecution’s testimonial
evidence which was not formally offered; and (3) in convicting him for rape without the prosecution
presenting proof of his guilt beyond reasonable doubt.
As preliminarily indicated, the CA modified the RTC’s decision, the modification consisting of
downgrading the crime to and finding accused-appellant guilty of acts of lasciviousness, a crime
which is necessarily included in the offense charged in the underlying Information. The fallo of the
CA decision dated June 29, 2007 reads, as follows:
WHEREFORE, in light of all the foregoing, the October 27, 2004 Decision of the Regional
Trial Court of Muntinlupa City, Branch 276 in Criminal Case No. 00-410 finding accused-
appellant guilty of the crime of rape and sentencing him to life imprisonment, is hereby
MODIFIED. Accused-appellant Roger Mendoza y De La Cruz is found guilty beyond
reasonable doubt of the crime of acts of lasciviousness, as defined and penalized under article
336 of the Revised Penal Code, in relation to Article III, Section 5 (b), of Republic Act No.
7610, and is sentenced to suffer the indeterminate penalty of 12 years and 1 day of reclusion
temporal, as minimum, to 15 years, 6 [months] and 20 days of reclusion temporal as
maximum and to pay the victim the amount of P30,000.00.
SO ORDERED.8
The CA predicated its modificatory disposition on the interplay of the following premises: The RTC
hastily concluded that rape was committed because there was insertion by accused-appellant’s finger
into the private part of AAA.9 The records, however, show that accused-appellant merely stroked the
external surface of AAA’s vagina.10 The medical findings also showed that there was no physical
manifestation of insertion into AAA’s vagina, bolstering the inference that no insertion took place. 11
On July 12, 2007, accused-appellant filed his Notice of Appeal of the CA decision.
On February 18, 2008, the Court required the parties to submit supplemental briefs if they so desired.
They, however, manifested willingness to submit the case on the basis of available records, logically
suggesting that they are, in the main, reiterating the very same arguments they raised before the CA.
Thus, the issues tendered in this appeal may be formulated, as follows:
1) whether or not accused-appellant’s right to speedy trial was violated below;
2) whether or not the trial court erred in considering the testimonial evidence of the
prosecution not formally offered;
3) whether or not the CA erred in convicting accused-appellant for the crime of acts of
lasciviousness on the basis of the evidence presented.
The Court’s Ruling
Right to Speedy Trial Not Violated
Accused-appellant states that while he has been detained since April 26, 2000, his arraignment
came only on March 2, 2001 and the prosecution started to present its evidence only on May 9,
2001. To compound matters, the prosecution was not deemed to have terminated its presentation of
evidence until April 14, 2004.12 Accused-appellant thus argues that the delays attending his case
should have been enough for the trial court to have dismissed it.
The Court is not convinced.
The right to speedy trial, as an adjunct to the right of all persons to a speedy disposition of their
cases before judicial and quasi-judicial bodies, requires that court proceedings should be conducted
according to fixed rules and must be free from vexatious, capricious, and oppressive delays. 13 The
same right may also be considered violated when unjustified postponements of the trial are asked
for and secured; or when without cause or justifiable motive, a long period of time is allowed to
elapse without the parties having their case tried. 14 None of these circumstances are, to us, present
in the instant case. While perhaps there might have been delays, accused-appellant does not state in
some detail what or who caused the delays, or whether these are of the vexatious or oppressive
kind.
What is more, accused-appellant belatedly invoked his right to speedy trial only before the CA.
The proceedings cannot now be claimed to be attended by vexatious, capricious, and oppressive
delays. Accused-appellant cannot plausibly seek the protection of the law to benefit from the
adverse effects of his failure to assert his right at the first instance. 15 As the CA correctly and
judiciously observed:
As can be gleaned from the records, accused-appellant never invoked in the RTC that he
has been deprived of his right to speedy trial and speedy disposition of case. As it is, any
allegation of violations of rights should first be ventilated with the RTC concomitant with
the prayer to dismiss the case with prejudice. It is a bit too late in the day for herein
accused-appellant to invoke now his right to speedy trial (People vs. Tee, 395 SCRA 443
[2003]). By raising this point belatedly with the [CA], accused-appellant has thus waived
his objection and accordingly forfeits his right to the aforesaid constitutional guarantees. 16
xxx
Objection to Prosecution’s Defective Offer of Evidence Waived
Accused-appellant next questions the manner in which AAA’s testimonial evidence was offered. He ATTY GARCIA
claims that her testimony was only offered for the purpose of establishing her minority, 17 not to Witness pointing to the private part. You just say, what do you call that? What do
establish the fact of molestation. The trial court, he says, supposedly erred in considering evidence you call that? When you pointed to this, what do you call that?
which did not conform to the purpose specified in the offer, in accordance with Section 34 of Rule 132
xxxx
of the Rules of Court.18
COURT
Accused-appellant posture is valid to a point. But despite the improper formal offer of AAA’s
testimony, the defense failed to make a timely objection to the presentation of such testimonial What part of your body did he touch? You stand and point.
evidence. Accused-appellant in fact proceeded with the trial of the case and, as the CA noted, "even
ATTY GARCIA
subjected the witness to a rigorous cross-examination." 19 The unyielding rule is that evidence not
You just point. May I request, Your Honor that the witness be made to draw in her
objected to may be deemed admitted and be validly considered by the court in arriving at its
own capacity to identify this. You draw a female. Draw a woman.
judgment.20 In point is People v. Sanchez,21 in which the prosecution called several persons to testify.
No formal offer of testimonial evidence was made prior to or after their testimonies. The trial court, COURT
nonetheless, considered the testimonies owing to the adverse party’s failure to object to the We are going to put that on record. The part of the body that she pointed.
presentation of such testimonial evidence. The Court sustained the trial court, reproducing what it
earlier said in People v. Java: ATTY. GARCIA
Q     Where did Roger touch you? Which part is this? Is this your belly or is this your
x x x Section 36 [of Rule 132 of the Rules of Court 22] requires that an objection in the course
stomach or is this your vagina?
of the oral examination of a witness should be made as soon as the grounds [therefor] shall
become reasonably apparent. Since no objection to the admissibility of evidence was made in COURT
the court below, an objection raised for the first time on appeal shall not be considered.23 Where did she [point] to?
Accused-appellant’s belated invocation of the strict application of the rules on evidence to suit his ATTY. GARCIA
purpose is quite misplaced, for evidence not objected to, AAA’s testimony in this case, becomes the
property of the case, and all the parties to the case are considered amenable to any favorable or The vagina.

unfavorable effects resulting from the evidence.24 Q     That is put in between your legs, the Judge is asking?

The Prosecution Presented Sufficient Proof of Accused-Appellant’s Guilt A     Yes, Ma’am.

In a bid to escape liability owing to insufficiency of evidence, accused-appellant avers, in context, that Q     Aside from touching your private part, that part between your legs. Where else did
the medical findings presented in court do not support the conclusion made by the trial court that Roger touch you?
accused-appellant inserted his fingers into AAA’s sexual organ, causing it to hurt. He likewise insists
A     No more.
that the testimonies of AAA’s parents were hearsay.25
Q     And aside from touching you, what else did he do?
The direct examination of AAA yields the following:
COURT:
Q     And where did he touch you after he pulled down your shorts and panties?
No answer?
A     Here.
ATTY. GARCIA:
Q     What do you call that here?
 There was an answer, Your Honor. Q     Where did he put his fingers, [AAA?] You said he used his fingers. Where did he use
his fingers, [AAA?] Please answer and when you said he touched you on your private part,
A     He was over the window. He was telling me that we were friends. I did not listen to him
[AAA] did he?
and he already went out of our house. He was already out.
COURT
Q     Let’s go back to touching first, [AAA]. So after he touched you, what else did he do to
you? Did he kiss you [AAA]? After he touched you[,] you said he went out of your room. When did he [put]
your dry panty [back on,] after he [touched] you[?] You said he went out of the
A     Yes, Ma’am.
room. How about your dry panty?
Q     Where did he kiss you?
A     After he touched me.
A     On the cheek.
COURT
Q     Which part of your cheek if you recall?
He removed your wet panties and then he put on the dry one. When did that
A     Left. happen[?] After he touched you or before? Because you said he went out.

Q     Did he kiss your private part, [AAA]? ATTY. GARCIA

(No answer) The answer was before, Your Honor.

