CALIXTO SAADO, petitioners, vs. THE COURT OF APPEALS and SIMEON G. NEPOMUCENO, respondents. [G.R. No. 108338.

April 17, 2001] MELO, J.: This case is one of the older ones which was raffled to undersigned ponente pursuant to the Courts Resolution in A.M. 00-9-03 dated February 27, 2001 and concerns a petition seeking the reversal of the decision of the Court of Appeals dated September 11, 1992 and its resolution dated October 15, 1992 denying reconsideration. The Court of Appeals modified the decision of Branch 18 of the Regional Trial Court of the Ninth Judicial Region stationed in Pagadian City which was rendered in favor of herein petitioner. Disposed thus the Court of Appeals in its CA-G.R. CV No. 23165 per Justice Montenegro, with Justices Paras and Ordoez-Benitez concurring: WHEREFORE, premises considered, judgment is hereby rendered: (a) affirming the judgment appealed from with modification as follows: 1. Ordering and sentencing defendant-appellant Simeon G. Nepomuceno to pay the share of plaintiff-appellee in the amount of P168,000.00 covering the period of four (4) years from February 19, 1975 to February 19, 1979, with only eight (8) hectares considered to be productive; 2. Ordering defendant-appellant Simeon G. Nepomuceno to pay reasonable rental of the fishpond area in question from February 20, 1979 to March 20, 1980 in the amount of P25,000.00; 3. Ordering and sentencing defendant-appellant Simeon G. Nepomuceno and defendant Edgar J. Chu, to jointly pay plaintiff-appellee the reasonable rentals of the fishpond area in question at the rate of P25,000.00 per annum from March 21, 1980 to January 2, 1985; 4. Ordering and sentencing defendant-appellant Simeon G. Nepomuceno and defendant Edgar J. Chu, to jointly and severally pay plaintiff-appellee the sum of P100,000.00 as attorney' fees; 5. Ordering and sentencing defendant-appellant Simeon G. Nepomuceno and Edgar J. Chu to pay the costs; and (b) reversing the decision appealed from insofar as it ordered "defendants jointly to restore possession and control of the fishpond area in question to the plaintiff. (pp. 37-38, Rollo.) The generative facts are chronicled as follows: The controversy began on October 28, 1969 when the defunct Philippine Fisheries Commission issued in favor of petitioner Saado Ordinary Fishpond Permit No. F-5810-X covering an area of fifty hectares situated in Bo. Monching Siay, Zamboanga del Sur. As a consequence, petitioner on January 6, 1972 executed a deed of quitclaim involving twenty hectares of the original area of fifty hectares in favor of his uncle and brother (Decision of the Office of the President, p. 46, Rollo). On July 16, 1973, petitioner as First Party and private respondent Nepomuceno as Second Party executed a contract entitled "Contract of Fishpond Development and Financing", which pertinently provided: That the FIRST PARTY is the possessor and holder of a piece of agricultural land with an area of approximately FIFTY (50) HECTARES COVERED BY Ordinary Fishpond Permit No. F-5810-X situated at Monching, Siay, Zamboanga del Sur; That the SECOND PARTY agreed to undertake full expenses for the development of an area of THIRTY (30) hectares, out of the approximately FIFTY (50) hectares, covered by Ordinary Fishpond Permit No. F-5810-X of the FIRST PARTY and which parcel is described and bounded as follows:

xxx xxx

xxx

That the development which shall be undertaken by the SECOND PARTY on the aforesaid area of THIRTY (30) hectares, consists of: a -- Construction of dumps; gates, buildings and other accessories pertinent to the full development of the fishpond area; b -- Construction of dikes and the purchase of Bangus Fry for the said fishpond; That the whole amount invested by the SECOND PARTY for the development of the aforesaid area for fishpond shall first be recovered out of the products of the fishpond area; That after the full investment of the SECOND PARTY shall have been recovered, the sharing basis with the FIRST PARTY shall immediately commence for a period of Four (4) years and the sharing basis shall be in accordance with the following percentage: THIRTY FIVE PERCENT (35%) of the Net per harvest - FIRST PARTY; SIXTY FIVE PERCENT (65%) of the Net per harvest - SECOND PARTY; That after the expiration of the Four (4) years of sharing basis on the Net harvest, this contract of sharing basis shall be renewed at the option of the second party for a period of another Four (4) years; (pp. 26-27, Rollo.) On July 18, 1973, the contracting parties executed a handwritten agreement, modifying the earlier agreement by excluding the area of ten hectares already cultivated and fully developed by petitioner and providing that "the contract will be renewed for another four (4) years with another agreement beneficial to both parties." Simply stated, instead of the renewal being at the option of private respondent, it shall be renewed on terms acceptable to both petitioner and private respondent. Based on the agreement as modified by the aforestated handwritten agreement, private respondent proceeded with the development of the fishpond area, excluding the area of ten hectares already developed by petitioner. On September 28, 1979, the Director of Fisheries and Aquatic Resources recommended to the then Ministry of Natural Resources the conversion of Ordinary Fishpond Permit No. F-5810-X into a 25-year fishpond loan agreement which covered a reduced area of 26.7450 hectares (p. 165, Rollo). Pursuant to said recommendation, Fishpond Lease Agreement No. 3090 was issued to petitioner on October 8, 1979. On March 20, 1980, private respondent waived his rights, interest, and participation over the fishpond area in favor of one Edgar J. Chu. On March 28, 1980, apparently to oppose the issuance of the 25-year fishpond lease agreement in favor of petitioner, private respondent informed the Bureau of Fisheries and Aquatic Resources in writing of his financing/development contract with petitioner and that the fishpond was almost fully developed at his expense (Ibid.). Parenthetically, sometime that year, private respondent submitted to petitioner an accounting of the income or proceeds of the fishpond as well as his expenditures in the development thereof (tsn, July 5, 1983, pp. 10-14). This document, marked as Exhibit "D" and dated February 19, 1975, showed earnings of the fishpond in the amount of P98,106.35, expenses and advances in the sum of P87,405.25, and cash on hand of P10,701.10. The original copy thereof was filed with the Bureau of Fisheries and Development as evidenced by the stamp of the office thereon. On July 17, 1981, petitioner filed a complaint against private respondent and Edgar J. Chu with the regional trial court docketed as Civil Case No. 2085 for recovery of possession and damages, wherein he alleged that on February 19, 1975, private respondent had already recovered his investment in full; that as of said date, the total earnings had amounted to P98,106.35 leaving an excess of P10,701.10 to be divided between petitioner and private respondent at 35-65 sharing; that the 4-year period during which petitioner and private respondent would share the net harvest commenced on February 19, 1975 and expired on February 18, 1979; that after February 18, 1975, private respondent

has not accounted for the income of the fishpond and has failed and refused, in gross and evident bad faith despite renewed and repeated demands, to deliver petitioner's share of the net harvest for four years which totaled P250,000.00 more or less. Meanwhile, during the pendency of the aforesaid Civil Case No. 2085 with the trial court, an order was issued by then Minister of Agriculture and Food Salvador H. Escudero III, on January 28, 1985 cancelling Fishpond Lease Agreement No. 3090 and forfeiting the improvements thereon in favor of the government. Later, said order was reconsidered to the extent that private respondent was given priority to apply for the area and that his improvements thereon were not considered forfeited in favor of the government. Petitioner elevated the matter to the Office of the President but his appeal was dismissed in a decision rendered on July 31, 1989. On June 19, 1989, the trial court rendered its decision in Civil Case No. 2085, the dispositive portion of which reads as follows: WHEREFORE, IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered in favor of the plaintiff and against the defendants: 1. Ordering defendants jointly to restore possession and control of the fishpond area in question to the plaintiff; 2. Declaring the Waiver of All Rights, Interests and Participations Over a Fishpond Area (Part) (Exhibit "E") executed by defendant Nepomuceno in favor of defendant Edgar Chu as null and void; 3. Ordering defendant Simeon Nepomuceno to pay the share of plaintiff in the amount of P168,000.00 covering the period of four years from February 19, 1975 to February 19, 1979, with only eight (8) hectares considered to be productive; 4. Ordering defendants to jointly pay plaintiff the rentals of the fishpond area in question at the reasonable rate of P25,000.00 per annum reckoned from February 19, 1979 up to the time the same fishpond area shall have been duly restored to the possession of the plaintiff; 5. Ordering defendants jointly and severally pay plaintiff the sum of P100,000.00 as attorney's fees; and 6. To pay the costs. IT IS SO ORDERED.; (pp. 24-25, Rollo.) Private respondent and Edgar J. Chu both appealed the trial court's decision. However, for failure to file brief, Chu's appeal was dismissed. For his part, private respondent maintained that: (a) the trial court erred in ruling that private respondent has fully recovered his financial investment in the fishpond area in question as of February 19, 1975 (hence the sharing of the net harvest should not commence on said date); (b) the trial court erred in ruling that private respondent cannot waive his right to finance the development of the fishpond area; and (c) the trial court committed grave error and injustice in not dismissing petitioner's complaint and in ordering respondent to pay petitioner the amounts of P168,000.00 as petitioner's share covering the period beginning February 19, 1975 to February 19, 1979, P25,000.00 per annum constituting reasonable rentals from February 19, 1979 up to the time the fishpond area shall have been restored to petitioner, as well as P100,000.00 as attorney's fees. As mentioned earlier, the Court of Appeals affirmed the trial court's decision as regards petitioner's share in the produce from February 19, 1975 to February 19, 1979 (P168,000.00), the reasonable rental of the fishpond area (P25,000.00 per annum) from February 20, 1979 to March 20, 1980 and from March 21, 1980 to January 2, 1986, as well as attorney's fees (P100,000.00), and costs. The petition before us hinges on the argument that the Court of Appeals entertained evidence and/or other matters not duly covered or taken up in the trial of Civil Case No. 2085. Petitioner posits that the appellate court committed grave abuse of discretion in doing so and in applying said matters in its disposition of the case. Verily,

