EVIDENCE NEW SET|1

G.R. No. 155034 May 22, 2008 PEOPLE OF THE PHILIPPINES, appellee, vs. FRANCISCO BLANCAFLOR, appellant. DECISION TINGA, J.: Assailed in this Petition for Review1 is the Decision2 of the Court of Appeals3 in CA-G.R. SP No. 66449 deleting the award of salary differential and attorneys fees to petitioner Virgilio Sapio, as well as the Resolution4 denying his motion for reconsideration. The controversy started with a complaint filed by petitioner against Undaloc Construction and/or Engineer Cirilo Undaloc for illegal dismissal, underpayment of wages and nonpayment of statutory benefits. Respondent Undaloc Construction, a single proprietorship owned by Cirilo Undaloc, is engaged in road construction business in Cebu City. Petitioner had been employed as watchman from 1 May 1995 to 30 May 1998 when he was terminated on the ground that the project he was assigned to was already finished, he being allegedly a project employee. Petitioner asserted he was a regular employee having been engaged to perform works which are "usually necessary or desirable" in respondents business. He claimed that from 1 May to 31 August 1995 and from 1 September to 31 December 1995, his daily wage rate was only P80.00 and P90.00, respectively, instead of P121.87 as mandated by Wage Order No. ROVII-03. From 1 March 1996 to 30 May 1998, his daily rate was P105.00. He further alleged that he was made to sign two payroll sheets, the first bearing the actual amount he received wherein his signature was affixed to the last column opposite his name, and the second containing only his name and signature. To buttress this allegation, petitioner presented the payroll sheet covering the period from 4 to 10 December 1995 in which the entries were written in pencil. He also averred that his salary from 18 to 30 May 1998 was withheld by respondents.5 For its part, respondent Cirilo Undaloc maintained that petitioner was hired as a project employee on 1 May 1995 and was assigned as watchman from one project to another until the termination of the project on 30 May 1998.6 Refuting the claim of underpayment, respondent presented the payroll sheets from 2 September to 8 December 1996, 26 May to 15 June 1997, and 12 January to 31 May 1998.7 On 12 July 1999, the Labor Arbiter8 rendered a decision the dispositive portion of which reads: WHEREFORE, in the [sic] light of the foregoing, judgment is rendered finding complainant to be a project employee and his termination was for an authorized cause. However, respondent is found liable to pay complainants salary of P2,648.45 and 13th month pay of P2,489.00. Respondent is also found liable to pay complainants salary differential in the amount of P24,902.88. Attorneys fee of P3,000.00 is also awarded. All other claims are dismissed for lack of merit.9 Respondents appealed the award of salary differential to the National Labor Relations Commission (NLRC). In a Decision10 dated 28 August 2000, the NLRC sustained the findings of the Labor Arbiter. Respondents elevated the case to the Court of Appeals which deleted the award of salary differential and attorneys fees. Thus, this petition for review. Petitioner raises two grounds, one procedural and the other substantive. On the procedural aspect, petitioner contends that the appellate court erred in failing to dismiss respondents petition for certiorari brought before it on the ground that respondents failed to attach certified true copies of the NLRCs decision and resolution

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denying the motion for reconsideration.
11

In his Comment on the Petition for Certiorari with Prayer for Temporary Restraining and/or Preliminary Injunction12 filed with the Court of Appeals on 22 November 2001, petitioner did not raise this procedural issue. Neither did he do so when he moved for reconsideration of the 8 May 2002 Decision of the Court of Appeals. It is only now before this Court that petitioner proffered the same. This belated submission spells doom for petitioner. More fundamentally, an examination of the Court of Appeals rollo belies petitioner as it confirms that the alleged missing documents were in fact attached to the petition. 13 That petitioner was a project employee became a non-issue beginning with the decision of the Labor Arbiter. Contested still is his entitlement to salary differential, apart from attorneys fees. Petitioner avers that he was paid a daily salary way below the minimum wage provided for by law.14 His claim of salary differential represents the difference between the daily wage he actually received and the statutory minimum wage, which he presented as follows: Actual Daily Wage Received (for 8 hours worked) Minimum Daily Wage Provided by Law (for 8 hours worked) P121.87 P121.87 P131.00 P131.00 P136.00 P141.00 P141.00 P150.00 P150.00 P155.00 P160.00

5-1-95 to 8-31-95 Place of Assignment: 9-1-95 to 12-31-95 Place of Assignment: 1-1-96 to 2-28-96 Place of Assignment: 3-1-96 to 6-30-96 Place of Assignment: 7-1-96 to 9-30-96 Place of Assignment: 10-1-96 to 3-14-97 Place of Assignment: 3-15-97 to 6-30-97 Place of Assignment: 7-1-97 to 9-30-97 Place of Assignment: 10-1-97 to 3-31-98 Place of Assignment: 4-1-98 to 5-17-98 Place of Assignment: 5-18-98 to 5-30-98 Place of Assignment:

P80.00 plus 3 hrs. OT M.J. Cuenco-Imus Road Link P90.00 plus 3 hrs. OT P90.00 plus 3 hrs. OT P105.00 plus 3 hrs. OT P105.00 plus 3 hrs. OT P105.00 plus 3 hrs. OT P105.00 plus 3 hrs. OT P105.00 plus 3 hrs. OT P105.00 plus 3 hrs. OT P105.00 plus 3 hrs. OT P105.00 plus 3 hrs. OT

To counter petitioners assertions, respondents submitted typewritten and signed payroll sheets from 2 September to 8 December 1996, from 26 May to 15 June 1997, and from 12 January to 31 May 1998.15 These payroll sheets clearly indicate that petitioner did receive a daily salary of P141.00. In turn, petitioner presented the December 1995 payroll sheet written in pencil16 in tandem with the assertion that he, together with his co-employees, was required to sign two sets of payroll sheets in different colors: white, which bears the actual amount he received with his signature affixed in the last column opposite his name, and yellow, where only his name appears thereon with his signature also affixed in the last column opposite his name.17 In the December 1995 payroll sheet, petitioner appears to have received P90.00 only as his daily salary but he did not sign the same.

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Banking on the fact that the December 1995 payroll sheet was written in pencil, the Labor Arbiter concluded that the entries were susceptible to change or erasure and that that susceptibility in turn rendered the other payroll sheets though typewritten less credible. Thus: x x x Complainants allegation that he was made to sign two (2) payrolls, the first page bears the actual amount he received when he affixed his signature in the last column and the original with entries written in pencil is admitted by the respondent that it did so. When respondent had his payrolls prepared in pencil, the tendency is that the entries therein will be erased and changed them so that it would appear that the salaries of the workers are in conformity with the law. The explanation given by the respondent through the affidavit of Jessica Labang that the payrolls were first written in pencil because of the numerous employees to be paid each Saturday, is not acceptable. The efforts done in preparing the payroll in pencil is practically the same if it was done in ballpen or through typewriters. Obviously, the purpose is to circumvent the law. When payrolls are prepared in pencil, it is so easy for the employer to alter the amounts actually paid to the workers and make it appear that the amounts paid to the workers are in accord with law. The probative value of the payrolls submitted by the respondent becomes questionable, thus, cannot be given weight. It is most likely that the entries in the payrolls are no longer the same entries when complainant signed them. Complainant is therefore entitled to salary differential as complainants salary was only P105.00. x x x18 Thereupon, the Labor Arbiter proceeded to grant petitioners salary differential to the tune of P24,902.88. The Court of Appeals did not subscribe to the common findings of the Labor Arbiter and the NLRC. The appellate court pointed out that allegations of fraud in the preparation of payroll sheets must be substantiated by evidence and not by mere suspicions or conjectures, viz: As a general rule, factual findings and conclusions drawn by the National Labor Relations Commission are accorded great weight and respect upon appeal, even finality, as long as they are supported by substantial evidence. Substantial evidence is more than a mere scintilla. It means such relevant evidence that a reasonable mind would accept as sufficient to support a conclusion. A suspicion or belief no matter how sincerely felt cannot be a substitute for factual findings carefully established through an orderly procedure. The Labor Arbiter merely surmised and presumed that petitioners had the tendency to alter the entries in the payroll. Albeit the petitioner admitted that the payrolls were initially made in pencil, the same does not, and must not be presumed as groundwork for alteration. We find nothing in the proceedings, as well as in the pleadings submitted, to sustain the Labor Arbiters findings of the alleged "tendency" to alter the entries. It is elementary in this jurisdiction that whoever alleges fraud or mistake affecting a transaction must substantiate his allegation, since it is presumed that a person takes ordinary care of his concerns and private transactions have been fair and regular. Persons are presumed to have taken care of their business. Absent any indication sufficient enough to support a conclusion, we cannot uphold the findings of the Labor Arbiter and the NLRC.19 The conclusion of the Labor Arbiter that entries in the December 1995 payroll sheet could have been altered is utterly baseless. The claim that the December 1995 payroll sheet was written in pencil and was thus rendered it prone to alterations or erasures is clearly non sequitur. The same is true with respect to the typewritten payroll sheets. In fact, neither the Labor Arbiter nor the NLRC found any alteration or erasure or traces thereat, whether on the pencil-written or typewritten payroll sheets. Indeed, the most minute examination will not reveal any tampering. Furthermore, if there is any adverse conclusion as regards the December 1995 payroll sheet, it must be confined only to it and cannot be applied to the typewritten payroll sheets. Moreover, absent any evidence to the contrary, good faith must be presumed in this case. Entries in the payroll, being entries in the course of business, enjoy the presumption of regularity under Rule 130, Section 43 of the

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Rules of Court. Hence, while as a general rule, the burden of proving payment of monetary claims rests on the employer,20 when fraud is alleged in the preparation of the payroll, the burden of evidence shifts to the employee and it is incumbent upon him to adduce clear and convincing evidence in support of his claim.21Unfortunately, petitioners bare assertions of fraud do not suffice to overcome the disputable presumption of regularity. While we adhere to the position of the appellate court that the "tendency" to alter the entries in the payrolls was not substantiated, we cannot however subscribe to the total deletion of the award of salary differential and attorneys fees, as it so ruled. The Labor Arbiter granted a salary differential of P24,902.88.22 The Labor Arbiter erred in his computation. He fixed the daily wage rate actually received by petitioner at P105.0023 without taking into consideration the P141.00 rate indicated in the typewritten payroll sheets submitted by respondents. Moreover, the Labor Arbiter misapplied the wage orders24 when he wrongly categorized respondent as falling within the first category. Based on the stipulated number of employees and audited financial statements,25 respondents should have been covered by the second category. To avoid further delay in the disposition of this case which is not in consonance with the objective of speedy justice, we have to adjudge the rightful computation of the salary differential based on the applicable wage orders. After all, the supporting records are complete. This Court finds that from 1 January to 30 August 1996 and 1 July 1997 to 31 May 1998, petitioner had received a wage less than the minimum mandated by law. Therefore, he is entitled to a salary differential. For the periods from 30 May to 31 December 1995 and 2 September 1996 to 30 June 1997, petitioner had received the correct wages. To illustrate: Wage actually received P105.00 P105.00 P105.00 P141.0029 P141.00 P141.00 P141.00 P141.00 P141.00 Statutory Minimum wage P99.0026 P125.0027 P130.0028 P130.0030 P135.0031 P139.0032 P144.0033 P149.0034 P154.0035 Differential

30 May 31 December. 1995 1 January 30 June 1996 (156 days) 1 July 30 August 1996 (52 days) 2 30 September 1996 1 October 1996- 15 March 1997 16 March 30 June 1997 1 July 30 September 1997 (78 days) 1 October 1997- 31 March 1998 (156 days) 1 April 31 May 1998 (52 days)

0 P20.00/day or P3120.00 P25.00/day or P1300.00 0 0 0 P3.00/day or P234.00 P8.00/day or P1248.00 P13.00/day or P676.00

The total salary differential that petitioner is lawfully entitled to amounts to P6,578.00 However, pursuant to Section 12 of Republic Act (R.A.) No. 6727, as amended by R.A. No. 8188. Respondents are required to pay double the amount owed to petitioner, bringing their total liability to P13,156.00. Section 12. Any person, corporation, trust, firm, partnership, association or entity which refuses or fails to pay any of the prescribed increases or adjustments in the wage rates made in accordance with this Act shall be punished by a fine not less than Twenty-five thousand pesos (P25,000.00) nor more than One hundred thousand pesos (P100,000.00) or imprisonment of not less than two (2) years nor more than four (4) years, or both such fine and imprisonment at the discretion of the court: Provided, That any person convicted under this Act shall not be entitled to the benefits provided for under the Probation Law. The employer concerned shall be ordered to pay an amount equivalent to double the unpaid benefits owing to the employees: Provided, That payment of indemnity shall not absolve the

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employer from the criminal liability imposable under this Act. If the violation is committed by a corporation, trust or firm, partnership, association or any other entity, the penalty of imprisonment shall be imposed upon the entitys responsible officers, including, but not limited to, the president, vice president, chief executive officer, general manager, managing director or partner. (Emphasis supplied) The award of attorneys fees is warranted under the circumstances of this case. Under Article 2208 of the New Civil Code, attorney's fees can be recovered in actions for the recovery of wages of laborers and actions for indemnity under employer's liability laws 36 but shall not exceed 10% of the amount awarded.37 The fees may be deducted from the total amount due the winning party. WHEREFORE, the petition is PARTIALLY GRANTED. Petitioner is awarded the salary differential in the reduced amount of P13,156.00 and respondents are directed to pay the same, as well as ten percent (10%) of the award as attorney's fees. SO ORDERED.

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FIRST DIVISION BARCELON, ROXAS SECURITIES, INC. (now known as UBP Securities, Inc.) - versus G. R. No. 157064

Promulgated: COMMISSIONER OF INTERNAL REVENUE, Respondent. August 7, 2006 x--------------------------------------------------x DECISION CHICO-NAZARIO, J.: This is a Petition for Review on Certiorari, under Rule 45 of the Rules of Court, seeking to set aside the Decision of the Court of Appeals in CA-G.R. SP No. 60209 dated 11 July 2002,[1] ordering the petitioner to pay the Government the amount ofP826,698.31 as deficiency income tax for the year 1987 plus 25% surcharge and 20% interest per annum. The Court of Appeals, in its assailed Decision, reversed the Decision of the Court of Tax Appeals (CTA) dated 17 May 2000[2] in C.T.A. Case No. 5662. Petitioner Barcelon, Roxas Securities Inc. (now known as UBP Securities, Inc.) is a corporation engaged in the trading of securities. On 14 April 1988, petitioner filed its Annual Income Tax Return for taxable year 1987. After an audit investigation conducted by the Bureau of Internal Revenue (BIR), respondent Commissioner of Internal Revenue (CIR) issued an assessment for deficiency income tax in the amount of P826,698.31 arising from the disallowance of the item on salaries, bonuses and allowances in the amount of P1,219,093,93 as part of the deductible business expense since petitioner failed to subject the salaries, bonuses and allowances to withholding taxes. This assessment was covered by Formal Assessment Notice No. FAN-1-87-91-000649 dated 1 February 1991, which, respondent alleges, was sent to petitioner through registered mail on 6 February 1991. However, petitioner denies receiving the formal assessment notice.[3] On 17 March 1992, petitioner was served with a Warrant of Distraint and/or Levy to enforce collection of the deficiency income tax for the year 1987. Petitioner filed a formal protest, dated 25 March 1992, against the Warrant of Distraint and/or Levy, requesting for its cancellation. On 3 July 1998, petitioner received a letter dated 30 April 1998 from the respondent denying the protest with finality.[4] On 31 July 1998, petitioner filed a petition for review with the CTA. After due notice and hearing, the CTA rendered a decision in favor of petitioner on 17 May 2000. The CTA ruled on the primary issue of prescription and found it unnecessary to decide the issues on the validity and propriety of the assessment. It maintained that while a mailed letter is deemed received by the addressee in the course of mail, this is merely a disputable presumption. It reasoned that the direct denial of the petitioner shifts the burden of proof to the respondent that the mailed letter was actually received by the petitioner. The CTA found the BIR records submitted by the respondent immaterial, self-serving, and therefore insufficient to prove that the assessment notice was mailed and duly received by the petitioner.[5] The dispositive portion of this decision reads: WHEREFORE, in view of the foregoing, the 1988 deficiency tax assessment against petitioner is hereby CANCELLED. Respondent is hereby ORDERED TO DESIST from collecting said deficiency tax. No pronouncement as to costs.[6]

On 6 June 2000, respondent moved for reconsideration of the aforesaid decision but was denied by the CTA in a Resolution dated 25 July 2000. Thereafter, respondent appealed to the Court of Appeals on 31 August 2001. In reversing the CTA decision, the Court of Appeals found the evidence presented by the respondent to be sufficient proof that the tax assessment notice was mailed to the petitioner, therefore the legal presumption that it was received should apply.[7] Thus, the Court of Appeals ruled that: WHEREFORE, the petition is hereby GRANTED. The decision dated May 17, 2000 as well as the Resolution dated July 25, 2000 are hereby REVERSED and SET ASIDE, and a new on entered ordering the respondent to pay the amount

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of P826,698.31 as deficiency income tax for the year 1987 plus 25% surcharge and 20% interest per annum from February 6, 1991 until fully paid pursuant to Sections 248 and 249 of the Tax Code.[8] Petitioner moved for reconsideration of the said decision but the same was denied by the Court of Appeals in its assailed Resolution dated 30 January 2003.[9] Hence, this Petition for Review on Certiorari raising the following issues: I W HETHER OR NOT LEGAL BASES EXIST FOR THE COURT OF APPEALS FINDING THAT THE COURT OF TAX APPEALS COMMITTED GROSS ERROR IN THE APPRECIATION OF FACTS. II WHETHER OR NOT THE COURT OF APPEALS WAS CORRECT IN REVERSING THE SUBJECT DECISION OF THE COURT OF TAX APPEALS. III WHETHER OR NOT THE RIGHT OF THE BUREAU OF INTERNAL REVENUE TO ASSESS PETITIONER FOR ALLEGED DEFICIENCY INCOME TAX FOR 1987 HAS PRESCRIBED. IV WHETHER OR NOT THE RIGHT OF THE BUREAU OF INTERNAL REVENUE TO COLLECT THE SUBJECT ALLEGED DEFICIENCY INCOME TAX FOR 1987 HAS PRESCRIBED. V WHETHER OR NOT PETITIONER IS LIABLE FOR THE ALLEGED DEFICIENCY INCOME TAX ASSESSMENT FOR 1987. VI WHETHER OR NOT THE SUBJECT ASSESSMENT IS VIOLATIVE OF THE RIGHT OF PETITIONER TO DUE PROCESS.[10]

This Court finds the instant Petition meritorious. The core issue in this case is whether or not respondents right to assess petitioners alleged deficiency income tax is barred by prescription, the resolution of which depends on reviewing the findings of fact of the Court of Appeals and the CTA. While the general rule is that factual findings of the Court of Appeals are binding on this Court, there are, however, recognized exceptions[11] thereto, such as when the findings are contrary to those of the trial court or, in this case, the CTA.[12] In its Decision, the CTA resolved the issues raised by the parties thus: Jurisprudence is replete with cases holding that if the taxpayer denies ever having received an assessment from the BIR, it is incumbent upon the latter to prove by competent evidence that such notice was indeed received by the addressee. The onus probandi was shifted to respondent to prove by contrary evidence that the Petitioner received the assessment in the due course of mail. The Supreme Court has consistently held that while a mailed letter is deemed received by the addressee in the course of mail, this is merely a disputable presumption subject to controversion and a direct denial thereof shifts the burden to the party favored by the presumption to prove that the mailed letter was indeed received by the addressee(Republic vs.

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Court of Appeals, 149 SCRA 351). Thus as held by the Supreme Court in Gonzalo P. Nava vs. Commissioner of Internal Revenue, 13 SCRA 104, January 30, 1965: The facts to be proved to raise this presumption are (a) that the letter was properly addressed with postage prepaid, and (b) that it was mailed. Once these facts are proved, the presumption is that the letter was received by the addressee as soon as it could have been transmitted to him in the ordinary course of the mail. But if one of the said facts fails to appear, the presumption does not lie. (VI, Moran, Comments on the Rules of Court, 1963 ed, 56-57 citing Enriquez vs. Sunlife Assurance of Canada, 41 Phil 269). In the instant case, Respondent utterly failed to discharge this duty. No substantial evidence was ever presented to prove that the assessment notice No. FAN-1-87-91-000649 or other supposed notices subsequent thereto were in fact issued or sent to the taxpayer. As a matter of fact, it only submitted the BIR record book which allegedly contains the list of taxpayers names, the reference number, the year, the nature of tax, the city/municipality and the amount (see Exh. 5-a for the Respondent). Purportedly, Respondent intended to show to this Court that all assessments made are entered into a record book in chronological order outlining the details of the assessment and the taxpayer liable thereon. However, as can be gleaned from the face of the exhibit, all entries thereon appears to be immaterial and impertinent in proving that the assessment notice was mailed and duly received by Petitioner. Nothing indicates therein all essential facts that could sustain the burden of proof being shifted to the Respondent. What is essential to prove the fact of mailing is the registry receipt issued by the Bureau of Posts or the Registry return card which would have been signed by the Petitioner or its authorized representative. And if said documents cannot be located, Respondent at the very least, should have submitted to the Court a certification issued by the Bureau of Posts and any other pertinent document which is executed with the intervention of the Bureau of Posts. This Court does not put much credence to the self serving documentations made by the BIR personnel especially if they are unsupported by substantial evidence establishing the fact of mailing. Thus: While we have held that an assessment is made when sent within the prescribed period, even if received by the taxpayer after its expiration (Coll. of Int. Rev. vs. Bautista, L-12250 and L-12259, May 27, 1959), this ruling makes it the more imperative that the release, mailing or sending of the notice be clearly and satisfactorily proved. Mere notations made without the taxpayers intervention, notice or control, without adequate supporting evidence cannot suffice; otherwise, the taxpayer would be at the mercy of the revenue offices, without adequate protection or defense. (Nava vs. CIR, 13 SCRA 104, January 30, 1965). xxxx The failure of the respondent to prove receipt of the assessment by the Petitioner leads to the conclusion that no assessment was issued. Consequently, the governments right to issue an assessment for the said period has already prescribed. (Industrial Textile Manufacturing Co. of the Phils., Inc. vs. CIR CTA Case 4885, August 22, 1996).[13]

Jurisprudence has consistently shown that this Court accords the findings of fact by the CTA with the highest respect. In Sea-Land Service Inc. v. Court of Appeals[14] this Court recognizes that the Court of Tax Appeals, which by the very nature of its function is dedicated exclusively to the consideration of tax problems, has necessarily developed an expertise on the subject, and its conclusions will not be overturned unless there has been an abuse or improvident exercise of authority. Such findings can only be disturbed on appeal if they are not supported by substantial evidence or there is a showing of gross error or abuse on the part of the Tax Court.[15] In the absence of any clear and convincing proof to the contrary, this Court must presume that the CTA rendered a decision which is valid in every respect. Under Section 203[16] of the National Internal Revenue Code (NIRC), respondent had three (3) years from the last day for the filing of the return to send an assessment notice to petitioner. In the case of Collector of Internal Revenue v. Bautista,[17] this Court held that an assessment is made within the prescriptive period if

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notice to this effect is released, mailed or sent by the CIR to the taxpayer within said period. Receipt thereof by the taxpayer within the prescriptive period is not necessary. At this point, it should be clarified that the rule does not dispense with the requirement that the taxpayer should actually receive, even beyond the prescriptive period, the assessment notice which was timely released, mailed and sent. In the present case, records show that petitioner filed its Annual Income Tax Return for taxable year 1987 on 14 April 1988.[18] The last day for filing by petitioner of its return was on 15 April 1988,[19] thus, giving respondent until 15 April 1991within which to send an assessment notice. While respondent avers that it sent the assessment notice dated 1 February 1991 on 6 February 1991, within the three (3)-year period prescribed by law, petitioner denies having received an assessment notice from respondent. Petitioner alleges that it came to know of the deficiency tax assessment only on 17 March 1992 when it was served with the Warrant of Distraint and Levy.[20] In Protectors Services, Inc. v. Court of Appeals,[21] this Court ruled that when a mail matter is sent by registered mail, there exists a presumption, set forth under Section 3(v), Rule 131 of the Rules of Court, [22] that it was received in the regular course of mail. The facts to be proved in order to raise this presumption are: (a) that the letter was properly addressed with postage prepaid; and (b) that it was mailed. While a mailed letter is deemed received by the addressee in the ordinary course of mail, this is still merely a disputable presumption subject to controversion, and a direct denial of the receipt thereof shifts the burden upon the party favored by the presumption to prove that the mailed letter was indeed received by the addressee.[23] In the present case, petitioner denies receiving the assessment notice, and the respondent was unable to present substantial evidence that such notice was, indeed, mailed or sent by the respondent before the BIRs right to assess had prescribed and that said notice was received by the petitioner. The respondent presented the BIR record book where the name of the taxpayer, the kind of tax assessed, the registry receipt number and the date of mailing were noted. The BIR records custodian, Ingrid Versola, also testified that she made the entries therein. Respondent offered the entry in the BIR record book and the testimony of its record custodian as entries in official records in accordance with Section 44, Rule 130 of the Rules of Court, [24] which states that: Section 44. Entries in official records. - Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. The foregoing rule on evidence, however, must be read in accordance with this Courts pronouncement in Africa v. Caltex(Phil.), Inc.,[25] where it has been held that an entrant must have personal knowledge of the facts stated by him or such facts were acquired by him from reports made by persons under a legal duty to submit the same. There are three requisites for admissibility under the rule just mentioned: (a) that the entry was made by a public officer, or by another person specially enjoined by law to do so; (b) that it was made by the public officer in the performance of his duties, or by such other person in the performance of a duty specially enjoined by law; and (c) that the public officer or other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information x x x. In this case, the entries made by Ingrid Versola were not based on her personal knowledge as she did not attest to the fact that she personally prepared and mailed the assessment notice. Nor was it stated in the transcript of stenographic notes[26] how and from whom she obtained the pertinent information. Moreover, she did not attest to the fact that she acquired the reports from persons under a legal duty to submit the same. Hence, Rule 130, Section 44 finds no application in the present case. Thus, the evidence offered by respondent does not qualify as an exception to the rule against hearsay evidence. Furthermore, independent evidence, such as the registry receipt of the assessment notice, or a certification from the Bureau of Posts, could have easily been obtained. Yet respondent failed to present such evidence.

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In the case of Nava v. Commissioner of Internal Revenue, of proving the release, mailing or sending of the notice.
[27]

this Court stressed on the importance

While we have held that an assessment is made when sent within the prescribed period, even if received by the taxpayer after its expiration (Coll. of Int. Rev. vs. Bautista, L-12250 and L12259, May 27, 1959), this ruling makes it the more imperative that the release, mailing, or sending of the notice be clearly and satisfactorily proved. Mere notations made without the taxpayers intervention, notice, or control, without adequate supporting evidence, cannot suffice; otherwise, the taxpayer would be at the mercy of the revenue offices, without adequate protection or defense.

In the present case, the evidence offered by the respondent fails to convince this Court that Formal Assessment Notice No. FAN-1-87-91-000649 was released, mailed, or sent before 15 April 1991, or before the lapse of the period of limitation upon assessment and collection prescribed by Section 203 of the NIRC. Such evidence, therefore, is insufficient to give rise to the presumption that the assessment notice was received in the regular course of mail. Consequently, the right of the government to assess and collect the alleged deficiency tax is barred by prescription. IN VIEW OF THE FOREGOING, the instant Petition is GRANTED. The assailed Decision of the Court of Appeals in CA-G.R. SP No. 60209 dated 11 July 2002, is hereby REVERSED and SET ASIDE, and the Decision of the Court of Tax Appeals in C.T.A. Case No. 5662, dated 17 May 2000, cancelling the 1988 Deficiency Tax Assessment against Barcelon, RoxasSecuritites, Inc. (now known as UPB Securities, Inc.) for being barred by prescription, is hereby REINSTATED. No costs. SO ORDERED.