COURT COURT

Aside from your cheek, did he kiss also your neck, your ears, breast, the private part You said that he pulled down your shirt. Then he pulled down your wet panties
in between your legs? and then you said that he touched your part in between your legs and then he put
on your dry panties. Was it before he touched your private part or after you were
A     No, Your Honor.
touched?
COURT
A     Before.
How about your breast, did he kiss your breast? Did he touch your breast, [AAA]?
COURT
Do you remember[?] You do not have to be ashamed, we are all women.
So you mean when he touched you in between the legs you already [had] the dry
A     I don’t remember.
panties or no panties yet?
ATTY. GARCIA
A     No panties yet.26
I would like to manifest at this point, Your Honor please, to reiterate what I mean is
really shaking, Your Honor. I just got the right word now. The Court need not belabor the issue of whether or not accused-appellant is guilty of rape which in
turn resolves itself into the question of whether or not he inserted his fingers into AAA’s sexual
COURT organ. The issue has been peremptorily answered in the negative by the CA, basing its resolution
You mean he did not kiss your breast? What about the portion of your body in on the relevant finding of the examining doctor and on the testimony of AAA, who, at best, was
between your legs. Did he also kiss it? tentative in her response when queried about the finger-insertion aspect of the incident. Also, the
People does not challenge the determination. And precisely because of the fact of non-insertion
A     No, Ma’am. that the appellate court was impelled, and rightly so, to downgrade the criminal act to acts of
lasciviousness. The records appear to support the appellate court’s modificatory action. Consider
the following answer given by AAA to the prosecution’s question: "Where did Roger touch you?"
AAA pointed to the vagina of a female figure she had drawn.27
The following exchanges subsequently between the trial court and AAA, however, while proving in a
convincing way malicious touching, provoke doubts whether indeed accused-appellant inserted his
finger into the child’s vagina.
Q     [AAA], when you said he [touched] the things between your legs[,] did he use his
fingers?
COURT
Did he use anything in touching you that he used other than his hands. Did he use
anything in touching you? Did he use his fingers, his hands?
A     Yes, Your Honor, fingers.
Q     Did he insert it inside your private part the thing between your legs, [AAA]?
A     No.28
We, thus, sustain the finding of the CA, viz:
Absent any showing of the actual insertion of the finger in the private part of the child, there
can be no consummated rape. Thus, the failure of the prosecution to establish accused-
appellant’s guilt for rape notwithstanding, this Court finds him liable for the lesser crime of
acts of lasciviousness. This latter crime is considered an offense included or subsumed in the
rape charge. Thus in Dulla v. Court of Appeals and People v. Bon, the Supreme Court
convicted the accused with the crime of acts of lasciviousness even though the information
charged the crime of rape.29 (Citations omitted.)
The touching of a female’s sexual organ, standing alone, is not equivalent to rape, not even an
attempted one. With regard to penile rape, People v. Campuhan explains:
x x x Thus, touching when applied to rape cases does not simply mean mere epidermal
contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external
layer of the victim’s vagina, or the mons pubis, as in this case. There must be sufficient and
convincing proof that the penis indeed touched the labias or slid into the female organ, and
not merely stroked the external surface thereof, for an accused to be convicted of
consummated rape. x x x
x x x Jurisprudence dictates that the labia majora must be entered for rape to be
consummated, and not merely for the penis to stroke the surface of the female organ. Thus, a
grazing of the surface of the female organ or touching the mons pubis of the pudendum is not
sufficient to constitute consummated rape. Absent any showing of the slightest penetration
of the female organ, i.e., touching of either labia of the pudendum by the penis, there can
be no consummated rape; at most, it can only be attempted rape, if not acts of
lasciviousness.30 (Citations omitted.)
By analogy, we hold that for a charge for rape by sexual assault (with the use of one’s fingers as
the assaulting object, as here) to prosper, there should be evidence of at least the slightest
penetration of the sexual organ and not merely a brush or graze of its surface. This is in
consonance with Article 266-A, paragraph 2 of the Revised Penal Code, as amended by Republic
Act No. 8353, which provides:
Art. 266-A. Rape; when and how committed.–Rape is committed–
1) By a man who shall have carnal knowledge of a woman under any of the following
circumstances:
a) Through force, threat or intimidation;
b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of age or is demented, even
though none of the circumstances mentioned above be present.
2) By any person who, under any of the circumstances mentioned in paragraph 1
hereof, shall commit an act of sexual assault by inserting his penis into another
person’s mouth or anal orifice, or any instrument or object, into the genital or anal
orifice of another person.
(Emphasis supplied.)
Rape through sexual assault, thus, requires that the assault be specifically done through "insertion"
into the genital or anal orifices of the victim, a circumstance absent in this case, or at least not
established by the required quantum of evidence.
Accused-appellant’s virtual contention that his guilt for acts of lasciviousness has not been proved
by proof beyond reasonable doubt deserves scant consideration. While the RTC and the CA had
disagreed as to what crime was committed, the disagreement stemming from their differing
findings on whether or not accused-appellant inserted his fingers into AAA’s vagina, both the
courts were one in saying that accused-appellant indeed kissed AAA on the face and fondled her
most private part, or, in fine, that he committed lascivious acts on a six-year girl. 31 The Court
loathes to disturb the ensuing findings of the CA, confirmatory of that of the RTC:
 The prosecution’s evidence introduced during the entire trial established the presence of all
the elements of the crime of acts of lasciviousness. The testimony of the victim shows that
accused-appellant committed lewd acts against her when he pulled down her panties, kissed
her on her left cheek, touched her private part and then squeezing her arm causing her
extreme pain.32 x x x
As the CA observed, AAA’s telling testimony deserves full faith and credit, given as it were in a
categorical manner by a young and an immature girl who had no motive–and none was ascribed by the
defense–to falsely impute the commission of a serious crime against the accused. 33 And if we may
add, in cases of acts of lasciviousness, the lone testimony of the offended party, if credible, is
sufficient to establish the guilt of the accused. 34 The Court, thus, need not dwell into the probative
value of the corroborative testimony on the molestation incident of AAA’s parents which accused-
appellant assails as hearsay.
Finally, we also sustain the award of moral damages in the amount of PhP 30,000 in accordance with
prevailing jurisprudence.35
WHEREFORE, the appeal is DENIED. The CA Decision dated June 29, 2007 in CA-G.R. CR-H.C.
No. 00651 finding accused-appellant Roger Mendoza y Dela Cruz guilty of acts of lasciviousness and
imposing upon him the penalty defined therein is AFFIRMED.
No costs.
SO ORDERED.
G.R. No. 107383             February 20, 1996
CECILIA ZULUETA, petitioner,
vs.
COURT OF APPEALS and ALFREDO MARTIN, respondents.
DECISION
MENDOZA, J.:
This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional
Trial Court of Manila (Branch X) which ordered petitioner to return documents and papers taken by
her from private respondent's clinic without the latter's knowledge and consent.
The facts are as follows:
Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982,
petitioner entered the clinic of her husband, a doctor of medicine, and in the presence of her mother, a
driver and private respondent's secretary, forcibly opened the drawers and cabinet in her husband's
clinic and took 157 documents consisting of private correspondence between Dr. Martin and his
alleged paramours, greetings cards, cancelled checks, diaries, Dr. Martin's passport, and
photographs. The documents and papers were seized for use in evidence in a case for legal
separation and for disqualification from the practice of medicine which petitioner had filed against
her husband.
Dr. Martin brought this action below for recovery of the documents and papers and for damages
against petitioner. The case was filed with the Regional Trial Court of Manila, Branch X, which,
after trial, rendered judgment for private respondent, Dr. Alfredo Martin, declaring him "the
capital/exclusive owner of the properties described in paragraph 3 of plaintiff's Complaint or those
further described in the Motion to Return and Suppress" and ordering Cecilia Zulueta and any
person acting in her behalf to a immediately return the properties to Dr. Martin and to pay him
P5,000.00, as nominal damages; P5,000.00, as moral damages and attorney's fees; and to pay the
costs of the suit. The writ of preliminary injunction earlier issued was made final and petitioner
Cecilia Zulueta and her attorneys and representatives were enjoined from "using or
submitting/admitting as evidence" the documents and papers in question. On appeal, the Court of
Appeals affirmed the decision of the Regional Trial Court. Hence this petition.
There is no question that the documents and papers in question belong to private respondent, Dr.
Alfredo Martin, and that they were taken by his wife, the herein petitioner, without his knowledge
and consent. For that reason, the trial court declared the documents and papers to be properties of
private respondent, ordered petitioner to return them to private respondent and enjoined her from
using them in evidence. In appealing from the decision of the Court of Appeals affirming the trial
court's decision, petitioner's only ground is that in Alfredo Martin v. Alfonso Felix, Jr.,1 this Court
ruled that the documents and papers (marked as Annexes A-1 to J-7 of respondent's comment in
that case) were admissible in evidence and, therefore, their use by petitioner's attorney, Alfonso
Felix did not constitute malpractice or gross misconduct, For this reason it is contended that the
Court of Appeals erred in affirming the decision of the trial court instead of dismissing private
respondent's complaint.
Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among
other things, private respondent, Dr. Alfredo Martin, as complainant in that case, charged that in
using the documents in evidence, Atty. Felix, Jr. committed malpractice or gross misconduct
because of the injunctive order of the trial court. In dismissing the complaint against Atty. Felix,
Jr., this Court took note of the following defense of Atty. Felix; Jr. which it found to be "impressed
with merit:"2
On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he
maintains that:
 ....
4. When respondent refiled Cecilia's case for legal separation before the Pasig Regional Trial
Court, there was admittedly an order of the Manila Regional Trial Court prohibiting Cecilia
from using the documents Annex "A-1 to J-7." On September 6, 1983, however having
appealed the said order to this Court on a petition for certiorari, this Court issued a restraining
order on aforesaid date which order temporarily set aside the order of the trial court. Hence,
during the enforceability of this Court's order, respondent's request for petitioner to admit the
genuineness and authenticity of the subject annexes cannot be looked upon as malpractice.
Notably, petitioner Dr. Martin finally admitted the truth and authenticity of the questioned
annexes, At that point in time, would it have been malpractice for respondent to use
petitioner's admission as evidence against him in the legal separation case pending in the
Regional Trial Court of Makati? Respondent submits it is not malpractice.
Significantly, petitioner's admission was done not thru his counsel but by Dr. Martin himself
under oath, Such verified admission constitutes an affidavit, and, therefore, receivable in
evidence against him. Petitioner became bound by his admission. For Cecilia to avail herself
of her husband's admission and use the same in her action for legal separation cannot be
treated as malpractice.
Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a declaration
that his use of the documents and papers for the purpose of securing Dr. Martin's admission as to their
genuiness and authenticity did not constitute a violation of the injunctive order of the trial court. By no
means does the decision in that case establish the admissibility of the documents and papers in
question.
It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of
preliminary injunction issued by the trial court, it was only because, at the time he used the documents
and papers, enforcement of the order of the trial court was temporarily restrained by this Court. The
TRO issued by this Court was eventually lifted as the petition for certiorari filed by petitioner against
the trial court's order was dismissed and, therefore, the prohibition against the further use of the
documents and papers became effective again.
Indeed the documents and papers in question are inadmissible in evidence. The constitutional
injunction declaring "the privacy of communication and correspondence [to be] inviolable" 3 is no less
applicable simply because it is the wife (who thinks herself aggrieved by her husband's infidelity) who
is the party against whom the constitutional provision is to be enforced. The only exception to the
prohibition in the Constitution is if there is a "lawful order [from a] court or when public safety or
order requires otherwise, as prescribed by law."4 Any violation of this provision renders the evidence
obtained inadmissible "for any purpose in any proceeding." 5
The intimacies between husband and wife do not justify any one of them in breaking the drawers
and cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A
person, by contracting marriage, does not shed his/her integrity or his right to privacy as an
individual and the constitutional protection is ever available to him or to her.
The law insures absolute freedom of communication between the spouses by making it privileged.
Neither husband nor wife may testify for or against the other without the consent of the affected
spouse while the marriage subsists.6 Neither may be examined without the consent of the other as
to any communication received in confidence by one from the other during the marriage, save for
specified exceptions.7 But one thing is freedom of communication; quite another is a compulsion
for each one to share what one knows with the other. And this has nothing to do with the duty of
fidelity that each owes to the other.
WHEREFORE, the petition for review is DENIED for lack of merit.
SO ORDERED.
G.R. No. 150224             May 19, 2004
PEOPLE OF THE PHILIPPINES, appellee,
vs.
JOEL YATAR alias "KAWIT", appellant.
DECISION
PER CURIAM:
On automatic review is a Decision of the Regional Trial Court of Bulanao, Tabuk, Kalinga, Branch
25, sentencing appellant Joel Yatar alias "Kawit" to Death for the special complex crime of Rape
with Homicide, and ordering him to pay the heirs of the victim, Kathylyn D. Uba, civil indemnity
in the amount of P75,000.00, moral damages in the amount of P200,000.00, exemplary damages in
the amount of P50,000.00, actual damages in the amount of P186,410.00, or total damages
amounting to P511,410.00, and costs of litigation.1
Appellant was charged with Rape with Homicide under the following Information:
That on or about the afternoon of June 30, 1998 at Liwan West, Rizal, Kalinga, and within
the jurisdiction of this Honorable Court, the accused, in order to have carnal knowledge of
a certain KATHYLYN D. UBA, did then and there wilfully, unlawfully, and feloniously,
 and with use of a bladed weapon stab the latter inflicting upon her fatal injuries resulting in
the death of the victim, and on the occasion or by reason thereof, accused, wilfully,
unlawfully and feloniously, and by means of force and violence had carnal knowledge of said
Kathlyn D. Uba against her will.
CONTRARY TO LAW.2
The facts are:
On June 30, 1998, at 8:30 a.m., Judilyn Pas-a and her first cousin, seventeen year old
Kathylyn Uba, were on the ground floor of the house of their grandmother, Isabel Dawang, in
Liwan West, Rizal, Kalinga. They were talking about the letter sent by their aunt, Luz Yatar,
to her husband, appellant Joel Yatar, through Kathylyn’s friend, Cecil Casingan. Kathylyn
handed the letter to appellant earlier that morning.3
At 9:00 a.m. of the same day, Judilyn and her husband, together with Isabel Dawang, left for their
farm in Nagbitayan some two kilometers away. Before Judilyn and her husband departed, Kathylyn
told Judilyn that she intended to go to Tuguegarao, but in the event she would not be able to leave, she
would just stay home and wash her clothes or go to the house of their aunt, Anita Wania. Kathylyn was
left alone in the house.4
Later, at 10:00 a.m., Anita Wania and fifteen year old Beverly Deneng stopped by the house of Isabel.
They saw appellant at the back of the house. They went inside the house through the back door of the
kitchen to have a drink of water. Anita asked appellant what he was doing there, and he replied that he
was getting lumber to bring to the house of his mother.5
At 12:30 p.m., while Judilyn was on her way home from Nagbitayan, she saw appellant descend the
ladder from the second floor of the house of Isabel Dawang and run towards the back of the house. 6
She later noticed appellant, who was wearing a white shirt with collar and black pants, pacing back
and forth at the back of the house. She did not find this unusual as appellant and his wife used to live
in the house of Isabel Dawang.7
At 1:30 p.m., Judilyn again saw appellant when he called her near her house. This time, he was
wearing a black shirt without collar and blue pants. Appellant told her that he would not be getting the
lumber he had stacked, and that Isabel could use it. She noticed that appellant’s eyes were "reddish
and sharp." Appellant asked her where her husband was as he had something important to tell him.
Judilyn’s husband then arrived and appellant immediately left and went towards the back of the house
of Isabel.8
In the evening of the same day, Isabel Dawang arrived home and found that the lights in her house
were off. She called out for her granddaughter, Kathylyn Uba. The door to the ground floor was
open. She noticed that the water container she asked Kathylyn to fill up earlier that day was still
empty. She went up the ladder to the second floor of the house to see if Kathylyn was upstairs. She
found that the door was tied with a rope, so she went down to get a knife. While she groped in the
dark, she felt a lifeless body that was cold and rigid.9
Isabel moved her hand throughout the entire body. She found out that it was the naked body of her
granddaughter, Kathylyn. She called for help. Judilyn and her husband arrived. Isabel was given a
flashlight by Judilyn. She focused the beam and saw Kathylyn sprawled on the floor naked, with
her intestines protruding out of her stomach. Meanwhile, neighbors had arrived to offer assistance.
A daughter of Isabel, Cion, called the police.10
At 9:00 that evening, SP04 Melchor Faniswa received a report that a dead woman was found in
Isabel Dawang’s house. Together with fellow police officers, Faniswa went to the house and found
the naked body of Kathylyn Uba with multiple stab wounds.
The people in the vicinity informed the police officers that appellant was seen going down the
ladder of the house of Isabel Dawang at approximately 12:30 p.m.
The police discovered the victim’s panties, brassiere, denim pants, bag and sandals beside her
naked cadaver at the scene of the crime, and they found a dirty white shirt splattered with blood
within 50 meters from the house of Isabel.
When questioned by the police authorities, appellant denied any knowledge of Kathylyns’s
death,11 however, he was placed under police custody.
On July 3, 1998, appellant asked the police officers if he could relieve himself. Police Officer
Cesar Abagan accompanied him to the toilet around seven to ten meters away from the police
station. They suddenly heard someone shout in the Ilocano dialect, "Nagtaray!" (He’s running
away!). Police Officer Orlando Manuel exited through the gate of the Police Station and saw
appellant running away. Appellant was approximately 70 meters away from the station when
Police Officer Abagan recaptured him. 12 He was charged with Rape with Homicide. When he was
arraigned on July 21, 1998, appellant pleaded "not guilty."
After trial, appellant was convicted of the crime of Rape with Homicide, defined and penalized
under Article 266-A of the Revised Penal Code, as amended by R.A. 8353, otherwise known as the
Anti-Rape Law of 1997, and was accordingly, sentenced to Death.
Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as amended. In his
Brief, appellant assigns the following errors:
 I It should also be noted that, although the Postmortem Report by the attending physician, Dr. Pej
THE TRIAL COURT GRAVELY ERRED IN GIVING MUCH WEIGHT TO THE
EVIDENCE PRESENTED BY THE PROSECUTION NOTWITHSTANDING THEIR
DOUBTFULNESS.
II
THE TRIAL COURT SERIOUSLY ERRED IN NOT ACQUITTING THE ACCUSED-
APPELLANT OF THE SERIOUS CRIME CHARGED DUE TO REASONABLE DOUBT.
Appellant’s contentions are unmeritorious.
The issue regarding the credibility of the prosecution witnesses should be resolved against appellant.
This Court will not interfere with the judgment of the trial court in determining the credibility of
witnesses unless there appears in the record some fact or circumstance of weight and influence which
has been overlooked or the significance of which has been misinterpreted. 13 Well-entrenched is the
rule that the findings of the trial court on credibility of witnesses are entitled to great weight on appeal
unless cogent reasons are presented necessitating a reexamination if not the disturbance of the same;
the reason being that the former is in a better and unique position of hearing first hand the witnesses
and observing their deportment, conduct and attitude.14 Absent any showing that the trial judge
overlooked, misunderstood, or misapplied some facts or circumstances of weight which would affect
the result of the case, the trial judge’s assessment of credibility deserves the appellate court’s highest
respect.15 Where there is nothing to show that the witnesses for the prosecution were actuated by
improper motive, their testimonies are entitled to full faith and credit. 16
The weight of the prosecution’s evidence must be appreciated in light of the well-settled rule which
provides that an accused can be convicted even if no eyewitness is available, as long as sufficient
circumstantial evidence is presented by the prosecution to prove beyond doubt that the accused
committed the crime.17
Reference to the records will show that a total of eleven (11) wounds, six (6) stab and five (5) incised,
were found on the victim’s abdomen and back, causing a portion of her small intestines to spill out of
her body.18 Rigor mortis of the vicitm’s body was complete when Dr. Bartolo examined the victim at
9:00 a.m. on July 1, 1998. According to him, the time of death may be approximated from between
nine (9) to twelve (12) hours prior to the completion of rigor mortis.19 In other words, the estimated
time of death was sometime between 9:00 a.m. to 12:00 p.m. on June 30, 1998. This was within the
timeframe within which the lone presence of appellant lurking in the house of Isabel Dawang was
testified to by witnesses.
Evan C. Bartolo, indicates that no hymenal lacerations, contusions or hematoma were noted on the
victim,20 Dr. Bartolo discovered the presence of semen in the vaginal canal of the victim. During
his testimony, Dr. Bartolo stated that the introduction of semen into the vaginal canal could only be
done through sexual intercourse with the victim. 21 In addition, it is apparent from the pictures
submitted by the prosecution that the sexual violation of the victim was manifested by a bruise and
some swelling in her right forearm indicating resistance to the appellant’s assault on her virtue. 22
Significantly, subsequent testing showed that the Deoxyribonucleic acid (DNA) of the sperm
specimen from the vagina of the victim was identical the semen to be that of appellant’s gene type.
DNA is a molecule that encodes the genetic information in all living organisms. 23 A person’s DNA
is the same in each cell and it does not change throughout a person’s lifetime; the DNA in a
person’s blood is the same as the DNA found in his saliva, sweat, bone, the root and shaft of hair,
earwax, mucus, urine, skin tissue, and vaginal and rectal cells. 24 Most importantly, because of
polymorphisms in human genetic structure, no two individuals have the same DNA, with the
notable exception of identical twins.25
DNA print or identification technology has been advanced as a uniquely effective means to link a
suspect to a crime, or to exonerate a wrongly accused suspect, where biological evidence has been
left. For purposes of criminal investigation, DNA identification is a fertile source of both
inculpatory and exculpatory evidence. It can assist immensely in effecting a more accurate account
of the crime committed, efficiently facilitating the conviction of the guilty, securing the acquittal of
the innocent, and ensuring the proper administration of justice in every case.
DNA evidence collected from a crime scene can link a suspect to a crime or eliminate one from
suspicion in the same principle as fingerprints are used. 26 Incidents involving sexual assault would
leave biological evidence such as hair, skin tissue, semen, blood, or saliva which can be left on the
victim’s body or at the crime scene. Hair and fiber from clothing, carpets, bedding, or furniture
could also be transferred to the victim’s body during the assault. 27 Forensic DNA evidence is
helpful in proving that there was physical contact between an assailant and a victim. If properly
collected from the victim, crime scene or assailant, DNA can be compared with known samples to
place the suspect at the scene of the crime.28
The U.P. National Science Research Institute (NSRI), which conducted the DNA tests in this case,
used the Polymerase chain reaction (PCR) amplification method by Short Tandem Repeat (STR)
analysis. With PCR testing, tiny amounts of a specific DNA sequence can be copied exponentially
within hours. Thus, getting sufficient DNA for analysis has become much easier since it became
possible to reliably amplify small samples using the PCR method.
In assessing the probative value of DNA evidence, courts should consider, inter alia, the following
factors: how the samples were collected, how they were handled, the possibility of contamination of
the samples, the procedure followed in analyzing the samples, whether the proper standards and
procedures were followed in conducting the tests, and the qualification of the analyst who conducted
the tests.29
In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the prosecution as an
expert witness on DNA print or identification techniques. 30 Based on Dr. de Ungria’s testimony, it
was determined that the gene type and DNA profile of appellant are identical to that of the extracts
subject of examination.31 The blood sample taken from the appellant showed that he was of the
following gene types: vWA 15/19, TH01 7/8, DHFRP2 9/10 and CSF1PO 10/11, which are identical
with semen taken from the victim’s vaginal canal.32 Verily, a DNA match exists between the semen
found in the victim and the blood sample given by the appellant in open court during the course of the
trial.
Admittedly, we are just beginning to integrate these advances in science and technology in the
Philippine criminal justice system, so we must be cautious as we traverse these relatively uncharted
waters. Fortunately, we can benefit from the wealth of persuasive jurisprudence that has developed in
other jurisdictions. Specifically, the prevailing doctrine in the U.S. has proven instructive.
In Daubert v. Merrell Dow,33 it was ruled that pertinent evidence based on scientifically valid
principles could be used as long as it was relevant and reliable. Judges, under Daubert, were allowed
greater discretion over which testimony they would allow at trial, including the introduction of new
kinds of scientific techniques. DNA typing is one such novel procedure.
Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce belief
in its existence or non-existence. 34 Applying the Daubert test to the case at bar, the DNA evidence
obtained through PCR testing and utilizing STR analysis, and which was appreciated by the court a
quo is relevant and reliable since it is reasonably based on scientifically valid principles of human
genetics and molecular biology.
Independently of the physical evidence of appellant’s semen found in the victim’s vaginal canal, the
trial court appreciated the following circumstantial evidence as being sufficient to sustain a conviction
beyond reasonable doubt: (1) Appellant and his wife were living in the house of Isabel Dawang
together with the victim, Kathylyn Uba; (2) In June 1998, appellant’s wife left the house because of
their frequent quarrels; (3) Appellant received from the victim, Kathylyn Uba, a letter from his
estranged wife in the early morning on June 30, 1998; (4) Appellant was seen by Apolonia Wania and
Beverly Denneng at 1:00 p.m. of June 30, 1998 near the kitchen of the house of Isabel Dawang,
acting strangely and wearing a dirty white shirt with collar; (5) Judilyn Pas-a saw appellant going
down the ladder of the house of Isabel at 12:30 p.m., wearing a dirty white shirt, and again at 1:30
p.m., this time wearing a black shirt; (6) Appellant hurriedly left when the husband of Judilyn Pas-
a was approaching; (7) Salmalina Tandagan saw appellant in a dirty white shirt coming down the
ladder of the house of Isabel on the day Kathylyn Uba was found dead; (8) The door leading to the
second floor of the house of Isabel Dawang was tied by a rope; (9) The victim, Kathylyn Uba, lay
naked in a pool of blood with her intestines protruding from her body on the second floor of the
house of Isabel Dawang, with her stained pants, bra, underwear and shoes scattered along the
periphery; (10) Laboratory examination revealed sperm in the victim’s vagina (Exhibit "H" and
"J"); (11) The stained or dirty white shirt found in the crime scene was found to be positive with
blood; (12) DNA of slide, Exhibit "J" and "H", compared with the DNA profile of the appellant are
identical; and (13) Appellant escaped two days after he was detained but was subsequently
apprehended, such flight being indicative of guilt.35
Circumstantial evidence, to be sufficient to warrant a conviction, must form an unbroken chain
which leads to a fair and reasonable conclusion that the accused, to the exclusion of others, is the
perpetrator of the crime. To determine whether there is sufficient circumstantial evidence, three
requisites must concur: (1) there is more than one circumstance; (2) facts on 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.36
In an attempt to exclude the DNA evidence, the appellant contends that the blood sample taken
from him as well as the DNA tests were conducted in violation of his right to remain silent as well
as his right against self-incrimination under Secs. 12 and 17 of Art. III of the Constitution.
This contention is untenable. The kernel of the right is not against all compulsion, but against
testimonial compulsion.37 The right against self- incrimination is simply against the legal process
of extracting from the lips of the accused an admission of guilt. It does not apply where the
evidence sought to be excluded is not an incrimination but as part of object evidence.
We ruled in People v. Rondero38 that although accused-appellant insisted that hair samples were
forcibly taken from him and submitted to the National Bureau of Investigation for forensic
examination, the hair samples may be admitted in evidence against him, for what is proscribed is
the use of testimonial compulsion or any evidence communicative in nature acquired from the
accused under duress.
Hence, a person may be compelled to submit to fingerprinting, photographing, paraffin, blood and
DNA, as there is no testimonial compulsion involved. Under People v. Gallarde,39 where
immediately after the incident, the police authorities took pictures of the accused without the presence
of counsel, we ruled that there was no violation of the right against self-incrimination. The accused
may be compelled to submit to a physical examination to determine his involvement in an offense of
which he is accused.
It must also be noted that appellant in this case submitted himself for blood sampling which was
conducted in open court on March 30, 2000, in the presence of counsel.
Appellant further argues that the DNA tests conducted by the prosecution against him are
unconstitutional on the ground that resort thereto is tantamount to the application of an ex-post facto
law.
This argument is specious. No ex-post facto law is involved in the case at bar. The science of DNA
typing involves the admissibility, relevance and reliability of the evidence obtained under the Rules of
Court. Whereas an ex-post facto law refers primarily to a question of law, DNA profiling requires a
factual determination of the probative weight of the evidence presented.
Appellant’s twin defense of denial and alibi cannot be sustained. The forensic DNA evidence and
bloodied shirt, notwithstanding the eyewitness accounts of his presence at Isabel Dawang’s house
during the time when the crime was committed, undeniably link him to the June 30, 1998 incident.
Appellant did not demonstrate with clear and convincing evidence an impossibility to be in two places
at the same time, especially in this case where the two places are located in the same barangay. 40 He
lives within a one hundred (100) meter radius from the scene of the crime, and requires a mere five
minute walk to reach one house from the other. This fact severely weakens his alibi.
As to the second assignment of error, appellant asserts that the court a quo committed reversible error
in convicting him of the crime charged. He alleges that he should be acquitted on reasonable doubt.
Appellant’s assertion cannot be sustained.
Generally, courts should only consider and rely upon duly established evidence and never on mere
conjectures or suppositions. The legal relevancy of evidence denotes "something more than a
minimum of probative value," suggesting that such evidentiary relevance must contain a "plus
value."41 This may be necessary to preclude the trial court from being satisfied by matters of slight
value, capable of being exaggerated by prejudice and hasty conclusions. Evidence without "plus
value" may be logically relevant but not legally sufficient to convict. It is incumbent upon the trial
court to balance the probative value of such evidence against the likely harm that would result from its
admission.
The judgment in a criminal case can be upheld only when there is relevant evidence from which the
court can properly find or infer that the accused is guilty beyond reasonable doubt. Proof beyond
reasonable doubt requires moral certainty of guilt in order to sustain a conviction. Moral certainty is
that degree of certainty that convinces and directs the understanding and satisfies the reason and
judgment of those who are bound to act conscientiously upon it. It is certainty beyond reasonable
doubt.42 This requires that the circumstances, taken together, should be of a conclusive nature and
tendency; leading, on the whole, to a satisfactory conclusion that the accused, and no one else,
committed the offense charged.43 In view of the totality of evidence appreciated thus far, we rule
that the present case passes the test of moral certainty.
However, as a matter of procedure, and for the purpose of meeting the requirement of proof
beyond reasonable doubt, motive is essential for conviction when there is doubt as to the identity
of the culprit.44
Pertinently, it must be noted that Judilyn Pas-a, first cousin of the victim, testified that she last saw
the victim alive in the morning of June 30, 1998 at the house of Isabel Dawang. 45 She witnessed
the appellant running down the stairs of Isabel’s house and proceeding to the back of the same
house.46 She also testified that a few days before the victim was raped and killed, the latter
revealed to her that "Joel Yatar attempted to rape her after she came from the school." 47 The
victim told Judilyn about the incident or attempt of the appellant to rape her five days before her
naked and violated body was found dead in her grandmother’s house on June 25, 1998. 48 In
addition, Judilyn also testified that when her auntie Luz Dawang Yatar, wife of appellant, separated
from her husband, "this Joel Yatar threatened to kill our family." 49 According to Judilyn, who was
personally present during an argument between her aunt and the appellant, the exact words uttered
by appellant to his wife in the Ilocano dialect was, "If you leave me, I will kill all your family and
your relatives x x x."50 These statements were not contradicted by appellant.
Thus, appellant’s motive to sexually assault and kill the victim was evident in the instant case. It is
a rule in criminal law that motive, being a state of mind, is established by the testimony of
witnesses on the acts or statements of the accused before or immediately after the commission of
the offense, deeds or words that may express it or from which his motive or reason for committing
it may be inferred.51
Accordingly, we are convinced that the appellant is guilty beyond reasonable doubt of the special
complex crime of rape with homicide. Appellant sexually assaulted Kathylyn Uba, and by reason
or on the occasion thereof, in order to conceal his lustful deed, permanently sealed the victim’s lips
by stabbing her repeatedly, thereby causing her untimely demise.
The following are the elements constitutive of rape with homicide: (1) the appellant had carnal
knowledge of a woman; (2) carnal knowledge of a woman was achieved by means of force, threat
or intimidation; and (3) by reason or on the occasion of such carnal knowledge by means of force,
threat or intimidation, appellant killed the woman. 52 However, in rape committed by close kin, such
as the victim’s father, step-father, uncle, or the common-law spouse of her mother, it is not necessary
that actual force or intimidation be employed. 53 Moral influence or ascendancy takes the place of
violence and intimidation.54 The fact that the victim’s hymen is intact does not negate a finding that
rape was committed as mere entry by the penis into the lips of the female genital organ, even without
rupture or laceration of the hymen, suffices for conviction of rape. 55 The strength and dilatability of
the hymen are invariable; it may be so elastic as to stretch without laceration during intercourse.
Absence of hymenal lacerations does not disprove sexual abuse especially when the victim is of tender
age.56
In the case at bar, appellant is the husband of the victim’s aunt. He is seven years older than the victim
Kathylyn Uba. Before he and his wife separated, appellant lived in the house of his mother-in-law,
together with the victim and his wife. After the separation, appellant moved to the house of his
parents, approximately one hundred (100) meters from his mother-in-law’s house. Being a relative by
affinity within the third civil degree, he is deemed in legal contemplation to have moral ascendancy
over the victim.
Under Article 266-B of the Revised Penal Code, the penalty of death is imposed when by reason or on
the occasion of the rape, homicide is committed. Although three (3) Justices of this Court maintain
their position that R.A. 7659 is unconstitutional insofar as it prescribes the death penalty, they
nevertheless submit to the ruling of the majority that the law is not unconstitutional, and that the death
penalty can be lawfully imposed in the case at bar.
As to damages, civil indemnity ex delicto of P100,000.00, 57 actual damages incurred by the family of
the victim that have been proved at the trial amounting to P93,190.00, 58 and moral damages of
P75,000.0059 should be awarded in the light of prevailing law and jurisprudence. Exemplary damages
cannot be awarded as part of the civil liability since the crime was not committed with one or more
aggravating circumstances.60
WHEREFORE, in view of the foregoing, the Decision of the RTC of Bulanao, Tabuk, Kalinga,
Branch 25 in Criminal Case No. 35-98, sentencing appellant Joel Yatar alias "Kawit" to Death for the
special complex crime of Rape with Homicide is AFFIRMED with the MODIFICATION that he be
ORDERED to pay the family of the victim Kathylyn Uba civil indemnity ex delicto in the amount of
P100,000.00, P93,190.00 in actual damages and P75,000.00 in moral damages. The award of
exemplary damages is DELETED.
Upon the finality of this Decision and in accordance with Art. 83 of the Revised Penal Code, as
amended by Sec. 25 of Rep. Act No. 7659, let the records of this case be forthwith forwarded to the
President of the Philippines for the possible exercise of the pardoning power.
Costs de oficio.
SO ORDERED.
G.R. No. 97525. April 7, 1993.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JOEL SARTAGODA y BOCANEGRA, JIMMY BASCUÑA y LAZARTE, VICENTE STA. ANA
y GUTIERREZ and JOHN DOE, accused-appellants.
The Solicitor General for plaintiff-appellee.
Ernesto M. Maiquez for accused-appellants.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; FINGERPRINTS; ABSENCE THEREOF DOES NOT
ELIMINATE POSSIBILITY THAT ACCUSED COULD HAVE BEEN AT SCENE OF THE
CRIME. — Although We agree with their opinion that a positive finding of matching fingerprints
has great significance, We cannot sustain their theory that from the negative findings in the
fingerprint examination conducted in the course of the investigation in the instant case, it must be
concluded that they could not have been at the scene of the crime. Negative findings do not at all
times lead to a valid conclusion for there may be logical explanations for the absence of
identifiable latent prints other than their not being present at the scene of the crime. Only latent
fingerprints found on smooth surface are useful for purposes of comparison in a crime laboratory
because prints left on rough surfaces result in dotted lines or broken lines instead of complete and
continuous lines. Such kind of specimen cannot be relied upon in a fingerprint examination. The
latent fingerprints are actually oily substance adhering to the surfaces of objects that come in
contact with the fingers. By their very nature, oily substances easily spread such that when the
fingers slide against the surface they touch, no identifiable latent print is left, only smudges
instead. Not all police investigators are aware of the nature of latent fingerprints so as to be guided
accordingly in deciding which objects to submit for fingerprint lifting and examination. Noting the
interplay of many circumstances involved in the successful lifting and identification of proper
latent fingerprints in a particular crime scene, the absence of one does not immediately eliminate the for multiple rape, there having been evidence of conspiracy, the act of one being the act of all, each
possibility that the accused-appellants could have been at the scene of the crime. They may be there must be liable for all the three rapes committed, they must be held solidarily liable for said
yet they had not left any identifiable latent fingerprint. Besides, in the case at bar, only ten latent indemnity which the trial court fixed at P30,000.00 for each offender or a total of P90,000.00.
fingerprints are involved. The findings in this particular fingerprint examination are not sufficient to
6. ID.; ID.; IN MULTIPLE RAPE ACCUSED NOT REQUIRED TO RECOGNIZE OFFSPRING.
case even just a reasonable doubt in their finding of guilt for the crime charged.
— This Court cannot uphold the trial court's ruling ordering each of the accused to "recognize the
2. ID.; ID.; IDENTIFICATION OF THE ACCUSED; POLICE LINE-UP NOT REQUIRED BY LAW offspring if there by any." In multiple rape, not one maybe required to recognized the offspring of
FOR PROPER IDENTIFICATION; FACE AND BODY MOVEMENT OF ASSAILANT CREATE the offended woman. In a case where three persons, one after another, raped a woman, neither of
LASTING IMPRESSION ON VICTIM. — Whether or not there was a previous police line-up, the the accuse was ordered to recognize the offspring simply because it was impossible to determine
fact is that they were positively identified at the trial. There is no law requiring a police line-up as the paternity thereof.
essential to a proper identification. The complainant's recognition of the accused-appellants as her
DECISION
attackers cannot be doubted for she had during the carnal acts ample opportunity to see the faces of
the men who ravaged her. It is the most natural reaction for victims of criminal violence to strive to CAMPOS, JR., J p:
see the looks and faces of their assailants and observe the manner in which the crime was committed.
The Regional Trial Court, Fourth Judicial Region, Branch 36, Calamba, Laguna convicted all three
Most often the face of the assailant and body movement thereof, create a lasting impression which
accused-appellants in its decision ** dated November 7, 1990, the dispositive portion of which
cannot easily be erased from their memory.
reads:
3. ID.; ID.; NON-FLIGHT NOT PROOF OF INNOCENCE; CASE AT BAR. — They claim that the
"WHEREFORE, the court hereby finds the accused Joel Sartagoda y Bocanegra, Jimmy Bascoña
fact that Vicente Sta. Ana and Jimmy Bascuña did not flee, even when they had all the opportunities to
(sic) y Lazarte and Vicente Sta. Ana y Gutierrez all guilty beyond reasonable doubt as co-principals
do so, prove their innocence. When they were allowed to go home after Vilma failed to identify them
of the crime of Robbery With Rape, defined and penalized in Article 294, paragraph 2 of the
during the first confrontation at the police station, they stayed home and did not flee until they were
Revised Penal Code; there being two aggravating circumstances without any mitigating
again required to appear at the police station for the second time. The accused-appellants in effect
circumstance to offset the same, hereby sentences each of the said accused to suffer the penalty of
posit that if flight is an indication of guilt, non-flight or the decision not to flee, having the opportunity
Reclusion Perpetua with the accessories provided for by the law.
to do so, is a sign of innocence. We do not agree. Although it is settled that unexplained flight
indicates guilt, it does not necessarily follow that absence thereof proves innocence, specially so when Each of the three accused is ordered to indemnify the offended party Vilma de Belen the sum of
there is overwhelming evidence to establish their guilt. P30,000.00, and each of them shall recognize the offspring if there be any.
4. ID.; APPEAL; FACTUAL FINDINGS OF TRIAL JUDGE ENTITLED TO HIGHEST RESPECT; The said accused are likewise ordered to return the personal properties stolen or pay its equivalent
EXCEPTION. — this Court finds no reversible error having been committed by the trial court in amount of P17,490.00 to Rogelio de Belen, the lawful owner thereof.
convicting the three accused-appellants for the crime of robbery with multiple rape under Article 294
SO ORDERED." 1
par. 2 of the Revised Penal Code. We affirm its findings of fact which are firmly grounded on the
evidence presented at the trial. We reiterate our ruling thus: "There is need to stress anew that this The facts of the case may be summarized as follows:
Court has long been committed to the principle that the determination by a trial judge who could
It was the evening of July 2, 1988 while Rogelio de Belen, his two daughters and his sister Vilma
weigh and appraise the testimony as to the facts fully proved is entitled to the highest respect, unless it
de Belen were sleeping in their house at Calamba, Laguna, when appellant broke in and woke him
could be shown that he ignored or disregarded circumstances of weight or influence sufficient to call
up, poking a knife at him. They tied up his hands and made him lie flat on his stomach and asked
for a different finding."
for the key to his cabinet. Fearing for his life and that of his companions, he reluctantly told them
5. CRIMINAL LAW; CIVIL LIABILITY OF PERSONS GUILTY OF CRIMES AGAINST where the key was kept.
CHASTITY; INDEMNITY TO VICTIM FOR MULTIPLE RAPE ATTENDED BY CONSPIRACY;
ACCUSED SOLIDARILY LIABLE THEREFOR. — With regard to the indemnity to Vilma de Belen
Just on the other room was Vilma, who heard whispers (kaluskos) but simply played possum. When
the three saw her on the bed, they approached her. One covered her mouth as another poked a knife at
her neck. They threatened to kill her if she should make an outcry.
They raised her blouse and removed her underwear. They tied both her hands so that she could offer
no resistance. She was at such a pitiful state when the accused Jimmy Bascuña went on top of her,
kissing her on different parts of her body, while Vicente Sta. Ana held her legs apart. Jimmy finally
inserted his sex organ inside her and satisfied his bestial desire. After Jimmy was over, Vicente took
his turn and then Joel. After the three of them had successfully deflowered Vilma, they left, carrying
with them the money and other personal belongings of the de Belen family.
After the three men left, Rogelio, with his hands and feet still tied up, tried to get up from the bed and
switched the lights on and called to his neighbors for help. Vilma, meanwhile, had lost consciousness
due to shock.
Meanwhile, Petra Lamire, his sister-in-law who lives right next to his house responded to his cry for
help. She went to their house and untied Rogelio. She saw Vilma with her upper body naked and
sobbing so she covered Vilma with a blanket. Soon after, his other sister-in-law also arrived. They
reported the incident to the Barangay Captain.
They had Vilma examined by Dr. Danilo A. Ramirez at Dr. Jose Rizal Memorial Hospital at about
10:00 that same morning. He conducted external and internal examinations. His external examination
showed no physical injuries except that he noted several abrasions at the genital area. His internal
examination showed fresh lacerations of the hymen at 9:00 and 4:00 positions. The vagina admitted
two fingers with ease.
In the present appeal the lone assigned error is:
THE LOWER COURT ERRED IN NOT DECLARING (THAT) THE EVIDENCE OF THE
PROSECUTION UTTERLY FAILED TO PROVE THE GUILT OF THE ACCUSED BEYOND
REASONABLE DOUBT HENCE, THEIR ACQUITTAL IS INEVITABLE.
This appeal has no merit.
The accused-appellants fault the trial court of ignoring the fingerprint examination report submitted by
the Crime Laboratory of the PC/INP Camp Crame which stated that none of the specimen latent
fingerprints were found to be positive. It is their contention that since their fingerprints were not found
in the objects found in the scene of the crime they cannot be held guilty of the crime charged beyond
reasonable doubt.
Although We agree with their opinion that a positive finding of matching fingerprints has great
significance, We cannot sustain their theory that from the negative findings in the fingerprint
examination conducted in the course of the investigation in the instant case, it must be concluded that
they could not have been at the scene of the crime. Negative findings do not at all times lead to a
valid conclusion for there may be logical explanations for the absence of identifiable latent prints
other than their not being present at the scene of the crime.
Only latent fingerprints found on smooth surface are useful for purposes of comparison in a crime
laboratory because prints left on rough surfaces result in dotted lines or broken lines instead of
complete and continuous lines. Such kind of specimen cannot be relied upon in a fingerprint
examination. The latent fingerprints are actually oily substances adhering to the surfaces of objects
that come in contact with the fingers. By their very nature, oily substances easily spread such that
when the fingers slide against the surface they touch, no identifiable latent print is left, only
smudges instead. Not all police investigators are aware of the nature of latent fingerprints so as to
be guided accordingly in deciding which objects to submit for fingerprint lifting and examination.
Noting the interplay of many circumstances involved in the successful lifting and identification of
proper latent fingerprints in a particular crime scene, the absence of one does not immediately
eliminate the possibility that the accused-appellants could have been at the scene of the crime.
They may be there yet they had not left any identifiable latent fingerprint. Besides, in the case at
bar, only ten latent fingerprints are involved. The findings in this particular fingerprint examination
are not sufficient to cast even just a reasonable doubt in their finding of guilt for the crime charged.
The accused-appellants likewise contend that the police line-up had been irregularly conducted
revealing suggestibility to their prejudice. They accused Pat. Reyes of coaching complainant Vilma
de Belen when she identified her three assailants. They claim that it was Pat. Reyes' fault that "they
were not allowed to select their positions at the line-up; that they were not placed in line under a
numeral against a wall marked to indicate their respective height in feet and inches; that there was
no record made of their descriptions and physical characteristics; that the witness/victim was not
out of view of the three (3) accused lined-up for identification purposes." 2
We find these claims of irregularities of little if not, of no significance at all when considered in the
light of the natural desire in the victim to seek retribution not simply from anybody who may be
put before her but from the very same offenders who actually did violence against her. It would be
most illogical for an outraged victim to direct her anger against anyone other than her three
offenders. We cannot accept the accused-appellants' claim that it was on Pat. Reyes' suggestion that
the victim pointed to the accused-appellants as her assailants. No amount of coaching will be
sufficient to counter the natural outrage of a rape victim against her abuser when said abuser is
presented before her in a police line-up. The outrage displayed by the rape victim was a
spontaneous reaction. She identified her assailants because of no other reason except to let people
know who hurt her.
Whether or not there was a previous police line-up, the fact is that they were positively identified
at the trial. There is no law requiring a police line-up as essential to a proper identification. 3 The
complainant's recognition of the accused-appellants as her attackers cannot be doubted for she had A Yes, sir.
during the carnal acts ample opportunity to see the faces of the men who ravaged her. It is the most
ATTY. MAIQUEZ:
natural reaction for victims of criminal violence to strive to see the looks and faces of their assailants
and observe the manner in which the crime was committed. Most often the face of the assailant and That will be all." 6
body movements thereof, create a lasting impression which cannot easily be erased from their
The trial court, in the exercise of its discretion to seek clarification in witness' testimony proceeded
memory. 4
as follows:
The accused-appellants further claim that "the Medical Findings of Dr. Danilo Ramirez concludes that
"COURT:
the alleged victim of rape, Vilma de Belen must have had sexual experienced (sic) five (5) to six (6)
days before the alleged incident happened on July 2, 1988 at about 3 to 4 o'clock in the morning". 5 Q Doctor, in your findings you noted that there was an abrasion?
There is no truth to this claim. In fact, there was no categorical or positive assertion on the part of Dr.
A Yes, your Honor.
Ramirez that the sexual intercourse with Vilma was committed on the very date when the alleged
"robbery with rape" took place on July 2, 1988. Q Is that more than one abrasion?
This is a clear distortion of the testimony of Dr. Ramirez who on cross-examination testified as A I found 3 mm., your Honor.
follows:
WITNESS (continuing):
"ATTY. MAIQUEZ:
— and on the lower opening of the vagina on the right side, that is the only place, sir.
Q You cannot also determine when was the first and when was the last intercourse as per your
COURT:
examination?
Q Aside from that injury or rater (sic) that portion there is no other injury which you found?
FISCAL
A None, your Honor.
Objection, witness is incompetent.
Q Because laceration stated in your medicolegal certificate that there was fresh hymenal laceration
COURT
noted at 9 and 4 o'clock on the face of the clock?
Witness may answer.
A Yes, your Honor.
A The findings suggest that because of hymenal laceration the injuries was (sic) recent not more than
Q Do we gather it right when you stated in your medicolegal certificate fresh it is not yet healed?
one week, sir.
A Yes, your Honor.
Q When you say it is not more than one week, could it be 6 or 5 days?
Q From that finding of yours regarding the existence of fresh hymenal laceration you said that it
A Possible, sir.
least one or 2 days had elapsed before you have conducted the physical examination?
Q When you say it is possible that the victim could have experienced sexual intercourse 6 to 5 days
A Yes, your Honor.
that was indicated in your examination marked as Exh. A, can you determine as per your finding?
Q In other words from one to 5 days?
A Well, yes, sir, I placed fresh hymenal laceration because laceration will determine whether it is fresh
or old because of the characteristice (sic) of the laceration, sir. A Yes, your Honor.
Q At the time you examined the patient in your medical opinion it could have been 5 or 6 days had COURT:
elapsed?
Q But it is possible that it could be more than one or two days?.
WITNESS: the offended woman. In a case 11 where three persons, one after another, raped a woman, neither
of the accused was ordered to recognize the offspring simply because it was impossible to
A Yes, your Honor." 7
determine the paternity thereof.
It is evident that Dr. Ramirez never categorically concluded that the sexual intercourse causing the
WHEREFORE, premises considered, the appealed decision is AFFIRMED with the
fresh hymenal lacerations took place five to six days before the date of her examination. The accused-
MODIFICATION that the accused-appellants are held jointly and severally liable to indemnify
appellants' claim that the sexual intercourse took place on June 26 or 27, 1988 is conjectural and
Vilma de Belen for multiple rape in the amount of P90,000.00, and that none of the accused is
without factual basis.
required to recognize the offspring.
The claim of the accused-appellants that the prosecution failed to present rebuttal evidence to refute
SO ORDERED.
the averments of Joel Sartagoda that they tried in vain to persuade him to admit the charge against him
and to implicate his two (2) co-accused did not deserve the attention of the trial court nor does it
deserve Ours, being per se unacceptable and unbelievable in the light of human experience.
Finally, they claim that the fact that Vicente Sta. Ana and Jimmy Bascuña did not flee, even when they
had all the opportunities to do so, prove their innocence. When they were allowed to go home after
Vilma failed to identify them during the first confrontation at the police station, they stayed home and
did not flee until they were again required to appear at the police station for the second time. The
accused-appellants in effect posit that if flight is an indication of guilt, non-flight or the decision not to
CASES:
flee, having the opportunity to do so, is a sign of innocence. 1. BILL OF RIGHTS
We do not agree. Although it is settled that unexplained flight indicates guilt, it does, not necessarily
G.R. No. 130612 May 11, 1999
follow that absence thereof proves innocence, specially so when there is overwhelming evidence to
establish their guilt. PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
This Court finds no reversible error having been committed by the trial court in convicting the three
BERNARDINO DOMANTAY, @ "JUNIOR OTOT," accused-appellant.
accused-appellants for the crime of robbery with multiple rape under Article 294 par. 2 of the Revised
Penal Code. We affirm its findings of fact which are firmly grounded on the evidence presented at the  
trial. We reiterate our ruling thus:
MENDOZA, J.:
"There is need to stress anew that this Court has long been committed to the principle that the
This case is here on appeal from the decision1 of the Regional Trial Court of Dagupan City
determination by a trial judge who could weigh and appraise the testimony as to the facts duly proved
(Branch 57), finding accused-appellant guilty of rape with homicide and sentencing him to death,
is entitled to the highest respect, unless it could be shown that he ignored or disregarded circumstances
and to indemnify the heirs of the victim in the amount of P480,000.00, and to pay the costs.
of weight or influence sufficient to call for a different finding." 8
The facts hark back to the afternoon of October 17, 1996, at around 4 o'clock, when the body of
We are for the affirmance of the conviction of the three accused-appellants. With regard to the
six-year old Jennifer Domantay was found sprawled amidst a bamboo grove in Guilig, Malasiqui,
indemnity to Vilma de Belen for multiple rape, there having been evidence of conspiracy, the act of
Pangasinan. The child's body bore several stab wounds. Jennifer had been missing since lunch
one being the act of all, each must be liable for all the three rapes committed, they must be held
time.
solidarily liable 9 for said indemnity which the trial court fixed at P30,000.00 for each offender or a
total of P90,000.00. 10 The medical examination conducted the following day by Dr. Ma. Fe Leticia Macaranas, the rural
health physician of Malasiqui, showed that Jennifer died of multiple organ failure and
However, this Court cannot uphold the trial court's ruling ordering each of the accused to "recognize
hypovolemic shock secondary to 38 stab wounds at the back. Dr. Macaranas found no lacerations
the offspring if there be any". In multiple rape, not one maybe required to recognized the offspring of
or signs of inflammation of the outer and inner labia and the vaginal walls of the victim's genitalia,
although the vaginal canal easily admitted the little finger with minimal resistance. Noting possible
commission of acts of lasciviousness, Dr. Macaranas recommended an autopsy by a medico-legal
expert of the NBI.2
The investigation by the Malasiqui police pointed to accused-appellant Bernardino Domantay, a
cousin of the victim's grandfather, as the lone suspect in the gruesome crime. At around 6:30 in the
evening of that day, police officers Montemayor, de la Cruz, and de Guzman of the Malasiqui
Philippine National Police (PNP) picked up accused-appellant at the Malasiqui public market and took
him to the police station where accused-appellant, upon questioning by SPO1 Antonio Espinoza,
confessed to killing Jennifer Domantay. He likewise disclosed that at around 3:30 that afternoon, he
had given the fatal weapon used, a bayonet, to Elsa and Jorge Casingal, his aunt and uncle
respectively, in Poblacion Sur, Bayambang, Pangasinan. The next day, October 18, 1996, SPO1
Espinoza and another policeman took accused-appellant to Bayambang and recovered the bayonet
from a tricycle belonging to the Casingal spouses. The police officers executed a receipt to evidence
the confiscation of the weapon.3
On the basis of the post-mortem findings of Dr. Macaranas, SPO4 Juan Carpizo, the Philippine
National Police chief investigator at Malasiqui, filed, on October 21, 1996, a criminal complaint for
murder against accused-appellant before the Municipal Trial Court (MTC) of Malasiqui. On October
25, 1996, Dr. Ronald Bandonill, medico-legal expert of the NBI, performed an autopsy on the
embalmed body of Jennifer. The result of his examination of the victim's genitalia indicated that the
child's hymen had been completely lacerated on the right side. Based on this finding, SPO4 Carpizo
amended the criminal complaint against accused-appellant to rape with homicide. Subsequently, the
following information was filed:4
That on or about the 17th day of October, 1996, in the afternoon, in barangay Guilig,
Municipality of Malasiqui, province of Pangasinan, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd design and
armed with a bayonnete, did then and there, wilfully, unlawfully and feloniously have
sexual intercourse with Jennifer Domantay, a minor of 6 years old against her will
and consent, and on the same occasion, the said accused with intent to kill, then and
there, wilfully, unlawfully and feloniously stab with the use of a bayonnete, the said
Jennifer Domantay, inflicting upon her multiple stab wounds, which resulted to her
death, to the damage and prejudice of her heirs.
At the trial, the prosecution presented seven witnesses, namely, Edward, Jiezl, Lorenzo, all surnamed
Domantay, Joselito Mejia, Antonio Espinoza, Celso Manuel, and Dr. Ronald Bandonill, to establish its
charge that accused-appellant had raped and killed Jennifer Domantay.
Edward Domantay testified that in the morning of October 17, 1996, accused-appellant and his two
brothers-in-law, Jaime Caballero and Daudencio Macasaeb, had a round of drinks in front of the
latter's house in Guilig, Malasiqui, Pangasinan. Edward Domantay said that he was in front of
Macasaeb's house, tending to some pigeons in his yard.5 After the group had consumed several
bottles of San Miguel gin, accused-appellant gave money to Edward Domantay and asked him to
buy two bottles of gin and a bottle of Sprite.6 Edward said he joined the group and sat between
Daudencio Macasaeb and accused-appellant. 7 Edward said that accused-appellant, who,
apparently had one too many then, rolled up his shirt and said: "No diad Antipolo tan L[i]pa et
walay massacre, diad Guilig wala, walay massacren kod dia, walay onakis-akis" ("In Antipolo and
Lipa, there were massacres; here in Guilig, there will also be a massacre. I will massacre somebody
here, and they will cry and cry"). Edward Domantay saw that tucked in the left side of accused-
appellant's waistline was a bayonet without a cover handle.8 It was not the first time that Edward
had seen accused-appellant with the knife as the latter usually carried it with him.9
Jiezl Domantay, 10, likewise testified. She said that, at about 2 o'clock in the afternoon on October
17, 1996, she and four other children were playing in front of their house in Guilig, Malasiqui,
Pangasinan. Jiezl saw accused-appellant and Jennifer Domantay walking towards the bamboo
grove of Amparo Domantay where Jennifer's body was later found. Accused-appellant was about
two meters ahead of Jennifer. The bamboo grove was about 8 to 10 meters from the house of Jiezl
Domantay. 10
Lorenzo Domantay, a relative of the victim, corroborated Jiezl's testimony that accused-appellant
had gone to Amparo Domantay's bamboo grove in the afternoon of October 17, 1996. Lorenzo said
that afternoon, on his way to his farm, he saw accused-appellant about 30 meters away, standing at
the spot in the bamboo grove where Jennifer's body was later found. Accused-appellant appeared
restless and worried as he kept looking around. However, as Lorenzo was in a hurry, he did not try
to find out why accused-appellant appeared to be nervous. 11
Prosecution witness Joselito Mejia, a tricycle driver, said that, in the afternoon of October 17,
1996, he was about to take his lunch at home in Alacan, a neighboring barangay about half a
kilometer from Guilig, when accused-appellant implored Mejia to take him to Malasiqui at once.
Mejia told accused-appellant that he was going to take his lunch first, but the latter pleaded with
him, saying they will not be gone for long. Mejia, therefore, agreed. Mejia noticed that accused-
appellant was nervous and afraid. Accused-appellant later changed his mind. Instead of going to
the town proper, he alighted near the Mormon's church, outside Malasiqui. 12
In addition, the prosecution presented SPO1 Antonio Espinoza and Celso Manuel who testified
that, on separate occasions, accused-appellant had confessed to the brutal killing of Jennifer
Domantay.
SPO1 Espinoza testified that he investigated accused-appellant after the latter had been brought to the
Malasiqui police station in the evening of October 17, 1996. Before he commenced his questioning, he
apprised accused-appellant of his constitutional right to remain silent and to have competent and
independent counsel, in English, which was later translated into Pangasinense. 13 According to SPO1
Espinoza, accused-appellant agreed to answer the questions of the investigator even in the absence of
counsel and admitted killing the victim. Accused-appellant also disclosed the location of the bayonet
he used in killing the victim. 14 On cross-examination, Espinoza admitted that at no time during the
course of his questioning was accused-appellant assisted by counsel. Neither was accused-appellant's
confession reduced in writing. 15 Espinoza's testimony was admitted by the trial court over the
objection of the defense.
Celso Manuel, for his part, testified that he is a radio reporter of station DWPR, an AM station based
in Dagupan City. He covers the third district of Pangasinan, including Malasiqui. Sometime in
October 1996, an uncle of the victim came to Dagupan City and informed the station about Jennifer
Domantay's case. 16 On October 23, 1996, Manuel went to Malasiqui to interview accused-appellant
who was then detained in the municipal jail. He described what transpired during the interview thus:
17
PROS. QUINIT:
Q Did you introduce yourself as a media practitioner?
A Yes, sir.
Q How did you introduce yourself to the accused?
A I showed to Bernardino Domantay alias "Junior Otot" my I.D.
card and I presented myself as a media practitioner with my tape
recorder [in] my hand, sir.
Q What was his reaction to your request for an interview?
A He was willing to state what had happened, sir.
Q What are those matters which you brought out in that interview
with the accused Bernardino Domantay alias "Junior Otot"?
A I asked him what was his purpose for human interest's sake as a
reporter, why did he commit that alleged crime. And I asked also if
he committed the crime and he answered "yes." That's it.
x x x           x x x          x x x
PROS. QUINIT:
Q You mentioned about accused admitting to you on the
commi[ssion] of the crime, how did you ask him that?
A I asked him very politely.
Q More or less what have you asked him on that particular
matter?
A I asked "Junior Otot," Bernardino Domantay, "Kung
pinagsisisihan mo ba ang iyong ginawa?" "Opo" sabi niya, "Ibig
mo bang sabihin Jun, ikaw ang pumatay kay Jennifer?", "Ako
nga po" The [l]ast part of my interview, "Kung nakikinig ang
mga magulang ni Jennifer, ano ang gusto mong iparating?",
"kung gusto nilang makamtan ang hustisya ay tatanggapin ko".
That is what he said, and I also asked Junior Otot, what was his
purpose, and he said, it was about the boundary dispute, and he
used that little girl in his revenge.
On cross-examination, Manuel explained that the interview was conducted in the jail, about two to
three meters away from the police station. An uncle of the victim was with him and the nearest
policemen present were about two to three meters from him, including those who were in the radio
room. 18 There was no lawyer present. Before interviewing accused-appellant, Manuel said he
talked to the chief of police and asked permission to interview accused-appellant. 19 On
questioning by the court, Manuel said that it was the first time he had been called to testify
regarding an interview he had conducted. 20 As in the case of the testimony of SPO1 Espinoza, the
defense objected to the admission of Manuel's testimony, but the lower court allowed it.
Dr. Bandonill, the NBI medico-legal who conducted an autopsy of the victim on October 25, 1996,
testified that Jennifer Domantay died as a result of the numerous stab wounds she sustained on her
back, 21 the average depth of which was six inches. 22 He opined that the wounds were probably
caused by a "pointed sharp-edged instrument." 23 He also noted on the aforehead, neck, and breast
bone of the victim. 24 As for the results of the genital examination of the victim, Dr. Bandonill said
he found that the laceration on the right side of the hymen was caused within 24 hours of her death.
He added that the genital area showed signs of inflammation. 25
Pacifico Bulatao, the photographer who took the pictures of the scene of the crime and of the
victim after the latter's body was brought to her parents' house, identified and authenticated the five
pictures (Exhibits A, B, C, D, and E) offered by the prosecution.
The defense then presented accused-appellant as its lone witness. Accused-appellant denied the
allegation against him. He testified he is an uncle of Jennifer Domantay (he and her grandfather are
cousins) and that he worked as a janitor at the Malasiqui Municipal Hall. He said that at around 1
o'clock in the afternoon of October 17, 1996, he was bathing his pigs outside in the house of his II
brother-in-law Daudencio Macasaeb in Guilig, Malasiqui, Pangasinan. He confirmed that Daudencio
THE COURT A QUO ERRED IN CONVICTING THE ACCUSED DESPITE
was then having drinks in front of his (Macasaeb's) house. Accused-appellant claimed, however, that
FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND
he did not join in the drinking and that it was Edward Domantay, whom the prosecution had presented
REASONABLE DOUBT.
as witness, and a certain Jaime Caballero who joined the party. He also claimed that it was he whom
Macasaeb had requested to buy some more liquor, for which reason he gave money to Edward First. Accused-appellant contends that his alleged confessions to SPO1 Antonio Espinoza and
Domantay so that the latter could get two bottles of gin, a bottle of Sprite, and a pack of cigarettes. 26 Celso Manuel are inadmissible in evidence because they had been obtained in violation of Art. III,
He denied Edward Domantay's claim that he (accused-appellant) had raised his shirt to show a § 12(1) of the Constitution and that, with these vital pieces of evidence excluded, the remaining
bayonet tucked in his waistline and that he had said he would massacre someone in Guilig. 27 proof of his alleged guilt, consisting of circumstantial evidence, is inadequate to establish his guilt
beyond reasonable doubt. 33
Accused-appellant also confirmed that, at about 2 o'clock in the afternoon, he went to Alacan passing
on the trail beside the bamboo grove of Amparo Domantay. But he said he did not know that Jennifer Art. III, § 12 of the Constitution in part provides:
Domantay was following him. He further confirmed that in Alacan, he took a tricycle to Malasiqui.
(1) Any person under investigation for the commission of an offense shall have
The tricycle was driven by Joselito Mejia. He said he alighted near the Mormon church, just outside of
the right to be informed of his right to remain silent and to have competent and
the town proper of Malasiqui to meet his brother. As his brother did not come, accused-appellant
independent counsel preferably of his own choice. If the person cannot afford the
proceeded to town and reported for work. That night, while he was in the Malasiqui public market, he
services of counsel, he must be provided with one. These rights cannot be waived
was picked up by three policemen and brought to the Malasiqui police station where he was
except in writing and in the presence of counsel.
interrogated by SPO1 Espinoza regarding the killing of Jennifer Domantay. He denied having owned
to the killing of Jennifer Domantay to SPO1 Espinoza. He denied he had a grudge against the victim's xxx xxx xxx
parents because of a boundary dispute. 28 With respect to his extrajudicial confession to Celso
(3) Any confession or admission obtained in violation of this section or section 17
Manuel, he admitted that he had been interviewed by the latter, but he denied that he ever admitted
hereof shall be inadmissible in evidence.
anything to the former. 29
This provision applies to the stage of custodial investigation, that is, "when the investigation is no
As already stated, the trial court found accused-appellant guilty as charged. The dispositive portion of
longer a general inquiry into an unsolved crime but starts to focus on a particular person as a
its decision reads: 30
suspect." 34 R.A. No. 7438 has extended the constitutional guarantee to situations in which an
WHEREFORE, in light of all the foregoing, the Court hereby finds the accused, individual has not been formally arrested but has merely been "invited" for questioning. 35
Bernardino Domantay @ "Junior Otot" guilty beyond reasonable doubt with the
Decisions 36 of this Court hold that for an extrajudicial confession to be admissible, it must satisfy
crime of Rape with Homicide defined and penalized under Article 335 of the Revised
the following requirements: (1) it must be voluntary; (2) it must be made with the assistance of
Penal Code in relation and as amended by Republic Act No. 7659 and accordingly,
competent and independent counsel; (3) it must be express; and (4) it must be in writing.
the Court hereby sentences him to suffer the penalty of death by lethal injection, and
to indemnify the heirs of the victim in the total amount of Four Hundred Eighty In the case at bar, when accused-appellant was brought to the Malasiqui police station in the
Thousand Pesos (P480,000.00), 31 and to pay the costs. evening of October 17, 1996, 37 he was already a suspect, in fact the only one, in the brutal slaying
of Jennifer Domantay. He was, therefore, already under custodial investigation and the rights
SO ORDERED.
guaranteed in Art. III, § 12(1) of the Constitution applied to him. SPO1 Espinoza narrated what
In this appeal, accused-appellant alleges that: 32 transpired during accused-appellant's interrogation: 38
I [I] interrogated Bernardino Domantay, prior to the interrogation conducted to him,
I informed him of his constitutional right as follows; that he has the right to
THE COURT A QUO ERRED IN APPRECIATING THE EXTRAJUDICIAL
remain silent; that he has the right to a competent lawyer of his own choice and if
CONFESSION[S] MADE BY THE ACCUSED-APPELLANT.
 he can not afford [a counsel] then he will be provided with one, and further informed
[him] that all he will say will be reduced into writing and will be used the same in the
proceedings of the case, but he told me that he will cooperate even in the absence of
his counsel; that he admitted to me that he killed Jennifer Domantay, and he revealed
also the weapon used [and] where he gave [it] to.
But though he waived the assistance of counsel, the waiver was neither put in writing nor made in the
presence of counsel. For this reason, the waiver is invalid and his confession is inadmissible. SPO1
Espinoza's testimony on the alleged confession of accused-appellant should have been excluded by the
trial court. So is the bayonet inadmissible in evidence, being, as it were, the "fruit of the poisonous
tree." As explained in People v. Alicando: 39
. . . According to this rule, once the primary source (the "tree") is shown to have been
unlawfully obtained, any secondary or derivative evidence (the "fruit") derived from
it is also inadmissible. Stated otherwise, illegally seized evidence is obtained as a
direct result of the illegal act, whereas the "fruit of the poisonous tree" is at least once
removed from the illegally seized evidence, but it is equally inadmissible. The rule is
based the principle that evidence illegally obtained by the State should not be used to
gain other evidence because the originally illegal obtained evidence taints all
evidence subsequently obtained.
We agree with the Solicitor General, however, that accused-appellant's confession to the radio
reporter, Celso Manuel, is admissible. In People v.
Andan, 40 the accused in a rape with homicide case confessed to the crime during interviews with the
media. In holding the confession admissible, despite the fact that the accused gave his answers without
the assistance of counsel, this Court said: 41
[A]ppellant's [oral] confessions to the newsmen are not covered by Section 12(1) and
(3) of Article III of the Constitution. The Bill of Rights does not concern itself with
the relation between a private individual and another individual. It governs the
relationship between the individual and the State. The prohibitions therein are
primarily addressed to the State and its agents.
Accused-appellant claims, however, that the atmosphere in the jail when he was interviewed was
"tense and intimidating" and was similar to that which prevails in a custodial investigation. 42 We are
not persuaded. Accused-appellant was interviewed while he was inside his cell. The interviewer stayed
outside the cell and the only person besides him was an uncle of the victim. Accused-appellant could
have refused to be interviewed, but instead, he agreed. He answered questions freely and
spontaneously. According to Celso Manuel, he said he was willing to accept the consequences of his
act.
Celso Manuel admitted that there were indeed some police officers around because about two to
three meters from the jail were the police station and the radio room. 43 We do not think the
presence of the police officers exerted any undue pressure or influence on accused-appellant and
coerced him into giving his confession.
Accused-appellant contends that "it is . . . not altogether improbable for the police investigators to
ask the police reporter (Manuel) to try to elicit some incriminating information from the accused."
44 This is pure conjecture. Although he testified that he had interviewed inmates before, there is no
evidence to show that Celso was a police beat reporter. Even assuming that he was, it has not been
shown that, in conducting the interview in question, his purpose was to elicit incriminating
information from accused-appellant. To the contrary, the media are known to take an opposite
stance against the government by exposing official wrongdoings.
Indeed, there is no showing that the radio reporter was acting for the police or that the interview
was conducted under circumstances where it is apparent that accused-appellant confessed to the
killing our of fear. As already stated, the interview was conducted on October 23, 1996, 6 days
after accused-appellant had already confessed to the killing to the police.
Accused-appellant's extrajudicial confession is corroborated by evidence of corpus delicti, namely,
the fact of death of Jennifer Domantay. In addition, the circumstantial evidence furnished by the
other prosecution witnesses dovetails in material points with his confession. He was seen walking
toward the bamboo grove, followed by the victim. Later, he was seen standing near the bamboo
grove where the child's body was found. Rule 133 of the Revised Rules on Evidence provides:
§3. Extrajudicial confession, not sufficient ground for conviction. — An
extrajudicial confession made by an accused, shall not be sufficient ground for
conviction, unless corroborated by evidence of corpus delicti.
§4. Evidence necessary in treason cases. — No person charged with treason shall
be convicted unless on the testimony of two witnesses to the same overt act, or on
confession in open court.
Accused-appellant argues that it was improbable for a brutal killing to have been committed
without the children who were playing about eight to ten meters from Amparo Domantay's grove,
where the crime took place, having heard any commotion. 45 The contention has no merit.
Accused-appellant could have covered the young child's mouth to prevent her from making any
sound. In fact, Dr. Bandonill noted a five by two inch (5" x 2") contusion on the left side of the
victim's forehead, which he said could have been caused by a hard blunt instrument or by impact as
her head hit the ground. 46 The blow could have rendered her unconscious, thus precluding her
from shouting or crying.
Accused-appellant also contends that the testimony of Jiezl Domantay contradicts that of Lorenzo snuffed out [her] life." 50 In this case, there is no such proof of cruelty. Dr. Bandonill testified that
Domantay because while Jiezl said she had seen accused-appellant walking towards the bamboo any of the major wounds on the victim's back could have caused her death as they penetrated her
grove, followed by the victim, at around 2 o'clock in the afternoon on October 17, 1996. Lorenzo said heart, lungs and liver, kidney and intestines. 51
he saw accused-appellant standing near the bamboo grove at about the same time.
Second. There is, however, no sufficient evidence to hold accused-appellant guilty of raping
These witnesses, however, did not testify concerning what they saw exactly the same time. What they Jennifer Domantay. Art. 335. of the Revised Penal Code, as amended, in part provides:
told the court was what they had seen "at around" 2 o'clock in the afternoon. There could have been a
Art. 335. When and how rape is committed. — Rape is committed by having
between difference in time, however little it was, between the time Jiezl saw accused-appellant and the
carnal knowledge of a woman under any of the following circumstances.
victim walking and the time Lorenzo saw accused-appellant near the place where the victim's body
was later found. Far from contradicting each other, these witnesses confirmed what each had said each 1. By using force or intimidation;
one saw. What is striking about their testimonies is that while Jiezl said she saw accused-appellant
2. When the woman is deprive of reason or otherwise unconscious; and
going toward the bamboo grove followed by the victim "at around" 2 o'clock in the afternoon on
October 17, 1996, Lorenzo said he had seen accused-appellant near the bamboo grove "at around" that 3. When the woman is under twelve years of age or is demented.
time. He described accused-appellant as nervous and worried. There is no reason to doubt the claim of
As the victim here was six years old, only carnal knowledge had to be proved to establish
these witnesses. Lorenzo is a relative of accused-appellant. There is no reason he would testified
rape. Carnal knowledge is defined as the act of a man having sexual intercourse or sexual
falsely against the latter. Jiezl, on the other hand, is also surnamed Domantay and could also be related
bodily connections with a woman. 52 For this purpose, it is enough if there was even the
to accused-appellant and has not been shown to have any reason to testify falsely against accused-
slightest contact of the male sex organ with the labia of the victim's genitalia. 53 However,
appellant. At the time of the incident, she was only 10 years old.
there must be proof, by direct or indirect evidence, of such contact.
For the foregoing reasons, the Court is convinced of accused-appellant's guilt with respect to the
Dr. Ronald Bandonill's report on the genital examination he had performed on the deceased reads:
killing of the child. It is clear that the prosecution has proven beyond reasonable doubt that accused-
54
appellant is guilty of homicide. Art. 249 of the Revised Penal Code provides:
GENITAL EXAMINATION; showed a complete laceration of the right side of the
Any person who, not falling within the provisions of Article 246 [parricide] shall kill
hymen. The surrounding genital area shows signs of inflammation.
another without the attendance of any of the circumstances enumerated in the next
preceding article [murder], shall be deemed guilty of homicide and be punished by xxx xxx xxx
reclusion temporal.
REMARKS: 1) Findings at the genital area indicate the probability of penetration
The killing was committed with the generic aggravating circumstance of abuse of superior strength. of that area by a hard, rigid instrument.
The record shows that the victim, Jennifer Domantay, was six years old at the time of the killing. She
Hymenal laceration is not necessary to prove rape; 55 neither does its presence prove its
was a child of small build, 46" in height. 47 It is clear then that she could not have put up much of a
commission. As held in People v. Ulili, 56 a medical certificate or the testimony of the physician is
defense against accused-appellant's assault, the latter being a fully grown man of 29 years. Indeed, the
presented not to prove that the victim was raped but to show that the latter had lost her virginity.
physical evidence supports a finding of abuse of superior strength: accused-appellant had a weapon,
Consequently, standing alone, a physician's finding that the hymen of the alleged victim was
while the victim was not shown to have had any; there were 38 stab wounds; and all the knife wounds
lacerated does not prove rape. It is only when this is corroborated by other evidence proving carnal
are located at the back of Jennifer's body.
knowledge that rape may be deemed to have been established. 57
But we think the lower court erred in finding that the killing was committed with cruelty. 48 The trial
This conclusion is based on the medically accepted fact that a hymenal tear may be caused by
court appears to have been led to this conclusion by the number of wounds inflicted on the victim. But
objects other than the male sex organ 58 or may arise from other causes. 59 Dr. Bandonill himself
the number of wounds is not a test for determining whether there was circumstance. 49 "The rest . . . is
admitted this. He testified that the right side of the victim's hymen had been completely lacerated
whether the accused deliberately and sadistically augmented the victim's suffering thus . . . there must
while the surrounding genital area showed signs of inflammation. 60 He opined that the laceration
be proof that the victim was made to agonize before the [the accused] rendered the blow which
had been inflicted within 24 hours of the victim's death and that the inflammation was due to a trauma
in that area. 61 When asked by the private prosecutor whether the lacerations of the hymen could have
been caused by the insertion of a male organ he said this was possible. But he also said when
questioned by the defense that the lacerations could have been caused by something blunt other than
the male organ. Thus, he testified: 62
PROS. F. QUINIT:
Q Now, what might have caused the complete laceration of the right
side of the hymen, doctor?
A Well, sir, if you look at my report there is a remark and it says
there; findings at the genital area indicated the probability of
penetration of that area by a hard rigid instrument.
Q Could it have been caused by a human organ?
A If the human male organ is erect, fully erect and hard then it is
possible, sir.
x x x           x x x          x x x
ATTY. VALDEZ:
Q In your remarks; finding at the genital area indicates the
probability of penetration of that area by a hard rigid instrument, this
may have also been caused by a dagger used in the killing of
Jennifer Domantay is that correct?
A Well, sir when I say hard rigid instrument it should not be sharp
pointed and share rigid, it should be a hard bl[u]nt instrument.
Q Do you consider a bolo a bl[u] instrument, or a dagger?
A The dagger is a sharp rigid but it is not a bl[u]nt instrument, sir.
Q This Genital Examination showed a complete laceration of the
right side of the hymen, this may have been possibly caused by a
dagger, is it not?
A No, sir. I won't say that this would have been caused by a dagger,
because a dagger would have made at its incision . . . not a
laceration, sir.
Q But this laceration may also have been caused by other factors
other the human male organ, is that correct?
A A hard bl[u]nt instrument, sir could show.
Q My question is other than the human male organ?
A Possible, sir.
x x x           x x x          x x x
COURT:
Q You mentioned that the hymen was lacerated on the right side?
A Yes, your Honor.
Q And if there is a complete erection by a human organ is this
possible that the laceration can only be on the right side of the
hymen?
A Yes, your Honor, its possible.
Q How about if the penetration was done by a finger, was it the
same as the human organ?
A Well, it defends on the size of the finger that penetrat[es] that
organ, if the finger is small it could the superficial laceration, and
if the finger is large then it is possible your honor.
Q How about two fingers?
A Possible, sir.
To be sure, this Court has sustained a number of convictions for rape with homicide based on
purely circumstantial evidence. In those instances, however, the prosecution was able to present
other tell-tale signs of rape such as the location and description of the victim's clothings, especially
her undergarments, the position of the body when found and the like. 63 In People v. Macalino, 64
for instance, the Court affirmed a conviction for the rape of a two-year old child on the basis of
circumstantial evidence. 65
The Court notes that the testimony or medical opinion of Dr. Gajardo that the
fresh laceration had been produced by sexual intercourse is corroborated by the
testimony given by complainant. Elizabeth that when she rushed upstairs upon
hearing her daughter suddenly cry out, she found appellant Macalino beside the
 child buttoning his own pants and that she found some sticky fluid on the child's
buttocks and some blood on her private part.(Emphasis in the original)
In contrast, in the case at bar, there is no circumstantial evidence from which to infer that accused-
appellant sexually abused the victim. The only circumstance from which such inference might be
made is that accused-appellant was seen with the victim walking toward the place where the girl's
body was found. Maybe he raped the girl. Maybe he did not. Maybe he simply inserted a blunt object
into her organ, thus causing the lacerations in the hymen. Otherwise, there is no circumstance from
which it might reasonably be inferred that he abused her, e.g., that he was zipping up his pants, that
there was spermatozoa in the girl's vaginal canal.
Indeed, the very autopsy report of Dr. Bandonill militates against the finding of rape. In describing the
stab wounds on the body of the victim, he testified: 66
[A]fter examining the body I took note that were several stab wounds . . . these were
all found at the back area sir . . . extending from the back shoulder down to the lower
back area from the left to the right.
Considering the relative physical positions of the accused and the victim in crimes of rape, the
usual location of the external bodily injuries of the victim is on the face, 67 neck, 68 and
anterior portion 69 of her body. Although it is not unnatural to find contusions on the posterior
side, these are usually caused by the downward pressure on the victim's body during the
sexual assault.70 It is unquestionably different when, as in this case, all the stab wounds
(except for a minor cut in the lower left leg) had their entry points at the back running from
the upper left shoulder to the lower right buttocks.
It is noteworthy that the deceased was fully clothed in blue shorts and white shirt when her body was
immediately after it was found. 71 Furthermore, there is a huge bloodstain in the back portion of her
shorts. 72 This must be because she wearing this piece of clothing when the stab wounds were
inflicated or immediately thereafter, thus allowing the blood to seep into her shorts to such an extent.
As accused-appellant would naturally have to pull down the girl's lower garments in order to
consummate the rape, then, he must have, regardless of when the stab wounds were inflicted, pulled
up the victim's shorts and undergarments after the alleged rape, otherwise, the victim's shorts would
not have been stained so extensively. Again, this is contrary to ordinary human experience.
Even assuming that Jennifer had been raped, there is no sufficient proof that it was accused-appellant
who had raped her. He did not confess to having raped the victim.
From the foregoing, we cannot find that accused-appellant also committed rape. In the special
complex crime of rape with homicide, both the rape and the homicide must be established beyond
reasonable doubt. 73
Third. The trial court ordered accused-appellant to pay the heirs of Jennifer Domantay the amount
of P30,000.00 as actual damages. However, the list of expenses produced by the victim's father,
Jaime Domantay, only totaled P28,430.00. Of this amount, only P12,000.00 was supported by a
receipt. Art. 2199 of the Civil Code provides that a party may recover actual or compensatory
damages only for such loss as he has duly proved. Therefore, the award of actual damages should
be reduced to P12,000.00.
In addition, the heirs of Jennifer Domantay are entitled to recover exemplary damages in view of
the presence of the aggravating circumstance of abuse of superior strength. Art. 2230 of the Civil
Code provides for the payment of exemplary damages when the crime is committed with one or
more aggravating circumstance. An amount of P25,000.00 is deemed appropriate. 74
In accordance with our rulings in People v. Robles 75 and People v. Mengote, 76 the indemnity
should be fixed at P50,000.00 and the moral damages at P50,000.00. 77
WHEREFORE, the judgment of the trial court is SET ASIDE and another one is rendered
FINDING accused-appellant guilty of homicide with the aggravating circumstance of abuse of
superior strength and sentencing him to a prison term of 12 years of prision mayor, as minimum, to
20 years of reclusion temporal, as maximum, and ORDERING him to pay the heirs of Jennifer
Domantay the amounts of P50,000.00, as indemnity, P50,000.00, as moral damages, P25,000.00,
as exemplary damages, and P12,000.00, as actual damages, and the costs.1âwphi1.nêt
SO ORDERED.
2. RULE 129, SEC. 1, 2 & 3. JUDICIAL NOTICE
A.M. No. RTJ-92-876 September 19, 1994
STATE PROSECUTORS, complainants,
vs.
JUDGE MANUEL T. MURO, Regional Trial Court, Branch 54, Manila, respondent.
PER CURIAM:
In assaying the requisite norms for qualifications and eminence of a magistrate, legal authorities
place a premium on how he has complied with his continuing duty to know the law. A quality thus
considered essential to the judicial character is that of "a man of learning who spends tirelessly the
weary hours after midnight acquainting himself with the great body of traditions and the learning
of the law; is profoundly learned in all the learning of the law; and knows how to use that
learning." 1
Obviously, it is the primary duty of a judge, which he owes to the public and to the legal profession, to as in the case of persons who had pending criminal cases before the courts for
know the very law he is supposed to apply to a given controversy. He is called upon to exhibit more violations of Central Bank Circulars and/or regulations previously issued on the
than just a cursory acquaintance with the statutes and procedural rules. Party litigants will have great matter;
faith in the administration of justice if judges cannot justly be accused of apparent deficiency in their
5. That respondent Judge's arrogant and cavalier posture in taking judicial notice
grasp of the legal principles. For, service in the judiciary means a continuous study and research on the
purportedly as a matter of public knowledge a mere newspaper account that the
law from beginning to end. 2
President had announced the lifting of foreign exchange restrictions as basis for
In a letter-complaint 3 dated August 19, 1992, respondent Judge Manuel T. Muro of the Regional Trial his assailed order of dismissal is highly irregular, erroneous and misplaced. For
Court (RTC) of Manila, Branch 54, was charged by State Prosecutors Nilo C. Mariano, George C. Dee the respondent judge to take judicial notice thereof even before it is officially
and Paterno V. Tac-an with ignorance of the law, grave misconduct and violations of Rules 2.01, 3.01 released by the Central Bank and its full text published as required by law to be
and 3.02 of the Code of Judicial Conduct, committed as follows: effective shows his precipitate action in utter disregard of the fundamental precept
of due process which the People is also entitled to and exposes his gross ignorance
1. That on August 13, 1992, respondent judge issued an Order dismissing eleven (11)
of the law, thereby tarnishing public confidence in the integrity of the judiciary.
cases (docketed as Crim. Cases Nos. 92-101959 to 92- 101969, inclusive) filed by the
How can the Honorable Judge take judicial notice of something which has not yet
undersigned complainant prosecutors (members of the DOJ Panel of Prosecutors)
come into force and the contents, shape and tenor of which have not yet been
against the accused Mrs. Imelda Romualdez Marcos, for Violation of Central Bank
published and ascertained to be the basis of judicial action? The Honorable Judge
Foreign Exchange Restrictions, as consolidated in CB Circular No. 960, in relation to
had miserably failed to "endeavor diligently to ascertain the facts" in the case at
the penal provisions of Sec. 34 of R.A. 265, as amended, . . .;
bar contrary to Rule 3.02 of the Code of Judicial Conduct constituting Grave
2. That respondent Judge issued his Order solely on the basis of newspaper reports Misconduct;
(August 11, 1992 issues of the Philippine Daily Inquirer and the Daily Globe)
6. That respondent Judge did not even ha(ve) the prudence of requiring first the
concerning the announcement on August 10, 1992 by the President of the Philippines
comment of the prosecution on the effect of aforesaid Central Bank
of the lifting by the government of all foreign exchange restrictions and the arrival at
Circular/Monetary Board resolution on the pending cases before dismissing the
such decision by the Monetary Board as per statement of Central Bank Governor Jose
same, thereby denying the Government of its right to due process;
Cuisia;
7. That the lightning speed with which respondent Judge acted to dismiss the
3. That claiming that the reported announcement of the Executive Department on the
cases may be gleaned from the fact that such precipitate action was undertaken
lifting of foreign exchange restrictions by two newspapers which are reputable and of
despite already scheduled continuation of trial dates set in the order of the court
national circulation had the effect of repealing Central Bank Circular No. 960, as
(the prosecution having started presenting its evidence . . .) dated August 11, 1992
allegedly supported by Supreme Court decisions . . ., the Court contended that it was
to wit: August 31, September 3, 10, 21, & 23 and October 1, 1992, all at 9:30
deprived of jurisdiction, and, therefore, motu, prop(r)io had to dismiss all the eleven
o'clock in the morning, in brazen disregard of all notions of fair play, thereby
cases aforementioned "for not to do so opens this Court to charges of trying cases
depriving the Government of its right to be heard, and clearly exposing his bias
over which it has no more jurisdiction;"
and partiality; and
4. That in dismissing aforecited cases on August 13, 1992 on the basis of a Central
8. That, in fact, the motive of respondent Judge in dismissing the case without
Bank Circular or Monetary Board Resolution which as of date hereof, has not even
even waiting for a motion to quash filed by the counsel for accused has even
been officially issued, and basing his Order/decision on a mere newspaper account of
placed his dismissal Order suspect.
the advance announcement made by the President of the said fact of lifting or
liberalizing foreign exchange controls, respondent judge acted prematurely and in Pursuant to a resolution of this Court dated September 8, 1992, respondent judge filed his
indecent haste, as he had no way of determining the full intent of the new CB comment, 4 contending, inter alia, that there was no need to await publication of the Central Bank
Circular or Monetary Board resolution, and whether the same provided for exception, (CB) circular repealing the existing law on foreign exchange controls for the simple reason that the
public announcement made by the President in several newspapers of general circulation lifting
foreign exchange controls was total, absolute, without qualification, and was immediately effective;
that having acted only on the basis of such announcement, he cannot be blamed for relying on the
erroneous statement of the President that the new foreign exchange rules rendered moot and academic
the cases filed against Mrs. Marcos, and which was corrected only on August 17, 1992 but published
in the newspapers on August 18, 1992, and only after respondent judge had issued his order of
dismissal dated August 13, 1992; that the President was ill-advised by his advisers and, instead of
rescuing the Chief Executive from embarrassment by assuming responsibility for errors in the latter's
announcement, they chose to toss the blame for the consequence of their failures to respondent judge
who merely acted on the basis of the announcements of the President which had become of public
knowledge; that the "saving clause" under CB Circular No. 1353 specifically refers only to pending
actions or investigations involving violations of CB Circular No. 1318, whereas the eleven cases
dismissed involved charges for violations of CB Circular No. 960, hence the accused cannot be tried
and convicted under a law different from that under which she was charged; that assuming that
respondent judge erred in issuing the order of dismissal, the proper remedy should have been an
appeal therefrom but definitely not an administrative complaint for his dismissal; that a mistake
committed by a judge should not necessarily be imputed as ignorance of the law; and that a "court can
reverse or modify a doctrine but it does not show ignorance of the justices or judges whose decisions
were reversed or modified" because "even doctrines initiated by the Supreme Court are later reversed,
so how much more for the lower courts?"
He further argued that no hearing was necessary since the prosecution had nothing to explain because,
as he theorized, "What explanation could have been given? That the President was talking 'through his
hat' (to use a colloquialism) and should not be believed? That I should wait for the publication (as now
alleged by complainants), of a still then non-existent CB circular? . . . As it turned out, CB Circular
No. 3153 (sic) does not affect my dismissal order because the said circular's so-called saving clause
does not refer to CB Circular 960 under which the charges in the dismissed cases were based;" that it
was discretionary on him to take judicial notice of the facts which are of public knowledge, pursuant
to Section 2 of Rule 129; that the contention of complainants that he acted prematurely and in indecent
haste for basing his order of dismissal on a mere newspaper account is contrary to the wordings of the
newspaper report wherein the President announced the lifting of controls as an accomplished fact, not
as an intention to be effected in the future, because of the use of the present perfect tense or past tense
"has lifted," not that he "intends to lift," foreign exchange controls.
Finally, respondent judge asseverates that complainants who are officers of the Department of Justice,
violated Section 6, Rule 140 of the Rules of Court which provides that "proceedings against judges of
first instance shall be private and confidential" when they caused to be published in the newspapers
the filing of the present administrative case against him; and he emphasizes the fact that he had to
immediately resolve a simple and pure legal matter in consonance with the admonition of the
Supreme Court for speedy disposition of cases.
In their reply 5 and supplemental reply, 6 complainants aver that although the saving clause under
Section 16 of CB Circular No. 1353 made specific reference to CB Circular No. 1318, it will be
noted that Section 111 of Circular No. 1318, which contains a saving clause substantially similar to
that of the new circular, in turn refers to and includes Circular No. 960. Hence, whether under
Circular No. 1318 or Circular No. 1353, pending cases involving violations of Circular No. 960 are
excepted from the coverage thereof. Further, it is alleged that the precipitate dismissal of the eleven
cases, without according the prosecution the opportunity to file a motion to quash or a comment, or
even to show cause why the cases against accused Imelda R. Marcos should not be dismissed, is
clearly reflective of respondent's partiality and bad faith. In effect, respondent judge acted as if he
were the advocate of the accused.
On December 9, 1993, this Court issued a resolution referring the complaint to the Office of the
Court Administrator for evaluation, report and recommendation, pursuant to Section 7, Rule 140 of
the Rules of Court, as revised, there being no factual issues involved. The corresponding report and
recommendation, 7 dated February 14, 1994, was submitted by Deputy Court Administrator
Juanito A. Bernad, with the approval of Court Administrator Ernani Cruz-Paño.
The questioned order 8 of respondent judge reads as follows:
These eleven (11) cases are for Violation of Central Bank Foreign Exchange
Restrictions as consolidated in CB Circular No. 960 in relation to the penal
provision of Sec. 34 of R.A. 265, as amended.
The accused Mrs. Imelda R. Marcos pleaded not guilty to all these cases;
apparently the other accused in some of these cases, Roberto S. Benedicto, was
not arrested and therefore the Court did not acquire jurisdiction over his person;
trial was commenced as against Mrs. Marcos.
His Excellency, the President of the Philippines, announced on August 10, 1992
that the government has lifted all foreign exchange restrictions and it is also
reported that Central Bank Governor Jose Cuisia said that the Monetary Board
arrived at such decision (issue of the Philippine Daily Inquirer, August 11, 1992
and issue of the Daily Globe of the same date). The Court has to give full
confidence and credit to the reported announcement of the Executive Department,
specially from the highest official of that department; the Courts are charged with
judicial notice of matters which are of public knowledge, without introduction of
proof, the announcement published in at least the two newspapers cited above
which are reputable and of national circulation.
 Per several cases decided by the Supreme Court (People vs. Alcaras, 56 Phil. 520,
People vs. Francisco, 56 Phil. 572, People vs. Pastor, 77 Phil. 1000, People vs.
Crisanto Tamayo, 61 Phil. 225), among others, it was held that the repeal of a penal
law without re-enactment extinguishes the right to prosecute or punish the offense
committed under the old law and if the law repealing the prior penal law fails to
penalize the acts which constituted the offense defined and penalized in the repealed
law, the repealed law carries with it the deprivation of the courts of jurisdiction to try,
convict and sentence persons charged with violations of the old law prior to its repeal.
Under the aforecited decisions this doctrine applies to special laws and not only to the
crimes punishable in the Revised Penal Code, such as the Import Control Law. The
Central Bank Circular No. 960 under which the accused Mrs. Marcos is charged is
considered as a penal law because violation thereof is penalized with specific
reference to the provision of Section 34 of Republic Act 265, which penalizes
violations of Central Bank Circular No. 960, produces the effect cited in the Supreme
Court decisions and since according to the decisions that repeal deprives the Court of
jurisdiction, this Court motu proprio dismisses all the eleven (11) cases as a
forestated in the caption, for not to do so opens this Court to charges of trying cases
over which it has no more jurisdiction.
This order was subsequently assailed in a petition for certiorari filed with the Court of Appeals,
entitled "People of the Philippines vs. Hon. Manuel T. Muro, Judge, RTC of Manila, Br. 54 and Imelda
R. Marcos," docketed as CA-G.R. SP No. 29349. When required to file her comment, private
respondent Marcos failed to file any. Likewise, after the appellate court gave due course to the
petition, private respondent was ordered, but again failed despite notice, to file an answer to the
petition and to show cause why no writ of preliminary injunction should issue. Eventually, on April
29, 1993, the Court of Appeals rendered a decision 9 setting aside the order of August 13, 1992, and
reinstating Criminal Cases Nos. 92-101959 to 92-101969.
In finding that respondent judge acted in excess of jurisdiction and with grave abuse of discretion in
issuing the order of dismissal, the appellate court held that:
The order was issued motu proprio, i.e., without any motion to dismiss filed by
counsel for the accused, without giving an opportunity for the prosecution to be
heard, and solely on the basis of newspaper reports announcing that the President has
lifted all foreign exchange restrictions.
The newspaper report is not the publication required by law in order that the
enactment can become effective and binding. Laws take effect after fifteen days
following the completion of their publication in the Official Gazette or in a
newspaper of general circulation unless it is otherwise provided (Section 1, Executive
Order No. 200). The full text of CB Circular 1353, series of 1992, entitled
"Further Liberalizing Foreign Exchange Regulation" was published in the August
27, 1992 issue of the Manila Chronicle, the Philippine Star and the Manila
Bulletin. Per certification of the CB Corporate Affairs Office, CB Circular No.
1353 took effect on September 2 . . . .
Considering that respondent judge admittedly had not seen the official text of CB
Circular No. 1353, he was in no position to rule judiciously on whether CB
Circular No. 960, under which the accused Mrs. Marcos is charged, was already
repealed by CB Circular No. 1353. . . .
xxx xxx xxx
A cursory reading of the . . . provision would have readily shown that the repeal of
the regulations on non-trade foreign exchange transactions is not absolute, as there
is a provision that with respect to violations of former regulations that are the
subject of pending actions or investigations, they shall be governed by the
regulations existing at the time the cause of action (arose). Thus his conclusion
that he has lost jurisdiction over the criminal cases is precipitate and hasty. Had he
awaited the filing of a motion to dismiss by the accused, and given opportunity for
the prosecution to comment/oppose the same, his resolution would have been the
result of deliberation, not speculation.
I. The doctrine of judicial notice rests on the wisdom and discretion of the courts. The power to
take judicial notice is to be exercised by courts with caution; care must be taken that the requisite
notoriety exists; and every reasonable doubt on the subject should be promptly resolved in the
negative. 10
Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be
one of common and general knowledge; (2) it must be well and authoritatively settled and not
doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the
court. 11 The provincial guide in determining what facts may be assumed to be judicially known is
that of notoriety. 12 Hence, it can be said that judicial notice is limited to facts evidenced by public
records and facts of general notoriety. 13
To say that a court will take judicial notice of a fact is merely another way of saying that the usual
form of evidence will be dispensed with if knowledge of the fact can be otherwise acquired. 14
This is because the court assumes that the matter is so notorious that it will not be disputed. 15 But
judicial notice is not judicial knowledge. The mere personal knowledge of the judge is not the
judicial knowledge of the court, and he is not authorized to make his individual knowledge of a
fact, not generally or professionally known, the basis of his action. Judicial cognizance is taken only
of those matters which are "commonly" known. 16
Things of "common knowledge," of which courts take judicial notice, may be matters coming to the
knowledge of men generally in the course of the ordinary experiences of life, or they may be matters
which are generally accepted by mankind as true and are capable of ready and unquestioned
demonstration. 17 Thus, facts which are universally known, and which may be found in
encyclopedias, dictionaries or other publications, are judicially noticed, provided they are of such
universal notoriety and so generally understood that they may be regarded as forming part of the
common knowledge of every person. 18
Respondent judge, in the guise of exercising discretion and on the basis of a mere newspaper account
which is sometimes even referred to as hearsay evidence twice removed, took judicial notice of the
supposed lifting of foreign exchange controls, a matter which was not and cannot be considered of
common knowledge or of general notoriety. Worse, he took cognizance of an administrative regulation
which was not yet in force when the order of dismissal was issued. Jurisprudence dictates that judicial
notice cannot be taken of a statute before it becomes effective. 19 The reason is simple. A law which is
not yet in force and hence, still inexistent, cannot be of common knowledge capable of ready and
unquestionable demonstration, which is one of the requirements before a court can take judicial notice
of a fact.
Evidently, it was impossible for respondent judge, and it was definitely not proper for him, to have
taken cognizance of CB Circular No. 1353, when the same was not yet in force at the time the
improvident order of dismissal was issued.
II. Central Bank Circular No. 1353, which took effect on September 1, 1992, further liberalized the
foreign exchange regulations on receipts and disbursements of residents arising from non-trade and
trade transactions. Section 16 thereof provides for a saving clause, thus:
Sec. 16. Final Provisions of CB Circular No. 1318. - All the provisions in Chapter X
of CB Circular No. 1318 insofar as they are not inconsistent with, or contrary to the
provisions of this Circular, shall remain in full force and effect: Provided, however,
that any regulation on non-trade foreign exchange transactions which has been
repealed, amended or modified by this Circular, violations of which are the subject of
pending actions or investigations, shall not be considered repealed insofar as such
pending actions or investigations are concerned, it being understood that as to such
pending actions or investigations, the regulations existing at the time the cause of
action accrued shall govern.
Respondent judge contends that the saving clause refers only to the provisions of Circular No. 1318,
whereas the eleven criminal cases he dismissed involve a violation of CB Circular No. 960. Hence, he
insists, Circular No. 960 is deemed repealed by the new circular and since the former is not
covered by the saving clause in the latter, there is no more basis for the charges involved in the
criminal cases which therefore warrant a dismissal of the same. The contention is patently
unmeritorious.
Firstly, the second part of the saving clause in Circular No. 1353 explicitly provides that " any
regulation on non-trade foreign transactions which has been repealed, amended or modified by this
Circular, violations of which are the subject of pending actions or investigations, shall not be
considered repealed insofar as such pending actions or investigations are concerned, it being
understood that as to such pending actions or investigations, the regulations existing at the time the
cause of action accrued shall govern." The terms of the circular are clear and unambiguous and
leave no room for interpretation. In the case at bar, the accused in the eleven cases had already
been arraigned, had pleaded not guilty to the charges of violations of Circular No. 960, and said
cases had already been set for trial when Circular No. 1353 took effect. Consequently, the trial
court was and is supposed to proceed with the hearing of the cases in spite of the existence of
Circular No. 1353.
Secondly, had respondent judge only bothered to read a little more carefully the texts of the
circulars involved, he would have readily perceived and known that Circular No. 1318 also
contains a substantially similar saving clause as that found in Circular No. 1353, since Section 111
of the former provides:
Sec. 111. Repealing clause. - All existing provisions of Circulars 365, 960 and
1028, including amendments thereto, with the exception of the second paragraph
of Section 68 of Circular 1028, as well as all other existing Central Bank rules and
regulations or parts thereof, which are inconsistent with or contrary to the
provisions of this Circular, are hereby repealed or modified accordingly: Provided,
however, that regulations, violations of which are the subject of pending actions or
investigations, shall be considered repealed insofar as such pending actions or
investigations are concerned, it being understood that as to such pending actions
or investigations, the regulations existing at the time the cause of action accrued
shall govern.
It unequivocally appears from the section above quoted that although Circular No. 1318 repealed
Circular No. 960, the former specifically excepted from its purview all cases covered by the old
regulations which were then pending at the time of the passage of the new regulations. Thus, any
reference made to Circular No. 1318 necessarily involves and affects Circular No. 960.
III. It has been said that next in importance to the duty of rendering a righteous judgment is that of
doing it in such a manner as will beget no suspicion of the fairness and integrity of the judge. 20
This means that a judge should not only render a just, correct and impartial decision but should do
so in such a manner as to be free from any suspicion as to its fairness and impartiality and as to his
integrity. While a judge should possess proficiency in law in order that he can competently construe
and enforce the law, it is more important that he should act and behave in such a manner that the
parties before him should have confidence in his impartiality. Thus, it is not enough that he decides
cases without bias and favoritism. Nor is it sufficient that he in fact rids himself of prepossessions. His
actuations should moreover inspire that belief. Like Caesar's wife, a judge must not only be pure but
beyond suspicion. 21
Moreover, it has always heretofore been the rule that in disposing of controverted cases, judges should
show their full understanding of the case, avoid the suspicion of arbitrary conclusion, promote
confidence in their intellectual integrity and contribute useful precedents to the growth of the law. 22
A judge should be mindful that his duty is the application of general law to particular instances, that
ours is a government of laws and not of men, and that he violates his duty as a minister of justice
under such a system if he seeks to do what he may personally consider substantial justice in a
particular case and disregards the general law as he knows it to be binding on him. Such action may
have detrimental consequences beyond the immediate controversy. He should administer his office
with due regard to the integrity of the system of the law itself, remembering that he is not a depository
of arbitrary power, but a judge under the sanction of the law. 23 These are immutable principles that
go into the very essence of the task of dispensing justice and we see no reason why they should not be
duly considered in the present case.
The assertion of respondent judge that there was no need to await publication of Circular No. 1353 for
the reason that the public announcement made by the President in several newspapers of general
circulation lifting foreign exchange controls is total, absolute, without qualification, and immediately
effective, is beyond comprehension. As a judge of the Regional Trial Court of Manila, respondent is
supposed to be well-versed in the elementary legal mandates on the publication of laws before they
take effect. It is inconceivable that respondent should insist on an altogether different and illogical
interpretation of an established and well-entrenched rule if only to suit his own personal opinion and,
as it were, to defend his indefensible action. It was not for him to indulge or even to give the
appearance of catering to the at-times human failing of yielding to first impressions. 24 He having
done so, in the face of the foregoing premises, this Court is hard put to believe that he indeed acted in
good faith.
IV. This is not a simple case of a misapplication or erroneous interpretation of the law. The very act of
respondent judge in altogether dismissing sua sponte the eleven criminal cases without even a motion
to quash having been filed by the accused, and without at least giving the prosecution the basic
opportunity to be heard on the matter by way of a written comment or on oral argument, is not only a
blatant denial of elementary due process to the Government but is palpably indicative of bad faith and
partiality.
The avowed desire of respondent judge to speedily dispose of the cases as early as possible is no
license for abuse of judicial power and discretion, 25 nor does such professed objective, even if
true, justify a deprivation of the prosecution's right to be heard and a violation of its right to due
process of
law. 26
The lightning speed, to borrow the words of complainants, with which respondent judge resolved
to dismiss the cases without the benefit of a hearing and without reasonable notice to the
prosecution inevitably opened him to suspicion of having acted out of partiality for the accused.
Regardless of how carefully he may have evaluated changes in the factual situation and legal
standing of the cases, as a result of the newspaper report, the fact remains that he gave the
prosecution no chance whatsoever to show or prove that it had strong evidence of the guilt of the
accused. To repeat, he thereby effectively deprived the prosecution of its right to due process. 27
More importantly, notwithstanding the fact that respondent was not sure of the effects and
implications of the President's announcement, as by his own admission he was in doubt whether or
not he should dismiss the cases, 28 he nonetheless deliberately refrained from requiring the
prosecution to comment thereon. In a puerile defense of his action, respondent judge can but
rhetorically ask: "What explanation could have been given? That the President was talking 'through
his hat' and should not be believed? That I should wait for the publication of a still then non-
existent CB Circular?" The pretended cogency of this ratiocination cannot stand even the minutest
legal scrutiny.
In order that bias may not be imputed to a judge, he should have the patience and circumspection
to give the opposing party a chance to present his evidence even if he thinks that the oppositor's
proofs might not be adequate to overthrow the case for the other party. A display of petulance and
impatience in the conduct of the trial is a norm of conduct which is inconsistent with the "cold
neutrality of an impartial judge." 29 At the very least, respondent judge acted injudiciously and
with unjustified haste in the outright dismissal of the eleven cases, and thereby rendered his
actuation highly dubious.
V. It bears stressing that the questioned order of respondent judge could have seriously and
substantially affected the rights of the prosecution had the accused invoked the defense of double
jeopardy, considering that the dismissal was ordered after arraignment and without the consent of
said accused. This could have spawned legal complications and inevitable delay in the criminal
proceedings, were it not for the holding of the Court of Appeals that respondent judge acted with
grave abuse of discretion amounting to lack of jurisdiction. This saved the day for the People since
in the absence of jurisdiction, double jeopardy will not set in. To stress this point, and as a caveat
to trial courts against falling into the same judicial error, we reiterate what we have heretofore
declared:
 It is settled doctrine that double jeopardy cannot be invoked against this Court's
setting aside of the trial court's judgment of dismissal or acquittal where the
prosecution which represents the sovereign people in criminal cases is denied due
process. . . . .
Where the prosecution is deprived of a fair opportunity to prosecute and prove its
case, its right to due process is thereby violated.
The cardinal precept is that where there is a violation of basic constitutional rights,
courts are ousted of their jurisdiction. Thus, the violation of the State's right to due
process raises a serious jurisdictional issue . . . which cannot be glossed over or
disregarded at will. Where the denial of the fundamental right of due process is
apparent, a decision rendered in disregard of that right is void for lack of jurisdiction .
. . . 30
It is also significant that accused Marcos, despite due notice, never submitted either her comment on
or an answer to the petition for certiorari as required by the Court of Appeals, nor was double
jeopardy invoked in her defense. This serves to further underscore the fact that the order of dismissal
was clearly unjustified and erroneous. Furthermore, considering that the accused is a prominent public
figure with a record of influence and power, it is not easy to allay public skepticism and suspicions on
how said dismissal order came to be, to the consequent although undeserved discredit of the entire
judiciary.
VI. To hold a judge liable for rendering a manifestly unjust order through inexcusable negligence or
ignorance, it must be clearly shown that although he has acted without malice, he failed to observe in
the performance of his duty that diligence, prudence and care which the law is entitled to exact in the
rendering of any public service. Negligence and ignorance are inexcusable if they imply a manifest
injustice which cannot be explained by a reasonable interpretation, and even though there is a
misunderstanding or error of the law applied, it nevertheless results logically and reasonably, and in a
very clear and indisputable manner, in the notorious violation of the legal precept. 31
In the present case, a cursory perusal of the comment filed by respondent judge reveals that no
substantial argument has been advanced in plausible justification of his act. He utterly failed to show
any legal, factual, or even equitable justification for the dismissal of the eleven criminal cases. The
explanation given is no explanation at all. The strained and fallacious submissions therein do not
speak well of respondent and cannot but further depreciate his probity as a judge. On this point, it is
best that pertinent unedited excerpts from his comment 32 be quoted by way of graphic illustration
and emphasis:
On the alleged ignorance of the law imputed to me, it is said that I issued the Order
dismissing the eleven (11) cases against Mrs. Imelda R. Marcos on the basis of
newspaper reports referred to in paragraph 2 of the letter complaint without
awaiting the official publication of the Central Bank Circular. Ordinarily a Central
Bank Circular/Resolution must be published in the Official Gazette or in a
newspaper of general circulation, but the lifting of "all foreign exchange controls"
was announced by the President of the Philippines WITHOUT
QUALIFICATIONS; as published in the Daily Globe, August 11, 1992" the
government has lifted ALL foreign exchange controls," and in the words of the
Philippine Daily Inquirer report of the same date "The government yesterday
LIFTED the LAST remaining restrictions on foreign exchange transactions, . . ."
(emphasis in both quotations supplied) not only the President made the
announcement but also the Central Bank Governor Jose Cuisia joined in the
announcement by saying that "the Monetary Board arrived at the decision after
noting how the "partial liberalization" initiated early this year worked."
Therefore, because of the ABSOLUTE lifting of ALL restrictions on foreign
exchange transactions, there was no need to await the publication of the repealing
circular of the Central Bank. The purpose of requiring publication of laws and
administrative rules affecting the public is to inform the latter as to how they will
conduct their affairs and how they will conform to the laws or the rules. In this
particular case, with the total lifting of the controls, there is no need to await
publication. It would have been different if the circular that in effect repealed
Central Bank Circular No. 960, under which the accused was charged in the cases
dismissed by me, had provided for penalties and/or modified the provisions of
said Circular No. 960.
The Complainants state that the lifting of controls was not yet in force when I
dismissed the cases but it should be noted that in the report of the two (2)
newspapers aforequoted, the President's announcement of the lifting of controls
was stated in the present perfect tense (Globe) or past tense (Inquirer). In other
words, it has already been lifted; the announcement did not say that the
government INTENDS to lift all foreign exchange restrictions but instead says
that the government "has LIFTED all foreign exchange controls," and in the other
newspaper cited above, that "The government yesterday lifted the last remaining
restrictions on foreign exchange transactions". The lifting of the last remaining
exchange regulations effectively cancelled or repealed Circular No. 960.
The President, who is the Chief Executive, publicly announced the lifting of all
foreign exchange regulations. The President has within his control directly or
indirectly the Central Bank of the Philippines, the Secretary of Finance being the
Chairman of the Monetary Board which decides the policies of the Central Bank.
 No official bothered to correct or qualify the President's announcement of August 10,
published the following day, nor made an announcement that the lifting of the
controls do not apply to cases already pending, not until August 17 (the fourth day
after my Order, and the third day after report of said order was published) and after
the President said on August 17, reported in the INQUIRER's issue of August 18,
1992, that the "new foreign exchange rules have nullified government cases against
Imelda R. Marcos, telling reporters that the charges against the widow of former
President Marcos "have become moot and academic" because of new ruling(s) which
allow free flow of currency in and out of the country" (Note, parenthetically, the
reference to "new rules" not to "rules still to be drafted"). The INQUIRER report
continues: "A few hours later, presidential spokeswoman Annabelle Abaya said,
RAMOS (sic) had "corrected himself'." "He had been belatedly advised by the
Central Bank Governor Jose Cuisia and Justice Secretary Franklin Drilon that the
Monetary Board Regulation excluded from its coverage all criminal cases pending in
court and such a position shall stand legal scrutiny', Mrs. Abaya, said."
I will elaborate on two points:
1. If the President was wrong in making the August 10 announcement (published in
August 11, 1992, newspapers) and in the August 17 announcement, SUPRA, and thus
I should have relied on the Presidential announcements, and there is basis to conclude
that the President was at the very least ILL-SERVED by his financial and legal
advisers, because no one bothered to advise the President to correct his
announcements, not until August 17, 1992, a few hours after the President had made
another announcement as to the charges against Imelda Marcos having been rendered
moot and academic. The President has a lot of work to do, and is not, to my
knowledge, a financier, economist, banker or lawyer. It therefore behooved his
subalterns to give him timely (not "belated") advice, and brief him on matters of
immediate and far-reaching concerns (such as the lifting of foreign exchange
controls, designed, among others to encourage the entry of foreign investments).
Instead of rescuing the Chief Executive from embarrassment by assuming
responsibility for errors in the latter's announcement, these advisers have chosen to
toss the blame for the consequence of their failing to me, who only acted on the basis
of announcements of their Chief, which had become of public knowledge.
x x x           x x x          x x x
The Court strongly feels that it has every right to assume and expect that respondent judge is
possessed with more than ordinary credentials and qualifications to merit his appointment as a
presiding judge in the Regional Trial Court of the National Capital Judicial Region, stationed in the
City of Manila itself. It is, accordingly, disheartening and regrettable to note the nature of the
arguments and the kind of logic that respondent judge would want to impose on this Court
notwithstanding the manifest lack of cogency thereof. This calls to mind similar scenarios and how
this Court reacted thereto.
In one case, an RTC Judge was administratively charged for acquitting the accused of a violation
of CB Circular No. 960 despite the fact that the accused was apprehended with US$355,349.00
while boarding a plane for Hongkong, erroneously ruling that the State must first prove criminal
intent to violate the law and benefit from the illegal act, and further ordering the return of
US$3,000.00 out of the total amount seized, on the mistaken interpretation that the CB circular
exempts such amount from seizure. Respondent judge therein was ordered dismissed from the
government service for gross incompetence and ignorance of the law. 33
Subsequently, the Court dismissed another RTC judge, with forfeiture of retirement benefits, for
gross ignorance of the law and for knowingly rendering an unjust order or judgment when he
granted bail to an accused charged with raping an 11-year old girl, despite the contrary
recommendation of the investigating judge, and thereafter granted the motion to dismiss the case
allegedly executed by the complainant. 34
Similarly, an RTC judge who was described by this Court as one "who is ignorant of fairly
elementary and quite familiar legal principles and administrative regulations, has a marked
penchant for applying unorthodox, even strange theories and concepts in the adjudication of
controversies, exhibits indifference to and even disdain for due process and the rule of law, applies
the law whimsically, capriciously and oppressively, and displays bias and impartiality," was
dismissed from the service with forfeiture of all retirement benefits and with prejudice to
reinstatement in any branch of the government or any of its agencies or instrumentalities. 35
Still in another administrative case, an RTJ judge was also dismissed by this Court for gross
ignorance of the law after she ordered, in a probate proceeding, the cancellation of the certificates
of title issued in the name of the complainant, without affording due process to the latter and other
interested parties. 36
Only recently, an RTC judge who had been reinstated in the service was dismissed after he
acquitted all the accused in four criminal cases for illegal possession of firearms, on the ground
that there was no proof of malice or deliberate intent on the part of the accused to violate the law.
The Court found him guilty of gross ignorance of the law, his error of judgment being almost
deliberate and tantamount to knowingly rendering an incorrect and unjust judgment. 37
ACCORDINGLY, on the foregoing premises and considerations, the Court finds respondent Judge
Manuel T. Muro guilty of gross ignorance of the law. He is hereby DISMISSED from the service,
such dismissal to carry with it cancellation of eligibility, forfeiture of leave credits and retirement
benefits, and disqualification from reemployment in the government service. 38
Respondent is hereby ordered to CEASE and DESIST immediately from rendering any judgment or
order, or continuing any judicial action or proceeding whatsoever, effective upon receipt of this
decision.
SO ORDERED.
G.R. No. 96037 October 29, 1992
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PRUDENCIO PUGAL, ANTONIO SORIANO and RICARDO ADDUCA, accused,
PRUDENCIO PUGAL, accused-appellant.
REGALADO, J.:
In an information 1 filed on November 5, 1985 before the Regional Trial Court of Tabuk, Branch 25,
Kalinga-Apayao, herein accused Prudencio Pugal, Antonio Soriano, Ricardo Adduca and one Artemio
Panagan were charged with the crime of "Robbery with Homicide with the Use of Unlicensed
Firearm" under Article 294, paragraph 1, of the Revised Penal Code in relation to Presidential Decree
No. 1866, committed as follows:
That on or about the evening of July 23, 1985 at Riverside, Laya West, Tabuk,
Kalinga-Apayao and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating and mutually aiding one another, with
treachery and evident premeditation, with intent to gain and by the use of force,
violence and intimidation of persons, did then and there willfully, unlawfully, and
feloniously take and carry away the amount of ONE THOUSAND (P1,000.00) Pesos,
Philippine Currency, belonging to the victim and his wife, to their damage and
prejudice in said amount, and by reason and on the occasion of said Robbery, the
accused tied said JACINTO SALAMANCA to a coconut tree and thereafter,
willfully, and feloniously shot Jacinto Salamanca on different parts of his body (and)
said multiple gunshot wounds caused his direct and immediate death.
The crime is aggravated by nocturnity, craft, dwelling, treachery and abuse of
superior strength.
ALL CONTRARY TO LAW.
Pursuant to the order of arrest issued on November 5, 1985, the accused were arrested and
committed to the custody of the Provincial Warden on November 22, 1985.
On December 4, 1985, accused Prudencio Pugal, Antonio Soriano, Ricardo Adduca and Artemio
Panagan, assisted by their defense counsel, Attys. Cesar Purugganan and William F. Claver, were
arraigned and entered a plea of not guilty to the offense charged.
Accused Ricardo Adduca posted his bail bond and was ordered released on October 2, 1986.
However, on the basis of a motion to withdraw by his bondsman, Adduca was re-arrested and
committed to the provincial jail. While detained therein, Adduca escaped. On February 2, 1989, the
trial court issued an order for his arrest but until now he remains at large.
Accused Antonio Soriano was "receipted" for by a certain Roberto Baggay, the Acting Mayor of
Pudtol, Kalinga-Apayao, inexplicably without the approval of or an order from the trial court
authorizing him to do so. Subsequently, said accused also remained at large.
The trial court dismissed the case as against accused Artemio Panagan upon motion of the
prosecution on the basis of an affidavit of desistance of Erlinda Salamanca, wife of the victim,
wherein she stated that the former was not one of those who killed her husband. Trial, however,
proceeded against the herein three accused since they had all been arraigned and the absence of
accused Soriano and Adduca was unjustified.
The record show that on January 11, 1989, accused Prudencio Pugal had been ordered released
from jail after filing his bail bond. However, after the promulgation of the judgment of the trial
court hereunder indicated, said court issued an order on July 17, 1989 cancelling his bail bond and
committing him to the provincial jail where he was accordingly detained. 2
Parenthetically, aside from the above-named accused charged in the information filed by the
Provincial Fiscal of Kalinga-Apayao, Pat. Raymund Caseñas of Pinukpuk, Kalinga-Apayao was
also charged in connection with the said killing of Jacinto Salamanca but the case against him was
forwarded to the military tribunal pursuant to the provisions of Presidential Decree No. 1850, as
amended, 3 and the same is not involved in the present proceeding.
On July 17, 1989, the trial court rendered judgment disposing as follows:
WHEREFORE, judgment is hereby rendered finding the accused PRUDENCIO
PUGAL, RICARDO ADDUCA and ANTONIO SORIANO guilty beyond
reasonable doubt as principals of the crime of ROBBERY WITH HOMICIDE
WITH THE USE OF UNLICENSED FIREARM, defined and penalized under
Article 294, in relation with P.D. 1866, sentencing each of the accused to suffer
the penalty of Reclusion Perpetua, to indemnify jointly and severally the heirs of
the deceased Jacinto Salamanca the amount of Thirty Thousand Pesos
 (P30,000.00) plus Forty Thousand Pesos (P40,000.00) moral and exemplary damages
without subsidiary imprisonment in case of insolvency pursuant to Article 39 of the
Revised Penal Code and to pay the costs.
SO ORDERED. 4
Appellant Prudencio Pugal, the lone accused who appealed to us from said decision, assigns the
following errors allegedly committed by the court a quo:
1. The trial court grievously erred in holding that the killing of the victim was
positively witnessed by prosecution witnesses Hizon and Erlinda Salamanca;
2. The lower court grievously erred in giving full evidentiary weight and credence to
the testimonies of Hizon and Erlinda Salamanca who are biased and whose
testimonies are pregnant with serious and material inconsistencies, improbabilities
and shaky;
3. The lower court erred in finding that appellant Prudencio Pugal was the one who
pulled the deceased from inside the house, brought him outside and tied him to a
coconut tree;
4. The lower court erred in disregarding the plea of alibi by appellant Prudencio
Pugal;
5. The lower court committed grave error in not acquitting Prudencio Pugal on
ground of reasonable doubt. 5
The prosecution presented as witnesses Hizon Salamanca, son of the deceased Jacinto Salamanca;
Erlinda Salamanca, wife of said victim; Dr. Jaime Almora; and Atty. Wayne Odiem, whose collective
testimonies establish the facts of this case as hereunder summarized.
On July 23, 1985, at around 9:00 P.M., Erlinda Salamanca, together with her son Hizon and daughter-
in-law Lolita, was resting inside their house at Laya West, Tabuk, Kalinga-Apayao. Her husband,
Jacinto Salamanca, had just started to eat supper when the dogs started barking and they heard and
recognized the voice of Prudencio Pugal call "Apo" three times. 6 Jacinto, who was followed by
Erlinda, went to the sala and asked, "Who are you?" Somebody answered, "Dakami," meaning "We
are the ones." When Jacinto again called out, "Who are you," the person outside replied, "We are the
ones, we came from Dagupan." Jacinto and Erlinda peeped through the jalousie window and they saw
Prudencio Pugal and Ricardo Adduca standing near the door. The place was then lighted by a 20-watt
flourescent lamp. 7
Erlinda told Jacinto to open the door. Once it was opened, however, Pugal pulled Jacinto out of the
house, and then three masked men rushed inside the house. One of the men who had a long armalite
rifle stood guard at the door, while the other two, one of whom had a short firearm, entered the
house. 8 Adduca, one of the two men who came inside, demanded money and an armalite rifle
from the occupants of the house, and when the latter failed to produce any, Adduca ransacked the
house. 9 Erlinda was thus compelled to give her earnings for the day amounting to P1,000.00 and,
in addition, she gave the ring of her daughter-in-law. They were then ordered and forced to lie on
the floor face down. Subsequently, Erlinda and Hizon heard the clapping of hands from outside the
house. 10 Sensing that nobody was guarding them anymore, Erlinda and Hizon crawled towards
the window. From there, they saw the men drag Jacinto and tie him to a coconut tree with a rope.
Erlinda also saw Pugal slap and kick Jacinto. Then, the man with an armalite rifle pointed his gun
upwards and fired it several times. Afterwards, he moved backward, pointed the gun at Jacinto, and
shot the latter several times. 11
The malefactors thereafter fled towards the north and when they reached the "canto" leading to
Cabaruan, another gunshot was heard. Upon seeing that the culprits were already far away, Erlinda
and Hizon rushed to where Jacinto was, only to find his already lifeless body. Erlinda then sent
Hizon to call for assistance and, in no time, the barangay people and the police arrived at the scene
of the crime. When Jacinto's body was brought to their house, Hizon noticed that his father's false
teeth were missing. Efforts to look for the same at and near the place where Jacinto was killed
proved futile. 12
Two days after Jacinto died, Pugal went to the house of the Salamancas and handed over to Hizon
the missing artificial dentures of Jacinto which he allegedly found near the place where the victim
was killed. Puga stayed in the house of the Salamancas for the entire duration of the wake until the
ninth day of prayer. 13
On July 24, 1985, Dr. Jaime Almora, a resident physician at the Kalinga-Apayao Provincial
Hospital, conducted an autopsy on Jacinto Salamanca and submitted the following —
POSTMORTEM FINDINGS
External Examination = Cadaver fully clothed, flaccid, with no
sign of rigor mortis or lividity or decomposition.
Head = Left side of skull sagging and with multiple fracture due
to multiple gunshot wounds with loss of some brain tissue and
left eye.
Chest = Gunshot wound with point of entry measuring 5mm to
7mm at the 54th ics mid clavicular line directed posteriorly,
medially & horizontally exiting at the (L) mid clavicular line
level of the 8th lcs.
 Extremities = R Thigh = grazing wound directed downward at the
anterior upper third of R thigh.
L Thigh = entry wound at the middle third, medial
aspect of left thigh directed laterally, posteriorly
downward.
Left leg = Entry wound at the antero-medial aspect
of left leg middle third with no point of exit. Copper
Jacket of Bullet recovered.
CAUSE OF DEATH: Multiple gunshot wound(s), head, chest, thigh, and leg. 14
It appears that Erlinda and Hizon Salamanca gave their sworn statements on August 16 15 and
September 8, 1985, 16 respectively, both to Police Sgt. Artemio Catabay in the investigation room of
the Tabuk Police Station at Tabuk, Kalinga-Apayao.
The records further reveal that on September 24, 1985, accused Antonio Soriano, accompanied by
Sgts. Taguiam and Aquino, went to the office of prosecution witness Atty. Wayne Odiem, District
Citizen Attorney of the Citizens Legal Assistance Office, to seek the latter's help in the taking of
Soriano's confession. After having informed Soriano of his constitutional rights to remain silent, to
counsel, and to engage a counsel of his own choice, with the requisite warnings on the possible use of
his statement, Atty. Odiem assisted Soriano while the latter gave his extrajudicial confession 17 to the
police investigators. During the investigation, Soriano, never intimated to him that the former was
coerced and threatened into giving his statement wherein he implicated herein appellant Pugal as one
of the assailants.
As against the straightforward testimonies of the two principal prosecution witnesses, appellant could
only present the defense of alibi cum denial. Pugal stated that on the night of July 23, 1985, he was at
home at Laya West, which is about one and a half kilometers away from the house of the victim, and
that he did not notice any unusual incident that night. 18 On the other hand, the second defense
witness, Lydia Magno, testified that appellant is her uncle, that he and Adduca were part of the
"ronda" which went around the barrio, but nowhere in her testimony did she state anything about the
exact whereabouts of Adduca or appellant on that particular night. 19
I. Appellant Pugal asserts that the trial court erred in relying on the testimonies of Erlinda and Hizon
Salamanca which are allegedly replete with inconsistencies and contradictions.
First, he contends that Hizon testified that the two men who entered the house wore masks, whereas
Erlinda testified that their faces were not covered. This inconsistency, he claims, cannot be considered
trivial.
As correctly observed by the Solicitor General, appellant was obviously confused. Hizon's
testimony was in answer to the question when the robbers were already inside the house, while
Erlinda's was with respect to the first time she saw appellant and his co-accused who were then
calling from outside the house. 20 Thus, Hizon Salamanca stated:
Q Now, Mr. Witness, you said that particular night and time of
July 23, 1985, two (2) men entered your house, were they using
mask?
A Yes, sir. 21
and the testimony of Erlinda Salamanca was as follows:
Q Now, you said you saw Prudencio Pugal and Ricardo Adduca
when you peeped with your husband through the jalous(ie). How
were you able to identify them?
A Because during that night time we used 20 watts flourescent
lamp and so I saw them there, sir.
Q How far were they — this Adduca and Pugal when you saw
them?
A Pugal is near the window and Ricardo Adduca is behind
Prudencio Pugal, sir.
Q Were they in mask?
A No, they were not in mask because we opened it, if they were
using a mask we did (sic, would) not open the door, sir. 22
Furthermore, there could be no inconsistency to speak of precisely because Erlinda likewise
testified that the accused were already wearing masks when they entered the house, in effect
corroborating the testimony of Hizon on this point. Hence, in her direct examination, Erlinda
declared —
Q Can you identify any of the two (2) persons who actually
entered your house?
A I can not identify the other one because he has a very tight
mask but I can identify the other one because he has a loose mask
which when talking he bite (sic) his bonnet with his mouth, sir.
23
which she further clarified in her cross-examination:
 Q Let us go back to the crime when the two persons stood guard to
the door of the house, one allegedly Ricardo Adduca rushed in to
search to (sic) your belonging(s), these three (3) persons were all
masked, is it not Mrs. Salamanca?
A Yes, sir. It was only Pugal who was not masked, sir. 24
The fact that it was only appellant who was not masked was corroborated by Hizon with the same
declaration in court:
Q You said that the incident happened at around 9:00 o'clock in the
night of July 23, 1985, my question is: How could you have
recognized Prudencio Pugal as the one who pulled your father?
A It is because we have twenty (20) watts fluorescent lamp which
energized (sic) by a battery — 12 volts battery.
Q Was Prudencio Pugal masked at that time, Mr. Witness?
A No, sir. 25
Second, appellant theorizes that it is hard to believe that a person who will kill someone who is well
known in the community will not hide his face, this being contrary to human nature and common
experience. Appellant premises this postulation on his presence at the house of the victim during the
wake until the ninth day of prayer, which fact supposedly negated any and all indicia of guilt on his
part.
This, at best, is a mere conjectural pose which cannot stand against the positive identification of the
accused. Appellant's pretended innocence is clearly non sequitur to his decision not to flee. Apart from
the fact that there is no case law holding that non-flight is a conclusive proof of innocence, the
argument does not hold weight in the light of the positive identification of the appellant. The material
factor here is that there is positive identification of the accused as the author or, more accurately, co-
author of the crime. 26
Generally, the decision of an accused not to flee despite an opportunity to do so is hardly characteristic
of a guilty person seeking to escape retribution for his crime. 27 But this is not without exceptions. In
a number of cases, we have had the occasion to rule that the fact that accused did not flee from the
scene of the crime is not a sufficient ground to exculpate them from the proven criminal liability.
Thus, in People vs. Gardon, 28 we held: "That appellant did not flee from the scene of the crime is not
necessarily indicative of a clear conscience. He may have smugly thought that the two men fishing on
the pier would not be able to identify him, or that they would keep "quiet about it" at his behest." In
People vs. Bautista, 29 we further ruled that:
The fact that the appellant joined the search for the victim and that he and a
certain Gabriel Madlangbayan went to Noveleta, Cavite to buy a coffin for the
victim does not disprove his culpability of the offense charged nor strengthen his
claim of innocence. . . .
xxx xxx xxx
. . . The solicitous attitude of appellant was part of his craft to divert attention
from him and appear blameless. Appellant assumed this posture of innocence
despite his awareness that his charged because he was doubly certain that
Francisca, who feared for her life as well as the lives of her relatives, would not
expose him.
Still, in another case, this Court held that:
In some cases of murder, robbery, or even rape where a person is a prime suspect,
his not fleeing may be a badge of innocence. In the present case, however, the
crime was committed with impunity on three occasions by one who thought the
victim would not complain. Under the circumstances of this case, the appellant
would most likely not have been discovered if Josephine did not become
pregnant. The appellant did not have to flee. 30
And, finally, in People vs. Luardo, et al. 31 where the accused, as in the case at bar, likewise
attended the vigil and funeral of the deceased, the Court, did not apply the general rule with this
explanation:
The defense laid stress on the fact that appellants could have escaped, but did not.
On the contrary, both Bedico and Capio attended the vigil and funeral of the
deceased and even helped carry the bier of the latter. . . .
Verily, there is no argument on the fact that flight is indicative of guilty so that it
may be considered in favor of the accused in the case at bar that they did no
escape. Nonetheless, it has also been held by this Court that the fact that the
accused did not take flight but even helped the police to locate the supposed
culprits, is not a sufficient ground to exculpate them from the proved criminal
liability.
Third, appellant asseverates that the failure of Hizon and Erlinda Salamanca to immediately give
their statements to the police (which they gave only after the lapse of 67 days after the incident
took place) affects their credibility.
As a general rule, the failure of a witness to report at once to the police authorities the crime he had
witnessed cannot be taken against him for it is not uncommon for a witness to a crime to show
some reluctance about getting involved in a criminal case. The natural reticence of most people to get A Yes, sir.
involved in a criminal case is of judicial notice, and the fear of eyewitnesses when townmates are
Q They made an investigation of the crime?
involved in the commission of the crime is understandable for they may provoke retaliation from the
accused. The delay, when adequately explained, does not impair the credibility of the witness; neither A Yes, sir.
will it render his testimony biased nor destroy its probative value. 32
Q And they asked you know (sic) the killers, is it not?
In the case at bar, the two principal witnesses for the prosecution gave more than adequate reason for
A Yes, sir.
their initial reluctance in giving their sworn statements to the police, that is, fear for their safety and
their lives. As a matter of fact, after the ninth day of prayer for the deceased, the Salamancas had to Q And you told them you do not know because you were afraid?
leave their house and transfer to another place in apprehension of possible reprisals from the culprits.
A Yes, sir.
When asked why he failed to immediately report and disclose the identity of the suspects, Hizon
Q According to you — you stayed in Tabuk for the whole seven
Salamanca testified:
days that your father was in his wake, is that correct?
Q Now, Mr. Hizon Salamanca, in spite (of) the death of your father,
A Yes, sir.
in spite of the threats of Pugal, and in spite of the fact that you
mauled him before and you know that he is smaller than you are, Q And there were many visitors who came even the Mayor of
you did not report his name to the police — that he was the one who Tabuk came to your house, is that correct?
entered your house and killed your father?
A Yes, sir.
A Yes, sir, because we were afraid, for fear that they might come
Q And they asked you if you know who the killers were?
back for us.
A Yes, sir.
Q You did not even tell that to anyone else — You told it only to
your mother, is that correct? Q But just the same you stick (sic) your belief that you should
not tell them the truth?
A Yes, sir.
A Yes, sir.
Q You did not even tell that to your wife?
COURT:
A I told this to my wife and to my brothers.
Did you not know that if only you told them the identity of the
Q Who were your brothers?
killers of your father, the police could have arrested them and put
A Raymundo and all my brothers, sir. them to jail and for this reason there would be no more danger in
your life?
Q You gave this information to them that Pugal was one of the
murderers immediately after the incident, is that correct? WITNESS:
A No, I did not say it immediately to my brothers because they were Yes, but I am afraid, for fear that they might have still other
studying in Tuguegarao. companions.
Q But immediately after the killing the policemen of Tabuk came to COURT:
Laya West, is that correct?
Proceed.
 Q But when you gave your statements two months and seven days
after the incident, you were no longer afraid?
A No more, sir, because they were already apprehended.
Q It did not occur to you that there are still others at the time and
they could go out after you?
A No more, sir, because they (sic) already there in the jail,
depressed. 33
Fourth, appellant claims that Hizon and Erlinda are biased as witnesses considering that they are
related and very close to the deceased, hence they have the tendency to exaggerate or give false color
to their testimonies.
This Court has repeatedly held that mere relationship of the witnesses to the victim does not render
their clear and positive testimony less worthy of full faith and credit. On the contrary, their natural
interest in securing the conviction of the guilty would deter them from implicating persons other than
the culprits, for otherwise, the latter would thereby gain immunity. 34 Hence, the closeness of their
relationship to the deceased should not, contrary to appellant's view, be deemed erosive of their
credibility as witnesses. That they are the wife and son of the victim does not make them incompetent
as witnesses, nor should it serve to detract from the credit otherwise due them. 35
Besides, there is no iota of evidence to show that the family of the victim was actuated by improper
motives to testify falsely against the accused. It is a jurisprudentially embedded and conceded rule that
the mere fact that the witness is a relative is not a valid or sufficient ground to disregard the former's
testimony nor does it render the same less worthy of credit, in the absence of any ill motive. 36
Furthermore, the prosecution witnesses are not merely relatives of the deceased; they are likewise
victims of the robbery committed by the accused.
II. Appellant's defense hinges primarily on alibi. He claims though that while alibi is the weakest of all
defenses, nevertheless, where the evidence for the prosecution is weak and betrays lack of
concreteness on the question of whether or not the accused committed the crime charged, the defense
of alibi assumes importance.
Time and again we have stressed, virtually to the point of repletion were it not for its pertinency, that
alibi is one of the weakest defenses an accused can invoke 37 because it is easy of fabrication. 38 It
cannot prevail over the positive identification of prosecution witnesses. 39 To be given credence, it
must not only appear that the accused interposing the same was at some other place but also that it was
physically impossible for him to be at the scene of the crime at the time of its commission. 40
In the case at bar, appellant was positively identified by Hizon and Erlinda. The following
observations thereon in appellee's brief accordingly merit our approval:
. . . Appellant was not only seen and recognized through his face, he was
identified also through his voice.
As testified to by both prosecution witnesses, Erlinda and Hizon, appellant was
the one who called "Apo" for three times and also the one who replied "Dakami"
and "Naggapu kami Idiay Dagupan", when asked. (TSN, p. 7 Erlinda S.; TSN, p.
9, testimony of Salamanca). The voice of appellant is familiar to both Erlinda and
Hizon because they have had occasions in the past to talk to him oftenly
considering that appellant is their neighbor and barriomate for more than 20 years.
(TSN, p. 7, Erlinda S.; TSN, p. 8, Hizon S.).
Appellant was also seen and identified by prosecution witnesses as he was not
wearing any mask and neither was his face covered during the time he was calling
from outside the house. (TSN, p. 8, Erlinda S.; TSN, p. 13-16, Hizon S.).
Appellant was recognized by the prosecution witnesses because of the fluorescent
lamp in front of the house energized by a 12-volt battery then illuminating their
house. Besides, the night then was a moonlit night. (TSN, p. 8, Erlinda S.; TSN, p.
13, Hizon S.).
xxx xxx xxx
Worthy to note is the testimony of Erlinda that when she recognized the identity
of the persons calling from the outside, she even told her husband to open the
door. This is but natural and in accord with common observation and human
experience.
Otherwise, if the persons calling were masked as claimed by the defense, the
natural and logical reaction would be to suspect that they were bad elements and
there would be reason not to open the door. . . . 41
The pretension that appellant was allegedly at his house at the time of the incident cannot stand
against the clear and positive identification by the prosecution witnesses. Also, the Solicitor
General correctly concluded that considering the proximity in the distance between the two houses,
it was not physically impossible for appellant to be at the locus criminis and then return to his
house shortly afterwards.
Finally, conspiracy has been sufficiently established in this case. The concerted acts of the accused
began with the deceased Juanito being called by Pugal and Adduca who purposely made
themselves identifiable to facilitate their entry into the house. Once the door was opened, three of
the accused who were already wearing masks entered the house while Pugal pulled Jacinto outside.
Then one of the three who entered the house stood guard at the door while the two others
ransacked the place. Thereafter, upon hearing the clapping of hands from the outside, the three
malefactors immediately left. The deceased was tied to the coconut tree and then shot to death. By
these concerted actions, it is beyond cavil that the accused acted in unison and cooperated with each
other towards the accomplishment of a common criminal design, which was to rob the Salamancas
and thereafter kill Jacinto. The trial court definitely did not err in finding the existence of a conspiracy.
Where conspiracy is shown to exist, the act of one is the act of all. 42 While it has not been
established that it was appellant who actually shot the victim, conspiracy having been found to exist,
he is equally guilty of the crime of robbery with homicide. The rule is whenever homicide has been
committed as a consequence or on the occasion of the robbery, all those who took part as principals in
the robbery will also be held guilty as principals in the robbery will also be held guilty as principals of
the special complex crime of robbery with homicide although they did not actually take part in the
homicide, unless it clearly appears that they endeavored to prevent the homicide. 43 There is nothing
in the records to show that the exception applied in this case.
We, however, reject that portion of the decision of the trial court finding that the liability of the
accused for the crime of robbery with homicide was attended by, and ostensibly should be modified by
the circumstances of, their use of unlicensed firearms. No evidence was presented to show, and even
the trial court made no finding, that the firearms used by herein accused were unlicensed. In addition,
the indemnity for which the accused is liable for the death of Jacinto Salamanca should be increased to
P50,000.00 in accordance with the policy adopted by the Court en banc on August 30, 1990. 44
WHEREFORE, subject to the above-stated modifications, the judgment of the court a quo is hereby
AFFIRMED in all other respects.
SO ORDERED.
[G.R. No. L-62324. December 29, 1983.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. CARMELITO LINTAG, Defendant-
Appellant.
The Solicitor General for Plaintiff-Appellee.
Nestor L. Torio, Jr., for Defendant-Appellant.
SYLLABUS
1. CRIMINAL LAW; RAPE; GUILT PROVEN BEYOND REASONABLE DOUBT; ACCUSED’S
SALES TALK ABOUT "TRIPS" FACILITATED COMMISSION OF THE CRIME. — We hold that
his guilt was proven beyond reasonable doubt. The fact is that Estella knew nothing about Ornacol. It
was Lintag’s sales talk about "trips" which inveigled her into asking him to buy Ornacol. His
culpability is sanctioned by the doctrine that "el que es causa de la causa es causa del mal causado"
(he who is the cause of the cause is the cause of the evil caused) (I Cuello Calon, Derecho penal,
15th Ed., 1975, p. 343; People v. Ural, L-30801, March 27, 1974, 56 SCRA 138).
2. ID.; ID.; SEXUAL CONGRESS WITH A CONSCIOUS WOMAN WHOSE RESISTANCE IS
TAKEN AWAY BY ADMINISTERING DRUGS, CONSTITUTES RAPE; CASE AT BAR. — The
rule is that "if the ability to resist is taken away by administering drugs, even though the woman
may be conscious, sexual intercourse with her is rape’’ (33 Cyc. 1426-1427 cited in Hirdes v.
Ottawa Circuit Judge, 146 N.W. 646). What the accused did in this case was to employ a subtle or
sophisticated form of overcoming the resistance of the victim by the use of Ornacol capsules. He
was able to consummate his felonious objective, considering that the victim was a mere teenager
and considering the propensity of the present youth to succumb to drug addiction and to indulge in
practices which their parents consider immoral or unconventional.
DECISION
AQUINO, J.:
There is no dispute that at around six o’clock in the evening of April 17, 1978 Carmelito Lintag,
19, a jeepney driver, residing at Bago Bantay, Quezon City (he finished first year high school), had
sexual congress with Estella Redoble, 15 (born on January 30, 1963), a resident of 19 Maryland
Street, Cubao, on a bamboo bed (papag) in a shack in the squatter’s area near Kamias Street and
the Nepa-Q-Mart, Quezon City (Exh. C and D).
Before the carnal intercourse, Estella took ten Ornacol capsules. Judicial notice may be taken of
the fact that Ornacol is a medical preparation against cough and colds with its antitussive and
decongestant components: destromethorphan hydrobromide and phenylpropanolamine HCl. Taken
in the prescribed dose of one to two capsules every twelve hours, it is not dangerous.
But, as observed by Doctor Carmen Concepcion-Valero, the chief of the medical clinic of this
Court, an overdose is dangerous because of its sedative action: it causes drowsiness. (See Pims
1983 Edition, page 81). Lintag admits that about half an hour after taking the ten tablets Estella
was feeling dizzy and she wanted to sleep (4 tsn May 20, 1981).
His story is that he met Estella on March 17, 1978. She became his sweetheart. On April 17, 1978,
he happened to meet her in the Bernardo Park near the Nepa-Q-Mart. He invited her to take a stroll
inside the market. Then, they went to the Mercury Drugstore nearby and she asked him to buy ten
Ornacol capsules with her money. She used the ten capsules.
They went to a restaurant but as she felt dizzy he took her to the house of a friend in the squatter’s
area. His friend left them alone in the house. They had sexual intercourse there with her consent.
(In his statement, Exhibit D, dated April 21, 1978, he said that he met Estella for the first time on
April 17, 1978, not a month earlier).chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph
 We hold that his guilt was proven beyond reasonable doubt. The fact is that Estella knew nothing
On the other hand, Estella (who finished first year high school) testified that at about two o’clock in about Ornacol. It was Lintag’s sales talk about "trips" which inveigled her into asking him to buy
the afternoon of April 17, 1978, while she was at the Bernardo Park near Quezon City Hall, she was Ornacol. His culpability is sanctioned by the doctrine that "el que es causa de la causa es causa del
approached by Lintag who informed her that her friend and former classmate in Grade six nicknamed mal causado" (he who is the cause of the cause is the cause of the evil caused) (1 Cuello Calon,
Baby was looking for her near the jukebox at K-10 Street. Derecho Penal, 15th Ed., 1975, p. 343; People v. Ural, L-30801, March 27, 1974, 56 SCRA 138).

