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A.M. No.

01-7-01-SC

July 17, 2001

RULES ON ELECTRONIC EVIDENCE


Acting on the Memorandum dated 18 June 2001 of the Committee on the Revision of the Rules of Court to Draft the
Rules on E-Commerce Law [R.A. No. 8792] submitting the Rules on Electronic Evidence for this Court's
consideration and approval, the Court Resolved to APPROVED the same.
The Rules on Electronic Evidence shall apply to cases pending after their effectivity. These Rules shall take effect on
the first day of August 2001 following thier publication before the 20th of July in two newspapers of general circulation
in the Philippines
17th July 2001.

RULES ON ELECTRONIC EVIDENCE


Rule
COVERAGE

Section 1. Scope. Unless otherwise provided herein, these Rules shall apply whenever an electronic document or
electronic data message, as defined in Rule 2 hereof, is offered or used in evidence.
Section 2. Cases covered. These Rules shall apply to all civil actions and proceedings, as well as quasi-judicial
and administrative cases.
Section 3. Application of other rules on evidence. In all matters not specifically covered by these Rules, the Rules
of Court and pertinent provisions of statutes containing rules on evidence shall apply.
Rule
DEFINITION OF TERMS AND CONSTRUCTION

Section 1. Definition of terms. For purposes of these Rules, the following terms are defined, as follows:
(a) "Asymmetric or public cryptosystem" means a system capable of generating a secure key pair, consisting
of a private key for creating a digital signature, and a public key for verifying the digital signature.
(b) "Business records" include records of any business, institution, association, profession, occupation, and
calling of every kind, whether or not conducted for profit, or for legitimate or illegitimate purposes.
(c) "Certificate" means an electronic document issued to support a digital signature which purports to
confirm the identity or other significant characteristics of the person who holds a particular key pair.
(d) "Computer" refers to any single or interconnected device or apparatus, which, by electronic, electromechanical or magnetic impulse, or by other means with the same function, can receive, record, transmit,
store, process, correlate, analyze, project, retrieve and/or produce information, data, text, graphics, figures,
voice, video, symbols or other modes of expression or perform any one or more of these functions.
(e) "Digital signature" refers to an electronic signature consisting of a transformation of an electronic
document or an electronic data message using an asymmetric or public cryptosystem such that a person
having the initial untransformed electronic document and the signer's public key can accurately determine:

i. whether the transformation was created using the private key that corresponds to the signer's
public key; and
ii. whether the initial electronic document had been altered after the transformation was made.
(f) "Digitally signed" refers to an electronic document or electronic data message bearing a digital signature
verified by the public key listed in a certificate.
(g) "Electronic data message" refers to information generated, sent, received or stored by electronic, optical
or similar means.
(h) "Electronic document" refers to information or the representation of information, data, figures, symbols or
other modes of written expression, described or however represented, by which a right is established or an
obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded,
transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents
and any print-out or output, readable by sight or other means, which accurately reflects the electronic data
message or electronic document. For purposes of these Rules, the term "electronic document" may be used
interchangeably with "electronic data message".
(i) "Electronic key" refers to a secret code which secures and defends sensitive information that crosses
over public channels into a form decipherable only with a matching electronic key.
(j) "Electronic signature" refers to any distinctive mark, characteristic and/or sound in electronic form,
representing the identity of a person and attached to or logically associated with the electronic data
message or electronic document or any methodology or procedure employed or adopted by a person and
executed or adopted by such person with the intention of authenticating, signing or approving an electronic
data message or electronic document. For purposes of these Rules, an electronic signature includes digital
signatures.
(k) "Ephemeral electronic communication" refers to telephone conversations, text messages, chatroom
sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of
which is not recorded or retained.
(l) "Information and communication system" refers to a system for generating, sending, receiving, storing or
otherwise processing electronic data messages or electronic documents and includes the computer system
or other similar devices by or in which data are recorded or stored and any procedure related to the
recording or storage of electronic data messages or electronic documents.
(m) "Key pair" in an asymmetric cryptosystem refers to the private key and its mathematically related public
key such that the latter can verify the digital signature that the former creates.
(n) "Private key" refers to the key of a key pair used to create a digital signature.
(o) "Public key" refers to the key of a key pair used to verify a digital signature.
Section 2. Construction. These Rules shall be liberally construed to assist the parties in obtaining a just,
expeditious, and inexpensive determination of cases.
The interpretation of these Rules shall also take into consideration the international origin of Republic Act No. 8792,
otherwise known as the Electronic Commerce Act.
Rule
ELECTRONIC DOCUMENTS

Section 1. Electronic documents as functional equivalent of paper-based documents. Whenever a rule of evidence
refers to the term writing, document, record, instrument, memorandum or any other form of writing, such term shall be
deemed to include an electronic document as defined in these Rules.

Section 2. Admissibility. An electronic document is admissible in evidence if it complies with the rules on
admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by
these Rules.
Section 3. Privileged communication. The confidential character of a privileged communication is not lost solely on
the ground that it is in the form of an electronic document.
Rule
BEST EVIDENCE RULE

Section 1. Original of an electronic document. An electronic document shall be regarded as the equivalent of an
original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown
to reflect the data accurately.
Section 2. Copies as equivalent of the originals. When a document is in two or more copies executed at or about
the same time with identical contents, or is a counterpart produced by the same impression as the original, or from
the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent
techniques which accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of
the original.
Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if:
(a) a genuine question is raised as to the authenticity of the original; or
(b) in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original.
Rule
AUTHENTICATION OF ELECTRONIC DOCUMENTS

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.
Section 3. Proof of electronically notarized document. A document electronically notarized in accordance with the
rules promulgated by the Supreme Court shall be considered as a public document and proved as a notarial
document under the Rules of Court.
Rule
ELECTRONIC SIGNATURES

Section 1. Electronic signature. An electronic signature or a digital signature authenticated in the manner
prescribed hereunder is admissible in evidence as the functional equivalent of the signature of a person on a written
document.
Section 2. Authentication of electronic signatures. An electronic signature may be authenticated in any of the
following manner:

(a) By evidence that a method or process was utilized to establish a digital signature and verify the same;
(b) By any other means provided by law; or
(c) By any other means satisfactory to the judge as establishing the genuineness of the electronic signature.
Section 3. Disputable presumptions relating to electronic signatures. Upon the authentication of an electronic
signature, it shall be presumed that:
(a) The electronic signature is that of the person to whom it correlates;
(b) The electronic signature was affixed by that person with the intention of authenticating or approving the
electronic document to which it is related or to indicate such person's consent to the transaction embodied
therein; and
(c) The methods or processes utilized to affix or verify the electronic signature operated without error or
fault.
Section 4. Disputable presumptions relating to digital signatures. Upon the authentication of a digital signature, it
shall be presumed, in addition to those mentioned in the immediately preceding section, that:
(a) The information contained in a certificate is correct;
(b) The digital signature was created during the operational period of a certificate;
(c) No cause exists to render a certificate invalid or revocable;
(d) The message associated with a digital signature has not been altered from the time it was signed; and,
(e) A certificate had been issued by the certification authority indicated therein.
Rule
EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS

Section 1. Factors for assessing evidentiary weight. In assessing the evidentiary weight of an electronic document,
the following factors may be considered:
(a) The reliability of the manner or method in which it was generated, stored or communicated, including but
not limited to input and output procedures, controls, tests and checks for accuracy and reliability of the
electronic data message or document, in the light of all the circumstances as well as any relevant
agreement;
(b) The reliability of the manner in which its originator was identified;
(c) The integrity of the information and communication system in which it is recorded or stored, including but
not limited to the hardware and computer programs or software used as well as programming errors;
(d) The familiarity of the witness or the person who made the entry with the communication and information
system;
(e) The nature and quality of the information which went into the communication and information system
upon which the electronic data message or electronic document was based; or
(f) Other factors which the court may consider as affecting the accuracy or integrity of the electronic
document or electronic data message.

Section 2. Integrity of an information and communication system. In any dispute involving the integrity of the
information and communication system in which an electronic document or electronic data message is recorded or
stored, the court may consider, among others, the following factors:
(a) Whether the information and communication system or other similar device was operated in a manner
that did not affect the integrity of the electronic document, and there are no other reasonable grounds to
doubt the integrity of the information and communication system;
(b) Whether the electronic document was recorded or stored by a party to the proceedings with interest
adverse to that of the party using it; or
(c) Whether the electronic document was recorded or stored in the usual and ordinary course of business by
a person who is not a party to the proceedings and who did not act under the control of the party using it.
Rule
BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE

Section 1. Inapplicability of the hearsay rule. A memorandum, report, record or data compilation of acts, events,
conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or near the time of or from
transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct
of a business activity, and such was the regular practice to make the memorandum, report, record, or data
compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other
qualified witnesses, is excepted from the rule on hearsay evidence.
Section 2. Overcoming the presumption. The presumption provided for in Section 1 of this Rule may be overcome
by evidence of the untrustworthiness of the source of information or the method or circumstances of the preparation,
transmission or storage thereof.
Rule
METHOD OF PROOF

Section 1. Affidavit evidence. All matters relating to the admissibility and evidentiary weight of an electronic
document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on
authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters
contained therein.
Section 2. Cross-examination of deponent. The affiant shall be made to affirm the contents of the affidavit in open
court and may be cross-examined as a matter of right by the adverse party.
Rule
EXAMINATION OF WITNESSES

10

Section 1. Electronic testimony. After summarily hearing the parties pursuant to Rule 9 of these Rules, the court
may authorize the presentation of testimonial evidence by electronic means. Before so authorizing, the court shall
determine the necessity for such presentation and prescribe terms and conditions as may be necessary under the
circumstances, including the protection of the rights of the parties and witnesses concerned.
Section 2. Transcript of electronic testimony. When examination of a witness is done electronically, the entire
proceedings, including the questions and answers, shall be transcribed by a stenographer, stenotypist or other
recorder authorized for the purpose, who shall certify as correct the transcript done by him. The transcript should
reflect the fact that the proceedings, either in whole or in part, had been electronically recorded.
Section 3. Storage of electronic evidence. The electronic evidence and recording thereof as well as the
stenographic notes shall form part of the record of the case. Such transcript and recording shall be deemed prima
facie evidence of such proceedings.

Rule
AUDIO, PHOTOGRAPHIC, VIDEO, AND EPHEMERAL EVIDENCE

11

Section 1. Audio, video and similar evidence. Audio, photographic and video evidence of events, acts or
transactions shall be admissible provided it shall be shown, presented or displayed to the court and shall be
identified, explained or authenticated by the person who made the recording or by some other person competent to
testify on the accuracy thereof.
Section 2. Ephemeral electronic communications. Ephemeral electronic communications shall be proven by the
testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or
unavailability of such witnesses, other competent evidence may be admitted.
A recording of the telephone conversation or ephemeral electronic communication shall be covered by the
immediately preceding section.
If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5
shall apply.

A.M. No. 01-7-01-SC


RE: EXPANSION OF THE COVERAGE OF THE RULES ON ELECTRONIC EVIDENCE
RESOLUTION
Acting on the letter of the Chairman of the Committee on Revision of the Rules of Court, the Court Resolved to
AMEND Section 2, Rule 1 of the Rules on Electronic Evidence to read as follows:
"SEC. 2 Cases covered. - These Rules shall apply to the criminal and civil actions and proceeding, as well as quasijudicial and administrative cases."
The amendment shall take effect on October 14, 2002 following the publication of this Resolution in a newspaper of
general circulation.

G.R. No. 170338

December 23, 2008

VIRGILIO O. GARCILLANO, petitioner,


vs.
THE HOUSE OF REPRESENTATIVES COMMITTEES ON PUBLIC INFORMATION, PUBLIC
ORDER AND SAFETY, NATIONAL DEFENSE AND SECURITY, INFORMATION AND
COMMUNICATIONS TECHNOLOGY, and SUFFRAGE AND ELECTORAL
REFORMS, respondents.
x----------------------x

G.R. No. 179275

December 23, 2008

SANTIAGO JAVIER RANADA and OSWALDO D. AGCAOILI, petitioners,


vs.
THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, REPRESENTED BY THE SENATE
PRESIDENT THE HONORABLE MANUEL VILLAR, respondents.
x----------------------x
MAJ. LINDSAY REX SAGGE, petitioner-in-intervention
x----------------------x
AQUILINO Q. PIMENTEL, JR., BENIGNO NOYNOY C. AQUINO, RODOLFO G. BIAZON,
PANFILO M. LACSON, LOREN B. LEGARDA, M.A. JAMBY A.S. MADRIGAL, and ANTONIO F.
TRILLANES, respondents-intervenors
DECISION
NACHURA, J.:
More than three years ago, tapes ostensibly containing a wiretapped conversation purportedly
between the President of the Philippines and a high-ranking official of the Commission on Elections
(COMELEC) surfaced. They captured unprecedented public attention and thrust the country into a
controversy that placed the legitimacy of the present administration on the line, and resulted in the
near-collapse of the Arroyo government. The tapes, notoriously referred to as the "Hello Garci"
tapes, allegedly contained the Presidents instructions to COMELEC Commissioner Virgilio
Garcillano to manipulate in her favor results of the 2004 presidential elections. These recordings
were to become the subject of heated legislative hearings conducted separately by committees of
both Houses of Congress.1
In the House of Representatives (House), on June 8, 2005, then Minority Floor Leader Francis G.
Escudero delivered a privilege speech, "Tale of Two Tapes," and set in motion a congressional
investigation jointly conducted by the Committees on Public Information, Public Order and Safety,
National Defense and Security, Information and Communications Technology, and Suffrage and
Electoral Reforms (respondent House Committees). During the inquiry, several versions of the
wiretapped conversation emerged. But on July 5, 2005, National Bureau of Investigation (NBI)
Director Reynaldo Wycoco, Atty. Alan Paguia and the lawyer of former NBI Deputy Director Samuel
Ong submitted to the respondent House Committees seven alleged "original" tape recordings of the
supposed three-hour taped conversation. After prolonged and impassioned debate by the committee
members on the admissibility and authenticity of the recordings, the tapes were eventually played in
the chambers of the House.2
On August 3, 2005, the respondent House Committees decided to suspend the hearings indefinitely.
Nevertheless, they decided to prepare committee reports based on the said recordings and the
testimonies of the resource persons.3

Alarmed by these developments, petitioner Virgilio O. Garcillano (Garcillano) filed with this Court a
Petition for Prohibition and Injunction, with Prayer for Temporary Restraining Order and/or Writ of
Preliminary Injunction4docketed as G.R. No. 170338. He prayed that the respondent House
Committees be restrained from using these tape recordings of the "illegally obtained" wiretapped
conversations in their committee reports and for any other purpose. He further implored that the said
recordings and any reference thereto be ordered stricken off the records of the inquiry, and the
respondent House Committees directed to desist from further using the recordings in any of the
House proceedings.5
Without reaching its denouement, the House discussion and debates on the "Garci tapes" abruptly
stopped.
After more than two years of quiescence, Senator Panfilo Lacson roused the slumbering issue with a
privilege speech, "The Lighthouse That Brought Darkness." In his discourse, Senator Lacson
promised to provide the public "the whole unvarnished truth the whats, whens, wheres, whos and
whys" of the alleged wiretap, and sought an inquiry into the perceived willingness of
telecommunications providers to participate in nefarious wiretapping activities.
On motion of Senator Francis Pangilinan, Senator Lacsons speech was referred to the Senate
Committee on National Defense and Security, chaired by Senator Rodolfo Biazon, who had
previously filed two bills6 seeking to regulate the sale, purchase and use of wiretapping equipment
and to prohibit the Armed Forces of the Philippines (AFP) from performing electoral duties. 7
In the Senates plenary session the following day, a lengthy debate ensued when Senator Richard
Gordon aired his concern on the possible transgression of Republic Act (R.A.) No. 4200 8 if the body
were to conduct a legislative inquiry on the matter. On August 28, 2007, Senator Miriam DefensorSantiago delivered a privilege speech, articulating her considered view that the Constitution
absolutely bans the use, possession, replay or communication of the contents of the "Hello Garci"
tapes. However, she recommended a legislative investigation into the role of the Intelligence Service
of the AFP (ISAFP), the Philippine National Police or other government entities in the alleged illegal
wiretapping of public officials.9
On September 6, 2007, petitioners Santiago Ranada and Oswaldo Agcaoili, retired justices of the
Court of Appeals, filed before this Court a Petition for Prohibition with Prayer for the Issuance of a
Temporary Restraining Order and/or Writ of Preliminary Injunction, 10 docketed as G.R. No. 179275,
seeking to bar the Senate from conducting its scheduled legislative inquiry. They argued in the main
that the intended legislative inquiry violates R.A. No. 4200 and Section 3, Article III of the
Constitution.11
As the Court did not issue an injunctive writ, the Senate proceeded with its public hearings on the
"Hello Garci" tapes on September 7,12 1713 and October 1,14 2007.
Intervening as respondents,15 Senators Aquilino Q. Pimentel, Jr., Benigno Noynoy C. Aquino,
Rodolfo G. Biazon, Panfilo M. Lacson, Loren B. Legarda, M.A. Jamby A.S. Madrigal and Antonio F.
Trillanes filed their Comment16 on the petition on September 25, 2007.

The Court subsequently heard the case on oral argument. 17


On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the ISAFP and one of the resource
persons summoned by the Senate to appear and testify at its hearings, moved to intervene as
petitioner in G.R. No. 179275.18
On November 20, 2007, the Court resolved to consolidate G.R. Nos. 170338 and 179275. 19
It may be noted that while both petitions involve the "Hello Garci" recordings, they have different
objectivesthe first is poised at preventing the playing of the tapes in the House and their
subsequent inclusion in the committee reports, and the second seeks to prohibit and stop the
conduct of the Senate inquiry on the wiretapped conversation.
The Court dismisses the first petition, G.R. No. 170338, and grants the second, G.R. No. 179275.
-IBefore delving into the merits of the case, the Court shall first resolve the issue on the parties
standing, argued at length in their pleadings.
In Tolentino v. COMELEC,20 we explained that "[l]egal standing or locus standi refers to a personal
and substantial interest in a case such that the party has sustained or will sustain direct injury
because of the challenged governmental act x x x," thus,
generally, a party will be allowed to litigate only when (1) he can show that he has personally
suffered some actual or threatened injury because of the allegedly illegal conduct of the
government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is
likely to be redressed by a favorable action.21
The gist of the question of standing is whether a party has "alleged such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumination of difficult constitutional
questions."22
However, considering that locus standi is a mere procedural technicality, the Court, in recent cases,
has relaxed the stringent direct injury test. David v. Macapagal-Arroyo23 articulates that a "liberal
policy has been observed, allowing ordinary citizens, members of Congress, and civic organizations
to prosecute actions involving the constitutionality or validity of laws, regulations and rulings." 24 The
fairly recent Chavez v. Gonzales25 even permitted a non-member of the broadcast media, who failed
to allege a personal stake in the outcome of the controversy, to challenge the acts of the Secretary
of Justice and the National Telecommunications Commission. The majority, in the said case, echoed
the current policy that "this Court has repeatedly and consistently refused to wield procedural
barriers as impediments to its addressing and resolving serious legal questions that greatly impact
on public interest, in keeping with the Courts duty under the 1987 Constitution to determine whether
or not other branches of government have kept themselves within the limits of the Constitution and
the laws, and that they have not abused the discretion given to them."26

In G.R. No. 170338, petitioner Garcillano justifies his standing to initiate the petition by alleging that
he is the person alluded to in the "Hello Garci" tapes. Further, his was publicly identified by the
members of the respondent committees as one of the voices in the recordings. 27 Obviously,
therefore, petitioner Garcillano stands to be directly injured by the House committees actions and
charges of electoral fraud. The Court recognizes his standing to institute the petition for prohibition.
In G.R. No. 179275, petitioners Ranada and Agcaoili justify their standing by alleging that they are
concerned citizens, taxpayers, and members of the IBP. They are of the firm conviction that any
attempt to use the "Hello Garci" tapes will further divide the country. They wish to see the legal and
proper use of public funds that will necessarily be defrayed in the ensuing public hearings. They are
worried by the continuous violation of the laws and individual rights, and the blatant attempt to abuse
constitutional processes through the conduct of legislative inquiries purportedly in aid of legislation. 28
Intervenor Sagge alleges violation of his right to due process considering that he is summoned to
attend the Senate hearings without being apprised not only of his rights therein through the
publication of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation, but also of the
intended legislation which underpins the investigation. He further intervenes as a taxpayer bewailing
the useless and wasteful expenditure of public funds involved in the conduct of the questioned
hearings.29
Given that petitioners Ranada and Agcaoili allege an interest in the execution of the laws and that
intervenor Sagge asserts his constitutional right to due process,30 they satisfy the requisite personal
stake in the outcome of the controversy by merely being citizens of the Republic.
Following the Courts ruling in Francisco, Jr. v. The House of Representatives,31 we find sufficient
petitioners Ranadas and Agcaoilis and intervenor Sagges allegation that the continuous conduct by
the Senate of the questioned legislative inquiry will necessarily involve the expenditure of public
funds.32 It should be noted that inFrancisco, rights personal to then Chief Justice Hilario G. Davide,
Jr. had been injured by the alleged unconstitutional acts of the House of Representatives, yet the
Court granted standing to the petitioners therein for, as in this case, they invariably invoked the
vindication of their own rightsas taxpayers, members of Congress, citizens, individually or in a class
suit, and members of the bar and of the legal professionwhich were also supposedly violated by the
therein assailed unconstitutional acts.33
Likewise, a reading of the petition in G.R. No. 179275 shows that the petitioners and intervenor
Sagge advance constitutional issues which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents. The issues are of transcendental and paramount
importance not only to the public but also to the Bench and the Bar, and should be resolved for the
guidance of all.34
Thus, in the exercise of its sound discretion and given the liberal attitude it has shown in prior cases
climaxing in the more recent case of Chavez, the Court recognizes the legal standing of petitioners
Ranada and Agcaoili and intervenor Sagge.
- II -

The Court, however, dismisses G.R. No. 170338 for being moot and academic. Repeatedly stressed
in our prior decisions is the principle that the exercise by this Court of judicial power is limited to the
determination and resolution of actual cases and controversies.35 By actual cases, we mean existing
conflicts appropriate or ripe for judicial determination, not conjectural or anticipatory, for otherwise
the decision of the Court will amount to an advisory opinion. The power of judicial inquiry does not
extend to hypothetical questions because any attempt at abstraction could only lead to dialectics and
barren legal questions and to sterile conclusions unrelated to actualities. 36 Neither will the Court
determine a moot question in a case in which no practical relief can be granted. A case becomes
moot when its purpose has become stale.37 It is unnecessary to indulge in academic discussion of a
case presenting a moot question as a judgment thereon cannot have any practical legal effect or, in
the nature of things, cannot be enforced.38
In G.R. No. 170338, petitioner Garcillano implores from the Court, as aforementioned, the issuance
of an injunctive writ to prohibit the respondent House Committees from playing the tape recordings
and from including the same in their committee report. He likewise prays that the said tapes be
stricken off the records of the House proceedings. But the Court notes that the recordings were
already played in the House and heard by its members.39 There is also the widely publicized fact that
the committee reports on the "Hello Garci" inquiry were completed and submitted to the House in
plenary by the respondent committees.40 Having been overtaken by these events, the Garcillano
petition has to be dismissed for being moot and academic. After all, prohibition is a preventive
remedy to restrain the doing of an act about to be done, and not intended to provide a remedy for an
act already accomplished.41
- III As to the petition in G.R. No. 179275, the Court grants the same. The Senate cannot be allowed to
continue with the conduct of the questioned legislative inquiry without duly published rules of
procedure, in clear derogation of the constitutional requirement.
Section 21, Article VI of the 1987 Constitution explicitly provides that "[t]he Senate or the House of
Representatives, or any of its respective committees may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure." The requisite of publication of the rules is
intended to satisfy the basic requirements of due process.42 Publication is indeed imperative, for it
will be the height of injustice to punish or otherwise burden a citizen for the transgression of a law or
rule of which he had no notice whatsoever, not even a constructive one. 43 What constitutes
publication is set forth in Article 2 of the Civil Code, which provides that "[l]aws shall take effect after
15 days following the completion of their publication either in the Official Gazette, or in a newspaper
of general circulation in the Philippines."44
The respondents in G.R. No. 179275 admit in their pleadings and even on oral argument that the
Senate Rules of Procedure Governing Inquiries in Aid of Legislation had been published in
newspapers of general circulation only in 1995 and in 2006. 45 With respect to the present Senate of
the 14th Congress, however, of which the term of half of its members commenced on June 30, 2007,
no effort was undertaken for the publication of these rules when they first opened their session.

Recently, the Court had occasion to rule on this very same question. In Neri v. Senate Committee on
Accountability of Public Officers and Investigations,46 we said:
Fourth, we find merit in the argument of the OSG that respondent Committees likewise
violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in
accordance with the "duly published rules of procedure." We quote the OSGs
explanation:
The phrase "duly published rules of procedure" requires the Senate of every
Congress to publish its rules of procedure governing inquiries in aid of legislation
because every Senate is distinct from the one before it or after it. Since Senatorial
elections are held every three (3) years for one-half of the Senates membership, the
composition of the Senate also changes by the end of each term. Each Senate may
thus enact a different set of rules as it may deem fit. Not having published
its Rules of Procedure, the subject hearings in aid of legislation conducted by
the 14th Senate, are therefore, procedurally infirm.
Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion, reinforces this ruling with the
following rationalization:
The present Senate under the 1987 Constitution is no longer a continuing legislative body.
The present Senate has twenty-four members, twelve of whom are elected every three years
for a term of six years each. Thus, the term of twelve Senators expires every three years,
leaving less than a majority of Senators to continue into the next Congress. The 1987
Constitution, like the 1935 Constitution, requires a majority of Senators to "constitute a
quorum to do business." Applying the same reasoning inArnault v. Nazareno, the Senate
under the 1987 Constitution is not a continuing body because less than majority of the
Senators continue into the next Congress. The consequence is that the Rules of
Proceduremust be republished by the Senate after every expiry of the term of twelve
Senators.47
The subject was explained with greater lucidity in our Resolution48 (On the Motion for
Reconsideration) in the same case, viz.:
On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification.
Certainly, there is no debate that the Senate as an institution is "continuing," as it is not
dissolved as an entity with each national election or change in the composition of its
members. However, in the conduct of its day-to-day business the Senate of each Congress
acts separately and independently of the Senate of the Congress before it. The Rules of the
Senate itself confirms this when it states:
RULE XLIV
UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the session shall be taken up at the
next session in the same status.

All pending matters and proceedings shall terminate upon the expiration of
one (1) Congress, but may be taken by the succeeding Congress as if present for
the first time.
Undeniably from the foregoing, all pending matters and proceedings, i.e., unpassed bills and
even legislative investigations, of the Senate of a particular Congress are
considered terminated upon the expiration of that Congress and it is merely optional on the
Senate of the succeeding Congress to take up such unfinished matters, not in the same
status, but as if presented for the first time. The logic and practicality of such a rule is
readily apparent considering that the Senate of the succeeding Congress (which will typically
have a different composition as that of the previous Congress) should not be bound by the
acts and deliberations of the Senate of which they had no part. If the Senate is a continuing
body even with respect to the conduct of its business, then pending matters will not be
deemed terminated with the expiration of one Congress but will, as a matter of course,
continue into the next Congress with the same status.
This dichotomy of the continuity of the Senate as an institution and of the opposite nature of
the conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the
Senates main rules of procedure) states:
RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES
SEC. 136. At the start of each session in which the Senators elected in the preceding
elections shall begin their term of office, the President may endorse the Rules to the
appropriate committee for amendment or revision.
The Rules may also be amended by means of a motion which should be presented
at least one day before its consideration, and the vote of the majority of the Senators
present in the session shall be required for its approval.
RULE LII
DATE OF TAKING EFFECT
SEC. 137. These Rules shall take effect on the date of their adoption and shall
remain in force until they are amended or repealed.
Section 136 of the Senate Rules quoted above takes into account the new composition of
the Senate after an election and the possibility of the amendment or revision of the Rules at
the start of each session in which the newly elected Senators shall begin their term.
However, it is evident that the Senate has determined that its main rules are intended to be
valid from the date of their adoption until they are amended or repealed. Such language is
conspicuously absent from theRules. The Rules simply state "(t)hese Rules shall take effect
seven (7) days after publication in two (2) newspapers of general circulation." The latter does
not explicitly provide for the continued effectivity of such rules until they are amended or

repealed. In view of the difference in the language of the two sets of Senate rules, it cannot
be presumed that the Rules (on legislative inquiries) would continue into the next Congress.
The Senate of the next Congress may easily adopt different rules for its legislative inquiries
which come within the rule on unfinished business.
The language of Section 21, Article VI of the Constitution requiring that the inquiry be
conducted in accordance with the duly published rules of procedure is categorical. It is
incumbent upon the Senate to publish the rules for its legislative inquiries in each Congress
or otherwise make the published rules clearly state that the same shall be effective in
subsequent Congresses or until they are amended or repealed to sufficiently put public on
notice.
If it was the intention of the Senate for its present rules on legislative inquiries to be effective
even in the next Congress, it could have easily adopted the same language it had used in its
main rules regarding effectivity.
Respondents justify their non-observance of the constitutionally mandated publication by arguing
that the rules have never been amended since 1995 and, despite that, they are published in booklet
form available to anyone for free, and accessible to the public at the Senates internet web page. 49
The Court does not agree. The absence of any amendment to the rules cannot justify the Senates
defiance of the clear and unambiguous language of Section 21, Article VI of the Constitution. The
organic law instructs, without more, that the Senate or its committees may conduct inquiries in aid of
legislation only in accordance with duly published rules of procedure, and does not make any
distinction whether or not these rules have undergone amendments or revision. The constitutional
mandate to publish the said rules prevails over any custom, practice or tradition followed by the
Senate.
Justice Carpios response to the same argument raised by the respondents is illuminating:
The publication of the Rules of Procedure in the website of the Senate, or in pamphlet form
available at the Senate, is not sufficient under the Taada v. Tuvera ruling which requires
publication either in the Official Gazette or in a newspaper of general circulation. The Rules
of Procedure even provide that the rules "shall take effect seven (7) days after publication in
two (2) newspapers of general circulation," precluding any other form of publication.
Publication in accordance with Taada is mandatory to comply with the due process
requirement because the Rules of Procedure put a persons liberty at risk. A person who
violates the Rules of Procedure could be arrested and detained by the Senate.
The invocation by the respondents of the provisions of R.A. No. 8792, 50 otherwise known as the
Electronic Commerce Act of 2000, to support their claim of valid publication through the internet is all
the more incorrect. R.A. 8792 considers an electronic data message or an electronic document as
the functional equivalent of a written document only for evidentiary purposes.51 In other words, the
law merely recognizes the admissibility in evidence (for their being the original) of electronic data
messages and/or electronic documents.52 It does not make the internet a medium for publishing
laws, rules and regulations.