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March 31, 2005] AUGUSTO R. SAMALIO, petitioner, vs. COURT OF APPEALS, CIVIL SERVICE DEPARTMENT OF JUSTICE and BUREAU OF IMMIGRATION, respondents. DECISION CORONA, J.: Before us is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the May 24, 1999 decision,[1] as well as the September 1, 1999 resolution, of the Court of Appeals (CA) in CA-G.R. SP No. 48723 which in turn affirmed the November 26, 1997 resolution of the Civil Service Commission (CSC). The aforementioned CSC resolution upheld the August 30, 1996 1st Indorsement of then Justice Secretary Teofisto T. Guingona confirming the penalty of dismissal from service imposed by the Bureau of Immigration upon petitioner on the ground of dishonesty, oppression, misconduct and conduct grossly prejudicial to the best interest of the service in connection with his act of extorting money from Ms. Weng Sai Qin, a foreign national. The facts, as found by the CA and adopted by petitioner himself, are as follows: Petitioner Augusto R. Samalio was formerly an Intelligence Officer of the Bureau of Immigration and Deportation. In Resolution No. 0-93-0224 dated February 4, 1993, the City Prosecutors office of Pasay City recommended that petitioner Samalio be prosecuted for the crimes of Robbery and Violation of Section 46 of the Immigration Law before the Sandiganbayan under the following facts: x x x that on 2 February 1993, Ms. Weng Sai Qin arrived at the NAIA from Saipan. While waiting for her turn at the arrival immigration counter, her passport was examined by Immigration Officer Juliet Pajarillaga. Noting that Ms. Weng, a Chinese, was holding a Uruguayan passport, Ms. Pajarillaga suspected that the formers passport was fake. Ms. Weng was taken out of the queue and brought to Respondent who was the duty intelligence officer. Ms. Weng, who could only speak in Chinese, asked respondent by sign language that she wanted to meet a friend who was waiting at the NAIA arrival area. Respondent approved the request and accompanied Ms. Weng to the arrival area. Thereafter, Respondent, with Ms. Weng and her male friend in tow, returned to the immigration area. While inside the office of Respondent, Ms. Weng asked that her passport be returned. Sensing a demand for money in exchange for her passport, Ms. Weng flashed $500.00 in front of Respondent. The money was grabbed by Respondent. Shortly, her passport was returned ans [sic] she was allowed to leave. When Ms. Weng checked her passport later, she discovered that it did not bear an immigration arrival stamp. Thereafter, Ms. Weng complained against Respondent. In a later Indorsement communication dated February 9, 1993 to the Bureau of Immigration and Deportation (BID), former NAIA General Manager Gen. Guillermo G. Cunanan enclosed a copy of the aforesaid City Prosecutors Resolution. Reacting, then BID Commissioner, Zafiro L. Respicio, issued Personnel Order No. 93179-93 commencing an administrative case against petitioner Augusto R. Samalio for Violation of CSMC No. 46, Rule 2, Section 1, for dishonesty, oppression, misconduct, disgraceful and immoral conduct, inefficiency and incompetence in the performance of official duties, violation of reasonable office rules and regulations and conduct prejudicial to the best interest of the service, requiring petitioner to submit his answer to the charges together with supporting statements and documents, and whether or not he elects a formal investigation if his answer is not considered satisfactory. In the same Personnel Order, Samalio was preventively suspended for a period of ninety (90) days as the charge sheet against him involves dishonesty, oppression and misconduct. Forthwith, petitioner attempted the lifting of his preventive suspension. It was struck down. Later on, petitioner submitted an answer denying the charges and expressly electing a formal investigation if such answer be not found to be satisfactory. Attached thereto are the affidavits of his witnesses Rodrigo C. Pedrealba, Dante Aquino, Florencio B. Austria and Winston C. Vitan. The answer was found to be unsatisfactory so the case was set for formal hearing before the Board of Discipline of BID. The case suffered several postponed hearings due to the requests and non-availability of the parties but mostly due to the absence of complainants witnesses until on September 7, 1993, respondent was allowed to file a motion to dismiss with the Special Prosecutor designated given time to comment thereon. When the dismissal motion was filed, assigned Special Prosecutor Edmund F. Macaraig interposed no objection thereto. Notwithstanding, the case was not dismissed and instead, the Special Prosecutor was given five (5) days to inform the Board whether or not he intends to present additional witnesses. COMMISSION,

E V I D E N C E N E W S E T | 12
On December 16, 1993, the DID Commissioner issued Personnel Order No. 93-428 reorganizing the Board of Discipline and this case was assigned to a new Board presided by Atty. Kalaw. Subpoenas were again sent and hearings were scheduled several times before the new Board until on February 6, 1995, Special Prosecutor assigned, Edmund F. Macaraig, moved that Samalios Motion to Dismiss be denied and that the case be considered submitted for resolution based on the records. On February 16, 1995, the hearing officer denied Samalios Motion to Dismiss but granted his Comment/Manifestation explaining his absence during the February 6, 1995 hearing and requesting that the case be set anew on February 22, 1995. Finally, on July 25, 1996, BID Acting Commissioner Ramon J. Liwag, issued the decision finding Augusto R. Samalio guilty of the charges and was ordered dismissed from service. In the 1st Indorsement dated August 30, 1996, former Justice Secretary Teofisto T. Guingona, Jr. confirmed the penalty of dismissal from service of Augusto R. Samalio. Soon after, the Motion for Reconsideration was denied in a Resolution dated June 2, 1997. Guingonas decision was appealed to the Civil Service Commission which issued Resolution No. 974501 dated November 26, 1997 dismissing the appeal for lack of merit and affirming the decisions of Acting Commissioner Liwag and Secretary Guingona. Similarly, the attempt for a reconsideration was likewise dismissed in Civil Service Resolution No. 981925. In the meantime, on June 13, 1994, during the pendency of the instant administrative case, Augusto R. Samalio was convicted (in Sandiganbayan Criminal Case No. 18679) of the crime of Robbery, as defined in Articles 293 and 294, paragraph 5 of the Revised Penal Code and was sentenced to suffer indeterminate penalty of Four (4) Months and One (1) Day of Arresto Mayor to Four (4) Years, Two (2) Months and Eleven (11) Days of Prision Correccional and to indemnify complainant Weng Sai Qin the amount of US $500.00 and to pay the costs. Samalio did not appeal the conviction and instead applied for and was granted probation by the Sandiganbayan for two (2) years in an Order dated December 12, 1994.[2] (Citations omitted) Petitioner assailed before the CA, in a petition for review, the correctness and validity of CSC Resolution Nos. 974501 and 981925. The CA, however, dismissed the petition for review and subsequently denied the motion for reconsideration. Petitioner now comes before us to challenge the CA decision dismissing his petition for review as well as the resolution denying his motion for reconsideration. Petitioner claims he was not accorded due process and the CA failed to consider the proper effects of his discharge under probation. In support of his contention that he was deprived of due process, petitioner alleges that no witness or evidence was presented against him, that the CA erred in the interpretation of Section 47, Rule 130 of the Rules of Court and that there was no hearing conducted on his case. Petitioners contention is without merit. The CSC decision and resolution which upheld the resolution of the Secretary of Justice confirming the decision of the Commissioner of the BID are supported by substantial evidence. The CSC, as well as the Secretary of Justice and the Commissioner of the BID, decided the case on the basis of the pleadings and papers submitted by the parties, and relied on the records of the proceedings taken. In particular, the decision was based on the criminal complaint filed by Weng Sai Qin against petitioner before the City Prosecutors Office of Pasay City, as well as Resolution No. 0-93-0224 dated February 4, 1993 of the same office recommending the prosecution of petitioner at the Sandiganbayan for the crimes of robbery and violation of Section 46 of the Immigration Law. The CSC, as well as the Secretary of Justice, also took cognizance of the testimony of Weng Sai Qin in Sandiganbayan Criminal Case No. 18679 and the fact of petitioner s conviction in that case. Thus, there was ample evidence which satisfied the burden of proof required in administrative proceedings substantial evidence or that quantum of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion[3] to support the decision of the CSC. The CSC and the Secretary of Justice did not err in applying Section 47, Rule 130 of the Revised Rules of Court, otherwise known as the rule on former testimony, in deciding petitioners administrative case. The provisions of the Rules of Court may be applied suppletorily to the rules of procedure of administrative bodies exercising quasi-judicial powers, unless otherwise provided by law or the rules of procedure of the administrative

E V I D E N C E N E W S E T | 13
agency concerned. The Rules of Court, which are meant to secure to every litigant the adjective phase of due process of law, may be applied to proceedings before an administrative body with quasi-judicial powers in the absence of different and valid statutory or administrative provisions prescribing the ground rules for the investigation, hearing and adjudication of cases before it.[4] For Section 47, Rule 130 to apply, the following requisites must be satisfied: (a) the witness is dead or unable to testify; (b) his testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests; (c) the former case involved the same subject as that in the present case, although on different causes of action; (d) the issue testified to by the witness in the former trial is the same issue involved in the present case and (e) the adverse party had an opportunity to cross-examine the witness in the former case.[5] In this case, Weng Sai Qin was unable to testify in the administrative proceedings before the BID because she left the country on February 6, 1993,[6] or even before the administrative complaint against petitioner was instituted. Petitioner does not deny that the testimony of Weng Sai Qin was given in Sandiganbayan Criminal Case No. 18679, a case which sprang from the information filed pursuant to Resolution No. 0-93-0224 dated February 4, 1993 of the City Prosecutors Office of Pasay City, the very same resolution used by Commissioner Respicio as basis for filing the administrative complaint. Hence, the issue testified to by Weng Sai Qin in Sandiganbayan Criminal Case No. 18679 was the same issue in the administrative case, that is, whether petitioner extorted money from Weng Sai Qin. Petitioner also had the opportunity to face and cross-examine his accuser Weng Sai Qin, and to defend and vindicate his cause before the Sandiganbayan. Clearly, all the requisites for the proper application of the rule on former testimony, as embodied in Section 47, Rule 130, were satisfied. Thus, the CSC and the Secretary of Justice committed no error when they applied it and took cognizance of the former testimony of Weng Sai Qin in Sandiganbayan Criminal Case No. 18679 where petitioner was convicted. Petitioner contends that the CA, as well as the CSC and the Secretary of Justice, should not have applied Section 47, Rule 130 because there was failure to lay the basis or predicate for the rule. The argument is specious and deserves scant consideration. The records of this case reveal that even in the early stages of the proceedings before the Board of Discipline of the BID, Weng Sai Qins departure from the country and consequent inability to testify in the proceedings had already been disclosed to the parties.[7] Further, administrative bodies are not bound by the technical niceties of law and procedure and the rules obtaining in courts of law.[8]Administrative tribunals exercising quasi-judicial powers are unfettered by the rigidity of certain procedural requirements, subject to the observance of fundamental and essential requirements of due process in justiciable cases presented before them.[9] In administrative proceedings, technical rules of procedure and evidence are not strictly applied and administrative due process cannot be fully equated with due process in its strict judicial sense.[10] The Uniform Rules of Procedure in the Conduct of Administrative Investigations in the CSC [11] which were applicable to petitioners case provided that administrative investigations shall be conducted without necessarily adhering to technical rules applicable in judicial proceedings.[12] The Uniform Rules further provided that evidence having materiality and relevance to the administrative case shall be accepted.[13] Not only was petitioners objection to the application of Section 47, Rule 130 a technicality that could be disregarded; the testimony of Weng Sai Qin in Sandiganbayan Criminal Case No. 18679 was also material and relevant to the administrative case. Hence, the CSC was correct in applying Section 47, Rule 130 when it took cognizance of the former testimony of Weng Sai Qin in the aforementioned criminal case. Petitioners assertion that there was no hearing (that he was deprived of the opportunity to be heard) is likewise without merit. Apparently, petitioners concept of the opportunity to be heard is the opportunity to ventilate ones side in a formal hearing where he can have a face-to-face confrontation with the complainant. However, it is well-settled that, in administrative cases, the requirement of notice and hearing does not connote full adversarial proceedings.[14] Due process in an administrative context does not require trial-type proceedings similar to those in courts of justice. Where opportunity to be heard either through oral arguments or through pleadings is accorded, there is no denial of procedural due process.[15] A formal or trial-type hearing is not at all times and in all instances essential. The requirements are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand.[16] The standard of due process that must be met in administrative tribunals allows a certain degree of latitude as long as fairness is not ignored.[17] In other words, it is not legally objectionable for being violative of due process for an administrative agency to resolve a case based solely on

E V I D E N C E N E W S E T | 14
position papers, afidavits or documentary evidence submitted by the parties as affidavits of witnesses may take the place of their direct testimony.[18] In this case, petitioner was heard through the various pleadings which he filed with the Board of Discipline of the BID when he filed his answer[19] and two motions to dismiss,[20] as well as other motions and papers. He was also able to participate in all stages of the administrative proceeding. He was able to elevate his case to the Secretary of Justice and, subsequently, to the CSC by way of appeal. We have consistently held that the essence of due process is simply the opportunity to be heard or, as applied to administrative proceedings, the opportunity to explain ones side or the opportunity to seek a reconsideration of the action or ruling complained of.[21] And any seeming defect in its observance is cured by the filing of a motion for reconsideration.[22] Denial of due process cannot be successfully invoked by a party who has had the opportunity to be heard on his motion for reconsideration.[23] Petitioner himself admits that he filed a motion for reconsideration[24] of the decision of the BID which was confirmed by the Secretary of Justice. He also admits that he filed a motion for reconsideration [25] with the CSC. Hence, by his own admission, petitioners protestations that he had been deprived of due process must necessarily fail. Petitioner claims that when the Sandiganbayan approved his probation in the criminal case, it restored him to all civil rights lost or suspended as a result of his conviction, including the right to remain in government service. Petitioner cites the case of Baclayon v. Mutia, et al.[26] where the grant of probation suspended the imposition not only of the principal penalties but of the accessory penalties as well. Petitioners contention is misplaced. First, the Baclayon case is not in point. In that case, no administrative complaint was instituted against the public officer, a public school teacher, during the pendency of the criminal case against her and even after her conviction. There being no administrative case instituted against the public officer and no administrative liability having been imposed, there was no administrative sanction that could have been suspended by the grant of probation. Second, dismissal is not an accessory penalty either of prision correccional [27] or arresto mayor,[28] the range of penalty imposed upon petitioner in Sandiganbayan Criminal Case No. 18679. Hence, even assuming arguendo that petitioners contention was correct, the grant of probation could not have resulted in the suspension of an accessory penalty like dismissal that does not even exist. Third, to suspend means to stop temporarily; to discontinue [29] or to cause to be intermitted or interrupted.[30] The records of this case show that petitioner was granted probation in an order dated December 12, 1992[31] of the Second Division of the Sandiganbayan. He was dismissed from the service in the decision dated July 25, 1996[32] of the BID Commissioner. Since the grant of probation was granted long before the administrative case was decided, the probation could not have possibly suspended the imposition of the penalty of dismissal from the service in the administrative case since there was no administrative penalty that could have been interrupted by the probation at the time it was granted. Indeed, petitioners discharge on probation could not have restored or reinstated him to his employment in government service since he had not been yet been dismissed therefrom at the time of his discharge. Finally, even if dismissal had been one of the accessory penalties of the principal penalty imposed upon petitioner in the criminal case, and even if the administrative case had been decided earlier than the criminal case, still the imposition of the penalty of dismissal could not have been suspended by the grant of probation. As petitioner himself contends, the criminal action is separate and distinct from the administrative case. And, if only for that reason, so is administrative liability separate and distinct from penal liability.[33] Hence, probation affects only the criminal aspect of the case,[34] not its administrative dimension. WHEREFORE, the petition is hereby DENIED. The assailed decision of the Court of Appeals in CA-G.R. SP No. 48723 dated May 24, 1999, affirming the decision and resolution of the Civil Service Commission is AFFIRMED. Costs against petitioner. SO ORDERED.

E V I D E N C E N E W S E T | 15
G.R. No. 150157 January 25, 2007

MAURICIO MANLICLIC and PHILIPPINE RABBIT BUS LINES, INC., Petitioners, vs. MODESTO CALAUNAN, Respondent. DECISION CHICO-NAZARIO, J.: Assailed before Us is the decision1 of the Court of Appeals in CA-G.R. CV No. 55909 which affirmed in toto the decision2 of the Regional Trial Court (RTC) of Dagupan City, Branch 42, in Civil Case No. D-10086, finding petitioners Mauricio Manliclic and Philippine Rabbit Bus Lines, Inc. (PRBLI) solidarily liable to pay damages and attorneys fees to respondent Modesto Calaunan. The factual antecedents are as follows: The vehicles involved in this case are: (1) Philippine Rabbit Bus No. 353 with plate number CVD-478, owned by petitioner PRBLI and driven by petitioner Mauricio Manliclic; and (2) owner-type jeep with plate number PER-290, owned by respondent Modesto Calaunan and driven by Marcelo Mendoza. At around 6:00 to 7:00 oclock in the morning of 12 July 1988, respondent Calaunan, together with Marcelo Mendoza, was on his way to Manila from Pangasinan on board his owner-type jeep. The Philippine Rabbit Bus was likewise bound for Manila from Concepcion, Tarlac. At approximately Kilometer 40 of the North Luzon Expressway in Barangay Lalangan, Plaridel, Bulacan, the two vehicles collided. The front right side of the Philippine Rabbit Bus hit the rear left side of the jeep causing the latter to move to the shoulder on the right and then fall on a ditch with water resulting to further extensive damage. The bus veered to the left and stopped 7 to 8 meters from point of collision. Respondent suffered minor injuries while his driver was unhurt. He was first brought for treatment to the Manila Central University Hospital in Kalookan City by Oscar Buan, the conductor of the Philippine Rabbit Bus, and was later transferred to the Veterans Memorial Medical Center. By reason of such collision, a criminal case was filed before the RTC of Malolos, Bulacan, charging petitioner Manliclic with Reckless Imprudence Resulting in Damage to Property with Physical Injuries, docketed as Crim. Case No. 684-M-89. Subsequently on 2 December 1991, respondent filed a complaint for damages against petitioners Manliclic and PRBLI before the RTC of Dagupan City, docketed as Civil Case No. D-10086. The criminal case was tried ahead of the civil case. Among those who testified in the criminal case were respondent Calaunan, Marcelo Mendoza and Fernando Ramos. In the civil case (now before this Court), the parties admitted the following: 1. The parties agreed on the capacity of the parties to sue and be sued as well as the venue and the identities of the vehicles involved; 2. The identity of the drivers and the fact that they are duly licensed; 3. The date and place of the vehicular collision; 4. The extent of the injuries suffered by plaintiff Modesto Calaunan and the existence of the medical certificate; 5. That both vehicles were going towards the south; the private jeep being ahead of the bus; 6. That the weather was fair and the road was well paved and straight, although there was a ditch on the right side where the jeep fell into.3

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When the civil case was heard, counsel for respondent prayed that the transcripts of stenographic notes (TSNs)4of the testimonies of respondent Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case be received in evidence in the civil case in as much as these witnesses are not available to testify in the civil case. Francisco Tuliao testified that his brother-in-law, respondent Calaunan, left for abroad sometime in November, 1989 and has not returned since then. Rogelio Ramos took the stand and said that his brother, Fernando Ramos, left for Amman, Jordan, to work. Rosalia Mendoza testified that her husband, Marcelo Mendoza, left their residence to look for a job. She narrated that she thought her husband went to his hometown in Panique, Tarlac, when he did not return after one month. She went to her husbands hometown to look for him but she was informed that he did not go there.1awphil.net The trial court subpoenaed the Clerk of Court of Branch 8, RTC, Malolos, Bulacan, the court where Criminal Case No. 684-M-89 was tried, to bring the TSNs of the testimonies of respondent Calaunan,5 Marcelo Mendoza6 and Fernando Ramos7 in said case, together with other documentary evidence marked therein. Instead of the Branch Clerk of Court, it was Enrique Santos Guevara, Court Interpreter, who appeared before the court and identified the TSNs of the three afore-named witnesses and other pertinent documents he had brought.8 Counsel for respondent wanted to mark other TSNs and documents from the said criminal case to be adopted in the instant case, but since the same were not brought to the trial court, counsel for petitioners compromised that said TSNs and documents could be offered by counsel for respondent as rebuttal evidence. For the defendants, petitioner Manliclic and bus conductor Oscar Buan testified. The TSN9 of the testimony of Donato Ganiban, investigator of the PRBLI, in Criminal Case No. 684-M-89 was marked and allowed to be adopted in the civil case on the ground that he was already dead. Respondent further marked, among other documents, as rebuttal evidence, the TSNs10 of the testimonies of Donato Ganiban, Oscar Buan and petitioner Manliclic in Criminal Case No. 684-M-89. The disagreement arises from the question: Who is to be held liable for the collision? Respondent insists it was petitioner Manliclic who should be liable while the latter is resolute in saying it was the former who caused the smash up. The versions of the parties are summarized by the trial court as follows: The parties differed only on the manner the collision between the two (2) vehicles took place. According to the plaintiff and his driver, the jeep was cruising at the speed of 60 to 70 kilometers per hour on the slow lane of the expressway when the Philippine Rabbit Bus overtook the jeep and in the process of overtaking the jeep, the Philippine Rabbit Bus hit the rear of the jeep on the left side. At the time the Philippine Rabbit Bus hit the jeep, it was about to overtake the jeep. In other words, the Philippine Rabbit Bus was still at the back of the jeep when the jeep was hit. Fernando Ramos corroborated the testimony of the plaintiff and Marcelo Mendoza. He said that he was on another jeep following the Philippine Rabbit Bus and the jeep of plaintiff when the incident took place. He said, the jeep of the plaintiff overtook them and the said jeep of the plaintiff was followed by the Philippine Rabbit Bus which was running very fast. The bus also overtook the jeep in which he was riding. After that, he heard a loud sound. He saw the jeep of the plaintiff swerved to the right on a grassy portion of the road. The Philippine Rabbit Bus stopped and they overtook the Philippine Rabbit Bus so that it could not moved (sic), meaning they stopped in front of the Philippine Rabbit Bus. He testified that the jeep of plaintiff swerved to the right because it was bumped by the Philippine Rabbit bus from behind. Both Mauricio Manliclic and his driver, Oscar Buan admitted that the Philippine Rabbit Bus bumped the jeep in question. However, they explained that when the Philippine Rabbit bus was about to go to the left lane to overtake the jeep, the latter jeep swerved to the left because it was to overtake another jeep in front of it. Such was their testimony before the RTC in Malolos in the criminal case and before this Court in the instant case. [Thus, which of the two versions of the manner how the collision took place was correct, would be determinative of who between the two drivers was negligent in the operation of their respective vehicles.]11

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Petitioner PRBLI maintained that it observed and exercised the diligence of a good father of a family in the selection and supervision of its employee, specifically petitioner Manliclic. On 22 July 1996, the trial court rendered its decision in favor of respondent Calaunan and against petitioners Manliclic and PRBLI. The dispositive portion of its decision reads: WHEREFORE, judgment is rendered in favor of the plaintiff and against the defendants ordering the said defendants to pay plaintiff jointly and solidarily the amount of P40,838.00 as actual damages for the towing as well as the repair and the materials used for the repair of the jeep in question; P100,000.00 as moral damages and another P100,000.00 as exemplary damages and P15,000.00 as attorneys fees, including appearance fees of the lawyer. In addition, the defendants are also to pay costs.12 Petitioners appealed the decision via Notice of Appeal to the Court of Appeals.13 In a decision dated 28 September 2001, the Court of Appeals, finding no reversible error in the decision of the trial court, affirmed it in all respects.14 Petitioners are now before us by way of petition for review assailing the decision of the Court of Appeals. They assign as errors the following: I THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE TRIAL COURTS QUESTIONABLE ADMISSION IN EVIDENCE OF THE TSNs AND OTHER DOCUMENTS PRESENTED IN THE CRIMINAL CASE. II THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE TRIAL COURTS RELIANCE ON THE VERSION OF THE RESPONDENT ON HOW THE ACCIDENT SUPPOSEDLY OCCURRED. III THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE TRIAL COURTS UNFAIR DISREGARD OF HEREIN PETITIONER PRBLs DEFENSE OF EXERCISE OF DUE DILIGENCE IN THE SELECTION AND SUPERVISION OF ITS EMPLOYEES. IV THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE TRIAL C OURTS QUESTIONABLE AWARD OF DAMAGES AND ATTORNEYS FEE. With the passing away of respondent Calaunan during the pendency of this appeal with this Court, we granted the Motion for the Substitution of Respondent filed by his wife, Mrs. Precila Zarate Vda. De Calaunan, and children, Virgilio Calaunan, Carmelita Honeycomb, Evelyn Calaunan, Marko Calaunan and Liwayway Calaunan.15 In their Reply to respondents Comment, petitioners informed this Court of a Decision16 of the Court of Appeals acquitting petitioner Manliclic of the charge17 of Reckless Imprudence Resulting in Damage to Property with Physical Injuries attaching thereto a photocopy thereof. On the first assigned error, petitioners argue that the TSNs containing the testimonies of respondent Calaunan,18Marcelo Mendoza19 and Fernando Ramos20 should not be admitted in evidence for failure of respondent to comply with the requisites of Section 47, Rule 130 of the Rules of Court.

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For Section 47, Rule 130 to apply, the following requisites must be satisfied: (a) the witness is dead or unable to testify; (b) his testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests; (c) the former case involved the same subject as that in the present case, although on different causes of action; (d) the issue testified to by the witness in the former trial is the same issue involved in the present case; and (e) the adverse party had an opportunity to cross-examine the witness in the former case.22 Admittedly, respondent failed to show the concurrence of all the requisites set forth by the Rules for a testimony given in a former case or proceeding to be admissible as an exception to the hearsay rule. Petitioner PRBLI, not being a party in Criminal Case No. 684-M-89, had no opportunity to cross-examine the three witnesses in said case. The criminal case was filed exclusively against petitioner Manliclic, petitioner PRBLIs employee. The cases dealing with the subsidiary liability of employers uniformly declare that, strictly speaking, they are not parties to the criminal cases instituted against their employees.23 Notwithstanding the fact that petitioner PRBLI was not a party in said criminal case, the testimonies of the three witnesses are still admissible on the ground that petitioner PRBLI failed to object on their admissibility. It is elementary that an objection shall be made at the time when an alleged inadmissible document is offered in evidence; otherwise, the objection shall be treated as waived, since the right to object is merely a privilege which the party may waive. Thus, a failure to except to the evidence because it does not conform to the statute is a waiver of the provisions of the law. Even assuming ex gratia argumenti that these documents are inadmissible for being hearsay, but on account of failure to object thereto, the same may be admitted and considered as sufficient to prove the facts therein asserted.24 Hearsay evidence alone may be insufficient to establish a fact in a suit but, when no objection is made thereto, it is, like any other evidence, to be considered and given the importance it deserves.25 In the case at bar, petitioner PRBLI did not object to the TSNs containing the testimonies of respondent Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case when the same were offered in evidence in the trial court. In fact, the TSNs of the testimonies of Calaunan and Mendoza were admitted by both petitioners.26Moreover, petitioner PRBLI even offered in evidence the TSN containing the testimony of Donato Ganiban in the criminal case. If petitioner PRBLI argues that the TSNs of the testimonies of plaintiffs witnesses in the criminal case should not be admitted in the instant case, why then did it offer the TSN of the testimony of Ganiban which was given in the criminal case? It appears that petitioner PRBLI wants to have its cake and eat it too. It cannot argue that the TSNs of the testimonies of the witnesses of the adverse party in the criminal case should not be admitted and at the same time insist that the TSN of the testimony of the witness for the accused be admitted in its favor. To disallow admission in evidence of the TSNs of the testimonies of Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case and to admit the TSN of the testimony of Ganiban would be unfair. We do not subscribe to petitioner PRBLIs argument that it will be denied due process when the TSNs of the testimonies of Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case are to be admitted in the civil case. It is too late for petitioner PRBLI to raise denial of due process in relation to Section 47, Rule 130 of the Rules of Court, as a ground for objecting to the admissibility of the TSNs. For failure to object at the proper time, it waived its right to object that the TSNs did not comply with Section 47. In Mangio v. Court of Appeals,27 this Court, through Associate Justice Reynato S. Puno,28 admitted in evidence a TSN of the testimony of a witness in another case despite therein petitioners assertion that he would be denied due process. In admitting the TSN, the Court ruled that the raising of denial of due process in relation to Section 47, Rule 130 of the Rules of Court, as a ground for objecting to the admissibility of the TSN was belatedly done. In so doing, therein petitioner waived his right to object based on said ground. Petitioners contend that the documents in the criminal case should not have been admitted in the instant civil case because Section 47 of Rule 130 refers only to "testimony or deposition." We find such contention to be untenable. Though said section speaks only of testimony and deposition, it does not mean that documents from a former case or proceeding cannot be admitted. Said documents can be admitted they being part of the testimonies of witnesses that have been admitted. Accordingly, they shall be given the same weight as that to which the testimony may be entitled.29
21

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On the second assigned error, petitioners contend that the version of petitioner Manliclic as to how the accident occurred is more credible than respondents version. They anchor their contention on the fact that petitioner Manliclic was acquitted by the Court of Appeals of the charge of Reckless Imprudence Resulting in Damage to Property with Physical Injuries. To be resolved by the Court is the effect of petitioner Manliclics acquittal in the civil case. From the complaint, it can be gathered that the civil case for damages was one arising from, or based on, quasidelict.30 Petitioner Manliclic was sued for his negligence or reckless imprudence in causing the collision, while petitioner PRBLI was sued for its failure to exercise the diligence of a good father in the selection and supervision of its employees, particularly petitioner Manliclic. The allegations read: "4. That sometime on July 12, 1988 at around 6:20 A.M. plaintiff was on board the above-described motor vehicle travelling at a moderate speed along the North Luzon Expressway heading South towards Manila together with MARCELO MENDOZA, who was then driving the same; "5. That approximately at kilometer 40 of the North Luzon Express Way, the above-described motor vehicle was suddenly bumped from behind by a Philippine Rabbit Bus with Body No. 353 and with plate No. CVD 478 then being driven by one Mauricio Manliclic of San Jose, Concepcion, Tarlac, who was then travelling recklessly at a very fast speed and had apparently lost control of his vehicle; "6. That as a result of the impact of the collision the above-described motor vehicle was forced off the North Luzon Express Way towards the rightside where it fell on its drivers side on a ditch, and that as a consequence, the above-described motor vehicle which maybe valued at EIGHTY THOUSAND PESOS (P80,000) was rendered a total wreck as shown by pictures to be presented during the pre-trial and trial of this case; "7. That also as a result of said incident, plaintiff sustained bodily injuries which compounded plaintiffs frail physical condition and required his hospitalization from July 12, 1988 up to and until July 22, 1988, copy of the medical certificate is hereto attached as Annex "A" and made an integral part hereof; "8. That the vehicular collision resulting in the total wreckage of the above-described motor vehicle as well as bodily (sic) sustained by plaintiff, was solely due to the reckless imprudence of the defendant driver Mauricio Manliclic who drove his Philippine Rabbit Bus No. 353 at a fast speed without due regard or observance of existing traffic rules and regulations; "9. That defendant Philippine Rabbit Bus Line Corporation failed to exercise the diligence of a good father of (sic) family in the selection and supervision of its drivers; x x x"31 Can Manliclic still be held liable for the collision and be found negligent notwithstanding the declaration of the Court of Appeals that there was an absence of negligence on his part? In exonerating petitioner Manliclic in the criminal case, the Court of Appeals said: To the following findings of the court a quo, to wit: that accused-appellant was negligent "when the bus he was driving bumped the jeep from behind"; that "the proximate cause of the accident was his having driven the bus at a great speed while closely following the jeep"; x x x We do not agree. The swerving of Calaunans jeep when it tried to overtake the vehicle in front of it was beyond the control of accused-appellant. xxxx

E V I D E N C E N E W S E T | 20
Absent evidence of negligence, therefore, accused-appellant cannot be held liable for Reckless Imprudence Resulting in Damage to Property with Physical Injuries as defined in Article 365 of the Revised Penal Code.32 From the foregoing declaration of the Court of Appeals, it appears that petitioner Manliclic was acquitted not on reasonable doubt, but on the ground that he is not the author of the act complained of which is based on Section 2(b) of Rule 111 of the Rules of Criminal Procedure which reads: (b) Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. In spite of said ruling, petitioner Manliclic can still be held liable for the mishap. The afore-quoted section applies only to a civil action arising from crime or ex delicto and not to a civil action arising from quasi-delict or culpa aquiliana. The extinction of civil liability referred to in Par. (e) of Section 3, Rule 111 [now Section 2 (b) of Rule 111], refers exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same act considered as a quasi-delict only and not as a crime is not extinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused.33 A quasi-delict or culpa aquiliana is a separate legal institution under the Civil Code with a substantivity all its own, and individuality that is entirely apart and independent from a delict or crime a distinction exists between the civil liability arising from a crime and the responsibility for quasi-delicts or culpa extra-contractual. The same negligence causing damages may produce civil liability arising from a crime under the Penal Code, or create an action for quasi-delicts or culpa extra-contractual under the Civil Code.34 It is now settled that acquittal of the accused, even if based on a finding that he is not guilty, does not carry with it the extinction of the civil liability based on quasi delict.35 In other words, if an accused is acquitted based on reasonable doubt on his guilt, his civil liability arising from the crime may be proved by preponderance of evidence only. However, if an accused is acquitted on the basis that he was not the author of the act or omission complained of (or that there is declaration in a final judgment that the fact from which the civil might arise did not exist), said acquittal closes the door to civil liability based on the crime or ex delicto. In this second instance, there being no crime or delict to speak of, civil liability based thereon or ex delicto is not possible. In this case, a civil action, if any, may be instituted on grounds other than the delict complained of. As regards civil liability arising from quasi-delict or culpa aquiliana, same will not be extinguished by an acquittal, whether it be on ground of reasonable doubt or that accused was not the author of the act or omission complained of (or that there is declaration in a final judgment that the fact from which the civil liability might arise did not exist). The responsibility arising from fault or negligence in a quasi-delict is entirely separate and distinct from the civil liability arising from negligence under the Penal Code.36 An acquittal or conviction in the criminal case is entirely irrelevant in the civil case37 based on quasi-delict or culpa aquiliana. Petitioners ask us to give credence to their version of how the collision occurred and to disregard that of respondents. Petitioners insist that while the PRBLI bus was in the process of overtaking respondents jeep, the latter, without warning, suddenly swerved to the left (fast) lane in order to overtake another jeep ahead of it, thus causing the collision. As a general rule, questions of fact may not be raised in a petition for review. The factual findings of the trial court, especially when affirmed by the appellate court, are binding and conclusive on the Supreme Court.38 Not being a trier of facts, this Court will not allow a review thereof unless: (1) the conclusion is a finding grounded entirely on speculation, surmise and conjecture; (2) the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) the Court of Appeals went beyond the issues of the case and its findings are contrary to the admissions of both appellant and appellees; (7) the findings of fact of the Court of Appeals are contrary to those of the trial court; (8) said findings of fact are conclusions without citation of specific evidence on which they are based; (9) the facts set forth in the petition as well as in the petitioner's main and