Estella went with Lintag, whom she had seen before at the Nepa-Q-Mart, although she did not know Appellant testified that Estella allegedly visited him in jail three or four times and they also had
his name, to look for Baby. They did not find Baby. Lintag suggested that they take a walk. They went sexual intercourse in that public place. No credence was given by the trial court to that claim.
to the vicinity of Mercury Drugstore near the Nepa-Q-Mart at Epifanio de los Santos Avenue. Later,
they returned to K-10 Street but as Baby was not yet there, they played the jukebox until six o’clock in He also anchors his defense on certain handwritten documents. One is an unsworn certification
the afternoon. They talked about drugs and the "trips" caused by taking the same.chanrobles law dated April 26, 1978 (two days after she filed the complaint) wherein she states that she left her
library : red residence and was residing with her friend, Remedios Ocido (who also signed the certification), at
Project 2 (Exh. J). Remedios is the common-law wife of Boy Lintag, the accused’s brother.
Lintag bought Ornacol capsules at the Mercury Drugstore. He asked Estella to take them but she
refused. Lintag assured her that nothing would happen to her by taking the tablets and that she could Another letter, dated May 13, 1978, addressed to "Mahal Kong Lito" in jail was about their aborted
make her "trip" while listening to the music from the jukebox. She relented and Lintag forced her to marriage (Exh. G). Another very long letter dated "Friday 30, 1978," is addressed to "Nanay Lina
open her mouth and placed ten Ornacol capsules therein, five at a time. at Tatay Gani" (Exh H). Another three-page letter dated June 4, 1978 recounts the circumstances
surrounding her sexual intercourse with Lintag on April 27, 1978 (Exh. I to I-2).cralawnad
Sometime later, Estella became dizzy and weak (4 tsn April 25, 1979). Lintag placed her in a jeep and
took her to a shack in the squatter’s area near the Nepa-Q-Mart. The persons in that house left when Estella testified that she was forced to write those letters after she was kidnapped by Boy Lintag,
they arrived. Lintag undressed her and placed her on a bamboo bed (papag). the brother of the accused. She was brought to Lintag’s house in Bago Bantay, then to the house of
a certain Colonel Lintag in Scout Magbanua Street, and then to the house of Boy Lintag and his
As she was feeling weak, she was not able to offer any resistance. In that condition, Lintag had sexual common-law wife in Pasig, Rizal from which she later escaped. She was kidnapped in the
congress with her. The carnal intercourse caused her much pain. ("Naramdaman ko ang sakit at ang afternoon of April 24 and was able to escape on June 15, 1978 (7-8 tsn April 25, 1979).
hapdi ng ipasok ni Lito ang kanyang ari vs akin").
She declared that she wrote Exhibit G by copying the original prepared by Colonel Lintag. Exhibit
She dressed up and returned to the parked jeep. At this juncture, her parents arrived in a taxi. Lintag H, addressed to the parents of the accused, was copied from the letter prepared by the accused’s
fled from the scene. That same evening, she and her mother reported the outrage to Detective Vicente father, Tatay Gani, in the house of Colonel Lintag. She did not write the name "Stella" at the end of
Madero of the Quezon City Police. Her statement was not taken then because she was in a state of the said letter.
shock. It was taken three days later (Exh B).
In his house, Colonel Lintag also told Estella to copy the letter, Exhibit I, so that she could be set
The medical examination showed her "hymen with old lacerations at 5, 6, 9 and 11 o’clock positions." free (11 tsn April 25, 1979). No probative value can be assigned to the said letters. They only
Her vagina admits two fingers with ease. Her mons veneris had scanty pubic hair (Exh. A). strengthen the evidence proving the guilt of the accused.

