1BEST EVIDENCE RULE No. 0810.

3 On June 25, 1987, VMCI again purchased 28,000 pieces of empty white
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:
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

Johnson Lee 600 ₱ 60,000.00 Arsenio Yang, Jr. 1,050

Lok Chun Suen 1,200 120,000.00 Charles Sy 2,800

Charles O. Sy 1,800 180,000.00 Lok Chun Suen 1,400

Eugenio Flores, Jr. 2,100 210,000.00 Total 5,250

Arsenio Yang, Jr. 300 30,000.00

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
TOTAL 6,000 ₱600,000.00 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.
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 At the time of the approval of the dissolution of the corporation on November 30,
Moreno, 1,050 shares; Arsenio Yang, Jr., 700 shares and Charles O. Sy, 700 1987, the shares of each stockholder were as follows:
shares.1

Name of Stockholders Total as of Nov. 30.

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
Johnson Lee, 600 (subscription); 60
price of ₱565,750.00. NMI issued Charge Invoice No. 08092 dated June 11, 1987 to
(June 7, 1980 stock dividend); 40
VMCI covering said sale. On June 18, 1987, VMCI purchased 100,000 pieces of
(May 2, 1981 stock dividend) --------- 700 shares
empty white bags from NMI for ₱730,000.00 for which NMI issued Charge Invoice

1
 Except as to the particulars of the checks, the accusatory portions of the two
Lok Chun Suen, 1,200 (subscription); 120 Informations are identical, thus:
(June 7, 1980 stock dividend); 80
(May 2, 1981 stock dividend) ---------- 1,400 shares
That sometime in the month of August 1987, in the City of Bacolod,
Charles O. Sy, 1800 (subscription); 180 Philippines, and within the jurisdiction of this Honorable Court, the herein
(June 7, 1980 stock dividend); 120 accused, Johnson Lee, being then the President and Sonny Moreno, the
(May 2, 1981 stock dividend); 700 General Manager of Neugene Marketing, Inc., with the duty and
(acquisition from Eugenio Flores ---------- 2,800 shares 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
Arsenio Yang, Jr., 300 (subscription); 30 Trustees, Roger Reyes, Ernesto Treyes, and Eutiquio Fudolin, the said
(June 7, 1980 stock dividend); 20 accused conspiring, confederating, and acting in concert far from
(May 2, 1981 stock dividend); 700 complying with the aforementioned obligation having collected the amount
(acquisition from Eugenio Flores) -------- 1,050 shares 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
Sonny Moreno, 1,050 (acquisition offended party, with intent of gain, and with unfaithfulness or abuse of
From Eugenio Flores) ----------------------- 1,050 shares confidence failed and refused to deliver the aforementioned amount to the
herein offended party, up to the present, in spite of proper demands, but
Total ---------------------------------- 7,000 shares 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
Pursuant to Section 11 of the Corporation Code, the Securities and Exchange amount of FIVE HUNDRED SIXTY-FIVE THOUSAND SEVEN HUNDRED
Commission approved the dissolution of the corporation on March 1, 1988 subject to FIFTY (₱565,750.00) PESOS, Philippine Currency. Act contrary to law.9
compliance of the requirements, such as the sending of notices to stockholders and
publication thereof in a newspaper of general circulation, among others. The cases were docketed as Criminal Cases Nos. 10010 and 10011.

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.
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.
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

2
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 "K" Bank of the Philippine
section of VMCI, which had custody of all checks and other corporate records, was Village Extension Check
near her office. She testified that the checks, including their other records, were lost No. 068706 dated
during the flood in 1985.12 She also testified on the Certification13 issued by Carolina August3, 1987
Diaz, the Comptroller of VMCI, confirming the loss of the two checks. She, however, ₱565,750.00
admitted that she did not see the original copies of the checks14 and that she was not
a signatory thereto.15
"K-1" Signature found on the
dorsal side of Exhibit "K"
Thereafter, the prosecution formally offered in evidence the counter-affidavit of the which Mrs. Flores
petitioner during the preliminary investigation, as well as the charge invoices and identified as the signature
checks, viz. of accused Johnson Lee.
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.

