1.) G.R. No.

L-8200 March 17, 1914

LEONARD LUCIDO, Plaintiff-Appellee, vs. GELASIO CALUPITAN, ET AL., Defendants-Appellants.

Pedro Guevara for appellants.

Ramon Diokno for appellee.

TRENT, J. : chanrobles virtual law library

In this case it appears that some chattels and real estate belonging to the plaintiff, Lucido, were
regularly sold at an execution sale on February 10, 1903, to one Rosales, who the text day
transferred a one-half interest in the property of Zolaivar. On March 30, 1903, a public document
was executed and signed by all of the above parties and the defendant, Gelasio Calupitan, wherein it
was stated that Rosales and Zolaivar, with the consent of Lucido, sold all their rights had obligation
pertaining to the property in question to Calupitan for the amount of the purchase price together with
1 per cent per month interest thereon up to the time of redemption, or 1,687 Mexican dollars, plus
33.74 Mexican dollars, the amount of the interest. It will be observed that the computation of the
transfer price is in accordance with section 465 of the Code of Civil Procedure. On the same day
Lucido and Calupitan executed the following document:

I, Gelasio Calupitan y Agarao, married, certify that I have delivered this statement to Leonardo

Lucido y Vidal to witness that his lands, which appear in the instrument I hold from the deputy sheriff
and for which he has accepted money from me, I have ceded to him all the irrigated lands until such
time as he may repurchase all said lands from me (not only he irrigated ones), as also the Vienna
chairs, the five-lamp chandelier, a lamp stand, two wall tables, and a marble table; no coconut tree
on said irrigated land is included. Apart from this, our real agreement is to permit three (3)
whole year to elapse, reckoned from the date of this instrument, which has been drawn up
n duplicate, before he may redeem or repurchase them from me.

The lower court held that this document constituted a sale with the right to conventional
redemption set forth in articles 1507 et seq. of the Civil Code. The present action not having been
instituted until February 17, 1910, the fur the question arose as to whether the redemption period
had expired, which the lower court decided in the negative. The lower court further found as a fact
that Lucido had prior to the institution of the action offered the redemption price to the defendant,
who refused it, and that this offer was a sufficient compliance with article 1518 of the Civil Code. The
decision of the lower court was that the property in question should be returned to the plaintiff. From
this judgment the defendant appealed, and all three of the above rulings of the court are assigned as
errors.  
chanroblesvirtualawlibrary chanrobles virtual law library

1. Considerable doubt might arise as to the correctness of the ruling of the lower court upon the first
question, if the document executed by the execution purchasers and the parties to this action stood
alone. In that document it appears that Calupitan acquired the rights and obligations of the execution
purchasers pertaining to the property in question. These rights and obligations are defined in the
Code of Civil Procedure to be the ownership of the property sold, subject only to the right of
redemption on the part of the judgment debtor or a redemptioner, within one year from the date of
the sale. (Secs. 463-465, Code Civ. Proc.) Were this the nature of the transaction between the
parties, however, the intervention of Lucido in the transfer would be wholly
unnecessary. Hence, the fact that he intervened as an interested party is at least some
indication that the parties intended something more or different by the document in
question than a simple assignment of the rights and obligations of the execution
purchasers to a third person.   chanroblesvirtualawlibrary chanrobles virtual law library

Any doubt, however, as to the character of this transaction is removed by the agreement entered
into between Lucido and calupitan on the same day. In this document it is distinctly stipulated
Evidence II.
that the right to redeem the property is preserved to Lucido, to be exercised after the
expiration of three years. The right to repurchase must necessary imply a former ownership of the
property.   chanroblesvirtualawlibrary chanrobles virtual law library

Further indication that Calupitan himself considered this transaction as a sale with the
right to conventional redemption is to be found in his original answer to the
complaint. This original answer was introduced in evidence by the plaintiff over the
objection of the defendant. Its admission was proper, especially in view of the fact that it
was signed by Calupitan himself, who was the time acting as his own attorney.   chanroblesvirtualawlibrary chanrobles virtual law library

Jones on evidence (secs. 272, 273), after remarking that the earlier cases were not in harmony on
the point, says:

Many of the cases holding that pleadings inadmissible as admissions were based on the theory that
most of the allegations were merely pleader's matter -- fiction stated by counsel and sanctioned by
the courts. The whole modern tendency is to reject this view and to treat pleadings as statements of
the real issues in the cause and hence as admissions of the parties, having weight according to the
circumstances of each case. But some of the authorities still hold that if the pleading is not signed by
the party there should be some proof that he has authorized it.   chanroblesvirtualawlibrary chanrobles virtual law library

On the same principles where amended pleadings have been filed, allegations in the

original pleadings are held admissible, but in such case the original pleadings can have no
effect, unless formally offered in evidence.

In this original answer it was expressly stated that the transaction was one of sale with
the right to repurchase governed by the provisions of articles 1507 et seq. of the Civil Code.   chanroblesvirtualawlibrary chanrobles virtual law library

It further appears from the uncontradicted testimony of the plaintiff that he furnished $20
Mexican of the account necessary to redeem the property from the execution purchasers.
It therefore appears beyond dispute that the redemption of the property from the
execution purchasers was made by the plaintiff himself by means of a loan furnished by
the defendant Calupitan, who took possession of the major portion of the land as his
security for its redemption. The ruling of the lower court the transaction between Lucido
and Calupitan was one of purchase and sale with the right to redeem was therefore
correct.  
chanroblesvirtualawlibrary chanrobles virtual law library

2. By the terms of his agreement with Calupitan the plaintiff could not exercise his right to redeem
the property within three years from March 30, 1903; and the lower court arrived at the date upon
which the right to redeem expired by computing five years from March 30, 1906, on the ground that
there was no express agreement as to how long the right to repurchase, once available, should
continue. Counsel for the appellant admits in his brief that the complaint was filed forty-three days
before the expiration of this period. In accordance with our decision in Rosales vs. Reyes and
Ordoveza (25 Phil. Rep., 495), we hold that this ruling of the court was correct.   chanroblesvirtualawlibrary chanrobles virtual law library

3. The court held that the plaintiff had actually tendered the redemption price to the defendant
Calupitan. After an examination of the evidence of record as to this finding of fact, we concur therein.
We discussed the legal sufficiency of such tender in the above-cited case of Rosales vs. Reyes and
Ordoveza, and held that it was sufficient. This assignment of error must therefore be held to be
unfounded.   chanroblesvirtualawlibrary chanrobles virtual law library

4. The defendants Oreta and Bueno have no interest in the subject matter of this action. it appears
that the defendant Dorado purchased the land from his codefendant Calupitan subsequent to the
tender of the redemption price to the latter by the plaintiff. It does not appear that the property was
ever registered by any one, nor was the document of sale with the right to repurchase registered by
Evidence II.
either Calupitan or Lucido. No evidence of the purchase of the land from Calupitan by Dorado is of
record with the exception of the oral testimony although it may be taken as established that such a
sale actually took place, since all the parties interested agree on this point. Dorado himself testified
that he purchased the property with the knowledge that Calupitan had purchased the property from
Lucido subject to the right of redemption and insists that he purchased with the knowledge and
consent of Lucido. Lucido denies that he was aware of the sale of Dorado until after it had taken
place. Upon this state on facts, it is clear that the following provisions of article 1510 of the Civil
Code are applicable:

The vendor may bring his action against every possessor whose right arises that of the vendee, even
though in the second contract no mention should have been made of the conventional redemption;
without prejudice to the provisions of the Mortgage Law with regard to third persons.

The provisions of the Mortgage Law with regard to third persons are clearly not applicable to Dorado.
(Manresa, vol., 10, p. 317.)  chanrobles virtual law library

5. The lower court ordered the redelivery of the land to the plaintiff upon his payment to Calupitan of
P1,600, plus the costs entailed in the execution of the document of repurchase. The amount paid to
the purchaser at the execution sale for the redemption of the property was $1,720.74 Mexican. Of
this amount the plaintiff furnished $120 Mexican, and Calupitan the balance of $1,600.74 Mexican.
No amount is fixed in the document of purchase and sale above set forth, but the amount borrowed
from Calupitan to redeem the land from the execution sale being thus clearly established no
objection can be or is made to the plaintiff's paying this amount. In ordering the payment of this
amount to the defendant the lower court failed to reduce it to Philippine currency. On this appeal
plaintiff alleges that this amount in Mexican currency exceeds the amount he actually owes to the
defendant by about P100, but that rather than spend the time and incur the expense attendant to
new trial for the purpose of determining the equivalent of his amount in Philippine currency he is
agreeable to pay the defendant P1,600.74 Philippine currency, as the redemption price of the
property. In view of this offer and in case it is accepted by the defendant it will be unnecessary to go
through formality of a new trial for the purpose of ascertaining the amount of the fact that it is
claimed that Calupitan has sold the land in question to his codefendant, Macario Dorado, and it not
clearly appearing to whom the plaintiff should pay the P1.600.74, we think this amount should be
turned over to the clerk of the Court of First Instance of the Province of Laguna to be held by him
until it is determined in the proper manner who is the owner of this amount, Calupitan for
Dorado.  
chanroblesvirtualawlibrary chanrobles virtual law library

For the foregoing reasons, judgment will be entered directing the defendants Calupitan and Dorado
to deliver the possession of the land in question to the plaintiff upon the plaintiff's depositing with the
clerk of the court the sum of P1,600.74, to be disposed of in the manner above set forth. In all other
respects the judgment appealed from is affirmed with costs against the appellants Calupitan and
Dorado.  
chanroblesvirtualawlibrary chanroble

Evidence II.
2.) MACARIA A. TORRES (illegitimate daughter), petitioner,
vs.
COURT OF APPEALS, VICENTE SANTILLAN, ALFREDO NARCISO, TOMAS NARCISO, AMADO NARCISO,
SALUD NARCISO, DEMETRIA NARCISO and ADELINA NARCISO, respondents. (heirs from the first marriage)

G.R. No. L-37421 July 31, 1984

MACARIA A. TORRES, petitioner,
vs.
COURT OF APPEALS, VICENTE SANTILLAN, ALFREDO NARCISO, SALUD NARCISO, BALDOMERO
BUENAVENTURA, DEMETRIA NARCISO, LEONARDO QUINTO, ADELINA NARCISO, CESARIO PUNZALAN,
TOMAS NARCISO and AMADO NARCISO, respondents.

Juan R. Liwag for petitioner.

Cesar Nocon for respondents.

MELENCIO-HERRERA, J.:

This Petition for Review on Certiorari, treated as a special civil action. 1 prays that the judgment rendered by the then Court of Appeals
in the consolidated cases, CA-G.R. NO. 34998-R entitled "Macaria A. Torres, plaintiff-appellee vs. Vicente Santillan, et al., defendants-appellants", and CA-G.R.
No. 34999-R entitled "Vicente Santillan, et al., plaintiffs-appellants vs. Macaria A. Bautista, et al., defendants-appellees and the Resolution denying the Motion for
Reconsideration and Petition for New Trial, be set aside; and that, instead, The Order of the Court of First Instance of August 7, 1963 be affirmed, or, in the
alternative, that the case be remanded to it for new trial.

Involved in this controversy are the respective claims of petitioner and private respondents over Lot No. 551 of the
Sta. Cruz de Malabon Estate (part of the friar lands) in Tanza, Cavite, with an area of approximately 1,622 square
meters. covered by Transfer Certificate of Title No. T-6804 issued in the name of the legal heirs of Margarita Torres.

The facts of the case cover three generations. The propositus, Margarita Torres, during the Spanish regime,
was married to Claro Santillan. Vicente and Antonina were begotten of this union. Claro died leaving Margarita
a widow. Antonina married and had six children, namely: Alfredo, Salud (married to Baldomero Buenaventura),
Demetria (married to Leonardo Quinto), Adelina (married to Cesario Punzalan), Tomas and Amado all surnamed
Narciso, who, together with Vicente Santillan, are the private respondents. Antonina died before the institution
of the cases while Vicente died on June 4, 1957,   during the pendency of the cases in the Trial Courts, without
2

progeny .

After the death of her husband, Margarita Torres cohabited with Leon Arvisu Arbole, without benefit of
marriage. Out of their cohabitation, petitioner Macaria Torres (later married to Francisco Bautista) was born on
June 20, 1898, and baptized on June 26, 1898. In a Certificate of Baptism issued by the Parish Priest of Tanza,
Cavite, Leon Arvisu Arbole and Margarita Torres were named as father and mother of petitioner whose name was
listed as Macaria Arvisu", (Exhibit "C" Another Baptismal Certificate, however, listed her name as Macaria Torres,
while her father's name was left blank (Exhibit "4"). Subsequently, or on June 7, 1909, Leon Arbole and Margarita
Torres were married (Exhibit "A"). Petitioner lived with and was reared by her parents. Margarita, the mother,
died on December 20, 1931 (Exhibit "D"), while Leon, the father, passed away on September 14, 1933 (Exhibit " E
").

Lot No. 551, an urban lot with an area of 1,622 sq. ms., more or less, had been leased temporarily by the
Government (Lease No. 17) to Margarita Torres who was the actual occupant of the lot. The date of the lease
cannot be determined with exactitude from the records. On December 13, 1910, the Government, through the
Director of Lands, issued to Margarita Torres, Sale Certificate No. 222 (Exhibit "B") over the said lot at the price of
P428.80, payable in 20 annual installments of P20.00 each. The rental/s previously paid of P17.40 was credited to
the purchase price. Testimonial evidence is to the effect that Leon Arbole paid the installments out of his earnings

Evidence II.
as a water tender at the Bureau of Lands, Tanza, Cavite. The last installment, however, was paid on December 17,
1936, or three (3) years after his death.

On August 25, 1933, twenty (20) days before his death, Leon Arbole sold and transferred in a notarial deed
all his rights and interest to the one-half (1/2) portion of Lot No. 551 in favor of petitioner, for the sum of
P300.00. 3

On June 6, 1953, Vicente Santillan executed an Affidavit claiming possession of Lot No. 551 and asking for
the issuance of title in his name, which he filed with the Bureau of Lands. Based thereon, the Bureau of Lands
issued the corresponding patent in the name of the legal heirs of Margarita Torres. Transfer Certificate of Title
No. T-6804 was eventually issued by the Register of Deeds of Cavite on November 7, 1957, also in the name of
said heirs.

On June 3, 1954, private respondents filed a complaint against petitioner for Forcible Entry, with the Justice
of the Peace Court of Tanza, Cavite, alleging that petitioner had entered a portion of Lot No. 551 without
their consent, constructed a house. and refused to vacate upon demand. For her part, petitioner claimed that
she is a co-owner of the lot in question, being one of the daughters of Margarita Torres. The ejectment case
was decided against petitioner and the latter appealed to the then Court of First Instance of Cavite, where it was
docketed as Civil Case No. 5547 (Ejectment Case).

On June 8, 1954, petitioner instituted an action for partition of Lot No. 551 before the then Court of First Instance of
Cavite, docketed as Civil Case No. 5505 (Partition Case), alleging that said lot was conjugal property of the spouses
Margarita Torres and Leon Arbole, and that she is their legitimated child. Private respondents filed an Answer
alleging that the lot belonged exclusively to Margarita Torres; that they are her only heirs, and that the
complaint for partition should be dismissed.

The Ejectment Case and the Partition Case were jointly tried and decided on November 20, 1958 with a finding
that Lot No. 551 is the paraphernal property of Margarita Torres and adjudicating to private respondents two-thirds
(2/3) of the property in equal shares, and to petitioner a one-third (1/3) portion.   Petitioner moved for
4

reconsideration, which private respondents opposed. Pending its resolution, the Provincial Capitol of Cavite was
burned, resulting in the complete destruction of the records of the two cases, which, however, were later partially
reconstituted.

On August 7, 1963, the then Court of First Instance of Cavite, Branch 1, issued an Order granting reconsideration
and amending the Decision of November 20, 1958. The positive portion thereof reads as follows:

Wherefore, judgment is hereby rendered in Civil Case No. .5505:

(1) Declaring Macaria A. Torres as the legitimated child of the spouses Leon Arbole and
Margarita Torres;

(2) Declaring that Lot No. 551 of the Sta. Cruz de Malabon Estate is a conjugal partnership property
of the spouses Leon Arbole and Margarita Torres;

(3) Adjudicating four-sixths (4/6th of Lot No. 551 of S.C. de Malabon Estate to Macaria Torres, and
two-sixths (2/6th) in equal shares to Alfredo, Tomas, Amado, Salud, Demetria and Adelina, all
surnamed Narciso, legitimate children and heirs of the deceased Antonina Santillan, since Vicente
Santillan is already dead. The parties may make the partition among themselves by proper
instruments of conveyance, subject to confirmation by the Court. In fairness, however, to the parties,
each party should be alloted that portion of the lot where his or her house has been constructed, as
far as this is possible. In case the parties are unable to agree upon the partition, the Court shall
appoint three commissioners to make the partition.

As to Civil Case No. 5547, the same is hereby dismissed.

Without costs in both cases. 5

Evidence II.
In concluding that petitioner is a legitimated child, the Trial Court opined:

It is undisputed that when Macaria A. Torres was born on June 20, 1898, her parents, Leon Arbole
and Margarita Torres, had the capacity to marry each other. There was no legal impediment for them
to marry It has also been established that Macaria A. Torres had been taken care of, brought up and
reared by her parents until they died. The certificate of baptism (Exh. "G") also shows that Macaria
Torres was given the family name of Arvisu, which is also the family name of her father, Leon
Arbole, and that her father is Leon Arvisu and her mother is Margarita Torres. Such being the case,
Macaria A. Torres possessed the status of an acknowledged natural child. And when her parents
were married on June 7, 1909, she became the legitimated daughter of on Arbole and Margarita
Torres. 6

Private respondents appealed. On April 2, 1973, the then Court of Appeals   rendered the judgment sought to
7

be set aside herein, the decretal part of which states:

Wherefore, judgment is hereby rendered in Civil Case No. 5505:

(1) Declaring that Macaria A. Torres is not the legitimated child of the spouses Leon Arbole
and Margarita Torres;

(2) Declaring that Lot No. 551 of the Sta Cruz de Malabon Estate is a conjugal partnership property
of the spouses Leon Arbole and Margarita Torres; and

(3) Adjudicating one-half (1/2) of Lot No. 551 of S.C. de Malabon Estate to Macaria Torres, and the
other half (1/2) in equal shares to Alfredo, Tomas, Amado, Salud, Demetria and Adelina, an
surnamed Narciso, legitimate children and heirs of Antonina Santillan, since Vicente Santillan is
already dead. The parties may make the partition among themselves by proper instruments of
conveyance, subject to confirmation by the Court. In fairness, however, to the parties, each party
should be alloted that portion of the lot where his or her house has been constructed, as far as this is
possible. In case the parties are unable to agree upon the partition, the Court shall appoint three
commissioners to make the partition.

As to Civil Case No. 5547, the same is hereby dismissed.

Without costs in both cases.  8

The Appellate Court was of the opinion that:

Macaria A. Torres is not a legitimated daughter of Leon Arvisu Arbole and Margarita Torres, the
former not having been legally acknowledged before or after the marriage of her parents. As
correctly pointed out by the appellants in their brief, the fact that she was taken cared of, brought up
and reared by her parents until they died, and that the certificate of baptism (Exhibit "C") shows that
she was given the family name of Arvisu did not bestow upon her the status of an acknowledged
natural child.

Under Article 121 of the old Civil Code, the governing law on the matter, children shall be considered
legitimated by subsequent marriage only when they have been acknowledged by the parents before
or after the celebration thereof, and Article 131 of the same code provides that the
acknowledgement of a natural child must be in the record of birth, in a will or in some public
document. Article 131 then prescribed the form in which the acknowledgment of a natural child
should be made. The certificate of baptism of Macaria A. Torres (Exhibit "C") is not the record of
birth referred to in Article 131. This article of the old Civil Code 'requires that unless the
acknowledgement is made in a will or other public document, it must be made in the record of birth,
or in other words, in the civil register (Samson vs. Corrales Tan, 48 PhiL 406).  9

Evidence II.
A Motion for Reconsideration and for New Trial, dated April 16, 1973, was filed by petitioner. In support thereof,
petitioner submitted a typewritten Sworn Statement, dated March 5, 1930, of spouses Leon Arvisu (Arbole) and
Margarita Torres,  reading in full as follows:
10

SWORN STATEMENT

We, Leon Arvisu and Margarita Torres husband and wife respectively, of majority age, and residents
of the Municipality of Tanza, Province of Cavite, P.I., after being duly sworn to according to law
depose and say

That Macaria de Torres is our legitimized daughter she being born out of wedlock on the 26 th of
June 1898 all Tanza, Cavite, but as stated she was legitimized by our subsequent marriage.

That at the time of her birth or conception, we, her parents could have married without dispensation
had we desired.

That as natural child our aforesaid daughter was surnamed de Torres after that of her mother's at
the time she was baptized as per record on file in the Church.

That as a legitimized daughter she should now be surnamed Arvisu after her father's family name.

Wherefore, it is respectfully requested to anybody concerned that proper remedy be made for the
change of the surname of said Macaria de Torres as desired.

In testimony hereof, we hereunto signed out names at Tanza, Cavite, this 5th day of March 1930.

(Thumbmarked) (Thumbmarked)
LEON ARVISU MARGARITA TORRES

Signed in the prsence of:

(Sgd.) Illegible (Sgd.) Macaria Bautista

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

UNITED STATES OF AMERICA )

PHILIPPINE ISLANDS )
MUNICIPALITY OF TANZA ) ss
PROVINCE OF CAVITE )

Subscribed and sworn to before me this 5th day of March 1930. The affiant Leon Arvisu exhibited to
me no cedula certificate being exempt on account of going over 60 years of age and Margarita
Torres having exhibited no cedula certificate being exempt on account of her sex.

Witness my hand and seal of office on the date and place aforesaid.

CONSTANCIO T. VELASCO
Notary Public, Cavite Province
Until Dec. 31, 1930.

Not. Reg. No. 56

P. No. 2
Book No. III Series of 1930. 11
Evidence II.
The reason given for the non-production of the notarial document during trial was that the same was only found by petitioner's daughter, Nemensia A. Bautista,
among the personal belongings of private respondent, Vicente Santillan, an adverse party, after his death and who may have attempted to suppress it. Private
respondents, for their part, argued against new trial, and contended that it is not newly discovered evidence which could not have been produced during the trial by
the exercise of due diligence.

The Decision of the Appellate Court was rendered by a Division of three, composed of Justices Jesus Y. Perez,
Jose N. Leuterio and Luis B. Reyes, ponente. When the Motion for Reconsideration and New Trial was considered,
there was disagreement, possibly as to whether or not new trial should be granted in respect of the sworn statement
of March 5, 1930. A Special Division of five was then formed, composed of Justices Antonio Lucero Magno S.
Gatmaitan, Lourdes P. San Diego, Jose N. Leuterio and Luis B. Reyes (Justice Perez having retired or having
disqualified himself). In a minute resolution of August 24, 1973, the Division of five, by a vote of three or two, denied
both reconsideration and new trial.

To warrant review, petitioner, has summarized her submission based on two assignments of error. The first was
expressed as follows:

Although the Court of Appeals is correct in declaring that Macaria A. Torres is not the
legitimated child of the spouses Leon Arbole and Margarita Torres, it has overlooked to
include in its findings of facts the admission made by Vicente Santillan and the heirs of
Antonina Santillan (herein respondents) that Macaria A. Torres and Vicente Santillan and
Antonina Santillan are brother and sisters with a common mother Margarita Torres and they
are the legal heirs and nearest of relatives of Margarita Torres, and as a consequence thereof,
the Court of Appeals had drawn an incorrect conclusion in adjudicating the entire share of
Margarita Torres in the conjugal property solely to Vicente Santillan and the heirs of Antonina
Santillan. (emphasis supplied)

As we understand it, petitioner has conceded, with which we concur, that, without taking account of the
sworn statement of March 5, 1930, she cannot be considered a legitimated child of her parents. Continuous
possession of the status of a natural child, fact of delivery by the mother, etc. will not amount to automatic
recognition, but an action for compulsory recognition is still necessary, which action may be commenced only during
the lifetime of the putative parents, subject to certain exceptions. 12

The admission adverted to appears in paragraph 3 of private respondents' original complaint in the Ejectment
Case reading:

the plaintiffs and the defendant Macaria A. Bautista are the legal heirs and nearest of kins of
Margarita Torres, who died in Tanza, Cavite on December 20, 1931. (Emphasis supplied).

The statement, according to petitioner, is an admission of her legitimation and is controlling in the
determination of her participation in the disputed property.

We are not persuaded. In the Amended Complaint filed by private respondents in the same Ejectment Case,
the underlined portion was deleted so that the statement simply read:

That the plaintiffs are the legal heirs and nearest of kin of Margarita Torres, who died at Tanza,
Cavite, on December 20, 1931.

In virtue thereof, the Amended Complaint takes the place of the original. The latter is regarded as abandoned
and ceases to perform any further function as a pleading. The original complaint no longer forms part of the
record. 13

If petitioner had desired to utilize the original complaint she should have offered it in evidence. Having been
amended, the original complaint lost its character as a judicial admission, which would have required no
proof, and became merely an extrajudicial admission, the admissibility of which, as evidence, required its
formal offer. Contrary to petitioner's submission, therefore there can be no estoppel by extrajudicial
admission made in the original complaint, for failure to offer it in evidence. 14

It should be noted that in the Partition Case private respondents, in their Answer (parag. 4), denied the legitimacy of petitioner.
Evidence II.
The second error attributed to the Appellate Court has been pleaded as follows:

Also, the Court of Appeals has gravely abused its discretion when it denied the petition for new trial,
knowing as it does that the judgment is clearly erroneous in view of the evidence which is offered
and no amount of diligence on the part of the petitioner could it be produced in court at any time
before it was offered as it was found from the personal belongings of Vicente Santillan, an adverse
party, after his death.

It is our considered opinion that new trial was warranted to prevent a possible miscarriage of justice. Assuming that
the genuineness and due execution of the Sworn Statement of March 5, 1930 is established in accordance with
procedural due process, a new trial would resolve such vital considerations as (1) whether or not said Sworn
Statement qualifies as the public document prescribed in Article 131 of the old Civil Code; 15 (2) whether or not it conforms to
an act of acknowledgment by the parents after the celebration of their marriage as required by Article 121 of the same code; 16 and (3) whether or not petitioner's
signature as a witness to said document was the equivalent of the consent necessary for acknowledgment of an adult person under Article 133 of that
Code. 17 Affirmative answers would confer upon petitioner the status of a legitimated child of her parents, and would entitle her to enjoy hereditary rights to her
mother's estate.

Private respondents stress that since petitioner signed as a witness to the document she should be chargeable with
knowledge of its existence, and, therefore, the Sworn Statement was not newly discovered evidence. In our view,
the document can reasonably qualify as newly discovered evidence, which could not have been produced during
the trial even with the exercise of due diligence; specially if it really had been in the possession of Vicente Santillan,
an adverse party who, it was alleged, suppressed the document.

In the interest of judicial expediency, the new trial can be conducted by respondent Appellate Court, now
empowered to do so under Section 9 of Batas Pambansa Blg. 129.

WHEREFORE, this case is hereby remanded to the now Intermediate Appellate Court for new trial, and depending
on its outcome, said Court shall also resolve the respective participation of the parties in the disputed property,
inclusive of the estate of the deceased Vicente Santillan. No costs.

Evidence II.
3.) G.R. No. 182622               September 8, 2010

PHILIPPINE LONG DISTANCE TELEPHONE COMPANY [PLDT], Petitioner,

vs.
ROBERTO R. PINGOL, Respondent. (PINGOL WAS TERMINATED ASSERTED JANUARY 1, 2000 DATE THAT
HE WAS TERMINATED IN HIS PLEADINGS)

DECISION

MENDOZA, J.:

This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court filed by petitioner Philippine
Long Distance Telephone Company (PLDT) which seeks to reverse and set aside: (1) the December 21, 2007
Decision1 of the Court of Appeals (CA), in CA-G.R. SP No. 98670, affirming the November 15, 2006 2 and January
31, 20073 Resolutions of the National Labor Relations Commission (NLRC); and (2) its April 18, 2008
Resolution4 denying the Motion for Reconsideration of petitioner.

THE FACTS

In 1979, respondent Roberto R. Pingol (Pingol) was hired by petitioner PLDT as a maintenance technician.

On April 13, 1999, while still under the employ of PLDT, Pingol was admitted at The Medical City, Mandaluyong
City, for "paranoid personality disorder" due to financial and marital problems. On May 14, 1999, he was
discharged from the hospital. Thereafter, he reported for work but frequently absented himself due to his poor
mental condition.

From September 16, 1999 to December 31, 1999, Pingol was absent from work without official leave. According to
PLDT, notices were sent to him with a stern warning that he would be dismissed from employment if he continued to
be absent without official leave "pursuant to PLDT Systems Practice A-007 which provides that ‘Absence without
authorized leaves for seven (7) consecutive days is subject to termination from the service.’" 5 Despite the warning,
he failed to show up for work. On January 1, 2000, PLDT terminated his services on the grounds of
unauthorized absences and abandonment of office.

On March 29, 2004, four years later, Pingol filed a Complaint for Constructive Dismissal and Monetary
Claims6 against PLDT. In his complaint, he alleged that he was hastily dismissed from his employment on January
1, 2000. In response, PLDT filed a motion to dismiss claiming, among others, that respondent’s cause of
action had already prescribed as the complaint was filed four (4) years and three (3) months after his
dismissal.

Pingol, however, countered that in computing the prescriptive period, the years 2001 to 2003 must not be
taken into account. He explained that from 2001 to 2003, he was inquiring from PLDT about the financial
benefits due him as an employee who was no longer allowed to do his work, but he merely got empty
promises. It could not, therefore, result in abandonment of his claim.

On July 30, 2004, the Labor Arbiter (LA) issued an order granting petitioner’s Motion to Dismiss on the ground of
prescription, pertinent portions of which read:

As correctly cited by (PLDT), as ruled by the Supreme Court in the case of Callanta vs. Carnation Phils., 145 SCRA
268, the complaint for illegal dismissal must be filed within four (4) years from and after the date of dismissal.

Needless to state, the money claims have likewise prescribed.

Article 291 of the Labor Code provides:

Evidence II.
‘All money claims arising from employer-employee relations accruing from 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.’

WHEREFORE, let this case be, as it is hereby DISMISSED on the ground of prescription.

SO ORDERED.7

Pingol appealed to the NLRC arguing that the 4-year prescriptive period has not yet lapsed because PLDT failed to
categorically deny his claims. The NLRC in its November 15, 2006 Resolution reversed the LA’s resolution and
favored Pingol. The dispositive portion thereof reads:

WHEREFORE, the foregoing premises considered, the instant appeal is GRANTED and the Order appealed from is
REVERSED and SET ASIDE.

Accordingly, let the entire records of the case be REMANDED to the Labor Arbiter a quo for further proceedings.

SO ORDERED.8

PLDT moved for reconsideration but the same was denied by the NLRC in its Resolution dated January 31, 2007.

Unsatisfied, PLDT elevated the case to the CA by way of a petition for certiorari under Rule 65 alleging grave abuse
of discretion on the part of the NLRC in issuing the assailed resolutions.

The CA denied the petition in its December 21, 2007 Decision, the fallo of which reads:

WHEREFORE, the Petition for Certiorari is hereby DISMISSED. The Resolutions dated 15 November 2006 and 31
January 2007 of the National Labor Relations Commission are AFFIRMED.

SO ORDERED.9

PLDT moved for reconsideration but the same was denied by the CA in a Resolution dated April 18, 2008.

THE ISSUES

Not in conformity with the ruling of the CA, PLDT seeks relief with this Court raising the following issues:

THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT
PROBABLY IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE HONORABLE
SUPREME COURT.

THE HONORABLE COURT OF APPEALS DEPARTED FROM THE ACCEPTED AND USUAL COURSE
OF JUDICIAL PROCEEDINGS AS TO CALL FOR AN EXERCISE OF THE POWER OF SUPERVISION. 10

The issues boil down to whether or not respondent Pingol filed his complaint for constructive dismissal and money
claims within the prescriptive period of four (4) years as provided in Article 1146 of the Civil Code 11 and three (3)
years as provided in Article 291 of the Labor Code, 12 respectively.

Petitioner PLDT argues that the declaration under oath made by respondent Pingol in his complaint before
the LA stating January 1, 2000 as the date of his dismissal, should have been treated by the NLRC and the
CA as a judicial admission pursuant to Section 4, Rule 129 of the Revised Rules of Court.13 According to
petitioner, respondent has never contradicted his admission under oath. On the basis of said declaration,
petitioner posits that the LA was correct in finding that Pingol’s complaint for illegal dismissal was filed
beyond the prescriptive period of four (4) years from the date of dismissal pursuant to Article 1146 of the
New Civil Code.

Evidence II.
In his Comment,14 respondent Pingol counters that petitioner PLDT could not have sent those notices with warning
as that claim "has never been supported by sufficient proof not only before the Labor Arbiter but likewise before the
Court of Appeals."15 He further alleges that his dismissal is likewise unsupported by any evidence. He insists that
both the NLRC and the CA correctly stated that his cause of action has not yet prescribed as he was not formally
dismissed on January 1, 2000 or his monetary claims categorically denied by petitioner.

THE COURT’S RULING

The Court finds the petition meritorious.

Parties apparently do not dispute the applicable prescriptive period.

Article 1146 of the New Civil Code provides:

Art. 1146. The following actions must be instituted within four years:

(1) Upon an injury to the rights of the plaintiff;

x x x           x x x          x x x

As this Court stated in Callanta v. Carnation, 16 when one is arbitrarily and unjustly deprived of his job or means of
livelihood, the action instituted to contest the legality of one's dismissal from employment constitutes, in essence, an
action predicated "upon an injury to the rights of the plaintiff," as contemplated under Art. 1146 of the New Civil
Code, which must be brought within four (4) years.

With regard to the prescriptive period for money claims, Article 291 of the Labor Code states:

Article 291. Money Claims. – All money claims arising from employer-employee 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 barred forever.

The pivotal question in resolving the issues is the date when the cause of action of respondent Pingol accrued.

It is a settled jurisprudence that a cause of action has three (3) elements, to wit: (1) a right in favor of the plaintiff by
whatever means and under whatever law it arises or is created; (2) an obligation on the part of the named defendant
to respect or not to violate such right; and (3) an act or omission on the part of such defendant violative of the right
of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff. 17

Respondent asserts that his complaint was filed within the prescriptive period of four (4) years. He claims that his
cause of action did not accrue on January 1, 2000 because he was not categorically and formally dismissed or his
monetary claims categorically denied by petitioner PLDT on said date. Further, respondent Pingol posits that the
continuous follow-up of his claim with petitioner PLDT from 2001 to 2003 should be considered in the reckoning of
the prescriptive period.

Petitioner PLDT, on the other hand, contends that respondent Pingol was dismissed from the service on
January 1, 2000 and such fact was even alleged in the complaint he filed before the LA. He never
contradicted his previous admission that he was dismissed on January 1, 2000. Such admitted fact does
not require proof.

The Court agrees with petitioner PLDT. Judicial admissions made by parties in the pleadings, or in the
course of the trial or other proceedings in the same case are conclusive and so does not require further
evidence to prove them. These admissions cannot be contradicted unless previously shown to have been
made through palpable mistake or that no such admission was made.18 In Pepsi Cola Bottling Company v.
Guanzon,19it was written:

Evidence II.
xxx that the dismissal of the private respondent's complaint was still proper since it is apparent from its face that
the action has prescribed. Private respondent himself alleged in the complaint that he was unlawfully dismissed
in 1979 while the complaint was filed only on November 14, 1984. xxx (Emphasis supplied. Citations omitted.) 1avvphil

In the case at bench, Pingol himself alleged the date January 1, 2000 as the date of his dismissal in his
complaint20 filed on March 29, 2004, exactly four (4) years and three (3) months later. Respondent never
denied making such admission or raised palpable mistake as the reason therefor. Thus, the petitioner
correctly relied on such allegation in the complaint to move for the dismissal of the case on the ground of
prescription.

The Labor Code has no specific provision on when a claim for illegal dismissal or a monetary claim accrues. Thus,
the general law on prescription applies. Article 1150 of the Civil Code states:

Article 1150. The time for prescription for all kinds of actions, when there is no special provision which ordains
otherwise, shall be counted from the day they may be brought. (Emphasis supplied)

The day the action may be brought is the day a claim starts as a legal possibility.21 In the present case, January 1,
2000 was the date that respondent Pingol was not allowed to perform his usual and regular job as a maintenance
technician. Respondent Pingol cited the same date of dismissal in his complaint before the LA. As, thus, correctly
ruled by the LA, the complaint filed had already prescribed.

Respondent claims that between 2001 and 2003, he made follow-ups with PLDT management regarding his
benefits. This, to his mind, tolled the running of the prescriptive period.

The rule in this regard is covered by Article 1155 of the Civil Code. Its applicability in labor cases was upheld in the
case of International Broadcasting Corporation v. Panganiban 22 where it was written:

Like other causes of action, the prescriptive period for money claims is subject to interruption, and in the absence of
an equivalent Labor Code provision for determining whether the said period may be interrupted, Article 1155 of the
Civil Code may be applied, to wit:

ART. 1155. The prescription of actions is interrupted when they are filed before the Court, when there is a written
extrajudicial demand by the creditors, and when there is any written acknowledgment of the debt by the debtor.

Thus, the prescription of an action is interrupted by (a) the filing of an action, (b) a written extrajudicial demand by
the creditor, and (c) a written acknowledgment of the debt by the debtor.

In this case, respondent Pingol never made any written extrajudicial demand. Neither did petitioner make any
written acknowledgment of its alleged obligation. Thus, the claimed "follow-ups" could not have validly tolled the
running of the prescriptive period. It is worthy to note that respondent never presented any proof to substantiate his
allegation of follow-ups.

Unfortunately, respondent Pingol has no one but himself to blame for his own predicament. By his own allegations
in his complaint, he has barred his remedy and extinguished his right of action. Although the Constitution is
committed to the policy of social justice and the protection of the working class, it does not necessary follow that
every labor dispute will be automatically decided in favor of labor. The management also has its own rights. Out of
Its concern for the less privileged in life, this Court, has more often than not inclined, to uphold the cause of the
worker in his conflict with the employer. Such leaning, however, does not blind the Court to the rule that justice is in
every case for the deserving, to be dispensed in the light of the established facts and applicable law and doctrine. 23

WHEREFORE, the petition is GRANTED. The assailed December 21, 2007 Decision and April 18, 2008 Resolution
of the Court of Appeals, in CA-G.R. SP No. 98670, are REVERSED and SET ASIDE and a new judgment
entered DISMISSING the complaint of Roberto R. Pingol.

Evidence II.
4.) G.R. No. 182705               July 18, 2014

VICENTE JOSEFA, Petitioner,
vs.
MANILA ELECTRIC COMPANY, Respondent.

DECISION

BRION, J.:

We resolve the petition for review on certiorari  filed by petitioner Vicente Josefa, doing business under the name
1

and style of 747 Lumber and Construction Supply, to challenge the January 31, 2008 decision  and the April 29,
2

2008 resolution  of the Court of Appeals (CA) in CA-G.R. CV No. 87512.
3

The Factual Antecedents

At around 1 :45 p.m. on April 21, 1991, a dump truck, a j eepney and a car figured in a vehicular accident along
Ortigas Avenue, Pasig City.  As a result of the accident, a 45-foot wooden electricity post, three 75 KVA
4

transformers, and other electrical line attachments were damaged.  Upon investigation, respondent Manila Electric
5

Company (Meralco) discovered that it was the truck with plate number PAK-874 and registered in Josefa’s name
that hit the electricity post.
6

In a letter dated April 19, 1993, Meralco demanded from Josefa reimbursement for the replacement cost of the
electricity post and its attachments, but Josefa refused to pay.  Thus, on September 28, 1993, Meralco sued Josefa
7

and Pablo Manoco, the truck driver, for damages before the Regional Trial Court (RTC) of Pasig City. 8

Proceedings before the RTC

In its complaint, Meralco alleged that Manoco’s reckless driving resulted in damage to itsproperties. It also imputed
primary liability on Josefa for his alleged negligence in the selection and supervision of Manoco. It thus prayed for
the indemnification of the amount of ₱384,846.00 as actual damages, ₱50,000.00 as attorney’s fees, ₱10,000.00 as
litigation expenses, and the costs of the suit.
9

In defense, Josefa denied thatManoco was his employee when the accident occurred. He also maintained that he
exercised the diligence of a good father of a family in the selection and supervision of all his employees. As a
counterclaim, he sought the payment of attorney’s fees for Meralco’s filing of a baseless complaint. 10

On January 11, 1994, Meralco amended its complaint to correct the name "Pablo Manoco" toPablo Manojo Bautista
(Bautista),  but soon dropped him as a party defendant in the case for failure to serve him summons.
11 12

A. Evidence for Meralco

During trial, Meralco offered the testimonies of six witnesses as well as documentary evidence to substantiate its
claim for damages against Josefa:

Juan Fernandez, Meralco’s senior legal investigator, testified that he arrived at the scene of the accident at around
2:30 p.m. on that fateful day and saw Meralco employees installing a new electricity post. He interviewed the people
in the vicinity who told him that it was the truck that rammed the electricity post.  He thus proceeded to the police
13

station at Caruncho Complex, Pasig City and talked toSPO2 Alexander Galang who informed him that the owner of
the offending vehicle was Josefa.  Fernandez also identified and authenticated the investigation report dated April
14

21, 1991  (Exhibit "A") summarizing the result of his investigation.  Elmer Albio identified himself as the driver of the
15 16

jeepney that was involved in the accident. He testified thata truck suddenly hit the rear of his jeepney while he was
driving along OrtigasAvenue, Pasig City; he thus lost control of the jeepney and hit a Nissan car on the other lane of
the road. Thereafter, the truck hit the electricity post.

Evidence II.
SPO2 Manuel Valiente testified that he immediately went to the scene of the accident after a concerned citizen went
to the police station and informed him about the accident.  However, he could no longer recall the truck’s exact
17

position with reference to the electricity post at the time of his arrival at the scene of the accident. 18

SPO2 Galang stated that one of his functions as a traffic accident investigator was to record vehicular accidents in
the police blotter book. He identified and authenticated a certified true copy of the police blotter dated January 7,
1994 (Exhibit "B") but admitted that he neither saw nor investigated the accident. 19

Vitaliano Espiritu, Meralco’s foreman,testified that he replaced the damaged electricity post, transformers, and other
electrical line attachments after receiving an emergency radio call from a Meralco personnel. 20

Carlos Zapanta, Meralco’s supervising accountant, affirmed that Meralco incurred actual damages totaling
₱384,846.00. To support his finding, he identified and authenticated two pieces ofevidence, the memorandum dated
October 7, 1992 (Exhibit "C") and the document dated March 29, 1993 (Exhibit "D"). Exhibit "C" is a letter from
Meralco’s legal department requesting the accounting department for a computation of actual damages.  On the 21

other hand, Exhibit "D" provides a detailed computation of actual damages that Meralco allegedly suffered.  On 22

cross-examination, Zapanta stated that the computation was based on "supplementary time sheets," "trip tickets,"
and other documents provided by Meralco’s distribution office;  however, Meralco did not present these documents
23

during trial.

In an order dated January 15, 1997, the RTC admitted all documentary evidence that Meralco offered after its
presentation of testimonial evidence. 24

B. Evidence for Josefa

Upon Meralco’s presentment of evidence, Josefa filed a demurrer to Evidence  , but was denied by the
25

RTC.  Josefa assailed the denial of his demurrer in a petition for certiorari before the CA which, however, affirmed
26

the RTC rulings.  Thereafter, Josefa filed a motion for extension to file a petition for review on certiorari before the
27

Court. After we denied the motion for its procedural infirmities,  the RTC ordered Josefa to present his evidence-in-
28

chief. The RTC eventually declared the case as submitted for decision without Josefa’s evidence-in-chief due to the
numerous and unreasonable delays that he incurred in the presentation of evidence. 29

The RTC Ruling

In a decision dated April 10, 2006,the RTC dismissed the complaint for insufficiency of evidence. The RTC held that
Meralco failed to establish that it was the truck that hit the electricity post. The RTC ruled that SPO2 Galang’s
account of the accident was merely hearsay since he did not personally witness the incident. It alsodid not give
probative value to the police blotter entry dated January 7, 1994 since the accident had long occurred in 1991. The
RTC likewise denied Meralco’s claim for actual damages for lack of evidentiary support. 30

The CA Ruling

The CA reversed the RTC ruling and held that the RTC erred in disregarding the parties’ stipulation at the pre-trial
that it was the truck that hit the electricity post. The CA also found that Bautista was Josefa’s employee when the
accident occurred since Josefa did not specifically deny this material allegation in the amended complaint. It likewise
noted that the sheriff’s return stated that Bautista was under Josefa’s employ until 1993.

The CA concluded that the fact thatthe truck hit the electricity post was sufficient to hold Josefa vicariously liable
regardless of whether Bautista was negligent in driving the truck. In the same breath, the CA also stated that the
employer’s presumptive liability in quasi-delicts was anchored on injuries caused by the employee’s negligence. It
further ruled that Josefa failed to rebut the presumption that he negligently selected and supervised Bautista in
employment since he did not present his evidence-inchief during trial. Even assuming thatBautista was not Josefa’s
employee, the CA maintained that Josefa would still be liable for damages since the law presumes that the
registered owner has control of his vehicle and its driver at the time of the accident. It thus ordered Josefa to pay
Meralco: (1) ₱384,846.00 as actual damages; (2) ₱50,000.00 as attorney’s fees; (3) ₱10,000.00 as expenses of
litigation; and (4) double the costs of the suit.

Evidence II.
Josefa filed the present petition after the CA denied  his motion for reconsideration.
31 32

The Petition

Josefa argues that the CA gravely erred in reversing the RTC’s factual findings. He insists that the finding that it was
the truck that hit the electricity post lacks evidentiary support. Furthermore, Meralco failed to substantiate its claim
for actual damages by competent testimonial and documentary evidence. Josefa likewise asserts that Meralco is not
entitled to attorney’s fees since it also contributedto the delay in the proceedings. He points out that Meralco sought
for postponements of hearings during trial and failed to assist the sheriff in serving the summons to Bautista. 33

The Respondent’s Position

In its Comment, Meralco takes the opposite view that it is the RTC ruling that is unsupported by evidence. Meralco
maintains that the RTC erroneously ruled in favor of Josefawho did not present his evidence-inchief during trial.
Meralco also posits that Josefa’s vicariously liability finds support in Articles 2176 and 2180 of the Civil Code which
hold the employer primarily liable for damages caused by the employee who acted within the scope of his assigned
tasks. It also asserts that Josefa’s unjustified refusal to pay its just and valid claim for actual damages warrants the
award of attorney’s fees. 34

The Issues

This case presents to us the following issues:

(1) Whether the truck with plate number PAK-874 hit the electricity post;

(2) Whether Bautista exercised due diligence in driving when the truck hit the electricity post;

(3) Whether Josefa is vicariously liable for Bautista’s negligence under paragraph 5, Article 2180 of the Civil
Code;

(a) Whether there is an employer-employee relationship between Bautista and Josefa;

(b) Whether Josefa exercised the diligence of a good father of a family in the selection and supervision of
Bautista; and

(4) Whether Meralco is entitled to actual damages, attorney’s fees, and expenses of litigation.

Our Ruling

We partially affirm the CA’s ruling.

I. The Court may review factual

questions in a petition for review on
certiorari when a conflict exists in
findings of the lower courts

We are aware that the issues beforeus involve factual questions which require us to review the presented pieces of
evidence before the trial court. While a petition for review on certiorariprecludes this Court from entertaining factual
issues, we can review the pieces of evidence, by way of exception, when a conflict exists in the findings of the RTC
and the CA.  We see this exceptional situation here and thus examine the relevant pieces of evidence presented
35

before the trial court.

II. Bautista’s negligence was the

proximate cause of the property
damage caused to Meralco

Evidence II.
A. The truck hit the electricity post

Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the
damage done. This fault or negligence, if there is no pre-existing contractual relation between the parties, is called
quasi-delict.  Thus, for a quasi-delict case to prosper, the complainant must establish: (1) damages to the
36

complainant; (2) negligence, by act or omission, of the defendant or by some person for whose acts the defendant
must respond, was guilty; and (3) the connection of cause and effect between such negligence and the
damages.  With respect to the third element, the negligent act or omission must be the proximate cause of the
37

injury.

Contrary to the CA’s finding, the parties did not stipulate that the truck hit the electricity post. The pre-trial order
shows that the parties merely agreed that the truck "was involvedin an accident on April 21, 1991 at around 1:45
o’clock in the afternoon along Ortigas Avenue, Rosario, Pasig City." The parties in fact posed the issue of whether
the truck rammed the electricity post as one of the factual questions to be resolved by the trial court during the pre-
trial conference. 38

We also agree with Josefa that Fernandez and SPO2 Galang’s testimonies regarding the truck hitting the electricity
post are hearsay and should not be given credence. Fernandez and SPO2 Galang merely testified and conveyed to
the court matters only narrated to them by other people who were not presented in court. Hearsay evidence has no
probative value because it is merely the witness’ recitation of what someone else has told him, whether orally or in
writing. A witness can testify only to those facts which are derived from his own perception. 39

Nonetheless, Meralco has sufficiently established the direct causal link between the truck and the electricity post
through Abio’s testimony. Abio categorically stated during trial that he saw the truck hit the electricity post. We find
his first-hand account of the incident during the directexamination frank and straightforward. More importantly,
Josefa failed to impeach the veracity of Abio’s testimony during the cross-examination. Abio even reiterated that it
was Josefa’s truck that rammed the electricity post.  We thus give full faith and credence to his positive, unrebutted,
40

and categorical declaration on the witness stand, made under solemn oath, that it was the truck that caused
damage to Meralco’s property.

Even without Abio’s testimony, it does not escape this Court’s attention that Josefa judicially admittedin his motions
and pleading that his truck hit the electricity post. In a motion to dismiss dated March 17, 1997, Josefa stated:

"1. This action was commenced by plaintiff to recover from defendant the sum of ₱384,846.00 as actual damages
resulting from the vehicular mishap which occurred on April 21, 1991 along Ortigas Avenue, Rosario, Pasig City,
Metro Manila, whereby defendant’s dump truck with plate No. PAK 874 hit and bumped plaintiff’s 45-foot wooden
pole;  " (emphasis and underline ours)
41

Josefa further declared in his motion for reconsideration dated February 22, 2008:

[T]he manner who and why the accident occurred was not explained. In the absence of any description on such
important aspect, fault or negligence cannot be properly imputed to Pablo Manojo Bautista simply because the truck
he was then driving bumped to electric post. The causal connection between the fault or negligence and the
damage must be shown. x x x Analyzing the testimony of Elmer Abio, what was established is the following:

a) Somebodybumped the back of the jeepney he was driving on April 21, 1991;

b) When his back was bumped, he had no control because it was so sudden;

c) He bumped the approaching car, while the truck bumped into the Meralco post that three (3) transformers;

d) The pole with 3 transformers fell on the truck.

It may be asked: "Who was that somebody that bumped the back of Abio" "What was the reason why the truck
bumped the post?""What happened to the car that was bumped by Abio because he had no control?" "Which
happened first, the bumping of the back of Abio or the bumping of the post by the truck?" "Was the bumping of the
Evidence II.
back of Abio and the bumping of the car the proximate cause why the truck hit the Meralco post?"  (Emphases and
42

underlines ours) Lastly, Josefa pleaded in his petition before this Court:

Nowhere in the records was it shown how and why the accident occurred on April 21, 1991.

In the absence of any description on such important aspect, fault or negligence cannot be properly imputed to
petitioner, simply because his truck bumped into Meralco’s electricity post. The causal connection between the
petitioner’s supposed negligence and the damage was not shown. Neither was it proved tobe the proximate cause
of the damage.  (Emphases and underlines ours)
43

These statements constitute deliberate, clear and unequivocal admissions of the causation in fact between the truck
and the electricity post. Judicial admissions made by the parties in the pleadings or in the course of the trial or other
proceedings in the same case are conclusive and do not require further evidence to prove them. These admissions
cannot be contradicted unless previously shown to have been made through palpable mistake or that no such
admission was made.  A party who judicially admits a fact cannot later challenge this fact for the reason that judicial
44

admissions remove an admitted fact from the field of controversy. 45

B. Bautista is presumed to be
negligent in driving the truck
under the doctrine of res ipsa
loquitur

Contrary to the CA’s opinion, the finding that it was the truck that hit the electricity post would not immediately result
in Josefa’s liability. It is a basic rule that it is essentially the wrongful or negligent act or omission that creates the
vinculum jurisin extra-contractual obligations.  In turn, the employee’s negligence established to bethe proximate
46

cause of the damage would give rise to the disputable presumption that the employer did not exercise the diligence
of a good father of a family in the selection and supervision of the erring employee. 47

Nonetheless, in some cases where negligence is difficult to prove, the doctrine of res ipsa loquitur permits an
inference of negligence on the part of the defendant or some other person who is charged with negligence where
the thing or transaction speaks for itself.  This doctrine postulates that, as a matter of common knowledge and
48

experience and in the absence of some explanation by the defendant who is charged with negligence, the very
nature of occurrences may justify an inference of negligence on the part of the person who controls the
instrumentality causing the injury. In other words, res ipsa loquitur is grounded on the superior logic of ordinary
human experience that negligence may be deduced from the mere occurrence of the accident itself. 49

The procedural effect of res ipsa loquiturin quasi-delict cases is that the defendant’s negligence is presumed.  In 1awp++i1

other words, the burden of evidence shifts to the defendant to prove that he did not act with negligence.  This 50

doctrine thus effectively furnishes a bridge by which the complainant, without knowledge of the cause of the injury,
reaches over to the defendant, who knows or should know the cause, for any explanation of care exercised by him
to prevent the injury.  For this doctrine to apply, the complainant must show that: (1) the accident is of such
51

character as to warrant an inference that it would not have happened except for the defendant’s negligence; (2) the
accident must have been caused by an agency or instrumentality within the exclusive management or control of the
person charged with the negligence complained of; and (3) the accident must not have been due to any voluntary
action or contribution on the part of the person injured.

The present case satisfiesall the elements of res ipsa loquitur. It is very unusual and extraordinary for the truck to hit
an electricity post, an immovable and stationary object, unless Bautista, who had the exclusive management and
control of the truck, acted with fault or negligence. We cannot also conclude that Meralco contributed to the injury
since it safely and permanently installed the electricity post beside the street. Thus, in Republic v. Luzon
Stevedoring Corp.,  we imputed vicarious responsibility to Luzon Stevedoring Corp. whose barge rammed the
52

bridge, also an immovable and stationary object. In that case, we found it highly unusual for the barge to hit the
bridge which had adequate openings for the passage of water craft unless Luzon Stevedoring Corp.’s employee had
acted with negligence.

In his pleadings, Josefa raises the possibility that the fault or negligence of the jeepney and/or the car drivers may
have been the proximate cause of the damage. As a matter of defense, Josefa should have substantiated this
Evidence II.
theory considering that the burden of evidence has shifted against him after Meralco had established that it was the
truck that hit the electricity post. However, Josefa did not adduce any evidence in support of his defense during trial.
Consequently, we sustain the CA’s finding that there is a direct and proximate causal link between the truck and the
injury that Meralco suffered.

III. Josefa is vicariously liable under

paragraph 5, Article 2180 of the
Civil Code

A. There is an employer-
employee relations between
Bautista and Josefa

The finding that Bautista acted withnegligence in driving the truck gives rise to the application of paragraph 5, Article
2180 of the Civil Code which holds the employer vicariouslyliable for damages caused by his employees within the
scope of their assigned tasks. In the present case, Josefa avoids the application of this provision by denying that
Bautista was his employee at the time of the incident.

Josefa cannot evade his responsibility by mere denial of his employment relations with Bautista in the absence of
proof that his truck was used without authorization or that it was stolen when the accident occurred.  In quasi-delict
53

cases, the registered owner of a motor vehicle is the employer of its driver in contemplation of law.  The registered
54

owner of any vehicle, even if not used for public service, would primarily be responsible to the public or to third
persons for injuries caused while the vehicle was being driven on highways or streets. The purpose of motor vehicle
registration is precisely to identify the owner so that if any injury is caused by the vehicle, responsibility canbe
imputed to the registered owner. 55

B. Josefa failed to show that he

exercised the diligence of a
good father of a family in the
selection and supervision of
Bautista

In order for Josefa to be relieved of his vicarious liability, he must show that he exercised due diligence in the
selection and supervision of Bautista. In concrete terms, Josefa should show by competent object or documentary
evidence that he examined Bautista as to the latter’s qualifications, experience and service records prior to
employment. He should likewise prove by competent objector documentary evidence that he formulated standard
operating procedures, monitored their implementation and imposed disciplinary measures for breach of these
procedures.  However, Josefa failed to overcome the presumption of negligence against him since he waived his
56

right to present evidence during trial. We are thus left with no other conclusion other than to rule that Josefa is
primarily liable for all natural and probable consequences of Bautista’s negligence. 57

IV. Meralco is only entitled to

temperate damages with interest at
legal rate

A. Meralco failed to prove its

entitlement to actual damages

Despite Josefa’s vicarious liability inthis case, Meralco failed to point out the specific facts that afforda basis for its
claim for actual damages.  Actual damages cannot be presumed; they must be pleaded and proven in court in order
58

to be recoverable. One is entitled to an adequate compensation only for the pecuniary loss that he has adequately
proved based upon competent proof and on the best evidence obtainable by him. 59

We cannot give weight to Exhibit "D" as to the amount of actual damages for being hearsay.Exhibit "D" constitutes
hearsay evidence since it was derived on alleged pieces of documentary evidence that were not identified and
authenticated in court during trial. The trial court thus erred in even admitting Exhibit "D" in evidence whose contents

Evidence II.
were offered without any other competent evidence to corroborate them. Consequently, we delete the CA’s award of
actual damages for lack of evidentiary support.

B. Meralco is entitled to
temperate damages because it
clearly suffered pecuniary loss
as a result of Bautista and
Josefa’s negligence

Nonetheless, Meralco is entitled totemperate damages because there is no doubt that it suffered pecuniary loss as
a result of Bautista and Josefa’s negligence.  When the court finds that some pecuniary loss has been suffered but
60

the amount cannot, from the nature of the case, be proven with certainty, the court may award temperate damages
in the exercise of its sound discretion.  Considering the attendant circumstances of this case, we find the amount of
61

₱200,000.00 to be a fair and sufficient award by way of temperate damages.

C. Meralco is not entitled to

attorney’s fees and expenses
of litigation

The CA likewise erred in awarding Meralco attorney’s fees and expenses of litigation without explaining its basis.  In
1âwphi1

Buan v. Camaganacan,  we held that the text of the decision should state the reason why attorney's fees are being
62

awarded; otherwise, the award should be disallowed. Besides, no bad faith has been imputed to Josefa that would
warrant the award of attorney’s fees under Article 2208 (5) of the Civil Code. It is a settled rule that attorney'sfees
shall not be recovered as cost where the party’s persistence in litigation is based on his mistaken belief in he
righteousness of his cause.  There is also no factual, legal, or equitable justification that would justify the Court's
63

award of attorney's fees under Article 2208 (11) of the Civil Code.

D. The award of temperate

damages is subject to 6% per
annum reckoned from the
promulgation of the decision
until fully paid

Finally, we impose an interest rate of 6% per annum on temperate damages pursuant to the guidelines enunciated
in Eastern Shipping Lines v. CA,  as modified by Nacar v. Gallery Frames.  The interest rate shall commence to run
64 65

from the promulgation of this decision, the date when the amount of temperate damages has been determined with
certainty. WHEREFORE, premises considered, we PARTIALLY GRANT the petition. The January 31, 2008 decision
and the April 29, 2008 resolution of the Court of Appeals in CA-G.R. CV. No. 87512 is AFFIRMED with
MODIFICATION. Petitioner Vicente Josefa is ordered to pay respondent Manila Electric Company the amount of
₱200,000.00 as temperate damages with legal interest at 6% per annum from the promulgation of this decision until
full payment has been effected. Costs against petitioner Vicente Josefa.

Evidence II.
 5.) [ G.R. No. 220826, March 27, 2019 ]
HUN HYUNG PARK, PETITIONER, V. EUNG WON[*] CHOI, RESPONDENT.

DECISION
CAGUIOA, J:
Before this Court is a petition for review on certiorari[1] under Rule 45 of the Rules of Court filed by Petitioner Hun Hyung Park (Park)
against Respondent Eung Won Choi (Choi), assailing the Court of Appeals' (CA) Decision[2] dated March 30, 2015
and Resolution[3] dated September 30, 2015 in CA-G.R. SP No. 124173.
In the assailed Decision and Resolution, the CA reversed and set aside the Decision[4] dated December 23, 2011 and Order[5] dated
March 28, 2012 of the Regional Trial Court of Makati City - Branch 142 (RTC - Branch 142), which affirmed the Decision[6] dated April
26, 2011 of the Metropolitan Trial Court of Makati City - Branch 65 (MeTC), holding Choi civilly liable to pay Park the amount of One
Million Eight Hundred Seventy-Five Thousand Pesos (P1,875,000.00) plus interest of 12% percent per annum from August 31, 2000
until the whole amount is paid, P200,000.00 as attorney's fees, and P9,322.25 as reimbursement for filing fees.[7]
The Antecedent Facts
The present petition arose from a complaint[8] for estafa and violation of Batas Pambansa Blg. (B.P.) 22 filed by Park against Choi.
On June 28, 1999, Park, who was engaged in the business of lending money, extended a loan to Choi in the amount of
P1,875,000.00.[9] As payment for the loan, Choi issued PNB Check No. 0077133[10] in the same amount dated August 28, 1999 in favor
of Park.[11] On October 5, 1999, Park attempted to deposit the check to his bank account but the same was returned to him
dishonored for having been drawn against a closed account.[12] Thereafter, Park, through counsel, sent a letter to Choi on May 11, 2000
informing the latter of the dishonored check.[13] Based on the registry return receipt attached to Park's Complaint-Affidavit,[14] and as
stipulated by Choi during the pre-trial conference,[15] Choi received the demand letter on May 19, 2000 through a certain Ina Soliven.
[16]
 Nevertheless, Choi failed to resolve the dishonored check.
With the loan remaining unpaid, Park instituted a complaint against Choi for estafa and violation of B.P. 22. Following Park's complaint,
the Office of the City Prosecutor of Makati,[17] in an Information[18] dated August 31, 2000, charged Choi with one count of violation of
B.P. 22. The case was later docketed as Criminal Case No. 294690 before the MeTC.[19]
On arraignment,[20] Choi pleaded not guilty.[21] After the pre-trial conference and the prosecution's presentation of evidence, Choi filed
a Motion for Leave of Court to File Demurrer to Evidence along with his Demurrer. In his Demurrer, Choi asserted that the prosecution
failed to prove that he received the notice of dishonor.[22] Thus, Choi argued that since receipt of the notice of dishonor was not proven,
then the presumption of knowledge of insufficiency of funds — an element for conviction of violation of B.P. 22 — did not arise.[23]
Proceedings before the MeTC
The MeTC granted Choi's Demurrer in an Order dated February 27, 2003[24] and dismissed the criminal complaint. The
prosecution's Motion for Reconsideration of the dismissal was likewise denied, leading Park to appeal to the RTC of Makati City -
Branch 60 (RTC - Branch 60).[25] In his appeal, Park contended that the dismissal of the criminal case should not carry with it the
dismissal of the civil aspect of the case.[26]
Ruling of the RTC - Branch 60
The RTC - Branch 60,[27] in a Decision[28] dated September 11, 2003, granted Park's appeal. The RTC - Branch 60 held that while the
evidence presented was insufficient to prove Choi's criminal liability for B.P. 22, it did not altogether extinguish his civil
liability.[29] Accordingly, the RTC - Branch 60 ordered Choi to pay Park the face value of the check (P1,875,000.00) with legal
interest.[30]
Aggrieved by the RTC - Branch 60 Decision, Choi filed a Motion for Reconsideration. Acting on Choi's Motion for Reconsideration,
the RTC -Branch 60 reversed its September 11, 2003 Decision (finding that Choi was liable to Park for P1,875,000.00) and instead
ordered the remand of the case to the MeTC so that Choi may adduce evidence on the civil aspect of the case.[31]
Meanwhile, aggrieved by the RTC - Branch 60's remand of the case to the MeTC, Park elevated the matter to the CA.[32] The CA,
however, dismissed Park's petition on procedural grounds (i.e., the verification and certification of non-forum shopping failed to comply
with Section 4, Rule 7 of the Rules of Court;[33] failure to attach copies of the MeTC Order dismissing the criminal case, the motion for
leave to file demurrer to evidence and the demurrer; and finally, for attaching an uncertified and illegible copy of the RTC - Branch
60 Decision of September 11, 2003).[34]
Unsatisfied with the CA's dismissal of his petition on procedural grounds, Park assailed the CA dismissal of his petition before the
Court, and, in G.R. No. 165496 entitled "Hun Hyung Park v. Eung Won Choi,"[35] the Court, through its Second Division,[36] ruled that the
remand of the case to the MeTC for reception of Choi's evidence on the civil aspect of the case was proper, viz.:
This Court therefore upholds respondent's right to present evidence as reserved by his filing of leave of court to file the demurrer.

WHEREFORE, the petition is, in light of the foregoing discussions, DENIED.

The case is REMANDED to the court of origin, Metropolitan Trial Court of Makati City, Branch 65 which is DIRECTED to forthwith set
Criminal Case No. 294690 for further proceedings only for the purpose of receiving evidence on the civil aspect of the case.
Costs against petitioner.

SO ORDERED.[37]
In a Resolution[38] dated June 29, 2007, the Court denied Park's Motion for Reconsideration from the above Decision. The
Court's Decision in G.R. No. 165496 attained finality on January 18, 2008.
Proceedings before the MeTC
With the proceedings now before the MeTC, the MeTC ordered the presentation of Choi's evidence on the civil aspect of the case.
However, in the course of the proceedings before MeTC, Choi repeatedly moved for several postponements, which postponements
eventually led the MeTC to issue its Order[39] dated March 7, 2011, declaring that Choi had waived his right to present evidence.
The specific incidents leading up to the MeTC Order dated March 7, 2011 are as follows:

Evidence II.
The MeTC initially scheduled the case for reception of Choi's evidence on July 16, 2008, but the same was declared a holiday. Hearing
was then reset to January 7, 2009, then to April 7, 2009 and to May 19, 2009 upon the instance of Choi. The case was again
rescheduled to August 5, 2009, but the same was again declared a holiday. On September 15, 2010, Choi asked for postponement on
the ground that he needed the assistance of an interpreter to assist him in translating his testimony from Korean to English.[40]
The MeTC granted Choi's request to reset the hearing from September 15, 2010 to November 23, 2010 in an Order[41] issued the same
day. In the Order, the court warned that "[i]n the event that the defense fails to present its evidence on the next scheduled hearing, its
right to do so will be deemed waived and the case will be considered submitted for resolution based on the prosecution's evidence."[42]
Notwithstanding the court's warning, in the scheduled hearing on November 23, 2010, Choi asked for another postponement on the
ground that the Certification as a Qualified Interpreter[43] issued by the Korean Embassy of the Philippines and presented by Choi's
interpreter, Han Jong[43a] Oh (Oh), certifies Oh's qualification as an interpreter in another case and not to the case then before the court.
[44]

The MeTC again granted Choi's motion for postponement, with a warning that the grant of postponement on November 23, 2010 would
be the last. The MeTC cautioned Choi that should he still be not ready by the next hearing, his right to present evidence would be
considered waived.[45]
Despite the warning, on the scheduled hearing of March 7, 2011, Choi asked for yet another postponement on the ground that his
previous counsel was retired from the practice of law and his new counsel was not prepared for the day's hearing. On that day, Park
objected to further postponement of the case considering that the last two postponements had already come with the court's warning
against further postponements.[46]
Ruling on what was by then the sixth motion for postponement by Choi, the MeTC, in an Order dated March 7, 2011, denied Choi's
motion for postponement and declared that his right to present evidence had been waived. Accordingly, the MeTC ruled that the case
was submitted for resolution.[47]
Subsequently, on April 26, 2011, the MeTC, rendered a Decision finding Choi civilly liable to Park, the dispositive portion of which
reads:
WHEREFORE, premises considered, Eung Won Choi is ordered to pay private complainant Hun Hyung Park the amount of
P1,875,000.00 representing the face value of the check subject of this case plus interest of 12% percent per annum from August
31, 2000 until the whole amount is paid, the amount of P200,000.00 by way of attorney's fees, and the amount of P9,322.25 as
reimbursement for the filing fees.
Costs against the accused.

SO ORDERED.[48]
Insofar as Choi's alleged indebtedness was concerned, the MeTC held that the prosecution had proven that the check subject matter of
the case was issued by Choi to Park in exchange of the cash loaned to him.[49] Choi, on the other hand, did not even adduce any
evidence to controvert Park's claim of indebtedness.[50] Consequently, finding that Choi had no valid defense against Park's claim of
indebtedness, the MeTC held that Choi was civilly liable to Park for the loan.[51]
On Choi's repeated motions for postponement, the MeTC observed that:

As early as May 12, 2008, the defense was ordered to present its evidence. In the interim, the parties negotiated for the settlement of
the case. The reception of defense evidence was postponed on several dates to accommodate the alleged negotiation for the
settlement of the case as well as due to the unavailability of a Korean interpreter to aid the accused.

In the Order of September 15, 2010, the defense was given one last chance to present evidence on November 23, 2010. Accused
again failed to present its evidence. In order to afford the accused his constitutional right to defend himself and to present evidence, he
was again given one last chance to present evidence on March 7, 2011. On said date, the handling lawyer, sent his son, Atty. Rainald
Paggao, who manifested that his father can no longer handle the case. On the same day, Atty. Jesus F. Fernandez verbally entered his
appearance as new counsel for the accused. Atty. Fernandez moved for a resetting of the case, which the Court denied considering the
objection of the private prosecutor, as well as due to the repeated warnings issued, and considering further the length of time afforded
the accused to present its (sic) evidence. The defense right (sic) to present evidence was deemed waived and the case was considered
submitted for resolution.[52]
Unsatisfied, Choi appealed the above MeTC Decision dated April 26, 2011 to the RTC - Branch 142.
The Ruling of the RTC - Branch 142
In its Decision, dated December 23, 2011, the RTC - Branch 142 affirmed the MeTC Decision and denied Choi's appeal, viz.:
All told, this Court finds that the imposition of civil liability against the accused-appellant is correctly decided by the lower court.

WHEREFORE, the instant appeal is hereby DENIED and the Decision dated 26 April 2011, rendered by the Metropolitan Trial Court,
Branch 65, Makati City is AFFIRMED IN TOTO.[53]
In this regard, the RTC - Branch 142 observed that:

In the 15 September 2010 Order of the lower [court], [Choi] was already given the last opportunity to present his defense on 23
November 2010, but still failed to introduce any. [In spite] of the warning, the lower court cancelled the hearing to afford the defense
another day, on 7 March 2011. It was on said date that the lower court was constrained to declare the right of [Choi] to present
evidence as deemed waived considering the prosecution's vigorous objection, the repeated warnings to [Choi] and the length of time
afforded to [Choi] to present his defense.

xxxx

Evidence II.
[Choi's] failure to adduce his evidence[,] is, clearly, attributable not to the lower court but to himself due to his repeated postponements.
If it were true that [Choi] wanted to adduce his evidence, he could have taken advantage of the ample opportunity to present, to be
heard and to testify in open court with the assistance of his counsel.[54]
Maintaining his position that he did not waive his right to present evidence, Choi filed a Motion for Reconsideration[55] of the
above Decision on March 6, 2012, scheduled for hearing on March 9, 2012.[56]
On March 7, 2012, the RTC - Branch 142 gave Park ten (10) days within which to file an Opposition (to the Motion for Reconsideration)
and ten (10) days to Choi to file a Reply to the Opposition upon receipt thereof.[57] On March 13, 2012, Park filed his opposition, which
was received by Choi on March 20, 2012.[58]
On March 28, 2012, the RTC - Branch 142 issued an Order denying Choi's Motion for Reconsideration. On March 30, 2012 - that is,
the day on which his ten (10) day period to file his Opposition to the Motion for Reconsideration was to expire - Choi filed a motion for
extension of time to file his reply.[59] Notably, the court had already denied Choi's Motion for Reconsideration two days prior, or on
March 28, 2012. Based on the record, Choi did not file a Reply to the Opposition to the Motion for Reconsideration.
Aggrieved, Choi filed a petition for review[60] under Rule 42 of the Rules of Court with the CA.
In his petition before the CA, Choi's arguments were two-fold: (i) the RTC violated his constitutional right to due process in denying his
motion for reconsideration even before his period to file a reply to Park's opposition had expired (i.e., Choi had until March 30, 2012 to
file a reply to the opposition, while the RTC - Branch 142 Order dismissing the motion for reconsideration was issued on March 28,
2012)[61] and (ii) the RTC erred in declaring his right to present evidence to have been waived for the simple reason that the day of
presentation of evidence was the day of the retirement of his lawyer.[62]
The Ruling of the CA
In its Decision dated March 30, 2015, the CA reversed the RTC -Branch 142 Decision dated December 23, 2011 and Order dated
March 28, 2012, viz.:
WHEREFORE, foregoing considered, the petition is GRANTED. The assailed Regional Trial Court's Decision dated December 23,
2011 and its Order of March 28, 2012 are REVERSED and SET ASIDE.
The Case is hereby REMANDED to the Metropolitan Trial Court, Branch 65, Makati City, for the reception of petitioner's evidence.
SO ORDERED.[63]
First, in remanding the case to the MeTC, the CA held that only a full-blown hearing would guarantee a fair resolution of the case.[64] To
the CA, the courts' strict adherence to the rules of procedure may be relaxed when a strict implementation of the rules would cause
substantial injustice to the parties. In particular, the CA held that several postponements were with "justifiable reasons,"[65] such as, in
the instances of the erroneous certification and the substitution of counsel.[66]
As to the other instances of postponement, the CA noted that:

While it is true that several motions for postponements have been recorded, it behooves on the courts to rationalize the reasons for the
postponements and to treat each case accordingly. What is foremost is to render substantive justice and give the parties their day in
court.

xxxx

We shall not touch on the claim of payments posed by [Choi] as the same can be best validated when [Choi] is allowed to present his
evidence.[67]
Second, with respect to the RTC - Branch 142's denial of Choi's Motion for Reconsideration two (2) days before the expiration of the
period within which he was to file a reply to the opposition, the CA, without making a categorical ruling on whether Choi was deprived of
his right to due process, simply ruled that "the failure of [Choi] to present [his] evidence was because of justified reasons beyond his
control."[68]
In a Resolution dated September 30, 2015, the CA denied Park's Motion for Reconsideration[69] for lack of merit.
Hence, this petition.
In a Resolution[70] dated January 11, 2016, the Court required Choi to comment on Park's petition. Choi filed his Comment[71] on January
16, 2017. On February 3, 2017, Park filed his Reply.[72]
Issue
The sole issue for the Court's resolution is whether the CA committed any reversible error in the issuance of the
assailed Decision dated March 30, 2015 and Resolution dated September 30, 2015.
Our Ruling
The petition is meritorious.
In resolving the issues raised in the present petition, the Court emphasizes at the outset that the dispute between the parties arose in
2000, or almost eighteen (18) years ago, and that the case has already been remanded to the MeTC on two occasions (i.e., by the
Court's Second Division in 2007 and by the CA in the assailed Decision and Resolution in 2015). Justice dictates, therefore, that the
Court resolve the present petition instead of remanding the same to the lower court. In this regard, the Court finds that the CA erred in
reversing the RTC - Branch 142) Decision dated December 23, 2011 and Order dated March 28, 2012, for the reasons that follow.
Contrary to the CA's ruling, Choi was not
deprived of due process.
The totality of circumstances painstakingly detailed above reveals that Choi was not deprived of due process, either: (i) in the
MeTC Order dated March 7, 2011, as affirmed by the RTC - Branch 142, declaring Choi to have waived his right to present evidence
after he moved for a sixth postponement; or (ii) in the RTC - Branch 142 Order dated March 28, 2012 denying his Motion for
Reconsideration two days before the lapse of the ten (10) day period given to him by the RTC to file his Reply to the Opposition (to the
Motion for Reconsideration).
First, contrary to the ruling of the CA, the MeTC, as affirmed by the RTC - Branch 142, was correct in ruling that Choi had waived his
right to present evidence.
Evidence II.
Claiming that substantive justice must be the determinative end of courts,[73] Choi argues that any grant of postponement must take into
consideration the reason for the postponement and the merits of the case of the movant.[74] To that extent, the Court agrees, and so
holds, that Choi had been provided with more than ample opportunity to present his case.
To begin with, the grant or denial of a motion - or, in this case, motions - for postponement is addressed to the sound discretion of the
court, which should always be predicated on the consideration that the ends of justice and fairness are served by the grant or denial of
the motion.[75] As the Court enunciated in Sibay v. Bermudez:[76]
x x x After all, postponements and continuances are part and parcel of our procedural system of dispensing justice. When no
substantial rights are affected and the intention to delay is not manifest with the corresponding motion to transfer the hearing having
been filed accordingly, it is sound judicial discretion to allow the same to the end that the merits of the case may be fully ventilated.
Thus, in considering motions for postponements, two things must be borne in mind: (1) the reason for the postponement, and (2) the
merits of the case of the movant. Unless grave abuse of discretion is shown, such discretion will not be interfered with either
by mandamus or appeal.[77] Because it is a matter of privilege, not a right, a movant for postponement should not assume
beforehand that his motion will be granted.[78]
Thus, We agree with the appellate court's finding that in the absence of any clear and manifest grave abuse of discretion resulting
in lack or in excess of jurisdiction, We cannot overturn the decision of the court a quo. More so, in this case, where the denial of the
motion for postponement appears to be justified.[79] (Emphasis and underscoring supplied)
In fact, pursuant to Sections 2[80] and 3[81] of Rule 30 of the Rules of Court, although a court may adjourn a trial from day to day, a
motion to postpone trial on the ground of absence of evidence can be granted only upon affidavit showing the materiality or relevancy
of such evidence, and that due diligence has been used to procure it. Rules governing postponements serve a clear purpose — to avert
the erosion of people's confidence in the judiciary.[82]
Consequently, in granting or denying motions for postponements, courts must exercise their discretion constantly mindful of the
Constitutional guarantee against unreasonable delay in the disposition of cases. In other words, while it is true that cases must be
adjudicated in a manner that is in accordance with the established rules of procedure, so is it crucial that cases be promptly disposed to
better serve the ends of justice. After all, justice delayed is justice denied.[83] Excessive delay in the disposition of cases renders inutile
the rights of the people guaranteed by the constitution and by various legislations.[84]
Here, Choi bewails the MeTC Order dated March 7, 2011 in which the court, after several warnings, declared Choi to have waived his
right to present evidence. The facts leading up to the MeTC  Order dated March 7, 2011, however, clearly show that the MeTC had
been very liberal in granting Choi's numerous motions for postponement, each time reminding Choi to come prepared to present his
evidence. In all these, Choi's propensity to disregard the opportunity given to him to present his evidence is palpable.
To be clear, trial was initially scheduled on July 16, 2008. After four motions for postponement (July 16, 2008 to January 7, 2009, then
to April 7, 2009, then to May 19, 2009, and to September 15, 2010) at Choi's instance, trial was set to proceed on September 15, 2010.
Come September 15, 2010, however, Choi again moved that the trial be postponed to November 23, 2010, asking for the first time the
assistance of an interpreter in translating his testimony from Korean to English.[85]
While the lower court granted Choi's by then sixth postponement, it did so with a stern warning that his failure to present evidence on
the scheduled date would result in his right to present evidence being deemed waived. Yet, on November 23, 2010, Choi again moved
for postponement on the excuse that the Korean Interpreter who was present to assist him had an erroneous certification (i.e., was a
Certified Qualified Interpreter, but the Certification issued by the Korean embassy was for another case). Using the certification issue as
reason, Choi again asked that the trial be postponed to March 7, 2011. On that day, Choi's counsel moved for another postponement
on the ground that Choi's previous counsel was retiring and this new counsel was not prepared to present evidence that day.
Based on the foregoing, it does not escape the Court's attention that from the time the MeTC gave Choi the opportunity to present his
evidence on July 16, 2008 until the issuance of the MeTC Order dated March 7, 2011 declaring Choi's right to present evidence to have
been waived, Choi had been given several opportunities — spanning almost three (3) years — to present his evidence.
There is no deprivation of due process when a party is given an opportunity to be heard, not only through hearings, but even through
pleadings, so that one may explain one's side or arguments.[86] Inasmuch as Choi had been given more than enough opportunity to
present his case, the Court agrees with the MeTC and the RTC that Choi had waived his right to present evidence. In this regard, Choi
cannot claim that he was "prevented from testifying"[87] by the trial court, considering that all the postponements in the proceedings were
at the instance of Choi.
In any event, the unpreparedness of counsel that led to the MeTC Order of March 7, 2011 cannot, by any stretch of imagination, justify
further delay in the proceedings to the detriment of Park's right to an expeditious resolution of what really is, at the end of the day, a
simple money claim.

Second, that the RTC - Branch 142 denied Choi's Motion for Reconsideration on March 28, 2012, or two days before the lapse of the
ten (10) day period given to Choi by the RTC to file his Reply to the Opposition (to the Motion for Reconsideration)  does not, by and of
itself, support Choi's claim of a violation of due process considering that, to begin with, the Reply to Opposition is limited to issues and
arguments raised in Park's Opposition, which in turn, is limited to the issues and arguments raised in Choi's own Motion for
Reconsideration.
Choi is liable to pay Park the principal
amount of P1,875,000.00 and
corresponding legal interests thereon.
Having dispensed with the procedural issues, the Court proceeds to determine the extent of Choi's liability to Park.

Suffice it to state that based on the records, it is clear that Choi is liable to Park for the loan extended by the latter to him. This is
so because, Choi in his Counter-Affidavit, already admitted that he borrowed money from Park, arguing only regarding
the extent of his liability — i.e., that what he owed was P1,500,000.00 and not P1,875,000.00. In his Counter-Affidavit, Choi
himself stipulated:

Evidence II.
"2. That the truth of the matter is that I borrowed from said complainant the amount of P1,500,000.00 on June 29, 1999 and he
thereupon issued to me two (2) International Bank Manager's Checks, to wit:
IEB Check No. 01022 6/29/99 - P1,000,000.00
IEB Check No. 01023 6/29/99 - [P]500,000.00
P1,500,000.00
Total:  
==========
3. That in place of a formal document such as a promissory note, [Park] required me instead to give him the subject check in
the amount of P1,875,000.00 which includes the interest of Twenty-Five percent (25%) which is equivalent to P375,000.00 and
the date of said check of August 28, 1999 served to indicate the maturity date of the two-month period within which the aforementioned
loan was to be paid. In other words, the subject check was not intended by us to be in payment of the loan but to serve merely as an
evidence of my indebtedness to the complaint in lieu of a promissory note as I have duly informed the complainant of the lack of
sufficient funds to cover the same check when I handed over to him that check.[88] (Emphasis and underscoring supplied)
Judicial admissions made by parties in the course of the trial in the same case are conclusive and do not require further
evidence to prove them.[89] They are legally binding on the party making them[90] except when it is shown that they have been
made through palpable mistake, or that no such admission was made,[91] neither of which was shown to exist in this
case. Thus, Choi himself having admitted liability, the only question that remains for the Court to resolve is the extent of such
liability.
In this regard, the Court finds that Choi is liable to pay Park the face value of the check in the amount of P1,875,000.00 as
principal. The Court notes that the only bases relied upon by Choi in support of his contention that P1,500,000.00 is the
principal and P375,000.00 to be the interest are his own allegations in his Counter-Affidavit. Without more, Choi's bare
allegations on the terms of the loan fail to persuade. This is so because in accordance with Article 1956 of the Civil Code, no
interest shall be due unless it has been expressly stipulated in writing. [92] Here, without further proof of any express
agreement that P375,000.00 of the P1,875,000.00 pertains to interest, the Court is predisposed, based on the facts of the case,
to rule that the entire principal amount owed by Choi to Park is the face value of the check, or P1,875,000.00.
In an attempt to further minimize liability, Choi raises the defense of payment and insists that he already paid the sum of P1,590,000.00
(P1,500,000.00 as principal and P90,000.00 as interest), and that the remaining amount that he owes Park is P285,000.00.[93] In
his Counter-Affidavit, Choi claims:
"5. That complainant is now demanding still for the payment of the face value of the check which is P1,875,000.00 notwithstanding his
awareness of the fact that I have already paid to him the total amount of P1,590,000.00 as of this date, thereby leaving an unpaid
balance of only P285,000.00.
6. That, attached hereto as Annex "A" the LIST of the instalment payments I made to complainant from August 28, 1999 up to February
22, 2000, together with documents evidencing some of such payments, as Annexes "B", "C" and "D"."[94] (Emphasis and underscoring
supplied; italics omitted)
Yet, other than mere allegation of payment of P1,590,000.00, Choi has adduced no evidence to prove the fact of payment. A party
claiming that an obligation has been discharged by payment has the burden of proving the same.[95] As aptly elucidated by the Court
in Alonzo v. San Juan:[96]
The law requires in civil cases that the party who alleges a fact has the burden of proving it. Section 1, Rule 131 of the Rules of Court
provides that the burden of proof is the duty of a party to prove the truth of his claim or defense, or any fact in issue by the amount of
evidence required by law. In this case, the burden of proof is on the respondents because they allege an affirmative defense, namely
payment. As a rule, one who pleads payment has the burden of proving it. Even where the plaintiff must allege [non-payment],
the general rule is that the burden rests on the defendant to prove payment, rather than on the plaintiff to prove [non-
payment]. The debtor has the burden of showing with legal certainty that the obligation has been discharged by payment.[97] (Emphasis
supplied)
As against Choi's allegation of payment, Park's categorical testimony that Choi owed him P1,875,000.00, coupled with the presentation
of the subject check constituting evidence of indebtedness and absent evidence on the part of Choi to the contrary, leads to the
conclusion that Choi in fact owes Park the full amount of P1,875,000.00.[98]
More importantly, Park, in his Reply-Affidavit, categorically testified that although Choi gave him a check for P1,590,000.00,
that amount was not in payment of PNB Check No. 0077133 (the P1,875,000.00 check dated June 28,1999), but was for the
payment of PNB Check No. 0077134 in the amount of P750,000.00 dated August 28, 1999 and PNB Check No. 0008013 in the
amount of P700,000.00 dated September 7, 1999.[99]
Given these facts, as correctly observed by the RTC - Branch 142, if Choi really did make a partial payment on the loan, then he would
have taken the check back as debtors would in the ordinary course of business.[100] Quite the contrary, the check for P1,875,000.00
remained in Park's possession who continued to make demands on the basis of the check.
Finally, even if the Court were to indulge Choi's claim that he handed Park a check for P1,590,000.00, it has not been shown,
much less proven, to the satisfaction of the Court whether those payments were made specifically by Choi for the purpose of
discharging his loan obligations to Park. As shown in Park's Reply-Affidavit:
"2. That after I gave him the cash of P1,875,000.00, he gave P100,000.00 to Moo Pyung Park as the latter's commission for bringing
him to me; then he handed P196,000.00 to me to pay for and in his behalf the rentals for 14 months of the warehouse he is renting
through me from Mr. Tony Arellano located at Cubao, Quezon City; likewise, he handed P1,500,000.00 to me to change it to
manager's checks which he said he will use in paying Samsung Electric Company which he did not want to pay in cash for
fear of bringing that much with him and which account (sic) for IEB Checks Nos. 01022 and 01023; and lastly[,] he gave me the
balance of P69,000.00 in payment on interest on the P1,875,000.00 for two months, i.e., July and August.
3. That I admit that he had indorsed in my favor several checks from different owners as enumerated in Annex "A" of his counter-
affidavit and he had issued two checks in my favor in the sum total of P1,590,000.00 but not in payment of the PNB Check No.
0077133 in the amount of P1,875,000.00 he issued to me in June 28, 1999 but of PNB Check No. 0077134 in the amount of
Evidence II.
P750,000.00 dated August 28, 1999 and the PNB Check No. 0008013 in the amount of P700,000.00 dated September 7, 1999
which he encash (sic) with me also in July 1999 and which he told me not to present for payment anymore as he will just replace
them with other checks. Copies of said checks are hereto attached as Annexes "D" and "E" and made as integral parts
hereof."[101] (Emphasis and underscoring supplied)
Given the foregoing, the Court therefore finds that: first, Choi was not deprived of due process, and was in fact, given more than ample
opportunity to present his case; and second, that, as correctly observed by the MeTC and subsequently affirmed by the RTC - Branch
142, Choi is liable to pay Park the amount P1,875,000.00 along with its corresponding legal interest.
A final note on interest. There are two types of interest - monetary interest and compensatory interest.[102] Interest as a compensation
fixed by the parties for the use or forbearance of money is referred to as monetary interest,[103] while interest that may be imposed by
law or by courts as penalty for damages is referred to as compensatory interest.[104] Right to interest therefore arises only by virtue of a
contract or by virtue of damages for delay or failure to pay the principal loan on which interest is demanded.[105]
Inasmuch as the parties did not execute a written loan agreement, and consequently, did not stipulate on the imposition of interest,
Article 1956 of the Civil Code, which states that "[n]o interest shall be due unless it has been expressly stipulated in writing," operates to
preclude the imposition and running of monetary interest on the principal. In other words, no monetary interest having been agreed
upon between the parties, none accrues in favor of Park.