Estella filed a complaint for rape against Lintag a week after the incident (Exh. F). After trial, the Lintag was charged with having caused Estella to take ten capsules of Ornacol, thus making her
Court of First Instance of Rizal, Quezon City Branch V, convicted him of rape, sentenced him to dizzy and dazed, and thereafter he had sexual intercourse with her against her will.
reclusion perpetua and ordered him to indemnify the offended party and her parents in the sum of
P31,000 as damages (Criminal Case No. Q-9435). He appealed to this Court. The rule is that "if the ability to resist is taken away by administering drugs, even though the
woman may be conscious, sexual intercourse with her is rape" (33 Cyc. 1426-1427 cited in Hirdes
He contends that the trial court erred in not finding that the case for the prosecution is utterly v. Ottawa Circuit Judge, 146 N.W. 646).
unfounded and in finding that he made Estella take ten Ornacol capsules which caused her to lose all
power to resist his advances. He calls attention to Estella’s admission in her statement to the police "If the woman’s will is affected by the anesthetic so that the connection is had without her consent,
that she became interested in Ornacol and she gave Lintag the money to purchase it (Exh. B). though she may be more or less conscious, the act will be rape" (3 Wharton and Steele on Medical
Jurisprudence, 4th Ed., sec. 597, cited in State v. Still, 202 N.W. 479, 480).
 LUIS SISON, Petitioner,
In the Still case, the defendant, a physician, administered an injection containing 1-50 grain vs.
strychnine, 1-30 grain digitalin and 1-8 grain morphine to the victim to put her to sleep. When she PHILIPPINE NATIONAL CONSTRUCTION CORPORATION and RADSTOCK
awoke and was drowsy, dizzy and physically weak, the defendant had sexual intercourse with her
SECURITIES LIMITED, Respondents.
although she resisted by the use of the muscles of her abdomen and legs and by pulling his hair and
crying out. He was held guilty of rape. DECISION

In People v. Ing, 422 Pac. 2nd 590, defendant doctor gave a seventeen-year-old girl, who wanted an
abortion, a shot that caused her to pass out. Upon awakening, and as she was feeling dizzy, light-
headed and "high", the doctor had sexual intercourse with her. He did this three times. It was held that
the defendant was guilty of rape because the intoxicating narcotic or anesthetic substance administered
to the victim prevented her from resisting his sexual advances.chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph
In Rhine vs, State, 337 Pac. 913, the defendant, a licensed physician, administered intravenous
injections of nembutal or sodium pentobarbital to a married woman who became momentarily
unconscious. When she woke up, the physician got in bed with her and they had sexual intercourse
The woman was conscious of all that went on but she had no power of resistance as she was both
scared and paralyzed. The court upheld the jury’s verdict of guilty because the injection of narcotic
and anesthetic agent left the woman dazed and without power of resistance.
CARPIO, J.:
Prologue
This case is an anatomy of a ₱6.185 billion 1 pillage of the public coffers that ranks among one of
the most brazen and hideous in the history of this country. This case answers the questions why our
Government perennially runs out of funds to provide basic services to our people, why the great
masses of the Filipino people wallow in poverty, and why a very select few amass unimaginable
wealth at the expense of the Filipino people.
On 1 May 2007, the 30-year old franchise of Philippine National Construction Corporation
(PNCC) under Presidential Decree No. 1113 (PD 1113), as amended by Presidential Decree No.
1894 (PD 1894), expired. During the 13th Congress, PNCC sought to extend its franchise. PNCC

What the accused did in this case was to employ a subtle or sophisticated form of overcoming the won approval from the House of Representatives, which passed House Bill No. 5749 2 renewing
resistance of the victim by the use of Ornacol capsules. He was able to consummate his felonious PNCC’s franchise for another 25 years. However, PNCC failed to secure approval from the Senate,
objective, considering that the victim was a mere teenager and considering the propensity of the dooming the extension of PNCC’s franchise. Led by Senator Franklin M. Drilon, the Senate
present youth to succumb to drug addiction and to indulge in practices which their parents consider
opposed PNCC’s plea for extension of its franchise. 3 Senator Drilon’s privilege speech 4 explains
immoral or unconventional.
why the Senate chose not to renew PNCC’s franchise:
WHEREFORE, the lower court’s judgment is affirmed. Costs de oficio. I repeat, Mr. President. PNCC has agreed in a compromise agreement dated 17 August 2006 to
transfer to Radstock Securities Limited ₱17,676,063,922, no small money, Mr. President, my dear
SO ORDERED.
colleagues, ₱17.6 billion.

G.R. No. 178158               December 4, 2009 What does it consist of? It consists of the following: 19 pieces of real estate properties with an
appraised value of ₱5,993,689,000. Do we know what is the bulk of this? An almost 13-hectare
STRATEGIC ALLIANCE DEVELOPMENT CORPORATION, Petitioner, property right here in the Financial Center. As we leave the Senate, as we go out of this Hall, as we
vs. drive thru past the GSIS, we will see on the right a vacant lot, that is PNCC property. As we turn
RADSTOCK SECURITIES LIMITED and PHILIPPINE NATIONAL CONSTRUCTION right on Diosdado Macapagal, we see on our right new buildings, these are all PNCC properties.
CORPORATION, Respondents. That is 12.9 hectares of valuable asset right in this Financial Center that is worth ₱5,993,689.000.
ASIAVEST MERCHANT BANKERS BERHAD, Intervenor.
What else, Mr. President? The 20% of the outstanding capital stock of PNCC with a par value of
x - - - - - - - - - - - - - - - - - - - - - - -x ₱2,300,000,000-- I repeat, 20% of the outstanding capital stock of PNCC worth ₱2,300 billion--
G.R. No. 180428 was assigned to Radstock.
In addition, Mr. President and my dear colleagues, please hold on to your seats because part of the
agreement is 50% of PNCC’s 6% share in the gross toll revenue of the Manila North Tollways
Corporation for 27 years, from 2008 to 2035, is being assigned to Radstock. How much is this worth?
It is worth ₱9,382,374,922. I repeat, ₱9,382,374,922.
xxxx
Mr. President, ₱17,676,000,000, however, was made to appear in the agreement to be only worth
₱6,196,156,488. How was this achieved? How was an aggregate amount of ₱17,676,000,000 made to
appear to be only ₱6,196,156,488? First, the 19 pieces of real estate worth ₱5,993,689,000 were only
assigned a value of ₱4,195,000,000 or only 70% of their appraised value.
Second, the PNCC shares of stock with a par value of ₱2.3 billion were marked to market and
therefore were valued only at ₱713 million.
Third, the share of the toll revenue assigned was given a net present value of only ₱1,287,000,000
because of a 15% discounted rate that was applied.
In other words, Mr. President, the toll collection of ₱9,382,374,922 for 27 years was given a net
present value of only ₱1,287,000,000 so that it is made to appear that the compromise agreement is
only worth ₱6,196,000,000.
Mr. President, my dear colleagues, this agreement will substantially wipe out all the assets of PNCC.
It will be left with nothing else except, probably, the collection for the next 25 years or so from the
North Luzon Expressway. This agreement brought PNCC to the cleaners and literally cleaned the
PNCC of all its assets. They brought PNCC to the cleaners and cleaned it to the tune of
₱17,676,000,000.
xxxx
Mr. President, are we not entitled, as members of the Committee, to know who is Radstock Securities
Limited?
Radstock Securities Limited was allegedly incorporated under the laws of the British Virgin Islands. It
has no known board of directors, except for its recently appointed attorney-in-fact, Mr. Carlos
Dominguez.
Mr. President, are the members of the Committee not entitled to know why 20 years after the account
to Marubeni Corporation, which gave rise to the compromise agreement 20 years after the obligation
was allegedly incurred, PNCC suddenly recognized this obligation in its books when in fact this
obligation was not found in its books for 20 years?
In other words, Mr. President, for 20 years, the financial statements of PNCC did not show any
obligation to Marubeni, much less, to Radstock. Why suddenly on October 20, 2000, ₱10 billion in
obligation was recognized? Why was it recognized?
During the hearing on December 18, Mr. President, we asked this question to the Asset
Privatization Trust (APT) trustee, Atty. Raymundo Francisco, and he was asked: "What is the basis
of your recommendation to recognize this?" He said: "I based my recommendation on a legal
opinion of Feria and Feria." I asked him: "Who knew of this opinion?" He said: "Only me and the
chairman of PNCC, Atty. Renato Valdecantos." I asked him: "Did you share this opinion with the
members of the board who recognized the obligation of ₱10 billion?" He said: "No." "Can you
produce this opinion now?" He said: "I have no copy."
Mysteriously, Mr. President, an obligation of ₱10 billion based on a legal opinion which, even Mr.
Arthur Aguilar, the chairman of PNCC, is not aware of, none of the members of the PNCC board
on October 20, 2000 who recognized this obligation had seen this opinion. It is mysterious.
Mr. President, are the members of our Committee not entitled to know why Radstock Securities
Limited is given preference over all other creditors notwithstanding the fact that this is an
unsecured obligation? There is no mortgage to secure this obligation.
More importantly, Mr. President, equally recognized is the obligation of PNCC to the Philippine
government to the tune of ₱36 billion. PNCC owes the Philippine government ₱36 billion
recognized in its books, apart from ₱3 billion in taxes. Why in the face of all of these is Radstock
given preference? Why is it that Radstock is given preference to claim ₱17.676 billion of the assets
of PNCC and give it superior status over the claim of the Philippine government, of the Filipino
people to the extent of ₱36 billion and taxes in the amount of P3 billion? Why, Mr. President? Why
is Radstock given preference not only over the Philippine government claims of ₱39 billion but
also over other creditors including a certain best merchant banker in Asia, which has already a final
and executory judgment against PNCC for about ₱300 million? Why, Mr. President? Are we not
entitled to know why the compromise agreement assigned ₱17.676 billion to Radstock? Why was
it executed?5 (Emphasis supplied)
Aside from Senator Drilon, Senator Sergio S. Osmeña III also saw irregularities in the transactions
involving the Marubeni loans, thus:
SEN. OSMEÑA. Ah okay. Good.
Now, I'd like to point out to the Committee that – it seems that this was a politically driven deal
like IMPSA. Because the acceptance of the 10 billion or 13 billion debt came in October 2000 and
the Radstock assignment was January 10, 2001. Now, why would Marubeni sell for $2 million
three months after there was a recognition that it was owed ₱10 billion. Can you explain that, Mr.
Dominguez?
MR. DOMINGUEZ. Your Honor, I am not aware of the decision making process of Marubeni. But my
understanding was, the Japanese culture is not a litigious one and they didn't want to get into a, you
know, a court situation here in the Philippines having a lot of other interest, et cetera.
SEN. OSMEÑA. Well, but that is beside the point, Mr. Dominguez. All I am asking is does it stand to
reason that after you get an acceptance by a debtor that he owes you 10 billion, you sell your note for
100 million.
Now, if that had happened a year before, maybe I would have understood why he sold for such a low
amount. But right after, it seems that this was part of an orchestrated deal wherein with certain
powerful interest would be able to say, "Yes, we will push through. We'll fix the courts. We'll fix the
board. We'll fix the APT. And we will be able to do it, just give us 55 percent of whatever is
recovered," am I correct?
Radstock and say, "Here’s $4 million. Here’s P200 million. Okay." They would have walked away.
But evidently, the "ninongs" of Radstock – See, I don’t care who owns Radstock. I want to know
who is the ninong here who stands to make a lot of money by being able to get to courts, the
government agencies, OGCC, or whoever else has been involved in this, to agree to 6 billion or
whatever it was. That’s a lot of money. And believe me, Radstock will probably get one or two
billion and four billion will go into somebody else’s pocket. Or Radstock will turn around, sell that
claim for ₱4 billion and let the new guy just collect the payments over the years.
x x x x7
SEN. OSMEÑA. x x x I just wanted to know is CDCP Mining a 100 percent subsidiary of PNCC?
MR. AGUILAR. Hindi ho. Ah, no.

MR. DOMINGUEZ. As I said, Your Honor, I am not familiar with the decision making process of SEN. OSMEÑA. If they’re not a 100 percent, why would they sign jointly and severally? I just
Marubeni. But my understanding was, as I said, they didn't want to get into a … want to plug the loopholes.

SEN. OSMEÑA. All right. MR. AGUILAR. I think it was – if I may just speculate. It was just common ownership at that
time.
MR. DOMINGUEZ. ...litigious situation.6
SEN. OSMEÑA. Al right. Now – Also, the ...
xxxx
MR. AGUILAR. Ah, 13 percent daw, Your Honor.
SEN. OSMEÑA. All of these financial things can be arranged. They can hire a local bank, Filipino, to
SEN. OSMEÑA. Huh?
be trustee for the real estate. So ...
MR. AGUILAR. Thirteen percent ho.
SEN. DRILON. Well, then, that’s a dummy relationship.
SEN. OSMEÑA. What’s 13 percent?
SEN. OSMEÑA. In any case, to me the main point here is that a third party, Radstock, whoever owns
it, bought Marubeni’s right for $2 million or ₱100 million. Then, they are able to go through all these MR. AGUILAR. We owned ...
legal machinations and get awarded with the consent of PNCC of 6 billion. That’s a 100 million to 6
xxxx
billion. Now, Mr. Aguilar, you have been in the business for such a long time. I mean, this hedge funds
whether it’s Radstock or New Bridge or Texas Pacific Group or Carlyle or Avenue Capital, they look SEN. OSMEÑA. x x x CDCP Mining, how many percent of the equity of CDCP Mining was
at their returns. So if Avenue Capital buys something for $2 million and you give him $4 million in owned by PNCC, formerly CDCP?
one year, it’s a 100 percent return. They’ll walk away and dance to their stockholders. So here in this
MS. PASETES. Thirteen percent.
particular case, if you know that Radstock only bought it for $2 million, I would have gotten board
approval and say, "Okay, let’s settle this for $4 million." And Radstock would have jumped up and SEN. OSMEÑA. Thirteen. And as a 13 percent owner, they agreed to sign jointly and severally?
down. So what looks to me is that this was already a scheme. Marubeni wrote it off already. Marubeni
MS. PASETES. Yes.
wrote everything off. They just got a $2 million and they probably have no more residual rights or
maybe there’s a clause there, a secret clause, that says, "I want 20 percent of whatever you’re able to SEN. OSMEÑA. One-three? So poor PNCC and CDCP got taken to the cleaners here. They sign
eventually collect." So $2 million. But whatever it is, Marubeni practically wrote it off. Radstock’s for a 100 percent and they only own 13 percent.
liability now or exposure is only $2 million plus all the lawyer fees, under-the-table, etcetera. All right.
Okay. So it’s pretty obvious to me that if anybody were using his brain, I would have gone up to x x x x8 (Emphasis supplied)
 I.
The Case
Before this Court are the consolidated petitions for review 9 filed by Strategic Alliance Development
Corporation (STRADEC) and Luis Sison (Sison), with a motion for intervention filed by Asiavest
Merchant Bankers Berhad (Asiavest), challenging the validity of the Compromise Agreement between
PNCC and Radstock. The Court of Appeals approved the Compromise Agreement in its Decision of
25 January 200710 in CA-G.R. CV No. 87971.
II.
The Antecedents
PNCC was incorporated in 1966 for a term of fifty years under the Corporation Code with the name
Construction Development Corporation of the Philippines (CDCP). 11 PD 1113, issued on 31 March
1977, granted CDCP a 30-year franchise to construct, operate and maintain toll facilities in the North
and South Luzon Tollways. PD 1894, issued on 22 December 1983, amended PD 1113 to include in
CDCP’s franchise the Metro Manila Expressway, which would "serve as an additional artery in the
transportation of trade and commerce in the Metro Manila area."
Sometime between 1978 and 1981, Basay Mining Corporation (Basay Mining), an affiliate of CDCP,
obtained loans from Marubeni Corporation of Japan (Marubeni) amounting to 5,460,000,000 yen and
US$5 million. A CDCP official issued letters of guarantee for the loans, committing CDCP to pay
solidarily for the full amount of the 5,460,000,000 yen loan and to the extent of ₱20 million for the
US$5 million loan. However, there was no CDCP Board Resolution authorizing the issuance of the
letters of guarantee. Later, Basay Mining changed its name to CDCP Mining Corporation (CDCP
Mining). CDCP Mining secured the Marubeni loans when CDCP and CDCP Mining were still
privately owned and managed.
Subsequently in 1983, CDCP changed its corporate name to PNCC to reflect the extent of the
Government's equity investment in the company, which arose when government financial institutions
converted their loans to PNCC into equity following PNCC’s inability to pay the loans. 12 Various
government financial institutions held a total of seventy-seven point forty-eight percent (77.48%) of
PNCC’s voting equity, most of which were later transferred to the Asset Privatization Trust (APT)
under Administrative Orders No. 14 and 64, series of 1987 and 1988, respectively. 13 Also, the
Presidential Commission on Good Government holds some 13.82% of PNCC’s voting equity under a
writ of sequestration and through the voluntary surrender of certain PNCC shares. In fine, the
Government owns 90.3% of the equity of PNCC and only 9.70% of PNCC’s voting equity is under
private ownership.14
Meanwhile, the Marubeni loans to CDCP Mining remained unpaid. On 20 October 2000, during
the short-lived Estrada Administration, the PNCC Board of Directors 15 (PNCC Board) passed
Board Resolution No. BD-092-2000 admitting PNCC’s liability to Marubeni for ₱10,743,103,388
as of 30 September 1999. PNCC Board Resolution No. BD-092-2000 reads as follows:
RESOLUTION NO. BD-092-2000
RESOLVED, That the Board recognizes, acknowledges and confirms PNCC’s
obligations as of September 30, 1999 with the following entities, exclusive of the
interests and other charges that may subsequently accrue and still become due
therein, to wit:
a). the Government of the Republic of the Philippines in the amount of
₱36,023,784,751.00; and
b). Marubeni Corporation in the amount of ₱10,743,103,388.00. (Emphasis
supplied)
This was the first PNCC Board Resolution admitting PNCC’s liability for the Marubeni loans.
Previously, for two decades the PNCC Board consistently refused to admit any liability for the
Marubeni loans.
Less than two months later, or on 22 November 2000, the PNCC Board passed Board Resolution
No. BD-099-2000 amending Board Resolution No. BD-092-2000. PNCC Board Resolution No.
BD-099-2000 reads as follows:
RESOLUTION NO. BD-099-2000
RESOLVED, That the Board hereby amends its Resolution No. BD-092-2000 dated
October 20, 2000 so as to read as follows:
RESOLVED, That the Board recognizes, acknowledges and confirms its obligations
as of September 30, 1999 with the following entities, exclusive of the interests and
other charges that may subsequently accrue and still due thereon, subject to the final
determination by the Commission on Audit (COA) of the amount of obligation
involved, and subject further to the declaration of the legality of said obligations by
the Office of the Government Corporate Counsel (OGCC), to wit:
a). the Government of the Republic of the Philippines in the amount of
₱36,023,784,751.00; and
 b). Marubeni Corporation in the amount of ₱10,743,103,388.00. (Emphasis
supplied)
In January 2001, barely three months after the PNCC Board first admitted liability for the Marubeni
loans, Marubeni assigned its entire credit to Radstock for US$2 million or less than ₱100 million. In
short, Radstock paid Marubeni less than 10% of the ₱10.743 billion admitted amount. Radstock
immediately sent a notice and demand letter to PNCC.
On 15 January 2001, Radstock filed an action for collection and damages against PNCC before the
Regional Trial Court of Mandaluyong City, Branch 213 (trial court). In its order of 23 January 2001,
the trial court issued a writ of preliminary attachment against PNCC. The trial court ordered PNCC’s
bank accounts garnished and several of its real properties attached. On 14 February 2001, PNCC
moved to set aside the 23 January 2001 Order and to discharge the writ of attachment. PNCC also
filed a motion to dismiss the case. The trial court denied both motions. PNCC filed motions for
reconsideration, which the trial court also denied. PNCC filed a petition for certiorari before the Court
of Appeals, docketed as CA-G.R. SP No. 66654, assailing the denial of the motion to dismiss. On 30
August 2002, the Court of Appeals denied PNCC’s petition. PNCC filed a motion for reconsideration,
which the Court of Appeals also denied in its 22 January 2003 Resolution. PNCC filed a petition for
review before this Court, docketed as G.R. No. 156887.
Meanwhile, on 19 June 2001, at the start of the Arroyo Administration, the PNCC Board, under a new
President and Chairman, revoked Board Resolution No. BD-099-2000.
The trial court continued to hear the main case. On 10 December 2002, the trial court ruled in favor of
Radstock, as follows:
WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and the
defendant is directed to pay the total amount of Thirteen Billion One Hundred Fifty One Million Nine
Hundred Fifty Six thousand Five Hundred Twenty Eight Pesos (₱13,151,956,528.00) with interest
from October 15, 2001 plus Ten Million Pesos (₱10,000,000.00) as attorney’s fees.
SO ORDERED.16
PNCC appealed the trial court’s decision to the Court of Appeals, docketed as CA-G.R. CV No.
87971.
On 19 March 2003, this Court issued a temporary restraining order in G.R. No. 156887 forbidding the
trial court from implementing the writ of preliminary attachment and ordering the suspension of the
proceedings before the trial court and the Court of Appeals. In its 3 October 2005 Decision, this Court
ruled as follows:
WHEREFORE, the petition is partly GRANTED and insofar as the Motion to Set Aside the Order
and/or Discharge the Writ of Attachment is concerned, the Decision of the Court of Appeals on
August 30, 2002 and its Resolution of January 22, 2003 in CA-G.R. SP No. 66654 are
REVERSED and SET ASIDE. The attachments over the properties by the writ of preliminary
attachment are hereby ordered LIFTED effective upon the finality of this Decision. The Decision
and Resolution of the Court of Appeals are AFFIRMED in all other respects. The Temporary
Restraining Order is DISSOLVED immediately and the Court of Appeals is directed to PROCEED
forthwith with the appeal filed by PNCC.
No costs.
SO ORDERED.17
On 17 August 2006, PNCC and Radstock entered into the Compromise Agreement where they
agreed to reduce PNCC’s liability to Radstock, supposedly from ₱17,040,843,968, to
₱6,185,000,000. PNCC and Radstock submitted the Compromise Agreement to this Court for
approval. In a Resolution dated 4 December 2006 in G.R. No. 156887, this Court referred the
Compromise Agreement to the Commission on Audit (COA) for comment. The COA
recommended approval of the Compromise Agreement. In a Resolution dated 22 November 2006,
this Court noted the Compromise Agreement and referred it to the Court of Appeals in CA-G.R.
CV No. 87971. In its 25 January 2007 Decision, the Court of Appeals approved the Compromise
Agreement.
STRADEC moved for reconsideration of the 25 January 2007 Decision. STRADEC alleged that it
has a claim against PNCC as a bidder of the National Government’s shares, receivables, securities
and interests in PNCC. The matter is subject of a complaint filed by STRADEC against PNCC and
the Privatization and Management Office (PMO) for the issuance of a Notice of Award of Sale to
Dong-A Consortium of which STRADEC is a partner. The case, docketed as Civil Case No. 05-
882, is pending before the Regional Trial Court of Makati, Branch 146 (RTC Branch 146).
The Court of Appeals treated STRADEC’s motion for reconsideration as a motion for intervention
and denied it in its 31 May 2007 Resolution. STRADEC filed a petition for review before this
Court, docketed as G.R. No. 178158.
Rodolfo Cuenca (Cuenca), a stockholder and former PNCC President and Board Chairman, filed
an intervention before the Court of Appeals. Cuenca alleged that PNCC had no obligation to pay
Radstock. The Court of Appeals also denied Cuenca’s motion for intervention in its Resolution of
31 May 2007. Cuenca did not appeal the denial of his motion.
On 2 July 2007, this Court issued an order directing PNCC and Radstock, their officers, agents,
representatives, and other persons under their control, to maintain the status quo ante.
Meanwhile, on 20 February 2007, Sison, also a stockholder and former PNCC President and Board
Chairman, filed a Petition for Annulment of Judgment Approving Compromise Agreement before the
Court of Appeals. The case was docketed as CA-G.R. SP No. 97982.
Asiavest, a judgment creditor of PNCC, filed an Urgent Motion for Leave to Intervene and to File the
Attached Opposition and Motion-in-Intervention before the Court of Appeals in CA-G.R. SP No.
97982.
In a Resolution dated 12 June 2007, the Court of Appeals dismissed Sison’s petition on the ground that
it had no jurisdiction to annul a final and executory judgment also rendered by the Court of Appeals.
In the same resolution, the Court of Appeals also denied Asiavest’s urgent motion.
Asiavest filed its Urgent Motion for Leave to Intervene and to File the Attached Opposition and
Motion-in-Intervention in G.R. No. 178158.18
Sison filed a motion for reconsideration. In its 5 November 2007 Resolution, the Court of Appeals
denied Sison’s motion.
On 26 November 2007, Sison filed a petition for review before this Court, docketed as G.R. No.
180428.
In a Resolution dated 18 February 2008, this Court consolidated G.R. Nos. 178158 and 180428.
On 13 January 2009, the Court held oral arguments on the following issues:
1. Does the Compromise Agreement violate public policy?
2. Does the subject matter involve an assumption by the government of a private entity’s
obligation in violation of the law and/or the Constitution? Is the PNCC Board Resolution of
20 October 2000 defective or illegal?
3. Is the Compromise Agreement viable in the light of the non-renewal of PNCC’s franchise
by Congress and its inclusion of all or substantially all of PNCC’s assets?
4. Is the Decision of the Court of Appeals annullable even if final and executory on grounds
of fraud and violation of public policy and the Constitution?
III.
Propriety of Actions
The Court of Appeals denied STRADEC’s motion for intervention on the ground that the motion was
filed only after the Court of Appeals and the trial court had promulgated their respective decisions.
Section 2, Rule 19 of the 1997 Rules of Civil Procedure provides:
SECTION 2. Time to intervene.– The motion to intervene may be filed at any time before rendition
of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the
motion and served on the original parties.
The rule is not absolute. The rule on intervention, like all other rules of procedure, is intended to
make the powers of the Court completely available for justice. 19 It is aimed to facilitate a
comprehensive adjudication of rival claims, overriding technicalities on the timeliness of the filing
of the claims.20 This Court has ruled:
[A]llowance or disallowance of a motion for intervention rests on the sound discretion of the court
after consideration of the appropriate circumstances. Rule 19 of the Rules of Court is a rule of
procedure whose object is to make the powers of the court fully and completely available for
justice. Its purpose is not to hinder or delay but to facilitate and promote the administration of
justice. Thus, interventions have been allowed even beyond the prescribed period in the Rule in the
higher interest of justice. Interventions have been granted to afford indispensable parties, who have
not been impleaded, the right to be heard even after a decision has been rendered by the trial court,
when the petition for review of the judgment was already submitted for decision before the
Supreme Court, and even where the assailed order has already become final and executory. In Lim
v. Pacquing (310 Phil. 722 (1995)], the motion for intervention filed by the Republic of the
Philippines was allowed by this Court to avoid grave injustice and injury and to settle once and for
all the substantive issues raised by the parties.21
In Collado v. Court of Appeals,22 this Court reiterated that exceptions to Section 2, Rule 12 could
be made in the interest of substantial justice. Citing Mago v. Court of Appeals,23 the Court stated:
It is quite clear and patent that the motions for intervention filed by the movants at this stage of the
proceedings where trial had already been concluded x x x and on appeal x x x the same affirmed by
the Court of Appeals and the instant petition for certiorari to review said judgments is already
submitted for decision by the Supreme Court, are obviously and, manifestly late, beyond the period
prescribed under x x x Section 2, Rule 12 of the Rules of Court.
But Rule 12 of the Rules of Court, like all other Rules therein promulgated, is simply a rule of
procedure, the whole purpose and object of which is to make the powers of the Court fully and
completely available for justice. The purpose of procedure is not to thwart justice. Its proper aim is
to facilitate the application of justice to the rival claims of contending parties. It was created not to
hinder and delay but to facilitate and promote the administration of justice. It does not constitute
the thing itself which courts are always striving to secure to litigants. It is designed as the means
best adopted to obtain that thing. In other words, it is a means to an end.
Concededly, STRADEC has no legal interest in the subject matter of the Compromise Agreement.
Section 1, Rule 19 of the 1997 Rules of Civil Procedure states:
SECTION 1. Who may intervene. - A person who has a legal interest in the matter in litigation, or in
the success of either of the parties, or an interest against both, or is so situated as to be adversely
affected by a distribution or other disposition of property in the custody of the court or of an officer
thereof may, with leave of court, be allowed to intervene in the action. The Court shall consider
whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the
original parties, and whether or not the intervenor’s rights may be fully protected in a separate
proceeding.
STRADEC’s interest is dependent on the outcome of Civil Case No. 05-882. Unless STRADEC can
show that RTC Branch 146 had already decided in its favor, its legal interest is simply contingent and
expectant.
However, Asiavest has a direct and material interest in the approval or disapproval of the Compromise
Agreement. Asiavest is a judgment creditor of PNCC in G.R. No. 110263 and a court has already
issued a writ of execution in its favor. Asiavest’s interest is actual and material, direct and immediate
characterized by either gain or loss from the judgment that this Court may render. 24 Considering that
the Compromise Agreement involves the disposition of all or substantially all of the assets of PNCC,
Asiavest, as PNCC’s judgment creditor, will be greatly prejudiced if the Compromise Agreement is
eventually upheld.
Sison has legal standing to challenge the Compromise Agreement. Although there was no allegation
that Sison filed the case as a derivative suit in the name of PNCC, it could be fairly deduced that Sison
was assailing the Compromise Agreement as a stockholder of PNCC. In such a situation, a stockholder
of PNCC can sue on behalf of PNCC to annul the Compromise Agreement.
A derivative action is a suit by a stockholder to enforce a corporate cause of action. 25 Under the
Corporation Code, where a corporation is an injured party, its power to sue is lodged with its board of
directors or trustees.26 However, an individual stockholder may file a derivative suit on behalf of the
corporation to protect or vindicate corporate rights whenever the officials of the corporation refuse to
sue, or are the ones to be sued, or hold control of the corporation. 27 In such actions, the corporation is
the real party-in-interest while the suing stockholder, on behalf of the corporation, is only a nominal
party.28
In this case, the PNCC Board cannot conceivably be expected to attack the validity of the
Compromise Agreement since the PNCC Board itself approved the Compromise Agreement. In fact,
the PNCC Board steadfastly defends the Compromise Agreement for allegedly being advantageous to
PNCC.
Besides, the circumstances in this case are peculiar. Sison, as former PNCC President and
Chairman of the PNCC Board, was responsible for the approval of the Board Resolution issued on
19 June 2001 revoking the previous Board Resolution admitting PNCC’s liability for the Marubeni
loans.29 Such revocation, however, came after Radstock had filed an action for collection and
damages against PNCC on 15 January 2001. Then, when the trial court rendered its decision on 10
December 2002 in favor of Radstock, Sison was no longer the PNCC President and Chairman,
although he remains a stockholder of PNCC.
When the case was on appeal before the Court of Appeals, there was no need for Sison to avail of
any remedy, until PNCC and Radstock entered into the Compromise Agreement, which disposed of
all or substantially all of PNCC’s assets. Sison came to know of the Compromise Agreement only
in December 2006. PNCC and Radstock submitted the Compromise Agreement to the Court of
Appeals for approval on 10 January 2007. The Court of Appeals approved the Compromise
Agreement on 25 January 2007. To require Sison at this stage to exhaust all the remedies within the
corporation will render such remedies useless as the Compromise Agreement had already been
approved by the Court of Appeals. PNCC’s assets are in danger of being dissipated in favor of a
private foreign corporation. Thus, Sison had no recourse but to avail of an extraordinary remedy to
protect PNCC’s assets.
Besides, in the interest of substantial justice and for compelling reasons, such as the nature and
importance of the issues raised in this case, 30 this Court must take cognizance of Sison’s action.
This Court should exercise its prerogative to set aside technicalities in the Rules, because after all,
the power of this Court to suspend its own rules whenever the interest of justice requires is well
recognized.31 In Solicitor General v. The Metropolitan Manila Authority,32 this Court held:
Unquestionably, the Court has the power to suspend procedural rules in the exercise of its inherent
power, as expressly recognized in the Constitution, to promulgate rules concerning ‘pleading,
practice and procedure in all courts.’ In proper cases, procedural rules may be relaxed or suspended
in the interest of substantial justice, which otherwise may be miscarried because of a rigid and
formalistic adherence to such rules. x x x
We have made similar rulings in other cases, thus:
Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of
justice. Their strict and rigid application, which would result in technicalities that tend to frustrate
rather than promote substantial justice, must always be avoided. x x x Time and again, this Court
has suspended its own rules and excepted a particular case from their operation whenever the
higher interests of justice so require.
IV.
The PNCC Board Acted in Bad Faith and with Gross Negligence
in Directing the Affairs of PNCC
In this jurisdiction, the members of the board of directors have a three-fold duty: duty of obedience,
duty of diligence, and duty of loyalty. 33 Accordingly, the members of the board of directors (1) shall
direct the affairs of the corporation only in accordance with the purposes for which it was
organized;34 (2) shall not willfully and knowingly vote for or assent to patently unlawful acts of
the corporation or act in bad faith or with gross negligence in directing the affairs of the
corporation;35 and (3) shall not acquire any personal or pecuniary interest in conflict with their duty
as such directors or trustees.36
In the present case, the PNCC Board blatantly violated its duty of diligence as it miserably failed to
act in good faith in handling the affairs of PNCC.
First. For almost two decades, the PNCC Board had consistently refused to admit liability for the
Marubeni loans because of the absence of a PNCC Board resolution authorizing the issuance of the
letters of guarantee.
There is no dispute that between 1978 and 1980, Marubeni Corporation extended two loans to Basay
Mining (later renamed CDCP Mining): (1) US$5 million to finance the purchase of copper
concentrates by Basay Mining; and (2) Y5.46 billion to finance the completion of the expansion
project of Basay Mining including working capital.
There is also no dispute that it was only on 20 October 2000 when the PNCC Board approved a
resolution expressly admitting PNCC’s liability for the Marubeni loans. This was the first Board
Resolution admitting liability for the Marubeni loans, for PNCC never admitted liability for these
debts in the past. Even Radstock admitted that PNCC’s 1994 Financial Statements did not reflect the
Marubeni loans.37 Also, former PNCC Chairman Arthur Aguilar stated during the Senate hearings
that "the Marubeni claim was never in the balance sheet x x x nor was it in a contingent account." 38
Miriam M. Pasetes, SVP Finance of PNCC, and Atty. Herman R. Cimafranca of the Office of the
Government Corporate Counsel, confirmed this fact, thus:
SEN. DRILON. x x x And so, PNCC itself did not recognize this as an obligation but the board
suddenly recognized it as an obligation. It was on that basis that the case was filed, is that correct? In
fact, the case hinges on – they knew that this claim has prescribed but because of that board resolution
which recognized the obligation they filed their complaint, is that correct?
MR. CIMAFRANCA. Apparently, it's like that, Senator, because the filing of the case came after the
acknowledgement.
SEN. DRILON. Yes. In fact, the filing of the case came three months after the acknowledgement.
MR. CIMAFRANCA. Yes. And that made it difficult to handle on our part.
SEN. DRILON. That is correct. So, that it was an obligation which was not recognized in the
financial statements of PNCC but revived – in the financial statements because it has
prescribed but revived by the board effectively. That's the theory, at least, of the plaintiff. Is
that correct? Who can answer that?
Ms. Pasetes, yes.
MS. PASETES. It is not an obligation of PNCC that is why it is not reflected in the financial
statements.39 (Emphasis supplied)
In short, after two decades of consistently refuting its liability for the Marubeni loans, the PNCC
Board suddenly and inexplicably reversed itself by admitting in October 2000 liability for the
Marubeni loans. Just three months after the PNCC Board recognized the Marubeni loans, Radstock
acquired Marubeni's receivable and filed the present collection case.
Second. The PNCC Board admitted liability for the Marubeni loans despite PNCC’s total liabilities
far exceeding its assets. There is no dispute that the Marubeni loans, once recognized, would wipe
out the assets of PNCC, "virtually emptying the coffers of the PNCC." 40 While PNCC insists that
it remains financially viable, the figures in the COA Audit Reports tell otherwise. 41 For 2006 and
2005, "the Corporation has incurred negative gross margin of ₱84.531 Million and ₱80.180
Million, respectively, and net losses that had accumulated in a deficit of ₱14.823 Billion as of
31 December 2006."42 The COA even opined that "unless [PNCC] Management addresses the
issue on net losses in its financial rehabilitation plan, x x x the Corporation may not be able
to continue its operations as a going concern."
Notably, during the oral arguments before this Court, the Government Corporate Counsel admitted
the PNCC’s huge negative net worth, thus:
JUSTICE CARPIO
x x x what is the net worth now of PNCC? Negative what? Negative 6 Billion at least[?]
ATTY. AGRA
Yes, your Honor.43 (Emphasis supplied)
Clearly, the PNCC Board’s admission of liability for the Marubeni loans, given PNCC’s huge
negative net worth of at least ₱6 billion as admitted by PNCC’s counsel, or ₱14.823 billion based
on the 2006 COA Audit Report, would leave PNCC an empty shell, without any assets to pay its
biggest creditor, the National Government with an admitted receivable of ₱36 billion from PNCC.
Third. In a debilitating self-inflicted injury, the PNCC Board revived what appeared to have been a
dead claim by abandoning one of PNCC’s strong defenses, which is the prescription of the action to
collect the Marubeni loans.
Settled is the rule that actions prescribe by the mere lapse of time fixed by law. 44 Under Article 1144
of the Civil Code, an action upon a written contract, such as a loan contract, must be brought within
ten years from the time the right of action accrues. The prescription of such an action is interrupted
when the action is filed before the court, when there is a written extrajudicial demand by the creditor,
or when there is any written acknowledgment of the debt by the debtor. 45
In this case, Basay Mining obtained the Marubeni loans sometime between 1978 and 1981. While
Radstock claims that numerous demand letters were sent to PNCC, based on the records, the
extrajudicial demands to pay the loans appear to have been made only in 1984 and 1986. Meanwhile,
the written acknowledgment of the debt, in the form of Board Resolution No. BD-092-2000, was
issued only on 20 October 2000.
Thus, more than ten years would have already lapsed between Marubeni’s extrajudicial demands in
1984 and 1986 and the acknowledgment by the PNCC Board of the Marubeni loans in 2000.
However, the PNCC Board suddenly passed Board Resolution No. BD-092-2000 expressly admitting
liability for the Marubeni loans. In short, the PNCC Board admitted liability for the Marubeni loans
despite the fact that the same might no longer be judicially collectible. Although the legal advantage
was obviously on its side, the PNCC Board threw in the towel even before the fight could begin.
During the Senate hearings, the matter of prescription was discussed, thus:
SEN. DRILON. ... the prescription period is 10 years and there were no payments – the last demands
were made, when? The last demands for payment?
MS. OGAN. It was made January 2001 prior to the filing of the case.
SEN. DRILON. Yes, all right. Before that, when was the last demand made? By the time they filed the
complaint more than 10 years already lapsed.
MS. OGAN. On record, Mr. Chairman, we have demands starting from - - a series of demands which
started from May 23, 1984, letter from Marubeni to PNCC, demand payment. And we also have the
letter of September 3, 1986, letter of Marubeni to then PNCC Chair Mr. Jaime. We have the June 24,
1986 letter from Marubeni to the PNCC Chairman. Also the March 4, 1988 letter...
SEN. DRILON. The March 4, 1988 letter is not a demand letter.
MS. OGAN. It is exactly addressed to the Asset Privatization Trust.
SEN. DRILON. It is not a demand letter? Okay.
MS. OGAN. And we have also...
SEN. DRILON. Anyway...
THE CHAIRMAN. Please answer when you are asked, Ms. Ogan. We want to put it on the record
whether it is "yes" or "no".
MS. OGAN. Yes, sir.
SEN. DRILON. So, even assuming that all of those were demand letters, the 10 years prescription
set in and it should have prescribed in 1998, whatever is the date, or before the case was filed in
2001.
MR. CIMAFRANCA. The 10-year period for – if the contract is written, it's 10 years and it should
have prescribed in 10 years and we did raise that in our answer, in our motion to dismiss.
SEN. DRILON. I know. You raised this in your motion to dismiss and you raised this in your
answer. Now, we are not saying that you were negligent in not raising that. What we are just
putting on the record that indeed there is basis to argue that these claims have prescribed.
Now, the reason why there was a colorable basis on the complaint filed in 2001 was that somehow
the board of PNCC recognized the obligation in a special board meeting on October 20, 2000.
Hindi ba ganoon 'yon?
MS. OGAN. Yes, that is correct.
SEN. DRILON. Why did the PNCC recognize this obligation in 2000 when it was very clear that
at that point more than 10 years have lapsed since the last demand letter?
MR. AGUILAR. May I volunteer an answer?
SEN. DRILON. Please.
MR. AGUILAR. I looked into that, Mr. Chairman, Your Honor. It was as a result of and I go to the
folder letter "N." In our own demand research it was not period, Your Honor, that Punongbayan in
the big folder, sir, letter "N" it was the period where PMO was selling PNCC and Punongbayan
and Araullo Law Office came out with an investment brochure that indicated liabilities both to
national government and to Marubeni/Radstock. So, PMO said, "For good order, can you PNCC
board confirm that by board resolution?" That's the tone of the letter.
SEN. DRILON. Confirm what? Confirm the liabilities that are contained in the Punongbayan
investment prospectus both to the national government and to PNCC. That is the reason at least
from the record, Your Honor, how the PNCC board got to deliberate on the Marubeni.
THE CHAIRMAN. What paragraph? Second to the last paragraph?
MR. AGUILAR. Yes. Yes, Mr. Chairman. Ito po 'yong – that"s to our recollection, in the records, that
was the reason.
SEN. DRILON. Is that the only reason why ...
MR. AGUILAR. From just the records, Mr. Chairman, and then interviews with people who are still
around.
SEN. DRILON. You mean, you acknowledged a prescribed obligation because of this paragraph?
MR. AGUILAR. I don’t know what legal advice we were following at that time, Mr. Chairman. 46
(Emphasis supplied)
Besides prescription, the Office of the Government Corporate Counsel (OGCC) originally believed
that PNCC had another formidable legal weapon against Radstock, that is, the lack of authority of
Alfredo Asuncion, then Executive Vice-President of PNCC, to sign the letter of guarantee on behalf of
CDCP. During the Senate hearings, the following exchange reveals the OGCC’s original opinion:
THE CHAIRMAN. What was the opinion of the Office of the Government Corporate Counsel?
MS. OGAN. The opinion of the Office of the Government Corporate Counsel is that PNCC should
exhaust all means to resist the case using all defenses available to a guarantee and a surety that there is
a valid ground for PNCC's refusal to honor or make good the alleged guarantee obligation. It
appearing that from the documents submitted to the OGCC that there is no board authority in favor or
authorizing Mr. Asuncion, then EVP, to sign or execute the letter of guarantee in behalf of CDCP and
that said letter of guarantee is not legally binding upon or enforceable against CDCP as principals,
your Honors.47
xxxx
SEN. DRILON. Now that we have read this, what was the opinion of the Government Corporate
Counsel, Mr. Cimafranca?
MR. CIMAFRANCA. Yes, Senator, we did issue an opinion upon the request of PNCC and our
opinion was that there was no valid obligation, no valid guarantee. And we incorporated that in our
pleadings in court.48 (Emphasis supplied)
Clearly, PNCC had strong defenses against the collection suit filed by Radstock, as originally opined
by the OGCC. It is quite puzzling, therefore, that the PNCC Board, which had solid grounds to refute
the legitimacy of the Marubeni loans, admitted its liability and entered into a Compromise Agreement
that is manifestly and grossly prejudicial to PNCC.
Fourth. The basis for the admission of liability for the Marubeni loans, which was an opinion of the
Feria Law Office, was not even shown to the PNCC Board.
Atty. Raymundo Francisco, the APT trustee overseeing the proposed privatization of PNCC at the
time, was responsible for recommending to the PNCC Board the admission of PNCC’s liability for
the Marubeni loans. Atty. Francisco based his recommendation solely on a mere alleged opinion of
the Feria Law Office. Atty. Francisco did not bother to show this "Feria opinion" to the members of
the PNCC Board, except to Atty. Renato Valdecantos, who as the then PNCC Chairman did not
also show the "Feria opinion" to the other PNCC Board members. During the Senate hearings,
Atty. Francisco could not produce a copy of the "Feria opinion." The Senators grilled Atty.
Francisco on his recommendation to recognize PNCC’s liability for the Marubeni loans, thus:
THE CHAIRMAN. x x x You were the one who wrote this letter or rather this memorandum dated
17 October 2000 to Atty. Valdecantos. Can you tell us the background why you wrote the letter
acknowledging a debt which is non-existent?
MR. FRANCISCO. I was appointed as the trustee in charge of the privatization of the PNCC at
that time, sir. And I was tasked to do a study and engage the services of financial advisors as well
as legal advisors to do a legal audit and financial study on the position of PNCC. I bidded out these
engagements, the financial advisership went to Punongbayan and Araullo. The legal audit went to
the Feria Law Offices.
THE CHAIRMAN. Spell it. Boy Feria?
MR. FRANCISCO. Feria-- Feria.
THE CHAIRMAN. Lugto?
MR. FRANCISCO. Yes. Yes, Your Honor. And this was the findings of the Feria Law Office – that
the Marubeni account was a legal obligation.
So, I presented this to our board. Based on the findings of the legal audit conducted by the Ferial
Law Offices, sir.
THE CHAIRMAN. Why did you not ask the government corporate counsel? Why did you have to
ask for the opinion of an outside counsel?
MR. FRANCISCO. That was the – that was the mandate given to us, sir, that we have to engage
the ...
THE CHAIRMAN. Mandate given by whom?
MR. FRANCISCO. That is what we usually do, sir, in the APT.
THE CHAIRMAN. Ah, you get outside counsel?
MR. FRANCISCO. Yes, we...
THE CHAIRMAN. Not necessarily the government corporate counsel? Okay naman andiyan siya.
MR. FRANCISCO. No, sir. (Ms. Ogan handing the document to Mr. Francisco.)
THE CHAIRMAN. So, on the basis of the opinion of outside counsel, private, you proceeded to, in You have familiarized yourselves with the minutes, Atty. Francisco?
effect, recognize an obligation which is not even entered in the books of the PNCC? You probably
MR. FRANCISCO. Yes, sir.
resuscitated a non-existing obligation anymore?
SEN. DRILON. Now, mention is made of a memorandum here on line 8, page 3 of this board’s
MR. FRANCISCO. Sir, I just based my recommendation on the professional findings of the law office
minutes. It says, "Director Francisco has prepared a memorandum requesting confirmation,
that we engaged, sir.
acknowledgement, and ratification of this indebtedness of PNCC to the national government which
THE CHAIRMAN. Did you not ask for the opinion of the government corporate counsel? was determined by Bureau of Treasury as of September 30, 1999 is 36,023,784,751. And with
respect to PNCC’s obligation to Marubeni, this has been determined to be in the total amount of
MR. FRANCISCO. No, sir.
10,743,103,388, also as of September 30, 1999; that there is need to ratify this because there has
THE CHAIRMAN. Why? already been a representation made with respect to the review of the financial records of PNCC by
Punongbayan and Araullo, which have been included as part of the package of APT’s disposition to
MR. FRANCISCO. I felt that the engagements of the law office was sufficient, anyway we were
the national government’s interest in PNCC."
going to raise it to the Committee on Privatization for their approval or disapproval, sir.
You recall having made this representation as found in the minutes, I assume, Atty. Francisco?
THE CHAIRMAN. The COP?
MR. FRANCISCO. Yes, sir. But I’d like to be refreshed on the memorandum, sir, because I don’t
MR. FRANCISCO. Yes, sir.
have a copy.
THE CHAIRMAN. That’s a cabinet level?
SEN. DRILON. Yes, this memorandum was cited earlier by Senator Arroyo, and maybe the
MR. FRANCISCO. Yes, sir. And we did that, sir. secretary can give him a copy? Give him a copy?

