EVIDENCE

CONFLICT OF LAWS

EVIDENCE
BATCH 1

1- Ong Chia v. Republic, G.R. No. 127240, 27 March 2000

SECOND DIVISION
[G.R. No. 127240. March 27, 2000.]
ONG CHIA, petitioner, vs. REPUBLIC OF THE PHILIPPINES and THE
COURT OF APPEALS, respondents.
Algarra Mutia & Trinidad Law Offices for petitioner.
The Solicitor General for respondents.
DECISION
MENDOZA, J p:
This is a petition for review of the decision 1 of the Court of Appeals reversing the
decision of the Regional Trial Court, Branch 24, Koronadal, South Cotabato 2admitting
petitioner Ong Chia to Philippine citizenship. prLL
The facts are as follows:
Petitioner was born on January 1, 1923 in Amoy, China. In 1932, as a nine-year old boy,
he arrived at the port of Manila on board the vessel "Angking." Since then, he has
stayed in the Philippines where he found employment and eventually started his own
business, married a Filipina, with whom he had four children. On July 4, 1989, at the age
of 66, he filed a verified petition to be admitted as a Filipino citizen under C.A. No. 473,
otherwise known as theRevised Naturalization Law, as amended. Petitioner, after stating
his qualifications as required in 2, and lack of the disqualifications enumerated in 3 of
the law, stated
17. That he has heretofore made (a) petition for citizenship under
the provisions of Letter of Instruction No. 270 with the Special
Committee on Naturalization, Office of the Solicitor General,
Manila, docketed as SCN Case No. 031776, but the same was not
acted upon owing to the fact that the said Special Committee on
Naturalization was not reconstituted after the February, 1986
revolution such that processing of petitions for naturalization by
administrative process was suspended;
During the hearings, petitioner testified as to his qualifications and presented three
witnesses to corroborate his testimony. So impressed was Prosecutor Isaac Alvero V.
Moran with the testimony of petitioner that, upon being asked by the court whether the
State intended to present any witness against him, he remarked: prcd

Actually, Your Honor, with the testimony of the petitioner himself

which is rather surprising, in the sense that he seems to be wellversed with the major portion of the history of the Philippines, so, on
our part, we are convinced, Your Honor Please, that petitioner
really deserves to be admitted as a citizen of the Philippines. And
for this reason, we do not wish to present any evidence to
counteract or refute the testimony of the witnesses for the
petitioner, as well as the petitioner himself. 3
Accordingly, on August 25, 1999, the trial court granted the petition and admitted
petitioner to Philippine citizenship. The State, however, through the Office of the Solicitor
General, appealed contending that petitioner: (1) failed to state all the names by
which he is or had been known; (2) failed to state all his former places of residence in
violation of C.A. No. 473, 7; (3) failed to conduct himself in a proper and
irreproachable manner during his entire stay in the Philippines, in violation of 2; (4)
has no known lucrative trade or occupation and his previous incomes have been
insufficient or misdeclared, also in contravention of 2; and (5) failed to support his
petition with the appropriate documentary evidence. 4
Annexed to the State's appellant's brief was a copy of a 1977 petition for naturalization
filed by petitioner with the Special Committee on Naturalization in SCN Case No.
031767, 5 in which petitioner stated that in addition to his name of "Ong Chia," he had
likewise been known since childhood as "Loreto Chia Ong." As petitioner, however,
failed to state this other name in his 1989 petition for naturalization, it was contended
that his petition must fail. 6 The State also annexed income tax returns 7 allegedly filed
by petitioner from 1973 to 1977 to show that his net income could hardly support himself
and his family. To prove that petitioner failed to conduct himself in a proper and
irreproachable manner during his stay in the Philippines, the State contended that,
although petitioner claimed that he and Ramona Villaruel had been married twice,
once before a judge in 1953, and then again in church in 1977, petitioner actually lived
with his wife without the benefit of marriage from 1953 until they were married in 1977. It
was alleged that petitioner failed to present his 1953 marriage contract, if there be any.
The State also annexed a copy of petitioner's 1977 marriage contract 8 and a JointAffidavit 9 executed by petitioner and his wife. These documents show that when
petitioner married Ramona Villaruel on February 23, 1977, no marriage license had been
required in accordance with Art. 76 of the Civil Code because petitioner and Ramona
Villaruel had been living together as husband and wife since 1953 without the benefit of
marriage. This, according to the State, belies his claim that when he started living with
his wife in 1953, they had already been married.
The State also argued that, as shown by petitioner's Immigrant Certificate of
Residence, 10 petitioner resided at "J.M. Basa Street, Iloilo," but he did not include said
address in his petition.
On November 15, 1996, the Court of Appeals rendered its decision which, as already
noted, reversed the trial court and denied petitioner's application for naturalization. It
ruled that due to the importance of naturalization cases, the State is not precluded from

raising questions not presented in the lower court and brought up for the first time on
appeal. 11 The appellate court held: cdrep
As correctly observed by the Office of the Solicitor General,
petitioner Ong Chia failed to state in this present petition for
naturalization his other name, "LORETO CHIA ONG," which name
appeared in his previous application under Letter of Instruction No.
270. Names and pseudonyms must be stated in the petition for
naturalization and failure to include the same militates against a
decision in his favor . . . This is a mandatory requirement to allow
those persons who know (petitioner) by those other names to
come forward and inform the authorities of any legal objection
which might adversely affect his application for citizenship.
Furthermore, Ong Chia failed to disclose in his petition for
naturalization that he formerly resided in "J.M. Basa St., Iloilo" and
"Alimodian, Iloilo." Section 7 of the Revised Naturalization
Law requires the applicant to state in his petition "his present and
former places of residence." This requirement is mandatory and
failure of the petitioner to comply with it is fatal to the petition. As
explained by the Court, the reason for the provision is to give the
public, as well as the investigating agencies of the government,
upon the publication of the petition, an opportunity to be informed
thereof and voice their objections against the petitioner. By failing
to comply with this provision, the petitioner is depriving the public
and said agencies of such opportunity, thus defeating the purpose
of the law. . .
Ong Chia had not also conducted himself in a proper and
irreproachable manner when he lived-in with his wife for several
years, and sired four children out of wedlock. It has been the
consistent ruling that the "applicant's 8-year cohabitation with his
wife without the benefit of clergy and begetting by her three
children out of wedlock is a conduct far from being proper and
irreproachable as required by the Revised Naturalization Law," and
therefore disqualifies him from becoming a citizen of the Philippines
by naturalization. . .
Lastly, petitioner Ong Chia's alleged annual income in 1961 of
P5,000.00, exclusive of bonuses, commissions and allowances, is not
lucrative income. His failure to file an income tax return "because
he is not liable for income tax yet" confirms that his income is low. .
." It is not only that the person having the employment gets enough
for his ordinary necessities in life. It must be shown that the
employment gives one an income such that there is an
appreciable margin of his income over expenses as to be able to
provide for an adequate support in the event of unemployment,
sickness, or disability to work and thus avoid one's becoming the
object of charity or public charge." . . . Now that they are in their
old age, petitioner Ong Chia and his wife are living on the

allowance given to them by their children. The monthly pension

given by the elder children of the applicant cannot be added to
his income to make it lucrative because like bonuses, commissions
and allowances, said pensions are contingent, speculative and
precarious. . .
Hence, this petition based on the following assignment of errors:
I. THE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION IN
RULING THAT IN NATURALIZATION CASES, THE APPELLATE
COURT CAN DENY AN APPLICATION FOR PHILIPPINE
CITIZENSHIP ON THE BASIS OF DOCUMENTS NOT PRESENTED
BEFORE THE TRIAL COURT AND NOT FORMING PART OF THE
RECORDS OF THE CASE.
II. THE FINDING OF THE COURT OF APPEALS THAT THE PETITIONER HAS
BEEN KNOWN BY SOME OTHER NAME NOT STATED IN HIS
PETITION IS NOT SUPPORTED BY THE EVIDENCE ON
RECORD. LibLex
III. CONTRARY TO THE FINDING OF THE COURT OF APPEALS, THE
PETITIONER STATED IN HIS PETITION AND ITS ANNEXES HIS
PRESENT AND FORMER PLACES OF RESIDENCE.
IV. THE FINDING OF THE COURT OF APPEALS THAT THE PETITIONER
FAILED TO CONDUCT HIMSELF IN A PROPER AND
IRREPROACHABLE MANNER IS NOT SUPPORTED BY THE
EVIDENCE ON RECORD.
Petitioner's principal contention is that the appellate court erred in considering the
documents which had merely been annexed by the State to its appellant's brief and, on
the basis of which, justified the reversal of the trial court's decision. Not having been
presented and formally offered as evidence, they are mere "scrap(s) of paper devoid of
any evidentiary value," 12 so it was argued, because under Rule 132, 34 of the Revised
Rules on Evidence, the court shall considerno evidence which has not been formally
offered.
The contention has no merit. Petitioner failed to note Rule 143 13 of the Rules of Court
which provides that
These rules shall not apply to land registration, cadastral and
election cases, naturalization and insolvency proceedings, and
other cases not herein provided for, except by analogy or in a
suppletory character and whenever practicable and convenient.
(italics added)
Prescinding from the above, the rule on formal offer of evidence (Rule 132, 34) now
being invoked by petitioner is clearly not applicable to the present case involving a
petition for naturalization. The only instance when said rules may be applied by analogy

or suppletorily in such cases is when it is "practicable and convenient." That is not the
case here, since reliance upon the documents presented by the State for the first time
on appeal, in fact, appears to be the more practical and convenient course of action
considering that decisions in naturalization proceedings are not covered by the rule
on res judicata. 14Consequently, a final favorable judgment does not preclude the
State from later on moving for a revocation of the grant of naturalization on the basis of
the same documents.
Petitioner claims that as a result of the failure of the State to present and formally offer its
documentary evidence before the trial court, he was denied the right to object against
their authenticity, effectively depriving him of his fundamental right to procedural due
process. 15 We are not persuaded. Indeed, the reason for the rule prohibiting the
admission of evidence which has not been formally offered is to afford the opposite
party the chance to object to their admissibility. 16 Petitioner cannot claim that he was
deprived of the right to object to the authenticity of the documents submitted to the
appellate court by the State. He could have included his objections, as he, in fact, did,
in the brief he filed with the Court of Appeals, thus:

published, 19 with the petition and the other annexes, such publication constitutes
substantial compliance with 7. 20 This is allegedly because the publication effectively
satisfied the objective sought to be achieved by such requirement, i.e., to give
investigating agencies of the government the opportunity to check on the background
of the applicant and prevent suppression of information regarding any possible
misbehavior on his part in any community where he may have lived at one time or
another. 21 It is settled, however, that naturalization laws should be rigidly enforced and
strictly construed in favor of the government and against the applicant. 22 As noted by
the State, C.A. No. 473, 7 clearly provides that the applicant for naturalization shall set
forth in the petition his present and former places of residence. 23 This provision and the
rule of strict application of the law in naturalization cases defeat petitioner's argument
of "substantial compliance" with the requirement under the Revised Naturalization Law.
On this ground alone, the instant petition ought to be denied.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED and the instant petition is
hereby DENIED. LLpr
SO ORDERED.

The authenticity of the alleged petition for naturalization (SCN

Case-No. 031767) which was supposedly filed by Ong Chia
under LOI 270 has not been established. In fact, the
case number of the alleged petition for naturalization . . .
is 031767 while the case number of the petition actually filed by the
appellee is 031776. Thus, said document is totally unreliable and
should not be considered by the Honorable Court in resolving the
instant appeal. 17
Indeed, the objection is flimsy as the alleged discrepancy is trivial, and, at most, can be
accounted for as a typographical error on the part of petitioner himself. That "SCN
Case No. 031767," a copy of which was annexed to the petition, is the correct
case number is confirmed by the Evaluation Sheet 18 of the Special Committee On
Naturalization which was also docketed as "SCN Case No. 031767." Other than this,
petitioner offered no evidence to disprove the authenticity of the documents presented
by the State. prLL
Furthermore, the Court notes that these documents namely, the petition in SCN
Case No. 031767, petitioner's marriage contract, the joint affidavit executed by him and
his wife, and petitioner's income tax returns are all public documents. As such, they
have been executed under oath. They are thus reliable. Since petitioner failed to make
a satisfactory showing of any flaw or irregularity that may cast doubt on the authenticity
of these documents, it is our conclusion that the appellate court did not err in relying
upon them.
One last point. The above discussion would have been enough to dispose of this case,
but to settle all the issues raised, we shall briefly discuss the effect of petitioner's failure to
include the address "J.M. Basa St., Iloilo" in his petition, in accordance with 7, C.A. No.
473. This address appears on petitioner's Immigrant Certificate of Residence, a
document which forms part of the records as Annex A of his 1989 petition for
naturalization. Petitioner admits that he failed to mention said address in petition, but
argues that since the Immigrant Certificate of Residence containing it had been fully

Bellosillo, Quisumbing, Buena and De Leon, Jr., JJ., concur.

||| (Ong Chia v. Republic, G.R. No. 127240, [March 27, 2000], 385 PHIL 487-499)

2-Bantolino, et al v. Coca-cola Bottlers, G.R. No. 153660, 10 June 2003

SECOND DIVISION
[G.R. No. 153660. June 10, 2003.]
PRUDENCIO BANTOLINO, NESTOR ROMERO, NILO ESPINA, EDDIE
LADICA, ARMAN QUELING, ROLANDO NIETO, RICARDO BARTOLOME,
ELUVER GARCIA, EDUARDO GARCIA and NELSON
MANALASTAS, petitioners, vs. COCA-COLA BOTTLERS PHILS.,
INC., respondent.
UST Legal Aid Clinic for petitioners.
Abello Concepcion Regala & Cruz for respondent.DEA
DECISION
BELLOSILLO, J p:
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the
Decision of the Court of Appeals 1 dated 21 December 2001 which affirmed with
modification the decision of the National Labor Relations Commission promulgated 30
March 2001. 2

On 15 February 1995 sixty-two (62) employees of respondent Coca-Cola Bottlers, Inc.,

and its officers, Lipercon Services, Inc., People's Specialist Services, Inc., and Interim
Services, Inc., filed a complaint against respondents for unfair labor practice through
illegal dismissal, violation of their security of tenure and the perpetuation of the "Cabo
System." They thus prayed for reinstatement with full back wages, and the declaration of
their regular employment status. aSATHE
For failure to prosecute as they failed to either attend the scheduled mandatory
conferences or submit their respective affidavits, the claims of fifty-two (52)
complainant-employees were dismissed. Thereafter, Labor Arbiter Jose De Vera
conducted clarificatory hearings to elicit information from the ten (10) remaining
complainants (petitioners herein) relative to their alleged employment with respondent
firm.
In substance, the complainants averred that in the performance of their duties as route
helpers, bottle segregators, and others, they were employees of respondent Coca-Cola
Bottlers, Inc. They further maintained that when respondent company replaced them
and prevented them from entering the company premises, they were deemed to have
been illegally dismissed.
In lieu of a position paper, respondent company filed a motion to dismiss complaint for
lack of jurisdiction and cause of action, there being no employer-employee relationship
between complainants and Coca-Cola Bottlers, Inc., and that respondents Lipercon
Services, People's Specialist Services and Interim Services being bona fide independent
contractors, were the real employers of the complainants. 3 As regards the corporate
officers, respondent insisted that they could not be faulted and be held liable for
damages as they only acted in their official capacities while performing their respective
duties.
On 29 May 1998 Labor Arbiter Jose De Vera rendered a decision ordering respondent
company to reinstate complainants to their former positions with all the rights, privileges
and benefits due regular employees, and to pay their full back wages which, with the
exception of Prudencio Bantolino whose back wages must be computed upon proof of
his dismissal as of 31 May 1998, already amounted to an aggregate of P1,810,244.00. 4
In finding for the complainants, the Labor Arbiter ruled that in contrast with the negative
declarations of respondent company's witnesses who, as district sales supervisors of
respondent company denied knowing the complainants personally, the testimonies of
the complainants were more credible as they sufficiently supplied every detail of their
employment, specifically identifying who their salesmen/drivers were, their places of
assignment, aside from their dates of engagement and dismissal.
On appeal, the NLRC sustained the finding of the Labor Arbiter that there was indeed
an employer-employee relationship between the complainants and respondent
company when it affirmed in toto the latter's decision.
In a resolution dated 17 July 2001 the NLRC subsequently denied for lack of merit
respondent's motion for consideration.

Respondent Coca-Cola Bottlers appealed to the Court of Appeals which, although

affirming the finding of the NLRC that an employer-employee relationship existed
between the contending parties, nonetheless agreed with respondent that the
affidavits of some of the complainants, namely, Prudencio Bantolino, Nestor Romero,
Nilo Espina, Ricardo Bartolome, Eluver Garcia, Eduardo Garcia and Nelson Manalastas,
should not have been given probative value for their failure to affirm the contents
thereof and to undergo cross-examination. As a consequence, the appellate court
dismissed their complaints for lack of sufficient evidence. In the same Decision however,
complainants Eddie Ladica, Arman Queling and Rolando Nieto were declared regular
employees since they were the only ones subjected to cross-examination. 5 Thus

. . . (T)he labor arbiter conducted clarificatory hearings to ferret out

the truth between the opposing claims of the parties thereto. He
did not submit the case based on position papers and their
accompanying documentary evidence as a full-blown trial was
imperative to establish the parties' claims. As their allegations were
poles apart, it was necessary to give them ample opportunity to
rebut each other's statements through cross-examination. In fact,
private respondents Ladica, Quelling and Nieto were subjected to
rigid cross-examination by petitioner's counsel. However, the
testimonies of private respondents Romero, Espina, and Bantolino
were not subjected to cross-examination, as should have been the
case, and no explanation was offered by them or by the labor
arbiter as to why this was dispensed with. Since they were
represented by counsel, the latter should have taken steps so as
not to squander their testimonies. But nothing was done by their
counsel to that effect. 6
Petitioners now pray for relief from the adverse Decision of the Court of Appeals; that,
instead, the favorable judgment of the NLRC be reinstated.
In essence, petitioners argue that the Court of Appeals should not have given weight to
respondent's claim of failure to cross-examine them. They insist that, unlike regular
courts, labor cases are decided based merely on the parties' position papers and
affidavits in support of their allegations and subsequent pleadings that may be filed
thereto. As such, according to petitioners, the Rules of Court should not be strictly
applied in this case specifically by putting them on the witness stand to be crossexamined because the NLRC has its own rules of procedure which were applied by the
Labor Arbiter in coming up with a decision in their favor.
In its disavowal of liability, respondent commented that since the other alleged affiants
were not presented in court to affirm their statements, much less to be cross-examined,
their affidavits should, as the Court of Appeals rightly held, be stricken off the records for
being self-serving, hearsay and inadmissible in evidence. With respect to Nestor Romero,
respondent points out that he should not have been impleaded in the instant petition
since he already voluntarily executed a Compromise Agreement, Waiver and
Quitclaim in consideration of P450,000.00. Finally, respondent argues that the instant
petition should be dismissed in view of the failure of petitioners 7 to sign the petition as

well as the verification and certification of non-forum shopping, in clear violation of the
principle laid down in Loquias v. Office of the Ombudsman. 8
The crux of the controversy revolves around the propriety of giving evidentiary value to
the affidavits despite the failure of the affiants to affirm their contents and undergo the
test of cross-examination.
The petition is impressed with merit. The issue confronting the Court is not without
precedent in jurisprudence. The oft-cited case of Rabago v. NLRC 9squarely grapples a
similar challenge involving the propriety of the use of affidavits without the presentation
of affiants for cross-examination. In that case, we held that "the argument that the
affidavit is hearsay because the affiants were not presented for cross-examination is not
persuasive because the rules of evidence are not strictly observed in proceedings
before administrative bodies like the NLRC where decisions may be reached on the
basis of position papers only."
In Rase v. NLRC, 10 this Court likewise sidelined a similar challenge when it ruled that it
was not necessary for the affiants to appear and testify and be cross-examined by
counsel for the adverse party. To require otherwise would be to negate the rationale
and purpose of the summary nature of the proceedings mandated by the Rules and to
make mandatory the application of the technical rules of evidence.
Southern Cotabato Dev. and Construction Co. v. NLRC 11 succinctly states that
under Art. 221 of the Labor Code, the rules of evidence prevailing in courts of law do
not control proceedings before the Labor Arbiter and the NLRC. Further, it notes that the
Labor Arbiter and the NLRC are authorized to adopt reasonable means to ascertain the
facts in each case speedily and objectively and without regard to technicalities of law
and procedure, all in the interest of due process. We find no compelling reason to
deviate therefrom.
To reiterate, administrative bodies like the NLRC are not bound by the technical niceties
of law and procedure and the rules obtaining in courts of law. Indeed, the Revised Rules
of Court and prevailing jurisprudence may be given only stringent application, i.e., by
analogy or in a suppletory character and effect. The submission by respondent,
citing People v. Sorrel, 12 that an affidavit not testified to in a trial, is mere hearsay
evidence and has no real evidentiary value, cannot find relevance in the present case
considering that a criminal prosecution requires a quantum of evidence different from
that of an administrative proceeding. Under the Rules of the Commission, the Labor
Arbiter is given the discretion to determine the necessity of a formal trial or hearing.
Hence, trial-type hearings are not even required as the cases may be decided based
on verified position papers, with supporting documents and their affidavits.
As to whether petitioner Nestor Romero should be properly impleaded in the instant
case, we only need to follow the doctrinal guidance set by Periquet v. NLRC 13 which
outlines the parameters for valid compromise agreements, waivers and quitclaims
Not all waivers and quitclaims are invalid as against public policy. If
the agreement was voluntarily entered into and represents a
reasonable settlement, it is binding on the parties and may not

later be disowned simply because of a change of mind. It is only

where there is clear proof that the waiver was wangled from an
unsuspecting or gullible person, or the terms of settlement are
unconscionable on its face, that the law will step in to annul the
questionable transaction. But where it is shown that the person
making the waiver did so voluntarily, with full understanding of
what he was doing, and the consideration for the quitclaim is
credible and reasonable, the transaction must be recognized as a
valid and binding undertaking.
In closely examining the subject agreements, we find that on their face theCompromise
Agreement 14 and Release, Waiver and Quitclaim 15 are devoid of any palpable
inequity as the terms of settlement therein are fair and just. Neither can we glean from
the records any attempt by the parties to renege on their contractual agreements, or to
disavow or disown their due execution. Consequently, the same must be recognized as
valid and binding transactions and, accordingly, the instant case should be dismissed
and finally terminated insofar as concerns petitioner Nestor Romero.
We cannot likewise accommodate respondent's contention that the failure of all the
petitioners to sign the petition as well as the Verification and Certification of Non-Forum
Shopping in contravention of Sec. 5, Rule 7, of the Rules of Court will cause the dismissal
of the present appeal. While the Loquias case requires the strict observance of the
Rules, it however provides an escape hatch for the transgressor to avoid the harsh
consequences of non-observance. Thus
. . . . We find that substantial compliance will not suffice in a matter
involving strict observance of the rules. The attestation contained in
the certification on non-forum shopping requires personal
knowledge by the party who executed the same. Petitioners must
show reasonable cause for failure to personally sign the
certification. Utter disregard of the rules cannot justly be
rationalized by harking on the policy of liberal construction (Italics
supplied).
In their Ex Parte Motion to Litigate as Pauper Litigants, petitioners made a request for a
fifteen (15)-day extension, i.e., from 24 April 2002 to 8 May 2002, within which to file their
petition for review in view of the absence of a counsel to represent them. 16 The records
also reveal that it was only on 10 July 2002 that Atty. Arnold Cacho, through the UST
Legal Aid Clinic, made his formal entry of appearance as counsel for herein petitioners.
Clearly, at the time the instant petition was filed on 7 May 2002 petitioners were not yet
represented by counsel. Surely, petitioners who are non-lawyers could not be faulted for
the procedural lapse since they could not be expected to be conversant with the
nuances of the law, much less knowledgeable with the esoteric technicalities of
procedure. For this reason alone, the procedural infirmity in the filing of the present
petition may be overlooked and should not be taken against petitioners.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals is REVERSED
and SET ASIDE and the decision of the NLRC dated 30 March 2001 which affirmed in
toto the decision of the Labor Arbiter dated 29 May 1998 ordering respondent CocaCola Bottlers Phils., Inc., to reinstate Prudencio Bantolino, Nilo Espina, Eddie Ladica,

Arman Queling, Rolando Nieto, Ricardo Bartolome, Eluver Garcia, Eduardo Garcia and
Nelson Manalastas to their former positions as regular employees, and to pay them their
full back wages, with the exception of Prudencio Bantolino whose back wages are yet
to be computed upon proof of his dismissal, is REINSTATED, with the MODIFICATION that
herein petition is DENIED insofar as it concerns Nestor Romero who entered into a valid
and binding Compromise Agreement and Release, Waiver and Quitclaim with
respondent company. ECTIcS
SO ORDERED.
Quisumbing, Austria-Martinez and Callejo, Sr., JJ., concur.
||| (Bantolino v. Coca-Cola Bottlers Phils., G.R. No. 153660, [June 10, 2003], 451 PHIL
839-848)

3-Cirtek Employees v. Cirtek Electronics, 6 June 2011 (RESOLUTION)

THIRD DIVISION
[G.R. No. 190515. June 6, 2011.]
CIRTEK EMPLOYEES LABOR UNION-FEDERATION OF FREE
WORKERS, petitioner, vs. CIRTEK ELECTRONICS, INC., respondent.
RESOLUTION
CARPIO MORALES, J.: p
This resolves the motion for reconsideration and supplemental motion for
reconsideration filed by respondent, Cirtek Electronics, Inc., of the Court's Decision
dated November 15, 2010.
Respondent-movant avers that petitioner, in filing the petition
forcertiorari under Rule 65, availed of the wrong remedy, hence, the Court should
have dismissed the petition outright. It goes on to aver that the Court erred in
resolving a factual issue whether the August 24, 2005 Memorandum of
Agreement (MOA) was validly entered into , which is not the office of a petition
for certiorari.
Respondent-movant further avers that the MOA 1 signed by the
remaining officers of petitioner Union and allegedly ratified by its members should
have been given credence by the Court.
Furthermore, respondent-movant maintains that the Secretary of Labor
cannot insist on a ruling beyond the compromise agreement entered into by the
parties; and that, as early as February 5, 2010, petitioner Union had already filed
with the Department of Labor and Employment (DOLE) a resolution of disaffiliation

from the Federation of Free Workers resulting in the latter's lack of personality to
represent the workers in the present case.
The motion is bereft of merit. aIEDAC
Respondent indeed availed of the wrong remedy of certiorari under Rule
65. Due, however, to the nature of the case, one involving workers' wages and
benefits, and the fact that whether the petition was filed under Rule 65 or appeal
by certiorari under Rule 45 it was filed within 15 days (the reglementary period
under Rule 45) from petitioner's receipt of the resolution of the Court of Appeals'
Resolution denying its motion for reconsideration, the Court resolved to give it due
course. As Almelor v. RTC of Las Pias, et al. 2 restates:
Generally, an appeal taken either to the Supreme Court or the CA
by the wrong or inappropriate mode shall be dismissed. This is to
prevent the party from benefiting from one's neglect and
mistakes.However,
like
most
rules,
it
carries
certain
exceptions. After all, theultimate purpose of all rules of procedures
is to achieve substantial justice as expeditiously as
possible. (emphasis and underscoring supplied)
Respecting the attribution of error to the Court in ruling on a question of
fact, it bears recalling that a QUESTION OF FACT arises when the doubt or
difference arises as to the truth or falsehood of alleged fact, 3 while a QUESTION OF
LAW exists when the doubt or difference arises as to what the law is on a certain set
of facts.
The present case presents the primordial issue of whether the Secretary of
Labor is empowered to give arbitral awards in the exercise of his authority to
assume jurisdiction over labor disputes.
Ineluctably, the issue involves a determination and application of existing
law, the provisions of the Labor Code,and prevailing jurisprudence. Intertwined with
the issue, however, is the question of validity of the MOA and its ratification which,
as movant correctly points out, is a question of fact and one which is not
appropriate for a petition for review on certiorari under Rule 45. The rule, however,
is not without exceptions, viz.: SaCIDT
This rule provides that the parties may raise only questions of law,
because the Supreme Court is not a trier of facts. Generally, we
are not duty-bound to analyze again and weigh the evidence
introduced in and considered by the tribunals below. When
supported by substantial evidence, the findings of fact of the CA
are conclusive and binding on the parties and are not reviewable
by this Court, unless the case falls under any of the
following recognized exceptions:
(1) When the conclusion is a finding grounded entirely on
speculation, surmises and conjectures;

(2) When the inference made is manifestly mistaken,

absurd or impossible;
(3) Where there is a grave abuse of discretion;
(4) When the judgment is based on a misapprehension of
facts;
(5) When the findings of fact are conflicting;
(6) When the Court of Appeals, in making its findings,
went beyond the issues of the case and the same is
contrary to the admissions of both appellant and
appellee;
(7) When the findings are contrary to those of the trial
court;
(8) When the findings of fact are conclusions without
citation of specific evidence on which they are based;
(9) When the facts set forth in the petition as well as in the
petitioners' main and reply briefs are not disputed by the
respondents; and
(10) When the findings of fact of the Court of Appeals are
premised on the supposed absence of evidence and
contradicted by the evidence on record. (emphasis and
underscoring supplied)
In the present case, the findings of the Secretary of Labor and the
appellate court on whether the MOA is valid and binding are conflicting, the
former giving scant consideration thereon, and the latter affording it more weight.

As discussed in the Decision under reconsideration, the then Acting

Secretary of Labor Manuel G. Imson acted well within his jurisdiction in ruling that
the wage increases to be given are P10 per day effective January 1, 2004 and P15
per day effective January 1, 2005, pursuant to his power to assume jurisdiction
under Art. 263 (g) 4 of the Labor Code.
While an arbitral award cannot per se be categorized as an agreement
voluntarily entered into by the parties because it requires the interference and
imposing power of the State thru the Secretary of Labor when he assumes
jurisdiction, the award can be considered as an approximation of a collective
bargaining agreement which would otherwise have been entered into by the
parties. Hence, it has the force and effect of a valid contract obligation between
the parties. 5
In determining arbitral awards then, aside from the MOA, courts
considered other factors and documents including, as in this case, the financial
documents 6 submitted by respondent as well as its previous bargaining history and
financial outlook and improvements as stated in its own website. 7
The appellate court's ruling that giving credence to the "Pahayag" and
the minutes of the meeting which were not verified and notarized would violate the
rule on parol evidence is erroneous. The parol evidence rule, like other rules on
evidence, should not be strictly applied in labor cases. Interphil Laboratories
Employees Union-FFW v. Interphil Laboratories, Inc.8 teaches:
[R]eliance on the parol evidence rule is misplaced. In labor
casespending before the Commission or the Labor Arbiter, the
rules of evidence prevailing in courts of law or equity are not
controlling. Rules of procedure and evidence are not applied in a
very rigid and technical sense in labor cases. Hence, the Labor
Arbiter is not precluded from accepting and evaluating evidence
other than, and even contrary to, what is stated in the CBA.
(emphasis and underscoring supplied)

As found by the Secretary of Labor, the MOA came about as a result of

the constitution, at respondent's behest, of the Labor-Management Council (LMC)
which, he reminded the parties, should not be used as an avenue for bargaining
but for the purpose of affording workers to participate in policy and decisionmaking. Hence, the agreements embodied in the MOA were not the proper
subject of the LMC deliberation or procedure but of CBA negotiations and,
therefore, deserving little weight. TEHIaD

On the contention that the MOA should have been given credence
because it was validly entered into by the parties, the Court notes that even those
who signed it expressed reservations thereto. A CBA (assuming in this case that the
MOA can be treated as one) is a contract imbued with public interest. It must thus
be given a liberal, practical and realistic, rather than a narrow and technical
construction, with due consideration to the context in which it is negotiated and
the purpose for which it is intended. 9

The appellate court, held, however, that the Secretary did not have the
authority to give an arbitral award higher than what was stated in the MOA. The
conflicting views drew the Court to re-evaluate the facts as borne by the records,
an exception to the rule that only questions of law may be dealt with in an appeal
by certiorari under Rule 45.

As for the contention that the alleged disaffiliation of the Union from the
FFW during the pendency of the case resulted in the FFW losing its personality to
represent the Union, the same does not affect the Court's upholding of the
authority of the Secretary of Labor to impose arbitral awards higher than what was
supposedly agreed upon in the MOA. Contrary to respondent's assertion, the
"unavoidable issue of disaffiliation" bears nosignificant legal repercussions to
warrant the reversal of the Court's Decision.

En passant, whether there was a valid disaffiliation is a factual issue.

Besides, the alleged disaffiliation of the Union from the FFW was by virtue of a
Resolution signed on February 23, 2010 and submitted to the DOLE Laguna Field
Office on March 5, 2010 two months after the present petition was filed on
December 22, 2009, hence, it did not affect FFW and its Legal Center's standing
to file the petition nor this Court's jurisdiction to resolve the same.

(i) opposition to application for union and CBA

registration;

At all events, the issue of disaffiliation is an intra-union dispute which must

be resolved in a different forum in an action at the instance of either or both the
FFW and the Union or a rival labor organization, not the employer.

(k) disagreements over chartering or registration of labor

organizations and collective bargaining
agreements;

An intra-union dispute refers to any conflict between and among

union members, including grievances arising from any violation of
the rights and conditions of membership, violation of or
disagreement over any provision of the union's constitution and bylaws, or disputes arising from chartering or disaffiliation of the
union. Sections 1 and 2, Rule XI of Department Order No. 40-03,
Series of 2003 of the DOLE enumerate the following circumstances
as inter/intra-union disputes, viz.: IHTaCE
RULE XI
INTER/INTRA-UNION DISPUTES AND OTHER RELATED LABOR
RELATIONS DISPUTES
SECTION 1. Coverage. Inter/intra-union disputes shall include:
(a) cancellation of registration of a labor organization
filed by its members or by another labor
organization;
(b) conduct of election of union and workers' association
officers/nullification of election of union and
workers' association officers;
(c) audit/accounts examination of union or workers'
association funds;
(d) deregistration of collective bargaining agreements;
(e) validity/invalidity of union affiliation or disaffiliation;
(f) validity/invalidity of acceptance/non-acceptance for
union membership;
(g) validity/invalidity of impeachment/expulsion of union
and workers' association officers and members;
(h) validity/invalidity of voluntary recognition;

(j) violations of or disagreements over any provision in a

union or workers' association constitution and
by-laws;

(l) violations of the rights and conditions of union or

workers' association membership;
(m) violations of the rights of legitimate labor
organizations, except interpretation of collective
bargaining agreements;
(n) such other disputes or conflicts involving the rights to
self-organization, union membership and
collective bargaining
(1) between and among legitimate labor
organizations;
(2) between and among members of a union or
workers' association.
SECTION 2. Coverage. Other related labor relations disputes
shall include any conflict between a labor union and the employer
or any individual, entity or group that is not a labor organization or
workers' association. This includes: (1) cancellation of registration of
unions and workers' associations; and (2) a petition for
interpleader. 10 (emphasis supplied)
Indeed, as respondent-movant itself argues, a local union may disaffiliate
at any time from its mother federation, absent any showing that the same is
prohibited under its constitution or rule. Such, however, does not result in it losing its
legal personality altogether. Verily, Anglo-KMU v. Samahan ng mga
Manggagawang Nagkakaisa sa Manila Bay Spinning Mills at J.P.
Coats 11 enlightens: HCTAEc
A local labor union is a separate and distinct unit primarily
designed to secure and maintain an equality of bargaining power
between the employer and their employee-members. A local
union does not owe its existence to the federation with which it is
affiliated. It is a separate and distinct voluntary association owing
its creation to the will of its members. The mere act of
affiliation does not divest the local union of its own

personality, neither does it give the mother federation the license

to act independently of the local union. It only gives rise to a
contract of agency where the former acts in representation of the
latter. (emphasis and underscoring supplied)
Whether then, as respondent claims, FFW "went against the will and wishes of its
principal" (the member-employees) by pursuing the case despite the signing of the
MOA, is not for the Court, nor for respondent to determine, but for the Union and
FFW to resolve on their own pursuant to their principal-agent relationship.
WHEREFORE, the motion for reconsideration of this Court's Decision of November 15, 2010
is DENIED.
SO ORDERED.
Leonardo-de Castro, Bersamin, Villarama, Jr. and Sereno, JJ., concur.
||| (Cirtek Employees Labor Union-FFW v. Cirtek Electronics, Inc., G.R. No.
190515 (Resolution), [June 6, 2011], 665 PHIL 784-795)

4-Atienza v. Board of Medicine, 9 February 2011

SECOND DIVISION
[G.R. No. 177407. February 9, 2011.]
RICO ROMMEL ATIENZA, petitioner, vs. BOARD OF MEDICINE and
EDITHA SIOSON, respondents.
DECISION
NACHURA, J p:
Before us is a petition for review on certiorari under Rule 45 of the Rules of
Court, assailing the Decision 1 dated September 22, 2006 of the Court of Appeals
(CA) in-CA-G.R. SP No. 87755. The CA dismissed the petition forcertiorari filed by
petitioner Rico Rommel Atienza (Atienza), which, in turn, assailed the
Orders 2 issued by public respondent Board of Medicine (BOM) in Administrative
Case No. 1882.
The facts, fairly summarized by the appellate court, follow.
Due to her lumbar pains, private respondent Editha Sioson went to
Rizal Medical Center (RMC) for check-up on February 4, 1995.
Sometime in 1999, due to the same problem, she was referred to
Dr. Pedro Lantin III of RMC who, accordingly, ordered several
diagnostic laboratory tests. The tests revealed that her right kidney
is normal. It was ascertained, however, that her left kidney is non-

functioning and non-visualizing. Thus, she underwent kidney

operation in September, 1999.
On February 18, 2000, private respondent's husband, Romeo Sioson
(as complainant), filed a complaint for gross negligence and/or
incompetence before the [BOM] against the doctors who
allegedly participated in the fateful kidney operation, namely: Dr.
Judd dela Vega, Dr. Pedro Lantin, III, Dr. Gerardo Antonio Florendo
and petitioner Rico Rommel Atienza.
It was alleged in the complaint that the gross negligence and/or
incompetence committed by the said doctors, including
petitioner, consists of the removal of private respondent's fully
functional right kidney, instead of the left non-functioning and nonvisualizing kidney.
The complaint was heard by the [BOM]. After complainant Romeo
Sioson presented his evidence, private respondent Editha Sioson,
also named as complainant there, filed her formal offer of
documentary evidence. Attached to the formal offer of
documentary evidence are her Exhibits "A" to "D," which she
offered for the purpose of proving that her kidneys were both in
their proper anatomical locations at the time she was operated.
She described her exhibits, as follows: ADaEIH
"EXHIBIT 'A' the certified photocopy of the X-ray
Request form dated December 12, 1996, which is also
marked as Annex '2' as it was actually originally the Annex
to . . . Dr. Pedro Lantin, III's counter affidavit filed with the
City Prosecutor of Pasig City in connection with the
criminal complaint filed by [Romeo Sioson] with the said
office, on which are handwritten entries which are the
interpretation of the results of the ultrasound examination.
Incidentally, this exhibit happens to be the same as or
identical to the certified photocopy of the document
marked as Annex '2' to the Counter-Affidavit dated
March 15, 2000, filed by . . . Dr. Pedro Lantin, III, on May 4,
2000, with this Honorable Board in answer to this
complaint;
"EXHIBIT 'B' the certified photo copy of the X-ray request
form dated January 30, 1997, which is also marked as
Annex '3' as it was actually likewise originally an Annex to .
. . Dr. Pedro Lantin, III's counter-affidavit filed with the
Office of the City Prosecutor of Pasig City in connection
with the criminal complaint filed by the herein
complainant with the said office, on which are
handwritten entries which are the interpretation of the
results of the examination. Incidentally, this exhibit
happens to be also the same as or identical to the

10

certified photo copy of the document marked as Annex

'3' which is likewise dated January 30, 1997, which is
appended as such Annex '3' to the counter-affidavit
dated March 15, 2000, filed by . . . Dr. Pedro Lantin, III on
May 4, 2000, with this Honorable Board in answer to this
complaint.
"EXHIBIT 'C' the certified photocopy of the X-ray request
form dated March 16, 1996, which is also marked as
Annex '4,' on which are handwritten entries which are the
interpretation of the results of the examination.
"EXHIBIT 'D' the certified photocopy of the X-ray request
form dated May 20, 1999, which is also marked as Annex
'16,' on which are handwritten entries which are the
interpretation of the results of the examination.
Incidentally, this exhibit appears to be the draft of the
typewritten final report of the same examination which is
the document appended as Annexes '4' and '1'
respectively to the counter-affidavits filed by . . . Dr. Judd
dela Vega and Dr. Pedro Lantin, III in answer to the
complaint. In the case of Dr. dela Vega however, the
document which is marked as Annex '4' is not a certified
photocopy, while in the case of Dr. Lantin, the document
marked as Annex '1' is a certified photocopy. Both
documents are of the same date and typewritten
contents are the same as that which are written on Exhibit
'D.'
Petitioner filed his comments/objections to private respondent's
[Editha Sioson's] formal offer of exhibits. He alleged that said
exhibits are inadmissible because the same are mere photocopies,
not properly identified and authenticated, and intended to
establish matters which are hearsay. He added that the exhibits
are incompetent to prove the purpose for which they are offered.
Dispositions of the Board of Medicine
The formal offer of documentary exhibits of private respondent
[Editha Sioson] was admitted by the [BOM] per its Order dated
May 26, 2004. It reads:
"The Formal Offer of Documentary Evidence of [Romeo
Sioson], the Comments/Objections of [herein petitioner]
Atienza, [therein respondents] De la Vega and Lantin,
and the Manifestation of [therein] respondent Florendo
are hereby ADMITTED by the [BOM] for whatever purpose
they may serve in the resolution of this case.

"Let the hearing be set on July 19, 2004 all at 1:30 p.m. for
the reception of the evidence of the respondents.
"SO ORDERED."
Petitioner moved for reconsideration of the abovementioned
Order basically on the same reasons stated in his
comment/objections to the formal offer of exhibits.
The [BOM] denied the motion for reconsideration of petitioner in its
Order dated October 8, 2004. It concluded that it should first admit
the evidence being offered so that it can determine its probative
value when it decides the case. According to the Board, it can
determine whether the evidence is relevant or not if it will take a
look at it through the process of admission. . . . . 3
Disagreeing with the BOM, and as previously adverted to, Atienza filed a
petition for certiorari with the CA, assailing the BOM's Orders which admitted Editha
Sioson's (Editha's) Formal Offer of Documentary Evidence. The CA dismissed the
petition for certiorari for lack of merit. HaECDI
Hence, this recourse positing the following issues:
I. PROCEDURAL ISSUE:
WHETHER PETITIONER ATIENZA AVAILED OF THE PROPER REMEDY
WHEN HE FILED THE PETITION FOR CERTIORARI DATED 06
DECEMBER 2004 WITH THE COURT OF APPEALS UNDER RULE
65 OF THE RULES OF COURT TO ASSAIL THE ORDERS DATED
26 MAY 2004 AND 08 OCTOBER 2004 OF RESPONDENT
BOARD.
II. SUBSTANTIVE ISSUE:
WHETHER THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE
ERROR AND DECIDED A QUESTION OF SUBSTANCE IN A
WAY NOT IN ACCORDANCE WITH LAW AND THE
APPLICABLE DECISIONS OF THE HONORABLE COURT WHEN
IT UPHELD THE ADMISSION OF INCOMPETENT AND
INADMISSIBLE EVIDENCE BY RESPONDENT BOARD, WHICH
CAN RESULT IN THE DEPRIVATION OF PROFESSIONAL
LICENSE A PROPERTY RIGHT OR ONE'S LIVELIHOOD. 4
We find no reason to depart from the ruling of the CA.
Petitioner is correct when he asserts that a petition for certiorari is the
proper remedy to assail the Orders of the BOM, admitting in evidence the exhibits
of Editha. As the assailed Orders were interlocutory, these cannot be the subject of
an appeal separate from the judgment that completely or finally disposes of the

11

case. 5 At that stage, where there is no appeal, or any plain, speedy, and
adequate remedy in the ordinary course of law, the only and remaining remedy
left to petitioner is a petition for certiorari under Rule 65 of the Rules of Court on the
ground of grave abuse of discretion amounting to lack or excess of jurisdiction.
However, the writ of certiorari will not issue absent a showing that the BOM
has acted without or in excess of jurisdiction or with grave abuse of discretion.
Embedded in the CA's finding that the BOM did not exceed its jurisdiction or act in
grave abuse of discretion is the issue of whether the exhibits of Editha contained in
her Formal Offer of Documentary Evidence are inadmissible.
Petitioner argues that the exhibits formally offered in evidence by Editha:
(1) violate the best evidence rule; (2) have not been properly identified and
authenticated; (3) are completely hearsay; and (4) are incompetent to prove their
purpose. Thus, petitioner contends that the exhibits are inadmissible evidence.

Section 20. Administrative investigation shall be conducted in

accordance with these Rules. The Rules of Court shall only apply in
these proceedings by analogy or on a suppletory character and
whenever practicable and convenient. Technical errors in the
admission of evidence which do not prejudice the substantive
rights of either party shall not vitiate the proceedings. 10
As pointed out by the appellate court, the admission of the exhibits did
not prejudice the substantive rights of petitioner because, at any rate, the fact
sought to be proved thereby, that the two kidneys of Editha were in their proper
anatomical locations at the time she was operated on, is presumed under Section
3, Rule 131 of the Rules of Court:
Sec. 3. Disputable presumptions. The following presumptions are
satisfactory if uncontradicted, but may be contradicted and
overcome by other evidence:

We disagree.
xxx xxx xxx
To begin with, it is well-settled that the rules of evidence are not strictly
applied in proceedings before administrative bodies such as the BOM. 6Although
trial courts are enjoined to observe strict enforcement of the rules of evidence, 7 in
connection with evidence which may appear to be of doubtful relevancy,
incompetency, or admissibility, we have held that:
[I]t is the safest policy to be liberal, not rejecting them on doubtful
or technical grounds, but admitting them unless plainly irrelevant,
immaterial or incompetent, for the reason that their rejection
places them beyond the consideration of the court, if they are
thereafter found relevant or competent; on the other hand, their
admission, if they turn out later to be irrelevant or incompetent,
can easily be remedied by completely discarding them or ignoring
them. 8
From the foregoing, we emphasize the distinction between the
admissibility of evidence and the probative weight to be accorded the same
pieces of evidence. PNOC Shipping and Transport Corporation v. Court of
Appeals 9 teaches:
Admissibility of evidence refers to the question of whether or not
the circumstance (or evidence) is to be considered at all. On the
other hand, the probative value of evidence refers to the question
of whether or not it proves an issue. CIaHDc
Second, petitioner's insistence that the admission of Editha's exhibits
violated his substantive rights leading to the loss of his medical license is misplaced.
Petitioner mistakenly relies on Section 20, Article I of the Professional Regulation
Commission Rules of Procedure, which reads:

(y) That things have happened according to the ordinary course of

nature and the ordinary habits of life.
The exhibits are certified photocopies of X-ray Request Forms dated
December 12, 1996, January 30, 1997, March 16, 1996, and May 20, 1999, filed in
connection with Editha's medical case. The documents contain handwritten entries
interpreting the results of the examination. These exhibits were actually attached as
annexes to Dr. Pedro Lantin III's counter affidavit filed with the Office of the City
Prosecutor of Pasig City, which was investigating the criminal complaint for
negligence filed by Editha against the doctors of Rizal Medical Center (RMC) who
handled her surgical procedure. To lay the predicate for her case, Editha offered
the exhibits in evidence to prove that her "kidneys were both in their proper
anatomical locations at the time" of her operation.
The fact sought to be established by the admission of Editha's exhibits,
that her "kidneys were both in their proper anatomical locations at the time" of her
operation, need not be proved as it is covered by mandatory judicial notice. 11
Unquestionably, the rules of evidence are merely the means for
ascertaining the truth respecting a matter of fact. 12 Thus, they likewise provide for
some facts which are established and need not be proved, such as those covered
by judicial notice, both mandatory and discretionary. 13Laws of nature involving
the physical sciences, specifically biology, 14 include the structural make-up and
composition of living things such as human beings. In this case, we may take
judicial notice that Editha's kidneys before, and at the time of, her operation, as
with most human beings, were in their proper anatomical locations.
Third, contrary to the assertion of petitioner, the best evidence rule is
inapplicable. Section 3 of Rule 130 provides:

12

1. Best Evidence Rule

Sec. 3. Original document must be produced; exceptions. When
the subject of inquiry is the contents of a document, no evidence
shall be admissible other than the original document itself, except
in the following cases:

||| (Atienza v. Board of Medicine, G.R. No. 177407, [February 9, 2011],

657 PHIL 536-546)

5- Gomez v. Gomez, G.R. No. 156284, 6 February 2007

THIRD DIVISION

(a) When the original has been lost or destroyed, or cannot be

produced in court, without bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the
party against whom the evidence is offered, and the latter fails to
produce it after reasonable notice;
(c) When the original consists of numerous accounts or other
documents which cannot be examined in court without great loss
of time and the fact sought to be established from them is only the
general result of the whole; and CAIaDT
(d) When the original is a public record in the custody of a public
officer or is recorded in a public office.
The subject of inquiry in this case is whether respondent doctors before
the BOM are liable for gross negligence in removing the right functioning kidney of
Editha instead of the left non-functioning kidney, not the proper anatomical
locations of Editha's kidneys. As previously discussed, the proper anatomical
locations of Editha's kidneys at the time of her operation at the RMC may be
established not only through the exhibits offered in evidence.
Finally, these exhibits do not constitute hearsay evidence of the
anatomical locations of Editha's kidneys. To further drive home the point, the
anatomical positions, whether left or right, of Editha's kidneys, and the removal of
one or both, may still be established through a belated ultrasound or x-ray of her
abdominal area.
In fact, the introduction of secondary evidence, such as copies of the
exhibits, is allowed. 15 Witness Dr. Nancy Aquino testified that the Records Office of
RMC no longer had the originals of the exhibits "because [it] transferred from the
previous building, . . . to the new building." 16 Ultimately, since the originals cannot
be produced, the BOM properly admitted Editha's formal offer of evidence and,
thereafter, the BOM shall determine the probative value thereof when it decides
the case.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in
CA-G.R. SP No. 87755 is AFFIRMED. Costs against petitioner.
SO ORDERED.
Peralta, Del Castillo, * Villarama, Jr. ** and Mendoza, JJ., concur.

[G.R. No. 156284. February 6, 2007.]

AUGUSTO GOMEZ, as Special Administrator of the Intestate Estate of
Consuelo Gomez, petitioner, vs. MARIA RITA GOMEZ-SAMSON,
MARCIAL SAMSON, JESUS B. GOMEZ, and the REGISTER OF DEEDS OF
PASIG and MARIKINA, RIZAL,respondents.
AUGUSTO GOMEZ, as Special Administrator of the Intestate Estate of
Consuelo Gomez, petitioner, vs. ARISTON A. GOMEZ, SR. (who died
during the pendency of the cases below and substituted by his
surviving wife, LUZ BAYSON GOMEZ, and children namely: ARISTON
B. GOMEZ, JR., MA. RITA GOMEZ-SAMSON, JESUS B. GOMEZ, MA.
TERESA G. BLOOM, MARIANO B. GOMEZ, and CARLOS B. GOMEZ)
and ARISTON B. GOMEZ, JR.,respondents.
DECISION
CHICO-NAZARIO, J p:
Which came first, the chicken or the egg?
This age-old question has spurned millions of debates in scientific and religious circles,
and has stimulated the imagination of generations of children and adults. Many profess
that they are certain of the answer, and yet their answers are divergent.
The case at bar involves a similarly baffling question, but in significantly lesser proportions
of philosophical mystery. Petitioner claims that, in the two Deeds of Donation he is
impugning, the signatures of the donee were jotted down before the bodies of the
Deeds were typewritten. Respondents maintain that the bodies of the Deeds were
encoded first, and then, a clashing presentation of expert witnesses and circumstantial
evidence ensued. Petitioner's expert claims she is certain of the answer: the signature
came first. Respondents' expert, on the other hand, says that it is impossible to
determine which came first accurately. As both the trial court and the Court of Appeals
ruled in favor of respondents, petitioner is furious how these courts could adopt an
opinion that was "neither here nor there."
However, as it is with the chicken and egg riddle, is the person certain of which came
first necessarily the one who is more credible?
This is a Petition for Review on Certiorari of the Decision 1 and Resolution 2dated 4
September 2002 and 27 November 2002, respectively, of the Court of Appeals in CA-

13

G.R. CV No. 40391 affirming the Joint Decision of the Regional Trial Court (RTC) of Pasig
City dated 8 April 1992 in Civil Cases No. 36089 and No. 36090.
The facts of the case, as summarized by the Court of Appeals, are as follows:
On February 15, 1980, [petitioner] instituted these cases, to wit: (1)
Civil Case No. 36089, entitled: "Augusto Gomez, as Special
Administrator of the Intestate Estate of Consuelo Gomez, Plaintiff,
versus Maria Rita Gomez-Samson, Marcial Samson, Jesus B. Gomez,
and the Registers of Deeds of Pasig and Marikina, Rizal,
Defendants"; and (2) Civil Case No. 36090, entitled: "Augusto
Gomez, as Special Administrator of the Intestate Estate of Consuelo
Gomez, Plaintiff, versus Ariston Gomez, Sr., and Ariston B. Gomez,
Jr., Defendants", both in the Regional Trial Court, Pasig City.
CONSUELO, ARISTON, SR. and Angel, all surnamed Gomez, were
sister and brothers, respectively. MARIA-RITA Gomez-Samson, JESUS
Gomez and ARISTON Gomez, JR. are the children of ARISTON, SR.
while AUGUSTO Gomez is the child of Angel.
In Civil Case No. 36089, plaintiff AUGUSTO alleged in his complaint
that CONSUELO, who died on November 6, 1979, was the owner of
the following real properties:
"(a) A parcel of land, with all the improvements thereon,
situated in Marikina, Metro Manila, covered by Transfer
Certificate of Title No. 340233 in her name, . . .;
"(b) A parcel of land, with all the improvements thereon,
situated in Marikina, Metro Manila, covered by Transfer
Certificate of Title No. 353818 in her name, . . .,"
"(c) A parcel of land, with all the improvements thereon,
situated in Pasig, Metro Manila, covered by Transfer
Certificate of Title No. 268396 in her name, . . .;"
that after the death of Consuelo, defendants Rita and Jesus
fraudulently prepared and/or caused to be prepared a Deed of
Donation Intervivos; that in the said document, Consuelo donated
the above described properties to defendants Rita and Jesus; that
the said defendants forged or caused to be forged the signature
of the donor, Consuelo; that the notarial acknowledgement on the
said document was antedated to April 21, 1979; that on the basis
of the said document defendants sought the cancellation of the
certificates of title in the name of Consuelo and the issuance of
new ones in the names of defendants Rita and Jesus.
On the basis of the foregoing, plaintiff prayed that the Deed of
DonationIntervivos be declared false, null and void ab initio,

and/or be nullified; that TCT Nos. 340233, 353818, and 268396 be

reinstated or be replaced by titles in the name of the Intestate
Estate of Consuelo Gomez; and, that defendants be ordered to
pay damages, by way of attorney's fees and expenses of litigation
plus costs.
On April 24, 1980, private defendants, and nominal defendants
Registers of Deeds of Pasig and Marikina, Rizal, filed their common
answer, denying the material allegations in the complaint and
asserting that a copy of the deed of donation was submitted to
the Notarial Section of the CFI of Quezon City as early as July 2,
1979; that the said document is valid and not a forgery or
otherwise subject to similar infirmity; that the said document being
valid, the properties covered therein passed in ownership to
private defendants, as early as April 20, 1979; that defendants
have the perfect and absolute right to cause the cancellation of
TCT Nos. 340233, 353818, and 26839 and request for the issuance of
new certificates of titles in their respective names; that they have
the right to use, enjoy, possess, dispose and own these properties;
that nolaw was violated by the nominal defendants when the old
certificates of title were cancelled and new certificates were
issued in the name of the private defendants, hence, plaintiff
has no cause of action against the nominal defendants neither has
the court jurisdiction over the foregoing issue.
Defendants thereafter prayed for moral damages of P2,000,000.00;
compensatory damages of P1,000,000.00; exemplary damages of
P500,000.00; attorney's fees of P200,000.00; and that individual
plaintiff be made jointly and severally liable with the estate of
Consuelo Gomez.
In Civil Case No. 36090, the same plaintiff alleged in his complaint
that Consuelo was also the sole and absolute owner of the
following personal properties:
(a) Seventy-five (75) common shares of stock of V-Tri Realty, Inc.
with a total par value of P75,000.00 and covered by Stock
Certificate No. 003;
(b) Eleven thousand eight hundred fifty three (11,853) common
shares of stock of First Philippine Holdings Corporation with a total
par value of P118,530.00 covered by Stock Certificates Nos. A02614 (7,443 shares) and A-02613 (2,040 shares) and A-09018 (2,370
shares);
(c) Jewelries and collector's items, contained in Consuelo Gomez's
Safe Deposit Box No. 44 at the PCI Bank, Marikina Branch, which
were inventoried on January 9, 1980 per Order of the Court in
Special Proceedings No. 9164;

14

(d) A four-door sedan 1978 Mercedes Benz 200 with Motor No.
11593810-050706, Serial/Chassis No. 12302050-069893, Plate No. A6252 and LTC Registration Certificate No. 0140373 valued at
P200,000.00, more or less at the time Consuelo Gomez died;
(e) A four-door sedan 1979 Toyota Corona with Motor No. 12RM031643, Serial/Chassis No. RT-130-901150, Plate No. B-09-373 and
LTC Registration Certificate No. 0358757, valued at P50,000.00,
more or less at the time Consuelo Gomez died;
(f) Two hundred thousand pesos (P200,000.00) including accrued
interests on money market placement with the BA Finance
Corporation per its promissory note No. BAT-0116 dated March 9,
1978.
that after the death of Consuelo, defendants fraudulently
prepared and/or caused to be prepared a Deed of
Donation Intervivos; that in the said document Consuelo donated
the above described properties to defendants Ariston, Sr. and
Ariston, Jr.; that the said defendants forged or caused to be forged
the signature of the donor, Consuelo; that the notarial
acknowledgment on the said document was antedated to April
21, 1979; that on the basis of the said document defendant Ariston,
Sr., [in] December 1978, effected or tried to effect a change of the
LTC registration of the two (2) vehicles; that defendant Ariston, Jr.,
for his part, pre-terminated the money market placements with BA
Finance and received checks in the sums of P187,027.74 and
P4,405.56; that with the exception of the jewelries, which are with
the bank, defendant Ariston, Sr., has benefited and will continue to
benefit from the use of the two (2) vehicles and from the dividends
earned by the shares of stocks.
On the basis of the foregoing, the plaintiff prayed that the Deed of
Donation Intervivos be declared false, null and void ab initio,
and/or be nullified; that defendant Ariston, Sr., be ordered to
deliver the stock certificates, jewelries, collector's items, and
vehicles in his possession plus all the cash dividends earned by the
shares of stock and reasonable compensation for the use of the
two (2) motor vehicles; that defendant Ariston, Jr. be ordered to
pay the amount of P191,533.00 received by him from BA Finance,
with interest from the time he received the amount until he fully
pays the plaintiff; and, damages, by way of attorney's fees and
expenses of litigation, plus costs.
On March 19, 1980, defendants Ariston, Sr. and Ariston Jr., filed their
answer, denying the material allegations in the complaint and
asserting that a copy of the Deed of Donation was submitted to
the Notarial Section of the CFI of Quezon City as early as July 2,
1979; that the said document is valid and not a forgery or
otherwise subject to similar infirmity; that the said document being

valid, the properties covered therein passed in ownership to

defendants, as early as April 20, 1979; and that defendants have
the perfect and absolute right to use, enjoy, possess and own
these properties.

Defendants thereafter prayed for moral damages of P2,000,000.00;

compensatory damages of P1,000,000.00; exemplary damages of
P500,000.00; attorney's fees of P200,000.00; and that individual
plaintiff be made jointly and severally liable with the estate of
Consuelo Gomez.
On May 27, 1980, the plaintiff filed a Motion to Consolidate, in both
cases, which the trial court in Civil Case No. 36090 granted in its
Order dated June 6, 1980. Whereupon, the records of Civil
Case No. 36090 were transmitted to the RTC, Branch 23.
After appropriate proceedings, the trial court directed the parties
to submit their respective memoranda thirty (30) days from their
receipt of the transcript of stenographic notes.
In its joint decision dated April 8, 1992, the trial court dismissed the
complaints. 3
The dispositive portion of the RTC Joint Decision reads:
WHEREFORE, it is Ordered:
1. That the instant complaints be dismissed;
2. That the replevin bonds nos. 2223, 2224, 2225, and 2226 of the
Stronghold Insurance Company, Incorporated be cancelled;
3. That Augusto Gomez and the estate of the late Consuelo
Gomez, jointly and solidarily, should pay to Ariston Gomez, Jr. the
following amounts:
Moral damages of P1,000,000.00;
Exemplary damages of P250,000.00
Attorney's fees of P200,000.00
And costs of suit; with legal interest on all the amounts, except on
costs and attorney's fees, commencing from February 15, 1980,
until fully paid. 4

15

Petitioner filed a Petition for Review with the Court of Appeals. The latter affirmed the
RTC's Joint Decision in the 4 September 2002 assailed Decision, the dispositive portion of
which reads:

9) Whether or not the Court of Appeals seriously erred in not finding

that the totality of circumstantial evidence presented by petitioner
produced a single network of circumstances establishing the
simulation and falsification of the assailed Deeds of Donation. 6

WHEREFORE, the appealed decision is AFFIRMED in toto. 5

Petitioner filed a Motion for Reconsideration, but the same was denied by the Court of
Appeals in the assailed Resolution dated 27 November 2002.
Petitioner filed the present Petition for Review on Certiorari, bringing forth before us the
following issues for our consideration:

As acknowledged by petitioner, findings of fact of the trial court, especially when

upheld by the Court of Appeals, are binding on the Supreme Court. 7 Petitioner,
however, seeks refuge in the following established exceptions 8 to this rule:
1) When the inference made is manifestly mistaken, absurd or
impossible. 9

1) Whether or not the instant petition presents several exceptions to

the general rule that an appeal by certiorari under Rule 45 may
only raise questions of law and that factual findings of the Court of
Appeals are binding on this Honorable Court;

2) When there is grave abuse of discretion in the appreciation of

facts. 10

2) Whether or not the Court of Appeals' Decision is based on a

misapprehension of facts and on inferences that are manifestly
mistaken, absurd or impossible;

4) Where the Court of Appeals manifestly overlooked certain

relevant facts not disputed by the parties and which, if
properly considered, would justify a different
conclusion; 12and

3) Whether or not the Court of Appeals seriously erred in its finding

of fact that Consuelo Gomez herself paid the donor's tax of the
properties subject of the donation on 09 October 1979 when the
evidence on record point to the contrary;
4) Whether or not the Court of Appeals seriously erred in giving
credence to the testimony of former judge Jose Sebastian, the
Notary Public who notarized the assailed Deeds of Donation;

3) When the judgment is based on a misapprehension of facts.11

5) Where the facts set forth by the petitioner are not disputed by
the respondent, or where the findings of fact of the Court
of Appeals are premised on absence of evidence but are
contradicted by the evidence of record. 13
Weight and Credibility of the
Expert Witnesses

5) Whether or not the Court of Appeals seriously erred in dismissing

the irregularities apparent on the face of the assailed Deeds of
Donation as mere lapses of a non-lawyer who prepared them;

The core issue in this Petition, as in that in the lower courts, is whether petitioner was able
to prove that the Deeds of Donation were merely intercalated into two sheets of paper
signed by Consuelo Gomez (Consuelo).

6) Whether or not the Court of Appeals seriously erred in totally

disregarding the very unusual circumstances relative to the alleged
totally execution and notarization of the assailed Deeds of
Donation;

The only direct evidence presented by petitioner on this matter is the testimony of
Zenaida Torres, Document Examiner 14 of the National Bureau of Investigation (NBI).
Respondents, on the other hand, presented their own expert witness, Francisco Cruz,
Chief of Document Examination 15 of the PC-INP Crime Laboratory. Other direct
evidence presented by respondents includes testimonies positively stating that the
Deeds of Donation were signed by Consuelo in their completed form in the presence of
Notary Public Jose Sebastian. These testimonies are that of Jose Sebastian himself, and
that of several of the respondents including Ariston Gomez, Jr. (Ariston, Jr.), who
allegedly drafted said Deeds of Donation.

7) Whether or not the Court of Appeals seriously erred and is

manifestly mistaken in inferring that respondents were able to
sufficiently and substantially explain the reason for the belated
transfer of the pertinent properties covered by the assailed Deeds
of Donation;
8) Whether or not the Court of Appeals seriously erred and is
manifestly mistaken in not giving due weight to the expert opinion
of the NBI representative, which the lower court itself sought;
and IAETDc

As the testimony of Zenaida Torres is the single most important evidence of petitioner, it
is imperative to examine the lengthy discussion of the trial court analyzing her testimony,
and the contradictory findings of Francisco Cruz.

16

Zenaida Torres's testimony, as noted by the trial court, was that she had examined the
two Deeds of Donation, denominated as Documents No. 401 andNo. 402, and her
findings were that the signatures therein were indeed those of Consuelo. However, she
opined that Documents No. 401 and No. 402 were not typed or prepared in one
continuous sitting because the horizontal lines had some variances horizontally.
Nevertheless, she admitted that the vertical lines did not show any variance. IDSETA
Zenaida Torres also testified that with respect to Document No. 401, the typewritten
words "Consuelo C. Gomez" were typed after the handwritten signature "Consuelo C.
Gomez." This is based on her analysis of the letter "o" in the handwritten signature, which
touches the letter "n" in the typewritten name "Consuelo C. Gomez." She could not,
however, make any similar findings with respect to Document No. 402, because the
typewritten words "Consuelo C. Gomez" and the handwritten signature "Consuelo C.
Gomez" "do not even touch" in the latter document.
Zenaida Torres failed to convince the trial court that the Deeds of Donation were not
prepared in one sitting:
To start with, it is very significant that Torres herself admits that the
signatures of Consuelo in the Donations 401 and 402 are genuine.
(This is contrary to the allegations of Augusto in his complaint;
wherein he alleged that the signatures of Consuelo were forged. In
fact, as per the allegations, in Augusto's complaint, the signatures
were forged, after the death of Consuelo).

not the vertical alignment. Yet, the vertical alignment, as admitted

by her, was perfect.
In fact, she had to admit that it is possible that if the paper roller is
loose, the horizontal alignment will have a variance; whereas, the
vertical alignment would have no variance, and there would be
nothing sinister about this. She had to admit this, because she was
confronted with an authority on the matter, more particularly the
book of Wilson Harrison (vide Exhibit "17"). She admitted that she
had not used bromide when she took the photographs of the two
(2) Donations 401 and 402, which photographs she later on
enlarged. She admitted that when she had taken the photographs
of the two (2) Donations, she had not put the typewritten pitch
measure on top. She admitted that when the photographs were
enlarged, the alignment of the typewritten words became
distorted; more so when a typewriter pitch measure is not used,
when photographing the documents.
In effect, insofar as the issue of typewriting in one sitting or not, is
concerned, the testimony of Torres was completely discredited
(Vide TSN of May 19, 1986). 16

On the other hand, the trial court gave weight to the testimony of Francisco Cruz:

(In effect, Augusto is now trying to shift the thrust of his attack, to a
scenario wherein Consuelo allegedly signed two papers in blank,
and thereafter, said Donations 401 and 402 were typed on top.)

Cruz testified on this point that the Donations 401 and 402 were
both typed in one continuous sitting. He elucidated clearly on how
he arrived at this conclusion.

Furthermore, Torres fell apart during, cross-examination. Torres

admitted that she had not taken any specialized studies on the
matter of "Questioned Documents," except on one or two seminars
on "Questioned Documents." She admitted that she had not
passed the Board Exams, as a Chemist; she further admitted that
she has not written any thesis or similar work on the subject matter
at issue.

To start with, he was able to determine that the typewriter used

was the elite typewriter, because as per Cruz, when his typewriting
measuring the instruments were placed over the documents, there
were twelve (12) letters that went inside one inch, which is a
characteristic of an elite typewriter.

Regarding non-typing in one continuous sitting, she admitted that

she had never seen the typewriter used to type the Donations 401
and 402, nor even tried to get hold of it, before she made the
report; that there were no variances insofar as the vertical
alignments of the typewritten documents were concerned; that
there were only variances insofar as the horizontal alignments are
concerned; she admitted that if anybody had wanted to
incorporate a document into a blank sheet of paper, on top of a
signature, the normal step to be taken would be to be careful on
horizontal alignment, which can be seen via the naked eye; and

Secondly, he noticed that the color tone of the typewriter ink is the
same, thru the entire documents.
As per Cruz, this is another indication that the Donations 401 and
402 were prepared in one continuous sitting, because, as per Cruz,
if the typewriter is used one time and sometime after that, the
typewriter is used again, the color tone will most probably be
different.
He further concluded that both the horizontal and vertical
alignments are in agreement. He explained how he arrived at this
conclusion.

