13 14. Evidence

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Prof. Avena
13. RES INTER ALIOS ACTA
G. R. No. 158149
Page 1 of 149
and the Central Bank of the Philippines as security for advances

amounting to P22,185,193.74.4 Nevertheless, XEI continued selling the
residential lots in the subdivision as agent of OBM.5
February 9, 2006
BOSTON BANK OF THE PHILIPPINES, (formerly BANK OF

COMMERCE), Petitioner,
vs.
PERLA P. MANALO and CARLOS MANALO, JR., Respondents.
DECISION
CALLEJO, SR., J.:
Before us is a Petition for Review on Certiorari of the Decision1 of the
Court of Appeals (CA) in CA-G.R. CV No. 47458 affirming, on appeal, the
Decision2 of the Regional Trial Court (RTC) of Quezon City, Branch 98, in
Civil Case No. Q-89-3905.
The Antecedents
The Xavierville Estate, Inc. (XEI) was the owner of parcels of land in
Quezon City, known as the Xavierville Estate Subdivision, with an area of
42 hectares. XEI caused the subdivision of the property into residential
lots, which was then offered for sale to individual lot buyers.3
On September 8, 1967, XEI, through its General Manager, Antonio
Ramos, as vendor, and The Overseas Bank of Manila (OBM), as vendee,
executed a "Deed of Sale of Real Estate" over some residential lots in the
subdivision, including Lot 1, Block 2, with an area of 907.5 square
meters, and Lot 2, Block 2, with an area of 832.80 square meters. The
transaction was subject to the approval of the Board of Directors of OBM,
and was covered by real estate mortgages in favor of the Philippine
National Bank as security for its account amounting to P5,187,000.00,
Sometime in 1972, then XEI president Emerito Ramos, Jr. contracted the
services of Engr. Carlos Manalo, Jr. who was in business of drilling deep
water wells and installing pumps under the business name Hurricane
Commercial, Inc. For P34,887.66, Manalo, Jr. installed a water pump at
Ramos residence at the corner of Aurora Boulevard and Katipunan
Avenue, Quezon City. Manalo, Jr. then proposed to XEI, through Ramos,
to purchase a lot in the Xavierville subdivision, and offered as part of the
downpayment the P34,887.66 Ramos owed him. XEI, through Ramos,
agreed. In a letter dated February 8, 1972, Ramos requested Manalo, Jr.
to choose which lots he wanted to buy so that the price of the lots and
the terms of payment could be fixed and incorporated in the conditional
sale.6 Manalo, Jr. met with Ramos and informed him that he and his wife
Perla had chosen Lots 1 and 2 of Block 2 with a total area of 1,740.3
square meters.
In a letter dated August 22, 1972 to Perla Manalo, Ramos confirmed the
reservation of the lots. He also pegged the price of the lots at P200.00
per square meter, or a total of P348,060.00, with a 20% down payment
of the purchase price amounting to P69,612.00 less the P34,887.66
owing from Ramos, payable on or before December 31, 1972; the
corresponding Contract of Conditional Sale would then be signed on or
before the same date, but if the selling operations of XEI resumed after
December 31, 1972, the balance of the downpayment would fall due
then, and the spouses would sign the aforesaid contract within five (5)
days from receipt of the notice of resumption of such selling operations.
It was also stated in the letter that, in the meantime, the spouses may
introduce improvements thereon subject to the rules and regulations
imposed by XEI in the subdivision. Perla Manalo conformed to the letter
agreement.7
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Prof. Avena
The spouses Manalo took possession of the property on September 2,

1972, constructed a house thereon, and installed a fence around the
perimeter of the lots.
In the meantime, many of the lot buyers refused to pay their monthly
installments until they were assured that they would be issued Torrens
titles over the lots they had purchased.8 The spouses Manalo were
notified of the resumption of the selling operations of XEI.9 However,
they did not pay the balance of the downpayment on the lots because
Ramos failed to prepare a contract of conditional sale and transmit the
same to Manalo for their signature. On August 14, 1973, Perla Manalo
went to the XEI office and requested that the payment of the amount
representing the balance of the downpayment be deferred, which,
however, XEI rejected. On August 10, 1973, XEI furnished her with a
statement of their account as of July 31, 1973, showing that they had a
balance of P34,724.34 on the downpayment of the two lots after
deducting the account of Ramos, plus P3,819.6810 interest thereon from
September 1, 1972 to July 31, 1973, and that the interests on the unpaid
balance of the purchase price of P278,448.00 from September 1, 1972 to
July 31, 1973 amounted to P30,629.28.11 The spouses were informed
that they were being billed for said unpaid interests.12
On January 25, 1974, the spouses Manalo received another statement of
account from XEI, inclusive of interests on the purchase price of the
lots.13 In a letter dated April 6, 1974 to XEI, Manalo, Jr. stated they had
not yet received the notice of resumption of Leis selling operations, and
that there had been no arrangement on the payment of interests; hence,
they should not be charged with interest on the balance of the
downpayment on the property.14 Further, they demanded that a deed of
conditional sale over the two lots be transmitted to them for their
signatures. However, XEI ignored the demands. Consequently, the
spouses refused to pay the balance of the downpayment of the purchase
price.15
Page 2 of 149
Sometime in June 1976, Manalo, Jr. constructed a business sign in the

sidewalk near his house. In a letter dated June 17, 1976, XEI informed
Manalo, Jr. that business signs were not allowed along the sidewalk. It
demanded that he remove the same, on the ground, among others, that
the sidewalk was not part of the land which he had purchased on
installment basis from XEI.16 Manalo, Jr. did not respond. XEI reiterated
its demand on September 15, 1977.17
Subsequently, XEI turned over its selling operations to OBM, including
the receivables for lots already contracted and those yet to be sold.18 On
December 8, 1977, OBM warned Manalo, Jr., that "putting up of a
business sign is specifically prohibited by their contract of conditional
sale" and that his failure to comply with its demand would impel it to
avail of the remedies as provided in their contract of conditional sale.19
Meanwhile, on December 5, 1979, the Register of Deeds issued Transfer
Certificate of Title (TCT) No. T-265822 over Lot 1, Block 2, and TCT No.
T-265823 over Lot 2, Block 2, in favor of the OBM.20 The lien in favor of
the Central Bank of the Philippines was annotated at the dorsal portion
of said title, which was later cancelled on August 4, 1980.21
Subsequently, the Commercial Bank of Manila (CBM) acquired the
Xavierville Estate from OBM. CBM wrote Edilberto Ng, the president of
Xavierville Homeowners Association that, as of January 31, 1983,
Manalo, Jr. was one of the lot buyers in the subdivision.22 CBM reiterated
in its letter to Ng that, as of January 24, 1984, Manalo was a homeowner
in the subdivision.23
In a letter dated August 5, 1986, the CBM requested Perla Manalo to stop
any on-going construction on the property since it (CBM) was the owner
of the lot and she had no permission for such construction.24 She agreed
to have a conference meeting with CBM officers where she informed
them that her husband had a contract with OBM, through XEI, to
purchase the property. When asked to prove her claim, she promised to
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send the documents to CBM. However, she failed to do so.25 On

September 5, 1986, CBM reiterated its demand that it be furnished with
the documents promised,26 but Perla Manalo did not respond.
On July 27, 1987, CBM filed a complaint27 for unlawful detainer against
the spouses with the Metropolitan Trial Court of Quezon City. The case
was docketed as Civil Case No. 51618. CBM claimed that the spouses had
been unlawfully occupying the property without its consent and that
despite its demands, they refused to vacate the property. The latter
alleged that they, as vendors, and XEI, as vendee, had a contract of sale
over the lots which had not yet been rescinded.28
While the case was pending, the spouses Manalo wrote CBM to offer an
amicable settlement, promising to abide by the purchase price of the
property (P313,172.34), per agreement with XEI, through Ramos.
However, on July 28, 1988, CBM wrote the spouses, through counsel,
proposing that the price of P1,500.00 per square meter of the property
was a reasonable starting point for negotiation of the settlement.29 The
spouses rejected the counter proposal,30 emphasizing that they would
abide by their original agreement with XEI. CBM moved to withdraw its
complaint31 because of the issues raised.32
In the meantime, the CBM was renamed the Boston Bank of the
Philippines. After CBM filed its complaint against the spouses Manalo,
the latter filed a complaint for specific performance and damages against
the bank before the Regional Trial Court (RTC) of Quezon City on
October 31, 1989.
The plaintiffs alleged therein that they had always been ready, able and
willing to pay the installments on the lots sold to them by the
defendants remote predecessor-in-interest, as might be or stipulated in
the contract of sale, but no contract was forthcoming; they constructed
their house worth P2,000,000.00 on the property in good faith; Manalo,
Jr., informed the defendant, through its counsel, on October 15, 1988
Page 3 of 149
that he would abide by the terms and conditions of his original

agreement with the defendants predecessor-in-interest; during the
hearing of the ejectment case on October 16, 1988, they offered to pay
P313,172.34 representing the balance on the purchase price of said lots;
such tender of payment was rejected, so that the subject lots could be
sold at considerably higher prices to third parties.
Plaintiffs further alleged that upon payment of the P313,172.34, they
were entitled to the execution and delivery of a Deed of Absolute Sale
covering the subject lots, sufficient in form and substance to transfer
title thereto free and clear of any and all liens and encumbrances of
whatever kind and nature.33 The plaintiffs prayed that, after due hearing,
judgment be rendered in their favor, to wit:
WHEREFORE, it is respectfully prayed that after due hearing:
(a) The defendant should be ordered to execute and deliver a
Deed of Absolute Sale over subject lots in favor of the plaintiffs
after payment of the sum of P313,172.34, sufficient in form and
substance to transfer to them titles thereto free and clear of any
and all liens and encumbrances of whatever kind or nature;
(b) The defendant should be held liable for moral and exemplary
damages in the amounts of P300,000.00 and P30,000.00,
respectively, for not promptly executing and delivering to
plaintiff the necessary Contract of Sale, notwithstanding
repeated demands therefor and for having been constrained to
engage the services of undersigned counsel for which they
agreed to pay attorneys fees in the sum of P50,000.00 to enforce
their rights in the premises and appearance fee of P500.00;
(c) And for such other and further relief as may be just and
equitable in the premises.34
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Prof. Avena
In its Answer to the complaint, the defendant interposed the following

affirmative defenses: (a) plaintiffs had no cause of action against it
because the August 22, 1972 letter agreement between XEI and the
plaintiffs was not binding on it; and (b) "it had no record of any contract
to sell executed by it or its predecessor, or of any statement of accounts
from its predecessors, or records of payments of the plaintiffs or of any
documents which entitled them to the possession of the lots."35 The
defendant, likewise, interposed counterclaims for damages and
attorneys fees and prayed for the eviction of the plaintiffs from the
property.36
Meanwhile, in a letter dated January 25, 1993, plaintiffs, through
counsel, proposed an amicable settlement of the case by paying
P942,648.70, representing the balance of the purchase price of the two
lots based on the current market value.37 However, the defendant
rejected the same and insisted that for the smaller lot, they pay
P4,500,000.00, the current market value of the property.38 The
defendant insisted that it owned the property since there was no
contract or agreement between it and the plaintiffs relative thereto.
During the trial, the plaintiffs adduced in evidence the separate
Contracts of Conditional Sale executed between XEI and Alberto Soller;39
Alfredo Aguila,40 and Dra. Elena Santos-Roque41 to prove that XEI
continued selling residential lots in the subdivision as agent of OBM after
the latter had acquired the said lots.
For its part, defendant presented in evidence the letter dated August 22,
1972, where XEI proposed to sell the two lots subject to two suspensive
conditions: the payment of the balance of the downpayment of the
property, and the execution of the corresponding contract of conditional
sale. Since plaintiffs failed to pay, OBM consequently refused to execute
the corresponding contract of conditional sale and forfeited the
P34,877.66 downpayment for the two lots, but did not notify them of
said forfeiture.42 It alleged that OBM considered the lots unsold because
Page 4 of 149
the titles thereto bore no annotation that they had been sold under a
contract of conditional sale, and the plaintiffs were not notified of XEIs
resumption of its selling operations.
On May 2, 1994, the RTC rendered judgment in favor of the plaintiffs and
against the defendant. The fallo of the decision reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and
against the defendant
(a) Ordering the latter to execute and deliver a Deed of Absolute
Sale over Lot 1 and 2, Block 2 of the Xavierville Estate
Subdivision after payment of the sum of P942,978.70 sufficient
in form and substance to transfer to them titles thereto free from
any and all liens and encumbrances of whatever kind and nature.
(b) Ordering the defendant to pay moral and exemplary damages
in the amount of P150,000.00; and
(c) To pay attorneys fees in the sum of P50,000.00 and to pay
the costs.
SO ORDERED.43
The trial court ruled that under the August 22, 1972 letter agreement of
XEI and the plaintiffs, the parties had a "complete contract to sell" over
the lots, and that they had already partially consummated the same. It
declared that the failure of the defendant to notify the plaintiffs of the
resumption of its selling operations and to execute a deed of conditional
sale did not prevent the defendants obligation to convey titles to the lots
from acquiring binding effect. Consequently, the plaintiffs had a cause of
action to compel the defendant to execute a deed of sale over the lots in
their favor.
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Boston Bank appealed the decision to the CA, alleging that the lower
court erred in (a) not concluding that the letter of XEI to the spouses
Manalo, was at most a mere contract to sell subject to suspensive
conditions, i.e., the payment of the balance of the downpayment on the
property and the execution of a deed of conditional sale (which were not
complied with); and (b) in awarding moral and exemplary damages to
the spouses Manalo despite the absence of testimony providing facts to
justify such awards.44
On September 30, 2002, the CA rendered a decision affirming that of the
RTC with modification. The fallo reads:
WHEREFORE, the appealed decision is AFFIRMED with MODIFICATIONS
that (a) the figure "P942,978.70" appearing [in] par. (a) of the
dispositive portion thereof is changed to "P313,172.34 plus interest
thereon at the rate of 12% per annum from September 1, 1972 until fully
paid" and (b) the award of moral and exemplary damages and attorneys
fees in favor of plaintiffs-appellees is DELETED.
SO ORDERED.45
The appellate court sustained the ruling of the RTC that the appellant
and the appellees had executed a Contract to Sell over the two lots but
declared that the balance of the purchase price of the property
amounting to P278,448.00 was payable in fixed amounts, inclusive of
pre-computed interests, from delivery of the possession of the property
to the appellees on a monthly basis for 120 months, based on the deeds
of conditional sale executed by XEI in favor of other lot buyers.46 The CA
also declared that, while XEI must have resumed its selling operations
before the end of 1972 and the downpayment on the property remained
unpaid as of December 31, 1972, absent a written notice of cancellation
of the contract to sell from the bank or notarial demand therefor as
required by Republic Act No. 6552, the spouses had, at the very least, a
60-day grace period from January 1, 1973 within which to pay the same.
Page 5 of 149
Boston Bank filed a motion for the reconsideration of the decision

alleging that there was no perfected contract to sell the two lots, as there
was no agreement between XEI and the respondents on the manner of
payment as well as the other terms and conditions of the sale. It further
averred that its claim for recovery of possession of the aforesaid lots in
its Memorandum dated February 28, 1994 filed before the trial court
constituted a judicial demand for rescission that satisfied the
requirements of the New Civil Code. However, the appellate court denied
the motion.
Boston Bank, now petitioner, filed the instant petition for review on
certiorari assailing the CA rulings. It maintains that, as held by the CA,
the records do not reflect any schedule of payment of the 80% balance of
the purchase price, or P278,448.00. Petitioner insists that unless the
parties had agreed on the manner of payment of the principal amount,
including the other terms and conditions of the contract, there would be
no existing contract of sale or contract to sell.47 Petitioner avers that the
letter agreement to respondent spouses dated August 22, 1972 merely
confirmed their reservation for the purchase of Lot Nos. 1 and 2,
consisting of 1,740.3 square meters, more or less, at the price of P200.00
per square meter (or P348,060.00), the amount of the downpayment
thereon and the application of the P34,887.00 due from Ramos as part of
such downpayment.
Petitioner asserts that there is no factual basis for the CA ruling that the
terms and conditions relating to the payment of the balance of the
purchase price of the property (as agreed upon by XEI and other lot
buyers in the same subdivision) were also applicable to the contract
entered into between the petitioner and the Respondents. It insists that
such a ruling is contrary to law, as it is tantamount to compelling the
parties to agree to something that was not even discussed, thus, violating
their freedom to contract. Besides, the situation of the respondents
cannot be equated with those of the other lot buyers, as, for one thing,
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Page 6 of 149
the respondents made a partial payment on the downpayment for the

two lots even before the execution of any contract of conditional sale.
respondents cite the ruling of this Court in Buenaventura v. Court of

Appeals48 to support their submission.
Petitioner posits that, even on the assumption that there was a perfected
contract to sell between the parties, nevertheless, it cannot be compelled
to convey the property to the respondents because the latter failed to
pay the balance of the downpayment of the property, as well as the
balance of 80% of the purchase price, thus resulting in the extinction of
its obligation to convey title to the lots to the Respondents.
They argue that even if the manner and timeline for the payment of the
balance of the purchase price of the property is an essential requisite of
a contract to sell, nevertheless, as shown by their letter agreement of
August 22, 1972 with the OBM, through XEI and the other letters to
them, an agreement was reached as to the manner of payment of the
balance of the purchase price. They point out that such letters referred
to the terms of the terms of the deeds of conditional sale executed by XEI
in favor of the other lot buyers in the subdivision, which contained
uniform terms of 120 equal monthly installments (excluding the
downpayment, but inclusive of pre-computed interests). The
respondents assert that XEI was a real estate broker and knew that the
contracts involving residential lots in the subdivision contained uniform
terms as to the manner and timeline of the payment of the purchase
price of said lots.
Another egregious error of the CA, petitioner avers, is the application of

Republic Act No. 6552. It insists that such law applies only to a perfected
agreement or perfected contract to sell, not in this case where the
downpayment on the purchase price of the property was not completely
paid, and no installment payments were made by the buyers.
Petitioner also faults the CA for declaring that petitioner failed to serve a
notice on the respondents of cancellation or rescission of the contract to
sell, or notarial demand therefor. Petitioner insists that its August 5,
1986 letter requiring respondents to vacate the property and its
complaint for ejectment in Civil Case No. 51618 filed in the Metropolitan
Trial Court amounted to the requisite demand for a rescission of the
contract to sell. Moreover, the action of the respondents below was
barred by laches because despite demands, they failed to pay the balance
of the purchase price of the lots (let alone the downpayment) for a
considerable number of years.
For their part, respondents assert that as long as there is a meeting of
the minds of the parties to a contract of sale as to the price, the contract
is valid despite the parties failure to agree on the manner of payment. In
such a situation, the balance of the purchase price would be payable on
demand, conformably to Article 1169 of the New Civil Code. They insist
that the law does not require a party to agree on the manner of payment
of the purchase price as a prerequisite to a valid contract to sell. The
Respondents further posit that the terms and conditions to be

incorporated in the "corresponding contract of conditional sale" to be
executed by the parties would be the same as those contained in the
contracts of conditional sale executed by lot buyers in the subdivision.
After all, they maintain, the contents of the corresponding contract of
conditional sale referred to in the August 22, 1972 letter agreement
envisaged those contained in the contracts of conditional sale that XEI
and other lot buyers executed. Respondents cite the ruling of this Court
in Mitsui Bussan Kaisha v. Manila E.R.R. & L. Co.49
The respondents aver that the issues raised by the petitioner are factual,
inappropriate in a petition for review on certiorari under Rule 45 of the
Rules of Court. They assert that petitioner adopted a theory in litigating
the case in the trial court, but changed the same on appeal before the CA,
and again in this Court. They argue that the petitioner is estopped from
adopting a new theory contrary to those it had adopted in the trial and
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appellate courts. Moreover, the existence of a contract of conditional sale

was admitted in the letters of XEI and OBM. They aver that they became
owners of the lots upon delivery to them by XEI.
The issues for resolution are the following: (1) whether the factual
issues raised by the petitioner are proper; (2) whether petitioner or its
predecessors-in-interest, the XEI or the OBM, as seller, and the
respondents, as buyers, forged a perfect contract to sell over the
property; (3) whether petitioner is estopped from contending that no
such contract was forged by the parties; and (4) whether respondents
has a cause of action against the petitioner for specific performance.
The rule is that before this Court, only legal issues may be raised in a
petition for review on certiorari. The reason is that this Court is not a
trier of facts, and is not to review and calibrate the evidence on record.
Moreover, the findings of facts of the trial court, as affirmed on appeal by
the Court of Appeals, are conclusive on this Court unless the case falls
under any of the following exceptions:
(1) when the conclusion is a finding grounded entirely on speculations,
surmises and conjectures; (2) when the inference made is manifestly
mistaken, absurd or impossible; (3) where there is a grave abuse of
discretion; (4) when the judgment is based on a misapprehension of
facts; (5) when the findings of fact are conflicting; (6) when the Court of
Appeals, in making its findings went beyond the issues of the case and
the same is contrary to the admissions of both appellant and appellee;
(7) when the findings are contrary to those of the trial court; (8) when
the findings of fact are conclusions without citation of specific evidence
on which they are based; (9) when the facts set forth in the petition as
well as in the petitioners main and reply briefs are not disputed by the
respondents; and (10) when the findings of fact of the Court of Appeals
are premised on the supposed absence of evidence and contradicted by
the evidence on record.50
Page 7 of 149
We have reviewed the records and we find that, indeed, the ruling of the
appellate court dismissing petitioners appeal is contrary to law and is
not supported by evidence. A careful examination of the factual
backdrop of the case, as well as the antecedental proceedings constrains
us to hold that petitioner is not barred from asserting that XEI or OBM,
on one hand, and the respondents, on the other, failed to forge a
perfected contract to sell the subject lots.
It must be stressed that the Court may consider an issue not raised
during the trial when there is plain error.51 Although a factual issue was
not raised in the trial court, such issue may still be considered and
resolved by the Court in the interest of substantial justice, if it finds that
to do so is necessary to arrive at a just decision,52 or when an issue is
closely related to an issue raised in the trial court and the Court of
Appeals and is necessary for a just and complete resolution of the case.53
When the trial court decides a case in favor of a party on certain
grounds, the Court may base its decision upon some other points, which
the trial court or appellate court ignored or erroneously decided in favor
of a party.54
In this case, the issue of whether XEI had agreed to allow the
respondents to pay the purchase price of the property was raised by the
parties. The trial court ruled that the parties had perfected a contract to
sell, as against petitioners claim that no such contract existed. However,
in resolving the issue of whether the petitioner was obliged to sell the
property to the respondents, while the CA declared that XEI or OBM and
the respondents failed to agree on the schedule of payment of the
balance of the purchase price of the property, it ruled that XEI and the
respondents had forged a contract to sell; hence, petitioner is entitled to
ventilate the issue before this Court.
We agree with petitioners contention that, for a perfected contract of
sale or contract to sell to exist in law, there must be an agreement of the
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parties, not only on the price of the property sold, but also on the
manner the price is to be paid by the vendee.
Under Article 1458 of the New Civil Code, in a contract of sale, whether
absolute or conditional, one of the contracting parties obliges himself to
transfer the ownership of and deliver a determinate thing, and the other
to pay therefor a price certain in money or its equivalent. A contract of
sale is perfected at the moment there is a meeting of the minds upon the
thing which is the object of the contract and the price. From the
averment of perfection, the parties are bound, not only to the fulfillment
of what has been expressly stipulated, but also to all the consequences
which, according to their nature, may be in keeping with good faith,
usage and law.55 On the other hand, when the contract of sale or to sell is
not perfected, it cannot, as an independent source of obligation, serve as
a binding juridical relation between the parties.56
A definite agreement as to the price is an essential element of a binding
agreement to sell personal or real property because it seriously affects
the rights and obligations of the parties. Price is an essential element in
the formation of a binding and enforceable contract of sale. The fixing of
the price can never be left to the decision of one of the contracting
parties. But a price fixed by one of the contracting parties, if accepted by
the other, gives rise to a perfected sale.57
It is not enough for the parties to agree on the price of the property. The
parties must also agree on the manner of payment of the price of the
property to give rise to a binding and enforceable contract of sale or
contract to sell. This is so because the agreement as to the manner of
payment goes into the price, such that a disagreement on the manner of
payment is tantamount to a failure to agree on the price.58
In a contract to sell property by installments, it is not enough that the
parties agree on the price as well as the amount of downpayment. The
parties must, likewise, agree on the manner of payment of the balance of
Page 8 of 149
the purchase price and on the other terms and conditions relative to the
sale. Even if the buyer makes a downpayment or portion thereof, such
payment cannot be considered as sufficient proof of the perfection of any
purchase and sale between the parties. Indeed, this Court ruled in
Velasco v. Court of Appeals59 that:
It is not difficult to glean from the aforequoted averments that the
petitioners themselves admit that they and the respondent still had to
meet and agree on how and when the down-payment and the
installment payments were to be paid. Such being the situation, it
cannot, therefore, be said that a definite and firm sales agreement
between the parties had been perfected over the lot in question. Indeed,
this Court has already ruled before that a definite agreement on the
manner of payment of the purchase price is an essential element in the
formation of a binding and enforceable contract of sale. The fact,
therefore, that the petitioners delivered to the respondent the sum of
P10,000.00 as part of the downpayment that they had to pay cannot be
considered as sufficient proof of the perfection of any purchase and sale
agreement between the parties herein under article 1482 of the New
Civil Code, as the petitioners themselves admit that some essential
matter the terms of payment still had to be mutually covenanted.60
We agree with the contention of the petitioner that, as held by the CA,
there is no showing, in the records, of the schedule of payment of the
balance of the purchase price on the property amounting to
P278,448.00. We have meticulously reviewed the records, including
Ramos February 8, 1972 and August 22, 1972 letters to respondents,61
and find that said parties confined themselves to agreeing on the price of
the property (P348,060.00), the 20% downpayment of the purchase
price (P69,612.00), and credited respondents for the P34,887.00 owing
from Ramos as part of the 20% downpayment. The timeline for the
payment of the balance of the downpayment (P34,724.34) was also
agreed upon, that is, on or before XEI resumed its selling operations, on
or before December 31, 1972, or within five (5) days from written notice
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of such resumption of selling operations. The parties had also agreed to

incorporate all the terms and conditions relating to the sale, inclusive of
the terms of payment of the balance of the purchase price and the other
substantial terms and conditions in the "corresponding contract of
conditional sale," to be later signed by the parties, simultaneously with
respondents settlement of the balance of the downpayment.
The February 8, 1972 letter of XEI reads:
Mr. Carlos T. Manalo, Jr.
Hurricane Rotary Well Drilling
Rizal Avenue Ext.,Caloocan City
Dear Mr. Manalo:
We agree with your verbal offer to exchange the
proceeds of your contract with us to form as a down
payment for a lot in our Xavierville Estate Subdivision.
Please let us know your choice lot so that we can fix the
price and terms of payment in our conditional sale.
Sincerely yours,
XAVIERVILLE ESTATE, INC.
(Signed)
EMERITO B. RAMOS, JR.
President
CONFORME:
Page 9 of 149
(Signed)
CARLOS T. MANALO, JR.
Hurricane Rotary Well Drilling62
The August 22, 1972 letter agreement of XEI and the respondents reads:
Mrs. Perla P. Manalo
1548 Rizal Avenue Extensionbr>Caloocan City
Dear Mrs. Manalo:
This is to confirm your reservation of Lot Nos. 1 and 2;
Block 2 of our consolidation-subdivision plan as
amended, consisting of 1,740.3 square meters more or
less, at the price of P200.00 per square meter or a total
price of P348,060.00.
It is agreed that as soon as we resume selling operations,
you must pay a down payment of 20% of the purchase
price of the said lots and sign the corresponding Contract
of Conditional Sale, on or before December 31, 1972,
provided, however, that if we resume selling after
December 31, 1972, then you must pay the
aforementioned down payment and sign the aforesaid
contract within five (5) days from your receipt of our
notice of resumption of selling operations.
In the meanwhile, you may introduce such improvements
on the said lots as you may desire, subject to the rules
and regulations of the subdivision.
If the above terms and conditions are acceptable to you,
please signify your conformity by signing on the space
herein below provided.
Law __ Evidence
Prof. Avena
Thank you.
parties are in agreement that there had been no contract of conditional

sale ever executed by XEI, OBM or petitioner, as vendor, and the
respondents, as vendees.68
Very truly yours,

XAVIERVILLE ESTATE, INC. CONFORME:
By:
(Signed)
EMERITO B. RAMOS, JR.
Page 10 of 149
(Signed)
PERLA P. MANALO
President Buyer63
Based on these two letters, the determination of the terms of payment of
the P278,448.00 had yet to be agreed upon on or before December 31,
1972, or even afterwards, when the parties sign the corresponding
contract of conditional sale.
Jurisprudence is that if a material element of a contemplated contract is
left for future negotiations, the same is too indefinite to be enforceable.64
And when an essential element of a contract is reserved for future
agreement of the parties, no legal obligation arises until such future
agreement is concluded.65
So long as an essential element entering into the proposed obligation of
either of the parties remains to be determined by an agreement which
they are to make, the contract is incomplete and unenforceable.66 The
reason is that such a contract is lacking in the necessary qualities of
definiteness, certainty and mutuality.67
There is no evidence on record to prove that XEI or OBM and the
respondents had agreed, after December 31, 1972, on the terms of
payment of the balance of the purchase price of the property and the
other substantial terms and conditions relative to the sale. Indeed, the
The ruling of this Court in Buenaventura v. Court of Appeals has no

bearing in this case because the issue of the manner of payment of the
purchase price of the property was not raised therein.
We reject the submission of respondents that they and Ramos had
intended to incorporate the terms of payment contained in the three
contracts of conditional sale executed by XEI and other lot buyers in the
"corresponding contract of conditional sale," which would later be
signed by them.69 We have meticulously reviewed the respondents
complaint and find no such allegation therein.70 Indeed, respondents
merely alleged in their complaint that they were bound to pay the
balance of the purchase price of the property "in installments." When
respondent Manalo, Jr. testified, he was never asked, on direct
examination or even on cross-examination, whether the terms of
payment of the balance of the purchase price of the lots under the
contracts of conditional sale executed by XEI and other lot buyers would
form part of the "corresponding contract of conditional sale" to be
signed by them simultaneously with the payment of the balance of the
downpayment on the purchase price.
We note that, in its letter to the respondents dated June 17, 1976, or
almost three years from the execution by the parties of their August 22,
1972 letter agreement, XEI stated, in part, that respondents had
purchased the property "on installment basis."71 However, in the said
letter, XEI failed to state a specific amount for each installment, and
whether such payments were to be made monthly, semi-annually, or
annually. Also, respondents, as plaintiffs below, failed to adduce a shred
of evidence to prove that they were obliged to pay the P278,448.00
monthly, semi-annually or annually. The allegation that the payment of
the P278,448.00 was to be paid in installments is, thus, vague and
Law __ Evidence
Prof. Avena
Page 11 of 149
indefinite. Case law is that, for a contract to be enforceable, its terms

must be certain and explicit, not vague or indefinite.72
contracts of conditional sale executed by XEI and Soller, Aguila and

Roque.76 They likewise failed to prove such allegation in this Court.
There is no factual and legal basis for the CA ruling that, based on the
terms of payment of the balance of the purchase price of the lots under
the contracts of conditional sale executed by XEI and the other lot
buyers, respondents were obliged to pay the P278,448.00 with precomputed interest of 12% per annum in 120-month installments. As
gleaned from the ruling of the appellate court, it failed to justify its use of
the terms of payment under the three "contracts of conditional sale" as
basis for such ruling, to wit:
The bare fact that other lot buyers were allowed to pay the balance of
the purchase price of lots purchased by them in 120 or 180 monthly
installments does not constitute evidence that XEI also agreed to give the
respondents the same mode and timeline of payment of the
P278,448.00.
On the other hand, the records do not disclose the schedule of payment
of the purchase price, net of the downpayment. Considering, however,
the Contracts of Conditional Sale (Exhs. "N," "O" and "P") entered into by
XEI with other lot buyers, it would appear that the subdivision lots sold
by XEI, under contracts to sell, were payable in 120 equal monthly
installments (exclusive of the downpayment but including pre-computed
interests) commencing on delivery of the lot to the buyer.73
By its ruling, the CA unilaterally supplied an essential element to the
letter agreement of XEI and the Respondents. Courts should not
undertake to make a contract for the parties, nor can it enforce one, the
terms of which are in doubt.74 Indeed, the Court emphasized in Chua v.
Court of Appeals75 that it is not the province of a court to alter a contract
by construction or to make a new contract for the parties; its duty is
confined to the interpretation of the one which they have made for
themselves, without regard to its wisdom or folly, as the court cannot
supply material stipulations or read into contract words which it does
not contain.
Respondents, as plaintiffs below, failed to allege in their complaint that
the terms of payment of the P278,448.00 to be incorporated in the
"corresponding contract of conditional sale" were those contained in the
Under Section 34, Rule 130 of the Revised Rules of Court, evidence that
one did a certain thing at one time is not admissible to prove that he did
the same or similar thing at another time, although such evidence may
be received to prove habit, usage, pattern of conduct or the intent of the
parties.
Similar acts as evidence. Evidence that one did or did not do a certain
thing at one time is not admissible to prove that he did or did not do the
same or a similar thing at another time; but it may be received to prove a
specific intent or knowledge, identity, plan, system, scheme, habit,
custom or usage, and the like.
However, respondents failed to allege and prove, in the trial court, that,
as a matter of business usage, habit or pattern of conduct, XEI granted all
lot buyers the right to pay the balance of the purchase price in
installments of 120 months of fixed amounts with pre-computed
interests, and that XEI and the respondents had intended to adopt such
terms of payment relative to the sale of the two lots in question. Indeed,
respondents adduced in evidence the three contracts of conditional sale
executed by XEI and other lot buyers merely to prove that XEI continued
to sell lots in the subdivision as sales agent of OBM after it acquired said
lots, not to prove usage, habit or pattern of conduct on the part of XEI to
require all lot buyers in the subdivision to pay the balance of the
purchase price of said lots in 120 months. It further failed to prive that
Law __ Evidence
Prof. Avena
Page 12 of 149
the trial court admitted the said deeds77 as part of the testimony of
respondent Manalo, Jr.78
usage by implication into their agreement, if nothing is said to be

contrary.83
Habit, custom, usage or pattern of conduct must be proved like any other
facts. Courts must contend with the caveat that, before they admit
evidence of usage, of habit or pattern of conduct, the offering party must
establish the degree of specificity and frequency of uniform response
that ensures more than a mere tendency to act in a given manner but
rather, conduct that is semi-automatic in nature. The offering party must
allege and prove specific, repetitive conduct that might constitute
evidence of habit. The examples offered in evidence to prove habit, or
pattern of evidence must be numerous enough to base on inference of
systematic conduct. Mere similarity of contracts does not present the
kind of sufficiently similar circumstances to outweigh the danger of
prejudice and confusion.
However, the respondents inexplicably failed to adduce sufficient

competent evidence to prove usage, habit or pattern of conduct of XEI to
justify the use of the terms of payment in the contracts of the other lot
buyers, and thus grant respondents the right to pay the P278,448.00 in
120 months, presumably because of respondents belief that the manner
of payment of the said amount is not an essential element of a contract
to sell. There is no evidence that XEI or OBM and all the lot buyers in the
subdivision, including lot buyers who pay part of the downpayment of
the property purchased by them in the form of service, had executed
contracts of conditional sale containing uniform terms and conditions.
Moreover, under the terms of the contracts of conditional sale executed
by XEI and three lot buyers in the subdivision, XEI agreed to grant 120
months within which to pay the balance of the purchase price to two of
them, but granted one 180 months to do so.84 There is no evidence on
record that XEI granted the same right to buyers of two or more lots.
In determining whether the examples are numerous enough, and

sufficiently regular, the key criteria are adequacy of sampling and
uniformity of response. After all, habit means a course of behavior of a
person regularly represented in like circumstances.79 It is only when
examples offered to establish pattern of conduct or habit are numerous
enough to lose an inference of systematic conduct that examples are
admissible. The key criteria are adequacy of sampling and uniformity of
response or ratio of reaction to situations.80
There are cases where the course of dealings to be followed is defined by
the usage of a particular trade or market or profession. As expostulated
by Justice Benjamin Cardozo of the United States Supreme Court: "Life
casts the moulds of conduct, which will someday become fixed as law.
Law preserves the moulds which have taken form and shape from life."81
Usage furnishes a standard for the measurement of many of the rights
and acts of men.82 It is also well-settled that parties who contract on a
subject matter concerning which known usage prevail, incorporate such
Irrefragably, under Article 1469 of the New Civil Code, the price of the
property sold may be considered certain if it be so with reference to
another thing certain. It is sufficient if it can be determined by the
stipulations of the contract made by the parties thereto85 or by reference
to an agreement incorporated in the contract of sale or contract to sell or
if it is capable of being ascertained with certainty in said contract;86 or if
the contract contains express or implied provisions by which it may be
rendered certain;87 or if it provides some method or criterion by which it
can be definitely ascertained.88 As this Court held in Villaraza v. Court of
Appeals,89 the price is considered certain if, by its terms, the contract
furnishes a basis or measure for ascertaining the amount agreed upon.
We have carefully reviewed the August 22, 1972 letter agreement of the
parties and find no direct or implied reference to the manner and
schedule of payment of the balance of the purchase price of the lots
Law __ Evidence
Prof. Avena
covered by the deeds of conditional sale executed by XEI and that of the
other lot buyers90 as basis for or mode of determination of the schedule
of the payment by the respondents of the P278,448.00.
The ruling of this Court in Mitsui Bussan Kaisha v. Manila Electric
Railroad and Light Company91 is not applicable in this case because the
basic price fixed in the contract was P9.45 per long ton, but it was
stipulated that the price was subject to modification "in proportion to
variations in calories and ash content, and not otherwise." In this case,
the parties did not fix in their letters-agreement, any method or mode of
determining the terms of payment of the balance of the purchase price of
the property amounting to P278,448.00.
It bears stressing that the respondents failed and refused to pay the
balance of the downpayment and of the purchase price of the property
amounting to P278,448.00 despite notice to them of the resumption by
XEI of its selling operations. The respondents enjoyed possession of the
property without paying a centavo. On the other hand, XEI and OBM
failed and refused to transmit a contract of conditional sale to the
Respondents. The respondents could have at least consigned the balance
of the downpayment after notice of the resumption of the selling
operations of XEI and filed an action to compel XEI or OBM to transmit to
them the said contract; however, they failed to do so.
As a consequence, respondents and XEI (or OBM for that matter) failed
to forge a perfected contract to sell the two lots; hence, respondents
have no cause of action for specific performance against petitioner.
Republic Act No. 6552 applies only to a perfected contract to sell and not
to a contract with no binding and enforceable effect.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The
Decision of the Court of Appeals in CA-G.R. CV No. 47458 is REVERSED
and SET ASIDE. The Regional Trial Court of Quezon City, Branch 98 is
ordered to dismiss the complaint. Costs against the Respondents.
Page 13 of 149
SO ORDERED.
EXHIBIT "N" Conditional Contract of Sale executed by Xavierville
Estate, Inc. in favor of Alberto Soller dated December 8, 1969, to prove
that after Xavierville Estate sold its lots, it continued to execute sales
contracts over same in its name; EXHIBIT "O" Xerox copy of Deed of
Absolute Sale executed by Xavierville Estate, Inc. in favor of Alfredo
Aguila dated May 20, 1970, to prove that although the lots in said
subdivision were already sold by virtue of EXHIBIT "L," Commercial
Bank of Manila (COMBANK) the VENDEE still allowed Xavierville Estate
to sign contracts in its name; EXHIBIT "P" Xerox copy of Deed of
Absolute Sale executed by Xavierville Estate, Inc. in favor of Elena Roque
Santos dated June 29, 1970, to prove that although lots in Xavierville
Estate were already sold to Combank, the latter still allowed Xavierville
Estate to sign contracts in its name;
77
Law __ Evidence
G.R. No. 177727
Prof. Avena
January 19, 2010
HAROLD V. TAMARGO, Petitioner,

vs.
ROMULO AWINGAN, LLOYD ANTIPORDA and LICERIO ANTIPORDA,
JR., Respondents.
DECISION
CORONA, J.:
This is a petition for review on certiorari1 of the November 10, 2006
decision2 and May 18, 2007 resolution3 of the Court of Appeals (CA) in
CA-G.R. SP No. 93610.
Atty. Franklin V. Tamargo and his eight-year-old daughter, Gail
Franzielle, were shot and killed at around 5:15 p.m. of August 15, 2003
along Nueva Street corner Escolta Street, Binondo, Manila. The police
had no leads on the perpetrators of the crime until a certain Reynaldo
Geron surfaced and executed an affidavit dated September 12, 2003. He
stated that a certain Lucio Columna told him during a drinking spree that
Atty. Tamargo was ordered killed by respondent Lloyd Antiporda and
that he (Columna) was one of those who killed Atty. Tamargo. He added
that he told the Tamargo family what he knew and that the sketch of the
suspect closely resembled Columna.4
After conducting a preliminary investigation and on the strength of
Gerons affidavit, the investigating prosecutor5 issued a resolution dated
December 5, 2003 finding probable cause against Columna and three
John Does.6 On February 2, 2004, the corresponding Informations for
murder were filed against them in the Regional Trial Court (RTC) of
Manila, one assigned to Branch 27 for the death of Atty. Franklin
Tamargo, and the other to Branch 29 for the death of the minor Gail
Page 14 of 149
Franzielle.7 Columna was arrested in the province of Cagayan on

February 17, 2004 and brought to Manila for detention and trial.8
On March 8, 2004, Columna (whose real name was Manuel, Jr.) executed
an affidavit wherein he admitted his participation as "look out" during
the shooting and implicated respondent Romulo Awingan (alias
"Mumoy") as the gunman and one Richard Mecate. He also tagged as
masterminds respondent Licerio Antiporda, Jr. and his son, respondent
Lloyd Antiporda.9 The former was the ex-mayor and the latter the mayor
of Buguey, Cagayan at that time. When the killing took place, Licerio
Antiporda was in detention for a kidnapping case in which Atty.
Tamargo was acting as private prosecutor.
Pursuant to this affidavit, petitioner Harold V. Tamargo (brother of Atty.
Tamargo) filed a complaint against those implicated by Columna in the
Office of the City Prosecutor of Manila.10
On April 19, 2004, Columna affirmed his affidavit before the
investigating prosecutor11 who subjected him to clarificatory
questions.12
Respondents denied any involvement in the killings. They alleged that
Licerio was a candidate for mayor in Buguey, Cagayan during the May
2004 elections and that the case was instituted by his political
opponents in order to derail his candidacy. The Antipordas admitted
that Atty. Tamargo was their political rival for the mayoralty post of
Buguey. Atty. Tamargo had been defeated twice by Lloyd and once by
Licerio. Before the killing, Atty. Tamargo filed an election case against
Lloyd and a kidnapping case in the Sandiganbayan against Licerio.
However, they claimed that both cases were dismissed as Lloyd emerged
as the winner in the elections and Licerio was acquitted by the
Sandiganbayan.13
Law __ Evidence
Prof. Avena
During the preliminary investigation, respondent Licerio presented

Columnas unsolicited handwritten letter dated May 3, 2004 to
respondent Lloyd, sent from Columnas jail cell in Manila. In the letter,
Columna disowned the contents of his March 8, 2004 affidavit and
narrated how he had been tortured until he signed the extrajudicial
confession. He stated that those he implicated had no participation in the
killings.14 Respondent Licerio also submitted an affidavit of Columna
dated May 25, 2004 wherein the latter essentially repeated the
statements in his handwritten letter.
Due to the submission of Columnas letter and affidavit, the investigating
prosecutor set a clarificatory hearing, to enable Columna to clarify his
contradictory affidavits and his unsolicited letter. During the hearing
held on October 22, 2004, Columna categorically admitted the
authorship and voluntariness of the unsolicited letter. He affirmed the
May 25, 2004 affidavit and denied that any violence had been employed
to obtain or extract the affidavit from him.151avvphi1
Thus, on November 10, 2004, the investigating prosecutor
recommended the dismissal of the charges. This was approved by the
city prosecutor.
Meanwhile, in another handwritten letter addressed to City Prosecutor
Ramon Garcia dated October 29, 2004, Columna said that he was only
forced to withdraw all his statements against respondents during the
October 22, 2004 clarificatory hearing because of the threats to his life
inside the jail. He requested that he be transferred to another detention
center.16
Aggrieved by the dismissal of the charges, petitioner filed an appeal to
the Department of Justice (DOJ).17 On May 30, 2005, the DOJ, through
then Secretary Raul M. Gonzalez, reversed the dismissal and ordered the
filing of the Informations for murder.18 He opined that the March 8, 2004
extrajudicial confession was not effectively impeached by the
Page 15 of 149
subsequent recantation and that there was enough evidence to prove the
probable guilt of respondents.19 Accordingly, the Informations were filed
and the cases were consolidated and assigned to the RTC of Manila,
Branch 29.20
However, on August 12, 2005, Secretary Gonzales granted the
Antipordas motion for reconsideration (MR) and directed the
withdrawal of the Informations.21 This time, he declared that the
extrajudicial confession of Columna was inadmissible against
respondents and that, even if it was admissible, it was not corroborated
by other evidence.22 As a result, on August 22, 2005, the trial prosecutor
filed a motion to withdraw the Informations. On October 4, 2005,
Secretary Gonzalez denied petitioners MR.
The RTC, through Judge Cielito Mindaro-Grulla, granted the motion to
withdraw the Informations in an order dated October 26, 2005.23
Petitioner filed an MR but the judge voluntarily inhibited herself without
resolving the same. The cases were re-raffled to Branch 19, presided by
Judge Zenaida R. Daguna. Judge Daguna granted the MR of petitioner in a
resolution dated December 9, 2005. She ruled that, based on Columnas
March 8, 2004 affidavit which he affirmed before the investigating
prosecutor, there was probable cause to hold the accused for trial. She
denied the MR of the Antipordas in an order dated February 6, 2006.
Consequently, respondent Awingan filed a special civil action for
certiorari and prohibition in the CA docketed as CA-G.R. SP No. 93610.
The Antipordas separately filed another certiorari case docketed as CAG.R. SP No. 94188.
In a decision dated November 10, 2006 in CA-G.R. SP No. 93610, the CA
ruled that the RTC judge gravely abused her discretion because she
arbitrarily left out of her assessment and evaluation the substantial
matters that the DOJ Secretary had fully taken into account in concluding
that there was no probable cause against all the accused. It also held that
Law __ Evidence
Prof. Avena
Columnas extrajudicial confession was not admissible against the

respondents because, aside from the recanted confession, there was no
other piece of evidence presented to establish the existence of the
conspiracy. Additionally, the confession was made only after Columna
was arrested and not while the conspirators were engaged in carrying
out the conspiracy.
After this decision was promulgated, CA-G.R. SP No. 93610 was
consolidated with CA-G.R. SP No. 94188. The CA denied reconsideration
in a resolution dated May 18, 2007. In a decision dated August 24, 2007,
the CA likewise granted the petition for certiorari of respondents
Antiporda.24
Petitioner filed this petition assailing the decision in CA-G.R. SP No.
93610. Later on, he filed an amended petition impleading respondents
Antiporda and likewise assailing the CA decision in CA-G.R. SP No.
94188. The Court treated this as a supplemental petition.
The main issue for our resolution is whether or not the CA erred in
finding that Judge Daguna had committed grave abuse of discretion in
denying the withdrawal of the Informations for murder against
respondents.
Petitioner argues that, based on the independent assessment of Judge
Daguna, there was probable cause based on the earlier affidavit of
Columna. She considered all the pieces of evidence but did not give
credit to Columnas recantation.
Respondents counter that Judge Daguna committed grave abuse of
discretion by limiting her evaluation and assessment only to evidence
that supported probable cause while completely disregarding
contradicting evidence. They also contend that Columnas extrajudicial
confession was inadmissible against respondents because of the rule on
res inter alios acta.
Page 16 of 149
We find no merit in the petition.