Given this discussion, the respondent Senate Committees, therefore, could not, in violation of the
Constitution, use its unpublished rules in the legislative inquiry subject of these consolidated cases.
The conduct of inquiries in aid of legislation by the Senate has to be deferred until it shall have
caused the publication of the rules, because it can do so only "in accordance with its duly published
rules of procedure."
Very recently, the Senate caused the publication of the Senate Rules of Procedure Governing
Inquiries in Aid of Legislation in the October 31, 2008 issues of Manila Bulletin and Malaya. While we
take judicial notice of this fact, the recent publication does not cure the infirmity of the inquiry sought
to be prohibited by the instant petitions. Insofar as the consolidated cases are concerned, the
legislative investigation subject thereof still could not be undertaken by the respondent Senate
Committees, because no published rules governed it, in clear contravention of the Constitution.
With the foregoing disquisition, the Court finds it unnecessary to discuss the other issues raised in
the consolidated petitions.
WHEREFORE, the petition in G.R. No. 170338 is DISMISSED, and the petition in G.R. No. 179275
is GRANTED. Let a writ of prohibition be issued enjoining the Senate of the Republic of the
Philippines and/or any of its committees from conducting any inquiry in aid of legislation centered on
the "Hello Garci" tapes.

ZALDY NUEZ, complainant, vs. ELVIRA CRUZ-APAO, respondent.


DECISION
PER CURIAM:

What brings our judicial system into disrepute are often the actuations of a few erring
court personnel peddling influence to party-litigants, creating the impression that
decisions can be bought and sold, ultimately resulting in the disillusionment of the
public. This Court has never wavered in its vigilance in eradicating the so-called bad
eggs in the judiciary. And whenever warranted by the gravity of the offense, the
supreme penalty of dismissal in an administrative case is meted to erring personnel.
[1]

The above pronouncement of this Court in the case of Mendoza vs.


Tiongson is applicable to the case at bar.
[2]

This is an administrative case for Dishonesty and Grave


Misconduct against Elvira Cruz-Apao (Respondent), Executive Assistant II of
the Acting Division Clerk of Court of the Fifteenth (15th) Division, Court of
Appeals (CA). The complaint arose out of respondents solicitation of One
Million Pesos (P1,000,000.00) from Zaldy Nuez (Complainant) in exchange for
[3]

a speedy and favorable decision of the latters pending case in the CA, more
particularly, CA-G.R. SP No. 73460 entitled PAGCOR vs. Zaldy Nuez.
Complainant initially lodged a complaint with the Action Center of the
Television program Imbestigador of GMA Network, the crew of which had
accompanied
him
to
the
Presidential
Anti-Organized
Crime
CommissionSpecial Projects Group (PAOCC-SPG) in Malacaang where he
filed a complaint for extortion against respondent. This led to the conduct of
an entrapment operation by elements of the Presidential Anti-Organized
Crime Task Force (PAOCTF) on 28 September 2004 at the Jollibee
Restaurant, 2nd Floor, Times Plaza Bldg., corner Taft and United Nations
Avenue, Manila, the place where the supposed hand-over of the money was
going to take place.
[4]

[5]

[6]

[7]

[8]

Respondents apprehension by agents of the PAOCTF in the course of the


entrapment operation prompted then CA Presiding Justice (PJ) Cancio C.
Garcia (now Supreme Court Justice) to issue Office Order No. 297-04CG (Order) which created an ad-hoc investigating committee (Committee).
The Committee was specifically tasked among others to conduct a thorough
and exhaustive investigation of respondents case and to recommend the
proper administrative sanctions against her as the evidence may warrant.
[9]

[10]

[11]

In accordance with the mandate of the Order, the Committee conducted


an investigation of the case and issued a Resolution dated 18 October 2004
where it concluded that a prima facie case of Dishonesty and Serious
Misconduct against respondent existed. The Committee thus recommended
respondents preventive suspension for ninety (90) days pending formal
investigation of the charges against her. On 28 January 2005, the Committee
submitted a Report to the new CA Presiding Justice Romeo A. Brawner with
its recommendation that respondent be dismissed from service.
[12]

[13]

[14]

Based on the hearings conducted and the evidence received by the


Committee, the antecedent facts are as follows:
Complainants case referred to above had been pending with the CA for
more than two years. Complainant filed an illegal dismissal case against
PAGCOR before the Civil Service Commission (CSC). The CSC ordered
complainants reinstatement but a writ of preliminary injunction and a
[15]

temporary restraining order was issued by the CA in favor of PAGCOR, thus


complainant was not reinstated to his former job pending adjudication of the
case. Desiring an expeditious decision of his case, complainant sought the
assistance of respondent sometime in July 2004 after learning of the latters
employment with the CA from her sister, Magdalena David. During their first
telephone conversation and thereafter through a series of messages they
exchanged via SMS, complainant informed respondent of the particulars of
his pending case. Allegedly, complainant thought that respondent would be
able to advise him on how to achieve an early resolution of his case.
[16]

[17]

[18]

However, a week after their first telephone conversation, respondent


allegedly told complainant that a favorable and speedy decision of his case
was attainable but the person who was to draft the decision was in return
asking for One Million Pesos (P1,000,000.00).
[19]

Complainant expostulated that he did not have that kind of money since
he had been jobless for a long time, to which respondent replied, Eh, ganoon
talaga ang lakaran dito, eh. Kung wala kang pera, pasensiya na.
Complainant then tried to ask for a reduction of the amount but respondent
held firm asserting that the price had been set, not by her but by the person
who was going to make the decision. Respondent even admonished
complainant with the words Wala tayo sa palengke iho! when the latter
bargained for a lower amount.
[20]

[21]

[22]

[23]

Complainant then asked for time to determine whether or not to pay the
money in exchange for the decision. Instead, in August of 2004, he sought the
assistance of Imbestigador. The crew of the TV program accompanied him
to PAOCCF-SPG where he lodged a complaint against respondent for
extortion. Thereafter, he communicated with respondent again to verify if the
latter was still asking for the money and to set up a meeting with her. Upon
learning that respondents offer of a favorable decision in exchange for One
Million Pesos (P1,000,000.00) was still standing, the plan for the entrapment
operation was formulated by Imbestigador in cooperation with the PAOCC.
[24]

[25]

[26]

[27]

On 24 September 2004, complainant and respondent met for the first time
in person at the 2nd Floor of Jollibee, Times Plaza Bldg., the place where the
entrapment operation was later conducted. Patricia Siringan (Siringan), a
[28]

researcher of Imbestigador, accompanied complainant and posed as his


sister-in-law. During the meeting, complainant clarified from respondent that
if he gave the amount of One Million Pesos (P1,000,000.00), he would get a
favorable decision. This was confirmed by the latter together with the
assurance that it would take about a month for the decision to come out.
Respondent also explained that the amount of One Million Pesos
(P1,000,000.00) guaranteed a favorable decision only in the CA but did not
extend to the Supreme Court should the case be appealed later.
[29]

[30]

[31]

When respondent was asked where the money will go, she claimed that it
will go to a male researcher whose name she refused to divulge. The
researcher was allegedly a lawyer in the CA Fifth (5th) Division where
complainant case was pending. She also claimed that she will not get any
part of the money unless the researcher decides to give her some.
[32]

[33]

Complainant tried once again to bargain for a lower amount during the
meeting but respondent asserted that the amount was fixed. She even
explained that this was their second transaction and the reason why the
amount was closed at One Million Pesos (P1,000,000.00) was because on a
previous occasion, only Eight Hundred Thousand Pesos (P800,000.00) was
paid by the client despite the fact that the amount had been pegged at One
Million Three Hundred Thousand Pesos (P1,300,000.00). Complainant then
proposed that he pay a down payment of Seven Hundred Thousand Pesos
(P700,000.00) while the balance of Three Hundred Thousand Pesos
(P300,000.00) will be paid once the decision had been released. However,
respondent refused to entertain the offer, she and the researcher having
learned their lesson from their previous experience for as then, the client no
longer paid the balance of Five Hundred Thousand Pesos (P500,000.00) after
the decision had come out.
[34]

[35]

[36]

Complainant brought along copies of the documents pertinent to his case


during the first meeting. After reading through them, respondent allegedly
uttered, Ah, panalo ka. The parties set the next meeting date at lunchtime on
28 September 2004 and it was understood that the money would be handed
over by complainant to respondent then.
[37]

[38]

On the pre-arranged meeting date, five (5) PAOCTF agents, namely: Capt.
Reynaldo Maclang (Maclang) as team leader, SPO1 Renato Banay (Banay),
PO1 Bernard Villena (Villena), PO1 Danny Feliciano, and PO2 Edgar delos
Reyes arrived at around 11:30 in the morning at Jollibee. Nuez and
Siringan arrived at past noon and seated themselves at the table beside the
one occupied by the two (2) agents, Banay and Villena. Complainant had with
him an unsealed long brown envelope containing ten (10) bundles of marked
money and paper money which was to be given to respondent. The
envelope did not actually contain the One Million Pesos (P1,000,000.00)
demanded by respondent, but instead contained paper money in
denominations of One Hundred Pesos (P100.00), Five Hundred Pesos
(P500.00) and One Thousand Pesos (P1,000.00), as well as newspaper cutouts. There were also ten (10) authentic One Hundred Peso (P100.00) bills
which had been previously dusted with ultra-violet powder by the PAOCTF.
The three other PAOCTF agents were seated a few tables away and there
were also three (3) crew members from Imbestigador at another table
operating a mini DV camera that was secretly recording the whole transaction.
[39]

[40]

[41]

[42]

[43]

[44]

[45]

Respondent arrived at around 1:00 p.m. She appeared very nervous and
suspicious during the meeting. Ironically, she repeatedly said that
complainant might entrap her, precisely like those that were shown
on Imbestigador. She thus refused to receive the money then and there.
What she proposed was for complainant and Siringan to travel with her in a
taxi and drop her off at the CA where she would receive the money.
[46]

[47]

[48]

[49]

More irony ensued. Respondent actually said that she felt there were
policemen around and she was afraid that once she took hold of the envelope
complainant proffered, she would suddenly be arrested and handcuffed. At
one point, she even said, Ayan o, tapos na silang kumain, bakit hindi pa sila
umaalis?, referring to Banay and Villena at the next table. To allay
respondents suspicion, the two agents stood up after a few minutes and went
near the staircase where they could still see what was going on.
[50]

[51]

[52]

Complainant, respondent and Siringan negotiated for almost one hour.


Complainant and Siringan bargained for a lower price but respondent
refused to accede. When respondent finally touched the unsealed envelope to
[53]

look at the money inside, the PAOCTF agents converged on her and invited
her to the Western Police District (WPD) Headquarters at United Nations
Avenue for questioning. Respondent became hysterical as a commotion
ensued inside the restaurant.
[54]

[55]

On the way to the WPD on board the PAOCTF vehicle, Banay asked
respondent why she went to the restaurant. The latter replied that she went
there to get the One Million Pesos (P1,000,000.00).
[56]

Respondent was brought to the PNP Crime Laboratory at the WPD where
she was tested and found positive for ultra-violet powder that was previously
dusted on the money. She was later detained at the WPD Headquarters.
[57]

At seven oclock in the evening of 28 September 2004, respondent called


Atty. Lilia Mercedes Encarnacion Gepty (Atty. Gepty), her immediate superior
in the CA at the latters house. She tearfully confessed to Atty. Gepty that she
asked for money for a case and was entrapped by police officers and the
media. Enraged at the news, Atty. Gepty asked why she had done such a
thing to which respondent replied, Wala lang maam, sinubukan ko lang baka
makalusot. Respondent claimed that she was ashamed of what she did and
repented the same. She also asked for Atty. Geptys forgiveness and help. The
latter instead reminded respondent of the instances when she and her coemployees at the CA were exhorted during office meetings never to commit
such offenses.
[58]

[59]

[60]

[61]

Atty. Gepty rendered a verbal report of her conversation with their


divisions chairman, Justice Martin S. Villarama. She reduced the report into
writing and submitted the same to then PJ Cancio Garcia on 29 September
2004. She also later testified as to the contents of her report to the
Committee.
[62]

[63]

During the hearing of this case, respondent maintained that what


happened was a case of instigation and not an entrapment. She asserted that
the offer of money in exchange for a favorable decision came not from her but
from complainant. To support her contention, she presented witnesses who
testified that it was complainant who allegedly offered money to anyone who
could help him with his pending case. She likewise claimed that she never

touched the money on 28 September 2004, rather it was Capt. Maclang who
forcibly held her hands and pressed it to the envelope containing the money.
She thus asked that the administrative case against her be dismissed.
This Court is not persuaded by respondents version. Based on the
evidence on record, what happened was a clear case of entrapment, and not
instigation as respondent would like to claim.
In entrapment, ways and means are resorted to for the purpose of
ensnaring and capturing the law-breakers in the execution of their criminal
plan. On the other hand, in instigation, the instigator practically induces the
would-be defendant into the commission of the offense, and he himself
becomes a co-principal.
[64]

In this case, complainant and the law enforcers resorted to entrapment


precisely because respondent demanded the amount of One Million Pesos
(P1,000,000.00) from complainant in exchange for a favorable decision of the
latters pending case. Complainants narration of the incidents which led to the
entrapment operation are more in accord with the circumstances that actually
transpired and are more credible than respondents version.
Complainant was able to prove by his testimony in conjunction with the
text messages from respondent duly presented before the Committee that the
latter asked for One Million Pesos (P1,000,000.00) in exchange for a
favorable decision of the formers pending case with the CA. The text
messages were properly admitted by the Committee since the same are now
covered by Section 1(k), Rule 2 of the Rules on Electronic Evidence which
provides:
[65]

Ephemeral electronic communication refers to telephone conversations, text messages


. . . and other electronic forms of communication the evidence of which is not
recorded or retained.
Under Section 2, Rule 11 of the Rules on Electronic Evidence, Ephemeral
electronic communications shall be proven by the testimony of a person who
was a party to the same or who has personal knowledge thereof . . . . In this
case, complainant who was the recipient of said messages and therefore had

personal knowledge thereof testified on their contents and import. Respondent


herself admitted that the cellphone number reflected in complainants
cellphone from which the messages originated was hers. Moreover, any
doubt respondent may have had as to the admissibility of the text messages
had been laid to rest when she and her counsel signed and attested to the
veracity of the text messages between her and complainant. It is also well to
remember that in administrative cases, technical rules of procedure and
evidence are not strictly applied. We have no doubt as to the probative value
of the text messages as evidence in determining the guilt or lack thereof of
respondent in this case.
[66]

[67]

[68]

Complainants testimony as to the discussion between him and respondent


on the latters demand for One Million Pesos (P1,000,000.00) was
corroborated by the testimony of a disinterested witness, Siringan, the
reporter of Imbestigador who was present when the parties met in person.
Siringan was privy to the parties actual conversation since she accompanied
complainant on both meetings held on 24 and 28 of September 2004 at
Jollibee.
Respondents evidence was comprised by the testimony of her daughter
and sister as well as an acquaintance who merely testified on how respondent
and complainant first met. Respondents own testimony consisted of bare
denials and self-serving claims that she did not remember either the
statements she herself made or the contents of the messages she sent.
Respondent had a very selective memory made apparent when clarificatory
questions were propounded by the Committee.
When she was asked if she had sent the text messages contained in
complainants cellphone and which reflected her cellphone number,
respondent admitted those that were not incriminating but claimed she did not
remember those that clearly showed she was transacting with complainant.
Thus, during the 17 November 2004 hearing, where respondent was
questioned by Justice Salazar-Fernando, the following transpired:
Q: After reading those text messages, do you remember having made those
text messages?

(Respondent)
A: Only some of these, your honors.
Justice Salazar-Fernando: Which one?
A: Sabi ko po magpunta na lang sila sa office. Yung nasa bandang unahan
po, your Honors.
Q: What else?
A: Tapos yung sabi ko pong pagpunta niya magdala siya ng I.D. or isama
niya sa kanya si Len David.
Q: Okay, You remember having texted Zaldy Nuez on September 23, 2004 at
1309 which was around 1:09 in the afternoon and you said di me pwede
punta na lang kayo dito sa office Thursday 4:45 p.m. Room 107
Centennial Building.
A: Yes, your Honors.
Q: And on September 23, 2004 at 1731 which was around 5:31 in the
afternoon you again texted Zaldy Nuez and you said Sige bukas nang
tanghali sa Times Plaza, Taft Avenue, corner U.N. Avenue. Magdala ka
ng I.D. para makilala kita o isama mo si Len David.
A: Opo, your Honors.
Q: How about on September 23 at 5:05 in the afternoon when you said Di
pwede kelan mo gusto fixed price na iyon.
A: I dont remember that, your Honors.
Q: Again on September 23 at 5:14 p.m. you said Alam mo di ko iyon price
and nagbigay noon yung gagawa. Wala ako doon. You dont also
remember this?
A: Yes, your Honors.

Q: September 27 at 1:42 p.m. Oo naman ayusin nyo yung hindi halatang pera.
You also dont remember that?
A: Yes Your Honors.
Q: September 27 at 1:30 in the afternoon, Di na pwede sabi sa akin.
Pinakaiusapan ko na nga ulit iyon. You dont remember that?
A: No, your Honors.

[69]

Respondent would like this Court to believe that she never had any
intention of committing a crime, that the offer of a million pesos for a favorable
decision came from complainant and that it was complainant and the law
enforcers who instigated the whole incident.
Respondent thus stated that she met with complainant only to tell the latter
to stop calling and texting her, not to get the One Million Pesos
(P1,000,000.00) as pre-arranged.
This claim of respondent is preposterous to say the least. Had the offer of
a million pesos really come from complainant and had she really intended to
stop the latter from corrupting her, she could have simply refused to answer
the latters messages and calls. This she did not do. She answered those calls
and messages though she later claimed she did not remember having sent
the same messages to complainant. She could also have reported the matter
to the CA Presiding Justice, an action which respondent admitted during the
hearing was the proper thing to do under the circumstances. But this course
of action she did not resort to either, allegedly because she never expected
things to end this way.
[70]

[71]

While claiming that she was not interested in complainants offer of a


million pesos, she met with him not only once but twice, ostensibly, to tell the
latter to stop pestering her. If respondent felt that telling complainant to stop
pestering her would be more effective if she did it in person, the same would
have been accomplished with a single meeting. There was no reason for her
to meet with complainant again on 28 September 2004 unless there was
really an understanding between them that the One Million Pesos

(P1,000,000.00) will be handed over to her then. Respondent even claimed


that she became afraid of complainant when she learned that the latter had
been dismissed by PAGCOR for using illegal drugs. This notwithstanding,
she still met with him on 28 September 2004.
[72]

Anent complainants narration of respondents refusal to reduce the amount


of One Million Pesos (P1,000.000.00) based on the lesson learned from a
previous transaction, while admitting that she actually said the same,
respondent wants this Court to believe that she said it merely to have
something to talk about. If indeed, respondent had no intention of committing
any wrongdoing, it escapes the Court why she had to make up stories merely
to test if complainant could make good on his alleged boast that he could
come up with a million pesos. It is not in accord with ordinary human
experience for an honest government employee to make up stories that would
make party-litigants believe that court decisions may be bought and sold.
Time and again this Court has declared, thus:
[73]

Everyone in the judiciary bears a heavy burden of responsibility for the proper
discharge of his duty and it behooves everyone to steer clear of any situations in
which the slightest suspicion might be cast on his conduct. Any misbehavior on his
part, whether true or only perceived, is likely to reflect adversely on the
administration of justice.
[74]

Respondent having worked for the government for twenty four (24) years,
nineteen (19) of which have been in the CA, should have known very well
that court employees are held to the strictest standards of honesty and
integrity. Their conduct should at all times be above suspicion. As held by this
Court in a number of cases, The conduct or behavior of all officials of an
agency involved in the administration of justice, from the Presiding Judge to
the most junior clerk, should be circumscribed with the heavy burden of
responsibility. Their conduct must, at all times be characterized by among
others, strict propriety and decorum in order to earn and maintain the respect
of the public for the judiciary.
[75]

[76]

[77]

Respondents actuations from the time she started communicating with


complainant in July 2004 until the entrapment operation on 28 September
2004 show a lack of the moral fiber demanded from court employees.

Respondents avowals of innocence notwithstanding, the evidence clearly


show that she solicited the amount of One Million Pesos (P1,000,000.00) from
complainant in exchange for a favorable decision. The testimony of Atty.
Gepty, the recipient of respondents confession immediately after the
entrapment operation, unmistakably supports the finding that respondent did
voluntarily engage herself in the activity she is being accused of.
Respondents solicitation of money from complainant in exchange for a
favorable decision violates Canon I of the Code of Conduct for Court
Personnel which took effect on 1 June 2004 pursuant to A.M. No. 03-06-13SC. Sections 1 and 2, Canon I of the Code of Conduct for Court Personnel
expressly provide:
SECTION 1. Court personnel shall not use their official position to secure
unwarranted benefits, privileges or exemption for themselves or for others.
SECTION 2. Court personnel shall not solicit or accept any gift, favor or benefit
based on any explicit or implicit understanding that such gift, favor or benefit
shall influence their official actions. (Underscoring supplied)
It is noteworthy that the penultimate paragraph of the Code of Conduct for
Court Personnel specifically provides:
INCORPORATION OF OTHER RULES
SECTION 1. All provisions of the law, Civil Service rules, and issuances of the
Supreme Court governing the conduct of public officers and employees applicable to
the judiciary are deemed incorporated into this Code.
By soliciting the amount of One Million Pesos (P1,000,000.00) from
complainant, respondent committed an act of impropriety which immeasurably
affects the honor and dignity of the judiciary and the peoples confidence in it.
In the recent case of Aspiras vs. Abalos, complainant charged
respondent, an employee of the Records Section, Office of the Court
Administrator (OCA), Supreme Court for allegedly deceiving him into giving
her money in the total amount of Fifty Two Thousand Pesos (P52,000.00) in
exchange for his acquittal in a murder case on appeal before the Supreme
[78]

Court. It turned out that respondents representation was false because


complainant was subsequently convicted of murder and sentenced to suffer
the penalty of reclusion perpetua by the Supreme Court.
[79]

The Supreme Court en banc found Esmeralda Abalos guilty of serious


misconduct and ordered her dismissal from the service. This Court aptly held
thus:
In Mirano vs. Saavedra, this Court emphatically declared that a public servant must
exhibit at all times the highest sense of honesty and integrity. The administration of
justice is a sacred task, and by the very nature of their duties and responsibilities, all
those involved in it must faithfully adhere to, hold inviolate, and invigorate the
principle that public office is a public trust, solemnly enshrined in the Constitution.
[80]

[81]

Likewise, in the grave misconduct case against Datu Alykhan T.


Amilbangsa of the Sharia Circuit Court, Bengo, Tawi-Tawi, this Court stated:
[82]

No position demands greater moral righteousness and uprightness from the occupant
than the judicial office. Those connected with the dispensation of justice bear a heavy
burden of responsibility. Court employees in particular, must be individuals of
competence, honesty and probity charged as they are with safeguarding the integrity
of the court . . . . The High Court has consistently held that persons involved in the
administration of justice ought to live up to the strictest standards of honesty and
integrity in the public service. He should refrain from financial dealings which would
interfere with the efficient performance of his duties. The conduct required of court
personnel must always be beyond reproach.
[83]

[84]

The following pronouncement of this Court in the case of Yrastorza, Sr. vs.
Latiza, Court Aide, RTC Branch 14 Cebu City is also worth remembering:
[85]

Court employees bear the burden of observing exacting standards of ethics and
morality. This is the price one pays for the honor of working in the judiciary. Those
who are part of the machinery dispensing justice from the lowliest clerk to the
presiding judge must conduct themselves with utmost decorum and propriety to
maintain the publics faith and respect for the judiciary. Improper behavior exhibits not
only a paucity of professionalism at the workplace but also a great disrespect to the

court itself. Such demeanor is a failure of circumspection demanded of every public


official and employee.
[86]

In view of the facts narrated above and taking into account the applicable
laws and jurisprudence, the Committee in their Report recommended that
respondent be dismissed from government service for GRAVE MISCONDUCT
and violation of Sections 1 and 2, Canon 1 of the Code of Conduct for Court
Personnel.
[87]

[88]

Finding the Committees recommendation to be supported by more than


substantial evidence and in accord with the applicable laws and jurisprudence,
the recommendation is well taken.
WHEREFORE, premises considered, respondent Elvira Cruz-Apao is
found GUILTY of GRAVE MISCONDUCT and violation of SECTIONS 1 and 2
of the CODE OF CONDUCT FOR COURT PERSONNEL and is accordingly
DISMISSED from government service, with prejudice to re-employment in any
branch, instrumentality or agency of the government, including governmentowned and controlled corporations. Her retirement and all benefits except
accrued leave credits are hereby FORFEITED.