THE CHAIRMAN. Now... So you sent your memo to Atty. Renato B. Valdecantos, who unfortunately MS. OGAN. (Handing the document to Mr. Francisco.)
is not here but I think we have to get his response to this. And as part of the minutes of special meeting
MR. FRANCISCO. Your Honor, I have here a memorandum to the PNCC board through Atty.
with the board of directors on October 20, 2000, the board resolved in its Board Resolution No. 092-
Valdecantos, which says that – in the last paragraph, if I may read? "May we request therefore, that
2000, the board resolved to recognize, acknowledge and confirm PNCC’s obligations as of September
a board resolution be adopted, acknowledging and confirming the aforementioned PNCC
30, 1999, etcetera, etcetera. (A), or rather (B), Marubeni Corporation in the amount of ₱10,740,000.
obligations with the national government and Marubeni as borne out by the due diligence audit."
Now, we asked to be here because the franchise of PNCC is hanging in a balance because of the – on
SEN. DRILON. This is the memorandum referred to in these minutes. This memorandum dated 17
the questions on this acknowledgement. So we want to be educated.
October 2000 is the memorandum referred to in the minutes.
Now, the paper trail starts with your letter. So, that’s it – that’s my kuwan, Frank.
MR. FRANCISCO. I would assume, Mr. Chairman.
Yes, Senator Drilon.
SEN. DRILON. Right.
SEN. DRILON. Thank you, Mr. Chairman.
Now, the Punongbayan representative who was here yesterday, Mr...
Yes, Atty. Francisco, you have a copy of the minutes of October 20, 2000?
THE CHAIRMAN. Navarro.
MR. FRANCISCO. I’m sorry, sir, we don’t have a copy.
SEN. DRILON. ... Navarro denied that he made this recommendation.
SEN. DRILON. May we ask the corporate secretary of PNCC to provide us with a copy?
THE CHAIRMAN. He asked for opinion, legal opinion.
SEN. DRILON. He said that they never made this representation and the transcript will bear us out.
They said that they never made this representation that the account of Marubeni should be recognized.
MR. FRANCISCO. Mr. Chairman, in the memorandum, I only mentioned here the acknowledgement
and confirmation of the PNCC obligations. I was not asking for a ratification. I never mentioned
ratification in the memorandum. I just based my memo based on the due diligence audit of the Feria
Law Offices.
SEN. DRILON. Can you say that again? You never asked for a ratification...
MR. FRANCISCO. No. I never mentioned in my memorandum that I was asking for a ratification. I
was just – in my memo it says, "acknowledging and confirming the PNCC obligation." This was
what ...
SEN. DRILON. Isn’t it the same as ratification? I mean, what’s the difference?
MR. FRANCISCO. I – well, my memorandum was meant really just to confirm the findings of the
legal audit as ...
SEN. DRILON. In your mind as a lawyer, Atty. Francisco, there’s a difference between ratification
and – what’s your term? -- acknowledgment and confirmation?
MR. FRANCISCO. Well, I guess there’s no difference, Mr. Chairman.
SEN. DRILON. Right.
Anyway, just of record, the Punongbayan representatives here yesterday said that they never made
such representation.
In any case, now you’re saying it’s the Feria Law Office who rendered that opinion? Can we – you
know, yesterday we were asking for a copy of this opinion but we were never furnished one. The ... no
less than the Chairman of this Committee was asking for a copy.
THE CHAIRMAN. Well, copy of the opinion...
MS. OGAN. Yes, Mr. Chairman, we were never furnished a copy of this opinion because it’s opinion
rendered for the Asset Privatization Trust which is its client, not the PNCC, Mr. Chairman.
THE CHAIRMAN. All right. The question is whether – but you see, this is a memorandum of Atty.
Francisco to the Chairman of the Asset Privatization Trust. You say now that you were never furnished
a copy because that’s supposed to be with the Asset ...
MS. OGAN. Yes, Mr. Chairman.
THE CHAIRMAN. ... but yet the action of – or rather the opinion of the Feria Law Offices was in
effect adopted by the board of directors of PNCC in its minutes of October 20, 2000 where you are
the corporate secretary, Ms. Ogan.
MS. OGAN. Yes, Mr. Chairman.
THE CHAIRMAN. So, what I am saying is that this opinion or rather the opinion of the Feria Law
Offices of which you don’t have a copy?
MS. OGAN. Yes, sir.
THE CHAIRMAN. And the reason being that, it does not concern the PNCC because that’s an
opinion rendered for APT and not for the PNCC.
MS. OGAN. Yes, Mr. Chairman, that was what we were told although we made several requests to
the APT, sir.
THE CHAIRMAN. All right. Now, since it was for the APT and not for the PNCC, I ask the
question why did PNCC adopt it? That was not for the consumption of PNCC. It was for the
consumption of the Asset Privatization Trust. And that is what Atty. Francisco says and it’s
confirmed by you saying that this was a memo – you don’t have a copy because this was sought for
by APT and the Feria Law Offices just provided an opinion – provided the APT with an opinion.
So, as corporate secretary, the board of directors of PNCC adopted it, recognized the Marubeni
Corporation.
You read the minutes of the October 20, 2000 meeting of the board of directors on Item V. The
resolution speaks of .. so, go ahead.
MS. OGAN. I gave my copies. Yes, sir.
THE CHAIRMAN. In effect the Feria Law Offices’ opinion was for the consumption of the APT.
MS. OGAN. That was what we were told, Mr. Chairman.
THE CHAIRMAN. And you were not even provided with a copy.
THE CHAIRMAN. Yet you adopted it.
MS. OGAN. Yes, sir.
SEN DRILON. Considering you were the corporate secretary.
THE CHAIRMAN. She was the corporate secretary.
SEN. DRILON. She was just recording the minutes.
THE CHAIRMAN. Yes, she was recording.
Now, we are asking you now why it was taken up?
MS. OGAN. Yes, sir, Mr. Chairman, this was mentioned in the memorandum of Atty. Francisco,
memorandum to the board.
SEN. DRILON. Mr. Chairman, Mr. Francisco represented APT in the board of PNCC. And is that
correct, Mr. Francisco?
THE CHAIRMAN. You’re an ex-officio member.
SEN. DRILON. Yes.
MR. FRANCISCO. Ex-officio member only, sir, as trustee in charge of the privatization of PNCC.
SEN. DRILON. With the permission of Mr. Chair, may I ask a question...
THE CHAIRMAN. Oh, yes, Senator Drilon.
SEN. DRILON. Atty. Francisco, you sat in the PNCC board as APT representative, you are a lawyer,
there was a legal opinion of Feria, Feria, Lugto, Lao Law Offices which you cited in your
memorandum. Did you discuss – first, did you give a copy of this opinion to PNCC?
MR. FRANCISCO. I gave a copy of this opinion, sir, to our chairman who was also a member of the
board of PNCC, Mr. Valdecantos, sir.
SEN. DRILON. And because he was...
MR. FRANCISCO. Because he was my immediate boss in the APT.
SEN. DRILON. Apparently, [it] just ended up in the personal possession of Mr. Valdecantos because
the corporate secretary, Glenda Ogan, who is supposed to be the custodian of the records of the board
never saw a copy of this.
MR. FRANCISCO. Well, sir, my – the copy that I gave was to Mr. Valdecantos because he was the
one sitting in the PNCC board, sir.
SEN. DRILON. No, you sit in the board.
MR. FRANCISCO. I was just an ex-officio member. And all my reports were coursed through our
Chairman, Mr. Valdecantos, sir.
SEN. DRILON. Now, did you ever tell the board that there is a legal position taken or at least from the
documents it is possible that the claim has prescribed?
MR. FRANCISCO. I took this up in the board meeting of the PNCC at that time and I told them about
this matter, sir.
SEN. DRILON. No, you told them that the claim could have, under the law, could have
prescribed?
MR. FRANCISCO. No, sir.
SEN. DRILON. Why? You mean, you didn’t tell the board that it is possible that this liability is no
longer a valid liability because it has prescribed?
MR. FRANCISCO. I did not dwell into the findings anymore, sir, because I found the professional
opinion of the Feria Law Office to be sufficient.49 (Emphasis supplied)
Atty. Francisco’s act of recommending to the PNCC Board the acknowledgment of the Marubeni
loans based only on an opinion of a private law firm, without consulting the OGCC and without
showing this opinion to the members of the PNCC Board except to Atty. Valdecantos, reflects how
shockingly little his concern was for PNCC, contrary to his claim that "he only had the interest of
PNCC at heart." In fact, if what was involved was his own money, Atty. Francisco would have
preferred not just two, but at least three different opinions on how to deal with the matter, and he
would have maintained his non-liability.
SEN. OSMEÑA. x x x
All right. And lastly, just to clear our minds, there has always been this finger-pointing, of course,
whenever – this is typical Filipino. When they're caught in a bind, they always point a finger, they
pretend they don't know. And it just amazes me that you have been appointed trustees, meaning,
representatives of the Filipino people, that's what you were at APT, right? You were not Erap's
representatives, you were representative of the Filipino people and you were tasked to conserve the
assets that that had been confiscated from various cronies of the previous administration. And here,
you are asked to recognize the P10 billion debt and you point only to one law firm. If you have
cancer, don't you to a second opinion, a second doctor or a third doctor? This is just a question. I
am just asking you for your opinion if you would take the advice of the first doctor who tells you
that he's got to open you up.
MR. FRANCISCO. I would go to three or more doctors, sir.
SEN. OSMEÑA. Three or more. Yeah, that's right. And in this case the APT did not do so.
MR. FRANCISCO. We relied on the findings of the …
SEN. OSMEÑA. If these were your money, would you have gone also to obtain a second, third
opinion from other law firms. Kung pera mo itong 10 billion na ito. Siguro you're not gonna give it
up that easily ano, 'di ba?
MR. FRANCISCO. Yes, sir.
SEN. OSMEÑA. You'll probably keep it in court for the next 20 years.
x x x x50 (Emphasis supplied)
This is a clear admission by Atty. Francisco of bad faith in directing the affairs of PNCC - that he
would not have recognized the Marubeni loans if his own funds were involved or if he were the owner
of PNCC.
The PNCC Board admitted liability for the ₱10.743 billion Marubeni loans without seeing, reading or
discussing the "Feria opinion" which was the sole basis for its admission of liability. Such act surely
goes against ordinary human nature, and amounts to gross negligence and utter bad faith, even
bordering on fraud, on the part of the PNCC Board in directing the affairs of the corporation. Owing
loyalty to PNCC and its stockholders, the PNCC Board should have exercised utmost care and
diligence in admitting a gargantuan debt of ₱10.743 billion that would certainly force PNCC into
insolvency, a debt that previous PNCC Boards in the last two decades consistently refused to admit.
Instead, the PNCC Board admitted PNCC’s liability for the Marubeni loans relying solely on a mere
opinion of a private law office, which opinion the PNCC Board members never saw, except for Atty.
Valdecantos and Atty. Francisco. The PNCC Board knew that PNCC, as a government owned and
controlled corporation (GOCC), must rely "exclusively" on the opinion of the OGCC. Section 1 of
Memorandum Circular No. 9 dated 27 August 1998 issued by the President states:
SECTION 1. All legal matters pertaining to government-owned or controlled corporations, their
subsidiaries, other corporate off-springs and government acquired asset corporations (GOCCs) shall
be exclusively referred to and handled by the Office of the Government Corporate Counsel (OGCC).
(Emphasis supplied)
The PNCC Board acted in bad faith in relying on the opinion of a private lawyer knowing that PNCC
is required to rely "exclusively" on the OGCC’s opinion. Worse, the PNCC Board, in admitting
liability for ₱10.743 billion, relied on the recommendation of a private lawyer whose opinion the
PNCC Board members have not even seen.
During the oral arguments, Atty. Sison explained to the Court that the intention of APT was for the
PNCC Board merely to disclose the claim of Marubeni as part of APT's full disclosure policy to
prospective buyers of PNCC. Atty. Sison stated that it was not the intention of APT for the PNCC
Board to admit liability for the Marubeni loans, thus:
x x x It was the Asset Privatization Trust A-P-T that was tasked to sell the company. The A-P-T, for
purposes of disclosure statements, tasked the Feria Law Office to handle the documentation and the
study of all legal issues that had to be resolved or clarified for the information of prospective bidders
and or buyers. In the performance of its assigned task the Feria Law Office came upon the Marubeni
claim and mentioned that the APTC and/or PNCC must disclose that there is a claim by Marubeni
against PNCC for purposes of satisfying the requirements of full disclosure. This seemingly
innocent statement or requirement made by the Feria Law Office was then taken by two officials of
the Asset Privatization Trust and with malice aforethought turned it into the basis for a multi-
billion peso debt by the now government owned and/or controlled PNCC. x x x. 51 (Emphasis
supplied)
While the PNCC Board passed Board Resolution No. BD-099-2000 amending Board Resolution
No. BD-092-2000, such amendment merely added conditions for the recognition of the Marubeni
loans, namely, subjecting the recognition to a final determination by COA of the amount involved
and to the declaration by OGCC of the legality of PNCC’s liability. However, the PNCC Board
reiterated and stood firm that it "recognizes, acknowledges and confirms its obligations" for the
Marubeni loans. Apparently, Board Resolution No. BD-099-2000 was a futile attempt to "revoke"
Board Resolution No. BD-092-2000. Atty. Alfredo Laya, Jr., a former PNCC Director, spoke on his
protests against Board Resolution No. BD-092-2000 at the Senate hearings, thus:
MR. LAYA. Mr. Chairman, if I can …
THE CHAIRMAN. Were you also at the board?
MR. LAYA. At that time, yes, sir.
THE CHAIRMAN. Okay, go ahead.
MR. LAYA. That's why if – maybe this can help clarify the sequence. There was this meeting on
October 20. This matter of the Marubeni liability or account was also discussed. Mr. Macasaet, if I
may try to refresh. And there was some discussion, sir, and in fact, they were saying even at that
stage that there should be a COA or an OGCC audit. Now, that was during the discussion of
October 20. Later on, the minutes came out. The practice, then, sir, was for the minutes to come
out at the start of the meeting of the subsequent. So the minutes of October 20 came out on
November 22 and then we were going over it. And that is in the subsequent minutes of the meeting
…
THE CHAIRMAN. May I interrupt. You were taking up in your November 22 meeting the October
20 minutes?
MR. LAYA. Yes, sir.
THE CHAIRMAN. This minutes that we have?
MR. LAYA. Yes, sir.
THE CHAIRMAN. All right, go ahead.
MR. LAYA. Now, in the November 22 meeting, we noticed this resolution already for confirmation of
the board – proceedings of October 20. So immediately we made – actually, protest would be a better
term for that – we protested the wording of the resolution and that's why we came up with this
resolution amending the October 20 resolution.
SEN. DRILON. So you are saying, Mr. Laya, that the minutes of October 20 did not accurately reflect
the decisions that you made on October 20 because you were saying that this recognition should be
subject to OGCC and COA? You seem to imply and we want to make it – and I want to get that for the
record. You seem to imply that there was no decision to recognize the obligation during that meeting
because you wanted it to subject it to COA and OGCC, is that correct?
MR. LAYA. Yes, your Honor.
SEN. DRILON. So how did...
MR. LAYA. That's my understanding of the proceedings at that time, that's why in the subsequent
November 22 meeting, we raised this point about obtaining a COA and OGCC opinion.
SEN. DRILON. Yes. But you know, the November 22 meeting repeated the wording of the resolution
previously adopted only now you are saying subject to final determination which is completely of
different import from what you are saying was your understanding of the decision arrived at on
October 20.
MR. LAYA. Yes, sir. Because our thinking then...
SEN. DRILON. What do you mean, yes, sir?
MR. LAYA. It's just a claim under discussion but then the way it is translated, as the minutes of
October 20 were not really verbatim.
SEN. DRILON. So, you never intended to recognize the obligation.
MR. LAYA. I think so, sir. That was our – personally, that was my position.
SEN. DRILON. How did it happen, Corporate Secretary Ogan, that the minutes did not reflect what
the board …
THE CHAIRMAN. Ms. Pasetes …
MS. PASETES. Yes, Mr. Chairman.
THE CHAIRMAN. … you are the chief financial officer of PNCC.
MS. PASETES. Your Honor, before that November 22 board meeting, management headed by Mr.
Rolando Macasaet, myself and Atty. Ogan had a discussion about the recognition of the obligations of
10 billion of Marubeni and 36 billion of the national government on whether to recognize this as an
obligation in our books or recognize it as an obligation in the pro forma financial statement to be
used for the privatization of PNCC because recognizing both obligations in the books of PNCC
would defeat our going concern status and that is where the position of the president then, Mr.
Macasaet, stemmed from and he went back to the board and moved to reconsider the position of
October 20, 2000, Mr. Chair.52 (Emphasis supplied)
In other words, despite Atty. Laya’s objections to PNCC’s admitting liability for the Marubeni
loans, the PNCC Board still admitted the same and merely imposed additional conditions to temper
somehow the devastating effects of Board Resolution No. BD-092-2000.
The act of the PNCC Board in issuing Board Resolution No. BD-092-2000 expressly admitting
liability for the Marubeni loans demonstrates the PNCC Board’s gross and willful disregard of the
requisite care and diligence in managing the affairs of PNCC, amounting to bad faith and resulting
in grave and irreparable injury to PNCC and its stockholders. This reckless and treacherous move
on the part of the PNCC Board clearly constitutes a serious breach of its fiduciary duty to PNCC
and its stockholders, rendering the members of the PNCC Board liable under Section 31 of the
Corporation Code, which provides:
SEC. 31. Liability of directors, trustees or officers. -- Directors or trustees who willfully and
knowingly vote for or assent to patently unlawful acts of the corporation or who are guilty of gross
negligence or bad faith in directing the affairs of the corporation or acquire any personal or
pecuniary interest in conflict with their duty as such directors or trustees shall be liable jointly and
severally for all damages resulting therefrom suffered by the corporation, its stockholders or
members and other persons.
When a director, trustee or officer attempts to acquire or acquires, in violation of his duty, any
interest adverse to the corporation in respect of any matter which has been reposed in him in
confidence, as to which equity imposes a disability upon him to deal in his own behalf, he shall be
liable as a trustee for the corporation and must account for the profits which otherwise would have
accrued to the corporation.
Soon after the short-lived Estrada Administration, the PNCC Board revoked its previous admission
of liability for the Marubeni loans. During the oral arguments, Atty. Sison narrated to the Court:
x x x After President Estrada was ousted, I was appointed as President and Chairman of PNCC in
April of 2001, this particular board resolution was brought to my attention and I immediately put
the matter before the board. I had no problem in convincing them to reverse the recognition as it
was illegal and had no basis in fact. The vote to overturn that resolution was unanimous. Strange to
say that some who voted to overturn the recognition were part of the old board that approved it.
Stranger still, Renato Valdecantos who was still a member of the Board voted in favor of reversing
the resolution he himself instigated and pushed. Some of the board members who voted to
recognize the obligation of Marubeni even came to me privately and said "pinilit lang kami." x x x. 53
(Emphasis supplied)
In approving PNCC Board Resolution Nos. BD-092-2000 and BD-099-2000, the PNCC Board caused
undue injury to the Government and gave unwarranted benefits to Radstock, through manifest
partiality, evident bad faith or gross inexcusable negligence of the PNCC Board. Such acts are
declared under Section 3(e) of RA 3019 or the Anti-Graft and Corrupt Practices Act, as "corrupt
practices xxx and xxx unlawful." Being unlawful and criminal acts, these PNCC Board Resolutions
are void ab initio and cannot be implemented or in any way given effect by the Executive or Judicial
branch of the Government.
Not content with forcing PNCC to commit corporate suicide with the admission of liability for the
Marubeni loans under Board Resolution Nos. BD-092-2000 and BD-099-2000, the PNCC Board
drove the last nail on PNCC’s coffin when the PNCC Board entered into the manifestly and grossly
disadvantageous Compromise Agreement with Radstock. This time, the OGCC, headed by Agnes
DST Devanadera, reversed itself and recommended approval of the Compromise Agreement to the
PNCC Board. As Atty. Sison explained to the Court during the oral arguments:
x x x While the case was pending in the Court of Appeals, Radstock in a rare display of extreme
generosity, conveniently convinced the Board of PNCC to enter into a compromise agreement for ½
the amount of the judgment rendered by the RTC or ₱6.5 Billion Pesos. This time the OGCC, under
the leadership of now Solicitor General Agnes Devanadera, approved the compromise agreement
abandoning the previous OGCC position that PNCC had a meritorious case and would be hard press
to lose the case. What is strange is that although the compromise agreement we seek to stop ostensibly
is for ₱6.5 Billion only, truth and in fact, the agreement agrees to convey to Radstock all or
substantially all of the assets of PNCC worth ₱18 Billion Pesos. There are three items that are
undervalued here, the real estate that was turned over as a result of the controversial agreement, the
toll revenues that were being assigned and the value of the new shares of PNCC the difference is about
₱12 Billion Pesos. x x x (Emphasis supplied)
V.
The Compromise Agreement is Void
for Being Contrary to the Constitution,
Existing Laws, and Public Policy
For a better understanding of the present case, the pertinent terms and conditions of the Compromise
Agreement between PNCC and Radstock are quoted below:
COMPROMISE AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
This Agreement made and entered into this 17th day of August 2006, in
Mandaluyong City, Metro Manila, Philippines, by and between:
PHILIPPINE NATIONAL CONSTRUCTION CORPORATION, a government
acquired asset corporation, created and existing under the laws of the Republic of the
Philippines, with principal office address at EDSA corner Reliance Street,
Mandaluyong City, Philippines, duly represented herein by its Chairman ARTHUR
N. AGUILAR, pursuant to a Board Resolution attached herewith as Annex "A" and
made an integral part hereof, hereinafter referred to as PNCC;
- and -
RADSTOCK SECURITIES LIMITED, a private corporation incorporated in the
British Virgin Islands, with office address at Suite 1402 1 Duddell Street, Central
Hongkong duly-represented herein by its Director, CARLOS G. DOMINGUEZ,
pursuant to a Board Resolution attached herewith as Annex "B" and made an integral
part hereof, hereinafter referred to as RADSTOCK.
WITNESSETH:
WHEREAS, on January 15, 2001, RADSTOCK, as assignee of Marubeni
Corporation, filed a complaint for sum of money and damages with application for a
writ of preliminary attachment with the Regional Trial Court (RTC), Mandaluyong
City, docketed as Civil Case No. MC-01-1398, to collect on PNCC’s guarantees on
the unpaid loan obligations of CDCP Mining Corporation as provided under an
Advance Payment Agreement and Loan Agreement;
WHEREAS, on December 10, 2002, the RTC of Mandaluyong rendered a decision in
favor of plaintiff RADSTOCK directing PNCC to pay the total amount of Thirteen
Billion One Hundred Fifty One Million Nine Hundred Fifty-Six Thousand Five
Hundred Twenty-Eight Pesos (₱13,151,956,528.00) with interest from October 15,
2001 plus Ten Million Pesos (₱10,000,000.00) as attorney's fees.
WHEREAS, PNCC had elevated the case to the Court of Appeals (CA-G.R. SP No.
66654) on Certiorari and thereafter, to the Supreme Court (G.R. No. 156887) which
Courts have consistently ruled that the RTC did not commit grave abuse of discretion
when it denied PNCC’s Motion to Dismiss which sets forth similar or substantially
the same grounds or defenses as those raised in PNCC's Answer;
WHEREAS, the case has remained pending for almost six (6) years even after the
main action was appealed to the Court of Appeals;
WHEREAS, on the basis of the RTC Decision dated December 10, 2002, the current
value of the judgment debt against PNCC stands at ₱17,040,843,968.00 as of July 31,
2006 (the "Judgment Debt");
WHEREAS, RADSTOCK is willing to settle the case at the reduced Compromise
Amount of Six Billion One Hundred Ninety-Six Million Pesos (₱6,196,000,000.00)
which may be paid by PNCC, either in cash or in kind to avoid the trouble and
inconvenience of further litigation as a gesture of goodwill and cooperation;
WHEREAS, it is an established legal policy or principle that litigants in civil cases
should be encouraged to compromise or amicably settle their claims not only to avoid
litigation but also to put an end to one already commenced (Articles 2028 and 2029,
Civil Code);
WHEREAS, this Compromise Agreement has been approved by the respective Board of
Directors of both PNCC and RADSTOCK, subject to the approval of the Honorable
Court;
NOW, THEREFORE, for and in consideration of the foregoing premises, and the mutual
covenants, stipulations and agreements herein contained, PNCC and RADSTOCK have
agreed to amicably settle the above captioned Radstock case under the following terms
and conditions:
1. RADSTOCK agrees to receive and accept from PNCC in full and complete
settlement of the Judgment Debt, the reduced amount of Six Billion, One
Hundred Ninety-Six Million Pesos (₱6,196,000,000.00) (the "Compromise
Amount").
2. This Compromise Amount shall be paid by PNCC to RADSTOCK in the
following manner:
a. PNCC shall assign to a third party assignee to be designated by RADSTOCK all its
rights and interests to the following real properties provided the assignee shall be duly
qualified to own real properties in the Philippines;
(1) PNCC’s rights over that parcel of land located in Pasay City with a total area
of One Hundred Twenty-Nine Thousand Five Hundred Forty-Eight (129,548)
square meters, more or less, and which is covered by and more particularly
described in Transfer Certificate of Title No. T-34997 of the Registry of Deeds
for Pasay City. The transfer value is ₱3,817,779,000.00.
PNCC’s rights and interests in Transfer Certificate of Title No. T-34997 of the
Registry of Deeds for Pasay City is defined and delineated by Administrative
Order No. 397, Series of 1998, and RADSTOCK is fully aware and
recognizes that PNCC has an undertaking to cede at least 2 hectares of this
property to its creditor, the Philippine National Bank; and that furthermore,
the Government Service Insurance System has also a current and existing
claim in the nature of boundary conflicts, which undertaking and claim will
not result in the diminution of area or value of the property. Radstock
recognizes and acknowledges the rights and interests of GSIS over the said
property.
(2) T-452587 (T-23646) - Parañaque (5,123 sq. m.) subject to the clarification
of the Privatization and Management Office (PMO) claims thereon. The
transfer value is ₱45,000,900.00.
(3) T-49499 (529715 including T-68146-G (S-29716) (1,9747-A)-Parañaque
(107 sq. m.) (54 sq. m.) subject to the clarification of the Privatization and
Management Office (PMO) claims thereon. The transfer value is
₱1,409,100.00.
(4) 5-29716-Parañaque (27,762 sq. m.) subject to the clarification of the
Privatization and Management Office (PMO) claims thereon. The transfer
value is ₱242,917,500.00.
(5) P-169 - Tagaytay (49,107 sq. m.). The transfer value is ₱13,749,400.00.
(6) P-170 - Tagaytay (49,100 sq. m.). The transfer value is ₱13,749,400.00.
(7) N-3320 - Town and Country Estate, Antipolo (10,000 sq. m.). The
transfer value is ₱16,800,000.00.
(8) N-7424 - Antipolo (840 sq. m.). The transfer value is ₱940,800.00.
(9) N-7425 - Antipolo (850 sq. m.). The transfer value is ₱952,000.00.
(10) N-7426 - Antipolo (958 sq. m.). The transfer value is ₱1,073,100.00.
(11) T-485276 - Antipolo (741 sq. m.). The transfer value is ₱830,200.00.
(12) T-485277 - Antipolo (680 sq. m.). The transfer value is ₱761,600.00.
(13) T-485278 - Antipolo (701 sq. m.). The transfer value is ₱785,400.00.
 (14) T-131500 - Bulacan (CDCP Farms Corp.) (4,945 sq, m.). The transfer value
is ₱6,475,000.00.
(15) T-131501 - Bulacan (678 sq. m.). The transfer value is ₱887,600.00.
(16) T-26,154 (M) - Bocaue, Bulacan (2,841 sq. m.). The transfer value is
₱3,779,300.00.
(17) T-29,308 (M) - Bocaue, Bulacan (733 sq. m.). The transfer value is
₱974,400.00.
(18) T-29,309 (M) Bocaue, Bulacan (1,141 sq. m.). The transfer value is
₱1,517,600.00.
(19) T-260578 (R. Bengzon) Sta. Rita, Guiguinto, Bulacan (20,000 sq. m.). The
transfer value is ₱25,200,000.00.
The transfer values of the foregoing properties are based on 70% of the appraised value
of the respective properties.
b. PNCC shall issue to RADSTOCK or its assignee common shares of the capital stock
of PNCC issued at par value which shall comprise 20% of the outstanding capital stock
of PNCC after the conversion to equity of the debt exposure of the Privatization
Management Office (PMO) and the National Development Company (NDC) and other
government agencies and creditors such that the total government holdings shall not fall
below 70% voting equity subject to the approval of the Securities and Exchange
Commission (SEC) and ratification of PNCC’s stockholders, if necessary. The assigned
value of the shares issued to RADSTOCK is ₱713 Million based on the approximate last
trading price of PNCC shares in the Philippine Stock Exchange as the date of this
agreement, based further on current generally accepted accounting standards which
stipulates the valuation of shares to be based on the lower of cost or market value.
Subject to the procurement of any and all necessary approvals from the relevant
governmental authorities, PNCC shall deliver to RADSTOCK an instrument evidencing
an undertaking of the Privatization and Management Office (PMO) to give RADSTOCK
or its assignee the right to match any offer to buy the shares of the capital stock and
debts of PNCC held by PMO, in the event the same shares and debt are offered for
privatization.
c. PNCC shall assign to RADSTOCK or its assignee 50% of the PNCC's 6% share in the
gross toll revenue of the Manila North Tollways Corporation (MNTC), with a Net
Present Value of ₱1.287 Billion computed in the manner outlined in Annex "C" herein
attached as an integral part hereof, that shall be due and owing to PNCC pursuant to the
Joint Venture Agreement between PNCC and First Philippine Infrastructure
Development Corp. dated August 29, 1995 and other related existing agreements,
commencing in 2008. It shall be understood that as a result of this assignment, PNCC
shall charge and withhold the amounts, if any, pertaining to taxes due on the amounts
assigned.
Under the Compromise Agreement, PNCC shall pay Radstock the reduced amount of
₱6,185,000,000.00 in full settlement of PNCC’s guarantee of CDCP Mining’s debt
allegedly totaling ₱17,040,843,968.00 as of 31 July 2006. To satisfy its reduced
obligation, PNCC undertakes to (1) "assign to a third party assignee to be designated
by Radstock all its rights and interests" to the listed real properties therein; (2) issue
to Radstock or its assignee common shares of the capital stock of PNCC issued at par
value which shall comprise 20% of the outstanding capital stock of PNCC; and (3)
assign to Radstock or its assignee 50% of PNCC’s 6% share, for the next 27 years
(2008-2035), in the gross toll revenues of the Manila North Tollways Corporation.
A. The PNCC Board has no power to compromise
the ₱6.185 billion amount.
Does the PNCC Board have the power to compromise the ₱6.185 billion "reduced" amount? The
answer is in the negative.1avvphi1
The Dissenting Opinion asserts that PNCC has the power, citing Section 36(2) of Presidential
Decree No. 1445 (PD 1445), otherwise known as the Government Auditing Code of the
Philippines, enacted in 1978. Section 36 states:
SECTION 36. Power to Compromise Claims. — (1) When the interest of the government so
requires, the Commission may compromise or release in whole or in part, any claim or settled
liability to any government agency not exceeding ten thousand pesos and with the written approval
of the Prime Minister, it may likewise compromise or release any similar claim or liability not
exceeding one hundred thousand pesos, the application for relief therefrom shall be submitted,
through the Commission and the Prime Minister, with their recommendations, to the National
Assembly.
(2) The respective governing bodies of government-owned or controlled corporations, and self-
governing boards, commissions or agencies of the government shall have the exclusive power to
compromise or release any similar claim or liability when expressly authorized by their charters
and if in their judgment, the interest of their respective corporations or agencies so requires. When
the charters do not so provide, the power to compromise shall be exercised by the Commission in
accordance with the preceding paragraph. (Emphasis supplied)
The Dissenting Opinion asserts that since PNCC is incorporated under the Corporation Code, the
PNCC Board has all the powers granted to the governing boards of corporations incorporated under
the Corporation Code, which includes the power to compromise claims or liabilities.
Section 36 of PD 1445, enacted on 11 June 1978, has been superseded by a later law -- Section 20(1),
Chapter IV, Subtitle B, Title I, Book V of Executive Order No. 292 or the Administrative Code of
1987, which provides:
Section 20. Power to Compromise Claims. - (1) When the interest of the Government so requires, the
Commission may compromise or release in whole or in part, any settled claim or liability to any
government agency not exceeding ten thousand pesos arising out of any matter or case before it or
within its jurisdiction, and with the written approval of the President, it may likewise compromise or
release any similar claim or liability not exceeding one hundred thousand pesos. In case the claim or
liability exceeds one hundred thousand pesos, the application for relief therefrom shall be submitted,
through the Commission and the President, with their recommendations, to the Congress[.] x x x
(Emphasis supplied)
Under this provision,54 the authority to compromise a settled claim or liability exceeding ₱100,000.00
involving a government agency, as in this case where the liability amounts to ₱6.185 billion, is vested
not in COA but exclusively in Congress. Congress alone has the power to compromise the ₱6.185
billion purported liability of PNCC. Without congressional approval, the Compromise Agreement
between PNCC and Radstock involving ₱6.185 billion is void for being contrary to Section 20(1),
Chapter IV, Subtitle B, Title I, Book V of the Administrative Code of 1987.
PNCC is a "government agency" because Section 2 on Introductory Provisions of the Revised
Administrative Code of 1987 provides that –
Agency of the Government refers to any of the various units of the Government, including a
department, bureau, office, instrumentality, or government-owned or controlled corporation, or a local
government or a distinct unit therein. (Boldfacing supplied)
Thus, Section 20(1), Chapter IV, Subtitle B, Title I, Book V of the Administrative Code of 1987
applies to PNCC, which indisputably is a government owned or controlled corporation.
In the same vein, the COA’s stamp of approval on the Compromise Agreement is void for violating
Section 20(1), Chapter IV, Subtitle B, Title I, Book V of the Administrative Code of 1987. Clearly, the
Dissenting Opinion’s reliance on the COA’s finding that the terms and conditions of the Compromise
Agreement are "fair and above board" is patently erroneous.
Citing Benedicto v. Board of Administrators of Television Stations RPN, BBC and IBC, 55 the
Dissenting Opinion views that congressional approval is not required for the validity of the
Compromise Agreement because the liability of PNCC is not yet "settled."
In Benedicto, the PCGG filed in the Sandiganbayan a civil case to recover from the defendants
(including Roberto S. Benedicto) their ill-gotten wealth consisting of funds and other properties.
The PCGG executed a compromise agreement with Roberto S. Benedicto ceding to the latter a
substantial part of his ill-gotten assets and the State granting him immunity from further
prosecution. The Court held that prior congressional approval is not required for the PCGG to enter
into a compromise agreement with persons against whom it has filed actions for recovery of ill-
gotten wealth.
In Benedicto, the Court found that the government’s claim against Benedicto was not yet settled
unlike here where the PNCC Board expressly admitted the liability of PNCC for the Marubeni
loans. In Benedicto, the ownership of the alleged ill-gotten assets was still being litigated in the
Sandiganbayan and no party ever admitted any liability, unlike here where the PNCC Board had
already admitted through a formal Board Resolution PNCC’s liability for the Marubeni loans.
PNCC’s express admission of liability for the Marubeni loans is essentially the premise of the
execution of the Compromise Agreement. In short, Radstock’s claim against PNCC is settled by
virtue of PNCC’s express admission of liability for the Marubeni loans. The Compromise
Agreement merely reduced this settled liability from ₱17 billion to ₱6.185 billion.
The provision of the Revised Administrative Code on the power to settle claims or liabilities was
precisely enacted to prevent government agencies from admitting liabilities against the
government, then compromising such "settled" liabilities. The present case is exactly what the law
seeks to prevent, a compromise agreement on a creditor’s claim settled through admission by a
government agency without the approval of Congress for amounts exceeding ₱100,000.00. What
makes the application of the law even more necessary is that the PNCC Board’s twin moves are
manifestly and grossly disadvantageous to the Government. First, the PNCC admitted solidary
liability for a staggering ₱10.743 billion private debt incurred by a private corporation which
PNCC does not even control. Second, the PNCC Board agreed to pay Radstock ₱6.185 billion as a
compromise settlement ahead of all other creditors, including the Government which is the biggest
creditor.
The Dissenting Opinion further argues that since the PNCC is incorporated under the Corporation
Code, it has the power, through its Board of Directors, to compromise just like any other private
corporation organized under the Corporation Code. Thus, the Dissenting Opinion states:
Not being a government corporation created by special law, PNCC does not owe its creation to
some charter or special law, but to the Corporation Code. Its powers are enumerated in the
Corporation Code and its articles of incorporation. As an autonomous entity, it undoubtedly has the
power to compromise, and to enter into a settlement through its Board of Directors, just like any
other private corporation organized under the Corporation Code. To maintain otherwise is to ignore
the character of PNCC as a corporate entity organized under the Corporation Code, by which it
was vested with a personality and identity distinct and separate from those of its stockholders or
members. (Boldfacing and underlining supplied)
The Dissenting Opinion is woefully wide off the mark. The PNCC is not "just like any other private
corporation" precisely because it is not a private corporation but indisputably a government owned
corporation. Neither is PNCC "an autonomous entity" considering that PNCC is under the Department
of Trade and Industry, over which the President exercises control. To claim that PNCC is an
"autonomous entity" is to say that it is a lost command in the Executive branch, a concept that violates
the President's constitutional power of control over the entire Executive branch of government. 56
The government nominees in the PNCC Board, who practically compose the entire PNCC Board, are
public officers subject to the Anti-Graft and Corrupt Practices Act, accountable to the Government and
the Filipino people. To hold that a corporation incorporated under the Corporation Code, despite its
being 90.3% owned by the Government, is "an autonomous entity" that could solely through its Board
of Directors compromise, and transfer ownership of, substantially all its assets to a private third party
without the approval required under the Administrative Code of 1987, 57 is to invite the plunder of all
such government owned corporations.
The Dissenting Opinion’s claim that PNCC is an autonomous entity just like any other private
corporation is inconsistent with its assertion that Section 36(2) of the Government Auditing Code is
the governing law in determining PNCC's power to compromise. Section 36(2) of the Government
Auditing Code expressly states that it applies to the governing bodies of "government-owned or
controlled corporations." The phrase "government-owned or controlled corporations" refers to both
those created by special charter as well as those incorporated under the Corporation Code. Section 2,
Article IX-D of the Constitution provides:
SECTION 2. (1) The Commission on Audit shall have the power, authority, and duty to examine,
audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of
funds and property, owned or held in trust by, or pertaining to, the Government, or any of its
subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations
with original charters, and on a post-audit basis: (a) constitutional bodies, commissions and offices
that have been granted fiscal autonomy under this Constitution; (b) autonomous state colleges and
universities; (c) other government-owned or controlled corporations and their subsidiaries; and (d)
such non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the
Government, which are required by law or the granting institution to submit to such audit as a
condition of subsidy or equity. However, where the internal control system of the audited agencies is
inadequate, the Commission may adopt such measures, including temporary or special pre-audit, as
are necessary and appropriate to correct the deficiencies. It shall keep the general accounts of the
Government and, for such period as may be provided by law, preserve the vouchers and other
supporting papers pertaining thereto.
(2) The Commission shall have exclusive authority, subject to the limitations in this Article, to
define the scope of its audit and examination, establish the techniques and methods required
therefor, and promulgate accounting and auditing rules and regulations, including those for the
prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable
expenditures, or uses of government funds and properties. (Emphasis supplied)
In explaining the extent of the jurisdiction of COA over government owned or controlled
corporations, this Court declared in Feliciano v. Commission on Audit: 58
The COA's audit jurisdiction extends not only to government "agencies or instrumentalities," but
also to "government-owned and controlled corporations with original charters" as well as "other
government-owned or controlled corporations" without original charters.
xxxx
Petitioner forgets that the constitutional criterion on the exercise of COA's audit jurisdiction
depends on the government's ownership or control of a corporation. The nature of the corporation,
whether it is private, quasi-public, or public is immaterial.
The Constitution vests in the COA audit jurisdiction over "government-owned and controlled
corporations with original charters," as well as "government-owned or controlled corporations"
without original charters. GOCCs with original charters are subject to COA pre-audit, while
GOCCs without original charters are subject to COA post-audit. GOCCs without original charters
refer to corporations created under the Corporation Code but are owned or controlled by the
government. The nature or purpose of the corporation is not material in determining COA's audit
jurisdiction. Neither is the manner of creation of a corporation, whether under a general or special
law.
Clearly, the COA’s audit jurisdiction extends to government owned or controlled corporations
incorporated under the Corporation Code. Thus, the COA must apply the Government Auditing
Code in the audit and examination of the accounts of such government owned or controlled
corporations even though incorporated under the Corporation Code. This means that Section 20(1),
Chapter IV, Subtitle B, Title I, Book V of the Administrative Code of 1987 on the power to
compromise, which superseded Section 36 of the Government Auditing Code, applies to the
present case in determining PNCC’s power to compromise. In fact, the COA has been regularly
auditing PNCC on a post-audit basis in accordance with Section 2, Article IX-D of the
Constitution, the Government Auditing Code, and COA rules and regulations.
B. PNCC’s toll fees are public funds.
PD 1113 granted PNCC a 30-year franchise to construct, operate and maintain toll facilities in the
North and South Luzon Expressways. Section 1 of PD 111359 provides:
Section 1. Any provision of law to the contrary notwithstanding, there is hereby granted to the
Construction and Development Corporation of the Philippines (CDCP), a corporation duly organized
and registered under the laws of the Philippines, hereinafter called the GRANTEE, for a period of
thirty (30) years from May 1, 1977 the right, privilege and authority to construct, operate and maintain
toll facilities covering the expressways from Balintawak (Station 9 + 563) to Carmen, Rosales,
Pangasinan and from Nichols, Pasay City (Station 10 + 540) to Lucena, Quezon, hereinafter referred
to collectively as North Luzon Expressway, respectively.
The franchise herein granted shall include the right to collect toll fees at such rates as may be fixed
and/or authorized by the Toll Regulatory Board hereinafter referred to as the Board created under
Presidential Decree No. 1112 for the use of the expressways above-mentioned. (Emphasis supplied)
Section 2 of PD 1894,60 which amended PD 1113 to include in PNCC’s franchise the Metro Manila
expressway, also provides:
Section 2. The term of the franchise provided under Presidential Decree No. 1113 for the North Luzon
Expressway and the South Luzon Expressway which is thirty (30) years from 1 May 1977 shall
remain the same; provided that, the franchise granted for the Metro Manila Expressway and all
extensions linkages, stretches and diversions that may be constructed after the date of approval of this
decree shall likewise have a term of thirty (30) years commencing from the date of completion of the
project. (Emphasis supplied)
Based on these provisions, the franchise of the PNCC expired on 1 May 2007 or thirty years from 1
May 1977.
PNCC, however, claims that under PD 1894, the North Luzon Expressway (NLEX) shall have a term
of 30 years from the date of its completion in 2005. PNCC argues that the proviso in Section 2 of PD
1894 gave "toll road projects completed within the franchise period and after the approval of PD No.
1894 on 12 December 1983 their own thirty-year term commencing from the date of the completion of
the said project, notwithstanding the expiry of the said franchise."
This contention is untenable.
The proviso in Section 2 of PD 1894 refers to the franchise granted for the Metro Manila Expressway
and all extensions linkages, stretches and diversions constructed after the approval of PD 1894. It does
not pertain to the NLEX because the term of the NLEX franchise, "which is 30 years from 1 May
1977, shall remain the same," as expressly provided in the first sentence of the same Section 2 of PD
1894. To construe that the NLEX franchise had a new term of 30 years starting from 2005 glaringly
conflicts with the plain, clear and unequivocal language of the first sentence of Section 2 of PD 1894.
That would be clearly absurd.
There is no dispute that Congress did not renew PNCC’s franchise after its expiry on 1 May 2007.
However, PNCC asserts that it "remains a viable corporate entity even after the expiration of its
franchise under Presidential Decree No. 1113." PNCC points out that the Toll Regulatory Board
(TRB) granted PNCC a "Tollway Operation Certificate" (TOC) which conferred on PNCC the
authority to operate and maintain toll facilities, which includes the power to collect toll fees. PNCC
further posits that the toll fees are private funds because they represent "the consideration given to
tollway operators in exchange for costs they incurred or will incur in constructing, operating and
maintaining the tollways."
This contention is devoid of merit.
With the expiration of PNCC’s franchise, the assets and facilities of PNCC were automatically
turned over, by operation of law, to the government at no cost. Sections 2(e) and 9 of PD 1113 and
Section 5 of PD 1894 provide:
Section 2 [of PD 1113]. In consideration of this franchise, the GRANTEE shall:
(e) Turn over the toll facilities and all equipment directly related thereto to the government upon
expiration of the franchise period without cost.
Section 9 [of PD 1113]. For the purposes of this franchise, the Government, shall turn over to the
GRANTEE (PNCC) not later than April 30, 1977 all physical assets and facilities including all
equipment and appurtenances directly related to the operations of the North and South Toll
Expressways: Provided, That, the extensions of such Expressways shall also be turned over to
GRANTEE upon completion of their construction or of functional sections thereof: Provided,
However, That upon termination of the franchise period, said physical assets and facilities
including improvements thereon, together with equipment and appurtenances directly related to
their operations, shall be turned over to the Government without any cost or obligation on the part
of the latter. (Emphasis supplied)
Section 5 [of PD No. 1894]. In consideration of this franchise, the GRANTEE shall:
(a) Construct, operate and maintain at its own expense the Expressways; and
(b) Turn over, without cost, the toll facilities and all equipment, directly related thereto to
the Government upon expiration of the franchise period. (Emphasis supplied)
The TRB does not have the power to give back to PNCC the toll assets and facilities which were
automatically turned over to the Government, by operation of law, upon the expiration of the
franchise of the PNCC on 1 May 2007. Whatever power the TRB may have to grant authority to
operate a toll facility or to issue a "Tollway Operation Certificate," such power does not obviously
include the authority to transfer back to PNCC ownership of National Government assets, like the
toll assets and facilities, which have become National Government property upon the expiry of
PNCC’s franchise. Such act by the TRB would repeal Section 5 of PD 1894 which automatically So, it’s the government [that] decides whether it goes to the general fund or another fund. [W]hat is
vested in the National Government ownership of PNCC’s toll assets and facilities upon the expiry of that other fund? Is there another fund where revenues of the government go?
PNCC’s franchise. The TRB obviously has no power to repeal a law. Further, PD 1113, as amended by
DEAN AGABIN:
PD 1894, granting the franchise to PNCC, is a later law that must necessarily prevail over PD 1112
creating the TRB. Hence, the provisions of PD 1113, as amended by PD 1894, are controlling. It’s the same fund, Your Honor, except that (interrupted)
The government’s ownership of PNCC's toll assets and facilities inevitably results in the government’s ASSOCIATE JUSTICE CARPIO:
ownership of the toll fees and the net income derived from these toll assets and facilities. Thus, the toll
So it goes to the general fund?
fees form part of the National Government’s General Fund, which includes public moneys of every
sort and other resources pertaining to any agency of the government. 61 Even Radstock’s counsel DEAN AGABIN:
admits that the toll fees are public funds, to wit: Except that it can be categorized as a private fund in a commercial sense, and it can be categorized
ASSOCIATE JUSTICE CARPIO: as a public fund in a Public Law sense.

