1.)G.R. No.

L-25788 April 30, 1980

PACIFICO C. DEL MUNDO, petitioner, vs. THE HONORABLE COURT OF APPEALS, ANTONIO,
EUGENIA, DELFIN and MARCIANA, all surnamed ALVAREZ, and SIMPLICIO BALCOS,
respondents.DE CASTRO, J.:
Petitioner seeks in this petition for certiorari to reverse in toto the decision of the Court of Appeals
promulgated on 3 January 1966 in CA-G. R. No. 28276-R, entitled "Antonio Alvarez, Eugenia Alvarez,
Delfin Alvarez, Marciana Alvarez, and Simplicio Balcos, plaintiffs-appellants vs. Isidra de la Cruz,
Teodora Alvarez and Pacifico C. del Mundo, defendants-appellees, the dispositive portion of which
reads: 1
WHEREFORE, the extrajudicial partition executed by Isidra de la Cruz and Teodora
Alvarez on July 31, 1956 acknowledged before Notary Public Benjamin N. Domingo and
recorded as document No. 143 on page 43, book 1, series of 1956 of his notarial
registry, copy of which is attached to the records and marked as Exhibit G is hereby
declared null and void and of no force nor effect.
Transfer Certificate of Title No. 32529 of the land records for Quezon City is hereby
declared cancelled and of no force and effect. In lieu thereof, the Register of Deeds of
Quezon City is hereby ordered to issue a new Transfer Certificate of Title in the names
of Antonio Alvarez, Eugenia Alvarez, Delfin Alvarez, as co-owners pro indiviso in the
following proportions: To each of Antonio, Eugenia, Delfin, Marciana and Teodora all
surnamed Alvarez, 13/75 share in full ownership and 2/75 share in naked ownership, to
Isidra de la Cruz 10/75 share in full.
The Court of Appeals found undisputed the following facts.

Plaintiffs (herein private respondents) Antonio, Eugenia, Delfin and Marciana all
surnamed Alvarez are legitimate children of Agripino Alvarez and his first wife Alejandra
Martin. After the death of Alejandra Martin, Agripino Alvarez married Isidra de la Cruz in
February 1927 and they had one child named Teodora Alvarez.
On December 23, 1947, Agripino Alvarez died intestate, survived by his widow Isidra
and his five children, the four plaintiffs and Teodora.
On July 31, 1956, a public instrument entitled 'Extra-judicial Partition with Absolute Sale
of Shares' was executed by the widow Isidra and her daughter Teodora Alvarez (Exhibit
G) wherein, after reciting that they are 'the legal and absolute heirs, the first being the
wife and the second, is the daughter of the deceased Agripino Alvarez', they adjudicated
to themselves in equal shares the property covered by Transfer Certificate of Title No.
42562 of the land records for Rizal and in the same instrument, both Isidra and her
daughter Teodora sold the entire property to Pacifico C. del Mundo who registered the
instrument in August 1956. As a result of such registration, Transfer Certificate of Title
No. 32529 of the land records for Quezon City was issued in the name of del Mundo.

On February 10, 1958, the children of Agripino by his first wife sold to Simplicio Balcos
four tenths (4/10) undivided share in the property in question (which they claim as their
share in the estate of their father). The deed of sale has never been registered.
On May 31, 1958, said children by the first marriage of Agripino Alvarez and their
vendee Simplicio Balcos brought the present action against Isidra de la Cruz and her
daughter Teodora Alvarez as well as against the vendee Pacifico del Mundo before the
Court of First Instance of Rizal asking that judgment be rendered:
1. Declaring the Extra-Judicial Partition with Absolute Sale of Shares Annex 'B', null and
void;
2. Declaring null and void T.C.T. No. 32529, Registry of Deeds for Quezon City, and
reviving T.C.T. No. 42562, Registry of Deeds for the Province of Rizal;
3. Declaring the plaintiffs Alvarez' entitled to an undivided share of 1/10 each of the lot in
question with right to dispose of the same;
4. Ordering the defendant Pacifica C. del Mundo, married to Ester dela Cruz and
plaintiff Simplicio Balcos to enter into and agreement or extra-judicial petition of the
property in accordance with their participation as purchasers of the shares of the
original heirs;
5. Ordering the defendants to pay attorney's fees in the sum of P1,000.00 and to pay
the costs.
After trial the Court of First Instance of Rizal rendered its decision 3 dated 20 June 1960 dismissing
private respondents' complaint, holding that the property in question is the paraphernal property of
Isidra de la Cruz.
Their motion for reconsideration of the above decision having been denied, private respondents
appealed to the Court of Appeals the dispositive portion of whose decision was quoted at the
beginning of this decision, said Court sustaining the appeal thereby reversing the judgment of the
lower court.
Only petitioner Pacifico del Mundo filed a motion for reconsideration which was, however, denied by
the Court of Appeals on 21 February 1966. 4 Hence, the instant petition filed by him to review the
decision of the appellate court, following assignment of errors. 5
I
THE COURT OF APPEALS ERRED IN DECLARING THE PROPERTY IN QUESTION
AS CONJUGAL PROPERTY OF AGRIPINO ALVAREZ AND ISIDRA DE LA CRUZ AND
NOT AS PARAPHERNAL PROPERTY OF ISIDRA DE LA CRUZ ALONE.
II

THE COURT OF APPEALS ERRED IN ORDERING THE CANCELLATION OF

TRANSFER CERTIFICATE OF TITLE NO. 32529 OF THE REGISTRY OF DEEDS OF
QUEZON CITY WHICH IS IN THE NAME OF HEREIN PETITIONER APPELLANT.
III
THE COURT OF APPEALS ERRED IN ORDERING THE REGISTER OF DEEDS OF
QUEZON CITY TO ISSUE A NEW TRANSFER CERTIFICATE OF TITLE IN THE
NAMES OF ANTONIO ALVAREZ, EUGENIA ALVAREZ, DELFIN ALVAREZ, MARCIANA
ALVAREZ AND TEODORA ALVAREZ AS CO-OWNERS PRO-INDIVISO IN THE
FOLLOWING PROPORTIONS: TO EACH OF ANTONIO, EUGENIA, DELFIN,
MARCIANA AND TEODORA, ALL SURNAMED ALVAREZ, 13/75 SHARE IN FULL
OWNERSHIP AND 2/75 SHARE IN NAKED OWNERSHIP: TO ISIDRA DE LA CRUZ,
10/75 SHARE IN FULL.
The pivotal question thus presented in this petition is whether the property formerly covered by
Transfer Certificate of Title No. 42562 (Rizal) now Transfer Certificate of Title No. 32529 (Quezon
City) is the conjugal property of Agripino Alvarez and Isidra de la Cruz or the paraphernal property of
the latter alone. Petitioner maintains that it is the paraphernal property of Isidra de la Cruz as ruled by
the lower court because of two grounds, namely: 6 "(1) the admission by Agripino Alvarez in Exhibit F,
the deed of sale executed by Simplicio Dantes and Emilia Rivera of the property in question to Isidra
de la Cruz, that the said property is Isidras paraphernal property'; and (2) the said admission operates
as estoppel against Agripino Alvarez and/or his heirs, namely, the respondents-appellees in the
instant case, from claiming any interest in said property, adverse to that of Isidra de la Cruz and/or
transferee or persons privy to her.
Private respondents, on the other hand, seek to uphold the decision of the respondent Court of
Appeals which, as aforestated, ruled in favor of the conjugal nature of the property and discredited
the evidence of petitioner, as well as that of his co-defendants in the court a quo, regarding the
purchase of the property by Isidra de la Cruz prior to her marriage with Agripino, by saying, inter alia
that: 7
... If the sale by Juan Dantes and his wife to Isidra is true and was really not reduced to
writing for the reasons given by Simplicio, why is it that Juan Dantes, in executing the
deed of sale in favor of Simplicio stated in the deed of sale that he sold the entire lot of
over three hectares to Simplicio instead of stating that he previously sold a portion
thereof to Isidra and the remainder to Simplicio? Had this been stated in the deed of
sale to Simplicio, there would have been no need for Simplicio to execute Exhibit F in
favor of Isidra de la Cruz.
Moreover, if the property was really sold by Juan Dantes to Isidra in 1920 or 1921. as
claimed by the defendants, why is it that in Exhibit F, Simplicio did not state so?
Simplicio stated in said document (Exhibit F) that he was the one selling the lot to Isidra.
Had he stated that he was merely transfering to Isidra the smaller lot which was not
actually purchased by him from Juan Dantes, there would have been no necessity of