ELLA M. BARTOLOME, Complainant,


vs.
ROSALIE B. MARANAN, COURT STENOGRAPHER III, REGIONAL TRIAL COURT, BRANCH 20,
IMUS, CAVITE, Respondent.
DECISION
PER CURIAM:
This administrative matter started through the sworn affidavit complaint in the vernacular, dated
December 16, 2009, that Ella M. Bartolome (complainant) filed against Rosalie B. Maranan
[respondent, Court Stenographer III, Regional Trial Court (RTC), Branch 20, Imus, Cavite], charging
her with extortion, graft and corruption, gross misconduct and conduct unbecoming of a court
employee.
1

The complainant alleged that the respondent asked money from her in the amount of P200,000.00,
which was later reduced to P160,000.00, to facilitate the filing of her case for annulment of marriage.
She further alleged that the respondent undertook to have the case decided in her favor without the
need of court appearances during the proceedings of the case. For a clear and complete picture of

the accusations against the respondent, we quote verbatim the pertinent portions of the
complainants narration of the incidents that gave rise to the filing of the present administrative
complaint
xxxx
2. Na noong October 21, 2009 nakilala ko si ROSALIE MARANAN na isang stenographer sa
Regional Trial Court ng Imus, Cavite. Nasabihan ko siya ng aking kagustuhan na magsampa ng
annulment of marriage case. Agad niya akong inalok at pinangakuan na kaya niyang ipasok ang
aking annulment case sa RTC, Br. 20, Imus, Cavite kung saan siya nagtratrabaho. Noong una ang
hinihingi niya sa akin ay halagang TWO HUNDRED THOUSAND PESOS (P200,000.00) pero
humingi ako sakanya ng discount at pumayag siya sa ONE HUNDRED SIXTY THOUSAND PESOS
(P160,000.00). Ako po ay naengganyo na magtiwala sa kanya dahil nangako siya na siya na ang
bahala sa lahat. May kausap na daw siyang abogado na pipirma sa petisyon koat di ko na daw
kailangan pang umappear sa korte. Sinabi niya na malakas daw siya sa judge at sa fiscal at siya
lang daw ang pinapayagan na magpasok ng mga aaregluhin na kaso sa kanilang korte. Sinabi niya
din na kasama na sa P160,000.00 ang para sa judge at sa fiscal kaya siguradong maaaprubahan
ang aking annulment case sa mabilis na panahon. Kasama po ng Affidavit Complaint na ito ang
transcript at ang SIM Carday aking ipadadala kapag ako ay makasigurado na ang Korte Suprema ay
poprotektahan ang mga ebidensya laban kay MARANAN sapagkat rito lahat nakatagon (sic) ang
mga text messages at nakarecord lahat ng calls nitong si ROSALIE MARANAN sa akin na
nagpapatunay ng panghihingi niya sa akin ng pera at pangako na aaregluhin niya ang aking
annulment of marriage case. Ang cellphone number po na nagaappear dito sa SIM ay kay
ROSALINA MARANAN, ang numero niya ay 09175775982. Maaaring nagpalit na ng numero ang
inirereklamo ko kung kayat maganda rin na ipag-utos ang pag-alam ng detalye mula sa Globe
Telecoms kung saan post-paid subscriber ang may-ari ng numero na iyan. [Emphasis supplied]
To put an end to the respondents extortion activities, the complainant decided to report the matter to
the police authorities. During the entrapment operation conducted by police officers of Imus Police
Station, the respondent was apprehended inside the premises of the RTC, Branch 20, Imus, Cavite,
in the act of receiving the money from the complainant.
In support of her allegations, the complainant attached to her affidavit-complaint the transcribed
electronic communications (text messages) between her and the respondent; a copy of an
Electronic Psychiatric History form given to her by the respondent for her to accomplish in filing the
petition for annulment of marriage; a copy of the Imus Police Station Blotter showing that the
respondent was apprehended during the entrapment operation conducted by police officers of Imus
Police Station on November 11, 2009 at 2:40 p.m.; and a versatile compact disc (VCD) containing
the video taken during the entrapment operation conducted against the respondent.
2

The Court, in a 1st Indorsement dated March 19, 2010, required the respondent to comment onthe
complaint against her.
6

In her Comment dated May 27, 2010, the respondent denied the accusations against her. She
alleged her belief that Bartolome is a fictitious name as the affidavit-complaint does not indicate the
complainants exact address. She asserted that her detention at Imus Police Station does not prove
7

her culpability since no actual criminal charges were filed against her. She claimed that the lapse of
six (6) months from the time of the alleged incident indicates that the complaint is pure and simple
harassment orchestrated by a lawyer or litigant who has a grudge against her and who wants to
publiclybesmirch her reputation. In support of her defense, the respondent mentioned that even
Judge Fernando L. Felicen (Judge Felicen), Presiding Judge of RTC, Branch 20, Imus, Cavite
interceded for her release from detention.
On July 29, 2010, the complainant sent a letter to the Office of the Court Administrator
(OCA), without indicating her address, alleging that she has to constantly change residence
because unidentified persons had been seen in their neighborhood asking questions about her. She
has also been receiving text messages from the respondent telling her that her complaint would only
be dismissed because she knows people in the Supreme Court. The respondent also threatened
retaliation against her after the case is terminated. The complainant further claimed that the pieces
of evidence she submitted are sufficient to prove the respondents anomalous activities, and prayed
for the immediate resolution of her complaint.
8

Based on the complainants pleadings and evidence, the OCA, (through then Deputy Court
Administrator Nimfa C. Vilches and OCA Chief of Legal Office Wilhelmina D. Geronga) submitted its
Report to the Court dated May 9, 2011, finding enough evidence to prove the respondents
involvement in anomalous activities and recommending that
9

1) OCA IPI No. 10-3352-P be RE-DOCKETED as a regular administrative matter;


2) respondent Rosalie B. Maranan, Court Stenographer III, Regional Trial Court, Branch20,
Imus, Cavite, be found GUILTY of Grave Misconduct and Conduct Prejudicial to the Best
Interest of the Service; and
3) respondent Maranan be immediately DISMISSED from the service with forfeiture of
retirement benefits except her accrued leave credits, and withperpetual disqualification from
employment in any government agencies or instrumentalities, including government owned
and controlled corporations.
In a Resolution dated September 5, 2011, the Court required the parties to manifest whether they
were willing to submit their case for resolution on the basis of the pleadingsfiled. The respondent
filed her Manifestation dated November 17, 2011 submitting the case for resolution by the Court.
She reiterated her complete innocence and "vigorous" and "vehement" denial ofthe allegations
against her. She insisted that the present complaint against her is plain and simple harassment and
a vexatious suit by the complainant who either has a grudge against her or must have been used by
another person with a grudge against her. All she did was tosecure the services of a lawyer at the
complainants request; this act, she claimed, does not constitute graft and corruption, gross
misconduct, conduct unbecoming of a court employee and extortion.
10

11

The complainant did not respond to our September 5, 2011 Resolution as it was returned unserved
on her. Wenevertheless considered the case submitted for resolution considering her letter of July
16, 2010 praying for the immediate resolution of her complaint.

In our Internal Resolution dated December 7, 2011, we resolved to refer the complaint to the OCA
for evaluation, report and recommendation.
12

The OCA responded through its Memorandum of July 16, 2012, finding that the pieces of evidence
on record establish the guilt of the respondent on the charges of Gross Misconduct and Conduct
Prejudicial to the Best Interest of the Service filed against her. It recommended that the respondent
be found guilty of the offenses charged and be dismissed from the service, with forfeiture of
retirement benefits except her accrued leave credits and with perpetual disqualification from
employment in any government agency.
13

The Court fully agrees with the OCAs recommendation.


The respondents bare denial cannot overcome the evidence supporting the complainants
accusation that she demanded money on the promise that she would facilitate the annulment of her
(complainants) marriage. The respondents actions from the time the complainant started
communicating with her on October 21, 2009 and thereafter through a series of messages they
exchanged via SMS, until the entrapment operation on November 11, 2009, showed that the
complaint is indeed meritorious. The respondents text messages sent to the complainant
corroborate that she promised to expedite in exchange for a monetary consideration
ofP160,000.00 and that she would provide the lawyer who would file the annulment case the
complainants annulment case once it is filed:
14

15

21/19/09 8:40pm
Sino po to
21/10/09 8:53pm
Sino nagrefer sayo sakin ano pangalan?
21/10/09 8:54pm
San mo nakuha # ko
21/10/09 9:05pm
Ako rin magbibigay lawyer sayo
21/10/09 9:13pm
D kaba tlaga makakatawag ngayon
21/10/09 9:18pm
Ako n lang tatawag sayo kc mahirap ang txt lang

21/10/09 9:24pm
Tawag n lng ako ha
21/10/09 9:49pm
Natitiwala ako sayo ha dahil hindi lahat pinagbibigyan namin. Sally n lang tawag mo sakin
nagtataka lng kc ako kanina kc buong buong buo yung txt ng name ko e.
21/10/09 9:51pm
Ay sorry mali pala sabi ko sayo 160k pala singil namin
22/10/09 10:05am
Gud am. Ano pwede k bukas
22/10/09 10:25am
ls txt bak naghihintay po kme
22/10/09 10:51am
Bukas lng available si atty
22/10/09 10:56am
Sana kung makakagawa ka daw paraan bukas kahit 40k n lng muna down tapos 3pm bukas
22/10/09 11:04am
Ok pero d kita pilipilit ha nasayopa din and decision yan ang sakin lng kc nagmamadali k at
tsaka yun ang free time ng lawyer ha
22/10/09 11:11am
Ella pakihusto mo n daw pala 50k at ibabayad daw mua sa psychiatrist at osg kahit sa
susunod n lng daw yung sa kanya
22/10/09 1:09pm
The complainant described the respondent as an influence peddler in the courts of Imus, Cavite who
acts as a conduit to judges, prosecutors and private law practitioners.
In her comment to the complaint,the respondent admitted that "she suggested to the complainant the
name of a lawyer friend, Atty. Renante C. Bihasa (Atty. Bihasa), and forwarded to her the cell phone

number of this lawyer so that theycould discuss the case." While she was in detention at Imus Police
Station, she called Atty. Bihasa, who told her that he was on his way and assured her that he had
already asked his lawyer friends to assist her. Atty. Bihasa arrived at about five oclock in the
afternoon. As it was already beyond office hours, she was told by Atty. Bihasa of the possibility that
she would be detained pending investigation. Atty. Bihasa returned the following day and was joined
by Judge Felicen and her officemates. Judge Feliceninterceded in her behalf that she begiven
permission by the police officers to leave her detention in order to take a bath and change clothes.
She was granted permission, with the full guaranty of Judge Felicen that she would return.
16

In an affidavit dated May 28, 2010, Atty. Bihasa corroborated the respondents allegations. In his
affidavit, he narrated that upon receiving a call from the respondent that she was being detained, he
immediately called up two (2) of his lawyer friends based at Imus, Atty. Wilfredo P. Saquilayan and
Atty. Jose Emmanuel Montoya, to assist the respondent. As he arrived at Imus Police Station at
around past four oclock in the afternoon, he told the respondent of the probability of her detention
until formal charges were filed against her. According to him, "[he] took it upon [himself] to assist[the
respondent] on that date and accompanied her while the police officers of Imus PNP were doing
their routine work on suspects."
17

Atty. Bihasa further narrated thaton the next day at about five oclock in the afternoon, he went
backto Imus Police Station to wait for the complainant. After a few hours, the respondents coworkers, including Judge Felicen arrived. They waited for the complainant until seven oclock in the
evening but she failed to come. Only the complainants lawyer arrived who informed the police
investigator that the complainant cannot come out of fear because of the death threats she
received.
18

The concern that Atty. Bihasa and Judge Felicen showed to the respondent while under detention at
Imus PNP Station gives rise to the suspicion that they have knowledge and tolerate the respondents
anomalous activities. The respondents text messages to the complainant support this suspicion:
19

At tsaka alam mo naman nakailang appointment n tayo sa abogado hiyang hiya nga ako
kahapon e
7/11/09 3:13pm
Tawagan ko muna si judge kung pwede pa kami tumanggap hanggang wed
7/11/09 3:15pm
Try ko lng
7/11/09 3:25pm
Hanggang Tuesday na lg tayo after nun nxt year na. Yan ang sabi
7/11/09 3:28pm

Sayang kc ang haba n ng time mo dp natuloy sabi ko naman sayo e kapag inabot ng
naghigpit dn pwede none appearance. Yun nagan nagpatulong sakin kahapon lng tumawag
yun d sana nagka sabay n kayo
7/11/09 3:59pm
Ok po mit po tayo bukas 10 am sinabi ko napo kay atty. Tnx po. See you po
Ephemeral electronic communications are now admissible evidence, subject to certain conditions.
"Ephemeral electronic communication" refers to telephone conversations, text messages, chatroom
sessions, streaming audio, streaming video, and other electronic forms of communication the
evidence of which is not recorded or retained. It may be proven by the testimony of a person who
was a party to the communications or has personal knowledge thereof. In the present case, we
have no doubt regarding the probative value of the text messages as evidence in considering the
present case. The complainant, who was the recipient of the text messages and who therefore has
personal knowledge of these text messages, identified the respondent as the sender through
cellphone number 09175775982. The respondent herself admitted that her conversations with the
complainant had been thru SMS messaging and thatthe cellphone number reflected in the
complainants cellphone from which the text messages originated was hers. She confirmed that it
was her cellphone number during the entrapment operation the Imus Cavite Police conducted
20

21

22

Sally:
Halika dito sa office, sa clerk of court. Pupunta ka ngayon? O sige, sige, pupunta ka ngaun?
Ah sige OK, salamat! Ang number ko
Lalaki:
Ibigay ko sa kanya?
Sally:
Oo, ang number ko ay 09175775982, ok thank you.
The complainant submitted two (2) copies of the VCD containing pictures taken during the
entrapment conducted by the Imus Cavite Police on November 11, 2009.
23

24

Under Section 1, Rule 11 of A.M. No. 01-7-01-SC, audio, photographic and video evidence of
events, acts or transactions shall be admissible provided it shall be shown, presented or displayed to
the court and shall be identified, explained or authenticated by the person who made the recording
or by some other person competent to testify on the accuracy thereof.
We viewed the VCD and the video showed the actual entrapment operation. The complainant herself
certified that the video and text messages are evidence of her complaint against the respondent,
"Sapat at malinaw ang lahat ng ebidensya na kasama ng aking reklamo na nagpapatunay na totoo
lahat ang nakasaad sa aking reklamo. Kitang kita sa video at sa mga text messages niya ang

kanyang modus operandi at paggamit niya ng pwesto sa gobyerno upang makapanghingi ng


malaking pera sa mga inosenteng tao." It is also well to remember that in administrative cases,
technical rules of procedure and evidence are not strictly applied. A.M. No. 01-7-01-SC specifically
provides that these rules shall be liberally construed to assist the parties in obtaining a just,
expeditious and inexpensive determination of cases.
25

The Court totally agrees with the OCAs finding that the respondent is guilty of grave misconduct and
conduct prejudicial to the best interest of the service. The respondents assertion that Bartolome is a
fictitious name because the complainant has not stated in her complaint her exact address is
preposterous in light of the evidence of direct personal and text message contacts between them. In
the absence of supporting evidence, the claim that the complaint against her is pure and simple
harassment orchestrated by persons with grudge against her, is mere conjectural allegation.
As a public servant, nothing less than the highest sense of honesty and integrity is expected of the
respondent at all times. She should be the personification of the principle that public office is a
public trust. The respondent unfortunately fell extremely short of the standards that should have
governed her life as a public servant. By soliciting money from the complainant, she committed a
crimeand an act of serious impropriety that tarnished the honor and dignity of the judiciary and
deeply affected the peoples confidence in it. She committed an ultimate betrayal of the duty to
uphold the dignity and authority of the judiciary by peddling influence to litigants, thereby creating the
impression that decision can be bought and sold. The Court has never wavered in its vigilance in
eradicating the socalled "bad-eggs" in the judiciary. We have been resolute in our drive to discipline
and, if warranted, to remove from the service errant magistrates, employees and even Justices of
higher collegiate appellate courts for any infraction that gives the Judiciary a bad name. To stress
our earnestness in this pursuit, we have, in fact, been unflinching in imposing discipline on errant
personnel or in purging the ranks of those undeserving to remain in the service.
26

27

28

29

30

WHEREFORE, the Court finds respondent Rosalie B. Maranan, Court Stenographer Ill, Regional
Trial Court, Branch 20, Imus, Cavite, GUILTY of Grave Misconduct and Conduct Prejudicial to the
Best Interest of the Service and is accordingly DISMISSED from the service, with prejudice to reemployment in any government agency including government-owned or controlled corporations. Her
retirement benefits, except accrued leave credits are ordered forfeited. This decision shall be
immediately executory.
1wphi1

The Court further Resolves to REQUIRE Judge Fernando L. Felicen, Regional Trial Court, Branch
20, Imus, Cavite and Atty. Renante C. Bihasa, to file their Comments on their alleged participation in
the anomalous activities of the respondent, within fifteen ( 15) days from notice. This directive is
without prejudice to the investigation of all or selected employees and officials of the Branch, who
may have participated in anomalous transactions relating to annulment of marriage.
The Office of the Court Administrator is hereby directed to submit to this Court, within thirty (30)
days, a list of the annulment of marriage decisions of Judge Fernando L. Felicen for the past ten (10)
years, indicating therein the judgments made and the names of participating lawyers and
prosecutors.

The Office of the Chief Attorney shall analyze the submitted data, including the records of and the
proceedings in the listed cases, and recommend to the Court the actions it should take in the event a
pattern of corruption involving annulment of marriage cases emerges. The Office of the Chief
Attorney is given ninety (90) days from receipt of the Office of the Court Administrator's list, within
which to submit its recommendations to the Court.
The Office of the Court Administrator shall likewise refer this administrative case and its records to
the Ombudsman for whatever action it may take within its jurisdiction.

MAYOR EMMANUEL L. MALIKSI, Petitioner,


vs.
COMMISSION ON ELECTIONS AND HOMER T. SAQUILAVAN, Respondents.
RESOLUTION
BERSAMIN, J.:
The Court hereby resolves the Extremely Urgent Motion for Reconsideration tiled by petitioner
Emmanuel L. Maliksi against the Court's decision promulgated on March 12, 2013, dismissing his
petition for certiorari assailing the resolution dated September 14, 2012 of the Commission on
Elections (COMELEC) En Bane that sustained the declaration of respondent Homer T. Saquilayan
as the duly elected Mayor of Imus, Cavite.
For clarity, we briefly restate the factual antecedents.
During the 2010 Elections, the Municipal Board of Canvassers proclaimed Saquilayan the winner for
the position of Mayor of Imus, Cavite. Maliksi, the candidate who garnered the second highest
number of votes, brought an election protest in the Regional Trial Court (RTC) in Imus, Cavite
alleging that there were irregularities in the counting of votes in 209 clustered precincts.
Subsequently, the RTC held a revision of the votes, and, based on the results of the revision,
declared Maliksi as the duly elected Mayor of Imus commanding Saquilayan to cease and desist
from performing the functions of said office. Saquilayan appealed to the COMELEC. In the
meanwhile, the RTC granted Maliksis motion for execution pending appeal, and Maliksi was then
installed as Mayor.
In resolving the appeal, the COMELEC First Division, without giving notice to the parties, decided to
recount the ballots through the use of the printouts of the ballot images from the CF cards. Thus, it
issued an order dated March 28, 2012 requiring Saquilayan to deposit the amount necessary to
defray the expenses for the decryption and printing of the ballot images. Later, it issued another
order dated April 17, 2012 for Saquilayan to augment his cash deposit.
On August 15, 2012, the First Division issued a resolution nullifying the RTCs decision and declaring
Saquilayan as the duly elected Mayor.1

Maliksi filed a motion for reconsideration, alleging that he had been denied his right to due process
because he had not been notified of the decryption proceedings. He argued that the resort to the
printouts of the ballot images, which were secondary evidence, had been unwarranted because
there was no proof that the integrity of the paper ballots had not been preserved.
On September 14, 2012, the COMELEC En Banc resolved to deny Maliksis motion for
reconsideration.2
Maliksi then came to the Court via petition for certiorari, reiterating his objections to the decryption,
printing, and examination of the ballot images without prior notice to him, and to the use of the
printouts of the ballot images in the recount proceedings conducted by the First Division.
1wphi1

In the decision promulgated on March 12, 2013, the Court, by a vote of 8-7, dismissed Maliksis
petition for certiorari. The Court concluded that Maliksi had not been denied due process because:
(a) he had received notices of the decryption, printing, and examination of the ballot images by the
First Division referring to the orders of the First Division directing Saquilayan to post and augment
the cash deposits for the decryption and printing of the ballot images; and (b) he had been able to
raise his objections to the decryption in his motion for reconsideration. The Court then pronounced
that the First Division did not abuse its discretion in deciding to use the ballot images instead of the
paper ballots, explaining that the printouts of the ballot images were not secondary images, but
considered original documents with the same evidentiary value as the official ballots under the Rule
on Electronic Evidence; and that the First Divisions finding that the ballots and the ballot boxes had
been tampered had been fully established by the large number of cases of double-shading
discovered during the revision.
In his Extremely Urgent Motion for Reconsideration, Maliksi raises the following arguments, to wit:
I.
WITH ALL DUE RESPECT, THIS HONORABLE SUPREME COURT EN BANC GRAVELY ERRED
IN DISMISSING THE INSTANT PETITION DESPITE A CLEAR VIOLATION OF PETITIONERS
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW CONSIDERING THAT DECRYPTION,
PRINTING AND EXAMINATION OF THE DIGITAL IMAGES OF THE BALLOTS, WHICH IS THE
BASIS FOR THE ASSAILED 14 SEPTEMBER 2012 RESOLUTION OF THE PUBLIC
RESPONDENT, WHICH IN TURN AFFIRMED THE 15 AUGUST 2012 RESOLUTION OF THE
COMELEC FIRST DIVISION, WERE DONE INCONSPICUOUSLY UPON A MOTU PROPRIO
DIRECTIVE OF THE COMELEC FIRST DIVISION SANS ANY NOTICE TO THE PETITIONER, AND
FOR THE FIRST TIME ON APPEAL.
II.
WITH ALL DUE RESPECT, THIS HONORABLE SUPREME COURT EN BANC GRAVELY ERRED
IN UPHOLDING THE COMELEC FIRST DIVISIONS RULING TO DISPENSE WITH THE
PHYSICAL BALLOTS AND RESORT TO THEIR DIGITAL IMAGES NOTWITHSTANDING THE
FACT THAT THE BALLOTS ARE THE BEST AND MOST CONCLUSIVE EVIDENCE OF THE
VOTERS WILL, AND THAT BALLOT IMAGES CAN BE RESORTED TO ONLY IF THE OFFICIAL

BALLOTS ARE LOST OR THEIR INTEGRITY WAS COMPROMISED AS DETERMINED BY THE


RECOUNT/REVISION COMMITTEE, CIRCUMSTANCES WHICH ARE WANTING IN THIS CASE,
AND IN FACT THE INTEGRITY OF THE BALLOT BOXES AND ITS CONTENTS WAS
PRESERVED AND THE ISSUE OF TAMPERING WAS ONLY BELATEDLY RAISED BY THE
PRIVATE RESPONDENT AFTER THE REVISION RESULTS SHOWED THAT HE LOST.
III.
WITH ALL DUE RESPECT, IT IS THE HUMBLE SUBMISSION OF THE PETITIONER-MOVANT
THAT THE 12 MARCH 2013 RESOLUTION ISSUED BY THE HONORABLE SUPREME COURT EN
BANC IS NULL AND VOID AB INITIO AND THEREFORE OF NO FORCE AND EFFECT, FOR
HAVING BEEN PROMULGATED DESPITE THE ABSENCE OF HONORABLE SUPREME COURT
JUSTICE JOSE PORTUGAL PEREZ AT THE TIME OF THE DELIBERATION AND VOTING ON
THE 12 MARCH 2013 RESOLUTION IN THE INSTANT CASE.3
Maliksi insists: (a) that he had the right to be notified of every incident of the proceedings and to be
present at every stage thereof; (b) that he was deprived of such rights when he was not informed of
the decryption, printing, and examination of the ballot images by the First Division; (c) that the March
28, 2012 and April 17, 2012 orders of the First Division did not sufficiently give him notice inasmuch
as the orders did not state the date, time, and venue of the decryption and printing of the ballot
images; and (d) that he was thus completely deprived of the opportunity to participate in the
decryption proceedings.
Maliksi contends that the First Divisions motu proprio directive for the decryption, printing, and
examination of the ballot images was highly irregular. In this regard, he asserts: (a) that the
decryption, printing, and examination should have taken place during the revision before the trial
court and after the revision committee had determined that the integrity of the official ballots had not
been preserved; (b) that the trial court did not make such determination; (c) that, in fact, Saquilayan
did not allege or present any proof in the RTC to show that the ballots or the ballot boxes had been
tampered, and had, in fact, actively participated in the revision proceedings; (d) that the First Division
should not have entertained the allegation of ballot tampering belatedly raised on appeal; (e) that the
First Division should have limited itself to reviewing the evidence on record; and (f) that the First
Division did not even explain how it had arrived at the conclusion that the integrity of the ballots had
not been preserved.
Maliksi submits that the decision promulgated on March 12, 2013 is null and void for having been
promulgated despite the absence from the deliberations and lack of signature of Justice Jose
Portugal Perez.
Ruling
The Court grants Maliksis Extremely Urgent Motion for Reconsideration, and reverses the decision
promulgated on March 12, 2013 on the ground that the First Division of the COMELEC denied to him
the right to due process by failing to give due notice on the decryption and printing of the ballot
images. Consequently, the Court annuls the recount proceedings conducted by the First Division
with the use of the printouts of the ballot images.

It bears stressing at the outset that the First Division should not have conducted the assailed recount
proceedings because it was then exercising appellate jurisdiction as to which no existing rule of
procedure allowed it to conduct a recount in the first instance. The recount proceedings authorized
under Section 6, Rule 15 of COMELEC Resolution No. 8804, as amended, are to be conducted by
the COMELEC Divisions only in the exercise of their exclusive original jurisdiction over all election
protests involving elective regional (the autonomous regions), provincial and city officials. 4
As we see it, the First Division arbitrarily arrogated unto itself the conduct of the recount
proceedings, contrary to the regular procedure of remanding the protest to the RTC and directing the
reconstitution of the Revision Committee for the decryption and printing of the picture images and
the revision of the ballots on the basis thereof. Quite unexpectedly, the COMELEC En Banc upheld
the First Divisions unwarranted deviation from the standard procedures by invoking the COMELECs
power to "take such measures as the Presiding Commissioner may deem proper," and even citing
the Courts minute resolution in Alliance of Barangay Concerns (ABC) Party-List v. Commission on
Elections5 to the effect that the "COMELEC has the power to adopt procedures that will ensure the
speedy resolution of its cases. The Court will not interfere with its exercise of this prerogative so long
as the parties are amply heard on their opposing claims."
Based on the pronouncement in Alliance of Barangay Concerns (ABC) v. Commission on Elections,
the power of the COMELEC to adopt procedures that will ensure the speedy resolution of its cases
should still be exercised only after giving to all the parties the opportunity to be heard on their
opposing claims. The parties right to be heard upon adversarial issues and matters is never to be
waived or sacrificed, or to be treated so lightly because of the possibility of the substantial prejudice
to be thereby caused to the parties, or to any of them. Thus, the COMELEC En Banc should not
have upheld the First Divisions deviation from the regular procedure in the guise of speedily
resolving the election protest, in view of its failure to provide the parties with notice of its proceedings
and an opportunity to be heard, the most basic requirements of due process.
I.
Due process requirements
The picture images of the ballots are electronic documents that are regarded as the equivalents of
the original official ballots themselves.6 In Vinzons-Chato v. House of Representatives Electoral
Tribunal,7 the Court held that "the picture images of the ballots, as scanned and recorded by the
PCOS, are likewise official ballots that faithfully capture in electronic form the votes cast by the
voter, as defined by Section 2(3) of R.A. No. 9369. As such, the printouts thereof are the functional
equivalent of the paper ballots filled out by the voters and, thus, may be used for purposes of
revision of votes in an electoral protest."
That the two documentsthe official ballot and its picture imageare considered "original
documents" simply means that both of them are given equal probative weight. In short, when either
is presented as evidence, one is not considered as weightier than the other.
But this juridical reality does not authorize the courts, the COMELEC, and the Electoral
Tribunals to quickly and unilaterally resort to the printouts of the picture images of the ballots

in the proceedings had before them without notice to the parties. Despite the equal probative
weight accorded to the official ballots and the printouts of their picture images, the rules for
the revision of ballots adopted for their respective proceedings still consider the official
ballots to be the primary or best evidence of the voters will. In that regard, the picture images
of the ballots are to be used only when it is first shown that the official ballots are lost or their
integrity has been compromised.
For instance, the aforesaid Section 6, Rule 15 of COMELEC Resolution No. 8804 (In Re: Comelec
Rules of Procedure on Disputes In An Automated Election System in Connection with the May 10,
2010 Elections), as amended by COMELEC Resolution No. 9164, itself requires that "the Recount
Committee determines that the integrity of the ballots has been violated or has not been preserved,
or are wet and otherwise in such a condition that (the ballots) cannot be recounted" before the
printing of the image of the ballots should be made, to wit:
xxxx
(g) Only when the Recount Committee, through its chairman, determines that the integrity of the
ballots has been preserved or that no signs of tampering of the ballots are present, will the recount
proceed. In case there are signs that the ballots contained therein are tampered, compromised, wet
or are otherwise in such a condition that it could not be recounted, the Recount Committee shall
follow paragraph (l) of this rule.
xxxx
(l) In the event the Recount Committee determines that the integrity of the ballots has been violated
or has not been preserved, or are wet and otherwise in such a condition that it cannot be recounted,
the Chairman of the Committee shall request from the Election Records and Statistics Department
(ERSD), the printing of the image of the ballots of the subject precinct stored in the CF card used in
the May 10, 2010 elections in the presence of the parties. Printing of the ballot images shall proceed
only upon prior authentication and certification by a duly authorized personnel of the Election
Records and Statistics Department (ERSD) that the data or the images to be printed are genuine
and not substitutes. (Emphases supplied.)
xxxx
Section 6, Rule 10 (Conduct of Revision) of the 2010 Rules of Procedure for Municipal Election
Contests, which governs the proceedings in the Regional Trial Courts exercising original jurisdiction
over election protests, provides:
xxxx
(m) In the event that the revision committee determines that the integrity of the ballots and the ballot
box have not been preserved, as when proof of tampering or substitution exists, it shall proceed to
instruct the printing of the picture image of the ballots stored in the data storage device for the
precinct. The court shall provide a non-partisan technical person who shall conduct the necessary

authentication process to ensure that the data or image stored is genuine and not a substitute. Only
after this determination can the printed picture image be used for the recount. (Emphases supplied.)
xxxx
A similar procedure is found in the 2010 Rules of the Presidential Electoral Tribunal, to wit:
Rule 43. Conduct of the revision. The revision of votes shall be done through the use of
appropriate PCOS machines or manually and visually, as the Tribunal may determine, and according
to the following procedures:
xxxx
(q) In the event that the RC determines that the integrity of the ballots and the ballot box was not
preserved, as when there is proof of tampering or substitution, it shall proceed to instruct the printing
of the picture image of the ballots of the subject precinct stored in the data storage device for the
same precinct. The Tribunal may avail itself of the assistance of the COMELEC for the service of a
non-partisan technical person who shall conduct the necessary authentication process to ensure that
the data or images stored are genuine and not merely substitutes. It is only upon such determination
that the printed picture image can be used for the revision of votes. (Emphases supplied.)
xxxx
Also, the House of Representative Electoral Tribunals Guidelines on the Revision of Ballots requires
a preliminary hearing to be held for the purpose of determining whether the integrity of the ballots
and ballot boxes used in the May 10, 2010 elections was not preserved, as when there is proof of
tampering or substitutions, to wit:
Section 10. Revision of Ballots
xxxx
(d) When it has been shown, in a preliminary hearing set by the parties or by the Tribunal, that the
integrity of the ballots and ballot boxes used in the May 10, 2010 elections was not preserved, as
when there is proof of tampering or substitutions, the Tribunal shall direct the printing of the picture
images of the ballots of the subject precinct stored in the data storage device for the same precinct.
The Tribunal shall provide a non-partisan technical person who shall conduct the necessary
authentication process to ensure that the data or image stored is genuine and not a substitute. It is
only upon such determination that the printed picture image can be used for the revision. (As
amended per Resolution of February 10, 2011; Emphases supplied.)
xxxx
All the foregoing rules on revision of ballots stipulate that the printing of the picture images of the
ballots may be resorted to only after the proper Revision/Recount Committee has first determined
that the integrity of the ballots and the ballot boxes was not preserved.