Okay. Now, when the franchise of PNCC expired on May 7, 2007, under the terms of the franchise ASSOCIATE JUSTICE CARPIO:
under PD 1896, all the assets, toll way assets, equipment, etcetera of PNCC became owned by Okay. So we agree that, okay, it goes to the general fund. I agree with you, but you are saying it is
government at no cost, correct, under the franchise? categorized still as a private funds?
DEAN AGABIN: DEAN AGABIN:
Yes, Your Honor. Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: ASSOCIATE JUSTICE CARPIO:
Okay. So this is now owned by the national government. [A]ny income from these assets of the But it’s part of the general fund. Now, if it is part of the general fund, who has the authority to
national government is national government income, correct? spend that money?
DEAN AGABIN: DEAN AGABIN:

Yes, Your Honor.62 Well, the National Government itself.

xxxx ASSOCIATE JUSTICE CARPIO:

ASSOCIATE JUSTICE CARPIO: Who in the National Government, the Executive, Judiciary or Legislative?

x x x My question is very simple x x x Is the income from these assets of the national government DEAN AGABIN:
(interrupted)
Well, the funds are usually appropriated by the Congress.
DEAN AGABIN:
ASSOCIATE JUSTICE CARPIO:
Yes, Your Honor.63 x x x you mean to say there are exceptions that money from the general fund can be spent by the
xxxx Executive without going t[hrough] Congress, or xxx is [that] the absolute rule?

ASSOCIATE JUSTICE CARPIO: DEAN AGABIN:

Well, in so far as the general fund is concerned, that is the absolute rule set aside by the National
Government.
ASSOCIATE JUSTICE CARPIO:
x x x you are saying this is general fund money - the collection from the assets[?]
DEAN AGABIN:
Yes.64 (Emphasis supplied)
Forming part of the General Fund, the toll fees can only be disposed of in accordance with the
fundamental principles governing financial transactions and operations of any government agency, to
wit: (1) no money shall be paid out of the Treasury except in pursuance of an appropriation made by
law, as expressly mandated by Section 29(1), Article VI of the Constitution; and (2) government funds
or property shall be spent or used solely for public purposes, as expressly mandated by Section 4(2) of
PD 1445 or the Government Auditing Code.65
Section 29(1), Article VI of the Constitution provides:
Section 29(1). No money shall be paid out of the Treasury except in pursuance of an appropriation
made by law.
The power to appropriate money from the General Funds of the Government belongs exclusively to
the Legislature. Any act in violation of this iron-clad rule is unconstitutional.
Reinforcing this Constitutional mandate, Sections 84 and 85 of PD 1445 require that before a
government agency can enter into a contract involving the expenditure of government funds, there
must be an appropriation law for such expenditure, thus:
Section 84. Disbursement of government funds.
1. Revenue funds shall not be paid out of any public treasury or depository except in pursuance of an
appropriation law or other specific statutory authority.
xxxx
Section 85. Appropriation before entering into contract.
1. No contract involving the expenditure of public funds shall be entered into unless there is an
appropriation therefor, the unexpended balance of which, free of other obligations, is sufficient to
cover the proposed expenditure.
xxxx
Section 86 of PD 1445, on the other hand, requires that the proper accounting official must certify
that funds have been appropriated for the purpose. 66 Section 87 of PD 1445 provides that any
contract entered into contrary to the requirements of Sections 85 and 86 shall be void, thus:
Section 87. Void contract and liability of officer. Any contract entered into contrary to the
requirements of the two immediately preceding sections shall be void, and the officer or officers
entering into the contract shall be liable to the government or other contracting party for any
consequent damage to the same extent as if the transaction had been wholly between private
parties. (Emphasis supplied)
Applying Section 29(1), Article VI of the Constitution, as implanted in Sections 84 and 85 of the
Government Auditing Code, a law must first be enacted by Congress appropriating ₱6.185 billion
as compromise money before payment to Radstock can be made. 67 Otherwise, such payment
violates a prohibitory law and thus void under Article 5 of the Civil Code which states that "[a]cts
executed against the provisions of mandatory or prohibitory laws shall be void, except when
the law itself authorizes their validity."
Indisputably, without an appropriation law, PNCC cannot lawfully pay ₱6.185 billion to Radstock.
Any contract allowing such payment, like the Compromise Agreement, "shall be void" as provided
in Section 87 of the Government Auditing Code. In Comelec v. Quijano-Padilla, 68 this Court
ruled:
Petitioners are justified in refusing to formalize the contract with PHOTOKINA. Prudence dictated
them not to enter into a contract not backed up by sufficient appropriation and available funds.
Definitely, to act otherwise would be a futile exercise for the contract would inevitably suffer the
vice of nullity. In Osmeña vs. Commission on Audit, this Court held:
The Auditing Code of the Philippines (P.D. 1445) further provides that no contract involving the
expenditure of public funds shall be entered into unless there is an appropriation therefor and the
proper accounting official of the agency concerned shall have certified to the officer entering into
the obligation that funds have been duly appropriated for the purpose and the amount necessary to
cover the proposed contract for the current fiscal year is available for expenditure on account
thereof. Any contract entered into contrary to the foregoing requirements shall be VOID.
Clearly then, the contract entered into by the former Mayor Duterte was void from the very
beginning since the agreed cost for the project (₱,368,920.00) was way beyond the appropriated
amount (₱,419,180.00) as certified by the City Treasurer. Hence, the contract was properly
declared void and unenforceable in COA's 2nd Indorsement, dated September 4, 1986. The COA
declared and we agree, that:
The prohibition contained in Sec. 85 of PD 1445 (Government Auditing Code) is explicit and Counsel, I'm talking of the general funds, collection from the toll fees. Okay. You said, they go to
mandatory. Fund availability is, as it has always been, an indispensable prerequisite to the execution of the general fund. You also said, money from the general fund can be spent only if there is an
any government contract involving the expenditure of public funds by all government agencies at all appropriation law by Congress.
levels. Such contracts are not to be considered as final or binding unless such a certification as to
DEAN AGABIN:
funds availability is issued (Letter of Instruction No. 767, s. 1978). Antecedent of advance
appropriation is thus essential to government liability on contracts (Zobel vs. City of Manila, 47 Phil. Yes, Your Honor.
169). This contract being violative of the legal requirements aforequoted, the same contravenes Sec.
There is no law.
85 of PD 1445 and is null and void by virtue of Sec. 87.
DEAN AGABIN:
Verily, the contract, as expressly declared by law, is inexistent and void ab initio. This is to say that the
proposed contract is without force and effect from the very beginning or from its incipiency, as if it Yes, except that, Your Honor, this fund has not yet gone to the general fund.
had never been entered into, and hence, cannot be validated either by lapse of time or ratification.
ASSOCIATE JUSTICE CARPIO:
(Emphasis supplied)
No. It’s being collected everyday. As of May 7, 2007, national government owned those assets
Significantly, Radstock’s counsel admits that an appropriation law is needed before PNCC can use toll
already. All those x x x collections that would have gone to PNCC are now national government
fees to pay Radstock, thus:
owned. It goes to the general fund. And any body who uses that without appropriation from
ASSOCIATE JUSTICE CARPIO: Congress commits malversation, I tell you.
Okay, I agree with you. Now, you are saying that money can be paid out of the general fund only DEAN AGABIN:
through an appropriation by Congress, correct? That’s what you are saying.
That is correct, Your Honor, as long as it has already gone into the general fund.
DEAN AGABIN:
ASSOCIATE JUSTICE CARPIO:
Yes, Your Honor.
Oh, you mean to say that it’s still being held now by the agent, PNCC. It has not been remitted to
ASSOCIATE JUSTICE CARPIO: the National Government?
I agree with you also. Okay, now, can PNCC xxx use this money to pay Radstock without DEAN AGABIN:
Congressional approval?
Well, if PNCC (interrupted)
DEAN AGABIN:
ASSOCIATE JUSTICE CARPIO:
Well, I believe that that may not be necessary. Your Honor, because earlier, the government had
But if (interrupted)
already decreed that PNCC should be properly paid for the reclamation works which it had done. And
so (interrupted) DEAN AGABIN:
ASSOCIATE JUSTICE CARPIO: If this is the share that properly belongs to PNCC as a private entity (interrupted)
No. I am talking of the funds. ASSOCIATE JUSTICE CARPIO:
DEAN AGABIN: No, no. I am saying that – You just agreed that all those collections now will go to the National
Government forming part of the general fund. If, somehow, PNCC is holding this money in the
And so it is like a foreign obligation.
meantime, it holds xxx it in trust, correct? Because you said, it goes to the general fund, National
ASSOCIATE JUSTICE CARPIO: Government. So it must be holding this in trust for the National Government.
DEAN AGABIN: Without an appropriation law, the use of the toll fees to pay Radstock would constitute
malversation of public funds. Even counsel for Radstock expressly admits that the use of the toll
Yes, Your Honor.
fees to pay Radstock constitutes malversation of public funds, thus:
ASSOCIATE JUSTICE CARPIO:
ASSOCIATE JUSTICE CARPIO:
Okay. Can the person holding in trust use it to pay his private debt?
x x x As of May 7, 2007, [the] national government owned those assets already. All those x x x
DEAN AGABIN: collections that would have gone to PNCC are now national government owned. It goes to the
general fund. And any body who uses that without appropriation from Congress commits
No, Your Honor.
malversation, I tell you.
ASSOCIATE JUSTICE CARPIO:
DEAN AGABIN:
Cannot be.
That is correct, Your Honor, as long as it has already gone into the general fund.
DEAN AGABIN:
ASSOCIATE JUSTICE CARPIO:
But I assume that there must be some portion of the collections which properly pertain to PNCC.
Oh, you mean to say that it’s still being held now by the agent, PNCC. It has not been remitted to
ASSOCIATE JUSTICE CARPIO: the National Government?

If there is some portion that xxx may be [for] operating expenses of PNCC. But that is not DEAN AGABIN:

DEAN AGABIN: Well, if PNCC (interrupted)

Even profit, Your Honor. ASSOCIATE JUSTICE CARPIO:

ASSOCIATE JUSTICE CARPIO: But if (interrupted)

Yeah, but that is not the six percent. Out of the six percent, that goes now to PNCC, that’s entirely DEAN AGABIN:
national government. But the National Government and the PNCC can agree on service fees for
If this is the share that properly belongs to PNCC as a private entity (interrupted)
collecting, to pay toll collectors.
ASSOCIATE JUSTICE CARPIO:
DEAN AGABIN:
No, no. I am saying that – You just agreed that all those collections now will go to the National
Yes, Your Honor.
Government forming part of the general fund. If, somehow, PNCC is holding this money in the
ASSOCIATE JUSTICE CARPIO: meantime, it holds x x x it in trust, correct? Because you said, it goes to the general fund, National
Government. So it must be holding this in trust for the National Government.
But those are expenses. We are talking of the net income. It goes to the general fund. And it’s only
Congress that can authorize that expenditure. Not even the Court of Appeals can give its stamp of DEAN AGABIN:
approval that it goes to Radstock, correct?
Yes, Your Honor.70 (Emphasis supplied)
DEAN AGABIN:
Indisputably, funds held in trust by PNCC for the National Government cannot be used by
Yes, Your Honor.69 (Emphasis supplied) PNCC to pay a private debt of CDCP Mining to Radstock, otherwise the PNCC Board will
be liable for malversation of public funds.
In addition, to pay Radstock ₱6.185 billion violates the fundamental public policy, expressly
articulated in Section 4(2) of the Government Auditing Code, 71 that government funds or property
shall be spent or used solely for pubic purposes, thus:
Section 4. Fundamental Principles. x x x (2) Government funds or property shall be spent or used
solely for public purposes. (Emphasis supplied)
There is no question that the subject of the Compromise Agreement is CDCP Mining’s private debt to
Marubeni, which Marubeni subsequently assigned to Radstock. Counsel for Radstock admits that
Radstock holds a private debt of CDCP Mining, thus:
ASSOCIATE JUSTICE CARPIO:
So your client is holding a private debt of CDCP Mining, correct?
DEAN AGABIN:
Correct, Your Honor.72 (Emphasis supplied)
CDCP Mining obtained the Marubeni loans when CDCP Mining and PNCC (then CDCP) were still
privately owned and managed corporations. The Government became the majority stockholder of
PNCC only because government financial institutions converted their loans to PNCC into equity when
PNCC failed to pay the loans. However, CDCP Mining have always remained a majority privately
owned corporation with PNCC owning only 13% of its equity as admitted by former PNCC Chairman
Arthur N. Aguilar and PNCC SVP Finance Miriam M. Pasetes during the Senate hearings, thus:
SEN. OSMEÑA. x x x – I just wanted to know is CDCP Mining a 100 percent subsidiary of PNCC?
MR. AGUILAR. Hindi ho. Ah, no.
SEN. OSMEÑA. If they’re not a 100 percent, why would they sign jointly and severally? I just want
to plug the loopholes.
MR. AGUILAR. I think it was – if I may just speculate. It was just common ownership at that time.
SEN. OSMEÑA. Al right. Now – Also, the ...
MR. AGUILAR. Ah, 13 percent daw, your Honor.
SEN. OSMEÑA. Huh?
MR. AGUILAR. Thirteen percent ho.
SEN. OSMEÑA. What’s 13 percent?
MR. AGUILAR. We owned ...
MS. PASETES. Thirteen percent of ...
SEN. OSMEÑA. PNCC owned ...
MS. PASETES. (Mike off) CDCP ...
SEN. DRILON. Use the microphone, please.
MS. PASETES. Sorry. Your Honor, the ownership of CDCP of CDCP Basay Mining ...
SEN. OSMEÑA. No, no, the ownership of CDCP. CDCP Mining, how many percent of the equity
of CDCP Mining was owned by PNCC, formerly CDCP?
MS. PASETES. Thirteen percent.
SEN. OSMEÑA. Thirteen. And as a 13 percent owner, they agreed to sign jointly and severally?
MS. PASETES. Yes.
SEN. OSMEÑA. One-three?
So poor PNCC and CDCP got taken to the cleaners here. They sign for a 100 percent and they only
own 13 percent.
x x x x73 (Emphasis supplied)
PNCC cannot use public funds, like toll fees that indisputably form part of the General Fund, to
pay a private debt of CDCP Mining to Radstock. Such payment cannot qualify as expenditure for a
public purpose. The toll fees are merely held in trust by PNCC for the National Government,
which is the owner of the toll fees.
Considering that there is no appropriation law passed by Congress for the ₱6.185 billion
compromise amount, the Compromise Agreement is void for being contrary to law, specifically
Section 29(1), Article VI of the Constitution and Section 87 of PD 1445. And since the payment of
the ₱6.185 billion pertains to CDCP Mining’s private debt to Radstock, the Compromise
Agreement is also void for being contrary to the fundamental public policy that government funds
or property shall be spent or used solely for public purposes, as provided in Section 4(2) of the
Government Auditing Code.
C. Radstock is not qualified to own land in the Philippines.
Radstock is a private corporation incorporated in the British Virgin Islands. Its office address is at
Suite 14021 Duddell Street, Central Hongkong. As a foreign corporation, with unknown owners
whose nationalities are also unknown, Radstock is not qualified to own land in the Philippines
pursuant to Section 7, in relation to Section 3, Article XII of the Constitution. These provisions
state:
Section. 3. Lands of the public domain are classified into agricultural, forest or timber, mineral lands, The foreigner cannot own the land, Your Honor.
and national parks. Agricultural lands of the public domain may be further classified by law according
ASSOCIATE JUSTICE CARPIO:
to the uses to which they may be devoted. Alienable lands of the public domain shall be limited to
agricultural lands. Private corporations or associations may not hold such lands of the public domain But you are saying it can own the right of ownership to the land, because you are saying, the right
except by lease, for a period not exceeding twenty-five years, renewable for not more than twenty-five of ownership will be assigned by Radstock.
years, and not to exceed one hundred thousand hectares in area. Citizens of the Philippines may lease
ATTY. AGRA:
not more than five hundred hectares, or acquire not more than twelve hectares thereof by purchase,
homestead, or grant. The rights over the properties, Your Honors, if there’s a valid assignment made to a qualified party,
then the assignment will be made.
Taking into account the requirements of conservation, ecology, and development, and subject to the
requirements of agrarian reform, the Congress shall determine, by law, the size of lands of the public ASSOCIATE JUSTICE CARPIO:
domain which may be acquired, developed, held, or leased and the conditions therefor.
Who makes the assignment?
xxxx
ATTY. AGRA:
Section 7. Save in cases of hereditary succession, no private lands shall be transferred or conveyed
It will be Radstock, Your Honor.
except to individuals, corporations, or associations qualified to acquire or hold lands of the public
domain. ASSOCIATE JUSTICE CARPIO:
The OGCC admits that Radstock cannot own lands in the Philippines. However, the OGCC claims So, if Radstock makes the assignment, it must own its rights, otherwise, it cannot assign it, correct?
that Radstock can own the rights to ownership of lands in the Philippines, thus:
ATTY. AGRA:
ASSOCIATE JUSTICE CARPIO:
Pursuant to the compromise agreement, once approved, yes, Your Honors.
Under the law, a foreigner cannot own land, correct?
ASSOCIATE JUSTICE CARPIO:
ATTY. AGRA:
So, you are saying that Radstock can own the rights to ownership of the land?
Yes, Your Honor.
ATTY. AGRA:
ASSOCIATE JUSTICE CARPIO:
Yes, Your Honors.
Can a foreigner who xxx cannot own land assign the right of ownership to the land?
ASSOCIATE JUSTICE CARPIO:
ATTY. AGRA:
Yes?
Again, Your Honor, at that particular time, it will be PNCC, not through Radstock, that chain of events
ATTY. AGRA:
should be, there’s a qualified nominee (interrupted)
The premise, Your Honor, you mentioned a while ago was, if this Court approves said compromise
ASSOCIATE JUSTICE CARPIO:
(interrupted)
Yes, xxx you said, Radstock will assign the right of ownership to the qualified assignee[.] So my
ASSOCIATE JUSTICE CARPIO:
question is, can a foreigner own the right to ownership of a land when it cannot own the land itself?
No, no. Whether there is such a compromise agreement - - It’s an academic question I am asking
ATTY. AGRA:
you, can a foreigner assign rights to ownership of a land in the Philippines?
ATTY. AGRA: Yeah, but it does not own the land, but it still holding the land in favor of the other party to the
Compromise Agreement
Under the Compromise Agreement, Your Honors, these rights should be respected.
ATTY. AGRA:
ASSOCIATE JUSTICE CARPIO:
Pursuant to the compromise agreement, that will happen.
So, it can?
ASSOCIATE JUSTICE CARPIO:
ATTY. AGRA:
Okay. May I (interrupted)
It can. Your Honor. But again, this right must, cannot be perfected or cannot be, could not take effect.
ATTY. AGRA:
ASSOCIATE JUSTICE CARPIO:
Again, Your Honor, if the compromise agreement ended with a statement that Radstock will be the
But if it cannot - - It’s not perfected, how can it assign?
owner of the property (interrupted)
ATTY. AGRA:
ASSOCIATE JUSTICE CARPIO:
Not directly, Your Honors. Again, there must be a qualified nominee assigned by Radstock.
Yeah. Unfortunately, it says, to a qualified assignee.
ASSOCIATE JUSTICE CARPIO:
ATTY. AGRA:
It’s very clear, it’s an indirect way of selling property that is prohibited by law, is it not?
Yes, Your Honor.
ATTY. AGRA:
ASSOCIATE JUSTICE CARPIO:
Again, Your Honor, know, believe this is a Compromise Agreement. This is a dacion en pago.
And at this point, when it is signed and execut[ed] and approved, PNCC has no dominion over that
ASSOCIATE JUSTICE CARPIO: land anymore. Who has dominion over it?

So, dacion en pago is an exception to the constitutional prohibition. ATTY. AGRA:

ATTY. AGRA: Pending the assignment to a qualified party, Your Honor, PNCC will hold on to the property.

No, Your Honor. PNCC, will still hold on to the property, absent a valid assignment of properties. ASSOCIATE JUSTICE CARPIO:

ASSOCIATE JUSTICE CARPIO: Hold on, but who x x x can exercise acts of dominion, to sell it, to lease it?