E V I D E N C E N E W S E T | 21
reply briefs are not disputed by the respondents; and (10) the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record.39 After going over the evidence on record, we do not find any of the exceptions that would warrant our departure from the general rule. We fully agree in the finding of the trial court, as affirmed by the Court of Appeals, that it was petitioner Manliclic who was negligent in driving the PRBLI bus which was the cause of the collision. In giving credence to the version of the respondent, the trial court has this say: x x x Thus, which of the two versions of the manner how the collision took place was correct, would be determinative of who between the two drivers was negligent in the operation of their respective vehicle. In this regard, it should be noted that in the statement of Mauricio Manliclic (Exh. 15) given to the Philippine Rabbit Investigator CV Cabading no mention was made by him about the fact that the driver of the jeep was overtaking another jeep when the collision took place. The allegation that another jeep was being overtaken by the jeep of Calaunan was testified to by him only in Crim. Case No. 684-M-89 before the Regional Trial Court in Malolos, Bulacan and before this Court. Evidently, it was a product of an afterthought on the part of Mauricio Manliclic so that he could explain why he should not be held responsible for the incident. His attempt to veer away from the truth was also apparent when it would be considered that in his statement given to the Philippine Rabbit Investigator CV Cabading (Exh. 15), he alleged that the Philippine Rabbit Bus bumped the jeep of Calaunan while the Philippine Rabbit Bus was behind the said jeep. In his testimony before the Regional Trial Court in Malolos, Bulacan as well as in this Court, he alleged that the Philippine Rabbit Bus was already on the left side of the jeep when the collision took place. For this inconsistency between his statement and testimony, his explanation regarding the manner of how the collision between the jeep and the bus took place should be taken with caution. It might be true that in the statement of Oscar Buan given to the Philippine Rabbit Investigator CV Cabading, it was mentioned by the former that the jeep of plaintiff was in the act of overtaking another jeep when the collision between the latter jeep and the Philippine Rabbit Bus took place. But the fact, however, that his statement was given on July 15, 1988, one day after Mauricio Manliclic gave his statement should not escape attention. The one-day difference between the giving of the two statements would be significant enough to entertain the possibility of Oscar Buan having received legal advise before giving his statement. Apart from that, as between his statement and the statement of Manliclic himself, the statement of the latter should prevail. Besides, in his Affidavit of March 10, 1989, (Exh. 14), the unreliability of the statement of Oscar Buan (Exh. 13) given to CV Cabading rear its "ugly head" when he did not mention in said affidavit that the jeep of Calaunan was trying to overtake another jeep when the collision between the jeep in question and the Philippine Rabbit bus took place. xxxx If one would believe the testimony of the defendant, Mauricio Manliclic, and his conductor, Oscar Buan, that the Philippine Rabbit Bus was already somewhat parallel to the jeep when the collision took place, the point of collision on the jeep should have been somewhat on the left side thereof rather than on its rear. Furthermore, the jeep should have fallen on the road itself rather than having been forced off the road. Useless, likewise to emphasize that the Philippine Rabbit was running very fast as testified to by Ramos which was not controverted by the defendants.40 Having ruled that it was petitioner Manliclics negligence that caused the smash up, there arises the juris tantum presumption that the employer is negligent, rebuttable only by proof of observance of the diligence of a good father of a family.41 Under Article 218042 of the New Civil Code, when an injury is caused by the negligence of the employee, there instantly arises a presumption of law that there was negligence on the part of the master or employer either in the selection of the servant or employee, or in supervision over him after selection or both. The liability of the employer under Article 2180 is direct and immediate; it is not conditioned upon prior recourse against the negligent employee and a prior showing of the insolvency of such employee. Therefore, it is incumbent upon the private respondents to prove that they exercised the diligence of a good father of a family in the selection and supervision of their employee.43 In the case at bar, petitioner PRBLI maintains that it had shown that it exercised the required diligence in the selection and supervision of its employees, particularly petitioner Manliclic. In the matter of selection, it showed the screening process that petitioner Manliclic underwent before he became a regular driver. As to the exercise of

E V I D E N C E N E W S E T | 22
due diligence in the supervision of its employees, it argues that presence of ready investigators (Ganiban and Cabading) is sufficient proof that it exercised the required due diligence in the supervision of its employees. In the selection of prospective employees, employers are required to examine them as to their qualifications, experience and service records. In the supervision of employees, the employer must formulate standard operating procedures, monitor their implementation and impose disciplinary measures for the breach thereof. To fend off vicarious liability, employers must submit concrete proof, including documentary evidence, that they complied with everything that was incumbent on them.44 In Metro Manila Transit Corporation v. Court of Appeals,45 it was explained that: Due diligence in the supervision of employees on the other hand, includes the formulation of suitable rules and regulations for the guidance of employees and the issuance of proper instructions intended for the protection of the public and persons with whom the employer has relations through his or its employees and the imposition of necessary disciplinary measures upon employees in case of breach or as may be warranted to ensure the performance of acts indispensable to the business of and beneficial to their employer. To this, we add that actual implementation and monitoring of consistent compliance with said rules should be the constant concern of the employer, acting through dependable supervisors who should regularly report on their supervisory functions. In order that the defense of due diligence in the selection and supervision of employees may be deemed sufficient and plausible, it is not enough to emptily invoke the existence of said company guidelines and policies on hiring and supervision. As the negligence of the employee gives rise to the presumption of negligence on the part of the employer, the latter has the burden of proving that it has been diligent not only in the selection of employees but also in the actual supervision of their work. The mere allegation of the existence of hiring procedures and supervisory policies, without anything more, is decidedly not sufficient to overcome such presumption. We emphatically reiterate our holding, as a warning to all employers, that "the formulation of various company policies on safety without showing that they were being complied with is not sufficient to exempt petitioner from liability arising from negligence of its employees. It is incumbent upon petitioner to show that in recruiting and employing the erring driver the recruitment procedures and company policies on efficiency and safety were followed." x x x. The trial court found that petitioner PRBLI exercised the diligence of a good father of a family in the selection but not in the supervision of its employees. It expounded as follows: From the evidence of the defendants, it seems that the Philippine Rabbit Bus Lines has a very good procedure of recruiting its driver as well as in the maintenance of its vehicles. There is no evidence though that it is as good in the supervision of its personnel. There has been no iota of evidence introduced by it that there are rules promulgated by the bus company regarding the safe operation of its vehicle and in the way its driver should manage and operate the vehicles assigned to them. There is no showing that somebody in the bus company has been employed to oversee how its driver should behave while operating their vehicles without courting incidents similar to the herein case. In regard to supervision, it is not difficult to observe that the Philippine Rabbit Bus Lines, Inc. has been negligent as an employer and it should be made responsible for the acts of its employees, particularly the driver involved in this case. We agree. The presence of ready investigators after the occurrence of the accident is not enough to exempt petitioner PRBLI from liability arising from the negligence of petitioner Manliclic. Same does not comply with the guidelines set forth in the cases above-mentioned. The presence of the investigators after the accident is not enough supervision. Regular supervision of employees, that is, prior to any accident, should have been shown and established. This, petitioner failed to do. The lack of supervision can further be seen by the fact that there is only one set of manual containing the rules and regulations for all the drivers of PRBLI. 46 How then can all the drivers of petitioner PRBLI know and be continually informed of the rules and regulations when only one manual is being lent to all the drivers?

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For failure to adduce proof that it exercised the diligence of a good father of a family in the selection and supervision of its employees, petitioner PRBLI is held solidarily responsible for the damages caused by petitioner Manliclics negligence. We now go to the award of damages. The trial court correctly awarded the amount of P40,838.00 as actual damages representing the amount paid by respondent for the towing and repair of his jeep.47 As regards the awards for moral and exemplary damages, same, under the circumstances, must be modified. The P100,000.00 awarded by the trial court as moral damages must be reduced to P50,000.00.48 Exemplary damages are imposed by way of example or correction for the public good.49 The amount awarded by the trial court must, likewise, be lowered to P50,000.00.50 The award of P15,000.00 for attorneys fees and expenses of litigation is in order and authorized by law.51 WHEREFORE, premises considered, the instant petition for review is DENIED. The decision of the Court of Appeals in CA-G.R. CV No. 55909 is AFFIRMED with the MODIFICATION that (1) the award of moral damages shall be reduced to P50,000.00; and (2) the award of exemplary damages shall be lowered to P50,000.00. Costs against petitioners.SO ORDERED

E V I D E N C E N E W S E T | 24
SOLEDAD E. DIZON, G.R. No. 172167 - versus RODRIGO G. TUAZON and ESTRELLA M. TUAZON, Respondents.

July 9, 2008

x---------------------------------------------------------------------------x DECISION TINGA, J.: This is a Petition for Review[1] of the Decision[2] and Resolution[3] of the Court of Appeals in CA-G.R. CV No. 79523 dated 26 January 2006 and 31 March 2006, respectively, which reversed and set aside the Decision[4] of the Regional Trial Court ofTarlac City, Branch 63 dated 19 May 2003. The facts of the case, as culled from the decisions of the lower courts, follow. Petitioners are the heirs of Segundo Espinosa (Segundo), owner of one-half undivided share[5] in two parcels of land individually covered by OCT No. 0-279[6] and TCT No. 38284[7] and both situated in Brgy. Tibag, Tarlac, Tarlac. When Segundo was widowed, he cohabited with one Laureana Bondoc and sired Estrella Tuazon (Estrella), one of the respondents in this case. In 1988, petitioner Soledad Dizon (Soledad), daughter of Segundo, discussed with her brother the transfer of the properties in their name. They informed Segundo of their plan and the latter agreed. However, Segundo told them that the titles of the properties were in the name of the spouses Estrella and respondent Rodrigo Tuazon (Rodrigo). Soledad inquired from respondents and was told that they had already bought the subject property. Soledad went to the Register of Deeds and was able to secure copies of the Deed of Absolute Sale and Affidavit of Non-tenancy allegedly executed by Segundo in favor of respondents. In 1990, respondents also allegedly prepared an Agreement of Subdivision and made it appear therein that Segundo had signed and executed the same. When Segundo was shown the documents, he claimed that he was fooled by respondents to enter into the transaction and that his signature had been forged. He met with a certain Atty. Conrado Genilo, the lawyer who notarized the documents, and was informed that he had merely notarized the said documents prepared by his secretary. Atty. Genito also told Segundo that he was willing to testify in his favor. The parties brought the matter to the barangay for conciliation but no settlement was reached. Hence, Segundo prepared and signed a complaint for annulment of the Deed of Absolute Sale, the Affidavit of Nontenancy and the Agreement of Subdivision. However, the complaint was not filed in court because Segundo fell ill and Soledad was then working abroad. Segundo died on 16 October 1995. Petitioners filed a complaint for declaration of nullity of sale and damages against respondents on 16 November 1995. They claimed that respondents fraudulently prepared the three documents, namely, the Deed of Absolute Sale dated 30 August 1985,[8] the Affidavit of Non-tenancy dated 30 August 1985[9] and the Agreement of Subdivision dated 21 February 1990,[10] in all of which respondents made it appear that Segundo had signed, executed and acknowledged the said documents before a notary public. Respondents claimed that when Segundos mortgage obligation to Philippine National Bank (PNB)[11] fell due, he sought financial assistance from respondents in order to avert the foreclosure of the mortgage. They obliged and made several payments on the mortgage debt. In return, Segundo promised to transfer to respondent Estrella his share in the mortgaged properties, which he fulfilled when he freely delivered to her and her husband the Deed of Absolute Sale and Affidavit of Non-tenancy in 1985. Respondents also alleged that in 1990, Segundo executed the Agreement of Subdivision to effect the actual conveyance of title to the properties subject of the sale.[12] The trial court rendered its judgment on 19 May 2003, holding that the signatures appearing in the documents were not Segundos and granting the reliefs prayed for in the complaint. It declared as null and void the Deed of Absolute Sale, the Affidavit of Non-tenancy,

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and the Agreement of Subdivision, and accordingly ordered the cancellation of the titles to the properties in respondents names and the restoration of the former titles. It also ordered petitioners to pay the litigation expenses and attorneys fees.[13] Respondents appealed the decision to the Court of Appeals, which in turn reversed the decision of the trial court.[14] According to the Court of Appeals, petitioners were unable to establish the charge of forgery by a preponderance of evidence. Before us, petitioners contend that the Court of Appeals erred when it reversed the judgment of the trial court. They claim that it disregarded the evaluation made by the trial court and instead gave credence to the testimonies of the witnesses who testified that they saw Segundo sign the questioned deed.[15] Moreover, the appellate court allegedly failed to consider petitioners evidence proving the charge of falsification, to wit: (1) the NBI report which stated that the signatures S. Espinosa and Segundo Espinosa were written by two different persons; (2) the combined testimony of petitioner Soledad and Theodore Espinosa (Theodore), Segundos grandson, that the signature of Segundo was falsified; (3) the memorandum of the proceedings before the Office of the Barangay Lupon of Tibag, Tarlac which established the fact that Segundo had already questioned the genuiness of his signature as early as 27 September 1989; and (4) the fact that despite the alleged sale, the tenants on the land continued paying rentals to them.[16]Petitioners also claim that the Court of Appeals misconstrued respondents possession of the PNB receipts as proof of their having purchased the property for valuable consideration, because they gained access to the said receipts only after Segundo and the mother of Estrella had started to live together.[17] For the same reason, according to petitioners, respondents gained access to the owners copies of TCT No. 38284 and OCT No. 0-279 and thus, it could not be said that Segundo had voluntarily given the documents to them.[18] For their part, respondents claim that petitioners gave a constricted statement of the matters involved since they relied completely and only on the findings of the trial court.[19] They defend the decision of the Court of Appeals, noting that the latter has made a thorough evaluation and analysis of the documentary evidence and the testimonies of the witnesses.[20] The determination of whether Segundos signature was forged is a question of fact which calls for a review of the evidence presented by the parties. While such determination is usually not within the Courts domain, we will delve into factual issues in this case due to the conflicting findings of the Court of Appeals and of the trial court.[21] In ruling that Segundos signature in the subject documents is a forgery, the trial court based its conclusion on the NBI Report[22] which stated that the abbreviated signature in the Agreement of Subdivision and the standard sample signatures of Segundo were not affixed by one and the same person; hence, the document is falsified.[23] Anent the Deed of Sale and the Affidavit of Non-tenancy, the trial court concluded that the signatures therein could not have been Segundos because Segundo always affixed his signature by writing his full name and surname.[24] It also gave credence to the testimonies of Soledad, Theodore and the other witnesses who identified the genuine signatures of Segundo.[25] It noted that the only iota of evidence presented by petitioners was a piece of mimeographed paper with a handwritten name S. Espinosa, which the trial court found to be not Segundos signature but rather of the clerk who made the entry.[26] In addition, the trial court noted that as early as 27 September 1989, Segundo had already questioned the supposed sale of the property to respondents and hence, he could not have agreed to sign and execute the Agreement of Subdivision dated 21 February 1990.[27] On the contrary, the Court of Appeals ruled that petitioners were unable to establish their claim by preponderance of evidence, save for their assertion that the signature of Segundo was falsified because it was not the latters usual signature. Even the NBI report stated that no definite opinion of falsification/forgery could be rendered on the questioned signatures appearing in the Deed of Absolute Sale since the sample signatures could not serve as sufficient basis for a scientific comparative examination. The appellate court noted that while petitioners claim that the abbreviated signature of Segundo was forged, they nevertheless could not explain the appearance of the full signature of Segundo in the second page of the document. Thus, the Court of Appeals concluded that if Segundo had signed the second page, it follows that he likewise signed the first page except that he signed it in abbreviated form.[28]

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The Court of Appeals also gave credence to the testimonies of Marino Tabaquero (Tabaquero), the secretary of the notary public who personally witnessed Segundo affix his signature, and respondent Rodrigo, the buyer of the subject property who was likewise present when Segundo signed the documents.[29] It took into consideration respondents possession of the original PNB receipts, proof that they were the ones who secured the release of the mortgage and which, in turn, is evidence of the valuable consideration for which the Deed of Sale was executed.[30] The appellate court also noted that in July 1986, the sale was inscribed at the back of the title of the subject property which proves that the owners copy of the certificates of title was surrendered and presented to the Register of Deeds; thus, as of 1986, Segundo already had constructive notice of the alleged falsification/forgery but did not take the necessary legal steps to annul the deed.[31] Finally, the appellate court held that petitioners failed to overcome the legal presumption of authenticity and due execution of the Deed of Absolute Sale, it being a notarized document.[32] The petition must be denied. As notarized documents, the Deed of Absolute Sale, the Affidavit of Non-tenancy, and the Agreement of Subdivision carry evidentiary weight conferred upon them with respect to their due execution and enjoy the presumption of regularity which may only be rebutted by evidence so clear, strong and convincing as to exclude all controversy as to falsity. Absent such evidence, the presumption must be upheld. The burden of proof to overcome the presumption of due execution of a notarized document lies on the one contesting the same.[33] To recapitulate, petitioners rely on the following evidence in support of their case: (i) the NBI Report which concluded that the S. Espinosa in the Agreement of Subdivision and the Segundo Espinosa in the sample signatures were not written by one and the same person; (ii) the combined testimony of Soledad and Theodore, who both claimed familiarity with Segundos signature, that the signatures appearing in the questioned documents were affixed by Segundo; (iii) the memorandum of the barangay luponproceedings captioned Isang Paglilipat Pansin (Endorsement) dated 27 September 1989 relative to the questioned Deed of Absolute Sale;[34] and (iv) the fact that the rent payments on the land purportedly sold to respondents were being paid to petitioners despite the alleged sale. However, these pieces of evidence, these are not enough to overcome the presumption of regularity in the execution and validity of the questioned deeds. Hence, we are inclined to agree with the findings of the Court of Appeals. In the first place, the court is not bound by the findings of a handwriting expert. Expert opinion evidence is to be considered or weighed by the court like any other testimony, in the light of its own general knowledge and experience upon the subject of inquiry.[35] The probative force of the testimony of an expert does not lie in a mere statement of his theory or opinion, but rather in the aid that he can render to the courts in showing the facts which serve as a basis for his criterion and the reasons upon which the logic of his conclusion is founded.[36] The handwriting expert gave only a definitive conclusion as to Segundos signature in the Agreement of Subdivision, and not in the Affidavit of Non-tenancy or more importantly in the Deed of Absolute Sale.[37] An accurate examination to determine forgery should dwell on both the differences and similarities between the questioned signatures.[38] Obviously, the abbreviated signature is different from the full signature presented by petitioners. However, we find that there are only slight dissimilarities between the surname Espinosa in the questioned documents and in the samples. These slight dissimilarities do not indicate forgery for these are natural, expected and inevitable variations in genuine signatures made by one and the same person.[39] Even Segundos sample signatures submitted by petitioners show cl ear variations in structure, flourish and size. The passage of time and a persons increase in age may have decisive influences in his writing characteristics and so, in order to bring about an accurate comparison and analysis, the standards of comparison must be as close as possible in point and time to the suspected signature.[40] This was in fact the reason why the handwriting expert stated in her report that no definite opinion of falsification/forgery could be rendered on the questioned signatures appearing in the Deed of Absolute Sale since the sample signatures submitted could not serve as sufficient basis for a scientific comparative examination.[41] We also note that petitioners were unable to rebut the genuineness of the full signature appearing on the second page of the Deed of Absolute Sale, which signature we observe to be similar to Segundos sample/specimen signatures. Neither are we swayed by the testimonies of Soledad and Theodore, who both professed that Segundo always signed his name in full and not by mere initials. These testimonies alone do not lead to the conclusion that the signatures appearing in the questioned documents were forged. Besides, Soledads testimony that Segundo one told her that he had never signed the questioned documents[42] is hearsay, as this was not of her

E V I D E N C E N E W S E T | 27
own personal knowledge but was rather narrated merely to her. We are more inclined to believe the testimony of Tabaquero and Rodrigo, who both personally witnessed Segundo affix his signature. Tabaquero testified that when he called Segundos attention to the difference in the signatures on page one and page two of the Deed of Absolute Sale, Segundo answered, Yanaman yan, ana ( That is just the same. That is my signature.)[43] Rodrigo, for his part, stated that he heard Tabaqueros comment on the dissimilarity of the signatures as well as Segundos reply, This is the same.[44] Furthermore, even if the endorsement from the Barangay Lupon is indeed proof that as early as 1989 there has already been a dispute between Segundo and respondents concerning the sale, nowhere in the said document is it mentioned that Segundo claimed the forgery of his signature. Instead, we read that the issue in the barangay proceedings is the amount actually paid by respondents and petitioners desire to repurchase the property. Thus: Bagamat sa pandinig ng mga bagay na ito dito sa barangay, waring ninanais malaman ng mga nanghahabulan kung magkano naman ang ipinaabot o ibinayad ng mga bumili sa nagbili at hangad nilang matubos kung saka-sakali man ang nabanggit na mahalagang ari-arian.[45]

The claim that rental payments of one of the tenants of the subject properties were given to Segundo and, after his death, toSoledad likewise does not point to the conclusion that Segundos signature was forged. A final note. Petitioners claim that Atty. Genilo, the lawyer who notarized the questioned documents, was willing to testify in their favor. However, despite their opportunity to present and even compel him to testify as their witness, petitioners nevertheless failed to do so despite the fact that his testimony is crucial to the determination of whether Segundo appeared before him and actually signed the questioned documents. WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated 26 January 2006 is AFFIRMED. Costs against petitioners. SO ORDERED.

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[G.R. NO. 176358 : June 17, 2008] BIENVENIDO LIBRES and JULIE L. PANINGBATAN, Petitioner, v. SPOUSES RODRIGO DELOS SANTOS and MARTINA OLBA, Respondents. DECISION YNARES-SANTIAGO, J.: This Petition for Review on Certiorari assails the September 11, 2006 Decision1 of the Court of Appeals in CAG.R. CV No. 65722 reversing and setting aside the Decision2 of the Regional Trial Court of Lingayen, Pangasinan, Branch 68, in Civil Case No. 17416 holding petitioners liable to respondents as follows: WHEREFORE, the appealed Decision is hereby REVERSED and SET ASIDE and a new one entered ordering appellees Bienvenido Libres and Julie Paningbatan to jointly pay the appellants, within ninety (90) days from notice the sum of P150,000.00 together with legal interest at twelve percent (12%) per annum from August 18, 1995 until the obligation is fully paid. In case of non-payment, the mortgaged property shall be sold on public auction in accordance with Rule 68 of the Rules of Court. SO ORDERED.3 Also assailed is the January 17, 2007 Resolution4 denying the motion for reconsideration. As found by the appellate court, the factual background of the case is as follows: On August 18, 1995, the appellants (spouses Rodrigo and Martina delos Santos) filed with the court a quo a Complaint for foreclosure of mortgage against the appellees (Bienvenido Libres and Julie Paningbatan), alleging that appellee Bienvenido Libres executed, in favor of the appellants, three separate deeds of Real Estate Mortgage5 to secure the payment of three loans in the total amount of One Hundred Fifty Thousand Pesos (P150,000.00), which amounts were supposedly delivered by the appellants to appellee Julie L. Paningbatan, upon the instructions of appellee Bienvenido Libres. According to the appellants, the appellees violated the terms of the mortgage when they failed to pay the principal loan and the accrued interests. The appellants prayed for the court a quo to render judgment ordering the appellees to pay the principal loan plus the stipulated interests, attorney's fees, expenses and costs. Alternatively, in default of such payment, the appellants prayed that the mortgaged property be ordered sold with the proceeds thereof applied to the mortgage debt, accumulated interests, attorney's fees, expenses and costs. On September 20, 1995, appellees filed their Answer (prepared and signed by appellee Bienvenido Libres) and, except for the qualifications of the parties and the identity of the property involved, appellees denied all the rest of the allegations in the Complaint. Appellees claimed that the documents were falsified and their signatures appearing therein were forged. Moreover, appellee Bienvenido Libres claimed that he never authorized appellee Julie L. Paningbatan to represent him in such "anomalous" transactions. To prove his claim, appellee Bienvenido Libres requested that his signatures in the documents be examined by a handwriting expert of the National Bureau of Investigation. As relief, the appellees prayed that the case be dismissed with cost against the plaintiffs and that they be paid the amount of P20,000.00 as and by way of moral and exemplary damages and litigation expenses. During the trial on the merits, the appellants presented two notaries public; an officer from the Registry of Deeds of Lingayen, Pangasinan; three barangayofficials who presided and witnessed the barangay confrontation between the appellants and the appellees; and appellant Martina delos Santos herself. The evidence of the appellants showed that appellees borrowed from the appellants the total amount of One Hundred Fifty Thousand Pesos (P150,000.00) which was delivered in three installments: P25,000.00 on October 23, 1993, P75,000.00 on January 18, 1994, and P50,000.00 on February 10, 1994. As security for the loan, appellee Bienvenido Libres executed three deeds of Real Estate Mortgage, the due execution of which was

E V I D E N C E N E W S E T | 29
attested to by the administering notaries public. The deeds were likewise duly registered with the Office of the Register of Deeds of Lingayen, Pangasinan. In violation of the terms of the Real Estate Mortgage, appellees failed to pay the principal amount and the accrued interests. Formal demand was made but despite receipt thereof, appellees refused to make any payment. Thus, Complaints were filed by the appellants with the barangay against the appellees. Allegedly, during the barangay confrontation, the appellees admitted their indebtedness and promised that they would pay. But no payment was made by the appellees. For their part, appellees disputed the supposed loan in the amount of P150,000.00. Appellee Bienvenido Libres denied his signature in the Real Estate Mortgage and denied that he appeared before the notaries public to execute any document. Rather, according to appellee Julie Paningbatan, she was the one who transacted with appellant Martina delos Santos, and what she borrowed from the appellants was only P13,000.00. Furthermore, according to appellee Julie Paningbatan, she caused the execution of a different Real Estate Mortgage although similarly dated on October 30, 1993 but it was her godfather, a certain Engr. Carlo Marias who signed the name of appellee Bienvenido Libres. Also, appellee Julie Paningbatan denied that her father admitted in the barangay confrontation that he owed the appellants in the amount of P35,000.00. Instead, she was the one who admitted the indebtedness to Martina delos Santos of more or less P25,000.00 including interest. To support their defense, appellees presented Adelia C. Demetillo, Senior Document Examiner of the National Bureau of Investigation (NBI), who was qualified as an expert witness. Said witness submitted to the court a quoQuestioned Documents Report No. 545-697 dated July 4, 1997. According to said handwriting expert, the signature of appellee Bienvenido Libres in the questioned Real Estate Mortgage appears to be different from said appellee's sample and standard signatures. The same finding was made with respect to the signature of one of the witnesses to the contract, Gloria Libres.6 (Names in emphasis supplied) Respondent Martina Olba testified during trial that petitioners are her "barangaymates"; that her husband Rodrigo is an overseas contract worker; that on October 23, 1993, petitioners came to her house asking for a loan in the amount of P150,000.00 for the medical expenses of Libres' wife Maria Laverosa; that she told them she had only P25,000.00 cash that day; that she asked for collateral, and Bienvenido Libres (Libres) agreed to constitute a mortgage on their home situated at a 267 square meter unregistered lot in Zamora Street, Mangatarem, Pangasinan (the subject property); that she handed the money to Julie Paningbatan (Paningbatan) who brought the money to Manila; that on October 30, 1993, they proceeded to the residence of notary public Filipina Lapurga Cardenas (Cardenas) who prepared and notarized the mortgage deed (the first deed) which was signed by Libres and his children Juancho (or Pancho) and Gloria Libres as witnesses; that in January 1994, petitioners again came to her house to borrow money for Maria's alleged eye operation; that they again proceeded to Cardenas' residence, and the latter prepared and notarized another mortgage deed (the second deed) which was signed by Libres and his children Juancho (or Pancho) and Gloria Libres as witnesses; that again, Libres came to her to borrow P50,000.00; this time, Cardenas was in Manila, so they proceeded to Atty. Lester Escobar (Atty. Escobar) for the notarization and acknowledgment of the third mortgage deed; that petitioners paid only a total of P5,000.00 by way of interest, prompting her to make a formal demand for the return of the whole amount of P150,000.00 loaned out to them; that petitioners failed to perform their obligation, and so the matter was brought to the attention of the barangayauthorities.7 The two notaries public who notarized the three mortgage deeds, Cardenas and Atty. Escobar, testified during trial that Libres, together with his witnesses as well as respondent Martina, signed the subject mortgage deeds and acknowledged the same in their presence. More particularly, Cardenas testified that Libres - together with his witnesses Pancho Libres and Gloria Libres, as well as respondent Martina - personally went to her house in the morning of October 30, 1993 and asked her to prepare a deed of real estate mortgage over a house and lot which she (Cardenas) herself knew (she claims to have seen the same since it is located within twenty houses from where she lived); that Libres personally wrote his Community Tax Certificate (CTC) number on said deed (the first deed, or the October 30, 1993 mortgage document); that on January 18, 1994, Libres, Martina, Pancho Libres and Gloria Libres again came to her house to execute another deed of real estate mortgage over the same property for an additional consideration, which she prepared and notarized after the parties signed and acknowledged the same in her presence; that she knows the signature in said deeds to be Libres' because the latter personally affixed his signature upon said documents

E V I D E N C E N E W S E T | 30
"in front of her"; and that she explained the contents of the said documents in the Ilocano dialect, which Libres and the parties to the documents knew and understood.8 Atty. Escobar, on the other hand, testified that with respect to the third mortgage deed (dated February 10, 1994), he personally confirmed Libres' identity by specifically asking him of the same; that he compared Libres' signature in the Tax Declaration to the property and in his residence certificate or CTC; and that both documents were translated in the Ilocano dialect and explained to Libres as to be fully understood by the latter.9 It was shown as well during trial that on the occasion of conciliation proceedings held at the barangay level, petitioners admitted to Barangay Captain Henry Evangelista that they borrowed money from the respondents,10 and petitioner Libres offered to pay respondents with a portion of the subject property, which offer the latter declined.11 On the other hand, petitioners - as defendants a quo - presented as their first witness Mrs. Adela Demetillo, Senior Document Examiner II of the National Bureau of Investigation (NBI), who conducted an examination and evaluation of the signatures of Libres and his witnesses (Pancho and Gloria Libres) in the questioned mortgage deeds as well as specimens of their respective signatures. Her findings are contained in a Report12 which essentially reads, thus: FINDINGS: Comparative examination made on the specimens submitted under the stereoscopic microscope, magnifying lens and with the aid of photographic enlargement reveals the following: 1. There are significant fundamental differences in handwriting characteristics existing between the questioned and the standard/sample signatures "B.A. LIBRES/BIENVENIDO LIBRES," such as in: - manner of execution - structural formation of letters - other minute identifying details 2. There are significant fundamental differences in handwriting characteristics existing between the questioned and the standard/sample signatures "GLORIA LIBRES/G.L. LIBRES," such as in: - manner of execution - structural formation of letters - other minute identifying details 3. No definite opinion can be rendered on the questioned signatures "JUANCHO L. LIBRES" as the standard/sample signatures submitted are insufficient/inappropriate to serve as basis for a scientific comparative examination. CONCLUSION: 1. The questioned and the standard/sample signatures "B.A. LIBRES BIENVENIDO LIBRES" were NOT WRITTEN by one and the same person. 2. The questioned and the standard/sample signatures "GLORIA LIBRES/G.L. LIBRES" were NOT WRITTEN by one and the same person. 3. No definite opinion can be rendered, per above FINDINGS 3.