making it appear in Exhibit F that the money used by Isidra was her own paraphernalia
property.
Apparently, the question is factual for it involves an examination of the probative value of the
evidence Presented by the litigants or any of them, 8 in order to determine the true nature of the
property in question. While as a rule, the findings of fact of the Court of Appeals are final and
conclusive and cannot be reviewed on appeal to this Court, one of the recognized exceptions to said
rule is when the conclusion made is manifestly mistaken. 9 We are of the opinion that the ruling of the
Court of Appeals is not persuasive, and We are accordingly constrained to hold that it is in error in
concluding that the property in question is conjugal.
The testimony of Marcelo Bernal, which "was wholly corroborated by Simplicio Dantes and Valentina
San Andres" as correctly observed by the lower court, 10 anent the sale of the questioned property to
Isidra in 1920 or 1921 when the latter was then single, it having been admitted that Agripino married
Isidra only in February 1927, appears to be unrebutted by the private respondents. They place
reliance mainly on the deed of sale 11 executed by Simplicio Dantes and his wife in favor of Isidra de
la Cruz, when the latter was already married and where in said deed, no mention was made about the
sale by the original owners to Isidra. They lose sight of the fact, however, that this deed of sale was
executed only for the purpose of recognizing or confirming the verbal sale made by the original
owners to Isidra in 1920 or 1921, long before her marriage to Agripino in February 1927. This is the
very reason why Agripino had to sign in said deed of sale, declaring that "the money with which Lot
No. 1189-C was purchased from the spouses Simplicio Dantes and Emilia Rivera is her own money,
and does not belong to our conjugal property, and therefore, the said Lot No. 1189-C, is her, Isidra's
paraphernal property" (sic). 12 The declaration aforequoted is of the highest evidentiary value being
one against the declarant's own interest. It may well be presumed that Agripino would not have made
the said declaration unless he believed the same to be true, prejudicial as it is to his children's
interests as his heirs, with his first wife. Good faith is always to be presumed, and a person always
takes ordinary care of his concerns. 13 Against these presumptions, the contrary must be clearly
established and proven by sufficient evidence, which is clearly wanting in the instant case. No
explanation was given why the aforesaid declaration should not be given due weight. It is significant
to note that the same was made on 28 February 1941 or more than six (6) years prior to Agripino's
death on 23 December 1947 without his having repudiated the same. Neither did the private
respondents, as heirs, question said declaration. Agripino was, therefore, clearly in estoppel to deny
his declaration. As such, he can lay no claim nor interest in the questioned property, nor can the
private respondents do so, for the person from whom they claim to have succeeded to the property
had no title thereto. Estoppel is effective even on successors in interest. 14
Moreover, when the question is exclusively between husband and wife, or between one of them and
the heirs of the other, the admission or acknowledgment of one spouse that the money used to
purchase the property came from the other spouse, is evidence against the party making the
admission or his heirs. 15 Likewise, where the husband has been a party to an act of purchase of
immovable property in the name of his wife, which recited that the purchase was made with
paraphernal funds, and that the property was to be and remain paraphernal property, neither he nor
his heirs can be permitted to go behind the deed and contest the wife's title to the property by
claiming that it is conjugal. 16Since the property is the paraphernal property of Isidra, the same having

been acquired by her prior to her marriage with Agripino 17 and having been purchased with her
exclusive or private funds 18 any declaration to the contrary made by her, as well as that of her child,
cannot prevail nor change the character of the property in question. The extra-judicial partition was
evidently an expedient only to facilitate the sale without giving rise to any question as to the legality of
the transmission of the property to Isidra and his daughter, as the death of Agripino Alvarez may
occasion, for the better protection of the vendee, the petitioner herein. If the property were conjugal
the private respondents would have been made parties to the extra-judicial partition and made
signatories thereto. As the Court of First Instance aptly observed.
The Court believed that the Deed of Extra-Judicial Partition submitted in the case at bar
cannot affect or change the paraphernal character of the property in question. ... Since
the deceased Agripino Alvarez has formally and categorically declared that he has no
right or interest whatsoever in the property in question, the same being paraphernal it
follows that his heirs, the plaintiffs herein, have not inherited any portion or right in the
property, as the heirs merely step into the shoes of the decedent.
Moreover, the law does not provide that separate property becomes conjugal simply by
reason of an extra-judicial partition after the death of one spouse, or by erroneous
conclusions or declarations made later. The Court has noticed that defendant Isidra de
la Cruz affixed only her thumb-mark on the deed of extra-judicial partition it is therefore
obvious that she is illiterate and does not know the technical intricacies of the law of
property. Reason and justice demand that acts done beyond the manifest
understanding of illiterates must not be used to deprive them of their acquired rights or
their property, or as a weapon to work injustice upon them Hence, the Court is of the
opinion that in the instant case the money used in the purchase chase of the property
subject of litigation is the exclusive money of defendant Isidra de la Cruz.
From what has been said on the foregoing, We find the first two assigned errors t  be well taken.
Since the property involved in this case is the paraphernal property of Isidra, it follows that the Court
of Appeals erred in ordering the cancellation of transfer Certificate of Title No. 32529 of the Registry
of Deeds of Quezon City which is in the name of herein petitioner. The sale between Isidra and herein
petitioner is a perfectly valid sale, although in the document drawn 19 the property was erroneously
treated as conjugal. No valid reason is shown to invalidate the same, especially so where the
persons, herein private respondents, claiming to be entitled to a portion thereof have been shown to
have neither interest nor title thereto.
And finally, the third assigned error is likewise meritorious. As stated beforehand, the Court of Appeal
found that the property in litigation is the conjugal property of the spouses Agripino Alvarez and Isidra
de la Cruz. Granting that finding to be true, said Court should have first liquidated the conjugal
partnership of the spouses and adjudicate one half of the property in favor of the surviving spouse
Isidra, in full ownership; 20 and the other half, to the deceased husband's heirs, wherein Isidra shall
likewise be entitled to a portion thereof in usufruct equal to that corresponding by way of legitime to
each of the legitimate children or descendants who has not received any betterment 21to be taken
from the third at the free disposal of the deceased parent. 22 This, said Court did not do. Instead, in
designating the fractional shares of Agripino's heirs, it had treated the property as his capital alone.
The dispositive portion, therefore, is in conflict with the basic finding of said Court, which actuation

was branded by the petitioner as a showing of "seeming partiality. 23 Hence, the questioned decision
is a nullity, giving justification for its reversal and for Us to revert to that of the lower court.
UPON THE FOREGOING CONSIDERATIONS, the decision appealed from should be, as it is hereby,
REVERSED and the complaint filed by the private respondents' DISMISSED. No pronouncements as
to costs.
2.)SECURITY BANK AND TRUST COMPANY VS ERIC GAN
CORONA, J.:
This petition for review on certiorari[1] seeks the reversal of the decision[2] of the Court of
Appeals (CA) dated October 18, 2001 in CA-G.R. CV No. 45701, the dispositive portion of which
read:
WHEREFORE, finding no reversible error therefrom, the Decision now on appeal is hereby
AFFIRMED in toto
SO ORDERED.[3]
The factual antecedents follow.
Petitioner Security Bank and Trust Company is a banking institution duly organized and existing
under the laws of the Philippines. In 1981, respondent Eric Gan opened a current account with
petitioner at its Soler Branch in Santa Cruz, Manila. Petitioner alleged that it had an agreement with
respondent wherein the latter would deposit an initial amount in his current account and he could
draw checks on said account provided there were sufficient funds to cover them. Furthermore, under
a special arrangement with petitioners branch manager then, Mr. Qui,[4] respondent was allowed to
transfer funds from his account to another persons account also within the same branch.[5]
Respondent availed of such arrangement several times by depositing checks in his account and even
before they cleared, he withdrew the proceeds thereof and transferred them to the other account.
These transactions were covered by what were known as debit memos since respondent had no
sufficient funds to cover the amounts he transferred.[6]
Later on, respondent purportedly incurred an overdraft or negative balance in his account. As of
December 14, 1982, the overdraft balance came up to P153,757.78. According to petitioner,
respondent refused to heed petitioners repeated demands for payment. For the period December 14,
1982 to September 15, 1990, the total obligation of respondent reached P297,060.01, inclusive of
interest.[7]
Thus, in 1991, petitioner filed a complaint for sum of money against respondent to recover the
P297,060.01 with 12% interest per annum from September 16, 1990 until fully paid, attorneys fees,
litigation expenses and costs of suit. The case was docketed as Civil Case No. 91-55605 with the
Regional Trial Court of Manila, Branch 13.[8]
Respondent denied liability to petitioner for the said amount. He contended that the alleged overdraft
resulted from transactions done without his knowledge and consent.

In a decision dated March 31, 1993, the trial court dismissed the complaint. It held that petitioner was
not able to prove that respondent owed it the amount claimed considering that the ledger cards it
presented were merely hearsay evidence. On petitioners appeal, the CA affirmed the trial courts
decision.

Hence, this petition anchored on the following grounds:

I.
The honorable Court of Appeals erred in not ruling that petitioner has sufficiently proved its
cause of action against respondent; and that the ledger cards and the testimony of Mr. Patricio
Mercado constituted the best evidence of the transactions made by the respondent relative to his
account.
II.
The honorable Court of Appeals erred in not applying the principle of estoppel against
respondent who has benefited from the special arrangement accorded to him by petitioner which
resulted in an overdraft / negative balance.
III.

The honorable Court of Appeals erred in affirming the decision of the trial court.[9]

We deny the petition for lack of merit.