Nevertheless, the moment a debtor incurs in delay in the payment of a sum of money, the creditor is entitled to the payment of interest
as indemnity for damages arising out of that delay. Article 2209 of the Civil Code provides that: "[i]f the obligation consists in the
payment of sum of money, and the debtor incurs in delay, the indemnity for damages, there being no stipulation to the contrary, shall be
the payment of the interest agreed upon, and in the absence of stipulation, the legal interest, which is six percent (6%) per annum."
Consequently, by operation of Article 2209 of the Civil Code, Choi becomes liable to pay Park compensatory interest to indemnify
Park for the damages the latter suffered as a result of Choi's delay in the payment of the loan. Delay in this case, pursuant to Article
1169 of the Civil Code,[106] begins to run from the time Park extrajudicially demanded from Choi the fulfillment of his loan obligation that
is, on May 19, 2000. There being no stipulation as to the rate of compensatory interest, the rate is six percent (6%) per annum pursuant
to Article 2209 of the Civil Code.
To be clear, however, Article 2212 of the Civil Code, which provides that "[i]nterest due shall earn legal interest from the time it is
judicially demanded, although the obligation may be silent upon this point," does not apply because "interest due" in Article 2212 refers
only to accrued interest. A look at the counterpart provision of Article 2212 of the new Civil Code, Article 1109 of the old Civil Code,
supports this. It provides:
Art. 1109. Accrued interest shall draw interest at the legal rate from the time the suit is filed for its recovery, even if the obligation
should have been silent on this point.
In commercial transactions the provisions of the Code of Commerce shall govern.

Pawnshops and savings banks shall be governed by their special regulations. (Emphasis and underscoring supplied)

In interpreting the above provision of the old Civil Code, the Court in Zobel v. City of Manila,[107] ruled that Article 1109 applies only to
conventional obligations containing a stipulation on interest. Similarly, Article 2212 of the new Civil Code contemplates, and therefore
applies, only when there exists stipulated or conventional interest.[108]
Finally, in accordance Eastern Shipping Lines, Inc. v. Court of Appeals[109] as further clarified by the Court in Nacar v. Gallery Frames,
[110]
 in the absence of an express stipulation as to the rate of interest that would govern the parties, the rate of legal interest for loans or
forbearance of any money, goods or credits and the rate allowed in judgments is twelve percent (12%) per annum computed from
default (i.e., the date of judicial or extrajudicial demand). With the issuance of Bangko Sentral ng Pilipinas (BSP-MB) Circular No. 799
(s. 2013), said rate of 12% per annum applies until June 30, 2013, and, from July 1, 2013, the new rate of six percent (6%) per
annum applies. Finally, when the judgment of the court awarding a sum of money becomes final and executory, the rate of legal
interest shall be 6% per annum from such finality until its satisfaction, the interim period being deemed to be by then an equivalent to a
forbearance of credit.[111]
WHEREFORE, premises considered, the petition is GRANTED. The Court of Appeals' Decision dated March 30, 2015
and Resolution dated September 30, 2015 in CA-G.R. SP No. 124173 are hereby REVERSED and SET ASIDE. The Decision of the
Regional Trial Court, Branch 142 dated December 23, 2011 and Order dated March 28, 2012, which affirmed the Metropolitan Trial
Court of Makati City - Branch 65 Decision dated April 26, 2011, are hereby REINSTATED.
Respondent Eung Won Choi is hereby ordered to pay Petitioner Hun Hyung Park the amount of One Million Eight Hundred Seventy-
Five Thousand Pesos (P1,875,000.00) representing the principal amount of the unpaid PNB Check No. 0077133 dated August 28,
1999, with legal interest at the rate of twelve percent (12%) per annum from May 19, 2000, the date of extrajudicial demand, until June
30, 2013;[112] and thereafter, six percent (6%) per annum[113] until this Decision becomes final and executory.

Evidence II.
 6.) G.R. No. 201193, June 10, 2019

TRANQUILINO AGBAYANI, PETITIONER, v. LUPA REALTY HOLDING CORPORATION,

RESPONDENT.

RESOLUTION

CAGUIOA, J.:

Before the Court is a Petition for Review on Certiorari1 (Petition) under Rule 45 of the Rules of Court
assailing the Decision2 dated September 14, 2011 (CA Decision) and the Resolution3 dated March 9,
2012 (CA Resolution) of the Court of Appeals4 (CA) in CA-G.R. CV No. 93912. The CA Decision
reversed and set aside the Decision5 dated June 15, 2009 rendered by the Regional Trial Court,
Branch 7, Aparri, Cagayan (RTC) in Civil Case No. 07-532. The CA Decision also dismissed the
complaint of petitioner Tranquilino Agbayani (Tranquilino) as well as the third-party complaint of
respondent Lupa Realty Holding Corporation (Lupa Realty), fourth-party complaint of Moriel Urdas
(Moriel) and the counterclaims. The CA Resolution denied the motion for reconsideration filed by
Tranquilino.

The Facts and Antecedent Proceedings

The CA Decision narrates the factual antecedents as follows: cralawred

The property subject of the instant case is a 91,899-square meter parcel of land, situated in Barrio
Sinungan, Sta. Ana, Cagayan, originally registered under OCT No. P-46041 in the name of x x x
Tranquilino Agbayani (Tranquilino), pursuant to Free Patent No. 587747 on 7 June 1979.

On 11 October 1999, Tranquilino, who was by then already residing in America, filed

a Complaint for Reivindicacion, Cancellation of Title and Document with Damages against
Lupa Realty Holding Corporation (Lupa Realty), through his brother, Kennedy Agbayani, and his
nephew, Vernold Malapira (Vernold). We note that Vernold is also written as "Bernold" in other parts
of the record, and is admitted to be the same "Bernard" referred to in the Complaint and in
the Special Power of Attorney as having been authorized by Tranquilino to file the instant case.

The Complaint alleged that sometime in April 1999, [Vernold] went to the Office of the Municipal
Treasurer of Sta. Ana, Cagayan to pay the real estate taxes on the subject property, but was told
that Lupa Realty was already the new owner thereof and that the tax declaration had already been
transferred to its name. Tranquilino further alleged that upon verifying with the Registry of
Deeds for Cagayan, [Vernold] discovered that the subject property was already registered
in the name of Lupa Realty under TCT No. T-109129 pursuant to a Deed of Absolute Sale
purportedly executed by Tranquilino on 29 October 1997 in favor of Lupa Realty, in
consideration of the sum of P425,500.00.

In his complaint, Tranquilino denied having executed said Deed of Absolute Sale, insisting that his
signature thereon must be a forgery because he was in America on 29 October 1997. Accordingly,
[he] prayed for the cancellation of Lupa Realty's TCT No. T-109129 and the reinstatement of OCT No.
P-46041 in his name, plus damages.

In its Answer, Lupa Realty countered that contrary to the allegation of Tranquilino that he

never sold the subject property, he sold the same to his brother, Nonito Agbayani
(Nonito), as shown by a notarized Deed of Absolute Sale executed on 21 January 1992. In
turn, Nonito sold the subject property to Moriel Urdas (Moriel) in a notarized Deed of
Absolute Sale, dated 30 May 1997. According to Lupa Realty, it acquired the subject
Evidence II.
property not from Tranquilino but from Moriel by way of a notarized Deed of Absolute Sale,
dated 29 October 1997.

Lupa Realty further insisted that it was an innocent purchaser for value and in good faith. Lupa
Realty explained that it was Moriel and his mother who registered the sale in the Registry of Deeds,
as shown by the Affidavit executed by Moriel's mother. According to Lupa Realty, it had no idea that
Moriel and his mother had used a falsified deed of sale with Tranquilino's forged signature in
registering the sale. Thus, Lupa Realty filed a third-party complaint against Moriel to enforce the
latter's warranty of a valid title and peaceful possession against the claims of third persons.

In his Answer to the Third-Party Complaint, Moriel denied having caused the registration of the sale
to Lupa Realty, and denied having prepared the falsified deed of sale that was used in transferring
the title to Lupa Realty. Moriel insisted that contrary to Lupa Realty's assertions, it was actually the
latter's personnel who registered the sale.

Moriel laid the blame squarely on Tranquilino for having entrusted his original certificate of title to his
brother Nonito, thereby making it possible for the latter to fraudulently transfer the property to an
innocent third person like Moriel. Thus, Moriel filed a Fourth-Party Complaint against Nonito, praying
that if it turns out that Tranquilino really did not sell the subject property to Nonito, the latter should
be made liable for whatever liability may be adjudged against [Moriel].

In his Answer (to the Fourth-Party Complaint), Nonito admitted to having signed the Deed of
Absolute Sale in favor of Moriel, but qualified that the execution of the same was "attended by undue
pressure considering that at that time, [Nonito] was of confused state of mind brought about by the
numerous unfortunate events that beset his family." According to Nonito, it was Moriel who prepared
the Deed of Absolute Sale, which [Nonito] mistakenly believed to be merely one of mortgage to
secure a loan that he had obtained from Moriel. Accordingly, Nonito prayed that the fourth-party
complaint against him be dismissed and that the Deed of Absolute Sale in favor of Moriel be nullified.

Curiously, during trial, despite Tranquilino's insistence that his signature on the deed of sale in favor
of Lupa Realty was forged, he did not present a handwriting expert to prove the alleged forgery.
Neither did Tranquilino present any evidence controverting Lupa Realty's allegations that he had sold
the property to his brother Nonito, who, in turn, transferred the property to Moriel, and the latter
eventually transferred the same to Lupa Realty.

Instead, Tranquilino presented only his nephew, Vernold, and his tenants, Felino Rizaldo (Felino)
and Florante Ruiz (Florante). [Vernold] testified on the matters contained in the Complaint; i.e.,
about how he discovered that the land is now registered in the name of Lupa Realty. While Felino and
Florante both testified that they were instituted as tenants in the property by the family of
Tranquilino since 1992 and no one has ever disturbed them in their possession thereof.

On the other hand, Lupa Realty presented its former employee, Demetria Balisi [(Demetria)], who
testified that she was one of the two witnesses to the deed of sale between Lupa Realty and Moriel.

Demetria further testified that because the OCT was in the name of Tranquilino and not Moriel, Lupa
Realty had asked for proof of Moriel's ownership thereof, and the latter submitted to them the deed
of sale between Tranquilino and Nonito, and the deed of sale between Nonito and Moriel. We note
that Tranquilino's counsel admitted in open court the existence of the deed of sale between
Tranquilino and Nonito.

Demetria acknowledged that none of the deeds of conveyances between Tranquilino and Nonito;
between Nonito and Moriel; and between Moriel and Lupa Realty - was used in registering the
transfer of the subject property to Lupa Realty. According to Demetria, it was Moriel's mother who
processed the registration, and this was further confirmed by Moriel's mother in an affidavit stating
Evidence II.
that they "were able to secure at (their) own ways and means a new Title of the subject property in
favor of [Lupa Realty]."

To prove that Nonito really sold the subject property to him, Moriel presented Onorio Rumbaoa
[(Onorio)], who testified that he was the agent of the sale between Nonito and Moriel. Onorio
testified that both Nonito and Moriel are his townmates and he arranged for the two to meet when
Nonito wanted to sell the subject property. According to Onorio, when he remarked to Nonito that the
OCT was not in his name, Nonito showed him the deed of sale executed by Tranquilino to prove that
he (Nonito) already own[ed] the subject property. Onorio testified that after Moriel agreed to
purchase the property, the three of them (Nonito, Moriel and Onorio) went to the notary public where
they signed the deed of sale, with Onorio as witness. Moriel corroborated the testimony of Onorio
with regard to the details of the sale to him of the subject property by Nonito.

Finally, Nonito testified that he only borrowed money from Moriel and denied having sold the subject
property to him. According to Nonito, he gave Moriel a collateral for the purported loan but it was not
the subject property. When asked on cross-examination what the collateral was, Nonito could not
say. When asked how Moriel came into possession of the OCT in Tranquilino's name, Nonito also
could not say.

After due proceedings, the trial court rendered a decision with the following disposition: cralawred

"WHEREFORE, premises considered, the Court declares and Orders that: cralawred

1. OCT (sic) No. P-109129 in the name of Lupa Realty is null and void, hence, the Register of Deeds,
Tuguegarao, Cagayan is ordered to immediately cancel the same;

2. TCT (sic) No. T-46041 in the name of the plaintiff is reinstated and the property subject of the
same is reconveyed to the plaintiff;

3. Defendant shall pay plaintiff attorney's fees in the amount of P30,000.00;

4. Third Party Defendant Moriel Urdas shall pay Defendant/Third Party Plaintiff Lupa Realty the
amount of P551,394 plus legal interest from the time the Third Party complaint was filed until full
satisfaction of this judgment;

5. Fourth Party Defendant Nonito Agbayani pays Third Party Defendant/Fourth Party Plaintiff Moriel
Urdas the amount of P286,698.32 plus legal interest from the time the Fourth Party complaint was
filed up to full satisfaction of this judgment;

6. For the same reason that the Court allows the plaintiff to collect attorney's fees from the
Defendant, the 3rd party defendant is likewise adjudged to pay the Third Party plaintiff reasonable
attorney's fees in the amount of P30,000.00. Likewise 4th party plaintiff is entitled to collect from the
4th party defendant the amount of P30,000.00 by way of attorney's fees.

The other damages sought in the 3rd party and 4th party complaints as well as the parties' respective
counter claims are denied for lack of merit.

SO ORDERED."

Hence, [the] appeal by [Lupa Realty to the CA.] 6

chanRoblesvirtualLaw1ibrary

Ruling of the CA

Evidence II.
The CA in its Decision dated September 14, 2011 granted the appeal. The CA held that the
conclusions reached by the RTC are not in accord with law and the evidence on record; therefore,
the reversal of the trial court's decision is warranted.7

The CA ruled that Tranquilino failed to discharge his burden to present clear and convincing evidence
to overthrow the presumption of regularity in the execution on January 21, 1992 of the Deed of
Absolute Sale (1992 DAS) in favor of his brother Nonito and to prove his allegation of forgery
regarding his signature.8 According to the CA, Tranquilino's insistence that he could not have signed
the 1992 DAS because he was in America at that time9 was insufficient.10 Further, the CA stated that
the fact that there is a Deed of Absolute Sale (1997 DAS) purportedly executed by Tranquilino on
October 29, 1997 in favor of Lupa Realty, which Moriel and his mother used in registering the sale to
Lupa Realty, is not sufficient in itself to invalidate Transfer Certificate of Title (TCT) No. T-109129 in
the name of Lupa Realty.11

In fine, the CA ruled in favor of the dismissal of Tranquilino's complaint based on the lack of
evidence regarding his forgery allegation and its postulation that his action for declaration of nullity
of the 1997 DAS is not the direct proceeding required by law to attack a Torrens certificate of title
since it cannot be collaterally attacked.12

The dispositive portion of the CA Decision states: cralawred

WHEREFORE, the Decision, dated 15 June 2009, of the Regional Trial Court, Branch 7, Aparri,
Cagayan, in Civil Case No. 07-532 is REVERSED and SET ASIDE. Tranquilino Agbayani's complaint,
as well as Lupa Realty's third-party complaint, Moriel Urdas' fourth-party complaint, and all parties'
counterclaims, are DISMISSED.

SO ORDERED.13
chanRoblesvirtualLaw1ibrary

Tranquilino filed a motion for reconsideration, which was denied by the CA in its Resolution14 dated
March 9, 2012.

Hence, the instant Rule 45 Petition. Lupa Realty filed its Comment15 dated October 8, 2012.
Tranquilino filed a Reply16 dated June 28, 2013.

The Issues

The Petition raises the following issues: cralawred

1. whether the CA erred in reversing the RTC Decision that declared the nullity of TCT No. T-109129
in the name of Lupa Realty;

2. whether the CA erred in reversing the RTC Decision on the ground that the RTC erred in ordering
the cancellation of the TCT under Lupa Realty's name because the action filed by Tranquilino
constitutes a collateral attack on a Torrens title; and

3. whether the CA erred in recognizing and protecting Lupa Realty's right as an innocent purchaser
for value (IPV).

The Court's Ruling

The Petition is meritorious.

Evidence II.
Rule 45 of the Rules of Court on Appeal by Certiorari to the Supreme Court mandates that: the
petition shall raise only questions of law;17 this mode of review is not a matter of right, but of sound
judicial discretion; and it will be granted only when there are special and important reasons
therefor.18 A Rule 45 review is warranted when there is finding by the Court that the court a quo has
decided a question of substance in a way probably not in accord with law or with the applicable
decisions of the Court.19

While only questions of law may be raised in a Rule 45 certiorari petition, there are admitted
exceptions, which includes the instance when there is conflict in the findings of fact of the trial court
and the CA. The instant case falls under this exception.

The RTC found that the 1992 DAS between Tranquilino and Nonito was established by preponderance
of evidence to be a falsified document;20 the 1997 DAS between Tranquilino and Lupa Realty was also
falsified;21 and Lupa Realty was not an IPV.22 On the other hand, the CA ruled that the 1992 DAS was
valid because Tranquilino was unable to prove that his signature therein was forged.23 The CA did
not, however, rule squarely on whether the 1997 DAS was falsified24 and whether Lupa Realty was an
IPV.25

Given the conflict in the findings of the RTC and the CA, a review of the facts is justified.

Tranquilino posits that both the 1992 DAS in favor of Nonito and the 1997 DAS in favor of
Lupa Realty, which Tranquilino purportedly executed, are spurious and false.

As to the 1997 DAS (Exh. "F"26), which is purportedly a unilateral sale in favor of Lupa Realty and
signed only by Tranquilino, he reproduces the following portion of the RTC Decision in support of his
argument regarding its falsity: cralawred

"What really boggles the mind of the court is the existence of the Deed of Sale (Exh. "F") dated Oct.
29, 1997 allegedly executed between Tranquilino Agbayani and LUpa Relaty (sic) and which was
registered and instrumental for the cancellation of OCT No. P-4601 [sic] and the issuance of TCT No.
T-109129. Worst, a careful study of said deed of sale and the Deed of Sale executed by and between
Moriel Urdas and Lupa Realty would reveal that the two deeds, although allegedly executed and
notarized on different dates, have the same Doc. No., Book No., Page No., and series. The defendant
[Lupa Realty] cannot feign ignorance and innocence on the existence of the Deed of Sale (Exh. "F").
It is a corporation whose business is, as apparent in its business name, mainly concerns real estate,
thus, it is incredible that it would entirely leave the transfer of the title into the hands of Moriel Urdas
and his mother. It is expected that it would exert due diligence in its transactions, it being in the
realty business. Defendant having uttered a Deed of Sale (Exh. "F"), which plaintiff has established
by preponderance of evidence to have been falsified and which Defendant impliedly admitted in its
Answer and Third Party Complaint as indeed falsified when it claimed that its title was derived from
the Deed of Sale executed in its favor by Third Party Defendant Moriel Urdas, Defendant cannot
[n]ow claim it was an innocent purchaser for value.

The operative act in the cancellation of TCT [sic] No. 4604 [sic] and the issuance of the TCT No.
109129 in favor of the defendant was the presentation with the Register of Deeds of falsified Deed of
Sale allegedly executed by Tranquilino Agbayani in favor of Lupa Realty."27
chanRoblesvirtualLaw1ibrary

The CA justified the validity of the sale to Lupa Realty and its TCT in this wise: cralawred

On the other hand, Lupa Realty presented sufficient proof of its lawful acquisition of the subject
property. The deeds of sale between Tranquilino and Nonito; between Nonito and Moriel; and
between Moriel and Lupa Realty show the legal tie that bind the parties and legally conveyed the
subject property to Lupa Realty.
Evidence II.
The fact that there is a Deed of Sale between Tranquilino and Lupa Realty that Moriel and his mother
used in registering the sale is not sufficient in itself to invalidate TCT No. T-109129 in the name of
Lupa Realty.28
chanRoblesvirtualLaw1ibrary

The "DEED ABSOLUTE SALE" (DAS Moriel-Lupa Realty; Exh. 2 Lupa"29) by and between Moriel and
Lupa Realty with "29 day of Oct 1997'' as date of execution, which bears both the signatures of
"Roberto P. Alingog" with "CTC No. 7968352, Issued at Cauayan, Isa[bela], Issued on 01/22/97" and
"Moriel C. Urdas" (but the acknowledgment does not reflect Moriel's name but the name of
"Luzviminda Urdas" (Moriel's spouse) without the specifics of her CTC information) bears the
following notarial information: "Doc. No. 47; Page No. 10, Book No. 11; Series of 1997."30

On the other hand, the "DEED ABSOLUTE SALE" (1997 DAS; Exh. "F"31) also bears "29 day
of Oct  1997" as date of execution; the name of "Roberto P. Alingog" with "CTC No. 7968352, Issued
at Cauayan, Isa[bela], Issued on 01/22/97" in the acknowledgment portion, together with
Tranquilino Agbayani and the specifics of his CTC, but Roberto P. Alingog is not a signatory thereto;
and the following notarial information: "Doc. No. 47; Page No. 10, Book No. 11; Series of 1997."32

The Court notes that the 1997 DAS contains this recital: "Their right thereto being duly registered in
accordance with the Land Registration Act and evidenced by Original Certificate of Title No. P-
26619 with Homestead Patent No. 119163."33 It must be noted that Tranquilino's title is Original
Certificate of Title (OCT) No. P-46041 with Free Patent No. 587747.34

In both documents, the Notary Public's name is illegible. However, the following entries below the
signature of the Notary Public are almost identical: cralawred

DAS Moriel-Lupa Realty:35 1997 DAS36

   
Notary Public Notary Public
   
Until Dec. 31. 1997 Until Dec. 31, 1997
PTR No. 5445937 S PTR No. 5445937- S
Issued at Ilagan, Isabela Issued at ILAGAN, ISABELA
Issued on January 8, 1997 Issued on JAN. 8, 1997

The Court agrees with the RTC that it is indeed mind boggling how two distinct documents
which were supposedly notarized on the same date by one Notary Public have identical
notarial details, i.e., document number, page number, book number and year series. Indeed, one
of them must be fake or false.

Based on all the facts narrated, it is the 1997 DAS which is sham or spurious. As noted above, these
are: (1) the similarity of its notarial details' with those of the DAS Moriel-Lupa Realty; (2) the recital
that it pertained to the land covered by "Original Certificate of Title No. P-26619 with Homestead
Patent No. 119163" and not to Tranquilino's OCT No. P-46041 with Free Patent No. 587747; (3) the
inclusion of Lupa Realty, represented by its President, Roberto P. Alingog, as a party and the CTC
details of Roberto P. Alingog, but who is not made a signatory thereto; (4) the identity of its date of
execution with that of the DAS Moriel-Lupa Realty; and (5) the identity of the notary public's details
in both 1997 DAS and the DAS Moriel-Lupa Realty.

Evidence II.
In addition, the Court does not lose sight of the fact that there is uncontested evidence
that Tranquilino could not have signed the 1997 DAS because he had left for California,
U.S.A. in April, 1989.37

It is likewise significant to note the fact that Lupa Realty did not even have the 1997 DAS
marked and offered as its evidence is a very strong indication of its falsity. In the Formal
Offer of Documentary Exhibits of Lupa Realty, the 1997 DAS was not marked and offered
as one of its exhibits.38 If the 1997 DAS was truly executed by Tranquilino and is genuine,
why did not Lupa Realty have it marked and offered as its documentary exhibit? The
answer is obvious: because Lupa Realty wanted to distance itself therefrom because it
might be accused as being complicit with Moriel and/or his mother in falsifying the 1997
DAS.

In People v. Sendaydiego,39 the Court stated the rule that if a person had in his possession a falsified
document and he made use of it (uttered it), taking advantage of it and profiting therefrom, the
presumption is that he is the material author of the falsification.40 Pursuant to Re: Fake Decision
Allegedly in G.R. No. 75242,41 the simulation of a public or official document, done in a manner as to
easily lead to error as to its authenticity, constitutes the crime of falsification.42 Under Rule 132,
Section 19(b), documents acknowledged before a notary public except last wills and testaments are
public documents. Further, it is presumed that "evidence willfully suppressed would be adverse if
produced."43

Article 1409(2) of the Civil Code provides that contracts "which are absolutely simulated or fictitious"
are inexistent and void from the beginning. It is also provided in Article 1346 that "[a]n absolutely
simulated or fictitious contract is void."

Justice Eduardo P. Caguioa discusses the concept and requisites of simulation in the following
manner: cralawred

x x x Simulation is the declaration of a fictitious intent manifested deliberately and in accordance with
the agreement of the parties in order to produce for the purpose of deceiving others the appearance
of a transaction which does not exist or which is different from their true agreement.44 Simulation
involves a defect in the declaration of the will. x x x Simulation requires the following: (1) A
deliberate declaration contrary to the will of the parties; (2) Agreement of the parties to the
apparently valid act; and (3) The purpose is to deceive or to hide from third persons although it is
not necessary that the purpose be illicit or for purposes of fraud. The above three requisites must
concur in order that simulation may exist. x x x45
chanRoblesvirtualLaw1ibrary

The three requisites are present in the 1997 DAS. There is a deliberate declaration that Tranquilino
sold the subject land to Lupa Realty, which is contrary to their will. The agreement appears on its
face to be a valid act. The purpose is to deceive third persons into believing that there was such a
sale between Tranquilino and Lupa Realty. The purpose, in this case, is evidently tainted with fraud.

Since the 1997 DAS is void, its registration is likewise void pursuant to Section 53 of Presidential
Decree No. (PD) 1529 (the Property Registration Decree), which provides that "any subsequent
registration procured by the presentation of a forged duplicate certificate of title, or a forged deed or
other instrument, shall be null and void." The registration of the 1997 DAS being null and void, it
follows that TCT T-109129 in the name of Lupa Realty is also null and void. Being null and void, it
should be cancelled.

Moreover, the Court is perplexed why the Registry of Deeds for the Province of Cagayan allowed the
registration of the 1997 DAS.

Evidence II.
While the Court has held that registration is a mere ministerial act by which a deed, contract or
instrument is sought to be inscribed in the records of the Office of the Register of Deeds and
annotated at the back of the certificate of title covering the land subject of the deed, contract or
instrument and is not a declaration by the state that such an instrument is a valid and subsisting
interest in land; it is merely a declaration that the record of the title appears to be burdened with
such instrument, according to the priority set forth in the certificate,46 and that no valid objection can
be interposed to the registration of a document by the Register of Deeds who finds nothing defective
or irregular on its face upon an examination thereof,47 the fact of the matter is that the 1997 DAS
is not regular on its face because, as duly noted above, it pertained to the land covered by OCT
No. P-26619 with Homestead Patent No. 119163. Presented with the 1997 DAS that has reference to
an OCT different from that of Tranquilino's title and to a Homestead Patent instead of a Free Patent,
the Register of Deeds concerned should not have allowed its registration because of the obvious or
patent irregularity appearing on the face of the 1997 DAS.

From the foregoing, the CA erred when it ruled that the TCT of Lupa Realty is valid.

With the declaration by the Court that the 1997 DAS is sham or spurious and the TCT in the
name of Lupa Realty is null and void, does it follow that the sale of the subject land to
Lupa Realty is also null and void? In other words, can Lupa Realty be nonetheless declared
as the lawful owner of the subject land despite the finding that the TCT issued in his favor
is void?

The resolution of this issue hinges on the validity of the 1992 DAS. If the 1992 DAS between
Tranquilino and Nonito is valid, then Nonito could have validly sold the subject land to Moriel and
Moriel could have thereafter validly sold it to Lupa Realty. The invalidity of Lupa Realty's TCT does
not necessarily render invalid its right of ownership over the subject land if the sales preceding the
sale to it by Moriel are valid.

As to the 1992 DAS, Tranquilino argues that the unqualified admission made during the pre-
trial proceedings in the RTC by Nonito, through his counsel on record, Atty. Frederick
Aquino, that there was no such sale between Tranquilino and Nonito is a judicial admission
that it is spurious, which dispenses with the need to present proof of the matter of fact
already admitted.48 The Pre-Trial Order dated April 22, 2003 states: "Atty. Aquino denied
that Tranquilino Agbayani executed a Deed of Absolute Sale in favor of Nonito Agbayani.
According to Atty. Aquino there was no such sale." 49

Regarding admissions by counsel of a party during the preliminary conference, Camitan v. Fidelity

Investment Corporation50 is instructive: cralawred

x x x Unfortunately for petitioners, their counsel admitted the genuineness of the owner's duplicate
copy of the TCT presented by Fidelity during the preliminary conference at the CA. The following
exchange is revealing: cralawred

J. MARTIN: cralawred

Counsel for the private respondent, will you go over the owner's copy and manifest to the
court whether that is a genuine owner's copy?

ATTY. MENDOZA: cralawred

Yes, Your Honor.

J. MARTIN: cralawred

Evidence II.
Alright. Make it of record that after examining the owner's copy of TCT NO. (T-12110) T-
4342, counsel for the private respondent admitted that the same appears to be a genuine
owner's copy of the transfer certificate of title. x x x

xxxx

The foregoing transcript of the preliminary conference indubitably shows that counsel for petitioners
made a judicial admission and failed to refute that admission during the said proceedings despite the
opportunity to do so. A judicial admission is an admission, verbal or written, made by a party in the
course of the proceedings in the same case, which dispenses with the need for proof with respect to
the matter or fact admitted. It may be contradicted only by a showing that it was made through
palpable mistake or that no such admission was made.51
chanRoblesvirtualLaw1ibrary

On the other hand, American jurisprudence sets the following parameters on judicial admissions: cralawred

A judicial admission is a formal statement, either by party or his or her attorney, in course
of judicial proceeding which removes an admitted fact from field of controversy. It is a
voluntary concession of fact by a party or a party's attorney during judicial proceedings.

Judicial admissions are used as a substitute for legal evidence at trial. Admissions made in the
course of judicial proceedings or judicial admissions waive or dispense with, the
production of evidence, and the actual proof of facts by conceding for the purpose of
litigation that the proposition of the fact alleged by the opponent is true. x x x

A judicial admission is a deliberate, clear, unequivocal statement of a party about a

concrete fact within that party's peculiar knowledge, not a matter of law. x x x In order to
constitute a judicial admission, the statement must be one of fact, not opinion. To be a judicial
admission, a statement must be contrary to an essential fact or defense asserted by the person
giving the testimony; it must be deliberate, clear and unequivocal x x x.

Judicial admissions are evidence against the party who made them, and are considered conclusive
and binding as to the party making the judicial admission. A judicial admission bars the admitting
party from disputing it. x x x

A judicial admission of fact may carry with it an admission of other facts necessarily implied from it.

xxxx

Judicial admissions may occur at any point during the litigation process. An admission in open court
is a judicial admission. x x x 52
chanRoblesvirtualLaw1ibrary

The admission by Nonito's counsel during the pre-trial proceedings before the RTC that
there was no sale between Tranquilino and Nonito qualifies as a judicial admission
because the statement is a deliberate, clear, unequivocal statement of a party's attorney
during judicial proceedings in open court about a concrete or essential fact within that
party's peculiar knowledge. Since such statement is a judicial admission, it does not require proof
according to Section 4, Rule 129 of the Rules of Court, which provides: cralawred

SEC. 4. Judicial admissions. - An admission, verbal or written, made by a party in the course of the
proceedings in the same case, does not require proof. The admission may be contradicted only by
showing that it was made through palpable mistake or that no such admission was made.

Evidence II.
Moreover, there was no palpable mistake on the part of Nonito's counsel in making the
admission because in the offer of Nonito's testimony on December 2, 2008, he stated that
"the land was the property in suit was never sold to him [Nonito] by his brother
Tranquilino Agbayani."53 That is not all. The admission by Nonito himself, on cross-
examination by Tranquilino's counsel, that Tranquilino was in the United States at the time
of the purported transaction54 supports the statement of the counsel of Nonito that there
was no sale between Tranquilino and Nonito.

Since there is judicial admission that there was no sale of the subject land between
Tranquilino and Nonito, affirmed anew during oral testimony by Nonito himself, then there
is no question that the 1992 DAS is void. The three requisites of a simulated contract are
existent. There is a deliberate declaration that Tranquilino sold the subject land to Nonito, which is
contrary to their will because there was no sale between them. The agreement appears on its face to
be a valid act. The purpose is to deceive third persons into believing that there was such a sale
between them.

Consequently, the CA committed egregious error when it made the finding that the 1992 DAS is
valid. Given that Tranquilino did not sell the subject land to Nonito, it could not have been sold by
Nonito to Moriel and Moriel could not, in turn, have sold it to Lupa Realty.

Lupa Realty's argument that Tranquilino's action for declaration of nullity of the 1997 DAS is not the
direct proceeding required by law to attack a Torrens certificate of title since it cannot be collaterally
attacked, upheld by the CA, is untenable.

In deference to the conclusiveness and indefeasibility of Torrens titles, a certificate of title shall not
be subject to collateral attack pursuant to Section 48 of PD 1529.

As to what constitutes a direct attack on a Torrens title, the Court observed in Firaza, Sr. v. Spouses
Ugay:55

The attack is considered direct when the object of an action is to annul or set aside such proceeding,
or enjoin its enforcement. Conversely, an attack is indirect or collateral when, in an action to obtain a
different relief an attack on the proceeding is nevertheless made as an incident thereof. Such action
to attack a certificate of title may be an original action or a counterclaim, in which a
certificate of title is assailed as void. x x x56
chanRoblesvirtualLaw1ibrary

Here, there is a direct attack on Lupa Realty's TCT.

Firstly, the Complaint filed by Tranquilino before the RTC is captioned: "For: Reivindicacion,
Cancellation of Title and Document with Damages."57

Secondly, the Complaint alleged: cralawred

7. That the "Deed Absolute Sale" [or 1997 DAS] (Annex "B") is a falsified document and the
signature purporting to be that of the plaintiff in said document is a forgery for the reason that he
never sold the land in suit to anybody; that he never signed said document; that he never received
P425,500.00 from the defendant; that he never appeared before Notary Public Agustin Ladera in
Cauayan, Isabela on October 29, 1997 because on that date he was in the United States of America.

8. That as a consequence, the ''Deed Absolute Sale" (Annex "B") should be declared null and void
and that Transfer Certificate of Title No. T-109129 (in the name of the defendant) should also be
declared null and void, and cancelled and that Original Certificate of Title No. P-46041 in the name of
the plaintiff should be revived and reinstated.58
Evidence II.
chanRoblesvirtualLaw1ibrary

Thirdly, the Complaint prayed that judgment be rendered for Tranquilino declaring, among others,
the nullity and ordering the cancellation of TCT No. T-109129 (in the name of Lupa Realty) and
ordering the revival and reinstatement of OCT No. P-46041 in the name of Tranquilino.59

The foregoing clearly show that the Complaint purposefully sought the cancellation of Lupa Realty's
TCT, which is a direct attack thereon.

With the pronouncement that there could not have been a valid sale of the subject land to Lupa
Realty, the latter cannot qualify as an IPV. Also, the Court totally agrees with the RTC that: cralawred

x x x [Lupa Realty] is a corporation whose business is, as apparent in its business name, mainly
concern[ed with] real estate, thus, it is incredible that it would entirely leave the transfer of the title
into the hands of Moriel x x x and his mother. It is expected that it would exert due diligence in its
transactions, it being in the realty business. x x x60
chanRoblesvirtualLaw1ibrary

Evidently, in allowing the falsified 1997 DAS to cause the cancellation of Tranquilino's OCT and the
issuance of a TCT in its name, Lupa Realty acted in bad faith.

WHEREFORE, the Petition is hereby GRANTED. The Decision dated September 14, 2011 and the
Resolution dated March 9, 2012 of the Court of Appeals in CA-G.R. CV No. 93912
are REVERSED and SET ASIDE. The Decision dated June 15, 2009 rendered by the Regional Trial
Court, Branch 7, Aparri, Cagayan in Civil Case No. 07-532 is REINSTATED with modifications: with
respect to no. 1: "OCT No. P-109129 in the name of Lupa Realty ..." should instead read "TCT No. T-
109129 in the name of Lupa Realty ..." and no. 2: "TCT No. T-46041 in the name of the plaintiff ..."
should instead read "OCT No. P-46041 in the name of the plaintiff ..."

Evidence II.
7.) G.R. No. 206770               April 2, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
NOEL PRAJES and ALIPA MALA, Accused-Appellants.

DECISION

REYES, J.:

Before the Court is an appeal from the Decision  dated May 30, 2012 of the Court of Appeals (CA) in CA-G.R. CEB
1

CR-HC No. 00462, which affirmed the Decision  dated June 29, 2004 of the Regional Trial Court (RTC) of Cebu
2

City, Branch 15, finding Noel Prajes (Prajes) and Alipa Mala (Mala) (accused-appellants) guilty for violation of
Section 5, Article II of Republic Act (R.A.) No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act
of 2002.

The Antecedents

The accused-appellants were accused of violating Section 5, Article II of R.A. No. 9165 via an Information filed with
the RTC of Cebu and docketed as Crim. Case No. CBU-63836. The accusatory portion of the Information reads:

That sometime on 04 September 2002, in the City of Cebu, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, conniving and confederating with each other and mutually helping one another,
with deliberate intent, did then and there sell, trade, dispense, deliver and/or give away to a National Bureau of
Investigation Operative who posed as buyer: White Crystalline substances having a total net weight of 195.6580
grams placed inside three (3) transparent plastic packs: positive for methylamphetamine hydrochloride, a dangerous
drug locally known as shabu, without authority of law. 3

The accused-appellants pleaded "not guilty" when arraigned. After pre-trial, trial on the merits ensued. 4

According to the prosecution, the National Bureau of Investigation (NBI) in Cebu City received reports that the
accused-appellants were engaged in the sale of illegal drugs. Following surveillance operations conducted during
the last week of August 2002, a buy-bust operation was organized by the NBI for September 4, 2002. 5

Thus, at around 1:00 p.m. on September 4, 2002, NBI’s informant, Rene Sabayton (Sabayton) transacted with the
accused-appellants for a supposed buyer’s purchase of shabu weighing 200 grams for ₱180,000.00.  At 4:00 p.m.,
6

the buy-bust team, headed by Senior Agent Atty. Angelito Magno (Atty. Magno) and composed of NBI Supervising
Agent Vicente Minguez (SA Minguez), Special Investigator Teodoro Saavedra (SI Saavedra), SI Ray Tumalon (SI
Tumalon), SI Danilo Garay and SA Rennan Oliva, proceeded to Kinasang-an, Pardo, Cebu City where the purchase
would be made. SI Tumalon was designated the poseur-buyer. Atty. Magno prepared the buy-bust money
amounting to ₱4,500.00, composed of nine ₱500.00 bills dusted with fluorescent powder and which were combined
with boodle money. 7

As previously arranged with Sabayton, Prajes met up with Sabayton and SI Tumalon in a makeshift house in
Kinasang-an, where Mala later joined them. Since Prajes had not brought with him the illegal drugs to be sold, the
group proceeded to his father’s house which was only 15 to 20 meters away from the makeshift house  and there, SI
8

Tumalon received the illegal drugs from Prajes.

While they were at the ground floor of the house, Prajes handed to SI Tumalon two packs of shabu having a total
weight of 100 grams. When SI Tumalon pointed out that he needed 200 grams, Prajes instructed Mala to produce
more stock. Mala left the house, then later came back with another pack, which he handed to SI Tumalon.
Thereafter, SI Tumalon gave one bundle of the buy-bust money to Prajes, and the other bundle to Mala. 9

Upon the accused-appellants’ receipt of the buy-bust money, SI Tumalon introduced himself to them as an NBI
agent. SI Tumalon made a "missed call" to SA Minguez’s phone, the team’s pre-agreed signal to indicate that the
Evidence II.
sale had been consummated, and then arrested the accused-appellants.  Soon thereafter, the other members of the
10

buy-bust team arrived. The accused-appellants were handcuffed and brought to the NBI office, where their
photographs and fingerprints were taken.  At the NBI office, SI Tumalon handed the buy-bust money and three
11

packs of shabu to SI Saavedra, who placed his markings on the packs of shabu. SI Saavedra also prepared the
letter-request for examination of the illegal drugs, which he personally turned over to Chemist Rommel
Paglinawan  of the Forensic Chemistry Section, Central Visayas Regional Office of the NBI. A laboratory
12

examination of the three packs sold by the accused-appellants to SI Tumalon confirmed that the specimen
contained methylamphetamine hydrochloride or shabu. An ultraviolet examination performed by the NBI also
confirmed the presence of fluorescent powder on the accused-appellants’ hands.

The accused-appellants denied the charge against them. Prajes claimed that at about 4:00 p.m. on September 4,
2002, he was sleeping at his house in Kinasang-an when a neighbor, Renante Paradero (Paradero), woke him up to
inform him that some persons were looking for him. He then proceeded to Paradero’s house and there saw
Sabayton, whom he had previously met in a "sniffing session" and who had called him up at around 1:00 p.m. on
September 4, 2002 for the purchase of shabu. Sabayton was with two companions, who inquired from Prajes about
the purchase. Prajes, Sabayton and his two companions then proceeded to the house of Prajes’ father, where
Prajes received the drugs from a person sent by a certain "Alex". Prajes handed the pack of shabu to Sabayton,
then was immediately handcuffed by SI Tumalon. Sabayton hit Prajes’ handcuffed right hand with money that was
brought by the buy-bust team. Thereafter, Prajes was taken to the NBI Office.

For Mala’s defense, witness Magdalena Abarquez claimed that at around 4:00 p.m. on September 4, 2002, she saw
Mala enter the house of Prajes. When he tried to leave the house, he was prevented by someone who was inside
the house.13

Sabayton was called on the witness stand by the defense as a hostile witness. He claimed that he was arrested by
NBI operatives on September 3, 2002. While at the NBI office, the operatives asked for a gift or "regalo" by giving
names of persons whom they could arrest, in exchange for his freedom. Thus, he gave the name of Prajes and
coordinated with the latter for the drug purchase.  After Prajes presented the shabu to Sabayton during the buy-bust
14

operation, he called on Mala to test and sniff the shabu. Before the latter could do so, SI Tumalon pointed a gun at
the accused-appellants and handcuffed them. When Prajes refused to receive the buy-bust money, SI Tumalon
slapped the money on Prajes’ handcuffed hands. Notwithstanding Sabayton’s participation in the buy-bust which led
to the arrest of the accused-appellants, he was neither released from jail nor relieved from prosecution for his
violation of R.A. No. 9165.15

The RTC Ruling

On June 29, 2004, the RTC of Cebu City, Branch 15, rendered a Decision  finding the accused-appellants guilty for
16

violation of Section 5, Article II of R.A. No. 9165, and sentencing them to each suffer the penalty of life imprisonment
and to pay fine of ₱500,000.00.  Dissatisfied with the trial court’s ruling, the accused-appellants appealed to the CA.
17

The CA Ruling

In a Decision  dated May 30, 2012, the CA affirmed in toto the decision of the RTC. The appellate court found no
18

credence in the denials that were posed by the accused-appellants. Instead, it found credible the evidence
presented by the prosecution to prove the elements of the crime of illegal sale of drugs, as well as its showing that
there was sufficient compliance by the NBI operatives with the rule on chain of custody.

The Present Appeal

Hence, the present appeal wherein the accused-appellants insist on the prosecution’s failure to prove their guilt
beyond reasonable doubt. The accused-appellants also question the subject drugs’ identity and the NBI’s
observance of the rule on the chain of custody. They argue that it was unclear as to who actually marked the subject
packs of shabu, and that there were no photographs and physical inventory of the seized items, even when the
same are required under the law.

This Court’s Ruling

Evidence II.
The appeal is bereft of merit.

At the outset, the Court reiterates the settled rule that "the findings of the trial court, its calibration of the testimonies
of the witnesses, and its assessment of the probative weight thereof, as well as its conclusions anchored on said
findings are accorded respect if not conclusive effect. This is truer if such findings were affirmed by the appellate
court. When the trial court’s findings have been affirmed by the appellate court, x x x, said findings are generally
binding upon us[,]"  save in settled exceptions such as: (1) when the inference made is manifestly mistaken, absurd
19

or impossible; (2) when there is grave abuse of discretion; (3) when the findings are grounded entirely on
speculations, surmises or conjectures; (4) when the judgment of the CA is based on misapprehension of facts; (5)
when the CA, in making its findings, went beyond the issues of the case and the same is contrary to the admissions
of both appellant and appellee; (6) when the findings of fact are conclusions without citation of specific evidence on
which they are based; (7) when the CA manifestly overlooked certain relevant facts not disputed by the parties and
which, if properly considered, would justify a different conclusion; and (8) when the findings of fact of the CA are
premised on the absence of evidence and are contradicted by the evidence on record.  Upon review, the Court has
20

determined that the present case does not fall under any of these exceptions. We find no cogent reason to deviate
from the factual findings, and consequent rulings, of the trial and appellate courts.

On the issue of chain of custody, Section 21 of R.A. No. 9165 mandates that "[t]he apprehending team having initial
custody and control of the [seized] drugs shall, immediately after seizure and confiscation, physically inventory and
photograph the same in the presence of the accused or the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice
(DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy
thereof[.]" In relation thereto, Section 21 of the law’s Implementing Rules and Regulations (IRR) provides in part:

SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources
of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment. — x x x:

(a) x x x the physical inventory and photograph shall be conducted at the place where the search warrant is served;
or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in
case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable
grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the
apprehending officer/team, shall not render void and invalid such seizures of and custody over said items[.]

These "[s]tatutory rules on preserving the chain of custody of confiscated prohibited drugs and related items are
designed to ensure the integrity and reliability of the evidence to be presented against the accused. Their
observance is the key to the successful prosecution of illegal possession or illegal sale of prohibited drugs." 21

In a line of cases, the Court has nonetheless explained that "while the chain of custody should ideally be perfect, in
reality it is not, ‘as it is almost always impossible to obtain an unbroken chain.’"  The limitation on chain of custody is
22

also recognized in the afore-quoted Section 21 of R.A. No. 9165’s IRR, as it states that non-compliance with the
rules’ requirements under justifiable grounds, as long as the integrity and evidentiary value of the seized items are
properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody
over said items. In resolving drug cases, we then repeatedly emphasize that "what is essential is ‘the preservation of
the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the
guilt or innocence of the accused.’" 23

On the issue of the subject drugs’ marking as part of the chain of custody requirement, the accused-appellants point
out that SI Tumalon and SI Saavedra both named SI Saavedra as the one who marked the seized drugs, but
witnesses SA Minguez and Atty. Magno each testified that it was SI Tumalon and the forensic chemist, respectively,
who effected such marking. The Court, however, agrees with the CA’s observation that although there were
conflicting accounts by the prosecution witnesses as to the person who actually marked the seized drugs, the failure
of SA Minguez and Atty. Magno to identify the said person could be readily explained by the fact that they had no
actual participation in the evidence’s marking. As against their conflicting statements, what were significant were the
testimonies of SI Tumalon and SI Saavedra, being the persons who actually seized, endorsed and marked the
evidence. Both agreed that following the accused-appellants’ arrest, the seized packs of shabu were handed by SI

Evidence II.
Tumalon to SI Saavedra, who was the one who placed the markings on the evidence,  before the same were
24

brought to the laboratory for examination. As aptly explained by the appellate court:

SA Minguez may have incorrectly assumed that it was SI Tumalon, their poseur-buyer, who made the markings on
the packs of shabu that were confiscated in the ensuing confusion. However, SI Tumalon himself testified that he
turned-over the drugs to SA Saavedra. Atty. Magno’s statement that it was "maybe our Forensic Chemist" who
made the markings on the three packs is inconsequential when considered with the positive testimonies of SI
Tumalon and SA Saavedra. SA Minguez and Atty. Magno assumed supporting roles. It was SI Tumalon who was in
the thick of things so to speak, as he was the poseur-buyer and he was the one who took the shabu from accused-
appellants and handed it to SA Saavedra for marking. Moreover, SA Saavedra’s identification of his own handwriting
puts any doubt to rest.  (Citations omitted)
25

The fact that the marking was performed by SA Saavedra only upon the buy-bust team’s arrival at the NBI office did
not adversely affect the prosecution’s case against the accused-appellants. Given the situation at the house where
the accused-appellants were caught in flagrante delicto and then arrested by the buy-bust team, the failure of SA
Saavedra to mark the seized drugs at the said site was justified. In his testimony before the trial court, SA Minguez
described that after the accused-appellants’ arrest, their neighbors interfered and rallied for the accused-appellants,
even compelling members of the buy-bust team inside the house to seek the immediate aid of their peers so that
they could leave the premises. 26

Even the failure of the prosecution to present a physical inventory and photograph of the seized drugs did not
render inadmissible the packs of shabu that were seized from the accused-appellants, especially as we consider
that the integrity and evidentiary value of the drugs did not appear to have been compromised. This was similar with
the Court's ruling in People v. Torres  and Ambre v. People,  wherein we affirmed the conviction of the accused
27 28

notwithstanding some deviations from the required procedure on physical inventory and photographs of the seized
items.1âwphi1

As against the accused-appellants' denial, an inherently weak defense, the evidence presented by the prosecution
deserves credence. The following elements of illegal sale of shabu were sufficiently established during the trial: (a)
the identities of the buyer and the seller, the object of the sale, and the consideration; and (b) the delivery of the
thing sold and the payment for the thing.  During a planned buy-bust operation, SI Tumalon served as a poseur-
29

buyer and was able to successfully purchase packs of shabu weighing 195 grams, more or less, from the accused-
appellants for a total consideration of ₱180,000.00. The payment was handed to the accused-appellants by SI
Tumalon. An examination conducted by the Forensic Chemistry Section, Central Visayas Regional Office, NBI in
Capitol Site, Cebu City, confirmed that the packs contained methylamphetamine hydrochloride.  There was nothing
30

on record which would indicate that the substance purchased by SI Tumalon from the accused-appellants during the
buy-bust operation was different from the subject of the NBI Forensic Chemistry Section's examination, and that
which was eventually presented by the prosecution in court to establish their case against the accused-appellants.

WHEREFORE, the Decision dated May 30, 2012 of the Court of Appeals in CA-G.R. CEB CR-HC No. 00462 is
AFFIRMED.

Evidence II.
8.) G.R. No. 184758               April 21, 2014

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
SONNY SABDULA y AMANDA, Appellant.

DECISION

BRION, J.:

We review the February 8, 2008 decision  of the Court of Appeals (CA) in CA-G.R. CR. H.C. No. 02726, which
1

affirmed the January 29, 2007 decision  of the Regional Trial Court (RTC), Branch 82, Quezon City. The RTC
2

decision found appellant Sonny Sabdula y Amanda guilty beyond reasonable doubt of violating Section 5,  Article II
3

of Republic Act (R.A.) No. 9165 (the Comprehensive Dangerous Drugs Act of 2002). The trial court imposed on him
the penalty of life imprisonment.

THE FACTS

The prosecution charged the appellant with violation of Section 5, Article II of R.A. No. 9165 before the RTC, under
an Information that states:

That on or about the 1st day of February, 2004, in Quezon City, Philippines, the said accused not being authorized
by law to sell, dispense, deliver, transport or distribute any dangerous drug, did then and there, willfully,
and unlawfully sell, dispense, deliver, transport, distribute or act as broker in the said transaction, 0.10 (zero point
ten) gram of white crystalline substance containing Methylamphetamine Hydrochloride, a dangerous drug.

CONTRARY TO LAW. 4

The appellant pleaded not guilty to the charge.  The prosecution presented Police Officer (PO) 2 Bernard Centeno at
5

the trial, while the testimonies of PO3 Joselito Chantengco and PO1 Alan Fortea became the subject of the parties’
stipulations. The appellant and Shirley Sabdula, on the other hand, took the witness stand for the defense.

The evidence for the prosecution established that in the morning of February 1, 2004, a confidential informant told
the members of the Central Police District (CPD) in Baler, Quezon City about the illegal drug activities of one alias
"Moneb" at a squatter’s area in San Roque II, Quezon City. Acting on this information, operatives of the Station
Intelligence and Investigation Branch, Baler Police Station 2, CPD formed a buy-bust team composed of PO2
Centeno (the designated poseur-buyer), PO1 Fortea, PO2 Rolando Daduya, PO1 Victor Porte, PO1 Louise
Escarlan and PO1 Noel de Guzman. 6

At around 7:00 p.m., the buy-bust team and the informant went to the target area. When they arrived there, the
informant introduced PO2 Centeno as his "kumpare" to the appellant. PO2 Centeno asked the appellant if he could
"score" two hundred pesos worth of shabu.  The appellant responded by taking out a plastic sachet from his pocket,
7

and handing it to PO2 Centeno. PO2 Centeno in turn handed ₱200.00 to the appellant, and then gave the pre-
arranged signal.

As the other members of the buy-bust team were rushing to the scene, PO2 Centeno introduced himself as a police
officer and arrested the appellant. Afterwards, he frisked the appellant and recovered the buy-bust money from his
right pocket.8

The police thereafter brought the appellant to the Baler Police Station 2 for investigation. Upon arrival, PO2 Centeno
gave the seized plastic sachet to SPO2 Salinel who, in turn, handed it to PO3 Chantengco who made a request for
laboratory examination that PO3 Centeno brought, together with the seized item to the Central Police District Crime
Laboratory for analysis.  Per Chemistry Report No. D-140-2004 of Engr. Leonard Jabonillo (the forensic chemist),
9

the submitted specimen tested positive for the presence of methylamphetamine hydrochloride (shabu). 10

Evidence II.
In his defense, the appellant testified that between 8:00 to 9:00 p.m. on January 29, 2004, he was on board a taxi at
C5 Road, Fort Bonifacio, Taguig City, when a group of about five (5) men pointed their guns at him and told him to
get out of the vehicle. After he alighted, the armed men told him to board a mobile car  and brought him to the Baler
11

Police Station. At the station, the police asked him to remove his clothes, and confiscated his wallet, bracelet, cap
and ₱300.00. The police then told him that he would be detained for drug charges and that he would be jailed for 40
years.12

Shirley’s testimony was summarized by the RTC as follows:

x x x On February 1, 2004, she was at home when her brother was brought to Precinct 2, Baler[,] Quezon City. On
January 29, 2004, at about 11:00 p.m., she received a text message from Allan Fortea, a policeman, telling her to
call a certain number if she loves her brother. The next day, at about 8:00 a.m., she called Fortea at the number he
gave her. He told her that his brother at Station 2 Baler Quezon City and asked her to produce ₱200,000.00 as
ransom for her brother. She asked him if he could talk to him. He allowed her and her brother to talk and the latter
pleaded to her for help and cried. Fortea told her not to talk in their dialect and took the phone. Fortea then told her
to see him at SM North Edsa Car Park on January 30, 2004 at 7:00 p.m. Fortea did not come. At about 9:00 p.m.,
she proceeded to Station 2 and met Fortea. He asked her about the money but she told him she cannot afford it.
Her brother was then detained when she failed to give in to the said demand. 13

The RTC, in its decision dated January 29, 2007, found the appellant guilty beyond reasonable doubt of illegal sale
of shabu, and sentenced him to suffer the penalty of life imprisonment. It also ordered the appellant to pay a
₱500,000.00 fine.

THE CASE BEFORE THE CA

The appellant appealed his conviction to the CA where his appeal was docketed as CA-G.R. CR. H.C. No. 02726. In
its decision of February 8, 2008, the CA affirmed the RTC decision.

The CA held that the prosecution successfully established all the elements of illegal sale of shabu: PO2 Centeno,
the poseur-buyer, positively identified the appellant as the person who gave him shabu weighing 0.10 gram in
exchange for ₱200.00. The CA also ruled that the buy-bust team were presumed to have performed their duties
regularly. It added that the appellant failed to impute improper motive on the part of the arresting officers.

The CA further held that the chain of custody over the seized plastic sachet were properly established, even if the
time of the actual marking of the seized item had not been shown.

THE PETITION

In his present petition,  the petitioner claims that he was not selling drugs when the police arrested him. He adds
14

that his alibi was corroborated by his sister, Shirley. He also argues that the seized plastic sachet was not properly
marked by the police.

The Office of the Solicitor General (OSG) counters that the police were presumed to have performed their duties in
a regular manner. It further maintains that the chain of custody over the seized drug was not broken. 15

THE COURT’S RULING

After due consideration, we resolve to ACQUIT the appellant for the prosecution’s failure to prove his guilt beyond
reasonable doubt.

We restate at the outset the constitutional mandate that an accused shall be presumed innocent until the contrary is
proven beyond reasonable doubt. The burden lies with the prosecution to overcome this presumption of innocence
by presenting the required quantum evidence; the prosecution must rest on its own merits and must not rely on the
weakness of the defense. If the prosecution fails to meet the required evidence, the defense does not even need to
present evidence in its own behalf; the presumption prevails and the accused should be declared acquitted. 16

Evidence II.
I. No moral certainty on the corpus delicti

A successful prosecution for the sale of illegal drugs requires more than the perfunctory presentation of evidence
establishing each element of the crime, namely: the identities of the buyer and seller, the transaction or sale of the
illegal drug and the existence of the corpus delicti.

In securing or sustaining a conviction under RA No. 9165, the intrinsic worth of these pieces of evidence, especially
the identity and integrity of the corpus delicti, must definitely be shown to have been preserved. This requirement
necessarily arises from the illegal drug's unique characteristic that renders it indistinct, not readily identifiable, and
easily open to tampering, alteration or substitution either by accident or otherwise.

Thus, to remove any doubt or uncertainty on the identity and integrity of the seized drug, evidence must definitely
show that the illegal drug presented in court is the same illegal drug actually recovered from the accused-appellant;
otherwise, the prosecution for possession or for drug pushing under RA No. 9165 fails. 17

a. The ‘Marking’ Requirement vis-à-vis the Chain of Custody Rule

Dangerous Drugs Board Regulation No. 1, Series of 2002 (which implements R.A. No. 9165) defines chain of
custody as the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant
sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to the
receipt in the forensic laboratory, to safekeeping and the presentation in court for identification and eventual
destruction.

The Court explained the importance of establishing the chain of custody over the seized drug in the recent case of
People of the Philippines v. Joselito Beran y Zapanta @ "Jose,"  as follows:
18

The purpose of the requirement of proof of the chain of custody is to ensure that the integrity and evidentiary value
of the seized drug are preserved, as thus dispel unnecessary doubts as to the identity of the evidence. To be
admissible, the prosecution must establish by records or testimony the continuous whereabouts of the exhibit, from
the time it came into the possession of the police officers, until it was tested in the laboratory to determine its
composition, and all the way to the time it was offered in evidence.

Thus, crucial in proving chain of custody is the marking of the seized drugs or other related items immediately after
they are seized from the accused. "Marking" means the placing by the apprehending officer or the poseur-buyer of
his/her initials and signature on the items seized. Long before Congress passed R.A. No. 9165, this Court has
consistently held that failure of the authorities to immediately mark the seized drugs casts reasonable doubt on the
authenticity of the corpus delicti.

Marking after seizure is the starting point in the custodial link; hence, it is vital that the seized contraband be
immediately marked because succeeding handlers of the specimens will use the markings as reference. The
marking of the evidence serves to separate the marked evidence from the corpus of all other similar or related
evidence from the time they are seized from the accused until they are disposed of at the end of the criminal
proceedings, thus preventing switching, "planting," or contamination of evidence. 19

The records in the present case do not show that the police marked the seized plastic sachet immediately upon
confiscation, or at the police station. Nowhere in the court testimony of PO2 Centeno, or in the stipulated
testimonies of PO3 Chantengco and PO1 Fortea, did they indicate that the seized item had ever been marked.
Notably, the members of the buy-bust team did not also mention that they marked the seized plastic sachet in their
Joint Affidavit of Arrest.

How the apprehending team could have omitted such a basic and vital procedure in the initial handling of the seized
drugs truly baffles and alarms us. We point out that succeeding handlers of the specimen would use the markings
as reference. If at the first or the earliest reasonably available opportunity, the apprehending team did not mark the
seized items, then there was nothing to identify it later on as it passed from hand to hand. Due to the procedural
lapse in the first link of the chain of custody, serious uncertainty hangs over the identification of the seized shabu
that the prosecution introduced into evidence.

Evidence II.
We are not unaware that the seized plastic sachet already bore the markings "BC 02-01-04" when it was examined
by Forensic Chemist Jabonillo. In the absence, however, of specifics on how, when and where this marking was
done and who witnessed the marking procedure, we cannot accept this marking as compliance with the required
chain of custody requirement. There was also no stipulation between the parties regarding the circumstances
surrounding this marking. We note in this regard that it is not enough that the seized drug be marked; the marking
must likewise be made in the presence of the apprehended violator. As earlier stated, the police did not at any time
ever hint that they marked the seized drug.

In Lito Lopez v. People of the Philippines  we acquitted the accused for failure of the police to mark the seized
20

drugs. The Court had a similar ruling in People of the Philippines v. Merlita Palomares y Costuna;  the Court
21

acquitted the accused for the prosecution’s failure to clearly establish the identity of the person who marked the
seized drugs; the place where marking was made; and whether the marking had been made in the accused’s
presence. These recent cases show that the Court will not hesitate to free an accused if irregularities attended the
first stage of the chain of custody over the seized drugs.

b. The requirements of paragraph 1, Section 21 of Article II of R.A. No. 9165, and its Implementing Rules and
Regulations

The required procedure on the seizure and custody of drugs is embodied in Section 21, paragraph 1, Article II of
R.A. No. 9165, which states:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the
media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies
of the inventory and be given a copy thereof. [Emphasis ours]

This is implemented by Section 21(a), Article II of the Implementing Rules and Regulations of R.A. No. 9165, which
reads:

(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the
media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies
of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be
conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of
the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-
compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of
the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such
seizures of and custody over said items; [Emphasis ours]

In the present case, no evidence was produced showing that the members of the buy-bust team had extended
reasonable efforts to comply with these requirements in handling the evidence. The lapse is patent from the
following exchanges during trial:

FISCAL ROGELIO ANTERO:

Q: x x x After the body frisk and the recovery of the buy-bust money from the person of the accused, what happened
next?

PO2 CENTENO:

A: We went to the station and turned over to the desk officer for proper disposition.

xxxx

Evidence II.
Q: How about the pieces of evidence you recovered?

A: I also turned it over to the desk officer, sir.

Q: Who was the desk officer?

A: SPO2 Salinel, sir.

Q: What did the desk officer do with the evidence?

A: He designated the investigator. Then, the investigator made the proper request for Crime Lab.

Q: Who was the investigator?

A: PO3 Chantengco.

xxxx

Q: Why do you know that the duty desk officer turned over the pieces of evidence to Chantengco?

A: I was there, sir.

Q: What happened when this pieces of evidence was turned over to the investigator?

A: The investigator made the request for Crime Lab.

Q: After the request for laboratory examination of specimen was made. [W]hat happened next?

A: We immediately brought [sic] to the Crime Lab. for examination. 22

These exchanges further show that the apprehending team never conducted an inventory nor did they photograph
the confiscated item in the presence of the appellant or his counsel, a representative from the media and the
Department of Justice, or an elective official either at the place of seizure, or at the police station. The Joint Affidavit
of the police did not also mention any inventory conducted of any photograph taken. Corollarily, there was no
certificate of inventory or inventory receipt and photographs of the seized drugs attached to the records.

In People v. Gonzales,  the police failed to conduct an inventory and to photograph the seized plastic sachet. In
23

acquitting the accused based on reasonable doubt, we explained that [t]he omission of the inventory and
photographing exposed another weakness of the evidence of guilt, considering that the inventory and photographing
— to be made in the presence of the accused or his representative, or within the presence of any representative
from the media, Department of Justice or any elected official, who must sign the inventory, or be given a copy of the
inventory — were really significant stages of the procedures outlined by the law and its IRR. 24

We recognize that strict compliance with the legal prescriptions of R.A. No. 9165 may not always be possible.
Section 21(a), Article II of the IRR, in fact, offers some flexibility in complying with the express requirements under
paragraph 1, Section 21, Article II of R.A. No. 9165, i.e., "non-compliance with these requirements under justifiable
grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the
apprehending officer/team, shall not render void and invalid such seizures of and custody over said items[.]" This
saving clause, however, applies only where the prosecution recognized the procedural lapses and thereafter cited
justifiable grounds to explain them. In all cases, the prosecution must have established that the integrity and
evidentiary value of the evidence seized had been preserved. 25

These conditions were not met in the present case as the prosecution did not even attempt to offer any justification
for the failure of the apprehending team to follow the prescribed procedures in the handling of the seized drug. We

Evidence II.
stress that the justifiable ground for non-compliance must be adequately explained; the Court cannot presume what
these grounds are or that they even exist.

II. No Presumption of Regularity

in the Performance of Official Duties

The CA relied on the presumption that regular duties have been regularly performed in sustaining the appellant’s
conviction. This presumption of regularity, however, is disputable; any taint of irregularity taints the performance
undertaken and negates the presumption.  It cannot by itself overcome the presumption of innocence nor constitute
26

proof beyond reasonable doubt. 27

In the present case, the lack of conclusive identification of the illegal drugs allegedly seized from petitioner due to
the failure of the police to mark, inventory and photograph the seized plastic sachet effectively negated the
presumption of regularity. The procedural lapses by the police put in doubt the identity and evidentiary value of the
seized plastic sachet. Our ruling in People v. Cantalejo  on this point is particularly instructive:
28

As a general rule, the testimony of the police officers who apprehended the accused is usually accorded full faith
and credit because of the presumption that they have performed their duties regularly. However, when the
performance of their duties is tainted with irregularities, such presumption is effectively destroyed.

While the law enforcers enjoy the presumption of regularity in the performance of their duties, this presumption
cannot prevail over the constitutional right of the accused to be presumed innocent and it cannot by itself constitute
proof of guilt beyond reasonable doubt. The presumption of regularity is merely just that - a mere presumption
disputable by contrary proof and which when challenged by evidence cannot be regarded as binding truth. 29

In fine, we hold that the totality of the presented evidence do not support a finding of guilt with the certainty that
criminal cases require. The procedural lapses committed by the apprehending team show glaring gaps in the chain
of custody, creating a reasonable doubt on whether the shabu seized from the appellant was the same shabu that
were brought to the crime laboratory for chemical analysis, and eventually offered in court as evidence. In the
absence of concrete evidence on the illegal drug bought and sold, the body of the crime - the corpus delicti - has not
been adequately proven. In effect, the prosecution failed to fully prove the elements of the crime charged. 1âwphi1

The Court is one with all the agencies concerned in pursuing a serious and unrelenting campaign against illicit
drugs. But we remind our law enforcers to be ever mindful of the procedures required in the seizure, handling and
safekeeping of confiscated drugs. Observance of these procedures is necessary to dispel any doubt of the outcome
of arrests and buy-bust operations, and to avoid wasting the efforts and the resources in the apprehension and
prosecution of violators of our drug laws.30

WHEREFORE, in light of all these premises, we REVERSE and SET ASIDE the February 8, 2008 decision of the
Court of Appeals in CA-G.R. CR. H.C. No. 02726. Appellant Sonny Sabdula y Amanda is hereby ACQUITTED for
failure of the prosecution to prove his guilt beyond reasonable doubt. He is ordered immediately RELEASED from
detention unless he is otherwise legally confined for another cause.

Evidence II.
9.) G.R. No. 205202               June 9, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
NENITA GAMATA y VALDEZ, Accused-Appellant.

RESOLUTION

REYES, J.:

This is an appeal from the Decision  dated May 11, 2012 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 04839
1

which affirmed the Decision  dated September 15, 2010 of the Regional Trial Court (RTC) of Makati City, Branch 64
2

in Criminal Case Nos. 06-1344 to 1345 finding Nenita Gamata y Valdez (accused-appellant) guilty in Criminal Case
'No. 06-1344 for violating Section 5, Article II of Republic Act (R.A.) No. 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of 2002, and sentencing her to suffer the penalty of life imprisonment and to
pay a fine of ₱500,000.00.

The Information in Criminal Case No. 06-1344 to which the accused-appellant pleaded "Not Guilty" contained the
following accusations:

That on or about the 25TH day of July 2006, in the City of Makati, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, not being lawfully authorized by law, did then and there willfully,
unlawfully and feloniously sell, give away, distribute and deliver to another, zero point zero three [0.03] gram
of Methylamphetamine Hydrochloride which is a dangerous drug, in exchange of Php.500.00 pesos.  [sic] 3

Meanwhile, the information in Criminal Case No. 06-1345 indicted the accused-appellant for illegal possession of
0.14 gram of methylamphetamine hydrochloride, an act punishable under Section 11, Article II of R.A. No.
9165.  Considering, however, that the accused-appellant was acquitted by the RTC of such criminal charge, the
4

present discussion shall concern only Criminal Case No. 06-1344.

During trial, the prosecution presented the testimonies of Police Officer 2 Renie Aseboque (PO2 Aseboque), Noel
Pulido (Pulido) and Juan Siborboro, Jr., both operatives of the Makati Anti-Drug Abuse Council (MADAC), and
Police Inspector May Andrea Bonifacio (P/Insp. Bonifacio), Forensic Chemist of the Philippine National Police (PNP)
Crime Laboratory. Their declarations depicted the following events:

On July 25, 2006, an information was received by Senior Inspector Joefel Felongco Siason (S/Insp. Siason) of the
Station Anti-Illegal Drugs Special Operations Task Force (SAIDSOTF), Makati City, from a confidential asset of the
MADAC that rampant illegal drug peddling in Laperal Compound, Barangay Guadalupe Viejo, Makati City was
being carried out by the accused-appellant, Jun Gamata (Jun), Toto Madera and Totoy Pajayjay. Apparently, their
names are also included in the watch list of the MADAC.

Forthwith, a team composed of SAIDSOTF police officers and MADAC operatives was formed to conduct a buy-
bust operation against the said subjects. During the briefing,PO2 Aseboque was designated as the poseur-buyer
while the rest of the team members were assigned to be his back-up. The operation was coordinated with the
Philippine Drug Enforcement Agency (PDEA) under Pre-Coordination Sheet Control Number MMRO-072506-0212
duly acknowledged to have been received by PO1 Nemencio V. Domingo of the PDEA.  One piece of a 500.00 bill
5

was also marked for use in the operation. 6

At around 4:30 p.m., the team, together with the confidential informant, proceeded to the subject area.  The team
1âwphi1

members positioned themselves in spots where they can monitor the possible transaction. Meanwhile, PO2
Aseboque and the informant walked towards Laperal Compound and thereupon noticed a woman clad in white t-
shirt and maong pants. The informant identified her to PO2 Aseboque as the accused-appellant.

The two of them then approached the accused-appellant whom PO2 Aseboque queried as to the whereabouts of
Jun. In response, the accused-appellant said that Jun was not around and that "kami nandito lang, bakit kukuha ba
Evidence II.
kayo?" PO2 Aseboque comprehended her response as the street language used in the dealing ofdangerous drugs
and that she actually meant that she was selling shabu if they wanted to buy one. PO2 Aseboque repeated his
query to which the accused-appellant replied, "Wag niyo ng hintayin si Jun, ako meron." PO2 Aseboque took her
response as a confirmation that she was indeed selling shabu. He then asked her if she had 500.00 worth of shabu.
The accused-appellant took out one plastic sachet from her right pocket and handed it over to PO2 Aseboque who
in turn examined its contents and thereafter handed the buy-bust money to the accused-appellant. As she was
placing the money inside her pocket, PO2 Aseboque made the pre-arranged signal to his buy-bust team mates by
lighting a cigarette.

Upon seeing MADAC operative Pulido rushing towards the scene, PO2 Aseboque held the accused-appellant and
introduced himself as a police officer. He directed her to empty the contents of her pockets but she refused. This
prompted PO2 Aseboque to order Pulido to dig into the accused-appellant’s pockets. Pulido complied and
discovered three more pieces of transparent plastic sachet containing white crystalline substance suspected as
shabu along with the buy-bust money and 120.00 of the accused-appellant’s personal money.

The accused-appellant was then informed of her constitutional rights while the sachet she sold to PO2 Aseboque
was immediately marked by the latter with his initials "REA" while those recovered by Pulido were marked with
"REA-1", "REA-2", and "REA-3". At the crime scene, PO2 Aseboque also prepared an Acknowledgment
Receipt  which he and the arresting team signed.
7

The accused-appellant and the seized evidence were subsequently brought to the Makati SAIDSOTF office where
they were turned over to PO2 Rafael Castillo (PO2 Castillo) for investigation, interrogation and proper disposition. At
the same office, PO2 Aseboque executed an Affidavit of Arrest  and a Supplemental Affidavit.
8

Along with a Request for Laboratory Examination  prepared by S/Insp. Siason, Pulido brought the seized specimens
9

to the PNP Crime Laboratory. The same were received by a certain Relos, officer of the day, in the presence of
Crime Laboratory Forensic Chemist P/Insp. Bonifacio.

P/Insp. Bonifacio conducted the necessary tests on the subject specimens and the results thereof yielded positive
results for methylamphetamine hydrochloride or shabu. Thereafter, she tagged each item with tape markings and
reduced her findings in Physical Science Report Number D-506-06S.  She then turned over the specimens to the
10

evidence custodian from whom she later on retrieved them upon the instructions of the prosecutor after the filing of
criminal informations against the accused-appellant. 11

The defense refuted all of the above occurrences and claimed, through the testimony of the accused-appellant, that
at around 3:00 p.m. of July 25, 2006, she had just finished taking a bath when she heard someone banging the door
of her house in Laperal Compound. When she opened the door, five armed men in civilian clothing greeted her and
asked for Jun, her brother-in-law. When she answered them that she did not know Jun’s whereabouts, they began
searching her house. Since Jun actually resides at about five houses away from hers, the armed men were unable
to locate him at the accused-appellant’s house. They then handcuffed the accused-appellant and loaded her in a
van where she saw her neighbor, Alaw, and a certain Jonalyn Silvano. The three of them were brought to the
SAIDSOTF office where the accused-appellant was shown items that will be used as evidence against her. 12

In a Decision  dated September 15, 2010,the RTC sustained the prosecution’s version and held that the pieces of
13

evidence submitted established the presence of the elements of illegal sale of dangerous drugs, viz: (1) the identity
of the buyer and the seller, object and consideration; and (2) the delivery of the thing sold and the payment therefor.
Both elements were found present in the poseur-buyer’s positive identification of the accused-appellant as the
person from whom he was able to purchase ₱500.00 worth of shabu.

The accused-appellant’s denial and alibi were rejected for being unsubstantiated. Her imputations of frame-up to the
police officers were likewise found uncorroborated by convincing proof and thus overthrown by the presumption of
regularity attached to the performance of the police officers’ official duties.

The RTC disposed thus:

WHEREFORE, in view of the foregoing, [judgment] is hereby rendered as follows:

Evidence II.
 1. Finding the accused NENITA GAMATA y VALDEZ, GUILTY in Criminal Case No. 06-1344 of the charge
for violation of Section 5, Article II of RA 9165 and sentencing her to life imprisonment and to pay a fine of
FIVE HUNDRED THOUSAND PESOS (Php500,000.00);

2. ACQUITTING the accused NENITA GAMATA y VALDEZ in Criminal Case No. 06-1345 of the charge for
violation of Section 11, Article II of RA 9165.

SO ORDERED.  (Emphasis ours)

14

On appeal, the accused-appellant argued for her acquittal on the ground that the identity of the drugs seized from
her was not proved beyond reasonable doubt because the prosecution failed to supply all the links in the chain of
their custody. She further pointed out the inconsistent testimonial and documentary evidence on the markings
placed on the seized items. The accused-appellant also questioned the failure of the police officers to comply with
the procedure laid down in Section 21, Article II of R.A. No. 9165 particularly, the preparation of the inventory and
taking of photographs of the seized items. 15

In a Decision  dated May 11, 2012, the CA denied the appeal and concurred with the findings and conclusions of
16

the RTC that the identities of the buyer and seller as well as the consummation of the sale of illegal drugs was
proved beyond reasonable doubt by the prosecution through the straightforward testimony of the poseur-buyer
himself, PO2 Aseboque, as believably corroborated by two other members of the buy-bust team and by extensive
documentary evidence. The CA rejected the accused-appellant’s arguments and held that the same were disproved
by the evidence on record, thus:

Accused-appellant contends that while[PO2] Aseboque maintains that he had custody of the items seized from her,
Pulido testified that he was the one who held the items recovered from accused-appellant. A careful perusal of the
transcript of stenographic notes, however, reveals that there was actually no inconsistency as what Pulido testified
to as the items that was with him were the ones he recovered from the pocket of the accused-appellant and not the
one that was subject of the sale. x x x

xxxx

x x x [W]hen Pulido testified as to the seized items, he was referring to those sachets that he was able to fish out of
the pocket of accused-appellant and he held on to the same as [PO2] Aseboque had his hands full trying to restrain
accused-appellant. x x x Pulido corroborated [PO2] Aseboque’s statement that it was the latter who prepared the
inventory of the items seized from the accused-appellant. x x x

xxxx

It is noted that the four sachets were already marked with the initial of the apprehending officer at the scene of the
crime. The act was attested to by the rest of the arresting team and the markings were reflected in the
acknowledgement report. Even if [PO2] Castillo failed to note in his spot report that the items were marked with the
initial of [PO2] Aseboque, it could not be discounted that the items were the ones seized from the person of
accused-appellant because if the same were different, the items that were turned over to the forensic chemist
P/Insp. Bonifacio would not have borne the initial of [PO2] Aseboque considering that from the hands of [PO2]
Castillo, the seized items were personally handed by him to Relos, who in turn gave the same to P/Insp. Bonifacio
who was, likewise, present when [PO2] Castillo handed the items to Relos. Moreover, [P/Insp.] Bonifacio explained
that there is actually no difference between the marking "REA" and "R.E.A." x x x

xxxx

In addition, an examination of the letter request (Request for Laboratory Examination) shows that while the
signatory mentioned that the item subject of the sale was marked as "REA", when he attached the sachet to the
request, the signatory made a handwritten reference to the attached specimen as "R.E.A." To Our mind, the
presence or absence of the punctuation marks is of no moment as the request was precisely clear that the items to
be examined were the ones attached to the request itself.  (Citation omitted)
17

Evidence II.
The CA also dismissed the accused-appellant’s contentions that the statutory procedure for the inventory and
photograph of the seized items was not observed. The CA held that the absence of a media representative or an
elected public official during the inventory was not material to overturn a conviction as it did not pertain to the
elements of the crime charged. The CA further stressed that non-compliance with the inventory and photograph
requirements will not render void and invalid the seizure and custody over the items.

Accordingly, the decision disposed as follows:

WHEREFORE, premises considered, the instant appeal is DENIED and the appealed Decision dated September
15, 2010 rendered by the Regional Trial Court, Branch 64, Makati City, in Criminal Case No. 06-1344 for Violation of
Article II, Section 5 of Republic Act No. 9165 is hereby AFFIRMED.

SO ORDERED. 18

The accused-appellant is now before the Court pleading for her acquittal based on the same arguments raised in
her Appellant’s Brief before the CA.19

Ruling of the Court

The Court denies the appeal.

The arguments proffered in support of the accused-appellant’s plea for acquittal has already been exhaustively
traversed by the CA and based on evidence on record, the Court finds no reversible error imputable to the appellate
court and the trial court in finding her guilty beyond reasonable doubt of illegal sale of shabu defined and penalized
under Section 5, Article II of R.A. No. 9165.

Illegal sale of prohibited drugs is consummated at the moment the buyer receives the drug from the seller. In a buy-
bust operation, the crime is consummated when the police officer makes an offer to buy that is accepted by the
accused, and there is an ensuing exchange between them involving the delivery of the dangerous drugs to the
police officer.  In order to successfully prosecute the offense, proof beyond reasonable doubt of two elements must
20

be satisfied by the prosecution, viz: (a) the identity of the buyer and the seller, the identity of the object and the
consideration of the sale; and (b) the delivery of the thing sold and of the payment for the thing.

As correctly ruled by the courts a quo, the presence of both requisites was clearly established by the testimony of
the poseur-buyer himself, PO2 Aseboque, who positively testified that the illegal sale took place when he gave the
₱500.00 marked money to the accused-appellant in exchange for the shabu, thus:

WITNESS [PO2 Aseboque]: After I asked her if where is Jun, she told me that Jun is not around, sir.

PROS. PAGGAO: What did you do next?

WITNESS: She said: Kami nandito lang, bakit kukuha ba kayo?

PROS. PAGGAO: What did you understand by that?

WITNESS: It is a street language that they are using with dangerous drugs, so it is understood that we are going to
buy shabu, sir.

PROS. PAGGAO: What did you reply, if any?

WITNESS: I asked her, "Si Jun wala ba?"

PROS. PAGGAO: Any answer from the woman?

WITNESS: She said, "Wag n’yo ng hintayin si Jun, ako meron."

Evidence II.
PROS. PAGGAO: What did you do?

WITNESS: I asked her if she has worth Five Hundred Pesos, sir.

PROS. PAGGAO: What was her reply, if any?

WITNESS: She told me that she has worth Five Hundred Pesos, sir.

PROS. PAGGAO: And, after that, what did you do, if any?

WITNESS: She took one plastic sachet from her right pocket, sir.

PROS. PAGGAO: What did she do with that?

WITNESS: She handed that to me, sir.

PROS. PAGGAO: And, upon receiving the sachet of shabu, what did you do?

WITNESS: I checked it first if it has contents, sir.

PROS. PAGGAO: After checking, what did you do?

WITNESS: I then handed the buy bust money worth Five Hundred Pesos, sir.

PROS. PAGGAO: And, after she received the Five Hundred Pesos, what happened next?

WITNESS: While she is putting the buy bust money inside her pocket, I made the pre-arranged signal by lighting a
cigarette, sir.

xxxx

PROS. PAGGAO: Now, you have been mentioning of Nenita against [sic] whom you were able to buy shabu and
the one you arrested, is she in the courtroom?

WITNESS: Yes, sir.

PROS. PAGGAO: Will you kindly step down and tap her shoulder? (The witness tapped the right shoulder of a
female person and that woman upon being asked of her name answered: Nenita Gamata) 21

The CA was also correct in ruling that the failure of the arresting officers to strictly comply with paragraph 1, Section
21, Article II of R.A. No. 9165  mandating the procedure for the inventory and photograph of seized illegal drugs did
22

not affect the evidentiary weight of the drugs seized from the accused-appellant. As held in People v. Cardenas: 23

[N]on-compliance with Section 21 of said law, particularly the making of the inventory and the photographing of the
drugs confiscated and/or seized, will not render the drugs inadmissible in evidence. Under Section 3 of Rule 128 of
the Rules of Court, evidence is admissible when it is relevant to the issue and is not excluded by the law or these
rules. For evidence to be inadmissible, there should be a law or rule which forbids its reception. If there is no such
law or rule, the evidence must be admitted subject only to the evidentiary weight that will accorded it by the courts. x
xx

We do not find any provision or statement in said law or in any rule that will bring about the non-admissibility of the
confiscated and/or seized drugs due to non-compliance with Section 21 of Republic Act No. 9165. The issue
therefore, if there is non-compliance with said section, is not of admissibility—but of weight—evidentiary merit or
probative value—to be given the evidence. The weight to be given by the courts on said evidence depends on the
circumstances obtaining in each case.  (Emphasis supplied)
24

Evidence II.
This is especially true when the chain of custody of the corpus delicti or the illegal drug itself was shown to be
unbroken,  as in this case. Testimonial and documentary evidence show that the poseur-buyer, PO2 Aseboque,
25

marked the seized illegal drug at the crime scene with his initials "REA". At the same place, he also prepared an
Acknowledgment Receipt of the items seized from the accused-appellant whose refusal to sign was duly noted in
the same document.  The seized item was then immediately turned over by PO2 Aseboque to SAIDSOTF
26

investigating officer PO2 Castillo.  On the same day, PO2 Castillo brought the seized illegal drug, together with the
27

Request for Laboratory Examination,  to the PNP Crime Laboratory where it was received by a certain Relos in the
28

presence of Forensic Chemist, P/Insp. Bonifacio.  In her Physical Science Report No. D-506-06S,  the contents of
29 30

the seized item marked REA weighed 0.03 gram tested positive for methylamphetamine hydrochloride or
shabu. After her examination, P/Insp. Bonifacio turned over the seized item to the evidence custodian from whom
she later retrieved them upon the instructions of and for submission to the prosecutor. On the witness stand, P/Insp.
Bonifacio categorically identified the specimen presented as evidence as the very same specimen which she tested
based on the marking she placed thereon: "D-506-06S". 31

Indeed, the following links in the chain of custody of the seized illegal drug were duly accounted for, to wit: (1) the
seizure and marking of the illegal drug recovered from the accused by the apprehending officer; (2) the turnover of
the illegal drug seized by the apprehending officer to the investigating officer; (3) the turnover by the investigating
officer of the illegal drug to the forensic chemist for laboratory examination; and (4) the turnover and submission of
the marked illegal drug seized by the forensic chemist to the court. 32

The alleged discrepancy between the testimony of P02 Aseboque that he placed the marking REA on the seized
item, the forensic chemist's report stating that the specimen was marked "R.E.A." and the absence of any such ,
description in the Spot Report  of P02 Castillo did not cause a gap in the chain of custody. As exhaustively
33

discussed by the CA, the identity and integrity of the seized item was preserved because, despite lack of accurate
description in the Spot Report, P/Insp. Bonifacio testified that the item she received for laboratory examination bore
the markings "REA" placed by P02 Aseboque at the crime scene. It is for this same reason that the punctuation
marks after the letters R, E and A in her Physical Science Report No. D-506-068 did not alter the identity and
integrity of the actual specimen marked as "REA." The specimen marked at the crime scene, turned over to P02
Castillo and then received by P/Insp. Bonifacio were one and the same.

Further, the failure of the evidence custodian to take the witness stand did not weaken the case for the prosecution
because P/Insp. Bonifacio was able to positively identify that the evidence submitted in court was the very same
specimen which she subjected to laboratory examination and its contents tested positive for shabu. 34

In sum, the Court finds no reversible error in the conviction meted the accused-appellant.  The penalty of life
1awp++i1

imprisonment and ₱500,000.00 fine imposed upon her were in accord with Section 5, Article II of R.A. No. 9165. 35

WHEREFORE, premises considered, the appeal is DENIED and the Decision dated May 11, 2012 of the Court of
Appeals in CA-G.R. CR-HC No. 04839 is hereby AFFIRMED.

Evidence II.
10.) G.R. No. 207664               June 25, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
GIL SALVIDAR y GARLAN, Accused-Appellant.

RESOLUTION

REYES, J.:

For review  is the Decision  rendered by the Court of Appeals (CA) on October 31, 2012 in CA-G.R. CR-HC No.
1 2

04989 affirming, albeit with modification as to the wordings of one of the penalties imposed, the Decision  dated April
3

11, 2011 by the Regional Trial Court (RTC) of Caloocan City, Branch 120 in Criminal Case Nos. C-78532-33,
convicting Gil Salvidar y Garlan (accused-appellant) for violation of Sections 5  and 11,  Article II of Republic Act
4 5

(R.A.) No. 9165. 6

Factual Antecedents

The informations filed before the RTC against the accused-appellant partially read as follows:

CRIM CASE NO. 78532

Violation of Section 5, Art. II, RA 9165

"That on or about the 12th day of November 2007 in Caloocan City, Metro Manila, and within the jurisdiction of this
Honorable Court, the above-named accused, without authority of law, did then and there, willfully, unlawfully
and feloniously sell and deliver to PO3 RAMON GALVEZ, who posed, as buyer, ten (10) heat-sealed transparent
plastic sachets each containing dried MARIJUANA fruiting tops weighing 0.37 gram, 0.35 gram, 0.40 gram, 0.28
gram, 0.35 gram, 0.36 gram, 0.32 gram, 0.36 gram, 0.67 gram & 0.57 gram, a dangerous drug, without the
corresponding license or prescription therefore, knowing the same to be such.