It is settled that, when confronted with a motion to withdraw an
Information (on the ground of lack of probable cause to hold the accused
for trial based on a resolution of the DOJ Secretary), the trial court has
the duty to make an independent assessment of the merits of the
motion.25 It may either agree or disagree with the recommendation of
the Secretary. Reliance alone on the resolution of the Secretary would be
an abdication of the trial courts duty and jurisdiction to determine a
prima facie case.26 The court must itself be convinced that there is indeed
no sufficient evidence against the accused.27
We agree with the CA that Judge Daguna limited herself only to the
following: (1) Columnas affidavit dated March 8, 2004 wherein he
implicated the respondents in the murders; (2) his affirmation of this
affidavit during the April 19, 2004 clarificatory hearing; (3) his letter
dated October 29, 2004 and (4) the May 30, 2005 DOJ resolution
upholding the prosecutors recommendation to file the murder
charges.28
She completely ignored other relevant pieces of evidence such as: (1)
Columnas May 3, 2004 letter to respondent Lloyd Antiporda narrating
the torture he suffered to force him to admit his participation in the
crimes and to implicate the respondents; (2) his May 25, 2004 affidavit
where he stated that neither he nor the respondents had any
involvement in the murders and (3) his testimony during the October
22, 2004 clarificatory hearing wherein he categorically affirmed his May
3, 2004 letter and May 25, 2004 affidavit.
We declared in Jimenez v. Jimenez29 that
[although] there is no general formula or fixed rule for
the determination of probable cause since the same must
be decided in the light of the conditions obtaining in
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Prof. Avena
Page 17 of 149
given situations and its existence depends to a large

degree upon the finding or opinion of the judge
conducting the examination, such a finding should not
disregard the facts before the judge nor run counter
to the clear dictates of reason. The judge or fiscal,
therefore, should not go on with the prosecution in
the hope that some credible evidence might later
turn up during trial for this would be a flagrant
violation of a basic right which the courts are created
to uphold.30 (Emphasis supplied)
Moreover, Judge Daguna failed to consider that Columnas extrajudicial

confession in his March 8, 2004 affidavit was not admissible as evidence
against respondents in view of the rule on res inter alios acta.
Had Judge Daguna reviewed the entire records of the

investigation, she would have seen that, aside from the
pieces of evidence she relied on, there were others which
cast doubt on them. We quote with approval the
reflections of the CA on this point:
on a principle of good faith and mutual convenience, a mans own acts

are binding upon himself, and are evidence against him. So are his
conduct and declarations. Yet it would not only be rightly inconvenient,
but also manifestly unjust, that a man should be bound by the acts of
mere unauthorized strangers; and if a party ought not to be bound by
the acts of strangers, neither ought their acts or conduct be used as
evidence against him.35
The selectivity of respondent RTC Judge for purposes of resolving the

motion to withdraw the informations effectively sidetracked the
guidelines for an independent assessment and evaluation of the merits
of the case. Respondent RTC Judge thus impaired the substantial rights
of the accused. Instead, she should have made a circumspect evaluation
by looking at everything made available to her at that point of the cases.
No less than that was expected and required of her as a judicial officer.
According to Santos v. Orda, Jr., the trial judge may make an independent
assessment of the merits of the case based on the affidavits and counteraffidavits, documents, or evidence appended to the Information; the
records of the public prosecutor which the court may order the latter to
produce before the court; or any evidence already adduced before the
court by the accused at the time the motion is filed by the public
prosecutor.31
Res inter alios acta alteri nocere non debet. The rule on res inter alios acta
provides that the rights of a party cannot be prejudiced by an act,
declaration, or omission of another.32 Consequently, an extrajudicial
confession is binding only on the confessant, is not admissible against
his or her co-accused33 and is considered as hearsay against them.34 The
reason for this rule is that:
An exception to the res inter alios acta rule is an admission made by a

conspirator under Section 30, Rule 130 of the Rules of Court:
Admission by conspirator. The act or declaration of a conspirator
relating to the conspiracy and during its existence, may be given in
evidence against the co-conspirator after the conspiracy is shown by
evidence other than such act or declaration.1avvphi1
This rule prescribes that the act or declaration of the conspirator
relating to the conspiracy and during its existence may be given in
evidence against co-conspirators provided that the conspiracy is shown
by independent evidence aside from the extrajudicial confession.36 Thus,
in order that the admission of a conspirator may be received against his
or her co-conspirators, it is necessary that (a) the conspiracy be first
proved by evidence other than the admission itself (b) the admission
Law __ Evidence
Prof. Avena
relates to the common object and (c) it has been made while the
declarant was engaged in carrying out the conspiracy.37 Otherwise, it
cannot be used against the alleged co-conspirators without violating
their constitutional right to be confronted with the witnesses against
them and to cross-examine them.38
Page 18 of 149
Hence, we hold that the CA committed no reversible error in granting

the petitions for certiorari of respondents.
WHEREFORE, the petition is hereby DENIED.
No pronouncement as to costs.
Here, aside from the extrajudicial confession, which was later on

recanted, no other piece of evidence was presented to prove the alleged
conspiracy. There was no other prosecution evidence, direct or
circumstantial, which the extrajudicial confession could corroborate.
Therefore, the recanted confession of Columna, which was the sole
evidence against respondents, had no probative value and was
inadmissible as evidence against them.
Considering the paucity and inadmissibility of the evidence presented
against the respondents, it would be unfair to hold them for trial. Once it
is ascertained that no probable cause exists to form a sufficient belief as
to the guilt of the accused, they should be relieved from the pain of going
through a full blown court case.39 When, at the outset, the evidence
offered during the preliminary investigation is nothing more than an
uncorroborated extrajudicial confession of an alleged conspirator, the
criminal complaint should not prosper so that the system would be
spared from the unnecessary expense of such useless and expensive
litigation.40 The rule is all the more significant here since respondent
Licerio Antiporda remains in detention for the murder charges pursuant
to the warrant of arrest issued by Judge Daguna.41
Indeed, at that stage of the proceedings, the duty of Judge Daguna was
only to satisfy herself whether there was probable cause or sufficient
ground to hold respondents for trial as co-conspirators. Given that she
had no sufficient basis for a finding of probable cause against
respondents, her orders denying the withdrawal of the Informations for
murder against them were issued with grave abuse of discretion.
SO ORDERED.
RENATO C. CORONA
Associate Justice
Chairperson
WE CONCUR:
CONCHITA CARPIO
MORALES
Associate Justice
PRESBITERO J. VELASCO, JR.

Associate Justice
ANTONIO EDUARDO B.
NACHURA
Associate Justice
TERESITA J. LEONARDO-DE
CASTRO
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of
the Courts Division.
RENATO C. CORONA
Associate Justice
Chairperson
Law __ Evidence
Prof. Avena
CERTIFICATION
protest, Lucio Columna immediately said he could bet

that Atty. Tamargo could not sit and assume as mayor
even if he wins. Later I learned that Atty. Tamargo was
killed last August 15.
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts
Division.
2. Last week, Lucio Columna and I were again together in

the morning in our Barangay and he asked me to drink
gin with him, and we continued drinking until about
noon time. When he had drunk much, he told me
"Awanen ni boss mon nga Tamargon, pinapatay ni Lloyd.
Dakami pay ket di ti pimmatay." (Your boss Tamargo is
already gone, he was ordered killed by Lloyd. In fact, we
were the ones who killed him). He also said "Tamargo ka,
Antiporda ak, no kayat mo saan ka nga agusubli diay
Buguey yen ta awan met ni boss mon, agdakua ta ti
negosyo ditoyen." (You are for Tamargo and I am for
Antiporda; if you want, do not go back to Buguey
anymore since your boss is already gone so that we can
be together in business here). I know he is in the
business of selling "shabu" and marijuana.
REYNATO S. PUNO
Chief Justice
Footnotes
1
Under Rule 45 of the Rules of Court.
Penned by Associate Justice Lucas P. Bersamin (now Supreme

Court Justice) and concurred in by Associate Justices Martin S.
Villarama, Jr. (now Supreme Court Justice) and Monina ArevaloZenarosa of the Seventh Division of the Court of Appeals. Rollo,
pp. 34-60.
2
Id., pp. 63-70.
Id., p. 35. The full text of the September 12, 2003 affidavit read:
1. About a week before August 15, 2003, I was in the
house of Lucio Columna at Battalan, Lasam and there we
drank gin together and stayed with him for several hours
since we are close friends. In the course of our
conversation we talked about the chances of Atty.
Franklin Tamargo to win his election protest in the
election for mayor of Buguey, Cagayan, and I told him
what I heard that Atty. Tamargo was winning in the
Page 19 of 149
3. I decided to come to Manila to tell the family what I

know. I was shown the sketch of the face of suspect and I
can say that the front side closely resembles that of Lucio
Columna, and I am executing this freely and willingly to
attest to its truth in court.
5
Assistant Prosecutor Bernardino R. Camba.
I.S. No. 031-26335. Id., p. 500.
Docketed as Criminal Case Nos. 04-223270 and 04-223271. Id.,

pp. 72, 236-237, 469.
7
Law __ Evidence
Prof. Avena
Id., p. 36.
We reproduce here the full text of the March 8, 2004 affidavit:

Na ako po ay humihingi ng tulong upang ibigay ko
ang buong katunayan ng pangyayari sa
pagkamatay nila ATTY. FRANKLIN TAMARGO at
ng anak na babae nito habang nakasakay sa
kanilang kotse;
Na hindi po ako ang bumaril sa kanila;
Na ang bumaril po ay si ROMULO AWINGAN Aka
MUMOY na taga Aparri, Cagayan at ang nagutos
ay sila MAYOR LLOYD ANTIPORDA ng Buguey,
Cagayan at ang TATAY niya na si EX-MAYOR
LICERIO ANTIPORDA JR. Aka BOY.
Na noong July 20, 2003 habang nagmamaneho
ako ng Multicab biyaheng Aparri-Dugo ay pinara
ako ni MUMOY AWINGAN sa Tallungan Aparri at
sinabi niya kung gusto kong sumama sa grupo
nila. Sabi ko naman ay ihahatid ko lang ang
pasahero ko sa Dugo. Pagkatapos noon ay
binalikan ko sila sa Tallungan. Nang magkausap
na kami ni MUMOY AWINGAN ay sinabi niya na
may PROJECT sila at si ATTY. FRANKLIN
TAMARGO na kalaban ni MAYOR ANTIPORDA sa
BUGUEY. Kung gusto ko raw sumama sa PROJECT
na yun. Nang sumagot ako ng OO ay isusurvey
lang daw nila ang lugar. Sinabi rin niya na
isasama nila ako kay MAYOR ANTIPORDA;
Page 20 of 149
Na noong August 10, 2003 ay inabangan ako nila

MUMOY AWINGAN sa Tallungan, Aparri Cagayan
at sinama nila ako, kasama si RICHARD MECATE
at isa pa na hindi ko kilala pero mamumukhaan
ko ito kung makikita ko ulit. Pumunta na kami sa
bahay na malaki sa POBLACION ng BUGUEY
CAGAYAN. Pagdating [namin] doon ay may
lumabas na lalaki na si MAYOR LLOYD
ANTIPORDA at sinabihan ni MUMOY AWINGAN
sa kanya ng SIR? ITO ANG MAKAKASAMA
NAMIN, tapos sumagot si Mayor Antiporda ng
GOOD at agad tinanong sa akin kung kilala ko si
ATTY. TAMARGO at sinagot ko ng "OO" naman.
Tapos nakita ko na may inabot na sobre kay
MUMOY;
Na noong bumalik na kami sa Aparri Cagayan ay
kumuha ng pera si MUMOY at inabutan ako ng
limang libong piso (P5,000.00) at sabi sa akin ay
ADVANCE LANG yun para makaluwas sa Maynila
agad;
Na noong ding araw na iyon ay nagpunta kami ng
Maynila kasama sina MUMOY AWINGAN,
RICHARD MACATE at yung hindi ko alam ang
pangalan. Bumaba kami bago dumating ng
Terminal ng Florida Bus Line;
Na noong August 14, 2003 ay sumakay kami sa
isang kotse na minaneho ng isang lalaki at
pumunta kami sa Quezon City Jail at kinausap
[namin] si Ex-Mayor Antiporda na nakakulong
doon. Sinabi sa amin ni Ex-Mayor na masamang
tao si Atty. Tamargo dahil ipinakulong siya nito
Law __ Evidence
Prof. Avena
na walang kasalanan at dapat lang siya

maparusahan. Sinabi pa niya dadagdagan ang
bayad pag natapos ang misyon [namin];
Na habang binabaril niya si Atty. Tamargo ay

nagsilbing LOOK OUT lang kami at pagkatapos
noon ay tumakas na kami sakay sa dalawang
motorsiklo at tumuloy na kami sa sakayan ng bus
papuntang Cagayan;
Na ang misyong iyon ay para PATAYIN si ATTY.

TAMARGO;
Na nang dumating na kami sa Cagayan sa Dugo

Camalaniugan ay bumaba na kami at bago kami
naghiwalay ay inabutan ako ulit ni MUMOY ng
limang libong piso;
Nang humigit kumulang alas dos ng hapon petsa

15 ng August 2003 ay isinama kami sa isang
bahay sa Bago Bantay Quezon City. Na sinabi na
bahay ni Mayor Lloyd Antiporda at doon sa
garahe ay may dalawang motorsiklo. Hindi
nagtagal ay umalis din agad kami kasama si
Mumoy Awingan, Richard Mecate at yung isa pa
na sakay ng dalawang motorsiklo, magkaangkas
sina Mumoy at Richard. Ang nagmamaneho ay si
Richard at dalawa naman kami ng lalaki na hindi
ko kilala sa isang motorsiklo. Nagmaneho ang
lalaki na angkas ako. Pagdating [namin] sa
Escolta, Manila ay bumaba si Mumoy at kami
naman ay naghintay sa isang lugar na malapit sa
kinaroroonan nila;
Nang pasado alas singko ng hapon ng petsa ding
iyon ay nakita [namin] na palapit si Atty.
Tamargo sa kanyang kotse kaya kami ay
pumuwesto sa kabilang [kanto];
Nang nasa loob na si Atty. Tamargo at
minamaneho na ang kotse ay nakita kong lumipat
na si Mumoy sa may gawing kaliwa ng kotse kung
saan pumasok si Atty. Tamargo at kanya ng
pinagbabaril.
Page 21 of 149
Na nakikiusap po ako na dito na lamang

makulong (Det. Jail, WPD) para sa aking
proteksyon;
Na ginawa ko po itong pagtatapat ng kusang loob
upang patunayan ang mga naganap na
pangyayari.
Na panunumpaan at pipirmahan ko po iyan
patunay na lahat ng sinabi ko ay [pawang]
katotohanan lamang. (Id., pp. 36-38.)
10
Id., pp. 323, 436.
11
Assistant City Prosecutor Venus D. Marzan.
12
Rollo, p. 472.
13
Id., pp. 98-99.
14
The full text of the May 3, 2004 letter read:

DEAR SIR,
Law __ Evidence
Prof. Avena
SA PAMAMAGITAN NG PAKIUSAP AT PAYO NI

RET. CORONEL SEVERINO PURIGAY NA KASAMA
KO NGAYON NA NAKAKULONG SA MANILA CITY
JAIL SA QUEZON CITY BLVD. STA. CRUZ, MLA.
MINABUTI KONG SUMULAT SA INYO AT
IPARATING ANG AKING PANIG SA KASONG
"DOUBLE MURDER" NA KUNG SAAN KAYO AT
ANG INYONG AMANG SI GINOONG LICERIO
ANTIPORDA AY ISINANGKOT SA PAGPATAY SA
YUMAONG ATTY. FRANKLIN TAMARGO.
AKO AY SI MANUEL COLUMNA JR. [29] TAONG
GULANG DRIVER, AT NAKATIRA SA BRGY.
ZIMINILA CAMALANIUGAN, CAGAYAN.
NAARESTO AKO NOONG FEB. 18, 2004 SA
SAPPING, CAMALANIUGAN SA BISA NG
WARRANT NA GALING SA BRANCH 27 NG
MANILA RTC. SA KASONG DOUBLE MURDER NA
IBINASE SA SINUMPAANG SALAYSAY NI
GERALDO GERON NG LASAM, CAGAYAN NA
SIYANG NAGSUMBONG SA AKIN SA PAMILYA NG
MGA TAMARGO DITO SA MANILA ANG PAGSIRA
SA AKING PAGKATAO AT KINABUKASAN NG
WITNESS NA ITO. SA [PAMAMAGITAN] NG
PAGSISINUNGALING AY DAHIL MARAHIL SA
GALIT O INGGIT SA AKIN. SA BUONG BUHAY KO
AY HINDI PA AKO NAGKAROON NG KASO O
NAKULONG KAHIT MINSAN KUNDI NGAYON
LANG. BAGO KO ITO ISINULAT AY INAROK KONG
MABUTI ANG KONSENSYA AT HINDI KO TALAGA
KAYANG ITULOY ANG MAGSINUNGALING NA
GAYA NG GUSTO NILANG MANGYARI AT ITURO
KAYO BILANG MASTERMIND SA PAGPATAY[.]
Page 22 of 149
AYAW KONG MAGKASALA SA DIYOS SA

PAGTESTIGO SA ISANG KASINUNGALINGAN.
NANIWALA AKO NA MAY DIYOS NA
NAKAKAALAM NG KATOTOHANAN AT BUONG
KATAPATAN KONG SABIHIN SA INYO NA NASA
LASAM, CAGAYAN, AKO NOONG AUGUST 15,
2003 NA SINASABI NILANG ARAW NG
PAGPATAY KAY ATTY. TAMARGO. NI MINSAN AY
HINDI KO PA NAKITA ANG BIKTIMA AT HINDI
KO ALAM [ANG] KANYANG MUKHA HANGGAT
HINDI SINABI SA AKIN NG MGA PULIS NA
DUMAKIP SA AKIN AY HINDI KO ALAM KUNG
BAKIT "DOUBLE MURDER" (KUNG SINO PA ANG
NAMATAY) AT KUNG SAAN NANGYARI NA
SINABI NILANG SA BINONDO RAW NA HINDI KO
PA NARATING NA LUGAR.
MULA NOONG ARAW NA INARESTO AKO AY
MARAMING "TORTURE" ANG DINAANAN KO SA
MGA KAMAY NG MGA TAGA-RSOB NG RECOM NG
CAGAYAN AT SA WPD[.] NARANASAN KONG
MAISUPOT ANG ULO, MABUGBOG, AT
MAKURYENTE KAYA NAPILITAN AKONG
PIRMAHAN ANG MGA PAPELES NA INIHANDA
NILA BUKOD SA PANANAKOT NA I-SALVAGE
DAW (AKO) KUNG HINDI AKO MAKIKOOPERA SA
KANILA.
HUMIHINGI AKO NG UNAWA SA INYO LALO NAT
NALATHALA SA DIARYO ANG PANGALAN NINYO
NA NAKAKASIRA SA [INYO] PERO INTINDIHIN
NYO AKO, NA NAUNA NG NASIRA ANG
Law __ Evidence
Prof. Avena
PANGALAN KO AT KINABUKASAN KO SA
KASONG NAKASAMPA NA LABAN SA AKIN.
Antiporda at nais ko rin pong ibigay ang aking

inihandang salaysay kasama ang Medical
Certificate.
SANA AY MATUTULUNGAN TAYONG LAHAT

PARA MALUTAS ANG KRIMENG NANGYARI[,]
MAPARUSAHAN ANG TOTOONG SALARIN, AT
MAKAMITAN NATIN ANG HUSTISYA. (Id, pp. 3839.)
15
Id., p. 40.
16
Id., pp. 75, 239-240. The letter read:
Sir, hindi ko po masabi kung ano ang gusto kong

sabihin kay Fiscal Marzan dahil noong gabing
iyon ako po ay pinagbantaang papatayin kung
muli kong patunayan ang aking salaysay. Kung
kaya sa pagdinig ng kaso kay Fiscal Marzan kung
saan ay naroon din sina Mayor Antiporda at
kanyang anak ay aking nasabi kung ano ang mga
sinabi sa [akin] ng mga Antiporda.
October 29, 2004
Kaya po sana sir ay mailipat po ako sa ibang

piitan dahil baka ako po ay mapatay kung ako ay
magsabi ng katotohanan upang mabigyan ng
hustisya ang pagkamatay ni Atty. Tamargo.
KAGALANGGALANG NA FISCAL GARCIA:

Ako po ay sumulat sa inyo upang humingi ng
tulong sa aking kalagayan dito sa loob ng Manila
City Jail kung saan ang akin pong buhay ay
nalalagay sa panganib.
Page 23 of 149
17
Id., pp. 320-338.
18
Id., pp. 96-104.
Ito po ay dahil sa aking Sinumpaang Salaysay na

kung saan ang mga Antiporda ang aking itinuro
na nagutos sa pagpaslang kay Atty. Tamargo.
19
Id., p. 102.
20
Id., pp. 236.
Noong nakaraang Biyernes ako po ay ipinatawag

ni Fiscal Marzan upang patunayan kong muli ang
aking naunang salaysay at ako po ay [nakahanda]
upang ang aking salaysay ay muli kong
mapatunayan at gusto ko rin pong isiwalat ang
ginawa sa akin ng ibang tao dito sa loob ng piitan
nang aking pong tanggihan na pumirma sa
inihanda nilang salaysay na pumapabor sa mga
21
Criminal Case Nos. 05-237561 and 05-237562.
22
Rollo, pp. 41, 105-107.
23
Id., p. 71.
24
Id., pp. 286-314.
Law __ Evidence
Prof. Avena
Gandarosa v. Flores, G.R. No. 167910, 17 July 2007, 527 SCRA

776, 793.
25
Summerville General Merchandising & Co., Inc. v. Eugenio, Jr.,

G.R. No. 163741, 7 August 2007, 529 SCRA 274, 282, citing
Santos v. Orda, Jr., G.R. No. 158236, 1 September 2004, 437 SCRA
504, 516..
26
Fuentes v. Sandiganbayan, G.R. No. 139618, 11 July 2006, 494

SCRA 478, 485.
Page 24 of 149
People v. Tena, G.R. No. 100909, 21 October 1992, 215 SCRA

43, 48-49, citing Montoya v. Baun, 44 O.G. 4382, cited in
Francisco, The Revised Rules of Court in the Philippines, Vol. VII,
Part I, 1990 Edition, p. 349.
37
People v. Surigawan, G.R. No. 83215, 15 December 1993, 228

SCRA 458, 465, citing People v. Badilla, 48 Phil. 718, 725 (1926)
and People v. Ferry, 66 Phil. 310 (1938).
38
27
28
Rollo, pp. 72-75.
R.R. Paredes v. Calilung, G.R. No. 156055, 5 March 2007, 517

SCRA 369, 395, citing Salonga v. Cruz Pano, G.R. No. L-59524, 18
February 1985, 134 SCRA 438, 461-462.
29
G.R. No. 158148, 30 June 2005, 462 SCRA 516.
40
30
Id., pp. 528-529
39
Sistoza v. Desierto, 437 Phil. 117, 138 (2002), citing Cabahug v.

People, 426 Phil. 490, 510 (2002).
41
31
Rollo, p. 54.
32
This is expressed in Section 28, Rule 130 of the Rules of Court.

SEC. 28. Admission by third party. The rights of a party
cannot be prejudiced by an act, declaration, or omission
of another, except as hereinafter provided.
33
People v. Vda. De Ramos, 451 Phil. 214 , 224 (2003).
People v. Tizon, Jr., G.R. No. 133228-31, 30 July 2002, 385 SCRA
364, 388, citing People v. Suarez, G.R. No. 111193, 28 January
1997, 267 SCRA 119.
34
35
Supra note 33, pp. 224-225.
36
People v. Morial, 415 Phil. 310, 336 (2001).
Rollo, p. 441.
Law __ Evidence
Prof. Avena
G.R. No. 172357
March 19, 2010
PEOPLE OF THE PHILIPPINES, Appellee,

vs.
MARCELO BUSTAMANTE y ZAPANTA, NEIL BALUYOT y TABISORA,
RICHARD DELOS TRINO y SARCILLA, HERMINIO JOSE y MONSON,
EDWIN SORIANO y DELA CRUZ and ELMER SALVADOR y JAVALE,
Appellants.
DECISION
DEL CASTILLO, J.:
The police authorities are the ones tasked to promote and maintain
peace and order in our country. Thus, it becomes doubly deplorable
when they themselves commit the criminal act. In this case, appellants
insist on their innocence; they deny that they killed the victim Romeleo
Quintos on June 1, 1997 inside the detention cell of the Ninoy Aquino
International Airport (NAIA). But we are not persuaded. We took a
second hard look at the evidence presented and we hold that both the
trial court and the appellate court correctly found that the prosecution
proved beyond reasonable doubt that the appellants are guilty of
murder.
This is an appeal from the July 19, 2005 Decision1 of the Court of Appeals
(CA) in CA-G.R. CR-H.C. No. 00665 which affirmed in toto the March 17,
2000 Decision2 of the Regional Trial Court (RTC) of Pasay City, Branch
109, finding the appellants guilty beyond reasonable doubt of the crime
of murder. Also assailed is the March 6, 2006 Resolution3 of the CA
denying the separate motions for reconsideration filed by the appellants.
Page 25 of 149
On May 22, 1998, two Informations were filed against the herein
appellants, together with Carlito Lingat and Mutalib Abdulajid, charging
them with the crimes of Murder and Arbitrary Detention. The
Informations read:
Crim. Case No. 98-0547 (for Murder):
The undersigned Ombudsman Investigator, Office of the Deputy
Ombudsman for the Military, hereby accuses NEIL BALUYOT, RICHARD
DELOS TRINO, HERMINIO JOSE, EDWIN SORIANO, MARCELO
BUSTAMANTE, CARLITO LINGAT, MUTALIB ABDULAJID, AND ELMER
SALVADOR of the crime of MURDER defined and penalized under Article
248 of the Revised Penal Code, committed as follows:
That in the early morning of June 01, 1997, between 2:00 to 3:00 oclock
[in the morning], or sometime prior or subsequent thereto, in Pasay City,
Philippines, and within the jurisdiction of this Honorable Court, the
accused NEIL BALUYOT, RICHARD DELOS TRINO, HERMINIO JOSE,
EDWIN SORIANO, MARCELO BUSTAMANTE, and CARLITO LINGAT, all
public officers, being then members of the Philippine National Police
(PNP) Force, assigned [at] the Ninoy Aquino International Airport
(NAIA), and accused ELMER SALVADOR and MUTALIB ABDULAJID,
security guards, also assigned at the NAIA, conspiring and confederating
with one another, with intent to kill and taking advantage of their
superior strength, did then and there willfully, unlawfully and
feloniously tie a plastic nylon cord around the neck of one Romeleo A.
Quintos, and hang him at the end portion of the detention cell, which
caused the instantaneous death of said Romeleo A. Quintos to the
damage and prejudice of the heirs of said victim.
CONTRARY TO LAW.4
Factual Antecedents
Criminal Case No. 98-0548 (for Arbitrary Detention)
Law __ Evidence
Prof. Avena
The undersigned Ombudsman Investigator, Office of the Ombudsman for

the Military, hereby accuses EDWIN D. SORIANO, MARCELO Z.
BUSTAMANTE, HERMINIO M. JOSE, CARLITO D. LINGAT and NEIL T.
BALUYOT of the crime of ARBITRARY DETENTION, defined and
penalized under Article 124 of the Revised Penal Code, committed as
follows:
That on or about June 01, 1997, in Pasay City, Metro Manila, Philippines,
and within the jurisdiction of this Honorable Court, the abovenamed
accused, all public officers, being then members of the Philippine
National Police Force assigned at the Ninoy Aquino International
Airport, conspiring and confederating with each other, committing the
offense in relation to their office, and without any legal ground, did then
and there willfully, unlawfully, and feloniously detain and restrain
Romeleo A. Quintos of his personal liberty, without his consent and
against his will since midnight of May 31, 1997 until around 3:15 a.m. of
June 01, 1997 when said Romeleo A. Quintos was found dead inside the
detention cell.
CONTRARY TO LAW.5
Neil Baluyot (Baluyot), Richard Delos Trino (Delos Trino), Herminio Jose
(Jose), Edwin Soriano (Soriano), Marcelo Bustamante (Bustamante),
Carlito Lingat (Lingat) and Elmer Salvador (Salvador), were arraigned on
July 14, 1998 where they all entered a plea of not guilty.6 Mutalib
Abdulajid (Abdulajid) remains at large.
The records show that at around midnight of May 31, 1997, Romeleo
Quintos (Romeleo) and his friend, Ancirell Sales (Ancirell), went to the
NAIA to fetch Rolando Quintos (Rolando), brother of Romeleo, who was
arriving from the United States. At the arrival extension area of the NAIA,
Ancirell alighted from the car driven by Romeleo to check whether
Rolando had already arrived. Upon his return, he was surprised to see
Page 26 of 149
Romeleo arguing with a man in uniform later identified as Soriano who

arrested Romeleo for expired license.
Romeleo vehemently denied the charge causing a heated altercation.
Outraged, Romeleo challenged Soriano to a gun duel. Thinking that
Romeleo was a military man, Soriano called for reinforcement. In a few
minutes, Lingat and Bustamante arrived followed by Jose. They asked
Romeleo to hand over his license but the request went unheeded. Thus,
Jose seized the ignition key of the vehicle and ordered Romeleo to alight
from the vehicle but the latter refused. Thereupon, Soriano, Lingat,
Bustamante and Jose pulled Romeleo out of the vehicle and brought him
to the Intelligence and Investigation Division of the NAIA (IID-NAIA)
supposedly for questioning. At the IID-NAIA, it was decided that
Romeleo be brought to the Pasay General Hospital for examination
where he was found positive for alcoholic breath. Thereafter, Romeleo
was brought back to the IID-NAIA for further investigation.
Romeleo was shoved into a cell already occupied by prosecution witness
Noel Gabornes (Gabornes), who had earlier been arrested for being an
unauthorized porter. Professing his innocence, Romeleo cursed and
shouted at Baluyot, Delos Trino, Jose, Soriano, Bustamante, Lingat,
Salvador and Abdulajid to release him as he was only at the airport to
fetch his brother. Jose ordered him to stop but Romeleo persisted.
Infuriated, Jose entered the cell and kicked the victim hard on the
stomach. Salvador also entered the cell followed by Baluyot while Delos
Trino stayed near the door. Romeleo was still reeling from the blow
delivered by Jose when Baluyot boxed him in the abdomen. Salvador also
punched him at the solar plexus causing the victim to writhe in pain at a
corner of the cubicle. To avoid being hit, Gabornes went outside the cell.
Gasping for breath, Romeleo sought succor from Gabornes but the latter
declined, afraid to get involved. After a while, Gabornes asked Jose if he
could go home but the latter did not answer. Instead, Jose directed
Salvador to transfer Gabornes to an adjacent cell. Thereafter, Gabornes
Law __ Evidence
Prof. Avena
overheard Jose saying "tapusin na natin ito". Intrigued, Gabornes peered

through the iron grill to see what was happening. From his vantage
point, he saw Baluyot handing a piece of grayish plastic cord to Salvador.
Thereafter, he heard Romeleo coughing and gasping for breath as if he
was being strangled. Peering closely, the witness saw Salvador and
Abdulajid twisting the cord with a piece of wood, "garrote" style.
Romeleos hand could be seen trying to reach for the piece of wood in a
backward angle in a vain effort to stop the twisting. After a couple of
minutes, Gabornes saw a body being carried out of the cell. Delos Trino
then approached Gabornes and said: "Kung anong nakita mo, nakita mo
lang. Kung anong narinig mo, narinig mo lang. Sana huwag mo ng ikalat
ito." Fearing for his life, Gabornes promised not to tell anybody about the
incident. Thereafter, he was released.
At about that time, the victims brother, Rolando, had already arrived
from the United States. Informed by Ancirell of the detention of his
brother Romeleo, Rolando set out for home to deposit his luggage but
immediately went back to the airport with Ancirell and a cousin,
Rabadon Gavino (Gavino), to check on Romeleo. At around 3:00 a.m. of
the same day, they arrived at the IID-NAIA office and were met in the
hallway by Bustamante who told them that Romeleo was in the
detention cell. Asking for directions, the group was ushered towards a
dark cell. When the lights were turned on, they were horrified to see the
lifeless body of Romeleo hanging with a cord around his neck with the
other end tied around the iron grills of the cell window.
Rolando, Ancirell and Gavino, along with Soriano and Lingat,
immediately brought the victim to the San Juan De Dios Hospital aboard
a police car. Rolando and his companions carried the victim to the
emergency room. Soriano and Lingat remained in the vehicle but
returned to the NAIA after a while. Romeleo was declared dead on
arrival by the attending physician. Gabornes later learned of the victims
identity through the newspapers.
Page 27 of 149
Baluyot, Delos Trino, Jose, Soriano, Bustamante, and Lingat, were all
members of the Philippine National Police (PNP) assigned with the IIDNAIA, while Salvador and Abdulajid were security guards of the Lanting
Security Agency assigned at NAIA.
Ruling of the Regional Trial Court
After due proceedings, the trial court promulgated its Decision dated
March 17, 2000, the decretal portion reads:
In view of all the foregoing, the Court finds the accused Neil Baluyot y
Tabisora, Richard delos Trino y Sarcilla, Herminio Jose y Mozon, Edwin
Soriano y dela Cruz, Marcelo Bustamante y Zapanta, Carlito Lingat y
Salvador, Elmer Salvador y Javale, and Mutalib Abdulajid guilty beyond
reasonable doubt of MURDER in Criminal Case No. 98-0457. It appearing
on evidence that the accused voluntarily surrendered at the Criminal
Investigation and Detection Group as evidenced by Exh. 21, the Court
credits them with the mitigating circumstances of voluntary surrender
and hereby sentences each of them to RECLUSION PERPETUA and for
each accused to pay the heirs of the victim indemnity in the amount of
P50,000.00.
In Criminal Case No. 98-0548 for Arbitrary Detention, it appearing from
the evidence that the victim Romeleo Quintos was detained at the IID for
three (3) hours and fifteen (15) minutes, the same is punished or
penalized under Art. 124, paragraph 1 of the Revised Penal Code which
is herein below reproduced:
ART. 124. Arbitrary Detention. Any public officer or employee who,
without legal grounds, detains a person, shall suffer:
1. The penalty of arresto mayor in its maximum period to prision
correctional in its minimum period if the detention has not exceeded
three days;
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Prof. Avena
xxxx
Page 28 of 149
on Certiorari but the same was treated as an appeal in the Resolution12

dated January 15, 2007.
hence the case is not within the jurisdiction of this Court.

Issues
The OIC of this Court is hereby ordered to transmit the records of
Criminal Case No. 98-0548 for Arbitrary detention to the Metropolitan
Trial Court.
The Petition for Bail filed by all the accused is hereby considered moot
and academic.
Let an Alias Warrant of arrest be issued in so far as accused Mutalib
Abdulajid is concerned who remains at large.
SO
ORDERED.7
The issues raised are: (1) whether the uncorroborated testimony of the
lone eyewitness, Gabornes, is sufficient to produce a judgment of
conviction; (2) whether conspiracy was proven beyond reasonable
doubt; and (3) whether appellants should be held liable only for
homicide, and not for murder.
Our Ruling
Upon careful consideration of the evidence presented by both the
prosecution and the defense, we are unable to consider the appellants
appeal with favor.
Ruling of the Court of Appeals

The CA affirmed the Decision of the RTC in a Decision dated July 19,
2005, thus:
IN VIEW OF ALL THE FOREGOING, the appealed decision is hereby
AFFIRMED in toto. Costs de officio.
SO ORDERED.8
Aggrieved, appellants filed their respective Motions for Reconsideration.
In the meantime, Lingat died. On March 6, 2006, the CA denied the
motions for reconsideration.9
All the appellants, except Bustamante, filed notices of appeal.
Bustamante filed an Urgent Motion for Leave to Admit Second Motion
for Reconsideration10 but it was denied by the CA in its Resolution11
dated April 28, 2006. Thereafter, Bustamante filed a Petition for Review
The uncorroborated testimony of a single witness, if credible, is enough

to warrant conviction.
We find that the CA did not err in affirming the Decision of the trial court
convicting the appellants of murder based on the testimony of Gabornes,
the lone eyewitness. It is settled jurisprudence that the testimony of a
single witness, if credible, is enough to warrant conviction. Both the trial
court and the CA found Gabornes to be credible and whose testimony is
entitled to full faith. We find no cogent reason to depart from said
findings.
As borne out by the records, Gabornes positively identified and
categorically pointed to appellants as the ones who conspired with one
another to kill Romeleo on June 1, 1997. He narrated the incident in a
clear and convincing manner. He testified on the degree of participation
of each of the accused with regard to the killing of Romeleo inside the
IID-NAIA detention cell in such a manner that only an unbiased
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Prof. Avena
eyewitness could narrate. Gabornes was not shown to have had any ill
motives to testify falsely against the appellants. As correctly observed by
both the trial court and the CA, the fact that Gabornes was previously
arrested for being an unauthorized porter is not enough reason for him
to falsely accuse appellants of a very grave offense.
We also hold that the CA correctly disregarded the affidavit of
recantation of Gabornes dated February 21, 2005. In the said affidavit,
Gabornes denied that he was inside the detention cell of the NAIA on
June 1, 1997. Instead, he claimed that he was under the fly-over near the
NAIA playing a card game. Consequently, he averred that there is no
truth to his testimony given before the trial court pointing to the
appellants as the perpetrators of the crime. We are not persuaded.
Page 29 of 149
should be given credence through a comparison of the original

testimony and the new testimony, applying the general rules of evidence.
x x x 14
As we have already discussed, Gabornes testimony given before the
National Bureau of Investigation (NBI) and the trial court was replete
with details that only a person who witnessed such gruesome crime
could narrate. Even during cross-examination, he remained steadfast in
his account that the appellants were the ones who killed Romeleo. Also,
both the trial court and the appellate court had several opportunities of
taking a hard look at the records of the case considering the motions for
reconsideration filed by the appellants. Both the CA and the RTC found
beyond reasonable doubt that the appellants were indeed the authors of
the crime.
Our ruling in People v. Ballabare13 is instructive:

It is absurd to disregard a testimony that has undergone trial and
scrutiny by the court and the parties simply because an affidavit
withdrawing the testimony is subsequently presented by the defense. In
the first place, any recantation must be tested in a public trial with
sufficient opportunity given to the party adversely affected by it to crossexamine the recanting witness. x x x
In the second place, to accept the new evidence uncritically would be to
make a solemn trial a mockery and place the investigation at the mercy
of unscrupulous witnesses. For even assuming that Tessie Asenita had
made a retraction, this circumstance alone does not require the court to
disregard her original testimony. A retraction does not necessarily
negate an earlier declaration. For this reason, courts look with disfavor
upon retractions because they can easily be obtained from witnesses
usually through intimidation or for monetary considerations. Hence,
when confronted with a situation where a witness recants his testimony,
courts must not automatically exclude the original testimony solely on
the basis of the recantation. They should determine which testimony
The prosecution satisfactorily established that appellants conspired with

each other in killing Romeleo.
We are not persuaded by the contention of the appellants that there was
no conspiracy considering that they were in different areas of the NAIA
premises when the crime took place. As correctly held by the CA:
At bar, appellants claimed that they were either at the NAIA parking lot
or were at the adjacent IID-NAIA office when the crime took place. These
places, however, are but a short distance away from the scene of the
crime and one could travel to and from these points in a little over a few
seconds or minutes of leisure walking, as readily admitted by appellants
in their own version of the event. Verily, the possibility of appellants to
be at the scene of the crime at the time of its commission, is thus not
farfetched.15
Besides, it is not required for conspiracy to exist that there be an
agreement for an appreciable period prior to the occurrence. It is
sufficient that at the time of the commission of the offense, the accused
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Prof. Avena
had the same purpose and were united in its execution. Direct proof of
such agreement is not necessary. It may be deduced from the mode and
manner in which the offense was perpetrated, or inferred from the acts
of the accused which point to a joint purpose and design, concerted
action and community of interest.16
This community of design is present among the appellants as deduced
from their individual acts. The RTC observed thus:
The act of the accused Elmer Salvador, Neil Baluyot y Tabisora, and
Richard Delos Trino y Sarcilla of boxing the victim on the stomach and
the act of accused Herminio Jose who said tapusin na natin ito together
with the act of accused Neil Baluyot of handing a tale or cord to Elmer
Salvador who thereafter twisted the cord which was around the neck of
the victim with a piece of wood with the help of accused Mutalib
Abdulajid who up to the present remained at large, all acts of which
were done in the presence of all the accused namely: Neil Baluyot y
Tabisora, Richard Delos Trino y Sarcilla, Herminio Jose y Mozon, Edwin
Soriano y dela Cruz, Marcelo Bustamante y Zapanta, Carlito Lingat y
Damaso and Elmer Salvador (including the accused who is at large)
clearly show that all accused conspired, confederated and helped one
another in murdering the victim with abuse of superior strength by
strangling and hanging the victim Romeleo Quintos causing him to die of
asphyxia. In conspiracy, the act of one is the act of all.
xxxx
Likewise, the act of accused Carlito Lingat y Damaso and Edwin Soriano
y Dela Cruz of not coming to the hospital to give the medical clerk the
name and circumstances of the victim including the facts surrounding
the victims death is very suspicious indeed and is contrary to the SOP of
officers who bring victims to the hospital. Also the failure of all the
accused to immediately report to the police investigator of Pasay City is
quite unusual. In the same manner the acts of accused Neil Baluyot y
Page 30 of 149
Tabisora, Herminio Jose y Mozon and Richard Delos Trino y Sarcilla of

leaving the IID office and cell which is the scene of the crime and then
going to Bian and to Atty. Augusto Jimenez is quite unusual for persons
who professed innocence.17
Moreover, the doctrine is well settled that conspiracy need not be
proved by direct evidence but may be proven through the series of acts
done by each of the accused in pursuance of their common unlawful
purpose. For collective responsibility among the accused to be
established, it is sufficient that at the time of the aggression, all of them
acted in concert, each doing his part to fulfill their common design to kill
the victim.18
The CA correctly observed that:
A fortiori, appellants should be held liable for the death of Romeleo
Quintos. Their sequential attack, one after another, revealed their
unlawful intent to kill the victim. Herminio Joses utterances of "tapusin
na natin ito" only strengthens the link that binds the acts of the
appellants in their coordinated effort to kill Romeleo. x x x19
The circumstance of abuse of superior strength qualified the killing to
murder.
There is likewise no merit to appellants contention that they should
only be held liable for homicide, and not for murder, because the
qualifying circumstance of abuse of superior strength was not
specifically alleged in the Information.
Contrary to the assertion of the appellants, the Information specifically
alleged that the appellants were
x x x conspiring and confederating with one another, with intent to kill
and taking advantage of their superior strength, did then and there
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Prof. Avena
willfully, unlawfully and feloniously tie a plastic nylon cord around the
neck of one Romeleo A. Quintos, and hang him at the end portion of the
detention cell, which caused the instantaneous death of said Romeleo A.
Quintos to the damage and prejudice of the heirs of said victim.
It has been satisfactorily established that Baluyot, Delos Trino, Jose,
Soriano, Bustamante, and Lingat, were all members of the PNP assigned
with the IID-NAIA, while Salvador and Mutalib were security guards of
the Lanting Security Agency assigned at NAIA. The eight of them acted in
concert and definitely took advantage of their superior strength in
subduing and killing their lone victim who was unarmed. Thus, all the
appellants must be held liable for the crime of murder.
All told, appellants miserably failed to show convincing reasons to
overturn the Decision of both the trial court and the CA. In this case, the
CA ascertained the factual findings of the trial court to be supported by
proof beyond reasonable doubt which led to the conclusion that
appellants acted in unison in killing Romeleo. It is worthy to stress that
findings of fact of the CA, especially if they affirm factual findings of the
trial court, will not be disturbed by this Court, unless these findings are
not supported by evidence.20
The liabilities of Carlito Lingat and Mutalib Abdulajid
It has not escaped our notice that Abdulajid was not arraigned and
remains at large up to this time. However, in the Decision of the trial
court which was affirmed by the CA, Abdulajid was likewise found guilty
as charged. This is erroneous considering that without his having been
arraigned, the trial court did not acquire jurisdiction over his person.
As regards Lingat, his death pending appeal and prior to the finality of
conviction extinguished his criminal and civil liabilities.21 Moreover, the
death of Lingat would result in the dismissal of the criminal case against
him.22
Page 31 of 149
Damages
We note that both the trial court and the CA awarded the heirs of the
victim only the amount of P50,000.00 as civil indemnity. In line with
prevailing jurisprudence,23 we also award the amount of P50,000.00 as
moral damages. Further, we also award the amount of P25,000.00 as
exemplary damages pursuant to our ruling in People v. Angeles24 where
we held that "under Article 2230 of the Civil Code, exemplary damages
may be awarded in criminal cases when the crime was committed with
one or more aggravating circumstances, (in this case, abuse of superior
strength). This is intended to serve as deterrent to serious wrongdoings
and as vindication of undue sufferings and wanton invasion of the rights
of an injured, or as a punishment for those guilty of outrageous conduct.
The imposition of exemplary damages is also justified under Article
2229 of the Civil Code in order to set an example for the public good." In
addition, and in lieu of actual damages, we also award temperate
damages in the amount of P25,000.00.25
Likewise, we note that both the trial court and the CA overlooked the
fact that during the testimony of Clementina Quintos, the mother of the
victim, sufficient evidence was presented to show that the victim before
his untimely death, was gainfully employed in a private company with a
monthly salary of P15,000.00.
Fiscal Barrera:
Q Would you describe Romeleo Quintos prior to his death?
A He was gainfully employed. He is an executive at IPC
(International product Corporation), Makati as operation officer.
xxxx
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Prof. Avena
Q How much was your son Romeleo Quintos receiving as

operation officer at IPC?
A P15,000.00, sir, monthly.
Q Do you have any evidence to show that he earn Five
Thousand pesos [sic] (P15,000.00) a month as project engineer?
A Yes, sir.
Fiscal Barrera:
May I request that the Certification dated January 22, 1999
issued by IPC be marked as Exh. "EEE"; the name appearing
thereat that Romeleo Quintos has been an employee of IPC from
January 8, 1997 up to June 1, 1997 with the position of operation
officer with monthly salary of P15,000.00 x x x be marked as Exh.
"EEE-1" and the signature of a person who issued the
certification be marked as Exh. "EEE-2".26
The formula27 for unearned income is as follows:
Page 32 of 149
(1) the defendant shall be liable for the loss of the earning capacity of the
deceased, and the indemnity shall be paid to the heirs of the latter, such
indemnity shall in every case be assessed and awarded by the court,
unless the deceased on account of permanent physical disability not
caused by the accused, had no earning capacity at the time of his death;
xxxx
Hence, the testimony of the victims mother that Romeleo was earning
P15,000.00 per month is sufficient basis for an award of damages for
loss of earning capacity.1avvphi1
It is well settled that the factors that should be taken into account in
determining the compensable amount of lost earnings are: (1) the
number of years for which the victim would otherwise have lived; (2)
the rate of loss sustained by the heirs of the deceased.
The unearned income of Romeleo is computed as follows:
Unearned
Income
= 2/3 (80 3028) [(P15,000.00 x 12)

(P15,000.00 x 12)]
Life Expectancy x [Gross Annual Income (GAI) less Living

Expenses (50% GAI)]
= 2/3 (50) (P180,000.00 P90,000.00)
Where Life Expectancy= 2/3 x (80 age of the deceased)
= 9,000,000.00/3
Article 2206 of the Civil Code provides:

Art. 2206. That amount of damages for death caused by a crime or quasidelict shall be at least Three Thousand Pesos, even though there may
have been mitigating circumstances. In addition:
= 2/3 (50) (P90,000.00)
= P 3,000,000.00
WHEREFORE, the July 19, 2005 Decision of the Court of Appeals in CAG.R. CR-H.C. No. 00665 is MODIFIED. Appellants Neil Baluyot, Richard
Delos Trino, Herminio Jose, Edwin Soriano, Marcelo Bustamante, and
Elmer Salvador, are hereby found guilty beyond reasonable doubt of the
crime of Murder and are sentenced to suffer the penalty of reclusion
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Prof. Avena
perpetua and to pay the heirs of Romeleo Quintos the amounts of

