EN BANC

IV. IT HELD THAT PETITIONERS DUE PROCESS RIGHTS TO A FAIR

TRIAL HAVE NOT BEEN PREJUDICED BY PRE-TRIAL PUBLICITY.
V. IT HELD THAT THERE IS NOT ENOUGH EVIDENCE TO WARRANT
THE COURT TO ENJOIN THE PRELIMINARY INVESTIGATION OF THE
INCUMBENT OMBUDSMAN, PETITIONER HAVING FAILED TO
PROVE THE IMPAIRED CAPACITY OF THE OMBUDSMAN TO
RENDER A BIASED FREE DECISION.

[G.R. Nos. 146710-15. April 3, 2001]

In G.R. No. 146738, petitioner raises and argues the following issues:

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., respondents.

1. WHETHER PETITIONER RESIGNED OR SHOULD BE CONSIDERED

RESIGNED AS OF JANUARY 20, 2001;
2. WHETHER THE ANGARA DIARY IS INADMISSIBLE FOR BEING
VIOLATIVE OF THE FOLLOWING RULES ON EVIDENCE: HEARSAY,
BEST EVIDENCE, AUTHENTICATION, ADMISSIONS AND RES INTER
ALIOS ACTA;

[G.R. No. 146738. April 3, 2001]

3. WHETHER RELIANCE ON NEWSPAPER ACOUNTS IS VIOLATIVE OF

THE HEARSAY RULE;
JOSEPH
E.
ESTRADA, petitioner,
ARROYO, respondent.

vs. GLORIA

4. WHETHER CONGRESS POST FACTO CAN DECIDE PETITIONERS

INABILITY TO GOVERN CONSIDERING SECTION 11, ARTICLE VII
OF THE CONSTITUTION; and

MACAPAGAL-

RESOLUTION

5. WHETHER PREJUDICIAL PUBLICITY HAS AFFECTED PETITIONERS

RIGHT TO FAIR TRIAL.

PUNO, J.:
We find the contentions of petitioner bereft of merit.
For resolution are petitioners Motion for Reconsideration in G.R. Nos.
146710-15 and Omnibus Motion in G.R. No. 146738 of the Courts Decision of
March 2, 2001.
In G.R. Nos. 146710-15, petitioner raises the following grounds:
I. IT DISREGARDED THE CLEAR AND EXPLICIT PROVISIONS OF ART.
XI, SECTION 3 (7) OF THE CONSTITUTION AND THE SETTLED
JURISPRUDENCE THEREON.
II. IT HELD THAT PETITIONER CAN BE PROSECUTED NOW, FOR THIS
RULING WOULD VIOLATE THE DOUBLE JEOPARDY CLAUSE OF
THE CONSTITUTION, CONSIDERING THAT PETITIONER WAS
ACQUITTED IN THE IMPEACHMENT PROCEEDINGS.
III. IT HELD THAT PETITIONER IS NO LONGER ENTITLED TO
ABSOLUTE IMMUNITY FROM SUIT.

Prejudicial Publicity on the Court

Petitioner insists he is the victim of prejudicial publicity. Among others,

he assails the Decision for adverting to newspaper accounts of the events
and occurrences to reach the conclusion that he has resigned. In our
Decision, we used the totality test to arrive at the conclusion that petitioner
has resigned. We referred to and analyzed events that were prior,
contemporaneous and posterior to the oath-taking of respondent Arroyo as
president. All these events are facts which are well-established and
cannot be refuted. Thus, we adverted to prior events that built up the
irresistible pressure for the petitioner to resign. These are: (1) the expose of
Governor Luis Chavit Singson on October 4, 2000; (2) the I accuse speech of
then Senator Teofisto Guingona in the Senate; (3) the joint investigation of

the speech of Senator Guingona by the Blue Ribbon Committee and the
Committee on Justice; (4) the investigation of the Singson expose by the
House Committee on Public Order and Security; (5) the move to impeach the
petitioner in the House of Representatives; (6) the Pastoral Letter of
Archbishop Jaime Cardinal Sin demanding petitioners resignation; (7) a
similar demand by the Catholic Bishops conference; (8) the similar demands
for petitioners resignation by former Presidents Corazon C. Aquino and Fidel
V. Ramos; (9) the resignation of respondent Arroyo as Secretary of the DSWD
and her call for petitioner to resign; (10) the resignation of the members of
petitioners Council of Senior Economic Advisers and of Secretary Mar Roxas III
from the Department of Trade and Industry; (11) the defection of then Senate
President Franklin Drilon and then Speaker of the House of Representatives
Manuel Villar and forty seven (47) representatives from petitioners Lapiang
Masang Pilipino; (12) the transmission of the Articles of Impeachment by
Speaker Villar to the Senate; (13) the unseating of Senator Drilon as Senate
President and of Representative Villar as Speaker of the House; (14) the
impeachment trial of the petitioner; (15) the testimonies of Clarissa Ocampo
and former Finance Secretary Edgardo Espiritu in the impeachment trial; (16)
the 11-10 vote of the senator-judges denying the prosecutors motion to open
the 2nd envelope which allegedly contained evidence showing that petitioner
held a P3.3 billion deposit in a secret bank account under the name of Jose
Velarde; (17) the prosecutors walkout and resignation; (18) the indefinite
postponement of the impeachment proceedings to give a chance to the
House of Representatives to resolve the issue of resignation of their
prosecutors; (19) the rally in the EDSA Shrine and its intensification in various
parts of the country; (20) the withdrawal of support of then Secretary of
National Defense Orlando Mercado and the then Chief of Staff, General
Angelo Reyes, together with the chiefs of all the armed services; (21) the
same withdrawal of support made by the then Director General of the PNP,
General Panfilo Lacson, and the major service commanders; (22) the stream
of resignations by Cabinet secretaries, undersecretaries, assistant secretaries
and bureau chiefs; (23) petitioners agreement to hold a snap election and
opening of the controversial second envelope. All these prior events are
facts which are within judicial notice by this Court. There was no
need to cite their news accounts. The reference by the Court to
certain newspapers reporting them as they happened does not make
them inadmissible evidence for being hearsay. The news account
only buttressed these facts as facts. For all his loud protestations,
petitioner has not singled out any of these facts as false.
We now come to some events of January 20, 2001 contemporaneous to
the oath taking of respondent Arroyo. We used the Angara Diary to decipher
the intent to resign on the part of the petitioner. Let it be emphasized that it
is not unusual for courts to distill a persons subjective intent from the
evidence before them. Everyday, courts ascertain intent in criminal cases, in
civil law cases involving last wills and testaments, in commercial cases
involving contracts and in other similar cases. As will be discussed below, the
use of the Angara Diary is not prohibited by the hearsay rule. Petitioner may
disagree with some of the inferences arrived at by the Court from the facts
narrated in the Diary but that does not make the Diary inadmissible as
evidence.
We did not stop with the contemporaneous events but proceeded to
examine some events posterior to the oath-taking of respondent

Arroyo. Specifically, we analyzed the all important press release of the

petitioner containing his final statement which was issued after the oathtaking of respondent Arroyo as president. After analyzing its content, we
ruled that petitioners issuance of the press release and his abandonemnt of
Malacaang Palace confirmed his resignation.[1] These are overt acts which
leave no doubt to the Court that the petitioner has resigned.
In light of this finding that petitioner has resigned before 12
oclock noon of Janaury 20, 2001, the claim that the office of the
President was not vacant when respondent Arroyo took her oath of
office at half past noon of the same day has no leg to stand on.
We also reject the contention that petitioners resignation was due
to duress and an involuntary resignation is no resignation at all.
x x x [I]t has been said that, in determining whether a given resignation is
voluntarily tendered, the element of voluntariness is vitiated only when the
resignation is submitted under duress brought on by government
action. The three-part test for such duress has been stated as involving the
following elements: (1) whether one side involuntarily accepted the others
terms; (2) whether circumstances permitted no other alternative; and (3)
whether such circumstances were the result of coercive acts of the opposite
side. The view has also been expressed that a resignation may be found
involuntary if on the totality of the circumstances it appears that the
employers conduct in requesting resignation effectively deprived the
employer of free choice in the matter. Factors to be considered, under this
test, are: (1) whether the employee was given some alternative to
resignation; (2) whether the employee understood the nature of the choice
he or she was given; (3) whether the employewe was given a reasonable
time in which to choose; and (4) whether he or she was permitted to select
the effective date of resignation. In applying this totality of the circumstances
test, the assessment whether real alternatives were offered must be gauged
by an objective standard rather than by the employees purely subjective
evaluation; that the employee may perceive his or her only option to
be resignation for example, because of concerns about his or her
reputation is irrelevant. Similarly, the mere fact that the choice is
between
comparably
unpleasant
alternatives
for
example,
resignation or facing disciplinary charges does not of itself establish
that a resignation was induced by duress or coercion, and was
therefore involuntary. This is so even where the only alternative to
resignation is facing possible termination for cause, unless the employer
actually lacked good cause to believe that grounds for termination existed. In
this regard it has also been said that a resignation resulting from a choice
between resigning or facing proceedings for dismissal is not tantamount to
discharge by coercion without procedural view if the employee is given
sufficient time and opportunity for deliberation of the choice
posed.Futhermore, a resignation by an officer charged with misconduct is not
given under duress, though the appropriate authority has already determined
that the officers alternative is termination, where such authority has the legal
authority to terminate the officers employment under the particular
circumstances, since it is not duress to threaten to do what one has the legal
right to do, or to threaten to take any measure authorized by law and the
circumstances of the case.[2]

In the cases at bar, petitioner had several options available to him

other than resignation. He proposed to the holding of snap elections. He
transmitted to the Congress a written declaration of temporary inability. He
could not claim he was forced to resign because immediately before he left
Malacaang, he asked Secretary Angara: Ed, aalis na ba ako? which implies
that he still had a choice of whether or not to leave.
To be sure, pressure was exerted for the petitioner to
resign. But it is difficult to believe that the pressure completely
vitiated the voluntariness of the petitioners resignation. The
Malacaang ground was then fully protected by the Presidential Security Guard
armed with tanks and high-powered weapons. The then Chief of Staff,
General Angelo Reyes, and other military officers were in Malacaang to
assure that no harm would befall the petitioner as he left the Palace. Indeed,
no harm, not even a scratch, was suffered by the petitioner, the members of
his family and his Cabinet who stuck it out with him in his last
hours. Petitioners entourage was even able to detour safely to the Municipal
Hall of San Juan and bade goodbye to his followers before finally going to his
residence in Polk Street, Greenhills. The only incident before the petitioner
left the Palace was the stone throwing between a small group of pro and anti
Erap rallyists which resulted in minor injuries to a few of them. Certainly,
there were no tanks that rumbled through the Palace, no attack planes that
flew over the presidential residence, no shooting, no large scale violence,
except verbal violence, to justify the conclusion that petitioner was coerced
to resign.
II

Evidentiary Issues

Petitioner devotes a large part of his arguments on the alleged improper

use by this Court of the Angara Diary. It is urged that the use of the Angara
Diary to determine the state of mind of the petitioner on the issue of his
resignation violates the rule against the admission of hearsay evidence.
We are unpersuaded. To begin with, the Angara diary is not an out of
court statement. The Angara Diary is part of the pleadings in the
cases at bar. Petitioner cannot complain he was not furnished a copy of the
Angara Diary. Nor can he feign surprise on its use. To be sure, the said Diary
was frequently referred to by the parties in their pleadings.[3] The three parts
of the Diary published in the PDI from February 4-6, 2001 were attached as
Annexes A-C, respectively, of the Memorandum of private respondents
Romeo T. Capulong, et al., dated February 20, 2001. The second and third
parts of the Diary were earlier also attached as Annexes 12 and 13 of the
Comment of private respondents Capulong, et al., dated February 12,
2001. In fact, petitioner even cited in his Second Supplemental Reply
Memorandum both the second part of the diary, published on February 5,
2001,[4] and the third part, published on February 6, 2001.[5] It was also
extensively used by Secretary of Justice Hernando Perez in his oral

arguments. Thus, petitioner had all the opportunity to contest the use of the
Diary but unfortunately failed to do so.
Even assuming arguendo that the Angara Diary was an out of court
statement, still its use is not covered bythe hearsay rule.[6] Evidence is
called hearsay when its probative force depends, in whole or in part, on the
competency and credibility of some persons other than the witness by whom
it is sought to produce it.[7] There are three reasons for excluding hearsay
evidence: (1) absence of cross examination; (2) absence of demeanor
evidence, and (3) absence of the oath.[8] Not at all hearsay evidence,
however, is inadmissible as evidence. Over the years, a huge body of hearsay
evidence has been admitted by courts due to their relevance, trustworthiness
and necessity.[9] The emergence of these exceptions and their wide spread
acceptance is well-explained by Weinstein, Mansfield, Abrams and Berger as
follows:
xxx
On the other hand, we all make decisions in our everyday lives on the basis
of other persons accounts of what happened, and verdicts are usually
sustained and affirmed even if they are based on hearsay erroneously
admitted, or admitted because no objection was made. See Shepp v.
Uehlinger, 775 F 2d 452, 454-455 (1st Cir. 1985) (hearsay evidence alone can
support a verdict). Although volumes have been written suggesting ways to
revise the hearsay rule, no one advocates a rule that would bar all hearsay
evidence. Indeed, the decided historical trend has been to exclude
categories of highly probative statements from the definition of
hearsay (sections 2 and 3, infra), and to develop more class
exceptions to the hearsay rule (sections 4-11, infra). Furthermore,
many states have added to their rules the residual, or catch-all,
exceptions first pioneered by the Federal Rules which authorize the
admission of hearsay that does not satisfy a class exception,
provided it is adequately trustworthy and probative (section 12, infra).
Moreover, some commentators believe that the hearsay rule should
be abolished altogether instead of being loosened. See, e.g., Note, The
Theoretical Foundation of the Hearsay Rules, 93 Harv.L.Rev. 1786, 18041805, 1815 (1980) (footnotes omitted):
The Federal Rules of Evidence provide that [a]lthough relevant, evidence may
be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice. Under this structure, exclusion is justified by fears of how
the jury will be influenced by the evidence.However, it is not traditional to
think of hearsay as merely a subdivision of this structure, and the Federal
Rules do not conceive of hearsay in that manner. Prejudice refers to the jurys
use of evidence for inferences other than those for which the evidence is
legally relevant; by contrast, the rule against hearsay questions the jurys
ability to evaluate the strength of a legitimate inference to be drawn from the
evidence. For example, were a judge to exclude testimony because a witness
was particularly smooth or convincing, there would be no doubt as to the
usurpation of the jurys function. Thus, unlike prejudices recognized by the
evidence rules, such as those stemming from racial or religious biases or
from the introduction of photographs of a victims final state, the exclusion of
hearsay on the basis of misperception strikes at the root of the jurys function
by usurping its power to process quite ordinary evidence, the type of
information routinely encountered by jurors in their everyday lives.

Since virtually all criteria seeking to distinguish between good and bad
hearsay are either incoherent, inconsistent, or indeterminate, the only
altenative to a general rule of admission would be an absolute rule of
exclusion, which is surely inferior. More important, the assumptions necessary
to justify a rule against hearsay seem insupportable and, in any event, are
inconsistent with accepted notions of the function of the jury. Therefore, the
hearsay rules should be abolished.
Some support for this view can be found in the limited empirical research
now available which is, however, derived from simulations that suggests
that admitting hearsay has little effect on trial outcomes because
jurors discount the value of hearsay evidence. See Rakos & Landsman,
Researching the Hearsay Rule: Emerging Findings, General Issues, and Future
Directions, 76 Minn.L.Rev. 655 (1992); Miene, Park, & Borgidas, Jury Decision
Making and the Evaluation of Hearsay Evidence, 76 Minn.L.Rev. 683 (1992);
Kovera, Park, & Penrod, Jurors Perceptions of Eyewitness and Hearsay
Evidence, 76 Minn.L.Rev. 703 (1992); Landsman & Rakos, Research Essay: A
Preliminary Empirical Enquiry Concerning the prohibition of Hearsay Evidence
in American Courts, 15 Law & Psychol. Rev. 65 (1991).
Others, even if they concede that restrictions on hearsay have
some utility, question whether the benefits outweigh the cost:
The cost of maintaining the rule is not just a function of its contribution to
justice. It also includes the time spent on litigating the rule. And of course
this is not just a cost voluntarily borne by the parties, for in our system
virtually all the cost of the court salaries, administrative costs, and capital
costs are borne by the public. As expensive as litigation is for the parties, it is
supported by an enormous public subsidy. Each time a hearsay question
is litigated, the public pays. The rule imposes other costs as
well. Enormous time is spent teaching and writing about the hearsay rule,
which are both costly enterprises. In some law schools, students spend over
half their time in evidence classes learning the intricacies of the hearsay rule,
and enormous academic resources are expended on the rule.
Allen, Commentary on Professor Friendmans Article: The Evolution of the
Hearsay Rule to a Rule of Admission, 76 Minn.L.Rev. 797, 800 [1992] (but
would abolish rule only in civil cases). See also Friedman, Toward a Partial
Economic, Game-Theoretic Analysis of Hearsay, 76 Minn. L. Rev. 723 (1992).
[10]
A complete analysis of any hearsay problem requires that we further
determine whether the hearsay evidence is one exempted from the rules
of exclusion. A more circumspect examination of our rules of
exclusion will show that they do not cover admissions of a party and
the Angara Diary belongs to this class. Section 26 of Rule 130 provides
that the act, declaration or omission of a party as to a relevant fact may be
given in evidence against him.[11] It has long been settled that these
admissions are admissible even if they are hearsay. Retired Justice
Oscar Herrera of the Court of Appeals cites the various authorities who
explain why admissions are not covered by the hearsay rule:[12]
Wigmore, after pointing out that the partys declaration has generally the
probative value of any other persons asssertion, argued that it had a special
value when offered against the party. In that circumstance, the

admission discredits the partys statement with the present claim asserted in
pleadings and testimony, much like a witness impeached by contradictory
statements. Moreover, he continued, admissions pass the gauntlet of the
hearsay rule, which requires that extrajudicial assertions be excluded if
there was no opportunity for the opponent to cross-examine because it is the
opponents own declaration, and he does not need to cross examine
himself. Wigmore then added that the Hearsay Rule is satisfied since the
party now as opponent has the full opportunity to put himself on the stand
and explain his former assertion.(Wigmore on evidence, Sec. 1048
(Chadbourn Rev. 1972), cited in Sec. 154, McCormick)
According to Morgan: The admissibility of an admission made by the party
himself rests not upon any notion that the circumstances in which it was
made furnish the trier means of evaluating it fairly, but upon the adversary
theory of litigation. A party can hardly object that he had no
opportunity to cross-examine himself or that he is unworthy of
credence save when speaking under sanction of an oath.
A mans acts, conduct, and declaration, wherever made, if voluntary, are
admissible against him, for the reason that it is fair to presume that they
correspond with the truth, and it is his fault if they do not. (U.S. vs. Ching
Po, 23 Phil. 578, 583).
The Angara Diary contains direct statements of petitioner which can be
categorized as admissions of a party: his proposal for a snap presidential
election where he would not be a candidate; his statement that he only
wanted the five-day period promised by Chief of Staff Angelo Reyes; his
statements that he would leave by Monday if the second envelope would be
opened by Monday and Pagod na pagod na ako. Ayoko na, masyado nang
masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I
dont want any more of this its too painful. Im tired of the red tape, the
bureaucracy, the intrigue). I just want to clear my name, then I will go. We
noted that days before, petitioner had repeatedly declared that he would not
resign despite the growing clamor for his resignation. The reason for the
meltdown is obvious - - - his will not to resign has wilted.
It is, however, argued that the Angara Diary is not the diary of
the petitioner, hence, non-binding on him. The argument overlooks the
doctrine of adoptive admission. An adoptive admission is a partys reaction
to a statement or action by another person when it is reasonable to treat the
partys reaction as an admission of something stated or implied by the
other person.[13] Jones explains that the basis for admissibility
of admissions made vicariously is that arising from the ratification or
adoption by the party of the statements which the other person had made.
[14] To use the blunt language of Mueller and Kirkpatrick, this process of
attribution is not mumbo jumbo but common sense.[15] In the Angara
Diary, the options of the petitioner started to dwindle when the armed forces
withdrew its support from him as President and commander-in-chief. Thus,
Executive Secretary Angara had to ask Senate President Pimentel to advise
petitioner to consider the option of dignified exit or resignation. Petitioner
did not object to the suggested option but simply said he could never leave
the country. Petitioners silence on this and other related suggestions can be
taken as an admission by him.[16]

Petitioner further contends that the use of the Angara diary against
him violated the rule on res inter alios acta. The rule is expressed in
section 28 of Rule 130 of the Rules of Court, viz: The rights of a party cannot
be prejudiced by an act, declaration, or omission of another, except as
hereinafter provided.
Again, petitioner errs in his contention. The res inter alios acta rule
has several exceptions. One of them is provided in section 29 of Rule 130
with respect to admissions by a co-partner or agent.
Executive Secretary Angara as such was an alter ego of the
petitioner. He was the Little President. Indeed, he was authorized by the
petitioner to act for him in the critical hours and days before he
abandoned Malacaang Palace. Thus, according to the Angara Diary, the
petitioner told Secretary Angara: Mula umpisa pa lang ng kampanya, Ed, ikaw
na lang pinakikinggan ko. At hanggang sa huli, ikaw pa rin. (Since the start of
the campaign, Ed, you have been the only one Ive listened to. And now at the
end, you still are.)[17] This statement of full trust was made by the
petitioner after Secretary Angara briefed him about the progress of
the first negotiation. True to this trust, the petitioner had to ask Secretary
Angara if he would already leave Malacaang after taking their final lunch on
January 20, 2001 at about 1:00 p.m. TheAngara Diary quotes the petitioner
as saying to Secretary Angara: ed, kailangan ko na bang umalis? (Do I have
to leave now?)[18] Secretary Angara told him to go and he did. Petitioner
cannot deny that Secretary Angara headed his team of negotiators that met
with the team of the respondent Arroyo to discuss the peaceful and orderly
transfer of power after his relinquishment of the powers of the
presidency.The Diary shows that petitioner was always briefed by Secretary
Angara on the progress of their negotiations. Secretary Angara acted for
and in behalf of the petitioner in the crucial days before respondent
Arroyo took her oath as President. Consequently, petitioner is bound by
the acts and declarations of Secretary Angara.
Under our rules of evidence, admissions of an agent (Secretary
Angara) are binding on the principal (petitioner).[19] Jones very well
explains the reasons for the rule, viz: What is done, by agent, is done by
the principal through him, as through a mere instrument. So, whatever is said
by an agent, either in making a contract for his principal, or at the time and
accompanying the performance of any act within the scope of his authority,
having relation to, and connected with, and in the course of the particular
contract or transaction in which he is then engaged, or in the language of the
old writers, dum fervet opus is, in legal effect, said by his principal and
admissible in evidence against such principal.[20]
Moreover, the ban on hearsay evidence does not cover
independently relevant statements. These are statements which
are relevant independently of whether they are true or not. They
belong totwo (2) classes: (1) those statements which are the very facts in
issue, and (2) those statements which are circumstantial evidence of the
facts in issue. The second class includes the following:[21]
a. Statement of a person showing his state of mind, that is, his
mental condition, knowledge, belief, intention, ill will and other

emotions;
b. Statements of a person which show his physical condition, as
illness and the like;
c. Statements of a person from which an inference may be made
as to the state of mind of another, that is, the knowledge,
belief, motive, good or bad faith, etc. of the latter;
d. Statements which may identify the date, place and person in
question; and
e. Statements showing the lack of credibility of a witness.
Again, Jones tells us why these independently relevant
statements are not covered by the prohibition against hearsay
evidence:[22]
1088. Mental State or Condition Proof of Knowledge.- There are a number of
comon issues, forming a general class, in proof of which hearsay is so
obviously necessary that it is not customary to refer to its admissibility as by
virtue of any exception to the general exclusionary rule.Admissibility, in such
cases, is as of course. For example, where any mental state or condition
is in issue, such as motive, malice, knowledge, intent, assent or dissent,
unless direct testimony of the particular person is to be taken as conclusive
of his state of mind, the only method of proof available is testimony of
others to the acts or statements of such person. Where his acts or
statements are against his interest, they are plainly admissible within the
rules hereinabove announced as to admissions against interest. And even
where not against interest, if they are so closely connected with the event or
transaction in issue as to constitute one of the very facts in controversy, they
become admissible of necessity.
As aforediscussed, The Angara Diary contains statements of the petitioner
which reflect his state of mind and are circumstantial evidence of his intent to
resign. It also contains statements of Secretary Angara from which we can
reasonably deduce petitioners intent to resign. They are admissible and they
are not covered by the rule on hearsay. This has long been a quiet area of our
law on evidence and petitioners attempt to foment a belated tempest cannot
receive our imprimatur.
Petitioner also contends that the rules on authentication of
private writings and best evidence were violated in our Decision, viz:
The use of the Angara diary palpably breached several hornbook rules of
evidence, such as the rule on authentication of private writings
xxx
A. Rule on Proof of Private Writings Violated
The rule governing private documents as evidence was violated. The law
provides that before any private writing offered as authentic is received in

evidence, its due execution and authenticity must be proved either: a) by

anyone who saw the document executed or written, or b) by evidence of the
genuineness of the signature or handwriting of the maker.

Production of the original may be dispensed with, in the trial courts

discretion, whenever in the case in hand the opponent does not bona fide
dispute the contents of the document and no other useful purpose will
be served by requiring production.[24]

xxx
B. Best Evidence Rule Infringed
Clearly, the newspaper reproduction is not the best evidence of the Angara
diary. It is secondary evidence, of dubious authenticity. It was however used
by this Honorable Court without proof of the unavailability of the original or
duplicate original of the diary. The Best Evidence Rule should have been
applied since the contents of the diary are the subject of inquiry.
The rule is that, except in four (4) specific instances, [w]hen the subject of
inquiry is the contents of a document, no evidence shall be admissible other
than the original document itself.[23]
Petitioners contention is without merit. In regard to the Best Evidence
rule, the Rules of Court provides in sections 2 to 4 of Rule 130, as follows:
Sec. 2. Documentary evidence. Documents as evidence consist of writings or
any material containing letters, words, numbers, figures or other modes of
written expressions offered as proof of their contents.
Sec. 3. Original document must be produced; exceptions. When the subject of
inquiry is the contents of a document, no evidence shall be admissible other
than the original document itself, except in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in
court, without bad faith on the part of the offeror;

xxx
In several Canadian provinces, the principle of unavailability has been
abandoned, for certain documents in which ordinarily no real dispute
arised. This measure is a sensible and progressive one and deserves
universal adoption (post, sec. 1233). Its essential feature is that a copy may
be used unconditionally, if the opponent has been given an opportunity
to inspect it. (empahsis supplied)
Franciscos opinion is of the same tenor, viz:
Generally speaking, an objection by the party against whom secondary
evidence is sought to be introduced is essential to bring the best evidence
rule into application; and frequently, where secondary evidence has been
admitted, the rule of exclusion might have successfully been invoked if
proper and timely objection had been taken. No general rule as to the form or
mode of objecting to the admission of secondary evidence is set forth. Suffice
it to say here that the objection should be made in proper season that
is, whenever it appears that there is better evidence than that which
is offered and before the secondary evidence has been admitted. The
objection itself should be sufficiently definite to present a tangible question
for the courts consideration.[25]
He adds:

(b) When the original is in the custody or under the control of the party
against whom the evidence is offered, and the latter fails to produce it after
reasonable notice;

Secondary evidence of the content of the writing will be received in evidence

if no objection is made to its reception.[26]

(c) When the original consists of numerous accounts or other documents

which cannot be examined in court without great loss of time and the fact
sought to be established from them is only the general result of the whole;
and

In regard to the authentication of private writings, the Rules of Court

provides in section 20 of Rule 132, viz:

(d) When the original is a public record in the custody of a public officer or is
recorded in a public office.
Sec. 4. Original of document. (a) The original of a document is one the
contents of which are the subject of inquiry.
(b) When a document is in two or more copies executed at or about the same
time, with identical contents, all such copies are equally regarded as
originals.
(c) When an entry is repeated in the regular course of business, one being
copied from another at or near the time of the transaction, all the entries are
likewise equally regarded as originals.
It is true that the Court relied not upon the original but only copy of
the Angara Diary as published in the Philippine Daily Inquirer on February 46, 2001. In doing so, the Court, did not, however, violate the best
evidence rule. Wigmore, in his book on evidence, states that:

Sec. 20. Proof of private document. Before any private document offered as
authentic is received in evidence, its due execution and authenticity must be
proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the
maker.
Any other private document need only be identified as that which it is
claimed to be.
On the rule of authentication of private writings, Francisco states that:
A proper foundation must be laid for the admission of documentary evidence;
that is, the identity and authenticity of the document must be reasonably
established as a pre-requisite to its admission. (Rouw v. Arts, 174 Ark. 79,
294 S.W. 993, 52 A.L.R. 1263, and others) However, a party who does not
deny the genuineness of a proffered instrument may not object that
it was not properly identified before it was admitted in

evidence. (Strand v. Halverson, 220 Iowa 1276, 264 N.W. 266, 103 A.L.R.
835).[27]
Petitioner cites the case of State prosecutors v. Muro,[28] which
frowned on reliance by courts on newspaper accounts. In that case, Judge
Muro was dismissed from the service for relying on a newspaper account in
dismissing eleven (11) cases against Mrs. Imelda Romualdez Marcos. There is
a significant difference, however, between the Muro case and the cases at
bar. In the Muro case, Judge Muro dismissed the cases against Mrs. Marcos
on the basis of a newspaper account without affording the
prosecution the basic opportunity to be heard on the matter by way of a
written comment or on oral argument. . .(this is) not only a blatant denial of
elementary due process to the Government but is palpably indicative of bad
faith and partiality. In the instant cases, however, the petitioner had an
opportunity to object to the admissibility of the Angara Diary when he
filed his Memorandum dated February 20, 2001, Reply Memorandum dated
February 22, 2001, Supplemental Memorandum dated February 23, 2001,
and Second Supplemental memorandum dated February 24, 2001. He was
therefore not denied due process. In the words of Wigmore, supra, petitioner
had been given an opportunity to inspect the Angara Diary but did not
object to its admissibility. It is already too late in the day to raise his
objections in an Omnibus Motion, after the Angara Diary has been used as
evidence and a decision rendered partly on the basis thereof.
III

Temporary Inability

Petitioner argues that the Court misinterpreted the meaning of section

11, Article VII, of the Constitution in that congress can only decide the issue
of inability when there is a variance of opinion between a majority of the
Cabinet and the President. The situation presents itself when majority of the
Cabinet determines that the President is unable to govern; later, the
President informs Congress that his inability has ceased but is contradicted
by a majority of the members of the Cabinet. It is also urged that the
presidents judgment that he is unable to govern temporarily which is
thereafter communicated to the Speaker of the House and the President of
the Senate is the political question which this Court cannot review.
We cannot sustain the petitioner. Lest petitioner forgets, he himself
made the submission in G.R. No. 146738 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.[29] We sustained this
submission and held that by its many acts, Congress has already
determined and dismissed the claim of alleged temporary inability to govern
proffered
by
petitioner. If
petitioner
now
feels
aggrieved
by
the manner Congress exercised its power, it is incumbent upon him to seek
redress from Congress itself. The power is conceded by the petitioner to

be with Congress and its alleged erroneous exercise cannot be

corrected by this Court. The recognition of respondent Arroyo as our de
jure president made by Congress is unquestionably a political judgment. It
is significant that House Resolution No. 176 cited as the bases of its judgment
such factors as thepeoples loss of confidence on the ability of former
President Joseph Ejercito Estrada to effectively govern and the members of
the international community had extended their recognition of Her
Excellency, Gloria Macapagal-Arroyo as President of the Republic of the
Philippines and it has a constitutional duty of fealty to the supreme will of
the people x x x. This political judgment may be right or wrong but
Congress is answerable only to the people for its judgment. Its
wisdom is fit to be debated before the tribunal of the people and not before a
court of justice. Needles to state, the doctrine ofseparation of
power constitutes an inseparable bar against this courts interposition of its
power of judicial review to review the judgment of Congress rejecting
petitioners claim that he is still the President,albeit on leave and that
respondent Arroyo is merely an acting President.
Petitioner attempts to extricate himself from his submission that
Congress has the ultimate authority to determine his inability to govern, and
whose determination is a political question by now arguing that whether
one is a de jure or de facto President is a judicial question. Petitioners
change of theory, ill disguised as it is, does not at all impress. The cases at
bar do not present the general issue of whether the respondent Arroyo is
the de jure or a de facto President. Specific issues were raised to the Court
for resolution and we ruled on an issue by issue basis. On the issue of
resignation under section 8, Article VII of the Constitution, we held that the
issue is legal and ruled that petitioner has resigned from office before
respondent Arroyo took her oath as President. On the issue of inability to
govern under section 11, Article VII of the Constitution, we held that the
Congress has the ultimate authority to determine the question as opined by
the petitioner himself and that the determination of Congress is a political
judgment which this Court cannot review. Petitioner cannot blur these
specific rulings by the generalization that whether one is a de jure
or de facto President is a judicial question.
Petitioner now appears to fault Congress for its various acts
expressed thru resolutions which brushed off his temporary inability
to govern and President-on-leave argument. He asserts that these acts
of Congress should not be accorded any legal significance because: (1) they
are post facto and (2) a declaration of presidential incapacity cannot be
implied.
We disagree. There is nothing in section 11 of Article VII of the
Constitution which states that the declaration by Congress of the Presidents
inability must always be a priori or before the Vice-President assumes the
presidency. In the cases at bar, special consideration should be given to the
fact that the events which led to the resignation of the petitioner happened
at express speed and culminated on a Saturday. Congress was then not in
session and had no reasonable opportunity to act a priori on
petitioners letter claiming inability to govern. To be sure, however, the
petitioner cannot strictly maintain that the President of the Senate, the
Honorable Aquilino Pimentel, Jr. and the then Speaker of the House of

Representatives, the Honorable Arnulfo P. Fuentebella, recognized respondent

Arroyo as
the constitutional
successor to the
presidency post
facto. Petitioner himself states that his letter alleging his inability to govern
was received by the Office of the Speaker on January 20, 2001 at 8:30
A.M. and the Office of the Senate at 9 P.M. of the same day.[30] Respondent
took her oath of office a few minutes past 12 oclock in the afternoon of
January 20. Before the oath-taking, Senate President Pimentel, Jr. and
Speaker Fuentebella had prepared a Joint Statement which states:[31]
Joint Statement of Support
and Recognition from the
Senate President and the Speaker
Of the House of Representatives
We, the elected leaders of the Senate and the House of Representatives, are
called upon to address the constitutional crisis affecting the authority of the
President to effectively govern our distressed nation. We understand that the
Supreme Court at that time is issuing an en banc resolution recognizing this
political reality. While we may differ on the means to effect a change of
leadership, we however, cannot be indifferent and must act resolutely. Thus,
in line with our sworn duty to represent our people and in pursuit of
our goals for peace and prosperity to all, we, the Senate President
and the Speaker of the House of Representatives, hereby declare
our support and recognition to the constitutional successor to the
Presidency. We similarly call on all sectors to close ranks despite our
political differences. May God bless our nation in this period of new
beginnings.
Mabuhay and Pilipinas at ang mamamayang Pilipino.
(Sgd.) AQUILINO PIMENTEL, JR.
Senate President
(Sgd.) ARNULFO P. FUENTEBELLA

Arroyo is just a de facto President because said acts of Congress x x x are

mere circumstances of acquiescence calculated to induce people to submit to
respondents exercise of the powers of the presidency[36] is a guesswork far
divorced from reality to deserve further discussion.
Similarly way off the mark is petitioners point that while the Constitution
has made Congress the national board of canvassers for presidential and
vice-presidential elections, this Honorable Court nonetheless remains the sole
judge in presidential and vice presidential contests.[37] He thus postulates
that such constitutional provision[38] is indicative of the desire of the
sovereign people to keep out of the hands of Congress questions as to the
legality of a persons claim to the presidential office.[39] Suffice to state
that the inference is illogical. Indeed, there is no room to resort to
inference. The Constitution clearly sets out the structure on how vacancies
and election contest in the office of the President shall be
decided. Thus, section 7 of Article VII covers the instance when (a) the
President-elect fails to qualify, (b) if a President shall not have been chosen
and (c) if at the beginning of the term of the President, the President-elect
shall have died or shall have become permanently disabled. Section 8 of
Article VII covers the situation of the death, permanent disability, removal
from office or resignation of the President. Section 11 of Article VII covers
the case where 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. In each case, the
Constitution specifies the body that will resolve the issues that may
arise from the contingency. In case of election contest, section 4, Article
VII provides that the contests shall be resolved by this Court sitting en
banc. In case of resignation of the President, it is not disputed that this Court
has jurisdiction to decide the issue. In case of inability to govern, section 11
of Article VII gives the Congress the power to adjudge the issue and
petitioner himself submitted this thesis which was shared by this Court. In
light of these clear provisions of the Constitution, it is inappropriate, to say
the least, for petitioner to make inferences that simply distort their meanings.

Speaker of the House of Representatives

This a priori recognition by the President of the Senate and the Speaker of
the House of Representatives of respondent Arroyo as the constitutional
successor to the presidency was followed post facto by various resolutions
of the Senate and the House, in effect, confirming this recognition. Thus,
Resolution No. 176 expressed x x x 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 nations goal under the Constitution.
[32] Resolution No. 82 of the Senate and Resolution No. 178 of the House of
Representatives both confirmed the nomination of then Senator Teofisto
Guingona, Jr., as Vice-President.[33] It also passed Resolution No. 83
declaring the impeachment court functus officio.[34] Both Houses sent bills
to respondent Arroyo to be signed by her into law as President of the
Philippines.[35] These acts of Congress, a priori and post facto, cannot
be dismissed as merely implied recognitions of respondent Arroyo,
as the President of the Republic. Petitioners insistence that respondent

IV

Impeachment and Absolute Immunity

Petitioner contends that this Court disregarded section 3 (7) of Article XI

of the Constitution which provides:
(7) Judgment in cases of impeachment shall not extend further than removal
from office and disqualification to hold any office under the Republic of the
Philippines, but the party convicted should nevertheless be liable and subject
to prosecution, trial and punishment according to law.

Petitioner reiterates the argument that he must be first convicted in the

impeachment proceedings before he could be criminally prosecuted. A plain
reading of the provision will not yield this conclusion. The provision conveys
two uncomplicated ideas: first, it tells us that judgment in impeachment
cases has a limited reach. . .i.e., it cannot extend further than removal from
office and disqualification to hold any office under the Republic of the
Philippines, and second, it tells us the consequence of the limited reach of
a judgment in impeachment proceedings considering its nature, i.e., that the
party convicted shall still be liable and subject to prosecution, trial and
punishment according to law. No amount of manipulation will justify
petitioners non sequitur submission that the provision requires that his
conviction in the impeachment proceedings is a condition sine qua non to
his prosecution, trial and punishment for the offenses he is now facing before
the respondent Ombudsman.
Petitioner contends that the private and public prosecutors walk out
from the impeachment proceedings should be considered failure to
prosecute on the part of the public and private prosecutors, and the
termination of the case by the Senate is equivalent to acquittal.[40] He
explains failure to prosecute as the failure of the prosecution to prove the
case, hence dismissal on such grounds is a dismissal on the merits.[41] He
then concludes that dismissal of a case for failure to prosecute amounts to
an acquittal for purposes of applying the rule against double
jeopardy.[42]
Without ruling on the nature of impeachment proceedings, we
reject petitioners submission.
The records will show that the prosecutors walked out in the January
16, 2001 hearing of the impeachment cases when by a vote of 11-10, the
Senator-judges refused to open the second envelope allegedly containing
the P3.3 billion deposit of the petitioner in a secret bank account under the
name Jose Velarde. The next day, January 17, the public prosecutors
submitted a letter
to the
Speaker
of
the
House
tendering
their resignation. They also filed their Manifestation of Withdrawal of
Appearance with the impeachment tribunal. Senator Raul Roco immediately
moved for the indefinite suspensionof the impeachment proceedings until
the House of Representatives shall have resolved the resignation of
the public prosecutors. The Roco motion was then granted by Chief
Justice Davide, Jr. Beforethe House could resolve the issue of resignation of
its prosecutors or on January 20, 2001, petitioner relinquished the
presidency and respondent Arroyo took her oath as President of the
Republic. Thus, onFebruary 7, 2001, the Senate passed Resolution No.
83 declaring that the impeachment court is functus officio.
Prescinding from these facts, petitioner cannot invoke double
jeopardy. Double jeopardy attaches only: (1) upon a valid complaint; (2)
before a competent court; (3) after arraignment; (4) when a valid plea has
been entered; and (5) when the defendant was acquitted or convicted or the
case was dismissed or otherwise terminated without the express consent of
the accused.[43] Assuming arguendo that the first four requisites of double
jeopardy were complied with, petitioner failed to satisfy the fifth requisite
for he was not acquitted nor was the impeachment proceeding

dismissed without his express consent. Petitioners claim of double

jeopardy cannot be predicated on prior conviction for he was not convicted
by the impeachment court. At best, his claim of previous acquittal may be
scrutinized in light of a violation of his right to speedy trial, which amounts to
a failure to prosecute. As Bernas points out, a failure to prosecute, which is
what happens when the accused is not given a speedy trial, means failure of
the prosecution to prove the case. Hence, dismissal on such grounds is a
dismissal on the merits.[44]
This Court held in Esmea v. Pogoy[45], viz:
If the defendant wants to exercise his constitutional right to a speedy trial, he
should ask, not for the dismissal, but for the trial of the case. After the
prosecutions motion for postponement of the trial is denied and upon order of
the court the fiscal does not or cannot produce his evidence and,
consequently fails to prove the defendants guilt, the court upon defendants
motion shall dismiss the case, such dismissall amounting to an acquittal of
the defendant.
In a more recent case, this Court held:
It is true that in an unbroken line of cases, we have held that the dismissal of
cases on the ground of failure to prosecute is equivalent to an acquittal that
would bar further prosecution of the accused for the same offense. It must be
stressed, however, that these dismissals were predicated on the clear right of
the accused to speedy trial. These cases are not applicable to the petition at
bench considering that the right of the private respondents to speedy trial
has not been violated by the State. For this reason, private respondents
cannot invoke their right against double jeopardy.[46]
Petitioner did not move for the dismissal of the impeachment
case against him. Even assuming arguendo that there was a move for its
dismissal, not every invocation of an accuseds right to speedy trial is
meritorious. While the Court accords due importance to an accuseds right to
a speedy trial and adheres to a policy of speedy administration of justice, this
right cannot be invoked loosely. Unjustified postponements which prolong the
trial for an unreasonable length of time are what offend the right of the
accused to speedy trial.[47] The following provisions of the Revised Rules of
Criminal Procedure are apropos:
Rule 115, Section 1(h). Rights of accused at the trial. -- In all criminal
prosecutions, the accused shall be entitled to the following rights:
(h) To have speedy, impartial and public trial.
Rule 119, Section 2. Continuous trial until terminated; postponements.-- Trial
once commenced shall continue from day to day as far as practicable until
terminated. It may be postponed for a reasonable length of time for good
cause.
The court shall, after consultation with the prosecutor and defense counsel,
set the case for continuous trial on a weekly or other short-term trial calendar
at the earliest possible time so as to ensure speedy trial. In no case shall the
entire trial period exceed one hundred eighty (180) days from the first day of
trial, except as otherwise authorized by the Supreme Court.

Petitioner therefore failed to show that the postponement of the

impeachment proceedings was unjustified, much less that it was for
an unreasonable length of time. Recalling the facts, on January 17, 2001,
the impeachment proceeding was suspended until the House of
Representatives shall have resolved the issue on the resignation of the public
prosecutors. This was justified and understandable for an impeachment
proceeding without a panel of prosecutors is a mockery of the impeachment
process. However, three (3) days from the suspension or January 20, 2001,
petitioners resignation supervened. With the sudden turn of events, the
impeachment court became functus officio and the proceedings were
therefore terminated. By no stretch of the imagination can the four-day
period from the time the impeachment proceeding was suspended to the day
petitioner resigned, constitute an unreasonable period of delay violative of
the right of the accused to speedy trial.
Nor can the claim of double jeopardy be grounded on the
dismissal or termination of the case without the express consent of
the accused. We reiterate that the impeachment proceeding was closed
only after the petitioner had resigned from the presidency, thereby rendering
the impeachment court functus officio. By resigning from the presidency,
petitioner more than consented to the termination of the impeachmment
case against him, for he brought about the termination of the
impeachment proceedings. We have consistently ruled that when the
dismissal or termination of the case is made at the instance of the accused,
there is no double jeopardy.[48]
Petitioner stubbornly clings to the contention that he is entitled
to absolute immunity from suit. His arguments are merely recycled and
we need not prolong the longevity of the debate on the subject. In our
Decision, we exhaustively traced the origin of executive immunity in our
jurisdiction and its bends and turns up to the present time. We held that
given the intent of the 1987 Constitution to breathe life to the policy that a
public office is a public trust, the petitioner, as a non-sitting President,
cannot claim executive immunity for his alleged criminal acts
committed while a sitting President. Petitioners rehashed arguments
including their thinly disguised new spins are based on the rejected
contention that he is still President, albeit, a President on leave. His stance
that his immunity covers his entire term of office or until June 30, 2004
disregards the reality that he has relinquished the presidency and there is
now a new de jure President.
Petitioner goes a step further and avers that even a non-sitting President
enjoys immunity from suit during his term of office. He buttresses his
position with the deliberations of the Constitutional Commission, viz:

kind of an immunity, he might be spending all his time facing litigations, as

the President-in-exile in Hawaii is now facing litigations almost daily?
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 the understanding, I will not press for any more query,
madam President.
I thank the Commissioner for the clarification.[49]
Petitioner, however, fails to distinguish between term and
tenure. The term means the time during which the officer may claim to hold
the office as of right, and fixes the interval after which the several
incumbents shall succeed one another. The tenure represents the term during
which the incumbent actually holds office. The tenure may be shorter than
the term for reasons within or beyond the power of the incumbent.[50] From
the deliberations, the intent of the framers is clear that the
immunity of the president from suit is concurrent only with his
tenure and not his term.
Indeed, petitioners stubborn stance cannot but bolster the belief that the
cases at bar were filed not really for petitioner to reclaim the presidency but
just to take advantage of the immunity attached to the presidency and thus,
derail the investigation of the criminal cases pending against him in the
Office of the Ombudsman.

Prejudicial Publicity on the Ombudsman

Mr. Suarez. Thank you.

The last question is with reference to the Committees 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 this 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

Petitioner hangs tough on his submission that his due process rights to a
fair trial have been prejudiced by pre-trial publicity. In our Decision, we held
that there is not enough evidence to sustain petitioners claim of prejudicial
publicity. Unconvinced, petitioner alleges that the vivid narration of events in
our Decision itself proves the pervasiveness of the prejudicial publicity. He
then posits the thesis that doubtless, the national fixation with the probable
guilt of petitioner fueled by the hate campaign launched by some high

circulation newspaper and by the bully pulpit of priests and bishops left
indelible impression on all sectors of the citizenry and all regions, so harsh
and so pervasive that the prosecution and the judiciary can no longer assure
petitioner a sporting chance.[51] To be sure, petitioner engages
inexageration when he
alleges
that all sectors
of
the
citizenry
and all regions have been irrevocably influenced by this barrage of
prejudicial publicity. This exaggeration collides with petitioners claim
that he still enjoys the support of the majority of our people,
especially the masses.
Petitioner pleads that we apply the doctrine of res ipsa loquitur (the
thing or the transaction speaks for itself) to support his argument. Under
the res ipsa loquitur rule in its broad sense, the fact of the occurrence of an
injury, taken with the surrounding circumstances, may permit an inference or
raise a presumption of negligence, or make out a plaintiffs prima facie case,
and present a question of fact for defendant to meet with an explanation.
[52] It is not a rule of substantive law but more a procedural rule. Its mere
invocation does not exempt the plaintiff with the requirement of proof to
prove negligence. It merely allows the plaintiff to present along with the proof
of the accident, enough of the attending circumstances to invoke the
doctrine, creating an inference or presumption of negligence and to thereby
place on the defendant the burden of going forward with the proof.[53]
We hold that it is inappropriate to apply the rule on res ipsa
loquitur, a rule usually applied only in tort cases, to the cases at
bar. Indeed, there is no court in the whole world that has applied
the res ipsa loquitur rule to resolve the issue of prejudicial
publicity. We again stress that the issue before us is whether the alleged
pervasive publicity of the cases against the petitioner has prejudiced the
minds of the members of the panel of investigators. We reiterate the test we
laid down in People v. Teehankee,[54] to resolve this issue, viz:
We cannot sustain appellants 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 an accuseds right to a fair trial for, as well pointed out , a
responsible press has always been regarded as the handmaiden of effective
judicial administration, especially in the criminal field x x x. 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, gavelto-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 off-court publicity of sensational criminal cases. The state of the art of
our communication system brings news as hey happen 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 lost their impartiality. x x x x x x x x x. Our
judges are learned in the law and trained to disregard off-court evidence and
on-camera performances of parties to a 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 bar,
the records do not show that the trial judge developed actual bias against
appellant 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.
Petitioner keeps on pounding on the adverse publicity against
him but fails to prove how the impartiality of the panel of
investigators from the Office of the Ombudsman has been infected
by it. As we held before and we hold it again, petitioner has completely
failed to adduce any proof of actual prejudice developed by the members
of the Panel of Investigators. This fact must be established by clear and
convincing evidence and cannot be left to loose surmises and conjectures. In
fact, petitioner did not even identify the members of the Panel of
Investigators. We cannot replace this test of actual prejudice with the rule
of res ipsa loquitur as suggested by the petitioner. The latter rule assumes
that an injury (i.e., prejudicial publicity) has been suffered and then shifts the
burden to the panel of investigators to prove that the impartiality of its
members has been affected by said publicity. Such a rule will overturn our
case law that pervasive publicity is not per se prejudicial to the right of an
accused to fair trial. The cases are not wanting where an accused has been
acquitted despite pervasive publicity.[55] For this reason, we continue to hold
that it is not enough for petitioner to conjure possibility of prejudicebut
must prove actual prejudice on the part of his investigators for the Court
to sustain his plea. It is plain that petitioner has failed to do so.
Petitioner agains suggests that the Court should order a 2-month
cooling off period to allow passions to subside and hopefully the alleged
prejudicial publicity against him would die down. We regret not to acquiesce
to the proposal. There is no assurance that the so called 2-month cooling off
period will achieve its purpose. The investigation of the petitioner is a natural
media event. It is the first time in our history that a President will be
investigated by the Office of the Ombudsman for alleged commission of
heinous crimes while a sitting President. His investigation will even be
monitored by the foreign press all over the world in view of its legal and
historic significance. In other words, petitioner cannot avoid the kleiglight of
publicity. But what is important for the petitioner is that his
constitutional rights are not violated in the process of

investigation. For this reason, we have warned the respondent Ombudsman

in our Decision to conduct petitioners preliminary investigation in a circusfree atmosphere.Petitioner is represented by brilliant legal minds who can
protect his right as an accused.

VI

Recusation

Finally, petitioner prays that the members of this Honorable Court who
went to EDSA put on record who they were and consider recusing or
inhibiting themselves, particularly those who had ex-parte contacts with
those exerting pressure on this Honorable Court, as mentioned in our Motion
of March 9, 2001, given the need for the cold neutrality of impartial judges.
[56]
We hold that the prayer lacks merit. There is no ground to inhibit
the twelve (12) members of the Court who merely accepted the invitation of
the respondent Arroyo to attend her oath taking. As mere spectators of a
historic event, said members of the Court did not prejudge the legal basis
of the claim of respondent Arroyo to the presidency at the time she took her
oath. Indeed, the Court in its en banc resolution on January 22, 2001, the first
working day after respondent Arroyo took her oath as President, held in
Administrative Matter No. 01-1-05 SC, to wit:
A.M. No. 01-1-05-SC In re: Request for 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 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.
This resolution is without prejudice to the disposition of any justiciable case
that may be filed by a proper party.
The above resolution was unanimously passed by the 15 members of
the Court. It should be clear from the resolution that the Court did not treat
the letter of respondent Arroyo to be administered the oath by Chief Justice
Davide, Jr., as a case but as an administrative matter. If it were considered
as a case, then petitioner has reason to fear that the Court has
predetermined the legitimacy of the claim of respondent Arroyo to

the presidency. To dispel the erroneous notion, the Court precisely

treated the letter as an administrative matter and emphasized that
it was without prejudice to the disposition of any justiciable case
that may be filed by a proper party. In further clarification, the Court on
February 20, 2001 issued another resolution to inform the parties and the
public that it xxx 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. Thus, there is no reason
for petitioner to request for the said twelve (12) justices to recuse
themselves. To be sure, a motion to inhibit filed by a party after
losing his case is suspect and is regarded with general disfavor.
Moreover, to disqualify any of the members of the Court, particularly a
majority of them, is nothing short of pro tanto depriving the Court itself of
its jurisdiction as established by the fundamental law.Disqualification of a
judge is a deprivation of his judicial power. And if that judge is the one
designated by the Constitution to exercise the jurisdiction of his court, as is
the case with the Justices of this Court, the deprivation of his or their judicial
power is equivalent to the deprivation of the judicial power of the court
itself. It affects the very heart of judicial independence.[57] The proposed
mass disqualification, if sanctioned and ordered, would leave the Court no
alternative but to abandon a duty which it cannot lawfully discharge if shorn
of the participation of its entire membership of Justices.[58]
IN VIEW WHEREOF, petitioners Motion for Reconsideration in G.R. Nos.
146710-15 and his Omnibus Motion in G.R. No. 146738 are DENIED for lack of
merit.
SO ORDERED.

G.R. Nos. 115908-09 December 6, 1995

PEOPLE
OF
THE
vs.
DANNY GODOY, * accused-appellant.

PHILIPPINES, plaintiff-appellee,

REGALADO, J.:
Often glossed over in the emotional arguments against capital punishment is
the amplitude of legal protection accorded to the offender. Ignored by the
polemicist are the safeguards designed to minimally reduce, if not altogether
eliminate, the grain of human fault. Indeed, there is no critique on the
plethora of rights enjoyed by the accused regardless of how ruthlessly he
committed the crime. Any margin of judicial error is further addressed by the
grace of executive clemency. But, even before that, all convictions imposing
the penalty of death are automatically reviewed by this Court. The cases at
bar, involving two death sentences, apostrophize for the condemned the role
of this ultimate judicial intervention.
Accused-appellant Danny Godoy was charged in two separate informations
filed before the Regional Trial Court, for Palawan and Puerto Princesa City,
Branch 47, with rape and kidnapping with serious illegal detention,

respectively punished under Articles 335 and 267 of the Revised Penal Code,
to wit:
In Criminal Case No. 11640 for Rape:
That on or about the evening of the 21st day of January,
1994, at Barangay Pulot Center, Municipality of Brooke's
Point, Province of Palawan, Philippines, and within the
jurisdiction of this Honorable Court, the said accused by
means of force, threat and intimidation, by using a knife and
by means of deceit, did then and there wilfully, unlawfully and
feloniously have carnal knowledge with one Mia Taha to her
damage and prejudice. 1
In Criminal Case No. 11641 for Kidnapping with Serious Illegal
Detention:
That on or about the 22nd day of January, 1994, at Barangay
Ipilan, Municipality of Brooke's Point, Province of Palawan,
Philippines, and within the jurisdiction of this Honorable Court,
the said accused, a private individual, and being a teacher of
the victim, Mia Taha, and by means of deceit did then and
there wilfully, unlawfully and feloniously kidnap or detained
(sic) said Mia Taha, a girl of 17 years old (sic), for a period of
five (5) days thus thereby depriving said Mia Taha of her
liberty against her will and consent and without legal
justification, to the damage and prejudice of said Mia Taha. 2
During the arraignment on both indictments, appellant pleaded not guilty to
said charges and, after the pre-trial was terminated, a joint trial of the two
cases was conducted by the trial court. 3
According to complainant Mia Taha, at around 7:00 P.M. of January 21, 1994,
she went to the boarding house of her cousin, Merlylyn Casantosan, at Pulot
Center, Brooke's Point which is near the Palawan National School (PNS), Pulot
Branch, where she was studying. When she saw that the house was dark, she
decided to pass through the kitchen door at the back because she knew that
there was nobody inside. As soon as she opened the door, somebody
suddenly grabbed her, poked a knife on her neck, dragged her by the hand
and told her not to shout. She was then forced to lie down on the floor.
Although it was dark, complainant was able to recognize her assailant, by the
light coming from the moon and through his voice, as accused-appellant
Danny Godoy who was her Physics teacher at PNS.
When she was already on the floor, appellant removed her panty with one
hand while holding the knife with the other hand, opened the zipper of his
pants, and then inserted his private organ inside her private parts against her
will. She felt pain because it was her first experience and she cried.
Throughout her ordeal, she could not utter a word. She was very frightened
because a knife was continually pointed at her. She also could not fight back
nor plead with appellant not to rape her because he was her teacher and she
was afraid of him. She was threatened not to report the incident to anyone or
else she and her family would be killed.
Thereafter, while she was putting on her panty, she noticed that her skirt was
stained with blood. Appellant walked with her to the gate of the house and
she then proceeded alone to the boarding house where she lived. She did not
see where appellant went after she left him at the gate. When she arrived at

her boarding house, she saw her landlady but she did not mention anything
about the incident.
The following morning, January 22, 1994, complainant went home to her
parents' house at Ipilan, Brooke's Point. She likewise did not tell her parents
about the incident for fear that appellant might make good his threat. At
around 3:00 P.M. of that same day, appellant arrived at the house of her
parents and asked permission from the latter if complainant could
accompany him to solicit funds because she was a candidate for "Miss PNS
Pulot." When her parents agreed, she was constrained to go with appellant
because she did not want her parents to get into trouble.
Appellant and complainant then left the house and they walked in silence,
with Mia following behind appellant, towards the highway where appellant
hailed a passenger jeep which was empty except for the driver and the
conductor. She was forced to ride the jeep because appellant threatened to
kill her if she would not board the vehicle. The jeep proceeded to the Sunset
Garden at the poblacion, Brooke's Point where they alighted.
At the Sunset Garden, appellant checked in and brought her to a room where
they staye d for three days. During the entire duration of their stay at the
Sunset Garden, complainant was not allowed to leave the room which was
always kept locked. She was continuously guarded and constantly raped by
appellant. She was, however, never drunk or unconscious. Nonetheless, she
was forced to have sex with appellant because the latter was always carrying
a knife with him.
In the early morning of January 25, 1994, appellant brought her to the house
of his friend at Edward's Subdivision where she was raped by him three
times. She was likewise detained and locked inside the room and tightly
guarded by appellant. After two days, or on January 27, 1994, they left the
place because appellant came to know that complainant had been reported
and indicated as a missing person in the police blotter. They went to see a
certain Naem ** from whom appellant sought help. On that same day, she
was released but only after her parents agreed to settle the case with
appellant.
Immediately thereafter, Mia's parents brought her to the District Hospital at
Brooke's Point where she was examined by Dr. Rogelio Divinagracia who
made the following medical findings:
GENERAL: Well developed, nourished, cooperative, walking,
conscious, coherent Filipina.
BREAST: Slightly globular with brown colored areola and
nipple.
EXTERNAL EXAM.: Numerous pubic hair, fairly developed labia
majora and minora, hymenal opening stellate in shape,
presence of laceration superficial, longitudinal at the fossa
navicularis, approximately 1/2 cm. length.
INTERNAL EXAM.: Hymenal opening, stellate in shape,
laceration noted, hymenal opening admits 2 fingers with
slight resistance, prominent vaginal rugae, cervix closed.
CONCLUSION: Hymenal opening admits easily 2 fingers with
slight resistance, presence of laceration, longitudinal at the
fossa navicularis approximately 1/2 cm. length. Hymenal

opening can admit an average size penis in erection with

laceration. 4
Dr. Divinagracia further testified that the hymenal opening was in stellate
shape and that there was a laceration, which shows that complainant had
participated in sexual intercourse. On the basis of the inflicted laceration
which was downward at 6 o'clock position, he could not say that there was
force applied because there were no scratches or bruises, but only a weekold laceration. He also examined the patient bodily but found no sign of
bruises or injuries. The patient told him that she was raped.
During the cross-examination, complainant denied that she wrote the letters
marked as Exhibits "1" and "2"; that she never loved appellant but, on the
contrary, she hated him because of what he did to her; and that she did not
notice if there were people near the boarding house of her cousin. She
narrated that when appellant started to remove her panty, she was already
lying down, and that even as appellant was doing this she could not shout
because she was afraid. She could not remember with which hand appellant
held the knife. She was completely silent from the time she was made to lie
down, while her panty was being removed, and even until appellant was able
to rape her.
When appellant went to their house the following day, she did not know if he
was armed but there was no threat made on her or her parents. On the
contrary, appellant even courteously asked permission from them in her
behalf and so they left the house with appellant walking ahead of her. When
she was brought to the Sunset Garden, she could not refuse because she was
afraid. However, she admitted that at that time, appellant was not pointing a
knife at her. She only saw the cashier of the Sunset Garden but she did not
notice if there were other people inside. She likewise did not ask the
appellant why he brought her there.
Complainant described the lock in their room as an ordinary doorknob, similar
to that on the door of the courtroom which, even if locked, could still be
opened from the inside, and she added that there was a sliding lock inside
the room. According to her, they stayed at Sunset Garden for three days and
three nights but she never noticed if appellant ever slept because everytime
she woke up, appellant was always beside her. She never saw him close his
eyes.
Helen Taha, the mother of complainant, testified that when the latter arrived
at their house in the morning of January 22, 1994, she noticed that Mia
appeared weak and her eyes were swollen. When she asked her daughter if
there was anything wrong, the latter merely kept silent. That afternoon, she
allowed Mia to go with appellant because she knew he was her teacher.
However, when Mia and appellant failed to come home at the expected time,
she and her husband, Adjeril, went to look for them at Ipilan. When they
could not find them there, she went to the house of appellant because she
was already suspecting that something was wrong, but appellant's wife told
her that he did not come home.
Early the next morning, she and her husband went to the Philippine National
Police (PNP) station at Pulot, Brooke's Point and had the incident recorded in
the police blotter. The following day, they went to the office of the National
Bureau of Investigation (NBI) at Puerto Princess City, then to the police
station near the NBI, and finally to the radio station airing the Radyo ng
Bayan program where she made an appeal to appellant to return her

daughter. When she returned home, a certain Naem was waiting there and he
informed her that Mia was at Brooke's Point. He further conveyed appellant's
willingness to become a Muslim so he could marry Mia and thus settle the
case. Helen Taha readily acceded because she wanted to see her daughter.
In the morning of January 27, 1994, she went to the house of Naem who sent
somebody to fetch complainant. She testified that when Mia arrived, she was
crying as she reported that she was raped by appellant, and that the latter
threatened to kill her if she did not return within an hour. Because of this, she
immediately brought Mia to the hospital where the latter was examined and
then they proceeded to the municipal hall to file a complaint for rape and
kidnapping. Both Mia and Helen Taha executed separate sworn statements
before the PNP at Brooke's Point.
Later, Fruit Godoy, the wife of appellant, went to their house and offered
P50,000.00 for the settlement of the case. On their part, her husband insisted
that they just settle, hence all three of them, Adjeril, Helen and Mia Taha,
went to the Office of the Provincial Prosecutor where they met with the
mother of appellant who gave them P30,000.00. Adjeril and Helen Taha
subsequently executed an affidavit of desistance in Criminal Case No. 7687
for kidnapping pending in the prosecutor's office, which was sworn to before
Prosecutor II Chito S. Meregillano. Helen Taha testified that she agreed to the
settlement because that was what her husband wanted. Mia Taha was
dropped from the school and was not allowed to graduate. Her father died
two months later, supposedly because of what happened.
The defense presented a different version of what actually transpired.
According to appellant, he first met Mia Taha sometime in August, 1993 at
the Palawan National School (PNS). Although he did not court her, he fell in
love with her because she often told him "Sir, I love you." What started as a
joke later developed into a serious relationship which was kept a secret from
everybody else. It was on December 20, 1993 when they first had sexual
intercourse as lovers. Appellant was then assigned at the Narra Pilot
Elementary School at the poblacion because he was the coach of the Palawan
delegation for chess. At around 5:00 P.M. of that day, complainant arrived at
his quarters allegedly because she missed him, and she then decided to
spend the night there with him.
Exactly a month thereafter, specifically in the evening of January 20, 1994,
Erna Baradero, a teacher at the PNS, was looking inside the school building
for her husband, who was a security guard of PNS, when she heard voices
apparently coming from the Orchids Room. She went closer to listen and she
heard a girl's voice saying "Mahal na mahal kita, Sir, iwanan mo ang iyong
asawa at tatakas tayo." Upon hearing this, she immediately opened the door
and was startled to see Mia Taha and Danny Godoy holding hands. She asked
them what they were doing there at such an unholy hour but the two, who
were obviously caught by surprise, could not answer. She then hurriedly
closed the door and left. According to this witness, complainant admitted to
her that she was having an affair with appellant. Desirous that such illicit
relationship must be stopped, Erna Baradero informed appellant's wife about
it when the latter arrived from Manila around the first week of February,
1994.
Upon the request of appellant's wife, Erna Baradero executed an affidavit in
connection with the present case, but the same was not filed then because of
the affidavit of desistance which was executed and submitted by the parents

of complainant. In her sworn statement, later marked in evidence as Exhibit

"7", Erna Baradero alleged that on January 21, 1994, she confronted Mia Taha
about the latter's indiscretion and reminded her that appellant is a married
man, but complainant retorted, "Ano ang pakialam mo," adding that she
loves appellant very much.

the funds they had solicited. That evening, however, appellant told
complainant at around 9:00 P.M. that he was going out to see a certain Bert
Dalojo at the latter's residence. In truth, he borrowed a motorcycle from
Fernando Rubio and went home to Pulot. He did not bring complainant along
because she had refused to go home.

Appellant testified that on January 21, 1994, at around 7:00 P.M., Mia Taha
went to his office asking for help with the monologue that she would be
presenting for the Miss PNS contest. He agreed to meet her at the house of
her cousin, Merlylyn Casantosan. However, when he reached the place, the
house was dark and he saw Mia waiting for him outside. Accordingly, they
just sat on a bench near the road where there was a lighted electric post and
they talked about the matter she had earlier asked him about. They stayed
there for fifteen minutes, after which complainant returned to her boarding
house just across the street while appellant headed for home some fifteen
meters away.

The following morning, January 23, 1994, appellant went to the house of
complainant's parents and informed them that Mia spent the night at the
Sunset Garden. Mia's parents said that they would just fetch her there, so he
went back to Sunset Garden and waited for them outside the hotel until 5:00
P.M. When they did not arrive, he decided to go with one Isagani Virey, whom
he saw while waiting near the road, and they had a drinking session with
Virey's friends. Thereafter, Virey accompanied him back to Sunset Garden
where they proceeded to Mia's room. Since the room was locked from the
inside, Virey had to knock on the door until it was opened by her.

It appears that while complainant was then waiting for appellant, Filomena
Pielago, a former teacher of Mia at PNS and who was then on her way to a
nearby store, saw her sitting on a bench and asked what she was doing there
at such a late hour. Complainant merely replied that she was waiting for
somebody. Filomena proceeded to the store and, along the way, she saw
Inday Zapanta watering the plants outside the porch of her house. When
Filomena Pielago returned, she saw complainant talking with appellant and
she noticed that they were quite intimate because they were holding hands.
This made her suspect that the two could be having a relationship. She,
therefore, told appellant that his wife had finished her aerobics class and was
already waiting for him. She also advised Mia to go home.
Prior to this incident, Filomena Pielago already used to see them seated on
the same bench. Filomena further testified that she had tried to talk appellant
out of the relationship because his wife had a heart ailment. She also warned
Mia Taha, but to no avail. She had likewise told complainant's grandmother
about her activities. At the trial, she identified the handwriting of complainant
appearing on the letters marked as Exhibits "1" and "2", claiming that she is
familiar with the same because Mia was her former student. On crossexamination, Filomena clarified that when she saw the couple on the night of
January 21, 1994, the two were talking naturally, she did not see Mia crying,
nor did it appear as if appellant was pleading with her.
In the afternoon of the following day, January 22, 1994, appellant met Mia's
mother on the road near their house and she invited him to come up and eat
"buko," which invitation he accepted. Thirty minutes thereafter, complainant
told him to ask permission from her mother for them to go and solicit funds at
the poblacion, and he did so. Before they left, he noticed that Mia was
carrying a plastic bag and when he asked her about it, she said that it
contained her things which she was bringing to her cousin's house. Appellant
and Mia went to the poblacion where they solicited funds until 6:30 P.M. and
then had snacks at the Vic Tan Store.
Thereafter, complainant told appellant that it was already late and there was
no more available transportation, so she suggested that they just stay at
Sunset Garden. Convinced that there was nothing wrong in that because they
already had intimate relations, aside from the fact that Mia had repeatedly
told him she would commit suicide should he leave her, appellant was
prevailed upon to stay at the hotel. Parenthetically, it was complainant who
arranged their registration and subsequently paid P400.00 for their bill from

Once inside, he talked to complainant and asked her what they were doing,
but she merely answered that what she was doing was of her own free will
and that at that moment her father was not supposed to know about it for,
otherwise, he would kill her. What complainant did not know, however, was
that appellant had already reported the matter to her parents, although he
opted not to tell her because he did not want to add to her apprehensions.
Isagani Virey further testified that when he saw appellant and complainant on
January 23 and 24, 1994, the couple looked very happy.
Appellant denied that they had sexual intercourse during their entire stay at
Sunset Garden, that is, from January 22 to 24, 1994, because he did not have
any idea as to what she really wanted to prove to him. Appellant knew that
what they were doing was wrong but he allegedly could not avoid Mia
because of her threat that she would commit suicide if he left her. Thus,
according to appellant, on January 24, 1994 he asked Isagani Virey to
accompany him to the house of Romy Vallan, a policeman, to report the
matter.
Additionally, Virey testified that appellant and Mia went to see him at his
aunt's house to ask for assistance in procuring transportation because,
according to appellant, the relatives of Mia were already looking for them and
so they intend to go to Puerto Princesa City. Virey accompanied them to the
house of Romy Vallan, whose wife was a co-teacher of appellant's wife, but
the latter refused to help because of the complicated situation appellant was
in.
Nevertheless, Vallan verified from the police station whether a complaint had
been filed against appellant and after finding out that there was none, he told
appellant to just consult a certain Naem who is an "imam." Appellant was
able to talk to Naem at Vallan's house that same day and bared everything
about him and Mia. Naem suggested that appellant marry complainant in
Muslim rites but appellant refused because he was already married. It was
eventually agreed that Naem would just mediate in behalf of appellant and
make arrangements for a settlement with Mia's parents. Later that day,
Naem went to see the parents of complainant at the latter's house.
The following day, January 25, 1994, allegedly because complainant could no
longer afford to pay their hotel bills, the couple were constrained to transfer
to the house of appellant's friend, Fernando Rubio, at Edward's Subdivision
where they stayed for two days. They just walked along the national highway
from Sunset Garden to Edward's Subdivision which was only five hundred to

seven hundred meters away. The owner of the house, Fernando Rubio, as well
as his brother Benedicto Rubio, testified that the couple were very happy,
they were intimate and sweet to each other, they always ate together, and it
was very obvious that they were having a relationship.

While they were at Edward's Subdivision, they never had sexual relations.
Appellant was told, when complainant visited him in jail, that her father
would kill her if she refused to testify against him, although by the time she
testified in court, her father had already died.

In fact, Fernando Rubio recalled that complainant even called appellant

"Papa." While they were there, she would buy food at the market, help in the
cooking, wash clothes, and sometimes watch television. When Fernando
Rubio once asked her why she chose to go with appellant despite the fact the
he was a married man, Mia told him that she really loved appellant. She
never told him, and Fernando Rubio never had the slightest suspicion, that
she was supposed to have been kidnapped as it was later claimed. He also
testified that several police officers lived within their neighborhood and if
complainant had really been kidnapped and detained, she could have easily
reported that fact to them. Mia was free to come and go as she pleased, and
the room where they stayed was never locked because the lock had been
destroyed.

Appellant further testified that complainant has had several illicit relations in
the boarding house of her cousin, Merlylyn Casantosan, which was a wellknown fact in Pulot. However, he decided to have a relationship with her
because he wanted to change her and that was what they had agreed upon.
Appellant denied that, during the time when they were staying together, Mia
had allegedly asked permission to leave several times but that he refused.
On the contrary, he claimed that on January 27, 1994 when she told him that
her parents wanted to see her, he readily gave her permission to go.

On cross-examination, Fernando Rubio declared that appellant was merely an

acquaintance of his; that it was Naem who went to the lodging house to
arrange for Mia to go home; that complainant's mother never went to his
house; and that it was Chief of Police Eliseo Crespo who fetched appellant
from the lodging house and brought him to the municipal hall.
Shortly before noon of January 26, 1994, Naem again met with appellant at
Edward's Subdivision and informed him that complainant's parents were
willing to talk to him at Naem's house the next day. The following morning, or
on January 27, 1994, appellant was not able to talk to complainant's parents
because they merely sent a child to fetch Mia at Edward's Subdivision and to
tell her that her mother, who was at Naem's house, wanted to see her.
Appellant permitted complainant to go but he told her that within one hour
he was be going to the police station at the municipal hall so that they could
settle everything there.
After an hour, while appellant was already on his way out of Edward's
Subdivision, he was met by Chief of Police Eliseo Crespo who invited him to
the police station. Appellant waited at the police station the whole afternoon
but when complainant, her parents and relatives arrived at around 5:00 P.M.,
he was not given the chance to talk to any one of them. That afternoon of
January 27, 1994, appellant was no longer allowed to leave and he was
detained at the police station after Mia and her parents lodged a complaint
for rape and kidnapping against him.
During his detention, Mia's cousin, Lorna Casantosan, delivered to appellant
on different occasions two letters from complainant dated February 27, 1994
and March 1, 1994, respectively. As Mia's teacher, appellant is familiar with
and was, therefore, able to identify the handwriting in said letters as that of
Mia Taha. After a time, he came to know, through his mother, that an affidavit
of desistance was reportedly executed by complainants. However, he claims
that he never knew and it was never mentioned to him, not until the day he
testified in court, that his mother paid P30,000.00 to Mia's father because,
although he did not dissuade them, neither did he request his mother to talk
to complainants in order to settle the case.
Under cross-examination, appellant denied that he poked a knife at and
raped Mia Taha on January 21, 1994. However, he admitted that he had sex
with Mia at the Sunset Garden but that was already on January 24, 1994.

He also identified the clothes that Mia brought with her when they left her
parents' house on January 22, 1994, but which she left behind at the Rubios'
lodging house after she failed to return on January 27, 1994. The bag of
clothes was brought to him at the provincial jail by Benedicto Rubio.
Appellant likewise declared that he had been detained at the provincial jail
since January 27, 1994 but the warrant for his arrest was issued only on
January 28, 1994; and that he did not submit a counter-affidavit because
according to his former counsel, Atty. Paredes, it was no longer necessary
since the complainants had already executed an affidavit of desistance. He
admits having signed a "Waiver of Right to Preliminary Investigation" in
connection with these cases.
On rebuttal, Lorna Casantosan, the cousin of Mia Taha, denied that she
delivered any letter to appellant when the latter was still detained at the
provincial jail. She admitted, on cross-examination, that she was requested
by Mia Taha to testify for her, although she clarified that she does not have
any quarrel or misunderstanding with appellant.
Mia Taha was again presented on rebuttal and she denied the testimony of
Erna Baradero regarding the incident at the Orchids Room because, according
to her, the truth was that she was at the boarding house of Toto Zapanta on
that date and time. She likewise negated the claim that Erna Baradero
confronted her on January 21, 1994 about her alleged relationship with
appellant contending that she did not see her former teacher on that day.
Similarly, she disclaimed having seen and talked to Filemona Pielago on the
night of January 21, 1994. She vehemently disavowed that she and appellant
were lovers, much less with intimate relations, since there never was a time
that they became sweethearts.
She sought to rebut, likewise through bare denials, the following testimonies
of the defense witnesses: that she told appellant "iwanan mo ang iyong
asawa at tatakas tayo;" that she answered "wala kang pakialam" when Erna
Baradero confronted her about her relationship with appellant; that she was
the one who registered them at Sunset Garden and paid for their bill; that
appellant left her at Sunset Garden to go to Ipil on January 22, 1994; that
Isagani Virey came to their room and stayed there for five minutes, because
the only other person who went there was the room boy who served their
food; that they went to the house of Virey's aunt requesting help for
transportation; and that she was free to roam around or to go out of the
lodging house at Edward's Subdivision.
Mia Taha also rejected as false the testimony of appellant that she went to

see him at Narra, Palawan to have sex with him and claims that the last time
she went to Narra was when she was still in Grade VI; that she ever told him
"I love you, sabik no sabik ako sa iyo" when she allegedly went to Narra; that
she wrote to him, since the letters marked as Exhibits "1" and "2" are not
hers; that she threatened to commit suicide if appellant would leave her
since she never brought a blade with her; and that at Sunset Garden and at
Edward's Subdivison, she was not being guarded by appellant.
However, on cross-examination, complainant identified her signature on her
test paper marked as Exhibit "4" and admitted that the signature thereon is
exactly the same as that appearing on Exhibits "1" and "2". Then,
contradicting her previous disclaimers, she also admitted that the
handwriting on Exhibits "1" and "2" all belong to her.
On sur-rebuttal, Armando Pasion, a provincial guard of the Provincial Jail,
Palawan who volunteered to testify in these cases, identified Lorna
Casantosan as the person who visited appellant in jail on February 27, 1994
at around 4:00 P.M. Since he was on duty at that time, he asked her what she
wanted and she said she would just visit appellant. Pasion then called
appellant and told him he had a visitor. Lorna Casantosan and appellant
talked at the visiting area which is around ten meters away from his post, and
then he saw her hand over to appellant a letter which the latter immediately
read. This witness declared that appellant never requested him to testify.
Another sur-rebuttal witness, Desmond Selga, a jeepney driver, testified that
in the afternoon of January 22, 1994, he was plying his regular route in going
to Brooke's Point and, when he passed by Ipilan, he picked up appellant and
Mia Taha. At that time, there were already several passengers inside his
jeepney. The two got off at the poblacion market. He denied that he brought
them to the Sunset Garden.
On May 20, 1994, the court a quo rendered judgment 5 finding appellant
guilty beyond reasonable doubt of the crimes of rape and kidnapping with
serious illegal detention, and sentencing him to the maximum penalty of
death in both cases. 6 By reason of the nature of the penalty imposed, these
cases were elevated to this Court on automatic review.
The records show that, on the basis of the complaints for rape 7 and
kidnapping with serious illegal detention 8 filed by Mia Taha and Helen Taha,
respectively, the Municipal Trial Court of Brooke's Point issued a
resolution 9 on February 4, 1994 finding the existence of a prima faciecase
against appellant. On February 10, 1994, the spouses Adjeril Taha and Helen
Taha executed an affidavit of desistance withdrawing the charge of
kidnapping with serious illegal detention. 10 However, pursuant to a joint
resolution 11 issued on March 11, 1994 by Prosecutor II Reynaldo R. Guayco
of the Office of the Provincial Prosecutor, two separate informations for rape
and for kidnapping with serious illegal detention were nevertheless filed
against appellant Danny Godoy with no bail recommended in both charges.
Appellant is now before us seeking the reversal of the judgment of the court
below, on the following assignment of errors:
I. The trial court erred in convicting the accused-appellant (of)
the crime of rape despite the fact that the prosecution failed
to prove his guilt beyond reasonable doubt.
II. The trial court erred by failing to adhere to the
doctrine/principle in reviewing the evidence adduced in a

prosecution for the crime of rape as cited in its decision

reiterating the case of People vs. Calixto (193 SCRA 303).
III. The trial court erred in concluding that the accusedappellant had consummated the crime of rape against private
complainant.
IV. The trial court erred by its failure to give any credence to
Exhibits "1" and "2" as evidence of the defense.
V. The trial court erred in convicting the accused-appellant of
the crime of kidnapping with serious illegal detention as the
prosecution failed to prove his guilt beyond reasonable doubt.
VI. The trial court erred in giving full faith and credence to the
testimonies of prosecution witnesses and completely ignoring
the testimonies of the defense witnesses.
VII. The trial court erred in concluding that there was implied
admission of guilt on the part of the accused-appellant in
view of the offer to compromise.
VIII. The trial court erred in ordering that the complainant be
indemnified in the sum of one hundred thousand pesos
(P100,000.00) for each of the alleged crimes committed.
IX. The trial court gravely erred by imposing the death
penalty for each of the crimes charged on the accusedappellant despite the fact that the crimes were allegedly
committed prior to the effectivity of Republic Act No. 7659. 12
A. The Rape Case
A rape charge is a serious matter with pernicious consequences. It exposes
both the accused and the accuser to humiliation, fear and anxieties, not to
mention the stigma of shame that both have to bear for the rest of their
lives. 13 By the very nature of the crime of rape, conviction or acquittal
depends almost entirely on the credibility of the complainant's testimony
because of the fact that usually only the participants can testify as to its
occurrence. 14 This notwithstanding, the basic rule remains that in all
criminal prosecutions without regard to the nature of the defense which the
accused may raise, the burden of proof remains at all times upon the
prosecution to establish his guilt beyond a reasonable doubt. If the accused
raises a sufficient doubt as to any material element, and the prosecution is
then unable to overcome this evidence, the prosecution has failed to carry its
burden of proof of the guilt of the accused beyond a reasonable doubt and
the accused must be acquitted.15
The rationale for the rule is that, confronted by the full panoply of State
authority, the accused is accorded the presumption of innocence to lighten
and even reverse the heavy odds against him. Mere accusation is not enough
to convict him, and neither is the weakness of his defense. The evidence for
the prosecution must be strong per se, strong enough to establish the guilt of
the accused beyond reasonable doubt. 16 In other words, the accused may
be convicted on the basis of the lone uncorroborated testimony of the
offended woman, provided such testimony is clear, positive, convincing and
otherwise consistent with human nature and the normal course of things.
There are three well-known principles that guide an appellate court in

reviewing the evidence presented in a prosecution for the crime of rape.

These are: (1) while rape is a most detestable crime, and ought to be
severely and impartially punished, it must be borne in mind that it is an
accusation easy to be made, hard to be proved, but harder to be defended by
the party accused, though innocent; 17 (2) that in view of the intrinsic nature
of the crime of rape where only two persons are usually involved, the
testimony of the complainant must be scrutinized with extreme
caution; 18 and (3) that the evidence for the prosecution must stand or fall
on its own merits and cannot be allowed to draw strength from the weakness
of the evidence for the defense. 19

witness Filomena Pielago. She affirmed that in the evening of January 21,
1994, she saw both appellant and complainant seated on a bench outside the
boarding house, and that she even advised them to go home because it was
already late and appellant's wife, who was the head teacher of witness
Pielago, was waiting for him at the school building. On rebuttal, complainant
could only deny that she saw Pielago that night. Doctrinally, where the
inculpatory facts and circumstances are capable of two or more explanations
one of which is consistent with the innocence of the accused and the other
consistent with his guilt, then the evidence does not fulfill the test of moral
certainty and is not sufficient to support a conviction. 21

In the case at bar, several circumstances exist which amply demonstrate and
ineluctably convince this Court that there was no rape committed on the
alleged date and place, and that the charge of rape was the contrivance of an
afterthought, rather than a truthful plaint for redress of an actual wrong.

It was further alleged by complainant that after her alleged ravishment, she
put on her panty and then appellant openly accompanied her all the way to
the gate of the house where they eventually parted ways. This is
inconceivable. It is not the natural tendency of a man to remain for long by
the side of the woman he had raped,22 and in public in a highly populated
area at that. Given the stealth that accompanies it and the anxiety to end
further exposure at the scene, the logical post-incident impulse of the felon is
to distance himself from his victim as far and as soon as practicable, to avoid
discovery and apprehension. It is to be expected that one who is guilty of a
crime would want to dissociate himself from the person of his victim, the
scene of the crime, and from all other things and circumstances related to
the offense which could possibly implicate him or give rise to even the
slightest suspicion as to his guilt. Verily, the guilty flee where no man
pursueth.

I. Two principal facts indispensably to be proven beyond reasonable doubt for

conviction of the crime of rape under paragraph (1), Article 335 of the
Revised Penal Code are, first, that the accused had carnal knowledge of the
complainant; and, second, that the same was accomplished through force or
intimidation.
1. The prosecution has palpably failed to prove beyond peradventure of
doubt that appellant had sexual congress with complainant against her will.
Complainant avers that on the night of January 21, 1994, she was sexually
assaulted by appellant in the boarding house of her cousin, Merlelyn
Casantosan. Appellant, on the other hand, denied such a serious imputation
and contends that on said date and time, he merely talked with complainant
outside that house. We find appellant's version more credible and sustained
by the evidence presented and of record.
According to complainant, when she entered the kitchen of the boarding
house, appellant was already inside apparently waiting for her. If so, it is
quite perplexing how appellant could have known that she was going there
on that particular day and at that time, considering that she does not even
live there, unless of course it was appellant's intention to satisfy his lustful
desires on anybody who happened to come along. But then this would be
stretching the imagination too far, aside from the fact that such a generic
intent with an indeterminate victim was never established nor even intimated
by the prosecution.
Moreover, any accord of credit to the complainant's story is precluded by the
implausibility that plagues it as regards the setting of the supposed sexual
assault. 20 It will be noted that the place where the alleged crime was
committed is not an ordinary residence but a boarding house where several
persons live and where people are expected to come and go. The prosecution
did not even bother to elucidate on whether it was the semestral break or
that the boarding house had remained closed for some time, in order that it
could be safely assumed that nobody was expected to arrive at any given
time.
Appellant, on the other hand, testified that on that fateful day, he went to the
boarding house upon the invitation of complainant because the latter
requested him to help her with her monologue for the Miss PNS contest.
However, they were not able to go inside the house because it was locked
and there was no light, so they just sat on a bench outside the house and
talked. This testimony of appellant was substantially corroborated by defense

It is of common knowledge that facts which prove or tend to prove that the
accused was at the scene of the crime are admissible as relevant, on the
theory that such presence can be appreciated as a circumstance tending to
identify the appellant. 23 Consequently, it is not in accord with human
experience for appellant to have let himself be seen with the complainant
immediately after he had allegedly raped her. 24 It thus behooves this Court
to reject the notion that appellant would be so foolhardy as to accompany
complainant up to the gate of the house, considering its strategic
location vis-a-vis complainant's boarding house which is just across the
street, 25 and the PNS schoolbuilding which is only around thirty meters
away. 26
Complainant mentioned in her narration that right after the incident she went
directly to her boarding house where she saw her landlady. Yet, the landlady
was never presented as a witness to corroborate the story of complainant,
despite the fact that the former was the very first person she came in contact
with from the time appellant allegedly left her at the gate of the Casantosan
boarding house after her alleged traumatic ordeal. Even though they
supposedly did not talk, the landlady could at least have testified on
complainant's physical appearance and to attest to the theorized fact that
indeed she saw complainant on said date and hour, possibly with dishevelled
hair, bloody skirt and all.
We are, therefore, justifiedly inclined to believe appellant's version that it was
Mia Taha who invited him to the boarding house to help her with the
monologue she was preparing for the school contest. This is even consonant
with her testimony that appellant fetched her the following day in order to
solicit funds for her candidacy in that same school affair.
In contrast, complainant's professed reason for going to the boarding house
is vague and tenuous. At first, she asserted that she was at the boarding

house talking with a friend and then, later, she said it was her cousin.
Subsequently, she again wavered and said that she was not able to talk to
her cousin. Furthermore, she initially stated that on January 21, 1994 at
around 7:00 P.M., she was at the boarding house conversing with her cousin.
Then in the course of her narration, she gave another version and said that
when she reached the boarding house it was dark and there was nobody
inside.
The apparent ease with which she changed or adjusted her answers in order
to cover up or realign the same with her prior inconsistent statements is
readily apparent from her testimony even on this single episode, thus:
Q Sometime on January 21, 1994, at about
7:00 o'clock in the evening, do you remember
where you were?
A Yes, sir.
Q Where were you?
A I was in the boarding house of Merlylyn
Casantosan, Sir.
xxx xxx xxx
Q Why were you there?
A I was conversing with my friend there, Sir.
COURT:
Q Conversing with whom?
A With my cousin, Your Honor.
Q Your cousin's name?
A Merlylyn Casantosan, Your Honor.
xxx xxx xxx
PROSECUTOR GUAYCO:
Q You said that this Dane or Danny Godoy
raped you, will you please relate to this
Honorable Court how that rape happened?
A On Friday and it was 7:00 o'clock in the
evening.
COURT:
Q Of what date?
A January 21, 1994, Your Honor.
xxx xxx xxx
PROSECUTOR GUAYCO:
Q Then what happened?
A I went to the boarding house of my cousin
Merlylyn Casantosan. I passed (through) the
kitchen and then when I opened the door

somebody grabbed me suddenly.

xxx xxx xxx
Q During that time were there other people
present in that boarding house where you said
Danny Godoy raped you?
A None, Sir.
COURT:
Q So, the house was empty?
A Yes, Your Honor.
Q I thought your cousin was there and you
were conversing?
A When I went there she was not there, Your
Honor. 27 (Corrections
and
emphasis
supplied.)
2. Complainant testified that appellant raped her through the use of force
and intimidation, specifically by holding a knife to her neck. However, the
element of force was not sufficiently established. The physical facts adverted
to by the lower court as corroborative of the prosecution's theory on the use
of force are undoubtedly the medico-legal findings of Dr. Rogelio
Divinagracia. Upon closer scrutiny, however, we find that said findings
neither support nor confirm the charge that rape was so committed through
forcible means by appellant against complainant on January 21, 1994.
The reported hymenal laceration which, according to Dr. Divinagracia, was a
week old and already healed, and the conclusion therefrom that complainant
had sexual intercourse with a man on the date which she alleged, do not
establish the supposed rape since the same findings and conclusion are
likewise consistent with appellant's admission that coitus took place with the
consent of complainant at Sunset Garden on January 24, 1994. 28 Further,
rather than substantiating the prosecution's aforesaid theory and the
supposed date of commission of rape, the finding that there were no evident
signs of extra-genital injuries tends, instead, to lend more credence to
appellant's claim of voluntary coition on a later date and the absence of a
struggle or the lack of employment of physical force. 29 In rape of the nature
alleged in this case, we repeat, the testimony of the complainant must be
corroborated by physical evidence showing use of force. 30
Thus, on the basis of the laceration inflicted, which is superficial at 6 o'clock
position, the aforesaid medico-legal expert opined that it could not be
categorically stated that there was force involved. On further questioning, he
gave a straightforward answer that force was not applied. 31 He also added
that when he examined the patient bodily, he did not see any sign of
bruises. 32 The absence of any sign of physical violence on the complainant's
body is an indication of complainant's consent to the act. 33While the
absence in the medical certificate of external signs of physical injuries on the
victim does not necessarily negate the commission of rape, 34 the instant
case is clearly an exception to this rule since appellant has successfully cast
doubt on the veracity of that charge against him.
Even granting ex gratia argumenti that the medical report and the laceration
corroborated complainant's assertion that there was sexual intercourse, of

course the same cannot be said as to the alleged use of force. It has been
held that such corroborative evidence is not considered sufficient, since proof
of facts constituting one principal element of the crime is not corroborative
proof of facts necessary to constitute another equally important element of
the crime. 35
Complainant testified that she struggled a little but it was not really strong
because she was afraid of appellant. Again assuming that a sexual assault
did take place as she claims, we nevertheless strongly believe that her
supposed fear is more imaginary than real. It is evident that complainant did
not use the manifest resistance expected of a woman defending her honor
and chastity. 36 She failed to make any outcry when appellant allegedly
grabbed her and dragged her inside the house. There is likewise no evidence
on record that she put up a struggle when appellant forced her to lie on the
floor, removed her panty, opened the zipper of his trousers, and inserted his
organ inside her genitals. Neither did she demonstrate that appellant, in
committing the heinous act, subjected her to any force of whatever nature or
form.
Complainant's explanation for her failure to shout or struggle is too
conveniently general and ruefully unconvincing to make this Court believe
that she tenaciously resisted the alleged sexual attack on her by appellant.
And, if ever she did put up any struggle or objected at all to the involuntary
intercourse, such was not enough to show the kind of resistance expected of
a woman defending her virtue and honor. 37 Her failure to do anything while
allegedly being raped renders doubtful her charge of rape, 38 especially
when we consider the actual mise-en-scene in the context of her
asseverations.
There is a rule that the rape victim's panty and blood-stained dress are not
essential, and need not be presented, as they are not indispensable evidence
to prove rape. 39 We incline to the view, however, that this general rule
holds true only if there exist other corroborative evidence sufficiently and
convincingly proving the rape charge beyond reasonable doubt. The rule
should go the other way where, as in the present case, the testimony of
complainant is inherently weak and no other physical evidence has been
presented to bolster the charge of sexual abuse except for the medical report
which, as earlier discussed, even negated the existence of one of the
essential elements of the crime. We cannot, therefore, escape the irresistible
conclusion that the deliberate non-presentation of complainant's bloodstained skirt, if it did exist, should vigorously militate against the
prosecution's cause.
II. The conduct of the outraged woman immediately following the alleged
assault is of the utmost importance as tending to establish the truth or falsity
of the charge. It may well be doubted whether a conviction for the offense of
rape should even be sustained from the uncorroborated testimony of the
woman unless the court is satisfied beyond doubt that her conduct at the
time when the alleged rape was committed and immediately thereafter was
such as might be reasonably expected from her under all the circumstances
of
the
case. 40
Complainant said that on the day following the supposed rape, appellant
went to her parents' house and asked permission from them to allow her to
go with him to solicit funds for her candidacy. Nowhere throughout her entire
testimony did she aver or imply that appellant was armed and that by reason

thereof she was forced to leave with him. In brief, she was neither threatened
nor intimidated by appellant. Her pretense that she was afraid of the
supposed threat previously made by appellant does not inspire belief since
appellant was alone and unarmed on that occasion and there was no showing
of any opportunity for him to make good his threat, even assuming that he
had really voiced any. On the contrary, complainant even admitted that
appellant respectfully asked permission from her parents for her to
accompany him.
Complainant's enigmatic behavior after her alleged ravishment can only be
described as paradoxical: it was so strangely normal as to be abnormal. 41 It
seems odd, if not incredible, that upon seeing the person who had allegedly
raped her only the day before, she did not accuse, revile or denounce him, or
show rage, revulsion, and disgust. 42 Instead, she meekly went with
appellant despite the presence of her parents and the proximity of neighbors
which, if only for such facts, would naturally have deterred appellant from
pursuing any evil design. From her deportment, it does not appear that the
alleged threat made by appellant had instilled any fear in the mind of
complainant. Such a nonchalant, unconcerned attitude is totally at odds with
the demeanor that would naturally be expected of a person who had just
suffered the ultimate invasion of her womanhood. 43
III. Rape is a very emotional word, and the natural human reactions to it are
categorical: admiration and sympathy for the courageous female publicly
seeking retribution for her outrageous violation, and condemnation of the
rapist. However, being interpreters of the law and dispensers of justice,
judges must look at a rape charge without those proclivities, and deal with it
with extreme caution and circumspection. Judges must free themselves of the
natural tendency to be overprotective of every woman decrying her having
been sexually abused, and demanding punishment for the abuser. While they
ought to be cognizant of the anguish and humiliation the rape victim goes
through as she demands justice, judges should equally bear in mind that
their responsibility is to render justice based on the law. 44
The rule, therefore, that this Court generally desists from disturbing the
conclusions of the trial court on the credibility of witnesses 45 will not apply
where the evidence of record fails to support or substantiate the lower court's
findings of fact and conclusions; or where the lower court overlooked certain
facts of substance and value that, if considered, would affect the outcome of
the case; or where the disputed decision is based on a misapprehension of
facts. 46
The trial court here unfortunately relied solely on the lone testimony of
complainant regarding the January 21, 1994 incident. Indeed, it is easy to
allege that one was raped by a man. All that the victim had to testify to was
that appellant poked a knife at her, threatened to kill her if she shouted and
under these threats, undressed her and had sexual intercourse with her. The
question then that confronts the trial court is whether or not complainant's
testimony is credible. 47 The technique in deciphering testimony is not to
solely concentrate on isolated parts of that testimony. The correct meaning of
the testimony can often be ascertained only upon a perusal of the entire
testimony. Everything stated by the witness has to be considered in relation
to what else has been stated. 48
In the case at bar, the challenged decision definitely leaves much to be
desired. The court below made no serious effort to dispassionately or
impartially consider the totality of the evidence for the prosecution in spite of

the teaching in various rulings that in rape cases, the testimony of the
offended party must not be accepted with precipitate credulity. 49 In finding
that the crime of rape was committed, the lower court took into account only
that portion of the testimony of complainant regarding the January 21, 1994
incident and conveniently deleted the rest. Taken singly, there would be
reason to believe that she was indeed raped. But if we are to consider the
other portions of her testimony concerning the events which transpired
thereafter, which unfortunately the courta quo wittingly or unwittingly failed
or declined to appreciate, the actual truth could have been readily exposed.

opened from the inside.

There are easily perceived or discernible defects in complainant's testimony

which inveigh against its being accorded the full credit it was given by the
trial court. Considered independently of any other, the defects might not
suffice to overturn the trial court's judgment of conviction; but assessed and
weighed conjointly, as logic and fairness dictate, they exert a powerful
compulsion towards reversal of said judgment. 50 Thus:

COURT:

1. Complainant said that she was continuously raped by herein appellant at

the Sunset Garden and around three times at Edward's Subdivision. In her
sworn statement she made the same allegations. If this were true, it is
inconceivable how the investigating prosecutor could have overlooked these
facts with their obvious legal implications and, instead, filed an information
charging appellant with only one count of rape. The incredibility of
complainant's representations is further magnified by the fact that even the
trial court did not believe it, as may be inferred from its failure to consider
this aspect of her testimony, unless we were to uncharitably assume that it
was similarly befuddled.

Q Is there no other lock aside from that

doorknob that you held?

2. She claims that appellant always carried a knife, but it was never
explained how she was threatened with the same in such a manner that she
was allegedly always cowed into giving in to his innumerable sexual
demands. We are not unaware that in rape cases, this claim that complainant
now advances appears to be a common testimonial expedient and facesaving subterfuge.

A Yes, Your Honor. 52 (Emphases ours.)

3. According to her, they stayed at Sunset Garden for three days and three
nights and that she never noticed if appellant slept because she never saw
him close his eyes. Yet, when asked if she slept side by side with appellant,
complainant admitted that everytime she woke up, appellant was invariably
in bed beside her. 51
4. She alleged that she could never go out of the room because it was always
locked and it could not be opened from the inside. But, this was refuted by
complainant's own testimony, as follows:
Q And yet the door could be opened by you
from the inside?
A No, Sir, it was locked.
Q Can you describe the lock of that room?
A It's like that of the door where there is a
doorknob.
ATTY. EBOL:
Let it be recorded that the lock is a doorknob
and may I ask that the door be locked and

COURT:
Alright (sic) you go down the witness stand
and find out for yourself if you can open that
door from the inside.
CLERK OF COURT:
Witness holding the doorknob.

The key is made to open if you are outside,

but as you're were (sic) inside you can open
it?
A Yes, sir.

A There was, Your Honor.

Q What is that?
A The one that slides, Your Honor.
Q And that is used when you are already
inside?

5. During their entire stay at the Sunset Garden or even at Edward's

Subdivision, beyond supposedly offering token or futile resistance to the
latter's sexual advances, she made no outcry, no attempt to flee or attract
attention to her plight. 53 In her own declaration, complainant mentioned
that when they checked in at Sunset Garden, she saw the cashier at the
information counter where appellant registered. She did not do anything,
despite the fact that appellant at that time was admittedly not armed. She
likewise stated that a room boy usually went to their room and brought them
food. If indeed she was bent on fleeing from appellant, she could have
grabbed every possible opportunity to escape. Inexplicably, she did not. What
likewise appears puzzling is the prosecution's failure to present these two
people she mentioned and whose testimonies could have bolstered or
corroborated complainant's story.
6. When appellant fetched complainant in the afternoon of January 22, 1994,
they left the house together and walked in going to the highway. In her own
testimony, complainant stated that appellant went ahead of her. It is highly
improbable, if appellant really had evil motives, that he would be that
careless. It is likewise beyond comprehension that appellant was capable of
instilling such fear in complainant that she could not dare take advantage of
the situation, in spite of the laxity of appellant, and run as far away from him
as possible despite all the chances therefor.
7. Helen Taha, the mother of Mia, testified that as a result of the filing of the
rape case, complainant was dropped from school and was not allowed to
graduate. This is absurd. Rather than support and commiserate with the illfated victim of rape, it would appear that the school authorities were

heartless people who turned their backs on her and considered her an
outcast. That would be adding insult to injury. But what is more abstruse yet
significant is that Mia and her parents were never heard to complain about
this apparent injustice. Such complacency cannot but make one think and
conclude that there must necessarily have been a valid justification for the
drastic action taken by the school and the docile submission thereto by the
Taha family.

her. 60 He also observed that they were happy. 61

On the other hand, in evaluating appellant's testimony, the trial court's

decision was replete with sweeping statements and generalizations. It chose
to focus on certain portions of appellant's testimony, declared them to be
preposterous and abnormal, and then hastened to conclude that appellant is
indeed guilty. The court in effect rendered a judgment of conviction based,
not on the strength of the prosecution's evidence, but on the weakness of
that of the defense, which is totally repugnant to the elementary and timehonored rule that conviction should be made on the basis of strong, clear and
compelling evidence of the prosecution. 54

The positive allegations of appellant that he was having an intimate

relationship with complainant, which were substantially corroborated by
several witnesses, were never successfully confuted. The rebuttal testimony
of complainant merely consisted of bare, unexplained denials of the positive,
definite, consistent and detailed assertions of appellant. 64 Mere denials are
self-serving negative evidence. They cannot obtain evidentiary weight
greater than the declarations of credible disinterested witnesses. 65

IV. The main defense proffered by appellant is that he and complainant were
sweethearts. While the "sweetheart theory" does not often gain favor with
this Court, such is not always the case if the hard fact is that the accused and
the supposed victim are, in truth, intimately related except that, as is usual in
most cases, either the relationship is illicit or the victim's parents are against
it. It is not improbable that in some instances, when the relationship is
uncovered, the alleged victim or her parents for that matter would rather
take the risk of instituting a criminal action in the hope that the court would
take the cudgels for them than for the woman to admit to her own acts of
indiscretion. And this, as the records reveal, is precisely what happened to
appellant.
Appellant's claim that he and complainant were lovers is fortified by the
highly credible testimonies of several witnesses for the defense, viz.:
1. Filomena Pielago testified that on the night of January 21, 1994, she saw
appellant and complainant sitting on a bench in front of the house where the
sexual attack allegedly took place, and the couple were talking intimately.
She had warned Mia about the latter's illicit affair with appellant.
2. Fernando Rubio, an acquaintance of appellant and owner of the house at
Edward's Subdivision, testified that he asked Mia why she decided to have an
affair with appellant who is a married man. Mia answered that she really
loves him. 55 He heard her call appellant "Papa". 56 The couple looked
happy and were sweet to each other. 57
3. Benedicto Rubio, the younger brother of Fernando, testified on redirect
examination that he asked Mia if she knew what she getting into and she
answered, "Yes;" then he asked her if she really loved Sir Godoy, and she
again answered in the affirmative. When he was trying to give counsel to
appellant, complainant announced that if appellant left her, she would
commit suicide. 58 He could see that the couple were happy together. 59
4. Isagani Virey, who knew appellant because the Municipal Engineering
Office where he worked was located within the premises of PNS, attested that
he was able to talk to the couple and that when he was advising appellant
that what he was doing is wrong because he is married and Mia is his
student, complainant reacted by saying that no matter what happened she
would not leave Godoy, and that if she went home her father would kill

5. Erna Baradero, a co-teacher of appellant, saw the couple the day before
the alleged rape incident, inside one of the classrooms and they were holding
hands, and she heard Mia tell appellant, "Mahal na mahal kita Sir, iwanan mo
ang iyong asawa at tatakas tayo." 62 She tried to dissuade complainant from
continuing with her relationship with appellant. 63

Besides, appellant recounted certain facts that only he could have supplied.
They were replete with details which could have been known only to him,
thereby lending credence and reliability thereto. 66 His assertions are more
logical, probable and bear the earmarks of truth. This is not to say that the
testimony of appellant should be accorded full credence. His self-interest
must have colored his account, even on the assumption that he could be
trusted to stick to the literal truth. Nonetheless, there is much in his version
that does not strain the limits of credulity. More to the point, there is enough
to raise doubts that do appear to have some basis in reality. 67
Thus, the trial court's hasty pontification that appellant's testimony is
improbable, ridiculous, nonsensical and incredible is highly uncalled for. The
rule of falsus in uno, falsus in omnibus is not mandatory. It is not a positive
rule of law and is not an inflexible one. 68 It does not apply where there is
sufficient corroboration on many grounds of the testimony and the supposed
inconsistencies arise merely from a desire of the witness to exculpate himself
although not completely. 69
Complainant's denial that she and appellant were lovers is belied by the
evidence presented by the defense, the most telling of which are her two
handwritten letters, Exhibits "1" and "2", which she sent to the latter while he
was detained at the provincial jail. For analysis and emphasis, said letters are
herein quoted in full:
27 Feb. 94
Dane,
Kumusta kana? Kong ako hito hindi na makatiis sa sakit.
Sir, sumulat ako sa inyo dahil gusto kong malaman mo ang
situation ko. Sir, kong mahal mo ako gagawa kang paraan na
mailayo ako dito sa bahay. nalaman ng nanay at tatay ko na
delayed ang mens ko ng one week. pinapainom nila ako ng
pampalaglag pero ayaw ko. pagnalaman nila na hindi ko
ininom ang gamot sinasaktan nila ako.
Sir, kong maari ay huwag ng maabutan ng Martes. dahil
naabutan nila akong maglayas sana ako. kaya ngayon hindi
ako makalabas ng bahay kong wala akong kasama, kong
gaano sila kahigpit noon doble pa ngayon. ang mga gamit ko
ngayon ay wala sa lalagyan ko. tinago nila hindi ko makita,
ang narito lang ay ang bihisan kong luma. Sir kong

manghiram ka kaya ng motor na gagamitin sa pagkuha sa

akin. Sa lunes ng gabi manonood kami Ng Veta eksakto alas
9:00 ay dapat dito ka sa lugar na may Veta. tanungin mo lang
kay Lorna kong saan ang Veta nila Navoor Lozot. Mag busina
ka lang ng tatlo bilang senyas na lalabas na ako at huwag
kang tatapat ng bahay dahil nandoon ang kuya ko. kong ano
ang disisyon mo maari bang magsulat ka at ipahatid kay
Lorna.
alang-alang sa bata. Baka makainon ako ng gamot dahil baka
pagkain ko hahaluan nila.
Please sir . . .
(S
gd
.)
Mi
a
Ta
ha
70
3/
1/
94
Dane,
I'm sorry kong problem ang ipinadala o sinulat sa iyo sa halip
sa kasiyahan. oo nag usap na tayo nagawa ko lang naman
ang sumulat sa iyo dahil naiinis na ako sa pagmumukha ng
mga magulang kong suwapang. Ang paglayas ko sana ay
dahil sa narinig ko. Sir narinig ko na magreklamo si nanay kay
Arquero yong superentende sa Palawan high tapos ang sabi
ay magreklamo itong si Arquero sa DECS para matanggal ka
sa pagtuturo yan ang dahilan kong bakit naisipan kong
lumayas ng wala sa oras at wala akong tensyon na masama
laban so iyo. hindi ko sinabi sa kanila na delayed ako ay sinabi
sa iyo ni Eden na sa harap niya mismo binigyan ako ng gamot
samantalang noong Sabado ng gabi lang nalaman dahil gusto
kong masuka. Oo aaminin ko nagkasala ako sa iyo,
pinabilanggo kita dahil nagpanig ako sa mga magulang ko
nadala nila ako sa sulsul nila. hindi ko naipaglaban ang dapat
kong ipaglaban ngunit kong iniisip mong minahal lang kita
dahil sa may kailangan lang ako sa iyo nagkakamali ka. alam
ng Diyos na hindi ganon ang hangarin ko sa iyo. higit pa sa
binilanggo ang kalagayan ko kong alam mo. kinukunsinsiya,
nagtitiis na saktan at pagsasakripisyo ng damdamin ko na
gusto kang makita at yakapin ka pero ano ang magagawa ko
kong ang paglabas ko ng bahay ay hindi ako makalabas ng
mag isa may guardiya pa. tanungin mo si Lorna kong ano
ginagawa nilang pagbantay sa akin para akong puganti. hindi
ito ayon sa kagustuhan ng mga magulang ko sarili kong plano
ito. Magtitiis pa ba akong hindi makakain maghapon tubig
lang ang laman ng tiyan, kong may masama akong hangarin
sa iyo.

Oo, magtiis ako para maipakita kong mahal rin kita. March 2
darating ako sa bahay na sinasabi mo. hindi ko matiyak kong
anong oras dahil kukuha pa ako ng tiyempo na wala rito ang
tatay ko. Alam mo bang pati ang kapatid kong si Rowena ay
inuutusan akong lumayas dahil naawa no siya sa situation ko.
siya lang ang kakampi ko rito sa bahay malaki ang pag-asa
kong makalabas ako ng bahay sa tulong niya.
Lo
ve
yo
u
(S
gd
.)
Mi
a
Ta
ha
71
There is absolutely nothing left to the imagination. The letters eloquently
speak for themselves. It was complainant's handwriting which spilled the
beans, so to speak. Aside from appellant, two other defense witnesses
identified the handwriting on the letters as belonging to Mia Taha. They are
Filomena Pielago and Erna Baradero who were admittedly the former
teachers of complainant and highly familiar with her handwriting. The
greatest blunder committed by the trial court was in ignoring the testimonies
of these qualified witnesses and refusing to give any probative value to these
two vital pieces of evidence, on the dubious and lame pretext that no
handwriting expert was presented to analyze and evaluate the same.
Well-entrenched by now is the rule that resort to questioned document
examiners, more familiarly called handwriting experts, is not mandatory.
Handwriting experts, while probably useful, are not indispensable in
examining or comparing handwriting. 72 This is so since under Section 22,
Rule 132 of the Rules of Court, the handwriting of a person may be proved by
any witness who believes it to be the handwriting of such person, because he
has seen the person write, or has seen writing purporting to be his upon
which the witness has acted or been charged, and has thus acquired
knowledge of the handwriting of such person. The said section further
provides that evidence respecting the handwriting may also be given by a
comparison, made by the witness or the court, with writings admitted or
treated as genuine by the party against whom the evidence is offered or
proved to be genuine to the satisfaction of the judge. 73
The defense witnesses were able to identify complainant's handwriting on the
basis of the examination papers submitted to them by her in their respective
subjects. This Court has likewise carefully examined and compared the
handwriting on the letters with the standard writing appearing on the test
papers as specimens for comparison and, contrary to the observations and
conclusions of the lower court, we are convinced beyond doubt that they
were written by one and the same person. More importantly, complainant
herself categorically admitted that the handwriting on the questioned letters
belongs to her.

It is, therefore, extremely disconcerting, to say the least, why the trial court
again chose to turn a deaf ear to this conclusive portion of complainant's
testimony:

signature?
A Yes, sir.

ATTY. EBOL:

Q That is your signature?

Q Did I get you right on rebuttal that Mrs. Erna

Baradero and Filomena Pielago were your
teachers?

A Yes, sir.

A Yes, sir.

A Yes, sir.

Q And they have been your teachers for

several months before this incident of January
21, 1994, am I not correct?
A That is true, sir.
Q And you have (sic) during these past
months that they have been your teachers
you took examinations in their classes in their
particular subject(s)?
A Yes, sir.
Q And some of those test papers are in the
possession of your teachers, am I correct?
A Yes, sir.
Q I will show you Exhibit "4" previously
marked as Exhibit "4", it appears to be your
test paper and with your signature and the
alphabet appears in this exhibit appears to be
that of Mia Taha, please examine this and tell
the Honorable Court if that is your test paper?
A Yes, sir.
Q That signature Mia Taha I understand is also
your signature?
A Yes, sir.
Q I will show you Exhibit "4-A", will you please
examine this Exhibit "4-A" and tell this
Honorable Court if you are familiar with that.
A What subject is that?
Q I am just asking you whether you are
familiar with that.
A I cannot remember if I have this kind of
subject, sir.
Q How about this signature Mia Taha, are you
not familiar with that signature?
A That is min(e), sir.
Q I will show you Exhibit "4-C" which appears
to be that in Math, are you familiar with that

Q In fact, these letters in alphabet here are in

your own handwriting?

xxx xxx xxx

Q You will
signature?

deny

this

Exhibit

"1"

your

xxx xxx xxx

Q You will deny that this is your handwriting?
A That is my handwriting, sir.
Q Also Exhibit "2"?
A Yes, sir. 74
While rebuttal witness Lorna Casantosan insisted that she never delivered
any letter of complainant to herein appellant, the witness presented by the
defense on sur-rebuttal, Armando Pasion, who was the guard on duty at the
provincial jail at that time, testified of his own accord because he knew that
what Casantosan said was a blatant lie. Appellant never talked to Amando
Pasion nor requested him to testify for the defense, as related by the witness
himself. Hence, there exists no reason whatsoever to disbelieve the
testimony of witness Pasion to the effect that Lorna Casantosan actually went
to visit appellant in jail and in truth handed to him what turned out to be the
letters marked as Exhibits "1" and "2" for the defense.
V. The prosecution insists that the offer of compromise made by appellant is
deemed to be an admission of guilt. This inference does not arise in the
instant case. In criminal cases, an offer of compromise is generally admissible
as evidence against the party making it. It is a legal maxim, which assuredly
constitutes one of the bases of the right to penalize, that in the matter of
public crimes which directly affect the public interest, no compromise
whatever may be entered into as regards the penal action. It has long been
held, however, that in such cases the accused is permitted to show that the
offer was not made under a consciousness of guilt, but merely to avoid the
inconvenience of imprisonment or for some other reason which would justify
a claim by the accused that the offer to compromise was not in truth an
admission of his guilt or an attempt to avoid the legal consequences which
would ordinarily ensue therefrom. 75
A primary consideration here is that the evidence for the defense
overwhelmingly proves appellant's innocence of the offense charged. Further,
the supposed offer of marriage did not come from appellant but was actually
suggested by a certain Naem, who is an imam or Muslim leader and who
likewise informed appellant that he could be converted into a Muslim so he
could marry complainant. As a matter of fact, when said offer was first made
to appellant, he declined because of the fact that he was already married. On
top of these, appellant did not know, not until the trial proper, that his mother

actually paid P30,000.00 for the settlement of these cases. Complainant's

own mother, Helen Taha, testified that present during the negotiations were
herself, her husband, Mia, and appellant's mother. Appellant himself was
never present in any of said meetings. 76
It has been held that where the accused was not present at the time the offer
for monetary consideration was made, such offer of compromise would not
save the day for the prosecution. 77 In another case, this Court ruled that no
implied admission can be drawn from the efforts to arrive at a settlement
outside the court, where the accused did not take part in any of the
negotiations and the effort to settle the case was in accordance with the
established tribal customs, that is, Muslim practices and traditions, in an
effort to prevent further deterioration of the relations between the parties. 78
VI. Generally, an affidavit of desistance by the complainant is not looked
upon with favor. It may, however, create serious doubts as to the liability of
appellant, especially if it corroborates appellant's explanation about the filing
of criminal charges. 79
In the cases at bar, the letters written by complainant to appellant are very
revealing. Most probably written out of desperation and exasperation with the
way she was being treated by her parents, complainant threw all caution to
the winds when she wrote: "Oo, aaminin ko nagkasala ako sa iyo,
pinabilanggo kita dahil nagpanig ako sa mga magulang ko nadala nila ako sa
sulsul nila, hindi ko naipaglaban ang dapat kong ipaglaban," obviously
referring to her ineptitude and impotence in helping appellant out of his
predicament. It could, therefore, be safely presumed that the rape charge
was merely an offshoot of the discovery by her parents of the intimate
relationship between her and appellant. In order to avoid retribution from her
parents, together with the moral pressure exerted upon her by her mother,
she was forced to concoct her account of the alleged rape.
The Court takes judicial cognizance of the fact that in rural areas in the
Philippines, young ladies are strictly required to act with circumspection and
prudence. Great caution is observed so that their reputations shall remain
untainted. Any breath of scandal which brings dishonor to their character
humiliates their entire families. 80 It could precisely be that complainant's
mother wanted to save face in the community where everybody knows
everybody else, and in an effort to conceal her daughter's indiscretion and
escape the wagging tongues of their small rural community, she had to
weave the scenario of this rape drama.
Although the trial court did observe that a mother would not sacrifice her
daughter to tell a story of defloration, that is not always the case as this
Court has noted a long time ago. The books disclose too many instances of
false charges of rape. 81 While this Court has, in numerous cases, affirmed
the judgments of conviction rendered by trial courts in rape charges,
especially where the offended parties were very young and presumptively
had no ill motives to concoct a story just to secure indictments for a crime as
grave as rape, the Court has likewise reversed judgments of conviction and
acquitted the accused when there are strong indications pointing to the
possibility that the rape charges were merely motivated by some factors
except the truth as to their commission. 82 This is a case in point. The Court,
therefore, cannot abdicate its duty to declare that the prosecution has failed
to meet the exacting test of moral certainty and proof of guilt of appellant
beyond reasonable doubt.

This is not to say that the Court approves of the conduct of appellant.
Indisputably, he took advantage of complainant's feelings for him and
breached his vow of fidelity to his wife. As her teacher, he should have acted
as adviser and counselor to complainant and helped her develop in manners
and virtue instead of corrupting her.83 Hence, even as he is freed from
physical detention in a prison as an instrument of human justice, he remains
in the spiritual confinement of his conscience as a measure of divine
retribution. Additionally, these ruminations do not rule out such other legal
options against him as may be available in the arsenal of statutory law.
VII. The trial court, in holding for conviction, relied on the presumptio
hominis that a young Filipina will not charge a person with rape if it is not
true. In the process, however, it totally disregarded the more paramount
constitutional presumption that an accused is deemed innocent until proven
otherwise.
It frequently happens that in a particular case two or more presumptions are
involved. Sometimes the presumptions conflict, one tending to demonstrate
the guilt of the accused and the other his innocence. In such case, it is
necessary to examine the basis for each presumption and determine what
logical or social basis exists for each presumption, and then determine which
should be regarded as the more important and entitled to prevail over the
other. It must, however, be remembered that the existence of a presumption
indicating guilt does not in itself destroy the presumption against innocence
unless the inculpating presumption, together with all of the evidence, or the
lack of any evidence or explanation, is sufficient to overcome the
presumption of innocence by proving the defendant's guilt beyond a
reasonable doubt. Until the defendant's guilt is shown in this manner, the
presumption of innocence continues. 84
The rationale for the presumption of guilt in rape cases has been explained in
this wise:
In rape cases especially, much credence is accorded the
testimony of the complaining witness, on the theory that she
will not choose to accuse her attacker at all and subject
herself to the stigma and indignities her accusation will entail
unless she is telling the truth. The rape victim who decides to
speak up exposes herself as a woman whose virtue has been
not only violated but also irreparably sullied. In the eyes of a
narrow-minded society, she becomes a cheapened woman,
never mind that she did not submit to her humiliation and has
in fact denounced her assailant. At the trial, she will be the
object of lascivious curiosity. People will want to be titillated
by the intimate details of her violation. She will squirm
through her testimony as she describes how her honor was
defiled, relating every embarrassing movement of the
intrusion upon the most private parts of her body. Most
frequently, the defense will argue that she was not forced to
submit but freely conjoined in the sexual act. Her motives will
be impugned. Her chastity will be challenged and maligned.
Whatever the outcome of the case, she will remain a tainted
woman, a pariah because her purity has been lost, albeit
through no fault of hers. This is why many a rape victim
chooses instead to keep quiet, suppressing her helpless
indignation rather than denouncing her attacker. This is also

the reason why, if a woman decides instead to come out

openly
and
point
to
her
assailant,
courts
are prone to believe that she is telling the truth regardless of
its consequences. . . . 85
The presumption of innocence, on the other hand, is founded upon the first
principles of justice, and is not a mere form but a substantial part of the law.
It is not overcome by mere suspicion or conjecture; a probability that the
defendant committed the crime; nor by the fact that he had the opportunity
to do so. 86 Its purpose is to balance the scales in what would otherwise be
an uneven contest between the lone individual pitted against the People and
all the resources at their command. Its inexorable mandate is that, for all the
authority and influence of the prosecution, the accused must be acquitted
and set free if his guilt cannot be proved beyond the whisper of a
doubt. 87 This is in consonance with the rule that conflicts in evidence must
be resolved upon the theory of innocence rather than upon a theory of guilt
when it is possible to do so. 88
On the basis of the foregoing doctrinal tenets and principles, and in
conjunction with the overwhelming evidence in favor of herein appellant, we
do not encounter any difficulty in concluding that the constitutional
presumption on the innocence of an accused must prevail in this particular
indictment.
B. The Kidnapping/Illegal Detention Case
It is basic that for kidnapping to exist, there must be indubitable proof that
the actual intent of the malefactor was to deprive the offended party of her
liberty. 89 In the present charge for that crime, such intent has not at all
been established by the prosecution. Prescinding from the fact that the Taha
spouses desisted from pursuing this charge which they themselves instituted,
several grave and irreconcilable inconsistencies bedevil the prosecution's
evidence thereon and cast serious doubts on the guilt of appellant, as
hereunder explained:
To recall, complainant testified that appellant by himself went to fetch her at
her parents' house the day after the alleged rape incident. In her own words,
appellant courteously asked her parents to permit her to help him solicit
contributions for her candidacy. When they left the house, appellant walked
ahead of her, obviously with her parents and their neighbors witnessing their
departure. It is difficult to comprehend how one could deduce from these
normal and innocuous arrangement any felonious intent of appellant to
deprive complainant of her liberty. One will look in vain for a case where a
kidnapping was committed under such inauspicious circumstances as
described by complainant.
Appellant declared that when they left the house of the Taha family,
complainant was bringing with her a plastic bag which later turned out to
contain her clothes. This bag was left behind by Mia at Edward's Subdivision,
as hereinbefore noted, and was later delivered to appellant by Benedicto
Rubio. Again, we cannot conceive of a ridiculous situation where the kidnap
victim was first allowed to prepare and pack her clothes, as if she was merely
leaving for a pleasant sojourn with the criminal, all these with the knowledge
and consent of her parents who passively looked on without comment.
Complainant alleged that appellant always kept her locked inside the room
which they occupied, whether at Sunset Garden or at Edward's Subdivision,

and that she could not unlock the door from the inside. We must, however,
recall that when she was asked on cross-examination about the kind of lock
that was used, she pointed to the doorknob of the courtroom. The court then
ordered that the door of the courtroom be locked and then asked
complainant to open it from the inside. She was easily able to do so and, in
fact, she admitted that the two locks in the room at Sunset Garden could also
be opened from the inside in the same manner. This demonstrably
undeniable fact was never assailed by the prosecution. It also failed to rebut
the testimony of Fernando Rubio that the room which was occupied by the
couple at Edward's Subdivision could not even be locked because the lock
thereof was broken.
When the couple transferred to Edward's Subdivision, they walked along the
national highway in broad daylight. Complainant, therefore, had more than
ample opportunity to seek the help of other people and free herself from
appellant if it were true that she was forcibly kidnapped and abused by the
latter. 90 In fact, several opportunities to do so had presented themselves
from the time they left complainant's home and during their extended stay in
the hotel and in the lodging house.
According to appellant, he went to see the parents of complainant the day
after they went to Sunset Garden to inform them that Mia spent the night in
said place. This was neither denied nor impugned by Helen Taha, her
husband, or any other person. On the other hand, the allegation of Helen
Taha that she made a report to the police about her missing daughter was
not supported by any corroborative evidence, such as the police blotter, nor
was the police officer to whom she allegedly reported the incident ever
identified or presented in court.
We agree with appellant's contention that the prosecution failed to prove any
motive on his part for the commission of the crime charged. In one case, this
Court rejected the kidnapping charge where there was not the slightest hint
of a motive for the crime. 91 It is true that, as a rule, the motive of the
accused in a criminal case is immaterial and, not being an element of a
crime, it does not have to be proved. 92 Where, however, the evidence is
weak, without any motive being disclosed by the evidence, the guilt of the
accused becomes open to a reasonable doubt and, hence, an acquittal is in
order. 93 Nowhere in the testimony of either the complainant or her mother
can any ill motive of a criminal nature be reasonably drawn. What actually
transpired was an elopement or a lovers' tryst, immoral though it may be.
As a closing note, we are bewildered by the trial court's refusal to admit in
evidence the bag of clothes belonging to complainant which was presented
and duly identified by the defense, on its announced supposition that the
clothes could have easily been bought from a department store. Such
preposterous reasoning founded on a mere surmise or speculation, aside
from the fact that on rebuttal the prosecution did not even seek to elicit an
explanation or clarification from complainant about said clothes, strengthens
and reinforces our impression of an apparently whimsical exercise of
discretion by the court below. Matters which could have been easily verified
were thus cavalierly dismissed and supplanted by a conjecture, and on such
inferential basis a conclusion was then drawn by said court.
We accordingly deem it necessary to reiterate an early and highly regarded
disquisition of this Court against the practice of excluding evidence in the
erroneous manner adopted by the trial court:

It has been observed that justice is most effectively and

expeditiously administered where trivial objections to the
admission of proof are received with least favor. The practice
of excluding evidence on doubtful objections to its materiality
or technical objections to the form of the questions should be
avoided. In a case of any intricacy it is impossible for a judge
of first instance, in the early stages of the development of the
proof, to know with any certainty whether the testimony is
relevant or not; and where there is no indication of bad faith
on the part of the attorney offering the evidence, the court
may as a rule safely accept the testimony upon the statement
of the attorney that the proof offered will be connected later.
Moreover, it must be remembered that in the heat of the
battle over which he presides, a judge of first instance may
possibly fall into error in judging the relevancy of proof where
a fair and logical connection is in fact shown. When such a
mistake is made and the proof is erroneously ruled out, the
Supreme Court, upon appeal, often finds itself embarrassed
and possibly unable to correct the effects of the error without
returning the case for a new trial, a step which this court is
always very loath to take. On the other hand, the admission
of proof in a court of first instance, even if the question as to
its form, materiality, or relevancy is doubtful, can never result
in much harm to either litigant, because the trial judge is
supposed to know the law and it is its duty, upon final
consideration of the case, to distinguish the relevant and
material from the irrelevant and immaterial. If this course is
followed and the cause is prosecuted to the Supreme Court
upon appeal, this court then has all the materials before it
necessary to make a correct judgment. 94
At any rate, despite that procedural lapse, we find in the records of these
cases sufficient and substantial evidence which warrant and demand the
acquittal of appellant. Apropos thereto, we take this opportunity to repeat
this age-old observation and experience of mankind on the penological and
societal effect of capital punishment: If it is justified, it serves as a deterrent;
if injudiciously imposed, it generates resentment.
Finally, we are constrained to reiterate here that Republic Act No. 7659 which
reimposed the death penalty on certain heinous crimes took effect on
December 31, 1993, that is, fifteen days after its publication in the December
16, 1993 issues of the Manila Bulletin, Philippine Star, Malaya and Philippine
Times Journal, 95 and not on January 1, 1994 as is sometimes misinterpreted.
WHEREFORE, the judgment appealed from is hereby REVERSED and SET
ASIDE, and accused-appellant Danny Godoy is hereby ACQUITTED of the
crimes of rape and kidnapping with serious illegal detention charged in
Criminal Cases Nos. 11640 and 11641 of the Regional Trial Court for Palawan
and Puerto Princesa City, Branch 49. It is hereby ORDERED that he be
released forthwith, unless he is otherwise detained for any other valid cause.
SO ORDERED.

EOPLE

OF

THE

PHILIPPINES, plaintiff-appellee,

vs. GENER

DE

GUZMAN y SICO, accused-appellant.

DECISION
DAVIDE, JR., J.:
On 1 April 1992, complainant Gilda Ambray filed with the Municipal Trial
Court (MTC) of Bacoor, Cavite, a complaint[1] charging accused Gener de
Guzman y Sico with the crime of rape allegedly committed at 9:00 p.m. of 31
March 1992 in Meadow Wood, Executive Village, Barangay Panapaan,
Bacoor, Cavite. On even date, Gener de Guzman was arrested and detained
at the Municipal Jail of Bacoor, Cavite, but was released on 14 April
1992 upon the filing and approval of his bail bond.[2]
Gener de Guzman did not submit any counter-affidavit as required in
the subpoena[3] issued by the MTC on 14 April 1992. Finding a prima
facie case against him on the basis of the evidence for the prosecution,
the MTC forwarded the record of the case to the Office of the Provincial
Prosecutor for the filing of the necessary information with the appropriate
court.[4]
On 14 July 1992, the Office of the Provincial Prosecutor of Cavite filed with
the Regional Trial Court (RTC) of Bacoor, Cavite, Branch 19, an
information[5] charging accused Gener de Guzman with the crime of rape,
allegedly committed as follows:
That on or about the 31st day of March 1992 at around 9:00 oclock in the
evening at Meadow Wood Subd., Executive Village, Barangay Panapaan,
Municipality of Bacoor, Province of Cavite, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd
design, by means of force, violence and intimidation, did, then and there,
wilfully, unlawfully and feloniously, have carnal knowledge of one Gilda B.
Ambray, against her will and consent, to the damage and prejudice of said
Gilda B. Ambray.
Contrary to law.
The case was docketed as Criminal Case No. B-92-216.
Upon arraignment on 10 August 1992, accused Gener de Guzman entered
a plea of not guilty.[6] Trial on the merits thereafter ensued and the
prosecution moved for the cancellation of the bail bond.
On 9 December 1992, after complainant Gilda Ambray, Police Officer Efren
Bautista, and Dr. Valentin Bernales of the National Bureau of Investigation
(NBI), completed their testimony as witnesses for the prosecution, the trial
court cancelled the bail bond of Gener de Guzman on the ground that the
evidence of his guilt was strong.[7] He was re-arrested, and on 22 January
1993, his motion for reconsideration[8] of the order cancelling his bail bond
was denied by the trial court for lack of merit as he was charged with a
capital offense punishable by reclusion perpetua and the evidence of his guilt

was strong.[9]
Two other witnesses were presented by the prosecution, namely:
Resurreccion Talub Quiocho, a kumadre of the accused, and Aquilino Flores
Ambray, the husband of the complainant.
The testimonies of the witnesses for the prosecution established the
following facts:
Homeward bound on 31 March 1992 from Anson Department Store where she
worked as a sales clerk, complainant Gilda Ambray, the 32-year old wife of
Aquilino Flores Ambray and a mother of two children, was at the gate of
Meadow Wood Subdivision, Panapaan, Bacoor, Cavite, at about 8:45 p.m.
waiting for a tricycle ride toward her residence. She waited for about ten
minutes. When she noticed the accused, then wearing army pants, sitting at
the guardhouse, she approached him and asked him some questions. He
answered in a stammering manner. The complainant recognized the accused
very well because it was summertime and the gate of the subdivision was
well-lit.[10]
After Gilda started to walk, the accused mounted his tricycle, followed her
and offered her a ride, to which she agreed. While on board the tricycle, Gilda
noticed that the accused took a different route. She got scared but managed
not to show it. The accused would once in a while stop the tricycle and tell
her that it was not in good condition.[11] When they reached Phase II of the
same subdivision near an unfinished house, the accused stopped and told
Gilda to push the tricycle. She alighted from the tricycle and paid him P5.00,
which he did not accept. Gilda then walked away, but after she had taken
about ten steps, the accused embraced her from behind, covered her mouth
and held her neck tightly. She tried to shout but the accused threatened
her. The accused then dragged her to a vacant lot ten meters away from the
unfinished house.She attempted to shout again, but he threatened to kill her
if she made noise. She fought to free herself from his hold, but the accused
pushed and slapped her. He tried to raise her T-shirt while holding her neck
tightly. He shouted and commanded her to raise her T-shirt, which she
obligingly followed because of fear. He removed her bra and kissed her
breast. She shouted Saklolo! Tulungan ninyo ako, but the accused covered
her mouth and again held her neck that she could hardly breathe. He held
her hand tightly and positioned himself on top of her. He unzipped her pants
and pulled it down her knees. She struggled to liberate herself, but to no
avail. The accused then tried to insert his penis into her, but failed to do so
because she struggled and fought back, then slapped him while covering her
vagina with her hand. When she tried to stand, he pushed her down and, in
the process, was able to completely pull down her pants and underwear. She
pleaded to him to have mercy on her and told him that she had two children.
He warned her: Huwag kang sisigaw, papatayin kita. The accused again tried
to insert his penis into her, but she prevented him from doing so. The
accused took her hand and let her hold his penis to make it stiff. As Gilda
became too weak to struggle against the accuseds sexual advances, the
accused was able to finally consummate his dastardly desire. He then pulled
out his penis and fingered her private organ for a short while. The accused
then warned Gilda not to tell anybody, otherwise, he would kill her and all
members of her family.[12] He told her that she was his third victim but the
two did not complain. He then dressed up. Gilda picked up her pants and
underwear and hurriedly ran toward her home, without looking back.[13]

When Gilda arrived home, she told her mother and her husband, Aquilino
Flores Ambray, that she was raped by the accused. Aquilino got angry and
wanted to retaliate but was prevailed upon not to by Gildas mother.[14]
At almost midnight of 31 March 1992, Gilda and her mother reported the
incident to one Tony Antonio, the President of the Homeowners Association
and President of the National Press Club. Antonio radioed the Bacoor Police
Station to send an investigator. PO3 Efren Bautista and Sgt. Saguisame
responded to the alarm immediately. Upon their arrival at the house of
Antonio, PO3 Bautista saw Gilda with her mother. Gilda, who was crying,
related to PO3 Bautista that she was raped and described to him her
assailant as a tricycle driver, tall, strong, with curly hair and in army cut.
[15] Gilda also gave PO3 Bautista a vivid description of the accuseds
tricycle, viz., blue in color with the name Dimple at the back.[16] The
policemen left and went to the house of the accused. PO3 Bautista invited the
accused to go with him because the Mayor wanted to talk to him. The
accused, together with P03 Bautista, went to the residence of Antonio. When
the accused entered the house of Antonio, Gilda Ambray cried hysterically
while pointing to the accused as her rapist. The accused was then brought to
the municipal jail.[17]
Gilda Ambray was medically examined at the Las Pias Hospital and issued
a medical certificate.[18] She then proceeded to the NBI for a medico-legal
examination. Dr.
Valentin
Bernales,
a
medico-legal
officer
of
the NBI, conducted the examination on Gilda. His findings, contained in his
medico-legal report,[19] were as follows:
I. Physical Injuries:
Abrasion, brownish; lips, upper, left side, mucosal, 2.0 x 1.5 cm.; elbow, right,
postero-lateral aspect, 2.0 x 1.5 cm. and postero-medial aspect, multi-linear,
with brown scab formation, 3.0 x 1.0 cm. Contusion, reddish; back, right,
scapular area, 7.0 x 5 .0 cm. and left, 15.0 x 8.0 cm. Contused abrasion,
reddish black, scapular area, left, medial aspect, 3.0 x 2.0 cm.
II. Genital Examination:
Pubic hair, fully grown, moderate. Labia majora, gaping. Labia minora,
coaptated. Fourchette, lax. Vestibulae, pinkish, smooth. Hymen, reduced to
carunculae myrtiformis. Vaginal orifice, admits a tube, 3.0 cm. in diameter.
Vaginal wall, lax. Rugosities, obliterated.
III. Conclusions:
1. The above physical injuries were noted on the body of the subject at the
time of the examination.
2. Medical evidence indicative of recent sexual intercourse with man on or
about the alleged date of examination.
IV. Remarks:
Laboratory Report S-92-94[20] shows positive result for the presence of
human spermatozoa.
Dr. Bernales opined that the physical injuries sustained by Gilda Ambray
resulted from force applied to her,[21] while the presence of human
spermatozoa in Gildas genitals indicated recent sexual intercourse.[22]

On 3 April 1992, Bebey and Linda de Guzman, the parents of the accused,
asked the help of Resurreccion Talub Quiocho, the accuseds kumadre, to beg
for Gildas forgiveness for the accuseds sake. The following day, Resurreccion
accompanied the accuseds parents, wife, children and sister-in-law to Gildas
house.[23] Gilda met them, but to their plea for forgiveness, she told them
that should not be tolerated.[24]
Gilda further testified that she suffered moral damages, had to resign from
her job due to shame, and had spent P28,500.00 for attorneys fees.[25]
Gener de Guzman interposed the defense of alibi and presented Alfredo
Fernandez and Teotimo Camagong as his witnesses.
According to Gener de Guzman, on 31 March 1992 at around 9:00 p.m., he
was about to go home and was at the corner of Meadow Wood Subdivision
coming from Justineville Subdivision. On his way home on his tricycle, he saw
Gilda Ambray, who flagged him down and boarded his tricycle. After traveling
about half a kilometer, his tricycle malfunctioned. He told her that she better
walk home because her house was already near. He pushed his tricycle
home, and on his way, one Alfredo Fernandez approached him and inquired
what was wrong with his tricycle. Alfredo helped him push the tricycle
towards his (accuseds) home, and upon arrival thereat, he told Alfredo not to
leave at once. At around 9:10 p.m., they started to drink liquor until 11:00
p.m., and after their drinking spree, he cleaned their mess and slept. Then at
around 12:50 a.m. of 1 April 1992, PO3 Efren Bautista fetched and apprised
him that he was accused of rape by a certain Gilda Ambray. Thereafter, an
investigation was conducted and he was brought to the Bacoor Police Station.
Alfredo L. Fernandez, 37 years old, jobless, and a resident of Justineville
Subdivision, corroborated Geners story about the malfunctioning tricycle and
the drinking session.[26]
Teotimo Camagong testified that he was present when the accused was
investigated at the residence of Tony Antonio and that the complainant did
not pinpoint and identify the accused as her alleged molester.[27]
In its Decision[28] dated 30 June 1994 and promulgated on 25 July 1994,
the trial court found the accused guilty beyond reasonable doubt of the crime
of rape as charged, and rendered judgment as follows:
WHEREFORE, premises considered herein accused GENER SICO DE GUZMAN
is hereby found GUILTY beyond reasonable doubt of the crime of rape
punishable by Art. 335 of the Revised Penal Code. He should suffer the prison
term of reclusion perpetua and indemnify herein private complainant Gilda
Ambray the following: actual damages representing her lost monthly salary
when she resigned from her office due to shame for being a rape victim, in
the sum of P30,000.00, moral damages in the sum of P30,000.00, exemplary
damages ofP10,000.00, litigation expenses of P5,000.00, and attorneys fee[s]
including appearance fees for the private prosecutor in the sum
of P28,500.00.
It gave full gave weight to the testimony of Gilda Ambray because
[w]ithout doubt, the complainant had endured the rigors of recalling her

harrowing ordeal and had vividly, credibly and candidly portrayed in detail
how she was raped by the accused.[29]
As to whether sexual intercourse was consummated against the will or
consent of the offended party, the trial court said:
No less than NBI Medico Legal Officer Dr. Valentin Bernales had corroborated
the stance of herein private complainant that she was raped by the accused.
The victim had sustained contusions and abrasions at her body that indicated
that she struggled against the sexual advances of the accused. As a result of
the doctors examination on the victim, he confirmed the occurrence of a
recent sexual intercourse and presence in her private part of human
spermatozoa as denoted in his Medico Legal Report (Exh. F) and Laboratory
Report (Exh. D).[30]
Likewise it ruled that since the accused was drunk, he was more aggressive
and sexually capable.[31] Finally, it considered as evidence of the accuseds
guilt the plea of his parents, wife and relatives for forgiveness and
compromise.[32]
The accused seasonably appealed from the trial courts judgment of
conviction, and in urging us to acquit him, interposes the following
assignment of errors in his Appellants Brief:
1. THE COURT ERRED IN FINDING THAT ACCUSED HAS INDUBITABLY
EMPLOYED FORCE AND INTIMIDATION IN THE RAPE OF THE VICTIM.
2. THE COURT ERRED IN FINDING THAT ACCUSED WAS POSITIVELY
IDENTIFIED BY THE VICTIM.
3. THE COURT ERRED IN STRESSING THAT THE ACCUSED WAS DRUNK AT
THE TIME OF THE COMMISSION OF RAPE.
In the Brief for the Appellee, the Office of the Solicitor General disagrees
with the accused and prays that we affirm in toto the appealed decision.
The first and second assigned errors may be taken up together. The upshot
of the accuseds stance in these alleged errors is that he was not positively
identified and that neither force nor intimidation was proven. As to the latter
he cites these facts: (a) Gildas assailant had three acts of sexual intercourse
with her; (b) the physical examination showed that she suffered injuries on
the dorsal portion only, and none was found on her neck; (c) her personal
belongings -- bra, pants, T-shirt and underwear -- were completely intact; and
(d) no signs of physical violence were discernible on both the persons of the
accused and Gilda Ambray.
Rape is essentially an offense of secrecy, not generally attempted except
in dark or deserted and secluded places away from prying eyes, and the
crime usually commences solely upon the word of the offended woman
herself and conviction invariably turns upon her credibility, as the Peoples
single witness of the actual occurrence.[33]

In the review of rape cases, therefore, this Court is guided by the following
principles: (1) an accusation for rape can be made with facility: it is difficult to
prove but more difficult for the person accused, though innocent, to disprove
it; (2) in view of the intrinsic nature of the crime of rape where two persons
are usually involved, the testimony of the complainant must be scrutinized
with extreme caution; and (3) the evidence for the prosecution must stand or
fall on its on merits, and cannot be allowed to draw strength from the
weakness of the evidence for the defense.[34]
The resolution then of the first two assigned errors and the determination
of the guilt of the accused depend primarily on the credibility of the
complainant Gilda Ambray, since only she and the accused witnessed the
incident when it happened. Her testimony alone, if credible, would render the
accuseds conviction inevitable.

1.

A meticulous assessment of Gildas testimony demonstrates beyond

doubt the truthfulness of her story, which she narrated in a
categorical,
straightforward
and
candid
manner. Further
strengthening her credibility in recounting her ordeal at the hands of
the accused was her conduct immediately after the sexual
assault. She ran home without looking back, and upon her arrival she
reported the rape to her husband and her mother at
once. Immediately thereafter, she reported it to Tony Antonio, the
President of the Homeowners Association and President of the
National Press Club, who then sought police assistance. When the
policemen arrived at Antonios residence in response to the latters
call, Gilda narrated the rape to the policemen and gave them the
description of the assailant. When the policemen brought the accused
to the residence of Antonio, Gilda forthwith pointed to the accused as
the person who raped her. Gilda voluntarily submitted herself to a
medical examination at the Las Pias Hospital and then to an
examination of her private parts by Dr. Bernales of the NBI. The
following day she submitted herself to an investigation[35] by
the PNP of Bacoor, Cavite, and filed on the same day a complaint for
rape against the accused with the MTC of Bacoor, Cavite.

All the foregoing acts of Gilda were done within twenty-four hours after the
commission of the crime. The quickness and spontaneity of these deeds
manifested the natural reactions of a virtuous woman who had just
undergone sexual molestation against herself,[36] and evinced nothing more
than her instant resolve to denounce the beast who criminally abused and
ravished her, and to protect her honor. Moreover, she rejected the plea for
forgiveness sought by the accuseds parents, wife, and children, then suffered
the travails of a public trial which necessarily exposed her to humiliation and
embarrassment by unraveling the details of the rape and enduring a crossexamination which sought to discredit her.
What Gilda endured could only come from one whose obsession was to
bring to justice the person who had abused her and vindicate her honor, even
if such vindication would never erase from her memory that excruciatingly

painful chapter in her life which left her psychologically and emotionally
scarred forever. This Court has repeatedly held that no complainant would
admit that she has been raped, make public the offense, allow the
examination of her private parts, undergo the troubles and humiliation of
public trial and endure the ordeal of testifying to all its gory details if she had
not in fact been raped.[37]
We likewise agree with the trial court that the accused used force and
intimidation upon Gilda.
Another established rule in rape cases is that the force need not be
irresistible; all that is necessary is that the force used by the accused is
sufficient to consummate his evil purpose, or that it was successfully used. It
need not be so great or of such character that it could not be repelled.
[38] Intimidation, on the other hand, must be viewed in light of the victims
perception and judgment at the time of the commission of the crime and not
by any hard and fast rule; it is enough that it produces fear -- fear that if the
victim does not yield to the bestial demands of the accused, something
would happen to her at that moment, or even thereafter as when she is
threatened with death if she would report the incident.[39]
In this case, the accused embraced Gilda from behind, held her neck
tightly, and covered her mouth. As she struggled to free herself, she
sustained her injuries. Dr. Bernales confirmed the use of force, and according
to him, the abrasions and contusions on Gildas body were due to force
applied on her. Moreover, the accused also threatened Gilda with death if she
would not yield to his bestial desires. The threat certainly constituted
intimidation.
The accuseds contention that it was highly incredible that there was force
or intimidation since the assailant committed three acts of sexual intercourse
with Gilda in three hours, deserves scant consideration. In the first place,
Gilda explained in her re-direct examination that the three hours mentioned
in her cross-examination referred to the time which elapsed from the moment
she was at the gate of Meadow Wood Subdivision and until she reported the
incident to Tony Antonio.[40] The principal object of re-direct examination is
to prevent injustice to the witness and the party who has called him by
affording an opportunity to the witness to explain the testimony given on
cross-examination, and to explain any apparent contradiction or
inconsistency in his statements, an opportunity which is ordinarily afforded to
him during cross-examination. The re-direct examination serves the purpose
of completing the answer of a witness, or of adding a new matter which has
been omitted, or of correcting a possible misinterpretation of testimony.
[41] In the second place, on direct examination, Gilda categorically declared
that the accused tried to thrice insert his penis into her vagina. He failed in
the first and second attempts because she struggled, but succeeded on the
third because she was already weak. While it may be true that on crossexamination she testified that she was raped once, yet on re-direct
examination she said that she was raped three times, no inconsistency at all
may be deduced therefrom. There was merely confusion as to the legal
qualifications of the three separate acts, i.e., Gildas answers were
conclusions of law. A witness is not permitted to testify as to a conclusion of
law, among which, legal responsibility is one of the most conspicuous. A

witness, no matter how skillful, is not to be asked or permitted to testify as to

whether or not a party is responsible to the law. Law in the sense here used
embraces whatever conclusions belonging properly to the court.[42]
What is clear to us is that there were, at least, two acts of attempted rape
and one consummated rape, committed in light of the testimony of Gilda. The
information, however, charged the accused with only one act of rape; hence,
consistent with the constitutional right of the accused to be informed of the
nature and cause of the accusation against him,[43] he cannot be held liable
for more than what he was charged. There can only be one conviction for
rape if the information charges only one offense, even if the evidence shows
three separate acts of sexual intercourse.[44]
Neither are we persuaded by the claim that Gilda was not able to
positively identify the accused. He was familiar to Gilda one or two weeks
before the incident because she saw him driving a tricycle and had, in fact,
been once a passenger of his. She saw him clearly at the guardhouse before
the incident because the guardhouse was well-lit; she was his passenger that
evening until he stopped his tricycle near the unfinished house; and she had
ample opportunity to see and recognize him during the assault. Then, Gilda
did not hesitate to point to and identify the accused as her rapist when the
latter was brought by the policemen to the house of Tony Antonio.
The accuseds defense of alibi, which is the weakest of all defenses for it is
easy to concoct and fabricate, cannot prevail over his positive identification
by Gilda.[45]
Moreover, any scintilla of doubt both as to the identification of the accused
and as to his guilt was dissolved by the overtures of his parents, wife,
children and sister-in-law on pleading for forgiveness from Gilda. The accused
did not disown their acts, which were testified to by his kumadre,
Resurreccion Talub Quiocho, and Gilda herself. He chose not to deny their
testimony. Finally, despite the unequivocal pronouncement by the trial court
that his guilt was strongly established by the acts of his parents, wife and
relatives, who had gone to the house of the victim to ask her forgiveness and
to seek a compromise, the accused dared not assign that finding and
conclusion as an error and his Appellants Brief is conspicuously silent
thereon. Indubitably then, the accused was a party to the decision to seek for
forgiveness, or had prior knowledge of the plan to seek for it and consented
to pursue it, or confirmed and ratified the act of his parents, wife, children
and sister-in-law. A plea for forgiveness may be considered as analogous to
an attempt to compromise. In criminal cases, except those involving quasioffense (criminal negligence) or those allowed by law to be compromised, an
offer of compromise by the accused may be received in evidence as an
implied admission of guilt.[46] No one would ask for forgiveness unless he
had committed some wrong, for to forgive means to absolve, to pardon, to
cease to feel resentment against on account of wrong committed; give up
claim to requital from or retribution upon (an offender).[47] In People vs.
Calimquim,[48] we stated:
The fact that appellants mother sought forgiveness for her son from Corazons
father is an indication of guilt. (See People vs. Olmedillo, L-42660, August 30,
1982, 116 SCRA 193).

The accused may be correct in the third assigned error because no

testimony of a witness established that the accused was in a state of
drunkenness when he sexually assaulted Gilda.The trial court may have
formed its conclusion that the accused was drunk from his testimony that he
and Alfredo Fernandez were drinking liquor in his house from 9:00 to 11:00
p.m. of 31 March 1992. In any event, that erroneous conclusion is innocuous.
We do not then hesitate to conclude that the accused, having had carnal
knowledge of complainant Gilda Ambray through the use of force and
intimidation, committed the crime of rape as defined and penalized in Article
335 of the Revised Penal Code, the prescribed penalty being reclusion
perpetua.
The damages awarded by the trial court stand modification. No damage for
loss of income due to Gildas resignation from her employment should have
been awarded, the resignation being unnecessary. Conformably however with
the current jurisprudence, she is entitled to indemnity of P50,000.00. For her
shame, as well as mental anguish, fright, serious anxiety, besmirched
reputation, moral shock and social humiliation which rape necessarily brings
to the offended party,[49] she is entitled to recover moral damages under
Article 2219 in relation to Article 2217 of the Civil Code. However, since no
aggravating circumstance had been proved, exemplary damages may not be
awarded. In Article 2230 of the Civil Code, such damages may be awarded in
criminal cases when the crime was committed with one or more aggravating
circumstances.
WHEREFORE, the instant appeal is DISMISSED and the challenged
decision of 30 June 1994 of Branch 19 of the Regional Trial Court of Bacoor,
Cavite, in Criminal Case No. B-92-216 is AFFIRMED, subject to the
modification on the civil liabilities, and as so modified, the awards
of P30,000.00 as actual damages for loss of monthly salary and P10,000.00
as exemplary damages are deleted, and accused-appellant Gener de Guzman
y Sico is further ordered to pay the complainant Gilda Ambray the sum
of P50,000.00 as indemnity. The awards for moral damages, litigation
expenses and attorneys fees stand.
Costs against the accused-appellant.
SO ORDERED.

EN
[G.R.

BANC
No.

1284.

November

10,

1905.

THE CITY OF MANILA, Plaintiff-Appellee, v. JACINTO DEL ROSARIO, DefendantAppellant.

Francisco

Rodriguez,

for Appellant.

Modesto

Reyes,

for Appellee.

SYLLABUS
1. ACTION; DISMISSAL; ERROR. The defendant is entitled to have the case
dismissed where the plaintiff fails to establish the allegations in the
complaint; and an order overruling such motion is erroneous.
2. REALTY; POSSESSION; EVIDENCE. Where one derives title to real estate
from another, the declaration act, or omission of the latter to the property is
evidence against the former only when made while the latter holds the title.
(Sec.
278,
Code
of
Civil
Procedure.)
3. ID.; ID.; ID.; REGISTRATION; PRESUMPTION OF OWNERSHIP. A possessory
information recorded in the property register is prima facie evidence of the
fact that the person who instituted the proceedings holds the property as
owner; and the presumption, under article 448 of the Civil Code, is that his
title is good unless the contrary is shown.

DECISION

MAPA, J. :

This is an action to recover the possession of the two lots describe in the
complaint, located in Calles Clavel and Barcelona, district of Tondo, at present
occupied
by
the
defendant.
The court below entered judgment in favor of the plaintiff and against the
defendant for possession and damages in the sum of $2,500, United States
currency,
and
costs.
At the trial, after the plaintiff rested, the defendant moved for the dismissal of
the case upon the ground that the plaintiff had failed to establish the
allegations in the complaint. This motion was overruled by the court, to which
ruling the defendant duly excepted. The question thus raised puts in issue
the trial courts finding that the plaintiff was entitled to the ownership and
possession of the land in question. We accordingly hold that this point is
impliedly involved in the third and fourth assignments of error.
Plaintiff introduced both documentary and oral evidence. The latter consisted
of the testimony of John R. Lorenzo del Rosario, and Modesto Reyes, the city
attorney. The first witness testified that he did not know of his own
knowledge if the land in question belonged to the city (p. 11 of the bill of
exceptions). The next witness testified that the land included in Calles Clavel
and Barcelona was formerly part of Plaza Divisoria, which belonged to the
Central Government (not the city), and that he did not know to whom it now
belongs (pp. 12 and 13 of the bill of exceptions)). It must be borne in mind
that this witness referred to the land included in Calles Clavel and Barcelona,
and not to the lots described in the complaint. These lots abut upon the
streets referred to, but do not form a part of either. According to the
complaint,
they
are
building
lots.

The third witness, Juan Villegas, testified that the land in question was
formerly included in the Gran Divisoria, and that all the land included in it
belonged to the city. In this particular his testimony is at variance with that of
the precediing witness, who testified that the land belonged to the Central
Government. Villegas testimony was merely hearsay. It consisted of what he
had learned from some of the oldest residents in that section of the city. His
testimony was introduced by the plaintiff apparently for the purpose of
proving that the city was generally considered the owner of the land, drawing
from this fact the presumption of actual ownership under paragraph 11,
section 334, of the Code of Civil Procedure. Such testimony, however, does
not constitute the "common reputation" referred to in the section mentioned.
"common reputation," as used in that section, is equivalent to universal
reputation. The testimony of this witness is not sufficient to establish the
presumption
referred
to.
Furthermore, this witness stated that the land in Calle Azcarraga had been
partitioned between the municipality and the Central Government, share and
share alike, and that the Central Government (not the city) retained Calles
Gabriel de Rivera and Barcelona, which are precisely the streets on which the
property
abuts
(bill
of
exceptions,
pp.
15
and
16).
The fourth witness (Sotera Roco) testified merely that Lorenzo del Rosario
had paid 100 pesos to her brother Cipriano Roco for the purpose of instituting
a possessory information as to the property abutting on Calle Clavel. It
appears that Lorenzo del Rosario acquired the land from Cipriano Roco and
sold it to his brother Jacinto del Rosario, the defendant in this case.
Notwithstanding this, and assuming that the hearsay testimony of Sotera
Roco is admissible, we do not see how it can be inferred from her testimony
that
the
plaintiff
is
the
real
owner
of
the
property.
The witness Modesto Reyes and Lorenzo del Rosario said nothing as to the
ownership of the land. They simply testified as to the authenticity of some of
the
documentary
evidence
introduced
by
the
plaintiff.
Of these documents the most important of all is the petition presented by
Lorenzo del Rosario to the "mayor of the city of manila" on the 26th of
September, 1891, and the letter written by him on the 9th of October, 1901,
to the Municipal Board of Manila. Lorenzo del Rosario in his testimony,
admitted the authenticity of both documents which contain an offer to the
municipality of Manila to purchase the land on Calle Clavel. Lorenzo del
Rosario admitted also that he signed the first document under the
misapprehension that the land belonged to the city, but that he had been
subsequently informed by some of the city officials that the land did not
belong to the municipality, but to Cipriano Roco y Vera. He stated that he
signed the second document because the President of the Municipal Board,
Seor Herrera, advised him to do so in order to avoid litigation with the city.
His testimony in this respect was not contradicted. We accordingly hold that
the provisions of section 346 of the Code of Civil Procedure are applicable to
the case at bar in so far as they declare that an offer of compromise is not
admissible
in
evidence.
Again, Lorenzo del Rosario signed the first document before he acquired from
Cipriano Roco y Vera the ownership of the land referred to therein, the
second document being signed after he had transferred the land to the

defendant Jacinto del Rosario, who took possession of the same and had it
registered, as the plaintiff admits (par. 2 of the complaint), on the 23d of
February, 1893. If this is so, whatever statements Lorenzo del Rosario might
have made in the documents mentioned, they are not binding upon the
defendant, because, under section 278 of the Code of Civil Procedure, "where
one derives title to real property from another, the declaration, act, or
omission of the latter, in relation to the property, is evidence against the
former only when made while the latter holds the title."cralaw virtua1aw
library

remanded to the court of its origin for action in accordance herewith. The
plaintiff shall pay the costs of the Court of First Instance. No special order is
made as to the costs on appeal. After the expiration of twenty days from the
date hereof let judgment be entered in conformity herewith. So ordered.

The plaintiff also introduced in evidence a map of the city of Manila. This map
is not before us. It is sufficient to say, in order to show that it has no value as
evidence, that the reliability of the map was not proven at the trial. The only
witness examined with regard to it was the city attorney. He was unable to
say who made it or who caused it to be made, or when it was made. He said
only that he believed the map had been drawn in the month of July, 1880, or
prior to May, 1893. Neither this nor his statement that the map was found
among the archives of the city of Manila is of itself sufficient to show that the
map is authentic. No one appears to certify as to its correctness.

Republic
SUPREME
Manila

The map identified by the witness John R. Wilson was introduced by the
plaintiff for the sole purpose of showing the location of the land in question. It
has, therefore, no value in establishing the right of possession claimed by the
plaintiff.
On the other hand, the two public instruments executed on March 7, 1900,
between the defendant and Telesfora Apostol y Perea, also introduced in
evidence by the plaintiff, show that the defendant was in possession of the
land under a good title and with the status of owner of the land. In the first
instrument if is stated so many words that the defendant is the owner in fee
simple of the land, he having repurchased it from Liberio de Aurteneche y
Menchacatorre, whose title had been recorded in the property register.
From the foregoing it appears that the evidence introduced by the plaintiff
does not prove its claim of title to the land in question. Neither the testimony
of the witnesses presented by the plaintiff nor the documentary evidence
introduced show that the city of Manila is the owner of the land, or that it has
a right to its possession as claimed in the complaint. Some of the documents
introduced, as well as the two public instruments referred to as having been
executed in 1900, tended to support the contentions of the defendant rather
than those of the plaintiff. Furthermore, the plaintiff itself admits in the
complaint that the defendants possession of the land in Calle Barcelona was
recorded since March, 1901, and his possession of that in Calle Clavel since
February, 1893. This shows that the defendant had been in the adverse
possession of the land. According to article 448 of the Civil Code he must be
presumed to hold under a just title, unless the contrary is shown.
In view of the foregoing, we hold that the defendant had a perfect right to ask
for the dismissal of the case on the ground that the plaintiff had failed to
establish the allegations in the complaint, and the court erred in overruling
his
motion
to
dismiss.
The order of the trial court overruling the motion of the defendant to dismiss
and the judgment appealed from are hereby reversed. Let the case be

Torres,

Johnson,

Carson

and

Willard, JJ.,

concur.

Arellano, C.J., did not sit in this case.

of

the

Philippines
COURT

SECOND DIVISION
G.R. No. 77029 August 30, 1990
BIENVENIDO, ESTELITA, MACARIO, LUIS, ADELAIDE, ENRIQUITA and
CLAUDIO,
all
surnamed,
GEVERO,petitioners,
vs.
INTERMEDIATE APPELLATE COURT and DEL MONTE DEVELOPMENT
CORPORATION, respondents.
Carlito B. Somido for petitioners.
Benjamin N. Tabios for private respondent.

PARAS, J.:
This is a petition for review on certiorari of the March 20, 1988 decision 1 of
the then Intermediate Appellate Court (now Court of Appeals) in AC-GR CV
No. 69264, entitled Del Monte Development Corporation vs. Enrique Ababa,
et al., etc. affirming the decision 2 of the then Court of First Instance (now
Regional Trial Court) of Misamis Oriental declaring the plaintiff corporation as
the true and absolute owner of that portion of Lot 476 of the Cagayan
Cadastre, particularly Lot No. 2476-D of the subdivision plan (LRC) Psd-80450,
containing an area of Seven Thousand Eight Hundred Seventy Eight (7,878)
square meters more or less.
As found by the Appellate Court, the facts are as follows:
The parcel of land under litigation is Lot No. 2476 of the
Subdivision Plan Psd-37365 containing an area of 20,119
square meters and situated at Gusa, Cagayan de Oro City.
Said lot was acquired by purchase from the late Luis Lancero
on September 15, 1964 as per Deed of Absolute Sale
executed in favor of plaintiff and by virtue of which Transfer
Certificate of Title No. 4320 was issued to plaintiff (DELCOR
for brevity). Luis Lancero, in turn acquired the same parcel
from Ricardo Gevero on February 5, 1952 per deed of sale
executed by Ricardo Gevero which was duly annotated as
entry No. 1128 at the back of Original Certificate of Title No.
7610 covering the mother lot identified as Lot No. 2476 in the
names of Teodorica Babangha 1/2 share and her children:
Maria; Restituto, Elena, Ricardo, Eustaquio and Ursula, all

surnamed surnamed Gevero, 1/2 undivided share of the

whole area containing 48,122 square meters.

Lot Nos. 2476-H, 2476-I and 2476 G to defendant

spouses Enrique Abada and Lilia Alvarez Abada.

Teodorica Babangha died long before World War II and was

survived by her six children aforementioned. The heirs of
Teodorica Babangha on October 17,1966 executed an ExtraJudicial Settlement and Partition of the estate of Teodorica
Babangha, consisting of two lots, among them was lot 2476.
By virtue of the extra-judicial settlement and partition
executed by the said heirs of Teodorica Babangha, Lot 2476-A
to Lot 2476-I, inclusive, under subdivision plan (LRC) Psd80450 duly approved by the Land Registration Commission,
Lot 2476-D, among others, was adjudicated to Ricardo Gevero
who was then alive at the time of extra-judicial settlement
and partition in 1966. Plaintiff (private respondent herein)
filed an action with the CFI (now RTC) of Misamis Oriental to
quiet title and/or annul the partition made by the heirs of
Teodorica Babangha insofar as the same prejudices the land
which it acquired a portion of lot 2476.

No adjudication can be made with respect to Lot No. 2476-A

considering that the said lot is the subject of a civil case
between the Heirs of Maria Gevero on one hand and the
spouses Daniel Borkingkito and Ursula Gevero on the other
hand, which case is now pending appeal before the Court of
Appeals. No pronouncement as to costs,

Plaintiff now seeks to quiet title and/or annul the partition

made by the heirs of Teodorica Babangha insofar as the same
prejudices the land which it acquired, a portion of Lot 2476.
Plaintiff proved that before purchasing Lot 2476-A it first
investigated and checked the title of Luis Lancero and found
the same to be intact in the office of the Register of Deeds of
Cagayan de Oro City. The same with the subdivision plan
(Exh. "B"), the corresponding technical description (Exh. "P")
and the Deed of Sale executed by Ricardo Gevero all of
which were found to be unquestionable. By reason of all
these, plaintiff claims to have bought the land in good faith
and for value, occupying the land since the sale and taking
over from Lancero's possession until May 1969, when the
defendants Abadas forcibly entered the property. (Rollo, p.
23)
After trial the court a quo on July 18, 1977 rendered judgment, the dispositive
portion of which reads as follows:
WHEREFORE, premises considered, judgment is hereby
rendered declaring the plaintiff corporation as the true and
absolute owner of that portion of Lot No. 2476 of the Cagayan
Cadastre, particularly Lot No. 2476-D of the subdivision plan
(LRC) Psd-80450, containing an area of SEVEN THOUSAND
EIGHT HUNDRED SEVENTY EIGHT (7,878) square meters,
more or less. The other portions of Lot No. 2476 are hereby
adjudicated as follows:
Lot No. 2476 B to the heirs of Elena Gevero;
Lot No. 2476 C to the heirs of Restituto Gevero;
Lot No. 2476 E to the defendant spouses Enrique C. Torres
and Francisca Aquino;
Lot No. 2476 F to the defendant spouses Eduard Rumohr
and Emilia Merida Rumohf ;

SO ORDERED. (Decision, Record on Appeal, p. 203; Rollo, pp.