17

As per Cruz, by using an instrument which is a typewriting

measuring instrument produced by the Criminal Research Co., Inc.
in the USA and placing said instrument to test the vertical
alignment from the top down to the bottom, there is a perfect
vertical alignment.
In fact, as per Cruz, when he took photographs of the documents,
he had already placed the typewriting measuring instrument over
the document and he showed to the court the enlarged
photographs, indicating clearly that all the vertical alignments are
all in order.
He also found out that the horizontal and vertical alignments are in
agreement.
He explained that the slight variances as to the spacing of the
words "Know All Men By These Presents" and the words "That I
Consuelo C. Gomez, single, of legal age, Filipino, and a resident of
24 Pine Street, New Marikina Subdivision, Marikina", there is a slight
disagreement in the spacing, but not in the alignment.
He explained that the normal reason for such discrepancy in the
spacing is because the typist sometimes tries to push the variable
spacer; the [button] on the left side of the roller, and if you press
that round [button], there will be a variance spacing namely one
space, two spaces, and three spaces; and these are not attached
so there is a variable in the spacing.
In short, this was due to the pushing of the variable paper by the
typist.
Furthermore, he emphasized that the left margins are aligned and
this signifies that there was typing in one continuous sitting,
because if you type on a paper and re-insert it again, there are
differences in the left hand margin. All of his findings appear in the
blow up photographs which were marked as Exhibits "31" to "34".
He even pointed out the differences in the Jurat wherein
admittedly, Judge Sebastian inserted the date "21st" and "1"
(page number), "401" (document number), "I" (book number), and
"82" (series); and also his signature "Jose R. Sebastian" and his
"PTR Number" (vide pages 12 to 19, TSN of April 25, 1982).
All attempts by opposite counsel to discredit the testimony of Cruz
on this issue, proved futile. 17
As stated above, petitioner also alleges that the signature "Consuelo C. Gomez" was
written before the typewritten name "Consuelo C. Gomez." In this second round of

analysis of the respective testimonies of Zenaida Torres and Francisco Cruz, the trial
court arrived at the same conclusion:
[ZENAIDA TORRES'S] FINDINGS ARE BASED SOLELY ON A SINGLE
HANDWRITTEN LETTER "O", WHICH TOUCHES (DOES NOT EVEN
INTERSECT) THE TYPEWRITTEN LETTER "N". BASED ON THIS, WITHOUT
MORE, TORRES CONCLUDED THAT THE TYPEWRITTEN NAME
"CONSUELO C. GOMEZ" CAME AFTER THE HANDWRITTEN SIGNATURE
"CONSUELO C. GOMEZ".
We need but cite authorities on the matter (with which Authorities
Torres was confronted and which authorities she had to admit),
which read as follows:
The Intersection of Ink Lines with Typescript. It is often
stated that is possible to determine whether an ink line
which intersects typescript was written before or after the
typing. The theory is simple; most typewriter inks are
greasy and an ink line tends to shrink in width as it passes
over a greasy place on the paper. If, indeed, an ink line is
observed to suffer a distinct reduction in width every time
it intersects the typescript it may safely be concluded that
the ink line was written after the typescript.
In practice, however, ink lines written across typescript are
rarely seen to suffer any appreciable shrinkage in width,
since the amount of oily medium transferred from the
ribbon to the paper is rarely sufficient to have any effect.
Indeed, if the ink happens to be alkaline, surplus ink,
instead of shrinking, may spread out into the typescript to
increase the width of the inkline at the intersection. In the
case the proof that the ink followed the typescript would
be the presence of a swelling rather than a shrinkage.
Experience has shown that it is rarely possible for any
definite opinion as to the order of appearance on the
paper for intersecting ink lines and typescript to be
justified on the [meager] amount of evidence which
generally available.
A similar state of affairs will be found to hold for carbon
paper and waxer; which have much in common with
typewriter ribbons in the way the mark they make on
paper react with intersecting ink lines". (Wilson, Suspect
Documents; Exhibits "19"; "19-A"; "37"; "37-D"; underscoring
ours).
In fact, the very authority of Torres on the matter, states as
follows:

18

"Sequence of Writing
Intersecting writing strokes may have distinctive patterns,
depending upon the order of writing the lapse of time
between the two writings, the density of the two strokes
and the kind of inks, writing instruments, and paper used.
With a binocular microscope or a hand-magnifier aided
by skillfully controlled light and photography, the true
order of preparation may be revealed and demonstrated
to a lay observer.
What appears to be the obvious solution may not always
be the correct answer. For example, the line of deepest
color usually appears on top even if it was written first.
Careful study and testing is necessary before reaching a
conclusion. Some of the more common criteria for
determining sequence are considered in the following
paragraphs.
If we considered the intersection of two writing strokes or
the intersection of writing and typewriting the majority of
problems are covered. Substantial, repeated intersections
of two writings offer a higher probability of success than a
single indifferent intersection, such as a weak stroke
crossing another which only very infrequently can
produce a clear indication of the order of writing".
(Exhibits "V" and "V-1" (underscoring ours). 18
The trial court again sided with Francisco Cruz who testified, citing authorities, 19that it is
impossible to determine accurately which came first, because there
were no intersections at all. 20 The trial court added: "[i]n fact, common sense, without
more, dictates that if there are no intersections (between the typewritten and the
handwritten words), it would be extremely difficult, if not impossible, to determine which
came first." 21 The Court of Appeals found nothing erroneous in these findings of the trial
court. 22
Petitioner claims that the testimony of Zenaida Torres, having positively maintained that
the handwritten signatures "Consuelo C. Gomez" in both Deeds of Donation were
affixed before the typewritten name of Consuelo C. Gomez, cannot possibly be
overcome by the opinion of Francisco Cruz that was "neither here not there." 23
Petitioner also puts in issue the fact that Zenaida Torres was a court-appointed expert,
as opposed to Francisco Cruz who was merely designated by respondents. Petitioner
also assails the credibility of Francisco Cruz on the ground that he had once testified in
favor of respondent Ariston, Jr. 24
Finally, petitioner stresses that Zenaida Torres conducted her tests on the carbon
originals of both Deeds of Donation that were then in the possession of the Notarial

Register of Quezon City. On the other hand, Francisco Cruz conducted his tests, with
respect to Document No. 401, on the original in the possession of Ariston, Jr. cTDaEH
On the first point, we agree with petitioner that positive evidence 25 is, as a general rule,
more credible than negative evidence. 26 However, the reason for this rule is that the
witness who testifies to a negative may have forgotten what actually occurred, while it
is impossible to remember what never existed. 27
Expert witnesses, though, examine documentary and object evidence precisely to
testify on their findings in court. It is, thus, highly improbable for an expert witness to
forget his examination of said evidence. Consequently, whereas faulty memory may be
the reason for the negative testimonies delivered by ordinary witnesses, this is unlikely to
be so with respect to expert witnesses. While we, therefore, cannot say that positive
evidence does not carry an inherent advantage over negative evidence when it
comes to expert witnesses,28 the process by which the expert witnesses arrived at their
conclusions should be carefully examined and considered.
On this respect, Prof. Wigmore states that the ordinary expert witness, in perhaps the
larger proportion of the topics upon which he may be questioned, has not a knowledge
derived from personal observation. He virtually reproduces, literally or in substance,
conclusions of others which he accepts on the authority of the eminent names
responsible for them. 29 In the case at bar, the expert witnesses cited sources as bases
of their observations. Francisco Cruz's statement that "no finding or conclusion could be
arrived at," 30 has basis on the sources presented both by him and by Zenaida Torres.
Both sets of authorities speak of intersecting ink lines. However, the typewritten words
"Consuelo C. Gomez" barely touch and do not intersect the handwritten signature
Consuelo C. Gomez in Document No. 401. In Document No. 402, said typewritten words
and handwritten signature do not even touch.

In the case at bar, therefore, the expert testimony that "no finding or conclusion can be
arrived at," was found to be more credible than the expert testimony positively stating
that the signatures were affixed before the typing of the Deeds of Donation. The former
expert testimony has proven to be more in consonance with the authorities cited by
both experts.
As regards the assertion that Zenaida Torres conducted her tests on the carbon originals
of both Deeds of Donation found in the notarial registrar, whereas Francisco Cruz merely
examined the original in the possession of Ariston, Jr. with respect to Document No. 401,
suffice it to say that this circumstance cannot be attributed to respondents. After the
examination of the documents by Zenaida Torres, fire razed the Quezon City Hall. The
carbon originals of said Deeds were among the documents burned in the fire. Petitioner
never rebutted respondents' manifestation concerning this incident, nor accused
respondents of burning the Quezon City Hall.
Other than the above allegations, petitioner's attack on the entire testimony of
Francisco Cruz (including the part concerning whether the Deeds were typed in one
continuous sitting) rests primarily in the contention that, while Zenaida Torres was court-

19

appointed, Francisco Cruz's testimony was solicited by respondents, one of whom had
previously solicited such testimony for another case.

Alleged patent irregularities on the

face of the assailed Deeds of
Donation

In United States v. Trono, 31 we held:

Expert testimony no doubt constitutes evidence worthy of meriting
consideration, although not exclusive on questions of a
professional character. The courts of justice, however, are not
bound to submit their findings necessarily to such testimony; they
are free to weigh them, and they can give or refuse to give them
any value as proof, or they can even counterbalance such
evidence with the other elements of conviction which may have
been adduced during the trial. (Emphasis supplied.)
Similarly, in Espiritu v. Court of Appeals 32 and Salomon v. Intermediate Appellate
Court, 33 this Court held:
Although courts are not ordinarily bound by expert testimonies,
they may place whatever weight they choose upon such
testimonies in accordance with the facts of the case. The relative
weight and sufficiency of expert testimony is peculiarly within the
province of the trial court to decide, considering the ability and
character of the witness, his actions upon the witness stand, the
weight and process of the reasoning by which he has supported his
opinion, his possible bias in favor of the side for whom he testifies,
the fact that he is a paid witness, the relative opportunities for
study or observation of the matters about which he testifies, and
any other matters which serve to illuminate his statements. The
opinion of the expert may not be arbitrarily rejected; it is to be
considered by the court in view of all the facts and circumstances
in the case and when common knowledge utterly fails, the expert
opinion may be given controlling effect (20 Am. Jur., 10561058). The problem of the credibility of the expert witness and the
evaluation of his testimony is left to the discretion of the trial court
whose ruling thereupon is not reviewable in the absence of an
abuse of that discretion. (Underscoring supplied.)
Thus, while the expert witness' possible bias in favor of the side for whom he or she
testifies, and the fact that he or she is a paid witness, may be considered by the trial
court, the latter should weigh the same with all the other evidence adduced during
trial, as well as with the witness' deportment, actions, ability, and character upon the
witness stand. The trial court is consequently given the discretion in weighing all these
circumstances in its determination of the expert witness' credibility, as it is in a better
position than the appellate courts to observe the demeanor of these witnesses. As there
is no evidence of abuse of discretion on the part of the trial court in such determination,
the latter is not reviewable by this Court.

As previously mentioned, the testimony of Zenaida Torres constitutes the only direct
evidence presented by petitioner to prove that the Deeds of Donation were merely
intercalated over the signature of Consuelo. Petitioner, however, also presents the
following circumstantial evidence and arguments to prove the same, claiming that
there are patent irregularities on the face of the assailed Deeds of Donation:
1) Both deeds are each one-page documents contained in a
letter size (8" 1/2" x "11") paper, instead of the usual legal
size (8" 1/2" x "14") paper, and typed single spaced, with
barely any margin on its four sides; 34
2) In Doc. 401, three parcels of land located in two different
municipalities were purportedly donated to two donees
in the same document; 35
3) In Doc. 402, shares of stock in two corporations, jewelries and
collector's items in a bank deposit box, two registered
cars, cash and money placement in another bank, and a
bodega were donated to three donees in the same
document; 36
4) The bodega mentioned in Doc. No. 402 was not owned by
Consuelo. If the Deeds were executed by Consuelo, she
would surely have known this fact as she was the treasurer
of V-TRI Realty Corporation; 37
5) If Doc. 401 is superimposed on Doc. 402, the signature of
Consuelo on both documents appear almost in the same
place; 38
6) The whole of both Deeds of Donation, including the notarial
acknowledgement portion and the TAN Numbers and
Residence Certificates of the signatories, were typed with
only one typewriter. The only portions that seemed to
have been typed with a different machine are the date
("21st") below the acknowledgement and the filledin numbers of the "Doc. No. ___; Book No. ___; Page No.
___'" portion, the name "Jose R. Sebastian" above the
words NOTARY PUBLIC and the PTR Number with date and
place of issue; 39
7) The PTR Number and its date and place of issue appear in the
right hand side of the name and signature of Jose
Sebastian, instead of below it; 40

20

8) The inserted date (which was typed with the same machine
used for typing the name of notary public Jose Sebastian)
is different from the date of the clause "In WITNESS
WHEREOF, the parties hereunto set their hands in Quezon
City, on the 20th day of April/1979" (which was typed with
another machine; the one used in typing the body of the
deed and the body of the acknowledgment); 41

surrounding circumstances, may help in determining whether it is genuine or

forged. 45 However, neither the expert witnesses, nor our personal examination of the
exhibits, had revealed such a questionable physical condition.

9) The TAN Numbers and the Residence Certificate Numbers of the

purported donor and donees have already been typed
with the same machine that was used in typing the body
of the deed and the body of the acknowledgement; 42

That the subject Deeds of Donation appear to have conveyed numerous properties in
two sheets of paper does not militate against their authenticity. Not all people equate
length with importance. The simplicity and practicality of organizing the properties to be
donated into real and personal properties, and using one-page documents to convey
each category, are clearly appealing to people who value brevity. The same appeal of
conciseness had driven petitioner to make a single-spaced Supplemental
Memorandum whose only object was to summarize the arguments he has laid down in
the original twice-as-long Memorandum, 46 an endeavor that we, in fact, appreciate.

10) It is highly questionable that a supposedly well-educated

person like Ariston Gomez, Jr. would not have thought of
preparing at least five copies of each document as there
were four donees and one donor. 43
The Court of Appeals ruled:
As to the alleged intercalation of the text of the deeds of donation
above the supposedly priorly affixed signature of CONSUELO on a
blank sheet of bond paper, as shown by the one-page document
in a letter size paper, typed single space with barely any room left
on the top, bottom and left and right margins, as well as the lack of
copies thereof, it has been explained that the same was due to
the fact that the said documents were prepared by defendant
ARISTON, JR., a non-lawyer inexperienced with the way such
documents should be executed and in how many copies. . . . .
xxx xxx xxx
Accordingly, it is not surprising that someone as unfamiliar and
inexperienced in preparing a deed of donation, or any deed of
conveyance for that matter, as ARISTON, JR., prepared the
documents that are the subject matter of the case at bar in the
manner that he did.44
Petitioner counters that the alleged irregularities "do not relate to the proper
construction or manner of writing the documents as would necessitate the expertise of
a lawyer. Rather, they relate to matters as basic as observing the proper margins at the
top, left, right and bottom portions of the document, using the appropriate paper size
and number of pages that are necessary and observing appropriate spacing and
proper placement of the words in the document."
All these alleged irregularities are more apparent than real. None of these alleged
irregularities affects the validity of the subject Deeds of Donation, nor connotes fraud or
foul play. It is true that the condition and physical appearance of a questioned
document constitute a valuable factor which, if correctly evaluated in light of

Legal documents contained in 8 1/2 x 11 paper are neither unheard of, nor even
uncommon. The same is true with regard to single-spaced legal documents; in fact,
petitioner's Supplemental Memorandum was actually single-spaced.

The allegation concerning the use of one typewriter to encode both Deeds of
Donation, including the notarial acknowledgment portion, TAN, and residence
certificates, is purely paranoia. Being in the legal profession for many years, we are
aware that it is common practice for the parties to a contract to type the whole
document, so that all the notary public has to do is to input his signature, seal, and
the numbers pertaining to his notarial registry.

The use of single-paged documents also provides an explanation as to why the

PTR number and the date and place of issue are found in the right-hand side of the
name and signature of Jose Sebastian, instead of below it. We agree with respondents
that it is irrational, impractical, and contrary to human experience to use another page
just to insert those minute but necessary details. Such use of single-paged documents,
taken together with the fact that the Deeds of Donation are of almost the same length,
are also the reasons why it does not baffle us that the signatures of Consuelo appear at
around the same portions of these Deeds. Indeed, we would have been suspicious had
these documents been of varying lengths, but the signatures still appear on the same
portions in both.
The only observations concerning the physical appearance of the subject Deeds of
Donation that truly give us doubts as to their authenticity are the relatively small margins
on the sides of the same, the lack of copies thereof, and the alleged inclusion in
Document No. 402 of a bodega allegedly not owned by Consuelo. However, these
doubts are not enough to establish the commission of fraud by respondents and to
overturn the presumption that persons are innocent of crime or wrong. 47 Good faith is
always presumed. 48 It is the one who alleges bad faith who has the burden to prove
the same, 49 who, in this case, is the petitioner.
The small margins in the said Deeds of Donation, while indicative of sloppiness, were not
necessarily resorted to because there was a need to intercalate a long document and,
thus, prove petitioner's theory that there were only two pieces of paper signed by

21

Consuelo. Respondents admit that the use of one sheet of paper for both Deeds of
Donation was intentional, for brevity's sake. While the ensuing litigation could now have
caused regrets on the part of Ariston, Jr. for his decision to sacrifice the margins for
brevity's sake, there still appears noindication that he did so maliciously. Indeed, law
professors remind bar examinees every year to leave margins on their booklets. Despite
the importance examinees put into such examinations, however, examinees seem to
constantly forget these reminders.
The testimonies of Ariston Gomez, Sr. (Ariston, Sr.), Ariston, Jr., Maria Rita Gomez-Samson
(Maria Rita), and Notary Public Jose Sebastian tend to show that there were one original
and two copies each of Documents No. 401 and No. 402. Of these documents, it was
the original of Document No. 402 and a duplicate original of Document No. 401 which
were actually presented by petitioner himself before the trial court, through the
representative of the notarial registrar of Quezon City, who testified pursuant to a
subpoena. The latter two documents were submitted to the NBI for examination by
petitioner and by the NBI Handwriting Expert, Zenaida Torres.
Petitioner testified that he could not find copies of the two Deeds of Donation with the
Bureau of Records Management. He, however, was able to find certified true copies of
these documents with the Register of Deeds and the Land Transportation
Commission. 50
According to the testimony of Ariston, Jr., the original of Document No. 401 was
separated from the brown envelope, containing the other copies of the Deeds of
Donation, which Jose Sebastian left with respondents, as they were trying to fit the same
into a certain red album. On the other hand, Maria Rita testified that one copy each of
the duplicate originals of Documents No. 401 and No. 402 were lost. Maria Rita
explained that when she was about to leave for Spain to visit her sister in Palma de
Mallorica, her father, Ariston, Sr., gave her the brown envelope, containing duplicate
originals of the Deeds of Donation in question, to show to her sister in Palma de
Mallorica. 51 Maria Rita explained in detail how her handbag was stolen as she was
praying in a chapel while waiting for the connecting flight from Madrid to Palma de
Mallorica. The handbag allegedly contained not only duplicate originals of the said
Deeds of Donation, but also other important documents and her valuables. Maria Rita
presented the police report of the Spanish police authorities 52 and her letter to the
Valley National Bank of U.S.A., 53 regarding these losses.
Notary public Jose Sebastian retained two copies of the Deeds of Donation in his files.
Jose Sebastian explained that he did so because Consuelo wanted two copies of each
document. Since Jose Sebastian had to transmit to the Notarial Registrar duplicate
originals of the document, he had to photocopy the same to keep as his own copies,
and transmit to the Notarial Registrar whatever duplicate original copies he had. Jose
Sebastian did not notice that, instead of retaining a duplicate original of Document No.
402, what was left with him was the original. 54
While it cannot be denied that the unfortunate incidents and accidents presented by
respondents do arouse some suspicions, the testimonies of Ariston, Jr., Maria Rita, and
Jose Sebastian had been carefully examined by the trial court, which found them to be
credible. Time and again, this Court has ruled that the findings of the trial court
respecting the credibility of witnesses are accorded great weight and respect since it

had the opportunity to observe the demeanor of the witnesses as they testified before
the court. Unless substantial facts and circumstances have been overlooked or
misunderstood by the latter which, if considered, would materially affect the result of
the case, this Court will undauntedly sustain the findings of the lower court. 55
All petitioner has succeeded in doing, however, is to instill doubts in our minds. While
such approach would succeed if carried out by the accused in criminal cases, plaintiffs
in civil cases need to do much more to overturn findings of fact and credibility by the
trial court, especially when the same had been affirmed by the Court of Appeals. It
must be stressed that although this Court may overturn a conviction of the lower court
based on reasonable doubt, overturning judgments in civil cases should be based on
preponderance of evidence, and with the further qualification that, when the scales
shall stand upon an equipoise, the court should find for the defendant. 56
Respondents also point out that Ariston, Jr., the person they claim to have prepared said
Deeds of Donation, was never confronted during the trial with all these alleged
irregularities on the face of the Deeds of Donation. As such, the trial court was never
given a chance to determine whether Ariston, Jr. would have given a rational, logical
and acceptable explanation for the same.
Respondents are correct. As the alleged irregularities do not, on their faces, indicate
bad faith on the part of respondents, it is necessary for petitioner to confront
respondents with these observations. Respondents would not have thought that the
Deeds of Donation would be impugned on the mere basis that they were written on
short bond paper, or that their margins are small. Respondents were thus deprived of a
chance to rebut these observations by testimonies and other evidence, and were
forced to explain the same in memoranda and briefs with the appellate courts, where
these observations started to crop up. It would have been different if the date of the
documents had been after Consuelo's death, or if there had been obvious alterations
on the documents. In the latter cases, it would have been the responsibility of
respondents' counsel to see to it that Ariston, Jr. explain such inconsistencies.
Payment of donor's tax before the
death of Consuelo
In ruling that there had been no antedating or falsification of the subject Deeds of
Donation, the Court of Appeals was also persuaded by the following evidence: (1) the
finding that it was the deceased CONSUELO herself who paid the donor's tax of the
properties subject of the donation, as evidenced by the Philippine Commercial and
Industrial Bank (PCIB) check she issued to the Commissioner of the Bureau of Internal
Revenue (BIR) on 9 October 1979, in the amount of P119,283.63, and (2) the testimony
and certification dated 22 November 1979 of Jose Sebastian that the said documents
were acknowledged before him on 21 April 1979. 57 Respondents had presented
evidence to the effect that Consuelo made an initial payment of P119,283.63 for the
Donor's Tax on 9 October 1979, while respondent Ariston, Sr., supplied the deficiency of
P2,125.82 on 4 December 1979.
Petitioner claims that the Court of Appeals seriously erred in its finding of fact that
Consuelo herself paid the donor's tax of the properties subject of the donation on 9

22

October 1979, as the evidence allegedly shows that the Donor's Tax was paid on 4
December 1979, or a month after Consuelo's death. 58Petitioner thereby calls our
attention to his Exhibit "O," a certificate dated 4 December 1979 issued by Mr. Nestor M.
Espenilla, Chief of the Transfer Taxes Division of the BIR, confirming the payment of the
donor's tax. The certificate reads:
LUNGSOD NG QUEZON
December 4, 1979

that Philippine Trust Company Bank, Cubao Branch, received the check on 4
December 1979 as a collection agent of the BIR.
Respondents, on the other hand, presented the following documents to prove payment
of the Donor's Tax before the death of Consuelo on 6 November 1979:
1) The covering letter to the BIR Commissioner dated 24 September 1979 and prepared
by Mariano A. Requija, accountant of Consuelo and Ariston, Jr., which included the
Donor's Tax Return for the properties covered by the two Deeds of Donation. The letter
was stamped received by the BIR Commissioner on 8 October 1979; 61

TO WHOM IT MAY CONCERN:

This is to certify that MS. CONSUELO C. GOMEZ of 8059 Honradez
St., Makati, Metro Manila, paid donor's tax on even date in the
amount of P121,409.45 inclusive of surcharge, interest and
compromise penalties as follows:
RTR No. 2814499, PTC Conf. Receipt No. 2896956
P119,283.63

2) Another letter dated 24 September 1979 executed by Mariano A. Requija containing

the breakdown of the donations received by the BIR on 8 October 1979; 62
3) A schedule of gifts which was also dated 24 September 1979 and which was also
received by the BIR on 8 October 1979, enumerating all the donated properties
included in the Deeds of Donation. 63
4) The Donor's Tax Return covering the properties transferred in the two Deeds of
Donation filed, received, and receipted by the BIR Commissioner on 8 October 1979; 64

RTR No. 2814500/PTC Conf. Receipt No. 2896957 2,125.82

5) The 9 October 1979 PCIB Personal Check No. A144-73211 issued by Consuelo in favor
of the BIR Commissioner in the amount of P119,283.63. 65

6) An "Authority to Issue Tax Receipt" issued by the BIR Commissioner on 21 October 1979
for a total amount of P119,283.63. 66

Total P121,409.45
This certification is issued upon request of Mr. Ariston Gomez, Sr.
(SGD.) NESTOR M.
ESPENILLA
Chief, Financing, Real
Estate and Transfer
Taxes Division
TAN E2153-B0723-A7 59
Petitioner highlights the fact that the Revenue Tax Receipts (RTRs) and the Confirmation
Receipts for the payments supposedly made by Consuelo on 9 October 1979 and by
respondent Ariston, Sr. on 4 December 1979 bore consecutive numbers, despite being
issued months apart. Petitioner also points to the fact that the tax was stated in the
certification to have been paid "on even date" meaning, on the date of the
certification, 4 December 1979.

Petitioner presented further the check used to pay the Donor's Tax, which, petitioner
himself admits, was signed by Consuelo. 60 Petitioner draws our attention to the words
"RECEIVED BIR, P.T.C. CUBAO BR., NON-NEGOTIABLE, T-10 DEC. 4." Petitioner concludes

Before proceeding further, it is well to note that the factum probandum 67petitioner is
trying to establish here is still the alleged intercalation of the Deeds of Donation on blank
pieces of paper containing the signatures of Consuelo. Thefactum probans 68 this time
around is the alleged payment of the Donor's Tax after the death of Consuelo.
Firstly, it is apparent at once that there is a failure of the factum probans, even if
successfully proven, to prove in turn the factum probandum. As intimated by
respondents, payment of the Donor's Tax after the death of Consuelo does not
necessarily prove the alleged intercalation of the Deeds of Donation on blank pieces of
paper containing the signatures of Consuelo.
Secondly, petitioner failed to prove this factum probandum.
Ariston, Jr. never testified that Consuelo herself physically and personally delivered PCIB
Check No. A144-73211 to the BIR. He instead testified that the check was prepared and
issued by Consuelo during her lifetime, but that he, Ariston, Jr., physically and personally
delivered the same to the BIR. 69 On the query, however, as to whether it was delivered
to the BIR before or after the death of Consuelo, petitioner and respondents presented
all the conflicting evidence we enumerated above.
The party asserting a fact has the burden of proving it. Petitioner, however, merely
formulated conjectures based on the evidence he presented, and did not bother to

23

present Nestor Espenilla to explain the consecutive numbers of the RTRs or what he
meant with the words "on even date" in his certification. Neither did petitioner present
any evidence that the records of the BIR Commissioner were falsified or antedated,
thus, letting the presumption that a public official had regularly performed his duties
stand. This is in contrast to respondents' direct evidence attesting to the payment of said
tax during the lifetime of Consuelo. With respect to respondents' evidence, all that
petitioner could offer in rebuttal is another speculation totally unsupported by evidence:
the alleged fabrication thereof.
Credibility of Jose Sebastian
Petitioner claims that no credence should have been given to the testimony of the
notary public, Jose Sebastian, as said Jose Sebastian is the same judge whom this Court
had dismissed from the service in Garciano v. Sebastian. 70 Petitioner posits that the
dismissal of Judge Jose Sebastian from the service casts a grave pall on his credibility as
a witness, especially given how, in the course of the administrative proceedings against
him, he had lied to mislead the investigator, as well as employed others to distort the
truth.
Petitioner further claims that the reliance by the Court of Appeals on the 22 November
1979 Certification by Jose Sebastian is misplaced, considering the questionable
circumstances surrounding such certification. Said certification, marked as petitioner's
Exhibit "P," reads:

Very respectfully,
(Sgd.) JOSE R.
SEBASTIAN
Notary Public 71
Petitioner points out that the Certification was made after the death of Consuelo, and
claims that the same appears to be a scheme by Jose Sebastian to concoct an
opportunity for him to make mention of the subject Deeds of Donation intervivos,
"despite the plain fact that the latter had utterly no relation to the matter referred to by
Jose Sebastian in the opening phrase of the letter."72
It is well to note that, as stated by the Court of Appeals, Jose Sebastian was originally a
witness for petitioner Augusto. As such, Rule 132, Section 12, of the Rules of Court
prohibits petitioner from impeaching him:
SEC. 12. Party may not impeach his own witness. Except with
respect to witnesses referred to in paragraphs (d) and (e) of
section 10, the party producing a witness is not allowed to
impeach his credibility.
A witness may be considered as unwilling or hostile only if so
declared by the court upon adequate showing of his adverse
interest, unjustified reluctance to testify, or his having misled the
party into calling him to the witness stand.

November 22, 1979

HON. ERNANI CRUZ PAO
Executive Judge
CFI Quezon City
Sir:
In connection with the discrepancies noted by the Acting Clerk of
Court in my notarial report pertaining to another document
submitted to the Notarial Section last July 2, 1979 I have the honor
to certify that documents Nos. 401 and 402 referring to Donations
Inter Vivos executed by Donor Consuelo C. Gomez in favor of
Donees Ma. Rita Gomez-Samson et. al. were signed in my
presence by all the parties and their instrumental witnesses on April
21, 1979 in my office. I hereby further certify that said two
documents among other documents were reported by me in
accordance with law on July 2, 1979, for all legal intents and
purposes.
In view of the above, it is respectfully requested that the certified
true copies of the said two documents officially requested by one
of the Donees be issued.

The unwilling or hostile witness so declared, or the witness who is an

adverse party, may be impeached by the party presenting him in
all respects as if he had been called by the adverse party, except
by evidence of his bad character. He may also be impeached
and cross-examined by the adverse party, but such crossexamination must only be on the subject matter of his examinationin-chief.
This rule is based on the theory that a person who produces a witness vouches for him as
being worthy of credit, and that a direct attack upon the veracity of the witness "would
enable the party to destroy the witness, if he spoke against him, and to make him a
good witness, if he spoke for him, with the means in his hands of destroying his credit, if
he spoke against him." 73
Neither had there been declaration by the court that Jose Sebastian was an unwilling or
hostile witness. Jose Sebastian is also neither an adverse party, nor an officer, director
nor a managing agent of a public or private corporation or of a partnership or
association which is an adverse party. 74
Be that as it may, even if Jose Sebastian had been declared by the court as an
unwilling or hostile witness, the third paragraph of Section 12 as quoted above, in
relation to Section 11 75 of the same Rule, only allows the party calling the witness to
impeach such witness by contradictory evidence or by prior inconsistent statements,

24

and never by evidence of his bad character. Thus, Jose Sebastian's subsequent
dismissal as a judge would not suffice to discredit him as a witness in this case. ETHIDa
We have also ruled in People v. Dominguez, 76 which, in turn cited Cordial v.
People, 77 that:
(E)ven convicted criminals are not excluded from
testifying in court so long as, having organs of sense, they
"can perceive and perceiving can make known their
perceptions to others."
The fact of prior criminal conviction alone does not suffice to
discredit a witness; the testimony of such a witness must be
assayed and scrutinized in exactly the same way the testimony of
other witnesses must be examined for its relevance and credibility.
. . . . (Emphasis supplied.)
The effect of this pronouncement is even more significant in this case, as Jose
Sebastian has never been convicted of a crime before his testimony, but
wasinstead administratively sanctioned eleven years after such testimony. Scrutinizing
the testimony of Jose Sebastian, we find, as the trial court and the Court of Appeals
did, no evidence of bias on the part of Jose Sebastian. On top of this, Jose Sebastian's
testimony is supported by the records of the notarial registry, which shows that the
documents in question were received by the Notarial Registrar on 2 July 1979, which
was four months before the death of Consuelo on 6 November 1979.
Alleged unusual circumstances
relative to the execution and
notarization of the subject Deeds of
Donation
The last set of circumstantial evidence presented by petitioner to prove the alleged
intercalation of the subject Deeds of Donation on two blank papers signed by Consuelo
are the following allegedly unusual circumstances relative to the execution and
notarization of the said deeds. According to petitioner:
1. The signing and acknowledgement of the Deeds of Donation on
21 April 1979 is highly improbable and implausible,
considering the fact that Consuelo left the same day for
the United States on a pleasure trip; 78

2. The flight time of Consuelo on 21 April 1979 was 11:00 a.m.. And
even assuming that the flight time was 1:00 p.m., as
contended by respondents, the ordinary boarding
procedures require Consuelo to be at the airport at least
two hours before flight time, or 11:00 a.m.. Petitioner
points out that respondents' alleged time frame (from 7:00

a.m. to 11:00 a.m.) is not enough to accomplish the

following acts: respondents and Consuelo leaving
Marikina at 7:00 a.m. and arriving at the notary public
Jose Sebastian's house at Pag-asa, Q.C. at about 8:00
a.m. to 8:30 a.m.; some "small talk with Jose Sebastian;
Jose Sebastian examining the documents; Jose Sebastian
having a closed meeting with Consuelo to discuss the
documents; Jose Sebastian reading the documents to
respondents line by line and asking the latter whether
they accepted the donation; Jose Sebastian typing the
notarial entries; the parties signing the deeds; Jose
Sebastian talking privately with Consuelo, who paid the
former in cash for his services; Ariston Gomez, Jr. driving
Consuelo and other respondents back to Marikina, and
dropping the other respondents at their respective
residences; picking up Consuelo's luggage; and Ariston
Gomez, Jr. bringing Consuelo to the Manila International
Airport; 79
3. It is contrary to human experience for Consuelo and respondents
not to make a prior arrangement with the notary public
Jose Sebastian and instead take a gamble on his being in
his office; 80
4. It is illogical for Consuelo to rush the execution of the donations
when she was in fact planning to come back from her
pleasure trip shortly, as she did; 81
5. The choice of a notary public from Quezon City is highly suspect,
when Consuelo and respondents reside in Marikina. It is
also illogical that Consuelo would have chosen a notary
public whom she met only on the same day she
executed the Deeds, especially when Consuelo had a
regular lawyer whose notarial services she availed of only
two weeks before her death; 82
6. It is improbable that Consuelo paid Jose Sebastian in cash, for
there is no reason for her to carry much cash in peso
when she was about to leave for the United States in that
same morning; 83
7. Maria Rita's residence certificate was obtained from Manila
when she is a resident of Marikina. Also, Maria Rita
obtained said residence certificate on 20 April 1979, and
yet Maria Rita testified that she was surprised to know of
the donation only on 21 April 1979. 84 Also suspicious are
the circumstances wherein Ariston Gomez, Jr. obtained a
residence certificate on 17 April 1979, when he testified
that he knew of the schedule for signing only on 20 April
1979, and Consuelo had two residence certificates, as

25

she used different ones in the Deeds of Donation and the

document notarized two weeks before her death; 85
8. If Consuelo was really frugal, she could have also made a will; 86
9. All the instrumental witnesses of the Deeds of Donation are
biased, being themselves either donees of the other
Deed of Donation, or a relative of a donee; 87 and
10. Respondents were not able to sufficiently and substantially
explain the belated transfer of the properties covered by
the assailed Deeds of Donation. Petitioner points to Maria
Rita's testimony that the real properties were transferred
after the death of Consuelo. While respondents assert
that the personal properties were transferred to them prior
to Consuelo's death, evidence shows otherwise. 88
This Court does not find anything suspicious in a person wanting to transfer her properties
by donation to her loved ones before leaving for abroad via an airplane. While many
believe these days that taking the plane is the "safest way to travel," this has not always
been the case. The fear that planes sometimes crash, now believed to be irrational, has
always been at the back of the minds of air travelers. Respondents maintain in their
testimonies before the RTC that the Deeds were completed to the satisfaction of
Consuelo only on 20 April 1979. She allegedly wanted to have the documents signed
and notarized before she left for abroad.
The claim that the flight time of Consuelo was at 11:00 a.m. is hearsay thrice removed,
and thus cannot be given any weight. Petitioner claims that he was told by his twelveyear old son that Consuelo was leaving at 11:00 a.m. on 21 April 1979, such son having
learned about this from the maid of Consuelo when the son called Consuelo's house
that day. 89 This is in contrast to Maria Rita's positive testimony that the flight time was at
1:00 p.m. on the same day. 90 Maria Rita joined Consuelo in this flight.
As regards petitioner's claim that respondents' alleged time frame in the morning of 21
April 1979 was insufficient, this Court is not convinced. As held by the Court of Appeals,
petitioner did not present any proof that it had been impossible to perform those
alleged acts within three hours. 91 As argued by respondents, the one-paged
documents can be read aloud without difficulty within five to ten minutes each. We can
also take judicial notice of the fact that traffic is usually very minimal on Saturday
mornings, and was much less of a problem in 1979.
Respondents and Consuelo's decision not to make a prior arrangement with notary
public Jose Sebastian does not surprise us either. Respondents explain that, since the
telephone lines of Marikina were inefficient in the year 1979, they decided to take a
calculated gamble. It is not at all unreasonable to expect that Jose Sebastian would be
at his house on a Saturday, at around 8:00 a.m.
With respect to the choice of a notary public from Quezon City, we find the explanation
relative thereto satisfying. We quote:

Moreover, ARISTON, JR. disclosed that they could not have gone to
the notary public whom his aunt, CONSUELO, knew because she
did not want to go to said notary public since our cousins whom
she didn't like had access to him and she wanted to keep the
execution of the deeds confidential. Thus:
Q: And also you know for a fact that your auntie had a regular
Notary Public for the preparation and notarization of legal
documents in the name of Atty. Angeles, now
Congressman Angeles of Marikina, is that correct?
A: It depends on the frame of time. Yes and No. He was a regular
Notary Public, but way before that date. But after that, he
fall out of graces of my auntie. He was not anymore that
regular.
Q: How long before April 30 did he fall out of graces of your auntie,
year before that?
A: I don't specifically remember but what I do know is such
confidential document like this, we would not really go to
Angeles.
Q: Even for notarization purposes?
xxx xxx xxx
A: Even for notarization purposes, no sir. This confidential nature,no.
ATTY. FERRY:
Are you saying that your auntie trusted more Sebastian than
Angeles?
A: No. He is trusting her own experience about Atty. Angeles.
Q: Are you saying that she had sad experience with Atty. Angeles
in connection with the latter's performance of his duty as
Notary Public, as a lawyer?
A: That is what she told me.
Q: When was that?
A: She will tell me that regularly.
xxx xxx xxx
ATTY. FERRY:

26

Q: Mr. Gomez, you testified last April 6, 1989 that after the
execution of the two documents in question dated April
20, 1979, Atty. Angeles fell out of the graces of your auntie
and you added that as a consequence, your auntie did
not avail of the notarial services of Atty. Angeles when it
comes to confidential matters, is that correct?
A: Yes. After that particular execution of the Deed of Donation
Inter Vivos, Atty. Angeles especially if the documents are
confidential in nature.
Q: You used confidential matters, did your aunt spell out what
these confidential matters are?
A: This particular document, Deed of Donation was under the
category "confidential".
Q: But did you discuss this, the matter of notarizing this document
by Atty. Angeles with your auntie such that she made
known to you this falls under confidential matters?
A: Yes we did.
Q: So in other words, you intimated to your auntie that Atty.
Angeles would possibly notarized these documents?
A: No.
Q: How did it come about that your auntie gave that idea or
information that these documents should be notarized by
other notary public other than Angeles, because it is
confidential?
A: It came from her.

Q: She said that?

A: That's correct.
Q: And you were curious to know why she told you that?
A: No. I knew why she told me that. She said that Atty. Angeles. . . .
well, my cousins whom she didn't like have access to Atty.
Angeles. 92
The Court of Appeals had fully explained that the belated transfer of the properties
does not affect the validity or effects of the donations at all, nor dent the credibility of
respondents' factual assertions:
Per our perusal of the records, we find that the defendants were
able to sufficiently and substantially explain the reason for the
belated transfer of the pertinent properties, i.e., after the death of
CONSUELO. Thus, the testimony of MA. RITA revealed, insofar as the
real properties are concerned, the following:
"Q: Since you were already aware as you claim that as
early as when you went to the States in the company of
your auntie, Consuelo Gomez, these 2 parcels of land
together with the improvements consisting of a house
were transferred to you, you did not exert efforts after
your arrival from the States to effect the transfer of these
properties?
"A: No, I did not.
"Q: Why?
"A: Well, for delicadeza. My auntie was still alive. I am not
that aggressive. Tita Elo told me "akin na iyon" but I did
not transfer it in my name. "Siempre nakakahiya."

Q: Yes, did she tell you that?

ATTY. GUEVARRA:
That's what he said. "It came from her".

"Q: That was your reason for not effecting the transfer of
the properties in your name?

ATTY. FERRY:

"A: Yes, that was my reason.

My question is, how did it come about your auntie told you that
these two documents are of confidential matters?

"Q: Did you not know that the deed supposedly executed
by Consuelo Gomez was a donation inter vivos, meaning,
it takes effect during her lifetime?

A: Well, no problem. I said that it has to be notarized, she said more

or less, "ayaw ko kay Atty. Angeles".

"A: I do not know the legal term donation inter vivos. I

have also my sentiment. Tita Elo was very close to us but I

27

did not want to tell her: "Tita Elo, ibigay mo Na iyan SA

akin. Itransfer mo na sa pangalan ko." It is not my
character to be very aggressive."
In addition, Article 712 of the Civil Code provides:
"ART. 712. Ownership is acquired by occupation and by
intellectual creation.
"Ownership and other real rights over property are
acquired and transmitted by law, by donation, by testate
and intestate succession, and in consequence of certain
contracts, by tradition.

While the above provision seems to refer only to criminal cases, it has been pointed out
that in some jurisdictions, no distinction is made between civil and criminal actions as to
the quality of the burden of establishing a proposition by circumstantial evidence. In
such jurisdictions the rule is generally stated to be that the circumstances established
must not only be consistent with the proposition asserted but also inconsistent with any
other rational theory. 94
In all, what petitioner has succeeded in doing is to raise doubts in our minds. Again,
while such approach would succeed if carried out by the accused in criminal cases,
plaintiffs in civil cases need to do much more to overturn findings of fact and credibility
by the trial court, especially when the same had been affirmed by the Court of
Appeals.
Leniency in the weighing of petitioner's evidence could only produce a mere equipoise:

"They may also be acquired by means of prescription."

Clearly, the issuance of the titles in the names of the defendants is
not the mode by which they acquired ownership of the properties,
but rather the fact that the same were donated to them. The
circumstance that aforesaid properties were actually transferred in
the names of the donees only after the death of the donor,
although the deeds of donation were dated April 21, 1979, does
not by itself indicate that the said documents were antedated. 93
Petitioner seems to unduly foreclose the possibility one which experience tells us is not
a rare occurrence at all that donations are often resorted to in place of testamentary
dispositions, often for the purpose of tax avoidance. Such properties usually remain in
the donor's possession during his or her lifetime, despite the fact that the donations have
already taken effect. Nevertheless, the purpose of utilizing donation as a mode to
transfer property is not in issue here.
Finally, the allegations concerning the payment of Jose Sebastian in cash, the
suggestion that Consuelo should have also made a will, and the claim that all the
instrumental witnesses of the will are biased, are purely speculative.
In sum, all these circumstantial evidence presented by petitioner had failed to comply
with the strict requirements in using circumstantial evidence, for which Section 4, Rule
133 of the Rules of Court provides:
SEC. 4. Circumstantial evidence, when sufficient. Circumstantial
evidence is sufficient for conviction if:
(a) There is more than one circumstance;
(b) The facts from which the inferences are derived are proven;
and
(c) The combination of all the circumstances is such as to produce
a conviction beyond reasonable doubt.

When the scales shall stand upon an equipoise and there is nothing
in the evidence which shall incline it to one side or the other, the
court will find for the defendant.
Under this principle, the plaintiff must rely on the strength of his
evidence and not on the weaknesses of the defendant's
claim. Even if the evidence of the plaintiff may be stronger than
that of the defendant, there is no preponderance of evidence on
his side if such evidence is insufficient in itself to establish his cause
of action." 95 (Emphasis supplied.)
Petitioner's liability for damages
The last part of the trial court's decision, which was affirmed in toto by the Court of
Appeals, involves the award of damages in favor of Ariston, Jr. The trial court held
Augusto Gomez and the estate of the late Consuelo "jointly and solidarily liable" for
moral and exemplary damages, and attorney's fees.
The trial court held:
The records are clear, that plaintiff was so desperate for evidence
to support his charges, that he repeatedly subpoenaed the
defendants themselves; at the risk of presenting evidence
contradictory to his legal position and which actually happened,
when plaintiff subpoenaed Ariston Gomez Jr., Ariston Gomez Sr.,
and Maria Rita Gomez-Samson, as his witnesses.
All told, the court finds plaintiff was motivated not by a sincere
desire to insure the totality of the estate of Consuelo, but rather by
his desire to cause injury to defendants, and to appropriate for
himself and the rest of the Gomez brothers and nephews, other
than the donees, properties which were clearly validly disposed of
by Consuelo, via Donations Inter Vivos. 96

28

Our own examination of the records of the case, however, convinces us of the contrary.
Respondents never assailed the authenticity of petitioner's evidence, and merely
presented their own evidence to support their assertions. As previously stated,
petitioner's evidence had successfully given us doubts as to the authenticity of the
subject Deeds of Donation. While such doubts are not enough to discharge petitioner's
burden of proof, they are enough to convince us that petitioner's institution of the
present case was carried out with good faith. The subpoenas directed against
respondents merely demonstrate the zealous efforts of petitioner's counsel to represent
its client, which can neither be taken against the counsel, nor against its clients.
While, as regards the alleged intercalation of the Deeds of Donation on two blank
sheets of paper signed by Consuelo, the burden of proof lies with petitioner, the
opposite is true as regards the damages suffered by the respondents. Having failed to
discharge this burden to prove bad faith on the part of petitioner in instituting the case,
petitioner cannot be responsible therefor, and thus cannot be held liable for moral
damages.
This Court has also held that, in the absence of moral, temperate, liquidated or
compensatory damages, no exemplary damages can be granted, for exemplary
damages are allowed only in addition to any of the four kinds of damages
mentioned. 97
The attorney's fees should also be deleted, as it was supposed to be the consequence
of a clearly unfounded civil action or proceeding by the plaintiff. CaAIES
WHEREFORE, subject to the modification of the assailed Decision, the Petition is DENIED.
The Joint Decision of the Regional Trial Court of Pasig City in Civil CasesNo. 36089
and No. 36090, which was affirmed in toto by the Court of Appeals, is AFFIRMED with
MODIFICATION that the following portion be DELETED:

6- People v. Turco, 337 SCRA 714 (2000)

THIRD DIVISION
[G.R. No. 137757. August 14, 2000.]
THE PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs. RODEGELIO TURCO,
JR., a.k.a"TOTONG", accused-appellant.
The Solicitor General for plaintiff-appellee.
Gregorio dela Pea III for accused-appellant.
DECISION
MELO, J p:
Accused-appellant Rodegelio Turco, Jr. (a.k.a "Totong") was charged with the crime of
rape in Criminal Case No. 2349-272, Branch I of the Regional Trial Court of Basilan of the
9th Judicial Region, stationed in Isabela, Basilan, under the following Information:

SO ORDERED.

That on or about the 8th day of July,

1995, and within the jurisdiction of this
Honorable Court, viz., at Km. 6, Begang
Barangay, Municipality of Isabela,
Province of Basilan, Philippines, the
above-named accused, by the use of
force, threat and intimidation, did then
and there willfully, unlawfully and
feloniously grab the undersigned
complainant by her neck, cover her
mouth and forcibly make her lie down,
after which the said accused mounted
on top of her and removed her short
pant and panty. Thereafter, the said
accused, by the use of force, threat and
intimidation, inserted his penis into the
vagina of the undersigned complainant
and finally succeeded to have carnal
knowledge of her, against her will.

Ynares-Santiago, Austria-Martinez and Callejo, Sr., JJ., concur.

CONTRARY TO LAW.

3. That Augusto Gomez and the estate of the late Consuelo

Gomez, jointly and solidarily should pay to Ariston Gomez, Jr. the
following amounts:
Moral damages of P1,000,000.00;
Exemplary damages of P250,000.00
Attorney's fees of P200,000.00
And costs of suit; with legal interest on all the amounts, except on
costs and attorney's fees, commencing from February 15, 1980,
until fully paid.

||| (Gomez v. Gomez-Samson, G.R. No. 156284, [February 6, 2007], 543 PHIL 436-483)

(p. 6, Rollo.)

29

At his arraignment on November 8, 1995, accused-appellant entered a plea of not

guilty, after which trial ensued.

Q. Did the person calling your name

answer you?

The prosecution's version of the generative facts, as gathered from the testimony of its
witnesses Alejandra Tabada, mother of the victim; PO3 Celso Y. Tan Sanchez, the
police officer who investigated the case; Orlando Pioquinto, brother-in-law of the victim;
Escelea Tabada, the 13-year-old victim; and Felicitas delos Santos Timorata, the
medical record clerk who used to be the medical officer under Dr. Rimberto
Sanggalang, the physician who physically examined the victim after the incident is
abstracted in the Appellee's Brief in this wise:

A I heard, sir, "me Totong".

Q. When you say the person who called
your name "Lea" was "Totong"
you are referring to whom?
A. Rodegelio, sir.

Escelea Tabada and appellant

Rodegelio Turco were neighbors in lower
Begang, Isabela, Basilan, their houses
being only about sixty (60) meters apart
(p. 6 and p. 8, t.s.n.; August 19, 1996).
Escelea was then staying with her father,
Alejandro and her deaf grandmother,
Perseveranda (p. 9, id). She was twelve
(12) years and six (6) months old at the
time of incident, having been born on
December 3, 1982 (p. 3, id).

(p. 15, id.; Italics supplied)

The nightmare of Escelea began in the

evening of July 1995. At around seven
o'clock (7:00 p.m.) in the evening,
Escelea, after (pp. 11-12, id) [sic]. She
was accompanied by a certain Cory
Macapili, the granddaughter of her
neighbor, Leonora Cabase (p. 13, id).

Appellant bid Escelea to walk. When

they reached a grassy part, near the pig
pen which was about twelve (12) meters
away from the victim's house, appellant
lost no time in laying the victim on the
grass, laid on top of the victim and took
off her shortpants and panty (pp. 1719, id.). Escelea tried to resist by moving
her body but to noavail. Appellant
succeeded in pursuing his evil design-by
forcibly inserting his penis inside Escelea's
private part. The victim felt terrible pain
(p. 20, id.). Still dissatisfied, after
consummating the act, appellant kissed
and held the victim's breast. Thereafter,
appellant threatened her that he will kill
her if she reports the incident to
anybody, thus:

Cory left upon reaching Escelea's home.

Escelea went upstairs to join her
grandmother who was already sleeping
in the room. About to enter the said
room, Escelea heard a call from outside.
She recognized the voice and when she
asked who was it, the party introduced
himself as the appellant, viz:
Q. After you heard your named was
mentioned, what did you say if
any?
A. I answered: "Who is that?"

She recognized appellant Turco

immediately as she had known him for
four (4) years and appellant is her
second cousin (p. 34, id). Unaware of
the danger that was about to befall her,
Escelea forthwith opened the door.
Appellant Turco, with the use of towel,
covered Escelea's face. Appellant,
aside from covering the victim's mouth,
even placed his right hand on the
latter's neck.

"He threatened me, that if you

will reveal the incident to
anybody I will kill you.
(p. 21, id; Italics supplied)

30

Finally, after having satisfied his lust,

appellant hurriedly went home. Escelea,
on the other hand, upon reaching
home, discovered that her shortpants
and panty were filled with blood (p.
23, id.). For almost ten (10) days, she just
kept to herself the harrowing experience
until July 18, 1995 when she was able to
muster enough courage to tell her
brother-in-law, Orlando Pioquinto, about
the said incident. Orlando in turn
informed Alejandro, the victim's father,
about the rape of his daughter.
Alejandro did not waste time and
immediately asked Escelea to see a
doctor for medical examination (p.
27,id.). TcAECH
Escelea was accompanied by her sister
Clairlyn Pioquinto to the Provincial
Hospital. She was examined by Dr.
Rimberto Sanggalang. After the
issuance of the medical certificate, they
went to Isabela Municipal Station and
filed Escelea's complaint against
appellant (pp. 30-33, id).
(pp. 97-100, Rollo.)
The defense presented Leonora Cabase, neighbor of accused-appellant; her
granddaughter Corazon Macapili, and accused-appellant himself. Accused-appellant
denied the charge. The defense that the victim and him were sweethearts was also
advanced. Leonora Cabase mentioned this in her direct testimony.
In reaching a moral certainty of guilt, the trial court held:
While the accused denies the charge of
rape, his witness, Mrs. Leonora Cabase
was trying to project that the
complainant Escelea Tabada and the
accused Rodegelio Turco, Jr. are
sweethearts. In the case of People vs.
Casil, 241 SCRA 285, the Supreme Court
agrees with the trial court that the
"sweetheart story" was a mere
concoction of appellant in order to
exculpate himself from criminal liability.
The claim of voluntary love affair is an
affirmative defense, the allegation of a
love affair needed proof. Nowhere in

the record of the case that the same

was substantiated, though mentioned
by Mrs. Leonora Cabase. The accused
and/or his witnesses must present any
token of the alleged relationship like
love notes, mementos or pictures and
the like. Such bare allegation of the
defense, not to mention its utter lack of
proof, is incredulous. It is hard to
understand how such a relationship
could exculpate a person from the rape
of a terrified young child barely a little
over the age of twelve (12) years old.
Indeed, a love relationship, even if true,
will not necessarily rule out force (People
vs. Sergio Betonio,G.R. No. 119165,
September 26, 1997, Case Digests of
Supreme Court Decisions, Vol. 36, No. 3,
September 1-29, 1997, pp. 695-697).
There are guiding principles in rape
cases as cited in People vs. Victor
Abrecinoz, G.R. No. 122474, October 17,
1997, Case Digests of Supreme Court
Decisions, Vol. 37, No. 1, October 2-31,
1997, pp. 157-160, and they are: (1) an
accusation for rape can be made with
facility, it is difficult to prove but more
difficult for the person accused, though
innocent, to disprove it; (2) in view of the
intrinsic nature of the crime of rape
where two persons are usually involved,
the testimony of the complainant must
be scrutinized with extreme caution; and
(3) the evidence for the prosecution
must stand or fall on its own merit, and
cannot be allowed to draw strength
from the weakness of the evidence for
the defense. Thus, the credibility of the
complainant is a paramount
importance, and if her testimony proves
credible, the accused may be
convicted on the basis thereof.
It should be noted that the complainant
and the accused are second degree
cousin or they are sixth civil degree
relatives. The mother of the accused is a
first degree cousin of the father of the
complainant. In the culture of the

31

Filipino family on extended family, the

relationship between the complainant
and the accused being only second
degree cousin, it becomes the duty of
an older relative (the accused) to
protect and care for a younger relative
(the complainant). It is very hard to
understand or comprehend why a
cousin files a case of rape against her
cousin, unless it is true. There
is no showing that there was compelling
motive why the case be filed against
the accused, except that the rape really
happened.
xxx xxx xxx
It is noted that there was nounderlying
reason why the complainant and/or her
father would bring an action against the
accused, except that the accused had
raped Escelea Tabada on July 8, 1995,
at about 7:00 o'clock in the evening. If it
were not true that she was raped by the
accused, why would she expose herself
to an embarrassment and traumatic
experience connected with the
litigation of this rape case. We are
aware of the Filipino culture especially
on virginity. We likened it as a mirror,
once dropped and broken, it
can no longer be pieced together . . .
not ever. This is true among the Filipino
folks that the complainant belonged,
poor and helpless and everything is
entrusted to God. The complainant is a
young girl, a little over twelve (12) years
old and almost illiterate, having
attended school up to Grade III only. So
poor that her family cannot even buy
the cheapest television set and she has
to go to a house of a neighbor for the
meager joy of seeing a television show .
. . and expose herself to the danger of
the dark night. All said, it is very difficult
to be poor. Going to the court is a shout
for help . . . let us try to hear it.
xxx xxx xxx

WHEREFORE, under the above

circumstances and evaluation, this court
finds the accused "GUILTY" of rape and
sentences him to suffer the penalty
of reclusion perpetuaand to indemnify
the complainant the amount of Fifty
Thousand Pesos (P50,000.00) for moral
damages without subsidiary
imprisonment in case of insolvency.
xxx xxx xxx
(pp. 33-37, Rollo.)
In accused-appellant's brief, he assigns the following alleged errors:
I
THAT THE HONORABLE COURT A
QUO SERIOUSLY ERRED IN FINDING THE
ACCUSED GUILTY OF RAPE BASED ON
THE TESTIMONIES OF THE COMPLAINANT
ESCELEA TABADA AND HER WITNESS.
II
THAT THE HONORABLE COURT A
QUO SERIOUSLY ERRED IN RULING THAT
THE PROSECUTION, BASED ON THE
AFFIDAVITS AND ORAL TESTIMONIES OF
THE COMPLAINANT AND ITS WITNESSES
WAS ABLE TO PROVED [sic] BEYOND
REASONABLE DOUBT THAT THE ACCUSED
COMMITTED THE CRIME OF RAPE
AGAINST THE COMPLAINANT.
III
THAT THE HONORABLE COURT A
QUO SERIOUSLY ERRED IN SENTENCING
THE ACCUSED TO SUFFER THE PENALTY
OF RECLUSION PERPETUA AND TO
INDEMNIFY THE COMPLAINANT THE
AMOUNT OF P50,000.00 REPRESENTING
MORAL DAMAGES BASED ON THE
EVIDENCES PRESENTED BY THE
PROSECUTION.
(p. 101, Rollo.)

32

He particularly argues that his conviction is not supported by proof beyond reasonable
doubt considering that other than the written statement of the complainant before the
Police Station of Isabela and before the Clerk of Court of the Municipal Trial Court, and
her testimony during direct examination, no other evidence was presented to
conclusively prove that there was ever rape at all; that she only presumed that it was
accused-appellant who attacked her since she admitted that immediately upon
opening the door, the perpetrator hastily covered her face with a towel; that nothing in
her testimony clearly and convincingly shows that she was able to identify accusedappellant as the perpetrator; that complainant implicated accused-appellant only
because her father forced her to do so; and lastly, that noactual proof was presented
that the rape of the complainant actually happened considering that although a
medical certificate was presented, the medico-legal officer who prepared the same
was not presented in court to explain the same.
We agree with the trial court.
As aptly recalled by the trial court, there are three guiding principles in the review of
rape cases, to wit: (1) an accusation of rape can be made with facility; it is difficult to
prove but more difficult for the person accused, although innocent, to disprove; (2) in
view of the intrinsic nature of the crime of rape where only two persons are usually
involved, the testimony of the complainant is scrutinized with extreme caution; and (3)
the evidence for the prosecution stands or falls on its own merits and cannot be allowed
to draw strength from the weakness of the defense (People vs. Gallo, 284 SCRA 590
[1998];People vs. Balmoria, 287 SCRA 687 [1998]; People vs. Auxtero, 289 SCRA 75
[1998]; People vs. Sta. Ana, 291 SCRA 188 [1998]).

Accordingly, the primordial consideration in a determination concerning the crime of

rape is the credibility of complainant's testimony.
The trial court described complainant as "a young girl, a little over twelve (12) years old
and almost illiterate, having attended school up to Grade III only. So poor that her
family cannot even buy the cheapest television set and she has to go to a house of a
neighbor for the meager joy of seeing a television show . . . and exposes herself to the
danger of the dark night." But verily, age, youth, and poverty are not guarantees of
credibility. Hence, thorough scrutiny must be made by the Court.
Complainant narrated the incident in this wise:
Q While you went upstairs and about to
enter the room of your
grandmother, did you hear
anything?
A Yes, sir.
Q What was that?

A I heard a call, sir.

Q How was the call made?
A It is just by saying: "Lea".SaHTCE
Q After you heard your name was
mentioned, what did you say if
any?
A I answered: "Who is that?"
Q Did the person calling your name
answer you?
A I heard, sir, "me Totong".
Q When you say the person who called
your name "Lea" was "Totong",
you are referring to whom?
A Rodegelio, sir.
Q When you say "Rodegelio", you are
referring to Rodegelio Turco,
Jr., the accused in this case?
A Yes, sir.
Q After the person calling your name
"Lea" identified himself as
"Totong", what did you do?
A I opened the door, sir.
Q And when you opened the door,
what happened next?
A Totong with the use of towel covered
my face, sir.
Q Aside from covering your face with a
towel, what else did he do?
A He covered my mouth, sir.
Q Aside from covering your mouth, what
else did he do?

33

A He placed his right hand on my neck,

sir.
Q Aside from placing his right hand . . .
when he placed his right hand
on your neck, where was he?
Was he infront or behind?

Q According to you, from your house

you were brought by the
accused to a place which you
do not know?
A Yes, Your Honor.
Q What place?

A He was at my back, sir.

A Pig pen, Your Honor.
Q After placing his right hand on your
neck behind you, what did
"Totong" do next with that
position?
A He covered my mouth, sir.
Q After covering your mouth and face,
what did he do next?

Q Do you know the owner of that pig

pen?
A Our pig pen, Your Honor.
Q Who owned that pig pen?
A My father, Your Honor.

A He told me to walk, sir.

Q How far is that pig pen to your house?

Q Where did he bring you?

A (From this witness stand to that road

outside of this building).

A I don't know exactly where he brought

me, sir.
Q But you know very well that he
brought you to a certain
place?
A I don't know exactly the place where
he brought me, sir.

COURT:
It is about 12 meters. Alright, continue.
PROSECUTOR M.L. GENERALAO:
(Continuing)

A Yes, sir.

Q You stated in answer to the question

of the Honorable Court that
you were brought to the pig
pen or the place where you
were sexually abused, were
you place inside or outside?

Q Do you have a copra kiln?

ATTY. G.V. DELA PEA III:

ATTY. G.V. DELA PEA III:

Leading, Your Honor.

Q Is it far from your house where you

were forcibly taken?

The witness already answered that she

does not know where she was
brought, leading, Your Honor.
COURT: (Questioning the witness)

PROSECUTOR M.L. GENERALAO:

I will withdraw.
Q Will you please explain to the Court
what particular place of the

34

pig pen that you were brought

by the accused?
A Inside the grasses, sir.
Q When you were already inside the
grasses near this pig pen, what
did the accused do to you?
A He put me down, sir.
Q When you were already down on the
ground, what did the accused
do next?
A He mounted on me, sir.
Q And when the accused was already
on top of you, what did he do
next?

A He put his private part inside my

private part, sir.
Q When the accused was on top of you
and he forcibly abused you,
what did you do?
A I tried to move my body, sir.
Q While you were trying to move your
body and while the accused
was on top of you, what did
the accused do?
A He tried to insert his private part to my
private part, sir.
Q And was he able to insert his private
part?
A Yes, sir.

A He molested me, sir.

Q Before he molested you, did he
remove anything from your
body?

Q What did you feel when his private

part was already inside your
private part?
A I felt pain, sir.

A Yes, sir.
Q What?
A My shortpants and panty, sir.
Q You stated that the accused while on
top of you removed your pants
and panty, did he totally
remove it from your body?
A Yes, sir.
Q After removing your shortpants and
panty, what else did the
accused do?
A He abused me, sir.
Q You said that he abused you, how did
he abuse you?

Q Will you please explain why you felt

when the private part of the
accused was already inside
your private part?
A I felt pain when he already finished, sir.
Q By the way, before July 8, 1995, were
you had been raped? Will you
please tell us whether you
have already experienced or
you have already your
menstruation at that time?
A No, sir.
Q Now you stated to the Honorable
Court . . . after the accused
had sexually abused you and
you said you felt pains after he
consummated the sexual act,

35

after that what did he do next

after consummating the act?
A After consummating his desire, he
raised my panty and
shortpants then he kissed me
and hold my nipple, sir.
Q After the accused had raised your
shortpants and panty,
embraced you, kissed you and
hold your breast, did he tell you
anything?
A He threatened me, "that if you will
reveal the incident to anybody
I will kill you."
Q In what dialect?
A In Chavacano, sir.
Q After the accused embraced you,
kissed you and hold your nipple
and threatened you in
Chavacano dialect, what
happened next after that?
A No more, sir. aSTHDc
(tsn, Aug. 19, 1996, pp. 14-22.)
On cross-examination, the victim did display some apparent confusion when the
defense counsel asked her about the events that transpired before the ill-fated July 8,
1995. The query prompted her to narrate the incident prior to said date when she also
watched television at the home of Leonora Cabase, and that when she arrived home,
accused-appellant came and called her "Lea" and when she asked who was it, he
answered "so Totong". When she asked what he wanted, he said he wanted to borrow
a guitar. She said that she could not lend him the guitar since her father was not yet
around. He insisted but to no avail, and hence he just went home. She went to sleep
afterwards. On re-direct examination, she clarified that when accused-appellant came
to borrow the guitar on July 8, 1995, it was about 5:30 o'clock in the afternoon. Lastly,
she said that the incident of the borrowing of the guitar and the incident that transpired
at 7 o'clock in the evening on July 8, 1995 were separate incidents.
Significantly, three things could be perceived: complainant's youth, her apparent
confusion concerning the events that transpired, and her fear of both accusedappellant and her father.

At the outset, it should be remembered that the declarations on the witness stand of
rape victims who are young and immature deserve full credence (People vs. Bernaldez,
294 SCRA 317 [1998]). Succinctly, when the offended parties are young and immature
girls from the ages of twelve to sixteen, courts are inclined to lend credence to their
version of what transpired, considering not only their relative vulnerability but also the
shame and embarrassment to which they would be exposed by court trial if the matter
about which they testified were not true (People vs. Clopino, 290 SCRA 432 [1998]). In
addition, we take cognizance of the trial court's observation on the segment of the
Filipino society to which the victim belongs almost illiterate, having attended school
up to the third grade only, and so poor that she had to go to a neighbor's house to
watch television, yet one who values her virginity which like a "mirror, once dropped
and broken . . . can no longer be pieced together not ever," this being "true among the
Filipino folks [to which] complainant belonged, poor and helpless everything is entrusted
to God" (p. 35, Rollo).
The victim's relatively low level of intelligence explains the lapses in her testimony, having
intermingled two incidents. Nonetheless, it can easily be gathered from the record that
the defense counsel may have contributed to this confusion when he asked the victim
what transpired "before" the incident (tsn, August 19, 1996, p. 37). Minor lapses in a
witness' testimony should be expected when a person recounts details of an experience
so humiliating and so painful to recall as rape (People vs. Gementiza, 285 SCRA 478
[1998]). Rape, as a harrowing experience, is usually not remembered in detail. For, such
an offense is not something which enhances one's life experience as to be worth
recalling or reliving but, rather, something which causes deep psychological wounds
and casts a stigma upon the victim for the rest of her life, which her conscious or
subconscious mind would prefer to forget (People vs. Garcia, 281 SCRA 463 [1997]).
These lapses do not detract from the overwhelming testimony of a prosecution witness
positively identifying the malefactor (People vs. Baccay, 284 SCRA 296 [1998]). Further,
the testimony of a witness must be considered and calibrated in its entirety and not by
truncated portions thereof or isolated passages therein (People vs. Natan, 193 SCRA 355
[1991]).
The Court finds that the victim had nomotive to falsely testify against accusedappellant. Her testimony deserves the credence accorded thereto by the trial court
(People vs. Luzorata, 286 SCRA 487 [1998]). Pertinently, no woman, especially one of
tender age, would concoct a story of defloration, allow an examination of her private
parts, and thereafter pervert herself by being subjected to a public trial if she was not
motivated solely by the desire to have the culprit apprehended and punished (People
vs. Taneo, 284 SCRA 251 [1998]).
Another point to consider is the blood relationship between accused-appellant and the
victim. At this juncture, we reiterate the trial court's observation thereon the mother of
accused-appellant being a first degree cousin of the victim's father, that makes the
victim and accused-appellant second degree cousins or sixth civil degree relatives.
Filipino culture, particularly in the provinces, looks at the extended family as closely-knit
and recognizes the obligation of an older relative to protect and take care of a
younger one. On the contrary, in the instant case, the victim initiated the prosecution of
her cousin. If the charge were not true, it is indeed difficult to understand why the victim
would charge her own cousin as the malefactor. Too, she having no compelling motive

36

to file said case against accused-appellant, the conclusion that the rape really
happened is logically reinforced.