petitioner's grumble and protest is confined to that portion of the June 19, 1989 decision of the Court of Appeals directing "defendants jointly to restore possession and control of the fishpond area to the plaintiff." Petitioner points out that the July 31, 1989 decision rendered by the Office of the President through Deputy Executive Secretary Magdangal B. Elma is a new matter which should not have been treated by the appellate court with legal force and effect because "it was merely incidental to the propriety or impropriety of the issuance of a writ of preliminary mandatory injunction respecting the earlier Writ of Execution granted by the trial court in favor of Calixto Saado" (p. 19, Rollo). In this light, petitioner mentions that on December 11, 1990, during the pendency of the appeal of Civil Case No. 2085, he filed with the appellate court a motion for execution pending appeal, stating that the appeal of Edgar J. Chu (who was said to be the actual possessor of the area) had been dismissed. The appellate court denied the same. On May 21, 1991, petitioner filed another motion for issuance of writ of execution, claiming that the Sheriffs Return of Service dated June 6, 1991 stated that "the restoration to and/or placement of plaintiff Saado thereof on said fishpond area in controversy x x x, are hereby considered complied with." Thereafter, private respondent filed a petition for relief from judgment and or execution which resulted in an order dated June 7, 1991 restoring possession of the fishpond area to him. Petitioner then proceeds to mention that on June 11, 1991, private respondent filed with the appellate court an "Ex-Parte Urgent Motion for Issuance of Writ of Preliminary Mandatory Injunction", alleging that the trial court has not yet issued the corresponding writ of preliminary mandatory injunction to restore private respondent to the possession of the subject fishpond area. Petitioner stresses that it was at this particular stage of the proceedings that the subject July 31, 1989 Malacaang decision was initially mentioned by private respondent who thereby argued that the trial court failed to consider that prior to the issuance of the writ of execution, the restoration of the subject fishpond to herein petitioner would in effect destroy the essence of said Malacaang decision which affirmed the cancellation of the Fishpond Lease Agreement No. 3050. In consequence thereof, the appellate court issued a resolution dated June 14, 1991 ordering that anyone who had anything to do with the enforcement of the writ of execution issued by the trial court was restrained temporarily from enforcing said writ, such that private respondent, who was acknowledged to be in possession of the subject property consisting of five ponds at the time of the issuance of the aforesaid writs; should remain in the possession thereof until further notice by the court. Later, the trial court itself ordered the immediate restoration of possession of the subject fishpond area to herein private respondent. An exchange of pleadings followed where, as an attachment to his comment, private respondent presented a photostat copy of the subject July 31,1989 decision of the Office of the President. Setting aside the factual ramifications of the instant case, we find that the only issue thereof refers to the legal effect and evidentiary weight of the July 19, 1989 decision rendered by the Office of the President in relation to Civil Case No. 2085 and CA-G.R. CV No. 23165. Let us first examine the premise and basis of the aforesaid July 31, 1989 decision of the Office of the President. A perusal thereof reveals that it resolved the appeal filed by petitioner and the Samahang Kabuhayan ng Barangay Monching from the order of the then Minister of Agriculture and Food, dated January 28, 1985 which cancelled the Fishpond Lease Agreement No. 3090 issued to petitioner and forfeited in favor of the government the improvements thereof, including the bond, and ruled that the area with the improvements shall be disposed of in accordance with Presidential Decree No.704 (Revising and Consolidating All Laws and Decrees Affecting Fishing and Fisheries) to any qualified applicant pursuant to applicable rules and regulations thereon. Said cancellation was premised on the following factors: (1) violation by petitioner of the terms of the fishpond lease agreement and of Fisheries Administrative Order (FAO) 125 (s. 1979) when he transferred/subleased his leasehold rights without government approval; and (2) failure of petitioner to comply with the development requirements. In the subject July 31, 1989 decision, the Office of the President, through then Deputy Executive Secretary Magdangal B. Elma, upholding the January 28, 1985 Escudero Order, dismissed petitioner's appeal and affirmed the cancellation of the subject Fishpond Lease Agreement No. 3090 on the following grounds: (1) Section 5(k) of Fisheries Administrative Order (FAO) No. 125 prohibits the awardee of a fishpond lease agreement from transferring or subletting the fishpond granted to him without the previous consent or approval of the ministry concerned, and similarly, the lessee shall not sublet or enter into a sub-lease contract over the area or portion covered by the fishpond lease agreement; (2) the Saado-Nepomuceno contract is not the only instance when petitioner transferred/subleased his rights over the fishpond area without approval of the appropriate ministry head since on January 6, 1972, he transferred 20 hectares of the original 50-hectare fishpond area to his brother and uncle, and on September 12, 1982, he transferred his rights over the 26.7450 area to the Samahang Kabuhayan ng Barangay Monching Association which later assigned its leasehold rights in favor of the Development Bank of the Philippines in consideration of the amount of P653,153.46; and (3) petitioner's failure to develop forty percent of the area within three years and to completely develop the remaining portions within five years, both to commence from the date of the issuance of the lease agreement in accordance with the terms and conditions of the lease agreement (out of the whole area occupied by petitioner, only four hectares more or less, corresponding to 60% to 70% was developed). The appellate court thus held that all these violations are recognized grounds for the termination and cancellation of a fishpond lease agreement under Section 9 of the FAO No. 125, series of 1979. As a last note, the subject decision stated that it mainly deals with the validity of the cancellation by the Ministry of Agriculture and Food of petitioner's Fishpond Lease

Agreement No. 3090 for violation of the terms thereof and/or fisheries rules, and that a decision in Civil Case No. 2085 which is a possessory action has hardly any bearing in the resolution of the aforestated appeal. True, the subject July 31, 1989 decision was rendered a few days after the trial court handed down its decision ordering herein petitioner to be restored to the possession of the subject fishpond area. However, such fact is of no moment considering that said decision of the trial court did not attain finality and was seasonably appealed. In other words, the July 31, 1989 decision was rendered while Civil Case No. 2085 was pending appeal. It is thus proper to consider the same a supervening event the existence of which cannot just be disregarded by the appellate court. What is the nature of the July 31, 1989 Malacaang decision and what is its effect on the resolution of Civil Case No. 2085? The action of an administrative agency in granting or denying, or in suspending or revoking, a license, permit, franchise, or certificate of public convenience and necessity is administrative or quasi-judicial. The act is not purely administrative but quasi-judicial or adjudicatory since it is dependent upon the ascertainment of facts by the administrative agency, upon which a decision is to be made and rights and liabilities determined (De Leon, Administrative Law: Text and Cases, 1993 ed., pp. 143-144). As such, the July 31, 1989 decision of the Office of the President is explicitly an official act of and an exercise of quasi-judicial power by the Executive Department headed by the highest officer of the land. It thus squarely falls under matters relative to the executive department which courts are mandatorily tasked to take judicial notice of under Section 1, Rule 129 of the Rules of Court. Judicial notice must be taken of the organization of the Executive Department, its principal officers, elected or appointed, such as the President, his powers and duties (Francisco,Evidence [Rules 128-134], 1996 ed., p. 24, citing Canal Zone vs. Mena, 2 Canal Zone 170). The rendition of the subject July 31, 1989 Malacaang decision is premised on the essential function of the executive department - which is to enforce the law. In this instance, what is being enforced is Presidential Decree No. 704 which consolidated and revised all laws and decrees affecting fishing and fisheries. Such enforcement must be true to the policy behind such laws which is "to accelerate and promote the integrated development of the fishery industry and to keep the fishery resources of the country in optimum productive condition through proper conservation and protection" (Section 2, P.D. No. 704). Further, the issue of whether or not petitioner is still entitled to possession of the subject fishpond area is underpinned by an ascertainment of facts. And such task belongs to the administrative body which has jurisdiction over the matter - the Ministry of Agriculture and Food. The policy of the courts as regards such factual findings is not to interfere with actions of the executive branch on administrative matters addressed to the sound discretion of government agencies. This policy is specially applicable in the grant of licenses, permits, and leases, or the approval, rejection, or revocation of applications therefor (Manuel vs. Villena, 37 SCRA 745 [1971]). Such respect is based on the time-honored doctrine of separation of powers and on the fact that these bodies are considered co-equal and coordinate rank as courts. The only exception is when there is a clear showing of capricious and whimsical exercise of judgment or grave abuse of discretion, which we find absent in the case at bar. The reasons given by the Office of the President in dismissing petitioner's appeal are quite clear. Transferring or subletting the fishpond granted to a licensee without the consent or approval of the administrative body concerned, as well as the failure to develop the area required by the fisheries rules, are definitely solid and logical grounds for the cancellation of one's license. Withal, if petitioner disagrees with the decision of the Office of the President, he should have elevated the matter by petition for review before the Court of Appeals for the latter's exercise of judicial review. Nowhere in the record do we find such action on petitioner's part. Understandably, to restore petitioner to the possession of the fishpond area is to totally disregard the July 31, 1989 decision of the Office of the President which can hardly be described as an unrelated matter, considering its patent implications in the result of both Civil Case No. 2085 and CA-G.R. CV No. 23165. For how could the appellate court award possession to the very same party whose license has been cancelled by the executive or administrative officer tasked to exercise licensing power as regards the development of fishpond areas, and which cancellation has been sustained by the Office of the President? Petitioner must remember the essence of the grant of a license. It is not a vested right given by the government but a privilege with corresponding obligations and is subject to governmental regulation. Hence, to allow petitioner to possess the subject area is to run counter to the execution and enforcement of the July 31, 1989 decision whi ch would easily lose its teeth or force if petitioner were restored in possession. In addition, as pointed out in the July 31, 1989 decision, petitioner is not assailing the May 14, 1985 order of Minister Escudero which gave private respondent priority in applying for the subject area and which considered respondent's improvements thereon as not forfeited in favor of the government. In this regard, the July 31, 1989 decision stated: The Escudero Order of May 14, 1985 stands unchallenged. As such, the herein appeal of Saado, et al., from the Escudero Order of January 25, 1985 remains the only obstacle, on the administrative level, to the said May 14, 1985 Order being considered in force and effect. Accordingly, the Court of Appeals correctly held --

(p. 50, Rollo.)

. . . The issue (on waiver of rights and interests and participation by respondent) is rendered moot and academic by the order of then MAF Minister Salvador H. Escudero III cancelling Fishpond Lease Agreement No. 3090 of plaintiff-appellee which was affirmed on appeal by the Office of the President. The lease agreement having been cancelled, possession of the fishpond area covered by the lease agreement cannot be returned to plaintiff-appellee even if the waiver of rights, interests, and participation is held null and void . . . (p. 31, Rollo.) In addition, petitioner considers the July 31, 1989 decision a foreign matter which was not raised in the court below and hence should not have been treated by the Court of Appeals with legal force and effect. To reiterate, petitioner also notes that the decision of the Office of the President is dated July 31, 1989, whereas the decision of Civil Case No. 2085 was rendered June 19, 1989. Further, petitioner argues that the subject decision of the Office of the President was merely incidental to the propriety or impropriety of the issuance of a writ of preliminary mandatory injunction to restore private respondent to the possession of the fishpond area after a writ of execution was issued by the trial court in favor of petitioner. Rules of fair play, justice, and due process dictate that parties cannot raise for the first time on appeal issues which they could have raised but never did during the trial (Reburiano vs. Court of Appeals, 301 SCRA 342 [1999]). Significantly, private respondent could have not been expected to present the July 31, 1989 decision during the trial because it was obviously not yet extant during that time. But one thing is for sure, petitioner knew that there was a pending administrative case (O.P. Case No. 2958) on the subject fishpond area. He knew about the appeal since he was precisely the one who filed it, challenging the January 28, 1985 order of then Minister Escudero which cancelled Fishpond Lease Agreement No. 3090. Hence, the presentation of the July 31, 1989 decision before the appellate court had caused no undue surprise upon petitioner who, we repeat, was the one who filed the appeal. Verily, the trial court's decision of July 19, 1989 did not attain finality. It was appealed within the reglementary period. If the court could modify or alter a judgment even after the same has become executory whenever circumstances transpire rendering its decision unjust and inequitable, as where certain facts and circumstances justifying or requiring such modification or alteration transpired after the judgment has become final and executory (David vs. Court of Appeals, 316 SCRA 710 [1999]) and when it becomes imperative in the higher interest of justice or when supervening events warrant it (People vs. Gallo, 315 SCRA 461 [1999]), what more if the judgment has not yet attained finality? It is thus plain in the case at bar that the July 31, 1989 decision of the Office of the President is a substantial supervening event which drastically changed the circumstances of the parties to the subject fishpond lease agreement. For to award possession to petitioner is futile since he has lost the fishpond license. In point is our ruling in Baluyot vs. Guiao (315 SCRA 396 [1997]) where we held that judgment is not confined to what appears on the face of the decision, but also covers those necessarily included therein or necessary thereto. For example, where the ownership of a parcel of land is decreed in the judgment, the delivery of the possession of the land should be considered included in the decision, it appearing that the defeated partys claim to the possession thereof is based on his claim of ownership. By analogy, the July 31, 1989 decision, is not confined to the validity of the cancellation by the Ministry of Agriculture and Food of petitioners Fishpond Lease Agreement No. 3090 for violation of the terms thereof and/or the fisheries rules. The right to possess the subject fishpond area is necessarily included in the decision. The cancellation or revocation of petitioners license necessarily eliminated his right to possess the same since the new licensee would then be the one to enjoy this right. WHEREFORE, the instant petition is hereby DENIED for lack of merit. The September 11, 1992 decision of the Court of Appeals in CA-G.R. CV No. 23165 is hereby AFFIRMED. SO ORDERED. Vitug, Panganiban, Gonzaga-Reyes, and Sandoval-Gutierrez, JJ., concur.