It is well established that under Rule 45 of the Rules of Court, only questions of law, not of fact, may
be raised before the Supreme Court. It must be stressed that this Court is not a trier of facts and it is
not its function to re-examine and weigh anew the respective evidence of the parties. Factual findings
of the trial court, especially those affirmed by the CA, are conclusive on this Court when supported by
the evidence on record.[10]
Here, both the trial court and the CA found that petitioner failed to substantiate its claim that
respondent knowingly incurred an overdraft against his account. We see no reason to disturb this
finding.
To prove its claim, petitioner presented Patricio Mercado who was the bookkeeper who handled the
account of respondent and recorded his transactions in a ledger. Based on this ledger, respondent
allegedly had a negative balance of P153,757.78. This resulted from transfers of funds from
respondents current account to another persons account. These transfers were made under the
authority of Qui.[11] Respondent categorically denied that he ever authorized these funds
transfers.[12]
The entries in the ledger, as testified to by Mercado, were not competent evidence to prove that
respondent consented to the transfers of funds. These entries merely showed that the transfers were
indeed made and that Qui approved them. Petitioners claim that respondent availed of a special
arrangement to transfer funds from his account to another persons account was a bare allegation
that was never substantiated. Admittedly, Mercado had no personal knowledge of this arrangement.
[13] In fact, when asked about the details of the alleged consent given by respondent to the
transfers, he stated that he could not remember because respondent talked to Qui and not to him.[14]
Petitioner could have presented Qui whom they alleged allowed the special arrangement with
respondent. But it did not.

Neither can we accept petitioners argument that the entries made by Mercado in the ledger were
competent evidence to prove how and when the negative balance was incurred. Petitioner invokes
Section 43 of Rule 130:
Entries in the course of business. Entries made at, or near the time of the transactions to which they
refer, by a person deceased, or unable to testify, who was in a position to know the facts therein
stated, may be received as prima facie evidence, if such person made the entries in his professional
capacity or in the performance of duty and in the ordinary or regular course of business or duty.
Under this exception to the hearsay rule, the admission in evidence of entries in corporate books
required the satisfaction of the following conditions:
1.

the person who made the entry must be dead, or unable to testify;

2.

the entries were made at or near the time of the transactions to which they refer;

3.

the entrant was in a position to know the facts stated in the entries;

4. the entries were made in his professional capacity or in the performance of a duty, whether legal,
contractual, moral or religious; and
5.

the entries were made in the ordinary or regular

course of business or duty.[15]

The ledger entries did not meet the first and third requisites
Mercado, petitioners bookkeeper who prepared the entries, was presented to testify on the
transactions pertaining to the account of respondent. It was in the course of his testimony that the
ledger entries were presented. There was, therefore, neither justification nor necessity for the
presentation of the entries as the person who made them was available to testify in court.[16]
Moreover, Mercado had no personal knowledge of the facts constituting the entries, particularly those
entries which resulted in the negative balance. He had no knowledge of the truth or falsity of these
entries. We agree entirely with the following discussion of the trial court which was affirmed by the
CA:
The plaintiff submits that the ledger cards constituted the best evidence of the transactions made by
the defendant with the bank relative to his account, pursuant to Section 43 of Rule 130 of the Revised
Rules on Evidence. There is no question that the entries in the ledgers were made by one whose
duty it was to record transactions in the ordinary or regular course of the business. But for the entries
to be prima facie evidence of the facts recorded, the Rule interpose[s] a very important condition, one
which we think is truly indispensable to the probative worth of the entries as an exception to the
hearsay rule, and that is that the entrant must be in a position to know the facts therein stated.
Undeniably, Mr. Mercado was in a position to know the facts of the check deposits and withdrawals.
But the transfers of funds through the debit memos in question?
Let us be clear, at the outset, what the transactions covered by the debit memos are. They are, at
bottom, credit accommodations said to have been granted by the banks branch manager Mr. [Q]ui to
the defendant, and they are, therefore loans, to prove which competent testimonial or documentary
evidence must be presented. In the fac[e] of the denial by the defendant of the existence of any such

agreement, and the absence of any document reflecting it, the testimony of a party to the transaction,
i.e., Mr. [Q]ui, or of any witness to the same, would be necessary. The plaintiff failed to explain why it
did not or could not present any party or witness to the transactions, but even if it had a reason why it
could not, it is clear that the existence of the agreements cannot be established through the testimony
of Mr. Mercado, for he was [not in] a position to [know] those facts. As a subordinate, he could not
have done more than record what was reported to him by his superior the branch manager, and
unless he was allowed to be privy to the latters dealings with the defendant, the information that he
received and entered in the ledgers was incapable of being confirmed by him.
There is good reason why evidence of this nature is incorrigibly hearsay. Entries in business records
which spring from the duty of other employees to communicate facts occurring in the ordinary course
of business are prima facie admissible, the duty to communicate being itself a badge of
trustworthiness of the entries, but not when they purport to record what were independent
agreements arrived at by some bank officials and a client. In this case, the entries become mere
casual or voluntary reports of the official concerned. To permit the ledgers, prepared by the bank at
its own instance, to substitute the contract as proof of the agreements with third parties, is to set a
dangerous precedent. Business entries are allowed as an exception to the hearsay rule only under
certain conditions specified in Section 43, which must be scrupulously observed to prevent them from
being used as a source of undue advantage for the party preparing them.[17] (citations omitted)
Thus, petitioner did not prove that respondent had incurred a negative balance in his account.
Consequently, there was nothing to show that respondent was indebted to it in the amount claimed.
Petitioners next argument is that respondent was estopped from denying the claim of petitioner
since he benefited from the special arrangement accorded to him resulting in the negative balance.
This must likewise fail. The so-called special arrangement was never established. In addition, there
was no evidence that respondent benefited from it. As held by the CA:
The trial court satisfactorily explained the reason for not applying the principle of estoppel against
defendant-appellee. As held by the trial court:
There is no scope here for the application of estoppel against the defendant-appellee, since it was
not established that he had ever received copies of the ledgers, and therefore given the opportunity to
review the correctness of the entries. As we see it, the case of the [plaintiff suffers from its failure to
document its] transactions with its clients, and it is hardly right to close our eyes to that infirmity at the
expense of the defendant-appellee.
The temporary overdraft allegedly accorded by plaintiff-appellant to defendant-appellee has
not benefited the defendant-appellee in any manner. The 3 debit memos amounting to P150,000.00
appearing on defendant-appellees ledger consisted of fund transfers from and not to defendantappellees account. The transfers resulted [in] the benefit of other accounts, not that of defendantappellee.[18]
In view of the foregoing, the CA did not err in affirming the decision of the trial court.
WHEREFORE, the petition is hereby DENIED. The assailed decision of the Court of Appeals dated
October 18, 2001 in CA-G.R. CV No. 45701 is AFFIRMED in toto.

Costs against petitioner.

G.R. No. 72588 October 15, 1986
JORGE
W.
JOSE, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION, AGUINALDO DEVELOPMENT CORPORATION
and JOSE G. RICAFORT, respondents.
MELENCIO-HERRERA, J.:
Premised on lack of employer-employee relationship, the National Labor Relations Commission
(NLRC), public respondent herein, denied petitioner's claims for separation pay, unpaid salaries up to
December 31, 1977, accumulated sick and vacation leaves, and retirement benefits.
Petitioner Jorge W. Jose started working for Daniel R. Aguinaldo Corporation (DRACOR) on October
1, 1956 as comptroller and later as internal auditor.
Sometime in July of 1975, DRACOR, through its Chairman of the Board, Daniel R. Aguinaldo,
Transferred many of its executives and officers to Aguinaldo Development Corporation (ADECOR),
with the latter assuming the obligations of the former with respect to tenure of service and other
benefits earned while in the employ of DRACOR.
Petitioner's claim that he was one of those transferred to ADECOR is supported by a Memo (Annex
"G") reproduced below:
MEMO
TO: MR. JORGE W. JOSE
Internal Auditor[Division Manager
Systems Organization Division
SUBJECT: Company Transfer
In view of the fact that your employment by DRACOR was for the purpose of providing
services to and for "ADECOR, you are hereby advised that in view of the termination of
the Management Contract between DRACOR and ADECOR, your services shall
henceforth be rendered directly to ADECOR. Accordingly, effective as of July 1, 1975,
your employer will be ADECOR.
In accordance with the policy on the transfer of seniority or tenure of service for intercompany transfers in the Aguinaldo Enterprises and as agreed to between the two
corporations, your seniority status and your original length of service win be assumed
by ADECOR in your new position.
We trust that you will continue rendering your best to ADECOR who is now your new
employer.
AGUINALDO
CORPORATION