Q You mean to say that you never knew

the complainant before you
were arrested?
A I do not know her, sir.

As regards the initial delay of the victim in reporting the rape incident, suffice it to state
that the delay and initial reluctance of a rape victim to make public the assault on her
virtue is not uncommon (People vs. Gallo, supra). In the case at bar, the victim's fear of
her father who had moral ascendancy over her, was explicit. She testified that she did
not disclose the incident to her father because of fear both of her father as well as of
accused-appellant (tsn, August 19, 1996, pp. 23-24). Such reaction is typical of a twelveyear-old girl and only strengthens her credibility.
The issue of credibility of the victim having been settled, there are a few points
presented by the defense that must be passed upon:
1. Other than their blood relationship, was there an intimate relationship between
accused-appellant and the victim? The theory initially advanced by the defense in the
proceedings before the court a quo is the "sweetheart theory". In this regard, we agree
with the trial court that the "sweetheart story" was a mere concoction of accusedappellant in order to exculpate himself from criminal liability. In People vs.
Venerable (290 SCRA 15 [1998]), we held that the sweetheart theory of the accused
was unavailing and self-serving where he failed to introduce love letters, gifts, and the
like to attest to his alleged amorous affair with the victim. Hence, the defense cannot
just present testimonial evidence in support of the theory that he and the victim were
sweethearts. Independent proof is necessary, such as tokens, mementos, and
photographs. It is likewise remarkable, a confession possibly of the bankruptcy of this
theory that accused-appellant has not insisted on this defense in his brief, seemingly
abandoning this line.
We, therefore, conclude that whatever familiarity and supposed closeness there was
between accused-appellant and the victim, is explained not by an intimate relationship
but by their blood relationship. Hence, it is noticeable that on the day of the incident,
when accused-appellant called upon the victim and the latter asked who he was, the
victim knew right away that her caller was accused-appellant when the latter replied "Si
Totong".
Accused-appellant, in his direct testimony, tried to deny any blood relation with the
victim Escelea Tabada and touched on the apparent friendship between them, as
follows:
Q You mentioned earlier that you know
the complainant, why do you
know the complainant Escelea
Tabada?
A I only know her when I was already in
jail, sir.

COURT: (Questioning the witness)

Q Why, are you not related to the
Tabadas?
A No, Your Honor.
ATTY. G.V. DELA PEA III: (Continuing)
Q Have you ever seen the complainant
in Begang?
A The complainant is at Begang, sir.
Q And you mentioned that you were
not related with the
complainant, Mr. Witness?
A Yes, sir, we are only close.
Q So, in other words, Mr. Witness, you
and the complainant Escelea
Tabada were already friends?
A Yes, sir.
(tsn, June 16, 1998, pp. 42-43.)
However, on cross-examination, he notably crumbled:
Q Now, you stated in your direct
examination that you are not
related to the Tabadas in San
Antonio Begang, Isabela,
Basilan, is that right?
A Yes, sir, we are only close.
Q Is it not a fact Mr. Witness that your
mother is the first cousin of the
father of Escelea Tabada?
A They are cousins, sir.

37

Q So, indeed you are related to the

Tabadas?
A Yes, sir.
Q So, when you said that you are not
related to the Tabadas, you
were not telling the truth?
A Yes, sir.
(ibid., p. 51.)
2. Accused-appellant argues that noactual proof was presented that the rape actually
happened since the medico-legal officer who prepared the medical certificate was
not presented in court to explain the same. cCDAHE
In People vs. Bernaldez (supra), the court a
quo erred in giving weight to the medical certificate
issued by the examining physician despite the failure of
the latter to testify. While the certificate could be
admitted as an exception to the hearsay rule since
entries in official records (under Section 44, Rule 130,
Rules of Court) constitute exceptions to the hearsay
evidence rule, since it involved an opinion of one who
must first be established as an expert witness, it could not
be given weight or credit unless the doctor who issued it
is presented in court to show his qualifications. We place
emphasis on the distinction between admissibility of
evidence and the probative value thereof. Evidence is
admissible when it is relevant to the issue and is not
excluded by the law or the rules (Section 3, Rule 128,
Rules of Court) or is competent. Since admissibility of
evidence is determined by its relevance and
competence, admissibility is, therefore, an affair of logic
and law. On the other hand, the weight to be given to
such evidence, once admitted, depends on judicial
evaluation within the guidelines provided in Rule 133 and
the jurisprudence laid down by the Court. Thus, while
evidence may be admissible, it may be entitled to little
orno weight at all. Conversely, evidence which may
have evidentiary weight may be inadmissible because a
special rule forbids its reception (Regalado,Remedial
Law Compendium, Vol. II, 1998 ed., p. 550).
Withal, although the medical certificate is an exception to the hearsay rule, hence
admissible as evidence, it has very little probative value due to the absence of the
examining physician. Nevertheless, it cannot be said that the prosecution relied solely
on the medical certificate (stating that there was "[h]ymen rupture, secondary to penile

insertion" as well as "foul-smelling discharges." The diagnosis was "[r]uptured hymen

secondary to rape" [p. 68, Record]). In fact, reliance was made on the testimony of the
victim herself which, standing alone even without medical examination, is sufficient to
convict (People vs. Topaguen, 369 SCRA 601 [1997]). It is well-settled that a medical
examination is not indispensable in the prosecution of rape (People vs. Lacaba, G.R. No.
130591, November 17, 1999; People vs. Salazar, 258 SCRA 55 [1996]; People vs.
Venerable, supra). The absence of medical findings by a medico-legal officer does not
disprove the occurrence of rape (People vs. Taneo, supra). It is enough that the
evidence on hand convinces the court that conviction is proper (People vs. Auxtero,
supra). In the instant case, the victim's testimony alone is credible and sufficient to
convict.
As a final observation, it must be said that the amount awarded by the trial court in
favor of Escelea Tabada as indemnification (P50,000.00 for moral damages) for the rape
is incomplete based on established jurisprudence and must be modified. InPeople vs.
Betonio (279 SCRA 532 [1977]), we held that the award of P50,000.00 to the victim as
indemnity for rape not committed or qualified by any of the circumstances under the
Death Penalty Law, needs noproof other than the conviction of the accused for the
raped proved. This is different from the P50,000.00 awarded as moral damages which
also needs nopleading or proof as basis thereof (People vs. Prades, 293 SCRA 411
[1998]).
WHEREFORE, the appealed decision is hereby AFFIRMED, with the MODIFICATION that
accused-appellant Rodegelio Turco, Jr. a.k.a "Totong" is ordered to indemnify the
offended party, Escelea Tabada, in the amount of Fifty Thousand (P50,000.00) Pesos in
addition to the sum of P50,000.00 already awarded by the trial court as moral
damages. DEcTIS
SO ORDERED.
Vitug, Panganiban, Purisima, andGonzaga-Reyes, JJ., concur.
||| (People v. Turco, Jr., G.R. No. 137757, [August 14, 2000], 392 PHIL 498-517)

7- State of Missouri v. William Arthur Bull, 339 S.W. 2d 783 Mo. 1960, 14 November 1960

339 S.W.2d 783 (1960)

STATE of Missouri, Respondent, v. William Arthur BALL, Appellant.
No. 47575.
Supreme Court of Missouri, En Banc.
November 14, 1960.

38

Dewey S. Godfrey, St. Louis, for appellant.

*784 John M. Dalton, Atty. Gen., Richard R. Nacy, Jr., Sp. Asst. Atty. Gen., for respondent.
BARRETT, Commissioner.
A jury has found William Arthur Ball guilty of robbery in the first degree; the jury also
found prior felony convictions and, therefore, a mandatory sentence of life
imprisonment was imposed. V.A.M.S. 560.120, 560.135, 556.280.
The facts, briefly, as the jury could find them were that about 2:30 in the afternoon of
October 15, 1958, two colored men, one of them tall and the other short, entered the
Krekeler Jewelry Store at 1651 South 39th Street. The taller man spent ten or fifteen
minutes selecting and buying a cigarette lighter, he also talked about buying and
looked at watches and rings. As the taller man looked at jewelry and made his
purchase the shorter man looked in the cases and moved about in the store. Later in
the day, about 5:50, as John Krekeler was placing rings and watches in the safe
preparatory to closing the store two men entered, one of them tall and the other short,
and Krekeler immediately recognized them as the two men who had been in the store
at 2:30, especially the taller man. He recognized the taller man's narrow-brimmed, tall
hat, brown jacket, gray stirt and particularly a scar on his face. The shorter man started
to walk behind the counter and as Krekeler intercepted him he "drew a long barreled
blue .38 and stuck it in my face." Both men followed Krekeler, the shorter man with the
gun in "his back," directing him to the watch repair department and finally into the rest
room in the rear of the store. He was told not to turn around and stood facing the wall.
He could hear jewelry being dumped into a bag and the "jingle" of the cash register.
The two men left Krekeler in the rest room and after hearing the door slam he called the
police. The two men had taken watches and rings of the stipulated value of $4,455.21
and $140 in cash from the register. Krekeler identified the appellant from pictures, and
three weeks later, after his capture, in a hospital and upon the trial positively identified
him as the taller of the two holdup men.
In his motion for a new trial one of the claims is that there was no direct evidence of an
injury or any evidence to show that Krekeler was put "in fear of some immediate injury to
his person," one of the essential elements of robbery in the first degree. V.A.M.S.
560.120. Krekeler did not affirmatively testify that he was in fear but he could well
apprehend injury if he did not comply with their requests and in the circumstances the
jury could reasonably find "the fear" contemplated in the statute. 77 C.J.S. Robbery 16,
p. 459; State v. Thompson, Mo., 299 S.W.2d 468, 474. The element of fear being a
reasonable inference from the evidence, the facts and circumstances support and
warrant the finding of robbery in the first degree. State v. Eckenfels, Mo.,316 S.W.2d 532.
Another of the appellant's sufficiently preserved claims in his motion for a new trial
(V.A.M.S. 547.030; Supreme Court Rule 27.20, V.A.M.R.) has to do with his arrest and the
testimony of the two arresting officers. On November 4, 1958, about three weeks after
the robbery, police officers in a squad car saw Ball walking on Easton Avenue. The
officers stopped him, told him that they were officers and that he was under arrest. As
officer Powell faced and searched Ball officer Ballard "holstered" his gun and attempted

"to cuff" him. Ball shoved Powell over and ran down Easton Avenue, the officers ran
after him, Powell being closest. Powell yelled, "Halt Ball, you're under arrest," and fired
one shot high in the air but Ball continued running and Powell fired four more shots, two
at his legs, one at his buttocks, and he finally fell from a bullet in his back. It is claimed
that this evidence was not material or relevant, that it was too remote from the date of
the robbery to indicate a consciousness of guilt and since it was of course prejuducial
*785 that he is entitled to a new trial. But unexplained flight and resisting arrest even
thirty days after the supposed commission of a crime is a relevant circumstance (State v.
Duncan, 336 Mo. 600, 611, 80 S.W.2d 147, 153), the remoteness of the flight goes to the
weight of the evidence rather than to its admissibility. 20 Am.Jur., Sec. 293, p. 274.
When Ball was finally subdued and arrested the officers took from his person and
impounded a brown felt hat, "a brownish" windbreaker type jacket, trousers, gray shirt
and shoesthese were exhibits one and two, Ball admitted that they belonged to him
although his evidence tended to show that he had purchased the jacket after October
15. In identifying Ball, in addition to the scar on his face, Krekeler was impressed with and
remembered the brown ensemble, particularly the "tall brown hat." These items were of
course relevant and admissible in evidence and there is no objection to them. State v.
Johnson, Mo., 286 S.W.2d 787, 792. The appellant objects, however, in his motion for a
new trial that a police officer was permitted to testify that $258.02 in currency and two
pennies were taken from his person. It is said that the introduction of these exhibits was
"immaterial and irrelevant, neither tended to prove nor disprove any of the issues
involved in this case; that said money as seized at the time of the arrest was neither
identified by Mr. Krekeler nor by any other person as the money which was allegedly
stolen from the A. L. Krekeler & Sons Jewelry Company on the 15th day of October,
1958; that said evidence was considered by this jury to the prejudice of this defendant
convincingly."
The circumstances in which this evidence was introduced were these: After the clothes
were identified and introduced as exhibits one and two the prosecuting attorney
inquired of officer Powell, "Did you also seize his personal effects?" Defense counsel
immediately objected to any testimony relating to personal effects found on the
defendant "at the time." The court overruled the objection and state's counsel inquired,
"Well Officer, what personal effects were seized?" Defense counsel, evidently knowing
and anticipating, objected "to any testimony relevant (sic) to any personal effects
seized upon this Defendant at the time he was arrested by reason of the fact it is
immaterial and irrelevant and tends to neither prove nor disprove any facts involved
and ask that the jury be discharged and a mistrial be declared." The court overruled the
objection and the officer said, "Ball's personal effects consisted of two hundred and fifty
eight dollars and two cents in cash, with the denominations of the bill(s), two one
hundred dollar bills, a twentytwo twenties, a ten, a five, three ones and two pennies. He
had a ladies ring and a man's wristwatch. He had a crusifixion along with a small pen
knife and a black leather wallet. Maybe one or two other personal articles." All of these
items were then marked as exhibits, from three to nine, offered in evidence and
described by the officer, exhibit three being the bills and pennies comprising the
$258.02. According to the officer Mr. Krekeler was unable to identify any of these articles
or the money as having come from the jewelry store robbery and there is no objection
in the motion to any of the items other than the money and some of them were
obviously not prejudicial, for example the keys, a small penknife and wallet.

39

Unlike the roll of dimes in State v. Hampton, Mo., 275 S.W.2d 356, the testimony as to the
$258.02 was not offered in proof of the substantive fact of the crime. In that case the
five-dollar roll of dimes wrapped in a roll of green paper was found on the defendant
the same day of the burglary and while the fact was a circumstance admissible in
evidence it was held to not constitute substantive evidence inconsistent with the
hypothesis of the defendant's innocence of burglary. In State v. Gerberding, Mo., 272
S.W.2d 230, there was no timely or proper objection to the proof but $4,000 was taken in
a robbery and *786 the appellant had $920 in currency in his topcoat pocket when
captured the day of the robbery. The proof of the money here was evidently on the
theory that Ball did not have or was not likely to have such a sum of money on his
person prior to the commission of the offense. 1 Wharton, Criminal Evidence, Sec. 204, p.
410. As to this the facts were that he had been out of the penitentiary about eight
months and the inference the state would draw is that he had no visible means of
support and no employment and could not possibly have $258.02 except from
robberies. Of course, there was no such proof and Ball claimed that he had worked
intermittently for a custodian or janitor of an apartment house and that he had won the
$258.02 in a series of crap games at a named place. Not only was Krekeler unable to
identify the money or any of the items on Ball's person as having come from the jewelry
store so that in fact they were not admissible in evidence (annotation 3 A.L.R. 1213), the
charge here was that Ball and his accomplice took jewelry of the value of $4,455.21 and
$140 in cash from the cash register. There was no proof as to the denomination of the
money in the cash register, it was simply a total of $140. Here nineteen days had
elapsed, there was no proof that Ball had suddenly come into possession of the $258.02
(annotation 123 A.L.R. 119) and in all these circumstances "The mere possession of a
quantity of money is in itself no indication that the possessor was the taker of money
charged as taken, because in general all money of the same denomination and
material is alike, and the hypothesis that the money found is the same as the money
taken is too forced and extraordinary to be receivable." 1 Wigmore, Evidence, Sec. 154,
p. 601. In the absence of proof or of a fair inference from the record that the money in
Ball's possession at the time of his arrest came from or had some connection with the
robbery and in the absence of a plain showing of his impecuniousness before the
robbery and his sudden affluence (State v. Garrett, 285 Mo. 279, 226 S.W. 4), the
evidence was not in fact relevant and in the circumstances was obviously prejudicial for
if it did not tend to prove the offense for which the appellant was on trial the jury may
have inferred that he was guilty of another robbery. State v. Bray, Mo. App., 278 S.W.2d
49; People v. Orloff, 65 Cal. App. 2d 614, 620-621, 151 P.2d 288; annotation 123 A.L.R.
loc. cit. 132-134 and compare the facts and circumstances in State v. Garrett, supra.
The admission of the evidence in the circumstances of this record infringed the right to a
fair trial and for that reason the judgment is reversed and the cause remanded.
PER CURIAM.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court en banc.
WESTHUES, EAGER, STORCKMAN and HOLLINGSWORTH, JJ., concur.
HYDE, C. J., and LEEDY and DALTON, JJ., dissent.

8- Lopez v. Heesen, 69 N.M. 206, 365 P. 2d 448 N.M. 1961, 22 August 1961

365 P.2d 448 (1961)

69 N.M. 206
Jesse G. LOPEZ, Plaintiff-Appellant,
v.
Robert HEESEN and Sears, Roebuck and Company, a corporation, DefendantsAppellees.
No. 6760.
Supreme Court of New Mexico.
August 22, 1961.
Rehearing Denied October 31, 1961.
*449 Smith, Kiker & Kitts, and Ramon Lopez, Albuquerque, for appellant.
Sutin & Jones, Albuquerque, David R. Hardy, Kansas City, Mo., for appellees.
CHAVEZ, Justice.
Appellant, Jesse G. Lopez, originally filed suit against appellee, Robert Heesen, alleging
that on October 15, 1958, Heesen unlawfully, violently, maliciously and feloniously
assaulted and shot appellant with a shotgun, thereby inflicting dangerous and painful
wounds and injuries to appellant, causing him great bodily and mental pain and
anguish, all to his damage in the total sum of $80,000, which included $25,000 punitive
damages.
Appellee, Heesen, answered denying the allegations of the complaint and thereafter
appellant filed a demand for jury trial. By stipulation of appellant and appellee, Heesen,
appellee, Sears, Roebuck and Company was joined as a party-defendant. Appellee,
Sears, Roebuck and Company, will hereinafter be referred to as appellee "Sears."
Thereafter two amended complaints followed before the third amended complaint was
filed, alleging that appellee, Sears, was engaged in the design and manufacture of
hunting firearms, including the Higgins Model 51, Cal. 30.06 rifle, and was also engaged
in the selling of firearms in Albuquerque.
It was also alleged that on October 14, 1958, appellee, Sears, sold to appellee, Heesen,
one of said Higgins Model 51 hunting rifles; that said rifle was negligently designed or
manufactured by appellee, Sears, in that the safety mechanism moved readily and in a
dangerous manner from a "safe" to a "fire" position. In addition, it was alleged that the

40

rifle in this dangerous condition known to appellee, Sears, was sold to appellee, Heesen,
with the knowledge that it would be used for hunting purposes and that appellee,
Sears, negligently failed to warn appellee, Heesen, of the dangerous and defective
condition of the rifle.
The complaint further alleged that on the afternoon of October 15, 1958, in Colfax
County, New Mexico, appellee, Heesen, negligently permitted the rifle to discharge
while hunting and that as a proximate result of the joint and concurrent negligence of
both appellees, appellant sustained a severe and disabling wound and injury to his
chest, requiring hospital and surgical care. Appellant demanded damages in the
amount of $55,000 against both appellees, jointly and severally.
Appellee, Heesen, answered denying the allegations of the third amended complaint.
Appellee, Sears, also answered denying the allegations and raising additional
affirmative defenses, to-wit: That appellant's injuries were caused by an unavoidable
accident; that the negligence of appellee, Heesen, was the sole cause thereof; that
the rifle involved was of a recognized quality and of proper design and functioned
properly by all commercial sporting arms standards when used with reasonable care;
that rifles of this type had been manufactured by the millions and used by hunters
generally and by the government of the United States and foreign countries; that the
safety mechanism and its qualities were patent and obvious, and had been seen and
inspected by Heesen prior to the accident; that Heesen knew of the tendency of the
safety mechanism to come off safety to "fire" position while hunting in heavy brush and
climbing up and down mountain *450 terrain when pressure was applied to the safety
mechanism; that appellee, Sears, had no duty to warn appellee, Heesen, of the
method of operation and use of the safety mechanism; and that it could not have
been foreseen that appellee, Heesen, would continue to hunt in heavy brush and
mountainous terrain knowing that the safety mechanism would come off safety without
taking proper precautions to handle the rifle in a reasonable manner.
The jury returned its verdict finding the issues for both appellees and against appellant.
Judgment was entered for appellees and this appeal followed. Appellant abandoned
any contention that the verdict in favor of Heesen was erroneous and this appeal
concerns only appellee, Sears.
The facts are substantially as follows. In the early afternoon of October 14, 1958,
appellee, Heesen, an Air Force officer, purchased a J.C. Higgins Model 51, 30.06 rifle
from the store of appellee, Sears. Said rifle has a bolt action known more particularly as
a "Mauser type action" with which Heesen was familar. Heesen, although experienced
in hunting, was not familiar with the Higgins Model 51 and had never used such a rifle.
The safety mechanism on the rifle is what is known as a "Class 1" safety, meaning that it
interrupts the firing pin directly. The safety lever is mounted on the left side of the gun to
the rear of the bolt assembly. It is a two-position safety with the action locked when the
safety lever is in a raised position. To release the safety, you push the safety lever to the
left and down to a horizontal position and the gun is then ready to fire.
Heesen first telephoned appellee's store about obtaining a Higgins rifle which they
advertised. Later he went to appellee's store and purchased the rifle. At the time of the
purchase Heesen was given an instruction pamphlet which he read. Said pamphlet
explained the composition of the rifle and gave operating instructions, including the

method to be pursued to make the gun "safe," i.e., how the gun is put in a safety
position and how it may be released and have the gun ready to fire. It appears that
Heesen first talked to a salesman, John C. Villella, over the telephone and requested
that the rifle be put aside for him. However, another salesman, Roger Perkins made the
actual transfer of the rifle to Heesen. Perkins' whereabouts is unknown and nothing is
known as to Perkins' conversation with Heesen. Villella did not give Heesen any
instructions as to the use of the safety mechanism. There was a telescopic sight
advertised for sale for use with this rifle but Heesen did not care for the sight and did not
purchase it.
Immediately after the purchase of the rifle, Heesen left for a deer hunting trip in an area
known as Ute Park near the town of Eagle Nest in Colfax County. He arrived at Ute Park
that night and began hunting the next morning on October 15, 1958. Heesen hunted
without success and had seen no game up until the time his gun discharged and
appellant was wounded shortly after 3:00 P.M.
When Heesen commenced hunting that morning he placed a live cartridge in the
chamber and placed the gun on safety position. He traveled a good deal during the
hours before the shooting and on one or two occasions he discovered the gun off
safety position. This was when he had come down a long hill covered with rocks and
boulders and he assumed that he had hit it against a rock or something. Thereafter
Heesen checked the safety position on frequent occasions. Heesen carried the gun on
his right shoulder with the sling at port arms or ready position, with his left hand on the
forearm of the gun and his right hand on the stock, and by the forearm of the gun with
his right hand at the "balance" of the rifle. In each of these positions the safety lever was
toward Heesen's body or right leg. Heesen changed the position in which he carried the
rifle during the course of his walking up and down mountain slopes. He also carried it in
a different position in going through brush and in climbing or stepping upon rocks.
Although the gun moved from "safe" to "fire" position at least twice during the hours
before*451 the shooting, Heesen was not aware of this occurrence. Shortly before the
shooting, Heesen had been sitting on a knoll for about twenty minutes checking the
wind and watching for deer. While sitting on the knoll he checked or observed the
safety lever on the rifle several times and it was on safety position. At a time not more
than ten minutes before the shooting he left the knoll and started down a draw which
ran in a southerly or southwesterly direction. Heesen was not sure whether he checked
the safety lever after he left the knoll and he was carrying the gun on his shoulder by the
sling as he proceeded down the draw toward the point where the gun discharged.
At about this time, appellant, Jesse G. Lopez, was sitting next to a tree about fifty yards
away from the point where Heesen's gun subsequently discharged. Appellant in the
company of two hunting companions, Bennie Aragon and Ramon Barela, had gone
from Albuquerque to Ute Park on the afternoon of October 14, 1958, and after spending
the night in the area, commenced hunting on the morning of October 15th, the first day
of deer season. After hunting all morning and again in the early afternoon, the party
stopped to rest at the location where appellant was shot. It was then about 3:00 P.M.
and appellant, dressed in bright hunting clothes, was sitting about twenty feet away
from his two companions and scanning the area for game. After sitting there about four
or five minutes, appellant observed an object to his right which was moving but which
he could not identify. This was shortly before the shooting.

41

As appellee, Heesen, proceeded down the draw after leaving the knoll, he heard a
"rustle" and saw a deer go between some trees to the left of his line of travel about 50 to
100 yards away. The deer, when observed, was in a direction about 80 or 90 degrees to
the left of where appellant was sitting and Heesen did not observe appellant or his
companions before the shooting. At about this time Heesen removed the rifle from the
sling on his shoulder and held it by his right hand at or near the balance position of the
weapon. He then came to a dead log in his path which was about eight or ten inches
in diameter and was lying horizontally a foot or less off the ground with several dead
limbs sticking upward from it. One of these limbs was a dead sapling sticking up about
eighteen inches above the log and had a "fork" shaped like a thumb and forefinger
extended. Heesen wanted to cross the log to see the deer better, and as he stepped
across the log his left foot caught on a little limb sticking out and caused him to stumble.
His left foot went down hard on the ground on one side of the log and his right foot
slipped on the grass. This brought the gun down and the gun discharged, the bullet
striking appellant. Heesen testified that he had his hand at least six inches away from
the trigger when the gun discharged. Immediately after the gun discharged he
observed that the gun was on "fire" position.
Appellant was sitting on ground higher than Heesen at the time the gun discharged
and subsequent investigation showed that the bullet had gone uphill, hit a dead tree
and ricocheted several degrees to the left, and had thereafter struck some seedlings
before hitting appellant in the chest. The bullet traveled approximately fifty yards
altogether. Heesen went quickly to the spot where appellant was sitting, observed the
seriousness of his condition, and Heesen and Lopez' companions made immediate
arrangements to care for appellant. Heesen obtained medical aid.
There was testimony at the trial that when Heesen was going to the place of the
accident with Dr. E.L. Lindsley, he told Dr. Lindsley that the gun discharged as he was
moving it from "fire" position to the "safe" position.
Under point I, appellant contends that the trial court committed error in permitting
testimony as to the general reputation of other firearms companies who use the same
modified leaf safety device as the Higgins Model 51. A witness for appellee, Sears, Paul
A. La Violette, Jr., qualified as an expert in gun designing and testified *452 that the
following companies had an excellent reputation in the small arms field: Fabrique
Nationale of Belgium, Marlin Firearms Company, Weatherby Corporation, Colt Firearms
Company, and Jefferson Corporation. Objection was made to this testimony on the
ground that it was wholly immaterial and irrelevant to any issue in the case.
Appellant, in the third amended complaint, alleged that the Higgins Model 51 rifle was
in a dangerous and defective condition due to its negligent manufacture, design,
assembly or maintenance, in that the safety mechanism thereof moved readily and in a
dangerous manner from "safe" to "fire" position. This is an allegation of an ultimate issue
of fact which the jury had to decide. Here is an issue, the proper understanding of which
by a jury composed of six men and six ladies, requires specialized knowledge or
experience and cannot be determined independently merely from deductions made
and inferences drawn on the basis of ordinary knowledge. The jury was instructed that
expert testimony is intended only to assist them in coming to a correct conclusion upon
facts which are of a technical nature, but that the opinion of experts was not binding
upon them and the jury must determine the weight to be given to such testimony.

Appellant introduced evidence tending to prove that the safety device on the Higgins
Model 51 rifle is easy to knock off safety, making the rifle dangerous. Appellant's witness,
Frank Doyle, over appellee's, Sears', objection, expressed the opinion that the safety
device, without the telescopic sight, is not a safe piece, in that the projection is too long
and it is too prone to be knocked from "safe" to "fire" position. There is also testimony of
certain tests made with the Higgins Model 51 and the witness, Ira Kessler, expressed the
opinion that the Higgins Model 51 was unsafe without the telescopic sight. Another
witness, Robert Allen, testified as to the manner in which the safety lever of the Higgins
Model 51 moved from "safe" to "fire" position without his knowledge.
Appellee, Sears, introduced testimony of witnesses who were either experts in the small
arms field or experts in gun designing. The witness, Paul A. La Violette, Jr., testified that
he is a gun designer employed by High Standard Manufacturing Company who
manufacture the Higgins Model 51 for Sears. He qualified as an expert gun designer with
many years' experience with other rifle manufacturers and in factories designing and
building weapons of the small arms design. La Violette has two gun patents pending. La
Violette testified that the safety device on the Higgins Model 51 is supplied to High
Standard Manufacturing Company by Fabrique Nationale of Belgium. He also testified
extensively as to the advantages of the safety device of the Higgins Model 51 and
stated that six different makes of guns have the same modified leaf safety device as
does the Higgins Model 51. The manufacturers of these guns are F.N. Mauser, Colt,
Marlin, Nato and Weatherby. The evidence also shows that since 1951, 75,572 Higgins
Model 51 rifles with the modified leaf safety device have been sold by High Standard
Manufacturing Company to appellee, Sears. High Standard Manufacturing Company
has never been sued by reason of the design of the Higgins Model 51 rifle. There is also
opinion evidence that the Higgins Model 51 rifle is safe by all commercial sporting goods
standards.
Appellant appears to concede that the number of rifles manufactured with the
modified leaf safety device, and the fact that other companies manufacture guns with
the same design, is relevant as tending to show that the design is proper. Appellant also
seems to concede that the reputation of Fabrique Nationale of Belgium may be
relevant to the issue.
Subsequent to the testimony as to the reputation of the various firearms companies who
use a similar safety device as the Higgins Model 51, the witness, Paul A. La Violette, Jr.,
testified without objection that the Higgins Model 51 rifle is safe by all commercial
sporting goods standards, and that the design of the safety device of the
Higgins *453 Model 51 was not negligent or defective. He also testified, without
objection, that the safety device on the Higgins Model 51 rifle is excellent for hunting
and fulfills the requirements of a good designer. The witness, Thomas Raymond
Robinson, Jr., testified that in his opinion the Higgins Model 51 is good and practical in
the field for a prudent hunter, and is suitable for hunting. Ira L. Kessler, an expert witness
called by defendant, Heesen, testified that the Marlin Firearms Company has a fair
reputation, and that the Colt Firearms Company has an excellent reputation.
On an issue such as we have here we believe the applicable rule to be as stated in
Wigmore on Evidence, 3d Ed., Vol. II, 461, p. 489, as follows:

42

"(1) The conduct of others evidences the tendency of the thing in question; and such
conduct e.g. in using chains on a hill, felt shoes in a powder-factory, railings around a
machine, or in not using them is receivable with other evidence showing the
tendency of the thing as dangerous, defective, or the reverse. But this is only evidence.
The jury may find from other evidence that the thing was in fact dangerous, defective,
or the reverse, and the maintenance was or was not negligence, in spite of the above
evidence. * * *"
The conduct of others is proper evidence for a jury to consider in determining whether
the tendency of the thing is dangerous, defective, or the reverse. Chicago Great
Western Ry. Co. v. McDonough, 8 Cir., 161 F. 657; Wigmore on Evidence, 3d Ed., Vol. II,
461, p. 495.
Under our Rule, 21-1-1(43) (a), which is the same as the Federal Rule, the rule which
favors the reception of the evidence governs, the basis being that any evidence which
throws light on the question in issue should be admitted, leaving it to the trial court to
hold the hearing within reasonable bounds. Mourikas v. Vardianos, 4 Cir., 169 F.2d 53;
Lawrence v. Nutter, 4 Cir., 203 F.2d 540.
Circuit Judge Bratton, in a specially concurring opinion in United States v. Bowman, 10
Cir., 73 F.2d 716, 720, in stating the rule, quoted from United States Smelting Co. v. Parry,
8 Cir., 166 F. 407, as follows:
"It is true that in trials by jury it is their province to determine the ultimate facts, and that
the general rule is that witnesses are permitted to testify to the primary facts within their
knowledge, but not to their opinions. And it is also true that this has at times led to the
statement that witnesses may not give their opinions upon the ultimate facts which the
jury are to decide, because that would supplant their judgment and usurp their
province. But such a statement is not to be taken literally. It but reflects the general rule,
which is subject to important qualifications, and never was intended to close any
reasonable avenue to the truth in the investigation of questions of fact. Besides, the
tendency of modern decisions is not only to give as wide a scope as is reasonably
possible to the investigation of such questions, but also to accord to the trial judge a
certain discretion in determining what testimony has a tendency to establish the
ultimate facts, and to disturb his decision admitting testimony of that character only
when it plainly appears that the testimony had no legitimate bearing upon the
questions at issue and was calculated to prejudice the minds of the jurors. * * *"
Applying the above principles we hold that the testimony as to the reputation of
Fabrique Nationale, who manufacture the safety device on the Higgins Model 51, and
the reputation of Marlin Firearms Company, Weatherby Corporation, Colt Firearms
Company and Jefferson Corporation, who manufacture rifles which have the same
modified leaf safety device as the Higgins Model 51, was relevant to the issue of
whether the safety device on the Higgins Model 51 was unsafe or safe, and *454 that
the trial court did not abuse its discretion in admitting this testimony.
Under point II appellant also contends that the trial court committed error in permitting
evidence to be introduced as to the poundage pressure required to move the safety
levers of various rifles from "safe" to "fire" position. There is no merit in this contention.

Appellant's witness, Frank Doyle, testified fully as to his experience with guns and
particularly with the Higgins Model 51 safety device, which he termed the dangerous
feature of the safety mechanism in that it was "so easy to knock off." Doyle's testimony
was introduced under appellant's contention that the Higgins Model 51 rifle was unsafe
and thus the issue arose as to the pressure required to move the safety lever from "safe"
to "fire" position. Under the circumstances it was proper for appellee, Sears, to show that
the poundage pressure required to move the safety lever on a Higgins Model 51 from
"safe" to "fire" measured two-and-one-half pounds, and also to show the poundage
pressure required in rifles with identical safety devices. The evidence discloses that the
pound pressure required to move the safety lever on other similar devices was
sometimes a little less and sometimes more than the Higgins Model 51.
Under point III appellant claims that the trial court erred in permitting the witnesses, La
Violette, Thomas Robinson and Edwards Brown, to give opinion evidence that the safety
mechanism on the Higgins Model 51 rifle was negligently or defectively designed.
Objection was made to this testimony on the ground that this was an opinion upon a
subject which is within the province of the jury to determine and that the question asked
calls for an opinion as to a question of law and fact.
This contention, we think, must be rejected. The testimony of these witnesses, all experts
in their field, was upon the ultimate issue of fact of whether the safety device on the
Higgins Model 51 was dangerous and defective or unsafe, and was properly the subject
of expert testimony. Opinion evidence on an ultimate issue of fact does not attempt or
have the power to usurp the functions of the jury, and this evidence could not usurp the
jury's function because the jury may still reject these opinions and accept some other
view. Opinion evidence offered by both parties in this case was not binding upon the
jury and they were so instructed. See Wigmore on Evidence, 3d Ed., Vol. VII, 1920, p.
17; Hooper v. General Motors Corp., 123 Utah 515, 260 P.2d 549.
In Millers' National Ins. Co., Chicago, Ill. v. Wichita Flour Mills Co., 10 Cir., 257 F.2d 93, 100,
the court said:
"The insurance companies assert that McDonald was improperly permitted to invade
and usurp the province of the jury in that the sole issue was whether there was an
explosion and McDonald was allowed to testify that there was an explosion. The
controlling rule as stated by the United States Supreme Court is that where the matter
under inquiry is properly the subject of expert testimony, it is no objection that the
opinion sought to be elicited is upon the issue to be decided. That rule has been
followed in this circuit and applied in two recent decisions."
See also Eickmann v. St. Louis Public Service Co., 363 Mo. 651, 253 S.W.2d 122; United
States Smelting Co. v. Parry, 8 Cir., 166 F. 407; Nelson v. Brames, 10 Cir., 1957, 241 F.2d
256; and Cropper v. Titanium Pigment Co., 8 Cir., 47 F.2d 1038.
In 20 Am.Jur., Evidence, 775, p. 647, the rule is stated as follows:
"* * * In such cases, witnesses possessing requisite training, skill, or knowledge,
denominated `experts,' may testify, not only to the facts, but to their opinions respecting
the facts, so far as necessary to enlighten the jury and to enable it to come to a right

43

verdict. * * * Issues of this kind are said to create a necessity for the admission in
evidence of the opinions or conclusions of witnesses who are *455 shown to be specially
skilled or experienced in the particular field in question."
Appellant's final objection to the opinion testimony is that the question asked of the
witnesses calls for an opinion as to a question of law and fact.
Many of the cases cited by appellant on this point are automobile accident cases
which hold that an expert or a non-expert witness cannot express an opinion that the
defendant was negligent. The reasoning behind these cases is that this is within the field
of knowledge and understanding of the jury and is not a matter requiring technical
assistance of persons having unusual knowledge of the subject by reason of skill,
experience, or knowledge.
The parties agree that the ultimate issue of liability is for the jury to determine and that a
witness cannot express an opinion on a matter of law, as distinguished from an ultimate
fact. The ultimate issue in this case was whether the safety mechanism on the Higgins
Model 51 rifle was in a dangerous and defective condition due to its negligent design, in
that it moved readily and in a dangerous manner from "safe" to "fire" position.
Appellant's witnesses testified at great length in what respect they considered the safety
mechanism "dangerous," "unsafe," and "defective," and expressed the opinion that the
safety mechanism was not a safe piece and was unsafe without the telescopic sight.
Appellees' expert witnesses likewise testified in great detail as to the safety mechanism
and they were of the opinion that the safety mechanism on the Higgins Model 51 rifle
was safe by all commercial sporting goods standards, was suitable for hunting, and was
not negligently or defectively designed. Thus the jury was free to adopt either view and
then fix the liability.

would "usurp the functions of the jury." Other courts say that the opinion should not be
received because "that is the question which the jury must decide." If we are to add to
this, the additional confusion which exists in the decisions as to whether negligence is a
question of law or fact, or is a mixed question of law and fact, we would tend to create
more confusion and add to the fine distinctions and limitations.
Opinion evidence is admissible on the basis that it will aid the jury to understand the
problem and lead them to the truth on the ultimate facts, and opinions may be
disregarded by the jury in whole or in part. It is left to the jury to decide the issue. See
Seal v. Blackburn Tank Truck Service, 64 N.M. 282, 327 P.2d 797; and Hooper v. General
Motors Corp., supra.
From a careful consideration of the record, we have come to the conclusion that when
we consider all of the testimony *456 bearing upon the question of whether the rifle was
dangerous and defective due to its negligent design, that when appellee used the term
"negligent or defective," he was using the word "negligent" in a narrow sense and as to
an ultimate and provable fact. This excluded the element of liability. It was for the jury to
fix the ultimate liability of either party. All of the facts went to the jury and it is our view
that under all of the facts and circumstances of this case, the expert opinions expressed
were not improperly admitted.
The trial court did not abuse its discretion in permitting the experts to express their
opinion. Bunton v. Hull,51 N.M. 5, 177 P.2d 168; State v. Padilla, 1959, 66 N.M. 289, 347
P.2d 312; and Wells Truckways v. Cebrian, 1954, 122 Cal. App. 2d 666, 265 P.2d 557.
Finding no error in the record, the judgment of the district court is affirmed. It is so
ordered.
COMPTON, C.J., and CARMODY, J., concur.

The word "negligence" is sometimes used in a broad sense and sometimes in a narrow
sense. In the broad sense it includes the elements of liability. In the narrow sense the
element of liability is excluded. Pittsburgh, C., C. & St. L. Ry. Co. v. Nichols, 78 Ind. App.
361, 130 N.E. 546, 553.
"* * * An allegation of negligence as applied to the conduct of a party is not a mere
conclusion of law, unless made so by the law, but the statement of an ultimate
pleadable and provable fact. * * *"

MOISE and NOBLE, JJ., not participating.

9- People v. Bongcarawan, G.R. No. 143944, 11 July 2002

Peavy v. Hardin, Tex.Civ.App. 1926, 288 S.W. 588, 589. See also Gower v. Lamb, Mo. App.
1955, 282 S.W.2d 867; Ege v. Born, 212 Iowa 1138, 236 N.W. 75; Cohen v. Swiller, 1959, 17
Misc. 2d 921, 186 N.Y.S.2d 844; Louis v. Smith-McCormick Const. Co., 1917, 80 W. Va. 159,
92 S.E. 249; and Hooper v. General Motors Corp.,123 Utah 515, 260 P.2d 549.

THIRD DIVISION
[G.R. No. 143944. July 11, 2002.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BASHER
BONGCARAWAN y MACARAMBON, accused-appellant.

Beal v. Southern Union Gas Co., 66 N.M. 424, 349 P.2d 337, follows the rule that an expert
witness can express an opinion on an ultimate issue of fact, but cannot testify as to the
ultimate issue of liability.
There is much confusion among the decisions due to the language used by the courts in
explaining why opinion testimony should be excluded. Some courts say that the opinion

DECISION
PUNO, J p:

44

This is an appeal from the Decision 1 dated December 27, 1999 of the Regional Trial
Court of Iligan City, Branch 06, in Criminal Case No. 06-7542, finding accused Basher
Bongcarawan y Macarambon guilty beyond reasonable doubt of violation of Section
16, Article III of Republic Act No. 6425 2 as amended, and sentencing him to suffer the
penalty of reclusion perpetua, and to pay a fine of Five Hundred Thousand Pesos
(P500,000.00) without subsidiary imprisonment in case of insolvency. cDAIT
S

crystalline substance. 7When asked about the contraband articles, the accused
explained that he was just requested by a certain Alican "Alex" Macapudi to bring the
suitcase to the latter's brother in Iligan City. 8 The accused and the seized items were
later turned over by the coast guard to the Presidential Anti-Organized Crime Task Force
(PAOCTF). Chief Inspector Graciano Mijares and his men brought the accused to the
PAOCTF Headquarters, 9 while the packs of white crystalline substance were sent to the
NBI Regional Office in Cagayan de Oro City for laboratory examination. NBI Forensic
Chemist Nicanor Cruz later confirmed the substance to be methamphetamine
hydrochloride, commonly known as "shabu," weighing 399.3266 grams. 10

Accused Basher Bongcarawan y Macarambon was charged in an Information which

reads, thus: cEaSHC
"That on or about March 13, 1999, in the City of Iligan, Philippines,
and within the jurisdiction of this Honorable Court, the said
accused, without authority of law, did then and there wilfully,
unlawfully and feloniously have in his possession, custody and
control eight (8) packs of Methamphetamine Hydrochloride, a
regulated drug commonly known as Shabu, weighing
approximately 400 grams, without the corresponding license or
prescription.
Contrary to and in violation of Section 16, Article III of RA 6425,
otherwise known as the Dangerous Drugs Act of 1972, as amended
byRA 7659." 3

During the arraignment, the accused pleaded not guilty. Trial ensued.
Evidence for the prosecution shows that on March 11, 1999, an interisland passenger
ship, M/V Super Ferry 5, sailed from Manila to Iligan City. At about 3:00 a.m. on March
13, 1999, the vessel was about to dock at the port of Iligan City when its security officer,
Mark Diesmo, received a complaint from passenger Lorena Canoy about her missing
jewelry. Canoy suspected one of her co-passengers at cabin no. 106 as the culprit.
Diesmo and four (4) other members of the vessel security force accompanied Canoy to
search for the suspect whom they later found at the economy section. 4 The suspect
was identified as the accused, Basher Bongcarawan. The accused was informed of the
complaint and was invited to go back to cabin no. 106. With his consent, he was bodily
searched, but no jewelry was found. He was then escorted by two (2) security agents
back to the economy section to get his baggage. The accused took a Samsonite
suitcase and brought this back to the cabin. When requested by the security, the
accused opened the suitcase, revealing a brown bag and small plastic packs
containing white crystalline substance. Suspecting the substance to be "shabu," the
security personnel immediately reported the matter to the ship captain and took
pictures of the accused beside the suitcase and its contents. They also called the
Philippine Coast Guard for assistance. 5 At about 6:00 a.m., Lt. Robert Patrimonio, YN
Aurelio Estoque, CD2 Phoudinie Lantao and RM3 Merchardo De Guzman of the
Philippine Coast Guard arrived and took custody of the accused and the seized items
the Samsonite suitcase, a brown bag 6 and eight (8) small plastic packs of white

The accused testified and proffered his own version. On March 11, 1999, at about 10:00
p.m., he was in Quiapo, Manila where he met Alican "Alex" Macapudi, a neighbor who
has a store in Marawi City. He was requested by Macapudi to bring a Samsonite
suitcase containing sunglasses and watches to Iligan City, and to give it to Macapudi's
brother at the Iligan port. He boarded the M/V Super Ferry 5 on the same night, carrying
a big luggage full of clothes, a small luggage or "maleta" containing the sunglasses and
brushes he bought from Manila, and the Samsonite suitcase of Macapudi. 11 He stayed
at cabin no. 106. At about 4:00 a.m. of March 13, 1999, as the vessel was about to dock
at the Iligan port, he took his baggage and positioned himself at the economy section
to be able to disembark ahead of the other passengers. There, he met a friend, Ansari
Ambor. While they were conversing, five (5) members of the vessel security force and a
woman whom he recognized as his co-passenger at cabinno. 106 came and told him
that he was suspected of stealing jewelry. He voluntarily went with the group back to
cabin no. 106 where he was frisked. Subsequently, he was asked to get his baggage, so
he went back to the economy section and took the big luggage and Macapudi's
Samsonite suitcase. He left the small "maleta" containing sunglasses and brushes for fear
that they would be confiscated by the security personnel. When requested, he
voluntarily opened the big luggage, but refused to do the same to the Samsonite
suitcase which he claimed was not his and had a secret combination lock. The security
personnel forcibly opened the suitcase and found packs of white crystalline substance
inside which they suspected to be "shabu." They took pictures of him with the
merchandise, and asked him to sign a turn over receipt which was later given to the
Philippine Coast Guard, then to the PAOCTF. 12

On December 27, 1999, the trial court rendered judgment, the dispositive portion of
which reads:
"WHEREFORE, the court finds the accused Basher
Bongcarawan yMacarambon GUILTY beyond reasonable doubt as
principal of the offense of violation of Section 16, Art. III, R.A. No.
6425 as amended byR.A. No. 7659 and hereby imposes upon him
the penalty of RECLUSION PERPETUA and a fine of FIVE HUNDRED
THOUSAND (P500,000.00) PESOS, without subsidiary imprisonment in
case of insolvency.

45

Having been under preventive imprisonment since March 13, 1999

until the present, the period of such preventive detention shall be
credited in full in favor of the accused in the service of his
sentence.

the law. Thus, it could only be invoked against the State to whom the restraint against
arbitrary and unreasonable exercise of power is imposed. 20

The 399.3266 grams of methamphetamine hydrochloride or shabu

is hereby ordered delivered to the National Bureau of Investigation
for proper disposition.

In the case before us, the baggage of the accused-appellant was searched by the
vessel security personnel. It was only after they found "shabu" inside the suitcase that
they called the Philippine Coast Guard for assistance. The search and seizure of the
suitcase and the contraband items was therefore carried out without government
intervention, and hence, the constitutional protection against unreasonable search and
seizure does not apply.

SO ORDERED." 13

Hence, this appeal where the accused raises the following assignment of errors:
"I.
THE COURT A QUO ERRED IN SO HOLDING THAT THE DRUG
CONFISCATED IS ADMISSIBLE IN EVIDENCE AGAINST THE
ACCUSED/APPELLANT.
II.
THE COURT A QUO ERRED IN SO HOLDING THAT THE APPELLANT
OWNED THE CONFISCATED EVIDENCE AND THEREFORE ADMISSIBLE
IN EVIDENCE AGAINST HIM." 14
On the first assignment of error, the accused-appellant contends that the Samsonite
suitcase containing the methamphetamine hydrochloride or "shabu" was forcibly
opened and searched without his consent, and hence, in violation of his constitutional
right against unreasonable search and seizure. Any evidence acquired pursuant to such
unlawful search and seizure, he claims, is inadmissible in evidence against him. He also
contends that People v. Marti 15 is not applicable in this case because a vessel security
personnel is deemed to perform the duties of a policeman.
The contentions are devoid of merit.

The right against unreasonable search and seizure is a fundamental right protected by
the Constitution. 16 Evidence acquired in violation of this right shall be inadmissible for
any purpose in any proceeding. 17 Whenever this right is challenged, an individual may
choose between invoking the constitutional protection or waiving his right by giving
consent to the search and seizure. It should be stressed, however, that protection is
against transgression committed by the government or its agent. As held by this Court in
the case of People v. Marti, 18 "[i]n the absence of governmental interference, liberties
guaranteed by the Constitution cannot be invoked against the State." 19 The
constitutional proscription against unlawful searches and seizures applies as a restraint
directed only against the government and its agencies tasked with the enforcement of

There is no merit in the contention of the accused-appellant that the search and seizure
performed by the vessel security personnel should be considered as one conducted by
the police authorities for like the latter, the former are armed and tasked to maintain
peace and order. The vessel security officer in the case at bar is a private employee
and does not discharge any governmental function. In contrast, police officers are
agents of the state tasked with the sovereign function of enforcement of the law.
Historically and until now, it is against them and other agents of the state that the
protection against unreasonable searches and seizures may be invoked.
On the second assignment of error, the accused-appellant contends that he is not the
owner of the Samsonite suitcase and he had no knowledge that the same contained
"shabu." He submits that without knowledge or intent to possess the dangerous drug, he
cannot be convicted of the crime charged. 21
We are not persuaded.
In a prosecution for illegal possession of dangerous drugs, the following facts must be
proven beyond reasonable doubt, viz: (1) that the accused is in possession of the object
identified as a prohibited or a regulated drug; (2) that such possession is not authorized
by law; and (3) that the accused freely and consciously possessed the said drug. 22 The
first two elements were sufficiently proven in this case, and were in fact undisputed. We
are left with the third.
As early as 1910 in the case of United States v. Tan Misa, 23 this Court has ruled that to
warrant conviction, the possession of dangerous drugs must be with knowledge of the
accused, or that animus possidendi existed together with the possession or control of
such articles. 24 It has been ruled, however, that possession of dangerous drugs
constitutes prima facie evidence of knowledge or animus possidendi sufficient to
convict an accused in the absence of a satisfactory explanation of such
possession. 25 Hence, the burden of evidence is shifted to the accused to explain the
absence of knowledge or animus possidendi. 26
In this respect, the accused-appellant has utterly failed. His testimony, uncorroborated,
self-serving and incredulous, was not given credence by the trial court. We
find no reason to disagree. Well-settled is the rule that in the absence of palpable error
or grave abuse of discretion on the part of the trial judge, the trial court's evaluation of
the credibility of witnesses will not be disturbed on appeal. 27 Moreover, evidence must

46

be credible in itself to deserve credence and weight in law. In this case, the accusedappellant admits that when he was asked to get his baggage, he knew it would be
inspected. 28 Why he got the Samsonite suitcase allegedly not owned by him and
which had a combination lock known only to the owner remains unclear. He also claims
that he did not present his small "maleta" for inspection for fear that its contents
consisting of expensive sunglasses and brushes would be confiscated, 29 but he brought
the Samsonite suitcase which is not his and also contained expensive sunglasses, and
even watches. 30
The things in possession of a person are presumed by law to be owned by him.31 To
overcome this presumption, it is necessary to present clear and convincing evidence to
the contrary. In this case, the accused points to a certain Alican "Alex" Macapudi as the
owner of the contraband, but presented no evidence to support his claim. As aptly
observed by the trial judge:
"First, who is Alex Macap[u]di aka Ali[c]an Macap[u]di? Does he
really exist or simply a figment of the imagination? He says that Alex
Macap[u]di is a friend and a fellow businessman who has a stall
selling sunglasses in Marawi City. But no witnesses were presented
to prove that there is such a living, breathing, flesh and blood
person named Alex Macap[u]di who entrusted the Samsonite to
the accused. Surely, if he does exist, he has friends, fellow
businessmen and acquaintances who could testify and support the
claim of the accused." 32
Mere denial of ownership will not suffice especially if, as in the case at bar, it is the
keystone of the defense of the accused-appellant. Stories can easily be
fabricated. It will take more than bare-bone allegations to convince this Court that
a courier of dangerous drugs is not its owner and has no knowledge or intent to
possess the same.
WHEREFORE, the decision of the Regional Trial Court of Iligan City, Branch 06, in Criminal
Case No. 06-7542, convicting accused-appellant Basher Bongcarawan of violation of
Section 16, Article III of Republic Act No. 6425, as amended, and sentencing him to
suffer the penalty of Reclusion Perpetua and to pay a fine of Five Hundred Thousand
Pesos (P500,000.00) without subsidiary imprisonment in case of insolvency, is AFFIRMED.
Costs against the accused-appellant. IaHCAD
SO ORDERED.
Panganiban, Sandoval-Gutierrez and Carpio, JJ., concur.
||| (People v. Bongcarawan y Macarambon, G.R. No. 143944, [July 11, 2002], 433 PHIL
918-946)
10- People v. Marti, 193 SCRA 57

THIRD DIVISION
[G.R. No. 81561. January 18, 1991.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANDRE
MARTI, accused-appellant.
The Solicitor General for plaintiff-appellee.
Reynaldo B . Tatoy and Abelardo E . Rogacion for accused-appellant.
DECISION
BIDIN, J p:
This is an appeal from a decision * rendered by the Special Criminal Court of Manila
(Regional Trial Court, Branch XLIX) convicting accused-appellant of violation of Section
21 (b), Article IV in relation to Section 4, Article II and Section 2 (e)(i), Article I of Republic
Act 6425, as amended, otherwise known as the Dangerous Drugs Act.
The facts as summarized in the brief of the prosecution are as follows:
"On August 14, 1987, between 10:00 and 11:00 a.m., the appellant
and his common-law wife, Shirley Reyes, went to the booth of the
"Manila Packing and Export Forwarders" in the Pistang Pilipino
Complex, Ermita, Manila, carrying with them four (4) gift-wrapped
packages. Anita Reyes (the proprietress and no relation to Shirley
Reyes) attended to them. The appellant informed Anita Reyes that
he was sending the packages to a friend in Zurich, Switzerland.
Appellant filled up the contract necessary for the transaction,
writing therein his name, passport number, the date of shipment
and the name and address of the consignee, namely, "WALTER
FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)
"Anita Reyes then asked the appellant if she could examine and
inspect the packages. Appellant, however, refused, assuring her
that the packages simply contained books, cigars, and gloves and
were gifts to his friend in Zurich. In view of appellant's
representation, Anita Reyes nolonger insisted on inspecting the
packages. The four (4) packages were then placed inside a brown
corrugated box one by two feet in size (1' x 2'). Styro-foam was
placed at the bottom and on top of the packages before the box
was sealed with masking tape, thus making the box ready for
shipment (Decision, p. 8). LLpr
"Before delivery of appellant's box to the Bureau of Customs and/or
Bureau of Posts, Mr. Job Reyes (proprietor) and husband of Anita
(Reyes), following standard operating procedure, opened the
boxes for final inspection. When he opened appellant's box, a

47

peculiar odor emitted therefrom. His curiosity aroused, he

squeezed one of the bundles allegedly containing gloves and felt
dried leaves inside. Opening one of the bundles, he pulled out a
cellophane wrapper protruding from the opening of one of the
gloves. He made an opening on one of the cellophane wrappers
and took several grams of the contents thereof(tsn, pp. 29-30,
October 6, 1987; Emphasis supplied).

It turned out that the dried leaves were marijuana flowering tops as certified by the
forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).

"Job Reyes forthwith prepared a letter reporting the shipment to

the NBI and requesting a laboratory examination of the samples he
extracted from the cellophane wrapper (tsn, pp. 5-6, October 6,
1987).

In this appeal, accused/appellant assigns the following errors, to wit:

"He brought the letter and a sample of appellant's shipment to the

Narcotics Section of the National Bureau of Investigation (NBI), at
about 1:30 o'clock in the afternoon of that date, i.e., August 14,
1987. He was interviewed by the Chief of Narcotics Section. Job
Reyes informed the NBI that the rest of the shipment was still in his
office. Therefore, Job Reyes and three (3) NBI agents, and a
photographer, went to the Reyes' office at Ermita, Manila (tsn, p.
30, October 6, 1987).
"Job Reyes brought out the box in which appellant's packages
were placed and, in the presence of the NBI agents, opened the
top flaps, removed the styro-foam and took out the cellophane
wrappers from inside the gloves. Dried marijuana leaves were
found to have been contained inside the cellophane wrappers
(tsn, p. 38, October 6, 1987; Emphasis supplied).

Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise
known as the Dangerous Drugs Act.
After trial, the court a quo rendered the assailed decision.

"THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE

ILLEGALLY SEARCHED AND SEIZED OBJECTS CONTAINED IN THE
FOUR PARCELS.
"THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE
UNDISPUTED FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE
UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED. cdphil
"THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE
EXPLANATION OF THE APPELLANT ON HOW THE FOUR PARCELS
CAME INTO HIS POSSESSION." (Appellant's Brief, p. 1; Rollo, p. 55)
1. Appellant contends that the evidence subject of the imputed offense had been
obtained in violation of his constitutional rights against unreasonable search and seizure
and privacy of communication (Secs. 2 and 3, Art. III,Constitution) and therefore argues
that the same should be held inadmissible in evidence (Sec. 3 (2), Art. III).
Sections 2 and 3, Article III of the Constitution provide:

"The package which allegedly contained books was likewise

opened by Job Reyes. He discovered that the package contained
bricks or cake-like dried marijuana leaves. The package which
allegedly contained tabacalera cigars was also opened. It turned
out that dried marijuana leaves were neatly stocked underneath
the cigars (tsn, p. 39, October 6, 1987).

"Section 2. The right of the people to be secure in their persons,

houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and nosearch warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place
to be searched and the persons or things to be seized.

"The NBI agents made an inventory and took charge of the box
and of the contents thereof, after signing a "Receipt"
acknowledging custody of the said effects (tsn, pp. 2-3, October 7,
1987).

"Section 3. (1) The privacy of communication and correspondence

shall be inviolable except upon lawful order of the court, or when
public safety or order requires otherwise as prescribed by law.

Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated
address in his passport being the Manila Central Post Office, the agents requested
assistance from the latter's Chief Security. On August 27, 1987, appellant, while claiming
his mail at the Central Post Office, was invited by the NBI to shed light on the attempted
shipment of the seized dried leaves. On the same day the Narcotics Section of the NBI
submitted the dried leaves to the Forensic Chemistry Section for laboratory examination.

"(2) Any evidence obtained in violation of this or the preceding

section shall be inadmissible for any purpose in any proceeding."
Our present constitutional provision on the guarantee against unreasonable search and
seizure had its origin in the 1935 Charter which, worded as follows:

48

"The right of the people to be secure in their persons, houses,

papers and effects against unreasonable searches and seizures
shall not be violated, and no warrants shall issue but
upon probable cause, to be determined by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place
to be searched, and the persons or things to be seized." (Sec. 1 [3],
Article III).
was in turn derived almost verbatim from the Fourth Amendment ** to the United
States Constitution. As such, the Court may turn to the pronouncements of the
United States Federal Supreme Court and State Appellate Courts which are
considered doctrinal in this jurisdiction.
Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal
Supreme Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 2d [1961]), this Court, in Stonehill v.
Diokno (20 SCRA 383 [1967]), declared as inadmissible any evidence obtained by virtue
of a defective search and seizure warrant, abandoning in the process the ruling earlier
adopted in Moncado v. People's Court (80 Phil. 1 [1948]) wherein the admissibility of
evidence was not affected by the illegality of its seizure. The 1973 Charter (Sec. 4 [2], Art.
IV) constitutionalized the Stonehill ruling and is carried over up to the present with the
advent of the 1987 Constitution.
In a number of cases, the Court strictly adhered to the exclusionary rule and has struck
down the admissibility of evidence obtained in violation of the constitutional safeguard
against unreasonable searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA
823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1
[1986]; Roan v. Gonzales, 145 SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et al.,
GR No. 81510, March 14, 1990).
It must be noted, however, that in all those cases adverted to, the evidence so
obtained were invariably procured by the State acting through the medium of its law
enforcers or other authorized government agencies. LLpr
On the other hand, the case at bar assumes a peculiar character since the evidence
sought to be excluded was primarily discovered and obtained by a private person,
acting in a private capacity and without the intervention and participation of State
authorities. Under the circumstances, can accused/appellant validly claim that his
constitutional right against unreasonable searches and seizure has been violated?
Stated otherwise, may an act of a private individual, allegedly in violation of appellant's
constitutional rights, be invoked against the State?
We hold in the negative. In the absence of governmental interference, the liberties
guaranteed by the Constitution cannot be invoked against the State.
As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:
"1. This constitutional right (against unreasonable search and
seizure) refers to the immunity of one's person, whether citizen or

alien, from interference by government, included in which is his

residence, his papers, and other possessions . . .
". . . There the state, however powerful, does not as such have the
access except under the circumstances above noted, for in the
traditional formulation, his house, however humble, is his
castle. Thus is outlawed any unwarranted intrusion by government,
which is called upon to refrain from any invasion of his dwelling and
to respect the privacies of his life . . ." (Cf. Schermerber v. California,
384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886];
Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in
construing the right against unreasonable searches and seizures declared that:
"(t)he Fourth Amendment gives protection against unlawful
searches and seizures, and as shown in previous cases, its
protection applies to governmental action. Its origin and history
clearly show that it was intended as a restraint upon the activities
of sovereign authority, and was not intended to be a limitation
upon other than governmental agencies; as against such authority
it was the purpose of the Fourth Amendment to secure the citizen
in the right of unmolested occupation of his dwelling and the
possession of his property, subject to the right of seizure by process
duly served."
The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking
attendant who searched the automobile to ascertain the owner thereof found
marijuana instead, without the knowledge and participation of police authorities, was
declared admissible in prosecution for illegal possession of narcotics.
And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the
search and seizure clauses are restraints upon the government and its agents, not upon
private individuals, (citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892
(1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938
(1957).
Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:
"The search of which appellant complains, however, was made by
a private citizen the owner of a motel in which appellant stayed
overnight and in which he left behind a travel case containing the
evidence *** complained of. The search was made on the motel
owner's own initiative. Because of it, he became suspicious, called
the local police, informed them of the bag's contents, and made it
available to the authorities.
"The fourth amendment and the case law applying it do not
require exclusion of evidence obtained through a search by a

49

private citizen. Rather, the amendment only proscribes

governmental action."
The contraband in the case at bar having come into possession of the Government
without the latter transgressing appellant's rights against unreasonable search and
seizure, the Court sees no cogent reason why the same should not be admitted against
him in the prosecution of the offense charged. LLphil
Appellant, however, would like this court to believe that NBI agents made an illegal
search and seizure of the evidence later on used in prosecuting the case which resulted
in his conviction.
The postulate advanced by accused/appellant needs to be clarified in two days. In
both instances, the argument stands to fall on its own weight, or the lack of it.
First, the factual considerations of the case at bar readily foreclose the proposition that
NBI agents conducted an illegal search and seizure of the prohibited merchandise.
Records of the case clearly indicate that it was Mr. Job Reyes, the proprietor of the
forwarding agency, who made search/inspection of the packages. Said inspection was
reasonable and a standard operating procedure on the part of Mr. Reyes as a
precautionary measure before delivery of packages to the Bureau of Customs or the
Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original Records, pp. 119122; 167-168).
It will be recalled that after Reyes opened the box containing the illicit cargo, he took
samples of the same to the NBI and later summoned the agents to his place of business.
Thereafter, he opened the parcels containing the rest of the shipment and entrusted
the care and custody thereof to the NBI agents. Clearly, the NBI agents
made no search and seizure, much less an illegal one, contrary to the postulate of
accused/appellant.

Second, the mere presence of the NBI agents did not convert the reasonable search
effected by Reyes into a warrantless search and seizure proscribed bythe Constitution.
Merely to observe and look at that which is in plain sight is not a search. Having
observed that which is open, where no trespass has been committed in aid thereof, is
not search (Chadwick v. State, 429 SW2d 135). Where the contraband articles are
identified without a trespass on the part of the arresting officer, there is not the search
that is prohibited by the constitution(US v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker v.
State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122
[1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the
property was taken into custody of the police at the specific request of the manager
and where the search was initially made by the owner there is nounreasonable search
and seizure within the constitutional meaning of the term.

That the Bill of Rights embodied in the Constitution is not meant to be invoked against
acts of private individuals finds support in the deliberations of the Constitutional
Commission. True, the liberties guaranteed by the fundamental law of the land must
always be subject to protection. But protection against whom? Commissioner Bernas in
his sponsorship speech in the Bill of Rights answers the query which he himself posed, as
follows:
"First, the general reflections. The protection of fundamental
liberties in the essence of constitutional democracy. Protection
against whom?Protection against the state. The Bill of Rights
governs the relationship between the individual and the state. Its
concern is not the relation between individuals, between a private
individual and other individuals. What the Bill of Rights does is to
declare some forbidden zones in the private sphere inaccessible to
any power holder." (Sponsorship Speech of Commissioner Bernas;
Record of the Constitutional Commission, Vol. 1, p. 674; July 17,
1986; Emphasis supplied)
The constitutional proscription against unlawful searches and seizures therefore applies
as a restraint directed only against the government and its agencies tasked with the
enforcement of the law. Thus, it could only be invoked against the State to whom the
restraint against arbitrary and unreasonable exercise of power is imposed. cdphil
If the search is made upon the request of law enforcers, a warrant must generally be first
secured if it is to pass the test of constitutionality. However, if the search is made at the
behest or initiative of the proprietor of a private establishment for its own and private
purposes, as in the case at bar, and without the intervention of police authorities, the
right against unreasonable search and seizure cannot be invoked for only the act of
private individual, not the law enforcers, is involved. In sum, the protection against
unreasonable searches and seizures cannot be extended to acts committed by private
individuals so as to bring it within the ambit of alleged unlawful intrusion by the
government.
Appellant argues, however, that since the provisions of the 1935 Constitutionhas been
modified by the present phraseology found in the 1987 Charter, expressly declaring as
inadmissible any evidence obtained in violation of the constitutional prohibition against
illegal search and seizure, it matters not whether the evidence was procured by police
authorities or private individuals (Appellant's Brief, p. 8, Rollo, p. 62).
The argument is untenable. For one thing, the constitution, in laying down the principles
of the government and fundamental liberties of the people, does not govern
relationships between individuals. Moreover, it must be emphasized that the
modifications introduced in the 1987 Constitution (re: Sec. 2, Art. III) relate to the
issuance of either a search warrant or warrant of arrest vis-a-vis the responsibility of the
judge in the issuance thereof (See Soliven v. Makasiar, 167 SCRA 393 [1988]; Circular No.
13 [October 1, 1985] and Circular No. 12 [June 30, 1987]. The modifications introduced
deviate in no manner as to whom the restriction or inhibition against unreasonable
search and seizure is directed against. The restraint stayed with the State and did not
shift to anyone else.