Contrary to law."

CRIM CASE NO. 78533

Violation of Section 11, Art. II, RA 9165

"That on or about the 12th day of November 2007, in Caloocan City[,] Metro Manila and within the jurisdiction of this
Honorable Court, the above-named accused, without being authorized by law, did then and there, willfully,
unlawfully and feloniously have in his possession, custody and control one (1) transparent plastic box containing
dried MARIJUANA fruiting tops weighing 29.01 grams, when subjected for laboratory examination gave positive
result to the tests of Marijuana, a dangerous drug.

Contrary to law." 7

During arraignment, the accused-appellant entered a "not guilty" plea. Pre-trial then ensued. Since the two cases
were filed against the same accused and revolve around the same facts and evidence, they were consolidated and
tried jointly.

Version of the Prosecution

The prosecution offered the following as witnesses: (a) Police Officer 3 Ramon Galvez (PO3 Galvez), the poseur-
buyer in the buy-bust operation conducted against the accused-appellant; (b) PO2 Randulfo Hipolito (PO2 Hipolito),
likewise a member of the buy-bust operation; (c) Senior Police Officer 1 Fernando Moran (SPO1 Moran), then the
investigator-on-duty to whom the accused-appellant and the seized evidence were turned over at the police station;
and (d) Police Chief Inspector Albert S. Arturo (PCI Arturo), Forensic Chemical Officer of the Northern Police District

Evidence II.
Crime Laboratory Office, Caloocan City, who conducted the examination on the evidence seized from the accused-
appellant.

PO3 Galvez testified that on November 12, 2007, he was ordered by their chief to conduct a surveillance operation
to verify reported illegal drug selling activities in Don Antonio Street, Barangay19, Caloocan City. A confidential
informant told the police that a certain "Keempee," who would later on be identified as the herein accused-appellant,
was notoriously selling marijuanain the area. A buy-bust team was thereafter formed. PO3 Galvez was designated
as the poseur-buyer, PO3 Fernando Modina (PO3 Modina) as team leader, and PO2 Hipolito as back-up member. A
hundred peso bill, marked with PO3 Galvez’s initials, was prepared. To send a signal to the other members of the
buy-bust team of the consummation of the transaction with the accused-appellant, PO3 Galvez was instructed to
throw a lit cigarette.
8

The buy-bust team proceeded to the target area. PO3 Galvez and the informant saw the accused-appellant near the
front door of his house, stripping marijuana leaves. The rest of the team remained in the perimeter. PO3 Galvez
approached the house, uttered "Keempee, pakuha nga ng damo, halagang isang daan," and gave the latter the
100.00 marked money. The accused-appellant then held ten (10) pieces of plastic, which appeared to contain
marijuana and white pieces of paper, placed them inside a Marlboro pack, and handed them all to PO3
Galvez. When PO3 Galvez threw a lit cigarette, PO2 Hipolito joined him in arresting the accused-appellant, who was
apprised of his constitutional rights. After a further search, one transparent plastic box containing what likewise
appeared to be dried marijuana leaves, one plastic sachet with white pieces of paper, and a few empty transparent
plastic sachets were also seized from the accused-appellant. 9

PO3 Galvez marked the ten (10) plastic sachets with "GSG/RG 11/12/07" representing his and the accused-
appellant’s initials and the date the imprint was made. The rest of the items seized were marked with "GSG/RH," the
last two letters representing PO2 Hipolito’s initials. The accused-appellant and the seized items were thereafter
taken to the police station and turned over to SPO1 Moran, who prepared the letter request for laboratory
examination. The crime laboratory tested the seized items and found the same to be marijuana. 10

PO2 Hipolito corroborated PO3 Galvez’s testimony about the conduct of a buy-bust operation and the turnover of
the accused-appellant and the seized items to the investigator at the police station. Additionally, PO2 Hipolito stated
that he held the accused-appellant whilePO3 Galvez was marking some of the seized items. The accused-appellant
was turned over to PO3 Modina upon the latter’s arrival, while PO2 Hipolito marked the rest of the seized items. 11

The prosecution and the defense entered into stipulations and admissions of facts anent:

(a) SPO1 Moran’s (1) having caused the buy-bust money to be photographed; (2) receipt, while at the police
station, of the person of the accused-appellant and the items allegedly seized from him; (3) preparation of
the evidence acknowledgment receipt, affidavit of arrest of the police officers, and referral slip to the inquest
prosecutor; (4) preparation of a letter request for laboratory examination of the seized items; and (5) receipt
of the result of the laboratory examination, which yielded positive for marijuana;  and
12

(b) PCI Arturo’s (1) receipt of a letter request for laboratory examination of ten (10) heat-sealed transparent
plastic sachets containing white pieces of paper and dried marijuana fruiting/flowering tops; (2) conduct of a
laboratory examination Science Report No. D-382-07 stating therein the result of the laboratory
examination. 13

The testimonies of SPO1 Moran and PCI Arturo were thus dispensed with.

Version of the Defense

The defense, on its part, offered the testimonies of the accused-appellant and his son, Guillar Salvidar (Guillar).

The accused-appellant claimed that contrary to the prosecution’s statements, he was instead arrested at around
4:00 p.m. of November 11, 2007. While playing a video game with Guillar, he stood up to get snacks for the latter.
Several men arrived, brought him to their vehicle, and handcuffed him. He was subsequently asked to reveal the
identities of big time drug pushers in the area. The accused-appellant was unable to comply with the order and was

Evidence II.
brought to the Sangandaan precinct. The men, who seized the accused-appellant, turned out to be police officers.
PO3 Galvez and SPO1 Moran belonged to the group. They inquired from him about his and his wife’s employment.
The men then asked him to settle the case for 30,000.00. He told them that he did not have money. When his wife
arrived, she argued with the police officers. The officers got angry and informed him that he would be indicted. 14

Guillar corroborated the accused-appellant’s testimony about the date of the arrest and their whereabouts at that
time. He added that three policemen arrived. They dragged his father out of the video game shop and the latter, in
turn, resisted. Guillar cried while he chased his father who was taken away, but the former’s attempt was futile.
Guillar went home to inform his mother about the incident. 15

Ruling of the RTC

On April 11, 2011, the RTC rendered a decision,  the dispositive portion of which reads:
16

Premises considered, this court finds and so holds the accused Gil Salvidar y Garlan GUILTY beyond reasonable
doubt for violation of Sections 5 and 11, Article II of [R.A. No. 9165], x x x and imposes upon him the following:

(1) In Crim. Case No. C-78532, the penalty of Life Imprisonment and a fine of Five Hundred Thousand
Pesos ([P]500,000.00); and

(2) In Crim. Case No. C-78533, the penalty of Imprisonment of twelve (12) years and one (1) day to
Fourteen (14) years and a fine of Three Hundred Thousand Pesos ([P]300,000.00).

The drugs subject matter of these cases consisting of ten (10) heat-sealed transparent plastic sachets each
containing dried MARIJUANA fruiting tops weighing 0.37 gram, 0.35 gram, 0.40 gram, 0.28 gram, 0.35 gram, 0.36
gram, 0.32 gram, 0.36 gram, 0.67 gram & 0.57 gram[,] as well as the one (1) transparent plastic box containing
dried MARIJUANA fruiting tops weighing 29.01 grams[,] are hereby confiscated and forfeited in favor of the
government to be dealt with in accordance with law.

SO ORDERED. 17

The RTC found the accused-appellant’s defense of denial and claim of attempted police extortion as bare, hence,
unmeritorious. The trial court declared that the testimonies of the members of the buy-bust team deserve full faith
and credit, unless it can be shown that they did not properly perform their duties, or that they were inspired by ill
motives. The accused-appellant, in this case, did not personally know the policemen and had no previous
altercation with any of them, which could have otherwise prompted the filing of fabricated charges against him.
Besides, the police officers could not have been oblivious of the fact that Section 29 of R.A. No. 9165 imposes the
penalty of death upon persons found guilty of planting dangerous drugs as evidence. 18

Citing People v. Cueno  and People v. Rigodon,  the RTC emphasized that only two basic elements must be
19 20

present for the charge of illegal sale of drugs to prosper, namely: (a) the determination of the identities of the buyer
and the seller, the object and the consideration; and (b) the delivery of the thing sold and the payment therefor. In
the case at bar, PO3 Galvez gave a detailed account of how the sale involving the accused-appellant was
consummated and his testimony was corroborated by PO2 Hipolito. The seized items were also positively identified
and the unbroken chain of custody over the same was established. 21

The Parties’ Arguments Before the CA and its Ruling

The accused-appellant challenged the above ruling before the CA claiming that the prosecution’s version of what
transpired was highly incredible. The members of the buy-bust team narrated that the accused-appellant was
packing and selling his illegal merchandise in public view. This, however, is improbable and contrary to common
experience. 22

The accused-appellant also alleged that the prosecution failed to establish an unbroken chain of custody over the
evidence. There was no explicit testimony that the specimens were marked in the presence of the accused-

Evidence II.
appellant. There was likewise no proof that the items were photographed and inventoried in the presence of a
member of the media, a Department of Justice (DOJ) representative, and an elective government official. 23

Further, not all who had custody of the specimens testified on the condition of the same upon receipt and the
precautions they took to preserve their integrity. It is perplexing as well why SPO1 Moran delivered the seized items
twice to the crime laboratory – at first to a certain PO1 Bolora at 9:40 p.m. of November 12, 2007, and subsequently
to PCI Arturo at 9:45 p.m. of the same date. While PO1 Bolora’s custody over the seized items merely lasted for a
few minutes, still, he should have testified because that short span of time was more than sufficient to destroy the
integrity of the evidence.24

Admittedly, there are exceptions to the strict implementation of the rules and procedures mandated by R.A. No.
9165. However, the prosecution should have, at the outset, recognized the procedural lapses and cite justifiable
grounds for the omissions, failing at which, a taint of doubt is cast upon the presumption that official duties have
been performed with regularity.  The Office of the Solicitor General (OSG) opposed the appeal arguing that drug
25

pushers have become more daring in selling their wares without regard for place and time. 26

The prosecution had likewise proven beyond reasonable doubt that an illegal sale of ten (10) plastic sachets
containing marijuana was consummated and the accused-appellant was the vendor. The same ten (10) plastic
sachets were seized from the accused-appellant, then later on, identified and offered as evidence during the trial.
PO3 Galvez and PO2 Hipolito had testified in detail about the conduct of the buy-bust operation, including the
markings done on the plastic sachets and transparent box seized from the accused-appellant in the place where he
was arrested, and no irregularity can be ascribed as to the concerned police officers’ performance of duties. 27

On October 31, 2012, the CA rendered the herein assailed decision, the dispositive portion of which states:

WHEREFORE, the appeal is DENIED. The Decision of the Regional Trial Court of Caloocan City, Br. 120 in 1) Crim.
Case No. C-78532 sentencing the Accused-Appellant to suffer life imprisonment and to pay a fine of Five Hundred
Thousand Pesos(Ph₱500,000.00) is AFFIRMED; and, 2) Crim. Case No. C-78533 is likewise AFFIRMED but with
MODIFICATION as to the penalty imposed in that the Accused-Appellant is sentenced to suffer an indeterminate
penalty of Twelve(12) years and One(1) day, as minimum, to Fourteen(14) years, as maximum. Costs against the
Accused-Appellant.

SO ORDERED. 28

In affirming the accused-appellant’s conviction, the CA cited the following grounds:

Settled is the rule that in the prosecution for illegal sale of drugs, it is material to prove that the transaction or sale
actually took place, coupled with the presentation in court of the evidence of corpus delicti. Said otherwise, the
essential elements of the crime of illegal sale of dangerous drugs are: 1)the accused sold and delivered a prohibited
drug to another; and 2) he knew that what he had sold and delivered was a prohibited drug.

In the instant case, PO3 Galvez’[s] testimony proves that the sale of illegal drugs actually took place. x x x [T]he
Accused-Appellant was caught in a buy-bust operation freely and knowingly selling and delivering prohibited drugs.
x x x.

x x x The prosecution has proven beyond reasonable doubt that the Accused-Appellant committed the crime of
illegal possession of dangerous drugs. It was able to prove the following elements: 1) the accused is in possession
of an object identified as a prohibited drug; 2) such possession is not authorized by law; and, 3) he freely and
consciously possessed the said drug.

The records manifestly show that, after the buy-bust team arrested the Accused-Appellant, the procedural body
search was conducted on his person. The search led to the discovery of one (1) transparent plastic box containing
an undetermined amount of suspected dried marijuana leaves(later weighed at 29.01 grams), which he freely
possessed knowing the same to be prohibited drugs. After the conduct of laboratory examinations, the same yielded
positive for marijuana. Further, he failed to present any document authorizing him by law to possess the same. x x x.

Evidence II.
The Accused-Appellant’s allegation that the prosecution failed to preserve the integrity and prove the identity of the
seized drugs, holds no water.

In all cases involving the handling and custody of dangerous drugs, the police officers are guided by Sec. 21 of the
Implementing Rules and Regulations of R.A. No. 9165. The language of the foregoing provision shows that the
failure of the police officers to strictly comply with it is not fatal and does not render the evidence adduced against
the Accused-Appellant void and inadmissible. What is important is the preservation of the integrity and the
evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of
the accused.

At bench, there was compliance with the said provision and the integrity of the drugs confiscated from the Accused-
Appellant remained intact. The chain of custody of the seized drugs, later on determined to be marijuana, was not
shown to have been broken. The records show that, after PO3 Galvez bought ten(10) pieces of plastic sachets
suspected of containing marijuana, the Accused-Appellant was bodily searched and found to be in possession of
one(1) transparent plastic box containing an undetermined amount of suspected dried marijuana leaves.
Immediately thereafter, the confiscated drugs were marked with the initials "GSG/RG 11/12/07" and "GSG/RH" and
inventoried at the place of arrest and in the presence of the Accused-Appellant. PO3 Galvez and PO2 Hipolito then
brought the Accused-Appellant to the Sangandaan police station where the same were turned over to SPO1 Moran.
Thereafter, the latter prepared the Evidence Acknowledgment Receipt and the letter-request for laboratory
examination of the seized substances for determination of the presence of any dangerous drugs. PCI Arturo
conducted the laboratory test and found them positive for marijuana, a dangerous drug.

What is more, during the trial, PO3 Galvez and PO2 Hipolito were able to positively identify all the plastic sachets
containing marijuana with markings "GSG/RG 11/12/07" and "GSG/RH" as the same ones that they confiscated
from the Accused-Appellant. x x x.

In comparison to the prosecution’s evidence, all that the Accused- Appellant could raise is the defense of denial.  x1âwphi1

x x The defense of denial in drug cases requires strong and convincing evidence because of the presumption that
the law enforcement agencies acted in the regular performance of their official duties. Bare denial of the Accused-
Appellant cannot prevail over the positive testimony of the prosecution witness. x x x.

The Accused-Appellant’s allegation that the police officers were exacting Thirty Thousand Pesos(Ph₱30,000.00)
from him has no basis. Other than his bare allegations, unsupported by concrete proof, We cannot give such
imputation a second look.  (Citations omitted)
29

The CA modified the wordings of the penalty imposed by the RTC on the accused-appellant for violation of Section
11 of R.A. No. 9165. The CA emphasized that the Indeterminate Sentence Law should be applied. Consequently,
the proper penalty should be "expressed at a range whose maximum term shall not exceed the maximum fixed by
the special law, and the minimum term shall not be less than the minimum prescribed." 30

Issues

The accused-appellant and the OSG both manifested that they no longer intended to file supplemental briefs. 31

Hence, the issues before this Court are the same ones raised before and disposed of by the CA. Essentially then,
the Court is once again asked to determine whether or not: (a) the testimonies of the members of the buy-bust team
about the accused-appellant’s illegal selling activities and possession of marijuana while the latter was at the front
door of his house and within public view are credible; and (b) the prosecution had complied with the procedural
requirements mandated by Section 21  of the Implementing Rules and Regulations (IRR) of R.A. No. 9165 as
32

regards the chain of custody over the evidence seized from the accused-appellant.

Ruling of the Court

The instant appeal lacks merit.

Evidence II.
In cases involving violations of the Dangerous Drugs Law, appellate courts tend to rely heavily on the trial court’s
assessment of the credibility of witnesses, because the latter had the unique opportunity, denied to the appellate
courts, to observe the witnesses and to note their demeanor, conduct, and attitude under direct and cross-
examination. Hence, its factual findings are accorded great respect, even finality, absent any showing that certain
facts of weight and substance bearing on the elements of the crime have been overlooked, misapprehended, or
misapplied. 33

In the instant appeal, the RTC and CA uniformly found that PO3 Galvez’s and PO2 Hipolito’s testimonies anent the
conduct of the buy-bust operation were categorical, detailed, and credible.  Moreover, the accused-appellant had
34

not ascribed any ill motive against the two police officers which could have otherwise induced them to fabricate the
charges.

As the first issue, the accused-appellant claimed that it was highly improbable for him to peddle and possess
marijuana right in front of his house and within public view. This allegation fails to persuade especially in the light of
the court’s observation that of late, drug pushers have turned more daring and defiant in the conduct of their illegal
activities.35

Anent the second issue, the Court finds the chain of custody over the evidence seized from the accused-appellant
as unbroken and that there was sufficient compliance with Section 21 of the IRR of R.A. No. 9165.

PO3 Galvez positively testified that he marked the ten (10) plastic sachets containing marijuana and the pieces of
white paper while still in the place where the accused-appellant was arrested, and in the presence of the
latter.  PO2 Hipolito did the same relative to the plastic container with marijuana likewise found in the accused-
36

appellant’s possession.  When the members of the buy-bust team arrived in the police station, they turned-over the
37

person of the accused-appellant and the items seized from him to SPO1 Moran, who in turn, prepared the Evidence
Acknowledgment Receipt and letter request for laboratory examination.  Thereafter, PCI Arturo conducted the
38

laboratory examinations and found the specimens to be marijuana.  These were the same items identified by the
39

prosecution witnesses and presented to the trial court as evidence.

The accused-appellant lamented that the evidence seized were not photographed and inventoried in the presence
of a member of the media, a representative from the DOJ, and an elective government official. While this factual
allegation is admitted, the Court stresses that what Section 21 of the IRR of R.A. No. 9165 requires is "substantial"
and not necessarily "perfect adherence,"  as long as it can be proven that the integrity and the evidentiary value of
40

the seized items are preserved as the same would be utilized in the determination of the guilt or innocence of the
accused. 41

The accused-appellant attempted to establish that there was a breach in the chain of custody over the evidence
seized from him by pointing out that SPO1 Moran twice delivered the items to the crime laboratory – at first to a
certain PO1 Bolora and later, to PCI Arturo.  The Court notes that despite the foregoing allegation, the defense
42

agreed with the prosecution to dispense with the testimonies of SPO1 Moran and PCI Arturo. The parties entered
into stipulations and admissions of facts as regards the participation of the aforementioned two. This is no less than
an admission on the part of the defense that there was nothing irregular in SPO1 Moran and PCI Arturo’s
performance of their duties relative to preserving the integrity of the evidence which fell in their custody. Had the
accused-appellant sincerely believed that there was indeed a breach in the chain of custody over the seized items,
he would have insisted on putting SPO1 Moran and PCI Arturo on the witness stand for cross-examination. 1âwphi1

In sum, the Court finds the herein assailed decision affirming the RTC’s conviction of the accused-appellant for
violation of Sections 5 and 11, Article II of R.A. No. 9165 as amply supported by both evidence and jurisprudence.
The Court agrees as well with the CA in its modification of the wordings of the penalty imposed on the accused-
appellant for violation of the above-mentioned Section 11, as the same is mandated by Section 1 of the
Indeterminate Sentence Law.

IN VIEW OF THE FOREGOING, the Decision of the Court of Appeals dated October 31, 2012 in CA-G.R. CR-HC
No. 04989 is AFFIRMED in toto.

Evidence II.
11.) G.R. No. 205610               July 30, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
RAMONITO VILLARTA y RIVERA and ALLAN ARMENTA y CABILES, Accused-Appellants.

DECISION

PEREZ, J.:

This is an appeal from the Court of Appeals Decision  dated 20 July 2012 in CA-G.R. CR-HC No. 04953 affirming
1

the Regional Trial Court  (RTC) Joint Decision  dated 26 October 2010 in Criminal Case Nos. 14948-D, 14949-D,
2 3

14950-D, 14951-D and 14952-D, convicting herein appellant Ramonita Villarta y Rivera alias Monet (Villarta)
for Violation of Sections 5 and 11, Article II of Republic Act No. 9165, otherwise known as the "Comprehensive
Dangerous Drugs Act of 2002,'' and herein appellant Allan Armenta yCabiles alias Ambo (Armenta) for Violation of
Section 11 of the same law.

Appellant Villarta was charged in three (3) separate Informations,  all dated 24 April 2006, for Violation of Sections 5
4

(Illegal Sale of Dangerous Drugs), 11 (Illegal Possession of Dangerous Drugs) and 15 (Illegal Use of Dangerous
Drugs), Article II of Republic Act No. 9165, the accusatory portions of which read:

CRIMINAL CASE NO. 14948-D

On or about [20 April 2006] in Pasig City, and within the jurisdiction of this Honorable Court, the [herein
appellant Villarta], not being lawfully authorized by law, did then and there willfully, unlawfully and feloniously
sell, deliver and give away to [Police Officer 2 (PO2) Ronald R. Caparas], a police poseur buyer, one (1) heat-
sealed transparent plastic sachet containing 0.02 gram of white crystalline substance, which was found positive to
the test for ephedrine, a dangerous drug, in violation of the said law.  (Emphasis supplied).
5

CRIMINAL CASE NO. 14949-D

On or about [20 April 2006] in Pasig City, and within the jurisdiction of this Honorable Court, the [appellant Villarta],
not being lawfully authorized to possess any dangerous drug, did then and there willfully, unlawfully and feloniously
have in his possession and under his custody and control one (1) heat-sealed transparent plastic sachet containing
0.03 gram of white crystalline substance, which was found positive to the test for ephedrine, a dangerous drug, in
violation of the said law.  (Emphasis supplied).
6

CRIMINAL CASE NO. 14950-D

On or about [20 April 2006] in Pasig City, and within the jurisdiction of this Honorable Court, the [appellant Villarta],
not being lawfully authorized by law to use any dangerous drug, did then and there willfully, unlawfully and
knowingly use, smoke and ingest into his body a methylamphetamine hydrochloride, a dangerous drug, and, that
this is the first offense of the [appellant Villarta] under Section 15, of the abovecited law, who after a confirmatory
urine test, was found positive to the test for methamphetamine hydrochloride, a dangerous drug, in violation of the
above-cited law.  (Emphasis supplied).
7

Appellant Armenta was charged in two (2) separate Informations,  all dated 24 April 2006, for Violation of Sections
8

11 and 15, Article II of Republic Act No. 9165, the accusatory portions of which read:

CRIMINAL CASE NO. 14951-D

On or about [20 April 2006] in Pasig City, and within the jurisdiction of this Honorable Court, [the herein appellant
Armenta], not being lawfully authorized to possess any dangerous drug, did then and there willfully, unlawfully and
feloniously have in his possession and under his custody and control one (1) heat-sealed transparent plastic sachet

Evidence II.
containing 0.03 gram of white crystalline substance, which was found positive to the test for ephedrine, a dangerous
drug, in violation of the said law.  (Emphasis supplied).
9

CRIMINAL CASE NO. 14952-D

On or about [20 April 2006] in Pasig City, and within the jurisdiction of this Honorable Court, the [appellant Armenta],
not being lawfully authorized by law to use any dangerous drug, did then and there willfully, unlawfully and
knowingly use, smoke and ingest into his body a THC-metabolites, a dangerous drug, and, that this is the first
offense of the [appellant Armenta] under Section 15, of the above-cited law, who after a confirmatory urine test, was
found positive tothe test for methamphetamine hydrochloride, a dangerous drug, in violation of the above-cited
law.  (Emphasis supplied).
10

Upon arraignment,  both appellants pleaded NOT GUILTY to the respective charges against them. Thereafter, joint
11

trial on the merits ensued.

The prosecution presented PO2 Ronald R. Caparas (PO2 Caparas), who acted as the poseur-buyer in the buy-bust
operation conducted against appellant Villarta;  PO2 Jesus Cambronero (PO2 Cambronero), who acted as the
12

immediate back-up of PO2 Caparas;  and Police Senior Inspector Sandra Decena Go (P/Sr. Insp. Go), the forensic
13

chemical officer who conducted physical, chemical and confirmatory tests on the items seized from the
appellants.  The testimony, however, of the other prosecution witness PO1 Allan Mapula (PO1 Mapula) was
14

dispensed with per stipulation of the parties that: (1) he is the investigating officer in these cases; and (2) he was the
one who prepared the Affidavit of Arrest of PO2 Caparas and the Request for Laboratory Examination, aswell as the
Request for Drug Test. 15

On the side of the defense, both appellants were presented to contradict all the allegations of the prosecution. 16

The respective versions of the prosecution and the defense, as accurately summarized by the Court of Appeals, are
as follows:

On 19 April 2006 at around 9:30 o’clock in the evening, PO2 [Caparas] was at the Station Anti-Illegal Drugs Special
Operation Task Force (SAID-SOTF) office in Pasig City. A confidential informant arrived and spoke with Police
Inspector Ronaldo Pamor [P/Insp. Pamor]. The informant gave the tip that a certain MONET was selling shabualong
Urbano Velasco Avenue, Pinagbuhatan, Pasig City. As a result, [P/Insp. Pamor] conducted a short briefing attended
by [Senior Police Officer 1 (SPO1)] Baltazar, PO2 Camb[r]onero, PO2 Monte, [Police Officer 1 (PO1)] Caridad, PO1
Mapula and PO2 Caparas. [P/Insp.] Pamor instructed PO1 Mapula to prepare a pre-operational report  to be 17

submitted to the Philippine Drug Enforcement Agency (PDEA), and directed PO1 Caparas to act as the poseur-
buyer while PO2 Camb[r]onera was to serve as his back-up.

In preparation for their operation, PO2 Caparas marked two pieces of the One-Hundred Peso (₱100.00) bill with his
initials "RRC" on the lower right portion. Tout de suite, the team, together with the confidential informant proceeded
to Velasco Avenue. There, they went inside an alley located at the Cupa Compound. However, they learned from
the two persons standing along the alley that MONET had already left. [P/Insp.] Pamor instructed the informant to
inform them whenever MONET would return.

The following day, at about 5:00 o’clock in the afternoon, the confidential informant called and tolda member of the
SAID-SOTF that MONET was already in the target place.Subsequently, the buy-bust team met with the former at
the market terminal. PO2 Caparas and the informant again proceeded to Velasco Avenue. When they reached
Cupa Compound, the latter secretly told PO2 Caparas that MONET was standing at the alley. They approached
MONET. The informant then told him: "Pare iiscore to" referring to PO2 Caparas. He told MONET that he would buy
₱200.00 worth of shabuafter which, he handed MONET the money. At this point, a male person arrived and asked
MONET: "Pare, meron pa ba?" MONET retorted: "Dalawang piraso na lang ito." The male person then gave
MONET ₱100.00. Immediately thereafter, MONET handed one sachet to PO2 Caparas and the other one to the
male person. PO2 Caparas examined the sachet and gave the pre-arranged signal by wearing his cap. He then
introduced himself as a police officer, and arrested MONET who was identified as [herein appellant] Ramonito
Villarta [y Rivera]. When the other members of the team arrived, PO2 Caparas told PO2 Camb[r]oner[o] thatthe
other male person was also possessing shabu. In a bit, he was also apprehended and identified later on as [herein
appellant] Allan Armenta [y Cabiles] @ AMBO. PO2 Caparas recovered from MONET the marked money and one
Evidence II.
plastic sachet while PO2 Camb[r]onero recovered from AMBO the other plastic sachet. Both PO2 Caparas and PO2
Camb[r]onero marked the items they had seized.

At the police station, PO1 Mapula prepared the requests for drug test and laboratory examination. Thereafter, the
seized items were brought to the Philippine National Police Crime Laboratory. Forensic Chemical Officer [P/Sr. Insp.
Go] received the above-mentioned requests and conducted laboratory tests on the subject specimens. The seized
drugs gave positive result for ephedrine, a dangerous drug. Likewise, the drug tests showed that the respective
urine samples of MONET and AMBO were positive for methamphetamine and THC metabolites, both of which are
dangerous drugs.

The defense proffered a divergent version of the facts.

Both MONET and AMBO denied the charges. MONET asseverated that between 3:00 o’clock and 4:00 o’clock inthe
afternoon of 19 April 2006, he was resting in the room he was renting. Suddenly, four armed male persons entered
looking for a certain "Jay Jay." When he replied that he did not know such person, he was brought and detained in
Pariancillo. It was there where he first met AMBO.

On the other hand, AMBO maintained that between 1:00 o’clock and 2:00 o’clock in the afternoon on evendate while
waiting for a tricycle in front of the 7-11 Store, three armed persons approached him. One of them placed his arm
around his shoulder, the other one handcuffed him, while the third called for a tricycle. Subsequently, he was
brought to the Pariancillo Headquarters. When heasked why he was arrested, the aforesaid men did not answer
him. At the headquarters, he was frisked since they were looking for a cellular phone which he had allegedly
snatched. When nothing was found with him, he was mauled and forced to confess where he brought the phone. It
was there where he got to know MONET. 18

On 26 October 2010, the RTC, after considering the testimonies of both parties, rendered its Joint Decision,the
decretal portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1) In Criminal Case No. 14948-D, this Court finds the [herein appellant] Ramonito Villarta yRivera
aliasMonet, guilty beyond reasonable doubt of the crime of Violation of Section 5, Article II of R.A. No. 9165,
otherwise known as the Comprehensive Dangerous Drugs of 2002, and he is sentenced to suffer the
penalty of life imprisonment and to pay a fine in the amount of ₱500,000.00 without subsidiary imprisonment
in case of insolvency;

2) In Criminal Case No. 14949-D and Criminal Case No. 14951-D, this Court finds the [appellants] Ramonito
Villarta yRivera aliasMonetand Allan Armenta yCabiles alias Ambo, guiltybeyond reasonable of the crime of
Violation of Section 11, Article II of R.A. No. 9165, otherwise known as the Comprehensive Dangerous
Drugs of 2002 and they are each sentenced to suffer an indeterminate prison term of twelve (12) years and
one (1) day, as minimum, to fourteen (14) years and eight (8) months, as maximum, and to pay a fine of
₱300,000.00 without subsidiary imprisonment in case of insolvency; and

3) Criminal Case No. 14950-D and Criminal Case No. 14952-Dfor Violation of Section 15, Article II of R.A.
No. 9165 otherwise known as the Comprehensive Dangerous Drugs of 2002 against [appellants] Ramonito
Villarta y Rivera alias Monetand Allan Armenta y Cabiles aliasAmbo are ordered DISMISSED.

In the meantime, the Branch Clerk ofCourt is directed to transmit the dangerous drugs, "ephedrine," subject of these
cases to the Philippine Drug Enforcement Agency for its disposition in accordance with law.  (Emphasis supplied).
19

The RTC elucidated that the prosecution has sufficiently established all the elements for a successful prosecution of
illegal sale of prohibited drugs, which is in violation of Section 5, Article II of Republic Act No. 9165. PO2 Caparas,
who acted as the poseur-buyer, specifically stated that appellant Villarta sold tohim one-heat sealed transparent
plastic sachet containing 0.02 gram of white crystalline substance worth ₱200.00. It was seized and later on found
positive to the test for ephedrine, a dangerous drug. Their transaction was proven bythe actual exchange of the
marked money consisting of two ₱100.00-pesobills, and the drug sold. PO2 Caparas positively identified appellant

Evidence II.
Villarta as the seller of the said oneheat sealed transparent plastic sachet containing white crystalline substance,
which was later on confirmed as ephedrine, a dangerous drug, by P/Sr. Insp. Go, the Forensic Chemist, who
performed laboratory examination on all the seized items. 20

As for the charge of illegal possession of prohibited drugs, which is in violation of Section 11, Article II ofRepublic
Act No. 9165, against both appellants, the RTC also found that all the elements thereof were completely satisfied.
When the appellants werearrested by PO2 Caparas and PO2 Cambronero, they were both found in possession of
dangerousdrugs. Both of them could not present any proof orjustification that they were fully authorized by law to
possess the same. Having been caught in flagrante delicto, there is prima facieevidence of animus possidendior
intent to possess.21

In dismissing the charge of illegal use of dangerous drugs in violation of Section 15, Article II of Republic Act No.
9165, against both appellants, the RTC applied the provisoof the afore-stated Section 15. The RTC, thus, held that
when a person is found tohave possessed and used dangerous drugs at the same time, Section 15 shall not be
applicable in which case the provisions of Section 11 shall apply. 22

The RTC likewise held that despite the non-compliance with the requirements of physical inventory and photograph
of the seized items, the integrity and evidentiary value of the same were properly preserved because the chain of
custody appears not to havebeen broken. Thus, in its entirety, there was substantial compliance with the law. 23

On appeal, the Court of Appeals affirmed the RTC Joint Decision dated 26 October 2010. 24

Hence, the present appeal raising the same assignment of errors in their Appellants’ Brief filed before the Court of
Appeals, towit: (a) the trial court gravely erred in pronouncing the guilt of the [appellants] despite the obvious non-
compliance with the requirements for the proper custody of seized dangerous drugs under Republic Act No. 9165;
and (b) the trial court gravely erred in pronouncing the guilt of the [appellants] notwithstanding the failure of the
prosecution to preserve the integrity and evidentiary value of the allegedly seized dangerous drugs. 25

This Court sustains appellants’ conviction.

Essentially, the findings of fact of the trial court are entitled to great weight on appeal and should not be disturbed
except for strong and valid reasons since the trial court is in a better position to examine the demeanor of the
witnesses while testifying.  This rule finds aneven more stringent application where said findings are sustained by
26

the Court of Appeals  as in this case.

27

After a careful perusal of the records, this Court finds no compelling reason to deviate from the lower courts’ findings
that, indeed, the appellants’ guilt on the respective charges against them were sufficiently proven by the prosecution
beyond reasonable doubt.

In every prosecution for illegal sale of dangerous drugs, like ephedrinein this case, the following elementsmust be
sufficiently proved to sustain a conviction therefor: (1) the identity of the buyer, as well as the seller, the object and
consideration of the sale; and (2) the delivery of the thing sold and the payment therefor.What is material is proof
that the transaction or sale actually took place, coupled with the presentation in court of the dangerous drugs seized
as evidence. The commission of the offense of illegal sale of dangerous drugs requires merely the consummation of
the selling transaction, which happens the moment the buyer receives the drug from the seller. Settled is the rule
that as long as the police officer went through the operation as a buyer and his offer was accepted by appellant and
the dangerous drugs delivered to the former; the crime is considered consummated by the delivery of the goods. 28

In the present case, this Court totallyagrees with the lower courts that the aforesaid elements of illegal sale of
dangerous drugs were adequately and satisfactorily established by the prosecution.

To note, appellant Villarta, who was caught in flagrante delicto, was positively identified by PO2 Caparas, who acted
as the poseur-buyer, as the same person who sold the one heat-sealed transparent plastic sachet containing 0.02
gram of white crystalline substance, later confirmed as ephedrine, for a consideration of ₱200.00.The said one heat-
sealed transparent plastic sachet of ephedrinewas presented in court, which PO2 Caparas identified to be the same
object sold to him by appellant Villarta. Moreover, the same bears the markings RRV/RRC 04-20-06, which he had

Evidence II.
written at the scene of the crime. "RRV" represents the initials of appellant Villarta while "RRC" represents the
initials of PO2 Caparas. The marking "04-20-06" represents the date the said drug was seized. PO2 Caparas
similarly identified in court the recovered marked money from appellant Villarta consisting of two ₱100.00-peso bills
in the total amount of ₱200.00 with markings "RRC" on the lower right portion thereof. 29

Likewise, the testimony of PO2 Caparasclearly established in detail how his transaction with appellant Villarta
happened starting from the moment their informant introduced him to appellant Villarta as someone interested in
buying his stuff, up to the time he handed to appellant Villarta two ₱100.00 peso bills marked money amounting to
₱200.00and, in turn, appellant Villarta handed him the one heat-sealed transparent plastic sachet of ephedrinethus
consummating the sale transaction between them. PO2 Caparas caused the one-heat sealed transparent plastic
sachet of ephedrineto be examined at the PNP Crime Laboratory. The item weighing 0.02 gram was tested positive
for ephedrineas evidenced by Chemistry Report No. D-355-06  prepared by P/Sr. Insp. Go, Forensic Chemical
30

Officer of the PNP Crime Laboratory, Camp Crame, Quezon City. 31

From the foregoing, it is already beyond question that appellant Villarta’s guilt for illegal sale of ephedrine, a
dangerous drug, in violation of Section 5, Article II of RepublicAct No. 9165 was proven by the prosecution beyond
reasonable doubt.

With respect to the prosecution ofillegal possession of dangerous drugs, the following facts must be proved: (a) the
accused was in possession of dangerous drugs, (b) such possession was not authorized by law, and (c) the
accused was freely and consciouslyaware of being in possession of dangerous drugs. 32

In the case under consideration, this Court also conforms to the lower courts’ findings that all the elementsof illegal
possession of dangerous drugs were adequately proven by the prosecution.

It bears emphasis that when the sale transaction between PO2 Caparas and appellant Villarta was on-going,
another male person, who was later on identified to be appellant Armenta, came in and also bought one-heat sealed
transparent plastic sachet containing 0.03 gram of white crystalline substance later on confirmed to be ephedrine, a
dangerous drug. Upon the consummation of the sale transaction,between PO2 Caparas and appellant Villarta, the
former gave the pre-arranged signal by wearing his cap. PO2 Caparas then introduced himself as the police officer
and arrested appellant Villarta. PO2 Caparas then recovered from appellant Villarta the marked money and another
one-heat sealed transparent plastic sachet containing 0.03 gram of white crystalline substance later on confirmed as
ephedrine, a dangerous drug. When the immediate back-up officer, PO2 Cambronero, arrived, PO2 Caparas
informed him that appellant Armenta was in possession of one-heat sealed transparent plastic sachet containing
0.03 gram of white crystalline substance,which the latter just bought from appellant Villarta. Thus, appellant Armenta
was also apprehended and PO2 Cambronero recovered from him one heat-sealed transparent plastic sachet
containing 0.03 gram of white crystalline substance confirmed to be ephedrine, a dangerous drug.  Clearly, both
33

appellants were found in possession of dangerous drugs. As observed by the RTC, which the Court of Appeals
affirmed, both appellants could not present any proof or justification that they were fully authorized by law to
possess the same. Having been caught in flagrante delicto, there is prima facieevidence of animus possidendior
intent to possess.

Now, going to the issue raised by the appellants on the failure of the prosecution to comply with Section 21,Article II
of Republic Act No. 9165, this Court similarly affirms the findings of both lower courts that such failure will not render
the appellants’ arrestillegal or the items seized/confiscated from them inadmissible.

In People v. Ventura,  this Court held that:

34

The procedure for the custody and disposition of confiscated, seized and/or surrendered dangerous drugs, among
others, is provided under Section 21, paragraph 1 of Article II of Republic Act No. 9165, as follows:

(1) The apprehending officer/team having initial custody and control of the drugs shall,immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the
media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies
of the inventory and be given a copy thereof. 1âwphi1

Evidence II.
Section 21(a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165, which implements
said provision, stipulates:

(a) The apprehending officer/team having initial custody and control of the drugs shall,immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the
media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies
of the inventory and be given a copy thereof: x x x Provided, further, that non-compliance with these requirements
under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over
said items.

Under the same proviso, non-compliance with the stipulated procedure, under justifiable grounds, shall not render
void and invalid such seizures of and custody over saiditems, for as long as the integrity and evidentiary value of the
seized items are properly preserved by the apprehending officers.

Clearly, the purpose of the procedure outlined in the implementing rules is centered on the preservationof the
integrityand evidentiary valueof the seized items.  (Emphasis supplied). The chain of custody requirement performs
35

the function of ensuring that the integrity and evidentiary value of the seized items are preserved, so much so that
unnecessary doubts as to the identity of the evidence are removed. To be admissible, the prosecution must show by
records or testimony, the continuous whereabouts of the exhibit at least between the time it came into possession of
the police officers and until it was tested in the laboratory to determine its composition up to the time it was offered
in evidence. 36

In the case at bench, after PO2 Caparas seized and confiscated the one heat-sealed transparent plastic sachet
containing 0.02 gram of ephedrine, which was the subject of the sale transaction, as well as the one heat-sealed
transparent plastic sachet containing 0.03 gram of ephedrine, which was recovered from appellant Villarta after he
was arrested and ordered to empty his pocket, and the marked money used in the buy-bust operation, the former
immediately marked the seized drugs atthe place of arrest. He put the markings RRV/RRC 04-20-06 on the
seizeddrug subject of the sale and the markings RRV/RRC on the seized drug recovered from appellant Villarta.
PO2 Cambronero, the immediate back-up of PO2 Caparas, also recovered from appellant Armenta one-heat sealed
transparent plastic sachet containing 0.03 gram of ephedrine. PO2 Cambronero, who was then beside PO2
Caparas, similarly marked the seized drug from appellant Armenta at the place of arrest. They then brought the
appellants, together with the seized items at their station. Where PO1 Mapula, the investigating officer, prepared the
Request for Laboratory Examination,  the Request for Drug Test  and the Affidavit of Arrest of PO2
37 38

Caparas.  Thereafter, PO2 Caparas personally brought all the seized items to the crime laboratory for examination.
39

The seized items were examined by P/Sr. Insp. Go and they all yielded positive results for ephedrine, a dangerous
drug. When the seized items were offered in court, they were all properly identified by the prosecution witnesses.
These facts persuasively proved that the three plastic sachets of ephedrine presented in court were the same items
seized from the appellants during the buy-bust operation.The integrity and evidentiary value thereof were duly
preserved.

It has been judicially settled that in buy-bust operations, the testimony of the police officers who apprehended the
accused is usually accorded full faith and credit because of the presumption that they have performed their duties
regularly. This presumption is overturned only if there is clear and convincing evidence that they were not properly
performing their duty or that they were inspired by improper motive.  In this case, there was none.
40

In comparison to the overwhelming evidence of the prosecution, all that the appellants could muster is the defense
of denial and frame-up. Denial or frame-up, like alibi, has been viewed with disfavor for it can just as easily be
concocted and is a common and standard defense ploy in most prosecutions for violation of DangerousDrugs Act.
The defense of frameup or denial in drug cases requires strong and convincing evidence because of the
presumption that the law enforcement agencies acted in the regular performance of their official duties.  In the
41

present case, the bare denial of the appellants cannot prevail over the positive testimony of the prosecution
witnesses.

WHEREFORE, premises considered, the Court of Appeals Decision dated 20 July 2012 in CA-G.R. CR-HC No.
04953 is hereby AFFIRMED in toto.
Evidence II.
Evidence II.
12.) G.R. No. 206366               August 13, 2014

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
EDUARDO BALAQUIOT y BALDERAMA, Appellant.

DECISION

PEREZ, J.:

At bench is an appeal  assailing the Decision  dated 29 August 2012 of the Court of Appeals (CA) in CA-G.R. CR-
1 2

H.C. No. 04595. In the said decision, the appellate court affirmed the conviction of herein appellant Eduardo B.
Balaquit for violation of Section 5 of Republic Act No. 9165 or the Comprehensive Dangerous Drugs Act of 2002.

The facts are as follows:

On 11 June 2008, appellant was arrested during a buy bust operation performed by officers of the Philippine
National Police (PNP) in Camiling, Tarlac. He was thereafter charged with the offense of illegal sale of shabu under
an Information filed before the Regional Trial Court (RTC) of Tarlac.  The Information reads:
3

That on June 11, 2008 at on or about 10 AM at Bobon 1st , in the Municipality of Camiling, Province of Tarlac,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and there willfully
and feloniously sell to one another one (1) heat sealed plastic sachet containing 0.049 grams of met[h]amphetamine
hydrochloride commonly known as "shabu", a dangerous drug, without being authorized by law.

Appellant was arraigned on 26 August 2008 and entered a plea of not guilty. Trial thereafter ensued.

During trial, the prosecution presented, among others, the following object evidence:

1. One (1) heat-sealed transparent plastic sachet containing 0.049 grams of white crystalline substance.The
plastic sachet is dated "11 June 2008" and marked with "JSE-EBB,"  and
4

2. Chemistry Report D-184-08 5

The foregoing object evidence weresupplemented by the testimonies of Police Officer Jay Espiritu (PO3 Espiritu),
Special Police Officer Noli Daraman (SPO1 Daraman) and police chemist Jebie Timario (Mr. Timario).

PO3 Espiritu and SPO1 Daraman were the police officers who conducted the buy-bust operation that led tothe
arrest of the appellant. Their testimonies recounted the following events:
6

1. On 11 June 2008, PO3 Espiritu and SPO1 Daraman engaged in a buy-bust operation against
appellantafter receiving confirmation from the Chief Intelligence Officer(CIO) of the Camiling PNP that the
former was involved in the peddling of shabu. The confirmation from the CIO came at the heels of a week-
long surveillance on the appellant conducted by the Camiling PNP.

2. As the designated poseur-buyer of the operation, PO3 Espiritu met with the appellant outside the latter’s
residence at Bobon 1st, Camiling, Tarlac. SPO1 Daraman,on the other hand, hid behind a tree about ten
(10) to twenty(20) meters from where PO3 Espiritu and appellant were standing.

3. PO3 Espiritu was able to negotiate and successfully purchase from the appellant one (1) heat-sealed
transparent plastic sachet.  In exchange, PO3 Espiritu handed to the appellant a previously marked ₱500
1âwphi1

bill. After the transaction, PO3 Espiritu proceeded to arrest appellant. SPO1 Daraman, who was able to
witness the exchange, emerged from his hiding place and aided in the arrest of the appellant.

Evidence II.
 4. PO3 Espiritu and SPO1 Daraman retrieved from appellant the marked ₱500 bill. They then proceeded to
call the barangay officials of the place to witness the inventory of the plastic sachet containing white
crystalline substance and the marked money. Photographs of the plastic sachet, the marked bill and of the
appellant were also taken.

5. PO3 Espiritu and SPO1 Daraman brought the appellant and the recovered items to the Camiling PNP
station. The plastic sachet containing white crystalline substance were then dated "11 June 2008" and
marked with "JSE-EBB"—the initials of both PO3 Espiritu and the appellant. 6. On 12 June 2008, PO3
Espiritu and SPO1 forwarded to the PNP Crime Laboratory the plastic sachet, now dated "11 June 2008"
and marked "JSE-EBB," along with a request for laboratory examination.

In his testimony, PO3 Espiritu also identified the plastic sachet dated "11 June 2008" and marked with "JSE-EBB"
presented by the prosecution as the very one he retrieved from the appellant during the buy-bust. 7

Mr. Timario, on the other hand, isa police chemist for the Camiling PNP and the one who conducted laboratory
examination on the contents of the plastic sachet dated "11 June 2008" and marked "JSE-EBB." He is also the
signatory of Chemistry Report D-184-08. Mr. Timario testified that per Chemistry Report D-184-08, hewas able to
confirm that the contents of the plastic sachet dated "11 June 2008" and marked "JSE-EBB" are positive for
methamphetamine hydrochloride or shabu. 8

The defense, for its part, relied on the testimonies of the appellant and his brother, Exequil Balaquit (Exequil).

In substance, appellantdenied being caught, in flagrante, selling shabuand claimed that he was merely a victim of a
police frame-up. He professed the following version of events: 9

1. On the date and time of the supposed buy-bust, he was in a day care center where he bought some
sopasfor his children. On his way home, he encountered two (2) men aboard a motorcycle. 2. One of the
two (2) men aboard the motorcycle alighted and drew a gun at him. At that point, SPO1 Daraman arrived
and introduced himself and the one pointing a gun at him as policemen.

3. Afterwards, SPO1 Daraman and other police officers led him to an alley. One of the police officers twisted
his arms. At the alley, he was forced to sign a report. Later, the barangay captain also arrived and signed
the same report.

4. He was then brought to the Camiling PNP station where he was detained.

Exequil corroborated the denial of his brother. He recounted that he saw the appellant, arm-twisted and all, being
led to an alley by police officers.
10

On 24 June 2010, the RTC rendered a decision  finding appellant guilty beyond reasonable doubt of the offense of
11

illegal sale of shabuunder Section 5  of the Comprehensive Dangerous Drugs Act of 2002. In doing so, the RTC
12

gave full faith and credenceto the version of the prosecution as established by the testimonies of PO3 Espiritu,
SPO1 Daraman and Mr. Timario. Accordingly, the RTC sentenced appellant to suffer the penalty of life
imprisonment and to pay a fine of ₱500,000.00.

Aggrieved, appellant appealedthe RTC decision to the CA.

On 29 August 2012, the CA rendered a decision affirming the RTC. Hence, this appeal.

In this appeal, appellant claims that the RTC and the CA erred in giving full faith and credence to the version of the
prosecution. To support his claim, he cites three (3) circumstances:

1. The prosecution never presented as a witness the CIO of the Camiling PNP.

2. The Camiling PNP never coordinated with the Philippine Drug Enforcement Agency (PDEA).

Evidence II.
 3. The representation by the prosecution that the appellant was under surveillance prior to the buy-bust is
not believable. If it were true, then the Camiling PNP could have just applied for a search warrant against the
appellant.

These circumstances, the appellant believes, destroy the credibility of the prosecution story that the Camiling PNP
really undertook a genuine buybust operation and also lend trustworthiness to his own version that he was merely a
victim of a frame-up.

At any rate, the appellant adds thathis acquittal for the two charges is in order because the prosecution failed to
prove the corpus delicti of the offense charged. Appellant claims that the identity of the shabuthat was presented by
the prosecution in evidence issuspect in view of the failure by PO3 Espiritu and SPO1 Daraman to mark the plastic
sachet they allegedly retrieved during the buy-bust immediately thereat as required by Section 21  of the
13

Comprehensive Dangerous Drugs Act of 2002. Appellant points out that PO3 Espiritu and SPO1 Daraman, by their
own testimonies, admitted to marking such plastic sachetonly after bringing the same to the police station.

OUR RULING

We deny the appeal.

The RTC and the Court of Appeals did not err in giving full faith and credence to the testimony of the prosecution
witnesses

We find no error on the part of the RTC and the CA in sustaining the prosecution’s version of events. The
circumstances cited by the appellant does not at all destroy its credibility:

First. The non-presentation as a witness of the CIO of the Camiling PNP does not discount that a legitimate buy-
bust operation was undertaken in this case. The conduct of the buy-bust operation was already adequately
established by the testimonies of PO3 Espiritu and SPO1 Daraman who were the very participants of such
operation. Indeed, the testimony of the CIO would, at most, merely corroborate the testimonies of PO3 Espiritu and
SPO1 Daraman.

Second. The appellant’s qualm regarding the absence of coordination between the Camiling PNP and the PDEA is
also immaterial. In People v. Roa,  this Court ruled that prior coordination with the PDEA is not a condition sine qua
14

nonfor the validity of every entrapment operation conducted by police authorities:

In the first place, coordination with the PDEA is not an indispensable requirement before police authorities may carry
out a buy-bust operation.  While it is true that Section 86  of Republic Act No. 9165 requires the National Bureau of
1âwphi1
15

Investigation, PNP and the Bureau of Customs to maintain "close coordination with the PDEA on all drug related
matters," the provision does not, by so saying, make PDEA’s participation a condition sine qua nonfor every buy-
bust operation. After all, a buy-bust is just a form of an in flagrante arrest sanctioned by Section 5, Rule 113  of the
16

Rules of the Court, which police authorities may rightfully resort to in apprehending violators of Republic Act No.
9165 in support of the PDEA.  A buy-bust operation is not invalidated by mere non-coordination with the PDEA.
17

Third. The assertion that the Camiling PNP could have just applied for a search warrant instead of conducting a buy-
bust operation is irrelevant to the issue of whether a legitimate buy-bust operation was, in fact, undertaken. The
decision whether to apply for a search warrant or to conduct instead a buy-bust operation on any given case is a
matter rightfully addressed to the sound discretion of the police officers. Certainly, police officers have the right to
choose which legal means or processes are best suited, given the circumstances, in accomplishing the task they
are called upon to perform.

Verily, appellant is left with only his denial to fend off the serious accusations against him. Such denial, by itself,
however, cannot overcome the weight traditionally accorded toaffirmative testimonies by police officers with
unsullied credibility.  The RTC and the CAwere, therefore, correct in giving full faith and credit to the open court
18

narrations of PO3 Espiritu and SPO1 Daraman.

Evidence II.
Corpus delicti of the offense
proven beyond reasonable doubt

We also find that the corpus delictiof the offense was adequately proven in this case.

A review of the evidence on recordwill show that the prosecution was able to establish an unbroken chain of
custody over the shabuthat it claims as having been sold by the appellant:

1. PO3 Espiritu testified that he was able to buy ₱500.00 worth of shabuinside a transparent plastic sachet
from appellant, which he brought to the Camiling PNP station. 19

2. Upon arrival at the station, PO3 Espiritu Espiritu testified that he dated the plastic sachet "11 June 2008"
a marked it with "JSE-EBB." Afterwards, a request for laboratory examination was prepared. 20

3. The next day, plastic sachet dated "11 June 2008" and marked "JSE-EBB" was sent to the PNP Crime
Laboratory along with the request for laboratory examination. 21

4. At the PNP Crime Laboratory, Mr. Timario conducted examination on the contents of the plastic sachet
dated "11 June 2008" and marked "JSE-EBB" that yielded positive results for shabu. 22

5. Afterwards, the shabuwas retrieved for purposes of the trial. 23

Evidently, the prosecution was able to account for each and every link in the chain of custody over the shabu, from
the moment it was retrieved during the buy-bust operation up to the time it was presented before the court as proof
of the corpus delicti.

Contrary to appellant’s assertion, the failure by PO3 Espiritu and SPO1 Daraman to mark the seized
shabuimmediately at the place where the buy-bust was conducted will not automatically impair the integrity of the
chain of custody so established. Strictly speaking, marking the seized contraband at the nearest police station,rather
than at the place where the buy-bust operation was conducted, is not even a violation of the procedure set forth in
Section 21 of the Comprehensive Dangerous Drugs Act of 2002. Thus, in People v. Resurreccion,  this Court
24

explained:

Accused-appellant broaches the view that SA Isidoro’s failure to mark the confiscated shabuimmediately after
seizure creates a reasonable doubt as to the drug’s identity. People v. Sanchez,  however, explains that RA 9165
25

does not specify a time frame for "immediate marking," or where said marking should be done:

What Section 21 of R.A. No. 9165 and its implementing rule do not expressly specify is the matter of "marking" of
the seized items in warrantless seizures to ensure that the evidence seized upon apprehension is the same
evidence subjected to inventory and photography when these activities are undertaken at the police station rather
than at the place of arrest. Consistency with the enter the chain and are eventually the ones offered in evidence -
should be done ( 1) in the presence of the apprehended violator (2) immediately upon confiscation. 1âwphi1

To be able to create a first link in the chain of custody, then, what is required is that the marking be made in the
presence of the accused and upon immediate confiscation. "Immediate confiscation" has no exact definition. Thus,
in People v. Gum-Oyen,  testimony that included the marking of the seized items at the police station and in the
26

presence of the accused was sufficient in showing compliance with the rules on chain of custody. Marking upon
immediate confiscation contemplates even marking at the nearest police station or office of the apprehending
team. (Emphasis supplied)

Verily, We are satisfied that the corpus delicti of the offense in this case was proven beyond reasonable doubt.

WHEREFORE, premises considered, the instant appeal is DENIED. The Decision dated 29 August 2012 of the
Court of Appeals in CA-G.R. CR-H.C. No. 04595 is hereby AFFIRMED.

Evidence II.
13.) G.R. No. 190175               November 12, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
EDWIN CABRERA, Accused-Appellant.

RESOLUTION

DEL CASTILLO, J.:

Assailed in this appeal is the June 18, 2009 Decision  of the Court of Appeals (CA) in CA-G.R. CEB-CR-H.C. No.
1

00784 which affirmed in all respects the March 5, 2007 Decision  of the Regional Trial Court (RTC), Branch 15,
2

Cebu City in Criminal Case No. CBU-64615, finding appellant Edwin Cabrera (appellant) guilty beyond reasonable
doubt of violation of Section 5, Article II of Republic Act No. 9165  (RA 9165) and sentencing suffer the penalty oflife
3

imprisonment and to pay a fine of ₱500,000.

Factual Antecedents

After receiving information from residents of Sitio Galaxy, Tangke, Talisay, Cebu and a report from a confidential
asset of the illegal drug activities of appellant, police officers from the Talisay Police Station composed of POI
Leopoldo Palconit (POI Palconit), P03 Isaias Cabuenas, and P02 Joel Cunan conducted a buy-bust
operation against appellant on September 30, 2002. At about 4:30 p.m., poseur-buyer POI Palconit, together with
the confidential asset, approached appellant who was standing outside his house. The confidential asset introduced
PO I Palconit to appellant as a person who wanted to buy shabu. PO 1 Palconit gave appellant two marked ₱50.00
bills, while the latter handed to him two plastic sachets containing white crystalline substance. Thereupon, PO I
Palconit made the pre-arranged signal by touching his head with his right hand. His back-ups then rushed to the
scene and simultaneously therewith POI Palconit arrested the appellant. He then put the markings "EC" on the two
plastic sachets and brought the same to the Philippine National Police (PNP) Crime Laboratory for forensic
examination.  The· following day or on October 1, 2002, a Complaint/Information was filed against appellant
4

charging him with violation of Sec. 5, Article II, of RA 9I65 as amended, the pertinent portion of which reads:

That on or about 4:30 P.M. of September 30, 2002, at Tangke, Talisay City, Cebu, Police Operatives of Talisay City
Police Station proceeded to Tangke, Talisay City, Cebu to conduct buy[-]bust operation [resulting in] the arrest of
one (1) Edwin Cabrera and within the jurisdiction of this Honorable Court, the above[-]named accused without the
authority of the law, did then and there, willfully, unlawfully and feloniously, [recover] from [his] possession, custody
and control, [t]wo (2) xx x plastic pack[s] of white crystalline substance believed to be shabu, other paraphernalia in
[his] illegal activity and [t]wo [f]ifty[-p]eso [b]ill[s] used as mark[ed] money with [the markings] SN.WD565189 and
VH234189 (Recovered White [Crystalline] Substance submitted to Crime Lab. [ f]or examination.

CONTRARY TO LA W. 5

The chemistry report  from the PNP Crime Laboratory later revealed that the white crystalline substance with a total
6

weight of O. I I gram inside the two plastic sachets marked with "EC" tested positive for methylamphetamine
hydrochloride or shabu, a dangerous drug.

Appellant pleaded "not guilty" to the crime charged.  He denied the accusations against him and offered his own
7

version of the story. According to appellant, at around 4:30 p.m. of September 30, 2002, he was at the alley outside
his house washing clothes. 1bree men then approached him. They requested him to buy shabu and gave ₱200.00.
He acceded and thus went to the house of a certain Rey Campo (Campo) which is about 50 meters or six houses
away from his house. After buying shabu from Campo, he went back to his house to give it to the three men.
Thereupon, four policemen arrived and searched his house, but recovered nothing therefrom. Appellant claimed that
he was familiar with one of the policemen, PO 1 Palconit, because he would see him conducting raids in Sitio
Galaxy. Appellant thus averred that he would never sell shabu to POI Palconit because he knew that he is a police
officer.  Ruling of the Regional Trial Court
8

Evidence II.
In a Decision  dated March 5, 2007, the RTC convicted appellant of the crime charged, viz: WHEREFORE, in view
9

of the foregoing, this Court hereby finds accused Edwin Cabrera GUILTY beyond reasonable doubt for violation of
Section 5, Article II of R.A. 9165 and in the absence of any mitigating and aggravating circumstances, he is hereby
sentenced to suffer the penalty of LIFE IMPRISONMENT and to pay a FINE of FNE HUNDRED THOUSAND
(₱500,000.00) PESOS, together with all the accessory penalties provided for by law. The physical evidence is
hereby forfeited in favor of the government to be disposed of in accordance with law.

SO ORDERED. 10

Ruling of the Court of Appeals

On appeal to the CA, appellant questioned the legality of the alleged buybust operation. He pointed to the absence
of a prior surveillance and pre-operation report. He likewise assailed the non-presentation in court of the confidential
informant and of the marked money. Moreover, he alleged a break in the chain of custody by emphasizing that the
confiscation of the specimen happened at 4:30 p.m. of September 30, 2002 while the submission of the same to the
PNP Crime Laboratory for examination was made only at 10:50 p.m. of the same day. Because of these, appellant
averred that his guilt was not proven beyond reasonable doubt. 11

In its Decision  dated June 18, 2009, the CA held that the testimony of PO 1 Palconit and the existence of the
12

dangerous drug seized from appellant more than sufficiently proved the crime charged. PO 1 Palconit positively
identified appellant as the person who sold to him the plastic sachets containing the white crystalline substance
which was confirmed in the laboratory examination as shabu and later brought to and identified in court.

The appellate court likewise upheld the legality of the buy-bust operation. It ratiocinated that prior surveillance is not
required in a buy-bust operation especially where the police operatives are accompanied by their informant during
the entrapment, as in this case. Neither is the submission of a pre-operation report necessary for a conviction under
Section 5, Article II of RA 9165 as long as the elements of the offense are sufficiently established by the
prosecution. Further, there is no need to present in court the confidential informant and the marked money.
Presentation of the confidential informant is only required when there are material inconsistencies in the testimony
of the prosecution witness which is not the case here, since POI Palconit's testimony was found by the trial court to
be credible and convincing. In the same way, presentation of the marked money is not required either by law or
jurisprudence.

The CA did not likewise give credence to appellant's claim of gap in the chain of custody as it found the identity and
integrity of the drugs to have been established and preserved by the prosecution. Besides, the defense admitted the
existence, due execution and genuineness of the chemistry report and the specimen submitted.

The dispositive portion of the CA Decision reads:

WHEREFORE, the Decision dated March 5, 2007 of the Regional Trial Court ("RTC"), 7th Judicial Region, Branch
15, Cebu City, in Criminal Case No. CBU-64615, finding appellant Edwin Cabrera guilty beyond reasonable doubt of
violation of Section 5, Article II of Republic Act No. 9165 is AFFIRMED in all respects.

SO ORDERED. 13

Appellant thus interposes this appeal where he raised as additional assignment of errors the lack of physical
inventory of the seized specimen and the non-taking of its photograph pursuant to Section 21  of the Implementing
14

Rules of RA 9165. 15

Our Ruling

The appeal has no merit.

The Court has gone over the assailed Decision of the CA and found the appellate court's resolution on the issues
raised, as well as its conclusions, to be in order. Hence, the Court finds no need to dwell on them again.

Evidence II.
With regard to the non-compliance by the police officers with Section 21 of the Implementing Rules of RA 9165 as
alleged by appellant in his Supplemental Brief, particularly the lack of physical inventory of the seized specimen and
the non-taking of photograph thereof, the Court notes that appellant raised the same only in this appeal. The
records of the case is bereft of any showing that appellant objected before the RTC regarding the seizure and
safekeeping of the shabu seized from him on account of the failure of the police officers to maintain an unbroken
chain of custody of the said drugs. The only time that appellant questioned the chain of custody was before the CA
but not on the ground of lack of physical inventory or non-taking of photograph, but on the alleged gap between the
time of confiscation of the specimen and the time of its submission to the PNP Crime Laboratory. But even then, it
was already too late in the day for appellant to do so. Appellant should have raised the said issue before the trial
court.  In similar cases, the Court brushed aside the accused's belated contention that the illegal drugs confiscated
16

from his person were inadmissible because the arresting officers failed to comply with Section 21 of RA
9165.  "Whatever justifiable grounds may excuse the police officers from literally complying with Section 21 will
17

remain unknown, because [appellant] did not question during trial the safekeeping of the items seized from
him. Objection to evidence cannot be raised for the first time on appeal; when a party desires the court to reject the
evidence offered, he must so state in the form of an objection. Without such objection, he cannot raise the question
for the first time on appeal."  Besides and as already mentioned, the CA had already aptly concluded that the
18

identity of the seized drugs was established by the prosecution and its integrity preserved, viz:

Record show[ s] that after the arrest, PO 1 Palconit immediately marked the sachets of shabu with [appellant's]
initials, requested a laboratory examination of the confiscated substance and himself brought the sachets of shabu
on the same day to the PNP Regional Crime Laboratory. Thus, the identity of the drugs had been duly preserved
and established by the prosecution. Besides, the integrity of the evidence is presumed to be preserved unless there
is a showing of bad faith, ill will or proof that the evidence has been tampered with. [Appellant] bears the burden to
make some showing that the evidence was tampered or meddled with to overcome a presumption of regulaiity in the
handling of exhibits by public officers and a presumption that public officers properly discharged their duties. This is
also bolstered by the defense's admission of the existence, due execution and genuineness of the request for
laboratory examination, the Chemistry Report ai1d specimens submitted. 19

Thus, the Court upholds appellant's conviction for violation of Section 5, Article II of RA 9165 as well as the penalty
imposed upon him. It must, however, be added that appellant is not eligible for parole. 20

WHEREFORE, the appeal is DISMISSED. The assailed June 18, 2009 Decision of the Court of Appeals in CA-G.R.
CEB-CR-H.C. No. 00784 is AFFIRMED with the MODIFICATION that appellant Edwin Cabrera is not eligible for
parole.

Evidence II.
14.) Republic v Gimenez

This is a Petition for Review on Certiorari assailing the Resolutions issued by the Sandiganbayan, in which the
Sandiganbayan deemed petitioner Republic of the Philippines to have waived the filing of its Formal Offer of Evidence and
granted the MTD of respondents Spouses Ignacio Gimenez and Fe Roa Gimenez (Gimenez Spouses) based on demurrer
to evidence.
 The Republic, through the PCGG, instituted a Complaint for Reconveyance, Reversion, Accounting,
Restitution and Damages against the Gimenez Spouses before the Sandiganbayan, to recover . . . ill-
gotten wealth . . . acquired by the said Spouses as dummies, agents,or nominees of Ferdinand and Imelda
Marcos.
 During trial, the Republic presented the following:
o Documentary evidence attesting to the positions held, business interests, income, and pertinent
transactions of the Gimenez Spouses.
o Testimonies of Atty. Tereso Javier, Head of the Sequestered Assets Department of PCGG, and of Danilo
Daniel, Director of the Research and Development Department of PCGG. Witnesses also testified on the
bank accounts and businesses owned or controlled by the Gimenez Spouses.
 The Republic manifested that it was "no longer presenting further evidence." Accordingly, the
Sandiganbayan gave the Republic 30 days to file its formal offer of evidence."
 In the first assailed Resolution, the Sandiganbayan noted that the Republic failed to file its Formal Offer of
Evidence notwithstanding repeated extensions and the lapse of 75 days from the date it terminated its
presentation of evidence. Thus, it declared that the Republic waived the filing of its Formal Offer of
Evidence.
 Ignacio Gimenez filed a MTD on Demurrer to Evidence and argued that the Republic showed no right to
relief as there was no evidence to support its cause of action. 
 On the other hand, Fe Roa Gimenez filed a MTD on the ground of failure to prosecute. Through her own MTD,
she joined Ignacio Gimenez’s demurrer to evidence.
 The Republic filed a MR [of the first assailed Resolution] and to Admit Attached Formal Offer of Evidence.
 In the second assailed Resolution dated, the Sandiganbayan denied the Republic’s MR and granted the
Gimenez Spouses’ MTD. 
 The Republic filed a Motion for Leave to Re-open Proceedings, to File and Admit Attached Supplement to
the Petition for Certiorari. In this Supplement, the Republic argued that the second assailed Resolution
was void for failing to state the facts and the law on which it was based. 
 This Motion was granted, and the Gimenez Spouses were required to file their Comment on the Supplement to
the Petition. Thereafter, the Republic filed its Reply.
 Fe Roa Gimenez filed a Rejoinder which was expunged by this court in a Resolution. Ignacio Gimenez’s Motion
for Leave to File and Admit Attached Rejoinder was denied.
 Hence this petition.

Issue:
 Whether the Sandiganbayan erred in holding that petitioner Republic of the Philippines waived the filing of its
Formal Offer of Evidence and in granting respondents Ignacio Gimenez and Fe Roa Gimenez’s Motion to Dismiss
on demurrer to evidence? - YES.

 [TOPIC ISSUE] Whether petitioner’s evidence is sufficient to entitle it to the relief it seeks after the
Sandiganbayan rested its case?

 Petitioner is required to establish preponderance of evidence.

 In the second assailed Resolution, the Sandiganbayan granted respondents’ Motion to Dismiss based on the lack
of Formal Offer of Evidence of petitioner. At the same time, it observed that the pieces of documentary evidence
presented by petitioner were mostly certified true copies of the original. 
 Petitioner faults the Sandiganbayan for making "a general and sweeping statement that the evidence presented
by petitioner lacked probative value for the reason that they are mainly certified true copies which had not been
testified on by the person who certified 
 Thus, its right to due process was violated when the Sandiganbayan rejected petitioner’s documentary evidence
in the same Resolution which dismissed the case.
 Petitioner argues that: a) respondents unqualifiedly admitted the identity and authenticity of the
documentary evidence presented by petitioner; and b) the documents it presented were public
Evidence II.
 documents, and there was no need for the identification and authentication of the original documentary
exhibits. 
 On the other hand, respondent Ignacio Gimenez argues that petitioner’s documents are not "official
issuances of the Philippine government." They are mostly notarized private documents. Petitioner’s
evidence has no probative value; hence, a dismissal on demurrer to evidence is only proper. Respondent
Fe Roa Gimenez claims that the Sandiganbayan did not err in holding that the majority of petitioner’s
documentary evidence has no probative value, considering that most of these documents are only
photocopies.
 The evidence presented by petitioner before the Sandiganbayan deserves better treatment.
 For instance, the nature and classification of the documents should have been ruled upon. Save for certain cases,
the original document must be presented during trial when the subject of the inquiry is the contents of the
document.
 This is the Best Evidence Rule provided under Rule 130, Section 3 of the Rules of Court:

SEC. 3. Original document must be produced; exceptions.— When the subject of inquiry is the contents of a document,
no evidence shall be admissible other than the original document itself, except in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of
the offeror;
(b) When the original is in the custody or under the control of the party against whom the evidence is offered, and
the latter fails to produce it after reasonable notice;
(c) When the original consists of numerous accounts or other documents which cannot be examined in court
without great loss of time and the fact sought to be established from them is only the general result of the whole;
and
(d) When the original is a public record in the custody of a public officer or is recorded in a public office.

 In case of unavailability of the original document, secondary evidence may be presented133 as provided for under
Sections 5 to 7 of the same Rule. 

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

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

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

 The best evidence rule applies only when the subject of the inquiry is the contents of the document. But even with
respect to documentary evidence, the best evidence rule applies only when the content of such document is the
subject of the inquiry. Where the issue is only as to whether such document was actually executed, or exists, or
on the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and
testimonial evidence is admissible. Any other substitutionary evidence is likewise admissible without need for
accounting for the original.
 Thus, when a document is presented to prove its existence or condition it is offered not as documentary, but as
real, evidence.
 Furthermore, for purposes of presenting these as evidence before courts, documents are classified as either
public or private, as provided for under Rule 132, Section 19.

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

Public documents are:

(a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals,
and public officers, whether of the Philippines, or of a foreign country;
(b) Documents acknowledge before a notary public except last wills and testaments; and
Evidence II.
 (c) Public records, kept in the Philippines, of private documents required by law to be entered therein.

All other writings are private.

 The nature of documents as either public or private determines how the documents may be presented as
evidence in court. A public document, by virtue of its official or sovereign character, or because it has been
acknowledged before a notary public (except a notarial will) or a competent public official with the formalities
required by law, or because it is a public record of a private writing authorized by law, is self-authenticating and
requires no further authentication in order to be presented as evidence in court. In contrast, a private document is
any other writing, deed, or instrument executed by a private person without the intervention of a notary or other
person legally authorized by which some disposition or agreement is proved or set forth. Lacking the official or
sovereign character of a public document, or the solemnities prescribed by law, a private document requires
authentication in the manner allowed by law or the Rules of Court before its acceptance as evidence in court.
 Notably, the Sandiganbayan’s evaluation of the evidence presented by petitioner was cursory. Its main
reason for granting the Motion to Dismiss on Demurrer to Evidence was that there was no evidence to
consider due to petitioner’s failure to file its Formal Offer of Evidence. It brushed off the totality of
evidence on which petitioner built its case.
 Even assuming that no documentary evidence was properly offered, this court finds it clear from the
second assailed Resolution that the Sandiganbayan did not even consider other evidence presented by
petitioner during the 19 years of trial. The Sandiganbayan erred in ignoring petitioner’s testimonial
evidence without any basis or justification. Numerous exhibits were offered as part of the testimonies of
petitioner’s witnesses.
 Petitioner presented both testimonial and documentary evidence that tended to establish a presumption
that respondents acquired ill-gotten wealth during respondent Fe Roa Gimenez’s incumbency as public
officer and which total amount or value was manifestly out of proportion to her and her husband’s
salaries and to their other lawful income or properties.
 Petitioner presented five (5) witnesses, two (2) of which were Atty. Tereso Javier and Director Danilo R.V. Daniel,
both from the PCGG:
 Petitioner presented as witnesses Atty. Tereso Javier, then Head of the Sequestered Assets Department of
PCGG, and Danilo R.V. Daniel, then Director of the Research and Development Department of PCGG, who
testified on the bank accounts and businesses owned and/ or under the control of spouses Gimenezes.
 Several exhibits excluded by the Sandiganbayan were offered as part of petitioner’s testimonial evidence.
 The court cannot arbitrarily disregard evidence especially when resolving a demurrer to evidence which
tests the sufficiency of the plaintiff’s evidence.
 The difference between the admissibility of evidence and the determination of its probative weight is canonical.
 Admissibility of evidence refers to the question of whether or not the circumstance (or evidence) is to [be]
considered at all. 
 On the other hand, the probative value of evidence refers to the question of whether or not it proves an issue.
Thus, a letter may be offered in evidence and admitted as such but its evidentiary weight depends upon the
observance of the rules on evidence. 
 Accordingly, the author of the letter should be presented as witness to provide the other party to the litigation the
opportunity to question him on the contents of the letter. Being mere hearsay evidence, failure to present the
author of the letter renders its contents suspect. As earlier stated, hearsay evidence, whether objected to or not,
has no probative value.
 The Sandiganbayan should have considered Atienza v. Board of Medicine, et al. where this court held that it is
better to admit and consider evidence for determination of its probative value than to outright reject it based on
very rigid and technical grounds.
 Although trial courts are enjoined to observe strict enforcement of the rules of evidence, in connection with
evidence which may appear to be of doubtful relevancy, incompetency, or admissibility, we have held that:
o It is the safest policy to be liberal, not rejecting them on doubtful or technical grounds, but admitting them
unless plainly irrelevant, immaterial or incompetent, for the reason that their rejection places them beyond
the consideration of the court, if they are thereafter found relevant or competent; on the other hand, their
admission, if they turn out later to be irrelevant or incompetent, can easily be remedied by completely
discarding them or ignoring them.
 A liberal application of the Rules is in line with the state’s policy to recover ill-gotten wealth. In case of doubt,
courts should proceed with caution in granting a motion to dismiss based on demurrer to evidence. An order
granting demurrer to evidence is a judgment on the merits. This is because while a demurrer "is an aid or
instrument for the expeditious termination of an action," it specifically "pertains to the merits of the case."

Evidence II.
  To reiterate, demurrer to evidence authorizes a judgment on the merits of the case without the defendant having
to submit evidence on his or her part, as he or she would ordinarily have to do, if plaintiff’s evidence shows that he
or she is not entitled to the relief sought." The order of dismissal must be clearly supported by facts and law since
an order granting demurrer is a judgment on the merits. 
 To erroneously grant a dismissal simply based on the delay to formally offer documentary evidence essentially
deprives one party of due process.

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

People v Gimenez

G.R. No. 174673

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
FE ROA GIMENEZ AND IGNACIO B. GIMENEZ, Respondents.

DECISION

LEONEN, J.:

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

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

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

This is a Petition  for Review on Certiorari assailing the Sandiganbayan Resolutions dated May 25, 2006  and
1 2

September 13, 2006.  The Sandiganbayan deemed petitioner Republic of the Philippines (Republic) to have waived
3

the filing of its Formal Offer of Evidence  and granted the Motion to Dismiss of respondents Spouses Ignacio
4

Gimenez and Fe Roa Gimenez (Gimenez Spouses) based on demurrer to evidence. 5

The Republic, through the Presidential Commission on Good Government (PCGG), instituted a Complaint  for 6

Reconveyance, Reversion, Accounting, Restitution and Damages against the Gimenez Spouses before the
Sandiganbayan.  "The Complaint seeks to recover . . . ill-gotten wealth . . . acquired by [the Gimenez Spouses] as
7

dummies, agents[,] or nominees of former President Ferdinand E. Marcos and Imelda Marcos[.]" 8

During trial, the Republic presented documentary evidence attesting to the positions held, business interests,
income, and pertinent transactions of the Gimenez Spouses.  The Republic presented the testimonies of Atty.
9

Tereso Javier, Head of the Sequestered Assets Department of PCGG, and of Danilo R.V. Daniel, Director of the
Research and Development Department of PCGG.  Witnesses testified on the bank accounts and businesses
10

owned or controlled by the Gimenez Spouses. 11

Evidence II.
On February 27, 2006, the Sandiganbayan denied a motion to recall Danilo R.V. Daniel’s testimony.  The Republic
12

then manifested that it was "no longer presenting further evidence."  Accordingly, the Sandiganbayan gave the
13

Republic 30 days or until March 29, 2006 "to file its formal offer of evidence."14

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

date.16

On April 27, 2006, the Republic moved for an additional 15 days or until May 13, 2006 within which to file its Formal
Offer of Evidence.  This Motion was granted by the Sandiganbayan in a Resolution dated May 8, 2006.  Following
17 18

this, no additional Motion for extension was filed by the Republic.

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

The first assailed Resolution provides:

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

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

Ignacio Gimenez filed a Motion to Dismiss on Demurrer to Evidence dated May 30, 2006.  He argued that the
22

Republic showed no right to relief as there was no evidence to support its cause of action.  Fe Roa Gimenez filed a
23

Motion to Dismiss dated June 13, 2006 on the ground of failure to prosecute.  Through her own Motion to Dismiss,
24

she joined Ignacio Gimenez’s demurrer to evidence. 25

Two days after Fe Roa Gimenez’s filing of the Motion to Dismiss or on June 15, 2006, the Republic filed a Motion for
Reconsideration [of the first assailed Resolution] and to Admit Attached Formal Offer of Evidence.  The pertinent
26

portions of the Republic’s offer of documentary exhibits attached to the Motion are summarized as follows:

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

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

Evidence II.
made by Bankers Trust AG Zurich-Geneve Bank in Switzerland to respondent Fe Roa Gimenez proving that she
maintained a current account with said bank under Account Number 107094.50 and that from July 30, 1984 to
August 30, 1984, she placed a substantial amount on time deposit in several banks, namely, Hypobank,
Luzemburg, Luxemburg, Societe Generale, Paris and Bank of Nova Scotia, London.

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

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

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

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

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

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

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

Exhibit Z is the service record of Fe Roa Gimenez issued by Florino O. Ibanez of the Office of the President which
proves that she worked with the Office of the President from 1966-1986 holding different positions, the last of which
was Presidential Staff Director.1âwphi1

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

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

Exhibits HH and series (HH-1-HH-3) are the Certification dated October 3, 2002 of Lamberto R. Barbin, Officer-in-
Charge, Malacanang Records Office, that the Statement of Assets and Liabilities of spouses Marcoses for the years

Evidence II.
1965 up to 1986 are not among the records on file in said Office except 1965, 1967 and 1969; the Statement of
Assets and Liabilities as of December 31, 1969 and December 31, 1967 of former President Ferdinand Marcos; and
the Sworn Statement of Financial Condition, Assets, Income and Liabilities as of December 31, 1965 of former
President Ferdinand Marcos. These documentary exhibits prove the assets and liabilities of former President
Marcos for the years 1965,1967 and 1969.

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

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

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

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

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

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

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

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

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

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

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

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

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

Exhibits RR, SS, TT and their series prove that spouses Gimenez maintained bank accounts of substantial
amounts and gained control of various corporations.  These are also being offered as part of the testimony of Danilo
1âwphi1

R.V. Daniel.  (Emphasis in the original, citations omitted)

27

In the second assailed Resolution dated September 13, 2006, the Sandiganbayan denied the Republic’s Motion
for Reconsideration and granted the Gimenez Spouses’ Motion to Dismiss.  According to the Sandiganbayan:
28

While it is true that litigation is not a game of technicalities and that the higher ends of substantial justice militate
against dismissal of cases purely on technical grounds, the circumstances of this case show that the ends of justice
will not be served if this Court allows the wanton disregard of the Rules of Court and of the Court’s orders. Rules of
procedure are designed for the proper and prompt disposition of cases. . . .

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

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

The Sandiganbayan also found that the Republic failed to prosecute its case for an unreasonable length of time and
to comply with the court’s rules.  The court also noted that the documentary evidence presented by the Republic
30

consisted mostly of certified true copies.  However, the persons who certified the documents as copies of the
31

original were not presented.  Hence, the evidence lacked probative value.  The dispositive portion of the assailed
32 33

Resolution reads:

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

SO ORDERED.  (Emphasis in the original)

34

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

The Gimenez Spouses were required to comment on the Petition.  This court noted the separate Comments  filed
36 37

by the Gimenez Spouses.  The Republic responded to the Comments through a Consolidated Reply  dated June
38 39

22, 2007.

In the Resolution  dated August 29, 2007, this court required the parties to submit their memoranda.
40 41

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

Evidence II.
On March 2, 2012, the Republic filed a Motion for Leave to Re-open Proceedings, to File and Admit Attached
Supplement to the Petition for Certiorari.  In this Supplement, the Republic argued that the second assailed
43

Resolution dated September 13, 2006 was void for failing to state the facts and the law on which it was based.  This
44

Motion was granted, and the Gimenez Spouses were required to file their Comment on the Supplement to the
Petition.  Thereafter, the Republic filed its Reply.
45 46

Fe Roa Gimenez filed a Rejoinder  dated December 19, 2012 which was expunged by this court in a
47

Resolution  dated January 23, 2013. Ignacio Gimenez’s Motion for Leave to File and Admit Attached
48

Rejoinder  was denied.

49 50

The Republic raised the following issues:

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

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

Whether or not the Sandiganbayan gravely erred in making a sweeping pronouncement that petitioner’s evidence
do not bear any probative value. 51

The issues for consideration of this court are:

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

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

We grant the Petition.

Respondent Ignacio Gimenez pictures petitioner as being confused as to the proper mode of review of the
Sandiganbayan Resolutions. According to him, petitioner claims that the Sandiganbayan committed grave abuse of
discretion.  Hence, petitioner should have filed a petition for certiorari under Rule 65 and not a petition for review
52

under Rule 45 of the Rules of Court.  Nevertheless, the Sandiganbayan did not commit any error, and petitioner has
53

to show that the Sandiganbayan committed grave abuse of discretion amounting to lack of or in excess of
jurisdiction. 54

Observance of the proper procedure before courts, especially before the Sandiganbayan, cannot be stressed
enough. Due process is enshrined in the Constitution, specifically the Bill of Rights.  "Due process [in criminal
55

cases] guarantees the accused a presumption of innocence until the contrary is proved[.]"  "Mere suspicion of guilt
56

should not sway judgment." 57

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

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

Evidence II.
Republic Act No. 1379  provides for the procedure by which forfeiture proceedings may be instituted against public
58

officers or employees who "[have] acquired during his [or her] incumbency an amount of property which is
manifestly out of proportion to his [or her] salary as such public officer or employee and to his [or her] other lawful
income and the income from legitimately acquired property, [which] property shall be presumed prima facie to have
been unlawfully acquired." 59

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

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

In Garcia v. Sandiganbayan, et al.,  this court re-affirmed the doctrine that forfeiture proceedings under Republic Act
61

No. 1379 are civil in nature.  Civil forfeiture proceedings were also differentiated from plunder cases:
62

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

omitted)

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

When a criminal case based on demurrer to evidence is dismissed, the dismissal is equivalent to an acquittal. 65

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

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

Accordingly, a review of a dismissal order of the Sandiganbayan granting an accused’s demurrer to evidence may
be done via the special civil action of certiorari under Rule 65, based on the narrow ground of grave abuse of
discretion amounting to lack or excess of jurisdiction.  (Citation omitted)
67

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

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

II

Petitioner argues that substantial justice requires doing away with the procedural technicalities.  Loss of vital
68

documentary proof warranted extensions to file the Formal Offer of Evidence.  Honest efforts to locate several
69

missing documents resulted in petitioner’s inability to file the pleading within the period granted by the
Sandiganbayan. 70

Respondent Ignacio Gimenez argues that petitioner cannot fault the Sandiganbayan for its incompetence during
trial.  Even if the evidence were formally offered within the prescribed period, PCGG’s evidence still had no
71

probative value.  It is solely petitioner’s fault "that the persons who certified to the photocopies of the originals were
72

Evidence II.
not presented to testify[.]"  It is also misleading to argue that the pieces of documentary evidence presented are
73

public documents.  "The documents are not public in the sense that these are official issuances of the Philippine
74

government."  "The bulk consists mainly of notarized, private documents that have simply been certified true and
75

faithful."76

According to respondent Fe Roa Gimenez, petitioner tries to excuse its non-filing of the Formal Offer of Evidence
within the prescribed period by raising its efforts to locate the 66 missing documents.  However, the issue of the
77

missing documents was laid to rest during the hearing on November 16, 2004.  The Sandiganbayan gave petitioner
78

until March 2005 to produce the documents; otherwise, these would be excluded.  The testimonies of the witnesses
79

related to the missing documents would also be expunged from the case records. 80

Moreover, respondent Fe Roa Gimenez claims that "[t]he Sandiganbayan did not err when it ruled that the great
bulk of the documentary evidence offered by the PCGG have no probative value."  Aside from the 66 missing
81

documents it failed to present, almost all of petitioner’s pieces of documentary evidence were mere
photocopies.  The few that were certified true copies were not testified on by the persons who certified these
82

documents. 83

Our Rules of Court lays down the procedure for the formal offer of evidence. Testimonial evidence is offered "at the
time [a] witness is called to testify."  Documentary and object evidence, on the other hand, are offered "after the
84

presentation of a party’s testimonial evidence."  Offer of documentary or object evidence is generally done orally
85

unless permission is given by the trial court for a written offer of evidence. 86

More importantly, the Rules specifically provides that evidence must be formally offered to be considered by the
court. Evidence not offered is excluded in the determination of the case.  "Failure to make a formal offer within a
87

considerable period of time shall be deemed a waiver to submit it." 88

Rule 132, Section 34 provides:

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

The rule on formal offer of evidence is intertwined with the constitutional guarantee of due process. Parties must be
given the opportunity to review the evidence submitted against them and take the necessary actions to secure their
case.  Hence, any document or object that was marked for identification is not evidence unless it was "formally
89

offered and the opposing counsel [was] given an opportunity to object to it or cross-examine the witness called upon
to prove or identify it." 90

This court explained further the reason for the rule:

The Rules of Court provides that "the court shall consider no evidence which has not been formally offered." A
formal offer is necessary because judges are mandated to rest their findings of facts and their judgment only and
strictly upon the evidence offered by the parties at the trial. Its function is to enable the trial judge to know the
purpose or purposes for which the proponent is presenting the evidence. On the other hand, this allows opposing
parties to examine the evidence and object to its admissibility. Moreover, it facilitates review as the appellate court
will not be required to review documents not previously scrutinized by the trial court.  (Emphasis supplied, citations
91

omitted)

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

Petitioner’s failure to file its written Formal Offer of Evidence of the numerous documentary evidence presented
within the prescribed period is a non-issue. In its first assailed Resolution dated May 25, 2006, the Sandiganbayan
declared that petitioner waived the filing of its Formal Offer of Evidence when it failed to file the pleading on May 13,
2006, the deadline based on the extended period granted by the court. Petitioner was granted several extensions of
time by the Sandiganbayan totalling 75 days from the date petitioner terminated its presentation of evidence.