DEVELOPMENT

(Sgd.)
D.R. AGUINALDO
President
In July of 1976, a new group headed by Jose G. Ricafort, herein private respondent, took over the
management and properties of ADECOR.
On December 31, 1977, after having rendered 21 years of starting at DRACOR, petitioner was
officially retired from ADECOR as evidenced by the following Memo (Annex " H "), to wit:
Janua
ry 31,
1978
MEMO:
TO: Mr. J.G. RICAFORT, President
ADECOR
SUBJECT: Mr. JORGE W. JOSE
Official Retirement - December 31, 1977
Since the position of the subject executive, as Executive Assistant, Office of the
Chairman of the Board of Directors, has become unnecessary, I have, therefore,
considered him officially retired as of December 31, 1977, hence this recommended
abolition of his position and automatic retirement from ADECOR which both of us
committed to him since 1976.
In accordance with our commitments to him which to date remain unimplemented, he
should therefore be paid his retirement gratuity as per my memo to him dated January
27, 1978, duplicate copy attached hereto, including all that is due him up to December
31, 1977, in unpaid salaries, accumulated and accrued vacation and sick leaves.
He agreed to waive our commitment to automatically name him as one of the high level
executives of the Davao Management Corporation upon his retirement from ADECOR.
This supersedes my letter to you dated March 3, 1977.
(Sgd.)
D. R. AGUINALDO
Chair
man
Due to ADECOR's refusal to pay petitioner's retirement pay and other benefits despite repeated
demands, the latter filed a complaint with the Ministry of Labor and Employment on March 2, 1979,

against ADECOR and its President Jose G. Ricafort, docketed as R4-STF-3-1487-79, praying for
payment of his retirement benefits as well as damages. Private respondents moved to dismiss on the
primary ground that petitioner was not an employee of ADECOR but retained by Daniel R. Aguinaldo
at DRACOR to service other corporations owned by him.
On September 10, 1979, Labor Arbiter Teodorico Dogelio rendered a Decision reading, in part, as
follows:
xxx xxx xxx
Definitely, respondents are aware of the existence of the aforesaid Memo of the
Chairman of the Board wherein there were affirmed complainant's entitlement to
retirement gratuity or separation pay, unpaid salaries up to December 31, 1977, as well
as payment of accumulated sick and vacation leaves. But the contents of said Memo,
coming from the Chairman of the Board himself, were never denied or disputed.
In addition to the aforementioned Memo, copy of which was attached to the complaint,
the following annexes were attached to complainant's position paper:
Annex "A" Memo to Complainant issued by ADECOR President,
authorizing transfer from DRACOR to ADECOR, his original length of
service to be assumed by the latter Corporation;
Annex "B" Complainant's letter of acceptance of his transfer from
DRACOR to ADECOR, dated June 30, 1975;
Annex "C' - Certificate of Premium Payments, made in behalf of Mr. Jorge
W. Jose, by ADECOR;
Annex "D" Letter dated October 25, 1975 of complainant to J. G.
Ricafort, President, re: computation of Retirement Benefits;
Annex "E" Letter of D.R. Aguinaldo to ADECOR's President, re:
Payment of complainant's Gratuity;
Annex "F" Letter dated January 27, 1978 of D.R. Aguinaldo to
complainant, re: Retirement of J.W. Jose, including payment of all benefits
and unpaid salaries; and
Annex "G" Memo to ADECOR President confirming payment of
complainant's benefits.
All the foregoing documents clearly speak of complainant's 'automatic retirement' from
ADECOR and his being entitled to gratuity or severance pay, unpaid salaries and
payment of accumulated sick and vacation leave credits. Said documents entertain no
other interpretation the words are clear and simple. A number of them depict the true
intent of the Board Chairman, and reiterates a commitment he had with the President,
respondent Jose G. Ricafort, concerning complainant's retirement from the service of
ADECOR.

Respondent J. G. Ricafort could have easily executed a sworn statement denying his
alleged agreement with the Board Chairman or of the existence of the abovementioned
documents, in support of respondent's general allegations of lack of employer-employee
relationship, but no such denial or controversion was submitted. Moreover, the
allegation of R. M. Carlos that no Memo was issued to the effect that complainant was
being transferred from DRACOR to ADECOR, unlike the others, is belied by Annex 'A'
of complainant's positoin paper which is a Memo directly addressed to Jorge W. Jose
concerning the transfer. And, as argued by the complainant, there is no need to include
D. R. Aguinaldo as a party respondent in this case.
In view of all the foregoing, respondent's allegation of lack of employer-employee
relationship between them and herein complainant, is deemed unmeritorious and their
failure to dispute the legitimacy or legality of the herein claims, make respondents thus
liable.
WHEREFORE, responsive to the foregoing, respondent Aguinaldo Development
Corporation (ADECOR) is hereby ordered to pay herein complainant, Jorge W. Jose, as
follows:

a.
Separation/retirement
pay

P214,500.00

b.
Unpaid
salaries/wages from

December,
December

1976

to

31, 1977

P84,500.00

c. Accurred vacation
leave of 40 days

at the same daily rate

d. Accured sick leave

of 40 days

P23,683.56

e. Atoreney's
(10% of all

unpaid wages)

TOTAL

fees

P8,450.00

P341,430.76

The claim for damages, both moral and exemplary, are hereby dismissed, pursuant to
P.D. No'. 1367.
SO ORDERED.
Respondents appealed to the NLRC which, on May 21, 1982, disposed of the case as follows:
xxx xxx xxx
We noted that the respondents question on appeal the genuineness and validity of
several documents submitted by the complainant. An intelligent resolution of this case
would not be possible without giving the respondents an opportunity to cross-examine
the witnesses adduced by the complainant. For this reason and likewise to cure
objections to the alleged irregular procedure in the submission of complainant's position
paper, we are inclined to give the parties another opportunity to cross-examine the
witnesses and/or adduce further evidence, if necessary.
WHEREFORE, the appealed decision is hereby set aside and the record of this case is
remanded to the Labor Arbiter of origin for further appropriate proceedings.
Thereupon, Labor Arbiter Dogelio set the case for conference/hearing. However, upon ADECOR's
motion for his inhibition, the case was reassigned to Labor Arbiter Lomabao. Similarly, the latter
inhibited himself upon private respondents' Motion who imputed to him "personal prejudice and bias".
The case was this time reassigned to Labor Arbiter Domingo, who likewise inhibited herself from
hearing the case. Finally, the case was reassigned a fourth time to Arbiter, Pelagio Carpio, who on
October 17, 1984, rendered a Decision reading, in part, as follows:
xxx xxx xxx
It is argued that complainant had never been an ADECOR employee for the reason that
unlike Carlos, Pamintuan, Jr., Lasquety and Trinidad, all of whom were issued interoffice memos advising them of their transfer from Dracor to Adecor, Jose was never
issued such memo and, therefore, never became an Adecor employee. It is pointed out
that Jose was not among those transferred because someone had to look after and

service the other corporations owned by Daniel R. Aguinaldo. Respondents maintain

that documentary evidence exists which show that subsequent to complainant's alleged
transfer, he continued to be employed by Dracor and in such capacity represented the
interest of Daniel R. Aguinaldo. Thus, in a memo dated August 11, 1976 (after the
purported transfer of complainant) addressed to Ricafort and other officers of Adecor
(Annex '2'), Daniel Aguinaldo designated and authorized Jose in his absence to attend
to all matters pertaining to the other corporations owned by the former. In another memo
of even date (Annex '3') Jose was designated and authorized to attend for and in behalf
of Aguinaldo 'to all matters pertaining to or relating to (his) accounts receivable from
Adecor'. Complainant was again designated in a letter dated August 26, 1976 (Annex
'4') to represent and act for and in behalf of Daniel Aguinaldo in the board of directors of
respondent firm These designations are incongruous to the position that Jose had
become by virtue of a prior transfer, an employee of Adecor. For if complainant was
really transferred from the employ of Dracor to Adecor, he would not have represented a
particular interest in Adecor. The said correspondence shows that even more than a
year after his alleged transfer, complainant was still discharging functions pertaining to
his employment with Dracor which was the umbrella corporation formerly providing
management services to all corporations comprising the Aguinaldo Enterprises and
which represented the interests of Daniel Aguinaldo.
Complainant's statement in paragraph 3 of his complaint that in December 1977 and
several years prior thereto, he was the Internal Auditor/Division Manager and Executive
Assistant to the Chairman of the Board of Adecor runs counter to the allegation of
respondents that complainant was originally employed by Dracor on October 1, 1956.
The latter averment is evidenced by Annex '1'. Respondents admit that Dracor
transferred many of its high ranking officers to the employ of Adecor in July 1975 but
deny that complainant was one of those transferred. If complainant was not one of
those transferred, then there would be no employer-employees relationship between
respondent Adecor and complainant Jose. But this assumption is overturned by what is
contained in the letter dated January 11, 1978 of the Chairman to the President of
respondent Adecor (Annex 'A'). Even granting that complainant has been an employee
of respondent firm, still he is not entitled to separation pay because he agreed to waive
the commitment of Aguinaldo and Ricafort that he be paid his retirement gratuity
including all that is due to him up to December 31, 1977 (Annex 'A').
The waiver as indicated above includes unpaid salaries, accumulated and accrued
vacation and sick leaves. There is, therefore, no cause of action of complainant
because he is already estopped from claiming what is maybe due to him because of his
waiver. The irony of this case is that the evidence of the complainant turned out to be
the best evidence of the respondent.
IN THE LIGHT OF THE FOREGOING CONSIDERATIONS, the instant complainant of
Jorge W. Jose against the Aguinaldo Development Corporation and Jose G. Ricafort
should be, as it is hereby, DISMISSED for lack of merit.
This time, it was petitioner's turn to appeal to the NLRC which, on June 20, 1985, dismissed the
appeal stating:
xxx xxx xxx
Annex 'A' of the complainant's position paper shows that Jorge W. Jose was transferred
to Aguinaldo Development Corporation effective July 1, 1975 signed by the President,