50

Corollarily, alleged violations against unreasonable search and seizure may only be
invoked against the State by an individual unjustly traduced by the exercise of
sovereign authority. To agree with appellant that an act of a private individual in
violation of the Bill of Rights should also be construed as an act of the State would result
in serious legal complications and an absurd interpretation of the constitution.
Similarly, the admissibility of the evidence procured by an individual effected through
private seizure equally applies, in pari passu, to the alleged violation, non-governmental
as it is, of appellant's constitutional rights to privacy and communication.
2. In his second assignment of error, appellant contends that the lower court erred in
convicting him despite the undisputed fact that his rights under the constitution while
under custodial investigation were not observed.
Again, the contention is without merit, We have carefully examined the records of the
case and found nothing to indicate, as an "undisputed fact", that appellant was not
informed of his constitutional rights or that he gave statements without the assistance of
counsel. The law enforcers testified that accused/appellant was informed of his
constitutional rights. It is presumed that they have regularly performed their duties (Sec.
5(m), Rule 131) and their testimonies should be given full faith and credence, there
being no evidence to the contrary. What is clear from the records, on the other hand, is
that appellant refused to give any written statement while under investigation as
testified by Atty. Lastimoso of the NBI, Thus:
"Fiscal Formoso:
"You said that you investigated Mr. and Mrs. Job
Reyes. What about the accused here, did you
investigate the accused together with the girl?
"WITNESS:
"Yes, we have interviewed the accused together
with the girl but the accused availed of his
constitutional right not to give any written
statement, sir." (TSN, October 8, 1987, p. 62;
Original Records, p. 240)
The above testimony of the witness for the prosecution was not contradicted by the
defense on cross-examination. As borne out by the records, neither was there any proof
by the defense that appellant gave uncounselled confession while being investigated.
What is more, we have examined the assailed judgment of the trial court and nowhere
is there any reference made to the testimony of appellant while under custodial
investigation which was utilized in the finding of conviction. Appellant's second
assignment of error is therefore misplaced. cdphil
3. Coming now to appellant's third assignment of error, appellant would like us to
believe that he was not the owner of the packages which contained prohibited drugs
but rather a certain Michael, a German national, whom appellant met in a pub along

Ermita, Manila; that in the course of their 30-minute conversation, Michael requested
him to ship the packages and gave him P2,000.00 for the cost of the shipment since the
German national was about to leave the country the next day (October 15, 1987, TSN,
pp. 2-10).
Rather than give the appearance of veracity, we find appellant's disclaimer as
incredulous, self-serving and contrary to human experience. It can easily be fabricated.
An acquaintance with a complete stranger struck in half an hour could not have
pushed a man to entrust the shipment of four (4) parcels and shell out P2,000.00 for the
purpose and for appellant to readily accede to comply with the undertaking without
first ascertaining its contents. As stated by the trial court, "(a) person would not simply
entrust contraband and of considerable value at that as the marijuana flowering tops,
and the cash amount of P2,000.00 to a complete stranger like the Accused. The
Accused, on the other hand, would not simply accept such undertaking to take
custody of the packages and ship the same from a complete stranger on his mere sayso" (Decision, p. 19, Rollo, p. 91). As to why he readily agreed to do the errand,
appellant failed to explain. Denials, if unsubstantiated by clear and convincing
evidence, are negative self-serving evidence which deserve no weight in law and
cannot be given greater evidentiary weight than the testimony of credible witnesses
who testify on affirmative matters (People v. Esquillo, 171 SCRA 571 [1989]; People vs.
Sariol, 174 SCRA 237 [1989]).
Appellant's bare denial is even made more suspect considering that, as per records of
the Interpol, he was previously convicted of possession of hashish by the Kleve Court in
the Federal Republic of Germany on January 1, 1982 and that the consignee of the
frustrated shipment, Walter Fierz, also a Swiss national, was likewise convicted for drug
abuse and is just about an hour's drive from appellant's residence in Zurich, Switzerland
(TSN, October 8, 1987, p. 66; Original Records, p. 244; Decision, p. 21; Rollo, p. 93).
Evidence to be believed, must not only proceed from the mouth of a credible witness,
but it must be credible in itself such as the common experience and observation of
mankind can approve as probable under the circumstances (People v. Alto, 26 SCRA
342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg. 130; see also People v. Sarda, 172
SCRA 651 [1989]; People v. Sunga, 123 SCRA 327 [1983]); Castaares v. CA, 92 SCRA 567
[1979]). As records further show, appellant did not even bother to ask Michael's full
name, his complete address or passport number. Furthermore, if indeed, the German
national was the owner of the merchandise, appellant should have so indicated in the
contract of shipment (Exh. "B", Original Records, p. 40). On the contrary, appellant
signed the contract as the owner and shipper thereof giving more weight to the
presumption that things which a person possesses, or exercises acts of ownership over,
are owned by him (Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped to
claim otherwise. LexLib

Premises considered, we see no error committed by the trial court in rendering the
assailed judgment.

51

WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable

doubt of the crime charged is hereby AFFIRMED. No costs.

crime, and at the hearing of the motion the following day, the Prosecutor further
asked that accused Richard Malig be dropped from the information because
further evaluation of the evidence disclosed nosufficient evidence against him. 3

SO ORDERED.
Fernan, C.J., Gutierrez, Jr . and Feliciano, JJ., concur.
||| (People v. Marti, G.R. No. 81561, [January 18, 1991], 271 PHIL 51-65)

The motion to drop Malig was granted and warrants for the arrest of
accused Salvamante and Maqueda were issued. Maqueda was subsequently
arrested on 4 March 1992, and on 9 April 1992, he filed an application for bail.4 He
categorically stated therein that "he is willing and volunteering to be a State witness
in the above-entitled case, it appearing that he is the least guilty among the
accused in this case."
On 22 April 1992, the prosecution filed an Amended Information5 with only
Salvamante and Maqueda as the accused. Its accusatory portion reads as follows:

11- People v. Maqueda, 242 SCRA 565

FIRST DIVISION
[G.R. No. 112983. March 22, 1995.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HECTOR
MAQUEDA @ PUTOL, and RENE SALVAMANTE (at
large),accused, HECTOR MAQUEDA @ PUTOL, accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
DECISION
DAVIDE, JR., J p:
As against a bustling city life, Britisher Horace William Barker, a consultant
of the World Bank, and his Filipino wife, Teresita Mendoza, chose the peace and
quiet of a country home not any near the metropolis of Manila or its environs, but in
the rugged and mountainous terrain of Tuba, Benguet. Perhaps they thought they
were in a veritable paradise, beyond the reach of worldly distractions and trouble.
That illusion was shattered when in the early morning of 27 August 1991, in the
sanctity of their own home, Horace was brutally slain and Teresita badly battered
with lead pipes on the occasion of a robbery. Sufficient prima facie evidence
pointed to Rene Salvamante, the victims, former houseboy, as one of the
perpetrators of the ghastly crime.

That on or about the 27th of August, 1991, at Tagadi. Upper

Tadiangan, Municipality of Tuba, Province of Benguet, Philippines,
and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating and mutually aiding
one another, armed with lead pipes, and with intent of gain and
against the will and consent of the owners thereof, did then and
there willfully, unlawfully and feloniously enter the house of spouses
TERESITA and WILLIAM HORACE BARKER and with violence against
and intimidation of the persons therein ransack the place and take
and carry away the following articles, to wit:
[An enumeration and description of the articles follow]
all having a total value of TWO HUNDRED FOUR THOUSAND TWO
HUNDRED FIFTY PESOS (P204,250.00). Philippine Currency, belonging
to the said Teresita and William Horace Barker; that on the
occasion and by reason of the said robbery, both accused willfully,
unlawfully and feloniously repeatedly strike Teresita Barker and
William Horace Barker with lead pipes on the different parts of their
body, leading to the death of William Horace Barker and inflicting
various physical injuries on the former which required medical
attendance for a period of more than thirty (30) days and have
likewise incapacitated her from the performance of her customary
labor for the same period of time.
Contrary to Law.

As to Rene's co-conspirator, the prosecution initially included one Richard

Malig y Severino in the information for robbery with homicide and serious physical
injuries 1 filed on 19 November 1991 with Branch 10 of the Regional Trial Court (RTC)
of Benguet at La Trinidad, Benguet. cdrep

Since Rene Salvamante continues to elude arrest and has remained at

large, trial proceeded against Maqueda only, after he entered a plea of not guilty
on 22 April 1992. 6

Only Richard Malig was arrested. On 22 January 1992, prior to the

arraignment of Richard Malig, the prosecution filed a motion to amend the
information 2 to implead as co-accused Hector Maqueda alias Putol because the
evaluation of the evidence subsequently submitted established his complicity in the

In its decision 7 promulgated on 31 August 1993, the trial court found

accused Hector Maqueda guilty beyond reasonable doubt of the crime of robbery
with homicide and serious physical injuries and sentenced him to suffer the penalty
of reclusion perpetua and to "indemnify the victim, Teresita M. Barker in the amount

52

of P50,000.00 for the death of William Horace Barker, P41,681.00 representing actual
expenses, P100,000.00 as moral damages and to pay the costs." LLjur

consciousness. At the trial, she pointed to accused Maqueda as Salvamante's

companion.

The prosecution presented as its witnesses Mrs. Teresita Mendoza Barker,

househelps Norie Dacara and Julieta Villanueva, Mike Tayaban, Dr. Francisco
Hernandez, Jr., Francisco Cabotaje, Prosecutor Daniel Zarate, Ray Dean Salvosa,
Glen Enriquez, SPO1 Rodolfo Tabadero, and Policarpio Cambod in its evidence in
chief and Fredesminda Castrence and SPO3 Armando Molleno on rebuttal.
Accused Hector Maqueda took the witness stand and presented SPO1 Aurelio
Sagun, Jr. in his evidence in chief and Myrna Maqueda Katindig as his sur-rebuttal
witness.

Salvamante also hit Norie with the lead pipe on her back and at the back
of her right hand. She fell to the concrete floor, and after she had recovered, she
ran to the garage and hid under the car. After a few seconds, she went near the
door of the garage and because she could not open it, she called Julieta. Julieta
opened the door and they rushed to their room and closed the door. When they
saw that the door knob was being turned, they braced themselves against the
door to prevent anyone from entering. While locked in their room, they heard the
moans of Mrs. Barker and the shouts of Mr. Barker: "That's enough, that's enough,
that's enough." When the noise stopped, Norie and Julieta heard the sound of
water flowing from the toilet and the barking of dogs.

The version of the prosecution, as culled from the trial court's detailed and
meticulous summary thereof, is as follows:
Between 10:30 and 11:00 p.m. of 26 August 1991, the spouses Horace
William Barker and Teresita Mendoza Barker repaired to their bedroom after Teresita
had checked as was her wont, the main doors of their house to see if they had
been locked and bolted.
At around 6:00 a.m. of the following day, 27 August 1991, Norie Dacara, a
househelp of the Barkers who shared a room with her cousin and fellow househelp,
Julieta Villanueva, got up, opened the door to the garage, went to the lavatory to
wash her face, and proceeded to the toilet. When she opened the door of the
toilet and switched on the light, she saw Rene Salvamante. She knew Salvamante
very well because he and his sister Melanie were the former househelps of the
Barkers whom she and Julieta Villanueva had replaced and because Salvamante
had acquainted her on her chores. LLphil
Salvamante suddenly strangled her. While she was fighting back, Norie
happened to turn her face and she saw a fair-complexioned, tall man with a highbridged nose at Salvamante's side, whom she identified at the trial as Maqueda.
After she broke free from Salvamante, Norie fled towards the garage and shouted
for help. Salvamante chased her and pulled her back inside the house.
Julieta Villanueva, who was awakened by the shouts of Norie, got out of
her bed and upon opening the door of her room, saw a man clad in maong jacket
and short pants with his right hand brandishing a lead pipe standing two meters in
front of her. At the trial, she pointed to accused Maqueda as the man she saw
then. She got scared and immediately closed the door. Since the door knob turned
as if someone was forcing his way into the room, she held on to it and shouted for
help.
The shouts awakened Teresita Mendoza Barker. She rose from her bed
and went out of the room, leaving behind her husband who was still asleep. She
went down the stairs and proceeded to the dining room. She saw Salvamante and
a companion who was a complete stranger to her. Suddenly, the two rushed
towards her and beat her up with lead pipes. Despite her pleas to get what they
want and not to hurt her, they continued to beat her up until she lost

At 7:00 a.m. of that same day, 27, August 1991, Mike Tabayan and Mark
Pacio were resting in a waiting shed beside the Asin road at Aguyad, Tuba,
Benguet, which is only a kilometer away from the house of the Barkers. They saw
two men approaching them from a curve. When the two men reached the shed,
he and Mark noticed that the taller of the two had an amputated left hand and a
right hand with a missing thumb and index finger. This man was carrying a black
bag on his right shoulder.
Speaking in Tagalog, the taller man asked Mike and Mark whether the
road they were following would lead to Naguilian, La Union. Mike replied that it did
not. Five minutes later, a passenger jeepney bound for Baguio City and owned and
driven by Ben Lusnong arrived at the waiting shed. The two men boarded it. Mike
again noticed that the taller man had the defects above mentioned because the
latter used his right hand with only three fingers to hold on to the bar of the jeepney
as he boarded it. In the investigation conducted by the Tuba police, he identified
through a picture the shorter man as Salvamante, and at the hearing, he pointed
to Maqueda as the taller man.

At 9:00 a.m. of 27 August 1991, Norie and Julieta gathered enough

courage to leave the room where they had earlier barricaded themselves and
proceed to the kitchen to get the key to the gate of the garage. In the dining
room, they saw the Barkers bathed in their own blood. Norie and Julieta rushed out
of the house and ran to the place of Janet Albon to seek help. After requesting
Janet to call the police, they returned to the Barker's house but did not enter it for
fear of what they had seen earlier. They just stayed near the road. LLphil
Soon after, security guards of the Baguio College Foundation (BCF)
arrived. A team from the Baguio City Police Station, headed by police Officer
Policarpio Cambod, and which included Dr. Perfecto Micu of the City Health
Department, also arrived. The team conducted an initial investigation only
because it found out that the scene of the crime was within the jurisdiction of the
Tuba Police Station, which, however, was difficult to get in touch with at that time.
Dr. Perfecto Micu found the body of Mr. Barker inside the Barker house and

53

Cambod prepared a sketch (Exhibit "JJ") showing its location. They went around
the house and found a lead pipe (Exhibit "AA") at the toilet, a black T-shirt (Exhibit
"CC"), and a green hand towel (Exhibit "DD"). He also discovered another lead pipe
(Exhibit "BB") at the back of the door of the house. He then interviewed the two
househelps who provided him with descriptions of the assailants. The team then left,
leaving behind BCF Security Officer Glen Enriquez and a security guard. Cambod
prepared a report of his initial investigation (Exhibit "KK"). LibLex
Enriquez conducted his own investigation. At the master's bedroom, he
saw several pieces of jewelry scattered on the floor and an empty inner cabinet.
He noticed footprints at the back of the house, particularly at the riprap wall, and
observed that the grass below it was parted as if someone had passed through
and created a trail amidst the grass down toward the Asin road of Tuba, Benguet.
Upon his request, a security guard of the BCF, Edgar Dalit, was sent to the Barker
house to secure the premises. Enriquez then left after Dalit's arrival.
At 5:00 p.m. of that same day, members of the Tuba Police Station arrived
at the Barker house to conduct their investigation. Enriquez, who in the meantime
was called by Dalit, returned to the Barker house.
The lead pipes, black T-shirt, and the green hand towel recovered from
the Barker house by the Baguio City Police were first brought to the PNP Crime
Laboratory Service at Camp Dangwa, La Trinidad, Benguet, and then to the court.
The body of William Horace Barker was taken to the Baguio Funeral
Homes at Naguilian Road, Baguio City, where it was examined by Dr. Francisco P.
Cabotaje, Municipal Health Officer of Tuba, Benguet. He found in it twenty-seven
injuries, which could have been caused by a blunt instrument, determined the
cause of death as hemorrhagic shock, and then issued a death certificate (Exhibits
"P," "O," and "R"). LexLib
The wounded Teresita Barker was brought to the Baguio General Hospital
and Medical Center where she was treated and confined for eight days. The
attending physician, Dr. Francisco L. Hernandez, Jr., first saw her at around 11:00
a.m. of 27 August 1991. She was in a comatose state. Dr. Hernandez found that she
sustained multiple lacerations primarily on the left side of the occipital area,
bleeding in the left ear, and bruises on the arm. One of the muscles adjoining her
eyes was paralyzed. She regained consciousness only after two days. Dr.
Hernandez opined that Mrs. Barker's injuries were caused by a blunt instrument, like
a lead pipe, and concluded that if her injuries had been left unattended, she
would have died by noontime of 27 August 1991 due to bleeding or hemorrhagic
shock.
On 1 September 1991, a police team from the Tuba Police Station,
Benguet, came to the hospital bed of Mrs. Barker, showed her pictures of several
persons, and asked her to identify the persons who had assaulted her. She pointed
to a person who turned out to be Richard Malig. When informed of the
investigation, Dr. Hernandez told the members of the team that it was improper for
them to conduct it without first consulting him since Mrs. Barker had not yet fully

recovered consciousness. Moreover, her eyesight had not yet improved, her visual
acuity was impaired, and she had double vision. LexLib
On 3 September 1991, the remains of Mr. Barker were cremated. Mrs.
Barker was then discharged from the hospital and upon getting home, tried to
determine the items lost during the robbery. She requested Glen Enriquez to get
back the pieces of jewelry taken by the Tuba PNP (Exhibit "U"). The Tuba PNP gave
them to Enriquez (Exhibit "V"). Mrs. Barker discovered that her Canon camera, radio
cassette recorder (Exhibit "W-3"), and some pieces of jewelry (Exhibit "W-2") were
missing. The aggregate value of the missing items was P204,250.00. She then
executed an affidavit on these missing items (Exhibit "X").
Mrs. Barker underwent a CT Scan at the St. Luke's Hospital in Quezon City.
It was revealed that she sustained a damaged artery on her left eye which could
cause blindness. She then sought treatment at the St. Luke's Roosevelt Hospital in
New York (Exhibit "L") where she underwent an unsuccessful operation. She likewise
received treatment at the New York Medical Center (Exhibit "M").
On 29 November 1991, Ray Dean Salvosa, Executive Vice President of the
BCF, ordered Glen Enriquez to go to Guinyangan, Quezon, to coordinate with the
police in determining the whereabouts of accused Rene Salvamante. In
Guinyangan, Enriquez was able to obtain information from the barangay captain,
Basilio Requeron, that he saw Salvamante together with a certain "Putol" in
September 1991; however, they already left the place.
On 21 December 1991, Enriquez, Melanio Mendoza, and three others
went back to Guinyangan to find out whether Salvamante and "Putol' had
returned. Upon being informed by Barangay Captain Requeron that the two had
not, Enriquez requested Requeron to notify him immediately once Salvamante or
"Putol" returned to Guinyangan. cdll
On 4 March 1992, Requeron's daughter called up Enriquez to inform him
that "Putol," who is none other than accused Hector Maqueda, had been arrested
in Guinyangan. Enriquez and Maj. Rodolfo Anagaran, Chief of the Tuba Police
Station, together with another policeman, proceeded to Guinyangan. The
Guinyangan Police Station turned over Maqueda to Maj. Anagaran who then
brought Maqueda to the Benguet Provincial Jail.
Before Maj. Anagaran's arrival at Guinyangan, Maqueda had been taken
to the headquarters of the 235th PNP Mobile Force Company at Sta. Maria,
Calauag, Quezon. Its commanding officer, Maj. Virgilio F. Renton, directed SPO3
Armando Molleno to get Maqueda's statement. He did so and according to him,
he informed Maqueda of his rights under the Constitution. Maqueda thereafter
signed a Sinumpaang Salaysay (Exhibit "LL") wherein he narrated his participation in
the crime at the Barker house on 27 August 1991.
On 9 April 1992, while he was under detention, Maqueda filed a Motion to
Grant Bail (Exhibit "GG-6"). He stated therein that "he is willing and volunteering to
be a State witness in the above entitled case, it appearing that he is the least guilty

54

among the accused in this case." Prosecutor Zarate then had a talk with Maqueda
regarding such statement and asked him if he was in the company of Salvamante
on 27 August 1991 in entering the house of the Barkers. After he received an
affirmative answer, Prosecutor Zarate told Maqueda that he would oppose the
motion for bail since he, Maqueda, was the only accused on trial (Exhibit "II").
In the meantime, Ray Dean Salvosa arrived at the Office of Prosecutor
Zarate and obtained permission from the latter to talk to Maqueda. Salvosa then
led Maqueda toward the balcony. Maqueda narrated to Salvosa that Salvamante
brought him to Baguio City in order to find a job as a peanut vendor; Salvamante
then brought him to the Barker house and it was only when they were at the vicinity
thereof that Salvamante revealed to him that his real purpose in going to Baguio
City was to rob the Barkers; he initially objected to the plan, but later on agreed to
it; when they were in the kitchen of the Barker house, one of the househelps was
already there; Salvamante hit her with a lead pipe and she screamed; then Mrs.
Barker came down, forcing him, Maqueda, to attack her with the lead pipe
provided him by Salvamante. After he felled Mrs. Barker, he helped Salvamante in
beating up Mr. Barker who had followed his wife downstairs. When the Barkers were
already unconscious on the floor, Salvamante went upstairs and a few minutes
later came down bringing with him a radio cassette and some pieces of jewelry.
Maqueda further divulged to Salvosa that they then changed clothes,
went out of the house, walked toward the road where they saw two persons from
whom they asked directions and when a passenger jeepney stopped and they
were informed by the two persons that it was bound for Baguio City, he and
Salvamante boarded it. They alighted somewhere along Albano Street in Baguio
City and walked until they reached the Philippine Rabbit Bus station where they
boarded a bus for Manila. 8
Accused Hector Maqueda put up the defense of denial and alibi. His
testimony is summarized by the trial court in this wise:
Accused Hector Maqueda denied having anything to do with the
crime. He stated that on August 27, 1991 he was at the polvoron
factory owned by Minda Castrense located at Lot 1, Block 21,
Posadas Bayview Subdivision, Sukat, Muntinlupa. Metro Manila. He
was employed as a caretaker since July 5, 1991 and he worked
continuously there up to August 27, 1991. It was his sister, Myrna
Katindig, who found him the job as caretaker. As caretaker, it was
his duty to supervise the employees in the factory and whenever
his employer was not around, he was in charge of the sales. He
and his 8 co-employees all sleep inside the factory.
On August 26, 1991, he reported for work although he could not
recall what he did that day. He slept inside the factory that night
and on August 27, 1991, he was teaching the new employees how
to make the seasoning for the polvoron.

On December 20, 1991, he went home to Gapas, Guinyangan,

Quezon Province as it was his vacation time from his job at the
polvoron factory. He was to be back at work after New Year's Day
in 1992. Upon alighting from the bus at Guinyangan, Quezon, he
saw accused Rene Salvamante. He knows accused Salvamante as
they were childhood playmates, having gone to the same
elementary school. He had no chance to talk to him that day
when he saw him and so they just waved to each other. He again
saw accused Salvamante after Christmas day on the road beside
their (Salvamante) house. Salvamante invited him to go to
Calauag, Quezon Province and roam around. He agreed to go as
he also wanted to visit his brother, Jose Maqueda who resided at
Sabangdos, Calauag, Quezon. When the two accused were at
Calauag, Salvamante asked Maqueda to accompany him
(Salvamante) in selling a cassette recorder which he said came
from Baguio City. Accused Maqueda knew that Salvamante
worked in Baguio as the latter's mother told him about it. They were
able to sell the cassette recorder to Salvamante's aunt. They had
their meal and then went to visit accused Maqueda's brother. After
that occasion, he never saw accused Salvamante again. After his
Christmas vacation, he went back to work at the polvoron factory
until February 29, 1992. One of his co-workers Roselyn Merca, who
was a townmate of his asked him to accompany her home as she
was hard up in her work at the factory. Hence, he accompanied
Roselyn home to Guinyangan, Quezon. He was supposed to report
back for work on March 2, 1992 but he was not able to as he was
arrested by members of the CAFGU at the house of Roselyn Merca
when he brought her home. He was then brought to the
Guinyangan municipal jail, then to the Tuba Police Station, Tuba,
Benguet. There he was told to cooperate with the police in
arresting Salvamante so he would not stay long in the Province of
Benguet. He was also told that if he would point to accused
Salvamante, he would be freed and he could also become a state
witness. He told them that he could attest to the fact that he
accompanied accused Salvamante in selling the cassette
recorder. prLL
On March 5, 1992, he was brought to the Benguet Provincial Jail at
La Trinidad, Benguet where he has remained under detention up
to the present. 9
The prosecution rebutted the testimony of Hector Maqueda by presenting
Fredesminda Castrence and SPO3 Armando Molleno. Castrence, the owner of the
polvoron factory where Maqueda worked, testified that she started her business
only on 30 August 1991 and thus it was impossible for her to have hired Maqueda
on 5 July 1991. SPO3 Molleno declared that he informed Maqueda of his
constitutional rights before Maqueda was investigated and that Maqueda
voluntarily and freely gave his Sinumpaang Salaysay (Exhibit "LL"). 10

55

Although the trial court had doubts on the identification of Maqueda by

prosecution witnesses Teresita Mendoza Barker, Norie Dacara, and Julieta
Villanueva and thus disregarded their testimonies on this matter, it decreed a
conviction "based on the confession and the proof of corpus delicti" as well as on
circumstantial evidence. It stated thus:
Since we have discarded the positive identification theory of the
prosecution pinpointing accused Maqueda as the culprit, can we
still secure a conviction based on the confession and the proof
of corpus delicti as well as on circumstantial evidence?
In order to establish the guilt of the accused through circumstantial
evidence, the following requisites must be present: 1) there must be
more than one circumstance; 2) the facts from which the
inferences are derived are proved; and 3) the combination of all
the circumstances is such as to produce a conviction beyond
reasonable doubt (People vs. Pajarit, G.R. No. 82770, October 19,
1992, 214 SCRA 678). There must be an unbroken chain of
circumstances which leads to one fair and reasonable conclusion
pointing to the defendant to the exclusion of all others, as the
author of the crime (People vs. Abuyen, G.R. No. 77285, September
4, 1992, 213 SCRA 569).
The circumstances shown by the prosecution which tend to show
the guilt of the accused are:
1. A physical demonstration to which the accused and his
counsel did not offer any objection shows that despite his
being handicapped, accused Maqueda could well and
easily grip a lead pipe and strike a cement post with such
force that it produced a resounding vibration. It is not
farfetched then to conclude that accused Maqueda
could have easily beat Mr. Barker to death.
2. His presence within the vicinity of the crime scene right
after the incident in the company of accused
Salvamante was testified to by Mike Tayaban, the only
prosecution witness who noticed the defective hands of
the accused. As they had to ask for directions from the
witness in the Tagalog dialect shows that they were
strangers to the place.
3. Accused Maqueda knows or is familiar with accused
Rene Salvamante as they come from the same town. By
his own testimony, accused Maqueda has established
that he and Salvamante are close friends to the point
that they went out together during the Christmas
vacation in 1991 and he even accompanied Salvamante
in selling the black radio cassette recorder. LLjur

4. His Motion to Grant Bail (Exhibit "HH") contains this

statement "That he is willing and volunteering to be a
State witness in the above-entitled case, it appearing that
he is the least guilty among the accused in this case." This
in effect, supports his extrajudicial confession made to the
police at Calauag, Quezon Province. Although he claims
that he did not bother to read the motion as he was just
told that his signature would mean his release from
detention, this is a flimsy excuse which cannot be given
credence. Had he not understood what the motion
meant, he could have easily asked his sister and brotherin-law what it meant seeing that their signatures were
already fixed on the motion.
5. This time, his admission to Prosecutor Zarate that he was
at the Barker house that fateful morning and his even
more damaging admissions to Ray Dean Salvosa as to
what he actually did can be considered as another
circumstance to already bolster the increasing
circumstances against the accused.
6. The accused's defense is alibi. As stated in a long line of
cases, alibi is at best a weak defense and easy of
fabrication (People vs. Martinado, G.R. No. 92020,
October 19, 1992, 214 SCRA 712). For alibi to be given
credence, it must not only appear that the accused
interposing the same was at some other place but also
that it was physically impossible for him to be at the scene
of the crime at the time of its commission (People vs.
Pugal,G.R. No. 90637, October 29, 1992, 215 SCRA 247).
This defense easily crumbles down as prosecution witness
Mike Tayaban placed accused Maqueda at the vicinity
of the crime scene.
The combination of all these circumstances plus his extrajudicial
confession produce the needed proof beyond reasonable doubt
that indeed accused Maqueda is guilty of the crime. 11
The extrajudicial confession referred to is the Sinumpaang Salaysay (Exhibit "LL") of
Maqueda taken by SPO2 Molleno immediately after Maqueda was arrested.
Maqueda seasonably appealed to us his conviction. In his 14-page brief,
he pleads that we acquit him because the trial court committed this lone error:
. . . IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME CHARGED. 12
Only three pages of the brief, typed double space, are devoted to his arguments,
which are anchored on his alibi that at the time the crime was committed he was

56

not in Benguet but in Sukat, Muntinlupa, Metro Manila, and the failure of the star
witnesses for the prosecution to identify him. He alleges that Mrs. Barker, when
investigated at the hospital, pointed to Richard Malig as the companion of Rene
Salvamante, and that when initially investigated, the two housemaids gave a
description of Salvamante's companion that fitted Richard Malig.
We find no merit in this appeal. As hereinafter shown, the defense of alibi
is unconvincing.
The accused's arguments which stress the incredibility of the testimonies of
Mrs. Barker and the househelps identifying Maqueda are misdirected and
misplaced because the trial court had ruled that Mrs. Teresita Mendoza Barker and
the two housemaids, Norie Dacara and Julieta Villanueva, were not able to
positively identify Maqueda. The trial court based his conviction on his extrajudicial
confession and the proof of corpus delicti, as well as on circumstantial evidence.
He should have focused his attention and arguments on these. LibLex
From its ratiocinations, the trial court made a distinction between an
extrajudicial confession the Sinumpaang Salaysay and an extrajudicial
admission the verbal admissions to Prosecutor Zarate and Ray Dean Salvosa. A
perusal of the Sinumpaang Salaysay fails to convince us that it is an extrajudicial
confession. It is only an extrajudicial admission. There is a distinction between the
former and the latter as clearly shown in Sections 26 and 33, Rule 130 of the Rules of
Court which read as follows:
SEC. 26. Admission of a party. The act, declaration or omission of
party as to a relevant fact may be given in evidence against him.
xxx xxx xxx
SEC. 33. Confession. The declaration of an accused
acknowledging his guilt of the offense charged, or of any offense
necessarily included therein, may be given in evidence against
him.
In a confession, there is an acknowledgment of guilt. The term admission is
usually applied in criminal cases to statements of fact by the accused which do not
directly involve an acknowledgment of his guilt or of the criminal intent to commit
the offense with which he is charged. 13Wharton distinguishes a confession from an
admission as follows:

A confession is an acknowledgment in express terms, by a party in

a criminal case, of his guilt of the crime charged, while an
admission is a statement by the accused, direct or implied, of facts
pertinent to the issue and tending, in connection with proof of
other facts, to prove his guilt. In other words, an admission is
something less than a confession, and is but an acknowledgment

of some fact or circumstance which in itself is insufficient to

authorize a conviction and which tends only to establish the
ultimate fact of guilt. 14
And under Section 3 of Rule 133, an extrajudicial confession made by the accused
is not sufficient for conviction unless corroborated by evidence ofcorpus delicti.
The trial court admitted the Sinumpaang Salaysay of accused Maqueda
although it was taken without the assistance of counsel because it was of the
opinion that since an information had already been filed in court against him and
he was arrested pursuant to a warrant of arrest issued by the court, theSinumpaang
Salaysay was not, therefore, taken during custodial investigation. Hence, Section
12(1), Article III of the Constitution providing as follows:
SEC. 12. (1) Any person under investigation for the commission of
an offense shall have the right to be informed of his right to remain
silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of
counsel.
is not applicable, 15 i.e., the police investigation was "no longer within the ambit of
a custodial investigation." It heavily relied on People vs. Ayson 16where this Court
elucidated on the rights of a person under custodial investigation and the rights of
an accused after a case is filed in court. The trial court went on to state:
At the time of the confession, the accused was already facing
charges in court. He no longer had the right to remain silent and to
counsel but he had the right to refuse to be a witness and not to
have any prejudice whatsoever result to him by such refusal. And
yet, despite his knowing fully well that a case had already been
filed in court, he still confessed when he did not have to do so. 17
The trial court then held that the admissibility of the Sinumpaang
Salaysay should not be tested under the aforequoted Section 12(1), Article III of the
Constitution, but on the voluntariness of its execution. Since voluntariness is
presumed, Maqueda had the burden of proving otherwise, which he failed to do
and, hence, the Sinumpaang Salaysay was admissible against him. LexLib
As to the admissions made by Maqueda to Prosecutor Zarate and Ray
Dean Salvosa, the trial court admitted their testimony thereon only to prove the
tenor of their conversation but not to prove the truth of the admission because
such testimony was objected to as hearsay. It said:
In any case, it is settled that when testimony is presented to
establish not the truth but the tenor of the statement or the fact
that such statement was made, it is not hearsay (People vs.
Fule, G.R. No. 83027, February 28, 1992, 206 SCRA 652). 18

57

While we commend the efforts of the trial court to distinguish between the
rights of a person under Section 12(1), Article III of the Constitution andhis rights
after a criminal complaint or information had been filed against him, we cannot
agree with its sweeping view that after such filing an accused "no longer, [has] the
right to remain silent and to counsel but he [has] the right to refuse to be a witness
and not to have any prejudice whatsoever result to him by such refusal." If this were
so, then there would be a hiatus in the criminal justice process where an accused is
deprived of his constitutional rights to remain silent and to counsel and to be
informed of such rights. Such a view would not only give a very restrictive
application to Section 12(1); it would also diminish the said accused's rights
under Section 14(2) Article III of the Constitution.
The exercise of the rights to remain silent and to counsel and to be
informed thereof under Section 12(1), Article III of the Constitution are not confined
to that period prior to the filing of a criminal complaint or information but are
available at that stage when a person is "under investigation for the commission of
an offense." The direct and primary source of this Section 12(1) is the second
paragraph of Section 20, Article II of the 1973 Constitution which reads:
Any person under investigation for the commission of an offense
shall have the right to remain silent and to counsel, and to be
informed of such right . . .
The first sentence to which it immediately follows refers to the rights against selfincrimination reading:
No person shall be compelled to be a witness against himself.
which is now Section 17, Article III of the 1987 Constitution. The incorporation of the
second paragraph of Section 20 in the Bill of Rights of the 1973 Constitution was an
acceptance of the landmark doctrine laid down by the United States Supreme
Court in Miranda vs. Arizona. 19 In that case, the Court explicitly stated that the
holding therein "is not an innovation in our jurisprudence, but is an application of
principles long recognized and applied in other settings." It went on to state its
ruling:
Our holding will be spelled out with some specificity in the pages
which follow but briefly stated, it is this: the prosecution may not
use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the
use of procedural safeguards effective to secure the privilege
against self-incrimination. By custodial interrogation, we mean
questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom
of action in any significant way. As for the procedural safeguards
to be employed, unless other fully effective means are devised to
inform accused persons of their right of silence and to assure a
continuous opportunity to exercise it, the following measures are
required. Prior to any questioning the person must be warned that

he has a right to remain silent, that any statement he does make

may be used as evidence against him, and that he has a right to
the presence of an attorney, either retained or appointed. The
defendant may waive effectuation of these rights, provided the
waiver is made voluntarily, knowingly and intelligently. If, however,
he indicates in any manner and at any stage of the process that
he wishes to consult with an attorney before speaking there can
be no questioning. Likewise, if the individual is alone and indicates
in any manner that he does not wish to be interrogated, the police
may not question him. The mere fact that he may have answered
some question or volunteered some statements on his own does
not deprive him of the right to refrain from answering any further
inquiries until he has consulted with an attorney and thereafter
consents to be questioned. 20
It may be pointed out though that as formulated in the second
paragraph of the aforementioned Section 20, the word custodial, which was used
in Miranda with reference to the investigation, was excluded. In view thereof,
in Galman vs. Pamaran, 21 this Court aptly observed:
The fact that the framers of our Constitution did not choose to use
the term "custodial" by having it inserted between the words
"under'' and "investigation," as in fact the sentence opens with the
phrase "any person" goes to prove that they did not adopt in
toto the entire fabric of the Miranda doctrine. LexLib
Clearly then, the second paragraph of Section 20 has even broadened
the application of Miranda by making it applicable to the investigation for the
commission of an offense of a person not in custody. 22 Accordingly, as so
formulated, the second paragraph of Section 20 changed the rule adopted
inPeople vs. Jose 23 that the rights of the accused only begin upon arraignment.
Applying the second paragraph of Section 20, this Court laid down this rule
inMorales vs. Enrile: 24
7. At the time a person is arrested, it shall be the duty of the
arresting officer to inform him of the reason for the arrest and he
must be shown the warrant of arrest, if any. He shall be informed of
his constitutional rights to remain silent and to counsel, and that
any statement he might make could be used against him. The
person arrested shall have the right to communicate with his
lawyer, a relative, or anyone he chooses by the most expedient
means by telephone if possible or by letter or messenger. It
shall be the responsibility of the arresting officer to see to it that this
is accomplished. No custodial investigation shall be conducted
unless it be in the presence of counsel engaged by the person
arrested, by any person on his behalf, or appointed by the court
upon petition either of the detainee himself or by anyone on his
behalf. The right to counsel may be waived but the waiver shall not
be valid unless made with the assistance of counsel. Any statement
obtained in violation of the procedure herein laid down, whether

58

exculpatory or inculpatory, in whole or in part, shall be inadmissible

in evidence.
Note that the first sentence requires the arresting officer to inform the
person to be arrested of the reason for the arrest and show him "the warrant of
arrest, if any." The underscored phrase simply means that a case had been filed
against him in a court of either preliminary or original jurisdiction and that the court
had issued the corresponding warrant of arrest. From the foregoing, it is clear that
the right to remain silent and to counsel and to be informed thereof under the
second paragraph of Section 20 are available to a person at any time before
arraignment whenever he is investigated for the commission of an offense. This
paragraph was incorporated into Section 12(1), Article III of the present
Constitution with the following additional safeguards: (a) the counsel must be
competent and independent, preferably of his own choice, (b) if the party cannot
afford the services of such counsel, he must be provided with one, and (c) the
rights therein cannot be waived except in writing and in the presence of counsel.
Then, too, the right to be heard would be a farce if it did not include the
right to counsel. 25 Thus, Section 12(2), Article III of the present Constitutionprovides
that in all criminal prosecutions the accused shall "enjoy the right to be heard by
himself and counsel." In People vs. Holgado, 26 this Court emphatically declared:
One of the great principles of justice guaranteed by
our Constitution is that "no person shall be held to answer for a
criminal offense without due process of law", and that all accused
"shall enjoy the right to be heard by himself and counsel." In
criminal cases there can be no fair hearing unless the accused be
given an opportunity to be heard by counsel. The right to be heard
would be of little avail if it does not include the right to be heard by
counsel. Even the most intelligent or educated man may
have no skill in the science of the law, particularly in the rules of
procedure, and, without counsel, he may be convicted not
because he is guilty but because he does not know how to
establish his innocence. And this can happen more easily to
persons who are ignorant or uneducated. It is for this reason that
the right to be assisted by counsel is deemed so important that it
has become a constitutional right and it is so implemented that
under our rules of procedure it is not enough for the Court to
apprise an accused of his right to have an attorney, it is not
enough to ask him whether he desires the aid of an attorney, but it
is essential that the court should assign one de oficio for him if he so
desires and he is poor or grant him a reasonable time to procure
an attorney of his own.
It was therefore, wrong for the trial court to hold that Section 12(1), Article
III of the Constitution is strictly limited to custodial investigation and that it does not
apply to a person against whom a criminal complaint or information has already
been filed because after its filing he loses his right to remain silent and to counsel. If
we follow the theory of the trial court, then police authorities and other law
enforcement agencies would have a heyday in extracting confessions or

admissions from accused persons after they had been arrested but before they are
arraigned because at such stage the accused persons are supposedly not entitled
to the enjoyment of the rights to remain silent and to counsel. cdll
Once a criminal complaint or information is filed in court and the accused
is thereafter arrested by virtue of a warrant of arrest, he must be delivered to the
nearest police station or jail and the arresting officer must make a return of the
warrant to the issuing judge, 27 and since the court has already acquired
jurisdiction over his person, it would be improper for any public officer or law
enforcement agency to investigate him in connection with the commission of the
offense for which he is charged. If, nevertheless, he is subjected to such
investigation, then Section 12(1), Article III of theConstitution and the jurisprudence
thereon must be faithfully complied with.
The Sinumpaang Salaysay of Maqueda taken by SPO2 Molleno after the
former's arrest was taken in palpable violation of his rights under Section 12(1),
Article III of the Constitution. As disclosed by a reading thereof, Maqueda was not
even told of any of his constitutional rights under the said section. The statement
was also taken in the absence of counsel. Such uncounselled Sinumpaang
Salaysay is wholly inadmissible pursuant toparagraph 3, Section 12, Article III of the
Constitution which reads:
(3) Any confession or admission obtained in violation of this or
Section 17 hereof shall be inadmissible in evidence against him.
However, the extrajudicial admissions of Maqueda to prosecutor Zarate
and to Ray Dean Salvosa stand on a different footing. These are not governed by
the exclusionary rules under the Bill of Rights. Maqueda voluntarily and freely made
them to Prosecutor Zarate not in the course of an investigation, but in connection
with Maqueda's plea to be utilized as a state witness; and as to the other
admission, it was given to a private person. The provisions of the Bill of Rights are
primarily limitations on government, declaring the rights that exist without
governmental grant, that may not be taken away by government and that
government has the duty to protect; 28or restrictions on the power of government
found "not in the particular specific types of action prohibited, but in the general
principle that keeps alive in the public mind the doctrine that governmental power
is not unlimited." 29 They are the fundamental safeguards against aggressions of
arbitrary power, 30 or state tyranny and abuse of authority. In laying down the
principles of the government and fundamental liberties of the people, the
Constitution did not govern the relationships between individuals. 31
Accordingly, Maqueda's admissions to Ray Dean Salvosa, a private party,
are admissible in evidence against the former under Section 26, Rule 130 of the
Rules of Court. In Aballe vs. People, 32 this Court held that the declaration of an
accused expressly acknowledging his guilt of the offense may be given in
evidence against him and any person, otherwise competent to testify as a witness,
who heard the confession, is competent to testify as to the substance of what he
heard if he heard and understood it. The said witness need not repeat verbatim the
oral confession; it suffices if he gives its substance. By analogy, that rule applies to
oral extrajudicial admissions.

59

To be added to Maqueda's extrajudicial admission is his Urgent Motion for

Bail wherein he explicitly stated that "he is willing and volunteering to be a state
witness in the above entitled case, it appearing that he is the least guilty among
the accused in this case."
In the light of his admissions to Prosecutor Zarate and Ray Dean Salvosa
and his willingness to be a state witness, Maqueda's participation in the commission
of the crime charged was established beyond moral certainty. His defense of alibi
was futile because by his own admission he was not only at the scene of the crime
at the time of its commission, he also admitted his participation therein. Even if we
disregard his extrajudicial admissions to Prosecutor Zarate and Salvosa, his guilt was,
as correctly ruled by the trial court, established beyond doubt by circumstancial
evidence. The following circumstances were duly proved in this case:
(1) He and a companion were seen a kilometer away from the
Barker house an hour after the crime in question was
committed there;
(2) Rene Salvamante, who is still at large, was positively identified
by Mrs. Barker, Norie Dacara, and Julieta Villanueva as
one of two persons who committed the crime;
(3) He and co-accused Rene Salvamante are friends;

hypothesis that the accused is guilty, and at the same time inconsistent with any
other hypothesis except that of guilty. 33 We do not hesitate to rule that all the
requisites of Section 2, Rule 133 of the Rules of Court are present in this case. cdphil
This conclusion having been reached, the defense of alibi put up by the
appellant must fail. The trial court correctly rejected such defense. The rule is settled
that for the defense of alibi to prosper, the requirements of time and place must be
strictly met. It is not enough to prove that the accused was somewhere else when
the crime was committed, he must demonstrate that it was physically impossible for
him to have been at the scene of the crime at the time of its
commission. 34 Through the unrebutted testimony of Mike Tayaban, which
Maqueda does not controvert in his brief, it was positively established that
Maqueda and a companion were seen at 7:00 a.m. of 27 August 1991 at the
waiting shed in Aguyad, Tuba, Benguet, a place barely a kilometer away from the
house of the Barkers. It was not then impossible for Maqueda and his companion to
have been at the Barker house at the time the crime was committed. Moreover,
Fredisminda Castrence categorically declared that Maqueda started working in
her polvoron factory in Sukat only on 7 October 1991, thereby belying his testimony
that he started working on 5 July 1991 and continuously until 27 August 1991.
WHEREFORE, in view of the foregoing, the instant appeal is DISMISSED and
the appealed decision of Branch 10 of the Regional Trial Court of Benguet in
Criminal Case No. 91-CR-1206 is AFFIRMED in toto. LLphil

(4) He and Rene Salvamante were together in Guinyangan,

Quezon, and both left the place sometime in September
1991;

Costs against accused-appellant HECTOR MAQUEDA @ PUTOL.

(5) He was arrested in Guinyangan, Quezon, on 4 March 1992; and

Padilla, Bellosillo, Quiason and Kapunan, JJ., concur.

(6) He freely and voluntarily offered to be a state witness stating

that "he is the least guilty."
Section 4, rule 133 of the Rules of Court provides that circumstantial
evidence is sufficient for conviction if:
(a) There is more than one circumstance;
(b) The facts from which the inferences are derived are proven;
and
(c) The combination of all the circumstances is such as to produce
a conviction beyond reasonable doubt.

SO ORDERED.

||| (People v. Maqueda, G.R. No. 112983, [March 22, 1995], 312 PHIL 646-678)

12- Zulueta v. Court of Appeals, 253 SCRA 699

SECOND DIVISION
[G.R. No. 107383. February 20, 1996.]
CECILIA ZULUETA, petitioner, vs. COURT OF APPEALS and ALFREDO
MARTIN, respondents.
Leonides S. Respicio & Associates Law Office for petitioner.

Or, as jurisprudentially formulated, a judgment of conviction based on

circumstantial evidence can be upheld only if the circumstances proved constitute
an unbroken chain which leads to one fair and reasonable conclusion which points
to the accused, to the exclusion of all others, as the guilty person, i.e., the
circumstances proved must be consistent with each other, consistent with the

Galileo P. Brion for private respondent.

DECISION

60

MENDOZA, J p:
This is a petition to review the decision of the Court of Appeals, affirming the decision of
the Regional Trial Court of Manila (Branch X) which ordered petitioner to return
documents and papers taken by her from private respondent's clinic without the latter's
knowledge and consent.
The facts are as follows:
Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26,
1982, petitioner entered the clinic of her husband, a doctor of medicine, and in the
presence of her mother, a driver and private respondent's secretary, forcibly opened
the drawers and cabinet in her husband's clinic and took 157 documents consisting of
private correspondence between Dr. Martin and his alleged paramours, greeting cards,
cancelled checks, diaries, Dr. Martin's passport, and photographs. The documents and
papers were seized for use in evidence in a case for legal separation and for
disqualification from the practice of medicine which petitioner had filed against her
husband.

Dr. Martin brought this action below for recovery of the documents and papers and for
damages against petitioner. The case was filed with the Regional Trial Court of Manila,
Branch X, which, after trial, rendered judgment for private respondent, Dr. Alfredo
Martin, declaring him "the capital/exclusive owner of the properties described in
paragraph 3 of plaintiff's Complaint or those further described in the Motion to Return
and Suppress" and ordering Cecilia Zulueta and any person acting in her behalf to
immediately return the properties to Dr. Martin and to pay him P5,000.00, as nominal
damages; P5,000.00, as moral damages and attorney's fees; and to pay the costs of the
suit. The writ of preliminary injunction earlier issued was made final and petitioner Cecilia
Zulueta and her attorneys and representatives were enjoined from "using or
submitting/admitting as evidence" the documents and papers in question. On appeal,
the Court of Appeals affirmed the decision of the Regional Trial Court. Hence this
petition.
There is no question that the documents and papers in question belong to private
respondent, Dr. Alfredo Martin, and that they were taken by his wife, the herein
petitioner, without his knowledge and consent. For that reason, the trial court declared
the documents and papers to be properties of private respondent, ordered petitioner to
return them to private respondent and enjoined her from using them in evidence. In
appealing from the decision of the Court of Appeals affirming the trial court's decision,
petitioner's only ground is that in Alfredo Martin v. Alfonso Felix, Jr., 1 this Court ruled that
the documents and papers (marked as Annexes A-1 to J-7 of respondent's comment in
that case) were admissible in evidence and, therefore, their use by petitioner's attorney,
Alfonso Felix, Jr., did not constitute malpractice or gross misconduct. For this reason it is
contended that the Court of Appeals erred in affirming the decision of the trial court
instead of dismissing private respondent's complaint.

Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for disbarment.
Among other things, private respondent, Dr. Alfredo Martin, as complainant in that
case, charged that in using the documents in evidence, Atty. Felix, Jr. committed
malpractice or gross misconduct because of the injunctive order of the trial court. In
dismissing the complaint against Atty. Felix, Jr., this Court took note of the following
defense of Atty. Felix, Jr. which it found to be "impressed with merit:" 2
On the alleged malpractice or gross misconduct of respondent
[Alfonso Felix, Jr.], he maintains that:
xxx xxx xxx
4. When respondent refiled Cecilia's case for legal separation
before the Pasig Regional Trial Court, there was admittedly an
order of the Manila Regional Trial Court prohibiting Cecilia from
using the documents Annex "A-1 to J-7." On September 6, 1983,
however having appealed the said order to this Court on a petition
for certiorari, this Court issued a restraining order on aforesaid date
which order temporarily set aside the order of the trial court.
Hence, during the enforceability of this Court's order, respondent's
request for petitioner to admit the genuineness and authenticity of
the subject annexes cannot be looked upon as malpractice.
Notably, petitioner Dr. Martin finally admitted the truth and
authenticity of the questioned annexes. At that point in time,
would it have been malpractice for respondent to use petitioner's
admission as evidence against him in the legal separation case
pending in the Regional Trial Court of Makati? Respondent submits
it is not malpractice.
Significantly, petitioner's admission was done not thru his counsel
but by Dr. Martin himself under oath. Such verified admission
constitutes an affidavit, and, therefore, receivable in evidence
against him. Petitioner became bound by his admission. For Cecilia
to avail herself of her husband's admission and use the same in her
action for legal separation cannot be treated as malpractice.
Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to nomore than a
declaration that his use of the documents and papers for the purpose of securing Dr.
Martin's admission as to their genuineness and authenticity did not constitute a violation
of the injunctive order of the trial court. By no means does the decision in that case
establish the admissibility of the documents and papers in question.
It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of
violating the writ of preliminary injunction issued by the trial court, it was only because,
at the time he used the documents and papers, enforcement of the order of the trial
court was temporarily restrained by this Court. The TRO issued by this Court was
eventually lifted as the petition for certiorari filed by petitioner against the trial court's
order was dismissed and, therefore, the prohibition against the further use of the
documents and papers became effective again.

61

Indeed the documents and papers in question are inadmissible in evidence. The
constitutional injunction declaring "the privacy of communication and correspondence
[to be] inviolable" 3 is no less applicable simply because it is the wife (who thinks herself
aggrieved by her husband's infidelity) who is the party against whom the constitutional
provision is to be enforced. The only exception to the prohibition in the Constitution is if
there is a "lawful order [from a] court or when public safety or order requires otherwise,
as prescribed by law." 4 Any violation of this provision renders the evidence obtained
inadmissible "for any purpose in any proceeding." 5
The intimacies between husband and wife do not justify any one of them in breaking
the drawers and cabinets of the other and in ransacking them for any telltale evidence
of marital infidelity. A person, by contracting marriage, does not shed his/her integrity or
his right to privacy as an individual and the constitutional protection is ever available to
him or to her.
The law insures absolute freedom of communication between the spouses by making it
privileged. Neither husband nor wife may testify for or against the other without the
consent of the affected spouse while the marriage subsists. 6Neither may be examined
without the consent of the other as to any communication received in confidence by
one from the other during the marriage, save for specified exceptions. 7 But one thing is
freedom of communication; quite another is a compulsion for each one to share what
one knows with the other. And this has nothing to do with the duty of fidelity that each
owes to the other.
WHEREFORE, the petition for review is DENIED for lack of merit.
SO ORDERED.
Regalado, Romero and Puno, JJ., concur.
||| (Zulueta v. Court of Appeals, G.R. No. 107383, [February 20, 1996], 324 PHIL 63-69)

13- Waterous Drug Corp. v. NLRC, 280 SCRA 735

FIRST DIVISION
[G.R. No. 113271. October 16, 1997.]
WATEROUS DRUG CORPORATION and MS. EMMA CO,petitioners, vs.
NATIONAL LABOR RELATIONS COMMISSION and ANTONIA MELODIA
CATOLICO, respondents.
Atty. D.P. Mercado & Associates for petitioners.
The Solicitor General for respondents.

IHCSD E C I S I O N
DAVIDE, JR., J p:
"Nor is he a true Servant [who] buys dear to share in the Profit with
the Seller." 1
This petition for certiorari under Rule 65 of the Rules of Court seeks to declare private
respondent Antonia Melodia Catolico (hereafter Catolico) not a "true Servant," thereby
assailing the 30 September 1993 decision 2 and 2 December 1993 Resolution 3 of the
National Labor Relations Commission (NLRC) in NLRC-NCR CA No. 005160-93, which
sustained the reinstatement and monetary awards in favor of private respondent 4 and
denied the petitioner's motion for reconsideration. 5
The facts are as follows:
Catolico was hired as a pharmacist by petitioner Waterous Drug Corporation (hereafter
WATEROUS) on 15 August 1988.
On 31 July 1989, Catolico received a memorandum 6 from WATEROUS Vice PresidentGeneral Manager Emma R. Co warning her not to dispense medicine to employees
chargeable to the latter's accounts because the same was a prohibited practice. On
the same date, Co issued another memorandum 7 to Catolico warning her not to
negotiate with suppliers of medicine without consulting the Purchasing Department, as
this would impair the company's control of purchases and, besides she was not
authorized to deal directly with the suppliers.
As regards the first memorandum, Catolico did not deny her responsibility but explained
that her act was "due to negligence," since fellow employee Irene Soliven "obtained the
medicines in bad faith and through misrepresentation when she claimed that she was
given a charge slip by the Admitting Dept." Catolico then asked the company to look
into the fraudulent activities of Soliven.8
In a memorandum 9 dated 21 November 1989, WATEROUS Supervisor Luzviminda E.
Bautro warned Catolico against the "rush delivery of medicines without the proper
documents."
On 29 January 1990, WATEROUS Control Clerk Eugenio Valdez informed Co that he
noticed an irregularity involving Catolico and Yung Shin Pharmaceuticals, Inc. (hereafter
YSP), which he described as follows:
. . . A case in point is medicine purchased under our Purchase
Order (P.O.) No. 19045 with YSP Sales Invoice No. 266 representing
purchase of ten (10) bottles of Voren tablets at P384.00 per unit.
Previous P.O.'s issued to YSP, Inc. showed that the price per bottle is
P320.00 while P.O.No. 19045 is priced at P384.00 or an over price of
P64.00 per bottle (or total of P640.00). WDRC paid the amount of
P3,840.00 thru MBTC CheckNo. 222832 dated December 15, 1988,
Verification was made to YSP, Inc. to determine the discrepancy

62

and it was found that the cost per bottle was indeed overpriced.
YSP, Inc. Accounting Department (Ms. Estelita Reyes) confirmed
that the difference represents refund of jack-up price of ten bottles
of Voren tablets per sales invoice no. 266 as per their check
voucher no. 629552 (shown to the undersigned), which was paid to
Ms. Catolico through China Bank check no. 892068 dated
November 9, 1989 . . .
The undersigned talked to Ms. Catolico regarding the check but
she denied having received it and that she is unaware of the
overprice. However, upon conversation with Ms. Saldana, EDRC
Espana Pharmacy Clerk, she confirmed that the check amounting
to P640.00 was actually received by Ms. Catolico. As a matter of
fact, Ms. Catolico even asked Ms. Saldana if she opened the
envelope containing the check but Ms. Saldana answered her
"talagang ganyan, bukas." It appears that the amount in question
(P640.00) had been pocketed by Ms. Catolico. 10 aisadc
Forthwith, in her memorandum 11 dated 31 January 1990, Co asked Catolico
to explain, within twenty-four hours, her side of the reported irregularity.
Catolico asked for additional time to give her explanation, 12 and she was
granted a 48-hour extension from 1 to 3 February 1990. However, on 2 February
1990, she was informed that effective 6 February 1990 to 7 March 1990, she
would be placed on preventive suspension to protect the interests of the
company. 13
In a letter dated 2 February 1990, Catolico requested access to the file containing Sales
Invoice No. 266 for her to be able to make a satisfactory explanation. In said letter she
protested Saldaa's invasion of her privacy when Saldaa opened an envelope
addressed to Catolico. 14
In a letter 15 to Co dated 10 February 1990, Catolico, through her counsel, explained
that the check she received from YSP was a Christmas gift and not a "refund of
overprice." She also averred that the preventive suspension was ill-motivated, as it
sprang from an earlier incident between her and Co's secretary, Irene Soliven.
On 5 March 1990, WATEROUS Supervisor Luzviminda Bautro, issued a
memorandum 16 notifying Catolico of her termination; thus:
We received your letter of explanation and your lawyer's letter
dated Feb. 2, 1990 and Feb. 10, 1990 respectively regarding our
imposition of preventive suspension on you for acts of dishonesty.
However, said letters failed to rebut the evidences [sic] in our
possession which clearly shows that as a Pharmacist stationed at
Espana Branch, you actually made Purchase Orders at YSP Phils.,
Inc. for 10 bottles of Voren tablets at P384.00/bottle with previous
price of P320.00/bottle only. A check which you received in the
amount of P640.00 actually represents the refund of over price of

said medicines and this was confirmed by Ms. Estelita Reyes, YSP
Phils., Inc. Accounting Department.
Your actuation constitutes an act of dishonesty detrimental to the
interest of the company. Accordingly, you are hereby terminated
effective March 8, 1990.
On 5 May 1990, Catolico filed before the Office of the Labor Arbiter a complaint for
unfair labor practice, illegal dismissal, and illegal suspension. 17
In his decision 18 of 10 May 1993, Labor Arbiter Alex Arcadio Lopez found noproof of
unfair labor practice against petitioners. Nevertheless, he decided in favor of Catolico
because petitioners failed to "prove what [they] alleged as complainant's dishonesty,"
and to show that any investigation was conducted. Hence, the dismissal was without
just cause and due process. He thus declared the dismissal and suspension illegal but
disallowed reinstatement, as it would not be to the best interest of the parties.
Accordingly, he awarded separation pay to Catolico computed at one-half month's
pay for every year of service; back wages for one year; and the additional sum of
P2,000.00 for illegal suspension "representing 30 days work." Arbiter Lopez computed the
award in favor of Catolico as follows:
30 days Preventive Suspension P2,000.00
Backwages 26,858.50
1/12 of P26,858.50 2,238.21
Separation pay (3 years) 4,305.15

TOTAL AWARD: P35,401.86

Petitioners seasonably appealed from the decision and urged the NLRC to set it aside
because the Labor Arbiter erred in finding that Catolico was denied due process and
that there was no just cause to terminate her services.
In its decision 19 of 30 September 1993, the NLRC affirmed the findings of the Labor
Arbiter on the ground that petitioners were not able to prove a just cause for Catolico's
dismissal from her employment. It found that petitioner's evidence consisted only of the
check of P640.00 drawn by YSP in favor of complainant, which her co-employee saw
when the latter opened the envelope. But, it declared that the check was inadmissible
in evidence pursuant to Sections 2 and 3(1 and 2) of Article III of the Constitution. 20 It
concluded:
With the smoking gun evidence of respondents being rendered
inadmissible, by virtue of the constitutional right invoked by

63

complainants, respondents' case falls apart as it is bereft of

evidence which cannot be used as a legal basis for complainant's
dismissal.
The NLRC then dismissed the appeal for lack of merit, but modified the dispositive
portion of the appealed decision by deleting the award for illegal suspension as the
same was already included in the computation of the aggregate of the awards in the
amount of P35,401.86.
Their motion for reconsideration having been denied, petitioners filed this special
civil action for certiorari, which is anchored on the following grounds:
I. Public respondent committed grave abuse of discretion in its
finding of facts.
II. Due process was duly accorded to private respondent.
III. Public respondent gravely erred in applying Section 3, Article III
of the 1987 Constitution.
As to the first and second grounds, petitioners insist that Catolico had
been receiving "commissions" from YSP, or probably from other suppliers, and that
the check issued to her on 9 November 1989 was not the first or the last. They also
maintained that Catolico occupied a confidential position and that Catolico's
receipt of YSP's check, aggravated by her "propensity to violate company rules,"
constituted breach of confidence. And contrary to the findings of NLRC, Catolico
was given ample opportunity to explain her side of the controversy.
Anent the third ground, petitioners submit that, in light of the decision in thePeople
v. Marti, 21 the constitutional protection against unreasonable searches and seizures
refers to the immunity of one's person from interference by government and cannot be
extended to acts committed by private individuals so as to bring it within the ambit of
alleged unlawful intrusion by the government.
In its Manifestation in Lieu of Comment, the Office of the Solicitor General (OSG)
disagreed with the NLRC's decision, as it was of the persuasion that (a) the conclusions
reached by public respondent are inconsistent with its findings of fact; and (b) the
incident involving the opening of envelope addressed to private respondent does not
warrant the application of the constitutional provisions. It observed that Catolico was
given "several opportunities" to explain her side of the check controversy, and
concluded that the opportunities granted her and her subsequent explanation "satisfy
the requirements of just cause and due process." The OSG was also convinced that
Catolico's dismissal was based on just cause and that Catolico's admission of the
existence of the check, as well as her "lame excuse" that it was Christmas gift from YSP,
constituted substantial evidence of dishonesty. Finally, the OSG echoed petitioners'
argument that there was no violation of the right of privacy of communication in this
case, 22 adding that petitioner WATEROUS was justified in opening an envelope from
one of its regular suppliers as it could assume that the letter was a business
communication in which it had an interest.

In its Comment which we required to be filed in view of the adverse stand of the OSG,
the NLRC contends that petitioners miserably failed to proved their claim that it
committed grave abuse of discretion in its findings of fact. It then prays that we dismiss
this petition. cda
In her Comment, Catolico assets that petitioners' evidence is too "flimsy" to justify her
dismissal. The check in issue was given to her, and she had no duty to turn it over to her
employer. Company rules do not prohibit an employee from accepting gifts from
clients, and there is no indication in the contentious check that it was meant as a refund
for overpriced medicines. Besides, the check was discovered in violation of the
constitutional provision on the right to privacy and communication; hence, as correctly
held by the NLRC, it was inadmissible in evidence.
Catolico likewise disputes petitioners' claim that the audit report and her initial response
that she never received a check were sufficient to justify her dismissal. When she denied
having received a check from YSP, she meant that she did not receive any refund of
overprice, consistent with her position that what she received was a token gift. All that
can be gathered from the audit report is that there was apparently an overcharge,
with no basis to conclude that Catolico pocketed the amount in collusion with YSP. She
thus concluded that her dismissal was based on a mere suspicion.
Finally, Catolico insists that she could not have breached the trust and confidence of
WATEROUS because, being merely a pharmacist, she did not handle "confidential
information or sensitive properties." She was doing the task of a saleslady: selling drugs
and making requisitions when supplies were low.
A thorough review of the record leads us to no other conclusion than that, except as to
the third ground, the instant petition must fail.
Concededly, Catolico was denied due process. Procedural due process requires that
an employee be apprised of the charge against him, given reasonable time to answer
the charge, allowed amply opportunity to be heard and defend himself, and assisted
by a representative if the employee so desires. 23 Ample opportunity connotes every
kind of assistance that management must accord the employee to enable him to
prepare adequately for his defense, including legal representation. 24
In the case at bar, although Catolico was given an opportunity to explain her side, she
was dismissed from the service in the memorandum of 5 March 1990 issued by her
Supervisor after receipt of her letter and that of her counsel. Nohearing was ever
conducted after the issues were joined through said letters. The Supervisor's
memorandum spoke of "evidences [sic] in [WATEROUS] possession," which were not,
however, submitted. What the "evidences" [sic] other than the sales invoice and the
check were, only the Supervisor knew.
Catolico was also unjustly dismissed. It is settled that the burden is on the employer to
prove just and valid cause for dismissing an employee, and its failure to discharge that
burden would result in a finding that the dismissal is unjustified. 25 Here, WATEROUS
proved unequal to the task.

64

It is evident from the Supervisor's memorandum that Catolico was dismissed because of
an alleged anomalous transaction with YSP. Unfortunately for petitioners, their evidence
does not establish that there was an overcharge. Control Clerk Eugenio C. Valdez, who
claims to have discovered Catolico's inappropriate transaction, stated in his affidavit: 26
4. My findings revealed that on or before the month of July 31,
1989, Ms. Catolico in violation of the [company] procedure, made
an under the table deal with YSP Phils. to supply WDRC needed
medicines like Voren tablets at a jack-up price of P384.00 per
bottle of 50 mg. which has a previous price of only P320.00;
5. I verified the matter to YSP Phils. to determine the discrepancy
and I found out that the cost per bottle was indeed overpriced.
The Accounting Department of YSP Phils. through Ms. Estelita Reyes
confirmed that there was really an overprice and she said that the
difference was refunded through their check voucher no. 629552
which was shown to me and the payee is Melodia Catolico,
through a China Bank Check No. 892068 dated November 9, 1989.
It clearly appears then that Catolico's dismissal was based on hearsay information.
Estelita Reyes never testified nor executed an affidavit relative to this case; thus, we
have to reject the statements attributed to her by Valdez. Hearsay evidence
carries no probative value. 27
Besides, it was never shown that petitioners paid for the Voren tablets. While Valdez
informed Co, through the former's memorandum 28 of 29 January 1990, that
WATEROUS paid YSP P3,840.00 "thru MBTC Check No. 222832," the said check was
never presented in evidence, nor was any receipt from YSP offered by
petitioners. cdrep
Moreover, the two purchase orders for Voren tablets presented by petitioners do not
indicate an overcharge. The purchase order dated 16 August 1989 29stated that the
Voren tablets cost P320.00 per box, while the purchase order dated 5 October
1989 30 priced the Voren tablets at P384.00 per bottle. The difference in price may then
be attributed to the different packaging used in each purchase order.

Catolico's dismissal then was obviously grounded on mere suspicion, which inno case
can justify an employee's dismissal. Suspicion is not among the valid causes provided by
the Labor Code for the termination of employment; 31 and even the dismissal of an
employee for loss of trust and confidence must rest on substantial grounds and not on
the employer's arbitrariness, whims, caprices, or suspicion. 32 Besides, Catolico was not
shown to be a managerial employee, to which class of employees the term "trust and
confidence" is restricted. 33
As regards the constitutional violation upon which the NLRC anchored its decision, we
find no reason to revise the doctrine laid down in People vs. Marti34 that the Bill of Rights
does not protect citizens from unreasonable searches and seizures perpetrated by
private individuals. It is not true, as counsel for Catolico claims, that the citizens
have no recourse against such assaults. On the contrary, and as said counsel admits,
such an invasion gives rise to both criminal and civil liabilities.
Finally, since it has been determined by the Labor Arbiter that Catolico's reinstatement
would not be to the best interest of the parties, he correctly awarded separation pay to
Catolico. Separation pay in lieu of reinstatement is computed at one month's salary for
every year of service. 35 In this case, however, Labor Arbiter Lopez computed the
separation pay at one-half month's salary for every year of service. Catolico did not
oppose or raise an objection. As such, we will uphold the award of separation pay as
fixed by the Labor Arbiter.
WHEREFORE, the instant petition is hereby DISMISSED and the challenged decision and
resolution of the National Labor Relations Commission dated 30 September 1993 and 2
December 1993, respectively, in NLRC-NCR CA No. 005160-93 are AFFIRMED, except as
to its reason for upholding the Labor Arbiter's decision, viz., that the evidence against
private respondent was inadmissible for having been obtained in violation of her
constitutional rights of privacy of communication and against unreasonable searches
and seizures which is hereby set aside.
Costs against petitioners.
SO ORDERED.
Bellosillo, Vitug, Kapunan and Hermosisima, Jr., JJ ., concur.

Assuming that there was an overcharge, the two purchase orders for the Voren tablets
were recommended by Director-MMG Mario R. Panuncio, verified by AVP-MNG Noli M.
Lopez and approved by Vice President-General Manager Emma R. Co. The purchase
orders were silent as to Catolico's participation in the purchase. If the price increase was
objectionable to petitioners, they or their officers should have disapproved the
transaction. Consequently, petitioners hadno one to blame for their predicament but
themselves. This set of facts emphasizes the exceedingly incredible situation proposed
by petitioners. Despite the memorandum warning Catolico not to negotiate with
suppliers of medicine, there was no proof that she ever transacted, or that she had the
opportunity to transact, with the said suppliers. Again, as the purchase orders indicate,
Catolico was not at all involved in the sale of the Voren tablets. There was no occasion
for Catolico to initiate, much less benefit from, what Valdez called an "under the table
deal" with YSP.

||| (Waterous Drug Corp. v. National Labor Relations Commission, G.R. No. 113271,
[October 16, 1997], 345 PHIL 983-997)

14- Bon v. People, G.R. No. 152160, 13 January 2004

FIRST DIVISION
[G.R. No. 152160. January 13, 2004.]