Evidence II.
Notably, this 75-day period included the original 30-day period. Subsequently, petitioner filed a Motion for
Reconsideration and to Admit Attached Formal Offer of Evidence, and the Formal Offer of Evidence.

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

This court has long acknowledged the policy of the government to recover the assets and properties illegally
acquired or misappropriated by former President Ferdinand E. Marcos, his wife Mrs. Imelda R. Marcos, their close
relatives, subordinates, business associates, dummies, agents or nominees.  Hence, this court has adopted a
93

liberal approach regarding technical rules of procedure in cases involving recovery of ill-gotten wealth:

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

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

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

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

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

Tan v. Lim  arose from two civil Complaints: one for injunction and another for legal redemption, which were heard
96

jointly before the trial court.  The defendant did not file a Formal Offer of Evidence in the injunction case  and
97 98

merely adopted the evidence offered in the legal redemption case.  The trial court held that the defendant’s failure
99

to file his Formal Offer of Evidence in the injunction case rendered the plaintiff’s evidence therein as
uncontroverted.  The Court of Appeals reversed the Decision and was affirmed by this court.  This court ruled that
100 101

while the trial court’s reasoning in its Decision was technically sound, a liberal interpretation was more appropriate
and in line with substantial justice:

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

Evidence II.
procedure should not be applied in a very rigid, technical case as they are devised chiefly to secure and not defeat
substantial justice.

....

The logic of the Court of Appeals is highly persuasive. Indeed, apparently, the trial court was being overly technical
about the nonsubmission of Jose Renato Lim’s formal offer of evidence. This posture not only goes against Section
6, Rule 1 of the Rules of Civil Procedure decreeing a liberal construction of the rules to promote a just, speedy and
inexpensive litigation but ignores the consistent rulings of the Court against utilizing the rules to defeat the ends of
substantial justice. Despite the intervening years, the language of the Court in Manila Railroad Co. vs. Attorney-
General, still remains relevant:

"x x x. The purpose of procedure is not to thwart justice. Its proper aim is to facilitate the application of justice to the
rival claims of contending parties. It was created not to hinder and delay but to facilitate and promote the
administration of justice. It does not constitute the thing itself which courts are always striving to secure to litigants. It
is designed as the means best adapted to obtain that thing. In other words, it is a means to an end. It is the means
by which the powers of the court are made effective in just judgments. When it loses the character of the one and
takes on that of the other the administration of justice becomes incomplete and unsatisfactory and lays itself open to
grave criticism."  (Emphasis supplied, citations omitted)
102

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

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

III

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

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

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

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

[C]omplaint." 107

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

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

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

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

To determine the propriety of granting respondents’ Motion to Dismiss based on Demurrer to Evidence, we review
the nature of demurrer.

Rule 33, Section 1 of the Rules of Court provides:

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

In Oropesa v. Oropesa  where this court affirmed the dismissal of the case on demurrer to evidence due to
111

petitioner’s non-submission of the Formal Offer of Evidence,  demurrer to evidence was defined as:
112

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

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

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

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

What should be resolved in a motion to dismiss based on a demurrer to evidence is whether the plaintiff is entitled
to the relief based on the facts and the law. The evidence contemplated by the rule on demurrer is that which
pertains to the merits of the case, excluding technical aspects such as capacity to sue. . . .  (Emphasis supplied,
115

citation omitted)

Petitioner, in its Supplement to the Petition, argued that the testimonial evidence it had presented and
offered during trial warranted consideration and analysis.  The Sandiganbayan erroneously excluded these
116

testimonies in determining whether to grant the motion to dismiss or not, hence:

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

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

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

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

Petitioner faults the Sandiganbayan for making "a general and sweeping statement that the evidence
presented by petitioner lacked probative value for the reason that they are mainly certified true copies
which had not been testified on by the person who certified [them]."  Thus, its right to due process was
119

violated when the Sandiganbayan rejected petitioner’s documentary evidence in the same Resolution which
dismissed the case. 120

Petitioner argues that: a) respondents unqualifiedly admitted the identity and authenticity of the documentary
evidence presented by petitioner;  and b) the documents it presented were public documents, and there was
121

no need for the identification and authentication of the original documentary exhibits.  Petitioner relies on
122

the Sandiganbayan Order  dated August 6, 2002. The Order reads:

123

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

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

SO ORDERED.  (Emphasis supplied)

124

Petitioner claims that the following exhibits were acquired in relation to the PCGG’s functions prescribed under
Executive Order No. 1, Section 3(b),  and form part of the official records of the PCGG:  "Certifications as to the
125 126

various positions held in Government by Fe Roa-Gimenez, her salaries and compensation during her stint as a
public officer, the BIR Income Tax Returns and Statement of Assets and Liabilities showing the declared income of
spouses Gimenezes; the Articles of Incorporation of various corporations showing spouses Gimenezes’ interests on
various corporations; and several transactions involving huge amounts of money which prove that they acted as
conduit in the disbursement of government funds." 127

On the other hand, respondent Ignacio Gimenez argues that petitioner’s documents are not "official
issuances of the Philippine government."  They are mostly notarized private documents.  Petitioner’s
128 129

evidence has no probative value; hence, a dismissal on demurrer to evidence is only proper.  Respondent 130

Fe Roa Gimenez claims that the Sandiganbayan did not err in holding that the majority of petitioner’s
documentary evidence has no probative value, considering that most of these documents are only
photocopies. 131

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

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

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

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

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

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

(d) When the original is a public record in the custody of a public officer or is recorded in a public office.

In case of unavailability of the original document, secondary evidence may be presented  as provided for under
133

Sections 5 to 7 of the same Rule:

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

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

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

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

Evidence Rule:

As the afore-quoted provision states, the best evidence rule applies only when the subject of the inquiry is the
contents of the document. The scope of the rule is more extensively explained thus —

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

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

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

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

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

"x x x x x x x x x

"In several Canadian provinces, the principle of unavailability has been abandoned, for certain documents in which
ordinarily no real dispute arised [sic]. This measure is a sensible and progressive one and deserves universal
adoption (post, sec. 1233). Its essential feature is that a copy may be used unconditionally, if the opponent has
been given an opportunity to inspect it."

This Court did not violate the best evidence rule when it considered and weighed in evidence the photocopies and
microfilm copies of the PNs, MCs, and letters submitted by the petitioners to establish the existence of respondent’s
loans. The terms or contents of these documents were never the point of contention in the Petition at bar. It was
respondent’s position that the PNs in the first set (with the exception of PN No. 34534) never existed, while the PNs
in the second set (again, excluding PN No. 34534) were merely executed to cover simulated loan transactions. As
for the MCs representing the proceeds of the loans, the respondent either denied receipt of certain MCs or admitted
receipt of the other MCs but for another purpose. Respondent further admitted the letters she wrote personally or
through her representatives to Mr. Tan of petitioner Citibank acknowledging the loans, except that she claimed that
these letters were just meant to keep up the ruse of the simulated loans. Thus, respondent questioned the
documents as to their existence or execution, or when the former is admitted, as to the purpose for which the
documents were executed, matters which are, undoubtedly, external to the documents, and which had nothing to do
with the contents thereof.

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

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

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

Public documents are:

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

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

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

All other writings are private.

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

SEC. 23. Public documents as evidence.— Documents consisting of entries in public records made in the
performance of a duty by a public officer are prima facie evidence of the facts therein stated. All other public
documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date
of the latter.
Evidence II.
SEC. 24. Proof of official record.— The record of public documents referred to in paragraph (a) of Section 19, when
admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer
having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign
country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul,
or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which
the record is kept, and authenticated by the seal of his office.

SEC. 25. What attestation of copy must state.— Whenever a copy of a document or record is attested for the
purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a
specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if
there be any, or if he be the clerk of a court having a seal, under the seal of such court.

....

SEC. 27. Public record of a private document.— An authorized public record of a private document may be proved
by the original record, or by a copy thereof, attested by the legal custodian of the record, with an appropriate
certificate that such officer has the custody.

....

SEC. 30. Proof of notarial documents.— Every instrument duly acknowledged or proved and certified as provided by
law, may be presented in evidence without further proof, the certificate of acknowledgment being prima facie
evidence of the execution of the instrument or document involved. (Emphasis supplied)

Emphasizing the importance of the correct classification of documents, this court pronounced:

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

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

ruled that:

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

....

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

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

In Salas v. Sta. Mesa Market Corporation,  this court discussed the difference between mere copies of audited
140

financial statements submitted to the Bureau of Internal Revenue (BIR) and Securities and Exchange Commission
(SEC), and certified true copies of audited financial statements obtained or secured from the BIR or the SEC which
are public documents under Rule 132, Section 19(c) of the Revised Rules of Evidence:

The documents in question were supposedly copies of the audited financial statements of SMMC. Financial
statements (which include the balance sheet, income statement and statement of cash flow) show the fiscal
condition of a particular entity within a specified period. The financial statements prepared by external auditors who
are certified public accountants (like those presented by petitioner) are audited financial statements. Financial
statements, whether audited or not, are, as [a] general rule, private documents. However, once financial statements
are filed with a government office pursuant to a provision of law, they become public documents.

Whether a document is public or private is relevant in determining its admissibility as evidence. Public documents
are admissible in evidence even without further proof of their due execution and genuineness. On the other hand,
private documents are inadmissible in evidence unless they are properly authenticated. Section 20, Rule 132 of the
Rules of Court provides:

....

Petitioner and respondents agree that the documents presented as evidence were mere copies of the audited
financial statements submitted to the BIR and SEC. Neither party claimed that copies presented were certified true
copies of audited financial statements obtained or secured from the BIR or the SEC which under Section 19(c), Rule
132 would have been public documents. Thus, the statements presented were private documents. Consequently,
authentication was a precondition to their admissibility in evidence.

During authentication in court, a witness positively testifies that a document presented as evidence is genuine and
has been duly executed or that the document is neither spurious nor counterfeit nor executed by mistake or under
duress. In this case, petitioner merely presented a memorandum attesting to the increase in the corporation’s
monthly market revenue, prepared by a member of his management team. While there is no fixed criterion as to
what constitutes competent evidence to establish the authenticity of a private document, the best proof available
must be presented. The best proof available, in this instance, would have been the testimony of a representative of
SMMC’s external auditor who prepared the audited financial statements. Inasmuch as there was none, the audited
financial statements were never authenticated.  (Emphasis supplied, citations omitted)
141

Indeed, in Republic v. Marcos-Manotoc,  this court held that mere collection of documents by the PCGG does not
142

make such documents public documents per se under Rule 132 of the Rules of Court:

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

Petitioner presented as witness its records officer, Maria Lourdes Magno, who testified that these public and private
documents had been gathered by and taken into the custody of the PCGG in the course of the Commission’s
investigation of the alleged ill-gotten wealth of the Marcoses. However, given the purposes for which these
documents were submitted, Magno was not a credible witness who could testify as to their contents. To reiterate,
"[i]f the writings have subscribing witnesses to them, they must be proved by those witnesses." Witnesses can
testify only to those facts which are of their personal knowledge; that is, those derived from their own perception.
Thus, Magno could only testify as to how she obtained custody of these documents, but not as to the contents of the
documents themselves.
Evidence II.
Neither did petitioner present as witnesses the affiants of these Affidavits or Memoranda submitted to the court.
Basic is the rule that, while affidavits may be considered as public documents if they are acknowledged before a
notary public, these Affidavits are still classified as hearsay evidence. The reason for this rule is that they are not
generally prepared by the affiant, but by another one who uses his or her own language in writing the affiant’s
statements, parts of which may thus be either omitted or misunderstood by the one writing them. Moreover, the
adverse party is deprived of the opportunity to cross-examine the affiants. For this reason, affidavits are generally
rejected for being hearsay, unless the affiants themselves are placed on the witness stand to testify
thereon.  (Citations omitted)
143

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

Even assuming that no documentary evidence was properly offered, this court finds it clear from the
second assailed Resolution that the Sandiganbayan did not even consider other evidence presented by
petitioner during the 19 years of trial. The Sandiganbayan erred in ignoring petitioner’s testimonial evidence
without any basis or justification. Numerous exhibits were offered as part of the testimonies of petitioner’s
witnesses.

Petitioner presented both testimonial and documentary evidence that tended to establish a presumption
that respondents acquired ill-gotten wealth during respondent Fe Roa Gimenez’s incumbency as public
officer and which total amount or value was manifestly out of proportion to her and her husband’s salaries
and to their other lawful income or properties.

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

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

Several exhibits excluded by the Sandiganbayan were offered as part of petitioner’s testimonial evidence:

1) Exhibit "KK"  was offered "for the purpose of proving the assets or properties of the spouses Ignacio B.
145

Gimenez and Fe Roa Gimenez, and as part of the testimony of Tereso Javier." 146

2) Exhibits "KK-1" to "KK-12"  inclusive of sub-markings, were offered "for the purpose of proving the real
147

properties acquired by the spouses Ignacio B. Gimenez and Fe Roa Gimenez, and as part of the testimony
of Tereso Javier." 148

3) Exhibits "KK-15," "KK-18," "KK-20," "KK-27," "KK-30," "KK-32" to "KK-38" and "KK-40"  were offered "for
149

the purpose of proving the corporations in which Ignacio B. Gimenez has interest, and as part of the
testimony of Tereso Javier." 150

4) Exhibit "KK-45"  was offered "for the purpose of proving that the PCGG conducted an investigation of
151

New City Builders, Inc., Transnational Construction Corporation, and OTO Construction and Development
Corporation in relation to Ignacio B. Gimenez and Roberto O. Olanday, and as part of the testimony of
Tereso Javier." 152

5) Exhibits "KK-48" to "KK-50"  were offered "for the purpose of proving that the PCGG formally filed
153

notices of lis pendens with the Registers of Deeds of Taytay, Rizal, Lucena City, Quezon and San Fabian,
Pangasinan over the properties mentioned in said notices in connection with Civil Case No. [0]007 pending
with the Sandiganbayan, and as part of the testimony of Tereso Javier." 154

Evidence II.
 6) Exhibits "KK-51" to "KK-52"  and their sub-markings were offered "for the purpose of proving that the
155

PCGG sequestered the shares of stock in Allied Banking Corporation and Guaranteed Education, Inc. as
stated in the said writ/letter of sequestration, and as part of the testimony of Tereso Javier." 156

7) Exhibits "NN" to "QQ"  and their sub-markings were offered "for the purpose of proving that the PCGG
157

formally requested the Central Bank to freeze the bank accounts of the spouses Igancio [sic] B. Gimenez
and Fe Roa Gimenez and that the Central Bank, acting on said request, issued a memorandum to all
commercial banks relative thereto. They are also being offered as part of the testimony of Tereso Javier." 158

8) Exhibits "RR" to "RR-23"  were offered "for the purpose of proving that Dominador Pangilinan, former
159

Acting President and President of Traders Royal Bank, executed an affidavit on July 24, 1987 wherein he
mentioned Malacanang trust accounts maintained with the Traders Royal Bank the balance of which was
very high, approximately 150-175 million pesos, as indicated in the monthly statements attached to his
affidavit. They are also being offered as part of the testimony of Danilo R.V. Daniel."160

9) Exhibits "SS" to "SS-29"  were offered "for the purpose of proving that Apolinario K. Medina, Executive
161

Vice President of Traders Royal Bank, executed an Affidavit on July 23, 1987 wherein he mentioned about
certain numbered (confidential) trust accounts maintained with the Traders Royal Bank, the deposits to
which ‘were so substantial in amount that (he) suspected that they had been made by President Marcos or
his family. They are also being offered as part of the testimony of Danilo R.V. Daniel." 162

10) Exhibits "TT" to "TT-3"  were offered "for the purpose of proving that Director Danilo R.V. Daniel of the
163

Research and Development Department of the PCGG conducted an investigation on the ill-gotten wealth of
the spouses Ignacio and Fe Roa Gimenez and found that from 1977 to 1982, the total sum of
P75,090,306.42 was withdrawn from the account No. 128 (A/C 76-128) in favor of I.B Gimenez, I.B.
Gimenez Securities and Fe Roa Gimenez. They are also being offered as part of the testimony of Director
Danilo R.V. Daniel." 164

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

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

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

The Sandiganbayan should have considered Atienza v. Board of Medicine, et al.  where this court held that
167

it is better to admit and consider evidence for determination of its probative value than to outright reject it
based on very rigid and technical grounds. 168

Although trial courts are enjoined to observe strict enforcement of the rules of evidence, in connection with
evidence which may appear to be of doubtful relevancy, incompetency, or admissibility, we have held that:

[I]t is the safest policy to be liberal, not rejecting them on doubtful or technical grounds, but admitting them
unless plainly irrelevant, immaterial or incompetent, for the reason that their rejection places them beyond
the consideration of the court, if they are thereafter found relevant or competent; on the other hand, their
admission, if they turn out later to be irrelevant or incompetent, can easily be remedied by completely
discarding them or ignoring them.  (Emphasis supplied, citations omitted)
169

A liberal application of the Rules is in line with the state’s policy to recover ill-gotten wealth. In case of
doubt, courts should proceed with caution in granting a motion to dismiss based on demurrer to evidence.

Evidence II.
An order granting demurrer to evidence is a judgment on the merits.  This is because while a demurrer "is
170

an aid or instrument for the expeditious termination of an action,"  it specifically "pertains to the merits of
171

the case."172

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

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

To reiterate, "[d]emurrer to evidence authorizes a judgment on the merits of the case without the defendant
having to submit evidence on his [or her] part, as he [or she] would ordinarily have to do, if plaintiff’s
evidence shows that he [or she] is not entitled to the relief sought."  The order of dismissal must be clearly
175

supported by facts and law since an order granting demurrer is a judgment on the merits:

As it is settled that an order dismissing a case for insufficient evidence is a judgment on the merits, it is
imperative that it be a reasoned decision clearly and distinctly stating therein the facts and the law on which
it is based.  (Citation omitted)
176

To erroneously grant a dismissal simply based on the delay to formally offer documentary evidence
essentially deprives one party of due process.

IV

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

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

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

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

14. Defendant Fe Roa Gimenez, by herself and/or in unlawful concert with Defendants Ferdinand E. Marcos and
Imelda R. Marcos, taking undue advantage of her position, influence and connection and with grave abuse of power
and authority, in order to prevent disclosure and recovery of assets illegally obtained:

(a) actively participated in the unlawful transfer of millions of dollars of government funds into several
accounts in her name in foreign countries;

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

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

In their Answer, respondents claimed that;

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

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

16. Defendant Ignacio B. Gimenez, taking undue advantage of his relationship, influence, and connection, by
himself and/or in unlawful concert and active collaboration with Defendants Ferdinand E. Marcos and Imelda R.
Marcos, for the purpose of mutually enriching themselves and preventing the disclosure and recovery of assets
illegally obtained, among others:

(a) acted as the dummy, nominee or agent of Defendants Ferdinand E. Marcos and Imelda R. Marcos, in
several corporations such as, the Allied Banking Corporation, Acoje Mining Corporation, Baguio Gold
Mining, Multi National Resources, Philippine Overseas, Inc. and Pioneer Natural Resources;

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

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

To which respondents specifically denied through the following paragraph:

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

In Aquintey v. Spouses Tibong,  this court held that using "specifically" in a general denial does not automatically
183

convert that general denial to a specific one.  The denial in the answer must be so definite as to what is admitted
184

and what is denied:

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

However, the allegations in the pleadings "must be contextualized and interpreted in relation to the rest of the
statements in the pleading."  The denials in respondents’ Answer comply with the modes provided for under the
186

Evidence II.
Rules. We have held that the purpose of requiring specific denials from the defendant is to make the defendant
disclose the "matters alleged in the complaint which he [or she] succinctly intends to disprove at the trial, together
with the matter which he [or she] relied upon to support the denial."  The denials proffered by respondents
187

sufficiently disclosed the matters they wished to disprove and those they would rely upon in making their denials.

To summarize, the Sandiganbayan erred in granting the Motion to Dismiss on demurrer to evidence. It erred in
making a sweeping declaration on the probative value of the documentary evidence offered by petitioner and in
excluding other evidence offered during trial without full evaluation based on reasons grounded in law and/or
jurisprudence.

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

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

This procedure, however, does not apply.

In this case, we principally nullify the assailed Resolutions that denied the admission of the Formal Offer of
Evidence. It only follows that the Order granting demurrer should be denied. This is not the situation contemplated in
Rule 33, Section 1.  Respondents were not able to even comment on the Formal Offer of Evidence. Due process
189

now requires that we remand the case to the Sandiganbayan. Respondents may, at their option and through proper
motion, submit their Comment. The Sandiganbayan should then rule on the admissibility of the documentary and
object evidence covered by the Formal Offer submitted by petitioner. Respondents then may avail themselves of
any remedy thereafter allowed by the Rules.

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

15.) G.R. No. 206590

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs
MYRNA GAYOSO y ARGUELLES, Accused-Appellant

DECISION

DEL CASTILLO, J.:

In criminal prosecutions for the illegal sale and possession of shabu, primordial importance must be given to "the
preservation of the integrity and the evidentiary value of the seized items as they will be used to determine the guilt
or innocence of the accused." 1

This is an appeal from the June 23, 2011 Decision  of the Court of Appeals (CA) in CA-G.R. CR-HC No. 00744 that
2

aft1rmed in toto the April 12, 2007 Decision  of the Regional Trial Court (RTC) of Guiuan, Eastern Samar, Branch 3,
3

Evidence II.
in Criminal Case Nos. 2079 and 2078, finding Myrna Gayoso y Arguelles (appellant) guilty beyond reasonable doubt
of violating Sections 5 (illegal sale of a dangerous drug) and 11 (illegal possession of a dangerous drug), Article II of
Republic Act (RA) No. 9165, respectively, and imposing upon her the penalty of life imprisonment and a fine of
₱500,000.00 for selling shabu, and the indeterminate prison term of eight (8) years and one (1) day, as minimum, to
fourteen (14) years, eight (8) months and one (1) day, as maximum, for possessing 0.53gram of shabu.

Factual Antecedents

The Information in Criminal Case No. 2078 contained the following accusatory allegations against appellant:

That on or about the 24th day of March, 2004, at about 5:30 o'clock in the morning at Jetty, Brgy. Hollywood, Guian,
Eastern Samar, Philippines, within the jurisdiction of this Honorable Court, the abovementioned accused who acted
without the necessary pennit from proper authorities whatsoever, did then and there willfully, unlawfully
and folonioμsly hi:i.ve in her possession, control and custody eleven (11) x x x sachets (containing]
Methamphdamme Hydrochloride commonly known as "shabu" weighing 0.53 [gram], a dangerous drug.

Contrary to law.  4

The Information in Criminal Case No. 2079 charged appellant in the following manner:

That on or about the 24th day of March, 2004, at about 5:00 o'clock in the morning at Jetty, Brgy. Hollywood, Guian,
Eastern Samar, Philippines, within the jurisdiction of this Honorable Court, the above-named accused, who acted
without the necessary permit or authority whatsoever, did then and there willfully, unlawfully and criminally
sell, deliver and dispense one (1) pc. small heat sealed sachet of Methamphetamine Hydrochloride commonly
known as "shabu" weighing 0.06 [gram], a dangerous drug.

Contrary to law. 5

During arraignment, appellant entered a plea of ''not guilty" in both cases. Joint trial then ensued.

Version of the Prosecution

Based on the testimonies of SP03 Victorino de Dios (SP03 De Dios), SP03 Rolando G. Salamida (SP03 Sa1amida),
P02 Rex Isip (P02 Isip), SP04 Josefina Bandoy (SP04 Bandoy), P/Insp. Eleazar Barber, Jr. (PI Barber), PS/Insp.
Benjamin Cruto (PSI Cruto ), and the documentary exhibits, the following facts emerged:

PI Barber of the PNP  Guiuan Police Station directed SP03 De Dios to conduct a surveillance on appellant after
6

receiving several reports that she was peddling prohibited drugs. Three weeks later, SP03 De Dios confirmed that
appellant was indeed engaged in illegal drug activities. PI Barber filed for and was issued a search warrant.
However, prior to implementing the search warrant, PI Barber decided to conduct a "confirmatory test-buy"
designating SP03 De Dios as poseur-buyer and giving him ₱200.00 marked money for the operation.

On March 24, 2004, SP03 De Dios and a civilian asset proceeded to the house of appellant and asked her if they
could buy shabu. The sale was consummated when appellant took the marked money from SP03 De Dios after
giving him a sachet of shabu. SP03 De Dios immediately informed PI Barber by text message about the successful
"confirmatory test-buy". PI Barber and his team of police officers who were positioned 100 meters away n1shed
towards the house of appellant. He also instructed SP03 De Dios and the civilian asset to summon
the Barangay Chairman to witness the search of the house. When he arrived together with a ko,gawad and a media
representative, SP03 Salamida read the search warrant to appellant.

During the search of the house, SP04 Bandoy found a tin foil under the mattress. SP03 De Dios took it from SP04
Bandoy and gave it to SP03 Salamida who found seven sachets of shabu inside, in addition to the four sachets
of shabu found inside the right pocket of the short pants of appellant. The search of the house also revealed several
drug paraphernalia. An inventory of seized items was prepared and the same was signed by
the Barangay Chairman, P02 Isip, SP04 Bandoy, and appellant. The sachets of shabu were brought to the

Evidence II.
Philippine Drug Enforcement Agency (PDEA) then to the PNP Crime Laboratory for qualitative examination. The
results of the examination verified that the seized sachets contained shabu.

Version of Appellant

Appellant denied the charges against her. She claimed that on March 24, 2004, somebody forcibly kicked the front
door of her house and tried to break it open. When she opened the door, PI Barber pushed her aside and told his
companions to move quickly. They went directly to her room; when P02 Isip emerged therefrom seconds later, he
was holding a substance that looked like tawas. SP03 De Dios and SP03 Salamida went in and out of her house.
She maintained that the search warrant was shown to her only after an hour and that the sachets of shabu were
planted. She argued that the police officers fabricated the charges against her since her family had a quarrel with a
police officer named Riza1ina Cuantero regarding the fence separating their houses.

The Ruling of the' Regional Trial Court

The RTC found appellant guilty beyond reasonable doubt of illegal sale and illegal possession of shabu. It declared
that the prosecution ably established the elements of illegal sale and possession of shabu through the testimonies
of its witnesses who arrested appellant after selling a sachet of the illegal drug in a "test-buy operation" and for
possessing 11 sachets of the same drug in her house after enforcing a search watrant immediately thereafter.
Appellant had no evidence that she had license or authority to possess the shabu.

The RTC ruled that the evidence sufficiently established the chain of custody of the sachets of shabu from the time
they were bought from appellant and/or seized from her house, to its turn over to the PDEA and submission to the
PNP Crime Laboratory for examination. The RTC rejected appellant's defense of denial and frame-up in view of her
positive identification by eyewitnesses as the criminal offender.

The RTC therefore sentenced appellant to life imprisonment and to pay a fine of ₱500,000.00 for the illegal sale
of shabu. It also sentenced appellant to suffer the indeterminate prison term of eight (8) years and one (1) day, as
minimum to fourteen (14) years, eight (8) months and one (1) day, as maximum and a fine of ₱300,000 for illegal
possession of shabu.

From this judgment, appellant appealed to the CA. In her Brief,  she assailed the validity of the search warrant
7

claiming that it was not issued by the RTC upon determination of probable cause. She argued that the "'confirmatory
test-buy" conducted by the poseur buyer and the confidential asset was not valid since they forced her to engage in
a drug sale. She maintained that the shabu presented during trial was inadmissible in evidence due to several gaps
in its chain of custody.

The Office of the Solicitor General (OSG) filed its Brief for the Appellee  praying for the affirmance of the appealed
8

Decision. It argued that the evidence on which the RTC based its determination of probable cause was sufficient for
the issuance of the search warrant. It asserted that the "test-buy operation" was an entrapment and not an
inducement. The OSG maintained that the shabu confiscated from appellant was admissible in evidence since the
prosecution established the proper chain of custody.

The Ruling of the Court of Appeals

The CA affirmed in toto the RTC ruling finding appellant guilty of unauthorized sale and possession of shabu. The
CA ruled that all the elements for the sale of shabu were established during the "test-buy operation". It held that the
illegal sale of shabu was proven by SP03 De Dios who participated in said operation as the designated poseur
buyer. His offer to buy shabu with marked money and appellant's acceptance by delivering the illegal drug
consummated the offense. The CA likewise declared that the elements for possession of shabu were present in the
case against appellant. After appellant's arrest for illegal sale of shabu, a valid search resulted in the discovery of 11
sachets of shabu inside her house, which were under her possession and control. She did not have legal authority
to possess the same and failed to overcome the presumption that she consciously knew she was in possession of
the illegal drug discovered in her home.

Evidence II.
The CA noted that the examination by the trial judge established probable cause in issuing the search warrant, The
deposition of P03 Salamida shows that he had personal knowledge of appellant's drug activities, and the same
served as basis for the finding of probable cause for the purpose of issuing a search warrant.

The CA was not swayed by appellant's contention that the "test-buy operation" amounted to instigation since it is
settled jurisprudence that a "decoy solicitation" is not tantamount to inducement or instigation. The CA was also
unconvinced by appellant's claim that the proof against her was inadmissible since the prosecution failed to show
strict compliance with Section 21 of RA 9165 and its implementing rules on the custody and disposition of the
evidence.

Appellant filed a Notice of Appeal.  On July 15, 2013,  the Court notified the parties to file their supplemental briefs.
9 10

However, appellant opted not to file a supplemental brief since she had extensively argued her cause in her
appellants' brief.  For its part, the OSG manifested that it would not file a supplemental brief since its appellee's brief
11

filed in the CA had already discussed and refuted the arguments raised by appellant. 12

Our Ruling

The RTC Issued A Search Warrant After

Finding Probable Case

Appellant contends that there was no probable cause for the issuance of the search warrant. She claims that PI
Barber had no personal knowledge of her alleged drug dealings.

There is no merit in this contention.

Probable cause for a valid search warrant is defined "as such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense has been committed, and that objects sought in
connection with the offense are in the place sought to be searched."  The probable cause must be "determined
13

personally by the judge, after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized."  Probable
14

cause does not mean actual and positive cause, nor does it import absolute certainty. The determination of the
existence of probable cause is concerned only with the question of whether the affiant has reasonable wounds to
believe that the accused committed or is committing the crime charged. 15

Here, the records reveal that the trial court issued the search warrar1t after deposing two witnesses, namely PI
Barber and SP03 Salamida. In particular, the disposition of SP03 Salamida shows that he had personal knowledge
of appellant's drug pushing activities which served as basis for the finding of probable cause for the issuance of the
search warrant. Thus, whether or not PI Barber had personal knowledge of the illegal drug activities committed by
appellant will not adversely affect the findings of probable cause for the purpose of issuance of search warrant.

Confirmatory test-buy solicitation does

not constitute instigation.

Appellant argues that the "confirmatory test-buy" by the police officers was not valid since she was induced by the'
designated poseur buyer, SP03 De Dios, and the confidential informant to sell the seized shabu.

There is no merit in this argument.

In inducement or instigation - the criminal intent originates in the mind of the instigator and the accused is lured into
the commission of the offense charged in order to prosecute him. The instigator practically induces the would-be
accused into the commission of the offense and himself becomes a co-principal. ['This is distinguished from
entrapment wherein] ways and means are resorted to for the purpose of capturing the lawbreaker inflagrante
delicto.
16

The "test-buy" operation conducted by the police officers is not prohibited by law. It does not amount to instigation.
As in this case, the solicitation of drugs from appellant by the poseur buyer merely furnishes evidence of a course of
Evidence II.
conduct.  The police received an intelligence report that appellant habitually deals with shabu. They designated a
17

poseur buyer to confirm the report by engaging in a drug transaction with appellant. There was no proof that the
poseur buyer induced appellant to sell illegal drugs to him.

Notwithstanding the foregoing disquisition, appellant still deserves an acquittal as will be discussed below.

The chain of custody of evidence was not established

Appellant impugns the prosecution's failure to establish the charges of illegal sale and possession of shabu against
her due to the gaps in the chain of custody and the assailable integrity of the evidence in view of non-compliance
with Section 21, Article II of RA 9165.

There is merit in this protestation.

The offense of illegal sale of shabu has the following elements: "(1) the identities of the buyer and the seller, the
object and consideration of the sale; and (2) the delivery of the thing sold and the payment therefor."  On the other
18

hand, the offense of illegal possession of shabu has the following elements: "(l) the accused is in possession of an
item or an object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the
accused freely and consciously possessed said drug."  In the prosecution for illegal sale and possession
19

of shabu, there must be proof that these offenses were actually committed, coupled with the presentation in court of
evidence of corpus delicti. 20

In both illegal sale and illegal possession of [ shabu,] conviction cannot be sustained if there is a persistent doubt on
the identity of said drug. The identity of the [shabu] must be established with moral certainty. Apart from showing
that the elements of possession or sale are present, the fact that the [shabu] illegally possessed and sold x xx is the
same [shabu] offered in court as exhibit must likewise be established with the same degree of certitude as that
needed to sustain a guilty verdict. 21

"The chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the
identity of the evidence are removed." 22

Chain of custody is defined as "duly recorded authorized movements and custody of seized drugs or controlled
chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of
seizure/confiscation to receipt in the forensic laboratory to safekeeping, to presentation in court for
destruction."  In People v. Havana,  the Court expounded on the custodial chain procedure in this wise:
23 24

As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be
preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be.
It would include testimony about every link in the chain, from the moment the item was picked up to the time it is
offered in evidence, in such a way that every person who touched the exhibit would describe how and from whom it
was received, where it was and what happened to it while in the witness' possession, the condition in which it was
received and the condition in which it was delivered to the next link in the chain. These witnesses would then
describe the precautions taken to ensure that there had been no change in the condition of the item and no
opportunity for someone not in the chain to have possession of the same.

While the testimony about a perfect chain is not always the standard because it is almost always impossible to
obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not
distinctive and is not readily identifiable, or when its condition at the time of testing or trial is critical, or when a
witness has failed to observe its uniqueness. The same standard obtains in case the evidence is susceptible of
alteration, tampering, contamination and even substitution and exchange. In other words, the exhibit's level of
susceptibility to fungibility, alteration or tampering -without regard to whether the same is advertent or otherwise not
- dictates the level of strictness in the application of the chain of custody rule.

Thus, as a general rule, four links in the chain of custody of the confiscated item must be established:

Evidence II.
first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending
officer; second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third,
the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and
fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court. 25

Marking is the placing by the arresting officer or the poseur-buyer of his/her initials and signature on the items after
they have been seized. It is the starting point in the custodial link. It is vital that the seized items be marked
immediately since the succeeding handlers thereof will use the markings as reference.  The chain of custody rule
26

also requires that the marking of the seized contraband be done "(l) in the presence of the apprehended violator,
and (2) immediately upon confiscation." 27

In this case, the records do not show that the arresting officers marked the seized items with their initials in the
presence of appellant and immediately upon confiscation. While P02 Isip testified that the seized sachets
of shabu were marked in the police station,  no evidence was presented to show that the marking was
28

accomplished in the presence of appellant. Moreover, the author of the markings on said items was never
identified. None of the police officers admitted placing the markings. There was therefore a complete absence of
evidence to prove authorship of the markings.

While marking of the evidence is allowed in the nearest police station, this contemplates a case of warrantless
searches and seizures.  Here, the police officers secured a search warrant prior to their operation. They therefore
29

had sufficient time and opportunity to prepare for its implementation. However, the police officers failed to mark
immediately the plastic sachets of shabu seized inside appellant's house in spite of an Inventory of Property Seized
that they prepared while still inside the said house. The failure of the arresting officers to comply with the marking of
evidence immediately after confiscation constitutes the first gap in the chain of custody.

The turnover of the seized shabu from the arresting officers to the investigating officer in the police station
constitutes the second link in the chain of custody.  In this regard, the Court takes note that the testimonies of the
1âwphi1

prosecution witnesses failed to identify the person to whom the seized items were turned over at the police
station. While SP03 Salamida was identified as the property custodian of the police station, this does not necessarily
mean that he is also the investigating officer. There is nothing in the records to substantiate this presumption. This
total want of evidence gains importance considering that none of the arresting officers presented as witnesses
identified the shabu presented during trial as the same shabu seized from appellant. Thus, the second link in the
chain of custody is missing.

The transfer of the seized shabu from the investigating officer to the forensic chemist in the crime laboratory is the
third link in the chain of custody. While the seized shabu was turned over by PI Barber to the PDEA, he no longer
had any personal knowledge of the manner it was handled therein. He also did not identify the police officer in
whose custody the seized sachets of shabu were placed at the PDEA. He left it to the responsibility of the PDEA to
forward the seized shabu to the crime laboratory. The request for laboratory examination of the PDEA identifies the
police officer who delivered the seized shabu as a certain SPO1 Asis, but he was not presented to testify that
the shabu delivered to the crime laboratory was the same shabu confiscated from appellant. There is a third break
in the chain of custody.

Nothing also can be gained from the testimony of the forensic chemist PSI Cruto. His testimony is not clear and
positive since he failed to assert that the alleged packs of chemical substance presented for laboratory examination
and tested positive for shabu were the very same substance allegedly recovered from appellant. His testimony was
limited to the result of the examination he conducted and not on the source of the substance.

From the foregoing, it appears that no chain of custody was established at all. What we have here are individual
links with breaks in-between which could not be seamlessly woven or tied together. The so-called links in the chain
of custody show that the seized shabu was not handled properly starting from the actual seizure, to its turnover in
the police station and the PDEA, as well as its transfer to the crime laboratory for examination. The Court therefore
cannot conclude with moral certainty that the shabu confiscated from appellant was the same as that presented for
laboratory examination and then presented in court.

It is indeed desirable that the chain of custody should be perfect and unbroken. In reality however, this rarely
occurs. The legal standard that must therefore be observed "is the preservation of the integrity and the evidentiary
Evidence II.
value of the seized items as they will be used to determine the guilt or innocence of the accused."  Here, the Court
30

finds that the apprehending officers failed to properly preserve the integrity and evidentiary value of the
confiscated shabu. There are just too many breaks and gaps to the effect that a chain of custody could not be
established at all. Failure of the prosecution to offer testimony to establish a substantially complete chain of custody
of the shabu and the inappropriate manner of handling the evidence prior to its offer in court diminishes the
government's chance of successfully prosecuting a drug case. 31

Aside from the failure of the prosecution to establish an unbroken chain of custody, another procedural lapse casts
farther uncertainty on the identity and integrity of the subject shabu. This refers to the non-compliance by the
arresting officers with the most basic procedural safeguards relative to the custody and disposition of the seized
item under Section 21(1), Article II of RA 9165, which reads as follows:

SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of
Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous
drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drug shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the
media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies
of the inventory and be given a copy thereof.

Corollarily, Section 2l(a) of the Implementing Rules and Regulations provides as follows:

Section 2l(a) The apprehending officer/team having initial custody and control of the drug shall, immediately after
seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the
person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a
representative from the media, the Department of Justice (DOJ), and a public official who shall be required to sign
the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall
be conducted at the place where the search warrant is served; or at the nearest office of the apprehending
officer/team, whichever is practicable, in case of warrantless seizures; Provided, farther, that non-compliance with
these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items
are properly preserved by the apprehending officer/team, shall not render void and invalid such seizure of and
custody over said items.

In this case, the apprehending team never conducted a physical inventory of the seized items at the place where the
search warrant was served in the presence of a representative of the Department of Justice, nor did it photograph
the same in the presence of appellant after their initial custody and control of said drug, and after immediately
seizing and confiscating the same. Neither was an explanation offered for such failure. While this directive of rigid
compliance has been tempered in certain cases, "such liberality, as stated in the Implementing Rules and
Regulations can be applied only when the evidentiary value and integrity of the illegal drug are properly
preserved."  Such an exception does not obtain in this case. "Serious uncertainty is generated on the identity of
32

the [shabu] in view of the broken linkages in the chain of custody. [Thus,] the presumption of regularity in the
performance of official duty accorded to the [apprehending officers] by the courts below cannot arise." 33

WHEREFORE, the appeal is GRANTED. The Decision of the Court of Appeals in CA-G.R. CR-HC No. 00744 dated
June 23, 2011 is REVERSED and SET ASIDE. Appellant Myrna Gayoso y Arguelles is hereby ACQUITTED of the
charges, her guilt not having been established beyond reasonable doubt.

The Superintendent for the Correctional Institute for Women is hereby ORDERED to immediately RELEASE the
appellant from custody, unless she is held for another lawful cause

Evidence II.
16.) G.R. No. 231989

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
ROMY LIM y MIRANDA, Accused-Appellant

DECISION

PERALTA, J.:

On appeal is the February 23, 2017 Decision   of the Court of Appeals (CA) in CA-G.R. CR HC No. 01280-MIN,
1

which affirmed the September 24, 2013 Decision  of Regional Trial Court (RTC), Branch 25, Cagayan de Oro City, in
2

Criminal Case Nos. 2010-1073 and 2010-1074, finding accused-appellant Romy Lim y Miranda (Lim) guilty of
violating Sections 11 and 5, respectively, of Article II of Republic Act (R.A.) No. 9165, or the Comprehensive
Dangerous Drugs Act of 2002.

In an Information dated October 21, 2010, Lim was charged with illegal possession of Methamphetamine
Hydrochloride (shabu), committed as follows:

That on or about October 19, 2010, at more or less 10:00 o'clock in the evening, at Cagayan de Oro City,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized
by law to possess or use any dangerous drugs, did then and there, willfully, unlawfully, criminally and knowingly
have in his possession, custody and control one (1) heat-sealed transparent plastic sachet containing
Methamphetamine hydrochloride, locally known as Shabu, a dangerous drug, with a total weight of 0.02 gram,
accused well-knowing that the substance recovered from his possession is a dangerous drug.

Contrary to, and in violation of, Section 11, Article II of Republic Act No. 9165. 3

On even date, Lim, together with his stepson, Eldie Gorres y Nave (Gorres), was also indicted for illegal sale
of shabu, committed as follows:

That on or about October 19, 2010, at more or less 10:00 o'clock in the evening, at Cagayan de Oro City,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating
together and mutually helping one another, without being authorized by law to sell, trade, administer, dispense,
deliver, give away to another, distribute, dispatch in transit or transport any dangerous drugs, did then and there
willfully, unlawfully, criminally and knowingly sell and/or offer for sale, and give away to a PDEA Agent acting as
poseur-buyer One (1) heat-sealed transparent plastic sachet containing Methamphetamine hydrochloride, locally
known as Shabu, a dangerous drug, with a total weight of 0.02 gram, accused knowing the same to be a dangerous
drug, in consideration of Five Hundred Pesos (Php500.00) consisting of one piece five hundred peso bill, with Serial
No. FZ386932, which was previously marked and recorded for the purpose of the buy-bust operation.

Contrary to Section 5, Paragraph 1, Article II of Republic Act No. 9165. 4

In their arraignment, Lim and Gorres pleaded not guilty.   They were detained in the city jail during the joint trial of
5

the cases.6

The prosecution presented Intelligence Officer (IO) 1 Albert Orellan, 101 Nestle Carin, 102 Vincent Orcales, and
Police Senior Inspector (PSI) Charity Caceres. Aside from both accused, Rubenia Gorres testified for the defense.

Version of the Prosecution

Around 8:00 p.m. on October 19, 2010, IO1 Orellan and his teammates were at Regional Office X of the Philippine
Drug Enforcement Agency (PDEA). Based on a report of a confidential informant (CI) that a certain "Romy" has
been engaged in the sale of prohibited drugs in Zone 7, Cabina, Bonbon, Cagayan de Oro City, they were directed
by their Regional Director, Lt. Col. Edwin Layese, to gather for a buy-bust operation. During the briefing, IO2
Evidence II.
Orcales, IO1 Orellan, and IO1 Carin were assigned as the team leader, the arresting officer/back-up/evidence
custodian, and the poseur-buyer, respectively. The team prepared a ₱500.00 bill as buy-bust money (with its serial
number entered in the PDEA blotter), the Coordination Form for the nearest police station, and other related
documents.

Using their service vehicle, the team left the regional office about15 minutes before 10:00 p.m. and arrived in the
target area at 10:00 p.m., more or less. IOI Carin and the CI alighted froin the vehicle near the comer leading to the
house of "Romy," while IO1 Orellan and the other team members disembarked a few meters after and positioned
themselves in the area to observe. IOI Carin and the CI turned at the comer and stopped in front of a house. The CI
knocked at the door and uttered, "ayo, nong Romy." Gorres came out and invited them to enter. Inside, Lim was
sitting on the sofa while watching the television. When the CI introduced IO1 Carin as a shabu buyer, Lim nodded
and told Gorres to get one inside the bedroom. Gorres stood up and did as instructed. After he came out, he handed
a small medicine box to Lim, who then took one piece of heat-sealed transparent plastic of shabu and gave it to IO1
Carin. In turn, IO1 Carin paid him with the buy-bust money.

After examining the plastic sachet, IO1 Carin executed a missed call to IO1 Orellan, which was the pre-arranged
signal. The latter, with the rest of the team members, immediately rushed to Lim's house. When they arrived, IO1
Carin and the CI were standing near the door. They then entered the house because the gate was opened. IO1
Orellan declared that they were PDEA agents and informed Lim and Gorres, who were visibly surprised, of their
arrest for selling dangerous drug. They were ordered to put their hands on their heads and to squat on the floor. IO1
Orellan recited the Miranda rights to them. Thereafter, IO1 Orellan conducted a body search on both. When he
frisked Lim, no deadly weapon was found, but something was bulging in his pocket. IO1 Orellan ordered him to pull
it out. Inside the pocket were the buy-bust money and a transparent rectangular plastic box about 3x4 inches in
size. They could see that it contained a plastic sachet of a white substance. As for Gorres, no weapon or illegal drug
was seized.

IO1 Orellan took into custody the ₱500.00 bill, the plastic box with the plastic sachet of white substance, and a
disposable lighter. 101 Carin turned over to him the plastic sachet that she bought from Lim. While in the house, IO1
Orellan marked the two plastic sachets. Despite exerting efforts to secure the attendance of the representative from
the media and barangay officials, nobody arrived to witness the inventory-taking.

The buy-bust team brought Lim and Gorres to the PDEA Regional Office, with IO1 Orellan in possession of the
seized items. Upon arrival, they "booked" the two accused and prepared the letters requesting for the laboratory
examination on the drug evidence and for the drug test on the arrested suspects as well as the documents for the
filing of the case. Likewise, IO1 Orellan made the Inventory Receipt of the confiscated items. It was not signed by
Lim and Gorres. Also, there was no signature of an elected public official and the representatives of the Department
of Justice (DOJ) and the media as witnesses. Pictures of both accused and the evidence seized were taken.

The day after, IO1 Orellan and IO1 Carin delivered both accused and the drug specimens to Regional Crime
Laboratory Office 10. IO1 Orellan was in possession of the sachets of shabu from the regional office to the crime
lab. PSI Caceres, who was a Forensic Chemist, and Police Officer 2 (P02) Bajas  personally received the letter-
7

requests and the two pieces of heat-sealed transparent plastic sachet containing white crystalline substance. PSI
Caceres got urine samples from Lim and Gorres and conducted screening and confirmatory tests on them. Based
on her examination, only Lim was found positive for the presence of shabu. The result was shown in Chemistry
Report No. DTCRIM-I96 and I97-2010. With respect to the two sachets of white crystalline substance, both were
found to be positive of shabu after a chromatographic examination was conducted by PSI Caceres. Her findings
were reflected in Chemistry Report No. D-228-2010. PSI Caceres, likewise, put her own marking on the cellophane
containing the two sachets of shabu. After that, she gave them to the evidence custodian. As to the buy-bust money,
the arresting team turned it over to the fiscal's office during the inquest.

Version of the Defense

Around 10:00 p.m. on October 19, 2010, Lim and Gorres were in their house in Cabina, Bonbon, Cagayan de Oro
City. Lim was sleeping in the bedroom, while Gorres was watching the television. When the latter heard that
somebody jumped over their gate, he stood up to verify. Before he could reach the door, however, it was already
forced opened by the repeated pulling and kicking of men in civilian clothing. They entered the house, pointed their
firearms at him, instructed him to keep still, boxed his chest, slapped his ears, and handcuffed him. They inquired on
Evidence II.
where the shabu was, but he invoked his innocence. When they asked the whereabouts of "Romy," he answered
that he was sleeping inside the bedroom. So the men went there and kicked the door open. Lim was then surprised
as a gun was pointed at his head. He questioned them on what was it all about, but he was told to keep quiet. The
men let him and Gorres sit on a bench. Lim was apprised of his Miranda rights. Thereafter, the two were brought to
the PDEA Regional Office and the crime laboratory. During the inquest proceedings, Lim admitted, albeit without the
assistance of a counsel, ownership of the two sachets of shabu because he was afraid that the police would
imprison him. Like Gorres, he was not involved in drugs at the time of his arrest. Unlike him, however, he was
previously arrested by the PDEA agents but was acquitted in the case. Both Lim and Gorres acknowledged that
they did not have any quarrel with the PDEA agents and that neither do they have grudges against them or vice-
versa.

Rubenia, Lim's live-in partner and the mother of Gorres, was at her sister's house in Pita, Pasil, Kauswagan the
night when the arrests were made. The following day, she returned home and noticed that the door was opened and
its lock was destroyed. She took pictures of the damage and offered the same as exhibits for the defense, which the
court admitted as part of her testimony.

RTC Ruling

After trial, the R TC handed a guilty verdict on Lim for illegal possession and sale of shabu and acquitted Gorres for
lack of sufficient evidence linking him as a conspirator. The fallo of the September 24, 2013 Decision states:

WHEREFORE, premises considered, this Court finds that:

1. In Criminal Case No. 2010-1073, accused ROMY LIM y MIRANDA is hereby found GUILTY of violating Section
11, Article II of R.A. 9165 and is hereby sentenced to suffer the penalty of imprisonment ranging from twelve [12]
years and one [1] day to thirteen [13] years, and to pay a Fine in the amount of Three Hundred Thousand Pesos
[P300,000.00] without subsidiary imprisonment in case of non-payment of Fine;

2. In Criminal Case No. 2010-1074, accused ROMY LIM y MIRANDA is hereby found GUILTY of violating Section 5,
Article II of R.A. 9165, and is hereby sentenced to suffer the penalty of LIFE IMPRISONMENT and to pay the Fine in
the amount of Five Hundred Thousand Pesos [P500,000.00].

3. In Criminal Case No. 2010-1074, accused ELDIE GORRES y NAVE is hereby ACQUITTED of the offense
charged for failure of the prosecution to prove his guilt beyond reasonable doubt. The Warden of the BJMP having
custody of ELDIE GORRES y Nave, is hereby directed to immediately release him from detention unless he is being
charged of other crimes which will justify his continued incarceration. 
8

With regard to the illegal possession of a sachet of shabu, the RTC held that the weight of evidence favors the
positive testimony of IO1 Orellan over the feeble and uncorroborated denial of Lim. As to the sale of shabu, it ruled
that the prosecution was able to establish the identity of the buyer, the seller, the money paid to the seller, and the
delivery of the shabu. The testimony of IO1 Carin was viewed as simple, straightforward and without any hesitation
or prevarication as she detailed in a credible manner the buy-bust transaction that occurred. Between the two
conflicting versions that are poles apart, the RTC found the prosecution evidence worthy of credence and no reason
to disbelieve in the absence of an iota of malice, ill-will, revenge or resentment preceding and pervading the arrest
of Lim. On the chain of custody of evidence, it was accepted with moral certainty that the PDEA operatives were
able to preserve the integrity and probative value of the seized items.

In so far as Gorres is concerned, the R TC opined that the evidence presented were not strong enough to support
the claim that there was conspiracy between him and Lim because it was insufficiently shown that he knew what the
box contained. It also noted Chemistry Report No. DTCRIM 196 & 197-2010, which indicated that Gorres was
"NEGATIVE" of the presence of any illicit drug based on his urine sample.

CA Ruling

On appeal, the CA affirmed the RTC Decision. It agreed with the finding of the trial court that the prosecution
adequately established all the elements of illegal sale of a dangerous drug as the collective evidence presented

Evidence II.
during the trial showed that a valid buy-bust operation was conducted. Likewise, all the elements of illegal
possession of a dangerous drug was proven. Lim resorted to denial and could not present any proof or justification
that he was fully authorized by law to possess the same. The CA was unconvinced with his contention that the
prosecution failed to prove the identity and integrity of the seized prohibited drugs. For the appellate court, it was
able to demonstrate that the integrity and evidentiary value of the confiscated drugs were not compromised. The
witnesses for the prosecution were able to testify on every link in the chain of custody, establishing the crucial link in
the chain from the time the seized items were first discovered until they were brought for examination and offered in
evidence in court. Anent Lim's defense of denial and frame-up, the CA did not appreciate the same due to lack of
clear and convincing evidence that the police officers were inspired by an improper motive. Instead the presumption
of regularity in the performance of official duty was applied.

Before Us, both Lim and the People manifested that they would no longer file a Supplemental Brief, taking into
account the thorough and substantial discussions of the issues in their respective appeal briefs before the
CA.  Essentially, Lim maintains that the case records are bereft of evidence showing that the buy-bust team followed
9

the procedure mandated in Section 21(1), Article II of R.A. No. 9165.

Our Ruling

The judgment of conviction is reversed and set aside, and Lim should be acquitted based on reasonable doubt.

At the time of the commission of the crimes, the law applicable is R.A. No. 9165.   Section 1(b) of Dangerous Drugs
10

Board Regulation No. 1, Series of 2002, which implements the law, defines chain of custody as -

the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of
dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the
forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of
seized item shall include the identity and signature of the person who held temporary custody of the seized item, the
date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence,
and the final disposition. 11

The chain of custody rule is but a variation of the principle that real evidence must be authenticated prior to its
admission into evidence.   To establish a chain of custody sufficient to make evidence admissible, the proponent
12

needs only to prove a rational basis from which to conclude that the evidence is what the party claims it to be.   In13

other words, in a criminal case, the prosecution must offer sufficient evidence from which the trier of fact
could reasonably believe that an item still is what the government claims it to be.   Specifically in the prosecution of
14

illegal drugs, the well-established federal evidentiary rule in the United States is that when the evidence is not
readily identifiable and is susceptible to alteration by tampering or contamination, courts require a more stringent
foundation entailing a chain of custody of the item with sufficient completeness to render it improbable that the
original item has either been exchanged with another or been contaminated or tampered with.   This was adopted
15

in Mallillin v. People,   where this Court also discussed how, ideally, the chain of custody of seized items should be
16

established:

As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be
preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be.
It would include testimony about every link in the chain, from the moment the item was picked up to the time it is
offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom
it was received, where it was and what happened to it while in the witness' possession, the condition in which it was
received and the condition in which it was delivered to the next link in the chain. These witnesses would then
describe the precautions taken to ensure that there had been no change in the condition of the item and no
opportunity for someone not in the chain to have possession of the same.  17

Thus, the links in the chain of custody that must be established are: (1) the seizure and marking, if practicable, of
the illegal drug recovered from the accused by the apprehending officer; (2) the turnover of the seized illegal drug by
the apprehending officer to the investigating officer; (3) the turnover of the illegal drug by the investigating officer to
the forensic chemist for laboratory examination; and ( 4) the turnover and submission of the illegal drug from the
forensic chemist to the court.  18

Evidence II.
Seizure and marking of the illegal
drug as well as the turnover by the
apprehending officer to the
investigating officer

Section 21(1), Article II of R.A. No. 9165 states:

Sec. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of
Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous
drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the
media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies
of the inventory and be given a copy thereof[.] 19

Supplementing the above-quoted provision, Section 21(a) of the Implementing Rules and Regulations (IRR) of R.A.
No. 9165 mandates:

(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the
media and the Department of Justice (DO.T), and any elected public official who shall be required to sign the copies
of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be
conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of
the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that
noncompliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value
of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such
seizures of and custody over said items.  20

On July 15, 2014, R.A. No. 10640 was approved to amend R.A. No. 9165. Among other modifications, it essentially
incorporated the saving clause contained in the IRR, thus:

(1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and
essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and
confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or
counsel, with an elected public official and a representative of the National Prosecution Service or the media who
shall be required to sign the copies of the inventory and be given a copy thereof: Provided, That the physical
inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest
police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of
warrantless seizures: Provided, finally, That noncompliance of these requirements under justifiable grounds, as long
as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending
officer/team, shall not render void and invalid such seizures and custody over said items.

In her Sponsorship Speech on Senate Bill No. 2273, which eventually became R.A. No. 10640, Senator Grace Poe
admitted that "while Section 21 was enshrined in the Comprehensive Dangerous Drugs Act to safeguard the
integrity of the evidence acquired and prevent planting of evidence, the application of said section resulted in the
ineffectiveness of the government's campaign to stop increasing drug addiction and also, in the conflicting decisions
of the courts."  Specifically, she cited that "compliance with the rule on witnesses during the physical inventory is
21

difficult. For one, media representatives are not always available in all comers of the Philippines, especially in more
remote areas. For another, there were instances where elected barangay officials themselves were involved in the
punishable acts apprehended."  In addition, "[t]he requirement that inventory is required to be done in police station
22

Evidence II.
is also very limiting. Most police stations appeared to be far from locations where accused persons were
apprehended." 23

Similarly, Senator Vicente C. Sotto III manifested that in view of the substantial number of acquittals in drug-related
cases due to the varying interpretations of the prosecutors and the judges on Section 21 of R.A. No. 9165, there is a
need for "certain adjustments so that we can plug the loopholes in our existing law" and "ensure [its] standard
implementation."  In his Co-sponsorship Speech, he noted:
24

Numerous drug trafficking activities can be traced to operations of highly organized and powerful local and
international syndicates. The presence of such syndicates that have the resources and the capability to mount a
counter-assault to apprehending law enforcers makes the requirement of Section 21(a) impracticable for law
enforcers to comply with. It makes the place of seizure extremely unsafe for the proper inventory and photograph of
seized illegal drugs.

xxxx

Section 21(a) of RA 9165 needs to be amended to address the foregoing situation. We did not realize this in 2002
where the safety of the law enforcers and other persons required to be present in the inventory and photography of
seized illegal drugs and the preservation of the very existence of seized illegal drugs itself are threatened by an
immediate retaliatory action of drug syndicates at the place of seizure. The place where the seized drugs may be
inventoried and photographed has to include a location where the seized drugs as well as the persons who are
required to be present during the inventory and photograph are safe and secure from extreme danger.

It is proposed that the physical inventory and taking of photographs of seized illegal drugs be allowed to be
conducted either in the place of seizure or at the nearest police station or office of the apprehending law enforcers.
The proposal will provide effective measures to ensure the integrity of seized illegal drugs since a safe location
makes it more probable for an inventory and photograph of seized illegal drugs to be properly conducted, thereby
reducing the incidents of dismissal of drug cases due to technicalities.

Non-observance of the prescribed procedures should not automatically mean that the seizure or confiscation is
invalid or illegal, as long as the law enforcement officers could justify the same and could prove that the integrity and
the evidentiary value of the seized items are not tainted. This is the effect of the inclusion in the proposal to amend
the phrase "justifiable grounds." There are instances wherein there are no media people or representatives from the
DOJ available and the absence of these witnesses should not automatically invalidate the drug operation
conducted. Even the presence of a public local elected official also is sometimes impossible especially if the elected
official is afraid or scared.
25

We have held that the immediate physical inventory and photograph of the confiscated items at the place of
arrest may be excused in instances when the safety and security of the apprehending officers and the
witnesses required by law or of the items seized are threatened by immediate or extreme danger such as
retaliatory action of those who have the resources and capability to mount a counter-assault.  The present
26

case is not one of those.

Here, IO1 Orellan took into custody the ₱500.00 bill, the plastic box with the plastic sachet of white substance, and a
disposable lighter. IO1 Carin also turned over to him the plastic sachet that she bought from Lim. While in the
house, IO1 Orellan marked the two plastic sachets. IO1 Orellan testified that he immediately conducted the marking
and physical inventory of the two sachets of shabu.  To ensure that .they were not interchanged, he separately
27

marked the item sold by Lim to 101 Carin and the one that he recovered from his possession upon body search as
BB AEO 10-19-10 and AEO-RI 10-19-10, respectively, with both bearing his initial/signature. 28

Evident, however, is the absence of an elected public official and representatives of the DOJ and the media to
witness the physical inventory and photograph of the seized items.   In fact, their signatures do not appear in the
29

Inventory Receipt.

The Court stressed in People v. Vicente Sipin y De Castro:  30

Evidence II.
The prosecution bears the burden of proving a valid cause for noncompliance with the procedure laid down in
Section 21 of R.A. No. 9165, as amended. It has the positive duty to demonstrate observance thereto in such a way
that during the trial proceedings, it must initiate in acknowledging and justifying any perceived deviations from the
requirements of law. Its failure to follow the mandated procedure must be adequately explained, and must be
proven as a fact in accordance with the rules on evidence. It should take note that the rules require that the
apprehending officers do not simply mention a justifiable ground, but also clearly state this ground in their sworn
affidavit, coupled with a statement on the steps they took to preserve the integrity of the seized items. Strict
adherence to Section 21 is required where the quantity of illegal drugs seized is miniscule, since it is highly
susceptible to planting, tampering or alteration of evidence. 31

It must be alleged and proved that the -presence of the three witnesses to the physical inventory and photograph
of the illegal drug seized was not obtained due to reason/s such as:

(1) their attendance was impossible because the place of arrest was a remote area; (2) their safety during
the inventory and photograph of the seized drugs was threatened by an immediate retaliatory action of the
accused or any person/s acting for and in his/her behalf; (3) the elected official themselves were involved in the
punishable acts sought to be apprehended; (4) earnest efforts to secure the presence of a DOJ or media
representative and an elected public official within the period required under Article 125 of the Revised Penal Code
prove futile through no fault of the arresting officers, who face the threat of being charged with arbitrary detention; or
(5) time constraints and urgency of the anti-drug operations, which often rely on tips of confidential assets,
prevented the law enforcers from obtaining the presence of the required witnesses even before the offenders could
escape. 32

Earnest effort to secure the attendance of the necessary witnesses must be proven. People v. Ramos  requires:
33

It is well to note that the absence of these required witnesses does not per se render the confiscated items
inadmissible. However, a justifiable reason for such failure or a showing of any genuine and sufficient effort to
secure the required witnesses under Section 21 of RA 9165 must be adduced. In People v. Umipang, the Court
held that the prosecution must show that earnest efforts were employed in contacting the representatives
enumerated under the law for "a sheer statement that representatives were unavailable without so much as an
explanation on whether serious attempts were employed to look for other representatives, given the circumstances
is to be regarded as a flimsy excuse." Verily, mere statements of unavailability, absent actual serious attempts to
contact the required witnesses are unacceptable as justified grounds for noncompliance. These considerations arise
from the fact that police officers are ordinarily given sufficient time - beginning from the moment they have received
the information about the activities of the accused until the time of his arrest - to prepare for a buy-bust operation
and consequently, make the necessary arrangements beforehand knowing full well that they would have to strictly
comply with the set procedure prescribed in Section 21 of RA 9165. As such, police officers are compelled not only
to state reasons for their non-compliance, but must in fact, also convince the Court that they exerted earnest efforts
to comply with the mandated procedure, and that under the given circumstances, their actions were reasonable.  34

In this case, IO1 Orellan testified that no members of the media and barangay officials arrived at the crime
scene because it was late at night and it was raining, making it unsafe for them to wait at Lim's house.  102 35

Orcales similarly declared that the inventory was made in the PDEA office considering that it was late in the
evening and there were no available media representative and barangay officials despite their effort to
contact them.  He admitted that there are times when they do not inform the barangay officials prior to their
36

operation as they might leak the confidential information.  We are of the view that these justifications are
37

unacceptable as there was no genuine and sufficient attempt to comply with the law.

The testimony of team-leader IO2 Orcales negates any effort on the part of the buy-bust team to secure the
presence of a barangay official during the operation:

ATTY. DEMECILLO:

xx xx

Evidence II.
 Q x x x Before going to the house of the accused, why did you not contact a barangay official to witness the
operation?

A There are reasons why we do not inform a barangay official before our operation, Sir.

Q Why?

A We do not contact them because we do not trust them. They might leak our information.  38

The prosecution likewise failed to explain why they did not secure the presence of a representative from the
Department of Justice (DOJ). While the arresting officer, IO1 Orellan, stated in his Affidavit that they only tried to
coordinate with the barangay officials and the media, the testimonies of the prosecution witnesses failed to show
that they tried to contact a DOJ representative.

The testimonies of the prosecution witnesses also failed to establish the details of an earnest effort to coordinate
with and secure presence of the required witnesses. They also failed to explain why the buy-bust team felt "unsafe"
in waiting for the representatives in Lim's house, considering that the team is composed of at least ten (10)
members, and the two accused were the only persons in the house.

It bears emphasis that the rule that strict adherence to the mandatory requirements of Section 21(1) of R.A. No.
9165, as amended, and its IRR may be excused as long as the integrity and the evidentiary value of the confiscated
items are properly preserved applies not just on arrest and/or seizure by reason of a legitimate buy-bust operation
but also on those lawfully made in air or sea port, detention cell or national penitentiary, checkpoint, moving vehicle,
local or international package/parcel/mail, or those by virtue of a consented search, stop and frisk (Terry search),
search incident to a lawful arrest, or application of plain view doctrine where time is of the essence and the arrest
and/or seizure is/are not planned, arranged or scheduled in advance.

To conclude, judicial notice is taken of the fact that arrests and seizures related to illegal drugs are typically made
without a warrant; hence, subject to inquest proceedings. Relative thereto, Sections 1 (A.1.10) of the Chain of
Custody Implementing Rules and Regulations directs:

A. I. I 0. Any justification or explanation in cases of noncompliance with the requirements of Section 2I (1) of R.A.
No. 9I65, as amended, shall be clearly stated in the sworn statements/affidavits of the apprehending/seizing officers,
as well as the steps taken to preserve the integrity and evidentiary value of the seized/confiscated items.
Certification or record of coordination for operating units other than the PDEA pursuant to Section 86 (a) and (b),
Article IX of the IRR of R.A. No. 9I65 shall be presented. 39

While the above-quoted provision has been the rule, it appears that it has not been practiced in most cases elevated
before Us. Thus, in order to weed out early on from the courts' already congested docket any orchestrated or poorly
built up drug-related cases, the following should henceforth be enforced as a mandatory policy:

1. In the sworn statements/affidavits, the apprehending/seizing officers must state their compliance with the
requirements of Section 21 (1) of R.A. No. 9165, as amended, and its IRR.

2. In case of non-observance of the provision, the apprehending/seizing officers must state the justification or
explanation therefor as well as the steps they have taken in order to preserve the integrity and evidentiary value of
the seized/ confiscated i terns.

3. If there is no justification or explanation expressly declared in the sworn statements or affidavits, the investigating
fiscal must not immediately file the case before the court. Instead, he or she must refer the case for further
preliminary investigation in order to determine the (non) existence of probable cause.

4. If the investigating fiscal filed the case despite such absence, the court may exercise its discretion to either refuse
to issue a commitment order (or warrant of arrest) or dismiss the case outright for lack of probable cause in
accordance with Section 5,  Rule 112, Rules of Court.
40

Evidence II.
WHEREFORE, premises considered, the February 23, 2017 Decision of the Court of Appeals in CA-G.R. CR HC
No. 01280-MIN, which affirmed the September 24, 2013 Decision of Regional Trial Court, Branch 25, Cagayan de
Oro City, in Criminal Cases Nos. 2010-1073 and 2010-1074, finding accused-appellant Romy Lim y Miranda guilty
of violating Sections 11 and 5, respectively, of Article II of Republic Act No. 9165, is REVERSED and SET ASIDE.
Accordingly, accused-appellant Romy Lim y Miranda is ACQUITTED on reasonable doubt, and
is ORDERED IMMEDIATELY RELEASED from detention, unless he is being lawfully held for another cause. Let an
entry of final judgment be issued immediately.

Let a copy of this Decision be furnished the Superintendent of the Davao Prison and Penal Farm, B.E. Dujali, Davao
del Norte, for immediate implementation. The said Director is ORDERED to REPORT to this Court within five (5)
days from receipt of this Decision the action he has taken.

Let copies of this Decision be furnished to the Secretary of the Department of Justice, as well as to the Head/Chief
of the National Prosecution Service, the Office of the Solicitor General, the Public Attorney's Office, the Philippine
National Police, the Philippine Drug Enforcement Agency, the National Bureau of Investigation, and the Integrated
Bar of the Philippines for their information and guidance. Likewise, the Office of the Court Administrator
is DIRECTED to DISSEMINATE copies of this Decision to all trial courts, including the Court of Appeals.

Evidence II.
17.) People v Gumban

G.R. No. 224210, January 23, 2019

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MARYLOU GUMBAN Y CARANAY AND JOEL

CHENG NG, Accused,
MARYLOU GUMBAN Y CARANAY, Accused-Appellant.

DECISION

DEL CASTILLO, J.:

On appeal is the April 24, 2015 Decision1 of the Court of Appeals (CA) in CA-G.R.CR-HC No. 06601
which affirmed the December 3, 2013 Decision2 of the Regional Trial Court (RTC) of Parañaque City,
Branch 259 in Criminal Case No. 12-0901 convicting Marylou Gumban y Caranay (appellant) for
violation of Section 5, Article II of Republic Act (RA) No. 9165, otherwise known as The
Comprehensive Dangerous Drugs Act of 2002.

Antecedent Facts

Appellant, along with Joel Cheng Ng, was charged before the RTC of Parañaque City, Branch 259 with
violation of Section 5, Article II of RA 9165 committed as follows:

That on or about the 31st day of July 2012, in the City of Parañaque, Philippines and within the
jurisdiction of this Honorable Court, the above named accused, conspiring, confederating together
and mutually helping and aiding one another, not being lawfully authorized by law, did then and
there willfully, unlawfully and feloniously sell, trade, administer, dispense, deliver, give away to
another, distribute, dispatch in transit or transport One (1) brown corroborated [sic] box wrapped
with packaging tape with markings Exh A CCD 7/31/2012 to poseur-buyer IO1 Cesar C. Dealagdon
Jr., containing the following, to wit:

A-1 to A 40-Forty (40) white boxes labeled Nalbin Injection 10 mg with marking[s] Exh A-1 CCD
7/31/12 to A-40 CCD 7/31/2012, each containing ten (10) transparent ampoules of colorless liquid
with a net volume of 1.0 ml per ampoule, with the total net volume of 400 ml.

A-41-one (1) yellow plastic bag with marking Exh B CCD 7/31/2012 containing thirty (30) bundles of
blister packs containing three thousand (3000) [sic] pieces of round blue tablets with a total net
weigh of 390 grams.

A-42-0ne (1) yellow plastic bag with marking Exh C CCD 7/31/12 thirty one (31) bundles of blister
packs containing three thousand four (3400) pieces of round blue tablet with a total net weight of
442 grams.

A-43 to A-122 Eighty (80) transparent plastic packs with markings Exh D CCD 7/31/12 to Exh D-79
CCD 7/31/12, respectively, each containing five (5) transparent ampoules of colorless liquid with a
net volume of 5 ml per ampoule, with a total net volume of 2000 ml and when tested were found to
be positive for nalbup[h]ine, Diazepam and Midazolam, all dangerous drug, under RA 9165.

Contrary to law[.]3
The CA summarized the material points of the testimony of the prosecution's principal witness
Intelligence Officer 1 Cesar Dealagdon (IO1 Dealagdon) of the Philippine Drug Enforcement Agency
Regional Office, National Capital Region (PDEA-NCR) as follows:

Evidence II.
x x x At around 8 o'clock in the morning of 31 July 2012, a Confidential Informant (CI) went to the
PDEA-NCR and informed team leader IO2 Leverette Lopez (Lopez) that a certain MARYLOU was
selling illegal drugs in Brgy. BF Homes, Parañaque City. Lopez told Dealagdon to handle the
transaction.

Dealagdon asked the CI to call MARYLOU. The CI x x x called MARYLOU [then] handed the phone to
Dealagdon x x x. MARYLOU assured Dealagdon that she could sell illegal drugs or medicine [worth]
P1,100,000.00. Thereafter, they agreed to meet at Jeek's Restobar, Elsie Gaches corner Kalaw
St., Brgy. BF Homes, Parañaque City.

x x x Lopez conducted a briefing where Dealagdon was designated as the poseur-buyer and IO2
Aldwin Pagaragan (Pagaragan) as the arresting officer. They agreed that the pre-arranged signal to
inform the team that the buy-bust operation had been consummated would be the raising of
Dealagdon's right hand. The evidence custodian provided Dealagdon with two pieces of One
Thousand Peso bills where the latter placed his initials 'CCD' on the upper right portion thereof.
Subsequently, Dealagdon placed it on the top and bottom of the boodle money.

At around 1:30 x x x in the afternoon of even date, the team x x x proceeded to the subject location.
x x x. At 7:00 o'clock in the evening, Dealagdon asked the CI to call MARYLOU to inform her that
they were already at Jeek's Restobar. At approximately 7:30 x x x in the evening, MARYLOU x x x
called the CI to tell him that she was already in the area. She then invited the CI and Dealagdon [to
join her inside her car]. While inside the [vehicle], the CI introduced Dealagdon to MARYLOU who
they later learned was Marylou Gumban y Caranay. MARYLOU, in turn, introduced to them the driver,
Joel.

Posthaste, MARYLOU asked for the agreed amount. Dealagdon replied that he wanted to see the
items first. Joel then told him, 'Andun sa likod puntahan mo lang.' MARYLOU and Dealagdon alighted
from the vehicle and went to the compartment. Upon opening it, Dealagdon saw one brown box
which MARYLOU opened by removing its scotch tape. When he saw that it contained different tablets,
he then gave MARYLOU the money, saying, 'Pakibilang mo na lang.' In a jiff, he raised his right hand.
The team rushed to their location upon seeing the pre-arranged signal. Dealagdon arrested MARYLOU
and recovered from her the buy-bust money while Pagaragan effectuated the arrest of JoeL Since
the crowd was beginning to grow in number, Lopez instructed the team to proceed to the
nearest police station to undertake the markings, listing and taking of photographs of the
subject pieces of evidence.

At the police station, Dealagdon prepared the inventory and marked the pieces of evidence. Pictures
were taken during the inventory. These proceedings were witnessed by two Brgy. Kagawads, namely,
John Carlo Marquez and Alfredo Lazatin as well as JL Asayo, a media representative from TV 5.

After the inventory and marking of the subject pieces of evidence, Dealagdon closed the box and
sealed it with a scotch tape. He brought it to the PDEA office for laboratory examination and upon
arriving thereat, Dealagdon immediately turned over the box containing the suspected dangerous
drugs to the Laboratory Service together with the request for laboratory examination. The specimens
were received by Chemist Jerome Garcia who conducted an examination divulging the following
results:
'FINDINGS:

Qualitative examination conducted on the above-stated specimens gave the following results:

Specimens A-1 to A-40 gave POSITIVE results for the presence of Nalbuphine.

Specimens A-41 and A-42 gave POSITIVE results for the presence of Diazepam.

Specimens A-43 to A-122 gave positive result for the presence of Midazolam.

Evidence II.
 x x x    x x x

CONCLUSION:

Specimens A-1 to A-40 contain Nalbuphine, a dangerous drug. Specimens A-41 and A-

42 contain Diazepam, a dangerous drug under RA 9165.

Specimens A-43 to A-122 contain Midazolam a dangerous drug under R.A 9165.'

When it was the turn of Joel and MARYLOU to prove their innocence, they both waived their right to
present evidence.4
Ruling of the Regional Trial Court

The RTC gave credence to the testimonies of the prosecution witnesses police officers IO1
Dealagdon, IO1 Aldwin Pagarigan and PDEA Chemist Jerome Garcia. It ruled that the elements of the
offense of selling illegal drugs were clearly established; there was substantial compliance with the
requirements of Section 21, Article II of RA 9165; and that the corpus delicti was properly identified
and its integrity and evidentiary value was preserved. With respect to accused Joel Ng, the RTC
found the prosecution's evidence insufficient to pronounce a verdict of conviction. Thus, on December
3, 2013, the RTC rendered its Decision, the decretal portion of which reads:
WHEREFORE, premises considered the Court renders judgment as follows:

1. Accused MARYLOU CARANAY GUMBAN in Criminal Case No. 12-0901 is found GUILTY beyond
reasonable doubt for violation of Section 5, Article II of RA 9165 and is hereby sentenced to suffer
the penalty of life imprisonment and to pay a fine of Php1,000,000.00.

2. Accused JOEL CHENG NG in the same case is hereby ACQUITTED on ground of reasonable doubt.

It appearing that accused MARYLOU CARANAY GUMBAN is detained at the Parañaque City Jail and
considering the penalty imposed, the OIC-Branch Clerk of Court is hereby directed to prepare
the Mittimus for her immediate transfer from the Parañaque City Jail to the Women's Correctional
Institute, Mandaluyong City.

xxxx

Considering that the bulk of the specimens have already been turned over to the PDEA for disposal,
the remaining representative samples of the specimens subject of this case marked as Exhibit
'B' which is ten (10) ampoules of Nalbuphine in the total weight of 26.3 grams, Exhibit 'B-1' which is
one hundred (100) blue Diazepam tablets, Exhibit 'B-2' which is one hundred (100) round blue
Diazepam tablets and Exhibit 'B-3' which is five (5) ampoules of Midazolam in the total weight of
forty-two (42) grams, are forfeited in favor of the government and the OIC-Branch Clerk of Court is
likewise directed to turn over the same with dispatch to the Philippine Drug Enforcement Agency
(PDEA) for proper disposal pursuant to Section 21[, Article II] of RA 9165 and Supreme Court OCA
Circular No. 51-2003.

SO ORDERED.5
Appellant appealed to the CA.

Ruling of the Court of Appeals

The CA gave great respect to the RTC's findings that appellant was caught in flagrante delicto selling
dangerous drugs. It ruled that there was an unbroken chain of custody of the confiscated items since
the prosecution was able to maintain their integrity and evidentiary value. The CA rejected
appellant's allegation of instigation for being contradictory to her defense of denial. Besides, this
defense was only raised on appeal as appellant waived the presentation of her evidence before the
RTC. The CA also sustained the RTC's finding that the buy-bust team members were regularly
Evidence II.
performing their official duty. Thus, in its assailed Decision of April 24, 2015, the CA disposed of
appellant's appeal as follows:
WHEREFORE, the Appeal is hereby DENIED. The Decision dated 3 December 2013 of the Regional
Trial Court of Parañaque City, Branch 259, in Crim[.] Case No. 12-0901, is AFFIRMED.

SO ORDERED.6
Hence this appeal.

Our Ruling

The appeal is meritorious.

Section 21, Article II of RA 9165 provides the mandatory procedural safeguards in buy-bust
operations, thus:
SECTION 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs,
Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/
Paraphernalia and/or Laboratory Equipment. - The PDEA shall take charge and have custody of all
dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as
well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or
surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice (DOJ), and
any elected public official who shall be required to sign the copies of the inventory and be given a
copy thereof:

xxxx
In addition, Section 21(a), Article II of the Implementing Rules and Regulations of RA 9165 reads:
xxxx

(1) The apprehending officer/team having initial custody and control of the drugs shall, immediately
after seizure and confiscation, physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice (DOJ), and
any elected public official who shall be required to sign the copies of the inventory and be given a
copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place
where the search warrant is served; or at the nearest police station or at the nearest office of the
apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided,
further, that noncompliance with these requirements under justifiable grounds, as long as the
integrity and the evidentiary value of the seized items are properly preserved by the apprehending
officer/team, shall not render void and invalid such seizures of and custody over said items;

xxxx
Going over the records, the Court notes that the apprehending officers did not faithfully observe the
foregoing mandatory requirements. While admittedly there was marking, inventory and
photographing of the seized items, all these were done only in the presence of the elected
public officials and media representative. No representative from the Department of
Justice (DOJ) appeared as witness thereto as required by law. 7 In addition, the witnesses
present during the inventory were not given copies thereof,8 another mandatory procedural
safeguard outlined by the law.

Indeed, non-compliance with the procedures thereby delineated and set would not necessarily
invalidate the seizure and custody of the dangerous drugs as long as there were justifiable grounds
Evidence II.
for the non-compliance and the integrity of the corpus delicti was preserved.9 Records of the instant
case reveal that the absence of a DOJ representative during the marking, inventory and
photographing of the seized items was due to the fact that it was already late at night.10 This
explanation, however, was found unjustifiable and unacceptable in People v. Miranda11 and recently
in People v. Lim.12 Moreover, assuming to be true, coordination with the mayor in securing the
attendance of a DOJ representative was not tantamount to a genuine and serious attempt
to secure the presence of the DOJ representative. No follow up was made as regards the
outcome of the alleged coordination; besides, the mayor is not duty-bound to secure the attendance
of a DOJ representative. The duty is vested by law on the apprehending officers. It is significant to
note that the apprehending officers were already enroute to the target area as early as 1:30
p.m. and arrived at 4:00p.m. Thus, they had more than sufficient time to make the
necessary arrangements regarding the presence of a DOJ representative to serve as witness
during the inventory and photography of any illegal item that they might seize from the suspect. This
omission, to our mind, is a clear violation of the procedure provided by law. Strict compliance with
the required witnesses as mandated in the procedure is necessary because of the alleged drug's
unique characteristic rendering it indistinct, not readily identifiable and easily open to tampering,
alteration or substitution either by accident or otherwise.13

In addition, there was an obvious gap in the chain of custody of the seized items.

In People v. Cayas,14 citing Mallillin v. People,15 the Court explained the importance of the chain of

custody of the confiscated drugs as follows:
As a method of authenticating evidence, the chain of custody rule requires that the admission of an
exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the
proponent claims it to be. It would include testimony about every link in the chain, from the moment
the item was picked up to the time it is offered into evidence, in such a way that every person who
touched the exhibit would describe how and from whom it was received, where it was and what
happened to it while in the witness' possession, the condition in which it was received and the
condition in which it was delivered to the next link in the chain. These witnesses would then describe
the precautions taken to ensure that there had been no change in the condition of the item and no
opportunity for someone not in the chain to have possession of the same.

xxxx
"The rule on chain of custody expressly demands the identification of the persons who handle the
confiscated items for the purpose of duly monitoring the authorized movements of the illegal drugs
and/or drug paraphernalia from the time they are seized from the accused until the time they are
presented in court."16

In the present case, appellant raised doubt on the identity of the items confiscated from
her arguing that there were other personalities belonging to a so-called Compliance Team
who touched and examined the drugs as admitted by IO1 Dealagdon but nobody from the
team testified. According to her "needless to state, as the members of the said Compliance
Team touched the illegal drugs, no matter how brief, they were necessary links in the
chain of custody and their testimonies as regards the circumstances of such custody [are]
indispensable in the determination of [her] guilt. It bears stressing that the prosecution did not
bother to provide the names of the members of the said Compliance Team."17 Thus, since the
seized items were left for some time in the custody and possession of the Compliance
Team who failed to describe how and from whom the items were received by them, the
distinct possibility that the items were tampered with, contaminated, substituted or
pilfered could not be ruled out. Substantial gaps in the chain of custody of the seized drugs
would cast serious doubts on the authenticity of the evidence presented in court.
"[A]lthough testimony about a perfect chain does not always have to be the standard because it is
almost always impossible to obtain, an unbroken chain of custody indeed becomes indispensable and
essential when the item of real evidence is a narcotic substance."18

Evidence II.
In view of the failure of the arresting officers to comply with a mandatory requirement in Section 21,
Article II of RA 9165 coupled with the obvious break in the chain of custody of the seized items as
heretofore discussed, a serious doubt arises as to the identity of the seized illegal drugs. There is no
absolute certainty if the seized items were the very same drugs object of the sale, transmitted to the
crime laboratory and eventually presented in court as evidence.

Indeed, appellant's failure to present any evidence for her defense as she waived her right to do so
was inconsequential. The well-entrenched dictum in criminal law is that "the evidence for the
prosecution must stand or fall on its own weight and cannot be allowed to draw strength from the
weakness of the defense."19 If the prosecution cannot, to begin with, establish the guilt of accused
beyond reasonable doubt, the defense is not even required to adduce evidence.20

All told, the totality of the prosecution's evidence presented in this case did not support appellant's
conviction for violation of Section 5, Article II, RA 9165 as the prosecution failed to prove beyond
reasonable doubt the identity of the object of the sale which is an element of the offense.
Consequently, we find no need to discuss the other issues raised by appellant.

WHEREFORE, premises considered, the appeal is GRANTED. The April 24, 2015 Decision of the
Court of Appeals in CA-G.R. CR-HC No. 06601 is REVERSED and SET ASIDE. Appellant Marylou
Gumban y Caranay is hereby ACQUITTED for failure of the prosecution to prove her guilt beyond
reasonable doubt. She is ordered immediately RELEASED from detention unless she is confined for
another lawful cause.

Let a copy of this Decision be FURNISHED the Superintendent of the Correctional Institution for
Women, City of Mandaluyong for immediate implementation and is DIRECTED to make a report to
this Court within five (5) days from receipt of this Decision.

Evidence II.
 18.) G.R. No. 233209, March 11, 2019

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, v. HEROFIL OLARTE Y NAMUAG,

ACCUSED-APPELLANT.

DECISION

GESMUNDO, J.:

The State's bounden duty to keep its people and those who sojourn within its territory safe from
harm includes its obligation to protect their rights from any bureaucratic abuse. Striking a balance
between utilizing sovereign police power and safeguarding mandated civil liberties has plagued
adjudicators worldwide and has invited differing and sometimes divisive opinions. Nonetheless, courts
are called upon to temper any philosophical debates and conflicting interests between law
enforcement and protection of civil rights. This they can accomplish with lucid and objective decisions
imbued with the wisdom of the Constitution and reflecting the majesty of the law and jurisprudence.

The Case

This is an appeal by accused-appellant Herofil N. Olarte (accused-appellant) seeking to reverse the

April 6, 2017 Decision1 of the Court of Appeals (CA)  in CA-G.R. CR-HC No. 01501-MIN which affirmed
the January 27, 2016 Joint Judgment2 of the Regional Trial Court, Cagayan de Oro City, Misamis
Oriental, Branch 21 (RTC),  in Crim. Case Nos. 2014-830 and 2014-831. Accused-appellant was
convicted for violation of Republic Act (RA) No. 95163 which amended Sections 3 and 4 of
Presidential Decree (P.D.) No. 1866,4 and of Section 35, Article V of Republic Act No. 10591.5 The
RTC acquitted  accused-appellant of the charge of using an imitation firearm (.25 caliber pistol) in the
commission of a crime (R.A. No. 10591)  but convicted  him of unlawfully carrying an M61
fragmentation grenade with an M204A2 fuse6 assembly without the necessary license or permit to
possess it (RA. No. 9516).

Antecedents

Accused-appellant was separately charged for illegal or unauthorized possession of a hand grenade
and an unlicensed pistol (later found to be a replica). The relevant portions of the Informations7 are
as follows:

Criminal Case No. 2014-830

That on July 19, 2014, at more or less 1:30 o'clock in the afternoon at LBC Pabayo-Chavez Streets,
Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, without authority of law, permit or license to possess or carry [an] explosive, did
then and there willfully, unlawfully, criminally and knowingly have in his possession, custody and
control, one (1) Fuze M204A2 Grenade without first securing the necessary license or permit to
possess the same from the proper authorities.

Contrary to law.8

Criminal Case No. 2014-831

That on July 19, 2014, at more or less 1:30 o'clock in the afternoon at LBC Pabayo-Chavez Streets,
Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, without authority of law, permit or license to possess or carry [a] firearm, did then
Evidence II.
and there willfully, unlawfully, criminally and knowingly have in his possession, custody and control,
One (1) Caliber .25 Pistol (Replica) without first securing the necessary license or permit to possess
the same from the proper authorities.