THE PEOPLE 0F THE PHILIPPINES, plaintiff-appellee, vs. ROMAN MENESES Y MARIN, accused-appellant. [G.R No. 111742. March 26, 1998] KAPUNAN, J.:

Eyewitness identification is vital evidence and, in most cases, decisive of the success or failure of the [1] prosecution. Subject of the Courts scrutiny in the instant criminal case is the credibility of a childs alleged eyewitness account on which the appellants conviction by the trial court was solely anchored. At around three oclock in the early morning of December 15, 1991, thirty-three year old Cesar Victoria was stabbed to death while sleeping by his seven-year old son Christopher in a rented makeshift room in Tondo, Manila. Appellant Roman Meneses was charged with the murder of Cesar Victoria, in an Information dated December 27, 1991, which reads: That on or about December 15, 1991, in the City of Manila, Philippines, the said accused, with evident premeditation and treachery, did then and there willfully, unlawfully and feloniously, with intent to kill, attack, assault and use personal violence upon one CESAR VICTORIA y FERNANDEZ, by then and there stabbing the latter with a fan knife (balisong) on the different parts of his body, thereby inflicting upon the said CESAR VICTORIA y FERNANDEZ mortal wounds which were the direct and immediate cause of his death immediately.[2] The prosecution presented the following witnesses: Christopher R. Victoria, SPO3 Jaime Mendoza, SPO3 Eduardo Gonzales and Medico-Legal Officer Florante Baltazar. Christopher R. Victoria testified that he witnessed the stabbing of his father. He testified that while he lived with his Kuya Odeng on Kasipagan Street, Tondo, on the night of December 14, 1991, he went to his fathers rented makeshift room to sleep after he (Christopher) was whipped by his brother. Christophers other siblings lived elsewhere in Tondo and his mother was living in Quezon. He further testified that he was awakened from sleep and saw his father being stabbed in the heart with a veinte nueve. After the assailant ran away, Christopher cried. SPO3 Jaime Mendoza, a police investigator of the Western Police District testified that on December 15, 1991, a kagawad of Barangay 123, Zone 9, Tondo, Manila called the precinct informing him that Cesar Victoria was found stabbed to death. With three policemen, Mendoza immediately went to the crime scene, arriving there at around three oclock in the morning. Mendoza described the scene as a makeshift room about three by five square meters. The room was connected by a divider with a door to a house owned by the Spouses Ard iete, the victims landlord. The policemen saw the victims bloodied body, with several stab wounds, lying on a wooden bed. Mendoza testified that when he questioned Christopher, who was then in the house, Christopher could not identify nor describe the attacker, but that the child said he could identify him because he knew his face. On redirect examination however, Mendoza said that Christopher identified the assailant as appellant. Mendoza and the policemen brought Christopher to the precinct where his statement was taken.[3] After the appellant was arrested and turned over to the investigators on December 26, 1991, Christopher was again brought to the precinct where, during a confrontation with appellant, Christopher identified appellant as the person who stabbed his father.[4] SPO3 Eduardo C. Gonzales testified that at about two oclock in the morning of December 25, 1991, he arrested appellant. The arrest was based on the report of Angelina Victoria, appellants wife, who implicated appellant in the crime. The policemen found appellant at the place pointed to by Angelina, which was a flower box at the corner of Tuazon and Mithi Streets. Frisked, appellant yielded a balisong. After announcing that they were policemen and that appellant was being arrested as the suspect in the stabbing of Cesar Victoria, Gonzales and his companions brought appellant to Police Station No. 2. Appellant was later transferred to the Homicide Section. On cross-examination, Gonzales stated that he and his companions merely invited appellant to go with them to the police station for investigation, but that at the police station, appellant verbally admitted to stabbing Cesar Victoria.[5] Medico-Legal Officer Florante P. Baltazar of the Philippine National Police Crime Laboratory conducted the autopsy on the victim. He testified in court that the cause of death of the victim, as stated in his Autopsy Report, was cardio-respiratory arrest due to shock and hemorrhage secondary to sta b wounds, and that the victim sustained five external injuries, two of which were fatal.[6] He opined that based on the direction of the stab wounds, the victim was not lying down when stabbed, but could have been standing or sitting when stabbed by the attacker who could have also been standing.[7] The lone witness for the defense was the appellant himself, Roman Meneses. He interposed the defense of denial and alibi. Appellant testified that the victim, who was his brother-in-law, and Christopher used to live with him and his wife Angelina, the victims sister, in their house at A. Tuazon Street, Tondo, Manila. On the day of the crime, appellant alleged that he was in San Isidro, Mexico, Pampanga, and had been there since the tenth or eleventh of that month, after he had a misunderstanding with Angelina.

He further testified that he was arrested on December 24, 1991, without a warrant after being implicated in the crime by his wife. He was brought to the police station where he was mauled by policemen; he never admitted though to killing Cesar Victoria, his brother-in-law. Appellant also denied that there was animosity between him and his brother-in-law. In fact, when Cesar was stabbed after he (Cesar) got out of prison, appellant even brought him to the hospital and paid for his medical [8] expenses. Appellant even sent his nephew Christopher to school. In a Decision dated July 26, 1993, the trial found appellant guilty, thus: WHEREFORE, judgment is hereby rendered convicting the accused of the crime of Murder, and he is hereby sentenced with the penalty of Reclusion Perpetua. The accused is hereby ordered to indemnify and pay the heirs of the victim Cesar Victoria the sum of P50,000.00 as [9] damages sustained by them on account of the victims death. In this appeal, appellant assigns to the trial court the following errors:

I THE TRIAL COURT ERRED IN NOT GIVING EXCULPATORY WEIGHT TO THE EVIDENCE ADDUCED BY THE DEFENSE. II THE TRIAL COURT ERRED IN CONVICTING APPELLANT OF THE CRIME CHARGED NOTWITHSTANDING THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. III ON THE ASSUMPTION THAT APPELLANT IS GUILTY, THE TRIAL COURT ERRED IN CONVICTING HIM OF MURDER INSTEAD OF HOMICIDE ONLY.[10] The issue in the instant case is credibility. The judgment of appellants conviction is anchored entirely on the testimony of the single eyewitness, Christopher Victoria, who identified appellant as the one who he allegedly saw stab his father. We find that the trustworthiness of the identification of appellant by Christopher is dubious, raising reasonable doubt in the mind of the Court as to appellants culpability. It was established that the crime took place in the wee hours of the morning, before the crack of dawn, at around three oclock.[11] The court can take judicial notice of the laws of nature,[12] such as in the instant case, that at around three in the morning during the Christmas season, it is still quite dark and that daylight comes rather late in this time of year.[13] Nowhere in the description of the crime scene by witness SPO3 Mendoza in his testimony was it established that there was light or illumination of any sort by which Christopher could see the attacker. SPO3 Mendoza testified thus: Q - You said you found the body of the victim, what (sic) did you found (sic) at the body of the victim? A - We found the body of the victim on adjacent makeshift of the No. 1324. Q - The makeshift room which was adjacent to the house, whose house of that makeshift was adjacent? A - It was owned by Cesar Victoria and his son Christopher.

Q - You said you interviewed a couple named Ardiete, where did you see this couple? A - Inside the house, sir. Q - How far is that house to the house of the victim? A - Only a division within that house, only division separate. COURT: Q - You said that the makeshift was adjacent to the house, does the Court understand from you that the makeshift was attach to the house? A - Part of the house, Your Honor.

Q - What did he tell you? A - He told me he can remember the suspect whenever he sees him again. Q - Then he can identify him? A - Yes, Your Honor. ATTY. SARMIENTO: Q - So at the time that you were there, the son of the victim was not able to tell you who the suspect was? A - Yes, sir. xxx

Q - Is there an opening on it? A - Yes, Your Honor. Q - How wide? A - The main door going to the house. Q - Did you come to know, what that makeshift was for? A - It was occupied intended for the victim Cesar Victoria and his son, they actually rented the space. Q - So the place where you found the victim is a place which can be used for living purposes? A - Yes, sir. Q - How did you come to that conclusion? A - Because that portion, there was a door, there was a door before you can get inside. FISCAL SULLA: Q - How big is that room more or less? A - More or less about three meters or five meters. Q - Now who occupied the room adjacent to the room occupied by the victim? A - The spouses Ardiete, sir.[14] The crime took place in a makeshift room measuring about three by five square meters. While the room had a door, there was no mention of a window which could have allowed entry of some kind of light from the outside. It is highly improbable that a young boy, just roused from sleep and his eyes adjusting to the unlit room, could identify the attacker, much less identify the knife used, as Christopher did, as a veinte nueve. The prosecution failed to paint a crystal-clear picture of the environ by which Christopher could have made an accurate and reliable identification of the attacker. Christophers testimony being improbable, is not credible. Evidence is credible when it is such as the common experience of mankind can approve as probable under the circumstances. We have no test of the truth of human testimony, except its conformity to our knowledge, [15] observation, and experience. We now consider the identification itself. We note a glaring discrepancy, not inconsequential, in the testimony of SPO3 Mendoza regarding Christophers identification of appellant. SPO3 Mendoza testified thus: Q - Where was the son of the victim when you arrived? A - Inside the house, sir. COURT: QDid you talked (sic) to the son of the victim? Q - Neither the wife nor the husband [referring to the spouses Ardiete, nor the son tell you that they saw the killing? A - The son of the victim said that he can identified (sic) the suspect. Q - Did you asked (sic) him if he can identify? A - Yes, sir. Q - And what did he tell you? A - He knows the face of the suspect. Q - Did you ask him the name of the suspect, if he knows him at that time? A - He cant tell the name. Q - Did he tell you the description of the suspect? A - He cant tell the description of the suspect but he insist (sic) that if he can see him again, he can identify.[16] During his direct and cross-examination, SPO3 Mendoza asserted that Christopher could not name his fathers attacker nor give a description; however, in his re-direct examination he said that Christopher mentioned categorically appellants name, Roman Meneses, thus: Q - When you responded to the scene of the crime, and talking to Christopher Victoria who can identify the suspect, did you asked [sic] him why he can identify the suspect? A - Yes, sir. Q - What did he say? A - He remember [sic] the face. Q - And did you ask him why he can remember the face? A - Yes, sir. Because he openly sees the face, sice (sic) he was his uncle. Q - Did you asked [sic] the son what is the name of his uncle? A - Yes, sir. xxx. Q - What is the name? A - Roman Meneses.[17] This inconsistency in the testimony of SPO3 Mendoza not only tolls on his credibility as well as the credibility of his testimony, but more significantly, casts doubt on the trustworthiness, veracity and reliability of the alleged identification itself. Significantly, this inconsistency was noted by the trial court with vexation, but the Court merely