21-22)
From said decision, defendant heirs of Ricardo Gevero (petitioners herein)
appealed to the IAC (now Court of Appeals) which subsequently, on March 20,
1986, affirmed the decision appealed from.
Petitioners, on March 31, 1986, filed a motion for reconsideration (Rollo, p.
28) but was denied on April 21, 1986.
Hence, the present petition.
This petition is devoid of merit.
Basically, the issues to be resolved in the instant case are: 1) whether
or not the deed of sale executed by Ricardo Gevero to Luis Lancero is
valid; 2) in the affirmative, whether or not the 1/2 share of interest of
Teodorica Babangha in one of the litigated lots, lot no. 2476 under
OCT No. 7610 is included in the deed of sale; and 3) whether or not
the private respondents' action is barred by laches.
Petitioners maintain that the deed of sale is entirely invalid citing alleged
flaws thereto, such as that: 1) the signature of Ricardo was forged without his
knowledge of such fact; 2) Lancero had recognized the fatal defect of the
1952 deed of sale when he signed the document in 1968 entitled "Settlement
to Avoid the Litigation"; 3) Ricardo's children remained in the property
notwithstanding the sale to Lancero; 4) the designated Lot No. is 2470
instead of the correct number being Lot No. 2476; 5) the deed of sale
included the share of Eustaquio Gevero without his authority; 6) T.C.T. No.
1183 of Lancero segregated the area of 20,119 square meters from the
bigger area (OCT No. 7616) without the consent of the other co-owners; 7)
Lancero caused the 1952 Subdivision survey without the consent of the
Geveros' to bring about the segregation of the 20,119 square meters lot from
the mother lot 2476 which brought about the issuance of his title T-1183 and
to DELCOR's title T4320, both of which were illegally issued; and 8) the area
sold as per document is 20,649 square meters whereas the segregated area
covered by TCT No. T-1183 of Lancero turned out to be 20,119 square meters
(Petitioners Memorandum, pp. 62-78).
As to petitioners' claim that the signature of Ricardo in the 1952 deed of sale
in favor of Lancero was forged without Ricardo's knowledge of such fact
(Rollo, p. 71) it will be observed that the deed of sale in question was
executed with all the legal formalities of a public document. The 1952 deed
was duly acknowledged by both parties before the notary public, yet
petitioners did not bother to rebut the legal presumption of the regularity of
the notarized document (Dy v. Sacay, 165 SCRA 473 [1988]); Nuguid v. C.A.,
G.R. No. 77423, March 13, 1989). In fact it has long been settled that a public
document executed and attested through the intervention of the notary

public is evidence of the facts in clear, unequivocal manner therein

expressed. It has the presumption of regularity and to contradict all these,
evidence must be clear, convincing and more than merely preponderant
(Rebuleda v. I.A.C., 155 SCRA 520-521 [1987]). Forgery cannot be presumed,
it must be proven (Siasat v. IAC, No. 67889, October 10, 1985). Likewise,
petitioners allegation of absence of consideration of the deed was not
substantiated. Under Art. 1354 of the Civil Code, consideration is presumed
unless the contrary is proven.
As to petitioners' contention that Lancero had recognized the fatal defect of
the 1952 deed when he signed the document in 1968 entitled "Settlement to
Avoid Litigation" (Rollo, p. 71), it is a basic rule of evidence that the right of a
party cannot be prejudiced by an act, declaration, or omission of another
(Sec. 28. Rule 130, Rules of Court). This particular rule is embodied in the
maxim "res inter alios acta alteri nocere non debet." Under Section 31, Rule
130, Rules of Court "where one derives title to property from another, the act,
declaration, or omission of the latter, while holding the title, in relation to the
property is evidence against the former." It is however stressed that the
admission of the former owner of a property must have been made while he
was the owner thereof in order that such admission may be binding upon the
present owner (City of Manila v. del Rosario, 5 Phil. 227 [1905]; Medel v.
Avecilla, 15 Phil. 465 [1910]). Hence, Lanceros' declaration or acts of
executing the 1968 document have no binding effect on DELCOR, the
ownership of the land having passed to DELCOR in 1964.
Petitioners' claim that they remained in the property, notwithstanding the
alleged sale by Ricardo to Lancero (Rollo, p. 71) involves a question of fact
already raised and passed upon by both the trial and appellate courts. Said
the Court of Appeals:
Contrary to the allegations of the appellants, the trial court
found that Luis Lancero had taken possession of the land
upon proper investigation by plaintiff the latter learned that it
was indeed Luis Lancero who was the owner and possessor of
Lot 2476 D. . . . (Decision, C.A., p. 6).
As a finding of fact, it is binding upon this Court (De Gola-Sison v. Manalo, 8
SCRA 595 [1963]; Gaduco vs. C.A., 14 SCRA 282 [1965]; Ramos v. Pepsi-Cola,
19 SCRA 289 [1967]; Tan v. C.A., 20 SCRA 54 [1967]; Ramirez Tel. Co. v. Bank
of America, 33 SCRA 737 [1970]; Lucero v. Loot, 25 SCRA 687 [1968];
Guerrero v. C.A., 142 SCRA 130 [1986]).
Suffice it to say that the other flaws claimed by the petitioners which
allegedly invalidated the 1952 deed of sale have not been raised before the
trial court nor before the appellate court. It is settled jurisprudence that an
issue which was neither averred in the complaint nor raised during the trial in
the court below cannot be raised for the first time on appeal as it would be
offensive to the basic rules of fair play, justice and due process. (Matienzo v.
Servidad, 107 SCRA 276 [1981]; Dela Santa v. C.A., 140 SCRA 44 [1985];
Dihiansan v. C.A., 157 SCRA 434 [1987]; Anchuelo v. IAC, 147 SCRA 434
[1987]; Dulos Realty and Development Corporation v. C.A., 157 SCRA [1988];
Kamos v. IAC, G.R. No. 78282, July 5, 1989).
Petitioners aver that the 1/2 share of interest of Teodorica (mother of Ricardo)
in Lot 2476 under OCT No. 7610 was not included in the deed of sale as it
was intended to limit solely to Ricardos' proportionate share out of the
undivided 1/2 of the area pertaining to the six (6) brothers and sisters listed

in the Title and that the Deed did not include the share of Ricardo, as
inheritance from Teodorica, because the Deed did not recite that she was
deceased at the time it was executed (Rollo, pp. 67-68).
The hereditary share in a decedents' estate is transmitted or vested
immediately from the moment of the death of the "causante" or predecessor
in interest (Civil Code of the Philippines, Art. 777), and there is no legal bar to
a successor (with requisite contracting capacity) disposing of his hereditary
share immediately after such death, even if the actual extent of such share is
not determined until the subsequent liquidation of the estate (De Borja v.
Vda. de Borja, 46 SCRA 577 [1972]).
Teodorica Babangha died long before World War II, hence, the rights to the
succession were transmitted from the moment of her death. It is therefore
incorrect to state that it was only in 1966, the date of extrajudicial partition,
when Ricardo received his share in the lot as inheritance from his mother
Teodorica. Thus, when Ricardo sold his share over lot 2476 that share which
he inherited from Teodorica was also included unless expressly excluded in
the deed of sale.
Petitioners contend that Ricardo's share from Teodorica was excluded in the
sale considering that a paragraph of the aforementioned deed refers merely
to the shares of Ricardo and Eustaquio (Rollo, p. 67-68).
It is well settled that laws and contracts shall be so construed as to
harmonize and give effect to the different provisions thereof (Reparations
Commission v. Northern Lines, Inc., 34 SCRA 203 [1970]), to ascertain the
meaning of the provisions of a contract, its entirety must be taken into
account (Ruiz v. Sheriff of Manila, 34 SCRA 83 [1970]). The interpretation
insisted upon by the petitioners, by citing only one paragraph of the deed of
sale, would not only create contradictions but also, render meaningless and
set at naught the entire provisions thereof.
Petitioners claim that DELCOR's action is barred by laches considering that
the petitioners have remained in the actual, open, uninterrupted and adverse
possession thereof until at present (Rollo, p. 17).
An instrument notarized by a notary public as in the case at bar is a public
instrument (Eacnio v. Baens, 5 Phil. 742). The execution of a public
instrument is equivalent to the delivery of the thing (Art. 1498, 1st Par., Civil
Code) and is deemed legal delivery. Hence, its execution was considered a
sufficient delivery of the property (Buencamino v. Viceo, 13 Phil. 97; [1906];
Puato v. Mendoza, 64 Phil. 457 [1937]; Vda. de Sarmiento v. Lesaca, 108 Phil.
900 [1960]; Phil. Suburban Development Corp. v. Auditor Gen., 63 SCRA 397
(1975]).
Besides, the property sold is a registered land. It is the act of registration that
transfers the ownership of the land sold. (GSIS v. C.A., G.R. No. 42278,
January 20, 1989). If the property is a registered land, the purchaser in good,
faith has a right to rely on the certificate of title and is under no duty to go
behind it to look for flaws (Mallorca v. De Ocampo, No. L-26852, March 25,
1970; Unchuan v. C.A., 161 SCRA 710 [1988]; Nuguid v. CA-G.R. No. 77427,
March 13, 1989).
Under the established principles of land registration law, the person dealing
with registered land may generally rely on the correctness of its certificate of
title and the law will in no way oblige him to go behind the certificate to
determine the condition of the property (Tiongco v. de la Merced, L-2446, July

25, 1974; Lopez vs. CA., G.R. No. 49739, January 20, 1989; Davao Grains Inc.
vs. IAC, 171 SCRA 612 [1989]). This notwithstanding, DELCOR did more than
that. It did not only rely on the certificate of title. The Court of Appeals found
that it had first investigated and checked the title (T.C.T. No. T-1183) in the
name of Luis Lancero. It likewise inquired into the Subdivision Plan, the
corresponding technical description and the deed of sale executed by Ricardo
Gevero in favor of Luis Lancero and found everything in order. It even went to
the premises and found Luis Lancero to be in possession of the land to the
exclusion of any other person. DELCOR had therefore acted in good faith in
purchasing the land in question.
Consequently, DELCOR's action is not barred by laches.
The main issues having been disposed of, discussion of the other issues
appear unnecessary.
PREMISES CONSIDERED, the instant petition is hereby DISMISSED and the
decision of the Court of Appeals is hereby AFFIRMED.
SO ORDERED.
G.R. No. L-12858

January 22, 1918

THE
UNITED
vs.
SANTIAGO PINEDA, defendant-appellant.
Francisco
and
Lualhati
Acting Attorney-General Paredes for appellee.

STATES, plaintiff-appellee,

for

appellant.

MALCOLM, J.:
This appeal requires a construction and an application, for the first time, of
the penal provisions of the Pharmacy Law.
Santiago Pineda, the defendant, is a registered pharmacist of long standing
and the owner of a drug store located at Nos. 442, 444, Calle Santo Cristo,
city of Manila. One Feliciano Santos, having some sick horses, presented a
copy of a prescription obtained from Dr. Richardson, and which on other
occasions Santos had given to his horses with good results, at Pineda's drug
store for filling. The prescription read "clorato de potasa 120 gramos
en seis papelitos de 20 gramos, para caballo." Under the supervision of
Pineda, the prescription was prepared and returned to Santos in the form of
six papers marked, "Botica Pineda Clorato potasa 120.00 en seis
papeles para caballo Sto. Cristo 442, 444, Binondo, Manila." Santos,
under the belief that he had purchased the potassium chlorate which he had
asked for, put two of the packages in water the doses to two of his sick
horses. Another package was mixed with water for another horse, but was
not used. The two horses, to which had been given the preparation, died
shortly afterwards. Santos, thereupon, took the three remaining packages to
the Bureau of Science for examination. Drs. Pea and Darjuan, of the Bureau
of Science, on analysis found that the packages contained not potassium
chlorate but barium chlorate. At the instance of Santos, the two chemists also
went to the drug store of the defendant and bought potassium chlorate,
which when analyzed was found to be barium chlorate. (Barium chlorate, it
should be noted, is a poison; potassium chlorate is not.) Dr. Buencamino, a
veterinarian, performed an autopsy on the horses, and found that death was
the result of poisoning.

Four assignments of error are made. The first is that the lower court erred in
admitting the testimony of the chemist Pena and Darjuan as to their purchase
of potassium chlorate at the drug store of the accused, which substance
proved on analysis to be barium chlorate. What the appellant is here relying
on is the maxim res inter alios acta. As a general rule, the evidence of other
offenses committed by a defendant is inadmissible. But appellant has
confused this maxim and this rule with certain exceptions thereto. The effort
is not to convict the accused of a second offense. Nor is there an attempt to
draw the mind away from the point at issue and thus to prejudice defendant's
case. The purpose is to ascertain defendant's knowledge and intent, and to
fix his negligence. If the defendant has on more than one occasion performed
similar acts, accident in good faith is possibly excluded, negligence is
intensified, and fraudulent intent may even be established. It has been said
that there is no better evidence of negligence than the frequency of
accidents. (See 10 R. C. L., pp. 938, 940.) The United States Supreme Court
has held that:
On the trial of a criminal case the question relates to the tendency of
certain testimony to throw light upon a particular fact, or to explain
the conduct of a particular person, there is a certain discretion on the
part of the trial judge which a court of errors will not interfere with,
unless it manifestly appear that the testimony has no legitimate
bearing upon the question at issue, and is calculated to prejudice the
accused.
Whenever the necessity arises for a resort to circumstantial evidence,
either from the nature of the inquiry or the failure of direct proof,
objections to the testimony on the ground of irrelevancy are not
favored.
Evidence is admissible in a criminal action which tends to show
motive, although it tends to prove the commission of another offense
by the defendant. (Moore vs. U. S. [1893], 150 U. S., 57.)
The second assignment of error is that the lower court erred in finding that
the substance sold by the accused to Feliciano Santos on the 22d of June,
1916, was barium chlorate and not potassium chlorate. The proof
demonstrates the contrary.
The third and fourth assignments of error that the lower court erred in finding
that the accused has been proved guilty beyond a reasonable doubt of an
infraction of Act No. 597, section 17, as amended. The third assignment
contains the points we should consider, including, we may remark, a
somewhat difficult question concerning which the briefs have given little
assistance.
The Pharmacy Law was first enacted as Act No. 597, was later amended by
Act Nos. 1921, 2236, and 2382, and is now found as Chapter 30 of the
Administrative Code. The law provides for a board of pharmaceutical
examiners, and the examination and registration of pharmacists, and finally
contains sundry provisions relative to the practice of pharmacy. High
qualification for applicants for the pharmaceutical; examination are
established. The program of subjects for the examination is wide.
Responsibility for the quality of drugs is fixed by section 17 of the Pharmacy
Law, as amended (now Administrative Code [1917], section 751), in the
following term:

Every pharmacist shall be responsible for the quality of all drugs,

chemicals, medicines, and poisons he may sell or keep for sale; and it
shall be unlawful for any person whomsoever to manufacture,
prepare, sell, or administer any prescription, drug, chemical,
medicine, or poison under any fraudulent name, direction, or
pretense, or to adulterate any drug, chemical, medicine, or poison so
used, sold or offered for sale. Any drug, chemical, medicine, or poison
shall be held to be adulterated or deteriorated within the meaning of
this section if it differs from the standard of quality or purity given in
the United States Pharmacopoeia.

and most exact and reliable safeguards consistent with the reasonable
conduct of the business, in order that human life may not be constantly be
exposed to the danger flowing from the substitution of deadly poisons for
harmless medicine." (Tombari vs. Connors [1912], 85 Conn., 235. See also
Willson vs. Faxon, Williams and Faxon [1913], 208 N. Y., 108; Knoefel vs.
Atkins [1907], 81 N. E., 600.) The "skill" required of a druggist is denominated
as "high" or "ample." (Peters vs. Jackson [1902], 50 W. Va., 644; 57 L. R. A.,
428.) In other words, the care required must be commensurate with the
danger involved, and the skill employed must correspond with the superior
knowledge of the business which the law demands.

The same section of the Pharmacy Law also contains the following penal
provision: "Any person violating the provisions of this Act shall, upon
conviction, be punished by a fine of not more than five hundred dollar." The
Administrative Code, section 2676, changes the penalty somewhat by
providing that:

Under one conception, and it should not be forgotten that the case we
consider are civil in nature, the question of negligence or ignorance is
irrelevant. The druggist is responsible as an absolute guarantor of what he
sells. In a decision which stands alone, the Supreme Court of Kentucky said:

Any person engaging in the practice of pharmacy in the Philippine

Islands contrary to any provision of the Pharmacy Law or violating
any provisions of said law for which no specific penalty s provided
shall, for each offense, be punished by a fine not to exceed two
hundred pesos, or by imprisonment for not more than ninety days, or
both, in the discretion of the court.
These are the provisions of law, pursuant to which prosecution has been
initiated and which it is now incumbent upon us to construe.
Turning to the law, certain points therein as bearing on our present facts must
be admitted. Thus, defendant is a pharmacist. As a pharmacist, he is made
responsible for the quality of all drugs and poisons which he sells. And finally
it is provided that it shall be unlawful for him to sell any drug or poison under
any "fraudulent name." It is the one word "fraudulent" which has given the
court trouble. What did the Legislature intend to convey by this restrictive
adjective?
Were we to adhere to the technical definition of fraud, which the appellant
vigorously insists upon, it would be difficult, if not impossible, to convict any
druggist of a violation of the law. The prosecution would have to prove to a
reasonable degree of certainty that the druggist made a material
representation; that it was false; that when he made it he knew that it was
false or made it recklessly without any knowledge of its truth and as positive
assertion; that he made it with the intention that it should be acted upon by
the purchaser; that the purchaser acted in reliance upon it, and that the
purchased thereby suffered injury. Such a construction with a literal following
of well-known principles on the subject of fraud would strip the law of at least
much of its force. It would leave the innocent purchaser of drugs, who must
blindly trust in the good faith and vigilance of the pharmacist, at the mercy of
any unscrupulous vendor. We should not, therefore, without good reason so
devitalize the law.
The profession of pharmacy, it has been said again and again, is one
demanding care and skill. The responsibility of the druggist to use care has
been variously qualified as "ordinary care," "care of a special high degree,"
"the highest degree of care known to practical men." Even under the first
conservative expression, "ordinary care" with reference to the business of a
druggist, the Supreme Court of Connecticut has said must be held to signify
"the highest practicable degree of prudence, thoughtfulness, and vigilance,

As applicable to the owners of drug stores, or persons engaged in

vending drugs and medicines by retail, the legal maxim should be
reversed. Instead of caveat emptor, it should be caveat venditor. That
is to say, let him be certain that he does not sell to a purchaser or
send to a patient one drug for another, as arsenic for calomel,
cantharides for or mixed with snakeroot and Peruvian bark, or even
one innocent drug, calculated to produce a certain effect, in place of
another sent for and designed to produce a different effect. If he does
these things, he cannot escape civil responsibility, upon the alleged
pretext that it was an accidental or an innocent mistake; that he had
been very careful and particular, and had used extraordinary care
and diligence in preparing or compounding the medicines as required,
etc. Such excuses will not avail him. (Fleet vs. Hollenkemp [1852], 56
Am. Dec., 563.)
Under the other conception, in which the proof of negligence is considered as
material, where a customer calls upon a druggist for a harmless remedy,
delivery of a poisonous drug by mistake by the druggist is prima
facienegligence, placing the burden on him to show that the mistake was
under the circumstances consistent with the exercise of due care. (See
Knoefel vs. Atkins, supra,) The druggist cannot, for example in filling a
prescription calling for potassium chlorate give instead to the customer
barium chlorate, a poison, place this poison in a package labeled "potassium
chlorate," and expect to escape responsibility on plea of mistake. His
mistake, under the most favorable aspect for himself, was negligence. So in a
case where a druggist filled an order for calomel tablets with morphine and
placed the morphine in a box labeled calomel, it was said:
It is not suggested, nor can we apprehend that it is in any wise
probable, that the act of furnishing the wrong drug in this case was
willful. If it was furnished by the clerk, it was undoubtedly a mistake
and unintentional. However, it was a mistake of the gravest kind, and
of the most disastrous effect. We cannot say that one holding himself
out as competent to handle such drugs, and who does so, having
rightful access to them, and relied upon by those dealing with him to
exercise that high degree of caution and care called for by the
peculiarly dangerous nature of this business, can be heard to say that
his mistakes by which he furnishes a customer the most deadly of
drugs for those comparatively harmless is not, in and of itself, gross
negligence, and that of an aggravated form. (Smith's Admrx. vs.

Middleton [1902], 56 L. R. A., 484.)

The rule of caveat emptor cannot apply to the purchase and sale of drugs.
The vendor and the vendee do not stand at arms length as in ordinary
transactions. An imperative duty is on the druggist to take precautions to
prevent death or serious injury to anyone who relies on his absolute honesty
and peculiar leaning. The nature of drugs is such that examination would not
avail the purchaser anything. It would be idle mockery for the customer to
make an examination of a compound of which he can know nothing.
Consequently, it must be that the druggist warrants that he will deliver the
drug called for.
In civil cases, the druggist is made liable for any injury approximately
resulting from his negligence. If B negligently sells poison under the guise of
a beneficial drug to A, he is liable for the injury done to A. In a case, which
has repeatedly been termed the leading case on the subject and which has
been followed by the United States Supreme Court, it was said, "Pharmacists
or apothecaries who compound or sell medicines, if they carelessly label a
poison as a harmless medicine, and sent it so labeled into the market, are
liable to all persons who, without fault on their part, are injured by using it as
such medicine, in consequence of the false label; the rule being that the
liability in such a case arises not out of any contract or direct privity between
the wrong-doer and the person injured, but out of the duty which the law
imposes on him to avoid acts in their nature dangerous to the lives of
others." (Nat. Savings Bank vs. Ward [1879], 100 U. S., 195, following
Thomas vs. Winchester [1852], 2 Seld. [N. Y.], 387.) In reality, for the
druggist, mistake is negligence and care is no defense. Throughout the
criminal law, run the same rigorous rules. For example, apothecaries or
apothecary clerks, who are guilty of negligence in the sale of medicine when
death ensues in consequence, have been held guilty of manslaughter. (See
Tessymond's Case [1828], 1 Lewin, C. C., 169.)
Bearing these general principles in mind, and remembering particularly the
care and skill which are expected of druggist, that in some jurisdictions they
are liable even for their mistake and in others have the burden placed upon
them to establish that they were not negligent, it cannot be that the
Philippine Legislature intended to use the word "fraudulent" in all its
strictness. A plea of accident and mistake cannot excuse for they cannot take
place unless there be wanton and criminal carelessness and neglect. How the
misfortune occurs is unimportant, if under all the circumstances the fact of
occurrence is attributed to the druggist as a legal fault. Rather considering
the responsibility for the quality of drugs which the law imposes on druggists
and the position of the word "fraudulent" in juxtaposition to "name," what is
made unlawful is the giving of a false name to the drug asked for. This view is
borne out by Spanish translation, which we are permitted to consult to
explain the English text. In the Spanish "supuesto" is used, and this word is
certainly not synonymous with "fraudulent." The usual badges of fraud,
falsify, deception, and injury must be present-but not scienter.
In view of the tremendous an imminent danger to the public from the
careless sale of poisons and medicines, we do not deem it too rigid a rule to
hold that the law penalizes any druggist who shall sell one drug for another
whether it be through negligence or mistake.
The judgment of the lower court, sentencing the defendant to pay a fine of
P100, with subsidiary imprisonment in case of insolvency, and to pay the
costs, is affirmed with the cost of this instance against the appellant, without

prejudice to any civil action which may be instituted. So ordered.

G.R. No. L-45179

March 30, 1937

THE
PEOPLE
OF
vs.
BENJAMIN
IRANG,
BENJAMIN IRANG, appellant.

THE

PHILIPPINES, plaintiff-appellee,
ET

Conrado
V.
Sanchez
Undersecretary of Justice Melencio for appellee.

AL., defendants.
for

appellant.

VILLA-REAL, J.:
The accused Benjamin Irang appeals to this court from the judgment of the
Court of First Instance of Nueva Ecija finding him guilty beyond reasonable
doubt of the complex crime robbery with homicide, the robbery having been
committed in the house of Perfecto Melocotones and Maximiniana
Melocotones, and sentencing him to the penalty of reclusion perpetua and to
indemnify the heirs of the deceased in the sum of P500, with the
proportionate part of the costs of the trial.
In support of his appeal the appellant assigns the following alleged errors as
having been committed by the courta quo in its decision in question, to wit:
1. The lower court erred in holding that the defendant Benjamin Irang
had been sufficiently identified beyond reasonable doubt, and in not
giving due weight to the testimony of the witnesses for the defense.
2. The lower court erred in not acquitting the defendant Benjamin
Irang on the ground of reasonable doubt.
The following undisputed facts have been established during the trial, to wit:
Between 7 and 8 o'clock of the night of November 9, 1935, seven individuals
with white stripes upon their faces, two of whom were armed with guns and
two with bolos, went to the house of the spouses Perfecto Melocotones and
Maximiniana Vicente, where three lights were burning, one at the balcony,
another in the room and another on a table. Some of said individuals went up
and others remained on guard downstairs. Those who went up approached
Perfecto Melocotones immediately and ordered him to bring his money.
Melocotones answered in the affirmative but before he could do what was
ordered him he was attacked with bolos until he fell to the floor. Later another
armed with a gun went up and approaching Maximiana Vicente, wife of
Perfecto Melocotones, struck herein the face with the butt of his gun, making
her lose consciousness momentarily. When she regained consciousness he
saw her husband already dead. One of the assailants then said to her: "Bring
out the money and jewelry." Maximiniana Vicente turned over to the man
who had struck her with the butt of his gun P70 in cash and jewelry valued at
P200, which she has kept in a trunk. During the short space of time that she
was turning over the money and jewelry, she looked at the man's face and
saw that he had pockmarks and a scar on his left eyelid. That same night the
house of Juana de la Cruz was assaulted by malefactors who had been firing
shots before arriving at and going up the house. All of them had white stripe
upon their faces. Juana de la Cruz noticed that one of them had pockmarks
and a scar on the left eyelid and was dressed in a maong-colored suit. It was
he who opened her trunk.

After the malefactors had left Perfecto Melocotones house, the latter's son
Toribio Melocotones, who had seen the assailants arrive but without
recognizing them, immediately reported the matter to the municipal
authorities and to the constabulary, who went to the scene of the crime
without loss of time. Maximiniana Vicente informed Lieutenant Roman
Alejandre of the Constabulary that the person who had struck her with the
butt of his gun and taken her money and jewelry was a man of regular
statute, with a lean body and pockmarked face. With this description, said
lieutenant went in search of said individual. Having arrested a group of
persons, he brought them to Maximiniana Vicente's house so that the latter
might identify among them the one who struck her with the butt of his gun,
but she did not find such man. Later another group was presented to her and
in it she identified the herein accused-appellant Benjamin Irang as the one
who had struck her with the butt of his gun and demanded delivery of her
money and jewelry. He was likewise the same man arrested by Lieutenant
Alejandre at midnight on November 9, 1935, in the barrio of Tampac which is
five or seven kilometers from Maturanoc to which he was taken and brought
to the house of the deceased. Juana de la Cruz also recognized Benjamin
Irang, through his pockmarks and scar on his left eyelid, as one of the men
who had gone up to her house that same night. Once under arrest, the
accused-appellant Benjamin Irang made an affidavit in Tagalog (Exhibit B),
stating that while he was in the barrio of Tampac, municipality of Guimba.
Province of Nueva Ecija, on November 9, 1935 at about 7 o'clock in the
evening, Fidel Estrella and Ignacio Sebastian arrived; that Fidel Estrella
invited him to go to the house of Ignacio Sebastian's brother-in-law named
Angel Talens because Estrella had something to tell him; that upon arriving at
Angel Talens' house, Fidel Estrella invited him to go to Maturanoc to look for
business; that the appellant asked Fidel Estrella why he wanted to bring him
in the latter told him to stop asking questions otherwise he would slash him
with his bolo; that Fidel Estrella carried a bolo and Ignacio Sebastian an
unlicensed firearms; that they went to the house of Perfecto Melocotones in
the barrio of Maturanoc, Guimba, Nueva Ecija, and upon arriving there Fidel
Estrella, who acted as the ringleader, assigned to each and every one of
them his corresponding place, designating those who should assault that of
Ursula Cabigon; that Benjamin Irang was in the group formed by Fidel Estrella
and Ignacio Sebastian, which assaulted the house of Perfecto Melocotones,
having been assigned to stand guard on the stairs of said house; that Fidel
Estrella, once inside the house, slashed Perfecto Melocotones thrice with his
bolo; that Fidel Estrella later told him that they had succeeded in taking
money and the shotgun; and that after the assault they dispersed, each
returning to his own home. This affidavit (Exhibit B) was sworn to by
Benjamin Irang before the deputy clerk of the Court of First Instance of Nueva
Ecija , in the presence of Graciano Pigol, the constabulary soldier who
accompanied him. Before Irang affixed his thumbmark and took his oath, the
deputy clerk of court asked him if he understood Tagalog and when he
answered in the affirmative said deputy clerk read the contends of the
document to him. Asked whether he had any thing else to add thereto, the
appellant answered that he had nothing more to say.
The defense of the accused-appellant is an alibi to the effect that in the
afternoon of the day of the commission of the crime, he was in his rice field
washing a fishing basket. There he met Roberto Alcantara. Later he went to
the house of Buenaventura Javier to return the fishing basket in question and
to exercise on the rings (jugar a las arogallas) with the latter's son Pedro, and
two unmarried sons of the appellant's uncle, in the presence of several

persons, returning home at 8 o'clock that night. When he was arrested the
constabulary soldiers opened his box but found nothing in it. They later took
him in a jitney to the victims house in the barrio of Maturanoc and upon being
brought face to face with the widow Maximiniana Vicente, Lieutenant
Alejandre told the widow: "this is the one who slashed your husband and
punctured your face." The widow answered saying: "Is it that man, sir." As
Benjamin Irang answered that he had not left his house, the lieutenant gave
him a blow which made him lose consciousness. Then the lieutenant said to
the widow: "He is the same man. It was he to whom you delivered the money
and jewelry. Look at him well. Identify him well." In the constabulary barracks
in Cabanatuan the soldiers and a sergeant manhandled him from the night of
November 9, 1935, until 4 o'clock in the morning of the 11th of said month
and year, for having denied all knowledge of the crime, making him lose his
breath and punching him in the stomach. When he could no longer bear the
maltreatment, he agreed to tell what they wanted him to tell. Upon being
taken for investigation, the constabulary soldiers told him to agree to all that
the clerk of court might read to him, otherwise they would again manhandle
him at the barracks. He was not present when the affidavit Exhibit B was
prepared. Neither are the contents thereof true. He merely affixed his
thumbmark upon said document for fear of the soldiers.
Lieutenant Alejandre as well as Sergeant Lubrico denied that the accused had
been maltreated in the least.
The only question to be decided in the present appeal is whether or not the
accused-appellant Benjamin Irang was identified as one of those who
assaulted the house of Perfecto Melocotones, killed him and robbed his wife
Maximiniana Vicente of money and jewelry.
Maximiniana Vicente, whom the accused-appellant Benjamin Irang struck in
the face with the butt of his gun and of whom he demanded delivery of her
money and jewelry scrutinized the latter's face and notice that he had
pockmarks and a scar on his left eyelid. When on that same night of the
assault Lieutenant Alejandre, guided by the description given him by
Maximiniana Vicente, went in search of the person who might have
maltreated the latter and robbed her of her money and jewelry and
presented a group of persons to said Maximiniana Vicente, she said that the
man who had maltreated her was not among those who composed that first
group. Said lieutenant later presented another group to her but neither did
the widow find in it the man who had struck her with the butt of his gun. In
the third group presented to her, she immediately pointed at one who turned
out to be the herein accused-appellant. The man pointed at protested but
when she told him that it was he who had struck her in the face with the butt
of his gun, the appellant became silent.
The testimony of Juana de la Cruz to the effect that her house, situated only
about one hundred meters from that of Perfecto Melocotones, was assaulted
that same night by some malefactors with white stripes upon their faces, and
that one of them, with pockmarks on his face and a scar on his left eyelid and
dressed in a maong-colored suit, who later turned out to be the herein
accused-appellant, opened her box, indirectly corroborates Maximiniana
Vicente's testimony that the man of the same description was the open who
went to her house and demanded delivery of her money and jewelry, having
recognized him later to be the herein accused-appellant. While evidence of
another crime is, as a rule, not admissible in a prosecution for robbery, it is
admissible when it is otherwise relevant, as where it tends to identify

defendant as the perpetrator of the robbery charged, or tends to show his

presence at the scene or in the vicinity of the crime at the time charged, or
when it is evidence of a circumstance connected with the crime (16, C. J.,
610, 611, sec. 1196).
Maximiniana Vicente's identification of the herein accused-appellant is
likewise corroborated by the latter's own admission invited to assault the
house of Perfecto Melocotones which they in fact the lower court of the
appellant's admission under oath upon the assumption that it was not made
voluntarily, is erroneous, inasmuch as the only evidence that it was not
voluntarily is the accused-appellant's own testimony that he had been
manhandled by the constabulary soldiers and threatened with further
maltreatment if he did not testify as they wished. This imputation of fortune
was categorically denied by Lieutenant Alejandre and Sergeant Lubrico of the
Constabulary, before whom the accused-appellant made the admission and
who caused it to be put in writing. The imputation is likewise contradicted by
the deputy clerk of the Court of First Instance of Nueva Ecija before whom the
accused-appellant swore to his admission and who testified that before he
administered oath to said accused-appellant, he asked him whether he
understood Tagalog and, having been answered in the affirmative, he read
said document to him and asked him whether he had anything to add, the
appellant affixing his thumbmark upon it after answering that he had nothing
more to say (U. S. vs. Zara, 42 Phil., 308). There is no doubt that an
admission made under oath under such circumstances cannot be considered
involuntary and therefore is admissible against the person making it.
This court is of the opinion, therefore, that the accused-appellant identity as
one of those who assaulted the house of Perfecto Melocotones and robbed
Maximiniana Vicente of her money and jewelry, is established conclusively
beyond reasonable doubt.
The defense of the accused is an alibi and has for its purpose to show that he
could both have been at the scene of the crime between 7 and 8 o'clock at
night because he was in another place about seven kilometers away at that
time. This defense of alibi is contradicted by the above-stated testimony of
Juana de la Cruz and by the accused-appellant's own admission under oath
Exhibit B.
The facts established at the trial as committed by the accused-appellant
beyond reasonable doubt constitute the complex crime of robbery with
homicide defined in article 293, in connection with article 294, paragraph 1,
of the Revised Penal Code, and punished by reclusion perpetua to death.
Taking into consideration all the circumstances of the case, the penalty
of reclusion perpetua imposed by the trial judge is in accordance with the
evidence and with law. It is not so, however, with the pecuniary liability
because, taking into account the gravity of the offense, the indemnity to the
heirs of the deceased should be P1,000 and that for the stolen goods not
restored P390.
Wherefore, with the sole modification that the accused-appellant Benjamin
Irang is sentenced further to indemnify the heirs of the deceased in the sum
of P1,000 and to restore to Maximiniana Vicente the sum of P70 and the
stolen jewelry and gun, or to reimburse the value thereof in the amount of
P390, the judgment appealed from is affirmed in all other respects, with the
costs of this instance to the appellant. So ordered.
Avancea, C.J., Abad Santos, Imperial and Diaz, JJ., concur.

Separate Opinions
LAUREL, J., dissenting:
I dissent.
The evidence presented by the prosecution consists in the main of (a) Exhibit
B, which is alleged confession of the appellant herein, (b) the testimony of
Toribio Melocotones, son of the deceased, (c) the testimony of Juana de la
Cruz, (d) that the Lieut. Roman Alejandre of the Philippine Army, and (e) that
of Maximiniana Vicente, widow of the deceased.
In his affidavit, marked Exhibit B, the appellant admitted his participation in
the commission of the crime charged. This written confession was not given
any value by the trial judge. According to the appellant, it was obtained from
him by an unknown soldier, through force and violence, under circumstances
which makes it involuntary and, therefore, inadmissible as proof of guilt (U.
S. vs. Zara, 42 Phil., 308; People vs. Buda Singh, 45 Phil., 676;
Peoplevs. Takeo Tabuche, 46 Phil., 28; People vs. Guendo Nishishima, 57 Phil.,
26; People vs. Francisco, 57 Phil., 418).
Toribio Melocotones testified that he saw the band of seven robbers on their
way to his father's house; that at that time he did not know who they were
but the he now knows five of them to be the accused Fidel Estrella, Jacinto
Sebastian, Ignacio Sebastian, Juan Levaste (alias Juan de Caste), and the
appellant herein, Benjamin Irang; that he saw the seven men enter the yard
of his father's house, where he had planted himself; that the seven men
entered the house, one at a time, the smallest in the group, Fidel Estrella,
first followed by a bigger man, the appellant Benjamin Irang, then by Juan
Levaste (alias Juan de Caste), by Jacinto Sebastian, by Ignacio Sebastian, and
finally, by the two members of the band who were unknown to him that as
soon as they all had entered he followed them but saw one of them standing
guard and firing several shots, as a result of which he heard his brothers and
sisters shouting; that it was on that occasion when he came nearer the house
but was seen by the guard who pointed a gun at him and ran away. The trial
judge brushed aside the testimony of this witness as unworthy of credence
and belief. He said:
. . . En primer lugar, cada uno de estos acusados fueron
sucesivamente llevos a su casa y presentados alli para ser
reconocidos en dias y noches sucesivos. Sin embargo, dicho testigo
no indico a ninguno de ellos que fuera el que en la noche de autos
asalto a su casa. Este testigo., no obstante, no fue llamado como tal
en la investigacion prelominarde esta causa en el Juzgado de Paz
para indicar, de conformidad con los detalles que he dado, que los
acusados eran asaltaron su acsa. Es verdad que esta falta de
explicacion no es suficienta para desacreditar su testimonio. Este
acusado es uno de los probatorio de su testimonio. Este acusado es
uno de los mas altos se entre to dos los acusados, por consiguente,
no puede decirse que era el mas pequeno. Aun admitiendo que el
testimonio del testigo al hablar de que el primero que entro era el
mas pequeno se referia si volumen del individio. Fidel Estrella
tampoco puede considerarse como el mas flaco de entre los
acusados. Es de cuerpo regular y se confunde casi como cualquiera
de los otros acusados en su volumen, a excepcion del acusado Emilio

de Guzman, que es el mas grueso de entre los mismos. Su

testimonio, pues en opinion del Juzgado, no puede servir ni siquiera
como un indicio de que los acusados eran los ladrones que ni siquiera
como un indicio de que los acusados eran los ladrones que asaltaron
su casa en la noche de autos. (underlining is mine.)
Juana de la Cruz testified that her house had also been assaulted
by tulisanes on the same night and that she had recognized the appellant as
one of them. The testimony of this witness refers to an event wholly distinct
and separate from the criminal act imputed to the appellant in the case at
bar, during the commission of which she stated she was at her house about
five meters away.
The testimony of Lieut. Alejandre refers to the investigation conducted by
him and to posterior occurrences, of scarcely any importance in proving the
identity and guilt of the appellant. Lieut. Alejandre arrested the appellant on
the strength of the description furnished him by the widow of the deceased.
How good the description is may be judged from the fact that prior to the
appellant's arrest, Lieut. Alejandre had arrested three other persons, later to
release them as "wrong parties!".
The only remaining basis for the conviction of the appellant by the lower
court is the testimony of the widow, Maximiniana Vicente. In the opinion of
the trial court, this witness has sufficiently identified the appellant herein.
Lieut. Alejandre testified that when this witness, Maximiniana Vicente,
confronted the defendant she recognized him as one of the assaillants. This
the appellant denied, stating that the widow identified him "in obedience to
Lieut. Alejandre's order." On cross-examination, the witness stated that she
was able to identify the appellant "porque el Teniente Alejandre le habia
indicado que era uno de los que tomaron parte en el asalto de su casa."
When called again to the witness stand she retracted this statement. I am
reluctant to join trial judge in attributing this contradiction on her part merely
to her ignorance.
Two important detail in this case deserve more than passing mention. It
appears that soon after the band of robbers had deported, Lieut. Alejandre
arrived at the scene of the crime and conducted an investigation. The widow,
on that occasion referred to the appellant as a man with pockmarks. About
one month later, she testified that she recognized him besides by a scar on
his left eyelid. A scar identifies a man more effectively than mere pockmarks,
these common. But I do not know why it took the witness one month to
discover this important descriptive detail. The widow also testified that she
recognized the appellant, Irang, because of the light because it was he who
hit her with the butt of his gun and because it was to him that she delivered
money and jewelry. It should be observed, however, that the assaillants were
disguised when they committed the crime. This makes identification difficult,
if not impossible, and probably accounts for the fact that the widow made no
reference to the appellant's scar in the beginning.
It is true that the finding of fact made by trial judge are entitled to great
weight and credit and should not be overturned unless grave considerations
warrant the taking of such a course. But I am not convinced that appellant
has been satisfactorily identified in the case at bar (U. S. vs. Asio, 1 Phil.,
304).
The defense interposed by the appellant is an alibi. While alibis are easily
concocted and ,for this reason, are received by court with great caution, I

express the opinion that conviction should be predicated on the sufficiency of

the evidence for the prosecution and not on the weakness of the evidence for
the defense. I am, therefore, of the opinion that the appellant is entitled, like
his six co-accused in the court below, to an acquittal.

[G.R. No. 132164. October 19, 2004]

CIVIL

SERVICE
COMMISSION, petitioner,
BELAGAN, respondent.

vs.

ALLYSON

DECISION
SANDOVAL-GUTIERREZ, J.:
When the credibility of a witness is sought to be impeached by proof of
his reputation, it is necessary that the reputation shown should be that which
existed before the occurrence of the circumstances out of which the litigation
arose,[1] or at the time of the trial and prior thereto, but not at a period
remote from the commencement of the suit.[2] This is because a person of
derogatory character or reputation can still change or reform himself.
For our resolution is the petition for review on certiorari of the Court of
Appeals Decision[3] dated January 8, 1998, in CA-G.R. SP. No. 44180, the
dispositive portion of which reads:
WHEREFORE, Resolution No. 966213 dated September 23, 1996 and
Resolution No. 972423 dated April 11, 1997 of the respondent Civil Service
Commission are hereby set aside. The complaint against petitioner Allyson
Belagan filed by Magdalena Gapuz is herebyDISMISSED.
The dismissal of petitioner Belagan is lifted and he is hereby ordered to be
immediately reinstated to his position without loss of seniority, retirement,
backwages and other rights and benefits.
SO ORDERED.
The instant case stemmed from two (2) separate complaints filed
respectively by Magdalena Gapuz, founder/directress of the Mother and Child
Learning Center, and Ligaya Annawi, a public school teacher at Fort Del Pilar
Elementary School, against respondent Dr. Allyson Belagan, Superintendent
of the Department of Education, Culture and Sports (DECS), all from Baguio
City. Magdalena charged respondent with sexual indignities and harassment,
while Ligaya accused him of sexual harassment and various malfeasances.

Magdalenas sworn complaint alleges that sometime in March 1994, she

filed an application with the DECS Office in Baguio City for a permit to
operate a pre-school. One of the requisites for the issuance of the permit was
the inspection of the school premises by the DECS Division Office. Since the
officer assigned to conduct the inspection was not present, respondent
volunteered his services. Sometime in June 1994, respondent and
complainant visited the school. In the course of the inspection, while both
were descending the stairs of the second floor, respondent suddenly placed
his arms around her shoulders and kissed her cheek. Dumbfounded, she
muttered, Sir, is this part of the inspection? Pati ba naman kayo sa DECS
wala ng values? Respondent merely sheepishly smiled. At that time, there
were no other people in the area.
Fearful that her application might be jeopardized and that her husband
might harm respondent, Magdalena just kept quiet.
Several days later, Magdalena went to the DECS Division Office and
asked respondent, Sir, kumusta yung application ko? His reply was Mag-date
muna tayo. She declined, explaining that she is married. She then left and
reported the matter to DECS Assistant Superintendent Peter Ngabit.
Magdalena never returned to the DECS Division Office to follow up her
application. However, she was forced to reveal the incidents to her husband
when he asked why the permit has not yet been released. Thereupon, they
went to the office of the respondent. He merely denied having a personal
relationship with Magdalena.
Thereafter, respondent forwarded to the DECS Regional Director his
recommendation to approve Magdalenas application for a permit to operate a
pre-school.
Sometime in September 1994, Magdalena read from a local newspaper
that certain female employees of the DECS in Baguio City were charging a
high-ranking DECS official with sexual harassment. Upon inquiry, she learned
that the official being complained of was respondent. She then wrote a lettercomplaint for sexual indignities and harassment to former DECS Secretary
Ricardo Gloria.
On October 4, 1994, respondent was placed under suspension.
On the part of Ligaya Annawi, she alleged in her complaint that on four
separate occasions, respondent touched her breasts, kissed her cheek,
touched her groins, embraced her from behind and pulled her close to him,
his organ pressing the lower part of her back.
Ligaya also charged respondent with: (1) delaying the payment of the
teachers salaries; (2) failing to release the pay differentials of substitute
teachers; (3) willfully refusing to release the teachers uniforms, proportionate
allowances and productivity pay; and (4) failing to constitute the Selection
and Promotion Board, as required by the DECS rules and regulations.

The DECS conducted a joint investigation of the complaints of

Magdalena and Ligaya. In his defense, respondent denied their charge of
sexual harassment. However, he presented evidence to disprove Ligayas
imputation of dereliction of duty.
On January 9, 1995, the DECS Secretary rendered a Joint
Decision[4] finding respondent guilty of four (4) counts of sexual indignities
or harassments committed against Ligaya; and two (2) counts of sexual
advances or indignities against Magdalena. He was ordered dismissed from
the service. The dispositive portion of the Joint Decision reads:
WHEREFORE, foregoing disquisitions duly considered, decision is hereby
rendered in the two above-entitled cases, finding:
a) Respondent Dr. Allyson Belagan, Superintendent of the DECS
Baguio City Schools Division GUILTY of the four counts of
sexual indignities or harassments committed against the
person and honor of complainant Miss Ligaya Annawi, a Baguio
City public school teacher, while in the performance of his official
duties and taking advantage of his office. He is,
however, ABSOLVED
of all the other
charges
of
administrative malfeasance or dereliction of duty.
b)

Respondent
Baguio
City
Superintendent
Allyson
Belagan likewise GUILTY of the two counts of sexual
advances or indignities committed against the person and
honor of complainant Mrs. Magdalena Gapuz, a private school
teacher of Baguio City, while in the performance of his official
duties and taking advantage of his office.

Consequently, respondent Allyson Belagan is HEREBY ORDERED

DISMISSED from the government service, with prejudice to reinstatement
and all his retirement benefits and other remunerations due him are HEREBY
DECLARED FORFEITED in favor of the government.
SO ORDERED.[5]
Upon appeal, the Civil Service Commission (CSC), on September 23,
1996, promulgated Resolution No. 966213[6] affirming the Decision of the
DECS Secretary in the case filed by Magdalena but dismissing the complaint
of Ligaya. The CSC ruled that respondents transgression against Magdalena
constitutes grave misconduct. Thus:
The acts of Belagan are serious breach of good conduct since he was holding
a position which requires the incumbent thereof to maintain a high degree of
moral uprightness. As Division Superintendent, Belagan represents an
institution tasked to mold the character of children. Furthermore, one of his
duties is to ensure that teachers in his division conduct themselves properly
and observe the proper discipline. Any improper behavior on his part will
seriously impair his moral ascendancy over the teachers and students which
can not be tolerated. Therefore, his misconduct towards an applicant
for a permit to operate a private pre-school cannot be treated lightly
and constitutes the offense of grave misconduct.
WHEREFORE, respondent Allyson Belagan is hereby found guilty of grave

misconduct and imposed the penalty of DISMISSAL from the service with
all the accessory penalties. The decision of the DECS Secretary is modified
accordingly.[7]
On October 29, 1996, respondent seasonably filed a motion for
reconsideration, contending that he has never been charged of any offense in
his thirty-seven (37) years of service. By contrast, Magdalena was charged
with several offenses before the Municipal
Trial Court (MTC) of Baguio City, thus:
1. Criminal

Case No. 43416 for

(December 3, 1980)

LIGHT

ORAL

DEFAMATION

2. Criminal Case No. 45629 for SLIGHT PHYSICAL INJURIES (May 13,
1982)
3. Criminal Case No. 45630 for GRAVE THREATS (May 13, 1982)

15. Criminal Case No. 55642 for GRAVE ORAL DEFAMATION

(December 2, 1986)
16. Criminal Case No. 55423 for GRAVE ORAL DEFAMATION
(October 24, 1986)
17. Criminal Case No. 55846 for GRAVE ORAL DEFAMATION
(November 4, 1986)
18. Criminal Case No. 55800 for GRAVE ORAL DEFAMATION
(January 7, 1987)
19. Criminal Case No. 57312 for UNJUST VEXATION (November 29,
1987)
20. Criminal Case No. 55643 for SLIGHT PHYSICAL INJURIES
(December 13, 1985)

4. Criminal Case No. 45914 for GRAVE THREATS (June 24, 1982)

21. Criminal Case No. 53404 for UNJUST VEXATION (December 13,
1985)

5. Criminal Case No. 51532 for MALICIOUS MISCHIEF (January 25,

1985)

22. Criminal Case No. 55422 for UNJUST VEXATION (October 24,
1986) [8]

6. Criminal Case No. 51533 for LIGHT THREATS (January 25, 1985)

In addition, the following complaints against Magdalena were filed with

the Barangay Chairmen of Barangay Gabriela Silang and Barangay Hillside,
both in Baguio City:

7. Criminal Case No. 51556 for GRAVE ORAL DEFAMATION (January

30, 1985)
8. Criminal Case No. 51818 for LIGHT ORAL DEFAMATION (March
18, 1985)
9. Criminal Case No. 51819 for GRAVE ORAL DEFAMATION (March
18, 1985)
10. Criminal Case No. 51820 for MALICIOUS MISCHIEF (March 18,
1985)

1. Ordana vs. Gapuz (Brgy. Case No. 11-19-02-A) for GRAVE

THREATS, UNJUST VEXATION, RUMOR MONGERING
2. Teresita De Los Santos vs. Gapuz (Brgy. Case No. 86-8-26-8) for
GRAVE THREATS & ORAL DEFAMATION
3. Mrs. Conchita Ballesteros vs. Gapuz (Brgy. Case No. 029) for
ORAL DEFAMATION and FALSE ACCUSATION
4.

Mrs.

11. Criminal Case No. 51821 for UNJUST VEXATION (March 18,
1985)
12. Criminal Case No. 62173 for UNJUST VEXATION (May 29, 1991)

Clara Baoas vs. Gapuz (Brgy.

HARASSMENT and THREATS

Case

No.

030)

for

5. GABRIELA SILANG TANOD FORCES vs. Gapuz (Case No. 031) for
HABITUAL TROUBLE MAKER

13. Criminal Case No. 62172 for GRAVE ORAL DEFAMATION (May
29, 1991)

6. Pablo

Ortiz vs. Gapuz

DEFAMATION

(November

1,

1979)

for

ORAL

14. Criminal Case No. 62754 for GRAVE ORAL DEFAMATION

(December 2, 1986)

7. C. Ballesteros vs. Gapuz (September 11, 1978) for ORAL

DEFAMATION

8. Mrs. Liza Ancheta vs. Gapuz (September 27, 1978) for RUMOR
MONGERING
9. Mr. Pananin (Beneco Personnel) (October 8, 1978) for ORAL
DEFAMATION
10. Mrs. Minda Valdez vs. Gapuz (November 6, 1978) for ORAL
DEFAMATION

Mrs. Gapuz was hurling invectives along her alley in the

early morning
20. Incident of September 13, 1979
Mrs. Gapuz tapped electric wire from Mrs. Tessie de los
Santos with the latters consent
21. Incident of September 21, 1979

11. WOMENS CLUB vs. GAPUZ (February 9, 1979) for ORAL

DEFAMATION

Mrs. Gapuz was shouting and

scandalously around her residence

hurling

invectives

12. Vistro Salcedo case (May 8, 1979)

22. Incident of September 21, 1979
Where Mrs. Gapuz was spreading
Barangay Captain and Police Chief

rumors

against

13. Demolition Scandal (May 10, 1979)

Where she called all the residents of their Barangay for an
emergency meeting and where she shouted invectives
against the residents
14. Incident of June 13, 1979
Mrs. Gapuz shouted invectives against the Barangay
Sanitary Inspector
15. Incident of August 25, 1979
Mrs. Gapuz shouted invectives against the servants of
Mr. De Leon
16. Incident of August 26, 1979
Mrs. Gapuz terrorized the council meeting
17. Incident of September 2, 1978
Mrs. Clara Baoas was harassed by Mrs. Gapuz
18. Incident of September 9, 1979
Mrs. Gapuz quarreled with Mrs. C. Ballesteros during the
council meeting
19. Incident of September 10, 1979

Mrs. Gapuz was shouting, complaining about alleged

poisoned sardines near the premises of her residence
which killed her hen.
23. Incident of September 23, 1979
Mrs. Gapuz was shouting unpleasant words around the
neighborhood. She did not like the actuations of a
bayanihan group near the waiting shed.[9]
Respondent claimed that the numerous cases filed against Magdalena
cast doubt on her character, integrity, and credibility.
In its Resolution No. 972423[10] dated April 11, 1997, the CSC denied
respondents motion for reconsideration, holding that:
The character of a woman who was the subject of a sexual assault is
of minor significance in the determination of the guilt or innocence
of the person accused of having committed the offense. This is so
because even a prostitute or a woman of ill repute may become a
victim of said offense.
As such, the fact that complainant Magdalena Gapuz is shown to have had
cases before the regular courts for various offenses and was condemned by
her community for wrongful behavior does not discount the possibility that
she was in fact telling the truth when she cried about the lecherous advances
made to her by the respondent. x x x
Respondent then filed with the Court of Appeals a petition for review. As
stated earlier, it reversed the CSC Resolutions and dismissed Magdalenas
complaint.
The Appellate Court held that Magdalena is an unreliable witness, her
character being questionable. Given her aggressiveness and propensity for
trouble, she is not one whom any male would attempt to steal a kiss. In fact,
her record immediately raises an alarm in any one who may cross her path.

[11] In absolving respondent from the charges, the

considered his unblemished service record for 37 years.

Appellate

Court

Unsatisfied, the CSC, through the Solicitor General, filed the instant
petition raising the following assignments of error:
I. The Supreme Court may rule on factual issues raised on
appeal where the Court of Appeals misappreciated the
facts. Furthermore, where the findings of the Court of
Appeals and the trial court are contrary to each other,
the Supreme Court may review the record and evidence.
The Court of Appeals erred in not giving credence to the
testimony of complainant Magdalena Gapuz despite
convincing and overwhelming signs of its truthfulness.
II. The Court of Appeals committed reversible error when it
failed to give due weight to the findings of the DECS,
which conducted the administrative investigation,
specifically with respect to the credibility of the
witnesses presented.
III. The Court of Appeals erred in ruling that respondent
should be penalized under Sec. 22 (o) of the Omnibus
Rules Implementing Book V and not Sec. 22 (e) of said
rules.[12]
In his comment, respondent maintains that Magdalenas derogatory
record undermines the verity of her charge and that the Court of Appeals is
correct in dismissing it.
The petition is impressed with merit.
The pivotal issue before us is whether complaining witness, Magdalena
Gapuz, is credible. This is a question of fact which, as a general rule, is not
subject to this Courts review.
It is a rule of long standing that factual findings of the Court of Appeals,
if supported by substantial evidence, are conclusive and binding on the
parties and are not reviewable by this Court.[13] This Court is, after all, not a
trier of facts. One of the exceptions, however, is when the findings of the
Court of Appeals are contrary to those of the trial court or a quasijudicialbody, like petitioner herein.[14]
Here, the Court of Appeals and the CSC are poles apart in their
appreciation of Magdalenas derogatory record. While the former considered it
of vital and paramount importance in determining the truth of her charge, the
latter dismissed it as of minor significance. This contrariety propels us to the
elusive area of character and reputation evidence.
Generally, the character of a party is regarded as legally irrelevant in
determining a controversy.[15] One statutory exception is that relied upon by

respondent, i.e., Section 51 (a) 3, Rule 130 of the Revised Rules on Evidence,
which we quote here:
SEC. 51. Character evidence not generally admissible; exceptions.
(a) In Criminal Cases:
xxxxxx
(3) The good or bad moral character of the offended party may be
proved if it tends to establish in any reasonable degree the
probability or improbability of the offense charged.
It will be readily observed that the above provision pertains only to
criminal cases, not to administrative offenses. And even assuming that this
technical rule of evidence can be applied here, still, we cannot sustain
respondents posture.
Not every good or bad moral character of the offended party may be
proved under this provision. Only those which would establish the probability
or improbability of the offense charged. This means that the character
evidence must be limited to the traits and characteristics involved in the type
of offense charged.[16] Thus, on a charge of rape - character for chastity, on
a charge of assault - character for peaceableness or violence, and on a
charge of embezzlement - character for honesty.[17] In one rape case, where
it was established that the alleged victim was morally loose and apparently
uncaring about her chastity, we found the conviction of the accused doubtful.
[18]
In the present administrative case for sexual harassment, respondent
did not offer evidence that has a bearing on Magdalenas chastity. What he
presented are charges for grave oral defamation, grave threats, unjust
vexation, physical injuries, malicious mischief, etc. filed against her.
Certainly, these pieces of evidence are inadmissible under the above
provision because they do not establish the probability or improbability of the
offense charged.
Obviously, in invoking the above provision, what respondent was trying
to establish is Magdalenas lack of credibility and not the probability or the
improbability of the charge. In this regard, a different provision applies.
Credibility means the disposition and intention to tell the truth in the
testimony given. It refers to a persons integrity, and to the fact that he is
worthy of belief.[19] A witness may be discredited by evidence attacking his
general reputation for truth,[20] honesty[21] or integrity.[22] Section 11, Rule
132 of the same Revised Rules on Evidence reads:
SEC. 11. Impeachment of adverse partys witness. A witness may be
impeached by the party against whom he was called, by contradictory
evidence, by evidence that his general reputation for truth, honesty,
or integrity is bad, or by evidence that he has made at other times
statements inconsistent with his present testimony, but not by evidence of
particular wrongful acts, except that it may be shown by the examination
of the witness, or the record of the judgment, that he has been

convicted of an offense.
Although she is the offended party, Magdalena, by testifying in her own
behalf, opened herself to character or reputation attack pursuant to the
principle that a party who becomes a witness in his own behalf places
himself in the same position as any other witness, and may be
impeached by an attack on his character or reputation.[23]
With the foregoing disquisition, the Court of Appeals is correct in holding
that the character or reputation of a complaining witness in a sexual charge
is a proper subject of inquiry. This leads us to the ultimate question is
Magdalenas derogatory record sufficient to discredit her credibility?
A careful review of the record yields a negative answer.
First, most of the twenty-two (22) cases filed with the MTC of Baguio City
relate to acts committed in the 80s, particularly, 1985 and 1986. With respect
to the complaints filed with the Chairmen of Barangay Gabriela Silang and
Barangay Hillside, the acts complained of took place in 1978 to 1979. In the
instant administrative case, the offense was committed in 1994. Surely,
those cases and complaints are no longer reliable proofs of Magdalenas
character or reputation. The Court of Appeals, therefore, erred in according
much weight to such evidence.Settled is the principle that evidence of
ones character or reputation must be confined to a time not too
remote from the time in question.[24] In other words, what is to be
determined is the character or reputation of the person at the time
of the trial and prior thereto, but not at a period remote from the
commencement of the suit.[25] Hence, to say that Magdalenas credibility
is diminished by proofs of tarnished reputation existing almost a decade ago
is unreasonable. It is unfair to presume that a person who has wandered from
the path of moral righteousness can never retrace his steps again. Certainly,
every person is capable to change or reform.
Second, respondent failed to prove that Magdalena was convicted in any
of the criminal cases specified by respondent. The general rule prevailing in a
great majority of jurisdictions is that it is not permissible to show that a
witness has been arrested or that he has been charged with or
prosecuted for a criminal offense, or confined in jail for the purpose of
impairing his credibility.[26] This view has usually been based upon one or
more of the following grounds or theories: (a) that a mere unproven charge
against the witness does not logically tend to affect his credibility, (b) that
innocent persons are often arrested or accused of a crime, (c) that one
accused of a crime is presumed to be innocent until his guilt is legally
established, and (d) that a witness may not be impeached or discredited by
evidence of particular acts of misconduct.[27] Significantly, the same Section
11, Rule 132 of our Revised Rules on Evidence provides that a witness may
not be impeached by evidence of particular wrongful acts. Such evidence is
rejected because of the confusion of issues and the waste of time that would
be involved, and because the witness may not be prepared to expose the
falsity of such wrongful acts.[28] As it happened in this case, Magdalena was
not able to explain or rebuteach of the charges against her listed by
respondent.

But more than anything else, what convinces us to sustain the

Resolution of the CSC is the fact that it is supported by substantial evidence.
As aptly pointed out by the Solicitor General, Magdalena testified in a
straightforward, candid and spontaneous manner. Her testimony is replete
with details, such as the number of times she and respondent inspected the
pre-school, the specific part of the stairs where respondent kissed her, and
the matter about her transient boarders during summer. Magdalena would
not have normally thought about these details if she were not telling the
truth. We quote her testimony during the cross-examination conducted by
DECS Assistant Secretary Romeo Capinpin and Undersecretary Antonio
Nachura, thus:
Q Was there any conversation between you and Dr. Belagan during
the inspection on the first floor and the second floor?
A There was, sir. It was a casual conversation that we had with
regard to my family, background, how the school came about,
how I started with the project. That was all, sir.
Q Nothing about any form of sexual harassment, in words or in
deeds?
A Sir, because he inspected the second floor twice, sir. We went up
to the stairs twice, sir.
Q Why?
A I really dont know what was the reason behind, sir. But on the
second inspection, sir, I told him that as of that time I had
some transients with me. I was making use of the premises for
transients because that was summer then, sir. And I already
started paying the place so I said, Sir, I have some transients
with me in the evening and he said, You know Mrs. Gapuz, I am
interested to stay in one of the rooms as one your boarders.
But I respectfully declined saying, Sir, I think for delicadeza I
cannot accept you. Not that I dont want you to be here but
people might think that I am keeping you here and that would
prejudice my permit, sir.
ASEC R. CAPINPIN:
Q When did the alleged kissing occur? Was it during the first
time that you went up with him or the second time?
A No, sir, on the second time, sir.
Q Second time?
A Yes, sir. We were going down, sir.

Q And you were going down?

A Yes, but I declined, sir for delicadeza.

A Yes, sir.

Q At that time, there were no transients yet.

Q Do you recall what portion of the stairs where you were

during the alleged kissing?

A When he came over for the inspection sir, nobody was there.[29]

A Sir, on the topmost of the stairs.

Q Before you went down?

The above testimony does not stand in isolation. It is corroborated by

Peter Ngabit, DECS Assistant Division Superintendent. Ngabit testified that
Magdalena reported to him that respondent kissed her and asked her for a
date.

A Yes, sir. Topmost, sir?

Q I would like to call your attention to Exhibit A which is the affidavit

of Mrs. Magdalena B. Gapuz, particularly item no. 8, and may I
read for your information That the Monday after the incident, I
went to the DECS Division Office expecting to get favorable
recommendation from the DECS Regional Office for the
issuance of my permit. That I proceeded to the Superintendent
and asked him, Sir, kumusta yung application ko and he
said, mag date muna tayo but I refused and explained that I
am married, after which I proceeded to the Office of Asst.
Superintendent Peter Ngabit to relate the incident and then left
the Division Office. Do you remember if Mrs. Gapuz went to
your Office on the particular day?

ASEC R. CAPINPIN:

A Yes, sir.

Q Will you kindly tell us your relative position at that time?

Q What time was that?

A Sir, on the second time that we went up and I mentioned

about these transients that I had then and he wanted to
stay in the place in one of the rooms and then I declined
and I was still showing the rooms simultaneously. On
the last, the biggest room that I had, he said, No. Never
mind, I am not going to see that anymore. So he waited
for me there and upon reaching the place, as I was to
step down on the first step going down, he placed his
arm and held me tightly and planted the kiss on my
cheek, sir.

A I cannot remember, sir.

A Yes, sir. At the topmost because there is a base floor

going up to the stairs and it has 16 steps.
Q So, it was not on the 16th step but still on the topmost?
A Yes sir.
Q Part of the floor of the building?

Q You said that he wanted to stay in one of the rooms?

A Yes, sir, as a boarder.
Q Is that room used for transients?
A During that time, sir, during the summertime, I made use of the
time to get some transients.
Q And he was telling you that he wanted to occupy one of the
rooms?

Q Was it morning, afternoon?

A I think it was in the morning, sir.
Q Morning.
A Yes, sir.
Q Early morning?
A About noon, sir.
Q What transpired between you and Mrs. Gapuz in your office?
A When she came to my Office, she was relating about that and she
was even insulting me saying among others that I was a
useless fixture in that Office because I cannot do anything with
the processing of her paper or application.

Q It says here that she would relate the incident to you. Did
she relate any incident?
A Yes, she did sir.
Q What was that incident all about?
A She was saying that when Mr. Belagan went to visit her
school, he stole a kiss from her and that she was saying
that when she asked Supt. Belagan for her papers, she
was asked for a date before the Indorsement. After
that, she left.[30]
With Magdalenas positive testimony and that of Ngabit, how can we
disregard the findings of the DECS and the CSC? Surely, we cannot debunk it
simply because of the Court of Appeals outdated characterization of
Magdalena as a woman of bad reputation. There are a number of cases
where the triers of fact believe the testimony of a witness of bad
character[31]and refuse to believe one of good character.[32] As a matter of
fact, even a witness who has been convicted a number of times is worthy of
belief, when he testified in a straightforward and convincing manner.[33]

We are, however, not inclined to impose the penalty of dismissal from

the service. Respondent has served the government for a period of 37 years,
during which, he made a steady ascent from an Elementary Grade School
Teacher to Schools Division Superintendent. In devoting the best years of his
life to the education department, he received numerous awards.[41]This is
the first time he is being administratively charged. He is in the edge of
retirement. In fact, he had filed his application for retirement when
Magdalena filed her complaint. Section 16, Rule XIV, of the Rules
Implementing Book V of Executive Order No. 292 provides:
SEC. 16. In the determination of penalties to be imposed, mitigating
and aggravating circumstances may be considered. x x x.
The mitigating circumstances are enumerated in Section 53, Rule IV, of
the Uniform Rules on Administrative Cases in the Civil Service,[42] which
reads in part:
SEC.
53. Extenuating,
Mitigating,
Aggravating,
or
Alternative
Circumstances. In the determination of the penalties to be imposed,
mitigating, aggravating and alternative circumstances attendant to the
commission of the offense shall be considered.
The following circumstances shall be appreciated:
xxxxxx

At this juncture, it bears stressing that more than anybody else, it is the
DECS investigating officials who are in a better position to determine whether
Magdalena is telling the truth considering that they were able to hear and
observe her deportment and manner of testifying.[34]
In reversing the CSCs Resolutions, the Court of Appeals ruled that there
is ample evidence to show that Magdalena had a motive in accusing
respondent, i.e., to pressure him to issue a permit. This is unconvincing. The
record shows that respondent had already issued the permit when Magdalena
filed her letter-complaint. Indeed, she had no more reason to charge
respondent administratively, except of course to vindicate her honor.
Petitioner prays that we sustain its ruling penalizing respondent for
grave misconduct and not merely for disgraceful or immoral conduct which is
punishable by suspension for six (6) months and one (1) day to one (1) year
for the first offense.[35] Misconduct means intentional wrongdoing or
deliberate violation of a rule of law or standard of behavior, especially by a
government official.[36] To constitute an administrative offense, misconduct
should relate to or be connected with the performance of the official
functions and duties of a public officer.[37]In grave misconduct as
distinguished from simple misconduct, the elements of corruption, clear
intent to violate the law or flagrant disregard of established rule, must be
manifest.[38]Corruption as an element of grave misconduct consists in the
act of an official or fiduciary person who unlawfully and wrongfully uses his
station or character to procure some benefit for himself or for another
person, contrary to duty and the rights of others.[39] This is apparently
present in respondents case as it concerns not only a stolen kiss but also a
demand for a date, an unlawful consideration for the issuance of a permit to
operate a pre-school. Respondents act clearly constitutes grave misconduct,
punishable by dismissal.[40]

j. length of service
xxxxxx
l. and other analogous cases.
Conformably with our ruling in a similar case of sexual harassment,
[43] and respondents length of service, unblemished record in the past and
numerous awards,[44] the penalty of suspension from office without pay for
one (1) year is in order.
While we will not condone the wrongdoing of public officers and
employees, however, neither will we negate any move to recognize and
remunerate their lengthy service in the government.
WHEREFORE, the petition is GRANTED. The Decision of the Court of
Appeals dated January 8, 1998 in CA-G.R. SP No. 44180 is REVERSED. The
CSC Resolution Nos. 966213 and 972423 are AFFIRMED, subject to the
modification that respondent ALLYSON BELAGAN is SUSPENDED from office
without pay for ONE (1) YEAR, with full credit of his preventive suspension.
SO ORDERED.

G.R. Nos. 172532 172544-45

November 20, 2013

PRIMO C. MIRO, in his capacity as Deputy Ombudsman for the

Visayas, Petitioner,

vs.
MARILYN MENDOZA VDA. DE EREDEROS, CATALINA ALINGASA and
PORFERIO I. MENDOZA,Respondents.
DECISION
BRION, J.:
We resolve the petition for review on certiorari 1 assailing the decision2 dated
November 22 2005 and the resolution 3 dated April 21 2006 of the Court of
Appeals CA) in CA-G.R. SP Nos. 83149 83150 and 83576.
The CA decision reversed and set aside the joint decision 4 dated January 9
2004 of the Deputy Ombudsman for the Visayas (Deputy Ombudsman), Primo
C. Miro in OMB-V-A-02-0414-H finding respondents Marilyn Mendoza Vda. de
Erederos Catalina Alingasa and Porferio I Mendoza guilty of the administrative
charge of Grave Misconduct. The Deputy Ombudsman also found Oscar
Peque guilty of Simple Misconduct.
The Factual Antecedents
As culled from the records, the antecedents of the present case are as
follows:
Mendoza, Director of the Regional Office VII of the Land Transportation Office,
Cebu City (LTO Cebu), Erederos, Mendoza's niece and secretary, Alingasa,
LTO clerk, and Peque, Officer-in-Charge, Operation Division of LTO Cebu, were
administratively charged with Grave Misconduct before the Deputy
Ombudsman by private complainants, namely: Maricar G Huete (Liaison
Officer of GCY Parts), Ernesto R Cantillas (Liaison Officer of Isuzu Cebu, Inc.),
Leonardo Villaraso (General Manager of TBS Trading), and Romeo C. Climaco
(Corporate Secretary of Penta Star).5 They were likewise charged with
criminal complaints for violation of Section 3(e) of Republic Act No. 3019,
otherwise known as the Anti Graft and Corrupt Practices Act."
The administrative and criminal charges arose from the alleged anomalies in
the distribution at the LTO Cebu of confirmation certificates, an indispensable
requirement in the processing of documents for the registration of motor
vehicle with the LTO.
Specifically, the private complainants accused Alingasa of selling the
confirmation certificates, supposed to be issued by the LTO free of charge.
This scheme allegedly existed upon Mendoza's assumption in office as
Regional Director of LTO Cebu. They observed that:
(1) Confirmation certificates were sold for the amount of P2,500.00
per pad without official receipt;
(2) Alingasa would usually remit the collections to Erederos who
would, in turn, remit all the collections to Mendoza; 6
(3) The official receipt for the processing of the confirmation
certificates issued to the private complainants acknowledged only the
amount of P40.00 which they paid for each engine, chassis or new
vehicle, as MR. (Miscellaneous Receipt-LTO Form 67);
(4) Said amount was separate and distinct from the P2,500.00
required to be paid for each pad;

(5) The official receipt also served as the basis for the individual
stock/sales reports evaluation of Erederos;7 and
(6) The confirmation certificates processed during the previous
administration were no longer honored; thus, the private
complainants were constrained to reprocess the same by purchasing
new ones.
The NBI/Progress report submitted to the LTO Manila also revealed that the
confirmation certificates were given to the representatives of car dealers,
who were authorized to supply the needed data therein. In the Requisition
and Issue Voucher, it was Roque who received the forms. On August 19,
2002, Cantillas executed an Affidavit of Desi stance on the ground that he
was no longer interested in prosecuting the case.
On September 25, 2002, the Deputy Ombudsman ordered the respondents to
file their respective counter-affidavits. The respondents complied with the
order and made the required submission.
On December 12, 2002, the case was called for preliminary conference. At
the conference, the respondents, thru their counsels, manifested their
intention to submit the case for decision on the basis of the evidence on
record after the submission of their memoranda/position papers.
In the interim, additional administrative and criminal complaints for the same
charges were filed by Rova Carmelotes (Liaison Officer of ZC Trading Center),
Mildred Regidor (Liaison Officer of Grand Ace Commercial), Estrella dela
Cerna (Liaison Officer of JRK Automotive Supply), and Vevencia Pedroza
(Liaison Officer of Winstar Motor Sales) against the respondents. These new
complaints were consolidated with the complaints already then pending.
In their complaints, the new complainants commonly alleged that they had to
pay P2,500.00 per pad to Alingasa before they could be issued confirmation
certificates by the LTO Cebu. Alingasa would give her collections to Erederos
and to Mendoza. When they protested, Erederos and Alingasa pointed to
Mendoza as the source of the instructions. They were also told that the
confirmation certificates processed during the previous administration would
no longer be honored under Mendoza s administration; hence, they had to
buy new sets of confirmation certificates to process the registration of their
motor vehicles with the LTO.
In his counter-affidavit, Mendoza vehemently denied the accusations. He
alleged that the confirmation certificates actual distribution and processing
were assigned to Alingasa; the processing entails the payment of P40.00 per
confirmation certificate, as administrative fee; payment is only made when
the confirmation certificates are filled up and submitted for processing with
the LTO, not upon issuance; and he did not give any instructions to impose
additional fees for their distribution.
He also alleged that the case against him was instigated by Assistant
Secretary Roberto T. Lastimosa of the LTO Head Office so that a certain Atty.
Manuel I way could replace him as Regional Director of the L TO Cebu. 8
Mendoza additionally submitted the affidavits of desistance of Carmelotes
and Dela Cerna. Carmelotes testified that she has no evidence to support her
allegations against Mendoza. Dela Cerna, on the other hand, stated that she
was merely told to sign a document which turned out to be an affidavitcomplaint against the respondents. Subsequently, however, Dela Cerna

executed a second affidavit, retracting her previous statements and narrating

how she was threatened by Peque to sign an affidavit of desistance (1st
affidavit).
Erederos and Alingasa commonly contended that they did not collect,
demand and receive any money from the complainants as payment for the
confirmation certificates.

WHEREFORE, in light of the foregoing premises, the consolidated petitions

are GRANTED and accordingly the assailed Joint Decision dated January 9,
2004 (administrative aspect of the cases filed by the private respondents) is
REVERSED and SET ASIDE.
Consequently, the administrative charges against petitioners are DISMISSED
for lack of merit.

Erederos stated that the case against her was initiated by Huete because she
found several discrepancies in the documents she had processed. According
to her, the present case was Huete s ploy to avoid any liability.

With respect to the assailed Joint Resolution also dated January 9, 2004
(criminal aspect) issued by the public respondent, this Court has no
jurisdiction to review the same.10

For their part, Alingasa stressed that her act of maintaining a control book for
the releases of the confirmation certificate pads negates her liability, while
Peque denied any participation in the distribution and sale of the
confirmation certificates.

The Deputy Ombudsman moved for the reconsideration of the decision, but
the CA denied the motion in its resolution of April 21, 2006. The denial led to
the filing of the present petition.

On January 9, 2004, the Deputy Ombudsman rendered a joint decision on the

administrative aspect of the cases filed against the respondents, and a joint
resolution on the criminal aspect of the cases.
The Deputy Ombudsman s Ruling
In its joint decision, the Deputy Ombudsman found Mendoza, Erederos and
Alingasa guilty of grave misconduct and imposed the penalty of dismissal
from the service. Peque, on the other hand, was only found guilty of simple
misconduct and was meted the penalty of reprimand.
The Deputy Ombudsman believed the complainants allegations that Alingasa
collected P2,500.00 for the issuance of confirmation certificates and,
thereafter, remitted the collections to Erederos and to Mendoza. He relied
largely on the affidavits supporting the respondents guilt. He found the
affidavits and the NBI/Progress report strong enough to establish the
respondents guilt. The Deputy Ombudsman also explained that while the
distribution of confirmation certificates to authorized car dealers is not
prohibited, the demand and the collection of payment during their
distribution are anomalous.
The respondents separately moved for reconsideration, but the Deputy
Ombudsman denied their motions on March 5, 2004.9
The respondents separately appealed to the CA to challenge the rulings
against them.
The CAs Ruling
On November 22, 2005, the CA granted the respondents petition and
reversed the Deputy Ombudsman s joint decision in the administrative
aspect. The CA ruled that the Deputy Ombudsman s finding of grave
misconduct was not supported by substantial evidence because the
affidavits, on which the decision was mainly anchored, were not corroborated
by any other documentary evidence. Additionally, the affiants did not appear
during the scheduled hearings. The CA also found that the affiants failed to
categorically specify that the respondents personally demanded from them
the payment of P2,500.00 -an allegation that the appellate court deemed
material in establishing their personal knowledge. Without this allegation of
personal knowledge, the CA held that the statements in the affidavits were
hearsay and, thus, should not be given any evidentiary weight. The
dispositive portion of the decision reads:

The Petitioners Arguments

The Deputy Ombudsman posits that the evidence adduced by the
complainants satisfied the requisite quantum of proof. He argues that the
complainants personal knowledge can be gleaned from the preface of their
narration; hence, their affidavits could not have been hearsay. Their affidavits
read:
3. That in doing my job, I have noticed and witnessed the following anomalies
concerning the processing of vehicle registration, x x x, as follows:
a. That in order to secure the forms of Confirmation of Certificates,
you have to buy the same at the present price of P2,500.00 per pad
from Catalina Alingasa, an L TO personnel, who will remit her
collections to a certain Marilyn Mendoza Vda. de Erederos, a niece
and the Secretary of the Regional Director, Porferio Mendoza;
b. That Confirmation Certificates processed during previous
administration would not be honored and under such situations, they
would require that the same be reprocessed which means that we
have to buy and use the new forms supplied by the present
administration.11
The Deputy Ombudsman also argues that his joint decision was not solely
based on the complainants affidavits since he also took into account the
NBI/Progress report, which uncovered the alleged anomalies. He posits that
these pieces of evidence, taken together, more than satisfy the required
quantum of proof to hold the respondents administratively liable for grave
misconduct.
The Case for the Respondents
In their respective comments, the respondents separately argue that the
complainants statements in their affidavits lack material details and
particulars, particularly on the time, the date, and the specific transactions.
They commonly alleged that the affidavits, which contained general
averments, and the NBI/Progress report that was based on the same
affidavits, failed to meet the quantum of proof required to hold them
administratively liable.
For his part, Mendoza argues that since the affidavits failed to categorically
state that the complainants personally witnessed the transfer of money from

Alingasa to Erederos and eventually to him, his participation in the

anomalous scheme has not been sufficiently shown; hence, he should not
have been found liable.
The Issue
The case presents to us the issue of whether the CA committed a reversible
error in dismissing the administrative charge against the respondents.
The Court's Ruling
We deny the petition. The CA committed no reversible error in setting aside
the findings and conclusions of the Deputy Ombudsman on the ground that
they were not supported by substantial evidence.

It is aphoristic that a re-examination of factual findings cannot be done

through a petition for review on certiorari under Rule 45 of the Rules of Court
because as earlier stated, this Court is not a trier of facts. xxx The Supreme
Court is not duty-bound to analyze and weigh again the evidence considered
in the proceedings below. This is already outside the province of the instant
Petition for Certiorari.
There is a question of law when the doubt or difference arises as to what the
law is on a certain set of facts; a question of fact, on the other hand, exists
when the doubt or difference arises as to the truth or falsehood of the alleged
facts.17 Unless the case falls under any of the recognized exceptions, we are
limited solely to the review of legal questions.18

Doctrine of conclusiveness of administrative findings of fact is not absolute

b. Rule 45 petition is limited to errors of the appellate court

It is well settled that findings of fact by the Office of the Ombudsman are
conclusive when supported by substantial evidence. 12 Their factual findings
are generally accorded with great weight and respect, if not finality by the
courts, by reason of their special knowledge and expertise over matters
falling under their jurisdiction.

Furthermore, the "errors" which we may review in a petition for review on

certiorari are those of the CA, and not directly those of the trial court or the
quasi-judicial agency, tribunal, or officer which rendered the decision in the
first instance.19 It is imperative that we refrain from conducting further
scrutiny of the findings of fact made by trial courts, lest we convert this Court
into a trier of facts. As held in Reman Recio v. Heirs of the Spouses Agueda
and Maria Altamirano etc. et al.20 our review is limited only to the errors of
law committed by the appellate court, to wit:

This rule was reiterated in Cabalit v. Commission on Audit-Region

VII,13 where we held that: When the findings of fact of the Ombudsman are
supported by substantial evidence, it should be considered as conclusive.
This Court recognizes the expertise and independence of the Ombudsman
and will avoid interfering with its findings absent a finding of grave abuse of
discretion. Hence, being supported by substantial evidence, we find no
reason to disturb the factual findings of the Ombudsman which are affirmed
by the CA.
This rule on conclusiveness of factual findings, however, is not an absolute
one. Despite the respect given to administrative findings of fact, the CA may
resolve factual issues, review and re-evaluate the evidence on record and
reverse the administrative agency s findings if not supported by substantial
evidence. Thus, when the findings of fact by the administrative or quasijudicial agencies (like the Office of the Ombudsman/Deputy Ombudsman) are
not adequately supported by substantial evidence, they shall not be binding
upon the courts.14
In the present case, the CA found no substantial evidence to support the
conclusion that the respondents are guilty of the administrative charges
against them. Mere allegation and speculation is not evidence, and is not
equivalent to proof.15 Since the Deputy Ombudsmans findings were found
wanting by the CA of substantial evidence, the same shall not bind this Court.
Parameters of a judicial review under a Rule 45 petition
a. Rule 45 petition is limited to questions of law
Before proceeding to the merits of the case, this Court deems it necessary to
emphasize that a petition for review under Rule 45 is limited only to
questions of law. Factual questions are not the proper subject of an appeal by
certiorari. This Court will not review facts, as it is not our function to analyze
or weigh all over again evidence already considered in the proceedings
below. As held in Diokno v. Hon. Cacdac, 16 a re-examination of factual
findings is outside the province of a petition for review on certiorari to wit:

Under Rule 45 of the Rules of Court, jurisdiction is generally limited to the

review of errors of law committed by the appellate court. The Supreme Court
is not obliged to review all over again the evidence which the parties
adduced in the court a quo. Of course, the general rule admits of exceptions,
such as where the factual findings of the CA and the trial court are conflicting
or contradictory.
In Montemayor v. Bundalian,21 this Court laid down the guidelines for the
judicial review of decisions rendered by administrative agencies in the
exercise of their quasi-judicial powers, as follows:
First, the burden is on the complainant to prove by substantial evidence the
allegations in his complaint. Substantial evidence is more than a mere
scintilla of evidence. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion, even if other minds
equally reasonable might conceivably opine otherwise. Second, in reviewing
administrative decisions of the executive branch of the government, the
findings of facts made therein are to be respected so long as they are
supported by substantial evidence. Hence, it is not for the reviewing court to
weigh the conflicting evidence, determine the credibility of witnesses, or
otherwise substitute its judgment for that of the administrative agency with
respect to the sufficiency of evidence.
Third, administrative decisions in matters within the executive jurisdiction
can only be set aside on proof of gross abuse of discretion, fraud, or error of
law. These principles negate the power of the reviewing court to re-examine
the sufficiency of the evidence in an administrative case as if originally
instituted therein, and do not authorize the court to receive additional
evidence that was not submitted to the administrative agency concerned.
[emphases ours]
The present petition directly raises, as issue, the propriety of the CA s

reversal of the Deputy Ombudsman s decision that found the respondents

guilty of grave misconduct. While this issue may be one of law, its resolution
also requires us to resolve the underlying issue of whether or not substantial
evidence exists to hold the respondents liable for the charge of grave
misconduct. The latter question is one of fact, but a review is warranted
considering the conflicting findings of fact of the Deputy Ombudsman and of
the CA. Accordingly, we now focus on and assess the findings of fact of the
Deputy Ombudsman and of the CA for their merits.

witnessed the anomalous sale transaction concerning the confirmation

certificates. Without going into details, they uniformly allege that to secure
the confirmation certificates, an amount of P2,500.00 would be paid to
Alingasa, an L TO personnel, "who will remit her collections to a certain
Marilyn Mendoza vda. Erederos, a niece and the Secretary of the Regional
Director, Porferio Mendoza."25 While the payment to Alingasa might be
considered based on personal knowledge, the alleged remittance to Erederos
and Mendoza -on its face - is hearsay.

The Deputy Ombudsmans appreciation of evidence

Any evidence, whether oral or documentary, is hearsay if its probative value

is not based on the personal knowledge of he witness

The Deputy Ombudsman found the respondents guilty of grave misconduct

based on the affidavits submitted by the complainants and the NBI/Progress
report. In giving credence to the affidavits, the Deputy Ombudsman ruled
that the complainants have amply established their accusations by
substantial evidence.
The CAs appreciation of evidence
The CA, on the other hand, reversed the Deputy Ombudsman s findings and
ruled that no substantial evidence exists to support the latters decision as
the affidavits upon which said decision was based are hearsay evidence. It
found that the affidavits lack the important element of personal knowledge
and were not supported by corroborating evidence.
We agree with the CA. The findings of fact of the Deputy Ombudsman are not
supported by substantial evidence on record.
Substantial evidence, quantum of proof in administrative cases
Substantial evidence is defined as such amount of relevant evidence which a
reasonable mind might accept as adequate to support a conclusion. It is more
than a mere scintilla of evidence. 22 The standard of substantial evidence is
satisfied when there is reasonable ground to believe, based on the evidence
submitted, that the respondent is responsible for the misconduct complained
of. It need not be overwhelming or preponderant, as is required in an ordinary
civil case,23 or evidence beyond reasonable doubt, as is required in criminal
cases, but the evidence must be enough for a reasonable mind to support a
conclusion.
Section 27 of The Ombudsman Act of 198924 provides that:
Findings of fact by the Officer of the Ombudsman when supported by
substantial evidence are conclusive. Any order, directive or decision imposing
the penalty of public censure or reprimand, suspension of not more than one
(1) month's salary shall be final and unappealable. [emphasis ours]
The only pieces of evidence presented by the complainants to establish the
respondents' guilt of the act charged are: (1) their complaint-affidavits and
the (2) NBl/Progress report. As correctly found by the CA, these pieces of
evidence do not meet the quantum of proof required in administrative cases.
The Evidence Against Mendoza, Erederos and Alingasa
i. Private complainants affidavits
The affidavits show that the complainants lack personal knowledge of the
participation of Mendoza and Erederos in the allegedly anomalous act. These
affidavits indicate that the complainants have commonly noticed and

It is a basic rule in evidence that a witness can testify only on the facts that
he knows of his own Rersonal knowledge, i.e. those which are derived from
his own perception.26 A witness may not testify on what he merely learned,
read or heard from others because such testimony is considered hearsay and
may not be received as proof of the truth of what he has learned, read or
heard.27 Hearsay evidence is evidence, not of what the witness knows
himself but, of what he has heard from others; it is not only limited to oral
testimony or statements but likewise applies to written statements, such as
affidavits.28
The records show that not one of the complainants actually witnessed the
transfer of money from Alingasa to Erederos and Mendoza. Nowhere in their
affidavits did they specifically allege that they saw Alingasa remit the
collections to Erederos. In fact, there is no specific allegation that they saw or
witnessed Erederos or Mendoza receive money. That the complainants
alleged in the preface of their affidavits that they "noticed and witnessed" the
anomalous act complained of does not take their statements out of the
coverage of the hearsay evidence rule. Their testimonies are still "evidence
not of what the witness knows himself but of what he has heard from
others."29 Mere uncorroborated hearsay or rumor does not constitute
substantial evidence.30
The affidavits also show that the complainants did not allege any specific act
of the respondents. All that the affidavits allege is a description of the
allegedly anomalous scheme and the arrangement whereby payments were
to be made to Alingasa. There is no averment relating to any "personal
demand" for the amount ofP2,500.00.
Based on these considerations, we cannot conclude that the complainants
have personal knowledge of Erederos' and Mendoza's participation in the
anomalous act. At most, their personal knowledge only extends to the acts of
Alingasa who is the recipient of all payments for the processing of
confirmation certificates. This situation, however, is affected by the
complainants'
failure
to
specify
Alingasa's
act
of
personally
demanding P2,500.00 -a crucial element in determining her guilt or
innocence of the grave misconduct charged.
With respect to Pedroza's allegation in her affidavit 31 that Alingasa and
Erederos categorically told them that it was Mendoza who instructed them to
collect the P2,500.00 for the confirmation certificates, we once again draw a
distinction between utterances or testimonies that are merely hearsay in
character or "non-hearsay," and those that are considered as legal hearsay.

Non-hearsay v. legal hearsay, distinction

To the former belongs the fact that utterances or statements were made; this
class of extrajudicial utterances or statements is offered not s an assertion to
prove the truth of the matter asserted, but only as to the fact of the
utterance made. The latter class, on the other hand, consists of the truth of
the facts asserted in the statement; this kind pertains to extrajudicial
utterances and statements that are offered as evidence of the truth of the
fact asserted.
The difference between these two classes of utterances lies in the
applicability of the rule on exclusion of hearsay evidence. The first class, i.e.
the fact that the statement was made, is not covered by the hearsay rule,
while the second class, i.e. the truth of the facts asserted in the statement, is
covered by the hearsay rule. Pedroza's allegation belongs to the first class;
hence, it is inadmissible to prove the truth of the facts asserted in the
statement. The following discussion, made m Patula v. People of the
Philippines32 is particularly instructive:
Moreover, the theory of the hearsay rule is that when a human utterance is
offered as evidence of the truth of the fact asserted, the credit of the assertor
becomes the basis of inference, and, therefore, the assertion can be received
s evidence only when made on the witness stand, subject to the test of crossexamination. However, if an extrajudicial utterance is offered, not as an
assertion to prove the matter asserted but without reference to the truth of
the matter asserted, the hearsay rule does not apply. For example, in a
slander case, if a prosecution witness testifies that he heard the accused say
that the complainant was a thief, this testimony is admissible not to prove
that the complainant was really a thief, but merely to show that the accused
uttered those words. This kind of utterance is hearsay in character but is not
legal hearsay. The distinction is, therefore, between (a) the fact that the
statement was made, to which the hearsay rule does not apply, and (b) the
truth of the facts asserted in the statement, to which the hearsay rule
applies. [citations omitted]
Failure to identify the affidavits renders them inadmissible under the hearsay
evidence rule
We additionally note that the affidavits were never identified by the
complainants. All the allegations contained therein were likewise
uncorroborated by evidence, other than the NBI/Progress report.
In Tapiador v. Office of the Ombudsman,33 we had the occasion to rule on the
implications of the affiants' failure to appear during the preliminary
investigation and to identify their respective sworn statements, to wit:
Notably, the instant administrative complaint was resolved by the
Ombudsman merely on the basis of the evidence extant in the record of OMBADM-0-94-0983. The preliminary conference required under Republic Act No.
6770 was dispensed with after the nominal complainant, then BID Resident
Ombudsman Ronaldo P. Ledesma, manifested on July 29, 1996 that he was
submitting the case for resolution on the basis of the documents on record
while the petitioner agreed to simply file his memorandum. Consequently,
the only basis for the questioned resolution of the Ombudsman dismissing
the petitioner from the government service was the unverified complaintaffidavit of Walter H. Beck and that of his alleged witness, Purisima Terencio.

A thorough review of the records, however, showed that the subject affidavits
of Beck and Terencio were not even identified by the respective affiants
during the fact-finding investigation conducted by the BID Resident
Ombudsman at the BID office in Manila. Neither did they appear during the
preliminary investigation to identify their respective sworn statements
despite prior notice before the investigating officer who subsequently
dismissed the criminal aspect of the case upon finding that the charge
against the petitioner "was not supported by any evidence." Hence, Beck's
affidavit is hearsay and inadmissible in evidence. On this basis alone, the
Administrative Adjudication Bureau of the Office of the Ombudsman should
have dismissed the administrative complaint against the petitioner in the first
instance. (emphasis supplied)
For the affiants' failure to identify their sworn statements, and considering
the seriousness of the charges filed, their affidavits must not be accepted at
face value and should be treated as inadmissible under the hearsay evidence
rule.
ii. NBI/Progress report
With regard to the NBI/Progress report submitted by the complainants as
corroborating evidence, the same should not be given any weight. Contrary
to the Ombudsman's assertions, the report cannot help its case under the
circumstances of this case as it is insufficient to serve as substantial basis.
The pertinent portion of this report reads:
04. P/Sinsp. JESUS KABIGTING and Senior TRO ALFONSO ALIANZA visited
JAGNA District Office at Jagna, Bohol wherein they were able to conduct
interview with MR. RODOLFO SANTOS, Officer-In-Charge who has assumed his
new post only in February 2002. During the conduct of the interview, Mr.
SANTOS revealed that the anomalous Dos-por-Dos transactions have been
prevented and eliminated when the previous District Manager in the person
of Mr. LEONARDO G. OLAIVAR, who was transferred to Tagbilaran District
Office allegedly on a floating status and under the direct control and
supervision of its District Manager, Mr. GA VINO PADEN, Mr. SANTOS
allegations of the existence of "Dos-por-Dos" transactions were supported by
the records/documents gathered of which the signatures of Mr. OLAIVAR
affixed thereof. Copies are hereto attached marked as Annexes D-D-6.
xxxx
06. Submitted Affidavits of Ms. MARICAR G. HUETE, a resident of Lahug, Cebu
City and liaison Officer of GCY Parts, Kabancalan Mandaue City and Mr.
ERNESTO R. CARTILLAS a resident of Basak, Mandaue City and liaison Officer
of Isuzu Cebu, Inc. in Jagobiao, Mandaue City stated among others and both
attested that: Annexes "E-E-1."
In order to secure the forms of Confirmation of Certificates, you have to buy
the same at the present cost ofP2,500.00 per pad from CATALINA ALINGASA,
an LTO Personnel, who will remit her collections to a certain MARILYN
MENDOZA V da De EREDEROS, a niece and secretary of the Regional
Director, PORFERIO MENDOZA.34
This quoted portion shows that it was based on complainant Huete's and
Cantillas' affidavits. It constitutes double hearsay because the material facts
recited were not within the personal knowledge of the officers who conducted
the investigation. As held in Africa, et al. v. Caltex Phil.) Inc., et al., 35 reports

of investigations made by law enforcement officers or other public officials

are hearsay unless they fall within the scope of Section 44, Rule 130 of the
Rules of Court, to wit: The first question before Us refers to the admissibility
of certain reports on the fire prepared by the Manila Police and Fire
Departments and by a certain Captain Tinio of the Armed Forces of the
Philippines. xxx.
xxxx
There are three requisites for admissibility under the rule just mentioned: (a)
that the entry was made by a public officer, or by another person specially
enjoined by law to do so; (b) that it was made by the public officer in the
performance of his duties, or by such other person in the performance of a
duty specially enjoined by law; and (c) that the public officer or other person
had sufficient knowledge of the facts by him stated, which must have been
acquired by him personally or through official information. (Moran, Comments
on the Rules of Court, Vol. 3 [1957] p. 383.)
Of the three requisites just stated, only the last need be considered here.
Obviously the material facts recited in the reports as to the cause and
circumstances of the fire were not within the personal knowledge of the
officers who conducted the investigation. Was knowledge of such facts,
however, acquired by them through official information? xxx.
The reports in question do not constitute an exception to the hearsay rule;
the facts stated therein were not acquired by the reporting officers through
official information, not having been given by the informants pursuant to any
duty to do so. [emphases ours]
The NBI/Progress report, having been submitted by the officials in the
performance of their duties not on the basis of their own personal
observation of the facts reported but merely on the basis of the complainants
affidavits, is hearsay. Thus, the Deputy Ombudsman cannot rely on it.
Non-applicability of strict technical rules of procedure in administrative or
quasi-judicial bodies is not a license to disregard certain fundamental
evidentiary rules
While administrative or quasi-judicial bodies, such as the Office of the
Ombudsman, are not bound by the technical rules of procedure, this rule
cannot be taken as a license to disregard fundamental evidentiary rules; the
decision of the administrative agencies and the evidence it relies upon must,
at the very least, be substantial. that:
In Lepanto Consolidated Mining Company v. Dumapis, 36 we ruled that:
While it is true that administrative or quasi-judicial bodies like the NLRC are
not bound by the technical rules of procedure in the adjudication of cases,
this procedural rule should not be construed as a license to disregard certain
fundamental evidentiary rules. The evidence presented must at least have a
modicum of admissibility for it to have probative value. Not only must there
be some evidence to support a finding or conclusion, but the evidence must
be substantial. Substantial evidence is more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.
Conclusion
With a portion of the complainants affidavits and the NBI/Progress report

being hearsay evidence, the only question that remains is whether the
respondents conduct, based on the evidence on record, amounted to grave
misconduct, warranting their dismissal in office.
Misconduct is a transgression of some established and definite rule of action,
more particularly, unlawful behavior or gross negligence by a public
officer.37 The misconduct is considered as grave if it involves additional
elements such as corruption or willful intent to violate the law or to disregard
established rules, which must be proven by substantial evidence; otherwise,
the misconduct is only simple. Corruption, as an element of grave
misconduct, consists in the act of an official or fiduciary person who
unlawfully and wrongfully uses his station or character to procure some
benefit for himself or for another person, contrary to duty and the rights of
others.38
Based on these rulings, the Deputy Ombudsman failed to establish the
elements of grave misconduct.1wphi1 To reiterate, no substantial evidence
exists to show that Erederos and Mendoza received collected payments from
Alingasa Their involvement or complicity in the allegedly anomalous scheme
cannot be justified under the affidavits of the complainants and the
NBI/Progress report, which are both hearsay.
With respect to Alingasa, in view of the lack of substantial evidence showing
that she personally demanded the payment of P2,500.00 a crucial factor in
the wrongdoing alleged we find that the elements of misconduct, simple or
grave, to be wanting and unproven.
WHEREFORE, in view of the foregoing, we hereby AFFIRM the assailed
decision dated November 22, 2005 and the resolution dated April 21, 2006 of
the Court of Appeals in CA-G.R. SP Nos. 83149, 83150 and 83576.
SO ORDERED.

THE PEOPLE OF THE PHILIPPINES, G.R. No. 177147

Appellee, [Formerly G.R. No. 147313]
Present:
SANDOVAL-GUTIERREZ,*
- versus - CARPIO,**
CARPIO MORALES,
TINGA, and
JOEMARIE CERILLA, VELASCO, JR., JJ.
Appellant.
Promulgated:
November 28, 2007
x----------------------------------------------------------------------------x
DECISION
TINGA, J.:

For automatic review is the Decision[1] of the Court of Appeals[2] dated 26

October 2006 in CA-G.R. CR-HC No. 00032 which affirmed with modification
the Decision[3] of the Regional Trial Court (RTC) of Iloilo City, Branch 23 dated
15 August 2000 in Criminal Case No. 496502 finding appellant Joemarie
Cerilla guilty beyond reasonable doubt of the crime of murder and sentencing
him to suffer the penalty of reclusion perpetua.

On 6 July 1998, an Information was filed against appellant charging him of

the crime of murder committed as follows:
That on or about April 24, 1998, in the Municipality of
Leganes, Province of Iloilo, Philippines and within the
jurisdiction of this Honorable Court, the above-named
accused, armed with a firearm with deliberate intent and
decided purpose to kill and by means of treachery, did then
and there willfully, unlawfully and feloniously shoot Alexander
Parreo with the firearm which the accused was then provided,
hitting and inflicting pellet wound at the right back portion of
his body which caused his death.
CONTRARY TO LAW.[4]

The prosecutions evidence shows that at around 6:00 pm on 24 April 1998,

the victim, Alexander Parreo (Alexander), his 14-year old daughter, Michelle,
and neighbor, Phoebe Sendin (Sendin), went to the house of appellant. They
were cordially welcomed and entertained by appellant and his wife.[5] An
hour later, a blackout occurred. At this time, Alexander sought permission
from the couple to leave, which the latter acknowledged.[6] On their way
home, Michelle was walking ahead of Alexander with the latter closely
following his daughter. Suddenly, after walking for about 100 meters

the middle-back portion of the body. Seven (7) pellets were recovered on the
from appellants house, Michelle heard an explosion. Michelle immediately

muscle of the upper and middle abdominal wall.[15]

turned her back and saw appellant pointing a gun at Alexander who, at that
moment, was staggering towards her.[7] Sendin, who was also with

The defenses evidence consists of the testimonies of appellant himself and of

Alexander and Michelle, did not look back but instead ran away and

his wife, Madoline, his stepdaughter, Franlin, PO1 Manolito Javelora, PO3

proceeded to the house of Mrs. Parreo.[8] Meanwhile, Michelle was cuddling

Alberto Sarmiento, and PO3 Wilson Allona. Appellant interposed alibi as his

Alexander beside the road when the latter repeatedly told her that it was

main defense. He claimed that Alexander, together with his daughter and

appellant who shot him.[9] Twenty minutes later, Alexanders other daughter,

Sendin, had gone to his house on 24 April 1998 at around 6:00 p.m. where

Novie Mae, arrived; she was also told by Alexander at that moment that it

they

was appellant who shot him.[10]

conversation when a blackout occurred. Alexander then asked permission to

were

welcomed

and

offered

snacks.[16] They

were

having

leave.After the visitors had left, appellant ordered his stepdaughter Franlin to
SPO3 Frederick Dequito (SPO3 Dequito) and other police officers rushed to

buy candle at the store across their house. Appellant and Madoline posted

the crime scene and helped carry Alexander to an ambulance. SPO3 Dequito

themselves at their doorway holding a flashlight to light Franlins path. Upon

was able to ask Alexander who shot him to which he answered Pato. Pato is

Franlins

an alias by which appellant is known.[11]

explosion and he immediately closed the door. Later, the policemen

Alexanders wife, Susan, who rushed to the hospital was also told by
Alexander that it was appellant who shot him.[12] Alexander died the
following day.[13]

Dr. Tito D. Doromal, Philippine National Police medico-legal officer, performed

an autopsy on the body of Alexander. The autopsy report stated the cause of
death to be hemorrhage secondary to pellet wounds.[14] Testifying on his
report, Dr. Doromal explained that Alexander died from a gunshot wound
which penetrated the ribs and lacerated the right lobe of the liver, colon,
stomach, duodenum, and right kidney. The entrance wound was located at

return

to

the

house,

appellant

heard

an

went to his house and told him that he was a suspect in the shooting of

presence

of

treachery

in

qualifying

the

crime

to

Alexander and was then brought to the police station.[17] The following day,

murder because the victim was unarmed and walking on his way

he was subjected to paraffin test the result of which turned out to be

home when he was suddenly and unexpectedly shot from behind by

negative.[18]

appellant.[23] The trial court ruled that appellants alibi and denial could not
prevail over the positive testimonies of credible witnesses.[24] Moreover, it

Appellants testimony was corroborated by Madoline and Franlin. PO1 Javelora

observed that appellant was not able to prove the impossibility of his

declared that when he asked Alexander who shot him, the latter did not

presence at the crime scene which could have proven his alibi.[25]

answer.[19]Likewise, PO3 Sarmiento and Allona stated that when they went
to the hospital to interrogate Alexander, the latter could not give a definite

In view of the penalty of reclusion perpetua imposed on appellant, the case

answer as to who shot him.[20]

was initially elevated to this Court for review. However, pursuant to our ruling
in People v. Mateo,[26] the case was referred to the Court of Appeals.

On 15 August 2000, the RTC found appellant guilty beyond reasonable doubt
of murder and sentenced him to suffer the penalty of reclusion perpetua. The
The appellate court affirmed the trial courts ruling but modified the award of
dispositive portion of the decision read:
moral damages from Thirty Thousand Pesos to Fifty Thousand Pesos.
WHEREFORE, premises considered, and in the light of the
facts obtaining and the jurisprudence aforecited, judgement
is hereby rendered finding the accused GUILTY beyond
reasonable doubt of the crime of MURDER, hereby sentencing
the
said
accused
to
the
penalty
of RECLUSION
PERPETUA pursuant to Sec. 6 of Republic Act No. 7659[,]
amending Article 248 of the Revised Penal Code. The said
accused is further condemned to indemnify the surviving
heirs of the deceased, Alexander Parreo, the sum
of P257,774.75 by way of actual damages; the amount
of P30,000.00 by way of moral damages and the sum
of P50,000.00 by way of death compensation. The accused
who is detained is entitled to be credited in full with the
entire period of his preventive detention. The Jail
Warden, Iloilo Rehabilitation Center is ordered to remit the
said accused to the National Penitentiary at the earliest
opportunity.

[27] Hence, the instant appeal.

In a Resolution dated 16 July 2007, the Court required the parties to

simultaneously submit their respective supplemental briefs if they so desired.
[28] Both parties manifested that they would adopt their briefs filed before
the appellate court.[29] Thereafter, the case was deemed submitted for
decision.
Appellant argues that the trial court erred in giving full credence to the
testimony of the prosecution's eyewitness, Michelle, as well as the dying

SO ORDERED.[21]
declaration of Alexander considering that the circumstances under which the
The trial court regarded the victims dying declaration as the most telling

crime was committed rendered the identification of the gunman impossible.

evidence pointing to appellant as the assailant.[22] It appreciated the

This argument essentially challenges the credibility of the witnesses,

including the eyewitness, whose testimonies were relied upon by the trial
court in convicting appellant.Basic is the principle that the findings of fact of
a trial court, its calibration of the testimonies of the witnesses and its
assessment of the probative weight thereof, as well as its conclusions
anchored on said findings are accorded high respect, if not conclusive effect.
This is because the

trial court has the unique opportunity to observe the demeanor of a witness
and is in the best position to discern whether they are telling the truth. This
rule holds true especially when the trial court's findings have been affirmed
by the appellate court.[30]

Appellants authorship of the crime was proven by the positive identification

of an eyewitness and the victims dying declaration.
The prosecution presented Michelle, who categorically identified appellant as
the one who shot Alexander, viz:
Q: While you and your father were walking towards
home, did you remember anything unusual that
happened?
A: Yes, Maam.
Q: What was that?
A: I heard an explosion.
Q: Where were you in relation to your father when
you heard that shot?
A: I was in front of my Daddy and he was at my back.
Q: You said you heard a shot, what did you do when
you heard a shot?
A: When I heard the shot, I turned back and I saw
Joemarie pointing to my Dad.
COURT:
Q: What did he point towards your Dad?
A: Firearm.

to the material facts which concern the cause and circumstances of the
PROSECUTOR PADILLA:
killing and which is uttered under a fixed belief that death is impending and is
Q: You said Joemarie was pointing a firearm to your
father. Was it [a] long or short firearm?
A: About 11 inches.

certain to follow immediately, or in a very short time, without an opportunity

of retraction and in the absence of all hopes of recovery. In other words, it is a

Q: After you saw Joemarie pointing a firearm to your

father, what happened next?
A: I saw my father staggering towards me and I saw
Joemarie Cerilla ran.
Q: Where was he going?
A: Maybe towards his house.[31]

statement made by a person after a mortal wound has been inflicted, under a
belief that death is certain, stating the facts concerning the cause and
circumstances surrounding his/her death.[36]

xxxx
As an exception to the rule against hearsay evidence, a dying declaration or
Q: If this Joemarie Cerilla is inside the Courtroom, can
you identify him?
A: Yes, Maam.

ante mortem statement is evidence of the highest order and is entitled to

utmost

Q: Please point to him. (Witness pointing to the

accused Joemarie Cerilla).[32]

credence

since

no

impending death would make a careless and

person
false

aware

of

his

accusation.[37] It

is thus admissible to provide the identity of the accused and the deceased,
Michelles account of how her father was shot by appellant was corroborated

to show thecause of death of the deceased,

by the post-mortem examination which reveals that the entrance wound is

the circumstances under which the assault was made upon him. The reasons

located at the back of the victim.[33] In the same vein, the medico-legal

for its admissibility is necessity and

expert concluded that the gunshot was fired at a close range, as evidenced
by the presence of a power burn measuring four (4) centimeters in diameter
surrounding the periphery of the wound [34] and penetrating his internal
organs.[35]

Significantly, the eyewitnesss positive identification of appellant as the

perpetrator of the crime is fully supported the victims dying declaration.

A dying declaration is a statement made by the victim of homicide, referring

and

trustworthiness. Necessity,

because

the

declarants

death

renders

it

made, the declarant must be under the consciousness of an impending

impossible his taking the witness stand, and it often happens that there is no

death. The rule is that, in order to make a dying declaration admissible, a

other equally satisfactory proof of the crime; allowing it, therefore, prevents a

fixed belief in inevitable and imminent death must be entered by the

failure of justice. And trustworthiness, because the declaration is made in

declarant. It is the belief in impending death and not the rapid succession of

extremity, when the party is at the point of death and when every motive to

death in point of fact that renders the dying declaration admissible. It is not

falsehood is silenced and the mind is induced by the most powerful

necessary that the approaching death be presaged by the personal feelings

considerations to speak the truth. The law considers the point of death as a

of the deceased. The test is whether the declarant has abandoned all hopes

situation so solemn and awful as creating an obligation equal to that which is

of survival and looked on death as certainly impending.[41] Third, the

imposed by an oath administered in court.[38]

declarant is competent as a witness. The rule is that where the declarant

would not have been a competent witness had he survived, the proffered

Of the doctrines that authorize the admission of special classes of hearsay,

declarations will not be admissible. Accordingly, declarations made by a child

the doctrine relating to dying declarations is the most mystical in its theory

too young to be a competent witness or by a person who was insane or

and, traditionally, among the most arbitrary in its limitations. In the United

incapable of understanding his own statements by reason of partial

States, the notion of the special likelihood of truthfulness of deathbed

unconsciousness are not admissible in evidence.[42] Thus, in the absence of

statements was widespread long before the recognition of a general rule

evidence showing that the declarant could not have been competent to be a

against hearsay in the early 1700s. Not surprisingly, nearly as soon as we

witness had he survived, the presumption must be sustained that he would

find a hearsay rule, we also find an exception for dying declarations.[39]

have been competent.[43] Fourth, the declaration must be offered in a

criminal case for homicide, murder, or parricide, in which the declarant is the

Four requisites must concur in order that a dying declaration may be

victim.[44] Anent this requisite, the same deserves no further elaboration as,

admissible,

and

in fact, the prosecution had caused its witnesses to take the stand and testify

surrounding circumstances of the declarant's death. This refers not only to

in open court on the substance of Alexanders ante mortem statement in the

the facts of the assault itself, but also to matters both before and after the

present criminal case for murder.

thus: first, the

declaration

must

concern

the

cause

assault having a direct causal connection with it. Statements involving the
nature of the declarants injury or the cause of death; those imparting

The victim communicated his ante-mortem statement to three persons who

deliberation and willfulness in the attack, indicating the reason or motive for

testified with unanimity that they had been told by the victim himself that it

the killing; justifying or accusing the accused; or indicating the absence of

was appellant who shot him. Michelle recounted:

cause for the act are admissible.[40] Second, at the time the declaration was

Q: You said your father moved towards you, what

happened next?
A: I approached my father and cuddled him.
Q: What happened next?
A: While I was cuddling my father he said, Day, it was
Joemarie who shot me.
Q: How many time he said he was shot?
A: Not once but about 10 times.[45]

sitting on the ground and supporting himself not to

fall.
A: Yes, Maam.
Q: Why, [sic] what did you observe?
A: My father was supporting himself in order that
blood will not [ooze] from his body and his body will
not fall down.[46]

SPO3 Dequito, who responded immediately to the crime scene, corroborated

Shortly thereafter, Novie Mae arrived and was told by Alexander that it was
the testimonies of the Alexanders children, to wit:
appellant who opened fire at him:
Q: When you reached Confessor Street, what
happened?
A: I saw that my elder sister was assisting my father.

Q: Whats the name of your sister?

A: Michelle.

Q: So, what did you do when you arrived at the crime

scene?
A: We advised the group to carry Mr. Parreo to the
ambulance because the ambulance was on the way
and after our mobile arrived, the ambulance arrived
also [sic] so we carried Mr. Parreo to be brought to
the hospital.

COURT:

COURT:

Proceed.

Q: Meaning you loaded

ambulance?
A: Yes, Your Honor.

COURT:

FISCAL:
Q: When you saw your sister Michelle assisting your
father, what [sic] happened next?
A: And I immediately went near my father and asked
him who shot him and he answered it was Joemarie
Cerilla who shot him.
Q: Before you reached your father, did you observe
his physical appearance of what happened to him?
A: Yes, Maam, he was supporting with his arm and
when I asked him he still made a response.
Q: You said [that] before you approached your
father[,] you saw him supporting his body, what was
his position at that time?
A: He was in a position of lying with his hand on the
road and my sister was assisting him.

the

victim

the

Q: And after he was loaded, what did you do?

A: Before the ambulance left the area, I questioned
the victim who shot him and he answered Alias Pato. I
am referring to Joemarie Cerilla, the accused.
Q: The accused Cerilla, Alias Pato?
A: Yes, Your Honor.
PROSECUTOR:
Q: Can you remember the exact words uttered by the
victim when you asked him who shot him?
A: He answered me that: I questioned him, Who shot
you? and he answered that it was Cerilla and I further
asked him The husband of Madoline and he answered
Yes, Alias Pato, the husband of Madoline.[47]

xxx
Likewise, Alexanders wife, Sonia, testified:
Q: Were you able to observe why your father was

into

Q: You said from your house when you were told by

the girls that your husband was shot, what did you
do?
A: I looked for a taxi and proceeded to the hospital.
xxx
Q: When you arrived at the hospital, where did you go
first?
A: To my husband.
xxx

sure because it was dark.[51] These statements cannot be construed as a

Q: When you reached that hospital and your own
mother led you to where Alexander was, in what part
of the hospital did you first see him.
A: Outside the operating room.
Q: What was the situation of your husband when you
first saw him?
A: He was leaning on his side and many nurses
attending to him and saying araguy.

categorical statement of the victim denying knowledge as to the identity of

his assailant. It can be recalled that at the time Alexander was being
questioned, he was already being readied for surgery. At that point, he was
understandably no longer fit to respond to questions. Between these two
seemingly conflicting testimonies, it is the positive identification made by

xxx
Alexander in his dying declaration which must be sustained.
Q: Between you and your husband who spoke first?
A: My husband.
Q: What were the exact words stated by your
husband?
A: He told me that it was Joemarie who shot him.[48]

Appellant insists that there was an inherent impossibility in identifying the

assailant with clarity since there was a power blackout at the time of the
commission of the crime and was then a moonless night.

These statements comply with all the requisites of a dying declaration. First,
Alexanders declaration pertains to the identity of the person who shot

The fact that the crime was committed during a blackout does not cast doubt

him. Second, the fatal quality and extent of the injuries[49] he suffered

on Alexanders and Michelles positive identification of appellant. While the

underscore the imminence of his death as his condition was so serious that

place of occurrence was dark, this did not prevent the Alexander or Michelle

his demise occurred the following morning after a thirteen (13)-hour

from identifying the assailant, especially since the shot was delivered at close

operation. Third, he would have been competent to testify had he survived.

range.

Fourth, his dying declaration is offered in a criminal prosecution for murder

where he was the victim.

Other police officers were presented by the defense to refute the dying
declaration. PO1 Javelora alleged that he happened to pass by the crime
scene and saw a young girl crying. The girl led him to her father who was
sitting on the roadside. He asked the victim who shot him but he did not get
any reply.[50] PO3 Allona and Sarmiento arrived at the hospital and
questioned Alexander as to who shot him but the latter told them, I am not

In dismissing appellants contention, the trial court rationalized:

x x x This argument deserves scant consideration. In the case
of People v. Hillado, G.R. No. 122838[,] promulgated on May
24, 1999[,] citing the case of People v. Oliano, visibility at
nighttime is possible not only at the exact minute and date
when the moon is full as indicated in the calendar. Thus, a
persons nocturnal eyesight, is not necessarily diminished just
because there is no illumination from the moon, because it is
a fact that our eyes can actually adjust to the darkness so
that we can still see objects clearly even without sufficient
lighting. In the case at bar, it would not be so hard for
Michelle to identify a persons fact especially if the latter as in
the present case was barely two (2) arms length away from
them which is confirmed by the presence of gunpowder
nitrates on the body of the victim. We stress, that the normal

reaction of the person is to direct his sight towards the source

of a startling [shot] or occurrence. As held in People v. Dolar,
the most natural reaction of the victims in criminal violence is
to strive to see the looks and faces of their assailants and to
observe the manner in which the crime is committed. Added
to this is the fact that the accused Joemarie Cerilla and the
victim
Alexander
Parreo
have known each other quite well before the incident so that
they became familiar with each others face and physical
features. x x x [52]

rejected the result of the paraffin test in light of the positive identification of
appellant.

The trial court held that the killing was qualified by treachery because
Alexander, who was unarmed, was suddenly and unexpectedly shot from
behind by appellant without any risk to the latter from any defense which the

Moreover, the prosecution witnesses were not shown to be impelled by ill

former might make. There was no opportunity given to Alexander to repel the

motive to testify falsely against appellant. Besides, Susan, Michelle and Novie

assault or offer any defense of his person.There was not the slightest

Mae, being immediate relatives of the deceased, would naturally be

provocation on his part.[57] We agree with the findings of the trial court. The

interested in having the real culprit punished.[53]

presence of treachery was evident in the execution of the crime. Appellant

suddenly, and without warning, shot Alexander from his back.

The positive identification of appellant must necessarily prevail over his alibi.
[54] It was not physically impossible for appellant to have been present at
Under Article 248 of the Revised Penal Code, as amended by Republic Act No.
the scene of the crime at the time of its commission. The distance of his
7659, murder is punishable with reclusion perpetua to death. Because the
house, where he supposedly was, from the locus criminis is only 120-150
killing of Alexander, although qualified by treachery, was not attended by any
meters, more or less.[55]
other aggravating circumstance, the proper imposable penalty is reclusion
perpetua.
Appellant counters that there was absence of any motive on his part to kill
the victim; that it was not clearly proven that he fired a gun, based on the
We deem it proper to further impose exemplary damages in the amount
paraffin test; and that he appeared calm and composed and showed no
of P25,000.00 which is recoverable in the presence of an aggravating
indication of guilt when he was invited by the police officers shortly after the
circumstance, whether qualifying or ordinary, in the commission of the crime.
commission of the crime.
[58]
WHEREFORE, the Decision of the Court of Appeals dated 26 October 2006,
Time and again, we have ruled that a negative finding on paraffin test is not a
affirming with modification the Regional Trial Court Judgment dated 15
conclusive proof that one has not fired a gun because it is possible for a
August 2000 finding appellant, Joemari Cerilla, guilty beyond reasonable
person to fire a gun and yet bear no traces of nitrates or gunpowder, as when
doubt of murder, is AFFIRMED with the MODIFICATION that appellant is
the culprit washes his hands or wears gloves.[56] The trial court correctly
further ordered to pay the heirs of Alexander Parreo P25,000.00 as exemplary

damages.

POINT OF ENTRY:
1.
Right lumbar area
2.
Right iliac area
POINT OF EXIT
1.
Left lateral area of abdomen
2.
Right hypogastric area

SO ORDERED.

which wounds have caused the instantaneous death of said

ARTHUR U. RONQUILLO, to the damage and prejudice of his
heirs in the following amount:
JESUS GERALDO and AMADO ARIATE,
Petitioners,

G.R. No. 173608

P50,000.00 as life indemnity of the victim;

10,000.00 as moral damages;
10,000.00 as exemplary damages; and
40,000.00 as actual damages.

Present:
QUISUMBING, J., Chairperson,
CARPIO MORALES,
TINGA,
VELASCO, JR., and
BRION, JJ.

- versus -

CONTRARY TO LAW.[2]

At 3:00 a.m. of July 1, 2002, his wife, daughter Mirasol, and son Arnel, among
PEOPLE OF THEPHILIPPINES,
Respondent.

Promulgated:
November 20, 2008

other persons, on being informed of the shooting of Arthur Ronquillo (the

x-------------------------------------------x

victim), repaired to where he was, not far from his residence, and found him

DECISION

lying on his side and wounded. Although gasping for breath, he was able to
utter to Mirasol, within the hearing distance of Arnel, that he was shot by

CARPIO MORALES, J.:

Petitioners

Jesus

Geraldo

Badjing[3] and Amado.

and

Amado

Ariate

were,

by

Information

dated December 23, 2002 filed on December 27, 2002 before the Regional

Petitioners who were suspected to be the Badjing and Amado responsible for

Trial Court of Surigao del Sur, charged with Homicide allegedly committed as

the shooting of the victim were subjected to paraffin tests at the Philippine

follows:

National Police (PNP) Crime Laboratory in Butuan City. In the PNP Chemistry
x x x [O]n the 1st day of July, 2002 at about 3:00 oclock early
morning, more or less, at Sitio Tinago, Barangay Bunga,
municipality of Lanuza, province of Surigao del Sur,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring and mutually
helping one another, armed with xxx handguns and with
intent to kill, did, then and there, willfully, unlawfully and
feloniously sho[o]t one ARTHUR U.[1] RONQUILLO, thereby
hitting and inflicting upon the latter wounds described
hereunder:

Report No. C-002-2002-SDS,[4] the following data are reflected:

xxxx
TIME AND DATE RECEIVED : 1105H 03 July 2002
REQUESTING PARTY/UNIT : Chief of Police
Lanuza Police Station
Lanuza, Surigao del Sur

SPECIMEN SUBMITTED :
Paraffin casts taken from the left and the right hands of the
following named living persons:

and answer style that her father uttered that herein petitioners shot him.

A = Jesus Geraldo Jr. alias Bajing

B = Amado Ariate

At the witness stand, Mirasol echoed her fathers declaration that Badjing and
Amado shot him. Arnel substantially corroborated Mirasols statement.[7]

/x/x/x/ /x/x/x/
PURPOSE OF LABORATORY EXAMINATION
Upon the other hand, petitioners gave their side of the case as follows:
To determine
Nitrates. /x/x/x/

the

presence

of

gunpowder

residue,

FINDINGS:

Petitioner

Ariate,

a barangay

tanod of

Bunga,

declared

that Barangay

Qualitative examination conducted on specimens A and B

gave NEGATIVE results for powder residue, Nitrates. /x/x/x/

Kagawad Omboy Roz (Roz) woke him up at 3:00 a.m. of July 1, 2002 and
informed him that the victim was shot. He and Roz thus borrowed a tricycle,

CONCLUSION:
proceeded to the crime scene and, along with others, brought the victim to
Specimens A and B do not reveal the presence of gunpowder
residue, Nitrates. /x/x/x/

the hospital where he was pronounced dead on arrival. Ariate submitted

REMARKS:

himself to a paraffin test and tested negative for gunpowder residue/nitrates.

The original copy of this report is retained in this laboratory

for future reference.

[8]

TIME AND DATE COMPLETED:

Petitioner Geraldo declared that he slept in his house located also in
1700H 03 July 2002
Barangay Bunga, Lanuza at 9:30 p.m. of June 30, 2002 and woke up at 4:00
x x x x (Underscoring supplied)
a.m. the following day. At6:30 a.m., on seeing many people in the vicinity of
the 45-meter away house of one Josita Bongabong where the victims body
In a document dated July 1, 2002 and denominated as Affidavit[5] which was
was found, he inquired and learned that the victim was shot. Policemen
subscribed and sworn to before Clerk of Court II Manuel A. Balasa, Sr. on July
subsequently went to his house and advised him to take a paraffin test. He
26, 2002, the victims son Arnel gave a statement in a question and answer
obliged and was tested at the PNP Crime Laboratory and was found negative
style that herein petitioners Jesus Geraldo and Amado Ariate were the ones
for gunpowder residue/nitrates.[9]
who shot his father.
In
In

another

document

dated

July

4,

2002

also

denominated

the

course

of

the

testimony

of

Ariate,

his

counsel

presented

as
the PNP Chemistry Report reflecting the negative results of the paraffin test

Affidavit[6] which was subscribed and sworn to also before the same Clerk of
on him and Geraldo. The trial court restrained the presentation of the
Court II Balasa on July 26, 2002, Mirasol also gave a statement in a question

document, however, as reflected in the following transcript of stenographic

When petitioner Geraldos turn to present the same PNP Chemistry Report

notes taken on March 21, 2003:

xxxx

came, the trial court ruled:

Q I am showing to you [Ariate] a copy of the result of

the paraffin test attached to the record of this case.
COURT
Is it covered in the Pre-trial Order? You cannot do
that. That is why I told you; lay your cards on the
table.
ATTY. AUZA
May I ask for the courts reconsideration.

COURT
That is the problem in the Pre-Trial Brief if the exhibits are not
stated. I will set aside that Order and in the interest of justice
I will allow the accused to submit, next time I will not any
more consider exhibits not listed in the Pre-trial Order.
[13] (Underscoring supplied)

COURT
Denied. I am warning you, all of you.
ATTY. AUZA
With the denial of our motion for reconsideration, I
move to tender exclusive evidence. He would have
identified this result. The paraffin test, which [forms]
part of the affidavit of this witness attached to the
record of this case on page 29. May I ask that this will
be marked as Exhibit 3 for the defense.

The version of the defense was in part corroborated by witnesses.

The trial court, passing on the demeanor of prosecution witness-the victims

eight-year old daughter Mirasol, observed:

COURT
Mark it. (Marked).[10] (Underscoring supplied)

As shown from the above-quoted transcript of the proceedings, the trial court
restrained the presentation of the result of the paraffin tests because the

. . . She talks straightforward, coherent and clear, very

intelligent, with child mannerism[s]. While testifying she was
criss-crossing her hands, touching anything within her reach,
innocent and simple, pressing of[f] and on her stomach but
she talks with correct grammar. No doubt, this Court was
convinced of her testimony which was corroborated by her
brother Arnel Ronquillo.[14]

same was not covered in the Pre-trial Order. In the Pre-trial Order,[11] the
trial court noted the parties agreement that witnesses not listed in this PreOn the nature and weight of the dying declaration of the victim, the trial
trial

Order

shall

not

be

allowed

to

testify

as

additional
court observed:

witnesses. Significantly, there was no agreement to disallow the presentation

of documents which were not reflected in the Pre-trial Orders. At all events,
oddly, the trial court allowed the marking of the PNP Chemistry Report as
Exhibit 3.[12]

A dying declaration may be xxx oral or in writing. As a

general rule, a dying declaration to be admissible must be
made by the declarant while he is conscious of his impending
death.However, even if a declarant did not make a statement
that he was on the brink of death, the degree and
seriousness of the wound and the fact that death supervened
shortly afterwards may be considered as substantial evidence
that the declaration was made by the victim with full

realization that he was in a dying condition; People vs.

Ebrada, 296 SCRA 353.
Even assuming that the declaration is not admissible as a
dying declaration, it is still admissible as part of the res
gestae since it was made shortly after the startling
occurrence and under the influence thereof, hence, under the
circumstances, the victim evidently had no opportunity to
contrive.[15] (Underscoring supplied)

WHEREFORE, in view of the foregoing, the appealed decision

is hereby AFFIRMED save for the modification of the penalty
imposed. Accordingly, accused-appellants are each hereby
sentenced to suffer an indeterminate penalty of Eight (8)
years, Five (5) Months and One (1) Day of prision
mayor medium as minimum, to Seventeen (17) Years and
Four (4) Months ofreclusion temporal medium as maximum,
with all accessory penalties provided by law, and to jointly
and solidarily pay the heirs of the victim the amount of
P50,000.00 as indemnity and P50,000.00 as moral damages.
SO ORDERED.[19] (Italics in the original)

Finding for the prosecution, the trial court convicted petitioners, disposing as
follows:
WHEREFORE, finding the accused JESUS GERALDO y CUBERO
and AMADO ARIATE y DIONALDO guilty beyond reasonable
doubt of the crime of Homicide penalized under Article 249 of
the Revised Penal Code and with the presence of one
(1) aggravating circumstance of night time and applying the
Indeterminate Sentence Law, the maximum term of which
could be properly imposed under the rules of said code and
the minimum which shall be within the range of the penalty
next lower to that prescribe[d] by the code for the offense,
hereby sentences each to suffer the penalty of TEN (10)
YEARS and ONE (1) DAY of Prision Mayor minimum to
SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY
of Reclusion Temporal maximum as maximum, with all the
accessory penalties provided for by law. To pay the heirs of
the victim the amount of P50,000.00 as life indemnity,
P100,000.00 as moral damages and P20,000.00 as exemplary
damages. The claim for actual damages is denied, there
being no evidence to support the same.
The bail bond put up by the accused Jesus Geraldo and
Amado Ariate are ordered cancelled and to pay the cost.
SO ORDERED.[16] (Underscoring supplied)

The Court of Appeals, by Decision of June 30, 2006,[17] affirmed with

modification the trial courts decision. It found that the trial court erred in
appreciating nocturnity as an aggravating circumstance. And it reduced the

Hence, the present Petition[20] raising the following issues:

I
WHETHER OR NOT THE IDENTIT[IES] OF THE ACCUSEDAPPELLANTS AS THE ALLEGED ASSAILANT HAS BEEN
ADEQUATELY ESTABLISHED AS PER EVIDENCE ON RECORD?
II
WHETHER OR NOT THE IDENTIT[IES] OF THE ACCUSEDAPPELLANTS HAD BEEN ESTABLISHED BY PROOF BEYOND
REASONABLE DOUBT?[21] (Emphasis and underscoring
supplied)

Petitioners argue:
With due respect, herein petitioners disagree with the holding
of the Honorable Court of Appeals that It is not necessary
that the victim further identify that Badjing was in fact Jesus
Geraldo or that Amado was Amado Ariate because, [so
petitioners
contend], it
is
the obligation
of
the
prosecution to establish with moral certainty that indeed
the persons they identified as the as the assailant of Arthur
O. Ronquillo were really the ones who perpetrated the crime.
Admittedly, prosecution witnesses were able to identify
positively herein petitioners as the alleged assailant[s] of
Arthur O. Ronquillo. But said identification is based on the
assumption that they were the very same BADJING AMADO
and/or BADJING AND AMADO referred to by their deceased
father in his dying declaration.

award of moral damages[18] to P50,000, and deleted the award of exemplary

damages. Thus the Court of Appeals disposed:

What the Honorable Court of Appeals failed to consider is

that, just because the victim declared that it was BADJING
AMADO and/or BADJING AND AMADO who shot him does not
necessarily follow that herein petitioners were really the

perpetrators in the absence of proof that the BADJING

referred to by him is Jesus Geraldo and that the AMADO is
Amado Ariate.It would have been a different story had the
prosecution witnesses [been] eyewitnesses because proof
that the BADJING AMADO and/or BADJING AND AMADO
referred to by the victim and the persons identified by the
prosecution witnesses are the same is unnecessary.

inferred that such ante mortem declaration was made under consciousness
of an impending death.[24] The location of the victims two gunshot wounds,
his gasping for breath, and his eventual death before arriving at the hospital
meet this requirement.[25]

Herein petitioners believe, that even assuming that there are

no other BADJING or AMADO in the barangay, still it does not
follow that the person[s] referred to by the dying declarant as
his assailant were Jesus Geraldo alias BADJING and Amado
Ariate alias AMADO. Although, it is inconceivable how the
Honorable Court of Appeals arrived at the said conclusion
that there are no other BADJING AMADO and/or BADJING AND
AMADO in the barangay absent any proof to that effect from
the prosecution.[22] (Underscoring in the original)

It has not been established, however, that the victim would have been
competent to testify had he survived the attack. There is no showing that he
had the opportunity to see his assailant. Among other things, there is no
indication whether he was shot in front, the post-mortem examination report
having merely stated that the points of entry of the wounds were at the right

The petition is impressed with merit.

lumbar area and the right iliac area.[26] Lumbar may refer to the loins or the
The trial court relied on the dying declaration of the victim as recounted by
group of vertebrae lying between the thoracic vertebrae and the sacrum,
his daughter Mirasol and corroborated by his son Arnel.
[27]or to the region of the abdomen lying on either side of the umbilical
region and above the corresponding iguinal.[28] Iliac relates to the ilium,
A dying declaration is admissible as evidence if the following circumstances
which is one of the three bones composing either lateral half of the pelvis
are present: (a) it concerns the cause and the surrounding circumstances of
being in man broad and expanded above and narrower below where it joins
the declarants death; (b) it is made when death appears to be imminent and
with the ischium and pubis to form part of the actabulum.[29]
the declarant is under a consciousness of impending death; (c) the declarant
would have been competent to testify had he or she survived; and (d) the
At all events, even if the victims dying declaration were admissible in
dying declaration is offered in a case in which the subject of inquiry involves
evidence, it must identify the assailant with certainty; otherwise it loses its
the declarants death.[23]
significance.[30]
There is no dispute that the victims utterance to his children related to the
In convicting petitioners, the trial court, as stated earlier, relied on the
identities of his assailants. As for the victims consciousness of impending
testimony of the victims daughter Mirasol, which was corroborated by her
death, it is not necessary to prove that he stated that he was at the brink of
brother Arnel, that the Badjing and Amado mentioned by the victim as his
death; it suffices that, judging from the nature and extent of his injuries, the
assailants are herein petitioners whom they claimed to know because they
seriousness of his condition was so apparent to him that it may safely be
live in the same barangay.[31] The Court of Appeals believed too the siblings

testimonies, holding that

WHEREFORE, the petition is GRANTED. The Decision of the Court of
It is not necessary that the victim further identify that Badjing
was in fact Jesus Geraldo or that Amado was Amado
Ariate. There was never an issue as to the identity of the
accused.There was no other person known as Badjing or
Amado in their neighborhood or in their barangay. Accusedappellants never presented any proof that a person in
their locality had the same aliases or names as they. It is
not uncommon that even an eight-year-old child can identify
that Jesus Geraldo was known as Badjing and that Amado
Ariate was Amado.[32](Underscoring supplied)

Appeals dated June 30, 2006 affirming with modification the Decision of
Branch 41 of the Surigao del Sur Regional Trial Court is REVERSED and SET
ASIDE. Petitioners Jesus Geraldo and Amado Ariate are ACQUITTED of the
charge of Homicide for failure of the prosecution to establish their guilt
beyond reasonable doubt.

Let a copy of this Decision be furnished the Director of the Bureau of

Contrary, however, to the immediately-quoted ruling of the appellate court, it
Corrections, Muntinlupa City who is directed to cause the immediate release
is the prosecution, not petitioners, which had the burden of proving that
petitioners were, at the material time, the only ones in the barangay who
bore such nicknames or aliases. This, the prosecution failed to discharge.
When there is doubt on the identity of the malefactors, motive is essential for
of petitioners unless they are being lawfully held for another cause, and to
their conviction.[33] The Court notes that in their affidavits supporting the
inform this Court of action taken within ten (10) days from notice hereof.
criminal complaint, the victims wife and children Mirasol and Arnel proffered
not knowing any possible motive for petitioners to shoot the victim.[34] At
the

trial,

no

evidence

of

any

motive

was

presented

by

the

SO ORDERED.

prosecution. Petitioners defense of denial and alibi thus assumes importance.

G.R. No. 75028 November 8, 1991
Specifically with respect to petitioner Ariate, the victims wife admitted that
Ariate accompanied her family in bringing the victim to the hospital.
[35] While non-flight does not necessarily indicate innocence, under the

PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
PIOQUINTO DE JOYA y CRUZ, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Rodolfo P. Liwanag for accused-appellant.

circumstances obtaining in the present case, Ariates spontaneous gesture of

immediately extending assistance to the victim after he was advised by
the Barangay Kagawad of the victims fate raises reasonable doubt as to his
guilt of the crime charged.[36]

FELICIANO, J.:p
In an Information dated 5 May 1978, appellant Pioquinto de Joya y Cruz was
charged before the Regional Trial Court, 3rd Judicial Region, Branch 14,
Malolos, Bulacan with the crime of robbery with homicide committed as
follows:
That on or about the 31st day of January, 1978, in the

municipality of Baliuag, province of Bulacan, Philippines and

within the jurisdiction of this Honorable Court, the said
accused Pioquinto de Joya y Cruz, did then and there wilfully,
unlawfully and feloniously, with intent of (sic) gain and
without the knowledge and consent of the owner and, by
means of violence and intimidation, take, carry and cart away
two (2) rings, one (1) necklace, one (1) piece of earring,
belonging to Arnedo Valencia y Angeles and Eulalia Diamse
Vda. de Salac, to their damage and prejudice in the sum of
FIVE HUNDRED FIFTY PESOS (P550.00); and that on the
occasion of the said robbery and for the purpose of enabling
him to take the said properties, the accused did then and
there wilfully, unlawfully and feloniously with treachery,
evident premeditation and great advantage of superior
strength, with intent to kill, attack, assault and use personal
violence upon the person of Eulalia Diamse Vda. de Salac by
stabbing and hitting the latter on her neck and other parts of
her body with pointed instrument causing injuries which
directly caused the death of the said Eulalia Diamse Vda. de
Salac.
That in the commission of the offense, the following
aggravating circumstances were present (1) abuse of superior
strength; (2) committed in the dwelling of the offended party;
(3) disregard of age and sex; (4) abuse of confidence.
Contrary to law. 1
At arraignment, appellant De Joya pleaded not guilty. After trial, the court a
quo rendered a decision dated 16 May 1986 convicting De Joya of the crime
charged. The dispositive portion of the decision reads:

appellant was guilty beyond reasonable doubt of the crime charged.

The facts have been summarized in the brief of the Solicitor General in the
following manner:
The spouses Arnedo Valencia and Herminia Salac-Valencia,
together with their ten (10) year old son Alvin Valencia and
Herminia Valencia's 88-year old mother, Eulalia Diamse, are
residents of Balagtas St., Baliuag, Bulacan. (TSN, June 11,
1981, p. 2). Both spouses are teachers by profession.
Arnedo Valencia teaches at the Tiaong Elementary School at
Barrio Tiaong, Baliuag, Bulacan whereas Herminia Valencia
teaches in an intermediate school at Baliuag, Bulacan. (TSN,
March 11, 1980, p. 7).
In the afternoon of January 31, 1978, Herminia Salac-Valencia
left for school to teach. Her mother Eulalia Diamse was then
[sitting] at their sofa watching the television set. (TSN,
October 12, 1978, p. 3).
Her Son Alvin likewise left for school at 1:00 o'clock. And at
3:00 o'clock in the afternoon, his classes were dismissed and
he proceeded home. (TSN, March 11, 1980, p. 8).
At around 3:00 o'clock in the afternoon of that same day, the
spouses Valencia's neighbor by the name of Gloria Capulong,
together with a friend, went out of the former's house to visit
a friend. While at her yard, Gloria Capulong looked back to
the direction of the Valencia's house. She noticed appellant
Pioquinto de Joya standing and holding a bicycle at the yard
of the Valencia's. (TSN, June 11, 1981, pp. 2-4).

WHEREFORE, judgment is hereby rendered, finding the

accused guilty beyond reasonable doubt of the crime of
Robbery with Homicide, committed with the aggravating
circumstances of: abuse of superior strength, old age,
disregard of sex the victim a woman 88 years old, the crime
was committed in the dwelling of the victim. The accused
being 72 years old death penalty cannot be imposed against
him as provided in Article 47 of the Revised Penal Code.

When Alvin reached home, he saw his grandmother Eulalia

Diamse lying down prostrate and drenched with her own
blood. He immediately threw his bag and ran towards her. He
then held her hands and asked her: "Apo, Apo, what
happened?". (TSN, March 11, 1980, p. 10).

The Court therefore, sentences the accused to LIFE

IMPRISONMENT; to indemnify the heirs of the victim in the
amount of P20,000.00 and to pay damages in the amount of
P550.00.

Alvin then called for his Nana Edeng and told her to see his
lola because she was drenched with her own blood. His Nana
Edeng told him to immediately see his mother Herminia
Salac-Valencia to inform her of what happened. (TSN, Id).

The bond of the accused is ordered cancelled and the

accused to be confined immediately in the National
Penitentiary pending review of his case by the Supreme
Court.

Upon seeing her mother, Alvin told her: "Mommy, Mommy,

apo is drenched in her own blood." (TSN, March 11, 1980, p.
20).

The Clerk of Court is ordered to immediately forward the

record of this case to the Supreme Court for review.
SO ORDERED. 2
In this appeal, appellant raises a number of issues all of which, however,
amount to one basic assertion: that the lower court erred in concluding that

. . . [Eulalia Diamse held his hand and after which said: "Si
Paqui". After saying these words, she let go of Alvin's hand
and passed away. (TSN, Ibid., pp. 14 and 17).

Herminia immediately ran outside the school, flagged down a

tricycle and went home. Alvin followed, riding his bicycle
(TSN, Id., p. 21). When she reached their house, she found
her mother lying prostrate in her own blood at their sala in
front of the television. Her mother's hands were stretched
open and her feet were wide apart. Blood was oozing out of
her mother's ears. She then embraced her mother and placed

her on the sofa. She asked Alvin and the tricycle driver to call
Dr. Delfin Tolentino. (TSN, October 12,1978, pp. 25-26).
Dr. Tolentino arrived at around 4:00 o'clock that same
afternoon and examined the body of Eulalia Diamse. Said
doctor declared that said Eulalia Diamse had a heart attack
which caused her death. When asked by Herminia Valencia
why her mother's ears were punctured, no reply was given by
said doctor. Herminia requested for a death certificate, but Dr.
Tolentino did not issue one and instead immediately left.
(TSN, Ibid., pp. 27-29).
Herminia found out that the two (2) gold rings worn by her
mother were missing. The right earring of her mother was
likewise missing. All of these were valued [at] P300.00
(TSN, Id., p. 15).
That same afternoon, Herminia saw the room of the
groundfloor ransacked. The contents of the wardrobe closet
(aparador) were taken out. Its secret compartment/box was
missing. And the lock of the aparador was destroyed. (TSN,
October 12, 1978, pp. 15-17).
When she went upstairs after putting her mother on a bed at
the ground floor, she found the two (2) rooms thereat in
disarray. She then caused the rooms and things photographed
by a certain Ricardo Ileto (Exhibits "A" to "A-11"; TSN, October
12, 1978, p. 17).
Later, Herminia went to Dr. Adela Cruz and pleaded [with]
said doctor to issue a death certificate so that her mother
could be embalmed. (TSN, Id., pp. 33-34).
On the same night, Herminia found a beach walk step-in
(Exhibit "B") by the side of the cabinet near the door of their
room downstairs, more or less one meter from where the
victim was lying prostrate. (TSN, October 12,1978, pp. 24-25).
Herminia was able to recognize the said step-in because of its
color and size, as the other half of the pair she bought for her
husband Arnedo but which she gave to Socorro de Joya, the
wife of herein appellant, before Christmas of 1977 when she
saw the old and wornout pair of slippers of the latter.
(TSN, Ibid.).
Appellant Pioquinto de Joya visited the wake only once.
During the second day of the four-day wake, Herminia saw
herein appellant Pioquinto de Joya enter the kitchen and peep
under the cabinet of the (Valencia's) house. (TSN, Id.).
On February 3, 1978, a post-mortem examination was
conducted by Dr. Romulo Madrid, a medico-legal officer of the
National Bureau of Investigation. Per examination, the cause
of the death arrived by Dr. Madrid was "shock, secondary to
punctured wound neck" (Exhibit "D-1") situated at the right
side of the neck, just below the right ear wherein it went out
thru and thru, opposite, almost in the same location, from one
side of the neck to the opposite side. (Exhibit "D-2").

In its decision, the trial court became quite clear as to the factors which led
to the judgment of conviction against appellant. These factors, as set out in
the decision of the trial court, were the following:
In the case at bar, the prosecution relied heavily on the
circumstances surrounding the death of the victim as testified
to by the witnesses and proven during the trial, also the dying
statement of the deceased, which are: Herminia testified that
two weeks before the incident the accused and the deceased
quarreled over a bicycle which the former took from their
house without the consent of the latter; that Exhibit "B" (stepin beach walk type) which was found near the cabinet one
meter away from the body of the victim was identified by
Herminia as the step-in that she gave to the wife of the
accused and which she saw accused wearing on January 29,
1978 when she visited them in their house; the testimony of
Gloria Capulong that she saw the accused in the afternoon of
January 31, 1978 at around 3:00 p.m. in the yard of Herminia
standing and holding a bicycle; the accused admitted,
although his wife is the sister of the husband of Herminia he
never visited the deceased during the four days that it was
lying in state without any justifiable reason and contrary to
the ordinary experience of man; last but most convincing is
the dying statement of the deceased when her grandson
Alvin asked her "Apo, Apo, what happened?" and she
answered, "Si Paki", then she expired. When Alvin was asked
during his testimony who is this Paki, he identified the
accused. The accused during his testimony never denied that
he is called Paki.
The foregoing circumstances established during the trial plus
the dying statement of the deceased leads only to one fair
and reasonable conclusion, that the accused is the author of
the crime.
Analyzing the above portion of the decision, the elements taken into account
by the court in convicting appellant De Joya of robbery with homicide may be
listed as follows:
1. The dying statement made by the deceased victim to her
grandson Alvin Valencia a 10-year old boy: "Si Paqui";
2. The quarrel, which, according to Herminia Valencia,
daughter of the deceased victim, took place two weeks before
the robbery and homicide, between the appellant and the
deceased over the use of a bicycle which appellant allegedly
took from the Valencia's house without the consent of the
victim;
3. The rubber slipper, one of a pair, ("step-in beach walk
type") which according to Herminia, she found near a cabinet
in their house one (1) meter away from the body of the
victim, and which Herminia identified as one of the pair that
she had given to the wife of the accused the previous
Christmas Season;
4. Accused was seen by one Gloria Capulong around 3:00

p.m. in the afternoon of 31 January 1978 in the yard of the

Valencias, standing and holding a bicycle and doing nothing;
5. The statement of appellant that he did not visit the
deceased during the four-day wake.
We turn first to the dying statement made by the victim when the 10-year old
Alvin Valencia asked his grandmother who was sprawled on the floor of their
house drenched with blood: "Apo, Apo, what happened?" The deceased
victim said: "Si Paqui". After uttering those two words, she expired. It is not
disputed that "Paqui" is the nickname of appellant Pioquinto de Joya. It must
be noted at once, however, that the words "Si Paqui" do not constitute by
themselves a sensible sentence. Those two words could have been intended
to designate either (a) the subject of a sentence or (b) the object of a verb. If
they had been intended to designate the subject, we must note that no
predicate was uttered by the deceased. If they were designed to designate
the object of a verb, we must note once more that no verb was used by the
deceased. The phrase "Si Paqui" must, moreover, be related to the question
asked by Alvin: "Apo, Apo, what happened?" Alvin's question was not: "Apo,
Apo, who did this to you?"
It has been held that a dying declaration to be admissible must be complete
in itself. To be complete in itself does not mean that the declarant must recite
everything that constituted the res gestae of the subject of his statement,
but that his statement of any given fact should be a full expression of all that
he intended to say as conveying his meaning in respect of such fact. 3 The
doctrine of completeness has also been expressed in the following terms in
Prof. Wigmore's classic work:
The application of the doctrine of completeness is here
peculiar. The statement as offered must not be merely apart
of the whole as it was expressed by the declarant; it must be
complete as far it goes.But it is immaterial how much of the
whole affair of the death is related, provided the statement
includes all that the declarant wished or intended to include
in it. Thus, if an interruption (by death or by an intruder) cuts
short a statement which thus remains clearly less than that
which the dying person wished to make, the fragmentary
statement is not receivable, because the intended whole is
not there, and the whole might be of a very different effect
from that of the fragment; yet if the dying person finishes the
statement he wishes to make, it is no objection that he has
told only a portion of what he might have been able to
tell. 4 (Emphasis supplied)
The reason upon which incomplete declarations are generally excluded, or if
admitted, accorded little or no weight, is that since the declarant was
prevented (by death or other circumstance) from saying all that he wished to
say, what he did say might have been qualified by the statements which he
was prevented from making. That incomplete declaration is not therefore
entitled to the presumption of truthfulness which constitutes the basis upon
which dying declarations are received. 5
It is clear to the Court that the dying declaration of the deceased victim here
was incomplete. In other words, the deceased was cut off by death before
she could convey a complete or sensible communication to Alvin. The trial
court simply assumed that by uttering the words "Si Paqui", the deceased

had intended to name the person who had thrust some sharp instrument
through and through her neck just below her ears. But Eulalia herself did not
say so and we cannot speculate what the rest of her communication might
have been had death not interrupted her. We are unable to regard the dying
statement as a dying declaration naming the appellant as the doer of the
bloody deed.
The other elements taken into account by the trial court are purely
circumstantial in nature. When these circumstances are examined one by
one, none of them can be said to lead clearly and necessarily to the
conclusion that appellant had robbed and killed the deceased Eulalia Diamse.
The quarrel over the use of the bicycle which was supposed to have taken
place two weeks before Eulalia's death does not, in our view, constitute
adequate proof of a motive capable of moving a person to slay another in
such a violent and gory manner. Failure to prove a credible motive where no
identification was shown at all, certainly weakens the case of the prosecution.
The testimony of Herminia Valencia about the single slipper that she found
near or under the cabinet in the living room where Eulalia Diamse was slain,
can scarcely be regarded as conclusive evidence that such slipper was
indeed one of the very same pair of slippers that she had given to appellant's
wife, who was also the sister of Herminia's husband. Rubber or beach, walk
slippers are made in such quantities by multiple manufacturers that there
must have been dozens if not hundreds of slippers of the same color, shape
and size as the pair that Herminia gave to appellant's wife. And even if
conclusive identification of the slippers had been offered, and it is assumed
that appellant (rather than his wife) had worn those very slippers on that
fatal afternoon, still the presence of that singular slipper did not clearly and
directly connect the appellant to the robbery or the slaying. At most, under
that assumption, the presence of that slipper in the house of the Valencias
showed that the accused had gone to the house of the Valencias and there
mislaid that slipper. We note in this connection, that appellant himself had
testified that he did enter the house of the Valencias that afternoon,
but after the killing of Eulalia Diamse had been perpetrated, and there had
found many persons in the house viewing the body.
The testimony of Gloria Capulong that she saw the accused in the afternoon
of 31 January 1978 around 3:00 p.m. in the yard of the Valencias, standing
and holding a bicycle and doing nothing is, by itself, not proof of any act or
circumstance that would show that appellant had perpetrated the slaying or
the robbery. The behaviour of the appellant, as testified to by Gloria
Capulong, offers no basis for supposing that appellant, himself 72 years of
age, had just slain an 88-year old woman by skewering her through the neck
and had ransacked both floors of the Valencia house.
Appellant's failure to present himself to pay his respects to the deceased or
her immediate family during the four-day wake, does not give rise to any
inference that appellant was the slayer of Eulalia Diamse. Appellant had
explained that he had been busily at work, sewing and carrying on his trade
as a tailor. Appellant, as already noted, had dropped in the Valencias' house
in the afternoon Eulalia Diamse was killed and had viewed the body (before it
was lying in state) along with several other persons. His reluctance or
inability to participate in the formal wake is not necessarily a sign of guilt. We
are unable to agree with the trial judge that such behaviour was "contrary to
the ordinary experience of man" although respect for the dead is a common
cultural trait of the Filipinos.

In the Solicitor-General's brief, it is casually contended that the circumstantial

evidence against appellant included: "the attempt on the part of appellant
Pioquinto de Joya through his counsel to settle the case amicably." 6 We have
examined the testimony that the Solicitor General pointed to in referring to a
supposed attempt to settle the criminal charge amicably. That testimony,
given by Arnedo Valencia, son-in-law of the deceased Eulalia Diamse and
brother-in-law of appellant Pioquinto de Joya, was as follows:
Q You also testified that before the release of
the accused from the municipal jail, you had a
conversation with him, is that right?

A It is possible because he is only one or two

meters distance away.
Q Did the accused say anything?
A None, sir. (Emphasis supplied)
We find the above testimony quite impalpable and inconclusive so far as a
supposed attempt of appellant, through his counsel, to offer a compromise on
the criminal charge is concerned. We are aware of the provision of Section 24
of Rule 130 of the Rules of Court which provides that
Sec. 24. Offer to compromise not admission. An offer of
compromise is not an admission that anything is due, and is
not admissible in evidence against the person making the
offer. However, in criminal cases which are not allowed by law
to be compromised, an offer of compromise by the accused
may be received in evidence as an implied admission of guilt.
(Emphasis supplied)

A Yes, air.
Q What was this conversation about?
A He called for me and took me to his counsel
Atty. Aguilar and according to him if only Atty.
Aguilar can talk with me, everything will be
settled.
Q Have you seen and talked to this Atty.
Aguilar?
A Yes, I went with him to Manila, sir.
Q When was this?
A The time he was fetched out of jail.
Q You are referring to the municipal jail?
A Yes, sir.
Q What did you and Atty. Aguilar discuss when
you finally was able to see Atty. Aguilar?

We do not, however, feel justified in concluding from the above testimony

from a member of the (extended) family of the deceased victim that "an offer
of compromise" had been made "by the accused" nor that "an implied
admission of guilt" on the part of the appellant may be reasonably inferred in
the instant case. The trial court itself made no mention of any attempt on the
part of appellant to settle the criminal case amicably through the defense
counsel; we must assume that the trial court either did not believe that
appellant had tried to compromise the criminal case or considered that
appellant could not fairly be deemed to have impliedly admitted that he had
indeed robbed and killed Eulalia Diamse. A much higher level of explicitness
and specific detail is necessary to justify a conclusion that an accused had
impliedly admitted his guilt of a crime as serious as robbery with homicide.

Q Anything else that transpired?

The totality of the case made out against appellant De Joya thus consists of
an incomplete, aborted, dying declaration and a number of circumstances
which, singly or collectively, do not necessarily give rise to a compelling
inference that appellant had indeed robbed and slain Eulalia Diamse. We
consider, after prolonged scrutiny, that the sum total of the evidence in the
instant case is insufficient to induce that moral certainty of guilt which
characterizes proof beyond reasonable doubt. The conscience of the Court
remains uneasy and unsettled after considering the nature and speculative
character of the evidence supporting the judgment of conviction.

A He even told me if I might be able to

convince both my wife and her sisters.

The Court must, accordingly, hold as it hereby holds that appellant's guilt of
the crime of robbery and homicide was not shown beyond reasonable doubt.

Q Did he tell you he can settle this?

ACCORDINGLY, the decision of the trial court dated 16 May 1986 is hereby
REVERSED and appellant Pioquinto de Joya is hereby ACQUITTED on grounds
of reasonable doubt.

A When I went there, I was introduced to Atty.

Aguilar and Atty. Aguilar asked me as to what I
liked to happen.
Q What did you say?
A I said if it will be settled, well and good.

A He was very certain that he can settle

this, the very reason why he told me because
I was very certain as to what happened.

It is so ordered.

Q Was the accused Pioquinto de Joya present

when you were discussing this with his
lawyer?
A Yes, sir
Q He heard what his, lawyer was telling you?

G.R. No. 28871

THE
vs.

PEOPLE

September 19, 1928

OF

THE

PHILIPPINE

ISLANDS, plaintiff-appellee,

CLEMENTE
BABIERA,
JUSTO
BORES, defendants-appellants.

BABIERA

Zulueta
and
Cordova
and
Jesus
Trinidad
Office of the Solicitor-General Reyes for appellee.

and
for

DOMINGA
appellants.

VILLA-REAL, J.:
This is an appeal taken by Clemente Babiera, Justo Babiera and Dominga
Bores from the judgment of the Court of First Instance of Iloilo finding them
guilty of the crime of murder, the first as principal, and the last two as
accomplices, sentencing the former to life imprisonment with the accessories
of article 54 of the Penal Code, and each of the latter to fourteen years, eight
months and one day cadena temporal, with the accessories of article 54 and
59 of the Penal Code, respectively, and all three to indemnify the family of
the deceased Severino Haro in the sum of P1,000 jointly and severally, and
each of them to pay one-third of the costs of the action in the justice of the
peace court and the Court of First Instance.
The six alleged errors assigned by the accused as committed by the trial
court in its judgment may be shifted down to the following propositions:
1. That the evidence adduced at the trial by the prosecution has not
established the guilt of the defendants-appellants beyond a reasonable
doubt.
2. The Exhibit I of the prosecution is not an ante-mortem declaration and is
therefore inadmissible as evidence.
3. That the offended party's quarrelsome disposition can be proved in the
trial to determine who began the attack.
Before discussing the evidence adduced by both parties and determining its
weight and probatory value, it is well to decide the questions raised by the
appellants on the admissibility of evidence.
The first question of this nature refers to the character of the document
Exhibit I, which is a statement made by Severino Haro in Saint Paul's Hospital
of Iloilo on the morning after the crime was committed.
Although said statement in itself is inadmissible as an antemortem declaration, inasmuch as there is nothing to show that at the time he
made it Severino Haro knew or firmly believed that he was at the point of
death, nevertheless, having ratified its contents a week later when he was
near death as a result of his wounds, said declaration is admissible as a part
of that which he made ante-mortem "A statement made under circumstances
which would not render it admissible as a dying declaration becomes
admissible as such, it is held, if approved or repeated by the declarant after
he had abandoned all hope of recovery." (30 Corpus Juris, 257.)
Passing now to a consideration of the evidence, the prosecution tried to
proved the following facts:
Justo Babiera was the owner of two parcels of land situated in the
municipality of Oton, Province of Iloilo, Philippine Islands. On October 19,
1922 Justo Babiera executed a contract of sale with the right of repurchase in
favor of Basilio Copreros whereby he sold the two parcels of land to the latter
for the sum of P124 with the condition that if the vendor did not repurchase
them on or before August 1, 1923, the sale would become absolute and
irrevocable (Exhibit F). The period for repurchase having expired, Basilio

Copreros took possession of said two parcels of land, and on March 24, 1927,
made application to the registrar of deeds for the Province of Iloilo for the
registration of the consolidation of his title to said parcels. On the 26th of the
said month, Basilio Copreros leased said parcels to Severino Haro, municipal
president of Oton (Exhibit G and G-1). In view of this, on March 31, 1927,
Justo Babiera filed a complaint against Basilio Copreros in the justice of the
peace court of Oton for the recovery of the possession of said two parcels of
land. The complaint having been dismissed on April 19, 1927 on the ground
that it did not allege facts sufficient to constitute a cause of action, Justo
Babiera appealed to the Court of First Instance of Iloilo (Exhibit M). Later on,
said Justo Babiera asked for the dismissal of the complaint for unlawful
detainer and filed another one for the recovery of property (Exhibit F).
Inasmuch as Severino Haro was already in possession of the aforesaid two
parcels of land as lessee, he bore all the expenses in the case of unlawful
detainer as well as in that for recovery of the property.
Fermin Bruces was Severino Haro's copartner on shares in said lands. About
the month of May, 1927, Justo Babiera accompanied by his copartner on
shares, Rosendo Paycol, went to where Fermin Bruces was plowing and asked
the latter: "Who told you to plow here?" Fermin Bruces replied: "Severino
Haro." Then Justo Babiera asked him: "If this Severino tells you to kill yourself,
will you do it?" "Of course not," answered Fermin Bruces. After this
interchange of words Justo Babiera told Fermin Bruces to stop plowing and to
tell his master, Severino Haro, to come and plow himself. Fermin Bruces
informed Severino Haro of the incident, and in answer the latter only told him
not to mind it, but to go on plowing.
On another occasion while Fermin Bruces was transplanting rice on the same
lands, Clemente Babiera and Rosendo Paycol arrived and told him that if he
continued working they would pull out someone's intestines. Fermin Bruces
also informed Severino Haro of these threats, who as before, told him not to
mind them, but to go on sowing.
On July 23, 1927, Jose Haro, brother of Severino Haro, visited his land in the
barrio of Bita, which was under the care of Victoriano Randoquile. He was told
by the latter that he lacked palay seeds. At that time, Rosendo Paycol was in
his field, Jose Haro and Victoriano Randoquile approached him and asked him
to give them some seeds. Rosendo Paycol answered that he could not do so
because he needed what he had for his own farms. Haro and Randoquile then
asked him: "Which fields do you mean?" "The fields over which Copreros and
Babiera are in litigation," answered Rosendo Paycol. Surprised at this answer,
Jose Haro told Rosendo Paycol that what he said could not be because the lot
in dispute was leased to his brother Severino Haro. Rosendo Paycol replied
that attorney Buenaventura Cordova had told Clemente Babiera and Justo
Babiera that Severino Haro would never be able to reap or enjoy the fruits of
the land, because if they did not win the suit by fair means they would win it
by foul.
Ever since he had leased said land Severino Haro visited it rather often,
especially during the months of June and July, which is the sowing season,
trying always to return to town early. To go to the land, which was in the
barrio called Bita, there was but a beaten path that passed by the house of
Rosendo Paycol, copartner on shares of Justo Babiera, where the latter and
his family lived.
On August 21, 1927, Severino Haro, as usual, went to visit his land in the
barrio of Bita, accompanied by Gregorio Torrija, Benito Carreon and Pedro

Tauro. On arriving there Fermin Bruces, his copartner on shares, told him that
the day before he had found Clemente Babiera's cow grazing on that land. It
happened at that moment Clemente Babiera and Dominga Bores were
passing by. Severino Haro then informed Clemente Babiera of what his cow
had done on the former's land and told him to take better care of his cow in
future and not to let it run loose. He then ordered Fermin Bruces to take the
animal to where the Babiera family lived. Severino Haro was not able to
return to town until almost 7 o'clock in the evening. As it was already dark,
he and his companions had to make use of a torch made out of split bamboo
to light them on their way. Severino Haro went ahead, followed by Pedro
Tauro, who carried the torch, some 8 brazas behind, with Gregorio Torrija and
Benito Carreon following. On Coming to a place in the road near Rosendo
Paycol's house, Clemente Babiera suddenly sprang from the cogon grass,
went after Severino Haro and struck him with his bolo in the back. On turning
his head to see who had attacked him Severino Haro received another bolo
blow in the forehead near the right eyebrow. In trying to defend himself with
his hand he was wounded between the index finger and the thumb. He then
tried to grasp his assailant but did not succeed and he fell to the ground.
Then Justo Babiera appeared and placing himself upon Severino Haro's
stomach, held the latter's hands. Later, Dominga Bores appeared on the
scene and held both knees of the wounded man. When Justo Babiera arrived,
a voice was heard saying: "Hold him, papa," and at the same time, Severino
Haro's voice was heard saying: "Help! help!" Pedro Tauro wished to come
near in order to help Severino Haro, but Clemente Babiera raised his bolo in
the air and kept on brandishing it to warn everybody off. Pedro Tauro, in fear,
stepped back, dropping the torch he carried. Not far from there were also
Buenaventura Gabalfin and Gregorio Paycol, who threatened to kill Severino
Haro's companions if they helped him. After the torch had been extinguished
they heard a voice which they recognized as Severino Haro's saying: "Uncle
Justo, have patience with me, for I have done no wrong." Then they heard
another voice, that of Dominga Bores, which said: "Here is the revolver; let us
return." Before the assailants left two or three revolver shots were heard.
When Severino Haro's companions saw that their assailants had already
departed, they drew near to where Severino lay stretched out to see what
had happened to him. Severino Haro told them not to fear for he did not feel
as if he were going to die, and calling his copartner on shares, Fermin Bruces,
directed him to bring a cot and take him to town. Pedro Tauro and Gregorio
Torrija did as Severino Haro wished, and on arriving at the barrio of Santa
Monica, they by chance came upon a truck in which were some policemen.
They place the wounded man in the same truck and took him to Saint Paul's
Hospital in the City of Iloilo. When Severino Haro was taken to the town he
did not have his revolver and the cartridge belt, without the holster, was
found by Gregorio Torrija near where the incident took place.
When Severino Haro was already in Saint Paul's Hospital he was examined by
Dr. Mariano Arroy, who issued a certificate stating that he found the following
wounds: Three on the right frontal regions; one on the right forehead taking
in the soft parts up to the auditory arch; on the right palmar arch; another on
the left arm; a deep one reaching down to the spinal column on the four
slight wounds on the right thigh; the ones on the forehead and the dorsal
region being mortal of necessity. All the wounds were caused, in the doctor's
opinion, by a sharp-edged and pointed weapon, and while the combatants
were on the same plane, except the wounds on the middle of the calf which
must have been caused while the assaulted party was on a lower plane than
his assailant, and the wounds on the right thigh, which must have been

inflicted while the assailant was on a horizontal plane.