65

VIRGILIO BON, petitioner, vs. PEOPLE OF THE

PHILIPPINES,respondent.
DECISION
PANGANIBAN, J p:
Testimony of what one heard a party say is not necessarily hearsay. It is admissible in
evidence, not to show that the statement was true, but that it was in fact made. If
credible, it may form part of the circumstantial evidence necessary to convict the
accused.
The Case
Before us is a Petition for Review 1 under Rule 45 of the Rules of Court, seeking to nullify
the August 22, 2001 Decision 2 and the February 15, 2002 Resolution 3of the Court of
Appeals (CA) in CA-GR CR No. 15673. The dispositive part of the assailed Decision reads
as follows:
"WHEREFORE, the Decision dated August 23, 1993 convicting
[Petitioner] Virgilio Bon is hereby AFFIRMED with modification on the
penalty in that [petitioner] is sentenced to suffer an indeterminate
penalty of imprisonment ranging from ten (10) years of prision
mayor, as minimum to fourteen (14) years [and] eight (8) months
of reclusion temporal, as maximum. Accused-appellant Alejandro
Jeniebre, Jr. is hereby ACQUITTED." 4
The assailed Resolution, on the other hand, denied petitioner's Motion for
Reconsideration.
The Antecedents
The antecedents are summarized by the CA as follows:
"[Petitioner] Virgilio Bon and Alejandro Jeniebre, Jr. were charged
for violating Section 68 of PD 705, as amended[,] together with
Rosalio Bon under an Information, the accusatory portion of which
reads as follows:
'That sometime in the month of January or February, 1990,
at Barangay Basud, Municipality of Sorsogon, Province of
Sorsogon, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then
and there, willfully, unlawfully and feloniously, conspiring,
confederating and mutually helping one another, cut,
gather and manufacture into lumber four (4) narra trees,
one (1) cuyao-yao tree, and one (1) amugis tree, with an
approximate volume of 4,315 bd. ft. and valued at
approximately P25,000.00, without the knowledge and

consent of the owner Teresita Dangalan-Mendoza and

without having first obtained from proper authorities the
necessary permit or license and/or legal supporting
documents, to the damage and prejudice of the
Government and the owner in the aforementioned
amount of P25,000.00.
'Contrary to law.'
"Upon arraignment on May 16, 1991, [Petitioner] Virgilio Bon[,]
Alejandro Jeniebre, Jr. and Rosalio Bon entered a plea of 'Not
Guilty' to the crime charged. Thereafter, the trial of the case
proceeded. The prosecution presented Nestor Labayan[e],
[Private Complainant] Teresita Dangalan-Mendoza, [Barangay]
Tanod Julian Lascano, Alexander Mendones [and] Manuel
Dangalan as its witnesses. The defense, on the other hand,
presented accused Alejandro Jeniebre, Jr., Rosalio Bon and Virgilio
Bon. SEACTH
"The evidence for the prosecution [w]as synthesized by the trial
court, as follows:
'Prosecution's evidence was supplied by Julian Lascano,
Oscar Narvaez, Alexander Mendones, Manuel Dangalan,
Nestor Labayan[e] and Teresita [Dangalan-Mendoza]
which shows that Teresita [Dangalan-Mendoza] owns a
titled agricultural land under Title No. 6666 located in
Basud, Sorsogon, Sorsogon, administered by Virgilio Bon.
Receiving information that trees inside the land were
being stolen, cut [and] sawed into lumber by her
administrator and/or workers, she sent her brother Manuel
Dangalan to investigate the report. On February 7, 1990,
Manuel Dangalan sought the help of Barangay Captain
Nestor Labayane, who in turn wrote a letter to one of the
[b]arangay [t]anod[s], Julian Lascano, to assist and
investigate Teresita [Dangalan-Mendoza's] complaint of
Illegal Cutting of Trees. On February 12, 1990, together
with Julian Lascano, Manuel Dangalan, Ricardo
Valladolid, Natividad Legaspi and Virgilio Bon repaired to
the land of Teresita [Dangalan-Mendoza]. During their
investigation, the group discovered six (6) stumps of
trees[:] four (4) Narra trees, one cuyao-yao tree and one
am[u]gis tree. Pictures were taken of the stumps . . .. On
the land, Virgilio Bon admitted ordering the cutting and
sawing of the trees into lumber. Oscar Narvaez testified
that sometime in January, 1990, he sawed the trees into
six flitches upon instruction of Alejandro Jeniebre, Jr.;
Alexander Mendones, CENRO Officer, upon complaint of
Teresita [Dangalan-Mendoza] for Illegal Cutting of Trees
repaired to the land on July 17, 1990, and found four

66

stumps of trees. Scaling the four stumps, it was his estimate

that the lumber produced was 11.97 cubic meters o[r]
4,315 board feet, with a value of P25,376.00 . . ..'
"In their defense, all the three accused took the witness stand and
denied the accusation. Their testimonies were summarized by the
trial court, as follows:
'All the accused testified in their defense. Rosalio Bon, the
son of Virgilio Bon denied the charge[.] [He said] that he
was in Manila from December 1989 and returned to
Sorsogon on March 21, 1990. He mentioned that the
purpose of filing this case was to eject his father as tenant
of the land. IcHTCS
'Virgilio Bon testified that he is the tenant of the land of
Teresita [Dangalan-Mendoza] [and was] instituted [as
such] by Teresita's father. He developed the land[,]
planting coconuts, abaca and fruit trees. Teresita
[Dangalan-Mendoza] wanted to eject him as tenant. He
and the private complainant [have] an agrarian case.
Since Teresita [Dangalan-Mendoza] refused to receive
the landowner's share of produce, he deposited the
money in the Rural Bank of Sorsogon in the name of
Teresita [Dangalan-Mendoza] . . .. He denied cutting and
gathering the trees in the land and pointed to Teresita
[Dangalan-Mendoza] as the one who ordered the trees
[to be cut] and sawed by Oscar Narvaez. Teresita
[Dangalan-Mendoza] upon being confronted about the
cutting of trees, ignored his complaint.
'Alejandro Jeniebre, Jr., son-in-law of Virgilio Bon, denied
that he hired Oscar Narvaez to saw the lumber. Oscar
Narvaez [indicted] him of the crime because the former
had a grudge against him. In a drinking spree, he
happened to box Oscar Narvaez[,] after [which he]
heard [the latter threaten him with] revenge.'
"On August 23, 1993, the trial court rendered its decision convicting
[Petitioner] Virgilio Bon and Alejandro Jeniebre, Jr. for the crime
charged. Co-accused Rosalio Bon was acquitted. Aggrieved by
the said decision, [Petitioner] Virgilio Bon and Alejandro Jeniebre,
Jr. interposed [an] appeal [to the CA]." 5
In their appeal to the CA, petitioner and Jeniebre questioned the prosecution witnesses'
credibility and the sufficiency of the evidence proving their guilt.
Ruling of the Court of Appeals

The CA sustained the trial court's assessment of the credibility of Prosecution Witnesses
Julian Lascano and Manuel Dangalan. Both testified that petitioner had admitted to
having ordered the cutting of trees on Teresita Dangalan-Mendoza's land.
Furthermore, the appellate court held that despite the absence of direct evidence in
this case, the circumstantial evidence was sufficient to convict petitioner. It ruled that
the requirements for the sufficiency of the latter type of evidence under Section 4 of
Rule 133 6 of the Rules of Court were amply satisfied by the following established facts:
1) in the presence of Dangalan, Lascano and Natividad Legaspi, petitioner admitted
that he had ordered the cutting of the trees; 2) on February 12, 1990, he and his son
Rosalio went to Dangalan-Mendoza, demanding that she pay the value of the trees
cut; and 3) on February 13, 1990, petitioner asked her to forgive him for cutting the trees.
The CA held, however, that the same circumstances did not support the conviction of
Jeniebre. Aside from the testimony of Oscar Narvaez that Jeniebre hired him to cut the
trees into flitches, no other evidence was presented to show the latter's participation in
the offense charged. Moreover, the appellate court held that the res inter alios
acta rule under Section 28 of Rule 130 7 of the Rules of Court would be violated by
binding Jeniebre to petitioner's admission, which did not constitute any of the
exceptions 8 to this provision. It thus acquitted him.
As to petitioner, the CA modified the penalty imposed, pursuant to Section 68 ofthe
Revised Forestry Code as amended, Articles 309 and 310 of the Revised Penal Code,
and Section 1 of the Indeterminate Sentence Law.
Hence, this Petition. 9
Issues
Petitioner submits the following issues for our consideration:
"I
Whether hearsay testimony[,] which is denied by the alleged
author under oath in open court, is admissible in evidence against
him.
"II
Whether hearsay testimony allegedly made to potential
prosecution witnesses who are not police operatives or media
representatives is admissible in evidence against the author
because what a man says against himself[,] if voluntary, is
believable for the reason that it is fair to presume that [it]
correspond[s] with the truth and it is his fault if they do not
(U.S. v. Ching Po, 23 Phil. 578, 583 (1912).
"III

67

Whether or not . . . the [testimonies of the] prosecution witnesses . . .

that . . . petitioner Bon admitted his guilt to them should be given
high credence by the courts of justice considering that . . . many
people who are being quoted in media today . . . have been
found to be . . . lying. In other words, how much probity should we
give a lying witness?

derived from his own perception, except as otherwise provided in

these rules."
Under the above rule, any evidence whether oral or documentary is hearsay if its
probative value is not based on the personal knowledge of the witness, but on that of
some other person who is not on the witness stand. 13Hence, information that is relayed
to the former by the latter before it reaches the court is considered hearsay. 14

"IV
Assuming arguendo that petitioner Bon ma[d]e the extra-judicial
admission to the prosecution witnesses, [whether or not] . . . the
same [is constitutionally] admissible in evidence against him?" 10
Simply put, the points challenged by petitioner are as follows: 1) the admissibility of his
purported extrajudicial admission of the allegation, testified to by the prosecution
witnesses, that he had ordered the cutting of the trees; and 2) the credibility and the
sufficiency of the testimonies of those witnesses.acCITS
The Court's Ruling
The Petition has no merit.
First Issue:
Admissibility of the Extrajudicial Admission
At the outset, it must be emphasized that the present Petition is grounded on Rule 45 of
the Rules of Court. Under Section 1 thereof, "only questions of law which must be
distinctly set forth" may be raised. A reading of the pleadings reveals that petitioner
actually raised questions of fact the credibility of the prosecution witnesses and the
sufficiency of the evidence against him. Nonetheless, this Court, in the exercise of its
sound discretion and after taking into account the attendant circumstances, opts to
take cognizance of and decide the factual issues raised in the Petition, in the interest of
the proper administration of justice. 11

In the instant case, Lascano and Dangalan testified that on February 12, 1990, they had
heard petitioner admit to having ordered the cutting of the trees. Their testimonies
cannot be considered as hearsay for three reasons. First, they were indisputably present
and within hearing distance when he allegedly made the admission. Therefore, they
testified to a matter of fact that had been derived from their own perception.
Second, what was sought to be admitted as evidence was the fact that the utterance
was actually made by petitioner, not necessarily that the matters stated therein were
true. On. this basis, a statement attributed to a person who is not on the witness stand is
admissible; it is not covered by the hearsay rule. 15Gotesco Investment Corporation
v. Chatto 16 ruled that evidence regarding the making of such statement is not
secondary but primary, because the statement itself may constitute a fact in issue or be
circumstantially relevant as to the existence of that fact.
Third, even assuming that the testimonies were hearsay, petitioner is barred from
questioning the admission of Dangalan's testimony, because he failed to object to it at
the time it was offered. It has been held that when parties fail to object to hearsay
evidence, they are deemed to have waived their right to do so; thus, it may be
admitted. 17 The absence of an objection is clearly shown by the transcript of the
stenographic notes, from which we quote:
"Atty. Fajardo:
Q Did you reach the land in question?
A Yes, sir.

In the main, petitioner contends that Lascano's and Dangalan's separate

testimonies 12 regarding his alleged extrajudicial admission constitute hearsay evidence
and are, therefore, inadmissible. He also argues that his supposed admission should not
have been admitted, because it had been taken without the assistance of counsel at a
time when he was already regarded as a suspect.

Q And upon reaching the land in question, what did you do?

We disagree.

A We were not able to see.

Section 36 of Rule 130 of the Rules of Court states the rule on hearsay evidence as
follows:

Q And how many trees were cut?

"Sec. 36. Testimony generally confined to personal

knowledge;hearsay excluded. A witness can testify only to those
facts which he knows of his personal knowledge; that is, which are

A We were able to see the cut trees.

Q And were you able to see who cut the trees?

A There were newly cut trees and 4 others which have been cut for
a long time.
Q What kind of trees were cut according to you?

68

A Narra, amogis and kuyawyaw.

Q Upon seeing these cut trees, what did you do?
A I asked Virgilio Bon why those trees were [cut] down and he said
that he took the liberty of cutting those trees.
Q In your own understanding, [M]r. [W]itness, what did the
accused mean when he said that he took [the] liberty of
cutting those trees?
A He caused the cutting of the trees. TAcCDI
Q And during the time you were conversing, were you alone?
A I was with the barangay tanod.
Q And who were the members of the barangay tanod who were
with you at that time?
A Julian Lascano, Jr. and Natividad Legaspi." 18
Moreover, a party's verbal admission that is established through the testimonies of the
persons who heard it 19 fall under Section 26 of Rule 130 of the Rules of Court.
According to this provision, "[t]he act, declaration or omission of a party as to a relevant
fact may be given in evidence against him." This rule is based upon the notion
that no man would make any declaration against himself, unless it is true. 20 The
testimony of petitioner may, therefore, be received in evidence against him.
Regarding his alleged uncounselled admission, suffice it to stress that it was not given
during a custodial investigation and, certainly, not to police authorities. Custodial
investigation has been defined as any questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of freedom of
action in any significant way. 21 We have ruled previously that constitutional procedures
on custodial investigation do not apply to a spontaneous statement that is not elicited
through questioning by the authorities, but is given in an ordinary manner. 22
Verily, the inquiry on the illegal cutting of trees, which with the assistance of the
barangay tanods 23 was conducted by the owner's brother, Manuel Dangalan
cannot be deemed a custodial investigation. Consequently, the guarantees of Section
12 (1) of Article III 24 of the 1987 Constitution, or the so-called Miranda rights, cannot be
successfully invoked by petitioner. 25
Furthermore, allegations of impropriety committed during custodial investigation are
relevant and material only to cases in which an extrajudicial admission or confession is
the basis of conviction. 26 In the present case, the conviction of petitioner was not
deduced solely from his admission, but from the confluence of circumstantial evidence
showing his guilt beyond reasonable doubt.

Second Issue:
Credibility and Sufficiency of Prosecution Evidence
The time-tested rule is that the factual findings and conclusions of the trial court on the
credibility of witnesses deserve to be respected because of its unique advantage of
having observed their demeanor as they testified. 27 Equally established is the rule that
factual findings of the Court of Appeals are conclusive on the parties and carry even
more weight when such findings affirm those of the trial court, 28 as in this case. This
Court refrains from disturbing the CA's findings, if no glaring errors bordering on a gross
misapprehension of facts can be gleaned from them. 29 We have no reason to depart
from this rule. Hence, we affirm the lower courts' assessment of the credibility of the
prosecution witnesses.
We now come to the sufficiency of the prosecution's evidence.
Section 68 of the Forestry Code, as amended, 30 provides:
"SEC. 68. Cutting, Gathering and/or Collecting Timber, or Other
Forest Products Without License. Any person who shall cut,
gather, collect, remove timber or other forest products from any
forest land, or timber from alienable or disposable public land, or
from private land, without any authority, or possess timber or other
forest products without the legal documents as required under
existing forest laws and regulations, shall be punished with the
penalties imposed under Articles 309 and 310 of the Revised Penal
Code: Provided, That in the case of partnerships, associations, or
corporations, the officers who ordered the cutting, gathering,
collection or possession shall be liable, and if such officers are
aliens, they shall, in addition to the penalty, be deported without
further proceedings on the part of the Commission on Immigration
and Deportation.
"The Court shall further order the confiscation in favor of the
government of the timber or any forest products cut, gathered,
collected, removed, or possessed, as well as the machinery,
equipment, implements and tools illegally used in the area where
the timber or forest products are found."
Punishable under the above provision are the following acts: (1) cutting, gathering,
collecting or removing timber or other forest products from the places therein
mentioned without any authority; and (b) possessing timber or other forest products
without the legal documents. 31
Petitioner was charged with the first offense. 32 It was thus necessary for the prosecution
to prove the alleged illegal cutting, gathering or manufacture of lumber from the trees.
It is undisputed that no direct evidence was presented. This kind of evidence, however,
is not the only matrix from which the trial court may draw its conclusions and findings of

69

guilt. 33 Conviction may be based on circumstantial evidence, as long as the

circumstances proven constitute an unbroken chain that leads to a fair and reasonable
conclusion that the accused is guilty beyond reasonable doubt. 34

together with the circumstantial evidence, indubitably points to no other conclusion

than that petitioner was guilty as charged.
Correct Penalty

To sustain a conviction based on circumstantial evidence, it is necessary that the

following elements concur:
1. There is more than one circumstance.
2. The facts from which the inferences are derived are proven. SAHITC
3. The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt. 35
Did the circumstances in this case satisfy the above requirements? We rule in the
affirmative. In its assessment of the evidence, the regional trial court (RTC) considered
the following proven facts and circumstances:
". . . Accused Virgilio Bon[,] being the tenant is in actual possession
and control over the land, fruit trees and big trees. Virgilio Bon has
a better chance to cut and saw the lumber. He admitted before
the [b]arangay [t]anod[,] Julian Lascano[,] with other witnesses
present[,] that he ordered the cutting of the trees[, and the]
saw[ing thereof] by his son-in-law, accused Alejandro Jeniebre, Jr.
His admission was corroborated by Oscar Narvaez, the one hired
by Alejandro Jeniebre, Jr., to saw the lumber. His extrajudicial
confession is admissible evidence against him as it was voluntary
and not under custodial investigation." 36

The appellate court, on the other hand, found that the following circumstances
sufficiently proved petitioner's culpability:
". . . (1) [Petitioner] Virgilio Bon admitted in the presence of Manuel
Dangalan, Julian Lascano and Natividad Legaspi that he caused
the cutting of the questioned trees; (2) [o]n February 12, 1990,
[Petitioner] Virgilio Bon and his son[,] . . . Rosalio Bon[,] went to
private complainant[,] demanding [that] the latter . . . pay the
value of the questioned trees which they had cut; (3) [o]n February
13, 1990, [Petitioner] Virgilio Bon went to private complainant to ask
forgiveness for cutting the trees." 37
A review of the records also shows that the fact of the alleged cutting, gathering and
manufacture of lumber from the trees was proven by the prosecution through the
following pieces of documentary evidence: photographs of tree stumps, 38 the
investigation report of an officer of the Community Environment and Natural Resources
(CENRO) that no permit was secured for the cutting of the trees, 39 and the CENRO's
computation of the value 40 of the timber generated from the felled trees. This fact,

We now go to the penalty. We deem it necessary to discuss this matter because of the
differing penalties imposed by the appellate and the trial courts. The RTC imposed an
indeterminate sentence of seven (7) years, four (4) months and one (1) day of prision
mayor as minimum; to eleven (11) years, six (6) months and twenty-one (21) days
of prision mayor as maximum. The CA, however, increased the penalty to imprisonment
ranging from ten (10) years of prision mayor as minimum; to fourteen (14) years and
eight (8) months of reclusion temporal as maximum.
Article 68 of the Revised Forestry Law, as amended by Executive Order No.
277,41 provides that any violation thereof "shall be punished with the penalties imposed
under Articles 309 42 and 310 43 of Revised Penal Code." This amendment which
eliminated the phrase "shall be guilty of qualified theft as defined and punished under
Articles 309 and 310 of the Revised Penal Code" has already been interpreted by this
Court. According to its interpretation, the quoted phrase means that the acts of cutting,
gathering, collecting, removing or possessing forest products without authority constitute
distinct offenses that are now independent of the crime of theft under Articles 309 and
310 of the Revised Penal Code (RPC), but that the penalty to be imposed is that which is
provided under these articles. 44
Both the trial court 45 and the CA 46 found that the value of the lumber was P12,000.
Under Articles 309 and 310 of the RPC, the statutory penalty should be two degrees
higher than prision correccional in its medium and maximum periods; 47 or prision
mayor in its maximum period to reclusion temporal in its minimum
period. The Indeterminate Sentence Law, 48 however, reduces the sentence to an
indeterminate penalty anywhere in the range of six (6) years and one (1) day of prision
mayor, as minimum, to 14 years and eight (8) months ofreclusion temporal as maximum.
Clearly, the sentences imposed by the trial court and the CA are within the allowable
range. In view, however, of the finding of the RTC that no mitigating or aggravating
circumstance attended the commission of the offense, the penalty it imposed was more
in accord with the liberal spirit of the law towards the accused. Hence, we adopt the
trial court's indeterminate sentence of seven (7) years, four (4) months and one (1) day
ofprision mayor as minimum; to eleven (11) years, six (6) months and twenty-one (21)
days of prision mayor as maximum.
WHEREFORE, the assailed Decision of the Court of Appeals is hereby AFFIRMED with the
MODIFICATION that petitioner is sentenced to suffer an indeterminate penalty of
imprisonment of seven (7) years, four (4) months and one (1) day ofprision mayor as
minimum; to eleven (11) years, six (6) months and twenty-one (21) days of prision
mayor as maximum. Costs against appellant. aSTHDc
SO ORDERED.
Davide, Jr., C.J., Ynares-Santiago, Carpio and Azcuna, JJ., concur.

70

||| (Bon v. People, G.R. No. 152160, [January 13, 2004], 464 PHIL 125-145)
15- People v. Ulysses Garcia, G.R. No. 1451761, 30 March 2004
FIRST DIVISION
[G.R. No. 145176. March 30, 2004.]
PEOPLE OF THE PHILIPPINES, appellee, vs. SANTIAGO PERALTA y
POLIDARIO (at large), ARMANDO DATUIN JR. y GRANADOS (at
large), ULYSSES GARCIA y TUPAS, MIGUELITO DE LEON y LUCIANO,
LIBRANDO FLORES y CRUZ and ANTONIO LOYOLA y SALISI, accused,
ULYSSES GARCIA y TUPAS, MIGUELITO DE LEON y LUCIANO,
LIBRANDO FLORES y CRUZ and ANTONIO LOYOLA y
SALISI,appellants.
DECISION
PANGANIBAN, J p:
The right of the accused to counsel demands effective, vigilant and independent
representation. The lawyer's role cannot be reduced to being that of a mere witness to
the signing of an extra-judicial confession.
The Case
Before the Court is an appeal from the August 21, 2000 Decision 1 of the Regional Trial
Court (RTC) of Manila (Branch 18) in Criminal Case No. 92-112322. Appellants Ulysses
Garcia y Tupas, Miguelito de Leon y Luciano, Librando Flores y Cruz and Antonio Loyola
y Salisi, as well as their co-accused Santiago Peralta y Polidario and Armando Datuin
Jr. y Granados were convicted therein of qualified theft. The dispositive portion of the
Decision reads:
"WHEREFORE, the accused, Santiago Peralta y Polidario, Armando
Datuin, Jr. y Granados, Ulysses Garcia y Tupas, Miguelito De Leon y
Luciano, Librando Flores y Cruz and Antonio Loyola y Salisi, are
hereby convicted of the crime of qualified theft of P194,190.00 and
sentenced to suffer the penalty of reclusion perpetua with all the
accessory penalties provided by law, and to pay the costs.
Moreover, all the accused are ordered to pay the Central Bank of
the Philippines, now Bangko Sentral ng Pilipinas, actual damages in
the sum of P194,190.00 with interest thereon at the legal rate from
the date of the filing of this action, November 9, 1992, until fully
paid." 2
In an Information dated November 9, 1992, 3 appellants and their co-accused were
charged as follows:

"That sometime in the year 1990 and including November 4, 1992,

in the City of Manila, Philippines, the said accused, conspiring and
confederating with others whose true names, identities and present
whereabouts are still unknown and helping one another, did then
and there wilfully, unlawfully and feloniously, with intent to gain and
without the knowledge and consent of the owner thereof, take,
steal and carry away punctured currency notes due for shredding
in the total amount of P194,190.00, belonging to the Central Bank
of the Philippines as represented by Pedro Labita y Cabriga, to the
damage and prejudice of the latter in the aforesaid sum of
P194,190.00 Philippine currency;
"That said accused Santiago Peralta y Polidario, Armando Datuin,
Jr. y Granados, Ulysses Garcia y Tupas, Miguelito de Leon y Luciano
and Antonio Loyola y Salisi committed said offense with grave
abuse of confidence they being at the time employed as
Currency Reviewers, Driver, Currency Assistant I and Money
Counter of the offended party and as such they had free access
to the property stolen." 4
Garcia was arrested on November 4, 1992; and his co-accused, on November 9, 1992.
Appellants, however, obtained two Release Orders from RTC Vice Executive Judge
Corona Ibay-Somera on November 9 and 10, 1992, upon their filing of a cash bond to
secure their appearance whenever required by the trial court. 5
During their arraignment on May 4, 1993, appellants, assisted by their respective
counsels, pleaded not guilty. 6 On September 30, 1998, the trial court declared that
Datuin Jr. and Peralta were at large, because they had failed to appear in court
despite notice. 7
After trial in due course, they were all found guilty and convicted of qualified theft in the
appealed Decision.
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) presents the prosecution's version of the facts
as follows:
"About 10:00 o'clock in the morning of November 4, 1992, Pedro
Labita of Central Bank of the Philippines (CBP) [now Bangko Sentral
ng Pilipinas (BSP)] went to the Theft and Robbery Section of
Western Police District Command (WPDC), and filed a complaint
for Qualified Theft against Santiago Peralta, Armando Datuin, Jr.,
Ulysses Garcia, Miguelito de Leon, Librando Flores and Antonio S.
Loyola.

71

"Pedro Labita submitted to SPO4 Cielito Coronel, the investigating

officer at WPDC, punctured currency notes in P100.00 and P500.00
bills with a face value of Php194,190.00. Said notes were allegedly
recovered by the BSP Cash Department during its cash counting of
punctured currency bills submitted by different banks to the latter.
The punctured bills were rejected by the BSP money counter
machine and were later submitted to the investigation staff of the
BSP Cash Department. As a result of the investigation, it was
determined that said rejected currency bills were actually
punctured notes already due for shredding. These currency bills
were punctured because they were no longer intended for
circulation. Before these notes could be shredded, they were
stolen from the BSP by the above-named accused.
"On the basis of the complaint filed by Pedro Labita, Ulysses Garcia
was apprehended in front of Golden Gate Subdivision, Las Pias
City, while he was waiting for a passenger bus on his way to the
BSP. Garcia was brought to the police station for investigation.
"On November 4, 5 and 6, 1992, while in the custody of the police
officers, Garcia gave three separate statements admitting his guilt
and participation in the crime charged. He also identified the other
named accused as his cohorts and accomplices and narrated the
participation of each and everyone of them.
"On the basis of Garcia's sworn statements, the other named
accused were invited for questioning at the police station and
were subsequently charged with qualified theft together with
Garcia." 8 (Citations omitted)
Version of the Defense
The defense states its version of the facts in the following manner:
"Accused-appellant Garcia served as a driver of the armored car
of the Central Bank from 1978 to 1994.
"On November 4, 1992, between 7:00 a.m. and 8:00 a.m., a man
who had identified himself as a police officer arrested accusedappellant Garcia while waiting for a passenger bus in front of the
Golden Gate Subdivision, Las Pias City. He was arrested without
any warrant for his arrest. The police officer who had arrested
accused-appellant Garcia dragged the latter across the street
and forced him to ride . . . a car.
"While inside the car, he was blindfolded, his hands were
handcuffed behind his back, and he was made to bend with his
chest touching his knees. Somebody from behind hit him and he
heard some of the occupants of the car say that he would be

salvaged if he would not tell the truth. When the occupants of the
car mentioned perforated notes, he told them that he does not
know anything about those notes.
"After the car had stopped, he was dragged out of the car and . . .
up and down . . . the stairs. While being dragged out of the car, he
felt somebody frisk his pocket.
"At a safe house, somebody mentioned to him the names of his coaccused and he told them that he does not know his co-accused.
. . . Whenever he would deny knowing his co-accused, somebody
would box him on his chest. Somebody poured water on accusedappellant Garcia's nose while lying on the bench. He was able to
spit out the water that had been poured on his nose [at first], but
somebody covered his mouth. As a result, he could not breath[e].
"When accused-appellant Garcia realized that he could not bear
the torture anymore, he decided to cooperate with the police,
and they stopped the water pouring and allowed him to sit down.
"Accused-appellant Garcia heard people talking and he heard
somebody utter, 'may nakikinig.' Suddenly his two ears were hit with
open palm[s]. . . . As he was being brought down, he felt
somebody return his personal belongings to his pocket. Accusedappellant Garcia's personal belongings consisted of [his] driver's
license, important papers and coin purse.
"He was forced to ride . . . the car still with blindfold. His blindfold
and handcuffs were removed when he was at the office of police
officer Dante Dimagmaliw at the Western Police District, U.N.
Avenue, Manila.
"SPO4 Cielito Coronel asked accused-appellant Garcia about the
latter's name, age and address. The arrival of Mr. Pedro Labita of
the Cash Department, Central Bank of the Philippines, interrupted
the interview, and Mr. Labita instructed SPO4 Coronel to get
accused-appellant Garcia's wallet and examine the contents
thereof. SPO4 Coronel supposedly found three pieces of P100
perforated bill in accused-appellant Garcia's wallet and the former
insisted that they recovered the said perforated notes from
accused-appellant's wallet. SPO4 Coronel took down the
statement of Mr. Labita.
"It was actually Mr. Labita, and not accused-appellant Garcia,
who gave the answers appearing in accused-appellant Garcia's
alleged three sworn statements dated November 4, 1992,
November 5, 1992 and . . . November 6, 1992. cASIED

72

"At or about 6:00 p.m. on November 5, 1992, accused-appellant

Garcia was brought to the cell of the Theft and Robbery Section of
the WPD. At or about 8:00 p.m., he was brought to the office of
Col. Alladin Dimagmaliw where his co-accused were also inside.
He did not identify his co-accused, but he merely placed his hands
on the shoulders of each of his co-accused, upon being
requested, and Mr. Labita took . . . pictures while he was doing the
said act.
"Accused-appellant Garcia came to know Atty. Francisco Sanchez
of the Public Attorney's Office on November 4, 1992, at the office
of police officer Dante Dimagmaliw, when SPO4 Coronel
introduced Atty. Sanchez to accused-appellant Garcia and told
him that Atty. Sanchez would be his lawyer. However, accusedappellant Garcia did not agree to have Atty. Sanchez to be his
lawyer. Atty. Sanchez left after talking to SPO4 Coronel, and
accused-appellant Garcia had not met Atty. Sanchez anymore
since then. He was not present when Atty. Sanchez allegedly
signed . . . the alleged three (3) sworn statements.
"During the hearing of the case on April 6, 2000, Atty. Sanchez
manifested in open court that he did not assist accused-appellant
Garcia when the police investigated accused-appellant Garcia,
and that he signed . . . the three (3) sworn statements only as a
witness thereto.
"Accused-appellant Garcia signed the alleged three sworn
statements due to SPO4 Coronel's warning that if he would not do
so, he would again be tortured by water cure.
"SPO[4] Coronel caused the arrest without any warrant of accused
appellants De Leon, Loyola, [Flores] on the basis of the complaint
of Mr. Pedro Labita, and which arrest was effected on November
5, 1992, by SPO1 Alfredo Silva and SPO1 Redelico.
"SPO4 Coronel, in his letter dated November 6, 1992, forwarded the
case to the Duty Inquest Prosecutor assigned at the WPDC
Headquarters." 9(Citations omitted)
Ruling of the Trial Court
The trial court found that all the accused used to work for the BSP. Garcia was a driver
assigned to the Security and Transport Department; while Peralta, Datuin Jr., De Leon,
Flores and Loyola were laborers assigned to the Currency Retirement Division. Their main
task was to haul perforated currency notes from the currency retirement vault to the
basement of the BSP building for shredding.
On several occasions, during the period 1990-1992, they handed to Garcia perforated
currency notes placed in a coin sack that he, in turn, loaded in an armored escort van

and delivered to someone waiting outside the premises of the building. The trial court
held that the coordinated acts of all the accused unerringly led to the conclusion that
they had conspired to pilfer the perforated currency notes belonging to the BSP.
The RTC rejected the disclaimer by Garcia of his own confessions, as such disclaimer
was "an eleventh hour concoction to exculpate himself and his co-accused." The trial
court found his allegations of torture and coerced confessions unsupported by
evidence. Moreover, it held that the recovery of three pieces of perforated P100 bills
from Garcia's wallet and the flight of Peralta and Datuin Jr. were indicative of the guilt
of the accused.
Hence, this appeal. 10
Issues
In his Brief, Garcia raises the following issues:
"1
The trial court erred in admitting in evidence the alleged three
Sworn Statements of Accused-appellant Garcia and the alleged
three pieces of P100 perforated notes
"2
The trial court erred in finding the accused-appellant guilty of
qualified theft." 11
In their joint Brief, De Leon, Loyola and Flores interpose this additional assignment of
errors:
"1
The trial court erred in admitting in evidence the alleged three
sworn statements of Accused Ulysses Garcia (Exhibits 'I', 'J' and 'K')
and the alleged three pieces of P100 perforated notes (Exhibits 'N'
to 'N-2') over the objections of the accused-appellants.
"2
The trial court erred in denying the demurrer to evidence of
Accused-appellants De Leon, Loyola and Flores;
"3
The trial court erred in denying the Motion for Reconsideration of
the Order denying the demurrer to evidence;
"4

73

The trial court erred when it failed to consider the evidence

adduced by the accused-appellants, consisting of exhibits '1', '2' to
'2-B', '3' and '4' and the testimony of their witness, State Auditor
Esmeralda Elli;

It is clear from a plain reading of the three extrajudicial confessions 13 that Garcia was
not assisted by Atty. Sanchez. The signature of the latter on those documents was
affixed after the word "SAKSI." Moreover, he appeared in court and categorically
testified that he had not assisted Garcia when the latter was investigated by the police,
and that the former had signed the Sworn Statement only as a witness. 14

"5
The trial court erred in finding the accused-appellants guilty of
qualified theft." 12
Simplified, the issues are as follows: (1) the sufficiency of the evidence against
appellants, including the admissibility of Garcia's confessions and of the three
perforated P100 currency notes; and (2) the propriety of the denial of their demurrer to
evidence.
The Court's Ruling
The appeal has merit.
First Issue:
Sufficiency of Evidence
The trial court convicted appellants mainly on the strength of the three confessions
given by Garcia and the three perforated P100 currency notes confiscated from him
upon his arrest. Appellants, however, contend that these pieces of evidence are
inadmissible.
Extrajudicial Confessions
Appellants aver that the alleged three Sworn Statements of Garcia were obtained
without the assistance of counsel in violation of his rights under Article III, Section 12
(1) and (2) of the 1987 Constitution, which provides thus:
"SECTION 12. (1) Any person under investigation for the commission
of an offense shall have the right to be informed of his right to
remain silent and to have competent and independent counsel,
preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of
counsel.
"(2) No torture, force, violence, threat, intimidation, or any other
means which vitiate the free will shall be used against him. Secret
detention places, solitary, incomunicado, or other similar forms of
detention are prohibited."
On the other hand, the OSG contends that counsel, Atty. Francisco Sanchez III of the
Public Attorney's Office, duly assisted Garcia during the custodial investigation.

The written confessions, however, were still admitted in evidence by the RTC on the
ground that Garcia had expressed in writing his willingness and readiness to give the
Sworn Statements without the assistance of counsel. The lower court's action is manifest
error.
The right to counsel has been written into our Constitution in order to prevent the use of
duress and other undue influence in extracting confessions from a suspect in a crime.
The basic law specifically requires that any waiver of this right must be made in
writing and executed in the presence of a counsel. In such case, counsel must not only
ascertain that the confession is voluntarily made and that the accused understands its
nature and consequences, but also advise and assist the accused continuously from
the time the first question is asked by the investigating officer until the signing of the
confession.
Hence, the lawyer's role cannot be reduced to being that of a mere witness to the
signing of a pre-prepared confession, even if it indicated compliance with the
constitutional rights of the accused. 15 The accused is entitled to effective, vigilant and
independent counsel. 16

A waiver in writing, like that which the trial court relied upon in the present case, is not
enough. Without the assistance of a counsel, the waiver has no evidentiary
relevance. 17 The Constitution states that "[a]ny confession or admission obtained in
violation of [the aforecited Section 12] shall be inadmissible in evidence. . . ." Hence, the
trial court was in error when it admitted in evidence the uncounseled confessions of
Garcia and convicted appellants on the basis thereof. The question of whether he was
tortured becomes moot.CADSHI
Perforated Currency Notes
Appellants contend that the three P100 perforated currency notes (Exhibits "N" to "N-2")
allegedly confiscated from Garcia after his arrest were "fruits of the poisonous tree" and,
hence, inadmissible in evidence.
The solicitor general evades the issue and argues, instead, that appellants waived the
illegality of their arrest when they entered a plea. He further contends that the exclusion
from the evidence of the three punctured currency bills would not alter the findings of
the trial court.
The police arrested Garcia without a warrant, while he had merely been waiting for a
passenger bus after being pointed out by the Cash Department personnel of the BSP. At
the time of his arrest, he had not committed, was not committing, and was not about to

74

commit any crime. Neither was he acting in a manner that would engender a
reasonable ground to suspect that he was committing a crime. None of the
circumstances justifying an arrest without a warrant under Section 5 of Rule 113 of the
Rules of Court was present.
Hence, Garcia was not lawfully arrested. Nonetheless, not having raised the matter
before entering his plea, he is deemed to have waived the illegality of his arrest. Note,
however, that this waiver is limited to the arrest. It does not extend to the search made
as an incident thereto or to the subsequent seizure of evidence allegedly found during
the search.
The Constitution proscribes unreasonable searches and seizures 18 of whatever nature.
Without a judicial warrant, these are allowed only under the following exceptional
circumstances: (1) a search incident to a lawful arrest, (2) seizure of evidence in plain
view, (3) search of a moving motor vehicle, (4) customs search, (5) stop and frisk
situations, and (6) consented search. 19
Where the arrest was incipiently illegal, it follows that the subsequent search was similarly
illegal. 20 Any evidence obtained in violation of the constitutional provision is legally
inadmissible in evidence under the exclusionary rule. 21 In the present case, the
perforated P100 currency notes were obtained as a result of a search made without a
warrant subsequent to an unlawful arrest; hence, they are inadmissible in evidence.
Moreover, untenable is the solicitor general's argument that Appellants De Leon, Flores
and Loyola waived the illegality of the arrest and seizure when, without raising
objections thereto, they entered a plea of guilty. It was Garcia who was unlawfully
arrested and searched, not the aforementioned three appellants. The legality of an
arrest can be contested only by the party whose rights have been impaired thereby.
Objection to an unlawful search and seizure is purely personal, and third parties cannot
avail themselves of it. 22
Indeed, the prosecution sufficiently proved the theft of the perforated currency notes
for retirement. It failed, however, to present sufficient admissible evidence pointing to
appellants as the authors of the crime.

Appellants contend that the trial court seriously erred when it denied the demurrer to
evidence filed by Appellants Loyola, De Leon and Flores. Not one of the documents
offered by the prosecution and admitted in evidence by the RTC established the
alleged qualified theft of perforated notes, and not one of the pieces of evidence
showed appellants' participation in the commission of the crime.
On the exercise of sound judicial discretion rests the trial judge's determination of the
sufficiency or the insufficiency of the evidence presented by the prosecution to
establish a prima facie case against the accused. Unless there is a grave abuse of
discretion amounting to lack of jurisdiction, the trial court's denial of a motion to dismiss
may not be disturbed. 24
As discussed earlier, the inadmissibility of the confessions of Garcia did not become
apparent until after Atty. Francisco had testified in court. Even if the confiscated
perforated notes from the person of the former were held to be inadmissible, the
confessions would still have constituted prima facie evidence of the guilt of appellants.
On that basis, the trial court did not abuse its discretion in denying their demurrer to
evidence.
WHEREFORE, the assailed Decision is REVERSED and SET ASIDE. Appellants are hereby
ACQUITTED and ordered immediately RELEASED, unless they are being detained for any
other lawful cause. The director of the Bureau of Corrections is hereby directed to
submit his report on the release of the appellant or the reason for his continued
detention within five (5) days from notice of this Decision. Nocosts.
SO ORDERED.
Davide, Jr., C.J., Ynares-Santiago, Carpio and Azcuna, JJ., concur.
||| (People v. Garcia y Tupas, G.R. No. 145176, [March 30, 2004])

16- People v. Vinecario, G.R. No. 141137, 20 January 2004

The evidence presented by the prosecution shows that there were other people who
had similar access to the shredding machine area and the currency retirement
vault. 23 Appellants were pinpointed by Labita because of an anonymous phone call
informing his superior of the people allegedly behind the theft; and of the unexplained
increase in their spending, which was incompatible with their income. Labita, however,
did not submit sufficient evidence to support his allegation.
Without the extrajudicial confession and the perforated currency notes, the remaining
evidence would be utterly inadequate to overturn the constitutional presumption of
innocence.
Second Issue:

THIRD DIVISION
[G.R. No. 141137. January 20, 2004.]
PEOPLE OF THE PHILIPPINES, appellee, vs. VICTOR DIAZ VINECARIO;
ARNOLD ROBLE and GERLYN WATES, appellants.
DECISION
CARPIO MORALES, J p:

Demurrer to Evidence

75

From the Decision of July 20, 1999, as amended by Order of September 9, 1999, of the
Regional Trial Court of Davao City, Branch 16, finding appellants Victor Vinecario,
Arnold Roble and Gerlyn Wates guilty beyond reasonable doubt of violation of Article IV
of Republic Act No. 6425 (Dangerous Drugs Act of 1972, as amended by Republic
Act No. 7659), and imposing upon them the penalty ofreclusion perpetua, they lodged
the present appeal.

ordered and as SPO1 Goc-ong noticed something wrapped in paper, he told Vinecario
to take the same out. Again Vinecario obliged, albeit reiterating that it was only a mat.

The Information dated April 25, 1995, filed against appellants reads as follows:

Vinecario thereafter told SPO1 Goc-ong "let us talk about this," 8 but the latter ignored
Vinecario and instead called his Commanding Officer and reported to him that
marijuana was found in Vinecario's possession.

The undersigned accuses the above-named accused for

VIOLATION OF SECTION 4, ARTICLE II IN RELATION TO SECTION 21,
ARTICLE IV OF R.A. 6425, committed as follows:
That on or about April 10, 1995 in the City of Davao, Philippines and
within the jurisdiction of this Honorable Court, the abovementioned accused, conspiring, confederating and helping one
another, without being authorized by law, willfully, unlawfully and
feloniously transported, delivered and possessed 1.7 kilos dried
marijuana leaves which are prohibited drugs.
CONTRARY TO LAW. 1
Upon arraignment on September 11, 1995, appellants, duly assisted by counsel,
pleaded not guilty to the offense charged.
The facts as established by the prosecution are as follows:
On the night of April 10, 1995, at around 10:45 p.m., as about fifteen police officers were
manning a checkpoint at Ulas, Davao City pursuant to COMELEC Resolution No. 2735,
otherwise known as the COMELEC gun ban, a Honda TMX motorcycle with three men
on board sped past them. 2 One of the police officers blew his whistle 3 and ordered
them to return to the checkpoint.
Obliging, the three men aboard the motorcycle returned to the checkpoint. SPO1
Haydenburge Goc-ong (SPO1 Goc-ong) of the 11th Regional Mobile Force 4th
Company thereupon asked them why they sped away to which appellant Victor
Vinecario (Vinecario), who was seated behind appellant Arnold Roble (Roble) and in
front of appellant Gerlyn Wates (Wates) on the motorcycle, retorted that he is a
member of the army. 4 When asked by the law enforcers to produce an identification
card, he could not, however, offer any. At this point, the police officers noticed that a
big military backpack was slung over the right shoulder of Vinecario who was observed,
as were his co-appellants, to be afraid and acting suspiciously. 5 SPO1 Goc-ong thus
asked Vinecario what the contents of the backpack were. Vinecario answered that it
merely contained a mat and proceeded to pass it to Wates, who in turn passed it to
Roble who, however, returned it to Vinecario. 6
Suspecting that the backpack contained a bomb, SPO1 Goc-ong instructed his men to
disperse, following which he ordered Vinecario to open the bag. Vinecario did as

SPO1 Goc-ong then touched the stuff wrapped in paper upon which Vinecario
grabbed it, 7 resulting to the tearing off of the paper wrapper. Soon the smell of
marijuana wafted in the air.

On orders of the Commanding Officer, the other police officers brought appellants
along with two bundles of marijuana, the backpack and the motorcycle to the
battalion office at Camp Catitipan in Davao City and were turned over to one PO2
Cabalon, an investigator of Regional Mobile Force 11. Before proceeding to said
battalion office, however, the incident was blottered 9 by PO3 Edward Morado at the
Buhangin Police Station. 10
On April 11, 1995, SPO1 Goc-ong, PO1 Vicente Carvajal (PO1 Carvajal) and PO1 Pual
Padasay brought the confiscated suspected marijuana to the camp's crime laboratory
for examination 11 which determined it to weigh 1,700 grams 12 and to be indeed
positive therefor. 13
As for appellants, their version of the incident follows:
Vinecario, then a member of the 25th Infantry Battalion of the 6th Infantry Division of the
Philippine army stationed at Pagakpak, Pantukan, 14 approached motorcycle driver
Wates at a terminal in Andile, Mawab and requested him to bring him to his elder
brother at Parang, Maguindanao for a fee of P500.00 which he paid. 15 The two thus
proceeded to Carmen, Panabo where they picked up Roble to alternate with Wates as
driver, and at 8:00 a.m., the three left for Parang.16
On reaching Parang at about 1:20 p.m., Vinecario borrowed P3,000.00 from his brother
Teofanis to shoulder the medical expenses of his son. At about 4:30 p.m., after partaking
of snacks at Teofanis' residence, appellants left for Davao City. aIDHET
Along Parang Highway, Abdul Karim Datolarta, Vinecario's former co-employee at
Emerson Plywood where he previously worked, blocked the motorcycle. 17Vinecario
thus alighted from the motorcycle and shook hands with Datolarta 18who asked where
they were headed for and requested that he ride with them. Vinecario turned Datolarta
down as there was no longer any room in the motorcycle. Datolarta then asked if he
(Vinecario) could take his bag of clothes and bring it to his cousin, one Merly, in Roxas,
Tagum. Without examining its contents, Vinecario acquiesced, took Datolarta's bag and
left with his co-appellants. 19
On reaching Ulas in the evening of the same day, appellants, seeing that there was a
checkpoint, 20 sped past it. When they were about 50 to 60 meters away from the
checkpoint, they heard a whistle, prompting Wates to tap Vinecario, telling him that the

76

whistle came from the checkpoint. Vinecario then told Roble to go back to the
checkpoint.
While at the checkpoint, five police officers approached appellants and instructed
them to alight from the motorcycle. One of the officers asked Vinecario who he was,
and Vinecario identified himself as a member of the Philippine National Police. 21 The
officer asked for identification and when Vinecario could not produce any, the former
got the backpack slung on Vinecario's shoulder.
The same officer then asked Vinecario if they could open the bag, and as Vinecario
acquiesced, two officers opened the bag upon which they shouted that it contained
marijuana. Vinecario then grabbed the backpack to confirm if there was indeed
marijuana. At that instant, the police officers held his hands and brought him, together
with the other appellants, to the Buhangin Police Station, and later to Camp Catitipan.
At the camp, appellants were investigated by police officials without the assistance of
counsel, following which they were made to sign some documents which they were not
allowed to read. 22
The trial court, by Decision of July 20, 1999, found appellants guilty as charged. The
dispositive portion of the decision reads, quoted verbatim:
WHEREFORE, finding the evidence of the prosecution, more than
sufficient to prove the guilt of all three accused beyond
reasonable doubt of the offense charged, accused PFC Victor
Vinecario, Arnold Roble and Gerlyn Wates, pursuant to Sec. 4, Art. II
in relation to Art. IV or (sic) Rep. Act 6425 as amended by Rep. Act
7659, Sec. 20, par. 5 thereof, are jointly sentence (sic) to suffer the
supreme penalty of death by lethal injection, under Rep Act 8177
in the manner and procedure therein provided, in relation to Sec.
24 of Rep. Act 7659, amending Art. 81 of the Revised Penal Code.

Judgment of this court, dated July 20, 1999, is accordingly set aside
and reconsidered, only insofar as the imposition of the supreme
penalty of death through lethal injection under Republic Act No.
8177, is concerned.
All accused PFC Victor Venecario, Arnold Roble and Gerlyn
Wates, are instead sentence (sic) to suffer the penalty of reclusion
perpetua,pursuant to Art. IV, Sec. 21, in relation to Art. IV
of Republic Act No. 6425 as amended by Republic Act No. 7659,
Sec. 20, par. 5 thereof, in accordance with Art. 63 of the Revised
Penal Code, as decided by the Supreme Court in the recent case
of Peope (sic) vs. Ruben Montilla G.R.No. 123872 dated January 30,
1998.
However, the findings of this court for the conviction of all
aaccused (sic) of the offense charged, is (sic) sustained. The
corresponding motion (sic) for reconsideration of all accused
through their counsel for their acquittal of (sic) the offense
charged, is denied, for lack of merit.
SO ORDERED. 24 (Emphasis and Underscoring supplied)
The prosecution then filed a Motion for Reconsideration 25 dated September 14, 1995 of
the above-mentioned Order of the trial court, it arguing that the commission of the
offense charged against appellants was attended by an aggravating circumstance in
that it was committed by an organized or syndicated crime group, thus warranting the
imposition of the death penalty.
In the meantime, Roble and Wates filed their Notice of Appeal 26 on September 15,
1999. Vinecario followed suit and filed his Notice of Appeal. 27
The trial court, by Order dated September 22, 1999, denied the prosecution's Motion.

Finally pursuant to Rep. Act 7659 Sec. 22 the Branch Clerk of Court
of RTC 16 Davao City, is ordered to elevate the entire records of
this case with the Clerk of Court, Supreme Court Manila, for the
automatic review of this Decision, after its promulgation.
SO ORDERED. 23 (Underscoring supplied)
By Order of September 9, 1999, the trial court set aside its decision of July 20, 1999 and
disposed as follows, quoted verbatim:
Accordingly, all accused (sic) motion for reconsideration on this
aspect, on the imposition of the penalty against all accused, even
if invoked only be accused Venecaio (sic) through his counsel de
oficio, will apply to all accused since there exists conspiracy of all in
the commission of the offense charged.

In their brief, Roble and Wates assign the following errors:

1. THE TRIAL COURT'S OBSERVATION THAT APPELLANTS WATES AND
ROBLE CONSPIRED WITH VICTOR VINECARIO IN
TRANSPORTING MARIJUANA FROM PARANG,
MAGUINDANAO IS NOT BORNE BY THE EVIDNECE (sic) ON
RECORD AND SHOWS THAT THE TRIAL COURT GRAVELY
ERRED IN MISAPPREHENDING FACTS IF NOT A COMPLETE
DISREGARD OF THE EVIDENCE, BOTH DOCUMENTARY AND
TESTIMONIAL.
2. THE TRIAL COURT GRAVELY ERRED IN FAILING TO AFFORD
EVIDENTIARY WEIGHT TO THE RECANTATION MADE BY
POLICE OFFICERS HAYDENBURG GOC-ONG AND VICENTE
CARVAJAL THAT BOTH APPELLANTS WATES AND ROBLE
WERE NOT NERVOUS AND APPREHENSIVE AT THE THE (sic)

77

OF THE OPENING OF THE MILITARY PACK CONTAINING

MARIJUANA NEAR THE CHECKPOINT.
3. THE TRIAL COURT GRAVELY ERRED IN NOT GIVING CREDENCE TO
THE TESTIMONIES OF APPELLANTS WATES AND ROBLE THAT
THEY WERE MERELY HIRED BY VICTOR VINECARIO TO BRING
HIM TO PARANG, MAGUINDANAO FOR A FEE OF P500.00
WITH FREE FOOD AND GASOLINE.
4. THE TRIAL COURT GRAVELY ERRED IN DECLARING THE RENTAL OF
P500.00 WHICH VINECARIO PAID TO THE OWNER OF THE
[MOTORCYCLE] AS INADEQUATE BY TAKING JUDICIAL
NOTICE OF THE BUS FARE OF P268.00 FROM MACO,
DAVAO PROVINCE TO SUN WAY CROSSING,
MAGUINDANAO DOWN TO PARANG, MAGUINDANAO. 28
Wates and Roble argue that there is no iota of evidence to prove that they acted with
unity of purpose and in the execution of any unlawful objective with Vinecario. 29 They
assert that they had no prior knowledge of Vinecario's plan to meet with a man who
would give the backpack containing marijuana; that prosecution witnesses SPO1 Gocong and PO1 Carvajal's declaration that they (appellants Wates and Roble) were not
nervous, uneasy or apprehensive when the backpack was opened buttresses their
claim that they did not conspire with Vinecario; and that the prosecution's theory of
conspiracy was merely based on the testimony of PO1 Carvajal that they acted
nervously when the backpack was ordered opened for inspection; that there was a
"great variance" in the testimonies of SPO1 Goc-ong and PO1 Carvajal in the direct
examination and their testimonies on rebuttal as to the events that transpired on April
10, 1995, thus casting serious doubts on the trial court's findings of guilt.
On September 17, 2001, Vinecario filed an Urgent Motion to Withdraw Appeal, 30stating
that he is "practically satisfied with the decision of the trial court"; that "he would not
waste anymore the effort of the honorable Supreme Court Justices in further reviewing
his case"; and that as he was "driven by the sincerest desire in renewing his life," he
"irrevocably moves for the withdrawal of his appeal." On even date, Roble and Wates
likewise filed an Urgent Motion to Withdraw Appeal,31 stating that they admit the
commission of the offense for which they were convicted; that they are satisfied with
the decision of the trial court; and that they are already serving the penalty for their
offense and "realize the overt admittance of guilt as the only vehicle in [their] gradual
renewal."
By Resolution of November 27, 2001, this Court denied the Motions of appellants and
directed Vinecario to file his brief within forty-five days from notice of the resolution.
In a brief dated January 25, 2002, Vinecario attributes the following errors to the trial
court:
I. THE COURT A QUO GRAVELY ERRED IN HOLDING THAT THE SEARCH
UPON THE PERSON OF ACCUSED-APPELLANT AND THE

SEIZURE OF THE ALLEGED 1,700 GRAMS OF MARIJUANA AS

(sic) VALID. ASHECD
II. THE COURT A QUO GRAVELY ERRED IN ADMITTING AS EVIDENCE
AGAINST ACCUSED-APPELLANT THE ALLEGED 1,700
GRAMS OF MARIJUANA AS IT WAS A PRODUCT OF AN
ILLEGAL SEARCH.
III. THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT AND
CREDENCE TO THE TESTIMONY OF PROSECUTION
WITNESSES AND IN GIVING THE POLICEMEN THE
PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF
DUTY DESPITE THE APPARENT IRREGULARITIES IN THE
MANNER OF ARRESTING THE ACCUSED-APPELLANT.
IV. THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT
OF THE ACCUSED-APPELLANT FOR THE CRIME CHARGED
HAS BEEN PROVEN BEYOND REASONABLE DOUBT.32
Vinecario argues that the prosecution failed to show that the search conducted by the
police officers was incident to a lawful arrest; that he could not have been deemed to
have consented to the search as any such consent was given under intimidating or
coercive circumstances; and that there existed no probable cause to justify the search
and seizure of the backpack, hence, the marijuana is inadmissible in evidence, i t being
a product of illegal search.
Vinecario adds that the police officers who arrested and investigated him failed to
inform him of his rights to remain silent and to have competent and independent
counsel of his choice, thereby violating Section 12(1), Article III of the Constitution.33
The rule is constitutionally enshrined that no search and seizure can lawfully be
conducted without a valid warrant issued by a competent judicial authority.Section 2,
Article III of the Constitution so ordains:
Sec. 2. The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of
whatever nature and for any purpose, shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place
to be searched, and the persons or things to be seized.
And Section 3(2), Article III of the same Constitution mandates that any evidence
obtained in violation of the right of the people under Section 2 shall be inadmissible
for any purpose in any proceeding.
The constitutional proscription against warrantless searches and seizures admits of
certain exceptions, however. Search and/or seizure may be made without a warrant

78

and the evidence obtained therefrom may be admissible in the following instances: (1)
search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in
violation of customs laws; (4) seizure of evidence in plain view; (5) when the accused
himself waives his right against unreasonable searches and seizures; and (6) stop-andfrisk situations. 34
Searches conducted in checkpoints are valid for as long as they are warranted by the
exigencies of public order and are conducted in a way least intrusive to motorists. 35 For
as long as the vehicle is neither searched nor its occupants subjected to a body search,
and the inspection of the vehicle is limited to a visual search, said routine checks
cannot be regarded as violative of an individual's right against unreasonable search. 36
. . . [C]heckpoints are not illegal per se. Thus, under exceptional
circumstances, as where the survival of organized government is
on the balance, or where the lives and safety of the people are in
grave peril, checkpoints may be allowed and installed by the
government.
xxx xxx xxx
No one can be compelled, under our libertarian system, to share
with the present government its ideological beliefs and practices,
or commend its political, social and economic policies or
performance. But, at least, one must concede to it the basic right
to defend itself from its enemies and, while in power, to pursue its
program of government intended for public welfare; and in the
pursuit of those objectives, the government has the equal right,
under its police power, to select the reasonable means and
methods for best achieving them. The checkpoint is evidently one
of such means it has selected.
Admittedly, the routine checkpoint stop does intrude, to a certain
extent, on motorists' right to "free passage without interruption", but
it cannot be denied that, as a rule, it involves only a brief detention
of travelers during which the vehicle's occupants are required to
answer a brief question or two. . . .
These routine checks, when conducted in a fixed area, are even
less intrusive. As held by the U.S. Supreme Court:
"Routine checkpoint stops do not intrude similarly on the
motoring public. First, the potential interference with
legitimate traffic is minimal. Motorists using these highways
are not taken by surprise as they know, or may obtain
knowledge of, the location of the checkpoints and will
not be stopped elsewhere. Second checkpoint
operations both appear to and actually involve less
discretionary enforcement activity. The regularized
manner in which established checkpoints are operated is

visible evidence, reassuring to law-abiding motorists, that

the stops are duly authorized and believed to serve the
public interest. The location of a fixed checkpoint is not
chosen by officers in the field, but by official responsible
for making overall decisions as to the most effective
allocation of limited enforcement resources. We may
assume that such officials will be unlikely to locate a
checkpoint where it bears arbitrarily or oppressively on
motorists as a class, and since field officers may stop only
those cars passing the checkpoint, there is less room for
abusive or harassing stops of individuals than there was in
the case of roving-patrol stops. Moreover, a claim that a
particular exercise of discretion in locating or operating a
checkpoint is unreasonable is subject to post-stop judicial
review." 37
Judicial notice is taken of the existence of COMELEC Resolution No. 2735 imposing a
gun ban during an election period issued pursuant to Section 52(c) of theOmnibus
Election Code (Batas Pambansa Blg. 881). 38 The national and local elections in 1995
having been held on May 8, the present incident, which occurred on April 10, 1995, was
well within the election period.

Although the general rule is that motorists and their vehicles as well as pedestrians
passing through checkpoints may only be subjected to a routine inspection, vehicles
may be stopped and extensively searched when there is probable cause which justifies
a reasonable belief of the men at the checkpoints that either the motorist is a law
offender or the contents of the vehicle are or have been instruments of some
offense. 39
Probable cause has been defined as such facts and
circumstances which could 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 searched. The required probable cause that
will justify a warrantless search and seizure is not determined by any
fixed formula but is resolved according to the facts of each case.
Warrantless search of the personal effects of an accused has been
declared by this Court as valid, because of existence of probable
cause, where the smell of marijuana emanated from a plastic bag
owned by the accused, or where the accused was acting
suspiciously, and attempted to flee. 40 (Emphasis supplied).
That probable cause existed to justify the search conducted by the police officers at
the checkpoint is gathered from the following testimony of SPO1 Goc-ong:

79

Q: You said you saw three on board a motorcycle what did your
unit do when these three persons approached?
A: We were waiting for them. When they arrived they stopped and
speeded away.
Q: What was your reaction when you saw the motor speeding
away?

A: I asked about that because I observed them to be acting

suspiciously as if they were afraid and different reactions
(sic).
Q: They were acting suspiciously?
A: Yes.
Q: That is what you have observed from their faces?

A: One of my men blew his whistle ordering to (sic) return back

(sic).
xxx xxx xxx

A: Yes, sir.
Q: What did Venecario do when you asked him about the
contents of that backpack?

Q: When they returned back (sic) what happened?

A: He said that it is a mat and passed it on to his companion.
A: When they returned back (sic) I asked them why they speeded
away?

Q: You said he passed it on to his companion, there were two (2)

companions, to whom did he pass it on?

Q: What did they answer?

A: He passed it on to Wates and Wates passed it on to Roble.
A: One of them said that he is a member of the army.
Q: What did Roble do when Wates passed it to him?
Q: If that person who said that he is a member of the army is in
court, can you point to him?
A: (Witness went down from the witness stand and pointed to a
man wearing yellow t-shirt who stood up and when asked
about his name answered that he is Victor
Venecario). acADIT
xxx xxx xxx
Q: What was your reaction when Venecario failed to show any
identification papers to show that he is really a member
of the army?

A: Roble returned it back (sic) to Venecario.

Q: So what was your reaction when you saw the three passing the
bag from one person to another?
A: My suspicion was it was a bomb and ordered my men to
scatter.
Q: Tell us why are you (sic) concerned about explosives was there
any incident prior to that checkpoint?
A: Election was past (sic) approaching and there was a threat that
Davao City will be bombed.

A: We saw his big backpack and asked him what was inside.
Q: Who was carrying that big backpack?

Q: Prior to that was there any incident?

xxx xxx xxx

A: Venecario.
xxx xxx xxx
Q: You said you asked him what was (sic) the contents of that
backpack, can you tell us why did you (sic) ask him?

A: In Ipil, Zamboanga on April 4.

Q: If you recall when was that?
A: April 4 of the same year.

80

Q: You said the bag was passed to Venecario and you told your
men to scatter, what happened next?

A: He answered that he has no ID.

A: I ordered Venecario to open the backpack.

Q: What was the reaction of the group when Venecario failed to

show any ID that he was an army man?

Q: What did Venecario do when you ordered him to open?

A: Our other companion moved closer as security.

A: They opened the backpack. 41

Q: Why?

SPO1 Goc-ong's testimony was corroborated by PO1 Vicente Carvajal:

Q: At about 10:45 in the evening of that date April 10, 1995 do you
recall of any unusual incident while you were conducting
that checkpoint?

A: We were on alert because on April 4 the one who attacked

were (sic) in uniform.
Q: At that time what was Venecario wearing?
A: He was in camouflage and wearing sleepers (sic).

A: Yes, sir.
xxx xxx xxx
Q: What was that incident all about?
Q: After that what happened?
A: At that time, while we were conducting a checkpoint, we saw
this motorcycle passing and flagged them to stop and
there were three (3) persons and one was manning and
they briefly stopped but speeded away.
xxx xxx xxx
Q: When these three (3) persons retured (sic) back (sic) what
happened?
A: The one riding introduced himself as a member of the army.

A: We were able to observe that he was carrying a bag.

Q: What was the reaction of Venecario when he was asked what
was (sic) the contents of the bag?
A: He appeared to be hesitant and he said that it contained
clothes.
Q: Before that what did Venecario do?
A: He placed it in (sic) his shoulder.

xxx xxx xxx

Q: You said these three persons were nervous and one of them
introduced himself as an army man, what did you do?

Q: What did he do with the backpack?

A: When asked he passed it to his other companions.

A: I asked for an ID.

Q: What did Venecario when he passed it to his companion?

Q: Who among you asked for an ID?

A: Venecario passed it to his companion and that companion

passed it to his other companion.

A: Sgt. Goc-ong.
Q: Where were you at that time when Goc-ong asked for his ID?

Q: After this companion received the backpack from his

companion what did he do?

A: I was behind him because I backed him up.

A: He returned back (sic) to Venecario.

Q: What was the reaction of Venecario when he was asked to

produce an ID?

Q: They passed it from one person to another until it was returned

to Venecario?

81

A: Yes, sir.

A: Yes.
xxx xxx xxx

Q: What happened after Crossing Parang?

Q: You said that backpack was passed from one person to

another and when he got hold of that backpack what
happened?

A: There was a person who blocked us.

A: He opened the backpack.

A: Yes.

Q: Who told him to open the backpack?

Q: A former soldier?

A: Sgt. Goc-ong. 42

A: No, Sir.

In light then of appellants' speeding away after noticing the checkpoint and even after
having been flagged down by police officers, their suspicious and nervous gestures
when interrogated on the contents of the backpack which they passed to one another,
and the reply of Vinecario, when asked why he and his co-appellants sped away from
the checkpoint, that he was a member of the Philippine Army, apparently in an attempt
to dissuade the policemen from proceeding with their inspection, there existed
probable cause to justify a reasonable belief on the part of the law enforcers that
appellants were offenders of the law or that the contents of the backpack were
instruments of some offense. AEHTIC
As to Vinecario's allegation that his constitutional rights were violated during the
custodial investigation conducted by the police officers, the same is relevant and
material only when an extrajudicial admission or confession extracted from an accused
becomes the basis of his conviction. 43 In the case at bar, the trial court convicted
appellants on the basis of the testimonies of the prosecution witnesses, particularly those
of SPO1 Haydenburge Goc-ong and PO1 Vicente Carvajal.
Finally, Vinecario harps on his defense of denial which he recounted as follows:
Q: After leaving the residence of your brother was there any
unusual incident that took place?
A: Yes, Sir.
Q: What was that?
A: The moment we arrived there there was a person who blocked
us.
Q: Where?
A: Parang Highway.
Q: Coming here to Davao?

Q: A former companion of yours?

Q: You said your former companion, am I correct?

A: Before I became a soldier, I worked in Emerson Plywood.
Q: So that person who flagged down you were (sic) your former
companion?
A: Yes:
Q: You are familiar with him?
A: I know him very well.
Q: He was your close friend?
A: Yes.
Q: What is the name of that person who stopped you?
A: Abdul Karim Datolarta.
Q: He was alone when he stopped you?
A: Yes, Sir.
Q: What happened when your friend Abdul Karin (sic) Datolarta
stopped you?
A: When he stopped us, I immediately disembarked from the motor
vehicle and shook hands with him.
Q: He was the one who stopped you or you were the one who told
the driver to stop?
A: My friend.

82

Q: You immediately recognized the face of that friend of yours?

Q: You did not become suspicious?

A: Not yet.

A: No more because I trusted the person and I have an

emergency to take (sic) that time. 44

Q: What else happened aside from shaking hands and greeting?

A: He asked me where I was heading.
Q: What was your answer?
A: I told him that I am going back to Davao.
Q: What else did he tell you?
A: He told me if he can also ride with us.
Q: What did you tell him?
A: I told him we were already three.
Q: What happened next?
A: Since I refused he asked me if I could bring his bag and he
mentioned the name of that cousin of his in Tagum.
Q: He mentioned the name?

Vinecario's account that in the evening of April 10, 1995, while he and his coappellants were cruising along the highway, a person whom he failed to recognize but
who turned out to be an acquaintance, Abdul Karim Datolarta, flagged down45 the
motorcycle, and as requested by Datolarta, he readily agreed to bring a backpack to
Datolarta's cousin without checking its contents is incredible, contrary to human
experience, and taxes credulity. Datolarta was not even apprehended nor presented
at the trial, thus further eliciting serious doubts on Vinecario's tale.
The defense of denial, like alibi, has invariably been viewed by the courts with disfavor
for it can just as easily be concocted and is a common and standard defense ploy in
most prosecutions of the Dangerous Drugs Act. 46
The categorical and consistent testimonies, and the positive identification by
prosecution witnesses SPO1 Goc-ong and PO1 Carvajal, against whom no ill motive to
falsely charge appellants was shown, must thus then prevail over the unconvincing alibi
and unsubstantiated denial of appellants.
As for the challenged finding by the trial court of conspiracy among appellants, the
same fails.

Q: Where in Tagum?

Conspiracy exists when two or more persons come to an agreement concerning the
commission of a crime and decide to commit it. 47 Where the acts of the accused
collectively and individually demonstrate the existence of a common design towards
the accomplishment of the same unlawful purpose, conspiracy is evident, and all the
perpetrators will be liable as principals. 48 To exempt himself from criminal liability, the
conspirator must have performed an overt act to dissociate or detach himself from the
unlawful plan to commit the crime. 49

A: Roxas, Tagum.

In People v. Concepcion, 50 this Court held:

A: Yes, Merly.
Q: What is the family name?
A: He just mentioned Merly who is residing in Tagum.

Q: What did you do when he asked you to bring that bag to his
cousin in Tagum?
A: I asked him what was (sic) the contents?
Q: What did he answer you?
A: He answered clothes.
Q: What did you do?

. . . Proof of agreement need not rest on direct evidence as the

same may be inferred from the conduct of the parties indicating a
common understanding among them with respect to the
commission of the offense. It is not necessary to show that two or
more persons met together and entered into an explicit
agreement setting out the details of an unlawful scheme or the
details by which an illegal objective is to be carried out. It may be
deduced from the mode and manner in which the offense was
perpetrated or inferred from the acts of the accused evincing a
joint or common purpose and design, concerted action and
community of interest.

A: Because were (sic) were in a hurry I slung it in (sic) my shoulder.