"K-2" Rubberstamp showing the To prove that Exhibit "K" was

"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
To prove that Victorias Milling Co., Inc.
name of "Solidbank" side deposited by accused Lee in the
(VMC) ordered 77,500 pieces of
of Exhibit "K" Solidbank which is not appearing on
empty bags from NMI on June 11,
the dorsal the official depository bank
1987 and that these bags were
of NMI, the official NMI depository
delivered to VMC.
bank being the BPI Plaza Cervantes
Branch.
To prove that VMC ordered 100,000
pieces of empty bags from NMI on
"L" BPI Legaspi Village To prove that VMC made a check
June 18, 1987 and that these bags
Extension Check No. payable to NMI in the amount of
were delivered to VMC.
068993 dated Aug. 19, ₱934,400, as payment to NMI for the
1987 amount of delivery of the empty bags in the
To prove that VMC ordered 28,000 ₱934,400.00 mentioned in Exhibits "G, "H" and "I."
pieces of empty bags from NMI on
June 25, 1987 and that these bags
"L-1" Signature found on the To prove that the accused Lee
were delivered to VMC.
dorsal side of Exhibit "L" received and was in possession of
which Mrs. Flores identified Exhibit "L" and that he indorsed and
To prove that in 1988, NMI made a as the signature of deposited the same.
demand upon the accused for the accused Lee
delivery of the amount of
₱1,500,150.00 representing VMC’s
"L-2" Rubberstamp showing the To prove that Exhibit "L" was
payment for the delivery of the empty
name of "Solidbank" deposited by accused Lee in the
bags mentioned in Exhibits "G," "H"
appearing on dorsal side of Solidbank which is not the official
and "I."
Exh. "L" depository bank of NMI, the official
NMI depository bank being the BPI
To prove the genuineness, Plaza Cervantes Branch.16
authenticity and due execution of
Exhibit "J."
The prosecution also offered in evidence the counter-affidavit of the petitioner during
the preliminary investigation, as follows:

3
 time-consuming trial, and thus becomes an oppressive exercise of judicial
"O" Counter-Affidavit To prove that the proceeds of Exhibit authority; hence, the imperative necessity for the issuance of a temporary
dated September 9, "K" and "L" in the total amount of restraining order or preliminary injunction requiring respondent judge to refrain
1988 signed and ₱1,500.150 are in the possession and from further proceeding with Crim. Cases Nos. 10010 and 10011 until the
submitted by Johnson control of the accused and that both Petition shall have been disposed of, otherwise, failure of justice is sure to
Lee refused to in B.C.-I.S. No. 88-347, ensue.19
deliver the same to NMI despite
consisting of 5 pages demand
On March 14, 2003, the Court of Appeals rendered judgment dismissing the petition
"O-1" Signature found on To prove the genuineness, due above for lack of merit.20
page 5 of Exhibit "O" the typewritten which both of the
execution and accused also admitted. The Court of Appeals ruled that the charge invoices and the checks were not the
authenticity of Exhibit best evidence to prove receipt by the accused of the amounts allegedly
"O", name "Johnson misappropriated; hence, the best evidence rule does not apply. It also held that even
Lee" 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
"O-2" Paragraph 6 of Exhibit Same purpose as in Exhibit "O". Appeals declared that, in any event, the prosecution proved the loss or destruction or
"O" found on page 2 non-availability of the checks and charge invoices. The petitioner’s motion for
thereof.17 reconsideration of the decision suffered the same fate.

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
The petitioner then sought relief from this Court, in a petition for review on certiorari,
and raises the following issues:
1. CAN PRIVATE DOCUMENT OFFERED AS AUTHENTIC BE RECEIVED IN
EVIDENCE WITHOUT PROOF OF ITS DUE EXECUTION & AUTHENTICITY?
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,