E V I D E N C E N E W S E T | 31
REMARKS: All the specimens submitted are forwarded to the Records Section of this Bureau in the meantime, for safekeeping.13 For his part, Libres testified that he knows the respondents who are residents of the same barangay where he resides; that he owns the subject property, which is where he and his family reside; that he knew notary public Cardenas, but denies having appeared before her as well as before Atty. Escobar; that petitioner Paningbatan is her daughter; that he denies having executed the three questioned mortgage deeds; that he admits having appeared at conciliation proceedings before the barangay captain; and that knowing that his signatures on the mortgage deeds were forged, he nevertheless did not file a criminal case against those responsible due to financial constraints.14 Petitioner Paningbatan, on the other hand, testified that she was the one who obtained a loan from respondents in the amount of P13,000.00, and not P150,000.00 which respondents claim; that the said amount was for the purpose of redeeming her godfather, the late Engr. Carlo Marias' vehicle which was pawned to a certain Mrs. Margate; that in order to secure the payment thereof, she executed a deed of mortgage dated October 30, 1993 over her father Bienvenido Libres' house and lot (the subject property), but that it was her godfather Engr. Marias who signed - forged - her father's signature on said mortgage deed; that she was able to secure her father's CTC and the Tax Declaration to the property; that she did all these without the knowledge and consent of her father; that it is not true that her father secured a loan from respondents in the total amount of P150,000.00 in order to pay for her mother's medical expenses in relation to the latter's eye and pulmonary problems; that it was her sister and brother-in-law who paid for her mother's medical expenses; that she knows nothing of the three mortgage deeds in issue; that she, together with her father, attended conciliation proceedings at the barangay level.15 Petitioners, however, did not call on the alleged witnesses to the mortgage deeds, Pancho and Gloria Libres, to testify in their behalf. On November 3, 1999, the trial court rendered its Decision16 dismissing the case. The dispositive portion thereof reads as follows: WHEREFORE, in view of the foregoing, judgment is hereby rendered: 1. Ordering the dismissal of this instant case against the defendants Bienvenido Libres and Julie Paningbatan with cost against the plaintiffs; andcralawlibrary 2. Ordering the plaintiffs to pay jointly and severally defendants moral and exemplary damages in the sum of P20,000.00, and P10,000.00, respectively, as well as litigation expenses of P10,000.00. SO ORDERED.17 Respondents filed their appeal with the Court of Appeals, which rendered the assailed Decision and Resolution reversing the trial court's decision. The sole issue for resolution in the instant petition is: WHETHER THE LOANS EXTENDED IN FAVOR OF THE PETITIONERS ARE SECURED BY A VALID AND LEGAL REAL ESTATE MORTGAGE, WHEN IT WAS PROVEN DURING THE TRIAL THAT THE ABSOLUTE OWNER THEREOF WAS NOT THE ONE WHO SIGNED THE DEED OF REAL ESTATE MORTGAGE, MUCH LESS AUTHORIZED HIS OWN DAUGHTER TO VALIDLY CONTRACT THE SAME. Petitioners insist that Libres did not execute the three mortgage deeds sued upon, and that his signatures therein are mere forgeries. Hence, there should be no mortgage upon the property that may be the object of respondents' foreclosure suit; that the trial court was correct in dismissing the same.

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In ordering the dismissal of the case, the trial court gave more weight to the NBI handwriting expert's opinion that it was possible that Libres' signatures in the three mortgage deeds in question could have been forged; that since Bienvenido Libres did not sign the mortgage deeds, respondents' claimed loan credits should be negated; thus, the subject property covered by the falsified mortgage deeds may not be foreclosed upon. The trial court believed Paningbatan's explanation that she was the one who obtained a loan from respondents in the amount of P13,000.00, and that it was Engr. Marias who forged Bienvenido's signature on said mortgage deed. On the other hand, the Court of Appeals placed weight on the direct testimonies of the two notaries public, who categorically declared that Libres personally appeared before them and signed the mortgage deeds in their presence. The appellate court opined that, since they possessed the character of public documents - by their subsequent notarization and acknowledgment, the questioned mortgage deeds must be accorded the presumption of regularity. Evidence to contradict them must be clear, convincing and more than merely preponderant.18 It ruled that any claim of forgery of these documents must be proved with evidence, which in petitioners' case, was not sufficiently established, beyond mere denials and the testimony and report of the NBI handwriting expert, which it considered as unconvincing. The Court of Appeals held that the NBI handwriting expert's opinion is merely persuasive and not conclusive, citing Jimenez v. Commission on Ecumenical Mission and Relations,19 where we held that resort to handwriting experts, although helpful in the examination of forged documents because of the technical procedure involved in analyzing them, is not mandatory or indispensable to the examination or comparison of handwriting, and a finding of forgery does not entirely depend upon the testimony of these experts. The appellate court likewise found as fatal the failure of the petitioners to present the testimonies in court of Pancho and Gloria Libres, who could have readily confirmed the truth of petitioners' defense. Finally, it found that Paningbatan's claim of forgery committed by her godfather was self-serving. We sustain the appellate court. Notarial documents executed with all the legal requisites under the safeguard of a notarial certificate is evidence of a high character. To overcome its recitals, it is incumbent upon the party challenging it to prove his claim with clear, convincing and more than merely preponderant evidence.20 A notarial document, guaranteed by public attestation in accordance with the law, must be sustained in full force and effect so long as he who impugns it does not present strong, complete, and conclusive proof of its falsity or nullity on account of some flaws or defects provided by law.21 Without that sort of evidence, the presumption of regularity, the evidentiary weight conferred upon such public document with respect to its execution, as well as the statements and the authenticity of the signatures thereon, stand.22 Against the bare denials and interested disavowals of the petitioners, the testimonies of the two notaries public must prevail. Their identical and categorical declarations that Libres signed the mortgage deeds in their presence present a more convincing picture of the actual events that transpired. We agree with the appellate court's ruling that petitioners' failure to present the two witnesses to the mortgage deeds, Pancho and Gloria Libres, is fatal to their cause. Their testimonies, if favorable to petitioners' cause, would have dissipated, by way of corroboration, the courts' justifiable supposition that petitioners' testimonies are merely self-serving. He who disavows the authenticity of his signature on a public document bears the responsibility to present evidence to that effect. Mere disclaimer is not sufficient. At the very least, he should present corroborating witnesses to prove his assertion. At best, he should present an expert witness.23 This is because as a rule, forgery cannot be presumed and must be proved by clear, positive and convincing evidence and the burden of proof lies on the party alleging forgery.24 Petitioners, left with no other recourse than their self-serving declarations for lack of corroborating evidence, seek redemption through the lone testimony of the NBI handwriting expert, who understandably is the sole disinterested witness for the petitioners. This, however, cannot suffice. Standing alone amidst the mass of evidence adduced by the respondents and their witnesses, the NBI handwriting expert's opinion may not overturn the categorical declaration of the notaries public that Libres signed the mortgage deeds in their presence. As we held in Leyva v. Court of Appeals,25 the positive testimony of the attesting witnesses ought to prevail over expert opinions which cannot be mathematically precise but which, on the contrary, are subject to inherent infirmities. Besides, the handwriting expert's testimony is only persuasive, not conclusive.

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We cannot discount petitioners' admission during barangay conciliation proceedings that they owed respondents money and offered to pay the same with a portion of the subject property.26 Certainly, there is a preponderance of evidence in respondents' favor. We see no conflicting factual milieu; the dilemma lay merely in the appreciation of the evidence for both parties. Where in this respect the trial and appellate courts could not agree, we must intervene and, once again, exhibit the Court's wisdom in order to dispense justice with an even hand. We note however, that the subject property is Bienvenido and Maria Libres' family home, although the truth of this observation could not be known from the evidence presented. It is thus incumbent upon the trial court to make a prior determination in this respect, taking to mind the provisions of the Family Code on the family home, specifically Articles 152 up to 162 thereof. WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated September 11, 2006 in CAG.R. CV No. 65722 ordering petitioners to pay respondents the amount of P150,000.00 with legal interest thereon of 12% until fully paid, and the Resolution dated January 17, 2007 denying the motion for reconsideration, areAFFIRMED. However, considering the possibility that the subject property constitutes the petitioners' family home, the Regional Trial Court of Lingayen, Pangasinan, Branch 68 isDIRECTED to conduct a thorough inquiry into the nature, circumstances and value of the same, in accordance with and taking into consideration the provisions of the Family Code, and immediately make the corresponding determination in respect thereof prior to execution. SO ORDERED. In affirming the nullification by the trial court of Exhibits 3, 4, 5, 6, 7, and 8, the Court of Appeals held: xxxx First of all, facts about pedigree of the registered owners and their lawful heirs were convincingly testified to by plaintiff-appellant Gaudencio Padigos and his testimony remained uncontroverted. xxxx Giving due weight to his testimony, we find that x x x the vendors in the aforesaid Deeds of Sale x x x were not the legal heirs of the registered owners of the disputed land. x x x xxxx As for Exhibit 4, the vendor Gavino Padigos is not a legal heir of the registered owner Felix Padigos. The latters heirs are plaintiff-appellants Expedito Padigos, Henry Padigos and Enrique P. Malazarte. Accordingly, Exhibit 4 is a patent nullity and did not vest title of Felix Padigos share of Lot 3781 to Alipio [Gadiano]. As for Exhibit 6, the vendors Gavino and Rodulfo Padigos are not the legal heirs of the registered owner Geronimo Padigos. Therefore, these fictitious heirs could not validly convey ownership in favor of Alipio [Gadiano]. xxxx As for Exhibit 8, the vendor Candido Padigos is not a legal heir of Simplicio Padigos. Therefore, the former could not vest title of the land to Alipio Bacalso. As for Exhibit 3, the vendors Gaudencio Padigos, Hermenegilda Padigos and Domingo Padigos are not the legal heirs of registered ownerFortunata Padigos. Hermenegilda Padigos is not a known heir of any of the other registered owners of the property.

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On the other hand, plaintiffs-appellants Gaudencio and Domingo Padigos are only some of the collateral grandchildren of Fortunata Padigos. They could not by themselves dispose of the share of Fortunata Padigos. x As for Exhibit 5, the vendors in Exhibit 5 are not the legal heirs of Wenceslao Padigos. The children of registered owner Wenceslao Padigos are: Wenceslao Padigos, Demetrio Padigos and Nelly Padigos. Therefore, Exhibit 5 is null and void and could not convey the shares of the registered owner Wenceslao Padigos in favor of Alipio Bacalso. As for Exhibit 9, the Deed of Sale executed by Alipio [Gadiano] in favor of Alipio Bacalso is also void because the shares of the registered owners Felix and Geronimo Padigos were not validly conveyed to Alipio [Gadiano] because Exhibit 4 and 6 were void contracts. Thus, Exhibit 9 is also null and void.[58] (Italics in the original; underscoring supplied) The evidence regarding the facts of pedigree of the registered owners and their heirs does not, however, satisfy this Court. Not only is Gaudencios self-serving testimony uncorroborated; it contradicts itself on material points. For instance, on direct examination, he testified that Ignacio is his father and Fortunata is his grandmother.[59] On cross-examination, however, he declared that his father Ignacio is the brother of Fortunata.[60] On direct examination, he testified that his co-plaintiffs Victoria and Lilia are already dead.[61] On cross-examination, however, he denied knowledge whether the two are already dead.[62] Also on direct examination, he identified Expedito, Henry, and Enrique as the children of Felix.[63] Expedito himself testified, however, that he is the son of a certain Mamerto Padigos, the son of a certain Apolonio Padigos who is in turn the son of Felix.[64] AT ALL EVENTS, respondents are guilty of laches the negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it has either abandoned it or declined to assert it.[65] While, by express provision of law, no title to registered land in derogation of that of the registered owner shall be acquired by prescription or adverse possession, it is an enshrined rule that even a registered owner may be barred from recovering possession of property by virtue of laches.[66] Respondents insist, however, that they only learned of the deeds of sale in 1994, the year that Alipio, Sr. allegedly commenced possession of the property.[67] The record shows, however, that although petitioners started renting out the land in 1994, they have been tilling it since the 1950s,[68] and Rosendos house was constructed in about 1985.[69] These acts of possession could not have escaped respondents notice given the following unassailed considerations, inter alia: Gaudencio testified that he lived on the lot from childhood until 1985, after which he moved to a place three kilometers away, and after he moved, a certain Vicente Debelos lived on the lot with his permission.[70] Petitioners witness Marina Alcoseba, their employee,[71] testified that Gaudencio and Domingo used to cut kumpay planted by petitioners tenant on the lot.[72] The tax declarations in Alipio, Sr.s name for the years 1967-1980 covering a portion of the lot indicate Fortunatas share to be the north and east boundaries of Alipio, Sr.s;[73] hence, respondents could not have been unaware of the acts of possession that petitioners exercised over the lot. Upon the other hand, petitioners have been vigilant in protecting their rights over the lot, which their predecessor-in-interest Alipio, Sr. had declared in his name for tax purposes as early as 1960, and for which he had been paying taxes until his death in 1994, by continuing to pay the taxes thereon.[74] Respondents having failed to establish their claim by preponderance of evidence, their action for quieting of title, declaration of nullity of documents, recovery of possession, and damages must fail. A final word. While petitioners attribution of error to the appellate courts implied sanction of the trial courts order for the demolition pending appeal of the houses of their lessees is well taken, the Court may not consider any grant of relief to them, they not being parties to the case. WHEREFORE, the petition is GRANTED. The September 6, 2005 decision of the Court of Appeals is REVERSED and SET ASIDE. Civil Case No. CEB-17326 of Branch 16 of the Regional Trial Court of Cebu City is DISMISSED. SO ORDERED.

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AMANDO A. PONTAOE and DR. ALEJANDRO G. PONTAOE, - versus TEODORA A. PONTAOE and EDUARDO A. PONTAOE, Respondents. x--------DECISION QUISUMBING, J.: Before us are petitions for review on certiorari under Rule 45 of the Rules of Court assailing the Decision[1] dated July 31, 2003 and the Resolution[2] dated August 3, 2004 of the Court of Appeals in CA-G.R. CV No. 52587 which modified the Decision[3] dated October 31, 1995 of the Regional Trial Court (RTC) of Dagupan City, Branch 42, in Civil Case No. D-10738. The facts of the case are as follows: Teodora Pontaoe, Eduardo Pontaoe and Amando Pontaoe are full-blood children of Juan Pontaoe and his second wife, Tomasa Aquino. Dr. Alejandro Pontaoe is the nephew of Teodora, Eduardo and Amando. He is the only child of their late half-brother, Norberto, son of Juan and his first wife. Juan died on March 31, 1971 while Tomasa Aquino died on September 4, 1988.[4] Juan and Dr. Alejandro were the registered co-owners of a 48,144-square meter parcel of land covered by Original Certificate of Title (OCT) No. 139[5] located at Sapang, Sta. Barbara, Pangasinan. Juan was the registered co-owner of one-half of the eastern portion of the land while Dr. Alejandro, the other half of the western portion.[6] On August 31, 1970, the spouses Juan and Tomasa allegedly executed a Deed of Conveyance [7] over the one-half eastern portion in favor of their son Eduardo. OCT No. 139 was cancelled and replaced by Transfer Certificate of Title (TCT) No. 92293[8] in the name of Eduardo as the registered owner. On May 11, 1971, allegedly a Deed of Quitclaim[9] executed by Dr. Alejandro vested Eduardo with ownership over the one-half western portion. Afterwards, on June 23, 1980, Eduardo executed a Deed of Absolute Sale[10] over the entire property in favor of his sister, Teodora. On May 31, 1982, Teodora and Eduardo divided the land into two equal portions, each with an area of 24,072 square meters resulting in the cancellation of TCT No. 92293 and the issuance of TCT No. [143491][11] in the name of Eduardo A. Pontaoe and TCT No. [143492][12] in the name of Teodora A. Pontaoe.[13] On June 23, 1980, a Deed of Absolute Sale was allegedly executed by Tomasa Aquino also in favor of Teodora Pontaoe over another parcel of land comprising 17,077 square meters[14] also located at Sapang, Sta. Barbara, Pangasinan and covered by OCT No. 138.[15] Consequently, OCT No. 138 was cancelled and TCT No. 134602[16] was issued in Teodoras name.[17] On September 7, 1993, Teodora filed a Complaint for Quieting of Title, Accounting and Damages[18] against Amando before the RTC of Dagupan City. Teodora alleged she is the registered owner of the parcels of land covered by TCT No. 143492 and TCT No. 134602 while Eduardo, who later on joined as co-plaintiff, is the registered owner of the parcel of land covered by TCT No. 143491. She alleged that they delivered the parcels of land to their mother, Tomasa, for her use and enjoyment until she reached the age of 50. However, after their mother suffered a stroke in May 1986, Amando took possession of the properties. After the death of their mother on September 4, 1988 and despite repeated demands on Amando to cease and desist from using and appropriating the fruits of the properties, Amando refused to vacate the land. His persistent claim of ownership and acts of dominion over the properties allegedly cast a cloud over the titles and hence, they filed the complaint for quieting of title.[19] G.R. No. 159585

E V I D E N C E N E W S E T | 36
Amando and Dr. Alejandro, on the other hand, claim that the signatures appearing in the Deed of Conveyance were not Juan and Tomasas signatures. They also claim that the signature appearing in the Deed of Quitclaim allegedly executed on May 11, 1971is not the signature of Dr. Alejandro. Likewise, the signature appearing in the Deed of Absolute Sale allegedly executed on June 23, 1980 was not the signature of Tomasa.[20] Hence, the Deed of Conveyance, Deed of Quitclaim and Deed of Absolute Sale are invalid and there was no valid transfer of ownership to Eduardo and Teodora. The properties should then be co-owned by Eduardo, Teodora, Amando and Dr. Alejandro as heirs of the late spouses Juan and Tomasa. After trial, the lower court declared Eduardo, Teodora, Amando and Dr. Alejandro as co-owners of the parcel of land covered by TCT No. 143491. It found out that the signature of Juan appearing in the Deed of Conveyance was substantially different from his admittedly genuine and authentic signatures. The trial court likewise ruled that, with respect to the Deed of Quitclaim, the signature of Dr. Alejandro had marked differences from the signatures which were undisputably affixed by him in other documents. Moreover, Dr. Alejandro was in the United States of America on the date he allegedly affixed his signature on the Deed of Quitclaim. Thus, the trial court declared the Deed of Quitclaim invalid and Dr. Alejandro as the absolute and exclusive owner of the parcel of land presently covered by TCT No. 143492. The trial court also declared the parties as co-owners of the parcel of land covered by TCT No. 134602. Thus, the trial court ordered the Register of Deeds, Lingayen, Pangasinan to cancel TCT Nos. 134602, 143491 and 143492 and issue new transfer certificates of titles corresponding to the share of each of the parties.[21] On appeal, the Court of Appeals reversed the decision of the RTC with respect to the parcel of land covered by TCT No. 134602. It declared that Tomasa as the absolute and exclusive owner had the right to transfer ownership of the property to Teodora. The Court of Appeals also ruled that the trial court erred in apportioning the subject properties in favor of Eduardo, Teodora, Amando and Dr. Alejandro. Since the complaint was for quieting of title, accounting and damages, the trial court should have limited itself to questions of ownership of the subject properties and determination of the validity of the Deed of Conveyance, Deed of Quitclaim and Deed of Absolute Sale. Further, it ruled that the proceedings a quo were not the proper forum to determine the successional rights of the parties.[22] The dispositive portion of the Court of Appeals decision reads, WHEREFORE, premises considered, the the Regional Trial Court of Dagupan City is partially modified as follows: 1. Decision of

Declaring the Deed of Conveyance dated August 31, 1970 (Exh. 1) null and void and ordering the Register of Deeds, Lingayen, Pangasinan to cancel Transfer Certificate [of] Title Nos. [143491], [143492] and 92293 and to reinstate Original Certificate of Title No. 139; Declaring intervenor Dr. Alejandro G. Pontaoe as co-owner of the eastern portion of the property covered by Original Certificate of Title No. 139; Declaring appellant Teodora A. Pontaoe as the absolute and exclusive owner of the parcel of land presently covered by Transfer Certificate of Title No. 134602.

2. 3.

SO ORDERED.[23] Teodora and Eduardo sought reconsideration of the decision but their motion was denied by the Court of Appeals on August 3, 2004. In their petitions for review before us, the parties submit the following issues for our consideration: I. [WHETHER OR NOT] THE COURT OF APPEALS WITH DUE RESPECT ERRED IN DECLARING APPELLANT TEODORA A. PONTAOE AS THE ABSOLUTE AND EXCLUSIVE OWNER OF THE PARCEL OF LAND PRESENTLY COVERED BY T[C]T NO. 134602 OF THE REGISTRY OF DEEDS OF PANGASINAN.[24] II.

E V I D E N C E N E W S E T | 37
[WHETHER OR NOT] THE HONORABLE COURT OF APPEALS HAD DECIDED CA G.R. CV NO. 52587 IN A WAY PROBABLY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE HONORABLE COURT IN AFFIRMING THE DECISION OF THE REGIONAL TRIAL COURT IN CIVIL CASE NO. D-10738 THAT THE LANDS OF JUAN PONTAOE AND ALEJANDRO PONTAOE WERE NOT VALIDLY CONVEYED TO PETITIONER EDUARDO PONTAOE, AND DECLARING THE DEED OF CONVEYANCE IN FAVOR OF EDUARDO PONTAOE . . . NULL AND VOID.[25] In brief, for our consideration are the following issues: Did the Court of Appeals err in declaring Teodora absolute owner of the land presently covered by TCT No. 134602? Are the Deeds of Conveyance and Quitclaim in favor of Eduardo valid? Petitioners in G.R. No. 159585, Amando and Dr. Alejandro argue that the Court of Appeals erred when it reversed the trial courts ruling that the Deed of Absolute Sale executed by Tomasa in favor of Teodora was not valid because both parties allegedly admitted that the property covered by TCT No. 134602 was the sole property of Juan.[26] They stress that the parties stipulated in the Pre-trial Order[27] dated March 16, 1994 that the properties were originally owned by Juan. Amando and Dr. Alejandro emphasize that such admission was a declaration against interest which should be given weight and credence.[28] For their part, Teodora and Eduardo in their Memorandum [29] dated September 5, 2005, counter that although the property was originally owned by Juan, it was later on solely owned by Tomasa when she bought back the property from the Dagupan Rural Bank. The Court of Appeals, in reversing the trial courts ruling that Tomasa had no right to transfer the property, noted that the trial court failed to mention that after Juan died in 1971, Tomasa Aquino bought the subject lot from the Dagupan Rural Bank as shown by Entry No. 388121[30] dated November 5, 1973 annotated at the back of OCT No. 138. She bought the land after the title was consolidated in the name of the bank as shown by Entry No. 387094[31] of OCT No. 138. Thus, the land became her own property. Therefore, according to the appellate court, at the time Tomasa Aquino executed the Deed of Absolute Sale in favor of Teodora, Tomasa had full title to transfer the ownership of the lot to the latter.[32] Our perusal of the annotations in OCT No. 138 shows that in an Entry No. 316753[33] dated May 23, 1969, the property was mortgaged to the Dagupan Rural Bank. Another entry shows that the property was subsequently foreclosed in 1971 and title transferred to the Dagupan Rural Bank. It was only in 1973 that Tomasa, then already a widow, bought back the property. Thus, although Juan originally owned the property, Tomasa became the sole owner when she sold the property to Teodora. As to the second issue, petitioners in G.R. No. 165318, Teodora and Eduardo contend that the Court of Appeals and the trial court erred in ruling that the signatures of Juan and Dr. Alejandro were forgeries. They argue that the courts should have employed handwriting experts and not merely made their own findings based solely on their examination and comparison of the signatures. On the other hand, Amando and Dr. Alejandro contend that the finding of the trial court and the Court of Appeals that the signatures of Juan and Dr. Alejandro were forged is a finding of fact which is binding on this Court. We affirm the appellate courts findings. Both the trial court and the Court of Appeals ruled that the signatures of Juan and Dr. Alejandro were forgeries. Both signatures are on the record and were made available to the trial court, appellate court and to us for scrutiny and we agree with these lower courts and are bound by both their findings that the signatures of Juan and Dr. Alejandro are indeed forgeries. As to the argument that handwriting experts should have been employed, handwriting experts are usually helpful in the examination of forged documents because of the technical procedure involved in analyzing them, but resort to these experts is not mandatory or indispensable to the examination or the comparison of handwritings. A finding of forgery does not depend entirely on the testimonies of handwriting experts, because the judge must conduct an examination of the questioned signature in order to arrive at a reasonable conclusion as to its

E V I D E N C E N E W S E T | 38
authenticity. The opinions of handwriting experts are not binding upon courts, especially when the question involved is mere handwriting similarity or dissimilarity, which can be determined by a visual comparison of specimens of the questioned signatures with those of the currently existing ones.[35] Moreover, Section 22[36] of Rule 132 of the Rules of Court likewise explicitly authorizes the court, by itself, to make a comparison of the disputed handwriting with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge.[37] WHEREFORE, the petitions are DENIED. The assailed Decision dated July 31, 2003, as well as the Resolution datedAugust 3, 2004, of the Court of Appeals in CA-G.R. CV No. 52587 is AFFIRMED. SO ORDERED.
[34]

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EN BANC [G.R. No. 139070. May 29, 2002] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NOEL LEE, accused-appellant. DECISION PUNO, J.: On automatic review is the decision of the Regional Trial Court, Caloocan City, Branch 127 in Criminal Case No. C-54012 (98), which sentenced accused-appellant Noel Lee to death for the murder of Joseph Marquez. On May 27, 1998, an Information was filed against accused-appellant charging him with the crime of murder committed as follows: That on or about the 29th day of September 1996, in Kalookan City, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation did then and there willfully, unlawfully and feloniously attack and shoot one JOSEPH MARQUEZ y LAGANDI, with the use of a handgun, thereby inflicting upon the latter serious physical injuries, which ultimately caused the victims death. CONTRARY TO LAW.[1] Accused-appellant pleaded not guilty to the charge. At the trial, the prosecution presented the following witnesses: (a) Herminia Marquez, the mother of the victim; (b) Dr. Darwin Corpuz, a resident doctor at the Manila Caloocan University (MCU) Hospital; (c) PO2 Rodelio Ortiz, a police officer who examined the crime scene; and (d) Dr. Rosaline Cosidon, a medico-legal officer of the Philippine National Police (PNP) Crime Laboratory. The prosecution established the following facts: At 9:00 in the evening of September 29, 1996, Herminia Marquez, 46 years of age and her son, Joseph, 26 years of age, were in the living room of their house located at No. 173 General Evangelista St., Bagong Barrio, Caloocan City. The living room was brightly lit by a circular fluorescent lamp in the ceiling. Outside their house was an alley leading to General Evangelista Street. The alley was bright and bustling with people and activity. There were women sewing garments on one side and on the other was a store catering to customers. In their living room, mother and son were watching a basketball game on television. Herminia was seated on an armchair and the television set was to her left. Across her, Joseph sat on a sofa against the wall and window of their house and the television was to his right. Herminia looked away from the game and casually glanced at her son. To her complete surprise, she saw a hand holding a gun coming out of the open window behind Joseph. She looked up and saw accused-appellant Noel Lee peering through the window and holding the gun aimed at Joseph. Before she could warn him, Joseph turned his body towards the window, and simultaneously, appellant fired his gun hitting Josephs head. Joseph slumped on the sofa. Herminia stood up but could not move as accused-appellant fired a second shot at Joseph and three (3) shots more two hit the sofa and one hit the cement floor. When no more shots were fired, Herminia ran to the window and saw accused-appellant, in a blue sando, flee towards the direction of his house. Herminia turned to her son, dragged his body to the door and shouted for help. With the aid of her neighbor and kumpare, Herminia brought Joseph to the MCU Hospital where he later died. Police investigators arrived at the hospital and inquired about the shooting incident. Herminia told them that her son was shot by Noel Lee. From the hospital, Herminia went to the St. Martin Funeral Homes where Josephs body was brought. Thereafter, she proceeded to the Caloocan City Police Headquarters where she gave her sworn statement about the shooting.[2] Upon request of the Caloocan City police, a post-mortem examination was made on Josephs body. Dr. Rosaline O. Cosidon, a medico-legal officer of the PNP Crime Laboratory Service made the following findings: FINDINGS: Fairly developed, fairly nourished male cadaver in rigor mortis with postmortem lividity at the dependent portions of the body. Conjunctiva are pale, Lips and nailbeds are cyanotic. A needle puncture mark was noted at the dorsum of the right hand. HEAD:

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(1) Gunshot wound, frontal region, measuring 0.5 x 0.5 cm, just right of the anterior midline, 161 cm from heel, with an upbraded collar, measuring 0.2 cm superiorly and laterally, 0.1 cm medially and inferiorly directed posteriorwards, downwards and to the left fracturing the frontal bone, lacerating the brain. A deformed slug was recovered embedded at the left cerebral hemisphere of the brain. (2) Gunshot wound, occipital region, measuring 0.5 x 0.5 cm, 2 cm left of the posterior midline, 162 cm from heel, with a uniform 0.2 cm upbraded collar, directed slightly anteriorwards, downwards and lateralwards, fracturing the occipital bone and lacerating the brain. A deformed slug was recovered at the left auricular region. (3) Contusion, right eyebrow, measuring 3 x 2 cm, 3 cm from the anterior midline. There are subdural and subarachnoidal hemorrhages. Stomach is full of partially digested food particles and positive for alcoholic odor. CONCLUSION: Cause of death is intracranial hemorrhage as a result of gunshot wounds. Head.[3] At the time of his death, Joseph was employed as driver by the Santos Enterprises Freight Services earning P250.00 a day.[4] He left behind two children by his live-in partner who are now under his mothers care and support. Herminia spent approximately P90,000.00 for the funeral and burial expenses of her deceased son. The expenses were supported by receipts[5] and admitted by the defense.[6] Herminia filed a complaint for murder against accused-appellant. The complaint, docketed as I.S. No. 963246, was however dismissed for insufficiency of evidence in a Resolution dated December 4, 1996 by Prosecutor Dionisio C. Sison with the approval of Caloocan City Prosecutor Rosauro J. Silverio. [7] Herminia appealed the order of dismissal to the Secretary of Justice. In a letter dated March 16, 1998, Secretary of Justice Silvestre Bello III reversed and set aside the appealed Resolution and ordered the City Prosecutor of Caloocan City to file an information for murder against the accused-appellant.[8] Accordingly, the Information was filed and a warrant of arrest issued against accused-appellant on June 8, 1998. On October 16, 1998, appellant was arrested by agents of the National Bureau of Investigation (NBI). Appellant is a well-known figure in their neighborhood and has several criminal cases pending against him in Caloocan City. He was charged with frustrated homicide in 1984 and attempted murder in 1989.[9] For his defense, accused-appellant presented two witnesses: (a) Orlando Bermudez, a neighbor; and (b) himself. He denies the killing of Joseph Marquez. He claims that from 8:00 to 10:00 in the evening of September 29, 1996, he was in his house located at 317 M. de Castro St., Bagong Barrio, Caloocan City. He was having some drinks with his neighbor, Orlando Bermudez, and his driver, Nelson Columba. They were enjoying themselves, drinking and singing with the videoke. Also in the house were his wife, children and household help. At 10:00 P.M., Orlando and Nelson went home and accused-appellant went to sleep. He woke up at 5:30 in the morning of the following day and learned that Joseph Marquez, a neighbor, was shot to death. To appellants surprise, he was tagged as Josephs killer.[10] Accused-appellant had known the victim since childhood and their houses are only two blocks apart. Joseph had a bad reputation in their neighborhood as a thief and drug addict. Six days before his death, on September 23, 1996, accused-appellant caught Joseph inside his car trying to steal his car stereo. Joseph scampered away. As proof of the victims bad reputation, appellant presented a letter handwritten by his mother, Herminia, addressed to Mayor Reynaldo Malonzo of Caloocan City, and sent through PO3 Willy Tuazon and his wife, Baby Ruth. In the letter, Herminia was surrendering her son to the Mayor for rehabilitation because he was hooked on shabu, a prohibited drug, and was a thief. Herminia was scared that eventually Joseph might not just steal but kill her and everyone in their household because of his drug habit.[11] The accused-appellant likewise explained the two criminal cases filed against him in 1984 and 1989. The information for attempted murder was dismissed as a result of the victims desistance while in the frustrated homicide case, the real assailant appeared and admitted his crime.[12] In a decision dated June 22, 1999, the trial court found accused-appellant guilty and sentenced him to the penalty of death. The court also ordered appellant to pay the heirs of the victim civil indemnity of P50,000.00,