D.R. Aguinaldo. This was a year before the takeover of the new management group
headed by respondent Jose G. Ricafort. Respondents contend that since the author of
the memorandum was not presented and efforts to implead were vehemently opposed
by the complainant, said document is questionable, branded by the respondents as
fabricated evidence and as a scheme to pass liability for complainant's benefits to the
new management group. Considering that complainant has spent more time with
DRACOR than the Aguinaldo Development Corporation, complainant's refusal to
implead DRACOR, his former employer, is certainly suspicious and lends credence to
the theory of the respondents as mentioned earlier above.
In an affidavit executed on April 19, 1979, Rogelio M. Carlos, Assistant Legal Counsel of
ADECOR, positively asserted that the complainant was never an ADECOR employee.
He admitted that he is one of those primarily responsible for the preparation of
documents on the transfer of employees from DRACOR to Aguinaldo Development
Corporation. Unlike Messrs. D. D. Pamintuan, Jr. , A. Z. Lasquety and A. C. Trinidad,
and R. M. Carlos, the latter asserted that they were issued inter-office memos, advising
them of their transfer from DRACOR to Aguinaldo Development Corporation, but not the
complainant Jorge W. Jose. Respondents alleged that the reason was that someone
had to look after and service other corporations owned by Daniel R. Aguinaldo,
namely ...
xxx xxx xxx
A certification of SSS premiums payments allegedly made in behalf of complainant
Jorge W. Jose, which covers the period from July 1975 to November 1976, was
presented by the complainant. Aside from the fact that the original copy of the
remittance was not presented below, it was shown by respondents that complainant as
internal auditor of DRACOR, which was the managing company of the Aguinaldo
Enterprises, had a direct and active participation in the preparation of the payroll and
SSS reports and remittances as he is one of the authorized signatories in the execution
of SSS forms and documents required of the company in compliance with the social
security law. In addition, coverage under the Social Security Law, is not the principal
factor determinative of employer-employee relationship.
In his complaint, Jorge W. Jose, alleged that 'in December 1977 and several years prior
thereto,' he was the Internal Auditor/Division Manager and Executive Assistant to the
Chairman of the Board of ADECOR and as such he received a monthly salary of
P6,500.00 (paragraph 3 of complaint). However, the employment card of the
complainant with D. R. Aguinaldo Corporation (DRACOR) shows he was appointed on
October 1, 1956 as Comptroller and the same record does not indicate that he was
transferred to Aguinaldo Development Corporation as he claimed (Annex 'l', position
paper of respondents). Incidentally, complainant's case for unpaid salaries from
December 1976 to December 31, 1977, the reason for such nonpayment was not
explained by him coincided with his alleged appointment in December 1977. Moreover,
this can not be true because in his own complainant he alleges that he was
terminated/retired from the service effective December 31, 1977. (paragraph 5 of the
Complaint)
For the above added reasons, we see no cogent reason to disturb the appealed
decision.
WHEREFORE, let the instant appeal be, as it is hereby, DISMISSED for lack of merit.

A Motion for Reconsideration, filed by petitioner, was denied for lack of merit in a minute resolution of
the NLRC on August 30, 1985.
Hence, the instant Petition on the following grounds:
I
Respondent NLRC capriciously, whimsically, unjustifiably and with grave abuse of
discretion amounting to lack of jurisdiction, denied the petitioner's Motion for
Reconsideration for alleged lack of merit;
II
Respndent National Labor Relations Commission committed serious errors of law in its
questioned decision of June 20, 1985, to wit:
a) for its arbitrary and gross disregard of very material and/or vital facts clearly
established by the evidence on record showing without any doubt at all the existence of
employer-employee relationship between Jorge Jose and respondent ADECOR;
b) its gross misappreciation of the evidence adduced by the petitioner made the
commission rule wrongly that such employer-employee relationship did not in fact exist;
and
c) the questioned decision of June 20, 1985 is not properly substantiated by the
evidence on record and is therefore contrary to law.
III
In so doing, the Honorable Commission violated petitioner's right to due process.
The basic issue for resolution is whether or not petitioner was an employee of ADECOR.
The Solicitor General took the affirmative view as against the negative position consistently
maintained by the NLRC even before this Court.
To prove his cause, petitioner submitted among others, the following documents attached as Annexes
to his Position Paper
1. Memo to petitioner dated July 1, 1975 issued by ADECOR President D. R. Aguinaldo,
authorizing transfer from DRACOR to ADECOR, his original length of service to be
assumed by the latter corporation (Annex "A").
2. Certificate of SSS premiums payments made in behalf of petitioner by ADECOR
(Annex "C").
3. Letter of D. R. Aguinaldo to ADECOR President, Jose G. Ricafort dated March 3,
1977 urging implementation of petitioner's retirement gratuity on the basis of 6 weeks'
salary for every year of service, including his unused vacation and sick leaves. In this
letter D. R. Aguinaldo acknowledged petitioner's services directly and thru DRACOR
( Annex "E").

4. Letter dated January 27, 1978 of D. R. Aguinaldo addressed to petitioner, Executive

Assistant, Office of the Chairman, ADECOR, terminating his services as Executive
Assistant to the Chairman of the Board of Directors of ADECOR and considering him
officially retired as of December 31, 1977, giving the assurance that all amounts due
him would be paid by ADECOR (Annex "F").
5. Memo dated January 31, 1978 of Chairman D.R. Aguinaldo to J. G. Ricafort,
ADECOR President, reminding the latter of their commitment to petitioner to pay him
retirement gratuity (Annex "6").
6. BIR Withholding tax statements for the years 1975 and 1976 showing income taxes
were withheld from petitioner's by his employer-Aguinaldo Development Corporation
(ADECOR) (Annex "A" and "B", Reply to respondent's Position Paper dated June
17,1984).
7. Check stubs showing check payments made by respondent ADECOR of petitioner's
salaries, transportation and representation expenses (Annex "C", "D", "E ", "F", Id.).
8. Check stub for check payment made by ADECOR to petitioner for his unused sick
leave for the year 1975 and prior years.
As against the foregoing official corporate papers, which were executed ante litem motam and which
prove an employer-employee relationship, private respondents presented the lone and self-serving
affidavit of Rogelio M. Carlos, Assistant Legal Counsel for ADECOR, to the effect that petitioner was
never an ADECOR employee. The other arguments of respondents entirely miss the point, for, as
correctly argued by the Solicitor General:
On the other hand, no inference of lack of employer-employee relationship is logically or
legally permissible from the facts of: (1) petitioner's refusal to implead DRACOR, his
former employee; (2) petitioner's employment card with DRACOR contains no indication
that he was transferred to ADECOR; (3) petitioner's designation by D. R. Aguinaldo in
memos and letter to attend to all matters pertaining to the sister corporations of
ADECOR, and to represent said owner in various capacities during his absence while
he was abroad. The fact that sometime in 1976 petitioner was given special
assignments by D. R. Aguinaldo, Chairman of the Board of Directors of ADECOR,
cannot, in the absence of evidence, be construed as 'incongruous' to his positions as
Internal Auditor/Division Manager and Executive Assistant to the Chairman of the Board
of ADECOR, as found by public respondent. D. R. Aguinaldo, as owner of ADECOR and
its sister corporations, besides being the Chairman of the Board of Directors of
ADECOR, had ample power to appoint anyone of his employees to temporarily perform
additional duties outside of his regular functions at ADECOR, without the consent of
anybody, as what he did with petitioner who apparently deserved his trust and
confidence as to be chosen to represent D. R. Aguinaldo in the Board of Directors and
to take care of the latter's finances from the ADECOR. Moreover, the fact that petitioner
was designated to attend to all matters pertaining to the different corporations owned by
D. R. Aguinaldo to the exclusion ofADECOR conclusively proves that petitioner was
then an employee of the latter corporation.
In refuting petitioner's claim of the existence of employer-employee relationship with
respondent corporation, private respondents did no more than state petitioner's
evidence to this effect - memo dated July 1, 1976 issued by ADECOR president, D. R.
Aguinaldo, authorizing petitioner's transfer from DRACOR to ADECOR (Annex A,