Contrary to law.9

Version of the Prosecution

Police Officer 2 Reggie M. Intud (PO2 Intud)  and Police Officer 2 Pablo B. Monilar, Jr. (PO2
Monilar)  were members of Task Force "Boy Solo," a team formed in response to reports that a lone
gunman was believed to be responsible for several robbery incidents at Pabayo and Chavez Streets in
Cagayan de Oro City. On July 19, 2014, at around 1:30 P.M., PO2 Intud and PO2 Monilar were
conducting discreet monitoring operations in the area.10 During their watch, they noticed a man
walking towards a branch of LBC Express, Inc. (LBC), a commercial establishment. His features
resembled "Boy Solo" whose image was shown in closed circuit television (CCTV)  footages of past
robberies in the area.11 As "Boy Solo" was about to enter the establishment, he pulled out a
firearm.12 This prompted PO2 Intud and PO2 Monilar to immediately run towards the suspect.13 "Boy
Solo," however, noticed the police officers running towards him so he ran away.14 "Boy Solo's"
companions – Randy P. Tandoy, Dexter D. Caracho and Rodel B. Rubilla,15 acting as his lookouts, also
fled from their posts. They all boarded a Cugman Liner, a public utility jeepney heading towards the
Cogon Market.16 Eventually, accused-appellant was arrested near Ororama Superstore in Cogon after
a chase by PO2 Intud and PO2 Monilar. His three companions were caught in a follow-up operation.17

During the arrest, PO2 Intud and PO2 Monilar searched accused-appellant's person and recovered
a .25 caliber pistol replica, a fragmentation grenade with an M204A2 fuse assembly, a flathead
screwdriver, and a transparent heat-sealed plastic sachet containing a white crystalline substance
believed to be methamphetamine hydrochloride.18 PO2 Intud then wrapped the grenade with masking
tape and marked it with his initials RMI2.19 Thereafter, the police officers brought accused-appellant
to Police Station 1-Divisoria where the incident was recorded in the police blotter.20 PO2 Intud then
turned over the grenade to the prosecutor but the latter refused to take custody of It. He handed it
to Chief Investigator Senior Police Officer 2 Allan Radaza (SPO2 Radaza) who, in turn, entrusted it to
the PNP Explosive Ordnance Disposal (EOD) Team headed by SPO2 Dennis Allan Poe L.
Tingson (SPO2 Tingson).21 SPO2 Tingson inspected the grenade and identified it as an M61
fragmentation hand grenade with an M204A2 fuse assembly. He issued an acknowledgement
receipt22 and a certification23 to the same."24 Finally, the police officers found out that accused-
appellant had no license or permit to possess the M61 hand grenade as well as the .25 caliber pistol,
though a replica.25

Version of Accused-Appellant

On July 19, 2014, accused-appellant boarded a passenger jeepney bound for Tablon, Cagayan de Oro
City.26 When the jeepney stopped in front of Ororama Superstore, two civilian-dressed persons
suddenly approached. They bear-hugged and handcuffed him, then told him to go with
them.27 Startled, accused-appellant resisted, saying he did nothing wrong.28 He was then brought by
his captors to Police Station 1-Divisoria where his bag was confiscated.29 Afterwards, another person
came to the police station with a grenade and a pistol replica claiming that these were found inside
accused-appellant's bag.30 Accused-appellant was then forced by the police officers to admit to
illegally possessing the grenade and imitation pistol.31

The RTC Ruling

On January 30, 2015, the Hall of Justice of Cagayan de Oro City was razed by a fire which burned all
the records therein including those pertaining to the original information and arraignment of accused-
Evidence II.
appellant, as well as some of the evidence presented by the prosecution.32

On April 27, 2015, accused-appellant was re-arraigned. The prosecution undertook the retaking of
the testimonies and the refiling of judicial affidavits already executed by some of its witnesses, as
part of the efforts to reconstitute the lost records.33

In the course of reconstituting the records, the prosecution moved for the amendment of the
Information in Criminal Case No. 2014-830 (illegal possession of hand grenade) seeking to change
the reflected fuse assembly marking from "M204X2" to "M204A2." This was eventually granted by
the RTC.34

On January 27, 2016, the RTC rendered a joint judgment35 finding accused-appellant guilty beyond
reasonable doubt of illegal possession of a hand grenade, for the following reasons: (a) an accused
may be arrested and searched without warrant when he/she is attempting to commit an
offense;36 and (b) frame-up, denial, and alibi are weak and self-serving defenses which cannot
overcome the affirmative and straightforward allegations of the prosecution's witnesses.37 However, it
dismissed the case of illegal possession of a .25 caliber pistol replica against accused-appellant
because the Information in Criminal Case No. 2014-831 was defective. It only alleged that the pistol
replica was merely possessed and not used in the commission of a crime as contemplated in Section
35, Article V of R.A. No. 10591.38 The dispositive portion of the Joint Judgment reads:

WHEREFORE, premises considered, the charge under Crim. Case No. 2014-831 is DISMISSED.

In Crim. Case No. 2014-830, this Court finds proof beyond reasonable doubt to find the accused
GUILTY. The accused therefore is meted a penalty of imprisonment of Reclusion Perpetua. He is
credited of (sic) the period that he is under preventive detention.

The following are forfeited and confiscated in favor to (sic) the government:

1. One (1) Fuze M204A2 Grenade; and

2. One (1) Caliber .25 Pistol (Replica).

SO ORDERED.39 (italics supplied)

The CA Ruling

On April 6, 2017, the CA rendered a decision40 affirming the ruling in Crim. Case No. 2014-830 of the
RTC, ratiocinating that: (a) accused-appellant never questioned the legality of his arrest until his
appeal;41 (b) accused-appellant was validly arrested and searched without a warrant as he was
caught attempting to commit a robbery, making the hand grenade admissible in evidence as it was
validly obtained;42 (c) all the elements of the offense were adequately proven by the
prosecution;43 (d) the defenses of bare denial or frame-up are invariably viewed by courts with
disfavor for they can easily be concocted;44 (e) it does not matter if the fuse assembly marking on
the grenade, as stated in the information (Criminal Case No. 2014-830), differs from that stated in
the arresting officers' judicial affidavits; the alleged discrepancy being "clearly a clerical error" as
supported by other documentary evidence (July 28, 2014 Certification, Seizure Receipt, and Extract
Blotter), thereby justifying the amendment of the information;45 (f) the identity of the grenade from
the accused-appellant was not compromised even if the marking "RMI2" was not on the same
grenade presented before the RTC; the prosecution adequately explained that the chain of custody
remained unbroken as testified by all witnesses; (g) that the masking tape containing the same
marking had been "removed and/or overlapped" with another strip of masking tape as per the July
28, 2014 Certification;46 and (h) the RTC's assessment of the credibility of a witness is entitled to
great weight and, sometimes, even finality which the appellate courts should not disturb because the
Evidence II.
trial judge had personally heard and observed the demeanor of the witnesses. The decretal portion of
the CA decision reads, thus:

WHEREFORE, the conviction of the accused-appellant for the offense charged in Criminal Case No.
2014-830 in the assailed Joint Judgment dated 27 January 2016 rendered by the Regional Trial
Court, Branch 21 of Cagayan de Oro City is hereby AFFIRMED.

SO ORDERED.47

Hence, this appeal.

In its Resolution,48 dated September 25, 2017, the Court required both parties to file their respective
supplemental briefs, if they so desired.

On December 21, 2017, the Office of the Solicitor General, in its Manifestation and Motion,49 opted
the brief it filed before the CA as its supplemental brief. Accused-appellant, on the other hand, filed
his Manifestation in lieu of Supplemental Brief,50 stating that he is adopting in toto appellant's brief
filed before the CA as it sufficiently and ably discussed the issues in the present case.

In his brief, accused-appellant presented the following arguments:

THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE ARREST OF ACCUSED-APPELLANT WAS
LAWFUL.

THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF THE OFFENSE

CHARGED NOTWITHSTANDING THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.51

Parties' Arguments

Accused-appellant, who adopted his brief before the CA,52 insists that: (a) his arrest was illegal
because PO2 Intud and PO2 Monilar merely assumed that he was "Boy Solo" based on CCTV footages
and that "[o]ne cannot, without a warrant, arrest anyone based on similarities of [p]hysical
attributes;"53 (b) "[a] waiver of an illegal warrantless arrest does not carry with it a waiver of the
inadmissibility of evidence seized during the illegal warrantless arrest;"54 (c) the corpus delicti  is
doubtful because, when the subject hand grenade was presented in court, the marking "RJVII2" was
not found on it and the fuse assembly marking stated in the original information did not match the
grenade's serial number;55 and (d) the RTC should not have allowed the amendment of the original
information to change the fuse assembly marking from "M204X2" to "M204A2" because it "affects
the very identity of the grenade" and, thus, is clearly prejudicial to the accused.56

On the other hand, the prosecution argues that accused-appellant was lawfully arrested and searched
without a warrant because he was caught in the act of pulling out a firearm, even if it turned out to
be a mere replica. Such act, absent any provocation, would pose an imminent danger to the people
in the vicinity.57 The prosecution's witnesses (PO2 Intud, PO2 Monilar, SPO1 Tiongson, and SPO2
Radaza), who have held or in any manner dealt with the hand grenade, clearly testified as to the
manner of its handling and the unbroken chain of custody.58 It has already been clarified that the
discrepancy as to the markings on the grenade's fuse assembly, "M204X2" and "M204A2," in both
the original and amended informations as well as in the judicial affidavits, was merely a clerical error
brought about by a misreading of the handwritten inventory of the confiscated items. This had been
duly corrected with the permission of the RTC to conform to the evidence presented during
trial.59 Accused-appellant's unsubstantiated defenses of denial, frame-up, and alibi are weak and

Evidence II.
have been invariably viewed by the courts with disfavor.60 Lastly, accused-appellant failed to present
any ill motive on the part of the police officers who arrested him. Neither did he file any case against
them for alleged frame-up and torture.61

ISSUES

The issues for the Court's resolution are:

WHETHER THE WARRANTLESS ARREST IS VALID AND THE HAND GRENADE SEIZED FROM ACCUSED-
APPELLANT IS ADMISSIBLE IN EVIDENCE;

WHETHER THE ORIGINAL INFORMATION COULD BE VALIDLY AMENDED BY THE PROSECUTION TO

REFLECT THE PROPER MARKING INSCRIBED ON THE HAND GRENADE'S FUSE ASSEMBLY;

WHETHER THE IDENTITY AND INTEGRITY OF THE CORPUS DELICTI HAVE BEEN COMPROMISED

CAUSING ACCUSED-APPELLANT'S GUILT TO BE TAINTED WITH REASONABLE DOUBT.

THE COURT'S RULING

Legality of the Warrantless Arrest

A person may be validly arrested without warrant, as provided under Section 5, Rule 113 of the
Revised Rules of Criminal Procedure, viz.:

Section 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a
warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;
(b) When an offense has just been committed, and he has probable cause to believe, based on personal
knowledge of facts or circumstances that the person to be arrested has committed it; and 
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place
where he is serving final judgment or is temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another.

In cases falling under paragraph (a) and (b) above, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance
with section 7 of Rule 112. (emphases supplied)

The first instance in Sec. 5 of Rule 113, on which the subject arrest was premised, is known as an in
flagrante delicto arrest where the accused was caught in the act or attempting to
commit, already committing or having committed an offense. For a warrantless arrest of in flagrante
delicto to be effected, two elements must concur: (a) the person to be arrested
must execute an overt act indicating that he has just committed, is actually committing, or is
attempting to commit a crime; and (b) such overt act is done in the presence or within the
view of the arresting officer.62 Failure to comply with the overt act test renders an in flagrante
delicto arrest constitutionally infirm.63

Evidence II.
The concept of in flagrante delicto  arrests should not be confused with warrantless arrests
based on probable cause as contemplated in the second instance of Sec. 5 of Rule 113. In the
latter type of warrantless arrest, an accused may be arrested when there is probable cause which is
discernible by a peace officer or private person that an offense "has just been committed." Here, the
offense had already been consummated but not in the presence of the peace officer or private
person who, nevertheless, should have personal knowledge of facts or circumstances that the person
to be arrested had committed it. More importantly, there is durational immediacy between the
offense that had just been committed and the peace officer or private person's perception or
observation of the accused's presence at the incident or immediate vicinity. Such is why probable
cause is required to justify a warrantless arrest in cases where the peace officer or private
person did not catch or witness the accused in the act of committing an offense.

"Probable cause" (in the context of warrantless arrests) has been understood to mean a reasonable
ground of suspicion supported by circumstances sufficiently strong to warrant a cautious man's
belief that the person accused is guilty of the offense with which he is charged.64 While probable
cause to justify a warrantless arrest is required only in instances where the peace officer or private
person who was present only at the time when the offense was committed believes (based on his/her
immediate perception) that an offense had just been committed, some of its yardsticks for
determination may be of help in ascertaining whether an accused is attempting  to commit an
offense. This is because the probable cause needed to justify a warrantless arrest ordinarily involves
a certain degree of suspicion, in the absence of actual belief of the arresting officers, that the person
to be arrested is probably guilty of committing the offense based on actual facts.65 And such
determination of reasonable suspicion "must be based on commonsense judgments and inferences
about human behavior."66

Under the circumstances, PO2 Intud and PO2 Monilar had a reasonable suspicion to arrest accused-
appellant who was seen to have drawn a gun as he was about to enter LBC. Common sense dictates
that police officers need not wait for a serious crime, such as robbery, to be consummated before
they move in and make the arrest because it will definitely endanger the lives and safety of the
public, as well as their own. This is consistent with the jurisprudential dictum that the obligation to
make an arrest by reason of a crime does not presuppose, as a necessary requisite for the fulfillment
thereof, the indubitable existence of a crime.67 Moreover, even if the firearm drawn turned out to be
a replica, the police officers were not expected to know on sight whether the firearm was genuine or
not, considering they had only a split second to act on any indication of danger. What was necessary
was the presence of reasonably sufficient ground to believe the existence of an act having
the characteristics of a crime; and that the same grounds exist to believe that the person sought
to be detained participated in it.68 As a result of the validity of the accused-appellant's warrantless
arrest, the incidental search and seizure of the items in his possession is also valid "to protect the
arresting officer from being harmed by the person arrested and to prevent the latter from destroying
evidence within reach."69

Additionally, accused-appellant's argument that the CCTV footage cannot be considered as a valid
basis for his arrest fails to persuade. While it is a long-standing rule that reliable information alone
(such as footage from a CCTV recording) is not sufficient to justify a warrantless arrest, the rule only
requires that the accused perform some overt act that would indicate that he has committed, is
actually committing, or is attempting to commit an offense.70 Therefore, it does not matter that
accused-appellant was previously identified only from a CCTV footage supposedly covering his
previous criminal conduct because he was seen by PO2 Intud and PO2 Monilar performing
an overt act of drawing a gun as he was about to enter LBC.

Further, the assessment of the credibility of witnesses is within the province of the trial court by
virtue of its unique position to observe the crucial and often incommunicable evidence of the
witnesses' deportment while testifying, something which is denied to the appellate court because of
the nature and function of its office.71 To be able to rebut a trial court's assessments and conclusions
as to credibility, substantial reasons must be proffered by the accused.72 Relatedly, when it is
Evidence II.
decisive of the guilt or innocence of the accused, the issue of credibility is determined by the
conformity of the conflicting claims and recollections of the witnesses to common experience and to
the observation of mankind as probable under the circumstances.73

Here, accused-appellant failed to rebut with affirmative evidence the testimonies of PO2 Intud and
PO2 Monilar that he was caught in the act of drawing a gun as he was about to enter LBC. He never
substantiated his claim, save for his self-serving account, that he was arrested without any reason.
Moreover, the arresting officers' credibility was reinforced even more with their consistent
corroborating statements under intense cross-examination. This reinforces the oft-repeated principle
that trial courts are in the best position to weigh the evidence presented during trial and to ascertain
the credibility of the police officers who testified.74 Thus, the CA and the RTC properly gave more
weight to the positive testimonies of the prosecution's witnesses over accused-appellant's defenses of
denial and frame-up because these remained consistent even under the crucible of cross-
examination.

At any rate, the illegal arrest of an accused is not sufficient cause for setting aside a valid judgment
rendered upon a sufficient complaint after a trial free from error; and will not even negate the
validity of the conviction of the accused.75 The legality of an arrest affects only the jurisdiction of the
court over the person of the accused.76 Furthermore, "[i]t is much too late in the day to complain
about the warrantless arrest after a valid information had been filed, the accused arraigned, trial
commenced and completed, and a judgment of conviction rendered against him."77 It has been ruled
time and again that an accused is estopped from assailing any irregularity with regard to his arrest if
he fails to raise this issue or to move for the quashal of the information against him on this
ground before his arraignment.78 Besides, only those pieces of evidence obtained after an
unreasonable search and seizure are inadmissible in evidence for any purpose in any proceeding.79

In this case, accused-appellant failed to timely question the illegality of his arrest and to present
evidence (or at least some reasonable explanation) to substantiate his alleged wrongful detention.
This renders the warrantless arrest and the accompanying search valid; thus, affirming the RTC's
jurisdiction over his person and making all the items, confiscated from accused-appellant, admissible
in evidence. Hence, the CA did not err in affirming the RTC's validation of accused-appellant's
warrantless arrest and incidental search.

Validity of the Amended Information

I.
Amendment of am Information

No less than the Constitution guarantees the right of every person accused in a criminal prosecution
to be informed of the nature and cause of accusation against him/her.80 In this regard, every element
constituting the offense must be alleged in the information to enable the accused to suitably prepare
his/her defense.81 This is because an accused is presumed to have no independent knowledge of the
facts that constitute the offense.82 Hence, the right to be informed of the nature and cause of
accusation is not  transgressed if the information sufficiently alleges
facts and omissions constituting an offense that includes the offense established to have been
committed by the accused.83

Moreover, Sec. 14, Rule 110 of the Rules of Court provides that "[a] complaint or information may be
amended, in form or in substance, without leave of court, at any time before the accused enters his
plea[;] [a]fter the plea and during the trial, a formal amendment may only be made with leave of
court and when it can be done without causing prejudice to the rights of the accused."84 As deduced
from the foregoing rule, there are two kinds of amendments to an information:
(a) substantial amendments, and (b) formal amendments.

Evidence II.
To date, there is no precise definition of what constitutes a substantial amendment;85 although it was
held that "it consists of the recital of facts constituting the offense charged and determinative of the
jurisdiction of the court"86—all other matters are merely of form.87 As to formal amendments, the
Court first held in People v. Casey, et al.88 that an amendment is merely formal
and not substantial if: (a) it does not change the nature of the crime alleged therein; (b) it does not
expose the accused to a charge which could call for a higher penalty; (c) it does not affect the
essence of the offense; or (d) it does not cause surprise or deprive the accused of an opportunity to
meet the new averment. Moreover, the following have also been held to be mere formal
amendments, viz: (a) new allegations which relate only to the range of the penalty that the
court might impose in the event of conviction; (b) an amendment which does not charge another
offense different or distinct from that charged in the original one; (c) additional allegations which do
not alter the prosecution's theory of the case so as to cause surprise to the accused and
affect the form of defense he has or will assume; (d) an amendment which does not adversely
affect any substantial right of the accused; and (e) an amendment that merely adds
specifications to eliminate vagueness in the information and not to introduce new and material
facts, and merely states with additional precision  something which is already contained in
the original information and which adds nothing essential for conviction for the crime charged.89

Notwithstanding the contrast between substantial and formal amendments, substantial amendments
to the information are even permissible as long as the requirements of due process—that the
accusation be in due form and the accused be given notice and an opportunity to answer the charge
—are complied with.90 Therefore, the Court will have to determine and explain in the succeeding
discussions whether the amendment to the subject information was formal or substantial and
whether such amendment either complied with or violated the requirements of due process.

II.
Elements of Illegal Possession of Firearms,
Explosives, Ammunitions or Incendiary
Devices

The essential elements in the prosecution for the crime of illegal possession of firearms, which
include explosives, ammunitions or incendiary devices,91 are: (a) the existence of subject firearm,
and (b) the fact that the accused who possessed or owned the same does not have the
corresponding license for it.92 Associated with the essential elements of the crime, the term "corpus
delicti" means the "body or substance of the crime and, in its primary sense, refers to the fact that
the crime has been actually committed."93 Its elements are: (a) that a certain result has been
proved (e.g.,  a man has died); and (b) that some person is criminally responsible for the act.94 In the
crime of illegal possession of firearms, the corpus delicti  is the
accused's lack  of license or permit to possess or carry the firearm, as possession itself is not
prohibited by law.95 To establish the corpus delicti, the prosecution has the burden of proving that
the firearm exists and that the accused who owned or possessed it does not have the
corresponding license or permit to possess or carry the same.96 However, even if the existence of the
firearm must be established, the firearm itself need not be presented as evidence for it may be
established by testimony, even without the presentation of the said firearm.97

III.
Propriety of the Amendments

Before delving into the propriety of amending the original information, the Court clarifies and takes
discretionary98 judicial notice99 of the fact that different models  of detonating fuses used in hand
grenade assembly are available in the market. These detonating fuses include the
following models: M204A1, M204A2, M206A2, M213, M228, and the C12 integral fuse (to date,
there is no known fuse assembly model  denominated as "M204X2").100 It means that the marking
Evidence II.
denominated as "M204A2" on the fuse assembly of the subject grenade does not refer to the serial
number—it pertains to the model number. This was explained by SPO2 Tingson during his cross-
examination101 by accused-appellant's counsel Atty. Arturo B. Jabines, III (Atty. Jabines), viz.:

[Atty. Jabines, III:] Mr. Witness, you testified that you recognize the grenade as the same grenade
received by you at the police station at Divisoria because of the markings RMI2,
is that correct?
[SPO2 Tingson:] Yes.
[Atty. Jabines, III:] And no serial number of the grenade was recorded?
[SPO2 Tingson:] All the unexploded ordnance [have] no serial number, the fuse assembly like
the one mentioned by the police station (sic) that it was a[n] M204A2[;] it is the
fuse assembly marking and not a serial number, (emphasis supplied)

Having settled that the marking "M204A2" on the fuse assembly of the grenade is not a serial
number,  the Court addresses the question: Is the amendment of the hand grenade's model,  as
stated in the original information, substantial?

The Court answers in the negative.

Accused-appellant's bone of contention as to the markings on the hand grenade's fuse assembly is
the discrepancy alleged in both the original and amended informations. Purportedly, this casts doubt
on the source and negates the existence of the contraband. However, it is simply not enough to
invalidate the amended information. A casual appreciation of the allegations in the original and
amended informations immediately shows that accused-appellant had been carrying a hand grenade
without a corresponding license; such effectively covering all the elements of the crime of illegal
possession of an explosive device. It does not matter whether the model of the grenade's fuse
assembly was inaccurately alleged in the original information. The same argument still supports the
conclusion that the questioned amendment does not prejudice accused-appellant's rights; it
does not: (a) charge another offense different or distinct from the charge of illegal possession of an
explosive averred in the original information; (b) alter the prosecution's theory of the case that he
was caught possessing a hand grenade without a license or permit so as to cause him surprise and
affect the form of defense he has or will assume; (c) introduce new and material facts; and (d) add
anything which was essential for conviction. In effect, the assailed amendment which reflected
the correct model of the subject hand grenade merely added precision to the factual
allegations already contained in the original information. Besides, a change of the subject
marking from "M204X2" to "M204A2" is an obvious correction of a clerical error—one
which is visible to the eye or obvious to the understanding;  an error made by a clerk or a
transcriber; or a mistake in copying or writing.102 Accordingly, any amendment as to the discrepancy
in the description of an element alleged in the information is evidentiary in nature and only amounts
to a mere formal amendment.

Even assuming that the model number on the hand grenade is among the elements of illegal
possession of explosives, it may still be amended under the circumstances because accused-
appellant was still afforded due process when he was apprised  in the information that he
was being indicted for illegally possessing a hand grenade; the model number, even the serial
number, being immaterial. The allegations in the original and amended informations sufficiently cover
the element of the contraband's existence as well as accused-appellant's lack of license to possess
the same.

At this juncture, the Court stresses that the truth or falsity of the allegations in the information are

Evidence II.
threshed out during the trial. The matters contained in an information are allegations of ultimate
facts which the prosecution has to prove beyond reasonable doubt to achieve a verdict of conviction.
Conversely, an accused needs to rebut or at least equalize these matters by countervailing evidence
in order to secure an acquittal. An accused cannot be allowed to seek an invalidation of the amended
information, just because the information clarified one of the elements alleged inadvertently
misstated by the prosecution in the original information. Hence, the RTC's act of permitting the
amendment of the subject information, as affirmed by the CA, is permissible.

Admissibility of the Hand Grenade

I. Classifications of Object Evidence

Object evidence is classified into: (a) actual, physical or "autoptic"103 evidence: those which have

a direct relation or part in the fact or incident sought to be proven and those brought to the court for
personal examination by the presiding magistrate; and (b) demonstrative evidence: those
which represent  the actual or physical object (or event in the case of pictures or videos) being
offered to support or draw an inference or to aid in comprehending the verbal testimony of a
witness.104 Further, actual evidence is subdivided into three categories: (a) those that have readily
identifiable marks (unique objects); (b) those that are made readily
identifiable (objects made  unique) and (c) those with no identifying marks (non-unique
objects).105

During the initial stage of evidence gathering, the only readily available types of actual evidence
reasonably obtainable by law enforcers are unique objects and non-unique objects. On one hand,
unique objects either: (a) already exhibit identifiable visual or physical peculiarities such as a
particular paint job or an accidental scratch, dent, cut, chip, disfigurement or stain; or (b) have a
readily distinguishable mark  such as a unit-specific serial number in case of an industrially
manufactured item. On the other hand, non-unique objects such as narcotic substances, industrial
chemicals, and body fluids cannot be distinguished and are not readily identifiable; that is why they
present an inherent problem of fungibility106 or substitutability and contamination which adversely
affects their relevance or probative value. This is the reason why non-unique objects have to be
made unique by law enforcers upon retrieval or confiscation in order for these articles to be
authenticated by a sponsoring witness so that trial and reviewing courts can determine their
relevance or probative value.

II. Authentication of Object Evidence

In its previous rulings, the Court had sought the guidance of U.S. courts in interpreting or explaining
the rational basis underlying this jurisdiction's evidentiary principles. Some provisions of the
Philippine Rules on Evidence (Rules on Evidence) were derived from or bear some semblance to
some provisions of the Federal Rules of Evidence (Federal Rules). In this regard, Rule 902(a) of the
Federal Rules pertaining to authentication and identification provides:

(a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a finding that the item is what the proponent
claims it is.

Admittedly, the practice of testimonial sponsorship of object evidence in the Federal Rules is not
specifically mentioned in the Rules on Evidence. Nothing in the Rules on Evidence deals with the
authentication of object evidence during the trial. Apart from the requirement of formal
offer,107 however, such practice is part and parcel of having an object evidence admitted, because
authenticity is an inherent attribute of relevance—a component of admissibility.108 The obvious reason
is that an object offered in court as evidence but without having any part in the fact or event sought
to be proven by the proponent is irrelevant because it has no "relation to the fact in issue as to
Evidence II.
induce a belief in its existence or nonexistence."109

Relatedly, the Court promulgated the Judicial Affidavit Rule110 which mandates parties to file, not
later than five days before pre-trial or preliminary conference, judicial affidavits executed by their
witnesses which shall take the place of their direct testimonies.111 Here, parties seeking to offer
documentary and/or object evidence are now required to describe, authenticate, and make the same
evidence form part of the witness' judicial affidavit under the said Rule.112 Therefore, as a rule, object
evidence now requires authentication or testimonial sponsorship before it may be admitted or
considered by the court.

Historically, the Court has applied the "chain of custody" rule as a mode of authenticating illegal drug
substances in order to determine its admissibility.113 However, such rule has not yet been extended
to other substances or objects for it is only a variation of the principle that real evidence must be
authenticated prior to its admission into evidence.114 At this point, it becomes necessary to point out
that the degree of fungibility of amorphous objects without an inherent unique characteristic capable
of scientific determination, i.e.,  DNA testing, is higher than stably structured objects or those which
retain their form because the likelihood of tracing the former objects' source is more difficult, if not
impossible. Narcotic substances, for example, are relatively easy to source because they are readily
available in small quantities thereby allowing the buyer to obtain them at lower cost or minimal
effort. It makes these substances highly susceptible to being used by corrupt law enforcers to plant
evidence on the person of a hapless and innocent victim for the purpose of extortion. Such is the
reason why narcotic substances should undergo the tedious process of being authenticated in
accordance with the chain of custody rule.

In this regard, the Court emphasizes that if the proffered evidence is unique, readily identifiable, and
relatively resistant to change, that foundation need only consist of testimony by a witness with
knowledge that the evidence is what the proponent claims;115 otherwise, the chain of custody rule
has to be resorted to and complied with by the proponent to satisfy the evidentiary requirement of
relevancy. And at all times, the source  of amorphous as well as firmly structured objects being
offered as evidence must be tethered to and supported by a testimony. Here, the determination
whether a proper foundation has been laid for the introduction of an exhibit into evidence refits
within the discretion of the trial court; and a higher court reviews a lower court's authentication
ruling in a deferential manner, testing only for mistake of law or a clear abuse of discretion.116 In
other words, the credibility of authenticating witnesses is for the trier of fact to determine.117

In the case at hand, the chain of custody rule does not apply to an undetonated grenade (an object
made unique),  for it is not amorphous and its form is relatively resistant to change. A witness of the
prosecution need only identify the hand grenade, a structured object, based on personal knowledge
that the same contraband or article is what it purports to be—that it came from the person of
accused-appellant. Even assuming arguendo that the chain of custody rule applies to dispel supposed
doubts as to the grenade's existence and source, the integrity and evidentiary value of the explosive
had been sufficiently established by the prosecution. As aptly observed by the CA:

As previously stated, PO2 Intud, SPO2 Radaza and SPO2 Tingson positively testified as to the
integrity and evidentiary value of the grenade presented in court, marked as Exhibit "B-1." PO2 Intud
testified that it is the same grenade confiscated from the accused-appellant at the time of his arrest.
SPO2 Radaza testified that it is the same grenade turned over [to] him by PO2 Intud. SPO2 Tiongson
testified that it is the same grenade turned over to him by SPO2 Radaza. Thus, there is no break in
the chain of custody of the grenade confiscated from the accused-appellant.

As to the absence of the marking "RMI2" which was placed by PO2 Intud on the grenade marked as
Exhibit "B-l," the same does not affect the evidentiary value of said object evidence. Said marking
was placed by PO2 Intud on the grenade before it was turned over to the PNP[-] EOD for
examination, as shown by the Acknowledgement Receipt dated 23 July 2014 prepared by SPO2
Radaza and duly received by SPO2 Tingson. However, after the examination conducted by the
Evidence II.
PNP[-]EOD where it was determined that the grenade had "Safety Pull Ring, Safety Pin, Safety Lever
intact and containing COMP B (Co[m]position B) as Explosive Filler," the masking tape containing the
marking "RMI2" was apparently removed and/or "overlapped" with another masking tape. As such,
the Certification dated 28 July 2014 issued by SPO2 Tingson of the EOD Team no longer reflected the
"RMI2" marking on the grenade. In any event, what is crucial is the testimony of SPO2 Tingson that
the grenade marked as Exhibit "B-l" is the same grenade turned over to him by SPO2 Radaza.118

The above factual finding clearly shows that the source and existence of the subject grenade were
authenticated by the prosecution's witness to be the very same explosive recovered from accused-
appellant. SPO2 Radaza even testified that he saw PO2 Intud write his initials "RMI2" on the masking
tape used to wrap the grenade and that the same initials were covered by another masking
tape.119 This makes accused-appellant's claim, that the apparent absence of the masking tape
wrapping the hand grenade bearing the inscription "RMI2" makes "very doubtful" the corpus
delicti,120 an exercise in futility.

The Court also deems noteworthy that accused-appellant never presented any evidence which
would effectively taint PO2 Intud's or any other prosecution witnesses' credibility with reasonable
doubt. Bare and unsubstantiated allegations of ill motive or impropriety121 have no probative value
and cannot (and will not) take the place of evidence.122 In this instance, the presumption that the
prosecution's witnesses have been regularly performing their official duty should be upheld absent
any clear and convincing evidence of ill motive.123

Conclusion

In fine, the Court finds no reversible error in the CA's decision because: (a) the warrantless arrest as
well as the incidental search on the person of accused-appellant is valid; (b) the amendment of the
original information seeking the correction of a clerical error regarding the model of the illegally
possessed grenade is merely evidentiary in nature and is not substantial to cause the invalidation of
an amended information; and (c) the prosecution's witnesses have sufficiently laid down the
testimonial foundations supporting the existence and confirming the source of the confiscated hand
grenade.

WHEREFORE, in view of the foregoing, the Court DISMISSES the appeal of Herofil N. Olarte

and AFFIRMS the April 6, 2017 Decision of the Court of Appeals in CA-G.R. CR-HC No. 01501-MIN.

Evidence II.
 19.) [ G.R. No. 237850, September 16, 2020 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RAYMOND BUESA Y ALIBUDBUD, ACCUSED-

APPELLANT.

DECISION

PERALTA, C.J.:

For consideration of the Court is the appeal of the Decision1 dated December 7, 2017 of the Court of Appeals (CA)
in CA-G.R. CR-H.C. No. 08929 which affirmed the Decision2 dated December 5, 2016 of the Regional Trial Court
(RTC), Branch 34, Calamba City, Laguna, in Criminal Case Nos. 26604-2016-C (P) and 26605-2016-C (P), finding
accused-appellant Raymond Buesa y Alibudbud guilty beyond reasonable doubt of violating Sections 5 and 11,
Article II of Republic Act (R.A.) No. 9165, or the Comprehensive Dangerous Drugs Act of 2002.

In two (2) separate Informations, Buesa was charged with Illegal Possession and Illegal Sale of
Methamphetamine Hydrochloride (shabu), committed in the following manner:

Criminal Case No. 26604-2016-C:

That on or about April 25, 2016 in Bay, Laguna and within the jurisdiction of this Honorable Court, the above-named
accused without any authority of law, did then and there, willfully, unlawfully and feloniously possess Four (4) heat-
sealed transparent plastic sachet containing Methamphetamine Hydrochloride with a total weight of 0.24 gram, a
dangerous drug, in violation of the aforementioned law.

CONTRARY TO LAW.

Criminal Case No. 26605-2016-C:

That on or about April 25, 2016 in Bay, Laguna and within the jurisdiction of this Honorable Court, the above-named
accused without any authority of law, did then and there, willfully, unlawfully and feloniously sell and deliver to a
police poseur buyer One (1) heat-sealed transparent plastic sachet containing Methamphetamine Hydrochloride
weighing 0.06 gram, a dangerous drug, in violation of the aforementioned law.

CONTRARY TO LAW.3 (Citations omitted)

Upon arraignment, Buesa pleaded not guilty to the charges filed against him. Subsequently, trial on the merits
ensued. During the joint pre-trial, the prosecution presented the testimony of Police Officer 2 (PO2) Jessie Abad
and, upon stipulation, dispensed with the testimony of PO2 Richard Arienda for being merely corroborative to that of
PO2 Abad. For the defense, the lone testimony of Buesa was presented.

It was established by the prosecution that on April 25, 2015, a confidential agent went to the Laguna Police
Provincial Office, Bay Municipal Police, and reported that a certain Raymond Buesa was involved in selling illegal
drugs. PO2 Abad immediately informed PO2 Jose Guzman, Intel Police Non-Commissioned Officer, who relayed
the information to Police Chief Inspector (PCI) Owen L. Banaag. Upon verification of said report, PCI Banaag
ordered a buy-bust operation. During the briefing, PO2 Abad was tasked as the poseur-buyer, while PO2 Arienda
and PO2 Guzman were tasked as back-up member and security perimeter, respectively. Also, the team prepared
the Pre-Operation Report and the Coordination Form, as well as a P500.00 marked money bearing the marking
"JA."4

On-board a pick-up vehicle, the buy-bust team and the confidential agent proceeded to the target area
in Barangay Tagumpay, Bay, Laguna. Upon advice of the agent that their target had transferred location, the team

Evidence II.
proceeded to Marianville Subdivision, Barangay Puypuy, Bay, Laguna instead. Thereat, the confidential agent and
PO2 Abad met Buesa who affirmed that he had a prior arrangement with said agent for the sale of shabu. After
handing over the money to the target, PO2 Abad immediately made the signal by holding the right shoulder of
Buesa. PO2 Arienda and PO2 Guzman responded. Then, PO2 Abad effected Buesa's arrest and conducted a
preventive search which yielded one pouch containing four (4) plastic sachets. Next, the item subject of the
sale was marked as RB-BB, while the items subject of the search were marked as RB-1 to RB-4. After
marking the confiscated items and considering that they were in an accident-prone area, the buy-bust team
proceeded to the police station. At the police station, PO2 Abad conducted an inventory of the confiscated
items in the presence of a media representative, PO2 Arienda and a barangay kagawad. He also took
photographs, prepared the request for laboratory examination, and delivered the same to the crime
laboratory. After examination, the Chemistry Report revealed that the specimen submitted contained
methamphetamine hydrochloride or "shabu," a dangerous drug.5

In his defense, Buesa testified that at 11:00 a.m. of April 25, 2016, he was onboard a borrowed motorcycle and
about to fetch his wife at the public market in Calo, Bay, Laguna, when he was flagged down by four (4) armed
persons. These armed persons asked for his driver's license, but he was only able to give a citation ticket.
Suddenly, they apprehended and handcuffed him, telling him that he was in their watch list. They then brought him
to the police station in Barangay Puypuy where he was interviewed and physically harmed. They also forced him to
admit to a crime involving shabu. At 5:00 p.m., the armed men brought Buesa to Marianville Subdivision where
Buesa saw another person and was told to point to something. When he did not obey the order, one of the armed
men got mad. They then brought Buesa to the municipal hall where he was again investigated. They made him sit
beside a table on which they placed all the items he was previously ordered to point to. Then, they took
photographs. According to Buesa, he is not guilty of the charges against him nor was he informed of the same when
he was arrested. But he did not file any complaint against the persons who apprehended him because he did not
know what to do nor did he have the money to do so.6

On December 5, 2016, the RTC rendered its Decision finding Buesa guilty beyond reasonable doubt of the crimes
charged and disposed as follows:

WHEREFORE, premises considered, the Court finds accused RAYMOND BUESA y ALIBUDBUD GUILTY beyond
reasonable doubt of violating Sections 5 and 11, Article II of Republic Act No. 9165 by selling 0.06 gram of shabu in
a buy-bust operation and for possessing 0.24 gram of shabu [and] is accordingly SENTENCED to serve Life
Imprisonment and to pay a Fine of Five Hundred Thousand Pesos (P500,000.00) for violation of Section 5 in
Criminal Case No. 26605-2016-C (P) and Twelve (12) Years and One (1) Day, as minimum, to Fifteen (15) Years,
as maximum, and to pay a Fine of Three Hundred Thousand Pesos (P300,000.00) for violation of Section 11 in
Criminal Case No. 26604-2016-C (P).

The five (5) transparent plastic sachets containing an aggregate weight of 0.30 gram of Methamphetamine
Hydrochloride are ordered to be transmitted to the Philippine Drug Enforcement Agency (PDEA) for proper
disposition in accordance with law.

SO ORDERED.7

The RTC found that the prosecution duly established all the elements of illegal sale and illegal possession
of shabu. According to the trial court, the candid and credible testimony of the arresting officer, PO2 Abad, leaves no
doubt that Buesa, indeed, sold shabu to PO2 Abad, acting as a poseur-buyer, in the presence of the confidential
agent who introduced them to each other. After consummation of the sale of shabu, and pursuant to the legal buy-
bust operation, PO2 Abad frisked Buesa which yielded a coin purse or a small pouch containing small plastic
sachets of shabu. Thus, between Buesa's bare allegations of denial and frame-up and the prosecution's clear and
straightforward evidence, the trial court found the latter to be more worthy of credence and belief.8

In its Decision dated December 7, 2017, the CA affirmed the RTC ruling. It held that the findings of the trial court,
which are factual in nature and which involve the credibility of witnesses, are accorded respect when no glaring
errors, gross misapprehension of facts, and speculative, arbitrary, and unsupported conclusions can be gathered
from such findings.9

Evidence II.
Now before us, both Buesa and the People manifested that they would no longer file a Supplemental Brief, taking
into account the thorough and substantial discussions of the issues in their respective appeal briefs before the
CA.10 Buesa is consistent in arguing that he deserves to be acquitted in view of the prosecution's failure to prove
his guilt beyond reasonable doubt. First, he claims that PO2 Abad's testimony is full of inconsistencies that reveal an
undeniable irregularity in the buy-bust operation. Second, he maintains that the buy-bust team failed to follow the
procedure mandated in Section 21, Article II of R.A. No. 9165, as amended by R.A. No. 10640. Specifically,
he alleged the absence of a representative from the National Prosecution Service at the time of the conduct
of the inventory. Finally, Buesa insisted that the prosecution also failed to establish an unbroken chain of custody
of the alleged seized drugs. As such, his defenses of denial and frame-up should not have been brushed aside.

The appeal is unmeritorious.

Under Section 5, Article II of R.A. No. 9165 or illegal sale of prohibited drugs, in order to be convicted of the said
violation, the following must concur: (1) the identity of the buyer and the seller, the object of the sale and its
consideration; and (2) the delivery of the thing sold and the payment therefor.11 In illegal sale of dangerous drugs, it
is necessary that the sale transaction actually happened and that "the (procured) object is properly presented as
evidence in court and is shown to be the same drugs seized from the accused."12 Also, under Section 11, Article II
of R.A. No. 9165 or illegal possession of dangerous drugs, the following must be proven before an accused can be
convicted: (1) the accused was in possession of dangerous drugs; (2) such possession was not authorized by law;
and (3) the accused was freely and consciously aware of being in possession of dangerous drugs.13

In both cases involving illegal sale and illegal possession, the illicit drugs confiscated from the accused comprise
the corpus delicti of the charges.14 Time and again, the Court held that it is of paramount importance that the
identity of the dangerous drug be established beyond reasonable doubt; and that it must be proven with certitude
that the substance bought during the buy-bust operation is exactly the same substance offered in evidence before
the court. In fine, the illegal drug must be produced before the court as exhibit and that which was exhibited must be
the very same substance recovered from the suspect. Thus, the chain of custody carries out this purpose "as it
ensures that unnecessary doubts concerning the identity of the evidence are removed."15

In this case, the Court finds that all the foregoing requisites for the sale and possession of an illegal drug were met.
As duly observed by the appellate court, PO2 Abad positively identified Buesa, the seller, as the same person
who transacted with him and the confidential agent for the sale of shabu in the buy-bust operation. Upon the
consummation of the sale, the members of the buy-bust team responded to the pre-arranged signal of PO2 Abad,
and upon apprehension of Buesa, PO2 Abad searched his body. From Buesa, he recovered the marked money and
one (1) pouch containing four (4) plastic sachets which, together with the plastic sachet subject of the sale, tested
positive for the presence of Methamphetamine Hydrochloride.16

Contrary to Buesa's assertion, the prosecution successfully established an unbroken chain of custody. The
chain of custody rule is but a variation of the principle that real evidence must be authenticated prior to its admission
into evidence.17 To establish a chain of custody sufficient to make evidence admissible, the proponent needs only
to prove a rational basis from which to conclude that the evidence is what the party claims it to be. In other words,
the prosecution must offer sufficient evidence from which the trier of facts could reasonably believe that an
item is still what the government claims it to be. In the prosecution of illegal drugs, the well-established federal
evidentiary rule in the United States is that when the evidence is not readily identifiable and is susceptible to
alteration by tampering or contamination, courts require a more stringent foundation entailing a chain of
custody of the item with sufficient completeness to render it improbable that the original item has either
been exchanged with another or been contaminated or tampered with.18

In People v. Kamad,19 we enumerated the essential links that must be proven by the prosecution in order to
establish an unbroken chain of custody over the drugs seized in a buy-bust situation: first, the seizure and marking,
if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the
illegal drug seized by the apprehending officer to the investigating officer; third, the turnover by the investigating
officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission
of the marked illegal drug seized by the forensic chemist to the court.20

Here, the following facts were clearly established from the narrations of PO2 Abad:

Evidence II.
 1. Their confidential agent informed PO2 Abad about the illegal drugs activities of the accused prompting the
police officers to plan a buy-bust operation after they verified said information;

2. The police officers duly prepared the requisite Coordination Form and Pre-Operation Report albeit such
were not duly sent to the PDEA;

3. Their informant accompanied them to the place of the accused and later to Marianville Subdivision in
Brgy. Puypuy since the accused left his place;

4. At 6:20 in the evening on April 25, 2016, the accused arrived onboard a motorcycle;

5. PO2 Abad was introduced to the accused by their informant as the latter's friend who would like to
buy shabu;

6. PO2 Abad, acting as poseur buyer, told the accused that he would like to buy shabu worth P500.00;

7. After being paid with the marked money consisting of a P500.00 bill, the accused gave to PO2 Abad the
specimen in a plastic sachet containing 0.06 gram of shabu, then with the illegal transaction consummated
PO2 Abad made the prearranged signal of holding the shoulder of the accused;

8. PO2 Abad arrested the accused after introducing himself as a police officer and after PO2 Arienda
handcuffed the accused, PO2 Abad conducted the preventive body search and recovered the marked
P500.00 bill and confiscated a coin purse containing four plastic sachets of shabu from the possession of
the accused;

9. In the place of arrest PO2 Abad marked the shabu specimen subject of the buy-bust operation with "RB-
BB" and the four other shabu specimens with "RB-1," "RB-2," "RB-3" and "RB-4;"

10. In the police station, in the presence of Barangay Kagawad Pedro Perez of Brgy. Puypuy and media
representative Efren Chavez, PO2 Abad conducted the inventory and after said witnesses signed the
Receipt/Inventory of Evidence Seized, PO2 Abad took pictures of the accused and the two witnesses in front
of the seized items;

11. Thereafter, the police investigator prepared the Request for Laboratory Examination and Drug Test, then
PO2 Abad brought the seized items with the requests to the Crime Laboratory Office;

12. Chemistry Report No. LD-456-16 shows that the specimens submitted to the Crime Laboratory turned
out positive for shabu, and said report was stipulated upon by the prosecution and the defense on its due
execution and authenticity;

13. PO2 Abad had clear custody of the shabu specimens from the place of the arrest after the markings until
he delivered the same to the Crime Laboratory; and

14. PO2 Abad identified in open Court the seized items and the marked money as well as the documents he
and the police investigator prepared relative to the instant cases against the accused.21

Despite this, Buesa maintains that the prosecution's case must necessarily fail because the evidence
custodian at the crime laboratory to whom the seized items were delivered for their examination was not
presented in court to complete the chain of custody. Thus, the manner by which the items were preserved was
not established. We are not persuaded. Time and again, the Court has held that the failure to present each and
every person who came into possession of the drugs is not fatal to the prosecution's case.22 In People v.
Padua,23 we elucidated:

[N]ot all [the] people who came into contact with the seized drugs are required to testify in court. There is
nothing in Republic Act No. 9165 or in any rule implementing the same that imposes such requirement. As
long as the chain of custody of the seized drug was clearly established not to have been broken and that
Evidence II.
the prosecution did not fail to identify properly the drugs seized, it is not indispensable that each and every
person who came into possession of the drugs should take the witness stand.24 (Citation omitted)

Unfazed, Buesa further raises the prosecution's failure to observe the strict procedure provided under
Section 21, Article II of R.A. No. 9165, as amended by R.A. No. 10640. According to him, he must be
acquitted because no representative from the National Prosecution Service was present at the time of the
conduct of the inventory. The argument, however, deserves scant consideration.

Section 21 (1) of R.A. No. 9165 provides:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the
media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies
of the inventory and be given a copy thereof[.]

Supplementing the above-quoted provision, Section 21 (a) of the Implementing Rules and Regulations (IRR) of R.A.
No. 9165 provides:

(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the
media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies
of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be
conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of
the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-
compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of
the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such
seizures of and custody over said items[.]

On July 15, 2014, R.A. No. 10640 was approved to amend R.A. No. 9165. Among other modifications, it essentially
incorporated the saving clause contained in the IRR, thus:

(1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and
essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and
confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or
counsel, with an elected public official and a representative of the National Prosecution Service or the media who
shall be required to sign the copies of the inventory and be given a copy thereof: Provided, That the physical
inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest
police station or at the nearest office of the apprehending officer/tean1, whichever is practicable, in case of
warrantless seizures: Provided, finally, That noncompliance of these requirements under justifiable grounds, as long
as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending
officer/team, shall not render void and invalid such seizures and custody over said items.

The import of the foregoing excerpts is that under the original provision of Section 21 of R.A. No. 9165, after seizure
and confiscation of the drugs, the apprehending team is required to immediately conduct a physical inventory and
photograph the same in the presence of (1) the accused or the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel; (2) a representative from the media and (3) from the Department
of Justice; and (4) any elected public official who shall be required to sign the copies of the inventory and be given a
copy thereof. It is assumed that the presence of these persons will guarantee "against planting of evidence and
frame up," i.e., they are "necessary to insulate the apprehension and incrimination proceedings from any taint of
illegitimacy or irregularity." Now, the amendatory law mandates that the conduct of physical inventory and
photograph of the seized items must be in the presence of (1) the accused or the person/s from whom such
items were confiscated and/or seized, or his/her representative or counsel; (2) an elected public official; and
(3) a representative of the National Prosecution Service or the media who shall sign the copies of the
inventory and be given a copy thereof.25
Evidence II.
In the present case, Buesa asserts the nullity of his arrest due to the absence of a representative of the National
Prosecution Service. He failed to state, however, that a media representative was present during the conduct of the
inventory. As the records clearly reveal, PO2 Abad conducted an inventory of the seized items in the
presence of Buesa, Barangay Kagawad Pedro Perez of Barangay Puypuy, and media representative Efren
Chavez.26 Accordingly, we sustain the appellate court's finding that this constitutes due compliance with
the mandate under the law. Indeed, the amendment under R.A. No. 10640 uses the disjunctive "or," i.e.,
"with an elected public official and a representative of the National Prosecution Service or the media." Thus,
a representative from the media and a representative from the National Prosecution Service are now
alternatives to each other.27

Furthermore, the fact that the physical inventory and photograph of the illegal drug were not immediately
done at the place of Buesa's arrest cannot alter the outcome of this case. Records show that while the marking
of the evidence was done at the place of arrest, the police officers had to conduct the inventory and
photograph at the police station because the place where Buesa was arrested was a dangerous and
accident-prone area. PO2 Abad stated in his "Sinumpaang Salaysay ng Pag-aresto": "Dahil naroon kami noon sa
tabing highway at accident prone area ang nasabing Iugar agad kaming nagpasya na dalhin na sa aming himpilan
ang nasabing si Raymond Buesa kasama ang mga ebidensiyang nakuha mula sa kanya[.]"28 He also testified
during his direct examination: "After the marking of the evidence, and considering that we are in the accident prone
area we decided to proceed to the police station, ma'am."29

In People of the Philippines v. Frankie Magalong,30 the Court sustained the conviction of the accused therein
despite the fact that the inventory was conducted not at the place of arrest but at the Philippine Drug Enforcement
Agency office, sustaining the explanation of the police officers that they needed to avoid commotion and ensure
their own safety. Also, in People v. Sic-open,31 the apprehending team similarly justified that they conducted a
preliminary inventory of the seized items inside the car because it was too dark at the time and they were being
cautious of their own safety as they were not sure if there were other persons within the vicinity aside from the
accused therein.32

Indeed, as long as the integrity and evidentiary value of an illegal drug were not compromised, non-
compliance with R.A. No. 9165 and its IRR may be excused.33 As sufficiently shown by the prosecution's
evidence, Buesa was clearly identified as the person who sold and possessed the illegal substances during the
conduct of a valid buy-bust operation. As soon as the sale was consummated and the body of Buesa was frisked,
PO2 Abad arrested Buesa and marked the seized items immediately at the place of arrest. Subsequently, due to the
fact that said place of arrest was accident-prone, the police officers brought Buesa and the seized items to the
police station to conduct the inventory and taking of photographs in the presence of the witnesses required by law.
Then, the seized items were brought to the crime laboratory where they tested positive for shabu. These very same
items were duly identified and marked as exhibits in open court. PO2 Abad categorically testified as follows:

Q: What did you do after successfully buying from the accused?

A: After I handed to him the money, I immediately made the signal to my companion.

xxxx

Q: You said you were able to buy [from] the accused, how will you [be] able to identify the item that you bought from
the accused?

A: I marked it with RB-BB.

Q: When did you mark it?

A: On April 25, 2016.

PROS. BELZA:

[Q:] Was it immediately after you arrested the accused or during the inventory?
Evidence II.
[A:] After the arrest of the accused at the place of the incident, ma'am.

xxxx

PROS. BELZA:

May we move that the plastic sachet with marking RB-BB be marked as Exhibit K for the prosecution.

xxxx

Q: What did you do [to] the items seize[d]?

xxxx

A: After the markings of the evidence, and considering that we are in the accident prone area, we decided to
proceed to the police station, ma'am.

PROS. BELZA:

Q: Who was holding the items confiscated from the accused?

A: Me, ma'am.

Q: Where did you place it?

A: Inside a transparent plastic, ma'am.

Q: You said you went back to the police station for the conduct of inventory, who were with you during the inventory,
Mr. Witness?

A: The media representative, PO2 Arienda, and the barangay kagawad, ma'am.

xxxx

Q: After the conduct of the inventory, photograph taking, what else happened?

xxxx

A: We prepared the request for laboratory examination, ma'am.

Q: Who delivered the said request?

A: I was the one, ma'am.

xxxx

Q: Were you able to know the result of the examination?

xxxx

A: Yes, ma'am. Positive.

PROS. BELZA

Evidence II.
The Chemistry Report was previously marked as Exhibit H, your honor. May we move that the FINDINGS AND
CONCLUSION be bracketed and marked as Exhibit H-1 and the signature of the Forensic Chemist be marked as
Exhibit H-2.34

Thus, against this overwhelming evidence for the prosecution, Buesa's defenses of denial and frame-up must
necessarily fail because they can easily be concocted and they are common and standard defense ploys in
prosecutions for violation of R.A. No. 9165. In order to prosper, Buesa had the burden to prove his defenses of
denial and frame-up with strong and convincing evidence, and defeat the presumption that the police officers
properly performed their duties.35 But as duly found by the RTC and the CA, Buesa undeniably failed to discharge
this burden.

With respect to the penalty imposed, we sustain the ruling of the RTC, as affirmed by the CA, in Criminal Case No.
26605-2016-C (P) and Criminal Case No. 26604-2016-C (P). On the one hand, Section 5, Article II of R.A. No. 9165
penalizes illegal sale of shabu with the penalty of life imprisonment and a fine ranging from Five Hundred Thousand
Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00). On the other hand, Section 11, Article II of R.A. No.
9165 penalizes illegal possession of less than five (5) grams of methamphetamine hydrochloride or shabu with
imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three Hundred
Thousand Pesos (P300,000.00) to Four Hundred Thousand Pesos (P400,000.00). The evidence adduced by the
prosecution established beyond reasonable doubt that Buesa possessed a total of 0.24 gram of shabu without any
legal authority. Applying the Indeterminate Sentence Law, the minimum period of the imposable penalty shall not fall
below the minimum period set by the law and the maximum period shall not exceed the maximum period allowed
under the law. Taking that into consideration, the penalty meted out by the RTC, as affirmed by the CA, was within
the range provided by R.A. No. 9165. The appropriate penalty was, therefore, imposed by the lower court.36

WHEREFORE, premises considered, the appeal is DISMISSED. The Decision dated December 5, 2016 of the
Regional Trial Court, Branch 34, Calamba City, Laguna, in Criminal Case Nos. 26604-2016-C (P) and 26605-2016-
C (P), as affirmed by the Decision dated December 7, 2017 of the Court of Appeals in CA-G.R. CR-H.C. No. 08929,
convicting appellant Raymond Buesa y Alibudbud of Illegal Sale and Illegal Possession of Methamphetamine
Hydrochloride (shabu), in violation of Sections 5 and 11, respectively, of Article II of Republic Act No. 9165, or the
Comprehensive Dangerous Drugs Act of 2002, is AFFIRMED. He is hereby sentenced to serve the penalty of Life
Imprisonment and to pay a Fine of Five Hundred Thousand Pesos (P500,000.00) for violation of Section 5 in
Criminal Case No. 26605-2016-C (P) and imprisonment of Twelve (12) Years and One (1) Day, as minimum, to
Fifteen (15) Years, as maximum, and to pay a fine of Three Hundred Thousand Pesos (P300,000.00) for violation of
Section 11 in Criminal Case No. 26604-2016-C (P).

Evidence II.
 20.) [ G.R. No. 248616, January 12, 2021 ]

GALILEO A. MAGLASANG, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

DECISION

CARANDANG, J.:

Before this Court is a Petition for Review on Certiorari1 filed by petitioner Galileo A. Maglasang (Galileo) assailing
the Decision2 dated December 14, 2018 and the Resolution3 dated July 17, 2019 of the Court of Appeals (CA) in
CA-G.R. CR No. 01649-MIN. The CA affirmed the Judgment4 dated November 17, 2017 and the Order5 dated
March 22, 2018 of the Regional Trial Court (RTC) of Cagayan de Oro City, Branch 20, in Criminal Case No. 2014-
1164. The fallo of the Judgment provides:

WHEREFORE, there being proof beyond reasonable doubt, accused Galileo A. Maglasang is found guilty.

Pursuant to the Supreme Court Administrative Circular No. 08-2008 issued on 25 January 2008, accused is meted
to pay a fine of P4,000.00.

SO ORDERED.6 (Emphasis in the original)

Facts of the Case

Galileo was charged with libel under Article 353 of the Revised Penal Code (RPC) in a Reproduced
Information7 dated February 22, 2016. The Reproduced Information is based on the Resolution8 dated June 13,
2014 of Assistant City Prosecutor Abol Alam A. Padate. The Reproduced Information states:

That on 30 March 2014, in the City of Cagayan de Oro, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, illegally, criminally and with the intention of attacking the honesty, virtue and
reputation of offended parties CAPT. RENE A. MAGLASANG and ENGR. NELIA COCOS, who is the newly-
elected President of Misamis Institute of Technology (MIT) and Registrar of MIT-Ozamis City, respectively, and
for the further purpose of exposing the latter to public hatred, contempt and ridicule, wrote, composed and caused
the publication of a LETTER-COMPLAINT, which contains injurious, malicious and defamatory imputations
of an alleged illegal act committed by the offended parties, the pertinent provision of said letter reads, thus:

COMMO Ferdinand M. Velasco PCG

Commander
Coast Guard District Northern Mindanao
Corrales Extension, Macabalan,
Cagayan De Oro City

Dear Commander Velasco,

Re: Spurious S.O.'s and CAV's of graduates of the Misamis Institute of Technology CHED Region Office X

xxxx

I write in my capacity as President of the Misamis Institute of Technology, Inc. (hereafter, "MIT"), in relation to
the case, entitled MISAMIS INSTITUTE OF TECHNOLOGY, INC versus ZENAIDA GERSANA, CHEDRO X
Regional Director, and ROY ROQUE U. AGCORPA, CHEDRO X Chief Administrative Officer, now pending before
the Office of the Executive Director of the Commission on Higher Education (hereafter, "CHED").

As a consequence to the above-mentioned case, we uncovered that CHED Region Office X at Cagayan de
Oro City had turned over S.O. 's and CAV's to Rene A. Maglasang and to persons associated with him,

Evidence II.
including Engr. Nelia Cocos, who, in turn, sold said documents to unsuspecting students and graduates of
MIT.

Rene A. Maglasang and all persons who take instructions from him, including Engr. Nelia Cocos, have nothing to do
with MIT and do not have in their custody the academic records of the students and graduates of MIT to whom
these S.O.'s and CAV's pertain.

xxxx

Very Truly Yours,

Sgd. Galileo A. Maglasang

with which statements, the said accused meant and intended to convey, as in .fact he did mean and convey false
and malicious imputation that the said offended parties were unscrupulous and devious individuals which
imputations as he well knew, were false and malicious, offensive and derogatory to the good name, character and
reputation of the offended parties and that the said letter was solely written and circulated by the said accused for
no other purpose than to impeach and besmirch the good name, character and reputation of the offended parties, in
order to expose him, as in fact, he was exposed to dishonor, discredit, public hatred, contempt and ridicule, to their
damage and prejudice.

Contrary to law.9 (Emphasis and italics in the original.)

Galileo was originally scheduled to be arraigned on February 3, 2015. However, a fire destroyed the records of
this case on January 30, 2015. Thus, the Office of the City Prosecutor prayed for the reconstitution of the
records of the case.10 This was granted by the RTC in an Order11 dated November 12, 2015. On June 2, 2016,
Galileo was arraigned and pleaded not guilty.12

Respondent presented private complainant Rene A. Maglasang (Rene) and Ensign Ronnie Rey de la Vega Pabico
(P/Ens Pabico), Community Relations Officer of the Philippine Coast Guard (PCG) in Northern Mindanao, as its
witnesses. According to respondent, Engineer Allan A. Maglasang (Engr. Allan), Rene, and Galileo's brother, who is
also a part of the PCG, called Rene on March 31, 2014 to inform him that the office of Commodore Ferdinand
Velasco (Commo Velasco), Commander of the PCG Region X, Cagayan de Oro City, received a letter dated March
30, 2014 from Galileo.13 The letter reads:

I write in my capacity as President of the Misamis Institute of Technology, Inc. (hereafter, "MIT"), in relation to the
case, entitled MISAMIS INSTITUTE OF TECHNOLOGY, INC. versus ZENAIDA GERSANA, CHEDRO X Regional
Director, and ROY ROQUE U. AGCORPA, CHEDRO X Chief Administrative Officer, now pending before the Office
of the Executive Director of the Commission on Higher Education (hereafter, "CHED").

As a consequence to the above-mentioned case, we uncovered that CHED Region Office X at Cagayan de Oro City
had turned over S.O.'s and CAV's to Rene A. Maglasang and to persons associated with him, including Engr. Nelia
Cocos, who, in turn sold said documents to unsuspecting students and graduates of MIT.

Rene A. Maglasang and all persons who take instructions from him, including Engr. Nelia Cocos, have nothing to do
with MIT and do not have in their custody the academic records of the students and graduates of MIT to whom
these S.O.'s and CAV's pertain.

In an effort to avert damage the issuance of these spurious S.O.'s and CAV's, the Office of the Executive Director of
CHED, in the letter, dated March 6, 2014, machine copy of which attached hereto as Annex A, addressed to me
clarified that indeed the issuance of the S.O.'s and the CAV's to persons who do not have custody of the academic
records of the students and graduates of MIT to whom the S.O.'s and CAV's pertain is irregular. Consequently, the
Office of the Executive Director of CHED, in the Memorandum from the Office of the Executive Director, dated
March 27, 2014, machine copy of which attached hereto as Annex B, directed ZENAIDA GERSANA, CHEDRO X
Regional Director, to issue the S.O.'s and CAV's in accordance with the proper procedure of CHED.

Evidence II.
The Office of the Executive Director of CHED, in both the letter, dated March 6, 2014 (Annex A) and
the Memorandum from the Office of the Executive Director, dated March 27, 2014 (Annex B), specifically addressed
me, not Rene A. Maglasang, as the President of MIT.

I, therefore, request your good office not to accept the following S.O.'s and CAV's issued by CHEDRO X, to wit: x x
x.

The foregoing list may not have been exhaustive. I, therefore, request that any document which appears to be
signed by Rene A. Maglasang in which he described himself as the President of MIT, and by Engr. Nelia Cocos, in
which she described herself as the Registrar MIT, be referred to the Office of the Executive Director of CHED for
authenticity.

Lastly, may I request that your good office verify the foregoing matter with the Office of the Executive Director of
CHED.

Thank you for your giving me your precious time and attention.14 (Emphasis in the original.)

Upon Rene's request, Engr. Allan obtained a copy of the letter and gave it to Rene. Rene, his family, and the
staff of the Misamis Institute of Technology, Inc. (MIT) read the letter. Rene felt insulted and maligned by the
accusations in the letter. As such, he and Engr. Nelia Cocos (Engr. Cocos; collectively, private
complainants) filed a complaint-affidavit for libel against Galileo. Galileo was charged with libel.15

Galileo did not present any evidence in his defense16 but submitted a Memorandum17 to the RTC. Galileo argued
in his Memorandum that the original letter was not presented as evidence. Respondent was unable to prove
that the original letter was destroyed or lost. Hence, the case should be dismissed, and Galileo should be
acquitted.18

Ruling of the Regional Trial Court

In its Judgment19 dated November 17, 2017, the RTC found Galileo guilty beyond reasonable doubt of the crime
of libel and imposed the penalty of a fine of P4,000.00 upon him.20 The RTC held that all the elements of libel
under Article 353 of the RPC were established in this case. The prosecution presented Rene and P/Ens Pabico as
its witnesses. P/Ens Pabico testified as to the existence of the letter addressed to Commo Velasco that was on file
in their office. First, Galileo's letter destroyed the character of private complainants by imputing that they committed
irregularities, specifically selling Special Orders (SOs) and Certification, Authentication, and Verification (CAVs) to
students of MIT even though they have nothing to do with MIT and do not have custody of the records of its
students and graduates. Second, these imputations were malicious. Galileo did not present evidence to overcome
the presumption that every defamatory imputation is malicious, even if it be true, if no good intention and justifiable
motive for making it is shown. Third, the imputations made by Galileo were addressed to private complainants who
are natural persons. Fourth, the malicious imputations made by Galileo brought dishonor, discredit, or contempt
upon private complainants. Fifth, Galileo sent the letter to a third person, namely Commo Velasco. Rene learned
about the letter through Engr. Allan. Hence, the element of publication, which requires the delivery of the libelous
matter by mailing it, reading it, or communicating its purpose in any manner to any person other than the one
libeled, was satisfied.21

Under the RPC, libel is punishable by imprisonment of prison correccional in its minimum and maximum period or a
fine ranging from P200.00 to P6,000.00, or both, in addition to the civil action that may be brought by the offended
party.22 Pursuant to this Court's Administrative Circular No. 08-200823 issued on January 25, 2008, the RTC
considered the following factors in imposing a penalty of a fine alone on Galileo: (1) Rene and Galileo are full-
blooded brothers; (2) they are not in good terms because both were claiming to be the President of MIT; (3) this is
the first time that Rene sued Galileo for libel; and (4) Engr. Cocos did not testify.24

Galileo filed a motion for reconsideration,25 but it was denied.26 He then appealed to the CA.27

Ruling of the Court of Appeals

Evidence II.
On December 14, 2018, the CA rendered its Decision28 affirming the Judgment of the RTC. The CA held that
respondent was able to establish that the original letter was unavailable and cannot be produced in Court.
Therefore, the RTC was correct in admitting the photocopy of the letter as evidence pursuant to Section 5, Rule 130
of the Revised Rules on Evidence. The CA gave credence to the testimony of P/Ens Pabico that Commo Velasco's
secretary emailed a copy of the letter to him sometime in January or February 2017. The secretary is no longer
connected with PCG while Commo Velasco is under investigation and is in a floating status. P/Ens Pabico
confirmed that his office received a copy of the letter.29

The CA also agreed with the RTC that all the elements of libel are present in the case, namely identifiability,
defamatory allegation, and malice. Private complainants were clearly identified in the letter. The statements in the
letter are defamatory because it ascribed the commission of irregular transactions against private complainants and
their possession of a vice or defect, which tended to dishonor or discredit them and impeached their virtue, credit,
and reputation. The malice in the imputations may be inferred from the ongoing legal dispute between Rene and
Galileo over the leadership of MIT. And the element of publication was satisfied when Galileo sent the letter to
Commo Velasco. Notably, Galileo did not question the presence of the elements of libel in this case.30

Galileo filed a Motion for Reconsideration.31 After it was denied by the CA,32 he filed a petition for review
on certiorari before this Court.

Petitioner's Arguments

Galileo argued that under Best Evidence Rule in Section 3, Rule 130 of the. Revised Rules on Evidence,
when the subject of the inquiry is the contents of the document, no evidence shall be admissible other than
the original document itself, except in cases specified under said rule. Secondary evidence may only be
accepted if the following are established: (1) the existence or due execution of the original; (2) loss and destruction
of the original or the reason for its non-production in court; and (3) on the part of the offeror, the absence of bad faith
to which the unavailability of the original can be attributed. Respondent did not exert any effort to justify the
presentation of secondary evidence instead of the original letter. P/Ens Pabico testified that he cannot confirm
if the letter was received by the PCG because he was not yet in PCG when the letter was supposedly sent. He does
not know Comma Velasco's secretary who supposedly sent the email containing the letter or her location. In
addition, the printed copy of the letter brought by P/Ens Pabico bore the marking "Annex A." This was the same
marking placed on letter attached to Rene's complaint-affidavit as Annex A. Galileo concluded that the letter brought
by P/Ens Pabico was actually given to him by respondent. Further, respondent did not submit evidence that Commo
Velasco brought the letter with him after being separated from the PCG. Based on the foregoing, Galileo asserted
that respondent failed to prove that the letter cannot be produced in court.33

Respondent's Arguments

Respondent pointed out that Galileo's arguments in his petition are a mere rehash of this arguments in his motions
for reconsideration before the RTC and the CA. The courts a quo have already ruled upon these matters. In any
case, respondent insisted that it was able to establish that the original letter was not available through P/Ens
Pabico's testimony that Commo Velasco was under investigation. Hence, Section 5, Rule 130 of the Revised Rules
on Evidence applies and respondent was justified in using copies of the letter from Rene and P/Ens Pabico as
evidence.34

Respondent also argued that the CA was correct in affirming the RTC that the elements of the crime of libel were
established in this case. First, the letter is clearly defamatory because it accused private complainants of
misrepresenting themselves as officers of MIT and sold fake and spurious SOs and CAVs to unsuspecting students
and graduates of MIT. Second, the imputation in the letter is malicious. Pursuant to Article 354 of the RPC, every
defamatory imputation is presumed to be malicious. Galileo did not present evidence to overcome this presumption.
He did not show the existence of the exceptions in Article 354, namely: (1) a private communication made by any
person to another in the performance of any legal, moral, or social duty; and (2) a fair and true report, made in good
faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of
confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions. Third, the letter was given publicity when Galileo sent
it to Comma Velasco. It was also read by Galileo and Rene's family members and MIT officials. Considering the
foregoing, respondent prayed that Galileo's petition be dismissed.35
Evidence II.
 Petitioner's Supplemental Argument

Galileo filed a Supplement to Petition for Review on Certiorari36 informing the Court that the RTC of Oroquieta City,
Branch 14 rendered a Decision37 dated November 12, 2019 issuing a writ of final injunction against Rene and the
members of his group enjoining them from proclaiming in public and in judicial proceedings that: (1) the Decision
dated July 29,3003 of the RTC in Special Civil Action Nos. OC-004 and OC-005, as well as the decision of the CA
affirming it, are still subsisting and enforceable; (2) the election held at MIT on April 15, 2007 is null and void; and (3)
Rene is still the president of MIT.38

Issue

Whether the CA erred m affirming that Galileo is guilty beyond reasonable doubt of libel.

Ruling of the Court

We grant the petition.

Article 35339 of the Revised Penal Code defines libel as a public and malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor,
discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. In order to be
held liable for libel, it must be established that: (1) the imputation is defamatory; (2) the imputation is malicious; (3)
the imputation was given publicity; and (4) the victim must be identifiable.40

The conflict of Rene and Galileo originated from their competing claims over the management of MIT. This allegedly
led Galileo to send a letter to Comma Velasco containing malicious imputations against private
complainants.41 Thus, proof of the letter is necessary for the conviction of Galileo.

Section 19,42 Rule 132 of the Revised Rules of Evidence defines public documents as those: (a) written
official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and
public officers, whether of the Philippines, or of a foreign country; (b) documents acknowledged before a
notary public except last wills and testaments; and (c) public records, kept in the Philippines, of private
documents required by law to be entered therein. All other documents are private. Since the letter does not
qualify as a public document, it is a private document. Section 20 of Rule 132 states how private documents
are proven:

Section 20. Proof of private document. – Before any private document offered as authentic is received in
evidence, its due execution and authenticity must be proved either:

(a) By anyone who saw the document executed or written; or

(b) By evidence of the genuineness of the signature or handwriting of the maker.

Any other private document need only be identified as that which it is claimed to be.

Pursuant to Section 20, a private document may be authenticated by: the person who executed it, the
person before whom its execution was acknowledged, any person who was present and saw it executed,
the person who after its execution, saw it and recognized the signature, being familiar thereto or an expert,
or the person to whom the parties to the instrument had previously confessed execution thereof.43 In this
case, neither Rene nor P/Ens Pabico saw the execution of the letter. Though Rene claimed that he was
personally familiar with Galileo's signature, he did not explain why or how he became familiar with it.44 As
such, We cannot give credence to Rene's claim because it does not have any basis. Aside from Rene and
P/Ens Pabico, no other witness attempted to authenticate the letter. Thus, respondent failed to establish the
due execution and authenticity of the letter.

Respondent also failed to justify its submission of photocopies of the letter instead of its original. The Best
Evidence Rule under Section 3, Rule 130 of the Revised Rules on Evidence provides:
Evidence II.
Section 3. Original document must be produced; exceptions. – When the subject of inquiry is the contents of a
document, no evidence shall be admissible other than the original document itself, except in the following cases:

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

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

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

(d) When the original is a public record in the custody of a public officer or is recorded in a public office.

Based on Section 3, the original document itself must be presented in court, except in the instances specified in
Section 3. With respect to the first exception, Section 5, Rule 130 of the Revised Rules on Evidence states that:

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

To prove that the letter was duly received by the PCG in Northern Mindanao, respondent presented P/Ens Pabico
as its witness. According to P/Ens Pabico, he has been the Community Relations Officer in PCG Northern Mindanao
since November 2016.45 After the RTC issued a Subpoena Duces Tecum Ad Testificandum46 addressed to the
Chief or Records Officer of the PCG Northern Mindanao to bring/produce the original letter, P/Ens Pabico instructed
his secretary to obtain a copy of said letter. The secretary of Comma Velasco emailed a copy of the letter to him,
through the official email address of their office. During his testimony, P/Ens Pabico said that Comma Velasco was
under investigation while his secretary was no longer connected with the PCG.47

We find that P/Ens Pabico's testimony failed to establish that the letter was sent by Galileo to Comma
Velasco and that it can no longer be presented in court. Notably, P/Ens Pabico is the Community Relations
Officer of the PCG Northern Mindanao and not its Records Officer.48 He did not clarify whether he had custody
of the documents of the PCG Northern Mindanao as its Community Relations Officer. More importantly, P/Ens
Pabico said that "I am not in the position to say we received a copy because during that time, I was not yet in the
Philippine Coast Guard, Sir."49 When asked why he instructed his secretary to find a copy of the letter after
receiving the subpoena, he replied that "I do not know if that certain file exists because during that time I was not the
Coast Guard during 2014, I was at training."50 Clearly, P/Ens Pabico has no personal knowledge of whether the
letter was received by Commo Velasco or his office. He likewise has no knowledge of the location of the
original letter.

Moreover, P/Ens Pabico does not even know who sent him a copy of the letter. He is unaware of the identity
and location of Commo Velasco's secretary.51 In addition, Galileo duly noted that the copy of the letter submitted by
P/Ens Pabico bore the marking "Annex A."52 This is the same marking placed on the copy of the letter annexed to
Rene's complaint-affidavit.53 If indeed a copy of the letter came from Commo Velasco's secretary, then it is baffling
why it had that marking. It is therefore uncertain if Commo Velasco's secretary had the original letter in his or her
custody. It is also doubtful that P/Ens Pabico truly received a copy of the letter from Commo Velasco's secretary.
Hence, the genuineness of the copy of the letter that P/Ens Pabico brought to court is questionable.

Aside from P/Ens Pabico, respondent did not present any other evidence of the existence and receipt of the letter.
Rene himself did not see the original letter. He only received its copy from Engr. Allan, who was likewise merely
informed that a letter was supposedly sent by Galileo.54 Anyone who may have had personal knowledge of the
receipt of the letter, such as Commo Velasco, was not presented as a witness. That being the case, the CA
erred in ruling that the RTC was correct in admitting the photocopies of the letter presented by respondent.
Respondent not only failed to prove the existence of the letter pursuant to Section 20, Rule 132, it also failed to

Evidence II.
establish the requirements for the presentation of secondary evidence in court under Rule 130 of the
Revised Rules on Evidence.

It is true that Galileo did not present evidence in his defense. Nonetheless, he refused to stipulate on the existence
of the letter.55 It is well-settled that the burden rests on the prosecution to prove that the accused is guilty beyond
reasonable doubt.56 No less than Section 14,57 Article III of the 1987 Constitution states that "In all criminal
prosecutions, the accused shall be presumed innocent until the contrary is proved." Therefore, a finding of guilt must
rest on the strength of the prosecution's own evidence, and not on the weakness or absence of evidence for the
defense.58 Galileo's conviction rests on the letter he allegedly sent to Commo Velasco. Without the letter, there is
no basis to find him guilty for libel. Respondents failed to prove the existence of the letter and justify its failure to
present the original letter in court. The photocopies it submitted are not acceptable. Considering that respondent
failed to prove that Galileo sent a letter to Commo Velasco, it is no longer necessary to determine whether the
contents of the letter are libelous. Consequently, Galileo must be acquitted of libel.

WHEREFORE, the petition is GRANTED. The Decision dated December 14, 2018 and the Resolution dated July
17, 2019 of the Court of Appeals in CA-G.R. CR No. 01649-MIN are REVERSED and SET ASIDE. Petitioner
Galileo A. Maglasang is ACQUITTED of the crime charged against him.

Evidence II.
 20A.) [ G.R. No. 248616, January 12, 2021 ]

GALILEO A. MAGLASANG, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

CONCURRING OPINION

CAGUIOA, J.:

I concur with the ponencia that the accused Galileo A. Maglasang (Maglasang) should be acquitted on the ground of
reasonable doubt.

Maglasang was charged with libel for the alleged letter that he sent to the Commander of the Philippine Coast
Guard (PCG) ascribing defamatory imputations against his brother who is also a member of the PCG.
The ponencia acquits him on the ground that only a photocopy of the alleged letter was presented in evidence.

I agree.

As early as 1931, in the case of Provincial Fiscal of Pampanga v. Reyes,1 the Court has already held that the Best
Evidence Rule, now Original Document Rule, applies in cases of libel. In the said case, which involved libel arising
from an article published in a newspaper, the Court held that "certainly the copies of the weekly where the libelous
article was published, and its translation, constitute the best evidence of the libel charged. The newspaper itself is
the best evidence of an article published in it."2 Applying the same in this case, the letter allegedly received by the
Commander of the PCG is the best evidence and should have been the one presented as evidence in accordance
with the Original Document Rule.

It is worth emphasizing that the purpose of having a rule that requires the presentation of the original is ''to
ensure that the exact contents of a writing are brought before the court x x x [in order to] protect against
misleading inferences resulting from the intentional or unintentional introduction of selected portions of a
larger set of writings."3 Particularly, the rule recognizes that:

(a) the precision in presenting to the court the exact words of the writing is of more than average importance,
particularly as respects operative or dispositive instruments, such as deeds, wills and contracts, because a slight
variation in words may mean a great difference in rights; (b) there is a substantial hazard of inaccuracy in the human
process of making a copy by handwriting or typewriting; and (c) as respects oral testimony purporting to give from
memory the terms of a writing, there is a special risk of error, greater than in the case of attempts at describing other
situations generally.4

In Seiler v. Lucasfilm,5 it was explained:

In the days before liberal rules of discovery and modern techniques of electronic copying, the rule guarded against
incomplete or fraudulent proof. By requiring the possessor of the original to produce it, the rule prevented the
introduction of altered copies and the withholding of originals. The purpose of the rule was thus long thought to be
one of fraud prevention, but Wigmore pointed out that the rule operated even in cases where fraud was not at issue,
such as where secondary evidence is not admitted even though its proponent acts in utmost good faith. Wigmore
also noted that if prevention of fraud were the foundation of the rule, it should apply to objects as well as writings,
which it does not. 4 Wigmore, Evidence § 1180 (Chadbourn rev. 1972).

The modern justification for the rule has expanded from prevention of fraud to a recognition that writings
occupy a central position in the law. When the contents of a writing are at issue, oral testimony as to the
terms of the writing is subject to a greater risk of error than oral testimony as to events or other
situations. The human memory is not often capable of reciting the precise terms of a writing, and when the terms
are in dispute only the writing itself, or a true copy, provides reliable evidence. To summarize then, we observe
that the importance of the precise terms of writings in the world of legal relations, the fallibility of the
human memory as reliable evidence of the terms, and the hazards of inaccurate or incomplete duplication
are the concerns addressed by the best evidence rule. See 5 Louisell & Mueller, Federal Evidence,§ 550 at 283;
Evidence II.
McCormick on Evidence (3d ed. 1984) § 231 at 704; Cleary & Strong, The Best Evidence Rule: An Evaluation in
Context, 51 Iowa L.Rev. 825, 828 (1966).6 (Emphasis supplied)

While the Original Document Rule is not absolute and in fact provides for the exceptions on when
secondary evidence may be submitted, the Rules on Evidence, as amended, unmistakably maintain their
preference for the presentation of the original as they only allow the introduction of secondary evidence
upon a showing by the proponent that it is no longer reasonable to require the original under the
circumstances. Under the Rules, secondary evidence may only be introduced when:

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

(b) When the original is in the custody or under the control of the party against whom the evidence is
offered, and the latter fails to produce it after reasonable notice, or the original cannot be obtained by local
judicial processes or procedures;

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

(d) When the original is a public record in the custody of a public officer or is recorded in a public office; and

(e) When the original is not [closely related] to a controlling issue.7 (Underscoring omitted)

Only the first exception is applicable in the present case. The second exception clearly does not apply as it is
the prosecution's core assertion that Maglasang sent the letter to the Commander of the PCG. The third and fourth
exceptions clearly do not apply in this case as the document in question here does not constitute voluminous
records which cannot be examined in court without great loss of time, and neither is the document at issue here a
public record. The fifth exception also does not apply as the contents of the document are in fact the central issue
here as these would be determinative of Maglasang's guilt or innocence.

The Court of Appeals (CA), in ruling for the admissibility of the photocopy, simply stated that it "agrees with the trial
court in holding that the prosecution was able to establish the unavailability of the original letter or that it cannot be
produced in court,"8 seemingly adverting to the first exception.

The CA was incorrect and I thus agree with the ponencia's reversal of the said ruling.

For the first exception to apply, the Rules state that the offeror must establish (1) the execution or existence of the
original, and (2) the cause of its unavailability without bad faith on his or her part. Specifically, the offeror of the
secondary evidence is burdened to prove: (a) the loss or destruction of the original without bad faith on the part of
the proponent/offeror which can be shown by circumstantial evidence of routine practices of destruction of
documents; (b) the proponent must prove by a fair preponderance of evidence as to raise a reasonable inference of
the loss or destruction of the original copy; and (c) it must be shown that a diligent and bona fide but unsuccessful
search has been made for the document in the proper place or places.10

None of these things were proven by the prosecution. The CA simply justified its resort to the first exception by
quoting the following testimony from the transcripts:

Q10. Mr. Witness, this appears to be a reproduction. Will you please state why this is just a reproduction and does
not appear to be original? Will you please explain this?

A10. Actually, it was just sent to us coming from the office of Commodore Ferdinand M. Velasco.

Q11. He just sent you that photocopy?

A11. Actually Sir, his secretary sent me this photocopy thru an electronic mail.
Evidence II.
Q12. That's why you printed it?

A12. Yes, sir.

Q13. So, where is now the original of that Letter, or who is in possession of the original of that Letter Mr. Witness?

A13. Actually Sir, I don't know where is the original document.

Q14. And who is the Secretary of Commodore Velasco?

A14. I cannot remember the full name of his secretary because during that time in 2014 I was at training Sir. So, I
don't [have knowledge] as to who is the Secretary of Commodore Velasco.

Q15. Can you recall when did the secretary of Commodore Velasco e-mailed (sic) this photocopy?

A15. Sometime in January or February.

Q16. Of this year?

A16. Yes, Sir.

Q17. Were you able to talk personally to the secretary of Commodore Velasco?

A17. No, Sir. I just give instruction to my secretary to find this particular documents (sic) as requested by the court.

Q18. And where is the secretary now of Commodore Velasco (sic)?

A18. I have no idea Sir.

Q19. You mean to say that she is no longer connected there at the Phil. Coast Guard District Office here in Corrales
extension?

A19. Yes, Sir.

Q20. Where is now Commodore Velasco (sic)?

A20. Commodore Velasco is under investigation.

Q21. In other words, he is no longer in that office?

A21. He is in floating status, Sir.

Q22. I see. And you affirm and confirm that indeed your office received a copy of this Letter?

A22. Yes, Sir.11

The foregoing testimony does not establish that the original of the letter had either been lost or destroyed.
The prosecution witness who was asked to authenticate the photocopy of the letter essentially testified that
he does not know where the original of the letter is, and neither does he know the whereabouts of the
person who sent him the photocopy of the said letter.

The foregoing testimony is thus insufficient to justify the introduction of secondary evidence under the first
exception. Verily, the offeror of secondary evidence "is not obliged to prove the loss or destruction of the
original document beyond all possibility, as it is enough to prove a reasonable probability of such

Evidence II.
loss."12 Unfortunately, the above testimony does not even establish a reasonable probability of the loss or
destruction of the letter. Most fatal of all, there is a complete absence of any showing of "a bona fide and
diligent search, fruitlessly made in places where it is likely to be found."13

Considering that the prosecution was not able to justify its resort to the introduction of secondary evidence, the
photocopy must thus be held to be inadmissible as evidence. Accordingly, Maglasang is entitled to an acquittal. As
aptly stated by the Court in a 1910 case:

x x x Through the lack of the original document containing the memorandum alleged to be false, it is improper to
hold, with only a copy of the said original in view, that the crime prosecuted was committed; and although, judging
from the testimony of the witnesses who were examined in the two consolidated causes, there is reason to entertain
much doubt as to the defendant's innocence, yet, withal, this case does not furnish decisive and conclusive proof of
their respective guilt as coprincipals of the crime charged. Defendants in a criminal cause are always presumed to
be innocent until their guilt be fully proven, and, in case of reasonable doubt and when their guilt is not satisfactorily
shown, they are entitled to a judgment of acquittal.14 (Emphasis supplied)

Based on these premises, I vote to GRANT the Petition.

Evidence II.
21.) G.R. Nos. 108280-83 November 16, 1995 (MAIN ISSUE IS THE PHOTOGRAPH WAS NOT IDENTIFIED
BY THE PERSON WHO TOOK IT. COURT RULED IT WAS STILL AUTHENTICATED BY THE EYEWITNESSES
WHO TESTIFIED THAT THE PICTURE DEPICTED WAT HAPPENED)

ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and

JOSELITO TAMAYO, petitioners,
vs.
PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents.

G.R. Nos. 114931-33 November 16, 1995

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANNIE FERRER, accused, ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and
JOSELITO TAMAYO, accused-appellants.

PUNO, J.:

The case before us occurred at a time of great political polarization in the aftermath of the 1986 EDSA Revolution.
This was the time when the newly-installed government of President Corazon C. Aquino was being openly
challenged in rallies, demonstrations and other public fora by "Marcos loyalists," supporters of deposed President
Ferdinand E. Marcos. Tension and animosity between the two (2) groups sometimes broke into violence. On July
27, 1986, it resulted in the murder of Stephen Salcedo, a known "Coryista."

From August to October 1986, several informations were filed in court against eleven persons identified as Marcos
loyalists charging them with the murder of Salcedo. Criminal Case No. 86-47322 was filed against Raul Billosos y de
Leon and Gerry Nery y Babazon; Criminal Case No. 86-47617 against Romeo Sison y Mejia, Nilo Pacadar y Abe
and Joel Tan y Mostero; Criminal Case No. 86-47790 against Richard de los Santos y Arambulo; Criminal Case No.
86-48538 against Joselito Tamayo y Ortia; and Criminal Case No. 86-48931 against Rolando Fernandez y
Mandapat. Also filed were Criminal Cases Nos. 86-49007 and 86-49008 against Oliver Lozano and Benjamin
Nuega as well as Annie Ferrer charging them as accomplices to the murder of Salcedo.

The cases were consolidated and raffled to the Regional Trial Court, Branch XLIX, Manila. All of the accused
pleaded not guilty to the charge and trial ensued accordingly. The prosecution presented twelve witnesses,
including two eyewitnesses, Ranulfo Sumilang and Renato Banculo, and the police officers who were at the Luneta
at the time of the incident. In support of their testimonies, the prosecution likewise presented documentary evidence
consisting of newspaper accounts of the incident and various photographs taken during the mauling.