The foregoing rules further require that the decryption of the images stored in the CF cards and the
printing of the decrypted images take place during the revision or recount proceedings. There is a
good reason for thus fixing where and by whom the decryption and the printing should be conducted.
It is during the revision or recount conducted by the Revision/Recount Committee when the parties
are allowed to be represented, with their representatives witnessing the proceedings and timely
raising their objections in the course of the proceedings. Moreover, whenever the Revision/Recount
Committee makes any determination that the ballots have been tampered and have become
unreliable, the parties are immediately made aware of such determination.
When, as in the present case, it was not the Revision/Recount Committee or the RTC exercising
original jurisdiction over the protest that made the finding that the ballots had been tampered, but the
First Division in the exercise of its appellate jurisdiction, the parties should have been given a formal
notice thereof.
Maliksi was not immediately made aware of that crucial finding because the First Division did not
even issue any written resolution stating its reasons for ordering the printing of the picture images.
The parties were formally notified that the First Division had found that the ballots had been
tampered only when they received the resolution of August 15, 2012, whereby the First Division
nullified the decision of the RTC and declared Saquilayan as the duly elected Mayor. Even so, the
resolution of the First Division to that effect was unusually mute about the factual bases for the
finding of ballot box tampering, and did not also particularize how and why the First Division was
concluding that the integrity of the ballots had been compromised. All that the First Division declared
as justification was a simple generalization of the same being apparent from the allegations of ballot
and ballot box tampering and upon inspection of the ballot boxes, viz:
xxxx
The Commission (First Division) took into consideration the allegations of ballot and ballot box
tampering and upon inspecting the ballot boxes, it is apparent that the integrity of the ballots had
been compromised so, to be able to best determine the true will of the electorate, we decided to go
over the digital image of the appealed ballots.8 (Emphasis supplied)
xxxx
It was the COMELEC En Bancs assailed resolution of September 14, 2012 that later on provided
the explanation to justify the First Divisions resort to the picture images of the ballots, by observing
that the "unprecedented number of double-votes" exclusively affecting the position of Mayor and the
votes for Saquilayan had led to the belief that the ballots had been tampered. However, that
explanation by the COMELEC En Banc did not cure the First Divisions lapse and did not erase the
irregularity that had already invalidated the First Divisions proceedings.
In his dissenting opinion, Justice Antonio T. Carpio advances the view that the COMELECs finding
of ballot tampering was a mere surplusage because there was actually no need for such finding
before the ballots digital counterparts could be used. He cites Section 3, Rule 16 of COMELEC
Resolution No. 8804, as amended by Resolution No. 9164, which states:

Section 3. Printing of Ballot Images. - In case the parties deem it necessary, they may file a motion
to be approved by the Division of the Commission requesting for the printing of ballot images in
addition to those mentioned in the second paragraph of item (e). Parties concerned shall provide the
necessary materials in the printing of images such as but not limited to copying papers, toners and
printers. Parties may also secure, upon prior approval by the Division of the Commission, a soft copy
of the ballot images contained in a secured/hashed disc on the condition that the ballot images be
first printed, at the expense of the requesting party, and that the printed copies be signed by the
parties respective revisors or representatives and by an ERSD IT-capable representative and
deposited with the Commission.
The Over-all chairman shall coordinate with the Director IV, Election Records and Statistics
Department (ERSD), for the printing of images. Said director shall in turn designate a personnel who
will be responsible in the printing of ballot images.
Justice Carpio posits that when a party files a motion for the printing of the ballots that he or she
deems necessary, there is actually no need for a finding of tampering of the ballots or the ballot
boxes before the COMELEC Division may grant the motion. He states that a determination by the
parties that the printing is necessary under Section 3 is a ground separate from Section 6(e), which
in turn pertinently states that:
Section 6. Conduct of the Recount
xxxx
(e) Before the opening of the ballot box, the Recount Committee shall note its condition as well as
that of the locks or locking mechanism and record the condition in the recount report. From its
observation, the Recount Committee must also make a determination as to whether the integrity of
the ballot box has been preserved.
In the event that there are signs of tampering or if the ballot box appears to have been
compromised, the Recount Committee shall still proceed to open the ballot box and make a physical
inventory of the contents thereof. The committee shall, however, record its general observation of
the ballots and other documents found in the ballot box.
The application of Section 3 to this case is inappropriate, considering that the First Division did not in
any way suggest in its decision dated August 15, 2010 that it was resolving Saquilayans motion to
print the ballot images. Instead, the First Division made therein a finding of tampering, thus:
The COMELEC (First Division) took into consideration the allegations of ballot and ballot box
tampering and upon inspecting the ballot boxes, it is apparent that the integrity of the ballots had
been compromised so, to be able to best determine the true will of the electorate, we decided to go
over the digital images of the appealed ballots.
Even the COMELEC En Banc did not indicate in its decision dated September 14, 2012 that the First
Division merely resolved Saquilayans motion for the printing of the ballot images; instead, it
reinforced the First Divisions finding that there was tampering of the ballots. The non-mention of

Saquilayans motion was a clear indication of the COMELECs intention to act motu proprio; and also
revealed its interpretation of its very own rules, that there must be justifiable reason, i.e. tampering,
before the ballot images could be resorted to.
The application of Section 3 would only highlight the First Divisions denial of Maliksis right to due
process. For, if the First Division was really only acting on a motion to allow the printing of the ballot
images, there was a greater reason for the First Division to have given the parties notice of its ruling
thereon. But, as herein noted, the First Division did not issue such ruling.
To interpret Section 3 as granting to any one of the parties the right to move for the printing of the
ballot images should such party deem it necessary, and the COMELEC may grant such motion, is
contrary to its clear wording. Section 3 explicitly states: "in case the parties deem it necessary, they
may file a motion." The provision really envisions a situation in which both parties have agreed that
the ballot images should be printed. Should only one of the parties move for the printing of the ballot
images, it is not Section 3 that applies but Section 6(e), which then requires a finding that the
integrity of the ballots has been compromised.
The disregard of Maliksis right to be informed of the decision to print the picture images of the
ballots and to conduct the recount proceedings during the appellate stage cannot be brushed aside
by the invocation of the fact that Maliksi was able to file, after all, a motion for reconsideration. To be
exact, the motion for reconsideration was actually directed against the entire resolution of the First
Division, while Maliksis claim of due process violation is directed only against the First Divisions
recount proceedings that resulted in the prejudicial result rendered against him. Notably, the First
Division did not issue any order directing the recount. Without the written order, Maliksi was deprived
of the chance to seek any reconsideration or even to assail the irregularly-held recount through a
seasonable petition for certiorari in this Court. In that context, he had no real opportunity to assail the
conduct of the recount proceedings.
The service of the First Division orders requiring Saquilayan to post and augment the cash deposits
for the printing of the picture images did not sufficiently give Maliksi notice of the First Divisions
decision to print the picture images. The said orders did not meet the requirements of due process
because they did not specifically inform Maliksi that the ballots had been found to be tampered. Nor
did the orders offer the factual bases for the finding of tampering. Hence, to leave for Maliksi to
surmise on the factual bases for finding the need to print the picture images still violated the
principles of fair play, because the responsibility and the obligation to lay down the factual bases and
to inform Maliksi as the party to be potentially prejudiced thereby firmly rested on the shoulders of
the First Division.
Moreover, due process of law does not only require notice of the decryption, printing, and recount
proceedings to the parties, but also demands an opportunity to be present at such proceedings or to
be represented therein. Maliksi correctly contends that the orders of the First Division simply
required Saquilayan to post and augment his cash deposit. The orders did not state the time, date,
and venue of the decryption and recount proceedings. Clearly, the First Division had no intention of
giving the parties the opportunity to witness its proceedings.

Mendoza v. Commission on Elections9 instructs that notice to the parties and their participation are
required during the adversarial aspects of the proceedings. In that case, after the revision of the
ballots and after the election protest case was submitted for decision, the ballots and ballot boxes
were transferred to the Senate Electoral Tribunal (SET) in connection with a protest case pending in
the SET. Mendoza later learned that the COMELEC, with the permission of the SET, had meanwhile
conducted proceedings within the SETs premises. Mendoza then claimed that his right to due
process was violated because he had not been given notice by the COMELEC that it would be
conducting further proceedings within the SET premises. The Court did not sustain his claim,
however, and pointed out:
After consideration of the respondents Comments and the petitioners petition and Reply, we hold
that the contested proceedings at the SET ("contested proceedings") are no longer part of the
adversarial aspects of the election contest that would require notice of hearing and the participation
of the parties. As the COMELEC stated in its Comment and without any contrary or disputing claim
in the petitioners Reply:
"However, contrary to the claim of petitioner, public respondent in the appreciation of the contested
ballots in EPC No. 2007-44 simultaneously with the SET in SET Case No. 001-07 is not conducting
"further proceedings" requiring notice to the parties. There is no revision or correction of the ballots
because EPC No. 2007-04 was already submitted for resolution. Public respondent, in coordinating
with the SET, is simply resolving the submitted protest case before it. The parties necessarily take no
part in said deliberation, which require utmost secrecy. Needless to state, the actual decision-making
process is supposed to be conducted only by the designated members of the Second Division of the
public respondent in strict confidentiality."
In other words, what took place at the SET were the internal deliberations of the COMELEC, as a
quasi-judicial body, in the course of appreciating the evidence presented and deciding the provincial
election contest on the merits. These deliberations are no different from judicial deliberations which
are considered confidential and privileged. We find it significant that the private respondents
Comment fully supported the COMELECs position and disavowed any participation in the contested
proceeding the petitioner complained about. The petitioner, on the other hand, has not shown that
the private respondent was ever present in any proceeding at the SET relating to the provincial
election contest.
1wphi1

To conclude, the rights to notice and to be heard are not material considerations in the COMELECs
handling of the Bulacan provincial election contest after the transfer of the ballot boxes to the SET;
no proceedings at the instance of one party or of COMELEC has been conducted at the SET that
would require notice and hearing because of the possibility of prejudice to the other party. The
COMELEC is under no legal obligation to notify either party of the steps it is taking in the course of
deliberating on the merits of the provincial election contest. In the context of our standard of review
for the petition, we see no grave abuse of discretion amounting to lack or excess of jurisdiction
committed by the COMELEC in its deliberation on the Bulacan election contest and the appreciation
of ballots this deliberation entailed.10 (Emphasis supplied.)
Here, the First Division denominated the proceedings it had conducted as an "appreciation of
ballots" like in Mendoza. But unlike in Mendoza, the proceedings conducted by the First Division

were adversarial, in that the proceedings included the decryption and printing of the picture images
of the ballots and the recount of the votes were to be based on the printouts of the picture images.
The First Division did not simply review the findings of the RTC and the Revision Committee, but
actually conducted its own recount proceedings using the printouts of the picture image of the
ballots. As such, the First Division was bound to notify the parties to enable them to participate in the
proceedings.
Significantly, Section 6(l), Rule 15 of COMELEC Resolution No, 8804, as amended by COMELEC
Resolution No. 9164, requires the parties presence during the printing of the images of the ballots,
thus:
xxxx
(l) In the event the Recount Committee determines that the integrity of the ballots has been violated
or has not been preserved, or are wet and otherwise in such a condition that it cannot be recounted,
the Chairman of the Committee shall request from the Election Records and Statistics Department
(ERSD), the printing of the image of the ballots of the subject precinct stored in the CF card used in
the May 10, 2010 elections in the presence of the parties. Printing of the ballot images shall proceed
only upon prior authentication and certification by a duly authorized personnel of the Election
Records and Statistics Department (ERSD) that the data or the images to be printed are genuine
and not substitutes.
xxxx
We should not ignore that the parties participation during the revision and recount proceedings
would not benefit only the parties, but was as vital and significant for the COMELEC as well, for only
by their participation would the COMELECs proceedings attain credibility as to the result. The
parties presence would have ensured that the requisite procedures have been followed, including
the required authentication and certification that the images to be printed are genuine. In this regard,
the COMELEC was less than candid, and was even cavalier in its conduct of the decryption and
printing of the picture images of the ballots and the recount proceedings. The COMELEC was merely
content with listing the guidelines that the First Division had followed in the appreciation of the ballots
and the results of the recount. In short, there was vagueness as to what rule had been followed in
the decryption and printing proceeding.
II.
Remand to the COMELEC
We are mindful of the urgent need to speedily resolve the election protest because the term of the
position involved is about to end. Thus, we overlook pro hac vice the lack of factual basis for the
COMELECs decision to use the digital images of the ballots and sustain its decision thereon.
Although a remand of the election protest to the RTC would have been the appropriate procedure,
we direct the COMELEC En Banc instead to conduct the decryption and printing of the digital
images of the ballots and to hold recount proceedings, with due notice to all the parties and

opportunity for them to be present and to participate during such proceedings. Nothing less serves
the ideal objective safeguarded by the Constitution.
In the absence of particular rules to govern its proceedings in accordance with this disposition, the
COMELEC is urged to follow and observe Rule 15 of COMELEC Resolution No. 8804, as amended
by COMELEC Resolution No. 9164.
The Court, by this resolution, does not intend to validate the victory of any of the parties in the 2010
Elections. That is not the concern of the Court as yet. The Court simply does not want to
countenance a denial of the fundamental right to due process, a cornerstone of our legal
system.11 After all, it is the Courts primary duty to protect the basic rights of the people vis--vis
government actions, thus:
It cannot be denied that most government actions are inspired with noble intentions, all geared
towards the betterment of the nation and its people. But then again, it is important to remember this
ethical principle: "The end does not justify the means." No matter how noble and worthy of
admiration the purpose of an act, but if the means to be employed in accomplishing it is simply
irreconcilable with constitutional parameters, then it cannot still be allowed. The Court cannot just
turn a blind eye and simply let it pass. It will continue to uphold the Constitution and its enshrined
principles.12
WHEREFORE, the Court PARTIALLY GRANTS the Extremely Urgent Motion for Reconsideration of
petitioner Emmanuel Maliksi; REVERSES the Court's decision promulgated on March 12, 2013; and
DIRECTS the Commission on Elections En Bane to conduct proceedings for the decryption of the
picture images of the ballots involved in the protest after due authentication, and for the recount of
ballots by using the printouts of the ballot images, with notice to and in the presence of the parties or
their representatives in accordance with the procedure laid down by Rule 15 of COMELEC
Resolution No. 8804, as amended by Resolution No. 9164.
No pronouncement on costs of suit.
DISSENTING OPINION
CARPIO, J.:
For the Court's consideration is the Extremely Urgent Motion for Reconsideration filed by Emmanuel
L. Maliksi (Maliksi) assailing this Court's 12 March 2013 Decision which affirmed the 14 September
2012 Resolution of the Commission on Elections (COMELEC) En Bane and declared Homer T.
Saquilayan (Saquilayan) as the duly-elected Municipal Mayor of lmus, Cavite.
In his motion for reconsideration, Maliksi cited extensively from the Dissenting Opinion 1 and asserted
that he was denied due process when the COMELEC First Division decrypted, printed, and
examined the ballot images without notice to him. Maliksi further alleged that this Court's 12 March
2013 Decision is null and void for having been promulgated in the absence of Associate Justice Jose
Portugal Perez (Justice Perez).

First, I will discuss the issue of the absence of Justice Perez when the Court's 12 March 2013
Decision was promulgated.
Section 4, Rule 12 of the Internal Rules of the Supreme Court allows a member of this Court to leave
his or her vote in writing. The Rule states:
SEC. 4. Leaving a vote. - A Member who goes on leave or is unable to attend the voting on any
decision, resolution, or matter may leave his or her vote in writing, addressed to the Chief Justice or
the Division Chairperson, and the vote shall be counted, provided that he or she took part in the
deliberation.
As such, there was nothing irregular when Justice Perez left his vote in writing with the Chief Justice
because he took part in the previous deliberation of the case.
Maliksi again assails the decryption and printing of the ballot images for the first time on appeal.
I reiterate that Saquilayan first requested for the printing of the ballot images before the trial court
when he filed a Motion To Print Picture Images Of The Ballot Boxes Stored In The Memory Cards Of
The Clustered Precincts2dated 21 March 2011. In that Motion, Saquilayan made the allegation of
tampering citing that during the preliminary revision proceedings, he noticed an unusually large
number of double-voted ballots only for the position of Mayor and that the recorded counts of all the
revision committees show significant discrepancies between the ballot counts and the results
reflected in the election returns.3 It was only on 3 May 2011 that the trial court in an Omnibus Order
granted Saquilayan's motion for the printing of the ballot images in the CF cards. 4 On 16 May 2011,
the COMELEC Election Records and Statistics Department (ERSD) informed Saquilayan that the CF
cards were still in the custody of the trial court. In a Manifestation and Request 5 dated 20 May 2011,
Saquilayan asked the trial court to forward the CF cards of the protested precincts to the ERSD to
enable the COMELEC to decrypt and print the ballot images. The decryption of the ballot images
was set on 21 June 2011.
Maliksi then filed a Motion for Honorable Court to Request ERSD to Specify Procedure to Decrypt
Compact Flash (CF) Cards. The trial court, in an Order6 dated 17 June 2011, requested the ERSD to
specify the procedure that it would undertake during the proceedings and set the case for
conference on 27 June 2011. In a letter7 dated 20 June 2011, Maliksi wrote the ERSD requesting
that further proceedings be deferred and held in abeyance in deference to the 17 June 2011 Order of
the trial court. On 27 June 2011, on the date the case was set for conference, Maliksi filed a Motion
to Consider That Period Has Lapsed to Print Ballot's Picture Images 8 on the ground that Saquilayan
only had 30 days from receipt of the Omnibus Order dated 3 May 2011 to accomplish the printing of
the ballot images. Maliksi alleged that the 30-day period started on 10 May 2011 when Saquilayan
received the 3 May 2011 Omnibus Order and ended on 22 June 2011. Thus, Saquilayan was already
barred from having access to the electronic data in the COMELEC's back-up server and to print the
ballot images in the CF cards. The trial court granted Maliksi's motion in its Order dated 3 August
20119 despite the fact that the delay in the decryption could not be attributed to Saquilayan's fault
alone but also due to the failure of the trial court to turn over the CF cards to the ERSD and to
Maliksi's motion for the ERSD to specify the procedure in decrypting the CF cards. Clearly, the issue

of tampering, as well as the request for the decryption of the ballot images, was not raised for the
first time on appeal.
Maliksi also echoed the Dissenting Opinion that the printing of the ballot images may only be
resorted to after the proper Revision/Recount Committee had first determined that the integrity of the
ballots and the ballot boxes was not preserved. Citing Section 6, Rule 15 of COMELEC Resolution
No. 8804,10 as amended by Resolution No. 9164,11 Maliksi alleged that the decryption of the images
stored in the CF cards and the printing of the decrypted images must take place during the revision
or recount proceedings and that it should be the Revision/Recount Committee that determines
whether the ballots are unreliable.
Section 6, Rule 1 5 should be read together with Rule 16 of Resolution No. 8804, as amended by
Resolution No. 9164, particularly Section 3, which provides:
Section 3. Printing of Ballot Images. - In case the parties deem it necessary, they may file a motion
to be approved by the Division of the Commission requesting for the printing of ballot images in
addition to those mentioned in the second paragraph of item (e). Parties concerned shall provide the
necessary materials in the printing of images such as but not limited to copying papers, toners and
printers. Parties may also secure, upon prior approval by the Division of the Commission, a soft copy
of the ballot images contained in a secured/hashed disc on the condition that the ballot images be
first printed, at the expense of the requesting party, and that the printed copies be signed by the
parties' respective revisors or representatives and by an ERSD IT-capable representative and
deposited with the Commission.
The Over-all chairman shall coordinate with the Director IV, Election Records and Statistics
Department (ERSD), for the printing of images. Said director shall in turn designate a personnel who
will be responsible in the printing of ballot images. (Emphasis supplied)
Section 3, Rule 16 does not require any allegation of tampering before the printing of ballot
images may be requested by the parties. It does not require prior determination by the
Revision/Recount Committee that the integrity of the ballots and the ballot boxes was not
preserved. Under Section 3, Rule 16, the request may be made when the parties deem the
printing of the ballot images necessary.
To repeat, the parties can request for the printing of the ballot images "in case the parties deem it
necessary." This is a ground separate from that in Section 6( e), which refers to a determination of
the integrity of the ballots by the Revision/Recount Committee. Section 3, Rule 16 provides that "in
case the parties deem it necessary, they may file a motion to be approved by the Division of the
Commission requesting for the printing of ballot images in addition to those mentioned in t11e
second paragraph of item (e)." The second paragraph of item (e) speaks of signs of tampering, or if
the ballot box appears to have been compromised, thus:
Section 6. Conduct of the Recount- x x x.
xxxx

(e) Before the opening of the ballot box, the Recount Committee shall note its condition as well as
that of the locks or locking mechanism and record the condition in the recount report. From its
observation, the Recount Committee must also make a determination as to whether the integrity of
the ballot box has been preserved.
In the event that there are signs of tampering or if the ballot box appears to have been
compromised, the Recount Committee shall still proceed to open the ballot box and make a physical
inventory of the contents thereof. The committee shall, however, record its general observation of
the ballots and other documents found in the ballot box. (Emphasis supplied)
Section 3, Rule 16 allows an additional ground for the printing of the ballot images: the determination
by the parties that the printing is necessary. Clearly, even without signs of tampering or that the
integrity of the ballots and the ballot boxes had been compromised, the parties may move for the
printing of the ballot images. In this case, the COMELEC En Bane made it clear in its
Comment12 that the COMELEC First Division ordered the decryption, printing and examination of the
digital images because the COMELEC First Division "discovered upon inspection that the integrity of
the ballots themselves was compromised and that the ballot boxes were tampered." 13 However,
applying Section 3 of Rule 16, the finding of tampering was not even necessary for the
COMELEC First Division to allow the printing of the ballot images.
Saquilayan moved for the printing of the ballot images as early as 21 March 2011 before the trial
court. Saquilayan reiterated his motion to have the ballot images printed when he filed his appeal
brief14 before the COMELEC First Division. Saquilayan pointed out that he filed reiterations of his
motion to print with copies furnished to Maliksi until the COMELEC First Division ordered the
printing.15 There is nothing in the records which showed that Maliksi opposed Saquilayan's motion.
Section 3, Rule 9 of Resolution No. 8808 provides:
Section 3. No hearings on motions. - Motions shall not be set for hearing unless the Commission
directs otherwise. Oral argument in support thereof shall be allowed only upon the discretion of the
Commission. The adverse party may file opposition five days from receipt of the motion, upon the
expiration of which such motion is deemed submitted for resolution. The Commission shall resolve
the motion within five days. (Emphasis supplied)
When Maliksi did not oppose Saquilayan's motion for the printing of the ballot images, he is deemed
to have waived his right to oppose the motion. The motion was deemed submitted for resolution. The
COMELEC En Bane categorically stated that Maliksi "never questioned the Order of decryption of
the First Division nor did he raise any objection in any of the pleadings he filed with this Commission
- a fact which already places him under estoppel."16 Maliksi could not claim that he was denied due
process because he was not aware of the decryption proceedings. The Order 17 dated 28 March 2012
where the COMELEC First Division directed Saquilayan to deposit the required amount for expenses
for the supplies, honoraria, and fee for the decryption of the CF cards was personally delivered to
Maliksi's counsel. The Order18 dated 17 April 2012 where the COMELEC First Division required
Saquilayan to deposit an additional amount for expenses for the printing of additional ballot images
from four clustered precincts was again personally delivered to Maliksi's counsel. Maliksi feigned

ignorance of the decryption proceedings until he received the COMELEC First Division's Resolution
of 15 August 2012.
As regards Maliksi's claim that he was deprived of his right to be present during the authentication
process and the actual printing of the ballot images, Section 3 of Resolution No. 8804, as amended
by Resolution No. 9164, does not require the parties or their representatives to be present during the
printing of the ballot images. Maliksi should have moved to be present at, or to observe, the
decryption proceedings when he received the 28 March 2012 Order directing the decryption. Maliksi
did not, and thus he waived whatever right he had to be present at, or to observe, the decryption
proceedings.
I emphasize that there is no denial of due process where there is opportunity to be heard, either
through oral arguments or pleadings.19 Further, the fact that a party was heard on his motion for
reconsideration negates any violation of the right to due process.20 Maliksi's motion for
reconsideration was directed against the entire resolution of the First Division, including the recount
proceedings which he claimed to have violated his right to due process.
Maliksi alleged that the COMELEC First Division should have limited itself to reviewing the evidence
on record, meaning the physical ballots, instead of using the decrypted images. Maliksi thus wanted
the COMELEC First Division to ignore its finding of tampering. On this issue, the COMELEC En
Bane stressed:
x x x. Worth noting also is that these 8,387 ballots all came from 53 clustered precincts specifically
pinpointed by Maliksi as his pilot precincts (which is 20% of the total precincts he protested) thereby affecting a total of 33.38% or more than one-third (1/3) of the total ballots cast in those
precincts. We find this too massive to have not been detected on election day, too specific to be
random and too precise to be accidental -which leaves a reasonable mind no other conclusion
except that those 8,387 cases of double-shading were purposely machinated. These dubious and
highly suspicious circumstances left us with no other option but to dispense with the physical ballots
and resort to their digital images. To recount the tampered ballots will only yield us tampered results
defeating the point of this appeal.21
In his Reflections submitted to this Court, Justice Perez stated that the present electoral contest is all
about over-voting. Justice Perez cited Guideline No. 5 used by the COMELEC which states:
5. On over-voting. It has been the position of the Commission that over-voting in a certain position
will make the vote cast for that position stray but will not invalidate the entire ballot, so in case of
over-voting for the contested position, such vote shall be considered stray and will not be credited to
any of the contending parties.
Justice Perez added that "in case of over-voting which is the case at hand, Guideline No. 5 out
rightly provides- the consequence that the vote shall be considered stray and will not be credited to
any of the contending parties." Justice Perez stated that the COMELEC disobeyed its own rule that
over-voting results in a stray vote.

This case is not a case of over-voting under Guideline No. 5. In over-voting under Guideline No. 5,
one person, that is, the voter himself, votes for two or more persons for one elective position. When
the ballot is fed to the PCOS machine, the machine reads that two or more candidates for the same
position had been shaded. The digital image will record two spaces shaded for one position. On the
other hand, in double-shading, the voter shades the space for one candidate but another person,
after the ballot is fed to the PCOS machine, surreptitiously shades another space for another
candidate for the same position. In double-shading, the digital image shows only one shaded space
for a candidate while the ballot shows two shaded spaces. In the present case, there was actually a
double-shading (although it was inaccurately referred to as over-voting in the COMELEC First
Division's Decision) which was done by person or persons other than the voter. When the ballot was
fed to the PCOS machine, the machine read only one vote for one candidate for one position. After
the double-shading, there were already two votes for two candidates for the same position, but the
digital image still contains only one shaded space.
Here, the double-shading happened after the ballots were fed to and read by the PCOS machines
because the digital images show only one shaded space while the ballots show two shaded spaces.
Double-shading is a post-election operation. The double-shading covered 8,387 ballots, "exclusively
affecting the position of Mayor and specifically affecting the ballots of Saquilayan" 22 and the 8,387
affected ballots surprisingly all came from 53 clustered precincts "specifically pinpointed by Maliksi
as his pilot precincts."23
The situation here is the one covered by Guideline No. 2 cited by Justice Perez which states that
"the best way to identity if a ballot has been tampered is to go to the digital image of the ballot as the
PCOS was able to capture such when the ballot was fed by the voter into the machine when he cast
his vote." This is what the COMELEC First Division did and the COMELEC First Division discovered
that there was no double-shading in the digital images of the ballots. Obviously, the double-shading
was done by persons other than the voters.
Again, Saquilayan raised the issue of tampering of the ballots as early as 21 March 2011 before the
trial court. The COMELEC First Division took into consideration the allegation of tampering. Even
without the allegation of tampering, Section 3, Rule 16 of Resolution No. 8804, as amended by
Resolution No. 9164, allows the parties to request for the printing of the ballot images if the parties
deem it necessary. It is undisputed that Saquilayan requested the COMELEC for the printing of the
ballot images and Maliksi did not file any opposition to Saquilayan's motions. Upon inspection of the
ballots and ballot boxes, the COMELEC First Division found that the integrity of the ballots had been
compromised. When the digital images of the ballots were examined, the COMELEC First Division
found that there was no double-shading. As such, the ballots should not be considered stray under
Guideline No. 5.
ACCORDINGLY, I vote to DENY with FINALITY the Extremely Urgent Motion for Reconsideration
filed by Emmanuel L. Maliksi.