4
 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
adequate24 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 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
5
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 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:
6
 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;
(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 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:
7
(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.
… A Yes, Your Honor.
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?
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?
Q And your table up to her cubicle, how far is your table from her cubicle?
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?
…
8
A Ah, Mrs. Diaz, in fact, ah – there is a Memo from the Legal Affairs that we will ATTY. MAGDAMIT:
submit the Certification to the Honorable Court and the Memo was addressed to Yes, Your Honor.
Mrs. Diaz. And there was a note from Mrs. Diaz to my direct Boss, the Chief COURT:
Accountant, and then I was tasked by my immediate Boss to attend to this. Alright, cross for the accused Moreno. We will give the Manila lawyer the first shot.
Q How were you able to secure a Certification? CROSS-EXAMINATION OF THE
A A Certification was issued also upon our recommendation to the Chief WITNESS MERLITA T. BAYABAN
Accountant that we cannot produce anymore the original copies of the said CONDUCTED BY ATTY. SIMEON M.
document. MAGDAMIT.
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? ATTY. MAGDAMIT
A Yes, Your Honor. Q Madam Witness, when you received the subpoena, it contained a photocopy of
Q And you are showing the original copy of the Certification? the checks that were being requested, is that correct?
A Yes, Your Honor. (At this juncture, there is no answer from the witness)
Q I show to you the Certification dated December 6, 2001 issued by Carolina Diaz, ATTY. MAGDAMIT: (Follow-up question)
Comptroller. Do you know whose signature is this? Q Did it already contain a copy of the photocopy?
A That is the signature of Mrs. Carolina S. Diaz. A Ah. Attached to the subpoena.
Q How do you know that this is her signature? Q Have you seen this photocopy when you received the subpoena? You did not
A I’m very much familiar with her signature because in our day to day undertakings see?
in the office, I can see this in the checks she signed, and in the Office A Ah, actually, the subpoena was directed to the Legal.
Memorandum. And, in fact, I also prepare some of the communications for her Q You did not see. You did not see the photocopy?
signature. May I know the point of Compañero, Your Honor.
Q For the record, Madam Witness, will you please read the first paragraph of that WITNESS: (Answers before Atty. Magdamit)
Certification issued by Carolina Diaz? A I remember it was presented to me by Mrs. Diaz.
A "Victorias Milling Co., Inc. Certification. This is to certify that Victorias Milling Co., ATTY. MAGDAMIT
Inc. no longer have the original copies of the BPI, Legaspi Village, Extension Q Mrs. Diaz. So, let me just clear this up. The subpoena did not immediately go to
Office, Legaspi St., Makati, Metro Manila, Check No. 068766 dated August 3, 1987 the Legal, it was presented to you by Mrs. Diaz?
and Check No. 068993 dated August 19, 1987 as the same were destroyed by A No, it was presented by the Legal to our Comptroller. Then . . .
flash flood that hit the province of Negros Occidental particularly the City of
Victorias on November 28, 1995." ...
FISCAL ESQUILLA: COURT:
Your Honor, may I request that this Certification be marked as our Exhibit "X" Q And then to?
temporarily. A And then to me.
COURT: Q There is an initial, "MGR." Do you know who is that?
Mark it. A That is Mrs. Melanie G. Roa, our Chief Accountant.
FISCAL ESQUILLA: Q And from then, when it reached you, you were the ones who sorted through the
And then the signature as identified by this witness, of her immediate Boss, be files, were you the one?
encircled and marked as Exhibit "X-1." A Ah, my subordinate.
COURT: Q Ah, you were not the one?
Mark it. A No, Your Honor.
COURT INTERPRETER: Q Now, but you were certain – I withdraw that question. When you received the
Your last Exhibit is Exhibit "Y." subpoena with the attached document, were you already aware that the records,
FISCAL ESQUILLA: the original, were destroyed or you were not yet aware?
I will change my Exhibit from Exhibit "X" and "X-1" to "Z" and "Z-1." No further, A Very much aware that the records were destroyed by the flash flood because it
Your Honor. was not only in that case that we were tasked to look for the documents. There
COURT: were also Examiners from the Bureau of Internal Revenue who asked for the
Do you want to cross? documents prior to 1995 and that’s our reason, we cannot produce the documents.

9
 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 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
10
 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. SO ORDERED.
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
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.
11
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 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.
12
 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 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
13
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:
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;
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
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
14
did not read and did 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].
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
15
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)
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. Court cannot entertain this
issue at this late stage, for to do so would plainly violate the basic rule of fair play,
justice and due process.23
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. SO ORDERED.

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.