The prosecution established that on July 27, 1986, a rally was scheduled to be held at the Luneta by the Marcos
loyalists. Earlier, they applied for a permit to hold the rally but their application was denied by the authorities.
Despite this setback, three thousand of them gathered at the Rizal Monument of the Luneta at 2:30 in the afternoon
of the scheduled day. Led by Oliver Lozano and Benjamin Nuega, both members of the Integrated Bar of the
Philippines, the loyalists started an impromptu singing contest, recited prayers and delivered speeches in between.
Colonel Edgar Dula Torres, then Deputy Superintendent of the Western Police District, arrived and asked the
leaders for their permit. No permit could be produced. Colonel Dula Torres thereupon gave them ten minutes to
disperse. The loyalist leaders asked for thirty minutes but this was refused. Atty. Lozano turned towards his group
and said "Gulpihin ninyo ang lahat ng mga Cory infiltrators." Atty. Nuega added "Sige, sige gulpihin ninyo!" The
police then pushed the crowd, and used tear gas and truncheons to disperse them. The loyalists scampered away
but some of them fought back and threw stones at the police. Eventually, the crowd fled towards Maria Orosa Street
and the situation later stabilized.
1

At about 4:00 p.m., a small group of loyalists converged at the Chinese Garden, Phase III of the Luneta. There, they
saw Annie Ferrer, a popular movie starlet and supporter of President Marcos, jogging around the fountain. They

Evidence II.
approached her and informed her of their dispersal and Annie Ferrer angrily ordered them "Gulpihin ninyo and mga
Cory hecklers!" Then she continued jogging around the fountain chanting "Marcos pa rin, Marcos pa rin, Pabalikin si
Marcos, Pabalikin si Marcos, Bugbugin ang mga nakadilaw!" The loyalists replied "Bugbugin!" A few minutes later,
Annie Ferrer was arrested by the police. Somebody then shouted "Kailangang gumanti, tayo ngayon!" A commotion
ensued and Renato Banculo, a cigarette vendor, saw the loyalists attacking persons in yellow, the color of the
"Coryistas." Renato took off his yellow shirt.  He then saw a man wearing a yellow t-shirt being chased by a group of
2

persons shouting "Iyan, habulin iyan. Cory iyan!" The man in the yellow t-shirt was Salcedo and his pursuers
appeared to be Marcos loyalists. They caught Salcedo and boxed and kicked and mauled him. Salcedo tried to
extricate himself from the group but they again pounced on him and pummelled him with fist blows and kicks hitting
him on various parts of his body. Banculo saw Ranulfo Sumilang, an electrician at the Luneta, rush to Salcedo's aid.
Sumilang tried to pacify the maulers so he could extricate Salcedo from them. But the maulers pursued Salcedo
unrelentingly, boxing him with stones in their fists. Somebody gave Sumilang a loyalist tag which Sumilang showed
to Salcedo's attackers. They backed off for a while and Sumilang was able to tow Salcedo away from them. But
accused Raul Billosos emerged from behind Sumilang as another man boxed Salcedo on the head. Accused
Richard de los Santos also boxed Salcedo twice on the head and kicked him even as he was already
fallen.  Salcedo tried to stand but accused Joel Tan boxed him on the left side of his head and ear.  Accused Nilo
3 4

Pacadar punched Salcedo on his nape, shouting: "Iyan, Cory Iyan. Patayin!"  Sumilang tried to pacify Pacadar but
5

the latter lunged at the victim again. Accused Joselito Tamayo boxed Salcedo on the left jaw and kicked him as he
once more fell. Banculo saw accused Romeo Sison trip Salcedo and kick him on the head, and when he tried to
stand, Sison repeatedly boxed him.  Sumilang saw accused Gerry Neri approach the victim but did not notice what
6

he did. 7

Salcedo somehow managed to get away from his attackers and wipe off the blood from his face. He sat on some
cement steps  and then tried to flee towards Roxas boulevard to the sanctuary of the Rizal Monument but accused
8

Joel Tan and Nilo Pacadar pursued him, mauling Sumilang in the process. Salcedo pleaded for his life exclaiming
"Maawa na kayo sa akin. Tulungan ninyo ako." He cried: "Pulis, pulis. Wala bang pulis?" 9

The mauling resumed at the Rizal Monument and continued along Roxas Boulevard until Salcedo collapsed and
lost consciousness. Sumilang flagged down a van and with the help of a traffic officer, brought Salcedo to the
Medical Center Manila but he was refused admission. So they took him to the Philippine General Hospital where he
died upon arrival.

Salcedo died of "hemorrhage, intracranial traumatic." He sustained various contusions, abrasions, lacerated wounds
and skull fractures as revealed in the following post-mortem findings:

Cyanosis, lips, and nailbeds.

Contused-abrasions: 6.0 x 2.5 cm., and 3.0 x 2.4 cm., frontal region, right side; 6.8 x 4.2 cm., frontal
region, left side; 5.0 x 4.0 cm., right cheek; 5.0 x 3.5 cm., face, left side; 3.5 x 2.0 cm., nose; 4.0 x
2.1 cm., left ear, pinna; 5.0 x 4.0 cm. left suprascapular region; 6.0 x 2.8 cm., right elbow.

Abrasions: 4.0 x 2.0 cm., left elbow; 2.0 x 1.5 cm., right knee.

Lacerated wounds: 2.2 cm., over the left eyebrow; 1.0 cm., upper lip.

Hematoma, scalp; frontal region, both sides; left parietal region; right temporal region; occipital
region, right side.

Fractures, skull; occipital bone, right side; right posterior cranial fossa; right anterior cranial fossa.

Hemorrhage, subdural, extensive.

Other visceral organs, congested.

Stomach, about 1/2 filled with grayish brown food materials and fluid. 10

Evidence II.
The mauling of Salcedo was witnessed by bystanders and several press people, both local and foreign. The
press took pictures and a video of the event which became front-page news the following day, capturing
national and international attention. This prompted President Aquino to order the Capital Regional Command and
the Western Police District to investigate the incident. A reward of ten thousand pesos (P10,000.00) was put up by
Brigadier General Alfredo Lim, then Police Chief, for persons who could give information leading to the arrest of the
killers.  Several persons, including Ranulfo Sumilang and Renato Banculo, cooperated with the police, and on the
11

basis of their identification, several persons, including the accused, were apprehended and investigated.

For their defense, the principal accused denied their participation in the mauling of the victim and offered their
respective alibis. Accused Joselito Tamayo testified that he was not in any of the photographs presented by
the prosecution  because on July 27, 1986, he was in his house in Quezon City.  Gerry Neri claimed that he was
12 13

at the Luneta Theater at the time of the

incident.   Romeo Sison, a commercial photographer, was allegedly at his office near the Luneta waiting for some
14

pictures to be developed at that time.   He claimed to be afflicted with hernia impairing his mobility; he cannot run
15

normally nor do things forcefully.   Richard de los Santos admits he was at the Luneta at the time of the mauling but
16

denies hitting Salcedo.   He said that he merely watched the mauling which explains why his face appeared in some
17

of the photographs.   Unlike the other accused, Nilo Pacadar admits that he is a Marcos loyalist and a member of
18

the Ako'y Pilipino Movement and that he attended the rally on that fateful day. According to him, he saw Salcedo
being mauled and like Richard de los Santos, merely viewed the incident.   His face was in the pictures because he
19

shouted to the maulers to stop hitting Salcedo.   Joel Tan also testified that he tried to pacify the maulers because
20

he pitied Salcedo. The maulers however ignored him.  21

The other accused, specifically Attys. Lozano and Nuega and Annie Ferrer opted not to testify in their defense.

On December 16, 1988, the trial court rendered a decision finding Romeo Sison, Nilo Pacadar, Joel Tan, Richard de
los Santos and Joselito Tamayo guilty as principals in the crime of murder qualified by treachery and sentenced
them to 14 years 10 months and 20 days of reclusion temporal as minimum to 20 years of reclusion temporal as
maximum. Annie Ferrer was likewise convicted as an accomplice. The court, however, found that the prosecution
failed to prove the guilt of the other accused and thus acquitted Raul Billosos, Gerry Nery, Rolando Fernandez,
Oliver Lozano and Benjamin Nuega. The dispositive portion of the decision reads as follows:

WHEREFORE, judgement is hereby rendered in the aforementioned cases as follows:

1. In "People versus Raul Billosos and Gerry Nery," Criminal Case No. 86-47322, the Court finds
that the Prosecution failed to prove the guilt of the two (2) Accused beyond reasonable doubt for the
crime charged and hereby acquits them of said charge;

2. In "People versus Romeo Sison, et al.," Criminal Case No. 86-47617, the Court finds the Accused
Romeo Sison, Nilo Pacadar and Joel Tan, guilty beyond reasonable doubt, as principals for the
crime of Murder, defined in Article 248 of the Revised Penal Code, and, there being no other
mitigating or aggravating circumstances, hereby imposes on each of them an indeterminate penalty
of from FOURTEEN (14)YEARS, TEN (10) MONTHS and TWENTY (20) DAYS, of Reclusion
Temporal, as minimum, to TWENTY (20) DAYS, of Reclusion Temporal, as minimum, to TWENTY
(20) YEARS of Reclusion Temporal, as Maximum;

3. In "People versus Richard de los Santos," Criminal Case No. 86-47790, the Court finds the
Accused Richard de los Santos guilty beyond reasonable doubt as principal for the crime of Murder
defined in Article 248 of the Revised Penal Code and, there being no other extenuating
circumstances, the Court hereby imposes on him an indeterminate penalty of from FOURTEEN (14)
YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of Reclusion Temporal, as Minimum, to
TWENTY (20) YEARS of Reclusion Temporal as Maximum;

4. In "People versus Joselito Tamayo," Criminal Case No. 86-48538 the Court finds the Accused
guilty beyond reasonable doubt as principal, for the crime of "Murder" defined in Article 248 of the
Revised Penal Code and hereby imposes on him an indeterminate penalty of from FOURTEEN (14)
YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of Reclusion Temporal, as Minimum, to
TWENTY (20) YEARS of Reclusion Temporal, as Maximum;
Evidence II.
 5. In "People versus Rolando Fernandez," Criminal Case No. 86-4893l, the Court finds that the
Prosecution failed to prove the guilt of the Accused for the crime charged beyond reasonable doubt
and hereby acquits him of said charge;

6. In "People versus Oliver Lozano, et al.," Criminal Case No. 86-49007, the Court finds that the
Prosecution failed to prove the guilt of the Accused beyond reasonable doubt for the crime charged
and hereby acquits them of said charge;

7. In "People versus Annie Ferrer," Criminal Case No. 86-49008, the Court finds the said Accused
guilty beyond reasonable doubt, as accomplice to the crime of Murder under Article 18 in relation to
Article 248 of the Revised Penal Code and hereby imposes on her an indeterminate penalty of NINE
(9) YEARS and FOUR (4) MONTHS of Prision Mayor, as Minimum to TWELVE (12) YEARS, FIVE
(5) MONTHS and ELEVEN (11) DAYS of Reclusion Temporal, as Maximum.

The Accused Romeo Sison, Nilo Pacadar, Richard de los Santos, Joel Tan, Joselito Tamayo and
Annie Ferrer are hereby ordered to pay, jointly and severally, to the heirs of Stephen Salcedo the
total amount of P74,000.00 as actual damages and the amount of P30,000.00 as moral and
exemplary damages, and one-half (1/2) of the costs of suit.

The period during which the Accused Nilo Pacadar, Romeo Sison, Joel Tan, Richard de los Santos
and Joselito Tamayo had been under detention during the pendency of these cases shall be credited
to them provided that they agreed in writing to abide by and comply strictly with the rules and
regulations of the City Jail.

The Warden of the City Jail of Manila is hereby ordered to release the Accused Gerry Nery, Raul
Billosos and Rolando Fernandez from the City Jail unless they are being detained for another cause
or charge.

The Petition for Bail of the Accused Rolando Fernandez has become moot and academic. The
Petition for Bail of the Accused Joel Tan, Romeo Sison and Joselito Tamayo is denied for lack of
merit.

The bail bonds posted by the Accused Oliver Lozano and Benjamin Nuega are hereby cancelled.  22

On appeal, the Court of Appeals   on December 28, 1992, modified the decision of the trial court by acquitting Annie
23

Ferrer but increasing the penalty of the rest of the accused, except for Joselito Tamayo, to reclusion perpetua. The
appellate court found them guilty of murder qualified by abuse of superior strength, but convicted Joselito Tamayo of
homicide because the information against him did not allege the said qualifying circumstance. The dispositive
portion of the decision reads:

PREMISES CONSIDERED, the decision appealed from is hereby MODIFIED as follows:

1. Accused-appellants Romeo Sison y Mejia, Nilo Pacadar y Abe, Joel Tan y Mostero and Richard
de los Santos are hereby found GUILTY beyond reasonable doubt of Murder and are each hereby
sentenced to suffer the penalty of Reclusion Perpetua;

2. Accused-appellant Joselito Tamayo y Oria is hereby found GUILTY beyond reasonable doubt of
the crime of Homicide with the generic aggravating circumstance of abuse of superior strength and,
as a consequence, an indeterminate penalty of TWELVE (12) YEARS of prision mayor as Minimum
to TWENTY (20) YEARS of reclusion temporal as Maximum is hereby imposed upon him;

3. Accused-appellant Annie Ferrer is hereby ACQUITTED of being an accomplice to the crime of

Murder.

Evidence II.
 CONSIDERING that the penalty of Reclusion Perpetua has been imposed in the instant
consolidated cases, the said cases are now hereby certified to the Honorable Supreme Court for
review.  24

Petitioners filed G.R. Nos. 108280-83 under Rule 45 of the Revised Rules of Court inasmuch as Joselito Tamayo
was not sentenced to reclusion perpetua. G.R. Nos. 114931-33 was certified to us for automatic review of the
decision of the Court of Appeals against the four accused-appellants sentenced to reclusion perpetua.

Before this court, accused-appellants assign the following errors:

THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT NOTED THAT THE
ACCUSED FAILED TO CITE ANYTHING ON RECORD TO SUPPORT THEIR AVERMENT THAT
THERE WERE NO WITNESSES WHO HAVE COME FORWARD TO IDENTIFY THE PERSONS
RESPONSIBLE FOR THE DEATH OF STEPHEN SALCEDO.

II

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN GIVING CREDENCE TO THE

UNRELIABLE, DOUBTFUL, SUSPICIOUS AND INCONCLUSIVE TESTIMONIES OF
PROSECUTION WITNESS RANULFO SUMILANG.

III

THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN FINDING THE ACCUSED

GUILTY WHEN THERE WAS NO EVIDENCE TO PROVE THAT ANY OF THE ACCUSED
CARRIED A HARD AND BLUNT INSTRUMENT, THE ADMITTED CAUSE OF THE HEMORRHAGE
RESULTING IN THE DEATH OF THE DECEASED.

IV

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THERE EXISTS
CONSPIRACY AMONG THE PRINCIPAL ACCUSED.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE CRIME
COMMITTED IS MURDER AND NOT DEATH (HOMICIDE) CAUSED IN A TUMULTUOUS
AFFRAY.  25

In their additional brief, appellants contend that:

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN REACHING A CONCLUSION OF

FACT UTILIZING SPECULATIONS, SURMISES, NON-SEQUITUR CONCLUSIONS, AND EVEN
THE DISPUTED DECISION OF THE TRIAL COURT, TO UPHOLD THE VALIDITY OF THE VERY
SAME JUDGMENT, ALL CONTRARY TO THE RULES OF EVIDENCE.

II

THE HONORABLE COURT OF APPEALS ERRED IN ADMITTING EXHIBITS "D", "G", "O", "P",
"V", TO "V-48", "W" TO "W-13", ALL OF WHICH WERE NOT PROPERLY IDENTIFIED.

Evidence II.
 III

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN CONCLUDING THAT

CONSPIRACY EXISTED IN THE CASE AT BAR DISREGARDING ALTOGETHER THE SETTLED
JURISPRUDENCE ON THE MATTER.

IV

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE CRIME
COMMITTED WAS MURDER, NOT DEATH (HOMICIDE) IN TUMULTUOUS AFFRAY
SIDESTEPPING IN THE PROCESS THE FACTUAL GROUNDS SURROUNDING THE
INCIDENT.  26

Appellants mainly claim that the Court of Appeals erred in sustaining the testimonies of the two in
prosecution eyewitnesses, Ranulfo Sumilang and Renato Banculo, because they are unreliable, doubtful
and do not deserve any credence. According to them, the testimonies of these two witnesses are suspect
because they surfaced only after a reward was announced by General Lim. Renato Banculo even submitted
three sworn statements to the police geared at providing a new or improved version of the incident. On the
witness stand, he mistakenly identified a detention prisoner in another case as accused Rolando
Fernandez.   Ranulfo Sumilang was evasive and unresponsive prompting the trial court to reprimand him
27

several times.  28

There is no proof that Banculo or Sumilang testified because of the reward announced by General Lim, much less
that both or either of them ever received such reward from the government. On the contrary, the evidence shows
that Sumilang reported the incident to the police and submitted his sworn statement immediately two hours after the
mauling, even before announcement of any reward.   He informed the police that he would cooperate with them and
29

identify Salcedo's assailants if he saw them again.  30

The fact that Banculo executed three sworn statements does not make them and his testimony incredible. The
sworn statements were made to identify more suspects who were apprehended during the investigation of Salcedo's
death. 31

The records show that Sumilang was admonished several times by the trial court on the witness stand for being
argumentative and evasive.   This is not enough reason to reject Sumilang's testimony for he did not exhibit this
32

undesirable conduct all throughout his testimony. On the whole, his testimony was correctly given credence by the
trial court despite his evasiveness at some instances. Except for compelling reasons, we cannot disturb the way trial
courts calibrate the credence of witnesses considering their visual view of the demeanor of witnesses when on the
witness stand. As trial courts, they can best appreciate the verbal and non-verbal dimensions of a witness'
testimony.

Banculo's mistake in identifying another person as one of the accused does not make him an entirely untrustworthy
witness.   It does not make his whole testimony a falsity. An honest mistake is not inconsistent with a truthful
33

testimony. Perfect testimonies cannot be expected from persons with imperfect senses. In the court's discretion,
therefore, the testimony of a witness can be believed as to some facts but disbelieved with respect to the others.  34

We sustain the appellate and trial courts' findings that the witnesses' testimonies corroborate each other on all
important and relevant details of the principal occurrence. Their positive identification of all petitioners jibe with each
other and their narration of the events are supported by the medical and documentary evidence on record.

Dr. Roberto Garcia, the medico-legal officer of the National Bureau of Investigation, testified that the victim had
various wounds on his body which could have been inflicted by pressure from more than one hard object.   The 35

contusions and abrasions found could have been caused by punches, kicks and blows from rough stones.   The 36

fatal injury of intracranial hemorrhage was a result of fractures in Salcedo's skull which may have been caused by
contact with a hard and blunt object such as fistblows, kicks and a blunt wooden instrument.  37

Evidence II.
Appellants do not deny that Salcedo was mauled, kicked and punched. Sumilang in fact testified that Salcedo was
pummeled by his assailants with stones in their hands.  38

Appellants also contend that although the appellate court correctly disregarded Exhibits "D," "G," and "P," it
erroneously gave evidentiary weight to Exhibits "O," "V," "V-1" to "V-48," "W," "W-1" to "W-13."   Exhibit "O" is the
39

Joint Affidavit of Pat. Flores and Pat. Bautista, the police intelligence-operatives who witnessed the rally and
subsequent dispersal operation. Pat. Flores properly identified Exhibit "O" as his sworn statement and in fact gave
testimony corroborating the contents thereof.   Besides, the Joint Affidavit merely reiterates what the other
40

prosecution witnesses testified to. Identification by Pat. Bautista is a surplusage. If appellants wanted to impeach the
said affidavit, they should have placed Pat. Flores on the witness stand.

Exhibits "V," "V-1" to "V-48" are photographs taken of the victim as he was being mauled at the Luneta —
starting from a grassy portion to the pavement at the Rizal Monument and along Roxas Boulevard,   — as 41

he was being chased by his assailants   and as he sat pleading with his assailants.   Exhibits "W", "W-1" to
42 43

"W-13" are photographs of Salcedo and the mauling published in local newspapers and magazines such as
the Philippine Star,   Mr. and Ms. Magazine,   Philippine Daily Inquirer,   and the Malaya.   The admissibility
44 45 46 47

of these photographs is being questioned by appellants for lack of proper identification by the person or
persons who took the same.

The rule in this jurisdiction is that photographs, when presented in evidence, must be identified by the
photographer as to its production and testified as to the circumstances under which they were
produced.   The value of this kind of evidence lies in its being a correct representation or reproduction of
48

the original,   and its admissibility is determined by its accuracy in portraying the scene at the time of the
49

crime.   The photographer, however, is not the only witness who can identify the pictures he has
50

taken.   The correctness of the photograph as a faithful representation of the object portrayed can
51

be proved prima facie, either by the testimony of the person who made it or by other competent witnesses,
after which the court can admit it subject to impeachment as to its accuracy.   Photographs, therefore, can
52

be identified by the photographer or by any other competent witness who can testify to its exactness and
accuracy.  53

This court notes that when the prosecution offered the photographs as part of its evidence, appellants, through
counsel Atty. Alfredo Lazaro, Jr. objected to their admissibility for lack of proper identification.   However, when the
54

accused presented their evidence, Atty. Winlove Dumayas, counsel for accused Joselito Tamayo and Gerry Neri
used Exhibits "V", "V-1" to "V-48" to prove that his clients were not in any of the pictures and therefore could not
have participated in the mauling of the victim.   The photographs were adopted by appellant Joselito Tamayo and
55

accused Gerry Neri as part of the defense exhibits. And at this hearing, Atty. Dumayas represented all the other
accused per understanding with their respective counsels, including Atty. Lazaro, who were absent. At subsequent
hearings, the prosecution used the photographs to cross-examine all the accused who took the witness stand.   No 56

objection was made by counsel for any of the accused, not until Atty. Lazaro appeared at the third hearing and
interposed a continuing objection to their admissibility.  57

The objection of Atty. Lazaro to the admissibility of the photographs is anchored on the fact that the person
who took the same was not presented to identify them. We rule that the use of these photographs by some
of the accused to show their alleged non-participation in the crime is an admission of the exactness and
accuracy thereof. That the photographs are faithful representations of the mauling incident was affirmed
when appellants Richard de los Santos, Nilo Pacadar and Joel Tan identified themselves therein and gave
reasons for their presence thereat.  58

An analysis of the photographs vis-a-vis the accused's testimonies reveal that only three of the appellants, namely,
Richard de los Santos, Nilo Pacadar and Joel Tan could be readily seen in various belligerent poses lunging or
hovering behind or over the victim.   Appellant Romeo Sison appears only once and he, although afflicted with
59

hernia is shown merely running after the

victim.  Appellant Joselito Tamayo was not identified in any of the pictures. The absence of the two appellants in
60

the photographs does not exculpate them. The photographs did not capture the entire sequence of the
killing of Salcedo but only segments thereof. While the pictures did not record Sison and Tamayo hitting
Salcedo, they were unequivocally identified by Sumilang and
Banculo Appellants' denials and alibis cannot overcome their eyeball identification.
61

Evidence II.
Appellants claim that the lower courts erred in finding the existence of conspiracy among the principal accused and
in convicting them of murder qualified by abuse of superior strength, not death in tumultuous affray.

Death in a tumultuous affray is defined in Article 251 of the Revised Penal code as follows:

Art. 251. Death caused in a tumultuous affray. — When, while several persons, not composing
groups organized for the common purpose of assaulting and attacking each other reciprocally,
quarrel and assault each other in a confused and tumultuous manner, and in the course of the affray
someone is killed, and it cannot be ascertained who actually killed the deceased, but the person or
persons who inflicted serious physical injuries can be identified, such person or persons shall be
punished by prison mayor.

If it cannot be determined who inflicted the serious physical injuries on the deceased, the penalty
of prision correccional in its medium and maximum periods shall be imposed upon all those who
shall have used violence upon the person of the victim.

For this article to apply, it must be established that: (1) there be several persons; (2) that they did not
compose groups organized for the common purpose of assaulting and attacking each other reciprocally; (3)
these several persons quarrelled and assaulted one another in a confused and tumultuous manner; (4)
someone was killed in the course of the affray; (5) it cannot be ascertained who actually killed the deceased;
and (6) that the person or persons who inflicted serious physical injuries or who used violence can be
identified.62

A tumultuous affray takes place when a quarrel occurs between several persons and they engage in a confused and
tumultuous affray, in the course of which some person is killed or wounded and the author thereof cannot be
ascertained.63

The quarrel in the instant case, if it can be called a quarrel, was between one distinct group and one individual.
Confusion may have occurred because of the police dispersal of the rallyists, but this confusion subsided eventually
after the loyalists fled to Maria Orosa Street. It was only a while later after said dispersal that one distinct group
identified as loyalists picked on one defenseless individual and attacked him repeatedly, taking turns in inflicting
punches, kicks and blows on him. There was no confusion and tumultuous quarrel or affray, nor was there a
reciprocal aggression at this stage of the incident.64

As the lower courts found, the victim's assailants were numerous by as much as fifty in number  and were armed
65

with stones with which they hit the victim. They took advantage of their superior strength and excessive force and
frustrated any attempt by Salcedo to escape and free himself. They followed Salcedo from the Chinese Garden to
the Rizal Monument several meters away and hit him mercilessly even when he was already fallen on the ground.
There was a time when Salcedo was able to get up, prop himself against the pavement and wipe off the blood from
his face. But his attackers continued to pursue him relentlessly. Salcedo could not defend himself nor could he find
means to defend himself. Sumilang tried to save him from his assailants but they continued beating him, hitting
Sumilang in the process. Salcedo pleaded for mercy but they ignored his pleas until he finally lost consciousness.
The deliberate and prolonged use of superior strength on a defenseless victim qualifies the killing to murder.

Treachery as a qualifying circumstance cannot be appreciated in the instant case. There is no proof that the attack
on Salcedo was deliberately and consciously chosen to ensure the assailants' safety from any defense the victim
could have made. True, the attack on Salcedo was sudden and unexpected but it was apparently because of the
fact that he was wearing a yellow t-shirt or because he allegedly flashed the "Laban" sign against the rallyists,
taunting them into mauling him. As the appellate court well found, Salcedo had the opportunity to sense the temper
of the rallyists and run away from them but he, unfortunately, was overtaken by them. The essence of treachery is
the sudden and unexpected attack without the slightest provocation on the part of the person being attacked.  66

The qualifying circumstance of evident premeditation was alleged in the information against Joselito Tamayo.
Evident premeditation cannot be appreciated in this case because the attack against Salcedo was sudden and
spontaneous, spurred by the raging animosity against the so-called "Coryistas." It was not preceded by cool thought
and reflection.

Evidence II.
We find however the existence of a conspiracy among appellants. At the time they were committing the crime, their
actions impliedly showed a unity of purpose among them, a concerted effort to bring about the death of Salcedo.
Where a conspiracy existed and is proved, a showing as to who among the conspirators inflicted the fatal wound is
not required to sustain a conviction.   Each of the conspirators is liable for all acts of the others regardless of the
67

intent and character of their participation, because the act of one is the act of all. 
68

The trial court awarded the heirs of Salcedo P74,000.00 as actual damages, P30,000.00 as moral and exemplary
damages, and one half of the costs of the suit. At the time he died on July 27, 1986, Salcedo was twenty three years
old and was set to leave on August 4, 1986 for employment in Saudi Arabia.   The reckless disregard for such a
69

young person's life and the anguish wrought on his widow and three small children,   warrant an increase in moral
70

damages from P30,000.00 to P100,000.00. The indemnity of P50,000.00 must also be awarded for the death of the
victim.
71

IN VIEW WHEREOF, the decision appealed from is hereby affirmed and modified as follows:

1. Accused-appellants Romeo Sison, Nilo Pacadar, Joel Tan and Richard de los Santos are
found GUILTY beyond reasonable doubt of Murder without any aggravating or mitigating
circumstance and are each hereby sentenced to suffer the penalty of reclusion perpetua;

2. Accused-appellant Joselito Tamayo is found GUILTY beyond reasonable doubt of the crime of
Homicide with the generic aggravating circumstance of abuse of superior strength and, as a
consequence, he is sentenced to an indeterminate penalty of TWELVE (12) YEARS of prision
mayor as minimum to TWENTY (20) YEARS of reclusion temporal as maximum;

3. All accused-appellants are hereby ordered to pay jointly and severally the heirs of Stephen
Salcedo the following amounts:

(a) P74,000.00 as actual damages;

(b) P100,000.00 as moral damages; and

(c) P50,000.00 as indemnity for the death of the victim.

Evidence II.
22.) G.R. No. L-21438             September 28, 1966 (ISSUE HERE IS WHETHER THE FIRST CLASS TICKET,
AS TESTIFIED BY THSESE OF AIR FRANC, WAS SUBJECT TO ITS AVAILABILITY. COURT RULED NO. THE
TICKET DID NOT PROVIDE FOR ANY RESERVATIONS OR CONDITIONS)

AIR FRANCE, petitioner,
vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.

Lichauco, Picazo and Agcaoili for petitioner.

Bengzon Villegas and Zarraga for respondent R. Carrascoso.

SANCHEZ, J.:

The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso P25,000.00 by way
of moral damages; P10,000.00 as exemplary damages; P393.20 representing the difference in fare between first
class and tourist class for the portion of the trip Bangkok-Rome, these various amounts with interest at the legal
rate, from the date of the filing of the complaint until paid; plus P3,000.00 for attorneys' fees; and the costs of suit.

On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket from P393.20
to P383.10, and voted to affirm the appealed decision "in all other respects", with costs against petitioner.

The case is now before us for review on certiorari.

The facts declared by the Court of Appeals as " fully supported by the evidence of record", are:

Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for
Lourdes on March 30, 1958.

On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc.,
issued to plaintiff a "first class" round trip airplane ticket from Manila to Rome. From Manila to
Bangkok, plaintiff travelled in "first class", but at Bangkok, the Manager of the defendant airline
forced plaintiff to vacate the "first class" seat that he was occupying because, in the words of the
witness Ernesto G. Cuento, there was a "white man", who, the Manager alleged, had a "better right"
to the seat. When asked to vacate his "first class" seat, the plaintiff, as was to be expected, refused, and
told defendant's Manager that his seat would be taken over his dead body; a commotion ensued, and,
according to said Ernesto G. Cuento, "many of the Filipino passengers got nervous in the tourist class; when
they found out that Mr. Carrascoso was having a hot discussion with the white man [manager], they came all
across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to the white man" (Transcript, p. 12,
Hearing of May 26, 1959); and plaintiff reluctantly gave his "first class" seat in the plane. 3

1. The trust of the relief petitioner now seeks is that we review "all the findings"  4 of respondent Court of Appeals.
Petitioner charges that respondent court failed to make complete findings of fact on all the issues properly laid
before it. We are asked to consider facts favorable to petitioner, and then, to overturn the appellate court's decision.

Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of record without
expressing therein clearly and distinctly the facts and the law on which it is based".  5 This is echoed in the statutory
demand that a judgment determining the merits of the case shall state "clearly and distinctly the facts and the law on
which it is based"; 6 and that "Every decision of the Court of Appeals shall contain complete findings of fact on all
issues properly raised before it". 7

A decision with absolutely nothing to support it is a nullity. It is open to direct attack.  8 The law, however, solely
insists that a decision state the "essential ultimate facts" upon which the court's conclusion is drawn.  9 A court of
Evidence II.
justice is not hidebound to write in its decision every bit and piece of evidence 10 presented by one party and the
other upon the issues raised. Neither is it to be burdened with the obligation "to specify in the sentence the
facts" which a party "considered as proved". 11 This is but a part of the mental process from which the Court draws
the essential ultimate facts. A decision is not to be so clogged with details such that prolixity, if not confusion, may
result. So long as the decision of the Court of Appeals contains the necessary facts to warrant its conclusions, it is
no error for said court to withhold therefrom "any specific finding of facts with respect to the evidence for the
defense". Because as this Court well observed, "There is no law that so requires". 12 Indeed, "the mere failure to
specify (in the decision) the contentions of the appellant and the reasons for refusing to believe them is not sufficient
to hold the same contrary to the requirements of the provisions of law and the Constitution". It is in this setting that
in Manigque, it was held that the mere fact that the findings "were based entirely on the evidence for the prosecution
without taking into consideration or even mentioning the appellant's side in the controversy as shown by his own
testimony", would not vitiate the judgment. 13 If the court did not recite in the decision the testimony of each witness
for, or each item of evidence presented by, the defeated party, it does not mean that the court has overlooked such
testimony or such item of evidence. 14 At any rate, the legal presumptions are that official duty has been regularly
performed, and that all the matters within an issue in a case were laid before the court and passed upon by it. 15

Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written statement of the
ultimate facts as found by the court ... and essential to support the decision and judgment rendered thereon". 16 They
consist of the court's "conclusions" with respect to the determinative facts in issue". 17 A question of law, upon the
other hand, has been declared as "one which does not call for an examination of the probative value of the evidence
presented by the parties." 18

2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the Court of
Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the business of this Court to alter the
facts or to review the questions of fact. 20

With these guideposts, we now face the problem of whether the findings of fact of the Court of Appeals support its
judgment.

3. Was Carrascoso entitled to the first class seat he claims?

It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first class ticket. But
petitioner asserts that said ticket did not represent the true and complete intent and agreement of the
parties; that said respondent knew that he did not have confirmed reservations for first class on any
specific flight, although he had tourist class protection; that, accordingly, the issuance of a first class ticket
was no guarantee that he would have a first class ride, but that such would depend upon the availability of
first class seats.

These are matters which petitioner has thoroughly presented and discussed in its brief before the Court of Appeals
under its third assignment of error, which reads: "The trial court erred in finding that plaintiff had confirmed
reservations for, and a right to, first class seats on the "definite" segments of his journey, particularly that from
Saigon to Beirut". 21

And, the Court of Appeals disposed of this contention thus:

Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no guarantee
that the passenger to whom the same had been issued, would be accommodated in the first-class
compartment, for as in the case of plaintiff he had yet to make arrangements upon arrival at every station for
the necessary first-class reservation. We are not impressed by such a reasoning. We cannot understand
how a reputable firm like defendant airplane company could have the indiscretion to give out tickets it never
meant to honor at all. It received the corresponding amount in payment of first-class tickets and yet it
allowed the passenger to be at the mercy of its employees. It is more in keeping with the ordinary course of
business that the company should know whether or riot the tickets it issues are to be honored or not. 22

Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention, thus:

Evidence II.
On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question. Apart from
his testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and defendant's own
witness, Rafael Altonaga, confirmed plaintiff's testimony and testified as follows:

Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?

A. That the space is confirmed.

Q. Confirmed for first class?

A. Yes, "first class". (Transcript, p. 169)

xxx     xxx     xxx

Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that
although plaintiff paid for, and was issued a "first class" airplane ticket, the ticket was subject to
confirmation in Hongkong. The court cannot give credit to the testimony of said witnesses. Oral evidence
cannot prevail over written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and "C-1" belie the
testimony of said witnesses, and clearly show that the plaintiff was issued, and paid for, a first class ticket
without any reservation whatever.

Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the reservation for a
"first class" accommodation for the plaintiff was confirmed. The court cannot believe that after such confirmation
defendant had a verbal understanding with plaintiff that the "first class" ticket issued to him by defendant would be
subject to confirmation in Hongkong. 23

We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount refunded on
Carrascoso's ticket, the decision of the Court of First Instance was affirmed by the Court of Appeals in all other
respects. We hold the view that such a judgment of affirmance has merged the judgment of the lower
court. 24 Implicit in that affirmance is a determination by the Court of Appeals that the proceeding in the Court of First
Instance was free from prejudicial error and "all questions raised by the assignments of error and all questions that
might have been raised are to be regarded as finally adjudicated against the appellant". So also, the judgment
affirmed "must be regarded as free from all error". 25 We reached this policy construction because nothing in the
decision of the Court of Appeals on this point would suggest that its findings of fact are in any way at war with those
of the trial court. Nor was said affirmance by the Court of Appeals upon a ground or grounds different from those
which were made the basis of the conclusions of the trial court. 26

If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat, notwithstanding
the fact that seat availability in specific flights is therein confirmed, then an air passenger is placed in the
hollow of the hands of an airline. What security then can a passenger have? It will always be an easy matter
for an airline aided by its employees, to strike out the very stipulations in the ticket, and say that there was
a verbal agreement to the contrary. What if the passenger had a schedule to fulfill? We have long learned
that, as a rule, a written document speaks a uniform language; that spoken word could be notoriously
unreliable. If only to achieve stability in the relations between passenger and air carrier, adherence to the ticket so
issued is desirable. Such is the case here. The lower courts refused to believe the oral evidence intended to defeat
the covenants in the ticket.

The foregoing are the considerations which point to the conclusion that there are facts upon which the Court of
Appeals predicated the finding that respondent Carrascoso had a first class ticket and was entitled to a first class
seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the flight. 27 We perceive no "welter of distortions
by the Court of Appeals of petitioner's statement of its position", as charged by petitioner. 28 Nor do we subscribe to
petitioner's accusation that respondent Carrascoso "surreptitiously took a first class seat to provoke an issue". 29 And
this because, as petitioner states, Carrascoso went to see the Manager at his office in Bangkok "to confirm my seat
and because from Saigon I was told again to see the Manager". 30 Why, then, was he allowed to take a first class
seat in the plane at Bangkok, if he had no seat? Or, if another had a better right to the seat?

Evidence II.
4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that Carrascoso's
action is planted upon breach of contract; that to authorize an award for moral damages there must be an averment
of fraud or bad faith;31 and that the decision of the Court of Appeals fails to make a finding of bad faith. The pivotal
allegations in the complaint bearing on this issue are:

3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for a valuable
consideration, the latter acting as general agents for and in behalf of the defendant, under which said
contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff, First Class passage on defendant's
plane during the entire duration of plaintiff's tour of Europe with Hongkong as starting point up to and until
plaintiff's return trip to Manila, ... .

4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to Bangkok, defendant
furnished to the plaintiff First Class accommodation but only after protestations, arguments and/or insistence
were made by the plaintiff with defendant's employees.

5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff
only Tourist Class accommodations from Bangkok to Teheran and/or Casablanca, ... the plaintiff has
been compelled by defendant's employees to leave the First Class accommodation berths at Bangkok after
he was already seated.

6. That consequently, the plaintiff, desiring no repetition of the inconvenience and embarrassments brought
by defendant's breach of contract was forced to take a Pan American World Airways plane on his return trip
from Madrid to Manila.32

xxx     xxx     xxx

2. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid, plaintiff suffered
inconveniences, embarrassments, and humiliations, thereby causing plaintiff mental anguish, serious anxiety,
wounded feelings, social humiliation, and the like injury, resulting in moral damages in the amount of P30,000.00. 33

xxx     xxx     xxx

The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a first class
passage covering, amongst others, the Bangkok-Teheran leg; Second, That said contract was breached when
petitioner failed to furnish first class transportation at Bangkok; and Third, that there was bad faith when petitioner's
employee compelled Carrascoso to leave his first class accommodation berth "after he was already, seated" and to
take a seat in the tourist class, by reason of which he suffered inconvenience, embarrassments and humiliations,
thereby causing him mental anguish, serious anxiety, wounded feelings and social humiliation, resulting in moral
damages. It is true that there is no specific mention of the term bad faith in the complaint. But, the inference of bad
faith is there, it may be drawn from the facts and circumstances set forth therein. 34 The contract was averred to
establish the relation between the parties. But the stress of the action is put on wrongful expulsion.

Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed petitioner on guard
on what Carrascoso intended to prove: That while sitting in the plane in Bangkok, Carrascoso was ousted by
petitioner's manager who gave his seat to a white man; 35 and (b) evidence of bad faith in the fulfillment of the
contract was presented without objection on the part of the petitioner. It is, therefore, unnecessary to inquire as to
whether or not there is sufficient averment in the complaint to justify an award for moral damages. Deficiency in the
complaint, if any, was cured by the evidence. An amendment thereof to conform to the evidence is not even
required. 36 On the question of bad faith, the Court of Appeals declared:

That the plaintiff was forced out of his seat in the first class compartment of the plane belonging to the
defendant Air France while at Bangkok, and was transferred to the tourist class not only without his consent
but against his will, has been sufficiently established by plaintiff in his testimony before the court,
corroborated by the corresponding entry made by the purser of the plane in his notebook which notation
reads as follows:

Evidence II.
 "First-class passenger was forced to go to the tourist class against his will, and that the captain
refused to intervene",

and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The captain of the
plane who was asked by the manager of defendant company at Bangkok to intervene even refused to do so.
It is noteworthy that no one on behalf of defendant ever contradicted or denied this evidence for the plaintiff.
It could have been easy for defendant to present its manager at Bangkok to testify at the trial of the case, or
yet to secure his disposition; but defendant did neither. 37

The Court of appeals further stated —

Neither is there evidence as to whether or not a prior reservation was made by the white man. Hence, if the
employees of the defendant at Bangkok sold a first-class ticket to him when all the seats had already been
taken, surely the plaintiff should not have been picked out as the one to suffer the consequences and to be
subjected to the humiliation and indignity of being ejected from his seat in the presence of others. Instead of
explaining to the white man the improvidence committed by defendant's employees, the manager adopted
the more drastic step of ousting the plaintiff who was then safely ensconsced in his rightful seat. We are
strengthened in our belief that this probably was what happened there, by the testimony of defendant's
witness Rafael Altonaga who, when asked to explain the meaning of the letters "O.K." appearing on the
tickets of plaintiff, said "that the space is confirmed for first class. Likewise, Zenaida Faustino, another
witness for defendant, who was the chief of the Reservation Office of defendant, testified as follows:

"Q How does the person in the ticket-issuing office know what reservation the passenger has
arranged with you?

A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19, 1959)

In this connection, we quote with approval what the trial Judge has said on this point:

Why did the, using the words of witness Ernesto G. Cuento, "white man" have a "better right" to the
seat occupied by Mr. Carrascoso? The record is silent. The defendant airline did not prove "any
better", nay, any right on the part of the "white man" to the "First class" seat that the plaintiff was
occupying and for which he paid and was issued a corresponding "first class" ticket.

If there was a justified reason for the action of the defendant's Manager in Bangkok, the defendant
could have easily proven it by having taken the testimony of the said Manager by deposition, but
defendant did not do so; the presumption is that evidence willfully suppressed would be adverse if
produced [Sec. 69, par (e), Rules of Court]; and, under the circumstances, the Court is constrained
to find, as it does find, that the Manager of the defendant airline in Bangkok not merely asked but
threatened the plaintiff to throw him out of the plane if he did not give up his "first class" seat
because the said Manager wanted to accommodate, using the words of the witness Ernesto G.
Cuento, the "white man".38

It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not use the term
"bad faith". But can it be doubted that the recital of facts therein points to bad faith? The manager not only
prevented Carrascoso from enjoying his right to a first class seat; worse, he imposed his arbitrary will; he
forcibly ejected him from his seat, made him suffer the humiliation of having to go to the tourist class
compartment - just to give way to another passenger whose right thereto has not been established.
Certainly, this is bad faith. Unless, of course, bad faith has assumed a meaning different from what is
understood in law. For, "bad faith" contemplates a "state of mind affirmatively operating with furtive design or
with some motive of self-interest or will or for ulterior purpose." 39

And if the foregoing were not yet sufficient, there is the express finding of bad faith in the judgment of the
Court of First Instance, thus:

Evidence II.
 The evidence shows that the defendant violated its contract of transportation with plaintiff in bad
faith, with the aggravating circumstances that defendant's Manager in Bangkok went to the extent of
threatening the plaintiff in the presence of many passengers to have him thrown out of the airplane
to give the "first class" seat that he was occupying to, again using the words of the witness Ernesto
G. Cuento, a "white man" whom he (defendant's Manager) wished to accommodate, and the
defendant has not proven that this "white man" had any "better right" to occupy the "first class" seat
that the plaintiff was occupying, duly paid for, and for which the corresponding "first class" ticket was
issued by the defendant to him. 40

5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is well settled in
law. 41 For the willful malevolent act of petitioner's manager, petitioner, his employer, must answer. Article 21 of the
Civil Code says:

ART. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals,
good customs or public policy shall compensate the latter for the damage.

In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the provisions of Article
2219 (10), Civil Code, moral damages are recoverable. 42

6. A contract to transport passengers is quite different in kind and degree from any other contractual relation. 43 And
this, because of the relation which an air-carrier sustains with the public. Its business is mainly with the travelling
public. It invites people to avail of the comforts and advantages it offers. The contract of air carriage, therefore,
generates a relation attended with a public duty. Neglect or malfeasance of the carrier's employees, naturally, could
give ground for an action for damages.

Passengers do not contract merely for transportation. They have a right to be treated by the carrier's employees
with kindness, respect, courtesy and due consideration. They are entitled to be protected against personal
misconduct, injurious language, indignities and abuses from such employees. So it is, that any rule or discourteous
conduct on the part of employees towards a passenger gives the latter an action for damages against the carrier. 44

Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of contract and a tort,
giving a right of action for its agent in the presence of third persons to falsely notify her that the check was worthless
and demand payment under threat of ejection, though the language used was not insulting and she was not
ejected." 46 And this, because, although the relation of passenger and carrier is "contractual both in origin and
nature" nevertheless "the act that breaks the contract may be also a tort". 47 And in another case, "Where a
passenger on a railroad train, when the conductor came to collect his fare tendered him the cash fare to a point
where the train was scheduled not to stop, and told him that as soon as the train reached such point he would pay
the cash fare from that point to destination, there was nothing in the conduct of the passenger which justified the
conductor in using insulting language to him, as by calling him a lunatic," 48 and the Supreme Court of South
Carolina there held the carrier liable for the mental suffering of said passenger. 1awphîl.nèt

Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's action as we have
said, is placed upon his wrongful expulsion. This is a violation of public duty by the petitioner air carrier — a case
of quasi-delict. Damages are proper.

7. Petitioner draws our attention to respondent Carrascoso's testimony, thus —

Q You mentioned about an attendant. Who is that attendant and purser?

A When we left already — that was already in the trip — I could not help it. So one of the flight attendants
approached me and requested from me my ticket and I said, What for? and she said, "We will note that you
transferred to the tourist class". I said, "Nothing of that kind. That is tantamount to accepting my transfer."
And I also said, "You are not going to note anything there because I am protesting to this transfer".

Q Was she able to note it?

Evidence II.
 A No, because I did not give my ticket.

Q About that purser?

A Well, the seats there are so close that you feel uncomfortable and you don't have enough leg room, I
stood up and I went to the pantry that was next to me and the purser was there. He told me, "I have
recorded the incident in my notebook." He read it and translated it to me — because it was recorded in
French — "First class passenger was forced to go to the tourist class against his will, and that the captain
refused to intervene."

Mr. VALTE —

I move to strike out the last part of the testimony of the witness because the best evidence would be the
notes. Your Honor.

COURT —

I will allow that as part of his testimony. 49

Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his notebook reading
"First class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene"
is predicated upon evidence [Carrascoso's testimony above] which is incompetent. We do not think so. The subject
of inquiry is not the entry, but the ouster incident. Testimony on the entry does not come within the proscription of
the best evidence rule. Such testimony is admissible.  49a

Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the startling
occurrence was still fresh and continued to be felt. The excitement had not as yet died down. Statements then, in
this environment, are admissible as part of the res gestae. 50 For, they grow "out of the nervous excitement and
mental and physical condition of the declarant". 51 The utterance of the purser regarding his entry in the notebook
was spontaneous, and related to the circumstances of the ouster incident. Its trustworthiness has been
guaranteed. 52 It thus escapes the operation of the hearsay rule. It forms part of the res gestae.

At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would have been an
easy matter for petitioner to have contradicted Carrascoso's testimony. If it were really true that no such entry was
made, the deposition of the purser could have cleared up the matter.

We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.

8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant exemplary damages
— in contracts and quasi- contracts. The only condition is that defendant should have "acted in a wanton,
fraudulent, reckless, oppressive, or malevolent manner." 53 The manner of ejectment of respondent Carrascoso from
his first class seat fits into this legal precept. And this, in addition to moral damages. 54

9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a similar judgment for
attorneys' fees. The least that can be said is that the courts below felt that it is but just and equitable that attorneys'
fees be given. 55 We do not intend to break faith with the tradition that discretion well exercised — as it was here —
should not be disturbed.

10. Questioned as excessive are the amounts decreed by both the trial court and the Court of Appeals, thus:
P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and P3,000.00 as attorneys' fees. The
task of fixing these amounts is primarily with the trial court. 56 The Court of Appeals did not interfere with the same.
The dictates of good sense suggest that we give our imprimatur thereto. Because, the facts and circumstances point
to the reasonableness thereof.57

On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error. We accordingly
vote to affirm the same. Costs against petitioner. So ordered.
Evidence II.
Evidence II.
 23.) [G.R. No. L-14257. July 31, 1959.] (ISSUE IS WHETHER A TRIPLICATE COPY IS
CONSIDERED AN ORIGINAL [no more explanation of loss] court ruled yes.)

THE PEOPLE OF THE PHILIPPINES, Petitioner, v. HON. BIENVENIDO A. TAN as Judge of the

Court of First Instance of Manila, Br. XIII, PACITA MADRIGAL-GONZALES,
ANGELITA CENTENO, JULIA CARPIO, CALIXTO HERMOSA, and CRISPULA R. PAGARAN alias
PULA, Respondents.

Assistant Fiscal Apolinar Tolentino, Prosecutors Norberto J. Quisimbing and Antonio

Villegas for Petitioner.

Gonzalo W. Gonzales and Bausa, Ampil & Suarez for respondent Pacita M. Gonzales.

Estanislao A. Fernandez for the other respondents.

SYLLABUS

1. EVIDENCE; ADMISSIBILITY OF DUPLICATE ORIGINAL WITHOUT THE PRODUCTION OF ORIGINAL.

— If the documents or papers to be introduced in evidence were produced by the use of carbon
sheets, and which thereby produced a facsimile of the originals including the figures and the
signatures on the originals, they are regarded as duplicate originals and may be introduced as such,
even without accounting for the non-production of the other originals.

DECISION

LABRADOR, J.:

In Criminal Case No. 36885 of the Court of First Instance of Manila, respondents Pacita Madrigal-
Gonzales and others are charged with the crime of falsification of public documents, in
their capacities as public officials and employees, by having made it appear that certain
relief supplies and/or merchandise were purchased by Pacita Madrigal-Gonzales for
distribution to calamity indigents or sufferers, in such quantities and at such prices and from
such business establishments or persons as are made to appear in the said public documents, when
in fact and in truth, no such distributions of such relief and supplies as valued and
supposedly purchased by said Pacita Madrigal Gonzalez in the public and official
documents had ever been made.

In order to prove the charge of falsification, the prosecution presented to a witness a

booklet of receipts, which was marked Exh. "D", containing blue invoices numbered
101301 to 101400 of the Metro Drug Corporation, Magallanes corner Jakosalem, Cebu City. The
booklet contained the triplicate copies, and according to said witness the original invoices
were sent to the Manila office of the company, the duplicates to the customers, so that the
triplicate copies remained in the booklet. Witness further explained that in preparing
receipts for sales, two carbons were used between the three sheets, the original, the
duplicate and the triplicate, so that the duplicates and the triplicates were filled out by the
used of the carbons in the course of the preparation and signing of the originals. The
witness giving the testimony was the salesman who issued the triplicates marked as Exh,
"D-1."

As the witness was explaining the figures or words appearing on the triplicates, Hon. Bienvenido M.
Evidence II.
Tan, then presiding in the court below, interrupted the proceeding holding that the triplicates
are not admissible unless it is first proven that the originals were lost and can not be
produced. Said the court: jgc:chanrobles.com.ph

"Triplicates are evidence when it is proven first that the original is lost and cannot be produced. But
as the witness has alleged that the original is in the Manila Office, why not produce the original?"

Another witness, accountant of the Metro Drug Corporation in Manila, was also called by the
prosecution to testify. He declared that sales in the provinces were reported to the Manila office of
the Metro Drug Corporation, and that the originals of the sales invoices are transmitted to the main
office in support of cash journal sheets, but that the original practice of keeping the original white
copies no longer prevails as the originals are given to the customers, while only the duplicate or pink
copies are submitted to the central office in Manila. Testifying on certain cash journal sheets, Exhs,
"A", "A-1", to "A-10" he further declared that he received these from the Metro Drug Corporation,
Cebu branch, and that the said cash journal sheets contained the sales made in the Cebu branch.

After the cross-examination of this last witness, the prosecution again went back to the identification
of the triplicate invoice, Exh. "D-1", already above referred to. It was at this stage that the judge
below told the prosecution that the law applicable is Section 46, Rule 123 of the Rules of Court,
which requires the production of the originals. In response to the above ruling, the special prosecutor
claimed that the evidence of the prosecution the originals on account of their loss.

In view of the above circumstances, the prosecution announced its intention to file a petition
for certiorari against the ruling of the court below to which the court below agreed. Hence this
petition.

It is alleged that the invoice sought to be introduced, which were produced by the use of
carbon sheets, and which thereby produced a facsimile of the regarded as duplicate
originals and may be introduced as such, even without accounting for the non-production
of the originals.

The decision of the question is far from difficult. The admissibility of duplicates or triplicates has long
been a settled question and we need not elaborate on the reasons for the rule. This matter has
received consideration from the foremost commentator on the Rules of Court thus: jgc:chanrobles.com.ph

"When carbon sheets are inserted between two or more sheets of writing paper so that the
writing of a contract upon the outside sheet, including the signature of the party to be
charged thereby, produces facsimile upon the sheets beneath, such signature being thus
reproduced by the same stroke of the pen which made the surface or exposed impression,
all of the sheets so written on are regarded as duplicate originals and either of them may
be introduced in evidence as such without accounting for the nonproduction of the others.’
(Moran, 1952 ed., p. 444.)

It has also been decided in favor of the petitioner by Us in the case of People v. Quinones, 44 Off.
Gaz., No. 5, 1520, 1525, thus: jgc:chanrobles.com.ph

"It is argued in the second assignment of error that the confession Exhibit B is not admissible
because it is merely a carbon copy. The said confession Exhibit B, being carbon copy of the original
and bearing as it does the signature of the appellant, is admissible in evidence and possess all the
probative value of the original, and the same does not require an accounting for the non-production
of the original. (Sec. 47, Rule 123, Rules of Court)."

Two principal authors on the law on evidence have sustained the theory of th admissibility of
duplicate originals, as follows: jgc:chanrobles.com.ph

Evidence II.
"SEC. 386. . . . the best evidence rule is that rule which requires the highest grade of evidence
obtainable to prove a disputed fact p. 616. A "duplicate sales slip’ (People v. Stone, 349 Ill. 52, 181
N. E. 648) has been held to be primary evidence, p. 616.

"SEC. 420. Duplicate originals. — Where letters are produced by mechanical means and, concurrently
with the original, duplicate are produced, as by placing carbon paper between sheets of writing on
the exposed surface at the same time, all are duplicate originals, and any one of them may be
introduced in evidence without accounting for the nonproduction of the other. Citing International
Harvester Co. v. Elfstrom, 101 Minn. 263, 112 N. W. 252. See also 12 L.R.A. (N.S.) 343, People of
Hauke, 335 Ill. 217, 167 N. E. 1; State v. Keife, 165 La. 47, 115 So. 363; Taylor v. Com. 117 Va.
909, 85 S. E. 499." (Wharton’s Criminal Evidence, Vol. I, p. 661).

"SEC. 100. Carbon copies, however, when made at the same time and on the same machine
as the original, are duplicate originals, and these have been held to be as much primary
evidence as the originals. Citing U. S. v. Manton, 107 Fe. (2d) 834, Cert. denied 309 U. S. 664, 84
L. ed. 1012; O’Shea v. U. S., 93 F. (2d), 169; Leonard v. State, 36 Ala. App. 397, 58 So. (2d) 138;
State v. Lee, 173 La. 770, 138 So. 662; Newman v. State 65 Ga. App. 288, 16 S. E. (2d) 87."
(Underhill’s Criminal Evidence, 5th ed., Vol. I, p. 168.)

We find that the ruling of the court below to the effect that the triplicates formed by the used of
carbon papers are not admissible in evidence, without accounting first for the loss of the originals is
incorrect and must be reversed. The court below is hereby ordered to proceed in the trial of the case
in accordance with this ruling. No costs. So ordered.

Evidence II.
 24.) [G.R. No. 80505 :  December 4, 1990.] (ISSUE IS WHETHER A PHOTOCOPY OF THE
MARKED MONEY AS EVIDENCE SHOULD BE ADMITTED, COURT RULED YES. BEST EVIDENCE
RULE DOES NOT APPLY IF THE INQUIRY IS NOT ABOUT THE CONTENTS THEREOF. AS IS THE
CASE HERE. IT IS NOT CONSIDERED AS WRITTEN EVIDENCE BUT OBJECT)
192 SCRA 28
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.  MARIO TANDOY y LIM, Defendant-
Appellant.
 
DECISION
 
CRUZ, J.:
 
The decision of the Regional Trial Court of Makati, Branch 133 dated October 13, 1987, convicting Mario
Tandoy of the crime of violation of Art. II, Sec. 4 of Rep. Act No. 6425 known as the Dangerous Drugs Act
of 1972, is before us on appeal.
The information against the accused-appellant read as follows:
That on or about the 27th day of May 1986, in the Municipality of Makati, Metro Manila, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused without being authorized by law,
did then and there willfully, unlawfully and feloniously sell eight (8) pieces of dried marijuana flowering
tops, two (2) pieces of dried marijuana flowering tops and crushed dried marijuana flowering tops, which
are prohibited drug, for and in consideration of P20.00.
Upon arraignment, Tandoy entered a plea of not guilty. After trial, Judge Buenaventura J. Guerrero
rendered a decision the dispositive portion of which declared:
WHEREFORE, the Court finds Mario Tandoy y Lim guilty beyond reasonable doubt of violation of
Sec. 4, Art. II, Rep. Act No. 6425, as amended, and is hereby sentenced to life imprisonment and
to pay a fine of P20,000.00 and cost.
: nad

The marijuana confiscated in this case is declared confiscated and forfeited and ordered turned
over to the Dangerous Drugs Board for proper disposal.
SO ORDERED.
The accused-appellant raises the following assignment of errors in this appeal:
1. The Court a quo erred in finding accused guilty beyond reasonable doubt of the crime charged
despite lack of evidence to prove that he sold marijuana to the poseur-buyer.
2. The Court a quo erred in admitting in evidence against the accused Exh. "E-2-A" which
is merely a xerox copy of the P10.00 bill allegedly used as buy-bust money.
The evidence of the prosecution may be summarized as follows:
On May 27, 1986, at about 3:30 p.m. Lt. Salido, Jr. of the Makati Police Station dispatched Pfc. Herino de
la Cruz, and Detectives Pablo R. Singayan, Nicanor Candolesas, Luisito de la Cruz, Estanislao Dalumpines,
Antonio Manalastas and Virgilio Padua to conduct a buy-bust operation at Solchuaga St., Barangay
Singkamas, Makati.
The target area was a store along the said street, and Singayan was to pose as the buyer. He stood alone
near the store waiting for any pusher to approach. The other members of the team strategically positioned
themselves. Soon, three men approached Singayan. One of them was the accused-appellant, who said
without preamble: "Pare, gusto mo bang umiskor?" Singayan said yes. The exchange was made then
and there — two rolls/pieces of marijuana for one P10.00 and two P5.00 bills marked ANU
(meaning Anti-Narcotics Unit).

Evidence II.
The team then moved in and arrested Tandoy. Manalastas and Candolesas made a body search of the
accused-appellant and took from him the marked money, as well as eight more rolls/foils of
marijuana and crushed leaves. : nad

The arresting officers brought Tandoy to the Office of the Anti-Narcotics Unit, Makati Police Station, for
investigation by Detective Marvin Pajilan. The accused-appellant chose to remain silent after having been
informed of his constitutional rights.
These events were narrated under oath by De la Cruz, Singayan and Pajilan.  1 Microscopic, chemical and
chromotographic examination was performed on the confiscated marijuana by Raquel P. Angeles, forensic
chemist of the National Bureau of Investigation, who later testified that the findings were positive. The
marijuana was offered as an exhibit.  2
As might be expected, the accused-appellant had a different story. His testimony was that from 1:30 to
4:00 p.m. of the day in question, he was playing "cara y cruz" with 15 other persons along Solchuaga St.
when somebody suddenly said that policemen were making arrests. The players grabbed the bet money
and scampered. However, he and a certain Danny (another "cara y cruz" player) were caught and taken to
the Narcotics Command headquarters in Makati. There they were mauled and warned that if they did not
point to their fellow pushers, they would rot in jail. The accused-appellant denied he had sold marijuana to
Singayan and insisted the bills taken from him were the bet money he had grabbed at the "cara y cruz"
game.  3
The trial court, which had the opportunity to observe the demeanor of the witnesses and to listen to their
respective testimonies, gave more credence to the statements of the arresting officers. Applying the
presumption that they had performed their duties in a regular manner, it rejected Tandoy's
uncorroborated allegation that he had been manhandled and framed. Tandoy had not submitted sufficient
evidence of his charges, let alone his admission that he had no quarrel with the peace officers whom he
had met only on the day of his arrest.
In People v. Patog,  4 this Court held:
When there is no evidence and nothing to indicate the principal witness for the prosecution was actuated
by improper motives, the presumption is that he was not so actuated and his testimony is entitled to full
faith and credit.
Tandoy submits that "one will not sell this prohibited drug to another who is a total stranger until the
seller is certain of the identity of the buyer."
The conjecture must be rejected. : nad

In People v. Paco, 5 this Court observed:

Drug-pushing when done on a small level as in this case belongs to that class of crimes that may be
committed at anytime and at any place. After the offer to buy is accepted and the exchange is made, the
illegal transaction is completed in a few minutes. The fact that the parties are in a public place and in the
presence of other people may not always discourage them from pursuing their illegal trade as these
factors may even serve to camouflage the same. Hence, the Court has sustained the conviction of drug
pushers caught selling illegal drugs in a billiard hall (People v. Rubio, G.R. No. 66875, June 19, 1986, 142
SCRA 329; People v. Sarmiento, G.R. No. 72141, January 12, 1987, 147 SCRA 252), in front of a store
(People vs.  Khan, supra) along a street at 1:45 p.m. (People v. Toledo, G.R. No. 67609, November 22,
1985, 140 SCRA 259), and in front of a house (People v. Policarpio, G.R. No. 69844, February 23, 1988).
As the Court has also held, "What matters is not an existing familiarity between the buyer and the seller
but their agreement and the acts constituting the sale and delivery of the marijuana leaves."  6
Under the second assigned error, the accused-appellant invokes the best evidence rule and
questions the admission by the trial court of the xerox copy only of the marked P10.00 bill.
The Solicitor General, in his Comment, correctly refuted that contention thus:
This assigned error centers on the trial court's admission of the P10.00 bill marked money
(Exh. E-2-A) which, according to the appellant, is excluded under the best evidence rule for
being a mere xerox copy. Apparently, appellant erroneously thinks that said marked money is
an ordinary document falling under Sec. 2, Rule 130 of the Revised Rules of Court which

Evidence II.
excludes the introduction of secondary evidence except in the five (5) instances mentioned
therein. :-cralaw

The best evidence rule applies only when the contents of the document are the subject of
inquiry. Where the issue is only as to whether or not such document was actually executed, or
exists, or in the circumstances relevant to or surrounding its execution, the best evidence rule
does not apply and testimonial evidence is admissible. (Cf. Moran, op. cit., pp. 76-77; 4 Martin, op.
cit., p. 78.)
Since the aforesaid marked money was presented by the prosecution solely for the purpose of
establishing its existence and not its contents, other substitutionary evidence, like a xerox
copy thereof, is therefore admissible without the need of accounting for the original.
Moreover, the presentation at the trial of the "buy-bust money" was not indispensable to the conviction of
the accused-appellant because the sale of the marijuana had been adequately proved by the testimony of
the police officers. So long as the marijuana actually sold by the accused-appellant had been submitted as
an exhibit, the failure to produce the marked money itself would not constitute a fatal omission.
We are convinced from the evidence on record that the prosecution has overcome the constitutional
presumption of innocence in favor of the accused-appellant with proof beyond reasonable doubt of his
guilt. He must therefore suffer the penalty prescribed by law for those who would visit the scourge of drug
addiction upon our people.
WHEREFORE, the appeal is DISMISSED and the challenged decision AFFIRMED in toto, with costs against
the accused-appellant.: nad

Evidence II.
25.) G.R. No. 160855             April 16, 2008

CONCEPCION CHUA GAW, petitioner,
vs.
SUY BEN CHUA and FELISA CHUA, respondents.

DECISION

NACHURA, J.:

This is a Petition for Review on Certiorari from the Decision1 of the Court of Appeals (CA) in CA-G.R. CV No. 66790
and Resolution2 denying the motion for reconsideration. The assailed decision affirmed the ruling of the Regional
Trial Court (RTC) in a Complaint for Sum of Money in favor of the plaintiff.

The antecedents are as follows:

Spouses Chua Chin and Chan Chi were the founders of three business enterprises 3 namely: Hagonoy Lumber,
Capitol Sawmill Corporation, and Columbia Wood Industries. The couple had seven children, namely, Santos
Chua; Concepcion Chua; Suy Ben Chua; Chua Suy Phen; Chua Sioc Huan; Chua Suy Lu; and Julita Chua. On
June 19, 1986, Chua Chin died, leaving his wife Chan Chi and his seven children as his only surviving heirs. At the
time of Chua Chin’s death, the net worth of Hagonoy Lumber was P415,487.20.4

On December 8, 1986, his surviving heirs executed a Deed of Extra-Judicial Partition and Renunciation of

Hereditary Rights in Favor of a Co-Heir5 (Deed of Partition, for brevity), wherein the heirs settled their interest in
Hagonoy Lumber as follows: one-half (1/2) thereof will pertain to the surviving spouse, Chan Chi, as her share in the
conjugal partnership; and the other half, equivalent to P207,743.60, will be divided among Chan Chi and the seven
children in equal pro indiviso shares equivalent to P25,967.00 each.6 In said document, Chan Chi and the six
children likewise agreed to voluntarily renounce and waive their shares over Hagonoy Lumber in favor of their co-
heir, Chua Sioc Huan.

In May 1988, petitioner Concepcion Chua Gaw and her husband, Antonio Gaw, asked respondent, Suy Ben Chua,
to lend them P200,000.00 which they will use for the construction of their house in Marilao, Bulacan. The parties
agreed that the loan will be payable within six (6) months without interest.7 On June 7, 1988, respondent issued in
their favor China Banking Corporation Check No. 240810 8 for P200,000.00 which he delivered to the couple’s house
in Marilao, Bulacan. Antonio later encashed the check.

On August 1, 1990, their sister, Chua Sioc Huan, executed a Deed of Sale over all her rights and interests in
Hagonoy Lumber for a consideration of P255,000.00 in favor of respondent.9

Meantime, the spouses Gaw failed to pay the amount they borrowed from respondent within the designated period.
Respondent sent the couple a demand letter,10 dated March 25, 1991, requesting them to settle their obligation with
the warning that he will be constrained to take the appropriate legal action if they fail to do so.

Failing to heed his demand, respondent filed a Complaint for Sum of Money against the spouses Gaw with the RTC.
The complaint alleged that on June 7, 1988, he extended a loan to the spouses Gaw for P200,000.00, payable
within six months without interest, but despite several demands, the couple failed to pay their obligation. 11

In their Answer (with Compulsory Counterclaim), the spouses Gaw contended that the P200,000.00 was not a loan
but petitioner’s share in the profits of Hagonoy Lumber, one of her family’s businesses. According to the spouses,
when they transferred residence to Marilao, Bulacan, petitioner asked respondent for an accounting, and payment
of her share in the profits, of Capital Sawmills Corporation, Columbia Wood Industries Corporation, and Hagonoy
Lumber. They claimed that respondent persuaded petitioner to temporarily forego her demand as it would offend
their mother who still wanted to remain in control of the family businesses. To insure that she will defer her demand,
respondent allegedly gave her P200,000.00 as her share in the profits of Hagonoy Lumber.12

Evidence II.
In his Reply, respondent averred that the spouses Gaw did not demand from him an accounting of Capitol Sawmills
Corporation, Columbia Wood Industries, and Hagonoy Lumber. He asserted that the spouses Gaw, in fact, have no
right whatsoever in these businesses that would entitle them to an accounting thereof. Respondent insisted that
the P200,000.00 was given to and accepted by them as a loan and not as their share in Hagonoy Lumber. 13

With leave of court, the spouses Gaw filed an Answer (with Amended Compulsory Counterclaim) wherein they
insisted that petitioner, as one of the compulsory heirs, is entitled to one-sixth (1/6) of Hagonoy Lumber, which the
respondent has arrogated to himself. They claimed that, despite repeated demands, respondent has failed and
refused to account for the operations of Hagonoy Lumber and to deliver her share therein. They then prayed that
respondent make an accounting of the operations of Hagonoy Lumber and to deliver to petitioner her one-sixth (1/6)
share thereof, which was estimated to be worth not less than P500,000.00.14

In his Answer to Amended Counterclaim, respondent explained that his sister, Chua Sioc Huan, became the sole
owner of Hagonoy Lumber when the heirs executed the Deed of Partition on December 8, 1986. In turn, he became
the sole owner of Hagonoy Lumber when he bought it from Chua Sioc Huan, as evidenced by the Deed of Sale
dated August 1, 1990.15

Defendants, in their reply,16 countered that the documents on which plaintiff anchors his claim of ownership over
Hagonoy Lumber were not true and valid agreements and do not express the real intention of the parties. They
claimed that these documents are mere paper arrangements which were prepared only upon the advice of a
counsel until all the heirs could reach and sign a final and binding agreement, which, up to such time, has not been
executed by the heirs.17

During trial, the spouses Gaw called the respondent to testify as adverse witness under Section 10, Rule 132. On
direct examination, respondent testified that Hagonoy Lumber was the conjugal property of his parents Chua Chin
and Chan Chi, who were both Chinese citizens. He narrated that, initially, his father leased the lots where Hagonoy
Lumber is presently located from his godfather, Lu Pieng, and that his father constructed the two-storey concrete
building standing thereon. According to respondent, when he was in high school, it was his father who managed the
business but he and his other siblings were helping him. Later, his sister, Chua Sioc Huan, managed Hogonoy
Lumber together with their other brothers and sisters. He stated that he also managed Hagonoy Lumber when he
was in high school, but he stopped when he got married and found another job. He said that he now owns the lots
where Hagonoy Lumber is operating. 18

On cross-examination, respondent explained that he ceased to be a stockholder of Capitol Sawmill when he sold his
shares of stock to the other stockholders on January 1, 1991. He further testified that Chua Sioc Huan acquired
Hagonoy Lumber by virtue of a Deed of Partition, executed by the heirs of Chua Chin. He, in turn, became the
owner of Hagonoy Lumber when he bought the same from Chua Sioc Huan through a Deed of Sale dated August 1,
1990. 19

On re-direct examination, respondent stated that he sold his shares of stock in Capitol Sawmill for P254,000.00,
which payment he received in cash. He also paid the purchase price of P255,000.00 for Hagonoy Lumber in cash,
which payment was not covered by a separate receipt as he merely delivered the same to Chua Sioc Huan at her
house in Paso de Blas, Valenzuela. Although he maintains several accounts at Planters Bank, Paluwagan ng
Bayan, and China Bank, the amount he paid to Chua Sioc Huan was not taken from any of them. He kept the
amount in the house because he was engaged in rediscounting checks of people from the public market. 20

On December 10, 1998, Antonio Gaw died due to cardio vascular and respiratory failure. 21

On February 11, 2000, the RTC rendered a Decision in favor of the respondent, thus:

WHEREFORE, in the light of all the foregoing, the Court hereby renders judgement ordering defendant
Concepcion Chua Gaw to pay the [respondent] the following:

1. P200,000.00 representing the principal obligation with legal interest from judicial demand or the institution
of the complaint on November 19, 1991;

Evidence II.
 2. P50,000.00 as attorney’s fees; and

3. Costs of suit.

The defendants’ counterclaim is hereby dismissed for being devoid of merit.

SO ORDERED.22

The RTC held that respondent is entitled to the payment of the amount of P200,000.00 with interest. It noted that
respondent personally issued Check No. 240810 to petitioner and her husband upon their request to lend them the
aforesaid amount. The trial court concluded that the P200,000.00 was a loan advanced by the respondent from his
own funds and not remunerations for services rendered to Hagonoy Lumber nor petitioner’s advance share in the
profits of their parents’ businesses.

The trial court further held that the validity and due execution of the Deed of Partition and the Deed of Sale,
evidencing transfer of ownership of Hagonoy Lumber from Chua Sioc Huan to respondent, was never
impugned. Although respondent failed to produce the originals of the documents, petitioner judicially admitted the
due execution of the Deed of Partition, and even acknowledged her signature thereon, thus constitutes an exception
to the best evidence rule. As for the Deed of Sale, since the contents thereof have not been put in issue, the non-
presentation of the original document is not fatal so as to affect its authenticity as well as the truth of its contents.
Also, the parties to the documents themselves do not contest their validity. Ultimately, petitioner failed to establish
her right to demand an accounting of the operations of Hagonoy Lumber nor the delivery of her 1/6 share therein.

As for petitioner’s claim that an accounting be done on Capitol Sawmill Corporation and Columbia Wood Industries,
the trial court held that respondent is under no obligation to make such an accounting since he is not charged with
operating these enterprises.23

Aggrieved, petitioner appealed to the CA, alleging that the trial court erred (1) when it considered the amount
of P200,000.00 as a loan obligation and not Concepcion’s share in the profits of Hagonoy Lumber; (2) when it
considered as evidence for the defendant, plaintiff’s testimony when he was called to testify as an adverse party
under Section 10 (e), Rule 132 of the Rules of Court; and (3) when it considered admissible mere copies of the
Deed of Partition and Deed of Sale to prove that respondent is now the owner of Hagonoy Lumber. 24

On May 23, 2003, the CA affirmed the Decision of the RTC. 25 The appellate court found baseless the petitioner’s
argument that the RTC should not have included respondent’s testimony as part of petitioner’s evidence. The CA
noted that the petitioner went on a fishing expedition, the taking of respondent’s testimony having taken up a total of
eleven hearings, and upon failing to obtain favorable information from the respondent, she now disclaims the same.
Moreover, the CA held that the petitioner failed to show that the inclusion of respondent’s testimony in the statement
of facts in the assailed decision unduly prejudiced her defense and counterclaims. In fact, the CA noted that the
facts testified to by respondent were deducible from the totality of the evidence presented.

The CA likewise found untenable petitioner’s claim that Exhibits "H" (Deed of Sale) and Exhibit "I" (Deed of Partition)
were merely temporary paper arrangements. The CA agreed with the RTC that the testimony of petitioner regarding
the matter was uncorroborated — she should have presented the other heirs to attest to the truth of her allegation.
Instead, petitioner admitted the due execution of the said documents. Since petitioner did not dispute the due
execution and existence of Exhibits "H" and "I", there was no need to produce the originals of the documents in
accordance with the best evidence rule.26

On December 2, 2003, the CA denied the petitioner’s motion for reconsideration for lack of merit. 27

Petitioner is before this Court in this petition for review on certiorari, raising the following errors:

I. THAT ON THE PRELIMINARY IMPORTANT RELATED ISSUE, CLEAR AND PALPABLE LEGAL ERROR
HAS BEEN COMMITTED IN THE APPLICATION AND LEGAL SIGNIFICANCE OF THE RULE ON
EXAMINATION OF ADVERSE PARTY OR HOSTILE WITNESS UNDER SECTION 10 (d) AND (e) OF

Evidence II.
 RULE 132, CAUSING SERIOUS DOUBT ON THE LOWER COURT’S APPEALED DECISION’S
OBJECTIVITY, ANNEX "C".

II. THAT ON THE IMPORTANT LEGAL ISSUE RELATIVE TO THE AFORESAID TWO OPPOSING
CLAIMS OF RESPONDENT AND PETITIONER, CLEAR AND PALPABLE LEGAL ERROR HAS BEEN
COMMITTED UNDER THE LOWER COURT’S DECISION ANNEX "C" AND THE QUESTIONED
DECISION OF MAY 23, 2003 (ANNEX "A") AND THE RESOLUTION OF DECEMBER 2, 2003, (ANNEX
"B") IN DEVIATING FROM AND DISREGARDING ESTABLISHED SUPREME COURT DECISIONS
ENJOINING COURTS NOT TO OVERLOOK OR MISINTERPRET IMPORTANT FACTS AND
CIRCUMSTANCES, SUPPORTED BY CLEAR AND CONVINCING EVIDENCE ON RECORD, AND WHICH
ARE OF GREAT WEIGHT AND VALUE, WHICH WOULD CHANGE THE RESULT OF THE CASE AND
ARRIVE AT A JUST, FAIR AND OBJECTIVE DECISION. (Citations omitted)

III. THAT FINALLY, AS TO THE OTHER LEGAL IMPORTANT ISSUE RELATIVE TO CLAIM OR
OWNERSHIP OF THE "Hagonoy Lumber" FAMILY BUSINESS, CLEAR AND PALPABLE LEGAL ERROR
HAS BEEN COMMITTED ON THE REQUIREMENTS AND CORRECT APPLICATION OF THE "BEST
EVIDENCE RULE" UNDER SECTION 3, RULE 130 OF THE REVISED RULES OF COURT.28

The petition is without merit.

Petitioner contends that her case was unduly prejudiced by the RTC’s treatment of the respondent’s testimony as
adverse witness during cross-examination by his own counsel as part of her evidence. Petitioner argues that the
adverse witness’ testimony elicited during cross-examination should not be considered as evidence of the calling
party. She contends that the examination of respondent as adverse witness did not make him her witness and she is
not bound by his testimony, particularly during cross-examination by his own counsel. 29 In particular, the petitioner
avers that the following testimony of the respondent as adverse witness should not be considered as her evidence:

(11.a) That RESPONDENT-Appellee became owner of the "HAGONOY LUMBER" business when he
bought the same from Chua Sioc Huan through a Deed of Sale dated August 1, 1990 (EXH.H);

(11.b) That the "HAGONOY LUMBER," on the other hand, was acquired by the sister Chua Sioc Huan, by
virtue of Extrajudicial Partition and Renunciation of Hereditary Rights in favor of a Co-Heir (EXH. I);

(11.c) That the 3 lots on which the "HAGONOY LUMBER" business is located were acquired by Lu Pieng
from the Santos family under the Deed of Absolute Sale (EXH. J); that Lu Pieng sold the Lots to Chua Suy
Lu in 1976 (EXHS. K, L, & M.); that Chua Siok Huan eventually became owner of the 3 Lots; and in 1989
Chua Sioc Huan sold them to RESPONDENT-Appellee (EXHS. Q and P); that after he acquired the 3 Lots,
he has not sold them to anyone and he is the owner of the lots.30

We do not agree that petitioner’s case was prejudiced by the RTC’s treatment of the respondent’s testimony during
cross-examination as her evidence.

If there was an error committed by the RTC in ascribing to the petitioner the respondent’s testimony as adverse
witness during cross-examination by his own counsel, it constitute a harmless error which would not, in any way,
change the result of the case.

In the first place, the delineation of a piece of evidence as part of the evidence of one party or the other is only
significant in determining whether the party on whose shoulders lies the burden of proof was able to meet the
quantum of evidence needed to discharge the burden. In civil cases, that burden devolves upon the plaintiff who
must establish her case by preponderance of evidence. The rule is that the plaintiff must rely on the strength of his
own evidence and not upon the weakness of the defendant’s evidence. Thus, it barely matters who with a piece of
evidence is credited. In the end, the court will have to consider the entirety of the evidence presented by both
parties. Preponderance of evidence is then determined by considering all the facts and circumstances of the case,
culled from the evidence, regardless of who actually presented it.31

Evidence II.
That the witness is the adverse party does not necessarily mean that the calling party will not be bound by the
former’s testimony. The fact remains that it was at his instance that his adversary was put on the witness stand.
Unlike an ordinary witness, the calling party may impeach an adverse witness in all respects as if he had been
called by the adverse party,32 except by evidence of his bad character.33 Under a rule permitting the impeachment of
an adverse witness, although the calling party does not vouch for the witness’ veracity, he is nonetheless bound by
his testimony if it is not contradicted or remains unrebutted. 34

A party who calls his adversary as a witness is, therefore, not bound by the latter’s testimony only in the sense that
he may contradict him by introducing other evidence to prove a state of facts contrary to what the witness testifies
on.35 A rule that provides that the party calling an adverse witness shall not be bound by his testimony does not
mean that such testimony may not be given its proper weight, but merely that the calling party shall not be precluded
from rebutting his testimony or from impeaching him.36 This, the petitioner failed to do.

In the present case, the petitioner, by her own testimony, failed to discredit the respondent’s testimony on how
Hagonoy Lumber became his sole property. The petitioner admitted having signed the Deed of Partition but she
insisted that the transfer of the property to Chua Siok Huan was only temporary. On cross-examination, she
confessed that no other document was executed to indicate that the transfer of the business to Chua Siok Huan was
a temporary arrangement. She declared that, after their mother died in 1993, she did not initiate any action
concerning Hagonoy Lumber, and it was only in her counterclaim in the instant that, for the first time, she raised a
claim over the business.

Due process requires that in reaching a decision, a tribunal must consider the entire evidence presented. 37 All the
parties to the case, therefore, are considered bound by the favorable or unfavorable effects resulting from the
evidence.38 As already mentioned, in arriving at a decision, the entirety of the evidence presented will be considered,
regardless of the party who offered them in evidence. In this light, the more vital consideration is not whether a piece
of evidence was properly attributed to one party, but whether it was accorded the apposite probative weight by the
court. The testimony of an adverse witness is evidence in the case and should be given its proper weight, and such
evidence becomes weightier if the other party fails to impeach the witness or contradict his testimony.

Significantly, the RTC’s finding that the P200,000.00 was given to the petitioner and her husband as a loan is
supported by the evidence on record. Hence, we do not agree with the petitioner’s contention that the RTC has
overlooked certain facts of great weight and value in arriving at its decision. The RTC merely took into consideration
evidence which it found to be more credible than the self-serving and uncorroborated testimony of the petitioner.

At this juncture, we reiterate the well-entrenched doctrine that the findings of fact of the CA affirming those of the
trial court are accorded great respect, even finality, by this Court. Only errors of law, not of fact, may be reviewed by
this Court in petitions for review on certiorari under Rule 45.39 A departure from the general rule may be warranted
where the findings of fact of the CA are contrary to the findings and conclusions of the trial court, or when the same
is unsupported by the evidence on record.40 There is no reason to apply the exception in the instant case because
the findings and conclusions of the CA are in full accord with those of the trial court. These findings are buttressed
by the evidence on record. Moreover, the issues and errors alleged in this petition are substantially the very same
questions of fact raised by petitioner in the appellate court.

On the issue of whether the P200,000.00 was really a loan, it is well to remember that a check may be evidence of
indebtedness.41 A check, the entries of which are in writing, could prove a loan transaction. 42 It is pure naiveté to
insist that an entrepreneur who has several sources of income and has access to considerable bank credit, no
longer has any reason to borrow any amount.

The petitioner’s allegation that the P200,000.00 was advance on her share in the profits of Hagonoy Lumber is
implausible. It is true that Hagonoy Lumber was originally owned by the parents of petitioner and respondent.
However, on December 8, 1986, the heirs freely renounced and waived in favor of their sister Chua Sioc Huan all
their hereditary shares and interest therein, as shown by the Deed of Partition which the petitioner herself signed. By
virtue of this deed, Chua Sioc Huan became the sole owner and proprietor of Hagonoy Lumber. Thus, when the
respondent delivered the check for P200,000.00 to the petitioner on June 7, 1988, Chua Sioc Huan was already the
sole owner of Hagonoy Lumber. At that time, both petitioner and respondent no longer had any interest in the
business enterprise; neither had a right to demand a share in the profits of the business. Respondent became the
sole owner of Hagonoy Lumber only after Chua Sioc Huan sold it to him on August 1, 1990. So, when the
Evidence II.
respondent delivered to the petitioner the P200,000.00 check on June 7, 1988, it could not have been given as an
advance on petitioner’s share in the business, because at that moment in time both of them had no participation,
interest or share in Hagonoy Lumber. Even assuming, arguendo, that the check was an advance on the petitioner’s
share in the profits of the business, it was highly unlikely that the respondent would deliver a check drawn against
his personal, and not against the business enterprise’s account.

It is also worthy to note that both the Deed of Partition and the Deed of Sale were acknowledged before a Notary
Public. The notarization of a private document converts it into a public document, and makes it admissible in court
without further proof of its authenticity.43 It is entitled to full faith and credit upon its face.44 A notarized document
carries evidentiary weight as to its due execution, and documents acknowledged before a notary public have in their
favor the presumption of regularity. Such a document must be given full force and effect absent a strong, complete
and conclusive proof of its falsity or nullity on account of some flaws or defects recognized by law. 45 A public
document executed and attested through the intervention of a notary public is, generally, evidence of the facts
therein express in clear unequivocal manner.46

Petitioner, however, maintains that the RTC erred in admitting in evidence a mere copy of the Deed of Partition and
the Deed of Sale in violation of the best evidence rule. In addition, petitioner insists that the Deed of Sale was not
the result of bona fide negotiations between a true seller and buyer.

The "best evidence rule" as encapsulated in Rule 130, Section 3,47 of the Revised Rules of Civil Procedure applies
only when the content of such document is the subject of the inquiry. Where the issue is only as to whether such
document was actually executed, or exists, or on the circumstances relevant to or surrounding its execution, the
best evidence rule does not apply and testimonial evidence is admissible. Any other substitutionary evidence is
likewise admissible without need to account for the original. 48 Moreover, production of the original may be dispensed
with, in the trial court’s discretion, whenever the opponent does not bona fide dispute the contents of the
document and no other useful purpose will be served by requiring production.49

Accordingly, we find that the best evidence rule is not applicable to the instant case. Here, there was no dispute as
to the terms of either deed; hence, the RTC correctly admitted in evidence mere copies of the two deeds. The
petitioner never even denied their due execution and admitted that she signed the Deed of Partition.50 As for the
Deed of Sale, petitioner had, in effect, admitted its genuineness and due execution when she failed to specifically
deny it in the manner required by the rules.51 The petitioner merely claimed that said documents do not express the
true agreement and intention of the parties since they were only provisional paper arrangements made upon the
advice of counsel.52 Apparently, the petitioner does not contest the contents of these deeds but alleges that there
was a contemporaneous agreement that the transfer of Hagonoy Lumber to Chua Sioc Huan was only temporary.

An agreement or the contract between the parties is the formal expression of the parties’ rights, duties and
obligations. It is the best evidence of the intention of the parties. 53 The parties’ intention is to be deciphered from the
language used in the contract, not from the unilateral post facto assertions of one of the parties, or of third parties
who are strangers to the contract.54 Thus, when the terms of an agreement have been reduced to writing, it is
deemed to contain all the terms agreed upon and there can be, between the parties and their successors in interest,
no evidence of such terms other than the contents of the written agreement.55

WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CV
No. 66790 dated May 23, 2003 and Resolution dated December 2, 2003 are AFFIRMED.

Evidence II.
26.) G.R. No. L-5791 December 17, 1910 (duplicate not acceptable

THE UNITED STATES, plaintiff-appellee,

vs.
BERNARDO GREGORIO and EUSTAQUIO BALISTOY, defendants-appellants.

Albert E. Somersille, for appellant Gregorio.

Cayetano Hipolito, for appellant Balistoy.
Attorney-General Villamor, for appellee.

TORRES, J.:

Appeals were interposed by the defendants Bernardo Gregorio and Eustaquio Balistoy from the judgment rendered
in the two causes prosecuted, No. 1574, against Bernardo Gregorio, and No. 1575, against Eustaquio Balistoy,
which were consolidated and in which but one judgment was rendered, and forwarded to this court and registered
under No. 5791.