A - Yes, sir.

glossed over the same, stating that the identification of appellant by Christopher during the subsequent confrontation rendered such inconsistency unimportant. Even in the Advance Information prepared by SPO3 Mendoza on December 15, 1991, no mention was made regarding an identification made by Christopher when questioned immediately after the crime. Mendoza wrote: CHRISTOPHER VICTORIA, 8 years old, son of victim, who was sleeping beside the latter during the commission of the crime when interviewed stated that he was awakened while his father was being stabbed by suspect, whom he claimed he can identify if he can see him again. Case to be further investigated and follow-up to determine the motive behind the knife-slaying and efforts will be exerted to establish the identity of suspect.[19] Indeed, it taxes the credibility of Christophers testimony that while he knew appellant prior to the crime, being his uncle, who for some time he was staying with, he failed to point to appellant as the attacker when questioned by [20] the police immediately after the incident. Wall in his work on eyewitness identification expound on the danger signals which a trial court judge and the appellate courts should watch out for when considering identifications in criminal cases, thus: When a person has been the victim of a crime committed by a friend, acquaintance, relative, or other person previously familiar to him, and decides to make a complaint to the police, it is to be expected that he would immediately inform them of the name (or it that be unknown, then at least the identity) of the person whom they should arrest. The victim would normally tell the police that he had been hit by John Smith, or that her purse had been snatched by the grocers delivery boy. Of course, some crimes are never reported, for one reason or another. But once the victim decides to make a criminal complaint, then he will almost invariably name or designate the perpetrator of the crime immediately, if he is able to do so. The occasional failure of a complainant to do this is a danger signal of which the courts have sometimes taken note. In an Idaho prosecution for rape, for example, the complaining witness identified the defendant at the trial, but had not accused him when making her original complaint to the police, even though he was previously known to her. As an explanation, she testified that she had not recognized him during the commission of the crime. The ensuing conviction was reversed on the ground that he evidence of identification was insufficient. In an Iowa prosecution for assault with intent to commit rape, the complainant was a young married woman who had known the defendant prior to the commission of the alleged crime. She identified him at the trial, but admitted that she had not recognized him during the assault, for he had a veil covering his face. It was after he left, she testified that it came to her mind that he assault, and on the same day, she became afraid to stay alone at home while waiting for her husband to return, and asked none other than the defendant to wait with her a course of action which was commented upon by the appellate court which reversed the conviction on grounds which included the insufficiency of the evidence of identification. In a New York murder prosecution, the victims widow identified the defendant prior to her husbands killers. Although she knew the defendant prior to her husbands death, she admitted that she had not named him to the police on the night of the crime, and admitted also that she had told the coroner that she had never before seen her husbands murderers. A conviction for murder in the first degree was reversed because the trial judge had failed to charge the jury that they should consider those facts in determining the accuracy of the identification. And in a recent New York robbery prosecution, it was brought out that the two women who had identified the defendant at the trial had not immediately named him to the police, even though they had known him previously, since he was the son of an acquaintance of one of them. The conviction was reversed on appeal, the court stating, with respect to the identifying witnesses, that: If we give credence to their testimony, it appears that they were able to and did observe fully the fact and general appearance of one of the three alleged robbers who was identified by them 17 months later as the defendant . Certainly, if, at the time of the incident, they had recognized the particular individual as one whom they knew or as resembling one with whom they were acquainted, it is reasonable to expect that they would have given this information promptly to the police. On the state of this record, there was no plausible explanation for the failure of the two women, or one of them, to recognized the defendant at the time of the robbery or, in any event, to pass along to the police within a reasonable time information which would have led them to identify the defendant as one of the robbers. We realize. That the issue is one of credibility and that, generally speaking, such issued is for the trier of the facts. Here, however, on the whole record, we have concluded that the finding of the jury as to the guilt of the
[18]

defendant is contrary to the weight of the evidence; and that, in any event, a new trial should be had in the interests of justice. These four cases should suffice to illustrate how the courts react to this danger signal on the rather rare occasions when it is in the record before them. Those occasions are rare, it is submitted, because when the point actually arises in a case, it usually produces that reasonable doubt which causes a jury to acquit. It may also be of some significance that when a jury convicts despite such a glaring weakness in the identification, it is usually in the type of case that stirs up the greatest emotions sex crimes and crimes of violence. Common sense, however, dictates that when this danger signal is present in a case, and the failure of the witness or complainant to do what would normally be done, i.e., to name or designate the perpetrator of the crime immediately, is not satisfactorily explained, no conviction should occur or should be allowed to stand in the absence of independent and persuasive evidence of the defendants guilt. The prosecution did not endeavor to explain Christophers failure to name the attacker at the time he was questioned immediately after the crime. From SPO3 Mendozas testimony, Christopher was at that time coherent and answering clearly questions from the police. We further find objectionable Christophers identification of appellant during a show-up at the police station. As testified to by SPO3 Mendoza, I made confrontation between them, referring to Christopher and appellant SPO3. Mendoza testified on the circumstances surrounding the confrontation between Christopher and appellant, thus: Q - Who was able to arrest the suspect? A - PO Eddie Gonzales sir. Q - And what did you do when you informed about this? A - I invited again the eye witness, the son of the victim. Q - And what did you do when you invited the eye witness? A - We make confrontation between the suspect and him. Q - Where? A - Inside the room sir. Q - When was that? A - Right after the suspect was arrested. Q - When was he arrested? A - December 25, 1991 xxx Q - And then in the confrontation between the suspect and the eye witness, what happened? A - The eye witness positively identified the suspect as the one who stabbed the victim. COURT: Who identified? A - The eye witness Your Honor. xxx FISCAL SULLA: Q - Exactly, where was the suspect when he was identified by the witness? A - Inside the office. Q - In what particular place inside your office?

A - Crime against person, homicide. xxx

[21]

A - I let the son of the victim to go (sic) nearer the detention cell. COURT: Did you tell something, did you asked (sic) did you tell anything to the son before the confrontation? A - Yes, sir. COURT: What did the son told (sic) you? A - He told me he can. Q - And after he told you he can, what did you do? A - I made confrontation between them. COURT: And during the confrontation, what did the son tell you? A - He is Roman Meneses. COURT: Did you asked (sic) him where did he saw (sic) the person pointed to? A - Yes, he told me that he saw him in the room they rented at Alinia.[24] In Tuason v. Court of Appeals,[25] the Court stated that an identification of the accused during a show-up or where the suspect alone is brought face to face with the witness for identification,[26] is seriously flawed. We stated thus: x x x the mode of identification other than an identification parade is a show-up, the presentation of a single suspect to a witness for purposes of identification. Together with its aggravated forms, it constitutes the most grossly suggestive identification procedure now or ever used by the police (See Louisell, David W., Kaplan, John, and Waltz, Jon R., Cases and Materials on Evidence; Wall, Eyewitness Identification in Criminal Cases, 1968 ed., p. 1263) In the Tuason case, during a first encounter in the National Bureau of Investigation (NBI) headquarters, the accused therein was pointed to by the alleged eyewitnesses after an NBI agent first pointed him out to them. The Court said that [the eyewitnesses] identification of [petitioner] from a [subsequent] li ne-up at the NBI was not spontaneous and independent. An NBI agent improperly suggested to them petitioners person.[27] From Mendozas testimony we can gather that appellant was presented as the suspect in the crime to Christopher inside Mendozas office in the Homicide Section of the police station, or later in the detention cell the boy was made to approach. While Mendoza did not literally point to appellant as in the Tuason case, equally pervasive in the confrontation in the instant case is what Wigmore calls the suggestion of guilty identity.[28] Even applying the totality of circumstances test set in People v. Teehankee, Jr,[29] formulated and used by courts in resolving the admissibility and reliability of out-of-court identifications, we must hold the identification of appellant by Christopher to be seriously flawed. The test lists three factors to consider: x x x (1) the witness opportunity to view the criminal at the time of the crime; (2) the witness degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and, (6) the suggestiveness of the identification process. (See Neil v. Biggers, 409 US 188 (1973); Manson v. Brathwaite, 432 US 98 (1977); Del Carmen, Criminal Procedure, Law and Practice, 3rd Edition., p. 346) Indeed, we cannot discount the angle that young Christopher was influenced by prior prompting or manipulation by an adult, his aunt Angelina. Rather than reinforce the identification, the circumstances pointed out by the trial court plants in mind the plausibility that appellants wife Angelina could h ave coached the young impressionable Christopher. These circumstances are:

Q - So, when the accused was arrested and you were informed about it, what did you do? A - I investigated again, after I made a confrontation between the son of the victim and the suspect. Q - Son of the victim alone? A - Together with Angelina? xxx Q - So the suspect was turn-over (sic) over to you? A - Yes, sir. Q - When was that? A - Day after December 25, 1992. Q - And when the suspect was turned-over to your office, who were there? A - The night shift in charge. Q - How about the son of the victim, were (sic) he there? A - I just saw him (there) when I arrive (sic). Q - What happened when they arrived. A - I took immediately the statement of the son of the victim. Q - Did you point them the suspect? A - No, sir. Q - Was there confrontation between the suspect and the son together with Angelina? A - Yes, sir. Q - What happened during the confrontation? A - He pin-pointed the suspect. Q - Who pin-pointed the suspect? A - The son of the victim. Q - How about Angelina? A - She did not.[23] xxx. Q - And from that time how long did it take? When they arrive (sic), how long (did) this Christopher Victoria identify the suspect? A - Immediately during my investigation I made a confrontation with the suspect and the victim, and he pinpointed to me that the suspect was really the one. Q - You said that the suspect was inside the jail, when you made the investigation in your office, how far is your office to the detention cell? A - About three meters. Q - When did the confrontation exactly took (sic) place?
[22]