Capalla vs. Comelec, GR No. 201112,


June 13, 2012
By LLBe:LawLifeBuzzEtcetera
Facts: On July 10, 2009, the Comelec and Smartmatic-TIM entered into a Contract for the Provision
of an Automated Election System for the May 10, 2010 Synchronized National and Local Elections,
(AES Contract). The contract between the Comelec and Smartmatic-TIM was one of lease of the
AES with option to purchase (OTP) the goods listed in the contract. In said contract, the Comelec
was given until December 31, 2010 within which to exercise the option. In September 2010, the
Comelec partially exercised its OTP 920 units of PCOS machines with corresponding
canvassing/consolidation system (CCS) for the special elections in certain areas in the provinces of
Basilan, Lanao del Sur and Bulacan. In a letter dated December 18, 2010, Smartmatic-TIM, through
its Chairman Flores, proposed a temporary extension of the option period on the remaining PCOS
machines until March 31, 2011, waiving the storage costs and covering the maintenance costs. The
Comelec did not exercise the option within the extended period. Several extensions were given for
the Comelec to exercise the OTP until its final extension on March 31, 2012.
On March 29, 2012, the Comelec issued a Resolution resolving to accept Smartmatic-TIMs offer to
extend the period to exercise the OTP until March 31, 2012 and to authorize Chairman Brillantes to
sign for and on behalf of the Comelec the Agreement on the Extension of the OTP Under the AES
Contract (Extension Agreement). Comelec again issued a Resolution resolving to approve the Deed
of Sale between the Comelec and Smartmatic-TIM to purchase the latters PCOS machines to be used
in the upcoming May 2013 elections and to authorize Chairman Brillantes to sign the Deed of Sale
for and on behalf of the Comelec. The Deed of Sale was forthwith executed.
Petitioners assail the constitutionality of the Comelec Resolutions on the grounds that the option
period provided for in the AES contract had already lapsed; that the extension of the option period
and the exercise of the option without competitive public bidding contravene the provisions of RA
9184; and that the Comelec purchased the machines in contravention of the standards laid down in
RA 9369. On the other hand, respondents argue on the validity of the subject transaction based on
the grounds that there is no prohibition either in the contract or provision of law for it to extend the
option period; that the OTP is not an independent contract in itself, but is a provision contained in
the valid and existing AES contract that had already satisfied the public bidding requirements of RA
9184; and that exercising the option was the most advantageous option of the Comelec.
Issue: Whether or not there was grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the Comelec in issuing the assailed Resolutions and in executing the
assailed Extension Agreement and Deed.

Held: No. A reading of the other provisions of the AES contract would show that the parties are
given the right to amend the contract which may include the period within which to exercise the
option. There is, likewise, no prohibition on the extension of the period, provided that the contract is
still effective. The Comelec still retains P50M of the amount due Smartmatic-TIM as performance
security, which indicates that the AES contract is still effective and not yet terminated. Consequently,
pursuant to Article 19 of the contract, the provisions thereof may still be amended by mutual
agreement of the parties provided said amendment is in writing and signed by the parties.
Considering, however, that the AES contract is not an ordinary contract as it involves procurement
by a government agency, the rights and obligations of the parties are governed not only by the Civil
Code but also by RA 9184. A winning bidder is not precluded from modifying or amending certain
provisions of the contract bidded upon. However, such changes must not constitute substantial or
material amendments that would alter the basic parameters of the contract and would constitute a
denial to the other bidders of the opportunity to bid on the same terms.
The conclusions held by the Court in Power Sector Assets and Liabilities Management Corporation
(PSALM) v. Pozzolanic Philippines Incorporated and Agan, Jr. v. Philippine International Air
Terminals Co., Inc., (PIATCO) cannot be applied in the present case. First, Smartmatic-TIM was not
granted additional right that was not previously available to the other bidders. The bidders were
apprised that aside from the lease of goods and purchase of services, their proposals should include
an OTP the subject goods. Second, the amendment of the AES contract is not substantial. The
approved budget for the contract was P11,223,618,400.00 charged against the supplemental
appropriations for election modernization. Bids were, therefore, accepted provided that they did not
exceed said amount. The competitive public bidding conducted for the AES contract was sufficient. A
new public bidding would be a superfluity. Lastly, the amendment of the AES contract is more
advantageous to the Comelec and the public because the P7,191,484,739.48 rentals paid for the lease
of goods and purchase of services under the AES contract was considered part of the purchase price.
For the Comelec to own the subject goods, it was required to pay only P2,130,635,048.15. If the
Comelec did not exercise the option, the rentals already paid would just be one of the government
expenses for the past election and would be of no use to future elections.

EMMANUEL B. AZNAR, Petitioner,


vs.
CITIBANK, N.A., (Philippines), Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before this Court is a Petition for Review assailing the Decision 1 of the Court of Appeals (CA) in CAG.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 businessman2 in Cebu, is a holder of a Preferred Master
Credit Card (Mastercard) bearing number 5423-3920-0786-7012 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 print-out16presented by Aznar and the Warning Cancellation Bulletins17 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 reraffled21 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. 24
lawphi1.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 Evidence 26 or under Section
20 of Rule 132 of the Rules of Court27 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 Division30 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
self-serving 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
Stripped to its essentials, the only question that needs to be answered is: whether Aznar has
established his claim against Citibank.
The answer is no.
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
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.
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?
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
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.
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.
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.
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:
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".
xxxx
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 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 print-out. 45
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:
ATTY. NERI
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?

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 print-out 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:
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, 31 to 3-38, 4, 4-1 to 4-38 5, 5-1 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.
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.
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.
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.
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:
COURT:
Q When was this ticket purchased, after the account was augmented
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 one-sided. 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.

FREDRIK FELIX P. NOGALES,


GIANCARLO
P.
NOGALES,
ROGELIO
P.
NOGALES,
MELINDA
P.
NOGALES,
PRISCILA B. CABRERA, PHILPACIFIC
OUTSOURCING

G.R. No. 191080

Present:

SERVICES CORPORATIONand 3 X
8 INTERNET,represented by its
proprietorMICHAEL
CHRISTOPHER A. NOGALES,

VELASCO,
JR., J., Chairperson,

Petitioners,

PERALTA,
ABAD,
PEREZ, and
- versus -

MENDOZA, JJ.

PEOPLE
OF
THEPHILIPPINES and PRESIDIN
G
JUDGE
TITA
BUGHAO
ALISUAG, Branch 1, Regional Trial
Court, Manila,
Respondents.

Promulgated:

November 21, 2011

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

DECISION
MENDOZA, J.:
At bench is a petition for certiorari under Rule 65 of the Rules of Court filed
by petitioners Fredrik Felix P. Nogales, Giancarlo P. Nogales, Rogelio P. Nogales,
Melinda P. Nogales, Priscila B. Cabrera, Phil-Pacific Outsourcing Services Corp.
and 3 x 8 Internet, represented by its proprietor Michael Christopher A.
Nogales (petitioners) against respondents People of the Philippines and Presiding
Judge Tita Bughao Alisuag (Judge Alisuag) of Branch 1, Regional Trial Court,
Manila (RTC).
The petition challenges the August 19, 2009 Decision[1] of the Court of
Appeals (CA), in CA-G.R. SP No. 105968, which affirmed with modification the
August 6, 2008 Order[2] of Judge Alisuag of the RTC; and its January 25, 2010
Resolution,[3] which denied petitioners motion for reconsideration.
THE FACTS:
On July 30, 2007, Special Investigator Garry Meez (SI Meez) of the National
Bureau of Investigation (NBI) applied for a search warrant before the RTC to
authorize him and his fellow NBI agents or any peace officer to search the
premises of petitioner Phil-Pacific Outsourcing Services Corporation (PhilPacific) and to seize/confiscate and take into custody the items/articles/objects
enumerated in his application. The sworn application, docketed as Search Warrant
Proceedings No. 07-11685,[4] partially reads:
SWORN APPLICATION FOR A SEARCH WARRANT
xxxxxxxxx
That he has been informed, verily believes and personally verified
that JUN NICOLAS, LOREN NUESTRA, FREDRICK FELIX P.

NOGALES, MELINDA P. NOGALES, PRISCILA B. CABRERA


and/or occupants PHIL-PACIFICOUTSOURCING SERVICES
CORP. located at Mezzanine Flr., Glorietta De Manila Building, 776
San Sebastian St., University Belt, Manila have in their
possession/control and are concealed in the above-mentioned
premises various material[s] used in the creation and selling of
pornographic internet website, to wit:

1. Computer Sets
2. Television Sets
3. Internet Servers
4. Fax Machines
5. Pornographic Films and other Pornographic Materials
6. Web Cameras
7. Telephone Sets
8. Photocopying Machines
9. List of clients and
10. Other tools and materials used or intended to be used in
the commission of the crime.

The application for Search Warrant No. 07-11685 of SI Meez was acted
upon by Judge Alisuag. On August 3, 2007, a hearing was conducted wherein
Judge Alisuag personally examined SI Meez and two other witnesses in the form of
searching questions and their answers thereto were duly recorded by the court. The
witnesses affidavits were also submitted and marked as supporting evidence to the
application for the issuance of a search warrant. On the same date of the hearing,
the application was granted and the corresponding Search Warrant, [5] issued. The
said search warrant is quoted as follows:
SEARCH WARRANT
TO: ANY PEACE OFFICER
It appearing to the satisfaction of the undersigned, after
examining under oath applicant SI III GARY I. MEEZ of the
Special Task Force Division, National Bureau of Investigation, and

his witnesses, ISABEL CORTEZ y ANDRADE of 167 5 thAvenue,


Caloocan City and MARK ANTHONY C. SEBASTIAN of No. 32
Arlegui Street, San Miguel Quiapo, Manila that there are good
reasons to believe that VIOLATION OF ARTICLE 201 OF THE
REVISED PENAL CODE, AS AMENDED IN RELATION TO R.A.
8792 (ELECTRONIC COMMERCE ACT) has been committed and
that JUN NICOLAS, LOREN NUESTRA, FREDERICK (sic) FELIX
P. NOGALES, GIAN CARLO P. NOGALES, ROGELIO P.
NOGALES, MELINDA P. NOGALES, PRISCILA B. CABRERA
and/or OCCUPANTS OF PHIL. PACIFIC OUTSOURCING
SERVICES CORPORATION located at Mezzanine Floor, Glorietta
De Manila Building, 776 San Sebastian St., University Belt,
Manila, have in their possession and control of the following:
1. Computer Sets
2. Television Sets
3. Internet Servers
4. Fax Machines
5. Pornographic Films and other Pornographic Materials
6. Web Cameras
7. Telephone Sets
8. Photocopying Machines
9. List of clients and
10. Other tools and materials used or intended to be used in
the commission of the crime.
You are hereby commanded to make an immediate search any
time of the DAY of the premises mentioned above which is Mezzanine
Floor, Glorietta De Manila Building, 776 San Sebastian St., University
Belt, Manila and take possession of the following:
1.
2.
3.
4.
5.
6.
7.
8.
9.

Computer Sets
Television Sets
Internet Servers
Fax Machines
Pornographic Films and other Pornographic Materials
Web Cameras
Telephone Sets
Photocopying Machines
List of clients and

10. Other tools and materials used or intended to be used in


the commission of the crime.
and bring to this Court the said properties and persons to be dealt with
as the law may direct. You are further directed to submit a return within
ten (10) days from today.

On August 8, 2007, SI Meez submitted a Return of Search Warrant [6] to the


RTC manifesting that in the morning of August 7, 2007, the operatives of the
Special Task Force of the NBI implemented the said search warrant in an orderly
and peaceful manner in the presence of the occupants of the described premises
and that the seized items were properly inventoried in the Receipt/Inventory of
Property Seized. The items seized were the following:

1.
2.
3.
4.
5.

Ten (10) units of Central Processing Units (CPUs);


Ten (10) units of monitors;
Ten (10) units of keyboard;
Ten (10) units of mouse; and
Ten (10) units of AVRs.

The RTC then issued an order granting the prayer of SI Meez to keep the
seized items in the NBI evidence room and under his custody with the undertaking
to make said confiscated items available whenever the court would require them.
Aggrieved by the issuance of the said order, the named persons in the search
warrant filed a Motion to Quash Search Warrant and Return Seized Properties. [7] In
the said motion, petitioners cited the following grounds:
A. Respondents do not have programmers making,
designing, maintaining, editing, storing, circulating, distributing,
or selling said websites or the contents thereof;
B.

Respondents do not have any website servers;

C. Respondents do not own the websites imputed to them,


which are actually located outside the Philippines, in foreign
countries, and are owned by foreign companies in those countries;
D. The testimony of the witnesses presented by the NBI are
contradicted by the facts of the case as established by
documentary evidence;
E. The NBI withheld verifiable information from the
Honorable Court and took advantage of the limited knowledge of
courts in general in order to obtain the search warrant for their
personal intentions;
F.

The NBI raided the wrong establishment; and

G. The element of publicity is absent.

On December 26, 2007, the RTC denied the motion [8] stating, among others,
that:

1.) It cannot be said that publicity is not present. The PhilPacific Outsourcing Services Corp., is actually persuading its
clients, thru its agents (call center agents), to log-on to the
pornographic sites listed in its web page. In that manner, PhilPacific Outsourcing Services Corporation is advertising these
pornographic web sites, and such advertisement is a form of
publicity.
2.) Even if some of the listed items intended to be seized
were not recovered from the place where the search was made, it
does not mean that there was no really crime being committed. As
in fact, pornographic materials were found in some of the
computers which were seized.

3.) In the same way that the names listed in the Search
Warrant were not arrested or not in the premises subject of the
search, it does not mean that there are no such persons existing
nor there is no crime being committed.
4.) As a rule, Search Warrant may be issued upon existence
of probable cause. Probable cause for a search is defined as such
fact and circumstances which would lead a reasonable discreet
and prudent man to believe that an offense has been committed
and that the objects sought in connection with the offense are in
the place sought to be reached. Hence, in implementing a Search
Warrant, what matters most is the presence of the items ought to
be seized in the place to be searched, even in the absence of the
authors of the crime committed.
5.) The Search Warrant was issued in accordance with Secs.
3 to 6, Rule 126 of the Revised Rules of Court. Search Warrant
may be quashed or invalidated if there is an impropriety in its
issuance or irregularity in its enforcement. Absent such
impropriety or irregularity, quashal is not warranted.

Undaunted, petitioners moved for the reconsideration of the said order on


the following grounds: (a) the trial court erred in holding that there was no
impropriety or irregularity in the issuance of the search warrant; (b) the trial court
erred in holding that there was no irregularity in its enforcement; and (c) the trial
court erred in holding that publicity was present.
On February 19, 2008, petitioners requested the RTC to issue a subpoena
duces tecum ad testificandum to SI Meez and the witnesses Isabel Cortez and Mark
Anthony Sebastian directing them to appear, bring the records evidencing publicity
of pornographic materials and testify in the hearing set on March 7, 2008.
Meanwhile, in a resolution dated February 21, 2008,[9] the 3rd Assistant City
Prosecutor recommended that the complaint for violation of Article 201 [10] of the
Revised Penal Code (RPC) against petitioners be dismissed due to insufficiency of
evidence and the same was approved by the City Prosecutor. Hence, on May 6,
2008, petitioners filed a Supplemental Motion to Release Seized

Properties[11] manifesting that the complaint against them was dismissed, and that,
for said reason, the State had no more use of the seized properties.
On August 6, 2008, the RTC issued the assailed second order,[12] which
denied the motion for reconsideration filed by petitioners. The RTC, however,
partially granted the prayer of petitioners. Judge Alisuag wrote:
Be it noted that the proceedings held by this Court when it
heard the Application for Search Warrant by NBI Special
Investigator Meez is very much different [from] the case resolved
by the Office of the City Prosecutor. The case before the Office of
the City Prosecutor, while the same [was] dismissed cannot be the
ground to release the seized properties subject of the Search
Warrant issued by the Court. When the Court issued the Search
Warrant, indeed, it found probable cause in the issuance of the
same, which is the only reason wherein Search Warrant may be
issued.
On the case heard by the Office of the City Prosecutor, the
Resolution has its own ground and reason to dismiss it.
xxxxxxxxx
That the subject of the Search Warrant which is now under
the custody of the NBI [was] made subject of the case and as well
as the witnesses for that case which was resolved by the Office of
the City Prosecutor is of no moment.
WHEREFORE, the Motion for Reconsideration is Denied.
The Motion to Release Seized Properties is partially granted.
Accordingly therefore, let the computer sets be hereby
returned to the respondents. The CPU and all the rest of the
softwares containing obscene materials which were seized during
the implementation of the valid Search Warrant are hereby
retained in the possession of the National Bureau of Investigation
thru applicant Special Investigator Garry J. Meez.
SO ORDERED.[13]

Not in conformity, petitioners sought relief with the CA via a special civil action
for certiorari alleging that Judge Alisuag committed grave abuse of discretion
amounting to lack or excess of jurisdiction when she partially granted the motion
of petitioners for the release of the seized properties such that only the monitor sets
were released but the CPUs and the softwares were retained under the custody of
the NBI.
The CA affirmed with modification the assailed August 6, 2008 Order of the RTC.
Thus:
WHEREFORE, in view of all the foregoing premises, the
assailed order issued by the respondent Judge on August 6, 2008
is AFFIRMED with the MODIFICATION that the CPUs and
softwares which were ordered to be retained by the NBI through
SI Meez shall be released in favor of the petitioners herein with
the condition that the hard disk be removed from the CPUs and be
destroyed. If the softwares are determined to be unlicensed or
pirated copies, they shall be destroyed in the manner allowed by
law.
SO ORDERED.[14] [Underscoring supplied]

The CA explained:
1.) It is undisputed that the seized computer units contained
obscene materials or pornographic files. The hard disk technically
contains them but these files are susceptible to modification or
limitation of status; thus, they can be erased or permanently
deleted from the storage disk. In this peculiar case, the obscene
materials or pornographic files are stored in such a way that they
can be erased or deleted by formatting the hard disk without the
necessity of destroying or burning the disk that contains them. By
structure, the hard drive contains the hard disk and the hard drive
can be found in the CPU. These obscene materials or
pornographic files are only stored files of the CPU and do not
permanently form part of the CPU which would call for the
destruction or much less retention of the same.

2.) Notwithstanding, with the advancement of technology,


there are means developed to retrieve files from a formatted hard
disk, thus, the removal of the hard disk from the CPU is the
reliable manner to permanently remove the obscene or
pornographic files. With regard to the softwares confiscated and
also ordered to be retained by the NBI, nothing in the evidence
presented by the respondents shows that these softwares are
pornographic tools or program customized just for creating
obscene materials. There are softwares which may be used for licit
activities like photograph enhancing or video editing and there are
thousands of softwares that have legitimate uses. It would be
different if the confiscated softwares are pirated softwares
contained in compact discs or the pre-installed softwares have no
license or not registered; then, the NBI may retain them. In the
particular circumstances of this case, the return of the CPUs and
softwares would better serve the purposes of justice and
expediency.
3.) The responsibilities of the magistrate do not end with the
granting of the warrant but extend to the custody of the articles
seized. In exercising custody over these articles, the property
rights of the owner should be balanced with the social need to
preserve evidence which will be used in the prosecution of a
case. In the instant case, the complaint had been dismissed by the
prosecutor for insufficiency of evidence. Thus, the court had been
left with the custody of highly depreciable merchandise. More
importantly, these highly depreciable articles would have been
superfluous to be retained for the following reasons: (1) it was
found by the prosecutor that there was no sufficient evidence to
prove that the petitioners violated Article 201 of the Revised Penal
Code in relation to R.A. 8792 (Electronic Commerce Act); (2) the
obscene materials or pornographic files can be deleted by
formatting or removing the hard disk from the CPUs without
destroying the entire CPU; and (3) the petitioners did not dispute
that the files found in the seized items were obscene or
pornographic but the said devices are not obscene or illegal per
se. Hence, where the purpose of presenting as evidence the
articles seized is no longer served, there is no justification for
severely curtailing the rights of a person to his property.

Petitioners filed a motion for reconsideration but it was denied in a


resolution dated January 25, 2010.[15]
Undeterred, petitioners filed a petition for certiorari [16] with this Court anchored on
the following:
GROUNDS:
6.1. The decision by the Court of Appeals affirming the
decision of the respondent trial judge constitutes grave abuse of
discretion amounting to lack or excess of jurisdiction, as it violates
the constitutional proscription against confiscation of property
without due process of law, and there is no appeal nor any plain,
speedy or adequate remedy in the ordinary course of law.

6.2. Since the case involves pornography accessible in the


internet, this is a case of first impression and current importance.
[17]
[Emphases ours]
ISSUE
Whether or not there was grave abuse of discretion on the part of the CA in
ordering the removal and destruction of the hard disks containing the pornographic
and obscene materials.
THE COURTS RULING
Petitioners argue that there is no evidence showing that they were the source of
pornographic printouts presented by the NBI to the RTC or to the City Prosecutor
of Manila in I.S. No. 07H-13530. Since the hard disks in their computers are not
illegal per seunlike shabu, opium, counterfeit money, or pornographic magazines,
said merchandise are lawful as they are being used in the ordinary course of
business, the destruction of which would violate not only procedural, but
substantive due process. [18]

The argument of petitioners is totally misplaced considering the undisputed


fact that the seized computer units contained obscene materials or pornographic
files. Had it been otherwise, then, petitioners argument would have been
meritorious as there could be no basis for destroying the hard disks of petitioners
computer units.
While it may be true that the criminal case for violation of Article 201 of the
Revised Penal Code was dismissed as there was no concrete and strong evidence
pointing to them as the direct source of the subject pornographic materials, it
cannot be used as basis to recover the confiscated hard disks. At the risk of being
repetitious, it appears undisputed that the seized computer units belonging to them
contained obscene materials or pornographic files. Clearly, petitioners had no
legitimate expectation of protection of their supposed property rights.
The CA is correct in stating that the removal of the hard disk from the CPU
is a reliable way of permanently removing the obscene or pornographic files.
Significantly, Presidential Decree (PD) No. 969 is explicit. Thus:
Sec. 2. Disposition of the Prohibited Articles. The disposition of the
literature, films, prints, engravings, sculptures, paintings, or other
materials involved in the violation referred to in Section 1 hereof shall be
governed by the following rules:
a. Upon conviction of the offender, to be forfeited in favor of the
government to be destroyed.
b. Where the criminal case against any violator of this decree results in
an acquittal, the obscene/immoral literature, films, prints, engravings,
sculpture, paintings or other materials and other articles involved in the
violation referred to in Section 1 hereof shall nevertheless
be forfeited in favor of the government to be destroyed, after forfeiture
proceedings conducted by the Chief of Constabulary. [Emphasis
and underscoring supplied]

Clearly, the provision directs the forfeiture of all materials involved in


violation of the subject law. The CA was lenient with petitioners in modifying the
ruling of the RTC in that the CPUs and softwares, which were initially ordered to
be retained by the NBI, should be released in their favor with only the hard disk
removed from the CPUs and destroyed. If the softwares are determined to be
violative of Article 201 of the RPC, unlicensed or pirated, they should also be
forfeited and destroyed in the manner allowed by law. The law is clear. Only
licensed softwares that can be used for legitimate purposes should be returned to
petitioners.
To stress, P.D. No. 969 mandates the forfeiture and destruction of
pornographic materials involved in the violation of Article 201 of the Revised
Penal Code, even if the accused was acquitted.
Taking into account all the circumstances of this case, the Court holds that
the destruction of the hard disks and the softwares used in any way in the violation
of the subject law addresses the purpose of minimizing if not totally eradicating
pornography. This will serve as a lesson for those engaged in any way in the
proliferation of pornography or obscenity in this country. The Court is not
unmindful of the concerns of petitioners but their supposed property rights must be
balanced with the welfare of the public in general.
WHEREFORE, the petition is DENIED. The August 19, 2009 Court of
Appeals Decision is AFFIRMED WITH MODIFICATION in that only the
CPUs and those softwares determined to be licensed and used for legitimate
purposes shall be returned in favor of the petitioners. The hard disk drives
containing the pornographic materials and the softwares used in any way in
violation of Article 201 of the Revised Penal Code, unlicensed or pirated shall be
forfeited in favor of the Government and destroyed.