In the suit instituted by Pedro Salazar, as a creditor, against Eustaquio Balistoy, in the justice of the peace court of
Libog, for the payment of a certain sum of money, judgment was rendered, on April 4, 1908, wherein the debtor was
sentenced to pay to the plaintiff P275.92, with interest thereon, and the costs. For the execution of the said
judgment, two rural properties belonging to the debtor were attached and the 27th of May, 1908, was set as the date
for the sale and adjudication of the said attached properties to the highest bidder. On the 18th of the same month,
Bernardo Gregorio requested the deputy sheriff to exclude the said realty from the attachment, alleging that he was
the owner of the land situated in Tambogon, one of the properties levied upon, 400 brazas in circumference, situate
in the pueblo of Bacacay, the location and boundaries of which are expressed in his petition, for the reason that he
had acquired it by purchase from the judgment debtor, Balistoy, in 1905, prior to the filing of the complaint. By
reason of this claim and petition the judgment creditor, Salazar, had to give a bond, in view of which the sheriff
proceeded with the sale of the said property, and of another, also attached for the sum of P300, and both were
adjudicated to the judgment creditor, according to the certificate, Exhibit C.
lawphil.net

In order that the claim of intervention presented to the sheriff might prosper, Bernardo Gregorio attached thereto the
document Exhibit D, at the end of which and among other particulars appears the memorandum dated in Libog as of
February 22, 1905, and signed by Eustaquio Balistoy, Lorenzo Gregorio, and Cirilo Valla, and in which Balistoy
states that he bought the land referred to in the said document from Luis Balistoy and sold it to Bernardo Gregorio
for P300, wherefore he signed as such vendor.

The charge consists in that Balistoy, with intent to injure his creditor, Pedro Salazar, and for the purpose of
avoiding the attachment and sale of one of the properties belonging to him, to secure the payment of the
judgment obtained by his creditor in the aforementioned suit, did, with disregard of the truth in the
narration of the facts, execute or write the said memorandum whereby, on February 25, 1905, he made or
simulated a conveyance of one of the attached properties in favor of the said Bernardo Gregorio, according
to the aforesaid copy, when in fact the said memorandum was written in April, 1908.

For the foregoing reasons a complaint was filed in each of the two aforesaid causes in the Court of First Instance of
Albay, charging each of the defendants with the crime of the falsification of a private document, and proceedings
having been instituted in both causes, which were afterwards, by agreement of the parties thereto, consolidated, the
court, on November 6, 1909, pronounced in both of them the judgment appealed from, written in duplicate, whereby
Balistoy was sentenced to the penalty of one year eight months and twenty-one days of presidio correccional, to the
accessory penalties, to pay a fine of 1,501 pesetas, and, in case of nonpayment thereof through insolvency, to
suffer the corresponding subsidiary imprisonment, provided it should not exceed one-third of the principal sentence,
and to pay the costs incurred in cause No. 1575; and likewise, Bernardo Gregorio was sentenced to the penalty of
three months and eleven days of arresto mayor, to pay a fine of 1,980 pesetas, and, in case of insolvency, to the

Evidence II.
corresponding subsidiary imprisonment, with the provision that it should not exceed one-third of the principal
penalty, to the accessory punishments, and to pay the costs occasioned by cause No. 1574. From these sentences
the defendants, respectively, appealed.

This case concerns the falsity of a document alleged to have been written on a date prior to the one when it actually
was prepared, which instrument simulates the sale of a parcel of land by its owner to a third party, with the intent to
defraud the creditor who, through proper judicial process, solicited and obtained the attachment and sale of the said
property in order, with the proceeds of such sale, to recover the amount which the owner of the land owed him.

The sale was recorded in a memorandum, made upon a private document, according to the alleged copy of
the latter presented at trial which belonged to the owner of land; and, notwithstanding the fact that the sheriff,
who carried out the proceedings of attachment and sale, testified to his having seen the original of the said
document, or at least the original memorandum of the conveyance, the only record that could be of use to the
intervener, who claimed a lien on the land which was to be sold at public auction; certainly the mere exhibition of
a copy of an unauthenticated private document could not legally produce the effect of suspending the sale
of the said land, inasmuch as such copy is not sufficient proof of the right of the intervener and opponent,
being e mere copy of a private document whose legality has not been proven.

In the charge filed in this cause against the vendor and the vendee of the land in question, it is stated that these
parties, the defendants, simulated the said memorandum of sale or conveyance of the land with the intent to injure
the creditor, Pedro Salazar; but as the original document, setting forth the said memorandum, was not
presented, but merely a copy thereof, and furthermore, as it could not be ascertained who had the original of
the document containing the memorandum in question, nor the exact date when the latter was written; the
said memorandum, presumed to be simulated and false, was not literally compared by the sheriff who
testified that he had seen its original for but a few moments, nor by any officer authorized by law to certify
to documents and proceedings such as are recorded in notarial instruments, nor even by two witnesses
who might afterwards have been able to testify before the court that the copy exhibited was in exact
agreement with its original; therefore, on account of these deficiencies, doubt arises as to whether the
original of the document, Exhibit D, really existed at all, and whether the memorandum at the foot of the
said exhibit is an exact copy of that alleged to have been written at the end of the said original document.  lawphil.net

In criminal proceedings for the falsification of a document, it is indispensable that the judges and courts
have before them the document alleged to have been simulated, counterfeited, or falsified, in order that they
may find, pursuant to the evidence produced in the cause, whether or not the crime of falsification was
committed, and also, at the same time, to enable them to determine the degree of each defendant's liability
in the falsification under prosecution. Through the lack of the original document containing the
memorandum alleged to be false, it is improper to hold, with only a copy of the said original in view, that the
crime prosecuted was committed; and although, judging from the testimony of the witnesses who were
examined in the two consolidated causes, there is reason to entertain much doubt as to the defendants'
innocence, yet, withal, this case does not furnish decisive and conclusive proof of their respective guilt as
coprincipals of the crime charged. Defendants in a criminal cause are always presumed to be innocent until their
guilt be fully proven, and, in case of reasonable doubt and when their guilt is not satisfactorily shown, they are
entitled to a judgment of acquittal. In view of the evidence produced in both of the aforesaid criminal causes, said
causes can only be terminated by such a finding.

For the foregoing reasons, it is proper, in our opinion, with a reversal of the judgment appealed from, to acquit, and
we hereby do acquit Eustaquio Balistoy and Bernardo Gregorio, with the costs of both instances de oficio. So
ordered.

Evidence II.
27.) G.R. No. L-35366             August 5, 1931

THE PROVINCIAL FISCAL OF PAMPANGA, petitioner,

vs.
HERMOGENES REYES, Judge of First Instance of Pampanga, and ANDRES GUEVARRA, respondents.

Provincial Fiscal Daza in his own behalf.

Monico R. Mercado for respondent judge.
Francisco Lazatin for respondent Guevarra.

VILLAMOR, J.:

The petitioner prays for a writ of mandamus to compel the respondent judge to admit Exhibits A, B, C, and D
(attached to the petition), as evidence for the prosecution in criminal cases Nos. 4501 and 4502 of the Court of First
Instance of Pampanga.

The provincial fiscal of Pampanga filed two informations for libel against Andres Guevarra. The informations alleged
that the defendant, with malicious intent, published on page 9 of the weekly paper Ing Magumasid in its issue of July
13, 1930, a squib in verse, of which a translation into Spanish was included therein, intended to impeach the
honesty, integrity, and reputation of Clemente Dayrit (information in criminal cause No. 4501) and of Mariano
Nepomuceno (information in criminal cause No. 4502).

The defendant demurred on the ground of duplicity of informations, he having published only one libelous article in
the Ing Magumasid for July 13, 1930. The court overruled the demurrer.

A joint trial was held of criminal cases Nos. 4501 and 4502. The fiscal attempted to present as evidence for the
prosecution, the aforementioned Exhibits A, B, C, and D, which are copies of the Ing Magumasid containing
the libelous article with the innuendo, another article in the vernacular published in the same weekly, and its
translation into Spanish. Counsel for the defendant objected to this evidence, which objection was sustained by the
court.

The respondents answered the petition for mandamus, praying for its dismissal with costs against the petitioner.

At the hearing of this case, both parties appeared and moved that they be allowed to present memoranda in lieu of
an oral argument, which memoranda are in the record.

The petitioner contends that the exhibits in question are the best evidence of the libel, the subject matter of the
information, and should therefore be admitted; while the respondents maintain that, inasmuch as the libelous
articles were not quoted in the information, said evidence cannot be admitted without amending the information. The
prosecution asked for an amendment to the information, but the court denied the petition on the ground that it would
impair the rights of the defendant, holding that the omission of the libelous article in the original was fatal to the
prosecution.

The first question raised here is whether an information charging a libel published in an unofficial language,
without including a copy of the libelous article, but only a translation into Spanish, is valid or not. It is true
that in United States vs. Eguia and Lozano (38 Phil., 857), it was stated: "The general rule is that the complaint or
information for libel must set out the particular defamatory words as published, and a statement of their substance
and effect is usually considered insufficient." But this general rule does not exclude certain exceptions, such as,
cases where the libel is published in a non-official language. "When the defamation has been published in a foreign
tongue, it is proper, and in general, necessary, to set out the communication as it was originally made, with an exact
translation into English; and if from the translation no cause of action appears, it is immaterial that the foreign words
were actionable. In some jurisdictions, however, under the influence of the liberality of laws on practice, it is held
unnecessary to set out the communication in the foreign language in which it is alleged to have been published, so
long as the foreign publication is alleged, with an English translation attached." (37 C. J., 27, sec. 336.)

Evidence II.
If the libelous article had been published in one of our official languages, English or Spanish, it would have been
necessary to follow the general rule; but since the article in question was published in the Pampango dialect, it is
sufficient to insert a Spanish translation in the information. The justice of this exception to the general rule becomes
more evident if we consider a libelous article published, for instance, in Moro or Chinese, who use characters
different from our own.

The second question refers to the admissibility of the aforesaid exhibits. The general rules regarding the
admissibility of evidence are applicable to cases of libel or slander. The evidence must be relevant, and not
hearsay. (37 C.J., 151, sec. 688.) This being so, the rule of procedure which requires the production of the best
evidence, is applicable to the present case. And certainly the copies of the weekly where the libelous article was
published, and its translation, constitute the best evidence of the libel charged. The newspaper itself is the best
evidence of an article published in it. (Bond vs. Central Bank of Georgia, 2 Ga., 92.).

The respondent judge undoubtedly has discretion to admit or reject the evidence offered by the fiscal; but in the
instant case his refusal to admit such evidence amounts to an abuse of that discretion, which may be controlled by
this court by means of mandamus proceedings. In so far as the jurisdiction of this court is concerned, we believe the
doctrine is applicable which was held in Orient Insurance Co. vs. Revilla and Teal Motor Co. (54 Phil., 919), namely,
that the Supreme Court has jurisdiction to entertain an application for a writ of mandamus to compel a Court of First
Instance to permit the attorney of a litigant to examine the entire written communication, when part of the same has
been introduced in evidence by the other party.

Wherefore, the writ prayed for against the respondent judge of the Court of First Instance of Pampanga should be
issued, requiring him to admit Exhibits A, B, C, and D, in question in criminal cases Nos. 4501 and 4502 of that
court, and it is so ordered, without special pronouncement of costs.

Evidence II.
28.) Vda. De Corpuz v Brabangco

Digest 1:

Tiburcia Brabangco owned two parcels of land that were subsequently sold to German Corpus as evidenced by a deed of
sale. German and his family occupied the disputed properties until they were forced to leave in 1951. Defendants
contended that the Corpuses’ occupation of the land were by mere accommodation and for the sake of charity. 

The Corpuses alleged that the document of sale was lost during the war so instead they offered Heraclea’s testimony,
environmental facts disclosed by the evidence, and the disinterested testimony of Pablo Albeza (witness at the execution
of the deed of sale) in order to prove the existence of the same to satisfy Sec 51, Rule 123 [now Sec 5, Rule 130]. 

Defendants argued that the family failed to comply with the statutory requirements as the witness “did not give or make a
recital of the contents of the document”.

W/N it is necessary for the witness to accurately give a recital of the contents of the lost document - NO

It is not necessary, in order to admit evidence of the contents of a lost instrument, that the witnesses should be able to
testify with verbal accuracy to its contents of a lost instrument, it is sufficient if they are able to state it in substance. It was
sufficient if the witnesses can recollect and testity to facts showing the presence of the essential elements of a contract
(consent, subject- matter, consideration, and form in certain instances). 

To insist on complete verbal accuracy would be in effect to prohibit entirely the proof of lost documents by recollection

Digest 2:

Evidence II.
Evidence II.
29.) G.R. No. L-28999 May 24, 1977

COMPAÑIA MARITIMA, plaintiff-appellee,
vs.
ALLIED FREE WORKERS UNION, SALVADOR T. LLUCH, MARIANO LL. BADELLES, individually and in their
capacities as President and Vice-President, respectively of the Allied Free Workers Union, NICANOR
HALEBAS and LAURENTINO LL. BADELLES, individually and officers of Allied Free Workers
Union, defendants-appellants.

Halibas, Badelles, Padilla & Sepulveda and Vicente A. Rafael & Associates for defendants-appellants.

Rufino J. Abadies, Francisco Obach & Jesus Quijano for appellee.

AQUINO, J.:

Antecedents. - Since the onset in 1954 of litigation between the parties herein, this is the fifth case between them that has been elevated to this Court. The
incidents preceding the instant appeal are as follows:

On August 11, 1952 the Compañia Maritima and the Allied Free Workers Union entered into a written contract
whereby the union agreed to perform arrastre and stevedoring work for the consignees. vessels at Iligan City. The
contract was to be effective for one month counted from August 12, 1952.

It was stipulated that the company could revoke the contract before the expiration of the term if the union failed to
render proper service. The contract could be renewed by agreement of the parties (Exh. J).

At the time the contract was entered into, the union had just been organized. Its primordial desire was to find work
for its members. The union agreed to the stipulation that the company would not be liable for the payment of the
services of the union "for the loading, unloading and deliveries of cargoes" and that the compensation for such
services would be paid "by the owners and consigness of the cargoes" as "has been the practice in the port of Iligan
City" (Par. 2 of Exh. J).

The union found out later that that stipulation was oppressive and that the company was unduly favored by that
arrangement.

Under the contract, the work of the union consisted of arrastre and stevedoring service. Arrastre, a Spanish word
which refers to hauling of cargo, comprehends the handling of cargo on the wharf or between the establishment of
the consignee or shipper and the ship's tackle. The service is usually performed by longshoremen.

On the other hand, stevedoring refers to the handling of the cargo in the holds of the vessel or between the ship's
tackle and the holds of the vessel.

The shippers and consignees paid the union oth for the arrastre work. They refused to pay for the stevedoring
service. They claimed that the shipowner was the one obligated to pay for the stevedoring service because the bill
of lading provided that the unloading of the cargo was at the shipowner's expense (Exh. 1).

On the other hand, the company refused to pay for the stevedoring service because the contract (Exh. J) explicitly
provided that the compensation for both arrastre and stevedoring work should be paid by the shippers and
consignees, as was the alleged practice in Iligan City, and that the shipowner would not be liable for the payment of
such services.

Thus, the issue of whether the company should pay for the stevedoring service became a sore point of contention
between the parties. The union members labored under the impression that they were not being compensated for
their stevedoring service as distinguished from arrastre service.
Evidence II.
Although the arrastre and stevedoring contract (Exh. J) was disadvantageous to the union, it did not terminate the
contract because its members were in dire need of work and work, which was not adequately compensated, was
preferable to having no work at all (204, 214-5, 226-7 tsn May 20, 1960).

Upon the expiration of the one-month period, the said contract was verbally renewed. The company allowed
the union to continue performing arrastre and stevedoring work.

On July 23, 1954 the union sent a letter to the company requesting that it be recognized as the exclusive bargaining
unit to load and unload the cargo of its vessels at Iligan City. The company ignored that demand. So, the union filed
on August 6, 1954 in the Court of Industrial Relations (CIR) a petition praying that it be certified as the sole collective
bargaining unit.

Despite that certification case, the company on August 24, 1954 served a written notice on the union that, in
accordance with payment of the 1952 contract, the same would be terminated on August 31, 1954. Because of that
notice, the union on August 26, 1954 filed in the CIR charges of unfair labor practice against the company.

On August 31, 1954 the company entered into a new stevedoring and arrastre contract with the Iligan Stevedoring
Association. On the following day, September 1, the union members picketed the wharf and prevented the Iligan
Stevedoring Association from performing arrastre and stevedoring work. The picket lasted for nine days.

On September 8, 1954 the company sued the union and its officers in the Court of First Instance of Lanao for the
rescission of the aforementioned 1952 contract, to enjoin the union from interfering with the loading and unloading
of the cargo, and for the recovery of damages.

On the following day, September 9, the lower court issued ex parte a writ of preliminary injunction after the company
had posted a bond in the sum of P20,000. A few hours lateron that same day the union was allowed to file a
counterbond. The injunction was lifted. The union members resumed their arrastre and stevedoring work.

Later, the union assailed in a prohibition action in this Court the jurisdiction of the trial court to entertain the action
for damages, and injunction.

A majority of this Court held that the lower court had jurisdiction to issue the injunction and to take cognizance of the
damage suit filed by the company but that the injunction was void because it was issued ex parte and the procedure
laid down in section 9(d) of Republic Act No. 875 was not followed by the trial court (Allied Free Workers Union vs.
Judge Apostol, 102 Phil. 292, 298).

After trial, the lower court rendered a decision dated December 5, 1960, amended on January 11, 1961, (1)
declaring the arrastre and stevedoring contract terminated on August $1, 1954; (2) dismissing the union's
counterclaim; (3) ordering the union and its officers to pay solidarily to the company P520,000 as damages, with six
percent interest per annum from September 9, 1954, when the complaint. was filed; (4) permanently enjoining the
union from performing any arrastre and stevedoring work for the company at Iligan City, and (5) requiring the union
to post a supersedeas bond in the sum of P520,000 to stay execution.

The union filed a motion for reconsideration. On the other hand, the company filed a motion for the execution
pending appeal of the money judgment. It filed another motion for the immediate issuance of a writ of injunction.
That second motion was filed in the municipal court of Iligan City in view of the absence of the District Judge.

The municipal court issued the writ of injunction. However, this Court set it aside because it was not an interlocutory
order and no special reasons were adduced to justify its issuance (Allied Free Workers Union vs. Judge Estipona,
113 Phil. 748).

The union on January 6, 1961 had perfected an appeal from the lower court's original decision. It did not appeal
from the amended decision. On March 24, 1962 the lower court issued an order declaring its amended decision final
and executory in view of the union's failure to appeal therefrom. The court directed the clerk of court to issue a writ
of execution. That order was assailed by the union in a certiorari action filed in this Court. A preliminary injunction
was issued by this Court to restrain the execution of the judgment.
Evidence II.
On May 16, 1962 this Court dissolved the injunction at the instance of the company which had filed a counterbond.
Thereupon, the 225 members of the union yielded their ten-year old jobs to the new set of workers contracted by the
company.

The certiorari incident was decided on June 30, 1966. This Court noted that the lower court amended its decision for
the purpose of correcting certain errors and omissions which were not substantial in character and that its amended
decision was served upon the parties after the union had perfected its appeal from the original decision.

Under those circumstances, this Court held that the union's appeal should be given due coarse, subject to the
amendment of its record on appeal. This Court reserved to the members of the union the right to secure restitution
under sections 2 and 5, Rule 39 of the Rules of Court (Allied Free Workers Union vs. Estipona, L-19651, June 30,
1966,17 SCRA 513, 64 O.G. 2701).

Pursuant to that reservation, the union on December 16, 1966 filed a motion for restitution, praying that its 225
members be restored to their jobs and that the company be ordered to pay P 1,620,000 as damages, consisting of
the lost earnings during the four-years period from May 8, 1962 to May 8, 1966.

On the other hand, the company in its motion of January 18, 1967 reiterated its 1960 motion for the execution of the
lower court's judgment as to the damages, of P520,000 and the permanent injunction.

Later, the company called the lower court's attention to this Court's decision dated January 31, 1967. In that
decision, this Court affirmed the CIR's decision holding that the company did not commit any unfair labor practice
and reversed the CIR's directive that a certification election be held to determine whether the union should be the
exonemtod bargaining unit. This Court held that the union could not act as a collective bargaining unit because the
union was an independent contractor and its members were not employees of the company (Allied Free Workers
Union vs. Compañia Maritima, L-22951-2 and L-22971, 19 SCRA 258).

The lower court in its order of April 25, 1967 (1) denied the union's motion for restitution and to stay execution of its
amended decision on January 11, 1961 and (2) required the union to file a supersedeas bond in the sum of
P100,000 within thirty days from notice. The bond was reduced to P50,000 in the lower court's order of August 16,
1967. The union posted the bond on August 24,1967.

The lower court approved the union's amended record on appeal in its order of October 6, 1967.

The union appealed directly to this Court because the amount involved exceeds P200,000. The appeal was
perfected before Republic Act No. 5440 took effect on September 9,1968.

Other proceedings. - The company in its original complaint prayed that the union and its officials be ordered to pay
actual damages, amounting to P15,000 for the union's failure to load and unload cargo in and from the consignees.
vessels from September 1 to 8, 1954; P50,000 as damages, due to the union's inefficiency in performing arrastre
and stevedoring work "during the latter part of the existence" of the contract; P50,000 as moral and exemplary
damages, (not supported by any allegation in the body of the complaint) and P5,000 as attorney's Considering (10-
12, Record on Appeal).

On September 15, 1954 the company added a fourth cause ofaction to its complaint. It alleged that by reason of the
acts of harassment and obstruction perpetrated by the union in the loading and unloading ofcargo the company
suffered additional damage in the form of lost and unrealized freight and passenger charges in the amount of
P10,000 for September 9 and 10, 1954 (66, Record on Appeal).

On November 2, 1954 the company attached to its motion for the revival of the injunction against the union an
auditor's report dated September 15, 1954 wherein it was indicated that the company lost freight revenues
amounting to P178,579.20 during the period from January 1 to September 7, 1954 (121-143, Record on Appeal).

On November 27, 1954 the company filed another motion for the restoration of the injunction. In support of that
motion the company attached a trip operation report showing the unloaded cargoes on the consignees. vessels,

Evidence II.
when they docked at Iligan City on September 14, 19, 22 and 26 and October 3 and 5, 1954, as well as the delays
in their departure (157-162, Record on Appeal).

On March 5, 1955 the company added a fifth cause ofaction too its complaint. It alleged that during the period from
September 12 to December 28, 1954 it lost freight charges on unloaded cargoes in the sum of P62,680.12, as
shown in a detailed statement, and that it incurred an estimated amount of P20,000 for overhead expenses. for the
delay in the dismissal of its vessels attributable to the union's unsatisfactory stevedoring and arrastre work (225-
229, 237-8, Record on Appeal).

Also on March 5, 1955 the union answered the original and supplemental complaints. It denied that its members
had rendered inefficient service. It averred that the termination of the contract was prompted by the consignees.
desire to give the work to the Iligan Stevedoring Association which the company had allegedly organized and
subsidized. The union filed a counterclaim for P200,000 as compensation for its services to the company and
P500,000 as other damages, (239-252, Record on Appeal).

On March 9, 1960 the company filed a third supplemental complaint, It alleged that the continuation of the
stevedoring and arrastre work by the union for the company from 1955 to date had caused losses to the company at
the rate of P25,000 annually in the form of lost freight on shutout cargoes and the expenses. for the equipment used
to assist the union members in performing their work (320-3, Record on Appeal).

Plaintiff company's evidence. - Jose C. Teves, the consignees. branch manager at Iligan City, testified that on
August 24, 1954 he terminated the arrastre and stevedoring contract with the union (Exh. J) upon instruction of the
head office. The contract was terminated in order to avoid further losses to the company caused by the union's
inefficient service (85-86 tsn March 11, 1960).

After the termination of the contract, the members of the union allegedly harassed the company with the help of
goons. The cargoes could not be unloaded in spite of the fact that the company had sought the protection of the
law-enforcing authorities (88). The consignees. last recourse was to go to court. (89).

The company supposedly suffered losses as a result of the union's inefficient service since September 1, 1954 (91).
Teves hired auditors to ascertain the losses suffered by the company during the period from January 1 to
September 11, 1954.

The trial court awarded actual damages, amounting to P450,000 on the basis of the auditor's reports, Exhibits A to I.
It did not carefully examine the said exhibits. Contrary to the trial court's impression, Exhibits B, C and D are not
auditors' reports.

The trial court did not bother to make a breakdown of the alleged damages, totalling P450,000. The reports of the
two hired accountants, Demetrio S. Jayme and M. J. Siojo, show the following alleged damages, in the aggregate
amount of P349,245.37 (not P412,663.17, as erroneously added by the consignees. counsel, 161,163-4 tsn March
11, 1960):

TABULATION OF ALLEGED

DAMAGES CLAIMED BY COMPAÑIA MARITIMA

(1) Freight for 74,751 bags of fertilizer  

allegedly booked for shipment in the  

company's vessels but loaded in other vessels  

during the period from Jan. 1 to August 31,  

Evidence II.
 1954, Statement A in Exh. A, CPA Jayme's  

report......................................................... P29,900.40

(2) Lost freight on other shutout cargoes  

for January 1 to August 31, 1954, Statement A  

in Exh. A, of CPA Jayme ......................... 4,339.64

(3) Lost freight on shutout cargoes for  

September 2 to 7, 1954 booked for shipment in  

M. V. Mindoro, Panay and Masterhead Knot,  

Statement B in Exh. A, CPA Jayme's report... 6,167.16

(4) Losses sustained in voyages of M.V.  

Panay and Mindoro in four voyages from  

September 4 to 11, 1954, with estimates,  

Statement B, Exh. A............................... 3,764.50

(5) Other estimated losses for the said  

voyages of M.V. Panay and Mindoro for the  

same period, based on interviews of parties at  

the wharf, Statement B, Exh. A............... 10,000.00

(6) Additional subsistence expenses. for the  

M.V. Mindoro and Panay due to the delays in  

their dismissal from January 1 to August 31,  

1954 as certified by the pursers of the two  

vessels, Statement C, Exh. A..................... 4,407.50

(7) Estimated loss in freight and passenger  

revenue for the period from January 1 to  

August 31, 1954, based on 1953 freight revenue  

for the same period Statement D, Exh. A..... 100,000.00

(8) Estimated loss in passenger fares for  

Evidence II.
 the period from September to December 31,  

1954, Statement D, Exh. A....................... 20,000.00

(9) Lost freight charges from September  

12 to December 28, 1954, as certified by the  

chief clerk of the consignees. Iligan office. Exh.  

B............................................................. 62,680.12

(10) Estimated overhead expenses for  

delay of vessels in port, Exh. B................. 20,000.00

(11) Forklift operating expenses. for 1955,  

consisting of salaries and maintenance  

expenses, Exh. E- 1.................................... 5,677.54

(12) Lost freight revenue for 1955, Exh. E-  

2............................................................... 17,838.78

(13) Forklift operating expenses. for 1956,  

Exh. F- 1................................................... 3,520.90

(14) Lost freight revenue for 1956, Exh. F-2 3,849.56

(15) Forklift operating expenses. for 1957,  

Exh. G- 1................................................... 8,259.08

(16) Lost freight revenue for 1957, Exh. G-  

2.................................................................... 14,538.10

(17) Forklift operating expenses. for 1958,  

Exh. H-1................................................... 7,503.45

(18) Lost freight revenue for 1958, Exh. H-  

2............................................................. 10,193.46

(19) Forklift operating expenses. for 1959,  

Exh. I-1.................................................... 8,745.35

(20) Lost freight revenue for 1959, Exh. I-2 7,959.83

Evidence II.
 T OT A L - P349,245.37

We tabulated the alleged damages, to show that the trial court's award to the company of P450,000 as damages, is
not supported by the evidence. On the other hand, the statement of the consignees. counsel that the damages,
totalled P412,663.17 (162- 164 tsn March 11, 1960) is wrong.

Teves, the consignees. branch manager, submitted a statement (Exh. K) showing the alleged cost of three forklifts,
200 pieces of pallet boards, 530 pieces of wire rope slings and two pieces of tarpaulins in the total sum of P27,215.
In that statement, he claims that the damages, to the company by reason of the depreciation of the said items of
equipment amounted to P38,835 or more than the cost thereof.

The company's counsel, in his summary of the damages, ignored the alleged damages, of P38,835 indicated by
Teves in Exhibit K. The consignees. counsel relied oth on the auditors' reports, Exhibits A and E to I and on Exhibit
B, the chief clerk's statement. As already noted, those documents show that the total damages, claimed by the
company amounted to P349,245.37.

The best evidence on the cost of the said equipment would have been the sales invoices instead of the oral
testimony of Teves. He did not produce the sales invoices.

Teves further testified that Salvador T. Lluch was the president of the union; Nicanor Halibas, the treasurer; Mariano
Badelles, the general manager, and Luarentino Badelles, a vice president.

Appellants' statement of facts. - To sustain their appeal, the appellants made the following exceedingly short and
deficient recital of the facts:

Sometime in the month of August, 1954, defendant, Allied Free Workers Union filed an unfair labor
practice case against defendant (should be plaintiff) and its branch manager, Mr. Jose Teves, with
the Court of Industrial Relations, Manila, and docketed as Case No. 426-UPL: defendant union also
filed a petition for certification election docketed as Case No, 175-MC against plaintiff; defendant
union also filed a notice of strike dated August 27, 1954; the Secretary of Labor wired the public
defender, Iligan City, on August 27, 1954 (see annexes 1-4, motion to dismiss, Record on Appeal,
pp. 54-65).

To counteract these legitimate moves of labor, plaintiff filed the complaint docketed as Civil Case
No. 577 in the Court of First Instance of Lanao (now Lanao del Norte) for damages, and/or resolution
of contract with writ of preliminary injunction, On a decision adverse to their interests, defendants
take this appeal.

On the question of jurisdiction taken before this Honorable Tribunal in G.R. No. L-8876, it was held:

... for the instant case merely refers to the recovery of damages, occasioned by the picketing
undertaken by the members of the union and the rescission of the arrastre and stevedoring contract
previously entered into between the parties.

The appellants did not discuss their oral and documentary evidence. *

First assignment of error. - The appellants contend that the trial court erred in awarding to the company actual
damages, amounting to P450,000, moral damages, of P50,000 and attorney's Considering of P20,000, and in
holding that the four officers of the union are solidarily liable for the said damages.

Appellants' counsel assailed the award of actual damages, on the ground that the auditors' reports, on which they
were based, were hearsay.

After analyzing the nature of the damages, awarded, how the same were computed, and the trustworthiness of the
company's evidence, we find the first assignment of error meritorious.
Evidence II.
We have already stress that, on the basis of the reports of the two accountants, the damages, claimed by the
complaint as a matter of simple addition, does not reach the sum of P 450,000 fixed by the trial court. The damages,
shown in the accountants' reports and in the statement made by the consignees. chief clerk (who did not testify)
amount to P349,245.37, or much less than P450,000.

The company argues that the accountants' reports are admissible in evidence because of the rule that
"when the original consists of numerous accounts or other documents which cannot be examined in court
without great loss-of time and the fact sought to be established from them is oth the general result of the
whole", the original writings need not be produced (Sec. 2[e], Rule 130, Rules of Court).

That rule cannot be applied in this case because the voluminous character of the records, on which the
accountants' reports were based, was not duly established (U. S. vs. Razon and Tayag, 37 Phil. 856, 861; 29
Am Jur 2nd 529).

It is also a requisite for the application of the rule that the records and accounts should be made accessible
to the adverse party so that the company, of the summary may be tested on cross-examination (29 Am Jur
2nd 517-8; 32A C.J.S. 111).

What applies to this case is the general rule "that an audit made by, or the testimony of, a private auditor, is
inadmissible in evidence as proof of the original records, books of accounts, reports or the like" (Anno 52 ALR
1266).

That general rule cannot be relaxed in this case because the company failed to make a preliminary showing
as to the difficulty or impossibility attending the production of the records in court and their examination
and analysis as evidence by the court (29 Am Jur 2nd 529).

A close scrutiny of the accountants' reports reveals their lack of probative value. The propriety of allowing the
different items of damages, is discussed below.

Unrealized freight and passenger revenue for 1954 ascertained by Accountant Demetrio S. Jayme. - In his report
(Exh. A, pp. 134 to 147, Record on Appeal), Jayme used the pronouns "we" and "our" and made reference to the
examination made by the "auditors" and his accounting office.

He did not disclose the names of other "auditors" who assisted him in making the examination of the consignees.
records.

He gave the impression that he was an independent accountant hired by the company to make a "special
investigation" of the consignees. losses for the period from January 1 to September 7, 1954.

The truth is that Jayme was a "personal friend" of Teves, the consignees. branch manager at Iligan City. Teves was
the consignees. principal witness in this case. He verified the complaint. herein. He signed for the company the
stevedoring and arrastre contract which he later rescinded. In fact, Teves intervened in the drafting of the contract. It
was his Idea that the company should not pay the arrastre and stevedoring Considering and that those charges
should be borne by the shippers and consignees.

Jayme was not only the friend of Teves but was also his co-employee. Jayme was the consignees. branch manager
at Ozamis City and later at Cagayan de Oro City (217-8 tsn May 20, 1960; Exh. 12). He suppressed that fact in his
report of examination. Apparently, the practice of accounting was his sideline or he practised accounting and, as the
saying goes, he moonlighted as the consignees. branch manager. Obviously, Jayme would be biased for the
company. He violated a rule of the accountants' code of ethics by not disclosing in his report of examination that he
was an employee of the company (84 tsn June 2, 1960).

Accountant Jayme allegedly found from the consignees. records at Iligan City that its freight and passenger revenue
for the eight- month period from January 1 to August 31, 1953 amounted to P373,333.14 and that for the same
period in 1954, that revenue amounted to P470,716.29, or an increase of P97,383.12 (Statement D of Exh. A, 145,
Record on Appeal).
Evidence II.
Jayme interpreted those figures as signifying that the company would have realized more revenue if the union had
rendered better service. He reasoned out that there was a big volume of business in Iligan City due to the Maria
Cristina Fertilizer Plant, Iligan Steel Mill and NPC Hydroelectric Plant. He imagined that the consignees. freight
revenue during the first eight months of 1954 could have amounted to at least P600,000 and that since it actually
realized oth P 470,716.29, its loss of freight revenue for that period could be "conservatively" estimated at least
P100,000 (item 7 of the tabulation of damages).

He stated that he attached to his report on the comparative statement of gross revenue a certificate of the captain of
the vessel Panay showing the delays in its dismissal in Iligan City as indicated in its logbook. No such document
was attached to Jayme's report.

And from the fact that the total fares received by the company during the eight-month period were reduced in the
sum of P3,951.58 (Jayme fixed the reduction at the round figure of P4,000), he calculated that the company
suffered a loss of at least P20,000 in passenger revenue up to December 31, 1954 (Item 8 of the tabulation of
damages).

Jayme also included in his report (a) damages, amounting to P10,000 as his estimate of losses supposedly "based
on interviews with disinterested parties at the wharf and city proper customers"; (b) damages, amounting to
P3,764.50 allegedly suffered in the operation of the vessels Mindoro and Panay from September 4 to 11, 1954,
consisting of extra meals, expenses. for unloading cargo, estimated loss in passage revenue for four voyages, and
estimated loss from 14 re-routed freights to competing vessels" (consisting of rice, corn and bananas), and (e) the
sum of P4,407.50 as alleged additional subsistence incurred for the crew of the Panay and Mindoro from January 1
to August 31, 1954 (items 4, 5 and 6 of the tabulation of damages). The records of the purser and chief steward
were allegedly examined in ascertaining those damages.

It would not be proper to allow Jayme's estimates as recoverable damages. They are not supported by reliable
evidence. They can hardly be sanctioned by the "generally accepted auditing standards" alluded to in Jayme's
report. The pertinent records of the company should have been produced in court. The purser and steward did not
testify.

The rule is that the auditor's summary should not include his conclusions or inferences (29 Am Jur 2d 519). His
opinion is not evidence.

The trial court unreservedly gave credence to the conjectures of Jayme. Obviously, his inflated guesses are
inherently speculative and devoid of probative value. Furthermore, his estimate of the unrealized freight revenue for
January 1 to August 31, 1954 overlapped with his computation of the lost freight for the unloaded 74,751 bags of
fertilizer and other cargoes covering the same period (Statement A of Exh. A).

The foregoing discussion shows Jayme's unreliable modus operandi in ascertaining the 1954 losses which the
company claimed to have suffered in consequence of the union's alleged inefficiency or poor service. It is
noteworthy that those losses were not averred with particularity and certitude in the consignees. complaint.

The same observations apply with equal cogency to the damages, amounting to P40,407.20 as lost freight revenue
also for the year 1954 (items 1 to 3 of the tabulation of damages) which were computed by Accountant Jayme.

Those items refer to (1) the sum of P29,900.40 as lost freight revenue on 74,751 bags of fertilizer, already
mentioned, which were booked for shipment in the consignees. vessels from January 1 to August 31, 1954 but
which were allegedly loaded in other vessels; (2) P4,339.64 as unrealized freight revenue for other cargoes booked
in the consignees. vessels but not loaded therein during the same eight-month period, and (3) P6,167,16 as
unrealized freight revenue on shutout cargoes not loaded in the consignees. vessels during the six-day period from
September 2 to 7, 1954.

Jayme allegedly based his computations on the records of the company which were not produced in court. The
union objected to Jayme's report as inadmissible under the hearsay rule or as not being the best evidence.

Evidence II.
Even if the presentation of the records themselves as exhibits should have been dispensed with, yet the complaint
to show good faith and fair dealing, could have brought the records in court (manifests, bills of lading, receipts for
the freights, if any, etc.) and enabled the court and the union's counsel and its expert accountant to verify the
accuracy of Jayme's summaries.

Photostatic copies of some manifests and bills of lading proving that the company was not able to collect the
stipulated freight on the alleged shutout cargoes should have been proforma. in evidence as supporting papers for
Jayme's report. No such exhibits were presented.

The flaw or error in relying merely on Jayme's summaries is that, as pointed out by witness Mariano LL. Badelles,
cargoes might be shutout due to causes other than the supposed inefficiency of the union. He testified that cargoes
were shutout deliberately by the company because they could not be loaded in one vessel (for example, 50,000
bags of fertilizer), or a shipper had no allotment, or because the company did not want to load cargoes like bananas
(189-194 tsn May 20, 1960). Jayme's summaries did not take into account the probability that a part of the cargo
booked in the consignees. vessel for a certain date might not have been loaded on that date but was loaded in
another vessel of the company which docked at the port a few days later, In that case, there would be no loss of
freight revenue. The mere shutting out of cargo in a particular voyage did not ipso facto produce loss of freight
revenue.

Our conclusion is that an injustice would be perpetrated if the damages, aggregating P178,579 computed and
estimated in the report of Jayme, a biased witness, should be accepted at their face value.

Damages computed by Salvador M. Magante. - The company also claims as damages, for the period from
September 12 to December 28, 1954 lost freight charges on shutout cargoes in the sum of P62,680.12, and the
sum of P20,000 as "overhead expenses. for delay of vessels in port", as set forth by Salvador M. Magante, the
consignees. chief clerk at Iligan City, in his statement, Exhibit B (items 9 and 10 of the tabulation of damages).

Magante did not testify on his statement. Instead, accountant Jayme, substituting for Magante, testified on that
statement. Jayme said that he verified the consignees. records on which Magante based his statement. Jayme
assured the court that the figures in Magante's statement were supported by the consignees. records.

But as to the damages, of P20,000, Jayme said that he could not certify as to their company, because he had not
finished his investigation (33 tsn March 9, 1955). In spite of that admission, the trial court allowed that item of
damages.

The trial court erred in allowing the damages, totalling P82,680.12 because Magante's statement, Exhibit B, is
hearsay. Magante should have been proforma. as a witness. Jayme was not competent to take his place since the
statement was prepared by Magante, not by Jayme. More appropriate still, the documents and records on which the
statement was based should have been proforma. as evidence or at least brought to the court for examination by
the union's counsel and its accountant. The trial court required the production of the manifests supporting Magante's
statement (85-86 tsn march 9, 1955). Only one such manifest, Exhibit C, was produced. The nonproduction of the
other records was not explained.

Lost freight revenue and operating expenses for the forklifts. - The company claimed as damages, the sum of
P87,986.05 (P151,403.85 as erroneously computed by the consignees. counsel, 163 tsn March 11, 1950) consisting
of supposed unrealized freight charges for shutout or unloaded cargoes for the year 1955 to 1959 (Exh. E to I, Items
11 to 20 of the tabulation of damages).

The claim is covered by the company's third supplemental complaint dated March 9, 1960 wherein it was alleged
that due to the acts of the union and its officers the company had suffered damages, of not less than P25,000
annually since 1955 (320-3, Record on Appeal). That supplemental complaint was hurriedly filed during the trial as
directed by the trial court.

The said damages, were computed in the reports of Miguel J. Siojo, an accountant who, for two days and nights,
March 8 to 10, 1960, or shortly before and during the trial, allegedly examined the consignees. record at Iligan City,
such as its cash book, cash vouchers, reports to the head office, shipping manifests, and liquidation reports. Those

Evidence II.
records were not produced in court. Their nonproduction was not explained. If the accountant was able to
summarize the contents of those records in two days, they could not have been very voluminous. They should have
been offered in evidence.

The alleged expenses. in the operation of the forklifts consisted of (a) the wates of the operators hired by the
company and (b) the cost of gasoline and oil and expenses. for repair.

The company's theory is that under the 1952 contract (Exh. J) the union was obligated to provide for forklifts in the
loading and unloading of cargo. Inasmuch as the union allegedly did not have forklifts, the complaint to expedite the
arrastre and stevedoring work, purchase forklifts, hired laborers to operate the same, and paid for the maintenance
expenses. The company treated those expenses as losses or damages.

Those alleged damages, amounting to P87,986.05 are in the same category as the depreciation allowances
amounting to P38,835 which the company claimed for the forklifts, pallet boards, tarpaulins and wire rope slings that
it purchased for oth P27,215, We have stated that the consignees. counsel ignored that depreciation in his
recapitulation of the damages, claimed by the plaintiff.

The union contends that Siojo's reports (Exh. E to I) were inadmissible evidence because they were hearsay,
meaning that the original documents, on which the reports were based, were not presented in evidence and,
therefore, appellants' counsel and the court itself were not able to gauge the correctness of the figures or data
contained in the said reports. The person who had personal knowledge of the operating expenses. was not
examined in court.

We are of the opinion that, to avoid fraud or fabrication, the documents evidencing the alleged expenses. should
have been proforma. in evidence. Siojo's reports were not the best evidence on the said operating expenses. The
explanation of Badelles with respect to shutout cargoes and our observations on Jayme's summaries are applicable
to accountant Siojo's reports.

A more substantial ground for rejecting Siojo's reports is that the said expenses, if really incurred, cannot be
properly treated as darn ages to the company.

The union's witness, Mariano LI. Badelles, testified that the consignees. forklifts were not used exclusively on the
wharf. They were used in the fertilizer and carbide plants. Sometimes, the union supplied the driver and the gasoline
for the operation of the forklifts (174-177 tsn May 20, 1960).

Moreover, as stated earlier, the company was not paying the union a single centavo for arrastre and stevedoring
work. The shippers and consignees paid for the arrastre service rendered by the union. The union did not receive
any compensation for stevedoring work.

The company complained that the union had been rendering unsatisfactory arrastre and stevedoring services. That
grievance was controverted by the union.

The use of the forklifts, tarpaulins pallet boards and wire rope slings immeasurably benefitted the company. It is not
proper nor just that the consignees. investment in those pieces of equipment should be considered damages, just
because it was able to bind the union to a one-sided contract which exempted it from the payment of arrastre and
stevedoring Considering and which impliedly obligated the union to purchase the said equipment.

If the service rendered by the union members was unsatisfactory, it must be because the poor stevedores were
underfed and underpaid. They were underfed and underpaid because the company was astute enough to insure
that it would obtain stevedoring service without paying for it.

If to improve the arrastre and stevedoring service, the company had to incur expenses. for the purchase of forklifts,
pallet boards, tarpaulins and wire rope slings and for the operation of the forklifts, the union should not be required
to reimburse the company for those expenses. The company should bear those expenses. because the same
redounded to its benefit.

Evidence II.
The trial court erred in ordering the union and its officials to pay the amount of the said expenses. as damages, to
the company.

Moral damages and attorney's fees. - Considering that the consignees. claim for moral damages, was based on the
same facts on which it predicated its claim for actual deduction which we have found to be groundless, it follows that
the company, a juridical person, is not entitled to moral damages.

Anyway, the company did not plead and prove moral damages. It merely claimed moral damages, in the prayer of
its complaint. That is not sufficient (Darang vs. Ty Belizar, L-19487, January 31, 1967, 19 SCRA 214, 222).

Under the facts of this case, we do not find any justification for awarding attorney's Considering to the company.
Hence, the trial court's award of P20,000 as attorney's Considering is set aside.

Appellants' first assignment of error, although not properly argued by their counsel, should be sustained.

Other assignments of error. - The union and its officers contend that the lower court erred in dismissing their
counterclaims. Their counsel did not even bother to state in their brief the amount of the counterclaims.

The union filed counterclaims for P200,000 as compensation for stevedoring services from August, 1952 to March 4,
1955; P500,000 as deduction P10,000 as attorney's Considering and P5,000 as premium on the counterbond (251-
2, Record on Appeal). In their supplemental counterclaim, they demanded P500,000 as stevedoring charges for the
period from March 4, 1955 to March 4, 1960 and additional damages, of P10,000 (308-10, Record on Appeal). The
trial court dismissed the said counterclaims.

The appellants in their three-sentence argument in support of their counterclaims alleged that the company's bill of
lading provided that the unloading of the cargoes was at the consignees. expense (Exh. 1); that the company had
not paid the sum of P500,000 as compensation for the stevedoring services rendered by the laborers up to 1960,
and that the stipulation in the arrastre contract, "that the Compañia Maritima shall not be liable for the payment of
the services rendered by the Allied Free Workers Union for the loading and deliveries of cargoes as same is payable
by the owners and consignees of cargoes, as it has been the practice in the port of Iligan City" (Exh. J, pp. 14, 334,
359, 500 Record on Appeal), was 'non- operative" and void, "being contrary to morals and public policy".

That superficial argument is not well-taken. The printed stipulation in the bill of lading was superseded by the
contractual stipulation. The contract was prepared by the union officials. As already noted, it was stipulated in the
contract that the stevedoring and arrastre charges should be paid by the shippers and consignees in consonance
with the practice in Iligan City. That stipulation was binding and enforceable.

The supposed illegality of that stipulation was not squarely raised by the union and its officials in their answer. They
merely averred that the contract did not express the true agreement of the parties. They did not sue for reformation
of the instrument evidencing the contract. The lower court did not err in dismissing defendants' counterclaims.

The other two errors assigned by the appellants, namely, that the lower court erred in issuing a permanent
injunction against them and in executing its decision pending appeal, are devoid of merit.

The appellants invoke section 9(d) of the Magna Carta of Labor regarding the issuance of injunctions. That section
has no application to this case because it was definitively ruled by this Court in the certification and unfair labor
practice cases that there is no employer-employee relationship between the company and the stevedores. (They
work under the cabo system).

The lower court did not execute the money aspect of its judgment. It merely required the defendants to file a
supersedeas bond of P50,000.

As to the injunction, it should be recalled that it was this Court which, in its resolution of May 16, 1962 in the
execution and appeal incident (L-19651, 17 SCRA 513), allowed the company to terminate the stevedoring and
arrastre work of the union and to use another union to perform that work.

Evidence II.
The company had the contractual right to terminate the 1952 contract (Taylor vs. Uy Teng Piao, 43 Phil. 873). The
lower court did not err in sustaining the consignees. rescission of the contract and in enjoining the union from
performing arrastre and stevedoring work.

WHEREFORE, that portion of the trial court's judgment declaring the arrastre and stevedoring contract terminated,
permanently enjoining the union and its officials from performing arrastre and stevedoring work for the vessels of the
Compañia Maritima, and dismissing defendants' counterclaim is affirmed.

Evidence II.
30.) G.R. No. L-23893            October 29, 1968

VILLA REY TRANSIT, INC., plaintiff-appellant,

vs.
EUSEBIO E. FERRER, PANGASINAN TRANSPORTATION CO., INC. and PUBLIC SERVICE
COMMISSION, defendants.
EUSEBIO E. FERRER and PANGASINAN TRANSPORTATION CO., INC., defendants-appellants.

PANGASINAN TRANSPORTATION CO., INC., third-party plaintiff-appellant,

vs.
JOSE M. VILLARAMA, third-party defendant-appellee.

Chuidian Law Office for plaintiff-appellant.

Bengzon, Zarraga & Villegas for defendant-appellant / third-party plaintiff-appellant.
Laurea & Pison for third-party defendant-appellee.

ANGELES, J.:

This is a tri-party appeal from the decision of the Court of First Instance of Manila, Civil Case No. 41845, declaring
null and void the sheriff's sale of two certificates of public convenience in favor of defendant Eusebio E. Ferrer and
the subsequent sale thereof by the latter to defendant Pangasinan Transportation Co., Inc.; declaring the plaintiff
Villa Rey Transit, Inc., to be the lawful owner of the said certificates of public convenience; and ordering the private
defendants, jointly and severally, to pay to the plaintiff, the sum of P5,000.00 as and for attorney's fees. The case
against the PSC was dismissed.

The rather ramified circumstances of the instant case can best be understood by a chronological narration of the
essential facts, to wit:

Prior to 1959, Jose M. Villarama was an operator of a bus transportation, under the business name of Villa Rey
Transit, pursuant to certificates of public convenience granted him by the Public Service Commission (PSC, for
short) in Cases Nos. 44213 and 104651, which authorized him to operate a total of thirty-two (32) units on various
routes or lines from Pangasinan to Manila, and vice-versa. On January 8, 1959, he sold the aforementioned two
certificates of public convenience to the Pangasinan Transportation Company, Inc. (otherwise known as Pantranco),
for P350,000.00 with the condition, among others, that the seller (Villarama) "shall not for a period of 10 years from
the date of this sale, apply for any TPU service identical or competing with the buyer."

Barely three months thereafter, or on March 6, 1959: a corporation called Villa Rey Transit, Inc. (which shall be
referred to hereafter as the Corporation) was organized with a capital stock of P500,000.00 divided into 5,000
shares of the par value of P100.00 each; P200,000.00 was the subscribed stock; Natividad R. Villarama (wife of
Jose M. Villarama) was one of the incorporators, and she subscribed for P1,000.00; the balance of P199,000.00
was subscribed by the brother and sister-in-law of Jose M. Villarama; of the subscribed capital stock, P105,000.00
was paid to the treasurer of the corporation, who was Natividad R. Villarama.

In less than a month after its registration with the Securities and Exchange Commission (March 10, 1959), the
Corporation, on April 7, 1959, bought five certificates of public convenience, forty-nine buses, tools and equipment
from one Valentin Fernando, for the sum of P249,000.00, of which P100,000.00 was paid upon the signing of the
contract; P50,000.00 was payable upon the final approval of the sale by the PSC; P49,500.00 one year after the
final approval of the sale; and the balance of P50,000.00 "shall be paid by the BUYER to the different suppliers of
the SELLER."

The very same day that the aforementioned contract of sale was executed, the parties thereto immediately applied
with the PSC for its approval, with a prayer for the issuance of a provisional authority in favor of the vendee
Corporation to operate the service therein involved. 1 On May 19, 1959, the PSC granted the provisional permit
prayed for, upon the condition that "it may be modified or revoked by the Commission at any time, shall be subject
to whatever action that may be taken on the basic application and shall be valid only during the pendency of said

Evidence II.
application." Before the PSC could take final action on said application for approval of sale, however, the Sheriff of
Manila, on July 7, 1959, levied on two of the five certificates of public convenience involved therein, namely, those
issued under PSC cases Nos. 59494 and 63780, pursuant to a writ of execution issued by the Court of First
Instance of Pangasinan in Civil Case No. 13798, in favor of Eusebio Ferrer, plaintiff, judgment creditor, against
Valentin Fernando, defendant, judgment debtor. The Sheriff made and entered the levy in the records of the PSC.
On July 16, 1959, a public sale was conducted by the Sheriff of the said two certificates of public convenience.
Ferrer was the highest bidder, and a certificate of sale was issued in his name.

Thereafter, Ferrer sold the two certificates of public convenience to Pantranco, and jointly submitted for approval
their corresponding contract of sale to the PSC.2 Pantranco therein prayed that it be authorized provisionally to
operate the service involved in the said two certificates.

The applications for approval of sale, filed before the PSC, by Fernando and the Corporation, Case No. 124057,
and that of Ferrer and Pantranco, Case No. 126278, were scheduled for a joint hearing. In the meantime, to wit, on
July 22, 1959, the PSC issued an order disposing that during the pendency of the cases and before a final
resolution on the aforesaid applications, the Pantranco shall be the one to operate provisionally the service under
the two certificates embraced in the contract between Ferrer and Pantranco. The Corporation took issue with this
particular ruling of the PSC and elevated the matter to the Supreme Court, 3 which decreed, after deliberation, that
until the issue on the ownership of the disputed certificates shall have been finally settled by the proper court, the
Corporation should be the one to operate the lines provisionally.

On November 4, 1959, the Corporation filed in the Court of First Instance of Manila, a complaint for the annulment of
the sheriff's sale of the aforesaid two certificates of public convenience (PSC Cases Nos. 59494 and 63780) in favor
of the defendant Ferrer, and the subsequent sale thereof by the latter to Pantranco, against Ferrer, Pantranco and
the PSC. The plaintiff Corporation prayed therein that all the orders of the PSC relative to the parties' dispute over
the said certificates be annulled.

In separate answers, the defendants Ferrer and Pantranco averred that the plaintiff Corporation had no valid title to
the certificates in question because the contract pursuant to which it acquired them from Fernando was subject to a
suspensive condition — the approval of the PSC — which has not yet been fulfilled, and, therefore, the Sheriff's levy
and the consequent sale at public auction of the certificates referred to, as well as the sale of the same by Ferrer to
Pantranco, were valid and regular, and vested unto Pantranco, a superior right thereto.

Pantranco, on its part, filed a third-party complaint against Jose M. Villarama, alleging that Villarama and the
Corporation, are one and the same; that Villarama and/or the Corporation was disqualified from operating the two
certificates in question by virtue of the aforementioned agreement between said Villarama and Pantranco, which
stipulated that Villarama "shall not for a period of 10 years from the date of this sale, apply for any TPU service
identical or competing with the buyer."

Upon the joinder of the issues in both the complaint and third-party complaint, the case was tried, and thereafter
decision was rendered in the terms, as above stated.

As stated at the beginning, all the parties involved have appealed from the decision. They submitted a joint record
on appeal.

Pantranco disputes the correctness of the decision insofar as it holds that Villa Rey Transit, Inc. (Corporation) is a
distinct and separate entity from Jose M. Villarama; that the restriction clause in the contract of January 8, 1959
between Pantranco and Villarama is null and void; that the Sheriff's sale of July 16, 1959, is likewise null and void;
and the failure to award damages in its favor and against Villarama.

Ferrer, for his part, challenges the decision insofar as it holds that the sheriff's sale is null and void; and the sale of
the two certificates in question by Valentin Fernando to the Corporation, is valid. He also assails the award of
P5,000.00 as attorney's fees in favor of the Corporation, and the failure to award moral damages to him as prayed
for in his counterclaim.

Evidence II.
The Corporation, on the other hand, prays for a review of that portion of the decision awarding only P5,000.00 as
attorney's fees, and insisting that it is entitled to an award of P100,000.00 by way of exemplary damages.

After a careful study of the facts obtaining in the case, the vital issues to be resolved are: (1) Does the stipulation
between Villarama and Pantranco, as contained in the deed of sale, that the former "SHALL NOT FOR A PERIOD
OF 10 YEARS FROM THE DATE OF THIS SALE, APPLY FOR ANY TPU SERVICE IDENTICAL OR COMPETING
WITH THE BUYER," apply to new lines only or does it include existing lines?; (2) Assuming that said stipulation
covers all kinds of lines, is such stipulation valid and enforceable?; (3) In the affirmative, that said stipulation is valid,
did it bind the Corporation?

For convenience, We propose to discuss the foregoing issues by starting with the last proposition.

The evidence has disclosed that Villarama, albeit was not an incorporator or stockholder of the Corporation, alleging
that he did not become such, because he did not have sufficient funds to invest, his wife, however, was an
incorporator with the least subscribed number of shares, and was elected treasurer of the Corporation. The
finances of the Corporation which, under all concepts in the law, are supposed to be under the control and
administration of the treasurer keeping them as trust fund for the Corporation, were, nonetheless,
manipulated and disbursed as if they were the private funds of Villarama, in such a way and extent that
Villarama appeared to be the actual owner-treasurer of the business without regard to the rights of the stockholders.
The following testimony of Villarama, 4 together with the other evidence on record, attests to that effect:

Q.       Doctor, I want to go back again to the incorporation of the Villa Rey Transit, Inc. You heard the
testimony presented here by the bank regarding the initial opening deposit of ONE HUNDRED FIVE
THOUSAND PESOS, of which amount Eighty-Five Thousand Pesos was a check drawn by yourself
personally. In the direct examination you told the Court that the reason you drew a check for Eighty-Five
Thousand Pesos was because you and your wife, or your wife, had spent the money of the stockholders
given to her for incorporation. Will you please tell the Honorable Court if you knew at the time your wife was
spending the money to pay debts, you personally knew she was spending the money of the incorporators?

A.       You know my money and my wife's money are one. We never talk about those things.

Q.       Doctor, your answer then is that since your money and your wife's money are one money and you did
not know when your wife was paying debts with the incorporator's money?

A.       Because sometimes she uses my money, and sometimes the money given to her she gives to me
and I deposit the money.

Q.       Actually, aside from your wife, you were also the custodian of some of the incorporators here, in the
beginning?

A.       Not necessarily, they give to my wife and when my wife hands to me I did not know it belonged to the
incorporators.

Q.       It supposes then your wife gives you some of the money received by her in her capacity as treasurer
of the corporation?

A.       Maybe.

Q.       What did you do with the money, deposit in a regular account?

A.       Deposit in my account.

Q.       Of all the money given to your wife, she did not receive any check?

A.       I do not remember.

Evidence II.
 Q.       Is it usual for you, Doctor, to be given Fifty Thousand Pesos without even asking what is this?

xxx           xxx           xxx

JUDGE:    Reform the question.

Q.       The subscription of your brother-in-law, Mr. Reyes, is Fifty-Two Thousand Pesos, did your wife give
you Fifty-two Thousand Pesos?

A.       I have testified before that sometimes my wife gives me money and I do not know exactly for what.

The evidence further shows that the initial cash capitalization of the corporation of P105,000.00 was mostly financed
by Villarama. Of the P105,000.00 deposited in the First National City Bank of New York, representing the initial paid-
up capital of the Corporation, P85,000.00 was covered by Villarama's personal check. The deposit slip for the said
amount of P105,000.00 was admitted in evidence as Exh. 23, which shows on its face that P20,000.00 was paid in
cash and P85,000.00 thereof was covered by Check No. F-50271 of the First National City Bank of New York. The
testimonies of Alfonso Sancho5 and Joaquin Amansec,6 both employees of said bank, have proved that the drawer
of the check was Jose Villarama himself.

Another witness, Celso Rivera, accountant of the Corporation, testified that while in the books of the
corporation there appears an entry that the treasurer received P95,000.00 as second installment of the paid-
in subscriptions, and, subsequently, also P100,000.00 as the first installment of the offer for second
subscriptions worth P200,000.00 from the original subscribers, yet Villarama directed him (Rivera) to make
vouchers liquidating the sums.7 Thus, it was made to appear that the P95,000.00 was delivered to Villarama
in payment for equipment purchased from him, and the P100,000.00 was loaned as advances to the
stockholders. The said accountant, however, testified that he was not aware of any amount of money that
had actually passed hands among the parties involved,8 and actually the only money of the corporation was
the P105,000.00 covered by the deposit slip Exh. 23, of which as mentioned above, P85,000.00 was paid by
Villarama's personal check.

Further, the evidence shows that when the Corporation was in its initial months of operation, Villarama purchased
and paid with his personal checks Ford trucks for the Corporation. Exhibits 20 and 21 disclose that the said
purchases were paid by Philippine Bank of Commerce Checks Nos. 992618-B and 993621-B, respectively. These
checks have been sufficiently established by Fausto Abad, Assistant Accountant of Manila Trading & Supply Co.,
from which the trucks were purchased 9 and Aristedes Solano, an employee of the Philippine Bank of
Commerce,10 as having been drawn by Villarama.

Exhibits 6 to 19 and Exh. 22, which are photostatic copies of ledger entries and vouchers showing that
Villarama had co-mingled his personal funds and transactions with those made in the name of the
Corporation, are very illuminating evidence. Villarama has assailed the admissibility of these exhibits,
contending that no evidentiary value whatsoever should be given to them since "they were merely
photostatic copies of the originals, the best evidence being the originals themselves." According to him, at
the time Pantranco offered the said exhibits, it was the most likely possessor of the originals thereof
because they were stolen from the files of the Corporation and only Pantranco was able to produce the
alleged photostat copies thereof.

Section 5 of Rule 130 of the Rules of Court provides for the requisites for the admissibility of secondary
evidence when the original is in the custody of the adverse party, thus: (1) opponent's possession of the
original; (2) reasonable notice to opponent to produce the original; (3) satisfactory proof of its existence;
and (4) failure or refusal of opponent to produce the original in court.11 Villarama has practically admitted
the second and fourth requisites.12 As to the third, he admitted their previous existence in the files of the
Corporation and also that he had seen some of them. 13 Regarding the first element, Villarama's theory is that
since even at the time of the issuance of the subpoena duces tecum, the originals were already missing,
therefore, the Corporation was no longer in possession of the same. However, it is not necessary for a party
seeking to introduce secondary evidence to show that the original is in the actual possession of his
adversary. It is enough that the circumstances are such as to indicate that the writing is in his possession
or under his control. Neither is it required that the party entitled to the custody of the instrument should, on
Evidence II.
being notified to produce it, admit having it in his possession.14 Hence, secondary evidence is admissible
where he denies having it in his possession. The party calling for such evidence may introduce a copy
thereof as in the case of loss. For, among the exceptions to the best evidence rule is "when the original has
been lost, destroyed, or cannot be produced in court."15 The originals of the vouchers in question must be
deemed to have been lost, as even the Corporation admits such loss. Viewed upon this light, there can be
no doubt as to the admissibility in evidence of Exhibits 6 to 19 and 22.

Taking account of the foregoing evidence, together with Celso Rivera's testimony, 16 it would appear that:
Villarama supplied the organization expenses and the assets of the Corporation, such as trucks and
equipment;17 there was no actual payment by the original subscribers of the amounts of P95,000.00 and
P100,000.00 as appearing in the books; 18 Villarama made use of the money of the Corporation and deposited
them to his private accounts;19 and the Corporation paid his personal accounts.20

Villarama himself admitted that he mingled the corporate funds with his own money. 21 He also admitted that
gasoline purchases of the Corporation were made in his name 22 because "he had existing account with Stanvac
which was properly secured and he wanted the Corporation to benefit from the rebates that he received." 23

The foregoing circumstances are strong persuasive evidence showing that Villarama has been too much involved in
the affairs of the Corporation to altogether negative the claim that he was only a part-time general manager. They
show beyond doubt that the Corporation is his alter ego.

It is significant that not a single one of the acts enumerated above as proof of Villarama's oneness with the
Corporation has been denied by him. On the contrary, he has admitted them with offered excuses.

Villarama has admitted, for instance, having paid P85,000.00 of the initial capital of the Corporation with the lame
excuse that "his wife had requested him to reimburse the amount entrusted to her by the incorporators and which
she had used to pay the obligations of Dr. Villarama (her husband) incurred while he was still the owner of Villa Rey
Transit, a single proprietorship." But with his admission that he had received P350,000.00 from Pantranco for the
sale of the two certificates and one unit,24 it becomes difficult to accept Villarama's explanation that he and his wife,
after consultation,25 spent the money of their relatives (the stockholders) when they were supposed to have their
own money. Even if Pantranco paid the P350,000.00 in check to him, as claimed, it could have been easy for
Villarama to have deposited said check in his account and issued his own check to pay his obligations. And there is
no evidence adduced that the said amount of P350,000.00 was all spent or was insufficient to settle his prior
obligations in his business, and in the light of the stipulation in the deed of sale between Villarama and Pantranco
that P50,000.00 of the selling price was earmarked for the payments of accounts due to his creditors, the excuse
appears unbelievable.

On his having paid for purchases by the Corporation of trucks from the Manila Trading & Supply Co. with his
personal checks, his reason was that he was only sharing with the Corporation his credit with some companies. And
his main reason for mingling his funds with that of the Corporation and for the latter's paying his private bills is that it
would be more convenient that he kept the money to be used in paying the registration fees on time, and since he
had loaned money to the Corporation, this would be set off by the latter's paying his bills. Villarama admitted,
however, that the corporate funds in his possession were not only for registration fees but for other important
obligations which were not specified. 26

Indeed, while Villarama was not the Treasurer of the Corporation but was, allegedly, only a part-time manager, 27 he
admitted not only having held the corporate money but that he advanced and lent funds for the Corporation, and yet
there was no Board Resolution allowing it.28

Villarama's explanation on the matter of his involvement with the corporate affairs of the Corporation only renders
more credible Pantranco's claim that his control over the corporation, especially in the management and disposition
of its funds, was so extensive and intimate that it is impossible to segregate and identify which money belonged to
whom. The interference of Villarama in the complex affairs of the corporation, and particularly its finances, are much
too inconsistent with the ends and purposes of the Corporation law, which, precisely, seeks to separate personal
responsibilities from corporate undertakings. It is the very essence of incorporation that the acts and conduct of the
corporation be carried out in its own corporate name because it has its own personality.

Evidence II.
The doctrine that a corporation is a legal entity distinct and separate from the members and stockholders who
compose it is recognized and respected in all cases which are within reason and the law. 29 When the fiction is urged
as a means of perpetrating a fraud or an illegal act or as a vehicle for the evasion of an existing obligation, the
circumvention of statutes, the achievement or perfection of a monopoly or generally the perpetration of knavery or
crime,30 the veil with which the law covers and isolates the corporation from the members or stockholders who
compose it will be lifted to allow for its consideration merely as an aggregation of individuals.

Upon the foregoing considerations, We are of the opinion, and so hold, that the preponderance of evidence have
shown that the Villa Rey Transit, Inc. is an alter ego of Jose M. Villarama, and that the restrictive clause in the
contract entered into by the latter and Pantranco is also enforceable and binding against the said Corporation. For
the rule is that a seller or promisor may not make use of a corporate entity as a means of evading the obligation of
his covenant.31 Where the Corporation is substantially the alter ego of the covenantor to the restrictive agreement, it
can be enjoined from competing with the covenantee. 32

The Corporation contends that even on the supposition that Villa Rey Transit, Inc. and Villarama are one and the
same, the restrictive clause in the contract between Villarama and Pantranco does not include the purchase of
existing lines but it only applies to application for the new lines. The clause in dispute reads thus:

(4) The SELLER shall not, for a period of ten (10) years from the date of this sale apply for any TPU service
identical or competing with the BUYER. (Emphasis supplied)

As We read the disputed clause, it is evident from the context thereof that the intention of the parties was to
eliminate the seller as a competitor of the buyer for ten years along the lines of operation covered by the certificates
of public convenience subject of their transaction. The word "apply" as broadly used has for frame of reference, a
service by the seller on lines or routes that would compete with the buyer along the routes acquired by the latter. In
this jurisdiction, prior authorization is needed before anyone can operate a TPU service, 33whether the service
consists in a new line or an old one acquired from a previous operator. The clear intention of the parties was to
prevent the seller from conducting any competitive line for 10 years since, anyway, he has bound himself not to
apply for authorization to operate along such lines for the duration of such period. 34

If the prohibition is to be applied only to the acquisition of new certificates of public convenience thru an application
with the Public Service Commission, this would, in effect, allow the seller just the same to compete with the buyer as
long as his authority to operate is only acquired thru transfer or sale from a previous operator, thus defeating the
intention of the parties. For what would prevent the seller, under the circumstances, from having a representative or
dummy apply in the latter's name and then later on transferring the same by sale to the seller? Since stipulations in
a contract is the law between the contracting parties,

Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give
everyone his due, and observe honesty and good faith. (Art. 19, New Civil Code.)

We are not impressed of Villarama's contention that the re-wording of the two previous drafts of the contract of sale
between Villarama and Pantranco is significant in that as it now appears, the parties intended to effect the least
restriction. We are persuaded, after an examination of the supposed drafts, that the scope of the final stipulation,
while not as long and prolix as those in the drafts, is just as broad and comprehensive. At most, it can be said that
the re-wording was done merely for brevity and simplicity.

The evident intention behind the restriction was to eliminate the sellers as a competitor, and this must be,
considering such factors as the good will35 that the seller had already gained from the riding public and his
adeptness and proficiency in the trade. On this matter, Corbin, an authority on Contracts has this to say. 36

When one buys the business of another as a going concern, he usually wishes to keep it going; he wishes to
get the location, the building, the stock in trade, and the customers. He wishes to step into the seller's shoes
and to enjoy the same business relations with other men. He is willing to pay much more if he can get the
"good will" of the business, meaning by this the good will of the customers, that they may continue to tread
the old footpath to his door and maintain with him the business relations enjoyed by the seller.

Evidence II.
 ... In order to be well assured of this, he obtains and pays for the seller's promise not to reopen business in
competition with the business sold.

As to whether or not such a stipulation in restraint of trade is valid, our jurisprudence on the matter 37says:

The law concerning contracts which tend to restrain business or trade has gone through a long series of
changes from time to time with the changing condition of trade and commerce. With trifling exceptions, said
changes have been a continuous development of a general rule. The early cases show plainly a disposition
to avoid and annul all contract which prohibited or restrained any one from using a lawful trade "at any time
or at any place," as being against the benefit of the state. Later, however, the rule became well established
that if the restraint was limited to "a certain time" and within "a certain place," such contracts were valid and
not "against the benefit of the state." Later cases, and we think the rule is now well established, have held
that a contract in restraint of trade is valid providing there is a limitation upon either time or place. A contract,
however, which restrains a man from entering into business or trade without either a limitation as to time or
place, will be held invalid.

The public welfare of course must always be considered and if it be not involved and the restraint upon one
party is not greater than protection to the other requires, contracts like the one we are discussing will be
sustained. The general tendency, we believe, of modern authority, is to make the test whether the restraint
is reasonably necessary for the protection of the contracting parties. If the contract is reasonably necessary
to protect the interest of the parties, it will be upheld. (Emphasis supplied.)

Analyzing the characteristics of the questioned stipulation, We find that although it is in the nature of an agreement
suppressing competition, it is, however, merely ancillary or incidental to the main agreement which is that of sale.
The suppression or restraint is only partial or limited: first, in scope, it refers only to application for TPU by the seller
in competition with the lines sold to the buyer; second, in duration, it is only for ten (10) years; and third, with respect
to situs or territory, the restraint is only along the lines covered by the certificates sold. In view of these limitations,
coupled with the consideration of P350,000.00 for just two certificates of public convenience, and considering,
furthermore, that the disputed stipulation is only incidental to a main agreement, the same is reasonable and it is not
harmful nor obnoxious to public service.38 It does not appear that the ultimate result of the clause or stipulation would
be to leave solely to Pantranco the right to operate along the lines in question, thereby establishing monopoly or
predominance approximating thereto. We believe the main purpose of the restraint was to protect for a limited time
the business of the buyer.

Indeed, the evils of monopoly are farfetched here. There can be no danger of price controls or deterioration of the
service because of the close supervision of the Public Service Commission. 39 This Court had stated long ago, 40 that
"when one devotes his property to a use in which the public has an interest, he virtually grants to the public an
interest in that use and submits it to such public use under reasonable rules and regulations to be fixed by the
Public Utility Commission."

Regarding that aspect of the clause that it is merely ancillary or incidental to a lawful agreement, the underlying
reason sustaining its validity is well explained in 36 Am. Jur. 537-539, to wit:

... Numerous authorities hold that a covenant which is incidental to the sale and transfer of a trade or
business, and which purports to bind the seller not to engage in the same business in competition with the
purchaser, is lawful and enforceable. While such covenants are designed to prevent competition on the part
of the seller, it is ordinarily neither their purpose nor effect to stifle competition generally in the locality, nor to
prevent it at all in a way or to an extent injurious to the public. The business in the hands of the purchaser is
carried on just as it was in the hands of the seller; the former merely takes the place of the latter; the
commodities of the trade are as open to the public as they were before; the same competition exists as
existed before; there is the same employment furnished to others after as before; the profits of the business
go as they did before to swell the sum of public wealth; the public has the same opportunities of purchasing,
if it is a mercantile business; and production is not lessened if it is a manufacturing plant.

The reliance by the lower court on tile case of Red Line Transportation Co. v. Bachrach41 and finding that the
stipulation is illegal and void seems misplaced. In the said Red Line case, the agreement therein sought to be
enforced was virtually a division of territory between two operators, each company imposing upon itself an obligation
Evidence II.
not to operate in any territory covered by the routes of the other. Restraints of this type, among common carriers
have always been covered by the general rule invalidating agreements in restraint of trade. 42

Neither are the other cases relied upon by the plaintiff-appellee applicable to the instant case. In Pampanga Bus
Co., Inc. v. Enriquez,43the undertaking of the applicant therein not to apply for the lifting of restrictions imposed on
his certificates of public convenience was not an ancillary or incidental agreement. The restraint was the principal
objective. On the other hand, in Red Line Transportation Co., Inc. v. Gonzaga,44 the restraint there in question not to
ask for extension of the line, or trips, or increase of equipment — was not an agreement between the parties but a
condition imposed in the certificate of public convenience itself.

Upon the foregoing considerations, Our conclusion is that the stipulation prohibiting Villarama for a period of 10
years to "apply" for TPU service along the lines covered by the certificates of public convenience sold by him to
Pantranco is valid and reasonable. Having arrived at this conclusion, and considering that the preponderance of the
evidence have shown that Villa Rey Transit, Inc. is itself the alter ego of Villarama, We hold, as prayed for in
Pantranco's third party complaint, that the said Corporation should, until the expiration of the 1-year period
abovementioned, be enjoined from operating the line subject of the prohibition.

To avoid any misunderstanding, it is here to be emphasized that the 10-year prohibition upon Villarama is not
against his application for, or purchase of, certificates of public convenience, but merely the operation of TPU along
the lines covered by the certificates sold by him to Pantranco. Consequently, the sale between Fernando and the
Corporation is valid, such that the rightful ownership of the disputed certificates still belongs to the plaintiff being the
prior purchaser in good faith and for value thereof. In view of the ancient rule of caveat emptor prevailing in this
jurisdiction, what was acquired by Ferrer in the sheriff's sale was only the right which Fernando, judgment debtor,
had in the certificates of public convenience on the day of the sale. 45

Accordingly, by the "Notice of Levy Upon Personalty" the Commissioner of Public Service was notified that "by
virtue of an Order of Execution issued by the Court of First Instance of Pangasinan, the rights, interests, or
participation which the defendant, VALENTIN A. FERNANDO — in the above entitled case may have in the
following realty/personalty is attached or levied upon, to wit: The rights, interests and participation on the Certificates
of Public Convenience issued to Valentin A. Fernando, in Cases Nos. 59494, etc. ... Lines — Manila to Lingayen,
Dagupan, etc. vice versa." Such notice of levy only shows that Ferrer, the vendee at auction of said certificates,
merely stepped into the shoes of the judgment debtor. Of the same principle is the provision of Article 1544 of the
Civil Code, that "If the same thing should have been sold to different vendees, the ownership shall be transferred to
the person who may have first taken possession thereof in good faith, if it should be movable property."

There is no merit in Pantranco and Ferrer's theory that the sale of the certificates of public convenience in question,
between the Corporation and Fernando, was not consummated, it being only a conditional sale subject to the
suspensive condition of its approval by the Public Service Commission. While section 20(g) of the Public Service Act
provides that "subject to established limitation and exceptions and saving provisions to the contrary, it shall be
unlawful for any public service or for the owner, lessee or operator thereof, without the approval and authorization of
the Commission previously had ... to sell, alienate, mortgage, encumber or lease its property, franchise, certificates,
privileges, or rights or any part thereof, ...," the same section also provides:

... Provided, however, That nothing herein contained shall be construed to prevent the transaction from
being negotiated or completed before its approval or to prevent the sale, alienation, or lease by any public
service of any of its property in the ordinary course of its business.

It is clear, therefore, that the requisite approval of the PSC is not a condition precedent for the validity and
consummation of the sale.

Anent the question of damages allegedly suffered by the parties, each of the appellants has its or his own version to
allege.

Villa Rey Transit, Inc. claims that by virtue of the "tortious acts" of defendants (Pantranco and Ferrer) in acquiring
the certificates of public convenience in question, despite constructive and actual knowledge on their part of a prior
sale executed by Fernando in favor of the said corporation, which necessitated the latter to file the action to annul
the sheriff's sale to Ferrer and the subsequent transfer to Pantranco, it is entitled to collect actual and compensatory
Evidence II.
damages, and attorney's fees in the amount of P25,000.00. The evidence on record, however, does not clearly
show that said defendants acted in bad faith in their acquisition of the certificates in question. They believed that
because the bill of sale has yet to be approved by the Public Service Commission, the transaction was not a
consummated sale, and, therefore, the title to or ownership of the certificates was still with the seller. The award by
the lower court of attorney's fees of P5,000.00 in favor of Villa Rey Transit, Inc. is, therefore, without basis and
should be set aside.

Eusebio Ferrer's charge that by reason of the filing of the action to annul the sheriff's sale, he had suffered and
should be awarded moral, exemplary damages and attorney's fees, cannot be entertained, in view of the conclusion
herein reached that the sale by Fernando to the Corporation was valid.

Pantranco, on the other hand, justifies its claim for damages with the allegation that when it purchased ViIlarama's
business for P350,000.00, it intended to build up the traffic along the lines covered by the certificates but it was rot
afforded an opportunity to do so since barely three months had elapsed when the contract was violated by Villarama
operating along the same lines in the name of Villa Rey Transit, Inc. It is further claimed by Pantranco that the
underhanded manner in which Villarama violated the contract is pertinent in establishing punitive or moral damages.
Its contention as to the proper measure of damages is that it should be the purchase price of P350,000.00 that it
paid to Villarama. While We are fully in accord with Pantranco's claim of entitlement to damages it suffered as a
result of Villarama's breach of his contract with it, the record does not sufficiently supply the necessary evidentiary
materials upon which to base the award and there is need for further proceedings in the lower court to ascertain the
proper amount.

PREMISES CONSIDERED, the judgment appealed from is hereby modified as follows:

1. The sale of the two certificates of public convenience in question by Valentin Fernando to Villa Rey Transit, Inc. is
declared preferred over that made by the Sheriff at public auction of the aforesaid certificate of public convenience
in favor of Eusebio Ferrer;

2. Reversed, insofar as it dismisses the third-party complaint filed by Pangasinan Transportation Co. against Jose
M. Villarama, holding that Villa Rey Transit, Inc. is an entity distinct and separate from the personality of Jose M.
Villarama, and insofar as it awards the sum of P5,000.00 as attorney's fees in favor of Villa Rey Transit, Inc.;

3. The case is remanded to the trial court for the reception of evidence in consonance with the above findings as
regards the amount of damages suffered by Pantranco; and

4. On equitable considerations, without costs. So ordered.

Evidence II.
31.) G.R. No. L-10824 December 24, 1915

E. MICHAEL & CO., INC., plaintiff-appellant,

vs.
ADRIANO ENRIQUEZ, defendant-appellee.

Sepulveda, Pelaez and Espina for appellant.

No appearance for appellee.

MORELAND, J.:

This is an appeal from a judgment of the Court of First Instance of Cebu dismissing the action after trial on the
ground that the plaintiff did not prove facts sufficient to constitute a cause of action.

We are of the opinion that the judgment must be reversed and a new trial ordered. itc-a1f

The action is based on a sale with a right to repurchase made by Adriano Enriquez in favor of E. Michael and E.
Michael & Co., sociedad en comandita, of which appellant claims to be the successor, by reason of an instrument,
duly executed and delivered by said companies to appellant, transferring property, business and assets of every
kind, including the land which is the subject of this litigation. It is alleged in the complaint that the time to repurchase
having expired, the title to the property became absolute in appellant and that it is accordingly the owner of the land
described in said instruments. On the trial appellant sought to prove the execution and delivery of the conveyance
transferring to it the land described in the sale with right to repurchase. The trial court prevented appellant from the
proving the fact. Appellant also attempted to prove the fact that the instrument so executed and delivered was lost, it
being his purpose to lay the basis for the introduction of secondary evidence as to its contents. The trial court also
prevented appellant from proving that fact.

While the efforts of appellant's counsel to prove the execution and delivery were at times rather informal and
inartificial and objections to such questions were properly sustained, at others the questions put for the purpose of
proving those facts were well framed and answer should have been allowed to them; but, even in such cases, the
trial court also sustained objections to the questions and the evidence sought to be adduced was excluded. The
same may be said with respect to the attempts to establish the loss of the document. Exceptions were taken by
plaintiff's counsel to all adverse rulings of the court respecting the admission of evidence tending to establish the
execution and delivery and the subsequent loss of the document in question, thus laying them proper foundation for
the bringing up the rulings of the court on those matters.

Trial courts do well in refusing at all times to permit the introduction of incompetent evidence and particularly
secondary evidence of the contents of written instruments unless the facts required by the Code of Civil Procedure
as the conditions precedent for such evidence are clearly shown to exist. Section 321 of the Code provides: "An
original writing must be produced and proved, except as otherwise provided in this Act. If it has been lost, proof of
the loss must first be made before evidence can be given of its contents. Upon such proof being made, together
with proof of the due execution of the writing, its contents may be proved by a copy or by a recital of its contests in
some authentic document, or by the recollection of a witness."

As will be seen from this section, the writing itself must be produced unless it has been lost or destroyed in which
case, before its contents may be proved by other evidence, it must be shown by the person offering the secondary
evidence (1) that the document was duly executed and delivered, where delivery is necessary, and (2) that it has
been lost or destroyed. The execution and delivery of the document may be established by the person or persons
who executed it, by the person before whom its execution was acknowledged, pr by any person who was present
and saw it executed and delivered or who, after its execution and delivery, saw it and recognized the signatures; or
by a person to whom the parties to the instruments had previously confessed the execution thereof. The destruction
of the instrument may be proved by any person knowing the fact. The loss may be shown by any person who knew
Evidence II.
the fact of its loss, or by anyone who has made, in the judgment of the court, a sufficient examination in the place
where the document or papers of similar character are usually kept by the person in whose custody the document
lost was, and has been unable to find it; or who has made any other investigation which is sufficient to satisfy the
court that the instrument is indeed lost. If it appears, on an attempt to prove the loss, that the document is in fact in
existence, then the proof of the loss or destruction fails and secondary evidence is inadmissible unless section 322
of the Code of Civil Procedure should be applicable. After proper proof of the due execution and delivery of the
instrument and its loss or destruction, oral evidence may be give of its contents by any person who signed the
document, or who read it, or who heard it read knowing, or it being proved from other sources, that the document so
read was the one in question. Such evidence may also be given by any person who was present when the contents
of the document were talked over between the parties thereto to such an extent as to give him reasonably full
information as to its contents; or the contents may be proved by any person to whom the parties to the instrument
have confessed or stated the contents thereof; or by a copy thereof; or by a recital of its contents in some authentic
document.

Objections were sustained by the trial court to several question put by appellants counsel relative to the due
execution and delivery of the instrument of transfer between the partnership of E. Michael & Co., sociedad en
comandita, and appellant, on the ground that counsel, in an attempt to identify the document to which his question
referred, described or characterized it as an instrument of transfer or cession. Counsel, if he had desired to identify
the instrument to which the question referred, might have done better, perhaps, if he asked the witness if he knew of
the execution of an instrument between appellant and its predecessor in interest relating to the lands described in
the complaint or to the property and business of E. Michael & Co., sociedad en comandita, instead of asking him if
he knew of the execution of a document between appellant and his predecessors in interest transferring the lands in
question, or the property and business of E. Michael & Co., sociedad en comandita, the appellant. Having obtained
an affirmative answer to the question indicated counsel could then have shown how the witness came to know of
the execution or existence of the document, and, if such circumstances disclosed that the witness was sufficiently
acquainted with the facts, he would have been allowed to testify to its execution and delivery. After this had been
done the document might then have been presented for identification and when identified, offered in evidence. If its
contents showed that it referred to the lands described in the complaint, its admissibility would have been instantly
evident.

The mere fact that counsel for appellant, in putting his question to the witness, characterized or described the
instrument as one of transfer, while objectionable, was not sufficient to cut him off altogether from proving the
execution and delivery of the document if other requisites were present. While it is always best to avoid
characterizations of that kind, its harm is minimized where the case is tried before a court instead of a jury, the court
well knowing that it cannot accept the characterization as evidence but must go to the document itself or the
evidence of its contents to determine its nature and legal effect. Trial courts should not be so strict with reference to
matters of the character under discussion as to cause a miscarriage of justice; but on the other hand, they should
see to it that they are not impose on by the introduction of fabricated testimony and that injustice shall not result
from an evasion of the rules of evidence by designing persons. 1awphil.net

We are of the opinion on the whole record that proper questions, tending to the production of very material and
competent evidence, were put by plaintiff's counsel, objections to which were sustained by the trial court; and that
the error thus committed was not cure by subsequent questions and answers or by the introduction of the same
evidence in different manner or form.

The judgment must be reversed and a new trial ordered without costs in this instance. So ordered.

Evidence II.
32.) G.R. No. 83377 February 9, 1993

BASILIO DE VERA, LUIS DE VERA, FELIPE DE VERA, HEIRS OF EUSTAQUIA DE VERA-PAPA represented
by GLICERIA PAPA-FRANCISCO, et al., petitioners,
vs.
SPOUSES MARIANO AGUILAR and LEONA V. AGUILAR, respondents.

Pablo M. Gancayaco for petitioners.

De Mesa, Villarica & Associates for respondents.

CAMPOS, JR., J.:

This is a petition for review on certiorari of the decision * of the Court of Appeals dated November 27, 1987 in CA-
GR CV No. 07448 entitled, "Basilio de Vera, Luis de Vera, Felipe de Vera, Heirs of Eustaquia de Vera-Papa,
represented by Gliceria Papa-Francisco, and Heirs of Maria de Vera-Torres, represented by Luis V. Torres,
plaintiffs-appellees versus Spouses Mariano Aguilar and Leona V. Aguilar, defendants-appellants", which reversed
the decision ** of the Regional Trial Court of Bulacan, Third Judicial Region, Branch 14, for failure of petitioners to
prove the loss or destruction of the original deed of sale and of all its duplicate original copies.

The undisputed facts are as follows:

Petitioners Basilio, Luis, Felipe, Eustaquia and Maria, all surnamed de Vera and respondent Leona, married to
respondent Mariano Aguilar, are the children and heirs of the late Marcosa Bernabe who died on May 10, 1960. In
her lifetime, Marcosa Bernabe owned the disputed parcel of land situated in Camalig, Meycauayan, Bulacan, with
an area of 4,195 square meters, designated as Cadastral Lot No. 3621, Cad. 337, Case No. 4, Meycauayan
Cadastre.

The disputed property was mortgaged by petitioners Basilio and Felipe de Vera to a certain Atty. Leonardo
Bordador. When the mortgage had matured, the respondents redeemed the property from Atty. Leonardo Bordador
and in turn Marcosa Bernabe sold the same to them as evidenced by a deed of absolute sale dated February 11,
1956.

On February 13, 1956, the respondents registered the deed with the Registry of Deeds of Bulacan resulting in the
cancellation of the tax declaration in the name of Marcosa Bernabe and the issuance of another in the name of the
Aguilars. Since then and up to the present, the Aguilars have been paying taxes on the land.

On July 20, 1977, respondent Mariano Aguilar was issued a free patent to the land on the basis of which Original
Certificate of Title No. P-1356(M) was issued in his name.

On September 1, 1980, the petitioners wrote to the respondents claiming that as children of Marcosa Bernabe, they
were co-owners of the property and demanded partition thereof on threats that the respondents would be charged
with perjury and/or falsification. The petitioners also claimed that the respondents had resold the property to
Marcosa Bernabe on April 28, 1959.

On September 27, 1980, the respondents wrote in reply to the petitioners that they were the sole owners of the
disputed parcel of land and denied that the land was resold to Marcosa Bernabe.

True to petitioners' threat, they filed a falsification case against the respondents. However, on March 31, 1981,
Assistant Provincial Fiscal Arsenio N. Mercado of Bulacan recommended dismissal of the charge of falsification of
public document against the respondents for lack of a prima facie case.