First, was the insistence of [appellants] wife as testified by the accused himself, that he was the one who killed the victim, and was pointed to by her as the assailant, thus, he was arrested. Another was the resentment of the accused against his brother-in-law-victim brought about by the latters intervention in that serious quarrel between him and his wife. Thirdly, that the accused no doubt disliked the financial support and subsistence being given by his wife to the victim. Quite revealingly, Angelina was the one who went to the police to implicate appellant in the crime and who directed the police to where he could be found. She later herded Christopher to the police station for the boy to give his statement. She was also with the boy when he was made to identify appellant during the confrontation. We see Angelinas actuations as suspect, especially when we consider that per SPO3 Mendozas testimony, when he questioned Christopher immediately after the crime, the boy could not simply name the attacker. And while the above circumstances, particularly, the supposed resentment of appellant against the victim, who was his wife Angelinas brother, and envy proceeding from Angelinas giving financial support to the victim may [30] constitute motive, motive alone, without credible positive identification, cannot be a basis for conviction. The People points out that appellant had verbally admitted having committed the crime at the time of his arrest [31] and later during the conduct of the investigation. The appellant however during the trial denied having made such verbal admissions of guilt. Granting arguendo that appellant indeed made such verbal admissions, the same would not be admissible in evidence against him because the constitutional preconditions for its admission were not complied with. The mere assertion by a police office that after an accused was informed of his constitutional right to remain silent and to counsel he readily admitted his guilt, does not make the supposed confession admissible against [32] the purported confessant. Here, it was not even shown that appellants supposed admissions of guilt were made [33] with benefit of counsel. It is conceded that appellants defense of alibi is weak. The settled rule however is that conviction should rest on the strength of the prosecution and not on the weakness of the defense.[35] The onus is on the prosecution to prove the accused guilty beyond reasonable doubt, in view of the constitutional presumption of the innocence of the accused.[36] We must rule that the prosecution failed to so discharge its burden. WHEREFORE, in view of the foregoing, the Decision dated July 26, 1993 of the Regional Trial Court of Manila, National Capital Judicial Region, Branch 34 in Criminal Case No. 91-101878 convicting appellant ROMAN MENESES y MARIN is REVERSED and appellant is ACQUITTED of the crime charged on the ground of reasonable doubt. The Court orders his RELEASE from commitment unless he is held for some other legal cause or ground. Costs de oficio. SO ORDERED. Narvasa, C.J., (Chairman), Romero, and Purisima, JJ., concur.
[34]

But even if technicality were set aside, just the same the petition fails. Petitioners filed a petition for certiorari before the Court of Appeals on June 7, 2000 or allegedly on the 60th day from their receipt of the March 23, 2000 Order of Branch 44 of the Manila Regional Trial Court denying their motion for Reconsideration of said courts Order dismissing, on motion of private respondent, their complaint. The Court of Appeals, by Resolution of June 20, 2000, dismissed petitioners petition for certiorari, however, for being filed out of time, it holding that: Per records, it appears that petitioners had only until May 29, 2000 within which to file the Petition for Certiorari considering the following: 1. Petitioners received a copy of the October 20, 1999 Order denying their [counsels] Notice of Withdrawal [and likewise denying petitioners Motion for Reconsideration of the Order dismissing their complaint] on November 8, 1999; 2. Petitioners filed a motion for reconsideration of the October 20, 1999 Order on November 17, 1999; and that 3. Petitioners received a copy of the March 23, 2000 Order denying their motion for reconsideration on April 8, 2000. The instant petition was filed on June 7, 2000 or nine (9) days late. Thus, for being belatedly filed, the instant petition is hereby DISMISSED. Petitioners thereupon filed (on July 10, 2000) a motion for reconsideration2 of the above-said June 20, 2000 Order of the appellate court. In the meantime, this Court issued in A.M. No. 00-2-03-SC (Reglamentary Period to File Petitions for Certiorari and Petition for Review on Certiorari) a Resolution dated August 1, 2000 approving the amendment to the following provision of Section 4, Rule 65 of the 1997 Rules of Civil Procedure: SECTION 4. Where petition filed. The petition may be filed not later than sixty (60) days from notice of the judgment, order, resolution sought to be assailed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, and unless otherwise provided by law or these Rules, the petition shall be filed in and cognizable only by the Court of Appeals. If the petitioner had filed a motion for new trial or reconsideration after notice of said judgment, order or resolution, the period herein fixed shall be interrupted. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of such denial. No extension of time shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days . (Emphasis and underscoring supplied) The amendment to Sec. 4, Rule 65, which took effect on September 1, 2000, reads: SECTION 4. When and where petition filed. The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of the said motion.
1

G.R. No. 145169

May 13, 2004

SIENA REALTY CORPORATION, as represented by LYDIA CO HAO and LILIBETH MANLUGON, petitioner, vs. HON. LOLITA GAL-LANG, as Presiding Judge of the RTC of Manila, Branch 44; ANITA CO NG in trust for ROCKEFELLER NG; and the COURT OF APPEALS, SPECIAL 13th DIVISION, respondents. DECISION CARPIO MORALES, J.: Challenged via petition for review on certiorari under Rule 45 of the 1997 Revised Rules of Court is the September 13, 2000 Resolution of the Court of Appeals in C.A.-G.R. SP No. 59096, Siena Realty Corporation, as represented by Lydia Co Hao and Lilibeth Manlugon v. Hon. Lolita O. Gal-lang, as Presiding Judge of Br. 44 of the RTC of Manila, and Anita Co Ng in trust for Rockefeller Ng. Since the petition attributes grave abuse of discretion on the part of the Court of Appeals in the issuance of subject resolution, what should have been filed was one for certiorari under Rule 65. On this score alone, the petition must be denied due course.

The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in the aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall be filed in and cognizable only by the Court of Appeals. No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding fifteen (15) days. (Emphasis and underscoring supplied) The Court of Appeals, acting on petitioners Motion for Reconsideration of its Order of June 20, 2000, denied, by Resolution of September 13, 2000,3 said motion in this wise: xxx From the argument espoused by petitioners counsel, it appears that he overlooked the provision of second paragraph of Sec. 4, Rule 65 of the 1997 Rules of Civil Procedure as amended per Supreme Court Circular dated July 21, 1998, which provides as follows:

respondents allegation that the matter was no longer pending and undetermined, the issue of whether the petition for certiorari was timely filed was still pending reconsideration when the amendment took effect on September 1, 2000, hence, covered by the its retroactive application. The amendatory rule in their favor notwithstanding, petitioners petition fails as stated early on. The order of the trial court granting private respondents Motion to Dismiss the complaint was a final, not i nterlocutory, order and as such, it 5 was subject to appeal, not a petition for certiorari. At the time petitioners filed before the appellate court their petition for certiorari on the 60th day following their receipt of the October 20, 1999 Order of the trial court denying their Motion for Reconsideration of its dismissal order, the said October 20, 1999 Order had become final and executory after the 15th day following petitioners receipt thereof. WHEREFORE, the instant petition is, in light of the foregoing discussions, hereby DENIED. SO ORDERED.

G.R. No. 119288 August 18, 1997 "If the petitioner had filed a motion for new trial or reconsideration after notice of said judgment, order or resolution, the period herein fixed shall be interrupted. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of such denial. No extension of time shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days." Verily, the sixty (60) day period within which to file a Petition for Certiorari is not counted from the date of the receipt of the denial of Motion for Reconsideration, but from the date of the receipt of the questioned order or decision, except that such 60-day period is interrupted upon the filing of a Motion for Reconsideration. WHEREFORE, for reason above-stated, the instant motion is DENIED. Consequently, the present Petition for Certiorari is DISMISSED with finality. (Underscoring supplied) Hence, the petition at bar, petitioners challenging the September 13, 2000 Resolution of the appellant court as having been . . . ISSUED WITH GRAVE ABUSE OF DISCRETION AS IT WAS MADE WITHOUT TAKING PRIOR JUDICIAL NOTICE OF SUPREME COURT A.M. NO. 00-2 - 03 SC WHICH RESOLUTION TOOK EFFECT ON SEPTEMBER 1, 2000, AND WHICH AMENDED THE SECOND PARAGRAPH OF SECTION 4, RULE 65 OF THE 1997 RULES OF CIVIL PROCEDURE.4 (Underscoring supplied) Petitioners argument is well -taken. Section 1, Rule 129 of the Rules on Evidence reads: SECTION 1. Judicial notice, when mandatory. A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. (Emphasis and underscoring supplied) Even if petitioner did not raise or allege the amendment in their motion for reconsideration before it, the Court of Appeals should have taken mandatory judicial notice of this Courts resolution in A.M. Matter No. 00 -02-03 SC. The resolution did not have to specify that it had retroactive effect as it pertains to a procedural matter. Contrary to private REPUBLIC OF THE PHILIPPINES, represented by THE DIRECTOR OF LANDS, petitioner, vs. HON. COURT OF APPEALS and JOSEFA GACOT, respondents. RESOLUTION VITUG, J.: The Republic of the Philippines, represented by the Director of Lands, prays in the instant petition for review oncertiorari for the annulment of the decision, dated 22 February 1995, of the Court of Appeals affirming the 12th August 1993 judgment of the Regional Trial Court of Palawan (Branch 50-Puerto Princesa) which has adjudicated Lot No. 5367 in Cadastral Case No. 13, GLRO Cadastral Record No. 1133, to herein private respondent, now deceased Josefa Gacot, the claimant in the cadastral case. The antecedents are amply summarized in the appealed decision of the Court of Appeals, viz: The entire lot 5367 is being claimed by Josefa Gacot as per answer she filed on June 7, 1971. It appears from the record that the lot is located in Barangay Los Angeles, Magsaysay, Palawan but the area was not indicated. It also appeared that Ceferino Sabenacio is her co-owner. This case was set for hearing on August 9, 1990 and the petitioner was represented by Assistant Provincial Prosecutor Reynaldo Guayco and Rogelio Paglinawan, Community Environment and Natural Resources Officer (CENRO) of Puerto Princesa City while the claimant appeared without counsel. In view thereof, the hearing was reset to August 13, 1990. Before the scheduled hearing on August 13, 1990, the Court received a report from the Land Registration Authority calling the Court's attention of the decision rendered by Judge Lorenzo Garlitos on October 20, 1950 declaring this lot as property of the Republic of the Philippines. Despite this declaration however, the petitioner nor the government did not bar the claimant from filing her answer, possessing and occupying the lot and in fact accepted her tax payments and issuing her tax declaration on the same. The claimant presented herself as witness as well as her son, Vicente Dantic, Jr. The witnesses testified that Josefa Gacot was married to Vicente Dantic, Sr. in 1940 and were in actual possession of the property for more than 30 years, having bought the same from Cipriana Dantic-Llanera as per deed of sale dated April 22, 1955 in Cuyono dialect (Exhibit 1 and 1-A). Since she acquired the property from Cipriana Llanera, she continued her occupation and introduced improvements thereon as well as declared Lot 5367 for taxation purposes in her name (Exhibit 2) and paid the corresponding taxes thereon up to the present

time (Exhibit 3). That claimant is now a widow and has 5 children namely, Hernando Dantic, Antero Dantic, Felipe Dantic, Fe Dantic and Vicente Dantic, Jr. Cipriano Sabenacio, the alleged co-owner of claimant Josefa Gacot appeared in Court and manifested that he is waiving his claim over Lot 5367 in favor of Josefa Gacot who is in actual possession of the property as he is only a boundary owner. After the presentation of claimant and her son, they offered their exhibits and rested their case. Thereafter, the petitioner thru counsel manifested that it is not presenting controverting evidence and is submitting the 1 case for resolution. On 05 September 1990, the trial court rendered judgment adjudicating Lot No. 5367 to Josefa Gacot, thus WHEREFORE, this Court finds the claim of Josefa Gacot Dantic to be in order. Accordingly, Lot 5367 is hereby adjudicated to Josefa Gacot-Dantic, widow and a resident of Barangay Los Angeles, Magsaysay, Palawan with all the improvements the, eon, subject to the estate tax as provided by law. SO ORDERED.
2