Complainant's Position Paper) - as fabricated. However, they failed to adduce evidence

of the falsified nature of the document. Consequently, said memo furnishes satisfactory
proof of petitioner's valid transfer of ADECOR and private respondents are under
estoppel to deny such fact which would prejudice petitioner.
Clearly, the NLRC gravely abused its discretion in closing its eyes to the strong document proof
presented by petitioner in setting aside the Decision of Labor Arbiter Dogelio in petitioner's favor, and
in remanding the case back to the Labor Arbiter for further reception of evidence. The finding of Labor
Arbiter Carpio that petitioner had waived his benefits was sheer misinformation. What petitioner
waived was ADECOR's commitment to automatically name him as an executive of the Davao
Management Corporation upon his retirement from ADECOR.
We adopt with approval the following conclusion of the Solicitor General that petitioner was a "victim
of injustice".
A perusal of the record will easily convince one and sundry that the petitioner has been
a victim of injustice. He has already won a judgment against his employer, herein
respondent corporation (Annex F, Petition), but lost it due to the unfair tactics of private
respondents. There, Labor Arbiter Teodorico Dogelio upheld the petitioner's claims and
found unmeritorious the private respondents' defense of lack of employer-employee
relationship between petitioner and the latter, and consequently, ordered payment to
petitioner his separation/retirement pay, unpaid salaries, accrued vacation and sick
leaves, and attorney's fees.
xxx xxx xxx
On May 21, 1982, the respondent NLRC issued a resolution setting aside the appealed
decision and ordering the case remanded to the labor arbiter of origin (Teodorico
Dogelio) to give private respondents opportunity to cross-examine the petitioner or
produce further evidence. The parties were duly notified of the conference on July 27,
1982 before Labor Arbiter Dogelio. But upon oral manifestation of private respondents
to inhibit Arbiter Dogelio from hearing the case, the same was reassigned to Labor
Arbiter Apolinario Lomabao, Jr. Similarly, Lomabao inhibited himself upon motion of
private respondents imputing 'personal prejudice and bias' against the former who
strongly denied the same. The case was again reassigned to Arbiter Teresita R.
Domingo who in time, also inhibited herself from hearing the case. The repeated
motions of private respondents to inhibit the different labor arbiters to whom the case
was assigned and reassigned is certainly irregular and highly suspicious and leads to
the conclusion that they were shopping for suitable arbiter, and in the process,
succeeded in delaying the wheels of justice to the prejudice of petitioner. This is obvious
from the fact that instead of cross-examining petitioner and adducing additional proofs
as they had previously committed themselves to do, they had simply indulged in
seeking the inhibition of one labor arbiter after another, and one postponement after
another. When they finally presented their additional evidence incorporated in their
position paper (filed June 22, 1983), it was over a year from the time they were first
notified of the rehearing of the case before labor arbiter of origin Teodorico Dogelio.
Finally, on October 17, 1984, Labor Arbiter Pelagio A. Carpio, the 4th arbiter reassigned
to the case (three others before him having inhibited themselves at private respondents'
behest), rendered judgment (.Annex C, Petition) dismissing petitioner's complaint
against the respondent corporation for lack of merit, a sheer reversal of the decision of
Arbiter Dogelio (Annex A, Id)

xxx xxx xxx

CONCLUSION
In refusing to give weight to petitioner's claim that he is an ADECOR employee, in
glossing over the fact that it is fully corroborated by indubitable documents, the public
respondent committed grave abuse of discretion amounting to lack of jurisdiction."
(Emphasis supplied)
WHEREFORE, respondent Commission's Decision and Resolution dated June 20, 1985 and August
30, 1985, respectively, as well as the Decision of Labor Arbiter Pelagio Carpio, dated October 17,
1984, are hereby ANNULLED and SET ASIDE for having been rendered in grave abuse of discretion
amounting to lack of jurisdiction, and the original Decision of Labor Arbiter Teodorico Dogelio, dated
September 10, 1979, is hereby reinstated. Costs against private respondents.
G.R. No. 74517 February 23, 1988
PEOPLE
OF
vs.
BENNY DY, accused-appellant.

THE

PHILIPPINES, plaintiff-appellee,

MELENCIO-HERRERA, J.:
At around midnight of 7 May 1984, death cast its shadow over Boracay Island, an internationally
known tourist spot famous for its powdery white sand beach.The Island is accessible by an from
Kalibo, Aklan, after a one-and-a-half hour trip. It can also be reached in twenty (20) minutes by
pumpboat from Barangay Caticlan, the loading point for tourists going to the Island. Caticlan has a
small airfield which can service small planes. Felled by a gunshot wound on the neck, which caused
his death approximately, six (6) hours later, was Christian Langel y Philippe, a Swiss tourist who was
vacationing on the Island together with his sister and some friends.
The following day, 8 May 1984, the following police report was entered as Entry No. 3904 in the
police blotter of the Malay Police Sub-station, Malay, Aklan:
That on or about 0700H 8 May 1984, Pat. Padilla RR reported (to) this sub-station with
the living body of one Beny Dy, with caliber .38 Danao made, as suspect to the shooting
incident at Sitio Angol, Manoc-Manoc Malay, Aklan, which cause(d) the untimely death
of one Christian Langel Philippe, tourist, 24 years old and a Swiss nationale. Pat.
Salibio rushed to the hospital at Caticlan to obtain antemortem but the victim died at
about 0600H in the morning. Suspect Benny Dy voluntarily surrendered to the substation commander with his caliber 38 with serial number 33169 Smith and Wesson
(US), [Exhibit "G"].
Acting on the report, Chief of Police Tambong, also on 8 May 1984, prepared a Complaint (Exhibits
"H" and 'H-l") charging the Accused, Benny Dy, the owner of "Benny's Bar," situated on the Island,
with the crime of Murder With the Use of Unlicensed firearms (Ibid., p. 2, Original Record). The

Complaint was subscribed and sworn to before Judge Jaime R. Tonel of the 5th Municipal Circuit Trial
Court of Buruanga, Aklan, on 17 May 1984 (Exhibit "H-2") and docketed as Criminal Case No. 1776
of that Court on the same day (Exhibit "H-3", Order, p. 4, Original Record).
The witnesses listed in that Complaint, namely, Bernadette Langel of Chatelaine Geneve,
Switzerland, who is the victim's sister, and Ian Mulvey, of Essex, England, executed separate Sworn
Statements giving their respective versions of the incident (Exhibits "H-4" and 'H-7"). They did not
take the stand, however, for fear of reprisal" so that said Statements were correctly considered by the
Trial Court as hearsay. On 17 May 1984, Judge Tonel issued the following:
ORDER
Having conducted the preliminary examination of this case, this Court finds probable
cause that the crime as charged has been committed and that the accused may be
responsible thereof.
WHEREFORE, let the records of this case be registered in the docket. No warrant of
arrest is issued for the apprehension of the accused for the reason that he is already
under police custody before the filing of the complaint. For the provisional liberty of the
accused, bail is hereby fixed in the amount of Thirty Thousand Pesos (P30,000.00). (p.
4, Original Record)
The Accused posted the required bail on 13 June 1984, which was approved by Judge Tonel on the
same day. On 12 July 1984 the records of the case were forwarded to the Office of the Provincial
Fiscal, Kalibo, Aklan, "for further proceedings" (Order, p. 10, Original Record)
On 27 July 1984 the Provincial Fiscal filed the Information before the Regional Trial Court of Kalibo,
Aklan, charging the Accused with Murder. The case was docketed as Criminal Case No. 2001 in that
Court.
After trial, the lower Court rendered judgment * on 9 December 1985 with the following decretal
portion:
WHEREFORE, judgment is hereby rendered finding the accused BENNY DY y LIM
guilty beyond reasonable doubt of the crime of MURDER and sentencing him to suffer
the penalty of RECLUSION PERPETUA and to indemnify the heirs, for the death of the
victim, in the sum of P30,000.00; actual damages of P33,243.10; moral damages of
P30,000.00; exemplary damages of P30,000.00; and to pay the costs.
Hence, this appeal. The last Brief before this Court was filed on 26 February 1987 and the case was
deliberated upon on 25 January 1988.
Testifying for the prosecution in the Court below, one Wilson TUMAOB, a resident in the area, and a
fisherman by occupation, gave his account of the incident as follows:

At around 12:00 midnight while inside the bar, he saw the accused Benny Dy shoot a
white person, (meaning a European) who was hit on the right side of the neck Tsn. Nov.
12, 1984, pp. 78, 80). He recognized the accused as the one who shot the white person
because of the light coming from the petromax lamp which was in front of him and he
was just one-and-one-half meters from the accused and about the same distance from
the victim (Tsn. Nov. 12, 1984, p. 81). When he saw the accused shoot the victim, he
did not hear any conversation between them (Tsn. Nov. 14, 1984, pp. 81, 82). At that
precise time, there were many people of different nationalities coming in and out of the
bar. He did not know anyone of them except the accused Benny Dy (Tsn. Nov. 14, 1984,
p. 108). Neither did he know the helpers in the bar, nor see anyone of these customers
to be residents of, or friends of his from, barrio Balusbos, Malay, where he resides.
In the courtroom during the trial, the witness Wilson Tumaob demonstrated how the a
shot the victim.
Q. When you said you saw Benny Dy shoot the victim, can you
demonstrate to the Court how he did it?
A (As demonstrated, the victim and the accused were sitting and facing
then immediately the accused stood up and shot the victim. (Tsn. Nov. 14,
1984, pp. 117, 118).
Wilson Tumaob testified that the accused was about one meter from the victim when the
accused shot the latter. The table where he was sitting was parallel to the table where
the victim was sitting. He was looking at the accused and the victim when he saw the
accused shoot the victim, and the chair occupied by him and the chair occupied by the
victim were at the same side. (Tsn Nov. 14, 1984, pp. 119-120). After shooting the
victim, the accused remained at the place where the accused was standing (Tsn. Nov.
14, 1984, p. 118).
The victim was carried by the victim's companions to the shore and they loaded him on
a pumpboat which was anchored about fifty meters from the bar. Wilson Tumaob helped
in carrying the victim to the pumpboat to be brought to the hospital in Caticlan (Tsn. Nov.
12, 1984, pp. 82, 83). After the incident the eye-witness (Wilson Tumaob) went home
and slept at around 1:30 in the morning of May 8,1984. (pp. 4-5, Annex '1', Appellant's
Brief).
Additional prosecution evidence is to the effect that in the early morning after the incident, the
Accused confessed orally to Pat. Rodolfo Padilla, the operator of the radio station on the Island, and
voluntarily surrendered the gun he had used in shooting the victim. Pat. Padilla's testimony reads in
part:
ATTY. RESURRECCION:
Q Sometime on May 8,1984, can you tell the Honorable Court if you have
met the accused Benny Dy?