Evidence II.
On March 26, 1981, petitioners filed a suit for reconveyance of the lot covered by Original Certificate of Title No. P-
1356(M).

On July 31, 1985, the trial court rendered its decision *** the dispositive portion of which reads as follows:

WHEREFORE, judgment is hereby rendered ordering defendants:

1. To reconvey the property in question to the plaintiffs;

2. To pay plaintiffs P10,000.00 as litigation expenses;

3. To pay plaintiffs P5,000.00 as exemplary damages;

4. To pay P10,000.00 as attorney's fees.

SO ORDERED. 1

In ruling in favor of the petitioners, the trial court admitted, over the objection of the respondents, Exhibit A
purporting to be a xeroxed copy of an alleged deed of sale executed on April 28, 1959 by the respondents selling,
transferring and conveying unto Marcosa Bernabe the disputed parcel of land for and in consideration of P1,500.00.

Not contented with the decision, respondents appealed to the Court of Appeals contending that they never sold
back to Marcosa Bernabe the disputed parcel of land. Furthermore, respondents contended that since the
petitioners have failed to produce the original of the alleged deed of sale dated April 28, 1959, the same was not the
best evidence of the alleged sale hence it should have been excluded and should not have been accorded any
evidentiary value. On the other hand, the petitioners claimed that the existence of the document of sale dated April
28, 1959 had been duly established by the testimony of the notary public before whom it was acknowledged and by
Luis de Vera who was present during its execution and that the loss of the original document had been proven by
the testimony of the representatives of the offices of the National Archives and the Provincial Assessor of Bulacan.

On November 29, 1987, the Court of Appeals rendered its decision reversing the trial court's decision. It found that
the loss or destruction of the original deed of sale has not been duly proven by the petitioners. Hence, secondary
evidence, i.e., presentation of the xeroxed copy of the alleged deed of sale is inadmissible.

Hence this petition.

The crux of this case is whether or not the petitioners have satisfactorily proven the loss of the original deed of sale
so as to allow the presentation of the xeroxed copy of the same.

We rule in the negative.

Section 4 of Rule 130 (now Section 5, Rule 130) of the Rules of Court on Secondary Evidence states:

Sec. 4. Secondary evidence when original is lost or destroyed. — When the original writing has been
lost or destroyed, or cannot be produced in court, upon proof of its execution and loss or destruction,
or unavailability, its contents may be proved by a copy, or by a recital of its contents in some
authentic document, or by the recollection of witnesses.

Secondary evidence is admissible when the original documents were actually lost or destroyed. But prior to the
introduction of such secondary evidence, the proponent must establish the former existence of the instrument. The
correct order of proof is as follows: Existence; execution; loss; contents although this order may be changed if
necessary in the discretion of the court. The sufficiency of proof offered as a predicate for the admission of an
alleged lost deed lies within the judicial discretion of the trial court under all the circumstances of the particular case. 2

Evidence II.
A reading of the decision of the trial court shows that it merely ruled on the existence and due execution of the
alleged deed of sale dated April 28, 1959. It failed to look into the facts and circumstances surrounding the loss or
destruction of the original copies of the alleged deed of sale.

In the case at bar, the existence of an alleged sale of a parcel of land was proved by the presentation of a xeroxed
copy of the alleged deed of absolute sale.

In establishing the execution of a document the same may be established by the person or persons who executed
it, by the person before whom its execution was acknowledged, or by any person who was present and saw it
executed or who, after its execution, saw it and recognized the signatures; or by a person to whom the parties to the
instrument had previously confessed the execution thereof. 3

We agree with the trial court's findings that petitioners have sufficiently established the due execution of the alleged
deed of sale through the testimony of the notary public to wit:

Preponderance of evidence clearly disclosed the facts that Atty. Ismael Estela prepared Exhibit A.
Atty. Emiliano Ibasco, Jr. positively identified the signatures appearing therein to be that (sic) of the
spouses and witnesses Luis de Vera and Ismael Estela, in his capacity as Notary Public who ratified
the document. 4

After the due execution of the document has been established, it must next be proved that said document has been
lost or destroyed. The destruction of the instrument may be proved by any person knowing the fact. The loss may be
shown by any person who knew the fact of its loss, or by any one who had made, in the judgment of the court, a
sufficient examination in the place or places where the document or papers of similar character are usually kept by
the person in whose custody the document lost was, and has been unable to find it; or who has made any other
investigation which is sufficient to satisfy the court that the instrument is indeed lost.
5

However, all duplicates or counterparts must be accounted for before using copies. For, since all the duplicates or
multiplicates are parts of the writing itself to be proved, no excuse for non-production of the writing itself can be
regarded as established until it appears that all of its parts are unavailable (i.e. lost, retained by the opponent or by a
third person or the like).
6

In the case at bar, Atty. Emiliano Ibasco, Jr., notary public who notarized the document testified that the alleged
deed of sale has about four or five original copies.  Hence, all originals must be accounted for before secondary
7

evidence can be given of any one. This petitioners failed to do. Records show that petitioners merely accounted for
three out of four or five original copies.

In reversing the trial court, the respondent Court of Appeals considered the following points:

Asked on the witness stand where the original of the document (Exhibit A) was, plaintiff-appellee
Luis de Vera answered that it was with the Provincial Assessor in Malolos, Bulacan, whereupon the
appellees reserved its (sic) right to present it in evidence (p. 11, tsn., August 11, 1981, Steno,
Tecson). The same question propounded to the same witness at the next hearing, he replied that in
the early part of 1976 his sister Maria borrowed from him the original document and a certified true
copy thereof and brought them to the Office of the Register of Deeds in Malolos "for the purpose of
having it registered;" and that when she returned she told him that the original copy of the document
was submitted to that office "and it (the property) was transferred in the name of Marcosa Bernabe
instead of Mariano Aguilar" (p. 8, tsn., December 10, 1981, Steno, Crisostomo; p. 9, tsn., Mar. 16,
1982, Steno, Vallarta).

Indeed, upon the appellees' own evidence the original of the deed of sale in question, a purported
xerox copy and certified true copy of which are marked as Exhibits A and B, has not been lost or
destroyed. It was submitted to the Office of the Register of Deeds of Malolos for registration. The
appellees, therefore, should have asked the office to produce it in court and if it could not be
produced for one reason or another should have called the Register of Deeds or his representative

Evidence II.
 to explain why. That they failed to do. The loss or destruction of the original of the document in
question has not, therefore, been established. Hence, secondary evidence of it is inadmissible . . . .

Neither did the testimony of notary public Ibasco, Jr. to the effect that he did not have a copy of the
deed of sale in question because his files were burned when his office at Ronquillo Street, Manila
was gutted by fire in 1971 and 1972 (p. 4, tsn., November 10, 1981, Steno, Crisostomo) establish
the loss or destruction of the original document in question. What was lost or destroyed in the
custody of Atty. Ibasco, Jr. was but one of the duplicate original copies on file with him. Nor did the
testimony of Hipolito Timoteo, representative of the Assessor's Office of Bulacan, to the effect that
he failed to see the deed of absolute sale annotated on the simple copy of tax declaration No. 15412
(p. 7, tsn., Aug. 12, 1982, Steno, Vallarta) and of David Montenegro, Jr. of the National Archives to
the effect that his office had no copy of the document in question because the notary public might
not have submitted a copy thereof; or that it was lost or destroyed during the transmittal; and that
most of the record before 1960 were destroyed by termites (pp. 8-12, tsn., Oct. 5, 1982, Steno,
Tecson), prove loss or destruction of the original and of all the duplicate original copies of the
document in question. 8

We find no cogent reason to rule otherwise.

WHEREFORE, the decision of the Court of Appeals dated November 27, 1987 is hereby AFFIRMED.

Evidence II.
33.) G.R. No. 159288             October 19, 2004

JOHNSON LEE, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and NEUGENE MARKETING, INC., respondents.

DECISION

CALLEJO, SR., J.:

NEUGENE Marketing, Inc. (NMI) was incorporated on January 27, 1978 with funds provided by the Uy Family. It
had an authorized capital stock of ₱3 million divided into 30,000 shares with a par value of ₱100 per share. The
original incorporators, with their corresponding number of shares and the amounts thereof, are as follows:

Johnson Lee 600 ₱ 60,000.00

Lok Chun Suen 1,200 120,000.00

Charles O. Sy 1,800 180,000.00

Eugenio Flores, Jr. 2,100 210,000.00

Arsenio Yang, Jr. 300 30,000.00

TOTAL 6,000 ₱600,000.00

===== ===========

There were two stock dividend declarations, one on June 7, 1980 in the amount of ₱60,000.00 and another
on May 2, 1981 for ₱40,000.00. On May 15, 1986 Eugenio Flores, Jr. assigned/divested himself of his
shares in favor of Sonny Moreno, 1,050 shares; Arsenio Yang, Jr., 700 shares and Charles O. Sy, 700
shares.1

On June 11, 1987, the NMI sold and delivered to the Victorias Milling Company, Inc. (VMCI), in Victorias, Negros
Occidental, 77,500 pieces of empty white bags for the price of ₱565,750.00. NMI issued Charge Invoice No.
08092 dated June 11, 1987 to VMCI covering said sale. On June 18, 1987, VMCI purchased 100,000 pieces of
empty white bags from NMI for ₱730,000.00 for which NMI issued Charge Invoice No. 0810.3 On June 25, 1987,
VMCI again purchased 28,000 pieces of empty white bags from NMI for the price of ₱204,400.00 and the latter
issued Charge Invoice No. 08114 dated June 25, 1987. In payment of said purchases from NMI, VMCI drew and
issued two Bank of the Philippine Islands (BPI) Checks: Check No. 068706 dated August 3, 1987 in the amount of
₱565,750.005 and Check No. 068993 dated August 19, 1987 in the amount of ₱934,400.00. 6 Both checks were
payable to the order of NMI.

On October 13, 1987, stockholders owning two-thirds (2/3) of the subscribed capital stock of NMI voted to call a
stockholders’ meeting. One of the items in the agenda was the dissolution of the corporation.

Pursuant thereto, a special stockholders’ meeting was held on October 24, 1987 in Bacolod City. The following
stockholders, who were also directors, were present and voted to dissolve the corporation:

Name of Stockholders Number of Shares

Arsenio Yang, Jr. 1,050 <="" td=""

style="font-
Charles Sy 2,800

Evidence II.
 Lok Chun Suen 1,400

Total 5,250 size: 14px;

text-
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Accordingly, notices were again sent to all stockholders of record, all of whom properly acknowledged the said
notices, that a meeting was to be held on November 30, 1987 to consider the dissolution of the corporation. Again
the stockholders who attended the October 24, 1987 meeting were present. Upon motion duly seconded, the
dissolution was approved. Per Resolution of the Board of Directors, the law firm of Reyes, Treyes & Fudolin Law
Office was appointed as trustee to collect all the receivables of the corporation.

At the time of the approval of the dissolution of the corporation on November 30, 1987, the shares of each
stockholder were as follows:

Name of Stockholders Total as of Nov. 30.

Johnson Lee, 600 (subscription); 60

(June 7, 1980 stock dividend); 40
(May 2, 1981 stock dividend) --------- 700 shares

Lok Chun Suen, 1,200 (subscription); 120

(June 7, 1980 stock dividend); 80
(May 2, 1981 stock dividend) ---------- 1,400 shares

Charles O. Sy, 1800 (subscription); 180

(June 7, 1980 stock dividend); 120
(May 2, 1981 stock dividend); 700
(acquisition from Eugenio Flores ---------- 2,800 shares

Arsenio Yang, Jr., 300 (subscription); 30

(June 7, 1980 stock dividend); 20
(May 2, 1981 stock dividend); 700
(acquisition from Eugenio Flores) -------- 1,050 shares

Sonny Moreno, 1,050 (acquisition

From Eugenio Flores) ----------------------- 1,050 shares

Total ---------------------------------- 7,000 shares

Pursuant to Section 11 of the Corporation Code, the Securities and Exchange Commission approved the dissolution
of the corporation on March 1, 1988 subject to compliance of the requirements, such as the sending of notices to
stockholders and publication thereof in a newspaper of general circulation, among others.

On March 22, 1988, Johnson Lee, Sonny Moreno, Leoncio Tan and Nicanor Martin filed a petition with the
Securities and Investigation Clearing Department (SICD) of the Commission praying, among other things, for the
annulment or nullification of the Certification of Filing of Resolution of Voluntary Dissolution of NMI for being contrary
to law and its by-laws.

Evidence II.
In the meantime, the trustee wrote the petitioner, Johnson Lee, on March 8, 1988 requesting him to turn over to it
the ₱1,500,150.00 he received in payment of the empty bags sold by NMI to VCMI. However, he failed to do so.7

A verified complaint for three (3) counts of estafa was filed against the petitioner and Sonny Moreno with
the City Prosecutor’s Office. Appended to the complaint were photocopies of Charge Invoice Nos. 0809,
0810, and 0811, issued by NMI to VMCI.

During the requisite preliminary investigation, the petitioner and Moreno submitted their counter-affidavits. The
counter-affidavit of the petitioner consisted of five pages. 8 After the investigation, two (2) Amended Informations
were filed against the petitioner and Moreno, with the Regional Trial Court (RTC) of Negros Occidental. Except as to
the particulars of the checks, the accusatory portions of the two Informations are identical, thus:

That sometime in the month of August 1987, in the City of Bacolod, Philippines, and within the jurisdiction of
this Honorable Court, the herein accused, Johnson Lee, being then the President and Sonny Moreno, the
General Manager of Neugene Marketing, Inc., with the duty and responsibility to collect, turn over and
deliver their collections to the herein offended party, Neugene Marketing, Inc., a corporation organized and
existing by and under the laws of the Philippines, represented herein by its Trustees, Roger Reyes, Ernesto
Treyes, and Eutiquio Fudolin, the said accused conspiring, confederating, and acting in concert far from
complying with the aforementioned obligation having collected the amount of ₱565,750.00 covered by BPI
Check No. 068766 (sic) dated August 3, 1987 as payment of Victorias Milling Company, a customer of the
herein offended party, with intent of gain, and with unfaithfulness or abuse of confidence failed and refused
to deliver the aforementioned amount to the herein offended party, up to the present, in spite of proper
demands, but instead, did, then and there willfully, unlawfully and feloniously convert[ed] and/or
misappropriated the same to their personal use and benefit to the damage and prejudice of the herein
offended party in the aforementioned amount of FIVE HUNDRED SIXTY-FIVE THOUSAND SEVEN
HUNDRED FIFTY (₱565,750.00) PESOS, Philippine Currency.

Act contrary to law.9

The cases were docketed as Criminal Cases Nos. 10010 and 10011.

During the trial, the original copies of Charge Invoice Nos. 0809, 0810 and 0811, and of BPI Check Nos.
068766 and 068993 were not in the custody of the prosecution.

To prove the loss, destruction or non-availability of the original copies of the charge invoices and checks,
as well as the authenticity and due execution thereof, the prosecution presented Ban Hua Flores, who
testified that she saw the two checks in the office of the petitioner at the Singson Building, Plaza Moraga,
Sta. Cruz, Manila. Sometime in 1987, she went to the office of the VMCI and inquired if it still had copies of the two
checks and the clerk thereat informed her that it would be difficult to locate the checks as they were stored in the
bodega, where many other checks were kept.10 Flores also testified that the signatures at the dorsal portion of the
checks were those of the petitioner, the President of NMI, with whom she had been working, and that he indorsed
and deposited the same on September 4, 1987 with the Solidbank, instead of the BPI Plaza Cervantes branch in
Manila, the official depository bank of NMI. According to Flores, she was able to secure microfilm copies of the
checks from Solidbank, and was sure that the copies of the checks and invoices were faithful reproductions of the
original copies thereof.11

Testifying for the prosecution in obedience to a subpoena issued by the court, Merlita Bayaban, Manager for
Corporate Affairs of VMCI, declared that the records section of VMCI, which had custody of all checks and other
corporate records, was near her office. She testified that the checks, including their other records, were lost during
the flood in 1985.12 She also testified on the Certification 13 issued by Carolina Diaz, the Comptroller of VMCI,
confirming the loss of the two checks. She, however, admitted that she did not see the original copies of the
checks14 and that she was not a signatory thereto. 15

Thereafter, the prosecution formally offered in evidence the counter-affidavit of the petitioner during the preliminary
investigation, as well as the charge invoices and checks, viz.

Evidence II.
 "G" NMI Charge Invoice No. 0809 dated
June 11, 1987
"H" NMI Charge Invoice No. 0810 dated
June 18, 1987
"I" NMI Charge Invoice No. 0811 dated
June25, 1987
"J" Demand letter dated March 8, 1988
signed by Atty. Roger Z. Reyes
"J-1" Signature appearing above the
typewritten name "Roger Z. Reyes"
duly identified by the prosecution
witness, Mrs. Ban Hua Flores as the
signature of Atty. Roger Z. Reyes
"K" Bank of the Philippine Village
Extension Check No. 068706 dated
August3, 1987 ₱565,750.00
"K-1" Signature found on the dorsal side
of Exhibit "K" which Mrs. Flores
identified as the signature of
accused Johnson Lee.
"K-2" Rubberstamp showing the name of
"Solidbank" side of Exhibit "K"
"L" BPI Legaspi Village Extension
Check No. 068993 dated Aug. 19,
1987 amount of ₱934,400.00
"L-1" Signature found on the dorsal side
of Exhibit "L" which Mrs. Flores
identified as the signature of
accused Lee
"L-2" Rubberstamp showing the name of
"Solidbank" appearing on dorsal
side of Exh. "L"
Evidence II.
To prove that Victorias Milling Co., Inc. (VMC)
ordered 77,500 pieces of empty bags from NMI
on June 11, 1987 and that these bags were
delivered to VMC.
To prove that VMC ordered 100,000 pieces of
empty bags from NMI on June 18, 1987 and
that these bags were delivered to VMC.
To prove that VMC ordered 28,000 pieces of
empty bags from NMI on June 25, 1987 and
that these bags were delivered to VMC.
To prove that in 1988, NMI made a demand
upon the accused for the delivery of the amount
of ₱1,500,150.00 representing VMC’s payment
for the delivery of the empty bags mentioned in
Exhibits "G," "H" and "I."
To prove the genuineness, authenticity and due
execution of Exhibit "J."
To prove that VMC made a check payable to
Islands (BPI) Legaspi NMI, in the amount of
₱565,750, as payment to NMI for the delivery of
the empty bags mentioned in Exhibits "G," "H"
and in the amount of "I."
To prove that the accused Lee received and
was in possession of Exhibit "K" and that he
indorsed and deposited the same.
To prove that Exhibit "K" was deposited by
accused Lee in the Solidbank which is not
appearing on the dorsal the official depository
bank of NMI, the official NMI depository bank
being the BPI Plaza Cervantes Branch.
To prove that VMC made a check payable to
NMI in the amount of ₱934,400, as payment to
NMI for the delivery of the empty bags in the
mentioned in Exhibits "G, "H" and "I."
To prove that the accused Lee received and
was in possession of Exhibit "L" and that he
indorsed and deposited the same.
To prove that Exhibit "L" was deposited by
accused Lee in the Solidbank which is not the
official depository bank of NMI, the official NMI
depository bank being the BPI Plaza Cervantes
Branch.16
The prosecution also offered in evidence the counter-affidavit of the petitioner during the preliminary investigation,
as follows:

"O" Counter-Affidavit dated September
9, 1988 signed and submitted by
Johnson Lee
To prove that the proceeds of Exhibit "K" and
"L" in the total amount of ₱1,500.150 are in the
possession and control of the accused and that
both refused to in B.C.-I.S. No. 88-347, deliver
the same to NMI despite consisting of 5 pages
demand

"O-1" Signature found on page 5 of Exhibit To prove the genuineness, due above the
"O" execution and authenticity of typewritten which both of the accused also
Exhibit "O", name "Johnson Lee" admitted.

"O-2" Paragraph 6 of Exhibit "O" found on Same purpose as in Exhibit "O".

page 2 thereof.17

The accused objected to the admission of the photocopies of the checks and charge invoices on the
ground that the best evidence were the original copies thereof. On April 12, 2002, the trial court issued an
Order admitting the counter-affidavit of the petitioner, as well as the photocopies of the checks and charge invoices,
on the ground that the prosecution had adduced preponderant evidence that the original copies of the said charges
and checks were lost, destroyed or non-available. 18 The accused filed a motion for reconsideration of the order,
claiming that the prosecution failed to prove the authenticity and due execution of the offered documents, a
prerequisite to the admission thereof as secondary evidence. They also filed a Motion for Leave to File a Demurrer
to Evidence. The trial court denied both motions.

In a petition for certiorari under Rule 65 of the Rules of Court filed with the Court of Appeals, the petitioner alleged
that -

Respondent judge committed grave abuse of discretion equivalent to lack or excess of jurisdiction,
in admitting in evidence the People’s documentary evidence, consisting of mere unauthenticated
photocopies, in flagrant violation of the Best Evidence Rule (Sec. 3, 4, 5 and 6, Rule 130), despite the
repeated vehement objections of the petitioner, thereby wantonly refusing to exclude such clearly
inadmissible evidence, which actuation as embodied in his two (2) assailed Orders, is capricious, whimsical
and patently erroneous, as to amount to an evasion of positive duty or to a virtual refusal to perform the duty
enjoined or to act at all in contemplation of law, and the remedy of ordinary appeal would not afford
petitioner adequate and expeditious relief, for while available eventually, such remedy is cumbersome for it
requires petitioner to undergo a useless and time-consuming trial, and thus becomes an oppressive exercise
of judicial authority; hence, the imperative necessity for the issuance of a temporary restraining order or
preliminary injunction requiring respondent judge to refrain from further proceeding with Crim. Cases Nos.
10010 and 10011 until the Petition shall have been disposed of, otherwise, failure of justice is sure to
ensue.19

On March 14, 2003, the Court of Appeals rendered judgment dismissing the petition for lack of merit. 20

The Court of Appeals ruled that the charge invoices and the checks were not the best evidence to prove receipt by
the accused of the amounts allegedly misappropriated; hence, the best evidence rule does not apply. It also held
that even if the contents of the checks were the subject of inquiry, based on the proofs adduced by the prosecution,
such checks are admissible in evidence. The Court of Appeals declared that, in any event, the prosecution proved
the loss or destruction or non-availability of the checks and charge invoices. The petitioner’s motion for
reconsideration of the decision suffered the same fate.

The petitioner then sought relief from this Court, in a petition for review on certiorari, and raises the following issues:

1. CAN (sic) PRIVATE DOCUMENT OFFERED AS AUTHENTIC BE RECEIVED IN EVIDENCE

WITHOUT PROOF OF ITS DUE EXECUTION AND AUTHENTICITY?
Evidence II.
 2. CAN SECONDARY EVIDENCE BE ADMITTED WITHOUT PROOF OF ITS LOSS OR
UNAVAILABILITY AND EXECUTION OF THE ORIGINAL?

3. DID THE COURT OF APPEALS ERR WHEN IT RULED THAT THE FAILURE TO PRODUCE
THE ORIGINAL OF A DOCUMENTARY EVIDENCE, CONSISTING OF PRIVATE INSTRUMENTS
DOES NOT VIOLATE THE BEST EVIDENCE RULE, INASMUCH AS RECEIPT BY THE
PETITIONER OF THE AMOUNT ALLEGEDLY MISAPPROPRIATED MAY BE PROVED BY
EVIDENCE OTHER THAN THE ORIGINAL OF THE SAID PRIVATE DOCUMENTS?

4. IS THE FINDING OF THE COURT OF APPEALS THAT THE FACT OF LOSS OR

DESTRUCTION OF THE CHECKS AND THE CHARGE INVOICES HAS BEEN ESTABLISHED BY
OTHER EVIDENCE, DEVOID OF SUPPORT BY THE EVIDENCE ON RECORD AND IS,
THEREFORE, A BARE CONCLUSION OR A FINDING BASED ON SURMISE AND
CONJECTURES?

5. IS ANOTHER FINDING, IN THE FORM OF ASSUMPTION, OF THE COURT OF APPEALS

THAT SINCE THE WITNESSES FOR THE PROSECUTION ARE OFFICERS WITH AUTHORITY
TO KEEP THE QUESTIONED DOCUMENTS, THEY NECESSARILY TOOK AND CONDUCTED A
THOROUGH SEARCH FOR THE MISSING DOCUMENTS, A MERE CONJECTURE OR SURMISE
OR A FINDING GROUNDED ENTIRELY ON SPECULATION?

6. DID THE COURT OF APPEALS VIOLATE THE DICTUM OF THE COLD NEUTRALITY OF AN
IMPARTIAL JUDGE WHEN IT DENIED PETITIONER’S MOTION FOR INHIBITION GROUNDED
ON ITS DISPLAY OF UNDUE INTERESTS AND WHEN A MEMBER THEREOF HAS SEEN IT FIT
AND APPROPRIATE TO RECUSE HERSELF?21

The petitioner avers that the prosecution failed to prove the loss, destruction or non-availability of the original copies
of the checks and charge invoices; that diligent efforts were undertaken to locate the original copies of the checks
and invoices; and that said efforts were futile. He asserts that the witness competent to prove the loss or destruction
of the original of the checks would be the records custodian of VMCI. Bayaban was not a competent witness
thereon, considering that she merely testified that the clerk of the VMCI failed to locate the original copies of the
checks because the latter was lazy to search for the same. The petitioner posits that the prosecution failed to prove
the due execution and authenticity of the charge invoices and the two checks through the testimonies of Flores and
Bayaban. He contends that Bayaban even admitted that she was not privy to and had no knowledge of the
execution of the said checks and of the signatories of the checks. The petitioner further avers that, although the
appellate court held that the photocopies of the checks were admissible in evidence based on other proofs adduced
by the prosecution, it failed to specify the other proofs adverted to by it.

In its Comment on the petition, the Office of the Solicitor General asserts that through the testimony of Bayaban, the
due execution and authenticity of the checks were proved by the prosecution as well as the admissions of the
petitioner in his counter-affidavit during the preliminary investigation. It further averred that through the testimonies
of Bayaban and Flores, it proved, with reasonable certainty, the loss or destruction of the original copies of the
checks and the charge invoices.

The issues for resolution are as follows: (a) whether or not the petition at bar is the proper remedy of the petitioner;
and (b) whether or not the trial court committed a grave abuse of its discretion amounting to excess or lack
of jurisdiction in admitting in evidence the photocopies of the checks and charge invoices in lieu of the
original copies thereof.

The Ruling of the Court

In People v. Court of Appeals,22 we held that for a petition for certiorari or prohibition to be granted, it must set out
and demonstrate, plainly and distinctly, all the facts essential to establish a right to a writ. 23 The petitioner must
allege in his petition and establish facts to show that any other existing remedy is not speedy or adequate 24 and that
(a) the writ is directed against a tribunal, board or officer exercising judicial or quasi-judicial functions; (b) such
tribunal, board or officer has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to

Evidence II.
excess or lack of jurisdiction; and, (c) there is no appeal or any plain, speedy and adequate remedy in the ordinary
course of law.25

The trial court acts without jurisdiction if it does not have the legal power to determine the case; there is excess of
jurisdiction where the respondent, being clothed with the power to determine the case, oversteps its authority as
determined by law. There is grave abuse of discretion where the public respondent acts in a capricious, whimsical,
arbitrary or despotic manner in the exercise of its judgment as to be said to be equivalent to lack of
jurisdiction.26 Mere abuse of discretion is not enough. A remedy is plain, speedy and adequate if it will promptly
relieve the petitioner from the injurious effects of that judgment and the acts of the tribunal or inferior court. 27 A
petition for certiorari cannot co-exist with an appeal or any other adequate remedy. The existence and the
availability of the right to appeal are antithetical to the availment of the special civil action for certiorari. These two
remedies are mutually exclusive.28

In a petition for certiorari, the jurisdiction of the court is narrow in scope. It is limited to resolving only errors of
jurisdiction. It is not to stray at will and resolve questions or issues beyond its competence such as errors of
judgment. Errors of judgment of the trial court are to be resolved by the appellate court in the appeal by and of error
or via a petition for review on certiorari under Rule 45 of the Rules of Court, as amended. Certiorari will issue only to
correct errors of jurisdiction. It is not a remedy to correct errors of judgment. 29 An error of judgment is one in which
the court may commit in the exercise of its jurisdiction, and which error is reversible only by an appeal. Error of
jurisdiction is one where the act complained of was issued by the court without or in excess of jurisdiction and which
error is correctible only by the extraordinary writ of certiorari. 30 Certiorari will not be issued to cure errors made by
the trial court in its appreciation of the evidence of the parties, its conclusions anchored on the said findings and its
conclusions of law thereon.31 As long as the court acts within its jurisdiction, any alleged errors committed in the
exercise of its discretion will amount to nothing more than mere errors of judgment, correctible by an appeal if the
aggrieved party raised factual and legal issues; or a petition for review under Rule 45 of the Rules of Court if only
questions of law are involved.32

In this case, there is no dispute that the RTC had jurisdiction over the cases filed by the public respondent against
the petitioner for estafa. The Order admitting in evidence the photocopies of the charge invoices and checks was
issued by the RTC in the exercise of its jurisdiction. Even if erroneous, the same is a mere error of judgment and not
of jurisdiction. Additionally, the admission of secondary evidence in lieu of the original copies predicated on proof of
the offeror of the conditions sine qua non to the admission of the said evidence is a factual issue addressed to the
sound discretion of the trial court.33 Unless grave abuse of discretion amounting to excess or lack of jurisdiction is
shown to have been committed by the trial court, the resolution of the trial court admitting secondary evidence must
be sustained. The remedy of the petitioner, after the admission of the photocopies of the charge invoices and the
checks, was to adduce his evidence, and if after trial, he is convicted, to appeal the decision to the appropriate
appellate court. Moreover, under Rule 45 of the Rules of Court, as amended, only questions of law may be properly
raised.

In the final analysis, the threshold issue in this case is whether or not the prosecution adduced evidence,
testimonial and documentary, to prove the predication to the admission of the photocopies of the charge
invoices34 and of the checks.35 The petitioner posits that the prosecution failed to discharge its burden, in
contrast to the claim of the prosecution that it succeeded in doing so. In resolving the petition at bar, the court
will have to delve into and calibrate the testimonial and documentary evidence adduced by the parties in the trial
court, which the court is proscribed to do under Rule 45 of the Rules of Court. This was the ruling of the Court in
Johnson Lee v. People:36

In other words, certiorari will issue only to correct errors of jurisdiction and not to correct errors of procedure
or mistakes in the court’s findings and conclusions. An interlocutory order may be assailed by certiorari or
prohibition only when it is shown that the court acted without or in excess of jurisdiction or with grave abuse
of discretion. However, this Court generally frowns upon this remedial measure as regards interlocutory
orders. To tolerate the practice of allowing interlocutory orders to be the subject of review by certiorari will
not only delay the administration of justice but will also unduly burden the courts.

We find that the allegations of the petitioners are not sufficient grounds to qualify as abuse of discretion
warranting the issuance of a writ of certiorari. The petitioners present factual contentions to absolve them
from the criminal charge of estafa. The criminal cases concern corporate funds petitioners allegedly received
Evidence II.
 as payment for plastic bought by Victorias Milling Corporation from NMI. They refused to turn over the
money to the trustee after NMI’s dissolution on the ground that they were keeping the money for the
protection of the corporation itself. Thus, the elements of misappropriation and damage are absent. They
argue that there is no proof that, as officers of the corporation, they converted the said amount for their own
personal benefit. They likewise claim that they already turned the money over to the majority stockholder of
the defunct corporation.

Clearly, the said allegations are defenses that must be presented as evidence in the hearing of the criminal
cases. They are inappropriate for consideration in a petition for certiorari before the appellate court
inasmuch as they do not affect the jurisdiction of the trial court hearing the said criminal cases but instead
are defenses that might absolve them from criminal liability. A petition for certiorari must be based on
jurisdictional grounds because, as long as the respondent court acted with jurisdiction, any error committed
by it in the exercise thereof will amount to nothing more than an error of judgment which can be reviewed or
corrected on appeal.

Moreover, the petition for certiorari before the Court of Appeals was premature for the reason that there
were other plain and adequate remedies at law available to the petitioners. Under Section 3(a) of Rule 117
of the Revised Rules of Criminal Procedure, the accused can move to quash the information on the ground
that the facts do not constitute an offense. There is no showing that the petitioners, as the accused in the
criminal cases, ever filed motions to quash the subject informations or that the same were denied. It cannot
then be said that the lower court acted without or in excess of jurisdiction or with grave abuse of discretion to
justify recourse to the extraordinary remedy of certiorari or prohibition.

But it must be stressed that, even if petitioners did file motions to quash, the denial thereof would not have
automatically given rise to a cause of action under Rule 65 of the Rules of Court. The general rule is that,
where a motion to quash is denied, the remedy is not certiorari but to go to trial without prejudice to
reiterating the special defenses involved in said motion, and if, after trial on the merits an adverse decision is
rendered, to appeal therefrom in the manner authorized by law. And, even in the exceptional case where
such denial may be the subject of a special civil action for certiorari, a motion for reconsideration must first
be filed to give the trial court an opportunity to correct its error. Finally, even if a motion for reconsideration
was filed and denied, the remedy under Rule 65 would still be unavailable absent any showing of the
grounds provided for in Section 1 thereof. The petition before the Court of Appeals, subject of this appeal,
did not allege any of such grounds.

Furthermore, a petition for review under Rule 45 of the 1997 Revised Rules of Civil Procedure before this
Court only allows questions of law. Inasmuch as petitioners’ defenses alleging circumstances that negate
misappropriation definitely require appreciation of facts, i.e., testimonial and documentary evidence, this
Court cannot assess the merit of the said claims.37

Moreover, the factual findings of the Court of Appeals are conclusive on the Court unless the petitioner is able to
establish that the findings of facts of the appellate court are not supported by or are contrary to the evidence; or if
the appellate court ignored, misconstrued or misinterpreted vital facts and circumstances, which, if considered,
could change or even reverse the outcome of the case. In this, the petitioner failed.

Rule 130, Section 3 of the Revised Rules of Court reads:

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

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

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

Evidence II.
 (c) When the original consists of numerous accounts or other documents which cannot be examined
in court without great loss of time and the fact sought to be established from them is only the general
result of the whole;

(d) When the original is a public record in the custody of a public officer or is recorded in a public
office.

Before the onset of liberal rules of discovery, and modern technique of electronic copying, the best evidence
rule was designed to guard against incomplete or fraudulent proof and the introduction of altered copies and
the withholding of the originals. But the modern justification for the rule has expanded from the prevention of
fraud to a recognition that writings occupy a central position in the law. The importance of the precise terms
of writings in the world of legal relations, the fallibility of the human memory as reliable evidence of the
terms, and the hazards of inaccurate or incomplete duplicate are the concerns addressed by the best
evidence rule.38

The rule does not apply to proof of facts collateral to the issues such as the nature, appearance or
condition of physical objects or to evidence relating to a matter which does not come from the foundation
of the cause of action or defense; or when a party uses a document to prove the existence of an
independent fact, as to which the writing is merely collated or incidental. 39

The offeror of secondary evidence is burdened to prove the predicates thereof: (a) the loss or destruction of
the original without bad faith on the part of the proponent/offeror which can be shown by circumstantial
evidence of routine practices of destruction of documents; 40 (b) the proponent must prove by a fair
preponderance of evidence as to raise a reasonable inference of the loss or destruction of the original
copy; and (c) it must be shown that a diligent and bona fide but unsuccessful search has been made for the
document in the proper place or places.41 It has been held that where the missing document is the foundation of
the action, more strictness in proof is required than where the document is only collaterally involved. 42

If the document is one in which other persons are also interested, and which has been placed in the hands
of a custodian for safekeeping, the custodian must be required to make a search and the fruitlessness of
such search must be shown, before secondary evidence can be admitted. 43 The certificate of the custody of
the document is incompetent to prove the loss or destruction thereof. Such fact must be proved by some
person who has knowledge of such loss.44

The proponent is also burdened to prove the due execution or existence of the original as provided in Rule 130,
Section 5 of the Revised Rules of Court:

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

Rule 132, Section 20 of the Revised Rules of Court provides the procedure on how the authenticity and due
execution of a private document which is offered as authentic may be proved:

Proof of private document. – Before any private document offered as authentic is received in evidence, its
due execution and authenticity must be proved either:

(a) By anyone who saw the document executed or written; or

(b) By evidence of the genuineness of the signature or handwriting of the maker.

Any other private document need only be identified as that which it is claimed to be.

The testimony of an eyewitness as to the execution of a private document must be positive. He must state
that the document was actually executed by the person whose name is subscribed thereto. 45 The admission
Evidence II.
 of that party against whom the document is offered, of the authenticity and due execution thereof, is
admissible in evidence to prove the existence, authenticity and due execution of such document.

In this case, there is no dispute that the original copies of the checks were returned to VMCI after the same were
negotiated and honored by the drawee bank. The originals of the charge invoices were kept by VMCI. There is also
no dispute that the prosecution offered the photocopies of the invoices in evidence to prove the contents thereof,
namely that: (a) VMCI purchased 203,500 empty bags from NMI for the total price of ₱1,500,150.00; (b) VMCI
received the said goods in good order and condition; and (c) NMI charged VMCI for the purchase price of said
goods. The prosecution offered the checks to prove the contents thereof as well as the following: (a) VMCI drew and
delivered the checks to the NMI; (b) the said checks were endorsed by the petitioner; and (c) the said checks were
deposited by the petitioner with the Solidbank which was not the official depository of NMI. Thus, the prosecution
was burdened to prove the loss, destruction or its inability to produce in court without bad faith on its part
of the original copies of the said invoices and checks without bad faith on its part.

We agree with the petitioner that the Certification signed by Carolina Diaz was inadmissible in evidence against him
because of the failure of the prosecution to present her as witness and to testify on said certification.

However, the records show that, in obedience to the subpoena duces tecum and ad testificandum issued by
the trial court directing the VMCI to produce the originals of the checks and the charge invoices, Bayaban,
the Manager for Corporate Affairs of VMCI, testified that all its records, including the charge invoices and
checks, were destroyed seven years ago in a flash flood which occurred on November 28, 1995, and that
such loss/destruction was known to all the employees of VMCI, including herself:

FISCAL ESQUILLA:

Q Please inform this Honorable Court how were you able to appear this afternoon in connection with this
case?

A The Legal Department, through the instruction of our Chief Operating Officer, inquired from our
Accounting through our comptroller, Carolina S. Diaz to produce the original copies of the two (2) checks
which was mentioned in the subpoena issued by Prosecutor Esquilla. And then, through my direct Boss, the
Chief Accountant, Mrs. Melanie Roa, instructed me to look into the two (2) checks. And since the record is
under my Department, I immediately asked my subordinate to look for it. And, in fact, she was also under my
supervision when we looked for the document. And I have already knowledge during the November 28,
1995 due to flash flood, we lost our records. And in fact, we have declaration to the Bureau of Internal
Revenue (BIR). And we also exhausted some means to look for the documents, but we really cannot
produce the original copies of the checks, even the Xerox, no more copies of the checks as requested.

Q Madam Witness, when you said that you instructed your subordinate to look for the record, specifically,
the records being asked in the subpoena, the original copies of the checks, these two (2) checks, will you
please inform this Honorable Court where these records in 1995 including these checks, of course, have
been kept by your office?

A It is kept at the Records Section Office just near my table. It is just over there. It is just over there. The
distance is very near. We have the vault power cards and all old records were kept are downstairs and the
new ones are kept upstairs. So, we don’t anticipate the flood and because that was the first time that we
were hit by that flash flood.

Q So, you want to impress this Honorable Court that those records which were kept downstairs your office
were carried or destroyed by this flash flood which occurred in 1995 is that correct or is that what you mean?
Evidence II.
 A Yes, Your Honor.

Q And can you say that if these two (2) checks, subject of this case now, were there downstairs and was
destroyed by the 1995 flash flood, can you say that before this Honorable Court?

A Yes, Your Honor.

Q Aside from these checks downstairs which were destroyed by this flash flood, what were the other records
that were kept there that were lost also?

A All our Bank Vouchers, some of our General Ledgers. Actually, I cannot memorize it, but in our declaration
to the Bureau of Internal Revenue (BIR) we have listings of those documents which were damaged by flash
flood.

Q Alright, Madam Witness. So, when this subpoena/subpoena (sic) duces tecum was received by Victorias
Milling Company, addressed to the Chief Operating Officer, do I get from you that this was referred to the
Legal Affairs of VICMICO?

A Yes, Your Honor.

COURT:

Slowly, the stenographer may not be able to catch up with you.

FISCAL ESQUILLA:

I see. Sorry, Your Honor. And from the Legal Affairs, where did it proceed, this subpoena or this was
referred to by the Legal Affairs to whom?

WITNESS:

A To Mrs. Carolina Diaz, the Comptroller.

FISCAL ESQUILLA:

Q You mentioned that she is your immediate Boss?

A I have also, next to her, Mrs. Melanie Roa, and I am next to her.

Q And you are holding office there at VICMICO together with the Comptroller, Carolina Diaz?

A We are in the same building.

Q And does she has a cubicle of her own?

A Yes, Your Honor.

Q And your table up to her cubicle, how far is your table from her cubicle?

Evidence II.
 A They are very near. I can see from my place her office and I can see anytime she went in and out of the
room. Maybe from here up to that next room.

COURT:

About 25 to 30 meters, more or less.

FISCAL ESQUILLA:

Q And, Madam Witness, may I know from you that who requested you to testify because this Certification
bears the signature of Mrs. Diaz?

A Ah, Mrs. Diaz, in fact, ah – there is a Memo from the Legal Affairs that we will submit the Certification to
the Honorable Court and the Memo was addressed to Mrs. Diaz. And there was a note from Mrs. Diaz to my
direct Boss, the Chief Accountant, and then I was tasked by my immediate Boss to attend to this.

Q How were you able to secure a Certification?

A A Certification was issued also upon our recommendation to the Chief Accountant that we cannot produce
anymore the original copies of the said document.

Q Who gave you that Certification so that you can bring that today in Court?

A Marie Melanie G. Roa.

Q Do you have with you now the Certification?

A Yes, Your Honor.

Q And you are showing the original copy of the Certification?

A Yes, Your Honor.

Q I show to you the Certification dated December 6, 2001 issued by Carolina Diaz, Comptroller. Do you
know whose signature is this?

A That is the signature of Mrs. Carolina S. Diaz.

Q How do you know that this is her signature?

A I’m very much familiar with her signature because in our day to day undertakings in the office, I can see
this in the checks she signed, and in the Office Memorandum. And, in fact, I also prepare some of the
communications for her signature.

Q For the record, Madam Witness, will you please read the first paragraph of that Certification issued by
Carolina Diaz?

A "Victorias Milling Co., Inc. Certification. This is to certify that Victorias Milling Co., Inc. no longer have the
original copies of the BPI, Legaspi Village, Extension Office, Legaspi St., Makati, Metro Manila, Check No.
068766 dated August 3, 1987 and Check No. 068993 dated August 19, 1987 as the same were destroyed
by flash flood that hit the province of Negros Occidental particularly the City of Victorias on November 28,
1995."

Evidence II.
 FISCAL ESQUILLA:

Your Honor, may I request that this Certification be marked as our Exhibit "X" temporarily.

COURT:

Mark it.

FISCAL ESQUILLA:

And then the signature as identified by this witness, of her immediate Boss, be encircled and marked as
Exhibit "X-1."

COURT:

Mark it.

COURT INTERPRETER:

Your last Exhibit is Exhibit "Y."

FISCAL ESQUILLA:

I will change my Exhibit from Exhibit "X" and "X-1" to "Z" and "Z-1." No further, Your Honor.

COURT:

Do you want to cross?

ATTY. MAGDAMIT:

Yes, Your Honor.

COURT:

Alright, cross for the accused Moreno. We will give the Manila lawyer the first shot.

CROSS-EXAMINATION OF THE

WITNESS MERLITA T. BAYABAN

CONDUCTED BY ATTY. SIMEON M.

MAGDAMIT.

ATTY. MAGDAMIT

Q Madam Witness, when you received the subpoena, it contained a photocopy of the checks that were
being requested, is that correct?

(At this juncture, there is no answer from the witness)

Evidence II.
 ATTY. MAGDAMIT: (Follow-up question)

Q Did it already contain a copy of the photocopy?

A Ah. Attached to the subpoena.

Q Have you seen this photocopy when you received the subpoena? You did not see?

A Ah, actually, the subpoena was directed to the Legal.

Q You did not see. You did not see the photocopy?

May I know the point of Compañero, Your Honor.

WITNESS: (Answers before Atty. Magdamit)

A I remember it was presented to me by Mrs. Diaz.

ATTY. MAGDAMIT

Q Mrs. Diaz. So, let me just clear this up. The subpoena did not immediately go to the Legal, it was
presented to you by Mrs. Diaz?

A No, it was presented by the Legal to our Comptroller. Then . . .

...

COURT:

Q And then to?

A And then to me.

Q There is an initial, "MGR." Do you know who is that?

A That is Mrs. Melanie G. Roa, our Chief Accountant.

Q And from then, when it reached you, you were the ones who sorted through the files, were you the one?

A Ah, my subordinate.

Q Ah, you were not the one?

A No, Your Honor.

Q Now, but you were certain – I withdraw that question. When you received the subpoena with the attached
document, were you already aware that the records, the original, were destroyed or you were not yet aware?

A Very much aware that the records were destroyed by the flash flood because it was not only in that case
that we were tasked to look for the documents. There were also Examiners from the Bureau of Internal
Revenue who asked for the documents prior to 1995 and that’s our reason, we cannot produce the
documents.

Evidence II.
 Q Now, wait. Were you the only one who was aware that this file was destroyed or was it a matter that was
known in your company?

A It was known to everybody.

Q It was known?

A Yeah.

Q So, can you conclude that just upon receiving the subpoena and looking at the photocopy of the checks,
you would immediately know that this was among the files that was destroyed by the flood?

A Yes, because of the date, 1995.

Q So, despite that knowledge, it still went through the process and you still looked for it, is that correct?

A Yes, Your Honor.

Q So, despite of your knowledge that it was destroyed, you still looked for it?

A Yeah, we still looked for it because there might be some files to prove that it was really our check
issuance. So even our files, even our Bank Recon, we cannot produce it. 46

Contrary to the claim of the petitioner, the prosecution adduced preponderant evidence to prove the existence, the
due execution and the authenticity of the said checks and charge invoices consisting of the admission of no less
than the petitioner in his counter-affidavit. The petitioner admitted therein that he received the total amount of
₱1,500,150.00 from VMCI in full payment of the delivery and sale of the empty bags by NMI to VMCI and that the
said amount was in the custody of the said corporation, thus:

6. That the collection by the Corporation of the amount of ₱1,500,150.00 is a valid act of the corporation;
that it is the full and complete and just payment for the three deliveries of plastic materials by the Neugene
Marketing, Inc to Victorias Milling Company on June 11, 1987, June 18, 1987 and June 25, 1987 when I was
and I am still the President and Mr. Sonny Moreno, General Manager of the Neugene Marketing, Inc. and
that the said Victorias Milling Company paid in full and payments were made to the Corporation and it is only
a legitimate act of the Neugene Marketing, Inc. in the regular course of business to receive payment for the
obligations of its customers to the Corporation;

7. That with respect to the demand letter addressed to me to turn over aforesaid ₱1,500,150.00, the said
amount is money of the Neugene Marketing, Inc. and the corporation is the legitimate possessor thereof and
that Reyes, Treyes, and Fudolin Law Firm has no right or authority to make the demand letter; and that it is
the corporation that holds the money and that personally, neither I nor Sonny Moreno can just take the
money to give to Reyes, Treyes and Fudolin Law Firm which cannot be trusted and which is an
unauthorized entity to receive, hold and possess said funds or to file this case;

8. That the amount of ₱1,500,150.00 the corporate funds of the Neugene Marketing, Inc. unless authorized
by the members of the Board of Directors, neither I nor Sonny Moreno can dispose of the said sum of
money and it is the corporation that is holding the said amount and holding it to answer for corporation
expenses on its business operations and to answer for obligations to its creditors including the claims of
Sonny Moreno and myself for unpaid compensation, salaries, fringe benefits, allowances and shares in the
profits of the Corporation; and that therefore, it is beyond our authority or power to refuse the turn over or to
turn over the aforesaid amount; and that if there is evidence of the malicious and criminal intent to
appropriate the same for personal benefit that is more applicable to Reyes, Treyes and Fudolin who
apparently without any legal authority and illegally posing as a trustee when as a matter of fact, they have
never been appointed or designated a[s] trustee by the Neugene Marketing, Inc.; and therefore,
complainants should be the one held criminally responsible for the illegal "dissolution" of the Neugene
Marketing, Inc., and for which they will be charged with the corresponding action for falsification and perjury
Evidence II.
 for having been able to secure a Certification of Dissolution from the Securities and Exchange Commission
by means of false pretenses and representations; 47

It bears stressing that the counter-affidavit of the petitioner was adduced in evidence by the prosecution precisely to
prove the existence, authenticity and due execution of the original of the said charge invoices and checks and the
trial court admitted the same for the said purpose.

By his counter-affidavit, the petitioner, in effect, admitted the allegations of the affidavit-complaint of the trustee of
NMI:

a. Sometime on June 11, 1987, June 18, 1987 and June 25, 1987, respectively, NEUGENE
MARKETING, INC. made three (3) deliveries of plastic materials to Victorias Milling Company,
Victorias, Negros Occidental totalling ₱1,500,150.00 covered by Charge invoices …

b. Aforesaid charge invoices were subsequently paid by Victorias Milling Company in full and
payments delivered to Johnson Lee and/or Sonny Moreno, as President and General Manager of
Neugene Marketing, Inc.

c. As Trustee of Neugene Marketing, Inc., the Reyes, Treyes & Fudolin Law Firm sent a demand letter
addressed to Johnson Lee to turn over aforesaid ₱1,500,150.00. …

d. As of the date of this Affidavit-Complaint, Johnson Lee and/or Sonny Moreno have failed to
deliver aforesaid sum to the herein trustee contrary to law.

4. Johnson Lee and/or Sonny Moreno have no authority whatsoever to withhold aforesaid sum of
₱1,500,150.00 and their refusal to turn over aforesaid amount is evidence of a malicious and criminal
intent to appropriate the same for their own personal benefit. 48

With the admissions of the petitioner in his counter-affidavit, the prosecution even no longer needed to adduce
evidence aliunde to prove the existence, due execution and the authenticity of the charge invoices and the checks.

All told then, the prosecution mustered the requisite quantum of evidence to prove the predicates to the admission
of the photocopies of the charge invoices and checks.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed decision of the Court of Appeals
is AFFIRMED. No costs.

Evidence II.
 34.) [G.R. No. 175369, February 27, 2013]

TEGIMENTA CHEMICAL PHILS. AND VIVIAN ROSE D. GARCIA, Petitioners, v. MARY

ANNE OCO, Respondents.

DECISION

SERENO, J.:

Before this Court is a Rule 45 Petition, seeking a review of the 24 April 2006 Court of Appeals (CA)
Resolution in CA-G.R. SP No. 87706.1 The CA reversed its 3 January 2006 Decision and, in effect,
affirmed the 30 July2 and 24 September 20043 Resolutions of the National Labor Relations
Commission (NLRC) in NLRC CA No. 036684-03 and the 30 May 2003 Decision4 in NLRC NCR Case
No. 06-03760-2002 of the labor arbiter (LA). The courts a quo  similarly found that petitioner had
illegally dismissed respondent Mary Anne Oco (Oco).

The antecedent facts are as follows:5

Starting 5 September 2001, respondent worked as a clerk, and later on as a material controller, for
petitioner Tegimenta Chemical Philippines, Incorporated (Tegimenta), a company owned by petitioner
Vivian Rose D. Garcia (Garcia).

By reason of her pregnancy, Oco incurred numerous instances of absence and tardiness from March
to April 2002. Garcia subsequently advised her to take a vacation, which the latter did from 1 to 15
May 2002.

On her return, Oco immediately worked for the next four working days of May. However, on 21 May
2002, Garcia allegedly told her to no longer report to the office effective that day. Hence, respondent
no longer went to work. She nevertheless called petitioner at the end of the month, but was informed
that she had no more job to do.

Immediately thereafter, on 3 June 2002, respondent filed a Complaint for illegal dismissal and prayed
for reinstatement and back wages before the LA. Later on, she amended her Complaint by asking for
separation pay instead of reinstatement.

In her Position Paper,6 Oco maintained that petitioner verbally dismissed her without any valid cause
and without due process. To bolster her story, respondent adduced that Tegimenta hired new
employees to replace her. In their defense, petitioners countered that she had abandoned her job by
being continuously absent without official leave (AWOL). They further narrated that they could not
possibly terminate her services, because she still had to settle her accountabilities.7

The LA disbelieved the narration of petitioners and thus ruled in favor of

respondent. The arbiter deduced that the employer only wanted to “make it appear that the
complainant was not dismissed from employment, as she could not prove it with any Memorandum
issued to that effect and yet, they also maintain that complainant was AWOL.”8 The LA further
observed that petitioners did not deny the main claim of respondent that she had simply been told
not to report for work anymore.

Aggrieved, petitioners appealed to the NLRC. They assailed the ruling of the LA for having been
issued based not on solid proof, but on mere allegations of the employee.9 They advanced further
that Oco had abandoned her employment, given that she claimed separation pay instead of
reinstatement.

Evidence II.
The NLRC reviewed the records of the case and found that the documentary evidence coincided with
the allegations of Oco.10 Consequently, it affirmed her claim that Garcia, without advancing any
reason and without giving any written notice, had categorically told her not to work for Tegimenta
anymore. Accordingly, the NLRC sustained the illegality of respondent’s dismissal.11

On Motion for Reconsideration, the NLRC still affirmed the LA’s Decision in toto.12 Thus, petitioners
pursued their action before the CA via a Rule 65 Petition.

Alleging grave abuse of discretion amounting to lack or excess of jurisdiction, petitioners again
assailed the factual determinations of the LA and the NLRC. In doing so, they attacked Oco’s
allegations for being inconsistent with the evidence on record.

Petitioners reiterated the following before the CA: (1) the payroll sheets from May to August 2002
belied the claim of Oco that Tegimenta had hired new employees to replace her; (2) the time cards
showing respondent’s attendance in the office on 21 May 2002 negated the story that Garcia had
verbally instructed her not to report for work starting from the said date; and (3) the Complaint that
Oco filed before the LA, stating that she was fired on 3 June 2002, contradicted her allegation in her
Position Paper that she was ultimately terminated on 30 May 2002 – a discrepancy of three
days.13 The employer also highlighted the marginal notation on the 16 to 30 June 2002 payroll sheet,
which indicated that the company considered respondent “on leave.”

Appreciating these inconsistencies, together with the marginal notes in the payroll sheet, the CA
overturned the courts a quo and pronounced that no actual dismissal transpired; rather, Oco was
merely on AWOL.

Subsequently, respondent sought reconsideration. She insisted that petitioners actually terminated

her services, and that they failed to discharge their burden to prove that it was she who had
abandoned work by being on AWOL.

This time around, the CA reversed its earlier ruling.14 Albeit belatedly, the CA realized that (1) the
alleged hiring of new employees, (2) the presence of Oco in the office on the day of her termination,
and (3) the three-day discrepancy between the date of her dismissal, stated in her Complaint  before
the LA and that in her Position Paper were all immaterial to the threshold question of whether she
abandoned her work or was illegally dismissed.

Proceeding therefore with the main issue, the CA debunked petitioners’ insistence that Oco
abandoned her employment by being on AWOL. Firstly, it noted that she reported for work right after
her vacation, an act that indicated her intention to resume her employment. In this light, petitioners
failed to prove that she had intended to abandon her work. The appellate court held:15

A deeper study of the records show that Tegimenta failed to adduce proof of any overt act of Oco
that clearly and unequivocably showed her intention to abandoned her work when she allegedly
absented herself without leave. The absences incurred by Oco do not indicate that she already
abandoned her work, especially considering that Oco reported for work after the agreed
dates of her vacation leave, and she subsequently filed an illegal dismissal case against
Tegimenta. (Emphasis supplied).

Secondly, the CA rejected the payroll sheets as proof that Oco was on AWOL. It held that the
company’s marginal notes reflecting that she was “on leave” had no supporting attachments. It even
construed the notations as incompetent evidence because, despite her absence, the payroll sheets
for July 2002 onwards had no notations at all that she was “on leave.”16

Thirdly, the CA dismissed petitioners’ argument that Oco had effectively abandoned her work and
waived her claim for back wages when she changed her prayer from reinstatement to separation pay.
The appellate court simply explained that opting for separation pay, in lieu of reinstatement, could
Evidence II.
not support the allegation that Oco abandoned her work; and that the relief for separation pay did
not preclude the grant of back wages, as these two awards were twin remedies available to an
illegally dismissed employee.

Completely dissatisfied with the reversal of their fortune, petitioners implore this Court (1) to
discredit the allegation of Oco that she had in fact been dismissed by them and (2) to make a finding
that she abandoned her work by being on AWOL.

RULING OF THE COURT

The Factual Determination of

the Employee’s Dismissal 

Prefatorily, the inquiry into whether Garcia verbally fired Oco and whether the employee abandoned
her job are factual determinations generally beyond the jurisdiction of this Court;17 and in addition to
the weakness of petitioners’ case, all the courts below consistently affirmed the certainty of the
employee’s dismissal by the employer.18

An established doctrine in labor cases is that factual questions are for labor tribunals to resolve. Their
consistent findings are binding and conclusive and will normally not be disturbed, since this Court is
not a trier of facts.19 Therefore, on the basis of these circumstances alone, the appeal before us
already deserves scant consideration.

Nevertheless, petitioners adamantly try to persuade this Court to believe their narration that they did
not dismiss Oco. To prove their version of the story, they poke holes in her narration by harping on
her allegedly false claim that Tegimenta hired replacements and by faulting her for rendering work on
the very day that her services were supposedly terminated. Unfortunately, these purported defects in
her narration cannot carry the day for petitioners.

According to the CA, the hiring of new employees and the presence of Oco on the day of her
termination were all immaterial to resolving the issue of whether she was on AWOL or was illegally
dismissed. We find this appreciation to be correct. Courts consider the evidence as material if it
refers to the be-all and end-all of a petitioner’s cause.20 Here, none of the loopholes can resolve the
case, since it is expected that dismissals may occur even if no prior replacements were hired, and an
employer can indeed attempt to terminate employees on any day that they come in for work.

Petitioners also make a big fuss about the differing termination dates that Oco stated in her
Complaint (3 June 2002) and her Position Paper (30 May 2002). But in Prieto v. NLRC,21 we held that
employees who are not assisted by lawyers when they file a complaint with the LA may commit a
slight error that is forgivable if rectified later on.

Here, Oco only had one inadvertence when she filled out the Complaint in template form. She also
stated in all her subsequent pleadings before the LA, the NLRC, the CA and this Court that she was
dismissed on 30 May 2002. On this point, we similarly rule by regarding the inaccuracy as an error
that is insufficient to destroy her case.

Most notably, the LA observed that the employers “did not deny the claims of complainant [Oco] that
she was simply told not to work.”22 As in Solas v. Power & Telephone Supply Phils. Inc.,23 this silence
constitutes an admission that fortifies the truth of the employee’s narration. Section 32, Rule 130 of
the Rules Court, provides:

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

Evidence II.
Considering this rule of evidence, together with the immaterial discrepancies, this Court thus rules
against wholly invalidating the findings of the courts a quo.

The Employer’s Defense of Absence

without Official Leave 

After unsuccessfully assailing the narration of the employee, petitioners argue that Oco abandoned
her job by being on AWOL. As bases for this affirmative defense, they highlight her previous
instances of absence and tardiness. Then, they emphasize the marginal notes in the 16 to 30 June
2002 payroll, which showed that she was on leave. Finally, they equate the employee’s act of asking
for separation pay instead of reinstatement as an act of abandonment.

The bases cited by petitioners are bereft of merit.

First, the nonappearance of Oco at work was already accepted by the company as having resulted
from complications in her pregnancy. In fact, Garcia herself offered respondent a vacation leave.
Therefore, given that the absences of the latter were grounded on justifiable reasons, these absences
cannot serve as the antecedent to the conclusion that she had already abandoned her job. 24

For abandonment to exist, two factors must be present: (1) the failure to report for work or absence
without a valid or justifiable reason; and (2) a clear intention to sever the employer-employee
relationship, with the second element as the more determinative factor being manifested by some
overt acts.25

The mere absence of an employee is not sufficient to constitute abandonment. 26 As an employer,

Tegimenta has the burden of proof to show the deliberate and unjustified refusal of the employee to
resume the latter’s employment without any intention of returning.27

Here, Tegimenta failed to discharge its burden of proving that Oco desired to leave her job. The
courts a quo uniformly found that she had continuously reported for work right after her vacation,
and that her office attendance was simply cut off when she was categorically told not to report
anymore. These courts even noted that she had also called up the office to follow up her status; and
when informed of her definite termination, she lost no time in filing a case for illegal dismissal. 
Evidently, her actions did not constitute abandonment and instead implied her continued interest to
stay employed.

Second, the marginal notes in the 16 to 30 June 2002 payroll showing that she was on leave are
dubious. For one, the CA dutifully detected that none of the succeeding payroll sheets indicated that
Oco was considered by the company as merely AWOL. Hence, it becomes questionable whether there
is regularity in making simple notations  as Tegimenta’s reference in considering the status of an
employee. Therefore, we hold that the marginal notations in a single payroll sheet are not competent
proofs to back up petitioner’s main defense.

This Court also rejects the invocation by petitioners of the best-evidence rule. According to them, the
payroll sheet, and not the mere allegation of Oco, is the best evidence that they did not terminate
her.

However, petitioners seem to miss the whole import of the best- evidence rule. This rule is used to
compel the production of the original document, if the subject of the inquiry is the content of the
document itself.28 The rule provides that the court shall not receive any evidence that is merely
substitutionary in nature, such as a photocopy, as long as the original evidence of that document can
be had.29

Based on the explanation above, the best-evidence rule has no application to this case. The subject
Evidence II.
of the inquiry is not the payroll sheet of Tegimenta rather, the thrust of this case is the abundance of
evidence present to prove the allegation that Oco abandoned her job by being on AWOL.
Consequently, the employer cannot be logically stumped by a payroll sheet, but must be able to
submit testimonial and other pieces of documentary evidence – like leave forms, office memos,
warning letters and notices – to be able to prove that the employee abandoned her work.

Finally, petitioners posit that Oco’s act of replacing the prayer for reinstatement with that for
separation pay implied that respondent abandoned her employment.

Abandonment is a matter of intention and cannot lightly be inferred or legally presumed from certain
equivocal acts.30 For abandonment to be appreciated, there must be a “clear, willful, deliberate, and
unjustified refusal of the employee to resume employment.”31 Here, the mere fact that Oco asked for
separation pay, after she was told to no longer report for work, does not reflect her intention to leave
her job. She is merely exercising her option under Article 279 of the Labor Code, which entitles her to
either reinstatement and back wages or payment of separation pay.

As an end note, petitioners advance a procedural lapse on the part of the CA. They argue that since
no new facts, evidence or circumstances were introduced by respondent to the appellate court, it
cannot issue a Resolution that reverses its earlier Decision.

In Astraquillo v. Javier,32 we have similarly dealt with this contention and considered it as flawed. Our
procedural laws allow motions for reconsideration and their concomitant resolutions, which give the
same court an opportunity to reconsider and review its own ruling.

As stated in Section 5(g) of Rule 135, every court shall have the inherent power to amend and
control its processes and orders, so as to make them conformable to law and justice. “This power
includes the right to reverse itself, especially when in its honest opinion it has committed an error or
mistake in judgment, and that to adhere to its decision will cause injustice to a party-
litigant.”33 Thus, upon finding that petitioners had indeed illegally dismissed respondent, the CA
merely exercised its prerogative to reverse an incorrect judgment.

IN VIEW THEREOF, the 24 April 2006 Resolution of the Court of Appeals in CA-G.R. CV No. 87706
is AFFIRMED. The 12 May 2006 Petition for Review on Certiorari filed by Tegimenta Chemical
Philippines, Incorporated and Vivian Rose D. Garcia is hereby DENIED for lack of merit.

Evidence II.
35.) G.R. No. 146586             January 26, 2005

DEPARTMENT OF EDUCATION CULTURE and SPORTS, petitioner,

vs.
JULIA DEL ROSARIO, MARIA DEL ROSARIO, PACENCIA DEL ROSARIO, and HEIRS OF SANTOS DEL
ROSARIO, respondents.

DECISION

CARPIO, J.:

The Case

This is a petition for review1 to set aside the Decision2 dated 25 September 2000 and the Resolution dated 29
December 2000 of the Court of Appeals in CA-G.R. CV No. 43929. The Court of Appeals reversed the
Decision3 dated 7 July 1993 of the Regional Trial Court of Bulacan, Branch 8, Malolos ("trial court") in Civil Case No.
70-M-92.

The Facts

On 14 February 1992, respondents Julia Del Rosario, Maria Del Rosario, Pacencia Del Rosario and the Heirs of
Santos Del Rosario ("respondents") filed before the trial court a complaint for Recovery of Possession against
petitioner Department of Education, Culture and Sports ("DECS"). Respondents alleged that they own a parcel of
land with an area of 1,181 square meters ("Property") situated in Kaypombo, 4 Sta. Maria, Bulacan. The Property
was registered in 1976 in the name of respondents under Transfer Certificate of Title No. T-222432 of the Bulacan
Register of Deeds. Respondents alleged that the Kaypombo Primary School Annex ("KPPS") under DECS was
occupying a portion of the Property through respondents’ tolerance and that of their predecessors-in-
interest. Respondents further alleged that KPPS refused to vacate the premises despite their valid demands to do
so.

In its Answer, DECS countered that KPPS’s occupation of a portion of the Property was with the express consent
and approval of respondents’ father, the late Isaias Del Rosario ("Isaias"). DECS claimed that some time in 1959
Isaias donated a portion ("Donated Site") of the Property to the Municipality of Sta. Maria ("Municipality") for school
site purposes. Atty. Ely Natividad, now a regional trial court judge ("Judge Natividad"), prepared the deed of
donation and the acceptance. KPPS started occupying the Donated Site in 1962. At present, KPPS caters to the
primary educational needs of approximately 60 children between the ages of 6 and 8. Because of the donation,
DECS now claims ownership of the 650 square meter Donated Site. In fact, DECS renamed the school the Isaias
Del Rosario Primary School.

During the pre-trial conference held on 3 September 1992, DECS admitted the existence and execution of TCT No.
T-222432 (Exhibit "A"), Tax Declaration No. 6310 (Exhibit "B"), and the tax receipts in respondents’ names for the
years 1991 and 1992 (Exhibits "B-1" and "B-2"). On the other hand, respondents admitted the existence of Judge
Natividad’s affidavit that he prepared the deed of donation (Exhibit "1") and the tax declaration for 1985 in the
Municipality’s name (Exhibit "2"). Since there was no dispute that the Property was registered in respondents’
names, the parties agreed to a reverse trial with DECS presenting its evidence first to prove that there was a valid
donation to the Municipality.

DECS presented three witnesses: Ricardo Nicolas, Vidal De Jesus and Judge Natividad, all residents of Kaypombo,
Sta. Maria, Bulacan. The trial court summarized the witnesses’ testimonies, thus:

Defendant, represented by the Office of the Solicitor General, proceeded to present as its first witness, Ricardo
Nicolas, 78 years old, widower, housekeeper and residing at [K]aypombo, Sta. Maria, Bulacan, since 1953 up to the
present. He testified that during the duration of his residency in [K]aypombo, he came across a public elementary
school (KPPS); that as far as he knows, the land occupied by the primary school was formerly owned by Isaias del
Rosario who donated said land to the people of Sta. Maria, Bulacan in 1959; that the act of donating said land was
Evidence II.
made during a political meeting in his residence by Isaias del Rosario and in the presence of the then incumbent
mayor; he actually saw Isaias del Rosario and Mayor Ramos sign a document which is a deed of donation in favor
of the Municipality of Sta. Maria; that the signing was made in the presence of Judge Natividad who was then a
municipal councilor; that Isaias del Rosario is now dead but his death occurred long after the construction of the
KPPS and that Isaias del Rosario even witnessed the construction of the primary school.

Vidal de Jesus, the second witness for the defense, 65 years old, married, a barangay councilman of Kaypombo,
Sta. Maria, Bulacan, and presently residing at No. 437 Kaypombo, Sta. Maria, Bulacan, testified that as barangay
councilman, he was aware of the land problem of KPPS; that in 1991, the barangay council and the children of
Isaias del Rosario had a meeting in the presence of Judge Natividad, during which, the latter told the children of
Isaias del Rosario that the land had been donated by their father. The children agreed but requested that the school
be renamed after their father’s name; that the barangay council tried to secure a copy of the deed of donation from
the Municipality of Sta. Maria, but according to the people at the municipal hall, when they transferred to the new
municipal building, the deed got lost, only they were able to get a copy of the tax declaration in the name of the
municipality of Sta. Maria, Bulacan (Exh. "2"), a certification to that effect was issued by the municipal mayor (Exh.
"3"). They went to the DECS office in Malolos, but could not likewise find a copy of the deed.

The last witness for the defense was Judge Eli Natividad, 63 years old, widower, resident of Kaypombo, Sta. Maria,
Bulacan. He testified that KPPS is very near his house; that the land occupied by said school is formerly owned by
Isaias del Rosario, a close relative; that as far as he knows, the municipality of Sta. Maria is now the owner of the
land; that when he was still one of the incumbent municipal councilors of Sta. Maria in 1961, his relative Isaias del
Rosario went to his house and told him that he wanted to have a primary school in their place as he saw the plight
of small pupils in their place; that the elementary school then existing was very far from their place and Isaias del
Rosario wanted to have a primary school to help these pupils; that Isaias del Rosario was willing to donate a portion
of the questioned lot for school site, so that said matter was relayed to the municipal council; he also testified that he
prepared the deed of donation which was signed by Isaias del Rosario in his residence which was accepted by the
municipality of Sta. Maria, Bulacan through a resolution signed in the office of the secretary and the municipal
mayor; that a copy of said resolution could not be found due to the transfer of the municipal hall from the old to the
new building.5

Respondents presented two witnesses: Eugenia R. Ignacio and Maria Del Rosario-Esteban, daughters of the late
Isaias. The trial court summarized their testimonies, as follows:

For the plaintiffs, Eugenia R. Ignacio, 59, residing at Kaypombo, Sta. Maria, Bulacan testified that she knows the
plaintiffs as they are her brothers/sisters; that their father Isaias del Rosario died on April 18, 1966 long after the
construction of the school and that she does not know everything about the donation because her father never
informed them of his dealings and she did not inquire from him about the occupancy of the lot by the school.

Maria del Rosario-Esteban, 66, residing at Pulang-lupa, Pandi, one of the plaintiffs herein, testified that she knows
the property in question and that they own it by virtue of succession and that she cannot recall how the school was
constructed on the land; that her parents never donated any property because that is their only property. Also, she
stated that their father told them that he just lent the property temporarily to the municipality and she never found
any document conveying the lot in question to the municipality of Sta. Maria, Bulacan. 6

On 7 July 1993, the trial court rendered judgment dismissing respondents’ complaint for recovery of possession as
follows:

WHEREFORE, based on the foregoing premises, and for a much greater cause, the instituted complaint, for
recovery of possession of 1,181 square meters of land in Kaypombo, Sta. Maria, Bulacan, covered by TCT No. T-
222432 against the defendant is hereby DISMISSED without costs. 7

The trial court explained its decision in this wise:

After a careful consideration of the facts at hand, taking into account the credibility and reasonableness of the
testimonies of the witnesses, the court is of the opinion that the defense was able to prove the due execution of the
deed of donation and its acceptance, as well as the loss of the same, in accordance with Rule 130[,] Sec. 4. It is
recalled that Judge Eli Natividad, then a municipal councilor of Sta. Maria, testified that he was the person who
Evidence II.
prepared the deed of donation and later notarized the same, and that said deed was duly executed and signed
before him and in his presence. Likewise, he affirmed that the municipal board of Sta. Maria, Bulacan, passed a
resolution accepting the deed of donation in favor of the said municipality. Noteworthy is the rule that a
recantation/recollection of witness is a form of secondary evidence to prove the existence/content of a
document. Since the loss of the deed subject matter of this case was likewise duly proved by the defense, exerting
the best possible efforts to locate or secure a copy of the same and without bad faith on its part, this Court is bent to
give a greater weight to the secondary evidence adduced by the defense vis-à-vis the title in the name of the
plaintiff[s], most particularly in this case, where the plaintiffs failed to make it appear that other and more secondary
evidence is known to the defendant and can be produced by them.

Further judging on the consistency, credibility and personality of the witnesses of the defense, notably Judge Eli
Natividad who was then a municipal councilor of Sta. Maria at the time of the execution of the deed of donation and
who is thus in a best position to testify on the matter, not to mention the fact that their testimonies were all under
oath, the Court cannot avoid but give weight to their statements and declarations. The defense witnesses were not
induced by ill motive to testify in favor of the DECS, considering that they will not derive any personal benefit,
material or otherwise, from such an act. On the contrary, such act may be considered heroic, as it is a manifestation
of a moral compulsion to help shed light to the truth.

On the part of the plaintiffs, it was testified to by Eugenia Ignacio that their father (donor) died on April 18, 1966,
long after the school was constructed on the subject land with the occupation of the land by the school which
continued up to the present, and even after the land was allegedly transferred by succession to the plaintiffs in
1976, it was only now that it comes to the mind of the plaintiffs to seek recovery of the possession of the same. This,
among other things, may be taken to favor the stand of the defense that the land occupied by the school was in
truth, donated to the municipality of Sta. Maria. 8

Respondents appealed to the Court of Appeals. On 25 September 2000, the Court of Appeals rendered judgment
as follows:

WHEREFORE, premises considered, the appealed decision is REVERSED and another one entered ordering the
defendant to vacate the subject premises.9

The appellate court denied DECS’ motion for reconsideration in the Resolution dated 29 December 2000. Hence,
this petition.

The Court of Appeals’ Ruling

The Court of Appeals held that DECS failed to prove the existence and due execution of the deed of donation as
well as the Resolution of the municipal council accepting the donation. The Court of Appeals was not fully satisfied
that DECS or the Municipality had made a diligent search of the alleged "lost" deed of donation. Pertinent portions of
the Court of Appeals’ Decision read:

It is unfortunate that the Deed of Donation and the Resolution were not produced during the trial. The defendant
alleged that these were lost when the Municipality transferred to a new building. The defendant resorted to proving
the documents’ existence through Sec. 5 of Rule 130 (B) of the Revised Rules on Evidence by relying on the
testimony of the witnesses who were present during the execution of the lost documents. xxx.

xxx

The Court disagrees with the ruling of the lower court to the effect that the defendant was able to satisfy the
foregoing requisites. The defense was not able to prove the due execution or existence of the deed of donation and
the resolution, as well as the loss of these documents as the cause of their unavailability.

The Rule requires that the defendant must "prove its contents by a copy, or by a recital of its contents in some
authentic document, or by the testimony of the witnesses in the order stated". However, the defendant proceeded
with the last resort-testimony of the witnesses, without even showing any diligent effort to secure a copy of the deed
of donation and the resolution. Note that Atty. Eli Natividad, then a municipal councilor of Sta. Maria, testified that he

Evidence II.
was the person who prepared the deed of donation and later notarized the same. He also affirmed that the
municipal board of Sta. Maria, Bulacan passed a Resolution as he was a municipal councilor at that time such
resolution was passed. He testified that he furnished the municipal government, the Division Office of Education in
Bulacan, the court of Sta. Maria a copy of the deed. However, the defendant only submitted an affidavit showing
that the deed can no longer be located in the municipal government. There was no evidence to show that the
defendant looked for a copy from the Clerk of Court of Sta. Maria, Bulacan. If it is true that Atty. Natividad notarized
the deed, he should have a copy of it. In fact, such act of notarizing the deed should have been in his notarial
register. This notarial register was supposed to be forwarded to the Clerk of Court of the Court of First Instance of
the province and later, to the Chief of the National Library.

"Before secondary evidence of a writing may be introduced on the ground that the instrument has been lost there
must be proof that a diligent search has been made in the place where it is most likely to be found and that the
search has not been successful."

In the case at bar, this Court is not fully satisfied that a search was made or that there was diligence in the search.
The lower court erred in hastily concluding that the loss of the document was sufficiently established when in fact,
the defendant did not look for it in the office of the Clerk of Court and the National Library. Since there was no
diligent search, this Court finds it hard to believe the defendant’s theory that such documents existed because, for
sure, if there really was a notarized deed or a resolution, there must be a copy.

"Secondary evidence of the contents of writings is admitted upon the theory that the original cannot be produced by
the party by whom the evidence is offered within a reasonable time by the exercise of reasonable diligence. Until,
however, the non-production of the primary evidence has been sufficiently accounted for, secondary evidence is not
ordinarily admissible."

For this Court to affirm the ruling of the lower court based on testimonies alone will work injustice to the plaintiffs. 10

The Issue

In its memorandum, DECS raises the sole issue of –

WHETHER THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PETITIONER FAILED TO PROVE
THE DUE EXECUTION OR EXISTENCE OF THE DEED OF DONATION AND THE RESOLUTION OF THE
MUNICIPAL COUNCIL ACCEPTING THE DONATION, AS WELL AS THE LOSS OF THE DOCUMENTS AS THE
CAUSE OF THEIR UNAVAILABILITY.11

The Solicitor General contends that DECS had satisfactorily proven by secondary evidence the fact of donation, the
existence and due execution of the deed of donation as well as the municipal council Resolution accepting the
donation. DECS had also adequately proven the loss of these documents. According to the Solicitor General, based
on the evidence presented in the trial court, DECS established that Isaias donated a parcel of land to the
Municipality as the site of a school. Isaias executed a deed of donation, which then Atty. Eli Natividad
notarized. There was a municipal council Resolution accepting the donation and expressing gratitude to Isaias.
There was notice of this acceptance as DECS constructed the school on the Donated Site during the lifetime of the
donor, without objection on his part. Since all the essential formalities had been followed, the donation made by
Isaias long after the death of his wife Nieves Gumatay is valid and proven by secondary evidence.

The Court’s Ruling

The petition lacks merit.

Formal Requisites of Donations of Real Property

The donation of real property, which is a solemn contract, is void without the formalities stated in Article 749 of the
Civil Code of the Philippines ("Civil Code"). Article 749 of the Civil Code reads:

Evidence II.
Art. 749. In order that the donation of an immovable may be valid, it must be made in a public document, specifying
therein the property donated and the value of the charges which the donee must satisfy.

The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take
effect unless it is done during the lifetime of the donor.

If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this
step shall be noted in both instruments.

Article 749 of the Civil Code requires that the donation of real property must be made in a public instrument.
Otherwise, the donation is void. A deed of donation acknowledged before a notary public is a public document. 12 The
notary public shall certify that he knows the person acknowledging the instrument and that such person is the same
person who executed the instrument, acknowledging that the instrument is his free act and deed. The acceptance
may be made in the same deed of donation or in a separate instrument. An acceptance made in a separate
instrument must also be in a public document. If the acceptance is in a separate public instrument, the donor shall
be notified in writing of such fact. Both instruments must state the fact of such notification. 13

Best and Secondary Evidence

The best or primary evidence of a donation of real property is an authentic copy of the deed of donation with all the
formalities required by Article 749 of the Civil Code. The duty to produce the original document arises when the
subject of the inquiry are the contents of the writing in which case there can be no evidence of the contents of the
writing other than the writing itself. Simply put, when a party wants to prove the contents of the document, the best
evidence is the original writing itself.

A party may prove the donation by other competent or secondary evidence under the exceptions in Section 3, Rule
130 of the Revised Rules on Evidence. Section 3 reads:

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

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

(b) xxx;

(c) xxx;

(d) xxx.

In relation to this, Section 5 of Rule 130 reads:

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

Secondary evidence of the contents of a document refers to evidence other than the original document itself. 14 A
party may introduce secondary evidence of the contents of a written instrument not only when the original is lost or
destroyed, but also when it cannot be produced in court, provided there is no bad faith on the part of the offeror.
However, a party must first satisfactorily explain the loss of the best or primary evidence before he can resort to
secondary evidence. A party must first present to the court proof of loss or other satisfactory explanation for non-
production of the original instrument. The correct order of proof is as follows: existence, execution, loss, contents,
although the court in its discretion may change this order if necessary.15

Evidence II.
The testimony of Ricardo Nicolas may have established to some extent the existence of the deed of donation since
he testified that he was present when Isaias and the mayor talked about the donation and that he witnessed the
signing of the document.  However, Ricardo Nicolas admitted during cross-examination that he did not read and did
1a\^/phi1.net

not have personal knowledge of the contents of the document that Isaias and the mayor supposedly signed. 16

In the same vein, Vidal De Jesus’ testimony does not help to establish the deed of donation’s existence,
execution and contents. He testified that he never saw the deed of donation. On cross-examination, Vidal De Jesus
admitted that the information that Isaias donated the lot to the Municipality was only relayed to him by Judge
Natividad himself.17 If at all, DECS offered Vidal De Jesus’ testimony to establish the loss of the deed of donation.
Vidal de Jesus testified that the barangay council tried to get a copy of the deed but the Municipality informed the
barangay council that the deed was lost when the municipal office was transferred to a new building. DECS also
made a search in the DECS office in Malolos but this proved futile too.

This leaves us with Judge Natividad’s testimony. Judge Natividad testified that he prepared and notarized the deed
of donation. He further testified that there was a municipal council Resolution, signed in the Office of the Secretary
and of the Mayor, accepting the donation and expressing gratitude to the donor. He furnished the municipal
government, the DECS Division Office of Bulacan and the clerk of court of Sta. Maria a copy of the deed of
donation.

DECS did not introduce in evidence the municipal council Resolution accepting the donation. There is also no proof
that the donee communicated in writing its acceptance to the donor aside from the circumstance that DECS
constructed the school during Isaias’ lifetime without objection on his part. There is absolutely no showing that these
steps were noted in both instruments.

Sufficiency of Proof of Loss

What mainly militates against DECS’ claim is, as the Court of Appeals found, inadequate proof that DECS or the
Municipality made a diligent search in the places where the deed of donation may likely be found and that the
search was unsuccessful. Prior to the introduction of secondary evidence, a party must establish the existence and
due execution of the instrument. After a party establishes the existence and due execution of the document, he
must prove that the document was lost or destroyed.18 The destruction of the instrument — may be proved by any
person knowing the fact. The loss may be shown by any person who knew the fact of its loss, or by any one who
had made, on the judgment of the court, a sufficient examination in the place [or] places where the document or
papers of similar character are usually kept by the person in whose custody the document lost was, and has been
unable to find it; or who has made any other investigation which is sufficient to satisfy the court that the instrument is
indeed lost.19

Here, DECS allegedly made a search in the municipal building and in the DECS Division Office in Bulacan. The
copies of the deed of donation furnished these offices were purportedly "lost" when these offices transferred to new
locations. However, as the Court of Appeals correctly pointed out, Judge Natividad who claimed to have notarized
the deed of donation failed to account for other copies of the deed, which the law strictly enjoins him to record, and
furnish to other designated government offices.

The Notarial Law is explicit on the obligations and duties of a notary public. The law requires him to keep a notarial
register where he shall record all his official acts as notary public. The law specifies the information that the notary
public must enter in the notarial register. Failure to perform this duty results in the revocation of his commission as
notary public. We quote the provisions of the Notarial Law pertinent to the case:

SECTION 245. Notarial register. - Every notary public shall keep a register to be known as the notarial register,
wherein record shall be made of all his official acts as notary; and he shall supply a certified copy of such record, or
any part thereof, to any person applying for it and paying the legal fees therefor.1ªvvphi1.nét

Such register shall be kept in books to be furnished by the Attorney-General (Solicitor-General) to any notary public
upon request and upon payment of the actual cost thereof, but officers exercising the functions of notaries public ex
officio shall be supplied with the register at government expense. The register shall be duly paged, and on the first
page, the Attorney-General (Solicitor-General) shall certify the number of pages of which the book consist[s].

Evidence II.
SECTION 246. Matters to be entered therein. - The notary public shall enter in such register, in chronological order,
the nature of each instrument executed, sworn to, or acknowledged before him, the person executing, swearing to,
or acknowledging the instrument, the witnesses, if any, to the signature, the date of the execution, oath, or
acknowledgment or the instrument, the fees collected by him for his services as notary in connection therewith,
and; when the instrument is contract, he shall keep a correct copy thereof as part of his records, and shall
likewise enter in said records a brief description of the substance thereof, and shall give to each entry a consecutive
number, beginning with number one in each calendar year. The notary shall give to each instrument executed,
sworn to, or acknowledged before him a number corresponding to the one in his register, and shall also state on the
instrument the page or pages of his register on which the same is recorded. No blank line shall be left between
entries.

xxx

At the end of each week the notary shall certify in his register the number of instruments executed, sworn to,
acknowledged, or protested before him; or if none, such certificate shall show this fact.

A certified copy of each month’s entries as described in this section and a certified copy of any instrument
acknowledged before them shall within the first ten days of the month next following be forwarded by the
notaries public to the clerk of the Court of First Instance of the province and shall be filed under the
responsibility of such officer; Provided, that if there is no entry to certify for the month, the notary shall forward a
statement to this effect in lieu of the certified copies herein required. (As amended by C.A. 72, Sec. 1.)

SECTION 247. Disposition of notarial register. - Immediately upon his notarial register being filled, and also
within fifteen days after the expiration of his commission, unless reappointed, the notary public shall
forward his notarial register to the clerk of the Court of First Instance of the province or of the City of
Manila, as the case may be, wherein he exercises his office, who shall examine the same and report thereon to the
judge of the Court of First Instance. If the judge finds that no irregularity has been committed in the keeping of the
register, he shall forward the same to the chief of the division of archives, patents, copyrights, and trade-
marks. In case the judge finds that irregularities have been committed in the keeping of the register, he shall refer
the matter to the fiscal of the province - and in the City of Manila, to the fiscal of the city - for action and the sending
of the register to the chief of the division of archives, patents, copyrights, and trade-marks shall be deferred until the
termination of the case against the notary public. (Emphasis and underscoring supplied)

The Notarial Law mandates a notary public to record in his notarial register the necessary information regarding the
instrument acknowledged before him. The Notarial Law also mandates the notary public to retain a copy of the
instrument acknowledged before him when it is a contract.20 The notarial register is a record of the notary public’s
official acts. Acknowledged instruments recorded in the notarial register are public documents. 21 If the instrument is
not recorded in the notarial register and there is no copy in the notarial records, the presumption arises that the
document was not notarized and is not a public document.22

DECS should have produced at the trial the notarial register where Judge Natividad as the notary public should
have recorded the deed of donation. Alternatively, DECS should have explained the unavailability of the notarial
register. Judge Natividad could have also explained why he did not retain a copy of the deed of donation as required
by law. As the Court of Appeals correctly observed, there was no evidence showing that DECS looked for a copy
from the Clerk of Court concerned or from the National Archives. All told, these circumstances preclude a finding
that DECS or the Municipality made a diligent search to obtain a copy of the deed of donation.

In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence.
"Preponderance of evidence" means that the evidence as a whole adduced by one side is superior to that of the
other. In other words, preponderance of evidence means the greater weight of the evidence - or evidence that
outweighs the evidence of the adverse party. This Court is not satisfied that the evidence on the side of the party
carrying the burden of proof is of preponderating weight.

Finally, DECS raises for the first time before this Court the issue on whether respondents’ claim is barred by the
equitable defense of laches. DECS did not raise this matter in the complaint or during the trial in the court below.
DECS did not also raise this matter in its appeal to the Court of Appeals.  This Court cannot entertain this issue at
l^vvphi1.net

this late stage, for to do so would plainly violate the basic rule of fair play, justice and due process. 23
Evidence II.
Much as we sympathize with the plight of the schoolchildren, we do not find reversible error in the Decision of the
Court of Appeals. We cannot grant the relief DECS is seeking and disregard existing laws and jurisprudence. DECS,
however, is not without remedy. The government can expropriate at any time the Donated Site, paying just
compensation to respondents.

WHEREFORE, we DENY the petition. The Decision dated 25 September 2000 and the Resolution dated 29
December 2000 of the Court of Appeals in CA-G.R. CV No. 43929 are AFFIRMED.

Evidence II.
Evidence II.