PEOPLE OF THE PHILIPPINES, Appellee, v. NOEL ENOJAS Y HINGPIT, ARNOLD GOMEZ YFABREGAS,
FERNANDO SANTOS Y DELANTAR, AND ROGER JALANDONI Y ARI, Appellants.
DECISION
ABAD, J.:
On September 4, 2006 the City Prosecutor of Las Pias charged appellants Noel Enojas y Hingpit (Enojas),
Arnold Gomez y Fabregas (Gomez), Fernando Santos y Delantar (Santos), and Roger Jalandoni y Ari
(Jalandoni) with murder before the Las Pias Regional Trial Court (RTC) in Criminal Case 06-0854. 1
crallawlibrary

PO2 Eduardo Gregorio, Jr. (PO2 Gregorio) testified that at around 10:30 in the evening of August 29, 2006,
he and PO2 Francisco Pangilinan (PO2 Pangilinan) were patrolling the vicinity of Toyota Alabang and SM
Southmall when they spotted a taxi that was suspiciously parked in front of the Aguila Auto Glass shop near
the intersection of BF Almanza and Alabang-Zapote Roads. The officers approached the taxi and asked the
driver, later identified as accused Enojas, for his documents. The latter complied but, having entertained
doubts regarding the veracity of documents shown them, they asked him to come with them to the police
station in their mobile car for further questioning. 2
crallawlibrary

Accused Enojas voluntarily went with the police officers and left his taxi behind. On reaching the 7-11
convenience store on the Zapote-Alabang Road, however, they stopped and PO2 Pangilinan went down to
relieve himself there. As he approached the stores door, however, he came upon two suspected robbers and
shot it out with them. PO2 Pangilinan shot one suspect dead and hit the other who still managed to escape.
But someone fired at PO2 Pangilinan causing his death.
On hearing the shots, PO2 Gregorio came around and fired at an armed man whom he saw running towards
Pilar Village. He saw another man, who came from the Jollibbee outlet, run towards Alabang-Zapote Road
while firing his gun at PO2 Gregorio. The latter returned fire but the men were able to take a taxi and
escape. PO2 Gregorio radioed for help and for an ambulance. On returning to his mobile car, he realized that
accused Enojas, the taxi driver they had with them had fled.
P/Insp. Ferjen Torred (Torred), the Chief of Investigation Division of the Las Pias Police, testified that he
and PO2 Teoson Rosarito (PO2 Rosarito) immediately responded to PO2 Gregorios urgent call. Suspecting
that accused Enojas, the taxi driver who fled, was involved in the attempted robbery, they searched the
abandoned taxi and found a mobile phone that Enojas apparently left behind. P/Ins. Torred instructed PO3
Joel Cambi (PO3 Cambi) to monitor its incoming messages.3
crallawlibrary

The police later ascertained that the suspect whom PO2 Pangilinan had killed was someone named Reynaldo
Mendoza who was armed with a .38 caliber revolver. The police found spent 9 mm and M-16 rifle shells at
the crime scene. Follow-up operations at nearby provinces resulted in finding the dead body of one of the
suspects, Alex Angeles, at the Metro South Medical Center along Molino, Bacoor, Cavite. 4
crallawlibrary

PO3 Cambi and PO2 Rosarito testified that they monitored the messages in accused Enojas mobile phone
and, posing as Enojas, communicated with the other accused. The police then conducted an entrapment
operation that resulted in the arrest of accused Santos and Jalandoni. Subsequently, the police were also
able to capture accused Enojas and Gomez. The prosecution presented the transcripts of the mobile phone
text messages between Enojas and some of his co-accused. 5
crallawlibrary

The victims father, Ricardo Pangilinan, testified that his son was at the time of his death 28 years old,
unmarried, and was receiving police pay of P8,000.00 to P10,000.00 per month. Ricardo spent P99,999 for
burial expense, P16,000.00 for the interment services, and P50,000.00 for purchase of the cemetery lot. 6

crallawlibrary

Manifesting in open court that they did not want to adduce any evidence or testify in the case, 7 the accused
opted to instead file a trial memorandum on March 10, 2008 for their defense. They pointed out that they
were entitled to an acquittal since they were all illegally arrested and since the evidence of the text
messages were inadmissible, not having been properly identified.
On June 2, 2008 the RTC rendered judgment,8 finding all the accused guilty of murder qualified by evident
premeditation and use of armed men with the special aggravating circumstance of use of unlicensed
firearms. It thus sentenced them to suffer the penalty of reclusion perpetua, without the possibility of parole
and to indemnify the heirs of PO2 Pangilinan with P165,999.00 as actual damages, P50,000.00 as moral

damages, P25,000.00 as exemplary damages, and P2,080,000.00 as compensation for loss of earning
capacity.
Upon review in CA-G.R. CR-H.C. 03377, on June 14, 2012 the Court of Appeals (CA) dismissed the appeal
and affirmed in toto the conviction of the accused.9 The CA, however, found the absence of evident
premeditation since the prosecution failed to prove that the several accused planned the crime before
committing it. The accused appealed from the CA to this Court. 10
crallawlibrary

The defense points out that the prosecution failed to present direct evidence that the accused Enojas,
Gomez, Santos, or Jalandoni took part in shooting PO2 Pangilinan dead. 11 This may be true but the
prosecution could prove their liability by circumstantial evidence that meets the evidentiary standard of
proof beyond reasonable doubt. It has been held that circumstantial evidence is sufficient for conviction if:
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. 12

crallawlibrary

Here the totality of the circumstantial evidence the prosecution presented sufficiently provides basis for the
conviction of all the accused. Thus:
chanRoble sVirtualawlibrary

1. PO2 Gregorio positively identified accused Enojas as the driver of the taxicab suspiciously parked in front
of the Aguila Auto Glass shop. The officers were bringing him with them to the police station because of the
questionable documents he showed upon query. Subsequent inspection of the taxicab yielded Enojas mobile
phone that contained messages which led to the entrapment and capture of the other accused who were
also taxicab drivers.
2. Enojas fled during the commotion rather than remain in the cab to go to the police station where he was
about to be taken for questioning, tending to show that he had something to hide. He certainly did not go to
the police afterwards to clear up the matter and claim his taxi.
3. PO2 Gregorio positively identified accused Gomez as one of the men he saw running away from the scene
of the shooting.
4. The text messages identified Kua Justin as one of those who engaged PO2 Pangilinan in the shootout;
the messages also referred to Kua Justin as the one who was hit in such shootout and later died in a
hospital in Bacoor, Cavite. These messages linked the other accused.
5. During the follow-up operations, the police investigators succeeded in entrapping accused Santos,
Jalandoni, Enojas, and Gomez, who were all named in the text messages.
6. The text messages sent to the phone recovered from the taxi driven by Enojas clearly made references to
the 7-11 shootout and to the wounding of Kua Justin, one of the gunmen, and his subsequent death.
7. The context of the messages showed that the accused were members of an organized group of taxicab
drivers engaged in illegal activities.
8. Upon the arrest of the accused, they were found in possession of mobile phones with call numbers that
corresponded to the senders of the messages received on the mobile phone that accused Enojas left in his
taxicab.13
The Court must, however, disagree with the CAs ruling that the aggravating circumstances of a) aid of
armed men and b) use of unlicensed firearms qualified the killing of PO2 Pangilinan to murder. In aid of
armed men, the men act as accomplices only. They must not be acting in the commission of the crime
under the same purpose as the principal accused, otherwise they are to be regarded as co-principals or coconspirators. The use of unlicensed firearm, on the other hand, is a special aggravating circumstance that is
not among the circumstances mentioned in Article 248 of the Revised Penal Code as qualifying a homicide to
murder.14 Consequently, the accused in this case may be held liable only for homicide, aggravated by the use
of unlicensed firearms, a circumstance alleged in the information.
As to the admissibility of the text messages, the RTC admitted them in conformity with the Courts earlier
Resolution applying the Rules on Electronic Evidence to criminal actions. 15 Text messages are to be proved
by the testimony of a person who was a party to the same or has personal knowledge of them. 16 Here, PO3
Cambi, posing as the accused Enojas, exchanged text messages with the other accused in order to identify
and entrap them. As the recipient of those messages sent from and to the mobile phone in his possession,

PO3 Cambi had personal knowledge of such messages and was competent to testify on them.
The accused lament that they were arrested without a valid warrant of arrest. But, assuming that this was
so, it cannot be a ground for acquitting them of the crime charged but for rejecting any evidence that may
have been taken from them after an unauthorized search as an incident of an unlawful arrest, a point that is
not in issue here. At any rate, a crime had been committedthe killing of PO2 Pangilinanand the
investigating police officers had personal knowledge of facts indicating that the persons they were to arrest
had committed it.17 The text messages to and from the mobile phone left at the scene by accused Enojas
provided strong leads on the participation and identities of the accused. Indeed, the police caught them in
an entrapment using this knowledge.
The award of damages by the courts below has to be modified to conform to current jurisprudence. 18

crallawlibrary

WHEREFORE, the Court MODIFIES the Court of Appeals Decision of June 14, 2012 in CA-G.R. CR-HC
03377. The Court instead FINDS accused-appellants Noel Enojas y Hingpit, Arnold Gomez y Fabregas,
Fernando Santos y Delantar, and Roger Jalandoni y Ari GUILTY of the lesser crime of HOMICIDEwith the
special aggravating circumstance of use of unlicensed firearms. Applying the Indeterminate Sentence Law,
the Court SENTENCES each of them to 12 years of prision mayor, as minimum, to 20 years of reclusion
temporal, as maximum. The Court also MODIFIES the award of exemplary damages by increasing it to
P30,000.00, with an additional P50,000.00 for civil indemnity.

RUSTAN ANG y PASCUA, Petitioner, vs.


THE HONORABLE COURT OF APPEALS and IRISH SAGUD, Respondents.
G.R. No. 182835; April 20, 2010
Facts:
After receiving from the accused Rustan via multimedia message service (MMS) a picture of a
naked woman with her face superimposed on the figure, Complainant filed an action against said
accused for violation of the Anti-Violence Against Women and Their Children Act or Republic Act
(R.A.) 9262.
The senders cellphone number, stated in the message, was 0921-8084768, one of the numbers that
Rustan used. Irish surmised that he copied the picture of her face from a shot he took when they
were in Baguio in 2003. The accused said to have boasted that it would be easy for him to create
similarly scandalous pictures of her and threatened to spread the picture he sent through the
internet.
The trial court later found Rustan guilty of the violation of Section 5(h) of R.A. 9262. On Rustans
appeal to the Court of Appeals (CA), the latter rendered a decision affirming the RTC decision. The
CA denied Rustans motion for reconsideration in a resolution dated April 25, 2008. Thus, Rustan
filed the present for review on certiorari.

Issue:
Whether or not the RTC properly admitted in evidence the obscene picture presented in the case?
Held:
Yes. The Supreme Court affirms the decision of the CA.
Rustan claims that the obscene picture sent to Irish through a text message constitutes an electronic
document. Thus, it should be authenticated by means of an electronic signature, as provided under
Section 1, Rule 5 of the Rules on Electronic Evidence (A.M. 01-7-01-SC).
However, Rustan is raising this objection to the admissibility of the obscene picture for the first time
before the Supreme Court. The objection is too late since he should have objected to the admission
of the picture on such ground at the time it was offered in evidence. He should be deemed to have
already waived such ground for objection.
Moreover, the rules he cites do not apply to the present criminal action. The Rules on Electronic
Evidence applies only to civil actions, quasi-judicial proceedings, and administrative proceedings.
In conclusion, the Court finds that the prosecution has proved each and every element of the crime
charged beyond reasonable doubt.

NATIONAL
CORPORATION,
Petitioner,

POWER

G.R. No. 170491


Present:

- versus YNARES-SANTIAGO, J.,


Chairperson,
HON. RAMON G. CODILLA,
JR., Presiding Judge, RTC
of Cebu, Br.19,
BANGPAI
SHIPPING COMPANY, and
WALLEM
SHIPPING,

AUSTRIA-MARTINEZ,
CALLEJO, SR.,
CHICO-NAZARIO, and

INCORPORATED,

NACHURA, JJ.

Respondents.
Promulgated:

April 4, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

Before Us is a Petition for Review on Certiorari under Rule 45


of the Rules of Civil Procedure, assailing the Decision [1]of the
Court of Appeals in CA-G.R. CEB-SP No. 00848, dated 9 November
2005, which dismissed the Petition for Certiorarifiled by the
National Power Corporation seeking to set aside the
Order[2] issued by the Regional Trial Court (RTC) of Cebu, Branch
19 dated 16 November 2004, denying admission and excluding
from the records plaintiffs (herein petitioner) Exhibits A, C, D, E, H
and its sub-markings, I, J, and its sub-markings, K, L, M and its
sub-markings, N and its sub-markings, O, P and its sub-markings,
Q and its sub-markings, R and S and its sub-markings.

On 20 April 1996, M/V Dibena Win, a vessel of foreign


registry
owned
and
operated
by
private
respondent BangpaiShipping,
Co.,
allegedly
bumped
and
damaged petitioners Power Barge 209 which was then moored at
the Cebu International Port. Thus, on 26 April 1996, petitioner
filed before the Cebu RTC a complaint for damages against
private respondent BangpaiShipping Co., for the alleged damages
caused on petitioners power barges.

Thereafter, petitioner filed an Amended Complaint dated 8


July 1996 impleading herein private respondent WallemShipping,
Inc., as additional defendant, contending that the latter is a ship
agent
of Bangpai Shipping
Co. On 18
September
1996, Wallem Shipping, Inc. filed a Motion to Dismiss which was
subsequently denied by public respondent Judge in an Order
dated 20 October 1998. Bangpai Shipping Co. likewise filed a
Motion to Dismiss which was also denied by public respondent
Judge in an Order issued on 24 January 2003.

Petitioner, after adducing evidence during the trial of the


case, filed a formal offer of evidence before the lower court on 2
February 2004 consisting of Exhibits A to V together with the submarked
portions
thereof. Consequently,
private
respondentsBangpai Shipping Co. and Wallem Shipping, Inc. filed
their respective objections to petitioners formal offer of evidence.

On 16 November 2004, public respondent judge issued the


assailed order denying the admission and excluding from the
records petitioners Exhibits A, C, D, E, H and its sub-markings, I, J
and its sub-markings, K, L, M and its sub-markings, N and its submarkings, O, P and its sub-markings, Q and its sub-markings, R
and S and its sub-markings. According to the court a quo:

The Court finds merit in the objections raised and the motion to
strike out filed respectively by the defendants. The record shows that

the plaintiff has been given every opportunity to present the originals
of the Xerox or photocopies of the documents it offered. It never
produced the originals. The plaintiff attempted to justify the admission
of the photocopies by contending that the photocopies offered are
equivalent to the original of the document on the basis of the
Electronic
Evidence
(Comment
to
DefendantWallem Philippines Objections and Motion to Strike). But as
rightly pointed out in defendant Wallems Reply to the Comment of
Plaintiff, the Xerox copies do not constitute the electronic evidence
defined in Section 1 of Rule 2 of the Rules on Electronic Evidence as
follows:

(h) Electronic document refers to information or the


representation of information, data, figures, symbols or
other models of written expression, described or however
represented, by which a right is established or an
obligation extinguished, or by which a fact may be proved
and affirmed, which is received, recorded, transmitted,
stored, processed, retrieved or produced electronically. It
includes digitally signed documents and any printout,
readable by sight or other means which accurately
reflects the electronic data message or electronic
document. For the purpose of these Rules, the term
electronic document may be used interchangeably with
electronic data message.

The information in those Xerox or photocopies was not received,


recorded, retrieved or produced electronically. Moreover, such
electronic evidence must be authenticated (Sections 1 and 2, Rule 5,
Rules on Electronic Evidence), which the plaintiff failed to do.Finally,
the required Affidavit to prove the admissibility and evidentiary weight
of the alleged electronic evidence (Sec. 1, Rule 9,Ibid) was not
executed, much less presented in evidence.

The Xerox or photocopies offered should, therefore, be stricken off


the record. Aside from their being not properly identified by any
competent witness, the loss of the principals thereof was not
established by any competent proof.

xxxx

WHEREFORE, plaintiffs Exhibits A, C, D, E, H and its sub-markings,


I, J, and its sub-markings, K, L, M and its sub-markings, N and its submarkings, O, P and its sub-markings, Q and its sub-markings, and R are
hereby DENIED admission and excluded from the records. However,
these excluded evidence should be attached to the records of this case
to enable the appellate court to pass upon them should an appeal be
taken from the decision on the merits to be rendered upon the
termination of the trial of this case.

Exhibits S and its sub-markings are also DENIED admission for


lack of proper identification since the witness who brought these
pictures expressly admitted that he was not present when the photos
were taken and had not knowledge when the same where taken. [3]

Upon denial of petitioners Motion for Reconsideration in an


Order dated 20 April 2005, petitioner filed a Petition
forCertiorari under Rule 65 of the Rules of Civil Procedure before
the Court of Appeals maintaining that public respondent Judge
acted with grave abuse of discretion amounting to lack or excess
of jurisdiction in denying the admission of its Exhibits A, C, D, E, H
and its sub-markings, I, J and its sub-markings, K, L, M and its
sub-markings, N and its sub-markings, O, P and its sub-markings,
Q and its sub-markings, R, and S and its sub-markings.

On 9 November 2005, the appellate court issued a Decision


dismissing petitioners petition for certiorari, the pertinent portions
of which elucidate:

After a judicious scrutiny of the record of the case on hand,


together with the rules and jurisprudence which are applicable in the
premises, we have come up with a finding that the petition for
certiorari filed in this case is not meritorious.

It appears that there is no sufficient showing by the petitioner


that the respondent judge acted with grave abuse of discretion in
issuing the assailed orders in Civil Case No. CEB-18662. As what our
jurisprudence tells us, grave abuse of discretion is meant such
capricious and whimsical exercise of judgment as would be equivalent
to lack of jurisdiction x x x.

In the case at bench, what has been shown to the contrary by


the totality of the record on hand is that the respondent judge acted
correctly and within the pale of his sound discretion in issuing the
assailed order, dated November 16, 2004, in Civil Case No.CEB-18662.

Indeed, it appears that the pieces of petitioners documentary


evidence which were denied admission by the respondent judge were
not properly identified by any competent witness. As pointed out by
the respondent Bangpai Shipping Company in its comment on the
petition filed in this case which reproduces some excerpts of the
testimonies in the court a quo of Atty. Marianito De Los Santos, Engr.
Nestor Enriquez, Jr. and Mr. Rodulfo I. Pagaling, the said witnesses did
not have personal knowledge of and participation in the preparation
and making of the pieces of documentary evidence denied admission
by respondent judge x x x. In other words, there was lack of proper
identification of said pieces of documentary evidence. x x x.

Then another ground for denying admission of petitioners


Exhibits A, C, D, E, H, I, J, K, L, M, N, O, P, Q, R, and S by the respondent
judge is that said pieces of documentary evidence were merely
photocopies of purported documents or papers. There is no gainsaying
the fact that the respondent judge acted within the pale of his
discretion when he denied admission of said documentary
evidence. Section 3 of Rule 130 of the Rules of Court of the Philippines
is very explicit in providing that, when the subject of inquiry are the
contents of documents, no evidence shall be admissible other than the
original documents themselves, except in certain cases specifically so
enumerated therein, and the petitioner has not shown that the nonpresentation or non-production of its original documentary pieces of
evidence falls under such exceptions. As aptly pointed out by the
respondent judge in the order issued by him on November 16, 2004:

x x x The record shows that the plaintiff (petitioner


herein) has been given every opportunity to present the
originals of the Xerox or photocopies of the documents it
offered. It never produced said originals.

So, the petitioner has only itself to blame for the respondent
judges denial of admission of its aforementioned documentary
evidence.

Of course, the petitioner tries to contend that the photocopies of


documents offered by it are equivalent to the original documents that
it sought to offer in evidence, based on the Rules on Electronic
Evidence which were in force and effect since August 1,
2001. However, such a contention is devoid of merit. The pieces of
documentary evidence offered by the petitioner in Civil Case CEB18662 which were denied admission by the respondent judge do not
actually constitute as electronic evidence as defined in the Rules on
Electronic Evidence. The informations therein were not received,
retrieved or produced electronically. The petitioner has not adequately
established that its documentary evidence were electronic
evidence. it has not properly authenticated such evidence as electronic
documents, assuming arguendo that they are. Lastly, the petitioner
has not properly established by affidavit pursuant to Rule 9 of the
Rules on Electronic Evidence the admissibility and evidentiary weight
of said documentary evidence.

Thus, by any legal yardstick, it is manifest that the respondent


judge did not commit grave abuse of discretion in denying admission of
the aforementioned documentary evidence of petitioner.

But even if it be granted just for the sake of argument that the
respondent judge committed an error in denying the aforementioned
documentary evidence of the petitioner, still the petition for certiorari
filed in this case must fail. Such error would at most be only an error of
law and not an error of jurisdiction. In Lee vs. People, 393 SCRA 397,
the Supreme Court of the Philippinessaid that certiorari will not lie in
case of an error of law. x x x.

WHEREFORE, in view of the foregoing premises, judgment is


hereby rendered by us DISMISSING the petition filed in this case and
AFFIRMING the assailed orders issued by respondent judge in Civil Case
No. CEB-18662.[4]

Aggrieved by the aforequoted decision, petitioner filed the


instant petition.

The focal point of this entire controversy is petitioners


obstinate contention that the photocopies it offered as formal
evidence before the trial court are the functional equivalent of
their original based on its inimitable interpretation of the Rules on
Electronic Evidence.

Petitioner insists that, contrary to the rulings of both the trial


court and the appellate court, the photocopies it presented as
documentary evidence actually constitute electronic evidence
based on its own premise that an electronic document as defined
under Section 1(h), Rule 2 of the Rules on Electronic Evidence is
not limited to information that is received, recorded, retrieved or
produced electronically. Rather, petitioner maintains that an
electronic document can also refer to other modes of written
expression that is produced electronically, such as photocopies,
as included in the sections catch-all proviso: any print-out or
output, readable by sight or other means.

We do not agree.

In order to shed light to the issue of whether or not the


photocopies are indeed electronic documents as contemplated in
Republic Act No. 8792 or the Implementing Rules and Regulations
of the Electronic Commerce Act, as well as the Rules on Electronic
Evidence, we shall enumerate the following documents offered as
evidence by the petitioner, to wit:

1. Exhibit A is a photocopy of a letter manually signed by a certain Jose C. Troyo,

with RECEIVED stamped thereon, together with a handwritten date;


2. Exhibit C is a photocopy of a list of estimated cost of damages of petitioners

power barges 207 and 209 prepared by Hopewell Mobile Power Systems
Corporation and manually signed by Messrs. Rex Malaluan and Virgilio Asprer;
3. Exhibit D is a photocopy of a letter manually signed by a certain Nestor G.

Enriquez, Jr., with RECEIVED stamped thereon, together with a handwritten


notation of the date it was received;
4. Exhibit E is a photocopy of a Standard Marine Protest Form which was filled

up and accomplished by Rex Joel C. Malaluan in his own handwriting and


signed by him. Portions of the Jurat were handwritten, and manually signed
by the Notary Public;
5. Exhibit H is a photocopy of a letter manually signed by Mr. Nestor G.

Enriquez, Jr. with RECEIVED stamped thereon, together with a handwritten


notation of the date it was received;
6. Exhibit I is a photocopy of a computation of the estimated energy loss

allegedly suffered by petitioner which was manually signed by Mr. Nestor G.


Enriquez, Jr.;
7. Exhibit J is a photocopy of a letter containing the breakdown of the cost

estimate, manually signed by Mr. Nestor G. Enriquez, Jr., with RECEIVED


stamped thereon, together with a handwritten notation of the date it was
received, and other handwritten notations;
8. Exhibit

K
is
a
photocopy
of
the
Subpoena Duces Tecum Ad Testificandum written using a manual typewriter,
signed manually by Atty. Ofelia Polo-De Los Reyes, with a handwritten
notation when it was received by the party;

9. Exhibit L is a photocopy of a portion of the electricity supply and operation

and maintenance agreement between petitioner and Hopewell, containing


handwritten notations and every page containing three unidentified manually
placed signatures;

10. Exhibit M is a photocopy of the Notice of Termination with attachments

addressed to Rex Joel C. Malaluan, manually signed by Jaime S.Patinio, with a


handwritten notation of the date it was received. The sub-markings also
contain manual signatures and/or handwritten notations;
11. Exhibit N is a photocopy of a letter of termination with attachments

addressed to VIrgilio Asprer and manually signed by Jaime S. Patino. The submarkings contain manual signatures and/or handwritten notations;
12. Exhibit O is the same photocopied document marked as Annex C;
13. Exhibit

P is a photocopy of an incident report manually signed by


Messrs. Malaluan and Bautista and by the Notary Public, with other
handwritten notations;

14. Exhibit Q is a photocopy of a letter manually signed by Virgilio Asprer and by

a Notary Public, together with other handwritten notations.

On the other hand, an electronic document refers


to information or the representation of information, data,
figures, symbols or other models of written expression,
described or however represented, by which a right is
established or an obligation extinguished, or by which a fact may
be proved and affirmed, which is received, recorded,
transmitted, stored, processed, retrieved or produced
electronically.[5] It includes digitally signed documents and any
printout, readable by sight or other means which accurately
reflects the electronic data message or electronic document. [6]

The rules use the word information to define an electronic


document received, recorded, transmitted, stored, processed,
retrieved or produced electronically. This would suggest that an
electronic document is relevant only in terms of the information
contained therein, similar to any other document which is
presented in evidence as proof of its contents. [7] However, what
differentiates an electronic document from a paper-based
document is the manner by which the information is processed;
clearly, the information contained in an electronic document is

received, recorded, transmitted, stored, processed, retrieved or


produced electronically.

A perusal of the information contained in the photocopies


submitted by petitioner will reveal that not all of the contents
therein, such as the signatures of the persons who purportedly
signed the documents, may be recorded or produced
electronically. By no stretch of the imagination can a persons
signature affixed manually be considered as information
electronically received, recorded, transmitted, stored, processed,
retrieved or produced. Hence, the argument of petitioner that
since these paper printouts were produced through an electronic
process, then these photocopies are electronic documents as
defined in the Rules on Electronic Evidence is obviously an
erroneous, if not preposterous, interpretation of the law. Having
thus declared that the offered photocopies are not tantamount to
electronic documents, it is consequential that the same may not
be considered as the functional equivalent of their original as
decreed in the law.

Furthermore, no error can be ascribed to the court a quo in


denying
admission
and
excluding
from
the
records petitionersExhibits A, C, D, E, H and its sub-markings, I, J
and its sub-markings, K, L, M and its sub-markings, N and its submarkings, O, P and its sub-markings, Q and its sub-markings, and
R. The trial court was correct in rejecting these photocopies as
they violate the best evidence rule and are therefore of no
probative value being incompetent pieces of evidence. Before the
onset of liberal rules of discovery, and modern technique of
electronic copying, the best evidence rule was designed to guard
against incomplete or fraudulent proof and the introduction of
altered copies and the withholding of the originals. [8] But the
modern justification for the rule has expanded from the
prevention of fraud to a recognition that writings occupy a central
position in the law.[9] The importance of the precise terms of
writings in the world of legal relations, the fallibility of the human
memory as reliable evidence of the terms, and the hazards of

inaccurate or incomplete duplicate are the concerns addressed by


the best evidence rule.[10]

Moreover, as mandated under Section 2, Rule 130 of the


Rules of Court:

"SECTION 2. Original writing must be produced; exceptions. There can


be no evidence of a writing the contents of which is the subject of
inquiry, other than the original writing itself, except in the following
cases:
(a) When the original has been lost, destroyed, or cannot be
produced in court;
(b) When the original is in the possession of the party against
whom the evidence is offered, and the latter fails to produce it
afterreasonable notice;
(c) When the original is a record or other document in the custody of
a public officer;
(d) When the original has been recorded in an existing record
a certified copy of which is made evidence by law;
(e) 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."

When the original document has been lost or destroyed, or


cannot be produced in court, the offeror, upon proof of its
execution or existence and the cause of its unavailability without
bad faith on his part, may prove its contents by a copy, or by a
recital of its contents in some authentic document, or by the
testimony of witnesses in the order stated. [11] The offeror of
secondary evidence is burdened to prove the predicates thereof:
(a) the loss or destruction of the original without bad faith on the
part of the proponent/offeror which can be shown by
circumstantial evidence of routine practices of destruction of

documents;[12] (b) the proponent must prove by a fair


preponderance of evidence as to raise a reasonable inference of
the loss or destruction of the original copy; and (c) it must be
shown that a diligent and bona fide but unsuccessful search has
been made for the document in the proper place or places.
[13]
However, in the case at bar, though petitioner insisted in
offering the photocopies as documentary evidence, it failed to
establish that such offer was made in accordance with the
exceptions
as
enumerated
under
the abovequoted rule. Accordingly, we find no error in the Order
of the court a quo denying admissibility of the photocopies
offered by petitioner as documentary evidence.

Finally, it perplexes this Court why petitioner continued to


obdurately disregard the opportunities given by the trial court for
it to present the originals of the photocopies it presented yet
comes before us now praying that it be allowed to present the
originals of the exhibits that were denied admission or in case the
same are lost, to lay the predicate for the admission of secondary
evidence. Had petitioner presented the originals of the
documents to the court instead of the photocopies it obstinately
offered as evidence, or at the very least laid the predicate for the
admission of said photocopies, this controversy would not have
unnecessarily been brought before the appellate court and finally
to this Court for adjudication. Had it not been for petitioners
intransigence, the merits of petitioners complaint for damages
would have been decided upon by the trial court long ago. As
aptly articulated by the Court of Appeals, petitioner has only itself
to blame for the respondent judges denial of admission of its
aforementioned documentary evidence and consequently, the
denial of its prayer to be given another opportunity to present
the originals of the documents that were denied admission nor to
lay the predicate for the admission of secondary evidence in case
the same has been lost.

WHEREFORE, premises considered, the instant petition is


hereby DENIED. The Decision of the Court of Appeals in CA-G.R.
CEB-SP
No.
00848,
dated 9
November
2005 is
hereby AFFIRMED. Costs against petitioner.

MCC INDUSTRIAL SALES CORPORATION, petitioner,


vs.
SSANGYONG CORPORATION, respondents.
DECISION
NACHURA, J.:
Before the Court is a petition for review on certiorari of the Decision1 of the Court of Appeals in CAG.R. CV No. 82983 and its Resolution2 denying the motion for reconsideration thereof.
Petitioner MCC Industrial Sales (MCC), a domestic corporation with office at Binondo, Manila, is
engaged in the business of importing and wholesaling stainless steel products. 3 One of its suppliers
is the Ssangyong Corporation (Ssangyong),4 an international trading company5 with head office in
Seoul, South Korea and regional headquarters in Makati City, Philippines. 6 The two corporations
conducted business through telephone calls and facsimile or telecopy transmissions. 7 Ssangyong
would send the pro forma invoices containing the details of the steel product order to MCC; if the
latter conforms thereto, its representative affixes his signature on the faxed copy and sends it back
to Ssangyong, again by fax.8
On April 13, 2000, Ssangyong Manila Office sent, by fax, a letter9 addressed to Gregory Chan, MCC
Manager [also the President10 of Sanyo Seiki Stainless Steel Corporation], to confirm MCC's and
Sanyo Seiki's order of220 metric tons (MT) of hot rolled stainless steel under a preferential rate
of US$1,860.00 per MT. Chan, on behalf of the corporations, assented and affixed his signature on
the conforme portion of the letter.11
On April 17, 2000, Ssangyong forwarded to MCC Pro Forma Invoice No. ST2POSTSO40112 containing the terms and conditions of the transaction. MCC sent back by fax to
Ssangyong the invoice bearing the conformity signature 13 of Chan. As stated in the pro
forma invoice, payment for the ordered steel products would be made through an irrevocable letter
of credit (L/C) at sight in favor of Ssangyong.14 Following their usual practice, delivery of the goods
was to be made after the L/C had been opened.
In the meantime, because of its confirmed transaction with MCC, Ssangyong placed the order with
its steel manufacturer, Pohang Iron and Steel Corporation (POSCO), in South Korea 15 and paid the
same in full.
Because MCC could open only a partial letter of credit, the order for 220MT of steel was split into
two,16 one for110MT covered by Pro Forma Invoice No. ST2-POSTS0401-117 and another for 110MT
covered by ST2-POSTS0401-2,18 both dated April 17, 2000.
On June 20, 2000, Ssangyong, through its Manila Office, informed Sanyo Seiki and Chan, by way of
a fax transmittal, that it was ready to ship 193.597MT of stainless steel from Korea to the Philippines.