On the same morning, August 22, 1927, and in the same hospital, Severino
Haro made a sworn statement before the deputy fiscal, Edmundo S. Piccio
(Exhibit I), relating the occurrence and mentioning the persons who were
present. This sworn statement was ratified by him before the same deputy
fiscal on the 27th of the said month and year when he had given up all hope
of recovery.
In this statement, Exhibit I, Severino Haro, among other things, said the
following:
"Without warning, I received a slash on the left shoulder. On turning back my
face, I saw Clemente Babiera, and he then gave me another slash on the
forehead just above the right eyebrow. At that moment I also received a cut
on the right hand, because on receiving the blow on the forehead I defended
myself with that hand. I then grasped him because I could no longer support
myself due to my two wounds. Then I fell. When I fell, Clemente Babiera's
father placed himself upon my stomach, while his (Clemente's) wife sat on
my feet, while Justo Babiera, Clemente's father, grasped my two hands and
said to me, "There, now draw your revolver" addressing me. I shouted to my
companion for help, for I felt I would die and while they approached,
Clemente Babiera turned upon them, and said: "Do not approach for you
have nothing to do with this. Whoever comes near gets a slash from this
bolo." I shammed death and when they left me, and upon seeing that neither
Clemente, nor his father, nor his wife remained, my three companions came
up to me from their hiding places. One Aunario, copartner on shares of Jose
Abada, who lived near there, also came up to me, and later, Fermin."
In his ante-mortem declaration made on the 27th of August, 1927 before the
same deputy fiscal, Severino Haro, among other things, said the following:
"They repeatedly passed their fingers over my upper lip and at the same time
see if I still breathed; they felt and opened my eyelids and then inserted a
finger in my pupil, because they believed that if I was insensible, I was
already dead. They knelt on my stomach and one knelt on my lower limbs,
and made a pass with something, which seems to me was bamboo or a bolo,
over the anterior surface of my calf, and Dominga then took the revolver
from me. I got up because I was afraid Dominga would shoot me and when I
attempted to escape Clemente Babiera pursued me and gave me another cut
on the left side of the waist, and I think the blow struck the ammunition belt,
and if it had not been for the belt it would have severed my waist."
The defense tried to prove the following facts:
On the afternoon of August 21, 1927 Clemente Babiera went to a place called
Caboloan, passing by the house of one Oper, located in the barrio of Bita,
Oton, Iloilo. While he was in Oper's house, his father Justo Babiera arrived,
and some moments later Severino Haro also arrived, and at once said to him:
"Clemente, why do you leave your cow loose?" Clemente denied the
imputation and said that his cow was tied. Severino Haro insisted, and added
that said animal had damaged his sugar-cane plantation, and therefore,
Fermin Bruces, his copartner on shares caught and tied it, by his order, to a
mango tree. Clemente Babiera answered that he left the case in his hands
and that he could charge him what he would, for the damages occasioned by
his cow. As Severino Haro charged him P2 for the damage, Clemente told him
that at the moment he had no money, but that on the following day he would

get money from the town market and pay him. Severino Haro accepted the
promise and left. Clemente Babiera in turn retired to his house, together with
Dominga Bores and his father, and upon reaching a coconut palm they met
Fermin Bruces, copartner on shares with Severino Haro, who told them that
he had already tied up the cow as per his master's order. At about 7 o'clock in
the evening while Clemente Babiera was in his house conversing with his
father about the land which they had in Caboloan, which was attached by the
Government, he suddenly heard a commotion; he went to the porch of the
house to see what had happened and saw a number of persons coming one
carrying a light and another leading his cow by rope. Clemente Babiera told
his father what he saw and went out to meet said persons, and saw
Buenaventura Cabalfin leading his cow by the rope and Severino Haro
followed by his companions Pedro Tauro, Gregorio Torrija, Benito Carreon,
Margarito Mediavilla and Fermin Bruces. Clemente Babiera then asked
Severino Haro: "Why are you taking my cow away? Haven't I promised to pay
you tomorrow the loss caused by the animal? If you have no confidence in
me, then prepare a receipt showing that tomorrow without fail, I will pay
you." In reply, Severino Haro only said to Buenaventura Cabalfin: "Get on,
proceed." Clemente Babiera took hold of the rope by which the cow was led,
and said: "Buenaventura, stop!" Severino Haro then grasped Clemente
Babiera by the hand and pulled him to one side. Clemente Babiera
disengaged himself from Severino Haro's grasp, but Margarito Mediavilla
struck him with a bolo at the base of his little finger. Feeling himself
wounded, Clemente Babiera tried to unsheathe his bolo intending to return
the blow to Margarito Mediavilla but failed to do so, because he heard
someone say: "Shoot him!" Immediately thereafter he saw Severino Haro with
revolver unholstered, and without any loss of time he went up to the latter
and at that moment shots were heard. Clemente Babiera then began to slash
blindly right and left without considering what he was at, catching Severino
Haro in the back, as a result of which the latter fell to the ground on his back.
Clemente Babiera threw himself upon him, held him down so he could not get
up, and asked him: "Where is your revolver?" Severino Haro answered that he
did not have it. Then Clemente Babiera raised Severino Haro's hands and felt
his back, but did not find the revolver. Justo Babiera, Clemente's father, then
appeared, and was told by his son: "Papa, hold him, while I search for his
revolver." When Clemente Babiera saw Fermin Bruces he thought that the
latter meant to attack him because he had one hand behind, where he
carried his bolo, so Severino turned on him, but his wife, Dominga Bores,
restrained him telling him not to approach. One Nario also wanted to
approach in order to defend Severino Haro but dared not do so in view of
Clemente Babiera's threats. After having made fruitless search for Severino
Haro's revolver, Clemente Babiera, his father, and his wife went back to their
house.
After charging Rosendo Paycol with the care of the children, the three went to
town and passed the night in Florencio Mayordomo's house. On the following
morning Dominga Bores went to attorney Buenaventura Cordova's house and
informed him of what had happened. Buenaventura Cordova then went to
Florencio Mayordomo's house and told Dominga Bores to return to the place
of the incident in order to look for the revolver and deliver it to the
Constabulary if she found it. Then he accompanied Clemente Babiera to the
office of Captain Gatuslao of the Constabulary at Fort San Pedro, to whom
they delivered the holster of the revolver and the three shells they had
picked up on the night of the incident. Dominga Bores having found the
revolver in a furrow near the place of the crime took it to Iloilo and delivered

it to Captain Gatuslao of the Constabulary between 9 and 10 o'clock in the

morning.
Dr. Jose Gonzales Roxas, Constabulary physician, treated Clemente Babiera's
wound and certified that the same was 2 centimeters long and half a
centimeter deep and was situated at the base of the little finger of the right
hand, taking in the cellular tissue of the skin and the exterior ligament of the
wrist.
In rebuttal, the prosecution tried to prove that at about half past five in the
morning of August 22, 1927, Dominga Bores was seen in the ground floor of
the provincial government building of Iloilo, carrying a package under her
arm and from there she went to the public market of Iloilo.
There is no question that Severino Haro had leased from Basilio Copreros two
parcels of land the ownership of which had passed to him due to Justo
Babiera's failure to repurchase them within the stipulated period. Nor is there
any question that the latter tried to recover them, first, by an accion
publiciana (action for unlawful detainer), and then by an action for the
recovery of possession. There is likewise no question that Severino Haro paid
the expenses of the defendant Basilio Copreros for the reason that he was
already in possession of said lands as lessee. There is also no question that
Clemente Babiera's cow damaged the plantings of Fermin Bruce, for which
reason the letter caught said cow, tied it, and notified his master of the
matter when the latter went to visit the lands leased by him. Neither is there
any question that there was an agreement between Clemente Babiera and
Severino Haro whereby the latter ordered his copartner on shares Fermin
Bruces, to take the cow near Clemente Babiera's house and tie it up there. In
like manner there is no question that at about 7 o'clock in the evening of
August 21, 1927, when Severino Haro and his companions were returning to
the town of Oton, and upon their coming near Rosendo Paycol's house, in
which were Clemente Babiera, his father Justo Babiera, and his mistress
Dominga Bores, said Severino Haro had an encounter with Clemente Babiera
in which Severino Haro received several wounds in consequence of which he
died a week later in Saint Paul's Hospital of Iloilo.
The only question to determine in the present appeal is whether, as the
prosecution contends, Severino Haro was suddenly and treacherously
attacked by Clemente Babiera, aided by his father and his mistress Dominga
Bores; or, as the defense contends, Severino Haro notwithstanding the
agreement between himself and Clemente Babiera by which the latter was to
indemnify him for the damages caused by his cow, wanted to take the animal
to town; that in trying to prevent it, Clemente Babiera was grasped by the
hand by Severino Haro and pulled to one side; that in disengaging himself
Clemente Babiera received a bolo cut from Margarito Mediavilla that
wounded the little finger of his right hand; and that Severino Haro then
unsheathed his revolver and fired several shots, in view of which Clemente
Babiera struck right and left with his bolo, thus causing the former's wounds.
In order to decide the question thus raised, it is necessary to take into
account all the circumstances, previous, coetaneous and subsequently to the
incident in question, and to determine who had, or could have had, motives
to assault the other.
We have seen that Justo Babiera sold two parcels of land to Basilio Copreros
with the right of repurchase, and that, having failed to repurchase them
within the period stipulated, the title thereto was consolidated, in the

purchaser, who leased them to Severino Haro, the latter taking possession of
them. Justo Babiera restored to every lawful means to regain possession of
said parcels of land, first by an accion publiciana, which failed, and then by
an action for the recovery of possession. Severino Haro paid the expenses of
Basilio Copreros in order to carry on the suits. Such interested intervention on
Severino Haro's part without doubt must have vexed Justo Babiera, for in the
month of May 1927, he went with his copartner on shares, Rosendo Paycol, to
where Fermin Bruces, Severino Haro's copartner, was plowing, and asked him
who had ordered him there, and when Fermin Bruces answered that it was
Severino Haro, Justo asked him whether he would commit suicide if told to do
so by said Severino Haro, and then told him to tell his master to go and plow
himself. Later on, Clemente Babiera, Justo Babiera's son, accompanied by his
copartner Rosendo Paycol, seeing that Fermin Bruces went on working the
land, told him that if he continued plowing, Clemente would pull out
someone's intestines. If all these threats are true, as we believe they are,
then Justo Babiera and Clemente Babiera must have borne Severino Haro
deep resentment, doubtless believing that it was due to him that they could
not recover their two parcels of land, and this was sufficient and adequate to
move them, upon the failure of lawful means, to resort to violence.
It has been contended by the defense that the defendant-appellant,
Clemente Babiera, only acted in defense of his life and property, having been
obliged to resort to arms on seeing his life endangered, contending that the
provocation consisted in that after Severino Haro had agreed to an indemnity
of P2 for the damage caused, the latter wanted to take Clemente Babiera's
cow to the town, and that the attack consisted in that Margarito Mediavilla
gave him a bolo blow on the little finger of the right hand, and that Severino
Haro threatened him with his revolver and fired several shots at him.
Examined in the light of the ordinary conduct of men, Severino Haro's alleged
attitude, in having tried to take Clemente Babiera's cow after having agreed
to accept P2 for the damages, and having ordered that the animal be
returned to its owner, is highly illogical, and not a scintilla of evidence has
been presented to explain this change of determination, as unexpected as it
is unreasonable.
With respect to the allegation that Margarito Mediavilla and Severino Haro
began the attack, inasmuch as it has not been proved that they were the
instigators, it cannot be conceived that they committed said unlawful
aggression, for he who has no reason to provoke, has no reason to attack
unlawfully.

Another circumstance which shows the falsity of the theory of the defense is
that of having made Buenaventura Cabalfin take part as the person whom
Severino Haro employed to lead Clemente Babiera's cow. If Severino Haro's
copartner, Fermin Bruces, whom he had told to return said cow to Clemente
Babiera was with his master on that night, together with other companions,
what need was there of said Severino Haro's employing the services of
another person and one not belonging to his group? The plan of the defense
necessitated a provocation and to that end they conceived the idea of the
breach of the supposed agreement on the return of the animal through the
payment of an indemnity of P2, making use as an instrument of one on whom
the defense could depend to serve as witness, and there was no one better
suited for such a purpose than Buenaventura Cabalfin who according to the
witnesses for the prosecution, was at the place of the crime with Gregorio
Paycol threatening the deceased's friends if they offered to help him.
To rebut the evidence of the prosecution that Dominga Bores was the one
who by order of Clemente Babiera took Severino Haro's revolver from him on
the night in question, the defense tried to prove that on the following
morning attorney Buenaventura Cordova, a relative of the Babieras, told
Dominga Bores to return to the place of the incident and look for said
weapon, and that she found it in a furrow near the place and took it to the
office of the Constabulary in Iloilo between 9 and 10 o'clock in the morning.
But the rebuttal evidence of the prosecution disproved this contention and
showed that Dominga Bores did not have to look for the revolver in the field,
since at half past five in the morning she was already in the provincial
building of Iloilo carrying a package under her arm.
With regard to the small wound at the base of the little finger of the right
hand which Clemente Babiera showed to the Constabulary physician as
having been caused by Margarito Mediavilla, we are convinced that the latter
was not in the company of Severino Haro on the night in question and could
not have inflicted such a wound. Bearing in mind the plan of the defense, it
may safely be said that in order to cast an appearance of reality on the
concocted plea of an unlawful attack and self-defense, Clemente Babiera
inflicted on himself the slight wound; since, if in order to escape military
service there were men who mutilated themselves, who would not wound
himself slightly in order to escape a life penalty?

The defense also attempted to prove that Severino Haro was of a

quarrelsome disposition, provoking, irascible, and fond of starting quarrels in
the municipality of Oton, but the trial judge would not permit it.

The facts related above have been proven beyond a reasonable doubt and
constitute the crime of murder defined in article 403 of the Penal Code, there
being present at the commission of the crime, the qualifying circumstance of
treachery, consisting in the accused Clemente Babiera having attacked
Severino Haro suddenly while the latter had his back turned, inflicting various
wounds on his body as a result of which he died a week later, said Clemente
Babiera being criminally liable as principal by direct participation.

While it is true that when the defense of the accused is that he acted in selfdefense, he may prove the deceased to have been of a quarrelsome,
provoking and irascible disposition, the proof must be of his general
reputation in the community and not of isolated and specific acts (Underhill
Criminal Evidence, par. 325, p.570), such as the accused Clemente Babiera
tried to prove, and hence the lower court did not err in not admitting such
proof. But even if it had been proved by competent evidence that the
deceased was of such a disposition, nevertheless, it would not have been
sufficient to overthrow the conclusive proof that it was the said accused who
treacherously attacked the deceased.

Justo Babiera and Dominga Bores are also liable but as accomplices, because,
while they did not take a direct part in the infliction of the wounds that
caused Severino Haro's death, or cooperated by acts without which they
could not have been inflicted, or induced Clemente Babiera to inflict them,
yet they took part in the commission of the crime by simultaneous acts
consisting in the former having mounted Severino Haro's body and held down
his hands, while the latter sat on his knees while he lay stretched out on the
ground in order to allow Clemente Babiera to search the body for his revolver,
Justo Babiera and Dominga Bores cannot be held as accomplices of the crime
of murder, inasmuch as it does not appear to have been proven that they

knew the manner in which Clemente Babiera was going to assault Severino
Haro, in accordance with the provision of article 79 of the Penal Code, to the
effect that the circumstances which consist in the material execution of the
act, or in the means employed to accomplish it, shall serve to aggravate or
mitigate the liability of those persons only who had knowledge of them at the
time of the act or their cooperation therein. Although in the instant case the
treachery is not considered a generic aggravating, but a qualifying
circumstance, nevertheless, it does not fail to produce a special aggravation.
To graduate the penalty, we are not to consider any modifying circumstance
of the criminal liability, for while it is true that Clemente Babiera took
advantage of the darkness of nighttime, this circumstance is included in
treachery, inasmuch as, considering the fact that Severino Haro was followed
by several companions, the accused would not have been able to conceal
himself in the cogon grass nor attack the deceased from behind without
being seen in time and prevented from executing his criminal purpose had
not been for the darkness of the night.
The penalty provided by law for the crime of murder namely, that of cadena
temporal in its maximum degree to death must therefore be imposed upon
Clemente Babiera in its medium degree, that is, life imprisonment.
The penalty provided for in article 404 of the Penal Code for the crime of
homicide is reclusion temporal in its full extent, and the one next lower
is prision mayor in its full extent, which is the penalty that must be imposed
on Justo Babiera and Dominga Bores as accomplices in the crime of homicide
(art. 67, Penal Code). In graduating the penalty, the aggravating
circumstances of nocturnity must be taken into consideration, without any
extenuating circumstances to offset it, and therefore said penalty of prision
mayor must be imposed in its maximum degree, that is, ten years and 1 day.
As there are three persons civilly liable, one as principal in the crime of
murder and two as accomplices in that of homicide, we must fix the share,
for which each must answer, of the P1,000 fixed by the trial court, in
accordance with the provision of article 124 of the Penal Code, that is, P600
for Clemente Babiera and P400 for Justo Babiera and Dominga Bores, each of
the latter being liable solidarily between themselves for their share, and
subsidiarily liable for the share of the former and the former for the share of
the latter, according to the provision of article 125 of the same Code.
By virtue whereof, the appealed judgment is hereby modified, and it is held
that Justo Babiera and Dominga Bores are guilty of the crime of homicide as
accomplices and each sentenced to ten years and 1 day prision mayor, and
to pay the sum of P400 jointly and severally, and Clemente Babiera to pay
the sum of P600, the former to be subsidiarily liable for the latter's share, and
the latter for the former's share, payment to be made to the heirs of the
deceased Severino Haro, the appealed judgment being affirmed in all other
respects with the proportional costs against each. So ordered.

ALEJANDRO FUENTES, JR., petitioner, vs. COURT OF APPEALS and

PEOPLE OF THE PHILIPPINES, respondents.
DECISION
BELLOSILLO, J.:
Still professing innocence and insisting that he is a victim of mistaken
identity, petitioner Alejandro Fuentes, Jr., seeks reversal of the decision of the
Court of Appeals affirming his conviction for murder.[1]
At four o clock in the morning of 24 June 1989 Julieto Malaspina together
with Godofredo Llames, Honorio Osok and Alberto Toling, was at a benefit
dance at Dump Site, Tudela, Trento, Agusan del Sur. Petitioner called
Malaspina and placed his right arm on the shoulder of the latter saying,
Before, I saw you with a long hair but now you have a short hair.[2]Suddenly
petitioner stabbed Malaspina in the abdomen with a hunting knife. Malaspina
fell to the ground and his companions rushed to his side. Petitioner fled.
Before the victim succumbed to the gaping wound on his abdomen he
muttered that Alejandro Fuentes, Jr., stabbed him.[3]
Dr. Porfirio L. Salubre, the Rural Health Physician who autopsied the
cadaver of Julieto Malaspina on 24 July 1989, reported that death was due to
stab wound at left lumbar region I V2in. in length with extracavitation of the
small and large intestines.[4]
Petitioner claims on the other hand that it was his cousin Zoilo Fuentes,
Jr., alias Jonie who knifed Malaspina; that when the victim was killed he was
conversing with him; that he was compelled to run away when he heard that
somebody with a bolo and spear would kill all those from San Isidro because
Jonie, the killer, was from that place; that since he was also from San Isidro
he sought refuge in his brothers house where he met Jonie; that Jonie
admitted spontaneously that he stabbed Malaspina because after a boxing
match before the latter untied his gloves and punched him; that as there
were many persons milling around the house Jonie jumped out and escaped
through the window; that he was arrested at eight oclock in the morning of
24 June 1989 while he was in a store in the barangay.[5]
The Regional Trial Court of Prosperidad, Agusan del Sur, found petitioner
guilty of murder qualified by treachery and imposed on him an indeterminate
prison term of ten (10) years and one (1) day of prision mayor as minimum to
seventeen (17) years and four (4) months of reclusion temporal as maximum,
to indemnify the heirs of the victim Julieto Malaspina the amount of
P50,000.00 and to pay P8,300.00 as actual damages plus costs.[6]
The Court of Appeals affirmed the judgment of the trial court; hence, this
petition for review.

[G.R. No. 111692. February 9, 1996]

Petitioner contends that the appellate court erred when it held that
petitioner was positively and categorically identified as the killer of

Malaspina, in affirming the judgment of conviction and in holding petitioner

liable for damages to the heirs of the victim.
Petitioner points to an alleged inconsistency between the testimonies of
prosecution witnesses Alberto Toling and Honorio Osok to the effect that they
saw petitioner stab Malaspina on the right lumbar region, and the testimony
of the attending physician that the victim was stabbed on the left lumbar
region.
This discrepancy is inconsequential. What is material is that Malaspina
was stabbed to death and that three (3) prosecution witnesses positively
identified petitioner as the knife wielder. It must be stressed that these
witnesses had known petitioner for quite some time and never had any
personal misunderstanding nor altercation with the latter as to create any
suspicion that they were impelled by ill motives to falsely implicate him.
That it was another person who committed the offense is too incredible.
No less than petitioners own witness, Nerio Biscocho who claimed he also
saw the killing, testified that Alejandro Fuentes, Jr., the petitioner, and Jonie
Fuentes are one and the same person. Thus COURT:
Q. Who is this Joni Fuentes and Alejandro Fuentes?
A. That Joni Fuentes is the same of that or the accused Alejandro
Fuentes. I do not know his real name but he is called as Joni,
sir, x x x[7]
On cross-examination witness Biscocho further admitted that he himself
would call petitioner Alejandro Fuentes, Jr., as Joni or Jonie Fuentes, as some
of his friends did, but victim Malaspina occasionally called petitioner Junior.[8]
Petitioner would make much of the alleged confession of Zoilo Fuentes,
Jr., since it is a declaration against penal interest and therefore an exception
to the hearsay rule. The so-called confession of Zoilo was allegedly given to
Felicisimo Fuentes, the uncle of petitioner and Zoilo, who in turn relayed the
matter to P/Sgt. Benjamin Conde, Jr. Felicisimo testified that on 24 June 1989
while he was at Barangay San Isidro, Zoilo Fuentes, Jr., confessed that he
killed Malaspina in retaliation; that he even showed him the knife he used
and asked his help in finding a lawyer, in securing bail and, if possible, in
working out a settlement with the relatives of the deceased. The following
day however he learned that the self-confessed killer was gone and that
petitioner had been arrested for a crime he did not commit.[9]
For his part, Station Commander P/Sgt. Conde, Jr., testified that after the
criminal information for murder was filed on 26 July 1989, petitioner met
Felicisimo who informed him of the disclosure by Zoilo. Conde then advised
Felicisimo that if it was true that it was Zoilo who fatally stabbed Malaspina
Felicisimo must persuade Zoilo to surrender. Conde then personally went to
Barangay San Isidro to investigate. There he was told by the townsfolk that

Zoilo had already fled).[10]

One of the recognized exceptions to the hearsay rule is that pertaining
to declarations made against interest. Sec. 38 of Rule 130 of the Rules of
Court provides that (t)he declaration made by a person deceased, or unable
to testify, against the interest of the declarant, if the fact asserted in the
declaration was at the time it was made so far contrary to declarants own
interest, that a reasonable man in his position would not have made the
declaration unless he believed it to be true, may be received in evidence
against himself or his successors in interest and against third persons. The
admissibility in evidence of such declaration is grounded on necessity and
trustworthiness.[11]
There are three (3) essential requisites for the admissibility of a
declaration against interest: (a) the declarant must not be available to testify;
(b) the declaration must concern a fact cognizable by the declarant; and (c)
the circumstances must render it improbable that a motive to falsify existed.
In the instant case, we find that the declaration particularly against
penal interest attributed to Zoilo Fuentes Jr. is not admissible in evidence as
an exception to the hearsay rule. We are not unaware of People Toledo,[12] a
1928 case, where Justice Malcolm writing for the Court endeavored to
reexamine the declaration of third parties made contrary to their penal
interest. In that case, the protagonists Holgado and Morales engaged in a bob
duel. Morales was killed almost instantly. Holgado who was seriously
wounded gave a sworn statement (Exh. 1) before the municipal president
declaring that when he and Morales fought there was nobody else present.
One (1) month later Holgado died from his wounds. While the Court was
agreed thatToledo, who reportedly intervened in the fight and dealt the
mortal blow, should be exonerated on reasonable doubt, the members did
not reach an accord on the admissibility of Exh. 1. One group would totally
disregard Exh. 1 since there was ample testimonial evidence to support an
acquittal. The second group considered Exh. 1 as part of the res gestae as it
was made on the same morning when the fight occurred. A third group, to
which Justice Malcolm belonged, opined that the court below erred in not
admitting Exh. 1 as the statement of a fact against penal interest.
For all its attempt to demonstrate the arbitrariness behind the rejection
in certain cases of declarations against penal interest, the Toledo case cannot
be applied in the instant case which is remarkably different. Consider this
factual scenario: the alleged declarant Zoilo Fuentes Jr., a cousin of accusedappellant, verbally admitted to the latter, and later to their common uncle
Felicisimo Fuentes, that he (Zoilo) killed the victim because of a grudge, after
which he disappeared. One striking feature that militates against the
acceptance of such a statement is its patent untrustworthiness. Zoilo who is
related to accused-appellant had every motive to prevaricate. The same can
be said of accused-appellant and his uncle Felicisimo. Secondly, we need not
resort to legal rhetorics to find that the admission of such a statement may
likewise be, according to Wigmore, shocking to the sense of justice.[13] Let
us assume that the trial court did admit the statement of Zoilo and on that
basis acquitted accused-appellant. Let us assume further that Zoilo was
subsequently captured and upon being confronted with his admission of guilt
readily repudiated the same. There is nothing, absolutely nothing, that can

bind Zoilo legally to that statement.

But more importantly, the far weightier reason why the admission
against penal interest cannot be accepted in the instant case is that the
declarant is not unable to testify. There is no showing that Zoilo is either
dead, mentally incapacitated or physically incompetent which Sec. 38
obviously contemplates. His mere absence from the jurisdiction does not
make him ipso facto unavailable under this rule.[14] For it is incumbent upon
the defense to produce each and every piece of evidence that can break the
prosecution and assure the acquittal of the accused. Other than the
gratuitous statements of accused-appellant and his uncle to the effect that
Zoilo admitted having killed Malaspina, the records show that the defense did
not exert any serious effort to produce Zoilo as a witness. Lest we be
misunderstood, the Court is always for the admission of evidence that would
let an innocent declaration of guilt by the real culprit. But this can be open to
abuse, as when the extrajudicial statement is not even authenticated thus
increasing the probability of its fabrication; it is made to persons who have
every reason to lie and falsify; and it is not altogether clear that the declarant
himself is unable to testify. Thus, for this case at least, exclusion is the
prudent recourse as explained in Toledo -The purpose of all evidence is to get
at the truth. The reason for the hearsay rule is that the extrajudicial and
unsworn statement of another is not the best method of serving this purpose.
In other words, the great possibility of the fabrication of falsehoods, and the
inability to prove their untruth, requires that the doors be closed to such
evidence.[15]
The Court of Appeals as well as the trial court correctly determined the
crime to be murder qualified by treachery. The suddenness of the attack,
without any provocation from the unsuspecting victim, made the stabbing of
Malaspina treacherous.[16] However, the court a quo erred in imposing an
indeterminate prison term of ten (10) years and one (1) day of prision
mayor as minimum to seventeen (17) years and four (4) months of reclusion
temporal as maximum. Murder under Art. 248 of The Revised Penal Code is
punishable by reclusion temporalin its maximum period to death. Since aside
from treachery qualifying the crime to murder there is no other modifying
circumstance proved, the medium period of the penalty, i.e. reclusion
perpetua, should have been imposed on petitioner.[17]
Petitioner maintains that assuming that he committed the crime it is
error to hold him answerable for P8,300.00 as actual damages on the basis of
the mere testimony of the victims sister, Angelina Serrano, without any
tangible document to support such claim. This is a valid point. In crimes and
quasi-delicts, the defendant is liable for all damages which are the natural
and probable consequences of the act or omission complained of.[18] To seek
recovery for actual damages it is essential that the injured party proves the
actual amount of loss with reasonable degree of certainty premised upon
competent proof and on the best evidence available.[19] Courts cannot
simply rely on speculation, conjecture or guesswork in determining the fact
and amount of damages.[20]
The award by the court a quo of P8,300.00 as actual damages is not
supported by the evidence on record. We have only the testimony of the
victims elder sister stating that she incurred expenses of P8,300.00 in

connection with the death of Malaspina.[21] However, no proof of the actual

damages was ever presented in court. Of the expenses alleged to have been
incurred, the Court can only give credence to those supported by receipts
and which appear to have been genuinely expended in connection with the
death of the victim. Since the actual amount was not substantiated, the same
cannot be granted.[22]
WHEREFORE, the judgment appealed from finding petitioner
ALEJANDRO FUENTES JR. guilty of MURDER and directing him to indemnify the
heirs of Julieto Malaspina in the amount of P50,000.00 plus costs is AFFIRMED
with the modification that the penalty imposed should be as it is corrected to
reclusion perpetua, and the award of actual damages is deleted.
SO ORDERED.

G.R. NO. 146556

April 19, 2006

DANILO
L.
vs.
SIMEON B. PRUDENCIO, Respondent.

PAREL, Petitioner,

DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari filed by Danilo Parel (petitioner)
which seeks to set aside the Decision 1 dated March 31, 2000 of the Court of
Appeals (CA) which reversed the Decision of the Regional Trial Court (RTC),
Branch 60, Baguio, in Civil Case No. 2493-R, a case for recovery of possession
and damages. Also assailed is CA Resolution2 dated November 28, 2000.
On February 27, 1992, Simeon Prudencio (respondent) filed a complaint for
recovery of possession and damages against petitioner with the RTC Baguio
alleging that: he is the owner of a two-storey residential house located at No.
61 Forbes Park National Reservation near Department of Public Service (DPS)
compound, Baguio City; such property was constructed solely from his own
funds and declared in his name under Tax Declaration No. 47048; he
commenced the construction of said house in 1972 until its completion three
years later; when the second floor of said house became habitable in 1973,
he allowed petitioners parents, Florentino (now deceased) and Susan Parel,
to move therein and occupy the second floor while the construction of the
ground floor was on-going to supervise the construction and to safeguard the
materials; when the construction of the second floor was finished in 1975,
respondent allowed petitioners parents and children to transfer and
temporarily reside thereat; it was done out of sheer magnanimity as
petitioners parents have no house of their own and since respondents wife
is the older sister of Florentino, petitioners father; in November 1985,
respondent wrote Florentino a notice for them to vacate the said house as the
former was due for retirement and he needed the place to which petitioners
parents heeded when they migrated to U.S. in 1986; however, without
respondents knowledge, petitioner and his family unlawfully entered and
took possession of the ground floor of respondents house; petitioners refusal

to vacate the house despite repeated demands prompted respondent to file

the instant action for recovery of possession. Respondent also asked
petitioner for a monthly rental of P3,000.00 from April 1988 and every month
thereafter until the latter vacates the said premises and surrender possession
thereof; and for moral and exemplary damages, attorneys fees and cost of
suit.
Petitioner filed his Answer with Counterclaim alleging that: his parents are the
co-owners of the said residential house, i.e., the upper story belongs to
respondent while the ground floor pertains to petitioners parents; he is
occupying the ground floor upon the instruction of his father, Florentino, with
respondents full knowledge; his parents spent their own resources in
improving and constructing the said two-storey house as co-owners thereof;
the late Florentino was an awardee of the land on which the house stands
and as a co-owner of the house, he occupied the ground floor thereof; the
demand to vacate was respondents attempt to deprive petitioners parents
of their rights as co-owner of the said house; that respondent had filed
ejectment case as well as criminal cases against them involving the subject
house which were all dismissed. Petitioner asked for the dismissal of the
complaint and prayed for damages and attorneys fees.
After trial on the merits, the RTC rendered a Decision 3 dated December 15,
1993, the dispositive portion of which reads:
WHEREFORE, premises considered, the Court hereby declares that the house
erected at No. 61 DPS Compound, Baguio City is owned in common by the
late Florentino Parel and herein plaintiff Simeon Prudencio and as such the
plaintiff cannot evict the defendant as heirs of the deceased Florentino Parel
from said property, nor to recover said premises from herein defendant.
Likewise, the plaintiff is ordered to:
(a) pay the defendant in the total sum of P20,000.00 for moral and
actual damages;
(b) pay the defendant P20,000.00 in Attorneys fees and P3,300.00 in
appearance fees;
(c) pay the costs of this suit.4
The RTC found the following matters as conclusive: that petitioners father
was an allocatee of the land on which the subject house was erected, as one
of the lowly-paid government employees at that time when then Mayor Luis
Lardizabal gave them the chance to construct their own house on said
reservation; that respondent failed to show proof of any contract, written or
oral, express or implied, that the late Florentino and his family stayed on the
house not as co-owners but as mere lessees, nor any other proof that would
clearly establish his sole ownership of the house; and, that the late Florentino
was the one who gathered the laborers for the construction of the house and
paid their salaries. Thus, the RTC ruled that co-ownership existed between
respondent and petitioners father, Florentino.
The RTC concluded that respondent and petitioners father agreed to
contribute their money to complete the house; that since the land on which
said house was erected has been allocated to petitioners father, the parties
had the understanding that once the house is completed, petitioners father
could keep the ground floor while respondent the second floor; the trial court
questioned the fact that it was only after 15 years that respondent asserted

his claim of sole ownership of the subject house; respondent failed to

disprove that petitioners father contributed his own funds to finance the
construction of the house; that respondent did not question (1) the fact that it
was the deceased Florentino who administered the construction of the house
as well as the one who supplied the materials; and (2) the fact that the land
was in Florentinos possession created the impression that the house indeed
is jointly owned by respondent and Florentino.
The RTC did not give credence to the tax declaration as well as the several
documents showing the City Assessors assessment of the property all in
respondents name since tax declarations are not conclusive proof of
ownership. It rejected the affidavit executed by Florentino declaring the
house as owned by respondent saying that the affidavit should be read in its
entirety to determine the purpose of its execution; that it was executed
because of an advisement addressed to the late Florentino by the City
Treasurer concerning the propertys tax assessment and Florentino, thought
then that it should be the respondent who should pay the taxes; and that the
affidavit cannot be accepted for being hearsay.
Aggrieved by such decision, respondent appealed to the CA. In a Decision
dated March 31, 2000, the CA reversed the trial court and declared
respondent as the sole owner of the subject house and ordered petitioner to
surrender possession of the ground floor thereof to respondent immediately.
It also ordered petitioner to pay respondent a monthly rental of P2,000.00 for
use or occupancy thereof from April 1988 until the former actually vacates
the same and the sum of P50,000.00 as attorneys fees and cost of suit.
The CA found as meritorious respondents contention that since petitioner
failed to formally offer in evidence any documentary evidence, there is
nothing to refute the evidence offered by respondent. It ruled that the trial
courts statement that "defendants occupancy of the house is due to a
special power of attorney executed by his parents most specially the
deceased Florentino Parel who is in fact a co-owner of said building" is
wanting of any concrete evidence on record; that said power of attorney was
never offered, hence, could not be referred to as petitioners evidence to
support his claim; that except for the bare testimonies of Candelario Regua,
the carpenter-foreman, that it was Florentino who constructed the house and
Corazon Garcia, the former barangay captain, who testified that the lot was
allocated to petitioners father, there was no supporting document which
would sufficiently establish factual bases for the trial courts conclusion; and
that the rule on offer of evidence is mandatory.
The CA found the affidavit dated September 24, 1973 of Florentino,
petitioners father, stating that he is not the owner of the subject house but
respondent, as conclusive proof of respondents sole ownership of the subject
house as it is a declaration made by Florentino against his interest. It also
found the tax declarations and official receipts representing payments of real
estate taxes of the questioned property covering the period 1974 to 1992
sufficient to establish respondents case which constitute at least proof that
the holder has a claim of title over the property.
Petitioners motion for reconsideration was denied in a Resolution dated
November 28, 2000.1avvphil.net
Hence, the instant petition for review on certiorari with the following
Assignment of Errors:

1. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING

RESPONDENT AS THE OWNER OF THE BUILDING AT 61 FORBES PARK
NATIONAL
RESERVATION,
NEAR
DPS
COMPOUND,
BAGUIO
CITY,
NOTWITHSTANDING THE FINDING OF THE REGIONAL TRIAL COURT OF COOWNERSHIP BETWEEN THE LATE FLORENTINO PAREL AND RESPONDENT;
2. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
ORDERING PETITIONER TO SURRENDER POSSESSION OF THE
GROUND FLOOR OF THE SUBJECT BUILDING TO RESPONDENT;
3. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
ORDERING PETITIONER TO PAY RESPONDENT P2,000.00/MONTH
FOR USE OR OCCUPANCY OF THE SUBJECT PREMISES FROM
APRIL 1988 UNTIL PETITIONER ACTUALLY VACATES THE SAME;
4. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
ORDERING PETITIONER TO PAY TO RESPONDENT P50,000.00
ATTORNEYS FEES AND COSTS OF SUIT;
5. THE HONORABLE COURT OF APPEALS ERRED IN DENYING
PETITIONERS MOTION FOR RECONSIDERATION. 5

questions of law are appealable to this Court under Rule 45. However,
considering that the findings of the RTC and CA are contradictory, the review
of the case is in order.7
We agree with the CA that respondent had shown sufficient evidence to
support his complaint for recovery of possession of the ground floor of the
subject house as the exclusive owner thereof. Respondent presented the
affidavit dated September 24, 1973 executed by Florentino and sworn to
before the Assistant City Assessor of Baguio City, G.F. Lagasca, which reads:
I, FLORENTINO PAREL, 42 years of age, employee, and residing at Forbes
Park, Reservation No. 1, after having been sworn to according to law depose
and say:
That he is the occupant of a residential building located at Forbes Park,
Reservation No. 1, Baguio City which is the subject of an advicement
addressed to him emanating from the Office of the City Assessor, Baguio City,
for assessment and declaration for taxation purposes;
That I am not the owner of the building in question;
That the building in question is owned by Mr. Simeon B. Prudencio who is
presently residing at 55 Hyacinth, Roxas District, Quezon City.
Further, affiant say not.8 (Underscoring supplied)

Petitioner concedes that while his former counsel failed to make a formal
offer of his documentary evidence before the trial court and that the court
shall consider no evidence which has not been formally offered, he maintains
that the said rule is not absolute, citing the case of Bravo, Jr. v. Borja; 6 that
his documentary evidence which were not formally offered in evidence were
marked during the presentation of the testimony of petitioners witnesses
and were part of their testimonies; that these evidence were part of the
memorandum filed by him before the trial court on July 12, 1993.

Section 38 of Rule 130 of the Rules of Court provides:

Petitioner insists that even in the absence of the documentary evidence, his
testimony as well as that of his witnesses substantiated his claim of coownership of the subject house between his late father and respondent as
found by the trial court.

The theory under which declarations against interest are received in

notwithstanding they are hearsay is that the necessity of the
renders the reception of such evidence advisable and, further
reliability of such declaration asserts facts which are against
pecuniary or moral interest.9

Petitioner argues that the CA erred in finding the affidavit of petitioners

father declaring respondent as owner of the subject house as conclusive
proof that respondent is the true and only owner of the house since the
affidavit should be read in its entirety to determine the purpose for which it
was executed.
Petitioner further contends that since he had established his fathers coownership of the subject house, respondent has no legal right to eject him
from the property; that he could not be compelled to pay rentals for residing
in the ground floor of the subject house; that respondent should bear his own
expenses and be adjudged liable for damages which petitioner sustained for
being constrained to litigate.
The principal issue for resolution is whether petitioner was able to prove by
preponderance of evidence that his father was a co-owner of the subject twostorey residential house.
The issue raised by petitioner is mainly factual in nature. In general, only

SEC. 38. Declaration against interest. The declaration made by a person

deceased, or unable to testify, against the interest of the declarant, if the fact
asserted in the declaration was at the time it was made so far contrary to the
declarant's own interest, that a reasonable man in his position would not
have made the declaration unless he believed it to be true, may be received
in evidence against himself or his successors-in-interest and against third
persons.
evidence
occasion
that the
his own

The affiant, Florentino, who died in 1989 was petitioners father and had
adequate knowledge with respect to the subject covered by his statement. In
said affidavit, Florentino categorically declared that while he is the occupant
of the residential building, he is not the owner of the same as it is owned by
respondent who is residing in Quezon City. It is safe to presume that he would
not have made such declaration unless he believed it to be true, as it is
prejudicial to himself as well as to his childrens interests as his heirs. 10 A
declaration against interest is the best evidence which affords the greatest
certainty of the facts in dispute. 11 Notably, during Florentinos lifetime, from
1973, the year he executed said affidavit until 1989, the year of his death,
there is no showing that he had revoked such affidavit even when a criminal
complaint for trespass to dwelling had been filed by respondent against him
(Florentino) and petitioner in 1988 regarding the subject house which the trial
court dismissed due to the absence of evidence showing that petitioner
entered the house against the latters will and held that the remedy of

respondent was to file an action for ejectment; 12 and even when a complaint
for unlawful detainer was filed against petitioner and his wife also in 1988
which was subsequently dismissed on the ground that respondents action
should be an accion publiciana which is beyond the jurisdiction of the
Municipal Trial Court.13
Moreover, the building plan of the residential house dated January 16, 1973
was in the name of respondent and his wife. It was established during
petitioners cross-examination that the existing structure of the two-storey
house was in accordance with said building plan. 14
Notably, respondent has been religiously paying the real estate property
taxes on the house declared under his name since 1974. 15 In fact, petitioner
during his cross-examination admitted that there was no occasion that they
paid the real estate taxes nor declared any portion of the house in their
name.16

by the parties to the suit. 21 It is a settled rule that the mere fact that a
particular document is identified and marked as an exhibit does not mean
that it has thereby already been offered as part of the evidence of a party. 22
Petitioner insists that although his documentary evidence were not formally
offered, the same were marked during the presentation of the testimonial
evidence, thus it can properly be taken cognizance of relying in Bravo, Jr. v.
Borja.23
Such reliance is misplaced. In Bravo Jr., we allowed evidence on minority by
admitting the certified true copy of the birth certificate attached to a motion
for bail even if it was not formally offered in evidence. This was due to the
fact that the birth certificate was properly filed in support of a motion for bail
to prove petitioners minority which was never challenged by the prosecution
and it already formed part of the records of the case. The rule referred to in
the Bravo case was Section 7 of Rule 133 of the Rules of Court which
provides:

We agree with the CA that while tax receipts and declarations are not
incontrovertible evidence of ownership, they constitute at least proof that the
holder has a claim of title over the property. 17 The house which petitioner
claims to be co-owned by his late father had been consistently declared for
taxation purposes in the name of respondent, and this fact, taken with the
other circumstances above-mentioned, inexorably lead to the conclusion that
respondent is the sole owner of the house subject matter of the litigation.

Section 7. Evidence on motion.- When a motion is based on facts not

appearing of record, the court may hear the matter on affidavits or
depositions presented by the respective parties, but the court may direct that
the matter be heard wholly or partly on oral testimony or depositions.

Respondent having established his claim of exclusive ownership of the

subject property, it was incumbent upon petitioner to contravene
respondents claim. The burden of evidence shifted to petitioner to prove that
his father was a co-owner of the subject house.

Even assuming arguendo that the documentary evidence of petitioner should

be considered in his favor, the evidence showing that respondent had filed
civil and criminal cases against petitioner which were dismissed as well as
the alleged Special Power of Attorney of petitioners parents whereby they
authorized petitioner to stay in the ground floor of the house, did not
establish co-ownership of Florentino and respondent of the subject house.

We held in Jison v. Court of Appeals, to wit:18

xxx Simply put, he who alleges the affirmative of the issue has the burden of
proof, and upon the plaintiff in a civil case, the burden of proof never parts.
However, in the course of trial in a civil case, once plaintiff makes out a prima
facie case in his favor, the duty or the burden of evidence shifts to defendant
to controvert plaintiff's prima facie case, otherwise, a verdict must be
returned in favor of plaintiff. Moreover, in civil cases, the party having the
burden of proof must produce a preponderance of evidence thereon, with
plaintiff having to rely on the strength of his own evidence and not upon the
weakness of the defendants. The concept of "preponderance of evidence"
refers to evidence which is of greater weight, or more convincing, that which
is offered in opposition to it; at bottom, it means probability of truth. 19
In this case, the records show that although petitioners counsel asked that
he be allowed to offer his documentary evidence in writing, he, however, did
not file the same.20 Thus, the CA did not consider the documentary evidence
presented by petitioner. Section 34 of Rule 132 of the Rules of Court provides:
Section 34. Offer of evidence. The court shall consider no evidence which
has not been formally offered. The purpose for which the evidence is offered
must be specified.
A formal offer is necessary because it is the duty of a judge to rest his
findings of facts and his judgment only and strictly upon the evidence offered

and not Section 34 of Rule 132 of the Rules of Court which is the one
applicable to the present case.

The testimonies of petitioner and his witnesses failed to show that the
subject house is co-owned by petitioners father and respondent.
Candelario Regua merely testified that he was hired by petitioners father,
Florentino, to construct the residential building in 1972; 24 that he listed the
materials to be used for the construction which was purchased by
Florentino;25 that he and his men received their salaries every Saturday and
Wednesday from Florentino or his wife, respectively; 26 that he had not met
nor seen respondent during the whole time the construction was ongoing.27 On cross-examination, however, he admitted that he cannot tell
where the money to buy the materials used in the construction came from. 28
Corazon Garcia merely testified that Florentino started building the house
when he was allocated a lot at DPS compound, that she knew Florentino
constructed the subject house29 and never knew respondent. 30 The bare
allegation that Florentino was allocated a lot is not sufficient to overcome
Florentinos own affidavit naming respondent as the owner of the subject
house.
Petitioner himself testified that it was his father who saw the progress of the
construction and purchased the materials to be used; 31 and as a young boy
he would follow-up some deliveries upon order of his father

32 and never saw

respondent in the construction site. The fact that not one of the witnesses
saw respondent during the construction of the said house does not establish
that petitioners father and respondent co-owned the house.
We also find that the CA did not err in ordering petitioner to pay respondent
being the sole owner of the subject house a monthly rental of P2,000.00 from
April 1988, the date of the extra-judicial demand, until petitioner actually
vacates the subject house. Although the CA made no ratiocination as to how
it arrived at the amount of P2,000.00 for the monthly rental, we find the
same to be a reasonable compensation for the use of the ground floor of the
subject house which consists of a living room, a dining room, a kitchen and
three bedrooms. The rental value refers to the value as ascertained by proof
of what the property would rent or by evidence of other facts from which the
fair rental value may be determined. 33
We likewise affirm the CAs award of attorneys fees in favor of respondent.
Article 2208 of the Civil Code allows the recovery of attorneys fees in cases
when the defendants act or omission has compelled the plaintiff to litigate
with third persons or to incur expenses to protect his interest 34 and in any
other case where the court deems it just and equitable that attorneys fees
and expenses of litigation should be recovered 35 which are both shown in
the instant case.
WHEREFORE, the decision of the Court of Appeals dated March 31, 2000 and
its Resolution dated November 28, 2000 are AFFIRMED.
Costs against petitioner.

In view of the above, you are hereby advised of your separation from
the service effective immediately unless you can show valid proof in
the form of a baptismal or birth certificate that you are below sixtyfive years of age today.
A few days later the respondent Eutiquio Mamigo was designated teacher-incharge of the said elementary school.
On August 31, 1964 the petitioner wrote the Director of Public Schools,
protesting his forced retirement on the ground that the date of his birth is not
November 26, 1897 but December 11, 1901. Attached to his letter was the
affidavit, executed on July 26, 1962, of Lazaro Bandoquillo and Pedro A.
Sienes both of Amlan Negros Oriental, in which these two affiants declared
that they knew that the petitioner "was born on December 11, 1901, in the
Municipality of Amlan formerly known as New Ayuquitan Province of Negros
Oriental, Philippines" because, "we were the neighbors of the late spouses,
NEPOMUCENO GRAVADOR and AGUEDA REGOROSA [petitioner's parents],
and we were present when said PEDRO GRAVADOR was born; furthermore,we
were also invited during the baptismal party a few weeks after the birth of
said PEDRO GRAVADOR."
On October 19, 1964 the petitioner wrote to the Division Superintendents of
Schools, reiterating his claim that he had not reached the age of 65 and
enclosing some papers in support thereof.

SO ORDERED.

G.R. No. L-24989

including your Employee's Record Card, which has just been found in
connection with the verification of the services of all school officials
including elementary school principals in this division, you were born
on November 26, 1897. As of this date, therefore, you are now 66
years, 8 months, and 22 days old.

July 21, 1967

PEDRO
GRAVADOR, petitioner-appellee,
vs.
EUTIQUIO MAMIGO, THE DISTRICT SUPERVISOR OF BAYAWAN-STA.
CATALINA
SCHOOL
DISTRICT,
THE DIVISION SUPERINTENDENT OF SCHOOLS OF NEGROS ORIENTAL,
THE DIRECTOR OF PUBLIC SCHOOLS and THE SECRETARY OF
EDUCATION,
(all
sued
in
their
official
and
personal
capacities),respondents-appellants.
Office of the Solicitor Genero Arturo A. Alafriz, Assistant Solicitor General I. C.
Borromeo and Solicitor F. J. Bautista for respondents-appellants.
Newton E. Serion for petitioner-appellee.
CASTRO, J.:
The petitioner Pedro Gravador was the principal of the Sta. Catalina
Elementary School in Sta. Catalina, Negros Oriental on August 15, 1964 when
he was advised by the then, Superintendent of Schools Angel Salazar, Jr.,
through the respondent Supervisor Teodulfo E. Dayao, of his separation from
the service on the ground that he had reached the compulsory retirement
age of 65. The advice reads:
According to your pre-war records as a teacher in the public schools,

On April 13, 1965 he filed this suit for quo warranto, mandamus and damages
in the Court of First Instance of Negros Oriental. He asked the court to
adjudge him entitled to the office of principal of the Sta. Catalina Elementary
School and to order payment to him of not only his back salaries but also
damages in the total amount of P52,400. Named as respondents were
Eutiquio Mamigo, the District Supervisor, the Superintendent of Schools, the
Director of Public Schools and the Secretary of Education.
The respondents filed their answer, entered into a stipulation of facts with the
petitioner, and thereafter the case was submitted for decision. The trial court
concluded that the petitioner was born on December 11, 1901 accordingly
granted his petition. Immediate execution was ordered, as a result of which
the petitioner was reinstated.
The respondents appealed directly to this Court.
On July 6, 1967 the petitioner asked for the dismissal of the appeal on the
ground that the issues posed thereby had become moot with his retirement
from the service on December 11, 1966 and the payment to him of the
corresponding retirement benefits. We deem it necessary, however, to review
the trial court's decision on the merits, considering that the computation of
retirement annuities is based among other things, on the number of years of
service of a retiree,1 and that payment of benefits already made to the
petitioner on the basis of December 11, 1901 as the date of his birth would
not exempt him from the obligation to make a refund should this Court
ultimately rule that he was actually born November 26, 1897, as the
respondents claim.

The controversy on the petitioner's date of birth arose as a result of the

conflicting records of the Division of Schools of Negros Oriental. On the one
hand the pre-war records show his date of birth to be November 26, 1897.
These records consist of two Insular Teachers Cards2 and one Employee's
Record Card.3 It is on the basis of these records that the Superintendent of
Schools determined the petitioner's age to be 66 years, 8 months and 22
days on August 15, 1964.
On the other hand, the post-war records, consisting of an Elementary
Teacher's Report Card,4 an Employee's Record Card,5 and an Employee's
Record of Qualifications,6 state that the petitioner was born on Dec. 11,
1901. These are the records on which the petitioner bases his claim.
The problem is aggravated by two uncontroverted facts, namely, that the
records of the church where the petitioner was baptized were destroyed by
fire, and that the municipal civil register contains no record. of the
petitioner's birth.
According to the trial court, the post-war records were intended to replace
the pre-war records and therefore the correct date of birth of the petitioner is
December 11, 1901. The court also took into account the verified answer in a
cadastral proceeding in the Court of First Instance of Negros Oriental, dated
March 15, 1924, filed by the petitioner's brother, Romulo Gravador, now
deceased. It is therein stated that the petitioner, said to be one of the coowners of a piece of land, was at the time 23 years old.
The respondents now contend that the trial court erred in placing full reliance
on the post-war records to establish the date of birth (December 11, 1901) of
the petitioner. They argue that these records were made only because it was
thought that the pre-war records had been lost or destroyed, but as some
pre-war records had since been located, the date contained in the pre-war
records should be regarded as controlling and that the finding of the
Superintendent of Schools that the petitioner was born on November 26,
1897 is an administrative finding that should not be disturbed by the court.
That the findings of fact of administrative officials are binding on the courts if
supported by substantial evidence, is a settled rule of administrative law, But
whether there is substantial evidence supporting the finding of the
Superintendent of Schools is precisely the issue in this case. The school
official based his determination of the petitioner's age on the pre-war records
in the preparation of which the petitioner does not appear to have taken a
part.7 On the other hand, the petitioner post-war records which he personally
accomplished to prove the date of his birth.8
It is our considered view that the lower court correctly relied upon the postwar records, for three cogent reasons.
In the first place, as Moran states, although a person can have no personal
knowledge of the date of his birth, he may testify as to his age as he had
learned it from his parents and relatives and his testimony in such case is an
assertion of a family tradition.9 Indeed, even in is application for back pay
which he filed with the Department of Finance, through the Office of the
Superintendent of Schools, on October 7, 1948, the petitioner stated that the
date of his birth is December 11, 1901. He repeated the same assertion in
1956 and again in 1960 when he asked the Government Service Insurance
System and the Civil Service Commission to correct the date of his birth to
December 11, 1901.

In the second place, the import of the declaration of the petitioner's brother,
contained in a verified pleading in a cadastral case way back in 1924, to the
effect that the petitioner was then 23 years old, can not be ignored.
Madeante litem motam by a deceased relative, this statement is at once a
declaration regarding pedigree within the intendment and meaning of section
33 of Rule 130 of the Rules of Court.
Thus, December 11, 1901 is established as the date of birth of the petitioner
not only by evidence of family tradition but also by the declaration ante litem
motam of a deceased relative.1wph1.t
Finally, the patties are agreed that the petitioner has a brother, Constantino,
who was born on June 10, 1898 and who retired on June 10, 1963 with full
retirement pay. The petitioner then could not have been born earlier than
Constantino, say in 1897 as pre-war records indicate, because Constantino is
admittedly older than he.10
Still it is argued that the petitioner's action was prematurely brought because
he had not availed of all administrative remedies. This argument is without
merit. Suit for quo warranto to recover a public office must be brought within
one year.11 Before filing this case the petitioner waited for eight months for
the school officials to act on his protest. To require him to tarry a little more
would obviously be unfair to him since on April 13, 1965, when this case was
filed, he had only four months left within which to bring the case to court.
There was neither manner nor form of assurance that the decision of the
Director of Public Schools would be forthcoming. The rule on exhaustion of
administrative remedies does not apply where insistence on its observance
would result in the nullification of the claim being asserted.12
Accordingly, the judgment a quo is affirmed. No pronouncement as to costs.

[G.R. No. 121027. July 31, 1997]

CORAZON DEZOLLER TISON and RENE R. DEZOLLER, petitioners, vs.

COURT OF APPEALS and TEODORA DOMINGO, respondents.
DECISION
REGALADO, J.:
The present appeal by certiorari seeks the reversal of the judgment
rendered by respondent Court of Appeals on June 30, 1995[1] which affirmed
the Order of December 3, 1992 issued by the Regional Trial Court of Quezon
City, Branch 98, granting herein private respondents Demurrer to Plaintiffs

Evidence filed in Civil Case No. Q-88-1054 pending therein.

The present appellate review involves an action for reconveyance filed
by herein petitioners against herein private respondent before the Regional
Trial Court of Quezon City, Branch 98, docketed as the aforesaid Civil Case
No. Q-88-1054, over a parcel of land with a house and apartment thereon
located at San Francisco del Monte, Quezon City and which was originally
owned by the spouses Martin Guerrero and Teodora Dezoller Guerrero. It
appears that petitioners Corazon Tison and Rene Dezoller are the niece and
nephew, respectively, of the deceased Teodora Dezoller Guerrero who is the
sister of petitioners father, Hermogenes Dezoller. Teodora Dezoller Guerrero
died on March 5, 1983 without any ascendant or descendant, and was
survived
only
by
her
husband,
Martin
Guerrero,
and
herein
petitioners. Petitioners father, Hermogenes, died on October 3, 1973, hence
they seek to inherit from Teodora Dezoller Guerrero by right of
representation.
The records reveal that upon the death of Teodora Dezoller Guerrero, her
surviving spouse, Martin, executed on September 15, 1986 an Affidavit of
Extrajudicial Settlement[2]adjudicating unto himself, allegedly as sole heir,
the land in dispute which is covered by Transfer Certificate of Title No. 66886,
as a consequence of which Transfer Certificate of Title No. 358074 was issued
in the name of Martin Guerrero. On January 2, 1988, Martin Guerrero sold the
lot to herein private respondent Teodora Domingo and thereafter, Transfer
Certificate of Title No. 374012 was issued in the latters name.
Martin Guerrero died on October 25, 1988. Subsequently, herein
petitioners filed an action for reconveyance on November 2, 1988, claiming
that they are entitled to inherit one-half of the property in question by right of
representation.
At the pre-trial conference, the following issues were presented by both
parties for resolution:
(1) whether or not the plaintiffs (herein petitioners) are the nephew
and niece of the late Teodora Dezoller;
(2) whether or not the plaintiffs are entitled to inherit by right of
representation from the estate of the late Teodora Dezoller;
(3) whether or not defendant (herein private respondent) must
reconvey the reserved participation of the plaintiffs to the estate
of the late Teodora Dezoller under Section 4, Rule 74 of the Rules
of Court which was duly annotated on the title of the defendant;
(4) whether or not the plaintiffs are entitled to damages, moral and
exemplary, plus attorneys fees for the willful and malicious
refusal of defendant to reconvey the participation of plaintiffs in
the estate of Teodora Dezoller, despite demands and knowing
fully well that plaintiffs are the niece and nephew of said
deceased; and

(5) whether or not the subject property now in litigation can be

considered as conjugal property of the spouses Martin Guerrero
and Teodora Dezoller Guerrero.[3]
During the hearing, petitioner Corazon Dezoller Tison was presented as
the lone witness, with the following documentary evidence offered to prove
petitioners filiation to their father and their aunt, to wit: a family picture;
baptismal certificates of Teodora and Hermogenes Dezoller; certificates of
destroyed records of birth of Teodora Dezoller and Hermogenes Dezoller;
death certificates of Hermogenes Dezoller and Teodora Dezoller Guerrero;
certification of destroyed records of live birth of Corazon and Rene Dezoller;
joint affidavits of Pablo Verzosa and Meliton Sitjar attesting to the parents,
date and place of birth of Corazon and Rene Dezoller; joint affidavit of Juliana
Cariaga and Manuela Cariaga attesting to the fact of marriage between
Martin Guerrero and Teodora Dezoller; and the marriage certificate of Martin
and Teodora Guerrero.[4] Petitioners thereafter rested their case and
submitted a written offer of these exhibits to which a Comment[5] was filed
by herein private respondent.
Subsequently, private respondent filed a Demurrer to Plaintiffs Evidence
on the ground that petitioners failed to prove their legitimate filiation with the
deceased Teodora Guerrero in accordance with Article 172 of the Family
Code. It is further averred that the testimony of petitioner Corazon Dezoller
Tison regarding her relationship with her alleged father and aunt is selfserving, uncorroborated and incompetent, and that it falls short of the
quantum of proof required under Article 172 of the Family Code to establish
filiation. Also, the certification issued by the Office of the Local Civil Registrar
of Himamaylan, Negros Occidental is merely proof of the alleged destruction
of the records referred to therein, and the joint affidavit executed by Pablo
Verzosa and Meliton Sitjar certifying to the date, place of birth and parentage
of herein petitioners is inadmissible for being hearsay since the affiants were
never presented for cross-examination.[6]
On December 3, 1992, the trial court issued an order granting the
demurrer to evidence and dismissing the complaint for reconveyance .[7]
In upholding the dismissal, respondent Court of Appeals declared that
the documentary evidence presented by herein petitioners, such as the
baptismal certificates, family picture, and joint affidavits are all inadmissible
and insufficient to prove and establish filiation. Hence, this appeal.
We find for petitioners.
The bone of contention in private respondents demurrer to evidence is
whether or not herein petitioners failed to meet the quantum of proof
required by Article 172 of the Family Code to establish legitimacy and
filiation. There are two points for consideration before us: first is the issue on
petitioners legitimacy, and second is the question regarding their filiation
with Teodora Dezoller Guerrero.
I. It is not debatable that the documentary evidence adduced by
petitioners, taken separately and independently of each other, are not per

se sufficient proof of legitimacy nor even of pedigree. It is important to note,

however, that the rulings of both lower courts in the case are basically
premised on the erroneous assumption that, in the first place, the issue of
legitimacy may be validly controverted in an action for reconveyance, and, in
the second place, that herein petitioners have the onus probandi to prove
their legitimacy and, corollarily, their filiation.We disagree on both counts.
It seems that both the court a quo and respondent appellate court have
regrettably overlooked the universally recognized presumption on
legitimacy. There is no presumption of the law more firmly established and
founded on sounder morality and more convincing reason than the
presumption that children born in wedlock are legitimate.[8] And well settled
is the rule that the issue of legitimacy cannot be attacked collaterally.
The rationale for these rules has been explained in this wise:
The presumption of legitimacy in the Family Code x x x actually fixes a civil
status for the child born in wedlock, and that civil status cannot be attacked
collaterally. The legitimacy of the child can be impugned only in a direct
action brought for that purpose, by the proper parties, and within the period
limited by law.
The legitimacy of the child cannot be contested by way of defense or as a
collateral issue in another action for a different purpose. The necessity of an
independent action directly impugning the legitimacy is more clearly
expressed in the Mexican Code (Article 335) which provides: The contest of
the legitimacy of a child by the husband or his heirs must be made by proper
complaint before the competent court; any contest made in any other way is
void. This principle applies under our Family Code. Articles 170 and 171 of
the code confirm this view, because they refer to the action to impugn the
legitimacy. This action can be brought only by the husband or his heirs and
within the periods fixed in the present articles.
Upon the expiration of the periods provided in Article 170, the action to
impugn the legitimacy of a child can no longer be brought. The status
conferred by the presumption, therefore, becomes fixed, and can no longer
be questioned. The obvious intention of the law is to prevent the status of a
child born in wedlock from being in a state of uncertainty for a long time. It
also aims to force early action to settle any doubt as to the paternity of such
child, so that the evidence material to the matter, which must necessarily be
facts occurring during the period of the conception of the child, may still be
easily available.
xxx
Only the husband can contest the legitimacy of a child born to his
wife. He is the one directly confronted with the scandal and ridicule which the
infidelity of his wife produces; and he should decide whether to conceal that
infidelity or expose it, in view of the moral and economic interest involved. It
is only in exceptional cases that his heirs are allowed to contest such
legitimacy. Outside of these cases, none - even his heirs - can impugn
legitimacy; that would amount to an insult to his memory.[9]
The issue, therefore, as to whether petitioners are the legitimate

children of Hermogenes Dezoller cannot be properly controverted in the

present action for reconveyance. This is aside, of course, from the further
consideration that private respondent is not the proper party to impugn the
legitimacy of herein petitioners. The presumption consequently continues to
operate in favor of petitioners unless and until it is rebutted.
Even assuming that the issue is allowed to be resolved in this case, the
burden of proof rests not on herein petitioners who have the benefit of the
presumption in their favor, but on private respondent who is disputing the
same. This fact alone should have been sufficient cause for the trial court to
exercise appropriate caution before acting, as it did, on the demurrer to
evidence. It would have delimited the issues for resolution, as well as the
time and effort necessitated thereby.
Ordinarily, when a fact is presumed, it implies that the party in whose
favor the presumption exists does not have to introduce evidence to establish
that fact, and in any litigation where that fact is put in issue, the party
denying it must bear the burden of proof to overthrow the presumption.
[10] The presumption of legitimacy is so strong that it is clear that its effect is
to shift the burden of persuasion to the party claiming illegitimacy.[11] And in
order to destroy the presumption, the party against whom it operates must
adduce substantial and credible evidence to the contrary.[12]
Where there is an entire lack of competent evidence to the contrary,
[13] and unless or until it is rebutted, it has been held that a presumption
may stand in lieu of evidence and support a finding or decision. [14] Perforce,
a presumption must be followed if it is uncontroverted. This is based on the
theory that a presumption is prima facie proof of the fact presumed, and
unless the fact thus established prima facie by the legal presumption of its
truth is disproved, it must stand as proved. [15]
Indubitably, when private respondent opted not to present
countervailing evidence to overcome the presumption, by merely filing a
demurrer to evidence instead, she in effect impliedly admitted the truth of
such fact. Indeed, she overlooked or disregarded the evidential rule that
presumptions like judicial notice and admissions, relieve the proponent from
presenting evidence on the facts he alleged and such facts are thereby
considered as duly proved.
II. The weight and sufficiency of the evidence regarding petitioners
relationship with Teodora Dezoller Guerrero, whose estate is the subject of
the present controversy, requires a more intensive and extensive
examination.
Petitioners evidence, as earlier explained, consists mainly of the
testimony of Corazon Dezoller Tison, the baptismal, death and marriage
certificates, the various certifications from the civil registrar, a family picture,
and several joint affidavits executed by third persons all of which she
identified and explained in the course and as part of her testimony.
The primary proof to be considered in ascertaining the relationship
between the parties concerned is the testimony of Corazon Dezoller Tison to

the effect that Teodora Dezoller Guerrero in her lifetime, or sometime in

1946, categorically declared that the former is Teodoras niece.[16] Such a
statement is considered a declaration about pedigree which is admissible, as
an exception to the hearsay rule, under Section 39, Rule 130 of the Rules of
Court, subject to the following conditions: (1) that the declarant is dead or
unable to testify; (2) that the declarant be related to the person whose
pedigree is the subject of inquiry; (3) that such relationship be shown by
evidence other than the declaration; and (4) that the declaration was
made ante litem motam, that is, not only before the commencement of the
suit involving the subject matter of the declaration, but before any
controversy has arisen thereon.
There is no dispute with respect to the first, second and fourth
elements. What remains for analysis is the third element, that is, whether or
not the other documents offered in evidence sufficiently corroborate the
declaration made by Teodora Dezoller Guerrero in her lifetime regarding the
pedigree of petitioner Corazon Dezoller Tison or, if at all, it is necessary to
present evidence other than such declaration.
American jurisprudence has it that a distinction must be made as to
when the relationship of the declarant may be proved by the very declaration
itself, or by other declarations of said declarant, and when it must be
supported by evidence aliunde. The rule is stated thus:
One situation to be noted is that where one seeks to set up a claim through,
but not from, the declarant and to establish the admissibility of a declaration
regarding claimants pedigree, he may not do so by declarants own
statements as to declarants relationship to the particular family.The reason is
that declarants declaration of his own relationship is of a self-serving
nature. Accordingly there must be precedent proof from other sources that
declarant is what he claimed to be, namely, a member of the particular
family; otherwise the requirement to admissibility that declarants relationship
to the common family must appear is not met. But when the party claiming
seeks to establish relationship in order to claim directly from the declarant or
the declarants estate, the situation and the policy of the law applicable are
quite different. In such case the declaration of the decedent, whose estate is
in controversy, that he was related to the one who claims his estate, is
admissible without other proof of the fact of relationship. While the nature of
the declaration is then disserving, that is not the real ground for its
admission. Such declarations do not derive their evidential value from that
consideration, although it is a useful, if not an artificial, aid in determining the
class to which the declarations belong. The distinction we have noted is
sufficiently apparent; in the one case the declarations are self-serving, in the
other they are competent from reasons of necessity.[17] (Italics ours.)
The general rule, therefore, is that where the party claiming seeks
recovery against a relative common to both claimant and declarant, but not
from the declarant himself or the declarants estate, the relationship of the
declarant to the common relative may not be proved by the declaration
itself. There must be some independent proof of this fact.[18] As an
exception, the requirement that there be other proof than the declarations of
the declarant as to the relationship, does not apply where it is sought to
reach the estate of the declarant himself and not merely to establish a right
through his declarations to the property of some other member of the

family. [19]
We are sufficiently convinced, and so hold, that the present case is one
instance where the general requirement on evidence aliunde may be
relaxed. Petitioners are claiming a right to part of the estate of the declarant
herself. Conformably, the declaration made by Teodora Dezoller Guerrero that
petitioner Corazon is her niece, is admissible and constitutes sufficient proof
of such relationship, notwithstanding the fact that there was no other
preliminary evidence thereof, the reason being that such declaration is
rendered competent by virtue of the necessity of receiving such evidence to
avoid a failure of justice.[20] More importantly, there is in the present case an
absolute failure by all and sundry to refute that declaration made by the
decedent.
From the foregoing disquisitions, it may thus be safely concluded, on the
sole basis of the decedents declaration and without need for further proof
thereof, that petitioners are the niece and nephew of Teodora Dezoller
Guerrero. As held in one case,[21] where the subject of the declaration is the
declarants own relationship to another person, it seems absurd to require, as
a foundation for the admission of the declaration, proof of the very fact which
the declaration is offered to establish. The preliminary proof would render the
main evidence unnecessary.
Applying the general rule in the present case would nonetheless produce
the same result. For while the documentary evidence submitted by
petitioners do not strictly conform to the rules on their admissibility, we are
however of the considered opinion that the same may be admitted by reason
of private respondents failure to interpose any timely objection thereto at the
time they were being offered in evidence.[22] It is elementary that an
objection shall be made at the time when an alleged inadmissible document
is offered in evidence,[23] otherwise, the objection shall be treated as
waived,[24] since the right to object is merely a privilege which the party
may waive.[25]
As explained in Abrenica vs. Gonda, et al.,[26] it has been repeatedly
laid down as a rule of evidence that a protest or objection against the
admission of any evidence must be made at the proper time, otherwise it will
be deemed to have been waived. The proper time is when from the question
addressed to the witness, or from the answer thereto, or from the
presentation of the proof, the inadmissibility of the evidence is, or may be
inferred.
Thus, a failure to except to the evidence because it does not conform
with the statute is a waiver of the provisions of the law. That objection to a
question put to a witness must be made at the time the question is asked. An
objection to the admission of evidence on the ground of incompetency, taken
after the testimony has been given, is too late.[27] Thus, for instance, failure
to object to parol evidence given on the stand, where the party is in a
position to object, is a waiver of any objections thereto.[28]
The situation is aggravated by the fact that counsel for private
respondent unreservedly cross-examined petitioners, as the lone witness, on

the documentary evidence that were offered. At no time was the issue of the
supposed inadmissibility thereof, or the possible basis for objection thereto,
ever raised. Instead, private respondents counsel elicited answers from the
witness on the circumstances and regularity of her obtention of said
documents: The observations later made by private respondent in her
comment to petitioners offer of exhibits, although the grounds therefor were
already apparent at the time these documents were being adduced in
evidence during the testimony of Corazon Dezoller Tison but which objections
were not timely raised therein, may no longer serve to rectify the legal
consequences which resulted therefrom. Hence, even assuming ex gratia
argumenti that these documents are inadmissible for being hearsay, but on
account of herein private respondents failure to object thereto, the same may
be admitted and considered as sufficient to prove the facts therein asserted.
[29]

right. Hence, Martin Guerrero could only validly alienate his total undivided
three-fourths (3/4) share in the entire property to herein private
respondent. Resultantly, petitioners and private respondent are deemed coowners of the property covered by Transfer Certificate of Title No. 374012 in
the proportion of an undivided one-fourth (1/4) and three-fourths (3/4) share
thereof, respectively.

Accordingly, the Certificate of Marriage (Exhibit S) wherein it is indicated

that the parents of Teodora Dezoller are Isabelo Dezoller and Cecilia Calpo, as
well as the Certificates of Baptism of Teodora Dezoller[30] (Exhibit H) and
Hermogenes Dezoller (Exhibit J) which both reflect the names of their parents
as Isabelo Dezoller and Cecilia Calpo, to show that Hermogenes Dezoller is
the brother of Teodora Dezoller Guerrero; and the Death Certificate of
Hermogenes Dezoller (Exhibit K) the entries wherein were made by petitioner
Corazon Dezoller Tison as his daughter, together with the Joint Affidavits of
Pablo Verzosa and Meliton Sitjar (Exhibits N and P), to prove that herein
petitioners are the children of Hermogenes Dezoller -- these can be deemed
to have sufficiently established the relationship between the declarant and
herein petitioners. This is in consonance with the rule that a prima
facie showing is sufficient and that only slight proof of the relationship is
required.[31] Finally, it may not be amiss to consider as in the nature of
circumstantial evidence the fact that both the declarant and the claimants,
who are the subject of the declaration, bear the surname Dezoller.[32]

WHEREFORE, the questioned judgment of respondent Court of Appeals

is hereby REVERSED and SET ASIDE, and herein petitioners and private
respondent are declared co-owners of the subject property with an undivided
one-fourth (1/4) and three-fourths (3/4) share therein, respectively.

III. The following provisions of the Civil Code provide for the manner by
which the estate of the decedent shall be divided in this case, to wit:
Art. 975. When children of one or more brothers or sisters of the deceased
survive, they shall inherit from the latter by representation, if they survive
with their uncles or aunts. But if they alone survive, they shall inherit in equal
portions.
Art. 995. In the absence of legitimate descendants and ascendants, and
illegitimate children and their descendants, whether legitimate or
illegitimate, the surviving spouse shall inherit the entire estate, without
prejudice to the rights of brothers and sisters, nephews and nieces, should
there be any, under Article 1001.
Art. 1001. Should brothers and sisters or their children survive with the widow
or widower, the latter shall be entitled to one-half of the inheritance and the
brothers and sisters or their children to the other half.
Upon the death of Teodora Dezoller Guerrero, one-half of the subject
property was automatically reserved to the surviving spouse, Martin
Guerrero, as his share in the conjugal partnership. Applying the aforequoted
statutory provisions, the remaining half shall be equally divided between the
widower and herein petitioners who are entitled to jointly inherit in their own

All told, on the basis of the foregoing considerations, the demurrer to

plaintiffs evidence should have been, as it is hereby, denied. Nonetheless,
private respondent may no longer be allowed to present evidence by reason
of the mandate under Section 1 of revised Rule 3 of the Rules of Court which
provides that if the motion is granted but on appeal the order of dismissal is
reversed he shall be deemed to have waived the right to present evidence.
[33]

SO ORDERED.

G.R. No. 86302 September 24, 1991

CASIMIRO
vs.
HON.
COURT
OF
TUACAO, respondents.

MENDOZA, petitioner,
APPEALS

and

TEOPISTA

TORING

Bienvenido R. Saniel, Jr. for petitioner.

Domingo Antigua & Associates for private respondent.

CRUZ, J.:p
The private respondent claimed she was the illegitimate daughter of Casimiro
Mendoza, but the latter denied her claim. He denied it to his dying day. The
trial court believed him and dismissed her complaint for compulsory
recognition. The appellate court did not and reversed the judgment of the
court below. Now the issue is before us on certiorari.
The complaint was filed on August 21, 1981, in the Regional Trial Court in
Cebu City. Teopista Toring Tufiacao, the herein private respondent, alleged
that she was born on August 20, 1930, to Brigida Toring, who was then single,
and defendant Casimiro Mendoza, married at that time to Emiliana
Barrientos. She averred that Mendoza recognized her as an illegitimate child
by treating her as such and according her the rights and privileges of a
recognized illegitimate child.
Casimiro Mendoza, then already 91 years old, specifically denied the plaintiffs
allegations and set up a counterclaim for damages and attorney's fees.

Amplifying on her complaint, Teopista testified that it was her mother who
told her that her father was Casimiro. She called him Papa Miroy. She lived
with her mother because Casimiro was married but she used to visit him at
his house. When she married Valentin Tufiacao, Casimiro bought a passenger
truck and engaged him to drive it so he could have a livelihood. Casimiro
later sold the truck but gave the proceeds of the sale to her and her husband.
In 1977, Casimiro allowed her son, Lolito Tufiacao, to build a house on his lot
and later he gave her money to buy her own lot from her brother, Vicente
Toring. On February 14, 1977, Casimiro opened a joint savings account with
her as a co-depositor at the Mandaue City branch of the Philippine
Commercial and Industrial Bank. Two years later, Margarita Bate, Casimiro's
adopted daughter, took the passbook from her, but Casimiro ordered it
returned to her after admonishing Margarita. 1
Lolito Tufiacao corroborated his mother and said he considered Casimiro his
grandfather because Teopista said so. He would kiss his hand whenever they
saw each other and Casimiro would give him money. Casimiro used to invite
him to his house and give him jackfruits. when his grandfather learned that
he was living on a rented lot, the old man allowed him to build a house on the
former's land. 2
Two other witnesses testified for Teopista, namely, Gaudencio Mendoza and
Isaac Mendoza, both relatives of Casimiro.
Gaudencio said he was a cousin of Casimiro and knew Brigida Toring because
she used to work with him in a saltbed in Opao. Casimiro himself told him she
was his sweetheart. Later, Gaudencio acted as a go-between for their liaison,
which eventually resulted in Brigida becoming pregnant in 1930 and giving
birth to Teopista. Casimiro handed him P20.00 to be given to Brigida at
Teopista's baptism. Casimiro also gave him P5.00 every so often to be
delivered to Brigida. 3

Art. 283. In any of the following cases, the father is obliged to

recognize the child as his natural child:
(1) In cases of rape, abduction or seduction, when the period
of the offense coincides more or less with that of the
conception;
(2) When the child is in continuous possession of status of a
child of the alleged father by the direct acts of the latter or of
his family;
(3) when the child was conceived during the time when the
mother cohabited with the supposed father.
(4) When the child has in his favor any evidence or proof that
the defendant is his father.
This article has been substantially reproduced in the Family Code as follows:
Art. 172. The filiation of legitimate children is established by
any of the following:
(1) The record of birth appearing in the civil register or a final
judgment; or
(2) An admission of legitimate filiation in a public document or
a private handwritten instrument and signed by the parent
concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be
proved by:
(1) The open and continuous possession of the status of a
legitimate child; or

Isaac testified that his uncle Casimiro was the father of Teopista because his
father Hipolito, Casimiro's brother, and his grandmother, Brigida Mendoza, so
informed him. He worked on Casimiro's boat and whenever Casimiro paid him
his salary, he would also give him various amounts from P2.00 to P10.00 to
be delivered to Teopista. Isaac also declared that Casimiro intended to give
certain properties to Teopista. 4

(2) Any other means allowed by the Rules of Court and special
laws.

Casimiro himself did not testify because of his advanced age, but Vicente
Toring took the stand to resist Teopista's claim.

In his remarkably well-written decision, Judge Leoncio P. Abarquez rejected

the plaintiff' s claim that she was in continuous possession of the status of a
child of the alleged father by the direct acts of the latter or of his family. His
Honor declared:

Vicente, who professed to be Casimiro's only illegitimate child by Brigida

Toring, declared that Teopista's father was not Casimiro but a carpenter
named Ondoy, who later abandoned her. Vicente said that it was he who sold
a lot to Teopista, and for a low price because she was his half sister. It was
also he who permitted Lolito to build a house on Casimiro's lot. This witness
stressed that when Casimiro was hospitalized, Teopista never once visited her
alleged father. 5
The last statement was shared by the other defense witness, Julieta Ouano,
Casimiro's niece, who also affirmed that Vicente Toring used to work as a
cook in Casimiro's boat. She flatly declared she had never met Teopista but
she knew her husband, who was a mechanic. 6
The rules on compulsory recognition are embodied in Article 283 of the Civil
Code, which has been held to be applicable not only to natural children but
also to spurious children. 7 The said article provides:

Art. 175. Illegitimate children may establish their illegitimate

filiation in the same way and on the same evidence as
legitimate children.

In this particular case the established evidence is that plaintiff

continuously lived with her mother, together with her sister
Paulina. Neither the plaintiff nor her husband had come to live
with the defendant. At most, only their son, Lolito Tufiacao
was allowed to construct a small house in the land of the
defendant, either by the defendant himself, as claimed by the
plaintiff, or by Vicente Toring, as claimed by the witnesses of
the defendant. The defendant never spent for the support and
education of the plaintiff. He did not allow the plaintiff to carry
his surname. The instances when the defendant gave money
to the plaintiff were, more or less, off-and-on or rather
isolatedly periodic. They were made at considerable intervals
and were not given directly to the plaintiff but through a third

person. Thus, while it may be conceded that: a) the

defendant's parents, as well as the plaintiff himself told
Gaudencio Mendoza and Isaac Mendoza that Teopista is the
daughter of the defendant; b) that Teopista calls the
defendant as "Papa Miroy"; c) that Teopista would kiss
defendant's hand when she met him; d) that the defendant
gave to her and her husband the income of the passenger
truck as well as the proceeds of the sale thereof, all these
acts, taken altogether, are not sufficient to show that the
plaintiff had possessed continuously the status of a
recognized illegitimate child.
On appeal, however, the respondent courts 8 disagreed and arrived at its
own conclusion as follows:
Contrary to the conclusion of the court a quo, We find that
appellant has sufficiently proven her continuous possession of
such status. Although the court a quo did not pass on the
credibility of the various witnesses presented, We consider
the witnesses for the plaintiff as credible and unbiased. No
proof was shown to render them otherwise. There is no
showing that Isaac and Gaudencio testified falsely. They were
disinterested parties with no axe to grind against the appellee
or the people actively acting in his behalf. In fact even the
court a quo conceded to the truthfulness of some of their
testimonies.
By contrast, it continued, Vicente Toring was an interested party who was
claiming to be the sole recognized natural child of Casimiro and stood to lose
much inheritance if Teopista's claim were recognized. He had earlier filed
theft charges against his own sister and libel charges against her husband. As
for Julieta Ouano, the respondent court found it difficult to believe that she
had never met Teopista although both of them have been living in the same
barangay since birth.
The decision of the Court of Appeals was promulgated on August 11, 1988. A
motion for reconsideration was filed, and it was only from the opposition
thereto of the private respondent that Casimiro's counsel learned that his
client had died on May 1986. He immediately informed the respondent court
build the motion for reconsideration was denied without any substitution of
parties having been effected. The said counsel, now acting for Vicente Toring,
then asked this Court to substitute the latter for the deceased Casimiro
Mendoza in the present petition.
The applicable provisions of the Rules of Court are Sections 16 and 17 of Rule
3, reading as follows:
Sec. 16. Duty of attorney upon death, incapacity or
incompetency of party. Whenever a party to a pending
case dies, becomes incapacitated or incompetent, it shall be
the duty of his attorney to inform the court promptly of such
death, incapacity or incompetency, and to give the name and
residence of his executor, guardian or other legal
representative.
Sec. 17. Death of party. After a party dies and the claim is
not thereby extinguished, the court shall order, upon proper

notice, the legal representative of the deceased to appear

and to be substituted for the deceased, within a period of
thirty (30) days, or within such time as may be granted. If the
legal representative fails to appear within said time the court
may order the opposing party to procure the appointment of a
legal representative of the deceased within a time to be
specified by the court, and the representative shall
immediately appear for and on behalf of the interest of the
deceased. The court charges involved in procuring such
appointment, if defrayed by the opposing party, may be
recovered as costs. The heirs of the deceased may be allowed
to be substituted for the deceased, without requiring the
appointment of an executor or administrator and the court
may appoint guardian ad litem for the minor heirs.
In the early case of Masecampo vs. Masecampo, 9 it was settled that:
The subsequent death of the father is not a bar to the action
commenced during Ms lifetime by one who pretended to be
his natural son. It may survive against the executor,
administrator, or any other legal representative of the testate
or intestate succession.
Pursuant to the above rules and jurisprudence, we hereby allow the
substitution of Casimiro Mendoza pro haec vice and nunc pro tunc by Vicente
Toring, who appears to be the former's illegitimate son. This disposes of the
private respondent's contention that the lawyer-client relationship terminated
with Casimiro's death and that Vicente has no personality now to substitute
him.
Now to the merits.
We note that both the trial court and the respondent court, in arriving at their
respective conclusions, focused on the question of whether or not Teopista
was in continuous possession of her claimed status of an illegitimate child of
Casimiro Mendoza. This was understandable because Teopista herself had
apparently based her claim on this particular ground as proof of filiation
allowed under Article 283 of the Civil Code.
To establish "the open and continuous possession of the status of an
illegitimate child," it is necessary to comply with certain jurisprudential
requirements. "Continuous" does not mean that the concession of status shall
continue forever but only that it shall not be of an intermittent character
while it continues. 10 The possession of such status means that the father
has treated the child as his own, directly and not through others,
spontaneously and without concealment though without publicity (since the
relation is illegitimate). 11 There must be a showing of the permanent
intention of the supposed father to consider the child as his own, by
continuous and clear manifestation of paternal affection and care. 12
With these guidelines in mind, we agree with the trial court that Teopista has
not been in continuous possession of the status of a recognized illegitimate
child of Casimiro Mendoza, under both Article 283 of the Civil Code and
Article 172 of the Family Code.
The plaintiff lived with her mother and not with the defendant although they
were both residents of Omapad, Mandaue City. It is true, as the respondent
court observed, that this could have been because defendant had a

legitimate wife. However, it is not unusual for a father to take his illegitimate
child into his house to live with him and his legitimate wife, especially if the
couple is childless, as in this case. In fact, Vicente Toring, who also claimed to
be an illegitimate child of Casimiro, lived with the latter and his wife,
apparently without objection from the latter. We also note that Teopista did
not use the surname of Casimiro although this is, of course, not decisive of
one's status. No less significantly, the regularity of defendant's act of giving
money to the plaintiff through Gaudencio Mendoza and Isaac Mendoza has
not been sufficiently established. The trial court correctly concluded that such
instances were "off-and-on," not continuous and intermittent. Indeed, the
plaintiff s testimony on this point is tenuous as in one breath she said that
her mother solely spent for her education and in another that Casimiro
helped in supporting her. 13
But although Teopista has failed to show that she was in open and continuous
possession of the status of an illegitimate child of Casimiro, we find that she
has nevertheless established that status by another method.
What both the trial court and the respondent court did not take into account
is that an illegitimate child is allowed to establish his claimed filiation by "any
other means allowed by the Rules of Court and special laws," according to the
Civil Code, or "by evidence or proof in his favor that the defendant is her
father," according to the Family Code. Such evidence may consist of his
baptismal certificate, a judicial admission, a family Bible in which his name
has been entered, common reputation respecting his pedigree, admission by
silence, the testimonies of witnesses, and other kinds of proof admissible
under Rule 130 of the Rules of Court. 14
The trial court conceded that "the defendant's parents, as well as the plaintiff
himself, told Gaudencio Mendoza and Isaac Mendoza, that Teopista was the
daughter of the defendant." It should have probed this matter further in light
of Rule 130, Section 39, of the Rules of Court, providing as follows:
Sec. 39. Act or declarations about pedigree. The act or
declaration of a person deceased, or unable to testify, in
respect to the pedigree of another person related to him by
birth or marriage, may be received in evidence where it
occurred before the controversy, and the relationship
between the two persons is shown by evidence other than
such act or declaration. The word "pedigree" includes
relationship, family genealogy, birth, marriage, death, the
dates when and the places where these facts occurred, and
the names of the relatives. It embraces also facts of family
history intimately connected with pedigree.
The statement of the trial court regarding Teopista's parentage is not entirely
accurate. To set the record straight, we will stress that it was only Isaac
Mendoza who testified on this question of pedigree, and he did not cite
Casimiro's father. His testimony was that he was informed by his father
Hipolito, who was Casimiro's brother, and Brigida Mendoza, Casimiro's own
mother, that Teopista was Casimiro's illegitimate daughter. 15
Such acts or declarations may be received in evidence as an exception to the
hearsay rule because "it is the best the nature of the case admits and
because greater evils are apprehended from the rejection of such proof than
from its admission. 16 Nevertheless, precisely because of its nature as
hearsay evidence, there are certain safeguards against its abuse.

Commenting on this provision, Francisco enumerates the following requisites

that have to be complied with before the act or declaration regarding
pedigree may be admitted in evidence:
1. The declarant is dead or unable to testify.
2. The pedigree must be in issue.
3. The declarant must be a relative of the person whose
pedigree is in issue.
4. The declaration must be made before the controversy
arose.
5. The relationship between the declarant and the person
whose pedigree is in question must be shown by evidence
other than such declaration. 17
All the above requisites are present in the case at bar. The persons who made
the declarations about the pedigree of Teopista, namely, the mother of
Casimiro, Brigida Mendoza, and his brother, Hipolito, were both dead at the
time of Isaac's testimony. The declarations referred to the filiation of Teopista
and the paternity of Casimiro, which were the very issues involved in the
complaint for compulsory recognition. The declarations were made before the
complaint was filed by Teopista or before the controversy arose between her
and Casimiro. Finally, the relationship between the declarants and Casimiro
has been established by evidence other than such declaration, consisting of
the extrajudicial partition of the estate of Florencio Mendoza, in which
Casimiro was mentioned as one of his heirs. 18
The said declarations have not been refuted. Casimiro could have done this
by deposition if he was too old and weak to testify at the trial of the case.
If we consider the other circumstances narrated under oath by the private
respondent and her witnesses, such as the financial doles made by Casimiro
to Brigida Toring, the hiring of Teopista's husband to drive the passenger
truck of Casimiro, who later sold the vehicle and gave the proceeds of the
sale to Teopista and her husband, the permission he gave Lolito Tufiacao to
build a house on his land after he found that the latter was living on a rented
lot, and, no less remarkably, the joint savings account Casimiro opened with
Teopista, we can reasonably conclude that Teopista was the illegitimate
daughter of Casimiro Mendoza.
We hold that by virtue of the above-discussed declarations, and in view of the
other circumstances of this case, 'reopista Toring Tufiacao has proved that
she is the illegitimate daughter of Casimiro Mendoza and is entitled to be
recognized as such. In so holding, we give effect to the policy of the Civil
Code and the Family Code to liberalize the rule on the investigation of "the
paternity of illegitimate children, without prejudice to the right of the alleged
parent to resist the claimed status with his own defenses, including evidence
now obtainable through the facilities of modern medicine and technology
WHEREFORE, the petition is DENIED. Judgment is hereby rendered
DECLARING Teopista Toring Tuacao to be the illegitimate child of the late
Casimiro Mendoza and entitled to all the rights appurtenant to such status.
Costs against the petitioner.
SO ORDERED.

petition.

[G.R. No. 146737. December 10, 2001]

In the matter of the intestate estate of the late JUAN "JHONNY"

LOCSIN, SR., LUCY A. SOLINAP (Daughter of the late Maria
Locsin Araneta), the successors of the late LOURDES C.
LOCSIN, MANUEL C. LOCSIN, ESTER LOCSIN JARANTILLA and
the intestate estate of the late JOSE C. LOCSIN,
JR., petitioners, vs. JUAN C. LOCSIN, JR., respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
A Certificate of Live Birth duly recorded in the Local Civil Registry, a copy
of which is transmitted to the Civil Registry General pursuant to the Civil
Registry Law, is prima facie evidence of the facts therein stated. However, if
there are material discrepancies between them, the one entered in the Civil
Registry General prevails.
This is a petition for review on certiorari under Rule 45 of the 1997 Rules
of Civil Procedure, as amended, seeking the reversal of the September 13,
2000 Decision of the Court of Appeals in CA-G.R. CV No. 57708 which
affirmed in toto the September 13, 1996 order of the Regional Trial Court,
Branch 30, of Iloilo City in Special Proceeding No. 4742. The September 13
order of the trial court appointed Juan E. Locsin, Jr., respondent, as the sole
administrator of the Intestate Estate of the late Juan "Jhonny" Locsin, Sr.
Records show that on November 11, 1991, or eleven (11) months after
Juan "Jhonny" Locsin, Sr.[1] died intestate on December 11, 1990, respondent
Juan E. Locsin, Jr. filed with the Regional Trial Court of Iloilo City, Branch 30, a
"Petition for Letters of Administration" (docketed as Special Proceeding No.
4742) praying that he be appointed Administrator of the Intestate Estate of
the deceased. He alleged, among others, (a) that he is an acknowledged
natural child of the late Juan C. Locsin; (b) that during his lifetime, the
deceased owned personal properties which include undetermined savings,
current and time deposits with various banks, and 1/6 portion of the
undivided mass of real properties owned by him and his siblings, namely: Jose
Locsin, Jr., Manuel Locsin, Maria Locsin Yulo, Lourdes Locsin and Ester Locsin;
and (c) that he is the only surviving legal heir of the decedent.
On November 13, 1991, the trial court issued an order setting the
petition for hearing on January 13, 1992, which order was duly published,
[2] thereby giving notice to all persons who may have opposition to the said

Before the scheduled hearing, or on January 10, 1992, the heirs of Jose
Locsin, Jr., the heirs of Maria Locsin, Manuel Locsin and Ester Jarantilla,
claiming to be the lawful heirs of the deceased, filed an opposition to
respondents petition for letters of administration. They averred that
respondent is not a child or an acknowledged natural child of the late Juan C.
Locsin, who during his lifetime, never affixed "Sr." in his name .
On January 5, 1993, another opposition to the petition was filed by Lucy
Salinop (sole heir of the late Maria Locsin Vda. De Araneta, sister of the
deceased), Manuel Locsin and the successors of the late Lourdes C. Locsin
alleging that respondent's claim as a natural child is barred by prescription or
the statute of limitations.
The Intestate Estate of the late Jose Locsin, Jr. (brother of the deceased)
also entered its appearance in the estate proceedings, joining the earlier
oppositors. This was followed by an appearance and opposition dated January
26, 1993 of Ester Locsin Jarantilla (another sister of Juan C. Locsin), likewise
stating that there is no filial relationship between herein respondent and the
deceased.
Thereupon, the trial court conducted hearings.
To support his claim that he is an acknowledged natural child of the
deceased and, therefore, entitled to be appointed administrator of the
intestate estate, respondent submitted a machine copy (marked as Exhibit
"D")[3] of his Certificate of Live Birth No. 477 found in the bound volume of
birth records in the Office of the Local Civil Registrar of Iloilo City. Exhibit "D"
contains the information that respondent's father is Juan C. Locsin, Sr. and
that he was the informant of the facts stated therein, as evidenced by his
signatures (Exhibit "D-2" and "D-3"). To prove the existence and authenticity
of Certificate of Live Birth No. 477 from which Exhibit "D" was machine
copied, respondent presented Rosita J. Vencer, the Local Civil Registrar of
Iloilo City. She produced and identified in court the bound volume of 1957
records of birth where the alleged original of Certificate of Live Birth No. 477
is included.
Respondent also offered in evidence a photograph (Exhibit "C")
[4] showing him and his mother, Amparo Escamilla, in front of a coffin
bearing Juan C. Locsin's dead body. The photograph, respondent claims,
shows that he and his mother have been recognized as family members of
the deceased.
In their oppositions, petitioners claimed that Certificate of Live Birth No.
477 (Exhibit "D") is spurious. They submitted a certified true copy of
Certificate of Live Birth No. 477 found in the Civil Registrar General, Metro
Manila, marked as Exhibit "8",[5] indicating that the birth of respondent was
reported by his mother, Amparo Escamilla, and that the same does not
contain the signature of the late Juan C. Locsin. They observed as anomalous
the fact that while respondent was born on October 22, 1956 and his birth
was recorded on January 30, 1957, however, his Certificate of Live Birth No.

447 (Exhibit "D") was recorded on a December 1, 1958 revised

form. Upon the other hand, Exhibit "8" appears on a July, 1956 form, already
used before respondent's birth. This scenario clearly suggests that Exhibit "D"
was falsified. Petitioners presented as witness, Col. Pedro L. Elvas, a
handwriting expert. He testified that the signatures of Juan C. Locsin and
Emilio G. Tomesa (then Civil Registrar of Iloilo City) appearing in Certificate of
Live Birth No. 477 (Exhibit "D") are forgeries. He thus concluded that the said
Certificate is a spurious document surreptitiously inserted into the bound
volume of birth records of the Local Civil Registrar of Iloilo City.

both, in the discretion of the court, or to such person as such surviving

husband or wife, or next of kin, requests to have appointed, if competent and
willing to serve;

After hearing, th trial court, finding that Certificate of Live Birth No. 477
(Exhibit "D") and the photograph (Exhibit "C") are sufficient proofs of
respondent's illegitimate filiation with the deceased, issued on September 13,
1996 an order, the dispositive portion of which reads:

(c) If there is no such creditor competent and willing to serve, it may be

granted to such other person as the court may select. (Emphasis ours)

WHEREFORE, premises considered, this PETITION is hereby GRANTED and the

petitioner Juan E. Locsin, Jr. is hereby appointed Administrator of the Intestate
Estate of the late Juan Johnny Locsin, Sr.
"Let Letters of Administration be issued in his favor, upon his filing of a bond
in the sum of FIFTY THOUSAND PESOS (P50,000.00) to be approved by this
Court.
"SO ORDERED.[6]
On appeal, the Court of Appeals rendered the challenged Decision
affirming in toto the order of the trial court dated September 13,
1996. Petitioners moved for a reconsideration, while respondent filed a
motion for execution pending appeal. Both motions were, however, denied by
the Appellate Court in its Resolution dated January 10, 2001.
Hence, the instant petition for review on certiorari by petitioners.
The focal issue for our resolution is which of the two documents Certificate of Live Birth No. 477 (Exhibit "D") and Certificate of Live Birth No.
477 (Exhibit "8") is genuine.
The rule that factual findings of the trial court, adopted and confirmed
by the Court of Appeals, are final and conclusive and may not be reviewed on
appeal[7] does not apply when there appears in the record of the case
some facts or circumstances of weight and influence which have been
overlooked, or the significance of which have been misinterpreted, that if
considered, would affect the result of the case.[8] Here, the trial court failed
to appreciate facts and circumstances that would have altered its conclusion.
Section 6, Rule 78 of the Revised Rules of Court lays down the persons
preferred who are entitled to the issuance of letters of administration, thus:
Section 6. When and to whom letters of administration granted. If no
executor is named in the will, or the executor or executors are incompetent,
refuse the trust, or fail to give bond, or a person dies intestate,
administration shall be granted:
(a) To the surviving husband or wife, as the case may be, or next of kin, or

(b) If such surviving husband or wife, as the case may be, or next of kin, or
the person selected by them, be incompetent or unwilling, or if the husband
or widow, or next of kin, neglects for thirty (30) days after the death of a
person to apply for administration or to request that administration be
granted to some other person, it may be granted to one or more of the
principal creditors, if competent and willing to serve;

Upon the other hand, Section 2 of Rule 79 provides that a petition for
letters of administration must be filed by an interested person, thus:
Sec.2 Contents of petition for letters of administration. A petition for
letters of administration must be filed by an interested person and must
show, so far as known to the petitioner:
(a) The jurisdictional facts; x x x" (Emphasis ours)
An "interested party", in estate proceedings, is one who would be
benefited in the estate, such as an heir, or one who has a claim against the
estate, such as a creditor.[9] Also, in estate proceedings, the phrase "next of
kin" refers to those whose relationship with the decedent is such that they
are entitled to share in the estate as distributees.[10] In Gabriel v. Court of
Appeals,[11] this Court held that in the appointment of the administrator of
the estate of a deceased person, the principal consideration reckoned with is
the interest in said estate of the one to be appointed administrator.
Here, undisputed is the fact that the deceased, Juan C. Locsin, was not
survived by a spouse. In his petition for issuance of letters of administration,
respondent alleged that he is an acknowledged natural son of the
deceased, implying that he is an interested person in the estate and is
considered as next of kin. But has respondent established that he is an
acknowledged natural son of the deceased? On this point, this Court, through
Mr. Justice Jose C. Vitug, held:
"The filiation of illegitimate children, like legitimate children, is
established by (1) the record of birth appearing in the civil register or a final
judgement; or (2) an admission of legitimate filiation in a public document or
a private handwritten instrument and signed by the parent concerned. In the
absence thereof, filiation shall be proved by (1) the open and continuous
possession of the status of a legitimate child; or (2) any other means allowed
by the Rules of Court and special laws. The due recognition of an illegitimate
child in a record of birth, a will, a statement before a court of record, or in any
authentic writing is, in itself, a consummated act of acknowledgement of the
child, and no further court action is required. In fact, any authentic writing is
treated not just a ground for compulsory recognition; it is in itself a voluntary
recognition that does not require a separate action for judicial
approval. Where, instead, a claim for recognition is predicated on other
evidence merely tending to prove paternity, i.e., outside of a record of birth,
a will, a statement before a court of record or an authentic writing, judicial

action within the applicable statute of limitations is essential in order to

establish the child's acknowledgment."[12] (Emphasis ours)
Here, respondent, in order to establish his filiation with the deceased,
presented to the trial court his Certificate of Live Birth No. 477 (Exhibit "D")
and a photograph (Exhibit "C") taken during the burial of the deceased.
Regarding the genuineness and probative value of Exhibit "D", the trial
court made the following findings, affirmed by the Appellate Court:
"It was duly established in Court that the Certificate of Live Birth No. 477 in
the name of Juan E. Locsin, Jr., the original having been testified to by Rosita
Vencer, exists in the files of the Local Civil Registrar of Iloilo. Petitioner since
birth enjoyed the open and continuous status of an acknowledged natural
child of Juan C. Locsin, Sr., he together with his mother was summoned to
attend to the burial as evidenced by a picture of relatives facing the coffin of
the deceased with petitioner and his mother in the picture. x x x. It was duly
proven at the trial that the standard signatures presented by oppositors were
not in public document and may also be called questioned document
whereas in the certificate of live birth No. 477, the signature of Juan C. Locsin,
Sr. was the original or primary evidence. The anomalous and suspicious
characteristic of the bound volume where the certificate of live birth as
alleged by oppositors was found was testified to and explained by Rosita
Vencer of the Office of the Local Civil Registrar that they run out of forms in
1957 and requisitioned forms. However, the forms sent to them was the 1958
revised form and that she said their office usually paste the pages of the
bound volume if destroyed. All the doubts regarding the authenticity and
genuineness of the signatures of Juan C. Locsin, Sr. and Emilio Tomesa, and
the suspicious circumstances of the bound volume were erased due to the
explanation of Rosita Vencer."

The event about which she testified on March 7, 1994 was the record of
respondent's birth which took place on October 22, 1956, on 37 or 38 years
ago. The Local Civil Registrar of Iloilo City at that time was Emilio G.
Tomesa. Necessarily, Vencer's knowledge of respondent's birth record
allegedly made and entered in the Local Civil Registry in January, 1957 was
based merely on her general impressions of the existing records in that
Office.
When entries in the Certificate of Live Birth recorded in the Local Civil
Registry vary from those appearing in the copy transmitted to the Civil
Registry General, pursuant to the Civil Registry Law, the variance has to be
clarified in more persuasive and rational manner. In this regard, we find
Vencer's explanation not convincing.
Respondent's Certificate of Live Birth No. 477 (Exhibit "D") was recorded
in a December 1, 1958 revised form. Asked how a 1958 form could be used
in 1957 when respondent's birth was recorded, Vencer answered that "xxx
during that time, maybe the forms in 1956 were already exhausted so the
former Civil Registrar had requested for a new form and they sent us the
1958 Revised Form."[13]
The answer is a "maybe", a mere supposition of an event. It does not
satisfactorily explain how a Revised Form dated December 1, 1958 could
have been used on January 30, 1957 or almost (2) years earlier.
Upon the other hand, Exhibit "8" of the petitioners found in the Civil
Registrar General in Metro Manila is on Municipal Form No. 102, revised in
July, 1956. We find no irregularity here. Indeed, it is logical to assume that
the 1956 forms would continue to be used several years thereafter. But for a
1958 form to be used in 1957 is unlikely.

This Court cannot subscribe to the above findings.

Pursuant to Section 12 of Act 3753 (An Act to Establish a Civil Register),
the records of births from all cities and municipalities in the Philippines are
officially and regularly forwarded to the Civil Registrar General in Metro
Manila by the Local Civil Registrars. Since the records of births cover several
decades and come from all parts of the country, to merely access them in the
Civil Registry General requires expertise. To locate one single birth record
from the mass, a regular employee, if not more, has to be engaged. It is
highly unlikely that any of these employees in Metro Manila would have
reason to falsify a particular 1957 birth record originating from the Local Civil
Registry of Iloilo City.
With respect to Local Civil Registries, access thereto by interested
parties is obviously easier. Thus, in proving the authenticity of Exhibit "D,"
more convincing evidence than those considered by the trial court should
have been presented by respondent.
The trial court held that the doubts respecting the genuine nature of
Exhibit "D" are dispelled by the testimony of Rosita Vencer, Local Civil
Registrar of Iloilo City.

There are other indications of irregularity relative to Exhibit "D." The

back cover of the 1957 bound volume in the Local Civil Registry of Iloilo is
torn. Exhibit "D" is merely pasted with the bound volume, not sewn like the
other entries.
The documents bound into one volume are original copies. Exhibit "D" is
a carbon copy of the alleged original and sticks out like a sore thumb
because the entries therein are typewritten, while the records of all other
certificates are handwritten. Unlike the contents of those other certificates,
Exhibit "D" does not indicate important particulars, such as the alleged
father's religion, race, occupation, address and business. The space which
calls for an entry of the legitimacy of the child is blank. On the back page of
Exhibit "D", there is a purported signature of the alleged father, but the
blanks calling for the date and other details of his Residence Certificate were
not filled up.
When asked to explain the torn back cover of the bound volume, Vencer
had no answer except to state, "I am not aware of this because I am not a
bookbinder." As to why Exhibit "D" was not sewn or bound into the volume,
she explained as follows:

"COURT:
I will butt in. Are these instances where your employees would only paste a
document like this Certificate of Live Birth?
WITNESS:
Yes, Your Honor, we are pasting some of the leaves just to replace the
record. Sometimes we just have it pasted in the record when the leaves were
taken.
ATTY. TIROL:
You mean to say you allow the leaves of the bound volume to be taken out?
A: No sir. It is because sometimes the leaves are detached so we have
to paste them."[14] (Emphasis ours)
There is no explanation why out of so many certificates, this vital
document, Exhibit "D", was merely pasted with the volume.
Vencer's testimony suffers from infirmities. Far from explaining the
anomalous circumstances surrounding Exhibit "D", she actually highlighted
the suspicious circumstances surrounding its existence.
The records of the instant case adequately support a finding that Exhibit
"8" for the petitioners, not respondent's Exhibit "D", should have been given
more faith and credence by the courts below.
The Civil Registry Law requires, inter alia, the Local Civil Registrar to
send copies of registrable certificates and documents presented to them for
entry to the Civil Registrar General, thus:
Duties of Local Civil Registrar. Local civil registrars shall (a) file registrable
certificates and documents presented to them for entry; (b) compile the
same monthly and prepare and send any information required of them by the
Civil-Registrar; (c) issue certified transcripts or copies of any document
registered upon payment of proper fees; (d) order the binding, properly
classified, of all certificates or documents registered during the
year; (e) send to the Civil Registrar-General, during the first ten days
of each month, a copy of the entries made during the preceding
month, for filing; (f) index the same to facilitate search and identification in
case any information is required; and (g) administer oaths, free of charge, for
civil register purposes"[15] (Emphasis ours)
In light of the above provisions, a copy of the document sent by the
Local Civil Registrar to the Civil Registrar General should be identical in form
and in substance with the copy being kept by the latter.In the instant case,
Exhibit "8", as transmitted to the Civil Registrar General is not identical with
Exhibit "D" as appearing in the records of the Local Civil Registrar of Iloilo
City. Such circumstance should have aroused the suspicion of both the trial
court and the Court of Appeals and should have impelled them to declare
Exhibit "D" a spurious document.
Exhibit "8" shows that respondent's record of birth was made by his

mother. In the same Exhibit "8", the signature and name of Juan C. Locsin
listed as respondent's father and the entry that he and Amparo Escamilla
were married in Oton, Iloilo on November 28, 1954 do not appear.
In this connection, we echo this Court's pronouncement in Roces vs.
Local Civil Registrar[16] that:
Section 5 of Act No. 3753 and Article 280 of the Civil Code of the Philippines x
x x explicitly prohibit, not only the naming of the father of the child born out
of wedlock, when the birth certificate, or the recognition, is not filed
or made by him, but also, the statement of any information or
circumstances by which he could be identified. Accordingly, the Local Civil
Registrar had no authority to make or record the paternity of an illegitimate
child upon the information of a third person and the certificate of birth of
an illegitimate child, when signed only by the mother of the latter, is
incompetent evidence of fathership of said child. (Emphasis ours)
The Roces ruling regarding illegitimate filiation is further elucidated
in Fernandez vs. Court of Appeals [17] where this Court said that "a birth
certificate not signed by the alleged father (who had no hand in its
preparation) is not competent evidence of paternity."
A birth certificate is a formidable piece of evidence prescribed by both
the Civil Code and Article 172 of the Family Code for purposes of recognition
and filiation. However, birth certificate offers onlyprima facie evidence of
filiation and may be refuted by contrary evidence.[18] Its evidentiary worth
cannot be sustained where there exists strong, complete and conclusive
proof of its falsity or nullity. In this case, respondent's Certificate of Live Birth
No. 477 entered in the records of the Local Civil Registry (from which Exhibit
"D" was machine copied) has all the badges of nullity. Without doubt, the
authentic copy on file in that office was removed and substituted with a
falsified Certificate of Live Birth.
At this point, it bears stressing the provision of Section 23, Rule 132 of
the Revised Rules of Court that "(d)ocuments consisting of entries in public
records made in the performance of a duty by a public officer are prima
facie evidence of the facts therein stated." In this case, the glaring
discrepancies between the two Certificates of Live Birth (Exhibits "D" and "8")
have overturned the genuineness of Exhibit "D" entered in the Local Civil
Registry. What is authentic is Exhibit "8" recorded in the Civil Registry
General.
Incidentally, respondent's photograph with his mother near the coffin of
the late Juan C. Locsin cannot and will not constitute proof of filiation,[19] lest
we recklessly set a very dangerous precedent that would encourage and
sanction fraudulent claims. Anybody can have a picture taken while standing
before a coffin with others and thereafter utilize it in claiming the estate of
the deceased.
Respondent Juan E. Locsin, Jr. failed to prove his filiation with the late
Juan C. Locsin, Sr.. His Certificate of Live Birth No. 477 (Exhibit "D") is
spurious. Indeed, respondent is not an interested personwithin the
meaning of Section 2, Rule 79 of the Revised Rules of Court entitled to the

issuance of letters of administration.

WHEREFORE, the petition is hereby GRANTED. The challenged Decision
and Resolution of the Court of Appeals in CA-G.R. No. 57708 are REVERSED
and SET ASIDE. Respondent's petition for issuance of letters of administration
is ORDERED DISMISSED.
SO ORDERED.

[G.R. No. 124853. February 24, 1998]

FRANCISCO L. JISON, petitioner, vs. COURT OF APPEALS and MONINA

JISON, respondent.
DECISION
DAVIDE, JR., J.:
This is a petition for review under Rule 45 of the Rules of Court of the 27
April 1995 decision of the Court of Appeals (CA) in CA-G.R. CV No.
32860[1] which reversed the decision of Branch 24 of the Regional Trial Court
(RTC) of Iloilo City in Civil Case No. 16373.[2] The latter dismissed the
complaint of private respondent Monina Jison (hereafter MONINA) for
recognition as an illegitimate child of petitioner Francisco Jison (hereafter
FRANCISCO).
In issue is whether or not public respondent Court of Appeals committed
reversible error, which, in this instance, necessitates an inquiry into the
facts. While as a general rule, factual issues are not within the province of
this Court, nevertheless, in light of the conflicting findings of facts of the trial
court and the Court of Appeals, this case falls under an exception to this rule.
[3]
In her complaint[4] filed with the RTC on 13 March 1985, MONINA alleged
that FRANCISCO had been married to a certain Lilia Lopez Jison since 1940. At
the end of 1945 or the start of 1946, however, FRANCISCO impregnated
Esperanza F. Amolar (who was then employed as the nanny of FRANCISCO's
daughter, Lourdes). As a result, MONINA was born on 6 August 1946, in
Dingle, Iloilo, and since childhood, had enjoyed the continuous, implied
recognition as an illegitimate child of FRANCISCO by his acts and that of his
family. MONINA further alleged that FRANCISCO gave her support and spent

for her education, such that she obtained a Master's degree, became a
certified public accountant (CPA) and eventually, a Central Bank examiner. In
view of FRANCISCO's refusal to expressly recognize her, MONINA prayed for a
judicial declaration of her illegitimate status and that FRANCISCO support and
treat her as such.
In his answer,[5] FRANCISCO alleged that he could not have had sexual
relations with Esperanza Amolar during the period specified in the complaint
as she had ceased to be in his employ as early as 1944, and did not know of
her whereabouts since then; further, he never recognized MONINA, expressly
or impliedly, as his illegitimate child. As affirmative and special defenses,
FRANCISCO contended that MONINA had no right or cause of action against
him and that her action was barred by estoppel, laches and/or
prescription. He thus prayed for dismissal of the complaint and an award of
damages due to the malicious filing of the complaint.
After MONINA filed her reply,[6] pre-trial was conducted where the
parties stipulated on the following issues:
1. Did Francisco Jison have any sexual relation[s] with Esperanza
Am[o]lar about the end of 1945 or the start of 1946?
2. Is Monina Jison the recognized illegitimate daughter of Francisco
Jison by the latters own acts and those of his family?
3. Is Monina Jison barred from instituting or prosecuting the present
action by estoppel, laches and/or prescription?
4. Damages.[7]
At trial on the merits, MONINA presented a total of eleven (11)
witnesses, namely: herself, Ruben Castellanes, Sr., Adela Casabuena, Arsenio
Duatin, Zafiro Ledesma, Danthea Lopez, Romeo Bilbao, Rudy Tingson, Alfredo
Baylosis, Dominador Zavariz and Lope Amolar.
Ruben Castellanes, Sr., a 63-year old resident of Iloilo City, testified that
he had worked for FRANCISCO for a total of six (6) years at Nelly Garden,
FRANCISCO's Iloilo residence.Towards the end of the Japanese occupation,
FRANCISCOs wife suffered a miscarriage or abortion, thereby depriving
FRANCISCO of consortium; thereafter, FRANCISCOs wife managed a nightclub
on the ground floor of Nelly Garden which operated daily from 6:00 p.m. till
3:00 a.m. of the following day, thereby allowing FRANCISCO free access to
MONINAs mother, Esperanza Amolar, who was nicknamed Pansay.
Adela Casabuena, a 61-year old farmer, testified that she served as
the yaya (nanny)
of
Lourdes
from
July
1946
up
to
February
1947. Although Pansay had left Nelly Garden two (2) weeks before Adela
started working for the Jisons, Pansay returned sometime in September 1946,
or about one month after she gave birth to MONINA, to ask FRANCISCO for
support. As a result, Pansay and Lilia Jison, FRANCISCO's wife, quarreled in
the living room, and in the course thereof, Pansay claimed that FRANCISCO

was the father of her baby. To which, Lilia replied: I did not tell you to make
that baby so it is your fault. During the quarrel which lasted from 10:30 till
11:00 a.m., FRANCISCO was supposedly inside the house listening.
Arsenio Duatin, a 77-year old retired laborer, testified that from 1947
until 1977, he worked as FRANCISCOs houseboy at the latters house on 12th
Street, Capitol Subdivision, Bacolod City. Arsenio met MONINA in 1967, when
Felipe Lagarto, the bookkeeper at Nelly Garden, informed Arsenio that
MONINA, FRANCISCOs daughter, would arrive at Bacolod City with a letter of
introduction from Lagarto.
Initially, Arsenio identified seven (7) black-and-white photographs (Exhs.
X-5 to X-11) of MONINA,[8] and as he paid for the telephone bills, he likewise
identified six (6) telephone cards (Exhs. G to L). Arsenio then declared that
when MONINA arrived in Bacolod City, she introduced herself to him as
FRANCISCOs daughter. She stayed at FRANCISCOs house, but when the latter
and his wife would come over, Arsenio would conceal the presence of
MONINA because Mrs. Jison did not like to see her face. Once, Arsenio hid
MONINA in the house of FRANCISCOs sister, Mrs. Luisa Jison Alano, in Silay
City; another time, at the residence of FRANCISCOs cousin, Mrs. Concha
Lopez Cuaycong. Finally, Arsenio declared that the last time he saw MONINA
was when she left for Manila, after having finished her schooling at La Salle
College in Bacolod City.
On re-direct and upon questions by the court, Arsenio disclosed that it
was FRANCISCO who instructed that MONINA be hidden whenever
FRANCISCO and his wife were around; that although FRANCISCO and MONINA
saw each other at the Bacolod house only once, they called each other
through long distance; and that MONINA addressed FRANCISCO as Daddy
during their lone meeting at the Bacolod house and were affectionate to each
other. Arsenio likewise declared that MONINA stayed at FRANCISCO's Bacolod
house twice: first for a month, then for about a week the second time. On
both occasions, however, FRANCISCO and his wife were abroad. Finally,
Arsenio recalled that FRANCISCO likewise bade Arsenio to treat MONINA like
his (FRANCISCOs) other daughters.
The testimony of Zafiro Ledesma, a 74-year old banker and former
mayor of Iloilo City, initially touched on how he and his wife were related to
FRANCISCO, FRANCISCO's wife and MONINA. Zafiro first identified Exhibit R, a
diagram of the family trees of the Jison and Lopez families, which showed
that former Vice-President Fernando Lopez was the first cousin of
FRANCISCOs wife, then told the court that the family of Vice-President Lopez
treated MONINA very well because she is considered a relative xxx by
reputation, by actual perception. Zafiro likewise identified Exhibits X-13 to X18, photographs taken at the 14 April 1985 birthday celebration of Mrs.
Fernando Lopez, which showed MONINA with the former Vice-President and
other members of the Lopez family.
Zafiro further testified that while MONINA lived with Mrs. Cuaycong, the
latter paid for some of MONINAs school needs and even asked MONINA to
work in a hospital owned by Mrs. Cuaycong; and that another first cousin of
FRANCISCOs wife, a certain Remedios Lopez Franco, likewise helped MONINA
with her studies and problems, and even attended MONINAs graduation in

1978 when she obtained a masteral degree in Business Administration, as

evidenced by another photograph (Exh. X-12). Moreover, upon Remedios
recommendation, MONINA was employed as a secretary at Merchant
Financing Company, which was managed by a certain Danthea Lopez, the
wife of another first cousin of FRANCISCOs wife, and among whose directors
were Zafiro himself, his wife and Dantheas husband. In closing, Zafiro
identified MONINAs Social Security Record (Exh. W), which was signed by
Danthea as employer and where MONINA designated Remedios as the
beneficiary.
Danthea Lopez, a 58-year old housekeeper, declared that FRANCISCO
was the first cousin of her husband, Eusebio D. Lopez; and that she came to
know MONINA in the latter part of 1965 when Remedios Franco
recommended MONINA for employment at Merchant Financing Co., which
Danthea managed at that time. Remedios introduced MONINA to Danthea as
being reputedly the daughter of Mr. Frank Jison; and on several occasions
thereafter, Remedios made Danthea and the latters husband understand that
MONINA was reputedly the daughter of [FRANCISCO]. While MONINA worked
at Merchant Financing, Danthea knew that MONINA lived with
Remedios; however, in the latter part of 1966, as Remedios left for Manila
and MONINA was still studying at San Agustin University, Danthea and her
husband invited MONINA to live with them. During MONINAs 6-month stay
with them, she was not charged for board and lodging and was treated as a
relative, not a mere employee, all owing to what Remedios had said
regarding MONINAs filiation. As Danthea understood, MONINA resigned from
Merchant Financing as she was called by Mrs. Cuaycong, a first cousin of
Dantheas husband who lived in Bacolod City.
Romeo Bilbao, a 43-year old seaman, testified that he had worked for
FRANCISCO from 1969 up to 1980 at Nelly Garden in various capacities: as a
procurement
officer,
hacienda
overseer
and,
later,
as hacienda
administrator. Sometime in May, 1971, Romeo saw and heard MONINA ask
her Daddy (meaning FRANCISCO) for the money he promised to give her, but
FRANCISCO answered that he did not have the money to give, then told
MONINA to go see Mr. Jose Cruz in Bacolod City. Then in the middle of
September that year, FRANCISCO told Romeo to pick up Mr. Cruz at the Iloilo
pier and bring him to the office of Atty. Benjamin Tirol. At said office, Atty.
Tirol, Mr. Cruz and MONINA entered a room while Romeo waited outside.When
they came out, Atty. Tirol had papers for MONINA to sign, but she
refused. Atty. Tirol said that a check would be released to MONINA if she
signed the papers, so MONINA acceded, although Atty. Tirol intended not to
give MONINA a copy of the document she signed. Thereafter, Mr. Cruz gave
MONINA a check (Exh. Q), then MONINA grabbed a copy of the document she
signed and ran outside. Romeo then brought Mr. Cruz to Nelly Garden. As to
his motive for testifying, Romeo stated that he wanted to help MONINA be
recognized as FRANCISCOS daughter.
Rudy Tingson, a 45-year old antique dealer, testified that in 1963-1964,
he was employed by FRANCISCOs wife at the Baguio Military Institute in
Baguio City; then in 1965, Rudy worked at FRANCISCOs office at Nelly Garden
recording hacienda expenses, typing vouchers and office papers, and, at
times, acting as paymaster for the haciendas. From the nature of his work,
Rudy knew the persons receiving money from FRANCISCOs office, and clearly

remembered that in 1965, as part of his job, Rudy gave MONINA her
allowance from FRANCISCO four (4) times, upon instructions of a certain Mr.
Lagarto to give MONINA P15.00 a month. Rudy likewise recalled that he first
met MONINA in 1965, and that she would go to Nelly Garden whenever
FRANCISCOs wife was not around. On some of these occasions, MONINA
would speak with and address FRANCISCO as Daddy, without objection from
FRANCISCO. In fact, in 1965, Rudy saw FRANCISCO give MONINA money
thrice. Rudy further declared that in April 1965, FRANCISCOs office paid
P250.00 to Funeraria Bernal for the funeral expenses of MONINAs
mother. Finally, as to Rudy's motives for testifying, he told the court that he
simply wanted to help bring out the truth and nothing but the truth, and that
MONINAs filiation was common knowledge among the people in the office at
Nelly Garden.
On re-direct, Rudy declared that the moneys given by FRANCISCOs office
to MONINA were not reflected in the books of the office, but were kept in a
separate book, as Mr. Lagarto explained that FRANCISCOs wife and children
should not know [of] this. Rudy further revealed that as to the garden
meetings between FRANCISCO and MONINA, Rudy saw MONINA kiss
FRANCISCO on the cheek both upon arriving and before leaving, and
FRANCISCOs reaction upon seeing her was to smile and say in the Visayan
dialect: Kamusta ka iha? (How are you, daughter?); and that MONINA was
free to go inside the house as the household staff knew of her filiation, and
that, sometimes, MONINA would join them for lunch.
Alfredo Baylosis, a 62-year old retired accountant, testified that he
worked for FRANCISCO at Central Santos-Lopez in Iloilo from 1951 up to
1961, then at Nelly Garden from 1961 until 1972. Alfredo first served
FRANCISCO as a bookkeeper, then when Mr. Lagarto died in 1967 or 1969,
Alfredo replaced Mr. Lagarto as office manager.
Alfredo knew MONINA since 1961 as she used to go to Nelly Garden to
claim her P15.00 monthly allowance given upon FRANCISCOs standing
order. Alfredo further declared thatMONINAs filiation was pretty well-known in
the office; that he had seen MONINA and FRANCISCO go from the main
building to the office, with FRANCISCOs arm on MONINAs shoulder;and that
the office paid for the burial expenses of Pansay, but this was not recorded in
the books in order to hide it from FRANCISCOs wife. Alfredo also disclosed
that the disbursements for MONINAs allowance started in 1961 and were
recorded in a separate cash book. In 1967, the allowances ceased when
MONINA stopped schooling and was employed in Bacolod City with Miller,
Cruz & Co., which served as FRANCISCOs accountant-auditor. Once, when
Alfredo went to the offices of Miller, Cruz & Co. to see the manager, Mr.
Atienza, and arrange for the preparation of FRANCISCOs income tax return,
Alfredo chanced upon MONINA. When Alfredo asked her how she came to
work there, she answered that her Daddy, FRANCISCO,recommended her, a
fact confirmed by Mr. Atienza. Alfredo then claimed that Mr. Jose Cruz, a
partner at Miller, Cruz & Co., was the most trusted man of FRANCISCO.
Dominador Savariz, a 55-year old caretaker, testified that he worked as
FRANCISCOs houseboy at Nelly Garden from November 1953 up to 1965. One
morning in April 1954, MONINA and her mother Pansay went to Nelly Garden
and spoke with FRANCISCO for about an hour, during which time, Dominador

was vacuuming the carpet about six (6) to seven (7) meters away. Due to the
noise of the vacuum cleaner, FRANCISCO and MONINA spoke in loud voices,
thus
Dominador
overheard
their
conversation. As
FRANCISCO
asked Pansay why they came, Pansay answered that they came to ask for the
sustenance of his child MONINA. FRANCISCO then touched MONINA's head
and asked: How are you Hija?, to which MONINA answered: Good morning,
Daddy. After FRANCISCO told Pansay and MONINA to wait, he pulled
something from his wallet and said to Pansay: I am giving this for the child.
In May 1954, Dominador saw MONINA at Mr. Lagartos office
where Dominador was to get the days expenses, while MONINA was claiming
her allowance from Mr. Diasnes. The next month, Dominador saw MONINA at
Nelly Garden and heard in the office that MONINA was there to get her
allowance from her Daddy. In December 1960, Dominador saw MONINA at
Nelly Garden, in the room of Don Vicente (father of FRANCISCOs wife), where
she asked for a Christmas gift and she was calling Don
Vicente, Lolo (grandfather). At that time, FRANCISCO and his wife were not
around. Then sometime in 1961, when Dominador went to Mr. Lagartos office
to get the marketing expenses, Dominador saw MONINA once more claiming
her allowance.
Dominador further testified that in February 1966, after he had stopped
working for FRANCISCO, Dominador was at Mrs. Francos residence as she
recommended him for employment with her sister, Mrs. Concha
Cuaycong. There, he saw MONINA, who was then about 15 years old,
together with Mrs. Francos daughter and son. Mrs. Franco pointed at MONINA
and asked Dominador if he knew who MONINA was. Dominador answered
that MONINA was FRANCISCOs daughter with Pansay, and then Mrs. Franco
remarked that MONINA was staying with her (Mrs. Franco) and that she was
sending MONINA to school at the University of San Agustin.
Lope Amolar, a 50-year old resident of Dingle, Iloilo, and the younger
brother of Esperanza Amolar (Pansay), testified that he worked for
FRANCISCO as a houseboy from March to November 1945 at Nelly
Garden. Thereafter, FRANCISCO sent Lope to work at Elena Apartments in
Manila. By November 1945, Pansay was also working at Elena Apartments,
where she revealed to Lope that FRANCISCO impregnated her. Lope then
confronted FRANCISCO, who told Lope dont get hurt and dont cause any
trouble, because I am willing to support yourInday Pansay and my
child. Three (3) days after this confrontation, Lope asked for and received
permission from FRANCISCO to resign because he (Lope) was hurt.
On 21 October 1986, MONINA herself took the witness stand. At that
time, she was 40 years old and a Central Bank Examiner. She affirmed that as
evidenced by certifications from the Office of the Local Civil Registrar (Exhs. E
and F) and baptismal certificates (Exhs. C and D), she was born on 6 August
1946 in Barangay Tabugon, Dingle, Iloilo, to Esperanza Amolar (who passed
away on 20 April 1965) and FRANCISCO.[9] MONINA first studied at Sagrado
where she stayed as a boarder. While at Sagrado from 1952 until 1955 (up to
Grade 4), her father, FRANCISCO, paid for her tuition fees and other school
expenses. She either received the money from FRANCISCO or from Mr.
Lagarto, or saw FRANCISCO give money to her mother, or Mr. Lagarto would
pay Sagrado directly. After Sagrado, MONINA studied in different schools,

[10] but FRANCISCO continuously answered for her schooling.

For her college education, MONINA enrolled at the University of Iloilo, but
she later dropped due to an accident which required a week's
hospitalization. Although FRANCISCO paid for part of the hospitalization
expenses, her mother shouldered most of them. In 1963, she enrolled at the
University of San Agustin, where she stayed with Mrs. Franco who paid for
MONINA's tuition fees. However, expenses for books, school supplies,
uniforms and the like were shouldered by FRANCISCO. At the start of each
semester, MONINA would show FRANCISCO that she was enrolled, then he
would ask her to canvass prices, then give her the money she needed. After
finishing two (2) semesters at University of San Agustin, as evidenced by her
transcript of records (Exh. Z showing that FRANCISCO was listed as
Parent/Guardian [Exh. Z-1]), she transferred to De Paul College, just in front of
Mrs. Francos house, and studied there for a year. Thereafter, MONINA enrolled
at Western Institute of Technology (WIT), where she obtained a bachelors
degree in Commerce in April 1967. During her senior year, she stayed with
Eusebio and Danthea Lopez at Hotel Kahirup, owned by said couple. She
passed the CPA board exams in 1974, and took up an M.B.A. at De La Salle
University as evidenced by her transcript (Exh. AA), wherein FRANCISCO was
likewise listed as Guardian (Exhs. AA-1 and AA-2).
MONINA enumerated the different members of the household staff at
Nelly Garden, to wit: Luz, the household cook; the houseboys Silvestre and
Doming; the
housemaid
Natang; theyaya of
the
adopted
triplets,
Deling; the yaya of Lolo Vicente,
Adelina; and
others. MONINA
likewise
enumerated the members of the office staff (Messrs. Baylosis, Lagarto,
Tingson, Diasnes, Jalandoni, Supertisioso, Doroy, and others), and identified
them from a photograph marked as Exhibit X-2. She then corroborated the
prior testimony regarding her employment at Merchant Financing Co., and
her having lived at Hotel Kahirup and at Mrs. Cuaycongs residence in Bacolod
City, while working at the hospital owned by Mrs. Cuaycong.
MONINA further testified that in March 1968, she went to Manila and met
FRANCISCO at Elena Apartments at the corner of Romero and Salas Streets,
Ermita. She told FRANCISCO that she was going for a vacation in Baguio City
with Mrs. Francos mother, with whom she stayed up to June 1968. Upon her
return from Baguio City, MONINA told FRANCISCO that she wanted to work, so
the latter arranged for her employment at Miller & Cruz in Bacolod
City. MONINA went to Bacolod City, was interviewed by Mr. Jose Cruz, a
partner at Miller & Cruz, who told her she would start working first week of
September, sans examination. She resigned from Miller & Cruz in 1971 and
lived with Mrs. Cuaycong at her Forbes Park residence in Makati.MONINA
went to see FRANCISCO, told him that she resigned and asked him for money
to go to Spain, but FRANCISCO refused as she could not speak Spanish and
would not be able find a job. The two quarreled and FRANCISCO ordered a
helper to send MONINA out of the house. In the process, MONINA broke many
glasses at the pantry and cut her hand, after which, FRANCISCO hugged her,
gave her medicine, calmed her down, asked her to return to Bacolod City and
promised that he would give her the money.
MONINA returned to Bacolod City by plane, using a Filipinas Orient
Airways plane ticket (Exh. M) which FRANCISCO gave. She called Mr. Cruz,

then Atty. Tirol, as instructed by Mr. Cruz. These calls were evidenced by PLDT
long distance toll cards (Exhs. G to L), with annotations at the back reading:
charged and paid under the name of Frank L. Jison and were signed by
Arsenio Duatin (Exhs. G-1 to L-1). PLDT issued a certification as to the
veracity of the contents of the toll cards (Exh. BB). Likewise introduced in
evidence was a letter of introduction prepared by Mr. Cruz addressed to Atty.
Tirol, on MONINA's behalf (Exh. N).
MONINA also declared that Atty. Tirol then told her that she would have
to go to Iloilo and sign a certain affidavit, before Mr. Cruz would turn over the
money promised by FRANCISCO.She went to Atty. Tirols office in Iloilo, but
after going over the draft of the affidavit, refused to sign it as it stated that
she was not FRANCISCOs daughter. She explained that all she had agreed
with FRANCISCO was that he would pay for her fare to go abroad, and that
since she was a little girl, she knew about her illegitimacy. She started crying,
begged Atty. Tirol to change the affidavit, to which Atty. Tirol responded that
he was also a father and did not want this to happen to his children as they
could not be blamed for being brought into the world.She then wrote a letter
(Exh. O) to FRANCISCO and sent it to the latters Forbes Park residence
(Bauhinia Place) by JRS courier service (Exhs. O-5 to O-7). MONINA
subsequently met FRANCISCO in Bacolod City where they discussed the
affidavit which she refused to sign. FRANCISCO told her that the affidavit was
for his wife, that in case she heard about MONINA going abroad, the affidavit
would keep her peace.
MONINA then narrated that the first time she went to Atty. Tirols office,
she was accompanied by one Atty. Fernando Divinagracia, who advised her
that the affidavit (Exh. P)[11] would boomerang against FRANCISCO as it is
contrary to law. MONINA returned to Bacolod City, then met with Atty. Tirol
once more to reiterate her plea, but Atty. Tirol did not relent. Thus, on the
morning of 20 or 21 September 1971, she signed the affidavit as she was
jobless and needed the money to support herself and finish her studies. In
exchange for signing the document, MONINA received a Bank of Asia check
for P15,000.00 (Exh. Q), which was less than the P25,000.00 which
FRANCISCO allegedly promised to give. As Atty. Tirol seemed hesitant to give
her a copy of the affidavit after notarizing it, MONINA merely grabbed a copy
and immediately left.
MONINA then prepared to travel abroad, for which purpose, she procured
letters of introduction (Exhs. S and T) from a cousin, Mike Alano (son of
FRANCISCOs elder sister Luisa);and an uncle, Emilio Jison (FRANCISCOs elder
brother), addressed to another cousin, Beth Jison (Emilios daughter), for Beth
to assist MONINA. Exhibit S contained a statement (Exh. S-1) expressly
recognizing that MONINA was FRANCISCOs daughter. Ultimately though,
MONINA decided not to go abroad, opting instead to spend the proceeds of
the P15,000.00 check for her CPA review, board exam and graduate
studies. After finishing her graduate studies, she again planned to travel
abroad, for which reason, she obtained a letter of introduction from former
Vice President Fernando Lopez addressed to then United States Consul
Vernon McAnnich (Exh. V).
As to other acts tending to show her filiation, MONINA related that on
one occasion, as FRANCISCOs wife was going to arrive at the latters Bacolod

City residence, FRANCISCO called Arsenio Duatin and instructed Arsenio to

hide MONINA. Thus, MONINA stayed with Mrs. Luisa Jison for the duration of
the stay of FRANCISCOs wife. MONINA also claimed that she knew Vice
President Fernando Lopez and his wife, Mariquit, even before starting to go to
school. Thus, MONINA asked for a recommendation letter (Exh. U) from Mrs.
Mariquit Lopez for possible employment with Mrs. Rosario Lopez Cooper,
another second cousin of FRANCISCO. In Exhibit U, Mrs. Lopez expressly
recognized MONINA as FRANCISCOs daughter. As additional proof of her close
relationship with the family of Vice President Lopez, MONINA identified
photographs taken at a birthday celebration on 14 April 1985.
MONINA finally claimed that she knew the three (3) children of
FRANCISCO by wife, namely, Lourdes, Francisco, Jr. (Junior) and Elena, but
MONINA had met only Lourdes and Junior.MONINA's testimony dealt lengthily
on her dealings with Junior and the two (2) occasions when she met with
Lourdes. The last time MONINA saw FRANCISCO was in March 1979, when she
sought his blessings to get married.
In his defense, FRANCISCO offered his deposition taken before then
Judge Romeo Callejo of the Regional Trial Court of Manila, Branch 48. As
additional witnesses, FRANCISCO presented Nonito Jalandoni, Teodoro Zulla,
Iigo Supertisioso, Lourdes Ledesma, Jose Cruz and Dolores Argenal.
FRANCISCO declared that Pansays employment ceased as of October,
1944, and that while employed by him, Pansay would sleep with the other
female helpers on the first floor of his residence, while he, his wife and
daughter slept in a room on the second floor. At that time, his household staff
was composed of three (3) female workers and two (2) male
workers. AfterPansay left in October 1944, she never communicated with him
again, neither did he know of her whereabouts. FRANCISCO staunchly denied
having had sexual relations with Pansay and disavowed any knowledge about
MONINAs birth. In the same vein, he denied having paid for MONINAs tuition
fees, in person or otherwise, and asserted that he never knew that Mr.
Lagarto paid for these fees. Moreover, FRANCISCO could not believe that
Lagarto would pay for these fees despite absence of instructions or approval
from FRANCISCO. He likewise categorically denied that he told anyone, be it
Danthea Lopez, Zafiro Ledesma, Concha Cuaycong or Remedios Franco, that
MONINA was his daughter.
FRANCISCO also disclosed that upon his return from the United States in
1971, he fired Alfredo Baylosis upon discovering that Alfredo had taken
advantage of his position during the formers absence. FRANCISCO likewise
fired Rudy Tingson and Romeo Bilbao, but did not give the reasons therefor.
Finally, FRANCISCO denied knowledge of MONINAs long distance calls
from his Bacolod residence; nevertheless, when he subsequently discovered
this, he fired certain people in his office for their failure to report this
anomaly. As regards the caretaker of his Bacolod residence, FRANCISCO
explained that since MONINA lived at Mrs. Cuaycongs residence, the
caretaker thought that he could allow people who lived at the Cuaycong
residence to use the facilities at his (FRANCISCOs) house.

Nonito Jalandoni, bookkeeper and paymaster at Nellys Garden from 1963

up to 1974, then from 1980 up to 1986, the assistant overseer of Hacienda
Lopez, testified that he did not know MONINA; that he learned of her only in
June 1988, when he was informed by FRANCISCO that MONINA had sued him;
and that he never saw MONINA at Nellys Garden, neither did he know of any
instructions for anyone at Nellys Garden to give money to MONINA.
Teodoro Zulla, FRANCISCOs bookkeeper and paymaster from 1951 up to
1986, testified that FRANCISCO dismissed Alfredo Baylosis due to certain
unspecified discrepancies; and that he never saw MONINA receive funds from
either Mr. Lagarto or Mr. Baylosis. Upon questions from the trial court,
however, Teodoro admitted that he prepared vouchers for only one of
FRANCISCOs haciendas, and not vouchers pertaining to the latters personal
expenses.
Iigo Supertisioso testified that he worked for FRANCISCO at Nellys
Garden from 1964 up to 1984 as a field inspector, paymaster, cashier and,
eventually, officer-in-charge (OIC). He confirmed Alfredo Baylosis dismissal
due to these unspecified irregularities, then denied that FRANCISCO ever
ordered that MONINA be given her allowance. Likewise, Iigo never heard
FRANCISCO mention that MONINA was his (FRANCISCOs) daughter.
Lourdes Ledesma, FRANCISCOs daughter, testified that she saw (but did
not know) MONINA at the Our Lady of Mercy Hospital, on the occasion of the
birth of Lourdes first son, Mark.Over lunch one day, Lourdes aunt casually
introduced Lourdes and MONINA to each other, but they were referred to only
by their first names. Then sometime in 1983 or 1984, MONINA allegedly went
to Lourdes house in Sta. Clara Subdivision requesting for a letter of
introduction or referral as MONINA was then job-hunting. However, Lourdes
did not comply with the request.
Jose Cruz, a partner at Miller, Cruz & Co., testified that MONINA worked
at Miller & Cruz from 1968 up to 1971, however, he did not personally
interview her before she was accepted for employment. Moreover, MONINA
underwent the usual screening procedure before being hired. Jose recalled
that one of the accountants, a certain Mr. Atienza, reported that MONINA
claimed to be FRANCISCOs daughter. Jose then told Mr. Atienza to speak with
MONINA and see if he (Mr. Atienza) could stop her from spreading this
rumor. Mr. Atienza reported that he spoke with MONINA, who told him that
she planned to leave for the United States and needed P20,000.00 for that
purpose, and in exchange, she would sign a document disclaiming filiation
with FRANCISCO. Thus, Jose instructed Mr. Atienza to request that MONINA
meet with Jose, and at that meeting, MONINA confirmed Mr. Atienzas
report. Jose then informed Atty. Tirol, FRANCISCOs personal lawyer, about the
matter.
Atty. Tirol told Jose to send MONINA and her lawyer to his (Atty. Tirols)
office in Iloilo. Jose then wrote out a letter of introduction for MONINA
addressed to Atty. Tirol. Jose relayed Atty. Tirols message to MONINA through
Mr. Atienza, then later, Atty. Tirol told Jose to go to Iloilo with a check
for P15,000.00. Jose complied, and at Atty. Tirols office, Jose saw MONINA,
Atty. Tirol and his secretary reading some documents. MONINA then
expressed her willingness to sign the document, sans revisions. Jose alleged

that he drew the P15,000.00 from his personal funds, subject

reimbursement from and due to an understanding with FRANCISCO.

to

Dolores Argenal, a househelper at Nelly Garden from May 1944 up to

May 1946, testified that she knew that Pansay was Lourdes nanny; that
Lourdes slept in her parents room; that she had not seen FRANCISCO give
special treatment to Pansay; that there was no unusual relationship between
FRANCISCO and Pansay, and if there was any, Dolores would have easily
detected it since she slept in the same room as Pansay. Dolores further
declared that whenever FRANCISCOs wife was out of town, Pansay would
bring Lourdes downstairs at nighttime, and that Pansay would not sleep in
the
room
where
FRANCISCO
slept. Finally,
Dolores
declared
that Pansay stopped working for FRANCISCO and his wife in October, 1944.
The reception of evidence having been concluded, the parties filed their
respective memoranda.
It need be recalled that Judge Catalino Castaeda, Jr. presided over trial
up to 21 October 1986, thereby hearing only the testimonies of MONINAs
witnesses and about half of MONINAs testimony on direct examination. Judge
Norberto E. Devera, Jr. heard the rest of MONINA's testimony and those of
FRANCISCOs witnesses.
In its decision of 12 November 1990[12] the trial court, through Judge
Devera, dismissed the complaint with costs against MONINA. In the opening
paragraph thereof, it observed:
This is a complaint for recognition of an illegitimate child instituted by
plaintiff Monina Jison against defendant Francisco Jison. This complaint was
filed on March 13, 1985 at the time when plaintiff, reckoned from her death of
birth, was already thirty-nine years old. Noteworthy also is the fact that it was
instituted twenty years after the death of plaintiffs mother, Esperanza
Amolar. For the years between plaintiffs birth and Esperanzas death, no
action of any kind was instituted against defendant either by plaintiff, her
mother Esperanza or the latters parents. Neither had plaintiff brought such
an action against defendant immediately upon her mothers death on April
20, 1965, considering that she was then already nineteen years old or, within
a reasonable time thereafter. Twenty years more had to supervene before this
complaint was eventually instituted.

admittedly also residing at Nellys Garden at that time. The RTC also ruled
that the probative value of the birth and baptismal certificates of MONINA
paled in light of jurisprudence, especially when the misspellings therein were
considered.
The trial court likewise resolved the second issue in the negative, finding
that MONINAs evidence thereon may either be one of three categories,
namely: hearsay evidence, incredulous evidence, or self-serving evidence." To
the first category belonged the testimonies of Adela Casabuena and Alfredo
Baylosis, whose knowledge of MONINAs filiation was based, as to the former,
on utterances of defendants wife Lilia and Esperanza allegedly during the
heat of their quarrel, while as to the latter, Alfredo's conclusion was based
from the rumors going [around] that plaintiff is defendants daughter, from his
personal observation of plaintiffs facial appearance which he compared with
that of defendants and from the way the two (plaintiff and defendant) acted
and treated each other on one occasion that he had then opportunity to
closely observe them together. To the second category belonged that of
Dominador Savariz, as:
At each precise time that Esperanza allegedly visited Nellys Garden and
allegedly on those occasions when defendants wife, Lilia was in Manila, this
witness was there and allegedly heard pieces of conversation between
defendant and Esperanza related to the paternity of the latters child. xxx
The RTC then placed MONINAs testimony regarding the acts of
recognition accorded her by FRANCISCOs relatives under the third category,
since the latter were never presented as witnesses, for which reason the trial
court excluded the letters from FRANCISCOs relatives (Exhs. S to V).
As to the third issue, the trial court held that MONINA was not barred by
prescription for it was of the perception that the benefits of Article 268
accorded to legitimate children may be availed of or extended to illegitimate
children in the same manner as the Family Code has so provided; or by
laches, which is [a] creation of equity applied only to bring equitable results,
and addressed to the sound discretion of the court [and] the circumstances
[here] would show that whether plaintiff filed this case immediately upon the
death of her mother Esperanza in 1965 or twenty years thereafter in 1985,
xxx there seems to be no inequitable result to defendant as related to the
situation of plaintiff.

The trial court then proceeded to discuss the four issues stipulated at
pre-trial, without, however, summarizing the testimonies of the witnesses nor
referring to the testimonies of the witnesses other than those mentioned in
the discussion of the issues.

The RTC ruled, however, that MONINA was barred by estoppel by deed
because of the affidavit (Exh. P/Exh. 2) which she signed when she was
already twenty-five years, a professional and under the able guidance of
counsel.

The trial court resolved the first issue in the negative, holding that it was
improbable for witness Lope Amolar to have noticed that Pansay was
pregnant upon seeing her at the Elena Apartments in November 1945,
since Pansay was then only in her first month of pregnancy; that there was
no positive assertion that copulation did indeed take place between Francisco
and Esperanza; and that MONINAs attempt to show opportunity on the part of
FRANCISCO failed to consider that there was also the opportunity for
copulation between Esperanza and one of the several domestic helpers

Finally, the RTC denied FRANCISCOs claim for damages, finding that
MONINA did not file the complaint with malice, she having been propelled by
an honest belief, founded on probable cause.
MONINA seasonably appealed to the Court of Appeals (CA-G.R. CV No.
32860) and sought reversal of the trial courts decision on the grounds that:

I
THE TRIAL COURT WAS ERRONEOUSLY PREDISPOSED TO
ADJUDGE THIS CASE AGAINST APPELLANT DUE TO ITS
MISPERCEPTION THAT APPELLANTS DELAY IN FILING HER
COMPLAINT WAS FATAL TO HER CASE.
II
THE TRIAL COURT ERRED IN ITS REJECTION OF THE TESTIMONIES
OF APPELLANTS WITNESSES AS TAILOR-MADE, INADEQUATE AND
INCREDIBLE.
III
THE TRIAL COURT ERRED IN ITS REJECTION OF THE
ADMISSIBILITY OF THE CERTIFIED COPIES OF PUBLIC
DOCUMENTS PRESENTED BY APPELLANT AS PART OF HER
EVIDENCE.
IV
THE TRIAL COURT ERRED IN ITS REQUIREMENT THAT A WITNESS
TO THE ACTUAL ACT OF COPULATION BETWEEN THE APPELLEE
AND APPELLANTS MOTHER SHOULD HAVE POSITIVELY TESTIFIED
TO SAID EFFECT.
V
THE TRIAL COURT ERRED IN REJECTING THE ADMISSIBILITY OF
THE DULY IDENTIFIED NOTES AND LETTER OF THE RELATIVES OF
THE APPELLEE AS HEARSAY.
VI
THE TRIAL COURT ERRED IN CONCLUDING THAT APPELLANTS
AFFIDAVIT (EXH. P) SERVED AS A BAR AGAINST HER CLAIM FOR
RECOGNITION INSTEAD OF REINFORCING SAID CLAIM.[13]
Expectedly, FRANCISCO refuted these alleged errors in his Appellees
Brief.[14]
In its decision of 27 April 1995,[15] the Court of Appeals initially declared
that as no vested or acquired rights were affected, the instant case was
governed by Article 175, in relation to Articles 172 and 173, of the Family
Code.[16] While the Court of Appeals rejected the certifications issued by the
Local Civil Registrar of Dingle, Iloilo (Exhs. E and F) as FRANCISCO did not
sign them, said court focused its discussion on the other means by which
illegitimate filiation could be proved, i.e., the open and continuous possession
of the status of an illegitimate child or, by any other means allowed by the

Rules of Court and special laws, such as the baptismal certificate of the child,
a judicial admission, a family bible wherein the name of the child is entered,
common reputation respecting pedigree, admission by silence, testimonies of
witnesses xxx.[17] To the Court of Appeals, the bottom line issue was
whether or not MONINA established her filiation as FRANCISCOs illegitimate
daughter by preponderance of evidence, as to which issue said court found:
[N]ot just preponderant but overwhelming evidence on record to prove that
[MONINA] is the illegitimate daughter of [FRANCISCO] and that she had
continuously enjoyed such status by direct acts of [FRANCISCO] and/or his
relatives.
In so ruling, the Court of Appeals observed that the testimonies of Lope
Amolar, Adela Casabuena and Dominador Savariz were already sufficient to
establish MONINAs filiation:
As adverted to earlier, the trial court discredited Lope Amolars testimony by
saying that Lope could not have detected Esperanzas pregnant state in
November, 1945 since at that point in time [sic] she was still in the initial
stage of pregnancy.Apparently, the trial court paid more emphasis on the
date mentioned by Lope Amolar than on the tenor and import of his
testimony. As xxx Lope xxx was asked about an incident that transpired more
than 41 years back, [u]nder the circumstances, it is unreasonable to expect
that Lope could still be dead right on the specific month in 1945 that [he] met
and confronted his sister. At any rate, what is important is not the month that
they met but the essence of his testimony that his sister pointed to their
employer [FRANCISCO] as the one responsible for her pregnancy, and that
upon being confronted, [FRANCISCO] assured him of support for Esperanza
and their child. It would appear then that in an attempt to find fault with
Lopes testimony, the trial court has fallen oblivious to the fact that even
[FRANCISCO], in his deposition, did not deny that he was confronted by Lope
about what he had done to Esperanza, during which he unequivocally
acknowledged paternity by assuring Lope of support for both Esperanza and
their child.
The Court of Appelas further noted that Casabuena and Savariz testified
on something that they personally observed or witnessed, which matters
FRANCISCO did not deny or refute.Finally, said court aptly held:
Taking into account all the foregoing uncontroverted testimonies xxx let alone
such circumstantial evidence as [MONINAs] Birth Certificates xxx and
Baptismal Certificates which invariably bear the name of [FRANCISCO] as her
father, We cannot go along with the trial courts theory that [MONINAs]
illegitimate filiation has not been satisfactorily established.
xxx
Significantly, [MONINAs] testimony finds ample corroboration from
[FRANCISCOs] former employees, Arsenio Duatin, Rudy Tingson and Alfredo
Baylosis. xxx
xxx
Carefully evaluating appellants evidence on her enjoyment of the status of an
illegitimate daughter of [FRANCISCO] vis-a-vis [FRANCISCOs] controversion
thereof, We find more weight in the former. The positive testimonies of
[MONINA] and [her] witnesses xxx all bearing on [FRANCISCOs] acts and/or

conduct indubitably showing that he had continuously acknowledged

[MONINA] as his illegitimate daughter have not been succeessfully [sic]
refuted. In fact, [FRANCISCO] himself, in his deposition, only casually
dismissed [MONINAs] exhaustive and detailed testimony as untrue, and with
respect to those given by [MONINAs] witnesses, he merely explained that he
had fired [them] from their employment. Needless to state, [FRANCISCOs]
vague denial is grossly inadequate to overcome the probative weight of
[MONINAs] testimonial evidence.

February, 1966 appellees relative, Ms. Remedios Lopez Franco pointed to

appellant as the daughter of appellee Francisco Jison.

Even the affidavit (Exh 2) which [FRANCISCO] had foisted on the trial court
xxx does not hold sway in the face of [MONINAs] logical explanation that she
at first did agree to sign the affidavit which contained untruthful
statements. In fact, she promptly complained to [FRANCISCO] who, however
explained to her that the affidavit was only for the consumption of his spouse
xxx. Further, the testimony of Jose Cruz concerning the events that led to the
execution of the affidavit xxx could not have been true, for as pointed out by
[MONINA], she signed the affidavit xxx almost five months after she had
resigned from the Miller, Cruz & Co. xxx

True it is that a trial judges assessment of the credibility of witnesses is

accorded great respect on appeal. But the rule admits of certain
exceptions. One such exception is where the judge who rendered the
judgment was not the one who heard the witnesses testify. [citations
omitted] The other is where the trial court had overlooked, misunderstood or
misappreciated some facts or circumstances of weight and substance which,
if properly considered, might affect the result of the case. [citations
omitted] In the present case, both exceptions obtain. All of [MONINAs]
witnesses xxx whose testimonies were not given credence did not testify
before the judge who rendered the disputed judgment. xxx

At any rate, if [MONINA] were not his illegitimate daughter, it would have
been uncalled for, if not absurd, for [FRANCISCO] or his lawyer to have
secured [MONINAs] sworn statement xxx On the contrary, in asking [MONINA]
to sign the said affidavit at the cost of P15,000, [FRANCISCO] clearly betrayed
his intention to conceal or suppress his paternity of [MONINA]. xxx
In fine, We hold that [MONINAs] filiation as [FRANCISCOs] illegitimate
daughter has been conclusively established by the uncontroverted
testimonies of Lope Amolar, Adela Casabuena and Dominador Savariz to the
effect that appellee himself had admitted his paternity of the appellee, and
also by the testimonies of appellant, Arsenio Duatin, Romeo Bilbao, Rudy
Tingson and Alfredo Baylosis unerringly demonstrating that by his own
conduct or overt acts like sending appellant to school, paying for her tuition
fees, school uniforms, books, board and lodging at the Colegio del Sagrado
Corazon de Jesus, defraying appellants hospitalization expenses, providing
her with [a] monthly allowance, paying for the funeral expenses of appellants
mother, acknowledging appellants paternal greetings and calling appellant
his Hija or child, instructing his office personnel to give appellants monthly
allowance, recommending appellant for employment at the Miller, Cruz & Co.,
allowing appellant to use his house in Bacolod and paying for her long
distance telephone calls, having appellant spend her vacation in his
apartment in Manila and also at his Forbes residence, allowing appellant to
use his surname in her scholastic and other records (Exhs Z, AA, AA-1 to AA5, W & W-5), appellee had continuously recognized appellant as his
illegitimate daughter. Added to these are the acts of [FRANCISCOs] relatives
acknowledging or treating [MONINA] as [FRANCISCOs] daughter (Exh U) or as
their relative (Exhs T & V). On this point, witness Zafiro Ledesma, former
Mayor of Iloilo City, whose spouse belongs to the Lopez clan just like
[FRANCISCO], testified that [MONINA] has been considered by the Lopezes as
a relative. He identified pictures of the appellee in the company of the
Lopezes (Exhs X-16 & X-17). Another witness, Danthea H. Lopez, whose
husband Eusebio Lopez is appellees first cousin, testified that appellant was
introduced to her by appellees cousin, Remedios Lopez Franco, as the
daughter of appellee Francisco Jison, for which reason, she took her in as [a]
secretary in the Merchants Financing Corporation of which she was the
manager, and further allowed her to stay with her family free of board and
lodging. Still on this aspect, Dominador Savariz declared that sometime in

Finally, the Certifications of the Local Civil Registrar of Dingle (Exhs E and F)
as well as [MONINAs] Baptismal Certificates (Exhs C & D) which the trial ocurt
admitted in evidence as part of [MONINAs] testimony, may serve as
circumstantial evidence to further reinforce [MONINAs] claim that she is
[FRANCISCOs] illegitimate daughter by Esperanza Amolar.