A At home after coming from the radio station, Benny Dy came to me and
inquired if the Office of the Chief of Police was opened?
Q And what did you answer him when the accused asked you that?
A I answered him that the Office of the Chief of Police is opened for twenty
four hours.
Q Did you ask Benny Dy why he asked you if the Office of the Chief of
Police was opened?
A I inquired him why, then he answered me that he had shot a tourist." (P.
6, t.s.n., October 17,1984).
xxx xxx xxx
ATTY. RESURRECCION:
Q When Benny Dy answered you that he shot a tourist, what did you do?
A I inquired him further if the tourist was dead but he answered me that
the victim was brought to the hospital.
Q What did you do as police officer when Benny Dy told you that he shot a
tourist? A He asked me to accompany him to the Office of the Chief of
Police and I further asked him the gun he used in shooting the victim and
he answered that it was still in his house.
Q When Benny Dy told you that the gun he used in shooting the tourist
was in his house, what did you do?
A I advised him to get that gun and give it to me to be deposited in the
Office of the Chief of Police.
Q Were you able to get that gun from the house of Benny Dy A Yes, sir. Q
Were you alone when you went to the house of Benny Dy to get that gun
A I called one of the policemen to accompany me.
Q What is the name of the policeman who accompanied you?
A Pat. Manuel Casimiro.
Q Were you able to get the gun from the house of Benny Dy together with
your companion Pat. Manuel Casimiro?
A Benny Dy voluntarily gave the gun to us.

Q So do we understand from you that it was Benny Dy also together with

your companion Manuel Casimiro who gave or surrendered the gun to
you?
ATTY. MARIN:
Benny Dy voluntarily gave the gun to him and Pat. Casimiro.
COURT TO THE WITNESS:
Q Where did Benny Dy give to you and Pat. Manuel Casimiro the gun that
is surrendered to you?
A In their house.
COURT:
Proceed.
ATTY. RESURRECCION:
Q Who were the persons present in the house of Benny Dy when the gun
was given to you by him?
A His houseboy called Tan-tan'.
Q Was this Tan-tan already adult or teen-ager?
A Teenager.
Q What time of May 8, 1984, did Benny Dy give to you and Pat. Manuel
Casimiro the gun he gave to you?
A About 6:00 in the morning. (pp. 7-9, Id.)
xxx xxx xxx
Q When Benny Dy told you that he shot a tourist in his establishment,
known as Benny's Bar, what else did he tell you?
A He told me that after shooting the victim he requested somebody to rush
the victim to the hospital.
Q Did you ask him why he shot the victim?
A I did not.

Q You stated that the accused Benny Dy surrendered to you a gun

together with Pat. Manuel Casimiro, if that gun is shown to you, will you be
able to Identify the same?
A Yes, sir.
Q I am showing to you a gun in a container revolver caliber.38 and one (1)
bullet exhibit against Benny Dy, which we request that this container be
marked as Exhibit 'A' for the prosecution, Your Honor.
COURT:
Mark it.
ATTY. RESURRECCION:
Q Is this the same gun you are referring to which was surrendered by
Benny Dy?
A Yes, sir, this is the one. (Witness identifying the gun.) (pp. 11-12, Id.)
The sequence of events presented by the prosecution then discloses that
Together with Pat, Manuel Casimiro, Pat. Padilla accompanied Benny Dy to the police
headquarters at the Poblacion of Malay. At the police headquarters, Pat. Padilla gave
the gun surrendered by Benny Dy to Chief of Police Ariston Tambong who in turn
handed it over to police supply officer Pat. Romulo Sijano for safekeeping (pp. 13-24,
27, Id). (pp- 7-9, Appellee's Brief).
The defense version, on the other hand, professes the innocence of the Accused, denies his
presence inside the bar during the shooting, and attributes the offense to an unrecognized person.
Thus:
On May 7, 1984, Benny Dy was inside his bar. However, he remained therein for a few
hours as he had a headache. He left his bar at around 9:30 or 10:00 o'clock in the
evening, and went to bed in a room at the annex building behind the bar. He left his
friend, Francisco Ureta known as Tan-tan and his new helper, Romy, to attend and take
charge of the bar.
In that evening of May 7, 1984, there were several customers inside the bar. Some
people were dancing. At about midnight, a person entered Benny's Bar and in less than
two (2) minutes, an explosion was heard inside the bar. The explosion caused the
customers to scream; they rushed out of the bar including the person who entered
immediately before the explosion.
The loud explosion coupled with the screaming and rushing of customers awakened
Benny Dy. He was prompted to immediately come out of his room and directly

proceeded to the bar. Inside the bar, Benny saw a man lying on the sand floor with
blood on his shirt.
Instinctively, Benny Dy carried this man to the beach, and woke up Charlie the owner of
a pump boat which could take the wounded man to the hospital. While the wounded
man was being loaded in a pumpboat, several persons arrived including Australian
Nurses to render assistance. The wounded man was finally brought to Aklan Baptist
Hospital at Caticlan, Malay, Aklan for treatment. Unfortunately, the patient, whose real
name is Christian Langel, died.
The shooting in Benny's Bar may nabaril sa Benny's Bar', immediately, spread like
forest wild fire in the small Island of Boracay and rapidly transferred from one ear to
another and in the course thereof, it became distorted from 'may nabaril sa Benny's Bar'
to 'may nabaril sa Benny and finally may nabaril si Benny'. Consequently, loose talks
rapidly spread that somebody was shot by Benny ('may nabaril si Benny').
Appellant Benny Dy who carried the victim to the shore to be brought to the hospital to
save the latter, and who facilitated the surrender to Pat. Rodolfo Padilla a gun which his
helper found the following morning while cleaning the bar, eventually found himself t
suspect in shooting of Langel. (pp. 1-3, Appellant's Brief)
All defense witnesses were one in testifying that the culprit was someone else other than the
Accused. Thus, Rodrigo Lumogdang, a carpenter allegedly hired by a friend of the Accused to repair
the kitchen of the bar, testified that around 11:30 P.M. of 7 May 1984, he saw a person go inside
Benny's Bar but could not recognize him because the petromax lamp in the bar was not so bright as it
was covered by colored red paper. In less than two minutes after said person entered, a shot
exploded from the inside of the bar. Thereafter he saw the man who had just entered rush outside
holding a gun tucked to his waist (t.s.n., June 25, 1985, pp. 7-8). He then ran a few meters away and
when he came back he saw the Accused asking "Tantan" what had happened to which the latter
replied that a white person had been shot. In particular, Lumogdang stated that he did not see the
Accused at 6:30 P.M., when he took a stroll in the beach nor when he came back at around 11:30
P.M. Much less did he see TUMAOB inside the bar.
Another defense witness, Rogelio Lakandula, testified that he went to Benny's Bar at around 10:00
P.M. of 7 May 1984. While drinking beer thereat he saw a white person, who was three meters away
from him, shot by a person he did not recognize but he saw him come from the door and enter
Benny's Bar alone. Before and after the shooting incident, he did not see either the Accused or
TUMAOB inside the bar.
Wolfer Tumaob, Jr., a nephew of the principal prosecution witness, TUMAOB, testified that on 7 May
1984 at 11:00 P.M., TUMAOB, Jover Casidsid, Welmer Taunan, Wolfer Tumaob, Sr., and he, went out
fishing at midsea staying thereat up to 6:00 A.M. of 8 May 1984 and that they did not pass Boracay
Island at all on 7 May 1984 but went home on 8 May 1984.
The accused stoutly denied having made any oral confession alleging that he went to Pat. Padilla not
to report the incident but to state that a boy helper in the bar had found a gun on the sand floor while

cleaning and that Pat. Padilla picked up the gun from the bar at his (Accused's) request (t.s.n.,
September 2, 1985, pp. 33-36). The Accused argues that even if he did make such a confession, the
same would be inadmissible in evidence.
The Trial Court found the testimonies of defense witnesses enmeshed in contradictions on material
points, rejected the disclaimers they had made, accorded more credence to the prosecution version,
and as previously stated, rendered a judgment of conviction.
In this appeal, the accused raises the following
Assignments of Error
I
The trial Court erred in holding that the Smith & Wesson revolver cal. .38 with Serial No. 33169 was
the gun which caused the death of Christian Langel.
II
The trial Court erred in finding that Wilson Tumaob testified in court ahead of Dr. Caturan, so the
former's testimony on the relative position of the accused and victim could not have been influenced
or tailored to conform to Dr. Caturan's findings on the trajectory of the bullet slug found in the victim's
body.
III
The trial Court erred in holding that Wilson Tumaob had no unfair motive to fabricate a story different
from what he actually witnessed, and in giving weight to his testimony.
IV
The trial Court erred in holding that accused shot Langel.
V
The trial Court erred in holding that the conflicting testimonies of Pat. Padilla and Casimiro relate to
minor matters which do not affect their credibility.
VI
The trial Court erred in holding that appellant made the oral confession, and in admitting the same as
well as the entries in the police blotter.
VII
The trial Court erred in holding that compliance with the constitutional procedure on custodial
interrogation is not applicable in the instant case.