83

In the case at bar, as established by the evidence, appellants connived in unlawfully

transporting the subject marijuana. Roble, who was driving the motorcycle at Ulas, did
not stop but instead sped away upon seeing the checkpoint in a clear attempt to avoid
inspection by the police officers. When asked as to the contents of the backpack by
SPO1 Goc-ong, appellants passed the same to one another, indicating that they knew
its contents. These circumstances manifest appellants' concerted efforts and
cooperation towards the attainment of their criminal objective. ITScHa
Wates and Roble assail the credibility of prosecution witnesses SPO1 Goc-ong and PO1
Carvajal, they contending that these witnesses contradicted their testimonies-in-chief
when they subsequently testified on rebuttal that appellants were not nervous or
apprehensive at all when they were being inspected by the policemen.
It bears noting, however, that the alleged conflicting observations of SPO1 Goc-ong
and PO1 Carvajal referred to by Roble and Wates on their deportment pertain to
different stages of the checkpoint inspection as a scrutiny of the records reveals. Thus, in
his direct examination, SPO1 Goc-ong testified as follows:

A: Yes, sir.
Q: In fact they were pale, is that correct?
A: Yes.
Q: You noticed they were pale despite the fact that it was dark
and it was 10:00 o'clock in the evening?
A: There was light.
Q: The place was well-lighted?
A: Yes, sir. 52
On rebuttal, SPO1 Goc-ong stated that appellants were not anxious or
apprehensive when he flagged them down as they crossed the checkpoint. 53

Q: You said you asked him what was (sic) the contents of that
backpack, can you tell us why did you (sic) ask him?

PO1 Carvajal, on the other hand, testified on rebuttal that Wates was not nervousas
Vinecario's backpack was being opened. 54

A: I asked about that because I observed them to be acting

suspiciously as if they were afraid and different reactions
(sic).

As to the other alleged discrepancies pointed out by Wates and Roble, the following
arguments of the Office of the Solicitor General, which are quoted with approval,
should dispose of the same:

Q: They were acting suspiciously?

A: Yes.
Q: That is what you observed in their faces?
A: Yes, sir. 51
PO1 Carvajal, on cross-examination, echoed Goc-ong's observations on appellants'
deportment upon returning to the checkpoint:
Q: You said when these three (3) suspects riding the motorcycle
returned and stopped you said you noticed one of them
was nervous, did I get you right?
A: Yes, sir.
Q: Only one was nervous?
A: All of them.
Q: When you said they appeared to be nervous, could that mean
that they were trembling?

It is incorrect to suggest that just because SPO1 Goc-ong testified

that other vehicles passed through the checkpoint before the
appellants arrived, the latter could not have sped away from the
checkpoint. SPO1 Goc-ong did not give any testimony that other
vehicles were still at the checkpoint at the time the appellants
arrived. On the contrary, he testified there was no other vehicle
ahead of the appellants at the checkpoint when the latter arrived
on their motorcycle (TSN, June 17, 1999, p. 7).
It is also incorrect to suggest that appellants may not have noticed
the checkpoint just because SPO1 Goc-ong made no mention of
using reflectorized objects at the checkpoint. As described earlier
in his Brief, this witness explained that the checkpoint was visible
because it had a sign board at the middle of the road that read,
"COMELEC GUN BAN" (TSN, June 17, 1999, pp. 6 and 8). There
is no way for appellants not to have noticed the checkpoint. 55
In fine, appellants' defenses fail in light of their clearly proven act of delivering or
transporting marijuana.
The evidence shows that accused-appellant was apprehended in
the act of delivering or transporting illegal drugs. "Transport" as used
under the Dangerous Drugs Act is defined to mean: "to carry or
convey from one place to another." When accused-appellant

84

used his vehicle to convey the package containing marijuana to

an unknown destination, his act was part of the process of
transporting the said prohibited substance. Inherent in the crime of
transporting the prohibited drug is the use of a motor vehicle. The
very act of transporting a prohibited drug, like in the instant case, is
a malum prohibitum since it is punished as an offense under a
special law. The mere commission of the act constitutes the
offense and is sufficient to validly charge and convict an individual
committing the act, regardless of criminal intent. Since the
appellant was caught transporting marijuana, the crime
being mala prohibita, accused-appellant's intent, motive, or
knowledge, thereof need not be shown. 56 (Underscoring
supplied)
A word on the penalty. As provided in Section 4 of the Dangerous Drugs Act, the
penalty of reclusion perpetua to death and a fine ranging from five hundred thousand
pesos to ten million pesos shall be imposed upon any person who, unless authorized by
law, shall transport any prohibited drug. Section 20, Article IV of the same act provides
that the penalty imposed in Section 4 shall be applied if the dangerous drug is, with
respect to marijuana, 750 grams or more. In the case at bar, the marijuana involved
weighed 1,700 grams. Since the law prescribes two indivisible penalties, a resort to
Article 63 of the Revised Penal Code 57 is necessary. There being no mitigating nor
aggravating circumstance that attended the commission of the offense, the lesser
penalty of reclusion perpetuawas properly imposed by the trial court. A fine of
P500,000.00 should, however, been likewise imposed on the appellants in solidum in
accordance with the law.
WHEREFORE, the decision of the Regional Trial Court, Davao City, Branch 16, in Criminal
Case No. 35233-95 finding appellants Victor Vinecario, Arnold Roble and Gerlyn Wates
guilty beyond reasonable doubt of illegally transporting marijuana under Section 4,
Article II of Republic Act No. 6425, as amended, is hereby AFFIRMED with
MODIFICATION. As modified, appellants are sentenced to each suffer the penalty
of reclusion perpetua and solidarily pay a fine of P500,000.00.
SO ORDERED.
Vitug, Sandoval-Gutierrez and Corona, JJ., concur.
||| (People v. Vinecario, G.R. No. 141137, [January 20, 2004], 465 PHIL 192-220)

EN BANC
[G.R. No. 147786. January 20, 2004.]
PEOPLE OF THE PHILIPPINES, appellee, vs. ERIC GUILLERMO y
GARCIA, appellant.
DECISION
QUISUMBING, J p:
For automatic review is the judgment 1 of the Regional Trial Court (RTC) of Antipolo City,
Branch 73, dated March 7, 2001, in Criminal Case No. 98-14724, finding appellant Eric
Guillermo y Garcia guilty of murder and sentencing him to suffer the penalty of death.
In an Information dated March 23, 1998, appellant was charged by State Prosecutor
Jaime Augusto B. Valencia, Jr., of murdering his employer, Victor Francisco Keyser,
committed as follows:
That on or about the 22nd day of March 1998, in the Municipality of
Antipolo, Province of Rizal, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, armed with a
piece of wood and a saw, with intent to kill, by means of treachery
and with evident premeditation, did then and there willfully,
unlawfully and feloniously attack, assault and hit with a piece of
wood and thereafter, cut into pieces using said saw one Victor F.
Keyser, thereby inflicting upon the latter mortal injuries which
directly caused his death.
CONTRARY TO LAW. 2
When arraigned on April 3, 1998, the appellant, assisted by counsel de oficio, pleaded
guilty to the charge. 3
On April 23, 1998, however, appellant moved to withdraw his plea of guilty and prayed
for a re-arraignment. The trial court granted the motion and on April 28, 1998, he was rearraigned. Assisted by counsel de parte, he entered a plea of not guilty. 4 The case
then proceeded to trial.
The facts, as gleaned from the records, are as follows.

17- People v. Eric Guillermo, G.R. No. 147786, 20 January 2004

The victim, Victor Francisco Keyser, was the owner and manager of Keyser Plastic
Manufacturing Corp. (Keyser Plastics for brevity), with principal place of business at Sitio
Halang, Lornaville, San Roque, Antipolo City. 5 Keyser Plastics shared its building with
Greatmore Corporation, a manufacturer of faucets. 6 Separating the respective spaces
being utilized by the two firms in their operations was a wall, the lower portion of which
was made of concrete hollow blocks, while the upper portion was
of lawanit boards. 7 The part of the wall made of lawanit had two large holes, which
could allow a person on one side of the wall to see what was on the other side. 8

85

On March 22, 1998, prosecution witness Romualdo Campos, a security guard assigned
to Greatmore was on duty. At around 8:00 a.m., he saw appellant Eric G. Guillermo
enter the premises of Keyser Plastics. Campos ignored Guillermo, as he knew him to be
one of the trusted employees of Keyser Plastics. An hour later, he saw Victor F. Keyser
arrive. Keyser checked the pump motor of the deep well, which was located in the
area of Greatmore, after which he also went inside the part of the building occupied by
Keyser Plastics. 9 Campos paid scant attention to Keyser.
Later, at around 10:00 a.m., Campos was making some entries in his logbook, when he
heard some loud noises ("kalabugan") coming from the Keyser Plastics area. He stopped
to listen, but thinking that the noise was coming from the machines used to make
plastics, he did not pay much attention to the sound. 10
At around noontime, Campos was suddenly interrupted in the performance of his duties
when he saw appellant Guillermo look through one of the holes in the dividing wall.
According to Campos, appellant calmly told him that he had killed Victor Keyser and
needed Campos' assistance to help him carry the corpse to the garbage dump where
he could burn it. 11 Shocked by this revelation, Campos immediately dashed off to
telephone the police. The police told him to immediately secure the premises and not
let the suspect escape, 12 while a reaction team was being dispatched to the scene.
Ten minutes later, a team composed of SPO4 Felix Bautista, SPO1 Carlito Reyes, and
Police Aide Jovenal Dizon, Jr., all from the Antipolo Philippine National Police (PNP)
Station, arrived at the crime scene. With them was Felix Marcelo, an official police
photographer. 13 They were immediately met by Campos, who informed them that
Guillermo was still inside the building. The law enforcers tried to enter the premises of
Keyser Plastics, but found the gates securely locked. The officers then talked to
Guillermo and after some minutes, persuaded him to give them the keys. This enabled
the police to open the gate. Once inside, SPO4 Bautista and SPO1 Reyes immediately
accosted Guillermo who told them, "Sir, hindi ako lalaban, susuko ako, haharapin ko ito."
("Sir, I shall not fight you, I am surrendering, and I shall face the
consequences.") 14 Guillermo was clad only in a pair of shorts, naked from the waist up.
SPO1 Reyes then asked him where the body of the victim was and Guillermo pointed to
some cardboard boxes. On opening the boxes, the police found the dismembered
limbs and chopped torso of Victor F. Keyser. The victim's head was found stuffed inside a
cement bag. 15
When the police asked how he did it, according to the prosecution witness, Guillermo
said that he bashed the victim on the head with a piece of wood, and after Keyser fell,
he dismembered the body with a carpenter's saw. He then mopped up the blood on
the floor with a plastic foam. Guillermo then turned over to the police a bloodstained,
two-foot long piece of coconut lumber and a carpenter's saw. 16 Photographs were
taken of the suspect, the dismembered corpse, and the implements used in committing
the crime. When asked as to his motive for the killing, Guillermo replied that Keyser had
been maltreating him and his co-employees. 17 He expressed no regret whatsoever
about his actions. 18
The police then brought Guillermo to the Antipolo PNP Station for further investigation.
SPO1 Carlos conducted the investigation, without apprising the appellant about his
constitutional rights and without providing him with the services of counsel. SPO1 Carlos

requested the National Bureau of Investigation (NBI) to conduct a post-mortem

examination on Keyser's remains. The Antipolo police then turned over the bloodstained
piece of wood and saw, recovered from the locus delicti, to the PNP Crime Laboratory
for testing.
Dr. Ravell Ronald R. Baluyot, a medico-legal officer of the NBI, autopsied Keyser's
remains. He found that the cadaver had been cut into seven (7) pieces. 19 He found
that the head had sustained thirteen (13) contusions, abrasions, and other traumatic
injuries, 20 all of which had been caused by "forcible contact with hard blunt
object," 21 such as a "lead pipe, baseball bat, or a piece of wood." 22 He found the
cause of death to be "traumatic head injury." 23 Dr. Baluyot declared that since the
amputated body parts had irregular edges on the soft tissues, it was most likely that a
sharp-edged, toothed instrument, like a saw, had been used to mutilate the
corpse. 24 He further declared that it was possible that the victim was dead when sawn
into pieces, due to cyanosis or the presence of stagnant blood in the body, 25 but on
cross-examination, he admitted that he could not discount the possibility that the victim
might still have been alive when mutilated. 26
Dr. Olga Bausa, medico-legal pathologist of the PNP Crime Laboratory, testified that she
subjected the bloodstained piece of coco lumber as well as the saw recovered from
the crime scene to a biochemical examination to determine if the bloodstains were of
human origin. Both tested positive for the presence of human blood. 27 However, she
could not determine if the blood was of the same type as that of the victim owing to
the insufficient amount of bloodstains on the items tested. 28
Keyser's death shocked the nation. Appellant Guillermo, who was then in police
custody, was interviewed on separate occasions by two TV reporters, namely: Augusto
"Gus" Abelgas of ABS-CBN News and Kara David of GMA Channel 7. Both interviews
were subsequently broadcast nationwide. Appellant admitted to David that he
committed the crime and never gave it second thought. 29 He disclosed to David the
details of the crime, including how he struck Keyser on the head and cut up his body
into pieces, which he placed in sacks and cartons. 30 When asked why he killed his
employer, Guillermo stated that Keyser had not paid him for years, did not feed him
properly, and treated him "like an animal." 31 Both Abelgas and David said that
Guillermo expressed absolutely no remorse over his alleged misdeed during the course
of their respective interviews with him. 32
At the trial, appellant Guillermo's defense consisted of outright denial. He alleged he
was a victim of police "frame-up." He testified that he had been an employee of Keyser
for more than a year prior to the latter's death. On the date of the incident, he was all
alone at the Keyser Plastics factory compound as a "stay-in" employee. Other
employees have left allegedly due to Keyser's maltreatment of them. 33
In the morning of March 22, 1998, appellant said Keyser instructed him to report for
overtime work in the afternoon. He proceeded to the factory premises at one o'clock in
the afternoon, but since his employer was not around, he said, he just sat and waited till
he fell asleep. 34 He was awakened sometime later when he heard people calling him
from outside. He then looked out and saw persons with firearms, who told him that they
wanted to enter the factory. Once inside, they immediately handcuffed him and
looked around the premises. When they returned, they were carrying boxes and sacks.

86

He said he was then brought to the police station where he was advised to admit
having killed his employer since there was no other person to be blamed. 35 When he
was made to face the media reporters, he said the police instructed him what to
say. 36 He claimed that he could no longer recall what he told the reporters. The
appellant denied having any grudge or ill feelings against his employer or his family.

THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF

THE ACCUSED-APPELLANT FOR THE CRIME OF MURDER HAS BEEN
PROVEN BEYOND REASONABLE DOUBT.

On cross-examination, appellant admitted that he was the shirtless person in the

photographs taken at the crime scene, while the persons with him in the photographs
were policemen wearing uniforms. 37 He likewise admitted that the cartons and sacks
found by the police inside the factory premises contained the mutilated remains of his
employer. 38 He claimed, however, that he was surprised by the contents of said
cartons and sacks. 39 Appellant admitted that a bloodstained piece of wood and a
saw were also recovered by the police, but he insisted that the police made him hold
the saw when they took photographs. 40

THE COURT A QUO ERRED IN IMPOSING THE EXTREME PENALTY OF

DEATH.

The trial court disbelieved appellant's version of the incident, but found the prosecution's
evidence against him weighty and worthy of credence. It convicted the appellant,
thus:
The guilt of the accused has been proven beyond reasonable
doubt to the crime of murder as charged in [the] information.
WHEREFORE, the accused is meted the maximum penalty and is
hereby sentenced to die by lethal injection.
The accused is also hereby ordered to pay the mother of the
victim, Victor Keyser, the following amounts:
1. Death Indemnity P50,000.00
2. Funeral Expenses P50,000.00
3. Compensatory Damages P500,000.00
4. Moral Damages P500,000.00
5. Exemplary Damages P300,000.00
6. Attorney's Fees P100,000.00
plus P3,000.00 per Court appearance.
SO ORDERED. 41
Hence, the case is now before us for automatic review.
In his brief, appellant assigns the following errors:
I

II

III
THE COURT A QUO GRAVELY ERRED IN AWARDING THE FOLLOWING
DAMAGES: DEATH INDEMNITY P50,000.00; FUNERAL EXPENSES
P50,000.00; COMPENSATORY DAMAGES P500,000.00; MORAL
DAMAGES P500,000.00; EXEMPLARY DAMAGES P300,000.00; AND
ATTORNEY'S FEES OF P 100,000.00 PLUS P3,000 PER COURT
APPEARANCE. 42
Briefly stated, the issues for resolution concern: (1) the sufficiency of the prosecution's
evidence to prove the appellant's guilt beyond .reasonable doubt; (2) the propriety of
the death penalty imposed on appellant; and (3) the correctness of the award of
damages.
Appellant contends that his conviction was based on inadmissible evidence. He points
out that there is no clear showing that he was informed of his constitutional rights nor
was he made to understand the same by the police investigators. In fact, he says, he
was only made to read said rights in printed form posed on the wall at the police
precinct. He was not provided with the services of counsel during the custodial
investigation, as admitted by SPO1 Reyes. In view of no showing on record that he had
waived his constitutional rights, appellant argues that any evidence gathered from him,
including his alleged confession, must be deemed inadmissible.
For the State, the Office of the Solicitor General (OSG) counters that the evidence
clearly shows that the appellant admitted committing the crime in several instances, not
just during the custodial investigation. First, he admitted having killed his employer to the
security guard, Campos, and even sought Campos' help in disposing of Keyser's body.
This admission may be treated as part of the res gestae and does not partake of
uncounselled extrajudicial confession, according to the OSG. Thus, OSG contends said
statement is admissible as evidence against the appellant. Second, the appellant's
statements before members of the media are likewise admissible in evidence,
according to the OSG, as these statements were made in response to questions by
news reporters, not by police or other investigating officer. The OSG stresses that
appellant was interviewed by media on two separate occasions, and each time he
made free and voluntary statements admitting his guilt before the news reporters. He
even supplied the details on how he committed the crime. Third, the OSG points out
that appellant voluntarily confessed to the killing even before the police could enter the
premises and even before any question could be posed to him. Furthermore, after the
police investigators had entered the factory, the appellant pointed to the place where
Keyser's corpse was found. The OSG submits that at these points in time, appellant was

87

not yet under custodial investigation. Rather his statements to the police at the crime
scene were spontaneous and voluntary, not elicited through questioning, and hence
must be treated as part of the res gestae and thus, says the OSG, admissible in
evidence.
The OSG contends that not every statement made to the police by a suspect in a crime
falls within the ambit of constitutional protection. Hence, if not made under "custodial
investigation" or "under investigation for the commission of an offense," the statement is
not protected by the Bill of Rights.
However, in our view, the confession appellant made while he was under investigation
by SPO1 Carlito Reyes for the killing of Keyser at the Antipolo PNP Station, falls short of
the protective standards laid down by the Constitution.Under Article III of the
Constitution, 43 a confession to be admissible must satisfy the following requisites: (a) the
confession must be voluntary; (b) the confession must be made with the assistance of
competent and independent counsel; (c) the confession must be express; and (d) the
confession must be in writing. 44 In the instant case, the testimony of SPO1 Reyes on
cross-examination clearly shows the cavalier treatment by the police of said
constitutional guarantees. This can readily be gleaned from the transcript of Reyes'
testimony, which we excerpt:
Q: What did you do next upon arriving at the police station?
A: When we arrived at the police station, I pointed to him and
asked him to read what was written on the wall which
was his constitutional rights.

COURT:
Proceed.
DEFENSE COUNSEL:
Who were present at the police station during your investigation?
A: There were many people around when I conducted the
investigation at the police station. My companions were
there but I do not know the other persons who were
present.
Q: How was the investigation that you conducted at the police
station?
A: I inquired again from Eric Guillermo why he did it, the reason
why he did it.
Q: And was your investigation being recorded in the police
station?
A: No, ma'm.
Q: Let me just clarify, I did not mean like a tape recorder. Was it
written?

Q: Did he read the same?

A: I only asked him but it was not written down or recorded.

A: Yes, ma'm.

Q: During the investigation, was there any lawyer or counsel that

was called during the investigation?

Q: Did you ask the accused if he did understand what he read?

A: Yes, ma'm.
Q: So Mr. Witness, you did continue your investigation at the police
station?
A: Yes, ma'm.
COURT:
What did the accused say when you asked him if he understood
what was written on the wall which was his constitutional
rights?
A: He said he understood what was written on the wall and he
has noregrets.

A: None, ma'm.
Q: Did you inform the accused that he has the right to get a
counsel during the investigation?
A: Yes, ma'm.
Q: What did the accused say, Mr. Witness?
A: He did not utter any word.
Q: During the investigation at the police station, did you exert effort
to provide him with counsel before you asked him
questions?
A: No, ma'm.

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Q: Why?
A: Because during that time, it was Sunday afternoon and there
wasno counsel around and because he already
admitted that he perpetrated the crime and that was
explained to him, his constitutional rights which was on
the wall. We did not provide anymore a counsel.
Q: I would just like to ask the reason why you made the accused
read the written rights that was posted on the wall of your
police station?
A: So that he would be apprised of his constitutional rights.
Q: So, you mean that you made him understand his rights?
A: Yes, ma'm.
Q: So, you mean to say before you asked him to read his rights, you
presumed that he does not understand what his
constitutional rights are?
A: I think he knows his constitutional rights because he admitted
the crime.
Q: And did the accused understand his rights?
A: I believe he understood because he answered, "wala akong
dapat pagsisihan." ("I have nothing to regret."). 45
Appellant's alleged confession at the police station lacks the safeguards required by the
Bill of Rights. The investigating officer made no serious effort to make appellant aware of
his basic rights under custodial investigation. While the investigating officer was aware of
the appellant's right to be represented by counsel, the officer exerted no effort to
provide him with one on the flimsy excuse that it was a Sunday. Despite the absence of
counsel, the officer proceeded with said investigation. Moreover, the record is bare of
any showing that appellant had waived his constitutional rights in writing and in the
presence of counsel. As well said in People v. Dano, even if the admission or confession
of an accused is gospel truth, if it was made without the assistance of counsel, it is
inadmissible in evidence regardless of the absence of coercion or even if it had been
voluntarily given. 46
The right of a person under interrogation "to be informed" implies a correlative obligation
on the part of the police investigator to explain and contemplates an effective
communication that results in an understanding of what is conveyed. 47Absent that
understanding, there is a denial of the right "to be informed," as it cannot be said that
the person has been truly "informed" of his rights. Ceremonial shortcuts in the
communication of abstract constitutional principles ought not be allowed for it
diminishes the liberty of the person facing custodial investigation.

Be that as it may, however, the inadmissibility of the appellant's confession to SPO1

Reyes at the Antipolo PNP Station as evidence does not necessarily lead to his acquittal.
For constitutional safeguards on custodial investigation (known, also as
the Miranda principles) do not apply to spontaneous statements, or those not elicited
through questioning by law enforcement authorities but given in an ordinary manner
whereby the appellant verbally admits to having committed the offense. The rights
enumerated in the Constitution, Article III, Section 12, are meant to preclude the
slightest use of the State's coercive power as would lead an accused to admit
something false. But it is not intended to prevent him from freely and voluntarily
admitting the truth outside the sphere of such power.
The facts in this case clearly show that appellant admitted the commission of the crime
not just to the police but also to private individuals. According to the testimony of the
security guard, Romualdo Campos, on the very day of the killing the appellant called
him to say that he had killed his employer and needed assistance to dispose of the
cadaver. Campos' testimony was not rebutted by the defense. As the Solicitor General
points out, appellant's statements to Campos are admissible for being part of the res
gestae. Under the Rules of Court, 48 a declaration is deemed part of the res gestae and
admissible in evidence as an exception to the hearsay rule when the following requisites
concur: (1) the principal act, the res gestae is a startling occurrence; (2) the statements
were made before the declarant had time to contrive or devise; and (3) the statements
must concern the occurrence in question and its immediately attending
circumstances. 49 All these requisites are present in the instant case. Appellant had just
been through a startling and gruesome occurrence, the death of his employer. His
admission to Campos was made while he was still under the influence of said startling
occurrence and before he had an opportunity to concoct or contrive a story. His
declaration to Campos concerned the circumstances surrounding the killing of Keyser.
Appellant's spontaneous statements made to a private security guard, not an agent of
the State or a law enforcer, are not covered by the Miranda principles and, as res
gestate, admissible in evidence against him.
Further, when interviewed on separate occasions by the media, appellant not only
agreed to be interviewed by the news reporters, but he spontaneously admitted his guilt
to them. He even supplied the details regarding the commission of the crime to reporter
Kara David of GMA Channel 7, who testified in court, to wit:
PUBLIC PROSECUTOR:
Q: Could you tell us what you found out in the interview?
A: The first question I think I asked was, if he admits the crime and
he gladly said yes he did it, the details about the crime,
how he saw the body and where he put it, and the
reason why he did it.
xxx xxx xxx
COURT:

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To what crime did he admit?

A: He said he got mad with (sic) his boss, so he got a piece of
wood,"dos por dos," he hit his boss in the back and then
after that, I think he got a saw and sawed the body to
eight pieces.
xxx xxx xxx
PUBLIC PROSECUTOR:
You said the interview was done inside the room of Col. Quintana,
how many were you inside the room at that time?
A: I really could not remember but I was with my cameraman, an
assistant, Col. Quintana and I think two more escorts. I
could not remember the others.
Q: You mentioned a while ago that he gladly admitted what he
did, can you explain gladly admitted?
A: Usually when I interview suspects, either they deny or [are] in
hysterics, but Eric seems (sic) calm when I interviewed
him.
I said, "ginawa mo ba ang krimen," and he said, "Oo." "Hindi ka ba
nagdalawang isip?" "Hindi." It was kind of eerie.
Q: You also mentioned that he gave details of the crime he
committed, aside from what you already mentioned like
his boss being hit in the head and cut to eight pieces,
what did he tell you?
A: He told me where he put it, like he looked for sacks and cartons,
and he told me where he put the head but I could not
remember.
But I remember him saying he put the head in the bag and he said
he asked help from the security guard, Campos. Basically,
that's it. And he told me the reason why he did it.
Q: Why did he do it?
A: Because he was not being paid for what he has done and Mr.
Keyser treated him like an animal, things like that.
He said that what he did was just right, just justice. 50

The TV news reporters' testimonies on record show that they were acting as media
professionals when they interviewed appellant. They were not under the direction and
control of the police. There was no coercion for appellant to face the TV cameras. The
record also shows that the interviews took place on several occasions, not just once.
Each time, the appellant did not protest or insist on his innocence. Instead, he
repeatedly admitted what he had done. He even supplied details of Keyser's killing. As
held in Andan, statements spontaneously made by a suspect to news reporters during a
televised interview are voluntary and admissible in evidence. 51
Thus, we have no hesitation in saying that, despite the inadmissibility of appellant's
alleged confession to the police, the prosecution has amply proven the appellant's guilt
in the killing of Victor F. Keyser. The bare denial raised by the appellant in open court
pales in contrast to the spontaneous and vivid out-of-court admissions he made to
security guard Campos and the two media reporters, Abelgas and David. The positive
evidence, including the instruments of the crime, together with the medical evidence as
well as the testimonies of credible prosecution witnesses, leaves us no doubt that
appellant killed his employer, Victor Francisco Keyser, in the gruesome manner vividly
described before the trial court.
But was appellant's offense murder for which appellant should suffer the death penalty,
or only homicide for which a lesser penalty is appropriate?
Appellant argues that the prosecution failed to prove either treachery or evident
premeditation to qualify the killing as murder. He points out that there was not a single
eyewitness to show how the crime was committed and hence, absent an eyewitness to
show the manner in which the crime was committed, he cannot be held liable for
murder.
For the appellee, the OSG submits that as recounted by the appellant himself, he
repeatedly struck the victim, with a piece of coco lumber (dos por dos), at the back of
his head, while the victim's back was turned towards him. The suddenness of the attack,
coupled with the manner in which it was executed clearly indicates treachery. The OSG
agrees with appellant, however, that evident premeditation was not adequately
established. Hence, we shall now deal only with the disputed circumstance, treachery.
Treachery or alevosia is present when the offender commits any crime against persons
employing means, methods or forms in the execution thereof, which tend directly and
specially to insure its execution without risk to the offender arising from any defense
which the offended party might make. 52 Two essential requisites must concur for
treachery to be appreciated: (a) the employment of means of execution that gives the
person attacked no opportunity to defend himself or to retaliate; and (b) the said
means of execution was deliberately or consciously adopted. 53

A qualifying circumstance like treachery changes the nature of the crime and increases
the imposable penalties for the offense. Hence, like the delict itself, it must be proven
beyond reasonable doubt. 54 In the instant case, we find insufficient the prosecution's
evidence to prove that the attack on the victim came without warning and that he had

90

absolutely no opportunity to defend himself, or to escape. None of the prosecution

witnesses could know how the attack was initiated or carried out, simply because there
was no eyewitness to the offense. In addition, appellant's narration in his taped interview
with Channel 7 is not too clear on this point, thus:

I would like also to ask from your medical knowledge thru the
blows that the deceased received in his head which
caused the head injury, would you be able to ascertain
also in what position was the attacker or where the
attacker was?

ERIC GUILLERMO:
Mura pa rin ng mura. Nagtataka ako kung bakit ganoon na
lamang kainit ito. Bigla niya akong inano dito sa batok ko
tapos itinuturo niya ang dito ko (pointing to his head)
itinuturoturo niya ang dito ko.
Ayon mura ng mura, hindi ko napigilan ang sarili ko, dinampot ko
iyong kahoy.
ARNOLD CLAVIO:

A: Based on the location of the injuries at the head, it would be

very difficult to determine the relative position of the
victim and assailant as well as the position of the victim
when he sustained said injury, because there are injuries
located at the front, at the left and right portions of the
head although there were none located at the
back (stress supplied). Based on these injuries, I would say
that the position would probably be maybe in front,
maybe to the left or the right in order for him to inflict the
injuries to the front, to the left and right sides of the
head. 57

Sa mga oras na 'yon, nagdilim, napuno ng galit ang kanyang

mga mata, nakita niya ang isang dos por dos sa kanyang
tabi at agad dinampot habang nakatalikod ang
kanyang amo.

Noteworthy, Dr. Baluyot pointed out that based on the injuries sustained by the victim,
there is an indication that he tried to defend himself against the blows being inflicted
upon him, thus:

ERIC GUILLERMO:

PUBLIC PROSECUTOR:

Nang gawin ko sa sarili ko iyon kalmadong kalmado ako noong

ginawa ko 'yon. Nasa sarili ako noong ginawa ko iyon.
ARNOLD CLAVIO:
Hawak ang mahabang kahoy, hinampas ni Eric si Mr. Keyser,
hinampas hanggang sa mawalan ng malay. Tila hindi pa
nakuntento sa kanyang nagawa, napagbalingan naman
ni Eric ang isang lagare sa kanyang tabi at isinagawa na
ang karumal-dumal na krimen. 55
From the foregoing, all that can be discerned is that the victim was scolding the
appellant, and the victim's back was turned towards the appellant when the latter
picked up the piece of wood. It does not, however, show that there was any deliberate
effort on the part of the appellant to adopt the particular means, method, or form of
attack to ensure the commission of the crime without affording the victim any means to
defend himself.
Dr. Ravell Ronald R. Baluyot, the NBI pathologist who autopsied the victim's body,
observed that it was difficult to determine the position of the victim in relation to his
assailant. 56 Nor was the expert testimony of Dr. Baluyot definitive as to the relative
position of the assailant and the victim, to wit:
DEFENSE COUNSEL:

Q: The wound that you found at the back of the hand, which is at
the back of the right hand, would you characterize this as
[a] defense wound?
A: It is a defense wound. All injuries especially at the upper
extremities they could be tagged as defense wounds to
fend off. . . attacks and these upper extremities are
usually used to protect the head and the body. 58
The gap in the prosecution's evidence cannot be filled with mere speculation.
Treachery cannot be appreciated absent the particulars as to the manner in which the
aggression commenced or how the act unfolded and resulted in the victim's
demise. 59 Any doubt as to its existence must, perforce, be resolved in favor of
appellant.
One attendant circumstance, however, is amply proved by the prosecution's evidence
which shows that the victim's corpse was sawn by appellant into seven (7) pieces. Under
Art. 248 (6) of the Revised Penal Code, "outraging or scoffing at the corpse" is a
qualifying circumstance. Dismemberment of a dead body is one manner of outraging
or scoffing at the corpse of the victim. 60 In the instant case, the corpse of Victor F.
Keyser was dismembered by appellant who sawed off the head, limbs, and torso. The
Information categorically alleges this qualifying circumstance, when it stated that the
appellant "thereafter, cut into pieces using said saw one Victor F. Keyser." This being the
case, as proved by the prosecution, appellant is guilty not just of homicide but of
murder.

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The penalty for murder is reclusion perpetua to death. There being neither aggravating
nor mitigating circumstances in the instant case, the lesser penalty ofreclusion
perpetua should be imposed upon appellant. 61
Both appellant and appellee claim that the trial court erred in awarding damages. They
submit that the trial court's award of P50,000.00 for funeral expenses has insufficient
basis, for only receipts amounting to P38,068.00 as proof of funeral expenses were
presented in evidence. Thus, this award should be reduced accordingly. Concerning
the award of moral damages in the amount of P500,000, compensatory damages also
for P500,000 and exemplary damages in the amount of P300,000, appellant submits that
these cited sums are exorbitant, and not in accord with prevailing jurisprudence. The
OSG agrees, hence modification of said amounts is in order.
The amount of moral damages should be reduced to P50,000, pursuant to prevailing
jurisprudence, as the purpose for such award is to compensate the heirs of the victim for
the injuries to their feelings and not to enrich them. 62Award of exemplary damages is
justified in view of the gruesome mutilation of the victim's corpse, but the amount
thereof should also be reduced to only P25,000, following current case law.
The award of P500,000 in compensatory damages lacks proof and ought to be deleted.
The victim's mother, Remedios Keyser, testified that the victim was earning around
P50,000.00 a month 63 as shown in the receipt issued by Rosetti Electronics Phils.
Co. 64 However, said receipt shows that it was made out to her, and not the victim.
Moreover, it does not show what period is covered by the receipt. Hence, the actual
value of the loss of earning capacity was not adequately established. Awards for the
loss of earning capacity partake of the nature of damages, and must be proved not
only by credible and satisfactory evidence but also by unbiased proof. 65
Civil indemnity for the victim's death, however, was left out by the trial court, although
now it is automatically granted without need of proof other than the fact of the
commission of the crime. 66 Hence, conformably with prevailing jurisprudence, the
amount of P50,000.00 as civil indemnity should be awarded in favor of the victim's heirs.
Nothing on the record shows the actual expenses incurred by the heirs of the victim for
attorney's fees and lawyer's appearance fees. Attorney's fees are in the concept of
actual or compensatory damages and allowed under the circumstances provided for
in Article 2208 of the Civil Code, 67 one of which is when the court deems it just and
equitable that attorney's fees should be recovered. 68 In this case, we find an award of
P25,000 in attorney's fees and litigation expenses reasonable and equitable.

WHEREFORE, the assailed judgment of the Regional Trial Court of Antipolo City, Branch
73, dated March 7, 2001 in Criminal Case No. 98-14724, finding appellant ERIC
GUILLERMO y GARCIA GUILTY of the murder of Victor Francisco Keyser is AFFIRMED with
MODIFICATION. Appellant's sentence is hereby REDUCED TO RECLUSION PERPETUA. He is
also ORDERED to pay the heirs of the victim, Victor Francisco Keyser, the sum of

P50,000.00 as civil indemnity, P38,068.00 as actual damages, P50,000.00 as moral

damages, P25,000.00 as exemplary damages, and P25,000.00 as attorney's fees, without
subsidiary imprisonment in case of insolvency. Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur.
||| (People v. Guillermo y Garcia, G.R. No. 147786, [January 20, 2004], 465 PHIL 248275)

18- People v. Lita Ayangao, G.R. No. 142356, 14 April 2004

THIRD DIVISION
[G.R. No. 142356. April 14, 2004.]
PEOPLE OF THE PHILIPPINES, appellee, vs. LITA AYANGAO y
BATONG-OG, appellant.
DECISION
CORONA, J p:
This is an appeal from the February 29, 2000 decision 1 of the Regional Trial Court,
Branch 59, Angeles City in Criminal Case no. 99-1261 convicting the appellant of
violating Section 4, Article 2 of RA 7659, as amended, also known as the Dangerous
Drugs Act. ACIESH
Appellant Lita Ayangao was charged with transporting 14.75 kilograms of marijuana in
an information 2 that read:
That on or about the 13th day of August, 1999, in the Municipality
of Mabalacat, Province of Pampanga, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
LITA AYANGAO y BATONG-OG, without any authority of law, did
then and there wilfully, unlawfully and feloniously dispatch in transit
or transport fifteen (15) bricks of dried marijuana leaves with the
actual total weight of FOURTEEN KILOGRAMS AND SEVENTY FIVE
HUNDREDTHS (14.75) of kilogram, a prohibited drug. IEAa
cS

92

The appellant, through counsel, filed a motion to quash on the ground that the facts
charged did not constitute an offense. This was denied by the trial court. Upon
arraignment, the appellant pleaded not guilty. 3 Thereafter, trial ensued.
The prosecution presented three witnesses: PO3 Nestor Galvez, PO3 Bienvenido Sagum
and Chief Forensic Chemist Daisy Panganiban-Babor. The prosecution's version 4 of the
facts, as aptly summarized by the trial court, was:
Two weeks before August 13, 1999, PO3 Bienvenido Sagum and
PO3 Nestor A. Galvez, members of the Criminal Detection and
Intelligence Group based at Diamond Subdivision, Balibago,
Angeles City, received information from one of their informants that
a certain woman from Mountain Province delivers dried marijuana
leaves for sale at Sapang Biabas, Mabalacat, Pampanga to some
drug pushers. Said information was also relayed by the informant to
C/Insp. Rhodel O. Sermonia who instructed the two operatives to
conduct surveillance operation against their target female who
was described by their informant as about 50 years old, 5 feet in
height, straight long hair and coming from Kalinga province.
At around 5:00 o'clock in the morning of August 13, 1999, their
informant went to their headquarters and informed them that their
suspect is due to arrive at Sapang Biabas, Mabalacat. PO3 Sagum
and PO3 Galvez, together with the informant, immediately went to
Sapang Biabas and parked their car near the entrance of the road
going to Sapang Biabas. While they were in their car, the informer
pointed to them a woman bearing the same description given by
the former. The woman alighted from the tricycle and subsequently
loaded two sacks with camote fruits on top. The two officers
proceeded to the place where the woman was and noticed
marijuana dried leaves protruding through a hole of one of the
sacks. Sagum and Galvez introduced themselves as police officers
and requested the woman to put out the contents of the said
sacks. The sacks yielded sweet potatoes mixed with 15 brick-like
substance wrapped in brown paper and masking tape. A brick,
which was damaged on the side and in plain view of the officers
revealed dried marijuana leaves. The woman who was arrested
identified herself as accused Lita Ayangao y Batong-Og of
Lacnog, Agbanawag Tabuk, Kalinga Province. Ayangao and the
suspected dried marijuana leaves were brought to the police
officer's headquarter at Diamond Subdivision, Angeles City. The
evidence confiscated from the accused were sent to the PNP
Crime Laboratory at Camp Olivas where it was examined by Chief
Forensic Chemist Daisy P. Babor. The Initial Laboratory Report issued
indicated that the specimens from the 15 bricks of suspected dried
marijuana leaves weighing 14.75 kilograms were found to be
positive for marijuana.

The defense, through the testimonies of the appellant and Reynaldo

Nunag,purok chairman of Sitio Makabakle, presented a different version, again
summarized by the trial court: 5
Accused Lita Ayangao denied the charge made against her and
alleged that she has nothing to do with the marijuana allegedly
found in her possession. She went to Sapang Biabas "Marimar,"
Camachile, Mabalacat, Pampanga from Tabuk, Kalinga Province
on August 13, 1999 only upon the request of a certain Magda
Dumpao. Allegedly, Magda bought a house in Mawaque,
Mabalacat and learned that it was being sold again. Magda then
requested her (accused) to talk to Jaime Alarcon who acted as
Magda's agent in buying the house. It was Magda who instructed
her on how to go to the house of Jaime Alarcon. She arrived at the
house of Alarcon at around 3:00 o'clock in the morning and was
welcomed inside by Gloria and Jocelyn Alarcon, Jaime's wife and
daughter-in-law. As Jaime was not around, she asked the Alarcon's
permission if she can have a nap. Gloria and Jocelyn allowed her
to sleep on the sofa and while she was resting, at around 6:00
o'clock in the morning, somebody knocked at the door. Gloria
opened it and two men, who identified themselves as CIS agents,
told Gloria that they were looking for somebody who came from
Baguio City. One of the men went to where she was then lying and
asked Gloria who she was. Gloria answered that she came from
Tabuk. The police officers asked her (accused) to go with them as
they wanted to talk to her. When she refused, the policemen
forced her out of the house and boarded her to their car. While
she was inside the car, she saw a sack and a carton box. The
police brought her to their headquarters at Diamond Subd.,
Angeles City. She was made to sit in a chair and in her view, the
sack was opened and its contents were placed in (sic) a table. She
then heard from the policemen that the contents of the sack were
marijuana and accused her of owning it.
Reynaldo Nunag, purok chairman of Sitio Makabakle, Marimar,
Biabas, Mabalacat, Pampanga, testified that, as tricycle driver
whose terminal is near the house of Jaime Alarcon, he did not see
any unusual incident that happened in said vicinity in the morning
of August 13, 1999. He also did not see how the accused was
arrested and did not see the policemen's car.
The trial court found the prosecution's version to be credible, reasoning that appellant's
defense of frame-up was not supported by evidence and thus could not prevail over
the testimonies of the prosecution witnesses. The law enforcer's testimonies carried the
presumption of regularity in the performance of official duties. The dispositive portion of
the decision read:
WHEREFORE, premises considered, accused Lita Ayangao y
Batong-og is found GUILTY beyond reasonable doubt of violating
Section 4 of Article II of R.A. 6425 as amended by R.A. 7659 by

93

transporting fourteen kilograms and seventy five hundredths (14.75)

of a kilogram of marijuana, a prohibited drug, without authority.
Said accused is hereby sentenced to suffer the penalty of reclusion
perpetua. Accused Lita Ayangao-Batong-og (sic) is further ordered
to pay a fine of five hundred thousand (P500,000.00) pesos.
SO ORDERED. 6
The following assignments of error are raised in this appeal: 7
I.
THE LOWER COURT ERRED IN GIVING FULL FAITH AND CREDENCE TO
THE TESTIMONIES OF THE PROSECUTION WITNESSES DESPITE EXISTING
SERIOUS INCONSISTENCIES AND INCREDIBILITY THEREBY CREATING
DOUBT REGARDING THEIR TRUTHFULNESS AND CREDIBILITY.
II.
THE TRIAL COURT ERRED IN NOT CONSIDERING FAVORABLY THE
DEFENSE OF ALIBI AS A GROUND FOR ACQUITTAL OF THE
DEFENDANT-APPELLANT IN SPITE OF THE WEAKNESS OF THE
PROSECUTION EVIDENCE WHICH IS INSUFFICIENT TO OVERCOME THE
PRESUMPTION OF INNOCENCE IN HER FAVOR.
III.
THE TRIAL COURT ERRED IN NOT ACQUITTING HEREIN DEFENDANTAPPELLANT ON GROUND OF REASONABLE DOUBT.
IV.
THE LOWER COURT ERRED IN FAILING TO HOLD THAT THE
APPREHENDING OFFICERS VIOLATED DEFENDANT-APPELLANT'S
MIRANDA RIGHTS.
After a thorough review of the records, this Court finds that the prosecution was able to
discharge its burden of proving the appellant's guilt beyond reasonable doubt. The
decision of the trial court was supported by the evidence on record.
Regarding the credibility of witnesses, this Court has ruled time and again that this is a
matter best assessed by the trial court judge since he has the opportunity to observe the
witnesses' demeanor and deportment on the stand. 8 Besides, in this case, the
inconsistencies criticized by the appellant were minor ones involving negligible details
which did not negate the truth of the witnesses' testimonies nor detract from their
credibility. 9
Appellant also assigns as error the illegality of her arrest because she was not read her
Miranda rights. (This is in addition to her argument that the 15 bricks of marijuana were

inadmissible since the warrantless search was invalid, not having been made pursuant
to a lawful arrest.) This contention is without merit since this Court has repeatedly ruled
that, by entering a plea upon arraignment and by actively participating in the trial, an
accused is deemed to have waived any objection to his arrest and warrantless
search. 10 Any objection to the arrest or acquisition of jurisdiction over the person of the
accused must be made before he enters his plea, otherwise the objection is deemed
waived. 11 Here, in submitting herself to the jurisdiction of the trial court when she
entered a plea of not guilty and participated in the trial, the appellant waived any
irregularity that may have attended her arrest. 12
Assuming, however, that there was no such waiver, pursuant to People
vs. Barros,13 reiterated in People vs. Aruta, 14 the waiver of the non-admissibility of the
"fruits" of an invalid warrantless arrest and warrantless search and seizure is notto be
casually presumed for the constitutional guarantee against unreasonable searches and
seizures to retain vitality. The Court finds that the arrest was lawful as appellant was
actually committing a crime when she was arrested transporting marijuana, an act
prohibited by law. Since a lawful arrest was made, the resulting warrantless search on
appellant was also valid as the legitimate warrantless arrest authorized the arresting
police officers to validly search and seize from the offender (1) any dangerous weapons
and (2) the things which may be used as proof of the commission of the offense. 15
In the present case, the warrantless arrest was lawful because it fell under Rule 113,
Section 5(a) of the Revised Rules of Criminal Procedure. This section provides that a
peace officer may arrest a person even without a warrant when, in his presence, the
person to be arrested has committed, is actually committing or is attempting to commit
an offense. However, the police officer should be spurred by probable cause in making
the arrest. Although the term eludes exact definition, probable cause signifies a
reasonable ground of suspicion supported by circumstances sufficiently strong in
themselves to warrant a cautious man's belief that the person accused is guilty of the
offense with which he is charged. 16The determination of probable cause must be
resolved according to the facts of each case. In this case, the arresting officers had
probable cause to make the arrest in view of the tip they received from their informant.
This Court has already ruled that tipped information is sufficient probable cause to
effect a warrantless search. 17 Although the apprehending officers received the tip two
weeks prior to the arrest, they could not be faulted for not applying for a search warrant
inasmuch as the exact date of appellant's arrival was not known by the informant.
Apprehending officer PO3 Sagum testified 18 as follows:
Q So what were the information given you by your informer?
A Ang kausap po nila iyong hepe namin[g] si Maj. Rhodel
Sermonia tapos po sinabi lang po sa amin ni
Maj. Sermonia ang sinabi ng informant.
Q So you did not hear the report of the informant?
A Yes, sir.
Q What was the information given by your superior?

94

A He told us that somebody will be delivering marijuana at Sapang

Bayabas and the informer knew the person.
Q Give us the complete report? IHEDAT

Q It was on August 13 when he said that?

A Yes, sir.
Q Who was he talking with then?

A Sinabi po ng hepe namin na sinabi ng informant na merong

babaeng magdedeliver ng marijuana sa Sapang
Bayabas at babalik daw po siya kung kailan
magdedeliver.
Q On the date in question August 13 at around 6:00 o'clock in the
morning you were in your office?
A We were already at Sapang Bayabas, sir.
Q Which is which now?
A Nasa Sapang Bayabas na po, sir.
Q Before going to Sapang Bayabas where did you come from?
A We were in the office, sir.
Q What time where you in the office?

A Iyong Chief po namin tapos kinausap ko rin po siya.

Q What time was that?
A Before 5:00, sir.
Q So they were talking before 5:00 with your Chief?
A Yes, sir.
Q Where were you?
A I was outside, sir.
Q So you were not listening to them?
A No, sir.
Q So you do not know what they have talked about?

A That is where we were sleeping.

Q You were sleeping there?
A Yes, sir, we are stay-in.

A Yes, sir.
Q And then what were the instruction given by your superior?

Q And then what happened?

A He said we will proceed to Sapang Bayabas because there is a

lady going there bringing marijuana.

A Our informant came, sir.

Q Did you ask the identity of the woman?

Q What time?

A Yes, sir.

A 5:00 o'clock, sir.

Q What did he say?

Q What was the purpose of the informant?

A About 50 years of age, 5 feet and with straight long hair?

A Sinabi po niya sa amin na darating na raw po iyong ano.

Q How about the name, was the name given to you?

Q I thought that your superior already informed you that the

suspect or the accused will be arriving at 6:00 o'clock the
first time?

A No, sir, he just said she came from Kalinga.

A Sabi po sa amin noong magpunta iyong informer sa office

namin August 13 darating daw po iyong babae.

Q Aside from that, was the quantity of the drugs given to you that
was to be brought?
A No, sir.

95

Q So you just learned that the woman will be arriving at Sapang

Bayabas at 6:00 o'clock?
A I do not know the time she is arriving.
Q He did not tell you?
A He does not know, sir.
Q The informant did not tell you?
A Yes, sir, he just said she will be coming in Sapang Bayabas.
Q You did not ask for the time?
A He does not know, sir.
Q What about the particular place where the woman will deliver
the drugs?
A Hindi niya po alam basta doon sa entrance daw po ng Sapang
Bayabas doon na po kami mag-istambay. (Emphasis and
Italics supplied).
Although there was testimony by PO3 Galvez that the informant told them the exact
date of arrival, the trial court gave more weight to the testimony of PO3 Sagum that
stated otherwise, as evidenced by his finding that the informant arrived at the police
station at 5:00 A.M. on August 13, 1999 and informed them that the appellant was
arriving at 6:00 A.M. 19 The judgment call of the trial court on which of these two
conflicting testimonies to believe should prevail because it involved the assessment of
the credibility of witnesses. 20 Thus, without proof that some facts or circumstances of
weight or substance having a bearing on the result of the case have been overlooked,
misunderstood or misapplied, this Court will not overturn such finding as the judge was in
a better position to observe the demeanor of the two witnesses. 21
In those cases where this Court invalidated a warrantless search on the ground that the
officers could have applied for a search warrant, the concerned officers received the
tip either days prior to the arrival or in the afternoon of a working day. In People
vs. Aminnudin, 22 this Court found that the officers received the tip two days prior to the
actual date of arrival of accused Aminnudin. In People vs.Encinadak, 23 the police
officers were tipped off at 4:00 P.M. on May 20, 1992 that accused Encinada would
arrive at 7:00 A.M. the next day. Thus, the officers had time to obtain search warrants
inasmuch as Administrative Circulars 13 and 19 of the Supreme Court allowed the
application for search warrants even after office hours. In People vs. Aruta, 24 the police
officers received the information on December 13, 1988 that accused Aruta would
arrive on a Victory Liner Bus at 6:30 P.M. on December 14, 1999, giving them a day to
obtain a warrant. DHAcET

In the present case, the informant arrived at the police station at 5:00 A.M. on August
13, 1999 and informed the officers that the appellant would be arriving at 6:00 A.M. (just
an hour later) that day. The circumstances clearly called for an immediate response
from the officers. In People vs. Valdez, 25 this Court upheld the validity of the warrantless
arrest and corresponding search of accused Valdez as the officer made the arrest on
the strength of a similar on-the-spot tip. In the case at bar, though all other pertinent
details were known by the officers except the date, they could not have applied for a
search warrant since the validity of a warrant was only for 10 days. 26 Considering that
the officers did not know when the appellant was going to arrive, prudence made them
act the way they did.
The appellant also faults the trial court for failing to give weight to her defense of alibi.
Appellant's alibi could not prevail over the overwhelming evidence presented by the
prosecution. Alibi as a defense is inherently weak 27 and for it to serve as basis for an
acquittal, the accused must establish by clear and convincing evidence (a) his
presence at another place at the time of the perpetration of the offense and (b) the
physical impossibility to be at the scene of the crime. 28 The appellant failed to meet
these two requirements. Jaime Alarcon's house where appellant claimed to be sleeping
at the time of her arrest, was only 10 meters from the tricycle terminal where she was
arrested by the officers. 29 Thus, the trial court was correct in ruling that the alibi of
appellant was not enough to acquit her of the charges.
With the effectivity of RA 7659, Section 4 of RA 6425, provides the penalty ofreclusion
perpetua to death and a fine ranging from P500,000 to P10,000,000 if the marijuana
involved weighs 750 grams or more. Since the penalty is composed of two indivisible
penalties, the rules for applying the penalties in Article 63 of theRevised Penal Code are
applicable, pursuant to the ruling in People vs. Simon 30wherein the Court recognized
the suppletory application of the rules on penalties in the Revised Penal Code and the
Indeterminate Sentence Law to the Dangerous Drugs Act after its amendment by RA
7659. Thus, as the appellant was found to be transporting 14.75 kilograms of marijuana,
the trial court was correct in imposing the lesser penalty of reclusion perpetua since
there was no aggravating or mitigating circumstance, and in not applying the
Indeterminate Sentence Law which is not applicable when indivisible penalties are
imposed.
WHEREFORE, the judgment of the Regional Trial Court, Branch 59, of Angeles City,
finding the appellant guilty of transporting a prohibited drug and sentencing her
to reclusion perpetua and to pay the fine of P500,000, is hereby AFFIRMED.
SO ORDERED.
Vitug, Sandoval-Gutierrez and Carpio Morales, JJ ., concur.
||| (People v. Ayangao y Batong-Og, G.R. No. 142356, [April 14, 2004], 471 PHIL 379394)

19-People v. Laguio, Jr., G.R. No. 128587, 16 March 2007

96

FIRST DIVISION
[G.R. No. 128587. March 16, 2007.]
PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. PERFECTO A.S.
LAGUIO, JR., in his capacity as Presiding Judge, Branch 18, RTC,
Manila, and LAWRENCE WANG Y CHEN, respondents.
DECISION
GARCIA, J p:
On pure questions of law, petitioner People of the Philippines has directly come to this
Court via this petition for review on certiorari to nullify and set aside the
Resolution 1 dated 13 March 1997 of the Regional Trial Court of Manila, Branch 18, in
Criminal Case Nos. 96-149990 to 96-149992, entitled People of the Philippines v.
Lawrence Wang y Chen, granting private respondent Lawrence C. Wang'sDemurrer to
Evidence and acquitting him of the three (3) charges filed against him, namely:
(1) Criminal Case No. 96-149990 for Violation of Section 16, Article III in relation to Section
2 (e) (2), Article I of Republic Act (R.A.) No. 6425 (Dangerous Drugs Act); (2) Criminal
Case No. 96-149991 for Violation of Presidential DecreeNo. 1866 (Illegal Possession of
Firearms); and (3) Criminal Case No. 96-149992 for Violation of Comelec Resolution No.
2828 in relation to R.A. No. 7166 (COMELEC Gun Ban).

The three (3) separate Informations filed against Lawrence C. Wang in the court of origin
respectively read:
Criminal Case No. 96-149990 (Violation of Dangerous Drugs Act):
That on or about the 17th day of May 1996, in the City of Manila,
Philippines, the said accused did then and there willfully, unlawfully
and knowingly have in his possession and under his custody and
control a bulk of white and yellowish crystalline substance known
as SHABU contained in thirty-two (32) transparent plastic bags
weighing approximately 29.2941 kilograms, containing
methamphetamine hydrochloride, a regulated drug, without the
corresponding license or prescription therefor.
Contrary to law. 2
Criminal Case No. 96-149991 (Illegal Possession of Firearms):
That on or about the 17th day of May 1996, in the City of Manila,
Philippines, the said accused did then and there willfully, unlawfully
and knowingly have in his possession and under his custody and

control one (1) DAEWOO Cal. 9mm, automatic pistol with one
loaded magazine and one AMT Cal. .380 9mm automatic backup
pistol with magazine loaded with ammunitions without first having
secured the necessary license or permit therefor from the proper
authorities.
Contrary to law. 3
Criminal Case No. 96-149992 (Violation of Comelec Gun Ban):
That on or about the 17th day of May 1996, in the City of Manila,
Philippines, the said accused did then and there willfully, unlawfully
and knowingly have in his possession and under his custody and
control one (1) DAEWOO Cal. 9mm automatic pistol with one
loaded magazine and one (1) AMT Cal. 380 9mm automatic
backup pistol with magazine loaded with ammunitions, carrying
the same along Maria Orosa St., Ermita, Manila, which is a public
place, on the date which is covered by an election period, without
first securing the written permission or authority from the
Commission on Elections, as provided by the COMELEC Resolution
2828 in relation to Republic Act 7166.
Contrary to law. 4
During his arraignment, accused Wang refused to enter a plea to all the Informations
and instead interposed a continuing objection to the admissibility of the evidence
obtained by the police operatives. Thus, the trial court ordered that a plea of "Not
Guilty" be entered for him. 5 Thereafter, joint trial of the three (3) consolidated cases
followed.
The pertinent facts are as follows:
On 16 May 1996, at about 7:00 p.m., police operatives of the Public Assistance and
Reaction Against Crime of the Department of Interior and Local Government, namely,
Captain Margallo, Police Inspector Cielito Coronel and SPO3 Reynaldo Cristobal,
arrested SPO2 Vergel de Dios, Rogelio Anoble and a certain Arellano, for unlawful
possession of methamphetamine hydrochloride, a regulated drug popularly known
as shabu. In the course of the investigation of the three arrested persons, Redentor Teck,
alias Frank, and Joseph Junio were identified as the source of the drug. An entrapment
operation was then set after the three were prevailed upon to call their source and
pretend to order another supply of shabu.
At around 11:00 p.m. that same date, Redentor Teck and Joseph Junio were arrested
while they were about to hand over another bag of shabu to SPO2 De Dios and
company. Questioned, Redentor Teck and Joseph Junio informed the police operatives
that they were working as talent manager and gymnast instructor, respectively,
of Glamour Modeling Agency owned by Lawrence Wang. Redentor Teck and Joseph
Junio did not disclose their source of shabu but admitted that they were working for
Wang. 6 They also disclosed that they knew of a scheduled delivery of shabu early the

97

following morning of 17 May 1996, and that their employer (Wang) could be found at
the Maria Orosa Apartment in Malate, Manila. The police operatives decided to look for
Wang to shed light on the illegal drug activities of Redentor Teck and Joseph Junio.
Police Inspector Cielito Coronel and his men then proceeded to Maria Orosa
Apartment and placed the same under surveillance. TCacI
Prosecution witness Police Inspector Cielito Coronel testified that at about 2:10 a.m. of
17 May 1996, Wang, who was described to the operatives by Teck, came out of the
apartment and walked towards a parked BMW car. On nearing the car, he (witness)
together with Captain Margallo and two other police officers approached Wang,
introduced themselves to him as police officers, asked his name and, upon hearing that
he was Lawrence Wang, immediately frisked him and asked him to open the back
compartment of the BMW car. 7 When frisked, there was found inside the front right
pocket of Wang and confiscated from him an unlicensed AMT Cal. 380 9mm automatic
Back-up Pistol loaded with ammunitions. At the same time, the other members of the
operatives searched the BMW car and found inside it were the following items: (a) 32
transparent plastic bags containing white crystalline substance with a total weight of
29.2941 kilograms, which substance was later analyzed as positive for
methamphetamine hydrochloride, a regulated drug locally known as shabu; (b) cash in
the amount of P650,000.00; (c) one electronic and one mechanical scales; and (d) an
unlicensed Daewoo 9mm Pistol with magazine. Then and there, Wang resisted the
warrantless arrest and search. 8
On 6 December 1996, the prosecution rested its case and upon motion, accused Wang
was granted 25 days from said date within which to file his intended Demurrer to
Evidence. 9 On 19 December 1996, the prosecution filed aManifestation 10 to the effect
that it had rested its case only in so far as the charge for Violation of the Dangerous
Drugs Act in Criminal Case No. 96-149990 is concerned, and not as regards the two
cases for Illegal Possession of Firearms (Crim. Case No. 96-149991) and Violation of the
Comelec Gun Ban (Crim. Case No. 96-149992). Accordingly, trial continued.
On 9 January 1997, Wang filed his undated Demurrer to Evidence, 11 praying for his
acquittal and the dismissal of the three (3) cases against him for lack of a valid arrest
and search warrants and the inadmissibility of the prosecution's evidence against him.
Considering that the prosecution has not yet filed its Opposition to the demurrer, Wang
filed an Amplification 12 to his Demurrer of Evidence on 20 January 1997. On 12
February 1997, the prosecution filed its Opposition 13 alleging that the warrantless
search was legal as an incident to the lawful arrest and that it has proven its case, so it is
now time for the defense to present its evidence.
On 13 March 1997, the respondent judge, the Hon. Perfecto A.S. Laguio, Jr., issued the
herein assailed Resolution 14 granting Wang's Demurrer to Evidence and acquitting him
of all charges for lack of evidence, thus:
WHEREFORE, the accused's undated Demurrer to Evidence is
hereby granted; the accused is acquitted of the charges against
him for the crimes of Violation of Section 16, Article III of the
Dangerous Drugs Act, Illegal Possession of Firearms, and Violation
of Comelec Gun Ban, for lack of evidence; the 32 bags of shabu
with a total weight of 29.2941 kilograms and the two unlicensed

pistols, one AMT Cal. .380 9mm and one Daewoo Cal. 9mm. are
ordered confiscated in favor of the government and the branch
clerk is directed to turn over the 32 bags of shabu to the
Dangerous Drugs Board in Intramuros, Manila, and the two firearms
to the Firearms and Explosive Units, PNP, Camp Crame, Quezon
City, for proper disposition, and the officer-in-charge of PARAC,
Department of Interior and Local Government, is ordered to return
the confiscated amount of P650,000.00 to the accused, and the
confiscated BMW car to its registered owner, David Lee. No costs.
SO ORDERED.
Hence, this petition 15 for review on certiorari by the People, submitting that the trial
court erred
I
. . . IN HOLDING THAT THE UNDISPUTED FACTS AND CIRCUMSTANCES
DID NOT CONSTITUTE PROBABLE CAUSE WITHIN THE
CONTEMPLATION OF SECTION 2, ARTICLE III OF THE CONSTITUTION,
AND IN HOLDING THAT SUCH FACTS AND CIRCUMSTANCES NEITHER
JUSTIFIED THE WARRANTLESS SEARCH OF ACCUSED'S VEHICLE AND
THE SEIZURE OF THE CONTRABAND THEREIN.
II
. . . IN HOLDING, IN EFFECT, THAT A WARRANTLESS SEARCH IS
CONSTITUTIONALLY ALLOWABLE AND CAN ONLY BE VALID AS AN
INCIDENT TO A LAWFUL ARREST.
III
. . . IN DECLARING THE WARRANTLESS ARREST OF THE ACCUSED AND
THE SEARCH AND SEIZURE OF HIS HANDGUNS UNLAWFUL.
IV
. . . IN NOT DECLARING THE ACCUSED AS HAVING WAIVED, AS A
RESULT OF HIS SUBMISSION AND FAILURE TO PROTEST THE SEARCH
AND HIS ARREST, HIS CONSTITUTIONAL RIGHT AGAINST
UNREASONABLE SEARCH AND SEIZURE AND HIS OBJECTION TO THE
ADMISSION OF THE EVIDENCE SEIZED.
V
. . . IN NOT ADMITTING IN EVIDENCE THE EVIDENCE SEIZED AND
OFFERED BY THE PROSECUTION AND IN NOT DENYING ACCUSED'S
DEMURRER TO EVIDENCE.

98

In its Resolution 16 of 9 July 1997, the Court, without giving due course to the petition,
required the public and private respondents to comment thereon within ten days from
notice. Private respondent Wang filed his comment 17 on 18 August 1997.
On 10 September 1997, the Court required the People to file a reply, 18 which the Office
of the Solicitor General did on 5 December 1997, after several extensions.19
On 20 October 2004, the Court resolved to give due course to the petition and required
the parties to submit their respective memoranda, 20 which they did.

The case presents two main issues: (a) whether the prosecution may appeal the trial
court's resolution granting Wang's demurrer to evidence and acquitting him of all the
charges against him without violating the constitutional proscription against double
jeopardy; and (b) whether there was lawful arrest, search and seizure by the police
operatives in this case despite the absence of a warrant of arrest and/or a search
warrant.
First off, it must be emphasized that the present case is an appeal filed directly with this
Court via a petition for review on certiorari under Rule 45 in relation to Rule 41, Section 2,
paragraph (c) of the Rules of Court raising only pure questions of law, ordinary appeal
by mere filing of a notice of appeal not being allowed as a mode of appeal directly to
this Court. Then, too, it bears stressing that the right to appeal is neither a natural right
nor a part of due process, it being merely a statutory privilege which may be exercised
only in the manner provided for by law (Velasco v. Court of Appeals 21 ). Although
Section 2, Rule 122 of the Rules on Criminal Procedure states that any party may
appeal, the right of the People to appeal is, in the very same provision, expressly made
subject to the prohibition against putting the accused in double jeopardy. It also basic
that appeal in criminal cases throws the whole records of the case wide open for review
by the appellate court, that is why any appeal from a judgment of acquittal necessarily
puts the accused in double jeopardy. In effect, the very same Section 2 of Rule 122 of
the Rules on Criminal Procedure, disallows appeal by the People from judgments of
acquittal.
An order granting an accused's demurrer to evidence is a resolution of the case on the
merits, and it amounts to an acquittal. Generally, any further prosecution of the
accused after an acquittal would violate the constitutional proscription on double
jeopardy. To this general rule, however, the Court has previously made some
exceptions.
The celebrated case of Galman v. Sandiganbayan 22 presents one exception to the
rule on double jeopardy, which is, when the prosecution is denied due process of law:
No court whose Presiding Justice has received "orders or
suggestions" from the very President who by an amendatory
decree (disclosed only at the hearing of oral arguments on

November 8, 1984 on a petition challenging the referral of the

Aquino-Galman murder cases to the Tanodbayan and
Sandiganbayan instead of to a court martial, as mandatorily
required by the known P.D. 1850 at the time providing for exclusive
jurisdiction of courts martial over criminal offenses committed by
military men) made it possible to refer the cases to the
Sandiganbayan, can be an impartial court, which is the very
essence of due process of law. As the writer then wrote, "jurisdiction
over cases should be determined by law, and not
by preselection of the Executive, which could be much too easily
transformed into a means of predetermining the outcome of
individual cases." This criminal collusion as to the handling and
treatment of the cases by public respondents at the secret
Malacaang conference (and revealed only after fifteen months
by Justice Manuel Herrera) completely disqualified respondent
Sandiganbayan and voided ab initioits verdict. This renders moot
and irrelevant for now the extensive arguments of respondents
accused, particularly Generals Ver and Olivas and those
categorized as accessories, that there has been no evidence or
witness suppressed against them, that the erroneous conclusions of
Olivas as police investigator do not make him an accessory of the
crimes he investigated and the appraisal and evaluation of the
testimonies of the witnesses presented and suppressed. There will
be time and opportunity to present all these arguments and
considerations at the remand and retrial of the cases herein
ordered before a neutral and impartial court.
The Supreme Court cannot permit such a sham trial and verdict
and travesty of justice to stand unrectified. The courts of the land
under its aegis are courts of law and justice and equity. They would
have no reason to exist if they were allowed to be used as mere
tools of injustice, deception and duplicity to subvert and suppress
the truth, instead of repositories of judicial power whose judges are
sworn and committed to render impartial justice to all alike who
seek the enforcement or protection of a right or the prevention or
redress of a wrong, without fear or favor and removed from the
pressures of politics and prejudice. More so, in the case at bar
where the people and the world are entitled to know the truth,
and the integrity of our judicial system is at stake. In life, as an
accused before the military tribunal Ninoy had pleaded in vain
that as a civilian he was entitled to due process of law and trial in
the regular civil courts before an impartial court with an unbiased
prosecutor. In death, Ninoy, as the victim of the "treacherous and
vicious assassination" and the relatives and sovereign people as
the aggrieved parties plead once more for due process of law and
a retrial before an impartial court with an unbiased prosecutor. The
Court is constrained to declare the sham trial a mock trial the
non-trial of the century and that the predetermined judgment of
acquittal was unlawful and void ab initio.

99

1. No double jeopardy. It is settled doctrine that double

jeopardy cannot be invoked against this Court's setting aside of
the trial courts' judgment of dismissal or acquittal where the
prosecution which represents the sovereign people in criminal
cases is denied due process. As the Court stressed in the 1985 case
of People vs. Bocar,
Where the prosecution is deprived of a fair opportunity to
prosecute and prove its case, its right to due process is
thereby violated.
The cardinal precept is that where there is a violation of
basic constitutional rights, courts are ousted of their
jurisdiction. Thus, the violation of the State's right to due
process raises a serious jurisdictional issue (Gumabon vs.
Director of the Bureau of Prisons, L-30026, 37 SCRA 420
[Jan. 30, 1971]) which cannot be glossed over or
disregarded at will. Where the denial of the fundamental
right of due process is apparent, a decision rendered in
disregard of that right is void for lack of jurisdiction
(Aducayen vs. Flores, L-30370 [May 25, 19731, 51 SCRA
78; Shell Co. vs. Enage, L-30111-12, 49 SCRA 416 Feb. 27,
1973]). Any judgment or decision rendered
notwithstanding such violation may be regarded as a
"lawless thing, which can be treated as an outlaw and
slain at sight, or ignored wherever it exhibits its head"
(Aducayen vs. Flores, supra).
Respondent Judge's dismissal order dated July 7, 1967
being null and void for lack of jurisdiction, the same does
not constitute a proper basis for a claim of double
jeopardy (Serino vs. Zosa, supra).
xxx xxx xxx
Legal jeopardy attaches only (a) upon a valid
indictment, (b) before a competent court, (c) after
arraignment, (d) a valid plea having been entered; and
(e) the case was dismissed or otherwise terminated
without the express consent of the accused (People vs.
Ylagan, 58 Phil. 851). The lower court was not competent
as it was ousted of its jurisdiction when it violated the right
of the prosecution to due process.
In effect, the first jeopardy was never terminated, and the
remand of the criminal case for further hearing and/or
trial before the lower courts amounts merely to a
continuation of the first jeopardy, and does not expose
the accused to a second jeopardy.