In its brief, the Office of the Solicitor General claims that "records of the re-hearing show that on October 20, 1950, an order was, indeed, issued by Judge Lorenzo C. Garlitos of the Court of First Instance of Palawan, 7th Judicial District, declaring that Lot No. 5367 was among lots declared as property of the Republic of the Philippines." (p. 3, Appellant's Brief, p. 19, Rec.) It now invokes Republic Act No. 931, approved on June 30, 1953 and Republic Act No. 2061, which took effect on June 30, 1958, both laws setting the time limits for the filing of applications, among other things, for the reopening of judicial proceedings on certain lands which were declared public land. Under R.A. 2061, the time for filing an application shall not extend beyond December 31, 1968. Thus, petitioner-appellant argues that since claimant-appellee Josefa Gacot filed her answer only on 07 June 1971, the court a quo did not acquire jurisdiction over the instant claim since she did not file her answer within the period fixed by R.A. No. 2061. This would be true, if the Order dated 20 October 1950 of Judge Lorenzo Garlitos declaring Lot No. 5367 as property of the Republic of the Philippines, was presented as evidence in the rehearing of this case. Unfortunately, the Republic of the Philippines failed to offer as its exhibit the said order. There is no basis for the appellant, therefore, to invoke R.A. 2061, to support its claim that claimant-appellee Josefa Gacot filed her answer beyond the period fixed by said law and therefore the court a quo did not acquire jurisdiction over the case. Precisely, the purpose of the rehearing was to enable the Republic of the Philippines, thru the Office of the Solicitor General, to present in evidence the said order. The Solicitor General, in its Motion dated 21 May 1991, prayed that with regards to Lot No. 5367 "the proceedings therein be ordered reopened and the same be remanded to the court a quo to enable the Republic of the Philippines to present the judgment dated October 20, 1950 of Judge Lorenzo Garlitos declaring Lot No. 5367 as government property." (pp. 30-31, Rollo) [Emphasis Ours] This Court granted the motion and ordered the records of the case remanded to the court a quo for further proceedings "to enable the government to present in evidence the judgment dated October 20, 1950,declaring Lot No. 5367 as government property . . ." (p. 42, Rollo) [Emphasis Ours] During the rehearing, however, the Government failed to present the said order of Judge Garlitos in evidence. Thus, the court a quo said in its appealed decision: This case was set for hearing several times for the government to present its evidence and for the parties to submit their respective memoranda in support of their respective stand on the matter. The claimant submitted her memorandum while the government represented by the Assistant Provincial Prosecutor has not presented any witness to present the government's claim neither has he submitted any memorandum to support the government's stand on this matter." (see p. 92, Rollo) [Emphasis Ours] It is the rule that "The court shall consider no evidence which has not been formally offered." (Rule 132, Sec. 34) It is true that the Order of 20 October 1950 has been appended to the records of this case ( see p. 19, Rec.). But it is misleading on the part of the Solicitor General to state that "Records of the rehearing show that on October 20, 1950, an order was, indeed, issued by Judge Lorenzo C. Garlitos . . . ." For, during the rehearing, as reflected in the appealed decision, the government did not present any evidence nor any memorandum despite having been ordered by the court a quo. "Neither can We take judicial notice of the Order of Judge Garlitos. As a general rule, courts are not authorized to take judicial knowledge of the contents of the record of other cases, in the adjudication of cases pending before them, even though the trial judge in fact knows or remembers the contents thereof, or even when said other cases have been heard or are pending in the same court and notwithstanding the fact that both cases may have been heard or are really pending before the same judge. (Municipal Council vs. Colegio de San Jose, et al., G.R. No. L-45460; 31 C.J.S. 623-624; cited in p. 25, Evidence, Second Ed.; R.J. Francisco) Indeed, the Government missed its opportunity to have the claim of Josefa Gacot, the herein appellee, declared as a nullity, considering that no evidence was presented by it in opposition thereto. 4 In the that instant petition, the Republic, assigning a sole error, contends

The Republic, through the Solicitor General, elevated the case to the Court of Appeals. During the pendency of the appeal, the Office of the Solicitor General was able to verify that Lot 5367 was earlier declared to be the property of the Republic in a decision rendered by Judge Lorenzo Garlitos on 20 October 1950 following an order of general default. The Solicitor General thus filed a motion with the appellate court to have the case reopened and remanded to the court a quo to allow the Republic of the Philippines to present the decision of Judge Garlitos. In its resolution, dated 26 December 1991, the Court of Appeals granted the motion. What transpired thereafter was narrated by the trial court in its 12th August 1993 decision; viz: This case was set for hearing several times for the government to present its evidence and for the parties to submit their respective memorandum in support of their respective stand on the matter. The claimant submitted her memorandum while the government represented by the Assistant Provincial Prosecutor assigned to this sala has not presented any witness to support the government's claim, neither has he submitted any memorandum to support the government's stand on this matter. With the foregoing development, the Court is of the opinion that the subsequent application or claim of Josefa Gacot-Dantic on Lot 5367 which became part of the public domain where her occupation thereto having been open to the whole world, public and notorious in the concept of an owner since 38 years ago was well taken and therefore entitled to the lawful adjudication of Lot 5367 in her name. Besides, the government represented by the Assistant Provincial Prosecutor and the Community Environment and Natural Resources Officer (CENRO) for Puerto Princesa City and Cuyo, Palawan have not made any protest nor interposed any objection on the claim of Josefa Gacot during the hearings. Neither was there a manifestation of protest or claim of government use coming from the municipal officials of Magsaysay, Palawan despite notice sent to them of the cadastral hearing. And the sad part was that the government had accepted without any protest all the taxes due the property paid by the claimant religiously. This is not to say that this order has been considered in the previous decision of this Court which is hereunder quoted as follows: xxx xxx xxx With this finding of the Court, it is its considered opinion and so holds, that there is no reason to disturb its previous decision aforequoted. 3 An appeal was taken by the Republic from the decision of the trial court. In its now assailed decision of 22 February 1995, the Court of Appeals affirmed in toto the judgment of the trial court. The appellate court ratiocinated:

THE HONORABLE COURT OF APPEALS (HAS) ERRED IN RULING THAT THERE IS NO BASIS FOR PETITIONER TO INVOKE R.A. No. 2061 TO SUPPORT ITS CLAIM THAT JOSEFA GACOT FILED HER ANSWER BEYOND THE PERIOD FIXED BY THE SAID LAW AND THEREFORE THE TRIAL COURT DID NOT ACQUIRE JURISDICTION OVER THE CASE, SINCE IT (HAS) FAILED TO OFFER AS ITS 5 EXHIBIT THE ORDER, DATED OCTOBER 20, 1950 OF JUDGE LORENZO GARLITOS. The Solicitor General explains that the records of the reopened case would show that a certified copy of the decision, dated 20 October 1950, of Judge Garlitos has been appended to page 19 thereof. It is not evident, however, why the Assistant Provincial Prosecutor and the Community Environment and Natural Resources Officer ("CENRO") for Puerto Princesa, representing the government during the rehearing, did not present it. The Solicitor General, nevertheless, invokes the rule that the Republic is not estopped by the mistake or error on the part of its officials or agents. In the meantime, Josefa Gacot passed away. The Solicitor General thereupon moved that the heirs of Josefa Gacot be impleaded party respondents in substitution for the deceased. The motion was granted, and the heirs were directed to comment on the government's petition. To this day, private respondents have not submitted their comment. The Court, however, cannot allow the case to remain pending and unresolved indefinitely. It must now dispense, as it hereby dispenses, with such comment in order not to unduly delay the remand of the case to the trial court for further proceedings. Let it initially be said that, indeed, the Court realizes the points observed by the appellate court over which there 6 7 should be no quarrel. Firstly, that the rules of procedure and jurisprudence, do not sanction the grant of evidentiary 8 9 value, in ordinary trials, of evidence which is not formally offered, and secondly, that adjective law is not to be taken lightly for, without it, the enforcement of substantive law may not remain assured. The Court must add, nevertheless, that technical rules of procedure are not ends in themselves but primarily devised and designed to help in the proper and expedient dispensation of justice. In appropriate cases, therefore, the rules may have to be so construed 10 liberally as to meet and advance the cause of substantial justice. Furthermore, Section 1, Rule 129, of the Rules of Court provides: Sec. 1. Judicial notice, when mandatory. A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicialdepartments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. Mr. Justice Edgardo L. Paras 11 opined:

WHEREFORE, the case is REMANDED to the trial court for further proceedings for it to ascertain and resolve the conflicting claims of the parties conformably with the foregoing opinion of the Court. No costs. SO ORDERED.

G.R. No. 142295

May 31, 2001

VICENTE DEL ROSARIO y NICOLAS, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. PARDO, J.: Petitioner Vicente del Rosario y Nicolas appeals via certiorari from a decision of the Court of Appeals1 affirming with modification the decision of the Regional Trial Court, Bulacan, Branch 20, Malolos, and finding him guilty beyond reasonable doubt of violation of P. D. No. 1866, as amended, by Republic Act No. 8294 (illegal possession of firearms), sentencing him to four (4) years, nine (9) months and eleven (11) days of prision correccional, as minimum, to six (6) years, eight (8) months and one (1) day of prision mayor, as maximum, and to pay a fine of P30,000.00.1wphi1.nt On June 17, 1996, Assistant Provincial Prosecutor Eufracio S. Marquez of Bulacan filed with the Regional Trial Court, Bulacan, Malolos an Information charging petitioner Vicente del Rosario y Nicolas with violation of P. D. No. 1866, as follows: "That on or about the 15th day of June 1996, in the municipality of Norzagaray, Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously have in his possession under his custody and control, the following, to wit: "a) One (1) pc. Pistol Cal. 45 SN:70G23792 (w/o license) "b) One (1) pc. Revolver Cal. 22 SN:48673 (w/o license) "c) Twenty Seven (27) rds live ammos. For cal. .45

A court will take judicial notice of its own acts and records in the same case, of facts established in prior proceedings in the same case, of the authenticity of its own records of another case between the same parties, of the files of related cases in the same court, and of public records on file in the same court. In addition judicial notice will be taken of the record, pleadings or judgment of a case in another court between the same parties or involving one of the same parties, as well as of the record of another case between different parties in the same court. Judicial notice will also be taken of court personnel. 12 The remand of the case would likewise seem to be unavoidable. The area of Lot No. 5367 claimed and awarded to the late Josefa Gacot had not been specified in the records. Indeed, on the basis of the Certification of the Forest Management Services of the Department of Environment and Natural Resources, Lot No. 5367, per Land Classification (LC) No. 1246 of 15 January 1936, would appear to contain an area of 394,043 square meters, 300,000 square meters of which were classified as Alienable and Disposable land and 94,043 square meters as Timberland, which under Proclamation No. 2152, dated 29 December 1981, had been included to form part of the Mangrove Swamp Forest Reserve, closed for entry, exploitation and settlement. 13 It behooves all concerned that the above matters be carefully looked into, albeit with reasonable dispatch, for the final resolution of this case.