The Court of Appeals then decreed:

WHEREFORE, premises considered, the judgment of the trial court is SET
ASIDE and another one is hereby entered for appellant Monina Jison,
declaring her as the illegitimate daughter of appellee Francisco Jison, and
entitled to all rights and privileges granted by law.
Costs against appellee.
SO ORDERED.
His motion for reconsideration having been denied by the Court of
Appeals in its resolution of 29 March 1996,[18] FRANCISCO filed the instant
petition. He urges us to reverse the judgment of the Court of Appeals,
alleging that said court committed errors of law:
I.
IN REVERSING THE DECISION OF THE TRIAL COURT AND
DECLARING PRIVATE RESPONDENT AS THE ILLEGITIMATE CHILD
OF PETITIONER, CONSIDERING [THE] IMPOSSIBILITY OF SEXUAL
CONTACT BETWEEN THE PETITIONER AND THE PRIVATE
RESPONDENT'S MOTHER AT THE TIME CONCEPTION WAS
SUPPOSED TO HAVE OCCURRED.
II.
IN REVERSING THE TRIAL COURTS FINDING CONSIDERING THAT
PRIVATE RESPONDENT'S TESTIMONIAL EVIDENCE OF PATERNITY
AND FILIATION IS NOT CLEAR AND CONVINCING.
III.
IN GIVING CREDENCE TO DOCUMENTARY EVIDENCE PRESENTED

BY THE PRIVATE RESPONDENT AS EVIDENCE OF FILIATION

CONSIDERING THAT THE SAME ARE HEARSAY, SELF-SERVING
AND CANNOT BIND THE PETITIONER UNDER THE BASIC RULES
OF EVIDENCE.
IV.
IN INTERPRETING THE PRIVATE RESPONDENT'S SWORN
STATEMENT (EXH. P/EXH. 2) IN A MANNER NOT IN CONSONANCE
WITH THE RULINGS OF THE HONORABLE SUPREME COURT.
V.
IN NOT CONSIDERING THE LONG AND UNEXPLAINED DELAY IN
THE FILING OF THE PRESENT PATERNITY SUIT AS EQUIVALENT TO
LACHES.
As regards the first error, FRANCISCO insists that taking into account the
second paragraph of MONINAs complaint wherein she claimed that he
and Pansay had sexual relations by about the end of 1945 or the start of
1946, it was physically impossible for him and Pansay to have had sexual
contact which resulted in MONINAs birth, considering that:
The normal period of human pregnancy is nine (9) months. If as claimed by
private respondent in her complaint that her mother was impregnated by
FRANCISCO at the end of 1945 or the start of 1946, she would have been
born sometime in late September or early October and not August 6, 1946
xxx. The instant case finds factual and legal parallels in Constantino vs.
Mendez,[19] thus: xxx
FRANCISCO further claims that his testimony that Pansay was no longer
employed by him at the time in question was unrebutted, moreover, other
men had access to Pansay during the time of or even after her employment
by him.
As to the second error, FRANCISCO submits that MONINAs testimonial
evidence is shaky, contradictory and unreliable, and proceeds to attack the
credibility of her witnesses by claiming, in the main, that: (a) Lope Amolar
could not have detected Pansays pregnancy in November 1945 when they
met since she would have been only one (1) month pregnant then; (b)
Dominador Savariz did not in fact witness the meeting between
FRANCISCO, Pansay and MONINA; (c) Zafiro Ledesma had an ulterior motive
in testifying for MONINA as he owned a bank in Iloilo which was then under
Central Bank supervision and MONINA was the Bank Examiner assigned to
Iloilo; and (d) Danthea Lopez was not related to him by blood and whatever
favorable treatment MONINA received from Danthea was due to the formers
employment at Merchants Financing Company and additional services
rendered at Kahirup Hotel; besides, Danthea admitted that she had no
personal knowledge as to the issue of paternity and filiation of the
contending parties, hence Sections 39 and 40[20] of Rule 130 of the Rules of
Court did not come into play. FRANCISCO likewise re-echoes the view of the
trial court as regards the testimonies of Adela Casabuena and Alfredo

Baylosis.
FRANCISCO further asserts that MONINAs testimony that he answered
for her schooling was self-serving and uncorroborated by any receipt or other
documentary evidence; and assuming he did, such should be interpreted as a
manifestation of kindness shown towards the family of a former household
helper.
Anent the treatment given by his relatives to MONINA as his daughter,
FRANCISCO points to the fact that Pansay was the former laundrywoman of
Mrs. Franco; MONINA resided with the families of Eusebio Lopez and Concha
Cuaycong because she was in their employ at Kahirup Hotel and Our Lady of
Mercy Hospital, respectively; MONINA failed to present Mrs. Franco, Eusebio
Lopez and Mrs. Cuaycong; and MONINAs employment at the accounting firm
of Miller, Cruz & Co. was attributable to her educational attainment, there
being absolutely no evidence to prove that FRANCISCO ever facilitated her
employment thereat. Hence, in light of Baluyot v. Baluyot,[21] the quantum
of evidence to prove paternity by clear and convincing evidence, not merely
a preponderance thereof, was not met.
With respect to the third assigned error, FRANCISCO argues that the
Court of Appeals reliance on the certifications of the Local Civil Registrar
(Exhs. E and F) and Baptismal Certificates (Exhs. C and D) as circumstantial
evidence is misplaced. First, their genuineness could not be ascertained as
the persons who issued them did not testify. Second, in light ofReyes v. Court
of Appeals,[22] the contents of the baptismal certificates were hearsay, as
the data was based only on what was told to the priest who solemnized the
baptism, who likewise was not presented as a witness. Additionally, the name
of the father appearing therein was Franque Jison, which was not FRANCISCOs
name. Third, in both Exhibits E and F, the names of the childs parents were
listed as Frank Heson and Esperanza Amador (not Amolar). FRANCISCO
further points out that in Exhibit F, the status of the child is listed as
legitimate, while the fathers occupation as laborer. Most importantly, there
was no showing that FRANCISCO signed Exhibits E and F or that he was the
one who reported the childs birth to the Office of the Local Civil Registrar. As
to MONINAs educational records, FRANCISCO invokes Baas v. Baas[23] which
recognized that school records are prepared by school authorities, not by
putative parents, thus incompetent to prove paternity. And, as to the
photographs presented by MONINA, FRANCISCO cites Colorado v. Court of
Appeals,[24] and further asserts that MONINA did not present any of the
persons with whom she is seen in the pictures to testify thereon; besides
these persons were, at best, mere second cousins of FRANCISCO. He likewise
assails the various notes and letters written by his relatives (Exhs. S to V) as
they were not identified by the authors. Finally, he stresses that MONINA did
not testify as to the telephone cards (Exhs. G to L) nor did these reveal the
circumstances surrounding the calls she made from his residence.
Anent the fourth assigned error, FRANCISCO contends that the Court of
Appeals interpretation of MONINAs affidavit of 21 September 1971 ran
counter to Dequito v. Llamas,[25] and overlooked that at the time of
execution, MONINA was more than 25 years old and assisted by counsel.
As to the last assigned error, FRANCISCO bewails the Court of Appeals

failure to consider the long and unexplained delay in the filing of the case.
In her comment, MONINA forcefully refuted FRANCISCOs arguments,
leading FRANCISCO to file his reply thereto.
On 20 November 1996, we gave due course to this petition and required
the parties to submit their respective memoranda, which they subsequently
did.
A painstaking review of the evidence and arguments fails to support
petitioner.
Before addressing the merits of the controversy, we first dispose of
preliminary matters relating to the applicable law and the guiding principles
in paternity suits. As to the former, plainly, the Family Code of the Philippines
(Executive Order No. 209) governs the present controversy. As correctly cited
by the Court of Appeals, Uyguangco[26] served as a judicial confirmation of
Article 256 of the Family Code[27] regarding its retroactive effect unless
there be impairment of vested rights, which does not hold true here, it
appearing that neither the putative parent nor the child has passed away and
the former having actually resisted the latters claim below.
Under Article 175 of the Family Code, illegitimate filiation, such as
MONINA's, may be established in the same way and on the same evidence as
that of legitimate children. Article 172 thereof provides the various forms of
evidence by which legitimate filiation is established, thus:
ART. 172. The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be
proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
This Article reproduces, with amendments, Articles 265, 266 and 267 of
the Civil Code.
For the success of an action to establish illegitimate filiation under the
second paragraph, which MONINA relies upon given that she has none of the
evidence mentioned in the first paragraph, a high standard of proof[28] is
required. Specifically, to prove open and continuous possession of the status
of an illegitimate child, there must be evidence of the manifestation of the
permanent intention of the supposed father to consider the child as his, by
continuous and clear manifestations of parental affection and care, which
cannot be attributed to pure charity.Such acts must be of such a nature that
they reveal not only the conviction of paternity, but also the apparent desire

to have and treat the child as such in all relations in society and in life, not
accidentally, but continuously.[29]
By continuous is meant uninterrupted and consistent, but does not
require any particular length of time.[30]
The foregoing standard of proof required to establish ones filiation is
founded on the principle that an order for recognition and support may create
an unwholesome atmosphere or may be an irritant in the family or lives of
the parties, so that it must be issued only if paternity or filiation is
established by clear and convincing evidence.[31]
The foregoing discussion, however, must be situated within the general
rules on evidence, in light of the burden of proof in civil cases, i.e.,
preponderance of evidence, and the shifting of the burden of evidence in
such cases. Simply put, he who alleges the affirmative of the issue has the
burden of proof, and upon the plaintiff in a civil case, the burden of proof
never parts.However, in the course of trial in a civil case, once plaintiff makes
out a prima facie case in his favor, the duty or the burden of evidence shifts
to defendant to controvert plaintiffs prima faciecase, otherwise, a verdict
must be returned in favor of plaintiff. Moreover, in civil cases, the party
having the burden of proof must produce a preponderance of evidence
thereon, with plaintiff having to rely on the strength of his own evidence and
not upon the weakness of the defendants. The concept of preponderance of
evidence refers to evidence which is of greater weight, or more convincing,
that which is offered in opposition to it; at bottom, it means probability of
truth.[32]
With these in mind, we now proceed to resolve the merits of the instant
controversy.
FRANCISCOs arguments in support of his first assigned error deserve
scant consideration. While it has been observed that unlawful intercourse will
not be presumed merely from proof of an opportunity for such indulgence,
[33] this does not favor FRANCISCO. Akin to the crime of rape where, in most
instances, the only witnesses to the felony are the participants in the sexual
act themselves, in deciding paternity suits, the issue of whether sexual
intercourse actually occurred inevitably redounds to the victims or mothers
word, as against the accuseds or putative fathers protestations. In the instant
case, MONINAs mother could no longer testify as to the fact of intercourse, as
she had, unfortunately, passed away long before the institution of the
complaint for recognition. But this did not mean that MONINA could no longer
prove her filiation. The fact of her birth and her parentage may be
established by evidence other than the testimony of her mother. The
paramount question then is whether MONINAs evidence is coherent, logical
and natural.[34]
The complaint stated that FRANCISCO had carnal knowledge
of Pansay by about the end of 1945. We agree with MONINA that this was
broad enough to cover the fourth quarter of said year, hence her birth on 6
August 1946 could still be attributed to sexual relations between FRANCISCO
and MONINAs mother. In any event, since it was established that her mother

was still in the employ of FRANCISCO at the time MONINA was conceived as
determined by the date of her birth, sexual contact between FRANCISCO and
MONINAs mother was not at all impossible, especially in light of the
overwhelming evidence, as hereafter shown, that FRANCISCO fathered
MONINA, has recognized her as his daughter and that MONINA has been
enjoying the open and continuous possession of the status as FRANCISCOs
illegitimate daughter.
We readily conclude that the testimonial evidence offered by MONINA,
woven by her narration of circumstances and events that occurred through
the years, concerning her relationship with FRANCISCO, coupled with the
testimonies of her witnesses, overwhelmingly established the following facts:
1) FRANCISCO is MONINAs father and she was conceived at the time when
her mother was in the employ of the former;
2) FRANCISCO recognized MONINA as his child through his overt acts and
conduct which the Court of Appeals took pains to enumerate, thus:
[L]ike sending appellant to school, paying for her tuition fees, school
uniforms, books, board and lodging at the Colegio del Sagrado de Jesus,
defraying appellants hospitalization expenses, providing her with [a] monthly
allowance, paying for the funeral expenses of appellants mother,
acknowledging appellants paternal greetings and calling appellant his Hija or
child, instructing his office personnel to give appellants monthly allowance,
recommending appellant for employment at the Miller, Cruz & Co., allowing
appellant to use his house in Bacolod and paying for her long distance
telephone calls, having appellant spend her vacation in his apartment in
Manila and also at his Forbes residence, allowing appellant to use his
surname in her scholastic and other records (Exhs Z, AA, AA-1 to AA-5, W &
W-5)
3) Such recognition has been consistently shown and manifested throughout
the years publicly,[35] spontaneously, continuously and in an uninterrupted
manner.[36]
Accordingly, in light of the totality of the evidence on record, the second
assigned error must fail.
There is some merit, however, in the third assigned error against the
probative value of some of MONINAs documentary evidence.
MONINAs reliance on the certification issued by the Local Civil Registrar
concerning her birth (Exhs. E and F) is clearly misplaced. It is settled that a
certificate of live birth purportedly identifying the putative father is not
competent evidence as to the issue of paternity, when there is no showing
that the putative father had a hand in the preparation of said certificates, and
the Local Civil Registrar is devoid of authority to record the paternity of an
illegitimate child upon the information of a third person.[37] Simply put, if the
alleged father did not intervene in the birth certificate, e.g., supplying the
information himself, the inscription of his name by the mother or doctor or
registrar is null and void; the mere certificate by the registrar without the
signature of the father is not proof of voluntary acknowledgment on the
latters part.[38] In like manner, FRANCISCOs lack of participation in the
preparation of the baptismal certificates (Exhs. C and D) and school records

(Exhs. Z and AA) renders these documents incompetent to prove paternity,

the former being competent merely to prove the administration of the
sacrament of baptism on the date so specified.[39] However, despite the
inadmissibility of the school records per se to prove paternity, they may be
admitted as part of MONINAs testimony to corroborate her claim that
FRANCISCO spent for her education.
We likewise disagree with the ruling of the Court of Appeals that the
certificates issued by the Local Civil Registrar and the baptismal certificates
may be taken as circumstantial evidence to prove MONINAs filiation. Since
they are per se inadmissible in evidence as proof of such filiation, they
cannot be admitted indirectly as circumstantial evidence to prove the same.
As to Exhibits S, T, U and V, the various notes and letters written by
FRANCISCOs relatives, namely Mike Alano, Emilio Jison, Mariquit Lopez and
Fernando Lopez, respectively, allegedly attesting to MONINAs filiation, while
their due execution and authenticity are not in issue,[40] as MONINA
witnessed the authors signing the documents, nevertheless, under Rule 130,
Section 39, the contents of these documents may not be admitted, there
being no showing that the declarants-authors were dead or unable to testify,
neither was the relationship between the declarants and MONINA shown by
evidence other than the documents in question.[41] As to the admissibility of
these documents under Rule 130, Section 40, however, this requires further
elaboration.
Rule 130, Section 40, provides:
Section 40. Family reputation or tradition regarding pedigree. -- The
reputation or tradition existing in a family previous to the controversy, in
respect to the pedigree of any one of its members, may be received in
evidence if the witness testifying thereon be also a member of the family,
either by consanguinity or affinity. Entries in family bibles or other family
books or charts, engravings on rings, family portraits and the like, may be
received as evidence of pedigree. (underscoring supplied)
It is evident that this provision may be divided into two (2) parts: the
portion containing the first underscored clause which pertains to testimonial
evidence, under which the documents in question may not be admitted as
the authors thereof did not take the witness stand; and the section containing
the second underscored phrase. What must then be ascertained is whether
Exhibits S to V, as private documents, fall within the scope of the clause and
the like as qualified by the preceding phrase [e]ntries in family bibles or other
family books or charts, engravings on rights [and] family portraits.
We hold that the scope of the enumeration contained in the second
portion of this provision, in light of the rule of ejusdem generis, is limited to
objects which are commonly known as family possessions, or those articles
which represent, in effect, a familys joint statement of its belief as to the
pedigree of a person.[42] These have been described as objects openly
exhibited and well known to the family,[43] or those which, if preserved in a
family, may be regarded as giving a family tradition.[44] Other examples of
these objects which are regarded as reflective of a familys reputation or
tradition regarding pedigree are inscriptions on tombstones,[45] monuments

or coffin plates.[46]
Plainly then, Exhibits S to V, as private documents not constituting
"family possessions" as discussed above, may not be admitted on the basis
of Rule 130, Section 40. Neither may these exhibits be admitted on the basis
of Rule 130, Section 41 regarding common reputation,[47] it having been
observed that:
[T]he weight of authority appears to be in favor of the theory that it is the
general repute, the common reputation in the family, and not the common
reputation in community, that is a material element of evidence going to
establish pedigree. xxx [Thus] matters of pedigree may be proved by
reputation in the family, and not by reputation in the neighborhood or
vicinity, except where the pedigree in question is marriage which may be
proved by common reputation in the community.[48]
Their inadmissibility notwithstanding, Exhibits S to V, inclusive, may, in
like manner as MONINA's school records, properly be admitted as part of her
testimony to strengthen her claim that, indeed, relatives of FRANCISCO
recognized her as his daughter.
We now direct our attention to MONINAs 21 September 1971 affidavit
(Exh. P/Exh. 2), subject of the fourth assigned error, where she attests that
FRANCISCO is not her father.MONINA contends that she signed it under
duress, i.e., she was jobless, had no savings and needed the money to
support herself and finish her studies. Moreover, she signed Exhibit P upon
the advice of Atty. Divinagracia that filiation could not be waived and that
FRANCISCOs ploy would boomerang upon him. On the other hand,
FRANCISCO asserts that full credence should be afforded Exhibit P as MONINA
was already 25 years old at the time of its execution and was advised by
counsel; further, being a notarized document, its genuineness and due
execution could not be questioned. He relies on the testimony of Jose Cruz, a
partner at the accounting firm of Miller & Cruz, who declared that he
intervened in the matter as MONINA was spreading rumors about her filiation
within the firm, which might have had deleterious effects upon the
relationship between the firm and FRANCISCO.
On this issue, we find for MONINA and agree with the following
observations of the Court of Appeals:
Even the affidavit (Exh 2) which [FRANCISCO] had foisted on the trial court
xxx does not hold sway in the face of [MONINAs] logical explanation that she
at first did agree to sign the affidavit which contained untruthful
statements. In fact, she promptly complained to [FRANCISCO] who, however
explained to her that the affidavit was only for the consumption of his spouse
xxx.
At any rate, if [MONINA] were not his illegitimate daughter, it would have
been uncalled for, if not absurd, for [FRANCISCO] or his lawyer to have
secured [MONINAs] sworn statement xxx On the contrary, in asking [MONINA]
to sign the said affidavit at the cost of P15,000, [FRANCISCO] clearly betrayed
his intention to conceal or suppress his paternity of [MONINA]. xxx
Indeed, if MONINA were truly not FRANCISCOs illegitimate daughter, it

would have been unnecessary for him to have gone to such great lengths in
order that MONINA denounce her filiation. For as clearly established before
the trial court and properly appreciated by the Court of Appeals, MONINA had
resigned from Miller & Cruz five (5) months prior to the execution of the
sworn statement in question, hence negating FRANCISCOs theory of the need
to quash rumors circulating within Miller & Cruz regarding the identity of
MONINAs father. Hence, coupled with the assessment of the credibility of the
testimonial evidence of the parties discussed above, it is evident that the
standard to contradict a notarial document, i.e., clear and convincing
evidence and more than merely preponderant,[49] has been met by MONINA.
Plainly then, the burden of evidence fully shifted to FRANCISCO.
Two (2) glaring points in FRANCISCOs defense beg to be addressed: First,
that his testimony was comprised of mere denials, rife with bare,
unsubstantiated responses such as That is not true, I do not believe that, or
None that I know. In declining then to lend credence to FRANCISCOs
testimony, we resort to a guiding principle in adjudging the credibility of a
witness and the truthfulness of his statements, laid down as early as 1921:
The experience of courts and the general observation of humanity teach us
that the natural limitations of our inventive faculties are such that if a witness
undertakes to fabricate and deliver in court a false narrative containing
numerous details, he is almost certain to fall into fatal inconsistencies, to
make statements which can be readily refuted, or to expose in his demeanor
the falsity of his message.
For this reason it will be found that perjurers usually confine themselves to
the incidents immediately related to the principal fact about which they
testify, and when asked about collateral facts by which their truthfulness
could be tested, their answers not infrequently take the stereotyped form of
such expressions as I dont know or I dont remember. xxx[50]
Second, the reasons for the dismissals of Tingson, Baylosis and Savariz
were unspecified or likewise unsubstantiated, hence FRANCISCOs attempt to
prove ill-motive on their part to falsely testify in MONINAs favor may not
succeed. As may be gleaned, the only detail which FRANCISCO could furnish
as to the circumstances surrounding the dismissals of his former employees
was that Baylosis allegedly took advantage of his position while FRANCISCO
was in the United States. But aside from this bare claim, FRANCISCOs account
is barren, hence unable to provide the basis for a finding of bias against
FRANCISCO on the part of his former employees.
As to FRANCISCOs other witnesses, nothing substantial could be
obtained either. Nonito Jalandoni avowed that he only came to know of
MONINA in June 1988;[51] that during his employment at Nelly Garden from
1963 up to 1974, he did not recall ever having seen MONINA there, neither
did he know of any instructions from FRANCISCO nor Mr. Lagarto
(FRANCISCOs office manager before passing away) regarding the
disbursement of MONINAs allowance.[52] Teodoro Zulla corroborated
Jalandonis testimony regarding not having seen MONINA at Nelly Garden and
MONINAs allowance; declared that Alfredo Baylosis was dismissed due to
discrepancies discovered after an audit, without any further elaboration,
however;but admitted that he never prepared the vouchers pertaining to

FRANCISCOs personal expenses, merely those intended for one of

FRANCISCOs haciendas.[53] Then, Iigo Superticioso confirmed that according
to the report of a certain Mr. Atienza, Baylosis was dismissed by Mr. Jison for
irregularities, while Superticioso was informed by FRANCISCO that Tingson
was dismissed for loss of confidence. Superticioso likewise denied that
MONINA received money from FRANCISCOs office, neither was there a
standing order from FRANCISCO to release funds to her.[54]
It is at once obvious that the testimonies of these witnesses for
FRANCISCO are likewise insufficient to overcome MONINAs evidence. The
former merely consist of denials as regards the latters having gone to Nelly
Garden or having received her allowance from FRANCISCOs office, which,
being in the form of negative testimony, necessarily stand infirm as against
positive testimony;[55] bare assertions as regards the dismissal of
Baylosis; ignorance of FRANCISCOs personal expenses incapable of evincing
that FRANCISCO did not provide MONINA with an allowance; or hearsay
evidence as regards the cause for the dismissals of Baylosis and Tingson. But
what then serves as the coup de grce is that despite Superticiosos claim that
he did not know MONINA,[56] when confronted with Exhibit H, a telephone
toll ticket indicating that on 18 May 1971, MONINA called a certain Eing at
FRANCISCOs office, Superticioso admitted that his nickname was Iing and
that there was no other person named Iing in FRANCISCOs office.[57]
All told, MONINAs evidence hurdled the high standard of proof required
for the success of an action to establish ones illegitimate filiation when
relying upon the provisions regarding open and continuous possession or any
other means allowed by the Rules of Court and special laws; moreover,
MONINA proved her filiation by more than mere preponderance of evidence.
The last assigned error concerning laches likewise fails to convince. The
essential elements of laches are: (1) conduct on the part of the defendant, or
of one under whom he claims, giving rise to the situation of which the
complaint seeks a remedy; (2) delay in asserting the complainants rights, the
complainant having had knowledge or notice of the defendants conduct as
having been afforded an opportunity to institute a suit; (3) lack of knowledge
or notice on the part of the defendant that the complaint would assert the
right in which he bases his suit; and (4) injury or prejudice to the defendant in
the event relief is accorded to the complainant, or the suit is not held barred.
[58] The last element is the origin of the doctrine that stale demands apply
only where by reason of the lapse of time it would be inequitable to allow a
party to enforce his legal rights.[59]
As FRANCISCO set up laches as an affirmative defense, it was incumbent
upon him to prove the existence of its elements. However, he only succeeded
in showing MONINAs delay in asserting her claim, but miserably failed to
prove the last element. In any event, it must be stressed that laches is based
upon grounds of public policy which requires, for the peace of society, the
discouragement of stale claims, and is principally a question of the inequity
or unfairness of permitting a right or claim to be enforced or asserted. There
is no absolute rule as to what constitutes laches; each case is to be
determined according to its particular circumstances. The question of laches
is addressed to the sound discretion of the court, and since it is an equitable
doctrine, its application is controlled by equitable considerations. It cannot be

worked to defeat justice or to perpetuate fraud and injustice.[60] Since the

instant case involves paternity and filiation, even if illegitimate, MONINA filed
her action well within the period granted her by a positive provision of law. A
denial then of her action on ground of laches would clearly be inequitable and
unjust.
WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby
DENIED and the challenged decision of the Court of Appeals of 27 April 1995
in CA-G.R. CV No. 32860 is AFFIRMED.
Costs against petitioner.
SO ORDERED.

G.R. No. L-12993

October 28, 1918

RAFAEL
J.
FERRER,
ET
AL., plaintiff-appellants,
vs.
JOAQUIN J. DE INCHAUSTI, ET AL., defendants-appellees.
Vicente
Sotto
Araneta & Zaragoza and Cohn & Fisher

for

appellants.

TORRES, J.:
This appeal was taken through bill of exceptions by counsel for the plaintiffs
from the judgment of February 12, 1917, whereby the judge of the Court of
First Instance held that Rosa Viademonte, mother of the plaintiffs, could not
have been legitimate daughter of the deceased Isabel Gonzalez, who, on her
death, left some legitimate children. The court did not deem it necessary to
discuss whether the said Rosa Viademonte could be a daughter of the said
Isabel Gonzalez for reason, given in his decision, and held that the plaintiffs
should not be entitled to what they have demanded, and that they should
pay the costs.
Under date of May 12, 1916, the attorney of Rafael J. Ferrer y Viademonte
and Maria Angelina Ferrer y Viademonte with her husband Ricardo Hernandez
y Aracil filed a complaint in the Court of First Instance of the city of Manila,
praying for the rendition of a final judgment declaring that Rosa Matilde
Viademonte y Gonzalez had the right to succeed to the inheritance left by
Isabel Gonzalez in the same proportion and capacity as the other four
children of the latter, namely, Ramon Viademonte, Rafael C. de Inchausti,
Joaquin C. de Inchausti, and Clotilde de Inchausti de Vidal; that the plaintiffs
Rafael and Maria Angelina Ferrer are the only and legitimate heirs of the
deceased Rosa Viademonte and the only ones entitled to receive her share of
the inheritance left by Isabel Gonzalez, that is, the on-fifth part of the latter's
estate; that the defendants render to the plaintiffs an account of the fruits
and administration of all the property from the moment the said community
of property from the moment the said community of property was constituted
among them, and to deliver to the plaintiffs that part which corresponds to
them in their capacity as sole heirs of Rosa Viademonte y Gonzalez, that is,
the one-fifth part of the inheritance with all its accession, fruits, and interests;
and , finally, that the defendants pay the costs. In fact, it is alleged that the

plaintiffs are the legitimate children of Rosa Matilde Viademonte , who in turn
died on November 20, 1898, leaving the two plaintiffs as surviving legitimate
children that the said Isabel Gonzalez was married, first to Ramon Martinez
Viademonte, and from his marriage two children, named Roman and Rosa
Matilde, and surnamed Viademonte y Gonzalez survived; that after the death
of her husband Ramon Martinez Viademonte, Sr., the widow, Isabel Gonzalez,
contracted a second marriage with Don Jose Joaquin de Inchausti with whom
she had three children named Clotilde, Rafael and Joaquin, all surnamed
Inchausti y Gonzalez, that Ramon Viademonte y Gonzalez Jr., died on January
1, 1905, without leaving any forced heir, and by a will dated May 216, 1900,
he left his property to the son or sons which Rafael C. de Inchausti might
have, and in default or such child or children, to the same Rafael C. de
Inchausti, by a will, left as his heirs and successors in interest his legitimate
son Jose R. de Inchausti, his recognized natural daughter Maria Consolacion
de Inchausti de Ortigas, and his widow Maria Consolacion Rico y Medina; that
on her death, Isabel Gonzalez left a certain property in her marriage with Jose
de Joaquin de Inchausti, which would amount approximately to P1,000,000
with its accessions, according to present valuation, as shown by the inventory
of said property which makes up Exhibit A, that on January 14, 188, Jose
Joaquin Inchausti y Gonzalez and Clotilde de Inchausti y Gonzalez de Vidal,
each of whom received on-fourth of the estate left by the deceased Isabel
Gonzalez, excluding therefrom Rosa Viademonte, the mother of the plaintiffs.,
notwithstanding the fact that she had an equal rights to inherit from Isabel
Gonzalez; that since January 188 till his death, Ramon Viademonte, Jr. had
been the possessor and administrator of the fourth part of the inheritance
which he received from his deceased mother Isabel Gonzalez which portion of
the property later came to the possession and control of Rafael C. de
Inchausti, and on the death of the latter, this fourth part of the inheritance
came to the possession of Maria Consolacion Rico de Inchausti, widow of said
Rafael C. de Inchausti, in her capacity as guardian of her son Jose Rafael de
Inchausti, and part of it, to the possession of Maric Consolacion de Inchausti
de Ortigas; and that a great part of the property which the defendants actual
possess, came from the young children, who received from Isabel Gonzalez
with the earnings and accessions thereof; these children have been
possessing it pro indiviso or in coownership, in their lifetime, with Rosa
Viademonte while living, and upon the death of the latter, with her heirs, but
that, in spite of the demands made by the plaintiffs for the delivery to them
by the defendants of their corresponding share in the inheritance the latter
have always refused to do so.
In his answers, for Clotilde Inchausti de Vial admitted that the plaintiffs are
the children of Rosa viademonte and Benigno Ferrer; that Isabel Gonzalez
was married first o Ramon Martinez de Viademonte, and afterwards to Jose
Joaquin de Inchausti; that on the death of her mother Isabel Gonzalez, on
December 13, 1886, her share in the conjugal partnership amounted to P191,
248.81, and on January 14, 1888, Jose Joaquin de Inchausti, as executor of his
wife, after paying the legacies mentioned in the testament, paid to this
defendant in cash the sum of P46,295.70 as her hereditary portion in the
liquidated property of her mother, and likewise delivered to the other three
sons of said Isabel Gonzalez similar amounts; that, after receiving her share
of the inheritance from her mother, she spent it all, and she no longer has
any part of it, nor has she left any portion of it during the last thirty years,
and that neither the plaintiffs nor their deceased mother had ever possessed
or enjoyed the said sum; and denies generally all the allegations of the
complaint which are not admitted, and denies specially the allegation that

the mother of the plaintiffs had ever married with their father Benigno Ferre,
that they and their mother ever had the surname of Viademonte or
Viademonte y Gonzalez and that the mother of the plaintiffs was a daughter
of Isabel Gonzalez.
As a special defense, she alleged that her possession of the money derived
from the inheritance of her mother had been public, adverse, pacific,
continuous and under a claim of ownership, in good faith and with just title,
since January 14, 1888; that never during the lifetime of the plaintiff's mother
did she make any claim or assert any right in the amount received by this
defendant form the inheritance of her deceased mother; that more than
thirty years had elapsed since she received by this defendant inheritance of
her deceased mother; and that the action for the plaintiffs has already
prescribed in accordance with the provisions of article 1955 of the Civil Code
and section 38 of the Code of Civil Procedure they (the plaintiffs) and their
mother ever had the surname of "Viademonte" or Viademonte y Gonzalez,"
and that the mother of the plaintiffs was a daughter of Isabel Gonzalez.
As a special defense, she alleged that her possession of the money derived
from the inheritance of her mother had been public, adverse, pacific,
continuous, and under a claim of ownership, in good faith and with just title,
since January 14, 1888; that never during the lifetime of the plaintiffs' mother
did she (plaintiff's mother) make any claim or assert any right in the amount
received by this defendant from the inheritance of her deceased mother; that
more than thirty years had elapsed since she received said amount to the
date of the presentation of the complaint; and that the action of the plaintiff
has already prescribed in accordance with the provisions of article 1955 of
the Civil Code and section 38 of the Code of Civil procedure.
Counsel for Maria de la Consolacion de Inchausti, in turn, set up a special
defense similar to that of Clotilde, and alleged that Ramon Martinez
Viademonte, son of Isabel Gonzalez, died in the city of Manila on January 1,
1905, without leaving any heirs, and bequeathed by will to his brother Rafael
C. de Inchausti, father of this defendant, all of his property, with the
exception of some property of little importance which he had bequeathed to
others; but denied that any part of his (Ramon Maritnez Viademonte's)
property thas ever been bequeathed to the children of said Rafael C. de
Inchausti; that, on the death of said Ramon Martinez de Viademonte, his will
was allowed to probate in the Court of First Instance of Manila, and all his
remaining property delivered to Rafael C. de Inchausti with Martinez
Viademonte's property received by her father Rafael C. de Inchausti was a
small piece of land situated in Santa Ana and known by the name of
Hacienda de Lamayan; that the title of Rafael C. De Inchausti to said land was
registered by virtue of a decree of the Court of Land Registration, in
accordance with the provisions of the Land Registration Ac; that said land
was in turn inherited by this defendant from her father upon the death of the
latter, and that she appears in the registry of property as owner of the same;
that, upon the allowance of said will in the Court of First Instance of this city,
the plaintiffs did not present any claim to the commissioners appointed to
appraise the property, and that the period allowed for the presentation of
such claims expired on October 20, 1914, and that, therefor, the action now
filed by the plaintiffs has prescribed, in accordance with the provisions of
section 695 of the Code of Civil Procedure. In similar terms, counsel for
Joaquin C. de Inchausti worded his defense in a written answer as amended
under date of September 19, 1916.1awph!l.net

Counsel for Maria de la Consolacion Rico y Medina in her personal capacity an

das a widow of Rafael Inchausti and also as guardian of her son Jose Rafael
de Inchausti y Rico, in his answer to the foregoing complaint, admits that
Ramon Martinez and Isabel Gonzalez Ferrer, both now deceased, were in their
lifetime husband and wife, and were survived by a child named Ramon
Martinez Viademonte y Gonzalez, but denied that the said Rosa Matilde was a
daughter of that marriage or of any of the said spouses; he also admits that
the deceased Ramon Martinez Viademonte, Jr., died in this city on January 1,
1905, without leaving any forced heir, and by a will dated May 16, 1900, he
left to his maternal brother Rafael C. de Inchausti husband of this defendant,
all his property with the exception of some small legacies, denying at the
same time that any portion of the inheritance of said Ramon Viademonte, Jr.,
had been left to the children of the defendant's husband; that Isabel
Gonzalez Ferrer, the mother of her husband, who died on December 13,
1886, executed a will on April 29 of the said year, wherein she declared that
she had a son with her first husband Ramon Martinez Viademonte, and the
name of said on son was also Ramon, and that with her second husband Jose
Joaquin de Inchausti. She Counsel for Maria de la Consolacion Rico y Medina
in her personal capacity and a widow of Rafael Inchausti and also as guardian
of her son Jose Rafael de Inchausti y Rico, in his answer to the foregoing
complaint, admits that Ramon Martinez and Isabel Gonzalez Ferre, both now
deceased were in their lifetime husband and wife, and were survived by a
child named Ramon Martinez Viademonte y Gonzalez but denied that the said
Rosa Matilde was a daughter of that marriage or of any of the said spouses;
he also admits that the deceased Ramon Martinez Viademonte, Jr., died in
this city on January 1905, without leaving any forced heir, and by a will dated
May 165, 1900, he left to his maternal brother Rafael C. de Inchausti,
husband of this defendant, all his property with the exception of some small
legacies, denying at the same time that any portion of the inheritance of said
Ramon Viademonte, Jr., had been left to the children of the defendant's
husband, who died on December 13, 1886, executed a will on April 29 of the
said year, wherein she declared that she had some with her first husband
Ramon Martinez Viademonte and the name of said son was also Ramon, and
that with her second husband Jose Joaquin de Inchausti, she had three
children, and he instituted the said four children as the sole and universal
heirs to the remainder of her property in equal parts, her property being the
one half of the conjugal property had during her marriage with her second
husband Inchausti who had survived her; that no portion of the inheritance
from the deceased Isabel Gonzalez y Ferrer was adjudicated to the mother of
the plaintiffs; that the deceased Rafael C. de Inchausti inherited from the said
Ramon Martinez Viademonte, Jr., a parcel of land known by the name of
Hacienda de Lamayan, registered in the name of the deceased Rafael de
Inchausti, which property was, in turn, inherited by the defendant Maria
Consolacion de Inchausti de Ortigas. As a special defense, she alleged that in
the said will wherein the testatrix Isabel Gonzalez name d her sole and
universal heirs, Rosa Matilde, the mother of the plaintiffs, was not designated
a heiress or legatee, but on the contrary, was omitted therefrom, that from
the death of the testratrix of this compliant neither Rosa Matilde nor the
plaintiffs presented any claim whatsoever against the omission of Rosa
Matilde from the will of said Isabel Gonzalez for the plaintiffs could have
availed themselves of any right which Rosa Matilde could have had in the
property inherited by the defendant and her son Jose Rafael de Inchausti,
derived by law for contesting the will of Isabel Gonzalez on the ground of
prejudicial omission therefrom of Rosa Matilde expired long before the date

on which this compliant was filed; and consequently, said action has
prescribed; that, after the death of Ramon Viademonte, Jr., in February 1905,
probate proceedings were had in the Court of First Instance of Manila, an
administrator of the decedent's estate was appointed, on July 21 of said year
the commissioners to appraise the estate of the deceased were appointed,
and after the lapse of the period fixed for allowing claims against the state,
the property of the deceased was adjudicated to his heir Rafael C. de
Inchausti and to the legatees, the plaintiffs not having presented to the
commissioners, any claim against the estate of said deceased has thus
prescribed by the lapse of the period for its presentation, that after the death
of Rafael C. de Inchausti, on October 5, 1913, probate proceedings were had
regarding his will in the Court of First Instance of the city, an executor was
appointed, as well as the commissioners to appraise the estate, and the
period within which claims against he estate might be received has expired,
and the plaitniffs have not presented any claim whatsoever against he estate
of said Rafael C. de Inchausti, and finally, she alleged that he period fixed by
law for presenting claims against he estate of said Rafael C. de Inchausti
expired long before the date of the filing of this complaint, and consequently,
the action to assert the claim has already prescribed, and that therefore the
defendant should be absolved from the complaint with the costs against the
plaintiffs.
Counsel for the plaintiffs, in his written reply amending his replies of
September 20 and 21, 1916, denied generally and specifically each and all of
the new facts alleged in the answers of the defendants, and added that the
will of Isabel Gonzalez, dated October 12, 1886, is null and void, inasmuch as
Rosa Viademonte Gonzalez and having equal rights as her other children;
that he defendants are estopped form denying that the surname of Rosa
Matilde was a daughter of Isabel Gonzalez with Ramon Martinez Viademonte;
that the plaintiffs are legitimate children of said Rosa Matilde with Benigno
Ferre inasmuch as both their predecessors in interest as well as the present
defendants have previously made declarations and formal affirmations,
written and oral, recognizing that the surname of Rosa Matilde was
Viademonte y Gonzalez, that the same was legitimate daughter of Isabel
Gonzalez and Ramon Martinez Viademonte and that the plaintiffs are
legitimate children of Rosa Viademonte y Gonzalez with Benigno Ferrer.
The trial having been held and the evidence of both parties adduced, the trial
judge, on February 12, 1917, rendered a judgment declaring that the
plaintiffs receive nothing in this action and pay the costs. To this decision the
plaintiffs excepted and moved for a new trial, which motion was denied by
order of the court on the 27th day of the same month and year. An exception
was taken to the order denying the motion for a new trial, and the
corresponding bill of exception was presented, approved, certified, and
forwarded to the office of the clerk of this court.
The parties are agreed as regard the allegations that the plaintiffs Rafael J.
Ferrer and Maria Angelina Ferrer are children of the deceased Rosa Matilde
Viademonte, although the defendants deny that they (plaintiffs) were
legitimate children of their mother contrary to the affirmation of the plaintiffs
to this effect. The evidence of record concerning this point is of such a
character that it is difficult to deduce therefrom a certain and definite
conclusion, because, while it appears that Rosa Matilde Viademonte has, on
various occasions, stated that she was unmarried and never contracted a
marriage, she has made entirely different statements on other occassions. In
the proceedings (Exhibit 8) instituted by the said Rosa Matilde against Rafael

C. de Inchausti, it was disclosed that she had never been married and that if
her children with Benigno Ferrer were baptized as legitimate children, it was
so done in order to conceal her dishonor, such statement being found in a
document drawn in 1892 and signed by her (Exhibit 8, pp. 3-4). On page 159
of the records of the said proceedings (Exhibit 8) it appears that said Rosa
Matilde stated under oath before a judge, on January 21. 1893, that she had
never married, and the same declaration was made by her on April 15th of
the same year in another case. (Exhibit 7, pp. 17-26.)

Legitimate filiation presupposes the existence of marriage contracted by the

presumed parents in accordance with law, and therefore a person can not be
declared to be a legitimate daughter of her mother, without presuming at the
same time that she was born in the marriage of this mother with the
presumed father, who, in his lifetime, and without his consent, could not have
been considered as father of a child that was not conceived by his own wife,
because the mere fact of having used his surname after his death, without
his assent or consent, does not constitute a proof of filiation of parternity.

In a document found on page 166 of said Exhibit 8, executed in 1890, Rosa

Matilde stated that she was a widow; but, in a document executed in 1893,
found on page 257 of Exhibit 8, and in a document (Exhibit 1, page 136 of
the first document executed in 1894) she made the statement that she was
unmarried. Rosa Matilde might have made these contradictions due perhaps
to her extreme poverty, which had prompted her to tell a lie before the courts
of justice, with the sole purpose of recovering the amount claimed by her as
her legacy, while, on the hand, it is undeniable that she could not duly justify
the marriage contracted by her with Benigno Ferrer.

In this decision it is to be determined whether Rosa Matilde was born in the

lifetime of Ramon Martinez de viademonte to decide on the truth of the
assertion made by the plaintiffs that their predecessor in interest was a
legitimate daughter of the said spouses Viademonte and Gonzalez.

Even if the plaintiffs be considered as legitimate children of Rosa Matilde,

Viademonte in her marriage with Benigno Ferrer, still this action filed by them
will not prosper, inasmuch as the evidence adduced at the trial to prove the
origin of the cause of action referred to shows, in a manner which leaves no
room for doubt that Rosa Matilde was not a legitimate daughter of Isabel
Gonzalez, and it follows that her children as well as her privies have no right
to a part of the hereditary property of said Isabel Gonzalez.
Counsel for plaintiffs pretend to establish that Rosa Matilde Viademonte had
been treated and considered as a daughter by Isabel Gonzalez, and as a
sister the children of the latter; that, on one occasion, said Gonzalez
remarked that the father of Rosa Matilde was Ramon Martinez de
Viademonte; that Joaquin Matilde in the following manner: "To my dear and
unforgettable sister Rosa." that when Rosa Matilde entered the College de la
Compania de Jesus, her name as recorded in the registry of that college was
Rosa Matilde Viademonte, and her expenses were defrayed by Rafael de
Inchausti and in the same registry said Rafael de Inchausti appears as
brother of Rosa; that when Rosa entered the Colegio de Santa Isabel, she
used the same name and surname; that Ramon Martinez de Viademonte, Jr.,
presented Rosa Matilde also sister, saying that the father of the same was
also his father named Ramon Martinez de Viademonte, while Rosa Matilde
has always been known by the same name and surname during the time she
was studying in the Colegio de Luisa Oda de Birgi; that Clotilde de Inchausti
called Rosa Matilde her sister in her letters to Rafael Ripol, and that Joaquin
de Inchausti himself in the codicil of his testament designates Rosa Matilde
with the surname of Viademonte.
From all the evidence adduced, the slightest indication cannot be inferred
that Rosa Matilde was born during the marriage of Ramon Martinez de
Viademonte, Sr., with Isabel Gonzalez or within the 300 days after the
dissolution of their marriage by the death of the husband, nor has the said
Ramon Martinez de Viademonte, Sr., in his lifetime recognized said Rosa
Matilde as his daughter. If Rosa Matilde is a legitimate daughter of Isabel
Gonzalez, it follows that she was also a daughter of Isabel's husband, Ramon
Martinez de Viademonte, under the assumption that she was born in the
marriage of both or at a time prior or subsequent to that of the celebration of
the marriage, as fixed by law. (Arts. 119, 120, 121, and 122 of the Civil Code.)

At the trial, the death certificate of Ramon Martinez de Viademonte, first

husband of Isabel Gonzalez, was not presented in evidence; but it is
uncontroverted that he died on September 30, 1836; as corroborated by the
accountant of the naval division of Puerto Galkera in charge of the Leiutenant
of the Spanish Navy, Jose Atienza, saying that the Lieutenant, who had the
rank of captain in the navy, Ramon Viademonte, died on September 30,
1836, as appears in the list of officers found in the payroll under his custody,
having paid till the date of the death of said Viademonte all his salaries
corresponding to him as such officer, and further saying that, by request of
the widow of the deceased, he issued the proper certificate on December 31,
1836.
So certain is the death of said Ramon Martinez de Viademonte that his widow
Isabel Gonzalez on January 31, 1837, applied to the Government for a
pension sufficient to cover her widowhood expenses, alleging that she was a
widow with children of the deceased. The application was made in a paper
stamped as of the years 1836 and 1837, a fact which proves the authenticity
of the document written in a stamped paper, and the presentation of said
application by the widow demonstrates the fact that her husband really died,
wherefore she asked for a pension, because she would have been held
responsible if, in truth and in fact, her husband had been living and not dead
as she claimed.
The said documents, as constituting a supplementary proof of the death of
the deceased Ramon Martinez, de Viademonte, appear to be corroborated by
an entry in a notebook belonging to Ramon Viademonte, Jr. wherein it is
stated that his mother was married in 1833 to Ramon Martinez de
Viademonte who died on September 30, 1836, at the age of 33 years, being
then a major in the naval division assigned at Puerto Galera, Mindoro.
Notwithstanding the fact that the death certificate of said Ramon Martinez de
Viademonte, first husband of Isabel Gonzalez was not presented in evidence,
still the documentary and circumstantial evidence of record, especially the
fact of the marriage of his widow Isabel Gonzalez with Jose Joaquin de
Inchausti, some years after the death of Viademonte died before that
marriage or on September 30. 1836. If this be true, let us see on what day
Rosa Matilde was born,, and in this way it will be shown that she did not have
the status of a legitimate child of those spouses, even after the dissolution of
their marriage by the death of the husband.
It appears in the certificate that on September 1, 1852, a child three days
old, born of unknown parents, was baptized in the Cathedral Church of this
city, and given the name of Rosa Matilde Robles. In view of the fact that the

plaintiffs have not shown that such baptismal certificate was not that of their
mother Rosa Matilde, it remains proven therefore that said certificate was
presented as exhibit by Rafael C. de Inchausti in a case concerning the
delivery of a legacy instituted against Rosa Matilde, who, instead of denying
that such a baptismal certificate referred to her, admitted that such
certificate might have been hers.
On Page 9 of the day-book which Ramon Martinez de Viademonte, Jr., kept
during his lifetime, appears a memorandum which says: On September 1,
1862, seven o'clock in the evening a children three days old named Rosa
Matilde Robles, according to the baptismal certificate issued by the acting
rector Don Ramon Fernandez of the Cathedral Church of Manila, was
delivered to my mother; this child was baptized by the priest Don Remegio
Rodriguez with the authority of said rector, and according to the baptismal
certificate, it was a child of unknown parents." This memorandum agrees with
the above-mentioned baptismal certificate of Rosa Matilde Robles.
Notwithstanding the argument of counsel for the appellants Joaquin de
Inchausti stated that one day he was assured by his half-brother Ramon
Martinez Viademonte that Rosa Matilde was not his sister, but that she was
only a mere protegee and that her true name was Rosa Matilde Robles, and
that on that occasion the said brother showed him the certificate of birth of
which Exhibit 6 is a copy, which he took from the parochial church.
In view of the fact that Ramon Martinez Viademonte is now dead, the
testimony of Joaquin Jose de Inchausti referring to the said deceased is
admissible, for they are members of the same family, in accordance with the
provisions of section 281 of Act No. 190, and consequently, the conclusion is
that Rosa Matilde is the same Rosa Matilde Robels which is mentioned in
Exhibit 6 and because she was born in 1852, in no manner could her be
legitimate daughter of Ramon Viademonte and Isabel Gonzalez whose
marriage was dissolved in 18365 by the death of the husband. Moreover, the
witness Pilar Abarca presented by the plaintiffs testified that she had known
Rosa Matilde in the Colegio de Santa Isabel in 1863, she being then 20 years
old and Rosa, 9 years. If the witness Abarca was 73 years old on the date of
giving this testimony in 1916, it follows that Rosa Matilde was born in 1854,
and that therefore she could not be a daughter of Ramon Martinez de
Viademonte who died in 1836.
Notwithstanding the attempt of the plaintiffs to impugn the testimony of said
witness, said testimony is admissible according to section 263 of the Code of
civil Procedure which provides the when part of an act, declaration
conservation, or writing is given in evidence by one party, the whole of the
same subject may be inquired into by the other. It is true that the said
witness was not presented to prove that the date of Rosa Matildes birth but
the fact is that the age of the child is 9 years old as well as that of a youth 19
or 22 years of age can be known from the appearance of the child, and even
if, in fixing the age of Rosa Matilde, as mistake has been made, said mistake
could not be such as to reduce her true age by 10 years; but even then and
even supposing still that Rosa Matilde was 20 years old in 1863, the fact
remains that she must have been born in 1843, and so she could not have
been a daughter of Ramon Martinez de Viademonte, Sr. that the age of a
child 9 years old as well as that of a youth 19 or 22 years of age can be
known from the appearance of the child, and even if, in fixing the age of Rosa
Matilde, a mistake has been made, said mistake could not be such as to
reduce her true age by 10 years; but even then and even supposing still that

Rosa Matilde was 20 years old in 1863, the fact remains that she must have
been born in 1843, and so could not have been a daugther of Ramon
Martinez de Viademonte, Sr.
Juan Ferrer, another witness for the plaintiffs, testified that Benigno Ferrer
and Rosa Matilde married in 1872, that Rosa Matilde must have been then
between 22 and 30 years of age. It is inferred from this testimony that, if
Rosa Matilde could no be over 30 years old in 1872, she could not have been
born before 1842, and much less in 1836 or 1837.
The document No. 663, page 257 of Exhibit 8, appears to have been
executed by Rosa Matilde in 1893, wherein she declared to the notary public
before whom the document was executed that she was then 39 years of age.
If she was 39 years old in 1893, she could not have been born in 1854 and
much less in 1836 and 1837.
In Exhibit 1, page 135, which is a certified copy of a discharge in full executed
by Rosa Matilde in 1894 in favor of Joaquin Jose de Inchausti, it is said that
the maker of the deed was 40 years old, thus corroborating ina convincing
manner what has been stated regarding this point in the preceding
document.
In view of the objection and arguments made by counsel for the plaintiffs
against the admission of the aforementioned documents, it becomes
necessary to say in this connection that it is undeniable that Rosa Matilde, in
executing said two documents, gave as her age those appearing therein, and
that there was no reason for the belief that she told a lie and tried to conceal
her true age; but, even admitting that we had made a mistake by telling that
she was older or younger than she really was, such a mistake could not have
given a difference of 10 years from her true age, inasmuch as she was an
educated person, and it is not possible to believe that, through ignorance,
she gave an age difference from her true anger; and, even if 10 years be
added to the age given by Rosa Matilde in the documents referred to, still the
fact remains that in 1894 she must have been only 50 years old and that she
must have been born in 1844. It is undisputed that Roa Matilde was born 16
years after the death of Ramon Viademonte, and therefor could not be a
daughter of the latter.
Counsel for plaintiffs objected to the admission in evidence of the day-book
kept by Ramon Martinez Viademonte, Jr., during his lifetime, alleging that it
has not been proven that the entries in said book were made at the same
time that those events occurred; that the witness who identified it did not see
Ramon Martinez de Viademonte, Jr., in the act of making the said entries, and
that, even if it were so, still the writing contained in the book, being a mere
memorandum of an interested party, can not be admitted at the trial.
The above objection can be met and disposed of by the provisions of section
298, No. 13 of the Code of Civil Procedure, which provides that evidence may
be given upon trial of monuments and inscriptions in public places as
evidence of common reputation; and entries in family Bibles or other family
books or charts; engravings on rings, family portraits and the like, as
evidence of pedigree.
The law does not require that the entries in the said booklet be made at the
same time as the occurrence of those events; hence, the written
memorandum in the same is not subject to the defect attributed to it, The
witness Joaquin Jose de Inchausti declared affirmatively that the

memorandum under consideration has been written in the handwriting of his

brother Ramon Martinez de Viademonte, whose handwriting he was familiar
with, and the testimony of this witness contains some reference to a member
of the family, now dead, and concerning the family genealogy of the same.
It remains now to be decided whether Rosa Matilde Viademonte was a natural
daughter of the deceased Isabel Gonzalez or was a mere protegee cared for
and maintained in the house of said Isabel Gonzalez, and, if in the first case,
the plaintiffs have the right to succeed ab intestato to a part of the
inheritance of Isabel Gonzalez in representation of their mother Rosa Matilde
Viaddemante or Robles.
The record does not furnish satisfactory proof that Rosa Matilde was a
daugther or at least a natural daughter of Isabel Gonzalez; on the other hand,
it is shown in the records of the case that she was a protegee in the house of
said Isabel, for, in a conciliation proceeding had on April 15, 1893, between
Rosa Matilde and Joaquin F. de Inchausti, it appears in the record thereof that,
although in some of the documents presented to justify the accounts, Rosa
Matilde called Rafael de Inchausti her brother, this manner of calling him was
due to the intimacy in which both have been brought up from childhood in
the same house, she being a mere protegee of the latter's parents, and of
because they were really brother and sister.
This statement made by Inchausti in the presence of Rosa Matilde
Viademonte did not bring about a protest or objection on the part of Rosa
Matilde herself or her attorney. In addition to this fact, Rafael C. De Inchausti
stated under oath that it is not true that Rosa MatildeViademonte was his
maternal sister.
Rosa Viademonte herself, in a document dated June 15, 1894 (Exhibit 1, page
135), made the statement that Jose Joaquin de Inchausti, who, together with
his wife, cared for her since her early childhood, bequeathed to her, by virtue
of a codicil executed before a notary public on January 12, 1889, a legacy
amounting to P4,000. The contents of this document constitute a most
convincing proof that Rosa Matilde was not a daughter of Isabel Gonzalez, but
only a protegee of hers and of her husband Jose Joaquin de Inchausti.
Ramon Viademonte, Jr., while yet living, told his brother Joaquin J. de
Inchausti (record, p. 85), that Rosa Matilde was not their sister but only a
protegee of their parents, whose name was Rosa Matilde Robles. It is thus
fully proven in the records of the case that Rosa Matilde, the mother of the
plaintiffs, was not a daughter of Isabel Gonzalez.
Even supposing that Rosa Matilde was in fact a natural child of the deceased
Isabel Gonzalez, because the records show that it was impossible that he was
a legitimate daughter of the latter, still it cannot be disputed that the said
Rosa Matilde could not inherit from her supposed natural mother, Isabel
Gonzalez.
It is a positive fact admitted by the plaintiffs that Isabel Gonzalez died in
1886(record, p. 325) or some years before the Civil Code became operative
in these Islands, and therefore, the hereditary rights of the successors of the
said deceased should be determined in accordance with the prior laws or the
Law of Toro, which provides, among other things, that natural children have
no right to succeed to their natural mother when, on her death, the latter
leaves legitimate children, as in the present case, and for this reason it is
useless to inquire as to whether Rosa Viademonte or Robles was a natural or

even an acknowledged natural child of Isabel Gonzalez.

Rule 1 of the transitory provisions of the Civil Code invoked by the appellants
provides as follows; "Rights arising under the legislation prior to this code,
out of matters carried out under its rules, shall be governed by said prior
legislation, even if the code should regulate them in another manner, or does
not recognize the same. But if said right is declared for the first time in this
code, it shall be effective at once, even when the act which gave rise thereto
may have taken place under the prior legislation, provided it does not
prejudice other acquired rights having the same origin."
When Isabel Gonzalez died on December 12, 1886, or some time before the
Civil Code became effective in these Islands, she was survived by four
children, the eldest being Ramon Viademonte had with her first husband, and
the other three, had with her second husband Jose Joaquin de Inchausti, are
Clotilde, Rafael, and Joaquin. On her death, the right to succeed her was
transmitted by operation of law to her legitimate and legitimated children,
and for this reason, even supposing that Rosa Matilde was a natural child of
Isabel Gonzalez, she could not claim any right to the inheritance of her
supposed natural mother, inasmuch as against her right there exist the rights
acquired by the four legitimate and legitimated children of said Isabel
Gonzalez, which rights can not be injured or prejudiced in accordance with
the conclusive provision of the aforementioned Rule 1 of the transitory
provision of the Civil Code.
Besides, the records show that the action brought by the plaintiffs has
already prescribed, because section 38 of the Code of Civil Procedure
provides that the rights of action which have already accrued, with the
exception of the two cases mentioned in the same section, among which the
present case is not included, must be vindicated by the commencement of an
action or proceeding to enforce the same within ten years after Act No. 190
came into effect, and, as this Act became operative in 1901, it is evident that
the action instituted against the estate of Isabel Gonzalez has already
prescribed.
The plaintiffs, by their complaint, do not only seek the partition of the estate
of the deceased Isabel Gonzalez, but also and principally to recover the part
of the inheritance corresponding to their mother Rosa Matilde in her
succession to the said deceased, so that the discussion during the
proceedings referred mainly to the question as to whether the plaintiffs were
descendants of an heiress to the said deceased, and if so, whether they had
a right derived from their mother to a part of the estate of Isabel Gonzalez.
This action must be brought within ten years. He who brings an action for the
partition or division of hereditary estates or property in common is supposed
to by a coheir and to have an undisputed right to the property claimed or to
be coowner of the same property possessed in common. He who claims a
right to a part of an inheritance of a deceased person, and who alleges that
he is a relative of the latter and has a right of testate or intestate succession
thereto, has for his principal object the recognition of his right to the
inheritance claimed by him and the delivery to him of his share as fixed by
law.
Before concluding this decision, it must be stated that, on page 21 of the
brief signed by Vicente Sotto as the plaintiffs attorney, and after the first five
lines thereof, the following statement appears: "It is also established that
Rosa Viademonte was born of Isabel Gonzalez in the year 1852, that is,
during the widowhood of the latter."

Counsel for the defendants with reason, qualify as false, this affirmation
made by the counsel for the plaintiffs to the effect that the judge has
established the fact that Rosa Viademonte was born of Isabel Gonzalez, when
such affirmation does not appear in any part of the decision rendered by the
said judge.
This court can not look with indifference on any attempt to alter or falsify, for
certain purposes, the facts or their important details in the extracts or
references that have to be made in proceedings or records brought before it.
All the records in a proceeding should contain and reflect the truth in such a
way that all who intervene in it may have absolute confidence that the
course and procedure of a trial are under the vigilance and inspection of the
court.
It is unprofessional and worthy of the highest form of rebuke for a lawyer to
attribute to a judge a statement which he had not made in his decision, and
in view of the fact that Vicente Sotto has already been disbarred from the
exercise of his profession by resolution of this court, it is deemed
unnecessary to determine what punishment shall be adopted for said act,
which in his case, should be imposed upon him as a lawyer
For the foregoing reasons, whereby the errors assigned to the judgment
appealed from are deemed to have been refuted, the said judgment should
be, as it hereby is, affirmed and the defendants absolved from the complaint,
with the costs against the appellants. So ordered.

A.M. No. 533

April 29, 1968

IN RE: FLORENCIO MALLARE.

REYES, J.B.L., Actg. C.J.:
The respondent, Florencio Mallare, was admitted to the practice of law on 5
March 1962. In his verified petition to take the bar examinations in 1961, he
alleged that he is a citizen of the Philippines and that "his father is Esteban
Mallare and his mother is Te Na, both Filipino citizens". (Personal Record, No.
17450, Bar Division)
On 16 July 1962, the then Acting Commissioner of Immigration Martiniano P.
Vivo denounced the respondent to this Court as a Chinaman masquerading
as a Filipino citizen and requested that the matter be investigated thoroughly
and if the respondent fails to show that he has legally become a Filipino,
steps be taken for striking his name from the roll of persons authorized to
practice law. Acting upon the request, this Court, on 9 August 1962, referred
the matter to its Legal Officer-Investigator for investigation and report. An
investigation was thus held wherein the relator or complainant and the
respondent appeared and adduced their respective evidence.

citizen in a final judgment in 1960 by the Court of First Instance of Quezon

province, in its Civil Case No. 329-G (entitled, Vitaliano Itable vs. Artemio,
Florencio, Paciencia, Esperanza and Raymundo Mallare) and his birth record,
wherein he was originally registered as a Chinese, has likewise been ordered
corrected to Filipino, by final judgment in Special Proceeding No. 3925 of the
same court,1 his Filipino citizenship is conclusive, res judicata and binding to
the government and to the world.
Complainant Vivo disputed, on the facts, the respondent's first theory, and,
on the second theory, claimed that the aforestated Civil Case No. 329-G
(Itable vs. Mallare) was a simulated action calculated to obtain a judicial
declaration of Philippine citizenship and, after having obtained the said
declaration, the respondent, together with his brothers and sisters, utilized
the declaration to change their birth and alien registration the better to hide
their true nationality, which is Chinese.
The respondent denies the charge of simulating an action; and by way of
defense, points out that Civil Case No. 329-G and Special Proceeding No.
3925 are not subject to collateral attack and, since his birth record and alien
registration (and that of his brothers and sisters) have been corrected and
cancelled, respectively, the question of their citizenship is now moot and
academic.
On respondent's first claim to citizenship by blood, the earliest datum that
can be stated about the respondent's supposed ancestry is that in 1902,2 exmunicipal president Rafael Catarroja, then eight (8) years old, met for the
first time Ana Mallare, the supposed paternal grandmother of the respondent,
in Macalelon, Quezon. He had not seen her deliver or give birth to the baby
boy, Esteban Mallare, father of the respondent, but met the supposed Filipina
mother and Esteban Mallare years later when the boy was already eight (8)
years old. (Annex "8," pp. 10-12, t.s.n., Sept. 24, 1959, Civil Case No. 329-G,
CFI of Quezon Province). There is no evidence that Ana Mallare was an
"inhabitant of the Philippine Islands continuing to reside therein who was a
Spanish subject on the eleventh day of April, eighteen hundred and ninetynine", as required by the Philippine Bill of July 1, 1902 and she cannot,
therefore, be considered a Filipina. That witness Catarroja, the respondent,
and the latter's brothers and sisters, stated that Ana Mallare was a Filipina, as
well as their testimonies in the civil case that she had not married her
Chinese husband and that she is the true mother of Esteban Mallare, are
more of opinion or conjecture than fact, utterly insufficient to overcome the
presumption that persons living together as husband and wife are married to
each other (Rule 131, par. bb). "Every intendment of law and fact", says
Article 220 of our Civil Code "leans toward the validity of marriage and the
legitimacy of children."

The position of the respondent-lawyer is that he is a Filipino citizen based on

the supposed citizenship of his father, Esteban Mallare, alleged to be a
Filipino citizen by choice, because he was the illegitimate son of a Chinese
father and a Filipina mother, Ana Mallare and that the respondent's mother,
Te Na, a Chinese, followed the citizenship of her husband upon their
marriage.

The respondent relies on three documents as indicative of the alleged

Philippine citizenship of his father, Esteban Mallare. On 7 July 1926, Te Na,
respondent's Chinese mother, was described in a landing certificate of
residence issued to her, as "wife of P.I. citizen" and as wife of Dy Esteban, P.I.
citizen". (Annex "16", being Exh. "3" in Civil Case No. 329-G). On 20 February
1939, Esteban Dy Mallare executed an affidavit stating therein that when he
reached the age of majority he had "definitely elected to be a Filipino citizen
following the citizenship of my mother." (Annex "4" being Exh. "1" in Civil
Case No. 329-G) And, in 1928, Esteban Mallare was a registered voter in
Macalelon, Quezon. (Annex "7", being Exh. "2" in Civil Case No. 329-G).

The respondent's second theory is that, having been declared a Filipino

A landing certificate of residence issued under Section 7, Act 702 by the

Collector of Customs is based upon an administrative ex parte determination

of the evidence presented and the facts as stated by the applicant and,
therefore, carries little evidentiary weight as to the citizenship of the
applicant's husband. In the instant case, the truth of Te Na's declarations
when she applied for the landing certificate could have been inquired into
had she been presented as a witness in these proceedings, but this was not
done.
The affidavit of Esteban Mallare, besides being self-serving, is not a substitute
for a duly recorded election of Philippine citizenship, assuming that the
affiant was qualified to so elect. When Esteban executed it, he was already
thirty-six (36) years old and he executed it for the purpose, stated in the last
paragraph, of making a change in a miscellaneous lease application wherein
he had previously stated that he is a citizen of China. Nor can it be regarded
as a re-affirmation of an alleged election of citizenship, since no such
previous election was proven to have existed.

a Chinese; that he belongs to the yellow race and that he had used these
other names: "Tan Jua Gae", "Enciong" and "Jua Gac" (Exh. "N"). He had been
a teacher in the Candon Chinese School (t.s.n., p. 17, Oct. 3, 1962). His
explanation that it was his mother who registered him as an alien is flimsy;
and, as stated hereinbefore, he did not present his mother as a witness.
The evidence is thus clearly preponderant, if not overwhelming that the
respondent's father, Esteban Mallare or "Mallari", also known as "Esteban
Dy", "Esteban Dy Mallare" and "Esteban Tan", was and remained a Chinese
until he died; consequently, the respondent's mother, admittedly a Chinese,
retained her original citizenship and their offspring, respondent, Florencio
Mallare, together with his brothers and sisters, are likewise Chinese nationals,
through and through.

Against these pretensions of Philippine citizenship, all the five (5) known
children of the spouses Esteban Mallare and Te Na Artemio, Esperanza,
Florencio, Paciencia and Raymundo, were registered at birth as children of
aChinese father and a Chinese mother and with the added detail that their
parents were born in China.

We now turn to respondent's second defense of res judicata. There are

certain marks of simulation that attended Civil Case No. 329-G, and
indicating that it was brought to circumvent a previous unfavorable opinion of
the Secretary of Justice denying cancellation of Mallare's alien registration
(Op. No. 90, Ser. of 1955, dated March 31, 1955). The said civil case was
instituted by the vendor (Vitaliano Itable) of a certain parcel of land to rescind
the sale and recover the land sold from the vendees, who are the herein
respondent and his brothers and sisters, on the ground that the said vendees
are Chinese. The vendor-plaintiff practically abandoned the case; the
vendees-defendants submitted evidence purporting to show their Filipino
citizenship, and plaintiff neither cross examined nor presented rebuttal proof.
After trial, the court, declaring the vendees as natural-born Filipino citizens,
decided for the validity of the sale of the parcel of land.

The birth certificate of Esperanza Mallare (Exh. "F") who was born on 25
October 1939, is particularly significant in this regard, because it bears the
father's own signature. If Esteban Mallare was indeed a Filipino by choice, as
stated by him in his aforementioned affidavit (Annex 4), then he should have
so stated in this birth certificate of his daughter, instead, he admits, against
his own interest, that he is a Chinese. Esteban Mallare's own death certificate
(Exh. "C"), over the signature of his son, Artemio Mallare, shows against
Artemio's own interest that Esteban was a Chinese, born in Fookiang, China;
that he died on 5 June 1945, at the age of 42 and is buried at the Chinese
cemetery, having resided in the Philippines for 28 years (Exh. "C"), i.e., only
since 1917.

On the basis of the foregoing declaration by the Court of First Instance of

Quezon Province, the respondent and his brothers and sisters filed Special
Proceeding No. 3925, in the same court, but in a different branch, for the
"correction" of their birth records. The local fiscal, representing the Solicitor
General, appeared but did not oppose the petition; wherefore, after hearing,
the court granted the petition. Based on the same judicial declaration, the
then Commissioner of Immigration De la Rosa (not the complainant)
cancelled on June 8, 1960, the alien registration of the herein respondent and
that of his brothers and sisters, and issued to them identification certificates
recognizing them as Filipino citizens. Then Solicitor General Alafriz took the
same position.

The affidavit of Artemio denying that the signature in the aforesaid death
certificate is his, is inadmissible and, therefore, should be rejected, as it was
offered in evidence for the first time after trial was closed, as an annex to the
respondent's memorandum with the investigator. The affiant was not
examined thereon, and the affidavit is self-serving besides.

Civil Case No. 329-G and Special Proceeding No. 3925 are not modes of
acquiring Philippine citizenship; neither is the Chinese citizenship of the
respondent converted to Filipino because certain government agencies
recognized him as such. He remains, by jus sanguinis, a Chinese until he is
naturalized.

The entire family, consisting of the father, mother and their four (4) children
(Raymundo was not yet born) were registered as aliens in 1942 in the then
Division of Alien Statistics, pursuant to the proclamation of the Commanderin-Chief of the Imperial Japanese Forces in the Philippines and Executive
Order No. 25 of the then Executive Commission. (See letter of Jan. 18, 1963
from the Bureau of Immigration to the Legal Officer-Investigator, see also pp.
171 and 180-181, Vol. I, No. 4, Official Gazette, published during Japanese
occupation.) .

It is noted that the declaration that the respondent and his brothers and
sisters are Filipino citizens is stated in the dispositive portion of the decision
in Civil Case No. 329-G, which was an action in personam. The
pronouncement was not within the court's competence, because the
declaration of the citizenship of these defendants was not the relief that was
sought. At the time, the pronouncement was beyond judicial power, there
being no law authorizing the institution of a judicial preceding to declare the
citizenship of an individual (Danilo Channie Tan v. Republic, L-14159, April 18,
1960; Paralaran v. Republic, L-15047, Jan. 30, 1962; Tan Yu Chin v. Republic,
L-15775, April 29, 1961; Tan v. Republic, L-16108, October 31, 1961; Santiago
vs. Commissioner, L-14653, Jan. 31, 1963; Comissioner vs. Domingo, L-

Esteban Mallare's registration as a voter indicates his desire to exercise a

right appertaining exclusively to Filipino citizens but this does not alter his
real citizenship, which, in this jurisdiction, is determinable by his blood ( jus
sanguinis).

In addition, the respondent himself was again registered as an alien in 1950,

his application thereto bearing his thumbprints and stating therein that he is

21274, July 31, 1963; Lao Yap Diok, et al. v. Republic, L-19107-09, Sept. 30,
1964).
In the basic case Channie Tan vs. Republic, ante, this Court ruled as
follows:1wph1.t
Under our laws, there can be no action or proceeding for the judicial
declaration of the citizenship of an individual. Courts of justice exist
for the settlement of justiciable controversies, which imply a given
right, legally demandable and enforceable, an act or omission
violative of said right, and a remedy granted or sanctioned by law, for
said breach of right. As an incident only of the adjudication of the
rights of the parties to a controversy, the court may pass upon, and
make a pronouncement relative to, their status. Otherwise, such a
pronouncement is beyond judicial power. Thus, for instance, no action
or proceeding may be instituted for a declaration to the effect that
plaintiff or petitioner is married, or single, or a legitimate child,
although a finding thereon may be made as a necessary premise to
justify a given relief available only to one enjoying said status. At
times, the law permits the acquisition of a given status, such as
naturalization, by judicial decree. But, there is no similar legislation
authorizing the institution of a judicial proceeding to declare that a
given person is part of our citizenry. (Tan vs. Republic, G.R. No. L14159, April 18, 1960, reiterated in G.R. No. L-15775, April 29, 1961).
The said judicial declaration3 was merely an incident to the adjudication of
the rights of the parties to the controversy over land ownership. Their
citizenship was not the thing adjudicated in the judgment and the declaration
that they are Filipinos was but a necessary premise for the court to arrive at a
conclusion that the sale of the realty was valid as between the parties. Not
being the thing directly adjudicated, their declared citizenship is not res
judicata, and cannot become conclusive.
The appearance of the fiscal, representing the Solicitor General, in Special
Proceeding No. 3925 does not bind the state to the order of "correction" of
the birth records because the proceeding was not instituted as in rem and,
under no law had the state given its consent to be party thereto. For this
reason, the fiscal's appearance was an unauthorized one.
It is noteworthy that in neither case relied upon by the respondent does it
appear that his claim for citizenship was given adequate publication so as to
apprise all concerned and give them opportunity to contest it or supply the
corresponding public office any derogatory data that might exist against the
alleged citizenship. Hence, neither decision constitutes res judicata on the
issue of respondent's alleged Filipino nationality.
And certainly, the Supreme Court, acting pursuant to its inherent and
constitutional authority, may not be precluded from inquiring into the
citizenship of persons admitted to the practice of law, independently of any
other court's findings in the cases or proceedings brought or instituted
therein.
IN VIEW OF ALL THE FOREGOING, the respondent Florencio Mallare is hereby
declared excluded from the practice of law; his admission to the Philippine
bar is revoked and he is hereby ordered to return immediately to this Court
the lawyer's diploma previously issued to him.
Let a copy of this decision be furnished, when it becomes final, to the

Secretary of Justice, for such action as may be deemed warranted; and let
another copy be sent to the Local Civil Registrar of Macalelon, Quezon, for
purposes of record in the corresponding civil registry of births. So ordered.

DBP POOL OF ACCREDITED G.R. NO. 147039

INSURANCE COMPANIES,
Petitioner, Present:
PANGANIBAN, C.J.
(Chairman)
YNARES-SANTIAGO,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ.
RADIO MINDANAO NETWORK,
INC., Promulgated:
Respondent. January 27, 2006
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
AUSTRIA-MARTINEZ, J.:
This refers to the petition for certiorari under Rule 45 of the Rules of Court
seeking the review of the Decision[1] dated November 16, 2000 of the Court
of Appeals (CA) in CA-G.R. CV No. 56351, the dispositive portion of which
reads:
Wherefore, premises considered, the appealed Decision of
the Regional Trial Court of Makati City, Branch 138 in Civil
Case No. 90-602 is hereby AFFIRMED with MODIFICATION in
that the interest rate is hereby reduced to 6% per annum.
Costs against the defendants-appellants.
SO ORDERED.[2]

The assailed decision originated from Civil Case No. 90-602 filed by Radio
Mindanao Network, Inc. (respondent) against DBP Pool of Accredited
Insurance Companies (petitioner) and Provident Insurance Corporation

(Provident) for recovery of insurance benefits. Respondent owns several

broadcasting stations all over the country. Provident covered respondents
transmitter equipment and generating set for the amount of P13,550,000.00
under Fire Insurance Policy No. 30354, while petitioner covered respondents
transmitter, furniture, fixture and other transmitter facilities for the amount
of P5,883,650.00 under Fire Insurance Policy No. F-66860.

In

the

evening

of July

27,

1988,

respondents

SO ORDERED.[4]

located

Both insurance companies appealed from the trial courts decision but the CA

in SSS Building, Bacolod City, was razed by fire causing damage in the

affirmed the decision, with the modification that the applicable interest rate

amount

under the two

was reduced to 6% per annum. A motion for reconsideration was filed by

insurance policies but the claims were denied on the ground that the cause of

petitioner DBP which was denied by the CA per its Resolution dated January

loss was an excepted risk excluded under condition no. 6 (c) and (d), to wit:

30, 2001.[5]

of P1,044,040.00. Respondent sought

radio

plaintiff. Defendant Provident Insurance Corporation is

directed to pay plaintiff the amount of P450,000.00
representing the value of the destroyed property insured
under its Fire Insurance Policy plus 12% legal interest
from March 2, 1990 the date of the filing of the
Complaint. Defendant DBP Pool Accredited Insurance
Companies is likewise ordered to pay plaintiff the sum
of P602,600.00 representing the value of the destroyed
property under its Fire Insurance Policy plus 12% legal
interest from March 2, 1990.

recovery

station

6. This insurance does not cover any loss or damage

occasioned by or through or in consequence, directly or
indirectly, of any of the following consequences, namely:
(c) War, invasion, act of foreign enemy, hostilities, or warlike
operations (whether war be declared or not), civil war.
(d) Mutiny, riot, military or popular rising, insurrection,
rebellion, revolution, military or usurped power.[3]

The insurance companies maintained that the evidence showed that the fire
was caused by members of the Communist Party of the Philippines/New
Peoples Army (CPP/NPA); and consequently, denied the claims. Hence,
respondent was constrained to file Civil Case No. 90-602 against petitioner

[6] with the following assignment of errors:

Assignment of Errors
THE HONORABLE COURT OF APPEALS ERRED WHEN IT HELD
THAT THERE WERE NO SUFFICIENT EVIDENCE SHOWING THAT
THE APPROXIMATELY TENTY [sic] (20) ARMED MEN WHO
CUSED [sic] THE FIRE AT RESPONDENTS RMN PROPERTY AT
BACOLOD CITY WERE MEMBERS OF THE CPP-NPA.
THE HONORABLE COURT OF APPEALS ERRED WHEN IT
ADJUDGED THAT RESPONDENT RMN CANNOT BEHELD [sic]
FOR DAMAGES AND ATTORNEYS FEES FOR INSTITUTING THE
PRESENT ACTION AGAINST THE PETITIONER UNDER ARTICLES
21, 2208, 2229 AND 2232 OF THE CIVIL CODE OF THE
PHILIPPINES.[7]
Petitioner assails the factual finding of both the trial court and the CA that its

and Provident.
After trial on the merits, the Regional Trial Court of Makati, Branch 138,
rendered a decision in favor of respondent. The dispositive portion of the

evidence failed to support its allegation that the loss was caused by an
excepted risk, i.e., members of the CPP/NPA caused the fire. In upholding
respondents claim for indemnity, the trial court found that:

decision reads:
IN VIEW THEREOF,

Hence, herein petition by DBP Pool of Accredited Insurance Companies,

judgment is

rendered in favor of

The only evidence which the Court can consider to determine

if the fire was due to the intentional act committed by the

members of the New Peoples Army (NPA), are the testimony
[sic] of witnesses Lt. Col. Nicolas Torres and SPO3 Leonardo
Rochar who were admittedly not present when the fire
occurred. Their testimony [sic] was [sic] limited to the fact
that an investigation was conducted and in the course of the
investigation they were informed by bystanders that heavily
armed men entered the transmitter house, poured gasoline in
(sic) it and then lighted it. After that, they went out shouting
Mabuhay ang NPA (TSN, p. 12., August 2, 1995). The persons
whom they investigated and actually saw the burning of the
station were not presented as witnesses.The documentary
evidence particularly Exhibits 5 and 5-C do not satisfactorily
prove that the author of the burning were members of the
NPA. Exhibit 5-B which is a letter released by the NPA merely
mentions some dissatisfaction with the activities of some
people in the media in Bacolod. There was no mention there
of any threat on media facilities.[8]

personally see the armed men even as he tried to pursue

them. Note that when Lt. Col. Torres was presented as
witness, he was presented as an ordinary witness only and
not an expert witness. Hence, his opinion on the identity or
membership of the armed men with the CPP-NPA is not
admissible in evidence.
Anent the letter of a certain Celso Magsilang, who claims to
be a member of NPA-NIROC, being an admission of person
which is not a party to the present action, is likewise
inadmissible in evidence under Section 22, Rule 130 of
the Rules of Court. The reason being that an admission is
competent only when the declarant, or someone identified in
legal interest with him, is a party to the action.[9]

The Court will not disturb these factual findings absent compelling or
exceptional reasons. It should be stressed that a review by certiorari under

The CA went over the evidence on record and sustained the findings of the

Rule 45 is a matter of discretion. Under this mode of review, the jurisdiction

trial court, to wit:

of the Court is limited to reviewing only errors of law, not of fact.[10]

To recapitulate, defendants-appellants presented the

following to support its claim, to wit: police blotter of the
burning of DYHB, certification of the Negros Occidental
Integrated National Police, Bacolod City regarding the
incident, letter of alleged NPA members Celso Magsilang
claiming responsibility for the burning of DYHB, fire
investigation report dated July 29, 1988, and the testimonies
of Lt. Col. Nicolas Torres and SFO III Leonardo Rochas. We
examined carefully the report on the police blotter of the
burning of DYHB, the certification issued by the Integrated
National Police of Bacolod City and the fire investigation
report prepared by SFO III Rochas and there We found
that none of them categorically stated that the twenty (20)
armed men which burned DYHB were members of the
CPP/NPA. The said documents simply stated that the said
armed men were believed to be or suspected of being
members of the said group.Even SFO III Rochas admitted that
he was not sure that the said armed men were members of
the CPP-NPA, thus:
In fact the only person who seems to be so sure that that the
CPP-NPA had a hand in the burning of DYHB was Lt. Col.
Nicolas Torres. However, though We found him to be
persuasive in his testimony regarding how he came to arrive
at his opinion, We cannot nevertheless admit his testimony as
conclusive proof that the CPP-NPA was really involved in the
incident considering that he admitted that he did not

Moreover, when supported by substantial evidence, findings of fact of the

trial court as affirmed by the CA are conclusive and binding on the parties,
[11] which

this

Court

will

not

review

unless

there

are

exceptional

circumstances. There are no exceptional circumstances in this case that

would have impelled the Court to depart from the factual findings of both the
trial court and the CA.

Both the trial court and the CA were correct in ruling that petitioner failed to
prove that the loss was caused by an excepted risk.

Petitioner argues that private respondent is responsible for proving that the
cause of the damage/loss is covered by the insurance policy, as stipulated in
the insurance policy, to wit:
Any loss or damage happening during the existence of

abnormal conditions (whether physical or otherwise) which

are occasioned by or through in consequence directly or
indirectly, of any of the said occurrences shall be deemed to
be loss or damage which is not covered by the insurance,
except to the extent that the Insured shall prove that such
loss or damage happened independently of the existence of
such abnormal conditions.

parts.[15] For the defendant, an affirmative defense is one which is not a

denial of an essential ingredient in the plaintiffs cause of action, but one
which, if established, will be a good defense i.e. an avoidance of the claim.
[16]

In any action, suit or other proceeding where the Companies

allege that by reason of the provisions of this condition any
loss or damage is not covered by this insurance, the burden
of proving that such loss or damage is covered shall be upon
the Insured.[12]

Particularly, in insurance cases, where a risk is excepted by the terms of a

policy which insures against other perils or hazards, loss from such a risk
constitutes a defense which the insurer may urge, since it has not assumed

An insurance contract, being a contract of adhesion, should be so interpreted

that risk, and from this it follows that an insurer seeking to defeat a

as to carry out the purpose for which the parties entered into the contract

claim because of an exception or limitation in the policy has the

which is to insure against risks of loss or damage to the goods. Limitations of

burden of proving that the loss comes within the purview of the

liability should be regarded with extreme jealousy and must be construed in

exception or limitation set up. If a proof is made of a loss apparently

such a way as to preclude the insurer from noncompliance with its

within a contract of insurance, the burden is upon the insurer to prove that

obligations.[13]

the loss arose from a cause of loss which is excepted or for which it is not
liable, or from a cause which limits its liability.[17]

The burden of proof contemplated by the aforesaid provision actually refers

to the burden of evidence (burden of going forward).[14] As applied in this

Consequently, it is sufficient for private respondent to prove the fact of

case, it refers to the duty of the insured to show that the loss or damage is

damage or loss. Once respondent makes out a prima facie case in its favor,

covered by the policy. The foregoing clause notwithstanding, the burden of

the duty or the burden of evidence shifts to petitioner to controvert

proof still rests upon petitioner to prove that the damage or loss was caused

respondents prima facie case.[18] In this case, since petitioner alleged an

by an excepted risk in order to escape any liability under the contract.

excepted risk, then the burden of evidence shifted to petitioner to prove such
exception. It is only when petitioner has sufficiently proven that the damage

Burden of proof is the duty of any party to present evidence to establish his

or loss was caused by an excepted risk does the burden of evidence shift

claim or defense by the amount of evidence required by law, which is

back to respondent who is then under a duty of producing evidence to show

preponderance of evidence in civil cases. The party, whether plaintiff or

why

defendant, who asserts the affirmative of the issue has the burden of proof to

liability. Unfortunately for petitioner, it failed to discharge its primordial

obtain a favorable judgment. For the plaintiff, the burden of proof never

burden of proving that the damage or loss was caused by an excepted risk.

such

excepted

risk

does

not

release

petitioner

from

any

statement. The rule in res gestae applies when the declarant himself did not
Petitioner however, insists that the evidence on record established the

testify and provided that the testimony of the witness who heard the

identity of the author of the damage. It argues that the trial court and the CA

declarant complies with the following requisites: (1) that the principal act,

erred in not appreciating the reports of witnesses Lt. Col Torres and SFO II

the res gestae, be a startling occurrence; (2) the statements were made

Rochar that the bystanders they interviewed claimed that the perpetrators

before the declarant had the time to contrive or devise a falsehood; and (3)

were members of the CPP/NPA as an exception to the hearsay rule as part

that the statements must concern the occurrence in question and its

of res gestae.

immediate attending circumstances.[21]

A witness can testify only to those facts which he knows of his personal

The Court is not convinced to accept the declarations as part of res

knowledge, which means those facts which are derived from his perception.

gestae. While it may concede that these statements were made by the

[19] A witness may not testify as to what he merely learned from others

bystanders during a startling occurrence, it cannot be said however, that

either because he was told or read or heard the same. Such testimony is

these utterances were made spontaneously by the bystanders and before

considered hearsay and may not be received as proof of the truth of what he

they had the time to contrive or devise a falsehood. Both SFO III

has learned. The hearsay rule is based upon serious concerns about the

Rochar and Lt. Col. Torres received the bystanders statements while they

trustworthiness and reliability of hearsay evidence inasmuch as such

were making their investigations during and after the fire. It is reasonable to

evidence are not given under oath or solemn affirmation and, more

assume that when these statements were noted down, the bystanders

importantly, have not been subjected to cross-examination by opposing

already had enough time and opportunity to mill around, talk to one another

counsel to test the perception, memory, veracity and articulateness of the

and exchange information, not to mention theories and speculations, as is

out-of-court declarant or actor upon whose reliability on which the worth of

the usual experience in disquieting situations where hysteria is likely to take

the out-of-court statement depends.[20]

place. It cannot therefore be ascertained whether these utterances were the

products of truth. That the utterances may be mere idle talk is not remote.

Res gestae, as an exception to the hearsay rule, refers to those exclamations

and statements made by either the participants, victims, or spectators to a

At best, the testimonies of SFO III Rochar and Lt. Col. Torres that these

crime immediately before, during, or after the commission of the crime, when

statements were made may be considered as independently relevant

the circumstances are such that the statements were made as a spontaneous

statements gathered in the course of their investigation, and are admissible

reaction or utterance inspired by the excitement of the occasion and there

not as to the veracity thereof but to the fact that they had been thus uttered.

was no opportunity for the declarant to deliberate and to fabricate a false

[22]

be members of the New Peoples Army NPA,[28] and the fire investigation
Furthermore, admissibility of evidence should not be equated with its weight

report concluded that (I)t is therefore believed by this Investigating Team

and sufficiency.[23] Admissibility of evidence depends on its relevance and

that the cause of the fire is intentional, and the armed men suspected to be

competence, while the weight of evidence pertains to evidence already

members of the CPP/NPA where (sic) the ones responsible [29] All these

admitted and its tendency to convince and persuade.[24] Even assuming that

documents show that indeed, the suspected executor of the fire were

the declaration of the bystanders that it was the members of the CPP/NPA

believed to be members of the CPP/NPA. But suspicion alone is not sufficient,

who caused the fire may be admitted as evidence, it does not follow that

preponderance of evidence being the quantum of proof.

such

declarations

are

sufficient

proof. These

declarations

should

be

calibrated vis--vis the other evidence on record. And the trial court aptly

All told, the Court finds no reason to grant the present petition.

noted that there is a need for additional convincing proof, viz.:

The Court finds the foregoing to be insufficient to establish
that the cause of the fire was the intentional burning of the
radio facilities by the rebels or an act of insurrection, rebellion
or usurped power. Evidence that persons who burned the
radio facilities shouted Mabuhay ang NPA does not furnish
logical conclusion that they are member [sic] of the NPA or
that
their
act
was
an
act
of
rebellion
or
insurrection. Additional
convincing
proof
need
be
submitted. Defendants failed to discharge their responsibility
to present adequate proof that the loss was due to a risk
excluded.[25]

WHEREFORE, the petition is DISMISSED. The Court of Appeals Decision

dated November 16, 2000 and Resolution dated January 30, 2001 rendered in
CA-G.R. CV No. 56351 are AFFIRMED in toto.

SO ORDERED.

JUANITO TALIDANO, G.R. No. 172031

While the documentary evidence presented by petitioner, i.e., (1) the police
blotter; (2) the certification from the Bacolod Police Station; and (3) the Fire
Investigation Report may be considered exceptions to the hearsay rule, being
entries in official records, nevertheless, as noted by the CA, none of these

Petitioner,
Present:
QUISUMBING, J.,
Chairperson,
- versus - CARPIO MORALES,
TINGA,
VELASCO, JR., and
BRION, JJ.

persons accompanied by one (1) woman all believed to be CPP/NPA more or

FALCON MARITIME & ALLIED

SERVICES, INC., SPECIAL EIGHTH
DIVISION OF THE COURT OF Promulgated:
APPEALS, AND LABOR ARBITER
ERMITA C. CUYUGA,
Respondents. July 14, 2008

less 20 persons suspected to be CPP/NPA,[27] while the certification from the

x----------------------------------------------------------------------------x

documents categorically stated that the perpetrators were members of the

CPP/NPA.[26] Rather, it was stated in the police blotter that: a group of

Bacolod Police station stated that some 20 or more armed men believed to

DECISION
TINGA, J.:
Private respondent countered that petitioner had voluntarily disembarked the
This Petition for Certiorari[1] under Rule 65 of the Rules of Court seeks to
vessel after having been warned several times of dismissal from service for
annul the Decision[2] and Resolution[3] of the Court of Appeals, dated 16
his incompetence, insubordination, disrespect and insulting attitude toward
November 2005 and2 February 2006, respectively, which upheld the validity
his superiors. It cited an incident involving petitioners incompetence wherein
of the dismissal of Juanito Talidano (petitioner). The challenged decision
the vessel invaded a different route at theOsaka Port in Japan due to the
reversed and set aside the Decision[4] of the National Labor Relations
absence of petitioner who was then supposed to be on watch duty. As proof,
Commission (NLRC) and reinstated that of the Labor Arbiter.[5]
it presented a copy of a fax message, sent to it on the date of incident,
reporting the vessels deviation from its course due to petitioners neglect of
Petitioner was employed as a second marine officer by Falcon Maritime and
duty at the bridge,[8] as well as a copy of the report of crew discharge issued
Allied Services, Inc. (private respondent) and was assigned to M/V Phoenix
by the master of M/VPhoenix Seven two days after the incident.[9]
Seven, a vessel owned and operated by Hansu Corporation (Hansu) which is
based in Korea. His one (1)-year contract of employment commenced on 15
Private respondent stated that since petitioner lodged the complaint before
October 1996 and stipulated the monthly wage at $900.00 with a fixed
the Labor Arbiter two (2) years and nine (9) months after his repatriation,
overtime pay of $270.00 and leave pay of $75.00.[6]
prescription had already set in by virtue of Revised POEA Memorandum
Circular No. 55, series of 1996 which provides for a one-year prescriptive
Petitioner claimed that his chief officer, a Korean, always discriminated
period for the institution of seafarers claims arising from employment
against and maltreated the vessels Filipino crew. This prompted him to send a
contract.[10]
letter-complaint to the officer-in-charge of the International Transport
Federation (ITF) in London, a measure that allegedly was resented by the
On 5 November 2001, the Labor Arbiter rendered judgment dismissing
chief officer. Consequently, petitioner was dismissed on 21 January 1997. He
petitioners complaint, holding that he was validly dismissed for gross neglect
filed a complaint for illegal dismissal on 27 October 1999.[7]
of duties. The Labor Arbiter relied on the fax messages presented by private
respondent to prove petitioners neglect of his duties, thus:
x x x The fax message said that the Master of M/V Phoenix
Seven received an emergency warning call from Japan Sisan
Sebo Naika Radio Authority calling attention to the Master of
the vessel M/V Phoenix Seven that his vessel is invading

other route [sic]. When the Master checked the Bridge, he

found out that the Second Officer (complainant) did not carry
out his duty wathch. There was a confrontation between the
Master and the Complainant but the latter insisted that he
was right. The argument of the Complainant asserting that he
was right cannot be sustained by this Arbitration Branch. The
fact that there was an emergency call from the Japanese port
authority that M/V Phoenix Seven was invading other route
simply means that Complainant neglected his duty. The fax
message stating that Complainant was not at the bridge at
the time of the emergency call was likewise not denied nor
refuted by the Complainant.Under our jurisprudence, any
material allegation and/or document which is not denied
specifically is deemed admitted. If not of the timely call [sic]
from the port authority that M/V Phoenix Seven invaded other
route, the safety of the vessel, her crew and cargo may be
endangered. She could have collided with other vessels
because of complainants failure to render watch duty.[11]

On appeal, the NLRC reversed the ruling of the Labor Arbiter and declared the
dismissal as illegal. The dispositive portion of the NLRCs decision reads:
WHEREFORE, premises considered, the decision appealed
from is hereby reversed and set aside and a new one entered
declaring
the
dismissal
of
the
complainant
as
illegal.Respondents Falcon Maritime & Allied Services, Inc.
and Hansu Corporation are hereby ordered to jointly and
severally pay complainant the amount equivalent to his three
(3) months salary as a result thereof.[12]

The NLRC held that the fax messages in support of the alleged misbehavior
and neglect of duty by petitioner have no probative value and are selfserving. It added that the ships logbook should have been submitted in
evidence as it is the repository of all the activities on board the vessel,
especially those affecting the performance or attitude of the officers and
crew members, and, more importantly, the procedures preparatory to the

discharge of a crew member. The NLRC also noted that private respondent
failed to comply with due process in terminating petitioners employment.[13]

Private

respondent

moved

for

reconsideration,[14] claiming

that

the

complaint was filed beyond the one-year prescriptive period. The NLRC,
however, denied reconsideration in a Resolution dated 30 August 2002.
[15] Rejecting the argument that the complaint had already prescribed, it
ruled:
Records show that respondent in this case had filed a motion
to dismiss on the ground of prescription before the Labor
Arbiter a quo who denied the same in an Order dated August
1, 2000. Such an Order being unappealable, the said issue of
prescription cannot be raised anew specially in a motion for
reconsideration. (Citations omitted)[16]

G.R. SP No. 73521, the filing of the second petition hinging on the same
cause of action after the first petition had been dismissed violates not only
It appears that respondent received a copy of the NLRC Resolution[17] on 24

the rule on forum shopping but also the principle of res judicata. He

September 2002 and that said resolution became final and executory on 7

highlighted the fact that the decision subject of the second petition before

October 2002.[18]

the Court of Appeals had twice become final and executory, with entries of
judgment made first by the NLRC and then by the Court of Appeals.

Private respondent brought the case to the Court of Appeals via a Petition for
Certiorari[19] on 8 October 2002. The petition, docketed as CA-G.R. Sp. No.

The appellate court ultimately settled the issue of prescription, categorically

73521, was dismissed on technicality in a Resolution dated 29 October 2002.

declaring that the one-year prescriptive period applies only to employment

The pertinent portion of the resolution reads:

contracts entered into as of 1 January 1997 and not those entered prior
thereto, thus:

(1)
[T]he
VERIFICATION
AND
CERTIFICATION OF NON-FORUM SHOPPING was
signed by one Florida Z. Jose, President of
petitioner Falcon Maritime and Allied Services,
Inc., without proof that she is the duly authorized
representative of petitioner-corporation;
(2)
[T]here is no affidavit of
service of the petition to the National Labor
Relations Commission and to the adverse party;
(3)
[T]here is no explanation to
justify service by mail in lieu of the required
personal service. (Citations omitted)[20]

x x x The question of prescription is untenable. Admittedly,

POEA Memorandum Circular [No.] 55 prescribing the standard
terms of an employment contract of a seafarer was in effect
when the respondent was repatriated on January 21,
1997. This administrative issuance was released in
accordance with Department Order [No.] 33 of the Secretary
of Labor directing the revision of the existing Standard
Employment Contract to be effective by January 1,
1997. Section 28 of this revised contract states: all claims
arising therefrom shall be made within one year from the
date of the seafarers return to the point of hire.

An entry of judgment was issued by the clerk of court on 23 November

2002 stating that the 29 October 2002 Resolution had already become final
and executory.[21]Meanwhile, on 12 November 2002, private respondent
filed another petition before the Court of Appeals,[22] docketed as CA G.R. SP
No. 73790. This is the subject of the present petition.

Petitioner dispensed with the filing of a comment.[23] In his Memorandum,

[24] however, he argued that an entry of judgment having been issued in CA-

It is crystal clear that the one-year period of prescription of

claims in the revised standard contract applies only to
employment contracts entered into as of January 1, 1997. If
there is still any doubt about this, it should be removed by
the provision of Circular [No.] 55 which says that the new
schedule of benefits to be embodied in the standard contract
will apply to any Filipino seafarer that will be deployed on or
after the effectivity of the circular.
The respondent was deployed before January 1, 1997. As
acknowledged by the petitioners, the rule prior to Circular
[No.] 55 provided for a prescriptive period of three years. We
cannot avoid the ineluctable conclusion that the claim of the
respondent was filed within the prescriptive period.[25]

cognizance of the second petition by stressing that there is no law, rule or

decision that prohibits the filing of a new petition for certiorari within the
Despite ruling that prescription had not set in, the appellate court
reglementary period after the dismissal of the first petition due to
nonetheless declared petitioners dismissal from employment as valid and
technicality.[27] It rebuts petitioners charge of forum shopping by pointing
reinstated the Labor Arbiters decision.
out that the dismissal of the first petition due to technicality has not ripened
into res judicata, which is an essential element of forum shopping.[28]
The appellate court relied on the fax messages issued by the ship master
shortly after petitioner had committed a serious neglect of his duties. It noted
In determining whether a party has violated the rule against forum shopping,
that the said fax messages constitute the res gestae. In defending the nonthe test to be applied is whether the elements of litis pendentia are present
presentation of the logbook, it stated that three years had already passed
or whether a final judgment in one case will amount to res judicata in the
since the incident and Hansu was no longer the principal of private
other.[29] This issue has been thoroughly and extensively discussed and
respondent.
correctly resolved by the Court of Appeals in this wise:
Petitioners motion for reconsideration was denied. Hence he filed this instant
petition.

Citing grave abuse of discretion on the part of the Court of Appeals,

petitioner reiterates his argument that the appellate court should not have
accepted the second petition in view of the fact that a corresponding entry of
judgment already has been issued. By filing the second petition, petitioner
believes that private respondent has engaged in forum shopping.[26]

Private respondent, for its part, defends the appellate court in taking

The respondents two arguments essay on certain

developments in the case after the NLRC rendered its
decision. He points out with alacrity that an entry of
judgment was issued twice first by the NLRC with respect to
its decision and then by the Ninth Division of the Court of
Appeals after it dismissed on technical grounds the first
petition for certiorari filed by the petitioner.Neither event, for
sure, militates against the institution of a second petition for
certiorari. A decision of the NLRC is never final for as long as
it is the subject of a petition for certiorari that is pending with
a superior court. A contrary view only demeans our certiorari
jurisdiction and will never gain currency under our system of
appellate court review. It is more to the point to ask if a
second petition can stand after the first is dismissed, but
under the particular circumstances in which the second was
brought, we hold that it can. The theory of res judicata
invoked by the respondent to bar the filing of the second
petition does not apply. The judgment or final resolution in
the first petition must be on the merits for res judicata to
inhere, and it will not be on the merits if it is founded on a
consideration of only technical or collateral points. Yet this
was exactly how the first petition was disposed of. SP 73521
was dismissed as a result of the failure of the petitioner to
comply with the procedural requirements of a petition for
certiorari. The case never touched base. There was no
occasion for the determination of the substantive rights of
the parties and, in this sense, the merits of the case were not
involved. The petitioner had actually the option of either

refilling [sic] the case or seeking reconsideration in the

original action. It chose to file SP 73790 after realizing that it
still had enough time left of the original period of 60 days
under Rule 65 to do so.

Petitioner submits that the Court of Appeals erred in relying merely on fax
messages to support the validity of his dismissal from employment. He

Since the dismissal of the first petition did not ripen into res
judicata, it may not be said that there was forum shopping
with the filing of the second. The accepted test for
determining whether a party violated the rule against forum
shopping insofar as it is applicable to this setting is whether
the judgment or final resolution in the first case amounts
to res judicata in the second. Res judicata is central to the
idea of forum shopping. Without it, forum shopping is nonexistent. The dismissal of the first petition, moreover, if it
does not amount to res judicata, need not be mentioned in
the certification of non-forum shopping accompanying the
second action. The omission will not be fatal to the viability of
the second case. (Citations omitted)[30]

maintains that the first fax message containing the information that the
vessel encroached on a different route was a mere personal observation of
the ship master and should have thus been corroborated by evidence, and
that these fax messages cannot be considered as res gestae because the
statement of the ship master embodied therein is just a report. He also
contends that he has not caused any immediate danger to the vessel and
that if he did commit any wrongdoing, the incident would have been recorded
in the logbook. Thus, he posits that the failure to produce the logbook
reinforces the theory that the fax messages have been concocted to justify
his unceremonious dismissal from employment. Hence, he believes that his
dismissal from employment stemmed from his filing of the complaint with the

Private respondent, in turn, questions the propriety of the instant certiorari

ITF which his superiors resented.[34]
petition and avers that the issues raised by petitioner can only be dealt with
under Rule 45 of the Rules of Court.[31] Against this thesis, petitioner
Private respondent insists that the appellate court is correct in considering
submits that the acceptance of the petition is addressed to the sound
the fax messages as res gestae statements. It likewise emphasizes that nondiscretion of this Court.[32]
presentment of the logbook is justified as the same could no longer be
retrieved because Hansu has already ceased to be its principal. Furthermore,
The proper remedy to assail decisions of the Court of Appeals involving final
it refutes the allegation of petitioner that he was dismissed because he filed a
disposition of a case is through a petition for review under Rule 45. In this
complaint with the ITF in behalf of his fellow crew members. It claims that
case,

petitioner

filed

instead

certiorari

petition

under

Rule
petitioners allegation is a hoax because there is no showing that the alleged

65. Notwithstanding this procedural lapse, this Court resolves to rule on the
complaint has been received by the ITF and that no action thereon was ever
merits of the petition in the interest of substantial justice,[33]the underlying
taken by the ITF.[35]
consideration in this petition being the arbitrary dismissal of petitioner from
employment.

Private respondent also asserts that petitioner was not dismissed but that he
voluntarily asked for his repatriation. This assertion, however, deserves scant

consideration. It is highly illogical for an employee to voluntarily request for

repatriation and then file a suit for illegal dismissal. As voluntary repatriation
is synonymous to resignation, it is proper to conclude that repatriation is
JUST RECEIVED PHONE CALL FROM MASTER N C/OFFICER
THAT
THEY
DECIDED
TO
DISCHARGE
2/OFFICER
AT OSAKA PORT.

inconsistent with the filing of a complaint for illegal dismissal.[36]

DUE TO MIS-BEHAVIOUR N RESEST [SIC] TO OFFICIAL ORDER.

The paramount issue therefore boils down to the validity of petitioners
dismissal, the determination of which generally involves a question of fact. It
is not the function of this Court to assess and evaluate the facts and the

CAPT.
HAD
RECEIVED EMERGENCY
WARNING
CALL
FROM JAPAN BISAN SETO NAIKAI RADIO AUTHORITY THAT
SHIP IS INVADING OTHER ROUTE.
SO, HE WAS SURPRISED N CAME TO BRIDGE N FOUND 2/O
NOT CARRY OUT HIS WATCH DUTY.

evidence again, our jurisdiction being generally limited to reviewing errors of

law that might have been committed by the trial court or administrative

MASTER SCOLD HIM ABOUT THIS N CORRECT HIS ERROR BUT

HE RESIST [SIC] THAT HE IS RIGHT AND THEN SAID THAT HE
WILL COME BACK HOME.

agency. Nevertheless, since the factual findings of the Court of Appeals and
the Labor Arbiter are at variance with those of the NLRC, we resolve to
evaluate the records and the evidence presented by the parties.[37]

FURTHER MORE HE ASKED MASTER TO PAY HIM I.T.F. WAGE

SCALE.
MASTER N/CIO STRONGLY ASKED US HIS REPATRIATION WITH
I.E.U.

The validity of an employee's dismissal hinges on the satisfaction of two

PLS. CONFIRM YOUR OPINION ON THIS HAPPENING.[39]
substantive requirements, to wit: (1) the dismissal must be for any of the
causes provided for in Article 282 of the Labor Code; and (2) the employee
was accorded due process, basic of which is the opportunity to be heard and
The second fax message dated 20 January 1997 pertained to a report of crew
to defend himself.[38]
discharge essentially containing the same information as the first fax
message. The Court of Appeals treated these fax messages as part of the res
The Labor Arbiter held that petitioners absence during his watch duty when
gestae proving neglect of duty on the part of petitioner.
an

emergency

call

was

received

from

the

Japanese

port

authority

that M/V Phoenix Seven was invading other route constituted neglect of duty,
a just cause for terminating an employee. Records reveal that this
information was related to private respondent via two fax messages sent by
the captain of M/V Phoenix Seven. The first fax message dated 18 January
1997 is reproduced below:

significance to the equivocal act.[43]

Petitioners alleged absence from watch duty is simply an innocuous act or at
Section 42 of Rule 130[40] of the Rules of Court mentions two acts which

least proved to be one. Assuming arguendo that such absence was the

form part of the res gestae, namely: spontaneous statements and verbal

equivocal act, it is nevertheless not accompanied by any statement more so

acts. In spontaneous exclamations, the res gestae is the startling occurrence,

by the fax statements adverted to as parts of the res gestae. No date or time

whereas in verbal acts, the res gestae are the statements accompanying the

has been mentioned to determine whether the fax messages were made

equivocal act.[41] We find that the fax messages cannot be deemed part

simultaneously with the purported equivocal act.

of the res gestae.

Furthermore, the material contents of the fax messages are unclear. The
matter of route encroachment or invasion is questionable. The ship master,
To be admissible under the first class of res gestae, it is required that: (1) the
who is the author of the fax messages, did not witness the incident. He
principal act be a startling occurrence; (2) the statements were made before
obtained such information only from the Japanese port authorities. Verily, the
the declarant had the time to contrive or devise a falsehood; and (3) that the
messages can be characterized as double hearsay.
statements must concern the occurrence in question and its immediate
attending circumstances.[42]

Assuming that petitioners negligencewhich allegedly caused the ship to

deviate from its courseis the startling occurrence, there is no showing that
the statements contained in the fax messages were made immediately after
the alleged incident. In addition, no dates have been mentioned to determine
if

these

utterances

were

made

spontaneously

or

with

careful

deliberation. Absent the critical element of spontaneity, the fax messages

cannot be admitted as part of the res gestae of the first kind.
Neither will the second kind of res gestae apply. The requisites for its
admissibility are: (1) the principal act to be characterized must be equivocal;
(2) the equivocal act must be material to the issue; (3) the statement must
accompany the equivocal act; and (4) the statements give a legal

procedure

taken

against

the

employees

prior

to

their

dismissal.

In any event, under Article 282 of the Labor Code,[44] an employer may

[49] In Wallem Maritime Services, Inc. v. NLRC,[50] the logbook is a vital

terminate an employee for gross and habitual neglect of duties. Neglect of

evidence as Article 612 of the Code of Commerce requires the ship captain to

duty, to be a ground for dismissal, must be both gross and habitual. Gross

keep a record of the decisions he had adopted as the vessel's head.

negligence connotes want of care in the performance of ones duties.

[51] Therefore, the non-presentation of the logbook raises serious doubts as

Habitual neglect implies repeated failure to perform ones duties for a period

to whether the incident did happen at all.

of time, depending upon the circumstances. A single or isolated act of

negligence does not constitute a just cause for the dismissal of the

In termination cases, the burden of proving just or valid cause for dismissing

employee.[45]

an employee rests on the employer.[52] Private respondent miserably failed

to discharge this burden. Consequently, the petitioners dismissal is illegal.

Petitioners supposed absence from watch duty in a single isolated instance is

neither gross nor habitual negligence. Without question, the alleged lapse did
not result in any untoward incident. If there was any serious aftermath, the

We also note that private respondent failed to comply with the procedural

incident should have been recorded in the ships logbook and presented by

due process requirement for terminating an employee. Such requirement is

private respondent to substantiate its claim.Instead, private respondent

not a mere formality that may be dispensed with at will. Its disregard is a

belittled the probative value of the logbook and dismissed it as self-

matter of serious concern since it constitutes a safeguard of the highest order

serving. Quite the contrary, the ships logbook is the repository of all activities

in response to man's innate sense of justice. The Labor Code does not, of

and transactions on board a vessel. Had the route invasion been so serious as

course, require a formal or trial type proceeding before an erring employee

to merit petitioners dismissal, then it would have been recorded in the

may be dismissed. This is especially true in the case of a vessel on the ocean

logbook. Private respondent would have then had all the more reason to

or in a foreign port. The minimum requirement of due process in termination

preserve it considering that vital pieces of information are contained therein.

proceedings, which must be complied with even with respect to seamen on

board a vessel, consists of notice to the employees intended to be dismissed

In Haverton Shipping Ltd. v. NLRC,[46] the Court held that the vessels
and the grant to them of an opportunity to present their own side of the
logbook is an official record of entries made by a person in the performance
alleged offense or misconduct, which led to the management's decision to
of a duty required by law.[47] In Abacast Shipping and Management Agency,
terminate. To meet the requirements of due process, the employer must
Inc. v. NLRC,[48] a case cited by petitioner, the logbook is a respectable
furnish the worker sought to be dismissed with two written notices before
record that can be relied upon to authenticate the charges filed and the
termination of employment can be legally effected, i.e., (1) a notice which

apprises the employee of the particular acts or omissions for which his
dismissal is sought; and (2) the subsequent notice after due hearing which
informs the employee of the employers decision to dismiss him.[53]

Private respondents sole reliance on the fax messages in dismissing

petitioner is clearly insufficient as these messages were addressed only to
itself. No notice was ever given to petitioner apprising him in writing of the
particular acts showing neglect of duty. Neither was he informed of his
dismissal from employment. Petitioner was never given an opportunity to
present his side. The failure to comply with the two-notice rule only
aggravated respondents liability on top of dismissing petitioner without a
valid cause.
Pursuant to Section 10 of Republic Act No. 8042[54] or the Migrant Workers
Act, employees who are unjustly dismissed from work are entitled to an
amount representing their three (3) months salary considering that their
employment contract has a term of exactly one (1) year plus a full refund of
his placement fee, with interest at 12% per annum.[55]

(Esoy), Rolando Ciano y Soledad (Ciano), and Roger Bolalacao y Dadivas

(Bolalacao) were charged as follows:
IN LIGHT OF THE FOREGOING, the petition is GRANTED. The Decision of the
Court

of

Appeals

is

REVERSED

and

SET

ASIDE. The Decision of the NLRC isREINSTATED with the MODIFICATION that in
addition to the payment of the sum equivalent to petitioners three (3)
months salary, the full amount of placement fee with 12% legal interest must
be refunded.

SO ORDERED.

That on or about January 18, 2001, in the City of Manila,

Philippines, the said accused, conspiring and confederating
together and helping one another, with intent to gain and by
means of force, violence against and intimidation, that is, by
boarding a passenger jeepney pretending to be paying
passengers, suddenly pulling out their deadly bladed
weapons, stabbing on the chest one LORENZO CORO Y
BARREDO, a paying passenger, and grabbing his cellphone
worth P7,000.00, Philippine currency, did then and there
willfully, unlawfully and feloniously take, rob and carry away
the said cellphone of Lorenzo B. Coro against his will, to the
damage and prejudice of the latter in the same sum as
aforesaid; that by reason and on the occasion of the said
robbery the said Lorenzo B. Coro, sustained fatal stab wounds
which were the direct cause of his death immediately
thereafter.
CONTRARY TO LAW.

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,

G.R. No. 185849

At the arraignment, appellants pleaded not guilty.[4] Trial thereafter ensued. The
prosecution presented three (3) witnesses: Andrea Pabalan, SPO1 Raul Olavario
and Medico-Legal Officer Dr. Filemon C. Porciuncula. Taken altogether, the
evidence for the prosecution established the following facts:

Present:

- versus -

PUNO, C.J., Chairperson,

CARPIO MORALES,
LEONARDO-DE CASTRO,
BERSAMIN, and
VILLARAMA, JR., JJ.

JONJIE ESOY y HUNGOY, ROLANDO CIANOPromulgated:

y SOLEDAD and ROGER BOLALACAO y DADIVAS,
Accused-Appellants.
April 7, 2010
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
VILLARAMA, JR., J.:

The present appeal assails the Decision[1] dated April 30, 2008 of the Court
of Appeals in CA-G.R. HC-CR No. 02701 affirming the February 27, 2007
Decision[2] of the Regional Trial Court (RTC) of Manila, Branch 54, convicting
appellants of the crime of robbery with homicide.
In an Information[3] dated February 2, 2001, appellants Jonjie Esoy y Hungoy

On January 18, 2001, around 8:00 p.m., the victim Lorenzo Coro and Andrea
Pabalan (Pabalan), rode a jeepney bound for Buendia Avenue at Taft
Avenue corner T.M.
Kalaw
Street in Manila.
Upon
reaching Taft
Avenue corner Pedro Gil Street, Ermita, Manila, appellants boarded the
jeepney. Bolalacao sat beside the victim while Esoy and Ciano sat on the
opposite side. Pabalan noticed that Esoy and Ciano were staring at all the
passengers. Feeling apprehensive, she moved beside the victim and
whispered to him that she did not like the way the two (2) were staring at
them. Esoy and Ciano also seemed to be high on drugs, so she told the victim
not to look at them. When she again looked at Esoy and Ciano, the two (2)
suddenly drew out their balisongs and swung the same at them. In the
ensuing commotion, the other passengers including appellants alighted from
the jeepney. When Pabalan told the victim that they should go down, she saw
the victims bloodied chest. She then shouted for help and that they be taken
to the hospital. The jeepney driver, however, told them to alight from the
vehicle. Fearing that the victim might run out of blood, she told him that they
should go down. The victim then told her that his cellular phone was
snatched and asked her where appellants fled. Pabalan just insisted that they
alight from the vehicle and not to worry about his cellular phone. Upon
alighting from the jeepney, the victim fell down after a few steps. But with
the help of two (2) motorcyclists, they were able to hail an FX taxi and the
victim was immediately brought to the nearby Philippine General Hospital
(PGH) where he was operated on. Unfortunately, however, the victim died
at 11:00 p.m. that same night.

On January 19, 2001, around 2:00 a.m., SPO1 Raul Olavario, Police
Investigator of the Homicide Division of the Western Police District
(WPD), Manila, received information from retired Police Inspector Cesar
Diokno about a stabbing victim who expired at the PGH. SPO1 Olavario then
proceeded at the PGH to investigate. The hospital guard told him about
the robbery with homicide that occurred on January 18, 2001 inside a
passenger jeepney along Taft Avenue. At that time, Pabalan had already left
the hospital but she went to SPO1 Olavarios office later in the morning the
same day to give her sworn statement and the description of the assailants.
Several days after, or on January 31, 2001, Pabalan informed SPO1 Olavario
that she saw the three (3) appellants inside the WPD jail and positively
identified them as the assailants.
PNP Crime Laboratory Police Senior Inspector and Medico-Legal Officer Dr.
Filemon C. Porciuncula testified on the autopsy he performed on the cadaver
of the victim and the Medico-Legal Report No. M-0208-01[5] he submitted.
The autopsy revealed that the victim sustained a stab wound and multiple
abrasions on the right knee.
Appellants, for their part, denied any involvement in the robbery-homicide
incident. They claimed that they were at their workplace in Bacood, Sta.
Mesa, Manila, when the incident happened. Both Ciano and Esoy testified
that they started working at 8:00 a.m. until 5:00 p.m. of January 18, 2001.
They rested for a while and resumed working with intermittent rests until five
(5) oclock the following morning of January 19, 2001. As to Bolalacao, he
claimed to be working from 7:00 a.m. of January 18, 2001 up to 5:00 a.m.the
following morning of January 19, 2001.
Lauro Dela Cruz, supervisor of appellants, was called to testify to corroborate
appellants defense. Though Dela Cruz recognized the faces of the appellants
as among those who have worked under him, he could not categorically state
that they were at the workplace at the times and dates they specified
because he was not there all the time and he does not keep time records.
On February 27, 2007, the trial court rendered a Decision finding appellants
guilty of the crime of robbery with homicide, as follows:
WHEREFORE, finding accused Jonjie Esoy y Hungoy, Rolando
Ciano y Soledad, and Roger Bolalacao y Dadivas all GUILTY
BEYOND REASONABLE DOUBT of the complex crime of
Robbery with Homicide defined and penalized under Articles
293 and 294 (1) of the Revised Penal Code, as recently
amended by Republic Act No. 9346, the aforenamed accused
are each sentenced to suffer the penalty of Reclusion
Perpetua and shall indemnify the heirs of Lorenzo Coro in the
amount of One Hundred Fifty Thousand (P150,000.00) Pesos
as actual and compensatory damages and the further sum of
Seventy-Five Thousand (P75,000.00) Pesos as moral
damages.

SO ORDERED.[6]

On April 30, 2008, the Court of Appeals affirmed with modification the RTC
decision as follows:
WHEREFORE, the appeal is DISMISSED. The Decision of the
Regional Trial Court, Branch 54, Manila is AFFIRMED. The trial
courts award of civil liability is hereby MODIFIED. Appellants
JONJIE ESOY y HUNGOY, ROLANDO CIANO y SOLEDAD and
ROGER BOLALACAO y DADIVAS are each ordered to pay the
heirs of Lorenzo Coro the following sums: (a) One Hundred
Fifty Thousand (P150,000.00) as actual damages; (b) Fifty
Thousand Pesos (P50,000.00) ex delicto; and (c) Fifty
Thousand Pesos (P50,000.00) as moral damages.
SO ORDERED.[7]

Hence, this appeal.

On February 18, 2009, the Court directed the parties to file their respective
supplemental briefs if they desire.[8] Both appellants[9] and the Solicitor
General,[10] however, manifested that they are dispensing with the filing of
a supplemental brief as their positions have already been assiduously
discussed before the appellate court. Thus, the errors raised in appellants
Brief[11] dated July 24, 2007 are now deemed adopted in this present
appeal. Appellants raise the following errors:
I.
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE
ACCUSED-APPELLANTS ALTHOUGH THEIR IDENTITIES AS THE
PERPETRATORS
WERE
NOT
ESTABLISHED
BEYOND
REASONABLE DOUBT.
II.
THE TRIAL COURT GRAVELY ERRED IN GIVING SCANT
CONSIDERATION TO THE EVIDENCE PRESENTED BY THE
ACCUSED-APPELLANTS WHICH IS MORE CREDIBLE THAN THAT
OF THE PROSECUTIONS.
III.
ASSUMING THAT THE APPELLANTS ARE GUILTY, THE TRIAL
COURT GRAVELY ERRED IN CONVICTING THEM OF ROBBERY
WITH HOMICIDE NOTWITHSTANDING THE FACT THAT
ROBBERY WAS NOT PROVEN BEYOND REASONABLE DOUBT.
IV.
THE TRIAL COURT SERIOUSLY ERRED IN HOLDING THAT
CONSPIRACY EXISTED BETWEEN AND AMONG THE ALLEGED
PERPETRATORS.
V.

THE TRIAL COURT GRAVELY ERRED IN AWARDING ACTUAL

AND MORAL DAMAGES NOTWITHSTANDING THE FACT THAT
THERE WAS NO BASIS FOR ITS GRANT.[12]

before their eyes, eyewitnesses can remember with a high degree of reliability
the identity of criminals at any given time.[18]

Essentially, the issue for our resolution is whether the guilt of the appellants
for the crime of robbery with homicide has been proven beyond reasonable
doubt.

As to appellants defense of alibi, it cannot prevail over the positive

identification of appellants as the perpetrators of the crime, especially in the

Appellants contend that their identities as perpetrators of the crime were not
established beyond reasonable doubt. They argue that even if at the time of
the incident there were many light posts along Taft Avenue, the same cannot
produce enough illumination inside the vehicle to allow Pabalan to see clearly
the faces of the assailants. The small bulb inside the jeepney simply cannot
be considered as sufficient source of light to enable Pabalan to identify and
remember the facial features of a total stranger. Further, several days had
passed before Pabalan made the identification during the police line-up and
thus, it was impossible for her to have easily remembered the faces of the
assailants whom she supposedly saw on only one (1) occasion.
We are not persuaded.
As narrated by Pabalan, two (2) of the appellants Esoy and Ciano sat infront
of them while the other, Bolalacao, sat beside the victim. Considering the
limited space inside a passenger jeepney, the faces of appellants can be
easily seen by Pabalan in close range. Moreover, it is of no moment that the
inside of a jeepney was only illuminated by a small bulb. The said kind of light
has already been held by the Court as enough lighting for identification
purposes.[13] Considering also the busy thoroughfare of Taft Avenue, Ermita,
light emanating from the headlights of passing vehicles can contribute
sufficient illumination[14] to enable Pabalan to identify appellants. We have
held that when conditions of visibility are favorable, and the witness does not
appear to be biased, as in the instant case, her assertion as to the identity of
the malefactors should normally be accepted.[15]

Furthermore, the reliability of Pabalans memory should not be doubted by the

mere fact that identification of the appellants at the police line-up happened
several days after the incident. It is known that the most natural reaction of a

face of categorical statements coming from a credible witness who has no ill
motives in testifying.[19] Pabalans testimony was straightforward and
though she became emotional during the middle part of her testimony, she
remained consistent all through out even on cross-examination. Appellants
have also not shown any reason for Pabalan to testify falsely against them.
To establish alibi, an accused must prove (a) that he was present at another
place at the time the crime was perpetrated, and (b) that it was physically
impossible for him to be at the scene of the crime. Physical impossibility
refers to the distance between the place where the accused was when the
crime transpired and the place where it was committed, as well as the facility
of access between the two places.[20] Here, appellants failed to satisfy the
said requisites, especially the second. The crime happened along Taft
Avenue, Ermita, while appellants claimed to be in their workplace in Bacood,
Sta. Mesa, at that time. The distance between Ermita and Sta. Mesa cannot
be said as too far that it was physically impossible for appellants not to be at
Ermita, the scene of the crime. Even the testimony of their immediate
supervisor did not help in establishing their defense since Dela Cruz could not
categorically state that appellants were at the workplace at the time and
date the crime was committed.
Appellants next argue that (1) no evidence was presented by the prosecution
establishing that personal property was taken from the victim except for the
hearsay allegation of Pabalan; and (2) no witness testified that the victim or
Pabalan actually saw one (1) of the appellants take something from the
victim. The contentions, however, are likewise without merit.
The pertinent portion of Pabalans testimony is hereunder quoted verbatim:

witness to a crime is to strive to look at the appearance of the perpetrator and

to observe the manner in which the offense is perpetrated.[16] Most often the

which cannot be easily erased from a witnesss memory.[17]Experience

Witness:
q What about Lorenzo Coro, do you know before this
just at the moment you had this jeepney ride, do you
know if he had a cellular phone?
a Yes, sir, it was clipped on the right side of his waist.

dictates that precisely because of the unusual acts of violence committed right

Court:

face of the assailant and body movements thereof, create a lasting impression

Clipped at the?

phone was snatched; and (3)

Court Interpreter:

question and its immediately attending circumstances his cellular phone was

Right side of the waist.

stolen during the startling occurrence. The testimony being an exception to the

Fiscal Carisma:
(continuing)

hearsay rule, the trial court did not err in admitting the same.

q Try to recall, Madam Witness, what else, if any, did

you see at the moment that these two (2) male
persons who were seated in front of you motioned to
the point that they drew out their balisong and
lunged the same towards you and any other
direction. What else, if any, did you see in relation to
Lorenzo Coro?

Appellants also dispute the finding of conspiracy among them. They contend
that the mere fact that they boarded the jeepney at the same time does not
necessarily mean that they acted in conspiracy. Again, we are unconvinced.

Witness:
(continuing)
a After the commotion, when I was about to
alight from the jeep, he told me that my
cellular phone was snatched. I told him lets go.
He asked me where did they run? I told him not
to bother about that and lets go to the
hospital.[21] [Emphasis and underscoring supplied.]
Though Pabalans testimony as to the victims utterance that his cellular phone
was taken is only hearsay, the testimony is considered an exception to the
hearsay rule, the victims spontaneous utterance being part of res gestae.

the statement concerns the occurrence in

Conspiracy may be deduced from the acts of the appellants before, during, and
after the commission of the crime which are indicative of a joint purpose,
concerted action, and concurrence of sentiments.[23] All three (3) appellants
boarded the jeepney at the same time. Two (2) strategically sat infront of the
victim and Pabalan while the other sat beside the victim. A few moments later,
two (2) of the appellants (Esoy and Ciano) suddenly drew out their balisongs and
swung the same at Pabalan and the victim. In the ensuing commotion, the
victims cellular phone was snatched and he was stabbed in the process. The
appellants then hurriedly alighted from the jeepney at the same time. Their
original and principal intention was undoubtedly to stage a robbery with the use
of violence. As conspiracy had been established among appellants, all of them
are liable as co-principals regardless of the manner and extent of their
participation since, in point of law, the act of one (1) is the act of all.
Lastly, appellants challenge the award of actual damages claiming it was not
proven for failure to present any documentary evidence particularly the proof
of funeral expenses.

Res gestae refers to those exclamations and statements made by either the
participants, the victim or spectator to a crime immediately before, during or

The argument is without merit.

immediately after the commission of the crime, when the circumstances are

Article 2199 of the Civil Code is clear:

such that the statements were made as a spontaneous reaction or utterance

inspired by excitement of the occasion and there was no opportunity for the
declarant to deliberate and to fabricate a false statement.[22] In the instant

ART. 2199. Except as provided by law or by stipulation,

one is entitled to an adequate compensation only for such
pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory
damages. [Emphasis and underscoring supplied.]

case, all the elements of res gestae are sufficiently established insofar as the
aforequoted spontaneous utterance is concerned: (1) the principal act (res

The defense has stipulated during the trial that the victims family
incurred P150,000 for funeral expenses, to wit:

gestae) the robbery and stabbing of the victim is a startling occurrence; (2)
Fiscal Carisma:
the statements were made before the declarant had time to contrive or
devise, that is, within minutes after the victim was stabbed and his cellular

The wife of the deceased is here, your Honor.

Anyway, she will only testify on the civil liability. To
abbreviate the proceedings, may we respectfully

stipulate from the counsel for the accused that should

all the accused be found guilty by the honorable
court, the civil liability be fixed, it representing actual
expenses for the burial expenses of Lorenzo Coro
to P150,000.00.

Fiscal Carisma:
Thank you. So, we will no longer be presenting
the witness.[24] [Emphasis and underscoring
supplied.]

Atty. Fontanilla:
We object to the manifestation, your Honor.
Fiscal Carisma:

Hence, the requirement of proof in Article 2199 for the recovery of actual and
compensatory damages can be dispensed with having been stipulated by the
defense during trial.

Should the accused be found guilty.

Atty. Fontanilla:

As to the other civil liabilities, we uphold the appellate courts award of the
moral damages of P50,000 and civil indemnity of P50,000 in line with
prevailing jurisprudence.[25]

We dont stipulate, your Honor.

Fiscal Carisma:
Thats why I am stating that should all the accused be
found guilty. So, we rather prove the actual expenses.
Court:
q Anyway, how many days was the wake of the
deceased?
Witness:
a Ten (10) days, your Honor.
Court:
q Where was the funeral held?

The penalty imposed is likewise proper. The special complex crime of robbery
with homicide is punished under Article 294 (as amended by Republic Act No.
7659) of theRevised Penal Code, as amended, by reclusion perpetua to
death. Article 63 of the Revised Penal Code, as amended, states that when
the law prescribes a penalty consisting of two (2) indivisible penalties, and
the crime is neither attended by mitigating nor aggravating circumstances,
the lesser penalty shall be imposed. Considering that no modifying
circumstance attended the commission of the crime, the RTC correctly
sentenced the appellants to suffer the penalty of reclusion perpetua.
WHEREFORE, the April 30, 2008 Decision of the Court of Appeals in CA-G.R.
HC-CR No. 02701 is AFFIRMED in toto.
With costs against the accused-appellants.
SO ORDERED.

Witness:
a We brought the body at the province at the house
of my mother, your Honor.

[G.R. No. 140023. August 14, 2003]

Atty. Fontanilla:

RUDY

Your Honor, with the premise that they spent

for the burial and funeral, I think we can
stipulate in the amount of ---

DECISION

Fiscal Carisma:

LAO, petitioner, vs.

INC., respondent.

STANDARD

INSURANCE

CO.,

QUISUMBING, J.:

P150,000.00
Atty. Fontanilla:
More or less, yes, we stipulate, your Honor.

The instant petition seeks the reversal of the Court of Appeals

Decision[1] dated February 4, 1999, as well as its Resolution,[2] dated
September 7, 1999, in CA-G.R. CV No. 47227. The assailed decision dismissed
petitioners appeal and the resolution denied petitioners motion for

reconsideration.
The original action was lodged before the Regional Trial Court of Iloilo
City, Branch 25, as Civil Case No. 17045 for breach of contract and damages,
as a result of the insurance companys refusal of petitioners claim on the
insurance policy of his truck which figured in an accident during the
effectivity of the policy.
The following are the antecedent facts:
Petitioner Rudy Lao is the owner of a Fuso truck with Plate No. FCG-538.
The truck was insured with respondent Standard Insurance Co., Inc. under
Policy No. CV-21074[3] for the maximum amount of P200,000 and an
additional sum of P50,000 to cover any damages that might be caused to his
goods.
While the policy was in effect, an accident occurred. At around 8:00 p.m.
of April 24, 1985, in Barangay Buhang, Jaro, Iloilo City, the insured truck
bumped another truck, with Plate No. FBS-917, also owned by petitioner Lao.
The latter truck was running ahead of the insured truck and was bumped
from the rear. The insured truck sustained damages estimated to be
around P110,692, while the damage to the other truck and to properties in
the vicinity of the accident, were placed at P35,000 more or less.
Petitioner filed a claim with the insurance company for the proceeds
from his policy. However, the claim was denied by the insurance company on
the ground that when its adjuster went to investigate the matter, it was found
that the driver of the insured truck, Leonardo Anit, did not possess a proper
drivers license at the time of the accident. The restriction[4] in Leonardo
Anits drivers license provided that he can only drive four-wheeled vehicles
weighing not more than 4,500 kgs. Since the insured truck he was driving
weighed more than 4,500 kgs., he therefore violated the authorized driver
clause[5] of the insurance policy. In addition, respondent cited the following
excerpts from the police blotter of the Iloilo INP, to wit:
C-UN-85 DAMAGE TO PROPERTY W/ PHY INJURIES R/ IMPRUDENCE
11:30 PM Sgt. A. Bernas informed this office that a collision took place at
Brgy. Buhang, Jaro, IC. Investigation conducted by Pat. Villahermosa, assisted
by Lt. P. Baclaron (OD), disclosed that at about 8:00 PM this date at the
aforementioned place, a collision took place between a truck (Hino) with Plate
Nr FB[S] 917 owned by Rudy Lao and driven by BOY GIDDIE Y COYEL, 38 yrs,
a res. of Balasan, Iloilo, with License Nr DLR 1108142 and another truck with
Plate Nr. FCG-538 owned by Rudy Lao and driver (sic) by LEONARDO ANIT Y
PANES, 33 yrs, a res. of Brgy Laya, Balasan, Iloilo with License Nr 1836482.
(Emphasis supplied.)[6]
Petitioner claims that at the time of the accident, it was in fact another
driver named Giddie Boy Y Coyel who was driving the insured truck. Giddie
Boy possessed a drivers license authorizing him to drive vehicles such as the
truck which weighed more than 4,500 kgs. As evidence, petitioner presented
the Motor Vehicle Accident Report[7] wherein the Investigating Officer, Pat.
Felipe D. Villahermosa, stated that it was Giddie Boy driving the insured truck

and not Leonardo Anit. The said report was made three days after the
accident or on April 27, 1985. However, respondent insurance company was
firm in its denial of the claim.
Hence, petitioner filed the civil case before the RTC. After trial, the court
disposed of the case as follows:
WHEREFORE, premises considered, the Court finds that plaintiff lacks
sufficient cause of action against the defendant and hence ordered his case
dismissed and further orderes (sic) him to pay the defendant the following:
1) P20,000.00 as attorneys fees plus P500.00 for appearance fee; and
2) P50,000.00 as exemplary damages.
SO ORDERED.[8]
On appeal with the Court of Appeals, the RTC decision was affirmed. The
petition was dismissed and the motion for reconsideration was denied. The
CA stated:
IN VIEW OF THE FOREGOING, the decision appealed from is hereby
AFFIRMED. Consequently, the complaint is DISMISSED for lack of merit.
SO ORDERED.[9]
In his petition for review now before us, petitioner cites the following as
grounds therefor:
A. THE HONORABLE COURT OF APPEALS AND THE LOWER COURT
RELIED MAINLY ON SECTION 44, RULE 130 OF THE RULES OF
COURT IN UPHOLDING THE ENTRY IN THE POLICE BLOTTER
WHICH STATED THAT THE DRIVER OF THE INSURED VEHICLE
WAS LEONARDO ANIT Y PANES, WHO WAS NOT AN AUTHORIZED
DRIVER. UNDER THE SAID SECTION 44, RULE 130 ITSELF
HOWEVER, THE POLICE BLOTTER IS MERELY A PRIMA FACIE
EVIDENCE OF THE FACTS STATED THEREIN WHICH MAY BE
NULLIFIED BY OTHER EVIDENCE;[10]
B. PERCEPTION OF THE HONORABLE COURT OF APPEALS ON THE
DIMINISHED CREDIBILITY OF PAT. FELIPE VILLAHERMOSA, THE
TRAFFIC
POLICE
INVESTIGATOR,
IS
MISPLACED
AND
UNFOUNDED;[11]
C. THE DRIVER OF THE INSURED TRUCK WITH PLATE NR. FCG-538
WAS GIDDIE BOY Y COYEL, AN AUTHORIZED DRIVER OF THE SAID
TRUCK. THE DRIVER OF THE OTHER TRUCK INVOLVED IN THE
ACCIDENT WITH PLATE NR. FBS-917 WAS LEONARDO ANIT Y
PANES;[12]
D. THE HONORABLE COURT OF APPEALS MISAPPLIED ARTICLES 2232
AND 2208 OF THE NEW CIVIL CODE IN GRANTING EXEMPLARY
DAMAGES AND ATTORNEYS FEES TO RESPONDENT. UNDER
ARTICLES 2229 AND 2234 OF THE NEW CIVIL CODE, EXEMPLARY

DAMAGES CANNOT BE AWARDED IN THE ABSENCE OF AN

AWARD
FOR
MORAL,
TEMPERATE,
LIQUIDATED
OR
COMPENSATORY DAMAGES;[13]

competent evidence.[21] Although police blotters are of little probative value,

they are nevertheless admitted and considered in the absence of competent
evidence to refute the facts stated therein.

E. TESTIMONIES OF THE WITNESSES OF RESPONDENT NAMELY, SGT.

BERNAS, THE DESK OFFICER AND ROMEO GUIERGEN,
INSURANCE ADJUSTER, WERE INCONSISTENT AND UNRELIABLE;
[14] and

In this case, the entries in the police blotter reflected the information
subject of the controversy. Stated therein was the fact that Leonardo Anit was
driving the insured truck with plate number FCG-538. This is unlike People v.
Mejia,[22] where we said that entries in the police blotters should not be
given undue significance or probative value, since the Court there found that
the entries in question are sadly wanting in material particulars.

F. THE HONORABLE COURT OF APPEALS UPHELD THE DECISION OF

THE LOWER COURT DESPITE GLARING MISAPPLICATION OF THE
LAW AND JURISPRUDENCE ESTABLISHED BY THIS HONORABLE
SUPREME COURT AS WELL AS CLEAR MISAPPREHENSION OF THE
FACTS IN THIS CASE.[15]
Three issues must be resolved: (1) The admissibility and probative value
of the police blotter as evidence; (2) The assessment of the credibility of
witnesses; and (3) The propriety and basis of the awards for exemplary
damages and attorneys fees. Also pertinent here is the factual issue of
whether or not Leonardo Anit, an unauthorized driver, was driving the insured
truck at the time of the accident.
Petitioner assails the admissibility and evidentiary weight given to the
police blotter, as a basis for the factual finding of the RTC and the CA. He
contends that the same entry was belied by the Motor Vehicle Accident
Report and testimony of the investigating policeman himself, attesting that it
was Giddie Boy Coyel, not Leonardo Anit, who was driving the insured
vehicle.[16]
Respondent avers that the same police report and testimony were of
dubious nature. Both trial and appellate courts noted that the report was
made three days after the accident and did not form part of the official police
records.[17]
The police blotter was admitted under Rule 130, Section 44 of the Rules
of Court.[18] Under the said rule, the following are the requisites for its
admissibility:
(a) that the entry was made by a public officer, or by another person,
specially enjoined by law to do so;
(b) that it was made by the public officer in the performance of his duties, or
by such other person in the performance of a duty specially enjoined by law;
(c) that the public officer or other person had sufficient knowledge of the
facts by him stated, which must have been acquired by him personally or
through official information.[19]
We agree with the trial and appellate courts in finding that the police
blotter was properly admitted as they form part of official records.[20] Entries
in police records made by a police officer in the performance of the duty
especially enjoined by law are prima facie evidence of the fact therein stated,
and their probative value may be either substantiated or nullified by other

Furthermore, in this case the police blotter was identified and formally
offered as evidence. The person who made the entries was likewise
presented in court; he identified and certified as correct the entries he made
on the blotter. The information was supplied to the entrant by the
investigating officer who did not protest about any inaccuracy when the
blotter was presented to him. No explanation was likewise given by the
investigating officer for the alleged interchange of names.
Petitioner also assails the credence given by the trial court to the version
of the respondents vis--vis the testimonies of the witnesses. Time and again
we have reiterated the settled doctrine that great weight, and even finality, is
given to the factual conclusions of the Court of Appeals which affirm those of
the trial courts.[23] We find on this score no reason to overturn such
conclusions.
On the issue of damages, we agree with petitioner that the award of
exemplary damages was improper. In Tiongco v. Atty. Deguma[24] we held
that the entitlement to the recovery of exemplary damages must be shown.
In the case at bar, respondent have not shown sufficient evidence that
petitioner indeed schemed to procure the dubious documents and lied
through his teeth to establish his version of the facts. What was found was
that the document he presented was inadmissible, and its contents were
dubious. However, no proof was adduced to sufficiently establish that it came
to his hands through his employment of underhanded means. In Tiongco, we
further stated:
Although exemplary damages cannot be recovered as a matter of right, they
also need not be proved. But a complainant must still show that he is entitled
to moral, temperate or compensatory damages before the court may
consider the question of whether or not exemplary damages should be
awarded.[25]
Thus, it was error for the courts below to award exemplary damages in
the absence of any award for moral, temperate or compensatory damages.
The award of attorneys fees must also be deleted. Such award was given
in its extraordinary concept as indemnity for damages to be paid by the
losing party to the prevailing party.[26]But it was not sufficiently shown that
petitioner acted maliciously in instituting the claim for damages. Perforce, the
award of attorneys fees was improper.

WHEREFORE, the assailed Decision and Resolution of the Court of

Appeals are AFFIRMED, with the MODIFICATION that the award of exemplary
damages and attorneys fees is hereby DELETED. No pronouncement as to
costs.
SO ORDERED.

[G.R. No. 96202. April 13, 1999]

ROSELLA D. CANQUE, petitioner, vs. THE COURT OF APPEALS
and SOCOR CONSTRUCTION CORPORATION, respondents.
DECISION
MENDOZA, J.:
This petition for review on certiorari seeks a reversal of the decision[1] of
the Court of Appeals affirming the judgment[2] of the Regional Trial Court of
Cebu City ordering petitioner . . . to pay [private respondent] the principal sum of Two Hundred Ninety Nine
Thousand Seven Hundred Seventeen Pesos and Seventy Five Centavos
(P299,717.75) plus interest thereon at 12% per annum from September 22,
1986, the date of the filing of the complaint until fully paid; to pay [private
respondent] the further sum of Ten Thousand Pesos (P10,000.00) for
reasonable attorneys fees; to pay the sum of Five Hundred Fifty Two Pesos
and Eighty Six Centavos (P552.86) for filing fees and to pay the costs of
suit. Since [private respondent] withdrew its prayer for an alias writ of
preliminary attachment vis-a-vis the [petitioners] counterbound, the incident
on the alias writ of preliminary attachment has become moot and academic.
The facts are as follows:
Petitioner Rosella D. Canque is a contractor doing business under the
name and style RDC Construction. At the time material to this case, she had
contracts with the government for (a) the restoration of Cebu-Toledo wharf
road; (b) the asphalting of Lutopan access road; and (c) the asphalting of
Babag road in Lapulapu City.[3] In connection with these projects, petitioner
entered into two contracts with private respondent Socor Construction
Corporation. The first contract (Exh. A),[4] dated April 26, 1985, provided:
The Sub-Contractor (SOCOR Corporation) and the Contractor (RDC
Construction) for the consideration hereinafter named, hereby agree as
follows:
1. SCOPE OF WORK:
a. The Sub-Contractor agrees to perform and execute the Supply,
Lay and Compact Item 310 and Item 302;

b. That Contractor shall provide the labor and materials needed

to complete the project;
c. That the Contractor agrees to pay the Sub-Contractor the price
of One Thousand Pesos only (P1,000.00) per Metric Ton of
Item 310 and Eight Thousand Only (P8,000.00) per Metric Ton
of Item 302.
d. That the Contractor shall pay the Sub-Contractor the volume
of the supplied Item based on the actual weight in Metric Tons
delivered, laid and compacted and accepted by the MPWH;
e. The construction will commence upon the acceptance of the
offer.
The second contract (Exh. B),[5] dated July 23, 1985, stated:
The Supplier (SOCOR Construction) and the Contractor (RDC Construction) for
the consideration hereinafter named, hereby agree as follows:
1. SCOPE OF WORK:
a. The Supplier agrees to perform and execute the delivery of Item
310 and Item 302 to the jobsite for the Asphalting of DAS Access
Road and the Front Gate of ACMDC, Toledo City;
b. That the Contractor should inform or give notice to the Supplier
two (2) days before the delivery of such items;
c. That the Contractor shall pay the Supplier the volume of the
supplied items on the actual weight in metric tons delivered and
accepted by the MPWH fifteen (15) days after the submission of
the bill;
d. The delivery will commence upon the acceptance of the offer.
On May 28, 1986, private respondent sent petitioner a bill (Exh. C),
containing a revised computation,[6] for P299,717.75, plus interest at the
rate of 3% a month, representing the balance of petitioners total account
of P2,098,400.25 for materials delivered and services rendered by private
respondent under the two contracts. However, petitioner refused to pay the
amount, claiming that private respondent failed to submit the delivery
receipts showing the actual weight in metric tons of the items delivered and
the acceptance thereof by the government.[7]
Hence, on September 22, 1986, private respondent brought suit in the
Regional Trial Court of Cebu to recover from petitioner the sum
of P299,717.75, plus interest at the rate of 3% a month.
In her answer, petitioner admitted the existence of the contracts with

private respondent as well as receipt of the billing (Exh. C), dated May 28,
1986. However, she disputed the correctness of the bill
. . . considering that the deliveries of [private respondent] were not signed
and acknowledged by the checkers of [petitioner], the bituminous tack coat it
delivered to [petitioner] consisted of 60% water, and [petitioner] has already
paid [private respondent] about P1,400,000.00 but [private respondent] has
not issued any receipt to [petitioner] for said payments and there is no
agreement that [private respondent] will charge 3% per month interest.[8]
Petitioner subsequently amended her answer denying she had entered
into sub-contracts with private respondent.[9]
During the trial, private respondent, as plaintiff, presented its vicepresident, Sofia O. Sanchez, and Dolores Aday, its bookkeeper.
Petitioners evidence consisted of her lone testimony.[10]
On June 22, 1988, the trial court rendered its decision ordering petitioner
to pay private respondent the sum of P299,717.75 plus interest at 12% per
annum, and costs. It held:
. . . . [B]y analyzing the plaintiffs Book of Collectible Accounts particularly
page 17 thereof (Exh. K) this Court is convinced that the entries (both
payments and billings) recorded thereat are credible. Undeniably, the book
contains a detailed account of SOCORs commercial transactions with RDC
which were entered therein in the course of business. We cannot therefore
disregard the entries recorded under Exhibit K because the fact of their
having been made in the course of business carries with it some degree of
trustworthiness. Besides, no proof was ever offered to demonstrate the
irregularity of the said entries thus, there is then no cogent reason for us to
doubt their authenticity.[11]
The trial court further ruled that in spite of the fact that the contracts did
not have any stipulation on interest, interest may be awarded in the form of
damages under Article 2209 of the Civil Code.[12]
On appeal, the Court of Appeals affirmed. It upheld the trial courts
reliance on private respondents Book of Collectible Accounts (Exh. K) on the
basis of Rule 130, 37[13] of the Rules of Court.
Hence, this appeal. Petitioner contends that
I. THE RESPONDENT COURT ERRED IN ADMITTING IN EVIDENCE AS
ENTRIES IN THE COURSE OF BUSINESS THE ENTRIES IN PRIVATE
RESPONDENTS BOOK OF COLLECTIBLE ACCOUNTS CONSIDERING
THAT THE PERSON WHO MADE SAID ENTRIES ACTUALLY
TESTIFIED IN THIS CASE BUT UNFORTUNATELY HAD NO
PERSONAL KNOWLEDGE OF SAID ENTRIES.
II. THE DECISION OF THE RESPONDENT COURT SHOULD BE
REVERSED AS IT HAS ONLY INADMISSIBLE EVIDENCE TO

SUPPORT IT.
First. Petitioner contends that the presentation of the delivery receipts
duly accepted by the then Ministry of Public Works and Highways (MPWH) is
required under the contracts (Exhs. A and B) and is a condition precedent for
her payment of the amount claimed by private respondent. Petitioner argues
that the entries in private respondents Book of Collectible Accounts (Exh. K)
cannot take the place of the delivery receipts and that such entries are mere
hearsay and, thus, inadmissible in evidence.[14]
We agree with the appellate court that the stipulation in the two
contracts requiring the submission of delivery receipts does not preclude
proof of delivery of materials by private respondent in some other way. The
question is whether the entries in the Book of Collectible Accounts (Exh. K)
constitute competent evidence to show such delivery. Private respondent
cites Rule 130, 37 of the Rules of Court and argues that the entries in
question constitute entries in the course of business sufficient to prove
deliveries made for the government projects.This provision reads:
Entries in the course of business. Entries made at, or near the time of the
transactions to which they refer, by a person deceased, outside of the
Philippines 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.[15]
The admission in evidence of entries in corporate books requires the
satisfaction of the following conditions:
1. The person who made the entry must be dead, outside the country 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.[16]
As petitioner points out, the business entries in question (Exh. K) do not
meet the first and third requisites. Dolores Aday, who made the entries, was
presented by private respondent to testify on the account of RDC
Construction. It was in the course of her testimony that the entries were
presented and marked in evidence. 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.
Necessity is given as a ground for admitting entries, in that they are the best

available evidence. Said a learned judge: What a man has actually done and
committed to writing when under obligation to do the act, it being in the
course of the business he has undertaken, and he being dead, there seems to
be no danger in submitting to the consideration of the court. The person who
may be called to court to testify on these entries being dead, there arises the
necessity of their admission without the one who made them being called to
court be sworn and subjected to cross-examination. And this is permissible in
order to prevent a failure of justice.[17]
Moreover, Aday admitted that she had no personal knowledge of the
facts constituting the entry. She said she made the entries based on the bills
given to her. But she has no knowledge of the truth or falsity of the facts
stated in the bills. The deliveries of the materials stated in the bills were
supervised by an engineer for (such) functions.[18] The person, therefore,
who has personal knowledge of the facts stated in the entries, i.e., that such
deliveries were made in the amounts and on the dates stated, was the
companys project engineer.The entries made by Aday show only that the
billings had been submitted to her by the engineer and that she faithfully
recorded the amounts stated therein in the books of account.Whether or not
the bills given to Aday correctly reflected the deliveries made in the amounts
and on the dates indicated was a fact that could be established by the project
engineer alone who, however, was not presented during trial. The rule is
stated by former Chief Justice Moran, thus:
[W]hen the witness had no personal knowledge of the facts entered by him,
and the person who gave him the information is individually known and may
testify as to the facts stated in the entry which is not part of a system of
entries where scores of employees have intervened, such entry is not
admissible without the testimony of the informer.[19]
Second. It is nonetheless argued by private respondent that although
the entries cannot be considered an exception to the hearsay rule, they may
be admitted under Rule 132, 10[20] of the Rules of Court which provides:

for one of them, the evidence should be excluded. The reason for the rule is
that it is the duty of a party to select the competent from the incompetent in
offering testimony, and he cannot impose this duty upon the trial court.
Where the evidence is inadmissible for the purpose stated in the offer, it
must be rejected, though the same may be admissible for another
purpose. The rule is stated thus: If a party x x x opens the particular view
with which he offers any part of his evidence, or states the object to be
attained by it, he precludes himself from insisting on its operation in any
other direction, or for any other object; and the reason is, that the opposite
party is prevented from objecting to its competency in any view different
from the one proposed.[21]
It should be noted, however, that Exh. K is not really being presented for
another purpose. Private respondents counsel offered it for the purpose of
showing the amount of petitioners indebtedness. He said:
Exhibit K, your Honor - faithful reproduction of page (17) of the book on
Collectible Accounts of the plaintiff, reflecting the principal indebtedness of
defendant in the amount of Two hundred ninety-nine thousand seven
hundred seventeen pesos and seventy-five centavos (P299,717.75) and
reflecting as well the accumulated interest of three percent (3%) monthly
compounded such that as of December 11, 1987, the amount collectible from
the defendant by the plaintiff is Six hundred sixteen thousand four hundred
thirty-five pesos and seventy-two centavos (P616,435.72);[22]
This is also the purpose for which its admission is sought as a
memorandum to refresh the memory of Dolores Aday as a witness. In other
words, it is the nature of the evidence that is changed, not the purpose for
which it is offered.
Be that as it may, considered as a memorandum, Exh. K does not itself
constitute evidence. As explained in Borromeo v. Court of Appeals:[23]

On the other hand, petitioner contends that evidence which is

inadmissible for the purpose for which it was offered cannot be admitted for
another purpose. She cites the following from Chief Justice Morans
commentaries:

Under the above provision (Rule 132, 10), the memorandum used to refresh
the memory of the witness does not constitute evidence, and may not be
admitted as such, for the simple reason that the witness has just the same to
testify on the basis of refreshed memory. In other words, where the witness
has testified independently of or after his testimony has been refreshed by a
memorandum of the events in dispute, such memorandum is not admissible
as corroborative evidence. It is self-evident that a witness may not be
corroborated by any written statement prepared wholly by him. He cannot be
more credible just because he supports his open-court declaration with
written statements of the same facts even if he did prepare them during the
occasion in dispute, unless the proper predicate of his failing memory is
priorly laid down. What is more, even where this requirement has been
satisfied, the express injunction of the rule itself is that such evidence must
be received with caution, if only because it is not very difficult to conceive
and fabricate evidence of this nature. This is doubly true when the witness
stands to gain materially or otherwise from the admission of such evidence . .
. .[24]

The purpose for which the evidence is offered must be specified. Where the
offer is general, and the evidence is admissible for one purpose and
inadmissible for another, the evidence should be rejected. Likewise, where
the offer is made for two or more purposes and the evidence is incompetent

As the entries in question (Exh. K) were not made based on personal

knowledge, they could only corroborate Dolores Adays testimony that she
made the entries as she received the bills.

SEC. 10. When witness may refer to memorandum. A witness may be allowed
to refresh his memory respecting a fact, by anything written by himself or
under his direction at the time when the fact occurred, or immediately
thereafter, or at any other time when the fact was fresh in his memory and
he knew that the same was correctly stated in the writing; but in such case
the writing must be produced and may be inspected by the adverse party,
who may, if he chooses, cross-examine the witness upon it, and may read it
in evidence. So, also, a witness may testify from such a writing, though he
retain no recollection of the particular facts, if he is able to swear that the
writing correctly stated the transaction when made; but such evidence must
be received with caution.

Third. Does this, therefore, mean there is no competent evidence of

private respondents claim as petitioner argues?[25] The answer is in the
negative. Aside from Exh. K, private respondent presented the following
documents:
1) Exhibit A - Contract Agreement dated 26 April 1985 which contract covers
both the Toledo wharf project and the Babag Road project in Lapulapu City.
2) Exhibit B - Contract Agreement dated 23 July 1985 which covers the DAS
Asphalting Project.
3) Exhibit C - Revised Computation of Billings submitted on May 28, 1986.
4) Exhibit D - an affidavit executed by [petitioner] to the effect that she has
no more pending or unsettled obligations as far as Toledo Wharf Road is
concerned.
5) Exhibit D-1 - Statement of Work Accomplished on the Road Restoration of
Cebu-Toledo wharf project.
6) Exhibit E - another affidavit executed by [petitioner] attesting that she has
completely paid her laborers at the project located at Babag, Lapulapu City
7) Exhibits F, G, G-1, G-2, G-3 - Premiums paid by [private respondent]
together with the receipts for filing fees.
8) Exhibits H, I, J - certifications issued by OIC, MPWH, Regional Office;
Lapulapu City, City Engineer; Toledo City Treasurers Office respectively,
proving that RDC construction has no more collectibles with all the said
government offices in connection with its projects.

85 record) to be a material proof of plaintiffs complete fulfillment of its

obligation.
There is no question that plaintiff supplied RDC Construction with Item 302
(Bitunimous Prime Coat), Item 303 (Bituminous Tack Coat) and Item 310
(Bitunimous Concrete Surface Course) in all the three projects of the
latter. The Lutopan Access Road project, the Toledo wharf project and the
Babag-Lapulapu Road project.
On the other hand, no proof was ever offered by defendant to show the
presence of other contractors in those projects. We can therefore conclude
that it was Socor Construction Corp. ALONE who supplied RDC with
Bituminous Prime Coat, Bituminous Tack Coat and Bituminous Concrete
Surface Course for all the aforenamed three projects.[26]
Indeed, while petitioner had previously paid private respondent
about P1,400,000.00 for deliveries made in the past, she did not show that
she made such payments only after the delivery receipts had been presented
by private respondent. On the other hand, it appears that petitioner was able
to collect the full amount of project costs from the government, so that
petitioner would be unjustly enriched at the expense of private respondent if
she is not made to pay what is her just obligation under the contracts.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED.
SO ORDERED.

10) Exhibit L - Bill No. 057 under the account of RDC Construction in the
amount of P153,382.75 dated August 24, 1985.
11) Exhibit M - Bill No. 069 (RDCs account), in the amount of P1,701,795.00
dated November 20, 1985.
12) Exhibit N - Bill No. 071 (RDCs account) in the amount of P47,250.00 dated
November 22, 1985.
13) Exhibit O - Bill No. 079 (RDCs account) in the amount of P7,290.00 dated
December 6, 1985.
As the trial court found:
The entries recorded under Exhibit K were supported by Exhibits L, M, N, O
which are all Socor Billings under the account of RDC Construction. These
billings were presented and duly received by the authorized representatives
of defendant. The circumstances obtaining in the case at bar clearly show
that for a long period of time after receipt thereof, RDC never manifested its
dissatisfaction or objection to the aforestated billings submitted by
plaintiff. Neither did defendant immediately protest to plaintiffs alleged
incomplete or irregular performance. In view of these facts, we believe Art.
1235 of the New Civil Code is applicable.
Art. 1235. When the obligee accepts the performance, knowing its
incompleteness and irregularity and without expressing any protest or
objection, the obligation is deemed complied with.
FINALLY, after a conscientious scrutiny of the records, we find Exhibit D-1 (p.

G.R. No. 108433 October 15, 1996

WALLEM MARITIME SERVICES, INC. and WALLEM SHIPMANAGEMENT
LTD., petitioners,
vs.
NATIONAL LABOR RELATIONS COMMISSION and JOSELITO V.
MACATUNO, respondents.

ROMERO, J.:p
This petition for certiorari seeks to annul and set aside the
Resolution 1 of the National Labor Relations Commission (NLRC)
affirming the Decision 2 of the Philippine Overseas Employment
Administration (POEA) which disposed of POEA Case No.(M) 89-09865 as follows:
WHEREFORE, in view of the foregoing, respondents Wallem
Maritime Services, Inc. and Wallem Shipmanagement Ltd. are
hereby ordered jointly and severally, to pay complainant the
following in Philippine currency at the prevailing rate of
exchange at the time of payment:
a) THREE HUNDRED THREE US DOLLARS
(US$303.00)

representing

salary for the month of June

1989;
b) THREE THOUSAND FIFTY FOUR US DOLLARS
(US$3,054.00) representing
salaries for the unexpired
portion of the contract (JulyDecember 1989); and
c) ONE HUNDRED SIX & 50/100 US DOLLARS
(US$106.50) or five percent
(5%) of the total award as and
by way of attorney's fees.
The claim against Prudential Guarantee and Assurance Inc. is
dismissed for lack of merit.
SO ORDERED.
Private respondent Joselito V. Macatuno was hired by Wallem
Shipmanagement Limited thru its local manning agent, Wallem
Maritime Services, Inc., as an able-bodied seaman on board the M/T
Fortuna, a vessel of Liberian registry. Pursuant to the contract of
employment, private respondent was employed for ten (10) months
covering the period February 26, 1989 until December 26, 1989 with
a monthly salary of two hundred seventy-six US dollars (US $276);
hourly overtime rate of one dollar and seventy-two cents (US $1.72),
and a monthly tanker allowance of one hundred twenty-seven dollars
and sixty cents (US $127.60), with six (6) days leave with pay for
each month.
On June 24, 1989, while the vessel was berthed at the port of
Kawasaki, Japan, an altercation took place between private
respondent and fellow Filipino crew member, Julius E. Gurimbao, on
the one hand, and a cadet/apprentice officer of the same nationality
as the captain of the vessel on the other hand. The master entered
the incident in the tanker's logbook.
As a consequence, private respondent and Gurimbao were
repatriated to the Philippines where they lost no time in lodging
separate complaints for illegal dismissal with the POEA. 3 According
to the affidavit private respondent executed before a POEA
administering officer, the following facts led to the filing of the
complaint.
At about 5:50 a.m. of June 24, 1989, private respondent was on duty
along with Gurimbao, checking the manifold of the vessel and looking
for oil leakages, when a cadet/apprentice who was of the same
nationality as the vessel's captain (Singh), approached them. He
ordered Gurimbao to use a shovel in draining the water which, mixed
with oil and dirt, had accumulated at the rear portion of the upper
deck of the vessel.
Gurimbao explained to the cadet/apprentice that throwing dirty and
oily water overboard was prohibited by the laws of Japan; in fact, port
authorities were roaming and checking the sanitary conditions of the
port. The cadet/apprentice got mad and, shouting, ordered Gurimbao

to get a hose and siphon off the water. To avoid trouble, Gurimbao
used a shovel in throwing the dirty water into the sea.
Having finished his job, Gurimbao complained to private respondent
about the "improper and unauthorized act" of the cadet/apprentice.
The two then went to the cadet/apprentice who was idly standing in a
corner. They reminded him that as a mere apprentice and not an
officer of the vessel, he had no right whatsoever to order around any
member of the crew. However, the cadet/apprentice reacted violently
shouting invectives and gesturing "as if challenging" the two to a
fight. To prevent him from "intimidating" them, private respondent
pushed twice the cadet/apprentice's chest while Gurimbao "mildly
hit" his arm. Frantic and shouting, the cadet/apprentice ran to the
captain "who happened to witness the incident" from the cabin's
window.
The captain summoned private respondent and Gurimbao. With their
bosun (head of the deck crew), they went to the captain's cabin. The
captain told them to pack up their things as their services were being
terminated. They would disembark at the next port, the Port of Ube,
from where they would be flown home to the Philippines, the
repatriation expenses to be shouldered by them. The two attempted
to explain their side of the incident but the captain ignored them and
firmly told them to go home.
Before disembarking, they were entrusted by the bosun with a letter
of their fellow crew members, addressed to Capt. Dio, attesting to
their innocence. At the Port of Ube, an agent of the company handed
them their plane tickets and accompanied them the following day to
the Fukoka Airport where they boarded a Cathay Pacific airplane
bound for Manila.
A few days after their arrival in Manila or on July 1, 1989, the two
gave the letter to Capt. Dio and conferred with him and Mr. James
Nichols. The latter told private respondent that they could not secure
a reimbursement of their repatriation expenses nor could they get
their salaries for the month of June. Private respondent, in a letter
addressed to Capt. Dio, asked for a reconsideration of their dismissal
but the latter did not respond. Frustrated, private respondent sought
the assistance of a lawyer who wrote Wallem a demand letter dated
August 28, 1989 but the same was ignored. 4
Petitioners, defending their position, alleged that the incident was not
the first infraction committed by the two. As shown by the logbook,
on June 19, 1989, while the vessel was docked in Batangas, they left
it during working hours without asking permission. For this offense,
they were given a warning. On June 27, 1989 (sic), while the vessel
was anchored at the Port of Kawasaki, Japan, they assaulted the
officer on watch for the day, Mr. V.S. Sason. The three were
"mustered" and it was found that Sason "was attacked with a spanner
without provacition (sic)." The two were "severely warned that they
will be dealt according to the rules and regulation of their contact of
employment (sic)." When the vessel was about to sail that day, the
two went ashore inspite of the warning given them. They were
arrested by Japanese authorities but the vessel's departure was
delayed for five (5) hours. The agency in Manila was informed that
their wages should be settled "after deducting recoveries" or fines

and air fare. Their

recommended. 5

dismissal

from

the

service

was

also

In his aforementioned decision of September 14, 1990 finding private

respondent's dismissal to be illegal, POEA Deputy Administrator
Manuel G. Imson held:
We find complainant's dismissal to be without just and valid
cause. We cannot give much weight and credence to the
"certified true copy of the official logbook" (Annex "1",
answer) because the alleged entries therein were only
handpicked and copied from the official logbook of the vessel
M/V "Fortuna". There is no way of verifying the truth of these
entries and whether they actually appear in the log entries for
the specific dates mentioned. The pages in the official
logbook where these entries appear should have been the
ones reproduced to give the same a taint of credence.
Moreover, no documentary evidence was submitted to
support the alleged official logbook, like the Master's report
and the police report or any report by the Japanese
authorities by reason of their arrest. Finally, the copy of the
alleged official logbook was not properly authenticated. The
authentication is necessary specially so since this document
is the only piece of evidence submitted by respondents.
Granting that the entries in the logbook are true, a perusal
thereof will readily show that complainant was not afforded
due process. The warnings allegedly given to complainant
were not submitted in evidence. Likewise, no investigation
report was presented to prove that complainant was given
the opportunity to air his side of the incident.
It is also noteworthy to mention that complainant was able to
describe with particularity the circumstances which led to his
misunderstanding with the cadet/apprentice and which we
believe is not sufficient to warrant his dismissal. 6
As stated above, the NLRC affirmed the decision of the POEA,
adopting as its own the latter's findings and conclusions. Hence, the
instant petition contending that both the POEA and the NLRC gravely
abused their discretion in finding that private respondent was illegally
terminated from his employment.
As with G.R. No. 107865, where herein petitioners likewise questioned
the NLRC decision affirming that of POEA Case No. (M) 88-11-1078
finding the dismissal from employment of Gurimbao to be
illegal, 7 the Court sees no merit in the instant petition.
An employer may dismiss or lay off an employee only for the just and
authorized causes enumerated in Articles 282 and 283 of the Labor
Code. However, this basic and normal prerogative of an employer is
subject to regulation by the State in the exercise of its paramount
police power inasmuch as the preservation of lives of citizens, as well
as their means of livelihood, is a basic duty of the State more vital
than the preservation of corporate profits. 8 One' s employment,
profession, trade or calling is a property right within the protection of
the constitutional guaranty of due process of law. 9

We agree with petitioners that the ship captain's logbook is a vital

evidence as Article 612 of the Code of Commerce requires him to
keep a record of the decisions he had adopted as the vessel's head.
Thus, inHaverton Shipping Ltd. v. NLRC, 10 the Court held that a copy
of an official entry in the logbook is legally binding and serves as an
exception to the hearsay rule.
However, the Haverton Shipping ruling does not find unqualified
application in the case at bar. In said case, an investigation of the
incident which led to the seaman's dismissal was conducted before
he was dismissed. 11 Consequently, the facts appearing in the
logbook were supported by the facts gathered at the investigation. In
this case, because no investigation was conducted by the ship
captain before repatriating private respondent, the contents of the
logbook have to be duly identified and authenticated lest an injustice
result from a blind adoption of such contents which merely serve
as prima facie evidence of the incident in question. 12
Moreover, what was presented in the Haverton Shipping case was a
copy of the official entry from the logbook itself. In this case,
petitioners did not submit as evidence to the POEA the logbook itself,
or even authenticated copies of pertinent pages thereof, which could
have been easily xeroxed or photocopied considering the present
technology
on
reproduction
of
documents. 13 What was offered in evidence was merely a
typewritten collation of
excerpts from what could be the
logbook 14 because by their format, they could have been lifted from
other records kept in the vessel in accordance with Article 612 of the
Code of Commerce. 15
Furthermore, the alleged entry in the "logbook" states, as regards the
June 27, 1989 (sic) incident, as follows:
KAWASAKI KAWASAKI This is to place on record
27.6.89
that
at
the
time,
date
and
place
mentioned
Mr.
J.
V.
MACATUNO
(Sr
No.
147)
and
Mr.
J.E.
GURIMBAO
(Sr
No.
156)
attacked
and
assaulted
apprentice
officer
Mr
V.S.
SASON
while
on
duty.
All
three
were
mustered
and
it
was
found
that
Mr.
SASON
was
attacked
with
a
spanner
without
provacition
(sic).
Both
the
seaman
(sic)
have
been
severely
warned
that
they
will
be
dealt
according
to
the
rules
and
regulation
of
their
contact
of
employment. 16
Under the Table of Offenses and Corresponding Administrative
Penalties appended to the contract of employment entered into by
petitioners and private respondent, the offense described by the
logbook entry may well fall under insubordination and may constitute
assaulting a superior officer "with the use of deadly weapon"
punishable with dismissal 17 if the victim is indeed a "superior

officer." However, an "apprentice officer" cannot be considered a

"superior officer." An apprentice is a person bound in the form of law
to a master, to learn from him his art, trade, or business, and to serve
him during the time of his apprenticeship. 18 In other words, Mr. V. S.
Sason was merely a learner or a trainee and not a regular officer on
board M/T Fortuna.
In this regard, it should be clarified that this Court does not tolerate
nor sanction assault in any form. Physical violence against anyone at
any time and any place is reprehensible. However, in cases such as
this, where a person's livelihood is at stake, strict interpretation of the
contract of employment in favor of the worker must be observed to
affirm the constitutional provision on protection to labor.
Moreover, the aforequoted entry in the logbook is so sketchy that,
unsupported by other evidence, it leaves so many questions
unanswered. Although private respondent candidly admitted in his
affidavit having hit Sason on the chest twice, he did not admit using a
spanner. The conflicting versions of the incident rendered it
impossible to determine whether it was private respondent or
Gurimbao who wielded said tool. In the absence of a more detailed
narration in the logbook entry of the circumstances surrounding the
alleged assault, the same cannot constitute a valid justification to
terminate private respondent's employment. 19
H ence, as the typewritten excerpts from the "logbook" were the only
pieces of evidence presented by petitioners to support the dismissal
of private respondent, have no probative value at all, petitioners'
cause must fail. Their failure to discharge the onus probandi properly
may have no other result than a finding that the dismissal of private
respondent is unjustified. 20
Petitioners' failure to substantiate the grounds for a valid dismissal
was aggravated by the manner by which the employment of private
respondent was terminated. It must be borne in mind that the right of
an employer to dismiss an employee is to be distinguished from and
should not be confused with the manner in which such right is
exercised. Dismissal from employment must not be effected
abusively and oppressively as it affects one's person and property.
Thus, Batas Pambansa Blg. 130, amending paragraph (b) of Article
278 of the Labor Code, imposed as a condition sine qua non that any
termination of employment under the grounds provided in Article 283
must be done only after notice and formal investigation have been
accorded
the
supposed
errant
worker. 21
That the workers involved in the incident were "mustered" or
convened thereafter by the captain is inconsequential. It is
insufficient compliance with the law which requires, as a vital
component of due process, observance of the twin requirements of
notice and hearing before dismissing an employee. As regards the
notice requirement, the Court has stated:
On the issue of due process . . . , the law requires the
employer to furnish the worker whose employment is sought
to be terminated a written notice containing a statement of
the cause or causes for termination and shall afford him

ample opportunity to be heard and to defend himself with the

assistance of a representative. Specifically, the employer
must furnish the worker with two (2) written notices before
termination of employment can be legally effected: (a) notice
which apprises the employee of the particular acts or
omissions for which his dismissal is sought; and (b) the
subsequent notice which informs the employee of the
employer's decision to dismiss him. (Emphasis supplied.) 22
Neither is the ship captain's having witnessed the altercation an
excuse for dispensing with the notice and hearing requirements.
Serving notice to private respondent under the circumstances cannot
be regarded as an "absurdity and superfluity." 23
ON ALL THE FOREGOING CONSIDERATIONS, the petition at bar is
DISMISSED and the Resolution of respondent National Labor Relations
Commission is hereby AFFIRMED in toto.
SO ORDERED.

NORTHWEST AIRLINES, INC.,

Petitioner,

G.R. No. 155550

Present:
YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CORONA,*
NACHURA, and
REYES, JJ.

- versus -

Promulgated:
STEVEN P. CHIONG,
Respondent.