P50,000.00 as civil indemnity, P50,000.00 as moral damages, P25,000.00
as temperate damages, P25,000.00 as exemplary damages, and
P3,000,000.00 as lost income. In view of the death of Carlito Lingat
pending appeal and prior to the finality of his conviction, Criminal Case
No. 98-0547 is DISMISSED and the appealed Decision is SET ASIDE
insofar as Carlito Lingat is concerned. Insofar as Mutalib Abdulajid is
concerned, the March 17, 2000 Decision of the Regional Trial Court of
Pasay City, Branch 109 in Criminal Case No. 98-0547 is NULLIFIED for
failure of the trial court to acquire jurisdiction over his person.
Consequently, the appealed July 19, 2005 Decision of the Court of
Appeals in CA-G.R. CR-H.C. No. 00665 is likewise SET ASIDE insofar as
Mutalib Abdulajid is concerned.
SO ORDERED.
Page 33 of 149
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Prof. Avena
G.R. Nos. 138874-75
January 31, 2006
PEOPLE OF THE PHILIPPINES, Appellee,

vs.
FRANCISCO JUAN LARRAAGA alias "PACO;" JOSMAN AZNAR;
ROWEN ADLAWAN alias "WESLEY;" ALBERT CAO alias "ALLAN
PAHAK;" ARIEL BALANSAG; DAVIDSON VALIENTE RUSIA alias
TISOY TAGALOG;" JAMES ANTHONY UY alias "WANGWANG;" and
JAMES ANDREW UY alias "MM," Appellants.
RESOLUTION
PER CURIAM:
Most jurisdictions recognize age as a barrier to having full responsibility
over ones action.1 Our legal system, for instance, does not punish a
youth as it would an adult, and it sees youthful misconduct as evidence
of unreasoned or impaired judgment. Thus, in a myriad of cases, we have
applied the privileged mitigating circumstance of minority embodied in
Article 68 of the Revised Penal Code -- the rationale of which is to show
mercy and some extent of leniency in favor of an accused who, by reason
of his age, is presumed to have acted with less discernment. The case at
bar is another instance when the privileged mitigating circumstance of
minority must apply.
For our resolution is the motion for reconsideration2 filed by brothers
James Anthony and James Andrew, both surnamed Uy, praying for the
reduction of the penalties we imposed upon the latter on the ground that
he was a minor at the time the crimes were committed.
A brief review of the pertinent facts is imperative.
On February 3, 2004, we rendered a Decision3 convicting the Uy
brothers, together with Francisco Juan Larraaga, Josman Aznar, Rowen
Page 34 of 149
Adlawan, Alberto Cao and Ariel Balansag of the crimes of (a) special
complex crime of kidnapping and serious illegal detention with homicide
and rape; and (b) simple kidnapping and serious illegal detention. The
dispositive portion of the Decision reads:
WHEREFORE, the Decision of the Regional Trial Court, Branch 7, Cebu
City in Criminal Cases Nos. CBU 45303 and 45304 is AFFIRMED with the
following MODIFICATIONS:
(1) In Criminal Case No. CBU-45303, appellants FRANCISCO
JUAN LARRAAGA alias PACO; JOSMAN AZNAR; ROWEN
ADLAWAN alias WESLEY; ALBERTO CAO alias ALLAN
PAHAK; ARIEL BALANSAG; and JAMES ANDREW UY alias
MM, are found guilty beyond reasonable doubt of the special
complex crime of kidnapping and serious illegal detention with
homicide and rape and are sentenced to suffer the penalty of
DEATH by lethal injection;
(2) In Criminal Case No. CBU-45304, appellants FRANCISCO
JUAN LARRAAGA alias PACO; JOSMAN AZNAR; ROWEN
ADLAWAN alias WESLEY; ALBERTO CAO alias ALLAN
PAHAK; ARIEL BALANSAG; and JAMES ANDREW UY alias
MM, are found guilty beyond reasonable doubt of simple
kidnapping and serious illegal detention and are sentenced to
suffer the penalty of RECLUSION PERPETUA;
(3) In Criminal Case No. CBU-45303, appellant JAMES ANTHONY
UY who was a minor at the time the crime was committed, is
likewise found guilty beyond reasonable doubt of the special
complex crime of kidnapping and serious illegal detention with
homicide and rape and is hereby sentenced to suffer the penalty
of RECLUSION PERPETUA; in Criminal Case No. CBU-45304, he
is declared guilty of simple kidnapping and serious illegal
detention and is sentenced to suffer the penalty of TWELVE (12)
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Prof. Avena
years of prision mayor in its maximum period, as MINIMUM, to

seventeen (17) years of reclusion temporal in its medium period,
as MAXIMUM;
(4) Appellants are ordered to pay jointly and severally the heirs
of Marijoy and Jacqueline, in each case, the amounts of (a)
P100,000.00 as civil indemnity; (b) P25,000.00 as temperate
damages; (c) P150,000.00 as moral damages; and (d)
P100,000.00 as exemplary damages.
Three (3) Justices of the Court maintain their position that RA 7659 is
unconstitutional insofar as it prescribes the death penalty; nevertheless,
they submit to the ruling of the majority that the law is constitutional
and the death penalty can be lawfully imposed in the case at bar.
In accordance with Article 83 of The Revised Penal Code, as amended by
Section 25 of RA No. 7659, upon the finality of this Decision let the
records of this case be forthwith forwarded to the Office of the President
for the possible exercise of Her Excellencys pardoning power.
SO ORDERED.
On March 23, 2004, the Uy brothers filed a motion for reconsideration
anchored on the following grounds:
I
ACCUSED JAMES ANDREW S. UY WAS, LIKE HIS YOUNGER BROTHER
JAMES ANTHONY S. UY, A MINOR AT THE TIME THE OFFENSES AT
BAR ALLEGEDLY HAPPENED LAST JULY 16, 1997;
II
Page 35 of 149
THE IDENTITY OF THE DEAD BODY OF THE WOMAN FOUND IN TANAWAN, CARCAR, CEBU LAST JULY 18, 1997 WAS NEVER
CONCLUSIVELY ESTABLISHED THUS THE NEED FOR ITS
EXHUMATION FOR DNA TESTING.4
The issues raised in the above motion being intertwined with those
raised by Larraaga, Aznar, Adlawan, Cao and Balansag in their
separate motions for reconsideration, we deemed it appropriate to
consolidate the motions. After a painstaking evaluation of every piece
and specie of evidence presented before the trial court in response to the
movants plea for the reversal of their conviction, still we are convinced
that the movants guilt has been proved beyond reasonable doubt. Thus,
in our Resolution dated July 21, 2005, we denied all the motions.
However, left unresolved is the issue of James Andrews minority.
Hence, this disquisition.
In their motion, the Uy brothers claim that James Andrew was only
seventeen (17) years and two hundred sixty two (262) days old at the
time the crimes were committed. To substantiate such claim, he begs
leave and pleads that we admit at this stage of the proceedings his (1)
Certificate of Live Birth issued by the National Statistics Office, and (2)
Baptismal Certificate. In the ultimate, he prays that his penalty be
reduced, as in the case of his brother James Anthony.
Considering that the entry of James Andrews birth in the proffered
Certificate of Live Birth is not legible, we required the Solicitor General
(a) to secure from the City Civil Registrar of Cotobato, as well as the
National Statistics Office, a clear and legible copy of James Certificate of
Live Birth, and thereafter, (b) to file an extensive comment on the Uy
brothers motion, solely on the issue of James Andrews minority.
On November 17, 2005, the Solicitor General submitted his comment.
Attached therewith are clear and legible copies of James Certificate of
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Prof. Avena
Live Birth duly certified by the Office of the City Civil Registrar of
Cotobato and the National Statistics Office. Both documents bear the
entry October 27, 1979 as the date of his birth, thus, showing that he was
indeed only 17 years and 262 days old when the crimes were committed
on July 16, 1997.
Consequently, the Solicitor General recommended that the penalty
imposed on James Andrew be modified as follows:
In Criminal Case No. CBU-45303 for the special complex crime of
kidnapping and serious illegal detention with homicide and rape, the
death penalty should be reduced to reclusion perpetua.
In Criminal Case No. CBU-45304, for the crime of simple kidnapping and
serious illegal detention, the penalty of reclusion perpetua should be
reduced to twelve (12) years of prision mayor in its maximum period, as
minimum, to seventeen (17) years of reclusion temporal in its medium
period, as maximum, similar to the penalty imposed on his brother
James Anthony in Criminal Case No. CBU-45303.
The motion is meritorious.
Article 68 of the Revised Penal Code provides:
ART. 68. Penalty to be imposed upon a person under eighteen years of
age. When the offender is a minor under eighteen years and his case is
one coming under the provisions of the paragraph next to the last of
article 80 of this Code, the following rules shall be observed:
xxx
Thus, the imposable penalty on James Andrew, by reason of his minority,

is one degree lower than the statutory penalty. The penalty for the
special complex crime of kidnapping and serious illegal detention with
homicide and rape, being death, one degree lower therefrom is reclusion
perpetua.5 On the other hand, the penalty for simple kidnapping and
serious illegal detention is reclusion perpetua to death. One degree lower
therefrom is reclusion temporal.6 There being no aggravating and
mitigating circumstance, the penalty to be imposed on James Andrew is
reclusion temporal in its medium period. Applying the Indeterminate
Sentence Law, he should be sentenced to suffer the penalty of twelve
(12) years of prision mayor in its maximum period, as minimum, to
seventeen (17) years of reclusion temporal in its medium period, as
maximum.7
Accordingly, in Criminal Case No. CBU-45303, the penalty of reclusion
perpetua should be imposed upon James Andrew; while in Criminal Case
No. CBU-45304, the imposable penalty upon him is twelve (12) years of
prision mayor in its maximum period, as minimum, to seventeen (17)
years of reclusion temporal in its medium period, as maximum.
WHEREFORE, the motion for reconsideration is hereby GRANTED. Our
Decision dated February 3, 2004 is AFFIRMED with the MODIFICATION
that in Criminal Case No. CBU-45303, James Andrew Uy is sentenced to
suffer the penalty of reclusion perpetua; while in Criminal Case No. CBU45304, the penalty of twelve (12) years of prision mayor in its maximum
period, as MINIMUM, to seventeen (17) years of reclusion temporal in its
medium period, as maximum.
SO ORDERED.
Article 61, par. 1 in relation to Article 71, Scale No. 1 of the Revised
Penal Code.
5
2. Upon a person over fifteen and under eighteen years of age the
penalty next lower than that prescribed by law shall be imposed, but
always in the proper period.
Page 36 of 149
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Prof. Avena
The Indeterminate Sentence Law does not apply to persons

convicted of offenses punished with death penalty or life
imprisonment. (Section 2) While the exception in Section 2 of the
law speak of "life imprisonment," this term has been considered
to also mean reclusion perpetua. (Regalado, Criminal Law
Conspectus, First Edition, at 207).
Page 37 of 149
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G.R. No. 172804
Prof. Avena
January 24, 2011
GONZALO VILLANUEVA, represented by his heirs, Petitioner,

vs.
SPOUSES FROILAN and LEONILA BRANOCO, Respondents.
DECISION
CARPIO, J.:
The Case
This resolves the petition for review1 of the ruling2 of the Court of
Appeals dismissing a suit to recover a realty.
The Facts
Petitioner Gonzalo Villanueva (petitioner), here represented by his
heirs,3 sued respondents, spouses Froilan and Leonila Branoco
(respondents), in the Regional Trial Court of Naval, Biliran (trial court)
to recover a 3,492 square-meter parcel of land in Amambajag, Culaba,
Leyte (Property) and collect damages. Petitioner claimed ownership
over the Property through purchase in July 1971 from Casimiro Vere
(Vere), who, in turn, bought the Property from Alvegia Rodrigo
(Rodrigo) in August 1970. Petitioner declared the Property in his name
for tax purposes soon after acquiring it.
In their Answer, respondents similarly claimed ownership over the
Property through purchase in July 1983 from Eufracia Rodriguez
(Rodriguez) to whom Rodrigo donated the Property in May 1965. The
two-page deed of donation (Deed), signed at the bottom by the parties
and two witnesses, reads in full:
KNOW ALL MEN BY THESE PRESENTS:
Page 38 of 149
That I, ALVEGIA RODRIGO, Filipino, of legal age, widow of

the late Juan Arcillas, a resident of Barrio Bool,
municipality of Culaba, subprovince of Biliran, Leyte del
Norte, Philippines, hereby depose and say:
That as we live[d] together as husband and wife with
Juan Arcillas, we begot children, namely: LUCIO,
VICENTA, SEGUNDINA, and ADELAIDA, all surnamed
ARCILLAS, and by reason of poverty which I suffered
while our children were still young; and because my
husband Juan Arcillas aware as he was with our
destitution separated us [sic] and left for Cebu; and from
then on never cared what happened to his family; and
because of that one EUFRACIA RODRIGUEZ, one of my
nieces who also suffered with our poverty, obedient as
she was to all the works in our house, and because of the
love and affection which I feel [for] her, I have one parcel
of land located at Sitio Amambajag, Culaba, Leyte bearing
Tax Decl. No. 1878 declared in the name of Alvegia
Rodrigo, I give (devise) said land in favor of EUFRACIA
RODRIGUEZ, her heirs, successors, and assigns together
with all the improvements existing thereon, which parcel
of land is more or less described and bounded as follows:
1. Bounded North by Amambajag River; East, Benito
Picao; South, Teofilo Uyvico; and West, by Public land; 2.
It has an area of 3,492 square meters more or less; 3. It is
planted to coconuts now bearing fruits; 4. Having an
assessed value of P240.00; 5. It is now in the possession
of EUFRACIA RODRIGUEZ since May 21, 1962 in the
concept of an owner, but the Deed of Donation or that
ownership be vested on her upon my demise.
Law __ Evidence
Prof. Avena
That I FURTHER DECLARE, and I reiterate that the land

above described, I already devise in favor of EUFRACIA
RODRIGUEZ since May 21, 1962, her heirs, assigns, and
that if the herein Donee predeceases me, the same land
will not be reverted to the Donor, but will be inherited by
the heirs of EUFRACIA RODRIGUEZ;
That I EUFRACIA RODRIGUEZ, hereby accept the land
above described from Inay Alvegia Rodrigo and I am
much grateful to her and praying further for a longer life;
however, I will give one half (1/2) of the produce of the
land to Apoy Alve during her lifetime.4
Respondents entered the Property in 1983 and paid taxes afterwards.
The Ruling of the Trial Court
The trial court ruled for petitioner, declared him owner of the Property,
and ordered respondents to surrender possession to petitioner, and to
pay damages, the value of the Propertys produce since 1982 until
petitioners repossession and the costs.5 The trial court rejected
respondents claim of ownership after treating the Deed as a donation
mortis causa which Rodrigo effectively cancelled by selling the Property
to Vere in 1970.6 Thus, by the time Rodriguez sold the Property to
respondents in 1983, she had no title to transfer.
Respondents appealed to the Court of Appeals (CA), imputing error in
the trial courts interpretation of the Deed as a testamentary disposition
instead of an inter vivos donation, passing title to Rodriguez upon its
execution.
Ruling of the Court of Appeals
Page 39 of 149
The CA granted respondents appeal and set aside the trial courts ruling.
While conceding that the "language of the [Deed is] x x x confusing and
which could admit of possible different interpretations,"7 the CA found
the following factors pivotal to its reading of the Deed as donation inter
vivos: (1) Rodriguez had been in possession of the Property as owner
since 21 May 1962, subject to the delivery of part of the produce to Apoy
Alve; (2) the Deeds consideration was not Rodrigos death but her "love
and affection" for Rodriguez, considering the services the latter
rendered; (3) Rodrigo waived dominion over the Property in case
Rodriguez predeceases her, implying its inclusion in Rodriguezs estate;
and (4) Rodriguez accepted the donation in the Deed itself, an act
necessary to effectuate donations inter vivos, not devises.8 Accordingly,
the CA upheld the sale between Rodriguez and respondents, and,
conversely found the sale between Rodrigo and petitioners
predecessor-in-interest, Vere, void for Rodrigos lack of title.
In this petition, petitioner seeks the reinstatement of the trial courts
ruling. Alternatively, petitioner claims ownership over the Property
through acquisitive prescription, having allegedly occupied it for more
than 10 years.9
Respondents see no reversible error in the CAs ruling and pray for its
affirmance.
The Issue
The threshold question is whether petitioners title over the Property is
superior to respondents. The resolution of this issue rests, in turn, on
whether the contract between the parties predecessors-in-interest,
Rodrigo and Rodriguez, was a donation or a devise. If the former,
respondents hold superior title, having bought the Property from
Rodriguez. If the latter, petitioner prevails, having obtained title from
Rodrigo under a deed of sale the execution of which impliedly revoked
the earlier devise to Rodriguez.
Law __ Evidence
Prof. Avena
The Ruling of the Court

We find respondents title superior, and thus, affirm the CA.
Naked Title Passed from Rodrigo to Rodriguez Under a Perfected
Donation
We examine the juridical nature of the Deed whether it passed title to
Rodriguez upon its execution or is effective only upon Rodrigos death
using principles distilled from relevant jurisprudence. Post-mortem
dispositions typically
(1) Convey no title or ownership to the transferee before the
death of the transferor; or, what amounts to the same thing, that
the transferor should retain the ownership (full or naked) and
control of the property while alive;
(2) That before the [donors] death, the transfer should be
revocable by the transferor at will, ad nutum; but revocability
may be provided for indirectly by means of a reserved power in
the donor to dispose of the properties conveyed;
(3) That the transfer should be void if the transferor should
survive the transferee.10
Further
[4] [T]he specification in a deed of the causes whereby the act
may be revoked by the donor indicates that the donation is inter
vivos, rather than a disposition mortis causa[;]
[5] That the designation of the donation as mortis causa, or a
provision in the deed to the effect that the donation is "to take
effect at the death of the donor" are not controlling criteria; such
Page 40 of 149
statements are to be construed together with the rest of the

instrument, in order to give effect to the real intent of the
transferor[;] [and]
(6) That in case of doubt, the conveyance should be deemed
donation inter vivos rather than mortis causa, in order to avoid
uncertainty as to the ownership of the property subject of the
deed.11
It is immediately apparent that Rodrigo passed naked title to Rodriguez
under a perfected donation inter vivos. First. Rodrigo stipulated that "if
the herein Donee predeceases me, the [Property] will not be reverted to
the Donor, but will be inherited by the heirs of x x x Rodriguez," signaling
the irrevocability of the passage of title to Rodriguezs estate, waiving
Rodrigos right to reclaim title. This transfer of title was perfected the
moment Rodrigo learned of Rodriguezs acceptance of the disposition12
which, being reflected in the Deed, took place on the day of its execution
on 3 May 1965. Rodrigos acceptance of the transfer underscores its
essence as a gift in presenti, not in futuro, as only donations inter vivos
need acceptance by the recipient.13 Indeed, had Rodrigo wished to retain
full title over the Property, she could have easily stipulated, as the
testator did in another case, that "the donor, may transfer, sell, or
encumber to any person or entity the properties here donated x x x"14 or
used words to that effect. Instead, Rodrigo expressly waived title over
the Property in case Rodriguez predeceases her.
In a bid to diffuse the non-reversion stipulations damning effect on his
case, petitioner tries to profit from it, contending it is a fideicommissary
substitution clause.15 Petitioner assumes the fact he is laboring to prove.
The question of the Deeds juridical nature, whether it is a will or a
donation, is the crux of the present controversy. By treating the clause in
question as mandating fideicommissary substitution, a mode of
testamentary disposition by which the first heir instituted is entrusted
with the obligation to preserve and to transmit to a second heir the
Law __ Evidence
Prof. Avena
whole or part of the inheritance,16 petitioner assumes that the Deed is a

will. Neither the Deeds text nor the import of the contested clause
supports petitioners theory.
Second. What Rodrigo reserved for herself was only the beneficial title to
the Property, evident from Rodriguezs undertaking to "give one [half] x
x x of the produce of the land to Apoy Alve during her lifetime."17 Thus,
the Deeds stipulation that "the ownership shall be vested on
[Rodriguez] upon my demise," taking into account the non-reversion
clause, could only refer to Rodrigos beneficial title. We arrived at the
same conclusion in Balaqui v. Dongso18 where, as here, the donor, while
"b[inding] herself to answer to the [donor] and her heirs x x x that none
shall question or disturb [the donees] right," also stipulated that the
donation "does not pass title to [the donee] during my lifetime; but when
I die, [the donee] shall be the true owner" of the donated parcels of land.
In finding the disposition as a gift inter vivos, the Court reasoned:
Taking the deed x x x as a whole, x x x x it is noted that in the same deed
[the donor] guaranteed to [the donee] and her heirs and successors, the
right to said property thus conferred. From the moment [the donor]
guaranteed the right granted by her to [the donee] to the two parcels of
land by virtue of the deed of gift, she surrendered such right; otherwise
there would be no need to guarantee said right. Therefore, when [the
donor] used the words upon which the appellants base their contention
that the gift in question is a donation mortis causa [that the gift "does not
pass title during my lifetime; but when I die, she shall be the true owner
of the two aforementioned parcels"] the donor meant nothing else
than that she reserved of herself the possession and usufruct of said
two parcels of land until her death, at which time the donee would be
able to dispose of them freely.19 (Emphasis supplied)
Indeed, if Rodrigo still retained full ownership over the Property, it was
unnecessary for her to reserve partial usufructuary right over it.20
Page 41 of 149
Third. The existence of consideration other than the donors death, such
as the donors love and affection to the donee and the services the latter
rendered, while also true of devises, nevertheless "corroborates the
express irrevocability of x x x [inter vivos] transfers."21 Thus, the CA
committed no error in giving weight to Rodrigos statement of "love and
affection" for Rodriguez, her niece, as consideration for the gift, to
underscore its finding.
It will not do, therefore, for petitioner to cherry-pick stipulations from
the Deed tending to serve his cause (e.g. "the ownership shall be vested
on [Rodriguez] upon my demise" and "devise"). Dispositions bearing
contradictory stipulations are interpreted wholistically, to give effect to
the donors intent. In no less than seven cases featuring deeds of
donations styled as "mortis causa" dispositions, the Court, after going
over the deeds, eventually considered the transfers inter vivos,22
consistent with the principle that "the designation of the donation as
mortis causa, or a provision in the deed to the effect that the donation is
to take effect at the death of the donor are not controlling criteria [but]
x x x are to be construed together with the rest of the instrument, in
order to give effect to the real intent of the transferor."23 Indeed, doubts
on the nature of dispositions are resolved to favor inter vivos transfers
"to avoid uncertainty as to the ownership of the property subject of the
deed."24
Nor can petitioner capitalize on Rodrigos post-donation transfer of the
Property to Vere as proof of her retention of ownership. If such were the
barometer in interpreting deeds of donation, not only will great legal
uncertainty be visited on gratuitous dispositions, this will give license to
rogue property owners to set at naught perfected transfers of titles,
which, while founded on liberality, is a valid mode of passing ownership.
The interest of settled property dispositions counsels against licensing
such practice.25
Law __ Evidence
Prof. Avena
Accordingly, having irrevocably transferred naked title over the

Property to Rodriguez in 1965, Rodrigo "cannot afterwards revoke the
donation nor dispose of the said property in favor of another."26 Thus,
Rodrigos post-donation sale of the Property vested no title to Vere. As
Veres successor-in-interest, petitioner acquired no better right than
him. On the other hand, respondents bought the Property from
Rodriguez, thus acquiring the latters title which they may invoke against
all adverse claimants, including petitioner.
Petitioner Acquired No Title Over the Property
Alternatively, petitioner grounds his claim of ownership over the
Property through his and Veres combined possession of the Property
for more than ten years, counted from Veres purchase of the Property
from Rodrigo in 1970 until petitioner initiated his suit in the trial court
in February 1986.27 Petitioner anchors his contention on an unfounded
legal assumption. The ten year ordinary prescriptive period to acquire
title through possession of real property in the concept of an owner
requires uninterrupted possession coupled with just title and good
faith.28 There is just title when the adverse claimant came into
possession of the property through one of the modes recognized by law
for the acquisition of ownership or other real rights, but the grantor was
not the owner or could not transmit any right.29 Good faith, on the other
hand, consists in the reasonable belief that the person from whom the
possessor received the thing was the owner thereof, and could transmit
his ownership.30
Although Vere and petitioner arguably had just title having successively
acquired the Property through sale, neither was a good faith possessor.
As Rodrigo herself disclosed in the Deed, Rodriguez already occupied
and possessed the Property "in the concept of an owner" ("como tagiya"31) since 21 May 1962, nearly three years before Rodrigos donation
in 3 May 1965 and seven years before Vere bought the Property from
Rodrigo. This admission against interest binds Rodrigo and all those
Page 42 of 149
tracing title to the Property through her, including Vere and petitioner.
Indeed, petitioners insistent claim that Rodriguez occupied the Property
only in 1982, when she started paying taxes, finds no basis in the
records. In short, when Vere bought the Property from Rodrigo in 1970,
Rodriguez was in possession of the Property, a fact that prevented Vere
from being a buyer in good faith.
Lacking good faith possession, petitioners only other recourse to
maintain his claim of ownership by prescription is to show open,
continuous and adverse possession of the Property for 30 years.32
Undeniably, petitioner is unable to meet this requirement.1avvphil
Ancillary Matters Petitioner Raises Irrelevant
Petitioner brings to the Courts attention facts which, according to him,
support his theory that Rodrigo never passed ownership over the
Property to Rodriguez, namely, that Rodriguez registered the Deed and
paid taxes on the Property only in 1982 and Rodriguez obtained from
Vere in 1981 a waiver of the latters "right of ownership" over the
Property. None of these facts detract from our conclusion that under the
text of the Deed and based on the contemporaneous acts of Rodrigo and
Rodriguez, the latter, already in possession of the Property since 1962 as
Rodrigo admitted, obtained naked title over it upon the Deeds execution
in 1965. Neither registration nor tax payment is required to perfect
donations. On the relevance of the waiver agreement, suffice it to say
that Vere had nothing to waive to Rodriguez, having obtained no title
from Rodrigo. Irrespective of Rodriguezs motivation in obtaining the
waiver, that document, legally a scrap of paper, added nothing to the title
Rodriguez obtained from Rodrigo under the Deed.
WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 6
June 2005 and the Resolution dated 5 May 2006 of the Court of Appeals.
SO ORDERED.
Law __ Evidence
1
Prof. Avena
Under Rule 45 of the 1997 Rules of Civil Procedure.
Page 43 of 149
2. P 5,000.00 in attorneys fees; and
Decision dated 6 June 2005 and Resolution dated 5 May 2006

per by Associate Justice Vicente L. Yap with Associate Justices
Isaias P. Dicdican and Enrico A. Lanzanas, concurring.
5. To pay the costs of the suit.
Citing Article 957(2) of the Civil Code. ("The legacy or

devise shall be without effect:
6
Petitioner, who died while the case was litigated in the Court of
Appeals, is represented by Isidra Kikimen Vda. De Villanueva,
Josephine Kikimen-Haslam, Fermin Kikimen, Victorio Kikimen,
Merlinda Kikimen-Yu, and Fortunila Villanueva.
3
xxxx
(2) If the testator by any title or for any cause alienates
the thing bequeathed or any part thereof, it being
understood that in the latter case the legacy or devise
shall be without effect only with respect to the part thus
alienated.")
Records, p. 18.
In the Decision dated 18 August 2000 penned by Judge Enrique

C. Asis, the dispositive portion of which provides (Rollo, p. 93):
5
WHEREFORE, premises considered, this Court finds in

favor of the plaintiff as against the defendants, hereby
declaring:
1. The plaintiff is the absolute owner of the
property in question;
2. The defendants are directed to surrender
possession of the property in question;
Rollo, p. 55.
Id. at 55-58.
Id. at 37.
Bonsanto v. Court of Appeals, 95 Phil. 481, 487 (1954) (internal

citations omitted).
10
Puig v. Peaflorida, 122 Phil. 665, 671-672 (1965) (internal

citations omitted).
11
3. The defendants shall pay the plaintiff the value

of the harvest or produce of the land from 1982
until the land is actually vacated;
12Article
4. To pay the plaintiff:
13Alejandro
1. P 2,500.00 in litigation expenses; and
734, Civil Code ("The donation is perfected from the

moment the donor knows of the acceptance by the donee.")
v. Geraldez, 168 Phil. 404 (1977); Concepcion v.
Concepcion, 91 Phil. 823 (1952); Laureta v. Mata, 44 Phil. 668
(1923).
Law __ Evidence
Prof. Avena
14Puig
v. Peaflorida, supra note 11 at 674 ("[l]a DONANTE, podra

enajenar, vender, traspasar o hipotecar a cuallesquier personas o
entidades los bienes aqui donados x x x x").
15
Rollo, p. 43.
16
Civil Code, Article 863.
Page 44 of 149
25Thus,
in Del Rosario v. Ferrer, G.R. No. 187056, 20 September

2010, we annulled a post-donation assignment of rights over the
donated property for lack of the assignors title.
Concepcion v. Concepcion, 91 Phil. 823, 829 (1952), quoting
Manresa.
26
27Rollo,
17The
records do not disclose the identity of "Apoy Alve" but this

likely refers to the donor Alvegia Rodrigo, Rodriguezs aunt.
18
53 Phil. 673 (1929).
19
Id. at 676.
20See
Bonsanto v. Court of Appeals, 95 Phil. 481, 487 (1954),

where, in interpreting an identical reservation, the Court
observed the "donors reserv[ation] for himself, during his
lifetime, the owners share of the fruits or produce" is
"unnecessary if the ownership of the donated property remained
with the donor."
21
pp. 48-49. Petitioner crafted this theory for the first time
in the Court of Appeals, having limited his case in the trial court
to the single cause of action of ownership based on his purchase
of the Property from Vere. Another alternative argument
petitioner raises concerns the alleged inofficious nature of the
donation (id. at 43). Aside from the fact that petitioner never
raised this contention below, he is not the proper party to raise
it, not being one of the heirs allegedly prejudiced by the transfer.
28Civil
Code, Article 1117 ("Acquisitive prescription of dominion

and other real rights may be ordinary or extraordinary.
Ordinary acquisitive prescription requires
possession of things in good faith and with just title
for the time fixed by law.") (emphasis supplied).
Id. at 489.
Rosario v. Ferrer, G.R. No. 187056, 20 September 2010; Puig

v. Peaflorida, 122 Phil. 665 (1965); Bonsanto v. Court of Appeals,
95 Phil. 481 (1954); Concepcion v. Concepcion, 91 Phil. 823, 829
(1952); Sambaan v. Villanueva, 71 Phil. 303 (1941); Balaqui v.
Dongso, 53 Phil. 673 (1929); Laureta v. Mata, 44 Phil. 668 (1923).
29
30
31
Records, p. 129.
22Del
32Civil
23
Puig v. Peaflorida, supra note 11 at 671-672.
24
Id. at 672.
Code, Article 1137 ("Ownership and other real rights over

immovables also prescribe through uninterrupted adverse
possession thereof for thirty years, without need of title or of
good faith.")
Law __ Evidence
Prof. Avena
14. HEARSAY
G.R. No. 188288
January 16, 2012
SPOUSES FERNANDO and LOURDES VILORIA, Petitioners,

vs.
CONTINENTAL AIRLINES, INC.,
DECISION
REYES, J.:
This is a petition for review under Rule 45 of the Rules of Court from the
January 30, 2009 Decision1 of the Special Thirteenth Division of the
Court of Appeals (CA) in CA-G.R. CV No. 88586 entitled "Spouses
Fernando and Lourdes Viloria v. Continental Airlines, Inc.," the dispositive
portion of which states:
WHEREFORE, the Decision of the Regional Trial Court, Branch 74, dated
03 April 2006, awarding US$800.00 or its peso equivalent at the time of
payment, plus legal rate of interest from 21 July 1997 until fully paid,
[P]100,000.00 as moral damages, [P]50,000.00 as exemplary damages,
[P]40,000.00 as attorneys fees and costs of suit to plaintiffs-appellees is
hereby REVERSED and SET ASIDE.
Defendant-appellants counterclaim is DENIED.
Costs against plaintiffs-appellees.
SO ORDERED.2
On April 3, 2006, the Regional Trial Court of Antipolo City, Branch 74
(RTC) rendered a Decision, giving due course to the complaint for sum of
14. HEARSAY
Page 45 of 149
money and damages filed by petitioners Fernando Viloria (Fernando)

and Lourdes Viloria (Lourdes), collectively called Spouses Viloria,
against respondent Continental Airlines, Inc. (CAI). As culled from the
records, below are the facts giving rise to such complaint.
On or about July 21, 1997 and while in the United States, Fernando
purchased for himself and his wife, Lourdes, two (2) round trip airline
tickets from San Diego, California to Newark, New Jersey on board
Continental Airlines. Fernando purchased the tickets at US$400.00 each
from a travel agency called "Holiday Travel" and was attended to by a
certain Margaret Mager (Mager). According to Spouses Viloria, Fernando
agreed to buy the said tickets after Mager informed them that there were
no available seats at Amtrak, an intercity passenger train service
provider in the United States. Per the tickets, Spouses Viloria were
scheduled to leave for Newark on August 13, 1997 and return to San
Diego on August 21, 1997.
Subsequently, Fernando requested Mager to reschedule their flight to
Newark to an earlier date or August 6, 1997. Mager informed him that
flights to Newark via Continental Airlines were already fully booked and
offered the alternative of a round trip flight via Frontier Air. Since flying
with Frontier Air called for a higher fare of US$526.00 per passenger and
would mean traveling by night, Fernando opted to request for a refund.
Mager, however, denied his request as the subject tickets are nonrefundable and the only option that Continental Airlines can offer is the
re-issuance of new tickets within one (1) year from the date the subject
tickets were issued. Fernando decided to reserve two (2) seats with
Frontier Air.
As he was having second thoughts on traveling via Frontier Air,
Fernando went to the Greyhound Station where he saw an Amtrak
station nearby. Fernando made inquiries and was told that there are
seats available and he can travel on Amtrak anytime and any day he
pleased. Fernando then purchased two (2) tickets for Washington, D.C.
Law __ Evidence
Prof. Avena
From Amtrak, Fernando went to Holiday Travel and confronted Mager

with the Amtrak tickets, telling her that she had misled them into buying
the Continental Airlines tickets by misrepresenting that Amtrak was
already fully booked. Fernando reiterated his demand for a refund but
Mager was firm in her position that the subject tickets are nonrefundable.
Upon returning to the Philippines, Fernando sent a letter to CAI on
February 11, 1998, demanding a refund and alleging that Mager had
deluded them into purchasing the subject tickets.3
In a letter dated February 24, 1998, Continental Micronesia informed
Fernando that his complaint had been referred to the Customer Refund
Services of Continental Airlines at Houston, Texas.4
In a letter dated March 24, 1998, Continental Micronesia denied
Fernandos request for a refund and advised him that he may take the
subject tickets to any Continental ticketing location for the re-issuance of
new tickets within two (2) years from the date they were issued.
Continental Micronesia informed Fernando that the subject tickets may
be used as a form of payment for the purchase of another Continental
ticket, albeit with a re-issuance fee.5
On June 17, 1999, Fernando went to Continentals ticketing office at
Ayala Avenue, Makati City to have the subject tickets replaced by a single
round trip ticket to Los Angeles, California under his name. Therein,
Fernando was informed that Lourdes ticket was non-transferable, thus,
cannot be used for the purchase of a ticket in his favor. He was also
informed that a round trip ticket to Los Angeles was US$1,867.40 so he
would have to pay what will not be covered by the value of his San Diego
to Newark round trip ticket.
In a letter dated June 21, 1999, Fernando demanded for the refund of the
subject tickets as he no longer wished to have them replaced. In addition
14. HEARSAY
Page 46 of 149
to the dubious circumstances under which the subject tickets were

issued, Fernando claimed that CAIs act of charging him with
US$1,867.40 for a round trip ticket to Los Angeles, which other airlines
priced at US$856.00, and refusal to allow him to use Lourdes ticket,
breached its undertaking under its March 24, 1998 letter.6
On September 8, 2000, Spouses Viloria filed a complaint against CAI,
praying that CAI be ordered to refund the money they used in the
purchase of the subject tickets with legal interest from July 21, 1997 and
to pay P1,000,000.00 as moral damages, P500,000.00 as exemplary
damages and P250,000.00 as attorneys fees.7
CAI interposed the following defenses: (a) Spouses Viloria have no right
to ask for a refund as the subject tickets are non-refundable; (b)
Fernando cannot insist on using the ticket in Lourdes name for the
purchase of a round trip ticket to Los Angeles since the same is nontransferable; (c) as Mager is not a CAI employee, CAI is not liable for any
of her acts; (d) CAI, its employees and agents did not act in bad faith as to
entitle Spouses Viloria to moral and exemplary damages and attorneys
fees. CAI also invoked the following clause printed on the subject tickets:
3. To the extent not in conflict with the foregoing carriage and other
services performed by each carrier are subject to: (i) provisions
contained in this ticket, (ii) applicable tariffs, (iii) carriers conditions of
carriage and related regulations which are made part hereof (and are
available on application at the offices of carrier), except in
transportation between a place in the United States or Canada and any
place outside thereof to which tariffs in force in those countries apply.8
According to CAI, one of the conditions attached to their contract of
carriage is the non-transferability and non-refundability of the subject
tickets.
The RTCs Ruling
Law __ Evidence
Prof. Avena
14. HEARSAY
Page 47 of 149
Following a full-blown trial, the RTC rendered its April 3, 2006 Decision,
holding that Spouses Viloria are entitled to a refund in view of Magers
misrepresentation in obtaining their consent in the purchase of the
subject tickets.9 The relevant portion of the April 3, 2006 Decision states:
Art. 1869. Agency may be express, or implied from the acts of the
principal, from his silence or lack of action, or his failure to repudiate the
agency, knowing that another person is acting on his behalf without
authority.
Continental Airlines agent Ms. Mager was in bad faith when she was less
candid and diligent in presenting to plaintiffs spouses their booking
options. Plaintiff Fernando clearly wanted to travel via AMTRAK, but
defendants agent misled him into purchasing Continental Airlines
tickets instead on the fraudulent misrepresentation that Amtrak was
fully booked. In fact, defendant Airline did not specifically denied (sic)
this allegation.
Agency may be oral, unless the law requires a specific form.
Plainly, plaintiffs spouses, particularly plaintiff Fernando, were tricked

into buying Continental Airline tickets on Ms. Magers misleading
misrepresentations. Continental Airlines agent Ms. Mager further relied
on and exploited plaintiff Fernandos need and told him that they must
book a flight immediately or risk not being able to travel at all on the
couples preferred date. Unfortunately, plaintiffs spouses fell prey to the
airlines and its agents unethical tactics for baiting trusting
customers."10
As its very name implies, a travel agency binds itself to render some
service or to do something in representation or on behalf of another,
with the consent or authority of the latter. This court takes judicial
notice of the common services rendered by travel agencies that
represent themselves as such, specifically the reservation and booking of
local and foreign tours as well as the issuance of airline tickets for a
commission or fee.
The services rendered by Ms. Mager of Holiday Travel agency to the
plaintiff spouses on July 21, 1997 were no different from those offered in
any other travel agency. Defendant airline impliedly if not expressly
acknowledged its principal-agent relationship with Ms. Mager by its
offer in the letter dated March 24, 1998 an obvious attempt to assuage
plaintiffs spouses hurt feelings.11
Citing Articles 1868 and 1869 of the Civil Code, the RTC ruled that Mager
is CAIs agent, hence, bound by her bad faith and misrepresentation. As
far as the RTC is concerned, there is no issue as to whether Mager was
CAIs agent in view of CAIs implied recognition of her status as such in
its March 24, 1998 letter.
Furthermore, the RTC ruled that CAI acted in bad faith in reneging on its
undertaking to replace the subject tickets within two (2) years from
their date of issue when it charged Fernando with the amount of
US$1,867.40 for a round trip ticket to Los Angeles and when it refused to
allow Fernando to use Lourdes ticket. Specifically:
The act of a travel agent or agency being involved here, the following are
the pertinent New Civil Code provisions on agency:
Tickets may be reissued for up to two years from the original date of
issue. When defendant airline still charged plaintiffs spouses
US$1,867.40 or more than double the then going rate of US$856.00 for
the unused tickets when the same were presented within two (2) years
from date of issue, defendant airline exhibited callous treatment of
passengers.12
Art. 1868. By the contract of agency a person binds himself to render

some service or to do something in representation or on behalf of
another, with the consent or authority of the latter.
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Prof. Avena
The Appellate Courts Ruling
On appeal, the CA reversed the RTCs April 3, 2006 Decision, holding that
CAI cannot be held liable for Magers act in the absence of any proof that
a principal-agent relationship existed between CAI and Holiday Travel.
According to the CA, Spouses Viloria, who have the burden of proof to
establish the fact of agency, failed to present evidence demonstrating
that Holiday Travel is CAIs agent. Furthermore, contrary to Spouses
Vilorias claim, the contractual relationship between Holiday Travel and
CAI is not an agency but that of a sale.
Plaintiffs-appellees assert that Mager was a sub-agent of Holiday Travel
who was in turn a ticketing agent of Holiday Travel who was in turn a
ticketing agent of Continental Airlines. Proceeding from this premise,
they contend that Continental Airlines should be held liable for the acts
of Mager. The trial court held the same view.
We do not agree. By the contract of agency, a person binds him/herself
to render some service or to do something in representation or on behalf
of another, with the consent or authority of the latter. The elements of
agency are: (1) consent, express or implied, of the parties to establish
the relationship; (2) the object is the execution of a juridical act in
relation to a third person; (3) the agent acts as a representative and not
for him/herself; and (4) the agent acts within the scope of his/her
authority. As the basis of agency is representation, there must be, on the
part of the principal, an actual intention to appoint, an intention
naturally inferable from the principals words or actions. In the same
manner, there must be an intention on the part of the agent to accept the
appointment and act upon it. Absent such mutual intent, there is
generally no agency. It is likewise a settled rule that persons dealing
with an assumed agent are bound at their peril, if they would hold the
principal liable, to ascertain not only the fact of agency but also the
nature and extent of authority, and in case either is controverted, the
burden of proof is upon them to establish it. Agency is never presumed,
14. HEARSAY
Page 48 of 149
neither is it created by the mere use of the word in a trade or business

name. We have perused the evidence and documents so far presented.
We find nothing except bare allegations of plaintiffs-appellees that
Mager/Holiday Travel was acting in behalf of Continental Airlines. From
all sides of legal prism, the transaction in issue was simply a contract of
sale, wherein Holiday Travel buys airline tickets from Continental
Airlines and then, through its employees, Mager included, sells it at a
premium to clients.13
The CA also ruled that refund is not available to Spouses Viloria as the
word "non-refundable" was clearly printed on the face of the subject
tickets, which constitute their contract with CAI. Therefore, the grant of
their prayer for a refund would violate the proscription against
impairment of contracts.
Finally, the CA held that CAI did not act in bad faith when they charged
Spouses Viloria with the higher amount of US$1,867.40 for a round trip
ticket to Los Angeles. According to the CA, there is no compulsion for CAI
to charge the lower amount of US$856.00, which Spouses Viloria claim
to be the fee charged by other airlines. The matter of fixing the prices for
its services is CAIs prerogative, which Spouses Viloria cannot intervene.
In particular:
It is within the respective rights of persons owning and/or operating
business entities to peg the premium of the services and items which
they provide at a price which they deem fit, no matter how expensive or
exhorbitant said price may seem vis--vis those of the competing
companies. The Spouses Viloria may not intervene with the business
judgment of Continental Airlines.14
The Petitioners Case
In this Petition, this Court is being asked to review the findings and
conclusions of the CA, as the latters reversal of the RTCs April 3, 2006
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Prof. Avena
Decision allegedly lacks factual and legal bases. Spouses Viloria claim
that CAI acted in bad faith when it required them to pay a higher amount
for a round trip ticket to Los Angeles considering CAIs undertaking to
re-issue new tickets to them within the period stated in their March 24,
1998 letter. CAI likewise acted in bad faith when it disallowed Fernando
to use Lourdes ticket to purchase a round trip to Los Angeles given that
there is nothing in Lourdes ticket indicating that it is non-transferable.
As a common carrier, it is CAIs duty to inform its passengers of the
terms and conditions of their contract and passengers cannot be bound
by such terms and conditions which they are not made aware of. Also,
the subject contract of carriage is a contract of adhesion; therefore, any
ambiguities should be construed against CAI. Notably, the petitioners are
no longer questioning the validity of the subject contracts and limited its
claim for a refund on CAIs alleged breach of its undertaking in its March
24, 1998 letter.
The Respondents Case
In its Comment, CAI claimed that Spouses Vilorias allegation of bad faith
is negated by its willingness to issue new tickets to them and to credit
the value of the subject tickets against the value of the new ticket
Fernando requested. CAI argued that Spouses Vilorias sole basis to
claim that the price at which CAI was willing to issue the new tickets is
unconscionable is a piece of hearsay evidence an advertisement
appearing on a newspaper stating that airfares from Manila to Los
Angeles or San Francisco cost US$818.00.15 Also, the advertisement
pertains to airfares in September 2000 and not to airfares prevailing in
June 1999, the time when Fernando asked CAI to apply the value of the
subject tickets for the purchase of a new one.16 CAI likewise argued that
it did not undertake to protect Spouses Viloria from any changes or
fluctuations in the prices of airline tickets and its only obligation was to
apply the value of the subject tickets to the purchase of the newly issued
tickets.
14. HEARSAY
Page 49 of 149
With respect to Spouses Vilorias claim that they are not aware of CAIs
restrictions on the subject tickets and that the terms and conditions that
are printed on them are ambiguous, CAI denies any ambiguity and
alleged that its representative informed Fernando that the subject
tickets are non-transferable when he applied for the issuance of a new
ticket. On the other hand, the word "non-refundable" clearly appears on
the face of the subject tickets.
CAI also denies that it is bound by the acts of Holiday Travel and Mager
and that no principal-agency relationship exists between them. As an
independent contractor, Holiday Travel was without capacity to bind
CAI.
Issues
To determine the propriety of disturbing the CAs January 30, 2009
Decision and whether Spouses Viloria have the right to the reliefs they
prayed for, this Court deems it necessary to resolve the following issues:
a. Does a principal-agent relationship exist between CAI and
Holiday Travel?
b. Assuming that an agency relationship exists between CAI and
Holiday Travel, is CAI bound by the acts of Holiday Travels
agents and employees such as Mager?
c. Assuming that CAI is bound by the acts of Holiday Travels
agents and employees, can the representation of Mager as to
unavailability of seats at Amtrak be considered fraudulent as to
vitiate the consent of Spouse Viloria in the purchase of the
subject tickets?
d. Is CAI justified in insisting that the subject tickets are nontransferable and non-refundable?
Law __ Evidence
Prof. Avena
e. Is CAI justified in pegging a different price for the round trip

ticket to Los Angeles requested by Fernando?
f. Alternatively, did CAI act in bad faith or renege its obligation to
Spouses Viloria to apply the value of the subject tickets in the
purchase of new ones when it refused to allow Fernando to use
Lourdes ticket and in charging a higher price for a round trip
ticket to Los Angeles?
14. HEARSAY
Page 50 of 149
agents. Furthermore, in erroneously characterizing the

contractual relationship between CAI and Holiday Travel
as a contract of sale, the CA failed to apply the
fundamental civil law principles governing agency and
differentiating it from sale.
In Rallos v. Felix Go Chan & Sons Realty Corporation,18 this
Court explained the nature of an agency and spelled out
the essential elements thereof:
This Courts Ruling

I. A principal-agent relationship exists between CAI and Holiday
Travel.
With respect to the first issue, which is a question of fact
that would require this Court to review and re-examine
the evidence presented by the parties below, this Court
takes exception to the general rule that the CAs findings
of fact are conclusive upon Us and our jurisdiction is
limited to the review of questions of law. It is well-settled
to the point of being axiomatic that this Court is
authorized to resolve questions of fact if confronted with
contrasting factual findings of the trial court and
appellate court and if the findings of the CA are
contradicted by the evidence on record.17
According to the CA, agency is never presumed and that
he who alleges that it exists has the burden of proof.
Spouses Viloria, on whose shoulders such burden rests,
presented evidence that fell short of indubitably
demonstrating the existence of such agency.
We disagree. The CA failed to consider undisputed facts,
discrediting CAIs denial that Holiday Travel is one of its
Out of the above given principles, sprung the creation

and acceptance of the relationship of agency whereby one
party, called the principal (mandante), authorizes
another, called the agent (mandatario), to act for and in
his behalf in transactions with third persons. The
essential elements of agency are: (1) there is consent,
express or implied of the parties to establish the
relationship; (2) the object is the execution of a juridical
act in relation to a third person; (3) the agent acts as a
representative and not for himself, and (4) the agent acts
within the scope of his authority.1avvphi1
Agency is basically personal, representative, and
derivative in nature. The authority of the agent to act
emanates from the powers granted to him by his
principal; his act is the act of the principal if done within
the scope of the authority. Qui facit per alium facit se. "He
who acts through another acts himself."19
Contrary to the findings of the CA, all the elements of an
agency exist in this case. The first and second elements
are present as CAI does not deny that it concluded an
agreement with Holiday Travel, whereby Holiday Travel
would enter into contracts of carriage with third persons
Law __ Evidence
Prof. Avena
on CAIs behalf. The third element is also present as it is

undisputed that Holiday Travel merely acted in a
representative capacity and it is CAI and not Holiday
Travel who is bound by the contracts of carriage entered
into by Holiday Travel on its behalf. The fourth element is
also present considering that CAI has not made any
allegation that Holiday Travel exceeded the authority
that was granted to it. In fact, CAI consistently maintains
the validity of the contracts of carriage that Holiday
Travel executed with Spouses Viloria and that Mager was
not guilty of any fraudulent misrepresentation. That CAI
admits the authority of Holiday Travel to enter into
contracts of carriage on its behalf is easily discernible
from its February 24, 1998 and March 24, 1998 letters,
where it impliedly recognized the validity of the
contracts entered into by Holiday Travel with Spouses
Viloria. When Fernando informed CAI that it was Holiday
Travel who issued to them the subject tickets, CAI did not
deny that Holiday Travel is its authorized agent.
Prior to Spouses Vilorias filing of a complaint against it,
CAI never refuted that it gave Holiday Travel the power
and authority to conclude contracts of carriage on its
behalf. As clearly extant from the records, CAI recognized
the validity of the contracts of carriage that Holiday
Travel entered into with Spouses Viloria and considered
itself bound with Spouses Viloria by the terms and
conditions thereof; and this constitutes an unequivocal
testament to Holiday Travels authority to act as its agent.
This Court cannot therefore allow CAI to take an
altogether different position and deny that Holiday
Travel is its agent without condoning or giving
imprimatur to whatever damage or prejudice that may
result from such denial or retraction to Spouses Viloria,
14. HEARSAY
Page 51 of 149
who relied on good faith on CAIs acts in recognition of