E V I D E N C E N E W S E T | 41
actual damages of P90,000.00, moral damages of P60,000.00 and exemplary damages of P50,000.00 and the costs of the suit. Thus: WHEREFORE, foregoing premises considered and the prosecution having established beyond an iota of doubt the guilt of accused NOEL LEE of the crime of Murder as defined and penalized under Article 248 of the Revised Penal Code as amended by R.A. 7659, this court, in view of the presence of the generic aggravating circumstance of dwelling and without any mitigating circumstance to offset it, hereby sentences the said accused to suffer the extreme penalty of DEATH; to indemnify the legal heirs of the deceased civil indemnity of P50,000.00; to pay the private complainant actual damages of P90,000.00 plus moral and exemplary damages of P60,000.00 and P50,000.00, respectively; and to pay the costs. Consistent with the provisions of Section 10, Rule 122 of the 1985 Rules on Criminal Procedure, as amended, let the entire records hereof including the complete transcripts of stenographic notes be forwarded to the Supreme Court for automatic review and judgment, within the reglementary period set forth in said section. SO ORDERED.[13] Hence, this appeal. Before us, accused-appellant assigns the following errors: I THE COURT A QUO GRAVELY ERRED IN RELYING HEAVILY ON THE SELF-SERVING AND CONTRADICTORY TESTIMONY OF THE MOTHER OF THE VICTIM, HERMINIA MARQUEZ, WHOSE NARRATION OF THE CHAIN OF OCCURRENCE THAT LED TO THE DEATH OF JOSEPH MARQUEZ WAS BEYOND BELIEF. II THE TRIAL COURT GRAVELY ERRED IN HASTILY TAGGING THE ACCUSED-APPELLANT, NOEL LEE, AS THE ASSAILANT BASED MERELY ON THE BIASED DECLARATION OF THE MOTHER WITHOUT CONSIDERING THE SHADY CHARACTER OF THE VICTIM AGAINST WHOM OTHERS MIGHT HAVE AN AXE TO GRIND. III THE TRIAL COURT GRAVELY ERRED IN ITS DECISION OF FINDING GUILT ON THE ACCUSEDAPPELLANT WITHOUT EVEN RAISING A FINGER IN SATISFYING ITSELF THAT THE PHYSICAL EVIDENCE OBTAINING IN 1996 ARE STILL PREVAILING IN 1999 WHEN THE CASE WAS TRIED ON THE MERITS SO AS TO ESTABLISH THE IDENTITY OF THE ASSAILANT BEYOND DOUBT. IV THE COURT A QUO GRIEVOUSLY ERRED IN TREATING WITH LENIENCY HERMINIA MARQUEZS VACILLATION WITH RESPECT TO THE BUTAS NG BINTANA AS CONTAINED IN HER SWORN STATEMENT AND THE BUKAS NA BINTANA AS PER HER REPAIRED TESTIMONYA SERIOUS PROCEDURAL ANOMALY THAT ASSAULTED THE SUBSTANTIAL RIGHT OF THE ACCUSED-APPELLANT. V THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE EXTREME PENALTY OF DEATH UPON ACCUSED-APPELLANT DESPITE OBVIOUS REASONABLE DOUBT.[14] The assigned errors principally involve the issue of the credibility of Herminia Marquez, the lone prosecution eyewitness. Accused-appellant claims that the trial court should not have accepted Herminias testimony because it is biased, incredible and inconsistent. Herminias testimony on direct examination is as follows: x x x

ATTY. OPENA: Now who was your companion, if any, at that time?

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WITNESS: Me and my son, Joseph Marquez, and the wife upstairs putting the baby to sleep. Q: A: Q: A: Q: A: Q: A: Q: A: Q: What were you and your son, Joseph, doing then? Watching TV. Will you please tell us your position, I am referring to you and your son in relation to the television set where you are watching the show. We were facing each other while watching television which is on the left side. Will you please tell us where exactly was your son, Joseph, seated while watching television? At the end most of the sofa. The sofa you are referring to is the one near the window. Yes, sir. Dikit lang po. Will you give us an idea or describe to us that window which you mentioned awhile ago? Transparent glass. How high is it from the ground?

COURT: Which one? ATTY. OPENA: The window glass? WITNESS: About three feet from the ground. ATTY. OPENA TO WITNESS: Q: A: Q: A: Q: You said three feet. What do you mean by that? Is that window elevated from the ground? The same height as this court window which is about three feet from the ground, and from one another about four by four window [sic], three feet by the ground. Now, you demonstrated by showing a portion, you mean to tell us that window was mounted on a concrete or hollow block? Hollow block, po. How high is that hollow block that you were referring to?

COURT: She said three feet. ATTY. OPENA TO WITNESS: Q: A: Q: A: Q: Which is higher, that sofa which is posted near the window or the hollow block? Hollow block. By how many inches or feet? About half a foot. You said the sofa was long. Will you please tell us in what portion of your sofa your son Joseph was seated?

ATTY. VARGAS: Already answered, your Honor. She said dulo, end of the sofa. COURT: Sustained. ATTY. OPENA TO WITNESS: Q: A: Q: A: When you said end of sofa which portion, the left side or the right side? The right. Now, while you and your son were watching television, was there anything unusual that transpired? Yes, sir.

E V I D E N C E N E W S E T | 43
Q: A: Q: A: Q: A: Tell us what was that all about. Mayroon po akong napansin na kamay na nakatutok sa anak ko. Nakita ko po si Noel Lee na nakatayo sa may bintana. What do you mean by the word kamay? Hawak hawak po niya iyong baril, nakatutok po sa anak ko. What did you do with what you saw? Nakita ko pong gumanoon siya, sumilip na ganoon, sabay putok ng baril. Tumingin po siya sa may bintana, ganoon po, sabay putok ng baril.

COURT: You said he turned the head. Who turned the head? Sino ang gumanyan sa sinabi mo? A: Q: A: (Witness demonstrating that the victim peeped through the window). And then? At the same time the firing of the gun [sic] and I saw my son slumped.

ATTY. OPENA TO THE WITNESS: Q: A: Q: A: Q: A: Q: And after your son was slumped, what did you do? I went to my son and carried him to take him to the hospital. How many shots did you hear? Five shots. That was prior to helping your son? Yes, sir. And how many times was your son hit?

ATTY. VARGAS: Q: Objection, your honor. It was already answered. Because according to her it was five shots.

COURT: It does not follow that the victim was hit. So, the witness may answer. WITNESS: Twice, Two shots hit my son, two shots on the sofa and one shot on the cement. COURT: How about the other one? A: Doon po sa semento.

ATTY. OPENA TO WITNESS: Q: A: Q: A: Q: A: Q: A: And who fired these shots? Noel Lee. That Noel Lee that you are referring to, will you please point at him if he is around? (Witness going down the witness stand and pointing to accused Noel Lee). How do you know that it was Noel Lee who shot your son? Kitang kita ko po. Magkatapat po kami. Will you please describe to us? Maliwanag po kasi ang ilaw. Maliwanag din po sa labas, may nananahi doon. Nandoon po kaming dalawa ng anak ko nanonood ng television. (Witness sobbing in tears). Napakasakit sa akin. Hindi ko man lang naipagtanggol and anak ko.

COURT: She was emotionally upset.

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ATTY. OPENA: Ill just make it on record that the witness was emotionally upset. May I ask if she can still testify? xxx xxx xxx

WITNESS: Masakit lang po sa loob ko ang pagkawala ng anak ko. ATTY. OPENA TO WITNESS: Q: A: You saw that the light was bright. Where were those lights coming from? Maliwanag po sa loob ng bahay namin dahil may fluorescent na bilog. Saka sa labas may nananahi po doon sa alley katapat ng bahay namin. At saka po doon sa kabila, tindahan po tapat po namin, kaya maliwanag ang ilaw. After trying to help your son, what happened? I was able to hold on to my son up to the door. Upon reaching the door, I asked the help of my kumpare. Meanwhile, what did the accused do after shooting five times? He ran to the alley to go home. Now you said he ran to an alley towards the direction of their house. Do you know where his house is located? Yes, sir. 142 M. de Castro Street, Bagong Barrio, Caloocan City. How far is that from your residence? More or less 150 to 200 meters. Where did you finally bring your son? MCU. When you say MCU, are you referring to MCU Hospital? Yes, sir. MCU Hospital. At MCU, life-saving devices were attached to my son. Later, after reaching 11:00, he died.

Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q:

COURT: 11:00 P.M.? A: Q: A: Yes, maam. Same day? Yes, maam. xxx xxx x x x.[15]

Herminias testimony is positive, clear and straightforward. She did not waver in her narration of the shooting incident, neither did she waffle in recounting her sons death. She was subjected by defense counsel to rigorous cross and re-cross examinations and yet she stuck to her testimony given in the direct examination. She readily gave specific details of the crime scene, e.g., the physical arrangement of the sofa and the television set, the height of the sofa, the wall and the window, because the crime happened right in her own living room. She explained that she was unable to warn Joseph because she was shocked by the sight of accused-appellant aiming a gun at her son. The tragic events unfolded so fast and by the time she took hold of herself, her son had been shot dead. A sons death in his mothers house and in her presence is a painful and agonizing experience that is not easy for a mother to forget, even with the passing of time. Herminias testimony shows that she was living with a conscience that haunted and blamed her own self for failing to protect her son or, at least, save him from death. Nonetheless, accused-appellant points out inconsistencies in the eyewitness testimony. In her affidavit of September 30, 1996 given before PO2 Rodelio Ortiz, Herminia declared that while she and Joseph were watching television, she saw a hand holding a gun pointed at her son. The hand and the gun came out of a hole in the window, i.e., butas ng bintana. On cross-examination, Herminia stated that she saw a hand holding a gun

E V I D E N C E N E W S E T | 45
in the open window, i.e., bukas na bintana. According to accused-appellant, this inconsistency is a serious flaw which cannot be repaired by her statement on the witness stand. The inconsistency between her affidavit and her testimony was satisfactorily explained by Herminia on cross-examination: x x x ATTY. VARGAS Q: A: Q: A: Q: You said that you saw a hand from a hole in the window with a gun, is that correct? Bukas na bintana. Not from a hole but from an open window. Madam witness, do you recall having executed a sworn statement before the police, right after the shooting of your son? Yes, sir. I will read to you paragraph 8 of your statement which is already marked as your Exhibit A in which is stated as follows: Isalaysay mo nga sa akin ang buong pangyayari? Answer: Sa mga oras ng alas 9:00 ng gabi petsa 29 ng Setyembre 1996 habang ang aking anak ay nanonood ng palabas sa TV ng basketball malapit sa kanyang bintana sa labas at ako naman ay nakaupo sa sopa katapat ko siya subalit medyo malayo ng konti sa kanya, mayroon akong napansin na kamay na may hawak ng baril at nakaumang sa aking anak sa may butas ng bintana, do you recall that? Opo. What you saw from that butas is a hand with a gun, is that correct? Opo. Madam witness, your window is just like the window of this courtroom? Yes, sir. In your testimony, you did not mention what part of the window was that hand holding a gun that you saw? Is that correct? Hindi naman po butas, kundi bukas na bintana. Nakabukas iyong bintana namin. So in your sinumpaang salaysay in the statement that you said butas na bintana is not correct? Mali ho kasi, hindi ko na napansin iyan, kasi ito napansin ko, kinorect ko. xxx xxx

A: Q: A: Q: A: Q: A: Q: A:

COURT: You show to the witness. There, butas na bintana. WITNESS: Mali po ang letra, Bukas hindi butas. xxx xxx x x x.[16]

Herminia corrected her affidavit by saying in open court that she saw the hand and the gun coming out of the open window, not from a hole in the window. In her direct testimony, Herminia presented a photograph of her living room just the way it looked from her side on the night of the shooting. [17] The sofa on which Joseph was seated is against the wall, with the window a few inches above the wall. The window is made of transparent glass with six (6) vertical glass panes pushing outwards. The entire window is enclosed by iron grills with big spaces in between the grills. The living room is well-lit and the area outside the house is also lit by a fluorescent lamp. Between Herminias testimony in open court and her sworn statement, any inconsistency therein does not necessarily discredit the witness.[18] Affidavits are generally considered inferior to open court declarations because affidavits are taken ex-parte and are almost always incomplete and inaccurate.[19] Oftentimes, they are executed when the affiants mental faculties are not in such a state as to afford him a fair opportunity of narrating in full the incident that transpired.[20] They are usually not prepared by the affiant himself but by another who suggests words to the affiant, or worse, uses his own language in taking the affiants statements.[21] Accused-appellant argues that since Herminia declared in her affidavit that she saw a hand coming from the window, she did not see the person holding the gun, let alone who fired it.[22] A complete reading of the pertinent portion of Herminias affidavit will refute appellants arguments, viz:

E V I D E N C E N E W S E T | 46
x x x T- Isalaysay mo nga sa akin and buong pangyayari? S Sa mga oras ng alas 9:00 ng gabi, petsa 29 ng Setyembre 1996, habang ang aking anak ay nanonood ng palabas sa T.V. ng basketball malapit sa aming bintanan [sic] sa labas, at ako naman ay nakaupo sa sopa katapat ko siya subalit medyo malayo ng kaunti sa kanya, mayroon akong napansin akong [sic] kamay na hawak-hawak na baril na nakaumang sa aking anak sa butas na bintana na nakaawang, maya-maya ng kaunti ay nakarinig na ako ng putok at ang unang putok ay tumama sa ulo ng aking anak kaya napayuko siya, pagkatapos noon ay sunod-sunod na ang putok na narinig ko, mga limang beses, kaya kitang kita ko siya ng lapitan ko ang aking anak at nakita ko itong si NOEL LEE, pagkatapos noon ay tumakbo na ito papalabas ng iskinita papunta sa kanila. xxx xxx x x x.[23] xxx xxx

It is thus clear that when Herminia approached her son, she saw that the person firing the gun was accusedappellant. Appellant continued firing and then ran away towards the direction of his house. This account is not inconsistent with the witness testimony in open court. Herminias declarations are based on her actual account of the commission of the crime. She had no ill motive to accuse appellant of killing her son, or at least, testify falsely against appellant. Accused-appellant himself admitted that he and Herminia have been neighbors for years and have known each other for a long time. Appellant is engaged in the business of buying and selling scrap plastic and Herminia used to work for him as an agent.[24] She would not have pointed to appellant if not for the fact that it was him whom she saw shoot her son. Indeed, the Solicitor General points out that it was appellant himself who had strong motive to harm or kill Joseph.[25] Appellant revealed that six days before the shooting, he caught Joseph inside his car attempting to steal the stereo. The alibi that appellant was drinking with his friends that fateful night of September 29, 1996 does not rule out the possibility that he could have been at the scene of the crime at the time of its commission. The victims house is merely two blocks away from appellants house and could be reached in several minutes.[26] The lone eyewitness account of the killing finds support in the medico-legal report. Dr. Rosalie Cosidon found that the deceased sustained two gunshot woundsone to the right of the forehead, and the other, to the left side of the back of the victims head.[27] Two slugs were recovered from the victims head. Judging from the location and number of wounds sustained, Dr. Cosidon theorized that the assailant could have been more than two feet away from the victim.[28] Both gunshot wounds were serious and fatal.[29] Accused-appellant makes capital of Josephs bad reputation in their community. He alleges that the victims drug habit led him to commit other crimes and he may have been shot by any of the persons from whom he had stolen.[30] As proof of Josephs bad character, appellant presented Herminias letter to Mayor Malonzo seeking his assistance for Josephs rehabilitation from drugs. On rebuttal, Herminia admitted that she wrote such letter to Mayor Malonzo but denied anything about her sons thievery.[31] Character evidence is governed by Section 51, Rule 130 of the Revised Rules on Evidence, viz: Section 51. Character evidence not generally admissible; exceptions:-(a) In Criminal Cases: (1) The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged. (2) Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the moral trait involved in the offense charged. (3) The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged. xxx xxx x x x.

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Character is defined to be the possession by a person of certain qualities of mind and morals, distinguishing him from others. It is the opinion generally entertained of a person derived from the common report of the people who are acquainted with him; his reputation.[32] Good moral character includes all the elements essential to make up such a character; among these are common honesty and veracity, especially in all professional intercourse; a character that measures up as good among people of the community in which the person lives, or that is up to the standard of the average citizen; that status which attaches to a man of good behavior and upright conduct.[33] The rule is that the character or reputation of a party is regarded as legally irrelevant in determining a controversy, so that evidence relating thereto is not admissible. Ordinarily, if the issues in the case were allowed to be influenced by evidence of the character or reputation of the parties, the trial would be apt to have the aspects of a popularity contest rather than a factual inquiry into the merits of the case. After all, the business of the court is to try the case, and not the man; and a very bad man may have a righteous cause.[34] There are exceptions to this rule however and Section 51, Rule 130 gives the exceptions in both criminal and civil cases. In criminal cases, sub-paragraph 1 of Section 51 of Rule 130 provides that the accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged. When the accused presents proof of his good moral character, this strengthens the presumption of innocence, and where good character and reputation are established, an inference arises that the accused did not commit the crime charged. This view proceeds from the theory that a person of good character and high reputation is not likely to have committed the act charged against him.[35] Sub-paragraph 2 provides that the prosecution may not prove the bad moral character of the accused except only in rebuttal and when such evidence is pertinent to the moral trait involved in the offense charged. This is intended to avoid unfair prejudice to the accused who might otherwise be convicted not because he is guilty but because he is a person of bad character.[36] The offering of character evidence on his behalf is a privilege of the defendant, and the prosecution cannot comment on the failure of the defendant to produce such evidence.[37]Once the defendant raises the issue of his good character, the prosecution may, in rebuttal, offer evidence of the defendants bad character. Otherwise, a defendant, secure from refutation , would have a license to unscrupulously impose a false character upon the tribunal.[38] Both sub-paragraphs (1) and (2) of Section 51 of Rule 130 refer to character evidence of the accused.[39] And this evidence must be pertinent to the moral trait involved in the offense charged, meaning, that the character evidence must be relevant and germane to the kind of the act charged,[40] e.g., on a charge of rape, character for chastity; on a charge of assault, character for peacefulness or violence; on a charge for embezzlement, character for honesty and integrity.[41] Sub-paragraph (3) of Section 51 of the said Rule refers to the character of the offended party.[42] Character evidence, whether good or bad, of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged. Such evidence is most commonly offered to support a claim of self-defense in an assault or homicide case or a claim of consent in a rape case.[43] In the Philippine setting, proof of the moral character of the offended party is applied with frequency in sex offenses and homicide.[44] In rape and acts of lasciviousness or in any prosecution involving an unchaste act perpetrated by a man against a woman where the willingness of a woman is material, the womans character as to her chastity is admissible to show whether or not she consented to the mans act.[45] The exception to this is when the womans consent is immaterial such as in statutory rape[46] or rape with violence or intimidation.[47] In the crimes of qualified seduction[48] or consented abduction,[49] the offended party must be a virgin, which is presumed if she is unmarried and of good reputation,[50] or a virtuous woman of good reputation.[51] The crime of simple seduction involves the seduction of a woman who is single or a widow of good reputation, over twelve but under eighteen years of age x x x.[52] The burden of proof that the complainant is a woman of good reputation lies in the prosecution, and the accused may introduce evidence that the complainant is a woman of bad reputation.[53] In homicide cases, a pertinent character trait of the victim is admissible in two situations: (1) as evidence of the deceaseds aggression; and (2) as evidence of the state of mind of the accused.[54] The pugnacious, quarrelsome or trouble-seeking character of the deceased or his calmness, gentleness and peaceful nature, as the case may be, is relevant in determining whether the deceased or the accused was the aggressor. [55] When the evidence tends to prove self-defense, the known violent character of the deceased is also admissible to show that it produced a reasonable belief of imminent danger in the mind of the accused and a justifiable conviction that a prompt defensive action was necessary.[56] In the instant case, proof of the bad moral character of the victim is irrelevant to determine the probability or improbability of his killing. Accused-appellant has not alleged that the victim was the aggressor or that the killing

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was made in self-defense. There is no connection between the deceaseds drug addiction and thievery with his violent death in the hands of accused-appellant. In light of the positive eyewitness testimony, the claim that because of the victims bad character he could have been killed by any one of those from whom he had stolen, is pure and simple speculation. Moreover, proof of the victims bad moral character is not necessary in cases of murder committed with treachery and premeditation. In People v. Soliman,[57]a murder case, the defense tried to prove the violent, quarrelsome or provocative character of the deceased. Upon objection of the prosecution, the trial court disallowed the same. The Supreme Court held: x x x While good or bad moral character may be availed of as an aid to determine the probability or improbability of the commission of an offense (Section 15, Rule 123),[58] such is not necessary in the crime of murder where the killing is committed through treachery or premeditation. The proof of such character may only be allowed in homicide cases to show that it has produced a reasonable belief of imminent danger in the mind of the accused and a justifiable conviction that a prompt defensive action was necessary (Moran, Comments on the Rules of Court, 1952 ed., Vol. 3, p. 126). This rule does not apply to cases of murder.[59] In the case at bar, accused-appellant is charged with murder committed through treachery and evident premeditation. The evidence shows that there was treachery. Joseph was sitting in his living room watching television when accused-appellant peeped through the window and, without any warning, shot him twice in the head. There was no opportunity at all for the victim to defend himself or retaliate against his attacker. The suddenness and unexpectedness of the attack ensured his death without risk to the assailant. Following the ruling in People v. Soliman, where the killing of the victim was attended by treachery, proof of the victims bad character is not necessary. The presence of this aggravating circumstance negates the necessity of proving the victims bad character to establish the probability or improbability of the offense charged and, at the same time, qualifies the killing of Joseph Marquez to murder. As to the aggravating circumstance of evident premeditation, this cannot be appreciated to increase the penalty in the absence of direct evidence showing that accused-appellant deliberately planned and prepared the killing of the victim.[60] Neither can the aggravating circumstance of dwelling found by the trial court be applied in the instant case. The Information alleges only treachery and evident premeditation, not dwelling. Under Sections 8 and 9, Rule 110 of the Revised Rules of Criminal Procedure, a complaint or Information must specify the qualifying and aggravating circumstances in the commission of the offense.[61] The Revised Rules of Criminal Procedure took effect on December 1, 2000, and Section 8, Rule 110 is favorable to the accused. It may be applied retroactively to the instant case. Accordingly, without the aggravating circumstance of dwelling, the penalty of death was erroneously imposed by the trial court. There being no aggravating circumstance, there is no basis for the award of exemplary damages.[62] IN VIEW WHEREOF, the decision dated June 22, 1999 of the Regional Trial Court, Caloocan City, Branch 127 in Criminal Case No. C-54012 (98) is affirmed insofar as accused-appellant Noel Lee is found guilty of murder for the death of Joseph Marquez. The death sentence imposed by the trial court is however reduced to reclusion perpetua, there having been no aggravating circumstance in the commission of said crime. Except for the award of exemplary damages, the award of civil indemnity, other damages and costs are likewise affirmed. SO ORDERED.

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EN BANC [G.R. No. 132164. October 19, 2004] CIVIL SERVICE COMMISSION, petitioner, vs. ALLYSON BELAGAN, respondent. DECISION SANDOVAL-GUTIERREZ, J.: When the credibility of a witness is sought to be impeached by proof of his reputation, it is necessary that the reputation shown should be that which existed before the occurrence of the circumstances out of which the litigation arose,[1] or at the time of the trial and prior thereto, but not at a period remote from the commencement of the suit.[2] This is because a person of derogatory character or reputation can still change or reform himself. For our resolution is the petition for review on certiorari of the Court of Appeals Decision[3] dated January 8, 1998, in CA-G.R. SP. No. 44180, the dispositive portion of which reads: WHEREFORE, Resolution No. 966213 dated September 23, 1996 and Resolution No. 972423 dated April 11, 1997 of the respondent Civil Service Commission are hereby set aside. The complaint against petitioner Allyson Belagan filed by Magdalena Gapuz is hereby DISMISSED. The dismissal of petitioner Belagan is lifted and he is hereby ordered to be immediately reinstated to his position without loss of seniority, retirement, backwages and other rights and benefits. SO ORDERED. The instant case stemmed from two (2) separate complaints filed respectively by Magdalena Gapuz, founder/directress of the Mother and Child Learning Center, and Ligaya Annawi, a public school teacher at Fort Del Pilar Elementary School, against respondent Dr. Allyson Belagan, Superintendent of the Department of Education, Culture and Sports (DECS), all from Baguio City. Magdalena charged respondent with sexual indignities and harassment, while Ligaya accused him of sexual harassment and various malfeasances. Magdalenas sworn complaint alleges that sometime in March 1994, she filed an application with the DECS Office in Baguio City for a permit to operate a pre-school. One of the requisites for the issuance of the permit was the inspection of the school premises by the DECS Division Office. Since the officer assigned to conduct the inspection was not present, respondent volunteered his services. Sometime in June 1994, respondent and complainant visited the school. In the course of the inspection, while both were descending the stairs of the second floor, respondent suddenly placed his arms around her shoulders and kissed her cheek. Dumbfounded, she muttered, Sir, is this part of the inspection? Pati ba naman kayo sa DECS wala ng values? Respondent merely sheepishly smiled. At that time, there were no other people in the area. Fearful that her application might be jeopardized and that her husband might harm respondent, Magdalena just kept quiet. Several days later, Magdalena went to the DECS Division Office and asked respondent, Sir, kumusta yung application ko? His reply was Mag-date muna tayo. She declined, explaining that she is married. She then left and reported the matter to DECS Assistant Superintendent Peter Ngabit. Magdalena never returned to the DECS Division Office to follow up her application. However, she was forced to reveal the incidents to her husband when he asked why the permit has not yet been released. Thereupon, they went to the office of the respondent. He merely denied having a personal relationship with Magdalena. Thereafter, respondent forwarded to the DECS Regional Director his recommendation to approve Magdalenas application for a permit to operate a pre-school. Sometime in September 1994, Magdalena read from a local newspaper that certain female employees of the DECS in Baguio City were charging a high-ranking DECS official with sexual harassment. Upon inquiry, she learned that the official being complained of was respondent. She then wrote a letter-complaint for sexual indignities and harassment to former DECS Secretary Ricardo Gloria. On October 4, 1994, respondent was placed under suspension.