"d) Five (5) pcs. Magazines for cal. .45 "e) Eight (8) rds live ammunitions for cal. 22 "f) Five (5) pcs. Magazines short for cal. 5.56 (M16) "g) Twenty (20) rds live ammunitions for cal 5.56. "without first having obtained" a proper license therefor. "Contrary to law."2 On June 25, 1996, the trial court arraigned the petitioner. He pleaded not guilty.3 Trial ensued.

The facts, as found by the Court of Appeals, are as follows: "Sometime in May 1996, the police received a report that accused-appellant Vicente del Rosario was in possession of certain firearms without the necessary licenses. Acting upon the report, P/Sr. Insp. Jerito Adique of the PNP Criminal Investigation Group at Camp Olivas, Pampanga inquired from the PNP Firearms and Explosive Division "whether or not the report was true. On May 10, 1996, P/Sr. Insp. Edwin C. Roque of the PNP Firearms and Explosives Division issued a certification (Exhibit L) stating that per records in his office, the appellant is not a licensed/registered firearm holder of any kind and caliber. Armed with the said certification, P/Sr. Insp. Adique applied for a search warrant to enable his team to search the house of appellant.1wphi1.nt "On June 13, 1996, a search warrant (Exhibit A) was issued by Judge Gil Femandez, Sr. of the Regional Trial Court of Quezon City, Branch 217, authorizing the search of the residence of appellant at Barangay Tigbe, Norzagaray, Bulacan.4 On June 15, 1996, at about 7:00 o'clock in the morning, a team led by P/Sr. Insp. Adique went to Norzagaray to serve the warrant. Before proceeding to the residence of the appellant, the police officers requested Barangay Chairman Rogelio de Silva and Barangay Councilman Aurelio Panteleon to accompany them in the implementation of the warrant. Upon arrival at the house of appellant, the police officers introduced themselves to the wife of appellant. When the appellant came out, P/Sr. Insp. Adique informed him that they had a search warrant and that they were authorized to search his house. After appellant gave his permission, the police officers conducted a search of the house. The search yielded the following items: (a) a caliber .45 pistol with Serial No. 703792 with five magazines of caliber .45 (Exhibits B and H) found at the master's bedroom; (b) five magazines of 5.56 M-16 rifle and two radios (Exhibits C to C-4) found in the room of appellant's daughter; and (c) a caliber .22 revolver with Serial No. 48673 (Exhibit F) containing 8 pieces of live ammunition (Exhibit M) found in the kitchen of the house. When asked about his license to possess the firearms, the appellant failed to produce any. This prompted the police officers to seize the subject firearms. "SPO2 Marion Montezon, one of the searching officers, prepared three separate inventories of the seized items (Exhibits H, M and N). The inventories were signed by P/Sr. Insp. Adique, the appellant and the barangay officials who witnessed the search. Thereafter SPO2 Montezon prepared a certification of orderly search (Exhibit I) which was signed by the appellant and the barangay officials attesting to the orderly conduct of the search. "For his defense, appellant contends that he had a license for the caliber .45 pistol recovered in his bedroom and that the other items seized during the search including the caliber .22 revolver, were merely planted by the police officers. Appellant likewise assails the manner in which the search was carried out, claiming that the police officers just barged into his house without asking permission. Furthermore, he claimed that the barangay officials arrived only after the police already had finished the search. "After trial and on July 2, 1998, the trial court rendered a judgment of conviction, the dispositive portion of which reads: "WHEREFORE, premises considered, the Court finds the accused VICENTE DEL ROSARIO y NICOLAS guilty beyond reasonable doubt of violation of P. D. No. 1866 as charged under the Information dated June 17, 1996. "Conformably with the provisions of said law, as amended by Republic Act No. 8294, and pursuant to the provisions, of the Indeterminate Sentence Law, the Court hereby sentences the accused to suffer imprisonment of six (6) months of arresto mayor, as minimum, to six (6) years of prision correctional, as maximum, and to pay a fine of Fifteen. Thousand Pesos (P15,000.00). On July 20, 1998, petitioner appealed to the Court of Appeals, assailing the decision for being contrary to facts and the law.6 On July 9, 1999, the Court of Appeals promulgated its decision affirming with modification the decision of the trial court as set out in the opening paragraph of this decision.7

On August 10, 1999, petitioner filed with the Court of Appeals a motion for reconsideration and/or new trial. He contended that the certification issued by the Chief, Firearms and Explosives Division, Philippine National Police stating that the person named therein had not been issued a firearm license referred to a certain Vicente "Vic" del Rosario of barangay Bigte, Norzagaray, Bulacan, not to him. He comes from barangay Tigbe, Norzagaray, Bulacan, and that he has a valid firearm license. On February 22, 2000, the Court of Appeals denied the motion for reconsideration for lack of merit. Hence, this appeal.
10 9

Petitioner submits that the search conducted at his residence was illegal the search warrant was issued in violation of 11 the Constitution and consequently, the evidence seized was inadmissible. He also submits that he had a license for the .45 caliber firearm and ammunition seized in his bedroom. The other firearm, a .22 caliber revolver seized in a drawer at the kitchen of his house, a magazine for 5.56 mm. cal. Armalite rifle, and two 2-way radios found in his daughter's bedroom, were either planted by the police or illegally seized, as they were not mentioned in the search warrant. We find the petition impressed with merit. We define the issues as follows: First: whether petitioner had a license for the .45 caliber Colt pistol and ammunition seized in his bedroom; and Second: whether the .22 caliber revolver seized in a drawer at the kitchen of his house, a magazine for 5.56 mm. cal. Armalite rifle and two 2-way radios found in his daughter's bedroom, were planted by the police or were illegally seized. We shall resolve the issues in seriatim. First: The .45 cal. Colt pistol in question was duly licensed. Normally, we do not review the factual findings of the Court of Appeals and the trial courts. 12 However, this case comes within the exceptions.13 The "findings of fact by the Court of Appeals will not be disturbed by the Court unless these findings are not supported by evidence."14 In this case, the findings of the lower courts even directly contradict the evidence. Hence, we review the evidence. The trial court held that the copy of the license presented was blurred, and that in any event, the court could rely on the certification dated May 10, 1996, of P/Sr. Inspector Edwin C. Roque, Chief, Records Branch, Firearms and Explosives Division, Philippine National Police stating that Vicente "Vic" del Rosario of Barangay Bigte, Norzagaray, Bulacan is not a licensed/registered firearm holder of any kind and caliber.15 As against this, petitioner submitted that he was not the person referred to in the said certification because he is Vicente del Rosario y Nicolas from Barangay Tigbe, Norzagaray, Bulacan. The Court takes judicial notice of the existence of both barangay Tigbe and barangay Bigte, in Norzagaray, Bulacan.16 In fact, the trial court erred grievously in not taking judicial notice of the barangays within its territorial jurisdiction, believing the prosecution's submission that there was only barangay Tigbe, and that barangay Bigte in the certification was a typographical error. 17 Petitioner presented to the head of the raiding team, Police Senior Inspector Jerito A. Adique, Chief, Operations Branch, PNP Criminal Investigation Command, a valid firearm license. The court is duty bound to examine the evidence assiduously to determine the guilt or innocence of the accused. It is true that the court may rely on the certification of the Chief, Firearms and Explosives Division, PNP on the absence of a firearm license. 18 However, such certification referred to another individual and thus, cannot prevail over a valid firearm license duly issued to petitioner. In this case, petitioner presented the printed computerized copy of License No. RCL 1614021915 issued to him on July 13, 1993, expiring in January 1995, by the Chief, Firearms and Explosives Division, PNP under the signature of Reynaldo V. Velasco, Sr. Supt. (GSC) PNP, Chief, FEO.19 On the dorsal side of the printed computerized license, there is stamped the words "Validity of computerized license is extended until renewed license is printed" dated January 17, 1995, signed by Police Chief Inspector Franklin S. Alfabeto, Chief, Licence Branch, FEO.20 Coupled with this indefinite extension, petitioner paid the license fees for the extension of the license for the next two-year period.21 Consequently, we find that petitioner was the holder of a valid firearm license for the .45 caliber Colt pistol seized in the bedroom of his house on June 15, 1996.22 As required, petitioner presented the license to the head of the raiding team, Police Senior Inspector Jerito A. Adique of the Criminal Investigation Division Group, PNP.23 As a senior police officer, Senior Inspector Adique could easily determine the genuineness and authenticity of the computerized printed

license presented. He must know the computerized license printed form. The stamp is clearly visible. He could decipher the words and the signature of the authorized signing official of the Firearms and Explosives Division, PNP. He belonged to the same national police organization. Nevertheless, Senior Insp. Adique rejected the license presented because, according to him, it was expired. However, assuming that the license presented was expired during the period January 1995 to January 1997, still, possession of the firearm in question, a .45 caliber Colt pistol with serial No. 70G23792, during that period was not illegal. The firearm was kept at home, not carried outside residence. On June 15, 1996, at the time of the seizure of the firearm in question, possession of firearm with an expired license was not considered unlawful,provided that the license had not been cancelled or revoked. Republic Act No. 8294, providing that possession of a firearm with an expired 24 25 license was unlawful took effect only on July 7, 1997. It could not be given retroactive effect. According to firearm licensing regulations, the renewal of a firearm license was automatically applied for upon payment of the license fees for the renewal period. The expired license was not cancelled or revoked. It served as temporary authority to possess the firearm until the renewed license was issued. Meantime, the applicant may keep the gun at home pending renewal of the firearm license and issuance of a printed computerized license. He was not obliged to surrender the weapon. Printed at the dorsal side of the computerized license is a notice reading: "IMPORTANT 1. This firearm license is valid for two (2) years. Exhibit this license whenever demanded by proper authority. 2. Surrender your firearm/s to the nearest PNP Unit upon revocation or termination of this license. Under any of the following instances, your license shall be revoked for which reason your firearm/s is/are subject to confiscation and its/their forfeiture in favor of the government. a. Failure to notify the Chief of PNP in writing of your change of address, and/or qualification. b. Failure to renew this license by paying annual license, fees, within six (6) months from your birth month. Renewal of your license can be made within your birth month or month preceding your birth month. Late renewal shall be penalized with 50% surcharge for the first month (from the first day to the last day of this month) followed by an additional 25% surcharge for all of the succeeding five (5) months compounded monthly. c. Loss of firearm/s through negligence. d. Carrying of firearm/s outside of residence without appropriate permit and/or carrying firearm/s in prohibited places. e. Conviction by competent court for a crime involving moral turpitude or for any offense where the penalty carries an imprisonment of more than six (6) months or fine of at least Pl,000.00. f. Dismissal for cause from, the service. g. Failure to sign license, or sign ID picture or affix right thumb mark. 3. Unauthorized loan of firearm/s to another person is punishable by permanent disqualification and forfeiture of the firearm in favor of the government. 4. If termination is due to death, your next of kin should surrender your firearm/s to the nearest PNP Unit. For those within Metro, Manila, surrender should be made with FEO, Camp Crame.