Holiday Travels authority. Estoppel is primarily based
on the doctrine of good faith and the avoidance of harm
that will befall an innocent party due to its injurious
reliance, the failure to apply it in this case would result in
gross travesty of justice.20 Estoppel bars CAI from making
such denial.
As categorically provided under Article 1869 of the Civil
Code, "[a]gency may be express, or implied from the acts
of the principal, from his silence or lack of action, or his
failure to repudiate the agency, knowing that another
person is acting on his behalf without authority."
Considering that the fundamental hallmarks of an agency
are present, this Court finds it rather peculiar that the CA
had branded the contractual relationship between CAI
and Holiday Travel as one of sale. The distinctions
between a sale and an agency are not difficult to discern
and this Court, as early as 1970, had already formulated
the guidelines that would aid in differentiating the two
(2) contracts. In Commissioner of Internal Revenue v.
Constantino,21 this Court extrapolated that the primordial
differentiating consideration between the two (2)
contracts is the transfer of ownership or title over the
property subject of the contract. In an agency, the
principal retains ownership and control over the
property and the agent merely acts on the principals
behalf and under his instructions in furtherance of the
objectives for which the agency was established. On the
other hand, the contract is clearly a sale if the parties
intended that the delivery of the property will effect a
relinquishment of title, control and ownership in such a
Law __ Evidence
Prof. Avena
way that the recipient may do with the property as he

pleases.
Since the company retained ownership of the goods, even
as it delivered possession unto the dealer for resale to
customers, the price and terms of which were subject to
the company's control, the relationship between the
company and the dealer is one of agency, tested under
the following criterion:
"The difficulty in distinguishing between contracts of sale
and the creation of an agency to sell has led to the
establishment of rules by the application of which this
difficulty may be solved. The decisions say the transfer of
title or agreement to transfer it for a price paid or
promised is the essence of sale. If such transfer puts the
transferee in the attitude or position of an owner and
makes him liable to the transferor as a debtor for the
agreed price, and not merely as an agent who must
account for the proceeds of a resale, the transaction is a
sale; while the essence of an agency to sell is the delivery
to an agent, not as his property, but as the property of the
principal, who remains the owner and has the right to
control sales, fix the price, and terms, demand and
receive the proceeds less the agent's commission upon
sales made. 1 Mechem on Sales, Sec. 43; 1 Mechem on
Agency, Sec. 48; Williston on Sales, 1; Tiedeman on Sales,
1." (Salisbury v. Brooks, 94 SE 117, 118-119)22
As to how the CA have arrived at the conclusion that the
contract between CAI and Holiday Travel is a sale is
certainly confounding, considering that CAI is the one
bound by the contracts of carriage embodied by the
tickets being sold by Holiday Travel on its behalf. It is
14. HEARSAY
Page 52 of 149
undisputed that CAI and not Holiday Travel who is the

party to the contracts of carriage executed by Holiday
Travel with third persons who desire to travel via
Continental Airlines, and this conclusively indicates the
existence of a principal-agent relationship. That the
principal is bound by all the obligations contracted by the
agent within the scope of the authority granted to him is
clearly provided under Article 1910 of the Civil Code and
this constitutes the very notion of agency.
II. In actions based on quasi-delict, a principal can only be held
liable for the tort committed by its agents employees if it has been
established by preponderance of evidence that the principal was
also at fault or negligent or that the principal exercise control and
supervision over them.
Considering that Holiday Travel is CAIs agent, does it
necessarily follow that CAI is liable for the fault or
negligence of Holiday Travels employees? Citing China
Air Lines, Ltd. v. Court of Appeals, et al.,23 CAI argues that it
cannot be held liable for the actions of the employee of its
ticketing agent in the absence of an employer-employee
relationship.
An examination of this Courts pronouncements in China
Air Lines will reveal that an airline company is not
completely exonerated from any liability for the tort
committed by its agents employees. A prior
determination of the nature of the passengers cause of
action is necessary. If the passengers cause of action
against the airline company is premised on culpa
aquiliana or quasi-delict for a tort committed by the
employee of the airline companys agent, there must be
an independent showing that the airline company was at
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Prof. Avena
fault or negligent or has contributed to the negligence or

tortuous conduct committed by the employee of its agent.
The mere fact that the employee of the airline companys
agent has committed a tort is not sufficient to hold the
airline company liable. There is no vinculum juris
between the airline company and its agents employees
and the contractual relationship between the airline
company and its agent does not operate to create a
juridical tie between the airline company and its agents
employees. Article 2180 of the Civil Code does not make
the principal vicariously liable for the tort committed by
its agents employees and the principal-agency
relationship per se does not make the principal a party to
such tort; hence, the need to prove the principals own
fault or negligence.
On the other hand, if the passengers cause of action for
damages against the airline company is based on
contractual breach or culpa contractual, it is not
necessary that there be evidence of the airline companys
fault or negligence. As this Court previously stated in
China Air Lines and reiterated in Air France vs. Gillego,24
"in an action based on a breach of contract of carriage,
the aggrieved party does not have to prove that the
common carrier was at fault or was negligent. All that he
has to prove is the existence of the contract and the fact
of its non-performance by the carrier."
Spouses Vilorias cause of action on the basis of Magers
alleged fraudulent misrepresentation is clearly one of
tort or quasi-delict, there being no pre-existing
contractual relationship between them. Therefore, it was
incumbent upon Spouses Viloria to prove that CAI was
equally at fault.
14. HEARSAY
Page 53 of 149
However, the records are devoid of any evidence by

which CAIs alleged liability can be substantiated. Apart
from their claim that CAI must be held liable for Magers
supposed fraud because Holiday Travel is CAIs agent,
Spouses Viloria did not present evidence that CAI was a
party or had contributed to Magers complained act
either by instructing or authorizing Holiday Travel and
Mager to issue the said misrepresentation.
It may seem unjust at first glance that CAI would
consider Spouses Viloria bound by the terms and
conditions of the subject contracts, which Mager entered
into with them on CAIs behalf, in order to deny Spouses
Vilorias request for a refund or Fernandos use of
Lourdes ticket for the re-issuance of a new one, and
simultaneously claim that they are not bound by Magers
supposed misrepresentation for purposes of avoiding
Spouses Vilorias claim for damages and maintaining the
validity of the subject contracts. It may likewise be
argued that CAI cannot deny liability as it benefited from
Magers acts, which were performed in compliance with
Holiday Travels obligations as CAIs agent.
However, a persons vicarious liability is anchored on his
possession of control, whether absolute or limited, on the
tortfeasor. Without such control, there is nothing which
could justify extending the liability to a person other than
the one who committed the tort. As this Court explained
in Cangco v. Manila Railroad Co.:25
With respect to extra-contractual obligation arising
from negligence, whether of act or omission, it is
competent for the legislature to elect and our
Legislature has so elected to limit such liability to
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Prof. Avena
cases in which the person upon whom such an obligation

is imposed is morally culpable or, on the contrary, for
reasons of public policy, to extend that liability,
without regard to the lack of moral culpability, so as
to include responsibility for the negligence of those
persons whose acts or omissions are imputable, by a
legal fiction, to others who are in a position to
exercise an absolute or limited control over them.
The legislature which adopted our Civil Code has elected
to limit extra-contractual liability with certain welldefined exceptions to cases in which moral culpability
can be directly imputed to the persons to be charged.
This moral responsibility may consist in having failed to
exercise due care in one's own acts, or in having failed to
exercise due care in the selection and control of one's
agent or servants, or in the control of persons who, by
reasons of their status, occupy a position of dependency
with respect to the person made liable for their
conduct.26 (emphasis supplied)
It is incumbent upon Spouses Viloria to prove that CAI
exercised control or supervision over Mager by
preponderant evidence. The existence of control or
supervision cannot be presumed and CAI is under no
obligation to prove its denial or nugatory assertion.
Citing Belen v. Belen,27 this Court ruled in Jayme v.
Apostol,28 that:
In Belen v. Belen, this Court ruled that it was enough for
defendant to deny an alleged employment relationship.
The defendant is under no obligation to prove the
negative averment. This Court said:
14. HEARSAY
Page 54 of 149
"It is an old and well-settled rule of the courts that the

burden of proving the action is upon the plaintiff, and
that if he fails satisfactorily to show the facts upon which
he bases his claim, the defendant is under no obligation
to prove his exceptions. This [rule] is in harmony with
the provisions of Section 297 of the Code of Civil
Procedure holding that each party must prove his own
affirmative allegations, etc."29 (citations omitted)
Therefore, without a modicum of evidence that CAI
exercised control over Holiday Travels employees or
that CAI was equally at fault, no liability can be imposed
on CAI for Magers supposed misrepresentation.
III. Even on the assumption that CAI may be held liable for the acts
of Mager, still, Spouses Viloria are not entitled to a refund. Magers
statement cannot be considered a causal fraud that would justify
the annulment of the subject contracts that would oblige CAI to
indemnify Spouses Viloria and return the money they paid for the
subject tickets.
Article 1390, in relation to Article 1391 of the Civil Code,
provides that if the consent of the contracting parties was
obtained through fraud, the contract is considered
voidable and may be annulled within four (4) years from
the time of the discovery of the fraud. Once a contract is
annulled, the parties are obliged under Article 1398 of
the same Code to restore to each other the things subject
matter of the contract, including their fruits and interest.
On the basis of the foregoing and given the allegation of
Spouses Viloria that Fernandos consent to the subject
contracts was supposedly secured by Mager through
fraudulent means, it is plainly apparent that their
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Prof. Avena
demand for a refund is tantamount to seeking for an

annulment of the subject contracts on the ground of
vitiated consent.
Whether the subject contracts are annullable, this Court
is required to determine whether Magers alleged
misrepresentation constitutes causal fraud. Similar to the
dispute on the existence of an agency, whether fraud
attended the execution of a contract is factual in nature
and this Court, as discussed above, may scrutinize the
records if the findings of the CA are contrary to those of
the RTC.
Under Article 1338 of the Civil Code, there is fraud when,
through insidious words or machinations of one of the
contracting parties, the other is induced to enter into a
contract which, without them, he would not have agreed
to. In order that fraud may vitiate consent, it must be the
causal (dolo causante), not merely the incidental (dolo
incidente), inducement to the making of the contract.30 In
Samson v. Court of Appeals,31 causal fraud was defined as
"a deception employed by one party prior to or
simultaneous to the contract in order to secure the
consent of the other."32
Also, fraud must be serious and its existence must be
established by clear and convincing evidence. As ruled by
this Court in Sierra v. Hon. Court of Appeals, et al.,33 mere
preponderance of evidence is not adequate:
Fraud must also be discounted, for according to the Civil
Code:
14. HEARSAY
Page 55 of 149
Art. 1338. There is fraud when, through insidious words

or machinations of one of the contracting parties, the
other is induced to enter into a contract which without
them, he would not have agreed to.
Art. 1344. In order that fraud may make a contract
voidable, it should be serious and should not have been
employed by both contracting parties.
To quote Tolentino again, the "misrepresentation
constituting the fraud must be established by full, clear,
and convincing evidence, and not merely by a
preponderance thereof. The deceit must be serious. The
fraud is serious when it is sufficient to impress, or to lead
an ordinarily prudent person into error; that which
cannot deceive a prudent person cannot be a ground for
nullity. The circumstances of each case should be
considered, taking into account the personal conditions
of the victim."34
After meticulously poring over the records, this Court
finds that the fraud alleged by Spouses Viloria has not
been satisfactorily established as causal in nature to
warrant the annulment of the subject contracts. In fact,
Spouses Viloria failed to prove by clear and convincing
evidence that Magers statement was fraudulent.
Specifically, Spouses Viloria failed to prove that (a) there
were indeed available seats at Amtrak for a trip to New
Jersey on August 13, 1997 at the time they spoke with
Mager on July 21, 1997; (b) Mager knew about this; and
(c) that she purposely informed them otherwise.
This Court finds the only proof of Magers alleged fraud,
which is Fernandos testimony that an Amtrak had
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Prof. Avena
assured him of the perennial availability of seats at

Amtrak, to be wanting. As CAI correctly pointed out and
as Fernando admitted, it was possible that during the
intervening period of three (3) weeks from the time
Fernando purchased the subject tickets to the time he
talked to said Amtrak employee, other passengers may
have cancelled their bookings and reservations with
Amtrak, making it possible for Amtrak to accommodate
them. Indeed, the existence of fraud cannot be proved by
mere speculations and conjectures. Fraud is never lightly
inferred; it is good faith that is. Under the Rules of Court,
it is presumed that "a person is innocent of crime or
wrong" and that "private transactions have been fair and
regular."35 Spouses Viloria failed to overcome this
presumption.
IV. Assuming the contrary, Spouses Viloria are nevertheless
deemed to have ratified the subject contracts.
Even assuming that Magers representation is causal
fraud, the subject contracts have been impliedly ratified
when Spouses Viloria decided to exercise their right to
use the subject tickets for the purchase of new ones.
Under Article 1392 of the Civil Code, "ratification
extinguishes the action to annul a voidable contract."
Ratification of a voidable contract is defined under
Article 1393 of the Civil Code as follows:
Art. 1393. Ratification may be effected expressly or
tacitly. It is understood that there is a tacit ratification if,
with knowledge of the reason which renders the contract
voidable and such reason having ceased, the person who
14. HEARSAY
Page 56 of 149
has a right to invoke it should execute an act which

necessarily implies an intention to waive his right.
Implied ratification may take diverse forms, such as by
silence or acquiescence; by acts showing approval or
adoption of the contract; or by acceptance and retention
of benefits flowing therefrom.36
Simultaneous with their demand for a refund on the
ground of Fernandos vitiated consent, Spouses Viloria
likewise asked for a refund based on CAIs supposed bad
faith in reneging on its undertaking to replace the subject
tickets with a round trip ticket from Manila to Los
Angeles.
In doing so, Spouses Viloria are actually asking for a
rescission of the subject contracts based on contractual
breach. Resolution, the action referred to in Article 1191,
is based on the defendants breach of faith, a violation of
the reciprocity between the parties37 and in Solar
Harvest, Inc. v. Davao Corrugated Carton Corporation,38
this Court ruled that a claim for a reimbursement in view
of the other partys failure to comply with his obligations
under the contract is one for rescission or resolution.
However, annulment under Article 1390 of the Civil Code
and rescission under Article 1191 are two (2)
inconsistent remedies. In resolution, all the elements to
make the contract valid are present; in annulment, one of
the essential elements to a formation of a contract, which
is consent, is absent. In resolution, the defect is in the
consummation stage of the contract when the parties are
in the process of performing their respective obligations;
in annulment, the defect is already present at the time of
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Prof. Avena
the negotiation and perfection stages of the contract.

Accordingly, by pursuing the remedy of rescission under
Article 1191, the Vilorias had impliedly admitted the
validity of the subject contracts, forfeiting their right to
demand their annulment. A party cannot rely on the
contract and claim rights or obligations under it and at
the same time impugn its existence or validity. Indeed,
litigants are enjoined from taking inconsistent
positions.39
V. Contracts cannot be rescinded for a slight or casual breach.
CAI cannot insist on the non-transferability of the subject
tickets.
Considering that the subject contracts are not annullable
on the ground of vitiated consent, the next question is:
"Do Spouses Viloria have the right to rescind the contract
on the ground of CAIs supposed breach of its
undertaking to issue new tickets upon surrender of the
subject tickets?"
Article 1191, as presently worded, states:
The power to rescind obligations is implied in reciprocal
ones, in case one of the obligors should not comply with
what is incumbent upon him.
The injured party may choose between the fulfilment and
the rescission of the obligation, with the payment of
damages in either case. He may also seek rescission, even
after he has chosen fulfillment, if the latter should
become impossible.
14. HEARSAY
Page 57 of 149
The court shall decree the rescission claimed, unless

there be just cause authorizing the fixing of a period.
This is understood to be without prejudice to the rights
of third persons who have acquired the thing, in
accordance with articles 1385 and 1388 and the
Mortgage Law.
According to Spouses Viloria, CAI acted in bad faith and
breached the subject contracts when it refused to apply
the value of Lourdes ticket for Fernandos purchase of a
round trip ticket to Los Angeles and in requiring him to
pay an amount higher than the price fixed by other
airline companies.
In its March 24, 1998 letter, CAI stated that "nonrefundable tickets may be used as a form of payment
toward the purchase of another Continental ticket for
$75.00, per ticket, reissue fee ($50.00, per ticket, for
tickets purchased prior to October 30, 1997)."
Clearly, there is nothing in the above-quoted section of
CAIs letter from which the restriction on the nontransferability of the subject tickets can be inferred. In
fact, the words used by CAI in its letter supports the
position of Spouses Viloria, that each of them can use the
ticket under their name for the purchase of new tickets
whether for themselves or for some other person.
Moreover, as CAI admitted, it was only when Fernando
had expressed his interest to use the subject tickets for
the purchase of a round trip ticket between Manila and
Los Angeles that he was informed that he cannot use the
ticket in Lourdes name as payment.
Law __ Evidence
Prof. Avena
Contrary to CAIs claim, that the subject tickets are nontransferable cannot be implied from a plain reading of
the provision printed on the subject tickets stating that
"[t]o the extent not in conflict with the foregoing carriage
and other services performed by each carrier are subject
to: (a) provisions contained in this ticket, x x x (iii)
carriers conditions of carriage and related regulations
which are made part hereof (and are available on
application at the offices of carrier) x x x." As a common
carrier whose business is imbued with public interest,
the exercise of extraordinary diligence requires CAI to
inform Spouses Viloria, or all of its passengers for that
matter, of all the terms and conditions governing their
contract of carriage. CAI is proscribed from taking
advantage of any ambiguity in the contract of carriage to
impute knowledge on its passengers of and demand
compliance with a certain condition or undertaking that
is not clearly stipulated. Since the prohibition on
transferability is not written on the face of the subject
tickets and CAI failed to inform Spouses Viloria thereof,
CAI cannot refuse to apply the value of Lourdes ticket as
payment for Fernandos purchase of a new ticket.
CAIs refusal to accept Lourdes ticket for the purchase of a new
ticket for Fernando is only a casual breach.
Nonetheless, the right to rescind a contract for non-performance of its
stipulations is not absolute. The general rule is that rescission of a
contract will not be permitted for a slight or casual breach, but only for
such substantial and fundamental violations as would defeat the very
object of the parties in making the agreement.40 Whether a breach is
substantial is largely determined by the attendant circumstances.41
14. HEARSAY
Page 58 of 149
While CAIs refusal to allow Fernando to use the value of Lourdes ticket
as payment for the purchase of a new ticket is unjustified as the nontransferability of the subject tickets was not clearly stipulated, it cannot,
however be considered substantial. The endorsability of the subject
tickets is not an essential part of the underlying contracts and CAIs
failure to comply is not essential to its fulfillment of its undertaking to
issue new tickets upon Spouses Vilorias surrender of the subject tickets.
This Court takes note of CAIs willingness to perform its principal
obligation and this is to apply the price of the ticket in Fernandos name
to the price of the round trip ticket between Manila and Los Angeles. CAI
was likewise willing to accept the ticket in Lourdes name as full or
partial payment as the case may be for the purchase of any ticket, albeit
under her name and for her exclusive use. In other words, CAIs
willingness to comply with its undertaking under its March 24, 1998
cannot be doubted, albeit tainted with its erroneous insistence that
Lourdes ticket is non-transferable.
Moreover, Spouses Vilorias demand for rescission cannot prosper as
CAI cannot be solely faulted for the fact that their agreement failed to
consummate and no new ticket was issued to Fernando. Spouses Viloria
have no right to insist that a single round trip ticket between Manila and
Los Angeles should be priced at around $856.00 and refuse to pay the
difference between the price of the subject tickets and the amount fixed
by CAI. The petitioners failed to allege, much less prove, that CAI had
obliged itself to issue to them tickets for any flight anywhere in the
world upon their surrender of the subject tickets. In its March 24, 1998
letter, it was clearly stated that "[n]on-refundable tickets may be used as
a form of payment toward the purchase of another Continental ticket"42
and there is nothing in it suggesting that CAI had obliged itself to protect
Spouses Viloria from any fluctuation in the prices of tickets or that the
surrender of the subject tickets will be considered as full payment for
any ticket that the petitioners intend to buy regardless of actual price
and destination. The CA was correct in holding that it is CAIs right and
exclusive prerogative to fix the prices for its services and it may not be
Law __ Evidence
Prof. Avena
compelled to observe and maintain the prices of other airline

companies.43
The conflict as to the endorsability of the subject tickets is an altogether
different matter, which does not preclude CAI from fixing the price of a
round trip ticket between Manila and Los Angeles in an amount it deems
proper and which does not provide Spouses Viloria an excuse not to pay
such price, albeit subject to a reduction coming from the value of the
subject tickets. It cannot be denied that Spouses Viloria had the
concomitant obligation to pay whatever is not covered by the value of
the subject tickets whether or not the subject tickets are transferable or
not.1avvphi1
There is also no showing that Spouses Viloria were discriminated
against in bad faith by being charged with a higher rate. The only
evidence the petitioners presented to prove that the price of a round trip
ticket between Manila and Los Angeles at that time was only $856.00 is a
newspaper advertisement for another airline company, which is
inadmissible for being "hearsay evidence, twice removed." Newspaper
clippings are hearsay if they were offered for the purpose of proving the
truth of the matter alleged. As ruled in Feria v. Court of Appeals,:44
[N]ewspaper articles amount to "hearsay evidence, twice removed" and
are therefore not only inadmissible but without any probative value at
all whether objected to or not, unless offered for a purpose other than
proving the truth of the matter asserted. In this case, the news article is
admissible only as evidence that such publication does exist with the
tenor of the news therein stated.45 (citations omitted)
The records of this case demonstrate that both parties were equally in
default; hence, none of them can seek judicial redress for the
cancellation or resolution of the subject contracts and they are therefore
bound to their respective obligations thereunder. As the 1st sentence of
Article 1192 provides:
14. HEARSAY
Page 59 of 149
Art. 1192. In case both parties have committed a breach of the

obligation, the liability of the first infractor shall be equitably
tempered by the courts. If it cannot be determined which of the parties
first violated the contract, the same shall be deemed extinguished, and
each shall bear his own damages. (emphasis supplied)
Therefore, CAIs liability for damages for its refusal to accept Lourdes
ticket for the purchase of Fernandos round trip ticket is offset by
Spouses Vilorias liability for their refusal to pay the amount, which is
not covered by the subject tickets. Moreover, the contract between them
remains, hence, CAI is duty bound to issue new tickets for a destination
chosen by Spouses Viloria upon their surrender of the subject tickets
and Spouses Viloria are obliged to pay whatever amount is not covered
by the value of the subject tickets.
This Court made a similar ruling in Central Bank of the Philippines v.
Court of Appeals.46 Thus:
Since both parties were in default in the performance of their respective
reciprocal obligations, that is, Island Savings Bank failed to comply with
its obligation to furnish the entire loan and Sulpicio M. Tolentino failed
to comply with his obligation to pay his P17,000.00 debt within 3 years
as stipulated, they are both liable for damages.
Article 1192 of the Civil Code provides that in case both parties have
committed a breach of their reciprocal obligations, the liability of the
first infractor shall be equitably tempered by the courts. WE rule that the
liability of Island Savings Bank for damages in not furnishing the entire
loan is offset by the liability of Sulpicio M. Tolentino for damages, in the
form of penalties and surcharges, for not paying his overdue P17,000.00
debt. x x x.47
Another consideration that militates against the propriety of holding CAI
liable for moral damages is the absence of a showing that the latter acted
Law __ Evidence
Prof. Avena
fraudulently and in bad faith. Article 2220 of the Civil Code requires
evidence of bad faith and fraud and moral damages are generally not
recoverable in culpa contractual except when bad faith had been
proven.48 The award of exemplary damages is likewise not warranted.
Apart from the requirement that the defendant acted in a wanton,
oppressive and malevolent manner, the claimant must prove his
entitlement to moral damages.49
WHEREFORE, premises considered, the instant Petition is DENIED.
SO ORDERED.
14. HEARSAY
Page 60 of 149
Law __ Evidence
G.R. No. L-20986
Prof. Avena
August 14, 1965
THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. VICENTE N. CUSI JR., Presiding Judge, Branch I, Court of First
Instance of Davao, ARCADIO PUESCA alias Big Boy, WALTER APA,
JOSE GUSTILO alias Peping, FILOMENO MACALINAO, JR. alias White,
RICARDO DAIRO alias Carding, and MAGNO MONTANO alias Edol,
respondents.
Davao Provincial Fiscal Alejandro B. Ruiz and Assistant Provincial Fiscal
Martin V. Delgra, Jr. for petitioner.
No appearance for respondents.
DIZON, J.:
In Criminal Case No. 6813 of the Court of First Instance of Davao,
Arcadio Puesca, Walter Apa, Jose Gustilo, Filomeno Macalinao, Ricardo
Dairo, and Magno Montano were charged with robbery in band with
homicide, to which they pleaded not guilty. During the trial, and while
Sgt. Lucio Bano of the Police Force of Digos, Davao was testifying as a
prosecution witness regarding the extrajudicial confession made to him
by the accused Arcadio Puesca, he said that the latter, aside from
admitting his participation in the commission of the offense charged,
revealed that other persons conspired with him to to commit the offense,
mentioning the name of each and everyone of them. Following up this
testimony, the prosecuting officer asked the witness to mention in court
the names of Puesca's alleged co-conspirators. Counsel for the accused
Macalinao, Gustilo and Dairo objected to this, upon the ground that
whatever the witness would say would be hearsay as far as his clients
were concerned. The respondent judge resolved the objection directing
the witness to answer the question but without mentioning or giving the
names of the accused who had interposed the objection. In other words,
the witness was allowed to answer the question and name his co-
14. HEARSAY
Page 61 of 149
conspirators except those who had raised the objection. The prosecuting
officer's motion for reconsideration of this ruling was denied. Hence the
present petition for certiorari praying that the abovementioned ruling of
the respondent judge be declared erroneous and for a further order
directing said respondent judge to allow witness Bano to answer the
question in full.
The question involved herein is purely one of evidence. There is no
question that hearsay evidence, if timely objected to, may not be
admitted. But while the testimony of a witness regarding a statement
made by another person, if intended to establish the truth of the facts
asserted in the statement, is clearly hearsay evidence, it is otherwise if
the purpose of placing the statement in the record is merely to establish
the fact that the statement was made or the tenor of such statement
(People vs. Lew Yon, 97 Cal. 224; VI Wigmore 177-8).
In the present case, the purpose of the prosecuting officer, as manifested
by him in the discussions below, is nothing more than to establish the
fact that the accused Puesca had mentioned to Sgt. Bano the names of
those who conspired with him to commit the offense charged, without
claiming that Puesca's statement or the answer to be given by Sgt. Bano
would be competent and admissible evidence to show that the persons
so named really conspired with Puesca. For this limited purpose, we
believe that the question propounded to the witness was proper and the
latter should have been allowed to answer it in full, with the
understanding, however, that his answer shall not to be taken as
competent evidence to show that the persons named really and actually
conspired with Puesca and later took part in the commission of the
offense.
On the other hand, the fact which the prosecuting officer intended to
establish would seem to be relevant to explain why the police force of
the place where the offense was committed subsequently questioned
and investigated the persons allegedly named by Puesca.
Law __ Evidence
Prof. Avena
PREMISES CONSIDERED, the writ is granted. The writ of preliminary

injunction issued heretofore is hereby set aside.
14. HEARSAY
Page 62 of 149
Law __ Evidence
Prof. Avena
G.R. No. 146710-15
March 2, 2001
JOSEPH E. ESTRADA, petitioner,

vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON
GONZALES, VOLUNTEERS AGAINST CRIME AND CORRUPTION,
GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA,
DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO, JR.,
respondent.
14. HEARSAY
Page 63 of 149
petitioner believing he would rescue them from life's adversity. Both

petitioner and the respondent were to serve a six-year term
commencing on June 30, 1998.
From the beginning of his term, however, petitioner was plagued by a
plethora of problems that slowly but surely eroded his popularity. His
sharp descent from power started on October 4, 2000. Ilocos Sur
Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went
on air and accused the petitioner, his family and friends of receiving
millions of pesos from jueteng lords.1
---------------------------------------G.R. No. 146738
March 2, 2001
JOSEPH E. ESTRADA, petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, respondent.
PUNO, J.:
On the line in the cases at bar is the office of the President. Petitioner
Joseph Ejercito Estrada alleges that he is the President on leave while
respondent Gloria Macapagal-Arroyo claims she is the President. The
warring personalities are important enough but more transcendental
are the constitutional issues embedded on the parties' dispute. While the
significant issues are many, the jugular issue involves the relationship
between the ruler and the ruled in a democracy, Philippine style.
First, we take a view of the panorama of events that precipitated the
crisis in the office of the President.
In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was
elected President while respondent Gloria Macapagal-Arroyo was
elected Vice-President. Some ten (10) million Filipinos voted for the
The expos immediately ignited reactions of rage. The next day, October
5, 2000, Senator Teofisto Guingona, Jr., then the Senate Minority Leader,
took the floor and delivered a fiery privilege speech entitled "I Accuse."
He accused the petitioner of receiving some P220 million in jueteng
money from Governor Singson from November 1998 to August 2000. He
also charged that the petitioner took from Governor Singson P70 million
on excise tax on cigarettes intended for Ilocos Sur. The privilege speech
was referred by then Senate President Franklin Drilon, to the Blue
Ribbon Committee (then headed by Senator Aquilino Pimentel) and the
Committee on Justice (then headed by Senator Renato Cayetano) for
joint investigation.2
The House of Representatives did no less. The House Committee on
Public Order and Security, then headed by Representative Roilo Golez,
decided to investigate the expos of Governor Singson. On the other
hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael
Defensor spearheaded the move to impeach the petitioner.
Calls for the resignation of the petitioner filled the air. On October 11,
Archbishop Jaime Cardinal Sin issued a pastoral statement in behalf of
the Presbyteral Council of the Archdiocese of Manila, asking petitioner to
step down from the presidency as he had lost the moral authority to
govern.3 Two days later or on October 13, the Catholic Bishops
Law __ Evidence
Prof. Avena
Conference of the Philippines joined the cry for the resignation of the
petitioner.4 Four days later, or on October 17, former President Corazon
C. Aquino also demanded that the petitioner take the "supreme selfsacrifice" of resignation.5 Former President Fidel Ramos also joined the
chorus. Early on, or on October 12, respondent Arroyo resigned as
Secretary of the Department of Social Welfare and Services6 and later
asked for petitioner's resignation.7 However, petitioner strenuously held
on to his office and refused to resign.
The heat was on. On November 1, four (4) senior economic advisers,
members of the Council of Senior Economic Advisers, resigned. They
were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Virata,
former Senator Vicente Paterno and Washington Sycip.8 On November 2,
Secretary Mar Roxas II also resigned from the Department of Trade and
Industry.9 On November 3, Senate President Franklin Drilon, and House
Speaker Manuel Villar, together with some 47 representatives defected
from the ruling coalition, Lapian ng Masang Pilipino.10
The month of November ended with a big bang. In a tumultuous session
on November 13, House Speaker Villar transmitted the Articles of
Impeachment11 signed by 115 representatives, or more than 1/3 of all
the members of the House of Representatives to the Senate. This caused
political convulsions in both houses of Congress. Senator Drilon was
replaced by Senator Pimentel as Senate President. Speaker Villar was
unseated by Representative Fuentebella.12 On November 20, the Senate
formally opened the impeachment trial of the petitioner. Twenty-one
(21) senators took their oath as judges with Supreme Court Chief Justice
Hilario G. Davide, Jr., presiding.13
The political temperature rose despite the cold December. On December
7, the impeachment trial started.14 The battle royale was fought by some
of the marquee names in the legal profession. Standing as prosecutors
were then House Minority Floor Leader Feliciano Belmonte and
Representatives Joker Arroyo, Wigberto Taada, Sergio Apostol, Raul
14. HEARSAY
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Gonzales, Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar

Rodriguez, Clavel Martinez and Antonio Nachura. They were assisted by
a battery of private prosecutors led by now Secretary of Justice
Hernando Perez and now Solicitor General Simeon Marcelo. Serving as
defense counsel were former Chief Justice Andres Narvasa, former
Solicitor General and Secretary of Justice Estelito P. Mendoza, former
City Fiscal of Manila Jose Flaminiano, former Deputy Speaker of the
House Raul Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund
Fortun. The day to day trial was covered by live TV and during its course
enjoyed the highest viewing rating. Its high and low points were the
constant conversational piece of the chattering classes. The dramatic
point of the December hearings was the testimony of Clarissa Ocampo,
senior vice president of Equitable-PCI Bank. She testified that she was
one foot away from petitioner Estrada when he affixed the signature
"Jose Velarde" on documents involving a P500 million investment
agreement with their bank on February 4, 2000.15
After the testimony of Ocampo, the impeachment trial was adjourned in
the spirit of Christmas. When it resumed on January 2, 2001, more
bombshells were exploded by the prosecution. On January 11, Atty.
Edgardo Espiritu who served as petitioner's Secretary of Finance took
the witness stand. He alleged that the petitioner jointly owned BW
Resources Corporation with Mr. Dante Tan who was facing charges of
insider trading.16 Then came the fateful day of January 16, when by a
vote of 11-1017 the senator-judges ruled against the opening of the
second envelope which allegedly contained evidence showing that
petitioner held P3.3 billion in a secret bank account under the name
"Jose Velarde." The public and private prosecutors walked out in protest
of the ruling. In disgust, Senator Pimentel resigned as Senate President.18
The ruling made at 10:00 p.m. was met by a spontaneous outburst of
anger that hit the streets of the metropolis. By midnight, thousands had
assembled at the EDSA Shrine and speeches full of sulphur were
delivered against the petitioner and the eleven (11) senators.
Law __ Evidence
Prof. Avena
On January 17, the public prosecutors submitted a letter to Speaker

Fuentebella tendering their collective resignation. They also filed their
Manifestation of Withdrawal of Appearance with the impeachment
tribunal.19 Senator Raul Roco quickly moved for the indefinite
postponement of the impeachment proceedings until the House of
Representatives shall have resolved the issue of resignation of the public
prosecutors. Chief Justice Davide granted the motion.20
January 18 saw the high velocity intensification of the call for
petitioner's resignation. A 10-kilometer line of people holding lighted
candles formed a human chain from the Ninoy Aquino Monument on
Ayala Avenue in Makati City to the EDSA Shrine to symbolize the
people's solidarity in demanding petitioner's resignation. Students and
teachers walked out of their classes in Metro Manila to show their
concordance. Speakers in the continuing rallies at the EDSA Shrine, all
masters of the physics of persuasion, attracted more and more people.21
On January 19, the fall from power of the petitioner appeared inevitable.
At 1:20 p.m., the petitioner informed Executive Secretary Edgardo
Angara that General Angelo Reyes, Chief of Staff of the Armed Forces of
the Philippines, had defected. At 2:30 p.m., petitioner agreed to the
holding of a snap election for President where he would not be a
candidate. It did not diffuse the growing crisis. At 3:00 p.m., Secretary of
National Defense Orlando Mercado and General Reyes, together with the
chiefs of all the armed services went to the EDSA Shrine.22 In the
presence of former Presidents Aquino and Ramos and hundreds of
thousands of cheering demonstrators, General Reyes declared that "on
behalf of Your Armed Forces, the 130,000 strong members of the Armed
Forces, we wish to announce that we are withdrawing our support to
this government."23 A little later, PNP Chief, Director General Panfilo
Lacson and the major service commanders gave a similar stunning
announcement.24 Some Cabinet secretaries, undersecretaries, assistant
secretaries, and bureau chiefs quickly resigned from their posts.25 Rallies
for the resignation of the petitioner exploded in various parts of the
14. HEARSAY
Page 65 of 149
country. To stem the tide of rage, petitioner announced he was ordering

his lawyers to agree to the opening of the highly controversial second
envelope.26 There was no turning back the tide. The tide had become a
tsunami.
January 20 turned to be the day of surrender. At 12:20 a.m., the first
round of negotiations for the peaceful and orderly transfer of power
started at Malacaang'' Mabini Hall, Office of the Executive Secretary.
Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon
Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary Boying
Remulla, and Atty. Macel Fernandez, head of the Presidential
Management Staff, negotiated for the petitioner. Respondent Arroyo was
represented by now Executive Secretary Renato de Villa, now Secretary
of Finance Alberto Romulo and now Secretary of Justice Hernando
Perez.27 Outside the palace, there was a brief encounter at Mendiola
between pro and anti-Estrada protesters which resulted in stonethrowing and caused minor injuries. The negotiations consumed all
morning until the news broke out that Chief Justice Davide would
administer the oath to respondent Arroyo at high noon at the EDSA
Shrine.
At about 12:00 noon, Chief Justice Davide administered the oath to
respondent Arroyo as President of the Philippines.28 At 2:30 p.m.,
petitioner and his family hurriedly left Malacaang Palace.29 He issued
the following press statement:30
"20 January 2001
STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA
At twelve o'clock noon today, Vice President Gloria MacapagalArroyo took her oath as President of the Republic of the
Law __ Evidence
Prof. Avena
Philippines. While along with many other legal minds of our

country, I have strong and serious doubts about the legality and
constitutionality of her proclamation as President, I do not wish
to be a factor that will prevent the restoration of unity and order
in our civil society.
It is for this reason that I now leave Malacaang Palace, the seat
of the presidency of this country, for the sake of peace and in
order to begin the healing process of our nation. I leave the
Palace of our people with gratitude for the opportunities given to
me for service to our people. I will not shirk from any future
challenges that may come ahead in the same service of our
country.
I call on all my supporters and followers to join me in to
promotion of a constructive national spirit of reconciliation and
solidarity.
May the Almighty bless our country and beloved people.
MABUHAY!
(Sgd.) JOSEPH EJERCITO ESTRADA"
It also appears that on the same day, January 20, 2001, he signed the
following letter:31
"Sir:
By virtue of the provisions of Section 11, Article VII of the
Constitution, I am hereby transmitting this declaration that I am
unable to exercise the powers and duties of my office. By
operation of law and the Constitution, the Vice-President shall be
the Acting President.
14. HEARSAY
Page 66 of 149
(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m.
on January 20.23 Another copy was transmitted to Senate President
Pimentel on the same day although it was received only at 9:00 p.m.33
On January 22, the Monday after taking her oath, respondent Arroyo
immediately discharged the powers the duties of the Presidency. On the
same day, this Court issued the following Resolution in Administrative
Matter No. 01-1-05-SC, to wit:
"A.M. No. 01-1-05-SC In re: Request of Vice President Gloria
Macapagal-Arroyo to Take her Oath of Office as President of the
Republic of the Philippines before the Chief Justice Acting on
the urgent request of Vice President Gloria Macapagal-Arroyo to
be sworn in as President of the Republic of the Philippines,
addressed to the Chief Justice and confirmed by a letter to the
Court, dated January 20, 2001, which request was treated as an
administrative matter, the court Resolve unanimously to confirm
the authority given by the twelve (12) members of the Court
then present to the Chief Justice on January 20, 2001 to
administer the oath of office of Vice President Gloria MacapagalArroyo as President of the Philippines, at noon of January 20,
2001.1wphi1.nt
This resolution is without prejudice to the disposition of any
justiciable case that may be filed by a proper party."
Respondent Arroyo appointed members of her Cabinet as well as
ambassadors and special envoys.34 Recognition of respondent Arroyo's
government by foreign governments swiftly followed. On January 23, in
a reception or vin d' honneur at Malacaang, led by the Dean of the
Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred
foreign diplomats recognized the government of respondent Arroyo.35
Law __ Evidence
Prof. Avena
US President George W. Bush gave the respondent a telephone call from

the White House conveying US recognition of her government.36
On January 24, Representative Feliciano Belmonte was elected new
Speaker of the House of Representatives.37 The House then passed
Resolution No. 175 "expressing the full support of the House of
Representatives to the administration of Her Excellency, Gloria
Macapagal-Arroyo, President of the Philippines."38 It also approved
Resolution No. 176 "expressing the support of the House of
Representatives to the assumption into office by Vice President Gloria
Macapagal-Arroyo as President of the Republic of the Philippines,
extending its congratulations and expressing its support for her
administration as a partner in the attainment of the nation's goals under
the Constitution."39
On January 26, the respondent signed into law the Solid Waste
Management Act.40 A few days later, she also signed into law the Political
Advertising ban and Fair Election Practices Act.41
On February 6, respondent Arroyo nominated Senator Teofisto
Guingona, Jr., as her Vice President.42 The next day, February 7, the
Senate adopted Resolution No. 82 confirming the nomination of Senator
Guingona, Jr.43 Senators Miriam Defensor-Santiago, Juan Ponce Enrile,
and John Osmena voted "yes" with reservations, citing as reason therefor
the pending challenge on the legitimacy of respondent Arroyo's
presidency before the Supreme Court. Senators Teresa Aquino-Oreta
and Robert Barbers were absent.44 The House of Representatives also
approved Senator Guingona's nomination in Resolution No. 178.45
Senator Guingona, Jr. took his oath as Vice President two (2) days later.46
On February 7, the Senate passed Resolution No. 83 declaring that the
impeachment court is functus officio and has been terminated.47 Senator
Miriam Defensor-Santiago stated "for the record" that she voted against
the closure of the impeachment court on the grounds that the Senate had
14. HEARSAY
Page 67 of 149
failed to decide on the impeachment case and that the resolution left
open the question of whether Estrada was still qualified to run for
another elective post.48
Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's
public acceptance rating jacked up from 16% on January 20, 2001 to
38% on January 26, 2001.49 In another survey conducted by the ABSCBN/SWS from February 2-7, 2001, results showed that 61% of the
Filipinos nationwide accepted President Arroyo as replacement of
petitioner Estrada. The survey also revealed that President Arroyo is
accepted by 60% in Metro Manila, by also 60% in the balance of Luzon,
by 71% in the Visayas, and 55% in Mindanao. Her trust rating increased
to 52%. Her presidency is accepted by majorities in all social classes:
58% in the ABC or middle-to-upper classes, 64% in the D or mass class,
and 54% among the E's or very poor class.50
After his fall from the pedestal of power, the petitioner's legal problems
appeared in clusters. Several cases previously filed against him in the
Office of the Ombudsman were set in motion. These are: (1) OMB Case
No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for
bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed by
the Volunteers Against Crime and Corruption on November 17, 2000 for
plunder, forfeiture, graft and corruption, bribery, perjury, serious
misconduct, violation of the Code of Conduct for Government Employees,
etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free Philippines
Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft and
corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-001756 filed by Romeo Capulong, et al., on November 28, 2000 for
malversation of public funds, illegal use of public funds and property,
plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et
al., on November 28, 2000 for bribery, plunder, indirect bribery,
violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB Case
No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for
plunder, graft and corruption.
Law __ Evidence
Prof. Avena
A special panel of investigators was forthwith created by the respondent

Ombudsman to investigate the charges against the petitioner. It is
chaired by Overall Deputy Ombudsman Margarito P. Gervasio with the
following as members, viz: Director Andrew Amuyutan, Prosecutor
Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On
January 22, the panel issued an Order directing the petitioner to file his
counter-affidavit and the affidavits of his witnesses as well as other
supporting documents in answer to the aforementioned complaints
against him.
Thus, the stage for the cases at bar was set. On February 5, petitioner
filed with this Court GR No. 146710-15, a petition for prohibition with a
prayer for a writ of preliminary injunction. It sought to enjoin the
respondent Ombudsman from "conducting any further proceedings in
Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any
other criminal complaint that may be filed in his office, until after the
term of petitioner as President is over and only if legally warranted."
Thru another counsel, petitioner, on February 6, filed GR No. 146738 for
Quo Warranto. He prayed for judgment "confirming petitioner to be the
lawful and incumbent President of the Republic of the Philippines
temporarily unable to discharge the duties of his office, and declaring
respondent to have taken her oath as and to be holding the Office of the
President, only in an acting capacity pursuant to the provisions of the
Constitution." Acting on GR Nos. 146710-15, the Court, on the same day,
February 6, required the respondents "to comment thereon within a
non-extendible period expiring on 12 February 2001." On February 13,
the Court ordered the consolidation of GR Nos. 146710-15 and GR No.
146738 and the filing of the respondents' comments "on or before 8:00
a.m. of February 15."
On February 15, the consolidated cases were orally argued in a fourhour hearing. Before the hearing, Chief Justice Davide, Jr.51 and Associate
Justice Artemio Panganiban52 recused themselves on motion of
petitioner's counsel, former Senator Rene A. Saguisag. They debunked
14. HEARSAY
Page 68 of 149
the charge of counsel Saguisag that they have "compromised themselves

by indicating that they have thrown their weight on one side" but
nonetheless inhibited themselves. Thereafter, the parties were given the
short period of five (5) days to file their memoranda and two (2) days to
submit their simultaneous replies.
In a resolution dated February 20, acting on the urgent motion for copies
of resolution and press statement for "Gag Order" on respondent
Ombudsman filed by counsel for petitioner in G.R. No. 146738, the Court
resolved:
"(1) to inform the parties that the Court did not issue a
resolution on January 20, 2001 declaring the office of the
President vacant and that neither did the Chief Justice issue a
press statement justifying the alleged resolution;
(2) to order the parties and especially their counsel who are
officers of the Court under pain of being cited for contempt to
refrain from making any comment or discussing in public the
merits of the cases at bar while they are still pending decision by
the Court, and
(3) to issue a 30-day status quo order effective immediately
enjoining the respondent Ombudsman from resolving or
deciding the criminal cases pending investigation in his office
against petitioner, Joseph E. Estrada and subject of the cases at
bar, it appearing from news reports that the respondent
Ombudsman may immediately resolve the cases against
petitioner Joseph E. Estrada seven (7) days after the hearing held
on February 15, 2001, which action will make the cases at bar
moot and academic."53
The parties filed their replies on February 24. On this date, the cases at
bar were deemed submitted for decision.
Law __ Evidence
Prof. Avena
14. HEARSAY
The bedrock issues for resolution of this Court are:

I
Whether the petitions present a justiciable controversy.
II
Assuming that the petitions present a justiciable controversy,
whether petitioner Estrada is a President on leave while
respondent Arroyo is an Acting President.
III
Whether conviction in the impeachment proceedings is a
condition precedent for the criminal prosecution of petitioner
Estrada. In the negative and on the assumption that petitioner is
still President, whether he is immune from criminal prosecution.
IV
Whether the prosecution of petitioner Estrada should be
enjoined on the ground of prejudicial publicity.
We shall discuss the issues in seriatim.
I
Whether or not the cases
At bar involve a political question
Private respondents54 raise the threshold issue that the cases at bar pose
a political question, and hence, are beyond the jurisdiction of this Court
Page 69 of 149
to decide. They contend that shorn of its embroideries, the cases at bar
assail the "legitimacy of the Arroyo administration." They stress that
respondent Arroyo ascended the presidency through people power; that
she has already taken her oath as the 14th President of the Republic; that
she has exercised the powers of the presidency and that she has been
recognized by foreign governments. They submit that these realities on
ground constitute the political thicket, which the Court cannot enter.
We reject private respondents' submission. To be sure, courts here and
abroad, have tried to lift the shroud on political question but its exact
latitude still splits the best of legal minds. Developed by the courts in the
20th century, the political question doctrine which rests on the principle
of separation of powers and on prudential considerations, continue to be
refined in the mills of constitutional law.55 In the United States, the most
authoritative guidelines to determine whether a question is political
were spelled out by Mr. Justice Brennan in the 1962 case or Baker v.
Carr,56 viz:
"x x x Prominent on the surface of any case held to involve a
political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable
standards for resolving it, or the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking
independent resolution without expressing lack of the respect
due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or
the potentiality of embarrassment from multifarious
pronouncements by various departments on question. Unless
one of these formulations is inextricable from the case at bar,
there should be no dismissal for non justiciability on the ground
of a political question's presence. The doctrine of which we treat
is one of 'political questions', not of 'political cases'."
Law __ Evidence
Prof. Avena
In the Philippine setting, this Court has been continuously confronted

with cases calling for a firmer delineation of the inner and outer
perimeters of a political question.57 Our leading case is Tanada v.
Cuenco,58 where this Court, through former Chief Justice Roberto
Concepcion, held that political questions refer "to those questions which,
under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority
has been delegated to the legislative or executive branch of the
government. It is concerned with issues dependent upon the wisdom,
not legality of a particular measure." To a great degree, the 1987
Constitution has narrowed the reach of the political question doctrine
when it expanded the power of judicial review of this court not only to
settle actual controversies involving rights which are legally demandable
and enforceable but also to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of
government.59 Heretofore, the judiciary has focused on the "thou shalt
not's" of the Constitution directed against the exercise of its
jurisdiction.60 With the new provision, however, courts are given a
greater prerogative to determine what it can do to prevent grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of government. Clearly, the new
provision did not just grant the Court power of doing nothing. In
sync and symmetry with this intent are other provisions of the 1987
Constitution trimming the so called political thicket. Prominent of these
provisions is section 18 of Article VII which empowers this Court in
limpid language to "x x x review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the writ (of habeas
corpus) or the extension thereof x x x."
Respondents rely on the case of Lawyers League for a Better
Philippines and/or Oliver A. Lozano v. President Corazon C. Aquino,
et al.61 and related cases62 to support their thesis that since the cases at
14. HEARSAY
Page 70 of 149
bar involve the legitimacy of the government of respondent Arroyo,

ergo, they present a political question. A more cerebral reading of the
cited cases will show that they are inapplicable. In the cited cases, we
held that the government of former President Aquino was the result of
a successful revolution by the sovereign people, albeit a peaceful one.
No less than the Freedom Constitution63 declared that the Aquino
government was installed through a direct exercise of the power of the
Filipino people "in defiance of the provisions of the 1973
Constitution, as amended." In is familiar learning that the legitimacy of
a government sired by a successful revolution by people power is
beyond judicial scrutiny for that government automatically orbits out of
the constitutional loop. In checkered contrast, the government of
respondent Arroyo is not revolutionary in character. The oath that
she took at the EDSA Shrine is the oath under the 1987 Constitution.64 In
her oath, she categorically swore to preserve and defend the 1987
Constitution. Indeed, she has stressed that she is discharging the
powers of the presidency under the authority of the 1987 Constitution.
In fine, the legal distinction between EDSA People Power I EDSA People
Power II is clear. EDSA I involves the exercise of the people power of
revolution which overthrew the whole government. EDSA II is an
exercise of people power of freedom of speech and freedom of
assembly to petition the government for redress of grievances
which only affected the office of the President. EDSA I is extra
constitutional and the legitimacy of the new government that resulted
from it cannot be the subject of judicial review, but EDSA II is intra
constitutional and the resignation of the sitting President that it caused
and the succession of the Vice President as President are subject to
judicial review. EDSA I presented a political question; EDSA II
involves legal questions. A brief discourse on freedom of speech and of
the freedom of assembly to petition the government for redress of
grievance which are the cutting edge of EDSA People Power II is not
inappropriate.
Law __ Evidence
Prof. Avena
Freedom of speech and the right of assembly are treasured by Filipinos.