VIII
The trial Court erred in holding that the uncorroborated testimony of Wilson Tumaob is sufficient to
sustain appellant's conviction.
IX
The trial Court erred in holding that the evidence adduced by the prosecution is overwhelming and
satisfied the test of proof beyond reasonable doubt in convicting appellant.
X
The trial Court erred in holding that appellant's defense of alibi is weak.
XI
The trial Court erred in convicting accused-appellant.
XII
The trial Court erred in denying accused-appellant's motion for new trial.
The basic issue is actually one of credibility, the crucial question being whether the Accused had
orally admitted his authorship of the crime and surrendered the gun he had used in shooting the
victim, as the prosecution claims, or, whether he had no involvement whatsoever, the gun
surrendered having been found by a boy helper inside the bar while cleaning the place the morning
after the incident, as the defense would have us believe.
The case history and the documentary evidence attest strongly to Appellant's oral confession and
voluntary surrender. Thus, (1) Entry No. 3904 in the police blotter of the Malay Police Sub-station,
dated 8 May 1984, supra, confirms three significant details: a) Pat. Padilla's testimony that he had
accompanied the Accused to police headquarters in the early morning of 8 May 1984 after the latter
admitted having "shot a tourist;" b) Appellant's voluntary surrender to the Chief of Police; and c) his
surrender of his Smith & Wesson revolver, cal. .38, also to the Chief of Police.
It may be that Chief of Police Ariston T. Tambong, who had presumably made such entry, died on 15
August 1984 before the start of the trial of this case below and was not in a position to Identify the
same before the Court. His successor (Lt. Audie Arroyo), however, was presented as a prosecution
witness and Identified said entry (t.s.n., October 17, 1984, pp. 29-33).
The revolver, marked as Exhibit "F", in turn, was Identified by Pat. Padilla as the firearm surrendered
by the Accused. When Pat. Padilla stated that he saw the fatal gun, its serial number and name for
the first time (t.s.n., October 17, 1984, pp. 17-19) he was clearly referring to particulars which he did
not concern himself with at the time of surrender.

Appellant's assertion that the gun he had surrendered was merely found by a boy helper while
cleaning the bar deserves no credence for, if it were so, it would have been absurd for him to have
placed himself under police custody in the early morning after the incident.
(2) The sworn Complaint for "Murder with Use of Unlicensed Firearm" signed by the Chief of Police
(Exhibit"H"), dated 8 May 1984, also attests to Appellant's oral confession. Said officer could not have
prepared the Complaint with such promptitude sans investigation at "0700H" the morning after the
incident were it not for Appellant's outright admission. That Complaint forms part of the record of the
proceedings before the Municipal Circuit Trial Court of Buruanga, Aklan, and is prima facie evidence
of the facts therein stated (Section 38, Rule 130, Rules of Court). That said Complaint was sworn to
before the Municipal Circuit Trial Court Judge and filed before this Court only on 17 May 1984 will not
detract from the fact that the Chief of Police had taken official action promptly the very morning of
Appellant's surrender by charging him with "Murder with the Use of Unlicensed Firearm" after having
heard his admission.
(3) The fact of Appellant's surrender is further borne out by the Order of the Municipal Circuit Trial
Court Judge, Judge Tonel dated 17 May 1984, categorically reciting that "no warrant of arrest is
issued for the apprehension of the accused for the reason that he is already under police
custody before the filing of the complaint." It would have been at variance with ordinary voluntarily
placed himself human behavior for Appellant to have under police custody absent any culpability for
any offense.
Contrary to the defense contention, the oral confession made by the accused to Pat. Padilla that he
had shot a tourist' and that the gun he had used in shooting the victim was in his bar which he wanted
surrendered to the Chief of Police (t.s.n., October 17, 1984, pp. 6-9), is competent evidence against
him. The declaration of an accused acknowledging his guilt of the offense charged may be given in
evidence against him (See. 29, Rule 130, Rules of Court). It may in a sense be also regarded as part
of the res gestae. The rule is that, any person, otherwise competent as a witness, who heard the
confession, is competent to testify as to the substance of what he heard if he heard and understood
all of it. An oral confession need not be repeated verbatim, but in such a case it must be given in
substance (23 C.J.S. 196, cited in People vs. Tawat, G.R. No. 62871, May 25, 1985, 129 SCRA 431).
What was told by the Accused to Pat, Padilla was a spontaneous statement not elicited through
questioning, but given an ordinary manner. No written confession was sought to be presented in
evidence as a result of formal custodial investigation. (People vs. Taylaran, G.R. No. 49149, October
31, 1981, 108 SCRA 373). The Trial Court, therefore, cannot be held to have erred in holding that
compliance with the constitutional procedure on custodial interrogation is not applicable in the instant
case, as the defense alleges in its Error VII.
With the indubitable official and documentary evidence on record, the identity of the Accused as the
victim's assailant is indisputable. The denials by the defense immediately lose their credibility and the
errors it has assigned are rendered without any merit whatsoever.
Thus, contrary to Error I, the gun which Appellant surrendered to Pat. Padilla and the Chief of Police,
coupled with his voluntary surrender, cannot but be the weapon which caused the death of the victim.

That is no inference; it is clear and direct evidence, To further require a ballistic examination and a
paraffin test would have been a superfluous exercise.
The issue raised in Error II as to who testified ahead, TUMAOB or the examining physician, Dr.
Othello Caturan, also becomes irrelevent, TUMAOB's testimony being corroborated by the
documentary evidence heretofore mentioned. Besides, even without TUMAOB's testimony the
documentary evidence on record more than suffices to overcome the disclaimers by Appellant and on
which his assigned Errors VIII & IX are predicated.
TUMAOB's motive in testifying the way he did, further assailed in Error III, is immaterial considering
the corroboration his testimony received from Appellant's proven actuations after the incident. Efforts
by the defense to discredit him as a "professional witness," who allegedly asked for a consideration
from Appellant of P500. 00 to swing the testimony in Appellant's favor, but which the latter rejected,
with the insinuation that he could have been paid by Swiss authorities to testify the way he did in
Court, is unavailing since conviction is not based on his testimony alone.
Whatever inconsistencies there may have been in the testimonies of Patrolmen Padilla and Casimiro,
posited in Error V, are sufficiently overcome by the documentary evidence of record.
As to the testimonial evidence presented by the defense, which the Trial Court rejected, we find no
reversible error in the meticulous assessment it had made thereof, ably pointing out the material
contradictions in the testimonies and consequently their lack of credibility.
The entries in the police blotter were properly admitted by the Trial Court, contrary to the allegation in
Error VI forming, as they do, part of official records.
The defense of alibi must likewise be rejected in the face of overwhelming evidence against the
Accused. The Trial Court cannot ba faulted, therefore, for denying Appellant's bid for acquittal
contrary to the allegations in Errors IV, X and XI.
Lastly, neither was any error committed by the Trial Court in denying the defense Motion for New Trial
(Error XII) based on the affidavit of recantation of witness TUMAOB that he was not at Benny's Bar
when the victim was shot. Even assuming that it can be considered as newly discovered evidence it
is insufficient to overturn the judgment already rendered, for, it bears emphasizing that conviction is
not based on TUMAOB's testimony alone. Moreover,
Affidavits of retraction executed by witnesses who had previously testified in court will
not be countenanced for the purpose of securing a new trial It would be a dangerous
rule for courts to reject testimonies solemnly taken before courts of justice simply
because the witnesses who had given them later on change their mind for one reason
or another, for such a rule would make solemn trials a mockery and place the
investigation of truth at the mercy of unscrupulous witnesses. Affidavits of retraction can
be easily secured from poor and ignorant witnesses usually for a monetary
consideration. Recanted testimony is exceedingly unreliable. So courts are wary or
reluctant to allow a new trial based on retracted testimony. (People vs. Saliling, et al, L-

27974, February 27,1976, 69 SCRA 427, cited in Ibabao vs. People, L-36957,
September 28, 1984, 132 SCRA 216).
The penalty of reclusion perpetua imposed by the Trial Court, however, will have to be modified. With
the abolition of the death penalty in the 1987 Constitution, the penalty for Murder is now reclusion
temporal in its maximum period to reclusion perpetua. With the mitigating circumstance of voluntary
surrender to which the Accused should be entitled, the penalty is imposable in its minimum period or
from seventeen (17) years, four (4) months and one (1) day to eighteen (18) years and eight (8)
months. For the application of the Indeterminate Sentence Law, the range of the penalty next lower
is prision mayor in its maximum period to reclusion temporal in its medium period, or, from ten (10)
years and one (1) day to seventeen (17) years and four (4) months.
WHEREFORE, the test of proof beyond reasonable doubt having been met, the judgment appealed
from is hereby AFFIRMED but with the penalty MODIFIED to an indeterminate sentence of ten (10)
years and one (1) day of prision mayor, as minimum, to seventeen (17) years, four (4) months and
one (1) day of reclusion temporal, as maximum. Costs against the accused-appellant Benny Dy.
SO ORDERED.
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