Another exception is when the trial court commits grave abuse of discretion in
dismissing a criminal case by granting the accused's demurrer to evidence. In point is
the fairly recent case of People v. Uy, 23 which involved the trial court's decision which
granted the two separate demurrers to evidence filed by the two accused therein, both
with leave of court, resulting in their acquittal of their respective charges of murder due
to insufficiency of evidence. In resolving the petition for certiorari filed directly with this
Court, we had the occasion to explain:
The general rule in this jurisdiction is that a judgment of acquittal is
final and unappealable. People v. Court of Appeals explains the
rationale of this rule:
In our jurisdiction, the finality-of-acquittal doctrine as a
safeguard against double jeopardy faithfully adheres to
the principle first enunciated in Kepner v. United States. In
this case, verdicts of acquittal are to be regarded as
absolutely final and irreviewable. The cases of United
States v. Yam Tung Way, People v. Bringas, Gandicela v.
Lutero, People v. Cabarles, People v. Bao, to name a few,
are illustrative cases. The fundamental philosophy behind
the constitutional proscription against double jeopardy
is to afford the defendant, who has been acquitted, final
repose and safeguard him from government oppression
through the abuse of criminal processes. As succinctly
observed in Green v. United States "(t)he underlying idea,
one that is deeply ingrained in at least the AngloAmerican system of jurisprudence, is that the State with all
its resources and power should not be allowed to make
repeated attempts to convict an individual for an alleged
offense, thereby subjecting him to embarrassment,
expense and ordeal and compelling him to live in a
continuing state of anxiety and insecurity, as well as
enhancing the possibility that even though innocent, he
may be found guilty." (Underscoring supplied)

The same rule applies in criminal cases where a demurrer to

evidence is granted. As held in the case of People v.
Sandiganbayan:
The demurrer to evidence in criminal cases, such as the
one at bar, is " filed after the prosecution had rested its
case," and when the same is granted, it calls "for an
appreciation of the evidence adduced by the
prosecution and its sufficiency to warrant conviction
beyond reasonable doubt, resulting in a dismissal of the
case on the merits, tantamount to an acquittal of the
accused." Such dismissal of a criminal case by the grant
of demurrer to evidence may not be appealed, for to do

100

so would be to place the accused in double-jeopardy.

The verdict being one of acquittal, the case ends there.
(Italics in the original)
Like any other rule, however, the above-said rule is not absolute. By
way of exception, a judgment of acquittal in a criminal case may
be assailed in a petition for certiorari under Rule 65 of the Rules of
Court upon a clear showing by the petitioner that the lower court,
in acquitting the accused, committed not merely reversible errors
of judgment but also grave abuse of discretion amounting to lack
or excess of jurisdiction or a denial of due process, thus rendering
the assailed judgment void. (Emphasis supplied.)
In Sanvicente v. People, 24 the Court allowed the review of a decision of the Court of
Appeals (CA) which reversed the accused's acquittal upon demurrer to evidence filed
by the accused with leave of court, the CA ruling that the trial court committed grave
abuse of discretion in preventing the prosecution from establishing the due execution
and authenticity of certain letter marked therein as Exhibit "LL," which supposedly
"positively identified therein petitioner as the perpetrator of the crime charged." The
Court, in a petition for certiorari, sustained the CA's power to review the order granting
the demurrer to evidence, explaining thus:
Under Rule 119, Section 23 of the Revised Rules of Criminal
Procedure, as amended, the trial court may dismiss the action on
the ground of insufficiency of evidence upon a demurrer to
evidence filed by the accused with or without leave of court. In
resolving accused's demurrer to evidence, the court is merely
required to ascertain whether there is competent or sufficient
evidence to sustain the indictment or support a verdict of guilt.
The grant or denial of a demurrer to evidence is left to the sound
discretion of the trial court and its ruling on the matter shall not be
disturbed in the absence of a grave abuse of discretion.
Significantly, once the court grants the demurrer, such order
amounts to an acquittal and any further prosecution of the
accused would violate the constitutional proscription on double
jeopardy. This constitutes an exception to the rule that the dismissal
of a criminal case made with the express consent of the accused
or upon his own motion bars a plea of double jeopardy. The
finality-of-acquittal rule was stressed thus in People v. Velasco:
The fundamental philosophy highlighting the finality of an
acquittal by the trial court cuts deep into the "humanity of
the laws and in jealous watchfulness over the rights of the
citizens, when brought in unequal contest with the State .
. . . Thus Green expressed the concern that "(t)he
underlying idea, one that is deeply ingrained in at least
the Anglo-American system of jurisprudence, is that the
State with all its resources and power should not be
allowed to make repeated attempts to convict an

individual for an alleged offense thereby subjecting him

to embarrassment, expense and ordeal and compelling
him to live in a continuing state of anxiety and insecurity,
as well as enhancing the possibility that even though
innocent, he may be found guilty."
It is axiomatic that on the basis of humanity, fairness and
justice, an acquitted defendant is entitled to the right of
repose as a direct consequence of the finality of his
acquittal. The philosophy underlying this rule establishing
the absolute nature of acquittals is "part of the
paramount importance criminal justice system attaches
to the protection of the innocent against wrongful
conviction." The interest in the finality-of-acquittal rule,
confined exclusively to verdicts of not guilty, is easy to
understand: it is a need for "repose", a desire to know the
exact extent of one's liability. With this right of repose, the
criminal justice system has built in a protection to insure
that the innocent, even those whose innocence rests
upon a jury's leniency, will not be found guilty in a
subsequent proceeding.
Given the far-reaching scope of an accused's right against double
jeopardy, even an appeal based on an alleged misappreciation
of evidence will not lie. The only instance when double jeopardy
will not attach is when the trial court acted with grave abuse of
discretion amounting to lack or excess of jurisdiction, such as
where the prosecution was denied the opportunity to present its
case or where the trial was a sham. However, while certiorari may
be availed of to correct an erroneous acquittal, the petitioner in
such an extraordinary proceeding must clearly demonstrate that
the trial court blatantly abused its authority to a point so grave as to
deprive it of its very power to dispense justice. (Emphasis supplied.)

By this time, it is settled that the appellate court may review dismissal orders of trial
courts granting an accused's demurrer to evidence. This may be done viathe special
civil action of certiorari under Rule 65 based on the ground of grave abuse of discretion,
amounting to lack or excess of jurisdiction. Such dismissal order, being considered void
judgment, does not result in jeopardy. Thus, when the order of dismissal is annulled or set
aside by an appellate court in an original special civil action via certiorari, the right of
the accused against double jeopardy is not violated.
Unfortunately, what petitioner People of the Philippines, through then Secretary of
Justice Teofisto T. Guingona, Jr. and then Solicitor General Silvestre H. Bello, III, filed with
the Court in the present case is an appeal by way of a petition for review
on certiorari under Rule 45 raising a pure question of law, which is different from a
petition for certiorari under Rule 65.

101

In Madrigal Transport Inc. v. Lapanday Holdings Corporation, 25 we have enumerated

the distinction between the two remedies/actions, to wit:
Appeal and Certiorari Distinguished
Between an appeal and a petition for certiorari, there are
substantial distinctions which shall be explained below.
As to the Purpose. Certiorari is a remedy designed for the
correction of errors of jurisdiction, not errors of judgment. In Pure
Foods Corporation v. NLRC, we explained the simple reason for the
rule in this light:
"When a court exercises its jurisdiction, an error committed
while so engaged does not deprive it of the jurisdiction
being exercised when the error is committed. If it did,
every error committed by a court would deprive it of its
jurisdiction and every erroneous judgment would be a
void judgment. This cannot be allowed. The
administration of justice would not survive such a rule.
Consequently, an error of judgment that the court may
commit in the exercise of its jurisdiction is not
correct[a]ble through the original civil action of certiorari."
The supervisory jurisdiction of a court over the issuance of a writ
ofcertiorari cannot be exercised for the purpose of reviewing the
intrinsic correctness of a judgment of the lower court on the
basis either of the law or the facts of the case, or of the wisdom or
legal soundness of the decision. Even if the findings of the court are
incorrect, as long as it has jurisdiction over the case, such
correction is normally beyond the province of certiorari. Where the
error is not one of jurisdiction, but of an error of law or fact a
mistake of judgment appeal is the remedy.
As to the Manner of Filing. Over an appeal, the CA exercises its
appellate jurisdiction and power of review. Over a certiorari, the
higher court uses its original jurisdiction in accordance with its
power of control and supervision over the proceedings of lower
courts. An appeal is thus a continuation of the original suit, while a
petition for certiorari is an original and independent action that
was not part of the trial that had resulted in the rendition of the
judgment or order complained of. The parties to an appeal are the
original parties to the action. In contrast, the parties to a petition
for certiorari are the aggrieved party (who thereby becomes the
petitioner) against the lower court or quasi-judicial agency, and
the prevailing parties (the public and the private respondents,
respectively).

As to the Subject Matter. Only judgments or final orders and those

that the Rules of Court so declared are appealable. Since the issue
is jurisdiction, an original action for certiorari may be directed
against an interlocutory order of the lower court prior to an appeal
from the judgment; or where there is no appeal or any plain,
speedy or adequate remedy.
As to the Period of Filing. Ordinary appeals should be filed within
fifteen days from the notice of judgment or final order appealed
from. Where a record on appeal is required, the appellant must file
a notice of appeal and a record on appeal within thirty days from
the said notice of judgment or final order. A petition for review
should be filed and served within fifteen days from the notice of
denial of the decision, or of the petitioner's timely filed motion for
new trial or motion for reconsideration. In an appeal by certiorari,
the petition should be filed also within fifteen days from the notice
of judgment or final order, or of the denial of the petitioner's motion
for new trial or motion for reconsideration.
On the other hand, a petition for certiorari should be filed not later
than sixty days from the notice of judgment, order, or resolution. If a
motion for new trial or motion for reconsideration was timely filed,
the period shall be counted from the denial of the motion.
As to the Need for a Motion for Reconsideration. A motion for
reconsideration is generally required prior to the filing of a petition
forcertiorari, in order to afford the tribunal an opportunity to correct
the alleged errors. Note also that this motion is a plain and
adequate remedy expressly available under the law. Such motion
is not required before appealing a judgment or final order. HAaScT
Also in Madrigal, we stressed that the special civil action of certiorari and appeal are
two different remedies mutually exclusive; they are neither alternative nor successive.
Where appeal is available, certiorari will not prosper. In the dismissal of a criminal case
upon demurrer to evidence, appeal is not available as such an appeal will put the
accused in double jeopardy. Certiorari, however, is allowed.
For being the wrong remedy taken by petitioner People of the Philippines in this case,
this petition is outrightly dismissible. The Court cannot reverse the assailed dismissal order
of the trial court by appeal without violating private respondent's right against double
jeopardy.
Even assuming that the Court may treat an "appeal" as a special civil action ofcertiorari,
which definitely this Court has the power to do, when there is a clear showing of grave
abuse of discretion committed by the lower court, the instant petition will nevertheless
fail on the merits as the succeeding discussion will show.
There are actually two (2) acts involved in this case, namely, the warrantlessarrest and
the warrantless search. There is no question that warrantless search may be conducted

102

as an incident to a valid warrantless arrest. The law requires that there be first a lawful
arrest before a search can be made; the process cannot be reversed. 26 However, if
there are valid reasons to conduct lawful search and seizure which thereafter shows
that the accused is currently committing a crime, the accused may be lawfully
arrested in flagrante delicto 27without need for a warrant of arrest.
Finding that the warrantless arrest preceded the warrantless search in the case at bar,
the trial court granted private respondent's demurrer to evidence and acquitted him of
all the three charges for lack of evidence, because the unlawful arrest resulted in the
inadmissibility of the evidence gathered from an invalid warrantless search. The trial
court's ratiocination is quoted as follows:
The threshold issue raised by the accused in his Demurrer to
Evidence is whether his warrantless arrest and search were lawful
as argued by the prosecution, or unlawful as asserted by the
defense.
Under Section 5, Rule 113 of the New Rules of Court, a peace
officer may arrest a person without a warrant: (a) when in his
presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense; (b) when an
offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has
committed it, and (c) when the person to be arrested is a prisoner
who has escaped from a penal establishment or place where he is
serving final judgment or temporarily confined while being
transferred from one confinement to another. None of these
circumstances were present when the accused was arrested. The
accused was merely walking from the Maria Orosa Apartment and
was about to enter the parked BMW car when the police officers
arrested and frisked him and searched his car. The accused was
not committing any visible offense at the time of his arrest. Neither
was there an indication that he was about to commit a crime or
that he had just committed an offense. The unlicensed AMT
Cal.380 9mm Automatic Back-up Pistol that the accused had in his
possession was concealed inside the right front pocket of his pants.
And the handgun was bantam and slim in size that it would not
give an outward indication of a concealed gun if placed inside
the pant's side pocket as was done by the accused. The arresting
officers had noinformation and knowledge that the accused was
carrying an unlicensed handgun, nor did they see him in possession
thereof immediately prior to his arrest.
Ditto on the 32 bags of shabu and the other unlicensed Daewoo
Cal. 9mm Pistol with magazine that were found and seized from
the car. The contraband items in the car were not in plain view.
The 32 bags of shabu were in the trunk compartment, and the
Daewoo handgun was underneath the driver's seat of the car. The
police officers had noinformation, or knowledge that the banned
articles were inside the car, or that the accused had placed them

there. The police officers searched the car on mere suspicion that
there was shabu therein.
On this matter, pertinent portions of the testimonies of Police
Inspector Cielito Coronel and SPO3 Reynaldo are hereunder
quoted:
POLICE INSPECTOR CIELITO CORONEL'S TESTIMONY
"PROSECUTOR TO WITNESS: Direct-Examination
Q. Mr. Witness, what was your role or participation in this case?
A. I am one of those responsible for the arrest of the accused.
xxx xxx xxx
Q. Where did you make that arrest, Mr. Witness?
A. The apprehension was made in front of an apartment along
Maria Orosa Street, Ermita, Manila.
Q. What date was that when you arrested the accused?
A. It was on May 17, 1996, at about 2:10 a.m.
xxx xxx xxx
Q. What was the reason why you together with other policemen
effected the arrest of the accused?
A. We arrested him because of the information relayed to us by
one of those whom we have previously apprehended in
connection with the delivery of shabu somewhere also in
Ermita, Manila.
xxx xxx xxx
Q. When you established that he was somewhere at Maria Orosa,
what did you do?
A. We waited for him.
xxx xxx xxx
Q. You yourself, Mr. Witness, where did you position yourself during
that time?
A. I was inside a vehicle waiting for the accused to appear.

103

Q. What about your other companions where were they?

ATTY. LOZANO TO WITNESS: CROSS

A. They were position in strategic places within the area.

Q. You arrested Joseph Junio and Redentor Teck for alleged

transporting of shabu on May 16, 1996, at 11:00 p.m., is it
not?

Q. What happened when you and your companions were

positioned in that place?

A. Yes, Sir.
A. That was when the accused arrived.
Q. You asked Redentor Teck where he is employed, is it not?
Q. How many of your approached him.
A. Yes, Sir.
A. Inspector Margallo, myself and two other operatives.
Q. What happened when you approached the accused, Mr.
Witness?
A. We introduced ourselves as police officers and we frisked him
and we asked him to open the back compartment of his
car.
Q. You said you frisked him, what was the result of that?
A. He was found in possession of one back-up pistol with one
loaded magazine and likewise when the compartment
was opened several plastic bags containing white
crystalline substance suspected to be shabu (were
found).
Q. What did you do when you found out Mr. Witness?
A. When the car was further search we later found another firearm,
a Daewoo Pistol at the place under the seat of the driver.
Q. Then what happened?
A. He was brought to our headquarters at Mandaluyong for further
investigation.
Q. What about the suspected shabu that you recovered, what did
you do with that?
A. The suspected shabu that we recovered were forwarded to the
NBI for laboratory examination.
Q. Did you come to know the results?
A. It was found positive for methamphetamine hydrochloride. (TSN,
pp. 3-8, November 15, 1996).

xxx xxx xxx

Q. Redentor Teck told you that he is a talent manager at the
Glenmore Modeling Agency, is it not?
A. Yes, Sir.
Q. The Glenmore Modeling Agency is owned by Lawrence Wang,
is it not?
A. I supposed, Sir.
Q. And that is why immediately after Redentor Teck told you that
he is an employee of the Glenmore Modeling Agency
owned by Lawrence Wang, naturally, you and your
companions look for Lawrence Wang to shed light on the
transporting of shabu by Redentor Teck and Joseph
Junio, is it not?
A. Yes, Sir.
Q. Thereafter, you spotted a person previously described by
Redentor Teck as Lawrence Wang, is it not?
A. Yes, Sir.
Q. While you were arresting Lawrence Wang, your companions at
the same time searched the BMW car described in your
affidavit of arrest, is it not?
A. Yes, Sir.
xxx xxx xxx
Q. Lawrence Wang was not inside the BMW car while the same
was searched, is it not?

104

A. He was outside, Sir.

COURT: The same date?

Q. The driver of the car was inside the car when the arrest and
search were made, is it not?

A. May 16, about 11:00 p.m. They were arrested and when they
were investigated, Teck mentioned the name of
Lawrence Wang as his employer. cCHITA

A. He was likewise outside, Sir.

Q. Lawrence Wang did resist arrest and search is it not?
COURT: Why were these people, arrested?
A. Yes, Sir.
A. For violation of R.A. 6425.
Q. When you effected the arrest, there was no warrant of arrest, is
it not?
A. Yes, Sir.
Q. When the search was made on the BMW car, there
was no search warrant, is it not?

COURT: How were they arrested?

A. They were arrested while in the act of transporting shabu or
handling shabu to another previously arrested person. It
was a series of arrest.
COURT: So, this involved a series of operation?

A. Yes, none, Sir. (TSN, pp. 3-12, November 15, 1996)

SPO3 REYNALDO CRISTOBAL'S TESTIMONY
PROSECUTOR TO WITNESS: DIRECT EXAMINATION

A. Yes, Your Honor. About 11:00 p.m. of May 16, we arrested three
(3) persons, SPO2 Vergel de Dios, a certain Arellano and a
certain Rogelio Noble. When they were arrested they
divulged the name of the source.

Q. What is you role or participation in this case?

COURT: They were arrested for what, for possession?
A. I was one of the arresting officers and investigator, Sir.
xxx xxx xxx
Q. What kind of specific offense did the accused allegedly do so
that you arrested him, Mr. Witness?
A. He was arrested on the basis of the recovered drugs in his
possession placed inside his car.
xxx xxx xxx
Q. Mr. witness, you said that you recovered drug from the car of
the accused, please tell us the antecedent
circumstances which led you to recover or confiscate
these items?

A. Yes, Your Honor. For unlawful possession of shabu. Then they

divulged to us the name of the person from whom they
get shabu.
COURT: Whose name did they mention:
A. One Alias Frank, who turned out to be Redentor Teck and
Joseph Junio. We let them call Redentor Teck and Joseph
Junio thru the cellphone and pretend and to order
another supply of shabu.
COURT: So there was an entrapment?
A. Yes, Your Honor.
COURT: So, these two (2) were arrested?

A. Earlier in the evening about 11:00 p.m. of May 16, we arrested

one Redentor Teck and Joseph Junio.
COURT: Where did you arrest these people?
A They were arrested in Metro Manila also.

A. While they were about to hand over another bag of shabu to

Noble and company.
COURT: And these two reveals (revealed) some information to you
as to the source of the shabu?

105

A. Yes, Your Honor.

COURT: And this shabu that you saw inside the compartment of the
car, what did you do with that?

COURT: What was the information?

A. Teck told us that he is an employee of Lawrence Wang.
COURT: What did you do when you were told about that?
A. They also told us that there was an ongoing delivery of shabu on
that morning.

A. Well, he was first arrested by Captain Margallo and Lt. Coronel

while I was the one who inspected and opened the
compartment of the car and saw the shabu. (TSN, pp. 1524, December 16, 1996).
CLARIFICATORY QUESTIONING OF SPO3 CRISTOBAL BY THE COURT

A. Of that date early morning of May 17, 1996.

COURT: From your testimony and that of Police Inspector Cielito

Coronel, this Court has gathered that prior to the arrest of
the accused there were three (3) men that your team
arrested. One of whom is a police officer.

COURT: At what place?

A: Yes, Sir.

COURT: When?

A. We asked them where we could find Lawrence Wang and Teck

lead us to Maria Orosa Apartment where we conducted
a stake out which lasted up to 2:00 a.m.
xxx xxx xxx
COURT: What happened during the stake out?
A. When the person of the accused was identified to us, we saw
him opening his car together with his driver.
COURT: So, he was about to leave when you saw him?
A. Probably, Sir.

xxx xxx xxx

COURT: And on the occasion of the arrest of these three men
shabu were confiscated from them?
A: Yes, Sir.
Q: And in the course of the investigation of these three men, you
were able to discover that Redentor Teck and Joseph
Junio were the source of the regulated drug that were
confiscated from the three men that you have arrested?
A: Yes, Sir.
Q: Now, thru entrapment base[d] on your testimony you were able
to apprehend also these two men, Redentor Teck and
Joseph Junio?

COURT: What did you do?

A. We saw him opened his car and we have a suspicion that there
was a shabu inside the compartment of the car.

A: Yes, Sir.
xxx xxx xxx

xxx xxx xxx

COURT: All right, when you saw the accused opened his car, what
did you do?

Q: These two men, Redentor Teck and Joseph Junio they were also
investigated by your team?

A. We approached him.

A: Yes, Sir.

COURT: What happened when you approached him?

Q: You were present while they were investigated?

A. We suspected the shabu inside the compartment of his car.

A: I was the one whom investigated them.

xxx xxx xxx

106

Q: Did you ask Redentor and Joseph the source of shabu that you
confiscated from them at the time of the (their) arrest?
A: Yes, Sir. They refuse to say the source, however, they told me
that they were working for the accused.

A: None, Sir.
Q: That would invite your suspicion or give indication that he was
intending to do something unlawful or illegal?
A: No, Sir.

Q: You also testified that Redentor informed you that there was
another delivery of shabu scheduled that morning of
(stop) was it May 16 or 17? The other delivery that is
scheduled on?

Q: When you searched the car, did the accused protest or try to
prevent your team from searching his car?
A: No, Sir." (TSN pp. 3-16, Feb. 26, 1997)

A: On the 17th.
xxx xxx xxx
Q: Did he tell you who was to make the delivery?
A: No, Sir.
xxx xxx xxx
Q: At that time when you decided to look for the accused to ask
him to shed light on the matter concerning the arrest of
these two employees in possession of shabu. Did you and
did your team suspect the accused as being involved in
the transaction that lead (led) to the arrest of Redentor
and Joseph?
A: Yes, Sir. We suspected that he was the source of the shabu.
xxx xxx xxx
Q: When you saw the accused walking towards his car, did you
know whether he was carrying a gun?
A: No, Sir. It cannot be seen.
Q: It was concealed?
A: Yes, Sir.
Q: So, the only time that you and your team learned that he was in
possession of the gun is when he was bodily search?
A: Yes, Sir. That is the only time that I came to know about when
Capt. Margallo handed to me the gun.
Q: Other than walking towards his car, the accused was not doing
anything else?

Clearly therefore, the warrantless arrest of the accused and the

search of his person and the car were without probable cause and
could not be licit. The arrest of the accused did not fall under any
of the exception to the requirements of warrantless arrests, (Sec. 5,
Rule 113, Rules of Court) and is therefore, unlawful and derogatory
of his constitutional right of liberty. . . .
The trial court resolved the case on the basis of its findings that the arrest preceded the
search, and finding no basis to rule in favor of a lawful arrest, it ruled that the incidental
search is likewise unlawful. Any and all pieces of evidence acquired as a consequence
thereof are inadmissible in evidence. Thus, the trial court dismissed the case for lack of
evidence.
Contrary to its position at the trial court, the People, however, now posits that "inasmuch
as it has been shown in the present case that the seizure without warrant of the
regulated drugs and unlicensed firearms in the accused's possession had been validly
made upon probable cause and under exigent circumstances, then the warrantless
arrest of the accused must necessarily have to be regarded as having been made on
the occasion of the commission of the crime in flagrante delicto, and therefore
constitutionally and statutorily permissible and lawful." 28 In effect, the People now
contends that the warrantless search preceded the warrantless arrest. Since the case
falls under an exception to the general rule requiring search warrant prior to a valid
search and seizure, the police officers were justified in requiring the private respondent
to open his BMW car's trunk to see if he was carrying illegal drugs.
The conflicting versions as to whether the arrest preceded the search or vice versa, is a
matter of credibility of evidence. It entails appreciation of evidence, which may be
done in an appeal of a criminal case because the entire case is thrown open for
review, but not in the case of a petition for certiorari where the factual findings of the
trial court are binding upon the Court. Since a dismissal order consequent to a demurrer
to evidence is not subject to appeal and reviewable only by certiorari, the factual
finding that the arrest preceded the search is conclusive upon this Court. The only legal
basis for this Court to possibly reverse and set aside the dismissal order of the trial court
upon demurrer to evidence would be if the trial court committed grave abuse of
discretion in excess of jurisdiction when it ruled that there was no legal basis to lawfully
effect a warrantless arrest.

107

The pertinent provisions of Rule 113 of the Rules on Criminal Procedure on warrantless
arrest provide:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a
private person may, without a warrant, arrest a person:
a) When, in his presence, the person to be arrested has committed,
is actually committing, or is attempting to commit an offense;
b) When an offense has just been committed, and he has
probable cause to believe based on personal knowledge of facts
or circumstances that the person to be arrested has committed it;
and
c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or is temporarily confined while his case is pending, or
has escaped while being transferred from one confinement to
another.
Section 5, above, provides three (3) instances when warrantless arrest may be lawfully
effected: (a) arrest of a suspect in flagrante delicto; (b) arrest of a suspect where,
based on personal knowledge of the arresting officer, there is probable cause that said
suspect was the author of a crime which had just been committed; (c) arrest of a
prisoner who has escaped from custody serving final judgment or temporarily confined
while his case is pending.
For a warrantless arrest of an accused caught in flagrante delicto under paragraph (a)
of Section 5 to be valid, two requisites must concur: (1) the person to be arrested must
execute an overt act indicating that he has just committed, is actually committing, or is
attempting to commit a crime; and (2) such overt act is done in the presence or within
the view of the arresting officer. 29
The facts and circumstances surrounding the present case did not manifest any
suspicious behavior on the part of private respondent Lawrence Wang that would
reasonably invite the attention of the police. He was merely walking from theMaria
Orosa Apartment and was about to enter the parked BMW car when the police
operatives arrested him, frisked and searched his person and commanded him to open
the compartment of the car, which was later on found to be owned by his friend, David
Lee. He was not committing any visible offense then. Therefore, there can be no valid
warrantless arrest in flagrante delicto under paragraph (a) of Section 5. It is settled that
"reliable information" alone, absent any overt act indicative of a felonious enterprise in
the presence and within the view of the arresting officers, is not sufficient to constitute
probable cause that would justify an in flagrante delicto arrest. 30

arrested mainly on the information that he was the employer of Redentor Teck and
Joseph Junio who were previously arrested and charged for illegal transport of shabu.
Teck and Junio did not even categorically identify Wang to be their source of
the shabu they were caught with in flagrante delicto. Upon the duo's declaration that
there will be a delivery of shabu on the early morning of the following day, May 17,
which is only a few hours thereafter, and that Wang may be found in Maria Orosa
Apartment along Maria Orosa Street, the arresting officers conducted "surveillance"
operation in front of said apartment, hoping to find a person which will match the
description of one Lawrence Wang, the employer of Teck and Junio. These
circumstances do not sufficiently establish the existence of probable cause based on
personal knowledge as required in paragraph (b) of Section 5.
And doubtless, the warrantless arrest does not fall under paragraph (c) of Section 5.
The inevitable conclusion, as correctly made by the trial court, is that the warrantless
arrest was illegal. Ipso jure, the warrantless search incidental to the illegal arrest is
likewise unlawful.
In People v. Aminnudin, 31 the Court declared as inadmissible in evidence the
marijuana found in appellant's possession during a search without a warrant, because it
had been illegally seized, in disregard of the Bill of Rights:
In the case at bar, the accused-appellant was not, at the moment
of his arrest, committing a crime nor was it shown that he was
about to do so or that he had just done so. What he was doing was
descending the gangplank of the M/V Wilcon 9 and there
was no outward indication that called for his arrest. To all
appearances, he was like any of the other passengers innocently
disembarking from the vessel. It was only when the informer
pointed to him as the carrier of the marijuana that he suddenly
became a suspect and so subject to apprehension. It was the
fugitive finger that triggered his arrest. The identification of the
informer was the probable cause as determined by the officer
(and not a judge) that authorized them to pounce upon
Aminnudin and immediately arrest him.
The People's contention that Wang waived his right against unreasonable search and
seizure has no factual basis. While we agree in principle that consent will validate an
otherwise illegal search, however, based on the evidence on record, Wang resisted his
arrest and the search on his person and belongings. 32 The implied acquiescence to
the search, if there was any, could not have been more than mere passive conformity
given under intimidating or coercive circumstances and is thus considered no consent
at all within the purview of the constitutional guarantee. 33 Moreover, the continuing
objection to the validity of the warrantless arrest made of record during the arraignment
bolsters Wang's claim that he resisted the warrantless arrest and search.

Neither may the warrantless arrest be justified under paragraph (b) of Section 5. What is
clearly established from the testimonies of the arresting officers is that Wang was

108

We cannot close this ponencia without a word of caution: those who are supposed to
enforce the law are not justified in disregarding the rights of the individual in the name
of order. Order is too high a price for the loss of liberty. As Justice Holmes once said, "I
think it is less evil that some criminals should escape than that the government should
play an ignoble part." It is simply not allowed in free society to violate a law to enforce
another, especially if the law violated is the Constitution itself. 34
WHEREFORE, the instant petition is DENIED. HScCEa
SO ORDERED.

of force, violence and intimidation, did then and there wilfully,

unlawfully and feloniously have sexual intercourse with one EDITHA
TALAN, a minor, 10 years of age, against her will and consent, and
thereafter, with intent to kill, cover the nose and mouth of the said
minor resulting to her death and then bury her in the field, to the
damage and prejudice of the heirs of said EDITHA TALAN. 3
During the arraignment on 1 September 1997, GALLARDE, with the assistance of counsel,
entered a plea of not guilty. 4 Trial of the case immediately ensued as the defense
waived the holding of the pre-trial conference. cdasia

Puno, C.J., Sandoval-Gutierrez, Corona and Azcuna, JJ., concur.

||| (People v. Laguio, Jr., G.R. No. 128587, [March 16, 2007], 547 PHIL 296-331)

20- People v. Gallarde, G.R. No. 133023, 17 February 2000

FIRST DIVISION
[G.R. No. 133025. February 17, 2000.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RADEL
GALLARDE, accused-appellant.
The Solicitor General for plaintiff-appellee.
Sansano-Suyat Law Office for accused-appellant.
DECISION
DAVIDE, JR., C.J p:
This is an appeal from the judgment of the Regional Trial Court of Tayug, Pangasinan,
Branch 51, finding accused-appellant Radel Gallarde 1 (hereafter GALLARDE) guilty
beyond reasonable doubt of the crime of murder in Criminal Case No. T-1978, and
sentencing him to suffer the penalty of reclusion perpetuaand to pay the heirs of Editha
Talan (hereafter EDITHA) the amount of P70,000 as actual damages. 2
On 24 June 1997, GALLARDE was charged with the special complex crime of rape with
homicide in an information whose accusatory portion reads as follows: cdtai
That on or about the 6th day of May 1997, in the evening, amidst
the field located at Brgy. Trenchera, [M]unicipality of Tayug,
[P]rovince of Pangasinan, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, and by means

The witnesses presented by the prosecution were Mario Fernandez, Jaime Cabinta, Rosy
Clemente, Felicisimo Mendoza, Alfredo Cortez, Renato Fernandez, SPO4 Oscar B. Lopez,
and Dr. Perfecto Tebangin. The relevant and material facts established by their
testimonies are faithfully summarized in the Appellee's Brief as follows:
In the evening of May 26 1997, at the house of spouses Eduardo
and Elena Talan in Brgy. Trenchera, Tayug, Pangasinan, their
neighbors converged. Among them were appellant Radel
Gallarde, Francisco, Renato, Edwin, all surnamed Fernandez,
Romel Hernandez, Jaime Cabinta, Rosy Clemente, Jon Talen, Noel
Arellaga and Ramil Bargon. Idling by was Editha, 10 year old
daughter of spouses Talan. A fluorescent lamp illuminated them as
they partook beer (TSN dated October 13, 1997, pp. 3-4).
After a while, Roger stood up and invited Jaime and appellant to
dine in the kitchen. As they partook of the meal, appellant
suddenly left. Jaime, too, stepped out of the kitchen to urinate.
Outside the house, he chanced upon appellant and Editha talking
to each other. Jaime whistled at appellant but instead of minding
him, the latter sprinted towards the road leading to his house
(Id., pp. 4-6). dctai
Thereafter, Editha entered the kitchen and took hold of a kerosene
lamp. Jaime followed her and asked where she was going. Editha
answered that she would look for appellant. Soon Editha left
enroute to where appellant fled (Id., pp. 7-8).
By 10:00 o'clock that evening, the drinking buddies had dispersed
but Jaime, Francisco, Edwin and Rose regrouped at Renato's place
where they talked and relaxed. Moments later, Roger arrived and
informed them that Editha was missing. Roger asked the group to
help look for her (Id., p. 10).
Elena Talan informed his uncle, Barangay Ex-kagawad Mario
Fernandez, about her daughter's disappearance. The latter,
together with his son Edwin, wife Virginia and nephew Freddie

109

Cortez wasted no time in joining their neighbors search the houses,

dikes and fields to look for the missing child. The searchers used a
lighted rubber tire (TSN dated Sept. 24, 1997, pp. 8-10 and 24).
When Jaime mentioned that appellant was the last person he saw
talking to Editha, the searchers went back to the house of
appellant. About 7 meters away from appellant's house, one of the
searchers, Alfredo Cortez, found Editha's left foot slipper (TSN dated
October 22, 1997, pp. 4-6). Suddenly, Edwin Fernandez
announced: "Tata, Radel is here!" pointing to the toilet about 6
meters away from appellant's house. The searchers found
appellant squatting with his short pants. His hands and knees were
covered with soil. When confronted by ex-kagawad Hernandez
why he was there, appellant answered he was relieving himself
(Id., pp. 11-16). cda
Asked where Editha was, appellant replied: "I do not know, I did
not do anything to her." When told "according to Jimmy, you
were with Editha." appellant responded "I let her go and brought
her back to the dike and let her go home." To the next question,
"where did you come from since a while ago you were not yet in
this toilet?" appellant answered "I was with Kiko, I was asleep in their
house. One of the searchers Mario Bado, got angry and countered
that appellant's statement was impossible because Kiko was with
him drinking (Id., pp. 16-20).
After the confrontation at the toilet, Ex-kagawad Fernandez
brought appellant to Brgy. Captain Felicisimo Mendoza, informing
the latter that appellant was the last person seen talking with the
missing child. Fernandez then rejoined the searchers (Id., pp. 2122). Cdpr
Back in the field, Virginia Fernandez tripped on a wet ground. As
she reached for her slipper, she saw Editha's right foot slipper (the
other one was earlier found near the house of appellant) (Id., pp.
23-24).
Around 3 meters farther from Editha's right foot slipper; another
slipper was found. It was old, 8 to 9 inches in length and appellant
was seen wearing it in the morning of that day (TSN dated Sept. 25,
1997, p. 25).
The searchers, thereafter, noticed disheveled grasses. Along the
way, they saw a wide hole among the disheveled grass. Exkagawad Fernandez accidentally dropped the lighted rubber tire
and as his nephew Freddie picked it up, the latter exclaimed:
"Uncle, look at this loose soil!" Ex-kagawad Fernandez forthwith
scratched some earth aside and then Editha's hand pitted out. The
Fernandez screamed in terror (Id., pp. 5-6).

Meantime, Barangay Captain Mendoza heard shouts saying: "She

is here, she is now here already dead!" Mindful of appellant's
safety, Brgy. Captain Mendoza decided to bring appellant to the
municipal building. On their way though, they met policemen on
board a vehicle. He flagged them down and turned over the
person of appellant, saying: "Here is the suspect in the
disappearance of the little girl. Since you are already here, I am
giving him to you" (TSN dated Oct. 21, 1997, pp. 4-5). cdrep
The policemen together with appellant proceeded to where the
people found Editha. One of the policemen shoved more soil
aside. The lifeless Editha was completely naked when she was
recovered. (Id., pp. 9-10).
The cause of Editha's death as revealed in the post-mortem
examination showed "suffocation of the lungs as a result from
powerful covering of the nose and mouth, associated with
laceration of the vagina and raptured hymen (Exh. "T", TSN dated
Oct. 23, 1997, pp. 22-23)." 5
On the other hand, GALLARDE was the lone witness for the defense. He interposed a
denial and the alibi that he was at home with his mother and brothers at the time the
crime occurred. He declared that he is 18 years old, single, a former construction
worker. He knew EDITHA, a neighbor whom he considered as a sister because she used
to come to his house. They never had a quarrel or misunderstanding. He neither raped
nor killed Editha. 6
On cross-examination by the prosecutor and to questions propounded by the court,
GALLARDE admitted that he saw Editha on the night of 6 May 1997 in her parent's
house, particularly in the kitchen. He was there because he joined a group drinking Colt
45 beer, as he was called by Rudio Fernandez. He drank and had dinner in the kitchen.
After dinner he returned to the drinking place and eventually went home because he
was then a little drunk. He knows Kgd. Mario Fernandez, but after he left the Talan
residence he did not see Kgd. Fernandez anymore. Kgd. Fernandez saw him inside his
(Gallarde's) toilet on the night of May 6; thereafter Fernandez took him to the barangay
captain and later he was turned over to the PNP at Camp Narciso Ramos. The police
informed him that he was a suspect in the rape and killing of Editha Talan, and he told
them that he did not commit the crime. At the Talan residence he was wearing short
pants and rubber slippers. Fernandez asked him at the police headquarters to pull down
his shorts and he complied. He was then wearing briefs with a hemline that was a little
loose. He was informed that a cadaver was recovered near his house. When he was
asked questions while in police custody, he was not represented by any lawyer. prcd
GALLARDE further declared on cross-examination and on questions by the court that he
considered Editha Talan as a sister and her parents also treated him in a friendly
manner. When he came to know that Editha's parents suspected him of the crime, he
was still on friendly terms with them. However, he did not go to them to tell them he was
innocent because they brandished a bolo in anger.

110

Finally, he testified that in the evening of May 6 he came to know that Editha died. She
was still alive when he was drinking at the back of the Talan house and left for home.
From the time he arrived, he never left again that night, and his mother and brothers
knew it for a fact. 7

1. In convicting [him] of the crime of murder in an information for

rape with homicide.

On 12 February 1998, the trial court rendered a decision convicting GALLARDE of the
crime of murder only, not of the complex crime of rape with homicide because of the
lack of proof of carnal knowledge. It observed:

2. In concluding that the prosecution has proven beyond

reasonable doubt that [he] was responsible for the death
of Editha Talan.

Exh. "T" and Dr. Tebangin's testimony thereon show that the late
Editha Talan sustained slit wounds inflicted as a means of
suffocating her to death, a laceration of the lower portion of her
vagina, and a ruptured hymen. What allegedly oozed from her
vagina was blood, coupled with dirt. Had there been observed the
presence of even just a drop of seminal fluid in or around her
vagina, the Court would readily conclude that the laceration and
rupture resulted from phallic intrusion. Without such observation,
however, "carnal knowledge" as element of rape would be an
open question.

The trial court did not appreciate the alternative circumstance of intoxication either as
a mitigating or aggravating circumstance pursuant to Article 15 of the Revised Penal
Code because GALLARDE's alleged inebriation on the night of 6 May 1997, was not
satisfactorily proven.
As to the civil aspect of the case, the trial court considered the stipulation of the parties
on 27 October 1997 fixing a liquidated amount of P70,000 as actual damages, and
leaving the matter of moral damages to the discretion of the court. The trial court was
not inclined to award moral damages because the "evidence before it tends to
disclose that on the night of 6 May 1997, before she died, Editha was a much-neglected
child."
Accordingly, in its decision 8 of 12 February 1998, the trial court decreed:
WHEREFORE, his guilt having been established beyond a
reasonable doubt, the Court hereby convicts the accused RADEL
GALLARDE YHERMOSA of the crime of MURDER, and sentences him
to suffer the penalty of reclusion perpetua and to indemnify the
heirs of the late Editha Talan in the negotiated sum of P70,000.00. 9
His motion for reconsideration, 10 having been denied by the trial court in its
Resolution 11 of 28 February 1998, GALLARDE seasonably appealed to us. cdphil

3. In not acquitting [him] on the ground of notches of proof

beyond reasonable doubt. 12

We sustain GALLARDE's contention that the trial court erred in convicting him of murder
in an information charging him of rape with homicide. A reading of the accusatory
portion of the information shows that there was no allegation of any qualifying
circumstance. Although it is true that the term "homicide" as used in special complex
crime of rape with homicide is to be understood in its generic sense, and includes
murder and slight physical injuries committed by reason or on the occasion of rape, 13 it
is settled in this jurisdiction that where a complex crime is charged and the evidence
fails to support the charge as to one of the component offense, the accused can be
convicted of the other. 14 In rape with homicide, in order to be convicted of murder in
case the evidence fails to support the charge of rape, the qualifying circumstance must
be sufficiently alleged and proved. Otherwise, it would be a denial of the right of the
accused to be informed of the nature of the offense with which he is charged. 15 It is
fundamental that every element of the offense must be alleged in the complaint or
information. The main purpose of requiring the various elements of a crime to be set out
in an information is to enable the accused to suitably prepare his defense. He is
presumed to have no independent knowledge of the facts that constitute the
offense. 16
In the absence then in the information of an allegation of any qualifying circumstance,
GALLARDE cannot be convicted of murder. An accused cannot be convicted of an
offense higher than that with which he is charged in the complaint or information under
which he is tried. It matters not how conclusive and convincing the evidence of guilt
may be, but an accused cannot be convicted of any offense, unless it is charged in the
complaint or information for which he is tried, or is necessarily included in that which is
charged. He has a right to be informed of the nature of the offense with which he is
charged before he is put on trial. To convict an accused of a higher offense than that
charged in the complaint or information under which he is tried would be an
unauthorized denial of that right. 17

We accepted the appeal on 9 September 1998.

Nevertheless, we agree with the trial court that the evidence for the prosecution,
although circumstantial, was sufficient to establish beyond reasonable doubt the guilt of
GALLARDE for the death of EDITHA. cdasia

In his Appellant's Brief filed on 16 March 1999, GALLARDE alleges that the trial court
committed the following errors:

Direct evidence of the commission of a crime is not the only matrix wherefrom a trial
court may draw its conclusion and finding of guilt. 18 The prosecution is not always

111

tasked to present direct evidence to sustain a judgment of conviction; the absence of

direct evidence does not necessarily absolve an accused from any criminal
liability. 19 Even in the absence of direct evidence, conviction can be had on the basis
of circumstantial evidence, provided that the established circumstances constitute an
unbroken chain which leads one to one fair and reasonable conclusion which points to
the accused, to the exclusion of all others, as the guilty person, i.e., the circumstances
proved must be consistent with each other, consistent with the hypothesis that the
accused is guilty, and at the same time inconsistent with any other hypothesis except
that of guilty. 20
The rules on evidence and precedents sustain the conviction of an accused through
circumstantial evidence, as long as the following requisites are present: (1) there must
be more than one circumstance; (2) the inference must be based on proven facts; and
(3) the combination of all circumstances produces a conviction beyond doubt of the
guilt of the accused. 21
The importance of circumstantial evidence is more apparent in the prosecution of cases
of rape with homicide. The nature of the crime of rape, where it is usually only the victim
and the rapist who are present at the scene of the crime, makes prosecutions for the
complex crime of rape with homicide particularly difficult since the victim can no longer
testify against the perpetrator of the crime. In these cases pieces of the evidence
against the accused are usually circumstantial. 22
The circumstantial evidence in the case at bar, when analyzed and taken together,
leads to no other conclusion than that GALLARDE, and no other else, killed EDITHA and
that he is guilty therefor. We quote with approval the lower court's enumeration of the
circumstantial evidence in this case: cdrep
1. Gallarde, 18, and Editha, 10, were neighbors and friends, even
as she used to frequent his place.
2. Both were at the Talan residence on the night of May 6, 1997
while neighbors indulged themselves in beer.
3. Among said neighbors Cabinta saw them hand in hand by the
toilet situated five (5) meters east of the Talan kitchen.

6. Gallarde wore short pants and rubber slippers at the drinking

place. Subsequently he was seen wearing shorts in his
own toilet.
7. At past 10:00 in the evening during an intensive search for the
then missing Editha, her lifeless body was found in a
shallow grave situated some distance behind Gallarde's
residence.
8. Before Editha's body was discovered, a searcher found a girl's
slipper (Exh. "B"), 5-6 inches long, among thickets seven
meters away from Gallarde's house.
9. Another searcher saw a second slipper (Exh. "B-1"), of the same
color and size as the first one. Both slippers were Editha's,
the searchers recalled.
10. A third rubber slipper (Exh. "C') was thereafter found in the field
near Exh. "B-1." It was an old slipper, 8-9 inches long and
with a hole at the rear end.
11. Soil stuck to each one of the three slippers.
12. Gallarde was not at home when searchers went to look for him
there, after Cabinta told them that Editha was last seen
with Gallarde.
13. When Gallarde was discovered squatting in the dark toilet
behind his house and beside the thickets, his shorts were
up and on. His hands and knees were soiled.
14. At the toilet he was asked the innocent question of where
Editha was and he answered revealingly, thus: "I did not
do anything to her" and "I let her go and brought her
back to the dike and let her go home."

4. After Cabinta whistled he saw Gallarde run home towards north

after letting go of Editha's hands. Neighbor Clemente also
noticed that Gallarde disappeared, and that Editha
returned to the kitchen.

15. When asked where he had been, as the toilet was first seen
empty, Gallarde said he was with Kiko and he slept at the
latter's house, which answer Mario Bado promptly refuted
saying, "Vulva of your mother . . . Kiko was with me
drinking." Bado and Kiko were not at the place of the
Talans that night.

5. Cabinta followed Editha back to the kitchen, and saw her

holding a kerosene lamp. She told him that she was going
to look for "Dalpac," and off she went in the same
direction Gallarde took.

16. Yanked out of the dark toilet near his own house, Gallarde
joined Kgd. Mario Fernandez sans protest.
17. Dr. Tebangin found on Editha's cheeks two slit wounds, each
being an inch away from her nostrils. Both wounds were
fresh and reddish.

112

From the lower portion of Editha's vagina blood oozed,

accompanied by dirt.

As discussed above, the circumstantial evidence as established by the prosecution in

this case and enumerated by the trial court positively established the identity of
GALLARDE, and no one else, as the person who killed EDITHA.

Her hymen was ruptured and was still bleeding.

The medico-legal concluded that there must have been a forceful
covering of Editha's nose and mouth because of the
presence of the slit wounds on both sides of her face, and
that in 30 seconds unconsciousness and weakening
resulted, with the vaginal injuries contributing to her
death. 23
As to the crime of rape, there is much to be desired with respect to the prosecution's
evidence therefor, but not for the reason adduced by the trial court, namely, the
absence of spermatozoa in EDITHA's private part and thereabout. It is well settled that
the absence of spermatozoa in or around the vagina does not negate the commission
of rape. 24 Our doubt on the commission of rape is based on the fact that there is at
all no convincing proof that the laceration of the vagina and the rupture of the hymen
of EDITHA were caused in the course of coitus or by a male organ. Our meticulous
reading of the testimony of Dr. Tebangin disclosed that he was never asked if the
laceration and the rupture could have been caused by the penis of a human being.
Needless to state, these could have been caused by any object other than the penis of
a person. LLphil
We cannot sustain the contention of GALLARDE that he was not positively identified as
the assailant since there was no eyewitness to the actual commission of the crime. It
does not follow that although nobody saw GALLARDE in the act of killing EDITHA,
nobody can be said to have positively identified him. Positive identification pertains
essentially to proof of identity and not per se to that of being an eyewitness to the very
act of commission of the crime. There are two types of positive identification. A witness
may identity a suspect or accused in a criminal case as the perpetrator of the crime as
an eyewitness to the very act of the commission of the crime. This constitutes direct
evidence. There may, however, be instances where, although a witness may not have
actually seen the very act of commission of a crime, he may still be able to positively
identify a suspect or accused as the perpetrator of a crime as for instance when the
latter is the person or one of the persons last seen with the victim immediately before
and right after the commission of the crime. This is the second type of positive
identification, which forms part of circumstantial evidence, which, when taken together
with other pieces of evidence constituting an unbroken chain, leads to only fair and
reasonable conclusion, which is that the accused is the author of the crime to the
exclusion of all others. If the actual eyewitnesses are the only ones allowed to possibly
positively identify a suspect or accused to the exclusion of others, then nobody can
ever be convicted unless there is an eyewitness, because it is basic and elementary that
there can be no conviction until and unless an accused is positively identified. Such a
proposition is absolutely absurd, because it is settled that direct evidence of the
commission of a crime is not the only matrix wherefrom a trial court may draw its
conclusion and finding of guilt. 25 If resort to circumstantial evidence would not be
allowed to prove identity of the accused on the absence of direct evidence, then
felons would go free and the community would be denied proper protection. cdasia

We cannot agree with the trial court's rejection of the photographs (Exhibits "I", "J" and
"K") taken of GALLARDE immediately after the incident on the ground that "the same
were taken while [GALLARDE] was already under the mercy of the police." The taking of
pictures of an accused even without the assistance of counsel, being a purely
mechanical act, is not a violation of his constitutional right against self-incrimination.
The constitutional right of an accused against self-incrimination 26 proscribes the use of
physical or moral compulsion to extort communications from the accused and not the
inclusion of his body in evidence when it may be material. Purely mechanical acts are
not included in the prohibition as the accused does not thereby speak his guilt, hence
the assistance and guiding hand of counsel is not required. 27 The essence of the right
against self-incrimination is testimonial compulsion, that is, the giving of evidence
against himself through a testimonial act. 28 Hence, it has been held that a woman
charged with adultery may be compelled to submit to physical examination to
determine her pregnancy; 29 and an accused may be compelled to submit to physical
examination and to have a substance taken from his body for medical determination as
to whether he was suffering from gonorrhea which was contracted by his victim; 30 to
expel morphine from his mouth; 31 to have the outline of his foot traced to determine its
identity with bloody footprints; 32 and to be photographed or measured, or his
garments or shoes removed or replaced, or to move his body to enable the foregoing
things to be done. 33
There is also no merit in GALLARDE's argument that the failure of the prosecution to
prove beyond reasonable doubt the place and time of the commission of the crime is
fatal and will justify his acquittal.
The place, time and date of the commission of the offense are not essential elements of
the crime of rape with homicide. The gravamen of the offense is the carnal knowledge
of a woman and that on the occasion of or as a reason thereof, the crime of homicide
was committed. Conviction may be had on proof of the commission of the crime
provided it appears that the specific crime charged was in fact committed prior to the
date of the filing of the complaint or information, within the period of the statute of
limitation, and within the jurisdiction of the court. 34
The allegation of the place of commission of the crime in the complaint or information is
sufficient if it can be understood therefrom that the offense was committed or some of
the essential ingredients thereof occurred at some place within the jurisdiction of the
court. 35 The rule merely requires that the information shows that the crime was
committed within the territorial jurisdiction of the court. The Court may even take judicial
notice that said place is within its jurisdiction. 36
As to the time of the commission of the crime, the phrase "on or about" employed in the
information does not require the prosecution "to prove any precise date or time," but
may prove any date or time which is not so remote as to surprise and prejudice the
defendant." 37

113

Contrary to the claim of GALLARDE, the prosecution was able to establish the proximate
time of the commission of the crime, which was sometime between 9:00 p.m., when
GALLARDE left the house of Talan followed by EDITHA, and 10:30 p.m., when the body of
EDITHA was found. This was further corroborated by the examining physician who
testified, on the basis of the degree of rigor mortis, that EDITHA died more or less, at
10:00 p.m. of 6 May 1997. 38
Likewise, GALLARDE's alibi and bare denial deserve no consideration. He did not present
witnesses who could confirm his presence in his house. No member of his family
corroborated him on this matter. The defenses of denial and alibi, if unsubstantiated by
clear and convincing evidence, are negative and self-serving, deserve no weight in
law, and cannot be given evidentiary value over the testimony of credible witnesses
who testify on affirmative matters. 39
Moreover, even assuming that GALLARDE's claim is true, his stay in his house did not
preclude his physical presence at the locus criminis or its immediate vicinity. The place
where the body of EDITHA was found buried was a few meters from his house, the place
pointed to in the alibi and can be reached in a short while. For the defense of alibi to
prosper, the requirements of time and place must be strictly met. It is not enough to
prove that the accused was somewhere else when the crime was committed, he must
demonstrate that it was physically impossible for him to have been at the scene of the
crime at the time of its commission. 40
Besides, no evil motive has been established against the witnesses for the prosecution
that might prompt them to incriminate the accused or falsely testify against him. It is
settled that when there is no showing that the principal witnesses for the prosecution
were actuated by improper motive, the presumption is that the witnesses were not so
actuated and their testimonies are thus entitled to full faith and credit. 41 Testimonies of
witnesses who have nomotive or reason to falsify or perjure their testimonies should be
given credence.42
With respect to GALLARDE's claim that he was arrested without warrant, suffice it to say
that any objection, defect, or irregularity attending an arrest must be made before the
accused enters his plea. 43 The records show no objection was ever interposed prior to
arraignment and trial. 44 GALLARDE's assertion that he was denied due process by
virtue of his alleged illegal arrest is negated by his voluntary submission to the jurisdiction
of the trial court, as manifested by the voluntary and counsel-assisted plea he entered
during arraignment and by his active participation in the trial thereafter. 45 It is settled
that any objection involving a warrant of arrest or procedure in the acquisition by the
court of jurisdiction over the person of an accused must be made before he enters his
plea, otherwise the objection is deemed waived. 46 It is much too late in the day to
complain about the warrantless arrest after a valid information had been filed and the
accused arraigned and trial commenced and completed and a judgment of
conviction rendered against him. 47 Verily, the illegal arrest of an accused is not
sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint
after trial free from error; such arrest does not negate the validity of the conviction of
the accused. 48
Homicide, which we find to be the only crime committed by GALLARDE, is defined in
Article 249 of the Revised Penal Code and is punished with reclusion temporal. In the

absence of any modifying circumstance, it shall be imposed in its medium

period. GALLARDE is entitled to the benefits of the Indeterminate Sentence Law.
Accordingly, he can be sentenced to suffer an indeterminate penalty ranging from ten
(10) years of the medium period of prision mayor as minimum to seventeen (17) years
and four (4) months of the medium period of reclusion temporal asmaximum. LexLib
As to the civil aspect of the case, the parties agreed on P70,000 as liquidated damages.
This should be construed as actual damages. However, as indemnity for death, the
additional sum of P50,000, per current case law, should be awarded.
WHEREFORE the assailed decision of the Regional Trial Court, Branch 51,
Tayug, Pangasinan, in Criminal Case No. T-1978 finding accused-appellant RADEL
GALLARDE guilty of the crime of murder is hereby modified. As modified, RADEL
GALLARDE is hereby found guilty beyond reasonable doubt, as principal, of the
crime of Homicide, defined under Article 249 of the Revised Penal Code, and is
hereby sentenced to suffer an indeterminate penalty ranging from ten (10) years of
the medium period of prision mayor asminimum to seventeen (17) years and four
(4) months of the medium period ofreclusion temporal as maximum, and to pay the
heirs of the victim, Editha Talan, the sum of P70,000 as liquidated actual damages
and P50,000 as indemnity for the death of Editha Talan. LLphil

Costs against accused-appellant RADEL GALLARDE in both instances.

Puno, Kapunan, Pardo and Ynares-Santiago, JJ., concur.
||| (People v. Gallarde, G.R. No. 133025, [February 17, 2000], 382 PHIL 718741)

21- Villaflor v. Summers, G.R. No. 16444, 8 September 1920

EN BANC
[G.R. No. 16444. September 8, 1920.]
EMETERIA VILLAFLOR, petitioner, vs. RICARDO SUMMERS, sheriff of
the city of Manila, respondent.
Alfredo Calupitan and Gibbs, McDonough & Johnson for petitioner.
Assistant City Fiscal Felix for respondent.
DECISION
MALCOLM, J p:

114

The petitioner prays that a writ of habeas corpus issue to restore her to her
liberty.
The facts are not in dispute. In a criminal case pending before the Court
of First Instance of the city of Manila, Emeteria Villaflor and Florentino Souingco are
charged with the crime of adultery. On this case coming on for trial before the Hon.
Pedro Concepcion, Judge of First Instance, upon the petition of the assistant fiscal
for the city of Manila, the court ordered the defendant Emeteria Villaflor, now
become the petitioner herein, to submit her body to the examination of one or two
competent doctors to determine if she was pregnant or not. The accused refused
to obey the order on the ground that such examination of her person was a
violation of the constitutional provision in contempt of court and was ordered to be
committed to Bilibid Prison until she should permit the medical examination
required by the court.
The sole legal issue arising from the admitted facts is whether the
compelling of a woman to permit her body to be examined by physicians to
determine if she is pregnant, violates that portion of our Code of Criminal
Procedure which find their origin in the Constitution of the United States and
practically all state constitutions and in the common law rules of evidence,
providing that no person shall be compelled in any criminal case to be a witness
against himself . (President's Instructions to the Philippine Commission; Act of
Congress of July 1, 1902, section 5, paragraph 3; Act of Congress of August 29,
1916, section 3; paragraph 3; Code of Criminal Procedure, section 15 [4]; United
States Constitution, fifth amendment.) Counsel for petitioner argues that such
bodily exhibition is an infringement of the constitutional provision; the representative
of the city fiscal contends that it is not an infringement of the constitutional
provision. The trial judge in the instant case has held with the fiscal; while it is
brought to our notice that a judge of the same court has held on an identical
question as contended for by the attorney for the accused and petitioner.
The authorities are abundant but conflicting. What may be termed the
conservative courts emphasize greatly the humanitarianism of the constitutional
provision and are pleased to extend the privilege in order that its mantle may cover
any fact by which the accused is compelled to make evidence against himself.
(Compare State vs. Jacobs [1858], 50 N. C., 259 with State vs. Ah Chuey [1879], 14
Nev., 79. See further State vs. Nordstrom [1893], 7 Wash., 506; State vs. Height [1902],
117 Iowa, 650; Thornton vs. State [1903], 117 Wis., 338.) A case concordant with this
view and almost directly in point is People vs. McCoy relating to self-incrimination.
Thereupon she was found ([1873], 45 How. Pr., 216). A woman was charged with
the crime of infanticide. The coroner directed two physicians to go to the jail and
examine her private parts to determine whether she had recently been delivered
of a child. She objected to the examination, but being threatened with force,
yielded, and the examination was had. The evidence of these physicians was
offered at the trial and ruled out. The court said that the proceeding was in
violation of the spirit and meaning of the Constitution, which declares that
"no person shall be compelled in any criminal case to be a witness against himself."
Continuing, the court said: "They might as well have sworn the prisoner, and
compelled her, by threats, to testify that she had been pregnant, and had been
delivered of a child, as to have compelled her, by threats, to allow them to look

into her person, with the aid of a speculum, to ascertain whether she had been
pregnant and been delivered of a child. . . . Has this court the right to compel the
prisoner now to submit to an examination of her private parts and breasts, by
physicians, and then have them testify that from such examination they are of the
opinion she is not a virgin, and has had a child? It is not possible that this court has
that right; and it is too clear to admit of argument that evidence thus obtained
would be inadmissible against the prisoner."
It may be revealing a judicial secret, but nevertheless we cannot refrain
from saying that, greatly impressed with the weight of these decisions, especially
the one written by Mr. Justice McClain, in State vs. Height, supra, the instant case
was reported by the writer with the tentative recommendation that the court
should lay down the general rule that a defendant can be compelled to disclose
only those parts of the body which are not usually covered. But having disabused
our minds of a too sensitive appreciation of the rights of accused persons, and
having been able, as we think, to penetrate through the maze of law reports to the
policy which lies behind the constitutional guaranty and the common law principle,
we have come finally to take our stand with what we believe to be the reason of
the case.
In contradistinction to the cases above-mentioned are others which seem
to us more progressive in nature. Among these can be prominently mentioned
decisions of the United States Supreme Court, and the Supreme Court of these
Islands. Thus, the always forward looking jurist, Mr. Justice Holmes, in the late case of
Holt vs. United States ([1910], 218 U. S., 245), in resolving an objection based upon
what he termed "an extravagant extension of the Fifth Amendment," said: "The
prohibition of compelling a man in a criminal court to be a witness against himself is
a prohibition of the use of physical or moral compulsion to extort communications
from him, not an exclusion of his body as evidence when it may be material." (See
also, of same general tenor, decision of Mr. Justice Day in Adams vs. New York
[1903], 192 U. S., 585.) The Supreme Court of the Philippine Islands, in two decisions,
has seemed to limit the protection to a prohibition against compulsory testimonial
self-incrimination. The constitutional limitation was said to be "simply a prohibition
against legal process to extract from the defendant's own lips, against his will, an
admission of his guilt." (U. S. vs. Tan Teng [1912], 23 Phil., 145; U. S. vs. Ong Siu Hong
[1917], 36 Phil., 735, and the derivatory principle announced in 16 Corpus Juris, 567,
568, citing the United States Supreme Court and the Supreme Court of the
Philippine Islands as authority.)
Although we have stated a proposition previously announced by this
court and by the highest tribunal in the United States, we cannot unconcernedly
leave the subject without further consideration. Even in the opinion of Mr. Justice
Holmes, to which we have alluded, there was inserted the careful proviso that "we
need not consider how far a court would go in compelling a man to exhibit
himself." Other courts have likewise avoided any attempt to determine the exact
location of the dividing line between what is proper and what is improper in this
very broad constitutional field. But here before us is presented what would seem to
be the most extreme case which could be imagined. While the United States
Supreme Court could nonchalantly decree that testimony that an accused person
put on a blouse and it fitted him is not a violation of the constitutional provision,

115

while the Supreme Court of Nevada could go so far as to require the defendant to
roll up his sleeve in order to disclose tattoo marks, and while the Supreme Court of
the Philippine Islands could permit substances taken from the person of an accused
to be offered in evidence, none of these even approach in apparent harshness an
order to make a woman, possibly innocent, to disclose her body in all of its sanctity
to the gaze of strangers. We can only consistently consent to the retention of a
principle which would permit of such a result by adhering steadfastly to the
proposition that the purpose of the constitutional provision was and is merely to
prohibit testimonial compulsion.

So much for the authorities. For the nonce we would prefer to forget them
entirely, and here in the Philippines, being in the agreeable state of breaking new
ground, would rather desire our decision to rest on a strong foundation of reason
and justice than on a weak one of blind adherence to tradition and precedent.
Moreover, we believe that an unbiased consideration of the history of the
constitutional provision will disclose that our conclusion is in exact accord with the
causes which led to its adoption.
The maxim of the common law, Nemo tenetur seipsum accusare, was
recognized in England in early days, but not in the other legal systems of the world,
in a revolt against the thumbscrew and the rack. A legal shield was raised against
odious inquisitorial methods of interrogating an accused person by which to extort
unwilling confessions with the ever present temptation to commit the crime of
perjury. The kernel of the privilege as disclosed by the textwriters was testimonial
compulsion. As forcing a man to be a witness against himself was deemed contrary
to the fundamentals of republican government, the principle was taken into the
American Constitutions, and from the United States was brought to the Philippine
Islands, in exactly as wide but no wider a scope as it existed in old English
days. The provision should here be approached in no blindly worshipful spirit, but
with a judicious and a judicial appreciation of both its benefits and its abuses.
(Read the scholarly articles of Prof. Wigmore in 5 Harvard L. R. [1891], p. 71, and 15
Harvard L. R., 1902, p. 610, found in 4 Wigmore on Evidence, pp. 3069 et seq., and
U. S. vs. Navarro [1904], 3 Phil., 143.)
Perhaps the best way to test the correctness of our position is to go back
once more to elementals and ponder on what is the prime purpose of a criminal
trial. As we view it, the object of having criminal laws is to purge the community of
persons who violate the laws to the great prejudice of their fellow men. Criminal
procedure, the rules of evidence, and constitutional provisions, are then provided,
not to protect the guilty but to protect the innocent. No rule is intended to be so
rigid as to embarrass the administration of justice in its endeavor to ascertain the
truth. No accused person should be afraid of the use of any method which will tend
to establish the truth. For instance, under the facts before us, to use torture to make
the defendant admit her guilt might only result in inducing her to tell a falsehood.
But noevidence of physical facts can for any substantial reason be held to be
detrimental to the accused except in so far as the truth is to be avoided in order to
account a guilty person.

Obviously a stirring plea can be made showing that under the due
process of law clause of the Constitution every person has a natural and inherent
right to the possession and control of his own body. It is extremely abhorrent to
one's sense of decency and propriety to have to decide that such inviolability of
the person, particularly of a woman, can be invaded by exposure to another's
gaze. As Mr. Justice Gray in Union Pacific Railway Co. vs. Botsford ([1891], 141 U. S.,
250) said, "To compel any one, and especially a woman, to lay bare the body, or to
submit to the touch of a stranger, without lawful authority, is an indignity, an assault,
and a trespass." Conceded, and yet, as well suggested by the same court, even
superior to the complete immunity of a person to be let alone is the interest which
the public has in the orderly administration of justice. Unfortunately, all too
frequently the modesty of witnesses is shocked by forcing them to answer, without
any mental evasion, questions which are put to them; and such a tendency to
degrade the witness in public estimation does not exempt him from the duty of
disclosure. Between a sacrifice of the ascertainment of truth to personal
considerations, between a disregard of the public welfare for refined notions of
delicacy, law and justice cannot hesitate.
The protection of accused persons has been carried to such an
unwarranted extent that criminal trials have sometimes seemed to be like a game
of shuttlecocks, with the judge as referee, the lawyers as players, the criminal as
guest of honor, and the public as fascinated spectators. Against such a loose
extension of constitutional guaranties we are here prepared to voice our protest.
Fully conscious that we are resolving a most extreme case in a sense,
which on first impression is a shock to one's sensibilities, we must nevertheless
enforce the constitutional provision in this jurisdiction in accord with the policy and
reason thereof, undeterred by merely sentimental influences. Once' again we lay
down the rule that the constitutional guaranty, that no person shall be compelled
in any criminal case to be a witness against himself, is limited to a prohibition
against compulsory testimonial self-incrimination. The corollary to the proposition is
that, on a proper showing and under an order of the trial court, an ocular
inspection of the body of the accused is permissible. The proviso is that torture or
force shall be avoided. Whether facts fall within or without the rule with its corollary
and proviso must, of course, be decided as cases arise.
It is a reasonable presumption that in an examination by reputable and
disinterested physicians due care will be taken not to use violence and not to
embarrass the patient any more than is absolutely necessary. Indeed, noobjection
to the physical examination being made by the family doctor of the accused or by
doctor of the same sex can be seen.
Although the order of the trial judge, acceding to the request of the
assistant fiscal for an examination of the person of the defendant by physicians was
phrased in absolute terms, it should, nevertheless, be understood as subject to the
limitations herein mentioned, and therefore legal. The writ of habeas corpus prayed
for is hereby denied. The costs shall be taxed against the petitioner. So ordered.
Mapa, C.J., Araullo, Avancea, Moir and Villamor, JJ., concur.

116

includes shares of stocks in the named corporations in PCGG Case No. 33 (Civil
Case No. 0033), entitled "Republic of the Philippinesversus Eduardo Cojuangco, et al." 1
22- Regala v. Sandiganbayan, G.R. No. 105938, 20 September 1996

EN BANC
[G.R. No. 105938. September 20, 1996.]
TEODORO R. REGALA, EDGARDO J. ANGARA, AVELINO V. CRUZ,
JOSE C. CONCEPCION, ROGELIO A. VINLUAN, VICTOR P. LAZATIN,
and EDUARDO U. ESCUETA, petitioners, vs. THE HONORABLE
SANDIGANBAYAN, First Division, REPUBLIC OF THE PHILIPPINES,
ACTING THROUGH THE PRESIDENTIAL COMMISSION ON GOOD
GOVERNMENT, and RAUL S. ROCO, respondents.
[G.R. No. 108113. September 20, 1996.]
PARAJA G. HAYUDINI, petitioner, vs. THE SANDIGANBAYAN and THE
REPUBLIC OF THE PHILIPPINES, respondents.
Manuel G. Abello for petitioners.
Roco Bunag Kapunan & Migallos for Raul S. Roco.
Mario E. Ongkiko for Presidential Commission on Good Government.