16
 G.R. No. 150905. September 23, 2003
CITIBANK, N.A. MASTERCARD,, Petitioner, v. EFREN S. TEODORO, respondent.
DECISION
PANGANIBAN, J.:
Before secondary evidence may be admitted to prove the contents of original
documents, the offeror must prove the due execution and the subsequent loss or
unavailability of the original.
The Case
The Petition for Review1 before us assails the July 31, 2001 Decision2 and the
November 22, 2001 Resolution3 of the Court of Appeals (CA) in CA-GR SP No.
62891. The dispositive portion of the challenged Decision reads as follows:
WHEREFORE, premises considered, the Petition is GRANTED; and
the Decisions of the trial courts are hereby REVERSED and SET ASIDE. No costs.4
The assailed Resolution denied petitioners Motion for Reconsideration.
The Facts
Petitioner operates a credit card system through which it extends credit
accommodations to its cardholders for the purchase of goods and services from its
member establishments. The purchases are later on paid for by cardholders upon
receipt of the billings or statements of account from the company. Respondent Efren
S. Teodoro was one such cardholder. On December 14, 1990, he applied for
membership with petitioner. After his application was approved, he was issued
Citibank, N.A. Mastercard No. 5423-3920-4457-7009.
Under the terms and conditions governing the use of the Citibank credit card, the
cardholder undertakes to pay all the purchases made using the card within the
period indicated on the statement of account or within thirty (30) days from the date
or dates of its use. Charges that remain unpaid within the period fixed in the monthly
statement of account shall earn interest at the rate of 3.5 percent per month plus a
penalty fee equivalent to 5 percent of the amount due for every month or even a
fraction of a months delay.
Respondent made various purchases through his credit card. Accordingly, he was
billed by petitioner for those purchases, for which he tendered various payments.
Petitioner claims that as of January 20, 1995, the obligations of respondent stood at
P191,693.25, inclusive of interest and service charges. Several times it demanded
payment from him, but he refused to pay, claiming that the amount demanded did
not correspond to his actual obligations. His refusal prompted petitioner to file a
Complaint for collection on January 25, 1996 before the Regional Trial Court (RTC)
of Makati City. The case was docketed as Civil Case No. 96-092 and raffled to
Branch 133.
The RTC, in an Order dated April 23, 1996, dismissed the Complaint for lack of
jurisdiction over the amount involved. The case was then transferred to the
Metropolitan Trial Court (MTC) of Makati City, where it was docketed as Civil Case
No. 51586 and raffled to Branch 66.
During the trial, petitioner presented several sales invoices or charge slips, which
added up to only P24,388.36. Although mere photocopies of the originals, the
invoices were marked in evidence as Exhibits F to F-4. Because all these copies
appeared to bear the signatures of respondent, the trial court deemed them sufficient
proof of his purchases with the use of the credit card. Accordingly, the MTC in its
July 25, 2000 Decision5 ordered him to pay petitioner the amount of P24,388.36 plus
interest and penalty fee. The material portion of the Decision reads:
[Petitioner] is claiming that [respondent] made use of its credit card. And as of
January 20, 1995, [respondents] obligation to [petitioner] ballooned to the sum of
P191,693.25.
This is clear according to [petitioner] as shown by the Statement of Accounts.
To the mind of this Court, the Statement of Account alone will not prove that
[respondent] has an outstanding obligation to [petitioner] in the amount of
P191,693.95. This must be substantiated by the Sales Invoices which unearthed the
purchases made by [respondent] when he availed himself of the credit card of
[petitioner].
While it is true that [petitioner] has offered the Sales Invoices (Exhibits F, F-1, F-4) to
show the purchases made by [respondent], it is equally true also that adding all the
amount in said invoices, the sum of P191,693.95 which according to [petitioner] is
the outstanding obligation of [respondent], is hardly met. [Petitioner] even admitted
that it could not produce all the invoices. Without the other Sales Invoices, there is a
cloud of doubt hovering over the claim of [petitioner] to [respondent].
17
In fact, summing up all the amount[s] indicated in the aforesaid Sales Invoices the
fact that the [respondent] has incurred to [petitioner] an obligation in the amount of
P24,388.36 as a result of the formers availment of the credit card of the latter.
It is elementary procedure that [petitioner] must prove [its] case with preponderance
of evidence. Without all the other Sales Invoices to uncover the purchases made by
[respondent] when he used the credit card of [petitioner], it is undeniable x x x that
[petitioner] is caught in the web of doubt with respect to the accuracy of its claim to
the [respondent].
WHEREFORE, premises considered, this Court hereby renders judgment as follows:
1. Ordering [respondent] to pay [petitioner] P24,388.36 with an interest of 3.5% and a
penalty fee equivalent to another 5% of the amount due for every month due or a