Denial of these rights was one of the reasons of our 1898 revolution
against Spain. Our national hero, Jose P. Rizal, raised the clarion call for
the recognition of freedom of the press of the Filipinos and included it as
among "the reforms sine quibus non."65 The Malolos Constitution, which
is the work of the revolutionary Congress in 1898, provided in its Bill of
Rights that Filipinos shall not be deprived (1) of the right to freely
express his ideas or opinions, orally or in writing, through the use of the
press or other similar means; (2) of the right of association for purposes
of human life and which are not contrary to public means; and (3) of the
right to send petitions to the authorities, individually or collectively."
These fundamental rights were preserved when the United States
acquired jurisdiction over the Philippines. In the Instruction to the
Second Philippine Commission of April 7, 1900 issued by President
McKinley, it is specifically provided "that no law shall be passed
abridging the freedom of speech or of the press or of the rights of the
people to peaceably assemble and petition the Government for redress
of grievances." The guaranty was carried over in the Philippine Bill, the
Act of Congress of July 1, 1902 and the Jones Law, the Act of Congress of
August 29, 1966.66
Thence on, the guaranty was set in stone in our 1935 Constitution,67
and the 197368 Constitution. These rights are now safely ensconced in
section 4, Article III of the 1987 Constitution, viz:
"Sec. 4. No law shall be passed abridging the freedom of speech,
of expression, or of the press, or the right of the people peaceably
to assemble and petition the government for redress of
grievances."
The indispensability of the people's freedom of speech and of assembly
to democracy is now self-evident. The reasons are well put by Emerson:
first, freedom of expression is essential as a means of assuring individual
fulfillment; second, it is an essential process for advancing knowledge
14. HEARSAY
Page 71 of 149
and discovering truth; third, it is essential to provide for participation in

decision-making by all members of society; and fourth, it is a method of
achieving a more adaptable and hence, a more stable community of
maintaining the precarious balance between healthy cleavage and
necessary consensus."69 In this sense, freedom of speech and of
assembly provides a framework in which the "conflict necessary to
the progress of a society can take place without destroying the
society."70 In Hague v. Committee for Industrial Organization,71 this
function of free speech and assembly was echoed in the amicus curiae
filed by the Bill of Rights Committee of the American Bar Association
which emphasized that "the basis of the right of assembly is the
substitution of the expression of opinion and belief by talk rather than
force; and this means talk for all and by all."72 In the relatively recent
case of Subayco v. Sandiganbayan,73 this Court similar stressed that "
it should be clear even to those with intellectual deficits that when the
sovereign people assemble to petition for redress of grievances, all
should listen. For in a democracy, it is the people who count; those
who are deaf to their grievances are ciphers."
Needless to state, the cases at bar pose legal and not political questions.
The principal issues for resolution require the proper interpretation of
certain provisions in the 1987 Constitution, notably section 1 of Article
II,74 and section 875 of Article VII, and the allocation of governmental
powers under section 1176 of Article VII. The issues likewise call for a
ruling on the scope of presidential immunity from suit. They also involve
the correct calibration of the right of petitioner against prejudicial
publicity. As early as the 1803 case of Marbury v. Madison,77 the
doctrine has been laid down that "it is emphatically the province and
duty of the judicial department to say what the law is . . ." Thus,
respondent's in vocation of the doctrine of political question is but a
foray in the dark.
II
Law __ Evidence
Prof. Avena
Whether or not the petitioner
Resigned as President
We now slide to the second issue. None of the parties considered this
issue as posing a political question. Indeed, it involves a legal question
whose factual ingredient is determinable from the records of the case
and by resort to judicial notice. Petitioner denies he resigned as
President or that he suffers from a permanent disability. Hence, he
submits that the office of the President was not vacant when respondent
Arroyo took her oath as President.
The issue brings under the microscope the meaning of section 8, Article
VII of the Constitution which provides:
"Sec. 8. In case of death, permanent disability, removal from
office or resignation of the President, the Vice President shall
become the President to serve the unexpired term. In case of
death, permanent disability, removal from office, or resignation
of both the President and Vice President, the President of the
Senate or, in case of his inability, the Speaker of the House of
Representatives, shall then act as President until the President or
Vice President shall have been elected and qualified.
x x x."
The issue then is whether the petitioner resigned as President or should
be considered resigned as of January 20, 2001 when respondent took
her oath as the 14th President of the Public. Resignation is not a high
level legal abstraction. It is a factual question and its elements are
beyond quibble: there must be an intent to resign and the intent
must be coupled by acts of relinquishment.78 The validity of a
resignation is not government by any formal requirement as to form. It
can be oral. It can be written. It can be express. It can be implied. As long
as the resignation is clear, it must be given legal effect.
14. HEARSAY
Page 72 of 149
In the cases at bar, the facts show that petitioner did not write any
formal letter of resignation before he evacuated Malacaang Palace in
the afternoon of January 20, 2001 after the oath-taking of respondent
Arroyo. Consequently, whether or not petitioner resigned has to be
determined from his act and omissions before, during and after January
20, 2001 or by the totality of prior, contemporaneous and posterior
facts and circumstantial evidence bearing a material relevance on
the issue.
Using this totality test, we hold that petitioner resigned as President.
To appreciate the public pressure that led to the resignation of the
petitioner, it is important to follow the succession of events after the
expos of Governor Singson. The Senate Blue Ribbon Committee
investigated. The more detailed revelations of petitioner's alleged
misgovernance in the Blue Ribbon investigation spiked the hate against
him. The Articles of Impeachment filed in the House of Representatives
which initially was given a near cipher chance of succeeding snowballed.
In express speed, it gained the signatures of 115 representatives or more
than 1/3 of the House of Representatives. Soon, petitioner's powerful
political allies began deserting him. Respondent Arroyo quit as Secretary
of Social Welfare. Senate President Drilon and former Speaker Villar
defected with 47 representatives in tow. Then, his respected senior
economic advisers resigned together with his Secretary of Trade and
Industry.
As the political isolation of the petitioner worsened, the people's call for
his resignation intensified. The call reached a new crescendo when the
eleven (11) members of the impeachment tribunal refused to open the
second envelope. It sent the people to paroxysms of outrage. Before the
night of January 16 was over, the EDSA Shrine was swarming with
people crying for redress of their grievance. Their number grew
exponentially. Rallies and demonstration quickly spread to the
countryside like a brush fire.
Law __ Evidence
Prof. Avena
As events approached January 20, we can have an authoritative window

on the state of mind of the petitioner. The window is provided in the
"Final Days of Joseph Ejercito Estrada," the diary of Executive Secretary
Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary
reveals that in the morning of January 19, petitioner's loyal advisers
were worried about the swelling of the crowd at EDSA, hence, they
decided to create an ad hoc committee to handle it. Their worry would
worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small
office at the presidential residence and exclaimed: "Ed, seryoso na ito.
Kumalas na si Angelo (Reyes) (Ed, this is serious. Angelo has
defected.)"80 An hour later or at 2:30 p.m., the petitioner decided to call
for a snap presidential election and stressed he would not be a
candidate. The proposal for a snap election for president in May
where he would not be a candidate is an indicium that petitioner
had intended to give up the presidency even at that time. At 3:00
p.m., General Reyes joined the sea of EDSA demonstrators demanding
the resignation of the petitioner and dramatically announced the AFP's
withdrawal of support from the petitioner and their pledge of support to
respondent Arroyo. The seismic shift of support left petitioner weak as a
president. According to Secretary Angara, he asked Senator Pimentel to
advise petitioner to consider the option of "dignified exit or
resignation."81 Petitioner did not disagree but listened intently.82
The sky was falling fast on the petitioner. At 9:30 p.m., Senator Pimentel
repeated to the petitioner the urgency of making a graceful and dignified
exit. He gave the proposal a sweetener by saying that petitioner would
be allowed to go abroad with enough funds to support him and his
family.83 Significantly, the petitioner expressed no objection to the
suggestion for a graceful and dignified exit but said he would never
leave the country.84 At 10:00 p.m., petitioner revealed to Secretary
Angara, "Ed, Angie (Reyes) guaranteed that I would have five days to a
week in the palace."85 This is proof that petitioner had reconciled
himself to the reality that he had to resign. His mind was already
concerned with the five-day grace period he could stay in the
palace. It was a matter of time.
14. HEARSAY
Page 73 of 149
The pressure continued piling up. By 11:00 p.m., former President

Ramos called up Secretary Angara and requested, "Ed, magtulungan tayo
para magkaroon tayo ng (let's cooperate to ensure a) peaceful and
orderly transfer of power."86 There was no defiance to the request.
Secretary Angara readily agreed. Again, we note that at this stage, the
problem was already about a peaceful and orderly transfer of
power. The resignation of the petitioner was implied.
The first negotiation for a peaceful and orderly transfer of power
immediately started at 12:20 a.m. of January 20, that fateful Saturday.
The negotiation was limited to three (3) points: (1) the transition
period of five days after the petitioner's resignation; (2) the guarantee of
the safety of the petitioner and his family, and (3) the agreement to open
the second envelope to vindicate the name of the petitioner.87 Again, we
note that the resignation of petitioner was not a disputed point. The
petitioner cannot feign ignorance of this fact. According to Secretary
Angara, at 2:30 a.m., he briefed the petitioner on the three points and the
following entry in the Angara Diary shows the reaction of the
petitioner, viz:
"x x x
I explain what happened during the first round of negotiations.
The President immediately stresses that he just wants the fiveday period promised by Reyes, as well as to open the second
envelope to clear his name.
If the envelope is opened, on Monday, he says, he will leave
by Monday.
The President says. "Pagod na pagod na ako. Ayoko na
masyado nang masakit. Pagod na ako sa red tape,
bureaucracy, intriga. (I am very tired. I don't want any more
Law __ Evidence
Prof. Avena
of this it's too painful. I'm tired of the red tape, the
bureaucracy, the intrigue.)
I just want to clear my name, then I will go."88
Again, this is high grade evidence that the petitioner has resigned.
The intent to resign is clear when he said "x x x Ayoko na masyado nang
masakit." "Ayoko na" are words of resignation.
The second round of negotiation resumed at 7:30 a.m. According to
the Angara Diary, the following happened:
"Opposition's deal
7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagal's
spokesperson) Rene Corona. For this round, I am accompanied
by Dondon Bagatsing and Macel.
Rene pulls out a document titled "Negotiating Points." It reads:
'1. The President shall sign a resignation document within the
day, 20 January 2001, that will be effective on Wednesday, 24
January 2001, on which day the Vice President will assume the
Presidency of the Republic of the Philippines.
2. Beginning to day, 20 January 2001, the transition process for
the assumption of the new administration shall commence, and
persons designated by the Vice President to various positions
and offices of the government shall start their orientation
activities in coordination with the incumbent officials concerned.
3. The Armed Forces of the Philippines and the Philippine
National Police shall function under the Vice President as
national military and police authority effective immediately.
14. HEARSAY
Page 74 of 149
4. The Armed Forced of the Philippines, through its Chief of Staff,

shall guarantee the security of the President and his family as
approved by the national military and police authority (Vice
President).
5. It is to be noted that the Senate will open the second envelope
in connection with the alleged savings account of the President
in the Equitable PCI Bank in accordance with the rules of the
Senate, pursuant to the request to the Senate President.
Our deal
We bring out, too, our discussion draft which reads:
The undersigned parties, for and in behalf of their respective
principals, agree and undertake as follows:
'1. A transition will occur and take place on Wednesday, 24
January 2001, at which time President Joseph Ejercito Estrada
will turn over the presidency to Vice President Gloria MacapagalArroyo.
'2. In return, President Estrada and his families are guaranteed
security and safety of their person and property throughout their
natural lifetimes. Likewise, President Estrada and his families are
guarantee freedom from persecution or retaliation from
government and the private sector throughout their natural
lifetimes.
This commitment shall be guaranteed by the Armed Forces of
the Philippines (AFP) through the Chief of Staff, as approved by
the national military and police authorities Vice President
(Macapagal).
Law __ Evidence
Prof. Avena
'3. Both parties shall endeavor to ensure that the Senate sitting
as an impeachment court will authorize the opening of the
second envelope in the impeachment trial as proof that the
subject savings account does not belong to President Estrada.
'4. During the five-day transition period between 20 January
2001 and 24 January 2001 (the 'Transition Period"), the
incoming Cabinet members shall receive an appropriate briefing
from the outgoing Cabinet officials as part of the orientation
program.
14. HEARSAY
Page 75 of 149
However, the signing by the party of the respondent Arroyo was aborted
by her oath-taking. The Angara diary narrates the fateful events, viz;90
"xxx
11:00 a.m. Between General Reyes and myself, there is a firm
agreement on the five points to effect a peaceful transition. I can
hear the general clearing all these points with a group he is with.
I hear voices in the background.
Agreement.
During the Transition Period, the AFP and the Philippine

National Police (PNP) shall function Vice President (Macapagal)
as national military and police authorities.
Both parties hereto agree that the AFP chief of staff and PNP
director general shall obtain all the necessary signatures as
affixed to this agreement and insure faithful implementation and
observance thereof.
Vice President Gloria Macapagal-Arroyo shall issue a public
statement in the form and tenor provided for in "Annex A"
heretofore attached to this agreement."89
The second round of negotiation cements the reading that the petitioner
has resigned. It will be noted that during this second round of
negotiation, the resignation of the petitioner was again treated as a given
fact. The only unsettled points at that time were the measures to be
undertaken by the parties during and after the transition period.
According to Secretary Angara, the draft agreement, which was
premised on the resignation of the petitioner was further refined. It was
then, signed by their side and he was ready to fax it to General Reyes and
Senator Pimentel to await the signature of the United Opposition.
The agreement starts: 1. The President shall resign today, 20

January 2001, which resignation shall be effective on 24 January
2001, on which day the Vice President will assume the
presidency of the Republic of the Philippines.
xxx
The rest of the agreement follows:
2. The transition process for the assumption of the new
administration shall commence on 20 January 2001, wherein
persons designated by the Vice President to various government
positions shall start orientation activities with incumbent
officials.
'3. The Armed Forces of the Philippines through its Chief of Staff,
shall guarantee the safety and security of the President and his
families throughout their natural lifetimes as approved by the
national military and police authority Vice President.
Law __ Evidence
Prof. Avena
'4. The AFP and the Philippine National Police (PNP) shall
function under the Vice President as national military and police
authorities.
'5. Both parties request the impeachment court to open the
second envelope in the impeachment trial, the contents of which
shall be offered as proof that the subject savings account does
not belong to the President.
The Vice President shall issue a public statement in the form and
tenor provided for in Annex "B" heretofore attached to this
agreement.
14. HEARSAY
Page 76 of 149
But I immediately instruct Macel to delete the first provision on

resignation since this matter is already moot and academic.
Within moments, Macel erases the first provision and faxes the
documents, which have been signed by myself, Dondon and
Macel, to Nene Pimentel and General Reyes.
I direct Demaree Ravel to rush the original document to General
Reyes for the signatures of the other side, as it is important that
the provisions on security, at least, should be respected.
I then advise the President that the Supreme Court has ruled that
Chief Justice Davide will administer the oath to Gloria at 12 noon.
11:20 a.m. I am all set to fax General Reyes and Nene Pimentel
our agreement, signed by our side and awaiting the signature of
the United opposition.
The President is too stunned for words:
And then it happens. General Reyes calls me to say that the

Supreme Court has decided that Gloria Macapagal-Arroyo is
President and will be sworn in at 12 noon.
12 noon Gloria takes her oath as president of the Republic of

the Philippines.
'Bakit hindi naman kayo nakahintay? Paano na ang agreement

(why couldn't you wait? What about the agreement)?' I asked.
Reyes answered: 'Wala na, sir (it's over, sir).'
Final meal
12:20 p.m. The PSG distributes firearms to some people inside

the compound.
The president is having his final meal at the presidential
Residence with the few friends and Cabinet members who have
gathered.
I ask him: Di yung transition period, moot and academic na?'

And General Reyes answers: ' Oo nga, I delete na natin, sir (yes,
we're deleting the part).'
Contrary to subsequent reports, I do not react and say that there
was a double cross.
By this time, demonstrators have already broken down the first

line of defense at Mendiola. Only the PSG is there to protect the
Palace, since the police and military have already withdrawn
their support for the President.
1 p.m. The President's personal staff is rushing to pack as many
of the Estrada family's personal possessions as they can.
Law __ Evidence
Prof. Avena
During lunch, Ronnie Puno mentions that the president needs to

release a final statement before leaving Malacaang.
The statement reads: At twelve o'clock noon today, Vice
President Gloria Macapagal-Arroyo took her oath as President of
the Republic of the Philippines. While along with many other
legal minds of our country, I have strong and serious doubts
about the legality and constitutionality of her proclamation as
President, I do not wish to be a factor that will prevent the
restoration of unity and order in our civil society.
It is for this reason that I now leave Malacaang Palace, the seat
of the presidency of this country, for the sake of peace and in
order to begin the healing process of our nation. I leave the
Palace of our people with gratitude for the opportunities given to
me for service to our people. I will not shirk from any future
challenges that may come ahead in the same service of our
country.
I call on all my supporters and followers to join me in the
promotion of a constructive national spirit of reconciliation and
solidarity.
May the Almighty bless our country and our beloved people.
MABUHAY!"'
It was curtain time for the petitioner.
In sum, we hold that the resignation of the petitioner cannot be doubted.
It was confirmed by his leaving Malacaang. In the press release
containing his final statement, (1) he acknowledged the oath-taking of
the respondent as President of the Republic albeit with reservation
about its legality; (2) he emphasized he was leaving the Palace, the seat
14. HEARSAY
Page 77 of 149
of the presidency, for the sake of peace and in order to begin the healing
process of our nation. He did not say he was leaving the Palace due to
any kind inability and that he was going to re-assume the presidency as
soon as the disability disappears: (3) he expressed his gratitude to the
people for the opportunity to serve them. Without doubt, he was
referring to the past opportunity given him to serve the people as
President (4) he assured that he will not shirk from any future challenge
that may come ahead in the same service of our country. Petitioner's
reference is to a future challenge after occupying the office of the
president which he has given up; and (5) he called on his supporters to
join him in the promotion of a constructive national spirit of
reconciliation and solidarity. Certainly, the national spirit of
reconciliation and solidarity could not be attained if he did not give up
the presidency. The press release was petitioner's valedictory, his final
act of farewell. His presidency is now in the part tense.
It is, however, urged that the petitioner did not resign but only took a
temporary leave dated January 20, 2001 of the petitioner sent to Senate
President Pimentel and Speaker Fuentebella is cited. Again, we refer to
the said letter, viz:
"Sir.
By virtue of the provisions of Section II, Article VII of the
Constitution, I am hereby transmitting this declaration that I am
unable to exercise the powers and duties of my office. By
operation of law and the Constitution, the Vice President shall be
the Acting president.
(Sgd.) Joseph Ejercito Estrada"
To say the least, the above letter is wrapped in mystery.91 The pleadings
filed by the petitioner in the cases at bar did not discuss, may even
intimate, the circumstances that led to its preparation. Neither did the
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counsel of the petitioner reveal to the Court these circumstances during

the oral argument. It strikes the Court as strange that the letter, despite
its legal value, was never referred to by the petitioner during the weeklong crisis. To be sure, there was not the slightest hint of its existence
when he issued his final press release. It was all too easy for him to tell
the Filipino people in his press release that he was temporarily unable to
govern and that he was leaving the reins of government to respondent
Arroyo for the time bearing. Under any circumstance, however, the
mysterious letter cannot negate the resignation of the petitioner. If it
was prepared before the press release of the petitioner clearly as a later
act. If, however, it was prepared after the press released, still, it
commands scant legal significance. Petitioner's resignation from the
presidency cannot be the subject of a changing caprice nor of a
whimsical will especially if the resignation is the result of his reputation
by the people. There is another reason why this Court cannot given any
legal significance to petitioner's letter and this shall be discussed in issue
number III of this Decision.
After petitioner contended that as a matter of fact he did not resign, he
also argues that he could not resign as a matter of law. He relies on
section 12 of RA No. 3019, otherwise known as the Anti-graft and
Corrupt Practices Act, which allegedly prohibits his resignation, viz:
"Sec. 12. No public officer shall be allowed to resign or retire
pending an investigation, criminals or administrative, or pending
a prosecution against him, for any offense under this Act or
under the provisions of the Revised Penal Code on bribery."
A reading of the legislative history of RA No. 3019 will hardly provide
any comfort to the petitioner. RA No. 3019 originated form Senate Bill
No. 293. The original draft of the bill, when it was submitted to the
Senate, did not contain a provision similar to section 12 of the law as it
now stands. However, in his sponsorship speech, Senator Arturo
Tolentino, the author of the bill, "reserved to propose during the period
14. HEARSAY
Page 78 of 149
of amendments the inclusion of a provision to the effect that no public

official who is under prosecution for any act of graft or corruption, or is
under administrative investigation, shall be allowed to voluntarily resign
or retire."92 During the period of amendments, the following provision
was inserted as section 15:
"Sec. 15. Termination of office No public official shall be
allowed to resign or retire pending an investigation, criminal or
administrative, or pending a prosecution against him, for any
offense under the Act or under the provisions of the Revised
Penal Code on bribery.
The separation or cessation of a public official form office shall
not be a bar to his prosecution under this Act for an offense
committed during his incumbency."93
The bill was vetoed by then President Carlos P. Garcia who questioned
the legality of the second paragraph of the provision and insisted that
the President's immunity should extend after his tenure.
Senate Bill No. 571, which was substantially similar Senate Bill No. 293,
was thereafter passed. Section 15 above became section 13 under the
new bill, but the deliberations on this particular provision mainly
focused on the immunity of the President, which was one of the reasons
for the veto of the original bill. There was hardly any debate on the
prohibition against the resignation or retirement of a public official with
pending criminal and administrative cases against him. Be that as it may,
the intent of the law ought to be obvious. It is to prevent the act of
resignation or retirement from being used by a public official as a
protective shield to stop the investigation of a pending criminal or
administrative case against him and to prevent his prosecution under
the Anti-Graft Law or prosecution for bribery under the Revised Penal
Code. To be sure, no person can be compelled to render service for that
would be a violation of his constitutional right.94 A public official has the
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14. HEARSAY
right not to serve if he really wants to retire or resign. Nevertheless, if at

the time he resigns or retires, a public official is facing administrative or
criminal investigation or prosecution, such resignation or retirement
will not cause the dismissal of the criminal or administrative
proceedings against him. He cannot use his resignation or retirement to
avoid prosecution.
There is another reason why petitioner's contention should be rejected.
In the cases at bar, the records show that when petitioner resigned on
January 20, 2001, the cases filed against him before the Ombudsman
were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and
0-00-1758. While these cases have been filed, the respondent
Ombudsman refrained from conducting the preliminary investigation of
the petitioner for the reason that as the sitting President then, petitioner
was immune from suit. Technically, the said cases cannot be considered
as pending for the Ombudsman lacked jurisdiction to act on them.
Section 12 of RA No. 3019 cannot therefore be invoked by the petitioner
for it contemplates of cases whose investigation or prosecution do not
suffer from any insuperable legal obstacle like the immunity from suit of
a sitting President.
Petitioner contends that the impeachment proceeding is an
administrative investigation that, under section 12 of RA 3019, bars him
from resigning. We hold otherwise. The exact nature of an impeachment
proceeding is debatable. But even assuming arguendo that it is an
administrative proceeding, it can not be considered pending at the time
petitioner resigned because the process already broke down when a
majority of the senator-judges voted against the opening of the second
envelope, the public and private prosecutors walked out, the public
prosecutors filed their Manifestation of Withdrawal of Appearance, and
the proceedings were postponed indefinitely. There was, in effect, no
impeachment case pending against petitioner when he resigned.
III
Page 79 of 149
Whether or not the petitioner Is only temporarily unable to Act as

President.
We shall now tackle the contention of the petitioner that he is merely
temporarily unable to perform the powers and duties of the presidency,
and hence is a President on leave. As aforestated, the inability claim is
contained in the January 20, 2001 letter of petitioner sent on the same
day to Senate President Pimentel and Speaker Fuentebella.
Petitioner postulates that respondent Arroyo as Vice President has no
power to adjudge the inability of the petitioner to discharge the powers
and duties of the presidency. His significant submittal is that "Congress
has the ultimate authority under the Constitution to determine whether
the President is incapable of performing his functions in the manner
provided for in section 11 of article VII."95 This contention is the
centerpiece of petitioner's stance that he is a President on leave and
respondent Arroyo is only an Acting President.
An examination of section 11, Article VII is in order. It provides:
"SEC. 11. Whenever the President transmits to the President of
the Senate and the Speaker of the House of Representatives his
written declaration that he is unable to discharge the powers and
duties of his office, and until he transmits to them a written
declaration to the contrary, such powers and duties shall be
discharged by the Vice-President as Acting President.
Whenever a majority of all the Members of the Cabinet transmit
to the President of the Senate and to the Speaker of the House of
Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the VicePresident shall immediately assume the powers and duties of the
office as Acting President.
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Thereafter, when the President transmits to the President of the

Senate and to the Speaker of the House of Representatives his
written declaration that no inability exists, he shall reassume the
powers and duties of his office. Meanwhile, should a majority of
all the Members of the Cabinet transmit within five days to the
President of the Senate and to the Speaker of the House of
Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the
Congress shall decide the issue. For that purpose, the Congress
shall convene, if it is not in session, within forty-eight hours, in
accordance with its rules and without need of call.
If the Congress, within ten days after receipt of the last written
declaration, or, if not in session, within twelve days after it is
required to assemble, determines by a two-thirds vote of both
Houses, voting separately, that the President is unable to
discharge the powers and duties of his office, the Vice-President
shall act as President; otherwise, the President shall continue
exercising the powers and duties of his office."
That is the law. Now, the operative facts:
1. Petitioner, on January 20, 2001, sent the above letter
claiming inability to the Senate President and Speaker of
the House;
2. Unaware of the letter, respondent Arroyo took her oath
of office as President on January 20, 2001 at about 12:30
p.m.;
3. Despite receipt of the letter, the House of
Representatives passed on January 24, 2001 House
Resolution No. 175;96
On the same date, the House of the Representatives passed House
Resolution No. 17697 which states:
14. HEARSAY
Page 80 of 149
"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF

REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE
PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER
ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF THE
NATION'S GOALS UNDER THE CONSTITUTION
WHEREAS, as a consequence of the people's loss of confidence
on the ability of former President Joseph Ejercito Estrada to
effectively govern, the Armed Forces of the Philippines, the
Philippine National Police and majority of his cabinet had
withdrawn support from him;
WHEREAS, upon authority of an en banc resolution of the
Supreme Court, Vice President Gloria Macapagal-Arroyo was
sworn in as President of the Philippines on 20 January 2001
before Chief Justice Hilario G. Davide, Jr.;
WHEREAS, immediately thereafter, members of the international
community had extended their recognition to Her Excellency,
Gloria Macapagal-Arroyo as President of the Republic of the
Philippines;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo
has espoused a policy of national healing and reconciliation with
justice for the purpose of national unity and development;
WHEREAS, it is axiomatic that the obligations of the government
cannot be achieved if it is divided, thus by reason of the
constitutional duty of the House of Representatives as an
institution and that of the individual members thereof of fealty to
the supreme will of the people, the House of Representatives
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must ensure to the people a stable, continuing government and

therefore must remove all obstacles to the attainment thereof;
WHEREAS, it is a concomitant duty of the House of
Representatives to exert all efforts to unify the nation, to
eliminate fractious tension, to heal social and political wounds,
and to be an instrument of national reconciliation and solidarity
as it is a direct representative of the various segments of the
whole nation;
WHEREAS, without surrending its independence, it is vital for
the attainment of all the foregoing, for the House of
Representatives to extend its support and collaboration to the
administration of Her Excellency, President Gloria MacapagalArroyo, and to be a constructive partner in nation-building, the
national interest demanding no less: Now, therefore, be it
Resolved by the House of Representatives, To express its support
to the assumption into office by Vice President Gloria MacapagalArroyo as President of the Republic of the Philippines, to extend
its congratulations and to express its support for her
administration as a partner in the attainment of the Nation's
goals under the Constitution.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of Representatives on
January 24, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
14. HEARSAY
Page 81 of 149
On February 7, 2001, the House of the Representatives passed House

Resolution No. 17898 which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGALARROYO'S NOMINATION OF SENATOR TEOFISTO T. GUINGONA,
JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is a vacancy in the Office of the Vice President
due to the assumption to the Presidency of Vice President Gloria
Macapagal-Arroyo;
WHEREAS, pursuant to Section 9, Article VII of the Constitution,
the President in the event of such vacancy shall nominate a Vice
President from among the members of the Senate and the House
of Representatives who shall assume office upon confirmation by
a majority vote of all members of both Houses voting separately;
has nominated Senate Minority Leader Teofisto T. Guingona Jr.,
to the position of Vice President of the Republic of the
Philippines;
WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant
endowed with integrity, competence and courage; who has
served the Filipino people with dedicated responsibility and
patriotism;
WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling
qualities of true statesmanship, having served the government in
various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on
Audit, Executive Secretary, Secretary of Justice, Senator of the
Philippines qualities which merit his nomination to the
position of Vice President of the Republic: Now, therefore, be it
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Prof. Avena
14. HEARSAY
Resolved as it is hereby resolved by the House of Representatives,

That the House of Representatives confirms the nomination of
Senator Teofisto T. Guingona, Jr. as the Vice President of the
Republic of the Philippines.
Page 82 of 149
WHEREFORE, we recognize and express support to the new

government of President Gloria Macapagal-Arroyo and resolve to
discharge and overcome the nation's challenges." 99
On February 7, the Senate also passed Senate Resolution No.
82100 which states:
Adopted,
Speaker
February 7, 2001.
Secretary General"
(4) Also, despite receipt of petitioner's letter claiming inability,
some twelve (12) members of the Senate signed the following:
"RESOLUTION
WHEREAS, the recent transition in government offers the nation
an opportunity for meaningful change and challenge;
WHEREAS, to attain desired changes and overcome awesome
challenges the nation needs unity of purpose and resolve
cohesive resolute (sic) will;
WHEREAS, the Senate of the Philippines has been the forum for
vital legislative measures in unity despite diversities in
perspectives;
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL

ARROYO'S NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR.
AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is vacancy in the Office of the Vice President
due to the assumption to the Presidency of Vice President Gloria
Macapagal-Arroyo;
WHEREAS, pursuant to Section 9 Article VII of the Constitution,
the President in the event of such vacancy shall nominate a Vice
President from among the members of the Senate and the House
of Representatives who shall assume office upon confirmation by
a majority vote of all members of both Houses voting separately;
has nominated Senate Minority Leader Teofisto T. Guingona, Jr.
to the position of Vice President of the Republic of the
Philippines;
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant
endowed with integrity, competence and courage; who has
served the Filipino people with dedicated responsibility and
patriotism;
WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling
qualities of true statemanship, having served the government in
various capacities, among others, as Delegate to the
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Constitutional Convention, Chairman of the Commission on

Audit, Executive Secretary, Secretary of Justice, Senator of the
land - which qualities merit his nomination to the position of
Vice President of the Republic: Now, therefore, be it
Resolved, as it is hereby resolved, That the Senate confirm the
nomination of Sen. Teofisto T. Guingona, Jr. as Vice President of
the Republic of the Philippines.
14. HEARSAY
Page 83 of 149
Resolved, further, That the records of the Impeachment Court

including the "second envelope" be transferred to the Archives of
the Senate for proper safekeeping and preservation in
accordance with the Rules of the Senate. Disposition and
retrieval thereof shall be made only upon written approval of the
Senate president.
Resolved, finally. That all parties concerned be furnished copies
of this Resolution.
Adopted,
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL JR.
President of the Senate
(Sgd.) AQUILINO Q. PIMENTEL, JR.

President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.

This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
On the same date, February 7, the Senate likewise passed
Senate Resolution No. 83101 which states:
"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT
IS FUNCTUS OFFICIO
Resolved, as it is hereby resolved. That the Senate recognize that
the Impeachment Court is functus officio and has been
terminated.
Resolved, further, That the Journals of the Impeachment Court on
Monday, January 15, Tuesday, January 16 and Wednesday,
January 17, 2001 be considered approved.
(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"
(5) On February 8, the Senate also passed Resolution No. 84 "certifying
to the existence of vacancy in the Senate and calling on the COMELEC to
fill up such vacancy through election to be held simultaneously with the
regular election on May 14, 2001 and the Senatorial candidate garnering
the thirteenth (13th) highest number of votes shall serve only for the
unexpired term of Senator Teofisto T. Guingona, Jr.'
(6) Both houses of Congress started sending bills to be signed into
law by respondent Arroyo as President.
(7) Despite the lapse of time and still without any functioning Cabinet,
without any recognition from any sector of government, and without any
support from the Armed Forces of the Philippines and the Philippine
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Prof. Avena
14. HEARSAY
National Police, the petitioner continues to claim that his inability to

govern is only momentary.
What leaps to the eye from these irrefutable facts is that both
houses of Congress have recognized respondent Arroyo as the
President. Implicitly clear in that recognition is the premise that
the inability of petitioner Estrada. Is no longer temporary. Congress
has clearly rejected petitioner's claim of inability.
The question is whether this Court has jurisdiction to review the
claim of temporary inability of petitioner Estrada and thereafter
revise the decision of both Houses of Congress recognizing
respondent Arroyo as president of the Philippines. Following Taada v.
Cuenco,102 we hold that this Court cannot exercise its judicial power or
this is an issue "in regard to which full discretionary authority has been
delegated to the Legislative xxx branch of the government." Or to use the
language in Baker vs. Carr,103 there is a "textually demonstrable or a
lack of judicially discoverable and manageable standards for resolving
it." Clearly, the Court cannot pass upon petitioner's claim of inability to
discharge the power and duties of the presidency. The question is
political in nature and addressed solely to Congress by
constitutional fiat. It is a political issue, which cannot be decided by this
Court without transgressing the principle of separation of powers.
In fine, even if the petitioner can prove that he did not resign, still,
he cannot successfully claim that he is a President on leave on the
ground that he is merely unable to govern temporarily. That claim
has been laid to rest by Congress and the decision that respondent
Arroyo is the de jure, president made by a co-equal branch of
government cannot be reviewed by this Court.
IV
Whether or not the petitioner enjoys immunity from suit.
Page 84 of 149
Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against
him before the respondent Ombudsman should be prohibited because he
has not been convicted in the impeachment proceedings against him;
and second, he enjoys immunity from all kinds of suit, whether
criminal or civil.
Before resolving petitioner's contentions, a revisit of our legal history
executive immunity will be most enlightening. The doctrine of executive
immunity in this jurisdiction emerged as a case law. In the 1910 case of
Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a
Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General
of the Philippine Islands. J.E. Harding and C.R. Trowbridge, Chief of
Police and Chief of the Secret Service of the City of Manila, respectively,
for damages for allegedly conspiring to deport him to China. In granting
a writ of prohibition, this Court, speaking thru Mr. Justice Johnson, held:
" The principle of nonliability, as herein enunciated, does not
mean that the judiciary has no authority to touch the acts of the
Governor-General; that he may, under cover of his office, do what
he will, unimpeded and unrestrained. Such a construction would
mean that tyranny, under the guise of the execution of the law,
could walk defiantly abroad, destroying rights of person and of
property, wholly free from interference of courts or legislatures.
This does not mean, either that a person injured by the executive
authority by an act unjustifiable under the law has n remedy, but
must submit in silence. On the contrary, it means, simply, that the
governors-general, like the judges if the courts and the members
of the Legislature, may not be personally mulcted in civil
damages for the consequences of an act executed in the
performance of his official duties. The judiciary has full power to,
and will, when the mater is properly presented to it and the
occasion justly warrants it, declare an act of the Governor-
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General illegal and void and place as nearly as possible in status

quo any person who has been deprived his liberty or his
property by such act. This remedy is assured to every person,
however humble or of whatever country, when his personal or
property rights have been invaded, even by the highest authority
of the state. The thing which the judiciary can not do is mulct the
Governor-General personally in damages which result from the
performance of his official duty, any more than it can a member
of the Philippine Commission of the Philippine Assembly. Public
policy forbids it.
Neither does this principle of nonliability mean that the chief
executive may not be personally sued at all in relation to acts
which he claims to perform as such official. On the contrary, it
clearly appears from the discussion heretofore had, particularly
that portion which touched the liability of judges and drew an
analogy between such liability and that of the Governor-General,
that the latter is liable when he acts in a case so plainly outside of
his power and authority that he can not be said to have exercised
discretion in determining whether or not he had the right to act.
What is held here is that he will be protected from personal
liability for damages not only when he acts within his authority,
but also when he is without authority, provided he actually used
discretion and judgement, that is, the judicial faculty, in
determining whether he had authority to act or not. In other
words, in determining the question of his authority. If he decide
wrongly, he is still protected provided the question of his
authority was one over which two men, reasonably qualified for
that position, might honestly differ; but he s not protected if the
lack of authority to act is so plain that two such men could not
honestly differ over its determination. In such case, be acts, not
as Governor-General but as a private individual, and as such
must answer for the consequences of his act."
14. HEARSAY
Page 85 of 149
Mr. Justice Johnson underscored the consequences if the Chief Executive

was not granted immunity from suit, viz "xxx. Action upon important
matters of state delayed; the time and substance of the chief executive
spent in wrangling litigation; disrespect engendered for the person of
one of the highest officials of the state and for the office he occupies; a
tendency to unrest and disorder resulting in a way, in distrust as to the
integrity of government itself."105
Our 1935 Constitution took effect but it did not contain any specific
provision on executive immunity. Then came the tumult of the martial
law years under the late President Ferdinand E. Marcos and the 1973
Constitution was born. In 1981, it was amended and one of the
amendments involved executive immunity. Section 17, Article VII stated:
"The President shall be immune from suit during his tenure.
Thereafter, no suit whatsoever shall lie for official acts done by
him or by others pursuant to his specific orders during his
tenure.
The immunities herein provided shall apply to the incumbent
President referred to in Article XVII of this Constitution.
In his second Vicente G. Sinco professional Chair lecture entitled,
"Presidential Immunity and All The King's Men: The Law of Privilege As
a Defense To Actions For Damages,"106 petitioner's learned counsel,
former Dean of the UP College of Law, Atty. Pacificao Agabin, brightened
the modifications effected by this constitutional amendment on the
existing law on executive privilege. To quote his disquisition:
"In the Philippines, though, we sought to do the Americans one
better by enlarging and fortifying the absolute immunity
concept. First, we extended it to shield the President not only
form civil claims but also from criminal cases and other claims.
Second, we enlarged its scope so that it would cover even acts of
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the President outside the scope of official duties. And third, we

broadened its coverage so as to include not only the President
but also other persons, be they government officials or private
individuals, who acted upon orders of the President. It can be
said that at that point most of us were suffering from AIDS (or
absolute immunity defense syndrome)."
The Opposition in the then Batasan Pambansa sought the repeal of this
Marcosian concept of executive immunity in the 1973 Constitution. The
move was led by them Member of Parliament, now Secretary of Finance,
Alberto Romulo, who argued that the after incumbency immunity
granted to President Marcos violated the principle that a public office is
a public trust. He denounced the immunity as a return to the
anachronism "the king can do no wrong."107 The effort failed.
The 1973 Constitution ceased to exist when President Marcos was
ousted from office by the People Power revolution in 1986. When the
1987 Constitution was crafted, its framers did not reenact the executive
immunity provision of the 1973 Constitution. The following explanation
was given by delegate J. Bernas vis:108
"Mr. Suarez. Thank you.
The last question is with reference to the Committee's omitting
in the draft proposal the immunity provision for the President. I
agree with Commissioner Nolledo that the Committee did very
well in striking out second sentence, at the very least, of the
original provision on immunity from suit under the 1973
Constitution. But would the Committee members not agree to a
restoration of at least the first sentence that the President shall
be immune from suit during his tenure, considering that if we do
not provide him that kind of an immunity, he might be spending
all his time facing litigation's, as the President-in-exile in Hawaii
is now facing litigation's almost daily?
14. HEARSAY
Page 86 of 149
Fr. Bernas. The reason for the omission is that we consider it

understood in present jurisprudence that during his tenure he is
immune from suit.
Mr. Suarez. So there is no need to express it here.
Fr. Bernas. There is no need. It was that way before. The only
innovation made by the 1973 Constitution was to make that
explicit and to add other things.
Mr. Suarez. On that understanding, I will not press for any more
query, Madam President.
I think the Commissioner for the clarifications."
We shall now rule on the contentions of petitioner in the light of this
history. We reject his argument that he cannot be prosecuted for the
reason that he must first be convicted in the impeachment proceedings.
The impeachment trial of petitioner Estrada was aborted by the walkout
of the prosecutors and by the events that led to his loss of the
presidency. Indeed, on February 7, 2001, the Senate passed Senate
Resolution No. 83 "Recognizing that the Impeachment Court is Functus
Officio."109 Since, the Impeachment Court is now functus officio, it is
untenable for petitioner to demand that he should first be impeached
and then convicted before he can be prosecuted. The plea if granted,
would put a perpetual bar against his prosecution. Such a submission
has nothing to commend itself for it will place him in a better situation
than a non-sitting President who has not been subjected to
impeachment proceedings and yet can be the object of a criminal
prosecution. To be sure, the debates in the Constitutional Commission
make it clear that when impeachment proceedings have become moot
due to the resignation of the President, the proper criminal and civil
cases may already be filed against him, viz:110
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Prof. Avena
14. HEARSAY
"xxx
Mr. Aquino. On another point, if an impeachment proceeding has

been filed against the President, for example, and the President
resigns before judgement of conviction has been rendered by the
impeachment court or by the body, how does it affect the
impeachment proceeding? Will it be necessarily dropped?
Mr. Romulo. If we decide the purpose of impeachment to remove
one from office, then his resignation would render the case moot
and academic. However, as the provision says, the criminal and
civil aspects of it may continue in the ordinary courts."
This is in accord with our ruling In Re: Saturnino Bermudez111 that
'incumbent Presidents are immune from suit or from being brought to
court during the period of their incumbency and tenure" but not beyond.
Considering the peculiar circumstance that the impeachment process
against the petitioner has been aborted and thereafter he lost the
presidency, petitioner Estrada cannot demand as a condition sine qua
non to his criminal prosecution before the Ombudsman that he be
convicted in the impeachment proceedings. His reliance on the case of
Lecaroz vs. Sandiganbayan112 and related cases113 are inapropos for they
have a different factual milieu.
We now come to the scope of immunity that can be claimed by petitioner
as a non-sitting President. The cases filed against petitioner Estrada are
criminal in character. They involve plunder, bribery and graft and
corruption. By no stretch of the imagination can these crimes, especially
plunder which carries the death penalty, be covered by the alleged
mantle of immunity of a non-sitting president. Petitioner cannot cite any
decision of this Court licensing the President to commit criminal acts and
wrapping him with post-tenure immunity from liability. It will be
anomalous to hold that immunity is an inoculation from liability for
unlawful acts and conditions. The rule is that unlawful acts of public
Page 87 of 149
officials are not acts of the State and the officer who acts illegally is not
acting as such but stands in the same footing as any trespasser.114
Indeed, critical reading of current literature on executive immunity will
reveal a judicial disinclination to expand the privilege especially when it
impedes the search for truth or impairs the vindication of a right. In the
1974 case of US v. Nixon,115 US President Richard Nixon, a sitting
President, was subpoenaed to produce certain recordings and
documents relating to his conversations with aids and advisers. Seven
advisers of President Nixon's associates were facing charges of
conspiracy to obstruct Justice and other offenses, which were committed
in a burglary of the Democratic National Headquarters in Washington's
Watergate Hotel during the 972 presidential campaign. President Nixon
himself was named an unindicted co-conspirator. President Nixon
moved to quash the subpoena on the ground, among others, that the
President was not subject to judicial process and that he should first be
impeached and removed from office before he could be made amenable
to judicial proceedings. The claim was rejected by the US Supreme Court.
It concluded that "when the ground for asserting privilege as to
subpoenaed materials sought for use in a criminal trial is based only on
the generalized interest in confidentiality, it cannot prevail over the
fundamental demands of due process of law in the fair administration of
criminal justice." In the 1982 case of Nixon v. Fitzgerald,116 the US
Supreme Court further held that the immunity of the president from civil
damages covers only "official acts." Recently, the US Supreme Court had
the occasion to reiterate this doctrine in the case of Clinton v. Jones117
where it held that the US President's immunity from suits for money
damages arising out of their official acts is inapplicable to unofficial
conduct.
There are more reasons not to be sympathetic to appeals to stretch the
scope of executive immunity in our jurisdiction. One of the great themes
of the 1987 Constitution is that a public office is a public trust.118 It
declared as a state policy that "the State shall maintain honesty and
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Prof. Avena
14. HEARSAY
integrity in the public service and take positive and effective measures
against graft and corruptio."119 it ordained that "public officers and
employees must at all times be accountable to the people, serve them
with utmost responsibility, integrity, loyalty, and efficiency act with
patriotism and justice, and lead modest lives."120 It set the rule that 'the
right of the State to recover properties unlawfully acquired by public
officials or employees, from them or from their nominees or transferees,
shall not be barred by prescription, latches or estoppel."121 It maintained
the Sandiganbayan as an anti-graft court.122 It created the office of the
Ombudsman and endowed it with enormous powers, among which is to
"investigate on its own, or on complaint by any person, any act or
omission of any public official, employee, office or agency, when such act
or omission appears to be illegal, unjust improper or inefficient."123 The
Office of the Ombudsman was also given fiscal autonomy.124 These
constitutional policies will be devalued if we sustain petitioner's claim
that a non-sitting president enjoys immunity from suit for criminal acts
committed during his incumbency.
V
Whether or not the prosecution of petitioner
Estrada should be enjoined due to prejudicial publicity
Petitioner also contends that the respondent Ombudsman should be
stopped from conducting the investigation of the cases filed against him
due to the barrage of prejudicial publicity on his guilt. He submits that
the respondent Ombudsman has developed bias and is all set file the
criminal cases violation of his right to due process.
There are two (2) principal legal and philosophical schools of thought on
how to deal with the rain of unrestrained publicity during the
investigation and trial of high profile cases.125 The British approach the
problem with the presumption that publicity will prejudice a jury. Thus,
Page 88 of 149
English courts readily stay and stop criminal trials when the right of an
accused to fair trial suffers a threat.126 The American approach is
different. US courts assume a skeptical approach about the potential
effect of pervasive publicity on the right of an accused to a fair trial. They
have developed different strains of tests to resolve this issue, i.e.,
substantial; probability of irreparable harm, strong likelihood, clear and
present danger, etc.
This is not the first time the issue of trial by publicity has been raised in
this Court to stop the trials or annul convictions in high profile criminal
cases.127 In People vs. Teehankee, Jr.,128 later reiterated in the case of
Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that:
"We cannot sustain appellant's claim that he was denied the right
to impartial trial due to prejudicial publicity. It is true that the
print and broadcast media gave the case at bar pervasive
publicity, just like all high profile and high stake criminal trials.
Then and now, we rule that the right of an accused to a fair trial
is not incompatible to a free press. To be sure, responsible
reporting enhances accused's right to a fair trial for, as well
pointed out, a responsible press has always been regarded as the
criminal field xxx. The press does not simply publish information
about trials but guards against the miscarriage of justice by
subjecting the police, prosecutors, and judicial processes to
extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of an
accused to fair trial. The mere fact that the trial of appellant was
given a day-to-day, gavel-to-gavel coverage does not by itself
prove that the publicity so permeated the mind of the trial judge
and impaired his impartiality. For one, it is impossible to seal the
minds of members of the bench from pre-trial and other offcourt publicity of sensational criminal cases. The state of the art
of our communication system brings news as they happen
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Prof. Avena
straight to our breakfast tables and right to our bedrooms. These

news form part of our everyday menu of the facts and fictions of
life. For another, our idea of a fair and impartial judge is not that
of a hermit who is out of touch with the world. We have not
installed the jury system whose members are overly protected
from publicity lest they lose there impartially. xxx xxx xxx. Our
judges are learned in the law and trained to disregard off-court
evidence and on-camera performances of parties to litigation.
Their mere exposure to publications and publicity stunts does
not per se fatally infect their impartiality.
At best, appellant can only conjure possibility of prejudice on the
part of the trial judge due to the barrage of publicity that
characterized the investigation and trial of the case. In Martelino,
et al. v. Alejandro, et al., we rejected this standard of possibility of
prejudice and adopted the test of actual prejudice as we ruled
that to warrant a finding of prejudicial publicity, there must be
allegation and proof that the judges have been unduly influenced,
not simply that they might be, by the barrage of publicity. In the
case at a bar, the records do not show that the trial judge
developed actual bias against appellants as a consequence of the
extensive media coverage of the pre-trial and trial of his case.
The totality of circumstances of the case does not prove that the
trial judge acquired a fixed opinion as a result of prejudicial
publicity, which is incapable of change even by evidence
presented during the trial. Appellant has the burden to prove this
actual bias and he has not discharged the burden.'
We expounded further on this doctrine in the subsequent case of Webb
vs. Hon. Raul de Leon, etc.130 and its companion cases, viz:
"Again petitioners raise the effect of prejudicial publicity on their
right to due process while undergoing preliminary investigation.
We find no procedural impediment to its early invocation
14. HEARSAY
Page 89 of 149
considering the substantial risk to their liberty while undergoing

a preliminary investigation.
xxx
The democratic settings, media coverage of trials of sensational
cases cannot be avoided and oftentimes, its excessiveness has
been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the
high volume and high velocity of publicity that attended the
preliminary investigation of the case at bar. Our daily diet of facts
and fiction about the case continues unabated even today.
Commentators still bombard the public with views not too many
of which are sober and sublime. Indeed, even the principal actors
in the case the NBI, the respondents, their lawyers and their
sympathizers have participated in this media blitz. The
possibility of media abuses and their threat to a fair trial
notwithstanding, criminal trials cannot be completely closed to
the press and public. In the seminal case of Richmond
Newspapers, Inc. v. Virginia, it was
xxx
a. The historical evidence of the evolution of the criminal
trial in Anglo-American justice demonstrates
conclusively that at the time this Nation's organic laws
were adopted, criminal trials both here and in England
had long been presumptively open, thus giving assurance
that the proceedings were conducted fairly to all
concerned and discouraging perjury, the misconduct of
participants, or decisions based on secret bias or
partiality. In addition, the significant community
therapeutic value of public trials was recognized when a
shocking crime occurs a community reaction of outrage
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Prof. Avena
and public protest often follows, and thereafter the open

processes of justice serve an important prophylactic
purpose, providing an outlet for community concern,
hostility and emotion. To work effectively, it is important
that society's criminal process satisfy the appearance of
justice,' Offutt v. United States, 348 US 11, 14, 99 L ED 11,
75 S Ct 11, which can best be provided by allowing
people to observe such process. From this unbroken,
uncontradicted history, supported by reasons as valid
today as in centuries past, it must be concluded that a
presumption of openness inheres in the very nature of a
criminal trial under this Nation's system of justice, Cf.,
e,g., Levine v. United States, 362 US 610, 4 L Ed 2d 989,
80 S Ct 1038.
b. The freedoms of speech. Press and assembly, expressly
guaranteed by the First Amendment, share a common
core purpose of assuring freedom of communication on
matters relating to the functioning of government. In
guaranteeing freedom such as those of speech and press,
the First Amendment can be read as protecting the right
of everyone to attend trials so as give meaning to those
explicit guarantees; the First Amendment right to receive
information and ideas means, in the context of trials, that
the guarantees of speech and press, standing alone,
prohibit government from summarily closing courtroom
doors which had long been open to the public at the time
the First Amendment was adopted. Moreover, the right of
assembly is also relevant, having been regarded not only
as an independent right but also as a catalyst to augment
the free exercise of the other First Amendment rights
with which the draftsmen deliberately linked it. A trial
courtroom is a public place where the people generally
and representatives of the media have a right to be
present, and where their presence historically has been
14. HEARSAY
Page 90 of 149
thought to enhance the integrity and quality of what
takes place.
c. Even though the Constitution contains no provision
which be its terms guarantees to the public the right to
attend criminal trials, various fundamental rights, not
expressly guaranteed, have been recognized as
indispensable to the enjoyment of enumerated rights.
The right to attend criminal trial is implicit in the
guarantees of the First Amendment: without the freedom
to attend such trials, which people have exercised for
centuries, important aspects of freedom of speech and of
the press be eviscerated.
Be that as it may, we recognize that pervasive and prejudicial

publicity under certain circumstances can deprive an accused of
his due process right to fair trial. Thus, in Martelino, et al. vs.
Alejandro, et al., we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges
have been unduly influenced, not simply that they might be, by
the barrage of publicity. In the case at bar, we find nothing in the
records that will prove that the tone and content of the publicity
that attended the investigation of petitioners fatally infected the
fairness and impartiality of the DOJ Panel. Petitioners cannot just
rely on the subliminal effects of publicity on the sense of fairness
of the DOJ Panel, for these are basically unbeknown and beyond
knowing. To be sure, the DOJ Panel is composed of an Assistant
Chief State Prosecutor and Senior State Prosecutors. Their long
experience in criminal investigation is a factor to consider in
determining whether they can easily be blinded by the klieg
lights of publicity. Indeed, their 26-page Resolution carries no
indubitable indicia of bias for it does not appear that they
considered any extra-record evidence except evidence properly
adduced by the parties. The length of time the investigation was
conducted despite its summary nature and the generosity with
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Prof. Avena
which they accommodated the discovery motions of petitioners

speak well of their fairness. At no instance, we note, did
petitioners seek the disqualification of any member of the DOJ
Panel on the ground of bias resulting from their bombardment of
prejudicial publicity." (emphasis supplied)
Applying the above ruling, we hold that there is not enough evidence
to warrant this Court to enjoin the preliminary investigation of the
petitioner by the respondent Ombudsman. Petitioner needs to offer
more than hostile headlines to discharge his burden of proof.131 He
needs to show more weighty social science evidence to successfully
prove the impaired capacity of a judge to render a bias-free decision.
Well to note, the cases against the petitioner are still undergoing
preliminary investigation by a special panel of prosecutors in the office
of the respondent Ombudsman. No allegation whatsoever has been
made by the petitioner that the minds of the members of this special
panel have already been infected by bias because of the pervasive
prejudicial publicity against him. Indeed, the special panel has yet to
come out with its findings and the Court cannot second guess whether
its recommendation will be unfavorable to the petitioner.1wphi1.nt
The records show that petitioner has instead charged respondent
Ombudsman himself with bias. To quote petitioner's submission, the
respondent Ombudsman "has been influenced by the barrage of slanted
news reports, and he has buckled to the threats and pressures directed
at him by the mobs."132 News reports have also been quoted to establish
that the respondent Ombudsman has already prejudged the cases of the
petitioner133 and it is postulated that the prosecutors investigating the
petitioner will be influenced by this bias of their superior.
Again, we hold that the evidence proffered by the petitioner is
insubstantial. The accuracy of the news reports referred to by the
petitioner cannot be the subject of judicial notice by this Court especially
in light of the denials of the respondent Ombudsman as to his alleged
14. HEARSAY
Page 91 of 149
prejudice and the presumption of good faith and regularity in the

performance of official duty to which he is entitled. Nor can we adopt
the theory of derivative prejudice of petitioner, i.e., that the
prejudice of respondent Ombudsman flows to his subordinates. In
truth, our Revised Rules of Criminal Procedure, give investigation
prosecutors the independence to make their own findings and
recommendations albeit they are reviewable by their superiors.134 They
can be reversed but they can not be compelled cases which they believe
deserve dismissal. In other words, investigating prosecutors should not
be treated like unthinking slot machines. Moreover, if the respondent
Ombudsman resolves to file the cases against the petitioner and the
latter believes that the findings of probable cause against him is the
result of bias, he still has the remedy of assailing it before the proper
court.
VI.
Epilogue
A word of caution to the "hooting throng." The cases against the
petitioner will now acquire a different dimension and then move to a
new stage - - - the Office of the Ombudsman. Predictably, the call from
the majority for instant justice will hit a higher decibel while the
gnashing of teeth of the minority will be more threatening. It is the
sacred duty of the respondent Ombudsman to balance the right of the
State to prosecute the guilty and the right of an accused to a fair
investigation and trial which has been categorized as the "most
fundamental of all freedoms."135 To be sure, the duty of a prosecutor is
more to do justice and less to prosecute. His is the obligation to insure
that the preliminary investigation of the petitioner shall have a circusfree atmosphere. He has to provide the restraint against what Lord
Bryce calls "the impatient vehemence of the majority." Rights in a
democracy are not decided by the mob whose judgment is dictated by
rage and not by reason. Nor are rights necessarily resolved by the power
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Prof. Avena
14. HEARSAY
of number for in a democracy, the dogmatism of the majority is not and

should never be the definition of the rule of law. If democracy has
proved to be the best form of government, it is because it has respected
the right of the minority to convince the majority that it is wrong.
Tolerance of multiformity of thoughts, however offensive they may be, is
the key to man's progress from the cave to civilization. Let us not throw
away that key just to pander to some people's prejudice.
So help me God.
IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging

the respondent Gloria Macapagal-Arroyo as the de jure 14th President of
the Republic are DISMISSED.
66
SO ORDERED.
The complaint for impeachment was based on the following grounds:
bribery, graft and corruption, betrayal of public trust, and culpable
violation of the Constitution.
Page 92 of 149
(Annex I, Comment of the Ombudsman; Rollo, GR Nos. 146710-15, Vol. II,

p. 332)
See "Filipinas Despues de Cien Aos" (The Philippines a Century
Hence), p. 62.
65
The guaranty was taken from Amendment I of the US Constitution

which provides: "Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise thereof or
abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a
redress of grievance."
11
Those who voted "yes" to open the envelope were: Senators Pimentel,
Guingona, Drilon, Cayetano, Roco, Legarda, Magsaysay, Flavier, Biazon,
Osmea III. Those who vote "no" were Senators Ople, Defensor-Santiago,
John Osmea, Aquino-Oreta, Coseteng, Enrile, Honasan, Jaworski, Revilla,
Sotto III and Tatad.
In the Angara diary which appeared in the PDI issue of February 5,