January 31, 2008

x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of

Court seeking the reversal of the Court of Appeals (CA) Decision[1] in CA-G.R.
CV No. 50308[2]which affirmed in toto the Regional Trial Court (RTC)

Decision[3] holding petitioner Northwest Airlines, Inc. (Northwest) liable for

Northwest check-in counter. When it was Chiongs turn, the Northwest

breach of contract of carriage.

personnel[5] informed him that his name did not appear in the computers list

On March 14, 1989, Philimare Shipping and Seagull Maritime Corporation

of confirmed departing passengers. Chiong was then directed to speak to a

(Philimare),

Lines

man in barong standing outside Northwests counters from whom Chiong

(TransOcean), hired respondent Steven Chiong as Third Engineer of

could allegedly obtain a boarding pass. Posthaste, Chiong approached the

TransOceans vessel M/V Elbia at the San Diego, California Port. Under the

man in barong who demanded US$100.00 in exchange therefor. Without the

service crew agreement, Chiong was guaranteed compensation at a monthly

said amount, and anxious to board the plane, Chiong queued a number of

salary of US$440.00 and a monthly overtime pay of US$220.00, or a total of

times at Northwests Check-in Counter and presented his ticket. However, the

US$7,920.00 for one year.

Northwest personnel at the counter told him to simply wait and that he was

as

the

authorized

Philippine

agent

of

TransOcean

being a pest.
Subsequently, on March 27, 1989, Philimare dispatched a Letter of Guarantee
to CL Hutchins & Co., Inc., TransOceans agent at the San Diego Port,

Frustrated, Chiong went to Calvo at the PCG counter and inquired if she had

confirming Chiongs arrival thereat in time to board the M/V Elbia which was

money so he could obtain a boarding pass from the man in barong. Calvo,

set to sail on April 1, 1989 (California, United States time). For this purpose,

who already saw that something was amiss, insisted that Chiongs plane

Philimare

for San

ticket was confirmed and as such, he could check-in smoothly and board the

Diego, California with a departure date of April 1, 1989 from Manila. Ten (10)

plane without shelling out US$100.00 for a boarding pass. Ultimately, Chiong

days before his scheduled departure, Chiong fetched his entire family

was not allowed to board Northwest Flight No. 24 bound for San Diego that

from Samar and brought them to Manila to see him off at the airport.

day and, consequently, was unable to work at the M/V Elbia byApril 1,

purchased

for

Chiong

Northwest

plane

ticket

1989 (California, U.S.A. time).

On April 1, 1989, Chiong arrived at the Manila International Airport[4] (MIA),
at about 6:30 a.m., three (3) hours before the scheduled time of departure.

It appears that Chiongs name was crossed out and substituted with W.

Marilyn Calvo, Philimares Liaison Officer, met Chiong at the departure gate,

Costine in Northwests Air Passenger Manifest.[6]

and the two proceeded to the Philippine Coast Guard (PCG) Counter to
present Chiongs seaman service record book for clearance. Thereafter,

In a letter dated April 3, 1989, Chiongs counsel demanded as recompense:

Chiongs passport was duly stamped, after complying with government

(1) the amount equivalent to Chiongs salary under the latters Crew

requirements for departing seafarers.

Agreement[7] with TransOcean; (2)P15,000.00 for Chiongs expenses in

Calvo remained at the PCG Counter while Chiong proceeded to queue at the

fetching and bringing his family from Samar to Manila; (3) P500,000.00 as

moral damages; and (4) P500,000.00 as legal fees.[8]

No. 90-89722.

Northwest demurred. Thus, on May 24, 1989, Chiong filed a Complaint for

In the meantime, after a flurry of motions filed by Northwest in the civil case

breach of contract of carriage before the RTC. Northwest filed a Motion to

were denied by the RTC, Northwest filed a Petition for Certiorari before the CA

Dismiss[9] the complaint citing the trial courts lack of jurisdiction over the

imputing grave abuse of discretion to the RTC.[15] Correlatively, Northwest

subject matter of the case, but the trial court denied the same.[10]

moved for a suspension of the proceedings before the trial court. However,
both the Petition for Certiorari and Motion for Suspension of the proceedings

In its Answer,[11] Northwest contradicted the claim that it breached its

were denied by the CA and RTC, respectively.[16]

contract of carriage with Chiong, reiterating that Chiong had no cause of

action against it because per its records, Chiong was a no-show passenger for

After trial, the RTC rendered a Decision finding preponderance of evidence in

Northwest Flight No. 24 on April 1, 1989.

favor of Chiong, and holding Northwest liable for breach of contract of

carriage. The RTC ruled that the evidence adduced by the parties supported

In the RTCs Pre-trial Order[12] based on the parties respective Pre-trial Briefs,

the conclusion that Chiong was deliberately prevented from checking-in and

[13] the triable issues were limited to the following:

his boarding pass unjustifiably withheld to accommodate an American

passenger by the name of W. Costine.

(a) Whether [Chiong] was bumped-off by [Northwest] from

Flight NW 24 or whether [Chiong] no-showed for said flight.
(b) If defendant is found guilty of having breached its
contract of carriage with plaintiff, what damages are
awardable to plaintiff and how much.

The dispositive portion of the RTC decision reads:

In the course of proceedings, Northwest, on September 14, 1990, filed a

WHEREFORE, premises considered, in consideration of all the

foregoing, judgment is hereby rendered, ordering the
defendant liable to plaintiff in damages by reason of the
latters inability to take defendants NW Flight No. 24 on April
1, 1989, for the following amounts:

separate criminal complaint for False Testimony[14] against Chiong based on

the latters testimony that he did not leave the Philippines after April 1, 1989
contrary to the notations in his seaman service record book that he had left
the country on April 17, 1989, and returned on October 5 of the same year.
Chiong

did

not

participate

in

the

preliminary

investigation;

thus,

on December 14, 1990, the City Prosecutor of Manila filed an Information

against Chiong with the RTC Manila, Branch 54, docketed as Criminal Case

1) U.S.$8,447.00[17] or its peso equivalent at

the time of finality of this judgment with legal
interests until fully paid, representing
compensatory damages due to plaintiffs loss
of income for one (1) year as a direct result of
defendants breach of contract of carriage;
2) P15,000.00,
Philippine
Currency,
representing
plaintiffs
actual
incurred
damages as a consequence of his failure to
avail of defendants Flight No. 24 on April 1,
1989;

3) P200,000.00,
Philippine
Currency,
representing moral damages suffered and
sustained by the plaintiff as a result of
defendants breach of contract of carriage;

a result of the breach, Northwest is liable to Chiong for compensatory, actual,

moral and exemplary damages, attorneys fees, and costs of suit; and (3)
Northwests Exhibits 2 and 3, the Flight Manifest and the Passenger Name

4) P200,000.00,
Philippine
Currency,
representing exemplary or punitive damages
due to plaintiff from defendant, owing to the
latters breach of contract of carriage with
malice and fraud; and

Record, respectively, were hearsay evidence and ought to be excluded from

the records.
The petition must fail.

5) P200,000.00, Philippine Currency, for and

as attorneys fees, plus costs of suit.

We are in complete accord with the common ruling of the lower courts that

SO ORDERED.

Northwest breached the contract of carriage with Chiong, and as such, he is

entitled to compensatory, actual, moral and exemplary damages, attorneys

On appeal, the CA affirmed in toto the ruling of the RTC. Identical to the RTCs

fees and costs of suit.

findings, those of the CA were as follows: on April 1, 1989, Chiong was at the
MIA three hours before the 10:15 a.m. departure time for Northwest Flight

Northwest contends that Chiong, as a no-show passenger on April 1, 1989,

No. 24. Contrary to Northwests claim that Chiong was a no-show passenger,

already defaulted in his obligation to abide by the terms and conditions of the

the CA likewise concluded, as the RTC did, that Chiong was not allowed to

contract of carriage;[18]and thus, Northwest could not have been in breach

check-in and was not issued a boarding pass at the Northwest check-in

of its reciprocal obligation to transport Chiong. In sum, Northwest insists that

counter to accommodate a certain W. Costine. As for Northwests defense that

Chiongs testimony is a complete fabrication, supposedly demonstrated by

Chiong had left the country after April 1, 1989 and worked for M/V Elbia, the

the following: (1) Chiongs seaman service record book reflects that he left the

CA ruled that Northwests failure to raise this defense in its Answer or Motion

Philippines after April 1, 1989, specifically on April 17, 1989, to board the M/V

to Dismiss is equivalent to a waiver thereof. The CA declared that, in any

Elbia, and was discharged therefrom upon his personal request; (2) the

event, Northwest failed to present any evidence to prove that Chiong had

Information filed against Chiong for False Testimony; and (3) the Flight

worked under the original crew agreement.

Manifest and the Passenger Name Record both indicate that he was a noshow passenger.

Hence, this recourse.

We are not convinced.
Northwest ascribes grievous errors to the CA when the appellate court ruled
that: (1) Northwest breached the contract of carriage with Chiong who was

The records reveal that Chiong, as plaintiff in the trial court, satisfied the

present at the MIA on April 1, 1989 to board Northwests Flight No. 24; (2) As

burden of proof required in civil cases, i.e., preponderance of evidence.

Section 1 of Rule 133 provides:

officer tasked to assist Chiong at the airport, corroborated Chiongs testimony

on the latters presence at the MIA and his check-in at the PCG counter

SECTION 1. Preponderance of evidence, how determined. In

civil cases, the party having the burden of proof must
establish his case by a preponderance of evidence. In
determining where the preponderance or superior weight of
evidence on the issues involved lies, the court may consider
all the facts and circumstance of the case, the witnesses
manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which they are testifying,
the nature of the facts to which they testify, the probability or
improbability of their testimony, their interest or want of
interest, and also their personal credibility so far as the same
may legitimately appear upon the trial. The court may also
consider the number of witnesses, though preponderance is
not necessarily with the greater number.

without a hitch. Calvo further testified that she purposely stayed at the PCG
counter to confirm that Chiong was able to board the plane, as it was part of
her duties as Philimares liaison officer, to confirm with their principal,
TransOcean in this case, that the seafarer had left the country and
commenced travel to the designated port where the vessel is docked.
[21] Thus, she had observed that Chiong was unable to check-in and board
Northwest Flight No. 24, and was actually being given the run-around by
Northwest personnel.

In this regard, the Court notes that, in addition to his testimony, Chiongs
evidence consisted of a Northwest ticket for the April 1, 1989 Flight No. 24,

It is of no moment that Chiongs witnesses who all corroborated his testimony

Chiongs passport and seaman service record book duly stamped at the PCG

on his presence at the airport on, and flight details for, April 1, 1989, and that

counter, and the testimonies of Calvo, Florencio Gomez,[19] and Philippine

he was subsequently bumped-off are, likewise, employees of Philimare which

Overseas Employment and Administration (POEA) personnel who all identified

may have an interest in the outcome of this case. We intoned in Philippine

the signature and stamp of the PCG on Chiongs passport.

Airlines, Inc. v. Court of Appeals,[22] thus:

We have scoured the records, and found no reason to depart from the wellsettled rule that factual findings of the lower courts deserve the utmost
respect and are not to be disturbed on appeal.[20] Indeed, Chiongs
Northwest ticket for Flight No. 24 on April 1, 1989, coupled with the PCG
stamps on his passport showing the same date, is direct evidence that he
was present at MIA on said date as he intended to fly to the United States on

(T)his Court has repeatedly held that a witness

relationship to the victim does not automatically affect
the veracity of his or her testimony. While this principle
is often applied in criminal cases, we deem that the same
principle may apply in this case, albeit civil in nature. If a
witness relationship with a party does not ipso
facto render him a biased witness in criminal cases
where the quantum of evidence required is proof
beyond reasonable doubt, there is no reason why the
same principle should not apply in civil cases where
the quantum of evidence is only preponderance of
evidence.

board that flight. As testified to by POEA personnel and officers, the PCG
stamp indicates that a departing seaman has passed through the PCG

The foregoing documentary and testimonial evidence, taken together, amply

counter at the airport, surrendered the exit pass, and complied with

establish the fact that Chiong was present at MIA on April 1, 1989, passed

government requirements for departing seafarers. Calvo, Philimares liaison

through the PCG counter without delay, proceeded to the Northwest check-in

counter, but when he presented his confirmed ticket thereat, he was not

counters on said date. It simply insisted that Chiong was a no-show

issued a boarding pass, and ultimately barred from boarding Northwest Flight

passenger and totally relied on the Flight Manifest, which, curiously, showed

No. 24 on that day.

a horizontal line drawn across Chiongs name, and the name W. Costine
written above it. The reason for the insertion, or for Chiongs allegedly being a

In stark contrast is Northwests bare-faced claim that Chiong was a no-show

no-show passenger, is not even recorded on the remarks column of the Flight

passenger, and was scheduled to leave the country only on April 17, 1989. As

Manifest beside the Passenger Name column. Clearly, the categorical

previously discussed, the records belie this assertion. It is also noteworthy

declaration of Chiong and his other witnesses, coupled with the PCG stamp

that Northwest did not present any evidence to support its belated defense

on his passport and seaman service record book, prevails over Northwests

that Chiong departed from the Philippines on April 17, 1989 to work as Third

evidence, particularly the Flight Manifest. Thus, we are perplexed why,

Engineer on board M/V Elbia under the original crew agreement.

despite the evidence presented by Chiong, and the RTCs specific order to

It is true that Chiongs passport and seaman service record book indicate that

Northwests counsel to present the person(s) who prepared the Flight Manifest

he had left the country on April 17, 1989 and come back on October 5 of the

and Passenger Name Record for a proper identification of, and to testify on,

same year. However, this evidence fails to debunk the facts established to

those documents, Northwest still insisted on presenting Gonofredo Mendoza

have transpired on April 1, 1989, more particularly, Chiongs presence at the

and Amelia Meris who were, admittedly, not competent to testify thereon.[25]

airport and his subsequent bumping-off by Northwest despite a confirmed

ticket. Although initially, the burden of proof was with Chiong to prove that

In its desperate attempt to evade liability for the breach, Northwest claims

there was a breach of contract of carriage, the burden of evidence shifted to

that Chiong worked at M/V Elbia when he left the Philippines on April 17,

Northwest when Chiong adduced sufficient evidence to prove the facts he

1989. The argument was not only belatedly raised, as we have repeatedly

had alleged. At that point, Northwest had the burden of going forward[23] to

stated, but is off-tangent.

controvert Chiongs prima facie case. As the party asserting that Chiong was a
no-show passenger, Northwest then had the burden of evidence to establish

On this point, we uphold the RTCs and CAs ruling that the failure of Northwest

its claim. Regrettably, Northwest failed to do so.

to raise the foregoing defense in its Motion to Dismiss or Answer constituted

a waiver thereof. Section 1, Rule 9 of the Rules of Court provides:

Furthermore, it has not escaped our attention that Northwest, despite the
declaration in its Pre-Trial Brief, did not present as a witness their check-in
agent on that contentious date.[24] This omission was detrimental to
Northwests case considering its claim that Chiong did not check-in at their

SECTION 1. Defenses and objections not pleaded. Defenses

and objections not pleaded either in a motion to
dismiss or in the answer are deemed waived. However,
when it appears from the pleadings or the evidence on record
that the court has no jurisdiction over the subject matter,
that there is another action pending between the same

parties for the same cause, or that the action is barred by a

prior judgment or by statute of limitations, the court shall
dismiss the claim. (Emphasis supplied)

falsus in omnibus[26] doctrine. Following Northwests flawed logic, this would

invariably lead to the conclusion that the corroborating testimonies of
Chiongs witnesses are also false.

Similarly, Section 8, Rule 15 of the Rules of Court reads:

SECTION 8. Omnibus Motion. Subject to the provisions of
section 1 of Rule 9, a motion attacking a pleading, order,
judgment, or proceeding shall include all objections then
available, and all objections not so included shall be deemed
waived.

The legal maxim falsus in uno, falsus in omnibus, cited by Northwest, is not a
positive rule of law and is not strictly applied in this jurisdiction. Before this
maxim can be applied, the witness must be shown to have willfully falsified
the truth on one or more material points. The principle presupposes the

Moreover, Northwest paints a scenario that ostensibly transpired on a

existence of a positive testimony on a material point contrary to subsequent

different date. Even if Chiong left the Philippines on April 17, 1989, it would

declarations in the testimony. However, the records show that Chiongs

not necessarily prove that Chiong was a no-show on April 1, 1989. Neither

testimony did not contain inconsistencies on what occurred on April 1, 1989.

does it negate the already established fact that Chiong had a confirmed

Yet, Northwest never even attempted to explain or impugn the evidence that

ticket for April 1, 1989, and first passed through the PCG counter without

Chiong passed through the PCG counter on April 1, 1989, and that his

delay, then reached and was at the Northwest check-in counters on time for

passport was accordingly stamped, obviously for purposes of his departure

the scheduled flight.

on that day.

Essentially, Northwest argues that Chiong was a no-show passenger on two

As to the criminal case, it is well to note that there is no final determination,

(2) separate occasions, March 28 and April 1, 1989 because he was actually

as yet, of Chiongs guilt by the courts. But even if Chiong is adjudged guilty, it

scheduled to depart for the US on April 17, 1989 as ostensibly evidenced by

will have little effect on the outcome of this case. As we held in Leyson v.

his passport and seaman record book. Had this new matter alleged been

Lawa:[27]

proven by Northwest, it would prevent or bar recovery by Chiong.

Unfortunately, Northwest was unsuccessful in proving not only the no-show
claim, but that Chiong, likewise, worked under the original crew agreement.

The testimony of a witness must be considered in its entirety

instead of in truncated parts. The technique in deciphering a
testimony is not to consider only its isolated parts and anchor
a conclusion on the basis of said parts. In ascertaining the
facts established by a witness, everything stated by him on
direct, cross and redirect examinations must be calibrated
and considered.

Northwest likewise insists now that there is a pending criminal case for False
Testimony against Chiong that a falsified part of Chiongs testimony would
indicate the falsity of his entire testimony, consistent with the falsus in uno,

It must be stressed that facts imperfectly or erroneously

stated in answer to one question may be supplied or
explained as qualified by his answer to other question. The
principle falsus in uno, falsus in omnibus is not strictly applied

in this jurisdiction. The doctrine deals only with the weight of

evidence and is not a positive rule of law, and the same is not
an inflexible one of universal application. The testimony of a
witness can be believed as to some facts and disbelieved as
to others:

on M/V Elbia from April 17 to October 5, 1989 under the original crew
agreement. Accordingly, we affirm the lower courts finding on Chiongs
entitlement to actual and compensatory damages.

xxxx
Professor Wigmore
commentary:

gives

the

following

enlightening

It may be said, once for all, that the maxim is

in itself worthless first, in point of validity,
because in one form it merely contains in
loose fashion a kernel of truth which no one
needs to be told, and in the others, it is
absolutely false as a maxim of life;
and secondly, in point of utility, because it
merely tells the jury what they may do in any
event, not what they must do or must not do,
and therefore it is a superfluous form of
words. It is also in practice pernicious, first,
because
there
is
frequently
a
misunderstanding of its proper force,
and secondly, because it has become in the
hands of many counsel a mere instrument for
obtaining new trials upon points wholly
unimportant in themselves.

We, likewise, uphold the findings of both courts on Northwests liability for
moral and exemplary damages, and attorneys fees.

Under Article 2220 of the Civil Code of the Philippines, an award of moral
damages, in breaches of contract, is in order upon a showing that the
defendant acted fraudulently or in bad faith. Bad faith does not simply
connote bad judgment or negligence.[28] It imports a dishonest purpose or
some moral obliquity and conscious doing of a wrong.[29] It means breach of
a known duty through some motive, interest or ill will that partakes of the
nature of fraud.[30] Bad faith is in essence a question of intention.[31]

From the foregoing disquisition, the ineluctable conclusion is that Northwest

In the case at bench, the courts carefully examined the evidence as to the

breached its contract of carriage with Chiong.

conduct and outward acts of Northwest indicative of its inward motive. It is

borne out by the records that Chiong was given the run-around at the

Time and again, we have declared that a contract of carriage, in this case, air

Northwest check-in counter, instructed to deal with a man in barong to obtain

transport, is primarily intended to serve the traveling public and thus, imbued

a boarding pass, and eventually barred from boarding Northwest Flight No. 24

with public interest. The law governing common carriers consequently

to accommodate an American, W. Costine, whose name was merely inserted

imposes an exacting standard of conduct. As the aggrieved party, Chiong

in the Flight Manifest, and did not even personally check-in at the counter.

only had to prove the existence of the contract and the fact of its non-

[32]

performance by Northwest, as carrier, in order to be awarded compensatory

and actual damages.

Under the foregoing circumstances, the award of exemplary damages is also

correct given the evidence that Northwest acted in an oppressive manner

We reiterate that Northwest failed to prove its claim that Chiong worked

towards Chiong.[33]

course of business, it is necessary that: (a) the person who

made the entry must be dead or unable to testify; (b) the
entries were made at or near the time of the transactions to
which they refer; (c) the entrant was in a position to know the
facts stated in the entries; (d) the entries were made in his
professional capacity or in the performance of a duty; and (e)
the entries were made in the ordinary or regular course of
business or duty.

As for the award of attorneys fees, while we recognize that it is sound policy
not to set a premium on the right to litigate,[34] we sustain the lower courts
award thereof.

Tested by these requirements, we find the manifest and

passenger name record to be mere hearsay evidence. While
there is no necessity to bring into court all the employees
who individually made the entries, it is sufficient that the
person who supervised them while they were making the
entries testify that the account was prepared under his
supervision and that the entries were regularly entered in the
ordinary course of business. In the case at bench,
while MENDOZA was the supervisor on-duty on April 1,
1989, he has no personal knowledge of the entries in
the manifest since he did not supervise the
preparation thereof. More importantly, no evidence
was presented to prove that the employee who made
the entries was dead nor did the defendant-appellant
set forth the circumstances that would show the
employees inability to testify.[38]

Attorneys fees may be awarded when a party is compelled to litigate or incur

expenses to protect his interest,[35] or where the defendant acted in gross
and evident bad faith in refusing to satisfy the plaintiffs plainly valid, just and
demandable

claim.[36] In

the

case

at

bench,

Northwest

deliberately

breached its contract of carriage with Chiong and then repeatedly refused to
satisfy Chiongs valid, just and demandable claim. This unjustified refusal
constrained Chiong to not only lose income under the crew agreement, but to
further incur expenses and exert effort for almost two (2) decades in order to
protect his interests and vindicate his right. Therefore, this Court deems it

WHEREFORE, premises considered, the petition is hereby DENIED. The

just and equitable to grant Chiong P200,000.00 as attorneys fees. The award
ruling

of

the

Court

of

Appeals

in

CA-G.R.

is reasonable in view of the time it has taken for this case to be resolved.[37]
hereby AFFIRMED. Costs against the petitioner.
Finally, the issue of the exclusion of Northwests Exhibits 2 and 3 need not
detain us long. Suffice it to state that the RTC and CA correctly excluded
these documents as hearsay evidence. We quote with favor the CAs holding
thereon, thus:
As a rule, 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 a duty and in the ordinary or regular
course of business or duty. [Rule 130, Section 43, Revised
Rules of Court]
Otherwise stated, in order to be admissible as entries in the

CV

No.

50308

is

several customers of said company under the express

obligation to account for the proceeds of the sales and deliver
the collection to the said company, but far from complying
with her obligation and after a reasonable period of time
despite repeated demands therefore, and with intent to
defraud the said company, did, then and there willfully,
unlawfully and feloniously fail to deliver the said collection to
the said company but instead, did, then and there willfully
unlawfully and feloniously misappropriate, misapply and
convert the proceeds of the sale to her own use and benefit,
to the damage and prejudice of the said company in the
aforesaid amount of P131,286.97.

SO ORDERED.

ANNA LERIMA PATULA,

Petitioner,

G.R. No. 164457

Present:
CORONA,C.J.,Chairperson,
LEONARDO-DE CASTRO,
BERSAMIN,
DEL CASTILLO, and
VILLARAMA, JR.,JJ.
Promulgated:

-versus-

Contrary to Art. 315, par 1 (b) of the Revised Penal Code.[1]

PEOPLE OF THE PHILIPPINES,

Respondent.
April 11, 2012
x-----------------------------------------------------------------------------------------x
DECISION

Petitioner pled not guiltyto the offense charged in the information. At pretrial, no stipulation of factswas had, and petitioner did not avail herself of

BERSAMIN, J.:

plea bargaining.Thereafter, trial on the merits ensued.

In the trial of everycriminal case, a judge must rigidlytest the States evidence

The Prosecutions first witness was Lamberto Go, who testified that he was

of guilt in order to ensure that such evidenceadheres to the basic rules of

the branch manager of Footluckers Chain of Stores, Inc. (Footluckers) in

admissibility before pronouncing an accused guilty of the crime charged upon

Dumaguete City since October 8, 1994; that petitioner was an employee of

such evidence. Nothing less is demanded of the judge; otherwise, the

Footluckers, starting as a saleslady in 1996 until she became a sales

guarantee

need

representative; that as a sales representative she was authorized to take

notadduceanythingto rebut evidence that is discredited for failing the

orders from wholesale customers coming from different towns (like Bacong,

test.Acquittal should then follow.

Zamboanguita, Valencia, Lumbangan and Mabinay in Negros Oriental, and

of

due

process

of

law

is

nullified.The

accused

Siquijor), and to collect payments from them; that she could issue and sign
Antecedents

official receipts of Footluckers for the payments, which she would then remit;
that she would then submit the receipts for the payments for tallying and

Petitioner was charged withestafaunder an informationfiled in the Regional

Trial Court (RTC) in DumagueteCitythat averred:
That on or about and during the period from March 16 to 20,
1997 and for sometime prior thereto, in the City of
Dumaguete, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, being then a saleswoman
of Footluckers Chain of Stores, Inc., Dumaguete City, having
collected and received the total sum of P131,286.97 from

reconciliation; that at first her volume of sales was quite high, but later on
dropped, leading him to confront her; that she responded that business was
slow; that he summoned the accounting clerk to verify; that the accounting
clerk discovered erasures on some collection receipts; that he decided to
subject her to an audit by company auditor Karen Guivencan; that he learned

from a customer of petitioners that the customers outstanding balance had

already been fully paid although that balance appeared unpaid in Footluckers

During Guivencans stint as a witness, the Prosecution marked the ledgers of

records; and that one night later on, petitioner and her parents went to his

petitioners various customers allegedly with discrepancies as Exhibits B to

house to deny having misappropriated any money of Footluckers and to

YYand their derivatives, inclusive. Each of the ledgers had a first column that

plead for him not to push through with a case against her, promising to settle

contained the dates of the entries, a second that identified the invoices by

her account on a monthly basis; and that she did not settle after that, but

the number, a third that statedthe debit, a fourth that noted the credit (or the

stopped reporting to work.[2]

amounts paid), and a fifth that summed the balances (debit minus
credit).Only 49 of theledgerswere formally offered and admitted by the

On March 7, 2002, Gos cross examination, re-direct examination and re-

RTC because the 50thledger could no longer be found.

crossexamination were completed.

In the course of Guivencansdirect-examination,petitioners counsel interposed
The

only

other

whomFootluckers

witness

for

employed

as

the
its

Prosecution
store

was

auditor

Karen

Guivencan,

since November

a continuing objection on the ground that the figuresentered in Exhibits B to

16,

YYand their derivatives, inclusive, were hearsay because the persons who had

1995 until her resignation on March 31, 2001. She declared that Go had

made the entries were not themselves presented in court.[4]With that,

requested her to audit petitioner after some customers had told him that

petitioners counsel did not anymore cross-examine Guivencan, apparently

they had already paid their accounts but the office ledger had still reflected

regarding her testimony to be irrelevant because she thereby tended to

outstandingbalances for them; that she first conducted her audit by going to

prove falsification, an offense not alleged in the information.

the customers in places from Mabinay to Zamboanguitain Negros Oriental,

and then in Siquijor; thatshe discovered in the course of her audit that the

TheProsecution thenformally offered its documentary exhibits, including

amounts appearing on the original copies of receipts in the possession of

Exhibits B to YYand their derivatives (like the originals and duplicates of the

around 50 customers varied from the amounts written on the duplicate

receipts supposedly executed and issued by petitioner), inclusive, the

copies of the receipts petitioner submitted to the office; that upon completing

confirmation sheets used by Guivencan in auditing the accounts served by

her audit, she submittedto Go a written report denominated as List of

petitioner,

Customers Covered by Saleswoman LERIMA PATULA w/ Differences in Records

Discrepancies.[5]

and

Guivencans so-called

Summary

(Final

Report)

of

as per Audit Duly Verified March 16-20, 1997 marked as Exhibit A; and that
based on the report, petitioner had misappropriated the total amount

After the Prosecution rested its case, the Defense decided not to file a

ofP131,286.92.[3]

demurrer to evidence although it had manifested the intention to do so, and

instead

rested

itscase.The

Prosecution

and

Defense

submitted

their

respective memoranda, and submitted the case for decision.[6]

upon which her conviction was based, was falsification, an offense not
alleged or included in the Information under which she was arraigned and
pleaded not guilty, and that said judgment likewise blatantly ignored and

On January 28, 2004, the RTC, stating that inasmuch as petitioner had opted

manifestly disregarded the rules on admission of evidence in that the

not to present evidence for her defense the Prosecutions evidence remained

documentary evidence admitted by the trial court were all private

unrefuted and uncontroverted,[7]rendered its decision finding petitioner

documents, the due execution and authenticity of which were not proved in

guilty of estafa, to wit:

accordance with Sec. 20 of Rule 132 of the Revised Rules on Evidence,

petitioner

Wherefore, in the light of the foregoing facts and

circumstances,
the
Court
finds
ANNA
LERIMA
PATULA guilty beyond reasonable doubt of the crime of Estafa
under Art. 315 par (1b) of the Revised Penal Code and
accordingly, she is hereby sentenced to suffer an
INDETERMINATE PENALTY of imprisonment of 8 years and 1
day of prision mayor as minimum to 18 years and 4 months
of reclusion temporal as maximum with all the accessory
penalties provided by law and to indemnify private
complainant the amount of P131,286.92 with interest at 12%
per annum until fully paid and to pay the costs.
Pursuant to Sec. 2, Rule 114 of the Revised Rules of Criminal
Procedure, the cash bail put up by the accused shall be
effective only until the promulgation of this judgment.
SO ORDERED.[8]

Petitioner filed a motion for reconsideration, butthe RTC denied the motion
on May 7, 2004.[9]

has

directly

appealed

to

the

Court via petition

for

on certiorari, positing the following issues, to wit:

1. WHETHER THE ACCUSED OR ANY ACCUSED FOR THAT
MATTER , CHARGED OF ESTAFA UNDER ART. 315, PAR. 1 (B)
OF THE REVISED PENAL CODE CAN BE CONVICTED UPON OR
BY EVIDENCE OF FALSIFICATION WHICH IS EVEN (SIC) NOT
ALLEGED IN THE INFORMATION.
2. WHETHER
THE
ACCUSEDS
CONSTITUTIONAL
AND
STATUTORY RIGHT TO BE INFORMED OF THE NATURE AND
CAUSE OF THE ACCUSATION AGAINST HER WAS VIOLATED
WHEN SHE WAS CONVICTED UPON OR BY EVIDENCE OF
FALSIFICATION CONSIDERING THAT THE CHARGE AGAINST
HER IS ESTAFA THROUGH MISAPPROPRIATION UNDER ART.
315, PAR. 1 (B) OF THE REVISED PENAL CODE.
3. WHETHER OR NOT THE TRIAL COURT ERRED IN ADMITTING
IN EVIDENCE, EXHIBITS B TO YY-YY-2, ALL PRIVATE
DOCUMENTS, THE DUE EXECUTION AND AUTHENTICITY OF
WHICH WERE NOT PROVED IN ACCORDANCE WITH SEC. 20,
RULE 132 OF THE SAID REVISED RULES ON EVIDENCE ASIDE
FROM THE FACT THAT SAID EXHIBITS TEND TO PROVE
FALSIFICATION BY THE ACCUSED, A CRIME NEITHER CHARGED
NOR ALLEGED IN THE INFORMATION.

Issues

Insisting that the RTCs judgment grossly violated [her] Constitutional and
statutory right to be informed of the nature and cause of the accusation
against her because, while the charge against her is estafa under Art. 315,
par. 1 (b) of the Revised Penal Code, the evidence presented against her and

4. WHETHER OR NOT THE TRIAL COURT ERRED IN ADMITTING

THE TESTIMONY OF KAREN GUIVENCAN DESPITE THE
OBJECTION THAT SAID TESTIMONY WHICH TRIED TO PROVE
THAT THE ACCUSED FALSIFIED EXHIBITS B TO YY-YY2INCLUSIVE VIOLATED THE ACCUSEDS CONSTITUTIONAL
RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF THE
ACCUSATION AGAINST HER, FOR BEING IRRELEVANT AND
IMMATERIAL SINCE THE CHARGE AGAINST THE ACCUSED
IS ESTAFA UNDER ART. 315, PAR. 1 (B) OF THE REVISED
PENAL CODE.

review

5. WHETHER OR NOT THE TRIAL COURT ERRED IN

CONCLUDING THAT THE EVIDENCE OF THE PROSECUTION
REMAINS UNREFUTED AND UNCONTROVERTED DESPITE
ACCUSEDS OBJECTION THAT SAID EVIDENCE IS IMMATERIAL
AND IRRELEVANT TO THE CRIME CHARGED.
6. WHETHER OR NOT THE DEFENSES NOT CROSS-EXAMINING
KAREN GUIVENCAN FOR THE REASON THAT HER TESTIMONY
IS IMMATERIAL AND IRRELEVANT AS IT TENDED TO PROVE AN
OFFENSE NOT CHARGED IN INFORMATION RESULTED IN THE
ADMISSION OF SAID TESTIMONY AS BEING UNREFUTED AND
UNCONTROVERTED, AND WHETHER OR NOT THE DEFENSES
OBJECTION WOULD NOT BE CONSIDERED WAIVED IF THE
DEFENSE CROSS-EXAMINED SAID WITNESS.
7. WHETHER OR NOT THE TRIAL COURT ERRED IN RULING
THAT EXHIBIT A, WHICH IS THE LIST OF CUSTOMERS
COVERED
BY
SALESWOMAN
LERIMA
PATULA
WITH
DIFFERENCE IN RECORD IS NOT HEARSAY AND SELF-SERVING.
[10]

Failure of information to allege falsification

did not violate petitioners right to be informed
of thenatureand cause of the accusation

Petitioner contends that the RTC grossly violated her Constitutional right to
be informed of the nature and cause of the accusation when: (a) it held that
the information did not have to allege her falsification of the duplicate
receipts, and (b) when it convicted her of estafa under Article 315, paragraph
1(b) of the Revised Penal Codeby relying on the evidence on falsification.

The contentionof petitioner cannot be sustained.

The foregoing issues are now restatedas follows:
The Bill of Rights guaranteessome rightsto every person accused of a crime,
1.
Whether or not the failure of the information
for estafa to allege the falsification of the duplicate
receipts issued by petitioner to her customersviolated
petitioners right to be informed of the nature and cause
of the accusation;
2.
Whether or not the RTC gravely erred in admitting
evidence
of
the
falsification
of
the
duplicate
receiptsdespite the information not alleging the
falsification;
3.
Whether or not the ledgers and receipts (Exhibits B
to YY, and their derivatives, inclusive) were admissible as
evidence of petitioners guilt for estafaas chargeddespite
their not being duly authenticated;and
4.
Whether or not Guivencanstestimony onthe ledgers
and receipts (Exhibits B to YY, and their derivatives,
inclusive) to prove petitioners misappropriation or
conversion wasinadmissible for being hearsay.

among them the right to be informed of the nature and cause of the
accusation, viz:
Section 14. (1) No person shall be held to answer for a
criminal offense without due process of law.
(2) In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and shall
enjoy the right to be heard by himself and counsel, to be
informed of the nature and cause of the accusation
against him, to have a speedy, impartial, and public trial, to
meet the witnesses face to face, and to have compulsory
process to secure the attendance of witnesses and the
production of evidence in his behalf. However, after
arraignment, trial may proceed notwithstanding the absence
of the accused provided that he has been duly notified and
his failure to appear is unjustifiable.

Ruling
Rule 110 of the Revised Rules of Court, the rule then in effect when the
information was filed in the RTC, contained the following provisions on the
The petition is meritorious.
proper manner of alleging the nature and cause of the accusation in the
I

information, to wit:

Section 8.Designation of the offense. Whenever possible, a

complaint or information should state the designation given
to the offense by the statute, besides the statement of the
acts or omissions constituting the same, and if there is no
such designation, reference should be made to the section or
subsection of the statute punishing it. (7)
Section 9.Cause of accusation. The acts or omissions
complained of as constituting the offense must be stated in
ordinary and concise language without repetition, not
necessarily in the terms of the statute defining the offense,
but in such form as is sufficient to enable a person of
common understanding to know what offense is intended to
be charged, and enable the court to pronounce proper
judgment. (8)

exceed twenty years. In such cases, and in connection with

the accessory penalties which may be imposed under the
provisions of this Code, the penalty shall be termed prision
mayor or reclusion temporal, as the case may be.
2nd. The penalty of prision correccional in its minimum and
medium periods, if the amount of the fraud is over 6,000
pesos but does not exceed 12,000 pesos;
3rd. The penalty of arresto mayor in its maximum period
to prision correccional in its minimum period if such amount
is over 200 pesos but does not exceed 6,000 pesos; and
4th. By arresto mayor in its maximum period, if such amount
does not exceed 200 pesos, provided that in the four cases
mentioned, the fraud be committed by any of the following
means:

The importance of the proper manner of alleging the nature and cause of the

xxx

accusation in the informationshould never be taken for granted by the

1. With unfaithfulness or abuse of confidence, namely:

xxx

State. An accused cannot be convicted of an offense that is not clearly

charged in the complaint or information. To convict him of an offense other
than that charged in the complaint or information would be violative of the
Constitutional right to be informed of the nature and cause of the accusation.
[11] Indeed, the accused cannot be convicted of a crime, even if duly

(b) By misappropriating or converting, to the prejudice

of another, money, goods, or any other personal
property received by the offender in trust or on
commission, or for administration, or under any other
obligation involving the duty to make delivery of or to
return the same, even though such obligation be
totally or partially guaranteed by a bond; or by
denying having received such money, goods, or other
property.

proven, unless the crime is alleged or necessarily included in the information

xxx
filed against him.
The elements of the offense charged were as follows:
The crime of estafacharged against petitioner was defined and penalized by
Article 315, paragraph 1 (b), Revised Penal Code, viz:
Article 315. Swindling (estafa). Any person who shall defraud
another by any of the means mentioned hereinbelow shall be
punished by:
1st. The penalty of prision correccional in its maximum period
to prision mayor in its minimum period, if the amount of the
fraud is over 12,000 pesos but does not exceed 22,000
pesos, and if such amount exceeds the latter sum, the
penalty provided in this paragraph shall be imposed in its
maximum period, adding one year for each additional 10,000
pesos; but the total penalty which may be imposed shall not

(a) That the offender received money, goods or other

personal property in trust, or on commission, or for
administration, or under any other obligation involving
the duty to make delivery of, or to return, the same;
(b) That the offender misappropriated or converted such
money, goods or other personal property, or denied his
part in its receipt;
(c) That the misappropriation or conversion or denial was
to the prejudice of another; and
(d) That the offended party made a demand on the
offender for the delivery or return of such money, goods
or other personal property.[12]

According

to

the

theory

and

proof

of

the

Prosecution,

petitioner

misappropriated or converted the sums paid by her customers, and later

falsified the duplicates of the receipts before turning such duplicates to her
employer to show that the customers had paid less than the amounts
actually reflected on the original receipts. Obviously, she committed the
falsification

in

order

to

conceal

her

misappropriation

or

conversion.

Considering that the falsificationwas not an offense separate and distinct

from the estafacharged against her, the Prosecution could legitimately prove
her acts of falsification as its means of establishing her misappropriation or
conversion as an essential ingredient of the crime duly alleged in the
information. In that manner, her right to be informed of the nature and cause
of the accusation against her was not infringed or denied to her.

We consider it inevitable to conclude that the information herein completely

pleaded the estafa defined and penalized under Article 315, paragraph 1
(b), Revised Penal Codewithin the context of the substantive lawand the
rules. Verily, there was no necessity for the information to allege the acts of
falsification by petitioner because falsification was not an element of
the estafacharged.

or altering the amounts in the duplicates of the receipts and

therefore, her testimony is immaterial and irrelevant as the
charge is misappropriation under Art. 315, paragraph (1b) of
the Revised Penal Code and there is no allegation whatsoever
of any falsification or alteration of amounts in the
[i]nformation under which the accused was arraigned and
pleaded NOT GUILTY. Accused, thus, maintains that the
testimony of Karen Guivencan should therefore not be
considered at all as it tended to prove an offense not charged
or included in the [i]nformation and would violate [the]
accuseds constitutional and statutory right to be informed of
the nature and cause of the accusation against her. The Court
is not in accord with such posture of the accused.
It would seem that the accused is of the idea that
because the crime charged in the [i]nformation is
merely [e]stafa and not [e]stafa [t]hru [f]alsification of
documents,
the
prosecution
could
not
prove
falsification. Such argumentation is not correct. Since
the
information
charges
accused
only
of
misappropriation pursuant to Art. 315, par. (1b) of the
Revised [P]enal Code, the Court holds that there is no
necessity of alleging the falsification in the
Information as it is not an element of the crime
charged.
Distinction should be made as to when the crimes of
Estafa and Falsification will constitute as one complex
crime and when they are considered as two separate
offenses. The complex crime of Estafa Through
Falsification of Documents is committed when one has
to falsify certain documents to be able to obtain
money or goods from another person. In other words,
the falsification is a necessary means of committing
estafa. However, if the falsification is committed to
conceal the misappropriation, two separate offenses
of estafa and falsification are committed. In the
instant case, when accused collected payments from
the customers, said collection which was in her
possession was at her disposal. The falsified or
erroneous entries which she made on the duplicate
copies of the receipts were contrived to conceal some
amount of her collection which she did not remit to
the company xxx.[13]

Not surprisingly,the RTC correctly dealt in its decision with petitioners

concern thuswise:
In her Memorandum, it is the contention of [the] accused that
[the] prosecutions evidence utterly fails to prove the crime
charged. According to the defense, the essence of Karen
Guivencans testimony is that the accused falsified the
receipts issued to the customers served by her by changing

II
Testimonial and documentary evidence,being hearsay,
did not prove petitioners guilt beyond reasonable doubt

Nonetheless, in all criminal prosecutions, the Prosecution bears the burden to

establish the guilt of the accused beyond reasonable doubt. In discharging

marked and formally offered as Exhibits B to YY, and their derivatives,

this burden, the Prosecutions duty is to prove each and every element of the

inclusive.

crime charged in the information to warrant a finding of guilt for that crime or
for any other crime necessarily included therein.[14] The Prosecution must

On his part, Go essentially described for the trial court the various duties of

further prove the participation of the accused in the commission of the

petitioner as Footluckers sales representative. On her part, Guivencan

offense.[15]In doing all these, the Prosecution must rely on the strength of its

conceded having no personal knowledge of the amounts actually received by

own evidence, and not anchor its success upon the weakness of the evidence

petitioner from the customersor remitted by petitioner to Footluckers.This

of the accused. The burden of proof placed on the Prosecution arises from the

means that persons other than Guivencan prepared Exhibits B to YY and their

presumption of innocence in favor of the accused that no less than the

derivatives, inclusive,and that Guivencan based her testimony on the entries

Constitution has guaranteed.[16]Conversely, as to his innocence, the

found in the receipts supposedly issued by petitioner and in the ledgers held

accused has no burden of proof,[17]that he must then be acquitted and set

by Footluckers corresponding to each customer, as well as on the unsworn

free should the Prosecution not overcome the presumption of innocence in

statements of some of the customers. Accordingly, her being the only

his favor.In other words, the weakness of the defense put up by the accused

witness who testified on the entries effectively deprived the RTC of the

is inconsequential in the proceedings for as long as the Prosecution has not

reasonable opportunity to validate and test the veracity and reliability of the

discharged its burden of proof in establishing the commission of the crime

entries as evidence of petitioners misappropriation or conversion through

charged and in identifying the accused as the malefactor responsible for it.

cross-examination by petitioner. The denial of that opportunity rendered

theentire proof of misappropriation or conversion hearsay, and thus

Did the Prosecution adduce evidence that proved beyond reasonable doubt

unreliable and untrustworthy for purposes of determining the guilt or

the guilt of petitioner for the estafa charged in the information?

innocence of the accused.

To establish the elements of estafaearlier mentioned, the Prosecution

presented

the

testimonies

of

Go

and

Guivencan,

and

various

To elucidate why the Prosecutions hearsay evidence was unreliable and

documentsconsisting of: (a) the receipts allegedly issued by petitioner to

untrustworthy, and thus devoid of probative value, reference is made

each of her customers upon their payment, (b) the ledgers listing the

toSection 36 of Rule 130,Rules of Court, a rule that states that a witness can

accounts pertaining to each customer with the corresponding notations of the

testify only to those facts that she knows of her personal knowledge; that is,

receipt numbers for each of the payments, and (c) the confirmation sheets

which are derived from her own perception, except as otherwise provided in

accomplished by Guivencan herself.[18]The ledgers and receipts were

the Rules of Court. The personal knowledge of a witness is a substantive

prerequisite for accepting testimonial evidence that establishes the truth of a

Moreover, the theory of the hearsay rule is that when a human utterance is

disputed fact. A witness bereft ofpersonal knowledge of the disputed fact

offered as evidence of the truth of the fact asserted, the credit of the assertor

cannot be called upon for that purpose because her testimony derives its

becomes the basis of inference, and, therefore, the assertion can be received

value not from the credit accorded to her as a witness presently testifying but

as evidence only when made on the witness stand, subject to the test of

from the veracity and competency of the extrajudicial source of her

cross-examination. However, if an extrajudicial utterance is offered, not as an

information.

assertion to prove the matter asserted but without reference to the truth of
the matter asserted, the hearsay rule does not apply. For example, in a

In case a witness is permitted to testify based on what she has heard another

slander case, if a prosecution witness testifies that he heard the accused say

person say about the facts in dispute, the person from whom the witness

that the complainant was a thief, this testimony is admissible not to prove

derived the information on the facts in dispute is not in court and under

that the complainant was really a thief, but merely to show that the accused

oath to be examined and cross-examined. The weight of such testimony

uttered those words.[22] This kind of utterance ishearsay in character but is

thendepends not upon theveracity of the witness but upon the veracity of the

not legal hearsay.[23]The distinction is, therefore, between (a) the fact that

other person giving the information to the witness without oath. The

the statement was made, to which the hearsay rule does not apply, and (b)

information cannot be tested because the declarant is not standing in court

the truth of the facts asserted in the statement, to which the hearsay rule

as a witness andcannot, therefore, be cross-examined.

applies.[24]

It is apparent, too, that a person who relates a hearsay is not obliged to enter

Section 36, Rule 130 of the Rules of Court is understandably not the only rule

into any particular, to answer any question, to solve any difficulties, to

that explains why testimony that is hearsay should be excluded from

reconcile any contradictions, to explain any obscurities, to remove any

consideration. Excluding hearsay also aims to preserve the right of the

ambiguities; and that she entrenches herself in the simple assertion that she

opposing party to cross-examine the originaldeclarant claiming to have a

was told so, and leaves the burden entirely upon the dead or absent author.

direct knowledge of the transaction or occurrence.[25]If hearsay is allowed,

[19] Thus, the rule against hearsay testimony rests mainly on the ground that

the right stands to be denied because the declarant is not in court.[26]It is

there was no opportunity to cross-examine the declarant.[20] The testimony

then to be stressed that the right to cross-examine the adverse partys

may have been given under oath and before a court of justice, but if it is

witness,

offered against a party who is afforded no opportunity to cross-examine the

witness, it is hearsay just the same.[21]

being the only means of testing the credibility of witnesses and their
testimonies, is essential to the administration of justice.

To address the problem of controlling inadmissible hearsay as evidence to

We thus stress that the rule excluding hearsay as evidence is based upon

establish the truth in a dispute while also safeguardinga partys right to cross-

serious

examine

two

of hearsay evidence due to its not being given under oath or solemn

solutions. The firstsolution is to require that allthe witnesses in a judicial trial

affirmation and due to its not being subjected to cross-examination by the

or hearing be examined only in courtunder oath or affirmation. Section 1,

opposing counsel to test the perception, memory, veracity and articulateness

Rule 132 of the Rules of Court formalizes this solution,viz:

of the out-of-court declarant or actor upon whose reliability the worth of the

her

adversarys

witness,the Rules

of

Court offers

concerns

about

the

trustworthiness

and reliability

out-of-court statement depends.[27]

Section 1. Examination to be done in open court. - The
examination of witnesses presented in a trial or hearing shall
be done in open court, and under oath or affirmation. Unless
the witness is incapacitated to speak, or the question calls for
a different mode of answer, the answers of the witness shall
be given orally. (1a)

Based on the foregoing considerations, Guivencans testimony as well as

Exhibits B to YY, and their derivatives, inclusive, must be entirely rejected as
proof of petitioners misappropriation or conversion.

The secondsolution is to require that all witnesses besubject to the crossexamination by the adverse party. Section 6, Rule 132 of the Rules of
Courtensuresthis solutionthusly:
Section 6. Cross-examination; its purpose and extent. Upon
the termination of the direct examination, the witness may be
cross-examined by the adverse party as to any matters
stated in the direct examination, or connected therewith, with
sufficient fullness and freedom to test his accuracy and
truthfulness and freedom from interest or bias, or the
reverse, and to elicit all important facts bearing upon the
issue. (8a)

III
Lack of their proper authentication rendered
Exhibits B to YY and their derivatives
inadmissible as judicial evidence

Petitioner also contends that the RTC grossly erred in admitting as evidence
Exhibits B to YY, and their derivatives, inclusive, despite their being private
documents that were not duly authenticated as required by Section 20, Rule
132 of the Rules of Court.

Although the second solution traces its existence to a Constitutional precept

Section 19, Rule 132 of the Rules of Courtdistinguishes between a public
relevant

to

criminal

cases, i.e.,

Section

14,

(2),

Article

III,

of

the
document and a private document for the purpose of their presentation in

1987 Constitution,which guarantees that: In all criminal prosecutions, the

evidence, viz:
accused shall xxx enjoy the right xxx to meet the witnesses face to face xxx ,
the rule requiring the cross-examination by the adverse party equally applies
to non-criminal proceedings.

Section 19. Classes of documents. For the purpose of their

presentation in evidence, documents are either public
or private.

Public documents are:

(a) The written official acts, or records of the official acts of
the sovereign authority, official bodies and tribunals, and
public officers, whether of the Philippines, or of a foreign
country;

adverse party;[29](c) when thegenuineness and authenticity of the document

have been admitted;[30] or (d) when the document is not being offered as
genuine.[31]

(b) Documents acknowledged before a notary public except

last wills and testaments, and
(c) Public records, kept in the Philippines, of private
documents required by law to be entered therein.

There is no question that Exhibits B to YY and their derivatives were private

documents because private individuals executed or generated them for

All other writings are private.

private or business purposes or uses. Considering that none of the exhibits
came under any of the four exceptions, they could not be presented and
The nature of documents as either public or private determines how the
admitted as evidence against petitioner without the Prosecution dutifully
documents may be presented as evidence in court. A public document, by
seeing to their authentication in the manner provided in Section20 of Rule
virtue of its official or sovereign character, or because it has been
132 of the Rules of Court,viz:
acknowledged before a notary public (except a notarial will) or a competent
public official with the formalities required by law, or because it is a public
record of a private writing authorized by law, is self-authenticating and

Section 20. Proof of private documents. Before any private

document offered as authentic is received in evidence,
its due
execution
and
authenticity
must
be
proved either:

requires no further authentication in order to be presented as evidence in

court.In contrast, a private document is any other writing, deed, or
instrument executed by a private person without the intervention of a notary

(a) By anyone who saw the document executed or

written; or
(b) By evidence of the genuineness of the signature or
handwriting of the maker.

or other person legally authorized by which some disposition or agreement is

proved or set forth. Lacking the official or sovereign character of a public

Any other private document need only be identified as that

which it is claimed to be.

document, or the solemnities prescribed by law, a private document requires

authentication in the manner allowed by law or the Rules of Court before its

The Prosecutionattempted to have Go authenticate the signature of petitioner

acceptance as evidence in court. The requirement of authentication of a

in various receipts, to wit:

private document is excused only in four instances, specifically: (a) when the
document is an ancient one within the context of Section 21,[28] Rule 132 of
the Rules of Court; (b) when the genuineness and authenticity of an
actionable document have not been specifically denied under oath by the

ATTY. ABIERA:
Q. Now, these receipts which you mentioned
which do not tally with the original receipts, do
you have copies of these receipts?
A. Yes, I have a copy of these receipts, but its not
now in my possession.
Q. But when asked to present those receipts
before this Honorable Court, can you assure this

COURT:
Mark the receipt as Exhibit A.
ATTY. ABIERA:
And the signature be bracketed and be marked as
Exhibit A-1.

(Next Page)
ATTY ABIERA (continuing):
Honorable Court that you will be able to present
those receipts?
A. Yes.
Q. You are also familiar with the signature
of the accused in this case, Anna Lerima Patula?
A. Yes.
Q. Why
are
you
familiar
with
the
signature of the accused in this case?
A. I used to see her signatures in the payroll
and in the receipts also.
Q. Okay, I have here a machine copy of a
receipt which we would present this,or offer the
same as soon as the original receipts can be
presented, but for purposes only of your
testimony, Im going to point to you a
certain signature over this receipt number
FLDT96
20441, a
receipt
from
Cirila
Askin, kindly go over the signature and tell
the Honorable Court whether you are
familiar with the signature?
A. Yes, that is her signature.
INTERPRETER:
Witness is pointing to a signature above the
printed word collector.

(Next Page)
COURT:
Bracket the signature &mark it as Exh. A-1. What
is the number of that receipt?

ATTY. ABIERA:
Receipt No. 20441 dated August 4, 1996 the
statement that: received from Cirila Askin.[32]
xxx

As the excerpts indicate, Gos attempt at authentication of the signature of

petitioner on the receipt with serial number FLDT96 No. 20441 (a document
that was marked as Exhibit A, while the purported signature of petitioner

(Next Page)

thereon was marked as Exhibit A-1) immediately fizzled out after the

ATTY. ABIERA:
Q. Is this the only receipt wherein the name,
the signature rather, of the accused in this
case appears?
A. That is not the only one, there are many
receipts.
ATTY. ABIERA:
In order to save time, Your Honor, we will just
be presenting the original receipts Your
Honor, because its quite voluminous, so we will
just forego with the testimony of the witness but
we will just present the same using the
testimony of another witness, for purposes
of
identifying
the
signature
of
the
accused. We will request that this signature
which has been identified to by the witness in this
case be marked, Your Honor, with the reservation
to present the original copy and present the same
to offer as our exhibits but for the meantime, this
is only for the purposes of recording, Your Honor,
which we request the same, the receipt which has
just been identified awhile ago be marked as our
Exhibit A You Honor.

Prosecution admitted that the document was a meremachinecopy, not the

original. Thereafter, as if to soften its failed attempt, the Prosecution
expressly promised to produce at a later date the originalsof the receipt with
serial number FLDT96 No. 20441 and other receipts. But that promise was
not even true, because almost in the same breath the Prosecution offered to
authenticate the signature of petitioner on the receiptsthrougha different
witness (though then still unnamed). As matters turned out in the end, the
effort to have Go authenticate both themachinecopy of the receiptwith serial
number FLDT96 No. 20441 and the signature of petitioner on that receipt was
wasteful because the machine copy was inexplicablyforgotten and was no
longer evenincluded in the Prosecutions Offer of Documentary Evidence.

ATTY. ZERNA:
We pray, Your Honor, that this receipt identified
be marked as Exhibit B-3, receipt number 20441.

It is true that the original of the receipt bearing serial number FLDT96 No.
20441was

subsequentlypresented

as

Exhibit

Bthrough

Guivencan.
(Next Page)

However,the Prosecution did not establishthat the signature appearing on

COURT:
Mark it.
ATTY. ZERNA:
The signature of the collector be marked as
Q. By the way, there is a signature above
the name of the collector, are your familiar
with that signature? (shown to witness)
A. Yes.
Q. Whose signature is that?
A. Miss Patula.
Q. How do you know?
A. It can be recognized because of the word
Patula.
Q. Are you familiar with her signature?
A. Yes.
ATTY. ZERNA:
We pray that the signature be bracketed and
marked as Exhibit B-3-a
COURT:
Mark it.
ATTY. ZERNA:
The other receipt number 20045 be marked as
Exhibit B-4 and the signature as Exhibit B-4-a.
COURT:
Mark it.[33]

Exhibit B was the same signature that Go had earliersought to identify to be

the signature of petitioner (Exhibit A-1) on the machine copy (Exhibit A). This
is borne out by the fact that the Prosecution abandoned Exhibit A as the
marking nomenclature for the machine copyof the receipt bearing serial
number FLDT96 No. 20441 for all intents and purposes of this case, and used
the same nomenclature to referinstead toan entirely differentdocument
entitled List of Customers covered by ANA LERIMA PATULA w/difference in
Records as per Audit duly verified March 16-20, 1997.

In her case, Guivencans identification of petitioners signature on two receipts

based alone on the fact that the signatures contained the legible family name
of Patula was ineffectual, and exposed yet another deep flaw infecting the
documentary evidence against petitioner. Apparently, Guivencan could not
xxx
honestly identify petitioners signature on the receipts either because she
lacked familiarity with such signature, or because she had not seen petitioner
affix her signature on the receipts, as the following excerpts from her
testimony bear out:
ATTY. ZERNA to witness:
Q.
There are two (2) receipts attached
here in the confirmation sheet, will you go over
these Miss witness?
A.
This was the last payment which is fully
paid by the customer. The other receipt is the one
showing her payment prior to the last payment.
COURT:
Q. Where did you get those two (2) receipts?
A. From the customer.
Q. And who issued those receipts?
A. The saleswoman, Miss Patula.

ATTY. ZERNA:
Q. Ms. Witness, here is a receipt colored white,
number 26603 issued to one Divina Cadilig. Will
you please identify this receipt if this is the
receipt of your office?
A.Yes.
Q.There is a signature over the portion for the
collector. Whose signature is this?
A.Ms. Patula.
Q.How do you know that this is her signature?
A.Because we can read the Patula.[34]

We also have similar impressions of lack of proper authentication as to the

ledgers the Prosecution presented to prove the discrepancies between the
amountspetitioner hadallegedly received from the customers and the

report on petitioners supposed misappropriation or conversion, revealing her

between the original and the duplicate, will you

please enlighten the Honorable Court on
that discrepancy which you said?
A. Like in this case of Cirila Askin, she has
already fully paid. Her ledger shows a zero
balance she has fully paid while in the original

lack of independent knowledge of the veracity of the entries, as the following

(Next page)

excerpts of her testimony show:

ATTY. ZERNA to witness:
Q. What is your basis of saying that your
office records showed that this Cecilia Askin
has an account of P10,791.75?
ATTY. DIEZ:
The question answers itself, You Honor, what is
the basis, office record.
COURT:
Let the witness answer.
WITNESS:
A. I made the basis on our ledger in the
office. I just copied that and showed it to the
customers for confirmation.

WITNESS (continuing):
[r]eceipt she has a balance of Ten Thousand
Seven hundred Ninety-one Pesos and
Seventy-five Centavos (10,791.75).
COURT:
Q. What about the duplicate receipt, how much is
indicated there?
A. The customer has no duplicate copy because it
was already forwarded to the Manila Office.
Q. What then is your basis in the entries in the
ledger showing that it has already a zero
balance?
A. This is the copy of the customer while in the
office, in the original receipt she has still a
balance.
xxx
ATTY. ZERNA:
The confirmation sheet ---

amounts she had actually remitted to Footluckers. Guivencanexclusively

relied on the entries of the unauthenticated ledgersto support her audit

ATTY. ZERNA to witness:

Q. What about the receipts?
COURT:
Make a follow-up question and what was the
result when you copied that amount in the ledger
and you had it confirmed by the customers, what
was the result when you had it confirmed by the
customers?
WITNESS:
A. She has no more balance but in our office she
has still a balance of P10,971.75.
ATTY. ZERNA to witness:
Q. Do you have a-whats the basis of saying that
the balance of this customer is still P10,971.75

COURT:
The confirmation sheet was the one you
referred to as the receipt in your earlier
testimony? Is that what you referred to as the
receipts, the original receipts?
A. This is what I copied from the ledger.
Q. So where was that(sic) original receipt which
you said showed that that particular customer
still has a balance of Ten Thousand something?
A. The receipt is no longer here.
Q. You mean the entry of that receipt was
already entered in the ledger?

(Next Page)
ATTY. ZERNA (continuing):
[i]n your office?
COURT:
That was already answered paero, the office has
a ledger.
Q. Now, did you bring the ledger with you?
A. No, Maam.[35]

A. Yes.[36]

In the face of the palpable flaws infecting the Prosecutions evidence, it should
come as no surprise that petitioners counsel interposed timely objections.

(Continuation of the Direct Examination of

Karen Guivencan on August 13, 2002)
ATTY. ZERNA to witness:
Q. Okay, You said there

Yet,

the

RTC

mysteriously

overruled

the

objections

and

Prosecutionto present the unauthenticated ledgers, as follows:

are

discrepancies

allowedthe

(Continuation of the Direct Examination of

Witness Karen Guivencan on September 11, 2002)
ATTY. ZERNA:
CONTINUATION OF DIRECT-EXAMINATION
Q Ms. Witness, last time around you were
showing us several ledgers. Where is it now?
A It is here.
Q Here is a ledger of one Divina Cadilig. This
Divina Cadilig, how much is her account in your
office?
ATTY. DIEZ:
Your Honor please before the witness will
proceed to answer the question, let me
interpose our objection on the ground that
this ledger has not been duly identified to
by the person who made the same. This
witness will be testifying on hearsay
matters because the supposed ledger was
not identified to by the person who made
the same.
COURT:
Those ledgers were already presented in the last
hearing. I think they were already duly identified
by this witness. As a matter of fact, it was she
who brought them to court
(Next Page)
COURT (cont.):
because these were the ledgers on file in their
office.
ATTY. DIEZ
That is correct, Your Honor, but the person who
made the entries is not this witness, Your
Honor. How do we know that the entries
there is (sic) correct on the receipts
submitted to their office.
COURT:
Precisely, she brought along the receipts also to
support that. Let the witness answer.
WITNESS:
A Its the office clerk in-charge.
COURT:
The one who prepared the ledger is the
office clerk.
ATTY. ZERNA:
She is an auditor, Your Honor. She has been
qualified and she is the auditor of Footluckers.
COURT:

I think, I remember in the last setting also, she

testified where those entries were taken. So, you
answer the query of counsel.
xxx
ATTY. DIEZ:
Your Honor please, to avoid delay, may I
interpose a continuing objection to the
questions profounded(sic) on those ledgers
on the ground that, as I have said, it is
hearsay.
COURT:
Okey(sic). Let the continuing objection be noted.
Q (To Witness) The clerk who allegedly was
the one who prepared the entries on those
ledgers, is she still connected with
Footluckers?
A She is no longer connected now, Your Honor,
COURT:
Alright proceed.
(Next Page)
ATTY. ZERNA:
Your Honor, these are entries in the normal
course of business. So, exempt from the
hearsay rule.
COURT:
Okey(sic), proceed.[37]

The mystery shrouding the RTCs soft treatment of the Prosecutions flawed
presentation was avoidable simply by the RTC adhering to the instructions of
the rules earlier quoted, as well as withSection 22 of Rule 132 of the Rules of
Court,which contains instructions on how to prove the genuineness of a
handwriting in a judicial proceeding, as follows:
Section 22. How genuineness of handwriting proved. The
handwriting of a person may be proved by any witness who
believes it to be the handwriting of such person because he
has seen the person write, or has seen writing
purporting to be his upon which the witness has acted
or been charged, and has thus acquired knowledge of the

handwriting of such person. Evidence respecting the

handwriting may also be given by a comparison, made by
the witness or the court, with writings admitted or
treated as genuine by the party against whom the
evidence is offered, or proved to be genuine to the
satisfaction of the judge. (Emphases supplied)

steel billets received. Even though she prepared the

summary of the received steel billets, she based the
summary only on the receipts prepared by other
persons. Her testimony on steel billets received was
hearsay. It has no probative value even if not objected
to at the trial.

If it is already clear that Go and Guivencan had not themselves seen the

On the second issue, petitioner avers that King failed to

properly
authenticate
respondents documentary
evidence. Under Section 20, Rule 132, Rules of
Court, before a private document is admitted in
evidence, it must be authenticated either by the
person who executed it, the person before whom its
execution was acknowledged, any person who was
present and saw it executed, or who after its
execution, saw it and recognized the signatures, or
the person to whom the parties to the instruments
had previously confessed execution thereof. In this
case, respondent admits that King was none of the
aforementioned
persons. She
merely
made
the
summary of the weight of steel billets based on the
unauthenticated bill of lading and the SGS report.
Thus, the summary of steel billets actually received
had no proven real basis, and Kings testimony on this
point could not be taken at face value.

execution or signing of the documents,the Prosecution surely did not

authenticate Exhibits B to YY and their derivatives conformably with the
aforequoted rules. Hence, Exhibits B to YY, and their derivatives, inclusive,
were inescapably bereft of probative value as evidence. That was the onlyfair
and just result, as the Court held in Malayan Insurance Co., Inc. v. Philippine
Nails and Wires Corporation:[38]
On the first issue, petitioner Malayan Insurance Co., Inc.,
contends that Jeanne Kings testimony was hearsay
because she had no personal knowledge of the
execution of the documents supporting respondents
cause of action, such as the sales contract, invoice, packing
list, bill of lading, SGS Report, and the Marine Cargo
Policy. Petitioner avers that even though King was personally
assigned to handle and monitor the importation of Philippine
Nails and Wires Corporation, herein respondent, this cannot
be equated with personal knowledge of the facts which gave
rise to respondents cause of action. Further, petitioner
asserts, even though she personally prepared the summary
of weight of steel billets received by respondent, she did not
have personal knowledge of the weight of steel billets
actually shipped and delivered.
At the outset, we must stress that respondents cause of
action is founded on breach of insurance contract covering
cargo consisting of imported steel billets. To hold petitioner
liable, respondent has to prove, first, its importation of
10,053.400
metric
tons
of
steel
billets
valued
at P67,156,300.00, and second, the actual steel billets
delivered to and received by the importer, namely the
respondent. Witness Jeanne King, who was assigned to
handle respondents importations, including their insurance
coverage, has personal knowledge of the volume of steel
billets being imported, and therefore competent to testify
thereon. Her testimony is not hearsay, as this doctrine is
defined in Section 36, Rule 130 of the Rules of
Court.However, she is not qualified to testify on the
shortage in the delivery of the imported steel billets.
She did not have personal knowledge of the actual

xxx Under the rules on evidence, documents are either public

or private. Private documents are those that do not fall under
any of the enumerations in Section 19, Rule 132 of the Rules
of Court.Section 20of the same law, in turn, provides that
before any private document is received in evidence, its due
execution and authenticity must be proved either by anyone
who saw the document executed or written, or by evidence of
the genuineness of the signature or handwriting of the
maker. Here, respondents documentary exhibits are
private documents. They are not among those
enumerated in Section 19, thus, their due execution
and authenticity need to be proved before they can be
admitted in evidence.With the exception concerning
the summary of the weight of the steel billets
imported,
respondent
presented
no
supporting evidence concerning their authenticity.
Consequently, they cannot be utilized to prove less of
the insured cargo and/or the short delivery of the
imported steel billets. In sum, we find no sufficient
competent evidence to prove petitioners liability.

That the Prosecutions evidence was left uncontested because petitioner

decided not to subject Guivencan to cross-examination, and did not tender
her contrary evidencewas inconsequential. Although the trial court had

overruled the seasonable objections to Guivencans testimony bypetitioners

counsel due to the hearsay character, it could not be denied thathearsay
evidence, whether objected to or not, had no probative value.[39]Verily, the
flaws of the Prosecutions evidence were fundamental and substantive, not

(c) The entrant was in a position to know the facts stated

in the entries;
(d) The entries were made in his professional capacity or
in the performance of a duty, whether legal, contractual,
moral, or religious;
(e) The entries were made in the ordinary or regular
course of business or duty.[41]

merely technical and procedural, and were defects that the adverse partys
waiver of her cross-examination or failure to rebutcould not set right or cure.
Nor did the trial courts overruling of petitioners objections imbue the flawed

The Court has to acquit petitioner for failure of the State to establish her guilt

evidence with any virtue and value.

beyond reasonable doubt. The Court reiterates that in the trial of every
criminal case, a judge must rigidly test the States evidence of guilt in order to

Curiously, the RTC excepted the entries in the ledgers from the application of

ensure that such evidence adhered to the basic rules of admissibility before

the hearsay rule by also terselystating that the ledgers were prepared in the

pronouncing an accused guilty of the crime charged upon such evidence. The

regular course of business.[40]Seemingly, the RTC applied Section 43, Rule

failure of the judge to do so herein nullified the guarantee of due of process

130 of the Rules of Court, to wit:

of law in favor of the accused, who had no obligation to prove her innocence.
Heracquittal should follow.

Section 43. 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.

IV
No reliable evidence on damage

Conformably with finding the evidence of guilt unreliable, the Court declares
that the disposition by the RTC ordering petitioner to indemnify Footluckers in

This was another grave error of the RTC.The terse yet sweeping mannerof

the amount ofP131,286.92 with interest of 12% per annum until fully paid

justifying the application of Section 43 was unacceptable due to the need to

was not yet shown to be factually founded. Yet, she cannot now be absolved

show the concurrence of the several requisites before entries in the course of

of civil liability on that basis. Heracquittal has to bedeclared as without

business could be excepted from the hearsay rule. The requisites are as

prejudice to the filing of a civil action against her for the recovery of any

follows:

amount that she may still owe to Footluckers.

(a) The person who made the entry must be dead or
unable to testify;
WHEREFORE,
(b) The entries were made at or near the time of the
transactions to which they refer;

the

Court SETS

ASIDE

ANDREVERSESthe

decision

convicting ANNA LERIMA PATULAof estafa as charged, and ACQUITS her

1. Police Department report:

for failure of the Prosecution to prove her guilt beyond reasonable doubt,
without prejudice to a civil action brought against her for

the recoveryof any amount still owing in favor of Footluckers Chain of Stores,
Inc.

No pronouncement on costs of suit.

Investigation disclosed that at about 4:00 P.M. March 18,

1948, while Leandro Flores was transferring gasoline from a
tank truck, plate No. T-5292 into the underground tank of the
Caltex Gasoline Station located at the corner of Rizal Avenue
and Antipolo Street, this City, an unknown Filipino lighted a
cigarette and threw the burning match stick near the main
valve of the said underground tank. Due to the gasoline
fumes, fire suddenly blazed. Quick action of Leandro Flores in
pulling off the gasoline hose connecting the truck with the
underground tank prevented a terrific explosion. However,
the flames scattered due to the hose from which the gasoline
was spouting. It burned the truck and the following
accessorias and residences.
2. The Fire Department report:

SO ORDERED.

G.R. No. L-12986

March 31, 1966

THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the

HEIRS
OF
DOMINGA
ONG,petitioners-appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF
APPEALS, respondents-appellees.
Ross,
Selph,
Carrascoso
and
Bernabe Africa, etc. for the petitioners.

Janda

for

the

respondents.

MAKALINTAL., J.:
This case is before us on a petition for review of the decision of the Court of
Appeals, which affirmed that of the Court of First Instance of Manila
dismissing petitioners' second amended complaint against respondents.
The action is for damages under Articles 1902 and 1903 of the old Civil Code.
It appears that in the afternoon of March 18, 1948 a fire broke out at the
Caltex service station at the corner of Antipolo street and Rizal Avenue,
Manila. It started while gasoline was being hosed from a tank truck into the
underground storage, right at the opening of the receiving tank where the
nozzle of the hose was inserted. The fire spread to and burned several
neighboring houses, including the personal properties and effects inside
them. Their owners, among them petitioners here, sued respondents Caltex
(Phil.), Inc. and Mateo Boquiren, the first as alleged owner of the station and
the second as its agent in charge of operation. Negligence on the part of both
of them was attributed as the cause of the fire.
The trial court and the Court of Appeals found that petitioners failed to prove
negligence and that respondents had exercised due care in the premises and
with respect to the supervision of their employees.
The first question before Us refers to the admissibility of certain reports on
the fire prepared by the Manila Police and Fire Departments and by a certain
Captain Tinio of the Armed Forces of the Philippines. Portions of the first two
reports are as follows:

In connection with their allegation that the premises was (sic)

subleased for the installation of a coca-cola and cigarette stand, the
complainants furnished this Office a copy of a photograph taken
during the fire and which is submitted herewith. it appears in this
picture that there are in the premises a coca-cola cooler and a rack
which according to information gathered in the neighborhood
contained cigarettes and matches, installed between the gasoline
pumps and the underground tanks.
The report of Captain Tinio reproduced information given by a certain Benito
Morales regarding the history of the gasoline station and what the chief of the
fire department had told him on the same subject.
The foregoing reports were ruled out as "double hearsay" by the Court of
Appeals and hence inadmissible. This ruling is now assigned as error. It is
contended: first, that said reports were admitted by the trial court without
objection on the part of respondents; secondly, that with respect to the police
report (Exhibit V-Africa) which appears signed by a Detective Zapanta
allegedly "for Salvador Capacillo," the latter was presented as witness but
respondents waived their right to cross-examine him although they had the
opportunity to do so; and thirdly, that in any event the said reports are
admissible as an exception to the hearsay rule under section 35 of Rule 123,
now Rule 130.
The first contention is not borne out by the record. The transcript of the
hearing of September 17, 1953 (pp. 167-170) shows that the reports in
question, when offered as evidence, were objected to by counsel for each of
respondents on the ground that they were hearsay and that they were
"irrelevant, immaterial and impertinent." Indeed, in the court's resolution only
Exhibits J, K, K-5 and X-6 were admitted without objection; the admission of
the others, including the disputed ones, carried no such explanation.
On the second point, although Detective Capacillo did take the witness stand,
he was not examined and he did not testify as to the facts mentioned in his
alleged report (signed by Detective Zapanta). All he said was that he was one
of those who investigated "the location of the fire and, if possible, gather
witnesses as to the occurrence, and that he brought the report with him.
There was nothing, therefore, on which he need be cross-examined; and the
contents of the report, as to which he did not testify, did not thereby become

competent evidence. And even if he had testified, his testimony would still
have been objectionable as far as information gathered by him from third
persons was concerned.
Petitioners maintain, however, that the reports in themselves, that is, without
further testimonial evidence on their contents, fall within the scope of section
35, Rule 123, which provides that "entries in official records made in the
performance of his duty by a public officer of the Philippines, or by a person
in the performance of a duty specially enjoined by law, are prima
facie evidence of the facts therein stated."
There are three requisites for admissibility under the rule just mentioned: (a)
that the entry was made by a public officer, or by another person specially
enjoined by law to do so; (b) that it was made by the public officer in the
performance of his duties, or by such other person in the performance of a
duty specially enjoined by law; and (c) that the public officer or other person
had sufficient knowledge of the facts by him stated, which must have been
acquired by him personally or through official information (Moran, Comments
on the Rules of Court, Vol. 3 [1957] p. 398).
Of the three requisites just stated, only the last need be considered here.
Obviously the material facts recited in the reports as to the cause and
circumstances of the fire were not within the personal knowledge of the
officers who conducted the investigation. Was knowledge of such facts,
however, acquired by them through official information? As to some facts the
sources thereof are not even identified. Others are attributed to Leopoldo
Medina, referred to as an employee at the gas station were the fire occurred;
to Leandro Flores, driver of the tank truck from which gasoline was being
transferred at the time to the underground tank of the station; and to
respondent Mateo Boquiren, who could not, according to Exhibit V-Africa, give
any reason as to the origin of the fire. To qualify their statements as "official
information" acquired by the officers who prepared the reports, the persons
who made the statements not only must have personal knowledge of the
facts stated but must have the duty to give such statements for record.1
The reports in question do not constitute an exception to the hearsay rule;
the facts stated therein were not acquired by the reporting officers through
official information, not having been given by the informants pursuant to any
duty to do so.
The next question is whether or not, without proof as to the cause and origin
of the fire, the doctrine of res ipsa loquitur should apply so as to presume
negligence on the part of appellees. Both the trial court and the appellate
court refused to apply the doctrine in the instant case on the grounds that
"as to (its) applicability ... in the Philippines, there seems to he nothing
definite," and that while the rules do not prohibit its adoption in appropriate
cases, "in the case at bar, however, we find no practical use for such
doctrine." The question deserves more than such summary dismissal. The
doctrine has actually been applied in this jurisdiction, in the case of Espiritu
vs. Philippine Power and Development Co. (CA-G.R. No. 3240-R, September
20, 1949), wherein the decision of the Court of Appeals was penned by Mr.
Justice J.B.L. Reyes now a member of the Supreme Court.
The facts of that case are stated in the decision as follows:
In the afternoon of May 5, 1946, while the plaintiff-appellee and other
companions were loading grass between the municipalities of Bay

and Calauan, in the province of Laguna, with clear weather and

without any wind blowing, an electric transmission wire, installed and
maintained by the defendant Philippine Power and Development Co.,
Inc. alongside the road, suddenly parted, and one of the broken ends
hit the head of the plaintiff as he was about to board the truck. As a
result, plaintiff received the full shock of 4,400 volts carried by the
wire and was knocked unconscious to the ground. The electric charge
coursed through his body and caused extensive and serious multiple
burns from skull to legs, leaving the bone exposed in some parts and
causing intense pain and wounds that were not completely healed
when the case was tried on June 18, 1947, over one year after the
mishap.
The defendant therein disclaimed liability on the ground that the plaintiff had
failed to show any specific act of negligence, but the appellate court
overruled the defense under the doctrine of res ipsa loquitur. The court said:
The first point is directed against the sufficiency of plaintiff's evidence
to place appellant on its defense. While it is the rule, as contended by
the appellant, that in case of noncontractual negligence, or culpa
aquiliana, the burden of proof is on the plaintiff to establish that the
proximate cause of his injury was the negligence of the defendant, it
is also a recognized principal that "where the thing which caused
injury, without fault of the injured person, is under the exclusive
control of the defendant and the injury is such as in the ordinary
course of things does not occur if he having such control use proper
care, it affords reasonable evidence, in the absence of the
explanation, that the injury arose from defendant's want of care."
And the burden of evidence is shifted to him to establish that he has
observed due care and diligence. (San Juan Light & Transit Co. v.
Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is known by the name
of res ipsa loquitur (the transaction speaks for itself), and is peculiarly
applicable to the case at bar, where it is unquestioned that the
plaintiff had every right to be on the highway, and the electric wire
was under the sole control of defendant company. In the ordinary
course of events, electric wires do not part suddenly in fair weather
and injure people, unless they are subjected to unusual strain and
stress or there are defects in their installation, maintenance and
supervision; just as barrels do not ordinarily roll out of the warehouse
windows to injure passersby, unless some one was negligent. (Byrne
v. Boadle, 2 H & Co. 722; 159 Eng. Reprint 299, the leading case that
established that rule). Consequently, in the absence of contributory
negligence (which is admittedly not present), the fact that the wire
snapped suffices to raise a reasonable presumption of negligence in
its installation, care and maintenance. Thereafter, as observed by
Chief Baron Pollock, "if there are any facts inconsistent with
negligence, it is for the defendant to prove."
It is true of course that decisions of the Court of Appeals do not lay down
doctrines binding on the Supreme Court, but we do not consider this a reason
for not applying the particular doctrine of res ipsa loquitur in the case at bar.
Gasoline is a highly combustible material, in the storage and sale of which
extreme care must be taken. On the other hand, fire is not considered a
fortuitous event, as it arises almost invariably from some act of man. A case
strikingly similar to the one before Us is Jones vs. Shell Petroleum

Corporation, et al., 171 So. 447:

Arthur O. Jones is the owner of a building in the city of Hammon which
in the year 1934 was leased to the Shell Petroleum Corporation for a
gasoline filling station. On October 8, 1934, during the term of the
lease, while gasoline was being transferred from the tank wagon, also
operated by the Shell Petroleum Corporation, to the underground
tank of the station, a fire started with resulting damages to the
building owned by Jones. Alleging that the damages to his building
amounted to $516.95, Jones sued the Shell Petroleum Corporation for
the recovery of that amount. The judge of the district court, after
hearing the testimony, concluded that plaintiff was entitled to a
recovery and rendered judgment in his favor for $427.82. The Court
of Appeals for the First Circuit reversed this judgment, on the ground
the testimony failed to show with reasonable certainty any
negligence on the part of the Shell Petroleum Corporation or any of
its agents or employees. Plaintiff applied to this Court for a Writ of
Review which was granted, and the case is now before us for
decision.1wph1.t
In resolving the issue of negligence, the Supreme Court of Louisiana held:

following, viz.: Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977;

Hebert v. Lake Charles Ice, etc., Co., 111 La. 522, 35 So. 731, 64
L.R.A. 101, 100 Am. St. Rep. 505; Willis v. Vicksburg, etc., R. Co., 115
La. 63, 38 So. 892; Bents v. Page, 115 La. 560, 39 So. 599.
The principle enunciated in the aforequoted case applies with equal force
here. The gasoline station, with all its appliances, equipment and employees,
was under the control of appellees. A fire occurred therein and spread to and
burned the neighboring houses. The persons who knew or could have known
how the fire started were appellees and their employees, but they gave no
explanation thereof whatsoever. It is a fair and reasonable inference that the
incident happened because of want of care.
In the report submitted by Captain Leoncio Mariano of the Manila Police
Department (Exh. X-1 Africa) the following appears:
Investigation of the basic complaint disclosed that the Caltex
Gasoline Station complained of occupies a lot approximately 10 m x
10 m at the southwest corner of Rizal Avenue and Antipolo. The
location is within a very busy business district near the Obrero
Market, a railroad crossing and very thickly populated neighborhood
where a great number of people mill around t

Plaintiff's petition contains two distinct charges of negligence one

relating to the cause of the fire and the other relating to the
spreading of the gasoline about the filling station.

until

Other than an expert to assess the damages caused plaintiff's

building by the fire, no witnesses were placed on the stand by the
defendant.

tever be theWactjvities of these peopleor lighting a cigarette cannot

be excluded and this constitute a secondary hazard to its operation
which in turn endangers the entire neighborhood to conflagration.

Taking up plaintiff's charge of negligence relating to the cause of the

fire, we find it established by the record that the filling station and the
tank truck were under the control of the defendant and operated by
its agents or employees. We further find from the uncontradicted
testimony of plaintiff's witnesses that fire started in the underground
tank attached to the filling station while it was being filled from the
tank truck and while both the tank and the truck were in charge of
and being operated by the agents or employees of the defendant,
extended to the hose and tank truck, and was communicated from
the burning hose, tank truck, and escaping gasoline to the building
owned by the plaintiff.

Furthermore, aside from precautions already taken by its operator the

concrete walls south and west adjoining the neighborhood are only 21/2 meters high at most and cannot avoid the flames from leaping
over it in case of fire.

Predicated on these circumstances and the further circumstance of

defendant's failure to explain the cause of the fire or to show its lack
of knowledge of the cause, plaintiff has evoked the doctrine of res
ipsa loquitur. There are many cases in which the doctrine may be
successfully invoked and this, we think, is one of them.
Where the thing which caused the injury complained of is shown to
be under the management of defendant or his servants and the
accident is such as in the ordinary course of things does not happen if
those who have its management or control use proper care, it affords
reasonable evidence, in absence of explanation by defendant, that
the accident arose from want of care. (45 C.J. #768, p. 1193).
This statement of the rule of res ipsa loquitur has been widely
approved and adopted by the courts of last resort. Some of the cases
in this jurisdiction in which the doctrine has been applied are the

gasoline

Records show that there have been two cases of fire which caused
not only material damages but desperation and also panic in the
neighborhood.
Although the soft drinks stand had been eliminated, this gasoline
service station is also used by its operator as a garage and repair
shop for his fleet of taxicabs numbering ten or more, adding another
risk to the possible outbreak of fire at this already small but crowded
gasoline station.
The foregoing report, having been submitted by a police officer in the
performance of his duties on the basis of his own personal observation of the
facts reported, may properly be considered as an exception to the hearsay
rule. These facts, descriptive of the location and objective circumstances
surrounding the operation of the gasoline station in question, strengthen the
presumption of negligence under the doctrine of res ipsa loquitur, since on
their face they called for more stringent measures of caution than those
which would satisfy the standard of due diligence under ordinary
circumstances. There is no more eloquent demonstration of this than the
statement of Leandro Flores before the police investigator. Flores was the
driver of the gasoline tank wagon who, alone and without assistance, was
transferring the contents thereof into the underground storage when the fire
broke out. He said: "Before loading the underground tank there were no

people, but while the loading was going on, there were people who went to
drink coca-cola (at the coca-cola stand) which is about a meter from the hole
leading to the underground tank." He added that when the tank was almost
filled he went to the tank truck to close the valve, and while he had his back
turned to the "manhole" he, heard someone shout "fire."
Even then the fire possibly would not have spread to the neighboring houses
were it not for another negligent omission on the part of defendants, namely,
their failure to provide a concrete wall high enough to prevent the flames
from leaping over it. As it was the concrete wall was only 2-1/2 meters high,
and beyond that height it consisted merely of galvanized iron sheets, which
would predictably crumple and melt when subjected to intense heat.
Defendants' negligence, therefore, was not only with respect to the cause of
the fire but also with respect to the spread thereof to the neighboring houses.
There is an admission on the part of Boquiren in his amended answer to the
second amended complaint that "the fire was caused through the acts of a
stranger who, without authority, or permission of answering defendant,
passed through the gasoline station and negligently threw a lighted match in
the premises." No evidence on this point was adduced, but assuming the
allegation to be true certainly any unfavorable inference from the
admission may be taken against Boquiren it does not extenuate his
negligence. A decision of the Supreme Court of Texas, upon facts analogous
to those of the present case, states the rule which we find acceptable here.
"It is the rule that those who distribute a dangerous article or agent, owe a
degree of protection to the public proportionate to and commensurate with a
danger involved ... we think it is the generally accepted rule as applied to
torts that 'if the effects of the actor's negligent conduct actively and
continuously operate to bring about harm to another, the fact that the active
and substantially simultaneous operation of the effects of a third person's
innocent, tortious or criminal act is also a substantial factor in bringing about
the harm, does not protect the actor from liability.' (Restatement of the Law
of Torts, vol. 2, p. 1184, #439). Stated in another way, "The intention of an
unforeseen and unexpected cause, is not sufficient to relieve a wrongdoer
from consequences of negligence, if such negligence directly and proximately
cooperates with the independent cause in the resulting injury." (MacAfee, et
al. vs. Traver's Gas Corporation, 153 S.W. 2nd 442.)
The next issue is whether Caltex should be held liable for the damages
caused to appellants. This issue depends on whether Boquiren was an
independent contractor, as held by the Court of Appeals, or an agent of
Caltex. This question, in the light of the facts not controverted, is one of law
and hence may be passed upon by this Court. These facts are: (1) Boquiren
made an admission that he was an agent of Caltex; (2) at the time of the fire
Caltex owned the gasoline station and all the equipment therein; (3) Caltex
exercised control over Boquiren in the management of the state; (4) the
delivery truck used in delivering gasoline to the station had the name of
CALTEX painted on it; and (5) the license to store gasoline at the station was
in the name of Caltex, which paid the license fees. (Exhibit T-Africa; Exhibit UAfrica; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit Y-Africa).
In Boquiren's amended answer to the second amended complaint, he denied
that he directed one of his drivers to remove gasoline from the truck into the
tank and alleged that the "alleged driver, if one there was, was not in his
employ, the driver being an employee of the Caltex (Phil.) Inc. and/or the
owners of the gasoline station." It is true that Boquiren later on amended his

answer, and that among the changes was one to the effect that he was not
acting as agent of Caltex. But then again, in his motion to dismiss appellants'
second amended complaint the ground alleged was that it stated no cause of
action since under the allegations thereof he was merely acting as agent of
Caltex, such that he could not have incurred personal liability. A motion to
dismiss on this ground is deemed to be an admission of the facts alleged in
the complaint.
Caltex admits that it owned the gasoline station as well as the equipment
therein, but claims that the business conducted at the service station in
question was owned and operated by Boquiren. But Caltex did not present
any contract with Boquiren that would reveal the nature of their relationship
at the time of the fire. There must have been one in existence at that time.
Instead, what was presented was a license agreement manifestly tailored for
purposes of this case, since it was entered into shortly before the expiration
of the one-year period it was intended to operate. This so-called license
agreement (Exhibit 5-Caltex) was executed on November 29, 1948, but made
effective as of January 1, 1948 so as to cover the date of the fire, namely,
March 18, 1948. This retroactivity provision is quite significant, and gives rise
to the conclusion that it was designed precisely to free Caltex from any
responsibility with respect to the fire, as shown by the clause that Caltex
"shall not be liable for any injury to person or property while in the property
herein licensed, it being understood and agreed that LICENSEE (Boquiren) is
not an employee, representative or agent of LICENSOR (Caltex)."
But even if the license agreement were to govern, Boquiren can hardly be
considered an independent contractor. Under that agreement Boquiren would
pay Caltex the purely nominal sum of P1.00 for the use of the premises and
all the equipment therein. He could sell only Caltex Products. Maintenance of
the station and its equipment was subject to the approval, in other words
control, of Caltex. Boquiren could not assign or transfer his rights as licensee
without the consent of Caltex. The license agreement was supposed to be
from January 1, 1948 to December 31, 1948, and thereafter until terminated
by Caltex upon two days prior written notice. Caltex could at any time cancel
and terminate the agreement in case Boquiren ceased to sell Caltex products,
or did not conduct the business with due diligence, in the judgment of Caltex.
Termination of the contract was therefore a right granted only to Caltex but
not to Boquiren. These provisions of the contract show the extent of the
control of Caltex over Boquiren. The control was such that the latter was
virtually an employee of the former.
Taking into consideration the fact that the operator owed his position
to the company and the latter could remove him or terminate his
services at will; that the service station belonged to the company and
bore its tradename and the operator sold only the products of the
company; that the equipment used by the operator belonged to the
company and were just loaned to the operator and the company took
charge of their repair and maintenance; that an employee of the
company supervised the operator and conducted periodic inspection
of the company's gasoline and service station; that the price of the
products sold by the operator was fixed by the company and not by
the operator; and that the receipts signed by the operator indicated
that he was a mere agent, the finding of the Court of Appeals that the
operator was an agent of the company and not an independent
contractor should not be disturbed.

To determine the nature of a contract courts do not have or are not

bound to rely upon the name or title given it by the contracting
parties, should thereby a controversy as to what they really had
intended to enter into, but the way the contracting parties do or
perform their respective obligations stipulated or agreed upon may
be shown and inquired into, and should such performance conflict
with the name or title given the contract by the parties, the former
must prevail over the latter. (Shell Company of the Philippines, Ltd.
vs. Firemens' Insurance Company of Newark, New Jersey, 100 Phil.
757).
The written contract was apparently drawn for the purpose of
creating the apparent relationship of employer and independent
contractor, and of avoiding liability for the negligence of the
employees about the station; but the company was not satisfied to
allow such relationship to exist. The evidence shows that it
immediately assumed control, and proceeded to direct the method by
which the work contracted for should be performed. By reserving the
right to terminate the contract at will, it retained the means of
compelling submission to its orders. Having elected to assume control
and to direct the means and methods by which the work has to be
performed, it must be held liable for the negligence of those
performing service under its direction. We think the evidence was
sufficient to sustain the verdict of the jury. (Gulf Refining Company v.
Rogers, 57 S.W. 2d, 183).
Caltex further argues that the gasoline stored in the station belonged to
Boquiren. But no cash invoices were presented to show that Boquiren had
bought said gasoline from Caltex. Neither was there a sales contract to prove
the same.
As found by the trial court the Africas sustained a loss of P9,005.80, after
deducting the amount of P2,000.00 collected by them on the insurance of the
house. The deduction is now challenged as erroneous on the ground that
Article 2207 of the New Civil Code, which provides for the subrogation of the
insurer to the rights of the insured, was not yet in effect when the loss took
place. However, regardless of the silence of the law on this point at that time,
the amount that should be recovered be measured by the damages actually
suffered, otherwise the principle prohibiting unjust enrichment would be
violated. With respect to the claim of the heirs of Ong P7,500.00 was
adjudged by the lower court on the basis of the assessed value of the
property destroyed, namely, P1,500.00, disregarding the testimony of one of
the Ong children that said property was worth P4,000.00. We agree that the
court erred, since it is of common knowledge that the assessment for
taxation purposes is not an accurate gauge of fair market value, and in this
case should not prevail over positive evidence of such value. The heirs of Ong
are therefore entitled to P10,000.00.
Wherefore, the decision appealed from is reversed and respondentsappellees are held liable solidarily to appellants, and ordered to pay them the
aforesaid sum of P9,005.80 and P10,000.00, respectively, with interest from
the filing of the complaint, and costs.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RICARDO SAN GABRIEL y

ORTIZ, defendant-appellant.
DECISION
BELLOSILLO, J.:
RICARDO O. SAN GABRIEL was charged with murder in an Information
alleging that on 26 November 1989, armed with a bladed weapon, in
conspiracy with Ramon Doe, with treachery, evident premeditation and intent
to kill, he assaulted and stabbed to death Jaime A. Tonog.[1]
The trial court convicted the accused as charged and sentenced him to
life imprisonment and to pay the heirs of Jaime Tonog the sum of P30,000,
plus costs.[2]
The accused is now before us on appeal.
The evidence shows that at around seven oclock in the evening of 26
November 1989, within the vicinity of Pier 14 at North Harbor along Marcos
Road, Manila, a fistfight ensued between Jaime Tonog on one hand and the
accused Ricardo San Gabriel together with Ramon Doe on the other. The fight
was eventually broken up when onlookers pacified the protagonists. Ricardo
and Ramon then hastened towards Marcos Road but in no time were back
with bladed weapons. They approached Tonog surreptitiously, surrounded
him and simultaneously stabbed him in the stomach and at the back, after
which the assailants ran towards the highway leaving Tonog behind on the
ground. He was then brought to Mary JohnstonHospital where he was
pronounced dead on arrival.
Dr. Marcial G. Cenido, Medico-Legal Officer of the Western Police District,
autopsied the cadaver of the victim and reported that it sustained two (2)
penetrating stab wounds each caused by a single-bladed instrument. He
opined that both wounds were fatal.[3]
The accused has a different version. He testified that he saw Tonog
drunk; Tonog even attempted to box him but he parried his blow; Tonog
continued walking but when he chanced upon Ramon he suddenly and
without provocation boxed and kicked Ramon; Ramon fought back but was
subdued by his bigger assailant so the former ran towards the highway; when
Tonog met a certain Mando he boxed the latter who however fought back
despite his (accused) warning not to; at this moment he saw Ramon return
with a bolo on hand; he warned Ramon not to fight but his advice went
unheeded; instead, with bolo on hand Ramon struck Tonog on the belly; when
Mando saw what happened he (Mando) pulled out his knife and also stabbed
Tonog at the back; Ramon and Mando then fled towards the highway.
The accused further claimed that he even stayed with the victim and
called out the latters companions to bring him to the hospital; that
prosecution witness Brenda Gonzales only arrived at the crime scene after

Tonog was already taken to the hospital; that Brenda even inquired from him
what happened and then prodded him to testify; that his refusal coupled with
the fact that he owed Gonzales some money earned him the ire of the latter
and that was why he was charged for the death of Tonog.
Accused-appellant claims in this appeal that the trial court erred: (a) in
giving credence to the testimonies of prosecution witnesses Brenda Gonzales
and Pio Ochobillo, and for discrediting his; (b) in finding that the killing was
attended with evident premeditation; (c) in ruling that he committed
treachery and, (d) in convicting him of murder.[4]
We sustain the conviction of the accused for murder. It is settled that
findings of fact of the trial court are accorded greatest respect by the
appellate court absent any abuse of discretion,[5] and none is perceivable in
the case at bench; hence we affirm the factual findings of the trial court.
The accused contends that the testimonies of the prosecution witnesses
are incredible and conflicting. We however find otherwise. Gonzales and
Ochobillo, as observed by the trial court, testified in a direct and candid
manner. No evil motive is attributed to them as to testify falsely against the
accused. That Gonzales harbored a grudge against the accused because he
owed her some money, and even enticed her customers into patronizing
another carinderia, can hardly be believed. We are not convinced that Brenda
Gonzales would testify against accused-appellant for a crime so grave simply
because he owed her a measly sum of P300.00. That he enticed the
customers of Gonzales into patronizing another carinderia is belied by the
fact that on the night of the incident he was, as he claimed, eating at
the carinderia of Gonzales. If there be any testimony that should be
considered incredible and illogical it must be that of the accused. His
assertion that Mando stabbed the victim should not receive any evidentiary
value when weighed against the positive assertion of the prosecution
witnesses that the accused was the assailant of Jaime Tonog.
Quite interestingly, the accused did not offer any information regarding
the person and circumstances of Mando. Up to this date Mando remains a
myth. Not a single witness was presented by the defense to prove who
Mando was, nor even a hint of his personal circumstances. During the entire
proceedings in the court below Mando was never mentioned by the
prosecution witnesses. Nobody ever implicated him except the accused. In
fact, there should have been no difficulty procuring witnesses to testify on
the part of the accused as the incident was viewed openly by a multitude of
bystanders. His failure to present any witness pointing to Mando as the
perpetrator of the crime convinces us that Mando in fact existed only as a
figment of the mind.
The accused also asserts that Gonzales arrived at the crime scene only
after the victim was brought to the hospital and that she even inquired from
him about what happened.
Again we are not persuaded. The statement contradicts the earlier
version of the accused that Gonzales was prejudiced against him as he owed
her some money. For, granting that Gonzales had a grudge against him it was

not likely that she would inquire from him about the incident as there were
other persons then present who could shed light on the startling occurrence.
Equally dubious is the avowal of the accused that Gonzales arrived at
the crime scene only after the victim was rushed to the hospital considering
that the incident took place just in front of her store. Besides, this claim was
easily demolished by Gonzales detailed account of the fight.
The fact that the witnesses did not immediately report the incident to
the police does not necessarily discredit them. After all, reports were made
albeit by different persons. The accused banks on the apparent inconsistency
as to why Gonzales failed to give immediately her account of the killing to the
authorities. But the discrepancy is so minor that it cannot undermine her
credibility nor detract from the truth that she personally witnessed the
incident and positively identified the accused.
The
accused
leans
heavily
on
the Advance
Information
Sheet[6] prepared by Pat. Steve Casimiro which did not mention him at all
and named only Ramon Doe as the principal suspect.Unfortunately this
cannot defeat the positive and candid testimonies of the prosecution
witnesses. Entries in official records, as in the case of a police blotter, are
only prima facie evidence of the facts therein stated. They are not
conclusive. The entry in the police blotter is not necessarily entitled to full
credit for it could be incomplete and inaccurate, sometimes from either
partial suggestions or for want of suggestions or inquiries, without the aid of
which the witness may be unable to recall the connected collateral
circumstances necessary for the correction of the first suggestion of his
memory and for his accurate recollection of all that pertain to the subject. It
is understandable that the testimony during the trial would be more lengthy
and detailed than the matters stated in the police blotter.[7] Significantly,
the Advance Information Sheet was never formally offered by the defense
during the proceedings in the court below.Hence any reliance by the accused
on the document must fail since the court cannot consider any evidence
which has not been formally offered.[8]
Parenthetically, the Advance Information Sheet was prepared by the
police officer only after interviewing Camba, an alleged eyewitness. The
accused then could have compelled the attendance of Camba as a
witness. The failure to exert the slightest effort to present Camba on the part
of the accused should militate against his cause.
Entries in official records made in the performance of his duty by a
public officer or by a person in the performance of a duty specially enjoined
by law are prima facie evidence of the facts therein stated.[9] But to be
admissible in evidence three (3) requisites must concur: (a) The entry was
made by a police officer or by another person specially enjoined by law to do
so; (b) It was made by the public officer in the performance of his duties or by
such other person in the performance of a duty specially enjoined by law;
and, (c) The public officer or other person had sufficient knowledge of the
facts by him stated, which must have been acquired by him personally or
through official information.[10]

The Advance Information Sheet does not constitute an exception to the

hearsay rule, hence, inadmissible. The public officer who prepared the
document had no sufficient and personal knowledge of the stabbing
incident. Any information possessed by him was acquired from Camba which
therefore could not be categorized as official information because in order to
be classified as such the persons who made the statements not only must
have personal knowledge of the facts stated but must have the duty to give
such statements for the record.[11] In the case of Camba, he was not legally
so obliged to give such statements.
The accused enumerates discrepancies in the testimonies of the
prosecution witnesses. Thus, according to him, it was testified that the victim
was stabbed by the accused at the back but failed to point out its precise
location. The stabbing admittedly occurred at around seven oclock in the
evening but the Advance Information Sheet reported 6:30 p.m. One witness
testified that the fistfight was only between the victim and Ramon Doe, while
another reported that it involved the victim, Ramon Doe and the
accused. Further, it was not accurately determined whether Ramon and the
accused returned to the scene of the crime within five (5) minutes or after
the lapse thereof.
As previously stated, the discrepancies do not militate against the fact
firmly established by the prosecution that Tonog was stabbed at the back by
the accused and by Ramon Doe in the abdomen. Any discordance noted is so
minor and insignificant that no further consideration is essential. The most
honest witnesses make mistakes sometimes, but such innocent lapses do not
necessarily impair their credibility. The testimony of a witness must be
considered and calibrated in its entirety and not by truncated portions
thereof or isolated passages therein.[12]

totally unprepared for the unexpected attack from behind and had no weapon
to resist it, the stabbing could not but be considered as treacherous. The
evidence proved that the victim was caught unaware by the sudden
assault. No weapon was found, nor even intimated to be, in his possession.
Conversely the court a quo should have disregarded evident
premeditation. Evident premeditation requires a showing that the execution
of the criminal act was preceded by cool thought and reflection upon the
resolution to carry out the criminal intent during a space of time sufficient to
arrive at a calm judgment.[16] Evidence for the prosecution showed that
after the fight was broken up the accused and Ramon Doe proceeded towards
the highway. They returned only after a lapse of approximately
five (5) minutes. From the foregoing we cannot conclude that the accused
had sufficient time within which to meditate on the consequences of his acts.
Meditation necessitates that it be evident and proven. Be that as it may,
treachery as a qualifying circumstance having attended the killing, the
conviction of the accused for murder still holds.
WHEREFORE,. the decision of the court a quo in Crim. Case No. 9081744 dated 25 July 1991 convicting accused-appellant RICARDO SAN
GABRIEL Y ORTIZ of murder is AFFIRMED. The penalty of life imprisonment
however is MODIFIED to reclusion perpetua,[17] while the award of
P30,000.00 as indemnity is INCREASED to P50,000.00 conformably with
existing jurisprudence. Costs against accused-appellant.
SO ORDERED.

The presence of the accused in the vicinity even after the commission of
the crime does not in any way extricate him from his dilemma. Certainly, it is
no proof of his innocence.
The court a quo properly considered the aggravating circumstance of
treachery in convicting the accused of murder. Treachery is present when the
offender commits any of the crimes against person, employing means,
methods or forms in the execution thereof which tend directly and specially
to insure its execution, without risk to himself arising from the defense which
the offended party might make.[13] Alevosia or treachery presumes an
attack that is deliberate and unexpected. There is no treachery when the
victim is placed on guard, as when a heated argument preceded the attack,
especially when the victim was standing face to face with his assailants, and
the initial assault could not have been unforeseen.[14]

BARCELON,
ROXAS
SECURITIES, INC. (now known
as UBP Securities, Inc.)
Petitioner,

It is true that in the case at bench the attack was preceded by a fistfight.
It was however established that they were already pacified by onlookers
when the accused and Ramon returned. Lulled into complacency the victim
simply stayed where he was before the fistfight when after a brief moment
the accused together with Ramon returned with bladed weapons.Both
approached the victim and circled him surreptitiously. The attack was sudden
and simultaneous that the victim was never given a chance to defend
himself. As we have held in People v. Balisteros,[15] where a victim was

COMMISSIONER OF INTERNAL
Promulgated:
REVENUE,
Respondent.
August 7, 2006
x--------------------------------------------------x

- versus -

DECISION

G. R. No. 157064
Pre s e n t :
PA N G A N I B A N , C . J . ,
C h a i rm a n ,
Y N A R E S - S A N T I AG O
A U S T R I A- M A RTI N E Z ,
C A L L E J O , S R. , a n d
C H I C O - NA Z A R I O , J J .

CHICO-NAZARIO, J.:

Warrant of Distraint and/or Levy, requesting for its cancellation. On 3 July

This is a Petition for Review on Certiorari, under Rule 45 of the Rules of Court,

1998, petitioner received a letter dated 30 April 1998 from the respondent

seeking to set aside the Decision of the Court of Appeals in CA-G.R. SP No.

denying the protest with finality.[4]

60209 dated 11 July 2002,[1] ordering the petitioner to pay the Government
the amount of P826,698.31 as deficiency income tax for the year 1987 plus
25% surcharge and 20% interest per annum. The Court of Appeals, in its
assailed Decision, reversed the Decision of the Court of Tax Appeals (CTA)
dated 17 May 2000[2] in C.T.A. Case No. 5662.

Petitioner Barcelon, Roxas Securities Inc. (now known as UBP Securities, Inc.)

On 31 July 1998, petitioner filed a petition for review with the

CTA. After due notice and hearing, the CTA rendered a decision in favor of
petitioner on 17 May 2000. The CTA ruled on the primary issue of prescription
and found it unnecessary to decide the issues on the validity and propriety of
the assessment. It maintained that while a mailed letter is deemed received
by the addressee in the course of mail, this is merely a disputable
presumption. It reasoned that the direct denial of the petitioner shifts the
burden of proof to the respondent that the mailed letter was actually
received by the petitioner. The CTA found the BIR records submitted by the
respondent immaterial, self-serving, and therefore insufficient to prove that
the assessment notice was mailed and duly received by the petitioner.[5] The
dispositive portion of this decision reads:

is a corporation engaged in the trading of securities. On 14 April 1988,

WHEREFORE,
in
view
of
the
foregoing,
the 1988 deficiency tax assessment against petitioner is
hereby CANCELLED. Respondent is hereby ORDERED TO
DESIST
from
collecting
said
deficiency
tax. No
pronouncement as to costs.[6]

petitioner filed its Annual Income Tax Return for taxable year 1987. After an
audit investigation conducted by the Bureau of Internal Revenue (BIR),
respondent Commissioner of Internal Revenue (CIR) issued an assessment for
deficiency income tax in the amount of P826,698.31 arising from the
disallowance of the item on salaries, bonuses and allowances in the amount
ofP1,219,093,93 as part of the deductible business expense since petitioner

On 6 June 2000, respondent moved for reconsideration of the

aforesaid decision but was denied by the CTA in a Resolution dated 25 July
2000. Thereafter, respondent appealed to the Court of Appeals on 31 August
2001. In reversing the CTA decision, the Court of Appeals found the evidence
presented by the respondent to be sufficient proof that the tax assessment
notice was mailed to the petitioner, therefore the legal presumption that it
was received should apply.[7] Thus, the Court of Appeals ruled that:

failed to subject the salaries, bonuses and allowances to withholding

WHEREFORE,
the
petition
is
hereby
GRANTED. The decision dated May 17, 2000 as well
as the Resolution dated July 25, 2000 are hereby
REVERSED and SET ASIDE, and a new on entered
ordering the respondent to pay the amount
of P826,698.31 as deficiency income tax for the year
1987 plus 25% surcharge and 20% interest per
annum from February 6, 1991 until fully paid
pursuant to Sections 248 and 249 of the Tax Code.[8]

taxes. This assessment was covered by Formal Assessment Notice No. FAN-187-91-000649 dated 1 February 1991, which, respondent alleges, was sent to
petitioner through registered mail on 6 February 1991.However, petitioner
denies receiving the formal assessment notice.[3]

On 17 March 1992, petitioner was served with a Warrant of Distraint and/or

Levy to enforce collection of the deficiency income tax for the year

Petitioner moved for reconsideration of the said decision but the

same was denied by the Court of Appeals in its assailed Resolution dated 30
January 2003.[9]

1987. Petitioner filed a formal protest, dated 25 March 1992, against the

Hence, this Petition for Review on Certiorari raising the following

issues:

I
W H E T H E R O R N O T L E G A L B A SE S E X I S T F O R TH E
C O U RT O F A P P E A L S F I N D I N G T H AT T H E C O U RT O F
TA X A P P E A L S C O M M I TT E D G R O S S E R R O R I N TH E
A P P R E C I AT I O N O F FAC T S .
II
WHETHER OR NOT THE COURT OF APPEALS WAS CORRECT IN
REVERSING THE SUBJECT DECISION OF THE COURT OF TAX
APPEALS.
III
WHETHER OR NOT THE RIGHT OF THE BUREAU OF INTERNAL
REVENUE TO ASSESS PETITIONER FOR ALLEGED DEFICIENCY
INCOME TAX FOR 1987 HAS PRESCRIBED.
IV
WHETHER OR NOT THE RIGHT OF THE BUREAU OF INTERNAL
REVENUE TO COLLECT THE SUBJECT ALLEGED DEFICIENCY
INCOME TAX FOR 1987 HAS PRESCRIBED.
V
WHETHER OR NOT PETITIONER IS LIABLE FOR THE ALLEGED
DEFICIENCY INCOME TAX ASSESSMENT FOR 1987.
VI
WHETHER OR NOT THE SUBJECT ASSESSMENT IS VIOLATIVE
OF THE RIGHT OF PETITIONER TO DUE PROCESS.[10]

This Court finds the instant Petition meritorious.

The core issue in this case is whether or not respondents right to
assess petitioners alleged deficiency income tax is barred by prescription, the
resolution of which depends on reviewing the findings of fact of the Court of
Appeals and the CTA.

While the general rule is that factual findings of the Court of Appeals are
binding on this Court, there are, however, recognized exceptions[11] thereto,
such as when the findings are contrary to those of the trial court or, in this
case, the CTA.[12]

In its Decision, the CTA resolved the issues raised by the parties thus:
Jurisprudence is replete with cases holding that if the
taxpayer denies ever having received an assessment from
the BIR, it is incumbent upon the latter to prove by
competent evidence that such notice was indeed received by
the addressee. The onus probandi was shifted to respondent
to prove by contrary evidence that the Petitioner received the
assessment in the due course of mail. The Supreme Court has
consistently held that while a mailed letter is deemed
received by the addressee in the course of mail, this is
merely a disputable presumption subject tocontroversion and
a direct denial thereof shifts the burden to the party favored
by the presumption to prove that the mailed letter was
indeed received by the addressee (Republic vs. Court of
Appeals, 149 SCRA 351). Thus as held by the Supreme Court
in Gonzalo P. Nava vs. Commissioner of Internal Revenue, 13
SCRA 104, January 30, 1965:
The facts to be proved to raise this
presumption are (a) that the letter was
properly addressed with postage prepaid, and
(b) that it was mailed. Once these facts are
proved, the presumption is that the letter was
received by the addressee as soon as it could
have been transmitted to him in the ordinary
course of the mail. But if one of the said facts
fails to appear, the presumption does not
lie. (VI, Moran, Comments on the Rules of
Court, 1963 ed, 56-57 citing Enriquez
vs. Sunlife Assurance of Canada, 41 Phil 269).
In the instant case, Respondent utterly failed to discharge
this duty. No substantial evidence was ever presented to
prove that the assessment notice No. FAN-1-87-91-000649 or
other supposed notices subsequent thereto were in fact
issued or sent to the taxpayer. As a matter of fact, it only
submitted the BIR record book which allegedly contains the
list of taxpayers names, the reference number, the year, the
nature of tax, the city/municipality and the amount (see Exh.
5-a for the Respondent). Purportedly, Respondent intended to
show to this Court that all assessments made are entered
into a record book in chronological order outlining the details
of the assessment and the taxpayer liable thereon. However,
as can be gleaned from the face of the exhibit, all entries
thereon appears to be immaterial and impertinent in proving
that the assessment notice was mailed and duly received by
Petitioner. Nothing indicates therein all essential facts that
could sustain the burden of proof being shifted to the
Respondent. What is essential to prove the fact of mailing is

the registry receipt issued by the Bureau of Posts or the

Registry return card which would have been signed by the
Petitioner or its authorized representative. And if said
documents cannot be located, Respondent at the very least,
should have submitted to the Court a certification issued by
the Bureau of Posts and any other pertinent document which
is executed with the intervention of the Bureau of Posts. This
Court does not put much credence to the self serving
documentations made by the BIR personnel especially if they
are unsupported by substantial evidence establishing the fact
of mailing. Thus:
While we have held that an assessment is
made when sent within the prescribed period,
even if received by the taxpayer after its
expiration (Coll. of Int. Rev. vs. Bautista, L12250 and L-12259, May 27, 1959), this
ruling makes it the more imperative that the
release, mailing or sending of the notice be
clearly
and
satisfactorily
proved. Mere
notations made without the taxpayers
intervention, notice or control, without
adequate supporting evidence cannot suffice;
otherwise, the taxpayer would be at the
mercy of the revenue offices, without
adequate protection or defense. (Nava vs.
CIR, 13 SCRA 104, January 30, 1965).

showing of gross error or abuse on the part of the Tax Court.[15] In the
absence of any clear and convincing proof to the contrary, this Court must
presume that the CTA rendered a decision which is valid in every respect.
Under Section 203[16] of the National Internal Revenue Code (NIRC),
respondent had three (3) years from the last day for the filing of the return to
send an assessment notice to petitioner. In the case of Collector of Internal
Revenue v. Bautista,[17] this Court held that an assessment is made within
the prescriptive period if notice to this effect is released, mailed or sent by
the CIR to the taxpayer within said period. Receipt thereof by the taxpayer
within the prescriptive period is not necessary. At this point, it should be
clarified that the rule does not dispense with the requirement that the
taxpayer should actually receive, even beyond the prescriptive period, the
assessment notice which was timely released, mailed and sent.

xxxx
The failure of the respondent to prove receipt of the
assessment by the Petitioner leads to the conclusion that no
assessment was issued. Consequently, the governments right
to issue an assessment for the said period has already
prescribed. (Industrial Textile Manufacturing Co. of the Phils.,
Inc. vs. CIR CTA Case 4885, August 22, 1996).[13]

In the present case, records show that petitioner filed its Annual Income Tax
Return for taxable year 1987 on 14 April 1988.[18] The last day for filing by
petitioner of its return was on 15 April 1988,[19] thus, giving respondent
until 15 April 1991 within which to send an assessment notice. While

Jurisprudence has consistently shown that this Court accords the findings of

respondent avers that it sent the assessment notice dated 1 February

fact by the CTA with the highest respect. In Sea-Land Service Inc. v. Court of

1991 on 6 February 1991, within the three (3)-year period prescribed by law,

Appeals[14] this Court recognizes that the Court of Tax Appeals, which by the

petitioner denies having received an assessment notice from respondent.

very nature of its function is dedicated exclusively to the consideration of tax

Petitioner alleges that it came to know of the deficiency tax assessment only

problems, has necessarily developed an expertise on the subject, and its

on 17 March 1992 when it was served with the Warrant of Distraint and Levy.

conclusions will not be overturned unless there has been an abuse or

[20]

improvident exercise of authority. Such findings can only be disturbed on

appeal if they are not supported by substantial evidence or there is a

In Protectors Services, Inc. v. Court of Appeals,[21] this Court ruled that

when a mail matter is sent by registered mail, there exists a presumption, set

by him or such facts were acquired by him from reports made by persons

forth under Section 3(v), Rule 131 of the Rules of Court, [22] that it was

under a legal duty to submit the same.

received in the regular course of mail. The facts to be proved in order to raise

There are three requisites for admissibility under the rule just
mentioned: (a) that the entry was made by a public officer, or
by another person specially enjoined by law to do so; (b) that
it was made by the public officer in the performance of his
duties, or by such other person in the performance of a duty
specially enjoined by law; and (c) that the public officer or
other person had sufficient knowledge of the facts by him
stated, which must have been acquired by him personally or
through official information x x x.

this presumption are: (a) that the letter was properly addressed with postage
prepaid; and (b) that it was mailed. While a mailed letter is deemed received
by the addressee in the ordinary course of mail, this is still merely a
disputable presumption subject to controversion, and a direct denial of the
receipt thereof shifts the burden upon the party favored by the presumption
to prove that the mailed letter was indeed received by the addressee.[23]
In the present case, petitioner denies receiving the assessment notice, and
the respondent was unable to present substantial evidence that such notice
was, indeed, mailed or sent by the respondent before the BIRs right to assess

In this case, the entries made by Ingrid Versola were not based on
her personal knowledge as she did not attest to the fact that she personally
prepared and mailed the assessment notice. Nor was it stated in the
transcript of stenographic notes[26] how and from whom she obtained the
pertinent information. Moreover, she did not attest to the fact that she
acquired the reports from persons under a legal duty to submit the
same. Hence, Rule 130, Section 44 finds no application in the present
case. Thus, the evidence offered by respondent does not qualify as an
exception to the rule against hearsay evidence.

had prescribed and that said notice was received by the petitioner. The
respondent presented the BIR record book where the name of the taxpayer,
the kind of tax assessed, the registry receipt number and the date of mailing

Furthermore, independent evidence, such as the registry receipt of

the assessment notice, or a certification from the Bureau of Posts, could have
easily been obtained. Yet respondent failed to present such evidence.

were noted. The BIR records custodian, Ingrid Versola, also testified that she
made the entries therein. Respondent offered the entry in the BIR record

In the case of Nava v. Commissioner of Internal Revenue, [27] this Court

book and the testimony of its record custodian as entries in official records in

stressed on the importance of proving the release, mailing or sending of the

accordance with Section 44, Rule 130 of the Rules of Court,[24] which states

notice.

that:
Section 44. Entries in official records. - Entries in official
records made in the performance of his duty by a public
officer of the Philippines, or by a person in the performance of
a duty specially enjoined by law, are prima facie evidence of
the facts therein stated.

While we have held that an assessment is made when sent

within the prescribed period, even if received by the taxpayer
after its expiration (Coll. of Int. Rev. vs. Bautista, L-12250 and
L-12259, May 27, 1959), this ruling makes it the more
imperative that the release, mailing, or sending of the notice
be clearly and satisfactorily proved. Mere notations made
without the taxpayers intervention, notice, or control, without
adequate supporting evidence, cannot suffice; otherwise, the
taxpayer would be at the mercy of the revenue offices,
without adequate protection or defense.

The foregoing rule on evidence, however, must be read in accordance with

this Courts pronouncement in Africa v. Caltex (Phil.), Inc.,[25] where it has
been held that an entrant must have personal knowledge of the facts stated

In the present case, the evidence offered by the respondent fails to

convince this Court that Formal Assessment Notice No. FAN-1-87-91-000649
was released, mailed, or sent before 15 April 1991, or before the lapse of the

period of limitation upon assessment and collection prescribed by Section

203 of the NIRC. Such evidence, therefore, is insufficient to give rise to the
presumption that the assessment notice was received in the regular course of
mail. Consequently, the right of the government to assess and collect the
alleged deficiency tax is barred by prescription.

of the dismissal of Juanito Talidano (petitioner). The challenged decision

reversed and set aside the Decision[4] of the National Labor Relations
Commission (NLRC) and reinstated that of the Labor Arbiter.[5]

IN
VIEW
OF
THE
FOREGOING,
the
instant
Petition
is GRANTED. The assailed Decision of the Court of Appeals in CA-G.R. SP No.
60209 dated 11 July 2002, is hereby REVERSED and SET ASIDE, and the
Decision of the Court of Tax Appeals in C.T.A. Case No. 5662, dated 17 May
2000, cancelling the
1988
Deficiency
Tax
Assessment
against Barcelon, Roxas Securitites, Inc. (now known as UPB Securities, Inc.)
for being barred by prescription, is hereby REINSTATED. No costs.

Petitioner was employed as a second marine officer by Falcon Maritime and

Allied Services, Inc. (private respondent) and was assigned to M/V Phoenix
Seven, a vessel owned and operated by Hansu Corporation (Hansu) which is
based in Korea. His one (1)-year contract of employment commenced on 15

SO ORDERED.

October 1996 and stipulated the monthly wage at $900.00 with a fixed
overtime pay of $270.00 and leave pay of $75.00.[6]

JUANITO TALIDANO, G.R. No. 172031

Petitioner claimed that his chief officer, a Korean, always discriminated

Petitioner,
Present:

against and maltreated the vessels Filipino crew. This prompted him to send a

QUISUMBING, J.,

letter-complaint to the officer-in-charge of the International Transport

Chairperson,
- versus - CARPIO MORALES,
TINGA,

Federation (ITF) in London, a measure that allegedly was resented by the

VELASCO, JR., and
BRION, JJ.

FALCON MARITIME & ALLIED

SERVICES, INC., SPECIAL EIGHTH
DIVISION OF THE COURT OF Promulgated:
APPEALS, AND LABOR ARBITER
ERMITA C. CUYUGA,
Respondents. July 14, 2008

chief officer. Consequently, petitioner was dismissed on 21 January 1997. He

filed a complaint for illegal dismissal on 27 October 1999.[7]

x----------------------------------------------------------------------------x
DECISION
TINGA, J.:
Private respondent countered that petitioner had voluntarily disembarked the
This Petition for Certiorari[1] under Rule 65 of the Rules of Court seeks to

vessel after having been warned several times of dismissal from service for

annul the Decision[2] and Resolution[3] of the Court of Appeals, dated 16

his incompetence, insubordination, disrespect and insulting attitude toward

November 2005 and2 February 2006, respectively, which upheld the validity

his superiors. It cited an incident involving petitioners incompetence wherein

material allegation and/or document which is not denied

specifically is deemed admitted. If not of the timely call [sic]
from the port authority that M/V Phoenix Seven invaded other
route, the safety of the vessel, her crew and cargo may be
endangered. She could have collided with other vessels
because of complainants failure to render watch duty.[11]

the vessel invaded a different route at theOsaka Port in Japan due to the
absence of petitioner who was then supposed to be on watch duty. As proof,
it presented a copy of a fax message, sent to it on the date of incident,
reporting the vessels deviation from its course due to petitioners neglect of
duty at the bridge,[8] as well as a copy of the report of crew discharge issued

On appeal, the NLRC reversed the ruling of the Labor Arbiter and declared the
by the master of M/VPhoenix Seven two days after the incident.[9]
dismissal as illegal. The dispositive portion of the NLRCs decision reads:
Private respondent stated that since petitioner lodged the complaint before

WHEREFORE, premises considered, the decision appealed

from is hereby reversed and set aside and a new one entered
declaring
the
dismissal
of
the
complainant
as
illegal.Respondents Falcon Maritime & Allied Services, Inc.
and Hansu Corporation are hereby ordered to jointly and
severally pay complainant the amount equivalent to his three
(3) months salary as a result thereof.[12]

the Labor Arbiter two (2) years and nine (9) months after his repatriation,
prescription had already set in by virtue of Revised POEA Memorandum
Circular No. 55, series of 1996 which provides for a one-year prescriptive
period for the institution of seafarers claims arising from employment
contract.[10]

On 5 November 2001, the Labor Arbiter rendered judgment dismissing

petitioners complaint, holding that he was validly dismissed for gross neglect

The NLRC held that the fax messages in support of the alleged misbehavior

of duties. The Labor Arbiter relied on the fax messages presented by private

and neglect of duty by petitioner have no probative value and are self-

respondent to prove petitioners neglect of his duties, thus:

serving. It added that the ships logbook should have been submitted in
evidence as it is the repository of all the activities on board the vessel,

x x x The fax message said that the Master of M/V Phoenix

Seven received an emergency warning call from Japan Sisan
Sebo Naika Radio Authority calling attention to the Master of
the vessel M/V Phoenix Seven that his vessel is invading
other route [sic]. When the Master checked the Bridge, he
found out that the Second Officer (complainant) did not carry
out his duty wathch. There was a confrontation between the
Master and the Complainant but the latter insisted that he
was right. The argument of the Complainant asserting that he
was right cannot be sustained by this Arbitration Branch. The
fact that there was an emergency call from the Japanese port
authority that M/V Phoenix Seven was invading other route
simply means that Complainant neglected his duty. The fax
message stating that Complainant was not at the bridge at
the time of the emergency call was likewise not denied nor
refuted by the Complainant.Under our jurisprudence, any

especially those affecting the performance or attitude of the officers and

crew members, and, more importantly, the procedures preparatory to the
discharge of a crew member. The NLRC also noted that private respondent
failed to comply with due process in terminating petitioners employment.[13]

Private

respondent

moved

for

reconsideration,[14] claiming

that

the

complaint was filed beyond the one-year prescriptive period. The NLRC,
however, denied reconsideration in a Resolution dated 30 August 2002.

[15] Rejecting the argument that the complaint had already prescribed, it
ruled:
Records show that respondent in this case had filed a motion
to dismiss on the ground of prescription before the Labor
Arbiter a quo who denied the same in an Order dated August
1, 2000. Such an Order being unappealable, the said issue of
prescription cannot be raised anew specially in a motion for
reconsideration. (Citations omitted)[16]

G.R. SP No. 73521, the filing of the second petition hinging on the same
cause of action after the first petition had been dismissed violates not only
It appears that respondent received a copy of the NLRC Resolution[17] on 24

the rule on forum shopping but also the principle of res judicata. He

September 2002 and that said resolution became final and executory on 7

highlighted the fact that the decision subject of the second petition before

October 2002.[18]

the Court of Appeals had twice become final and executory, with entries of
judgment made first by the NLRC and then by the Court of Appeals.

Private respondent brought the case to the Court of Appeals via a Petition for
Certiorari[19] on 8 October 2002. The petition, docketed as CA-G.R. Sp. No.

The appellate court ultimately settled the issue of prescription, categorically

73521, was dismissed on technicality in a Resolution dated 29 October 2002.

declaring that the one-year prescriptive period applies only to employment

The pertinent portion of the resolution reads:

contracts entered into as of 1 January 1997 and not those entered prior
thereto, thus:

(1)
[T]he
VERIFICATION
AND
CERTIFICATION OF NON-FORUM SHOPPING was
signed by one Florida Z. Jose, President of
petitioner Falcon Maritime and Allied Services,
Inc., without proof that she is the duly authorized
representative of petitioner-corporation;
(2)
[T]here is no affidavit of
service of the petition to the National Labor
Relations Commission and to the adverse party;
(3)
[T]here is no explanation to
justify service by mail in lieu of the required
personal service. (Citations omitted)[20]

x x x The question of prescription is untenable. Admittedly,

POEA Memorandum Circular [No.] 55 prescribing the standard
terms of an employment contract of a seafarer was in effect
when the respondent was repatriated on January 21,
1997. This administrative issuance was released in
accordance with Department Order [No.] 33 of the Secretary
of Labor directing the revision of the existing Standard
Employment Contract to be effective by January 1,
1997. Section 28 of this revised contract states: all claims
arising therefrom shall be made within one year from the
date of the seafarers return to the point of hire.

An entry of judgment was issued by the clerk of court on 23 November

2002 stating that the 29 October 2002 Resolution had already become final
and executory.[21]Meanwhile, on 12 November 2002, private respondent
filed another petition before the Court of Appeals,[22] docketed as CA G.R. SP
No. 73790. This is the subject of the present petition.

Petitioner dispensed with the filing of a comment.[23] In his Memorandum,

[24] however, he argued that an entry of judgment having been issued in CA-

It is crystal clear that the one-year period of prescription of

claims in the revised standard contract applies only to
employment contracts entered into as of January 1, 1997. If
there is still any doubt about this, it should be removed by
the provision of Circular [No.] 55 which says that the new
schedule of benefits to be embodied in the standard contract
will apply to any Filipino seafarer that will be deployed on or
after the effectivity of the circular.
The respondent was deployed before January 1, 1997. As
acknowledged by the petitioners, the rule prior to Circular
[No.] 55 provided for a prescriptive period of three years. We
cannot avoid the ineluctable conclusion that the claim of the
respondent was filed within the prescriptive period.[25]

cognizance of the second petition by stressing that there is no law, rule or

decision that prohibits the filing of a new petition for certiorari within the
Despite ruling that prescription had not set in, the appellate court
reglementary period after the dismissal of the first petition due to
nonetheless declared petitioners dismissal from employment as valid and
technicality.[27] It rebuts petitioners charge of forum shopping by pointing
reinstated the Labor Arbiters decision.
out that the dismissal of the first petition due to technicality has not ripened
into res judicata, which is an essential element of forum shopping.[28]
The appellate court relied on the fax messages issued by the ship master
shortly after petitioner had committed a serious neglect of his duties. It noted
In determining whether a party has violated the rule against forum shopping,
that the said fax messages constitute the res gestae. In defending the nonthe test to be applied is whether the elements of litis pendentia are present
presentation of the logbook, it stated that three years had already passed
or whether a final judgment in one case will amount to res judicata in the
since the incident and Hansu was no longer the principal of private
other.[29] This issue has been thoroughly and extensively discussed and
respondent.
correctly resolved by the Court of Appeals in this wise:
Petitioners motion for reconsideration was denied. Hence he filed this instant
petition.

Citing grave abuse of discretion on the part of the Court of Appeals,

petitioner reiterates his argument that the appellate court should not have
accepted the second petition in view of the fact that a corresponding entry of
judgment already has been issued. By filing the second petition, petitioner
believes that private respondent has engaged in forum shopping.[26]

Private respondent, for its part, defends the appellate court in taking

The respondents two arguments essay on certain

developments in the case after the NLRC rendered its
decision. He points out with alacrity that an entry of
judgment was issued twice first by the NLRC with respect to
its decision and then by the Ninth Division of the Court of
Appeals after it dismissed on technical grounds the first
petition for certiorari filed by the petitioner.Neither event, for
sure, militates against the institution of a second petition for
certiorari. A decision of the NLRC is never final for as long as
it is the subject of a petition for certiorari that is pending with
a superior court. A contrary view only demeans our certiorari
jurisdiction and will never gain currency under our system of
appellate court review. It is more to the point to ask if a
second petition can stand after the first is dismissed, but
under the particular circumstances in which the second was
brought, we hold that it can. The theory of res judicata
invoked by the respondent to bar the filing of the second
petition does not apply. The judgment or final resolution in
the first petition must be on the merits for res judicata to
inhere, and it will not be on the merits if it is founded on a
consideration of only technical or collateral points. Yet this
was exactly how the first petition was disposed of. SP 73521
was dismissed as a result of the failure of the petitioner to
comply with the procedural requirements of a petition for
certiorari. The case never touched base. There was no
occasion for the determination of the substantive rights of
the parties and, in this sense, the merits of the case were not
involved. The petitioner had actually the option of either

refilling [sic] the case or seeking reconsideration in the

original action. It chose to file SP 73790 after realizing that it
still had enough time left of the original period of 60 days
under Rule 65 to do so.

Petitioner submits that the Court of Appeals erred in relying merely on fax
messages to support the validity of his dismissal from employment. He

Since the dismissal of the first petition did not ripen into res
judicata, it may not be said that there was forum shopping
with the filing of the second. The accepted test for
determining whether a party violated the rule against forum
shopping insofar as it is applicable to this setting is whether
the judgment or final resolution in the first case amounts
to res judicata in the second. Res judicata is central to the
idea of forum shopping. Without it, forum shopping is nonexistent. The dismissal of the first petition, moreover, if it
does not amount to res judicata, need not be mentioned in
the certification of non-forum shopping accompanying the
second action. The omission will not be fatal to the viability of
the second case. (Citations omitted)[30]

maintains that the first fax message containing the information that the
vessel encroached on a different route was a mere personal observation of
the ship master and should have thus been corroborated by evidence, and
that these fax messages cannot be considered as res gestae because the
statement of the ship master embodied therein is just a report. He also
contends that he has not caused any immediate danger to the vessel and
that if he did commit any wrongdoing, the incident would have been recorded
in the logbook. Thus, he posits that the failure to produce the logbook
reinforces the theory that the fax messages have been concocted to justify
his unceremonious dismissal from employment. Hence, he believes that his
dismissal from employment stemmed from his filing of the complaint with the

Private respondent, in turn, questions the propriety of the instant certiorari

ITF which his superiors resented.[34]
petition and avers that the issues raised by petitioner can only be dealt with
under Rule 45 of the Rules of Court.[31] Against this thesis, petitioner
Private respondent insists that the appellate court is correct in considering
submits that the acceptance of the petition is addressed to the sound
the fax messages as res gestae statements. It likewise emphasizes that nondiscretion of this Court.[32]
presentment of the logbook is justified as the same could no longer be
retrieved because Hansu has already ceased to be its principal. Furthermore,
The proper remedy to assail decisions of the Court of Appeals involving final
it refutes the allegation of petitioner that he was dismissed because he filed a
disposition of a case is through a petition for review under Rule 45. In this
complaint with the ITF in behalf of his fellow crew members. It claims that
case,

petitioner

filed

instead

certiorari

petition

under

Rule
petitioners allegation is a hoax because there is no showing that the alleged

65. Notwithstanding this procedural lapse, this Court resolves to rule on the
complaint has been received by the ITF and that no action thereon was ever
merits of the petition in the interest of substantial justice,[33]the underlying
taken by the ITF.[35]
consideration in this petition being the arbitrary dismissal of petitioner from
employment.

Private respondent also asserts that petitioner was not dismissed but that he
voluntarily asked for his repatriation. This assertion, however, deserves scant

consideration. It is highly illogical for an employee to voluntarily request for

repatriation and then file a suit for illegal dismissal. As voluntary repatriation
is synonymous to resignation, it is proper to conclude that repatriation is
JUST RECEIVED PHONE CALL FROM MASTER N C/OFFICER
THAT
THEY
DECIDED
TO
DISCHARGE
2/OFFICER
AT OSAKA PORT.

inconsistent with the filing of a complaint for illegal dismissal.[36]

DUE TO MIS-BEHAVIOUR N RESEST [SIC] TO OFFICIAL ORDER.

The paramount issue therefore boils down to the validity of petitioners
dismissal, the determination of which generally involves a question of fact. It
is not the function of this Court to assess and evaluate the facts and the

CAPT.
HAD
RECEIVED EMERGENCY
WARNING
CALL
FROM JAPAN BISAN SETO NAIKAI RADIO AUTHORITY THAT
SHIP IS INVADING OTHER ROUTE.
SO, HE WAS SURPRISED N CAME TO BRIDGE N FOUND 2/O
NOT CARRY OUT HIS WATCH DUTY.

evidence again, our jurisdiction being generally limited to reviewing errors of

law that might have been committed by the trial court or administrative

MASTER SCOLD HIM ABOUT THIS N CORRECT HIS ERROR BUT

HE RESIST [SIC] THAT HE IS RIGHT AND THEN SAID THAT HE
WILL COME BACK HOME.

agency. Nevertheless, since the factual findings of the Court of Appeals and
the Labor Arbiter are at variance with those of the NLRC, we resolve to
evaluate the records and the evidence presented by the parties.[37]

FURTHER MORE HE ASKED MASTER TO PAY HIM I.T.F. WAGE

SCALE.
MASTER N/CIO STRONGLY ASKED US HIS REPATRIATION WITH
I.E.U.

The validity of an employee's dismissal hinges on the satisfaction of two

PLS. CONFIRM YOUR OPINION ON THIS HAPPENING.[39]
substantive requirements, to wit: (1) the dismissal must be for any of the
causes provided for in Article 282 of the Labor Code; and (2) the employee
was accorded due process, basic of which is the opportunity to be heard and
The second fax message dated 20 January 1997 pertained to a report of crew
to defend himself.[38]
discharge essentially containing the same information as the first fax
message. The Court of Appeals treated these fax messages as part of the res
The Labor Arbiter held that petitioners absence during his watch duty when
gestae proving neglect of duty on the part of petitioner.
an

emergency

call

was

received

from

the

Japanese

port

authority

that M/V Phoenix Seven was invading other route constituted neglect of duty,
a just cause for terminating an employee. Records reveal that this
information was related to private respondent via two fax messages sent by
the captain of M/V Phoenix Seven. The first fax message dated 18 January
1997 is reproduced below:

significance to the equivocal act.[43]

Petitioners alleged absence from watch duty is simply an innocuous act or at
Section 42 of Rule 130[40] of the Rules of Court mentions two acts which

least proved to be one. Assuming arguendo that such absence was the

form part of the res gestae, namely: spontaneous statements and verbal

equivocal act, it is nevertheless not accompanied by any statement more so

acts. In spontaneous exclamations, the res gestae is the startling occurrence,

by the fax statements adverted to as parts of the res gestae. No date or time

whereas in verbal acts, the res gestae are the statements accompanying the

has been mentioned to determine whether the fax messages were made

equivocal act.[41] We find that the fax messages cannot be deemed part

simultaneously with the purported equivocal act.

of the res gestae.

Furthermore, the material contents of the fax messages are unclear. The
matter of route encroachment or invasion is questionable. The ship master,
To be admissible under the first class of res gestae, it is required that: (1) the
who is the author of the fax messages, did not witness the incident. He
principal act be a startling occurrence; (2) the statements were made before
obtained such information only from the Japanese port authorities. Verily, the
the declarant had the time to contrive or devise a falsehood; and (3) that the
messages can be characterized as double hearsay.
statements must concern the occurrence in question and its immediate
attending circumstances.[42]

Assuming that petitioners negligencewhich allegedly caused the ship to

deviate from its courseis the startling occurrence, there is no showing that
the statements contained in the fax messages were made immediately after
the alleged incident. In addition, no dates have been mentioned to determine
if

these

utterances

were

made

spontaneously

or

with

careful

deliberation. Absent the critical element of spontaneity, the fax messages

cannot be admitted as part of the res gestae of the first kind.
Neither will the second kind of res gestae apply. The requisites for its
admissibility are: (1) the principal act to be characterized must be equivocal;
(2) the equivocal act must be material to the issue; (3) the statement must
accompany the equivocal act; and (4) the statements give a legal

procedure

taken

against

the

employees

prior

to

their

dismissal.

In any event, under Article 282 of the Labor Code,[44] an employer may

[49] In Wallem Maritime Services, Inc. v. NLRC,[50] the logbook is a vital

terminate an employee for gross and habitual neglect of duties. Neglect of

evidence as Article 612 of the Code of Commerce requires the ship captain to

duty, to be a ground for dismissal, must be both gross and habitual. Gross

keep a record of the decisions he had adopted as the vessel's head.

negligence connotes want of care in the performance of ones duties.

[51] Therefore, the non-presentation of the logbook raises serious doubts as

Habitual neglect implies repeated failure to perform ones duties for a period

to whether the incident did happen at all.

of time, depending upon the circumstances. A single or isolated act of

negligence does not constitute a just cause for the dismissal of the

In termination cases, the burden of proving just or valid cause for dismissing

employee.[45]

an employee rests on the employer.[52] Private respondent miserably failed

to discharge this burden. Consequently, the petitioners dismissal is illegal.

Petitioners supposed absence from watch duty in a single isolated instance is

neither gross nor habitual negligence. Without question, the alleged lapse did
not result in any untoward incident. If there was any serious aftermath, the

We also note that private respondent failed to comply with the procedural

incident should have been recorded in the ships logbook and presented by

due process requirement for terminating an employee. Such requirement is

private respondent to substantiate its claim.Instead, private respondent

not a mere formality that may be dispensed with at will. Its disregard is a

belittled the probative value of the logbook and dismissed it as self-

matter of serious concern since it constitutes a safeguard of the highest order

serving. Quite the contrary, the ships logbook is the repository of all activities

in response to man's innate sense of justice. The Labor Code does not, of

and transactions on board a vessel. Had the route invasion been so serious as

course, require a formal or trial type proceeding before an erring employee

to merit petitioners dismissal, then it would have been recorded in the

may be dismissed. This is especially true in the case of a vessel on the ocean

logbook. Private respondent would have then had all the more reason to

or in a foreign port. The minimum requirement of due process in termination

preserve it considering that vital pieces of information are contained therein.

proceedings, which must be complied with even with respect to seamen on

board a vessel, consists of notice to the employees intended to be dismissed

In Haverton Shipping Ltd. v. NLRC,[46] the Court held that the vessels
and the grant to them of an opportunity to present their own side of the
logbook is an official record of entries made by a person in the performance
alleged offense or misconduct, which led to the management's decision to
of a duty required by law.[47] In Abacast Shipping and Management Agency,
terminate. To meet the requirements of due process, the employer must
Inc. v. NLRC,[48] a case cited by petitioner, the logbook is a respectable
furnish the worker sought to be dismissed with two written notices before
record that can be relied upon to authenticate the charges filed and the
termination of employment can be legally effected, i.e., (1) a notice which

apprises the employee of the particular acts or omissions for which his
dismissal is sought; and (2) the subsequent notice after due hearing which
informs the employee of the employers decision to dismiss him.[53]

Private respondents sole reliance on the fax messages in dismissing

petitioner is clearly insufficient as these messages were addressed only to
itself. No notice was ever given to petitioner apprising him in writing of the
particular acts showing neglect of duty. Neither was he informed of his
dismissal from employment. Petitioner was never given an opportunity to
present his side. The failure to comply with the two-notice rule only
aggravated respondents liability on top of dismissing petitioner without a
valid cause.
Pursuant to Section 10 of Republic Act No. 8042[54] or the Migrant Workers
Act, employees who are unjustly dismissed from work are entitled to an
amount representing their three (3) months salary considering that their
employment contract has a term of exactly one (1) year plus a full refund of
his placement fee, with interest at 12% per annum.[55]

IN LIGHT OF THE FOREGOING, the petition is GRANTED. The Decision of the

Court

of

Appeals

is

REVERSED

and

SET

ASIDE. The Decision of the NLRC isREINSTATED with the MODIFICATION that in
addition to the payment of the sum equivalent to petitioners three (3)
months salary, the full amount of placement fee with 12% legal interest must
be refunded.

SO ORDERED.

[G.R. No. 107518. October 8, 1998]

PNOC

SHIPPING
AND
TRANSPORT
CORPORATION, petitioner,
vs. HONORABLE COURT OF APPEALS and MARIA EFIGENIA
FISHING CORPORATION, respondents.

DECISION
ROMERO, J.:
A party is entitled to adequate compensation only for such pecuniary
loss actually suffered and duly proved.[1] Indeed, basic is the rule that to
recover actual damages, the amount of loss must not only be capable of
proof but must actually be proven with a reasonable degree of certainty,
premised upon competent proof or best evidence obtainable of the actual
amount thereof.[2] The claimant is duty-bound to point out specific facts that
afford a basis for measuring whatever compensatory damages are borne.
[3] A court cannot merely rely on speculations, conjectures, or guesswork as
to the fact and amount of damages[4] as well as hearsay[5] or
uncorroborated testimony whose truth is suspect.[6] Such are the
jurisprudential precepts that the Court now applies in resolving the instant
petition.
The records disclose that in the early morning of September 21, 1977,
the M/V Maria Efigenia XV, owned by private respondent Maria Efigenia
Fishing Corporation, was navigating the waters near Fortune Island in
Nasugbu, Batangas on its way to Navotas, Metro Manila when it collided with
the vessel Petroparcel which at the time was owned by the Luzon
Stevedoring Corporation (LSC).

After investigation was conducted by the Board of Marine Inquiry,

Philippine Coast Guard Commandant Simeon N. Alejandro rendered a
decision finding the Petroparcel at fault. Based on this finding by the Board
and after unsuccessful demands on petitioner,[7] private respondent sued
the LSC and the Petroparcel captain, Edgardo Doruelo, before the then Court
of First Instance of Caloocan City, paying thereto the docket fee of one
thousand two hundred fifty-two pesos (P1,252.00) and the legal research fee
of two pesos (P2.00).[8] In particular, private respondent prayed for an award
of P692,680.00, allegedly representing the value of the fishing nets, boat
equipment and cargoes of M/V Maria Efigenia XV, with interest at the legal
rate plus 25% thereof as attorneys fees. Meanwhile, during the pendency of
the case, petitioner PNOC Shipping and Transport Corporation sought to be
substituted in place of LSC as it had already acquired ownership of
the Petroparcel.[9]
For its part, private respondent later sought the amendment of its
complaint on the ground that the original complaint failed to plead for the
recovery of the lost value of the hull of M/V Maria Efigenia XV.
[10] Accordingly, in the amended complaint, private respondent averred
that M/V Maria Efigenia XV had an actual value of P800,000.00 and that, after
deducting
the
insurance
payment
of P200,000.00,
the
amount
of P600,000.00 should likewise be claimed. The amended complaint also
alleged that inflation resulting from the devaluation of the Philippine peso
had affected the replacement value of the hull of the vessel, its equipment
and its lost cargoes, such that there should be a reasonable determination
thereof. Furthermore, on account of the sinking of the vessel, private
respondent supposedly incurred unrealized profits and lost business
opportunities that would thereafter be proven.[11]
Subsequently, the complaint was further amended to include petitioner
as a defendant[12] which the lower court granted in its order of September
16, 1985.[13] After petitioner had filed its answer to the second amended
complaint, on February 5, 1987, the lower court issued a pre-trial
order[14] containing, among other things, a stipulations of facts, to wit:
1. On 21 September 1977, while the fishing boat `M/V MARIA EFIGENIA
owned by plaintiff was navigating in the vicinity of Fortune Island in Nasugbu,
Batangas, on its way to Navotas, Metro Manila, said fishing boat was hit by
the LSCO tanker Petroparcel causing the former to sink.
2. The Board of Marine Inquiry conducted an investigation of this marine
accident and on 21 November 1978, the Commandant of the Philippine Coast
Guard, the Honorable Simeon N. Alejandro, rendered a decision finding the
cause of the accident to be the reckless and imprudent manner in which
Edgardo Doruelo navigated the LSCO Petroparcel and declared the latter
vessel at fault.
3. On 2 April 1978, defendant Luzon Stevedoring Corporation (LUSTEVECO),
executed in favor of PNOC Shipping and Transport Corporation a Deed of
Transfer involving several tankers, tugboats, barges and pumping stations,
among which was the LSCO Petroparcel.
4. On the same date on 2 April 1979 (sic), defendant PNOC STC again entered
into an Agreement of Transfer with co-defendant Lusteveco whereby all the
business properties and other assets appertaining to the tanker and bulk oil

departments including the motor tanker LSCO Petroparcel of defendant

Lusteveco were sold to PNOC STC.
5. The aforesaid agreement stipulates, among others, that PNOC-STC
assumes, without qualifications, all obligations arising from and by virtue of
all rights it obtained over the LSCO `Petroparcel.
6. On 6 July 1979, another agreement between defendant LUSTEVECO and
PNOC-STC was executed wherein Board of Marine Inquiry Case No. 332
(involving the sea accident of 21 September 1977) was specifically identified
and assumed by the latter.
7. On 23 June 1979, the decision of Board of Marine Inquiry was affirmed by
the Ministry of National Defense, in its decision dismissing the appeal of Capt.
Edgardo Doruelo and Chief mate Anthony Estenzo of LSCO `Petroparcel.
8. LSCO `Petroparcel is presently owned and operated by PNOC-STC and
likewise Capt. Edgardo Doruelo is still in their employ.
9. As a result of the sinking of M/V Maria Efigenia caused by the reckless and
imprudent manner in which LSCO Petroparcel was navigated by defendant
Doruelo, plaintiff suffered actual damages by the loss of its fishing nets, boat
equipments (sic) and cargoes, which went down with the ship when it sank
the replacement value of which should be left to the sound discretion of this
Honorable Court.
After trial, the lower court[15] rendered on November 18, 1989 its
decision disposing of Civil Case No. C-9457 as follows:
WHEREFORE, and in view of the foregoing, judgment is hereby rendered in
favor of the plaintiff and against the defendant PNOC Shipping & Transport
Corporation, to pay the plaintiff:
a. The sum of P6,438,048.00 representing the value of the fishing boat with
interest from the date of the filing of the complaint at the rate of 6% per
annum;
b. The sum of P50,000.00 as and for attorneys fees; and
c. The costs of suit.
The counterclaim is hereby DISMISSED for lack of merit. Likewise, the case
against defendant Edgardo Doruelo is hereby DISMISSED, for lack of
jurisdiction.
SO ORDERED.
In arriving at the above disposition, the lower court cited the evidence
presented by private respondent consisting of the testimony of its general
manager and sole witness, Edilberto del Rosario. Private respondents witness
testified that M/V Maria Efigenia XV was owned by private respondent per
Exhibit A, a certificate of ownership issued by the Philippine Coast Guard
showing that M/V Maria Efigenia XV was a wooden motor boat constructed in
1965 with 128.23 gross tonnage. According to him, at the time the vessel
sank, it was then carrying 1,060 tubs (baeras) of assorted fish the value of
which was never recovered. Also lost with the vessel were two cummins
engines (250 horsepower), radar, pathometer and compass. He further added
that with the loss of his flagship vessel in his fishing fleet of fourteen (14)

vessels, he was constrained to hire the services of counsel whom he paid

P10,000 to handle the case at the Board of Marine Inquiry and P50,000.00 for
commencing suit for damages in the lower court.
As to the award of P6,438,048.00 in actual damages, the lower court
took into account the following pieces of documentary evidence that private
respondent proffered during trial:
(a) Exhibit A certified xerox copy of the certificate of ownership of M/V Maria
Efigenia XV;
(b) Exhibit B a document titled Marine Protest executed by Delfin Villarosa, Jr.
on September 22, 1977 stating that as a result of the collision, the M/V Maria
Efigenia XV sustained a hole at its left side that caused it to sink with its
cargo of 1,050 baeras valued at P170,000.00;
(c) Exhibit C a quotation for the construction of a 95-footer trawler issued by
Isidoro A. Magalong of I. A. Magalong Engineering and Construction on
January 26, 1987 to Del Rosario showing that construction of such trawler
would cost P2,250,000.00;
(d) Exhibit D pro forma invoice No. PSPI-05/87-NAV issued by E.D. Daclan of
Power Systems, Incorporated on January 20, 1987 to Del Rosario showing that
two (2) units of CUMMINS Marine Engine model N855-M, 195 bhp. at 1800
rpm. would cost P1,160,000.00;
(e) Exhibit E quotation of prices issued by Scan Marine Inc. on January 20,
1987 to Del Rosario showing that a unit of Furuno Compact Daylight Radar,
Model FR-604D, would cost P100,000.00 while a unit of Furuno Color Video
Sounder, Model FCV-501 would cost P45,000.00 so that the two units would
cost P145,000.00;
(f) Exhibit F quotation of prices issued by Seafgear Sales, Inc. on January 21,
1987 to Del Rosario showing that two (2) rolls of nylon rope (5 cir. X 300fl.)
would cost P140,000.00; two (2) rolls of nylon rope (3 cir. X
240fl.),P42,750.00; one (1) binocular (7 x 50), P1,400.00, one (1) compass
(6), P4,000.00 and 50 pcs. of floats, P9,000.00 or a total of P197, 150.00;
(g) Exhibit G retainer agreement between Del Rosario and F. Sumulong
Associates Law Offices stipulating an acceptance fee of P5,000.00, per
appearance fee of P400.00, monthly retainer of P500.00, contingent fee of
20% of the total amount recovered and that attorneys fee to be awarded by
the court should be given to Del Rosario; and
(h) Exhibit H price quotation issued by Seafgear Sales, Inc. dated April 10,
1987 to Del Rosario showing the cost of poly nettings as: 50 rolls of 400/18
3kts. 100md x 100mtrs., P70,000.00; 50 rolls of 400/18 5kts. 100md x
100mtrs.,P81,500.00;
50
rolls
of
400/18
8kts.
100md
x
100mtrs., P116,000.00, and 50 rolls of 400/18 10kts. 100md x
100mtrs., P146,500 and banera (tub) at P65.00 per piece or a total
of P414,065.00
The lower court held that the prevailing replacement value
of P6,438,048.00 of the fishing boat and all its equipment would regularly
increase at 30% every year from the date the quotations were given.
On the other hand, the lower court noted that petitioner only presented

Lorenzo Lazaro, senior estimator at PNOC Dockyard & Engineering

Corporation, as sole witness and it did not bother at all to offer any
documentary evidence to support its position. Lazaro testified that the price
quotations submitted by private respondent were excessive and that as an
expert witness, he used the quotations of his suppliers in making his
estimates. However, he failed to present such quotations of prices from his
suppliers, saying that he could not produce a breakdown of the costs of his
estimates as it was a sort of secret scheme. For this reason, the lower court
concluded:
Evidently, the quotation of prices submitted by the plaintiff relative to the
replacement value of the fishing boat and its equipments in the tune
of P6,438,048.00 which were lost due to the recklessness and imprudence of
the herein defendants were not rebutted by the latter with sufficient
evidence. The defendants through their sole witness Lorenzo Lazaro relied
heavily on said witness bare claim that the amount afore-said is excessive or
bloated, but they did not bother at all to present any documentary evidence
to substantiate such claim. Evidence to be believed, must not only proceed
from the mouth of the credible witness, but it must be credible in itself. (Vda.
de Bonifacio vs. B. L. T. Bus Co., Inc. L-26810, August 31, 1970).
Aggrieved, petitioner filed a motion for the reconsideration of the lower
courts decision contending that: (1) the lower court erred in holding it liable
for damages; that the lower court did not acquire jurisdiction over the case
by paying only P1,252.00 as docket fee; (2) assuming that plaintiff was
entitled to damages, the lower court erred in awarding an amount greater
than that prayed for in the second amended complaint; and (3) the lower
court erred when it failed to resolve the issues it had raised in its
memorandum.[16] Petitioner likewise filed a supplemental motion for
reconsideration expounding on whether the lower court acquired jurisdiction
over the subject matter of the case despite therein plaintiffs failure to pay the
prescribed docket fee.[17]
On January 25, 1990, the lower court declined reconsideration for lack of
merit.[18] Apparently not having received the order denying its motion for
reconsideration, petitioner still filed a motion for leave to file a reply to
private respondents opposition to said motion.[19] Hence, on February 12,
1990, the lower court denied said motion for leave to file a reply on the
ground that by the issuance of the order of January 25, 1990, said motion had
become moot and academic.[20]

these documentary exhibits (price quotations) as evidence rests on the sound

discretion of the trial court. In fact, where the lower court is confronted with
evidence which appears to be of doubtful admissibility, the judge should
declare in favor of admissibility rather than of non-admissibility (The
Collector of Palakadhari, 124 [1899], p. 43, cited in Francisco, Revised Rules
of Court, Evidence, Volume VII, Part I, 1990 Edition, p. 18). Trial courts are
enjoined to observe the strict enforcement of the rules of evidence which
crystallized through constant use and practice and are very useful and
effective aids in the search for truth and for the effective administration of
justice. But in connection with evidence which may appear to be of doubtful
relevancy or incompetency or admissibility, it is the safest policy to be liberal,
not rejecting them on doubtful or technical grounds, but admitting them
unless plainly irrelevant, immaterial or incompetent, for the reason that their
rejection places them beyond the consideration of the court. If they are
thereafter found relevant or competent, can easily be remedied by
completely discarding or ignoring them. (Banaria vs. Banaria, et al., C.A. No.
4142, May 31, 1950; cited in Francisco, Supra).[Underscoring supplied].
Stressing that the alleged inadmissible documentary exhibits were never
satisfactorily rebutted by appellants own sole witness in the person of
Lorenzo Lazaro, the appellate court found that petitioner ironically situated
itself in an inconsistent posture by the fact that its own witness, admittedly
an expert one, heavily relies on the very same pieces of evidence (price
quotations) appellant has so vigorously objected to as inadmissible
evidence. Hence, it concluded:
x x x. The amount of P6,438,048.00 was duly established at the trial on the
basis of appellees documentary exhibits (price quotations) which stood
uncontroverted, and which already included the amount by way of
adjustment as prayed for in the amended complaint. There was therefore no
need for appellee to amend the second amended complaint in so far as to the
claim for damages is concerned to conform with the evidence presented at
the trial. The amount ofP6,438,048.00 awarded is clearly within the relief
prayed for in appellees second amended complaint.
On the issue of lack of jurisdiction, the respondent court held that
following the ruling in Sun Insurance Ltd. v. Asuncion,[22] the additional
docket fee that may later on be declared as still owing the court may be
enforced as a lien on the judgment.
Hence, the instant recourse.

Unsatisfied with the lower courts decision, petitioner elevated the matter
to the Court of Appeals which, however, affirmed the same in toto on October
14, 1992.[21] On petitioners assertion that the award of P6,438,048.00 was
not convincingly proved by competent and admissible evidence, the Court of
Appeals ruled that it was not necessary to qualify Del Rosario as an expert
witness because as the owner of the lost vessel, it was well within his
knowledge and competency to identify and determine the equipment
installed and the cargoes loaded on the vessel. Considering the documentary
evidence presented as in the nature of market reports or quotations, trade
journals, trade circulars and price lists, the Court of Appeals held, thus:
Consequently, until such time as the Supreme Court categorically rules on
the admissibility or inadmissibility of this class of evidence, the reception of

In assailing the Court of Appeals decision, petitioner posits the view that
the award of P6,438,048 as actual damages should have been in light of
these considerations, namely: (1) the trial court did not base such award on
the actual value of the vessel and its equipment at the time of loss in 1977;
(2) there was no evidence on extraordinary inflation that would warrant an
adjustment of the replacement cost of the lost vessel, equipment and cargo;
(3) the value of the lost cargo and the prices quoted in respondents
documentary evidence only amount toP4,336,215.00; (4) private respondents
failure to adduce evidence to support its claim for unrealized profit and
business opportunities; and (5) private respondents failure to prove the
extent and actual value of damages sustained as a result of the 1977

collision of the vessels.[23]

Under Article 2199 of the Civil Code, actual or compensatory damages
are those awarded in satisfaction of, or in recompense for, loss or injury
sustained. They proceed from a sense of natural justice and are designed to
repair the wrong that has been done, to compensate for the injury inflicted
and not to impose a penalty.[24] In actions based on torts or quasi-delicts,
actual damages include all the natural and probable consequences of the act
or omission complained of.[25] There are two kinds of actual or
compensatory damages: one is the loss of what a person already possesses
(dao emergente), and the other is the failure to receive as a benefit that
which would have pertained to him (lucro cesante).[26] Thus:
Where goods are destroyed by the wrongful act of the defendant the plaintiff
is entitled to their value at the time of destruction, that is, normally, the sum
of money which he would have to pay in the market for identical or
essentially similar goods, plus in a proper case damages for the loss of use
during the period before replacement. In other words, in the case of profitearning chattels, what has to be assessed is the value of the chattel to its
owner as a going concern at the time and place of the loss, and this means,
at least in the case of ships, that regard must be had to existing and pending
engagements.x x x.

collision. Noticeably, petitioner did not object to the exhibits in terms of the
time index for valuation of the lost goods and equipment. In objecting to the
same pieces of evidence, petitioner commented that these were not duly
authenticated and that the witness (Del Rosario) did not have personal
knowledge on the contents of the writings and neither was he an expert on
the subjects thereof.[31] Clearly ignoring petitioners objections to the
exhibits, the lower court admitted these pieces of evidence and gave them
due weight to arrive at the award of P6,438,048.00 as actual damages.
The exhibits were presented ostensibly in the course of Del Rosarios
testimony. Private respondent did not present any other witnesses especially
those whose signatures appear in the price quotations that became the bases
of the award. We hold, however, that the price quotations are ordinary
private writings which under the Revised Rules of Court should have been
proffered along with the testimony of the authors thereof. Del Rosario could
not have testified on the veracity of the contents of the writings even though
he was the seasoned owner of a fishing fleet because he was not the one
who issued the price quotations. Section 36, Rule 130 of the Revised Rules of
Court provides that a witness can testify only to those facts that he knows of
his personal knowledge.

x x x. If the market value of the ship reflects the fact that it is in any case
virtually certain of profitable employment, then nothing can be added to that
value in respect of charters actually lost, for to do so would be pro tanto to
compensate the plaintiff twice over. On the other hand, if the ship is valued
without reference to its actual future engagements and only in the light of its
profit-earning potentiality, then it may be necessary to add to the value thus
assessed the anticipated profit on a charter or other engagement which it
was unable to fulfill. What the court has to ascertain in each case is the
`capitalised value of the vessel as a profit-earning machine not in the
abstract but in view of the actual circumstances, without, of course, taking
into account considerations which were too remote at the time of the loss.
[27] [Underscoring supplied].

For this reason, Del Rosarios claim that private respondent incurred
losses in the total amount of P6,438,048.00 should be admitted with extreme
caution considering that, because it was a bare assertion, it should be
supported by independent evidence. Moreover, because he was the owner of
private respondent corporation[32] whatever testimony he would give with
regard to the value of the lost vessel, its equipment and cargoes should be
viewed in the light of his self-interest therein. We agree with the Court of
Appeals that his testimony as to the equipment installed and the cargoes
loaded on the vessel should be given credence[33] considering his familiarity
thereto. However, we do not subscribe to the conclusion that his valuationof
such equipment, cargo and the vessel itself should be accepted as gospel
truth.[34] We must, therefore, examine the documentary evidence presented
to support Del Rosarios claim as regards the amount of losses.

As stated at the outset, to enable an injured party to recover actual or

compensatory damages, he is required to prove the actual amount of loss
with reasonable degree of certainty premised upon competent proof and on
the best evidence available.[28] The burden of proof is on the party who
would be defeated if no evidence would be presented on either side. He must
establish his case by a preponderance of evidence which means that the
evidence, as a whole, adduced by one side is superior to that of the other.
[29] In other words, damages cannot be presumed and courts, in making an
award must point out specific facts that could afford a basis for measuring
whatever compensatory or actual damages are borne.[30]

The price quotations presented as exhibits partake of the nature of

hearsay evidence considering that the persons who issued them were not
presented as witnesses.[35] Any evidence, whether oral or documentary, is
hearsay if its probative value is not based on the personal knowledge of the
witness but on the knowledge of another person who is not on the witness
stand. Hearsay evidence, whether objected to or not, has no probative value
unless the proponent can show that the evidence falls within the exceptions
to the hearsay evidence rule.[36] On this point, we believe that the exhibits
do not fall under any of the exceptions provided under Sections 37 to 47 of
Rule 130.[37]

In this case, actual damages were proven through the sole testimony of
private respondents general manager and certain pieces of documentary
evidence. Except for Exhibit B where the value of the 1,050 baeras of fish
were pegged at their September 1977 value when the collision happened, the
pieces of documentary evidence proffered by private respondent with respect
to items and equipment lost show similar items and equipment with
corresponding prices in early 1987 or approximately ten (10) years after the

It is true that one of the exceptions to the hearsay rule pertains to

commercial lists and the like under Section 45, Rule 130 of the Revised Rules
on Evidence. In this respect, the Court of Appeals considered private
respondents exhibits as commercial lists. It added, however, that these
exhibits should be admitted in evidence until such time as the Supreme Court
categorically rules on the admissibility or inadmissibility of this class of
evidence because the reception of these documentary exhibits (price

quotations) as evidence rests on the sound discretion of the trial court.

[38] Reference to Section 45, Rule 130, however, would show that the
conclusion of the Court of Appeals on the matter was arbitrarily arrived
at. This rule states:

per attached sheet.