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On the part of Ligaya Annawi, she alleged in her complaint that on four separate occasions, respondent touched her breasts, kissed her cheek, touched her groins, embraced her from behind and pulled her close to him, his organ pressing the lower part of her back. Ligaya also charged respondent with: (1) delaying the payment of the teachers salaries; (2) failing to release the pay differentials of substitute teachers; (3) willfully refusing to release the teachers uniforms, proportionate allowances and productivity pay; and (4) failing to constitute the Selection and Promotion Board, as required by the DECS rules and regulations. The DECS conducted a joint investigation of the complaints of Magdalena and Ligaya. In his defense, respondent denied their charge of sexual harassment. However, he presented evidence to disprove Ligayas imputation of dereliction of duty. On January 9, 1995, the DECS Secretary rendered a Joint Decision[4] finding respondent guilty of four (4) counts of sexual indignities or harassments committed against Ligaya; and two (2) counts of sexual advances or indignities against Magdalena. He was ordered dismissed from the service. The dispositive portion of the Joint Decision reads: WHEREFORE, foregoing disquisitions duly considered, decision is hereby rendered in the two above-entitled cases, finding: a) Respondent Dr. Allyson Belagan, Superintendent of the DECS Baguio City Schools Division GUILTY of the four counts of sexual indignities or harassments committed against the person and honor of complainant Miss Ligaya Annawi, a Baguio City public school teacher, while in the performance of his official duties and taking advantage of his office. He is, however, ABSOLVED of all the other charges of administrative malfeasance or dereliction of duty.

b) Respondent Baguio City Superintendent Allyson Belagan likewise GUILTY of the two counts of sexual advances or indignitiescommitted against the person and honor of complainant Mrs. Magdalena Gapuz, a private school teacher of Baguio City, while in the performance of his official duties and taking advantage of his office. Consequently, respondent Allyson Belagan is HEREBY ORDERED DISMISSED from the government service, with prejudice to reinstatement and all his retirement benefits and other remunerations due him are HEREBY DECLARED FORFEITED in favor of the government. SO ORDERED.[5] Upon appeal, the Civil Service Commission (CSC), on September 23, 1996, promulgated Resolution No. 966213[6] affirming the Decision of the DECS Secretary in the case filed by Magdalena but dismissing the complaint of Ligaya. The CSC ruled that respondents transgression against Magdalena constitutes grave misconduct. Thus: The acts of Belagan are serious breach of good conduct since he was holding a position which requires the incumbent thereof to maintain a high degree of moral uprightness. As Division Superintendent, Belagan represents an institution tasked to mold the character of children. Furthermore, one of his duties is to ensure that teachers in his division conduct themselves properly and observe the proper discipline. Any improper behavior on his part will seriously impair his moral ascendancy over the teachers and students which can not be tolerated. Therefore, his misconduct towards an applicant for a permit to operate a private pre-school cannot be treated lightly and constitutes the offense of grave misconduct. WHEREFORE, respondent Allyson Belagan is hereby found guilty of grave misconduct and imposed the penalty of DISMISSAL from the service with all the accessory penalties. The decision of the DECS Secretary is modified accordingly.[7] On October 29, 1996, respondent seasonably filed a motion for reconsideration, contending that he has never been charged of any offense in his thirty-seven (37) years of service. By contrast, Magdalena was charged with several offenses before the Municipal Trial Court (MTC) of Baguio City, thus:

E V I D E N C E N E W S E T | 51
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. Criminal Case No. 43416 for LIGHT ORAL DEFAMATION (December 3, 1980) Criminal Case No. 45629 for SLIGHT PHYSICAL INJURIES (May 13, 1982) Criminal Case No. 45630 for GRAVE THREATS (May 13, 1982) Criminal Case No. 45914 for GRAVE THREATS (June 24, 1982) Criminal Case No. 51532 for MALICIOUS MISCHIEF (January 25, 1985) Criminal Case No. 51533 for LIGHT THREATS (January 25, 1985) Criminal Case No. 51556 for GRAVE ORAL DEFAMATION (January 30, 1985) Criminal Case No. 51818 for LIGHT ORAL DEFAMATION (March 18, 1985) Criminal Case No. 51819 for GRAVE ORAL DEFAMATION (March 18, 1985) Criminal Case No. 51820 for MALICIOUS MISCHIEF (March 18, 1985) Criminal Case No. 51821 for UNJUST VEXATION (March 18, 1985) Criminal Case No. 62173 for UNJUST VEXATION (May 29, 1991) Criminal Case No. 62172 for GRAVE ORAL DEFAMATION (May 29, 1991) Criminal Case No. 62754 for GRAVE ORAL DEFAMATION (December 2, 1986) Criminal Case No. 55642 for GRAVE ORAL DEFAMATION (December 2, 1986) Criminal Case No. 55423 for GRAVE ORAL DEFAMATION (October 24, 1986) Criminal Case No. 55846 for GRAVE ORAL DEFAMATION (November 4, 1986) Criminal Case No. 55800 for GRAVE ORAL DEFAMATION (January 7, 1987) Criminal Case No. 57312 for UNJUST VEXATION (November 29, 1987) Criminal Case No. 55643 for SLIGHT PHYSICAL INJURIES (December 13, 1985) Criminal Case No. 53404 for UNJUST VEXATION (December 13, 1985) Criminal Case No. 55422 for UNJUST VEXATION (October 24, 1986) [8]

In addition, the following complaints against Magdalena were filed with the Barangay Chairmen of Barangay Gabriela Silang and Barangay Hillside, both in Baguio City: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. Ordana vs. Gapuz (Brgy. Case No. 11-19-02-A) for GRAVE THREATS, UNJUST VEXATION, RUMOR MONGERING Teresita De Los Santos vs. Gapuz (Brgy. Case No. 86-8-26-8) for GRAVE THREATS & ORAL DEFAMATION Mrs. Conchita Ballesteros vs. Gapuz (Brgy. Case FALSE ACCUSATION No. 029) for ORAL DEFAMATION and

Mrs. Clara Baoas vs. Gapuz (Brgy. Case No. 030) for HARASSMENT and THREATS GABRIELA SILANG TANOD FORCES vs. Gapuz (Case No. 031) for HABITUAL TROUBLE MAKER Pablo Ortiz vs. Gapuz (November 1, 1979) for ORAL DEFAMATION C. Ballesteros vs. Gapuz (September 11, 1978) for ORAL DEFAMATION Mrs. Liza Ancheta vs. Gapuz (September 27, 1978) for RUMOR MONGERING Mr. Pananin (Beneco Personnel) (October 8, 1978) for ORAL DEFAMATION Mrs. Minda Valdez vs. Gapuz (November 6, 1978) for ORAL DEFAMATION WOMENS CLUB vs. GAPUZ (February 9, 1979) for ORAL DEFAMATION

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12. Vistro Salcedo case (May 8, 1979) Where Mrs. Gapuz was spreading rumors against Barangay Captain and Police Chief 13. Demolition Scandal (May 10, 1979) Where she called all the residents of their Barangay for an emergency meeting and where she shouted invectives against the residents 14. Incident of June 13, 1979 Mrs. Gapuz shouted invectives against the Barangay Sanitary Inspector 15. Incident of August 25, 1979 Mrs. Gapuz shouted invectives against the servants of Mr. De Leon 16. Incident of August 26, 1979 Mrs. Gapuz terrorized the council meeting 17. Incident of September 2, 1978 Mrs. Clara Baoas was harassed by Mrs. Gapuz 18. Incident of September 9, 1979 Mrs. Gapuz quarreled with Mrs. C. Ballesteros during the council meeting 19. Incident of September 10, 1979 Mrs. Gapuz was hurling invectives along her alley in the early morning 20. Incident of September 13, 1979 Mrs. Gapuz tapped electric wire from Mrs. Tessie de los Santos with the latters consent 21. Incident of September 21, 1979 Mrs. Gapuz was shouting and hurling invectives scandalously around her residence 22. Incident of September 21, 1979 Mrs. Gapuz was shouting, complaining about alleged poisoned sardines near the premises of her residence which killed her hen. 23. Incident of September 23, 1979 Mrs. Gapuz was shouting unpleasant words around the neighborhood. She did not like the actuations of a bayanihan group near the waiting shed.[9] Respondent claimed that the numerous cases filed against Magdalena cast doubt on her character, integrity, and credibility. In its Resolution No. 972423[10] dated April 11, 1997, the CSC denied respondents motion for reconsideration, holding that: The character of a woman who was the subject of a sexual assault is of minor significance in the determination of the guilt or innocence of the person accused of having committed the offense. This is so because even a prostitute or a woman of ill repute may become a victim of said offense. As such, the fact that complainant Magdalena Gapuz is shown to have had cases before the regular courts for various offenses and was condemned by her community for wrongful behavior does not discount the possibility that she was in fact telling the truth when she cried about the lecherous advances made to her by the respondent. x x x Respondent then filed with the Court of Appeals a petition for review. As stated earlier, it reversed the CSC Resolutions and dismissed Magdalenas complaint.

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The Appellate Court held that Magdalena is an unreliable witness, her character being questionable. Given her aggressiveness and propensity for trouble, she is not one whom any male would attempt to steal a kiss. In fact, her record immediately raises an alarm in any one who may cross her path.[11] In absolving respondent from the charges, the Appellate Court considered his unblemished service record for 37 years. Unsatisfied, the CSC, through the Solicitor General, filed the instant petition raising the following assignments of error: I. The Supreme Court may rule on factual issues raised on appeal where the Court of Appeals misappreciated the facts. Furthermore, where the findings of the Court of Appeals and the trial court are contrary to each other, the Supreme Court may review the record and evidence. The Court of Appeals erred in not giving credence to the testimony of complainant Magdalena Gapuz despite convincing and overwhelming signs of its truthfulness. II. The Court of Appeals committed reversible error when it failed to give due weight to the findings of the DECS, which conducted the administrative investigation, specifically with respect to the credibility of the witnesses presented. III. The Court of Appeals erred in ruling that respondent should be penalized under Sec. 22 (o) of the Omnibus Rules Implementing Book V and not Sec. 22 (e) of said rules.[12] In his comment, respondent maintains that Magdalenas derogatory record undermines the verity of her charge and that the Court of Appeals is correct in dismissing it. The petition is impressed with merit. The pivotal issue before us is whether complaining witness, Magdalena Gapuz, is credible. This is a question of fact which, as a general rule, is not subject to this Courts review. It is a rule of long standing that factual findings of the Court of Appeals, if supported by substantial evidence, are conclusive and binding on the parties and are not reviewable by this Court.[13] This Court is, after all, not a trier of facts. One of the exceptions, however, is when the findings of the Court of Appeals are contrary to those of the trial court or a quasi-judicial body, like petitioner herein.[14] Here, the Court of Appeals and the CSC are poles apart in their appreciation of Magdalenas derogatory record. While the former considered it of vital and paramount importance in determining the truth of her charge, the latter dismissed it as of minor significance. This contrariety propels us to the elusive area of character and reputation evidence. Generally, the character of a party is regarded as legally irrelevant in determining a controversy.[15] One statutory exception is that relied upon by respondent, i.e., Section 51 (a) 3, Rule 130 of the Revised Rules on Evidence, which we quote here: SEC. 51. Character evidence not generally admissible; exceptions. (a) In Criminal Cases: xxx xxx

(3) The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged. It will be readily observed that the above provision pertains only to criminal cases, not to administrative offenses. And even assuming that this technical rule of evidence can be applied here, still, we cannot sustain respondents posture. Not every good or bad moral character of the offended party may be proved under this provision. Only those which would establish the probability or improbability of the offense charged. This means that the character evidence must be limited to the traits and characteristics involved in the type of offense charged. [16] Thus, on a charge of rape - character for chastity, on a charge of assault - character for peaceableness or violence, and on a charge of embezzlement - character for honesty.[17] In one rape case, where it was established that the alleged victim was morally loose and apparently uncaring about her chastity, we found the conviction of the accused doubtful.[18]

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In the present administrative case for sexual harassment, respondent did not offer evidence that has a bearing on Magdalenas chastity. What he presented are charges for grave oral defamation, grave threats, unjust vexation, physical injuries, malicious mischief, etc. filed against her. Certainly, these pieces of evidence are inadmissible under the above provision because they do not establish the probability or improbability of the offense charged. Obviously, in invoking the above provision, what respondent was trying to establish is Magdalenas lack of credibility and not the probability or the improbability of the charge. In this regard, a different provision applies. Credibility means the disposition and intention to tell the truth in the testimony given. It refers to a persons integrity, and to the fact that he is worthy of belief.[19] A witness may be discredited by evidence attacking his general reputation for truth,[20] honesty[21] or integrity.[22] Section 11, Rule 132 of the same Revised Rules on Evidence reads: SEC. 11. Impeachment of adverse partys witness. A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honesty, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense. Although she is the offended party, Magdalena, by testifying in her own behalf, opened herself to character or reputation attack pursuant to the principle that a party who becomes a witness in his own behalf places himself in the same position as any other witness, and may be impeached by an attack on his character or reputation.[23] With the foregoing disquisition, the Court of Appeals is correct in holding that the character or reputation of a complaining witness in a sexual charge is a proper subject of inquiry. This leads us to the ultimate question is Magdalenas derogatory record sufficient to discredit her credibility? A careful review of the record yields a negative answer. First, most of the twenty-two (22) cases filed with the MTC of Baguio City relate to acts committed in the 80s, particularly, 1985 and 1986. With respect to the complaints filed with the Chairmen of Barangay Gabriela Silang and Barangay Hillside, the acts complained of took place in 1978 to 1979. In the instant administrative case, the offense was committed in 1994. Surely, those cases and complaints are no longer reliable proofs of Magdalenas character or reputation. The Court of Appeals, therefore, erred in according much weight to such evidence. Settled is the principle that evidence of ones character or reputation must be confined to a time not too remote from the time in question.[24]In other words, what is to be determined is the character or reputation of the person at the time of the trial and prior thereto, but not at a period remote from the commencement of the suit.[25] Hence, to say that Magdalenas credibility is diminished by proofs of tarnished reputation existing almost a decade ago is unreasonable. It is unfair to presume that a person who has wandered from the path of moral righteousness can never retrace his steps again. Certainly, every person is capable to change or reform. Second, respondent failed to prove that Magdalena was convicted in any of the criminal cases specified by respondent. The general rule prevailing in a great majority of jurisdictions is that it is not permissible to show that a witness has been arrested or that he has been charged with or prosecuted for a criminal offense, or confined in jail for the purpose of impairing his credibility.[26] This view has usually been based upon one or more of the following grounds or theories: (a) that a mere unproven charge against the witness does not logically tend to affect his credibility, (b) that innocent persons are often arrested or accused of a crime, (c) that one accused of a crime is presumed to be innocent until his guilt is legally established, and (d) that a witness may not be impeached or discredited by evidence of particular acts of misconduct.[27] Significantly, the same Section 11, Rule 132 of our Revised Rules on Evidence provides that a witness may not be impeached by evidence of particular wrongful acts. Such evidence is rejected because of the confusion of issues and the waste of time that would be involved, and because the witness may not be prepared to expose the falsity of such wrongful acts.[28] As it happened in this case, Magdalena was not able to explain or rebut each of the charges against her listed by respondent. But more than anything else, what convinces us to sustain the Resolution of the CSC is the fact that it is supported by substantial evidence. As aptly pointed out by the Solicitor General, Magdalena testified in a straightforward, candid and spontaneous manner. Her testimony is replete with details, such as the number of times she and respondent inspected the pre-school, the specific part of the stairs where respondent kissed her,

E V I D E N C E N E W S E T | 55
and the matter about her transient boarders during summer. Magdalena would not have normally thought about these details if she were not telling the truth. We quote her testimony during the cross-examination conducted by DECS Assistant Secretary Romeo Capinpin and Undersecretary Antonio Nachura, thus: Q Was there any conversation between you and Dr. Belagan during the inspection on the first floor and the second floor? A Q A Q A There was, sir. It was a casual conversation that we had with regard to my family, background, how the school came about, how I started with the project. That was all, sir. Nothing about any form of sexual harassment, in words or in deeds? Sir, because he inspected the second floor twice, sir. We went up to the stairs twice, sir. Why? I really dont know what was the reason behind, sir. But on the second inspection, sir, I told him that as of that time I had some transients with me. I was making use of the premises for transients because that was summer then, sir. And I already started paying the place so I said, Sir, I have some transients with me in the evening and he said, You know Mrs. Gapuz, I am interested to stay in one of the rooms as one your boarders. But I respectfully declined saying, Sir, I think for delicadeza I cannot accept you. Not that I dont want you to be here but people might think that I am keeping you here and that would prejudice my permit, sir.

ASEC R. CAPINPIN: Q A Q A Q A Q A Q A Q A Q A When did the alleged kissing occur? Was it during the first time that you went up with him or the second time? No, sir, on the second time, sir. Second time? Yes, sir. We were going down, sir. And you were going down? Yes, sir. Do you recall what portion of the stairs where you were during the alleged kissing? Sir, on the topmost of the stairs. Before you went down? Yes, sir. At the topmost because there is a base floor going up to the stairs and it has 16 steps. So, it was not on the 16th step but still on the topmost? Yes sir. Part of the floor of the building? Yes, sir. Topmost, sir?

ASEC R. CAPINPIN: Q A Will you kindly tell us your relative position at that time? Sir, on the second time that we went up and I mentioned about these transients that I had then and he wanted to stay in the place in one of the rooms and then I declined and I was still showing the rooms simultaneously. On the last, the biggest room that I had, he said, No. Never mind, I am not going to see that anymore. So he waited for me there and upon reaching the place, as I was to step down on the first step going down, he placed his arm and held me tightly and planted the kiss on my cheek, sir. You said that he wanted to stay in one of the rooms?

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A Q A Q A Q A Yes, sir, as a boarder. Is that room used for transients? During that time, sir, during the summertime, I made use of the time to get some transients. And he was telling you that he wanted to occupy one of the rooms? Yes, but I declined, sir for delicadeza. At that time, there were no transients yet. When he came over for the inspection sir, nobody was there.[29]

The above testimony does not stand in isolation. It is corroborated by Peter Ngabit, DECS Assistant Division Superintendent. Ngabit testified that Magdalena reported to him that respondent kissed her and asked her for a date. Q I would like to call your attention to Exhibit A which is the affidavit of Mrs. Magdalena B. Gapuz, particularly item no. 8, and may I read for your information That the Monday after the incident, I went to the DECS Division Office expecting to get favorable recommendation from the DECS Regional Office for the issuance of my permit. That I proceeded to the Superintendent and asked him, Sir, kumusta yung application ko and he said, mag date muna tayo but I refused and explained that I am married, after which I proceeded to the Office of Asst. Superintendent Peter Ngabit to relate the incident and then left the Division Office. Do you remember if Mrs. Gapuz went to your Office on the particular day? A Q A Q A Q A Q A Q A Yes, sir. What time was that? I cannot remember, sir. Was it morning, afternoon? I think it was in the morning, sir. Morning. Yes, sir. Early morning? About noon, sir. What transpired between you and Mrs. Gapuz in your office? When she came to my Office, she was relating about that and she was even insulting me saying among others that I was a useless fixture in that Office because I cannot do anything with the processing of her paper or application. It says here that she would relate the incident to you. Did she relate any incident? Yes, she did sir. What was that incident all about? She was saying that when Mr. Belagan went to visit her school, he stole a kiss from her and that she was saying that when she asked Supt. Belagan for her papers, she was asked for a date before the Indorsement. After that, she left.[30]

Q A Q A

With Magdalenas positive testimony and that of Ngabit, how can we disregard the findings of the DECS and the CSC? Surely, we cannot debunk it simply because of the Court of Appeals outdated characterization of Magdalena as a woman of bad reputation. There are a number of cases where the triers of fact believe the testimony of a witness of bad character[31] and refuse to believe one of good character.[32] As a matter of fact, even a witness who has been convicted a number of times is worthy of belief, when he testified in a straightforward and convincing manner.[33]

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At this juncture, it bears stressing that more than anybody else, it is the DECS investigating officials who are in a better position to determine whether Magdalena is telling the truth considering that they were able to hear and observe her deportment and manner of testifying.[34] In reversing the CSCs Resolutions, the Court of Appeals ruled that there is ample evidence to show that Magdalena had a motive in accusing respondent, i.e., to pressure him to issue a permit. This is unconvincing. The record shows that respondent had already issued the permit when Magdalena filed her letter-complaint. Indeed, she had no more reason to charge respondent administratively, except of course to vindicate her honor. Petitioner prays that we sustain its ruling penalizing respondent for grave misconduct and not merely for disgraceful or immoral conduct which is punishable by suspension for six (6) months and one (1) day to one (1) year for the first offense.[35] Misconduct means intentional wrongdoing or deliberate violation of a rule of law or standard of behavior, especially by a government official.[36] To constitute an administrative offense, misconduct should relate to or be connected with the performance of the official functions and duties of a public officer. [37] In grave misconduct as distinguished from simple misconduct, the elements of corruption, clear intent to violate the law or flagrant disregard of established rule, must be manifest.[38] Corruption as an element of grave misconduct consists in the act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others.[39] This is apparently present in respondents case as it concerns not only a stolen kiss but also a demand for a date, an unlawful consideration for the issuance of a permit to operate a pre-school. Respondents act clearly constitutes grave misconduct, punishable by dismissal.[40] We are, however, not inclined to impose the penalty of dismissal from the service. Respondent has served the government for a period of 37 years, during which, he made a steady ascent from an Elementary Grade School Teacher to Schools Division Superintendent. In devoting the best years of his life to the education department, he received numerous awards.[41] This is the first time he is being administratively charged. He is in the edge of retirement. In fact, he had filed his application for retirement when Magdalena filed her complaint. Section 16, Rule XIV, of the Rules Implementing Book V of Executive Order No. 292 provides: SEC. 16. In the determination of penalties to be imposed, mitigating and aggravating circumstances may be considered. x x x. The mitigating circumstances are enumerated in Section 53, Rule IV, of the Uniform Rules on Administrative Cases in the Civil Service,[42]which reads in part: SEC. 53. Extenuating, Mitigating, Aggravating, or Alternative Circumstances. In the determination of the penalties to be imposed, mitigating, aggravating and alternative circumstances attendant to the commission of the offense shall be considered. The following circumstances shall be appreciated: xxxxxx j. length of service xxxxxx l. and other analogous cases. Conformably with our ruling in a similar case of sexual harassment,[43] and respondents length of service, unblemished record in the past and numerous awards,[44] the penalty of suspension from office without pay for one (1) year is in order. While we will not condone the wrongdoing of public officers and employees, however, neither will we negate any move to recognize and remunerate their lengthy service in the government. WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated January 8, 1998 in CA-G.R. SP No. 44180 is REVERSED. The CSC Resolution Nos. 966213 and 972423 are AFFIRMED, subject to the modification that respondent ALLYSON BELAGAN is SUSPENDED from office without pay for ONE (1) YEAR, with full credit of his preventive suspension.SO ORDERED.

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G.R. No. L-25966 December 28, 1979 FERMIN A. BAGADIONG, petitioner, vs. HON. FELICIANO S. GONZALES, Judge of the Court of First Instance of Catanduanes, CLEMENTE ABUNDO, RAFAEL VILLANLUNA and FRANCISCO A. PERFECTO, respondents.

DE CASTRO, J.: This is a special civil action for certiorari instituted on April 27, 1966 by the petitioner to annul the order 1 dated April 18, 1966 of respondent Judge of the Court of First Instance of Catanduanes in Civil Case No. 546, entitled "Clemente Abundo and Rafael Villaluna, plaintiffs, versus Jorge V. Almojuela, Dominador Monjardin, Fermin A. Bagadiong and Armando Ala, defendants, Francisco A. Perfecto, intervenor." Alleged as ground for the petition is that the order was issued with grave abuse of discretion, amounting to lack of jurisdiction. The facts are as follows: On January 12, 1966, the herein plaintiffs-respondents filed a aforementioned Civil Case No. 546 for prohibition with preliminary prohibitory and mandatory injunction with the Court of First Instance of Catanduanes against defendants Jorge V. Almojuela, Dominador Monjardin, Fermin A. Bagadiong (the herein petitioner) and Armando Ala who are the Governor, Vice Governor, Provincial Treasurer and Provincial Auditor of the Province of Catanduanes, respectively. In the said petition, it is alleged that defendants, including the herein petitioner, are authorizing, approving and effecting the disbursements of public funds of the province for purposes stated in the alleged annual Provincial Budget of the Province for the Fiscal Year 1965-1966 purporting on its face to have been approved by the Provincial Board on August 23, 1965 under Resolution No. 62-A; that the aforesaid budget is falsified document because the Provincial Board never approved the same, the alleged Provincial Board Resolution No. 62-A which is claimed to have approved the said Budget does not exist; that upon discovery of the anomaly, plaintiffs Clemente Abundo and Rafael Villaluna made representations with the Secretary of Finance on November 17, 1965, to have the alleged Board Resolution No. 62-A approving the budget, considered null and void because the said plaintiffs never took part in the deliberation approving the said Resolution; that for the defendants to continue making disbursements of public funds under the falsified budget, the people and the government of the Province of Catanduanes will suffer irreparable damage and injury from which there is no other plain, speedy and adequate remedy in the ordinary course of law except the instant petition. Plaintiffs pray that pending resolution of the petition on the merits, a preliminary injunction be issued restraining the defendants from authorizing, approving and effecting the disbursements of public funds on the basis of the said budget. 2 On January 14, 1966, a writ of preliminary injunction was issued by the respondent Judge against the defendants commanding them to desist from authorizing and making any further disbursements of funds from the budget in question. On January 17, 1966, the defendants filed a motion for reconsideration and to dissolve the writ of preliminary injunction. 3 A complaint in intervention 4 was filed on January 21, 1966 by herein respondent Francisco A. Perfecto praying, among others, that the annual budget of the Province of Catanduanes for the fiscal year 1965-1966 be declared null and void ab initio, the same being falsification that all original parties to the case be ordered to refund the province all moneys purportedly appropriated under the falsified budget and disbursed and collected by them, respectively; and that all the said original parties be condemned, jointly and severally, to pay the Province of Catanduanes an amount equal to all disbursements under the falsified budget, by way of exemplary damages. On January 31, 1966, the respondent judge denied the motion to vacate and lift the writ of preliminary injunction in an order 5 dated January 31, 1966. When the Civil Case No. 546 was called for trial on April 18, 1966, counsel for plaintiffs called one of the defendants, the herein petitioner, Fermin A. Bagadiong, to the witness stand as one of the witnesses for the plaintiffs. Counsel for the defendants raised the objection that the said party cannot be called as a witness for the plaintiffs because it would violate his constitutional right against self-incrimination. On the other hand, counsel for the plaintiffs contended that this being purely a civil action, the right against self-incrimination is not involved, and if any testimony elicited from the herein petitioner would tend to incriminate himself, there would be ample time for the herein petitioner to raise the proper objection.

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The respondent Judge in his order held that the position taken by the counsel for the plaintiffs is legally correct, thereby, ruling that the petitioner may testify as a witness for the plaintiffs. After a verbal motion to reconsider the aforesaid order was denied by the respondent Judge, the herein petitioner filed with this Court the instant petition, claiming as earlier stated, that the respondent Judge acted in excess of his jurisdiction and/or with grave abuse of discretion in allowing the herein petitioner to testify for the respondents in Civil Case No. 546, and that there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law. After the respondents have filed their answer to the instant petition, as required by this Court, both parties submitted their respective memoranda in lieu of oral argument, after which the case was considered submitted for decision. The principal issue raised in the instant case is whether or not respondent Judge acted in excess of his jurisdiction and with grave abuse of discretion in allowing the herein petitioner to testify as a witness for the herein respondents, despite his claim of violating his right against self-incrimination. The petitioner contends that the provision of the Rules of Court which authorizes a party to call the adverse party to the witness stand applies only to purely civil actions where the defendant does not run the risk of being prosecuted for any offense. Likewise, the petitioner assets that the right against self-incrimination can only be claimed when the incriminatory question is being propounded and not before, by a mere witness, but not by a party defendant, as in the case at bar. We find no merit to these contentions. There is no legal impediment for a party to call any of the adverse parties to be his witness, as clearly provided in Section 6, Rule 132 of the Rules of Court which expressly provides: A party may interrogate any unwilling or hostile witness by leading questions. A party may call on adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be crossexamined by the adverse party only upon the subject-matter of his examination in chief. It is in a criminal case, when the accused may not be compelled to testify, or to so much as utter a word, even for his own defense. 7 But while the constitutional guaranty against self-incrimination protects a person in all types of cases, be they criminal, civil or administrative, 8 said privilege, in proceedings other than a criminal case against him who invokes it, is considered an option to refuse to answer incriminating question, and not a prohibition of inquiry. As aptly stated by this Court in the case of Gonzales vs. Secretary of Labor, et al: 9 Except in criminal cases, there in no rule prohibiting a party litigant form utilizing his adversary as a witness. As a matter of fact, Section 83 of Rule 123, Rules of Court, expressly authorizes a party to call an adverse party to the witness stand and interrogate him. This rule is, of course, subject to the constitutional injunction not to compel any person to testify against himself. But it is established that the privilege against self-incrimination must be invoked at the proper time, and the proper time to invoke it is when a question calling for a criminating answer is propounded. This has to be so, because before a question is asked there would be no way of telling whether the information to be elicited from the witness is self-incriminating or not. As stated in Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been summoned to testify "cannot decline to appear, nor can he decline to be sworn as a witness" and "no claim of privilege can be made until a question calling for a criminating answer is asked; at that time, and generally speaking, at that time only, the claim of privilege may properly be imposed." (Emphasis supplied). In the instant case, petitioner invoked the privilege even prior to any question being propounded, and simply declined to take the witness stand. In the above-cited Gonzales case, it will be noted that the privilege against self-incrimination must be invoked when a question calling for an incriminating answer is propounded, because
6

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before a question is asked, there would be no way of telling whether the information to be elicited from the witness is self-incriminating or not. Moreover, the herein petitioner was being directed to take the stand, not in a criminal case where he is an accused but in civil action. This is expressly permitted by Section 6, Rule 132 of the Rules of Court which authorizes a party to call any adverse party as his witness. In the later case of Suarez v. Tengco, 2 SCRA 71, 73-74, the following was stated: Here, petitioner invoked the privilege even prior to any question, and simply declined to take the witness stand. Note that in the Gonzales case, above-cited, the adverse party was directed to take the witness stand in proceedings to investigate an alleged failure to pay overtime compensation, which, under corresponding special laws, carries a penal sanction. Here, petitioner was being directed to take the stand, not in a criminal case where he is an accused, but in an independent civil action which, although arising from the same facts involved in a criminal case pending before the same court, is still be regarded by law as an "entirely separate and distinct" action, governed by a corresponding different set of rules (Civil Code of the Phil., Art. 2177). The almost exact similarity of the instant case and the case just cited leaves no room for doubt, and there is complete justification therefore that the same ruling must be applied here. WHEREFORE, the instant petition to prohibit the respondent judge from directing petitioner to take the witness stand and testify is denied, without prejudice to petitioner's properly invoking the guaranty against selfincrimination when questions are propounded to him on the stand. Costs against the petitioner. SO ORDERED.