5. When firearms become permanently unserviceable, they should be deposited with the nearest PNP Unit and ownership should be relinquished in writing so that firearms may be disposed of in accordance with law. 6. Application for the purchase of ammunition should be made in case of a resident of Metro Manila direct to the Chief, FEO and for residents of a Province to secure recommendation letter to the nearest PNP Provincial Command who will thereafter endorse same to CHIEF, FEO for issuance of the permit. License 26 must be presented before an authority to purchase ammo could be obtained." Indeed, as heretofore stated, petitioner duly paid the license fees for the automatic renewal of the firearm license for the next two years upon expiration of the license in January, 1995, as evidenced by official receipt No. 7615186, dated 27 January 17, 1995. The license would be renewed, as it was, because petitioner still possessed the required qualifications. Meantime, the validity of the license was extended until the renewed computerized license was printed. 28 In fact, a renewed license was issued on January 17, 1997, for the succeeding two-year period. Aside from the clearly valid and subsisting license issued to petitioner, on January 25, 1995, the Chief, Philippine National Police issued to him a permit to carry firearm outside residence valid until January 25, 1996, for the firearm in 29 question. The Chief, Philippine National Police would not issue a permit to carry firearm outside residence unless petitioner had a valid and subsisting firearm license. Although the permit to carry firearm outside residence was valid for only one year, and expired on January 25, 1996, such permit is proof that the regular firearm license was renewed and subsisting within the two-year term up to January 1997." A Permit to Carry Firearm Outside Residence presupposes that the party to whom it is issued is duly licensed to possess the firearm in question." 30 Unquestionably, on January 17, 1997, the Chief, Firearms and Explosives Division, PNP renewed petitioner's license for the .45 cal. 31 Colt pistol in question. Clearly then; petitioner had a valid firearm license during the interregnum between January 17, 1995, to the issuance of his renewed license on January 17, 1997. Finally, there is no rhyme or reason why the Court of Appeals and the trial court did not accept with alacrity the certification dated June 25, 1996, of P/Sr. Inspector Edwin C. Roque,32 Chief, Records Branch, Firearms and Explosives Division, PNP that Vicente N. del Rosario of Barangay Tigbe, Norzagaray, Bulacan is a licensed/registered holder of Pistol, Colt caliber .45 with serial number 70G23792, covered by computerized license issued dated June 15, 1995, with an expiry date January 1997.33 Reinforcing the aforementioned certification, petitioner submitted another certification dated August 27, 1999, stating that Vicente N. del Rosario of Barangay Tigbe, Norzagaray, Bulacan, was issued firearm license No. RL-C1614021915, for caliber .45 Pistol with Serial Number 70G23792, for the years covering the period from July 13, 1993 to January 1995, and the extension appearing at the back thereof for the years 1995 to 1997.34 Had the lower courts given full probative value to these official issuances, petitioner would have been correctly acquitted, thus sparing this Court of valuable time and effort. "In crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz.: (a) the existence of the subject firearm and (b) the fact that the accused who owned or possessed it does not have the license or permit to possess the same.35 The essence of the crime of illegal possession is the possession, whether actual or constructive, of the subject firearm, without which there can be no conviction for illegal possession. After possession is established by the prosecution, it would only be a matter of course to determine whether the accused has a license to possess the firearm."36 "Possession of any firearm becomes unlawful only if the necessary permit or license therefor is not first obtained. The absence of license and legal authority constitutes an essential ingredient of the offense of illegal possession of firearm and every ingredient or essential element of an offense must be shown by the prosecution by proof beyond reasonable doubt. Stated otherwise, the negative fact of lack or absence of license constitutes an essential ingredient of the offense which the prosecution has the duty not only to allege but also, to prove beyond reasonable doubt."37 "To convict an accused for illegal possession of firearms and explosives under P. D. 1866, as amended, two (2) essential elements must be indubitably established, viz.: (a) the existence of the subject firearm or explosive which may be proved by the presentation of the subject firearm or explosive or by the testimony of witnesses who saw accused in possession of the same, and (b) the negative fact that the accused had no license or permit to own or possess the firearm or explosive which fact may be established by the testimony or certification of a representative of the PNP Firearms and Explosives Unit that the accused has no license or permit to possess the subject firearm or explosive." x x x We stress that the essence of the crime penalized under P. D. 1866 is primarily the accused's lack of license or permit to carry or possess the firearm, ammunition or explosive as possession by itself is not prohibited by law."38 Illegal possession of firearm is a crime punished by special law, a malum prohibitum, and no malice or intent to commit a crime need be proved.39 To support a conviction, however, there must be possession coupled with intent to possess (animus possidendi) the firearm.40

In upholding the prosecution and giving credence to the testimony of police officer Jerito A. Adigui, the trial court relied 41 on the presumption of regularity in the performance of official duties by the police officers. This is a flagrant error because his testimony is directly contradictory to the official records of the Firearms and Explosives Division, PNP, which must prevail. Morever, the presumption of regularity can not prevail over the Constitutional presumption of 42 innocence. Right from the start, P/Sr. Insp. Jerito A. Adigue was aware that petitioner possessed a valid license for the caliber .45 Colt pistol in question. Despite this fact, P/Sr. Insp. Adigue proceeded to detain petitioner and charged him with illegal possession of firearms. We quote pertinent portions of the testimony of petitioner: Q: What else did Adigue tell you after showing to him the license of your cal. .45 pistol and the alleged cal. .22 found in a drawer in your kitchen? A: He told me that since my firearm is licensed, he will return my firearm, give him ten thousand pesos (P10,000.00) and for me to tell who among the people in our barangay have unlicensed firearm, sir. Q: A: Q: How did he say about the ten thousand pesos? He said "palit kalabaw na lang tayo" sir. And what did you answer him?

nullification: (1) it must be issued upon probable cause; (2) the probable cause must be determined by the judge himself and not by the applicant or any other person; (3) in the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and (4) the warrant 47 issued must particularly describe the place to be searched and persons or things to be seized." Seizure is limited to those items particularly described in a valid search warrant. Searching officers are without discretion regarding what 48 articles they shall seize. Evidence seized on the occasion of such an unreasonable search and seizure is tainted and excluded for being the proverbial "fruit of a poisonous tree." In the language of the fundamental law, it shall be inadmissible in evidence for any purpose in any proceeding.49 In this case, the firearm was not found inadvertently and in plain view. It was found as a result of a meticulous search in the kitchen of petitioner's house. This firearm, to emphasize, was not mentioned in the search warrant. Hence, the 50 seizure was illegal. The seizure without the requisite search warrant was in plain violation of the law and the 51 Constitution. True that as an exception, the police may seize without warrant illegally possessed firearm or any contraband for that matter, inadvertently found in plain view. However, "[t]he seizure of evidence in 'plain view' applies only where the police officer is not searching for evidence against the accused, but inadvertently comes across an 52 incriminating object." Specifically, seizure of evidence in "plain view" is justified when there is: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who had the right to be where they are. (c) the evidence must be immediately apparent, and (d) "plain view" justified mere seizure of evidence without further search.53 Hence, the petitioner rightly rejected the firearm as planted and not belonging to him. The prosecution was not able to prove that the firearm was in the effective possession or control of the petitioner without a license. In illegal possession of firearms, the possessor must know of the existence of the subject firearm in his possession or control. "In People v. de Gracia,54 we clarified the meaning of possession for the purpose of convicting a person under P. D. No.1866, thus: x x x 'In the present case, a distinction should be made between criminal intent and intent to possess. While mere possession without criminal intent is sufficient to convict a person for illegal possession of a firearm, it must still be shown that there was animus possidendi or an intent to possess on the part of the accused.' x x x x Hence, the kind of possession punishable under P. D. No. 1866 is one where the accused possessed a firearm either physically or constructively with animus possidendi or intention to possess the same."55 That is the meaning of animus possidendi. In the absence of animus possidendi, the possessor of a firearm incurs no criminal liability. The same is true with respect to the 5.56 cal. magazine found in the bedroom of petitioner's daughter. The seizure was invalid and the seized items were inadmissible in evidence. As explained in People v. Doria, 56 the "plain view" doctrine applies when the following requisites concur: (1) the law if enforcement officer is in a position where he has a clear view of a particular area or alias prior justification for an intrusion; (2) said officer inadvertently comes across (or sees in plain view) a piece of incriminating evidence; and (3) it is, immediately apparent to such officer that the item he sees may be evidence of a crime or a contraband or is otherwise subject to seizure." With particular reference to the two 2-way radios that the raiding policemen also seized in the bedroom of petitioner's daughter, there was absolutely no reason for the seizure. The if radios were not contraband per se.The National Telecommunications Commission may license two-way radios at its discretion.57 The burden is on the prosecution to show that the two-way radios were not licensed. The National Telecommunication Commission is the sole agency authorized to seize unlicensed two-way radios. More importantly, admittedly, the two-way radios were not mentioned in the search warrant. We condemn the seizure as illegal and a plain violation of a citizen's right. Worse, the petitioner was not charged with illegal possession of the two-way radios.1wphi1.nt Consequently, the confiscation of the two 2-way radios was clearly illegal. The possession of such radios is not even included in the charge of illegal possession of firearms (violation of P. D. No. 1866, as amended) alleged in the Information.

A: I told him my firearm is licensed and I do not have money, if I have, I will not give him, sir, because he was just trying to squeeze something from me. Q: A: Q: A: Q: A: sir. Q: How about the unlicensed firearms in your barangay which he asked, from you? I said I do not know any unlicensed firearm in our barangay, sir. About the .22 cal. pistol, what was your answer to him? I told him that it was not mine, they planted it, sir. What did he say next? He said that it is your word against mine, the Court will believe me because I am a police officer,

What was your comment to what he said?

A: I said my firearm is licensed and we have Courts of law who do not conform with officials like you and then he laughed and laughed, sir."43 The trial court was obviously misguided when it held that "it is a matter of judicial notice that a caliber .45 firearm can not be licensed to a private individual."44 This ruling has no basis either in law or in jurisprudence.45 Second issue. The seizure of items not mentioned in the search warrant was illegal. With respect to the .22 caliber revolver with Serial No. 48673, that the police raiding team found in a drawer at the kitchen of petitioner's house, suffice it to say that the firearm was not mentioned in the search warrant applied for and issued for the search of petitioner's house. "Section 2, Article III of the Constitution lays down the general rule that a search and seizure must be carried out through or on the strength of a judicial warrant, absent which such search and seizure becomes 'unreasonable' within the meaning of said constitutional provision." 46 "Supporting jurisprudence thus outlined the following requisites for a search warrant's validity, the absence of even one will cause" its downright

WHEREFORE, the Court hereby REVERSES the decision of the Court of Appeals in CA-G. R. CR No. 22255, promulgated on July 09, 1999. The Court ACQUITS petitioner Vicente del Rosario y Nicolas of the charge of violation of P. D. No. 1866, as amended by R. A. No. 8294 (illegal possession of firearms and ammunition), in Criminal Case No. 800-M-96, Regional Trial Court, Bulacan, Branch 20, Malolos. Costs de oficio. The Chief; Firearms and Explosives Division, PNP shall return to petitioner his caliber .45 Colt pistol, with Serial Number No. 70023792, the five (5) extra magazines and twenty seven (27) rounds of live ammunition, and the two 2way radios confiscated from him. The Chief, Philippine National Police, or his duly authorized representative shall show to this Court proof of compliance herewith within fifteen (15) days from notice. The .22 caliber revolver with Serial No. 48673, and eight (8) live ammunition and the magazine for 5.56 mm. caliber Armalite rifle are confiscated in favor of the government.1wphi1.nt SO ORDERED.