fraction of a months delay starting February 21, 1995 until the entire obligation is
fully paid;
2. Ordering [respondent] to pay [petitioner] 25% of any and all amounts due and
payable as agreed attorneys fees plus cost of suit.6
Thereafter, respondent appealed the MTC judgment to the RTC of Makati City,
where the appeal was docketed as Civil Case No. 00-1051 and raffled to Branch
146. In its October 30, 2000 Decision,7 the RTC affirmed the MTC Decision in toto.
Ruling of the Court of Appeals
The focal issue of the case according to the CA was whether the photocopies of the
sales invoices or charge slips, marked as Exhibits F to F-4, were competent proofs of
the obligations of respondent. These were the only evidence presented by petitioner
that could prove the actual amount of obligation he had incurred in favor of the
former. In reversing the trial courts, the CA ruled that this evidence was insufficient to
prove any liability on respondents part.
According to Sections 3 and 5 of Rule 130 of the Rules of Court, whenever the
subject of inquiry is the content of a document, its original must be produced, as it is
the best evidence to prove such content. Secondary evidence, like the subject
photocopies, is inadmissible. It will be admissible only if the offeror proves (a) any of
the exceptions enumerated in Section 3 and (b) the conditions for its admissibility set
forth in Section 5 of Rule 130. For secondary evidence to be admissible, there must
be satisfactory proof of (1) the due execution of the original; (2) the originals loss,
destruction or unavailability that is not due to the offerors bad faith; and (3)
reasonable diligence and good faith in the search for or attempt to produce the
original.
Although petitioner was able to prove the existence of the original sales invoices, it
failed to prove their due execution or to account for their loss or unavailability.
Hence, this Petition.8
Issues
Petitioner raises the following issues for our consideration:
I. Whether or not the Court of Appeals erred in reversing and setting aside the
decision of the trial courts for insufficiency of evidence to support its findings.
II. Whether or not the Court of Appeals erred in holding that petitioner failed to prove
the due execution and the cause of the unavailability and non-production of the
charge slips marked in evidence as Exhibits F to F-4.9
In brief, the main issue boils down to whether the photocopies of the sales invoices
or charge slips marked during trial as Exhibits F to F-4 are admissible in evidence.
The Courts Ruling
The Petition has no merit.
Main Issue:
Admissibility of Photocopies
Petitioner contends that the testimony10 of its principal witness - Mark Hernando,
assistant manager of Citibank, N.A. Mastercard -- proves the following:
a) the existence or due execution of the original sales invoices which sufficiently
proved respondents liability of P24,388.36;
b) the loss or unavailability of the original sales invoices; and
c) petitioners reasonable diligence and good faith in the search for or attempt to
produce the originals.
It further argues that Hernando competently identified the signatures of respondent
on the sales invoices, having recognized them as identical to the signature on the
latters credit card application form.
18
On the other hand, respondent maintains that petitioner failed to prove the due
execution of the sales invoices. According to him, Hernando was not privy to such
execution and could not have properly or competently declared that the signatures
on the invoices and on the application form belonged to the former. The latter was
not the person before whom the application form was signed, executed or
acknowledged; he was not even present then. As to the sales invoices and
respondents alleged signatures thereon, he saw them only after the Complaint had
been filed in court or long after those invoices had been executed. He was therefore
not competent to identify the signatures.
Because Hernandez had not actually witnessed the execution of the sales invoices
and the application form, respondent concludes that petitioner failed to observe
Section 5 of Rule 130 of the Rules of Court, which provides that the contents of the
original may be proven by the testimony of witnesses.
Finally, respondent contends that the alleged loss or unavailability of the original
sales invoices was not sufficiently established. Allegedly, Hernandez had requested
the originals from Equitable Credit Card Network, Inc., but failed to show in court that
he had followed up his request as advised by another witness, Zen Hipolito.
Therefore, the requirement of reasonable diligence and good faith in the search for
or attempt to produce the originals was not satisfied, because he had shown no
proof of having followed up the request.
The burden of proof rests upon petitioner, as plaintiff, to establish its case based on
a preponderance of evidence. It is well-settled that in civil cases, the party that
alleges a fact has the burden of proving it.11 Petitioner failed to prove that respondent
had an obligation in the principal amount of P24,388.36, because the photocopies of
the original sales invoices it had presented in court were inadmissible in evidence.