But what rights will PNCC have over that land when it has already signed the compromise? It is just ATTY. AGRA:
waiting for instruction xxx from Radstock what to do with it? So, it’s a trustee of somebody, because it
Again, Your Honor, without the valid assignment to a qualified nominee, the compromise
does not, it cannot, [it] has no dominion over it anymore? It’s just holding it for Radstock. So, PNCC
agreement in so far as the transfer of these properties will not become effective. It is subject to
becomes a dummy, at that point, of Radstock, correct?
such condition. Your Honor.74 (Emphasis supplied)
ATTY. AGRA:
There is no dispute that Radstock is disqualified to own lands in the Philippines. Consequently,
No, Your Honor, I believe it (interrupted) Radstock is also disqualified to own the rights to ownership of lands in the Philippines. Contrary to
ASSOCIATE JUSTICE CARPIO: the OGCC’s claim, Radstock cannot own the rights to ownership of any land in the Philippines
because Radstock cannot lawfully own the land itself. Otherwise, there will be a blatant
circumvention of the Constitution, which prohibits a foreign private corporation from owning land
in the Philippines. In addition, Radstock cannot transfer the rights to ownership of land in the
Philippines if it cannot own the land itself. It is basic that an assignor or seller cannot assign or sell
something he does not own at the time the ownership, or the rights to the ownership, are to be
transferred to the assignee or buyer.75
The third party assignee under the Compromise Agreement who will be designated by Radstock can
only acquire rights duplicating those which its assignor (Radstock) is entitled by law to exercise. 76
Thus, the assignee can acquire ownership of the land only if its assignor, Radstock, owns the land.
Clearly, the assignment by PNCC of the real properties to a nominee to be designated by Radstock is a
circumvention of the Constitutional prohibition against a private foreign corporation owning lands in
the Philippines. Such circumvention renders the Compromise Agreement void.
D. Public bidding is required for
the disposal of government properties.
Under Section 79 of the Government Auditing Code,77 the disposition
of government lands to private parties requires public bidding. 78 COA Circular No. 89-926, issued on
27 January 1989, sets forth the guidelines on the disposal of property and other assets of the
government. Part V of the COA Circular provides:
V. MODE OF DISPOSAL/DIVESTMENT: -
This Commission recognizes the following modes of disposal/divestment of assets and property of
national government agencies, local government units and government-owned or controlled
corporations and their subsidiaries, aside from other such modes as may be provided for by law.
1. Public Auction
Conformably to existing state policy, the divestment or disposal of government property as
contemplated herein shall be undertaken primarily thru public auction. Such mode of divestment or
disposal shall observe and adhere to established mechanics and procedures in public bidding, viz:
a. adequate publicity and notification so as to attract the greatest number of interested parties;
(vide, Sec. 79, P.D. 1445)
b. sufficient time frame between publication and date of auction;
c. opportunity afforded to interested parties to inspect the property or assets to be disposed of;
d. confidentiality of sealed proposals;
e. bond and other prequalification requirements to guarantee performance; and
f. fair evaluation of tenders and proper notification of award.
It is understood that the Government reserves the right to reject any or all of the tenders. (Emphasis
supplied)
Under the Compromise Agreement, PNCC shall dispose of substantial parcels of land, by way of
dacion en pago, in favor of Radstock. Citing Uy v. Sandiganbayan, 79 PNCC argues that a dacion
en pago is an exception to the requirement of a public bidding.
PNCC’s reliance on Uy is misplaced. There is nothing in Uy declaring that public bidding is
dispensed with in a dacion en pago transaction. The Court explained the transaction in Uy as
follows:
We do not see any infirmity in either the MOA or the SSA executed between PIEDRAS and
respondent banks. By virtue of its shareholdings in OPMC, PIEDRAS was entitled to subscribe to
3,749,906,250 class "A" and 2,499,937,500 class "B" OPMC shares. Admittedly, it was financially
sound for PIEDRAS to exercise its pre-emptive rights as an existing shareholder of OPMC lest its
proportionate shareholdings be diluted to its detriment. However, PIEDRAS lacked the necessary
funds to pay for the additional subscription. Thus, it resorted to contract loans from respondent
banks to finance the payment of its additional subscription. The mode of payment agreed upon by
the parties was that the payment would be made in the form of part of the shares subscribed to by
PIEDRAS. The OPMC shares therefore were agreed upon by the parties to be equivalent payment
for the amount advanced by respondent banks. We see the wisdom in the conditions of the loan
transaction. In order to save PIEDRAS and/or the government from the trouble of selling the
shares in order to raise funds to pay off the loans, an easier and more direct way was devised in the
form of the dacion en pago agreements.
Moreover, we agree with the Sandiganbayan that neither PIEDRAS nor the government sustained
any loss in these transactions. In fact, after deducting the shares to be given to respondent banks as
payment for the shares, PIEDRAS stood to gain about 1,540,781,554 class "A" and 710,550,000
class "B" OPMC shares virtually for free. Indeed, the question that must be asked is whether or not
PIEDRAS, in the exercise of its pre-emptive rights, would have been able to acquire any of these
shares at all if it did not enter into the financing agreements with the respondent banks. 80
Suffice it to state that in Uy, neither PIEDRAS 81 nor the government suffered any loss in the
dacion en pago transactions, unlike here where the government stands to lose at least ₱6.185
billion worth of assets.
Besides, a dacion en pago is in essence a form of sale, which basically involves a disposition of a
property. In Filinvest Credit Corp. v. Philippine Acetylene, Co., Inc., 82 the Court defined dacion
en pago in this wise:
Dacion en pago, according to Manresa, is the transmission of the ownership of a thing by the debtor to
the creditor as an accepted equivalent of the performance of obligation. In dacion en pago, as a special
mode of payment, the debtor offers another thing to the creditor who accepts it as equivalent of
payment of an outstanding debt. The undertaking really partakes in one sense of the nature of sale, that
is, the creditor is really buying the thing or property of the debtor, payment for which is to be charged
against the debtor's debt.As such, the essential elements of a contract of sale, namely, consent, object
certain, and cause or consideration must be present. In its modern concept, what actually takes place in
dacion en pago is an objective novation of the obligation where the thing offered as an accepted
equivalent of the performance of an obligation is considered as the object of the contract of sale, while
the debt is considered as the purchase price. In any case, common consent is an essential prerequisite,
be it sale or innovation to have the effect of totally extinguishing the debt or obligation. 83 (Emphasis
supplied)
E. PNCC must follow rules on preference of credit.
Radstock is only one of the creditors of PNCC. Asiavest is PNCC’s judgment creditor. In its Board
Resolution No. BD-092-2000, PNCC admitted not only its debt to Marubeni but also its debt to the
National Government84 in the amount of ₱36 billion.85 During the Senate hearings, PNCC admitted
that it owed the Government ₱36 billion, thus:
SEN. OSMEÑA. All right. Now, second question is, the management of PNCC also recognize the
obligation to the national government of 36 billion. It is part of the board resolution.
MS. OGAN. Yes, sir, it is part of the October 20 board resolution.
SEN. OSMEÑA. All right. So if you owe the national government 36 billion and you owe Marubeni
10 billion, you know, I would just declare bankruptcy and let an orderly disposition of assets be done.
What happened in this case to the claim, the 36 billion claim of the national government? How was
that disposed of by the PNCC? Mas malaki ang utang ninyo sa national government, 36 billion. Ang
gagawin ninyo, babayaran lahat ang utang ninyo sa Marubeni without any assets left to satisfy your
obligations to the national government. There should have been, at least, a pari passu payment of all
your obligations, 'di ba?
MS. PASETES. Mr. Chairman...
SEN. OSMEÑA. Yes.
MS. PASETES. PNCC still carries in its books an equity account called equity adjustments arising
from transfer of obligations to national government - - 5.4 billion - - in addition to shares held by
government amounting to 1.2 billion.
SEN. OSMEÑA. What is the 36 billion?
THE CHAIRMAN. Ms. Pasetes...
SEN. OSMEÑA. Wait, wait, wait.
THE CHAIRMAN. Baka ampaw yun eh.
SEN. OSMEÑA. Teka muna. What is the 36 billion that appear in the resolution of the board in
September 2000 (sic)? This is the same resolution that recognizes, acknowledges and confirms
PNCC's obligations to Marubeni. And subparagraph (a) says "Government of the Philippines, in
the amount of 36,023,784,000 and change. And then (b) Marubeni Corporation in the amount of
10,743,000,000. So, therefore, in the same resolution, you acknowledged that had something like
P46.7 billion in obligations. Why did PNCC settle the 10 billion and did not protect the national
government's 36 billion? And then, number two, why is it now in your books, the 36 billion is now
down to five? If you use that ratio, then Marubeni should be down to one.
MS. PASETES. Sir, the amount of 36 billion is principal plus interest and penalties.
SEN. OSMEÑA. And what about Marubeni? Is that just principal only?
MS. PASETES. Principal and interest.
SEN. OSMEÑA. So, I mean, you know, it's equal treatment. Ten point seven billion is principal
plus penalties plus interest, hindi ba?
MS. PASETES. Yes, sir. Yes, Your Honor.
SEN. OSMEÑA. All right. So now, what you are saying is that you gonna pay Marubeni 6 billion
and change and the national government is only recognizing 5 billion. I don't think that's protecting
the interest of the national government at all.86
In giving priority and preference to Radstock, the Compromise Agreement is certainly in fraud of
PNCC’s other creditors, including the National Government, and violates the provisions of the
Civil Code on concurrence and preference of credits.
This Court has held that while the Corporation Code allows the transfer of all or substantially all of
the assets of a corporation, the transfer should not prejudice the creditors of the assignor
corporation.87 Assuming that PNCC may transfer all or substantially all its assets, to allow PNCC
to do so without the consent of its creditors or without requiring Radstock to assume PNCC’s debts
will defraud the other PNCC creditors88 since the assignment will place PNCC’s assets beyond the
reach of its other creditors.89 As this Court held in Caltex (Phil.), Inc. v. PNOC Shipping and
Transport Corporation:90
While the Corporation Code allows the transfer of all or substantially all the properties and assets of a
corporation, the transfer should not prejudice the creditors of the assignor. The only way the transfer
can proceed without prejudice to the creditors is to hold the assignee liable for the obligations of the
assignor. The acquisition by the assignee of all or substantially all of the assets of the assignor
necessarily includes the assumption of the assignor's liabilities, unless the creditors who did not
consent to the transfer choose to rescind the transfer on the ground of fraud. To allow an assignor to
transfer all its business, properties and assets without the consent of its creditors and without requiring
the assignee to assume the assignor's obligations will defraud the creditors. The assignment will place
the assignor's assets beyond the reach of its creditors. (Emphasis supplied)
Also, the law, specifically Article 138791 of the Civil Code, presumes that there is fraud of creditors
when property is alienated by the debtor after judgment has been rendered against him, thus:
Alienations by onerous title are also presumed fraudulent when made by persons against whom some
judgment has been rendered in any instance or some writ of attachment has been issued. The decision
or attachment need not refer to the property alienated, and need not have been obtained by the party
seeking rescission. (Emphasis supplied)
As stated earlier, Asiavest is a judgment creditor of PNCC in G.R. No. 110263 and a court has already
issued a writ of execution in its favor. Thus, when PNCC entered into the Compromise Agreement
conveying several prime lots in favor of Radstock, by way of dacion en pago, there is a legal
presumption that such conveyance is fraudulent under Article 1387 of the Civil Code. 92 This
presumption is strengthened by the fact that the conveyance has virtually left PNCC’s other creditors,
including the biggest creditor – the National Government - with no other asset to garnish or levy.
Notably, the presumption of fraud or intention to defraud creditors is not just limited to the two
instances set forth in the first and second paragraphs of Article 1387 of the Civil Code. Under the third
paragraph of the same article, "the design to defraud creditors may be proved in any other manner
recognized by the law of evidence." In Oria v. Mcmicking, 93 this Court considered the following
instances as badges of fraud:
1. The fact that the consideration of the conveyance is fictitious or is inadequate.
2. A transfer made by a debtor after suit has begun and while it is pending against him.
3. A sale upon credit by an insolvent debtor.
4. Evidence of large indebtedness or complete insolvency.
5. The transfer of all or nearly all of his property by a debtor, especially when he is insolvent
or greatly embarrassed financially.
6. The fact that the transfer is made between father and son, when there are present other
of the above circumstances.
7. The failure of the vendee to take exclusive possession of all the property. (Emphasis
supplied)
Among the circumstances indicating fraud is a transfer of all or nearly all of the debtor’s assets,
especially when the debtor is greatly embarrassed financially. Accordingly, neither a declaration of
insolvency nor the institution of insolvency proceedings is a condition sine qua non for a transfer
of all or nearly all of a debtor’s assets to be regarded in fraud of creditors. It is sufficient that a
debtor is greatly embarrassed financially.
In this case, PNCC’s huge negative net worth - at least ₱6 billion as expressly admitted by PNCC’s
counsel during the oral arguments, or ₱14 billion based on the 2006 COA Audit Report -
necessarily translates to an extremely embarrassing financial situation. With its huge negative net
worth arising from unpaid billions of pesos in debt, PNCC cannot claim that it is financially stable.
As a consequence, the Compromise Agreement stipulating a transfer in favor of Radstock of
substantially all of PNCC’s assets constitutes fraud. To legitimize the Compromise Agreement just
because there is still no judicial declaration of PNCC’s insolvency will work fraud on PNCC’s
other creditors, the biggest creditor of which is the National Government. To insist that PNCC is
very much liquid, given its admitted huge negative net worth, is nothing but denial of the truth.
The toll fees that PNCC collects belong to the National Government. Obviously, PNCC cannot
claim it is liquid based on its collection of such toll fees, because PNCC merely holds such toll fees
in trust for the National Government. PNCC does not own the toll fees, and such toll fees do not
form part of PNCC’s assets.
PNCC owes the National Government ₱36 billion, a substantial part of which constitutes taxes and
fees, thus:
SEN. ROXAS. Thank you, Mr. Chairman.
Mr. PNCC Chairman, could you describe for us the composition of your debt of about five billion
– there are in thousands, so this looks like five and half billion. Current portion of long-term debt,
about five billion. What is this made of?
MS. PASETES. The five billion is composed of what is owed the Bureau of Treasury and the
Toll Regulatory Board for concession fees that’s almost three billion and another 2.4 billion
owed Philippine National Bank.
SEN. ROXAS. So, how much is the Bureau of Treasury?
MS. PASETES. Three billion.
SEN. ROXAS. Three – Why do you owe the Bureau of Treasury three billion?
MS. PASETES. That represents the concession fees due Toll Regulatory Board principal plus interest,
Your Honor.
x x x x94 (Emphasis supplied)
In addition, PNCC’s 2006 Audit Report by COA states as follows:
TAX MATTERS
The Company was assessed by the Bureau of Internal Revenue (BIR) of its deficiencies in various
taxes. However, no provision for any liability has been made yet in the Company’s financial
statements.
• 1980 deficiency income tax, deficiency contractor’s tax and deficiency documentary stamp tax
assessments by the BIR totaling ₱212.523 Million.
xxxx
• Deficiency business tax of ₱64 Million due the Belgian Consortium, PNCC’s partner in its LRT
Project.
• 1992 deficiency income tax, deficiency value-added tax and deficiency expanded withholding tax of
₱1.04 Billion which was reduced to ₱709 Million after the Company’s written protest.
xxxx
• 2002 deficiency internal revenue taxes totaling ₱72.916 Million.
x x x x.95 (Emphasis supplied)
Clearly, PNCC owes the National Government substantial taxes and fees amounting to billions of
pesos.
The ₱36 billion debt to the National Government was acknowledged by the PNCC Board in the same
board resolution that recognized the Marubeni loans. Since PNCC is clearly insolvent with a huge
negative net worth, the government enjoys preference over Radstock in the satisfaction of PNCC’s
liability arising from taxes and duties, pursuant to the provisions of the Civil Code on concurrence and
preference of credits. Articles 2241,96 224297 and 224398 of the Civil Code expressly mandate that
taxes and fees due the National Government "shall be preferred" and "shall first be satisfied" over
claims like those arising from the Marubeni loans which "shall enjoy no preference" under Article
2244.99
However, in flagrant violation of the Civil Code, the PNCC Board favored Radstock over the
National Government in the order of credits. This would strip PNCC of its assets leaving virtually
nothing for the National Government. This action of the PNCC Board is manifestly and grossly
disadvantageous to the National Government and amounts to fraud.
During the Senate hearings, Senator Osmeña pointed out that in the Board Resolution of 20
October 2000, PNCC acknowledged its obligations to the National Government amounting to
₱36,023,784,000 and to Marubeni amounting to ₱10,743,000,000. Yet, Senator Osmeña noted that
in the PNCC books at the time of the hearing, the ₱36 billion obligation to the National
Government was reduced to ₱5 billion. PNCC’s Miriam M. Pasetes could not properly explain this
discrepancy, except by stating that the ₱36 billion includes the principal plus interest and penalties,
thus:
SEN. OSMEÑA. Teka muna. What is the 36 billion that appear in the resolution of the board in
September 2000 (sic)? This is the same resolution that recognizes, acknowledges and confirms
PNCC's obligations to Marubeni. And subparagraph (a) says "Government of the Philippines, in
the amount of 36,023,784,000 and change. And then (b) Marubeni Corporation in the amount of
10,743,000,000. So, therefore, in the same resolution, you acknowledged that had something like
P46.7 billion in obligations. Why did PNCC settle the 10 billion and did not protect the national
government's 36 billion? And then, number two, why is it now in your books, the 36 billion is now
down to five? If you use that ratio, then Marubeni should be down to one.
MS. PASETES. Sir, the amount of 36 billion is principal plus interest and penalties.
SEN. OSMEÑA. And what about Marubeni? Is that just principal only?
MS. PASETES. Principal and interest.
SEN. OSMEÑA. So, I mean, you know, it's equal treatment. Ten point seven billion is principal
plus penalties plus interest, hindi ba?
MS. PASETES. Yes, sir. Yes, Your Honor.
SEN. OSMEÑA. All right. So now, what you are saying is that you gonna pay Marubeni 6 billion
and change and the national government is only recognizing 5 billion. I don't think that's protecting
the interest of the national government at all.100
PNCC failed to explain satisfactorily why in its books the obligation to the National Government
was reduced when no payment to the National Government appeared to have been made. PNCC
failed to justify why it made it appear that the obligation to the National Government was less than
the obligation to Marubeni. It is another obvious ploy to justify the preferential treatment given to
Radstock to the great prejudice of the National Government.
 VI.
Supreme Court is Not Legitimizer of Violations of Laws
During the oral arguments, counsels for Radstock and PNCC admitted that the Compromise
Agreement violates the Constitution and existing laws. However, they rely on this Court to approve
the Compromise Agreement to shield their clients from possible criminal acts arising from violation of
the Constitution and existing laws. In their view, once this Court approves the Compromise
Agreement, their clients are home free from prosecution, and can enjoy the ₱6.185 billion loot. The
following exchanges during the oral arguments reveal this view:
ASSOCIATE JUSTICE CARPIO:
If there is no agreement, they better remit all of that to the National Government. They cannot just
hold that. They are holding that [in] trust, as you said, x x x you agree, for the National Government.
DEAN AGABIN:
Yes, that’s why, they are asking the Honorable Court to approve the compromise agreement.
ASSOCIATE JUSTICE CARPIO:
We cannot approve that if the power to authorize the expenditure [belongs] to Congress. How
can we usurp x x x the power of Congress to authorize that expenditure[?] It’s only Congress
that can authorize the expenditure of funds from the general funds.
DEAN AGABIN:
But, Your Honor, if the Honorable Court would approve of this compromise agreement, I believe
that this would be binding on Congress.
ASSOCIATE JUSTICE CARPIO:
Ignore the Constitutional provision that money shall be paid out of the National Treasury only
pursuant to an appropriation by law. You want us to ignore that[?]
DEAN AGABIN:
Not really, Your Honor, but I suppose that Congress would have no choice, because this is a final
judgment of the Honorable Court. 101
xxxx
ASSOCIATE JUSTICE CARPIO:
So, if Radstock makes the assignment, it must own its rights, otherwise, it cannot assign it, correct?
ATTY. AGRA:
Pursuant to the compromise agreement, once approved, yes, Your Honors.
ASSOCIATE JUSTICE CARPIO:
So, you are saying that Radstock can own the rights to ownership of the land?
ATTY. AGRA:
Yes, Your Honors.
ASSOCIATE JUSTICE CARPIO:
Yes?
ATTY. AGRA:
The premise, Your Honor, you mentioned a while ago was, if this Court approves said compromise
(interrupted).102 (Emphasis supplied)
This Court is not, and should never be, a rubber stamp for litigants hankering to pocket public
funds for their selfish private gain. This Court is the ultimate guardian of the public interest, the
last bulwark against those who seek to plunder the public coffers. This Court cannot, and must
never, bring itself down to the level of legitimizer of violations of the Constitution, existing laws or
public policy.
Conclusion
In sum, the acts of the PNCC Board in (1) issuing Board Resolution Nos. BD-092-2000 and BD-
099-2000 expressly admitting liability for the Marubeni loans, and (2) entering into the
Compromise Agreement, constitute evident bad faith and gross inexcusable negligence, amounting
to fraud, in the management of PNCC’s affairs. Being public officers, the government nominees in
the PNCC Board must answer not only to PNCC and its stockholders, but also to the Filipino
people for grossly mishandling PNCC’s finances.
Under Article 1409 of the Civil Code, the Compromise Agreement is "inexistent and void from the
beginning," and "cannot be ratified," thus:
Art. 1409. The following contracts are inexistent and void from the beginning:
(1) Those whose cause, object or purpose is contrary to law, morals, good customs, public
order or public policy;
xxx
(7) Those expressly prohibited or declared void by law.
These contracts cannot be ratified. x x x. (Emphasis supplied)
The Compromise Agreement is indisputably contrary to the Constitution, existing laws and public
policy. Under Article 1409, the Compromise Agreement is expressly declared void and "cannot be
ratified." No court, not even this Court, can ratify or approve the Compromise Agreement. This Court
must perform its duty to defend and uphold the Constitution, existing laws, and fundamental public
policy. This Court must not shirk in declaring the Compromise Agreement inexistent and void ab
initio.
WHEREFORE, we GRANT the petition in G.R. No. 180428. We SET ASIDE the Decision dated 25
January 2007 and the Resolutions dated 12 June 2007 and 5 November 2007 of the Court of Appeals.
We DECLARE (1) PNCC Board Resolution Nos. BD-092-2000 and BD-099-2000 admitting liability
for the Marubeni loans VOID AB INITIO for causing undue injury to the Government and giving
unwarranted benefits to a private party, constituting a corrupt practice and unlawful act under Section
3(e) of the Anti-Graft and Corrupt Practices Act, and (2) the Compromise Agreement between the
Philippine National Construction Corporation and Radstock Securities Limited INEXISTENT AND
VOID AB INITIO for being contrary to Section 29(1), Article VI and Sections 3 and 7, Article XII of
the Constitution; Section 20(1), Chapter IV, Subtitle B, Title I, Book V of the Administrative Code of
1987; Sections 4(2), 79, 84(1), and 85 of the Government Auditing Code; and Articles 2241, 2242,
2243 and 2244 of the Civil Code.
We GRANT the intervention of Asiavest Merchant Bankers Berhad in G.R. No. 178158 but
DECLARE that Strategic Alliance Development Corporation has no legal standing to sue.
SO ORDERED.
G.R. No. 130656               June 29, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ARMANDO REANZARES* also known as ARMANDO RIANZARES, accused-appellant.
BELLOSILLO, J.:
This case is with us on automatic review of the 26 May 1997 Decision1 of the Regional Trial Court of
Tanauan, Batangas, finding accused ARMANDO REANZARES also known as "Armando Rianzares"
guilty of Highway Robbery with Homicide under PD 5322 and sentencing him to the extreme penalty
of death. He was also ordered to pay the heirs of his victim Lilia Tactacan P172,000.00 for funeral,
burial and related expenses, P50,000.00 as indemnity for death, P1,000.00 for the cash taken from
her bag, and to reimburse Gregorio Tactacan P2,500.00 for the Seiko wristwatch taken from
him.1âwphi1.nêt
The facts, except as to the identity of accused Armando Reanzares, are undisputed. Spouses
Gregorio Tactacan and Lilia Tactacan owned a sari-sari store in San Miguel, Sto. Tomas, Batangas.
On 10 May 1994 at around 8:10 in the evening, the Tactacan spouses closed their store and left for
home in Barangay San Roque, Sto. Tomas, Batangas on board their passenger-type jeepney. As
Gregorio was maneuvering his jeep backwards from where it was parked two (2) unidentified men
suddenly climbed on board. His wife Lilia immediately asked them where they were going and
they answered that they were bound for the town proper. When Lilia informed them that they were
not going to pass through the town proper, the two (2) said they would just get off at the nearest
intersection. After negotiating some 500 meters, one of the hitchhikers pointed a .38 caliber
revolver at Gregorio while the other poked a balisong at Lilia's neck and ordered Gregorio to stop
the vehicle. Two (2) other persons, one of whom was later identified as accused Armando
Reanzares, were seen waiting for them at a distance. As soon as the vehicle stopped, the accused
and his companion/approached the vehicle. Gregorio was then pulled from the driver's seat to the
back of the vehicle. They gagged and blindfolded him and tied his hands and feet. They also took
his Seiko wristwatch worth P2,500.00. The accused then drove the vehicle after being told by one
of them, "Sige i-drive mo na."3
Gregorio did not know where they were headed for as he was blindfolded. After several minutes,
he felt the vehicle making a u-turn and stopped after ten (10) minutes. During the entire trip, his
wife kept uttering, "Maawa kayo sa amin, marami kaming anak, kunin nyo na lahat ng gusto
ninyo." Immediately after the last time she uttered these words a commotion ensued and Lilia was
heard saying, "aray!" Gregorio heard her but could not do anything. After three (3) minutes the
commotion ceased. Then he heard someone tell him, "Huwag kang kikilos diyan, ha," and left.
Gregorio then untied his hands and feet, removed his gag and blindfold jumped out of the vehicle.
The culprits were all gone, including his wife. He ran to San Roque East shouting for help.4
When Gregorio returned to the crime scene, the jeepney was still there. He went to the driver's
seat. There he saw his wife lying on the floor of the jeepney with blood splattered all over her
body. Her bag containing P1,200.00 was missing. He brought her immediately to the C.P. Reyes
Hospital where she was pronounced dead on arrival.5
At the time of her death Lilia Tactacan was forty-eight (48) years old. According to Gregorio, he
was deeply depressed by her death; that he incurred funeral, burial and other related expenses, and
that his wife was earning P3,430.00 a month as a teacher.6
Dr. Lily D. Nunes, Medical Health Officer of Sto. Tomas, Batangas, conducted a post-mortem
examination on the body of the victim. Her medical report disclosed that the victim sustained eight
(8) stab wounds on the chest and abdominal region of the body. She testified that a sharp pointed
object like a long knife could have caused those wounds which must have been inflicted by more than
one (1) person, and that all those wounds except the non-penetrating one caused the immediate death
of the victim.7
Subsequently, two (2) informations were filed against accused Armando Reanzares and three (3) John
Does in relation to the incident. The first was for violation of PD 532 otherwise known as the Anti-
Piracy and Anti-Highway Robbery Law of 1974 for allegedly conspiring, with intent to gain and
armed with bladed weapons and a .38 caliber revolver, to rob and carry away one (1) Seiko wristwatch
owned by Gregorio Tactacan and P1,000.00 cash of Lilia Tactacan, and on the occasion thereof, killed
her. The second was for violation of RA 6538, An Act Preventing and Penalizing Carnapping, for
taking away by means of violence and intimidation of persons one (1) passenger-type jeepney with
Plate No. DBP 235 owned and driven by Gregorio Tactacan and valued at P110,000.00. Only the
accused Armando Reanzares was arrested. The other three (3) have remained unidentified and at large.
The accused testified in his defense and claimed that he could not have perpetrated the crimes imputed
to him with three (3) others as he was in Barangay Tagnipa, Garchitorena, Camarines Sur, for the
baptism of his daughter Jessica when the incident happened.8 His father, Jose Reanzares, corroborated
his story. Jose claimed that the accused borrowed P500.00 from him for the latter's trip to Bicol
although he could not say that he actually saw the accused leave for his intended destination. 9 To
bolster the alibi of the accused, his brother Romeo Reanzares also took the witness stand and alleged
that he saw the accused off on 9 May 1994, the day before the incident. Romeo maintained that he
accompanied the accused to the bus stop that day and even helped the latter carry his things to the bus.
He however could not categorically state where and when the accused alighted or that he in fact
reached Bicol. 10
On 26 May 1997 the trial court found the prosecution's evidence credible and ruled that the alibi of the
accused could not prevail over his positive identification by complaining witness Gregorio Tactacan.
The court a quo declared him guilty of Highway Robbery with Homicide under PD 532 and sentenced
him to death. It further ordered him to pay the heirs of Lilia Tactacan P50,000.00 as indemnity for
death, P172,000.00 for funeral, burial and related expenses, and P1,000.00 for the cash taken from her
bag. The accused was also ordered to reimburse Gregorio Tactacan P2,500.00 for the Seiko wristwatch
taken from him. 11 But the trial court exonerated the accused from the charge of carnapping under RA
6539 for insufficiency of evidence.
The accused insists before us that his conviction for Highway Robbery with Homicide under PD 532
is erroneous as his guilt was not proved beyond reasonable doubt. He claims that the testimony of
private complainant Gregorio Tactacan, who implicated him as one of the perpetrators of the crime, is
incredible. He maintains that Gregorio failed to identify him because when the latter was questioned
he stated that he did not know any of the culprits. He also claims that in the publication of Hotline by
Tony Calvento in People's Tonight, Gregorio even asked the readers to help him identify the
malefactors.
The trial court observed that Gregorio Tactacan testified in a categorical, straightforward,
spontaneous and frank manner, and was consistent on cross-examination. Indeed, Gregorio might
not have immediately revealed the name of accused Armando Reanzares to the police authorities
when he was first investigated but the delay was not an indication of a fabricated charge and
should not undermine his credibility considering that he satisfactorily explained his reasons
therefor. According to him, he did not immediately tell the police about the accused because he
feared for the safety of his family as his neighbors told him that they saw some people lurking
around his house on the day of the incident. Moreover, he was advised not to mention any names
until after the burial of his wife. No ill motive could be attributed to him for implicating the
accused. If at all, the fact that his wife died by reason of the incident even lends credence to his
testimony since his natural interest in securing the conviction of the guilty would deter him from
implicating persons other than the real culprits, otherwise, those responsible for the perpetration of
the crime would escape prosecution.
To further undermine the credibility of Gregorio, the accused underscores Gregorio's refusal to be
subjected to a lie detector test. We cannot subscribe to this contention as the procedure of
ascertaining the truth by means of a lie detector test has never been accepted in our jurisdiction;
thus, any findings based thereon cannot be considered conclusive.
Finally, the accused chides Gregorio for supposedly suppressing a very material piece of evidence,
i.e., the latter failed to present as witnesses a certain Renato and his wife who allegedly saw the
holduppers running away from the crime scene. But this is only a disputable presumption under
Sec. 3, par. (e), Rule 131, of the Rules of Court on evidence, which does not apply in the present
case as the evidence allegedly omitted is equally accessible and available to the defense.
These attempts of the accused to discredit Gregorio obviously cannot hold ground. Neither can
they bolster his alibi. For alibi to be believed it must be shown that (a) the accused was in another
place at the time of the commission of the offense, and (b) it was physically impossible for him to
be at the crime scene. 12
In this case, the accused claims to have left for Bicol the day before the incident. To prove this, he
presented his father and brother but their testimonies did not meet the requisite quantum to
establish his alibi. While his father testified that the accused borrowed money from him for his fare
to Bicol for the baptism of a daughter, he could not say whether the accused actually went to Bicol.
As regards the claim of Romeo, brother of the accused, that he accompanied the accused to the bus
stop on 9 May 1994 and even helped him with his things, seeing the accused off is not the same as
seeing him actually get off at his destination. Given the circumstances of this case, it is possible for
the accused to have alighted from the bus before reaching Bicol, perpetrated the crime in the
evening of 10 May 2000, proceeded to Bicol and arrived there on 12 May 2000 for his daughter's
baptism.
Thus the trial court was correct in disregarding the alibi of the accused not only because he was
positively identified by Gregorio Tactacan but also because it was not shown that it was physically
impossible for him to be at the crime scene on the date and time of the incident.
Indeed the accused is guilty. But that the accused was guilty of Highway Robbery with Homicide
under PD 532 was erroneous. As held in a number of cases, conviction for highway robbery requires
proof that several accused were organized for the purpose of committing it indiscriminately. 1 There is
no proof in the instant case that the accused and his cohorts organized themselves to commit highway
robbery. Neither is there proof that they attempted to commit similar robberies to show the
"indiscriminate" perpetration thereof. On the other hand, what the prosecution established was only a
single act of robbery against the particular persons of the Tactacan spouses. Clearly, this single act of
depredation is not what is contemplated under PD 532 as its objective is to deter and punish lawless
elements who commit acts of depredation upon persons and properties of innocent and defenseless
inhabitants who travel from one place to another thereby disturbing the peace and tranquility of the
nation and stunting the economic and social progress of the people.1avvphil
Consequently, the accused should be held liable for the special complex crime of robbery with
homicide under Art. 294 of the Revised Penal Code as amended by RA 7659 14 as the allegation in
the Information are enough to convict him therefor. In the interpretation of an information, what
controls is the description of the offense charged and not merely its designation. 15
Art. 294, par. (1) of the Revised Penal Code as amended punishes the crime of robbery with homicide
by reclusion perpetua to death. Applying Art. 63, second par., subpar. 2, of the Revised Penal Code
which provides that "[i]n all cases in which the law prescribes a penalty composed of two indivisible
penalties, the following rules shall be observed in the application thereof: . . . 2. [w]hen there are
neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty
shall be applied," the lesser penalty of reclusion perpetua is imposed in the absence of any modifying
circumstance.
As to the damages awarded by the trial court to the heirs of the victim, we sustain the award of
P50,000.00 as civil indemnity for the wrongful death of Lilia Tactacan. In addition, the amount of
P50,000.00 as moral damages is ordered. Also, damages for loss of earning capacity of Lilia Tactacan
must be granted to her heirs. The testimony of Gregorio Tactacan, the victim's husband, on the earning
capacity of his wife, together with a copy of his wife's payroll, is enough to establish the basis for the
award. The formula for determining the life expectancy of Lilia Tactacan, applying the American
Expectancy Table of Mortality, is as follows: 2/3 multiplied by (80 minus the age of the deceased). 16
Since Lilia was 48 years of age at the time of her death, 17 then her life expectancy was 21.33 years.
At the time of her death, Lilia was earning P3,430.00 a month as a teacher at the San Roque
Elementary School so that her annual income was P41,160.00. From this amount, 50% should be
deducted as reasonable and necessary living expenses to arrive at her net earnings. Thus, her net
earning capacity was P438,971.40 computed as follows: Net earning capacity equals life
expectancy times gross annual income less reasonable and necessary living expenses —
Net earning reasonable &
life gross annual
capcity = x - necessary; living
expectancy income
(x) expenses
2 (80-48)
x = x [P41,164.00 - P20,580.00]
3
= 21.33 x P20,580.00
= P438,971.40
However, the award of P1,000.00 representing the cash taken from Lilia Tactacan must be
increased to P1,200.00 as this was the amount established by the prosecution without objection
from the defense. The award of P172,000.00 for funeral, burial and related expenses must be
reduced to P22,000.00 as this was the only amount sufficiently substantiated. 18 There was no
other competent evidence presented to support the original award.
The amount of P2,500.00 as reimbursement for the Seiko wristwatch taken from Gregorio
Tactacan must be deleted in the absence of receipts or any other competent evidence aside from the
self-serving valuation made by the prosecution. An ordinary witness cannot establish the value of
jewelry and the trial court can only take judicial notice of the value of goods which is a matter of
public knowledge or is capable of unquestionable demonstration. The value of jewelry therefore
does not fall under either category of which the court can take judicial notice. 19
WHEREFORE, the Decision appealed from is MODIFIED. Accused ARMANDO REANZARES
also known as "Armando Rianzares" is found GUILTY beyond reasonable doubt of Robbery with
Homicide under Art. 294 of the Revised Penal Code as amended and is sentenced to reclusion
perpetua. He is ordered to pay the heirs of the victim P50,000.00 as indemnity for death, another
P50,000.00 for moral damages, P1,200.00 for actual damages, P438,971.40 for loss of earning
capacity, and P22,000.00 for funeral, burial and related expenses. Costs de oficio.
SO ORDERED.1âwphi1.nêt
G.R. Nos. 135695-96               October 12, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, WHEREFORE, foregoing premises considered, Joint Judgment is hereby rendered, to wit:
vs.
I. In Criminal Case No. DU-6186 -
TOMAS TUNDAG, accused-appellant.
a) Finding the herein accused TOMAS TUNDAG guilty beyond reasonable doubt
DECISION
for the crime of rape, said accused is hereby sentenced to the penalty of death;
QUISUMBING, J.:
b) To indemnify the offended party Mary Ann Tundag the following amounts:
For automatic review is the judgment of the Regional Trial Court of Mandaue City, Branch 28, in
(1) P50,000.00 by reason of the commission of the offense of rape upon
Criminal Cases Nos.DU-6186 and DU-6203, finding appellant Tomas Tundag guilty of two counts of
her; and
incestuous rape and sentencing him to death twice.
(2) Another P50,000.00 as moral and exemplary damages under Article
On November 18, 1997, private complainant Mary Ann Tundag filed with the Mandaue City
2219 in relation to Articles 2217 and 2230 of the New Civil Code for the
Prosecutor’s Office two separate complaints for incestuous rape. The first complaint, docketed as
pain and moral shock suffered by her and for the commission of the crime
Criminal Case No. DU-6186, alleged:
of rape with one qualifying aggravating circumstance; and
That on or about the 5th day of September, 1997, in the City of Mandaue, Philippines, and within the
c) To pay the costs.
jurisdiction of this Honorable Court, the above-named accused, being the father of complainant
MARY ANN TUNDAG, who is a 13-year-old girl, with deliberate intent, did then and there wilfully, II. In Criminal Case No. DU-6203 -
unlawfully and feloniously have sexual intercourse with the said offended party against the latter’s
a) Finding the herein accused TOMAS TUNDAG guilty beyond reasonable doubt
will.
for the crime of rape, said accused is hereby sentenced to the penalty of death;
CONTRARY TO LAW.1
b) To indemnify the offended party Mary Ann Tundag the following amounts:
The other, docketed as Criminal Case No. DU-6203, averred:
(1) P50,000.00 by reason of the commission of the offense of rape upon her; and
That on or about the 7th day of November, 1997, in the City of Mandaue, Philippines, and within the
(2) Another P50,000.00 as moral and exemplary damages under Article 2219 in
jurisdiction of this Honorable Court, the above-named accused, being the father of complainant
relation to Articles 2217 and 2230 of the New Civil Code for the pain and moral
MARY ANN TUNDAG, who is a 13-year-old girl, with deliberate intent, did then and there wilfully,
shock suffered by her and for the commission of the crime of rape with one
unlawfully and feloniously have sexual intercourse with the said offended party against the latter’s
qualifying aggravating circumstance; and
will.
(3) To pay the costs.
CONTRARY TO LAW.2
SO ORDERED.4
Upon arraignment appellant, assisted by counsel de parte, pleaded "Not Guilty" to the charges.
In its judgment, the court below gave credence to complainant’s version of what accused did to her.
The two cases were consolidated and a joint trial ensued.
The evidence for the prosecution as adduced during the trial on the merits clearly shows that
Appellant’s defense was bare denial. He claimed that private complainant had fabricated the rape
private complainant Mary Ann Tundag is a 13 year old girl who does not know how to read and
charges against him since he and his daughter, "had a quarrel when he accordingly reprimanded her
write and has an IQ of 76% which is a very low general mental ability and was living with her
for going out whenever he was not at home."3
father, the herein accused, at Galaxy Compound, Mandaue City.
Appellant did not present any witness to reinforce his testimony.
xxx
On August 31, 1998, the trial court rendered its decision, thus:
That on September 5, 1997 at about 10:00 o’clock in the evening, she was in the house together with
her father. But before she went to sleep, her father was already lying down on the mat while herself
(sic) just lied down at his head side which was not necessarily beside him. However, when she was
already sleeping, she noticed that her father who was already undressed was beside her and was
embracing her. Then, he undressed her which she resisted but her father used a knife and told her that
he would kill her if she shouts and after that, he inserted his penis into her vagina and told her not to
shout or tell anyone. In effect, his penis penetrated her genital, which made her vagina bleed and was
very painful.
That when the penis of her father was already inserted in her vagina, her father was all the time asking
by saying (sic) : ‘Does it feel good?’ And at the same time, he was laughing and further, told her that a
woman who does not marry can never enter heaven and he got angry with her when she contradicted
his statement.
That while the penis of her father was inside her vagina and (he) was humping over her, she felt
intense pain that she cried and told him to pull it out but did not accede and in fact, said: ‘Why will I
pull it out when it feels so good(?)’
That after removing his penis from her vagina and after telling her that she could not go to heaven if
she did not get married, her father just stayed there and continued smoking while she cried.
That in the evening of November 7, 1997, she was at home washing the dishes while her father was
just smoking and squatting. That after she finished washing the dishes, she lied (sic) down to sleep
when her father embraced her and since she does not like what he did to her, she placed a stool
between them but he just brushed it aside and laid down with her and was able to take her womanhood
again by using a very sharp knife which he was holding and was pointing it at the right side of her
neck which made her afraid.
That in the early morning of the following day, she left her father’s place and went to her neighbor by
the name of Bebie Cabahug and told her what had happened to her, who, in turn, advised her to report
the matter to the police, which she did and accompanied by the policemen, she went to the Southern
Islands Hospital where she was examined and after her medical examination, she was brought back by
the police and was investigated by them."5
Appellant’s claim that the complainant’s charges were manufactured did not impress the trial court,
which found him twice guilty of rape. Now before us, appellant assails his double conviction, simply
contending that:6
THE TRIAL COURT HAS COMMITTED AN ERROR IN NOT ABSOLVING THE ACCUSED-
APPELLANT OF THE CRIMES CHARGED IN THE INFORMATIONS DESPITE THE
PRESENCE OF REASONABLE DOUBT TO EXCULPATE HIM OF THE SAME.
Appellant flatly denies that the incidents complained of ever took place. He contends that on
September 5, 1997, he was working as a watch repairman near Gal’s Bakery in Mandaue City
Market and went home tired and sleepy at around 11:00 o’clock that evening. On November 7,
1997, he claims he was at work. In his brief, he argues that it was impossible for him to have raped
his daughter because when the incidents allegedly transpired, "he went to work and naturally, being
exhausted and tired, it is impossible for him to do such wrongdoings."7
The Office of the Solicitor General disagrees with appellant and urges the Court to affirm the trial
court’s decision, with the recommendation that the award of damages and indemnity ex delicto be
modified to conform to prevailing jurisprudence.
Considering the gravity of the offense charged as a heinous crime and the irreversibility of the
penalty of death imposed in each of these cases before us, the Court leaves no stone unturned in its
review of the records, including the evidence presented by both the prosecution and the defense.
Conviction must rest on nothing less than a moral certainty of guilt.8 But here we find no room to
disturb the trial court’s judgment concerning appellant’s guilt, because his defense is utterly
untenable.
Appellant’s defense of alibi and denial is negative and self-serving. It hardly counts as a worthy
and weighty ground for exculpation in a trial involving his freedom and his life. Against the
testimony of private complainant who testified on affirmative matters,9 such defense is not only
trite but pathetic. Denial is an inherently weak defense, which becomes even weaker in the face of
the positive identification by the victim of the appellant as the violator of her honor.10 Indeed, we
find that private complainant was unequivocal in charging appellant with ravishing her. The
victim’s account of the rapes complained of was straightforward, detailed, and consistent.11 Her
testimony never wavered even after it had been explained to her that her father could be meted out
the death penalty if found guilty by the court.12
In a prosecution for rape, the complainant’s credibility is the single most important issue.13 The
determination of the credibility of witnesses is primarily the function of the trial court. The
rationale for this is that the trial court has the advantage of having observed at first hand the
demeanor of the witnesses on the stand and, therefore, is in a better position to form an accurate
impression and conclusion.14 Absent any showing that certain facts of value have clearly been
overlooked, which if considered could affect the result of the case, or that the trial court’s finding
are clearly arbitrary, the conclusions reached by the court of origin must be respected and the
judgment rendered affirmed.15
Moreover, we note here that private complainant’s testimony is corroborated by medical findings
that lacerations were present in her hymen. The examination conducted by Dr. Bessie Acebes upon
the private complainant yielded the following results:
 Genitalia: grossly female to consider the charges filed against him as the result of his frequent castigation of her delinquent
behavior.20
Pubic Hairs: scanty
Such allegation of a family feud, however, does not explain the charges away. Filing a case for
Labia Majora: coaptated
incestuous rape is of such a nature that a daughter’s accusation must be taken seriously. It goes
Labia Minora: -do- against human experience that a girl would fabricate a story which would drag herself as well as
her family to a lifetime of dishonor, unless that is the truth, for it is her natural instinct to protect
Fourchette: U-shaped
her honor.21 More so, where her charges could mean the death of her own father, as in this case.
Vestibule: pinkish
Appellant likewise points out that it was very unlikely for him to have committed the crimes
Hymen: + old healed laceration at 3 and 9 o’clock position(s). imputed to him considering that he and his wife had ten children to attend to and care for. This
argument, however, is impertinent and immaterial. Appellant was estranged from his wife, and
Orifice: admits 2 fingers with ease
private complainant was the only child who lived with him.22 As pointed out by the Solicitor
Vagina: General, appellant was thus "free to do as he wished to satisfy his bestial lust on his daughter."23