Commercial lists and the like. Evidence of statements of matters of interest

to persons engaged in an occupation contained in a list, register, periodical,
or other published compilation is admissible as tending to prove the truth of
any relevant matter so stated if that compilation is published for use by
persons engaged in that occupation and is generally used and relied upon by
them there.

vvvvvvvvv

Under Section 45 of the aforesaid Rule, a document is a commercial list

if: (1) it is a statement of matters of interest to persons engaged in an
occupation; (2) such statement is contained in a list, register, periodical or
other published compilation; (3) said compilation is published for the use of
persons engaged in that occupation, and (4) it is generally used and relied
upon by persons in the same occupation.
Based on the above requisites, it is our considered view that Exhibits B,
C, D, E, F and H[39] are not commercial lists for these do not belong to the
category
of
other
published
compilations
under
Section
45
aforequoted. Under the principle of ejusdem generis, (w)here general words
follow an enumeration of persons or things, by words of a particular and
specific meaning, such general words are not to be construed in their widest
extent, but are to be held as applying only to persons or things of the same
kind or class as those specifically mentioned.[40] The exhibits mentioned are
mere price quotations issued personally to Del Rosario who requested for
them from dealers of equipment similar to the ones lost at the collision of the
two vessels. These are not published in any list, register, periodical or other
compilation on the relevant subject matter. Neither are these market reports
or quotations within the purview of commercial lists as these are not
standard handbooks or periodicals, containing data of everyday professional
need and relied upon in the work of the occupation.[41] These are simply
letters responding to the queries of Del Rosario. Thus, take for example
Exhibit D which reads:
January 20, 1987
PROFORMA INVOICE NO. PSPI-05/87-NAV
MARIA EFIGINIA FISHING CORPORATION
Navotas, Metro Manila
Attention: MR. EDDIE DEL ROSARIO
Gentlemen:
In accordance to your request, we are pleased to quote our Cummins Marine
Engine, to wit.
Two (2) units CUMMINS Marine Engine model N855-M, 195 bhp.
at 1800 rpm., 6-cylinder in-line, 4-stroke cycle, natural aspirated, 5 in. x 6 in.
bore and stroke, 855 cu. In. displacement, keel-cooled, electric starting
coupled with Twin-Disc Marine gearbox model MG-509, 4.5:1 reduction ratio,
includes oil cooler, companion flange, manual and standard accessories as

Price FOB Manila - - - - - - - - - - - - - - - P 580,000.00/unit

Total FOB Manila - - - - - - - - - - - - - - - P 1,160,000.00

T E R M S : CASH
DELIVERY : 60-90 days from date of order.
VALIDITY : Subject to our final confirmation.
WARRANTY : One (1) full year against factory defect.
Very truly yours,
POWER SYSTEMS, INC.
(Sgd.)
E. D. Daclan
To be sure, letters and telegrams are admissible in evidence but these
are, however, subject to the general principles of evidence and to various
rules relating to documentary evidence.[42] Hence, in one case, it was held
that a letter from an automobile dealer offering an allowance for an
automobile upon purchase of a new automobile after repairs had been
completed, was not a price current or commercial list within the statute
which made such items presumptive evidence of the value of the article
specified therein. The letter was not admissible in evidence as a commercial
list even though the clerk of the dealer testified that he had written the letter
in due course of business upon instructions of the dealer.[43]
But even on the theory that the Court of Appeals correctly ruled on
the admissibility of those letters or communications when it held that
unless plainly irrelevant, immaterial or incompetent, evidence should better
be admitted rather than rejected on doubtful or technical grounds,[44] the
same pieces of evidence, however, should not have been given probative
weight. This is a distinction we wish to point out. Admissibility of evidence
refers to the question of whether or not the circumstance (or evidence) is to
considered at all.[45] On the other hand, the probative value of evidence
refers to the question of whether or not it proves an issue.[46] Thus, a letter
may be offered in evidence and admitted as such but its evidentiary weight
depends upon the observance of the rules on evidence. Accordingly, the
author of the letter should be presented as witness to provide the other party
to the litigation the opportunity to question him on the contents of the
letter. Being mere hearsay evidence, failure to present the author of the
letter renders its contents suspect. As earlier stated, hearsay evidence,
whether objected to or not, has no probative value. Thus:
The courts differ as to the weight to be given to hearsay evidence admitted
without objection. Some hold that when hearsay has been admitted without
objection, the same may be considered as any other properly admitted
testimony.Others maintain that it is entitled to no more consideration than if
it had been excluded.
The rule prevailing in this jurisdiction is the latter one. Our Supreme Court

held that although the question of admissibility of evidence can not be raised
for the first time on appeal, yet if the evidence is hearsay it has no probative
value and should be disregarded whether objected to or not. `If no objection
is made quoting Jones on Evidence - `it (hearsay) becomes evidence by
reason of the want of such objection even though its admission does not
confer upon it any new attribute in point of weight. Its nature and quality
remain the same, so far as its intrinsic weakness and incompetency to satisfy
the mind are concerned, and as opposed to direct primary evidence, the
latter always prevails.
The failure of the defense counsel to object to the presentation of
incompetent evidence, like hearsay evidence or evidence that violates the
rules 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. But admissibility of
evidence should not be equated with weight of evidence. Hearsay evidence
whether objected to or not has no probative value.[47]
Accordingly, as stated at the outset, damages may not be awarded on the
basis of hearsay evidence.[48]
Nonetheless, the non-admissibility of said exhibits does not mean that it
totally deprives private respondent of any redress for the loss of its
vessel. This is because in Lufthansa German Airlines v. Court of
Appeals,[49] the Court said:
In the absence of competent proof on the actual damage suffered, private
respondent is `entitled to nominal damages which, as the law says, is
adjudicated in order that a right of the plaintiff, which has been violated or
invaded by defendant, may be vindicated and recognized, and not for the
purpose of indemnifying the plaintiff for any loss suffered. [Underscoring
supplied].
Nominal damages are awarded in every obligation arising from law,
contracts, quasi-contracts, acts or omissions punished by law, and quasidelicts, or in every case where property right has been invaded.[50] Under
Article 2223 of the Civil Code, (t)he adjudication of nominal damages shall
preclude further contest upon the right involved and all accessory questions,
as between the parties to the suit, or their respective heirs and assigns.
Actually, nominal damages are damages in name only and not in
fact. Where these are allowed, they are not treated as an equivalent of a
wrong inflicted but simply in recognition of the existence of a technical injury.
[51] However, the amount to be awarded as nominal damages shall be equal
or at least commensurate to the injury sustained by private respondent
considering the concept and purpose of such damages.[52] The amount of
nominal damages to be awarded may also depend on certain special reasons
extant in the case.[53]
Applying now such principles to the instant case, we have on record the
fact that petitioners vessel Petroparcel was at fault as well as private
respondents complaint claiming the amount of P692,680.00 representing the
fishing nets, boat equipment and cargoes that sunk with the M/V Maria
Efigenia XV. In its amended complaint, private respondent alleged that the

vessel had an actual value of P800,000.00 but it had been paid insurance in
the amount of P200,000.00 and, therefore, it claimed only the amount
of P600,000.00. Ordinarily, the receipt of insurance payments should diminish
the total value of the vessel quoted by private respondent in his complaint
considering that such payment is causally related to the loss for which it
claimed compensation. This Court believes that such allegations in the
original and amended complaints can be the basis for determination of a fair
amount of nominal damages inasmuch as a complaint alleges the ultimate
facts constituting the plaintiff's cause of action.[54] Private respondent
should be bound by its allegations on the amount of its claims.
With respect to petitioners contention that the lower court did not
acquire jurisdiction over the amended complaint increasing the amount of
damages claimed to P600,000.00, we agree with the Court of Appeals that
the lower court acquired jurisdiction over the case when private respondent
paid the docket fee corresponding to its claim in its original complaint. Its
failure to pay the docket fee corresponding to its increased claim for
damages under the amended complaint should not be considered as having
curtailed the lower courts jurisdiction. Pursuant to the ruling in Sun
Insurance Office, Ltd. (SIOL) v. Asuncion,[55] the unpaid docket fee
should be considered as a lien on the judgment even though private
respondent specified the amount of P600,000.00 as its claim for damages in
its amended complaint.
Moreover, we note that petitioner did not question at all the jurisdiction
of the lower court on the ground of insufficient docket fees in its answers to
both the amended complaint and the second amended complaint. It did so
only in its motion for reconsideration of the decision of the lower court after it
had received an adverse decision. As this Court held in Pantranco North
Express, Inc. v. Court of Appeals,[56] participation in all stages of the
case before the trial court, that included invoking its authority in asking for
affirmative relief, effectively barred petitioner by estoppel from challenging
the courts jurisdiction. Notably, from the time it filed its answer to the second
amended complaint on April 16, 1985,[57] petitioner did not question the
lower courts jurisdiction. It was only on December 29, 1989[58] when it filed
its motion for reconsideration of the lower courts decision that petitioner
raised the question of the lower courts lack of jurisdiction. Petitioner thus
foreclosed its right to raise the issue of jurisdiction by its own inaction.
WHEREFORE, the challenged decision of the Court of Appeals dated
October 14, 1992 in CA-G. R. CV No. 26680 affirming that of the Regional Trial
Court of Caloocan City, Branch 121, is hereby MODIFIED insofar as it awarded
actual damages to private respondent Maria Efigenia Fishing Corporation in
the
amount
of P6,438,048.00
for
lack
of
evidentiary
bases
therefor. Considering the fact, however, that: (1) technically petitioner
sustained injury but which, unfortunately, was not adequately and properly
proved, and (2) this case has dragged on for almost two decades, we believe
that an award of Two Million (P2,000,000.00)[59] in favor of private
respondent as and for nominal damages is in order.
No pronouncement as to costs.
SO ORDERED.

G.R. No. L-22793

reason of the dismissal with prejudice of Civil Case 26909 of the Court of First
Instance of Manila; and that, even on the merits, plaintiffs [the present
petitioners] have not made out their case with sufficient evidence," and
dismissed the complaint, without costs.

May 16, 1967

CARMELITA
TAN
and
RODOLFO
TAN, petitioners,
vs.
COURT OF APPEALS and FRANCISCO TAN (alias Tan Uh Bak and Tan
Seng Ka), respondents.
Amando
Asis
for
Taada, Teehankee and Carreon for respondents.

petitioners.

SANCHEZ, J.:
The present is a suit aimed at establishing a children-to-father, illegitimate
relationship between petitioners and the principal respondent Francisco Tan,
and to compel the latter to support petitioners.
The background facts follow:
On July 22, 1955, petitioners, thru their mother Celestina Daldo as
guardian ad litem, sued respondent Tan in the Court of First Instance of
Manila for acknowledgment and support (Civil Case 26909). 1wph1.t
On March 26, 1956, Celestina Daldo after petitioners had already
presented oral and documentary evidence and were about to rest their case
moved to dismiss the foregoing civil case upon the ground that the parties
had come to an amicable settlement, and prayed that the same be dismissed
with prejudice and without recourse of appeal.
On the same day, March 26, 1956, Celestina Daldo subscribed before the
clerk of the Court of First Instance of Manila to an affidavit categorically
stating that respondent Francisco Tan, defendant in Civil Case 26909, "is not
the father of my said minor children named Carmelita and Rodolfo (herein
petitioners) but another person whose name I cannot divulge"; and that she
prepared said affidavit precisely "to record what is true and to correct what
misinterpretation may arise in the future".

On October 8, 1960, petitioners herein, plaintiffs below, moved to reconsider.

On January 31, 1961, then Judge Natividad Almeda Lopez reconsidered the
decision of Judge Enriquez of September 10, 1960, and rendered
judgment, viz:
In view of the foregoing considerations, this Court reconsider its
decision of September 10, 1960, and declares the minors Carmelita
and Rodolfo Tan to be the illegitimate children of the defendant
Francisco Tan alias Tan Uh Bak and Tang Seng Ka; and hereby orders
the defendant to support said minors in the amount of P200.00 a
month, said amount to be paid within the first five (5) days of each
month directly to Carmelita Tan, for herself and for her younger
brother Rodolfo; and to help them defray their matriculation
expenses, to pay semi-annually, on June and November of such year,
an additional sum of P300; to reimburse Servillano Daldo his
expenses in supporting plaintiff minors during the pendency of this
case in the amount of P2,000, or at the rate of P50 a month from
November 25, 1957; to pay plaintiff minors' attorney's fees of P500;
and to pay the costs of this proceedings.
Respondent Francisco Tan appealed to the Court of Appeals.
On February 21, 1964, the Court of Appeals in turn reversed the last-named
judgment of Judge Natividad Almeda Lopez, and dismissed the complaint with
costs against appellees in both instances.
Petitioners now come to this Court in forma pauperis on appeal by way
of certiorari.
1. Threshold question is the admissibility of Exhibits H and I, testimony of
petitioners' witnesses in the former case. Petitioners balk at the ruling
denying admissibility.

On March 26, 1956, the Court of First Instance of Manila issued the following
order:

The controlling statute is Section 37, Rule 123 of the 1940 Rules of Court,
now Section 41, Rule 130, viz:

As prayed for by plaintiffs in their motion filed today for the dismissal
of their complaint, on the ground that the parties have already come
to an amicable settlement, with the conformity of counsel for
defendant, the Court hereby orders this case dismissed with prejudice
and without pronouncement as to costs.

SEC. 41. Testimony at a former trial. The testimony of a witness

deceased or out of the Philippines, or unable to testify, given in a
former case between the same parties, relating to the same matter,
the adverse party having had an opportunity to cross-examine him,
may be given in evidence.

On November 25, 1957 one year and eight months after Civil Case 26909
was dismissed petitioners, this time thru their maternal grandfather
Servillano Daldo as guardian ad litem, commenced the present action before
the Juvenile & Domestic Relations Court (Civil Case 00855) for
acknowledgment and support, involving the same parties, cause of action
and subject matter.

Concededly, the witnesses at the former trial were subpoenaed by the

Juvenile & Domestic Relations Court a number of times. These witnesses did
not appear to testify.

On September 10, 1960, then Judge Juan P. Enriquez (Judge of the Court of
First Instance of Manila detailed to preside over the Juvenile & Domestic
Relations Court in the absence of the presiding Judge thereof who was on
leave rendered judgment declaring that "the present case is res judicata by

But are their testimonies in the former trial within the coverage of the rule of
admissibility set forth in Section 41, Rule 130? These witnesses are not dead.
They are not outside of the Philippines. Can they be categorized as witnesses
of the class unable to testify? The Court of Appeals, construing this term, held
that "subsequent failure or refusal to appear thereat [second trial] or hostility
since testifying at the first trial does not amount to inability to testify, but
such inability proceeding from a grave cause, almost amounting to death, as

when the witness is old and has lost the power of speech. (Griffith vs. Sauls,
77 Tex 630, 14 S.W. 230, 231; section 37 of Rule 123, Rules of Court)."

and its far-reaching consequences. As aptly expressed in the case

of Serrano v. Aragon, (22 Phil. 10),

Here, the witnesses in question were available. Only, they refused to testify.
No other person that prevented them from testifying, is cited. Certainly, they
do not come within the legal purview of those unable to testify.

"Public policy, indeed public necessity, demands that before an

illegitimate child be admitted into a legitimate family, every requisite
of the law be completely and fully complied with. No one should ever
be permitted upon doubtful evidence to take from legitimate children
the property which they and their parents have, by industry, fidelity,
and frugality, acquired. ..."

Besides in the situation here presented, petitioners are not at all bereft of
remedy. They could have urged the court to have said witnesses arrested,
punished for contempt.1 After all, these remedies are in the statute books to
help litigants in the prosecution of their cases. Petitioners failed to avail of
these remedies, went ahead and submitted their case.
We note petitioners' argument that to follow strictly the law of admissibility of
testimony in former trials, is to permit party litigants to buy witnesses to
dissuade them from testifying again. Nothing extant in the record will as
much as intimate that respondent was responsible for the non-appearance of
these witnesses. The danger of tampering with witnesses is a problem that
attends trials in many a time and in number of imaginable situations. And,
petitioners argument works both ways. Because, witnesses at the former trial
can be bought not to testify at the second trial, in just the same way that
they could have been bought to give their original testimony. Solution of this
problem lies elsewhere, not in the non-enforcement of Section 41, Rule 130 of
the Rules of Court.
2. The procedural problem out of the way, we go direct to the merits.
Petitioners tried to prove that Celestina Daldo and respondent Francisco
Tan lived together as husband and wife for more than eight years
commencing from 1936 to 1944. Petitioners Carmelita Tan and Rodolfo Tan
are allegedly the fruits of such cohabitation. Respondent stoutly denies this
claim, avers that he is very much a married man with children. Celestina
Daldo, by her own admission, had been a nursemaid (yaya) in respondent's
residence but for l short period of not less than one year in 1939. Carmelita
was born on May 8, 1942 and Rodolfo, on September 11, 1944. The validity of
the testimony of petitioners' witnesses in the present case was considerably
downgraded by the affidavit of Celestina Daldo, heretofore adverted to,
attached to the record of the former Case 26909. In that affidavit, Celestina
deposed that petitioners were not fathered by Francisco Tan, but, in
Celestina's own words, by "another person whose name I cannot divulge."
Striking is the fact that this affidavit was executed after petitioners in the
former case had finished with their oral and documentary evidence and were
about to submit their case. By then, their counsel had a grasp of the
situation. Petitioners and their guardian ad litem could have known whether
they had reasonably made out a case against respondent.
Correctly then did the Court of Appeals rule out the probative value of
petitioners' evidence and found for respondent. On this point the Court of
Appeals said:
... we now come to the resolution of the second point; i.e., whether or
not the plaintiffs have sufficiently proved their case. We have gone
over and examined thoroughly the arguments and evidence of the
parties, and we find that the evidence for the plaintiffs-appellees fall
short of the requirement of clear strong and convincing evidence.
Such evidence is necessary whether to prove legitimate or illigitimate
paternity and filiation, considering the seriousness of the relationship

We agree with the findings of the trial court in its original correctly
appreciating the evidence of the plaintiffs as unsatisfactory and
insufficient, in view of the following considerations;
(1) That Exhibits H and I, former testimonies of witnesses in Civil Case
No. 26909, are inadmissible. ...
(2) That the baptismal certificates, Exhs. A and C are not admissible
proofs of filiation (Malonda vs. Malonda, 45 O.G. 5468; Pareja vs.
Pareja, G.R. L-3824, prom. May 31, 1954; Capistrano vs. Gabino, 8
Phil. 135; Adriano vs. De Jesus, 23 Phil. 350; Madridejo vs. Leon, 55
Phil. 1) The birth certificate Exhibit B is likewise inadmissible against
the defendant because it failed to comply with Section 5 of Act 3753.
The alleged illegitimate father did not sign under oath the said birth
certificate (Roces vs. Local Civil Registrar of Manila, G.R. L-10598,
prom. February 14, 1958; Crisolo vs. Macadaeg, G.R. L-7017 prom.
April 29, 1954).
It should be noted that said baptismal certificates are also useless to
prove the dates of birth of the appellees-minors, considering that the
period of cohabitation or any intimate relations at all between their
mother and the appellant has been denied and that same has not
been satisfactorily proved. Stated in another way, the date of birth as
appearing in the birth certificate would be material only if it coincides
with the period of cohabitation as admitted or sufficiently proved. To
reason otherwise would be to put the cart before the horse, so to
speak.
(3) The oral evidence for the plaintiffs, consisting principally of the
testimonies of the grandfather and of the mother of the minors, are
unsatisfactory, being inconsistent and contradictory on material
points, and unbelievable. The loose character of the mother of the
minors who admittedly had lived and begotten children with several
men of different nationalities, cannot also be overlooked. Weighed
against each other, the evidence for the plaintiffs do not tip the
scales in their favor as against the defendant-appellant. We are not
convinced, by preponderance of evidence, that appellant is the father
of the minor appellees. ...
Section 2, Rule 45 of the Rules of Court, formerly Section 2, Rule 46 of the
1940 Rules, employs the commanding language that "[o]nly questions of law
may be raised" in an appeal by certiorari from a judgment of the Court of
Appeals. That judgment, jurisprudence teaches, is conclusive as to the facts.
We are not to alter said facts they bind us, or to review the questions of
fact.2
Having reached the conclusion that, on the merits, petitioners made no case,
it is unnecessary for us to pass upon the other questions raised on appeal.

For the reasons given, we vote to affirm the judgment of the Court of Appeals
under review. No costs in all instances. So ordered.

2. The identity of the drivers and the fact that they are duly licensed;
3. The date and place of the vehicular collision;
4. The extent of the injuries suffered by plaintiff Modesto Calaunan
and the existence of the medical certificate;

G.R. No. 150157

January 25, 2007

MAURICIO
MANLICLIC
and PHILIPPINE
INC., Petitioners,
vs.
MODESTO CALAUNAN, Respondent.

RABBIT

BUS

LINES,

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

5. That both vehicles were going towards the south; the private jeep
being ahead of the bus;
6. That the weather was fair and the road was well paved and
straight, although there was a ditch on the right side where the jeep
fell into.3
When the civil case was heard, counsel for respondent prayed that the
transcripts of stenographic notes (TSNs) 4of the testimonies of respondent
Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case be
received in evidence in the civil case in as much as these witnesses are not
available to testify in the civil case.
Francisco Tuliao testified that his brother-in-law, respondent Calaunan, left for
abroad sometime in November, 1989 and has not returned since then.
Rogelio Ramos took the stand and said that his brother, Fernando Ramos, left
for Amman, Jordan, to work. Rosalia Mendoza testified that her husband,
Marcelo Mendoza, left their residence to look for a job. She narrated that she
thought her husband went to his hometown in Panique, Tarlac, when he did
not return after one month. She went to her husbands hometown to look for
him but she was informed that he did not go there.1awphil.net
The trial court subpoenaed the Clerk of Court of Branch 8, RTC, Malolos,
Bulacan, the court where Criminal Case No. 684-M-89 was tried, to bring the
TSNs of the testimonies of respondent Calaunan, 5 Marcelo Mendoza6 and
Fernando Ramos7 in said case, together with other documentary evidence
marked therein. Instead of the Branch Clerk of Court, it was Enrique Santos
Guevara, Court Interpreter, who appeared before the court and identified the
TSNs of the three afore-named witnesses and other pertinent documents he
had brought.8 Counsel for respondent wanted to mark other TSNs and
documents from the said criminal case to be adopted in the instant case, but
since the same were not brought to the trial court, counsel for petitioners
compromised that said TSNs and documents could be offered by counsel for
respondent as rebuttal evidence.
For the defendants, petitioner Manliclic and bus conductor Oscar Buan
testified. The TSN9 of the testimony of Donato Ganiban, investigator of the
PRBLI, in Criminal Case No. 684-M-89 was marked and allowed to be adopted
in the civil case on the ground that he was already dead.
Respondent further marked, among other documents, as rebuttal evidence,
the TSNs10 of the testimonies of Donato Ganiban, Oscar Buan and petitioner
Manliclic in Criminal Case No. 684-M-89.
The disagreement arises from the question: Who is to be held liable for the
collision?
Respondent insists it was petitioner Manliclic who should be liable while the
latter is resolute in saying it was the former who caused the smash up.

The versions of the parties are summarized by the trial court as follows:
The parties differed only on the manner the collision between the two (2)
vehicles took place. According to the plaintiff and his driver, the jeep was
cruising at the speed of 60 to 70 kilometers per hour on the slow lane of the
expressway when the Philippine Rabbit Bus overtook the jeep and in the
process of overtaking the jeep, the Philippine Rabbit Bus hit the rear of the
jeep on the left side. At the time the Philippine Rabbit Bus hit the jeep, it was
about to overtake the jeep. In other words, the Philippine Rabbit Bus was still
at the back of the jeep when the jeep was hit. Fernando Ramos corroborated
the testimony of the plaintiff and Marcelo Mendoza. He said that he was on
another jeep following the Philippine Rabbit Bus and the jeep of plaintiff when
the incident took place. He said, the jeep of the plaintiff overtook them and
the said jeep of the plaintiff was followed by the Philippine Rabbit Bus which
was running very fast. The bus also overtook the jeep in which he was riding.
After that, he heard a loud sound. He saw the jeep of the plaintiff swerved to
the right on a grassy portion of the road. The Philippine Rabbit Bus stopped
and they overtook the Philippine Rabbit Bus so that it could not moved (sic),
meaning they stopped in front of the Philippine Rabbit Bus. He testified that
the jeep of plaintiff swerved to the right because it was bumped by the
Philippine Rabbit bus from behind.
Both Mauricio Manliclic and his driver, Oscar Buan admitted that the
Philippine Rabbit Bus bumped the jeep in question. However, they explained
that when the Philippine Rabbit bus was about to go to the left lane to
overtake the jeep, the latter jeep swerved to the left because it was to
overtake another jeep in front of it. Such was their testimony before the RTC
in Malolos in the criminal case and before this Court in the instant case.
[Thus, which of the two versions of the manner how the collision took place
was correct, would be determinative of who between the two drivers was
negligent in the operation of their respective vehicles.]11
Petitioner PRBLI maintained that it observed and exercised the diligence of a
good father of a family in the selection and supervision of its employee,
specifically petitioner Manliclic.
On 22 July 1996, the trial court rendered its decision in favor of respondent
Calaunan and against petitioners Manliclic and PRBLI. The dispositive portion
of its decision reads:

I
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN
AFFIRMING THE TRIAL COURTS QUESTIONABLE ADMISSION IN
EVIDENCE OF THE TSNs AND OTHER DOCUMENTS PRESENTED
IN THE CRIMINAL CASE.
II
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN
AFFIRMING THE TRIAL COURTS RELIANCE ON THE VERSION OF
THE RESPONDENT ON HOW THE ACCIDENT SUPPOSEDLY
OCCURRED.
III
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN
AFFIRMING THE TRIAL COURTS UNFAIR DISREGARD OF HEREIN
PETITIONER PRBLs DEFENSE OF EXERCISE OF DUE DILIGENCE IN
THE SELECTION AND SUPERVISION OF ITS EMPLOYEES.
IV
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN
AFFIRMING THE TRIAL COURTS QUESTIONABLE AWARD OF
DAMAGES AND ATTORNEYS FEE.
With the passing away of respondent Calaunan during the pendency of this
appeal with this Court, we granted the Motion for the Substitution of
Respondent filed by his wife, Mrs. Precila Zarate Vda. De Calaunan, and
children, Virgilio Calaunan, Carmelita Honeycomb, Evelyn Calaunan, Marko
Calaunan and Liwayway Calaunan.15
In their Reply to respondents Comment, petitioners informed this Court of a
Decision16 of the Court of Appeals acquitting petitioner Manliclic of the

WHEREFORE, judgment is rendered in favor of the plaintiff and against the

defendants ordering the said defendants to pay plaintiff jointly and solidarily
the amount of P40,838.00 as actual damages for the towing as well as the
repair and the materials used for the repair of the jeep in
question; P100,000.00 as moral damages and another P100,000.00 as
exemplary damages and P15,000.00 as attorneys fees, including appearance
fees of the lawyer. In addition, the defendants are also to pay costs. 12

charge17 of Reckless Imprudence Resulting in Damage to Property with

Physical Injuries attaching thereto a photocopy thereof.

Petitioners appealed the decision via Notice of Appeal to the Court of

Appeals.13

For Section 47, Rule 13021 to apply, the following requisites must be
satisfied: (a) the witness is dead or unable to testify; (b) his testimony or
deposition was given in a former case or proceeding, judicial or
administrative, between the same parties or those representing the same
interests; (c) the former case involved the same subject as that in the present
case, although on different causes of action; (d) the issue testified to by the
witness in the former trial is the same issue involved in the present case; and
(e) the adverse party had an opportunity to cross-examine the witness in the

In a decision dated 28 September 2001, the Court of Appeals, finding no

reversible error in the decision of the trial court, affirmed it in all respects. 14
Petitioners are now before us by way of petition for review assailing the
decision of the Court of Appeals. They assign as errors the following:

On the first assigned error, petitioners argue that the TSNs containing the
testimonies of respondent Calaunan,18Marcelo Mendoza19 and Fernando
Ramos20 should not be admitted in evidence for failure of respondent to
comply with the requisites of Section 47, Rule 130 of the Rules of Court.

former case.22
Admittedly, respondent failed to show the concurrence of all the requisites
set forth by the Rules for a testimony given in a former case or proceeding to
be admissible as an exception to the hearsay rule. Petitioner PRBLI, not being
a party in Criminal Case No. 684-M-89, had no opportunity to cross-examine
the three witnesses in said case. The criminal case was filed exclusively
against petitioner Manliclic, petitioner PRBLIs employee. The cases dealing
with the subsidiary liability of employers uniformly declare that, strictly
speaking, they are not parties to the criminal cases instituted against their
employees.23
Notwithstanding the fact that petitioner PRBLI was not a party in said criminal
case, the testimonies of the three witnesses are still admissible on the
ground that petitioner PRBLI failed to object on their admissibility.
It is elementary that an objection shall be made at the time when an alleged
inadmissible document is offered in evidence; otherwise, the objection shall
be treated as waived, since the right to object is merely a privilege which the
party may waive. Thus, a failure to except to the evidence because it does
not conform to the statute is a waiver of the provisions of the law. Even
assuming ex gratia argumenti that these documents are inadmissible for
being hearsay, but on account of failure to object thereto, the same may be
admitted and considered as sufficient to prove the facts therein
asserted.24 Hearsay evidence alone may be insufficient to establish a fact in
a suit but, when no objection is made thereto, it is, like any other evidence, to
be considered and given the importance it deserves. 25
In the case at bar, petitioner PRBLI did not object to the TSNs containing the
testimonies of respondent Calaunan, Marcelo Mendoza and Fernando Ramos
in the criminal case when the same were offered in evidence in the trial
court. In fact, the TSNs of the testimonies of Calaunan and Mendoza were
admitted by both petitioners. 26Moreover, petitioner PRBLI even offered in
evidence the TSN containing the testimony of Donato Ganiban in the criminal
case. If petitioner PRBLI argues that the TSNs of the testimonies of plaintiffs
witnesses in the criminal case should not be admitted in the instant case,
why then did it offer the TSN of the testimony of Ganiban which was given in
the criminal case? It appears that petitioner PRBLI wants to have its cake and
eat it too. It cannot argue that the TSNs of the testimonies of the witnesses of
the adverse party in the criminal case should not be admitted and at the
same time insist that the TSN of the testimony of the witness for the accused
be admitted in its favor. To disallow admission in evidence of the TSNs of the
testimonies of Calaunan, Marcelo Mendoza and Fernando Ramos in the
criminal case and to admit the TSN of the testimony of Ganiban would be
unfair.
We do not subscribe to petitioner PRBLIs argument that it will be denied due
process when the TSNs of the testimonies of Calaunan, Marcelo Mendoza and
Fernando Ramos in the criminal case are to be admitted in the civil case. It is
too late for petitioner PRBLI to raise denial of due process in relation to
Section 47, Rule 130 of the Rules of Court, as a ground for objecting to the
admissibility of the TSNs. For failure to object at the proper time, it waived its
right to object that the TSNs did not comply with Section 47.
In Mangio v. Court of Appeals,27 this Court, through Associate Justice

Reynato S. Puno,28 admitted in evidence a TSN of the testimony of a witness

in another case despite therein petitioners assertion that he would be denied
due process. In admitting the TSN, the Court ruled that the raising of denial of
due process in relation to Section 47, Rule 130 of the Rules of Court, as a
ground for objecting to the admissibility of the TSN was belatedly done. In so
doing, therein petitioner waived his right to object based on said ground.
Petitioners contend that the documents in the criminal case should not have
been admitted in the instant civil case because Section 47 of Rule 130 refers
only to "testimony or deposition." We find such contention to be untenable.
Though said section speaks only of testimony and deposition, it does not
mean that documents from a former case or proceeding cannot be admitted.
Said documents can be admitted they being part of the testimonies of
witnesses that have been admitted. Accordingly, they shall be given the
same weight as that to which the testimony may be entitled. 29
On the second assigned error, petitioners contend that the version of
petitioner Manliclic as to how the accident occurred is more credible than
respondents version. They anchor their contention on the fact that petitioner
Manliclic was acquitted by the Court of Appeals of the charge of Reckless
Imprudence Resulting in Damage to Property with Physical Injuries.
To be resolved by the Court is the effect of petitioner Manliclics acquittal in
the civil case.
From the complaint, it can be gathered that the civil case for damages was
one arising from, or based on, quasi-delict. 30 Petitioner Manliclic was sued
for his negligence or reckless imprudence in causing the collision, while
petitioner PRBLI was sued for its failure to exercise the diligence of a good
father in the selection and supervision of its employees, particularly
petitioner Manliclic. The allegations read:
"4. That sometime on July 12, 1988 at around 6:20 A.M. plaintiff was
on board the above-described motor vehicle travelling at a moderate
speed along the North Luzon Expressway heading South towards
Manila together with MARCELO MENDOZA, who was then driving the
same;
"5. That approximately at kilometer 40 of the North Luzon Express
Way, the above-described motor vehicle was suddenly bumped from
behind by a Philippine Rabbit Bus with Body No. 353 and with plate
No. CVD 478 then being driven by one Mauricio Manliclic of San Jose,
Concepcion, Tarlac, who was then travelling recklessly at a very fast
speed and had apparently lost control of his vehicle;
"6. That as a result of the impact of the collision the above-described
motor vehicle was forced off the North Luzon Express Way towards
the rightside where it fell on its drivers side on a ditch, and that as a
consequence, the above-described motor vehicle which maybe
valued at EIGHTY THOUSAND PESOS (P80,000) was rendered a total
wreck as shown by pictures to be presented during the pre-trial and
trial of this case;
"7. That also as a result of said incident, plaintiff sustained bodily
injuries which compounded plaintiffs frail physical condition and
required his hospitalization from July 12, 1988 up to and until July 22,
1988, copy of the medical certificate is hereto attached as Annex "A"

and made an integral part hereof;

"8. That the vehicular collision resulting in the total wreckage of the
above-described motor vehicle as well as bodily (sic) sustained by
plaintiff, was solely due to the reckless imprudence of the defendant
driver Mauricio Manliclic who drove his Philippine Rabbit Bus No. 353
at a fast speed without due regard or observance of existing traffic
rules and regulations;
"9. That defendant Philippine Rabbit Bus Line Corporation failed to
exercise the diligence of a good father of (sic) family in the selection
and supervision of its drivers; x x x"31
Can Manliclic still be held liable for the collision and be found negligent
notwithstanding the declaration of the Court of Appeals that there was an
absence of negligence on his part?
In exonerating petitioner Manliclic in the criminal case, the Court of Appeals
said:
To the following findings of the court a quo, to wit: that accused-appellant
was negligent "when the bus he was driving bumped the jeep from behind";
that "the proximate cause of the accident was his having driven the bus at a
great speed while closely following the jeep"; x x x
We do not agree.
The swerving of Calaunans jeep when it tried to overtake the vehicle in front
of it was beyond the control of accused-appellant.
xxxx
Absent evidence of negligence, therefore, accused-appellant cannot be held
liable for Reckless Imprudence Resulting in Damage to Property with Physical
Injuries as defined in Article 365 of the Revised Penal Code. 32
From the foregoing declaration of the Court of Appeals, it appears that
petitioner Manliclic was acquitted not on reasonable doubt, but on the ground
that he is not the author of the act complained of which is based on Section
2(b) of Rule 111 of the Rules of Criminal Procedure which reads:
(b) Extinction of the penal action does not carry with it extinction of the civil,
unless the extinction proceeds from a declaration in a final judgment that the
fact from which the civil might arise did not exist.
In spite of said ruling, petitioner Manliclic can still be held liable for the
mishap. The afore-quoted section applies only to a civil action arising from
crime or ex delicto and not to a civil action arising from quasi-delict or culpa
aquiliana. The extinction of civil liability referred to in Par. (e) of Section 3,
Rule 111 [now Section 2 (b) of Rule 111], refers exclusively to civil liability
founded on Article 100 of the Revised Penal Code, whereas the civil liability
for the same act considered as a quasi-delict only and not as a crime is not
extinguished even by a declaration in the criminal case that the criminal act
charged has not happened or has not been committed by the accused. 33
A quasi-delict or culpa aquiliana is a separate legal institution under the Civil
Code with a substantivity all its own, and individuality that is entirely apart
and independent from a delict or crime a distinction exists between the civil
liability arising from a crime and the responsibility for quasi-delicts or culpa

extra-contractual. The same negligence causing damages may produce civil

liability arising from a crime under the Penal Code, or create an action for
quasi-delicts or culpa extra-contractual under the Civil Code. 34 It is now
settled that acquittal of the accused, even if based on a finding that he is not
guilty, does not carry with it the extinction of the civil liability based on quasi
delict.35
In other words, if an accused is acquitted based on reasonable doubt on his
guilt, his civil liability arising from the crime may be proved by
preponderance of evidence only. However, if an accused is acquitted on the
basis that he was not the author of the act or omission complained of (or that
there is declaration in a final judgment that the fact from which the civil
might arise did not exist), said acquittal closes the door to civil liability based
on the crime or ex delicto. In this second instance, there being no crime or
delict to speak of, civil liability based thereon or ex delicto is not possible. In
this case, a civil action, if any, may be instituted on grounds other than the
delict complained of.
As regards civil liability arising from quasi-delict or culpa aquiliana, same will
not be extinguished by an acquittal, whether it be on ground of reasonable
doubt or that accused was not the author of the act or omission complained
of (or that there is declaration in a final judgment that the fact from which the
civil liability might arise did not exist). The responsibility arising from fault or
negligence in a quasi-delict is entirely separate and distinct from the civil
liability arising from negligence under the Penal Code. 36 An acquittal or
conviction in the criminal case is entirely irrelevant in the civil case 37 based
on quasi-delict or culpa aquiliana.
Petitioners ask us to give credence to their version of how the collision
occurred and to disregard that of respondents. Petitioners insist that while
the PRBLI bus was in the process of overtaking respondents jeep, the latter,
without warning, suddenly swerved to the left (fast) lane in order to overtake
another jeep ahead of it, thus causing the collision.
As a general rule, questions of fact may not be raised in a petition for review.
The factual findings of the trial court, especially when affirmed by the
appellate court, are binding and conclusive on the Supreme Court. 38 Not
being a trier of facts, this Court will not allow a review thereof unless:
(1) the conclusion is a finding grounded entirely on speculation, surmise and
conjecture; (2) the inference made is manifestly mistaken; (3) there is grave
abuse of discretion; (4) the judgment is based on a misapprehension of facts;
(5) the findings of fact are conflicting; (6) the Court of Appeals went beyond
the issues of the case and its findings are contrary to the admissions of both
appellant and appellees; (7) the findings of fact of the Court of Appeals are
contrary to those of the trial court; (8) said findings of fact are conclusions
without citation of specific evidence on which they are based; (9) the facts
set forth in the petition as well as in the petitioner's main and reply briefs are
not disputed by the respondents; and (10) the findings of fact of the Court of
Appeals are premised on the supposed absence of evidence and contradicted
by the evidence on record.39
After going over the evidence on record, we do not find any of the exceptions
that would warrant our departure from the general rule. We fully agree in the
finding of the trial court, as affirmed by the Court of Appeals, that it was

petitioner Manliclic who was negligent in driving the PRBLI bus which was the
cause of the collision. In giving credence to the version of the respondent, the
trial court has this say:
x x x Thus, which of the two versions of the manner how the collision took
place was correct, would be determinative of who between the two drivers
was negligent in the operation of their respective vehicle.
In this regard, it should be noted that in the statement of Mauricio Manliclic
(Exh. 15) given to the Philippine Rabbit Investigator CV Cabading no mention
was made by him about the fact that the driver of the jeep was overtaking
another jeep when the collision took place. The allegation that another jeep
was being overtaken by the jeep of Calaunan was testified to by him only in
Crim. Case No. 684-M-89 before the Regional Trial Court in Malolos, Bulacan
and before this Court. Evidently, it was a product of an afterthought on the
part of Mauricio Manliclic so that he could explain why he should not be held
responsible for the incident. His attempt to veer away from the truth was also
apparent when it would be considered that in his statement given to the
Philippine Rabbit Investigator CV Cabading (Exh. 15), he alleged that the
Philippine Rabbit Bus bumped the jeep of Calaunan while the Philippine
Rabbit Bus was behind the said jeep. In his testimony before the Regional
Trial Court in Malolos, Bulacan as well as in this Court, he alleged that the
Philippine Rabbit Bus was already on the left side of the jeep when the
collision took place. For this inconsistency between his statement and
testimony, his explanation regarding the manner of how the collision between
the jeep and the bus took place should be taken with caution. It might be true
that in the statement of Oscar Buan given to the Philippine Rabbit
Investigator CV Cabading, it was mentioned by the former that the jeep of
plaintiff was in the act of overtaking another jeep when the collision between
the latter jeep and the Philippine Rabbit Bus took place. But the fact,
however, that his statement was given on July 15, 1988, one day after
Mauricio Manliclic gave his statement should not escape attention. The oneday difference between the giving of the two statements would be significant
enough to entertain the possibility of Oscar Buan having received legal
advise before giving his statement. Apart from that, as between his
statement and the statement of Manliclic himself, the statement of the latter
should prevail. Besides, in his Affidavit of March 10, 1989, (Exh. 14), the
unreliability of the statement of Oscar Buan (Exh. 13) given to CV Cabading
rear its "ugly head" when he did not mention in said affidavit that the jeep of
Calaunan was trying to overtake another jeep when the collision between the
jeep in question and the Philippine Rabbit bus took place.
xxxx
If one would believe the testimony of the defendant, Mauricio Manliclic, and
his conductor, Oscar Buan, that the Philippine Rabbit Bus was already
somewhat parallel to the jeep when the collision took place, the point of
collision on the jeep should have been somewhat on the left side thereof
rather than on its rear. Furthermore, the jeep should have fallen on the road
itself rather than having been forced off the road. Useless, likewise to
emphasize that the Philippine Rabbit was running very fast as testified to by
Ramos which was not controverted by the defendants.40
Having ruled that it was petitioner Manliclics negligence that caused the
smash up, there arises the juris tantum presumption that the employer is
negligent, rebuttable only by proof of observance of the diligence of a good

father of a family.41 Under Article 218042 of the New Civil Code, when an
injury is caused by the negligence of the employee, there instantly arises a
presumption of law that there was negligence on the part of the master or
employer either in the selection of the servant or employee, or in supervision
over him after selection or both. The liability of the employer under Article
2180 is direct and immediate; it is not conditioned upon prior recourse
against the negligent employee and a prior showing of the insolvency of such
employee. Therefore, it is incumbent upon the private respondents to prove
that they exercised the diligence of a good father of a family in the selection
and supervision of their employee.43
In the case at bar, petitioner PRBLI maintains that it had shown that it
exercised the required diligence in the selection and supervision of its
employees, particularly petitioner Manliclic. In the matter of selection, it
showed the screening process that petitioner Manliclic underwent before he
became a regular driver. As to the exercise of due diligence in the supervision
of its employees, it argues that presence of ready investigators (Ganiban and
Cabading) is sufficient proof that it exercised the required due diligence in the
supervision of its employees.
In the selection of prospective employees, employers are required to examine
them as to their qualifications, experience and service records. In the
supervision of employees, the employer must formulate standard operating
procedures, monitor their implementation and impose disciplinary measures
for the breach thereof. To fend off vicarious liability, employers must submit
concrete proof, including documentary evidence, that they complied with
everything that was incumbent on them.44
In Metro Manila Transit Corporation v. Court of Appeals, 45 it was explained
that:
Due diligence in the supervision of employees on the other hand, includes
the formulation of suitable rules and regulations for the guidance of
employees and the issuance of proper instructions intended for the
protection of the public and persons with whom the employer has relations
through his or its employees and the imposition of necessary disciplinary
measures upon employees in case of breach or as may be warranted to
ensure the performance of acts indispensable to the business of and
beneficial to their employer. To this, we add that actual implementation and
monitoring of consistent compliance with said rules should be the constant
concern of the employer, acting through dependable supervisors who should
regularly report on their supervisory functions.
In order that the defense of due diligence in the selection and supervision of
employees may be deemed sufficient and plausible, it is not enough to
emptily invoke the existence of said company guidelines and policies on
hiring and supervision. As the negligence of the employee gives rise to the
presumption of negligence on the part of the employer, the latter has the
burden of proving that it has been diligent not only in the selection of
employees but also in the actual supervision of their work. The mere
allegation of the existence of hiring procedures and supervisory policies,
without anything more, is decidedly not sufficient to overcome such
presumption.
We emphatically reiterate our holding, as a warning to all employers, that
"the formulation of various company policies on safety without showing that

they were being complied with is not sufficient to exempt petitioner from
liability arising from negligence of its employees. It is incumbent upon
petitioner to show that in recruiting and employing the erring driver the
recruitment procedures and company policies on efficiency and safety were
followed." x x x.

with the MODIFICATION that (1) the award of moral damages shall be reduced
to P50,000.00; and (2) the award of exemplary damages shall be lowered
to P50,000.00. Costs against petitioners.
SO ORDERED.

The trial court found that petitioner PRBLI exercised the diligence of a good
father of a family in the selection but not in the supervision of its employees.
It expounded as follows:
From the evidence of the defendants, it seems that the Philippine Rabbit Bus
Lines has a very good procedure of recruiting its driver as well as in the
maintenance of its vehicles. There is no evidence though that it is as good in
the supervision of its personnel. There has been no iota of evidence
introduced by it that there are rules promulgated by the bus company
regarding the safe operation of its vehicle and in the way its driver should
manage and operate the vehicles assigned to them. There is no showing that
somebody in the bus company has been employed to oversee how its driver
should behave while operating their vehicles without courting incidents
similar to the herein case. In regard to supervision, it is not difficult to
observe that the Philippine Rabbit Bus Lines, Inc. has been negligent as an
employer and it should be made responsible for the acts of its employees,
particularly the driver involved in this case.
We agree. The presence of ready investigators after the occurrence of the
accident is not enough to exempt petitioner PRBLI from liability arising from
the negligence of petitioner Manliclic. Same does not comply with the
guidelines set forth in the cases above-mentioned. The presence of the
investigators after the accident is not enough supervision. Regular
supervision of employees, that is, prior to any accident, should have been
shown and established. This, petitioner failed to do. The lack of supervision
can further be seen by the fact that there is only one set of manual
containing the rules and regulations for all the drivers of PRBLI. 46 How then
can all the drivers of petitioner PRBLI know and be continually informed of
the rules and regulations when only one manual is being lent to all the
drivers?
For failure to adduce proof that it exercised the diligence of a good father of a
family in the selection and supervision of its employees, petitioner PRBLI is
held solidarily responsible for the damages caused by petitioner Manliclics
negligence.
We now go to the award of damages. The trial court correctly awarded the
amount of P40,838.00 as actual damages representing the amount paid by
respondent for the towing and repair of his jeep. 47 As regards the awards for
moral and exemplary damages, same, under the circumstances, must be
modified. The P100,000.00 awarded by the trial court as moral damages
must be reduced to P50,000.00.48 Exemplary damages are imposed by way
of example or correction for the public good. 49 The amount awarded by the
trial court must, likewise, be lowered to P50,000.00.50 The award
of P15,000.00 for attorneys fees and expenses of litigation is in order and
authorized by law.51
WHEREFORE, premises considered, the instant petition for review is DENIED.
The decision of the Court of Appeals in CA-G.R. CV No. 55909 is AFFIRMED

G.R. No. 182498

Present:
PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD, and
VILLARAMA, JR., JJ.

Promulgated:
December 3, 2009

x-----------------------------------------------------------------------------------------x
DECISION
BRION, J.:
We review in this petition for review on certiorari[1] the decision dated March
7, 2008 of the Court of Appeals (CA) in C.A-G.R. AMPARO No. 00009.[2] This
CA decision confirmed the enforced disappearance of Engineer Morced N.
Tagitis (Tagitis) and granted the Writ of Amparo at the petition of his wife,
Mary Jean B. Tagitis (respondent). The dispositive portion of the CA decision

reads:

the disappearance. Responsibility refers to the extent the actors have been
WHEREFORE,
premises
considered,
petition
is
hereby GRANTED. The Court hereby FINDS that this is
an enforced disappearance within the meaning of the
United Nations instruments, as used in the Amparo
Rules. The privileges of the writ of amparo are hereby
extended to Engr. Morced Tagitis.

established by substantial evidence to have participated in whatever way, by

action or omission, in an enforced disappearance, as a measure of the
remedies this Court shall craft, among them, the directive to file the
appropriate criminal and civil cases against the responsible parties in the

Consequently:
(1)
respondent GEN.
EDGARDO
M.
DOROMAL, Chief, Criminal Investigation and Detention
Group (CIDG) who should order COL. JOSE VOLPANE
PANTE, CIDG-9 Chief, Zamboanga City, to aid him; (2)
respondent GEN. AVELINO I. RAZON, Chief, PNP, who
should order his men, namely: (a) respondent GEN. JOEL
GOLTIAO, Regional Director of ARMM PNP, (b) COL. AHIRON
AJIRIM, both head of TASK FORCE TAGITIS, and (c)
respondent SR.
SUPERINTENDENT
LEONARDO
A.
ESPINA, Chief, Police Anti-Crime and Emergency Response,
to aid him as their superior- are hereby DIRECTED to
exert extraordinary diligence and efforts, not only to
protect the life, liberty and security of Engr. Morced Tagitis,
but also to extend the privileges of the writ of amparo to
Engr. Morced Tagitis and his family, and to submit a monthly
report of their actions to this Court, as a way ofPERIODIC
REVIEW to enable this Court to monitor the action of
respondents.

proper courts. Accountability, on the other hand, refers to the measure of

remedies that should be addressed to those who exhibited involvement in the
enforced disappearance without bringing the level of their complicity to the
level of responsibility defined above; or who are imputed with knowledge
relating to the enforced disappearance and who carry the burden of
disclosure; or those who carry, but have failed to discharge, the burden of
extraordinary diligence in the investigation of the enforced disappearance. In
all these cases, the issuance of the Writ of Amparo is justified by our primary
goal of addressing the disappearance, so that the life of the victim is

This amparo case is hereby DISMISSED as to respondent LT.

GEN. ALEXANDER YANO, Commanding General, Philippine
Army, and as to respondent GEN. RUBEN RAFAEL, Chief
Anti-Terror Task Force Comet, Zamboanga City, both being
with the military, which is a separate and distinct
organization from the police and the CIDG, in terms of
operations, chain of command and budget.

preserved and his liberty and security are restored.

We highlight this nature of a Writ of Amparo case at the outset to stress that
the unique situations that call for the issuance of the writ, as well as the
considerations and measures necessary to address these situations, may not

This Decision reflects the nature of the Writ of Amparo a protective remedy

at all be the same as the standard measures and procedures in ordinary court

against violations or threats of violation against the rights to life, liberty and

actions

security.[3] It embodies, as a remedy, the courts directive to police agencies

of Amparo[4] (Amparo Rule) issued by this Court is unique. The Amparo Rule

to undertake specified courses of action to address the disappearance of an

should be read, too, as a work in progress, as its directions and finer points

individual, in this case, Engr. Morced N. Tagitis.It does not determine guilt nor

remain to evolve through time and jurisprudence and through the substantive

pinpoint

laws that Congress may promulgate.

criminal

culpability

for

the

disappearance;

rather,

it

and

proceedings. In

determines responsibility, or at least accountability, for the enforced

THE FACTUAL ANTECEDENTS
disappearance for purposes of imposing the appropriate remedies to address

this

sense,

the

Rule

on

the

Writ

Razon, Chief, Philippine National Police (PNP); Gen. Edgardo M. Doromal,

The background facts, based on the petition and the records of the case, are

Chief, Criminal Investigation and Detention Group (CIDG); Sr. Supt. Leonardo

summarized below.

A. Espina, Chief, Police Anti-Crime and Emergency Response; Gen. Joel

The established facts show that Tagitis, a consultant for the World Bank and

Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael, Chief, Anti-

the Senior Honorary Counselor for the Islamic Development Bank (IDB)

Terror Task Force Comet [collectively referred to as petitioners]. After reciting

Scholarship Programme, was last seen in Jolo, Sulu. Together with Arsimin

Tagitis personal circumstances and the facts outlined above, the petition

Kunnong (Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in the early

went on to state:
xxxx
7. Soon after the student left the room, Engr. Tagitis went out
of the pension house to take his early lunch but while out on
the street, a couple of burly men believed to be police
intelligence operatives, forcibly took him and boarded
the latter on a motor vehicle then sped away without
the knowledge of his student, Arsimin Kunnong;

morning of October 31, 2007 from a seminar in Zamboanga City. They

immediately checked-in at ASY Pension House. Tagitis asked Kunnong to buy
him a boat ticket for his return trip the following day to Zamboanga.When
Kunnong returned from this errand, Tagitis was no longer around.[5] The
receptionist related that Tagitis went out to buy food at around 12:30 in the
afternoon and even left his room key with the desk.[6] Kunnong looked for

8. As instructed, in the late afternoon of the same day,

Kunnong returned to the pension house, and was surprised to
find out that subject Engr. Tagitis cannot [sic] be contacted by
phone and was not also around and his room was closed and
locked;

Tagitis and even sent a text message to the latters Manila-based secretary
who did not know of Tagitis whereabouts and activities either; she advised
Kunnong to simply wait.[7]

On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP

9. Kunnong requested for the key from the desk of the

pension house who [sic] assisted him to open the room of
Engr. Tagitis, where they discovered that the personal
belongings of Engr. Tagitis, including cell phones, documents
and other personal belongings were all intact inside the room;
10. When Kunnong could not locate Engr. Tagitis, the former
sought the help of another IDB scholar and reported the
matter to the local police agency;

professor of Muslim studies and Tagitis fellow student counselor at the IDB,
reported Tagitis disappearance to the Jolo Police Station.[8] On November 7,
2007, Kunnong executed a sworn affidavit attesting to what he knew of the
circumstances surrounding Tagitis disappearance.[9]

More than a month later (on December 28, 2007), the respondent filed a
Petition for the Writ of Amparo (petition) with the CA through her Attorney-inFact, Atty. Felipe P. Arcilla.[10] The petition was directed against Lt. Gen.
Alexander Yano, Commanding General, Philippine Army; Gen. Avelino I.

11. Arsimin Kunnong including his friends and companions in

Jolo, exerted efforts in trying to locate the whereabouts of
Engr. Tagitis and when he reported the matter to the police
authorities in Jolo, he was immediately given a ready answer
that Engr. Tagitis could have been abducted by the Abu
Sayyaf group and other groups known to be fighting against
the government;
12. Being scared with [sic] these suggestions and
insinuations of the police officers, Kunnong reported the
matter to the [respondent, wife of Engr. Tagitis] by phone and
other responsible officers and coordinators of the IDB
Scholarship Programme in the Philippines, who alerted the
office of the Governor of ARMM who was then preparing to
attend the OIC meeting in Jeddah, Saudi Arabia;

13. [Respondent], on the other hand, approached some of her

co-employees with the Land Bank in Digos branch, Digos City,
Davao del Sur who likewise sought help from some of their
friends in the military who could help them find/locate the
whereabouts of her husband;
14. All of these efforts of the [respondent] did not produce
any positive results except the information from persons in
the military who do not want to be identified that Engr. Tagitis
is in the hands of the uniformed men;
15. According to reliable information received by the
[respondent], subject Engr. Tagitis is in the custody of
police intelligence operatives, specifically with the
CIDG, PNP Zamboanga City,being held against his will
in an earnest attempt of the police to involve and
connect Engr. Tagitis with the different terrorist
groups;
xxxx
17. [Respondent] filed her complaint with the PNP Police
Station in the ARMM in Cotobato and in Jolo, as suggested by
her friends, seeking their help to find her husband, but
[respondents] request and pleadings failed to produce any
positive results;
18. Instead of helping the [respondent], she [sic] was told of
an intriguing tale by the police that her husband, subject of
the petition, was not missing but was with another woman
having good time somewhere, which is a clear indication of
the [petitioners] refusal to help and provide police assistance
in locating her missing husband;
19. The continued failure and refusal of the [petitioners] to
release and/or turn-over subject Engr. Tagitis to his family or
even to provide truthful information to [the respondent] of
the subjects whereabouts, and/or allow [the respondent] to
visit her husband Engr. Morced Tagitis, caused so much
sleepless nights and serious anxieties;

with] the sufferings undergone by the [respondent], informed

her that they are not the proper persons that she should
approach, but assured her not to worry because her husband
is [sic] in good hands;
22. The unexplained uncooperative behavior of the
[petitioners] to the [respondents] request for help and failure
and refusal of the [petitioners] to extend the needed help,
support and assistance in locating the whereabouts of Engr.
Tagitis who had been declared missing since October 30,
2007 which is almost two (2) months now, clearly indicates
that the [petitioners] are actually in physical possession and
custody of [respondents] husband, Engr. Tagitis;
xxxx
25. [The respondent] has exhausted all administrative
avenues and remedies but to no avail, and under the
circumstances, [the respondent] has no other plain, speedy
and adequate remedy to protect and get the release of
subject Engr. Morced Tagitis from the illegal clutches of the
[petitioners], their intelligence operatives and the like which
are in total violation of the subjects human and constitutional
rights, except the issuance of a WRIT OF AMPARO. [Emphasis
supplied]
On the same day the petition was filed, the CA immediately issued the Writ
of Amparo, set the case for hearing on January 7, 2008, and directed the
petitioners to file their verified return within seventy-two (72) hours from
service of the writ.[11]

In their verified Return filed during the hearing of January 27, 2008, the
petitioners denied any involvement in or knowledge of Tagitis alleged

20. Lately, [the respondent] was again advised by one of the

[petitioners] to go to the ARMM Police Headquarters again in
Cotobato City and also to the different Police Headquarters
including [those] in Davao City, in Zamboanga City, in Jolo,
and in Camp Crame, Quezon City, and all these places have
been visited by the [respondent] in search for her husband,
which entailed expenses for her trips to these places thereby
resorting her to borrowings and beggings [sic] for financial
help from friends and relatives only to try complying [sic] to
the different suggestions of these police officers, despite of
which, her efforts produced no positive results up to the
present time;
21. In fact at times, some police officers, who [sympathized

abduction. They argued that the allegations of the petition were incomplete
and did not constitute a cause of action against them; were baseless, or at
best speculative; and were merely based on hearsay evidence. [12]

The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return,
stated that: he did not have any personal knowledge of, or any participation
in, the alleged disappearance; that he had been designated by President

divisions.
Gloria Macapagal Arroyo as the head of a special body called TASK FORCE
USIG,

to

address

concerns

about

extralegal

killings

and

enforced

disappearances; the Task Force, inter alia, coordinated with the investigators
and local police, held case conferences, rendered legal advice in connection
to these cases; and gave the following summary:[13]

5. On this particular case, the Philippine National Police

exhausted all possible efforts, steps and actions available
under the circumstances and continuously search and
investigate [sic] the instant case. This immense mandate,
however, necessitates the indispensable role of the citizenry,
as the PNP cannot stand alone without the cooperation of the
victims and witnesses to identify the perpetrators to bring
them before the bar of justice and secure their conviction in
court.

xxxx
4.
a)
On November 5, 2007, the Regional Director,
Police Regional Office ARMM submitted a report on the
alleged disappearance of one Engr. Morced Tagitis. According
to the said report, the victim checked-in at ASY Pension
House on October 30, 2007 at about 6:00 in the morning and
then roamed around Jolo, Sulu with an unidentified
companion. It was only after a few days when the said victim
did not return that the matter was reported to Jolo
MPS. Afterwards, elements of Sulu PPO conducted a thorough
investigation to trace and locate the whereabouts of the said
missing person, but to no avail. The said PPO is still
conducting investigation that will lead to the immediate
findings of the whereabouts of the person.
b)
Likewise, the Regional Chief, 9RCIDU submitted a
Progress Report to the Director, CIDG. The said report stated
among others that: subject person attended an Education
Development Seminar set on October 28, 2007 conducted at
Ateneo de Zamboanga, Zamboanga City together with a Prof.
Matli. On October 30, 2007, at around 5:00 oclock in the
morning, Engr. Tagitis reportedly arrived at Jolo Sulu wharf
aboard M/V Bounty Cruise, he was then billeted at ASY
Pension House. At about 6:15 oclock in the morning of the
same date, he instructed his student to purchase a fast craft
ticket bound for Zamboanga City and will depart from Jolo,
Sulu on October 31, 2007. That on or about 10:00 oclock in
the morning, Engr. Tagitis left the premises of ASY Pension
House as stated by the cashier of the said pension
house. Later in the afternoon, the student instructed to
purchase the ticket arrived at the pension house and waited
for Engr. Tagitis, but the latter did not return. On its part, the
elements of 9RCIDU is now conducting a continuous case
build up and information gathering to locate the whereabouts
of Engr. Tagitis.
c)
That the Director, CIDG directed the conduct of
the search in all divisions of the CIDG to find Engr. Tagitis who
was allegedly abducted or illegally detained by covert CIDGPNP Intelligence Operatives since October 30, 2007, but after
diligent and thorough search, records show that no such
person is being detained in CIDG or any of its department or

The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well

his affidavit, also attached to the Return of the Writ, attesting that upon
receipt of the Writ ofAmparo, he caused the following:[14]
xxxx
That immediately upon receipt on December 29, 2007 of the
Resolution of the Honorable Special Fourth Division of the
Court of Appeals, I immediately directed the Investigation
Division of this Group [CIDG] to conduct urgent investigation
on the alleged enforced disappearance of Engineer Morced
Tagitis.
That based on record, Engr. Morced N. Tagitis attended an
Education Development Seminar on October 28, 2007 at
Ateneo de Zamboanga at Zamboanga City together with Prof.
Abdulnasser Matli. On October 30, 2007, at around six oclock
in the morning he arrived at Jolo, Sulu. He was assisted by his
student identified as Arsimin Kunnong of the Islamic
Development Bank who was also one of the participants of
the said seminar. He checked in at ASY pension house located
[sic] Kakuyagan, Patikul, Sulu on October 30, 2007 with [sic]
unidentified companion. At around six oclock in the morning
of even date, Engr. Tagitis instructed his student to purchase
a fast craft ticket for Zamboanga City. In the afternoon of the
same date, Kunnong arrived at the pension house carrying
the ticket he purchased for Engr. Tagitis, but the latter was
nowhere to be found anymore. Kunnong immediately
informed Prof. Abdulnasser Matli who reported the incident to
the police. The CIDG is not involved in the disappearance of
Engr. Morced Tagitis to make out a case of an enforced
disappearance which presupposes a direct or indirect
involvement of the government.
That herein [petitioner] searched all divisions and
departments for a person named Engr. Morced N. Tagitis, who
was allegedly abducted or illegally detained by covert CIDGPNP Intelligence Operatives since October 30, 2007 and after

a diligent and thorough research records show that no such

person is being detained in CIDG or any of its department or
divisions.

Superintendent JOSE ARNALDO BRIONES JR., to submit a

written report regarding the disappearance of ENGR.
MORCED.

That nevertheless, in order to determine the circumstances

surrounding Engr. Morced Tagitis [sic] alleged enforced
disappearance, the undersigned had undertaken immediate
investigation and will pursue investigations up to its full
completion in order to aid in the prosecution of the person or
persons responsible therefore.

That in compliance with my directive, the chief of PACER-MOR

sent through fax his written report.

Likewise attached to the Return of the Writ was PNP-PACER[15] Chief PS Supt.
Leonardo A. Espinas affidavit which alleged that:[16]
xxxx
That, I and our men and women in PACER vehemently deny
any participation in the alleged abduction or illegally [sic]
detention of ENGR. MORCED N. TAGITS on October 30,
2007. As a matter of fact, nowhere in the writ was mentioned
that the alleged abduction was perpetrated by elements of
PACER nor was there any indication that the alleged
abduction or illegal detention of ENGR. TAGITIS was
undertaken jointly by our men and by the alleged covert
CIDG-PNP intelligence operatives alleged to have abducted
or illegally detained ENGR. TAGITIS.
That I was shocked when I learned that I was implicated in
the alleged disappearance of ENGR. MORCED in my capacity
as the chief PACER [sic] considering that our office, the Police
Anti-Crime and Emergency Response (PACER), a special task
force created for the purpose of neutralizing or eradicating
kidnap-for-ransom groups which until now continue to be one
of the menace of our society is a respondent in kidnapping or
illegal detention case. Simply put, our task is to go after
kidnappers and charge them in court and to abduct or
illegally detain or kidnap anyone is anathema to our mission.
That right after I learned of the receipt of the WRIT OF
AMPARO, I directed the Chief of PACER Mindanao Oriental
(PACER-MOR) to conduct pro-active measures to investigate,
locate/search the subject, identify and apprehend the persons
responsible, to recover and preserve evidence related to the
disappearance of ENGR. MORCED TAGITIS, which may aid in
the prosecution of the person or persons responsible, to
identify witnesses and obtain statements from them
concerning the disappearance and to determine the cause,
manner, location and time of disappearance as well as any
pattern or practice that may have brought about the
disappearance.
That I further directed the chief of PACER-MOR, Police

That the investigation and measures being undertaken to

locate/search the subject in coordination with Police Regional
Office, Autonomous Region of Muslim Mindanao (PRO-ARMM)
and Jolo Police Provincial Office (PPO) and other AFP and PNP
units/agencies in the area are ongoing with the instruction
not to leave any stone unturned so to speak in the
investigation until the perpetrators in the instant case are
brought to the bar of justice.
That I have exercised EXTRAORDINARY DILIGENCE in dealing
with the WRIT OF AMPARO just issued.

Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao (Gen.
Goltiao), also submitted his affidavit detailing the actions that he had taken
upon receipt of the report on Tagitis disappearance, viz:[17]
xxxx
3) For the record:
1.
I am the Regional Director of Police Regional
Office ARMM now and during the time of the incident;
xxxx
4. It is my duty to look into and take appropriate measures on
any cases of reported enforced disappearances and when
they are being alluded to my office;
5. On November 5, 2007, the Provincial Director of Sulu Police
Provincial Office reported to me through Radio Message Cite
No. SPNP3-1105-07-2007 that on November 4, 2007 at
around 3:30 p.m., a certain Abdulnasser Matli, an employee
of Islamic Development Bank, appeared before the Office of
the Chief of Police, Jolo Police Station, and reported the
disappearance
of
Engr.
Morced
Tagitis,
scholarship
coordinator of Islamic Development Bank, Manila;
6. There was no report that Engr. Tagibis was last seen in the
company of or taken by any member of the Philippine
National Police but rather he just disappeared from ASY
Pension House situated at Kakuyagan Village, Village, Patikul,
Sulu, on October 30, 2007, without any trace of forcible
abduction or arrest;

7. The last known instance of communication with him was

when Arsimin Kunnong, a student scholar, was requested by
him to purchase a vessel ticket at the Office of Weezam
Express, however, when the student returned back to ASY
Pension House, he no longer found Engr. Tagitis there and
when he immediately inquired at the information counter
regarding his whereabouts [sic], the person in charge in the
counter informed him that Engr. Tagitis had left the premises
on October 30, 2007 around 1 oclock p.m. and never returned
back to his room;
8. Immediately after learning the incident, I called and
directed the Provincial Director of Sulu Police Provincial Office
and other units through phone call and text messages to
conduct investigation [sic] to determine the whereabouts of
the aggrieved party and the person or persons responsible for
the threat, act or omission, to recover and preserve evidence
related to the disappearance of Engr. Tagitis, to identify
witnesses and obtain statements from them concerning his
disappearance, to determine the cause and manner of his
disappearance, to identify and apprehend the person or
persons involved in the disappearance so that they shall be
brought before a competent court;
9. Thereafter, through my Chief of the Regional Investigation
and Detection Management Division, I have caused the
following directives:
a)
Radio Message Cite No. RIDMD-1122-07-358
dated November 22, 2007 directing PD Sulu PPO to
conduct joint investigation with CIDG and CIDU ARMM
on the matter;
b)
Radio Message Cite No. RIDMD-1128-07-361
dated November 28, 2007 directing PD Sulu PPO to
expedite compliance to my previous directive;
c)
Memorandum dated December 14, 2007
addressed to PD Sulu PPO reiterating our series of
directives for investigation and directing him to
undertake exhaustive coordination efforts with the
owner of ASY Pension House and student scholars of
IDB in order to secure corroborative statements
regarding the disappearance and whereabouts of said
personality;
d)
Memorandum dated December 24, 2007
addressed to PD Sulu PPO directing him to maximize
efforts to establish clues on the whereabouts of Engr.
Tagitis by seeking the cooperation of Prof.
Abdulnasser Matli and Arsimin Kunnong and/or
whenever necessary, for them to voluntarily submit
for polygraph examination with the NBI so as to

expunge all clouds of doubt that they may somehow

have knowledge or idea to his disappearance;
e)
Memorandum dated December 27, 2007
addressed
to
the
Regional
Chief,
Criminal
Investigation and Detection Group, Police Regional
Office 9, Zamboanga City, requesting assistance to
investigate the cause and unknown disappearance of
Engr. Tagitis considering that it is within their area of
operational jurisdiction;
f)
Memorandum from Chief, Intelligence Division,
PRO ARMM dated December 30, 2007 addressed to
PD Sulu PPO requiring them to submit complete
investigation report regarding the case of Engr.
Tagitis;
10. In compliance to our directives, PD Sulu PPO has exerted
his [sic] efforts to conduct investigation [sic] on the matter to
determine the whereabouts of Engr. Tagitis and the
circumstances related to his disappearance and submitted
the following:
a)
Progress Report dated November 6, 2007 through
Radio Message Cite No. SPNP3-1106-10-2007;
b)
Radio Message Cite No. SPIDMS-1205-47-07
informing this office that they are still monitoring the
whereabouts of Engr. Tagitis;
c)
Investigation Report dated December 31, 2007
from the Chief of Police, Jolo Police Station, Sulu PPO;
11. This incident was properly reported to the PNP Higher
Headquarters as shown in the following:
a)
Memorandum dated November 6, 2007 addressed
to the Chief, PNP informing him of the facts of the
disappearance and the action being taken by our office;
b)
Memorandum dated November 6, 2007 addressed
to the Director, Directorate for Investigation and
Detection Management, NHQ PNP;
c)
Memorandum dated December 30, 2007 addressed
to the Director, DIDM;
4) In spite of our exhaustive efforts, the whereabouts of Engr.
Tagitis cannot be determined but our office is continuously
intensifying the conduct of information gathering, monitoring
and coordination for the immediate solution of the case.
Since the disappearance of Tagistis was practically admitted and taking note

of favorable actions so far taken on the disappearance, the CA directed Gen.

In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged

Goltiao as the officer in command of the area of disappearance to form TASK

to be responsible, he personally went to the CIDG office in Zamboanga City to

FORCE TAGITIS.[18]

conduct an ocular inspection/investigation, particularly of their detention

cells.[24] PS Supt. Ajirim stated that the CIDG, while helping TASK FORCE

Task Force Tagitis

TAGITIS investigate the disappearance of Tagitis, persistently denied any

knowledge or complicity in any abduction.[25] He further testified that prior

On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS

to the hearing, he had already mobilized and given specific instructions to

Supt. Ajirim) to head TASK FORCE TAGITIS.[19] The CA subsequently set three

their supporting units to perform their respective tasks; that they even talked

hearings to monitor whether TASK FORCE TAGITIS was exerting extraordinary

to, but failed to get any lead from the respondent in Jolo.[26] In his submitted

efforts in handling the disappearance of Tagitis.[20] As planned, (1) the first

investigation report dated January 16, 2008, PS Supt. Ajirim concluded:[27]

hearing would be to mobilize the CIDG, Zamboanga City; (2) the second
hearing would be to mobilize intelligence with Abu Sayyaf and ARMM; and (3)
the third hearing would be to mobilize the Chief of Police of Jolo, Sulu and the
Chief of Police of Zamboanga City and other police operatives.[21]
In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the CA
an intelligence report from PSL Usman S. Pingay, the Chief of Police of the
Jolo Police Station, stating a possible motive for Tagitis disappearance.

9. Gleaned from the undersigned inspection and observation

at the Headquarters 9 RCIDU and the documents at hand, it is
my own initial conclusion that the 9RCIDU and other PNP
units in the area had no participation neither [sic] something
to do with [sic] mysterious disappearance of Engr. Morced
Tagitis last October 30, 2007. Since doubt has been raised
regarding the emolument on the Islamic Development Bank
Scholar program of IDB that was reportedly deposited in the
personal account of Engr. Tagitis by the IDB central office in
Jeddah, Kingdom of Saudi Arabia.Secondly, it could might
[sic] be done by resentment or sour grape among students
who are applying for the scholar [sic] and were denied which
was allegedly conducted/screened by the subject being the
coordinator of said program.

[22] The intelligence report was apparently based on the sworn affidavit
dated January 4, 2008 of Muhammad Abdulnazeir N. Matli (Prof. Matli),
Professor of Islamic Studies at the University of the Philippines and an
Honorary Student Counselor of the IDB Scholarship Program in the

20. It is also premature to conclude but it does or it may and

[sic] presumed that the motive behind the disappearance of
the subject might be due to the funds he maliciously spent for
his personal interest and wanted to elude responsibilities
from the institution where he belong as well as to the Islamic
student scholars should the statement of Prof. Matli be true or
there might be a professional jealousy among them.

Philippines, who told the Provincial Governor of Sulu that:[23]

[Based] on reliable information from the Office of Muslim
Affairs in Manila, Tagitis has reportedly taken and carried
away more or less Five Million Pesos (P5,000,000.00)
deposited and entrusted to his [personal] bank accounts by
the Central Office of IDB, Jeddah, Kingdom of Saudi Arabia,
which [was] intended for the IDB Scholarship Fund.

xxxx
It is recommended that the Writ of Amparo filed against the
respondents be dropped and dismissed considering on [sic]
the police and military actions in the area particularly the
CIDG are exerting their efforts and religiously doing their
tasked [sic] in the conduct of its intelligence monitoring and
investigation for the early resolution of this instant case. But
rest assured, our office, in coordination with other lawenforcement agencies in the area, are continuously and
religiously conducting our investigation for the resolution of

this case.
On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct
examination that she went to Jolo and Zamboanga in her efforts to locate her
On February 4, 2008, the CA issued an ALARM WARNING that TASK FORCE
husband. She said that a friend from Zamboanga holding a high position in
TAGITIS did not appear to be exerting extraordinary efforts in resolving Tagitis
the military (whom she did not then identify) gave her information that
disappearance on the following grounds:[28]
allowed her to specify her allegations, particularly paragraph 15 of the
(1)
This Court FOUND that it was only as late as
January 28, 2008, after the hearing, that GEN. JOEL GOLTIAO
and COL. AHIRON AJIRIM had requested for clear photographs
when it should have been standard operating procedure in
kidnappings or disappearances that the first agenda was for
the police to secure clear pictures of the missing person,
Engr. Morced Tagitis, for dissemination to all parts of the
country and to neighboring countries. It had been three (3)
months since GEN. JOEL GOLTIAO admitted having
been informed on November 5, 2007 of the alleged
abduction of Engr. Morced Tagitis by alleged bad elements of
the CIDG. It had been more than one (1) month since the Writ
of Amparo had been issued on December 28, 2007. It had
been three (3) weeks when battle formation was ordered
through Task Force Tagitis, on January 17, 2008. It was only
on January 28, 2008 when the Task Force Tagitis requested for
clear and recent photographs of the missing person, Engr.
Morced Tagitis, despite the Task Force Tagitis claim that they
already had an all points bulletin, since November 5, 2007,
on the missing person, Engr. Morced Tagitis. How could the
police look for someone who disappeared if no clear
photograph had been disseminated?
(2)
Furthermore, Task Force Tagitis COL. AHIROM
AJIRIM informed this Court that P/Supt KASIM was designated
as Col. Ahirom Ajirims replacement in the latters official
designated post. Yet, P/Supt KASIMs subpoena was returned
to this Court unserved. Since this Court was made to
understand that it was P/Supt KASIM who was the petitioners
unofficial source of the military intelligence information that
Engr. Morced Tagitis was abducted by bad elements of the
CIDG (par. 15 of the Petition), the close contact between
P/Supt KASIM and Col. Ahirom Ajirim of TASK FORCE TAGITIS
should have ensured the appearance of Col. KASIM in
response to this courts subpoena and COL. KASIM could have
confirmed the military intelligence information that bad
elements of the CIDG had abducted Engr. Morced Tagitis.

petition.[29] This friend also told her that her husband [was] in good hands.
[30] The respondent also testified that she sought the assistance of her
former boss in Davao City, Land Bank Bajada Branch Manager Rudy Salvador,
who told her that PNP CIDG is holding [her husband], Engineer Morced Tagitis.
[31] The respondent recounted that she went to Camp Katitipan in Davao
City where she met Col. Julasirim Ahadin Kasim (Col. Kasim/Sr. Supt Kasim)
who read to her and her friends (who were then with her) a highly
confidential report that contained the alleged activities of Engineer Tagitis
and informed her that her husband was abducted because he is under
custodial investigation for being a liaison for J.I. or Jemaah Islamiah.[32]

On January 17, 2008, the respondent on cross-examination testified that she

is Tagitis second wife, and they have been married for thirteen years; Tagitis
was divorced from his first wife.[33] She last communicated with her husband
on October 29, 2007 at around 7:31 p.m. through text messaging; Tagitis was
then on his way to Jolo, Sulu, from Zamboanga City.[34]
The respondent narrated that she learned of her husbands disappearance on
October 30, 2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed
her that she had not heard from her father since the time they arranged to
meet in Manila on October 31, 2007.[35] The respondent explained that it
took her a few days (or on November 5, 2007) to personally ask Kunnong to

Testimonies for the Respondent

report her husbands disappearance to the Jolo Police Station, since she had
the impression that her husband could not communicate with her because his
cellular phones battery did not have enough power, and that he would call
her when he had fully-charged his cellular phones battery.[36]
The respondent also identified the high-ranking military friend, who gave her
the information found in paragraph 15 of her petition, as Lt. Col. Pedro L.
Ancanan, Jr (Col. Ancanan). She met him in Camp Karingal, Zamboanga
through her boss.[37] She also testified that she was with three other people,
namely, Mrs. Marydel Martin Talbin and her two friends from Mati City, Davao
Oriental, when Col. Kasim read to them the contents of the highly confidential
report at Camp Katitipan, Davao City. The respondent further narrated that
the report indicated that her husband met with people belonging to a
terrorist group and that he was under custodial investigation. She then told
Col. Kasim that her husband was a diabetic taking maintenance medication,
and asked that the Colonel relay to the persons holding him the need to give

gathered all information, he revealed to us the contents of

text messages they got from the cellular phone of the subject
Engr. Tagitis. One of the very important text messages of
Engr. Tagitis sent to his daughter Zaynah Tagitis was that
she was not allowed to answer any telephone calls in his
condominium unit.
While we were there he did not tell us any information of the
whereabouts of Engr. Tagitis. After the said meeting with Col.
Ancanan, he treated us as guests to the city. His two staffs
accompanied us to the mall to purchase our plane ticket
going back to Davao City on November 12, 2007.
When we arrived in Davao City on November 12, 2007 at 9:00
in the morning, Col. Ancanan and I were discussing some
points through phone calls. He assured me that my husband
is alive and hes last looked [sic] in Talipapao, Jolo, Sulu. Yet I
did not believe his given statements of the whereabouts of
my husband, because I contacted some of my friends who
have access to the groups of MILF, MNLF and ASG. I called up
Col. Ancanan several times begging to tell me the exact
location of my husband and who held him but he refused.
While I was in Jolo, Sulu on November 30, 2007, I called him
up again because the PNP, Jolo did not give me any
information of the whereabouts of my husband. Col. Ancanan
told me that Sana ngayon alam mo na kung saan ang
kinalalagyan ng asawa mo. When I was in Zamboanga, I was
thinking of dropping by the office of Col. Ancanan, but I was
hesitant to pay him a visit for the reason that the Chief of
Police of Jolo told me not to contact any AFP officials and he
promised me that he can solve the case of my husband (Engr.
Tagitis) within nine days.

him his medication.[38]

I appreciate the effort of Col. Ancanan on trying to solve the
case of my husband Engr. Morced Tagitis, yet failed to do so.
On February 11, 2008, TASK FORCE TAGITIS submitted two narrative reports,
[39] signed by the respondent, detailing her efforts to locate her husband
which led to her meetings with Col. Ancanan of the Philippine Army and Col.
Kasim of the PNP. In her narrative report concerning her meeting with Col.
Ancanan, the respondent recounted, viz:[40]
On November 11, 2007, we went to Zamboanga City with my
friend Mrs. Marydel Talbin. Our flight from Davao City is 9:00
oclock in the morning; we arrived at Zamboanga Airport at
around 10:00 oclock. We [were] fetched by the two staffs of
Col. Ancanan. We immediately proceed [sic] to West
Mindanao Command (WESTMINCOM).
On that same day, we had private conversation with Col.
Ancanan. He interviewed me and got information about the
personal background of Engr. Morced N. Tagitis. After he

The respondent also narrated her encounter with Col. Kasim, as follows:[41]
On November 7, 2007, I went to Land Bank of the Philippines,
Bajada Branch, Davao City to meet Mr. Rudy Salvador. I told
him that my husband, Engineer Morced Tagitis was presumed
to be abducted in Jolo, Sulu on October 30, 2007. I asked him
a favor to contact his connections in the military in Jolo, Sulu
where the abduction of Engr. Tagitis took place. Mr. Salvador
immediately called up Camp Katitipan located in Davao City
looking for high-ranking official who can help me gather
reliable information behind the abduction of subject Engineer
Tagitis.
On that same day, Mr. Salvador and my friend, Anna
Mendoza, Executive Secretary, accompanied me to Camp
Katitipan to meet Col. Kasim. Mr. Salvador introduced me to
Col. Kasim and we had a short conversation. And he assured

me that hell do the best he can to help me find my husband.

the respondent together with two other companions, namely, Salvacion
After a few weeks, Mr. Salvador called me up informing me up
informing me that I am to go to Camp Katitipan to meet Col.
Kasim for he has an urgent, confidential information to reveal.

Serrano and Mini Leong, to Camp Katitipan to talk to Col. Kasim.[44] The
respondent asked Col. Kasim if he knew the exact location of Engr.

On November 24, 2007, we went back to Camp Katitipan with

my three friends. That was the time that Col. Kasim read to us
the confidential report that Engr. Tagitis was allegedly
connected [with] different terrorist [groups], one of which he
mentioned in the report was OMAR PATIK and a certain
SANTOS - a Balik Islam.
It is also said that Engr. Tagitis is carrying boxes of medicines
for the injured terrorists as a supplier. These are the two
information that I can still remember. It was written in a long
bond paper with PNP Letterhead. It was not shown to us, yet
Col. Kasim was the one who read it for us.

Tagitis. Col. Kasim told them that Tagitis was in good hands, although he was
not certain whether he was with the PNP or with the Armed Forces of the
Philippines (AFP). She further recounted that based on the report Col. Kasim
read in their presence, Tagitis was under custodial investigation because he
was being charged with terrorism; Tagitis in fact had been under surveillance
since January 2007 up to the time he was abducted when he was seen talking

He asked a favor to me that Please dont quote my Name!

Because this is a raw report. He assured me that my husband
is alive and he is in the custody of the military for custodial
investigation.I told him to please take care of my husband
because he has aliments and he recently took insulin for he is
a diabetic patient.
In my petition for writ of amparo, I emphasized the
information that I got from Kasim.

to Omar Patik and a certain Santos of Bulacan, a Balik Islam charged with
terrorism. Col. Kasim also told them that he could not give a copy of the
report because it was a raw report.[45] She also related that the Col. Kasim
did not tell them exactly where Tagitis was being kept, although he
mentioned

Talipapao,

Sulu.Prof., lalabas

din

yan.[50] Prof.

Matli

also

On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin
emphasized that despite what his January 4, 2008 affidavit indicated,[51] he
(Mrs. Talbin) to corroborate her testimony regarding her efforts to locate her
never told PS Supt. Pingay, or made any accusation, that Tagitis took away
husband, in relation particularly with the information she received from Col.
money entrusted to him.[52] Prof. Matli confirmed, however, that that he had
Kasim. Mrs. Talbin testified that she was with the respondent when she went
received an e-mail report[53] from Nuraya Lackian of the Office of Muslim
to Zamboanga to see Col. Ancanan, and to Davao City at Camp Katitipan to
Affairs in Manila that the IDB was seeking assistance of the office in locating
meet Col. Kasim.[42]
the funds of IDB scholars deposited in Tagitis personal account.[54]
In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who
On cross-examination by the respondents counsel, Prof. Matli testified that his
told them that there was a report and that he showed them a series of text
January 4, 2008 affidavit was already prepared when PS Supt. Pingay asked
messages from Tagitis cellular phone, which showed that Tagitis and his
him to sign it.[55]Prof Matli clarified that although he read the affidavit before
daughter would meet in Manila on October 30, 2007.[43]
signing it, he was not so much aware of [its] contents.[56]
She further narrated that sometime on November 24, 2007, she went with
On February 11, 2008, the petitioners presented Col. Kasim to rebut material

portions of the respondents testimony, particularly the allegation that he had

CIDG-9, to disprove the respondents allegation that Tagitis was in the custody

stated that Tagitis was in the custody of either the military or the PNP.

of CIDG-Zamboanga City.[65] Col. Pante clarified that the CIDG was the

[57] Col. Kasim categorically denied the statements made by the respondent

investigative arm of the PNP, and that the CIDG investigates and prosecutes

in her narrative report, specifically: (1) that Tagitis was seen carrying boxes of

all cases involving violations in the Revised Penal Code particularly those

medicines as supplier for the injured terrorists; (2) that Tagitis was under the

considered as heinous crimes.[66] Col. Pante further testified that the

custody of the military, since he merely said to the respondent that

allegation that 9 RCIDU personnel were involved in the disappearance of

your husband is in good hands and is probably taken cared of by his

Tagitis was baseless, since they did not conduct any operation in Jolo, Sulu

armed abductors; and (3) that Tagitis was under custodial investigation by

before or after Tagitis reported disappearance.[67] Col. Pante added that the

the

Kasim

four (4) personnel assigned to the Sulu CIDT had no capability to conduct any

emphasized that the informal letter he received from his informant in Sulu did

operation, since they were only assigned to investigate matters and to

not indicate that Tagitis was in the custody of the CIDG.[59] He also stressed

monitor the terrorism situation.[68] He denied that his office conducted any

that the information he provided to the respondent was merely a raw report

surveillance on Tagitis prior to the latters disappearance.[69] Col. Pante

sourced from barangay intelligence that still needed confirmation and follow-

further

up as to its veracity.[60]

unsuccessful; the investigation was still facing a blank wall on the

On cross-examination, Col. Kasim testified that the information he gave the

whereabouts of Tagitis.[70]

military,

the

PNP

or

the

CIDG

Zamboanga

City.[58] Col.

testified

that

his

investigation

of

Tagitis

disappearance

was

respondent was given to him by his informant, who was a civilian asset,
through a letter which he considered as unofficial.[61] Col. Kasim stressed

THE CA RULING

that the letter was only meant for his consumption and not for reading by

On March 7, 2008, the CA issued its decision[71] confirming that the

others.[62] He testified further that he destroyed the letter right after he

disappearance of Tagitis was an enforced disappearance under the United

read it to the respondent and her companions because it was not important

Nations (UN) Declaration on the Protection of All Persons from Enforced

to him and also because the information it contained had no importance in

Disappearances.[72] The CA ruled that when military intelligence pinpointed

relation with the abduction of Tagitis.[63] He explained that he did not keep

the investigative arm of the PNP (CIDG) to be involved in the abduction, the

the letter because it did not contain any information regarding the

missing-person case qualified as an enforced disappearance. The conclusion

whereabouts of Tagitis and the person(s) responsible for his abduction.[64]

that the CIDG was involved was based on the respondents testimony,
corroborated by her companion, Mrs. Talbin. The CA noted that the

In the same hearing on February 11, 2008, the petitioners also presented

information that the CIDG, as the police intelligence arm, was involved in

Police Senior Superintendent Jose Volpane Pante (Col. Pante), Chief of the

Tagitis abduction came from no less than the military an independent agency

of government. The CA thus greatly relied on the raw report from Col. Kasims

extraordinary diligence and efforts to protect the life, liberty and security of

asset, pointing to the CIDGs involvement in Tagitis abduction.The CA held

Tagitis, with the obligation to provide monthly reports of their actions to the

that raw reports from an asset carried great weight in the intelligence

CA. At the same time, the CA dismissed the petition against the then

world. It also labeled as suspect Col. Kasims subsequent and belated

respondents from the military, Lt. Gen Alexander Yano and Gen. Ruben

retraction of his statement that the military, the police, or the CIDG was

Rafael, based on the finding that it was PNP-CIDG, not the military, that was

involved in the abduction of Tagitis.

involved.
On March 31, 2008, the petitioners moved to reconsider the CA decision, but

The CA characterized as too farfetched and unbelievable and a bedlam of

the CA denied the motion in its Resolution of April 9, 2008.[73]

speculation police theories painting the disappearance as intentional on the

part of Tagitis. He had no previous brushes with the law or any record of

THE PETITION

overstepping the bounds of any trust regarding money entrusted to him; no

In this Rule 45 appeal questioning the CAs March 7, 2008 decision, the

student of the IDB scholarship program ever came forward to complain that

petitioners mainly dispute the sufficiency in form and substance of

he or she did not get his or her stipend. The CA also found no basis for the

the Amparo petition filed before the CA; the sufficiency of the legal remedies

police theory that Tagitis was trying to escape from the clutches of his second

the respondent took before petitioning for the writ; the finding that the rights

wife, on the basis of the respondents testimony that Tagitis was a Muslim who

to life, liberty and security of Tagitis had been violated; the sufficiency of

could have many wives under the Muslim faith, and that there was no issue

evidence supporting the conclusion that Tagitis was abducted; the conclusion

at all when the latter divorced his first wife in order to marry the second.

that the CIDG Zamboanga was responsible for the abduction; and, generally,

Finally, the CA also ruled out kidnapping for ransom by the Abu Sayyaf or by

the ruling that the respondent discharged the burden of proving the

the ARMM paramilitary as the cause for Tagitis disappearance, since the

allegations of the petition by substantial evidence.[74]

respondent,

the

police

and

the

military

noted

that

there

was

no

acknowledgement of Tagitis abduction or demand for payment of ransom the

THE COURTS RULING

usualmodus operandi of these terrorist groups.

We do not find the petition meritorious.
Based on these considerations, the CA thus extended the privilege of the writ
to Tagitis and his family, and directed the CIDG Chief, Col. Jose Volpane Pante,

Sufficiency in Form and Substance

PNP Chief Avelino I. Razon, TASK FORCE TAGITIS heads Gen. Joel Goltiao and
Col. Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina to exert

In questioning the sufficiency in form and substance of the

respondents Amparo petition, the petitioners contend that the petition

violated Section 5(c), (d), and (e) of theAmparo Rule. Specifically, the
petitioners allege that the respondent failed to:

1)

allege any act or omission the petitioners committed in violation

the manner and conduct

together with any report;

of

the

investigation,

(e) The actions and recourses taken by the petitioner

to determine the fate or whereabouts of the aggrieved
party and the identity of the person responsible for
the threat, act or omission; and
The framers of the Amparo Rule never intended Section 5(c) to be

of Tagitis rights to life, liberty and security;

complete in every detail in stating the threatened or actual violation of a

allege in a complete manner how Tagitis was abducted, the

victims rights. As in any other initiatory pleading, the pleader must of course

persons responsible for his disappearance, and the respondents

state the ultimate facts constituting the cause of action, omitting the

source of information;

evidentiary details.[76] In an Amparo petition, however, this requirement

allege that the abduction was committed at the petitioners

must be read in light of the nature and purpose of the proceeding, which

instructions or with their consent;

addresses a situation of uncertainty; the petitioner may not be able to

implead the members of CIDG regional office in Zamboanga

describe with certainty how the victim exactly disappeared, or who actually

alleged to have custody over her husband;

acted to kidnap, abduct or arrest him or her, or where the victim is detained,

5)

attach the affidavits of witnesses to support her accusations;

because these information may purposely be hidden or covered up by those

6)

allege any action or inaction attributable to the petitioners in the

who caused the disappearance. In this type of situation, to require the level

performance of their duties in the investigation of Tagitis

of specificity, detail and precision that the petitioners apparently want to read

disappearance; and

into the Amparo Rule is to make this Rule a token gesture of judicial concern

specify what legally available efforts she took to determine the

for violations of the constitutional rights to life, liberty and security.

2)

3)

4)

7)

fate or whereabouts of her husband.

To read the Rules of Court requirement on pleadings while addressing
A petition for the Writ of Amparo shall be signed and verified and shall allege,
the unique Amparo situation, the test in reading the petition should be to
among others (in terms of the portions the petitioners cite):[75]
determine whether it contains the details available to the petitioner under
(c) The right to life, liberty and security of the
aggrieved party violated or threatened with violation
by an unlawful act or omission of the respondent,
and how such threat or violation is committed with
the attendant circumstances detailed in supporting
affidavits;
(d) The investigation conducted, if any, specifying
the names, personal circumstances, and addresses of
the investigating authority or individuals, as well as

the circumstances, while presenting a cause of action showing a violation of

the victims rights to life, liberty and security through State or private party
action. The petition should likewise be read in its totality, rather than in terms
of its isolated component parts, to determine if the required elements
namely, of the disappearance, the State or private action, and the actual or

threatened violations of the rights to life, liberty or security are present.

supporting affidavits, with the annotation that these can be used as the
affiants direct testimony.[78] This requirement, however, should not be read

In the present case, the petition amply recites in its paragraphs 4 to

as an absolute one that necessarily leads to the dismissal of the petition if

11 the circumstances under which Tagitis suddenly dropped out of sight after

not strictly followed. Where, as in this case, the petitioner has substantially

engaging in normal activities, and thereafter was nowhere to be found

complied with the requirement by submitting a verified petition sufficiently

despite efforts to locate him. The petition alleged, too, under its paragraph 7,

detailing the facts relied upon, the strict need for the sworn statement that

in

reliable

an affidavit represents is essentially fulfilled. We note that the failure to

information, police operatives were the perpetrators of the abduction. It also

attach the required affidavits was fully cured when the respondent and her

clearly alleged how Tagitis rights to life, liberty and security were violated

witness (Mrs. Talbin) personally testified in the CA hearings held on January 7

when he was forcibly taken and boarded on a motor vehicle by a couple of

and 17 and February 18, 2008 to swear to and flesh out the allegations of the

burly men believed to be police intelligence operatives, and then taken into

petition. Thus, even on this point, the petition cannot be faulted.

relation

to

paragraphs

15

and

16, that

according

to

custody by the respondents police intelligence operatives since October 30,

Section 5(d) of the Amparo Rule requires that prior investigation of an
2007, specifically by the CIDG, PNP Zamboanga City, x x x held against his
alleged disappearance must have been made, specifying the manner and
will in an earnest attempt of the police to involve and connect [him] with
results of the investigation.Effectively, this requirement seeks to establish at
different terrorist groups.[77]
the earliest opportunity the level of diligence the public authorities undertook
These allegations, in our view, properly pleaded ultimate facts within

in relation with the reported disappearance.[79]

the pleaders knowledge about Tagitis disappearance, the participation by

We reject the petitioners argument that the respondents petition did

agents of the State in this disappearance, the failure of the State to release

not comply with the Section 5(d) requirements of the Amparo Rule, as the

Tagitis or to provide sufficient information about his whereabouts, as well as

petition specifies in its paragraph 11 that Kunnong and his companions

the actual violation of his right to liberty. Thus, the petition cannot be faulted

immediately reported Tagitis disappearance to the police authorities in Jolo,

for any failure in its statement of a cause of action.

Sulu as

soon

as

they

were

relatively

certain

that

he

indeed

had

disappeared. The police, however, gave them the ready answer that Tagitis
If a defect can at all be attributed to the petition, this defect is its lack

could have been abducted by the Abu Sayyaf group or other anti-government

of supporting affidavit, as required by Section 5(c) of the Amparo Rule. Owing

groups. The respondent also alleged in paragraphs 17 and 18 of her petition

to the summary nature of the proceedings for the writ and to facilitate the

that she filed a complaint with the PNP Police Station in Cotobato and in Jolo,

resolution of the petition, the Amparo Rule incorporated the requirement for

but she was told of an intriguing tale by the police that her husband was

having a good time with another woman. The disappearance was alleged to
have been reported, too, to no less than the Governor of the ARMM, followed

We do not see the respondents petition as the petitioners view it.

by the respondents personal inquiries that yielded the factual bases for her
petition.[80]

Section

5(e)

merely

requires

that

the Amparo petitioner

(the

respondent in the present case) allege the actions and recourses taken to
These allegations, to our mind, sufficiently specify that reports have

determine the fate or whereabouts of the aggrieved party and the identity of

been made to the police authorities, and that investigations should have

the person responsible for the threat, act or omission. The following

followed. That the petition did not state the manner and results of the

allegations of the respondents petition duly outlined the actions she had

investigation that the Amparo Rule requires, but rather generally stated the

taken and the frustrations she encountered, thus compelling her to file her

inaction of the police, their failure to perform their duty to investigate, or at

petition.
xxxx
7. Soon after the student left the room, Engr. Tagitis went out
of the pension house to take his early lunch but while out on
the street, a couple of burly men believed to be police
intelligence operatives, forcibly took him and boarded the
latter on a motor vehicle then sped away without the
knowledge of his student, Arsimin Kunnong;

the very least, their reported failed efforts, should not be a reflection on the
completeness of the petition. To require the respondent to elaborately specify
the names, personal circumstances, and addresses of the investigating
authority, as well the manner and conduct of the investigation is an overly

xxxx
strict interpretation of Section 5(d), given the respondents frustrations in
securing

an

investigation

with

meaningful

results.

Under

these

10. When Kunnong could not locate Engr. Tagitis, the former
sought the help of another IDB scholar and reported the
matter to the local police agency;

circumstances, we are more than satisfied that the allegations of the petition
on the investigations undertaken are sufficiently complete for purposes of
bringing the petition forward.

11. Arsimin Kunnong, including his friends and companions in

Jolo, exerted efforts in trying to locate the whereabouts of
Engr. Tagitis and when he reported the matter to the police
authorities in Jolo, he was immediately given a ready answer
that Engr. Tagitis could [have been] abducted by the Abu
Sayyaf group and other groups known to be fighting against
the government;

Section 5(e) is in the Amparo Rule to prevent the use of a petition

that otherwise is not supported by sufficient allegations to constitute a proper
cause of action as a means to fish for evidence.[81] The petitioners contend
that the respondents petition did not specify what legally available efforts

12. Being scared with these suggestions and insinuations of

the police officers, Kunnong reported the matter to the
[respondent](wife of Engr. Tagitis) by phone and other
responsible officers and coordinators of the IDB Scholarship
Programme in the Philippines who alerted the office of the
Governor of ARMM who was then preparing to attend the OIC
meeting in Jeddah, Saudi Arabia;

were taken by the respondent, and that there was an undue haste in the
filing of the petition when, instead of cooperating with authorities, the
respondent immediately invoked the Courts intervention.

13. [The respondent], on the other hand, approached some of

her co-employees with the Land Bank in Digos branch, Digos
City, Davao del Sur, who likewise sought help from some of
their friends in the military who could help them find/locate

the whereabouts of her husband;

The present case is one of first impression in the use and application
xxxx
15. According to reliable information received by the
[respondent], subject Engr. Tagitis is in the custody of police
intelligence operatives, specifically with the CIDG, PNP
Zamboanga City, being held against his will in an earnest
attempt of the police to involve and connect Engr. Tagitis with
the different terrorist groups;

of the Rule on the Writ of Amparo in an enforced disappearance situation. For

a deeper appreciation of the application of this Rule to an enforced
disappearance situation, a brief look at the historical context of the writ and
enforced disappearances would be very helpful.

xxxx
17. [The respondent] filed her complaint with the PNP Police
Station at the ARMM in Cotobato and in Jolo, as suggested by
her friends, seeking their help to find her husband, but [the
respondents] request and pleadings failed to produce any
positive results
xxxx
20. Lately, [respondent] was again advised by one of the
[petitioners] to go to the ARMM Police Headquarters again in
Cotobato City and also to the different Police Headquarters
including the police headquarters in Davao City, in
Zamboanga City, in Jolo, and in Camp Crame, Quezon City,
and all these places have been visited by the [respondent] in
search for her husband, which entailed expenses for her trips
to these places thereby resorting her to borrowings and
beggings [sic] for financial help from friends and relatives
only to try complying to the different suggestions of these
police officers, despite of which, her efforts produced no
positive results up to the present time;
xxxx
25. [The respondent] has exhausted all administrative
avenues and remedies but to no avail, and under the
circumstances, [respondent] has no other plain, speedy and
adequate remedy to protect and get the release of subject
Engr. Morced Tagitis from the illegal clutches of [the
petitioners], their intelligence operatives and the like which
are in total violation of the subjects human and constitutional
rights, except the issuance of a WRIT OF AMPARO.

The phenomenon of enforced disappearance arising from State action

first attracted notice in Adolf Hitlers Nact und Nebel Erlass or Night and Fog
Decree of December 7, 1941.[82] The Third Reichs Night and Fog Program, a
State policy, was directed at persons in occupied territories endangering
German security; they were transported secretly to Germany where they
disappeared without a trace. In order to maximize the desired intimidating
effect, the policy prohibited government officials from providing information
about the fate of these targeted persons.[83]

In the mid-1970s, the phenomenon of enforced disappearances

resurfaced, shocking and outraging the world when individuals, numbering
anywhere from 6,000 to 24,000, were reported to have disappeared during
the military regime in Argentina. Enforced disappearances spread in Latin
America, and the issue became an international concern when the world
noted its widespread and systematic use by State security forces in that

Based on these considerations, we rule that the respondents petition

continent under Operation Condor[84] and during the Dirty War[85] in the

for the Writ of Amparo is sufficient in form and substance and that the Court

1970s and 1980s. The escalation of the practice saw political activists

of Appeals had every reason to proceed with its consideration of the case.

secretly arrested, tortured, and killed as part of governments counterinsurgency campaigns. As this form of political brutality became routine
elsewhere in the continent, the Latin American media standardized the term

The Desaparecidos

disappearance to describe the phenomenon. The victims of enforced

disappearances were called the desaparecidos,[86] which literally means

status.[90] Currently, the United Nations Working Group on Enforced or

the disappeared ones.[87] In general, there are three different kinds of

Involuntary Disappearance[91] reports 619 outstanding cases of enforced or

disappearance cases:

involuntary disappearances covering the period December 1, 2007 to

1)

2)

3)

those of people arrested without witnesses or without

positive identification of the arresting agents and are
never found again;
those of prisoners who are usually arrested without an
appropriate warrant and held in complete isolation for
weeks or months while their families are unable to
discover their whereabouts and the military authorities
deny having them in custody until they eventually
reappear in one detention center or another; and
those of victims of salvaging who have disappeared
until their lifeless bodies are later discovered.[88]

November 30, 2008.[92]

Enforced Disappearances
Under Philippine Law

The Amparo Rule expressly provides

that the writ shall cover

extralegal killings and enforced disappearances or threats thereof.[93] We

note that although the writ specifically covers enforced disappearances, this
concept is neither defined nor penalized in this jurisdiction. The records of the

In the Philippines, enforced disappearances generally fall within the

first two categories,[89] and 855 cases were recorded during the period of
martial law from 1972 until 1986. Of this number, 595 remained missing, 132
surfaced alive and 127 were found dead. During former President Corazon C.
Aquinos term, 820 people were reported to have disappeared and of these,
612 cases were documented. Of this number, 407 remain missing, 108
surfaced

alive

and

97

were

found

dead. The

number

of

enforced

disappearances dropped during former President Fidel V. Ramos term when

only 87 cases were reported, while the three-year term of former President
Joseph E. Estrada yielded 58 reported cases. KARAPATAN, a local nongovernmental organization, reports that as of March 31, 2008, the records
show that there were a total of 193 victims of enforced disappearance under
incumbent President Gloria M. Arroyos administration. The Commission on
Human Rights records show a total of 636 verified cases of enforced
disappearances from 1985 to 1993. Of this number, 406 remained missing,
92 surfaced alive, 62 were found dead, and 76 still have undetermined

Supreme Court Committee on the Revision of Rules (Committee) reveal that

the drafters of the Amparo Rule initially considered providing an elemental
definition of the concept of enforced disappearance:[94]
JUSTICE MARTINEZ: I believe that first and foremost we
should come up or formulate a specific definition [for]
extrajudicial killings and enforced disappearances. From that
definition, then we can proceed to formulate the rules,
definite rules concerning the same.
CHIEF JUSTICE PUNO: As things stand, there is no law
penalizing
extrajudicial
killings
and
enforced
disappearances so initially also we have to [come up
with] the nature of these extrajudicial killings and
enforced disappearances [to be covered by the Rule]
because our concept of killings and disappearances
will define the jurisdiction of the courts. So well have to
agree among ourselves about the nature of killings and
disappearances for instance, in other jurisdictions, the rules
only cover state actors. That is an element incorporated in
their concept of extrajudicial killings and enforced
disappearances. In other jurisdictions, the concept includes
acts and omissions not only of state actors but also of non
state actors. Well, more specifically in the case of the
Philippines for instance, should these rules include the
killings, the disappearances which may be authored by let us
say, the NPAs or the leftist organizations and others. So,
again we need to define the nature of the extrajudicial killings
and enforced disappearances that will be covered by these

rules. [Emphasis supplied] [95]

of individuals to life, liberty and security. Although the Courts power is strictly
procedural and as such does not diminish, increase or modify substantive
In the end, the Committee took cognizance of several bills filed in the
rights, the legal protection that the Court can provide can be very meaningful
House of Representatives[96] and in the Senate[97] on extrajudicial killings
through the procedures it sets in addressing extrajudicial killings and
and enforced disappearances, and resolved to do away with a clear textual
enforced disappearances. The Court, through its procedural rules, can set
definition of these terms in the Rule. The Committee instead focused on the
theprocedural standards and thereby directly compel the public authorities to
nature and scope of the concerns within its power to address and provided
act on actual or threatened violations of constitutional rights. To state the
the appropriate remedy therefor, mindful that an elemental definition may
obvious, judicial intervention can make a difference even if only procedurally
intrude into the ongoing legislative efforts.[98]
in a situation when the very same investigating public authorities may have
had a hand in the threatened or actual violations of constitutional rights.
As

the

law

now

stands,

extra-judicial

killings

and

enforced

disappearances in this jurisdiction are not crimes penalized separately from

Lest this Court intervention be misunderstood, we clarify once again
the component criminal acts undertaken to carry out these killings and
that we do not rule on any issue of criminal culpability for the extrajudicial
enforced disappearances and are now penalized under the Revised Penal
killing or enforced disappearance. This is an issue that requires criminal
Code and special laws.[99] The simple reason is that the Legislature has not
action before our criminal courts based on our existing penal laws. Our
spoken on the matter; the determination of what acts are criminal and what
intervention is in determining whether an enforced disappearance has taken
the corresponding penalty these criminal acts should carry are matters of
place and who is responsible or accountable for this disappearance, and to
substantive law that only the Legislature has the power to enact under the
define and impose the appropriate remedies to address it. The burden for the
countrys constitutional scheme and power structure.
public authorities to discharge in these situations, under the Rule on the Writ
of Amparo, is

twofold. The first is

to

ensure

that

all

efforts

Even without the benefit of directly applicable substantive laws on

at disclosure and investigation are undertaken under pain of indirect
extra-judicial killings and enforced disappearances, however, the Supreme
contempt from this Court when governmental efforts are less than what the
Court is not powerless to act under its own constitutional mandate to
individual situations require. The second is to address the disappearance, so
promulgate rules

concerning

the

protection

and

enforcement

of
that the life of the victim is preserved and his or her liberty and security

constitutional rights, pleading, practice and procedure in all courts,[100]since

restored. In these senses, our orders and directives relative to the writ are
extrajudicial killings and enforced disappearances, by their nature and
continuing efforts that are not truly terminated until the extrajudicial killing or
purpose, constitute State or private party violation of the constitutional rights
enforced disappearance is fully addressed by the complete determination of

the fate and the whereabouts of the victim, by the production of the

In 1992, in response to the reality that the insidious practice of

disappeared person and the restoration of his or her liberty and security, and,

enforced disappearance had become a global phenomenon, the UN General

in the proper case, by the commencement of criminal action against the

Assembly adopted theDeclaration on the Protection of All Persons from

guilty parties.

Enforced Disappearance (Declaration).[104] This Declaration, for the first

time, provided in its third preambular clause a working description of

Enforced Disappearance
Under International Law

enforced disappearance, as follows:

From the International Law perspective, involuntary or enforced

disappearance is considered a flagrant violation of human rights.[101] It does
not only violate the right to life, liberty and security of the desaparecido; it
affects their families as well through the denial of their right to information
regarding the circumstances of the disappeared family member. Thus,
enforced disappearances have been said to be a double form of torture, with

Deeply concerned that in many countries, often in a

persistent manner, enforced disappearances occur, in the
sense that persons are arrested, detained or abducted
against their will or otherwise deprived of their liberty
by officials of different branches or levels of
Government, or by organized groups or private
individuals acting on behalf of, or with the support,
direct or indirect, consent or acquiescence of the
Government, followed by a refusal to disclose the fate
or whereabouts of the persons concerned or a refusal
to acknowledge the deprivation of their liberty, which
places such persons outside the protection of the law.
[Emphasis supplied]

doubly paralyzing impact for the victims, as they are kept ignorant of their
own fates, while family members are deprived of knowing the whereabouts of

Fourteen years after (or on December 20, 2006), the UN General

their detained loved ones and suffer as well the serious economic hardship

Assembly adopted the International Convention for the Protection of All

and poverty that in most cases follow the disappearance of the household

Persons from Enforced Disappearance (Convention).[105] The Convention

breadwinner.[102]

was opened for signature in Paris, France on February 6, 2007.[106] Article 2

of the Convention defined enforced disappearance as follows:

The UN General Assembly first considered the issue of Disappeared

Persons

in

December

1978

under

Resolution

33/173. The

Resolution

expressed the General Assemblys deep concern arising from reports from
various parts of the world relating to enforced or involuntary disappearances,
and requested the UN Commission on Human Rights to consider the issue of
enforced

disappearances

recommendations.[103]

with

view

to

making

For the purposes of this Convention, enforced

disappearance is considered to be the arrest, detention,
abduction or any other form of deprivation of liberty by
agents of the State or by persons or groups of persons acting
with the authorization, support or acquiescence of the State,
followed by a refusal to acknowledge the deprivation of
liberty or by concealment of the fate or whereabouts of the
disappeared person, which place such a person outside the
protection of the law. [Emphasis supplied]

appropriate
The Convention is the first universal human rights instrument to assert that
there is a right not to be subject to enforced disappearance[107] and that

this right is non-derogable.[108] It provides that no one shall be subjected to

all without distinctions as to race, sex, language or religion.[112]Although no

enforced disappearance under any circumstances, be it a state of war,

universal agreement has been reached on the precise extent of the human

internal political instability, or any other public emergency. It obliges State

rights and fundamental freedoms guaranteed to all by the Charter,[113] it

Parties to codify enforced disappearance as an offense punishable with

was the UN itself that issued the Declaration on enforced disappearance, and

appropriate penalties under their criminal law.[109] It also recognizes the

this Declaration states:[114]

right of relatives of the disappeared persons and of the society as a whole to

know the truth on the fate and whereabouts of the disappeared and on the
progress and results of the investigation.[110] Lastly, it classifies enforced
disappearance as a continuing offense, such that statutes of limitations shall

Any act of enforced disappearance is an offence to

dignity. It is condemned as a denial of the purposes of
the Charter of the United Nations and as a grave and
flagrant violation of human rights and fundamental
freedoms proclaimed in the Universal Declaration of
Human
Rights and
reaffirmed
and
developed
in
international instruments in this field. [Emphasis supplied]

not apply until the fate and whereabouts of the victim are established.[111]
As a matter of human right and fundamental freedom and as a policy matter
Binding Effect of UN
Action on the Philippines

made in a UN Declaration, the ban on enforced disappearance cannot but

have its effects on the country, given our own adherence to generally

To date, the Philippines has neither signed nor ratified the Convention, so

accepted principles of international law as part of the law of the land.[115]

that the country is not yet committed to enact any law penalizing enforced
In the recent case of Pharmaceutical and Health Care Association of
disappearance as a crime.The absence of a specific penal law, however, is
the Philippines v. Duque III,[116] we held that:
not a stumbling block for action from this Court, as heretofore mentioned;
underlying every enforced disappearance is a violation of the constitutional
rights to life, liberty and security that the Supreme Court is mandated by the
Constitution to protect through its rule-making powers.

Under the 1987 Constitution, international law can

become part of the sphere of domestic law either
by transformation or incorporation. The transformation
method requires that an international law be transformed into
a domestic law through a constitutional mechanism such as
local legislation. The incorporation method applies
when,
by
mere
constitutional
declaration,
international law is deemed to have the force of
domestic law. [Emphasis supplied]

Separately from the Constitution (but still pursuant to its terms), the
Court is guided, in acting on Amparo cases, by the reality that the Philippines
We characterized generally accepted principles of international law as norms
is a member of the UN, bound by its Charter and by the various conventions
of general or customary international law that are binding on all states. We
we signed and ratified, particularly the conventions touching on humans
held further:[117]
rights. Under the UN Charter, the Philippines pledged to promote universal
respect for, and observance of, human rights and fundamental freedoms for

[G]enerally accepted principles of international law,

by virtue of the incorporation clause of the Constitution, form

part of the laws of the land even if they do not derive from
treaty
obligations.
The classical
formulation
in
international law sees those customary rules accepted
as binding result from the combination [of] two
elements:
the
established,
widespread,
and
consistent practice on the part of States; and
a psychological
element
known
as
the opinion
juris sive necessitates (opinion as to law or necessity).
Implicit in the latter element is abelief that the practice in
question is rendered obligatory by the existence of a
rule of law requiring it. [Emphasis in the original]

cases when the crime was committed within their jurisdiction, when the
victim is a national of that State, and when the alleged criminal is within its
territory and it does not proceed to extradite him, which can be interpreted
as establishing universal jurisdiction among the parties to the Inter-American
Convention.[124] At present, Colombia, Guatemala, Paraguay, Peru and
Venezuela have enacted separate laws in accordance with the Inter-American

The most widely accepted statement of sources of international law

today is Article 38(1) of the Statute of the International Court of Justice, which

Convention and have defined activities involving enforced disappearance to

be criminal.[125]

provides that the Court shall apply international custom, as evidence of a

Second, in Europe, the European Convention on Human Rights has no
general practice accepted as law.[118] The material sources of custom
explicit

provision

dealing

with

the

protection

against

enforced

include State practice, State legislation, international and national judicial

disappearance. The European Court of Human Rights (ECHR), however, has
decisions, recitals in treaties and other international instruments, a pattern of
applied the Convention in a way that provides ample protection for the
treaties in the same form, the practice of international organs, and
underlying

rights

affected

by

enforced

disappearance

through

the

resolutions relating to legal questions in the UN General Assembly.

Conventions Article 2 on the right to life; Article 3 on the prohibition of
[119] Sometimes referred to as evidence of international law,[120] these
torture; Article 5 on the right to liberty and security; Article 6, paragraph 1 on
sources identify the substance and content of the obligations of States and
the right to a fair trial; and Article 13 on the right to an effective remedy. A
are

indicative

of

the

State

practice

and opinio

juris requirements

of
leading example demonstrating the protection afforded by the European

international law.[121] We note the following in these respects:

Convention is Kurt v. Turkey,[126] where the ECHR found a violation of the
First, barely two years from the adoption of the Declaration, the

right to liberty and security of the disappeared person when the applicants

Organization of American States (OAS) General Assembly adopted the Inter-

son disappeared after being taken into custody by Turkish forces in the

American Convention on Enforced Disappearance of Persons in June 1994.

Kurdish village of Agilli in November 1993. It further found the applicant (the

[122] State parties undertook under this Convention not to practice, permit,

disappeared persons mother) to be a victim of a violation of Article 3, as a

or tolerate the forced disappearance of persons, even in states of emergency

result of the silence of the authorities and the inadequate character of the

or suspension of individual guarantees.[123] One of the key provisions

investigations undertaken. The ECHR also saw the lack of any meaningful

includes the States obligation to enact the crime of forced disappearance in

investigation by the State as a violation of Article 13.[127]

their respective national criminal laws and to establish jurisdiction over such
Third, in the United States, the status of the prohibition on enforced

disappearance as part of customary international law is recognized in the

treatment or punishment) and 9 (right to liberty and security of the person)

most recent edition ofRestatement of the Law: The Third,[128] which

of the ICCPR, and the act may also amount to a crime against humanity.[131]

provides that [a] State violates international law if, as a matter of State
Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the
policy, it practices, encourages, or condones (3) the murder or causing the
International Criminal Court (ICC) also covers enforced disappearances
disappearance of individuals.[129] We significantly note that in a related
insofar as they are defined as crimes against humanity,[132] i.e., crimes
matter that finds close identification with enforced disappearance the matter
committed as part of a widespread or systematic attack against any civilian
of torture the United States Court of Appeals for the Second Circuit Court held
population, with knowledge of the attack. While more than 100 countries
in Filartiga v. Pena-Irala[130] that the prohibition on torture had attained the
have ratified the Rome Statute,[133] the Philippines is still merely a signatory
status of customary international law. The court further elaborated on the
and has not yet ratified it. We note that Article 7(1) of the Rome Statute has
significance of UN declarations, as follows:
been incorporated in the statutes of other international and hybrid tribunals,
These U.N. declarations are significant because they
specify with great precision the obligations of member
nations under the Charter. Since their adoption, "(m)embers
can no longer contend that they do not know what human
rights they promised in the Charter to promote. Moreover, a
U.N. Declaration is, according to one authoritative definition,
"a formal and solemn instrument, suitable for rare occasions
when principles of great and lasting importance are being
enunciated. Accordingly, it has been observed that the
Universal Declaration of Human Rights "no longer fits into the
dichotomy
of
binding
treaty
against
non-binding
pronouncement,' but is rather an authoritative statement of
the international community." Thus, a Declaration creates an
expectation of adherence, and "insofar as the expectation is
gradually justified by State practice, a declaration may by
custom become recognized as laying down rules binding
upon the States." Indeed, several commentators have
concluded that the Universal Declaration has become, in toto,
a part of binding, customary international law. [Citations
omitted]

including Sierra Leone Special Court, the Special Panels for Serious Crimes in
Timor-Leste, and the Extraordinary Chambers in the Courts of Cambodia.
[134] In addition, the implementing legislation of State Parties to the Rome
Statute of the ICC has given rise to a number of national criminal provisions
also covering enforced disappearance.[135]

While the Philippines is not yet formally bound by the terms of the
Convention on enforced disappearance (or by the specific terms of the Rome
Statute) and has not formally declared enforced disappearance as a specific
crime, the above recital shows that enforced disappearance as a State

Fourth, in interpreting Article 2 (right to an effective domestic

practice has been repudiated by the international community, so

remedy) of the International Convention on Civil and Political Rights (ICCPR),

that the ban on it is now a generally accepted principle of

to which the Philippines is both a signatory and a State Party, the UN Human

international law, which we should consider a part of the law of the

Rights Committee, under the Office of the High Commissioner for Human

land, and which we should act upon to the extent already allowed

Rights, has stated that the act of enforced disappearance violates Articles 6

under our laws and the international conventions that bind us.

(right to life), 7 (prohibition on torture, cruel, inhuman or degrading

The following civil or political rights under the Universal Declaration of

Human Rights, the ICCPR and the International Convention on Economic,

Social and Cultural Rights (ICESR) may be infringed in the course of a
disappearance:[136]
1) the right to recognition as a person before the law;
2) the right to liberty and security of the person;
3) the right not to be subjected to torture and other cruel,
inhuman or degrading treatment or punishment;
4) the right to life, when the disappeared person is killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including reparation
and compensation;
8) the right to know the truth regarding the
circumstances of a disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [Emphasis supplied]

Article 2 of the ICCPR, which binds the Philippines as a state party, provides:
Article 2
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as
herein recognized are violated shall have an effective
remedy, notwithstanding that the violation has been
committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy
shall have his right thereto determined by competent
judicial, administrative or legislative authorities, or by
any other competent authority provided for by the legal
system of the State, and to develop the possibilities of judicial
remedy;
(c) To ensure that the competent authorities shall enforce
such remedies when granted. [Emphasis supplied]

Committee
attaches
importance
to
States
Parties'
establishing
appropriate
judicial
and administrative
mechanisms for addressing claims of rights violations under
domestic
law Administrative
mechanisms
are
particularly required to give effect to the general
obligation to investigate allegations of violations
promptly,
thoroughly
and
effectivelythrough
independent and impartial bodies. A failure by a State
Party to investigate allegations of violations could in and of
itself give rise to a separate breach of the Covenant.
Cessation of an ongoing violation is an essential element of
the right to an effective remedy. [Emphasis supplied]
The UN Human Rights Committee further stated in the same General
Comment No. 31 that failure to investigate as well as failure to bring to
justice the perpetrators of ICCPR violations could in and of itself give rise to a
separate breach of the Covenant, thus:[138]
18. Where the investigations referred to in paragraph 15
reveal violations of certain Covenant rights, States Parties
must ensure that those responsible are brought to
justice. As with failure to investigate, failure to bring
to justice perpetrators of such violations could in and
of itself give rise to a separate breach of the
Covenant. These obligations arise notably in respect of
those violations recognized as criminal under either
domestic or international law, such as torture and similar
cruel, inhuman and degrading treatment (article 7), summary
and
arbitrary
killing
(article
6) and
enforced
disappearance (articles 7 and 9 and, frequently,
6). Indeed, the problem of impunity for these violations, a
matter of sustained concern by the Committee, may well be
an important contributing element in the recurrence of the
violations. When committed as part of a widespread or
systematic attack on a civilian population, these violations of
the Covenant are crimes against humanity (see Rome Statute
of the International Criminal Court, article 7). [Emphasis
supplied]

In General Comment No. 31, the UN Human Rights Committee opined that
the right to an effective remedy under Article 2 of the ICCPR includes the
In Secretary of National Defense v. Manalo,[139] this Court, in ruling that the
obligation of the State to investigate ICCPR violations promptly, thoroughly,
right to security of persons is a guarantee of the protection of ones right by
and effectively, viz:[137]
the government, held that:
15. Article 2, paragraph 3, requires that in addition to
effective protection of Covenant rights, States Parties must
ensure that individuals also have accessible and
effective remedies to vindicate those rights The

The right to security of person in this third sense is a corollary

of the policy that the State guarantees full respect for human
rights under Article II, Section 11 of the 1987 Constitution. As

the government is the chief guarantor of order and security,

the Constitutional guarantee of the rights to life, liberty and
security of person is rendered ineffective if government does
not affordprotection to these rights especially when they
are
under
threat. Protection
includes
conducting
effective
investigations,
organization
of
the
government apparatus to extend protection to victims
of extralegal killings or enforced disappearances (or
threats thereof) and/or their families, and bringing
offenders to the bar of justice. The Inter-American Court
of Human Rights stressed the importance of investigation in
the Velasquez Rodriguez Case, viz:
(The
duty
to
investigate) must
be
undertaken in a serious manner and not
as a mere formality preordained to be
ineffective. An investigation must have an
objective and be assumed by the State as
its own legal duty, not as a step taken
by private interests that depends upon
the initiative of the victim or his
family or upon their offer of proof, without an
effective search for the truth by the
government. [Emphasis supplied]

Writ

of Amparo,

which

the

Court

made

effective

on

October

24,

2007. Although the Amparo Rule still has gaps waiting to be filled through
substantive law, as evidenced primarily by the lack of a concrete definition of
enforced disappearance, the materials cited above, among others,
provide ample guidance and standards on how, through the medium
of the Amparo Rule, the Court can provide remedies and protect the
constitutional rights to life, liberty and security that underlie every
enforced disappearance.
Evidentiary Difficulties Posed
by the Unique Nature of an
Enforced Disappearance

Before going into the issue of whether the respondent has discharged
the burden of proving the allegations of the petition for the Writ of Amparo by

Manalo significantly cited Kurt v. Turkey,[140] where the ECHR interpreted

the degree of proof required by the Amparo Rule, we shall discuss briefly the

the right to security not only as a prohibition on the State against arbitrary

unique evidentiary difficulties presented by enforced disappearance cases;

deprivation of liberty, but also as the imposition of a positive duty to afford

these difficulties form part of the setting that the implementation of

protection to the right to liberty. The Court notably quoted the following

the Amparo Rule shall encounter.

ECHR ruling:
[A]ny deprivation of liberty must not only have been effected
in conformity with the substantive and procedural rules of
national law but must equally be in keeping with the very
purpose of Article 5, namely to protect the individual from
arbitrariness... Having assumed control over that individual, it
is incumbent on the authorities to account for his or her
whereabouts. For this reason, Article 5 must be seen as
requiring the authorities to take effective measures to
safeguard against the risk of disappearance and to
conduct a prompt effective investigation into an
arguable claim that a person has been taken into
custody and has not been seen since. [Emphasis
supplied]

These difficulties largely arise because the State itself the party
whose involvement is alleged investigates enforced disappearances. Past
experiences in other jurisdictions show that the evidentiary difficulties are
generally threefold.

First, there may be a deliberate concealment of the identities of

the direct perpetrators.[141] Experts note that abductors are well
organized, armed and usually members of the military or police forces, thus:

These rulings effectively serve as the backdrop for the Rule on the

The victim is generally arrested by the security forces or by

persons acting under some form of governmental authority. In

many countries the units that plan, implement and execute
the program are generally specialized, highly-secret bodies
within the armed or security forces. They are generally
directed through a separate, clandestine chain of command,
but they have the necessary credentials to avoid or prevent
any interference by the "legal" police forces. These
authorities take their victims to secret detention centers
where they subject them to interrogation and torture without
fear of judicial or other controls.[142]

deliberately

deny

that

the

enforced

disappearance

ever

occurred.

[148] Deniability is central to the policy of enforced disappearances, as the

absence of any proven disappearance makes it easier to escape the
application

of

legal

standards

ensuring

the

victims

human

rights.

[149]Experience shows that government officials typically respond to

requests for information about desaparecidos by saying that they are not

In addition, there are usually no witnesses to the crime; if there are,

these witnesses are usually afraid to speak out publicly or to testify on the

aware of any disappearance, that the missing people may have fled the
country, or that their names have merely been invented.[150]

disappearance out of fear for their own lives.[143] We have had occasion to
These considerations are alive in our minds, as these are the
note this difficulty in Secretary of

Defense v.

Manalo[144] when we
difficulties we confront, in one form or another, in our consideration of this

acknowledged that where powerful military officers are implicated, the

case.
hesitation of witnesses to surface and testify against them comes as no
Evidence and Burden of Proof in
Enforced Disappearances Cases

surprise.
Second, deliberate

concealment

of

pertinent

evidence

of

the

disappearance is a distinct possibility; the central piece of evidence in an

enforced disappearance i.e., thecorpus delicti or the victims body is usually
concealed to effectively thwart the start of any investigation or the progress
of one that may have begun.[145] The problem for the victims family is the
States virtual monopoly of access to pertinent evidence. The Inter-American
Court of Human Rights (IACHR) observed in the landmark case of Velasquez

Sections

13,

17

and

18

of

the Amparo Rule

define

the

nature

an Amparo proceeding and the degree and burden of proof the parties to the
case carry, as follows:
Section 13. Summary Hearing. The hearing on the petition
shall be summary. However, the court, justice or judge may
call for a preliminary conference to simplify the issues and
determine the possibility of obtaining stipulations and
admissions from the parties.
xxxx

Rodriguez[146] that inherent to the practice of enforced disappearance is the

deliberate use of the States power to destroy the pertinent evidence. The

of

Section 17. Burden of Proof and Standard of Diligence

Required. The parties shall establish their claims
by substantial evidence.

IACHR described the concealment as a clear attempt by the State to commit

the perfect crime.[147]

The respondent who is a private individual must prove that

ordinary diligence as required by applicable laws, rules and
regulations was observed in the performance of duty.

Third is the element of denial; in many cases, the State authorities

The respondent who is a public official or employee must

prove that extraordinary diligence as required by applicable
laws, rules and regulations was observed in the performance

of duty.
The landmark case of Ang Tibay v. Court of Industrial Relations[151] provided
The respondent public official or employee cannot invoke the
presumption that official duty has been regularly performed
or evade responsibility or liability.
Section 18. Judgment. If the allegations in the petition are
proven by substantial evidence, the court shall grant the
privilege of the writ and such reliefs as may be proper and
appropriate;otherwise, the privilege shall be denied.
[Emphasis supplied]

These characteristics namely, of being summary and the use of

substantial evidence as the required level of proof (in contrast to the usual
preponderance of evidence or proof beyond reasonable doubt in court
proceedings) reveal the clear intent of the framers of the Amparo Rule to
have the equivalent of an administrative proceeding, albeit judicially
conducted,

in

addressing Amparo situations. The

standard

of

the Court its first opportunity to define the substantial evidence required to
arrive at a valid decision in administrative proceedings. To directly quote Ang
Tibay:
Substantial evidence is more than a mere scintilla. It
means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.
[citations omitted] The statute provides that the rules of
evidence prevailing in courts of law and equity shall not be
controlling. The obvious purpose of this and similar provisions
is to free administrative boards from the compulsion of
technical rules so that the mere admission of matter which
would be deemed incompetent in judicial proceedings would
not invalidate the administrative order. [citations omitted] But
this assurance of a desirable flexibility in administrative
procedure does not go so far as to justify orders without a
basis in evidence having rational probative force. [Emphasis
supplied]

diligence

required the duty of public officials and employees to observe extraordinary

diligence point, too, to the extraordinary measures expected in the protection
of constitutional rights and in the consequent handling and investigation of
extra-judicial killings and enforced disappearance cases.

Thus, in these proceedings, the Amparo petitioner needs only to

properly comply with the substance and form requirements of a Writ
of Amparo petition, as discussed above, and prove the allegations by
substantial evidence. Once a rebuttable case has been proven, the
respondents must then respond and prove their defenses based on the
standard of diligence required. The rebuttable case, of course, must show
that an enforced disappearance took place under circumstances showing a
violation of the victims constitutional rights to life, liberty or security, and the
failure on the part of the investigating authorities to appropriately respond.

In Secretary of Defense v. Manalo,[152] which was the Courts first

petition for a Writ of Amparo, we recognized that the full and exhaustive
proceedings that the substantial evidence standard regularly requires do not
need to apply due to the summary nature of Amparo proceedings. We said:
The remedy [of the writ of amparo] provides rapid
judicial relief as it partakes of a summary proceeding that
requires only substantial evidence to make the appropriate
reliefs available to the petitioner; it is not an action to
determine criminal guilt requiring proof beyond reasonable
doubt, or liability for damages requiring preponderance of
evidence, or administrative responsibility requiring
substantial evidence that will require full and
exhaustive proceedings. [Emphasis supplied]
Not

to

be

forgotten

in

considering

the

evidentiary

aspects

of Amparo petitions are the unique difficulties presented by the nature of

enforced disappearances, heretofore discussed, which difficulties this Court
must frontally meet if the Amparo Rule is to be given a chance to achieve its
objectives. These evidentiary difficulties compel the Court to adopt standards

appropriate and responsive to the circumstances, without transgressing the

was kidnapped by a special military squadron acting under orders of the

due process requirements that underlie every proceeding.

Chief of the Armed Forces.[155] The IACHR likewise considered the hearsay
testimony of a second witness who asserted that he had been told by a

In the seminal case of Velasquez Rodriguez,[153] the IACHR faced

Honduran military officer about the disappearance, and a third witness who

with a lack of direct evidence that the government of Honduras was involved

testified that he had spoken in prison to a man who identified himself as

in Velasquez Rodriguez disappearance adopted a relaxed and informal

Manfredo.[156]

evidentiary standard, and established the rule that presumes governmental

responsibility for a disappearance if it can be proven that the government

Velasquez stresses the lesson that flexibility is necessary under the unique

carries out a general practice of enforced disappearances and the specific

circumstances that enforced disappearance cases pose to the courts; to have

case can be linked to that practice.[154] The IACHR took note of the realistic

an effective remedy, the standard of evidence must be responsive to the

fact

through

evidentiary difficulties faced. On the one hand, we cannot be arbitrary in the

circumstantial or indirect evidence or by logical inference; otherwise, it was

admission and appreciation of evidence, as arbitrariness entails violation of

impossible to prove that an individual had been made to disappear. It held:

rights and cannot be used as an effective counter-measure; we only

that

enforced

disappearances

could

be

proven

only

130. The practice of international and domestic courts shows

that direct evidence, whether testimonial or documentary, is
not the only type of evidence that may be legitimately
considered
in
reaching
a
decision. Circumstantial
evidence,
indicia,
and
presumptions
may
be
considered, so long as they lead to conclusions
consistent with the facts.
131. Circumstantial
or
presumptive
evidence
is
especially important in allegations of disappearances,
because this type of repression is characterized by an
attempt to suppress all information about the
kidnapping or the whereabouts and fate of the
victim. [Emphasis supplied]

compound the problem if a wrong is addressed by the commission of another

wrong. On the other hand, we cannot be very strict in our evidentiary rules
and cannot consider evidence the way we do in the usual criminal and civil
cases; precisely, the proceedings before us are administrative in nature
where, as a rule, technical rules of evidence are not strictly observed. Thus,
while we must follow the substantial evidence rule, we must observe
flexibility in considering the evidence we shall take into account.

In concluding that the disappearance of Manfredo Velsquez (Manfredo) was

carried out by agents who acted under cover of public authority, the IACHR

The fair and proper rule, to our mind, is to consider all the pieces of evidence

relied on circumstantial evidence including the hearsay testimony of

adduced

Zenaida Velsquez, the victims sister, who described Manfredos kidnapping on

inadmissible under our usual rules to be admissible if it is consistent with the

the basis of conversations she had with witnesses who saw Manfredo

admissible evidence adduced. In other words, we reduce our rules to the

kidnapped by men in civilian clothes in broad daylight. She also told the

most basic test of reason i.e., to the relevance of the evidence to

Court that a former Honduran military official had announced that Manfredo

the issue at hand and its consistency with all other pieces of

in

their

totality,

and

to

consider

any

evidence

otherwise

adduced evidence. Thus, even hearsay evidence can be admitted if it

support or acquiescence of the State, followed by a refusal to acknowledge

satisfies this basic minimum test.

the deprivation of liberty or by concealment of the fate or whereabouts of the

disappeared person, which place such a person outside the protection of the

We note in this regard that the use of flexibility in the consideration of

law.[159] Under this definition, the elements that constitute enforced

evidence is not at all novel in the Philippine legal system. In child abuse

disappearance are essentially fourfold:[160]

cases, Section 28 of the Rule on Examination of a Child Witness[157] is

(a)

arrest, detention, abduction

deprivation of liberty;

or

any

form

of

expressly recognized as an exception to the hearsay rule. This Rule allows the
(b)
admission of the hearsay testimony of a child describing any act or
attempted act of sexual abuse in any criminal or non-criminal proceeding,

carried out by agents of the State or persons or

groups of persons acting with the authorization,
support or acquiescence of the State;
(c) followed by a refusal to acknowledge the detention, or a
concealment of the fate of the disappeared person; and

subject to certain prerequisites and the right of cross-examination by the

adverse party. The admission of the statement is determined by the court in

(d) placement of the disappeared person

protection of the law. [Emphasis supplied]

outside

the

light of specified subjective and objective considerations that provide

sufficient indicia of reliability of the child witness.[158] These requisites for

We find no direct evidence indicating how the victim actually

admission find their counterpart in the present case under the above-

disappeared. The direct evidence at hand only shows that Tagitis went out of

described conditions for the exercise of flexibility in the consideration of

the ASY Pension House after depositing his room key with the hotel desk and

evidence, including hearsay evidence, in extrajudicial killings and enforced

was never seen nor heard of again. The undisputed conclusion, however,

disappearance cases.

from all concerned the petitioner, Tagitis colleagues and even the police
authorities is that Tagistis disappeared under mysterious circumstances and

Assessment of the Evidence

was never seen again. The respondent injected the causal element in her
petition and testimony, as we shall discuss below.

The threshold question for our resolution is: was there an enforced
disappearance within the meaning of this term under the UN Declaration we
We likewise find no direct evidence showing that operatives of PNP
have cited?
CIDG Zamboanga abducted or arrested Tagitis. If at all, only the respondents
allegation that Tagistis was under CIDG Zamboanga custody stands on
The Convention defines enforced disappearance as the arrest,
record, but it is not supported by any other evidence, direct or circumstantial.
detention, abduction or any other form of deprivation of liberty by agents of
the State or by persons or groups of persons acting with the authorization,
In her direct testimony, the respondent pointed to two sources of

A: Yes, sir. In front of us, my friends.

information as her bases for her allegation that Tagistis had been placed
Q: And what was the content of that highly confidential report?
under government custody (in contrast with CIDG Zamboanga custody). The
A: Those

first was an unnamed friend in Zamboanga (later identified as Col. Ancanan),

that Tagitis was in good hands. Nothing came out of this claim, as both the

respondents testimony:
Q: Were you able to speak to other military officials
regarding the whereabouts of your husband
particularly those in charge of any records or
investigation?
A: I went to Camp Katitipan in Davao City. Then one
military officer, Col. Casim, told me that my
husband is being abducted [sic] because he is
under custodial investigation because he is
allegedly parang liason ng J.I., sir.
Q: What is J.I.?

Tagitis,

sir.

A: Yes, maam.
Q: And a certain Col. Kasim told you that your
husband was abducted and under custodial
investigation?

but denied giving her any information about the disappearance.

met in Camp Katitipan in Davao City. To quote the relevant portions of the

Engineer

Q: You also mentioned that you went to Camp

Katitipan in Davao City?

Ancanan gave them any information that Tagitis was in government

Col. Kasim, whom the respondent, together with her witness Mrs. Talbin,

of

She confirmed this testimony in her cross-examination:

respondent herself and her witness, Mrs. Talbin, failed to establish that Col.

The more specific and productive source of information was

activities

[161] [Emphasis supplied]

who occupied a high position in the military and who allegedly mentioned

custody. Col. Ancanan, for his part, admitted the meeting with the respondent

alleged

A: Yes, maam.
Q: And you mentioned that he showed you a report?
A: Yes, maam.
Q: Were you able to read the contents of that report?
A: He did not furnish me a copy of those [sic]
report because those [sic] were highly
confidential. That is a military report, maam.
Q: But you were able to read the contents?
A: No. But he read it in front of us, my friends, maam.
Q: How many were you when you went to see Col. Kasim?
A: There were three of us, maam.
Q: Who were your companions?

A: Jemaah Islamiah, sir.

Q: Was there any information that was read to you
during one of those visits of yours in that Camp?
A: Col. Casim did not furnish me a copy of his
report because he said those reports are highly
confidential, sir.
Q: Was it read to you then even though you
were not furnished a copy?

A: Mrs. Talbin, tapos yung dalawang friends nya from

Mati City, Davao Oriental, maam.[162]
xxxx
Q: When you were told that your husband is in good
hands, what was your reaction and what did you do?
A: May binasa kasi sya that my husband has
a parang meeting with other people na parang
mga terorista na mga tao. Tapos at the end of the
report is [sic] under custodial investigation.So I
told him Colonel, my husband is sick. He is diabetic at
nagmemaintain yun ng gamot. Pakisabi lang sa

naghohold sa asawa ko na bigyan siya ng gamot,

maam.[163]

certain whether he is with the AFP or PNP. He

has this serious case. He was charged of
terrorism because he was under surveillance
from January 2007 up to the time that he was
abducted. He told us that he was under
custodial investigation. As Ive said earlier, he
was seen under surveillance from January. He
was seen talking to Omar Patik, a certain
Santos of Bulacan who is also a Balik Islam and
charged with terrorism. He was seen carrying
boxes of medicines.Then we asked him how long
will he be in custodial investigation. He said until we
can get some information. But he also told us that he
cannot give us that report because it was a raw
report. It was not official, sir.

xxxx
Q: You mentioned that you received information that
Engineer Tagitis is being held by the CIDG in
Zamboanga, did you go to CIDG Zamboanga to verify
that information?
A: I did not go to CIDG Zamboanga. I went to Camp
Karingal instead. Enough na yun na effort ko because
I know that they would deny it, maam.[164]

On February 11, 2008, the respondent presented Mrs. Talbin to corroborate

Q: You said that he was reading a report, was that
report in document form, in a piece of paper or was it
in the computer or what?

her testimony that her husband was abducted and held under custodial
investigation by the PNP-CIDG Zamboanga City, viz:

A: As far as I can see it, sir, it is written in white bond

paper. I dont know if it was computerized but Im
certain that it was typewritten. Im not sure if it used
computer, fax or what, sir.

Q: You said that you went to Camp Katitipan in Davao

City sometime November 24, 2007, who was with you
when you went there?
A: Mary Jean Tagitis, sir.

Q: When he was reading it to you, was he reading it

line by line or he was reading in a summary form?

Q: Only the two of you?

A: Sometimes he was glancing to the report and talking to us, sir.[165]
A: No. We have some other companions. We were four at that time, sir.
xxxx
Q: Who were they?

Q: Were you informed as to the place where he was

being kept during that time?

A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.

Q: Were you able to talk, see some other officials at
Camp Katitipan during that time?
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.

A: He did not tell us where he [Tagitis] was

being kept. But he mentioned this Talipapao,
Sulu, sir.
Q: After that incident, what did you do if any?

Q: Were you able to talk to him?

A: Yes, sir.
Q: The four of you?

A: We just left and as Ive mentioned, we just waited

because that raw information that he was reading to
us [sic] after the custodial investigation, Engineer
Tagitis will be released. [Emphasis supplied][166]

A: Yes, sir.
Q: What information did you get from Col. Kasim during that time?
A: The first time we met with [him] I asked him if he
knew of the exact location, if he can furnish us the
location of Engr. Tagitis. And he was reading this
report. He told us that Engr. Tagitis is in good
hands. He is with the military, but he is not

Col. Kasim never denied that he met with the respondent and her
friends, and that he provided them information based on the input of an
unnamed asset. He simply claimed in his testimony that the informal letter
he received from his informant in Sulu did not indicate that Tagitis was in the

custody of the CIDG. He also stressed that the information he provided the

of a well thought of and prefabricated story.[170]

respondent was merely a raw report from barangay intelligence that still
needed confirmation and follow up as to its veracity.[167]

Based on these considerations and the unique evidentiary

situation

in

enforced

disappearance

cases,

we

hold

it

duly

To be sure, the respondents and Mrs. Talbins testimonies were far

established that Col. Kasim informed the respondent and her

from perfect, as the petitioners pointed out. The respondent mistakenly

friends, based on the informants letter, that Tagitis, reputedly a

characterized Col. Kasim as a military officer who told her that her husband is

liaison for the JI and who had been under surveillance since January

being abducted because he is under custodial investigation because he is

2007, was in good hands and under custodial investigation for

allegedly parang liason ng J.I. The petitioners also noted that Mrs. Talbins

complicity with the JI after he was seen talking to one Omar Patik

testimony imputing certain statements to Sr. Supt. Kasim that Engr. Tagitis is

and a certain Santos of Bulacan, a Balik Islam charged with

with the military, but he is not certain whether it is the PNP or AFP is not

terrorism. The respondents and Mrs. Talbins testimonies cannot simply be

worthy of belief, since Sr. Supt. Kasim is a high ranking police officer who

defeated by Col. Kasims plain denial and his claim that he had destroyed his

would certainly know that the PNP is not part of the military.

informants letter, the critical piece of evidence that supports or negates the
parties conflicting claims. Col. Kasims admitted destruction of this letter

Upon deeper consideration of these inconsistencies, however, what

effectively, a suppression of this evidence raises the presumption that the
appears clear to us is that the petitioners never really steadfastly disputed or
letter, if produced, would be proof of what the respondent claimed.[171] For
presented evidence to refute the credibility of the respondent and her
brevity, we shall call the evidence of what Col. Kasim reported to the
witness, Mrs. Talbin. The inconsistencies the petitioners point out relate, more
respondent to be the Kasim evidence.
than anything else, to details that should not affect the credibility of the
respondent and Mrs. Talbin; the inconsistencies are not on material points.
Given this evidence, our next step is to decide whether we can accept
[168] We note, for example, that these witnesses are lay people in so far as
this evidence, in lieu of direct evidence, as proof that the disappearance of
military and police matters are concerned, and confusion between the police
Tagitis was due to action with government participation, knowledge or
and the military is not unusual. As a rule, minor inconsistencies such as these
consent and that he was held for custodial investigation. We note in this
indicate

truthfulness

rather

than

prevarication[169]and

only

tend

to
regard that Col. Kasim was never quoted to have said that the custodial

strengthen their probative value, in contrast to testimonies from various

investigation was by the CIDG Zamboanga. The Kasim evidence only implies
witnesses dovetailing on every detail; the latter cannot but generate
government intervention through the use of the term custodial investigation,
suspicion that the material circumstances they testified to were integral parts
and does not at all point to CIDG Zamboanga as Tagitis custodian.

evidence taking into account the surrounding circumstances and the test of
Strictly speaking, we are faced here with a classic case of hearsay

reason that we can use as basic minimum admissibility requirement. In the

evidence i.e., evidence whose probative value is not based on the personal

present case, we should at least determine whether the Kasim evidence

knowledge of the witnesses (the respondent, Mrs. Talbin and Col. Kasim

before us is relevant and meaningful to the disappearance of Tagistis and

himself) but on the knowledge of some other person not on the witness stand

reasonably consistent with other evidence in the case.

(the informant).[172]
The evidence about Tagitis personal circumstances surrounded him
To say that this piece of evidence is incompetent and inadmissible

with an air of mystery. He was reputedly a consultant of the World Bank and a

evidence of what it substantively states is to acknowledge as the petitioners

Senior Honorary Counselor for the IDB who attended a seminar in

effectively suggest that in the absence of any direct evidence, we should

Zamboanga and thereafter proceded to Jolo for an overnight stay, indicated

simply dismiss the petition. To our mind, an immediate dismissal for this

by his request to Kunnong for the purchase of a return ticket to Zamboanga

reason is no different from a statement that the Amparo Rule despite its

the day after he arrived in Jolo. Nothing in the records indicates the purpose

terms is ineffective, as it cannot allow for the special evidentiary difficulties

of his overnight sojourn in Jolo. A colleague in the IDB, Prof. Matli, early on

that are unavoidably present in Amparo situations, particularly in extrajudicial

informed the Jolo police that Tagitis may have taken funds given to him in

killings and enforced disappearances. The Amparo Rule was not promulgated

trust for IDB scholars. Prof Matli later on stated that he never accused Tagitis

with this intent or with the intent to make it a token gesture of concern for

of taking away money held in trust, although he confirmed that the IDB was

constitutional rights. It was promulgated to provide effective and timely

seeking assistance in locating funds of IDB scholars deposited in Tagitis

remedies, using and profiting from local and international experiences in

personal account. Other than these pieces of evidence, no other information

extrajudicial killings and enforced disappearances, as the situation may

exists in the records relating to the personal circumstances of Tagitis.

require. Consequently, we have no choice but to meet the evidentiary

difficulties inherent in enforced disappearances with the flexibility that these
difficulties demand.

The actual disappearance of Tagitis is as murky as his personal

circumstances. While the Amparo petition recited that he was taken away by
burly men believed to be police intelligence operatives, no evidence

To give full meaning to our Constitution and the rights it protects, we

whatsoever was introduced to support this allegation. Thus, the available

hold that, as in Velasquez, we should at least take a close look at the

direct evidence is that Tagitis was last seen at 12.30 p.m. of October 30, 2007

available evidence to determine the correct import of every piece of evidence

the day he arrived in Jolo and was never seen again.

even of those usually considered inadmissible under the general rules of

The Kasim evidence assumes critical materiality given the dearth of

direct evidence on the above aspects of the case, as it supplies the gaps that

was relayed did not appear to have lifted a finger to pursue these aspects of
the case.

were never looked into and clarified by police investigation. It is the

evidence, too, that colors a simple missing person report into an enforced

More denials were manifested in the Returns on the writ to the CA

disappearance case, as it injects the element of participation by agents of the

made by the petitioners. Then PNP Chief Gen. Avelino I. Razon merely

State and thus brings into question how the State reacted to the

reported the directives he sent to the ARMM Regional Director and the

disappearance.

Regional Chief of the CIDG on Tagitis, and these reports merely reiterated the
open-ended initial report of the disappearance. The CIDG directed a search in

Denials on the part of the police authorities, and frustration on the

all of its divisions with negative results. These, to the PNP Chief, constituted

part of the respondent, characterize the attempts to locate Tagitis. Initially in

the exhaustion of all possible efforts. PNP-CIDG Chief General Edgardo M.

Jolo, the police informed Kunnong that Tagitis could have been taken by the

Doromal, for his part, also reported negative results after searching all

Abu Sayyaf or other groups fighting the government. No evidence was ever

divisions and departments [of the CIDG] for a person named Engr. Morced N.

offered on whether there was active Jolo police investigation and how and

Tagitis . . . and after a diligent and thorough research, records show that no

why the Jolo police arrived at this conclusion. The respondents own inquiry in

such person is being detained in the CIDG or any of its department or

Jolo yielded the answer that he was not missing but was with another woman

divisions. PNP-PACER Chief PS Supt. Leonardo A. Espina and PNP PRO ARMM

somewhere. Again, no evidence exists that this explanation was arrived at

Regional Director PC Superintendent Joel R. Goltiao did no better in their

based on an investigation. As already related above, the inquiry with Col.

affidavits-returns, as they essentially reported the results of their directives

Ancanan in Zamboanga yielded ambivalent results not useful for evidentiary

to their units to search for Tagitis.

purposes. Thus, it was only the inquiry from Col. Kasim that yielded positive
results. Col. Kasims story, however, confirmed only the fact of his custodial

The extent to which the police authorities acted was fully tested when

investigation (and, impliedly, his arrest or abduction), without identifying his

the CA constituted TASK FORCE TAGITIS, with specific directives on what to

abductor/s or the party holding him in custody. The more significant part of

do. The negative results reflected in the Returns on the writ were again

Col. Kasims story is that the abduction came after Tagitis was seen talking

replicated during the three hearings the CA scheduled. Aside from the

with Omar Patik and a certain Santos of Bulacan, a Balik Islam charged with

previously mentioned retraction that Prof. Matli made to correct his

terrorism. Mrs. Talbin mentioned, too, that Tagitis was being held at Talipapao,

accusation that Tagitis took money held in trust for students, PS Supt. Ajirim

Sulu. None of the police agencies participating in the investigation ever

reiterated in his testimony that the CIDG consistently denied any knowledge

pursued these leads.Notably, TASK FORCE TAGITIS to which this information

or complicity in any abduction and said that there was no basis to conclude

that the CIDG or any police unit had anything to do with the disappearance of

response by the Jolo police to Kunnongs initial reports of the disappearance,

Tagitis; he likewise considered it premature to conclude that Tagitis simply

to the responses made to the respondent when she herself reported and

ran away with the money in his custody. As already noted above, the TASK

inquired about her husbands disappearance, and even at TASK FORCE

FORCE notably did not pursue any investigation about

TAGITIS itself.

the personal

circumstances of Tagitis, his background in relation to the IDB and the

background and activities of this Bank itself, and the reported sighting of

As the CA found through TASK FORCE TAGITIS, the investigation was

Tagistis with terrorists and his alleged custody in Talipapao, Sulu. No attempt

at best haphazard since the authorities were looking for a man whose picture

appears to have ever been made to look into the alleged IDB funds that

they initially did not even secure. The returns and reports made to the CA

Tagitis held in trust, or to tap any of the assets who are indispensable in

fared no better, as the CIDG efforts themselves were confined to searching

investigations of this nature. These omissions and negative results were

for custodial records of Tagitis in their various departments and divisions. To

aggravated by the CA findings that it was only as late as January 28, 2008 or

point out the obvious, if the abduction of Tagitis was a black operation

three months after the disappearance that the police authorities requested

because it was unrecorded or officially unauthorized, no record of custody

for clear pictures of Tagitis. Col. Kasim could not attend the trial because his

would ever appear in the CIDG records; Tagitis, too, would not be detained in

subpoena was not served, despite the fact that he was designated as Ajirims

the usual police or CIDG detention places. In sum, none of the reports on

replacement in the latters last post. Thus, Col. Kasim was not then

record contains any meaningful results or details on the depth and

questioned. No investigation even an internal one appeared to have been

extent of the investigation made. To be sure, reports of top police

made to inquire into the identity of Col. Kasims asset and what he indeed

officials indicating the personnel and units they directed to investigate can

wrote.

never constitute exhaustive and meaningful investigation, or equal detailed

investigative
We glean from all these pieces of evidence and developments

a consistency in the governments denial of any complicity in the

reports

of

the

activities

undertaken

to

search

for

Tagitis. Indisputably, the police authorities from the very beginning failed to
come up to the extraordinary diligence that the Amparo Rule requires.

disappearance of Tagitis, disrupted only by the report made by Col.

Kasim to the respondent at Camp Katitipan. Even Col. Kasim, however,

CONCLUSIONS AND THE AMPARO REMEDY

eventually denied that he ever made the disclosure that Tagitis was under
custodial investigation for complicity in terrorism. Another distinctive trait
that

runs

through

these

developments

is

the

Based on these considerations, we conclude that Col. Kasims

governments

disclosure, made in an unguarded moment, unequivocally point to some

dismissive approach to the disappearance, starting from the initial

government complicity in the disappearance. The consistent but unfounded

denials

and

this

a leader of the Kurdish Workers Party (PKK) in the Silopi region. The petition

conclusion. For why would the government and its officials engage in their

was filed in southeast Turkey nearly six and one half years after the

chorus of concealment if the intent had not been to deny what they already

apprehension. According to the father, gendarmes first detained Abdulvahap

knew

thorough

and then transferred him to another detainment facility. Although there

investigation that at least credibly determined the fate of Tagitis be a feather

was no eyewitness evidence of the apprehension or subsequent

in the governments cap under the circumstances of the disappearance? From

detainment, the applicant presented evidence corroborating his

this perspective, the evidence and developments, particularly the Kasim

version of events, including a photocopy of a post-operation report

evidence, already establish a concrete case of enforced disappearance that

signed

the Amparo Rule covers. From the prism of the UN Declaration, heretofore

Turkey. The report included a description of Abdulvahap's arrest and the

cited and quoted,[173] the evidence at hand and the developments in this

result of a subsequent interrogation during detention where he was accused

case confirm the fact of the enforced disappearance and government

of being a leader of the PKK in the Silopi region. On this basis, Turkey was

complicity, under a background of consistent and unfounded government

held responsible for Abdulvahaps enforced disappearance.

of

the

the

haphazard

disappearance?

investigations

Would

not

cannot

an

but

in-depth

point

and

to

by

the

commander

of

gendarme

operations

in

Silopi,

denials and haphazard handling. The disappearance as well effectively placed

Tagitis outside the protection of the law a situation that will subsist unless
this Court acts.

Following the lead of this Turkish experience - adjusted to the

Philippine legal setting and the Amparo remedy this Court has
established, as applied to the unique facts and developments of this

This kind of fact situation and the conclusion reached are not without

case we believe and so hold that the government in general, through

precedent in international enforced disappearance rulings. While the facts are

the PNP and the PNP-CIDG, and in particular, the Chiefs of these

not exactly the same, the facts of this case run very close to those

organizations

of Timurtas v. Turkey,[174] a case decided by ECHR. The European tribunal in

accountable for the enforced disappearance of Tagitis.

together

with Col.

Kasim,

should

be

held

fully

that case acted on the basis of the photocopy of a post-operation report in

finding that Abdulvahap Timurtas (Abdulvahap) was abducted and later

The PNP and CIDG are accountable because Section 24 of Republic

detained by agents (gendarmes) of the government of Turkey. The victim's

Act No. 6975, otherwise known as the PNP Law,[175] specifies the PNP as the

father in this case brought a claim against Turkey for numerous violations of

governmental officewith the mandate to investigate and prevent crimes,

the European Convention, including the right to life (Article 2) and the rights

effect the arrest of criminal offenders, bring offenders to justice and assist in

to liberty and security of a person (Article 5). The applicant contended that

their prosecution. The PNP-CIDG, as Col. Jose Volpane Pante (then Chief of

on August 14, 1993, gendarmes apprehended his son, Abdulvahap for being

CIDG Region 9) testified, is the investigative arm of the PNP and is mandated

to investigate and prosecute all cases involving violations of the Revised

consideration of this Court at the end of the 4th quarter counted from the

Penal Code, particularly those considered as heinous crimes.[176] Under the

finality of this Decision.

PNP organizational structure, the PNP-CIDG is tasked to investigate all major

crimes involving violations of the Revised Penal Code and operates against

WHEREFORE,

premises

considered,

we DENY the

petitioners

organized crime groups, unless the President assigns the case exclusively to

petition for review on certiorari for lack of merit, and AFFIRM the decision of

the National Bureau of Investigation (NBI).[177] No indication exists in this

the Court of Appeals dated March 7, 2008 under the following terms:

case showing that the President ever directly intervened by assigning the
a.

Recognition that the disappearance of Engineer Morced

investigation of Tagitis disappearance exclusively to the NBI.

N. Tagitis is an enforced disappearance covered by the Rule
on the Writ of Amparo;
Given their mandates, the PNP and PNP-CIDG officials and members
b.

Without any specific pronouncement on exact authorship

were the ones who were remiss in their duties when the government
and responsibility, declaring the government (through the
completely failed to exercise the extral'>To fully enforce the Amparo remedy,
PNP and the PNP-CIDG) and Colonel Julasirim Ahadin Kasim
we refer this case back to the CA for appropriate proceedings directed at the
accountable for the enforced disappearance of Engineer
monitoring of the PNP and the PNP-CIDG investigations and actions, and the
Morced N. Tagitis;
validation of their results through hearings the CA may deem appropriate to
c.

Confirmation of the validity of the Writ of Amparo the

conduct. For purposes of these investigations, the PNP/PNP-CIDG shall initially

Court of Appeals issued;
present to the CA a plan of action for further investigation, periodically
d.

Holding the PNP, through the PNP Chief, and the PNP-

reporting the detailed results of its investigation to the CA for its

CIDG, through its Chief, directly responsible for the disclosure
consideration and action.On behalf of this Court, the CA shall pass upon: the
of material facts known to the government and to their
need for the PNP and the PNP-CIDG to make disclosures of matters known to
offices regarding the disappearance of Engineer Morced N.
them as indicated in this Decision and as further CA hearings may indicate;
Tagitis, and for the conduct of proper investigations using
the petitioners submissions; the sufficiency of their investigative efforts; and
extraordinary
submit

to

this

Court

a quarterly

report containing

its

actions

diligence,

with

the

obligation

to

show

and
investigation results acceptable to this Court;

recommendations, copy furnished the petitioners and the respondent, with

e.

Ordering Colonel Julasirim Ahadin Kasim impleaded in

the first report due at the end of the first quarter counted from the finality
this case and holding him accountable with the obligation to
of this Decision. The PNP and the PNP-CIDG shall have one (1) full year to
disclose information known to him and to his assets in
undertake their investigation. The CA shall submit its full report for the

f.

relation with the enforced disappearance of Engineer Morced

nature of Amparo cases and their varying attendant circumstances, these

N. Tagitis;

directives particularly, the referral back to and monitoring by the CA are

Referring this case back to the Court of Appeals for

appropriate proceedings directed at the monitoring of the

specific to this case and are not standard remedies that can be applied to
every Amparo situation.

PNP and PNP-CIDG investigations, actions and the validation

The dismissal of the Amparo petition

with respect to General

of their results; the PNP and the PNP-CIDG shall initially

Alexander Yano, Commanding General, Philippine Army, and General Ruben
present to the Court of Appeals a plan of action for further
Rafael,

Chief,

Anti-Terrorism

Task

Force

Comet,

Zamboanga

City,

is

investigation, periodically reporting their results to the Court

hereby AFFIRMED.
of Appeals for consideration and action;
g.

Requiring the Court of Appeals to submit to this Court a

SO ORDERED.

quarterly report with its recommendations, copy furnished

the incumbent PNP and PNP-CIDG Chiefs as petitioners and
[G.R. No. 153911. December 10, 2004]
the respondent, with the first report due at the end of the first
quarter counted from the finality of this Decision;
h.

MELANIO MALLARI y LIBERATO, petitioner,

PHILIPPINES, respondent.

vs.

PEOPLE

OF

THE

The PNP and the PNP-CIDG shall have one (1) full year to
undertake their investigations; the Court of Appeals shall
submit its full report for the consideration of this Court at the
end of the 4th quarter counted from the finality of this
Decision;

DECISION
PANGANIBAN, J.:
To warrant conviction based on circumstantial evidence, the totality of
the circumstances must eliminate beyond reasonable doubt the possibility of
innocence; otherwise, the accused must be acquitted.

These directives and those of the Court of Appeals made pursuant to

this Decision shall be given to, and shall be directly enforceable against,
whoever may be the incumbent Chiefs of the Philippine National Police and
its Criminal Investigation and Detection Group, under pain of contempt from
this Court when the initiatives and efforts at disclosure and investigation
constitute less than the extraordinary diligence that the Rule on the Writ
of Amparo and the circumstances of this case demand. Given the unique

The Case

Before us is a Petition for Review[1] on Certiorari under Rule 45 in

relation to Rule 125 of the Rules of Court, seeking to reverse, set aside, nullify
and/or modify the December 18, 2001 Decision[2] of the Court of Appeals
(CA) in CA-GR CR No. 18051. The dispositive portion of that Decision states:
WHEREFORE, foregoing premises considered, the decision appealed from
is MODIFIED. Accused-appellants Melanio Mallari and Zaldy Bontia, as well
as Leonardo Bontia are found guilty of Attempted Murder punishable under
Article 248 in relation to Article 6 of the Revised Penal Code for which they

are SENTENCED to four (4) years and two (2) months of prision
correccional, as minimum, to ten (10) years of prision mayor, as maximum.
The award with respect to damages and costs stand.[3]
In its May 14, 2002 Resolution,[4] the CA denied petitioners Motion for
Reconsideration of the assailed Decision.

The Facts

Version of the Prosecution

The factual background of the case, as related by the Court of

Appeals[5] based on prosecution evidence, is as follows:
The records show that private complainant Erlinda Boyose was a teacher at
the Bustamante High School, Davao City from 1977 up to 1989. At the start,
she had a good working relationship with the school principal, appellant
Melanio Mallari. However, their relationship turned sour when she began to
question appellant Mallari on alleged unaccounted school funds.
On June 29, 1989 at about 9:00 oclock in the morning, while Boyose was at
the Guidance Office, a man approached her and asked if he can still enroll his
nephew. As enrollment was already closed, she advised the man to see
Mallari, who is the school principal.
Thereafter, Boyose went to her classroom. About twenty minutes later, the
man approached her again. Meeting him by the door, she asked the man if he
was able to talk to Mallari. The man answered that the principal was not in
his office. So, she advised the man to just return the following day.
In the afternoon, Boyose rode on a jeepney bound for Sasa, Davao. She
observed that the man who talked to her in the morning was also in the same
jeepney. She then inquired from him if he was able to talk to the principal
regarding the enrollment of his nephew but the man just ignored her.
While they were near Km. 13, Panacan, Davao City, the said man drew and
pointed a gun at Boyoses temple. Boyose heard two successive clicking
sounds of the gun but it did not fire. She heard the man utter in the Cebuano
dialect, Unsa man ni, dili man ni moboto, meaning Whats this, this will not
fire. She then grabbed the gun and grappled for its possession. But she
failed. Eventually, she was able to get out of the jeepney and ran away but
the man followed her and shot her repeatedly.
Boyose was hit in the lower mouth and at her back. She shouted for help. A
man helped her and brought her to the San Pedro Hospital where she was
treated and confined.
Policeman Remo Pagal of the Sasa Police Station was one of those who went
to the crime scene on June 29, 1989 to investigate. But nothing came out of

it. He was only able to get the description of the gunman the following day
when he interviewed the victim at the hospital.
The police investigators were able to get the lead when a certain Andy
Magdadaro went to the Sasa Police Station and told Policeman Pagal that he
knew something about the shooting of Erlinda Boyose. He told the said police
investigator that he was asked by one Edwin Amparado to kill Boyose but the
plan was not carried out. He pointed to accused-appellant Zaldy Bontia as the
man who hired Amparado to look for a triggerman.
Thus, Edwin Amparado was picked up by the police. While in the police
station where he was brought, he told the police investigators that in one
occasion, he went to the house of appellant Mallari and the latter asked him
to kill Boyose who used to be his neighbor at Doa Pilar Village but the same
did not push thru. He later offered this job to Andy Magdadaro who was his
neighbor in Agdao. They talked about the plan to kill Boyose and Magdadaro
was only waiting for his go-signal. At the police station, he executed an
affidavit regarding the offer of Mallari to kill Boyose.
On August 1, 1989, at around 3:00 p.m., Pagal together with other policemen
from the Sasa Police Station arrested appellant Zaldy Bontia near the house
of accused-appellant Mallari. Zaldy allegedly admitted participation in the
incident and implicated his brother Leonardo Bontia as the gunman. The
police lost no time in going to Asuncion, Davao del Norte to arrest Leonardo
Bontia.
Leonardo Bontia was brought to the Sasa Police Station at about 2:00 p.m. of
August 2, 1989. Later that day, a police line-up was conducted and Boyose
identified accused Leonardo Bontia as the gunman. She likewise identified
accused-appellant Zaldy Bontia to be the constant companion and protg of
accused-appellant Mallari.
When the custodial investigation was about to start, the Bontia brothers were
apprised by police investigators Anastacio Naive of their rights under the
Constitution. When asked by Naive if they had a lawyer to assist them, they
told him that they had none. Naive then stopped the investigation and called
the PAO office for assistance. At around 5:00 p.m. on that day, Atty. Jonathan
Jocum,**** a PAO lawyer arrived. Pfc. Naive then asked the Bontia brothers if
they wanted to be represented by Atty. Jocum and they said they are
agreeable.
During the custodial investigation, Leonardo Bontia admitted to be the
gunman. He pointed to appellant Mallari as the one who hired him to kill
Boyose. On the [other] hand, Zaldy Bontia admitted to have been hired by
Mallari to look for a gunman to kill Erlinda Boyose and that he was the one
who recommended to Mallari his brother Leonardo Bontia to do the job for a
fee.
Melanio Mallari, Leonardo Bontia and Zaldy Bontia, were accordingly charged
by Asst. City Prosecutor Jose Emmanuel M. Castillo of the crime of Frustrated
Murder, in an Information alleging
That on or about June 29, 1989, in the City of Davao, Philippines and within
the jurisdiction of this Honorable Court, the above-mentioned accused
Melanio Mallari, directly interested in the death of Erlinda P. Boyose,
conspiring, confederating and helping one another, accused Melanio Mallari
induced his co-accused Leonardo Bontia and Zaldy Bontia, the latter
convincing his brother Leonardo Bontia of the plan to kill said Erlinda P.