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G.R. No. 71537 September 17, 1987 EMILIO DE LA PAZ, JR., ENRIQUE DE LA PAZ, MANUELA DE LA PAZ, NATIVIDAD DE LA PAZ, MARGARITA DE LA PAZ and ZENAIDA DE LA PAZ, petitioners, vs. HON. INTERMEDIATE APPELLATE COURT, ADELAIDA S. TRINIDAD, CONRADO P. SANTOS, JR., CESAR P. SANTOS, FELICITAS S. DE LEON, PONCIANITO P. SANTOS, SR., EVANGELINE S. TANSINGCO, ANTONIO P. SANTOS, and JAIME P. SANTOS, respondents. GUTIERREZ, JR., J.: The petitioners have lumped in one amended petition an original action for certiorari to set aside the decision of the Regional Trial Court, Branch 71 at Antipolo, Rizal, in Civil Case No. 164-A and a petition for review to nullify the decision of the Intermediate Appellate Court in AC-G.R. SP No. 05472. The records show the following incidents which transpired prior to the filing of the instant petition. On May 12, 1983, Loreto de la Paz filed a complaint against the petitioners with the Regional Trial Court of Rizal for a judicial declaration of ownership of a 43,830 square meter parcel of land covered by Original Certificate of Title No. 901 of the Register of Deeds, Rizal in the name of Ponciano de la Paz with damages. The case was docketed as Civil Case No. 164-A. Loreto alleged that the subject parcel of land was among the properties adjudicated to her and her mother as a result of a partition submitted by the heirs of Ponciano de la Paz and approved by the court in Civil Case No. 1399 of the Court of First Instance of Rizal. The subject matter of Civil Case No. 1399 was Ponciano's testate estate. In their answer, the petitioners denied that the disputed lot was among the properties adjudicated to Loreto and her mother. They claimed that the parcel of land was not accounted for in the probate proceedings but is actually community property of the parties. The parties, except for petitioner Enrique de la Paz, were admittedly compulsory heirs of Ponciano de la Paz who died in 1916. Loreto was the only legitimate child of Ponciano while: 1) Emilio de la Paz, Jr., is the son of Emilio, a recognized natural child of Ponciano; 2) Manuela de la Paz is the recognized natural child of Ponciano; 3) Natividad de la Paz is the daughter of Emilio, recognized natural child of Ponciano; 4) Margarita de la Paz is the daughter of Wenceslao, a recognized natural child of Ponciano; and 5) Zenaida de la Paz, is the daughter of Augusto, another recognized natural child of Ponciano. As regards petitioner Enrique de la Paz, Loreto denied his claim that he is one of the heirs of Ponciano. The petitioners, however, allege that he is also a compulsory heir of Ponciano, he being the son of Ponciano de la Paz, Jr., the eldest child of the decedent. The parties failed to arrive at an amicable settlement during pre-trial. Hence, trial on the merits followed. Loreto took the witness stand. She finished her direct testimony on March 12, 19984. On April 25, 1984, the petitioners' counsel began his cross-examination of Loreto. The cross-examination was, however, not completed. The petitioners' counsel moved in open court for the continuance of the crossexamination on the ground that he still had to conduct a lengthy cross-examination. (p. 17, Court of Appeals' rollo). On May 18, 1984, Loreto's counsel filed a motion for "correction of transcript" due to some errors in the transcript of stenographic notes taken during the direct testimony of Loreto. The motion was granted. This order granting the correction prompted the petitioners'' counsel to manifest that he would not be able to undertake the cross-examination of the witness as scheduled. He asked for the postponement of the May 23, 1984 hearing. The trial court postponed the trial of the case to May 31, 1984 and later to July 5, and 11, 1984. (p. 16, Court of Appeals' rollo)

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On August 13, 1984, trial resumed. The petitioners' counsel, however, asked for still another postponement of the cross-examination to give him a chance to go over the stenographic notes. In an order of the same date, the hearing was again postponed. (p. 17, Court of Appeals' rollo) During the scheduled trial on September 14, 1984, neither the petitioners, nor their counsel appeared despite due notice. Loreto's counsel, therefore, filed a motion that she be allowed to present evidence ex parte before a commissioner. The motion was granted and Loreto presented additional evidence ex parte in the afternoon of the same day. On this same date, she finished the presentation of her evidence and submitted her case for decision. Despite this development, the petitioners upon their motion were allowed to cross-examine Loreto. On the scheduled hearing set on September 18, 1984, the petitioners' counsel failed to appear, and the crossexamination of Loreto was deferred for the fourth (4th) time. (p. 17, Court of Appeals' rollo) Finally, on November 7, 1984, the petitioners' counsel resumed his repeatedly postponed cross-examination of Loreto. The cross-examination was, however, cut short and rescheduled again on motion of the petitioners' counsel. Unfortunately, Loreto died on December 1, 1984. An amended complaint was filed for the purpose of substituting the respondents, herein, they being the children and heirs of Loreto. At the resumption of the trial on January 21, 1985, the petitioners moved verbally to strike off the record the entire testimony of Loreto. The motion was denied. A verbal motion for reconsideration was likewise denied. In view of the petitioners' manifestation that they will appeal the ruling the appellate court, the trial court issued on January 24, 1985 a more detailed order denying the motion to strike off the record Loreto's testimony. (p. 17, Court of Appeals' rollo). On February 11, 1985, the trial court issued another order allowing, among other things, the private respondents to present their exhibits. A controversy as to the contents of this February 11, 1985 order will be discussed later. On February 18, 1985, the petitioners filed a petition with the Intermediate Appellate Court to annul the lower court's orders dated January 24, 1985 and February 11, 1985 and to prohibit the court from further proceeding in Civil Case No. 164-A. The petition for certiorari and prohibition was docketed as AC-G.R. SP. No. 05472. This petition notwithstanding, the lower court continued the proceedings in Civil Case No. 164-A. Thus, on March 29, 1985, the lower court promulgated a decision in Civil Case No. 164-A declaring the private respondents, the children and heirs of Loreto, as the true owners of the subject parcel of land. Damages were also awarded in favor of the private respondents. The dispositive portion of the decision reads: IN VIEW OF THE FOREGOING, JUDGMENT is hereby rendered (a) Declaring plaintiffs as the true and lawful owners of the parcel of land covered by Original Certificate of Title No. 901 of the Register of Deeds of Rizal; (b) Ordering the defendants to surrender the owner's duplicate copy of Original Certificate of Title No. 901; (c) Directing the Register of Deeds of Rizal, Pasig Branch to cancel Original Certificate of Title No. 901 and to issue a new one in the names of the plaintiffs; (d) Ordering the defendants jointly and severally to pay to the plaintiffs Five Hundred Thousand Pesos (P500,000.00) as actual damages, Five Hundred Thousand Pesos (P500,000.00) as moral damages, Five Hundred Thousand Pesos (P500,000.00) as exemplary or corrective damages, Fifty Thousand Pesos (P50,000.00) as attorney's fees, plus the costs; and

E V I D E N C E N E W S E T | 63
(e) Dismissing the defendants counterclaim. (pp. 13-14, rollo) On June 20, 1985, the appellate court also rendered a decision in AC-G. R. SP No. 05472. The petition was denied due course and dismissed. A motion for reconsideration was denied for lack of merit. Initially, the petitioners filed only a petition to review on certiorari the appellate court's decision and resolution respectively. Upon motion of the petitioners, we admitted the amended petition which now seeks to annul the decision of the lower court in Civil Case No. 164-A aside from setting aside the appellate court's decision and resolution in ACG.R. SP No. 05472. In another resolution dated January 20, 1986, we gave due course to the petition and considered the respondents' comments as answer. We first review the challenged decision and order of the appellate court. The petitioners contend that the appellate committed grave abuse of discretion when it sanctioned the trial court's orders which denied the striking out of the testimony of original plaintiff Loreto de la Paz from the record. A motion to strike off testimony from the record is an interlocutory order. Well-settled is the rule that interlocutory orders may not be subjects of a petition of certiorari unless issued in patent abuse of discretion. (See Villalon, Jr. v. Intermediate Appellate Court, 144 SCRA 443; Bautista v. Sarmiento, 138 SCRA 587). We see no grave abuse of discretion on the part of the trial court when it issued the questioned order. True, we have consistently ruled on the nature of the right of cross-examination, to wit: The right of a party to confront and cross-examine opposing witnesses in a judicial litigation, be it criminal or civil in nature, or in proceedings before administrative tribunals with quasi-judicial powers, is a fundamental right which is part of due process. (Savory Luncheonette v. Lakas ng Manggagawang Pilipino, et al., 1975, 62 SCRA 258). xxx xxx xxx The right of a party to cross-examine the witness of his adversary in invaluable as it is inviolable in civil cases, no less than the right of the accused in criminal cases. The express recognition of such right of the accused in the Constitution does not render the right thereto of parties in civil cases less constitutionally based, for it is an indispensable part of the due process guaranteed by the fundamental law. ... Until such cross-examination has been finished, the testimony of the witness cannot be considered as complete and may not, therefore, be allowed to form part of the evidence to be considered by the court in deciding the case. (Bacrach Motor Co., Inc., v. Court of Industrial Relations, 86 SCRA 27 citing Savory Luncheonette v. Lakas ng Manggagawang Pilipino, et al., supra, Ortigas, Jr. vs. Lufthansa German Airlines, 64 SCRA 610) But we have also ruled that it is not an absolute right which a party can demand at all times. This Court has stated that: xxx xxx xxx the right is a personal one which may be waived expressly or impliedly by conduct amounting to a renunciation of the right of cross-examination. Thus, where a party has had the opportunity to crossexamine a witness but failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony given on direct examination of the witness will be received or allowed to remain in the record. The conduct of a party which may be construed as an implied waiver of the right to cross-examine may take various forms. But the common basic principle underlying the application of the rule on implied

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waiver is that the party was given the opportunity to confront and cross-examine an opposing witness but failed to take advantage of it for reasons attributable to himself alone. xxx xxx xxx The case of the herein petitioner, Savory Luncheonette, easily falls within the confines of the jurisprudence given above. Private respondents through their counsel, Atty. Amante, were given not only one but five opportunities to cross-examine the witness, Atty. Morabe, but despite the warnings and admonitions of respondent court for Atty. Amante to conduct the cross-examination or else it will be deemed waived, and despite the readiness, willingness and insistence of the witness that he be crossexamined, said counsel by his repeated absence and/or unpreparedness failed to do so until death sealed the witness' lips forever. By such repeated absence and lack of preparation on the part of the counsel of private respondents, the latter lost their right to examine the witness, Atty. Morabe, and they alone must suffer the consequences. The mere fact that the witness died after giving his direct testimony is no ground in itself for excluding his testimony from the record so long as the adverse party was afforded an adequate opportunity for cross-examination but through fault of his own failed to crossexamine the witness. (Savory Luncheonette v. Lakas ng Manggagawang Pilipino,supra; at pp. 263-267) In the case at bar, the petitioners' failure to cross-examine Loreto was through no fault of the respondents. As can be gleaned from the record, Loreto was available for cross-examination from the time she finished her direct testimony on March 12, 1984 to November 7, 1984, the last scheduled hearing of the case before her death on December 1, 1984. The petitioners not only kept on postponing the cross-examination but at times failed to appear during scheduled hearings. The postponement of the trial on May 23, 1984 to a later date duet o the correction of the stenographic notes of Loreto's testimony may be justified, but the same cannot be said for the subsequent posponements requested by the petitioners. The scheduled trials before November 7, 1984, did not push through, because of the petitioners' fault. It may also be recalled that at the scheduled hearing on September 14, 1984 neither the petitioners nor their counsel appeared leading to the presentation of evidence ex parte. And also during the scheduled hearing on September 18, 1984, when the petitioners were allowed to cross-examine Loreto despite the fact that the case was already deemed submitted for decision, the petitioners again failed to appear. Under these circumstances, we rule that the petitioners had waived their right to cross-examine Loreto. Through their own fault, they lost their right to cross-examine Loreto. Her testimony stands. As regards the petition to set aside the trial court's decision, the pivotal issue hinges on the contents of the February 11, 1985 order. The petitioners argue that Presiding Judge Benedicto "arbitrarily and whimsically changed without notice to either party, the tenor of the order it dictated in open court, apart from injecting facts that did not and could not have transpired on February 11, 1985, acts apparently calculated to deprive petitioners, as in fact they were deprived petitioners, as in fact they were deprived of their right to present evidence in their behalf." (p. 38, Rollo). According to the petitioners, the trial court issued two conflicting versions of the February 11, 1985 order. The order dictated in open court on February 11, 1985 states: In view of the manifestation of the counsel for the plaintiff that he is formally re-offering in evidence all documentary exhibits and testimonial evidence presented and it appearing that the transcript taken during the ex-parte hearing is already available and availed of by counsel for the defendant, he is hereby given ten (10) days from today to file his objections after which this case will be deemed submitted for resolution. In view of the fact that he will appeal the order of this court denying his motion to strike out from the record, the testimony of the plaintiff, Loreto de la Paz, the presentation of the evidence of the defendants is hereby held in abeyance. (p. 29, Court of Appeals' rollo) while the signed order dated February 11, 1985 states, to wit: In view of the manifestation of the counsel for the plaintiff that he is formally re-offering in the evidence all documentary exhibits and testimonial evidence presented and after their admission he will rest his case and it appearing that the transcript taken during the ex-parte hearing has been long available and availed

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of by counsel for the defendants, he is hereby given ten (10) days from today to file his objections thereto after which action will be taken on the admission of said exhibits. The said period having lapsed without defendants' counsel filing his comments on the admission of the exhibits A to Z and the sub-marked exhibits are admitted in evidence for Plaintiffs, Defendants' counsel forthwith manifested that he will appeal to the Intermediate Court of Appeals (sic) the ruling of this Court denying his Motion to Strike off from the records the entire testimony of Plaintiff Loreto de la Paz who was partly cross-examined already but who died thus his cross examination could not be completed. Said counsel then refused to present evidence in behalf of defendants on the ground that he intended to appeal as already alluded above the Order of this court denying the Motion in question. The court has ruled in its Order of January 21, 1983 that inspite of the attitude of Counsel the trial shall proceed as scheduled. Thus, at the hearing today said Counsel failed to proceed with the trial to present his evidence. This case shall be deemed submitted for Resolution. (p. 31, Court of Appeals' rollo) It is to be noted that in the dictated version of the February 11, 1985 order, the petitioners were given ten (10) days from February 11, 1985 to file their objections after which the case will be submitted for resolution and that the presentation of evidence for the petitioners was held in abeyance. However, in the other version, the case was declared as already deemed submitted for resolution. It is this second version of the February 11, 1985 order which the trial court used as justification for its promulgation of the March 29, 1985 decision in Civil Case No. 164-A. The record clearly shows that this second version of the February 11. 1985 order was issued without the knowledge of the parties. In fact, on March 14, 1985, the respondents filed an urgent motion to consider the case submitted for decision with the following allegations: 1) that in the hearing of February 11, 1985, the petitioners were required to submit their comment or objection to respondents' offer of evidence and they were given ten (10) days from the said date within which to do so, and thereafter to present their evidence; and 2) that notwithstanding the lapse of more than thirty (30) days, the respondents have not submitted their comment or objection to petitioners' offer of evidence much less have they take any move to present their evidence. (pp. 32033, Court of Appeals' rollo). the respondents would not have filed this motion if the case was already deemed submitted for decision pursuant to the second version of the February 14, 1985 order. Furthermore, the respondents do not rebut these allegations. The trial court committed a grave abuse of discretion in issuing the order dated February 11, 1985, the contents of which conflict with another order of the same date dictated in open court during the hearing of the case on February 11, 1985. The issuance of this second version of the February 11, 1985 order prejudiced the petitioners' cause. They were deprived of their right to present evidence in their behalf. Consequently, the decision of the trial court in Civil Case No. 164-A must be declared null and void, Another issue raised by the petitioners centers on whether or not the trial court committed grave abuse of discretion in rendering judgment in Civil Case No. 164-A despite the pendency of the petition which sought to inhibit it from further proceeding with the case. The appellate court did not restrain the trial court until April 22, 1985 after the petitioners presented the certified copy of the February 11, 1985 order. (p. 35, Court of Appeals rollo). The trial court did not abuse its discretion or commit reversible error. It is within its sound discretion to either proceed with the case in the absence of the prayed-for restraining order to refrain from acting on the case until the higher court decides the matter elevated. to it. the circumstances of each case dictate what action shall be take. The final issue raised by the petitioners is with regard to the damages awarded the respondents by the trial court. In their complaint, the respondents asked for the following damages: 1) at least P150,000.00 as actual damages; 2) P200,000.00 as moral damages; and 3) P50,000.00 as attorney's fees plus exemplary damages which may be

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deemed just and equitable in the premises. The trial court awarded to the respondents the following: P500,000.00 as actual damages; P500,000.00 as moral damages; P500,000.00 as exemplary damages; P50,000.00 as attorney's fees and costs. The questioned decision, however, is silent as to how the court arrived at these damages. Nowhere in the decision did the trial court discuss the merit of the damages prayed for by the petitioners. There should be clear factual and legal bases for any award of considerable damages. (See Rubio v. Court of Appeals, 141 SCRA 488). WHEREFORE, the amended petition is partly DENIED in that the questioned decision and resolution of the Intermediate Appellate Court, now court of Appeals in AC-G. R. SP No. 05472 are AFFIRMED. The petition is GRANTED in part. The questioned decision of the then Court of First Instance of Rizal in Civil Case No. 164-A is SET ASIDE as null and void. The successor Regional Trial Court is directed to conduct further proceedings and to receive the evidence of the petitioners in Civil Case No. 164-A. SO ORDERED.

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THIRD DIVISION [G.R. No. 137806. December 14, 2000] PEOPLE OF THE PHILIPPINES, appellee, vs. JOHN KENNETH DE DESIDERIO,accused, JOHN KENNETH DE GUZMAN, appellant. DECISION PANGANIBAN, J.: The probative value of the testimonies of eyewitnesses is not diminished by the mere fact that they are the brothers of the victim. Indeed, relatives are interested in vindicating the crime, and it would be unnatural for them to accuse someone other than the real culprit.
The Case

GUZMAN

and

JASPER

John Kenneth de Guzman appeals the January 25, 1999 Decision[1] of the Regional Trial Court of Malolos, Bulacan (Branch 12) in Criminal Case No. 527-M-97, finding him guilty of murder and sentencing him to reclusion perpetua. In an Information dated April 4, 1997, Assistant Provincial Prosecutor Renato T. Santiago charged appellant and one Jasper Desiderio[2]with murder allegedly committed as follows: That on or about the 15th day of March 1997, in the Municipality of Baliuag, Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping each other, armed with a gun and with intent to kill one William Estrella Y Kliatchko, did then and there willfully, unlawfully and feloniously, with evident premeditation and treachery attack, assault and shoot the said William Estrella Y Kliatchko with the said gun, hitting the latter on the upper left shoulder which penetrated his body, thereby inflicting upon him serious physical injuries which directly caused death.[3] When arraigned on May 8, 1997, appellant, assisted by Counsel de Oficio Julio Contreras, pleaded not guilty.[4] Trial proceeded in due course. Thereafter, the court a quo rendered its Decision, the dispositive portion of which reads as follows: WHEREFORE, finding herein accused John Kenneth de Guzman y Baluyot guilty as principal of the crime of murder beyond reasonable doubt, he is hereby sentenced to suffer the penalty of reclusion perpetua, to indemnify the heirs of the victim in the amount of P75,000.00 as actual damages and to pay the costs of the proceedings. Hence, this appeal.[5]
The Facts Version of the Prosecution

In its Brief,[6] the Office of the Solicitor General relates the prosecutions version of the facts in this manner: On March 15, 1997, at around 11:00 oclock in the evening, while William Estrella y Kliatchko and his two brothers, Herminio, Jr. and [Leander], together with three others, were drinking beer and telling stories in front of Alicia Store, which is located at J. Buizon Street, Sto. Cristo, Baliuag, Bulacan, a scooter driven by accused Jasper Desiderio @ Jugi arrived and slowly passed by the group. Suddenly and without any provocation, appellant, the scooters other passenger who was armed with a pistol, fired six (6) shots at the group. William, who was at that time standing and whose back was facing the road, was hit at the back portion of his left shoulder. Immediately thereafter, the scooter sped away. Julius Silva, who was with Williams group minutes earlier, and who was then walking home, heard gun shots coming from the direction of the Alicia Store. This prompted him to go back to the store and, in the process, he met appellant on board a scooter which was driven by another person whom Julius came to know as accused Desiderio.

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Meanwhile, upon seeing William fall after having been shot by appellant, Leander lifted William and brought him to their house, which is located along the same street as the Alicia Store. On the other hand, Herminio, Jr., who had gone to the house ahead of Leander, informed their father that William was shot by appellant. This prompted the father to call up by telephone the Baliuag Police Station and report the shooting incident. Thereafter, PO1 Filemon Tomas was dispatched to the crime scene where he was able to recover a deformed slug. PO1 Tomas also went to the house of the Estrellas and even accompanied them in bringing William to the Carpa District Hospital at Baliuag, Bulacan. Unfortunately, as the x-ray machine of the aforesaid hospital was out of order, William was brought to the Provincial Hospital of Bulacan at Malolos which, for lack of doctors who could treat William, referred William to the Jose Reyes Memorial Hospital in Manila, [where] William expired. xxx xxx xxx

[O]n the morning of March 17, 1997, SPO1 Celso Cruz of the Baliuag Police Station conducted further investigation of the shooting incident. From his interview of Herminio Estrella, Jr., SPO1 Cruz was able to prepare a sketch showing the relative positions of, among others, Herminio, Jr., Leander and William vi[s] a vi[s] appellant at the time the latter shot William while appellant was on board the scooter driven by accused Desiderio. Later that morning, SPO1 Cruz took the sworn statement of Herminio, Jr. SPO1 Cruz took the sworn statement of Leander [o]n the afternoon of March 17, 1997. On March 22, 1997, SPO2 Renato Santos, together with two others of the Baliuag Police Station, were sent to Imus, Cavite where, at 6:30 oclock in the morning, appellant was arrested pursuant to a warrant of arrest which was issued in connection with the shooting of William Estrella.[7]
Version of the Defense

In his Brief,[8] appellant interposes denial and alibi as he narrates the facts as follows: x x x [W]hen the defense presented its evidence, there were five (5) witnesses who testified, including the accused-appellant, namely, Rizel Alarcon, Michelle de Guzman, Rolando Romero, Jesus Mallari and accusedappellant himself. Witness Rizel Alarcon substantially testified that he personally saw the accused-appellant on the 20th of March 1997 in their house in Las Pias City, although accused-appellant actually went to Las Pias City [o]n the afternoon of March 19, 1997, accompanied by his Aunt Loly from Baliuag, Bulacan, and their seeing [each other] was [o]n the 20th of March, 1997 since he did not sleep in their house on the 19th. They talked on the 20th about a motorcycle which can be used for [a] tricycle, in exchange [for] a two-way radio owned by the accused appellant. On the 21st of March, 1997, it was only Alarcon who went to Anabu, Imus, Cavite leaving accusedappellant in Las Pias City. Alarcon informed accused-appellant that the owner of the motorcycle, a certain Lando, [was] agreeable to exchange his motorcycle with the two-way radio and so they proceeded to Anabu, Imus, Cavite and it was in Anabu, Imus, Cavite where accused-appellant was apprehended by Baliuag, Bulacan policemen. Michelle de Guzman, the common-law wife of accused-appellant with two children now testified substantially that on the night of March 15, 1997, about 10:00 post meridian, the accused-appellant and child and herself, ha[d] just finished viewing TV program and by 11:00 oclock post meridian they were already asleep in their house. The accused-appellant did not leave Baliuag, Bulacan and stayed in the house caring for the child and looking after a pregnant pig which was then [about] to deliver piglets on March 16, 17 and 18, 1997, and on said three (3) days, no policeman arrived in their home to invite the accused-appellant for investigation. Witnesses Rolando Romero and Jesus Mallari both substantially testified that they both knew the accusedappellant. On the night of March 15, 1997, at or about 11:00 oclock post meridian, they saw a scooter with two persons on board, and after the shots were heard, they were sure that it was not the accused-appellant who was riding on the scooter, because according to them, the person at the back of the driver was with long hair and quite big than the physical feature of the accused-appellant.

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And lastly, the accused-appellant testified substantially, that on the night of March 15, 1997, at or about 9:00 oclock nighttime he was watching [a] TV program together with Michell(e), his common law wife and their child (by then they ha[d] only one child) and they finished viewing TV at or about 10:00 oclock post meridian and by about 11:00 oclock p.m. they were already asleep until the morning of the next day. On March 16, 17 and 18, 1997, he did not leave his home, instead he cared for his child and attended to a pregnant pig which was [about] to deliver piglets. [O]n the afternoon of March 19, 1997, he was told by his Aunt Loly that there was a motorcycle in Anabu, Imus, Cavite, the owner of which was willing to x x x exchange [it] for his two-way radio. On the 22nd day of March, 1997, he went with Alarcon to Anabu, Imus Cavite for a negotiation between said motorcycle owned by a certain Lando and the two-way radio owned by accused-appellant. It did not push through because he was apprehended by Baliuag Policemen in Anabu, Imus, Cavite.[9]
Trial Courts Ruling

In convicting the accused, the trial court gave credence to the testimonies of the prosecution eyewitnesses and ratiocinated in this wise: As earlier observed by the Court in denying the motion of the accused for bail it is just hard to believe that these eyewitness[es], who are brothers of the slain victim, would point to the accused as the persons who shot their brother, if indeed they were not the real culprits, and [thereby] let x x x the true killers go scot-free. Maybe their word could be doubted if they took some considerable time to identify accused de Guzman. But the facts show that they immediately recognized him when he fired at them even if that resulted in their scampering for cover, most of them inside the store. That is why when Herminio, Jr. rushed towards home to report that William was shot by the accused Boyet de Guzman, their father immediately called the police and relayed that information which was entered in the police blotter (Exh. H). And these eyewitnesses could not just have been mistaken in recognizing accused de Guzman. They were familiar with him x x x for years. xxx xxx xxx

For whatever reason he committed that dastardly crime, only he knows for sure. But motive is not also that important as long as the identity of the killer is positively established, like in this case of accused de Guzman. And he committed with his co-conspirator, who is still at large, the killing with complete surprise and treachery qualifying the homicide to murder as correctly charged in the information. Fortunately for him the evidence fails to prove the other alleged circumstance of evident premeditation. Neither is any mitigating circumstance attendant in the commission of the offense.[10]
Assignment of Errors

Appellant alleges that the trial court committed the following errors: I The lower court erred in holding that the prosecution evidence virtually overcame the presumption of innocence of the accused pursuant to Sec. 14 (2), Art. III of the Constitution. II The lower court erred in rejecting the defense of alibi of the accused in spite [of the] credible corroboration of disinterested defense witnesses.[11] In fine, the Court will resolve two issues: (1) the sufficiency of the prosecution evidence and (2) the defense of alibi.
The Courts Ruling

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The appeal is bereft of merit.
First Issue: Sufficiency of Prosecution Evidence

As a rule, findings of the trial court on the credibility of witnesses are entitled to the highest degree of respect and will not be disturbed on appeal, absent any clear showing that it has overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which could have altered the conviction of the accused.[12] In the present case, it accorded credence to the testimonies of the prosecution witnesses and rejected those of the defense. Appellant has proferred no cogent reason to dissuade us from upholding its ruling. Both eyewitnesses -- namely, Herminio Jr.[13] and Leander[14]-- testified that the culprit, while riding at the back of a scooter driven by the other accused,[15] fired upon them. Their categorical identification of appellant as the shooter is bolstered by the fact that right after the shooting, they informed their father of the incident. They told him that their brother William had been killed after appellant fired at their group.[16] Moreover, they could not have been mistaken about the identity of appellant, considering that the latter was an acquaintance and a longtime neighbor in Baliuag, Bulacan. Favorable conditions of visibility at the time further strengthened their account. The solicitor general correctly pointed out: That Herminio Jr. and Leander did not err in positively identifying appellant is clear from the following circumstances: (a) the scooter ridden by appellant was slowly passing by when appellant shot at Williams group in front of the Alicia Store; (b) the approximate distance between the appellant and William at the time the latter was shot by the former was just 7 steps of an adult person; (c) there was sufficient illumination coming from the lamppost nearby; and (d) prior to the shooting incident, they have known appellant for a number of years already.[17] The identity of the perpetrator was more than sufficiently established by the positive, credible and consistent testimonies of the witnesses. They had a fair opportunity to observe the commission of the crime and to identify the culprit with a reasonable degree of certainty. Indubitably, the prosecution has established beyond reasonable doubt that appellant is the author of the crime. Although the witnesses are the brothers of the victim, this fact alone does not impinge on their credibility, especially because they were present at the crime scene.[18] On the contrary, it would be unnatural for a relative, who is expected to be interested in vindicating the crime, to violate his conscience callously by accusing someone other than the real culprit.[19] In any case, the defense did not present any evidence to show why the witnesses would falsely implicate appellant. We are not persuaded by the reliance of the defense on the declaration of Rolando Romero and Jesus Mallari who, on the witness stand, denied that it was appellant who was riding at the back of the scooter. A perusal of their testimonies shows that they were not only inaccurate but unreliable as well. This is evident from the following testimony of Romero: COURT: Why dont you ask him if he recognize[s] those two (2) persons he saw on the hopper? ATTY. CONTRERAS: Q: A: Do you recognize the two (2) persons who were riding the hopper when it passed by you on that particular night? I did not recognize the[m;] I just nabanaagan.[20]

For his part, Mallari testified in this manner: COURT: What happened? What was the unusual thing that happened? A: When we were under [a] lamp post I saw the hopper with two (2) riders. One was a tall fellow wearing a surefit with long hair and the other one who was not Bojit,[21] your honor. xxx xxx xxx

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COURT: For clarification, Mr. Witness Q: A: Q: A: Q: According to you, when you saw these riders on the hopper[,] one was the tall person and the other one was not Bojit[;] if it was not Bojit, who was the other one? I do not know him, your Honor. Can you describe him? The one I was referring to as not Bojit was a little shorter. I did not recognize his appearance, your honor. How could you say that it was not Bojit if you did not see his appearance or [that of] anybody else?[22]
Second Issue: Appellants Alibi

Appellant maintains that he could not have been the perpetrator of the alleged crime, because he was at home with his wife and child in Baliuag, Bulacan, when the incident occurred. The alibi of appellant cannot be sustained. To prove this defense, he must establish that it was physically impossible for him to be at the scene of the crime or its immediate vicinity at the time of its commission. [23] He failed to do this. His home was located in the same town where the shooting incident occurred. Moreover, his wife testified that she was already asleep at the time and the date of the shooting. Thus, she could not have known for sure whether he was still beside her at the time. Furthermore, being based mainly on the testimonies of appellant himself and his immediate family, this defense becomes even more implausible.[24] In any event, alibi, which is the weakest of all defenses, cannot overcome the positive identification of appellant by credible eyewitnesses.[25]Courts have always looked upon this defense with suspicion and received it with caution, not only because it is inherently weak and unreliable, but also because it is easy to fabricate.[26] Positive identification, where categorical and credible, prevails over alibi which, if not substantiated by clear and convincing evidence as in this case, deserves scant consideration.[27]
Crime and Punishment

Convicting appellant of murder, the trial court found that the killing was qualified by treachery. The essence of this qualifying circumstance is the swift and unexpected attack on an unarmed victim.[28] In the present case, appellant suddenly shot William at the back without any provocation at all. The assault on the hapless victim was made while appellant was on board a scooter, which afforded convenience in the execution of the crime and the least opportunity for a probable retaliation from the unarmed and unwary victim. Indubitably, treachery attended the killing. Hence, the trial court was correct in convicting appellant of murder and, in the absence of any aggravating or mitigating circumstance, sentencing him to reclusion perpetua.
Civil Indemnity

The trial court erred, however, in ordering appellant to pay P75,000 as actual damages. We waded into the records, but found no evidentiary basis for such award. Nonetheless, pursuant to current jurisprudence,[29] appellant should pay the heirs of the victim P50,000 as indemnity ex delicto. This amount is awarded without need of proof other than the commission of the crime. WHEREFORE, the appeal is DENIED and the assailed Decision AFFIRMED, with the modification that the award of actual damages isDELETED and appellant is ordered to pay the heirs of the victim P50,000 as indemnity ex delicto. Costs against appellant. SO ORDERED.