It requested that the opening of the L/C be facilitated. 19 Chan affixed his signature on the fax
transmittal and returned the same, by fax, to Ssangyong.20
Two days later, on June 22, 2000, Ssangyong Manila Office informed Sanyo Seiki, thru Chan, that it
was able to secure a US$30/MT price adjustment on the contracted price of US$1,860.00/MT for the
200MT stainless steel, and that the goods were to be shipped in two tranches, the first 100MT on
that day and the second 100MT not later than June 27, 2000. Ssangyong reiterated its request for
the facilitation of the L/C's opening.21
Ssangyong later, through its Manila Office, sent a letter, on June 26, 2000, to the Treasury Group of
Sanyo Seiki that it was looking forward to receiving the L/C details and a cable copy thereof that
day.22 Ssangyong sent a separate letter of the same date to Sanyo Seiki requesting for the opening
of the L/C covering payment of the first 100MT not later than June 28, 2000. 23 Similar letters were
transmitted by Ssangyong Manila Office on June 27, 2000. 24 On June 28, 2000, Ssangyong sent
another facsimile letter to MCC stating that its principal in Korea was already in a difficult
situation25 because of the failure of Sanyo Seiki and MCC to open the L/C's.
The following day, June 29, 2000, Ssangyong received, by fax, a letter signed by Chan, requesting
an extension of time to open the L/C because MCC's credit line with the bank had been fully availed
of in connection with another transaction, and MCC was waiting for an additional credit line. 26 On the
same date, Ssangyong replied, requesting that it be informed of the date when the L/C would be
opened, preferably at the earliest possible time, since its Steel Team 2 in Korea was having
problems and Ssangyong was incurring warehousing costs. 27 To maintain their good business
relationship and to support MCC in its financial predicament, Ssangyong offered to negotiate with its
steel manufacturer, POSCO, another US$20/MT discount on the price of the stainless steel ordered.
This was intimated in Ssangyong's June 30, 2000 letter to MCC.28 On July 6, 2000, another follow-up
letter29 for the opening of the L/C was sent by Ssangyong to MCC.
However, despite Ssangyong's letters, MCC failed to open a letter of credit. 30 Consequently, on
August 15, 2000, Ssangyong, through counsel, wrote Sanyo Seiki that if the L/C's were not opened,
Ssangyong would be compelled to cancel the contract and hold MCC liable for damages for breach
thereof amounting to US$96,132.18, inclusive of warehouse expenses, related interests and
charges.31
Later, Pro Forma Invoice Nos. ST2-POSTS080-132 and ST2-POSTS080-233 dated August 16, 2000
were issued by Ssangyong and sent via fax to MCC. The invoices slightly varied the terms of the
earlier pro forma invoices (ST2-POSTSO401, ST2-POSTS0401-1 and ST2-POSTS0401-2), in that
the quantity was now officially 100MTper invoice and the price was reduced to US$1,700.00 per MT.
As can be gleaned from the photocopies of the said August 16, 2000 invoices submitted to the court,
they both bear the conformity signature of MCC Manager Chan.
On August 17, 2000, MCC finally opened an L/C with PCIBank for US$170,000.00 covering payment
for 100MT of stainless steel coil under Pro Forma Invoice No. ST2-POSTS080-2.34 The goods
covered by the said invoice were then shipped to and received by MCC. 35
MCC then faxed to Ssangyong a letter dated August 22, 2000 signed by Chan, requesting for a price
adjustment of the order stated in Pro Forma Invoice No. ST2-POSTS080-1, considering that the
prevailing price of steel at that time was US$1,500.00/MT, and that MCC lost a lot of money due to a
recent strike.36
Ssangyong rejected the request, and, on August 23, 2000, sent a demand letter 37 to Chan for the
opening of the second and last L/C of US$170,000.00 with a warning that, if the said L/C was not

opened by MCC on August 26, 2000, Ssangyong would be constrained to cancel the contract and
hold MCC liable for US$64,066.99 (representing cost difference, warehousing expenses, interests
and charges as of August 15, 2000) and other damages for breach. Chan failed to reply.
Exasperated, Ssangyong through counsel wrote a letter to MCC, on September 11, 2000, canceling
the sales contract under ST2-POSTS0401-1 /ST2-POSTS0401-2, and demanding payment of
US$97,317.37 representing losses, warehousing expenses, interests and charges. 38
Ssangyong then filed, on November 16, 2001, a civil action for damages due to breach of contract
against defendants MCC, Sanyo Seiki and Gregory Chan before the Regional Trial Court of Makati
City. In its complaint,39 Ssangyong alleged that defendants breached their contract when they
refused to open the L/C in the amount of US$170,000.00 for the remaining 100MT of steel under Pro
Forma Invoice Nos. ST2-POSTS0401-1and ST2-POSTS0401-2.
After Ssangyong rested its case, defendants filed a Demurrer to Evidence40 alleging that Ssangyong
failed to present the original copies of the pro forma invoices on which the civil action was based. In
an Order dated April 24, 2003, the court denied the demurrer, ruling that the documentary evidence
presented had already been admitted in the December 16, 2002 Order 41 and their admissibility finds
support in Republic Act (R.A.) No. 8792, otherwise known as the Electronic Commerce Act of 2000.
Considering that both testimonial and documentary evidence tended to substantiate the material
allegations in the complaint, Ssangyong's evidence sufficed for purposes of a prima facie case. 42
After trial on the merits, the RTC rendered its Decision43 on March 24, 2004, in favor of Ssangyong.
The trial court ruled that when plaintiff agreed to sell and defendants agreed to buy the 220MT of
steel products for the price of US$1,860 per MT, the contract was perfected. The subject transaction
was evidenced by Pro FormaInvoice Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2, which were
later amended only in terms of reduction of volume as well as the price per MT, following Pro
Forma Invoice Nos. ST2-POSTS080-1 and ST2-POSTS080-2. The RTC, however, excluded Sanyo
Seiki from liability for lack of competent evidence. The fallo of the decision reads:
WHEREFORE, premises considered, Judgment is hereby rendered ordering defendants
MCC Industrial Sales Corporation and Gregory Chan, to pay plaintiff, jointly and severally the
following:
1) Actual damages of US$93,493.87 representing the outstanding principal claim plus
interest at the rate of 6% per annum from March 30, 2001.
2) Attorney's fees in the sum of P50,000.00 plus P2,000.00 per counsel's appearance in
court, the same being deemed just and equitable considering that by reason of defendants'
breach of their obligation under the subject contract, plaintiff was constrained to litigate to
enforce its rights and recover for the damages it sustained, and therefore had to engage the
services of a lawyer.
3) Costs of suit.
No award of exemplary damages for lack of sufficient basis.
SO ORDERED.44

On April 22, 2004, MCC and Chan, through their counsel of record, Atty. Eladio B. Samson, filed their
Notice of Appeal.45 On June 8, 2004, the law office of Castillo Zamora & Poblador entered its
appearance as their collaborating counsel.
In their Appeal Brief filed on March 9, 2005,46 MCC and Chan raised before the CA the following
errors of the RTC:
I. THE HONORABLE COURT A QUO PLAINLY ERRED IN FINDING THAT APPELLANTS
VIOLATED THEIR CONTRACT WITH APPELLEE
A. THE HONORABLE COURT A QUO PLAINLY ERRED IN FINDING THAT
APPELLANTS AGREED TO PURCHASE 200 METRIC TONS OF STEEL
PRODUCTS FROM APPELLEE, INSTEAD OF ONLY 100 METRIC TONS.
1. THE HONORABLE COURT A QUO PLAINLY ERRED IN ADMITTING IN
EVIDENCE THEPRO FORMA INVOICES WITH REFERENCE NOS. ST2POSTS0401-1 AND ST2-POSTS0401-2.
II. THE HONORABLE COURT A QUO PLAINLY ERRED IN AWARDING ACTUAL
DAMAGES TO APPELLEE.
III. THE HONORABLE COURT A QUO PLAINLY ERRED IN AWARDING ATTORNEY'S
FEES TO APPELLEE.
IV. THE HONORABLE COURT A QUO PLAINLY ERRED IN FINDING APPELLANT
GREGORY CHAN JOINTLY AND SEVERALLY LIABLE WITH APPELLANT MCC.47
On August 31, 2005, the CA rendered its Decision48 affirming the ruling of the trial court, but
absolving Chan of any liability. The appellate court ruled, among others, that Pro Forma Invoice
Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2 (Exhibits "E", "E-1" and "F") were admissible in
evidence, although they were mere facsimile printouts of MCC's steel orders. 49 The dispositive
portion of the appellate court's decision reads:
WHEREFORE, premises considered, the Court holds:
(1) The award of actual damages, with interest, attorney's fees and costs ordered by the
lower court is hereby AFFIRMED.
(2) Appellant Gregory Chan is hereby ABSOLVED from any liability.
SO ORDERED.50
A copy of the said Decision was received by MCC's and Chan's principal counsel, Atty. Eladio B.
Samson, on September 14, 2005.51 Their collaborating counsel, Castillo Zamora &
Poblador,52 likewise, received a copy of the CA decision on September 19, 2005. 53
On October 4, 2005, Castillo Zamora & Poblador, on behalf of MCC, filed a motion for
reconsideration of the said decision.54 Ssangyong opposed the motion contending that the decision
of the CA had become final and executory on account of the failure of MCC to file the said motion
within the reglementary period. The appellate court resolved, on November 22, 2005, to deny the
motion on its merits,55 without, however, ruling on the procedural issue raised.

Aggrieved, MCC filed a petition for review on certiorari56 before this Court, imputing the following
errors to the Court of Appeals:
THE COURT OF APPEALS DECIDED A LEGAL QUESTION NOT IN ACCORDANCE WITH
JURISPRUDENCE AND SANCTIONED A DEPARTURE FROM THE USUAL AND
ACCEPTED COURSE OF JUDICIAL PROCEEDINGS BY REVERSING THE COURT A
QUO'S DISMISSAL OF THE COMPLAINT IN CIVIL CASE NO. 02-124 CONSIDERING
THAT:
I. THE COURT OF APPEALS ERRED IN SUSTAINING THE ADMISSIBILITY IN
EVIDENCE OF THE PRO-FORMA INVOICES WITH REFERENCE NOS. ST2POSTSO401-1 AND ST2-POSTSO401-2, DESPITE THE FACT THAT THE SAME
WERE MERE PHOTOCOPIES OF FACSIMILE PRINTOUTS.
II. THE COURT OF APPEALS FAILED TO APPRECIATE THE OBVIOUS FACT
THAT, EVEN ASSUMING PETITIONER BREACHED THE SUPPOSED CONTRACT,
THE FACT IS THAT PETITIONER FAILED TO PROVE THAT IT SUFFERED ANY
DAMAGES AND THE AMOUNT THEREOF.
III. THE AWARD OF ACTUAL DAMAGES IN THE AMOUNT OF US$93,493.87 IS
SIMPLY UNCONSCIONABLE AND SHOULD HAVE BEEN AT LEAST REDUCED, IF
NOT DELETED BY THE COURT OF APPEALS.57
In its Comment, Ssangyong sought the dismissal of the petition, raising the following arguments: that
the CA decision dated 15 August 2005 is already final and executory, because MCC's motion for
reconsideration was filed beyond the reglementary period of 15 days from receipt of a copy thereof,
and that, in any case, it was a pro forma motion; that MCC breached the contract for the purchase of
the steel products when it failed to open the required letter of credit; that the printout copies and/or
photocopies of facsimile or telecopy transmissions were properly admitted by the trial court because
they are considered original documents under R.A. No. 8792; and that MCC is liable for actual
damages and attorney's fees because of its breach, thus, compelling Ssangyong to litigate.
The principal issues that this Court is called upon to resolve are the following:
I Whether the CA decision dated 15 August 2005 is already final and executory;
II Whether the print-out and/or photocopies of facsimile transmissions are electronic evidence and
admissible as such;
III Whether there was a perfected contract of sale between MCC and Ssangyong, and, if in the
affirmative, whether MCC breached the said contract; and
IV Whether the award of actual damages and attorney's fees in favor of Ssangyong is proper and
justified.
-IIt cannot be gainsaid that in Albano v. Court of Appeals,58 we held that receipt of a copy of the
decision by one of several counsels on record is notice to all, and the period to appeal commences
on such date even if the other counsel has not yet received a copy of the decision. In this case,
when Atty. Samson received a copy of the CA decision on September 14, 2005, MCC had only

fifteen (15) days within which to file a motion for reconsideration conformably with Section 1, Rule 52
of the Rules of Court, or to file a petition for review on certiorari in accordance with Section 2, Rule
45. The period should not be reckoned from September 29, 2005 (when Castillo Zamora & Poblador
received their copy of the decision) because notice to Atty. Samson is deemed notice to
collaborating counsel.
We note, however, from the records of the CA, that it was Castillo Zamora & Poblador, not Atty.
Samson, which filed both MCC's and Chan's Brief and Reply Brief. Apparently, the arrangement
between the two counsels was for the collaborating, not the principal, counsel to file the appeal brief
and subsequent pleadings in the CA. This explains why it was Castillo Zamora & Poblador which
filed the motion for the reconsideration of the CA decision, and they did so on October 5, 2005, well
within the 15-day period from September 29, 2005, when they received their copy of the CA
decision. This could also be the reason why the CA did not find it necessary to resolve the question
of the timeliness of petitioner's motion for reconsideration, even as the CA denied the same.
Independent of this consideration though, this Court assiduously reviewed the records and found
that strong concerns of substantial justice warrant the relaxation of this rule.
In Philippine Ports Authority v. Sargasso Construction and Development Corporation,59 we ruled that:
In Orata v. Intermediate Appellate Court, we held that where strong considerations of
substantive justice are manifest in the petition, this Court may relax the strict application of
the rules of procedure in the exercise of its legal jurisdiction. In addition to the basic merits of
the main case, such a petition usually embodies justifying circumstance which warrants our
heeding to the petitioner's cry for justice in spite of the earlier negligence of counsel. As we
held in Obut v. Court of Appeals:
[W]e cannot look with favor on a course of action which would place the
administration of justice in a straight jacket for then the result would be a poor kind of
justice if there would be justice at all. Verily, judicial orders, such as the one subject
of this petition, are issued to be obeyed, nonetheless a non-compliance is to be dealt
with as the circumstances attending the case may warrant. What should guide
judicial action is the principle that a party-litigant is to be given the fullest opportunity
to establish the merits of his complaint or defense rather than for him to lose life,
liberty, honor or property on technicalities.
The rules of procedure are used only to secure and not override or frustrate justice. A six-day
delay in the perfection of the appeal, as in this case, does not warrant the outright dismissal
of the appeal. InDevelopment Bank of the Philippines vs. Court of Appeals, we gave due
course to the petitioner's appeal despite the late filing of its brief in the appellate court
because such appeal involved public interest. We stated in the said case that the Court may
exempt a particular case from a strict application of the rules of procedure where the
appellant failed to perfect its appeal within the reglementary period, resulting in the appellate
court's failure to obtain jurisdiction over the case. In Republic vs. Imperial, Jr., we also held
that there is more leeway to exempt a case from the strictness of procedural rules when the
appellate court has already obtained jurisdiction over the appealed case. We emphasize
that:
[T]he rules of procedure are mere tools intended to facilitate the attainment of justice,
rather than frustrate it. A strict and rigid application of the rules must always be
eschewed when it would subvert the rule's primary objective of enhancing fair trials
and expediting justice. Technicalities should never be used to defeat the substantive

rights of the other party. Every party-litigant must be afforded the amplest opportunity
for the proper and just determination of his cause, free from the constraints of
technicalities.60
Moreover, it should be remembered that the Rules were promulgated to set guidelines in the orderly
administration of justice, not to shackle the hand that dispenses it. Otherwise, the courts would be
consigned to being mere slaves to technical rules, deprived of their judicial discretion. Technicalities
must take a backseat to substantive rights. After all, it is circumspect leniency in this respect that will
give the parties the fullest opportunity to ventilate the merits of their respective causes, rather than
have them lose life, liberty, honor or property on sheer technicalities. 61
The other technical issue posed by respondent is the alleged pro forma nature of MCC's motion for
reconsideration, ostensibly because it merely restated the arguments previously raised and passed
upon by the CA.
In this connection, suffice it to say that the mere restatement of arguments in a motion for
reconsideration does not per se result in a pro forma motion. In Security Bank and Trust Company,
Inc. v. Cuenca,62 we held that a motion for reconsideration may not be necessarily pro forma even if it
reiterates the arguments earlier passed upon and rejected by the appellate court. A movant may
raise the same arguments precisely to convince the court that its ruling was erroneous. Furthermore,
the pro forma rule will not apply if the arguments were not sufficiently passed upon and answered in
the decision sought to be reconsidered.
- II The second issue poses a novel question that the Court welcomes. It provides the occasion for this
Court to pronounce a definitive interpretation of the equally innovative provisions of the Electronic
Commerce Act of 2000 (R.A. No. 8792) vis--vis the Rules on Electronic Evidence.
Although the parties did not raise the question whether the original facsimile transmissions are
"electronic data messages" or "electronic documents" within the context of the Electronic Commerce
Act (the petitioner merely assails as inadmissible evidence the photocopies of the said facsimile
transmissions), we deem it appropriate to determine first whether the said fax transmissions are
indeed within the coverage of R.A. No. 8792 before ruling on whether the photocopies thereof are
covered by the law. In any case, this Court has ample authority to go beyond the pleadings when, in
the interest of justice or for the promotion of public policy, there is a need to make its own findings in
order to support its conclusions.63
Petitioner contends that the photocopies of the pro forma invoices presented by respondent
Ssangyong to prove the perfection of their supposed contract of sale are inadmissible in evidence
and do not fall within the ambit of R.A. No. 8792, because the law merely admits as the best
evidence the original fax transmittal. On the other hand, respondent posits that, from a reading of the
law and the Rules on Electronic Evidence, the original facsimile transmittal of the pro forma invoice
is admissible in evidence since it is an electronic document and, therefore, the best evidence under
the law and the Rules. Respondent further claims that the photocopies of these fax transmittals
(specifically ST2-POSTS0401-1 and ST2-POSTS0401-2) are admissible under the Rules on
Evidence because the respondent sufficiently explained the non-production of the original fax
transmittals.
In resolving this issue, the appellate court ruled as follows:

Admissibility of Pro Forma


Invoices; Breach of Contract
by Appellants
Turning first to the appellants' argument against the admissibility of the Pro Forma Invoices
with Reference Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2 (Exhibits "E", "E-1" and
"F", pp. 215-218, Records), appellants argue that the said documents are inadmissible (sic)
being violative of the best evidence rule.
The argument is untenable.
The copies of the said pro-forma invoices submitted by the appellee are admissible in
evidence, although they are mere electronic facsimile printouts of appellant's orders. Such
facsimile printouts are considered Electronic Documents under the New Rules on Electronic
Evidence, which came into effect on August 1, 2001. (Rule 2, Section 1 [h], A.M. No. 01-701-SC).
"(h) 'Electronic document' refers to information or the representation of information,
data, figures, symbols or other modes of written expression, described or however
represented, by which a right is established or an obligation extinguished, or by
which a fact may be proved and affirmed, which is received, recorded, transmitted,
stored, processed, retrieved or produced electronically. It includes digitally signed
documents and any printout or output, readable by sight or other means, which
accurately reflects the electronic data message or electronic document. For purposes
of these Rules, the term 'electronic document' may be used interchangeably with
'electronic data message'.
An electronic document shall be regarded as the equivalent of an original document under
the Best Evidence Rule, as long as it is a printout or output readable by sight or other
means, showing to reflect the data accurately. (Rule 4, Section 1, A.M. No. 01-7-01-SC)
The ruling of the Appellate Court is incorrect. R.A. No. 8792, 64 otherwise known as the Electronic
Commerce Act of 2000, considers an electronic data message or an electronic document as the
functional equivalent of a written document for evidentiary purposes.65 The Rules on Electronic
Evidence66 regards an electronic document as admissible in evidence if it complies with the rules on
admissibility prescribed by the Rules of Court and related laws, and is authenticated in the manner
prescribed by the said Rules.67 An electronic document is also the equivalent of an original document
under the Best Evidence Rule, if it is a printout or output readable by sight or other means, shown to
reflect the data accurately.68
Thus, to be admissible in evidence as an electronic data message or to be considered as the
functional equivalent of an original document under the Best Evidence Rule, the writing must
foremost be an "electronic data message" or an "electronic document."
The Electronic Commerce Act of 2000 defines electronic data message and electronic document as
follows:
Sec. 5. Definition of Terms. For the purposes of this Act, the following terms are defined, as
follows:
xxx

c. "Electronic Data Message" refers to information generated, sent, received or stored by


electronic, optical or similar means.
xxx
f. "Electronic Document" refers to information or the representation of information, data,
figures, symbols or other modes of written expression, described or however represented, by
which a right is established or an obligation extinguished, or by which a fact may be proved
and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or
produced electronically.
The Implementing Rules and Regulations (IRR) of R.A. No. 8792, 69 which was signed on July 13,
2000 by the then Secretaries of the Department of Trade and Industry, the Department of Budget
and Management, and then Governor of the Bangko Sentral ng Pilipinas, defines the terms as:
Sec. 6. Definition of Terms. For the purposes of this Act and these Rules, the following
terms are defined, as follows:
xxx
(e) "Electronic Data Message" refers to information generated, sent, received or stored by
electronic, optical or similar means, but not limited to, electronic data interchange (EDI),
electronic mail, telegram, telex or telecopy. Throughout these Rules, the term "electronic
data message" shall be equivalent to and be used interchangeably with "electronic
document."
xxxx
(h) "Electronic Document" refers to information or the representation of information, data,
figures, symbols or other modes of written expression, described or however represented, by
which a right is established or an obligation extinguished, or by which a fact may be proved
and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or
produced electronically. Throughout these Rules, the term "electronic document" shall be
equivalent to and be used interchangeably with "electronic data message."
The phrase "but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or
telecopy" in the IRR's definition of "electronic data message" is copied from the Model Law on
Electronic Commerce adopted by the United Nations Commission on International Trade Law
(UNCITRAL),70 from which majority of the provisions of R.A. No. 8792 were taken.71 While Congress
deleted this phrase in the Electronic Commerce Act of 2000, the drafters of the IRR reinstated it. The
deletion by Congress of the said phrase is significant and pivotal, as discussed hereunder.
The clause on the interchangeability of the terms "electronic data message" and "electronic
document" was the result of the Senate of the Philippines' adoption, in Senate Bill 1902, of the
phrase "electronic data message" and the House of Representative's employment, in House Bill
9971, of the term "electronic document."72 In order to expedite the reconciliation of the two versions,
the technical working group of the Bicameral Conference Committee adopted both terms and
intended them to be the equivalent of each one.73 Be that as it may, there is a slight difference
between the two terms. While "data message" has reference to information electronically sent,
stored or transmitted, it does not necessarily mean that it will give rise to a right or extinguish an

obligation,74unlike an electronic document. Evident from the law, however, is the legislative intent to
give the two terms the same construction.
The Rules on Electronic Evidence promulgated by this Court defines the said terms in the following
manner:
SECTION 1. Definition of Terms. For purposes of these Rules, the following terms are
defined, as follows:
xxxx
(g) "Electronic data message" refers to information generated, sent, received or stored by
electronic, optical or similar means.
(h) "Electronic document" refers to information or the representation of information, data,
figures, symbols or other modes of written expression, described or however represented, by
which a right is established or an obligation extinguished, or by which a fact may be proved
and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or
produced electronically. It includes digitally signed documents and print-out or output,
readable by sight or other means, which accurately reflects the electronic data message or
electronic document. For purposes of these Rules, the term "electronic document" may be
used interchangeably with "electronic data message."
Given these definitions, we go back to the original question: Is an original printout of a facsimile
transmission an electronic data message or electronic document?
The definitions under the Electronic Commerce Act of 2000, its IRR and the Rules on Electronic
Evidence, at first glance, convey the impression that facsimile transmissions are electronic data
messages or electronic documents because they are sent by electronic means. The expanded
definition of an "electronic data message" under the IRR, consistent with the UNCITRAL Model Law,
further supports this theory considering that the enumeration "xxx [is] not limited to, electronic data
interchange (EDI), electronic mail, telegram, telex or telecopy." And to telecopy isto send a
document from one place to another via a fax machine.75
As further guide for the Court in its task of statutory construction, Section 37 of the Electronic
Commerce Act of 2000 provides that
Unless otherwise expressly provided for, the interpretation of this Act shall give due regard to
its international origin and the need to promote uniformity in its application and the
observance of good faith in international trade relations. The generally accepted principles of
international law and convention on electronic commerce shall likewise be considered.
Obviously, the "international origin" mentioned in this section can only refer to the UNCITRAL Model
Law, and the UNCITRAL's definition of "data message":
"Data message" means information generated, sent, received or stored by electronic, optical
or similar means including, but not limited to, electronic data interchange (EDI), electronic
mail, telegram, telex or telecopy.76
is substantially the same as the IRR's characterization of an "electronic data message."

However, Congress deleted the phrase, "but not limited to, electronic data interchange (EDI),
electronic mail, telegram, telex or telecopy," and replaced the term "data message" (as found in the
UNCITRAL Model Law ) with "electronic data message." This legislative divergence from what is
assumed as the term's "international origin" has bred uncertainty and now impels the Court to make
an inquiry into the true intent of the framers of the law. Indeed, in the construction or interpretation of
a legislative measure, the primary rule is to search for and determine the intent and spirit of the
law.77 A construction should be rejected that gives to the language used in a statute a meaning that
does not accomplish the purpose for which the statute was enacted, and that tends to defeat the
ends which are sought to be attained by the enactment.78
Interestingly, when Senator Ramon B. Magsaysay, Jr., the principal author of Senate Bill 1902 (the
predecessor of R.A. No. 8792), sponsored the bill on second reading, he proposed to adopt the term
"data message" as formulated and defined in the UNCITRAL Model Law.79 During the period of
amendments, however, the term evolved into "electronic data message," and the phrase "but not
limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy" in the
UNCITRAL Model Law was deleted. Furthermore, the term "electronic data message," though
maintaining its description under the UNCITRAL Model Law, except for the aforesaid deleted
phrase, conveyed a different meaning, as revealed in the following proceedings:
xxxx
Senator Santiago. Yes, Mr. President. I will furnish a copy together with the explanation of
this proposed amendment.
And then finally, before I leave the Floor, may I please be allowed to go back to Section 5;
the Definition of Terms. In light of the acceptance by the good Senator of my proposed
amendments, it will then become necessary to add certain terms in our list of terms to be
defined. I would like to add a definition on what is "data," what is "electronic record" and what
is an "electronic record system."
If the gentleman will give me permission, I will proceed with the proposed amendment on
Definition of Terms, Section 5.
Senator Magsaysay. Please go ahead, Senator Santiago.
Senator Santiago. We are in Part 1, short title on the Declaration of Policy, Section 5,
Definition of Terms.
At the appropriate places in the listing of these terms that have to be defined since these are
arranged alphabetically, Mr. President, I would like to insert the term DATA and its definition.
So, the amendment will read: "DATA" MEANS REPRESENTATION, IN ANY FORM, OF
INFORMATION OR CONCEPTS.
The explanation is this: This definition of "data" or "data" as it is now fashionably pronounced
in America - -the definition of "data" ensures that our bill applies to any form of information in
an electronic record, whether these are figures, facts or ideas.
So again, the proposed amendment is this: "DATA" MEANS REPRESENTATIONS, IN ANY
FORM, OF INFORMATION OR CONCEPTS.