2001, Secretary Angara stated that the letter came from Asst. Secretary
Boying Remulla; that he and Political Adviser Banayo opposed it; and
that PMS head Macel Fernandez believed that the petitioner would not
sign the letter.
91
17
64
96 House
Resolution No. 175, 11th Congress, 3rd Session (2001), reads:
"RESOLUTION EXPRESSING THE FULL SUPPORT OF THE HOUSE OF

REPRESENTATIVES TO THE ADMINISTRATION OF HER EXCELLENCY,
GLORIA MACAPAGAL-ARROYO, PRESIDENT OF THE PHILIPPINES
It states:
I, Gloria Macapagal-Arroyo, Vice President of the Philippines, do

solemnly swear that I will faithfully and conscientiously fulfill my duties
as President o the Philippines, preserve and defend its Constitution,
execute its laws, do justice to every man, and consecrate myself to the
service of the nation.
WHEREAS, on January 20, 2001, Vice President Gloria Macapagal-Arroyo

was sworn in as the 14th President of the Philippines;
WHEREAS, her ascension to the highest office of the land under the
dictum, "the voice of the people is the voice of God" establishes the basis
of her mandate on integrity and morality in government;
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Prof. Avena
WHEREAS, the House of Representatives joins the church, youth, labor

and business sectors in fully supporting the President's strong
determination to succeed;
WHEREAS, the House of Representatives is likewise one with the people
in supporting President Gloria Macapagal-Arroyo's call to start the
healing and cleansing process for a divided nation in order to 'build an
edifice of peace, progress and economic stability' for the country: Now,
therefore, be it
Resolved by the House of Representatives, To express its full support to
the administration of Her Excellency, Gloria Macapagal-Arroyo, 14th
President of the Philippines.
Adopted,
Speaker
January 24, 2001.
Secretary General"
The logical basis for executive immunity from suit was originally
founded upon the idea that the "King can do no wrong". [R.J. Gray,
Private Wrongs of Public Servants, 47 Cal. L. Rev., 303 (1959)]. The
concept thrived at the time of absolute monarchies in medieval England
when it was generally accepted that the seat of sovereignty and
governmental power resides in the throne. During that historical,
105
14. HEARSAY
Page 93 of 149
juncture, it was believed that allowing the King to be sued in his courts
was a contradiction to the sovereignty of the King.
With the development of democratic thoughts and institutions, this kind
of rationalization eventually lost its moral force. In the United States, for
example, the common law maxim regarding the King's infallibility had
limited reception among the framers of the Constitution. [J. Long, How to
Sue the President: A Proposal for Legislation Establishing the Extent of
Presidential Immunity, 30 Val. U. L. Rev. 283 (1995)]. Still, the doctrine of
presidential immunity found its way of surviving in modern political
times, retaining both its relevance and vitality. The privilege, however, is
now justified for different reasons. First, the doctrine is rooted in the
constitutional tradition of separation of powers and supported by
history. [Nixon v. Fitzgerald, 451 U. S. 731 (1982)]. The separation of
powers principle is viewed as demanding the executive's independence
from the judiciary, so that the President should not be subject to the
judiciary's whim. Second, by reason of public convenience, the grant is to
assure the exercise of presidential duties and functions free from any
hindrance or distraction, considering that the Chief Executive is a job
that, aside from requiring all of the office-holder's time, also demands
undivided attention. [Soliven v. Makasiar, 167 SCRA 393 (1988)].
Otherwise, the time and substance of the chief executive will be spent on
wrangling litigation, disrespect upon his person will be generated, and
distrust in the government will soon follow. [Forbes v. Chouco Tiaco, 16
Phil. 534 (1910)]. Third, on grounds of public policy, it was recognized
that the gains from discouraging official excesses might be more than
offset by the losses from diminished zeal [Agabin, op cit., at 121.].
Without immunity, the president would be disinclined to exercise
decision-making functions in a manner that might detrimentally affect
an individual or group of individuals. [See H. Schechter, Immunity of
Presidential Aides from Criminal Prosecution, 57 Geo. Wash. L. Rev. 779
(1989)].
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Prof. Avena
CONCURRING OPINION
VITUG, J.:
This nation has a great and rich history authored by its people. The EDSA
Revolution of 2001 could have been one innocuous phenomenon buried
in the pages of our history but for its critical dimensions. Now, EDSA 2
would be far from being just another event in our annals. To this day, it
is asked Is Mr. Joseph Ejercito Estrada still the President of the
Republic of the Philippines?
To retort, one is to trace the events that led to the denouement of the
incumbency of Mr. Joseph Ejercito Estrada. Mr. Estrada, herein
petitioner, was elected to office by not less than 10 million Filipinos in
the elections of May 1998, served well over two years until January
2001. Formally impeached by the Lower House of Representatives for
cases of Graft and Corruption, Bribery, Betrayal of Public Trust and
Culpable violation of the Constitution, he was tried by the Senate. The
Impeachment Tribunal was tasked to decide on the fate of Mr. Estrada- if
convicted, he would be removed from office and face prosecution with
the regular courts or, if acquitted, he would remain in office. An
evidence, however, presented by the prosecution tagged as the "second
envelope" would have it differently. The denial by the impeachment
court of the pleas to have the dreaded envelope opened promptly put the
trial into a halt. Within hours after the controversial Senate decision, an
angered people trooped again to the site of the previous uprising in 1986
that toppled the 20-year rule of former President Ferdinand E. Marcos EDSA. Arriving in trickles, the motley gathering swelled to an estimated
million on the fourth day, with several hundreds more nearing Mendiola
reportedly poised to storm Malacaang.
In the morning of 20 January 2001, the people waited for Erap to step
down and to heed the call for him to resign. At this time, Estrada was a
picture of a man, elected into the Presidency, but beleaguered by
14. HEARSAY
Page 94 of 149
solitude-empty of the support by the military and the police, abandoned

most of his cabinet members, and with hardly any firm succor from
constituents. And despite the alleged popularity that brought him to
power, mass sentiment now appeared to be for his immediate ouster.
With this capsule, the constitutional successor of Estrada in the person
of Gloria Macapagal-Arroyo, then incumbent Vice-President, took the cue
and requested the Chief Justice her oath-taking. In a letter, sent through
"fax" at about half past seven o'clock in the morning of 20 January 2001,
read:
"The undersigned respectfully informs this Honorable Court that Joseph
Ejercito Estrada is permanently incapable of performing the duties of his
office resulting in his permanent disability to govern the serve his
unexpired term. Almost all of his cabinet members have resigned and
the Philippine National police have withdrawn their support for Joseph
Ejercito Estrada. Civil society has likewise refused to recognize him as
President.
"In view of this, I am assuming the position of the president of the
Republic of the Philippines. Accordingly, I would like to take my oath as
President of the republic before the Honorable Chief Justice Hilario G.
Davide. Jr., today, 20 January 2001, 12:00 noon at EDSA Shrine, Quezon
City, Metro Manila.
"May I have the honor to invite the members of the Honorable Court to
attend the oath-taking."
The tribunal, aware of the grave national crisis which had the marks of
yet intensifying into possible catastrophic proportion, agreed to honor
the request: Therefore, the Court, cognizant that it had to keep its doors
open, had to help assure that the judicial process was seen to be
functioning. As the hours passed, however, the extremely volatile
situation was getting more precarious by the minute, and the
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Prof. Avena
14. HEARSAY
Page 95 of 149
combustible ingredients were all but ready to ignite. The country was
faced with a phenomenon --- the phenomenon of a people, who, in the
exercise of sovereignty perhaps too limitless to be explicitly contained
and constrained by the limited words and phrases of the constitution,
directly sought to remove their president from office. On that morning of
the 20th of January, the his tribunal was confronted with a dilemma ----should it choose a literal and narrow view of the constitution, invoke the
rule of strict law, and exercise its characteristics reticence? Or was it
propitious for it to itself take a hand? The first was fraught with danger
and evidently too risky to accept. The second could very well help avert
imminent bloodshed. Given the realities; the Court was left hardly with
choice. Paradoxically, the first option would almost certainly imperil the
Constitution, the second could save it. The confirmatory resolution was
issued following the en banc session of the Court on 22 January 2001; it
read:
revolution." The Court could not have remained placid amidst the
worsening situation at the time. It could not in conscience allow the
high-strung emotions and passions of EDSA to reach the gates of
Malacaang. The military and police defections created stigma that could
not be left unguarded by a vacuum in the presidency. The danger was
simply overwhelming. The extra-ordinariness of the reality called for an
extra-ordinary solution. The court has chosen to prevent rather than
cure an enigma incapable of being recoiled.
"A.M. No. 01-1-05-SC- In re: Request of Vice-President Gloria MacapagalArroyo to take her Oath of Office as President of the Philippines before
the Chief Justice- Acting on the urgent request of Vice President Gloria
Macapagal-Arroyo to be sworn in as President of the Republic of the
Philippines, addressed to the Chief Justice and confirmed letter to the
Court, dated January 20, 2001, which request was treated as an
administrative matter, the Court resolved unanimously to CONFIRM the
authority given by the twelve (12) members of the Court then present to
the Chief justice on January 20, 2001 to administer the oath of office to
Vice President Gloria Macapagal-Arroyo as President of the Philippines,
at noon of January 20, 2001.
So it is argued, Mr. Estrada remains to be the President because under

the 1987 Constitution, the Vice-President may assume the presidency
only in its explicitly prescribed instances; to wit, firstly, in case of death,
permanent disability, removal from office, or resignation of the
President,1secondly, when the President of the Senate and the Speaker
of the House of representatives his written declaration that he is unable
to discharge the powers and duties of his office, 2 and thirdly, when a
majority of all the members of the cabinet transmit to the President and
to the speaker of the House of representatives their written declaration
that the President is unable to discharge the powers and duties of his
office, 3 the latter two grounds being culled as the "disability."
"This resolution is without prejudice to the disposition of any justiceable

case which may be filed by a proper party."
Mr. Estrada believes that he cannot be considered to have relinquished

his office for none of the above situations have occurred. The conditions
for constitutional succession have not been met. He states that he has
merely been "temporarily incapacitated" to discharge his duties, and he
invokes his letters to both Chambers of the Congress consistent with
At high noon on the 20th January 2001, Gloria Macapagal-Arroyo was

sworn in as the 14th President of the Republic of the Philippines. EDSA,
once again, had its momentous role in yet another "bloodless
The alarming social unrest ceased as the emergence of a new leadership

so unfolded. The promise of healing the battered nation engulfed the
spirit but it was not to last. Questions were raised on the legitimacy of
Mme. Macapagal-Arroyo's assumption to office. Mr. Estrada would insist
that he was still President and that Mme. Macapagal-Arroyo took over
only in an acting capacity.
Law __ Evidence
Prof. Avena
14. HEARSAY
Page 96 of 149
section 11 of Article VII of the 1987 Constitution. The twin letters, dated
20 January 2001, to the two houses read:
"By virtue of the provisions of Section 11, Article VII of the Constitution, I
am hereby transmitting this declaration that I am unable to exercise the
powers and duties of my office. By operation of law and the Constitution,
the Vice-President shall be acting President."
Truly, the grounds raised in the petition are as dubitable as the

petitioner's real motive in filling the case.
The pressing issue must now catapult to its end.
Resignation is an act of giving up or the act of an officer by which he
renounces his office indefinitely. In order to constitute a complete and
operative act of resignation, the officer or employee must show a clear
intention to relinquish or surrender his position accompanied by an act
of relinquishment. Resignation implies, of the intention to surrender,
renounce, relinquish the office. 4
Mr. Estrada imports that he did not resign from the presidency because
the word "resignation" has not once been embodied in his letters or said
in his statements. I am unable to oblige. The contemporary acts of
Estrada during those four critical days of January are evident of his
intention to relinquish his office. Scarcity of words may not easily cloak
reality and hide true intentions. Crippled to discharge his duties, the
embattled President acceded to have negotiations conducted for a
smooth transition of power. The belated proposals of the President to
have the impeachment Court allow the opening of the controversial
envelope and to postpone his resignation until 24 January 2001 were
both rejected. On the morning of 20 January 2001, the President sent to
congress the following letter ---
"By virtue of the provisions of Section II, Article VII, of the Constitution, I
am hereby transmitting this declaration that I am unable to exercise the
powers and duties of my office. By operation of law and the Constitution,
the vice-president shall be the acting president."
Receipt of the letter by the Speaker of the lower house was placed at
around eight o'clock in the morning but the Senate president was said to
have received a copy only on the evening of that day. Nor this Court turn
a blind eye to the paralyzing events which left petitioner to helplessness
and inutility in office not so much by the confluence of events that
forces him to step down the seat of power in a poignant and teary
farewell as the recognition of the will of the governed to whom he
owned allegiance. In his "valedictory message," he wrote:
"At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo
took her oath as President of the Republic of the Philippines. While along
with many other legal minds of our country, I have strong and serious
doubts about the legality and constitutionality of her proclamation as
President, I do not wish to be a factor that will prevent the restoration of
unity and order in our civil society.
"It is for this reason that I now leave Malacaang Palace, the seat of the
presidency of this country, for the sake of peace and in order to begin the
healing process of our nation. I leave the palace of our people with
gratitude for the opportunities given to me for service to our people. I
will not shirk from any future challenges that may come ahead in the
same service of our country.
"I call on all my supporters and followers to join me in the promotion of
a constructive national spirit of reconciliation and solidarity.
"May the Almighty bless our country and our beloved people.
Law __ Evidence
Prof. Avena
"MABUHAY!
Abandonment of office is a species of resignation, 5 and it connotes the
giving up of the office although not attending by the formalities normally
observed in resignation. Abandonment may be effected by a positive act
or can be the result of an omission, whether deliberate or not. 6
Mr. Joseph Estrada invokes "temporary incapacity" under Section 11,
Article VII of the Constitution. This assertion is difficult to sustain since
the temporary incapacity contemplated clearly envisions those that are
personal, either by physical or mental in nature, 7 and innate to the
individual. If it were otherwise, when then would the disability last?
Would it be when the confluent causes which have brought about that
disability are completely set in reverse? Surely, the idea fails to register
well to the simple mind.
Neither can it be implied that the takeover has installed a revolutionary
government. A revolutionary government is one which has taken the
seat of power by force or in defiance of the legal processes. Within the
political context, a revolution is a complete overthrow of the established
government.8 In its delimited concept, it is characterized often,9 albeit
not always,10 by violence as a means and specificable range of goals as
ends. In contrast, EDSA 2 did not envision radical changes. The
government structure has remained intact. Succession to the presidency
has been by the duly-elected Vice-president of the Republic. The military
and the police, down the line, have felt to be so acting in obedience to
their mandate as the protector of the people.
Any revolution, whether it is violent or not, involves a radical change.
Huntington sees revolution as being "a rapid, fundamental and violent
domestic change in the dominant values and myths of society in its
political institution, social structure, leadership, government activity and
policies.11 " The distinguished A.J. Milne makes a differentiation
between constitutional political action and a revolutionary political
14. HEARSAY
Page 97 of 149
action. A constitutional political action, according to him, is a political

within a legal framework and rests upon a moral commitment to uphold
the authority of law. A revolutionary political action, on the other hand,
acknowledges no such moral commitment. The latter is directly towards
overthrowing the existing legal order and replacing it with something
else.12 And what, one might ask, is the "legal order" referred to? It is an
authoritative code of a polity comprising enacted rules, along with those
in the Constitution13 and concerns itself with structures rather than
personalities in the establishments. Accordingly, structure would prefer
to the different branches of the government and personalities would be
the power-holders. If determination would be made whether a specific
legal order is intact or not, what can be vital is not the change in the
personalities but a change in the structure.
The ascension of Mme. Macapagal-Arroyo to the presidency has resulted

neither in the obligation of the legal order. The constitutionallyestablished government structures, embracing various offices under the
executive branch, of the judiciary, of the legislature, of the constitutional
commissions and still other entities, including the Armed Forces of the
Philippines and the Philippine National Police and local governments as
well, have all remained intact and functioning.
An insistence that the events in January 2001 transgressed the letter of
the Constitution is to ignore the basic tenet of constitutionalism and to
functionalize the clearly preponderant facts.
More than just an eloquent piece of frozen document, the Constitution

should be deemed to be a living testament and memorial of the
sovereign will of the people from whom all government authority
emanates. Certainly, this fundamental statement is not without meaning.
Law __ Evidence
Prof. Avena
Nourished by time, it grows and copes with the changing milieu. The
framers of the constitution could not have anticipated all conditions that
might arise in the aftermath of events. A constitution does not deal in
details, but enunciates the general tenets that are intended to apply to all
facts that may come about but which can be brought within its
directions. 14 Behind its conciseness is its inclusiveness and its
apertures overridingly lie, not fragmented but integrated and
encompassing, its spirit and its intent. The Constitution cannot be
permitted to deteriorate into just a petrified code of legal maxims and
hand-tied to its restrictive letters and wordings, rather than be the
pulsating law that it is. Designed to be an enduring instrument, its
interpretation is not be confined to the conditions and outlook which
prevail at the time of its adoption15 instead, it must be given flexible to
bring it in accord with the vicissitudes of changing and advancing affairs
of men.16 Technicalities and play of words cannot frustrate the
inevitable because there is an immense difference between legalism and
justice. If only to secure our democracy and to keep the social order
technicalities must give away. It has been said that the real essence of
justice does not emanate from quibblings over patchwork legal
technicality but proceeds from the spirit's gut consciousness of the
dynamic role as a brick in the ultimate development of social edifice.17
Anything else defeats the spirit and intent of the Constitution for which
it is formulated and reduces its mandate to irrelevance and obscurity.
All told the installation of Mme. Macapagal-Arroyo perhaps came close

to, but not quite, the revolutionary government that we know. The new
government, now undoubtedly in effective control of the entire country,
domestically and internationally recognized to be legitimate,
acknowledging a previous pronouncement of the court, 18 is a de jure
government both in fact and in law. The basic structures, the principles,
the directions, the intent and the spirit of the 1987 Constitution have
been saved and preserved. Inevitably, Gloria Macapagal-Arroyo is the
14. HEARSAY
Page 98 of 149
President, not merely an Acting President, of the Republic of the

Philippines.
A reminder of an elder to the youth. After two non-violent civilian
uprising within just a short span of years between them, it might be said
that popular mass action is fast becoming an institutionalized enterprise.
Should the streets now be the venue for the exercise of popular
democracy? Where does one draw the line between the rule of law and
the rule of the mob, or between "People Power" and "Anarchy?" If, as the
sole justification for its being, the basis of the Arroyo presidency lies
alone on those who were at EDSA, then it does rest on loose and shifting
sands and might tragically open a Pandora's box more potent than the
malaise it seeks to address. Conventional wisdom dictates the
indispensable need for great sobriety and extreme circumspection on
our part. In this kind of arena, let us be assumed that we are not
overcome by senseless adventurism and opportunism. The country must
not grow oblivious to the innate perils of people power for no bond can
be stretched far too much to its breaking point. To abuse is to destroy
that which we may hold dear.
1
Section 8, Article VII, 1987 Constitution
Section 11, 1st paragraph, Article VII, 1987 Constitution
Ibid., 2nd paragraph
Ortiz vs. Comelec, 162 SCRA 812
Sangguniang Bayan ng San Andres vs. Court of Appeals, G.R. No.

11883, 16 January 1998
5
Cruz, Carlos L., The Law on Public Officers, p. 174, 1997 Edition
"Mr. SUAREZ. xxx
Law __ Evidence
Prof. Avena
14. HEARSAY
Page 99 of 149
"May we now go to Section 11, page 5. This refers to the

President's written declaration of inability to discharge the
powers and duties of the Office of the President. Can this written
declaration to be done for and in behalf of the President if, for
example, the President is in no position to sign his name, like he
suffers an accident and both his arms get to be amputated?
situation. Besides, it was not only the Wilson matter. As I have

already mentioned here, they have had situations in the United
States, including those of President Garfield, President Wilson,
President Roosevelt and President Eisenhower."
"Mr. REGALADO. We have not a situation like that even in the

jurisdiction from which we borrowed this provision, but we feel
that in remote situation that the Commissioner has cited in that
the President cannot make a written declaration, I suppose an
alternative would be considered wherein he can so expressly
manifest in an authentic manner what should be contained in a
written declaration. xxx
8 Gitlow
"Mr. SUAREZ. xxx I am thinking in terms of what happened to the

President Wilson. Really, the physical disability of the gentleman
was never made clear to the historians. But suppose a situation
will happen in our country where the President may suffer coma
and gets to be unconscious, which is practically a total inability
to discharge the powers and duties of his office, how can he
submit a written declaration of inability to perform the duties
and functions of his office?
"x x x x x x x x x
"FR. BERNAS. Precisely. The second paragraph is to take care of
the Wilson situation.
"Mr. SUAREZ. I see.
"Mr. REGALADO. The Wilson situation was in 1917. Precisely,
this twenty-fifth Amendment to the American Constitution as
adopted on February 10, 1967 prevent a recurrence of such
(11 RECORDS, PP. 421-423)

vs. Kiely, 44 F. 2d as cited in 46 CJS 1086
9 Ibid.
10 Ibid.
11 Zarocin,
Theories of Revolution in Contemporary

Historiography, 88 POLITICAL SCIENCE QUARTERLY
12 Milne,
Philosophy and Political Action, The Case of Civil Rights,

21 Political Studies, 453, 456 (1973)
13 Fernandez,
LAW and POLITY: Towards a System Concept of

Legal validity, 46 Philippines Law Journal, 390-391 (1971)
14 16
American Jurisprudence 2d.
15 State
ex rel Columbus vs. Keterrer, 127 Ohio St 483, 189 NE
252
16 John
Hancock Mut. Life Ins. Co. vs. Ford Motors Co., 322 Mich
209, 39 NW 2d 763
17 Battles
in the Supreme Court by Justice Artemio Panganiban,

pp. 103-104
Law __ Evidence
Prof. Avena
18 Lawyers'
League for a Better Philippines vs. President Corazon

C. Aquino, et al., G.R. No. 73748, May 22, 1986.
CONCURRING OPINION
14. HEARSAY
Page 100 of 149
government but is in fact and law a de jure government. Moreover, the

community of nations has recognized the legitimacy of the present
government. All the eleven members of this Court, as reorganized, have
sworn to uphold the fundamental law of the Republic under her
government.2
MENDOZA, J.:
In issue in these cases is the legitimacy of the presidency of respondent
Gloria Macapagal-Arroyo. In G.R. No. 146738, the petition for quo
warranto seeks a declaration that petitioner Joseph Ejercito Estrada is
the lawful President of the Philippines and that respondent Gloria
Macapagal-Arroyo is merely acting President on account o the former's
temporary disability. On the other hand, in G.R. Nos. 146710-15, the
petition seeks to prohibit respondent Ombudsman Aniano Desierto from
investigating charges of plunder, bribery, malversation of public funds,
and graft and corruption against petitioner Estrada on the theory that,
being still President, he is immune from suit.
In both cases, a preliminary question is raised by respondents whether
the legitimacy of Gloria Macapagal-Arroyo's presidency is a justiciable
controversy. Respondent Gloria Macapagal-Arroyo contends that the
matter is not justiciable because of "the virtual impossibility of undoing
what has been done, namely, the transfer of constitutional power to
Gloria Macapagal-Arroyo as a result of the events starting from the
expose of Ilocos Sur Governor Luis 'Chavit' Singson in October 2000."1
In support of this contention, respondent cites the following statements
of this Court concerning the Aquino government which it is alleged
applies to her administration:
. . . [T]he legitimacy of the Aquino government is not a justiciable matter.
It belongs to the realm of politics where only the people of the
Philippines are the judge. And the people have made the judgment; they
have accepted the government of President Corazon C. Aquino which is
in effective control of the entire country so that it is not merely a de facto
From the natural law point of view, the right of revolution has been
defined as "an inherent right of a people to cast out their rulers, change
their policy or effect radical reforms in their system of government or
institutions by force or a general uprising when the legal and
constitutional methods of making such change have proved inadequate
or are so obstructed as to be unavailable." It has been said that "the locus
of positive law-making power lies with the people of the state" and from
there is derived" the right of the people to abolish, to reform and to alter
any existing form of government without regard to the existing
constitution."3
But the Aquino government was a revolutionary government which was
established following the overthrow of the 1973 Constitution. The
legitimacy of a revolutionary government cannot be the subject of
judicial review. If a court decides the question at all qua court, it must
necessarily affirm the existence and authority of such government under
which it is exercising judicial power.4 As Melville Weston long ago put it,
"the men who were judges under the old regime and the men who are
called to be judges under the new have each to decide as individuals
what they are to do; and it may be that they choose at grave peril with
the factional outcome still uncertain."5 This is what the Court did in
Javellana v. Executive Secretary6 when it held that the question of
validity of the 1973 Constitution was political and affirmed that it was
itself part of the new government. As the Court said in Occena v.
COMELEC7 and Mitra v. COMELEC,8 "[P]etitioners have come to the
wrong forum. We sit as a Court duty-bound to uphold and apply that
Constitution. . . . It is much too late in the day to deny the force and
applicability of the 1973 Constitution."
Law __ Evidence
Prof. Avena
In contrast, these cases do not involve the legitimacy of a government.

They only involve the legitimacy of the presidency of respondent Gloria
Macapagal-Arroyo, and the claim of respondents is precisely that
Macapagal-Arroyo's ascension to the presidency was in accordance with
the Constitution.9
Indeed, if the government of respondent Gloria Macapagal-Arroyo is a
revolutionary one, all talk about the fact that it was brought about by
succession due to resignation or permanent disability of petitioner
Joseph Ejercito Estrada is useless. All that respondents have to show is
that in the contest for power Macapagal-Arroyo's government is the
successful one and is now accepted by the people and recognized by the
community of nations.
But that is not the case here. There was no revolution such as that which
took place in February 1986. There was no overthrow of the existing
legal order and its replacement by a new one, no nullification of the
Constitution.
What is involved in these cases is similar to what happened in 1949 in
Avelino v. Cuenco.10 In that case, in order to prevent Senator Lorenzo M.
Taada from airing charges against Senate President Jose Avelino, the
latter refused to recognize him, as a result of which tumult broke out in
the Senate gallery, as if by pre-arrangement, as the Court noted, and
Avelino suddenly adjourned the session and, followed by six senators,
walked out of the session hall. The remaining senators then declared the
position of President of the Senate vacant and elected Senator Mariano
Jesus Cuenco acting president. The question was whether respondent
Cuenco had been validly elected acting president of the Senate,
considering that there were only 12 senators (out of 24) present, one
senator (Sen. Confesor) being abroad while another one (Sen. Sotto) was
ill in the hospital.
14. HEARSAY
Page 101 of 149
Although in the beginning this Court refused to take cognizance of a

petition for quo warranto brought to determine the rightful president of
the Senate, among other things, in view of the political nature of the
controversy, involving as it did an internal affair of a coequal branch of
the government, in the end this Court decided to intervene because of
the national crisis which developed as a result of the unresolved
question of presidency of the Senate. The situation justifying judicial
intervention was described, thus:
We can take judicial notice that legislative work has been at a standstill;
the normal and ordinary functioning of the Senate has been hampered
by the non-attendance to sessions of about one-half of the members;
warrants of arrest have been issued, openly defied, and remained
unexecuted like mere scraps of paper, notwithstanding the fact that the
persons to be arrested are prominent persons with well-known
addresses and residences and have been in daily contact with news
reporters and photographers. Farce and mockery have been
interspersed with actions and movements provoking conflicts which
invite bloodshed.
. . . Indeed there is no denying that the situation, as obtaining in the
upper chamber of Congress, is highly explosive. It had echoed in the
House of Representatives. It has already involved the President of the
Philippines. The situation has created a veritable national crisis, and it is
apparent that solution cannot be expected from any quarter other than
this Supreme Court, upon which the hopes of the people for an effective
settlement are pinned.11
In voting to assume jurisdiction, Chief Justice Paras wrote: "[T]his Court
has no other alternative but to meet the challenge of the situation which
demands the utmost of judicial temper and judicial statesmanship. As
herein before stated, the present crisis in the Senate is one that
imperatively calls for the intervention of this Court."12 Questions raised
Law __ Evidence
Prof. Avena
14. HEARSAY
Page 102 of 149
concerning respondent Gloria Macapagal-Arroyo's presidency similarly

justify, in my view, judicial intervention in these cases.
Speaker of the House of Representatives, shall then act as President until

the President or Vice-President shall have been elected and qualified.
Nor is our power to fashion appropriate remedies in these cases in

doubt. Respondents contend that there is nothing else that can be done
about the assumption into office of respondent Gloria Macapagal-Arroyo.
What has been done cannot be undone. It is like toothpaste, we are told,
which, once squeezed out of the tube, cannot be put back.
The events that led to the departure of petitioner Joseph E. Estrada from
office are well known and need not be recounted in great detail here.
They began in October 2000 when allegations of wrong doings involving
bribe-taking, illegal gambling (jueteng), and other forms of corruption
were made against petitioner before the Blue Ribbon Committee of the
Senate. On November 13, 2000, petitioner was impeached by the House
of Representatives and, on December 7, impeachment proceedings were
begun in the Senate during which more serious allegations of graft and
corruption against petitioner were made and were only stopped on
January 16, 2001 when 11 senators, sympathetic to petitioner,
succeeded in suppressing damaging evidence against petitioner. As a
result, the impeachment trial was thrown into an uproar as the entire
prosecution panel walked out and Senate President Aquilino Pimentel
resigned after casting his vote against petitioner.
Both literally and figuratively, the argument is untenable. The toothpaste

can be put back into the tube. Literally, it can be put back by opening the
bottom of the tube that is how toothpaste is put in tubes at
manufacture in the first place. Metaphorically, the toothpaste can also be
put back. In G.R. No. 146738, a writ can be issued ordering respondent
Gloria Macapagal-Arroyo to vacate the Office of the President so that
petitioner Joseph E. Estrada can be reinstated should the judgment in
these cases be in his favor. Whether such writ will be obeyed will be a
test of our commitment to the rule of law. In election cases, people
accept the decisions of courts even if they be against the results as
proclaimed. Recognition given by foreign governments to the presidency
poses no problem. So, as far as the political question argument of
respondents is anchored on the difficulty or impossibility of devising
effective judicial remedies, this defense should not bar inquiry into the
legitimacy of the Macapagal-Arroyo administration.
This brings me to the main issue, whether respondent Gloria MacapagalArroyo's ascension to the Presidency was in accordance with the
Constitution. Art. VII. 8 provides in pertinent parts:
In case of death, permanent disability, removal from office, or
resignation of the President, the Vice-President shall become the
President to serve the unexpired term. In case of death, permanent
disability, removal from office, or resignation of both the President and
Vice-President, the President of the Senate or, in case of his inability, the
The events, as seen through the eyes of foreign correspondents, are

vividly recounted in the following excerpts from the Far Eastern
Economic Review and Time Magazine quoted in the Memorandum of
petitioner in G.R. Nos. 146710-15, thus:
1. The decision immediately sent hundreds of Filipinos out
into the streets, triggering rallies that swelled into a
massive four-day demonstration. But while anger was
apparent among the middle classes, Estrada, a master of
the common touch, still retained largely passive support
among the poorest Filipinos. Citing that mandate and
exploiting the letter of the Constitution, which stipulates
that a written resignation be presented, he refused to
step down even after all of the armed forced, the police
and most of his cabinet withdrew their support for him.
Law __ Evidence
Prof. Avena
[FAR EASTERN ECONOMIC REVIEW, "More Power to The

Powerful", id, at p. 18].
2. When an entire night passed without Estrada's
resignation, tens of thousands of frustrated protesters
marched on Malacaang to demand that the president
leave office. An air force fighter jet and four military
helicopters buzzed the palace to remind the president
that had lost the reins of power. [FAR EASTERN
ECONOMIC REVIEW, supra, ibid].
3. While the television cameras were focused on the rallies
and the commentators became lost in reveries about
People Power revisited behind-the-scenes negotiations
had been going on non-stop between military factions
loyal to Estrada and those who advocated a quick coup to
depose the President. Chief of Staff Reyes and Defense
Secretary Mercado had made their fateful call to Estrada
after luncheon attended by all the top commanders. The
officers agreed that renouncing Estrada was the best
course, in part because some commanders were urging
more drastic resolution. If the military did not come to a
consensus, there loomed the possibility of factional
fighting or, worse, civil war. [TIME, "People Power
Redux", id at p. 18]
4. It finally took a controversial Supreme Court declaration
that the presidency was effectively vacant to persuade
Estrada to pack up and move out to his family home in
Manila still refusing to sign a letter of resignation and
insisting that he was the legal president [FAR EASTERN
ECONOMIC REVIEW, "More Power to the Powerful",
supra, ibid.]. Petitioner then sent two letters, one to the
Senate President and the other to the Speaker of the
House, indicating that he was unable to perform the
duties of his Office.13
14. HEARSAY
Page 103 of 149
To recall these events is to note the moral framework in which

petitioner's fall from power took place. Petitioner's counsel claimed
petitioner was forced out of Malacaang Palace, seat of the Presidency,
because petitioner was "threatened with mayhem."14 What, the
President of the Philippines, who under the Constitution is the
commander-in-chief of all the armed forces, threatened with mayhem?
This can only happen because he had lost his moral authority as the
elected President.
Indeed, the people power movement did not just happen at the call of
some ambitious politicians, military men, businessmen and/or prelates.
It came about because the people, rightly or wrongly, believed the
allegations of graft and corruption made by Luis "Chavit" Singson, Emma
Lim, Edgardo Espiritu, and other witnesses against petitioner. Their
testimonies during the impeachment trial were all televised and heard
by millions of people throughout the length and breadth of this
archipelago. As a result, petitioner found himself on January 19, 2001
deserted as most of his cabinet members resigned, members of the
Armed Forces of the Philippines and the Philippine National Police
withdrew their support of the President, while civil society announced
its loss of trust and confidence in him. Public office is a public trust.
Petitioner lost the public's trust and as a consequence remained
President only in name. Having lost the command of the armed forces
and the national police, he found Himself vulnerable to threats of
mayhem.
This is the confession of one who is beaten. After all, the permanent
disability referred to in the Constitution can be physical, mental or
moral, rendering the President unable to exercise the powers and
functions of his office. As his close adviser wrote in his diary of the final
hours of petitioner's presidency:
The President says: "Pagod na pagod na ako. Ayoko na-masyado nang
masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I
Law __ Evidence
Prof. Avena
don't want any more of this-it's too painful. I'm tired of the red tape, the
bureaucracy, the intrigue.)15
Angara himself shared this view of petitioner's inability. He wrote in his
diary:
"Let us be realistic," I counter. "The President does not have the
capability to organize a counter-attack. He does not have the AFP or the
Philippine National Police on his side. He is not only in a corner he is
also down."16
This is the clearest proof that petitioner was totally and permanently
disabled at least as of 11 P.M. of Friday, January 19, 2001. Hence the
negotiations for the transfer of power to the respondent Vice-President
Gloria Macapagal-Arroyo. It belies petitioner's claim that he was not
permanently disabled but only temporarily unable to discharge the
powers and duties of his office and therefore can only be temporarily
replaced by respondent Gloria Macapagal-Arroyo under Art. VII, 11.
From this judgment that petitioner became permanently disabled
because he had lost the public's trust, I except extravagant claims of the
right of the people to change their government. While Art. II, 1 of the
Constitution says that "sovereignty resides in the people and all
government authority emanates from them," it also says that "the
Philippines is a democratic and republican state." This means that ours
is a representative democracy as distinguished from a direct
democracy in which the sovereign will of the people is expressed
through the ballot, whether in an election, referendum, initiative, recall
(in the case of local officials) or plebiscite. Any exercise of the powers of
sovereignty in any other way is unconstitutional.
Indeed, the right to revolt cannot be recognized as a constitutional
principle. A constitution to provide for the right of the people to revolt
will carry with it the seeds of its own destruction. Rather, the right to
14. HEARSAY
Page 104 of 149
revolt is affirmed as a natural right. Even then, it must be exercised only

for weighty and serious reasons. As the Declaration of Independence of
July 4, 1776 of the American Congress states:
We hold these Truths to be self-evident, that all Men are created equal,
that they are endowed by their Creator with certain unalienable Rights,
that among these are Life, Liberty, and the Pursuit of Happiness That
to secure these Rights, Governments are instituted among Men, deriving
their just Powers from the Consent of the Governed, that whenever any
Form of Government becomes destructive of these Ends, it is the Right of
the People to alter or to abolish it, and to institute new Government,
laying its Foundation on such Principles, and organizing its Powers in
such Form, as to them shall seem most likely to effect their Safety and
Happiness. Prudence, indeed, will dictate that Governments long
established should not be changed for light and transient Causes; and
accordingly all Experience hath shewn, that Mankind are more disposed
to suffer, while Evils are sufferable, than to right themselves by
abolishing the Forms to which they are accustomed. But when a long
Train of Abuses and Usurpations, pursuing invariably the same Object,
evinces a Design to reduce them under absolute Despotism, it is their
Right, it is their Duty, to throw off such Government, and to provide new
Guards for their future Security.17
Here, as I have already indicated, what took place at EDSA from January
16 to 20, 2001 was not a revolution but the peaceful expression of
popular will. The operative fact which enabled Vice-President Gloria
Macapagal-Arroyo to assume the presidency was the fact that there was
a crisis, nay a vacuum, in the executive leadership which made the
government rife for seizure by lawless elements. The presidency was up
for grabs, and it was imperative that the rule of succession in the
Constitution be enforced.
But who is to declare the President's permanent disability, petitioner
asks? The answer was given by petitioner himself when he said that he
Law __ Evidence
Prof. Avena
was already tired and wanted no more of popular demonstrations and

rallies against him; when he and his advisers negotiated with
respondent Gloria Macapagal-Arroyo's advisers for a transition of
powers from him to her; when petitioner's own Executive Secretary
declared that petitioner was not only in a corner but was down.
Nor is it correct for petitioner to say that the present situation is similar
to our situation during the period (from 1941 to 1943) of our occupation
by the Japanese, when we had two presidents, namely, Manuel L. Quezon
and Jose P. Laurel. This is turning somersault with history. The
Philippines had two presidents at that time for the simple reason that
there were then two governments the de facto government
established by Japan as belligerent occupant, of which Laurel was
president, and the de jure Commonwealth Government in exile of
President Manuel L. Quezon. That a belligerent occupant has a right to
establish a government in enemy territory is a recognized principle of
international law.18 But today we have only one government, and it is
the one set up in the 1987 Constitution. Hence, there can only be one
President.
Having reached the conclusion that petitioner Joseph E. Estrada is no
longer President of the Philippines, I find no need to discuss his claim of
immunity from suit. I believe in the canon of adjudication that the Court
should not formulate a rule of constitutional law broader than is
required by the precise facts to which it is applied.
The only question left for resolution is whether there was massive
prejudicial publicity attending the investigation by the Ombudsman of
the criminal charges against petitioner. The test in this jurisdiction is
whether there has been "actual, not merely possible, prejudice"19
caused to petitioner as a result of publicity. There has been no proof of
this, and so I think this claim should simply be dismissed.
For the foregoing reasons, I vote to dismiss the petitions in these cases.
14. HEARSAY
(Sgd.)
VICENTE V. MENDOZA
Associate Justice
Page 105 of 149
Law __ Evidence
G.R. No. L-58831
Prof. Avena
July 31, 1987
ALFREDO R. CORNEJO, SR., petitioner,

vs.
THE HON. SANDIGANBAYAN, respondent.
FERNAN, J.:
Petitioner Alfredo R. Cornejo, Sr. seeks a review on certiorari of the
decision dated September 9, 1981 of the Sandiganbayan in Criminal Case
No. 2495 entitled "People of the Philippines, Plaintiff, vs. Alfredo
Cornejo, Sr. and Rogelio Alzate Cornejo*, Accused", finding him "guilty
beyond reasonable doubt as principal of the crime of Estafa [Swindling]
as defined and penalized under Article 315, paragraph 4th, subparagraph 2-(a), in relation to Article 214, both of the Revised Penal
Code; and, appreciating against him the aggravating circumstance of
advantage of public position, without any mitigating circumstance in
offset; ... [and] sentencing him to Four (4) months and Twenty-One (21)
Days of arresto mayor, with the accessories provided by law; to suffer
perpetual special disqualification, to indemnify the complainant, Beth
Chua, in the amount of One Hundred Pesos [P100.00], and to pay his
proportionate share of the costs."1
The facts of the case, as found by the trial court, are as follows:
For already more than 14 years, complainant Beth Chua had
been renting the premises at 105 Moana Street, Pasay City,
owned by one Crisanto Bautista, which she devoted as a
residence and a sari-sari store. In the morning of December 11,
1979, accused Alfredo R. Cornejo, Sr. [hereinafter referred to as
accused Engineer], then a City Public Works Supervisor in Pasay
City, called at the store of complainant looking for a woman who
supposedly called him up from there. In the course of his
conversations with complainant, during which he introduced
14. HEARSAY
Page 106 of 149
himself to be connected with the City Engineer's Office, accused

Engineer represented to complainant that he was empowered to
inspect private buildings and that, pursuant to the Building Code,
the Metro Manila Commission requires that the floor area of all
houses be measured, a service for which a fee of P3.00 per
square meter is charged, but that, if said service is undertaken by
him, the charge would be only P0.50 per square meter. In
addition, said accused assured complainant's that, while her
premises were under investigation, she could not be ejected
despite the pending ejectment suit against her. Although she
initially entertained doubts about the personality of accused
Engineer, complainant eventually believed him not only because
he talked nicely but also because he warned her that unless she
complies with said requirements, she could be liable for the
penal sanctions under the Building Code. Complainant was thus
prevailed upon to agree that the required service be undertaken
by accused Engineer for which she would pay from P300.00 to
P400.00 and, since the entire procedure had to be done step by
step, she would have to initially pay P150.00 for the
measurement and the preparation of the Floor plan of the house.
As agreed with accused Engineer, at 3:00 o'clock in the afternoon
of that day, accused Rogelio Alzate Cornejo (hereinafter referred
to as accused Draftsman], nephew of accused Engineer, together
with one Conrado Ocampo, showed up at Complainant's place
and made measurements therein. However, because complainant
was short of funds, she was able to deliver to accused Draftsman
only P100.00 out of the P150.00 agreed upon with accused
Engineer. For that amount, accused Draftsman issued
complainant a receipt [Exh. A] and at the same time asked her to
sign a bunch of blank forms and other papers which he took
back.
The following morning, December 12, 1979, because
complainant saw accused Engineer go to the house of her
Law __ Evidence
Prof. Avena
neighbor, a Mrs. Dalisay Bernal, complainant asked the latter

what said accused was there for and she was told that he went
there also for the same purpose. Since Mrs. Bernal share the
doubts previously entertained by her, the two of them decided to
see Barangay Captain Carmen Robles about the matter. With the
Barangay Captain, complainant and Mrs. Bernal then went to the
Pasay City Hall where they saw City Engineer Jesus I. Reyna who
told them that accused Engineer was not authorized to conduct
inspection and investigation of privately-owned buildings-a fact
later confirmed by a certification issued to that effect by said City
Engineer [Exhibit B]. With this discovery, the matter was
reported to the Intelligence and Special Operations Group, Pasay
City Police. It developed that in the morning of December 14,
1979, Conrado Ocampo called on complainant at the instance of
accused Engineer to collect the balance of P50.00 but
complainant did not then pay him. Instead, she asked that
accused Engineer be the one to pick up the money that afternoon
because she wanted to ask him something. This was brought to
the attention of Captain Manuel Malonzo of the ISOG who caused
the statement of complainant to be taken by then Police Sergeant
Nicanor del Rosario [Exhibit C] and an entrapment was planned.
With money consisting of two 20-pesos bill and one 10 peso bill
previously xerox-copied to be used by complainant as pay-off
money [Exhibits E and E-1], an ISOG team composed of Sgt. Del
Rosario, Sgt. Pablo Canlas and Pfc. Anacleto Lacad and Pascual de
la Cruz, repaired to the vicinity of complainant's store. At about
1:00 o'clock that afternoon, accused Engineer showed up at
complainant's store and, there, complainant handed to him an
envelope containing the payoff money which he received. As said
accused was in the act of placing the envelope in his attache case,
the police accosted him and took the money from him.
Thereafter, said accused was taken to the police Headquarters,
together with complainant whose supplementary statement
14. HEARSAY
Page 107 of 149
[Exhibit D] was taken. In due course, with the evidence gathered,

as well as the statements of accused Engineer, the police officers
and other witnesses, the case was referred to the City Fiscal of
Pasay City. [Exhibit F]. 2
The judgment of conviction was based on the findings of the trial court
that petitioner Cornejo employed criminal deceit in falsely holding
himself out as duly authorized by reason of his office to inspect and
investigate privately-owned buildings, by which misrepresentation he
was able to inveigle complainant to agree to have the floor area of her
house and store measured and to have a plan thereof drawn by the
petitioner for a fee less than that supposedly officially charged for said
service.
In his main petition, petitioner contends that the respondent court
committed grave abuse of discretion in:
a] considering only that part of the testimony of the private
complainant which favored the prosecution and ignoring
completely those which exculpated the petitioner;
b] admitting in evidence Exhibit B [Certification of Pasay City
Engineer Jesus Reyna] without the author thereof taking the
witness stand and thereby depriving the petitioner of his
constitutional right of confrontation;
c] finding that petitioner had no authority to conduct inspection
and investigation of privately-owned buildings and in concluding
that the element of deceit was sufficiently proved to make the
latter liable for estafa; and
d] in holding that the arrest of petitioner in the afternoon of
December 14, 1979 was the result of an entrapment when the
Law __ Evidence
Prof. Avena
14. HEARSAY
prosecution evidence clearly showed that the latter was set up

by the complainant and the police.
Petitioner likewise filed a supplemental petition with a special prayer for
the remand of the case to the court a quo on the ground that he was
deprived of his constitutional right to due process as 1] there was no
preliminary investigation actually conducted by the Tanodbayan Special
Prosecutor; 2] the Sandiganbayan should have granted his motion for
reconsideration which is allegedly highly meritorious; 3] the
Information is utterly defective; 4] the prosecution is politically
motivated and stage-managed to ease him out as a possible mayoralty
candidate against the son of then Pasay City Mayor Pablo Cuneta; and, 5]
the pendency of Civil Case No. 6302-P before the CFI of Rizal, Pasay City,
a petition filed by petitioner to have his duties as City Public Works
Supervisor defined, constitutes a prejudicial question to the case a bar.3
In support of his first contention, petitioner points to certain portions of
the testimony of the complainant Beth Chua as containing exculpatory
evidence, thus:
Q: All these 14 years, did you receive any notice from the Metro
Manila Commission requiring you to have those measurements?
A: Never.
Q: You were never approached by any person from the Metro
Manila Commission telling you that your premises needed
measuring?
Page 108 of 149
A: Yes, sir.
Q: So it was not for that purpose that you gave that P150.00; it
was for the services of Rogelio Alzate Cornejo who prepared for
you a plan which you testified is still in their posession, is this
not correct?
A: Yes, sir.
Q: So that money was for the services of Rogelio Cornejo, as a
matter of fact, you even signed that sketch that Rogelio prepared,
is this not correct?
A: Yes, sir. 4
and,
Justice Kallos:
Q: But you admitted to Atty. Villa in his question that you agreed
to pay the sum of P150.00 for the preparation of a plan and
sketch to this other accused, Rogelio Alzate y Cornejo. In other
words, the P150.00 which you agreed to pay was in payment of
Rogelio Alzateis work in preparing the plan?
A: I do not know whether the amount of P150.00 would go to
Rogelio Alzate because we agreed to the entire amount.
A: None, sir.
Q: But the fact of the matter is that the P150.00 which you agree
to pay first was intended as payment for the preparation of the
plan?
Q: And this is the first time there is such a thing as a Metro