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G.R. No. 122740 March 30, 1998 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WINSTON DE GUZMAN, accused-appellant. REGALADO, J.: Accused appellant Winston de Guzman was charged before the Regional Trial Court of Mati, Branch 5, Davao Oriental 1 with the crime of rape in an information docketed as Criminal Case No. 2584, and which alleged: That on or about June 9, 1994, in the Municipality of Governor Generoso, Province of Davao Oriental, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with lewd designs, by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of one JOVELYN A. GERAM, a (sic) against her will. 2 Appellant pleaded not guilty when arraigned on the aforequoted indictment on September 5, 1994, 3 and the case then went to trial. The evidence for the prosecution reveals that 14-year old complainant, Jovelyn A. Geram, 4 was alone in their residence at Barangay Monserrat, Governor Generoso, Davao Oriental when the crime was committed in the afternoon of June 9, 1994 by appellant who had managed to gain entry into the house. Complainant was sleeping at around two o'clock that afternoon when she was awakened by the weight of something on top of her. Upon opening her eyes, she saw herein appellant naked and sitting on her thighs. Complainant instinctively tried to shout for help but appellant covered her mouth and nose with his hand and warned her not to resist or she would be killed. A struggle between the two ensued thereafter. The strength of appellant and the strain of complainant's efforts at resistance took its toll on the latter, causing her to feel weak and faint. On recovering her senses, complainant discovered that she was already undressed and she saw blood on her vagina. She also noticed some white fluid on her abdomen and thighs. Complainant felt pain on her genitals and other parts of her body. Appellant was no longer around, and the hapless complainant was left crying over the tragedy which had befallen her. In the evening of the same day, a neighbor, Florami Bayno, arrived in the house of the Gerams to watch television. Complainant went with Florami when the latter went home. They proceeded to the house of Mauricia and Hugo Bayno, close friends of the Gerams and Florami's parent's-in-law. In front of the couple, complainant recounted her ordeal at the hands of appellant. In the morning of June 10, 1994, complainant went to the house of another neighbor, Genesis Delgado, and confided her misfortune to the latter. Later, she went to the house of the Baynos and waited for her parents who were in Barangay Tambo attending to their fishing enterprises. Complainant's mother, Evelyn Geram, 5 arrived shortly thereafter. Mother and daughter could only cry as the latter related the incident to the former. Complainant and her mother subsequently went to the barangay captain of Monserrat who advised them to report then latter to the police authorities of Sigaboy, Governor Generoso. After complainant had narrated the incident to the police, she and her mother proceeded to the municipal hospital for the physical examination of the former. Dr. Divina Lopez, 6 a resident physician of the Municipal District Hospital of Governor Generoso, issued a medical certificate detailing the result of her examination of complainant, as follows: FINDINGS: 1) Positive (+) BLOOD CLOTS BOTH ON LABIA MINORA

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2) POSITIVE (+) RUPTURED HYMEN 3) REDNESS AROUND THE VULVAR AREA 7 Prosecution witness Genesis Delgado 8 declared that he saw appellant going inside the house of complainant on June 9, 1994 at around two o'clock in the afternoon. Apparently, appellant entered through the kitchen door at the rear portion of the house. Two hours later, appellant went out of the house through the same kitchen door. Delgado noticed all of these while he was watching television inside their house located just beside the Gerams' residence. Later, at the rebuttal stage, Enecita 9 dela Cruz Torion, 10 a teacher in Monserrat Elementary School, also testified that she saw appellant, together with two companions, sitting at the front porch of the house of the Gerams at about one o'clock in the afternoon of June 9, 1994. Enecita was then on her way from the school which was located in front of the house of the Gerams. The defense of appellant is denial and alibi. Aside from the intrinsic weakness of this shopworn excuse, we are not persuaded to grant any credence thereto since the facts relied on to make out appellant's story obviously appear too pat as to have clearly been contrived. The only persons presented to corroborate appellant's story are his own parents, despite the availability of other persons whose lack of relationship to him would not have engendered suspicion of connivance. Appellant, 11 who is also a resident of Monserrat, asserted before the trial court that he was in Davao City at the time of the commission of the felony. He allegedly went there on June 6, 1994 with his mother to attend to his sister-in-law who was confined in the Davao Medical Center due to an incomplete abortion. 12 After his sister-inlaw was discharged from the hospital in the afternoon of June 8, they went to the house of Christy, his sister who was residing at Sasa, Davao City. He stayed in the house and cleaned it the whole day of June 9. At 4:30 in the morning of June 10, he and his mother left Davao City for Monserrat, arriving at their house between 8:30 and 9:00 A.M. Aside from merely repeating the position of appellant, his father, Raul De Guzman, 13 tried to convince the trial court that he saw complainant in the afternoon of June 9, 1994. According to this witness, Jovelyn went to their store on that date to borrow a VHS cassette tape featuring "Robo Vampire." Appellant's mother, Violeta De Guzman, 14 also sought to support his story by claiming that it was her decision to bring appellant along to Davao City so that he could help minister to her daughter-in-law. After considering the evidence of both the prosecution and the defense, the lower court gave credence to the testimony of Jovelyn and disregarded the defense of denial cum alibi presented by appellant. The trial court considered the immediate revelation made by Jovelyn of the crime committed against her, and her steadfast efforts to bring her violator to justice, as indicative of the veracity of her charge. It rejected the defense put up by appellant in light of the positive identification made by Jovelyn and the categorical declarations of the other prosecution witnesses placing him within the vicinity of the locus criminis at the time of the commission of the crime. Accordingly, appellant was sentenced to suffer the penalty of reclusion perpetua, to indemnify Jovelyn in the amount of P40,000.00, and to pay the costs. 15 Appellant now pleads for the reversal of the judgment of the trial court, contending that said court erred in giving credence to the testimony of Jovelyn and in finding him guilty on the basis thereof. 16 Appellant adverts to the fact that complainant stated in her complaint 17 and in her testimony 18 given during the preliminary investigation that he committed the crime of rape through the application of odorous chemicals over her nose and mouth which caused her to sleep. This fact was not repeated by complainant in the trial court but she merely claimed the crime was consummated by appellant through force and intimidation. Such inconsistency, according to appellant, destroys Jovelyn's credibility, thus warranting a reversal of the lower court's judgment of conviction.

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The records disclose that at the trial, counsel for appellant tried to utilize the testimony of complainant given in the preliminary investigation before Judge Rodolfo A. Castro to impeach her through statements therein supposedly different from what she gave in court. 19 Alluding to her answer to Judge Castro's questions numbered 28 and 29, 20appellant's counsel asked complainant if she first reported the rape to one Dioneson Bayno. Complainant duly corrected that statement and clarified that it was Mauricia and Hugo Bayno whom she first told about the incident. 21 However, complainant was never confronted during the proceedings in the trial court with her answers allegedly given in the same testimony at the preliminary investigation regarding appellant's resort to sleep-including chemicals. In fact, no sub-markings for such particular answers as exhibits were made in the records of her testimony in the preliminary investigation, much less offered by the counsel of appellant for that purpose during the trial of the case. It is universally accepted that a witness cannot he impeached by evidence of contradictory or prior inconsistent statements until the proper foundation or predicate has been duly laid by the party against whom said witness was called. 22 The American rule on laying the predicate is embodied in Rule 132 of our own Rules of Court, to wit: Sec. 13. How witness impeached by evidence of inconsistent statements. Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them. Although the whole record of the testimony of complainant at the preliminary examination was offered in evidence by the defense and admitted by the trial court, 23 complainant cannot now be discredited through any of her extrajudicial statements which were not brought to her attention during the trial. Thus, it has been held that granting arguendo the alleged contradictions, previous statements cannot serve as bases for impeaching the credibility of a witness unless his attention was first directed to the discrepancies and he was then given an opportunity to explain them. 24 In People vs. Resabal, 25 this Court explicitly ruled that the mere presentation of the prior declarations of a witness without the same having been read to the witness while he was testifying in court is insufficient for the desired impeachment of his testimony. As explained therein, the apparent contradiction between the declarations of the witness before the former justice of the peace court and those before the then court of first instance was insufficient to discredit him since he was not given ample opportunity, by reading to him his declarations before the lower court, to explain the supposed discrepancy. The rule which requires a sufficient foundation to be first laid before introducing evidence of inconsistent statements of a witness is founded upon common sense and is essential to protect the character of a witness. His memory is refreshed by the necessary inquiries, which enables him to explain the statements referred to, and to show that they were made under a mistake, or that there was no discrepancy between them and his testimony. 26 It would be unjust to complainant at this stage to be declared an incredible witness as a result of the unauthorized procedure adopted by appellant. It is evidentiarily proscribed to discredit a witness on the bases of purportedly prior inconsistent statements which were not called to the attention of that witness during the trial, although the same are supposedly contained in a document which was merely offered and admitted in its entirety without the requisite specifications. Through such a somewhat underhanded recourse, a party can expediently offer in evidence at the trial the whole document containing allegedly variant statements and then point out much later on appeal the supposed contradictory statements which were not specified, intentionally or otherwise, in the same trial. That sub silentiogambit would necessarily deprive a witness of the chance to explain the seeming divergencies, which is the paramount consideration of the rule mandating the laying of the proper predicate.

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Complainant is undoubtedly the person best suited and mandated by the rule to explain the supposed differences in her statements. Without such explanation before us, whether plausible or not, we are left with no basis to evaluate and assess her credibility on the rationale that it is only when no reasonable explanation is given by a witness in reconciling his conflicting declarations that he should be deemed impeached. 27 As things stand before us and the court a quo, therefore, complainant's credibility remains unimpeached. On the foregoing considerations, we confirm the validity of the doctrine articulated by the Court of Appeals inVillaruel vs. Bascon 28 that, unless the proper predicate is laid during the trial by calling the attention of a witness to his alleged inconsistent statements given outside of his testimony in court and asking him to explain the contradiction, the supposed inconsistencies cannot be pointed out on appeal for the purpose of destroying the credibility of the witness. This pronouncement was actually based upon and in line with the holdings of this Court in Escosura 29 and People vs. Lim Quingsy. 30 We now take up the other document relied upon by appellant, that is, the complaint executed by complainant. A reading of the transcript of stenographic notes shows that said complaint was never introduced in evidence for the consideration of the trial court nor shown to complainant during the trial so that she could explain the alleged discrepancies in accordance with the foregoing rule. The complaint is not even included in the folder of exhibits as part of the documents admitted in evidence by the trial court. It is only attached to the original record of this case together with the other records of the preliminary investigation forwarded to the trial court. Under the revision in the 1985 Rules of Criminal Procedure, those records of the preliminary investigation do not form part of the record of the case in the Regional Trial Court. 31 Again, it is undeniable that the proper basis was not laid for the impeachment of complainant through the statements contained in her complaint. Coupled with the basic principle that courts shall consider no evidence which has not been formally offered or whose purpose has not been specified, 32 the complaint cannot also be taken into account for impeaching complainant. If appellant was really prepared to attack complainant's credibility based on the statements in her complaint, he should necessarily have asked complainant about them during the trial, offered the complaint as his evidence, and specified the purpose for its submission. Appellant utterly failed in all of these mandatory evidential requirements. Hence, no impeaching evidence having been properly brought before it for its consideration during trial, the lower court was perfectly justified in disregarding the supposed inconsistent statements of complainant in her complaint and her testimony during the preliminary investigation. Her testimony at the trial, therefore, stands unassailed and entitled to full credit, together with the corroboration afforded thereto by the testimonies of the other prosecution witnesses, in stark contrast to the effete and puerile defense offered by appellant. WHEREFORE, the judgment of the court a quo is hereby AFFIRMED, with the MODIFICATION that the indemnity to be paid by accused-appellant Winston de Guzman is increased to P50,000.00 in accordance with the present case law thereon. SO ORDERED.

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CONCEPCION CHUA GAW, - versus SUY BEN CHUA and FELISA CHUA, Respondents. x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION NACHURA, J.: This is a Petition for Review on Certiorari from the Decision[1] of the Court of Appeals (CA) in CA-G.R. CV No. 66790 and Resolution[2] denying the motion for reconsideration. The assailed decision affirmed the ruling of the Regional Trial Court (RTC) in a Complaint for Sum of Money in favor of the plaintiff. The antecedents are as follows: Spouses Chua Chin and Chan Chi were the founders of three business enterprises [3] namely: Hagonoy Lumber, Capitol Sawmill Corporation, and Columbia Wood Industries. The couple had seven children, namely, Santos Chua; Concepcion Chua; Suy Ben Chua; Chua Suy Phen; Chua Sioc Huan; Chua Suy Lu; and Julita Chua. On June 19, 1986, Chua Chin died, leaving his wife Chan Chi and his seven children as his only surviving heirs. At the time of Chua Chins death, the net worth of Hagonoy Lumber wasP415,487.20.[4] On December 8, 1986, his surviving heirs executed a Deed of Extra-Judicial Partition and Renunciation of Hereditary Rights in Favor of a Co-Heir[5] (Deed of Partition, for brevity), wherein the heirs settled their interest in Hagonoy Lumber as follows: one-half (1/2) thereof will pertain to the surviving spouse, Chan Chi, as her share in the conjugal partnership; and the other half, equivalent toP207,743.60, will be divided among Chan Chi and the seven children in equal pro indiviso shares equivalent to P25,967.00 each.[6]In said document, Chan Chi and the six children likewise agreed to voluntarily renounce and waive their shares over Hagonoy Lumber in favor of their co-heir, Chua Sioc Huan. In May 1988, petitioner Concepcion Chua Gaw and her husband, Antonio Gaw, asked respondent, Suy Ben Chua, to lend them P200,000.00 which they will use for the construction of their house in Marilao, Bulacan. The parties agreed that the loan will be payable within six (6) months without interest.[7] On June 7, 1988, respondent issued in their favor China Banking Corporation Check No. 240810 [8] for P200,000.00 which he delivered to the couples house in Marilao, Bulacan. Antonio later encashed the check. On August 1, 1990, their sister, Chua Sioc Huan, executed a Deed of Sale over all her rights and interests in Hagonoy Lumber for a consideration of P255,000.00 in favor of respondent.[9] Meantime, the spouses Gaw failed to pay the amount they borrowed from respondent within the designated period. Respondent sent the couple a demand letter,[10] dated March 25, 1991, requesting them to settle their obligation with the warning that he will be constrained to take the appropriate legal action if they fail to do so. Failing to heed his demand, respondent filed a Complaint for Sum of Money against the spouses Gaw with the RTC. The complaint alleged that on June 7, 1988, he extended a loan to the spouses Gaw for P200,000.00, payable within six months without interest, but despite several demands, the couple failed to pay their obligation.[11] In their Answer (with Compulsory Counterclaim), the spouses Gaw contended that the P200,000.00 was not a loan but petitioners share in the profits of Hagonoy Lumber, one of her familys businesses. According to the spouses, when they transferred residence to Marilao, Bulacan, petitioner asked respondent for an accounting, and payment of her share in the profits, of Capital Sawmills Corporation, Columbia Wood Industries Corporation, and Hagonoy Lumber. They claimed that respondent persuaded petitioner to temporarily forego her G.R. No. 160855 April 16, 2008

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demand as it would offend their mother who still wanted to remain in control of the family businesses. To insure that she will defer her demand, respondent allegedly gave her P200,000.00 as her share in the profits of Hagonoy Lumber.[12] In his Reply, respondent averred that the spouses Gaw did not demand from him an accounting of Capitol Sawmills Corporation, Columbia Wood Industries, and Hagonoy Lumber. He asserted that the spouses Gaw, in fact, have no right whatsoever in these businesses that would entitle them to an accounting thereof. Respondent insisted that the P200,000.00 was given to and accepted by them as a loan and not as their share in Hagonoy Lumber.[13] With leave of court, the spouses Gaw filed an Answer (with Amended Compulsory Counterclaim) wherein they insisted that petitioner, as one of the compulsory heirs, is entitled to one-sixth (1/6) of Hagonoy Lumber, which the respondent has arrogated to himself. They claimed that, despite repeated demands, respondent has failed and refused to account for the operations of Hagonoy Lumber and to deliver her share therein. They then prayed that respondent make an accounting of the operations of Hagonoy Lumber and to deliver to petitioner her one-sixth (1/6) share thereof, which was estimated to be worth not less than P500,000.00.[14] In his Answer to Amended Counterclaim, respondent explained that his sister, Chua Sioc Huan, became the sole owner of Hagonoy Lumber when the heirs executed the Deed of Partition on December 8, 1986. In turn, he became the sole owner of Hagonoy Lumber when he bought it from Chua Sioc Huan, as evidenced by the Deed of Sale dated August 1, 1990.[15] Defendants, in their reply,[16] countered that the documents on which plaintiff anchors his claim of ownership over Hagonoy Lumber were not true and valid agreements and do not express the real intention of the parties. They claimed that these documents are mere paper arrangements which were prepared only upon the advice of a counsel until all the heirs could reach and sign a final and binding agreement, which, up to such time, has not been executed by the heirs.[17] During trial, the spouses Gaw called the respondent to testify as adverse witness under Section 10, Rule 132. On direct examination, respondent testified that Hagonoy Lumber was the conjugal property of his parents Chua Chin and Chan Chi, who were both Chinese citizens. He narrated that, initially, his father leased the lots where Hagonoy Lumber is presently located from his godfather, Lu Pieng, and that his father constructed the two-storey concrete building standing thereon. According to respondent, when he was in high school, it was his father who managed the business but he and his other siblings were helping him. Later, his sister, Chua Sioc Huan, managed Hogonoy Lumber together with their other brothers and sisters. He stated that he also managed Hagonoy Lumber when he was in high school, but he stopped when he got married and found another job. He said that he now owns the lots where Hagonoy Lumber is operating.[18] On cross-examination, respondent explained that he ceased to be a stockholder of Capitol Sawmill when he sold his shares of stock to the other stockholders on January 1, 1991. He further testified that Chua Sioc Huan acquired Hagonoy Lumber by virtue of a Deed of Partition, executed by the heirs of Chua Chin. He, in turn, became the owner of Hagonoy Lumber when he bought the same from Chua Sioc Huan through a Deed of Sale dated August 1, 1990. [19] On re-direct examination, respondent stated that he sold his shares of stock in Capitol Sawmill for P254,000.00, which payment he received in cash. He also paid the purchase price of P255,000.00 for Hagonoy Lumber in cash, which payment was not covered by a separate receipt as he merely delivered the same to Chua Sioc Huan at her house in Paso de Blas, Valenzuela. Although he maintains several accounts at Planters Bank, Paluwagan ng Bayan, and China Bank, the amount he paid to Chua Sioc Huan was not taken from any of them. He kept the amount in the house because he was engaged in rediscounting checks of people from the public market. [20] On December 10, 1998, Antonio Gaw died due to cardio vascular and respiratory failure.[21] On February 11, 2000, the RTC rendered a Decision in favor of the respondent, thus: WHEREFORE, in the light of all the foregoing, the Court hereby renders judgement ordering defendant Concepcion Chua Gaw to pay the [respondent] the following:

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1. P200,000.00 representing the principal obligation with legal interest from judicial demand or the institution of the complaint on November 19, 1991; 2. P50,000.00 as attorneys fees; and 3. Costs of suit. The defendants counterclaim is hereby dismissed for being devoid of merit. SO ORDERED.[22]

The RTC held that respondent is entitled to the payment of the amount of P200,000.00 with interest. It noted that respondent personally issued Check No. 240810 to petitioner and her husband upon their request to lend them the aforesaid amount. The trial court concluded that the P200,000.00 was a loan advanced by the respondent from his own funds and not remunerations for services rendered to Hagonoy Lumber nor petitioners advance share in the profits of their parents businesses. The trial court further held that the validity and due execution of the Deed of Partition and the Deed of Sale, evidencing transfer of ownership of Hagonoy Lumber from Chua Sioc Huan to respondent, was never impugned. Although respondent failed to produce the originals of the documents, petitioner judicially admitted the due execution of the Deed of Partition, and even acknowledged her signature thereon, thus constitutes an exception to the best evidence rule. As for the Deed of Sale, since the contents thereof have not been put in issue, the non-presentation of the original document is not fatal so as to affect its authenticity as well as the truth of its contents. Also, the parties to the documents themselves do not contest their validity. Ultimately, petitioner failed to establish her right to demand an accounting of the operations of Hagonoy Lumber nor the delivery of her 1/6 share therein. As for petitioners claim that an accounting be done on Capitol Sawmill Corporation and Columbia Wood Industries, the trial court held that respondent is under no obligation to make such an accounting since he is not charged with operating these enterprises.[23] Aggrieved, petitioner appealed to the CA, alleging that the trial court erred (1) when it considered the amount of P200,000.00 as a loan obligation and not Concepcions share in the profits of Hagonoy Lumber; (2) when it considered as evidence for the defendant, plaintiffs testimony when he was called to testify as an adverse party under Section 10 (e), Rule 132 of the Rules of Court; and (3) when it considered admissible mere copies of the Deed of Partition and Deed of Sale to prove that respondent is now the owner of Hagonoy Lumber.[24] On May 23, 2003, the CA affirmed the Decision of the RTC. [25] The appellate court found baseless the petitioners argument that the RTC should not have included respondents testimony as part of petitioners evidence. The CA noted that the petitioner went on a fishing expedition, the taking of respondents testimony having taken up a total of eleven hearings, and upon failing to obtain favorable information from the respondent, she now disclaims the same. Moreover, the CA held that the petitioner failed to show that the inclusion of respondents testimony in the statement of facts in the assailed decision unduly prejudiced her defense and counterclaims. In fact, the CA noted that the facts testified to by respondent were deducible from the totality of the evidence presented. The CA likewise found untenable petitioners claim that Exhibits H (Deed of Sale) and Exhibit I (Deed of Partition) were merely temporary paper arrangements. The CA agreed with the RTC that the testimony of petitioner regarding the matter was uncorroborated she should have presented the other heirs to attest to the truth of her allegation. Instead, petitioner admitted the due execution of the said documents. Since petitioner did not dispute the due execution and existence of Exhibits H and I, there was no need to produce the originals of the documents in accordance with the best evidence rule.[26] On December 2, 2003, the CA denied the petitioners motion for reconsideration for lack of merit.[27] Petitioner is before this Court in this petition for review on certiorari, raising the following errors:

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I. THAT ON THE PRELIMINARY IMPORTANT RELATED ISSUE, CLEAR AND PALPABLE LEGAL ERROR HAS BEEN COMMITTED IN THE APPLICATION AND LEGAL SIGNIFICANCE OF THE RULE ON EXAMINATION OF ADVERSE PARTY OR HOSTILE WITNESS UNDER SECTION 10 (d) AND (e) OF RULE 132, CAUSING SERIOUS DOUBT ON THE LOWER COURTS APPEALED DECISIONS OBJECTIVITY, ANNEX C. THAT ON THE IMPORTANT LEGAL ISSUE RELATIVE TO THE AFORESAID TWO OPPOSING CLAIMS OF RESPONDENT AND PETITIONER, CLEAR AND PALPABLE LEGAL ERROR HAS BEEN COMMITTED UNDER THE LOWER COURTS DECISION ANNEX C AND THE QUESTIONED DECISION OF MAY 23, 2003 (ANNEX A) AND THE RESOLUTION OF DECEMBER 2, 2003, (ANNEX B) IN DEVIATING FROM AND DISREGARDING ESTABLISHED SUPREME COURT DECISIONS ENJOINING COURTS NOT TO OVERLOOK OR MISINTERPRET IMPORTANT FACTS AND CIRCUMSTANCES, SUPPORTED BY CLEAR AND CONVINCING EVIDENCE ON RECORD, AND WHICH ARE OF GREAT WEIGHT AND VALUE, WHICH WOULD CHANGE THE RESULT OF THE CASE AND ARRIVE AT A JUST, FAIR AND OBJECTIVE DECISION. (Citations omitted) THAT FINALLY, AS TO THE OTHER LEGAL IMPORTANT ISSUE RELATIVE TO CLAIM OR OWNERSHIP OF THE HAGONOY LUMBER FAMILY BUSINESS, CLEAR AND PALPABLE LEGAL ERROR HAS BEEN COMMITTED ON THE REQUIREMENTS AND CORRECT APPLICATION OF THE BEST EVIDENCE RULE UNDER SECTION 3, RULE 130 OF THE REVISED RULES OF COURT.[28]

II.

III.

The petition is without merit. Petitioner contends that her case was unduly prejudiced by the RTCs treatment of the respondents testimony as adverse witness during cross-examination by his own counsel as part of her evidence. Petitioner argues that the adverse witness testimony elicited during cross-examination should not be considered as evidence of the calling party. She contends that the examination of respondent as adverse witness did not make him her witness and she is not bound by his testimony, particularly during cross-examination by his own counsel.[29] In particular, the petitioner avers that the following testimony of the respondent as adverse witness should not be considered as her evidence: (11.a) That RESPONDENT-Appellee became owner of the HAGONOY LUMBER business when he bought the same from Chua Sioc Huan through a Deed of Sale dated August 1, 1990 (EXH.H); (11.b) That the HAGONOY LUMBER, on the other hand, was acquired by the sister C hua Sioc Huan, by virtue of Extrajudicial Partition and Renunciation of Hereditary Rights in favor of a Co-Heir (EXH. I); (11.c) That the 3 lots on which the HAGONOY LUMBER business is located were acquired by Lu Pieng from the Santos family under the Deed of Absolute Sale (EXH. J); that Lu Pieng sold the Lots to Chua Suy Lu in 1976 (EXHS. K, L, & M.); that Chua Siok Huan eventually became owner of the 3 Lots; and in 1989 Chua Sioc Huan sold them to RESPONDENTAppellee (EXHS. Q and P); that after he acquired the 3 Lots, he has not sold them to anyone and he is the owner of the lots.[30] We do not agree that petitioners case was prejudiced by the RTCs treatment of the respondents testimony during cross-examination as her evidence. If there was an error committed by the RTC in ascribing to the petitioner the respondents testimony as adverse witness during cross-examination by his own counsel, it constitute a harmless error which would not, in any way, change the result of the case.

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In the first place, the delineation of a piece of evidence as part of the evidence of one party or the other is only significant in determining whether the party on whose shoulders lies the burden of proof was able to meet the quantum of evidence needed to discharge the burden. In civil cases, that burden devolves upon the plaintiff who must establish her case by preponderance of evidence. The rule is that the plaintiff must rely on the strength of his own evidence and not upon the weakness of the defendants evidence. Thus, it barely matters who with a piece of evidence is credited. In the end, the court will have to consider the entirety of the evidence presented by both parties. Preponderance of evidence is then determined by considering all the facts and circumstances of the case, culled from the evidence, regardless of who actually presented it.[31] That the witness is the adverse party does not necessarily mean that the calling party will not be bound by the formers testimony. The fact remains that it was at his ins tance that his adversary was put on the witness stand. Unlike an ordinary witness, the calling party may impeach an adverse witness in all respects as if he had been called by the adverse party,[32] except by evidence of his bad character.[33] Under a rule permitting the impeachment of an adverse witness, although the calling party does not vouch for the witness veracity, he is nonetheless bound by his testimony if it is not contradicted or remains unrebutted.[34] A party who calls his adversary as a witness is, therefore, not bound by the latters testimony only in the sense that he may contradict him by introducing other evidence to prove a state of facts contrary to what the witness testifies on.[35] A rule that provides that the party calling an adverse witness shall not be bound by his testimony does not mean that such testimony may not be given its proper weight, but merely that the calling party shall not be precluded from rebutting his testimony or from impeaching him.[36] This, the petitioner failed to do. In the present case, the petitioner, by her own testimony, failed to discredit the respondents testimony on how Hagonoy Lumber became his sole property. The petitioner admitted having signed the Deed of Partition but she insisted that the transfer of the property to Chua Siok Huan was only temporary. On cross-examination, she confessed that no other document was executed to indicate that the transfer of the business to Chua Siok Huan was a temporary arrangement. She declared that, after their mother died in 1993, she did not initiate any action concerning Hagonoy Lumber, and it was only in her counterclaim in the instant that, for the first time, she raised a claim over the business. Due process requires that in reaching a decision, a tribunal must consider the entire evidence presented.[37] All the parties to the case, therefore, are considered bound by the favorable or unfavorable effects resulting from the evidence.[38] As already mentioned, in arriving at a decision, the entirety of the evidence presented will be considered, regardless of the party who offered them in evidence. In this light, the more vital consideration is not whether a piece of evidence was properly attributed to one party, but whether it was accorded the apposite probative weight by the court. The testimony of an adverse witness is evidence in the case and should be given its proper weight, and such evidence becomes weightier if the other party fails to impeach the witness or contradict his testimony. Significantly, the RTCs finding that the P200,000.00 was given to the petitioner and her husband as a loan is supported by the evidence on record. Hence, we do not agree with the petitioners contention that the RTC has overlooked certain facts of great weight and value in arriving at its decision. The RTC merely took into consideration evidence which it found to be more credible than the self-serving and uncorroborated testimony of the petitioner. At this juncture, we reiterate the well-entrenched doctrine that the findings of fact of the CA affirming those of the trial court are accorded great respect, even finality, by this Court. Only errors of law, not of fact, may be reviewed by this Court in petitions for review on certiorari under Rule 45.[39] A departure from the general rule may be warranted where the findings of fact of the CA are contrary to the findings and conclusions of the trial court, or when the same is unsupported by the evidence on record.[40] There is no reason to apply the exception in the instant case because the findings and conclusions of the CA are in full accord with those of the trial court. These findings are buttressed by the evidence on record. Moreover, the issues and errors alleged in this petition are substantially the very same questions of fact raised by petitioner in the appellate court. On the issue of whether the P200,000.00 was really a loan, it is well to remember that a check may be evidence of indebtedness.[41] A check, the entries of which are in writing, could prove a loan transaction.[42] It is pure naivet to insist that an entrepreneur who has several sources of income and has access to considerable bank credit, no longer has any reason to borrow any amount.

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The petitioners allegation that the P200,000.00 was advance on her share in the profits of Hagonoy Lumber is implausible. It is true that Hagonoy Lumber was originally owned by the parents of petitioner and respondent. However, on December 8, 1986, the heirs freely renounced and waived in favor of their sister Chua Sioc Huan all their hereditary shares and interest therein, as shown by the Deed of Partition which the petitioner herself signed. By virtue of this deed, Chua Sioc Huan became the sole owner and proprietor of Hagonoy Lumber. Thus, when the respondent delivered the check for P200,000.00 to the petitioner on June 7, 1988, Chua Sioc Huan was already the sole owner of Hagonoy Lumber. At that time, both petitioner and respondent no longer had any interest in the business enterprise; neither had a right to demand a share in the profits of the business. Respondent became the sole owner of Hagonoy Lumber only after Chua Sioc Huan sold it to him on August 1, 1990. So, when the respondent delivered to the petitioner the P200,000.00 check on June 7, 1988, it could not have been given as an advance on petitioners share in the business, because at that moment in time both of them had no participation, interest or share in Hagonoy Lumber. Even assuming, arguendo, that the check was an advance on the petitioners share in the profits of the business, it was highly unlikely that the respondent would deliver a check drawn against his personal, and not against the business enterprises account. It is also worthy to note that both the Deed of Partition and the Deed of Sale were acknowledged before a Notary Public. The notarization of a private document converts it into a public document, and makes it admissible in court without further proof of its authenticity.[43] It is entitled to full faith and credit upon its face.[44] A notarized document carries evidentiary weight as to its due execution, and documents acknowledged before a notary public have in their favor the presumption of regularity. Such a document must be given full force and effect absent a strong, complete and conclusive proof of its falsity or nullity on account of some flaws or defects recognized by law.[45] A public document executed and attested through the intervention of a notary public is, generally, evidence of the facts therein express in clear unequivocal manner.[46] Petitioner, however, maintains that the RTC erred in admitting in evidence a mere copy of the Deed of Partition and the Deed of Sale in violation of the best evidence rule. In addition, petitioner insists that the Deed of Sale was not the result of bona fidenegotiations between a true seller and buyer. The best evidence rule as encapsulated in Rule 130, Section 3,[47] of the Revised Rules of Civil Procedure applies only when the content of such document is the subject of the inquiry. Where the issue is only as to whether such document was actually executed, or exists, or on the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible. Any other substitutionary evidence is likewise admissible without need to account for the original.[48] Moreover, production of the original may be dispensed with, in the trial courts discretion, whenever the opponent does not bona fide dispute the contents of the document and no other useful purpose will be served by requiring production.[49] Accordingly, we find that the best evidence rule is not applicable to the instant case. Here, there was no dispute as to the terms of either deed; hence, the RTC correctly admitted in evidence mere copies of the two deeds. The petitioner never even denied their due execution and admitted that she signed the Deed of Partition.[50] As for the Deed of Sale, petitioner had, in effect, admitted its genuineness and due execution when she failed to specifically deny it in the manner required by the rules.[51] The petitioner merely claimed that said documents do not express the true agreement and intention of the parties since they were only provisional paper arrangements made upon the advice of counsel.[52] Apparently, the petitioner does not contest the contents of these deeds but alleges that there was a contemporaneous agreement that the transfer of Hagonoy Lumber to Chua Sioc Huan was only temporary. An agreement or the contract between the parties is the formal expression of the parties rights, duties and obligations. It is the best evidence of the intention of the parties.[53] The parties intention is to be deciphered from the language used in the contract, not from the unilateral post facto assertions of one of the parties, or of third parties who are strangers to the contract.[54] Thus, when the terms of an agreement have been reduced to writing, it is deemed to contain all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement.[55] WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CV No. 66790 dated May 23, 2003 and Resolution dated December 2, 2003 are AFFIRMED.

SO ORDERED.