Boyose by giving price and/or offering a reward to kill said Erlinda P. Boyose
and which price and/or offer was accepted by said Leonardo Bontia and Zaldy
Bontia; that in pursuance of said conspiracy said accused Leonardo Bontia,
with treachery and evident premeditation, willfully, unlawfully and feloniously
assaulted, and shot with a caliber 22 Magnum homemade revolver and hit
said Erlinda Boyose, thereby inflicting upon her the following, to wit:
AVULSION. LOWER LIP AND NAPE SECONDARY TO GUNSHOT WOUND WITH
DISPLACEMENT OF TEETH ON MANDIBLE; FOREIGN BODY, G-4-5 LEVEL which
injuries would ordinarily cause the death of the said Erlinda Boyose, thus
performing all the acts of execution which should have produced the crime of
murder as a consequence, but nevertheless did not produce it by reason of
causes independent of their will, that is the timely shout and cry for help of
Erlinda Boyose that as a result of which immediate assistance was had from a
member of a coast guard and by the timely and able medical assistance
rendered to the said Erlinda Boyose which prevented her death.[6]
During their arraignment,[7] all the accused pleaded not guilty.
Thereafter, herein Petitioner Mallari moved for a separate trial, which was
granted by the trial court in its Order dated September 18, 1990.
In his separate trial, Mallari did not present evidence to establish his
innocence or to refute the prosecutions evidence against him. Instead, he
moved for dismissal by way of demurrer to evidence which, however, the trial
court denied in its Order dated July 2, 1992. Thereafter, although given ample
time and granted numerous postponements over about a year, petitioner
failed to present any witness in his favor.
Even in its Memorandum, the defense did not present its version of
facts.

Ruling of the Trial Court

he can receive a regular salary from the government.

3. Leonardo Bontia is the older brother of Zaldy who at that time the job was
offered to him by Mallari to kill Boyose was in dire need of money having
eight (8) children and wife to support.
4. Leonardo Bontia when confronted by the victim at the police station readily
admitted he shot Erlinda Boyose because of the money he hopes to receive
from Mallari afterwards.
5. Zaldy Bontia gave P900.00 to Leonardo Bontia which came from Mallari so
Leonardo can hide.
6. That Zaldy Bontia likewise confessed of his participation of the crime after
being confronted by the victim at the police station.
7. Both Leonardo and Zaldy Bontia voluntarily executed an extra-judicial
statement regarding their complicity to the crime.
8. A letter marked exh. I addressed to the victim Erlinda Boyose which clearly
came from Leonardo Bontia because it contained narration of events anent
the crime and full of explicit details which only the author of the shooting has
personal knowledge of and asking for forgiveness.[8]
Thus, the RTC disposed as follows:
WHEREFORE, the prosecution having established the guilt of accused Melanio
Mallari as principal by inducement, Leonardo Bontia as principal by direct
participation and Zaldy Bontia as principal by indispensable cooperation
beyond reasonable doubt, the court finds the aforesaid three accused guilty
of the crime of frustrated murder as charged in the information. They are
hereby sentenced to suffer the indeterminate penalty of 4 years 2 months
and 20 days of prision correccional as the minimum to 11 years 6 months
and 21 days of prision mayor as the maximum and to solidarily indemnify the
victim Erlinda Boyose in the amount of P15,000.00 representing loss of
income, P8,000.00 representing hospital and medical expenses, P20,000.00
as attorneys fees and P50,000.00 as moral damages and to pay the cost.[9]

After evaluating the evidence on record, the RTC concluded that there
was conspiracy among the three accused, although Leonardo Bontia was
alone when he shot Erlinda Boyose. It held herein Petitioner Mallari liable as
principal by inducement, Leonardo Bontia as principal by direct participation,
and Zaldy Bontia as principal by indispensable cooperation, based on the
following circumstances supposedly establishing their complicity:

Ruling of the Court of Appeals

1. Accused Mallari has an axe to grind against victim Boyose therefore, has
an interest of silencing her because of her persistent inquiries regarding the
use or misuse of school funds under the custody of Mallari as principal of
Bustamante Barangay High School. This is the motive for the shooting of
Erlinda Boyose.

The appellate court was convinced that petitioner was the one who had
induced the Bontia brothers to kill Boyose, despite the absence of direct
evidence showing his participation in the crime charged. It ratiocinated that
the accused could be convicted on the basis of circumstantial evidence.
There was more than one circumstance, the facts from which the inferences
were derived had been proven, and the combination of all the circumstances
was such as to produce a conviction beyond reasonable doubt.

2. The contact man Zaldy Bontia is beholden to Melanio Mallari being a protg
and a man Friday of the latter who exercised moral ascendancy considering
that he promised Zaldy a steady government job and have been extending
cash advances in the form of allowances to tide him over till such time that

On appeal, the CA essentially upheld the findings and conclusions of the

trial court, except as to the stage of the crime committed.

It further held that, in the separately held trial of petitioner, there was no

need for the prosecution to offer the evidence adduced during the trial of the
Bontia brother[s,] considering that only one criminal Complaint had been filed
against all the accused. Moreover, the issue could not be raised for the first
time on appeal.
Hence, as stated earlier, the CA modified the trial courts disposition and
convicted the accused-appellants of attempted murder.

This Courts Ruling

The Petition is meritorious. The prosecution failed to adduce the

quantum of evidence needed for a criminal conviction.

This Petition[10] was filed only by the alleged mastermind, Melanio

Mallari.

First Issue:
Evidence Proffered in Separate Trial

Issues

Petitioner alleges that the trial and the appellate courts convicted him on
the basis mainly of evidence adduced at the separately held trial of his coaccused. He submits that absent such evidence, there would have been no
sufficient proof to establish his guilt beyond reasonable doubt.

In his Memorandum, petitioner submits the following issues for the

Courts consideration:
I.
Whether the questioned CA Decision and the refusal by the Court of Appeals
to reconsider it in its CA Resolution [are in] accord with the circumstantial
evidence rule and the controlling jurisprudence thereon;
II.
Whether the questioned CA Decision and the refusal by the Court of Appeals
to reconsider it in its CA Resolution, upholding the trial courts admission of an
irrelevant, immaterial and improper evidence (coming from Edwin Amparado)
which was among the basis for conviction was in accordance with law and
jurisprudence;
III.
Whether the questioned CA Decision and the refusal by the Court of Appeals
to reconsider it in its CA Resolution, correctly sustained the trial courts
consideration of an evidence given in a separately conducted trial (not as
against the petitioner) which was among the basis for conviction; and
IV.
Whether the questioned CA Decision and the refusal by the Court of Appeals
to reconsider it in its CA Resolution, which failed to tackle all the issues raised
on appeal was consistent with due process.[11]
In brief, the issues raised before this Court will be discussed seriatim as
follows: (1) whether the trial and the appellate courts erred in taking
cognizance of evidence given in the separate trial of petitioners co-accused;
(2) whether there was sufficient circumstantial evidence to establish
petitioners guilt beyond reasonable doubt; and (3) whether the Court of
Appeals failed to accord due process to petitioner.

In its Memorandum, the Office of the Solicitor General (OSG)

simplistically contends that in the trial against petitioner, there was no need
to offer anew the evidence separately proffered against the Bontias, because
the case [filed against them] involved only one case number.[12] Respondent
fails to cite jurisprudence in support of such logic or to give even a
semblance of a sound rationale therefor.
As a rule, a court should not take judicial notice of evidence presented in
other proceedings, even if these have been brought before it or have been
heard by and are actually pending before it. This rule is especially true in
criminal cases, in which the accused have the constitutional right to confront
and cross-examine the witnesses presented against them.[13] Moreover,
when a separate trial is granted, the testimony of the accused imputing the
crime to the co-accused is not admissible against the latter, who has had no
opportunity to cross-examine the witnesses.[14]
Parenthetically, the object of conducting a separate trial would be
rendered naught if evidence proffered at the trial of one of the accused would
be considered likewise adduced in the distinct trial of the other accused.
What then would be the rationale for requesting and being granted separate
trial? While the grant of separate trials for persons jointly accused of an
offense is discretionary upon the court, the motions therefor are usually
found meritorious when antagonism is apparent in the respective defenses of
the accused.[15]
In the case before us, petitioners co-accused -- Zaldy and Leonardo
Bontia -- executed, prior to trial, their respective extrajudicial confessions
admitting their complicity in the crime charged and implicating petitioner as
the mastermind. On the other hand, in denying their accusations, petitioner
stood his ground and refused to execute a statement. Precisely, their
antagonistic defenses must have impelled him to seek, and the trial court to
grant him, a separate trial.
Records show, however, that most of the prosecution witnesses

presented during the trial of the Bontias were likewise presented during the
separate trial of petitioner. Testifying against him on December 20, 1990, was
Pfc. Danilo Carvajal. The latter said that, as police investigator of the Sasa
Patrol Station, he had conducted an investigation of the shooting incident
involving Erlinda Boyose, leading to the arrest of Zaldy and Leonardo Bontia
and Melanio Mallari. He had allegedly taken the supposed extrajudicial
confession of Leonardo Bontia who, after being apprised of his constitutional
rights, voluntarily executed his Sworn Statement in the presence of an
inquest lawyer of the Public Attorneys Office (PAO).[16]

reading the letter, Mallari told her sarcastically that he had been to so many
schools, but that it was only she who had written to him in such a manner; he
warned her that she made a mistake in writing this [letter].

On the same day, Atty. Jonathan Jocom testified that he was the PAO
lawyer who had assisted the Bontias while each of them was under custodial
investigation on August 2, 1989; that prior to their investigation, he had
apprised them of their constitutional rights to counsel and not to be
compelled to make any statement against their interests; and that despite his
repeated warnings about the negative consequences of their statements,
they nevertheless voluntarily executed and signed their statements
confessing to the crime.[17]

While the instant case was pending trial, Leonardo Bontia supposedly
wrote her a letter[23] asking for forgiveness for the crime [he] had done
against [her,] saying that he was in dire need of money at the time.
Allegedly, he had to go to Mallari, hoping to be able to ask for some, but the
latter instead dared [him] to discipline Mrs. Boyose, gave [him] food and
drinks until [he] got drunk, and also promised to give him money and a job.
Because the accused was drunk and, thus, out of his mind, he supposedly
gave in to the prodding of Mallari.

On April 19, 1991, Pfc. Anastacio Naive testified that he had also
investigated the shooting incident; interviewed the victim (Erlinda Boyose)
and the witness (Edwin Amparado) who was an alleged friend of petitioner;
and that he had reduced the statement of Zaldy Bontia into writing after
informing the latter of his constitutional rights in the presence of Atty. Jocom.
Zaldy named Melanio Mallari as the mastermind who had asked him to look
for a triggerman who would eliminate Boyose.[18]

Only two other witnesses against the Bontias were not presented against
Petitioner Mallari. They were (1) Pfc. Remo Pagal, who had also participated in
the investigation and allegedly received an informers tip that led to their
arrest; and (2) Dr. Roberto Alabado, who had treated the injuries of the
victim.[24]

The testimonies of Policemen Antonio Ysulat and Victoriano Padilla were

admitted by herein petitioner, according to the stipulation of his counsel.
[19] Ysulat was the Sasa Patrol Stations exhibit custodian, to whom the gun
that had allegedly been used in the shooting incident was turned over. Padilla
was the desk officer who had recorded the Complaint regarding the incident
on June 29, 1989, the appearance of Erlinda Boyose, her identification of
Zaldy and Leonardo Bontia from a police lineup, and the appearance of
Petitioner Mallari at the patrol station on August 2, 1989.
Erlinda stated[20] that she was a classroom teacher and guidance
counselor of Bustamante High School, where petitioner was the principal from
1983 to 1989; and that initially, they had a good working relationship, which
turned sour when she began inquiring about school funds that had remained
unaccounted for. On March 22, 1989, she personally handed over to him a
letter[21] she had written, reminding him of, among other things, some basic
needs of the school that had remained unmet, such as blackboards, chairs
and comfort rooms for the students; and his failure, as the school
administrator in the past five years, to account for fees collected from
students.
She then admonished him in that letter for his moral indiscretions in
office;[22] recommended that he conduct dialogues/discussions with
teachers, students and their parents, to disclose financial reports so as to
avoid suspicions of fund misuse; and, finally, apologized for having to bring
up all these matters, but expressed hope that it would all be for the
improvement of the school administration. Boyose further testified that after

Boyose also attested to the incidents of that fateful day, June 29, 1989,
which culminated in the attempt on her life by Leonardo Bontia. He had
asked her earlier that day in school about how to enroll his nephew at the
Bustamante High School. Because of the gunshot injuries that she sustained,
she had to undergo hospitalization for which she incurred expenses.

The remaining witnesses at the separate trial of the Bontias were

petitioners co-accused, Zaldy and Leonardo Bontia. It is worth noting that
despite their earlier confessions -- as attested to by Witnesses Carvajal,
Jocom and Naive -- the Bontia brothers, assisted by counsel, entered a plea of
not guilty. Moreover, during their trial, the brothers denied committing the
crime; admitted to having signed their respective statements; but alleged
that these had been procured without the assistance of counsel and with the
police officers use of force, intimidation and violence.[25]
After reading the testimonies of Pagal, Alabado and the two Bontias and
reviewing the rulings, we find that the trial and the appellate courts could not
have taken those testimonies into substantial consideration, if at all, in
convicting the petitioner. In fact, the testimonies of Pagal and Alabado were
merely corroborative of those of the other witnesses who were presented
during petitioners trial. On the other hand, the declarations of Zaldy and
Leonardo Bontia in open court were, on their face, favorable to him. And the
lower courts cognizance of those declarations would not have prejudiced him,
as petitioner asserts. However, despite the denials by the Bontias, the lower
courts still found them, including petitioner, guilty.
We therefore find no basis at all for the allegation of petitioner that the
trial and the appellate courts convicted him on the ground of evidence
adduced at his co-accuseds separate trial, but supposedly not during his own
trial.

Second Issue:
Sufficiency of Circumstantial Evidence

A close perusal of the testimonies of the witnesses presented against

petitioner reveals the absence of direct evidence establishing his criminal
participation. Nonetheless, in the absence of direct proof, a conviction may
still be based on circumstantial evidence. But to warrant such conviction, the
following requisites must concur: (1) there is more than one circumstance, (2)
the facts from which the inferences are derived are proven, and (3) the
combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt.[26]
Corollary to the constitutional precept that the accused is presumed
innocent until the contrary is proved, a conviction based on circumstantial
evidence must exclude each and every hypothesis consistent with innocence.
[27] Hence, if the totality of the circumstances eliminates beyond reasonable
doubt the possibility of innocence, conviction is proper; otherwise, the
accused must be acquitted.[28]
With the above jurisprudential premises in mind, we examined the
circumstances on the basis of which petitioner had been found guilty beyond
reasonable doubt and, consequently, convicted.
According to the CA, the following circumstances were sufficient to
establish the criminal culpability of the three accused (Zaldy and Leonardo
Bontia, as well as Petitioner Mallari):
x x x. First, appellant Mallari had an axe to grind against the victim because
of her persistent inquiries regarding the use or misuse of school funds under
the custody of Mallari as principal of Bustamante Barangay High School. This
fact shows the motive of Mallari in silencing her. Second, Zaldy Bontia, the
person who looked for a killer, is beholden to Melanio Mallari, considering that
the latter had promised him a steady government job and had been giving
cash advances in the form of allowance to tide him over till such time that he
could receive a regular salary from the government. Third, Leonardo Bontia is
the older brother of Zaldy. When the job to kill Boyose was offered by Mallari
to Leonardo Bontia, the latter immediately acceded considering that he was
in dire need of money having eight (8) children and a wife to support. Thus,
when confronted by the victim at the police station, he readily admitted that
he shot Erlinda Boyose because of the consideration he hoped to receive
from Mallari afterwards. Fourth, the money in the amount of P900.00 which
Zaldy Bontia gave to his brother Leonardo so that he can hide came from
Mallari. Fifth, the confession made by Zaldy Bontia concerning his
participation to the crime after he was confronted by the victim at the police
station. Sixth, both Leonardo and Zaldy Bontia voluntarily executed extrajudicial statements regarding their involvement in the crime. In their
respective extra-judicial confession, they pointed to Mallari as the person who
induced them to kill Boyose. Finally, the letter of Leonardo Bontia marked as
Exhibit I, addressed to the victim asking for forgiveness, contained narration
of events with full of explicit details regarding the commission of the crime.
[29]

In its Memorandum,[30] the OSG substantially repeats the above

circumstances in support of the conviction of petitioner.
The first circumstance -- that Mallari had an axe to grind against the
victim because of her persistent inquiries regarding the use or misuse of
school funds -- appears to be a conclusion based merely on the impression of
the victim herself. Other than the one letter[31] she wrote to petitioner, only
her self-serving statement supported her allegation that she had questioned
persistently (several times) his supposed administrative malpractices as
school principal.
Be that as it may, a reading of that letter, which was indeed replete with
denigrating statements against him, probably served as a motive for a
reprisal from him, if its contents were not treated as constructive criticism. To
the extent that it tends to establish motive, this circumstance may be taken
into consideration in the overall assessment of the evidence against him.
The second to the fourth circumstances[32] are not directly established
by the evidence against petitioner. None of the prosecution witnesses
testified thereon. A scrutiny of the records of the case reveals that those
circumstances were derived from the Written Statements[33] that had been
made by petitioners co-accused and presented when Prosecution Witnesses
Carvajal and Naive testified. These witnesses were the police investigators
who had reduced into writing the statements of Leonardo and Zaldy Bontia at
the time of the arrest of the latter two.
Section 36 of Rule 130 of the Rules of Court provides that witnesses can
testify only with regard to facts of which they have personal knowledge;
otherwise, their testimonies would be inadmissible for being hearsay.[34] In
the present case, neither of the said witnesses had personal knowledge of
the second to the fourth circumstances considered by the appellate court, or
of the rest of the statements made by the declarants in their respective
Written Statements. The witnesses merely attested to the voluntariness and
due execution of the Bontias respective extrajudicial confessions. Thus,
insofar as the substance of those confessions is concerned, the testimonies of
the police witnesses are mere hearsay.[35]
The fifth and the sixth circumstances refer to the aforementioned
Written Statements of petitioners co-accused who did not, however, testify
against him. Well-settled is the rule that extrajudicial declarations are
inadmissible in evidence against the declarants co-accused.[36] The
admission by the court of such declarations violates the incriminated persons
right to due process. This principle holds if, as in the case before us, the
declarants fail to take the witness stand and thereby deny the accusedpetitioner the fundamental right to confront and cross-examine them face-toface, in order to test their truthfulness and credibility.
True, there are exceptions to this rule, such as when the confession is
used as circumstantial evidence to show the probability of the participation of
the co-accused in the crime, or when the confession is corroborated by other
pieces of evidence.[37] In such instances, the significance of the confession
comes to the fore, but only in relation to the other circumstantial evidence

establishing the guilt of the person incriminated. In the instant case, the
merits of the fifth and the sixth circumstances mentioned by the appellate
court depend, therefore, on the strength of the other circumstantial evidence
against petitioner.
But, as discussed so far, just the first circumstance, establishing
petitioners motive, may be given due weight. Only one more remains to be
considered, as the three other circumstances have been discounted as
hearsay.
This last circumstance cited by the appellate court pertains to a
supposed letter of Leonardo Bontia addressed to the victim, containing
explicit details regarding the commission of the crime and asking for
forgiveness. The latter was presented as part of the testimony of the victim,
Erlinda Boyose. However, Leonardo was not presented in court to identify it.
No other witness testified as to its genuineness or as to the fact that it had
personally and voluntarily been written by him. Incidentally, Boyose received
it through the mail, and no one ever attested that it had in fact been written
and sent by the same Leonardo Bontia, petitioners co-accused.[38]
As we have said earlier, witnesses can testify only with regard to facts of
which they have personal knowledge. Testimonial or documentary evidence is
hearsay if it is based, not on the personal knowledge of the witness, but on
the knowledge of some other person not on the witness stand. Consequently,
hearsay evidence -- whether objected to or not -- has no probative value
unless the proponent can show that the evidence falls within any of the
exceptions to the hearsay rule, as provided in the Rules of Court.[39] Clearly,
none of the exceptions apply to the present case.
Thus, an unverified and unidentified private document cannot be
accorded probative value. It is precluded because the party against whom it
is presented is deprived of the right and opportunity to cross-examine the
person to whom the statements or writings are attributed. Its executor or
author should be presented as a witness to provide the other party to the
litigation the opportunity to question its contents. Being mere hearsay
evidence, failure to present the author of the letter renders its contents
suspect and of no probative value.[40]
There is another circumstance, not mentioned by the appellate court but
advanced by the Office of the Solicitor General: that Prosecution Witness
Edwin Amparado declared that he had been contacted by petitioner to kill
Boyose. Let us first recall the testimony of that witness, as related by the trial
court:
On December 11, 1990, Edwin Amparado testified that he personally knows
accused Mallari because he studied at F. Bangoy Barangay High School where
Melanio Mallari was the principal from 1983 to 1984, that he also knows
Zaldy Bontia, that the last time he saw Zaldy Bontia was in February 1989 in
the house of Melanio Mallari located at Juan Luna, corner Chavez Streets, that
he went to the house of Melanio Mallari to pledge his electric fan, that
Melanio Mallari asked him to kill Mrs. Boyose who used to be his neighbor at
Doa Pilar Village but nothing came out of it, that later he heard over the radio
that Mrs. Boyose was shot, that he knows Andy Magdadaro who was his

neighbor in Agdao, that they talked about the plan to kill Mrs. Boyose, that
Andy Magdadaro was only waiting for his go-signal, that he executed an
affidavit regarding the offer of Melanio Mallari to kill Mrs. Boyose. He said on
cross-examination that he did not feel disgusted when Mallari asked him to
kill Mrs. Boyose, that he thought of killing Mrs. Boyose and relayed the offer
to Andy Magdadaro the same job, that he is close to Mr. Mallari, that the job
of killing Mrs. Boyose was the only illegal job offered to him by Melanio
Mallari, that during that time he needed money because his wife was
pregnant, that he relayed the offer to Andy Magdadaro because he is a rebel
returnee.[41]
It appears that the prosecution presented Amparado merely to show that
petitioner had criminal intent against the victim. The testimony of the
witness, however, concerned petitioners alleged proposal to him (not to the
Bontias) to kill Boyose -- an act that, by his own admission, did not
materialize. Even if indeed petitioner made such a proposal, it did not
necessarily mean that it was also made to the Bontias, absent any strong
supporting evidence. The witness does not in fact appear privy to any
conspiracy between petitioner and the Bontias.
Thus, insofar as the actual attempt on the life of Boyose is concerned,
Amparados testimony is clearly irrelevant or of no probative weight. It does
not tend to establish, to any reasonable degree, the probability of a fact in
issue[42] -- whether petitioner had induced or conspired with the Bontias to
kill Boyose. Hence, the testimony is worthless in establishing the guilt of
petitioner of the crime charged against him.
In the final analysis, other than the victims letter to petitioner tending to
establish his ill motive, there is hardly any evidence to corroborate his coaccuseds extrajudicial confessions (later recanted) or to establish the
probability of his actual participation (by inducement) in the commission of
the crime. Considering that the strength of the prosecution evidence against
him falls short of the required quantum of proof beyond reasonable doubt, his
constitutional right to be presumed innocent must prevail.
The Court has repeatedly held that when the circumstances shown to
exist yield at least two inferences -- one of which is consistent with the
presumption of innocence and the other with the finding of guilt -- the Court
must acquit the accused, because the evidence does not then fulfill the test
of moral certainty or suffice to support a judgment of conviction.[43]
Consistent with the above principles, and in view of the dearth of
evidence to prove his guilt beyond reasonable doubt, petitioner must be
acquitted.

Third Issue:
Due Process

Petitioner also claims that he was denied due process by the Court of
Appeals, because it allegedly failed to tackle all the issues raised in his
appeal brief.
While it is no longer necessary to resolve this issue in view of our
disposition of the second one, it is enough to say that petitioner has
neglected to substantiate this allegation in his Petition. He did not, in fact,
even care to point out -- much less discuss -- what issues the appellate court
had failed to resolve. In any event, a wrong disposition by the court is not
tantamount to denial of due process.
WHEREFORE, the assailed Decision insofar as it pertains to Petitioner
is REVERSED and SET ASIDE. On reasonable doubt, Petitioner Melanio
Mallari y Liberato is ACQUITTED. The director of the Bureau of Corrections is
directed to cause the immediate release of petitioner, unless the latter is
being lawfully held for another cause; and to inform the Court of the date of
his release, or the reasons for his continued confinement, within ten days
from notice. No costs.
SO ORDERED.

G.R. No. L-41166 August 25, 1976

PEOPLE OF THE PHILIPPINES, AMELIA K. DEL ROSARIO and DIONISIO
CERBO, petitioners,
vs.
HON NUMERIANO G. ESTENZO Judge, Court of First Instance of Iloilo,
and GREGORIO OJOY respondents.
Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General
Octavio R. Ramirez and Solicitor Mariano M. Martinez for petitioner People of
the Philippines.
Enojas & Associates and Deogracias K. del Rosario for petitioners Amelia K.
del Rosario and Dionisio Cerbo.
Sixto P. Demaisip for private respondent.

ANTONIO, J.:p
Certiorari and prohibition with prayer for preliminary injunction to nullify the
Order of respondent Judge, dated July 30, 1975, sustaining the procedure
proposed by defense counsel that, in lieu of the testimony of the witnesses
for the accused on direct examination in open court, he was filing their
affidavits, subject to cross-examination by the prosecution. Per Resolution
dated August 22, 1975, this Court issued a temporary restraining order
enjoining the respondent Judge from enforcing the questioned Order.
In Criminal Case No. 2891, entitled "People of the Philippines, plaintiff, versus
Gregorio Ojoy, accused", of the Court of First Instance of Iloilo, Branch III,
after the accused himself had testified in his defense, his counsel manifested
that for his subsequent witnesses he was filing only their affidavits subject to

cross-examination by the prosecution on matters stated in the affidavits and

on all other matters pertinent and material to the case. Private prosecutor
Atty. Amelia K. del Rosario, one of the petitioners here, objected to the
proposed procedure but this notwithstanding, respondent Judge gave his
conformity thereto and subsequently issued the questioned Order.
Contending that respondent Judge gravely abused his discretion because the
aforesaid Orders violates Sections 1 and 2 of Rule 132 of the Revised Rules of
Court, which requires that the testimony of the witness should be given orally
in open court, and there is no appeal nor any plain, speedy and adequate
remedy in the ordinary course of law, petitioners instituted the present
petition.
We grant the petition.
Sections 1 and 2, Rule 132 and Section 1, Rule 133 of the Revised Rules of
Court clearly require that the testimony of a witness shall be given orally in
open court. The afore-cited Sections 1 and 2 provide:
SECTION 1. Testimony to be given in open court. The
testimony of witnesses shall be given orally in open court and
under oath or affirmation.
SEC. 2. Testimony in superior courts to be reduced to
writing.- In superior courts the testimony of each witness shall
be taken in shorthand or stenotype, the name, residence, and
occupation of the witness being stated, and all questions put
to the witness and his answers thereto being included. If a
question put is objected to and the objection is ruled on, the
nature of the objection and the ground on which it was
sustained or overruled must be stated, or if a witness declines
to answer a question put, the fact and the proceedings taken
thereon shall be entered in the record. A transcript of the
record made by the official stenographer or stenotypist and
certified as correct by him shall be prima facie a correct
statement of such testimony and proceedings.
Sections 1 and 2 of Rule 132 of the Revised Rules of Court are reproductions,
respectively, of Sections 77 and 78 of Rule 123, of the Old Rules of Court.
Section 77 in turn was taken from Section 381 of Act No. 190, 1 while Section
78 from Section 32 of General Order No. 58. 2
The main and essential purpose of requiring a witness to appear and testify
orally at a trial is to secure for the adverse party the opportunity of crossexamination. "The opponent", according to an eminent authority, 3 demands
confrontation, not for the Idle purpose of gazing upon the witness, or of being
gazed upon by him, but for the purpose of cross-examination which cannot
be had except by the direct and personal putting of questions and obtaining
immediate answers." There is also the advantage to be obtained by the
personal appearance of the witness before the judge, and it is this it enables
the judge as the trier of facts "to obtain the elusive and incommunicable
evidence of a witness deportment while testifying, and a certain subjective
moral effect is produced upon the witness. 4 It is only when the witness
testifies orally that the judge may have a true idea of his countenance,
manner and expression, which may confirm or detract from the weight of his
testimony. 5Certainly, the physical condition of the witness will reveal his
capacity for accurate observation and memory, and his deportment and
physiognomy will reveal clues to his character. These can only be observed

by the judge if the witness testifies orally in court. Indeed, the great weight
given the findings of fact of the trial judge in the appellate court is based
upon his having had just that opportunity and the assumption that he took
advantage of it to ascertain the credibility of the witnesses. This has been
explained by Chief Justice Appleton, thus:

THE
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
DOMINADOR MOLO, defendant-appellant.

The witness present, the promptless and unpremeditatedness

of his answers or the reverse, their distinctness and
particularity or the want of these essentials, their
incorrectness in generals or particulars, their directness or
evasiveness are soon detected. ... The appearance and
manner, the voice, the gestures, the readiness and
promptness of the answers, the evasions, the reluctance the
silence, the contumacious silence, the contradictions, the
explanations, the intelligence or the want of intelligence of
the witness, the passions which more or less control-fear,
love, have, envy, or revenge are all open to observation,
noted and weighed by jury. 6

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Reynato &

Puno and Solicitor Romeo C. de la Cruz for appellee.

Thus, Section 1 of Rule 133 of the Rule 7 requires that in determining the
superior weight of evidence on the issues involved, the court, aside from the
other factors therein enumerated, may consider the "witness manner of
testifying" which can only be done if the witness gives his testimony orally in
open court". If a trial judge prepares his opinion immediately after the
conclusion of the trial, with the evidence and his impressions of the witnesses
fresh in his mind, it is obvious that he is much more likely to reach a correct
result than if he simply reviews the evidence from a typewritten transcript,
without having had the opportunity to see, hear and observe the actions and
utterances of the witnesses.
There is an additional advantage to be obtained in requiring that the direct
testimony of the witness be given orally ill court. Rules governing the
examination of witnesses are intended to protect the rights of litigants and to
secure orderly dispatch of the business of the courts. Under the rules, only
questions directed to the eliciting of testimony which, under the general rules
of evidence, is relevant to, and competent to prove, the issue of the case,
may be propounded to the witness. A witness in testify only on those facts
which he knows of his own knowledge. Thus, on direct examination, leading
questions are not allowed, except or, preliminary matters, or when there is
difficult in getting direct and intelligible answer from the witness who is
ignorant, a child of tender years, or feebleminded, or a deaf mute. 8 It is
obvious that such purpose may be subverted, and the orderly dispatch of the
business of the courts thwarted if trial judges are allowed, as in the case at
bar, to adopt any procedure in the presentation of evidence other than what
is specifically authorized by the Rules of Court.
WHEREFORE, in view of the foregoing, the petition for certiorari is hereby
granted and the order of respondent Judge, dated July 30, 1975, in Criminal
Case No. 2891 is hereby set aside, and the temporary restraining order
issued on August 22, 1975 is hereby made permanent, without any
pronouncement as to costs.

G.R. No. L-44680 January 11, 1979

Pedro Q. Quadra (Counsel de Oficio) for appellant.

PER CURIAM:
Automatic review of the death sentence with accessory penalties imposed on
September 3, 1976 upon accused-appellant Dominador Molo by Hon. Job B.
Mandayag of the Court of First Instance of Romblon, 11th Judicial District, in
Criminal Case No. 571 for the murder of Venancio Gapisa on 9 April 1976 at
Sitio Dacotan, Barrio Tambac, Romblon, Romblon.
The above-named accused was charged with murder in an Information filed
by Asst. Provincial Fiscal Cesar M. Solis, on May 31,1976, as follows:
The undersigned Assistant Provincial Fiscal of Romblon
accuses DOMINADOR MOLO of the crime of MURDER
committed as follows:
That on or about the 9th day of April 1976, at around 8:00
o'clock in the evening, at sitio Dacotan, barrio of Tambac
municipality of Romblon, province of Romblon, Philippines and
within the jurisdiction of this Honorable Court, the abovenamed accused with treachery and taking advantage of
superior strength, did then and there wilfully, unlawfully and
feloniously attack and assault one Venancio Gapisa, with the
use of a bolo as a consequence of which he sustained mortal
injuries that resulted in his death thereafter.
That the killing was attended with the following aggravating
circumstances:
(A) Dwelling, for the crime was committed in the house of the
offended party who has not given any provocation at all.
(B) Recidivism in view of the fact that the accused has been
charged for (1) Frustrated Murder before the Court of First
instance of Mindoro in Criminal Case V-542 entitled People va.
Dominador Molo and convicted thereof on September 2,
1950; and (2) Murder, before the Court of First Instance of
Romblon in Criminal Case No. 862 entitled People vs.
Dominador Molo and convicted thereof on July 27, 1961.
(C) Reiteration, since he has been charged and convicted
before different courts in the following criminal cases:
(1) Grave Slander, before the Court of First Instance of
Romblon in Criminal Case No. V-669 and convicted on June 5,
1957.
(2) Less Serious Physical Injuries, before the Municipal Court
of Romblon, Romblon in Criminal Case No. 839 and convicted
on October 9, 1959.

(3) Qualified Trespass to Dwelling, before the Municipal Court

of Romblon, Romblon in Criminal Case No. 845 and convicted
on February 25, 1960.
(4) Robbery, before the Court of First Instance of Davao in
Criminal Case No. 9982 and convicted on March 1, 1967.
That as a consequence of the aforementioned act committed
by the accused. the heirs of the deceased are entitled to
recover civil damages pursuant to the provisions of law.
CONTRARY TO LAW.
Romblon, Romblon, May 31,1976.
(S
G
D.)
CE
SA
R
M.
SO
LIS
As
sis
ta
nt
Pr
ovi
nci
al
Fis
cal
At the trial, the prosecution presented the testimonies of (1) the victim's
wife, Simeona Gapisa, an eye-witness to the alleged murder; (2) Alejandro
Gapisa, a son of the victim who went to the rescue of his father after he was
stabbed by accuse-appellant and was able to talk with him before he
succumbed to several bolo wounds; (3) Roman man a neighbor of Alejandro;
and (4) Dr. Victorio Benedicto, who performed the autopsy and accomplished
the Autopsy Report, Exhibits "A" and "A.1 The accused, who offered alibi as a
defense, presented his testimony and that of his wife. Barbara Mingo, and
Police Patrolman Rodolfo Manunggay and Exhibits 1, a bolo and 1-a,
scabbard.
The operative facts of the case and the circumstances surrounding the
apprehension and investigation of the accused now appellant established by
the evidence on record are as follow.
In the evening of April 9, 1976 at about 8:00 p.m. at Sitio Dacotan, Barrio
Tambac, Municipality of Romblon, Venancio Gapisa and Simeona RapaGapisa, husband and wife, retired to sleep. The couple lived in a typical hut
made of bamboo flooring and dilapidated burl walling surrounded by fruit.
bearing banana plants. Venancio Gapisa immediately fell asleep because he
was tired from clearing the fields, and besides, had drunk tuba on that day.
He slept near the door lying on his right side. 1

Not long after the couple had retired, Simeona, who had not yet fallen asleep,
heard an indistinct sound of murmur and gnashing of teeth. Although she was
seized by fear, she managed to peep through the dilapidated buri wall and
saw accused Dominador Molo attired only in short pants. He was alone.
Trembling, she immediately lighted a kerosene lamp and placed it on top of
the trunk nearby. She tried to awaken her husband, but the latter did not
respond. 2
Meanwhile, the accused had already climbed up the house which was only a
flight of two steps. The accused forcibly pushed the sliding door and barged
into the house. He inquired from Simeona where Venancio was and she
replied that he was asleep. Finding Venancio sleeping near the door, he
immediately grabbed his left wrist and started hacking at the sleeping old
man. Rudely awakened, Venancio quickly stood up and with his right hand
reached for his bolo which was atop the table nearby; but he was not able to
retaliate in as much as Dominador Molo was quick to hack at him again.
Fearing for her own life, Simeona rushed out of the house through the door of
the unfinished kitchen to summon help from her son, Alejandro Gapisa, who
was at Roman Mangaring's house some 100 meters away. Trembling, she told
him that his father was boloed by Boslo, the name by which accusedappellant was known in their locality. 3
Upon being informed, Alejandro and Roman ran towards the house of
Venancio, followed by Simeona. Upon arrival, they saw Venancio bleeding
profusely and in weakened condition. He was sitting on the floor of the
kitchen, defecating in his pants. When Alejandro took him in his arms,
Venancio told him that he was boloed by Boslo. Roman Mangaring who was
present also inquired from Venancio who his assailant was and elicited the
answer, "Boslo". 4 Venancio was then rushed to the hospital and arrived
there at about 1:50 a.m. He expired a few minutes after. 5
An autopsy of the victim disclosed that he died of hemorrhage from multiple
incised wounds. The wounds sustained were:
1. Incised wound, 10 cms. in length, gaping about 4 cms.,
slanting in position with the lower portion located anteriorly,
penetrating the bone, at the anterolateral aspect of the distal
3rd of the left arm.
2. Incised wound, about 10 cms. in length, gaping, slanting in
position, with the lower and located anteriorly, penetrating
the bone, located 3 cms. below the wound mentioned above.
3. Incised wound, about 10 cms. in length, gaping slightly at
the anterolateral aspect of the neck, left side, slanting, with
the lower and located anteriorly penetrating the muscle layer.
4. Incised wound, about 10 cms. gaping, slightly slanting with
the lower end located anteriorly, located 3 cms. below the 3rd
wound, fracturing the clavicle, the costo-chondral portion of
the 2nd rib and the lateral portion of the sternum, left side.
5. Incised wound, 8 cms. in length, gaping about 4 cms.,
slanting with the lower end located anteriorly, penetrating the
bone, located at the lower end of the distal 3rd of the right
arm, anterolateral portion.
6. Incised wound, 5 cms. in length, gaping slightly, slanting

with the lower end located anteriorly, penetrating the bone,

at the; upper 3rd of the right forearm, anterolateral aspect.
7. Incised wound, 4 cms., superficial, at the anterior portion of
the neck,
8. Incised wound 4 cms., superficial, right medial aspect,
upper 3rd, right forearm.
Internal Findings:
Wound No. 4 penetrated the apex of the left lung inflicting a
small wound, about 2-3 cms. causing minimal bleeding.
The Cause of Death: Hemorrhage from multiple incised wounds. 6
The following morning an investigation of the fatal incident was conducted.
Pat. Manuel Marino in the presence of Patrolmen Montojo and Antonio Madali
took the statement of Simeona Gapisa, who Identified Dominador Molo as the
assailant of her deceased husband. 7 Thereafter, PC soldiers and policemen
were dispatched to the house of Dominador Molo some one and a half (1-1/2)
kilometers away from the scene of the killing. Dominador Molo was placed
under arrest and brought by the arresting officers to the poblacion.
Investigated at the PC barracks, Molo denied having committed any wrong
and having gone to the place of Venancio Gapisa. 8
On April 23, 1976, after additional statements of Alejandro Gapisa, Roman
Mangaring and Florencio Guarte were secured, a criminal complaint was filed
in the Municipal Court of Romblon. 9 The preliminary examination was
conducted by Mayor Peter M. Montojo, for and in the absence of the
municipal judge. Thereafter, he issued an order confirming the detention of
accused who was then detained in the Municipal jail of Romblon, there being
"... reasonable ground to believe that the offense was committed and that
the accused is probably guilty thereof. 10 The accused waived the second
stage of the preliminary investigation. 11 On May 31, 1976, an information,
as adverted to above, was filed against Molo accusing him of the crime of
murder. 12
After trial, the court a quo relying on the testimony of Simeona Gapisa who
was an eye- and ear-witness to the incident and the corroborating
testimonies of Alejandro Gapisa and Roman Mangaring, who testified on the
antemortem statements of the victim Identifying accused as the assailant;
discounting the defense of alibi put forth by the accused and his wife;
appreciating the qualifying circumstance of treachery and the aggravating
circumstances of dwelling, recidivism and reiteration alleged in the
Information, and a mitigating circumstance, voluntary surrender, sentenced
the accused on September 3, 1976, as follows:
WHEREFORE, this Court renders judgment finding accused
Dominador Molo guilty beyond reasonable doubt of the crime
of murder, charged in the information and, since after offsetting the lone mitigating circumstance of voluntary
surrender with the aggravating circumstance of either
dwelling,
recidivism
or reiteration there
remains
two
aggravating circumstances, sentencing him to suffer the
supreme Penalty of death. He is further adjudged to pay the
heirs of the deceased Venancio Gapisa, the sum of Twelve
Thousand Pesos (P 12,000), and to pay the cost.

SO ORDERED. 13
Accused-appellant thru Atty. Pedro Q. Quadra, counsel de oficio now seeks
acquittal on the basis of two assigned erors, to wit 1. Appellant was convicted upon proof not beyond reasonable
doubt;
2. Identification of the appellant was not proven beyond
reasonable doubt. 14
1. In support of the first, he argues that while proof of motive is unnecessary
if the evidence of Identification is convincing citing People vs. Cunanan, 19
SCRA 769; People vs. Portugueza, 20 SCRA 901; People vs. Jamero, 24 SCRA
206; and People vs. Guardo, 24 SCRA 851 there is, he claims, a total want
of motive on appellant's part, as admitted by the victim's wife, Simeona
Gapisa, and son, Alejandro Gapisa. 15
2. In support of the second assigned error, appellant contents that his
Identity as the assailant was not established beyond reasonable doubt,
because of (a) alleged inconsistencies and incredible assertions in
Simeona's testimony; (b) physical conditions which rendered it impossible for
her to recognized accused-appellant; (c) her alleged admission that she
pointed to accuse-appellant as the assailant because he was a hated criminal
in their locality; and (d) that the so-called dying declarations should not have
been accorded credence, because the victim could not have Identified his
assailant. 16
Solicitor General Estelito P. Mendoza - who was assisted by Assistant Solicitor
General Reynato Puno and Solicitors Romeo S. dela Cruz - after refuting the
foregoing assignment of errors submits the following conclusions as to the
nature of the offense committed, the qualifying and aggravating
circumstances that attended the commission thereof, and, that the accused
is not entitled to the mitigating circumstance of voluntary surrender, thus
xxx xxx xxx
Since the attack was commenced while Venancio Gapisa was
asleep and therefore he could not make a defense, the killing
was attended with treachery. Treachery qualifies the killing
into murder. (Article 248, Revised Penal Code).
Dwelling is an aggravating circumstance because the killing
was done in the house of Venancio Gapisa who had not given
provocation. (Art. 14 (3), Revised Penal Code).
Other aggravating circumstances are recidivism and
reiteration. (Article 14, paragraphs 9 and 19, Revised Penal
Code). Accused-appellant had been previously convicted of
murder, frustrated murder, grave slander, less serious
physical injuries, qualified trespass to dwelling and robbery.
(pp. 10-12, tsn., July 12, 1976).
Accused-appellant is not entitled to the mitigating
circumstance of voluntary surrender. He did not surrender to
the authorities. As admitted by him, he was arrested by a
combined force of policemen and Philippine Constabulary
agents at his residence the day after the killing. (p, 6, tsn.,
July 29,1976).

Since there are three aggravating circumstances and no

mitigating circumstance, the penalty properly imposable upon
accused-appellant is death. 17
and recommends that the finding of guilt for the offense of murder and the
death sentence imposed upon appellant be affirmed in toto. 18
Now, to consider the merits of the alleged errors.
1. Re the claim that there is no proof of motive on appellant's part. This error
may be subsumed under and/or discussed together with the second, since it
admits that motive need not be shown where there is positive Identification,
which, as We shall explain later, happened in this case. However, by way of
traverse, We find the following observations of the Solicitor General welltaken, and therefore well worth adopting.
xxx xxx xxx
Appellee concedes that it has failed to show any motive of
accused- appellant in killing Venancio Gapisa.
Both Simeona Gapisa and Alejandro Gapisa ventured robbery
as the motive of accused-appellant (pp. 34, 44, tsn., July 12,
1976). They could not, however, state how much money was
taken, from whom it was taken and how it was taken (pp. 3438, 44-45, tsn., July 12,1976).
Lest it be thought that Simeona Gapisa and Alejandro Gapisa
gave
false
testimony,
thus
rendering
themselves
untrustworthy witnesses, it should be pointed out that when
they mentioned robbery as the possible motive of accusedappellant, Alejandro Gapisa made it clear that was only his
"surmise" (p. 34, tsn., July 12, 1976) while Simeona Gapisa
qualified her assertion with the word "maybe" (p. 44, tsn., July
12, 1976). They were not committal or categorical about the
matter.
Aside from robbery, there was no other possible motive of
accused-appellant. Both Simeona Gapisa and Alejandro
Gapisa admitted that accused-appellant had no grudge
against Venancio Gapisa and his family and vice-versa (pp.
33-34, 53-54, tsn., July 12, 1976).

thus
xxx xxx xxx
Fiscal Solis:
Q By the way, when you first heard the
unusual sound since you were still awake,
what did you do?
A I lighted a lamp, I first looked at him by
peeping thru the wall of our house and once I
had recognized his face as that of Dominador
Molo I lighted a lamp.
Q Was it only the face of Dominador Molo
that you recognized outside?
A Yes, and he was alone.
Q What about his body, did you recognize
that body belong to Dominador Molo?
A I could see and that was the very body of
his including his face because it was bright.
Q What provides the brightness that
allowed you to recognize him outside the
house?
A The moon was bright.
Q Now, aside from the unusual murmuring
sound, did you hear the sound of grinding
teeth?
A In fact that was what he had done he was
murmuring and at the same time sounding
like grinding teeth.
Q Now, after you lighted a lamp what else
did you do inside?
A I stood up and stepped back because he
had come up into the house.

But even in the absence of proof of motive, the conviction of

accused- appellant can stand inasmuch as he had been
positively Identified by Simeona Gapisa and by the deceased
himself through his dying declaration. Motive need not be
shown when there is positive Identification. (People vs.
Feliciano, 58 SCRA 383; People vs. Dorico, 54 SCRA 172). 19

Q Did you not wake up your husband?

xxx xxx xxx

A I placed it on top of our trunk which was

towards our head.

2. Re the contention that his Identity as assailant was not established beyond
reasonable doubt.
(a) That there are inconsistencies and incredible assertions in Simeona's
testimony.Simeona Gapisa who was present when accused-appellant
attacked her husband Venancio with a bolo testified on direct and re-direct
examinations by Assistant Provincial Fiscal Cesar M. Solis and on cross and
recross examinations by Atty. Alexander Mortel, counsel de oficio of accused,

A I had but he did not notice.

Q Now, what did you do with the lamp after
you lighted it?

Q Now, how did you know that Dominador

had gone up the house?
A Because I saw him going up into our
house.
Q When he went up the house, what did he

do?

A It was his very own appearance, his

appearance never changed.

A Once up the house he held my husband

by the arm and suddenly pulled out his bolo
from his back and hacked him. 20

Q And when you saw him you lighted a

lamp, is that right?

xxx xxx xxx

A I lighted a lamp because he was already

there and I was afraid of what he had done to
us.

Q How long have you known him?

A Since he was a boy and until he grew up.

Q You mean from the very first time that

you saw him he was making murmuring
sounds you were already afraid that he would
do something bad against you and your
husband?

Q By the way, by what affiliation (sic,

should be appelation or name) is he known in
your locality?
A Boslo.
Q If that Dominador Molo the accused in
this case known as Boslo is present in the
court room, will you be able to point him out
in the court?

A Yes, I was already afraid and my skin

seemed to shiver. 22
xxx xxx xxx
Q And so when your husband was or rather
when your house that night of April 19 was
entered into by a person making murmuring
sounds outside and boloed to death your
husband there was no other conclusion that
you made but that it must be Boslo the killer?

A He is here he is the one sitting.

Q Could you not be mistaken?
A That is true, it was his very appearance
who is looking up in the ceiling. 21

A Yes, in fact he was the very one it was his

very looks. 23

xxx xxx xxx

Atty. Mortel:

Fiscal Solis:

Q Nevertheless, because the moon was a

quarter moon only that night April 9 the
illumination any object that could be seen is
quite pale not so bright as if there was an
alladin lamp, correct?

Q And who pushed open that door of yours,

was it Dominador Molo or a witch?
A He was Dominador Molo, it was his very
looks of the same person who pushed the
shutter of the door.

A Yes.
Q And as a matter of fact when this person
whom you said was making murmuring
sounds when you peeped through your
window he was being illuminated by the beam
of the light of the moon and his face seems to
be a yellowish and as clear as if there is an
alladin lamp, correct?
A But I know that he was the very one I
recognized his face and he is far from the
banana plantation and the Moon lights very
well on him.

Q What made you sure that the looks of

that person was the one who pushed open the
door and went inside and hacked your
husband?
A He was the one it was his very looks and I
saw that it is his looks.
xxx xxx xxx

A It was indeed his appearance that I saw

and that is exactly how he looked.

Q Now, what is this basis for positively

telling us that is Dominador Molo who killed
your husband was it because of rumor
circulating in the locality of Cogon and that
the assailant as to be Dominador Molo
because he has killed or because you saw
then Dominador Molo committing the act
against your husband?

Q And When you looked at him the first

time that night he looked lie Dominador Molo?

A Not only what was given to me by way of

information from other people but because of

Q When the moon lighted very well on him

his color was yellowish was it not?

what I actually saw with my eyes. 24

A There was a consequence of the sudden

entry.

xxx xxx xxx

Q And with that sudden entry and gust of

wind carried by this fellow the light was
snuffed out, correct?

Atty. Mortel:
Q Now, according to you when the door was
pushed open the person entered and he has
the looks of that fellow whom you are pointing
to as Dominador Molo, is that correct?
A He is the very one.
Q And not only that person who entered the
looks of that Dominador Molo the accused in
this case but he also has the height that looks
like the height of Dominador Molo, is that
correct?

A Yes. (P. 51, tsn., July 12,1976).

A review of the transcript of the testimony shows that the foregoing is an
inaccurate representation of Simeona's testimony. For she clarified that her
husband was already boloed before the light was snuffed out. Thus, she
testified on cross-examination:
Atty. Mortel:
Q And with that sudden entry and gust of
wind carried by that fellow the light was
snuffed out, correct?

A Yes and he had his shirt off and shorts on.

A Yes.

Q And he has that looks and built of

Dominador Molo, is that correct?

Q And in the darkness inside this fellow who

entered the house began stabbing and
boloing your husband, correct?

A Yes, that is his very appearance and

could not be altered anymore. 25

A My husband was already boloed when

the light was put out because upon entrance
he instantly took hold of my husband's arm
and started hacking him all over. 33

xxx xxx xxx

Appellant contents that inconsistencies exist between Simeona's statement
given to the police and her foregoing testimony in court, relative to 1) the
precise moment when Simeona recognized the accused, 26 and 2) whether
there was a conversation between Simeona and the accused. 27
The records show, however, that the alleged statement given to the police
was neither offered as evidence nor shown to witness in order to enable her
to explain the discrepancies if any in accordance to Section 16, Rule 132 of
the Rules of Court. The proper bast was, therefore, not laid to impeach
Simeona's testimony on the basis of alleged inconsistent statements which
she allegedly made before the police. 28
At any rate, We find the alleged inconsistencies inconsequential.
Inconsistencies on minor details or on matters that are not of material
consequence as to affect the guilt or the innocence of the accused do not
detract from the credibility of the witnesses. 29 The discordance in their
testimonies on collateral matters heightens their credibility and shows that
their testimonies were not coached or rehearsed. 30 Far from being evidence
of falsehood, they could justifiably be regarded as a demonstration of good
faith.31
It is also contended that the testimony of Simeona contains inconsistent
averments. According to accused-appellant Simeona claimed that she was
able to Identify him because of the lamp which was then lighted but that she
also declared that the light was put out when the door was opened because
of the sudden gust of wind. 32 To support this contention, he quoted
Simeona's testimony:
Q And when the door was pushed open
there was a sudden gust of wind that entered
the house, correct?

xxx xxx xxx

On re-direct examination, she declared
Fiscal Solis:
Q Now, you admitted on cross examination
that the lamp was put out now how were you
able to know that your husband had
attempted to hold his bolo with his right hand
and while in that position he was hacked twice
by a bolo by the accused Dominador Molo?
A That stage occurred when the light was
still on so it was still bright. 34
Appellant also alleges that her testimony contains incredible assertions, i.e.
that it was very unusual that she remained silent while witnessing the attack
on her husband. 35
But the transcripts show that appellant's own counsel below, Atty. Alexander
Mortel, during the cross-examination, provided the answer to this misgiving :
xxx xxx xxx
Q When the door was pushed open did you
not shout?
A No, because I was afraid.
Q Afraid of what?

A I was afraid because I did not shout for

fear that he might bolo me.

because the main door of our house is

fronting a yard.

Q You were tongue-tied?

Q Nevertheless, because the moon was a

quarter moon only that night April 9 the
illumination to any object that could be seen
is quite pale not so bright as if there was an
alladin lamp, correct ?

A Yes.
Q Because of fear?
A Yes.

A Yes.

Q Terrible fear?

Q And as a matter of fact when this person

whom you said was making murmuring
sounds when you peeped through your
window he was being illuminated by the beam
of the light of the moon and his face seems to
be a yellowish and as clear as if there is an
alladin lamp, correct?

A Yes, it was terrible fear because my body

trembled .
Q To such extent that you were shocked?
A Yes. 36
Appellant also argues that Simeona's account is contrary to physical facts. He
claims that if, as she testified, the victim was lying down when attacked, he
would sustain stab, not incised wounds. He explains that the natural
tendency of a person attacking another who is lying down with a bolo would
be to thrust the bolo towards the body and not hack him. 37 This claim is
without merit. The Solicitor General's explanation on this point is well-taken.
To simply thrust a bolo at a lying person is not as forceful as to hack him with
it. The first is an awkward if not difficult movement, but the second is natural
and can be done with facility. 38

A But I know that he was the very one I

recognized his face and he is far from the
banana plantation and the moon lights very
well on him.
Q When the moon lighted very well on him
his color was yellowish was it not?
A It was indeed his appearance that I saw
and that is exactly how he looked.

(b) That conditions rendered it impossible for Simeona to recognize accusedappellant. It is contended that Simeona could not have recognized accusedappellant while he was at the foot of the stairs because the banana plants
obstructed the light cast by the moon. 39
This, again, is without merit. Simeona testified that the banana plants did not
obstruct the light cast by the moon and the defense did not disprove this
fact:
xxx xxx xxx
Atty. Mortel:
Q And because of the banana plantation
that is covering your yard this quarter moon,
the illumination thereof is obstructing a little
by this banana plantation?
A But the bananas are not directly
obstructing the door of our house because
they are standing towards the footpath the
part of our house was not obstructed of the
light cast by the moon .
Q Except by the footpath and the
surrounding premises of the east side of the
house is shaded because the banana
plantation are there to obstruct the
illumination of the moon, correct?
A No, the light coming from the moon could
not be obstructed anymore by that plantation

Q And when you looked at him the first

time that night he looked like Dominador
Molo?
A It was his very own appearance his
appearance never changed. 40
Indeed, Simeona had no difficulty in recognizing the accused, considering
that their house was only elevated by two steps and at the time she saw him
through the dilapidated burl wall he was already at the foot of the stairs. 41
(c) That Simeona pointed to the accused as the killer because he was a hated
criminal in the locality. 42 Appellant contends that Simeona pointed to him
as the assailant because he was a hated criminal in the locality - not because
he was properly Identified as the one who attacked the victim. This claim has
no basis in the records. For the testimony of Simeona shows that she was
certain of accused-appellant's Identity as assailant and that at one point
accused-appellant even inquired from her where her husband was, thus
xxx xxx xxx
Fiscal Solis:
Q And who pushed open that door of yours,
was it Dominador Molo or a witch?
A He was Dominador Molo, it was his very
looks of the same person who pushed the
shutter of the door.
Q What made you sure that the looks of

that person was the one who pushed open the

door and went inside and hacked your
husband?

entered.
Q So it is clear that you had a conversation
with him?

A He was the one it was his very looks and I

saw that it is his looks.

A Yes.
Q And that is what you stated in the police?

xxx xxx xxx

Q Now, what is this basis for positively
telling us that it is Dominador Molo who killed
your husband was it because of rumor
circulating in the locality of Cogon and that
the assailant as to be Dominador Molo
because he has killed or because you saw
then Dominador Molo committing the act
against your husband?
A Not only what was given to me by way of
information from other people but because of
what I actually saw with my eyes.

A Yes, sir. 43
(d) Re the dying declarations. Appellant claims that the same should not be
accorded credence because the victim could not have recognized his
assailant, since as testified by Simeona he was asleep when
attacked. 44Again this is inaccurate. It was only at the initial stage of the
attack when the victim was asleep, because he was awakened by the first
blows and stood up to defend himself Simeona declared:
xxx xxx xxx
Fiscal Solis:
Q How many times did you see Dominador
bolo your husband on the left arm?

xxx xxx xxx

A I saw him boloed my husband twice on

the left arm and when my husband noticed
that he was being hacked he reached for his
bolo with his right arm to which instance
Dominador Molo noticing that he was going to
use a bolo Dominador hacked him again on
the right arm.

Atty. Mortel:
Q Now, according to you when the door was
pushed open the person entered and he has
the looks of that fellow whom you are pointing
to as Dominador Molo, is that correct.
A He is the very one.

Q Was your husband able to take hold of his

bolo?

Q And not only that person who entered

has the looks of Dominador Molo the accused
in this case but he also has the height that
looks like the height of Dominador Molo, is
that correct?
A Yes and he had his shirt off and shorts on.

A He was able to take hold of the handle

only because at this instance he was hacked
by Dominador and so the bolo fell from his
hands.

Q And he has that looks and built of

Dominador Molo, is that correct?

Q What hand did your husband use in

taking hold of his bolo?

A Yes, that is his very appearance and

could not be altered anymore.

A Right arm (sic: should be hand).

xxx xxx xxx

xxx xxx xxx

Court: In your entire testimony you did not
mention of any conversation of Dominador
Molo as soon as he went up the house, did
you not talk to him, did you not converse with
him?
A No, because he suddenly rushed our
house.
Q And did he not ask you where is your
husband and answered there he is?
A That was it he was also asking as he

Q But was your husband able to rise from

where he was lying to get that bolo?
A He was able to rise but he was already
weak because his left arm was already
wounded. 45
The statements of Venancio Identifying Dominador Molo as his assailant to
Alejandro, his son, and Roman, his neighbor are dying declarations. Alejandro
Gapisa testified:
xxx xxx xxx
Q What was the position when you found
him there?

A He was sitting.
Q What else if any did you observe of your
father?
A When I came up he said, "Ando I have
wounds because I was boloed by Boslo. "
Q What was his actual physical situation
when he uttered these words?
A He was already weak, his body was weak.
Q How did you observe that he was already
very weak, that he was already weak
physically?
A Because his wounds are big and many.
Q Was it bleeding?
A It was bleeding but the flow of the blood
had declined since they had been drained of
blood.
Q In your observation was he dying or not?
A He was about to die.
Q Now, since he had wounds what did you
do with these injuries?
A Upon arrival I tied his wounds.
Q Which injuries did you bind, what did you
tie?
A The wounds in the arm because it was
dangling.
Q Which arm the left or the right?
A The left.
Q What about the right arm?
A It had also many wounds.
Q What was your father doing there, in that
kitchen?
A He was sitting.
Q Was he doing anything else from sitting ?
A I think he was defecating as a result of
the pain.
Q Did he have his pants on?
A Yes. 46
Ad Roman Mangaring declared:
xxx xxx xxx

A I was talking to him as to who boloed

him.
Q And his answer to you was Boslo?
A Yes.
Q He called his assailant as Boslo?
A Yes. 47
Considering the nature and extent of the wounds, eight in all, Venancio must
have realized the seriousness of his condition and it can therefore be inferred
that he made the incrimination under the conciousness of impending
death, 48 which, in fact, supervened barely 4-1/2 hours after he was boloed.
In resume then the credible and unimpeached testimonies of the victim's
widow, Simeona Gapisa, who was an eye-witness to the fatal incident, and
that of Alejandro Gapisa, the victim's son, and Roman Mangaring, a neighbor,
who both testified on the ante-mortem statements of the victim, establish the
guilt of accused-appellant beyond reasonable doubt of the crime of murder
qualified by treachery, and aggravated by circumstances of dwelling,
recidivism and reiteration, it appearing that accused has been convicted by
final judgment of murder, frustrated murder, grave slander, less serious
physical injuries, qualified trespass to dwelling and robbery, and, had served
sentences for said crimes.
We agree with the Solicitor General that appellant is not entitled the
mitigating circumstance of voluntary surrender. For in order that the same
may be properly appreciated in favor of the accused, it must appear that
a) he had not been actually arrested; b) he surrendered himself to a person in
authority or his agent; and c) his surrender is voluntary, which circumstances
are not present in this case. 49 For appellant admitted that on the day after
the killing, police authorities surrounded his house and arrested him. The fact
that he did not try to escape or did not resist arrest after he was taken into
custody by the authorities, does not amount to voluntary surrender. 50
A word about the penalty. It appears that accused-appellant is an incorrigible
criminal with clearly anti-social proclivities against which the community
has the need if not the right, to defend itself. Where, as in this case, the
reformative end of punishment seems to have failed in amending his criminal
tendencies he was convicted for frustrated murder in Criminal Case V-542,
Mindoro on September 2, 1950; murder in Criminal Case No. 862, Romblon on
July 27, 1961; grave slander in Criminal Case No. V-669, Romblon, on June 5,
1957; less serious physical injuries, before the Municipal Court of Romblon,
Romblon in Criminal Case No. 839 on October 9, 1959; qualified by trespass
to dwelling, before the Municipal Court of Romblon, Romblon in - Criminal
Case No. 845 on February 25, 1960 and robbery, before the Court of First
Instance of Davao in Criminal Case No. 9982 on March 1, 1967 the
imposition of the supreme penalty, is not only justified by the facts of this
case, but is required as a measure of social defense. Society had given
accused-appellant several chances. It would seem that compassion had not
reformed him but had instead made him a hardened criminal and a menace
to his fellow men. To spare his life is to endanger the lives and properties of
others.
WHEREFORE, judgment is hereby affirmed IN TOTO, without pronouncement
as to costs.

SO ORDERED.

G.R. No. L-26247

failed to show that the credit upon which said cause of action is based had
been legally assigned to it. Both the plaintiff and the defendant Gorayeb
appealed from this judgment.
March 18, 1927

JUAN
YSMAEL
&
CO.,
INC., plaintiff-appellant,
vs.
NAGEEB T. HASHIM and AFIFE ABDO CHEYBAN GORAYEB, defendants.
AFIFE ABDO CHEYBAN GORAYEB, appellant.
M.H. de Joya, Felipe Ysmael and Claudio R. Sandoval for plaintiff-appellant.
Gibbs & McDonough and J.E. Blanco for defendant-appellant.
OSTRAND, J.:
The complaint in the present case sets forth two causes of action.For its first
cause of action the plaintiff alleges, in substance, that the defendant Nageeb
T. Hashim on September 21, 1916, executed a chattel mortgage in favor of
said plaintiff for the sum of P13,160.87, with interest at 8 per cent per
annum, the mortgage falling due on September 21, 1917; that the said
defendant having failed to make payment in accordance with the terms
agreed upon, the chattel mortgage was foreclosed and the mortgage
property sold by the sheriff on January 15, 1921; that the proceeds of the sale
amounted to the sum of P2,100 only, thus leaving a balance of P11,060.87,
which, with thecorresponding interest at the rate of 8 per cent per annum
from September 21, 1916, until January 9, 1925, now amounts to the sum of
P19,134.32, for which amount judgment is prayed.
For the second cause of action, the plaintiff alleges that the defendant
Nageeb T. Hashim has been indebted in the sum of P14,646.47 to the Hashim
Commercial & Trading Company, Ltd., a limitedcopartnership, organized
under the laws of the Philippine Islands and that, for good and valuable
consideration, the said Hashim Commercial & Trading Company, Ltd.,
assigned the amount due it on saidindebtedness to the plaintiff on October 3,
1921, together with its other bills receivable, fixtures, cash on hand in banks,
and its entire stock of goods; that the plaintiff has in vain demanded payment
from the defendants and now asks judgment against them for said sum of
P14,060.47. The plaintiff also prayed for a writ of attachment of the property
of the defendants, which prayer was granted.
The defendant Hashim in his answer admits all of the allegations of the
complaint and consents to the rendition of the judgment in conformity
therewith. The defendant Afife Abdo Cheyban Gorayeb in her answer admits
that the plaintiff is a corporation duly organized and existing under the laws
of the Philippine Islands and that thedefendants are huband and wife, but
deny all other allegationscontained in the complaint and set up as a special
defense that the action is the result of a conspiracy between Hashim and his
relations, the stockholders is Juan Ysmael & Co., Inc., to defraud her of the
alimony granted her in civil case No. 19115 of the Court of First Instance of
Manila. She also alleges that she has suffered damages in the sum of
P20,000 by reason of the preliminary attachment upon said real property
belonging to her exclusively.
Upon trial the Court of First Instance rendered judgment in favor of the
plaintiff for the full amount demanded under the first cause of action, but
dusmissed the second cause of action on the ground that the plaintiff had

The plaintiff-appellant assigns as error the finding of the trialcourt that the
indebtedness of the defendant Nageeb T. Hashim to the Hashim Commercial
& Trading Co., Ltd., in the amount of P14,646.47, was assigned by the latter
to the Asia Banking Corporation and not to the plaintiff Juan Ysmael & Co.,
Inc., and that the court likewise erred in dismissing the second cause of
action alleged in the complaint. This contention is principally based on a
resolution of the stockholders of the Hashim Commercial & Trading Co., Ltd.,
adopted on October 3, 1921, the last three paragraphs of which reads as
follows:
Whereas, Messrs. Juan Ysmael & Co., Inc., owners of 1678 shares of
the stock of this company, have arranged for the suspension of the
foreclosure proceedings began as mentioned above, and agree to
assume the obligation of this company with the Asia Banking
Corporation as stated in the deed dated March 8th, 1921, on
condition that this company transfer to Juan Ysmael & Co., Inc. its
entire stock of goods, cash on hand and in banks, bills receivable,
fixtures, and to have access to the books whenever required by them;
Now, therefore, be it resolved that Mr. A. T. Hashim, President and
General Manager of this company, be and hereby is, authorized in an
irrevocable manner to transfer in favor of Messrs. Juan Ysmael & Co.,
Inc., its entire stock of goods, cash on hand and in banks, bills
receivable, fixtures and to have access to the books whenever
required by them; and be it further.
Resolved that the said Mr. A. T. Hashim be and hereby is authorized in
an irrevocable manner to execute, acknowledge, and deliver all such
documents and intruments in writing as may be necessary to
effectuate the foregoing purpose.
It does not appear that the assignment authorized by this resolution was ever
made and on November 2, 1921, the same stockholders, together with Juan
Ysmael & Co., Inc., also a stockholders, adopted another resolution which
practically revoked the resolution of October 3, 1921 and which reads as
follows:
Whereas, on October 3rd, 1921, A. T. Hashim was authorized by the
stockholders of Hashim Commercial & Trading Co., Ltd., to transfer
the entire stock of the Company, cash on hand, bills receivable, and
fixtures, to Juan Ysmael & Co., Inc., and
Whereas, subsequently, it appeared advisable to A. T. Hashim that
the transfer of said stocks of goods, etc., should be made to the Asia
Banking Corporation, who would then make Juan Ysmael & Co., Inc.,
its agent, for the purpose of disposing the same, and
Whereas, a transfer was made to the Asia Banking Corporation, in the
form of an agreement entered into between the Asia Banking
Corporation, Juan Ysmael & Co., Inc., and Hashim Commercial &
Trading Co., Ltd., thru their proper representatives, on the 31st day of
October, 1921.
Now, therefore, be it resolved that the transfer made by A. T. Hashim,

as aforesaid, to the Asia Banking Corporation, of all goods, wares and

merchandise, as per said agreement, be and the same approved, and
transfer ratified.
As will be seen the only assignment actually effected was that to the Asia
Banking Corporation. The court below was, therefore, justified in dismissing
the second cause of action and if so, the plaintiff's second assignment of
error to the effect that the bond in the sum P20,000 fixed by the court below
for the discharge of the writ of attachment was inadequate, is also without
merit. We may say in passing that the authorities cited in support of the first
assignment of error have reference to equitable assignments and are not in
point. Upon the facts shown by the record, Juan Ysmael & Co., Inc. might,
perhaps, have compelled the Hashim Commercial & Trading Co. to execute an
assignments of the credit in controversy, byt it does not follow that the same
facts would constitute a valid assignment as against third parties and that
the prospective assignee may maintain an action against the debtor for the
collection of the credit without a formal assignment of such dredit. The
debtor has the right to demand that the person who sues him for the debt
shall be the real party in interest and shall show a valid title to the chose in
action; a mere equitable right to the assignment thereof is not sufficient.
Both under article 51 of the Code of Commerce and under paragraph 6 of
article 1280 of the Civil Code, a formal assignment of a credit of over three
hundred pesos must be in writing. The formalities for sales of choses in action
are governed by paragraph 4 of section 335 of the Code of Civil Procedure.
The defendant-appellant makes the following assignments of error:
I. The trial court erred in rendering judgment upon the first cause of
action in favor of the plaintiff and against the defendant and
appellant, jointly and severally, with her husband A. T. Hashim for the
sum of P19,134.32, with interest on P11,060.87 thereof at 8 per cent
per annum from the 10th day of January,1925.
II. The trial court erred in prohibiting appellant from inquiringinto the
details of the account set forth in Exhibit 3.
III. The trial court erred in refusing to receive the testimony of the
defendant N. T. Hashim, that of A. T. Hashim, and that of K. N.Hemady
in the former action No. 19569 (G. R. No. 21345).
IV. The trial court erred in preventing defendant and appellant from
representing proofs in support of the allegations of her answer and
special defenses.
There is some merit in all of these assignments, except the third. The court
below undoubtedly erred in denying the defendant-appellant the opportunity
to inquire into the sources of the entries found in the plaintiff's books of
account in relation to the indebtedness of the defendants; the fact that such
sources might have been examined in civil case No. 19569 of the Court of
First Instance of Manila cannot be regarded as a bar to a reasonable inquiry
into the character of the debt in the present case. The issues in the two cases
are entirely different; the former case dealt with the validity of a chattel
mortgage, while in the present case, wer are dealing with the amount of the
defendant's indebtedness to the plaintiff. For much the same reasons, the
defendant-appellant should have been permitted to present evidence in
support of her special defense of conspiracy.
The third assignment of error cannot be sustained. In offering in evidence the

testimony given by Mr. Hemady and the Hashims in the earlier case, the
defendant-appellant did not claim that said testimony contained admissions
against interest by the parties to the action or their agents; if such had been
the case, the testimony would have been admissible without the laying of a
foundation and without the witnesses having testified in the case at bar. But
the purpose of the offer of the testimony was evidently to impeach the
testimony of the same witnesses in the present case and if so, a foundation
should have been laid by calling the attention of the witnesses to the former
statements so as to give them opportunity to explain before the statements
were offered in evidence.
In discussing their first assignment of error, counsel for the defendantappellant insist that, taking into consideration the facts of the case and the
circumstances preceeding the same, it is obvious that the case is "fraudulent
and that even if the indebtedness claimed were over a true indebtedness,
either the same had been paid or payment thereof waived." This contention
is not entirely without foundation and though we cannot fully agree with
counsel, we do think that, in view of the very apparent unreliability of some
of the oral evidence presented, the plaintiff's recovery on its first cause of
action should be limited to the amount shown by its books of account.
On December 31, 1924, the plaintiff's ledger showed a balance of P12,238.02
against the defendant Hashim, and it does not appear that he has incurred
any further indebtedness to the plaintiff since that date. The plaintiff explains
that the amount claimed in excess of the sum shown by the ledger
represents interest at the rate of 8 per centper annum, but under the
circumstances of the case, we cannot give much weight to this explanation. It
clearly appears that the chattel mortgage debt, upon which the plaintiff's first
cause of action is based, is included in the ledger account and it may
properly beconsidered as merged therein. It also appears that the account
was balanced at the end of the years 1920, 1922 and 1924, and considering
the fact that the plaintiff corporation is a well conducted business
organization, it seems rather improbable that, in striking its book balances, it
would have overlooked the important item of interest if any interest on the
book account in question had been agreed upon.
The judgment appealed from is, therefore, modified by reducing the plaintiff's
recovery to the sum of P12,238.02, with interest at the rate of 6 per cent per
annum from January 13, 1925, the date of the filing of the complaint. In all
other respects said judgment is affirmed without costs in this instance. So
ordered.
EN BANC
G.R. No. 26708

September 29, 1927

THE PEOPLE OF THE PHILIPPINE

RESABAL, Defendant-Appellant.

ISLANDS, Plaintiff-Appellee,

Melquiades
G.
Ilaw
and
Vicente
Attorney-General Jaranilla for appellee.

Sotto

for

vs.ALEJO
appellant.

VILLAMOR, J.:
The evidence shows, as an indisputable fact, that in the early morning of
April 25, 1926, one Primo Ordiz died at his own home in the barrio of Bogo,

municipality of Maasin, Leyte, form the effects of an internal hemorrhage

caused by a sharp wound in the left lung, as appears from the death
certificate, marked Exhibit A.chanroblesvirtualawlibrary chanrobles virtual law
library
As a consequence of this, an information was filed with the Court of First
Instance of Leyte in Maasin, reading as follows:
That on or about April 25, 1926, in the municipality of Maasin, Province of
Leyte, Philippine Islands, the said accused, willfully, unlawfully and criminally,
with treachery and evident premeditation, conspiring amongst themselves
and acting in common agreement and taking advantage of nocturnity,
mutually aiding each other, opened the window and killed Primo Ordiz by
means of a shot from a 'Smith' 38 caliber revolver, inflicting a wound in the
upper part of the left nipple, which produced the instant death of said Primo
Ordiz.chanroblesvirtualawlibrary chanrobles virtual law library
Contrary to law.
The judge who tried the case, after having carefully analyzed the evidence,
reached the conclusion that the crime committed by the accused Alejo
Resabal is that of murder, provided for and penalized in article 403 of the
penal Code, with the aggravating circumstances of evident premeditation,
nocturnity and dwelling, and imposed on the accused the death penalty, with
the accessories of article 53 in case of pardon, and to pay the deceased's
heirs the sum of P1,000 by way of indemnity, with he costs of the action. He
also ordered that the present case be brought to this court for review, as
provided
for
in
section
50
of
General
Orders
No.
58.chanroblesvirtualawlibrary chanrobles virtual law library
Counsel for the defense alleges that the trial court erred in not ignoring
Glicerio Orit's testimony, and in no acquitting the accused Alejo Resabal on
the ground of reasonable doubt.chanroblesvirtualawlibrary chanrobles virtual
law library
The Attorney-General in turn asks that the judgment rendered, being in
accordance with the evidence and the law, be affirmed with the costs against
the appellant.chanroblesvirtualawlibrary chanrobles virtual law library
Glicerio Orit testified that on the morning of April 25, 1926, the accused,
armed with a revolver, invited him to Primo Ordiz's house in order to kill the
latter, and on arriving at said house, the accused went into the ground,
approached one of the windows of the house less than a meter and a half in
height, opened it and looked in. At that moment the witness left the place,
and at a distance of 15 brazas heard an explosion. Glicerio Orit's testimony
as to the explosion is corroborated by the declaration of the boy Jose Ordiz,
who slept with his uncle Primo Ordiz, to the effect that early in the morning of
that day he was awakened by the noise of an explosion and saw his uncle
Primon
Ordiz
vomiting
blood
and
unable
to
speak.chanroblesvirtualawlibrary chanrobles virtual law library
It is unquestionable, from the testimony of these two witnesses and the result
of the autopsy, and above all from the finding of the revolver Exhibit B, that
the weapon exhibited at the trail of the case. This revolver was hidden by the
accused on the land cultivated by the witness Carmelo Ordiz, to whom the

accused revealed it, and who, through fear of the police, transferred it to the
neighboring lot, burying it at the foot of a tree called "mabago." By following
the directions of this witness, Carmelo Ordiz, the chief of police, who
investigated the case, found the revolver wrapped in two pieces of cloth
Exhibits C and C-1. The revolver was loaded with two bullets and an empty
shell, and had a rusty barrel. It must be noted that Exhibit C-1 appears to be
a piece of cloth from a pair of drawers, and the chief of police who searched
the house where the accused lived, found a piece of a pair of drawers in a
trunk that was in the kitchen. Upon examination of said Exhibits F and C-1 by
this court, it was found that these two pieces of cloth Exhibit F and C-1 made
a complete pair of drawers, all of which shows that the accused tore the
piece of cloth Exhibits C-1 from an old pair of drawers in order to wrap up the
revolver before putting it in the place indicated by the witness Carmelo
Ordiz.chanroblesvirtualawlibrary chanrobles virtual law library
This witness testified, furthermore, that on the night of April 24, 1926, the
accused believing him to be still an enemy of the deceased Primo Ordiz, and
showing him the revolver Exhibit B, invited him to accompany him to do away
with Primo Ordiz. On the other hand, the witness Vicente Ambalong
corroborates Glicerio Orits testimony to the effect that early in the morning of
April 25, 1926, the accused went to the house where the latter was sleeping
to awaken him, and that he then saw the accused on the staircase, calling to
said Glicerio Orit.chanroblesvirtualawlibrary chanrobles virtual law library
And what is the motive of the crime? According to the evidence presented by
the prosecution, some twenty days before the incident the accused had a
disagreement with the deceased because of the carabao that destroyed
some coconut trees belonging to the deceased Primo Ordiz. The accused
requested the deceased to return the carabao that was under his care, but
the deceased refused to do so before he was paid the value of the trees
destroyed. This naturally produced resentment, which, among country
people, is sufficient cause for the commission of the act charged in the
information.chanroblesvirtualawlibrary chanrobles virtual law library
The defense of alibi set up by the accused is not, in our opinion, sufficient to
overthrow the evidence of the prosecution; for taking into consideration the
short distance between the deaceased's house and that in which the accused
slept on the night of the incident, the accused could easily have gone out of
his house and returned later, without having been noticed by his companions
in the house, namely, his wife, his mother-in-law, and his sister-in-law, aside
from the natural interest these have in testifying in the accused's
favor.chanroblesvirtualawlibrary chanrobles virtual law library
The defense argues that Glicerio Orit is not a credible witness, because of his
having been excluded from the information to be used as a witness for the
prosecution; and, because, moreover, of the contradiction in his testimony at
the preliminary investigation and during the trial. We are of the opinion that
the mere fact of having been excluded from the information to be used as a
witness for the Government, does not prevent this witness from telling the
truth in this case, especially in the absence of proof showing the interest he
might possibly have in testifying against the accused. Neither is the apparent
contradiction which may be noted in his declarations before the court of the
justice of the peace, and before the court of first instance sufficient to
discredit his testimony, for the simple reason that this witness was not given
ample opportunity, by a reading to him of his declarations before the court of

the justice of the peace, to explain the discrepancies noted by counsel for the
accused. The mere presentation of Exhibit 1, without said declaration having
been read to the witness while he testified in the Court of First Instance, is no
ground for impeaching his testimony. (U. S. vs. Baluyot, 40 Phil., 385,
406.)chanrobles virtual law library

G.R. No. 98376 August 16, 1991

The defense also impeaches Carmelo Ordiz's testimony considering the

invitation which the accused extended to him as improbable, knowing that he
was a cousin of the deceased Primo Ordiz. Under ordinary circumstances,
such an attitude would appear improbable, but not so if it is considered that
the accused invited the witness in the belief that the latter was still an enemy
of the deceased, on account of certain disagreements they had over some
land.chanroblesvirtualawlibrary chanrobles virtual law library

The Solicitor General for petitioner.

The defense also contends that the conduct of the accused in going with his
family to the deceased's house on the morning of April 25, 1926, helping in
the preparations for the burial, is incompatible with his being a criminal. It is,
indeed, an old belief that the fear of the suspected party to touch the corpse
was a sign of guilt. But experience has shown that some criminals have gone
to the extreme that the accused did, to avoid all suspicion of
guilt.chanroblesvirtualawlibrary chanrobles virtual law library
The evidence in the record shows that guilt of the accused beyond a
reasonable doubt, and he deserves the penalty provided for in article 403 of
the Penal Code. The crime committed is murder, qualified by treachery for, in
the commission of the crime, the accused employed ways, means, and forms
that tended directly and especially to assure, it, without risk to his person
from
any
defense
the
assaulted
party
might
make.chanroblesvirtualawlibrary chanrobles virtual law library
The trial court imposed the death penalty on the accused, by reason of the
aggravating circumstances of evident premeditation, nocturnity, and
dwelling, without any mitigating circumstances to offset them. On this point
the opinion of the court is divided, with the result that we cannot impose on
the accused the maximum penalty, or death, in accordance with Act No.
3104, because the vote of the members of the court who took part in the
discussion of the case, as to the justice of the imposition of the death penalty
was not unanimous. And, it being so, it is unnecessary to discuss in detail the
presence
of
the
said
aggravating
circumstances.chanroblesvirtualawlibrary chanrobles virtual law library
In virtue whereof, we are of the opinion, and so hold, that the accused is
guilty of the crime of murder, committed with treachery, on the person of
Primo Ordiz, and with the modification of the judgment on review, the penalty
of cadena perpetua is imposed on the accused, with the accessories of Article
54 of the Penal Code, the judgment of the trial court being affirmed in all
other
respects,
with
the
costs
against
the
appellant.
So
ordered.chanroblesvirtualawlibrary chanrobles virtual law library
Republic
SUPREME
Manila
FIRST DIVISION

of

the

Philippines
COURT

PEOPLE
OF
THE
PHILIPPINES, petitioners,
vs.
HON. BAYANI S. RIVERA, Judge, Branch 129 , Regional Trial Court of
Kalookan City, and WILFREDO L. EMBRANO, respondent.

Eduardo S. Rodriguez for private respondent.

NARVASA, J.:p
The special civil action of certiorari at bar instituted in this Court to annul an
order rendered by the Regional Trial Court at Kalookan City, Branch 129, in a
prosecution for arson docketed in that Court as Criminal Case No. 28820 (87).
Accused in that case of arson is Wilfredo L. Sembrano. It is the prosecution's
theory that he wilfully caused the fire in the early morning of May 21, 1987
which totally burned and destroyed the second and third floors of the "I Love
You Restaurant and Sauna Bath" owned by Juanita L. Tan, located at No. 2 L.
Bustamante St. Kalookan City. 1
Among the witnesses presented by the Government to demonstrate
Sembrano's culpability was Benjamin Lee, a room boy of the restaurant and
bath. Lee testified on direct examination at the hearing of December 8, 1987.
His testimony was essentially that Sembrano had run out of the VIP room
where the fire had started and refused to heed his (Lee's) call to stop. Lee
took the witness stand again on April 26, 1987 during which he was crossexamined by defense counsel, gave additional evidence on redirect
examination, was again questioned on recross-examination by the same
defense counsel, and thereafter allowed to step down. 2
The prosecution completed presentation of its evidence-in-chief in due
course. But before it could rest its case, and two (2) months or so after
Benjamin Lee had completed his testimony, the defendant's original counsel,
Benjamin Formoso, withdrew his appearance and was substituted by another
attorney, Eduardo S. Rodriguez. 3The latter then filed a motion on June 8,
1988 to recall Benjamin Lee for further examination. 4 The ground relied upon
by Atty. Rodriguez was simply that after he had reviewed the record of
Benjamin Lee's testimony, he came to the conclusion that " there seems to
be many points and questions that should have been asked but were not
profounded (sic) by the other defense counsel who conducted.. (the crossexamination). It was on this averment, and counsel's reference to "the
gravity of the offense charge (sic)" and the need "to afford the accused full
opportunity to defend himself," that Lee's recall for further cross examination
was sought to be justified. Over objections of the prosecution, the
Court 5 granted the motion.
Efforts were thereafter exerted to cause witness Benjamin Lee to again
appear before the Court for further cross-examination. These efforts met with

no success; and the trial had to be postponed several times. It appears that
Lee had terminated his employment and moved elsewhere without indicating
his new address.
So, on October 1, 1990 the private prosecutor filed a "Manifestation and
Motion" drawing attention to the inability to procure the re-appearance of
witness Lee for which "the prosecution could not be held liable," and to the
fact that "Lee has already been thoroughly examined by the former defense
counsel," and praying upon these premises "that the farther examination of
Benjamin Lee be dispensed with and ... the prosecution ... allowed to
terminate the presentation of its evidence."
By Order dated October 2, 1990, 6 the Trial Court denied the motion to
dispense with the recall of Benjamin Lee. In fact, it ordered the testimony of
Benjamin Lee for the prosecution xx stricken off the record for lack of
complete cross-examination" because the witness could no longer be found,
and "the failure of counsel for the accused to further cross-examine the
witness is not the fault of the defense. 7
In the same order, the Court also set the "reception of further evidence for
the prosecution, if any, ... on October 23, 1990 xx as earlier scheduled."
Subsequently, it denied the private prosecutor's motion for reconsideration of
the order. 8 Hence, the action at bar, instituted by the Office of the Solicitor
General.
The writ of certiorari prayed for will issue. The Trial Court acted with grave
abuse of discretion in authorizing the recall of witness Benjamin Lee over the
objections of the prosecution, and in later striking out said witness' testimony
for want of further cross-examination.
There is no doubt that a Trial Court has discretion to grant leave for the recall
of a witness. This is clear from a reading of Section 9, Rule 132 of the Rules of
Court, as amended, 9 viz.:
SEC. 9. Recalling witness. After the examination of a
witness by both sides has been concluded, the witness
cannot be recalled without leave of the court. The court will
grant or withhold leave in its discretion, as the interests of
justice may require.
But obviously that discretion may not be exercised in a vacuum, as it were,
entirely, isolated from a particular set of attendant circumstances. The
discretion to recall a witness is not properly invoked or exercisable by an
applicant's mere general statement that there is a need to recall a witness "in
the interest of justice," or "in order to afford a party full opportunity to
present his case," or that, as here, "there seems to be many points and
questions that should have been asked" in the earlier interrogation. To regard
expressed generalities such as these as sufficient ground for recall of
witnesses would make the recall of witness no longer discretionary but
ministerial. Something more than the bare assertion of the need to propound
additional questions is essential before the Court's discretion may rightfully
be exercised to grant or deny recall. There must be a satisfactory showing of
some concrete, substantial ground for the recall. There must be a satisfactory
showing on the movant's part, for instance, that particularly identified
material points were not covered in the cross-examination, or that

particularly described vital documents were not presented to the witness

whose recall is prayed for, or that the cross-examination was conducted in so
inept a manner as to result in a virtual absence thereof. Absent such
particulars, to repeat, there would be no foundation for a trial court to
authorize the recall of any witness.
In the case at bar, the respondent Trial Court granted the defendant's motion
for recall on nothing more than said movant's general claim that certain
questions unspecified, it must be stressed had to be asked. In doing so,
it acted without basis, exercised power whimsically or capriciously, and
gravely abused its discretion.
So, too, the respondent Court acted whimsically, capriciously, and
oppressively, in other words, gravely abused its discretion, in ordering the
striking out of the entire testimony of Benjamin Lee after it appeared that he
could no longer be found and produced for further examination. In the first
place, the Court acted unilaterally, without any motion to this effect by the
defense and thus without according the prosecution a prior opportunity to
show why the striking out should not be decreed. More importantly, the
striking out was directed without any showing whatever by the defense of the
indispensability of further cross-examination, what it was that would have
been elicited by further cross-examination rendering valueless all that the
witness had previously stated. It should be stressed that Lee was subjected
both to cross-examination and recross-examination by former counsel of the
accused Sembrano. Obviously the latter was satisfied that there had been
sufficient cross-examination of the witness. Absence of cross-examination
may not therefore be invoked as ground to strike out Lee's testimony (as
being hearsay). And there is no showing whatever in this case that it was the
prosecution that placed the witness beyond the reach of the Court, much less
of the expected nature or tenor of his additional testimony which, because
not presented, would necessarily cause the evidence earlier given by Lee to
become hearsay or otherwise incompetent, and therefore, amenable to being
stricken from the record.
WHEREFORE, the petition is GRANTED and the respondent Court's challenged
Order dated October 2, 1990 is NULLIFIED AND SET ASIDE, with costs against
private respondent.
IT IS SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

THIRD DIVISION
G.R. No. 76792 March 12, 1990
RESURRECCION
BARTOLOME,
ET
AL., petitioners,
vs.
THE INTERMEDIATE APPELLATE COURT (now Court of Appeals) and
HEIRS
OF
SPOUSES
BERNABE
BARTOLOME
and
URSULA
CID, respondents.
Rafael B. Ruiz for petitioners.

E.L. Peralta for private respondents.

FERNAN, C.J.:
This is a petition for review on certiorari of the decision 1 of the then
Intermediate Appellate Court "adjudicating the whole Lot No. 11165 in favor
of" Bernabe Bartolome and Ursula Cid, thereby reversing the decision 2 of the
Regional Trial Court of Ilocos Norte, Branch XII at Laoag City. The dispositive
portion of the latter decision states:
WHEREFORE, judgment is hereby rendered adjudicating the
eastern portion to the heirs of the late Epitacio Batara
measuring 27 meters from south to north by 32 meters from
east to west, with an area of 864 square meters, bounded on
the east by the Provincial Road; on the north by the heirs of
Rufo Manuel; on the west by a portion of the same Lot No.
11165; and on the south by Lot No.11164; the remaining
portion to the heirs of Doroteo Bartolome, bounded on the
east by the portion of Lot No. 11165 adjudicated to the heirs
of Epitacio Batara and heirs of Rufo Manuel; on the north by
Eugenio Andrada; on the west by Nieves Caday or Lot No.
11166; and on the south by Lot No. 11164.
Likewise, the heirs of Epitacio Bartolome Batara are hereby
ordered to reserved (sic) the road right of way for the
necessary expansion of the road adjacent to the eastern side
of said lot, subject, however, to just compensation.
Once this Decision becomes final, let the corresponding
Decree be issued accordingly.
IT IS SO ORDERED.
The record shows that a 725-square meter portion of said Lot No. 11165
located in Barrio 11, Laoag, Ilocos Norte, was first declared as his property by
Epitacio Batara under tax declaration No. 5708 dated May 23, 1906. 3The
property was described therein as bounded on the north by the property of
Pedro Manuel, on the east by the road, on the south by the property of
Doroteo Bartolome and on the west by the property of one named Esteban,
and as having "una casa de tabla de dimension 5 x 4 metros" as
improvement. Tax declaration No. 5708 was superseded by tax declaration
No. 37576 labelled as a "revision of declaration of real property (urban)"
dated April 23, 1914. 4 The residential lot described in the latter tax
declaration contained an area of 772 square meters with a "casa" and a
"granero" as improvements thereon.
Epitacio Batara and his wife, Maria Gonzales, had two children: Catalina and
Pedro. The latter died a bachelor and without issue. Catalina, who married
someone surnamed Bartolome, bore five children named Isabela, Tarcila,
Calixto, Resurreccion and Ruperta. In 1912, before he left Laoag to settle in
Culalabo, Gamo (Burgos), Isabela, Epitacio entrusted the lot to his cousin,
Doroteo Bartolome, who owned the lot bounding Epitacio's property on the
south. 5 Maria Gonzales remained in the lot for sometime. When she later

followed Epitacio to Isabela, she allowed Doroteo Bartolome to continue

taking charge of the property. 6
In 1916, Epitacio Batara died in Isabela. Five years later or in 1921, Maria
Gonzales and her grandchildren, Calixto and Resurreccion Bartolome,
returned to Laoag. As they found that the house on their lot was destroyed by
fire, they boarded in someone else's house. Calixto constructed a bamboo
fence around his grandfather's lot and he and Resurreccion, who was
studying in Laoag, cleaned it. Resurreccion went back to Isabela after Maria
Gonzales' death in 1926. 7 It was also in that year when Doroteo Bartolome,
to whom Epitacio had entrusted his land, migrated to Davao City. Doroteo
died there two years later. 8
Thereafter, the Director of Lands instituted cadastral proceedings over the
land involved herein (Cadastral Case No. 53). On October 23, 1933, Ursula
Cid, the widow of the son of Doroteo Bartolome, Bernabe, who died in
1928, 9 filed an answer in Cadastral Case No. 53, claiming ownership over Lot
No. 11165 with an area of 1660 square meters, described as bounded on the
north by the property of Rufo Manuel and Eugenia Andrada, on the east by
the provincial road, on the south by the property of Doroteo Bartolome, and
on the west by the property of Nieves Caday and Eugenia Andrada, and with
a house as improvement thereon. The land was allegedly acquired by Ursula
Cid through inheritance from Doroteo Bartolome, the father of Ursula's
deceased husband, Bernabe. 10
More than three months later or on January 30, 1934, Resurreccion Bartolome
also filed an answer in the same cadastral case claiming ownership over a
portion of Lot No. 11165 with an area of 864 square meters described as
bounded on the north by the property of the heirs of Rufo Manuel, on the east
by Blumentritt Street, on the south by the property of Doroteo Bartolome,
and on the west by the property of Bernabe Bartolome. No improvements on
the lot were indicated in the answer which also stated that said portion of Lot
No. 11165 was acquired by claimant Resurreccion Bartolome "by inheritance
from my grandfather and grandmother . . . Epitacio Batara and Maria
Gonzales." 11
From then on, no further proceedings were held in the cadastral case.
Meanwhile, in 1934, Resurreccion Bartolome verbally entrusted the portion
she had claimed to Maria Bartolome, whom she later described as the
daughter of Doroteo Bartolome. 12
In 1939, Ursula Cid and her children also migrated to Davao City leaving their
house on Lot No. 11165 to a lessee, Severino Ramos. Ursula and her son,
Dominador Bartolome, instructed Maria Bartolome, the sister of Bernabe, to
receive the rentals for the house from Severino Ramos. 13 Maria Bartolome
also paid the taxes on the property until 1948, when Dominador took over
the task. 14 But on September 22, 1950, Maria Bartolome, as "administrator
of the parcel of land situated at Bo. 11, Laoag, Ilocos Norte," leased Lot No.
11165 to the Philippine United Trading Co., Inc. 15 The rentals for the property
were paid by the lessee to Dominador Bartolome until the edifice housing the
company was burned down in 1968. 16 Resurreccion Bartolome, who had
been residing in Isabela, was given by Maria Bartolome a small amount,
which could have been about P50, in consideration of the lease contract. 17
In June, 1968, the Court of First Instance of Ilocos Norte sent out

notices for the "continuation of the hearing" on June 13, 1968 in Cadastral
Case No. 53. 18 It should be remembered, however, that from the time Ursula
Cid and Resurreccion Bartolome filed their answers to the petition in the
cadastral case, there had been no progress in the proceedings.
A year later or in 1969, Maria J. Bartolome filed in Cadastral Case No. 53 a
"motion to admit answer in intervention," alleging that she is one of the
children of Doroteo Bartolome and that she and her co-heirs had been
excluded in Ursula Cid's answer to the petition. She therefore prayed that the
answer
of Ursula Cid be amended so as to include the rightful heirs of Doroteo
Bartolome. 19 At the same time, she filed an answer claiming co-ownership
over Lot No. 11165 with Clemente, Julia and Rosario Bartolome and Ursula
Cid, the widow of Bernabe. She likewise alleged therein that she and her
siblings inherited the 1660-square meter lot from Doroteo Bartolome. 20
Three months later, Ursula Cid filed a motion to amend her answer to reflect
the complete "ground or basis of acquisition" of Lot No. 11165. 21 In her
amended answer, Ursula Cid stated that she was the absolute owner of Lot
No. 11165; that she had been the possessor of Lot No. 11165 for over fifty
years; that she "acquired by inheritance from Bernabe Bartolome, who
together with her, purchased the . . . lot which used to be three adjoining lots
from their respective owners;" and that Lot No. 11165 had been declared for
tax purposes in the name of her late husband Bernabe Bartolome. 22
No hearing was conducted in the case until 1974. To buttress her claim that
she and her husband purchased Lot No. 11165, Ursula Cid presented at the
trial three deeds of sale: [a] one dated March 1, 1917 showing that Bernabe
Bartolome and Ursula Cid bought a 374-square meter lot for fifteen pesos
from the spouses Domingo Agustin and Josefa Manrique; 23 [b] another
document dated February 18, 1913 executed by Ignacia Manrique in favor of
Bernabe Bartolome evidencing the sale of another lot also for fifteen
pesos; 24 and [c] still another deed executed by Maria Gonzales y Paguyo on
February 9, 1917 in favor of Bernabe Bartolome and Ursula Cid ceding to the
latter 772 square meters of land for P103.75. 25 The last-mentioned piece of
land is the one being claimed by Resurreccion Bartolome.
On May 10, 1984, the Regional Trial Court of Ilocos Norte rendered a decision
the dispositive portion of which is quoted above. The court entertained only
the answers of Ursula Cid and Resurreccion Bartolome. It found that the lots
described in Exhibits 2 and 3 presented by Ursula Cid "are not within Lot
11165" and that said exhibits "are defective as the vendors are not the real
owner(s)" of the lots described therein. As to Exhibit 4, the court ruled that it
has "no probative value as the same is incomplete and unsigned." The court
also held that Ursula Cid's possession of the land "after the claimants had
filed their respective answer(s) or after the declaration of a general default,"
did not confer ownership on her because said possession was interrupted and
merely tolerated by all the parties during the pendency of the case. 26
Ursula Cid appealed to the then Intermediate Appellate Court. In its decision
reversing the lower court, the appellate court held that the deeds of sale
presented by Ursula Cid are ancient documents under Section 22, Rule 132 of
the Rules of Court. It also ruled that Ursula Cid's continuous possession of the
lot from its acquisition and her exercise of rights of ownership over it vested
her with the legal presumption that she possessed it under a just title.

Her motion for the reconsideration of said decision having been denied,
Resurreccion
Bartolome
filed
the
instant
petition
for
review
on certiorari based on two principal issues: [a] whether the provisions of Rule
132 on ancient documents are applicable with respect to Exhibit 4, and [b]
whether acquisitive prescription runs during the pendency of a cadastral
case.
Exhibit 4 consists of three pieces of paper. The first piece is a blank sheet
which apparently serves as a cover page. The two other pages contain the
handwritten document in Ilocano stating that in consideration of the amount
of P103.75, Maria Gonzales y Paguyo sold to the spouses Bernabe Bartolome
and Ursula Cid 772 square meters of land bounded on the north by the
property of Pedro Manuel, on the east by the Bacarra road, on the south by
the property of Doroteo Bartolome and on the west by the property of
Bernabe Bartolome. The third sheet or page 2 thereof contains a warranty
against eviction and other disturbances with the last three lines indicating
the date of the execution of the instrument.
According to Dominador Bartolome, he first saw Exhibit 4 in the possession of
his mother, Ursula Cid, when he was just eleven years old. He noticed that
the document had a fourth page containing the signature of Maria Gonzales
and that all four pages were sewn together. 27 However, when the document
was entrusted to him by his mother in 1947 as he was then representing the
family in litigation concerning the land, the document's fourth page was
already missing. 28 He stated that his mother told him that the fourth page
was lost during the Japanese occupation while they were evacuating from
Davao City. 29
Dominador Bartolome also presented in court a sworn statement in Ilocano
executed by Ursula Cid on February 19, 1937. 30 In her statement, Ursula Cid
declared that the sale of the lot to her and her husband by Maria Gonzales
was evidenced by a written instrument; that the land had been transferred in
the name of her husband; that she had been paying taxes therefor, and that
they had been in continuous possession of the land for more than twenty
years. 31
Rule 132 of the Rules of Court provides:
Sec. 22. Evidence of execution not necessary. Where a
private writing is more than thirty years old, is produced from
a custody in which it would naturally be found if genuine, and
is unblemished by any alterations or circumstances of
suspicion, no other evidence of its execution and authenticity
need be given.
We agree with the appellate court that the first two requirements ordained by
Section 22 are met by Exhibit 4. It appearing that it was executed in 1917,
Exhibit 4 was more than thirty years old when it was offered in evidence in
1983. 32 It was presented in court by the proper custodian thereof who is an
heir of the person who would naturally keep it. 33 We notice, however, that the
Court of Appeals failed to consider and discuss the third requirement; that no
alterations or circumstances of suspicion are present.
Admittedly, on its face, the deed of sale appears unmarred by alteration. We
hold, however, that the missing page has nonetheless affected its

authenticity. Indeed, its importance cannot be overemphasized. It allegedly

bears the signature of the vendor of the portion of Lot No. 11165 in question
and therefore, it contains vital proof of the voluntary transmission of rights
over the subject of the sale. Without that signature, the document is
incomplete. Verily, an incomplete document is akin to if not worse than a
document with altered contents.
Moreover, there is a circumstance which bothers the Court and makes the
genuineness of the document suspect. If it is really true that the document
was executed in 1917, Ursula Cid would have had it in her possession when
she filed her answer in Cadastral Case No. 53 in 1933. Accordingly, she could
have stated therein that she acquired the portion in question by purchase
from Maria Gonzales. But as it turned out, she only claimed purchase as a
mode of acquisition of Lot No. 11165 after her sister-in-law, Maria J.
Bartolome and the other descendants of Doroteo Bartolome sought
intervention in the case and demanded their rightful shares over the
property.
All these negate the appellate court's conclusion that Exhibit 4 is an ancient
document. Necessarily, proofs of its due execution and authenticity are vital.
Under Section 21 of Rule 132, the due execution and authenticity of a private
writing must be proved either by anyone who saw the writing executed, by
evidence of the genuineness of the handwriting of the maker, or by a
subscribing witness. The testimony of Dominador Bartolome on Exhibit 4 and
Ursula Cid's sworn statement in 1937 34 do not fall within the purview of
Section 21. The signature of Maria Gonzales on the missing fourth page of
Exhibit 4 would have helped authenticate the document if it is proven to be
genuine. But as there can be no such proof arising from the signature of
Maria Gonzales in the deed of sale, the same must be excluded. 35
Even if Exhibit 4 were complete and authentic, still, it would substantially be
infirm. Under Article 834 of the old Civil Code, Maria Gonzales, as a surviving
spouse, "shall be entitled to a portion in usufruct equal to that corresponding
by way of legitime to each of the legitimate children or descendants who has
not received any betterment." And, until it had been ascertained by means of
the liquidation of the deceased spouse's estate that a portion of the conjugal
property remained after all the partnership obligations and debts had been
paid, the surviving spouse or her heirs could not assert any claim of right or
title in or to the community property which was placed in the exclusive
possession and control of the husband as administrator thereof. 36 Hence, in
the absence of proof that the estate of Epitacio Batara had been duly settled,
Maria Gonzales had no right to sell not even a portion of the property subject
of Exhibit 4.
On the issue of whether acquisitive prescription runs during the pendency of
a cadastral case, we hold, as this Court held in Cano v. De Camacho, 37 that
the institution of cadastral proceedings, or at least the publication of the
notice therein issued, has the effect of suspending the running of the
prescriptive period. Hence, the appellate court erred in ascribing acquisitive
prescription in favor of Ursula Cid "up to the present." 38
Neither can Ursula Cid successfully assert that prior to the institution of the
cadastral proceedings, she and her husband had gained acquisitive
prescription over the property. Until Doroteo Bartolome migrated to Davao
City in 1926, he was in possession of the whole lot including the portion

entrusted to him by Epitacio Batara. Granting that the 1520-square meter lot
Bernabe Bartolome had declared as his own in 1925 39 is within Lot No.
11165, still, the period from 1925 until the filing of the cadastral case in 1933
failed to give him an advantage. It is short of the 10-year actual, adverse and
uninterrupted period of possession mandated by Section 41 of the Code of
Civil Procedure in order that a full and complete title could be vested on the
person claiming to be the owner of a piece of land.
Furthermore, while it is true that the property had been declared for tax
purposes by Bernabe Bartolome and that, subsequent to his death, taxes
thereon were paid in the name of his son, Dominador, 40 ownership thereof
had not been acquired by Ursula Cid or her heirs. Aside from the fact that
said declarations and payments were made during the pendency of the
cadastral case, a tax declaration in the name of the alleged property owner
or of his predecessor-in-interest, does not prove ownership. It is merely an
indicium of a claim of ownership. 41 In the same manner, neither does the
payment of taxes conclusively prove ownership of the land paid for.
The foregoing discussion notwithstanding, the Court is unprepared to decree
824 square meters of Lot No. 11165 in favor of Resurreccion Bartolome and
her co-heirs to the estate of Epitacio Batara. The revised declaration of real
property in the name of Epitacio, which petitioners presented as Exhibit B,
reveals that Epitacio Batara owned only 772 square meters of the lot
involved. Certainly, petitioner and her co-heirs may not be entitled to an area
greater than what their grandfather claimed as his own.
Similarly, what remains of Lot No. 11165 after the portion herein adjudicated
to Resurreccion Bartolome and her co-heirs has been determined, may not be
granted to the heirs of Bernabe Bartolome and Ursula Cid exclusively. The
two other deeds of sale presented as Exhibits 2 and 3 having been found
worthless by the trial court as they involve parcels of land not within Lot No.
11165 and the vendors of which were not the real owners of the property,
which findings of facts are binding on this Court, the law mandates that the
property, having been inherited from Doroteo Bartolome, must be shared in
equal portions by his children or their heirs.
WHEREFORE, the appealed decision of the then Intermediate Appellate Court
is hereby reversed and set aside.
The eastern portion of Lot No. 11165 with an area of 772 square meters is
hereby adjudicated in favor of the heirs of Epitacio Batara who are herein
represented by Resurreccion Bartolome while the remaining area of Lot No.
11165 is hereby adjudicated in favor of the heirs of Doroteo Bartolome.
Petitioners shall pay the cost of the survey and subdivision of Lot No. 11165.
No costs.
SO ORDERED.
Republic
SUPREME
Manila
THIRD DIVISION

of

the

Philippines
COURT

G.R. No. 164273

March 28, 2007

EMMANUEL
B.
vs.
CITIBANK, N.A., (Philippines), Respondent.

AZNAR, Petitioner,

DECISION
AUSTRIA-MARTINEZ, J.:
Before this Court is a Petition for Review assailing the Decision 1 of the Court
of Appeals (CA) in CA-G.R. CV No. 62554 dated January 30, 2004 which set
aside the November 25, 1998 Order of the Regional Trial Court (RTC) Branch
10, Cebu City and reinstated the Decision of RTC Branch 20 of Cebu City
dated May 29, 1998 in Civil Case No. CEB-16474; and the CA Resolution
dated May 26, 2004 denying petitioners motion for reconsideration.
The facts are as follows:
Emmanuel B. Aznar (Aznar), a known businessman 2 in Cebu, is a holder of a
Preferred Master Credit Card (Mastercard) bearing number 5423-3920-07867012 issued by Citibank with a credit limit of P150,000.00. As he and his wife,
Zoraida, planned to take their two grandchildren, Melissa and Richard Beane,
on an Asian tour, Aznar made a total advance deposit of P485,000.00 with
Citibank with the intention of increasing his credit limit toP635,000.00.3
With the use of his Mastercard, Aznar purchased plane tickets to Kuala
Lumpur for his group worth P237,000.00. On July 17, 1994, Aznar, his wife
and grandchildren left Cebu for the said destination. 4
Aznar claims that when he presented his Mastercard in some establishments
in Malaysia, Singapore and Indonesia, the same was not honored. 5 And when
he tried to use the same in Ingtan Tour and Travel Agency (Ingtan Agency) in
Indonesia to purchase plane tickets to Bali, it was again dishonored for the
reason that his card was blacklisted by Citibank. Such dishonor forced him to
buy the tickets in cash. 6 He further claims that his humiliation caused by the
denial of his card was aggravated when Ingtan Agency spoke of swindlers
trying to use blacklisted cards. 7 Aznar and his group returned to the
Philippines on August 10, 1994. 8
On August 26, 1994, Aznar filed a complaint for damages against Citibank,
docketed as Civil Case No. CEB-16474 and raffled to RTC Branch 20, Cebu
City, claiming that Citibank fraudulently or with gross negligence blacklisted
his Mastercard which forced him, his wife and grandchildren to abort
important tour destinations and prevented them from buying certain items in
their tour.9 He further claimed that he suffered mental anguish, serious
anxiety, wounded feelings, besmirched reputation and social humiliation due
to the wrongful blacklisting of his card. 10 To prove that Citibank blacklisted his
Mastercard, Aznar presented a computer print-out, denominated as ON-LINE
AUTHORIZATIONS FOREIGN ACCOUNT ACTIVITY REPORT, issued to him by
Ingtan Agency (Exh. "G") with the signature of one Victrina Elnado Nubi
(Nubi)11 which shows that his card in question was "DECL OVERLIMIT" or
declared over the limit.12
Citibank denied the allegation that it blacklisted Aznars card. It also

contended that under the terms and conditions governing the issuance and
use of its credit cards, Citibank is exempt from any liability for the dishonor of
its cards by any merchant affiliate, and that its liability for any action or
incident which may be brought against it in relation to the issuance and use
of its credit cards is limited to P1,000.00 or the actual damage proven
whichever is lesser.13
To prove that they did not blacklist Aznars card, Citibanks Credit Card
Department Head, Dennis Flores, presented Warning Cancellation Bulletins
which contained the list of its canceled cards covering the period of Aznars
trip.14
On May 29, 1998, RTC Branch 20, Cebu City, through Judge Ferdinand J.
Marcos, rendered its decision dismissing Aznars complaint for lack of
merit.15 The trial court held that as between the computer printout16presented by Aznar and the Warning Cancellation Bulletins 17 presented
by Citibank, the latter had more weight as their due execution and
authenticity were duly established by Citibank. 18 The trial court also held that
even if it was shown that Aznars credit card was dishonored by a merchant
establishment, Citibank was not shown to have acted with malice or bad faith
when the same was dishonored.19
Aznar filed a motion for reconsideration with motion to re-raffle the case
saying that Judge Marcos could not be impartial as he himself is a holder of a
Citibank credit card.20 The case was re-raffled21 and on November 25, 1998,
the RTC, this time through Judge Jesus S. De la Pea of Branch 10 of Cebu
City, issued an Order granting Aznars motion for reconsideration, as follows:
WHEREFORE, the Motion for Reconsideration is hereby GRANTED. The
DECISION dated May 29, 1998 is hereby reconsidered, and consequently, the
defendant is hereby condemned liable to pay the following sums of money:
a) P10,000,000.00 as moral damages;
b) P5,000,000.00 as exemplary damages;
c) P1,000,000.00 as attorneys fees; and
d) P200,000.00 as litigation expenses.22
Judge De la Pea ruled that: it is improbable that a man of Aznars stature
would fabricate Exh. "G" or the computer print-out which shows that Aznars
Mastercard was dishonored for the reason that it was declared over the limit;
Exh. "G" was printed out by Nubi in the ordinary or regular course of business
in the modern credit card industry and Nubi was not able to testify as she
was in a foreign country and cannot be reached by subpoena; taking judicial
notice of the practice of automated teller machines (ATMs) and credit card
facilities which readily print out bank account status, Exh. "G" can be
received as prima facie evidence of the dishonor of Aznars Mastercard; no
rebutting evidence was presented by Citibank to prove that Aznars
Mastercard was not dishonored, as all it proved was that said credit card was
not included in the blacklisted cards; when Citibank accepted the additional
deposit of P485,000.00 from Aznar, there was an implied novation and
Citibank was obligated to increase Aznars credit limit and ensure that Aznar
will not encounter any embarrassing situation with the use of his Mastercard;

Citibanks failure to comply with its obligation constitutes gross negligence as

it caused Aznar inconvenience, mental anguish and social humiliation; the
fine prints in the flyer of the credit card limiting the liability of the bank
to P1,000.00 or the actual damage proven, whichever is lower, is a contract
of adhesion which must be interpreted against Citibank. 23
Citibank filed an appeal with the CA and its counsel filed an administrative
case against Judge De la Pea for grave misconduct, gross ignorance of the
law and incompetence, claiming among others that said judge rendered his
decision without having read the transcripts. The administrative case was
held in abeyance pending the outcome of the appeal filed by Citibank with
the CA.24lawphi1.net
On January 30, 2004, the CA rendered its Decision granting Citibanks appeal
thus:
WHEREFORE, the instant appeal is GRANTED. The assailed order of the
Regional Trial Court, 7th Judicial Region, Branch 10, Cebu City, in Civil Case
No. CEB-16474, is hereby SET ASIDE and the decision, dated 29 May 1998 of
the Regional Trial Court, 7th Judicial Region, Branch 20, Cebu City in this case
is REINSTATED.
SO ORDERED.25
The CA ruled that: Aznar had no personal knowledge of the blacklisting of his
card and only presumed the same when it was dishonored in certain
establishments; such dishonor is not sufficient to prove that his card was
blacklisted by Citibank; Exh. "G" is an electronic document which must be
authenticated pursuant to Section 2, Rule 5 of the Rules on Electronic
Evidence26 or under Section 20 of Rule 132 of the Rules of Court 27 by anyone
who saw the document executed or written; Aznar, however, failed to prove
the authenticity of Exh. "G", thus it must be excluded; the unrefuted
testimony of Aznar that his credit card was dishonored by Ingtan Agency and
certain establishments abroad is not sufficient to justify the award of
damages in his favor, absent any showing that Citibank had anything to do
with the said dishonor; Citibank had no absolute control over the actions of
its merchant affiliates, thus it should not be held liable for the dishonor of
Aznars credit card by said establishments.28
Aznar filed a motion for reconsideration which the CA dismissed in its
Resolution dated May 26, 2004.29
Parenthetically, the administrative case against Judge De la Pea was
activated and on April 29, 2005, the Courts Third Division 30 found respondent
judge guilty of knowingly rendering an unjust judgment and ordered his
suspension for six months. The Court held that Judge De la Pea erred in
basing his Order on a manifestation submitted by Aznar to support his Motion
for Reconsideration, when no copy of such manifestation was served on the
adverse party and it was filed beyond office hours. The Court also noted that
Judge De la Pea made an egregiously large award of damages in favor of
Aznar which opened himself to suspicion.31
Aznar now comes before this Court on a petition for review alleging that: the
CA erroneously made its own factual finding that his Mastercard was not
blacklisted when the matter of blacklisting was already a non-issue in the

November 25, 1998 Order of the RTC; the RTC found that Aznars Mastercard
was dishonored for the reason that it was declared over the credit limit; this
factual finding is supported by Exh. "G" and by his (Aznars) testimony; the
issue of dishonor on the ground of DECL OVERLIMIT, although not alleged in
the complaint, was tried with the implied consent of the parties and should
be treated as if raised in the pleadings pursuant to Section 5, Rule 10 of the
Rules of Civil Procedure;32 Exh. "G" cannot be excluded as it qualifies as an
electronic evidence following the Rules on Electronic Evidence which provides
that print-outs are also originals for purposes of the Best Evidence Rule; Exh.
"G" has remained complete and unaltered, apart from the signature of Nubi,
thus the same is reliable for the purpose for which it was generated; the RTC
judge correctly credited the testimony of Aznar on the issuance of the
computer print-out as Aznar saw that it was signed by Nubi; said testimony
constitutes the "other evidence showing the integrity and reliability of the
print-out to the satisfaction of the judge" which is required under the Rules on
Electronic Evidence; the trial court was also correct in finding that Citibank
was grossly negligent in failing to credit the additional deposit and make the
necessary entries in its systems to prevent Aznar from encountering any
embarrassing situation with the use of his Mastercard. 33
Citibank, in its Comment, contends that: Aznar never had personal
knowledge that his credit card was blacklisted as he only presumed such fact;
the issue of dishonor on the ground that the card was declared over the limit
was also never tried with the implied consent of both parties; Aznars selfserving testimony is not sufficient to prove the integrity and reliability of Exh.
"G"; Aznar did not declare that it was Nubi who printed the document and
that said document was printed in his presence as he merely said that the
print-out was provided him; there is also no annotation on Exh. "G" to
establish that it was Nubi who printed the same; assuming further that Exh.
"G" is admissible and Aznars credit card was dishonored, Citibank still cannot
be held liable for damages as it only shows that Aznars credit card was
dishonored for having been declared over the limit; Aznars cause of action
against Citibank hinged on the alleged blacklisting of his card which
purportedly caused its dishonor; dishonor alone, however, is not sufficient to
award Aznar damages as he must prove that the dishonor was caused by a
grossly negligent act of Citibank; the award of damages in favor of Aznar was
based on Article 117034 of the Civil Code, i.e., there was fraud, negligence or
delay in the performance of its obligation; there was no proof, however that
Citibank committed fraud or delay or that it contravened its obligations
towards Aznar; the terms and conditions of the credit card cannot be
considered as a contract of adhesion since Aznar was entirely free to reject
the card if he did not want the conditions stipulated therein; a person whose
stature is such that he is expected to be more prudent with respect to his
transactions cannot later on be heard to complain for being ignorant or
having been forced into merely consenting to the contract. 35
In his Reply, Aznar contended that to a layman, the term "blacklisting" is
synonymous with the words "hot list" or "declared overlimit"; and whether his
card was blacklisted or declared over the limit, the same was dishonored due
to the fault or gross negligence of Citibank.36
Aznar also filed a Memorandum raising as issues the following:
I. Whether or not the augmentation deposit in the amount
of P485,000.00 of the Petitioner constitutes relative extinctive

novation;
II. Whether or not the purchases made by Petitioner were beyond his
credit limit;
III. Whether or not the issues of dishonor by reason of overlimit was
tried with the consent of the parties;
IV. Whether or not the "On Line Authorization Report" is an electronic
document."
V. Whether or not the "On Line Authorization Report" constitutes
electronic evidence;
VI. Whether or not the agreement between the parties is a contract of
adhesion;
VII. Whether or not the Respondent is negligent in not crediting the
deposits of the Respondent.37
Aznar further averred in his Memorandum that Citibank assured him that with
the use of his Mastercard, he would never be turned down by any merchant
store, and that under Section 43, Rule 130 of the Rules of Court, Exh. "G" is
admissible in evidence.38
Citibank also filed a Memorandum reiterating its earlier arguments. 39

A. Okey. When I presented this Mastercard, my card rather, at the Merchants

store, I do not know, they called up somebody for verification then later they
told me that "your card is being denied". So, I am not in a position to answer
that. I do not know whom they called up; where they verified. So, when it is
denied thats presumed to be blacklisted.
Q. So the word that was used was denied?
A. Denied.
Q. And after you were told that your card was denied you presumed
that it was blacklisted?
A. Definitely.
Q. So your statement that your card was allegedly blacklisted is only
your presumption drawn from the fact, from your allegations, that it
was denied at the merchandise store?
A. Yes, sir.42 (Emphasis supplied)
The dishonor of Aznars Mastercard is not sufficient to support a conclusion
that said credit card was blacklisted by Citibank, especially in view of Aznars
own admission that in other merchant establishments in Kuala Lumpur and
Singapore, his Mastercard was accepted and honored.43

The answer is no.

Aznar puts much weight on the ON-LINE AUTHORIZATION FOREIGN ACCOUNT

ACTIVITY REPORT, a computer print-out handed to Aznar by Ingtan Agency,
marked as Exh. "G", to prove that his Mastercard was dishonored for being
blacklisted. On said print-out appears the words "DECL OVERLIMIT" opposite
Account No. 5423-3920-0786-7012.

It is basic that in civil cases, the burden of proof rests on the plaintiff to
establish his case based on a preponderance of evidence. The party that
alleges a fact also has the burden of proving it.40

As correctly pointed out by the RTC and the CA, however, such exhibit cannot
be considered admissible as its authenticity and due execution were not
sufficiently established by petitioner.

In the complaint Aznar filed before the RTC, he claimed that Citibank
blacklisted his Mastercard which caused its dishonor in several
establishments in Malaysia, Singapore, and Indonesia, particularly in Ingtan
Agency in Indonesia where he was humiliated when its staff insinuated that
he could be a swindler trying to use a blacklisted card.

The prevailing rule at the time of the promulgation of the RTC Decision is
Section 20 of Rule 132 of the Rules of Court. It provides that whenever any
private document offered as authentic is received in evidence, its due
execution and authenticity must be proved either by (a) anyone who saw the
document executed or written; or (b) by evidence of the genuineness of the
signature or handwriting of the maker.

Stripped to its essentials, the only question that needs to be answered is:
whether Aznar has established his claim against Citibank.

As correctly found by the RTC in its May 29, 1998 Decision, Aznar failed to
prove with a preponderance of evidence that Citibank blacklisted his
Mastercard or placed the same on the "hot list."41
Aznar in his testimony admitted that he had no personal knowledge that his
Mastercard was blacklisted by Citibank and only presumed such fact from the
dishonor of his card.
Q Now, paragraph 12 also states and I quote: "its entry in the "hot" list was
confirmed to be authentic".
Now, who confirmed that the blacklisting of your Preferred Citibank
Mastercard was authentic?

Aznar, who testified on the authenticity of Exh. "G," did not actually see the
document executed or written, neither was he able to provide evidence on
the genuineness of the signature or handwriting of Nubi, who handed to him
said computer print-out. Indeed, all he was able to allege in his testimony are
the following:
Q I show to you a Computer Print Out captioned as On Line Authorization
Activity Report where it is shown that the Preferred Master Card Number
5423392007867012 was denied as per notation on the margin of this
Computer Print Out, is this the document evidencing the dishonor of your
Preferred Master Card?

xxxx
A Yes sir, after that Ingtan incident, I went straight to the Service Agency
there and on the left hand side you will be able to see the name of the person
in-charged [sic] there certifying that really my card is being blacklisted and
there is the signature there of the agency.
ATTY. NAVARRO:

considered as sufficient to show said print-outs integrity and reliability. As

correctly pointed out by Judge Marcos in his May 29, 1998 Decision, Exh. "G"
does not show on its face that it was issued by Ingtan Agency as Aznar
merely mentioned in passing how he was able to secure the print-out from
the agency; Aznar also failed to show the specific business address of the
source of the computer print-out because while the name of Ingtan Agency
was mentioned by Aznar, its business address was not reflected in the printout.45

The witness, your honor, is pointing to the signature over the handwritten
name of Victrina Elnado Nubi which I pray, your honor, that the Computer
Print Out be marked as our Exhibit "G" and the remarks at the left hand
bottom portion of Victorina Elnado Nubi with her signature thereon be
encircled and be marked as our Exhibit "G-1".

Indeed, Aznar failed to demonstrate how the information reflected on the

print-out was generated and how the said information could be relied upon as
true. In fact, Aznar to repeat, testified as follows:

xxxx

Q Now, paragraph 12 also states and I quote: "its entry in the "hot" list was
confirmed to be authentic"

Q Mr. Aznar, where did you secure this Computer Print Out marked
as Exhibit "G"?
A This is provided by that Agency, your honor. They were the ones
who provided me with this. So what the lady did, she gave me the
Statement and I requested her to sign to show proof that my
Preferred Master Card has been rejected.44 (Emphasis supplied).
Even if examined under the Rules on Electronic Evidence, which took effect
on August 1, 2001, and which is being invoked by Aznar in this case, the
authentication of Exh. "G" would still be found wanting.
Pertinent sections of Rule 5 read:
Section 1. Burden of proving authenticity. The person seeking to introduce
an electronic document in any legal proceeding has the burden of proving its
authenticity in the manner provided in this Rule.
Section 2. Manner of authentication. Before any private electronic
document offered as authentic is received in evidence, its authenticity must
be proved by any of the following means:
(a) by evidence that it had been digitally signed by the person
purported to have signed the same;
(b) by evidence that other appropriate security procedures or devices
as may be authorized by the Supreme Court or by law for
authentication of electronic documents were applied to the
document; or
(c) by other evidence showing its integrity and reliability to the
satisfaction of the judge.
Aznar claims that his testimony complies with par. (c), i.e., it constitutes the
"other evidence showing integrity and reliability of Exh. "G" to the
satisfaction of the judge." The Court is not convinced. Aznars testimony that
the person from Ingtan Agency merely handed him the computer print-out
and that he thereafter asked said person to sign the same cannot be

ATTY. NERI

Now, who confirmed that the blacklisting of your Preferred Citibank

Mastercard was authentic?
A Okey. When I presented this Mastercard, my card rather, at the Merchants
store, I do not know, they called up somebody for verification then later they
told me that "your card is being denied". So, I am not in a position to answer
that. I do not know whom they called up; where they verified. So,
when it is denied thats presumed to be blacklisted.46 (Emphasis
supplied)
Aznar next invokes Section 43 of Rule 130 of the Rules of Court, which
pertains to entries in the course of business, to support Exh. "G". Said
provision reads:
Sec. 43. 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 rule, however, the following conditions are required:
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.47

As correctly pointed out by the RTC in its May 29, 1998 Decision, there
appears on the computer print-out the name of a certain "Victrina Elnado
Nubi" and a signature purportedly belonging to her, and at the left dorsal side
were handwritten the words "Sorry for the delay since the records had to be
retrieved. Regards. Darryl Mario." It is not clear therefore if it was Nubi who
encoded the information stated in the print-out and was the one who printed
the same. The handwritten annotation signed by a certain Darryl Mario even
suggests that it was Mario who printed the same and only handed the printout to Nubi. The identity of the entrant, required by the provision above
mentioned, was therefore not established. Neither did petitioner establish in
what professional capacity did Mario or Nubi make the entries, or whether the
entries were made in the performance of their duty in the ordinary or regular
course of business or duty.
And even if Exh. "G" is admitted as evidence, it only shows that the use of
the credit card of petitioner was denied because it was already over the limit.
There is no allegation in the Complaint or evidence to show that there was
gross negligence on the part of Citibank in declaring that the credit card has
been used over the limit.
The Court is also perplexed that stated on Exh. "G" is the amount of
"6,289,195.10" opposite petitioner's account number, which data, petitioner
did not clarify.48 As plaintiff in this case, it was incumbent on him to prove
that he did not actually incur the said amount which is above his credit limit.
As it is, the Court cannot see how Exh. "G" could help petitioner's claim for
damages.
The claim of petitioner that Citibank blacklisted his card through fraud or
gross negligence is likewise effectively negated by the evidence of Citibank
which was correctly upheld by the RTC and the CA, to wit:

Between said computer print out (Exhibit G) and the Warning Cancellation
Bulletins (Exhibits 3 to 8 and their submarkings) the latter documents
adduced by defendant are entitled to greater weight than that said computer
print out presented by plaintiff that bears on the issue of whether the
plaintiffs preferred master card was actually placed in the hot list or
blacklisted for the following reasons:
The first reason is that the due execution and authentication of these
Warning Cancellation Bulletins (or WCB) have been duly established and
identified by defendants own witness, Dennis Flores, one of the banks
officers, who is the head of its credit card department, and, therefore,
competent to testify on the said bulletins as having been issued by the
defendant bank showing that plaintiffs preferred master credit card was
never blacklisted or placed in the Banks hot list. But on the other hand,
plaintiffs computer print out (Exhibit G) was never authenticated or its due
execution had never been duly established. Thus, between a set of duly
authenticated commercial documents, the Warning Cancellation Bulletins
(Exhibits 3 to 8 and their submarkings), presented by defendants (sic) and
an unauthenticated private document, plaintiffs computer print out (Exhibit
G), the former deserves greater evidentiary weight supporting the findings
of this Court that plaintiffs preferred master card (Exhibit 1) had never been
blacklisted at all or placed in a so-called hot list by defendant. 49
Petitioner next argues that with the additional deposit he made in his account
which was accepted by Citibank, there was an implied novation and Citibank
was under the obligation to increase his credit limit and make the necessary
entries in its computerized systems in order that petitioner may not
encounter any embarrassing situation with the use of his credit card. Again,
the Court finds that petitioner's argument on this point has no leg to stand
on.

xxx Mr. Dennis Flores, the Head of the Credit Card Department of defendant
Bank, presented documents known as Warning Cancellation Bulletin for July
10, 17, 24, and 31, 1994 (Exhibits 3, 3-1 to 3-38, 4, 4-1 to 4-38 5, 51 to 5-39 and 6, 6-1 to 6-39), for August 7, 1994 (Exhibit[s] 7, 7-1 to
7-37), for August 8, 1994 (Exhibit[s] 8, 8-1 to 8-20) which show that
plaintiffs Citibank preferred mastercard was not placed in a hot list or was
not blacklisted.

Citibank never denied that it received petitioners additional deposit. 50 It even

claimed that petitioner was able to purchase plane tickets from Cebu to Kuala
Lumpur in the amount of P237,170.00, which amount was beyond
hisP150,000.00 limit, because it was able to credit petitioners additional
deposit to his account. Flores of Citibank testified:

The Warning Cancellation Bulletins (WCB) (Exhibits 3, 4, 5, 6, 7, 8 and

their submarkings) which covered the period of four (4) days in July 1994
(from July 10, 17, 24 and 31, 1994), and two (2) days in August 1994, (August
7 and 8, 1994), when plaintiff traveled in the aforementioned Asian countries
showed that said Citibank preferred mastercard had never been placed in a
hot list or the same was blacklisted, let alone the fact that all the credit
cards which had been cancelled by the defendant bank were all contained,
reported and listed in said Warning Cancellation Bulletin which were issued
and released on a regular basis.

Q When was this ticket purchased, after the account was augmented

These three hundred (300) Warning Cancellation Bulletins pieces of

documentary proofs, all in all, adduced by defendant pointed to the fact that
said plaintiffs credit car (sic) was not among those found in said bulletins as
having been cancelled for the period for which the said bulletins had been
issued.

COURT:

or before?
A After the account was augmented, Your Honor, because there is no way we
can approve a P250,000.00 purchase with a P150,000.00 credit limit. 51
xxx
ATTY. NERI:
For the record, your honor, the deposit of P450,000.00 was made as
per exhibit of the plaintiff on June 28. The purchase of the tickets
amount to P237,000.00 was approved and debited on the account of
Mr. Aznar on July 20, your honor. The deposit was made about a
month before the purchase of the tickets as per documentary

exhibits, your honor.

COURT:
So, Atty. Navarro, what do you say to that explanation?
ATTY. NAVARRO [counsel of petitioner]:
That is correct, your honor, that is borne out by the records, your
honor. (Emphasis supplied)
COURT: (to witness)
Q So, I think Atty. Navarro is only after whether a credit line could be
extended?
A Yes, your honor.
Q Even if there is no augmenting?
A No, sir, it is not possible. So, the only way the P237,000.00 transaction
could be approved was by way of advance payment which actually
happened in this case because there is no way that the P237,000.00
can be approved with the P150,000.00 credit limit.52 (Emphasis
supplied)
The allegations of blacklisting not having been proved, is Citibank liable for
damages for the dishonor of Aznars Mastercard?
Again, the answer is no.
Citibank, in its attempt to evade liability, invokes paragraphs 7 and 15 of the
terms and conditions governing the issuance of its Mastercard which read:
7. MERCHANT AFFILIATES. [Citibank is] not responsible if the Card is not
honored by any merchant affiliate for any reason. Furthermore, [the
cardholder] will not hold [Citibank] responsible for any defective product or
service purchased through the Card.
xxxx
15. LIMITATION OF LIABILITY. In any action arising from this agreement or any
incident thereto which [the cardholder] or any other party may file against
[Citibank], [Citibanks] liability shall not exceed One Thousand Pesos
[P1,000.00] or the actual damages proven, whichever is lesser. 53
On this point, the Court agrees with Aznar that the terms and conditions of
Citibanks Mastercard constitute a contract of adhesion. It is settled that
contracts between cardholders and the credit card companies are contracts
of adhesion, so-called, because their terms are prepared by only one party
while the other merely affixes his signature signifying his adhesion thereto. 54
In this case, paragraph 7 of the terms and conditions states that "[Citibank is]
not responsible if the Card is not honored by any merchant affiliate for any
reason x x x". While it is true that Citibank may have no control of all the

actions of its merchant affiliates, and should not be held liable therefor, it is
incorrect, however, to give it blanket freedom from liability if its card is
dishonored by any merchant affiliate for any reason. Such phrase renders the
statement vague and as the said terms and conditions constitute a contract
of adhesion, any ambiguity in its provisions must be construed against the
party who prepared the contract,55 in this case Citibank.
Citibank also invokes paragraph 15 of its terms and conditions which limits its
liability to P1,000.00 or the actual damage proven, whichever is lesser.
Again, such stipulation cannot be considered as valid for being
unconscionable as it precludes payment of a larger amount even though
damage may be clearly proven. This Court is not precluded from ruling out
blind adherence to the terms of a contract if the attendant facts and
circumstances show that they should be ignored for being obviously too onesided.56
The invalidity of the terms and conditions being invoked by Citibank,
notwithstanding, the Court still cannot award damages in favor of petitioner.
It is settled that in order that a plaintiff may maintain an action for the
injuries of which he complains, he must establish that such injuries resulted
from a breach of duty which the defendant owed to the plaintiff a
concurrence of injury to the plaintiff and legal responsibility by the person
causing it. The underlying basis for the award of tort damages is the premise
that an individual was injured in contemplation of law; thus there must first
be a breach before damages may be awarded and the breach of such duty
should be the proximate cause of the injury. 57
It is not enough that one merely suffered sleepless nights, mental anguish or
serious anxiety as a result of the actuations of the other party. It is also
required that a culpable act or omission was factually established, that proof
that the wrongful act or omission of the defendant is shown as the proximate
cause of the damage sustained by the claimant and that the case is
predicated on any of the instances expressed or envisioned by Arts.
221958 and 222059 of the Civil Code.60
In culpa contractual or breach of contract, moral damages are recoverable
only if the defendant has acted fraudulently or in bad faith, or is found guilty
of gross negligence amounting to bad faith, or in wanton disregard of his
contractual obligations. The breach must be wanton, reckless, malicious or in
bad faith, oppressive or abusive.61
While the Court commiserates with Aznar for whatever undue
embarrassment he suffered when his credit card was dishonored by Ingtan
Agency, especially when the agencys personnel insinuated that he could be
a swindler trying to use blacklisted cards, the Court cannot grant his present
petition as he failed to show by preponderance of evidence that Citibank
breached any obligation that would make it answerable for said suffering.
As the Court pronounced in BPI Express Card Corporation v. Court of
Appeals,62
We do not dispute the findings of the lower court that private respondent
suffered damages as a result of the cancellation of his credit card. However,

there is a material distinction between damages and injury. Injury is the

illegal invasion of a legal right; damage is the loss, hurt, or harm which
results from the injury; and damages are the recompense or compensation
awarded for the damage suffered. Thus, there can be damage without injury
to those instances in which the loss or harm was not the result of a violation
of a legal duty. In such cases, the consequences must be borne by the injured
person alone, the law affords no remedy for damages resulting from an act
which does not amount to a legal injury or wrong. These situations are often
called damnum absque injuria.63
WHEREFORE, the petition is denied for lack of merit.
SO ORDERED.
THIRD DIVISION
G.R. No. 182886, March 09, 2015
SPOUSES SALVADOR P. NORBERTE, JR. AND ELIZABETH S.
NORBERTE, Petitioners, v. SPOUSES FELICISIMO G. MEJIA AND ELVIRA
C. MEJIA AND/OR THEIR HEIRS, REPRESENTED BY ALEXIS MEJIAQUERUBIN, Respondent.
DECISION
PERALTA, J.:
Before the Court is a Petition for Review under Rule 45 of the Rules of Court
which petitioners spouses Salvador P. Norberte, Jr. and Elizabeth S. Norberte
filed, assailing the Decision1 of the Court of Appeals (CA), dated September
21, 2007, and its Resolution2 dated May 14, 2008 in CA-G.R. SP No. 91926.
The CA remanded the case to the Regional Trial Court (RTC) of Caloocan City,
Branch
129
for
further
proceedings.
The

antecedents

of

the

instant

case

are

as

follows:

The subject property in the case at bar is a 160-square-meter parcel of land

located in the Calaanan District, Caloocan City which was previously owned
by Edgardo Ongsiaco. It appeared that Ongsiaco allowed Dativa Gonzales,
mother of respondent Felicisimo G. Mejia, to occupy said lot and build a
house thereon. However, Ongsiaco later sold the same land to the spouses
Carlos and Josefina Legaspi (the Spouses Legaspi), who caused the
registration of the property in their names. Thus, the Spouses Legaspi filed an
action
for
ejectment
against
Gonzales.
On March 28, 1988, the Spouses Legaspi executed a Deed of Conditional Sale
over the subject lot in favor of petitioners spouses Salvador and Elizabeth
Norberte (the Spouses Norberte). As consideration for the sale, the parties
agreed on P160,000.00 as the amount of the purchase price. After the
Spouses Norberte paid the downpayment in the amount of P20,000.00, the
deed of conditional sale was duly notarized and annotated at the back of the
property's
title.
However, on July 6, 1990, the Spouses Legaspi again sold the same property,
this time to respondents spouses Felicisimo and Elvira Mejia (the Spouses

Mejia). This transaction resulted in the execution of a compromise agreement

between them, leading to the dismissal of the ejectment case earlier filed
against Gonzales. This prompted the Spouses Norberte to file an action to
annul said sale to the Spouses Mejia and successfully obtained a judgment in
their
favor.
On June 6, 2003, upon payment of the balance of the purchase price, the wife
and the children of the then deceased Carlos Legaspi finally executed a Deed
of Absolute Sale in favor of the Spouses Norberte. Thus, the Norbertes made
a demand to vacate against the Mejias. Since the demand was left unheeded,
the Spouses Norberte filed a complaint for ejectment on November 6, 2003
before the Caloocan Metropolitan Trial Court (MeTC), Branch 49. The case was
docketed
as
Civil
Case
No.
03-27540.
On December 22, 2004, the Caloocan MeTC dismissed 3 the complaint for lack
of jurisdiction since, under the circumstances, the summary action for
unlawful detainer was no longer available and the proper action should have
been accion publiciana. The Spouses Norberte then brought the case to the
RTC and likewise filed a motion to cite in contempt of court the counsel of the
Mejias, Atty. Nancy Quimpo, for failure to furnish the court the names and
addresses of the legal representatives of the Spouses Mejia, who both died
during the course of the proceedings. Atty. Quimpo, on the other hand,
contended that the action for ejectment had been effectively extinguished by
the
death
of
her
clients.
The RTC, thereafter, affirmed in toto the decision of the MeTC in a very brief
Order
dated
April
29,
2005,
the
full
text
of
which
reads:chanroblesvirtuallawlibrary
Above captioned case is an appeal interposed by the herein PlaintiffsAppellants from the Decision of the Court a quo, the dispositive portion of
which
states
the
following:
WHEREFORE, for lack of jurisdiction this case is hereby dismissed.
For

lack

of

basis,

the

SO

Counterclaim

is

likewise

dismissed.
ORDERED.

This Court, in the exercise of its appellate jurisdiction, hereby AFFIRMS the
Decision of the Court below in toto for being in accord with the facts and the
law
of
the
case.
SO ORDERED.4cralawlawlibrary
It also denied the motion to cite Atty. Quimpo in contempt of court.
The Spouses Norberte thus elevated the case to the CA, seeking the reversal
of the rulings of the courts below. On September 21, 2007, the appellate
court ruled:chanroblesvirtuallawlibrary
WHEREFORE, premises considered, the case is REMANDED to Branch 129 of
the Regional Trial Court of Caloocan City for further proceedings.
Atty. Nancy Quimpo is, on the other hand, REPRIMANDED for her failure
and/or refusal to completely perform her duties under Section 16, Rule 3 of

the 1997 Rules of Civil Procedure. She is further warned that a repetition of
similar
act
or
omission
will
be
dealt
with
more
severely.
SO ORDERED.5cralawlawlibrary
The Norbertes then filed a Motion for Reconsideration, but the same was also
denied.
Hence,
the
present
petition.
The Spouses Norberte mainly argue that their action is one for unlawful
detainer and, as such, the MeTC has jurisdiction over the same. They likewise
contend that the March 28, 1988 Deed of Conditional Sale is not absolute in
nature
but
is,
in
fact,
a
mere
contract
to
sell.
The

Court

Finds

the

petition

to

be

without

merit.

In summary ejectment suits (unlawful detainer and forcible entry), the only
issue to be determined is who between the contending parties has better
possession of the contested property. The' Municipal Trial Courts, Metropolitan
Trial Courts in Cities, and the Municipal Circuit Trial Courts exercise exclusive
original jurisdiction over these cases and the proceedings are governed by
the Rules on Summary Procedure. On the other hand, accion publiciana, also
known as accion plenaria de posesion, is a plenary action for the recovery of
possession in an ordinary civil proceeding to determine the better and legal
right to possess, independently of title. The main distinctions between these
two remedies lie in the period within which the action can be instituted and in
the court which exercises jurisdiction over the matter. Actions for unlawful
detainer and forcible entry must be filed within one (1) year from the date
possession is lost, while accion publiciana may be filed only after the
expiration of that period but within the period prescribed in the statute of
limitations. An accion publiciana may only be filed with the RTC, while a
complaint, for unlawful detainer or forcible entry may only be filed with the
first
level
courts.6
The Court sustains the finding that the MeTC had no jurisdiction over the
case. The ownership of the subject property passed to the Spouses Norberte
by constructive delivery upon the execution of the March 28, 1988 contract of
conditional sale between them and the Legaspis. Although denominated as
conditional, a deed of sale is absolute in nature in the absence of any
stipulation reserving title to the seller until full payment of the purchase
price. In such case, ownership of the thing sold passes to the buyer upon
actual or constructive delivery.7 In a contract of sale, the title to the property
passes to the buyer upon the delivery of the thing sold. In a contract to sell,
on the other hand, the ownership is, by agreement, retained by the vendor
and is not to pass to the vendee until full payment of the purchase
price.8 Here, there was already a perfected contract. The condition imposed
was only on the performance of the obligations of the parties. 9 As admitted
by the Spouses Norberte themselves, there is nothing in the Deed of
Conditional Sale which expressly provides for the retention of title or
ownership of the property by the sellers until full payment of the purchase
price.10 There is clearly no express reservation of title made by the Legaspis
over the property, or any provision which would impose payment of the price
as a condition for the contract's entering into force. 11 The absence of such
stipulation indicates that what the parties have actually contemplated was a
contract
of
absolute
sale.12

Therefore, the Spouses Norberte were deemed to have been unlawfully

deprived of the lawful possession of the property by the Mejias upon the
execution of the contract of conditional sale on March 28, 1998.
Unfortunately, they filed their complaint for ejectment only on November 6,
2003, way beyond the prescribed period of one (1) year within which the
action should be commenced. However, the RTC should not have dismissed
the case. Rather, it should have tried it as one for accion publiciana, as if it
had originally been filed with it, in accordance with paragraph 1 of Section
8,13 Rule 40 of the Rules of Court. It likewise failed to state any findings of
facts and conclusions of law on which it based its affirmance of the MeTC
Decision.
Finally, Atty. Quimpo should be reprimanded for her failure and refusal to
furnish the courts of the names and addresses of the spouses' legal
representatives despite the death of Felicisimo Mejia on June 23, 2004, and of
Elvira Mejia on March 23, 2005. An ejectment case survives the death of a
party and the death of the Spouses Mejia did not extinguish the action for
ejectment instituted against them. That action, not being a purely personal
one, survived their deaths and their heirs can take their place to protect and
represent
their
interests
therein.cralawred
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals,
dated September 21, 2007, and its Resolution dated May 14, 2008 in CA-G.R.
SP
No.
91926
are
hereby AFFIRMED.
SO ORDERED.chanroblesvirtuallawlibrary
Republic
SUPREME
Manila

of

the

Philippines
COURT

SECOND DIVISION
G.R. Nos. 79597-98

May 20, 1991

HEIRS OF DEMETRIA LACSA, represented by: BIENVENIDO CABAIS,

VIRGINIA CABAIS, LEONOR CABAIS-PENA and DOLORES CABAISMAGPAYO, petitioners,
vs.
COURT OF APPEALS, AURELIO D. SONGCO, ANGEL D. SONGCO
ENCARNACION D. SONGCO, LOURDES D. SONGCO, ANGELA S.
SONGCO, LUDIVINA S. SONGCO, JOSEPHINE S. SONGCO, ALBERT S.
SONGCO, INOSENCIO S. SONGCO, JAIME S. SONGCO, MARTIN S.
SONGCO, and BERNARD S. SONGCO, Being Heirs of Inocencio
Songco, respondents.
Norbin
P.
Dimalanta
Dante S. David for private respondents.

for

petitioners.

PADILLA, J.:
This is a petition for review on certiorari of the decision * of respondent Court

of Appeals in CA-G.R. CV Nos. 08397-08398 dated 16 July 1987 affirming with

modification the decision of the Regional Trial Court of Guagua, Pampanga, in
favor of private respondents, and its resolution dated 14 August 1987
denying the motion for reconsideration.
This petition which originated with the Regional Trial Court of Guagua,
Pampanga involves two (2) cases, namely: Civil Case No. G-1190 and Civil
Case No. G-1332. 1
Civil Case No. G-1190 is an action for recovery of possession with damages
and preliminary injunction filed by herein petitioners, the heirs of Demetria
Lacsa, against Aurelio Songco and John Doe based on the principal
allegations that petitioners are heirs of deceased Demetria Lacsa who, during
her lifetime, was the owner of a certain parcel of land consisting partly of a
fishpond and partly of uncultivated open space, located in Bancal, Guagua,
Pampanga, evidenced by Original Certificate of Title No. RO-1038 (11725);
that the principal respondent and his predecessor-in-interest who are neither
co-owners of the land nor tenants thereof, thru stealth, fraud and other forms
of machination, succeeded in occupying or possessing the fishpond of said
parcel of land and caused the open space therein to be cleared for expanded
occupancy thereof, and refused to vacate the same despite petitioner's
demands on them to vacate. 2
Civil Case No. G-1332 is an action also by herein petitioners against private
respondents before the same lower court for cancellation of title, ownership
with damages and preliminary injunction, based on the allegations that they
are the heirs of Demetria Lacsa who was the owner of the land also involved
in Civil Case No. G-1190; that the herein private respondents and their
predecessors-in-interest, thru stealth, fraud and other forms of machination,
succeeded in occupying or possessing the fishpond of the said parcel of land,
and later abandoned the same but only after the case was filed and after all
the fish were transferred to the adjoining fishpond owned by the private
respondents; that on 31 October 1923 and 15 March 1924, by presenting to
the Register of Deeds of Pampanga certain forged and absolutely simulated
documents, namely: "TRADUCCION AL CASTELLANO DE LA ESCRITURA DE
PARTICION EXTRAJUDICIAL" and "ESCRITURA DE VENTA ABSOLUTA",
respectively, and by means of false pretenses and misrepresentation,
Inocencio Songco, the private respondents' predecessor-in-interest,
succeeded in transferring the title to said property in his name, to the
damage and prejudice of the petitioners; and that a preliminary injunction
was necessary to prevent the private respondents from disposing of said
property. 3
Private respondents denied the material allegations of both complaints and
alleged as special and affirmative defenses, petitioners' lack of cause of
action, for the reason that Original Certificate of Title No. RO-1038 (11725)
was merely a reconstituted copy issued in April 1983 upon petitioners'
expedient claim that the owner's duplicate copy thereof had been missing
when the truth of the matter was that OCT No. RO-1038 (11725) in the name
of Demetria Lacsa, had long been cancelled and superseded by TCT No. 794
in the name of Alberta Guevarra and Juan Limpin by virtue of the document
entitled "TRADUCCION AL CASTELLANO DE LA ESCRITURA DE PARTICION
EXTRA-JUDICIAL" entered into by the heirs of Demetria Lacsa; that the latter
TCT was in turn superseded by TCT No. 929 issued in the name of Inocencio
Songco (father of private respondents) by virtue of a document entitled

"ESCRITURA DE VENTA ABSOLUTA" executed by spouses Juan Limpin and

Alberta Guevarra in favor of said Inocencio Songo. 4
Private respondents, in their answer, pleaded a counterclaim against
petitioners based on allegations that the latter headed by Carlito Magpayo,
by force and intimidation, took possession of a portion of the fishpond in the
land and occupied a hut therein, that at that time, private respondents had
3,000 bangus fingerlings left in the fishpond which upon petitioners' harvest
thereof left private respondents deprived and damaged in the amount of
P50,000.00 more or less; that such illegal occupancy caused private
respondents to suffer unrealized income and profits, sleepless nights,
wounded feelings and serious anxiety which entitled them to actual, moral
and exemplary damages as well as attorney's fees and P500.00 appearance
fee for every hearing. 5
On 20 January 1985, the parties assisted by their respective counsel filed in
Civil Case No. G-1332 a joint stipulation of facts, alleging:
1. That on June 9, 1982, the plaintiffs, being heirs of Demetria Lacsa,
filed Civil Case No. 1190;
2. That after the defendants filed their Answer in the said Civil Case
No. G-1190, and learning the land subject of the two (2)
abovementioned cases (sic), said plaintiffs filed a Motion for Leave to
Admit Amended and/or Supplemental Complaint.
3. That the said motion was denied by the Honorable Court, hence,
said plaintiffs filed Civil Case No. G-1332, the above-entitled case,
with the same cause of action as that of the proposed Amended
and/or Supplemental Complaint;
4. That the evidences of both parties in Civil Case No. G-1190 and in
the above-entitled case are practically and literally the same;
5. That in view of the foregoing, and in order to avoid duplicity of
action by repeatedly presenting the same act of evidences and same
set of witnesses, the parties mutually agreed as they hereby agree
and stipulate that any and all evidences presented under Civil Case
No. 1190 shall be adopted as evidences for both parties in the aboveentitled case, and upon submission for resolution of Civil Case No. G1190, the above-entitled case shall likewise be deemed submitted for
resolution on the basis of the evidence presented in the same Civil
Case No. G-1190. 6
On the basis of this joint stipulation of facts, the lower court held that:
. . . the fishpond in question was originally owned by Demetria Lacsa
under Original Certificate of Title No. 11725. After Demetria Lacsa
died her two daughters Alberta Guevarra and Ambrocia Guevarra
with their respective husbands Juan Limpin and Damaso Cabais
entered into an extrajudicial partition of the properties left by
Demetria Lacsa under the document "Traduccion Al Castellano de la
Escritura de Partition Extra-judicial" dated April 7, 1923 (Exhibits
"3","3-A" and "3-B") wherein the fishpond in question was adjudicated
to Alberta Guevarra and which deed was duly registered in the Office

of the Registry of Deeds of Pampanga as evidenced by the

certification of the Deputy Register of Deeds marked as Exhibit "3-C".
Aside from the "Traduccion Al Castellano de la Escritura de Particion
Extrajudicial" written in the Spanish language, the spouses Alberta
Guevarra and Juan Limpin and the spouses Ambrosia Guevarra and
Damaso Cabais executed on April 7, 1923, another deed of partition
in the Pampango dialect marked as Exhibit "3-D" "wherein the
fishpond in question was adjudicated to Alberta Guevarra. As a
consequence, Original Certificate of Title No. 794 (Exhibit "4") was
issued to spouses Alberta Guevarra and Juan Limpin. On January 20,
1924, the spouses Juan Limpin and Alberta Guevarra sold the
fishpond in question to Inocencio Songco under the deed entitled
"Escritura de Venta Absoluta" (Exhibits "7" and "7-A") which was duly
registered in the Office of the Registry of Deeds of Pampanga as
evidenced by the certification of the Deputy Register of Deeds
marked Exhibit "7-B". As a result of the sale, Transfer Certificate of
Title No. 794 (Exhibit "4") in the name of the spouses Alberta
Guevarra and Juan Limpin was cancelled by the Office of the Registry
of Deeds of Pampanga and Transfer Certificate of Title No. 929 was
issued
to
Inocencio
Songco." 7

(G) Ordering the plaintiffs to pay jointly and severally, the defendants
the sum of Ten Thousand (P10,000.00) Pesos, Philippine Currency, as
attorney's fees;
(H) Costs against the plaintiffs.
SO ORDERED.

Petitioners appealed the above-mentioned decision to the respondent Court

of Appeals assigning the following errors allegedly committed by the lower
court:
I. IN FAILING TO APPRECIATE THE PREPONDERANCE OF EVIDENCE IN
FAVOR OF THE PLAINTIFFS-APPELLANTS THAT THE TWO DOCUMENTS
(EXHS. 3 & 7 AND THEIR SUB-MARKINGS) WERE FORGED AND
ABSOLUTELY SIMULATED DOCUMENTS. HENCE, NULL AND VOID;
II. IN HOLDING THAT THERE WAS NO EVIDENCE THAT THE SIGNATURE
OF JUAN LIMPIN AND THUMBMARK OF ALBERTA GUEVARRA
APPEARING ON THE EXCRITUA DE VENTA ABSOLUTA (EXHS. 7 & 7-A)
WERE FORGED;

The lower court thus held that the fishpond in question belongs to the private
respondents, having been inherited by them from their deceased father
Inocencio Songco. 8

III. IN APPRECIATING IN FAVOR OF THE APPELLEES THE DOCUMENTS

PRESENTED BY WITNESS JESUS CRUZ WHEN THEIR SOURCES COULD
NOT BE ACCOUNTED FOR AND THEIR AUTHENTICITY IS IN QUESTION;

The dispositive portion of the judgment in favor of private respondents reads:

IV. IN HOLDING THAT INOCENCIO SONGCO, THE PREDECESSOR-ININTEREST OF THE APPELLEES WAS AN INNOCENT PURCHASER FOR
VALUE;

WHEREFORE, JUDGMENT is hereby rendered

In Civil Case No. G - 1190
(A) Ordering the dismissal of the complaint in Civil Case No. G-1190;
In Civil Case No. G-1332
(B) Ordering the dismissal of the complaint in Civil Case No. G-1332;
In Both Civil Case No. G-1190 and Civil Case No. G-1332
(C) Ordering the cancellation of Original Certificate of Title No. RO1038 (11725) in the name of Demetria Lacsa;

V. IN HOLDING THAT TRANSFER CERTIFICATE OF TITLE NO. 929 WAS

ISSUED TO INOCENCIO SONGCO BY THE REGISTERED TRY OF DEEDS
OF PAMPANGA;
VI. IN HOLDING THAT ORIGINAL CERTIFICATE OF TITLE NO. RO-1038
(11725) WAS ISSUED BY THE COURT (CFI-III PAMPANGA) IN EXCESS OF
OR WITHOUT JURISDICTION AND THEREFORE NULL AND VOID;
VII. IN FAILING TO APPRECIATE THAT THE VOLUNTARY ABANDONMENT
OF THE FISHPOND IN QUESTION BY THE APPELLEES WAS A
RECOGNITION OF APPELLANTS' TITLE TO IT;
VIII. IN AWARDING DAMAGES TO THE APPELLEES.

10

(D) Ordering the plaintiffs to restore possession of the fishpond in

question located in Bancal, Guagua, Pampanga, to the defendants
(sic);

The Court of Appeals rendered a decision in the appealed case, the

dispositive portion of which reads:

(E) Ordering the plaintiffs to pay jointly and severally, the defendants
the sum of Twenty Five Thousand (P25,000.00) Pesos, Philippine
Currency, as and for moral damages;

WHEREFORE, the decision appealed from is hereby AFFIRMED with

the modification that appellants are not liable for moral and
exemplary damages as well as attorney's fees.

(F) Ordering the plaintiffs to pay jointly and severally, the defendants
the sum of Twenty Five Thousand (P25,000.00) Pesos, Philippine
Currency, as and for exemplary damages;

SO ORDERED.

11

Petitioners flied a motion for reconsideration with the Court of Appeals but
the same was denied in its resolution dated 14 August 1987. 12 Hence, this

petition.
Petitioners assign the following alleged errors to the Court of Appeals:
I. IN APPLYING THE "ANCIENT DOCUMENT RULE" ON THE
QUESTIONED DOCUMENT ENTITLED "ESCRITURA DE PARTICION
EXTRAJUDICIAL" AND "ESCRITURA DE VENTA ABSOLUTA; AND
MARKED DURING THE TRIAL AS EXHIBITS "3" AND "7", RESPECTIVELY,
FOR THE RESPONDENT HEREIN;
II. IN DISREGARDING THE MANDATORY REQUIREMENT OF THE
NOTARIAL LAW WHICH TOOK EFFECT AS EARLY AS FEBRUARY 1, 1903;
III. IN DISREGARDING THE RULE ON PROOF OF PUBLIC OR OFFICIAL
RECORD, (SEC. 25, RULE 132, RULES OF COURT) 13
Petitioners contend that the Court of Appeals wrongfully applied the "ancient
document rule" provided in Sec. 22, Rule 132 of the Rules of Court. 14 The rule
states that:
Sec. 22. Evidence of execution not necessary. Were a private
writing is more than thirty years old, is produced from a custody in
which it would naturally be found if genuine, and is unblemished by
any alterations or circumstances of suspicion, no other evidence of its
execution and authenticity need be given.
It is submitted by petitioners that under this rule, for a document to be
classified as an "ancient document", it must not only be at least thirty (30)
years old but it must also be found in the proper custody and is unblemished
by alterations and is otherwise free from suspicion. 15 Thus, according to
petitioners, exhibits "3" and "7", entitled "Traduccion Al Castellano de la
Escritura de Particion Extrajudicial" and "Escritura de Venta Absoluta",
respectively, can not qualify under the foregoing rule, for the reason that
since the "first pages" of said documents do not bear the signatures of the
alleged parties thereto, this constitutes an indelible blemish that can beget
unlimited alterations. 16
We are not persuaded by the contention. Under the "ancient document rule,"
for a private ancient document to be exempt from proof of due execution and
authenticity, it is not enough that it be more than thirty (30) years old; it is
also necessary that the following requirements are fulfilled; (1) that it is
produced from a custody in which it would naturally be found if genuine; and
(2) that it is unblemished by any alteration or circumstances of suspicion. 17
The first document, Exhibit "3", entitled 'Traduccion Al Castellano de la
Escritura de Particion Extrajudicial" was executed on 7 April 1923 whereas
the second document, exhibit "7", entitled "Escritura de Venta Absoluta" was
executed on 20 January 1924. These documents are, therefore, more than
thirty (30) years old. Both copies of the aforementioned documents were
certified as exact copies of the original on file with the Office of the Register
of Deeds of Pampanga, by the Deputy Register of Deeds. There is a further
certification with regard to the Pampango translation of the document of
extrajudicial partition which was issued by the Archives division, Bureau of
Records Management of the Department of General Services. 18

Documents which affect real property, in order that they may bind third
parties, must be recorded with the appropriate Register of Deeds. The
documents in question, being certified as copies of originals on file with the
Register of Deeds of Pampanga, can be said to be found in the proper
custody. Clearly, therefore, the first two (2) requirements of the "ancient
document rule" were met.
As to the last requirement that the document must on its face appear to be
genuine, petitioners did not present any conclusive evidence to support their
allegation of falsification of the said documents. They merely alluded to the
fact that the lack of signatures on the first two (2) pages could have easily
led to their substitution. We cannot uphold this surmise absent any proof
whatsoever. As held in one case, a contract apparently honest and lawful on
its face must be treated as such and one who assails the genuineness of such
contract must present conclusive evidence of falsification. 19
Moreover, the last requirement of the "ancient document rule" that a
document must be unblemished by any alteration or circumstances of
suspicion refers to the extrinsic quality of the document itself. The lack of
signatures on the first pages, therefore, absent any alterations or
circumstances of suspicion cannot be held to detract from the fact that the
documents in question, which were certified as copied of the originals on file
with the Register of Deeds of Pampanga, are genuine and free from any
blemish or circumstances of suspicion.
The documents in question are "ancient documents" as envisioned in Sec. 22
of Rule 132 of the Rules of Court.1wphi1Further proof of their due execution
and authenticity is no longer required. Having held that the documents in
question are private writings which are more than thirty (30) years old, come
from the proper repository thereof, and are unblemished by any alteration or
circumstances of suspicion, there is no further need for these documents to
fulfill the requirements of the 1903 Notarial Law. Hence, the other
contentions of the petitioners that the documents do not fulfill the mandatory
requirements of the Notarial Law 20 and that the proper person or public
official was not presented to testify on his certification of the documents in
question, 21 need not be resolved as they would no longer serve any purpose.
WHEREFORE, the Petition is DENIED. The appealed decision of the Court of
Appeals is AFFIRMED. Costs against the petitioners.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

FIRST DIVISION

G.R. No. 86062 June 6, 1990

INTERPACIFIC
TRANSIT,
vs.
RUFO AVILES and JOSEPHINE AVILES, respondents.

INC., petitioner,

Balane, Barican, Cruz, Alampay Law Office for petitioner.

Francisco G. Mendoza private respondents.