Manila Commission requirement as you explained now as told to
you by Engr. Cornejo?
A: Yes, your Honor.
Law __ Evidence
Prof. Avena
Q: And in fact, you admitted to Atty. Vina that you even signed
the sketch?
A: Yes, sir. 5
From the above testimony of complainant Beth Chua, petitioner would
conclude that the gravamen of the charge was not proved because the
person sought to be defrauded did not fall prey to the alleged fraudulent
acts or misrepresentations and that the money was in fact paid for
services rendered by Rogelio Alzate Cornejo.
This conclusion drawn by petitioner is unwarranted. The testimony of
complainant Beth Chua should be taken in its entirety. Not to be
overlooked is her categorical statement that although she initially
entertained doubts as to the personality of the petitioner and the
veracity of his representations, she finally believed him because he
talked nicely and also because he warned her that unless she complied
with the purported requirements of the Metro Manila Commission, she
could be liable for the penal sanctions under the Building Code. She
further stated that she believed petitioner's statement that having her
store measured and a plan thereof made would prevent her eviction
from the subject premises.6 This portion of the testimony of Beth Chua
was accorded full weight and credence by the trial court and We find no
cogent reason to disturb such assessment, particularly where the
veracity of said statements was demonstrated by complainant's own act
of agreeing to have her store measured and a plan thereof sketched as
per advice of petitioner. Complainant had no reason to have such work
undertaken and in the process, incur expenses, other than her belief in
and reliance on petitioner's misrepresentations. Otherwise stated, if
complainant did not believe petitioner's misrepresentations, she would
not have agreed to said advice. Thus, it was precisely petitioner's
misrepresentations that induced complainant to part with her money.
That actual services were performed cannot exculpate petitioner
because said services rendered were an integral part of the modus
14. HEARSAY
Page 109 of 149
operandi, without which petitioner would have no reason to obtain

money from the complainant. These services likewise served as a
smokescreen to prevent the complainant from realizing that she was
being swindled.
Anent petitioner's objection to the admissibility of Exhibit B, the
certification issued by Pasay City Engineer Jesus Reyna to the effect that
petitioner was not authorized to inspect and investigate privatelyowned buildings, We find no reversible error, much less grave abuse of
discretion on the part of the trial court in admitting the same. It must be
noted that Exhibit B was not presented as an independent evidence to
prove the want of authority of petitioner to inspect and investigate
privately-owned buildings, but merely as part of the testimony of-the
complainant that such certification was issued in her presence and the
declaration of Assistant Pasay City Engineer Ceasar Contreras that the
signature appearing thereon was that of Engineer Reyna. Where the
statement or writings attributed to a person who is not on the witness
stand are being offered not to prove the truth of the facts stated therein
but only to prove that such statements were actually made or such
writings were executed, such evidence is not covered by the hearsay
rule.7
Besides, the finding of the trial court that petitioner had no authority to
conduct inspections and investigations of privately-owned buildings was
reached, not solely on the basis of Exhibit B, but principally from a
consideration and study of Section 18 of R.A. No. 5185, the law which
first allowed the city governments to create the position of City Public
Works Supervisor, in relation to P.D. No. 549, which placed the city
public works supervisors under the supervision of the city engineers.
Of course, petitioner would likewise find fault in this conclusion [third
assignment of error]. However, rather than overturn the trial court in
this regard as petitioner would pray of us, We find ourselves in complete
agreement with the trial court's observations and conclusion that:
Law __ Evidence
Prof. Avena
... Easily, the authority claimed should be a matter of law or

regulation. To begin with, the position of City Public Works
Supervisor, which is admittedly the position held by accused
Engineer, was first allowed to be created by City Governments
pursuant to Section 18 of Republic Act No. 5185, which expressly
confined the functions thereof to 'public works and public
highways projects financed out of local funds". Nowhere in that
statute was any authority granted to city public works
supervisors relative to privately-owned buildings. Later, with the
advent of Presidential Decree No. 549, on September 5, 1974,
city public works supervisors were placed under the direct
supervision of the City Engineer, although, by virtue of Letter of
Instruction No. 789, dated December 26, 1978, as further
implemented by Ministry Order No. 3-79, Ministry of Finance,
dated January 23, 1979, the officials therein mentioned were
... enjoined to abolish the Office of the City Public Works
Supervisor, return all personnel to the Department of
Engineering and Public Works of the City without
reduction in salaries, place City Public Works Supervisors
under the direct control and supervision of City
Engineers and for City Engineers to carry out all public
works constructions, repairs and improvements of the
City financed by City Funds, pursuant to the respective
charters of the Cities.
Clearly, then as of December, 1979, when the offense here
charged is alleged to have been perpetrated, accused Engineer's
position as City Public Works Supervisor could not have
subsisted and, although he remained in office, he was then
placed under the direct control and supervision of the City
Engineer, performing functions confined to "public works and
public highways projects financed out of local funds", As such, he
had no authority to conduct inspection or investigation of
14. HEARSAY
Page 110 of 149
privately-owned buildings a fact duly certified by Pasay City

Engineer Jesus L. Reyna [Exhibit B] and confirmed on the witness
stand by Pasay City Assistant City Engineer Ceasar C. Contreras.
In this posture, the basic representation of accused Engineer that
he was authorized to conduct inspection and investigation of
privately-owned buildings was an outright falsehood.
Accused Engineer's insistent claim that he had that authority is
futile. As aforesaid, the pertinent law is explicit that the functions
of a city public works supervisor, as the title of the office clearly
suggests, refer only to the supervision of public works and, for
this purpose, this means "public works and public highways
projects financed out of local funds". This statutory specification
of duties can not be varied by the mere certification presented by
said accused that he "is a duly accredited employee of this Office
[of the City Engineer] and is entitled to all assistance and
courtesies in the performance of his duties" [Exhibit 10]. Much
less could the notation under the column "Remarks" in his Daily
Time Records [Exhibits 11, 11-A to 11-C], to wit, "Overseeing
PW-BUILDING INVESTIGATION" or "Bldg. Investigations", be
accorded the force of an investiture of authority for that purpose.
At best, said notations are only self-serving statements made by
said accused and the mere fact that the daily time records
aforesaid are approved by the City Engineer cannot add an iota
of probative force thereto as proof of any authority to inspect
and investigate privately-owned buildings. 8
Petitioner further attempts to convince us that he was induced and
instigated by complainant and the police to commit the crime charged.
The facts of the case do not support such assertion. When petitioner
returned to complainant's house on the day he was arrested, he had
already committed the deceit punished by law and had effectively
defrauded complainant of her money. His act of going to complainant's
house was a mere continuation of the unlawful scheme, already
Law __ Evidence
Prof. Avena
consummated within the contemplation of the law, so that the strategy

employed by the police in affecting his arrest was a clear case of
entrapment, which is recognized as a lawful means of law
enforcement.91avvphi1
14. HEARSAY
Page 111 of 149
Footnotes
Petitioner's co-accused Rogelio Alzate Cornejo was acquitted on
the ground of reasonable doubt.
*
Worthy of note is the fact that except for a fleeting reference to the
pendency of Civil Case No. 6302-P of the then CFI of Rizal, Pasay City as
constituting a prejudicial question to the present prosecution, the other
grounds cited in petitioner's supplemental petition were neither
discussed nor elaborated on in his brief. Suffice it to say then that the
other grounds cited by petitioner in his supplemental petition deserve
scant consideration for they either do not have any relevance to the
petition at bar [such as petitioner's allegation that the prosecution is
politically-motivated] or could not alter the result of the case, such as
petitioner's bare allegation of lack of preliminary investigation, which
cannot overcome the presumption of regularity in the performance of
official duties [Sec. 5(m), Rule 131, Rules of Court]; the complaint about
the Information** which We do not find defective; and the matter of
prejudicial question which must be raised after the Information has been
filed in the trial court, but not at this late stage.10
Finding no reversible error nor grave abuse of discretion to have been
committed by the trial court, and convinced beyond reasonable doubt
that petitioner is guilty of the offense charged, the decision of the trial
court is affirmed.1avvph!1
WHEREFORE, the instant petition is hereby denied for lack of merit, The
decision of the Sandiganbayan in Criminal Case No. 2495 is affirmed in
toto. Costs against petitioner.
SO ORDERED.
Teehankee, C.J., Yap, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.
p. 43, Rollo.
pp. 25-29, Rollo.
pp. 75-79, Rollo.
TSN, pp. 47-48, June 1, 1981.
TSN, pp. 50-51, June 1, 1981.
TSN, pp. 3-4,5-9,12-13,15-16, June 1, 1981.
People v. Cusi, 14 SCRA 944
Decision, pp. 33-35, Rollo.
People v. Luz Chua, et al., 56 Phil. 53.
**
The Information in Criminal Case No. 2495 reads:

"That on or about the llth day of December, 1979, in
Pasay City, Philippines and within the jurisdiction of this
Honorable Court, the abovenamed accused, Engr. Alfredo
Cornejo, Sr., a public officer being then a City Public
Works Supervisor of the Pasay City Engineer's Office, and
Rogelio Alzate Cornejo, a private individual, by means of
deceit, false pretenses and fraudulent manifestations, the
Law __ Evidence
Prof. Avena
former taking advantage of his position and committing

said offense in relation to his office, conspiring and
confederating and mutually helping and aiding one
another, did then and there wilfully, unlawfully and
feloniously inform and misrepresent to Beth Chua that as
per instruction of the Metro Manila Commission, the floor
area of the apartment occupied by Beth Chua has to be
measured, inspected and investigated and that at the
same time, structural plan of the said apartment must be
prepared, for which the latter would allegedly pay P3.00
per square meter to the Metro Manila Commission if said
work would be done by the latter office, but if they would
be the one to do the job, it would only cost P0.50 per sq.
meter, when in truth and in fact, accused Engr. Alfredo R.
Cornejo , Sr., as per certification issued by the Pasay City
Engineer's Office, has no authority to conduct inspection
and investigation of privately-owned houses or buildings
and accused Rogelio Alzate Cornejo is not even
connected with the Local City Engineer's Office, that
complainant Beth Chua, believing the representations of
the said accused to be true, did in fact give and deliver to
the accused the total amount of P150.00 which amount
accused misappropriated and misapplied to their own
use and benefit, to the damage and prejudice of said Beth
Chua in the aforesaid amount of P150.00. " [pp. 24-25,
Rollo]
Estrella v. Orendain, et al., 37 SCRA 640; Isip, et al. v. Gonzales,
39 SCRA 255.
10
14. HEARSAY
Page 112 of 149
Law __ Evidence
G.R. No. 156251
Prof. Avena
April 27, 2007
PHILIPPINE REALTY HOLDINGS CORPORATION, Petitioner,

vs.
FIREMATIC PHILIPPINES, INC., Respondent.
DECISION
14. HEARSAY
Page 113 of 149
performed in the most proper and workmanlike manner and in

full conformity with the corresponding plans and specifications
duly prepared therefor and/or the pertinent contract documents.
2.0 The work of the CONTRACTOR shall include, but shall not be
limited to ordering materials, following-up of orders, checking
the quantity and quality of materials within the premises of the
construction site, and rejecting or returning defective materials.
CALLEJO, SR., J.:

This is a Petition for Review on Certiorari of the Decision1 of the Court of
Appeals (CA) in CA-G.R. CV No. 63791 and its Resolution2 dated
November 19, 2002.
The Antecedents
On December 12, 1989, Philippine Realty and Holdings Corporation
(PRHC), entered into a Construction Agreement3 with Firematic
Philippines, Inc. (Firematic) for the installation of a sprinkler system in
the proposed Tektite Towers, located at Tektite Road corner Pearl
Avenue, Mandaluyong, Metro Manila. The project had two phases - Phase
I (Tower I) and Phase II (Tower II)
The scope of the work to be done by Firematic is provided in Article II of
the Contract, thus:
1.0 The CONTRACTOR, in consideration of the payments to be
made by OWNER, of certain sums of money in the manner
hereinafter specified, shall fully and faithfully deliver, perform
and undertake to finish and supply all the materials, tools,
equipment, supervision and to do all the skills and labor
necessary or proper for the due completion of the Sprinkler
System for the above-mentioned project, and does hereby
warrant and guarantee that the said work and labor shall be
3.0 The CONTRACTOR is hereby expressly required to refer to all

Mechanical, Plumbing, Electrical, Structural and Architectural
plans and specifications and shall investigate any possible
interference and conditions affecting its contract work.
4.0 All materials supplied by the CONTRACTOR shall be in
conformity with the Sprinkler System specifications prepared by
R. Villarosa Architects.
5.0 It is not intended that the drawings shall show every pipe,
fittings, and valve. All such items, whether or not those parts
have been specifically mentioned or indicated on the drawings,
shall be furnished and installed by CONTRACTOR, if necessary to
complete the system in accordance with the best practice of
Sprinker System and to the satisfaction of the OWNER.4
Under Article I of the Contract, the following documents were
incorporated into the agreement:
1.0 Sprinkler System Plans: FP-1 to FP-18, all consisting of
eighteen (18) sheets as prepared by R. Villarosa Architects.
2.0 Fire Protection Specification consisting of Forty-nine (49)
pages.
Law __ Evidence
Prof. Avena
14. HEARSAY
3.0 Bid Documents consisting of the following:

a) Invitation to Bid One (1) sheet;
b) Instruction to Bidders Three (3) sheets;
c) Bid Proposals of Firematic Phils., Inc. consisting of
Three (3) pages dated Oct. 31, 1989;
d) Bid Bulletin No. 1 Fourteen (14) sheets;
e) Letter of Intent dated November 21, 1989 duly signed
by the Owner and the Contractor consisting of Two (2)
sheets.5
Article IX of the Contract enumerates the responsibilities of Firematic
relative to the supply and installation of the sprinkler supplies:
1.0. The CONTRACTOR shall remove all portions of work which the
OWNER or its representative may condemn as in any way having failed
to conform with the corresponding Sprinkler Systems plans and
specifications, and the CONTRACTOR shall properly make good all such
work so condemned by the OWNER. The cost of making good any/all
work shall be solely borne by the CONTRACTOR.
xxxx
7.0. The CONTRACTOR warrants the Sprinkler System installations
under this contract to be free from faults or defects in materials and
workmanship for a period of One (1) year from the date of initial
operations. Faults caused by or due to ordinary wear and tear or those
caused by the OWNER or its employees are excluded from this
guarantee.1awphi1.nt
Page 114 of 149
The CONTRACTOR further warrants all equipment and accessories

thereto to be free from defects in materials and faulty workmanship for
a period of One (1) year from the date of initial operation.
The equipment or parts thereof which are found defective within the
said period of guarantee shall be replaced by the CONTRACTOR at no
cost to the OWNER.
On December 11, 1990, PRHC informed6 Firematic that it had decided to
delete Phase II (Tower II) from the original contract, and consequently,
the contract price for Phase I was reduced to P22,153,424.52.7 However,
by reason of the change orders approved by PRHC, the contract price
was increased to P24,773,376.48.8
On December 13, 1990, PRHC and Firematic entered into another
Construction Agreement9 under which the latter undertook to supply,
deliver and install the fire alarm system for Phase I of the Tektite Project
for a total contract price of P3,780,000.00. This agreement contains
substantially the same terms and conditions as the earlier contract for
fire sprinklers.
The Technical Specification for Fire Protection10 (which is an integral
part of the contract) provides, among others:
1.02. QUALIFICATIONS
xxxx
D. LISTED AND APPROVED:
When the words "listed" and "approved" appear in the Contract
Documents, or the Standard Specifications and Codes, they shall be
interpreted to require products to bear labels indicating the listing, or
approval of items of equipment, components, devices, assemblies and
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Prof. Avena
14. HEARSAY
Page 115 of 149
apparatus; by an internationally recognized testing laboratory for the

specific service intended.
in writing by the Owner. The value of any extra work or alterations shall
be separately agreed upon by the parties in writing.
1.03. STANDARD SPECIFICATIONS AND CODES:
Any value of Change Orders approved shall be considered as part of the

Contract and to be included in progress billing.
xxxx
ARTICLE V TERMS OF PAYMENT
1. NFPA-20; Centrifugal Fire Pumps11
The contract price and terms of payment for the project are as follows:
The OWNER shall pay the CONTRACTOR for the full, faithful and
complete performance of the works called for under this agreement, a
fixed amount of PESOS: THIRTY THREE MILLION NINE HUNDRED
NINETY FIVE THOUSAND FORTY ONE & 24/100 (P33,995,041.24)
ONLY, the manner of payment of which shall be in accordance with
Article V hereof. The contract price shall not be subject to escalation,
except due to work addition approved by the Owner and the Architect
and due to official increase in minimum wage as covered by the Labor
Cost Adjustment Clause below. x x x It is understood that there shall be
no escalation in the price of materials. x x x.
ARTICLE IV ADJUSTMENT OF CONTRACT PRICE
The OWNER or ARCHITECT may, without invalidating this Agreement or
the Contract Documents, order at anytime in writing additional work or
alterations by correcting, altering or deducting from the work to be
undertaken or being undertaken by the CONTRACTOR. All such work
shall be evidenced by Change Orders signed by the OWNER and shall be
executed under the conditions hereof and of the Contract Documents.
3.0. No payment made hereunder shall be construed as a waiver of any

claim against the CONTRACTOR by the OWNER for any faulty
workmanship, materials used or defect in work completed.
On March 30, 1992, Firematic requested12 PRHC for financial assistance
due to its tight business credit and rising costs. Consequently, the
purchases of materials for the project were directly paid by PRHC.
Firematic submitted to PRHC the Catalogue of Peerless Fire Pumps,13
and PRHC approved the use of 500 GPM (12 LB-F model) Peerless
Vertical Turbine Fire Pumps.14 To facilitate the purchase of the approved
model and specifications of the fire pumps from Technotrade Industrial
Sales, Inc., and pursuant to the financial assistance earlier requested by
Firematic, the latter presented to PRHC for approval Purchase Order No.
10815 dated August 6, 1992. PRHC approved the purchase order. The
subject materials were delivered and eventually installed by Firematic.
On the other hand, the Technical Specifications for Fire Alarm and
Detection System16 provides:
2.01. FIRE ALARM CONTROL PANEL (FACP):
xxxx
No claims for additions or deductions to the Contract Price herein

stipulated by reason of extra or alteration shall be valid unless ordered
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Prof. Avena
B. The FACP shall be solid state design with full capability for sensing
automatic detectors, and manual stations and have the provision for
integrating with security system.17
Paragraph 9 of Bid Bulletin No. 118 dated September 10, 1990 provides
that the requirement for interfacing with Security System Section under
Section 2.01(B) is actually for interfacing with the Building Management
System (BMS).19
The materials were installed by Firematic. The project became
operational and was turned over to PRHC, which then issued the
Certificate of Completion.20 The Municipal Mayor issued a Certificate of
Occupancy in favor of PRHC on January 12, 1993.21
In the meantime, PRHC requested the Connel Bros. Co., Philippines for a
quotation of the Peerless UL/FU Fire pump similar to those installed by
Firematic in Tektite Tower I.22 However, Connel Bros. Philippines, Inc.
replied by letter dated September 2, 1993 that it would be difficult for
them to trace whether they had records of transactions with
Technotrade-USA, because the pump model and serial number that
PRHC furnished were not of Peerless origin."23
Meanwhile, on October 14, 1993, Firematic billed PRHC P1,402,559.93
for the balance of the amount of the automatic sprinkler supplies
installed.24 However, PRHC rejected the claim. On October 20, 1993,
PRHC, through counsel, sent a letter25 to Firematic claiming that, based
on its Purchase Order, the brand "Peerless" should have been used;
however, the manufacturer of the brand (Peerless Pump Co., USA), did
not have any record of having manufactured the pumps that Firematic
delivered and installed on the Tektite Towers project.
Firematic did not respond to the letter. Instead, its managing director,
Ms. Jojie Gador, went to the Fire Department of the City of Pasig and
inquired about the fire incident that occurred at Tower II while
14. HEARSAY
Page 116 of 149
construction was ongoing.26 In response to the inquiry, the City Fire

Marshall issued a report27 dated June 10, 1994 stating that "said fire
could have turned into a conflagration size without the swift response of
the company guards on duty plus the existing firefighting equipment
installed thereat."
In a letter28 dated March 2, 1994, Connel Bros. stated that Peerless Pump
Co. never had direct negotiation with Technotrade, and as such, the
latter is not a dealer of "Peerless" pump.
On January 12, 1995, Firematic sent its final billing29 and a demand
letter30 prepared by its counsel to PRHC for the payment of the latters
balance of the contract price amounting to P3,919,283.13, including the
unacted charge order attached thereto.1vvphi1.nt
In answer to the final billing of Firematic, PRHC denied31 liability for the
following reasons:
1.[The] installation is incomplete and has not been fully
commissioned.
2.[The] Fire Alarm Panels could not be interfaced with Building
Management System as required in [the] contract x x x.
3.[The] Fire Alarm Panels do not follow the specifications
required in the contract.
In a letter32 dated March 6, 1995, PRHC informed Firematic that all the
fire pumps and accessories supplied by it shall be removed, and the cost
of replacement, including the labor cost of the installation, would be
chargeable to its account. Again, Firematic failed to respond.33
In the meantime, PRHC purchased the replacement for the "defective"
materials installed by Firematic, as evidenced by the following Purchase
Law __ Evidence
Prof. Avena
Orders: (1) P.O. dated November 15, 1993 for pumps obtained from
Connel Bros. Company Pilipinas, Inc. amounting to US$ 61,925.00;34 (2)
P.O. dated October 25, 1994 for fire and jockey pumps installation
amounting to P318,750.00;35 and (3) P.O. dated October 4, 1995 for
materials purchased from Electro Systems, for a total amount of
P450,000.00.36 The Peerless pumps bought by PRHC to replace the
pumps Firematic had installed were higher in terms of capacity.37
As a result of the continued refusal of PRHC to pay its unpaid obligation,
Firematic filed a Complaint for Collection for Sum of Money plus
Damages38 against PRHC. The case was raffled to Branch 66 of the
Regional Trial Court of Makati, and was docketed as Civil Case No. 95394.
Firematic alleged in its complaint that when it followed up its final
billings and retention money, the PRHC, under new management,
refused to pay its obligation. It further claimed that the PRHCs reason,
that the sprinkler system and fire alarm system were defective was so
flimsy because the sprinkler and fire alarm systems were certified to be
in good condition. Firematic also asserted that because of PRHCs
continued refusal to settle its valid and outstanding obligations, it
suffered actual damages in the amount of P5,897,736.44; temperate or
moderate damages in a reasonable amount of P500,000.00; and
attorneys fees equivalent to 25% of the amount recoverable. The
complaint contained the following prayer:
WHEREFORE, Premises Considered, it is respectfully pray (sic) of the
Honorable Court that after trial a judgment be rendered ordering the
defendant
1. To pay the amount of P5,897,736.44 plus legal interest of 1%
per month until fully paid from the filing of this complaint;
2. To pay temperate or moderate damages of P500,000.00;
14. HEARSAY
Page 117 of 149
3. To pay attorneys fees in the amount equivalent to 25% of the

amount recovered;
4. To pay the cost of suit.
Further prays for such other reliefs and damages under the premises.39
In its Answer,40 PRHC countered that plaintiff had no cause of action, and
that the complaint is premature because the case should have been
submitted first to arbitration. It also alleged that out of the total amount
of P23,400,869.41 billed by Firematic, it already paid the total sum of
P22,098,302.45. However, after such payment, it discovered that
Firematic had violated the terms and conditions of the contract, and that
the actual works completed in accordance with the technical
specifications amounted only to P21,915,869.41. It likewise claimed that
there was in fact an overpayment of P182,433.04 insofar as the fire
sprinkler contract was concerned. As to the fire alarm contract, PRHC
alleged that it paid a total sum of P3,247,966.49, but it turned out that
the works actually completed in accordance with the specifications of
the contract amounted only to P2,857,655.10. PRHC insisted that
Firematic committed fraud in the performance of its obligations under
the two contracts in (1) actually delivering and installing pumps that
were not genuine "Peerless" products, non-UL listed and non-FM
approved; (2) supplying and installing "Mitech" brand instead of
"Firescan 5027" as approved during the bidding; (3) installing fire alarm
control and data gathering panels that were not compatible with each
other; and (4) installing a fire alarm system that could not be connected
or interfaced with the Building Management System.
In its Reply,41 Firematic alleged that the provision on arbitration had
force and effect only during the execution and performance of the
agreement or contract and not after its termination. It further asserted
that the total contract price, including the change orders, increased to
P25,277,559.75 but PRHC only paid P21,087,191.89; thus, there was a
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Prof. Avena
14. HEARSAY
Page 118 of 149
balance of P4,190,367.86. It likewise contended that though there was

an approved specification, revisions were made due to unavailability of
materials. Consequently, with the conformity and approval of PRHC of
the description specified under P.O. 108, the latter made direct orders
from Technotrade; PRHC also made direct payments to it. Firematic
pointed out that the materials delivered were under warranty for one
(1) year, and since PRHC had no complaints after the lapse of the
warranty, it was under the impression that the materials had met the
specifications. It insisted that PRHC could not complain that the fire
alarm system could not be interfaced with its system because it was the
latters responsibility to provide for an interface device.
After trial on the merits, the RTC ruled in favor of PRHC. The fallo of the
decision45 reads:
On September 1, 1998, PRHC filed a Motion for Leave to Amend Answer

to Conform to Evidence42 which Firematic opposed. On October 26,
1998, the trial court granted the motion and thereby admitted the
Amended Answer.43 In its Amended Answer, PRHC claimed that, with
respect to the fire sprinkler system, the actual works completed by
Firematic amounted to only P20,613,302.45. Thus, it (PRHC) made an
overpayment of P1,485,000.00. As to the fire alarm system, the works
actually completed in accordance with the technical specifications
amounted to only P2,597,966.49. Again, there was an overpayment of
P650,000.00.
SO ORDERED.46
By way of counterclaim, PRHC averred that Firematics violation of the

contract and its misrepresentation caused the former to suffer actual
damages in the amount of P2,135,000.00, $61,925.00 and P450,000.00;
the baseless and unfounded suit caused it to suffer besmirched
reputation, for which Firematic should be ordered to pay moral damages
in the amount of P20,000.00; for the public good and to deter others
similarly minded from committing fraud in the performance of the
contract, Firematic should be ordered to pay exemplary damages in the
amount of P10,000.00; and since the unfounded suit compelled PRHC to
obtain the services of counsel, Firematic should be made to pay 25% of
the amount recovered as attorneys fees.44
IN VIEW OF THE FOREGOING, judgment is hereby rendered dismissing

the above complaint and ordering the plaintiff to pay the defendant the
amount of $61,925.00 or P1,610,050.00 (at P26.00 per dollar exchange
rate when the Peerless pump were bought) representing the purchase
price of the genuine Peerless fire pumps, P318,750.00 representing the
amount to install the replacement fire pumps, P450,000.00 representing
the amount of supply and installation of replacement fire alarm panels
plus P25,000.00 as attorneys fees.
The RTC concluded that in failing to deliver genuine Peerless Pumps as

agreed upon, and to install fire alarm system that could be interfaced
with the system, Firematic failed to comply with the technical
specifications of the contracts.47
Aggrieved, Firematic appealed to the CA, raising the following errors:
I.
THE HONORABLE COURT ERRED IN FINDING
PLAINTIFF-APPELLANT OF HAVING FAILED TO
DELIVER AND TRANSFER TO DEFENDANT-APPELLEE
SPRINKLER SYSTEM AND FIRE ALARM SYSTEMS IN
ACCORDANCE WITH THE CONTRACTS.
II.
THE HONORABLE COURT ERRED IN FINDING THE
PEERLESS FIRE PUMPS AS FAKE.
Law __ Evidence
Prof. Avena
14. HEARSAY
III.
THE HONORABLE COURT ERRED IN FINDING

PLAINTIFF-APPELLANT OF HAVING FAILED TO COMPLY
WITH THE TECHNICAL SPECIFICATIONS OF THE FIRE
ALARM SYSTEM CONTRACT.
IV.
DEFENDANT IS LIABLE TO PLAINTIFF-APPELLANT FOR
THE DAMAGES PRAYED FOR.48
Page 119 of 149
the work of Firematic, it was convinced that the unfinished work

amounted to P1,372,507.07.
Thus, the appellate court held that Firematic was liable to PRHC for a
total amount of P1,822,507.07, while PRHC had an unpaid obligation to
Firematic amounting to P2,675,074.03 representing the balance of the
contract price. The appellate court concluded that PRHC owed Firematic
P852,566.96.53
On August 2, 2002, Firematic and PRHC filed their Motion for
Reconsideration and Clarification54 and Motion for Partial
Reconsideration,55 respectively.
On July 10, 2002, the CA rendered judgment reversing the decision of the
RTC. The fallo reads:
On November 19, 2002, the CA issued the following Resolution:56
WHEREFORE, the foregoing considered, the Decision appealed from is

hereby ANNULLED. The appellee is hereby ORDERED to pay, in view of
the above premises and computations, the sum of P852,566.96, with
legal interest from 7 March 1995, the date the complaint was filed.49
WHEREFORE, premises considered, the Decision of 10 July 2002 is

hereby MODIFIED, and instead of P852,566.96, the appellee is hereby
ORDERED to pay appellant P762,658.71 with legal interest from 07
March 1995.
The CA declared that PRHCs belated claim was highly doubtful since
PRHC had ordered the pumps from Technotrade, albeit through the
Firematic, and were inspected and scrutinized by its consultants who are
experts in their fields.50 The appellate court likewise agreed with
Firematic that the documents presented in evidence by PRHC to prove
that the pumps supplied by Technotrade were not genuine "Peerless"
pumps are inadmissible for being hearsay.51 According to the CA, it is
possible that it was not the appellant but Technotrade that was guilty of
fraud in supplying dubious pumps to PRHC.52
The main Decision STANDS in all other respects.
However, the CA affirmed the findings of the RTC that appellant

committed a breach of contract in installing the fire control panels
because of its failure to comply with the requirement of interfacing with
its system. Since PRHC was constrained to incur P450,000.00 to undo
No costs.
SO ORDERED.57
PRHC, now petitioner, seeks to have the appellate courts ruling reversed
on the following grounds:
1. The Court of Appeals committed reversible error when it came
out with a conclusion based on a manifestly mistaken inference
or based on misapprehension of facts, inasmuch as its findings
are contradictory to the evidence on record. Specifically, the
Court of Appeals committed reversible error when it ruled that
Law __ Evidence
Prof. Avena
the fire pumps supplied and delivered by FIREMATIC to

PHILREALTY conformed to the technical specifications of the
sprinkler system contract despite evidence to the contrary.
2. The Court of Appeals committed reversible error when it again
came out with a conclusion based on a manifestly mistaken
inference. Specifically, the Court of Appeals committed reversible
error when it unjustifiably disregarded petitioners evidence
showing the supplied pumps as fakes and not of "Peerless"
origin, on the ground that said evidence is hearsay.
3. The Court of Appeals committed reversible error when it came
out with a conclusion based on a manifestly mistaken inference
and based on misapprehension of facts. Specifically, the Court of
Appeals erred that the issuance of a Certificate of Completion
proved the genuineness of fire pumps and the compliance with
the technical specifications of the contract.58
The threshold issue raised is whether or not the fire pumps supplied and
delivered by respondent to petitioner conformed to the technical
specifications of the contract.
Petitioner argues that while it is true that the particular model of the
pumps for the fire control system was not specified in the technical
specifications for fire protection, the qualifications of the pumps were
nevertheless provided that the pumps should be "listed" and
"approved" by an internationally recognized testing laboratory for the
specific service intended.59 Pursuant to such specification, respondent in
fact submitted for approval the brochure of Peerless Pumps. Petitioner
further insists that it was respondent who brought the source of the fake
peerless pumps into the picture, and as such, it should be the one to
return the defective materials. It insists that the direct payment made by
petitioner did not relieve respondent from its responsibility under the
contract. Moreover, petitioner asserts, because respondent failed to
14. HEARSAY
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dispute its claim and present proof that the fire pumps delivered were
genuine, it had impliedly admitted that the fire pumps were not original
Peerless pumps. Petitioner further contends that the issuance of the
certificate of completion and the fact that the fire pumps were used did
not cure their defects.
For its part, respondent contends that the fire pumps were inspected,
examined and tested by petitioners technical staff, and that the latter
found them to be operational. Thus, it cannot now be permitted to
belatedly complain. According to respondent, petitioner admitted that
when the fire pumps were changed, the replacement pumps installed by
the latter were higher in terms of capacity. Respondent likewise
reiterates that the evidence presented by petitioner to prove that the fire
pumps were not genuine is inadmissible in evidence for being hearsay. It
claimed that the CA erred in ordering petitioner to pay to it the principal
amount of only P852,566.96. Respondent maintains that, as shown by
the evidence on record, petitioner owed it P10,399,418.89 for the fire
sprinkler supplies and fire alarm system. It further contends that the
decision of the CA should be modified, and prays for the following relief:
1.) The herein Petition for Review on Certiorari filed by
Petitioner Philippine Realty & Holdings Corporation be
dismissed for lack of merit;
2.) Petitioner be ordered to pay Respondent the following to wit:
a.) Ten Million Three Hundred Ninety Nine Thousand
Four Hundred Eighteen & 87/100 (P10,399,418.89)
Pesos, for the fully completed installation of the Fire
Sprinkler System and Fire Alarm System, ten (10%)
percent retention and (sic) plus legal interest of twelve
(12%) percent per annum from July 10, 2002 as and by
way of actual damages;
Law __ Evidence
Prof. Avena
b.) Five Hundred Thousand (P500,000.00) Pesos as and

by way of exemplary, nominal or moderate damages;
c.) Attorneys fees at the rate of Twenty (sic) (25%)
percent of the award of actual damages abovementioned;
d.) Such other reliefs and remedies as may be just and
equitable under the premises.60
However, it is an established rule that an appellee (respondent) who is
not also an appellant (petitioner) may assign error where the purpose is
to maintain the judgment on other grounds, but he cannot seek
modification or reversal of the judgment or affirmative relief unless he
has also appealed (or filed a separate petition).61 Thus, due to
respondents failure to institute a separate petition before this Court, the
CA decision must perforce be considered final and binding as to it.
Petitioner insists that the fire pumps supplied and installed by
respondent are "not of Peerless origin" because of the following: (1)
respondent failed to present proofs of the genuineness of the pumps; (2)
respondent failed to answer petitioners letters requiring it to present
the aforesaid proofs, thus, estoppel by silence applies; and (3) the
manufacturer of the Peerless pumps verbally informed Connel Bros. that
the subject fire pumps "are not of Peerless origin."
We do not agree.
Well-settled is the rule that the party alleging fraud or mistake in a
transaction bears the burden of proof. The circumstances evidencing
fraud are as varied as the people who perpetrate it in each case. It may
assume different shapes and forms; it may be committed in as many
different ways. Thus, the law requires that fraud be established, not just
by preponderance of evidence, but by clear and convincing evidence.62
14. HEARSAY
Page 121 of 149
In this case, petitioner relied on the principle of estoppel by silence, as

well as on Letter No. L/93-27263 and Letter No. L/94-04364 of Connel
Bros. to prove that the fire pumps, which respondent supplied and
installed, were not genuine. The aforesaid letters are quoted hereunder:
Letter No. L/93-272
December 15, 1993
PRHC PROPERTY MANAGERS, INC.
5th Floor, Tektite Towers,
Tektite Road, Ortigas Center,
Pasig, Metro Manila
Attention: Mr. Ed B. Banaag, Vice President
Subject: EXISTING FIRE PUMPS AT TEKTITE TOWER I
Gentlemen:
With reference to your letter dated November 15, 1993,
please find attached a (sic) copy of facsimile message
dated December 15, 1993 from our principal, Peerless
Pump, USA.
Please take note that they normally trace the authenticity
of the pump through the pump model and pump serial
number. It would be then difficult for the factory to trace
whether they have indeed records of transactions with
Technotrade-USA because the pump model and serial
number that you furnished us are not of Peerless origin.
We also enclosed a copy of our Letter No. L/93-063 dated
November 16, 1993 for your reference.
Law __ Evidence
Prof. Avena
We hope the above explanation will enlighten your

clarification.
14. HEARSAY
Page 122 of 149
Please find attached a (sic) copy of our Letter No. F/93071 dated December 20, 1993 addressed to our principal
wherein we enclosed your above stated letter .
Very truly yours,

E.L. STA. MARIA, JR.
Asst. Vice President
Machineries Department
ELS:LTV
Att.: a/s
Letter No. L/94-043
March 2, 1994
PRHC PROPERTY MANAGERS, INC.
5/F Tektite Towers, Tektite Road
Ortigas Center, Pasig, M.M.
Attention: MR. EDUARDO B. BANAAG
Vice President
Subject: EXISTING FIRE PUMPS AT TEKTITE TOWER I
Gentlemen:
We apologize for the delay in our reply to your letter of
December 16, 1994 regarding your clarification on the
above subject.
However, inspite of constant follow-ups and reminder,

we could not have a confirmation from our principal on
your requested information.
Mr. John Kahren, Peerless Pumps Director for
International Sales, verbally advised that they have no
access or capability to verify whether there is such an
organization named Technotrade operating in the U.S.A.
They can only confirm that they never had direct
negotiation with Technotrade in record and as such,
Technotrade is not a dealer of Peerless pump.
We hope the above statement will in any way answer
your requested clarification.
Very truly yours,
E.L. STA. MARIA, JR.
Asst. Vice President
Machineries Department
ELS: LTV
Att.: a/s
However, petitioner failed to present the signatory of the letters (E.L.
Sta. Maria, Jr.) to testify on the veracity of the contents of the letters;
thus, respondent was not given the opportunity to cross-examine him. It
also appears that the person who signed the letters had no personal
knowledge of the facts stated therein, as he claimed that he had been
"verbally advised" that the manufacturer of Peerless pumps never had
Law __ Evidence
Prof. Avena
direct negotiation with Technotrade, and as such, the latter is not a

dealer of the pumps.
Well-entrenched is the rule that a private certification is hearsay where
the person who issued the same was never presented as a witness. The
same is true of letters. While hearsay evidence may be admitted because
of lack of objection by the adverse partys counsel, it is nonetheless
without probative value.65 Stated differently, the declarants of written
statements pertaining to disputed facts must be presented at the trial for
cross-examination.66 The lack of objection may make an incompetent
evidence admissible, but admissibility of evidence should not be equated
with weight of evidence. Indeed, hearsay evidence whether objected to
or not has no probative value.67
Petitioner asserts that respondent impliedly admitted that the fire
pumps it installed were "not of Peerless origin" because of its failure to
dispute petitioners accusation and to present proofs that the fire pumps
delivered were genuine. Thus, petitioner contends that estoppel by
silence applies to respondent.
14. HEARSAY
Page 123 of 149
delighted because the management of Tektite Tower had substantially

complied with the safety requirements of Presidential Decree No.
1185.72 In making such inquiry, respondent in effect denied petitioners
accusation that the fire pumps it had installed were defective; as such,
the principle of estoppel by silence does not apply.
Because good faith is presumed, respondent was not obliged to present
proofs of the genuineness of the fire pumps it supplied and installed. The
burden of proof to show that the pumps were not genuine fell upon
petitioner. However, the records show that petitioner failed to discharge
this burden. Clearly, the evidence relied upon is not sufficient to
overturn (1) the presumption of good faith; (2) that private transactions
have been fair and regular;73 and (3) that the ordinary course of business
had been followed.74
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of
merit. The Decision of the RTC dated July 10, 2002, in CA-G.R. CV No.
63791, and its Resolution dated November 19, 2002, are AFFIRMED.
SO ORDERED.
The principle of estoppel in pais applies wherein one, by his acts,

representations or admissions, or by his own silence when he ought to
speak out, intentionally or through culpable negligence, induces another
to believe certain facts to exist and such other rightfully relies and acts
on such belief, so that he will be prejudiced if the former is permitted to
deny the existence of such facts.68
We find the principle inapplicable in the present case. Acording to
respondents Managing Director Jojie S. Gador, she did not completely
keep silent on petitioners accusation. She testified that when petitioner
refused to pay respondent, she went to the Fire Department of the City
of Pasig and made an inquiry regarding the fire incident that took place
at the Tektite project.69 In answer to this inquiry, the Fire Department
issued a Certification70 stating, inter alia, that the office71 was very much
44
The Amended Answer contained the following prayer:

WHEREFORE, defendant prays that after trial, the Honorable
Court renders a Decision:
1. Ordering the dismissal of the complaint as against the
defendant;
2. Ordering plaintiff to pay defendant:
2.1. Actual damages as follows:
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Prof. Avena
a. P1,485,000.00 representing the amount of

overpayment under the Sprinkler System Contract;
b. $61,925.00 representing the purchase price of the
genuine PEERLESS fire pumps;
c. P318,750.00 representing the amount to install the
replacement fire pumps;
d. P650,000.00 representing the amount of overpayment
under the Fire Alarm System Contract;
e. P450,000.00 representing the amount of supply and
installation of replacement data gathering panels.
2.2. Moral damages in the amount of P20,000,000;
2.3. Exemplary damages in the amount of P10,000,000;
2.4. Attorneys fees and expenses of litigation equivalent to 25%
of the amount recovered and such amounts as may be proved in
the trial.
Other reliefs just and equitable in the premises are also prayed
for.
14. HEARSAY
Page 124 of 149
Law __ Evidence
G.R. No. 180979
Prof. Avena
December 15, 2010
NATIONAL POWER CORPORATION, Petitioner,

vs.
TERESITA DIATO-BERNAL, Respondent.
RESOLUTION
NACHURA, J.:
At bar is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court, seeking the reversal of the September 28, 2007 Decision1 and the
December 17, 2007 Resolution2 of the Court of Appeals (CA).
The assailed issuances affirmed the January 14, 2000 Order3 of the
Regional Trial Court (RTC), Branch 20, Imus, Cavite, which fixed the just
compensation at P10,000.00 per square meter (sq m), in relation to the
expropriation suit, entitled "National Power Corporation v. Teresita
Diato-Bernal."
The factual antecedents are undisputed.
Petitioner National Power Corporation (NAPOCOR) is a government
owned and controlled corporation created by Republic Act No. 6395,4 as
amended, for the purpose of undertaking the development of
hydroelectric power throughout the Philippines. To carry out the said
purpose, NAPOCOR is authorized to exercise the power of eminent
domain.5
Respondent Teresita Diato-Bernal (respondent) is the registered owner
of a 946 sq m parcel of land situated along General Aguinaldo Highway,
Imus, Cavite, covered by Transfer Certificate of Title No. T-384494.6
14. HEARSAY
Page 125 of 149
In order to complete the construction of structures and steel posts for

NAPOCORs "Dasmarias-Zapote 230 KV Transmission Line Project," it
had to acquire an easement of right of way over respondents property.7
Thus, on January 8, 1997, NAPOCOR filed an expropriation suit against
respondent, alleging, inter alia, that: the project is for public purpose;
NAPOCOR negotiated with respondent for the price of the property, as
prescribed by law, but the parties failed to reach an agreement; and
NAPOCOR is willing to deposit the amount of Eight Hundred Fifty- Three
Pesos and 72/100 (P853.72), representing the assessed value of the
property for taxation purposes.8
Respondent moved for the actions dismissal, arguing the impropriety of
the intended expropriation, and claiming that the value of her property
is Twenty Thousand Pesos (P20,000.00) per sq m for the front portion,
and Eighteen Thousand Pesos (P18,000.00) per sq m for the rear
portion, and that she will lose One Hundred Fifty Thousand Pesos
(P150,000.00) per month by way of expected income if the property is
expropriated.9
On September 25, 1998, the parties filed with the RTC a partial
compromise agreement,10 which reads:
1. That the parties, after earnest and diligent efforts, have
reached an amicable settlement regarding the location and size
of Pole Site No. DZ-70 to be constructed on the property of
(respondent);
2. That the parties have agreed that the said Pole Site No. DZ-70
shall be constructed or located on (respondents) Lot No. 6075-B
covered by Transfer Certificate of Title No. T-384494 of the
Registry of Deeds for Cavite, covering a total affected area of
29.25 square meters more or less as indicated in the Sketch
hereto attached as Annex "A";
Law __ Evidence
Prof. Avena
3. That the case shall[,] however, proceed to trial on its merits

only with respect to the question of just compensation.
14. HEARSAY
Page 126 of 149
ha[ve] considerably increased. Such being the case, the just

compensation is fixed at P10,000.00 per sq. meter.16
The agreement was approved by the RTC in its Order dated September
25, 1998.11
Dissatisfied, NAPOCOR sought recourse with the CA, reiterating the

arguments raised in its Opposition.
With the first phase of the expropriation proceedings having been laid to
rest by the partial compromise agreement, the RTC proceeded to
determine the amount of just compensation. To assist in the evaluation
of the fair market value of the subject property, the RTC appointed three
(3) commissioners, viz.: (1) the Provincial Assessor of Cavite; (2) the
Municipal Assessor of Imus, Cavite, upon recommendation of NAPOCOR;
and (3) Soledad Zamora, respondents representative.12 The
commissioners submitted their report to the RTC on September 14,
1999. In the main, they recommended that the just compensation due
from NAPOCOR be pegged at P10,000.00 per sq m, based on the
propertys fair market value.13
On September 28, 2007, the CA rendered its Decision affirming the RTCs
judgment.17 Its motion for reconsideration18 having been denied,19
NAPOCOR interposed the present petition.
NAPOCOR filed an Opposition14 to the Commissioners Valuation Report,

asserting that it was not substantiated by any official documents or
registered deeds of sale of the subject propertys neighboring lots.
NAPOCOR invoked our ruling in Rep. of the Phil. v. Santos,15 wherein we
held that a commissioners report that is not based on any documentary
evidence is hearsay and should be disregarded by the court. Lastly,
NAPOCOR claimed that the just compensation for the expropriated
property should be P3,500.00 per sq m, based on Resolution No. 08-95
dated October 23, 1995, enacted by the Provincial Appraisal Committee
of Cavite (PAC-Cavite).
On January 14, 2000, the RTC issued an Order adopting the
recommendation of the commissioners, viz.:
To the mind of the Court, the appraisal made by the Commissioners is
just and reasonable. It is of judicial notice that land values in Cavite
NAPOCOR, through the Office of the Solicitor General, repleads its

contentions before the courts a quo and adds that the CA failed to
explain why the value of the subject property went up by almost 200%
in a span of two (2) years - P3,500.00 per sq m in 1995 to P10,000.00
per sq m at the time of the filing of the expropriation complaint in 1997.
For her part, respondent prays for the dismissal of the petition on the
ground that it raises purely factual questions which are beyond the
province of a Petition for Review on Certiorari under Rule 45 of the
Rules of Court.
The petition is meritorious.
We shall first address the procedural infirmity raised by respondent.
In Santos v. Committee on Claims Settlement,20 the Court had occasion to
delineate the distinction between a question of law and a question of
fact, thus: A question of law exists when there is doubt or controversy on
what the law is on a certain state of facts. There is a question of fact
when the doubt or difference arises from the truth or the falsity of the
allegations of facts.
The Court elucidated as follows:
Law __ Evidence
Prof. Avena
14. HEARSAY
Page 127 of 149
A question of law exists when the doubt or controversy concerns the

correct application of law or jurisprudence to a certain set of facts; or
when the issue does not call for an examination of the probative value of
the evidence presented, the truth or falsehood of facts being admitted. A
question of fact exists when the doubt or difference arises as to the truth
or falsehood of facts or when the query invites calibration of the whole
evidence considering mainly the credibility of the witnesses, the
existence and relevancy of specific surrounding circumstances as well as
their relation to each other and to the whole, and the probability of the
situation.21
Miguel Yamamura Corp. from Southeast around 1 km. [t]o 1.5 kms. From
EMI (Yasaki), Makro, and Robinsons Department Store.
In this case, it is clear that NAPOCOR raises a question of law, that is,
whether or not the resolution of the PAC-Cavite should prevail over the
valuation report of the court-appointed commissioners. The issue does
not call for a recalibration or reevaluation of the evidence submitted by
the parties, but rather the determination of whether the pertinent
jurisprudence and laws cited by NAPOCOR in support of its argument
are applicable to the instant case.
Residential houses in the area are one to two storey in height

constructed of concrete and wood materials belonging to families in the
middle income bracket, while commercial buildings mostly located along
Gen. Emilio Aguinaldo Highway.
On the substantive issue, the Court finds that the CA and the RTC erred
in relying on the unsubstantiated and insufficient findings contained in
the commissioners report.
Newly constructed Robinsons Department Store

Makro
Caltex Gasoline station and Shell Gasoline station
Goldbomb Const. Corp.
EMI (Yasaki)
Pallas Athena Subd.
and various Commercial and Savings Banks
In arriving at the P10,000.00 per sq m market value of the expropriated

property, the commissioners utilized the following factors:
II. NEGHBORHOOD DESCRIPTION

The neighborhood particularly in the immediate vicinity, is within a
mixed residential and commercial area situated in the Southern Section
of the Municipality of Imus which is transversed by Gen. Emilio
Aguinaldo Highway w[h]ere several residential subdivisions and
commercial establishments are located.
Some of the important landmarks and commercial establishments in the

immediate vicinity are:
I. PROPERTY LOCATION
The property subject of the appraisal is situated along Gen. Aguinaldo
Highway, Brgy. Anabu, Municipality of Imus, Province of Cavite,
consisting of 946 sq. m. more or less, identified as Lot 6075-B with Flat
Terrain approximately 5 kms. Distance Southwest of Imus Town proper,
about 500 to 600 m. from the entrance gate of Orchard Club and San
Community [c]enters such as school, churches, public markets, shopping

malls, banks and gasoline stations are easily accessible from the subject
property.
Convenience facility such as electricity, telephone service as well as pipe
potable water supply system are all available along Gen. Aguinaldo
Highway
Law __ Evidence
Prof. Avena
xxxx
14. HEARSAY
Page 128 of 149
data and price listings alluded to in the report were not even appended
thereto.1avvphi1
IV. VALUATION OF LAND MARKET DATA

This method of valuation involves the research and investigation of
market and sales data of the properties comparable with the property
under appraisal.
These other properties are compare[d] with the subject property as to
location and physical characteristics. Adjustment of their selling prices
[is] then made with respect to the said comparative elements as well as
time compensate for the increase or decrease in value.
Based on our investigations and verifications of market sales data and
price listings of the neighborhood where the property under appraisal is
located indicates land value within the range of P10,000.00 to
P15,000.00 per square meter for residential lots while commercial lots
along Gen. E. Aguinaldo Highway are range[d] from P10,000.00 to
P20,000.00 per square meters (sic).
With this data and making the proper adjustment with respect to the
location, area, shape, accessibility, and the highest and best use of the
subject property, we estimate the market value of the subject land at
P10,000.00 per square meter, as of this date September 10, 1999.22
It is evident that the above conclusions are highly speculative and devoid
of any actual and reliable basis. First, the market values of the subject
propertys neighboring lots were mere estimates and unsupported by
any corroborative documents, such as sworn declarations of realtors in
the area concerned, tax declarations or zonal valuation from the Bureau
of Internal Revenue for the contiguous residential dwellings and
commercial establishments. The report also failed to elaborate on how
and by how much the community centers and convenience facilities
enhanced the value of respondents property.23 Finally, the market sales
As correctly invoked by NAPOCOR, a commissioners report of land

prices which is not based on any documentary evidence is manifestly
hearsay and should be disregarded by the court.24
The trial court adopted the flawed findings of the commissioners hook,
line, and sinker. It did not even bother to require the submission of the
alleged "market sales data" and "price listings." Further, the RTC
overlooked the fact that the recommended just compensation was
gauged as of September 10, 1999 or more than two years after the
complaint was filed on January 8, 1997. It is settled that just
compensation is to be ascertained as of the time of the taking, which
usually coincides with the commencement of the expropriation
proceedings. Where the institution of the action precedes entry into the
property, the just compensation is to be ascertained as of the time of the
filing of the complaint.25 Clearly, the recommended just compensation in
the commissioners report is unacceptable.
Just compensation is defined as the full and fair equivalent of the
property taken from its owner by the expropriator. The measure is not
the takers gain, but the owners loss. The word "just" is used to intensify
the meaning of the word "compensation" and to convey thereby the idea
that the equivalent to be rendered for the property to be taken shall be
real, substantial, full, and ample.26 Indeed, the "just"-ness of the
compensation can only be attained by using reliable and actual data as
bases in fixing the value of the condemned property.
The trial court should have been more circumspect in its evaluation of
just compensation due the property owner, considering that eminent
domain cases involve the expenditure of public funds.
Law __ Evidence
Prof. Avena
As to the resolution of the PAC-Cavite advanced by NAPOCOR, which

pegged the fair market value of the property at P3,500.00 per sq m, it
can only serve as one of the factors in the judicial evaluation of just
compensation, along with several other considerations.27 NAPOCOR
cannot demand that the PAC-Cavite resolution be substituted for the
report of court-appointed commissioners in consonance with the firm
doctrine that the determination of just compensation is a judicial
function.28
Hence, the legal basis for the determination of just compensation being
insufficient, the ruling of the RTC and the affirming Decision and
Resolution of the CA ought to be set aside.
WHEREFORE, the petition is GRANTED. The January 14, 2000 Order of
the Regional Trial Court, Branch 120, Imus, Cavite, and the September
28, 2007 Decision and the December 17, 2007 Resolution of the Court of
Appeals are hereby Set ASIDE. This case is remanded to the trial court
for the proper determination of just compensation, in conformity with
this Resolution. No costs.
SO ORDERED.
14. HEARSAY
Page 129 of 149
Law __ Evidence
Prof. Avena
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-45283-84 March 19, 1982

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LUCILA VALERO y VARILLA, defendant-appellant.
ERICTA, J.:
Lucila Valero alias Rosing and Alfonsito Valero alias "Pipe" were accused
in the Municipal Court of San Rafael, Bulacan in two separate complaints,
one of double murder and the other of frustrated murder.
After the preliminary investigations, the complaints against Alfonsito
Valero were dismissed "on the ground that he is a deaf-mute and,
therefore, all the proceedings against him were beyond his
comprehension". Lucila Valero remained as the sole defendant. After the
trial in the Court of First Instance of Bulacan where the records were
later forwarded for appropriate proceedings, the trial Court convicted
Lucila Valero of the complex crime of double murder and frustrated
murder and imposed upon her the extreme penalty of death.
Hence, this automatic review.
The following facts are not disputed. In the morning of February 22,
1969 between 7:00 and 9:00 o'clock of Saturday, Michael, aged 9
months, and Annabel, aged 1 year and 9 months, both of whom are the
children of Ceferino Velasco, died of poisoning after eating bread
14. HEARSAY
Page 130 of 149
containing endrin, a commercial insecticide. Likewise, Imelda, another

minor child of Ceferino, tasted the poisoned bread and would have died
as a consequence were it not for the timely medical assistance given her.
All these three minor children were in the balcony of their house at San
Rafael, Bulacan, when they partook of the poisoned bread.
On the same morning at about the same time that the three minor
children partook of the poisoned bread, three (3) puppies of Ceferino
Velasco under the balcony also died of poisoning.
Earlier that same morning at about 6:00 o'clock, Ceferino Velasco, father
of the victims, was seen throwing poisoned rats into a river near his
house. Investigations were conducted by Cpl. Bucot and Pat. Arturo
Ventuso both of the Police Department of San Rafael, Bulacan. Upon their
arrival, they saw the dead bodies of Michael and Annabel in the house of
Ceferino Velasco and the dead puppies under the balcony. They also saw
several pieces of sliced pan scattered in the sala of the house, near the
balcony, and under the balcony. They picked up some pieces of sliced
bread under the balcony, wrapped them in a piece of paper and
submitted them to a chemist for examination. It was found that the
bread contained endrin, a poisonous insecticide. The two minor children,
Michael and Annabel, were also autopsied and the necropsy reports
showed that both children died of poisoning by endrin. Samples of the
blood and internal organs of both Michael and Annabel were also
examined by a chemist and it was found that they contained endrin.
The evidence of the prosecution and the defense conflict as to the source
of the poisoned bread. The evidence of the prosecution shows that the
poisoned bread was given to the children by Alfonso Valero alias Pipe, a
deaf-mute brother of the defendant Lucila Valero, and that it was Lucila
Valero who gave the bread to Pipe for delivery to the minor children. On
the other hand, the defendant Lucila Valero denies that she ever gave
bread to her deaf-mute brother, Pipe, for delivery to the minor children.
The evidence for the defense tends to show that the Velasco children
Law __ Evidence
Prof. Avena
might have eaten one of the sliced poisoned bread used by their father in
poisoning rats in his garden.
It is not denied that Ceferino Velasco has a vegetable garden in his yard.
He uses an insecticide called Polidol to spray the vegetable and uses the
same insecticide to kill rats. According to the testimony of the defendant,
which was never rebutted by Ceferino Velasco, Ceferino also planted
vegetables in the yard of the defendant whose house is just across the
street from the house of Ceferino Velasco. She further testified that
Ceferino dipped sliced bread into an insecticide called endrin, dried
them up and later used the poisoned bread as a bait to kill rats in the
yard located by the side of his house. 1
More of the controversial facts will be presented in the following
discussion.
We first discuss and assess the evidence for the prosecution. Out of the
nine witnesses for the prosecution three witnesses, namely Rodolfo
Quilang, Federico Jaime, and Ceferino Velasco were presented to prove
that the defendant Lucila Valero gave the poisoned bread to her deafmute brother Pipe with the alleged instruction to deliver the bread to
the Velasco children.
We now analyze the testimonies of these three witnesses:
14. HEARSAY
Page 131 of 149
the gate of Ceferino Velasco's house where he (Quilang) was standing.