Walls: pinkish Nor does appellant’s assertion that private complainant has some psychological problems and a
low IQ of 76 in any way favor his defense. These matters did not affect the credibility of her
Ruganities: prominent
testimony that appellant raped her twice. We note that the victim understood the consequences of
Uterus: small prosecuting the rape charges against her own father, as shown by the following testimony of the
victim on cross-examination:
Cervix: closed
Q : Were you informed that if, and when your father will be found guilty, your father will be
Discharges: Mucoid, minimal
sentenced to death?
Smears:
A : Yes.
Conclusions: sperm identification (-)
Q : Until now you wanted that your father will be sentenced by death?
Gram staining of vaginal disc.16
A (Witness nodding.)
Dr. Acebes testified that her findings of healed hymenal lacerations in the complainant’s private parts
xxx
meant a history of sexual congress on her part.17 According to her, the lacerations may have been
caused by the entry of an erect male organ into complainant’s genitals. The examining physician Q : I will inform you, Miss Witness, that you have filed two cases against your father and in case
likewise pointed out that previous coitus may be inferred from complainant’s U-shaped fourchette your father would be found guilty, two death sentences will be imposed against him?
since the fourchette of a female who has not yet experienced sexual intercourse is V-shaped.18 While
A: Yes.
Dr. Acebes conceded under cross-examination, that the existence of the datum "U-shape(d) fourchette
does not conclusively and absolutely mean that there was sexual intercourse or contact because it can Q: With that information, do you still want this case would proceed?
be caused by masturbation of fingers or other things,"19 nonetheless, the presence of the hymenal
A: I want this to proceed.24
lacerations tends to support private complainant’s claim that she was raped by appellant.
Indeed, appellant is guilty. But is the penalty of death imposed on him correct?
Appellant next contends that his daughter pressed the rape charges against him because she had
quarreled with him after he had castigated her for misbehavior. He stresses that the prosecution did not Section 335 of the Revised Penal Code, as amended by Section 11 of R.A. No. 7659,25 penalizes
rebut his testimony regarding his quarrel or misunderstanding with private complainant. He urges us rape of a minor daughter by her father as qualified rape26 and a heinous crime. In proving such
felony, the prosecution must allege and prove the elements of rape: (1) sexual congress; (2) with
woman; (3) by force or without her consent27 and in order to warrant the imposition of capital
punishment, the additional elements that: (4) the victim is under 18 years of age at the time of the rape
and (5) the offender is a parent of the victim.28
In this case, it was sufficiently alleged and proven that the offender was the victim’s father.29 But the
victim’s age was not properly and sufficiently proved beyond reasonable doubt. She testified that she
was thirteen years old at the time of the rapes. However, she admitted that she did not know exactly
when she was born because her mother did not tell her. She further said that her birth certificate was
likewise with her mother. In her own words, the victim testified - 30
COURT TO WITNESS
Q: When were you born?
A: I do not know.
Q: You do not know your birthday?
A: My mama did not tell me exactly when I asked her.
COURT: Proceed.
FISCAL PEREZ: For our failure to secure the Birth Certificate Your Honor, may we just request for
judicial notice that the victim here is below 18 years old.
ATTY. SURALTA: Admitted. …
Judicial notice is the cognizance of certain facts which judges may properly take and act on without
proof because they already know them.31 Under the Rules of Court, judicial notice may either be
mandatory or discretionary. Section 1 of Rule 129 of the Rules of Court provides when court shall
take mandatory judicial notice of facts -
SECTION 1. Judicial notice, when mandatory. - A court shall take judicial notice without the
introduction of evidence, of the existence and territorial extent of states, their political history, forms
of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the
world and their seals, the political constitution and history of the Philippines, the official acts of the
legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of
time, and the geographical divisions.
Section 2 of Rule 129 enumerates the instances when courts may take discretionary judicial notice of
facts -
SEC. 2. Judicial notice, when discretionary. - A court may take judicial notice of matters which are
of public knowledge, or are capable of unquestionable demonstration or ought to be known to
judges because of their judicial functions.
Thus, it can be considered of public knowledge and judicially noticed that the scene of the rape is
not always nor necessarily isolated or secluded for lust is no respecter of time or place. The offense
of rape can and has been committed in places where people congregate, e.g. inside a house where
there are occupants, a five (5) meter room with five (5) people inside, or even in the same room
which the victim is sharing with the accused’s sister.32
The Court has likewise taken judicial notice of the Filipina’s inbred modesty and shyness and her
antipathy in publicly airing acts which blemish her honor and virtue.33
On the other hand, matters which are capable of unquestionable demonstration pertain to fields of
professional and scientific knowledge. For example, in People v. Alicante,34 the trial court took
judicial notice of the clinical records of the attending physicians concerning the birth of twin baby
boys as "premature" since one of the alleged rapes had occurred 6 to 7 months earlier.
As to matters which ought to be known to judges because of their judicial functions, an example
would be facts which are ascertainable from the record of court proceedings, e.g. as to when court
notices were received by a party.
With respect to other matters not falling within the mandatory or discretionary judicial notice, the
court can take judicial notice of a fact pursuant to the procedure in Section 3 of Rule 129 of the
Rules of Court which requires that -
SEC. 3. Judicial notice, when hearing necessary. - During the trial, the court, on its own initiative,
or on request of a party, may announce its intention to take judicial notice of any matter and allow
the parties to be heard thereon.
After the trial, and before judgment or on appeal, the proper court, on its own initiative or on
request of a party, may take judicial notice of any matter and allow the parties to be heard thereon
if such matter is decisive of a material issue in the case.
In this case, judicial notice of the age of the victim is improper, despite the defense counsel’s
admission, thereof acceding to the prosecution’s motion. As required by Section 3 of Rule 129, as
to any other matters such as age, a hearing is required before courts can take judicial notice of such
fact. Generally, the age of the victim may be proven by the birth or baptismal certificate of the
victim, or in the absence thereof, upon showing that said documents were lost or destroyed, by
other documentary or oral evidence sufficient for the purpose.
Thus, in People v. Rebancos, 172 SCRA 426 (1989), the victim was below 12 and we found that
the rape committed was statutory rape. The mother testified that her daughter was born on October
26, 1974, and so was only 9 years old at the time of the rape on February 12, 1984. Although no birth As to civil indemnity, the trial court correctly awarded P50,000.00 for each count of rape as civil
certificate was presented because the victim’s birth had allegedly not been registered, her baptismal indemnity. However, the award of another P50,000.00 as "moral and exemplary damages under
certificate was duly presented. Hence, we ruled that the mother’s testimony coupled with the Article 2219 in relation to Articles 2217 and 2230 of the Civil Code" for each count is imprecise.
presentation of the baptismal certificate was sufficient to establish that the victim was below 12 at the In rape cases, the prevailing jurisprudence permits the award of moral damages without need for
time of the rape. pleading or proof as to the basis thereof.38 Thus, pursuant to current jurisprudence, we award the
amount of P50,000.00 as moral damages for each count of rape.
However, in People v. Vargas, 257 SCRA 603 (1996), we ruled that appellant can only be convicted of
simple rape, and not statutory rape, because of failure of the prosecution to prove the minority of the The award of exemplary damages separately is also in order, but on a different basis and for a
victim, who was allegedly 10 years old at the time of the rape.1âwphi1 The prosecution failed to different amount. Appellant being the father of the victim, a fact duly proved during trial, we find
present either the birth or baptismal certificate of the victim. Also there was no showing that the said that the alternative circumstance of relationship should be appreciated here as an aggravating
documents were lost or destroyed to justify their non-presentation. We held that testimony of the circumstance. Under Article 2230 of the New Civil Code, exemplary damages may be imposed
victim and her aunt were hearsay, and that it was not correct for the trial court to judge the age of the when the crime was committed with one or more aggravating circumstances. Hence, we find an
victim by her appearance. award of exemplary damages in the amount of P25,000.00 proper. Note that generally, in rape
cases imposing the death penalty, the rule is that relationship is no longer appreciated as a generic
In several recent cases, we have emphasized the need for independent proof of the age of the victim,
aggravating circumstance in view of the amendments introduced by R.A. Nos. 7659 and 8353. The
aside from testimonial evidence from the victim or her relatives. In People v. Javier,35 we stressed
father-daughter relationship has been treated by Congress in the nature of a special circumstance
that the prosecution must present independent proof of the age of the victim, even though it is not
which makes the imposition of the death penalty mandatory.39 However, in this case, the special
contested by the defense. The minority of the victim must be proved with equal certainty and clearness
qualifying circumstance of relationship was proved but not the minority of the victim, taking the
as the crime itself. In People v. Cula,36 we reiterated that it is the burden of the prosecution to prove
case out of the ambit of mandatory death sentence. Hence, relationship can be appreciated as a
with certainty the fact that the victim was below 18 when the rape was committed in order to justify
generic aggravating circumstance in this instance so that exemplary damages are called for. In
the imposition of the death penalty. Since the record of the case was bereft of any independent
rapes committed by fathers on their own daughters, exemplary damages may be imposed to deter
evidence thereon, such as the victim’s duly certified Certificate of Live Birth, accurately showing
other fathers with perverse tendency or aberrant sexual behavior from sexually abusing their own
private complainant’s age, appellant could not be convicted of rape in its qualified form. In People v.
daughters.40
Veloso,37 the victim was alleged to have been only 9 years of age at the time of the rape. It held that
the trial court was correct when it ruled that the prosecution failed to prove the victim’s age other than WHEREFORE, the judgment of the Regional Trial Court of Mandaue City, Branch 28, in
through the testimony of her father and herself. Criminal Case Nos. DU-6186 and DU-6203, is hereby MODIFIED as follows: appellant Tomas
Tundag is found guilty of two (2) counts of simple rape; and for each count, sentenced to reclusion
Considering the statutory requirement in Section 335 of the Revised Penal Code as amended by R.A.
perpetua and ordered to pay the victim the amount of P50,000.00 as indemnity, P50,000.00 as
No. 7659 and R.A. No. 8353, we reiterate here what the Court has held in Javier without any dissent,
moral damages, and P25,000.00 as exemplary damages.
that the failure to sufficiently establish victim’s age by independent proof is a bar to conviction for
rape in its qualified form. For, in the words of Melo, J., "independent proof of the actual age of a rape No pronouncement as to costs.
victim becomes vital and essential so as to remove an ‘iota of doubt’ that the case falls under the
SO ORDERED.
qualifying circumstances" for the imposition of the death penalty set by the law.
In this case, the first rape was committed on September 5, 1997 and is therefore governed by the death
penalty law, R.A. 7659. The penalty for the crime of simple rape or rape in its unqualified form under
Art. 335 of the Revised Penal Code, as amended by Sec. 11 of R.A. 7659, is reclusion perpetua. The
second rape was committed on November 7, 1997, after the effectivity of R.A. 8353, also known as
the Anti-Rape Law of 1997, which took effect on October 22, 1997. The penalty for rape in its G.R. No. 114776           February 2, 2000
unqualified form remains the same.
MENANDRO B. LAUREANO, petitioner,
vs.
COURT OF APPEALS AND SINGAPORE AIRLINES LIMITED, respondents.
QUISUMBING, J.:
This petition for review on certiorari under Rule 45 of the Rules of Court seeks to reverse the
Decision of the Court of Appeals, dated October 29, 1993, in C.A. G.R. No. CV 34476, as well as its
Resolution dated February 28, 1994, which denied the motion for reconsideration.
The facts of the case as summarized by the respondent appellate court are as follows:
Sometime in 1978, plaintiff [Menandro B. Laureano, herein petitioner], then Director of
Flight Operations and Chief Pilot of Air Manila, applied for employment with defendant
company [herein private respondent] through its Area Manager in Manila.
On September 30, 1978, after the usual personal interview, defendant wrote to plaintiff,
offering a contract of employment as an expatriate B-707 captain for an original period of two
(2) years commencing on January 21, 1978. Plaintiff accepted the offer and commenced
working on January 20, 1979. After passing the six-month probation period, plaintiffs
appointment was confirmed effective July 21, 1979. (Annex "B", p. 30, Rollo).
On July 21, 1979, defendant offered plaintiff an extension of his two-year contract to five (5)
years effective January 21, 1979 to January 20, 1984 subject to the terms and conditions set
forth in the contract of employment, which the latter accepted (Annex "C" p. 31, Rec.).
During his service as B-707 captain, plaintiff on August 24, 1980, while in command of a
flight, committed a noise violation offense at the Zurich Airport, for which plaintiff
apologized.(Exh. "3", p. 307, Rec.).
Sometime in 1980, plaintiff featured in a tail scraping incident wherein the tail of the aircraft
scraped or touched the runway during landing. He was suspended for a few days until he was
investigated by board headed by Capt. Choy. He was reprimanded.
On September 25, 1981, plaintiff was invited to take a course of A-300 conversion training at
Aeroformacion, Toulouse, France at dependant's expense. Having successfully completed and
passed the training course, plaintiff was cleared on April 7, 1981, for solo duty as captain of
the Airbus A-300 and subsequently appointed as captain of the A-300 fleet commanding an
Airbus A-300 in flights over Southeast Asia. (Annexes "D", "E" and "F", pp. 34-38, Rec.).
Sometime in 1982, defendant, hit by a recession, initiated cost-cutting measures. Seventeen
(17) expatriate captains in the Airbus fleet were found in excess of the defendant's
requirement (t.s.n., July 6, 1988. p. 11). Consequently, defendant informed its expatriate pilots
including plaintiff of the situation and advised them to take advance leaves. (Exh. "15", p.
466, Rec.)
Realizing that the recession would not be for a short time, defendant decided to terminate
its excess personnel (t.s.n., July 6, 1988, p. 17). It did not, however, immediately terminate
it's A-300 pilots. It reviewed their qualifications for possible promotion to the B-747 fleet.
Among the 17 excess Airbus pilots reviewed, twelve were found qualified. Unfortunately,
plaintiff was not one of the twelve.
On October 5, 1982, defendant informed plaintiff of his termination effective November 1,
1982 and that he will be paid three (3) months salary in lieu of three months notice (Annex
"I", pp. 41-42, Rec.). Because he could not uproot his family on such short notice, plaintiff
requested a three-month notice to afford him time to exhaust all possible avenues for
reconsideration and retention. Defendant gave only two (2) months notice and one (1)
month salary. (t.s.n., Nov. 12, 1987. p. 25).
Aggrieved, plaintiff on June 29, 1983, instituted a case for illegal dismissal before the
Labor Arbiter. Defendant moved to dismiss on jurisdiction grounds. Before said motion
was resolved, the complaint was withdrawn. Thereafter, plaintiff filed the instant case for
damages due to illegal termination of contract of services before the court a quo
(Complaint, pp. 1-10, Rec.).
Again, defendant on February 11, 1987 filed a motion to dismiss alleging inter alia: (1)
that the court has no jurisdiction over the subject matter of the case, and (2) that Philippine
courts have no jurisdiction over the instant case. Defendant contends that the complaint is
for illegal dismissal together with a money claim arising out of and in the course of
plaintiffs employment "thus it is the Labor Arbiter and the NLRC who have the
jurisdiction pursuant to Article 217 of the Labor Code" and that, since plaintiff was
employed in Singapore, all other aspects of his employment contract and/or documents
executed in Singapore. Thus, defendant postulates that Singapore laws should apply and
courts thereat shall have jurisdiction. (pp. 50-69, Rec.).
In traversing defendant's arguments, plaintiff claimed that: (1) where the items demanded
in a complaint are the natural consequences flowing from a breach of an obligation and not
labor benefits, the case is intrinsically a civil dispute; (2) the case involves a question that
is beyond the field of specialization of labor arbiters; and (3) if the complaint is grounded
not on the employee's dismissal per se but on the manner of said dismissal and the
consequence thereof, the case falls under the jurisdiction of the civil courts. (pp. 70-73,
Rec.)
 On March 23, 1987, the court a quo denied defendant's motion to dismiss (pp. 82-84, Ibid).
The motion for reconsideration was likewise denied. (p. 95 ibid.)
On September 16, 1987, defendant filed its answer reiterating the grounds relied upon in its
motion to dismiss and further arguing that plaintiff is barred by laches, waiver, and estoppel
from instituting the complaint and that he has no cause of action . (pp. 102-115)1
On April 10, 1991, the trial court handed down its decision in favor of plaintiff. The dispositive
portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of plaintiff Menandro Laureano and
against defendant Singapore Airlines Limited, ordering defendant to pay plaintiff the amounts
of —
SIN$396,104.00, or its equivalent in Philippine currency at the current rate of exchange at the
time of payment, as and for unearned compensation with legal interest from the filing of the
complaint until fully paid;
SIN$154,742.00, or its equivalent in Philippine currency at the current rate of exchange at the
time of payment; and the further amounts of P67,500.00 as consequential damages with legal
interest from the filing of the complaint until fully paid;
P1,000,000.00 as and for moral damages; P1,000,000.00 as and for exemplary damages; and
P100,000.00 as and for attorney's fees.
Costs against defendant.
SO ORDERED.2
Singapore Airlines timely appealed before the respondent court and raised the issues of jurisdiction,
validity of termination, estoppel, and damages.
On October 29, 1993, the appellate court set aside the decision of the trial court, thus,
. . . In the instant case, the action for damages due to illegal termination was filed by plaintiff-
appellee only on January 8, 1987 or more than four (4) years after the effectivity date of his
dismissal on November 1, 1982. Clearly, plaintiff-appellee's action has already prescribed.
WHEREFORE, the appealed decision is hereby REVERSED and SET ASIDE. The complaint
is hereby dismissed.
SO ORDERED.3
Petitioner's and Singapore Airlines' respective motions for reconsideration were denied.
Now, before the Court, petitioner poses the following queries:
1. IS THE PRESENT ACTION ONE BASED ON CONTRACT WHICH
PRESCRIBES IN TEN YEARS UNDER ARTICLE 1144 OF THE NEW CIVIL
CODE OR ONE FOR DAMAGES ARISING FROM AN INJURY TO THE RIGHTS
OF THE PLAINTIFF WHICH PRESCRIBES IN FOUR YEARS UNDER ARTICLE
1146 OF THE NEW CIVIL CODE?
2. CAN AN EMPLOYEE WITH A FIXED PERIOD OF EMPLOYMENT BE
RETRENCHED BY HIS EMPLOYER?
3. CAN THERE BE VALID RETRENCHMENT IF AN EMPLOYER MERELY
FAILS TO REALIZE THE EXPECTED PROFITS EVEN IF IT WERE NOT, IN
FACT, INCURRING LOSSES?
At the outset, we find it necessary to state our concurrence on the assumption of jurisdiction by the
Regional Trial Court of Manila, Branch 9. The trial court rightly ruled on the application of
Philippine law, thus:
Neither can the Court determine whether the termination of the plaintiff is legal under the
Singapore Laws because of the defendant's failure to show which specific laws of
Singapore Laws apply to this case. As substantially discussed in the preceding paragraphs,
the Philippine Courts do not take judicial notice of the laws of Singapore. The defendant
that claims the applicability of the Singapore Laws to this case has the burden of proof.
The defendant has failed to do so. Therefore, the Philippine law should be applied.4
Respondent Court of Appeals acquired jurisdiction when defendant filed its appeal before said
court.5 On this matter, respondent court was correct when it barred defendant-appellant below
from raising further the issue of jurisdiction.6
Petitioner now raises the issue of whether his action is one based on Article 1144 or on Article
1146 of the Civil Code. According to him, his termination of employment effective November 1,
1982, was based on an employment contract which is under Article 1144, so his action should
prescribe in 10 years as provided for in said article. Thus he claims the ruling of the appellate court
based on Article 1146 where prescription is only four (4) years, is an error. The appellate court
concluded that the action for illegal dismissal originally filed before the Labor Arbiter on June 29,
1983, but which was withdrawn, then filed again in 1987 before the Regional Trial Court, had
already prescribed.
In our view, neither Article 1144 7 nor Article 11468 of the Civil Code is here pertinent. What is
applicable is Article 291 of the Labor Code, viz:
 Art. 291. Money claims. — All money claims arising from employee-employer relations
accruing during the effectivity of this Code shall be filed within three (3) years from the time
the cause of action accrued; otherwise they shall be forever barred.
xxx     xxx     xxx
What rules on prescription should apply in cases like this one has long been decided by this Court. In
illegal dismissal, it is settled, that the ten-year prescriptive period fixed in Article 1144 of the Civil
Code may not be invoked by petitioners, for the Civil Code is a law of general application, while the
prescriptive period fixed in Article 292 of the Labor Code [now Article 291] is a SPECIAL LAW
applicable to claims arising from employee-employer relations.9
More recently in De Guzman vs. Court of Appeals,10 where the money claim was based on a written
contract, the Collective Bargaining Agreement, the Court held:
. . . The language of Art. 291 of the Labor Code does not limit its application only to "money
claims specifically recoverable under said Code" but covers all money claims arising from an
employee-employer relations" (Citing Cadalin v. POEA Administrator, 238 SCRA 721, 764
[1994]; and Uy v. National Labor Relations Commission, 261 SCRA 505, 515 [1996]). . . .
It should be noted further that Article 291 of the Labor Code is a special law applicable to
money claims arising from employer-employee relations; thus, it necessarily prevails over
Article 1144 of the Civil Code, a general law. Basic is the rule in statutory construction that
"where two statutes are of equal theoretical application to a particular case, the one designed
therefore should prevail." (Citing Leveriza v. Intermediate Appellate Court, 157 SCRA 282,
294.) Generalia specialibus non derogant.11
In the light of Article 291, aforecited, we agree with the appellate court's conclusion that petitioner's
action for damages due to illegal termination filed again on January 8, 1987 or more than four (4)
years after the effective date of his dismissal on November 1, 1982 has already prescribed.
In the instant case, the action for damages due to illegal termination was filed by plaintiff-
appelle only on January 8, 1987 or more than four (4) years after the effectivity date of his
dismissal on November 1, 1982. Clearly, plaintiff-appellee's action has already prescribed.
We base our conclusion not on Article 1144 of the Civil Code but on which sets the prescription
period at three (3) years and which governs under this jurisdiction.
Petitioner claims that the running of the prescriptive period was tolled when he filed his complaint for
illegal dismissal before the Labor Arbiter of the National Labor Relations Commission. However, this
claim deserves scant consideration; it has no legal leg to stand on. In Olympia International, Inc., vs.,
Court of Appeals, we held that "although the commencement of a civil action stops the running of the
statute of prescription or limitations, its dismissal or voluntary abandonment by the plaintiff leaves
in exactly the same position as though no action had been commenced at all."12
Now, as to whether petitioner's separation from the company due to retrenchment was valid, the
appellate court found that the employment contract of petitioner allowed for pre-termination of
employment. We agree with the Court of Appeals when it said,
It is a settled rule that contracts have the force of law between the parties. From the
moment the same is perfected, the parties are bound not only to the fulfillment of what has
been expressly stipulated but also to all consequences which, according to their nature,
may be in keeping with good faith, usage and law. Thus, when plaintiff-appellee accepted
the offer of employment, he was bound by the terms and conditions set forth in the
contract, among others, the right of mutual termination by giving three months written
notice or by payment of three months salary. Such provision is clear and readily
understandable, hence, there is no room for interpretation.
xxx     xxx     xxx
Further, plaintiff-appellee's contention that he is not bound by the provisions of the
Agreement, as he is not a signatory thereto, deserves no merit. It must be noted that when
plaintiff-appellee's employment was confirmed, he applied for membership with the
Singapore Airlines Limited (Pilots) Association, the signatory to the aforementioned
Agreement. As such, plaintiff-appellee is estopped from questioning the legality of the said
agreement or any proviso contained therein.13
Moreover, the records of the present case clearly show that respondent court's decision is amply
supported by evidence and it did not err in its findings, including the reason for the retrenchment:
When defendant-appellant was faced with the world-wide recession of the airline industry
resulting in a slow down in the company's growth particularly in the regional operation
(Asian Area) where the Airbus 300 operates. It had no choice but to adopt cost cutting
measures, such as cutting down services, number of frequencies of flights, and reduction
of the number of flying points for the A-300 fleet (t.s.n., July 6, 1988, pp. 17-18). As a
result, defendant-appellant had to lay off A-300 pilots, including plaintiff-appellee, which
it found to be in excess of what is reasonably needed.14
All these considered, we find sufficient factual and legal basis to conclude that petitioner's
termination from employment was for an authorized cause, for which he was given ample notice
and opportunity to be heard, by respondent company. No error nor grave abuse of discretion,
therefore, could be attributed to respondent appellate court.1âwphi1.nêt
ACCORDINGLY, the instant petition is DISMISSED. The decision of the Court of Appeals in C.A.
CV No. 34476 is AFFIRMED.
SO ORDERED.
Bellosillo, Mendoza, Buena and De Leon, Jr., JJ., concur.
G.R. No. 100901 July 16, 1998
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JAILON KULAIS, CARLOS FALCASANTOS @ "Commander Falcasantos," AWALON
KAMLON HASSAN @ "Commander Kamlon," MAJID SAMSON @ "Commander Bungi,"
JUMATIYA AMLANI DE FALCASANTOS, NORMA SAHIDDAN DE KULAIS, SALVADOR
MAMARIL y MENDOZA, HADJIRUL PLASIN y ALIH, JAINUDDIN HASSAN y AHMAD,
IMAM TARUK ALAH y SALIH, JALINA HASSAN DE KAMMING, FREDDIE MANUEL @
"Ajid" and several JOHN and JANE DOES, accused, JAILON KULAIS, appellant.
PANGANIBAN, J.:
The trial court's erroneous taking of judicial notice of a witness' testimony in another case, also
pending before it, does not affect the conviction of the appellant, whose guilt is proven beyond
reasonable doubt by other clear, convincing and overwhelming evidence, both testimonial and
documentary. The Court takes this occasion also to remind the bench and the bar that reclusion
perpetua is not synonymous with life imprisonment.
The Case
On August 22, 1990, five Informations for kidnapping for ransom (Crim. Case Nos. 10060, 10061,
10062, 10063 and 10064) and three Informations for kidnapping (Crim Case Nos. 10065, 10066
and 10067), all dated August 14, 1990, were filed 1 before the Regional Trial Court of Zamboanga
City against Carlos Falcasantos, Jailon Kulais, Jumatiya Amlani, Norma Sahiddan de Kulais, Jalina
Hassan de Kamming, 2 Salvador Mamaril, Hadjirul Plasin, Jaimuddin Hassan, Imam 3 Taruk Alah,
Freddie Manuel alias "Ajid," and several John and Jane Does. The Informations for kidnapping for
ransom, which set forth identical allegations save for the names of the victims, read as follows:
That on or about the 12th day of December, 1988, in the City of Zamboanga,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, being all private individuals, conspiring and confederating together,
mutually aiding and assisting one another, with threats to kill the person of FELIX
ROSARIO [in Criminal Case No. 10060] 4 and for the purpose of extorting
ransom from the said Felix Rosario or his families or employer, did then and
there, wilfully, unlawfully and feloniously, KIDNAP the person of said Felix
Rosario, 5 a male public officer of the City Government of Zamboanga, who was
then aboard a Cimarron vehicle with plate No. SBZ-976 which was being
ambushed by the herein accused at the highway of Sitio Tigbao Lisomo,
Zamboanga City, and brought said Felix Rosario 6 to different mountainous
places of Zamboanga City and Zamboanga del Sur, where he was detained, held
hostage and deprived of his liberty until February 2, 1989, the day when he was
released only after payment of the ransom was made to herein accused, to the
damage and prejudice of said victim; there being present an aggravating
circumstance in that the aforecited offense was committed with the aid of armed
men or persons who insure or afford impunity.
The three Informations for kidnapping, also under Article 267 of the Revised Penal Code, likewise
alleged identical facts and circumstances, except the names of the victims:
That on or about the 12th day of December, 1988, in the City of Zamboanga and
within the jurisdiction of this Honorable Court, the above-named accused, being
all private individuals, conspiring and confederating together, mutually aiding and
assisting one another, by means of threats and intimidation of person, did then and
there, wilfully, unlawfully and feloniously KIDNAP, take and drag away and
detain the person of MONICO SAAVEDRA Y LIMEN [Criminal Case No.
10065] 7 a male public officer of the City Government of Zamboanga, against his
will, there being present an aggravating circumstance in that the aforecited offense
was committed with the aid of armed men or persons who insure or afford
impunity.
Of the twelve accused, only nine were apprehended, namely, Jailon Julais, Jumatiya Amlani, Norma
Sahiddan de Kulais, Salvador Mamaril Hadjirul Plasin, Jainuddin Hassan, Imam Taruk Alah, Jalina
Hassan and Freddie Manuel. 8
On their arraignment on September 13, 1990, all the accused pleaded not guilty. Joint trial on the
merits ensued. On April 8, 1991, Judge Pelagio S. Mandi rendered the assailed 36-page Decision, the
dispositive portion of which reads:
WHEREFORE, above premises and discussion taken into consideration, this Court
renders its judgment, ordering and finding:
1. FREDDIE MANUEL, alias "AJID" and IMAM TARUK ALAH y SALIH [n]ot
[g]uilty of the eight charges of [k]idnapping for [r]ansom and for [k]idnapping, their
guilt not having been proved beyond reasonable doubt.
Their immediate release from the City Jail, Zamboanga City is ordered, unless
detained for some other offense besides these 8 cases (Crim. Cases Nos. 10060-
10067).
2. JAINUDDIN HASSAN y AHMAD, JAILON KULAIS, SALVADOR MAMARIL
y MENDOZA and HADJIRUL PLASIN y ALIH [g]uilty as principals by conspiracy
in all these 8 cases for [k]idnapping for [r]ansom and for [k]idnapping (Crim. Cases
Nos. 10060-10067).
Their guilt is aggravated in that they committed the 8 offenses with the aid of armed
men who insured impunity. Therefore, the penalties imposed on them shall be at their
maximum period.
WHEREFORE, for the five charges of [k]idnapping for [r]ansom, and pursuant to
Art. 267 of the Revised Penal Code, five life imprisonments are imposed on
Jainuddin Hassan y Ahmad, Jailon Kulais, Salvador Mamaril y Mendoza and Kadjirul
Plasin y Alih (Crim. Cases Nos. 10060-10064).
For kidnapping Mrs. Virginia San Agustin-Gara, a female and public officer and
pursuant to Art. 267, Revised Penal Code (par. 4.), another life imprisonment is
imposed on Jainuddin Hassan y Ahmad, Jailon Kulais, Salvador Mamaril y Mendoza
and Hadjirul Plasin y Alih (Crim. Case No. 10066)
For kidnapping Monico Saavedra y Limen, and Calixto Francisco y Gaspar, and their
kidnapping not having lasted more than five days, pursuant to Art. 268, Revised
Penal Code, and the Indeterminate Sentence Law, the same four accused — Jainuddin
Hassan y Ahmad, Jailon Kulais, Salvador Mamaril y Mendoza and Hadjirul Plasin y
To Jessica Calunod:
Alih — are sentenced to serve two (2) jail terms ranging from ten (10) years of
prision mayor as minimum, to eighteen (18) years of reclusion temporal as
maximum (Crim. Cases Nos. 10065 and 10067).
3. JAMATIYA AMLANI DE FALCASANTOS [n]ot [g]uilty in the three charges
of [k]idnapping and she is acquitted of these charges. (Crim. Cases Nos. 10065,
10066 and 10067).
But Jumatiya Amlani de Falcasantos is [g]uilty as accomplice in the five charges
of [k]idnapping for [r]ansom.
WHEREFORE, Jumatiya Amlani de Falcasantos is sentenced to serve five (5)
imprisonments, ranging from TEN (10) YEARS of prision mayor as minimum to
EIGHTEEN (18) YEARS of reclusion temporal as maximum (Crim. Cases Nos.
10060-1 0064).
4. NORMA SAHIDDAN DE KULAIS, 18 years old, and JALIHA HUSSIN
(charged as Jalina Hassan de Kamming), 15 years old, [n]ot [g]uilty in the three
charges for [k]idnapping and are, therefore, ACQUITTED of these three charges.
(Crim. Cases Nos. 10065, 10066 & 10067).
But Norma Sahiddan de Kulais and Jalina Hussin are found [g]uilty as
accomplices in the five charges for [k]idnapping for [r]ansom. Being miners, they
are entitled to the privileged mitigating circumstance of minority which lowers the
penalty imposable on them by one degree.
WHEREFORE, Norma Sahiddan de Kulais and Jalina Hussin are sentenced to
serve five imprisonments ranging from SIX (6) YEARS of prision correccional as
minimum to TEN YEARS AND ONE (1) DAY OF prision mayor as maximum
(Crim. Cases Nos. 10060-10064).
Due to the removal of the suspension of sentences of youthful offenders
"convicted of an offense punishable by death or life" by Presidential Decree No.
1179 and Presidential Decree No. 1210 (of which [k]idnapping for [r]ansom is
such an offense) the sentences on Norma Sahiddan de Kulais and Jaliha Hussin de
Kamming are NOT suspended but must be served by them.
Januddin Hassan, Jailon Kulais, Salvador Mamaril and Hadjirul Plasin are
sentenced further to return the following personal effects taken on December 12,
1988, the day of the kidnapping, or their value in money, their liability being
solidary.
 Cash P 300.00

One (1) Seiko wrist watchP P 250.00 To Virginia San Agustin-Gara:

One Bracelet P 2,400.00 One (1)Wrist Watch P 850.00

One Shoulder Bag P 200.00

The benefit of Art. 29, Revised Penal Code, on preventive suspension, shall be
extended to those sentenced.
Cash P 200.00
The cases against Majid Samson, alias "Commander Bungi" Awalon Kamlon
a.k.a. "Commander Kamlon" Carlos Falcasantos and several "John Does" and
To Armado C. Bacarro: Jane "Does" are ARCHIVED until their arrest.
Costs against the accused convicted.
One (1) wrist watch P 800.00 SO ORDERED. 9
On May 7, 1991, Jailon Kulais, Jumatiya Amlani de Falcasantos, Norma Sahiddan de Kulais and
One Necklace P 300.00 Jaliha Hussin filed their joint Notice of Appeal. 10 In a letter dated February 6, 1997, the same
appellants, except Jailon Kulais, withdrew their appeal because of their application for "amnesty."
In our March 19, 1997 Resolution, we granted their motion. Hence, only the appeal of Kulais
One Calculator P 295.00 remains for the consideration of this Court. 11
The Facts
Eyeglasses P 500.00
The Version of the Prosecution
The solicitor general summarized, in this wise, the facts as viewed by the People:
One Steel Tape P 250.00
On December 12, 1988, a group of public officials from various government
agencies, organized themselves as a monitoring team to inspect government
To Edilberto S. Perez: projects in Zamboanga City. The group was composed of Virginia Gara, as the
head of the team; Armando Bacarro, representing the Commission on Audit; Felix
del Rosario, representing the non-government: Edilberto Perez, representing the
One (1) Rayban P 1,000.00
City Assessor's Office; Jessica Calunod and Allan Basa of the City Budget Office
and Monico Saavedra, the driver from the City Engineer's Office. (p. 3, TSN,
One Wrist WatchP P 1,800.00 October 22, 1990.)
 On that particular day, the group headed to the Lincomo Elementary School to check
on two of its classrooms. After inspecting the same, they proceeded to the Talaga
Footbridge. The group was not able to reach the place because on their way, they
were stopped by nine (9) armed men who pointed their guns at them (p. 4, TSN,
ibid.).
The group alighted from their Cimarron jeep where they were divested of their
personal belongings. They were then ordered to walk to the mountain by the leader of
the armed men who introduced himself as Commander Falcasantos (p. 5, TSN, ibid.).
While the group was walking in the mountain, they encountered government troops
which caused their group to be divided. Finally, they were able to regroup
themselves. Commander Kamlon with his men joined the others. (pp. 7-8, TSN,
ibid.).
The kidnappers held their captives for fifty-four (54) days in the forest. During their
captivity, the victims were able to recognize their captors who were at all times armed
with guns. The wives of the kidnappers performed the basic chores like cooking. (pp.
9-10. TSN, ibid.)
Commander Falcasantos also ordered their victims to sign the ransom notes which
demanded a ransom of P100,000.00 and P14,000.00 in exchange for twenty (20) sets
of uniform. (p. 15, TSN, ibid.)
On February 3, 1989, at around 12:00 o'clock noontime, the victims were informed
that they would be released. They started walking until around 7:00 o'clock in the
evening of that day. At around 12:00 o'clock midnight, the victims were released after
Commander Falcasantos and Kamlon received the ransom money. (p. 19, TSN, ibid.)
The total amount paid was P122,000.00. The same was reached after several
negotiations between Mayor Vitaliano Agan of Zamboanga City and the
representatives of the kidnappers. (pp. 2, 6, TSN, Nov. 11, 1990)
. . . 12
The prosecution presented fifteen witnesses, including some of the kidnap victims themselves: Jessica
Calunod, Armando Bacarro, Edilberto Perez, Virginia San Agustin-Gara, Calixto Francisco, and
Monico Saavedra.
The Version of the Defense
The facts of the case, according to the defense, are as follows: 13
On May 28, 1990, at about 10:00 o'clock in the morning, while weeding their
farm in Sinaburan, Zamboanga del Sur, accused-appellant Jumatiya Amlani was
picked up by soldiers and brought to a place where one army battalion was
stationed. Thereat, her five (5) co-accused, namely Salvador Mamaril, Hadjirul
Plasin, Jainuddin Hassin, Imam Taruk Alah and Freddie Manuel were already
detained. In the afternoon of the same day, appellants spouses Jailon Kulais and
Norma Sahiddan were brought to the battalion station and likewise detained
thereat. On May 30, 1990, the eight (8) accused were transported to Metrodiscom,
Zamboanga City. Here on the same date, they were joined by accused-appellant
Jaliha Hussin.
At the time Amlani was picked up by the military, she had just escaped from the
captivity of Carlos Falcasantos and company who in 1988 kidnapped and brought
her to the mountains. Against their will, she stayed with Falcasantos and his two
wives for two months, during which she slept with Falcasantos as aide of the
wives and was made to cook food, wash clothes, fetch water and run other errands
for everybody. An armed guard was assigned to watch her, so that, for sometime,
she had to bear the ill-treatment of Falcasantos' other wives one of whom was
armed. After about two months, while she was cooking and Falcasantos and his
two wives were bathing in the river, and while her guard was not looking, she
took her chance and made a successful dash for freedom. (TSN, January 29, 1992,
pp. 2-15)
Likewise a kidnap victim herself is accused-appellant Jaliha Hussin, who was
thirteen years old at the time (she was fifteen years old when the trial of the
instant cases commenced). She was kidnapped by Daing Kamming and brought to
the mountains where he slept with her. She stayed with him for less than a month
sleeping on forest ground and otherwise performing housekeeping errands for
Kamming and his men. She made good her escape during an encounter between
the group of Kamming and military troops. She hid in the bushes and came out at
Ligui-an where she took a "bachelor" bus in going back to her mother's house at
Pudos, Guiligan, Tungawan, Zamboanga del Sur. One day, at around 2:00 o'clock
in the afternoon, while she was harvesting palay at the neighboring village of
Tigbalangao, military men picked her up to Ticbanuang where there was an army
battalion detachment. From Ticbawuang, she was brought to Vitali, then to
Metrodiscom, Zamboanga City, where on her arrival, she met all the other accused
for the first time except Freddie Manuel. (Ibid., pp. 16-21)
Another female accused is appellant Norma Sahiddan, a native of Sinaburan,
Tungawan, Zamboanga del Sur. At about 3:00 o'clock in the afternoon of a day in
 May, while she and her husband were in their farm, soldiers arrested them. The Hussin; (3) Norma Sahiddan; (4) Jailon Kulais; (5) Hadjirul Plasin; (6) Salvador
soldiers did not tell them why they were being arrested, neither were they shown any Mamaril and (7) Jainuddin Hassan.
papers. The two of them were just made to board a six by six truck. There were no
The two accused not positively identified are: Freddie Manuel alias "Ajid", and
other civilians in the truck. The truck brought the spouses to the army battalion and
Imam Taruk Alah. These two must, therefore, be declared acquitted based on
placed them inside the building where there were civilians and soldiers. Among the
reasonable doubt.
civilians present were her six co-accused Hadjirul Plasin, Salvador Mamaril,
Jaimuddin Hassan, Ima[m] Taruk Alah, Freddie Manuel and Jumatiya Amlani. That The next important issue to be examined is: Are these seven accused guilty as
night, the eight of them were brought to Tictapul, Zamboanga City; then to Vitali; conspirators as charged in the eight Informations; or only as accomplices?
and, finally, to the Metrodiscom, Zamboanga City where they stayed for six days and Prosecution evidence shows that the kidnapping group to which the seven accused
six nights. On the seventh day, the accused were brought to the City Jail, Zamboanga belonged had formed themselves into an armed band for the purpose of
City. (TSN, January 30, 1991, pp. 6-11) kidnapping for ransom. This armed band had cut themselves off from established
communities, lived in the mountains and forests, moved from place to place in
The husband of Norma Sahiddan is Jailon Kulais who, as heretofore narrated, was
order to hide their hostages. The wives of these armed band moved along with
arrested with his wife the day the soldiers came to their farm on May 28, 1990. He
their husbands, attending to their needs, giving them material and moral support.
has shared with his wife the ordeals that followed in the wake of their arrest and in
These wives also attended to the needs of the kidnap victims, sleeping with them
the duration of their confinement up to the present. (TSN, January 22, 1991 pp. 2-4).
or comforting them.
The Trial Court's Ruling
x x x           x x x          x x x
The trial court found Appellant Kulais guilty of five counts of kidnapping for ransom and one count of
II The guilt of Jainuddin Hassan, Jailon Kulais, Salvador Mamaril and Hadjirul
kidnapping a woman and public officer, for which offenses it imposed upon him six terms of "life
Plasin. The Court holds these four men guilty as conspirators in the 8 cases of
imprisonment." It also found him guilty of two counts of slight illegal detention for the kidnapping of
kidnapping. Unlike the three women-accused, these male accused were armed.
Monico Saavedra and Calixto Francisco. The trial court ratiocinated as follows:
They actively participated in keeping their hostages by fighting off the military
Principally, the issue here is one of credibility — both of the witnesses and their and CAFGUS, in transferring their hostages from place to place, and in guarding
version of what had happened on December 12, 1988, to February 3, 1989. On this the kidnap hostages. Salvador Mamaril and Jailon Kulais were positively
pivotal issue, the Court gives credence to [p]rosecution witnesses and their identified as among the nine armed men who had kidnapped the eight kidnap
testimonies. Prosecution evidence is positive, clear and convincing. No taint of evil or victims on December 12, 1988.
dishonest motive was imputed or imputable to [p]rosecution witnesses. To this Court,
The higher degree of participation found by the Court of the four accused is
who saw all the witnesses testify, [p]rosecution witnesses testified only because they
supported by the rulings of our Supreme Court quoted below.
were impelled by [a] sense of justice, of duty and of truth.
(1) The time-honored jurisprudence is that direct proof is not essential to prove
Contrarily, [d]efense evidence is weak, uncorroborated and consisted only of alibis.
conspiracy. It may be shown by a number of infinite acts, conditions and
The individual testimonies of the nine accused dwel[t] principally on what happened
circumstances which may vary according to the purposes to be accomplished and
to each of them on May 27, 28 and 29, 1990. None of the accused explained where he
from which may logically be inferred that there was a common design,
or she was on and from December 12, 1988, to February 3, 1989, when [p]rosecution
understanding or agreement among the conspirators to commit the offense
evidence show[ed] positively seven of the nine accused were keeping the five or six
charged. (People vs. Cabrera, 43 Phil 64; People vs. Carbonel, 48 Phil. 868.)
hostages named by [p]rosecution evidence.
(2) The crime must, therefore, in view of the solidarity of the act and intent which
The seven accused positively identified to have been present during the course of the
existed between the sixteen accused, be regarded as the act of the band or party
captivity of the five kidnap-victims-complainants are: (1) Jumatiya Amlani; (2) Jaliha
 created by them, and they are all equally responsible for the murder in question. (U.S.
vs. Bundal, et. al. 3 Phil 89, 98.)
(3) When two or more persons unite to accomplish a criminal object, whether through
the physical volition of one, or all, proceeding severally or collectively, each
individual whose evil will actively contribute to the wrongdoing is in law responsible
for the whole, the same as though performed by himself alone. (People vs. Peralta, et.
al. 25 SCRA 759, 772 (1968).) 14
The Assigned Errors
The trial court is faulted with the following errors, viz:
I
The trial court erred in taking judicial notice of a material testimony given in another
case by Lt. Melquiades Feliciano, who allegedly was the team leader of the
government troops which allegedly captured the accused-appellants in an encounter;
thereby, depriving the accused-appellants their right to cross-examine him.
II
On the assumption that Lt. Feliciano's testimony could be validly taken judicial
notice of, the trial court, nevertheless, erred in not disregarding the same for being
highly improbable and contradictory.
III
The trial court erred in finding that accused-appellants Jumatiya Amlani, Jaliha
Hussin and Norma Sahiddan provided Carlos Falcasantos, et. al., with material and
moral comfort, hence, are guilty as accomplices in all the kidnapping for ransom
cases.
IV
The trial court erred in denying to accused-appellant Jaliha Hussin and Norma
Sahiddan the benefits of suspension of sentence given to youth offenders considering
that they were minors at the time of the commission of the offense. 15
As earlier noted, Jumatiya Amlani, Jaliha Hussin and Norma Sahiddan had withdrawn their appeal,
and as such, the third and fourth assigned errors, which pertain to them only, will no longer be dealt
with. Only the following issues pertaining to Appellant Jailon Kulais will be discussed: (1) judicial
notice of other pending cases, (2) sufficiency of the prosecution evidence, and (3) denial as a defense.
In addition, the Court will pass upon the propriety of the penalty imposed by the trial court.
The Court's Ruling
The appeal is bereft of merit.
First Issue:
Judicial Notice and Denial of Due Process
Appellant Kulais argues that he was denied due process when the trial court took judicial notice of
the testimony given in another case by one Lt. Melquiades Feliciano, who was the team leader of
the government troops that captured him and his purported cohorts. 16 Because he was allegedly
deprived of his right to cross-examine a material witness in the person of Lieutenant Feliciano, he
contends that the latter's testimony should not be used against him. 17
True, as a general rule, courts should not take judicial notice of the evidence presented in other
proceedings, even if these have been tried or are pending in the same court, or have been heard and
are actually pending before the same judge. 18 This is especially true in criminal cases, where the
accused has the constitutional right to confront and cross-examine the witnesses against him.
Having said that, we note, however, that even if the court a quo did take judicial notice of the
testimony of Lieutenant Feliciano, it did not use such testimony in deciding the cases against the
appellant. Hence, Appellant Kulais was not denied due process. His conviction was based mainly
on the positive identification made by some of the kidnap victims, namely, Jessica Calunod,
Armando Bacarro and Edilberto Perez. These witnesses were subjected to meticulous cross-
examinations conducted by appellant's counsel. At best, then, the trial court's mention of
Lieutenant Feliciano's testimony is a decisional surplusage which neither affected the outcome of
the case nor substantially prejudiced Appellant Kulais.
Second Issue:
Sufficiency of Prosecution Evidence
Appellant was positively identified by Calunod, as shown by the latter's testimony:
CP CAJAYON D MS:
Q And how long were you in the custody of these persons?
A We stayed with them for fifty-four days.
Q And during those days did you come to know any of the
persons who were with the group?
A We came to know almost all of them considering we stayed
there for fifty-four days.
Q And can you please name to us some of them or how you know RTC INTERPRETER:
them?
Witness pointed to a man sitting in court and when asked of his
A For example, aside from Commander Falcasantos and name, he gave his name as JAILON KULAIS.
Commander Kamlon we came to know first our foster parents, those
CP CAJAYON D MS:
who were assigned to give us some food.
Q Aside from being with the armed men who stopped the vehicle
Q You mean to say that the captors assigned you some men who will
and made you alight, what else was he doing while you were in
take care of you?
their captivity?
A Yes.
A He was the foster parent of Armando Bacarro and the husband
Q And to whom were you assigned? of Nana.
A To Ila Abdurasa. COURT:
Q And other than your foster [parents] or the parents whom you are Q Who?
assigned to, who else did you come to know?
A Tangkong.
A Pagal and his wife; Tangkong and his wife Nana; the two (2)
xxx xxx xxx 19
wives of Commander Falcasantos — Mating and Janira — another
brother in-law of Commander Kamlon, Usman, the wife of Kamlon, Likewise clear and straightforward was Bacarro's testimony pointing to appellant as one of the
Tira. culprits:
x x x           x x x          x x x FISCAL CAJAYON:
Q Now, you said that you were with these men for fifty-four days x x x           x x x          x x x
and you really came to know them. Will you still be able to
Q And what happened then?
recognize these persons if you will see the[m] again?
A Some of the armed men assigned who will be the host or who
A Yes, ma'am.
will be the one [to] g[i]ve food to us.
Q Now will you look around this Honorable Court and see if any of
Q [To] whom were you assigned?
those you mentioned are here?
A I was assigned to a certain Tangkong and [his] wife Nana.
A Yes, they are here.
x x x           x x x          x x x
Q Some of them are here?
Q Now, you said you were assigned to Tangkong and his wife.
A Some of them are here.
[D]o you remember how he looks like?
x x x           x x x          x x x
A Yes.
Q Where is Tangkong? What is he wearing?
Q Now, will you please look around this Court and tell us if that
A White t-shirt with orange collar. (witness pointing.) He was one of said Tangkong and his wife are here?
those nine armed men who took us from the highway.
 A Yes, ma'am.
Q Could you please point this Tangkong to us?
A Witness pointed to a person in Court. [W]hen asked his name he
identified [himself] as Jailon Kulais.
Q Why did you say his name is Tangkong? Where did you get that
name?
A Well, that is the name [by which he is] usually called in the camp.
x x x           x x x          x x x
ATTY. FABIAN (counsel for accused Kulais)
Q When did you first meet Tangkong?
A That was on December 11, because I remember he was the one
who took us.
Q When you were questioned by the fiscal a while ago, you stated
that Mr. Mamaril was one of those who stopped the bus and took
you to the hill and you did not mention Tangkong?
A I did not mention but I can remember his face.
x x x           x x x          x x x
Q And because Tangkong was always with you as your host even if
he did not tell you that he [was] one of those who stopped you, you
would not recognize him?
A No, I can recognize him because he was the one who took my
shoes.
COURT:
Q Who?
A Tangkong, your Honor.
xxx xxx xxx 20
Also straightforward was Ernesto Perez' candid narration:
FISCAL CAJAYON:
x x x           x x x          x x x
Q Who else?
A The last man.
Q Did you come to know his name?
A Only his nickname, Tangkong. (Witness pointed to a man in
Court who identified himself as Jailon Kulais.)
Q And what was Tangkong doing in the mountain?
A The same, guarding us.
CROSS-EXAMINATION BY ATTY. SAHAK.
Q Engr. Perez, you stated that you were ambushed by nine armed
men on your way from [the] Licomo to [the] Talaga Foot Bridge.
[W]hat do you mean by ambushed?
A I mean that they blocked our way and stopped.
Q They did not fire any shots?
A But they were pointing their guns at us.
Q And among the 9 armed men who held you on your way to
[the] Talaga Footbridge, you stated [that] one of them [was]
Commander Falcasantos?
A Yes.
Q Could you also recognize anyone of the accused in that group?
A Yes.
Q Will you please identify?
A That one, Tangkong. (The witness pointed to a man sitting in
court who identified himself as Jailon Kulais.)
x x x           x x x          x x x
CROSS-EXAMINATION BY ATTY. FABIAN.
Q You said Jailon Kulais was among those who guarded the
camp?
 FISCAL CAJAYON:
Your Honor, please, he does not know the name of Julais, he used
the word Tangkong.
ATTY. FABIAN
Q You said Tangkong guarded you[. W]hat do you mean?
A He guarded us like prisoners[. A]fter guarding us they have their
time two hours another will be on duty guarding us.
Q Where did you meet Tangkong?
A He was one of the armed men who kidnapped us.
xxx xxx xxx 21
It is evident from the foregoing testimonies of Calunod, Bacarro and Perez that kidnapping or
detention did take place: the five victims were held, against their will, for fifty-three days from
December 12, 1988 to February 2, 1989. It is also evident that Appellant Kulais was a member of the
group of armed men who staged the kidnapping, and that he was one of those who guarded the victims
during the entire period of their captivity. His participation gives credence to the conclusion of the trial
court that he was a conspirator.
Kidnapping
for Ransom
That the kidnapping of the five was committed for the purpose of extorting ransom is also apparent
from the testimony of Calunod, who was quite emphatic in identifying the accused and narrating the
circumstances surrounding the writing of the ransom letters.
CP CAJAYON D MS:
Q Now, you were in their captivity for 54 days and you said there
were these meetings for possible negotiation with the City
Government. What do you mean by this? What were you supposed
to negotiate?
A Because they told us that they will be releasing us only after the
terms. 22
Q And what were the terms? Did you come to know the terms?
A I came to know the terms because I was the one ordered by
Commander Falcasantos to write the letter, the ransom letter.
Q At this point of time, you remember how many letters were
you asked to write for your ransom?
A I could not remember as to how many, but I can identify them.
Q Why will you able to identify the same?
A Because I was the one who wrote it.
Q And you are familiar, of course, with your penmanship?
A Yes.
Q Now we have here some letters which were turned over to us
by the Honorable City Mayor Vitaliano Agan. 1,2,3,4,5 — there
are five letters all handwritten.
COURT:
Original?
CP CAJAYON D MS:
Original, your Honor.
Q And we would like you to go over these and say, tell us if any
of these were the ones you were asked to write.
A (Witness going over [letters])
This one — 2 pages. This one — 2 pages. No more.
Q Aside from the fact that you identified your penmanship in
these letters, what else will make you remember that these are
really the ones you wrote while there?
A The signature is there.
Q There is a printed name here[,] Jessica Calunod.
A And over it is a signature.
Q That is your signature?
A Yes, ma'am.
Q How about in the other letter, did you sign it also?
A Yes, there is the other signature.
Q There are names — other names here — Eddie Perez, Allan Basa,
Armando Bacarro, Felix Rosario, Jojie Ortuoste and there are
signatures above the same. Did you come up to know who signed
this one?
A Those whose signatures there were signed by the persons. [sic].
Q And we have here at the bottom, Commander Kamlon Hassan,
and there is the signature above the same. Did you come to know
who signed it?
A [It was] Commander Kamlon Hassan who signed that.
x x x           x x x          x x x
Q Jessica, I am going over this letter . . . Could you please read to us
the portion here which says the terms? . . .
A (Witness reading) "Mao ilang gusto nga andamun na ninyo ang
kantidad nga P100,000 ug P14,000 baylo sa 20 sets nga uniforms sa
Biyernes (Pebrero 3, 1989). 23
x x x           x x x          x x x
INTERPRETER (Translation):
This is what they like you to prepare[:] the amount of P100,000.00
and P14,000.00 in exchange [for] 20 sets of uniform on Friday,
February 3, 1989.
x x x           x x x          x x x
Q Now you also earlier identified this other letter and this is dated
January 21, 1988. 24 Now, could you please explain to us why it is
dated January 21, 1988 and the other one Enero 31, 1989 or January
31, 1989?
A I did not realize that I placed 1989, 1988, but it was 1989.
Q January 21, 1989?
A Yes.
x x x           x x x          x x x
Q Now, in this letter, were the terms also mentioned?
Please go over this.
A (Going over the letter)
Yes, ma'am.
Q Could you please read it aloud to us?
A (Witness reading)
Gusto nila and P100,000.00 ng kapinan nu ug 20 sets nga
completong uniformer (7 colors marine type wala nay labot ang
sapatos), tunga medium ug tunga large size. 25
x x x           x x x          x x x
INTERPRETER:
They like the P100,000.00 and an addition of 20 sets of complete
uniform (7 colors, marine-type not including the shoes), one half
medium, one half large.
x x x           x x x          x x x
Q After having written these letters, did you come to know after
[they were] signed by your companions and all of you, do you
know if these letters were sent? If you know only.
A I would like to make it clear. The first letter was ordered to me
by Falcasantos to inform the City Mayor that initial as
P500,000.00, and when we were already — I was asked again to
write, we were ordered to affix our signature to serve as proof
that all of us are alive. 26 [sic]
Calunod's testimony was substantially corroborated by both Armando Bacarro 27 and Edilberto
Perez. 28 The receipt of the ransom letters, the efforts made to raise and deliver the ransom, and
the release of the hostages upon payment of the money were testified to by Zamboanga City Mayor
Vitaliano Agan 29 and Teddy Mejia. 30
The elements of kidnapping for ransom, as embodied in Article 267 of the Revised Penal Code, 31
having been sufficiently proven, and the appellant, a private individual, having been clearly
identified by the kidnap victims, this Court thus affirms the trial court's finding of appellant's guilt on
five counts of kidnapping for ransom.
Kidnapping of
Public Officers
Victims Virginia San Agustin-Gara, Monico Saavedra and Calixto Francisco were members of the
government monitoring team abducted by appellant's group. The three testified to the fact of
kidnapping; however, they were not able to identify the appellant. Even so, appellant's identity as one
of the kidnappers was sufficiently established by Calunod, Bacarro and Perez, who were with Gara,
Saavedra and Francisco when the abduction occurred.
That Gara, Saavedra and Francisco were detained for only three hours 32 does nor matter. In People
vs. Domasian, 33 the victim was similarly held for three hours, and was released even before his
parents received the ransom note. The accused therein argued that they could not be held guilty of
kidnapping as no enclosure was involved, and that only grave coercion was committed, if at all. 34
Convicting appellants of kidnapping or serious illegal detention under Art. 267 (4) of the Revised
Penal Code, the Court found that the victim, an eight-year-old boy, was deprived of his liberty when
he was restrained from going home. The Court justified the conviction by holding that the offense
consisted not only in placing a person in an enclosure, but also in detaining or depriving him, in any
manner, of his liberty. 35 Likewise, in People vs. Santos, 36 the Court held that since the appellant
was charged and convicted under Article 267, paragraph 4, it was not the duration of the deprivation
of liberty which was important, but the fact that the victim, a minor, was locked up.
Thus, in the present case, the detention of Gara, Saavedra and Francisco for only a few hours is
immaterial. The clear fact is that the victims were public officers 37 — Gara was a fiscal analyst for
the City of Zamboanga, Saavedra worked at the City Engineer's Office, and Francisco was a barangay
councilman at the time the kidnapping occurred. Appellant Kulais should be punished, therefore,
under Article 267, paragraph 4 of the Revised Penal Code, and not Art, 268, as the trial court held.
The present case is different from People vs. Astorga, 38 which held that the crime committed was not
kidnapping under Article 267, paragraph 4, but only grave coercion. The appellant in that case had
tricked his seven-year-old victim into going with him to a place he alone knew. His plans, however,
were foiled when a group of people became suspicious and rescued the girl from him. The Court noted
that the victim's testimony and the other pieces of evidence did not indicate that the appellant wanted
to detain her, or that he actually detained her.
In the present case, the evidence presented by the prosecution indubitably established that the victims
were detained, albeit for a few hours. There is proof beyond reasonable doubt that kidnapping took
place, and that appellant was a member of the armed group which abducted the victims.
Third Issue:
Denial and Alibi
The appellant's bare denial is a weak defense that becomes even weaker in the face of the
prosecution witnesses' positive identification of him. Jurisprudence gives greater weight to the
positive narration of prosecution witnesses than to the negative testimonies of the defense. 39
Between positive and categorical testimony which has a ring of truth to it on the one hand, and a
bare denial on the other, the former generally prevails. 40 Jessica Calunod, Armando Bacarro and
Edilberto Perez testified in a clear, straightforward and frank manner; and their testimonies were
compatible on material points. Moreover, no ill motive was attributed to the kidnap victims and
none was found by this Court.
We agree with the trial court's observation that the appellant did not meet the charges against him
head on. His testimony dwelt on what happened to him on the day he was arrested and on
subsequent days thereafter. Appellant did not explain where he was during the questioned dates
(December 12, 1988 to February 3, 1989); neither did he rebut Calunod, Bacarro and Perez, when
they identified him as one of their kidnappers.
Reclusion Perpetua, Not Life Imprisonment
The trial court erred when it sentenced the appellant to six terms of life imprisonment. The penalty
for kidnapping with ransom, under the Revised Penal Code, is reclusion perpetua to death. Since
the crimes happened in 1988, when the capital penalty was proscribed by the Constitution, the
maximum penalty that could have been imposed was reclusion perpetua. Life imprisonment is not
synonymous with reclusion perpetua. Unlike life imprisonment, reclusion perpetua carries with it
accessory penalties provided in the Revised Penal Code and has a definite extent or duration. Life
imprisonment is invariably imposed for serious offenses penalized by special laws, while reclusion
perpetua is prescribed in accordance with the Revised Penal Code. 41
WHEREFORE, the conviction of Appellant Jailon Kulais as principal in five counts of kidnapping
for ransom and in three counts of kidnapping is AFFIRMED, but the penalty imposed is hereby
MODIFIED as follows: Appellant is sentenced to five terms of reclusion perpetua, one for each of
his five convictions for kidnapping for ransom; and to three terms of reclusion perpetua, one each
for the kidnapping of Public Officers Virginia Gara, Monico Saavedra and Calixto Francisco. Like
the other accused who withdrew their appeals, he is REQUIRED to return the personal effects, or
their monetary value, taken from the kidnap victims. Additionally, he is ORDERED to pay the
amount of P122,000 representing the ransom money paid to the kidnappers. Costs against
appellant.
SO ORDERED.