CRUZ, J.:
This case hinges on the proper interpretation and application of the rules on
the admissibility of documentary evidence and the viability. of a civil action
for damages arising from the same acts imputed to the defendant in a
criminal action where he has been acquitted.
In the information filed against Rufo and Josephine Aviles, the private
respondents herein, it was alleged that being then sub-agents of Interpacific
Transit, Inc. and as such enjoying its trust and confidence, they collected from
its various clients payments for airway bills in the amount of P204,030.66
which, instead of remitting it to their principal, they unlawfully converted to
their own personal use and benefit. 1
At the trial, the prosecution introduced photocopies of the airway bills
supposedly received by the accused for which they had not rendered proper
accounting. This was done in, the course of the direct examination of one of
the prosecution witnesses. 2 The defense objected to their presentation,
invoking the best evidence rule. The prosecution said it would submit the
original airway bills in due time. Upon such undertaking, the trial court
allowed the marking of the said documents a s Exhibits "B" to "OO." The e
prosecution n did submit the original airway bills nor did it prove their loss to
justify their substitution with secondary evidence. Nevertheless, when the
certified photocopies of the said bills formally were offered, 3 in evidence, the
defense interposed no objection.
In acquitting the accused, Judge Herminio I. Benito of the Regional Trial Court
of Makati rejected the agency theory of the prosecution and held that the
relationship between the petitioner and Rufo Aviles was that of creditor and
debtor only. "Under such relationship,' it declared, "the outstanding account,
if any, of the accused in favor of ITI would be in the nature of an
indebtedness, the non- payment of which does not Constitute estafa." 4
The court' also held that the certified photocopies of the airway by were not
admissible under the rule that "there can be no evidence of a writing the
content of which is the subject of inquiry other' than the writing itself." Loss
of the originals had not been proved to justify the exception to the rule as
one of the prosecution witness had testified that they were still in the ITI
bodega. Neither had it been shown that the originals had been "recorded in
an existing record a certified copy of which is made evidence by law."
In its order denying the motion for reconsideration, the trial court declared
that it "had resolved the issue of whether the accused has civil obligation to
ITI on the basis of the admissibility in evidence of the xerox copies of the
airway bills." 5
Right or wrong, the acquittal on the merits of the accused can no longer be
the subject of an appeal under the double jeopardy rule. However, the
petitioner seeks to press the civil liability of the private respondents, on the

ground that the dismissal of the criminal action did not abate the civil claim
for the recovery of the amount. More to the point, ITI argues that the
evidence of the airways bills should not have been rejected and that it had
sufficiently established the indebtedness of the private respondents to it.
The Court of Appeals 6 affirmed, the decision of the trial court in toto, adding
that the existing record spoken of in Section 2 (e) and (d) of Rule 130 of the
Rules of Court must be in the custody, of a public officer only. It also declared
that:
Since no evidence of civil liability was presented, no necessity
existed on the part of the private respondents to present
evidence of payment of an obligation which was not shown to
exist.
The petitioner now asks this Court to annul that judgment as contrary to law
and the facts established at the As in the courts below, it is insisting on the
admissibility of its evidence to prove the civil liability of the private
respondents.
We agree with the petitioner. The certified photocopies of the airway bills
should have been considered.
In assessing this evidence, the lower courts confined themselves to the best
evidence rule and the nature of the documents being presented, which they
held did not come under any of the exceptions to the rule. There is no
question that the photocopies were secondary evidence and as such were not
admissible unless there was ample proof of the loss of the originals; and
neither were the other exceptions allowed by the Rules applicable. The
trouble is that in rejecting these copies under Rule 130, Section 2, the
respondent court disregarded an equally important principle long observed in
our trial courts and amply supported by jurisprudence.
This is the rule that objection to documentary evidence must be made at the
time it is formally offered. as an exhibit and not before. Objection prior to that
time is premature.
It is instructive at this paint to make a distinction between Identification of
documentary evidence and its formal offer as an exhibit. The first is done in
the course of the trial and is accompanied by the marking of the evidence an
an exhibit. The second is done only when the party rests its case and not
before. The mere fact that a particular document is Identified and marked as
an exhibit does not mean it will be or has been offered as part of the
evidence of the party. The party may decide to formally offer it if it believes
this will advance its cause, and then again it may decide not to do so at all. In
the latter event, the trial court is, under Rule 132, Section 35, not authorized
to consider it.
Objection to the documentary evidence must be made at the time it is
formally offered, not earlier. The Identification of the document before it is
marked as an exhibit does not constitute the formal offer of the document as
evidence for the party presenting it. Objection to the Identification and
marking of the document is not equivalent to objection to the document
when it is formally offered in evidence. What really matters is the objection to
the document at the time it is formally offered as an exhibit.

In the case at bar, the photocopies of the airway bills were objected to by the
private respondents as secondary evidence only when they, were being
Identified for marking by the prosecution. They were nevertheless marked as
exhibits upon the promise that the original airway bills would be submitted
later. it is true that the originals were never produced. Yet, notwithstanding
this omission, the defense did not object when the exhibits as previously
marked were formally offered in evidence. And these were subsequently
admitted by the trial court. 7

proof of a character. ... Under an objection upon the ground

that the said certificate was not the best proof, it should have
been rejected. Once admitted, however, without objection,
even though not admissible under an objection, we are not
inclined now to reject it. If the defendant had opportunely
presented an objection to the admissibility of said certificate,
no doubt the prosecution would have presented the best
proof upon the questions to which said certificate relates. 10

In People v. Teodoro, 8 a document being Identified by a prosecution witness

was objected to as merely secondary, whereupon the trial judge ordered the
testimony stricken out. This Court, in holding the objection to be premature,
said:

(It) is universally accepted that when secondary or

incompetent evidence is presented and accepted without any
objection on the part of the other party, the latter is bound
thereby and the court is obliged to grant it the probatory
value it deserves. 11

It must be noted that the Fiscal was only Identifying the

official records of service of the defendant preparatory to
introducing them as evidence. ... The time for the
presentation of the records had not yet come; presentation
was to be made after their Identification. For what purpose
and to what end the Fiscal would introduce them as evidence
was not yet stated or disclosed. ... The objection of counsel
for the defendant was, therefore, premature, especially as
the Fiscal had not yet stated for what purpose he would
introduce the said records. ...
The time for objecting the evidence is when the same is
offered. (Emphasis supplied).
The objection of the defense to the photocopies of the airway bins while they
were being Identified and marked as exhibits did not constitute the objection
it should have made when the exhibits were formally offered in evidence by
the prosecution. No valid and timely objection was made at that time. And it
is no argument to say that the earlier objection should be considered a
continuing objection under Sec. 37 of Rule 132, for that provision obviously
refers to a single objection to a class of evidence (testimonial or
documentary) which when first offered is considered to encompass the rest of
the evidence. The presumption is, of course, that there was an offer and a
seasonable objection thereto. But, to repeat, no objection was really made in
the case before us because it was not made at the proper time.
It would have been so simple for the defense to reiterate its former objection,
this time seasonably, when the formal offer of exhibits was made. It is curious
that it did not, especially so since the objections to the formal offer of
exhibits was made in writing. In fact, the defense filed no objection at all not
only to the photocopies but to all the other exhibits of the prosecution.
The effect of such omission is obvious. The rule is that evidence not objected
to is deemed admitted and may be validly considered by the court in arriving
at its judgment. 9 This is true even if by its nature the evidence is
inadmissible and would have surely been rejected if it had been challenged at
the proper time.
The records certainly would have been the, beet proof of such
former conviction. The certificate was not the best proof.
There seems to be no justification for the presentation of

We hold therefore that it was erroneous for the lower courts to reject the
photocopies of the airway bills to prove the liability of the private
respondents to the petitioner. While we may agree that there was really no
criminal liability that could attach to them because they had no fiduciary
relationship with ITI, the rejected evidence sufficiently established their
indebtedness to the petitioner. Hence, we must reverse the ruling below that
"on account of the inadmissibility of the prosecution's Exhibits 'B' and 'OO',
coupled with the denial made by the accused, there appears to be no
concrete proof of such accountability."
Accoording to Rule 120, Section 2, of the Rules of Court:
In case of acquittal, unless there is a clear showing that the
act from which the civil liability might arise did not exist, the
judgment shall make a finding on the civil liability of the
accused in favor of the offended party.
With the admission of such exhibits pursuant to the ruling above made, we
find that there is concrete proof of the defendant's accountability. More than
this, we also disbelieve the evidence of the private respondents that the said
airway bills had been paid for. The evidence consists only of check stubs
corresponding to payments allegedly made by the accused to the ITI, and we
find this insufficient.
As it is Aviles who has alleged payment, it is for him to prove that allegation.
He did not produce any receipt of such payment. He said that the cancelled
payment checks had been lost and relied merely on the check stubs, which
are self-serving. The prosecution correctly stressed in its motion for
reconsideration that the accused could have easily secured a certification
from the bank that the checks allegedly issued to ITI had been honored. No
such certification was presented. In short, the private respondents failed to
establish their allegation that payment for the airway bills delivered to them
had been duly remitted to ITI.
In Padilla v. Court of Appeals,

12

we held:

There appear to be no sound reasons to require a separate

civil action to still be filed considering that the facts to be
proved in the civil case have already been established in the
criminal proceedings where the accused was acquitted. He

was, in fact, exonerated of the charge. The constitutional

presumption of innocence called for more vigilant efforts on
the part of prosecuting attorneys and defense counsel, a
keener awareness by all witnesses of the serious implications
of perjury, and a more studied consideration by the judge of
the entire records and of applicable statutes and precedents.
To require a separate civil action simply because the accused
was I acquitted would mean needless clogging of court
dockets and unnecessary duplication of litigation with all its
attendant loss of time, effort, and money on the part of all
concerned.
By the same token, we find that remand of this case to, the trial court for
further hearings would be a needless waste of time and effort to the
prejudice of the speedy administration of justice. Applying the above ruling,
we hereby declare therefore, on the basis of the evidence submitted at the
trial as reflected in the records before us, that the private respondents are
liable to the petitioner in the sum of P204,030.66, representing the cost of
the airway bills.
WHEREFORE, the petition is GRANTED. The challenged decision of the Court
of Appeals is SET ASIDE and a new one is rendered ORDERING the private
respondents to. pay to the petitioner the sum of P204,030.66, with 6%
interest from November 16, 1981, plus the costs of this suit.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

SECOND DIVISION

G.R. No. 87434 August 5, 1992

PHILIPPINE AMERICAN GENERAL INSURANCE CO., INC. and TAGUM
PLASTICS,
INC., petitioners,
vs.
SWEET LINES, INC., DAVAO VETERANS ARRASTRE AND PORT
SERVICES, INC. and HON. COURT OF APPEALS, respondents.
De Lara, De Lunas & Rosales for petitioners.
Carlo L. Aquino for Sweet Lines, Inc.

REGALADO, J.:
A maritime suit 1 was commenced on May 12, 1978 by herein Petitioner
Philippine American General Insurance Co., Inc. (Philamgen) and Tagum
Plastics, Inc. (TPI) against private respondents Sweet Lines, Inc. (SLI) and
Davao Veterans Arrastre and Port Services, Inc. (DVAPSI), along with S.C.I.

Line (The Shipping Corporation of India Limited) and F.E. Zuellig, Inc., as codefendants in the court a quo, seeking recovery of the cost of lost or
damaged shipment plus exemplary damages, attorney's fees and costs
allegedly due to defendants' negligence, with the following factual backdrop
yielded by the findings of the court below and adopted by respondent court:
It would appear that in or about March 1977, the vessel SS
"VISHVA YASH" belonging to or operated by the foreign
common carrier, took on board at Baton Rouge, LA, two (2)
consignments of cargoes for shipment to Manila and later for
transhipment to Davao City, consisting of 600 bags Low
Density Polyethylene 631 and another 6,400 bags Low
Density Polyethylene 647, both consigned to the order of Far
East Bank and Trust Company of Manila, with arrival notice to
Tagum Plastics, Inc., Madaum, Tagum, Davao City. Said
cargoes were covered, respectively, by Bills of Lading Nos. 6
and 7 issued by the foreign common carrier (Exhs. E and F).
The necessary packing or Weight List (Exhs. A and B), as well
as the Commercial Invoices (Exhs. C and D) accompanied the
shipment. The cargoes were likewise insured by the Tagum
Plastics Inc. with plaintiff Philippine American General
Insurance Co., Inc., (Exh. G).
In the course of time, the said vessel arrived at Manila and
discharged its cargoes in the Port of Manila for transhipment
to Davao City. For this purpose, the foreign carrier awaited
and made use of the services of the vessel called M/V "Sweet
Love" owned and operated by defendant interisland carrier.
Subject cargoes were loaded in Holds Nos. 2 and 3 of the
interisland carrier. These were commingled with similar
cargoes belonging to Evergreen Plantation and also
Standfilco.
On May 15, 1977, the shipment(s) were discharged from the
interisland carrier into the custody of the consignee. A later
survey conducted on July 8, 1977, upon the instance of the
plaintiff, shows the following:
Of the cargo covered by Bill of Lading No. 25 or (2)6,
supposed to contain 6,400 bags of Low Density Polyethylene
647 originally inside 160 pallets, there were delivered to the
consignee 5,413 bags in good order condition. The survey
shows shortages, damages and losses to be as follows:
Undelivered/Damaged bags as tallied during
discharge from vessel-173 bags; undelivered
and damaged as noted and observed whilst
stored at the pier-699 bags; and shortlanded110 bags (Exhs. P and P-1).
Of the 600 bags of Low Density Polyethylene 631, the survey
conducted on the same day shows an actual delivery to the
consignee of only 507 bags in good order condition. Likewise
noted were the following losses, damages and shortages, to

wit:

thereon from April 28, 1978 until fully paid;

Undelivered/damaged bags and tally sheets
during discharge from vessel-17 bags.
Undelivered and damaged as noted and
observed whilst stored at the pier-66 bags;
Shortlanded-10 bags.

Therefore, of said shipment totalling 7,000 bags, originally

contained in 175 pallets, only a total of 5,820 bags were
delivered to the consignee in good order condition, leaving a
balance of 1,080 bags. Such loss from this particular
shipment is what any or all defendants may be answerable to
(sic).
As already stated, some bags were either shortlanded or
were missing, and some of the 1,080 bags were torn, the
contents thereof partly spilled or were fully/partially emptied,
but, worse, the contents thereof contaminated with foreign
matters and therefore could no longer serve their intended
purpose. The position taken by the consignee was that even
those bags which still had some contents were considered as
total losses as the remaining contents were contaminated
with foreign matters and therefore did not (sic) longer serve
the intended purpose of the material. Each bag was valued,
taking into account the customs duties and other taxes paid
as well as charges and the conversion value then of a dollar
to the peso, at P110.28 per bag (see Exhs. L and L-1 M and
O). 2
Before trial, a compromise agreement was entered into between petitioners,
as plaintiffs, and defendants S.C.I. Line and F.E. Zuellig, upon the latter's
payment of P532.65 in settlement of the claim against them. Whereupon, the
trial court in its order of August 12, 1981 3 granted plaintiffs' motion to
dismiss grounded on said amicable settlement and the case as to S.C.I. Line
and F.E. Zuellig was consequently "dismissed with prejudice and without
pronouncement as to costs."
The trial court thereafter rendered judgment in favor of herein petitioners on
this dispositive portion:
WHEREFORE, judgment is hereby rendered in favor of the
plaintiff Philippine General American Insurance Company Inc.
and against the remaining defendants, Sweet Lines Inc. and
Davao Veterans Arrastre Inc. as follows:
Defendant Sweet Lines, Inc. is ordered to pay said plaintiff
the sum of P34,902.00, with legal interest thereon from date
of extrajudicial demand on April 28, 1978 (Exh. M) until fully
paid;
Defendant Sweet Lines Inc. and Davao Veterans Arrastre and
(Port) Services Inc. are directed to pay jointly and severally,
the plaintiff the sum of P49,747.55, with legal interest

Each of said defendants are ordered to pay the plaintiffs the

additional sum of P5,000 is reimbursable attorney's fees and
other litigation expenses;
Each of said defendants shall pay one-fourth (1/4) costs.

Due to the reversal on appeal by respondent court of the trial court's decision
on the ground of prescription, 5 in effect dismissing the complaint of herein
petitioners, and the denial of their motion for reconsideration, 6 petitioners
filed the instant petition for review on certiorari, faulting respondent
appellate court with the following errors: (1) in upholding, without proof, the
existence of the so-called prescriptive period; (2) granting arguendo that the
said prescriptive period does exist, in not finding the same to be null and
void; and (3) assuming arguendo that the said prescriptive period is valid and
legal, in failing to conclude that petitioners substantially complied
therewith. 7
Parenthetically, we observe that herein petitioners are jointly pursuing this
case, considering their common interest in the shipment subject of the
present controversy, to obviate any question as to who the real party in
interest is and to protect their respective rights as insurer and insured. In any
case, there is no impediment to the legal standing of Petitioner Philamgen,
even if it alone were to sue herein private respondents in its own capacity as
insurer, it having been subrogated to all rights of recovery for loss of or
damage to the shipment insured under its Marine Risk Note No. 438734
dated March 31, 1977 8 in view of the full settlement of the claim thereunder
as evidenced by the subrogation receipt 9 issued in its favor by Far East Bank
and Trust Co., Davao Branch, for the account of petitioner TPI.
Upon payment of the loss covered by the policy, the insurer's entitlement to
subrogation pro tanto, being of the highest equity, equips it with a cause of
action against a third party in case of contractual breach. 10 Further, the
insurer's subrogatory right to sue for recovery under the bill of lading in case
of loss of or damage to the cargo is jurisprudentially upheld. 11 However, if an
insurer, in the exercise of its subrogatory right, may proceed against the
erring carrier and for all intents and purposes stands in the place and in
substitution of the consignee, a fortiori such insurer is presumed to know and
is just as bound by the contractual terms under the bill of lading as the
insured.
On the first issue, petitioners contend that it was error for the Court of
Appeals to reverse the appealed decision on the supposed ground of
prescription when SLI failed to adduce any evidence in support thereof and
that the bills of lading said to contain the shortened periods for filing a claim
and for instituting a court action against the carrier were never offered in
evidence. Considering that the existence and tenor of this stipulation on the
aforesaid periods have allegedly not been established, petitioners maintain
that it is inconceivable how they can possibly comply therewith. 12 In
refutation, SLI avers that it is standard practice in its operations to issue bills
of lading for shipments entrusted to it for carriage and that it in fact issued
bills of lading numbered MD-25 and MD-26 therefor with proof of their
existence manifest in the records of the case. 13 For its part, DVAPSI insists on
the propriety of the dismissal of the complaint as to it due to petitioners'

failure to prove its direct responsibility for the loss of and/or damage to the
cargo.14
On this point, in denying petitioner's motion for reconsideration, the Court of
Appeals resolved that although the bills of lading were not offered in
evidence, the litigation obviously revolves on such bills of lading which are
practically the documents or contracts sued upon, hence, they are inevitably
involved and their provisions cannot be disregarded in the determination of
the relative rights of the parties thereto. 15
Respondent court correctly passed upon the matter of prescription, since that
defense was so considered and controverted by the parties. This issue may
accordingly be taken cognizance of by the court even if not inceptively raised
as a defense so long as its existence is plainly apparent on the face of
relevant pleadings. 16 In the case at bar, prescription as an affirmative
defense was seasonably raised by SLI in its answer, 17 except that the bills of
lading embodying the same were not formally offered in evidence, thus
reducing the bone of contention to whether or not prescription can be
maintained as such defense and, as in this case, consequently upheld on the
strength of mere references thereto.
As petitioners are suing upon SLI's contractual obligation under the contract
of carriage as contained in the bills of lading, such bills of lading can be
categorized as actionable documents which under the Rules must be properly
pleaded either as causes of action or defenses, 18 and the genuineness and
due execution of which are deemed admitted unless specifically denied under
oath by the adverse party. 19 The rules on actionable documents cover and
apply to both a cause of action or defense based on said documents. 20
In the present case and under the aforestated assumption that the time limit
involved is a prescriptive period, respondent carrier duly raised prescription
as an affirmative defense in its answer setting forth paragraph 5 of the
pertinent bills of lading which comprised the stipulation thereon by parties, to
wit:
5. Claims for shortage, damage, must be made at the time of
delivery to consignee or agent, if container shows exterior
signs of damage or shortage. Claims for non-delivery,
misdelivery, loss or damage must be filed within 30 days
from accrual. Suits arising from shortage, damage or loss,
non-delivery or misdelivery shall be instituted within 60 days
from date of accrual of right of action. Failure to file claims or
institute judicial proceedings as herein provided constitutes
waiver of claim or right of action. In no case shall carrier be
liable for any delay, non-delivery, misdelivery, loss of damage
to cargo while cargo is not in actual custody of carrier. 21
In their reply thereto, herein petitioners, by their own assertions that

2. In connection with Pars. 14 and 15 of defendant Sweet

Lines, Inc.'s Answer, plaintiffs state that such agreements are
what the Supreme Court considers as contracts of adhesion
(see Sweet Lines, Inc. vs. Hon. Bernardo Teves, et al., G.R. No.
L-37750, May 19, 1978) and, consequently, the provisions
therein which are contrary to law and public policy cannot be
availed of by answering defendant as valid defenses. 22
thereby failed to controvert the existence of the bills of lading and the
aforequoted provisions therein, hence they impliedly admitted the same
when they merely assailed the validity of subject stipulations.
Petitioners' failure to specifically deny the existence, much less the
genuineness and due execution, of the instruments in question amounts to
an admission. Judicial admissions, verbal or written, made by the parties in
the pleadings or in the course of the trial or other proceedings in the same
case are conclusive, no evidence being required to prove the same, and
cannot be contradicted unless shown to have been made through palpable
mistake or that no such admission was made. 23 Moreover, when the due
execution and genuineness of an instrument are deemed admitted because
of the adverse party's failure to make a specific verified denial thereof, the
instrument need not be presented formally in evidence for it may be
considered an admitted fact. 24
Even granting that petitioners' averment in their reply amounts to a denial, it
has the procedural earmarks of what in the law on pleadings is called a
negative pregnant, that is, a denial pregnant with the admission of the
substantial facts in the pleading responded to which are not squarely denied.
It is in effect an admission of the averment it is directed to. 25 Thus, while
petitioners objected to the validity of such agreement for being contrary to
public policy, the existence of the bills of lading and said stipulations were
nevertheless impliedly admitted by them.
We find merit in respondent court's comments that petitioners failed to touch
on the matter of the non-presentation of the bills of lading in their brief and
earlier on in the appellate proceedings in this case, hence it is too late in the
day to now allow the litigation to be overturned on that score, for to do so
would mean an over-indulgence in technicalities. Hence, for the reasons
already advanced, the non-inclusion of the controverted bills of lading in the
formal offer of evidence cannot, under the facts of this particular case, be
considered a fatal procedural lapse as would bar respondent carrier from
raising the defense of prescription. Petitioners' feigned ignorance of the
provisions of the bills of lading, particularly on the time limitations for filing a
claim and for commencing a suit in court, as their excuse for non-compliance
therewith does not deserve serious attention.
It is to be noted that the carriage of the cargo involved was effected pursuant
to an "Application for Delivery of Cargoes without Original Bill of Lading"
issued on May 20, 1977 in Davao City 26 with the notation therein that said
application corresponds to and is subject to the terms of bills of lading MD-25
and MD-26. It would be a safe assessment to interpret this to mean that,
sight unseen, petitioners acknowledged the existence of said bills of lading.
By having the cargo shipped on respondent carrier's vessel and later making
a claim for loss on the basis of the bills of lading, petitioners for all intents
and purposes accepted said bills. Having done so they are bound by all

stipulations contained therein. 27 Verily, as petitioners are suing for recovery

on the contract, and in fact even went as far as assailing its validity by
categorizing it as a contract of adhesion, then they necessarily admit that
there is such a contract, their knowledge of the existence of which with its
attendant stipulations they cannot now be allowed to deny.
On the issue of the validity of the controverted paragraph 5 of the bills of
lading above quoted which unequivocally prescribes a time frame of thirty
(30) days for filing a claim with the carrier in case of loss of or damage to the
cargo and sixty (60) days from accrual of the right of action for instituting an
action in court, which periods must concur, petitioners posit that the alleged
shorter prescriptive period which is in the nature of a limitation on
petitioners' right of recovery is unreasonable and that SLI has the burden of
proving otherwise, citing the earlier case of Southern Lines, Inc. vs. Court of
Appeals, et al. 28 They postulate this on the theory that the bills of lading
containing the same constitute contracts of adhesion and are, therefore, void
for being contrary to public policy, supposedly pursuant to the dictum
in Sweet Lines, Inc. vs. Teves, et al. 29
Furthermore, they contend, since the liability of private respondents has been
clearly established, to bar petitioners' right of recovery on a mere technicality
will pave the way for unjust enrichment. 30 Contrarily, SLI asserts and defends
the reasonableness of the time limitation within which claims should be filed
with the carrier; the necessity for the same, as this condition for the carrier's
liability is uniformly adopted by nearly all shipping companies if they are to
survive the concomitant rigors and risks of the shipping industry; and the
countervailing balance afforded by such stipulation to the legal presumption
of negligence under which the carrier labors in the event of loss of or damage
to the cargo. 31
It has long been held that Article 366 of the Code of Commerce applies not
only to overland and river transportation but also to maritime
transportation. 32 Moreover, we agree that in this jurisdiction, as viewed from
another angle, it is more accurate to state that the filing of a claim with the
carrier within the time limitation therefor under Article 366 actually
constitutes a condition precedent to the accrual of a right of action against a
carrier for damages caused to the merchandise. The shipper or the consignee
must allege and prove the fulfillment of the condition and if he omits such
allegations and proof, no right of action against the carrier can accrue in his
favor. As the requirements in Article 366, restated with a slight modification
in the assailed paragraph 5 of the bills of lading, are reasonable conditions
precedent, they are not limitations of action. 33 Being conditions precedent,
their performance must precede a suit for enforcement 34 and the vesting of
the right to file spit does not take place until the happening of these
conditions. 35
Now, before an action can properly be commenced all the essential elements
of the cause of action must be in existence, that is, the cause of action must
be complete. All valid conditions precedent to the institution of the particular
action, whether prescribed by statute, fixed by agreement of the parties or
implied by law must be performed or complied with before commencing the
action, unless the conduct of the adverse party has been such as to prevent
or waive performance or excuse non-performance of the condition. 36
It bears restating that a right of action is the right to presently enforce a

cause of action, while a cause of action consists of the operative facts which
give rise to such right of action. The right of action does not arise until the
performance of all conditions precedent to the action and may be taken away
by the running of the statute of limitations, through estoppel, or by other
circumstances which do not affect the cause of action. 37 Performance or
fulfillment of all conditions precedent upon which a right of action depends
must be sufficiently alleged, 38 considering that the burden of proof to show
that a party has a right of action is upon the person initiating the suit. 39
More particularly, where the contract of shipment contains a reasonable
requirement of giving notice of loss of or injury to the goods, the giving of
such notice is a condition precedent to the action for loss or injury or the right
to enforce the carrier's liability. Such requirement is not an empty formalism.
The fundamental reason or purpose of such a stipulation is not to relieve the
carrier from just liability, but reasonably to inform it that the shipment has
been damaged and that it is charged with liability therefor, and to give it an
opportunity to examine the nature and extent of the injury. This protects the
carrier by affording it an opportunity to make an investigation of a claim
while the matter is fresh and easily investigated so as to safeguard itself from
false and fraudulent claims. 40
Stipulations in bills of lading or other contracts of shipment which require
notice of claim for loss of or damage to goods shipped in order to impose
liability on the carrier operate to prevent the enforcement of the contract
when not complied with, that is, notice is a condition precedent and the
carrier is not liable if notice is not given in accordance with the
stipulation, 41 as the failure to comply with such a stipulation in a contract of
carriage with respect to notice of loss or claim for damage bars recovery for
the loss or damage suffered. 42
On the other hand, the validity of a contractual limitation of time for filing the
suit itself against a carrier shorter than the statutory period therefor has
generally been upheld as such stipulation merely affects the shipper's
remedy and does not affect the liability of the carrier. In the absence of any
statutory limitation and subject only to the requirement on the
reasonableness of the stipulated limitation period, the parties to a contract of
carriage may fix by agreement a shorter time for the bringing of suit on a
claim for the loss of or damage to the shipment than that provided by the
statute of limitations. Such limitation is not contrary to public policy for it
does not in any way defeat the complete vestiture of the right to recover, but
merely requires the assertion of that right by action at an earlier period than
would be necessary to defeat it through the operation of the ordinary statute
of limitations. 43
In the case at bar, there is neither any showing of compliance by petitioners
with the requirement for the filing of a notice of claim within the prescribed
period nor any allegation to that effect. It may then be said that while
petitioners may possibly have a cause of action, for failure to comply with the
above condition precedent they lost whatever right of action they may have
in their favor or, token in another sense, that remedial right or right to relief
had prescribed. 44
The shipment in question was discharged into the custody of the consignee
on May 15, 1977, and it was from this date that petitioners' cause of action
accrued, with thirty (30) days therefrom within which to file a claim with the

carrier for any loss or damage which may have been suffered by the cargo
and thereby perfect their right of action. The findings of respondent court as
supported by petitioners' formal offer of evidence in the court below show
that the claim was filed with SLI only on April 28, 1978, way beyond the
period provided in the bills of lading 45 and violative of the contractual
provision, the inevitable consequence of which is the loss of petitioners'
remedy or right to sue. Even the filing of the complaint on May 12, 1978 is of
no remedial or practical consequence, since the time limits for the filing
thereof, whether viewed as a condition precedent or as a prescriptive period,
would in this case be productive of the same result, that is, that petitioners
had no right of action to begin with or, at any rate, their claim was timebarred.
What the court finds rather odd is the fact that petitioner TPI filed a
provisional claim with DVAPSI as early as June 14, 1977 46 and, as found by
the trial court, a survey fixing the extent of loss of and/or damage to the
cargo was conducted on July 8, 1977 at the instance of petitioners. 47 If
petitioners had the opportunity and awareness to file such provisional claim
and to cause a survey to be conducted soon after the discharge of the cargo,
then they could very easily have filed the necessary formal, or even a
provisional, claim with SLI itself 48 within the stipulated period therefor,
instead of doing so only on April 28, 1978 despite the vessel's arrival at the
port of destination on May 15, 1977. Their failure to timely act brings us to no
inference other than the fact that petitioners slept on their rights and they
must now face the consequences of such inaction.
The ratiocination of the Court of Appeals on this aspect is worth reproducing:
xxx xxx xxx
It must be noted, at this juncture, that the aforestated time
limitation in the presentation of claim for loss or damage, is
but a restatement of the rule prescribed under Art. 366 of the
Code of Commerce which reads as follows:
Art. 366. Within the twenty-four hours
following the receipt of the merchandise, the
claim against the carrier for damage or
average which may be found therein upon
opening the packages, may be made,
provided that the indications of the damage
or average which gives rise to the claim
cannot be ascertained from the outside part
of the packages, in which case the claims
shall be admitted only at the time of the
receipt.
After the periods mentioned have elapsed, or
the transportation charges have been paid,
no claim shall be admitted against the carrier
with regard to the condition in which the
goods transported were delivered.
Gleanable therefrom is the fact that subject stipulation even
lengthened the period for presentation of claims thereunder.

Such modification has been sanctioned by the Supreme

Court. In the case of Ong Yet (M)ua Hardware Co., Inc. vs.
Mitsui Steamship Co., Ltd., et al., 59 O.G. No. 17, p. 2764, it
ruled that Art. 366 of the Code of Commerce can be modified
by a bill of lading prescribing the period of 90 days after
arrival of the ship, for filing of written claim with the carrier or
agent, instead of the 24-hour time limit after delivery
provided in the aforecited legal provision.
Tested, too, under paragraph 5 of said Bill of Lading, it is
crystal clear that the commencement of the instant suit on
May 12, 1978 was indeed fatally late. In view of the express
provision
that
"suits
arising
from
. . . damage or loss shall be instituted within 60 days from
date of accrual of right of action," the present action
necessarily fails on ground of prescription.
In the absence of constitutional or statutory
prohibition, it is usually held or recognized
that it is competent for the parties to a
contract of shipment to agree on a limitation
of time shorter than the statutory period,
within which action for breach of the contract
shall be brought, and such limitation will be
enforced if reasonable . . . (13 C.J.S. 496-497)
A perusal of the pertinent provisions of law on the matter
would disclose that there is no constitutional or statutory
prohibition infirming paragraph 5 of subject Bill of Lading. The
stipulated period of 60 days is reasonable enough for
appellees to ascertain the facts and thereafter to sue, if need
be, and the 60-day period agreed upon by the parties which
shortened the statutory period within which to bring action
for breach of contract is valid and binding. . . . (Emphasis in
the original text.) 49
As explained above, the shortened period for filing suit is not unreasonable
and has in fact been generally recognized to be a valid business practice in
the shipping industry. Petitioners' advertence to the Court's holding in
the Southern Lines case, supra, is futile as what was involved was a claim for
refund of excess payment. We ruled therein that non-compliance with the
requirement of filing a notice of claim under Article 366 of the Code of
Commerce does not affect the consignee's right of action against the carrier
because said requirement applies only to cases for recovery of damages on
account of loss of or damage to cargo, not to an action for refund of
overpayment, and on the further consideration that neither the Code of
Commerce nor the bills of lading therein provided any time limitation for
suing for refund of money paid in excess, except only that it be filed within a
reasonable time.
The ruling in Sweet Lines categorizing the stipulated limitation on venue of
action provided in the subject bill of lading as a contract of adhesion and,
under the circumstances therein, void for being contrary to public policy is
evidently likewise unavailing in view of the discrete environmental facts
involved and the fact that the restriction therein was unreasonable. In any

case, Ong Yiu vs. Court of Appeals, et al., 50 instructs us that "contracts of
adhesion wherein one party imposes a ready-made form of contract on the
other . . . are contracts not entirely prohibited. The one who adheres to the
contract is in reality free to reject it entirely; if he adheres he gives his
consent." In the present case, not even an allegation of ignorance of a party
excuses non-compliance with the contractual stipulations since the
responsibility for ensuring full comprehension of the provisions of a contract
of carriage devolves not on the carrier but on the owner, shipper, or
consignee as the case may be.
While it is true that substantial compliance with provisions on filing of claim
for loss of or damage to cargo may sometimes suffice, the invocation of such
an assumption must be viewed vis-a-vis the object or purpose which such a
provision seeks to attain and that is to afford the carrier a reasonable
opportunity to determine the merits and validity of the claim and to protect
itself against unfounded impositions. 51 Petitioners' would nevertheless adopt
an adamant posture hinged on the issuance by SLI of a "Report on Losses and
Damages," dated May 15, 1977, 52 from which petitioners theorize that this
charges private respondents with actual knowledge of the loss and damage
involved in the present case as would obviate the need for or render
superfluous the filing of a claim within the stipulated period.
Withal, it has merely to be pointed out that the aforementioned report bears
this notation at the lower part thereof: "Damaged by Mla. labor upon
unloading; B/L noted at port of origin," as an explanation for the cause of loss
of and/or damage to the cargo, together with an iterative note stating that
"(t)his Copy should be submitted together with your claim invoice or receipt
within 30 days from date of issue otherwise your claim will not be honored."
Moreover, knowledge on the part of the carrier of the loss of or damage to
the goods deducible from the issuance of said report is not equivalent to nor
does it approximate the legal purpose served by the filing of the requisite
claim, that is, to promptly apprise the carrier about a consignee's intention to
file a claim and thus cause the prompt investigation of the veracity and merit
thereof for its protection. It would be an unfair imposition to require the
carrier, upon discovery in the process of preparing the report on losses or
damages of any and all such loss or damage, to presume the existence of a
claim against it when at that time the carrier is expectedly concerned merely
with accounting for each and every shipment and assessing its condition.
Unless and until a notice of claim is therewith timely filed, the carrier cannot
be expected to presume that for every loss or damage tallied, a
corresponding claim therefor has been filed or is already in existence as
would alert it to the urgency for an immediate investigation of the soundness
of the claim. The report on losses and damages is not the claim referred to
and required by the bills of lading for it does not fix responsibility for the loss
or damage, but merely states the condition of the goods shipped. The claim
contemplated herein, in whatever form, must be something more than a
notice that the goods have been lost or damaged; it must contain a claim for
compensation or indicate an intent to claim. 53
Thus, to put the legal effect of respondent carrier's report on losses or
damages, the preparation of which is standard procedure upon unloading of
cargo at the port of destination, on the same level as that of a notice of claim
by imploring substantial compliance is definitely farfetched. Besides, the
cited notation on the carrier's report itself makes it clear that the filing of a

notice of claim in any case is imperative if carrier is to be held liable at all for
the loss of or damage to cargo.
Turning now to respondent DVAPSI and considering that whatever right of
action petitioners may have against respondent carrier was lost due to their
failure to seasonably file the requisite claim, it would be awkward, to say the
least, that by some convenient process of elimination DVAPSI should
proverbially be left holding the bag, and it would be pure speculation to
assume that DVAPSI is probably responsible for the loss of or damage to
cargo. Unlike a common carrier, an arrastre operator does not labor under a
presumption of negligence in case of loss, destruction or deterioration of
goods discharged into its custody. In other words, to hold an arrastre operator
liable for loss of and/or damage to goods entrusted to it there must be
preponderant evidence that it did not exercise due diligence in the handling
and care of the goods.
Petitioners failed to pinpoint liability on any of the original defendants and in
this seemingly wild goose-chase, they cannot quite put their finger down on
when, where, how and under whose responsibility the loss or damage
probably occurred, or as stated in paragraph 8 of their basic complaint filed
in the court below, whether "(u)pon discharge of the cargoes from the
original carrying vessel, the SS VISHVA YASH," and/or upon discharge of the
cargoes from the interisland vessel the MV "SWEET LOVE," in Davao City and
later while in the custody of defendant arrastre operator. 54
The testimony of petitioners' own witness, Roberto Cabato, Jr., Marine and
Aviation Claims Manager of petitioner Philamgen, was definitely inconclusive
and the responsibility for the loss or damage could still not be ascertained
therefrom:
Q In other words, Mr. Cabato, you only
computed the loss on the basis of the figures
submitted to you and based on the
documents like the survey certificate and the
certificate of the arrastre?
A Yes, sir.
Q Therefore, Mr. Cabato, you have no idea
how or where these losses were incurred?
A No, sir.
xxx xxx xxx
Q Mr. Witness, you said that you processed
and investigated the claim involving the
shipment in question. Is it not a fact that in
your processing and investigation you
considered
how
the
shipment
was
transported? Where the losses could have
occurred and what is the extent of the
respective responsibilities of the bailees
and/or carriers involved?

xxx xxx xxx

G.R. No. 105813 September 12, 1994

A With respect to the shipment being
transported, we have of course to get into it
in order to check whether the shipment
coming in to this port is in accordance with
the policy condition, like in this particular
case, the shipment was transported to Manila
and transhipped through an interisland vessel
in accordance with the policy. With respect to
the losses, we have a general view where
losses could have occurred. Of course we will
have to consider the different bailees wherein
the shipment must have passed through, like
the ocean vessel, the interisland vessel and
the arrastre, but definitely at that point and
time we cannot determine the extent of each
liability. We are only interested at that point
and time in the liability as regards the
underwriter in accordance with the policy that
we issued.

xxx xxx xxx

Q Mr. Witness, from the documents, namely,
the survey of Manila Adjusters and Surveyors
Company, the survey of Davao Arrastre
contractor and the bills of lading issued by
the defendant Sweet Lines, will you be able to
tell the respective liabilities of the bailees
and/or carriers concerned?
A No, sir. (Emphasis ours.)

ACCORDINGLY, on the foregoing premises, the instant petition is DENIED and

the dismissal of the complaint in the court a quo as decreed by respondent
Court of Appeals in its challenged judgment is hereby AFFIRMED.
SO ORDERED.

FIRST DIVISION

of

the

Arnold V. Guerrero & Associates for petitioner.

BELLOSILLO, J.:
Is the testimony of a witness inadmissible in evidence if not formally offered
at the time the witness is called to testify, as required in Sec. 35, in relation
to Sec. 34, Rule 132, of the Revised Rules on Evidence? 1
On 8 June 1990, two (2) Informations for estafa were filed against petitioner
Concepcion M. Catuira with the Regional Trial Court of Calamba, Laguna, for
having issued two (2) checks in payment of her obligation to private
complainant Maxima Ocampo when petitioner had no sufficient funds to
cover the same, which checks upon presentment for payment were
dishonored by the drawee bank. 2
After the prosecution had presented its evidence, petitioner Concepcion M.
Catuira filed a Motion to Dismiss (by way of Demurrer to Evidence) under Sec.
15, Rule 119, of the 1985 Revised Rules on Criminal Procedure. 3Petitioner
contended that the testimony of private respondent Ocampo was
inadmissible in evidence since it was not properly introduced when she was
called to testify as mandated in Sec. 35, Rule 132, of the Revised Rules on
Evidence. Petitioner also argued that even if the testimony of private
respondent was considered, the evidence of the prosecution still failed to
prove that the checks were issued in payment of an obligation.

55

Neither did nor could the trial court, much less the Court of Appeals, precisely
establish the stage in the course of the shipment when the goods were lost,
destroyed or damaged. What can only be inferred from the factual findings of
the trial court is that by the time the cargo was discharged to DVAPSI, loss or
damage had already occurred and that the same could not have possibly
occurred while the same was in the custody of DVAPSI, as demonstrated by
the observations of the trial court quoted at the start of this opinion.

Republic
SUPREME
Manila

CONCEPCION
M.
CATUIRA, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

Philippines
COURT

On 26 July 1991, the trial court denied the motion to dismiss for lack of merit.
On 18 October 1991, it likewise denied the motion to reconsider its denial of
the motion to dismiss.
On 4 November 1991 petitioner elevated her case to the Court of Appeals
through a petition for certiorari, prohibition and mandamus. In a similar
move, the appellate court rejected her petition and sustained the trial court
in its denial of the motion to dismiss. Hence, this recourse seeking to annul
the decision of the Court of Appeals rendered on 27 February 1992 as well as
its resolution of 1 June 1992. 4
Petitioner claims that the Court of Appeals erred when it accepted the
testimony of private respondent despite the undisputed fact that it was not
offered at the time she was called to testify; her testimony should have been
stricken off the record pursuant to Sec. 34, Rule 132, which prohibits the
court from considering evidence which has not been formally offered; and, it
was error for respondent appellate court to declare that petitioner's objection
was not done at the proper time since under Sec. 36, Rule 132, 5 objection to
evidence offered orally must be made immediately after the offer is made.
Evidently, petitioner could not have waived her right to object to the
admissibility of the testimony of private respondent since the rule requires
that it must be done only at the time such testimony is presented and the

records plainly show that the opportunity for petitioner to object only came
when the prosecution attempted, albeit belatedly, to offer the testimony after
it has rested its case. 6
The petition is devoid of merit. The reason for requiring that evidence be
formally introduced is to enable the court to rule intelligently upon the
objection to the questions which have been asked. 7 As a general rule, the
proponent must show its relevancy, materiality and competency. Where the
proponent offers evidence deemed by counsel of the adverse party to be
inadmissible for any reason, the latter has the right to object. But such right
is a mere privilege which can be waived. Necessarily, the objection must be
made at the earliest opportunity, lest silence when there is opportunity to
speak may operate as a waiver of objections. 8
Thus, while it is true that the prosecution failed to offer the questioned
testimony when private respondent was called to the witness stand,
petitioner waived this procedural error by failing to object at the appropriate
time, i.e., when the ground for objection became reasonably apparent the
moment private respondent was called to testify without any prior offer
having been made by the proponent. Most apt is the observation of the
appellate court:
While it is true that the prosecution failed to offer in evidence
the testimony of the complaining witness upon calling her to
testify and that it was only after her testimony and after the
petitioner moved that it be stricken that the offer was made,
the respondent Court did not gravely err in not dismissing the
case against the petitioner on the ground invoked. For, she
should have objected to the testimony of the complaining
witness when it was not first offered upon calling her and
should not have waited in ambush after she had already
finished testifying. By so doing she did not save the time of
the Court in hearing the testimony of the witness that after
all according to her was inadmissible. And for her failure to
make known her objection at the proper time, the procedural
error
or
defect
was
waived. 9
Indeed, the rationale behind Sec. 34, Rule 132, is manifest in the minutes of
the Revision of Rules Committee. 10Thus
The new rule would require the testimony of a witness to
offer it at the time the witness is called to testify. This is the
best time to offer the testimony so that the court's time will
not be wasted. Since it can right away rule on whether the
testimony is not necessary because it is irrelevant or
immaterial.
If petitioner was genuinely concerned with the ends of justice being served,
her actuations should have been otherwise. Instead, she attempted to
capitalize on a mere technicality to have the estafa case against her
dismissed. 11 But even assuming that petitioner's objection was timely, it was
at best pointless and superfluous. For there is no debating the fact that the
testimony of complaining witness is relevant and material in the criminal
prosecution of petitioner for estafa. It is inconceivable that a situation could

exist wherein an offended party's testimony is immaterial in a criminal

proceeding. Consequently, even if the offer was belatedly made by the
prosecution, there is no reason for the testimony to be expunged from the
record. On the contrary, the unoffered oral evidence must be admitted if only
to satisfy the court's sense of justice and fairness and to stress that
substantial justice may not be denied merely on the ground of technicality. 12
WHEREFORE, the decision of the Court of Appeals sustaining the order of the
Regional Trial Court of Calamba, Laguna, Br. 35, denying petitioner's motion
to dismiss (by way of demurrer to evidence) is AFFIRMED. Costs against
petitioner.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

FIRST DIVISION

G.R. No. 116149 November 23, 1995

ELVIRA MATO VDA. DE OATE, substituted by her heirs MARIA MATOALAMEDA, AIDA MATO, ZOE MATO, PACITA MATO and JUAN MATO
II, petitioners,
vs.
THE COURT OF APPEALS and EULALIA M. TAGUBA, respondents.

KAPUNAN, J.:
Petitioners challenge the decision of the trial court, as affirmed by respondent
court, for lack of basis. They argue that the lower court and the Court of
Appeals erred in considering evidence not formally offered by private
respondent in accordance with the Rules of Court.
The controversy involves Lot No. 1571, a riceland located at Toran, Aparri,
Cagayan covered by Transfer Certificate of Title No. T-5168. On January 10,
1980, an action for specific performance with damages was filed in the then
Court of First Instance of Cagayan, Branch II by Eulalia Marcita Taguba in her
capacity as administratrix of the estate of the deceased Leonor Taguba
against Elvira Mato Vda. de Oate.
As the trial court found, the deceased Leonor Taguba bought the subject
parcel of land from Elvira Mato Vda. de Oate sometime in 1976 for a
consideration of P5,000.00 payable in four (4) installments. Accordingly, she
paid P2,250.00 on January 20, 1976, 1 P750.00 on February 23,
1976, 2 P1,000.00 on March 20, 1976 3 and P1,000.00 on July 29, 1976. 4 After
full payment was made on July 29, 1976, the parties however failed to reduce
their contract in writing. On December 30, 1976, Leonor Taguba died. The
instant complaint was filed when demand was made upon Elvira Mato Vda.
de Oate to execute a public document of sale in favor of the deceased and

her heirs and she refused.

court the following errors, to wit:

The trial court rejected the petitioners' defense that Elvira Mato Vda. de
Oate contracted a verbal loan from Leonor Taguba in the amount of
P12,000.00 payable within a period of 4 years with 12% interest. Also
disbelieved was the allegation that two (2) parcels of land covered by TCT No.
5167 and TCT No. 5168 (the land in dispute) were mortgaged by Elvira Mato
Vda. de Oate to Leonor Taguba as security for the payment of the loan and
that only P5,000.00 of the P12,000.00 loan was given by Taguba.
On July 12, 1990, the trial court rendered judgment, the dispositive portion of
which reads:
WHEREFORE judgment is hereby rendered as follows:
1. Declaring the agreement between the late Leonor Taguba
and deceased defendant Elvira Mato Vda. de Oate entered
into on 20 January 1976, as a contract of "to sell";
2. Ordering the defendants to execute the proper document
to give effect to the contract within thirty (30) days,
otherwise, this Court shall be forced to order the cancellation
of the certificate of title covering Lot No. 1571 of the Aparri
Cadastre, and the Register of Deeds of Cagayan to issue
another certificate of title in the name of the Estate of Leonor
Taguba;
3. Ordering the plaintiff to prosecute their money claims
against deceased defendant's estate in accordance with
Section 21, Rule 3 of the Rules of Court.
Costs de oficio.
SO ORDERED.

Petitioners appealed to respondent Court of Appeals faulting the trial court's

factual findings. They contended that the trial court erred when it took
cognizance of the plaintiff's evidence, particularly Exhibits "F," "F-1," "F-2"
and "F-3", which had been marked but never formally submitted in evidence
as required by the Rules of Court. Consequently, it was claimed that the trial
court erred in relying on the said evidence in deciding for private
respondents.
On December 13, 1993, respondent court affirmed the decision of the trial
court. 6 In sustaining the lower court, the respondent court held that Exhibits
"F, "F-1," "F-2" and "F3" though not formally offered, may still be admitted in
evidence for having complied with the two (2) requisites for admission
enunciated in our jurisprudence, 7 that is, (1) evidence must be duly identified
by testimony duly recorded and (2) it must be incorporated in the records of
the case.
A motion for reconsideration of said decision was denied for lack of merit on
June 13, 1994. 8
Hence, the present petition for review. Petitioners ascribe to the respondent

THE HONORABLE COURT OF APPEALS ERRED IN NOT RULING

THAT DOCUMENTS WHICH ARE MARKED AS EXHIBITS BUT
NOT FORMALLY OFFERED ARE NOT TO BE CONSIDERED BY
THE COURT;
THE HONORABLE COURT OF APPEALS ERRED IN NOT RULING
THAT SINCE THERE WAS NO FIXED PURCHASE PRICE OF THE
LAND
AGREED
UPON
BY
THE
PARTIES,
SPECIFIC
PERFORMANCE COULD NOT BE AVAILED BY THE BUYER TO
FORCE THE OWNER OF THE LAND TO EXECUTE A DEED OF
SALE. 9
Section 35 (now Section 34) of Rule 132 of the Rules of Court provides:
Sec. 35. Offer of evidence. The court shall consider no
evidence which has not been formally offered. The purpose
for which the evidence is offered must be specified.
From the foregoing provision, it is clear that for evidence to be considered,
the same must be formally offered. Corollarily, the mere fact that a particular
document is identified and marked as an exhibit does not mean that it has
already been offered as part of the evidence of a party. In Interpacific Transit,
Inc. v. Aviles, 10 we had the occasion to make a distinction between
identification of documentary evidence and its formal offer as an exhibit. We
said that the first is done in the course of the trial and is accompanied by the
marking of the evidence as an exhibit while the second is done only when the
party rests its case and not before. A party, therefore, may opt to formally
offer his evidence if he believes that it will advance his cause or not to do so
at all. In the event he chooses to do the latter, the trial court is not
authorized by the Rules to consider the same.
However, in People v. Napat-a 11 citing People v. Mate, 12 we relaxed the
foregoing rule and allowed evidence not formally offered to be admitted and
considered by the trial court provided the following requirements are
present, viz.: first, the same must have been duly identified by testimony
duly recorded and, second, the same must have been incorporated in the
records of the case.
In the case at bench, we find, as respondent court did, that these requisites
have been satisfied.
The evidence in question refers to Exhibits "F," receipt for P2,250.00 dated
January 20, 1976; "F-1," receipt for P750.00 dated February 23, 1976, "F-2,"
receipt for P1,000.00 dated March 20, 1976; and "F-3," receipt for another
P1,000.00 dated July 29, 1976, all showing the varying amounts paid by
Leonor Taguba to Elvira Mato Vda. de Oate. These exhibits were marked at
the pre-trial for the purpose of identifying them. In fact, the payment of
P5,000.00 was admitted by herein petitioners in the same pre-trial. On March
5, 1984, Eulalia Marcita Taguba identified the said exhibits in her testimony
which was duly recorded. She testified as follows:
ATTY. LUCERO:

Q Now, you said that the offer of P5,000.00

selling price accepted by your sister and that
she paid P2,250.00 on January 20, 1976
(Exhibit "F") how about the balance on the
consideration?

Q Will you look at Exhibit "F3" and tell the

Court if you know this Exhibit and why do you
know this?
A This was the receipt prepared by my sister
paid to Elvira M. Vda. de Oate the amount of
One thousand (P1,000.00) pesos as the
payment of the land she purchased.

A The amount of Seven hundred fifty

(P750.00) pesos to make it Three thousand
(P3,000.00) pesos was paid on February 23,
1976 and the two (2) at One thousand pesos
(P1,000.00) were paid on March 20, 1976 and
July 29, 1976, ma'am.

Q Why do you say that the same receipt was

prepared by your late sister Leonor Taguba?
A Yes ma'am because I was present when she
made that receipt. 15

COURT:
Was that admitted by the other party?
ATTY. LUCERO:
May we put it on record that the amount of
P750.00 was paid by Miss Leonor B. Taguba
on February 23, 1976, Your Honor.
COURT:
First receipt is P2,250.00. 13
xxx xxx xxx
ATTY. LUCERO:
The receipt for the amount of Two Thousand
two hundred fifty (P2,250.00) pesos be
marked as Exhibit "F", Your Honor.

Likewise, extant from the records is the witness' explanation of the

contents of each of the said exhibits. Also telling is petitioners'
counsel vigorous cross-examination of the said witness who testified
on the exhibits in question. 16
Herein subject exhibits were also incorporated and made part of the records
of this case. 17
Finally, petitioners' allegation that an action for specific performance cannot
be availed of in this case because the parties did not agree on a fixed price is
likewise devoid of merit. Private respondent's evidence and testimony remain
unrebutted that the contract price for the parcel of land in question is
P5,000.00.
WHEREFORE, finding no reversible error on the part of respondent court, the
decision appealed from is hereby AFFIRMED in toto.
SO ORDERED.
FIRST DIVISION

COURT:
Mark it as Exhibit "F." 14
ATTY. LUCERO:
May we request Your Honor that the amount
of 750.00 receipt be marked as Exhibit "F-1"
dated February 23, 1976; Exhibit "F-2" is the
receipt for P1,000.00 paid on March 20, 1976;
all in all, the amount is P5,000.00 including
Exhibit "J" or rather Exhibit "F-3" which is the
amount of P1,000.00 and was paid apparently
on July 29, 1976 as partial payment for the
parcel of land covered by TCT No. 5167
(sic),Your Honor.
xxx xxx xxx
COURT:

THE HEIRS OF EMILIO G.R. No. 160832

SANTIOQUE, represented by
FELIMON W. SANTIOQUE,
Petitioners, Present:
PANGANIBAN, CJ.,
- versus - Chairperson,
YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,
CALLEJO, SR., and
THE HEIRS OF EMILIO CALMA, CHICO-NAZARIO, JJ.
FABIAN CALMA, AGATONA
CALMA, and DEMETRIA
CALMA, represented by LOPE
AKOL and LUCIA CALMA-AKOL,
and the REGISTER OF DEEDS
OF THE PROVINCE OF TARLAC, Promulgated:
Respondents.

October 27, 2006

-------------------------------------------------------------------------------------------DECISION
CALLEJO, SR., J.:

This is a petition for review on certiorari of the Decision [1] of the Court of
Appeals (CA) in CA-G.R. CV No. 65352 affirming the Decision [2] of the Regional
Trial Court (RTC) in Civil Case No. 8634, as well as the Resolution
dated November 21, 2003 which denied the motion for reconsideration
thereof.

On March 31, 1932, the Governor General granted a homestead

patent over a 20.9740-hectare parcel of land located in Barrio Tibag, Tarlac,
Tarlac. On the basis of said patent, Original Certificate of Title (OCT) No. 1112
was issued by the Register of Deeds on April 21, 1932. The title was
cancelled by Transfer Certificate of Title (TCT) No. 13287. On November 27,
1953, TCT No. 13287 was cancelled by TCT No. 19181 under the names of
Agatona
[3]

Calma,

Fabian

Calma,

Emilio

Calma

and

Demetria

Calma.

OnSeptember 23, 1954, the parties executed a contract of lease in favor of

the Spouses Lope A. Akol, who then executed an Assignment of Leasehold

Rights under the Contract of Lease in favor of the Rehabilitation Finance
Corporation (RFC) on January 26, 1955.[4]

In the meantime, Fabian Calma died intestate. A petition for the

administration of his estate was filed in the RTC of Tarlac docketed as Special
Proceedings No. 1262. Lucia Calma was appointed as administratrix of the
estate. The heirs executed a Deed of Partition over the property on April 17,
1967. On September 13, 1967,[5] TCT No. 19181 was cancelled by TCT No.
71826 in the names of Agatona Calma, Emilio Calma, Demetria Calma and
Fabian Calma.

Meanwhile, in 1967, a 20.564-ha parcel of land located in Tibag,

Tarlac and identified as Lot No. 3844 of Pat-H-132104 - prt. was declared for
taxation purposes under the name of Emilio Santioque (Tax Dec. No. 19675).
[6]

However, the declaration did not bear the name and signature of the

declarant.

On June 3, 1973, Santioque died intestate. His children, Felimon,

Rose,

Filomena,

Jose,

Josefina,

Ana,

Rufino,

and

Avelina,

existence, legality and validity of the Homestead Patent

bearing No. 18577 and OCT No. 1112 issued in the name of
the late Emilio Santioque and

all

surnamed Santioque, filed on February 29, 1998, a complaint in the RTC of

Tarlac for declaration of nullity of title, reconveyance, with damages, over a
piece of land situated in Tibag,Tarlac City. The case was docketed as Civil

1. Ordering Defendants to reimburse to the Plaintiffs

the income, profits or benefits unjustly derived by them from
TCT No. 19181 and 13287 the estimation of which is left to
the sound discretion of the Honorable Court;
2. Ordering the Defendants to pay to the Plaintiffs the
amount of P50,000.00 as attorneys fees;

Case No. 8634.

3. Cost of suit;
The heirs claimed that on March 31, 1932, Emilio was awarded
Homestead Patent No. 18577 by virtue of Homestead Application No. 132104

4. Any and all remedies just and equitable under the

premises.[9]
The heirs of Calma filed a motion to dismiss the complaint alleging
that (a) the action had prescribed and was barred by laches; (b) the claim has

over a lot located in Barrio Tibag, Tarlac City; the said lot was identified as Lot

been abandoned, and (c) the complaint stated no cause of action. [10] The

No. 3844 of the Tarlac Cadastre No. 274, with an area of 20.5464 hectares;

court denied the motion. The heirs of Calma filed their answer, reiterating the

OCT No. 1112 was issued to Emilio on April 21, 1932, and from then had

grounds and allegations in their motion to dismiss by way of special and

affirmative defenses.[11]

enjoyed full ownership and dominion over the said lot; and prior to his death,
Emilio ordered Felimon to work for the recovery of the said property. [7]They

During trial, Felimon Santioque testified for the plaintiffs. He admitted

that they had no copy of OCT No. 1112; the Register of Deeds likewise had no

further averred that when Felimon went to the Register of Deeds of Tarlac for

record of the said title, nor TCT No. 13287. [12] He discovered from the said

a final verification, he discovered that the lot covered by OCT No. 1112 was

office that the subject lot was covered by TCT No. 19181 with the names of

already registered in the names of Agatona, Fabian, Emilio and Demetria, all
surnamed Calma, under TCT No. 19181 issued on November 27, 1953. It
appeared from the said TCT No. 19181 that the title was a transfer from TCT
No. 13287.[8]

Agatona Calma and her co-heirs as owners. [13] The title was, in turn, cancelled
and replaced by TCT No. 71286 also in the names of Agatona Calma and her
co-heirs.
On cross-examination, Felimon declared that his father, Emilio,
mentioned the property to the plaintiffs sometime before he died in 1973.
From that time on, he tried to ascertain the particulars of the property and

The heirs contended that Emilio was the first registrant of the subject
lot and, as such, was its lawful owner. The land could no longer be the subject

succeeded in 1990 only when he went through the records at the Community
Environment and Natural Resources Office (CENRO).[14]

matter of subsequent cadastral proceedings, and any title issued pursuant

thereto would be void. They prayed that judgment be rendered in their favor,
as follows:
WHEREFORE, it is most respectfully prayed that after
due notice and hearing, judgment be rendered ordering the
nullification of TCT No. 19181 and TCT No. 13287 of the
Register of Deeds of Tarlac and upholding and declaring the

Felimon declared that, on August 4, 1992, he secured a document

from the Lands Management Bureau (LMB) stating that on March 1 to 6,
1930, a parcel of land with an area of 209,746 square meters located in
Tibag, Tarlac, Tarlac, was surveyed by W. Santiago and approved on February
27, 1932.[15] However, the document was not certified by the Chief Geodetic
Engineer. Neither did the plaintiffs present the employee of the Bureau who

of Cadastral Survey No. 274 and as indicated in the Area Sheet of Lot 3844,

APPELLANTS FAILED TO PROVE THAT ORIGINAL CERTIFICATE

OF TITLE NO. 1112 WAS ISSUED IN THE NAME OF EMILIO
SANTIOQUE, THE PLAINTIFFS PREDECESSOR-IN-INTEREST,
DESPITE THE FACT THAT SUFFICIENT, ADEQUATE AND
CONVINCING EVIDENCE HAVE BEEN PRESENTED TO PROVE
THAT SAID OCT 1112 WAS ISSUED IN THE NAME OF EMILIO
SANTIOQUE.

Cad. 274, Emilio Santioque was the claimant of the lot. However, the Bureau

II

prepared the document to testify on its authenticity.

Felimon

admitted

that

Amando

Bangayan, Chief,

Records

Management Division of the LMB certified that, based on the survey records

had no available records of Homestead Application No. 132104 and

(LRA), certified that after due verification of the records of the Book of

THE TRIAL COURT ERRED IN RESORTING TO SPECULATIONS,

SURMISES AND CONJECTURES WHEN IT RULED THAT OCT
1112 COULD HAVE BEEN ISSUED TO ANOTHER PERSON
OTHER THAN THE LATE EMILIO SANTIOQUE.

Cadastral Lots, Lot 3844 had been the subject of Cadastral Case No. 61, LRC

III

Homestead Patent No. 18577 dated March 31, 1932.[16] Felino Cortez, Chief,
Ordinary and Cadastral Decree Division of the Land Registration Authority

Cad. Record No. 1879; the case had been decided but no final decree of

issuance of TCT No. 19181. He explained that in 1987 and 1988, his office

THE TRIAL COURT ALSO RESORTED TO SPECULATIONS,

SURMISES AND CONJECTURES WHEN IT HELD THAT THERE
WAS NO EVIDENCE TO PROVE THAT PATENT NO. 18577 WAS
ISSUED TO EMILIO SANTIOQUE, THUS DISREGARDING THE
COMPETENT AND SUFFICIENT EVIDENCE ADDUCED BY
PLAINTIFFS-APPELLANTS TO PROVE THAT SAID PATENT WAS
ISSUED TO EMILIO SANTIOQUE.

had to be reconstructed, and titles and documents had to be moved from one

IV

registration had been issued; and the lot was subject to the annotation con
patent No. 18577 segun report of B.L.[17] The Register of Deeds of Tarlac
stated that, on January 25, 1998, despite diligent efforts, he could not locate
TCT No. 13287 and OCT No. 1112 or any other document leading to the

place

to

another.[18] The

Register

of

Deeds

issued

certification[19] dated September 10, 1998 stating that despite diligent efforts,
he could not locate OCT No. 1112 or any document showing how it was
cancelled.The Records Officer of the Register of Deeds in Tarlac City also
certified that OCT No. 1112 and TCT No. 13287 could not be found despite
diligent efforts.[20]
After the heirs of Santioque rested their case, the defendants, heirs of
Calma, demurred to plaintiffs evidence and sought its dismissal on the
ground that the latter failed to establish a preponderance of evidence to
support their ownership over the property.[21]
On August 11, 1999, the trial court issued an Order [22] granting the
demurrer and dismissing the complaint on the ground that plaintiffs failed to
establish their case.
The heirs of Santioque appealed said order to the CA claiming that
I
THE TRIAL COURT ERRED IN HOLDING THAT PLAINTIFFS-

THE TRIAL COURT ERRED IN HOLDING THAT TCT NO. 19181

ISSUED TO DEFENDANTS-APPELLEES WAS PRESUMED TO
HAVE BEEN ISSUED IN THE ORDINARY COURSE OF BUSINESS
WHEN IN FACT ITS ISSUANCE IS PLAINLY FRAUDULENT AND
EVIDENTLY ANOMALOUS.

V
THE TRIAL COURT ERRED IN SWEEPINGLY CONCLUDING THAT
DEFENDANTS-APPELLEES HAVE ACQUIRED THE SUBJECT
PROPERTY BY ACQUISITIVE PRESCRIPTION AND IN RULING
THAT PLAINTIFFS-APPELLANTS HAVE SLEPT ON THEIR RIGHT
FOR MANY YEARS AND THAT THEY HAVE CONSTRUCTIVE
NOTICE OF THE ISSUANCE OF DEFENDANTS-APPELLEES TITLE,
THUS THEY ARE ESTOPPED BY LACHES.

6.

Certification of Mr. Andres B. Obiena, Records Officer I

of the Register of Deeds of Tarlac, Tarlac, dated April 5,
1999, that OCT No. 1112 could not be located in the
archives;[30]

7.

Certification of Mr. Meliton I. Vicente, Jr., Community

Environment and Natural Resources Officer of the DENR,
Region III, that Lot No. 3844 is already covered by
Homestead Application No. 132104 with Patent No. 1877
issued to Emilio Santioque on March 31, 1932;[31]

8.

Certified xerox copy of Record Book Page 383 signed by

Florida S. Quiaoit, Records Management Unit, CENRO III6, Tarlac City, showing that Emilio Santioque is a claimant
of Lot No. 3844 under Homestead Application No. HA132104 and Patent No. 1877;[32]

9.

Certified xerox copy of Area Sheet over Lot 3844

prepared for Emilio Santioque, certified by Emilanda M.
David, Record Officer 1, DENRO, San Fernando,
Pampanga dated February 29, 2000;[33]

VI
THE TRIAL COURT ERRED IN REFUSING WITHOUT VALID
CAUSE
TO
ISSUE SUBPOENA
DUCES
TECUM AND AD
TESTIFICANDUM TO THE REGISTER OF DEEDS OF TARLAC
AND THE LAND REGISTRATION AUTHORITY IN ORDER TO
SHED LIGHT ON THE WHEREABOUTS OF OCT 1112 AND THE
ISSUANCE OF TCT NOS. 13287, 19181 AND 71826. [23]

On August 30, 2000, Felimon Santioque wrote to the Director of

the National Bureau of Investigation (NBI), Federico Opinion, Jr.,

10. Certified xerox copy of Case No. 6, Cad Record No. I,

showing that Emilio Santioque was the claimant of Lot
No. 3844, under Pat-H-132104 Part.[34]

requesting for his assistance in investigating the disappearance of the

copy of the Registrar of Deeds of Tarlac of OCT No. 1112 and TCT No.
13287.[24] Attached to the said letter were the following certifications and

The heirs of Santioque did not present the said documents at the trial
below but they included the same in their appellants brief.

investigation reports of the LRA:

1.

Xerox copy of TCT No. 71826 dated September 13,

1967 under the names of Agatona Calma, Emilio Calma,
Dorotea Calma and Lucia Calma.[25]

2.

Certified xerox copy Tax Declaration No. 22116 in the

name of Agatona Calma, et al;[26]

3.

Certified xerox copy of Tax Declaration No. 39766 in the

name of Agatona Calma, et al;[27]

4.

Certified xerox copy of Tax Declaration No. 35226 in the

names of Agatona Calma, et al;[28]

5.

Certified xerox copy of the Investigation Report of Mr.

Felix Cabrera Investigator, Land Registration Authority,
dated September 30, 1999, finding that there are no
documents in the Registry supporting the cancellation of
OCT 1112 and the issuance of TCT Nos. 13287, and that
TCT No. 71826 is irregularly issued inasmuch as no
transaction which would justify its issuance appears in
the Primary Entry Book;[29]

Without waiting for the report of the NBI on their request, the heirs of
Santioque filed a motion with the CA for the early resolution of the case.
[35]

On June 27, 2003, the CA affirmed the appealed decision. [36] The appellate

court did not give probative weight to the certifications and other documents
submitted by the heirs of Santioque, as their authenticity had not been
established and the signatories therein were not presented for crossexamination. It noted that none of the crucial documents were presented in
the trial court. Assuming that OCT No. 1112 was indeed issued to Emilio
Santioque, the claim of his heirs was nevertheless barred by laches; the latter
must bear the consequences of their fathers inaction.

The heirs of Santioque filed a motion for reconsideration, which the

CA resolved to deny on November 21, 2003.[37]

The heirs of Santioque, now petitioners, seek relief from this

Court on the following issues:
I.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS
ERRED IN NOT GIVING CREDENCE TO THE CERTIFICATIONS,
DOCUMENTS, RECORDS AND PICTURES SUBMITTED BY
PETITIONER BEFORE THE SAID COURT ON THE GROUND THAT
THEY WERE NOT SUBMITTED IN EVIDENCE AT THE TRIAL AND
THAT THEIR AUTHENTICITY HAS NOT BEEN ESTABLISHED,
DESPITE THE FACT THAT PETITIONERS FAILURE TO SUBMIT
THE SAME AS EVIDENCE BEFORE THE TRIAL COURT AND TO
ESTABLISH THEIR AUTHENTICITY WAS DUE TO THE
PREMATURE AND UNJUSTIFIED DISMISSAL OF THEIR
COMPLAINT, WHICH WAS TANTAMOUNT TO DENIAL OF THEIR
RIGHT TO BE HEARD AND TO DUE PROCESS.
II.
THE HONORABLE COURT OF APPEALS ERRED IN NOT
HOLDING THAT DESPITE PETITIONERS FAILURE TO PRESENT
THEIR ORIGINAL CERTIFICATE OF TITLE, OCT NO. 1112,
SUFFICIENT AND CONVINCING EVIDENCE WERE ADDUCED BY
PETITIONERS TO PROVE THAT SAID TITLE WAS ISSUED TO
THEIR PREDECESSOR-IN-INTEREST, EMILIO SANTIOQUE. ON
THE OTHER HAND, SINCE PETITIONERS COMPLAINT WAS
DISMISSED BY THE TRIAL COURT ON RESPONDENTS
DEMURRER TO EVIDENCE, THE RESPONDENTS FAILED EITHER
(1) TO CONTROVERT THE EVIDENCE ADDUCED BY
PETITIONERS IN SUPPORT OF THEIR CLAIM OVER THE
SUBJECT PROPERTY OR THEIR PRETENSION OF FACTS.
III.
THE
HONORABLE
COURT
OF
APPEALS
GRAVELY
MISAPPREHENDED THE FACTS OF THE CASE WHEN IT HELD
THAT RESPONDENTS ARE IN ACTUAL POSSESSION OF THE
SUBJECT PROPERTY, DESPITE CLEAR ABSENCE OF EVIDENCE
BY RESPONDENTS TO SUPPORT THEIR CLAIM OF POSSESSION
AND AS EVIDENCED BY THE PICTURES SUBMITTED BY
PETITIONERS.
IV.
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING
THAT PETITIONERS DID NOTHING TO RECOVER THEIR
CERTIFICATE OF TITLE, OCT NO. 1112, IN A DIRECT ACTION IF
INDEED SAID OCT NO. 1112 WAS ISSUED TO EMILIO
SANTIOQUE AND INVALIDLY CANCELLED AND REPLACED WITH
TCT NO. 13287 IN THE NAME OF RESPONDENTS, AND THAT

THE PETITIONERS SHOULD BEAR THE CONSEQUENCES OF

THEIR FATHER EMILIO SANTIOQUES INACTION, DESPITE THE
FACT THAT PETITIONERS HAVE BEEN VIGILANT OF THEIR
RIGHTS AND, HENCE, PRESCRIPTION AND LACHES DO NOT
BAR PETITIONERS COMPLAINT.
V.
WHETHER OR NOT REMAND OF THE INSTANT CASE TO
THE LOWER COURT IS PROPER, INSTEAD OF A DECISION ON
THE MERITS.[38]

Petitioners contend that the appellate court erred in not giving

credence to the certifications, records, documents and pictures they attached
to their appellants brief. They aver that they had not yet discovered the said
documents when they presented their evidence at the trial court; hence, they
could have presented the documents and their affiants during the rebuttal
stage of the proceedings had the trial court not prematurely aborted the
proceedings before it. They insist that they were denied their right to due
process when the trial court granted respondents demurrer to evidence and
dismissed the case.[39]
Petitioners aver that they have clearly shown and proven their claim
over the property, particularly through Tax Dec. No. 19675 and the contents
of the Record Book. They posit that judicial notice should be taken that tax
declarations are usually issued in the name of the prospective owner upon a
showing of the basis of ownership. On the other hand, respondents have no
factual and evidentiary basis to support their claim over the subject property
since they have not adduced before the trial court any documentary and
testimonial evidence to support ownership of the property. Petitioners further
contend that they have clearly shown, through the pictures they submitted
before the appellate court, that respondents have not been in actual
possession of the property; hence, it cannot be presumed that respondents,
as registered owners, are likewise in possession of the subject property. [40]

Petitioners aver that prescription and laches do not bar their complaint since
they have been vigilant in protecting their rights. They contend that Emilio

was old and sickly and died at an old age. Laches presupposes negligence,

Demurrer to evidence authorizes a judgment on the merits of the

and neither Emilio nor his successors were negligent in protecting their rights

case without the defendant having to submit evidence on his part as he

over the subject property. It took sometime before they could lodge a

would ordinarily have to do, if it is shown by plaintiffs evidence that the latter

complaint against respondents because they had to make inquiries first and

is not entitled to the relief sought. The demurrer, therefore, is an aid or

retrieve documents from different offices to support their claim. [41]

instrument for the expeditious termination of an action, similar to a motion to

dismiss, which a court or tribunal may either grant or deny. [44]

For their part, respondents aver that there were no indicia of proof that OCT
No.1112 was really issued to Emilio. The evidence proffered by the petitioners
only tends to prove that Emilio was a mere claimant. It is not incumbent upon
the respondents to present any proof that they are the owners of the subject
lot because the property is registered in their name. The mere fact that the
records are not available would not ipso facto mean that the transactions
made affecting OCT No. 1112 were irregular.[42]

A demurrer to evidence may be issued when, upon the facts and the
law, the plaintiff has shown no right to relief. [45] Where the plaintiffs evidence
together with such inferences and conclusions as may reasonably be drawn
therefrom does not warrant recovery against the defendant, a demurrer to
evidence should be sustained. [46] A demurrer to evidence is likewise
sustainable when, admitting every proven fact favorable to the plaintiff and
indulging in his favor all conclusions fairly and reasonably inferable

Respondents further aver that the appellate court was correct in not
giving credence to the documents, which were not submitted during the trial
even though they were obtainable at that time. To allow the introduction of
these documents on appeal would violate the essence of due process as the

therefrom, the plaintiff has failed to make out one or more of the material
elements of his case,[47] or when there is no evidence to support an allegation
necessary to his claim.[48] It should be sustained where the plaintiffs evidence
is prima facie insufficient for a recovery.[49]

respondents would not be able to interpose objections to their admissibility.

Even if these documents were admitted, they would not help petitioners case
since they would still not prove that Emilios claim ripened into full ownership.
Respondents likewise agree with the finding of the appellate court that the
complaint is already barred by prescription and laches. [43]

Petitioners, as plaintiffs below, were obliged to prove their claim in

their complaint that their father, Emilio, applied for and was granted
Homestead Patent No. 18577, and that OCT No. 1112 was issued by the
Register of Deeds in his name on the basis of said patent. Petitioners had the
burden of proof to present evidence on the fact in issue to establish their

The petition is without merit.

claim by their own evidence required by law. [50] More so, where, as in this
case, on the face of TCT No. 19181 under the names of the respondents, it

The core issues in this case are: (1) whether the trial court erred in
granting the demurrer to evidence of respondents, and (2) whether
petitioners claim is barred by prescription and laches.
On the first issue, the Court holds that CA ruling which affirmed that
of the RTC granting the demurrer is correct.

was derived from TCT No. 13287, which in turn cancelled OCT No. 1112
issued on April 21, 1932 on the basis of a homestead patent. It must be
stressed that the original certificate of title carries a strong presumption that
the provisions of law governing the registration of land have been complied
with. The OCT enjoys a presumption of validity. Once the title is registered,
the owners can rest secure on their ownership and possession. [51] Once a

homestead patent granted in accordance with law is registered, the

applicant should comply with before a patent could be issued to him, thus:

certificate of title issued in virtue of said patent has the force and effect of
a Torrens title issued under the land registration law.[52]

In the present case, petitioners failed to prove the material

allegations in their complaint that Emilio Santioque applied for and was
granted Patent No. 18577 and that OCT No. 1112 was issued on the basis
thereof. We quote with approval the ruling of the RTC:
The plaintiffs failed to prove that OCT [N]o. 1112 was
issued in the name of Emilio Santioque. It was issued all right,
but there is no evidence it was in the name of Emilio
Santioque. OCT [N]o. 1112 could have been in the name of
another person. Exhibit B merely shows that Emilio Santioque
is a survey claimant.
Exhibit A contradicted all these claims of plaintiffs. It
is stated therein that Lot No. 3844 of Tarlac Cadastre,
Cadastral Case [N]o. 61, L.R.C. Record No. 1879 was
previously decided but no final decree of registration has yet
issued thereon. Hence, there was already a decision by the
cadastral court. In whose favor the land was awarded is a
mystery up to the date.
There is also no evidence that [P]atent [N]o. 18577
was issued to Emilio Santioque. In fact, there is no available
record to prove that [P]atent [N]o. 18577 was in the name of
Emilio Santioque. (Exhibit B-1) It is safe to assume that the
decision of the cadastral Court awarded the land to a person
who was also the awardee of [P]atent [N]o. 18577, because
of the entry said lot is subject to annotation quote: con
patent no. 18577 segun report of the B.L. , this being the very
reason why no decree of registration was issued pursuant to
the cadastral proceeding.[53]

Petitioners even failed to present Homestead Application No. 132104

allegedly filed by Emilio with the Bureau of Lands. In fact, as evidenced by
the Certification of the LMB, it had no record of said application and
patent. The records of the LMB relative to Cadastral Case No. 61 and LRC
Cad. Record No. 1879 were, likewise, not presented.
It should be noted that, under Section 14 of Commonwealth Act 141,
The Public Land Act, there are certain requirements that a homestead

SECTION 14. No certificate shall be given or patent

issued for the land applied for until at least one-fifth of the
land has been improved and cultivated. The period within
which the land shall be cultivated shall not be less than one
nor more than five years, from the date of the approval of the
application. The applicant shall, within the said period, notify
the Director of Lands as soon as he is ready to acquire the
title. If at the date of such notice, the applicant shall prove to
the satisfaction of the Director of Lands, that he has resided
continuously for at least one year in the municipality in which
the land is located, or in a municipality adjacent to the same,
and has cultivated at least one-fifth of the land continuously
since the approval of the application, and shall make affidavit
that no part of said land has been alienated or encumbered,
and that he has complied with all the requirements of this
Act, then, upon the payment of five pesos, as final fee, he
shall be entitled to a patent.

Petitioners failed to present competent and credible evidence that

Emilio Calma complied with the aforesaid requirements before his death.

Petitioners rely on Tax Dec. No. 19675 to substantiate their claim over
the subject property. However, it is axiomatic that tax receipts and tax
declarations of ownership for taxation purposes do not constitute sufficient
proof of ownership. They must be supported by other effective proofs. [54]

The appellate court was also correct in not giving credence to the

evidence is newly discovered, or where it has been omitted through

certifications which petitioners submitted before it on the ground that

inadvertence or mistake, or where the purpose of the evidence is to correct

the said documents were not presented in the trial court. Petitioners, thus,

evidence previously offered.[62]

failed to prove the authenticity of said documents because they failed to

present the government officials who certified the same.

It is true that petitioners failed to adduce rebuttal evidence

because respondents filed a Demurrer to Evidence. However, petitioners

It is well settled that courts will consider as evidence only that which

should have filed a motion for new trial based on newly-discovered evidence

has been formally offered,[55] otherwise, the opposing party would be denied

under Rule 37, Section 2 of the 1997 Rules of Civil Procedure after the trial

due process of law.[56]Thus, the Court explained in one case that

court granted the demurrer and dismissed the complaint.

A formal offer is necessary since judges are required to base

their findings of fact and judgment onlyand strictlyupon the
evidence offered by the parties at the trial. To allow a party to
attach any document to his pleading and then expect the
court to consider it as evidence may draw unwarranted
consequences. The opposing party will be deprived of his
chance to examine the document and object to its
admissibility. The appellate court will have difficulty reviewing
documents not previously scrutinized by the court below. [57]

Petitioners aver that the documents they submitted on appeal were

not yet discovered during the presentation of their evidence before the trial
court.[63] Assuming this claim to be true, the Court notes however, that
petitioners nevertheless failed to establish that they could not, with
reasonable diligence, have discovered and produced the documents at the
trial, and prove that such documents would probably alter the result, if

Petitioners, however, contend that they could have presented the

presented. The documents belatedly submitted by petitioners on appeal can

said documents during the rebuttal stage of the proceedings before the trial

hardly

be

considered

court. It bears stressing, however, that a plaintiff is bound to introduce all

records. Petitioners

evidence that supports his case during the presentation of his evidence in

trial. Moreover, a perusal of these documents reveals that even if admitted,

chief.[58] A party holding the affirmative of an issue is bound to present all of

they would not, in any way, bolster petitioners case, or remedy the vacuum

the evidence on the case in chief before the close of the proof, and may not

in their evidence-in-chief.

could

newly
have

discovered
earlier

since

secured

they

copies

are

public

thereof

during

add to it by the device of rebuttal. [59] After the parties have produced their
respective direct proofs, they are allowed to offer rebutting evidence only. [60]

Further, we agree with the appellate court that petitioners complaint

is barred by prescription and laches. An action for reconveyance prescribes in

Generally, rebuttal evidence is confined to that which explains,

disproves, or counteracts evidence introduced by the adverse party. It is not
intended to give a party an opportunity to tell his story twice or to present
evidence that was proper in the case in chief. [61] However, the court for good
reasons, in the furtherance of justice, may permit them to offer evidence
upon their original case, and its ruling will not be disturbed in the appellate
court where no abuse of discretion appears. This is usually allowed when the

ten years, the point of reference being the date of registration of the deed or
the date of issuance of the certificate of title over the property. [64] Even if we
reckon the prescription period from TCT No. 19181 issued on November 27,
1953, the only title verified to be in the name of respondents, more than ten
years have already elapsed since then until the time the petitioners filed their
complaint

on February

29,

1998.

An

action

for

reconveyance

is

imprescriptible only when the plaintiff is in actual possession of the property.

[65]

In the present case, there is no showing that petitioners were in actual

possession of the subject property.

In any event, petitioners cause of action is likewise barred by laches.
The essence of laches or stale demands is the failure or neglect for an
unreasonable and unexplained length of time to do that which, by exercising
due diligence, could or should have been done earlier, thus giving rise to the
presumption that the party entitled to assert it either has abandoned or
declined to assert it.[66] Petitioners right of action had long been barred by
laches during the lifetime of their father, their predecessor in interest;
petitioners must necessarily bear the consequences of their predecessors
inaction. We quote, with approval, the following ruling of the CA:
The trial court further held that There is also no
evidence that patent No. 18577 was issued to Emilio
Santioque. In fact, there is no available record to prove that
patent No. 18577 was in the name of Emilio Santioque.
(Exhibit B-1). We add that nowhere in the certificates of title
presented by appellants is the source of OCT No. 1112
indicated as Homestead Patent No. 18577.
Even assuming that appellants constructive notice of
another title over Lot No. 3844 could be reckoned only from
1953 when TCT No. 19181 was issued to replace TCT No.
13287, still appellants and their predecessors-in-interest
waited 45 years before bringing the action below. Meanwhile,
Lot No. 3844 became the subject of various litigations among
appellees and with third parties, as well as several
transactions, such as the contract of lease between Emilio
Calmas heirs and spouses Lope A. Akol from 1954-1964
(Entry No. 46563); the Assignment of Leasehold rights to
Rehabilitation Finance Corporation, 1955 (Entry No. 53205);
the Termination of Lease (Entry No. 1-7584; the Partial
Release of Leasehold (Entry No. 65888). No proof was
submitted in the court below to belie the actual possession of
the subject lot by the appellees, who as the registered
owners are also presumed to be in possession of the same.
While the indefeasibility of the Torrens title of
appellees can be claimed only if a previous valid title to the
same parcel does not exist (Register of Deeds vs. Philippine
National Bank, 13 SCRA 46), appellants have failed to
establish that OCT No. 1112 was issued in their fathers name
and was later invalidly cancelled in 1947 and replaced with
TCT No. 13287. Only in 1998 was an action brought to
directly question the validity of TCT No. 13287. The principle
of laches has indeed come into play. Laches or stale demand

is based upon grounds of public policy which requires for the

peace of society the discouragement of stale actions, and
unlike the statute of limitations is not a mere question of time
but primarily a question of the inequality or unfairness of
permitting a right or claim to be enforced or asserted
(Pangilinan vs. Court of Appeals, 279 SCRA 590). In Agne vs.
Director of Lands, 181 SCRA 793, 809 [1990], it was held that
the failure of the registered owners to assert their claim over
the disputed property for almost thirty (30) years constituted
laches.
The question of laches is addressed to the sound
discretion of the court. Laches being an equitable doctrine, its
application is controlled by equitable considerations, although
the better rule is that courts under the principle of equity will
not be guided or bound strictly by the statute of limitations or
doctrine of laches when to do so would result in manifest
wrong or injusticed result (Santiago vs. Court of Appeals, 278
SCRA 98).
We are aware of rulings to the effect that even if the
defendants have been in actual possession of the property for
more than ten (10) years, the registered title of plaintiffs over
the property cannot be lost by prescription or laches (Board
of Liquidators vs. Roxas, 179 SCRA 809); or that an action by
the registered owner to recover possession based on a
Torrens title is not barred by laches (Dablo vs. Court of
Appeals, 226 SCRA 621). However, the laches committed by
the appellants pertained to the establishment of their very
title itself. Only after they have recovered their title could
they then have standing to question the title of the
appellants and recover possession of the subject lot. Besides,
it has been held that an action for reconveyance or quieting
of title instituted only after thirty (30) years could be barred
by laches (City Government of Danao vs. Monteverde
Consunji, 358 SCRA 107). This being so, all the more should
an action to recover title, filed after 45 years, be barred by
laches where the complainants title is itself clearly doubtful.
[67]

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack

of merit. The Decision and Resolution of the Court of Appeals in CA-G.R. CV
No. 65352 areAFFIRMED. Cost against the petitioners.
SO ORDERED.
THIRD DIVISION

[G.R. No. 136860. January 20, 2003]

PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee, vs. AGPANGA
LIBNAO y KITTEN and ROSITA NUNGA y VALENCIA, accused.
AGPANGA LIBNAO y KITTEN, accused-appellant.

a checkpoint in Barangay Salapungan to apprehend the suspects.Witness

SPO1 Marlon Gamotea, PO3 Florante Ferrer and SPO3 Roberto Aquino were
assigned to man the checkpoint.
At about 1:00 oclock in the morning of the following day, SPO1 Gamotea
and PO3 Ferrer flagged down a passing tricycle. It had two female passengers
seated inside, who were later identified as the appellant Agpanga Libnao and
her co-accused Rosita Nunga. [3] In front of them was a black bag. Suspicious
of the black bag and the twos uneasy behavior when asked about its
ownership and content, the officers invited them to Kabayan Center No.2
located at the same barangay. They brought with them the black bag.

DECISION
PUNO, J.:
Before us is an appeal from the Decision dated November 19, 1998 of
the Regional Trial Court, Branch 65, Tarlac City, finding appellant Agpanga
Libnao and her co-accused Rosita Nunga guilty of violating Article II, Section
4 of R.A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972.
[1]
For their conviction, each was sentenced to suffer an imprisonment
of reclusion perpetua and to pay a fine of two million pesos.
Appellant and her co-accused were charged under the following
Information:
That on or about October 20, 1996 at around 1:00 oclock dawn, in the
Municipality of Tarlac, Province of Tarlac, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused conspiring,
confederating and helping with one another, without being lawfully
authorized, did then and there willfully, unlawfully and feloniously make
delivery/transport with intent to sell marijuana leaves wrapped in a
transparent plastic weighing approximately eight (8) kilos, which is in
violation of Section 4, Article II of RA 6425, otherwise known as the
Dangerous Drugs Act of 1972, as amended.
CONTRARY TO LAW.[2]
During their arraignment, both entered a plea of Not Guilty. Trial on the
merits ensued.
It appears from the evidence adduced by the prosecution that in August
of 1996, intelligence operatives of the Philippine National Police (PNP)
stationed in Tarlac, Tarlac began conducting surveillance operation on
suspected drug dealers in the area. They learned from their asset that a
certain woman from Tajiri, Tarlac and a companion from Baguio City were
transporting illegal drugs once a month in big bulks.
On October 19, 1996, at about 10 oclock in the evening, Chief Inspector
Benjamin Arceo, Tarlac Police Chief, held a briefing in connection with a tip
which his office received that the two drug pushers, riding in a tricycle, would
be making a delivery that night. An hour later, the Police Alert Team installed

Upon reaching the center, PO3 Ferrer fetched Barangay Captain Roy
Pascual to witness the opening of the black bag. In the meantime, the two
women and the bag were turned over to the investigator on duty, SPO3
Arthur Antonio. As soon as the barangay captain arrived, the black bag was
opened in the presence of the appellant, her co-accused and personnel of the
center. Found inside it were eight bricks of leaves sealed in plastic bags and
covered with newspaper. The leaves were suspected to be marijuana.
To determine who owns the bag and its contents, SPO3 Antonio
interrogated the two. Rosita Nunga stated that it was owned by the
appellant. The latter, in turn, disputed this allegation. Thereafter, they were
made to sign a confiscation receipt without the assistance of any counsel, as
they were not informed of their right to have one. During the course of the
investigation, not even close relatives of theirs were present.
The seized articles were later brought to the PNP Crime Laboratory in
San Fernando, Pampanga on October 23, 1996. Forensic Chemist Daisy P.
Babu conducted a laboratory examination on them. She concluded that the
articles were marijuana leaves weighing eight kilos. [4]
For their part, both accused denied the accusation against them. Rosita
Nunga testified that in the evening of October 19,1996, she went to buy
medicine for her ailing child at a pharmacy near the Tarlac Provincial
Hospital. The child was suffering from diarrhea, occasioned by abdominal
pain. To return to their house, she boarded a tricycle bound for Barangay
Tariji, where she resides. Along the way, the tricycle she was riding was
flagged down by a policeman at a checkpoint in Barangay Salapungan. She
was taken aback when the officer invited her to the Kabayan Center. It was
there that she was confronted with the black bag allegedly containing eight
bricks of marijuana leaves. She disputed owning the bag and knowing its
contents. She also denied sitting beside the appellant in the passengers seat
inside the tricycle, although she admitted noticing a male passenger behind
the driver.
Remarkably, appellant did not appear in court and was only represented
by her lawyer. The latter marked and submitted in evidence an affidavit
executed by one Efren Gannod, a security guard of Philippine Rabbit Bus
Lines in Tarlac, Tarlac. The sworn statement declared that at about 0220H on
October 20, 1996, SPO2 Antonio arrived at their terminal and arrested a
certain woman who boarded their Bus No. 983. The incident was recorded in

the companys logbook. Gannod, however, was not presented in court to

attest that the woman referred in his affidavit was the appellant.
After trial, the court convicted appellant and her co-accused Rosita
Nunga, thus:
WHEREFORE, finding both accused guilty beyond reasonable doubt of the
offense of violation of Article II, Section 4 of RA 6425 in relation to RA 7659,
they are hereby sentenced to suffer an imprisonment of reclusion perpetua
and to pay a fine of two million pesos.
SO ORDERED.[5]
Aggrieved by the verdict, appellant interposed the present appeal. In her
brief, she assigned the following errors:
1. The Honorable Regional Trial Court failed to appreciate the contention of
the defense that the right of accused against illegal and unwarranted arrest
and search was violated by the police officers who arrested both accused.
2. The Honorable Court failed to appreciate the contention of the defense
that the right of the accused to custodial investigation was deliberately
violated by the peace officers who apprehended and investigated the
accused.
3. The Honorable Court miserably failed to evaluate the material
inconsistencies in the testimonies of the prosecutions witnesses which
inconsistencies cast doubt and make incredible the contention and version of
the prosecution.
4. The Honorable Court gravely abused its discretion when it appreciated and
considered the documentary and object evidence of the prosecution not
formally offered amounting to ignorance of the law.[6]
We are not persuaded by these contentions; hence, the appeal must be
dismissed.
In arguing that her arrest was unlawful, appellant capitalizes on the
absence of a warrant for her arrest. She contends that at the time she was
apprehended by the police officers, she was not committing any offense but
was merely riding a tricycle. In the same manner, she impugns the search
made on her belongings as illegal as it was done without a valid warrant or
under circumstances when warrantless search is permissible. Consequently,
any evidence obtained therein is inadmissible against her.
These arguments fail to impress. The general rule is that a search may
be conducted by law enforcers only on the strength of a search warrant
validly issued by a judge as provided in Article III, Section 2 of the 1987
Constitution, thus:
The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and
for any purpose shall be inviolable, and no search warrant and warrant of

arrest shall issue except upon probable cause to be determined personally by

the judge after examination under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.[7]
The constitutional guarantee is not a blanket prohibition against all searches
and seizures as it operates only against unreasonable searches and
seizures. Searches and seizures are as a rule unreasonable unless authorized
by a validly issued search warrant or warrant of arrest. Thus, the fundamental
protection accorded by the search and seizure clause is that between persons
and police must stand the protective authority of a magistrate clothed with
power to issue or refuse to issue search warrants and warrants of arrest. [8]
Be that as it may, the requirement that a judicial warrant must be
obtained prior to the carrying out of a search and seizure is not
absolute. There are certain familiar exceptions to the rule, one of which
relates to search of moving vehicles.[9] Warrantless search and seizure of
moving vehicles are allowed in recognition of the impracticability of securing
a warrant under said circumstances as the vehicle can be quickly moved out
of the locality or jurisdiction in which the warrant may be sought. [10] Peace
officers in such cases, however, are limited to routine checks where the
examination of the vehicle is limited to visual inspection. [11] When a vehicle is
stopped and subjected to an extensive search, such would be constitutionally
permissible only if the officers made it upon probable cause, i.e., upon a
belief, reasonably arising out of circumstances known to the seizing officer,
that an automobile or other vehicle contains as item, article or object which
by law is subject to seizure and destruction.[12]
In earlier decisions, we held that there was probable cause in the
following instances: (a) where the distinctive odor of marijuana emanated
from the plastic bag carried by the accused; [13] (b) where an informer
positively identified the accused who was observed to be acting suspiciously;
[14]
(c) where the accused who were riding a jeepney were stopped and
searched by policemen who had earlier received confidential reports that said
accused would transport a quantity of marijuana; [15] (d) where Narcom agents
had received information that a Caucasian coming from Sagada, Mountain
Province had in his possession prohibited drugs and when the Narcom agents
confronted the accused Caucasian because of a conspicuous bulge in his
waistline, he failed to present his passport and other identification papers
when requested to do so;[16] (f) where the moving vehicle was stopped and
searched on the basis of intelligence information and clandestine reports by a
deep penetration agent or spy -- one who participated in the drug smuggling
activities of the syndicate to which the accused belong -- that said accused
were bringing prohibited drugs into the country; [17] (g) where the arresting
officers had received a confidential information that the accused, whose
identity as a drug distributor was established in a previous test-buy
operation, would be boarding MV Dona Virginia and probably carrying shabu
with him;[18] (h) where police officers received an information that the
accused, who was carrying a suspicious-looking gray luggage bag, would
transport marijuana in a bag to Manila; [19] and (i) where the appearance of
the accused and the color of the bag he was carrying fitted the description
given by a civilian asset.[20]

The warrantless search in the case at bench is not bereft of a probable

cause. The Tarlac Police Intelligence Division had been conducting
surveillance operation for three months in the area. The surveillance yielded
the information that once a month, appellant and her co-accused Rosita
Nunga transport drugs in big bulks. At 10:00 pm of October 19, 1996, the
police received a tip that the two will be transporting drugs that night riding a
tricycle. Surely, the two were intercepted three hours later, riding a tricycle
and carrying a suspicious-looking black bag, which possibly contained the
drugs in bulk. When they were asked who owned it and what its content was,
both became uneasy. Under these circumstances, the warrantless search and
seizure of appellants bag was not illegal.
It is also clear that at the time she was apprehended, she was
committing a criminal offense. She was making a delivery or transporting
prohibited drugs in violation of Article II, Section 4 of R.A. No. 6425. Under the
Rules of Court, one of the instances a police officer is permitted to carry out a
warrantless arrest is when the person to be arrested is caught committing a
crime in flagrante delicto, thus:
Section 5. Arrest without Warrant; when lawful. - A peace officer or a private
person may, without warrant, arrest a person:
(a) When in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has probable
cause to believe based on personal knowledge of facts or circumstances that
the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
x x x.[21] (emphasis supplied)
Appellant also takes issue of the fact that she was not assisted by a
lawyer when police officers interrogated her. She claimed that she was not
duly informed of her right to remain silent and to have competent counsel of
her choice. Hence, she argues that the confession or admission obtained
therein should be considered inadmissible in evidence against her.
These contentions deserve scant attention. Appellant did not make any
confession during her custodial investigation. In determining the guilt of the
appellant and her co-accused, the trial court based its decision on the
testimonies of prosecution witnesses and on the existence of the confiscated
marijuana. We quote the relevant portion of its decision:
Earlier in the course of the proceedings, the court then presided by Judge
Angel Parazo, granted bail to accused Agpanga Libnao, ruling that the
confiscation receipt signed by both accused (Exhibit C) is inadmissible
because they were not assisted by a counsel. Confronted with this same
issue, this court finds the postulate to rest on good authority and will

therefore reiterate its inadmissibility.

Since the prosecution had not presented any extrajudicial confession
extracted from both accused as evidence of their guilt, the court finds it
needless to discuss any answer given by both accused as a result of the
police interrogation while in their custody. By force of necessity,
therefore, the only issue to be resolved by the court is whether or
not, based on the prosecutions evidence, both accused can be
convicted.[22] (emphasis supplied)
Appellant then faults the trial court for appreciating and taking into
account the object and documentary evidence of the prosecution despite the
latters failure to formally offer them.Absent any formal offer, she argues that
they again must be deemed inadmissible.
The contention is untenable. Evidence not formally offered can be
considered by the court as long as they have been properly identified by
testimony duly recorded and they have themselves been incorporated in the
records of the case.[23] All the documentary and object evidence in this case
were properly identified, presented and marked as exhibits in court, including
the bricks of marijuana.[24] Even without their formal offer, therefore, the
prosecution can still establish the case because witnesses properly identified
those exhibits, and their testimonies are recorded. [25] Furthermore, appellants
counsel had cross-examined the prosecution witnesses who testified on the
exhibits.[26]
Appellant also assails the credibility of the testimonies of the prosecution
witnesses. She first cites the inconsistency between the testimony of SPO1
Marlon Gamotea, who said that it was SPO2 Antonio who opened the black
bag containing the marijuana; and that of SPO2 Antonio, who declared that
the bag was already open when he arrived at the Kabayan Center.She then
focuses on the police officers failure to remember the family name of the
driver of the tricycle where she allegedly rode, claiming that this is
improbable and contrary to human experience.
Again, appellants arguments lack merit. The alleged inconsistencies she
mentions refer only to minor details and not to material points regarding the
basic elements of the crime. They are inconsequential that they do not affect
the credibility of the witnesses nor detract from the established fact that
appellant and her co-accused were transporting marijuana. Testimonies of
witnesses need only corroborate each other on important and relevant details
concerning the principal occurrence.[27] The identity of the person who
opened the bag is clearly immaterial to the guilt of the appellant. Besides, it
is to be expected that the testimony of witnesses regarding the same
incident may be inconsistent in some aspects because different persons may
have different recollections of the same incident.[28]
Likewise, we find nothing improbable in the failure of the police officers
to note and remember the name of the tricycle driver for the reason that it
was unnecessary for them to do so. It was not shown that the driver was in
complicity with the appellant and her co-accused in the commission of the
crime.

To be sure, credence was properly accorded to the testimonies of

prosecution witnesses, who are law enforcers. When police officers have no
motive to testify falsely against the accused, courts are inclined to uphold
this presumption.[29] In this case, no evidence has been presented to suggest
any improper motive on the part of the police enforcers in arresting the
appellant.
Against the credible positive testimonies of the prosecution witnesses,
appellants defense of denial and alibi cannot stand. The defense of denial
and alibi has been invariably viewed by the courts with disfavor for it can just
as easily be concocted and is a common and standard defense ploy in most
cases involving violation of the Dangerous Drugs Act. [30] It has to be
substantiated by clear and convincing evidence. [31] The sole proof presented
in the lower court by the appellant to support her claim of denial and alibi
was a sworn statement, which was not even affirmed on the witness stand by
the affiant. Hence, we reject her defense.
IN VIEW WHEREOF, the instant appeal is DENIED. The decision of the
trial court finding appellant guilty beyond reasonable doubt of the offense of
violation of Article II, Section 4 of R.A. No. 6425 in relation to R.A. No. 7659,
and sentencing her to an imprisonment of reclusion perpetua and to pay a
fine of two million pesos is hereby AFFIRMED.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

FIRST DIVISION
G.R. No. L-28499 September 30, 1977
VICTORIAS
MILLING
COMPANY,
INC., petitioner,
vs.
ONG SU AND THE HONORABLE TIBURCIO S. EVALLE IN HIS CAPACITY
AS DIRECTOR OF PATENT'S,respondents.
Gonzalo W. Gonzalez, Agpalo & Associates for petitioner.
Salonga, Ordoez,
respondents.

Yap

&

Associates

and

Armando

G.

Gungon

for

FERNANDEZ, J.:
This is a petition to review the decision of the Director of Patents in Inter
Partes Case No. 304 entitled "Victorias Milling Company, Inc., petitioner,
verus, Ong Su" dated August 15, 1967 denying the petition to cancel the
certificate of registration issued by the philippines Patent Office on Jurie 20,
1961 in favor of Ong Su covering the tradenwk "VALENTINE" and design and
used on refined sugar. 1

The petitioner, Victorias Milling Company, Inc., a domestic corporation and

engaged in the manufacture and sale of refined granulated sugar is the
owner of the trademark "VICTORIAS" and d design registered in the
Philippines Patent Office on November 9, 1961.
The respondent Ong Su is engaged in the repacking and sale of refine sugar
and is the owner of the trademark "VALENTINE" and design registered in the
Philippines Patent Office on June 20, 1961.
On October 4, 1963, Victorias Mining Company, Inc. filed with the Philippine
Patent Office a petition to cancel the registration of the Ong Su trademark
"Valentine."
The petitioner allied that its tradermrk "Victorias" and diamond design has
distinctive of its sugar long before the respondent used its trademark; that
the registration of "Valentine" and design has caused and will cause great
damage to petitioner by reason of mistake, confusion, or deception among
the purchasers because it is similar to its "Victorias" trademark; that
registration was fradulently obtained by Ong Su and that "Valentine" faisely
suggests a connection with Saint Valentine or with an institution or belief
connected therewith. 2
In his answer to the petition the respondent averred that he is doing business
under the name and style "Valentine Packaging" and has registered the
trademark "Valentine" with a design for sugar and was issued Certificate of
Registration No. 8891 dated June 20, 1961; that the trademark "Victorias"
with diamond design and the trademark "Valentine" with a design are two
different marks; and that there is absolutely no likelihood of confusion,
mistake or deception to purchasers through the concurrent use of the
petitioner's mark "Victorias" with a diamond design and the respondents'
mark "Valentine" with a design in connection with sugar. 3
The petitioner's only witness, Pacifica V. Vijandre its vice-president and
stockholder, testified that Victorias Milling Company, Inc. has used since 1947
the trademark "Victorias" and diamond design with colors of red and black on
sacks of sugar having variable weight and size of 5 lbs., 10 lbs., 25 N., 50
lbs., and 100 lbs.; that the company had transactions on or sales of sugar
with local dealers such as Kim Kee, Chu Yu & Co., Limouan & Co., Luzon
Merchandising Corp. and ARCA that the average sale from 1958 to 1962 was
P30,000,000 and for the whole year of 1962 the sale was P46,000,000; that
he came to know that the trademark "Valentine" appeared in the market in
1962 through the report of his company's field agents; and that except for
the words "Valentine and Victorias", the design and wordings of the bags are
practically the same. 4
The respondent, Ong Su decWW that he adopted and began using his
trademark "Valentine" and design before and continuously after World War II
in the Philippines, particularly on paper bags used as containers for starch,
coffee and sugar; and that since January 1955 he continued using said
trademark on repacked sugar.
Arturo Chicane a witness for the respondent, testified that he was a
distribution agent of Ong Su that he travelled a lot but he river own across an
instance when the respondent Ong Su product was mistaken for the
petitioner's product; that he found the diamond design to be quite common

in combination with other words used as trademarks as a background or to

enhance their appearance, such as "DIAMOND" and design (Exhibit "54-A"),
"EAGLE" and design (Exhibit "53"), and "SUNRISE" and design (Exhibit "55"),
not belonging to the petitioner, which are also used on repacked sugar by
various sugar dealers; and that said designs and the color of the lines on
which drawn had not been regarded as trademarks but we ornamentation. 5

trademark jurisprudence that color alone, unless displayed in

a distinct or arbitrary design, does not function as a
trademark, inasmuch as here, or elsewhere, the colors black
and red are not so displayed by the petitioner, and are
primary colors commonly and freely used in the printing
business.

The Director of Patents denied the petition to cancel the certificate of

registration of the respondent Ong Su covering the trademark "Valentine"
and design because:

Finally, as regards the printing sequences or arrangement of

such legends as weight, contents, and manufacturer or
packer, I regard it as merely a matter pertaining to the
address of the goods' a matter involving unfair competition
over which the Patent Office has no jurisdiction. (See: Menzi
& Co., Inc, vs. Andres Co Dee. No. 59 dated Oct. 31, 1952, Dir.
of Patents.) And in the case of A. E. Staley Manufacturing Co.,
Inc. vs. Andres Co. v. Tan Tong, citing, Gillette Safety Razor
Go. v. Triangle Mechanical Laboratories, 31 USPQ 24; Aladdin
Mfg. Co. v. Mantle Lamp Co., 21 USPQ 58; and J. C. Eno (U.S.)
Limited v. Deshayas 29 USPQ 179), it was held that the
tribunals of the Philippines Patent Office have no jurisdiction
over questions of unfair competition. At most, the petitioner's
recourse is for it to seek relief in civil courts.

From the facts of record, I find nothing to sustain the petition.

There is no question that as to their respective literal
designation the trademarks are different. One is VALENTINE
while the other is VICTORIAS. Thus, as to sound and
connotation there is no dispute as to their dissimilarity.
However, from the evidence and pleadings, it appears that
petitioner is relying heavily on its diamond design, the color
scheme, and the printing sequence or arrangement of such
legends as weight, contents and manufacturer or packer.
I am of the firm belief that the diamond Portion of petitioner's
trademark hag not bolstered its cause. Common geometric
shapes such as circles, ovals, squares, triangles, diamonds,
and the like, when used as vehicles for display on word
marks, ordinarily are not retarded as indicia of origin for
goods to which the marks are applied, unless of course they
have acquired secondary meaning. I have scoured the
records completely to ascertain if the petitioner has
submitted satisfactory evidence in this regard, but I find
absolutely nothing to base a ruling that the triangle (sic)
design has acquired a secondary meaning with respect to its
sugar business.
It is the common practice for trademark owners to register
designs forming outline of their distinguishing mark, but
when the registrant of such design relies upon registration in
proceeding based upon likelihood of confusion of purchasers,
he assumes the burden of showing that the design portion of
the mark has been so used that purchasers recognize the
design, standing alone, as indicating goods emanating from
the registrant. Bausch & Lomb Optical Co., v. Overseas
Finance & Trading Co., Inc. (ComrPats) 112 USPQ 6.
Considering herein that the petitioner failed to establish that
diamond design component of its mark has acquired a
secondary meaning and that the literal portion of the marks
have no similarity, there is no reasonable likelihood of
purchaser confusion resulting from registrant's use of
VALENTINE within a diamond and petitioner's use of
VICTORIAS within a diamond.
As regards the colors black and red used, it is fundamental in

The allegations that the registration of VALENTINE was

obtained fraudulently; that it falsely suggests a connection
with St. Valentine; and that it is merely descriptive or
deceptively misdescriptive of sugar have no basis in law and
fact. 6
The petitioner submits that the Director of Patents committed the following
errors:
I
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING
THAT PETITIONER'S REGISTERED DIAMOND DESIGN IS NOT
AN INDEX OF ORIGIN.
II
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING
THAT PETITIONER IS REQUIRED TO ESTABLISH THAT ITS
DIAMOND DESIGN HAS ACQUIRED A SECONDARY MEANING.
III
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING
PETITIONER'S DIAMOND DESIGN HAS NOT ACQUIRED A
SECONDARY MEANING.
IV
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING
THAT THE DETAILS OF PETITIONER'S DESIGN THAT HAVE
BEEN IMITATED BY RESPONDENT ONG SU MERELY PERTAIN TO
THE'DRESS OF THE GOODS.'

V
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN
CONFINING HIS COMPARISON OF PETITIONER'S AND
RESPONDENT'S RESPECTIVE TRADEMARKS TO ONE SOLE
ITEM OF THEIR DESIGN, IGNORING THE COMPLETE LABELS AS
ACTUALLY USED IN TRADE AND SEEN BY CONSUMERS.
VI
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN TAKING
THE POSITION THAT IN CASES OF TRADEMARK CANCELLATION
INVOLVING, AMONG OTHERS, OBVIOUS ACTS OF UNFAIR
COMPETITION,
HE
NEED
NOT
TAKE
ANY
ACTION
WHATSOEVER, SINCE HE SUPPOSEDLY HAS NO JURISDICTION
IN THE PREMISES.
VII
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING
THAT PETITIONER'S REGISTERED COLOR DESIGN DOES NOT
FUNCTION AS A TRADEMARK.
VIII
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING
THAT BECAUSE THE LITERAL PORTIONS OF THE RESPECTIVE
TRADEMARKS IN QUESTION, NAMELY, THE RESPECTIVE
NAMES 'VICTORIAS' AND 'VALENTINE', HAVE NO SIMILARITY,
THERE IS NO REASONABLE LIKELIHOOD OF PURCHASER
CONFUSION.
IX
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN
ASSUMING THAT PETITIONER, OR THE OWNER OF ANY
IMITATED OR INFRINGED TRADEMARK FOR THAT MATTER,
MUST ESTABLISH ACTUAL PURCHASER CONFUSION.
X
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN
PREVENTING THE TESTIMONIES OF RESPONDENT ONG SU
AND WITNESS ERNESTO DURAN AS REBUTTAL WITNESSES
FOR PETITIONER, SAID RULINGS OF RESPONDENT DIRECTOR
CONSTITUTING REVERSIBLE ERROR AND THE DENIAL OF
PROCEDURAL DUE PROCESS.
XI
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING
THAT THE REGISTRATION OF THE VALENTINE TRADEMARK BY
RESPONDENT ONG SU WAS NOT PRUDULENTLY OBTAINED.
XII

THE RESPONDENT DIRECTOR OF PATENTS, ACTING TfIROUGH

HEARING OFFICER AMANDO MARQUEZ, ERRED IN ADMITTING
RESPONDENT ONG SU'S EXHIBITS PERTAINING TO ONE
'MARIANO ANG SAID NAME NOT HAVING BEEN CLEARLY
ESTABLISHED AS AN ALIAS, ALHTHOUGH ADMITTEDLY
UNAUTHORIZED, OF RESPONDENT ONG SU. 7
The contention of petitioner that the diamond design in its trademark is an
index of origin has no merit. The petitioner has not shown that the design
portion of the mark has been so used that purchasers recognize the design,
standing alone, as indicating goods coming from the registrant. As correctly
stated by the Director of Patents, common geometric shapes such as
diamonds ordinarily are not regarded as indicia of origin for goods to which
the remarks are applied unless they have acquired a secondary meaning.
And there is no evidence that the diamond design in the trademark of the
petitioner has acquired a secondary meaning with respect to its sugar
business. The word "Victorias" is what Identifies the sugar contained in the
bag as the product of the petitioner. Indeed, the petitioner has advertised its
sugar in bags marked "Victorias" with oval, hexagor. and other designs.
The evidence is that Ong Su has been using his trademark since prior to the
last World War and he obtained the registration thereof on June 20, 1961.
Vijandre declared that the petitioner started to use its trademark only in
1947. Said trademark was registered on November 9, 1961. It cannot be said,
therefore, that the respondent Ong Su imitated the trademark of the
petitioner.
The petitioner avers that purchasers of sugar are likely to confuse petitioner's
"Victorias" trademark and respondent Ong Su's "Valentine" trademark
because of the following similarities:
1. Both trademarks have the same diamond design with the
slight modification that the lines of the "VALENTINE" diamond
design are a little protruding at the ends.
2. The lines forming the diamond design in both trademarks
consist of two lines, namely, the outer portion and the inner
portion.
3. The outer portion of the diamond design of both
trademarks has the color black as shown in the specimens
(Exhibits "A" and "B"). The, inner line of the diamond design
in both trademarks has the color red.
4. In both trade marks, the word "PURE" in black print
appears inside of the upper portion of the diamond design.
5. In both trade marks, the word "VICTORIAS" and the word
VALENTINE' placed within the diamond design are
conspicuously colored red.
6. The letter "V" in Victorias and the letter "V" in Valentine are
Identically placed.
7. The word "VICTORIAS" and the word "VALENTINE" are

Identically arranged, the same containing the same number

of letters.
8. Immediately below the words "VICTORIAS"
"VALENTINE"appears the words "REFINED SUGAR".

and

9. underneath the diamond design in both trademarks are the

words "FINE GRANULATED" and below said phrase are the
words 'CANE SUGAR'with a small diamond design.
10. Both, trade marks are used on refines sugar.
11. The words "PURE," "VALENTINE," "VICTORIAS," "FINE
GRANULATED" and "CANE SUGAR" in both trade marks are
same has arranged and printed.9
The respondent Ong Su maintains that the alleged are minor for the following
reason:
Appellant attempts to show the possibility or likelihood of
purchaser confusion by pointing out alleged similarities in the
packages in question, e.g. "Pure Refined Sugar" appearing in
both marks in question. It should be noted, however, that
these words are merely descriptive commonly applied to the
goods, namely, sugar, and cannot be exclusively
appropriated by the petitioner. The other alleged similarities
pointed to by appellant that the lines forming the diamond
design in both trademarks consist of two lines, the outer
portion and the inner portion; that the diamond design in
both tradeniarks has the color black and the inner line of both
designs has the red color; that the diamond design as used
by the petitioner and by respondent are of the same size;
that the letter 'V' in Victorias and the letter "V" in "Valentine"
are the same size; and that the letter 'V' in VICTORIAS and
the letter "V" in the Valentine package are Identically pIaced
in the diamond; and that the word "Victorias" and the word
"VALENTINE" are Identically arranged within the diamond
are, we submit with respect, minor and insignificant for the
purpose of this petition even if the observations of appellant
are correct.10
It seems clear that the words "Valentine" and "Victorias" and the names and
places of business of Victorias Milling Company, Inc. and Ong Su are the
dominant features of the trademarks in question. The petitioner has not
established such a substantial similarity between the two trademarks in
question as to warrant the cancellation of the trademark 'Valentine'of the
respondent Su. The Director of Patents correctly ruled that he has no
jurisdiction over the issue of unfair competition. Under Section 27 of the
Trade Mark Law, Republic Act No. 166, after actions for unfair competition
shall be brought before the proper Court of First Instance.
The refusal of the Director of Patents to allow respondent Ong Su and witness
Emesto Duran to testify on rebuttal is not a reversible effort.
The only'purpose of the petitioner in proposing to call Ong Su as a witness on

rebuttal is to ask the latter if he had judicial authority to use the alias
'Mariano'. Ang It appears, however, that the counsel of petitioner had already
extensively cross-examined Ong Su as to a citizenship, alien certificate of
registration and the other name Mariano Ang. It seems immaterial whether or
not Ong Su has judicial authority to use Mariano Ang as an alias. There is
evidence that even before the last World War, the trademark 'Valentine' and
design had been used under the name of either Ong Su or Mariano Ang.
The petitioner sought to present Emesto T. Duran as rebuttal witness to prove
that there was a confusion among consumers or buyers of sugar caused by
the alleged sorority of the "Victorias" and "Valentine" trademarks. The
presentation of Emesto T. Duran as rebuttal witness was objected to by
counsel of the respondent on the ground that the evidence sought to be
elicited from Duran did not directly contradict the testimony of witness
Chicane The objection was sustained by the hearing officer whose ruling was
subsequently confer by the Director of Patents. Counsel for the petitioner
made the following formal offer of proof:
ATTY. GONZALEZ:
Your Honor please, in view of the ruling of the Honorable
Director your Honor please on the admissibility of certain
items of evidence, which resolution dated February 21, 1966
was received by undersigned counsel for the petitioner on
February 22, 1966, said resolution was setting the hearing of
this case for this morning, I wish to state, I wish to register
my exception, my respectful exception to said resolution. In
view of the resolution not permitting me to present Mr.
Ernesto Duran, my proposed witness whom I attempted to
present at the last hearing, I wish to offer as proof the
following items ol' the testimony of witness Duran. Now as he
would go shopping with his parents and that sometime in the
month of February 1963 he went to the Aranque market, and
while he was buying groceries he saw a shelf with five (5) lbs.
bag of sugar with the bag and package he thought was
VICTORIAS. Witness Duran will further testify that he went to
the shelf and pointed to the bag of sugar and hesaid Isang
support ng Victorias Ang. That the sugar was taken by the
shopkeeper and when he went home he found out that the
sugar was marked VALENTINE. lie went on again on another
time later and saw that the shelf was still filled with five (5)
pounds (lbs,) bag VALENTINE sugar. The shelf also has bags
of VICTORIAS sugar side by side with VALENTINE sugar, that
the package of VALENTINE looked so much alike will
VICTORIAS sugar that he was misled into pointing to
VALENTINE and asked for VICTORIAS.
HEARING OFFICER:
What is that, is that supposed to be the testimony of witness
Duran?
ATTY. GONZALEZ:
Yes, your Honor, I am offering as proof of what the witness

Duran would have testified. Since this office has ruled that I
cannot present him an offer of proof is being made for
purposes of putting on record what he would have testified to
on record in accordance with the Rules of Evidence. 11
Having made the foregoing formal offer of proof, the petitioner cannot
complain that it was denied procedural due process.
The proposed testimony of Emesto T. Duran that in February 1963 he went to
Arangue market and bought one bag of sugar which he thought was
"Victorias" and when he went home he found out that the sugar was marked
"Valentine" is not sufficient evidence that the two trademarks are so similar
that buyers of sugar are confused. The words "Victorias" and "Valentine" are
not similar in spelling and do not have a similar sound when pronounced.
Even the diamond designs are different. The diamond design of the
trademark "Valentine" has protruding fines at the comers. Even an illiterate
person can see the difference between the two diamond designs.
There is no evidence that the respondent Ong Su had obtained the
registration of his trademark "Valentine" and design by means of fraud. The
said trademark was registered in the Philippines Patent Office before the
petitioner registered its trademark.
The record and evidence show that Ong Su had also used in his business the
name Mariano Ang. Hence the licenses and permits in the name of Ong Su
and/or Mariano Ang were correctly admitted as evidence.
WHEREFORE the decision of the Director of Patents sought to be reviewed is
hereby affirmed, without pronouncement as to costs.

CARPIO, J.:
The Case

Before the Court is a petition for review [1] assailing the 23 June 2000
Decision[2] and the 7 November 2001 Resolution [3] of the Court of
Appeals in CA-G.R. CR No. 21450. The Court of Appeals affirmed the
30 September 1997 Decision[4] of the Regional Trial Court of Manila,
Branch 50 (trial court) in Criminal Cases Nos. 94-135055-56. The trial
court found Coverdale Abarquez y Evangelista (Abarquez) guilty
beyond reasonable doubt as an accomplice in the crime of homicide
in Criminal Case No. 94-135055.

SO ORDERED.
THIRD DIVISION
COVERDALE ABARQUEZ, G.R. No. 150762
y EVANGELISTA,
Petitioner,
Present:
Quisumbing, J.,
Chairman,
Carpio,
- versus - Carpio Morales, and
Tinga, JJ.
Promulgated:
THE PEOPLE OF THE PHILIPPINES,
Respondent. January 20, 2006
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION

The Charge

The

prosecution

charged

Abarquez

with

the

crimes

of

homicide and attempted homicide in two Informations,[5] as follows:

Criminal Case No. 94-135055

The undersigned accuses COVERDALE ABARQUEZ Y
EVANGELISTA of the crime of HOMICIDE, committed as
follows:
That on or about November 21, 1993, in the
City of Manila, Philippines, the said accused conspiring
and confederating with one ALBERTO ALMOJUELA Y
VILLANUEVA, who has already been charged for the
same offense before the Regional Trial Court of Manila,
under Crim. Case No. 93-129891 and mutually helping

each other, did then and there willfully, unlawfully and

feloniously with intent to kill, attack, assault and use
personal violence upon one RICARDO QUEJONG Y
BELLO, by then and there stabbing him twice with a
bladed weapon and hitting him with a gun at the back,
thereby inflicting upon the latter mortal wounds which
were the direct and immediate cause of his death
thereafter.
CONTRARY TO LAW.[6]

Ricardo Quejong (Quejong) and their friends were in the house of

one Boyet at 3342 San Jose St., Sta. Mesa, Manila. They were
drinking liquor in celebration of the birthday of Boyets son. About
7:45 p.m., Paz and Quejong decided to go home. Boyet Tong,

Criminal Case No. 94-135056

Abarquezs son Bardie and Sonito Masula (Masula) joined Paz and

The undersigned accuses COVERDALE ABARQUEZ Y

EVANGELISTA of the crime of ATTEMPTED HOMICIDE,
committed as follows:

Quejong. They proceeded towards the exit of San Jose St.

That on or about November 21, 1993, in the City of

Manila, Philippines, the said accused conspiring and
confederating with one ALBERTO ALMOJUELA Y
VILLANUEVA, who has already been charged for the
same offense before the Regional Trial Court of Manila
under Crim. Case No. 93-129892 and mutually helping
each other, with intent to kill, did then and there
wilfully, unlawfully and feloniously commence the
commission of the crime of homicide directly by overt
acts, to wit: by then and there holding one JOSE
BUENJIJO PAZ Y UMALI and stabbing him with a bladed
weapon, hitting him on the left arm, but the said
accused did not perform all the acts of execution
which should have produced the crime of homicide as
a consequence, by reason of causes other than his
own spontaneous desistance, that is, the injury
inflicted upon said JOSE BUENJIJO PAZ Y UMALI is only
slight and not fatal.

Meanwhile, about six or seven meters away from Boyets

house, Alberto Almojuela also known as Bitoy (Almojuela), a certain
Ising and Abarquez also known as Dale, were likewise drinking liquor
in front of Almojuelas house. As the group of Paz was passing
towards the main road, Almojuela and his companions blocked their
path.

Almojuela asked Paz, Are you brave? Paz replied, Why?

CONTRARY TO LAW.[7]
Almojuela got angry and attacked Paz with a knife. Paz parried the
attack with his left arm but sustained an injury. Abarquez held Paz
Abarquez entered a plea of not guilty to both charges. The cases
on both shoulders while Bardie pacified Almojuela. Paz asked
were tried jointly.
Abarquez, What is our atraso, we were going home, why did you
block

our

way?

Abarquez

The Version of the Prosecution

Tumigil ka na, tumigil ka na.
On 21 November 1993 at 2:00 p.m., Jose Buenjijo Paz [8] (Paz),

answered, Masyado

kang

matapang.

Almojuela then confronted Quejong and they had an altercation,

About 9:15 p.m., while SPO1 Danilo Vidad (SPO1 Vidad) was at the
followed by a scuffle. Paz tried to get away from Abarquez who
WPD Homicide Division, his station received a call from the UST
continued restraining him. Upon seeing Almojuela and Quejong fall
Hospital informing them of the death of Quejong. SPO1 Vidad and
on the ground, Paz struggled to free himself from Abarquez. Paz
PO3 Ed Co went to the UST Hospital morgue and investigated the
approached Quejong and found him already bloodied. It turned out
incident.

They

learned

that

Almojuela,

assisted

by

Abarquez,

the Almojuela stabbed Quejong with a knife. Paz tried to pull up

stabbed Quejong. Upon the execution of sworn statements by Paz
Quejong but failed. Paz left Quejong and ran instead towards the
and Masula, SPO1 Vidad booked Almojuela and Abarquez for
exit of San Jose St. to ask for help. While Paz was running away, he
homicide and frustrated homicide and prepared the referral letter to
heard Abarquez shout, You left your companion already wounded!
the inquest prosecutor.
When Paz and his companions returned, they found Quejong

Abarquez voluntarily appeared at the police station. Almojuela

still on the ground. Almojuela and Abarquez were still in the area.

voluntarily surrendered to one SPO4 Soriano at Police Station No. 10

Paz and his companions brought Quejong to the UST Hospital. They

and was turned over to the WPD Homicide Division.

next proceeded to Police Precinct No. 4 to report the incident.

Dr. Antonio Rebosa[9] (Dr. Rebosa), a medico-legal consultant at UST
However, there was nobody in the precinct. With Kagawad Villanio
Hospital, conducted the post-mortem examination and autopsy on
Usorio, Paz went to the WPD General Headquarters to report the
Quejong. Dr. Rebosa reported that Quejong sustained two stab
incident. At the WPD General Headquarters, they learned that
wounds and suffered from massive hemorrhage due to penetrating
Quejong died at the UST Hospital. Paz then had his injury treated by
stab wounds to the heart and left lung. According to Dr. Rebosa, a
Dr. Vic Managuelod at Jose Reyes Memorial Hospital. The medicosharp instrument probably caused the wound. Dr. Rebosa also
legal certificate showed that Paz sustained a 3-cm. lacerated wound
reported that Quejong sustained abrasions and contusions on the
on his left forearm.

right upper body, the wrist and on the lower extremities.

Abarquez met the Chief Tanod of the barangay and two kagawads.
Kagawad Rudy Lego (Lego) advised him to report the incident to the

The Version of the Defense

police. They all proceeded to Precinct No. 4 where Lego reported the

Abarquez countered that on 21 November 1993, he was in his

incident to the desk officer. The desk officer told them that a person

residence at 3363 San Jose St., Sta. Mesa, Manila. About 7:30 p.m.,

had been stabbed. When Abarquez reached their house, he saw

Almojuelas wife informed him that the group of Paz was challenging

policemen and media men with their barangay chairman. He

Almojuela to a fistfight. Abarquez, being a barangay kagawad,

informed them that he had just reported the incident. Upon the

proceeded to Almojuelas house. Almojuelas house was about twenty

request of SPO1 Vidad, Abarquez then went to the police station to

meters away from Abarquezs house. When he arrived at Almojuelas

shed light on the incident.

house, Abarquez saw Almojuela on the ground being strangled by

Quejong. Paz was holding Almojuelas waist and boxing him at the
stomach. Masula was near Almojuelas head holding a piece of stone
as if waiting for a chance to hit him. Abarquez shouted at the group
to stop. The group did not heed Abarquez, forcing him to fire a
warning shot into the air. Still, the group did not heed Abarquez who
then fired a second warning shot. Paz, Quejong, and Masula
scampered away.

Almojuela told Abarquez that he was merely trying to stop

the group of Paz from smoking marijuana. Almojuela then went
inside his house while Abarquez went home. On his way home,

Almojuela testified that he was inside his house when his daughter
informed him that there was marijuana smoke coming to their
window. He went outside to look for the source of the smoke and
saw Quejong, Paz, and Masula smoking marijuana. Almojuela asked
the group to move away as there were children inside the house. He
was on his way back to the house when Quejong tried to strangle
him. Later, Almojuela heard a gunshot. He also heard Abarquez
shouting, Tumigil na kayo. Quejong, Masula, and Paz ran away.

Winfred Evangelista[10] (Evangelista) testified that he was resting in

front of his house when he heard a commotion. He noticed that Paz

and

Quejong

were

quarreling.

Evangelista

saw

Paz

kicking

Almojuela. Abarquez arrived to break up the fight but he was told

Abarquez appealed the trial courts Decision before the Court of

not to interfere. Abarquez was forced to fire a warning shot and the

Appeals.

persons involved in the commotion ran away.

In its Decision[13] of 23 June 2000, the Court of Appeals affirmed the

The Ruling of the Trial Court

trial courts Decision. The Court of Appeals sustained the trial court
in giving more credence to the testimony of Paz. The Court of

In its Decision

[11]

dated 30 September 1997, the trial court found

Appeals held that the prosecution was able to establish that

Abarquez guilty as an accomplice in the crime of homicide. The trial

Abarquez aided Almojuela in fatally stabbing Quejong. The Court of
court held that the prosecution failed to prove that Abarquez was a
Appeals rejected Abarquezs allegation that he was merely at the
co-conspirator of Almojuela in the killing of Quejong. Hence,
crime scene to pacify the quarreling parties.
Abarquez could not be convicted as a principal in the crime of
homicide. However, the trial court ruled that Abarquez, in holding
and restraining Paz, prevented the latter from helping Quejong and
allowed Almojuela to pursue his criminal act without resistance.

In its 7 November 2001 Resolution,[14] the Court of Appeals denied

Abarquezs motion for reconsideration.

Hence, the petition before this Court.

The dispositive portion of the trial courts Decision reads:

WHEREFORE, in Criminal Case No. 94-135055,
this Court finds the accused, Coverdale Abarquez,
guilty beyond reasonable doubt of the crime of
homicide only as accomplice and hereby sentences
him to suffer an indeterminate penalty ranging from
six (6) years of prision correccional to ten (10) years
of prision mayor. In Criminal Case No. 94-135056, the
accused is hereby acquitted.

The Issues

The issues[15] Abarquez raises before the Court may be summarized

as follows:

With costs de oficio.

1. Whether the prosecution was able to establish the

guilt of the accused beyond reasonable doubt;

SO ORDERED.[12]

2. Whether the trial court and the Court of Appeals

erred in giving more credence to the testimony of

the prosecution witnesses.

persons who, not being included in Article 17, cooperate in the

execution of the offense by previous or simultaneous acts.[17]

Abarquez alleges that the prosecutions evidence does not satisfy

Two elements must concur before a person becomes liable as an
the test of moral certainty and is not sufficient to support his
accomplice:

(1)

community

of

design,

which

means

that

the

conviction as an accomplice. He further alleges that there was a

accomplice knows of, and concurs with, the criminal design of the
misapprehension of facts and that the trial court and the Court of
principal by direct participation; and (2) the performance by the
Appeals reached their conclusion based entirely on speculation,
accomplice

of

previous

or

simultaneous

acts

that

are

not

surmises and conjectures. Abarquez also assails the credibility of

indispensable to the commission of the crime. [18] Mere commission of
the witnesses against him.
an act, which aids the perpetrator, is not enough.[19] Thus:

The Ruling of This Court

The petition is meritorious.

The cooperation that the law punishes is the

assistance knowingly rendered, which cannot exist
without the previous cognizance of the criminal act
intended to be executed. It is therefore required in
order to be liable as an accomplice, that the accused
must unite with the criminal design of the principal by
direct participation.[20]

The rule is that the trial court is in the best position to determine
Indeed, in one case, the Court ruled that the mere presence of the
the value and weight of the testimony of a witness. The exception is
accused at the crime scene cannot be interpreted to mean that he
if the trial court failed to consider certain facts of substance and
committed the crime charged.[21]
value, which if considered, might affect the result of the case. [16] This
case is an exception to the rule.

Here, in convicting Abarquez, the trial court and the Court of

Appeals relied mainly on the testimony of Paz. Paz testified that he

Concurrence in Criminal Design

was held by Abarquez on the shoulders, thus preventing him from
Article 18 of the Revised Penal Code defines accomplices as those

helping Quejong who was grappling with Almojuela. Paz testified:

q.
a.

And what happened in the exchange of

words or altercations between Bitoy and
Ricardo Quejong?
They grappled with each other, sir.

Dale Abarquez reprimanded you? (sic)

a. You Jose is too brave, sir. (sic)[22]
xxx xxx xxx
q.

q.
a.
q.
a.

When Bitoy and Ricardo grappled with

each other, what did you do, if any?
I was intending to help Ricky but I was
held back by Dale, sir.
And how this Dale hold you?
He held my two shoulders, sir.

PROSECUTOR F. G. SUPNET:
I would like to make it of record demonstrated
being held by the accused holding both
shoulders, your Honor.
q.
Now, when this Dale Abarquez held both
on your shoulders, what happened next, if any?
a.
He got angry scolding us. While scolding
me the two
who were grappling each other walking away,
sir. (sic)
q.

a.
q.
a.

q.
a.
q.
a.
q.

Now, you said Bitoy and Ricky were

moving, what happened in the course of
grappling, if any?
You testified that Ricky and Bitoy were
grappling each other, what happened in the
course of grappling? (sic)
They fell to the ground, sir.
After that what happened next, if any?
When I saw them fall I struggle and I was
able to release from the hold of Dale and I
approach the two. I saw Ricky blooded so I was
trying to pull him, sir. (sic)
You said you saw Ricky blooded, why was
he blooded? (sic)
He was stabbed by Bitoy, sir.
And did you see what instrument did
Bitoy used in stabbing Ricky or Ricardo? (sic)
It was a knife, sir. (Witness indicating a
length about 6 inches including the handle).
Now, you said also that while the two
were grappling while you were trying to free
yourself from the hold Dale Abarquez,
Pinagalitan kayo, in what way or manner did

a.
q.
a.

You said you were first attacked by Bitoy,

is that correct?
Yes, sir.
After Bitoy pacified Bardy Abarquez, he
went after Ricky Quejong, is it not?[23]
They were just arguing, sir.

[q.] And it was during that time when you were held in
both shoulders by the accused [C]overdale
Abarquez?
a.
Yes, sir.
q.
and that Coverdale Abarquez was infront of you,
is it not?
a.
Yes, sir on my side.
q.
a.
q.

And he was holding your shoulder to

pacify you and Bitoy from further quarrelling
you, is it not?
That is not the way of pacifying, sir.
How can you demonstrate how you were
held on the shoulder by Abarquez?

ATTY. GASCON:
Make I make it of record your Honor that the
interpreter act as the witness while the witness
act as the accused demonstrating holding both
hands of interpreter preventing the witness
and saying Joey tumigil ka na, joey tumigil ka
na.
COURT:
q.

How many times?

a.
Twice, Your Honor.
ATTY. GASCON:
The accused told you Joey tumigil ka na, Joey
tumigil ka na because you were trying to attack
Bitoy, is it not?
a.

How can I be charged, he was the one

holding the knife, sir. (sic)

q. So what was the reason why the accused restrained
you and told you Joey tumigal ka na, Joey
tumigil ka na. What would be the reason?

a.

While I was just talking to Bitoy, when he told

me to stop.
COURT:
Does the Court get from you that you are trying
to explain to Bitoy when the accused tried to
hold you and prevent you?

restraining him, Abarquez was scolding or reprimanding him and

telling him to stop. It was not shown that Abarquez was stopping
Paz from helping Almojuela. It is more likely that Abarquez was
trying to stop Paz from joining the fight. Abarquezs act of trying to

a.
q.

a.

Yes, sir.
That is why the reason you concluded
that the accused is not pacifying you but to
stop you from helping the victim?
Yes, sir.

xxx xxx xxx

The
only
word
that
the
accused
[C]overdale Abarquez uttered was Joey, tumigil
ka na, Joey tumigil ka na, is it not?
a. He uttered that you are MATAPANG, Joey tumigil ka
na, Joey tumigil ka na.[24]
q.

Pazs testimony does not show that Abarquez concurred with

stop Paz does not translate to assistance to Almojuela.

In People v. Fabros, [25] the Court explained:

To be deemed an accomplice, one needs to
have had both knowledge of and participation in the
criminal act. In other words, the principal and the
accomplice must have acted in conjunction and
directed their efforts to the same end. Thus, it is
essential that both were united in their criminal
design.
xxx. The mere fact that the (accused) had prior
knowledge of the (principals) criminal design did not
automatically
make
him
an
accomplice.
This
circumstance, by itself, did not show his concurrence
in the principals criminal intent.

Almojuelas criminal design. Tumigil literally means stop. Clearly,

Paz stated that Abarquez did not do anything to stop
Abarquez was trying to stop Paz from joining the fray, not from
Almojuela. However, Paz testified that Abarquezs son Bardie, who
helping Quejong. Paz claims that he was only trying to talk to
was one of Pazs companions, was the one trying to pacify Almojuela.
Almojuela. However, Paz could not have been merely talking to
The trial court in its factual findings confirmed this when it stated
Almojuela, as he tried to portray, because Almojuela was already
that while Abarquez was holding Paz, his son Bardie was pacifying
grappling with Quejong at that time. Paz interpreted Abarquezs
Almojuela.[26]
action as an attempt to prevent him from helping Quejong. His
interpretation was adopted by the trial court and sustained by the
Court of Appeals. Yet, in his testimony, Paz admitted that while

The prosecution argues that Abarquez was remiss in his

duties as a barangay kagawad in not extending assistance to the

then wounded Quejong. This, however, does not necessarily show

concurrence

in

Almojuelas

criminal

act.

When

Paz

ran

away,

other consistent with his guilt, for then the evidence

does not fulfill the test of moral certainty, and does
not suffice to produce a conviction. Briefly stated, the
needed quantum of proof to convict the accused of the
crime charged is found lacking.[29]

Abarquez shouted at him that he left his wounded companion.

Apparently, Abarquez was not aware of the extent of Quejongs
injury and he expected Paz to look after his own companion.

When there is doubt on the guilt of an accused, the doubt

should be resolved in his favor. Thus:
Every person accused has the right to be
presumed innocent until the contrary is proven
beyond reasonable doubt. The presumption of
innocence stands as a fundamental principle of both
constitutional and criminal law. Thus, the prosecution
has the burden of proving every single fact
establishing guilt. Every vestige of doubt having a
rational basis must be removed. The defense of the
accused, even if weak, is no reason to convict. Within
this framework, the prosecution must prove its case
beyond any hint of uncertainty. The defense need not
even speak at all. The presumption of innocence is
more than sufficient.[27]

We apply in this case the equipoise rule. Where the evidence

on an issue of fact is in issue or there is doubt on which side the
evidence preponderates, the party having the burden of proof loses.
[28]

Hence:
xxx The equipoise rule finds application if, as in this
case, the inculpatory facts and circumstances are
capable of two or more explanations, one of which is
consistent with the innocence of the accused and the

WHEREFORE, we GRANT the petition. We SET ASIDE the 23

June 2000 Decision and 7 November 2001 Resolution of the Court of
Appeals in CA-G.R. CR No. 21450, which affirmed the 30 September
1997 Decision of the Regional Trial Court of Manila, Branch 50 in
Criminal Cases Nos. 94-135055-56. We ACQUIT Coverdale Abarquez y
Evangelista as an accomplice in the crime of homicide in Criminal
Case No. 94-135055. No pronouncement as to costs.

SO ORDERED.
FIRST DIVISION
HEIRS OF VICENTE REYES, represented by
DOMINADOR REYES; HEIRS OF APOLONIA REYES
SAMSON, represented by MILAGROS FRANCISCO;
MONICO REYES PALMARIO; FELICISIMA REYES
CHING-CUANCO; JULIA REYES; LEONORA REYES;
EDILBERTA REYES; MAXIMA REYES; BIENVENIDO
REYES; HEIRS OF MANUEL REYES SAMSON,
represented
by
ZENADIA
FRILLES;
MARIOG.R. No. 157959
SAMSON; GLISERIO SAMSON; CRISPIN SAMSON;
NUMERIANO SAMSON; FERMENIA SAMSON, HEIRS Present:
OF MARTIN SAMSON, represented by MA. CLARA PUNO, C.J., Chairperson,
SAMSON; ELPIDIO SAMSON; RICARDO SAMSON; SANDOVAL-GUTIERREZ,
VICTORINO SAMSON; EMILIANO SAMSON, JR.; CORONA,
CARMELITA SAMSON VERGARA; SHEILA ANN AZCUNA, and
SAMSON; FRANCISCO SAMSON AND MAGNO GARCIA, JJ.
SARREAL, represented by the substituted heirs,
AIDA SARREAL and the HEIRS OF CELERINA Promulgated:
SARREAL KAMANTIGUE, represented by LAURA S.
KAMANTIGUE,
March 28, 2007
Petitioners,

- versus subject to the condition, among others, that upon the expiration of such
THE HONORABLE COURT OF APPEALS, ANATALIA
REYES AND GLORIA REYES-PAULINO,
Respondents.
X----------------------------------------------------------------------------------------X

term, the ownership of all the improvements found within the leased property
would

automatically

be

transferred

to

the

lessor

without

need

for

reimbursement.[6] The contract was thumbmarked by Eustaquia as the lessor,

DECISION
with Magno Sarreal likewise affixing his signature to the instrument to
AZCUNA, J.:

indicate his marital consent to the transaction.[7]

On January 24, 1979, Eustaquia purportedly sold the property to

This is a petition for review on certiorari[1] assailing the Decision[2] and

private respondents Anatalia Reyes and Gloria Reyes-Paulino in a notarized
Resolution[3] of the Court of Appeals (CA) dated February 10, 2003 and April
document entitled Patuluyang Pagbibili ng Lupa (Deed of Absolute Sale).[8] In
28, 2003, respectively, in CA-G.R. CV No. 71807.
the second paragraph of the deed, Eustaquia expressly stated that the
property was paraphernal or exclusive in character and did not belong to the
The case stemmed from the action for partition and accounting filed by the
conjugal partnership because it formed part of her inheritance. Accordingly, it
children of the siblings of the late Eustaquia Reyes [4] against Magno Sarreal,
was only her signature and thumbmark which appeared on the deed. Anatalia
Anatalia Reyes and Gloria Reyes-Paulino, Eustaquias husband and nieces,
and Gloria subsequently divided the property between themselves and
respectively, in relation to a parcel of land situated in Balintawak, Quezon
registered their respective shares under their own names. [9]
City, with an area of Seven Thousand Four Hundred Eighty-Four (7,484)
square meters (the property).
Eustaquia died of natural causes on May 7, 1987.[10]
The property was originally registered in the name of Eustaquia under
On May 17, 1993, the children of the siblings of Eustaquia who
Transfer Certificate of Title (TCT) No. 26031 issued by the Registry of Deeds of
predeceased her filed a complaint with the Regional Trial Court (RTC)
Quezon City and was inherited by her prior to her marriage to Magno Sarreal.
of Quezon City for partition and accounting with receivership against Magno
Sarreal and private respondents herein, Anatalia Reyes and Gloria ReyesOn June 5, 1963, Eustaquia leased a portion of the property to ACME
Paulino. They allegedly just discovered that the property was clandestinely,
Abrasive Manufacturing Corporation (ACME) for a period of twenty (20) years
fraudulently and unlawfully divided between private respondents who caused
commencing onJune 1, 1963 until June 1, 1983.[5] The lease contract provided
its registration in their names under TCT Nos. 272976 and 272977 by means
that ACME as the lessee shall have the right to build, construct and place
of simulated or fictitious and unlawful conveyances. They contended that, not
additional improvements within the property during the term of the lease

having waived or repudiated their lawful shares and participation in the

the Philippines Office of Legal Aid, filed a motion to be appointed as

property, they are co-owners of the resulting subdivision lots with private

guardian ad

respondents, the same being held in trust by the latter for the co-

order[16] dated August 26, 1994. Thereafter, the Office of Legal Aid filed, on

ownership. Similarly, the rents from the market stalls on the property belong

his behalf, the answer[17] dated September 5, 1994 which now denied for lack

not only to private respondents but also to them and private respondents

of knowledge the personal circumstances of the complainants, their

should be made to account for all rents received from the date of Eustaquias

relationship to their respective progenitors and to Eustaquia, and the

death. They further prayed that the property be placed under receivership

relationship of complainants and private respondents to each other and of

pending the resolution of the case.[11]

private respondents to Eustaquia. The paraphernal character of the property

Private respondents filed a joint answer[12] to the complaint claiming,

among others, that 1) the complaint does not state any cause of action; 2)

litem of

Magno,

which

the

RTC

granted

in

an

was likewise denied, with Magno now claiming that the property was part of
the conjugal partnership from the very beginning.

they are the owners in fee simple of the property under TCT Nos. 272977 and
On December 12, 1994, Magno died and was substituted as defendant by
272976; 3) complainants are not compulsory heirs of Eustaquia; and 4) the
Celerina Sarreal Kamantigue, his sister, and Aida Sarreal. [18] During pre-trial,
title to the property has been transferred in the names of private respondents
the parties agreed that the sole issue to be resolved in the case was whether
pursuant to a valid sale long before the death of Eustaquia.
the sale of the property to private respondents was simulated or fictitious.
A separate answer[13] was filed on behalf of Magno Sarreal by his
On September

11,

1996,

petitioners

separate

applications

for

purported guardian ad litem and natural daughter, Aida Sarreal, which

receivership were denied. [19] Thereafter, trial ensued. Petitioners presented as
admitted virtually all the allegations of the complaint except the portion
witnesses Celerina Sarreal Kamantigue, Monico Reyes Palmario and Aida
which stated that the property belonged exclusively to Eustaquia. It alleged
Sarreal. The sole witness for the defense, on the other hand, was private
that the property, while originally paraphernal, became conjugal in character
respondent Gloria Reyes-Paulino.
because of the improvements introduced therein from the income of the
spouses and/or from the income or fruits of their separate properties.
After the parties presented their respective evidence, another motion
However, at that time, it appeared that the status of Aida Sarreal as

for the appointment of a receiver was filed by the children of Eustaquias

guardian ad litem was still in issue in two pending consolidated civil cases,

siblings but before a ruling could be made thereon, the decision [20] dated

namely, Civil Case No. Q-51482 [14] and Special Proceeding No. 50893. [15] The

September 7, 2001 was rendered by the RTC on September 12, 2001 in favor

appointed guardian ad litem of Magno in those cases, the University of

of petitioners which 1) declared the Deed of Absolute Sale executed between

Eustaquia and private respondents null and void; 2) ordered the Register of

had no means or source of income that would enable them to buy the

Deeds of Quezon City to cancel TCT Nos. 272976 and 272977; 3) allowed the

property and that they merely lived with the spouses Eustaquia and Magno

partition of the property among the legal heirs of Eustaquia and the legal
heirs of her deceased husband, Magno; 4) appointed the Branch Clerk of

Sarreal during their lifetime were mere generalities and fell short of the clear,

Court as commissioner for the purpose of partitioning the property and

convincing and more than merely preponderant evidence necessary to

rendering an account of all income received from the date of Eustaquias

overcome the notarized deed of sale. [23] The CA, moreover, found the

death; 5) pending partition, appointed the Clerk of Court as receiver of the

testimony of private respondent Gloria Reyes-Paulino more convincing in that

property; and 6) ordered the defendants to pay attorneys fees, litigation

she was able to establish she was earning an income and that she lived with

expenses and costs of suit.

her husband independently of the spouses Eustaquia and Magno.

Not satisfied, private respondents appealed the decision to the CA.

The CA held that the RTC showed undue bias in favor of complainants

On February 10, 2003, the CA reversed the decision of the RTC and rendered

by resolving the case on issues not agreed upon during the pre-trial,

the assailed Decision,[21]the dispositive portion of which reads:

particularly with regard to the true nature of the property and whether the

WHEREFORE, the appealed decision is REVERSED and

SET ASIDE, and another is entered:
a)
Dismissing the complaint;
b)
Revoking the appointment of a receiver
over the property in suit;
c)
Discharging forthwith the appointed
receiver, Atty. Mercedes Gatmaytan, the Clerk
of Court of the Regional Trial Court of Quezon
City; and
d)
Ordering the discharged receiver to
restore forthwith the possession of the subject
property to the appellants Anatalia Reyes and
Gloria Reyes-Paulino and render a full
accounting and settlement of her receivership
to the latter.

same was paraphernal or conjugal. It should be kept in mind that because the
property was deemed conjugal, the RTC held that the Deed of Absolute Sale
which did not bear Magnos signature was void.
Thereafter, separate motions for reconsideration[24] were filed by the children
of Eustaquias siblings and the heirs of Magno Sarreal. Collaborating counsel
for private respondents, on the other hand, filed a notice of entry of
appearance with omnibus motion.[25] The omnibus motion, attached as Annex
A to the notice, prayed for 1) the revocation of the appointment of the

The CA pointed out that during pre-trial, the parties agreed that the sole

receiver over the property; 2) the discharge of the appointed receiver; and 3)

issue that would limit or control the course of the trial was whether the

an order for the discharged receiver to restore possession of the property to

conveyance of the property to private respondents was simulated or

private respondents.

fictitious. The CA ruled that the burden of proof, which rested upon
complainants in this instance, was not met, after finding that the testimonies

After petitioners interposed their comment/opposition to the omnibus

of the complainants two witnesses[22] to the effect that private respondents

motion, another collaborating counsel for private respondents filed a notice

ordered the trial court to issue forthwith a writ of

execution of the directives in its decision despite their
lack of finality.

of entry of appearance with application for damages against receivers

bond[26] on March 25, 2003 praying that the receivers bond in the amount
4.
of P1,000,000.00 be declared liable for damages sustained by private
respondents. On April 2, 2003, private respondents also filed, with leave of
court, a consolidated comment to the motions for reconsideration filed by
petitioners.

The Resolution turns a blind eye upon the ruling

of the Honorable Supreme Court in Heirs of the Late
Justice Jose B.L. Reyes vs. Court of Appeals (338 SCRA
282), and has the deleterious effect of opening the
door to a dissipation of the fruits of the property in
dispute to the grave detriment of the petitioners
should the assailed Decision be reversed by the
Honorable Court.

In the assailed Resolution dated April 28, 2003, private respondents

The crux of the present controversy involves the resolution of validity
omnibus motion for the immediate execution of the directives regarding the
or invalidity of the conveyance of the property to private respondents.
receivership and accounting aspects of the CA decision was granted. Private
The trial court concluded on the basis of the evidence presented that
respondents application for damages against the receivers bond was, on the
the Deed of Absolute Sale was void for not embodying the consent of
other hand, referred to the RTC for hearing and disposition. Finally, petitioners
Eustaquias husband. The conclusion was drawn upon the finding of the RTC
motions for reconsideration were denied for lack of merit.
that the property subject of the deed was conjugal in character due to the
improvements

constructed

thereon

at

the

expense

of

the

conjugal

This petition was thereupon filed on May 9, 2003. This Court issued
partnership.
a status quo order on May 15, 2003, to stop the immediate execution of the
CA decision and resolution.

To reiterate, in reversing the decision of the trial court, the CA pointed

Petitioners anchor their petition on the following grounds:

out that the RTC had gone beyond the scope of the lone issue agreed upon by

1.

the parties during pre-trial, that is, whether the sale of the property to private

Respondent Court of Appeals committed serious

deviations from the law and settled jurisprudence in
holding that the land in dispute did not become
conjugal property of the late spouses Magno Sarreal
and Eustaquia Reyes and in reversing the trial court on
the issue of nullity of the deed of sale.

respondents was simulated or fictitious.

The Court is mindful of the rule that the determination of issues at a

2.

3.

Respondent Court likewise erred most grievously

in overturning the trial courts factual findings on the
basis of a uniquely one-sided or lopsided treatment of
the facts and in total disregard of the tenet in law that
issues of credibility should be left for the trial court to
resolve because unlike the appellate court, it had the
opportunity to observe the demeanor of witnesses at
close range.
Respondent Court acted in grave abuse of
discretion tantamount to excess of jurisdiction when it

pre-trial conference bars the consideration of other questions on appeal. A

pre-trial is meant to serve as a device to clarify and narrow down the basic
issues between the parties, to ascertain the facts relative to those issues and
to enable the parties to obtain the fullest possible knowledge of the issues
and facts before civil trials and thus prevent trials from being carried on in

the dark. Thus, to obviate the element of surprise, parties are expected to

nullified on the basis that it was simulated or fictitious. Rather, the ruling was

disclose at a pre-trial conference all issues of law and fact which they intend

that the absence of Magnos conformity rendered the deed of absolute sale

to raise at the trial, except such as may involve privileged or impeaching

fatally defective. In this regard, the evidence relied upon by the RTC to

matters.[27] The rule, however, is not to be applied with rigidity and admits of

support its conclusion that the property had become conjugal and therefore

certain exceptions.[28]

required Magnos consent was principally the testimony of Monico Reyes

Palmario as well as the lease agreement executed with ACME, to wit:

There is merit in petitioners claim that the limitation upon the issue
embodied in the pre-trial order did not control the course of the trial. The

After a careful examination of the testimonial and

documentary evidence adduced by both parties, it appears to
the Court that:

issue on the nature of the property was embodied in the pleadings filed
xxx
by the parties subsequent to the complaint and was actively
6. The
litigated by them without any objection on the part of private
respondents. In view thereof, the latter are deemed to have given their
implied consent for the RTC to try this issue. It is worthy to note that a careful
perusal of the RTC decision would reveal that the trial court found it
unnecessary to make a categorical finding as to whether the deed was
simulated or fictitious, the focal point being the character of the property at
the time of the transfer to private respondents. While it is true that the RTC
cited the evidence introduced by petitioners to establish that the sale was
simulated or fictitious, it did not make a clear and definitive ruling on this
matter, and instead stated as follows:
While these circumstances may be considered in the
determination of the alleged fraud in the transfer of property
by way of Deed of Sale allegedly executed by Eustaquia Reyes
in favor of defendants Gloria Reyes-Paulino and Anatalia
Reyes, the Court is nevertheless confronted with a significant
factual element which, by and in itself alone and independent
of circumstances indicative of fraud, nullifies the said Deed of
Sale. There is a clear absence of Magno Sarreals signature in
the Deed of Sale of the subject property in favor of Gloria
Reyes-Paulino and Anatalia Reyes. [29]

Contrary to the assumption made by the CA, the deed was clearly not

subject property was acquired by

Eustaquia Reyes prior to her marriage
to Magno Sarreal. During the lifetime
of the marriage, improvements were
made thereon as declared in page 4
Paragraph XI (Exhibit A-7) of the Lease
Agreement
showing
that
all
improvements in the said parcel of
land as of June 5, 1983, at the
expiration of the lease, shall belong to
the
lessors. Witness
plaintiff
Monico Reyes Palmario likewise
testified
that
he
had
been
engaged by the spouses as a
carpenter and mason to make
improvements on the property. He
made repairs on the buildings
constructed on the property. He
further testified that there were
at least ten (10) houses on the
said property and a building
housing a knitting company. (TSN
of October 2, 1997, p. 10)

xxx
As in the Embrado Case, the sale of the subject property to
defendants Gloria Reyes-Paulino and Anatalia Reyes was void
because Magno Sarreal did not consent to the sale, which
consent was necessary because the property is conjugal,
hence the consent of Magno Sarreal as spouse is
necessary. While it is true that the parcel of land
covered by TCT 26031 was acquired by Eustaquia
Reyes prior to her marriage to defendant Sarreal, it
was established that improvements were made
consisting of houses, buildings for rent. Likewise, all

improvements
introduced
thereon
by
Acme-Abrasive
Manufacturing Corporation upon the expiration of the lease
on June 5, 1983 became conjugal properties of Spouses
Eustaquia Reyes Sarreal and Magno Sarreal. There is no
substantial evidence presented as to the source of funds used
in the improvements but it was testified upon that the same
were made during the subsistence of the marriage hence the
presumption that the funds used were conjugal stands. Under
Article 158 of the Civil Code, the land becomes conjugal upon
the
construction
of
the
building
without
awaiting
reimbursement before or at the liquidation of the partnership
upon the concurrence of two conditions, to wit: (a) the
construction of the building at the expense of the partnership;
and (b) the ownership of the land by one of the spouses
(Embrado vs. Court of Appeals, supra). Thus, in this instant
case, while the land originally belonged to Eustaquia Reyes,
the same became conjugal upon the construction of
improvements thereon.[30]

lease. Rather, under the terms of the lease contract, it was the building itself
that would inure to the lessor as fruits but only at the end of the lease
period on June 1, 1983. At that time, however, Eustaquia had already sold
the land, on January 24, 1979, to private respondents. Hence, the transfer of
the ownership of the building from the lessee to the lessor could not convert
the land into conjugal property since the land itself no longer belonged to one
of the spouses at that time.
This

notwithstanding,

the

RTC

did

not

rely

solely

upon

the

improvements introduced by ACME in ruling that the property became

conjugal. As mentioned above, it likewise gave full faith and credence to the
In the present case, the CA considered only the improvements
testimony of Monico Reyes Palmario who testified that there were houses and
introduced by ACME during the subsistence of the latters lease to determine
buildings that were constructed on the property prior to the purported sale to
whether the property became conjugal. It ruled in the negative after
private respondents.
concluding that these improvements were not at the partnerships expense,
but rather at the expense of the lessee.
The CA, however, held otherwise, stating that the testimony of
private respondent Gloria Reyes-Paulino was more credible, thus:
It is argued by private respondents that the improvements made by
ACME did not transform the character of the property from being paraphernal
into

being

conjugal.

The

statutory

requirement

set

forth

under

Article 158 of the Civil Code [31] is that the improvements have to be made or
undertaken at the expense of the conjugal partnership. Under the terms
of the lease agreement, the lessee was allowed to build on the property at
its own expense, subject to the condition that after the termination of the

The complaint, however, never mentioned any house

or a building occupied by a knitting company; it confined itself
only to a parcel of land and market stalls. Hence, Palmario
must be referring to another land and his lack of certitude is
confirmed by his inability to be sure of the number of houses
that he was talking about.
Indeed, appellant GLORIA, who is renting one of those
houses or apartments from Eustaquia and Magno, and who is
thus more knowledgeable of the place and hence, more
reliable, declared that they are outside the land in controversy.
[32]

lease, ownership over the same would inure to the benefit of the lessor. This
Court agrees that the expense incurred by ACME in constructing the buildings

Applying the well-known test of credibility called the actors rule, it is

on Eustaquias property cannot be construed as being converted into an

the witness whose action is more closely connected to the point at issue that

expense taken against the civil fruits of the property by virtue of the

should be given more credence. [33] In the present case, the RTC gave

credence to the testimony of petitioner Monico Reyes Palmario, who claimed

A Balintawak, sir.

he worked as carpenter on the property in question, and there were houses

xxxxxxxxx

and buildings constructed on the property including a knitting factory. The

Q Do you know the area of this parcel of land?

CA, however, sustained the testimony of private respondent Gloria Reyes-

A Seven thousand square meters, sir.

Paulino, who rented from the spouses Eustaquia and Magno one of the
houses or apartments, and lived therein, and who testified that these houses

Q Is that parcel of land you identified the same

parcel of land subject matter of this
case?

and buildings were on a different property. As between these two witnesses,

A Yes, sir.

the latter is more reliable since her act of renting and living in one of the
houses or apartments makes her the actor more closely related to the point

Q Mr. witness, do you have any occasion to

work on the Seven Thousand square
meter parcel of land?

at issue, i.e., whether or not the houses were on the property in question. For

A Yes, sir.

while a carpenter would not concern himself with the title of the property, a

Q What was that work that you did, Mr.

Witness?

lessee would normally look into the title covering the property leased,
A I worked as a carpenter, sir.
including its precise location or boundaries, and in fact Gloria Reyes-Paulino
testified that the lot on which the house she rented was found had a separate

Q You made mention of house. How many

houses are there inside this property?

title.

A More or less ten (10) houses, sir.

Accordingly, the CA aptly held as follows:

For his part, plaintiff-appellee Monico Reyes Palmario
testified on more or less ten (10) houses constructed on the
land in dispute by EUSTAQUIA and Magno, on which he even
had the occasion to work on them as a carpenter, aside from
a building occupied by a knitting company, viz.:
Q And will you also inform this Honorable Court
if the spouses Magno Sarreal and
Eustaquia Reyes had left any property?
A Yes, sir, they have a portion of land and a
paupahang bahay.

Q By the way, who was . . . or who spent for

the construction of those houses, if you
know?
A The spouses Eustaquia Reyes and Magno
Sarreal, sir.
Q Aside from those houses, do you know if
there are other improvements or other
building inside the property?
A Yes, sir, knitting company.
Q Who owns the building that occupy the
factory?
A Spouses Eustaquia Reyes and Magno Sarreal,
sir.

Q Do you know where is this parcel of land?

A Balintawak, sir, Samson Road.
[Q] What city?

The complaint, however, never mentioned any house

or a building occupied by a knitting company; it confined
itself only to a parcel of land and market stalls. Hence,
Palmario must be referring to another land and his lack of

certitude is confirmed by his inability to be sure of the

number of the houses that he was talking about.
Indeed, appellant GLORIA, who is renting one of
those houses or apartments from EUSTAQUIA and Magno,
and who is thus more knowledgeable of the place and,
hence, more reliable declared that they are outside the land
in controversy.
Q Now,

let us talk about the parcel of

land. How far is this parcel of land from
the place where you were residing in
1979?

A It is just at the back, sir.

Q Do you mean to tell us that the land of which
your apartment was situated is not part
of the parcel of land with an area of
7,484 square meters?
A No, sir.
Q When you say hindi, the lot on which your
apartment was situated has a
separate title of its own?
A Yes, sir. [34]
Q And the title to that apartment was in the
name of the spouses?
A Yes, sir.
Be that as it may, the improvements referred to by the trial
court which purportedly made the property conjugal
consisted of houses, buildings for rent and improvements
introduced thereon by lessee Acme-Abrasive Manufacturing
Corporation upon the expiration of the lease on June [1],
1983. It said:
As in the Embrado Case, the sale of the subject
property to defendants Gloria Reyes Paulino
and Anatalia Reyes was void because Magno
Sarreal did not consent to the sale, which
consent was necessary because the property is
conjugal hence the consent of Magno Sarreal
as spouse is necessary. While it is true that the
parcel of land covered by TCT 26031 was
acquired by Eustaquia Reyes prior to her
marriage to defendant Sarreal, it was
established that improvements were made
consisting
of
houses,
buildings
for
rent.Likewise, all improvements introduced
thereon
by
lessee
Acme-Abrasive

Manufacturing Corporation upon the expiration

of the lease on June [1], 1983 became the
conjugal properties of Spouses Eustaquia
Reyes Sarreal and Magno Sarreal. There is no
substantial evidence presented as to the
source of funds used in the improvements but
it was testified upon that the same were made
during the subsistence of the marriage hence
the presumption that the funds used were
conjugal stands. Under Article 158 of the Civil
Code, the land becomes conjugal upon the
construction of the building without awaiting
reimbursement before or at the liquidation of
the partnership upon the concurrence of two
conditions, to wit: (a) the construction of the
building at the expense of the partnership, and
(b) the ownership of the land by one of the
spouses. (Embrado vs. Court of Appeals,
supra) Thus, in this instant case, while the land
originally belonged to Eustaquia Reyes, the
same became conjugal upon the construction
of improvements thereon.
The houses or apartments being outside the land in
suit, the only improvements that should be looked into in the
case at bench are the improvements introduced thereon by
the lessee Acme-Abrasive Manufacturing Corporation. In this
connection, it is worth reiterating that paragraph XI of the
contract of lease provided:
XI
That this contract of lease shall be for a period
of TWENTY (20) YEARS from June 1st, 1963 and
expiring on June 1st 1983; and that upon
termination of the period of this contract, the
ownership of all the improvements found
within
the
leased
property,
(except
machineries of any kind, stocks, furniture and
other personal property found in the building)
shall be automatically transferred to the
LESSOR without reimbursement and without
paying the cost and value thereof to the
LESSEE; and that if it is necessary for the
LESSEE to execute and deliver papers,
documents and other writings, whatsoever to
effect the transfer of the ownership of all the
said improvements to the LESSOR, the LESSEE
shall execute and deliver the same to the
LESSOR.
Two (2) decisive facts are clearly discernible therefrom: first,
no conjugal fund ever went into the construction of the
improvements as they were all done at the expense of the

lessee; and second, the improvements shall devolve to the

ownership of the lessor only upon the expiration of the lease.
The lease expired on June 1, 1983. At that time, the lessor
was no longer EUSTAQUIA but the appellants ANATALIA and
GLORIA. This is for the simple reason that in the interim, or
onJanuary 24, 1979, the lessor EUSTAQUIA sold the land to
ANATALIA and GLORIA who thereupon succeeded EUSTAQUIA
as lessor. Necessarily, ANATALIA and GLORIA became the
owners of the land, together with all the improvements
thereon, upon the expiration of the lease on June 1, 1983,
being already the lessors on that date. Logically, too, when
EUSTAQUIA sold the property, it was still paraphernal, as she
correctly repeatedly emphasized in the deed of sale
paraphernal or exclusive property ko, at hindi conjugal
naming mag-asawa; ito ay aking minana o isang inheritance
property. Resultantly, when EUSTAQUIA died on May 7, 1987,
the plaintiffs, including the surviving husband, Magno
Sarreal, could no longer inherit the property from her since
she was then not anymore the owner thereof.[35]

respondents on January 24, 1979 was paraphernal, the consent of Magno was
not required and the sale cannot be held invalid on the basis of its absence.

WHEREFORE, the petition is DENIED and the assailed Decision and

Resolution
rendered

dated February
by

the

Court

of

2003 and April

Appeals

in

28,

CA-G.R.

2003,
CV

No.

respectively,
71807

are

hereby AFFIRMED. The status quo order issued by this Court on May 15,
2003 is LIFTED effective upon the finality of this Decision.
Costs against petitioners.

SO ORDERED.
Accordingly, since the property sold by Eustaquia to private

10,