Upon receipt of the wrapped object, Pipe allegedly proceeded towards
Velasco's house.
According to Quilang, he was "in the act of leaving Velasco's gate when
Pipe "was entering the gate of Ceferino Velasco". 3
Whether or not Quilang saw the delivery to the Velasco children of the
"something wrapped in a piece of paper" is a question that involved this
star prosecution witness into a series of self-contradictions, aptly called
by the appellant's counsel as a "series of basic somersaults" which
earned for Quilang a reprimand from the trial Judge, who, surprisingly
later, based the conviction mainly on the testimony of this flip-flopping
witness.
In his affidavit, dated March 8, 1972 (Exhibit "4", p. 437, Record of
murder case) or three (3) years after the poisoning of the Velasco
children, Quilang stated that he actually saw Pipe deliver the wrapped
object to the children. The statement reads as follows:
3. Na nakita kong si Pipe ay nagpunta sa bahay nina
Ceferino Velasco at dala-dala ang inabot ni Lucilang
nakabalot sa papel, at noong dumating sa may hagdanan
ni Ceferino, ay nakita kong iniabot ang nakabalot sa mga
bata na anak ni Ceferino Velasco.
1. Rodolfo Quilang
Only Rodolfo Quilang, among the nine prosecution witnesses testified
that he saw the defendant Lucila Valero deliver "something wrapped in a
piece of paper" 2 to her deaf-mute brother Pipe with the alleged
instruction by sign language to deliver the same to the Velasco children.
Quilang never saw what was inside the piece of paper. At the time
Quilang saw the delivery to Pipe of the wrapped object, the defendant
and her brother were in the balcony of their house, which was just near
Three years later during the trial on September 15, 1975, he declared on
cross-examination, as follows:
Q. When you left the
residence of Demetria and
Severino (sic) Velasco,
Pipe was just entering the
Law __ Evidence
Prof. Avena
14. HEARSAY
Page 132 of 149
gate of that house, is it

not?
Q. And you, of course,

realized that you said that
under oath?
A. Yes.
A. Yes.
Q. In other words, you did
not see Pipe give that
something wrapped in a
piece of paper to anybody
in the premises because
you have already left?
Q. Now, in your statement,

dated March 8, 1969
(should be March 8, 1972)
which was also under
oath, you stated that you
saw Pipe give that thing
wrapped in a piece of
paper to the children of
Severino (sic) and
Demetria Velasco, are you
telling that is also true?
A. Really not.
Q. Are you sure of that?
A. I did not really see. 4
When confronted with the contradiction, Quilang reiterated that he did
not see Pipe deliver the bread, in the following testimony:
Q. You did not answer the
question, you stated in
open court that you did
not see Pipe give the
bread to the children of
Ceferino and Demetria
Velasco is that correct?
A. Yes. 6
The judge must have been so flabbergasted with the inconsistencies that
he, himself, propounded the following question:
Court:
Q. The Court will ask you,
did you see Pipe hand
over to the deceased
children that something
which was wrapped in a
piece of paper?
A. I really said that. 5

On being pressed further to explain the contradiction, Quilang made the
absurd explanation that the self-contradictory statements were both
correct. Thus:
A. Yes, sir. 7
Law __ Evidence
Prof. Avena
14. HEARSAY
The confusing inconsistencies prompted the Court to proceed further as

follows:
Q. A while ago, you were
asked by Atty. Rodrigo.
You clearly state that you
did not see Pipe hand over
this wrapped thing in the
paper, do you remember
that?
Page 133 of 149

explain these inconsistent
statements?
A. The truth of the matter
was that he handed over. 9
Convinced that Quilang was a lying witness, the trial Judge could not
help but explode an expletive in Tagalog during the cross-examination,
as follows:
Atty. Rodrigo:
A. Yes, sir.
Q. The Court is now
confused, which of these
statements it will believe,
do you realize that these
two statements are
contradictory to each
other? 8
After some evasive answers in this attempt to extricate himself from this
web of self-contradictions, the Court insisted as follows:
Q. You are not answering
the question, in fact, I
remember having asked
you whether or not you
saw Pipe hand over this
something wrapped to the
children and you said that
you did not see, and now
you say you saw, can you
Q. Did you see that

wrapped thing being given
or you were just guessing?
A. I saw that he handed
over.
Q. But I thought, Mr.
Quilang, that when Pipe
was just entering the gate
of Ceferino Velasco, and
Demetria Velasco, you
were already departing
from the place and that
you have already left, and
this is the reason why you
did not see Pipe handed
over that something
wrapped on a piece of
paper?
Law __ Evidence
Prof. Avena
14. HEARSAY
A. I was not able to say
that.
Court:
Ano ka ba? Narinig kong sinabi mo iyon ah! 10
The tendency of Quilang to prevaricate is shown not only in his selfcontradictory statements on the witness stand but also in the other
portions of the record. The first statement of Quilang (Exhibit "4", p. 437,
Record of the Murder case) is dated March 8, 1972. This date appears
twice in the affidavit, first at the end of the affidavit and second, in the
jurat. In both places of the affidavit, the words "March" and "1972" are
typewritten by the same typewriter used in typing the entire affidavit.
The date, however, was left blank so that originally what appeared at the
end of the affidavit and in the jurat was practically "March 1972 ".
Apparently, the affidavit must have been prepared in March of 1972. The
date "8", presumably the date of the swearing before the Fiscal, was
typewritten with a different typewriter on the blank space.
On the witness stand, Quilang stated that he made an affidavit on
February 23, 1969. 11 He must have made this statement to make it
appear that he was not an "eleventh-hour witness" as alleged by the
defense. When confronted with the discrepancies in the date appearing
in his affidavit, to wit, March 8, 1972, and his testimony on the witness
stand, he insisted that the correct date was February 23, 1969 and that
either the Fiscal or the one acting in his behalf committed the error in
indicating the date in his affidavit. 12 It is incredible that a Fiscal
administering the oathtaking on February 23, 1969 and signs the jurat
postdates the oath-taking to March 8, 1972, three years later.
There are other equally strong considerations indicating the lack of
credibility of Quilang. He is what the appellant's counsel calls an
"eleventh-hour witness". When the complaint for frustrated murder and
Page 134 of 149
the complaint for murder, both dated March 11, 1969, were filed with
the Municipal Court of San Rafael, Bulacan, Rodolfo Quilang was not
listed as one of the several witnesses. Quilang never made any statement
to the police who initially investigated the case nor to the Philippine
Constabulary which made its own investigation. When the Municipal
Court asked searching questions from several witnesses during the first
stage of the preliminary investigation on March 12, 1969, only Ceferino
Velasco, Concepcion Velasco, Delfin Senorosa, Federico Jaime and
Demetria Manalastas were investigated. Rodolfo Quilang was not one of
them. 13
Again, when the information for frustrated murder (pp. 87 to 88, Record
of Frustrated Murder case) and the information for murder (p. 76,
Records of Murder case) were filed in February 1971, the star witness,
Rodolfo Quilang, was not listed among the nine (9) prosecution
witnesses. Then on September 15, 1975 or six (6) years after the
tragedy, Quilang was suddenly sprung as the star witness, the only
witness who allegedly saw the delivery by the defendant to Pipe of
"something wrapped in a piece of paper" with the alleged instruction by
sign language to deliver the same to the Velasco children. Without the
testimony of Quilang, there would be no evidence to show that the
poisoned bread which was allegedly delivered by Pipe to the Velasco
children came from the defendant. Realizing that there was a missing
link, the prosecution thought of presenting Quilang to provide the
missing link six years after the occurrence of the tragedy.
This witness, Aniceto Decalos, a neighbor and old friend
of Ciriaco Jimenez, like the alleged eyewitness Candido
Autor did not figure in the list of witnesses for the
prosecution, either in the criminal complaint filed by PC
Capt. Golez or in the Fiscal's indictment. His name was
not amongst those who gave affidavits to back up the
criminal charge. This gives the impression that Aniceto
Decalos, the neighbor of the deceased, was but an
Law __ Evidence
Prof. Avena
14. HEARSAY
Page 135 of 149
eleventh-hour witness. To take his testimony on its face

value, we fear, is to rate truth so lightly. 14
A. I was asking him as to

what happened to the
children and the sign
made by him was like this.
(Witness demonstrated by
one of his hands
demonstrating some kind
of height and at the same
time the left hand pointing
upwards where the
children were.)
2. Federico Jaime and Ceferino Velasco

On the other hand, both Ceferino Velasco and Federico Jaime did not see
the delivery by the defendant to her deaf-mute brother "something
wrapped in a piece of paper". They never saw or heard her giving any
instruction to Pipe to deliver the wrapped object to the children. Both
claimed that they learned or obtained the information from Pipe after
interviewing him by means of sign language. Which the trial Court
accepted as competent, trustworthy and credible
xxx xxx xxx
The following testimony of Federico Jaime speaks for itself:
Q. Will you please stand
up and demonstrate to
this Honorable Court how
you talked to him (Pipe)
through signs?
A. When I went down, I
made this sign to him.
(Witness was waiving his
two hands with his palms
down and both hands
horrizontal along the
waist.)
Q. When you made that
sign, what was the
meaning or Idea that you
wanted to convey ?
Q. What do you mean by

the sign when your right
hand indicating some
height and your left hand
pointing towards upward?
A. What I wanted to imply
is, I was asking Pipe as
to who gave food to
them,your Honor.
Q. Why did it occur to you
to go down and try to
communicate with Pipe?
A. I saw him down below
and he was making signs
and I asked the children as
to what happened and he
Law __ Evidence
Prof. Avena
14. HEARSAY
Page 136 of 149
told me that the children

were given bread.
upward, what was the

answer of Panchito?
Q. What came into your

mind when you saw Pipe
demonstrating in the
manner that you
described ?
A. I inquired from him

through signs as to who
gave bread to the
children by demonstrating
like this (witness
demonstrated by
seemingly eating
something inside the
house with his right hand
and his left hand index
finger towards the front
and then pointed towards
his left index finger).
A. I just wanted to know as

to who gave food to the
children, your Honor.
Q. Did you catch any
significance in those signs
that you saw to Pipe?
A. Yes, your Honor.
Q. What significance that
you had in mind?
A. Because the children
said that it was Pipe who
gave bread, your Honor.
Q. Towards what direction

was Panchito pointing his
index finger ?
A. To the sister, sir.
Q. And who is that sister?
A. Precila (sic), sir. Precila
(sic) Valero. 15
Court:
Proceed.
Fiscal Calderon, Jr.
Q. When you made that
sign pointing one hand
There is nothing in the foregoing testimony pointing to the defendant

Lucila Valero as the source of the poisoned bread. What is evident is
nothing but confusion. What Jaime asked from Pipe was "Who gave the
bread to the children?" The evidence of the prosecution already shows
that Pipe gave the bread to the children. In reply, it seems that Pipe
pointed to the defendant who was standing nearby.
Law __ Evidence
Prof. Avena
14. HEARSAY
Here, the confusion is clear. Pipe could not have said that his sister
handed over the poisoned bread to the children because the evidence of
the prosecution shows that Pipe himself, gave the bread to the children.
It is clear that Pipe did not understand the sign language of Jaime and
vice-versa.
The testimony of Ceferino Velasco, father of the victims, did not help the
prosecution much either. The following is Ceferino's testimony:
Page 137 of 149

demonstrated by swaying his right arm
and pointing his forefinger sidewise.)
Q. Where was Lucila Valero at the time
that Alfonsito was demonstrating to you
his answer?
A. She was there on the side of the street,
sir. 16
Witness:
Upon seeing Ponsito I asked him what was that and he
answered me that it was a piece of bread and he told me
that she was the one who caused the giving of the bread,
sir. (witness pointing to the accused Lucila Valero)
Atty. Rodrigo, Jr.
I would like to make of record that during the narration
as to how he asked Alfonsito, the witness was only
demonstrating by using his index finger moving up and
down, your Honor.
Fiscal Calderon, Jr.
Q. When you first asked
that question who gave
the bread to you, how did
Alfonsito answer?
A. After having given the bread, I asked
him who gave the bread, and he said that
the bread came from her (witness
There is nothing in the aforequoted testimony indicating that the deafmute, Pipe, pointed to her sister Lucila Valero as the source of the
poisoned bread. We have examined the entire transcript of the
stenographic notes, and, except the aforequoted portions of the
testimony of Federico Jaime and Ceferino Velasco, there is nothing in the
record showing that Pipe communicated to the prosecution witnesses by
comprehensible sign language that his sister was the source of the
poisoned bread.
Aside from the foregoing observation, there are several compelling
reasons that should have made the trial Court reject the testimony of
both Jaime and Velasco.
Pipe who was the alleged source of the vital information for the
prosecution was never presented as a witness either for the prosecution
or for the defense. Jaime and Velasco were presented as prosecution
witnesses to convey to the Court what they learned from Pipe by sign
language.
The evidence is purely hearsay. 17 The presentation of such evidence
likewise violates the principle of res inter alios acta.The rights of a party
cannot be prejudiced by an act, declaration, or omission of another. 18
Law __ Evidence
Prof. Avena
With particular reference to the testimony of Ceferino Velasco, its

admission cannot be justified by claiming that it is a part of the res
gestae. When Pipe allegedly revealed to Ceferino Velasco that the source
of the poisoned bread was the defendant, the children had not eaten or
tasted it. Nobody was yet poisoned. Stated otherwise, there was no
startling Occurrence yet. 19
With reference to the testimony of Jaime, there is no showing that Pipe
made the extrajudicial revelation spontaneously when he was still under
the influence of a startling occurrence. Pipe made his extrajudicial
revelation not spontaneously but after an interview through the
complicated process of sign language.
The failure of the defense counsel to object to the presentation of
incompetent evidence, like hearsay evidence or evidence that violates
the rule of res inter alios acta, or his failure to ask for the striking out of
the same does not give such evidence any probative value. The lack of
objection may make any incompetent evidence admissible. 20But
admissibility of evidence should not be equated with weight of evidence.
Hearsay evidence whether objected to or not has no probative value. 21
To give weight to the testimonies of Federico Jaime and Ceferino
Velasco, whether considered as hearsay evidence or as part of res gestae
and make the same the basis for the imposition of the death penalty
gravely violates the constitutional right of the defendant to meet the
witnesses face to face and to subject Pipe to the rigid test of crossexamination, the only effective means to test the truthfulness, memory,
intelligence, and in this particular case, the ability of the deaf-mute,
Alfonso Valero alias Pipe, to communicate with the outside world. In
conflict between a provision of the constitution giving the defendant a
substantive right and mere technical rules of evidence, we have no
choice but to give effect to the constitution.
14. HEARSAY
Page 138 of 149
The cross-examination of Pipe, the source of the vital information for the
prosecution, would have shown clearly his incompetence as a witness.
During the preliminary investigation in the Municipal Court, experts on
deaf-mutes like Belen Herreros who is the official interpreter of the only
school for the deaf and the blind in the Philippines, assisted by Mrs.
Felicidad Vinluan who is the principal of the school of the deaf and the
blind, Mesdames Gilda Tatum and Salud Natividad, examined Alfonsito
Valero alias Pipe and reported to the Municipal Court that "questions
addressed to him (Alfonso Valero) and answers given by him cannot be
accurately interpreted". 22
As a result of the testimonies and the report made by the
aforementioned experts, the Municipal Court dismissed the murder and
frustrated murder cases against Alfonsito Valero, alias Pipe, who was
then the co-accused of Lucila Valero, "on the ground that he (Pipe) is a
deaf-mute and, therefore, all the proceedings against him were beyond
his comprehension". 23
Even prosecution witnesses Ceferino Velasco and Federico Jaime
admitted on cross-examination that their interpretations of the sign
language of Pipe were only guess work.
Thus, Ceferino admitted on cross-examination:
Q. As a matter of fact, most of your
interpretation would be only guess work
on your part, is it not?
A. Yes, sir. 24
Jaime practically made a similar admission, as follows:
Q. When you were requested to
demonstrate how you conveyed the Idea
Law __ Evidence
Prof. Avena
14. HEARSAY
Page 139 of 149
to Pipe about the giving of the bread to

the children, you pointed to a height, is it
not?
bibingka, star-apple or for

anything else?
A. witness gave no
answer. 25
A. Yes, sir.
Q. How do you demonstrate to Pipe if you
wanted to convey that what is to be taken
is star-apple?
Fiscal Calderon:
Obviously the trial Court committed the grave error of accepting, and
worse still, of giving weight to the testimonies of Federico Jaime and
Ceferino Velasco interpreting the alleged extrajudicial information to
them by sign language of Pipe, when the source of the information
himself, Alfonsito Valero alias Pipe, would have been an incompetent
witness had he taken the witness stand.
I object, your Honor.

When Jaime allegedly learned from Pipe that the latter's sister was the
source of the poisoned bread, the defendant was only at the gate of the
Velascos near Jaime but he did not confront her.
Court:
May answer.
Q. When Pipe pointed to

Lucila and when you gave
the meaning to that sign
that it was Lucila who
offered Pipe to give the
bread to the children, did
you (Federico Jaime
confront Lucila
immediately?
A. Like that also, sir. (witness

demonstrated to be putting something in
his mouth.)
Q. In other words, anything which will be
taken by mouth, you just use the same
sign language?
A. Yes, the same sign, sir.
Q. So that it would be safe
to conclude that Pipe
might have
misunderstood your signs.
He could have
misunderstood it for rice,
A. No, sir.
Q. Did it not occur to you (Federico Jaime to confront,
Lucila considering that you already suspected that it was
her (sic) who caused the poisoning of the children ?
A. No, sir. I did not. 26
Law __ Evidence
Prof. Avena
The natural reaction of Jaime who is the uncle of the mother of the
victims 27, upon learning the killer of his relatives would have been a
violent action or at least an angry confrontation. Neither did Ceferino
Valero confront Lucila Valero upon allegedly learning that the latter
poisoned his children.
Q. After allegedly knowing from Alfonsito that the bread
was allegedly given to him by Lucila, did you (Ceferino
Velasco) confront her?
14. HEARSAY
Page 140 of 149
When confronted during the cross-examination with the previous

affidavit (Exhibit "1-d"), Ceferino Velasco admitted that he made the
answers in the affidavit.
Q. You also stated that Alfonsito, by
means of sign, told you that the bread
came from his sister, Lucila, the accused
in this case?
A. Yes, sir.
A. No, sir.
Q. You are sure of that?
Q. As a matter of fact, you never confronted her until you
filed this case about the poisoning of your children?
A. Yes, sir.
A. No, sir. I have been very patient with her since the
beginning. 28
Q. Let me now read to you

portion of Exh. "1"
T Nalalaman ba ninyo
kung mayroong nagbigay
kay Pipe ng tinapay na
ibinigay sa inyong anak?
Moreover, when Ceferino Velasco made a sworn statement on February

25, 1969 or three (3) days after the poisoning of his children, he
declared that he did not know who gave the poisoned bread to his
children, thus:
S Ang nalalaman ko
lamang po ay sa kanila
siya galing. Hindi ko po
alam kung sino ang
nagbigay sa kanya". Do
you remember having
given that answer?
T Nalalaman ba ninyo kung mayroong nagbigay kay

Pipe ng tinapay na ibinigay sa inyong anak?
S Ang nalalaman ko lamang po ay sa
kanila siya galing hindi ko po alam kung
sino ang nagbigay sa kanya. 29
But when he took the witness stand on July 23, 1975 or six years later,
he declared that on that very morning of February 22, 1969, he learned
from Pipe, when the latter was in the act of delivering the bread to the
children, that the source of the bread was the defendant Lucila Valero. 30
A. Yes, sir.
Law __ Evidence
Prof. Avena
14. HEARSAY
Page 141 of 149
Q. You affirm that answer

under your present oath?
remember having seen Mr.

Ceferino Velasco?
A. Yes, sir. 31
A. I was fetched at home,

sir.
This answer prompted the Court to remark: "There seems to be

inconsistency". 32 We may add that the inconsistency is on the very fact
in issue, namely, the guilty participation of Lucila Valero.
When further repeatedly asked by the defense counsel why Ceferino did
not state in his affidavit (Exh. 1-d) that he learned that Lucila was the
source of the poisoned bread, he gave irresponsive and evasive
answers. 33
When a witness makes two sworn statements and these
two statements incur in the gravest contradictions, the
Court cannot accept either statements as proof. 34
A witness who changes his name and statements, like a
Chameleon changes color, does not inspire confidence. 35
Obviously, Ceferino Velasco is a lying witness. If Ceferino Velasco really
learned from Pipe that Lucila Valero poisoned his three children, he
might have become violent. Surprisingly, he kept quiet. He did not
confront Lucila Valero. 36
The reason is that the first suspicion of Ceferino Velasco when his three
children were still suffering from the effects of the poison was that his
children were "nausog" (victim of witchcraft). Thus, testified Onofre
Adriano, a 73-year old relative of Ceferino Velasco:
Q. On February 22, 1969
at around 9:00 o'clock in
the morning, do you
Q. Who fetched you in

your house?
A. Ceferino Velasco, sir.
Q. Why did he fetch you in
your house?
A. Because according to
him one of his children is
sick and might have been
"nausog".
Q. Why did he fetch you
for that purpose?
A. I have a knowledge in
the curing of "nausog",
sir. 37
Demetria Manalastas, mother of the victims, also testified:
Q. While you were at the
market place of Baliuag,
what happened?
A. A son of mine came to
call me, sir.
Law __ Evidence
Prof. Avena
14. HEARSAY
Page 142 of 149
Q. What is the name of

your son?
bagay" meaning, "very trivial". 41 The quarrel was not a sufficient cause
to commit a heinous crime.
A. Francisco Velasco, sir.
This leaves Us speculating as to the source of the poisoned bread.

Rodolfo Quilang stated that he saw the defendant give Pipe "something
wrapped in a piece of paper." According to Ceferino Velasco in his
Affidavit of February 25, 1969, Pipe gave to his children "isa pong
pandesal". 42 He practically reiterated this statement during his
testimony on July 23, 1975 when he described what Pipe allegedly
brought as "just one piece of wrapped bread". 43
Q. Why did Francisco fetch

you?
A. He said that the children were "nausog",
sir. 38
Aside from the weakness of the evidence for the prosecution, there are
other considerations which negate the guilt of the defendant.
There was no motive for Pipe and Lucila Valero to poison the three
children. Both Pipe and Lucila Valero loved the children. Ceferino
Velasco admitted that even when Pipe was only a small boy, the latter
frequented his house to visit his children. 39 When the children were
dying because of the poison, Pipe alternately fanned Michael and
Annabel.
The prosecution, however, claims that the motive of the poisoning was
the quarrel in the morning of February 21, 1969 between Demetria
Manalastas, mother of the victims, and the defendant Lucila Valero. The
cause of the quarrel was the interference of the defendant to protect the
children from the scolding and maltreatment to their own mother. The
interference was resented by Manalastas prompting her to say to the
defendant "Don't interfere in the matter because I am scolding these
children of mine." 40 The defendant is not a relative of the Velasco
children. Her intervention in their behalf only shows her affectionate
concern for them. The defendant quarrelled with Demetria Manalastas,
not with the Velasco children. There is no motive whatsoever for the
defendant to poison the children. Even Ceferino Velasco, father of the
victims, stated that the cause of the quarrel was "Wala pong kabagay-
But when the police investigated the premises of the house of Ceferino
Velasco in the morning of February 22, 1969, they found not only one
pandesal but "several sliced pan" scatterred in the sala, near the balcony,
and under the balcony. 44 According to the defendant, in her testimony
not rebutted by the prosecution, Ceferino Velasco, who was her tenant,
dipped sliced pieces of bread in endrin dried them up and used them as
bait in his barn. As a matter of fact, at 6:00 o'clock in the morning of
February 22, 1969, Ceferino Velasco threw into a nearby river a long
string of poisoned rats. Three puppies died of poisoning under the
balcony. The rats, the dogs, or maybe even his minor children must have
found the poisoned slices of bread somewhere in the barn or in the
house, scattered them, and the children, not knowing the danger of the
poison, ate them.
The thought that he might have poisoned his own children must have
caused Ceferino Velasco some kind of trauma. So galling to a father is the
thought that he, himself, might have caused the death of his two children
and the near death of a third child, albeit unintentionally, that his natural
reaction is to escape from it by throwing the blame to someone else not
only to appease his own conscience but also to avoid embarassment
before his relatives, friends and neighbors.
Law __ Evidence
Prof. Avena
The tragic poisoning of the three children is unfortunate. The tragedy

was compounded when the trial Court imposed the death penalty on the
accused although the evidence against her does not justify a conviction.
Inspite of the self-contradictions of Rodolfo Quilang on very material
points noticed by the trial Judge, himself, Quilang's obvious tendency to
prevaricate and the fact that he is what the appellant's counsel calls an
"eleventh-hour witness", which is true, and inspite of the incompetence
of the testimonies of Federico Jaime and Ceferino Velasco whose
testimonies are hearsay evidence, and the practical impossibility of
interpreting correctly the sign language of Pipe, the trial Judge readily
accepted their testimonies as basis for imposing the death penalty in
gross violation of the hearsay rule and the constitutional right of the
accused to meet the witness face to face (in the instant case, the deafmute, Pipe), and to cross-examine Pipe in order to determine his ability
to communicate with the outside world.
Realizing that there is completely no motive for the defendant to commit
the heinous crime, the trial Judge conjured up something as the probable
cause that might have impelled the defendant to commit the crime. The
conjecture of the Judge is stated, thus:
There is something disquieting about those seemingly
unfading smiles on the face of the accused; with her
sharp, penetrating look, her unsolicited smiles are clues
to her real personality; they forebode some out-of-the
ordinary dispositions in the inner recesses of her mind;
perhaps, only a trained psychiatrist or an experienced
psychologist could fathom or decipher the meaning of
this characteristic of the accused; it is unfortunate that
the prosecution and the defense have chosen not to delve
into the personality of the accused; however, because of
these queer manifestations on the facial expressions of
the accused, could she have intended to produce the
gravity of her felonious act; had she a fore-knowledge
14. HEARSAY
Page 143 of 149

that the poisons used to kill rats or insects would also
cause death to the children. Was her intention merely to
cause some malady or discomfort to the children to shout
and vent her hatred on the mother of the children. These
are some questions that find no definite answer from the
records of these cases; these questions notwithstanding,
the court strongly feels that it is not entirely improbable
for the accused to possess a violent or cruel disposition
... 45
In effect, motive was not necessary to compel the defendant to commit

the crime because according to the observation of the Judge, she was
suffering from some kind of psychiatric abnormality or mental disorder
that can make her violent.
It is most unfair for the trial Judge to unexpectedly spring the
aforementioned observation in his decision without having mentioned it
in the course of the trial. Such a procedure is unfair to the accused, for
she is thereby deprived of her chance to either deny or affirm the truth
of such a very material finding which has important bearing in the
judgment. This procedure of the trial Judge practically denies the
accused the right to due process.
The surprising finding of the trial Judge goes far beyond mere
observation on the manner a witness testified, which admittedly may be
considered subjectively by the Judge in evaluating the credibility of the
witness. The surprising finding of the Judge relates not only to the
credibility of a witness but to the sanity of the defendant. Its aim is not
only to weigh the testimony of the witness but to establish a motive for
the crime charged.
WHEREFORE, finding that the prosecution has not established the guilt
of the defendant, We hereby reverse the decision of the trial Court and
instead render judgment of acquittal without cost.
Law __ Evidence
Prof. Avena
SO ORDERED.
Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Fernandez, Guerrero,
Abad Santos, De Castro, Melencio-Herrera, Plana and Escolin JJ., concur.
Separate Opinions
AQUINO, J., dissenting.:

I dissent. The lower court's judgment of conviction was based on the
following facts proven by the prosecution:
The spouses Ceferino Velasco and Demetria Manalastas resided in the
poblacion of San Rafael, Bulacan. Across the street from their house was
the house of their neighbor, Lucila Valero, whom they had known for a
long time. On February 21, 1969, Lucila and Demetria had a heated
altercation when Demetria scolded and maltreated her children and
Lucila interfered. Demetria resented the interference of Lucila. A
policeman pacified the two women.
In the morning of the following day, February 22, Demetria went to the
public market where she worked as a vendor. Her husband Velasco went
to the farm. Left in their house were their five small children named
Benilda, Concepcion, Imelda, Annabelle and Michael.
At about seven o'clock that morning, Rodolfo Quilang was at the gate of
the house of the Velasco spouses because he wanted to collect five pesos
as the price of two chickens which he had sold to Demetria. While
14. HEARSAY
Page 144 of 149
waiting for her, Quilang saw Lucila and her deaf-mute brother Alfonsito
in the balcony of their house.
Quilang saw Lucila giving Alfonsito something wrapped in a piece of
paper. Alfonsito crossed the street, went up the house of the Velasco
spouses and proceeded to the balcony where the Velasco children were
playing. Quilang noticed that Alfonsito gave to the children pieces of
bread which had been wrapped in a piece of paper.
Quilang left the gate and while on his way to the house of Demetria's
sister, he met Velasco coming from the farm. Velasco went to the corral
and fed his carabao. He saw his children playing in the balcony. He also
saw Alfonsito offering a piece of bread, first, to Concepcion, 7, who
refused it because she had already eaten her breakfast. Then, Alfonsito
offered it to Imelda who accepted it, tasted it and then dropped it on the
floor.
Annabelle, about twenty months old, picked it up, divided it and gave a
part of the bread to the baby, Michael, nine months old. The two ate the
pieces of bread. After eating the bread, Benilda noticed that Annabelle
and Michael turned pale. Their mouths frothed or had bubbles. Benilda
instinctively felt that something was wrong. She called her father who
was at the foot of the stairs.
Velasco went up and directed Benilda to take Annabelle to the hospital.
Velasco panicked and cried for help. Several persons came to his house.
One of them, Federico Jaime, on learning the cause of the Velasco
children's plight, confronted Alfonsito and, by means of sign language,
Jaime learned that the bread given by Alfonsito to the children came
from Lucila who at that time was in the balcony of her house witnessing
the commotion in the house of Velasco.
Law __ Evidence
Prof. Avena
Annabelle was not admitted to the hospital because medical treatment

would have been futile. She was brought home almost dead and placed
beside the baby Michael who was already dead.
Imelda was brought to the clinic of Doctor Artemio Marcelo who was
able to arrest the toxic effects of the poison. He treated her for about
three months. Luckily, she survived. Doctor Marcelo testified that she
would have died of toxemia had not timely medical treatment been
administered to her.
14. HEARSAY
Page 145 of 149
bread to her deaf-mute brother who had no criminal intent and who did
not know that the bread was poisoned. Alfonsito exhibited some
compassion for the children after he noticed that something had
happened to them. On the other hand, Lucila did not make any effort to
help the victims.
The trial court did not err in concluding that Lucila's guilt was proven
beyond reasonable doubt.
The investigation revealed that the same piece of bread which Alfonsito
had given to the children was eaten by some dogs which also died of
poisoning.
The trial court and the Solicitor General regarded the two murders and
the frustrated murder as a complex crime resulting from the single act of
Lucila in giving the poisoned bread to Alfonsito with the instruction
(made in sign language) that the same be fed to the Velasco children.
Hence, the death penalty was imposed.
Doctor Ernesto Brion, a medico-legal officer, and Andres Santiago, a

chemist, both of the National Bureau of Investigation, examined the
internal organs of Michael and Annabelle and found that they were
poisoned as a result of their having eaten pieces of bread containing
endrine, an insecticide.
The single criminal impulse of Lucila to poison the Velasco children gave
rise to a complex offense (See People vs. Peas, 66 Phil. 682; People vs.
Pincalin, L-38755, January 22, 1981, 102 SCRA 136).
Lucila denied any complicity in the poisoning of the Velasco children.

She declared that she and her brother had no motive for killing the
children who were very dear to them. Lucila said that Demetria was mad
at her (Lucila) because Lucila charged interest on the money which
Demetria had borrowed from Lucila's sister-in-law.
I vote for the imposition of reclusion perpetua on the accused, Lucila

Valero. The trial court did not award any indemnity. Lucila should be
adjudged liable to pay an indemnity of P24,000 to the Velasco spouses
for the death of Annabelle and Michael and to pay an indemnity of
P10,000 to Imelda Velasco.
BARREDO, J., concurring:
She testified that Velasco, who was her tenant on a parcel of land used as
a vegetable garden, used endrine on bread which was then dried and
later placed as a bait in the barn and that several rats were killed by
means of the bread dipped in the endrine solution.
The trial judge noted that Lucila had a "sharp, penetrating look" and on
the witness stand was always grinning (she had "unfading smiles"). The
trial judge found that there was no doubt that Lucila gave the poisoned
I concur. But I must say that the failure of the prosecution to present
Imelda as witness spoiled the cause of the prosecution. She could have
clarified the whole issue of who gave the poisoned bread to him.
Law __ Evidence
Prof. Avena
Separate Opinions
AQUINO, J., dissenting.:
I dissent. The lower court's judgment of conviction was based on the
following facts proven by the prosecution:
The spouses Ceferino Velasco and Demetria Manalastas resided in the
poblacion of San Rafael, Bulacan. Across the street from their house was
the house of their neighbor, Lucila Valero, whom they had known for a
long time. On February 21, 1969, Lucila and Demetria had a heated
altercation when Demetria scolded and maltreated her children and
Lucila interfered. Demetria resented the interference of Lucila. A
policeman pacified the two women.
In the morning of the following day, February 22, Demetria went to the
public market where she worked as a vendor. Her husband Velasco went
to the farm. Left in their house were their five small children named
Benilda, Concepcion, Imelda, Annabelle and Michael.
At about seven o'clock that morning, Rodolfo Quilang was at the gate of
the house of the Velasco spouses because he wanted to collect five pesos
as the price of two chickens which he had sold to Demetria. While
waiting for her, Quilang saw Lucila and her deaf-mute brother Alfonsito
in the balcony of their house.
Quilang saw Lucila giving Alfonsito something wrapped in a piece of
paper. Alfonsito crossed the street, went up the house of the Velasco
spouses and proceeded to the balcony where the Velasco children were
playing. Quilang noticed that Alfonsito gave to the children pieces of
bread which had been wrapped in a piece of paper.
Quilang left the gate and while on his way to the house of Demetria's
sister, he met Velasco coming from the farm. Velasco went to the corral
14. HEARSAY
Page 146 of 149
and fed his carabao. He saw his children playing in the balcony. He also
saw Alfonsito offering a piece of bread, first, to Concepcion, 7, who
refused it because she had already eaten her breakfast. Then, Alfonsito
offered it to Imelda who accepted it, tasted it and then dropped it on the
floor.
Annabelle, about twenty months old, picked it up, divided it and gave a
part of the bread to the baby, Michael, nine months old. The two ate the
pieces of bread. After eating the bread, Benilda noticed that Annabelle
and Michael turned pale. Their mouths frothed or had bubbles. Benilda
instinctively felt that something was wrong. She called her father who
was at the foot of the stairs.
Velasco went up and directed Benilda to take Annabelle to the hospital.
Velasco panicked and cried for help. Several persons came to his house.
One of them, Federico Jaime, on learning the cause of the Velasco
children's plight, confronted Alfonsito and, by means of sign language,
Jaime learned that the bread given by Alfonsito to the children came
from Lucila who at that time was in the balcony of her house witnessing
the commotion in the house of Velasco.
Annabelle was not admitted to the hospital because medical treatment
would have been futile. She was brought home almost dead and placed
beside the baby Michael who was already dead.
Imelda was brought to the clinic of Doctor Artemio Marcelo who was
able to arrest the toxic effects of the poison. He treated her for about
three months. Luckily, she survived. Doctor Marcelo testified that she
would have died of toxemia had not timely medical treatment been
administered to her.
The investigation revealed that the same piece of bread which Alfonsito
had given to the children was eaten by some dogs which also died of
poisoning.
Law __ Evidence
Prof. Avena
Doctor Ernesto Brion, a medico-legal officer, and Andres Santiago, a

chemist, both of the National Bureau of Investigation, examined the
internal organs of Michael and Annabelle and found that they were
poisoned as a result of their having eaten pieces of bread containing
endrine, an insecticide.
Lucila denied any complicity in the poisoning of the Velasco children.
She declared that she and her brother had no motive for killing the
children who were very dear to them. Lucila said that Demetria was mad
at her (Lucila) because Lucila charged interest on the money which
Demetria had borrowed from Lucila's sister-in-law.
She testified that Velasco, who was her tenant on a parcel of land used as
a vegetable garden, used endrine on bread which was then dried and
later placed as a bait in the barn and that several rats were killed by
means of the bread dipped in the endrine solution.
The trial judge noted that Lucila had a "sharp, penetrating look" and on
the witness stand was always grinning (she had "unfading smiles"). The
trial judge found that there was no doubt that Lucila gave the poisoned
bread to her deaf-mute brother who had no criminal intent and who did
not know that the bread was poisoned. Alfonsito exhibited some
compassion for the children after he noticed that something had
happened to them. On the other hand, Lucila did not make any effort to
help the victims.
The trial court did not err in concluding that Lucila's guilt was proven
beyond reasonable doubt.
The trial court and the Solicitor General regarded the two murders and
the frustrated murder as a complex crime resulting from the single act of
Lucila in giving the poisoned bread to Alfonsito with the instruction
(made in sign language) that the same be fed to the Velasco children.
Hence, the death penalty was imposed.
14. HEARSAY
Page 147 of 149
The single criminal impulse of Lucila to poison the Velasco children gave
rise to a complex offense (See People vs. Peas, 66 Phil. 682; People vs.
Pincalin, L-38755, January 22, 1981, 102 SCRA 136).
I vote for the imposition of reclusion perpetua on the accused, Lucila
Valero. The trial court did not award any indemnity. Lucila should be
adjudged liable to pay an indemnity of P24,000 to the Velasco spouses
for the death of Annabelle and Michael and to pay an indemnity of
P10,000 to Imelda Velasco.
BARREDO, J., concurring:
I concur. But I must say that the failure of the prosecution to present
Imelda as witness spoiled the cause of the prosecution. She could have
clarified the whole issue of who gave the poisoned bread to him.
Footnotes
1 tsn, pp. 13-14, October 27, 1976.
2 tsn, p. 5, September 15, 1975.
3 tsn, p. 6, Id.
4 tsn, p. 17, Sept. 15, 1975.
5 tsn, pp. 18-19, Id.
6 tsn, p. 19, Id.
7 tsn, p. 22, Id.
Law __ Evidence
Prof. Avena
8 tsn, p. 23, Id.
14. HEARSAY
Page 148 of 149

23 Order of the Municipal Court, p. 75 Record of Murder
case.
9 tsn, p. 24, Id.

24 tsn, p. 39, July 23, 1975.
10 tsn, pp. 24-25, Id.
25 tsn, pp. 15-16 Sept. 2, 1975.
11 tsn, pp. 12-13, Id.
26 tsn, p. 18, Id.
12 tsn, p. 13, Id.
27 tsn, p. 3, Id.
13 Exhibit "2", pp. 22-25, Record of the Murder case.
28 tsn, pp. 36-37, July 23, 1975.
14 People vs. Bulawin, 29 SCRA 710, 719.
29 Exh."1-d", p. 21, Record of Murder case.
15 tsn, pp. 6-8, September 2, 1975.
30 tsn pp. 3, 6, 9 to 10, Id.
16 tsn, pp. 9-10, July 23, 1975.
31 tsn, pp. 23-24, Id.
17 Rule 130, Section 30, Rules of Court.
32 tsn, p. 24, Id.
18 Rule 130, Section 25, Rules of Court.
33 tsn, pp. 24-25, Id.
19 tsn, p. 23, July 23, 1975.
34 Mondragon vs. Court of Appeals, 61 SCRA 511.
20 Savory Luncheonette vs. Lakas ng Manggagawang
Pilipino, et al., 62 SCRA 258.
21 People vs. Cabral, 58 Phil. 946 (unpublished) cited in
Francisco's Evidence, 1973 ed., p. 451; also in Moran's
Evidence, 1980 ed., p. 285; 3 Jones on Evidence, 2nd ed.,
p. 743.
35 People vs. Go Lee, 85 Phil. 718.

36 tsn, pp. 36-37, July 23, 1975.
37 tsn, p. 2, June 10, 1976.
38 tsn, p. 13, Oct. 10, 1975.
22 See Memorandum of defendants, p. 74, Records of

frustrated murder case.
39 tsn, p. 7, July 23, 1975.
Law __ Evidence
Prof. Avena
40 tsn, p. 11, October 10, 1975.

41 See Exh. "1", Sworn Statement of Ceferino Velasco, p.
8, Record of Murder case
42 Exh. "1-f", p. 7, Id.
43 tsn, p. 22, July 23, 1975.
44 tsn, pp. 3-4, November 17, 1975.
45 p. 29A, Appellant's Brief.
14. HEARSAY
Page 149 of 149

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13. RES INTER ALIOS ACTA

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and the Central Bank of the Philippines as security for advances

BOSTON BANK OF THE PHILIPPINES, (formerly BANK OF

13. RES INTER ALIOS ACTA

The spouses Manalo took possession of the property on September 2,

Sometime in June 1976, Manalo, Jr. constructed a business sign in the

13. RES INTER ALIOS ACTA

send the documents to CBM. However, she failed to do so.25 On

that he would abide by the terms and conditions of his original

13. RES INTER ALIOS ACTA

In its Answer to the complaint, the defendant interposed the following

13. RES INTER ALIOS ACTA

Boston Bank filed a motion for the reconsideration of the decision

13. RES INTER ALIOS ACTA

the respondents made a partial payment on the downpayment for the

respondents cite the ruling of this Court in Buenaventura v. Court of

Another egregious error of the CA, petitioner avers, is the application of

Respondents further posit that the terms and conditions to be

13. RES INTER ALIOS ACTA

appellate courts. Moreover, the existence of a contract of conditional sale

13. RES INTER ALIOS ACTA

13. RES INTER ALIOS ACTA

of such resumption of selling operations. The parties had also agreed to

13. RES INTER ALIOS ACTA

parties are in agreement that there had been no contract of conditional

Very truly yours,

The ruling of this Court in Buenaventura v. Court of Appeals has no

13. RES INTER ALIOS ACTA

indefinite. Case law is that, for a contract to be enforceable, its terms

contracts of conditional sale executed by XEI and Soller, Aguila and

13. RES INTER ALIOS ACTA

usage by implication into their agreement, if nothing is said to be

However, the respondents inexplicably failed to adduce sufficient

In determining whether the examples are numerous enough, and

13. RES INTER ALIOS ACTA

G.R. No. 177727

13. RES INTER ALIOS ACTA

January 19, 2010

HAROLD V. TAMARGO, Petitioner,

Franzielle.7 Columna was arrested in the province of Cagayan on

13. RES INTER ALIOS ACTA

During the preliminary investigation, respondent Licerio presented

13. RES INTER ALIOS ACTA

Columnas extrajudicial confession was not admissible against the

We find no merit in the petition.

13. RES INTER ALIOS ACTA

given situations and its existence depends to a large

Moreover, Judge Daguna failed to consider that Columnas extrajudicial

Had Judge Daguna reviewed the entire records of the

on a principle of good faith and mutual convenience, a mans own acts

The selectivity of respondent RTC Judge for purposes of resolving the

An exception to the res inter alios acta rule is an admission made by a

13. RES INTER ALIOS ACTA

Hence, we hold that the CA committed no reversible error in granting

Here, aside from the extrajudicial confession, which was later on

PRESBITERO J. VELASCO, JR.

13. RES INTER ALIOS ACTA

protest, Lucio Columna immediately said he could bet

2. Last week, Lucio Columna and I were again together in

Under Rule 45 of the Rules of Court.

Penned by Associate Justice Lucas P. Bersamin (now Supreme

Id., pp. 63-70.