Senator Magsaysay. May I know how will this affect the definition of "Data Message" which
encompasses electronic records, electronic writings and electronic documents?
Senator Santiago. These are completely congruent with each other. These are compatible.
When we define "data," we are simply reinforcing the definition of what is a data message.
Senator Magsaysay. It is accepted, Mr. President.
Senator Santiago. Thank you. The next term is "ELECTRONIC RECORD." The proposed
amendment is as follows:
"ELECTRONIC RECORD" MEANS DATA THAT IS RECORDED OR STORED ON ANY
MEDIUM IN OR BY A COMPUTER SYSTEM OR OTHER SIMILAR DEVICE, THAT CAN BE
READ OR PERCEIVED BY A PERSON OR A COMPUTER SYSTEM OR OTHER SIMILAR
DEVICE. IT INCLUDES A DISPLAY, PRINTOUT OR OTHER OUTPUT OF THAT DATA.
The explanation for this term and its definition is as follows: The term "ELECTRONIC
RECORD" fixes the scope of our bill. The record is the data. The record may be on any
medium. It is electronic because it is recorded or stored in or by a computer system or a
similar device.
The amendment is intended to apply, for example, to data on magnetic strips on cards or in
Smart cards.As drafted, it would not apply to telexes or faxes, except computergenerated faxes, unlike the United Nations model law on electronic commerce. It
would also not apply to regular digital telephone conversations since the information is not
recorded. It would apply to voice mail since the information has been recorded in or by a
device similar to a computer. Likewise, video records are not covered. Though when the
video is transferred to a website, it would be covered because of the involvement of the
computer. Music recorded by a computer system on a compact disc would be covered.
In short, not all data recorded or stored in digital form is covered. A computer or a similar
device has to be involved in its creation or storage. The term "similar device" does not
extend to all devices that create or store data in digital form. Although things that are not
recorded or preserved by or in a computer system are omitted from this bill, these may well
be admissible under other rules of law. This provision focuses on replacing the search for
originality proving the reliability of systems instead of that of individual records and using
standards to show systems reliability.
Paper records that are produced directly by a computer system such as printouts are
themselves electronic records being just the means of intelligible display of the contents of
the record. Photocopies of the printout would be paper record subject to the usual rules
about copies, but the original printout would be subject to the rules of admissibility of this bill.
However, printouts that are used only as paper records and whose computer origin is never
again called on are treated as paper records. In that case, the reliability of the computer
system that produces the record is irrelevant to its reliability.
Senator Magsaysay. Mr. President, if my memory does not fail me, earlier, the lady Senator
accepted that we use the term "Data Message" rather than "ELECTRONIC RECORD" in
being consistent with the UNCITRAL term of "Data Message." So with the new amendment

of defining "ELECTRONIC RECORD," will this affect her accepting of the use of "Data
Message" instead of "ELECTRONIC RECORD"?
Senator Santiago. No, it will not. Thank you for reminding me. The term I would like to insert
is ELECTRONIC DATA MESSAGE in lieu of "ELECTRONIC RECORD."
Senator Magsaysay. Then we are, in effect, amending the term of the definition of "Data
Message" on page 2A, line 31, to which we have no objection.
Senator Santiago. Thank you, Mr. President.
xxxx
Senator Santiago. Mr. President, I have proposed all the amendments that I desire to,
including the amendment on the effect of error or change. I will provide the language of the
amendment together with the explanation supporting that amendment to the distinguished
sponsor and then he can feel free to take it up in any session without any further
intervention.
Senator Magsaysay. Before we end, Mr. President, I understand from the proponent of these
amendments that these are based on the Canadian E-commerce Law of 1998. Is that not
right?
Senator Santiago. That is correct.80
Thus, when the Senate consequently voted to adopt the term "electronic data message," it was
consonant with the explanation of Senator Miriam Defensor-Santiago that it would not apply "to
telexes or faxes, except computer-generated faxes, unlike the United Nations model law on
electronic commerce." In explaining the term "electronic record" patterned after the E-Commerce
Law of Canada, Senator Defensor-Santiago had in mind the term "electronic data message." This
term then, while maintaining part of the UNCITRAL Model Law's terminology of "data message," has
assumed a different context, this time, consonant with the term "electronic record" in the law of
Canada. It accounts for the addition of the word "electronic" and the deletion of the phrase "but not
limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy." Noteworthy
is that the Uniform Law Conference of Canada, explains the term "electronic record," as drafted in
the Uniform Electronic Evidence Act, in a manner strikingly similar to Sen. Santiago's explanation
during the Senate deliberations:
"Electronic record" fixes the scope of the Act. The record is the data. The record may be any
medium. It is "electronic" because it is recorded or stored in or by a computer system or
similar device. The Act is intended to apply, for example, to data on magnetic strips on cards,
or in smart cards. As drafted, it would not apply to telexes or faxes (except computergenerated faxes), unlike the United Nations Model Law on Electronic Commerce. It would
also not apply to regular digital telephone conversations, since the information is not
recorded. It would apply to voice mail, since the information has been recorded in or by a
device similar to a computer. Likewise video records are not covered, though when the video
is transferred to a Web site it would be, because of the involvement of the computer. Music
recorded by a computer system on a compact disk would be covered.
In short, not all data recorded or stored in "digital" form is covered. A computer or similar
device has to be involved in its creation or storage. The term "similar device" does not

extend to all devices that create or store data in digital form. Although things that are not
recorded or preserved by or in a computer system are omitted from this Act, they may well
be admissible under other rules of law. This Act focuses on replacing the search for
originality, proving the reliability of systems instead of that of individual records, and using
standards to show systems reliability.
Paper records that are produced directly by a computer system, such as printouts, are
themselves electronic records, being just the means of intelligible display of the contents of
the record. Photocopies of the printout would be paper records subject to the usual rules
about copies, but the "original" printout would be subject to the rules of admissibility of this
Act.
However, printouts that are used only as paper records, and whose computer origin is never
again called on, are treated as paper records. See subsection 4(2). In this case the reliability
of the computer system that produced the record is relevant to its reliability.81
There is no question then that when Congress formulated the term "electronic data message," it
intended the same meaning as the term "electronic record" in the Canada law. This construction of
the term "electronic data message," which excludes telexes or faxes, except computer-generated
faxes, is in harmony with the Electronic Commerce Law's focus on "paperless" communications and
the "functional equivalent approach"82 that it espouses. In fact, the deliberations of the Legislature
are replete with discussions on paperless and digital transactions.
Facsimile transmissions are not, in this sense, "paperless," but verily are paper-based.
A facsimile machine, which was first patented in 1843 by Alexander Bain,83 is a device that can send
or receive pictures and text over a telephone line. It works by digitizing an imagedividing it into a
grid of dots. Each dot is either on or off, depending on whether it is black or white. Electronically,
each dot is represented by a bit that has a value of either 0 (off) or 1 (on). In this way, the fax
machine translates a picture into a series of zeros and ones (called a bit map) that can be
transmitted like normal computer data. On the receiving side, a fax machine reads the incoming
data, translates the zeros and ones back into dots, and reprints the picture. 84 A fax machine is
essentially an image scanner, a modem and a computer printer combined into a highly specialized
package. The scanner converts the content of a physical document into a digital image, the modem
sends the image data over a phone line, and the printer at the other end makes a duplicate of the
original document.85 Thus, in Garvida v. Sales, Jr.,86 where we explained the unacceptability of filing
pleadings through fax machines, we ruled that:
A facsimile or fax transmission is a process involving the transmission and reproduction of
printed and graphic matter by scanning an original copy, one elemental area at a time, and
representing the shade or tone of each area by a specified amount of electric current. The
current is transmitted as a signal over regular telephone lines or via microwave relay and is
used by the receiver to reproduce an image of the elemental area in the proper position and
the correct shade. The receiver is equipped with a stylus or other device that produces a
printed record on paper referred to as a facsimile.
x x x A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy
preserving all the marks of an original. Without the original, there is no way of determining on
its face whether the facsimile pleading is genuine and authentic and was originally signed by
the party and his counsel. It may, in fact, be a sham pleading.87

Accordingly, in an ordinary facsimile transmission, there exists an original paper-based information


or data that is scanned, sent through a phone line, and re-printed at the receiving end. Be it noted
that in enacting the Electronic Commerce Act of 2000, Congress intended virtual or
paperless writings to be the functional equivalent and to have the same legal function as paperbased documents.88 Further, in a virtual or paperless environment, technically, there is no original
copy to speak of, as all direct printouts of the virtual reality are the same, in all respects, and are
considered as originals.89 Ineluctably, the law's definition of "electronic data message," which, as
aforesaid, is interchangeable with "electronic document," could not have included facsimile
transmissions, which have an original paper-based copy as sent and a paper-based
facsimile copy as received. These two copies are distinct from each other, and have different legal
effects. While Congress anticipated future developments in communications and computer
technology90 when it drafted the law, it excluded the early forms of technology, like telegraph, telex
and telecopy (except computer-generated faxes, which is a newer development as compared to the
ordinary fax machine to fax machine transmission), when it defined the term "electronic data
message."
Clearly then, the IRR went beyond the parameters of the law when it adopted verbatim the
UNCITRAL Model Law's definition of "data message," without considering the intention of Congress
when the latter deleted the phrase "but not limited to, electronic data interchange (EDI), electronic
mail, telegram, telex or telecopy." The inclusion of this phrase in the IRR offends a basic tenet in the
exercise of the rule-making power of administrative agencies. After all, the power of administrative
officials to promulgate rules in the implementation of a statute is necessarily limited to what is found
in the legislative enactment itself. The implementing rules and regulations of a law cannot extend the
law or expand its coverage, as the power to amend or repeal a statute is vested in the
Legislature.91 Thus, if a discrepancy occurs between the basic law and an implementing rule or
regulation, it is the former that prevails, because the law cannot be broadened by a mere
administrative issuancean administrative agency certainly cannot amend an act of
Congress.92 Had the Legislature really wanted ordinary fax transmissions to be covered by the
mantle of the Electronic Commerce Act of 2000, it could have easily lifted without a bit of tatter the
entire wordings of the UNCITRAL Model Law.
Incidentally, the National Statistical Coordination Board Task Force on the Measurement of ECommerce,93 on November 22, 2006, recommended a working definition of "electronic commerce,"
as "[a]ny commercial transaction conducted through electronic, optical and similar medium, mode,
instrumentality and technology. The transaction includes the sale or purchase of goods and services,
between individuals, households, businesses and governments conducted over computer-mediated
networks through the Internet, mobile phones, electronic data interchange (EDI) and other channels
through open and closed networks." The Task Force's proposed definition is similar to the
Organization of Economic Cooperation and Development's (OECD's) broad definition as it covers
transactions made over any network, and, in addition, it adopted the following provisions of the
OECD definition: (1) for transactions, it covers sale or purchase of goods and services; (2) for
channel/network, it considers any computer-mediated network and NOT limited to Internet alone;
(3) it excludes transactions received/placed using fax, telephone or non-interactive mail; (4) it
considers payments done online or offline; and (5) it considers delivery made online (like
downloading of purchased books, music or software programs) or offline (deliveries of goods). 94
We, therefore, conclude that the terms "electronic data message" and "electronic document," as
defined under the Electronic Commerce Act of 2000, do not include a facsimile transmission.
Accordingly, a facsimile transmission cannot be considered as electronic evidence. It is not the
functional equivalent of an original under the Best Evidence Rule and is not admissible as electronic
evidence.

Since a facsimile transmission is not an "electronic data message" or an "electronic document," and
cannot be considered as electronic evidence by the Court, with greater reason is a photocopy of
such a fax transmission not electronic evidence. In the present case, therefore, Pro Forma Invoice
Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2 (Exhibits "E" and "F"), which are mere
photocopies of the original fax transmittals, are not electronic evidence, contrary to the position of
both the trial and the appellate courts.
- III Nevertheless, despite the pro forma invoices not being electronic evidence, this Court finds that
respondent has proven by preponderance of evidence the existence of a perfected contract of sale.
In an action for damages due to a breach of a contract, it is essential that the claimant proves (1) the
existence of a perfected contract, (2) the breach thereof by the other contracting party and (3) the
damages which he/she sustained due to such breach. Actori incumbit onus probandi. The burden of
proof rests on the party who advances a proposition affirmatively.95 In other words, a plaintiff in a civil
action must establish his case by a preponderance of evidence, that is, evidence that has greater
weight, or is more convincing than that which is offered in opposition to it. 96
In general, contracts are perfected by mere consent, 97 which is manifested by the meeting of the
offer and the acceptance upon the thing and the cause which are to constitute the contract. The offer
must be certain and the acceptance absolute.98 They are, moreover, obligatory in whatever form they
may have been entered into, provided all the essential requisites for their validity are present. 99 Sale,
being a consensual contract, follows the general rule that it is perfected at the moment there is a
meeting of the minds upon the thing which is the object of the contract and upon the price. From that
moment, the parties may reciprocally demand performance, subject to the provisions of the law
governing the form of contracts.100
The essential elements of a contract of sale are (1) consent or meeting of the minds, that is, to
transfer ownership in exchange for the price, (2) object certain which is the subject matter of the
contract, and (3) cause of the obligation which is established. 101
In this case, to establish the existence of a perfected contract of sale between the parties,
respondent Ssangyong formally offered in evidence the testimonies of its witnesses and the
following exhibits:

Exhibit

Description

Purpose

Pro forma Invoice dated 17 April To show that defendants contracted with
2000 with Contract No.ST2plaintiff for the delivery of 110 MT of
POSTS0401-1, photocopy
stainless steel from Korea payable by
way of an irrevocable letter of credit in
favor of plaintiff, among other
conditions.

E-1

Pro forma Invoice dated 17 April To show that defendants sent their
2000 with Contract No.ST2confirmation of the (i) delivery to it of the

POSTS0401, contained in
facsimile/thermal paper faxed
by defendants to plaintiff
showing the printed
transmission details on the
upper portion of said paper as
coming from defendant MCC on
26 Apr 00 08:41AM

specified stainless steel products, (ii)


defendants' payment thereof by way of
an irrevocable letter of credit in favor of
plaintiff, among other conditions.

E-2

Conforme signature of Mr.


Gregory Chan, contained in
facsimile/thermal paper faxed
by defendants to plaintiff
showing the printed
transmission details on the
upper portion of said paper as
coming from defendant MCC on
26 Apr 00 08:41AM

To show that defendants sent their


confirmation of the (i) delivery to it of the
total of 220MT specified stainless steel
products, (ii) defendants' payment
thereof by way of an irrevocable letter of
credit in favor of plaintiff, among other
conditions.

Pro forma Invoice dated 17 April To show that defendants contracted with
2000 with Contract No.ST2plaintiff for delivery of another 110 MT of
POSTSO401-2, photocopy
stainless steel from Korea payable by
way of an irrevocable letter of credit in
favor of plaintiff, among other
conditions.

Letter to defendant SANYO


SEIKE dated 20 June
2000,contained in
facsimile/thermal paper

G-1

Signature of defendant Gregory


Chan, contained in
facsimile/thermal paper.

Letter to defendants dated 22


June 2000, original

To prove that defendants were informed


of the successful price adjustments
secured by plaintiff in favor of former
and were advised of the schedules of its
L/C opening.

Letter to defendants dated 26

To prove that plaintiff repeatedly

To prove that defendants were informed


of the date of L/C opening and
defendant's conforme/approval thereof.

June 2000, original

Letter to defendants dated 26


June 2000, original

Letter to defendants dated 27


June 2000, original

Facsimile message to
defendants dated 28 June
2000, photocopy

Letter from defendants dated 29


June 2000, contained in
facsimile/thermal paper faxed
by defendants to plaintiff
showing the printed
transmission details on the
upper portion of said paper as
coming from defendant MCC on
29 June 00 11:12 AM

M-1

Signature of defendant Gregory


Chan, contained in
facsimile/thermal paper faxed
by defendants to plaintiff
showing the printed
transmission details on the
upper portion of said paper as
coming from defendant MCC on
June 00 11:12 AM

Letter to defendants dated 29


June 2000, original

Letter to defendants dated 30


June 2000, photocopy

requested defendants for the agreed


opening of the Letters of Credit,
defendants' failure and refusal to comply
with their obligations and the problems
of plaintiff is incurring by reason of
defendants' failure and refusal to open
the L/Cs.

To prove that defendants admit of their


liabilities to plaintiff, that they requested
for "more extension" of time for the
opening of the Letter of Credit, and
begging for favorable understanding
and consideration.

To prove that plaintiff reiterated its


request for defendants to L/C opening
after the latter's request for extension of
time was granted, defendants' failure
and refusal to comply therewith

extension of time notwithstanding.

Letter to defendants dated 06


July 2000, original

Demand letter to defendants


dated 15 Aug 2000, original

To prove that plaintiff was constrained to


engaged services of a lawyer for
collection efforts.

Demand letter to defendants


dated 23 Aug 2000, original

To prove that defendants opened the


first L/C in favor of plaintiff, requested
for further postponement of the final L/C
and for minimal amounts, were urged to
open the final L/C on time, and were
informed that failure to comply will
cancel the contract.

Demand letter to defendants


dated 11 Sept 2000, original

To show defendants' refusal and failure


to open the final L/C on time, the
cancellation of the contract as a
consequence thereof, and final demand
upon defendants to remit its obligations.

Letter from plaintiff


SSANGYONG to defendant
SANYO SEIKI dated 13 April
2000, with fax back from
defendants SANYO SEIKI/MCC
to plaintiff
SSANGYONG,contained in
facsimile/thermal paper with
back-up photocopy

To prove that there was a perfected sale


and purchase agreement between the
parties for 220 metric tons of steel
products at the price of US$1,860/ton.

W-1

Conforme signature of
defendant Gregory Chan,
contained in facsimile/thermal
paper with back-up photocopy

To prove that defendants, acting through


Gregory Chan, agreed to the sale and
purchase of 220 metric tons of steel
products at the price of US$1,860/ton.

W-2

Name of sender MCC Industrial To prove that defendants sent their


Sales Corporation
conformity to the sale and purchase

agreement by facsimile transmission.

Pro forma Invoice dated 16


August 2000, photocopy

To prove that defendant MCC agreed to


adjust and split the confirmed purchase
order into 2 shipments at 100 metric
tons each at the discounted price of
US$1,700/ton.

X-1

Notation "1/2", photocopy

To prove that the present Pro forma


Invoice was the first of 2 pro forma
invoices.

X-2

Ref. No. ST2-POSTS0801,photocopy

To prove that the present Pro


formaInvoice was the first of 2 pro
formainvoices.

X-3

Conforme signature of
defendant Gregory
Chan,photocopy

To prove that defendant MCC, acting


through Gregory Chan, agreed to the
sale and purchase of the balance of 100
metric tons at the discounted price of
US$1,700/ton, apart from the other
order and shipment of 100 metric tons
which was delivered by plaintiff
SSANGYONG and paid for by
defendant MCC.

DD

Letter from defendant MCC to


plaintiff SSANGYONG dated 22
August 2000, contained in
facsimile/thermal paper with
back-up photocopy

To prove that there was a perfected sale


and purchase agreement between
plaintiff SSANGYONG and defendant
MCC for the balance of 100 metric tons,
apart from the other order and shipment
of 100 metric tons which was delivered
by plaintiff SSANGYONG and paid for
by defendant MCC.

DD-1

Ref. No. ST2-POSTS080To prove that there was a perfected sale


1,contained in facsimile/thermal and purchase agreement between
paper with back-up photocopy plaintiff SSANGYONG and defendant
MCC for the balance of 100 metric tons,
apart from the other order and shipment
of 100 metric tons which was delivered
by plaintiff SSANGYONG and paid for

by defendant MCC.

DD-2

Signature of defendant Gregory


Chan, contained in
facsimile/thermal paper with
back-up photocopy

To prove that defendant MCC, acting


through Gregory Chan, agreed to the
sale and purchase of the balance of 100
metric tons, apart from the other order
and shipment of 100 metric tons which
was delivered by plaintiff Ssangyong
and paid for by defendant MCC.102

Significantly, among these documentary evidence presented by respondent, MCC, in its petition
before this Court, assails the admissibility only of Pro Forma Invoice Nos. ST2-POSTS04011 and ST2-POSTS0401-2 (Exhibits "E" and "F"). After sifting through the records, the Court found
that these invoices are mere photocopies of their original fax transmittals. Ssangyong avers that
these documents were prepared after MCC asked for the splitting of the original order into two, so
that the latter can apply for an L/C with greater facility. It, however, failed to explain why the originals
of these documents were not presented.
To determine whether these documents are admissible in evidence, we apply the ordinary Rules on
Evidence, for as discussed above we cannot apply the Electronic Commerce Act of 2000 and the
Rules on Electronic Evidence.
Because these documents are mere photocopies, they are simply secondary evidence, admissible
only upon compliance with Rule 130, Section 5, which states, "[w]hen the original document has
been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or
existence and the cause of its unavailability without bad faith on his part, may prove its contents by a
copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in
the order stated." Furthermore, the offeror of secondary evidence must prove the predicates thereof,
namely: (a) the loss or destruction of the original without bad faith on the part of the
proponent/offeror which can be shown by circumstantial evidence of routine practices of destruction
of documents; (b) the proponent must prove by a fair preponderance of evidence as to raise a
reasonable inference of the loss or destruction of the original copy; and (c) it must be shown that a
diligent andbona fide but unsuccessful search has been made for the document in the proper place
or places. It has been held that where the missing document is the foundation of the action, more
strictness in proof is required than where the document is only collaterally involved. 103
Given these norms, we find that respondent failed to prove the existence of the original fax
transmissions of Exhibits E and F, and likewise did not sufficiently prove the loss or destruction of the
originals. Thus, Exhibits E and F cannot be admitted in evidence and accorded probative weight.
It is observed, however, that respondent Ssangyong did not rely merely on Exhibits E and F to prove
the perfected contract. It also introduced in evidence a variety of other documents, as enumerated
above, together with the testimonies of its witnesses. Notable among them are Pro Forma Invoice
Nos. ST2-POSTS080-1 andST2-POSTS080-2 which were issued by Ssangyong and sent via fax to
MCC. As already mentioned, these invoices slightly varied the terms of the earlier invoices such that
the quantity was now officially 100MT per invoice and the price reduced to US$1,700.00 per MT. The
copies of the said August 16, 2000 invoices submitted to the court bear the conformity signature of
MCC Manager Chan.

Pro Forma Invoice No. ST2-POSTS080-1 (Exhibit "X"), however, is a mere photocopy of its original.
But then again, petitioner MCC does not assail the admissibility of this document in the instant
petition. Verily, evidence not objected to is deemed admitted and may be validly considered by the
court in arriving at its judgment.104 Issues not raised on appeal are deemed abandoned.
As to Pro Forma Invoice No. ST2-POSTS080-2 (Exhibits "1-A" and "2-C"), which was certified by
PCIBank as a true copy of its original,105 it was, in fact, petitioner MCC which introduced this
document in evidence. Petitioner MCC paid for the order stated in this invoice. Its admissibility,
therefore, is not open to question.
These invoices (ST2-POSTS0401, ST2-POSTS080-1 and ST2-POSTS080-2), along with the other
unchallenged documentary evidence of respondent Ssangyong, preponderate in favor of the claim
that a contract of sale was perfected by the parties.
This Court also finds merit in the following observations of the trial court:
Defendants presented Letter of Credit (Exhibits "1", "1-A" to "1-R") referring to Pro Forma
Invoice for Contract No. ST2POSTS080-2, in the amount of US$170,000.00, and which
bears the signature of Gregory Chan, General Manager of MCC. Plaintiff, on the other hand,
presented Pro Forma Invoice referring to Contract No. ST2-POSTS080-1, in the amount of
US$170,000.00, which likewise bears the signature of Gregory Chan, MCC. Plaintiff
accounted for the notation "1/2" on the right upper portion of the Invoice, that is, that it was
the first of two (2) pro forma invoices covering the subject contract between plaintiff and the
defendants. Defendants, on the other hand, failed to account for the notation "2/2" in its Pro
Forma Invoice (Exhibit "1-A"). Observably further, both Pro Forma Invoices bear the same
date and details, which logically mean that they both apply to one and the same
transaction.106
Indeed, why would petitioner open an L/C for the second half of the transaction if there was no first
half to speak of?
The logical chain of events, as gleaned from the evidence of both parties, started with the petitioner
and the respondent agreeing on the sale and purchase of 220MT of stainless steel at US$1,860.00
per MT. This initial contract was perfected. Later, as petitioner asked for several extensions to pay,
adjustments in the delivery dates, and discounts in the price as originally agreed, the parties slightly
varied the terms of their contract, without necessarily novating it, to the effect that the original order
was reduced to 200MT, split into two deliveries, and the price discounted to US$1,700 per MT.
Petitioner, however, paid only half of its obligation and failed to open an L/C for the other 100MT.
Notably, the conduct of both parties sufficiently established the existence of a contract of sale, even
if the writings of the parties, because of their contested admissibility, were not as explicit in
establishing a contract.107 Appropriate conduct by the parties may be sufficient to establish an
agreement, and while there may be instances where the exchange of correspondence does not
disclose the exact point at which the deal was closed, the actions of the parties may indicate that a
binding obligation has been undertaken.108
With our finding that there is a valid contract, it is crystal-clear that when petitioner did not open the
L/C for the first half of the transaction (100MT), despite numerous demands from respondent
Ssangyong, petitioner breached its contractual obligation. It is a well-entrenched rule that the failure
of a buyer to furnish an agreed letter of credit is a breach of the contract between buyer and seller.
Indeed, where the buyer fails to open a letter of credit as stipulated, the seller or exporter is entitled
to claim damages for such breach. Damages for failure to open a commercial credit may, in

appropriate cases, include the loss of profit which the seller would reasonably have made had the
transaction been carried out.109
- IV This Court, however, finds that the award of actual damages is not in accord with the evidence on
record. It is axiomatic that actual or compensatory damages cannot be presumed, but must be
proven with a reasonable degree of certainty.110 In Villafuerte v. Court of Appeals,111 we explained
that:
Actual or compensatory damages are those awarded in order to compensate a party for an
injury or loss he suffered. They arise out of a sense of natural justice and are aimed at
repairing the wrong done. Except as provided by law or by stipulation, a party is entitled to
an adequate compensation only for such pecuniary loss as he has duly proven. It is
hornbook doctrine that to be able to recover actual damages, the claimant bears the onus of
presenting before the court actual proof of the damages alleged to have been suffered, thus:
A party is entitled to an adequate compensation for such pecuniary loss actually
suffered by him as he has duly proved. Such damages, to be recoverable, must not
only be capable of proof, but must actually be proved with a reasonable degree of
certainty. We have emphasized that these damages cannot be presumed and courts,
in making an award must point out specific facts which could afford a basis for
measuring whatever compensatory or actual damages are borne. 112
In the instant case, the trial court awarded to respondent Ssangyong US$93,493.87 as actual
damages. On appeal, the same was affirmed by the appellate court. Noticeably, however, the trial
and the appellate courts, in making the said award, relied on the following documents submitted in
evidence by the respondent: (1) Exhibit "U," the Statement of Account dated March 30, 2001; (2)
Exhibit "U-1," the details of the said Statement of Account); (3) Exhibit "V," the contract of the alleged
resale of the goods to a Korean corporation; and (4) Exhibit "V-1," the authentication of the resale
contract from the Korean Embassy and certification from the Philippine Consular Office.
The statement of account and the details of the losses sustained by respondent due to the said
breach are, at best, self-serving. It was respondent Ssangyong itself which prepared the said
documents. The items therein are not even substantiated by official receipts. In the absence of
corroborative evidence, the said statement of account is not sufficient basis to award actual
damages. The court cannot simply rely on speculation, conjecture or guesswork as to the fact and
amount of damages, but must depend on competent proof that the claimant had suffered, and on
evidence of, the actual amount thereof.113
Furthermore, the sales contract and its authentication certificates, Exhibits "V" and "V-1," allegedly
evidencing the resale at a loss of the stainless steel subject of the parties' breached contract, fail to
convince this Court of the veracity of its contents. The steel items indicated in the sales
contract114 with a Korean corporation are different in all respects from the items ordered by petitioner
MCC, even in size and quantity. We observed the following discrepancies:
List of commodities as stated in Exhibit "V":

COMMODITY: Stainless Steel HR Sheet in Coil, Slit Edge

SPEC: SUS304 NO. 1

SIZE/Q'TY:

2.8MM X 1,219MM X C

8.193MT

3.0MM X 1,219MM X C

7.736MT

3.0MM X 1,219MM X C

7.885MT

3.0MM X 1,219MM X C

8.629MT

4.0MM X 1,219MM X C

7.307MT

4.0MM X 1,219MM X C

7.247MT

4.5MM X 1,219MM X C

8.450MT

4.5MM X 1,219MM X C

8.870MT

5.0MM X 1,219MM X C

8.391MT

6.0MM X 1,219MM X C

6.589MT

6.0MM X 1,219MM X C

7.878MT

6.0MM X 1,219MM X C

8.397MT

TOTAL:

95.562MT115

List of commodities as stated in Exhibit "X" (the invoice that was not paid):

DESCRIPTION: Hot Rolled Stainless Steel Coil SUS 304

SIZE AND QUANTITY:

2.6 MM X 4' X C

10.0MT

3.0 MM X 4' X C

25.0MT

4.0 MM X 4' X C

15.0MT

4.5 MM X 4' X C

15.0MT

5.0 MM X 4' X C

10.0MT

6.0 MM X 4' X C

25.0MT

TOTAL:

100MT116

From the foregoing, we find merit in the contention of MCC that Ssangyong did not adequately prove
that the items resold at a loss were the same items ordered by the petitioner. Therefore, as the claim
for actual damages was not proven, the Court cannot sanction the award.
Nonetheless, the Court finds that petitioner knowingly breached its contractual obligation and
obstinately refused to pay despite repeated demands from respondent. Petitioner even asked for
several extensions of time for it to make good its obligation. But in spite of respondent's continuous
accommodation, petitioner completely reneged on its contractual duty. For such inattention and
insensitivity, MCC must be held liable for nominal damages. "Nominal damages are 'recoverable
where a legal right is technically violated and must be vindicated against an invasion that has
produced no actual present loss of any kind or where there has been a breach of contract and no
substantial injury or actual damages whatsoever have been or can be shown.'" 117 Accordingly, the
Court awards nominal damages of P200,000.00 to respondent Ssangyong.
As to the award of attorney's fees, it is well settled that no premium should be placed on the right to
litigate and not every winning party is entitled to an automatic grant of attorney's fees. The party
must show that he falls under one of the instances enumerated in Article 2208 of the Civil Code. 118 In

the instant case, however, the Court finds the award of attorney's fees proper, considering that
petitioner MCC's unjustified refusal to pay has compelled respondent Ssangyong to litigate and to
incur expenses to protect its rights.
WHEREFORE, PREMISES CONSIDERED, the appeal is PARTIALLY GRANTED. The Decision of
the Court of Appeals in CA-G.R. CV No. 82983 is MODIFIED in that the award of actual damages
is DELETED. However, petitioner is ORDERED to pay respondent NOMINAL DAMAGES in the
amount of P200,000.00, and theATTORNEY'S FEES as awarded by the trial court.
SO ORDERED.