Moreover, had they been admissible, they would still have had little probative value.12
The original copies of the sales invoices are the best evidence to prove the alleged
obligation. Photocopies thereof are mere secondary evidence. As such, they are
inadmissible because petitioner, as the offeror, failed to prove any of the exceptions
provided under Section 313 of Rule 130 of the Rules of Court, as well s the conditions
of their admissibility. Because of the inadmissibility of the photocopies in the
absence of the originals, respondents obligation was not established.
Section 5 of Rule 130 of the Rules of Court states:
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.
Applying the above Rule to the present case, before a party is allowed to adduce
secondary evidence to prove the contents of the original sales invoices, the offeror
must prove the following: (1) the existence or due execution of the original; (2) the
loss and destruction of the original or the reason for its nonproduction 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.14 The correct order of proof is as follows: existence,
execution, loss, and contents. At the sound discretion of the court, this order may be
changed if necessary.15
In the present case, the existence of the original sales invoices was established by
the photocopies and the testimony of Hernandez. Petitioner, however, failed to prove
that the originals had been lost or could not be produced in court after reasonable
diligence and good faith in searching for them.
Indeed, the loss of the originals and reasonable diligence in the search for them
were conditions that were not met, because the sales invoices might have been
found by Equitable. Hernandez, testifying that he had requested the originals from
Equitable, failed to show that he had subsequently followed up the request.16
Finally, when more than one original copy exists, it must appear that all of them have
been lost, destroyed, or cannot be produced in court before secondary evidence can
be given of any one. A photocopy may not be used without accounting for the other
originals.
In Santos v. Santos18 the Court upheld the pronouncement of the CA that before the
appellees therein could be allowed to adduce secondary evidence to prove the
contents of the original, they had to prove -- with the requisite quantum of evidence --
the loss, the destruction or the unavailability of all original copies of the document.
In the present case, triplicates were produced, although the cardholder signed the
sales invoice only once.19 During the trial, Hernandez explained that an original copy
had gone to respondent, another to the merchant, and still another to petitioner.20
Each of these three copies is regarded as an original in accordance with Section 4
(b) of Rule 130 of the Rules of Court.[21] Petitioner failed to show that all three
original copies were unavailable, and that due diligence had been exercised in the
search for them.
WHEREFORE, the Petition is DENIED. Costs against petitioner. SO ORDERED.
19
 [G.R. No. 80505 :  December 4, 1990.]
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:
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).
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.
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:
20
When there is no evidence and nothing to indicate the principal witness for the Moreover, the presentation at the trial of the "buy-bust money" was not indispensable
prosecution was actuated by improper motives, the presumption is that he was not to the conviction of the accused-appellant because the sale of the marijuana had
so actuated and his testimony is entitled to full faith and credit. 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,
Tandoy submits that "one will not sell this prohibited drug to another who is a total the failure to produce the marked money itself would not constitute a fatal omission.
stranger until the seller is certain of the identity of the buyer."
We are convinced from the evidence on record that the prosecution has overcome
The conjecture must be rejected. the constitutional presumption of innocence in favor of the accused-appellant with
In People v. Paco, 5 this Court observed: 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
Drug-pushing when done on a small level as in this case belongs to that class of people.
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 WHEREFORE, the appeal is DISMISSED and the challenged decision AFFIRMED in
minutes. The fact that the parties are in a public place and in the presence of other toto, with costs against the accused-appellant. SO ORDERED
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 excludes the introduction of secondary evidence
except in the five (5) instances mentioned therein.
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. G.R. No. L-35366             August 5, 1931

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THE PROVINCIAL FISCAL OF PAMPANGA, petitioner,
vs.
HERMOGENES REYES, Judge of First Instance of Pampanga, and ANDRES
GUEVARRA, respondents.
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.)
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.
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