DECISION
KAPUNAN, J p:
These cases touch the very cornerstone of every State's judicial system, upon which the
workings of the contentious and adversarial system in the Philippine legal process are
based the sanctity of fiduciary duty in the client-lawyer relationship. The fiduciary duty
of a counsel and advocate is also what makes the law profession a unique position of
trust and confidence, which distinguishes it from any other calling. In this instance, we
have no recourse but to uphold and strengthen the mantle of protection accorded to
the confidentiality that proceeds from the performance of the lawyer's duty to his client.
The facts of the case are undisputed.
The matters raised herein are an offshoot of the institution of the Complaint on July 31,
1987 before the Sandiganbayan by the Republic of the Philippines, through the
Presidential Commission on Good Government against Eduardo M. Cojuangco, Jr., as
one of the principal defendants, for the recovery of alleged ill-gotten wealth, which

Among the defendants named in the case are herein petitioners Teodoro Regala,
Edgardo J. Angara, Avelino V. Cruz, Jose C. Concepcion, Rogelio A. Vinluan, Victor P.
Lazatin, Eduardo U. Escueta and Paraja G. Hayudini, and herein private respondent
Raul S. Roco, who all were then partners of the law firm Angara, Abello, Concepcion,
Regala and Cruz Law Offices (hereinafter referred to as the ACCRA Law Firm). ACCRA
Law Firm performed legal services for its clients, which included, among others, the
organization and acquisition of business associations and/or organizations, with the
correlative and incidental services where its members acted as incorporators, or simply,
as stockholders. More specifically, in the performance of these services, the members of
the law firm delivered to its client documents which substantiate the client's equity
holdings, i.e., stock certificates endorsed in blank representing the shares registered in
the client's name, and a blank deed of trust or assignment covering said shares. In the
course of their dealings with their clients, the members of the law firm acquire
information relative to the assets of clients as well as their personal and business
circumstances. As members of the ACCRA Law Firm, petitioners and private respondent
Raul Roco admit that they assisted in the organization and acquisition of the companies
included in Civil Case No. 0033, and in keeping with the office practice, ACCRA lawyers
acted as nominees-stockholders of the said corporations involved in sequestration
proceedings. 2
On August 20, 1991, respondent Presidential Commission on Good government
(hereinafter referred to as respondent PCGG) filed a "Motion to Admit Third Amended
Complaint" and "Third Amended Complaint" which excluded private respondent Raul S.
Roco from the complaint in PCGG Case No. 33 as party-defendant. 3 Respondent
PCGG based its exclusion of private respondent Roco as party-defendant on his
undertaking that he will reveal the identity of the principal/s for whom he acted as
nominee/stockholder in the companies involved in PCGG Case No. 33. 4
Petitioners were included in the Third Amended Complaint on the strength of the
following allegations:
14. Defendants Eduardo Cojuangco, Jr., Edgardo J. Angara, Jose
C. Concepcion, Teodoro Regala, Avelino V. Cruz, Rogelio A.
Vinluan, Eduardo U. Escueta, Paraja G. Hayudini and Raul Roco of
the Angara Concepcion Cruz Regala and Abello law offices
(ACCRA) plotted, devised, schemed, conspired and confederated
with each other in setting up, through the use of the coconut levy
funds, the financial and corporate framework and structures that
led to the establishment of UCPB, UNICOM, COCOLIFE,
COCOMARK, CIC, and more than twenty other coconut levy
funded corporations, including the acquisition of San Miguel
Corporation shares and its institutionalization through presidential
directives of the coconut monopoly. Through insidious means and
machinations, ACCRA, being the wholly-owned investment arm,
ACCRA Investments Corporation, became the holder of
approximately fifteen million shares representing roughly 3.3% of
the total outstanding capital stock of UCPB as of 31 March 1987.

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This ranks ACCRA Investments Corporation number 44 among the

top 100 biggest stockholders of UCPB which has approximately
1,400,000 shareholders. On the other hand, corporate books show
the
name
Edgardo
J.
Angara
as
holding
approximately 3,744 shares as of February, 1984. 5

In their answer to the Expanded Amended Complaint, petitioners ACCRA lawyers

alleged that:
4.4. Defendants-ACCRA lawyers' participation in the acts with
which their co-defendants are charged, was in furtherance of
legitimate lawyering.
4.4.1. In the course of rendering professional and legal
services to clients, defendants-ACCRA lawyers, Jose C.
Concepcion, Teodoro D. Regala, Rogelio A. Vinluan and
Eduardo U. Escueta, became holders of shares of stock in
the corporations listed under their respective names in
Annex 'A' of the expanded Amended Complaint as
incorporating or acquiring stockholders only and, as such,
they do not claim any proprietary interest in the said
shares of stock.
4.5. Defendant ACCRA-lawyer Avelino V. Cruz was one of
the incorporators in 1976 of Mermaid Marketing
Corporation, which was organized for legitimate business
purposes not related to the allegations of the expanded
Amended Complaint. However, he has long ago
transferred any material interest therein and therefore
denies that the 'shares' appearing in his name in Annex 'A'
of the expanded Amended Complaint are his assets. 6
Petitioner Paraja Hayudini, who had separated from ACCRA law firm, filed a separate
answer denying the allegations in the complaint implicating him in the alleged ill-gotten
wealth. 7

submission of the deeds of assignments petitioners executed in favor of its clients

covering their respective shareholdings. 9
Consequently, respondent PCGG presented supposed proof to substantiate
compliance by private respondent Roco of the conditions precedent to warrant the
latter's exclusion as party-defendant in PCGG Case No. 33, to wit: (a) Letter to
respondent PCGG of the counsel of respondent Roco dated May 24, 1989 reiterating a
previous request for reinvestigation by the PCGG in PCGG Case No. 33; (b) Affidavit
dated March 8, 1989 executed by private respondent Roco as Attachment to the letter
aforestated in (a); and (c) Letter of the Roco, Bunag, and Kapunan Law Offices dated
September 21, 1988 to the respondent PCGG in behalf of private respondent Roco
originally requesting the reinvestigation and/or re-examination of the evidence of the
PCGG against Roco in its Complaint in PCGG Case No. 33. 10
It is noteworthy that during said proceedings, private respondent Roco did not refute
petitioners' contention that he did actually not reveal the identity of the client involved
in PCGG Case No. 33, nor had he undertaken to reveal the identity of the client for
whom he acted as nominee-stockholder. 11
On March 18, 1992, respondent Sandiganbayan promulgated the Resolution, herein
questioned, denying the exclusion of petitioners in PCGG Case No. 33, for their refusal to
comply with the conditions required by respondent PCGG. It held:
xxx xxx xxx
ACCRA lawyers may take the heroic stance of not revealing the
identity of the client for whom they have acted, i.e. their principal,
and that will be their choice. But until they do identify their clients,
considerations of whether or not the privilege claimed by the
ACCRA lawyers exists cannot even begin to be debated. The
ACCRA lawyers cannot excuse themselves from the consequences
of their acts until they have begun to establish the basis for
recognizing the privilege; the existence and identity of the client.
This is what appears to be the cause for which they have been
impleaded by the PCGG as defendants herein.

Petitioners ACCRA lawyers subsequently filed their "COMMENT AND/OR OPPOSITION"

dated October 8, 1991 with Counter-Motion that respondent PCGG similarly grant the
same treatment to them (exclusion as parties-defendants) as accorded private
respondent Roco. 8 The Counter-Motion for dropping petitioners from the complaint
was duly set for hearing on October 18, 1991 in accordance with the requirements of
Rule 15 of the Rules of Court.

5. The PCGG is satisfied that defendant Roco has demonstrated his

agency and that Roco has apparently identified his principal,
which revelation could show the lack of cause against him. This in
turn has allowed the PCGG to exercise its power both under the
rules of Agency and under Section 5 of E.O. No. 14-A in relation to
the Supreme Court's ruling in Republic v. Sandiganbayan (173
SCRA 72).

In its "Comment," respondent PCGG set the following conditions precedent for the
exclusion of petitioners, namely: (a) the disclosure of the identity of its clients; (b)
submission of documents substantiating the lawyer-client relationship; and (c) the

The PCGG has apparently offered to the ACCRA lawyers the same
conditions availed of by Roco; full disclosure in exchange for
exclusion from these proceedings (par. 7, PCGG's COMMENT

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dated November 4, 1991). The ACCRA lawyers have preferred not

to make the disclosures required by the PCGG.
The ACCRA lawyers cannot, therefore, begrudge the PCGG for
keeping them as party defendants. In the same vein, they cannot
compel the PCGG to be accorded the same treatment accorded
to Roco.
Neither can this Court.

III
The Honorable Sandiganbayan committed grave abuse of
discretion in not holding that, under the facts of this case, the
attorney-client privilege prohibits petitioners ACCRA lawyers from
revealing the identity of their client(s) and the other information
requested by the PCGG.
1. Under the peculiar facts of this case, the attorney-client
privilege includes the identity of the client(s).

WHEREFORE, the Counter Motion dated October 8, 1991 filed by

the ACCRA lawyers and joined in by Atty. Paraja G. Hayudini for
the same treatment by the PCGG as accorded to Raul S. Roco is
DENIED for lack of merit. 12
ACCRA lawyers moved for a reconsideration of the above resolution but the same was
denied by the respondent Sandiganbayan. Hence, the ACCRA lawyers filed the
petition for certiorari, docketed as G.R. No. 105938, invoking the following grounds:
I
The Honorable Sandiganbayan gravely abused its discretion in
subjecting petitioners ACCRA lawyers who undisputably acted as
lawyers in serving as nominee-stockholders, to the strict application
of the law of agency.
II
The Honorable Sandiganbayan committed grave abuse of
discretion in not considering petitioners ACCRA lawyers and Mr.
Roco as similarly situated and, therefore, deserving of equal
treatment.
1. There is absolutely no evidence that Mr. Roco had
revealed, or had undertaken to reveal, the
identities of the client(s) for whom he acted as
nominee-stockholder.
2. Even assuming that Mr. Roco had revealed, or had
undertaken to reveal, the identities of the
client(s), the disclosure does not constitute a
substantial distinction as would make the
classification reasonable under the equal
protection clause.
3. Respondent Sandiganbayan sanctioned favoritism and
undue preference in favor of Mr. Roco in
violation of the equal protection clause.

2. The factual disclosures required by the PCGG are not

limited to the identity of petitioners ACCRA
lawyers' alleged client(s) but extend to other
privileged matters.
IV
The Honorable Sandiganbayan committed grave abuse of
discretion in not requiring that the dropping of party-defendants by
the PCGG must be based on reasonable and just grounds and
with due consideration to the constitutional right of petitioners
ACCRA lawyers to the equal protection of the law.
Petitioner Paraja G. Hayudini, likewise, filed his own motion for reconsideration of the
March 18, 1991 resolution which was denied by respondent Sandiganbayan. Thus, he
filed a separate petition for certiorari, docketed as G.R. No. 108113, assailing respondent
Sandiganbayan's resolution on essentially the same grounds averred by petitioners
in G.R. No. 105938.
Petitioners contend that the exclusion of respondent Roco as party-defendant in PCGG
Case No. 33 grants him a favorable treatment, on the pretext of his alleged undertaking
to divulge the identity of his client, giving him an advantage over them who are in the
same footing as partners in the ACCRA law firm. Petitioners further argue that even
granting that such an undertaking has been assumed by private respondent Roco, they
are prohibited from revealing the identity of their principal under their sworn mandate
and fiduciary duty as lawyers to uphold at all times the confidentiality of information
obtained during such lawyer-client relationship. cdasia
Respondent PCGG, through its counsel, refutes petitioners' contention, alleging that the
revelation of the identity of the client is not within the ambit of the lawyer-client
confidentiality privilege, nor are the documents it required (deeds of assignment)
protected, because they are evidence of nominee status. 13
In his comment, respondent Roco asseverates that respondent PCGG acted correctly in
excluding him as party-defendant because he "(Roco) has not filed an Answer. PCGG
had therefore the right to dismiss Civil Case No. 0033 as to Roco 'without an order of
court by filing a notice of dismissal,'" 14 and he has undertaken to identify his
principal. 15

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Petitioners' contentions are impressed with merit.

I
It is quite apparent that petitioners were impleaded by the PCGG as co-defendants to
force them to disclose the identity of their clients. Clearly, respondent PCGG is not after
petitioners but the "bigger fish" as they say in street parlance. This ploy is quite clear from
the PCGG's willingness to cut a deal with petitioners the names of their clients in
exchange for exclusion from the complaint. The statement of the Sandiganbayan in its
questioned resolution dated March 18, 1992 is explicit:
ACCRA lawyers may take the heroic stance of not revealing the
identity of the client for whom they have acted, i.e., their principal,
and that will be their choice. But until they do identify their clients,
considerations of whether or not the privilege claimed by the
ACCRA lawyers exists cannot even begin to be debated. The
ACCRA lawyers cannot excuse themselves from the consequences
of their acts until they have begun to establish the basis for
recognizing the privilege; the existence and identity of the client.

our claim that some of the shares are for Mr. Cojuangco and some
are for Mr. Marcos. Fifth, that most of these corporations are really
just paper corporations. Why do we say that? One: There
are no really fixed sets of officers, no fixed sets of directors at the
time of incorporation and even up to 1986, which is the crucial
year. And not only that, they have no permits from the municipal
authorities in Makati. Next, actually all their addresses now are care
of Villareal Law Office. They really have no address on records.
These are some of the principal things that we would ask of these
nominees stockholders, as they called themselves. 16
It would seem that petitioners are merely standing in for their clients as defendants in the
complaint. Petitioners are being prosecuted solely on the basis of activities and services
performed in the course of their duties as lawyers. Quite obviously, petitioners' inclusion
as co-defendants in the complaint is merely being used as leverage to compel them to
name their clients and consequently to enable the PCGG to nail these clients. Such
being the case, respondent PCGG hasno valid cause of action as against petitioners
and should exclude them from the Third Amended Complaint.
II

This is what appears to be the cause for which they have been
impleaded by the PCGG as defendants herein. (Italics ours)
In a closely related case, Civil Case No. 0110 of the Sandiganbayan, Third Division,
entitled "Primavera Farms, Inc., et al. vs. Presidential Commission on Good Government"
respondent PCGG, through counsel Mario Ongkiko, manifested at the hearing on
December 5, 1991 that the PCGG wanted to establish through the ACCRA that their "so
called client is Mr. Eduardo Cojuangco"; that "it was Mr. Eduardo Cojuangco who
furnished all the monies to those subscription payments in corporations included in
Annex "A" of the Third Amended Complaint; that the ACCRA lawyers executed deeds
of trust and deeds of assignment, some in the name of particular persons, some in blank.
We quote Atty. Ongkiko:
ATTY. ONGKIKO:
With the permission of this Hon. Court. I propose to establish
through these ACCRA lawyers that, one, their so-called client is Mr.
Eduardo Cojuangco. Second, it was Mr. Eduardo Cojuangco who
furnished all the monies to these subscription payments of these
corporations who are now the petitioners in this case. Third, that
these lawyers executed deeds of trust, some in the name of a
particular person, some in blank. Now, these blank deeds are
important to our claim that some of the shares are actually being
held by the nominees for the late President Marcos. Fourth, they
also executed deeds of assignment and some of these
assignments have also blank assignees. Again, this is important to

The nature of lawyer-client relationship is premised on the Roman Law concepts

of locatio conductio operarum (contract of lease of services) where one person lets his
services and another hires them without reference to the object of which the services
are to be performed, wherein lawyers' services may be compensated by honorarium or
for hire, 17 and mandato (contract of agency) wherein a friend on whom reliance
could be placed makes a contract in his name, but gives up all that he gained by the
contract to the person who requested him. 18 But the lawyer-client relationship is more
than that of the principal-agent and lessor-lessee.
In modern day perception of the lawyer-client relationship, an attorney is more than a
mere agent or servant, because he possesses special powers of trust and confidence
reposed on him by his client. 19 A lawyer is also as independent as the judge of the
court, thus his powers are entirely different from and superior to those of an ordinary
agent. 20 Moreover, an attorney also occupies what may be considered as a "quasijudicial office" since he is in fact an officer of the Court 21and exercises his judgment in
the choice of courses of action to be taken favorable to his client.
Thus, in the creation of lawyer-client relationship, there are rules, ethical conduct and
duties that breathe life into it, among those, the fiduciary duty to his client which is of a
very delicate, exacting and confidential character, requiring a very high degree of
fidelity and good faith, 22 that is required by reason of necessity and public
interest 23 based on the hypothesis that abstinence from seeking legal advice in a
good cause is an evil which is fatal to the administration of justice. 24
It is also the strict sense of fidelity of a lawyer to his client that distinguishes him from any
other professional in society. This conception is entrenched and embodies centuries of
established and stable tradition. 25 In Stockton v. Ford, 26 the U.S. Supreme Court held:

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There are few of the business relations of life involving a higher trust
and confidence than that of attorney and client, or generally
speaking, one more honorably and faithfully discharged; few more
anxiously guarded by the law, or governed by the sterner principles
of morality and justice; and it is the duty of the court to administer
them in a corresponding spirit, and to be watchful and industrious,
to see that confidence thus reposed shall not be used to the
detriment or prejudice of the rights of the party bestowing it. 27
In our jurisdiction, this privilege takes off from the old Code of Civil Procedureenacted by
the Philippine Commission on August 7, 1901. Section 383 of the Code specifically
"forbids counsel, without authority of his client to reveal any communication made by
the client to him or his advice given thereon in the course of professional
employment." 28 Passed on into various provisions of theRules of Court, the attorneyclient privilege, as currently worded provides:
Sec. 24. Disqualification by reason of privileged communication.
The following persons cannot testify as to matters learned in
confidence in the following cases:
xxx xxx xxx
An attorney cannot, without the consent of his client, be examined
as to any communication made by the client to him, or his advice
given thereon in the course of, or with a view to, professional
employment, can an attorney's secretary, stenographer, or clerk
be examined, without the consent of the client and his employer,
concerning any fact the knowledge of which has been acquired
in such capacity. 29
Further, Rule 138 of the Rules of Court states:
Sec. 20. It is the duty of an attorney:
(e) to maintain inviolate the confidence, and at every peril to
himself, to preserve the secrets of his client, and to
accept no compensation in connection with his client's business
except from him or with his knowledge and approval.
This duty is explicitly mandated in Canon 17 of the Code of Professional Responsibility
which provides that:
Canon 17. A lawyer owes fidelity to the cause of his client and he
shall be mindful of the trust and confidence reposed in him.
Canon 15 of the Canons of Professional Ethics also demands a lawyer's fidelity to client:
The lawyer owes "entire devotion to the interest of the client, warm
zeal in the maintenance and defense of his rights and the exertion

of his utmost learning and ability," to the end that nothing be taken
or be withheld from him, save by the rules of law, legally
applied. No fear of judicial disfavor or public popularity should
restrain him from the full discharge of his duty. In the judicial forum
the client is entitled to the benefit of any and every remedy and
defense that is authorized by the law of the land, and he may
expect his lawyer to assert every such remedy or defense. But it is
steadfastly to be borne in mind that the great trust of the lawyer is
to be performed within and not without the bounds of the law. The
office of attorney does not permit, much less does it demand of
him for any client, violation of law or any manner of fraud or
chicanery. He must obey his own conscience and not that of his
client.
Considerations favoring confidentiality in lawyer-client relationships are many and serve
several constitutional and policy concerns. In the constitutional sphere, the privilege
gives flesh to one of the most sacrosanct rights available to the accused, the right to
counsel. If a client were made to choose between legal representation without
effective communication and disclosure and legal representation with all his secrets
revealed then he might be compelled, in some instances, to either opt to stay away
from the judicial system or to lose the right to counsel. If the price of disclosure is too
high, or if it amounts to self incrimination, then the flow of information would be curtailed
thereby rendering the right practically nugatory. The threat this represents against
another sacrosanct individual right, the right to be presumed innocent is at once selfevident.
Encouraging full disclosure to a lawyer by one seeking legal services opens the door to
a whole spectrum of legal options which would otherwise be circumscribed by limited
information engendered by a fear of disclosure. An effective lawyer-client relationship is
largely dependent upon the degree of confidence which exists between lawyer and
client which in turn requires a situation which encourages a dynamic and fruitful
exchange and flow of information. It necessarily follows that in order to attain effective
representation, the lawyer must invoke the privilege not as a matter of option but as a
matter of duty and professional responsibility.
The question now arises whether or not this duty may be asserted in refusing to disclose
the name of petitioners' client(s) in the case at bar. Under the facts and circumstances
obtaining in the instant case, the answer must be in the affirmative.
As a matter of public policy, a client's identity should not be shrouded in
mystery.30 Under this premise, the general rule in our jurisdiction as well as in the United
States is that a lawyer may not invoke the privilege and refuse to divulge the name or
identity of his client. 31
The reasons advanced for the general rule are well established.
First, the court has a right to know that the client whose privileged information is sought
to be protected is flesh and blood.

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Second, the privilege begins to exist only after the attorney-client relationship has been
established. The attorney-client privilege does not attach until there is a client
Third, the privilege generally pertains to the subject matter of the relationship.
Finally, due process considerations require that the opposing party should, as a general
rule, know his adversary. "A party suing or sued is entitled to know who his opponent
is." 32 He cannot be obliged to grope in the dark against unknown forces. 33
Notwithstanding these considerations, the general rule is however qualified by some
important exceptions.
1) Client identity is privileged where a strong probability exists that revealing the client's
name would implicate that client in the very activity for which he sought the lawyer's
advice.
In Ex-Parte Enzor, 34 a state supreme court reversed a lower court order requiring a
lawyer to divulge the name of her client on the ground that the subject matter of the
relationship was so closely related to the issue of the client's identity that the privilege
actually attached to both. In Enzor, the unidentified client, an election official, informed
his attorney in confidence that he had been offered a bribe to violate election laws or
that he had accepted a bribe to that end. In her testimony, the attorney revealed that
she had advised her client to count the votes correctly, but averred that she could not
remember whether her client had been, in fact, bribed. The lawyer was cited for
contempt for her refusal to reveal his client's identity before a grand jury. Reversing the
lower court's contempt orders, the state supreme court held that under the
circumstances of the case, and under the exceptions described above, even the name
of the client was privileged.
U.S. v. Hodge and Zweig, 35 involved the same exception, i.e. that client identity is
privileged in those instances where a strong probability exists that the disclosure of the
client's identity would implicate the client in the very criminal activity for which the
lawyer's legal advice was obtained.
The Hodge case involved federal grand jury proceedings inquiring into the activities of
the "Sandino Gang," a gang involved in the illegal importation of drugs in the United
States. The respondents, law partners, represented key witnesses and suspects including
the leader of the gang, Joe Sandino.
In connection with a tax investigation in November of 1973, the IRS issued summons to
Hodge and Zweig, requiring them to produce documents and information regarding
payment received by Sandino on behalf of any other person, and vice versa. The
lawyers refused to divulge the names. The Ninth Circuit of the United States Court of
Appeals, upholding non-disclosure under the facts and circumstances of the case, held:
A client's identity and the nature of that client's fee arrangements
may be privileged where the person invoking the privilege can
show that a strong probability exists that disclosure of such
information would implicate that client in the very criminal activity

for which legal advice was sought Baird v. Koerner, 279 F.2d at 680.
While in Baird Owe enunciated this rule as a matter of California
law, the rule also reflects federal law. Appellants contend that
the Baird exception applies to this case.
The Baird exception is entirely consonant with the principal policy
behind the attorney-client privilege. "In order to promote freedom
of consultation of legal advisors by clients, the apprehension of
compelled disclosure from the legal advisors must be removed;
hence, the law must prohibit such disclosure except on the client's
consent." 8 J. Wigmore, supra Sec.2291, at 545. In furtherance of
this policy, the client's identity and the nature of his fee
arrangements are, in exceptional cases, protected as confidential
communications. 36
2) Where disclosure would open the client to civil liability, his identity is privileged. For
instance, the peculiar facts and circumstances of Neugass v.Terminal Cab
Corporation, 37 prompted the New York Supreme Court to allow a lawyer's claim to the
effect that he could not reveal the name of his client because this would expose the
latter to civil litigation. llcd
In the said case, Neugass, the plaintiff, suffered injury when the taxicab she was riding,
owned by respondent corporation, collided with a second taxicab, whose owner was
unknown. Plaintiff brought action both against defendant corporation and the owner of
the second cab, identified in the information only as John Doe. It turned out that when
the attorney of defendant corporation appeared on preliminary examination, the fact
was somehow revealed that the lawyer came to know the name of the owner of the
second cab when a man, a client of the insurance company, prior to the institution of
legal action, came to him and reported that he was involved in a car accident. It was
apparent under the circumstances that the man was the owner of the second cab. The
state supreme court held that the reports were clearly made to the lawyer in his
professional capacity. The court said:
That his employment came about through the fact that the
insurance company had hired him to defend its policyholders
seems immaterial. The attorney in such cases is clearly the attorney
for the policyholder when the policyholder goes to him to report an
occurrence contemplating that it would be used in an action or
claim against him. 38
xxx xxx xxx.
All communications made by a client to his counsel, for the
purpose of professional advice or assistance, are privileged,
whether they relate to a suit pending or contemplated, or to any
other matter proper for such advice or aid; . . . And whenever the
communication made, relates to a matter so connected with the
employment as attorney or counsel as to afford presumption that it

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was the ground of the address by the client, then it is privileged

from disclosure. . . .
It appears . . . that the name and address of the owner of the
second cab came to the attorney in this case as a confidential
communication. His client is not seeking to use the courts, and his
address cannot be disclosed on that theory, nor is the present
action pending against him as service of the summons on him has
not been effected. The objections on which the court reserved
decision are sustained. 39
In the case of Matter of Shawmut Mining Company, 40 the lawyer involved was
required by a lower court to disclose whether he represented certain clients in a certain
transaction. The purpose of the court's request was to determine whether the unnamed
persons as interested parties were connected with the purchase of properties involved
in the action. The lawyer refused and brought the question to the State Supreme Court.
Upholding the lawyer's refusal to divulge the names of his clients the court held:
If it can compel the witness to state, as directed by the order
appealed from, that he represented certain persons in the
purchase or sale of these mines, it has made progress in
establishing by such evidence their version of the litigation. As
already suggested, such testimony by the witness would compel
him to disclose not only that he was attorney for certain people,
but that, as the result of communications made to him in the
course of such employment as such attorney, he knew that they
were interested in certain transactions. We feel sure that under
such conditionsno case has ever gone to the length of compelling
an attorney, at the instance of a hostile litigant, to disclose not only
his retainer, but the nature of the transactions to which it related,
when such information could be made the basis of a suit against
his client. 41
3) Where the government's lawyers have no case against an attorney's client unless, by
revealing the client's name, the said name would furnish the only link that would form
the chain of testimony necessary to convict an individual of a crime, the client's name is
privileged.
In Baird vs. Korner, 42 a lawyer was consulted by the accountants and the lawyer of
certain undisclosed taxpayers regarding steps to be taken to place the undisclosed
taxpayers in a favorable position in case criminal charges were brought against them
by the U.S. Internal Revenue Service (IRS).
It appeared that the taxpayer's returns of previous years were probably incorrect and
the taxes understated. The clients themselves were unsure about whether or not they
violated tax laws and sought advice from Baird on the hypothetical possibility that they
had. No investigation was then being undertaken by the IRS of the taxpayers.
Subsequently, the attorney of the taxpayers delivered to Baird the sum of $12,706.85,
which had been previously assessed as the tax due, and another amount of money

representing his fee for the advice given. Baird then sent a check for $12,706.85 to the
IRS in Baltimore, Maryland, with a note explaining the payment, but without naming his
clients. The IRS demanded that Baird identify the lawyers, accountants, and other clients
involved. Baird refused on the ground that he did not know their names, and declined
to name the attorney and accountants because this constituted privileged
communication. A petition was filed for the enforcement of the IRS summons. For Baird's
repeated refusal to name his clients he was found guilty of civil contempt. The Ninth
Circuit Court of Appeals held that, a lawyer could not be forced to reveal the names of
clients who employed him to pay sums of money to the government voluntarily in
settlement of undetermined income taxes, unsued on, and with no government audit or
investigation into that client's income tax liability pending. The court emphasized the
exception that a client's name is privileged when so much has been revealed
concerning the legal services rendered that the disclosure of the client's identity
exposes him to possible investigation and sanction by government agencies. The Court
held:

The facts of the instant case bring it squarely within that exception
to the general rule. Here money was received by the government,
paid by persons who thereby admitted they had not paid a
sufficient amount in income taxes some one or more years in the
past. The names of the clients are useful to the government for but
one purpose to ascertain which taxpayers think they were
delinquent, so that it may check the records for that one year or
several years. The voluntary nature of the payment indicates a
belief by the taxpayers that more taxes or interest or penalties are
due than the sum previously paid, if any. It indicates a feeling of
guilt for nonpayment of taxes, though whether it is criminal guilt is
undisclosed. But it may well be the link that could form the chain of
testimony necessary to convict an individual of a federal crime.
Certainly the payment and the feeling of guilt are the reasons the
attorney here involved was employed to advise his clients what,
under the circumstances, should be done. 43
Apart from these principal exceptions, there exist other situations which could qualify as
exceptions to the general rule.
For example, the content of any client communication to a lawyer lies within the
privilege if it is relevant to the subject matter of the legal problem on which the client
seeks legal assistance. 44 Moreover, where the nature of the attorney-client relationship
has been previously disclosed and it is the identity which is intended to be confidential,
the identity of the client has been held to be privileged, since such revelation would
otherwise result in disclosure of the entire transaction. 45
Summarizing these exceptions, information relating to the identity of a client may fall
within the ambit of the privilege when the client's name itself has an independent
significance, such that disclosure would then reveal client confidences. 46

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The circumstances involving the engagement of lawyers in the case at bench,

therefore, clearly reveal that the instant case falls under at least two exceptions to the
general rule. First, disclosure of the alleged client's name would lead to establish said
client's connection with the very fact in issue of the case, which is privileged information,
because the privilege, as stated earlier, protects the subject matter or the substance
(without which there would be no attorney-client relationship).
The link between the alleged criminal offense and the legal advice or legal service
sought was duly established in the case at bar, by no less than the PCGG itself. The key
lies in the three specific conditions laid down by the PCGG which constitutes petitioners'
ticket to non-prosecution should they accede thereto:
(a) the disclosure of the identity of its clients;
(b) submission of documents
relationship; and

substantiating

the lawyer-client

(c) the submission of the deeds of assignment petitioners executed

in favor of their clients covering their respective shareholdings.
From these conditions, particularly the third, we can readily deduce that the clients
indeed consulted the petitioners, in their capacity as lawyers, regarding the financial
and corporate structure, framework and set-up of the corporations in question. In turn,
petitioners gave their professional advice in the form of, among others, the
aforementioned deeds of assignment covering their client's shareholdings.
There is no question that the preparation of the aforestated documents was part and
parcel of petitioners' legal service to their clients. More important, it constituted an
integral part of their duties as lawyers. Petitioners, therefore, have a legitimate fear that
identifying their clients would implicate them in the very activity for which legal advice
had been sought, i.e., the alleged accumulation of ill-gotten wealth in the
aforementioned corporations.
Furthermore, under the third main exception, revelation of the client's name would
obviously provide the necessary link for the prosecution to build its case, where none
otherwise exists. It is the link, in the words of Baird, "that would inevitably form the chain
of testimony necessary to convict the (client) of a . . . crime." 47
An important distinction must be made between a case where a client takes on the
services of an attorney, for illicit purposes, seeking advice about how to go around the
law for the purpose of committing illegal activities and a case where a client thinks he
might have previously committed something illegal and consults his attorney about it.
The first case clearly does not fall within the privilege because the same cannot be
invoked for purposes illegal. The second case falls within the exception because
whether or not the act for which the client sought advice turns out to be illegal, his
name cannot be used or disclosed if the disclosure leads to evidence, not yet in the
hands of the prosecution, which might lead to possible action against him.

These cases may be readily distinguished, because the privilege cannot be invoked or
used as a shield for an illegal act, as in the first example; while the prosecution may not
have a case against the client in the second example and cannot use the attorney
client relationship to build up a case against the latter. The reason for the first rule is that
it is not within the professional character of a lawyer to give advice on the commission
of a crime. 48 The reason for the second has been stated in the cases above discussed
and are founded on the same policy grounds for which the attorney-client privilege, in
general, exists.
In Matter of Shawmut Mining Co., supra, the appellate court therein stated that "under
such conditions no case has ever yet gone to the length of compelling an attorney, at
the instance of a hostile litigant, to disclose not only his retainer, but the nature of the
transactions to which it related, when such information could be made the basis of a
suit against his client." 49 "Communications made to an attorney in the course of any
personal employment, relating to the subject thereof, and which may be supposed to
be drawn out in consequence of the relation in which the parties stand to each other,
are under the seal of confidence and entitled to protection as privileged
communications." 50 Where the communicated information, which clearly falls within
the privilege, would suggest possible criminal activity but there would be not much in
the information known to the prosecution which would sustain a charge except that
revealing the name of the client would open up other privileged information which
would substantiate the prosecution's suspicions, then the client's identity is so inextricably
linked to the subject matter itself that it falls within the protection. The Baird exception,
applicable to the instant case, is consonant with the principal policy behind the
privilege, i.e., that for the purpose of promoting freedom of consultation of legal
advisors by clients, apprehension of compelled disclosure from attorneys must be
eliminated. This exception has likewise been sustained inIn re Grand Jury
Proceedings 51 and Tillotson v. Boughner. 52 What these cases unanimously seek to
avoid is the exploitation of the general rule in what may amount to a fishing expedition
by the prosecution.
There are, after all, alternative sources of information available to the prosecutor which
do not depend on utilizing a defendant's counsel as a convenient and readily available
source of information in the building of a case against the latter. Compelling disclosure
of the client's name in circumstances such as the one which exists in the case at bench
amounts to sanctioning fishing expeditions by lazy prosecutors and litigants which we
cannot and will not countenance. When the nature of the transaction would be
revealed by disclosure of an attorney's retainer, such retainer is obviously protected by
the privilege. 53 It follows that petitioner attorneys in the instant case owe their client(s)
a duty and an obligation not to disclose the latter's identity which in turn requires them
to invoke the privilege.
In fine, the crux of petitioner's objections ultimately hinges on their expectation that if
the prosecution has a case against their clients, the latter's case should be built upon
evidence painstakingly gathered by them from their own sources and not from
compelled testimony requiring them to reveal the name of their clients, information
which unavoidably reveals much about the nature of the transaction which may or
may not be illegal. The logical nexus between name and nature of transaction is so
intimate in this case that it would be difficult to simply dissociate one from the other. In
this sense, the name is as much "communication" as information revealed directly about

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the transaction in question itself, a communication which is clearly and distinctly

privileged. A lawyer cannot reveal such communication without exposing himself to
charges of violating a principle which forms the bulwark of the entire attorney-client
relationship.
The uberrimei fidei relationship between a lawyer and his client therefore imposes a
strict liability for negligence on the former. The ethical duties owing to the client,
including confidentiality, loyalty, competence, diligence as well as the responsibility to
keep clients informed and protect their rights to make decisions have been zealously
sustained. In Milbank, Tweed, Hadley and McCloy v. Boon, 54the US Second District
Court rejected the plea of the petitioner law firm that it breached its fiduciary duty to its
client by helping the latter's former agent in closing a deal for the agent's benefit only
after its client hesitated in proceeding with the transaction, thus causing no harm to its
client. The Court instead ruled that breaches of a fiduciary relationship in any context
comprise a special breed of cases that often loosen normally stringent requirements of
causation and damages, and found in favor of the client.
To the same effect is the ruling in Searcy, Denney, Scarola, Barnhart, and Shipley
P.A. v. Scheller 55 requiring strict obligation of lawyers vis-a-vis clients. In this case, a
contingent fee lawyer was fired shortly before the end of completion of his work, and
sought payment quantum meruit of work done. The court, however, found that the
lawyer was fired for cause after he sought to pressure his client into signing a new fee
agreement while settlement negotiations were at a critical stage. While the client found
a new lawyer during the interregnum, events forced the client to settle for less than
what was originally offered. Reiterating the principle of fiduciary duty of lawyers to
clients in Meinhard v. Salmon 56 famously attributed to Justice Benjamin Cardozo that
"Not honesty alone, but the punctilioof an honor the most sensitive, is then the standard
of behavior," the US Court found that the lawyer involved was fired for cause, thus
deserved no attorney's fees at all.
The utmost zeal given by Courts to the protection of the lawyer-client confidentiality
privilege and lawyer's loyalty to his client is evident in the duration of the protection,
which exists not only during the relationship, but extends even after the termination of
the relationship. 57
Such are the unrelenting duties required of lawyers vis-a-vis their clients because the
law, which the lawyers are sworn to uphold, in the words of Oliver Wendell Holmes, 58 ". .
. is an exacting goddess, demanding of her votaries in intellectual and moral discipline."
The Court, no less, is not prepared to accept respondents' position without denigrating
the noble profession that is lawyering, so extolled by Justice Holmes in this wise:
Every calling is great when greatly pursued. But what other gives
such scope to realize the spontaneous energy of one's soul? In
what other does one plunge so deep in the stream of life so
share its passions its battles, its despair, its triumphs, both as witness
and actor? . . . But that is not all. What a subject is this in which we
are united this abstraction called the Law, wherein as in a magic
mirror, we see reflected, not only in our lives, but the lives of all men
that have been. When I think on this majestic theme by eyes
dazzle. If we are to speak of the law as our mistress, we who are

here know that she is a mistress only to be won with sustained and
lonely passion only to be won by straining all the faculties by
which man is likened to God.
We have no choice but to uphold petitioners' right not to reveal the identity of their
clients under pain of the breach of fiduciary duty owing to their clients, because the
facts of the instant case clearly fall within recognized exceptions to the rule that the
client's name is not privileged information.
If we were to sustain respondent PCGG that the lawyer-client confidential privilege
under the circumstances obtaining here does not cover the identity of the client, then it
would expose the lawyers themselves to possible litigation by their clients in view of the
strict fiduciary responsibility imposed on them in the exercise of their duties. LLphil
The complaint in Civil Case No. 0033 alleged that the defendants therein, including
herein petitioners and Eduardo Cojuangco, Jr. conspired with each other in setting up
through the use of coconut levy funds the financial and corporate framework and
structures that led to the establishment of UCPB, UNICOM and others and that through
insidious means and machinations, ACCRA, using its wholly-owned investment arm,
ACCRA Investments Corporation, became the holder of approximately fifteen million
shares representing roughly 3.3% of the total capital stock of UCPB as of 31 March 1987.
The PCGG wanted to establish through the ACCRA lawyers that Mr. Cojuangco is their
client and it was Cojuangco who furnished all the monies to the subscription payment;
hence, petitioners acted as dummies, nominees and/or agents by allowing themselves,
among others, to be used as instrument in accumulating ill-gotten wealth through
government concessions, etc., which acts constitute gross abuse of official position and
authority, flagrant breach of public trust, unjust enrichment, violation of the Constitution
and laws of the Republic of the Philippines.
By compelling petitioners, not only to reveal the identity of their clients, but worse, to
submit to the PCGG documents substantiating the client-lawyer relationship, as well as
deeds of assignment petitioners executed in favor of its clients covering their respective
shareholdings, the PCGG would exact from petitioners a link, "that would inevitably form
the chain of testimony necessary to convict the (client) of a crime."
III
In response to petitioners' last assignment of error, respondents allege that the private
respondent was dropped as party defendant not only because of his admission that he
acted merely as a nominee but also because of his undertaking to testify to such facts
and circumstances "as the interest of truth may require, which includes . . . the identity of
the principal." 59
First, as to the bare statement that private respondent merely acted as a lawyer and
nominee, a statement made in his out-of-court settlement with the PCGG, it is sufficient
to state that petitioners have likewise made the same claim not merely out-of-court but
also in their Answer to plaintiff's Expanded Amended Complaint, signed by counsel,
claiming that their acts were made in furtherance of "legitimate lawyering." 60 Being
"similarly situated" in this regard, public respondents must show that there exist other

125

conditions and circumstances which would warrant their treating the private
respondent differently from petitioners in the case at bench in order to evade a
violation of the equal protection clause of the Constitution.
To this end, public respondents contend that the primary consideration behind their
decision to sustain the PCGG's dropping of private respondent as a defendant was his
promise to disclose the identities of the clients in question. However, respondents failed
to show and absolutely nothing exists in the records of the case at bar that private
respondent actually revealed the identity of his client(s) to the PCGG. Since the
undertaking happens to be the leitmotif of the entire arrangement between Mr. Roco
and the PCGG, an undertaking which is so material as to have justified PCGG's special
treatment exempting the private respondent from prosecution, respondent
Sandiganbayan should have required proof of the undertaking more substantial than a
"bare assertion" that private respondent did indeed comply with the undertaking.
Instead, as manifested by the PCGG, only three documents were submitted for the
purpose, two of which were mere requests for re-investigation and one simply disclosed
certain clients which petitioners (ACCRA lawyers) were themselves willing to reveal.
These were clients to whom both petitioners and private respondent rendered legal
services while all of them were partners at ACCRA, and were not the clients which the
PCGG wanted disclosed for the alleged questioned transactions. 61
To justify the dropping of the private respondent from the case or the filing of the suit in
the respondent court without him, therefore, the PCGG should conclusively show that
Mr. Roco was treated as a species apart from the rest of the ACCRA lawyers on the
basis of a classification which made substantial distinctions based on real
differences. No such substantial distinctions exist from the records of the case at bench,
in violation of the equal protection clause.
The equal protection clause is a guarantee which provides a wall of protection against
uneven application of statutes and regulations. In the broader sense, the guarantee
operates against uneven application of legal norms so that all persons under similar
circumstances would be accorded the same treatment. 62 Those who fall within a
particular class ought to be treated alike not only as to privileges granted but also as to
the liabilities imposed.
. . . What is required under this constitutional guarantee is the uniform operation of legal
norms so that all persons under similar circumstances would be accorded the same
treatment both in the privileges conferred and the liabilities imposed. As was noted in a
recent decision: 'Favoritism and undue preference cannot be allowed. For the principle
is that equal protection and security shall be given to every person under
circumstances, which if not identical are analogous. If law be looked upon in terms of
burden or charges, those that fall within a class should be treated in the same fashion,
whatever restrictions cast on some in the group equally binding the rest. 63
We find that the condition precedent required by the respondent PCGG of the
petitioners for their exclusion as parties-defendants in PCGG Case No. 33 violates the
lawyer-client confidentiality privilege. The condition also constitutes a transgression by
respondents Sandiganbayan and PCGG of the equal protection clause of the
Constitution. 64 it is grossly unfair to exempt one similarly situated litigant from
prosecution without allowing the same exemption to the others. Moreover, the PCGG's

demand not only touches upon the question of the identity of their clients but also on
documents related to the suspected transactions, not only in violation of the attorneyclient privilege but also of the constitutional right against self-incrimination. Whichever
way one looks at it, this is a fishing expedition, a free ride at the expense of such rights.
An argument is advanced that the invocation by petitioners of the privilege of attorneyclient confidentiality at this stage of the proceedings is premature and that they should
wait until they are called to testify and examine as witnesses as to matters learned in
confidence before they can raise their objections. But petitioners are not mere
witnesses. They are co-principals in the case for recovery of alleged ill-gotten wealth.
They have made their position clear from the very beginning that they are not willing to
testify and they cannot be compelled to testify in view of their constitutional righ t
against self-incrimination and of their fundamental legal right to maintain inviolate the
privilege of attorney-client confidentiality.
It is clear then that the case against petitioners should never be allowed to take its full
course in the Sandiganbayan. Petitioners should not be made to suffer the effects of
further litigation when it is obvious that their inclusion in the complaint arose from a
privileged attorney-client relationship and as a means of coercing them to disclose the
identities of their clients. To allow the case to continue with respect to them when this
Court could nip the problem in the bud at this early opportunity would be to sanction
an unjust situation which we should not here countenance. The case hangs as a real
and palpable threat, a proverbial Sword of Damocles over petitioners' heads. It should
not be allowed to continue a day longer.
While we are aware of respondent PCGG's legal mandate to recover ill-gotten wealth,
we will not sanction acts which violate the equal protection guarantee and the right
against self-incrimination and subvert the lawyer-client confidentiality privilege. LibLex
WHEREFORE, IN VIEW OF THE FOREGOING, the Resolutions of respondent
Sandiganbayan (First Division) promulgated on March 18, 1992 and May 21, 1992 are
hereby ANNULLED and SET ASIDE. Respondent Sandiganbayan is further ordered to
execute petitioners Teodoro D. Regala, Edgardo J. Angara, Avelino V. Cruz, Jose C.
Conception, Victor P. Lazatin, Eduardo U. Escueta and Paraja G. Hayudini as partiesdefendants in SB Civil Case No. 0033 entitled "Republic of the Philippines v. Eduardo
Cojuangco, Jr., et al."
SO ORDERED.

23- People v. Judge Ayson, G.R. No. 85215, 7 July 1989

FIRST DIVISION
[G.R. No. 85215. July 7, 1989.]

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THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. JUDGE RUBEN

AYSON, Presiding over Branch 6, Regional Trial Court, First Judicial
Region, Baguio City, and FELIPE RAMOS,respondents.
Nelson Lidua for private respondent.
DECISION
NARVASA, J p:
What has given rise to the controversy at bar is the equation by the respondent Judge
of the right of an individual not to "be compelled to be a witness against
himself" accorded by Section 20, Article III of the Constitution, with the right of any
person "under investigation for the commission of an offense . . . to remain silent and to
counsel, and to be informed of such right," granted by the same provision. The relevant
facts are not disputed.
Private respondent Felipe Ramos was a ticket freight clerk of the Philippine Airlines (PAL),
assigned at its Baguio City station. It having allegedly come to light that he was involved
in irregularities in the sales of plane tickets, 1 the PAL management notified him of an
investigation to be conducted into the matter of February 9, 1986. That investigation
was scheduled in accordance with PAL's Code of Conduct and Discipline, and the
Collective Bargaining Agreement signed by it with the Philippine Airlines Employees'
Association (PALEA) to which Ramos pertained. 2
On the day before the investigation, February 8, 1986, Ramos gave to his superiors a
handwritten note 3 reading as follows:
"2-8-86
TO WHOM IT MAY CONCERN:
THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS WILLING
TO SETTLE IRREGULARITIES ALLEGEDLY CHARGED VS. HIM IN
THE AMT. OF P76,000 (APPROX.) SUBJECT TO CONDITIONS AS
MAY BE IMPOSED BY PAL ON OR BEFORE 1700/9 FEB 86.
(s) Felipe Ramos
(Printed) F. Ramos"
At the investigation of February 9, 1986, conducted by the PAL Branch Manager in
Baguio City, Edgardo R. Cruz, in the presence of Station Agent Antonio Ocampo, Ticket
Freight Clerk Rodolfo Quitasol, and PALEA Shop Steward Cristeta Domingo, Felipe
Ramos was informed "of the finding of the Audit Team." Thereafter, his answers in
response to questions by Cruz, were taken down in writing. Ramos' answers were to the
effect inter alia that he had not indeed made disclosure of the tickets mentioned in the
Audit Team's findings, that the proceeds had been "misused" by him, that although he
had planned on paying back the money, he had been prevented from doing so,

"perhaps (by) shame," that he was still willing to settle his obligation, and proferred a
"compromise . . . to pay on staggered basis, (and) the amount would be known in the
next investigation;" that he desired the next investigation to be at the same place,
"Baguio CTO," and that he should be represented therein by "Shop stewardees ITR
Nieves Blanco;" and that he was willing to sign his statement (as he in fact afterwards
did). 4 How the investigation turned out is not dealt with the parties at all; but it would
seem thatno compromise agreement was reached much less consummated.
About two (2) months later, an information was filed against Felipe Ramos charging him
with the crime of estafa allegedly committed in Baguio City during the period from
March 12, 1986 to January 29, 1987. In that place and during that time, according to
the indictment, 5 he (Ramos)
". . . with unfaithfulness and/or abuse of confidence, did then and
there willfully . . . defraud the Philippine Airlines, Inc., Baguio Branch,
. . . in the following manner, to wit: said accused . . . having been
entrusted with and received in trust fare tickets of passengers for
one-way-trip and round-trip in the total amount of P76,700.65, with
the express obligation to remit all the proceeds of the sale,
account for it and/or to return those unsold, . . . once in possession
thereof and instead of complying with his obligation, with intent to
defraud, did then and there . . . misappropriate, misapply and
convert the value of the tickets in the sum of P76,700.65 and in
spite of repeated demands, . . . failed and refused to make good
his obligation, to the damage and prejudice of the offended party
. . ."

On arraignment on this charge, Felipe Ramos entered a plea of "Not Guilty," and trial
thereafter ensued. The prosecution of the case was undertaken by lawyers of PAL under
the direction and supervision of the Fiscal.
At the close of the people's case, the private prosecutors made a written offer of
evidence dated June 21, 1988, 6 which included "the (above mentioned) statement of
accused Felipe J. Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office,"
which had been marked as Exhibit A, as well as his "handwritten admission . . . given on
February 8, 1986," also above referred to, which had been marked as Exhibit K.
The defendant's attorneys filed "Objections/Comments to Plaintiffs
Evidence." 7Particularly as regards the peoples' Exhibit A, the objection was that "said
document, which appears to be a confession, was taken without the accused being
represented by a lawyer." Exhibit K was objected to "for the same reasons interposed
under Exhibits 'A' and 'J.' "
By Order dated August 9, 1988, 8 the respondent judge admitted all the exhibits "as part
of the testimony of the witnesses who testified in connection therewith and for whatever
they are worth," except Exhibits A and K, which it rejected. His Honor declared Exhibit A
"inadmissible in evidence, it appearing that it is the statement of accused Felipe Ramos

127

taken on February 9, 1986 at PAL Baguio City Ticket Office, in an investigation

conducted by the Branch Manager . . . since it does not appear that the accused was
reminded of this constitutional rights to remain silent and to have counsel, and that
when he waived the same and gave his statement, it was with the assistance actually
of a counsel." He also declared inadmissible "Exhibit K, the handwritten admission made
by accused Felipe J. Ramos, given on February 8, 1986 . . . for the same reason stated in
the exclusion of Exhibit 'A' since it does not appear that the accused was assisted by
counsel when he made said admission."
The private prosecutors filed a motion for reconsideration. 9 It was denied, by Order
dated September 14, 1988. 10 In justification of said Order, respondent Judge invoked
this Court's rulings in Morales, Jr. v. Juan Ponce Enrile, et al., 121 SCRA 538, Peo. v. Galit,
135 SCRA 467, Peo. v. Sison, 142 SCRA 219, and Peo. v. Decierdo, 149 SCRA 496, among
others, to the effect that "in custodial investigations the right to counsel may be waived
but the waiver shall not be valid unless made with the assistance of counsel," and the
explicit precept in thepresent Constitution that the rights in custodial investigation
"cannot be waived except in writing and in the presence of counsel." He pointed out
that the investigation of Felipe Ramos at the PAL Baguio Station was one "for the offense
of allegedly misappropriating the proceeds of the tickets issued to him' and therefore
clearly fell "within the coverage of the constitutional provisions;" and the fact that
Ramos was not detained at the time, or the investigation was administrative in
character could not operate to except the case "from the ambit of the constitutional
provision cited."

These Orders, of August 9, 1988 and September 14, 1988 are now assailed in the petition
for certiorari and prohibition at bar, filed in this Court by the private prosecutors in the
name of the People of the Philippines. By Resolution dated October 26, 1988, the Court
required Judge Ayson and Felipe Ramos to comment on the petition, and directed
issuance of a "TEMPORARY RESTRAINING ORDER . . . ENJOINING the respondents from
proceeding further with the trial and/or hearing of Criminal Case No. 3488-R (People . . .
vs. Felipe Ramos), including the issuance of any order, decision or judgment in the
aforesaid case or on any matter in relation to the same case, now pending before the
Regional Trial Court of Baguio City, Br. 6, First Judicial Region." The Court also
subsequently required the Solicitor General to comment on the petition. The comments
of Judge Ayson, Felipe Ramos, and the Solicitor General have all been filed. The Solicitor
General has made common cause with the petitioner and prays "that the petition be
given due course and thereafter judgment be rendered setting aside respondent
Judge's Orders . . . and ordering him to admit Exhibits 'A' and 'K' of the prosecution." The
Solicitor General has thereby removed whatever impropriety might have attended the
institution of the instant action in the name of the People of the Philippines by
lawyers de parte of the offended party in the criminal action in question.
The Court deems that there has been full ventilation of the issue of whether or not it
was grave abuse of discretion for respondent Judge to have excluded the People's
Exhibits A and K. It will now proceed to resolve it.

At the core of the controversy is Section 20, Article IV of the 1973 Constitution, 11to
which respondent Judge has given a construction that is disputed by the People. The
section reads as follows:
SEC. 20. No person shall be compelled to be a witness against
himself. Any person under investigation for the commission of an
offense shall have the right to remain silent and to counsel, and to
be informed of such right. No force, violence, threat, intimidation,
or any other means which vitiates the free will shall be used against
him. Any confession obtained in violation of this section shall be
inadmissible in evidence.
It should at once be apparent that there are two (2) rights, or sets of rights, dealth with in
the section, namely:
1) the right against self-incrimination i.e., the right of a person not to be compelled to
be a witness against himself set out in the first sentence, which is a verbatim
reproduction of Section 18, Article III of the 1935 Constitution, and is similar to that
accorded by the Fifth Amendment of the American Constitution, 12and
2) the rights of a person in custodial interrogation, i.e., the rights of every suspect "under
investigation for the commission of an offense."

Parenthetically, the 1987 Constitution indicates much more clearly the individuality and
disparateness of these rights. It has placed the rights in separate sections. The right
against self-incrimination, "No person shall be compelled to be a witness against
himself," is now embodied in Section 17, Article III of the 1987 Constitution. The rights of a
person in custodial interrogation, which have been made more explicit, are now
contained in Section 12 of the same Article III. 13

Right Against Self-Incrimination

The first right, against self-incrimination, mentioned in Section 20, Article IV of the1973
Constitution, is accorded to every person who gives evidence, whether voluntarily or
under compulsion of subpoena, in any civil, criminal, or administrative
proceeding. 14 The right is NOT to "be compelled to be a witness against himself."
The precept set out in that first sentence has a settled meaning. 15 It prescribes an
"option of refusal to answer incriminating questions and not a prohibition of inquiry." 16 It
simply secures to a witness, whether he be a party or not, the right to refuse to answer
any particular incriminatory question, i.e., one the answer to which has a tendency to
incriminate him for some crime. However, the right can be claimed only when the
specific question, incriminatory in character, is actually put to the witness. It cannot be
claimed at any other time. It does not give a witness the right to disregard a subpoena,
to decline to appear before the court at the time appointed, or to refuse to testify

128

altogether. The witness receiving asubpoena must obey it, appear as required, take the
stand, be sworn and answer questions. It is only when a particular question is addressed
to him, the answer to which may incriminate him for some offense, that he may refuse to
answer on the strength of the constitutional guaranty.
That first sentence of Section 20, Article IV of the 1973 Constitution does not impose on
the judge, or other officer presiding over a trial, hearing or investigation, any affirmative
obligation to advise a witness of his right against self-incrimination. It is a right that a
witness knows or should know, in accordance with the well known axiom that every one
is presumed to know the law, that ignorance of the law excuses no one. Furthermore, in
the very nature of things, neither the judge nor the witness can be expected to know in
advance the character or effect of a question to be put to the latter. 17
The right against self-incrimination is not self-executing or automatically operational. It
must be claimed. If not claimed by or in behalf of the witness, the protection does not
come into play. It follows that the right may be waived, expressly, or impliedly, as by a
failure to claim it at the appropriate time. 18
Rights in Custodial Interrogation
Section 20, Article IV of the 1973 Constitution also treats of a second right, or better said,
group of rights. These rights apply to persons "under investigation for the commission of
an offense," i.e., "suspects" under investigation by police authorities; and this is what
makes these rights different from that embodied in the first sentence, that against selfincrimination which, as aforestated, indiscriminately applies to any person testifying in
any proceeding, civil, criminal, or administrative.
This provision granting explicit rights to persons under investigation for an offense was not
in the 1935 Constitution. It is avowedly derived from the decision of the U.S. Supreme
Court in Miranda v. Arizona, 19 a decision described as an "earthquake in the world of
law enforcement." 20
Section 20 states that whenever any person is "under investigation for the commission of
an offense"
1) he shall have the right to remain silent and to counsel, and to be
informed of each right, 21
2) nor force, violence, threat, intimidation, or any other means
which vitiates the free will shall be used against him; 22 and
3) any confession obtained in violation of . . . (these rights shall be
inadmissible in evidence. 23
In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a
person in police custody, "in-custody interrogation" being regarded as the
commencement of an adversary proceeding against the suspect. 24

He must be warned prior to any questioning that he has the right to

remain silent, that anything he says can be used against him in a
court of law, that he has the right to the presence of an attorney,
and that if he cannot afford an attorney one will be appointed for
him prior to any questioning if he so desires. Opportunity to exercise
those rights must be afforded to him throughout the interrogation.
After such warnings have been given, such opportunity afforded
him, the individual may knowingly and intelligently waive these
rights and agree to answer or make a statement. But unless and
until such warnings and waivers are demonstrated by the
prosecution at the trial, no evidence obtained as a result of
interrogation can be used against him.
The objective is to prohibit "incommunicado interrogation of individuals in a policedominated atmosphere, resulting in self-incriminating statement without full
warnings of constitutional rights." 25
The rights above specified, to repeat, exist only in "custodial interrogations," or "incustody interrogation of accused persons." 26 And, as this Court has already stated, by
custodial interrogation is meant "questioning initiated by law enforcement officers after
a person has been taken into custody or otherwise deprived of his freedom of action in
any significant way." 27 The situation contemplated has also been more precisely
described by this Court. 28
. . . After a person is arrested and his custodial investigation
begins a confrontation arises which at best may be termed
unequal. The detainee is brought to an army camp or
police headquarters and there questioned and "crossexamined" not only by one but as many investigators as
may be necessary to break down his morale. He finds
himself in strange and unfamiliar surroundings, and every
person he meets he considers hostile to him. The
investigators are well-trained and seasoned in their work.
They employ all the methods and means that experience
and study have taught them to extract the truth, or what
may pass for it, out of the detainee. Most detainees are
unlettered and are not aware of their constitutional rights.
And even if they were, the intimidating and coercive
presence of the officers of the law in such an atmosphere
overwhelms them into silence. Section 20 of the Bill of Rights
seeks to remedy this imbalance."
Not every statement made to the police by a person involved in some crime is within
the scope of the constitutional protection. If not made "under custodial interrogation,"
or "under investigation for the commission of an offense," the statement is not protected.
Thus, in one case, 29 where a person went to a police precinct and before any sort of
investigation could be initiated, declared that he was giving himself up for the killing of
an old woman because she was threatening to kill him by barang, or witchcraft, this
Court ruled that such a statement was admissible, compliance with the constitutional
procedure on custodial interrogation not being exigible under the circumstances.

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Rights of Defendant in Criminal Case

As Regards Giving of Testimony
It is pertinent at this point to inquire whether the rights just discussed, i.e., (1) that against
self-incrimination and (2) those during custodial interrogation apply to persons under
preliminary investigation or already charged in court for a crime.
It seems quite evident that a defendant on trial or under preliminary investigation is not
under custodial interrogation. His interrogation by the police, if any there had been
would already have been ended at the time of the filing of the criminal case in court (or
the public prosecutors' office). Hence, with respect to a defendant in a criminal case
already pending in court (or the public prosecutor's office), there is no occasion to
speak of his right while under "custodial interrogation" laid down by the second and
subsequent sentences of Section 20, Article IV of the 1973 Constitution, for the obvious
reason that he is no longer under "custodial interrogation."
But unquestionably, the accused in court (or undergoing preliminary investigation
before the public prosecutor), in common with all other persons, possesses the right
against self-incrimination set out in the first sentence of Section 20 Article IV of the 1973
Constitution, i.e., the right to refuse to answer a specific incriminatory question at the
time that it is put to him. 30
Additionally, the accused in a criminal case in court has other rights in the matter of
giving testimony or refusing to do so. An accused "occupies a different tier of protection
from an ordinary witness." Under the Rules of Court, in all criminal prosecutions the
defendant is entitled among others
1) to be exempt from being a witness against himself, 31 and
2) to testify as witness in his own behalf; but if he offers himself as a witness he may be
cross-examined as any other witness; however, his neglect or refusal to be a witness shall
not in any manner prejudice or be used against him. 32
The right of the defendant in a criminal case "to be exempt from being a witness against
himself" signifies that he cannot be compelled to testify or produce evidence in the
criminal case in which he is the accused, or one of the accused. He cannot be
compelled to do so even by subpoena or other process or order of the Court. He
cannot be required to be a witness either for the prosecution, or for a co-accused, or
even for himself. 33 In other words unlike an ordinary witness (or a party in a civil
action) who may be compelled to testify by subpoena, having only the right to refuse to
answer a particular incriminatory question at the time it is put to him the defendant in
a criminal action can refuse to testify altogether. He can refuse to take the witness
stand, be sworn, answer any question. 34 And, as the law categorically states, "his
neglect or refusal to be a witness shall not in any manner prejudice or be used against
him." 35
If he should wish to testify in his own behalf, however, he may do so. This is his right. But if
he does testify, then he "may be cross-examined as any other witness." He may be cross-

examined as to any matters stated in his direct examination, or connected

therewith. 36 He may not on cross-examination refuse to answer any question on the
ground that the answer that he will give, or the evidence he will produce, would have a
tendency to incriminate him for the crime with which he is charged.
It must however be made clear that if the defendant in a criminal action be asked a
question which might incriminate him, not for the crime with which he is charged, but
for some other crime, distinct from that of which he is accused, he may decline to
answer that specific question, on the strength of the right against self-incrimination
granted by the first sentence of Section 20, Article IV of the 1973 Constitution (now
Section 17 of the 1987 Constitution). Thus, assuming that in a prosecution for murder, the
accused should testify in his behalf, he may not on cross-examination refuse to answer
any question on the ground that he might be implicated in that crime of murder; but he
may decline to answer any particular question which might implicate him for a different
and distinct offense, say,estafa.
In fine, a person suspected of having committed a crime and subsequently charged
with its commission in court, has the following rights in that matter of his testifying or
producing evidence, to wit:
1) BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for preliminary
investigation), but after having been taken into custody or otherwise deprived of his
liberty in some significant way, and on being interrogated by the police: the continuing
right to remain silent and to counsel, and to be informed thereof, not to be subjected to
force, violence, threat, intimidation or any other means which vitiates the free will; and
to have evidence obtained in violation of these rights rejected; and
2) AFTER THE CASE IS FILED IN COURT 37
a) to refuse to be a witness;
b) not to have any prejudice whatsoever result to him by such refusal;
c) to testify to his own behalf, subject to cross-examination by the
prosecution;
d) WHILE TESTIFYING, to refuse to answer a specific question which tends
to incriminate him for some time other than that for which he is prosecuted.

It should by now be abundantly apparent that respondent Judge has misapprehended

the nature and import of the disparate rights set forth in Section 20, Article IV of the 1973
Constitution. He has taken them as applying to the same juridical situation, equating
one with the other. In so doing, he has grossly erred. To be sure, His Honor sought to
substantiate his thesis by arguments he took to be cogent and logical. The thesis was
however so far divorced from the actual and correct state of the constitutional and
legal principles involved as to make application of said thesis to the case before him
tantamount to totally unfounded, whimsical or capricious exercise of power. His Orders

130

were thus rendered with grave abuse of discretion. They should be as they are hereby,
annulled and set aside.
It is clear from the undisputed facts of this case that Felipe Ramos was not in any sense
under custodial interrogation, as the term should be properly understood, prior to and
during the administrative inquiry into the discovered irregularities in ticket sales in which
he appeared to have had a hand. The constitutional rights of a person under custodial
interrogation under Section 20, Article IV of the 1973 Constitution did not therefore come
into play, were of no relevance to the inquiry. It is also clear, too, that Ramos had
voluntarily answered questions posed to him on the first day of the administrative
investigation, February 9, 1986 and agreed that the proceedings should be recorded,
the record having thereafter been marked during the trial of the criminal action
subsequently filed against him as Exhibit A, just as it is obvious that the note (later
marked as Exhibit K) that he sent to his superiors on February 8, 1986, the day before the
investigation, offering to compromise his liability in the alleged irregularities, was a free
and even spontaneous act on his part. They may not be excluded on the ground that
the so-called "Miranda rights" had not been accorded to Ramos.
His Honor adverts to what he perceives to be the "greater danger . . (of) the violation of
the right of any person against self-incrimination when the investigation is conducted by
the complaining parties, complaining companies, or complaining employers because
being interested parties, unlike the police agencies who have no propriety or pecuniary
interest to protect, they may in their overeagerness or zealousness bear heavily on their
hapless suspects, whether employees or not, to give statements under an atmosphere
of moral coercion, undue ascendancy, and undue influence." It suffices to draw
attention to the specific and peremptory requirement of the law that disciplinary
sanctions may not be imposed on any employee by his employer until and unless the
employee has been accorded due process, by which is meant that the latter must be
informed of the offenses ascribed to him and afforded adequate time and opportunity
to explain his side. The requirement entails the making of statements, oral or written, by
the employee under such administrative investigation in his defense, with opportunity to
solicit the assistance of counsel, or his colleagues and friends. The employee may, of
course, refuse to submit any statement at the investigation, that is his privilege. But if he
should opt to do so, in his defense to the accusation against him, it would be absurd to
reject his statements, whether at the administrative investigation, or at a subsequent
criminal action brought against him, because he had not been accorded, prior to his
making and presenting them, his "Miranda rights" (to silence and to counsel and to be
informed thereof, etc.) which, to repeat, are relevant only in custodial investigations.
Indeed, it is self-evident that the employee's statements, whether called "position
paper," "answer," etc., are submitted by him precisely so that they may be admitted
and duly considered by the investigating officer or committee, in negation or mitigation
of his liability.
Of course the possibility cannot be discounted that in certain instances the judge's
expressed apprehensions may be realized, that violence or intimidation, undue pressure
or influence be brought to bear on an employee under investigation or for that
matter, on a person being interrogated by another whom he has supposedly offended.
In such an event, any admission or confession wrung from the person under
interrogation would be inadmissible in evidence, on proof of the vice or defect vitiating
consent, not because of a violation of Section 20, Article IV of the 1973 Constitution, but

simply on the general, incontestable proposition that involuntary or coerced statements

may not in justice be received against the makers thereof, and really should not be
accorded any evidentiary value at all.
WHEREFORE, the writ of certiorari is granted annulling and setting aside the Orders of the
respondent Judge in Criminal Case No. 3488-R, dated August 9, 1988 and September
14, 1988, and he is hereby ordered to admit in evidence Exhibits "A" and "K" of the
prosecution in said Criminal Case No. 3488-R, and thereafter proceed with the trial and
adjudgment thereof. The temporary restraining order of October 26, 1988 having
become functus oficio, is now declared of no further force and effect.
Cruz, Gancayco, Grio-Aquino and Medialdea, JJ., concur.
||| (People v. Ayson, G.R. No. 85215, [July 7, 1989], 256 PHIL 671-690)

24- Pascual v. Medical Board of Examiners, G.R. No. L-25018, 26 May 1969

EN BANC
[G.R. No. L-25018. May 26, 1969.]
ARSENIO PASCUAL, JR., petitioner-appellee, vs. BOARD OF MEDICAL
EXAMINERS, respondent-appellant, SALVADOR GATBONTON and
ENRIQUETA GATBONTON, intervenors-appellants.
Conrado B. Enriquez for petitioner-appellee.
Solicitor General Arturo A. Alafriz, Assistant Solicitor General Antonio A.
Torresand Solicitor Pedro A. Ramirez for respondent-appellant.
Bausa, Ampil & Suarez for intervenors-appellants.
DECISION
FERNANDO, J p:
The broad, all-embracing sweep of the self-incrimination clause, 1 whenever
appropriately invoked, has been accorded due recognition by this Court ever since the
adoption of the Constitution. 2 Bermudez v. Castillo, 3 decided in 1937, was quite
categorical. As we there stated: "This Court is of the opinion that in order that the
constitutional provision under consideration may prove to be a real protection and not
a dead letter, it must be given a liberal and broad interpretation favorable to the
person invoking it." As phrased by Justice Laurel in his concurring opinion: "The provision,
as doubtless it was designed, would be construed with the utmost liberality in favor of
the right of the individual intended to be served." 4

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Even more relevant, considering the precise point at issue, is the recent case of
Cabal v. Kapunan, 5 where it was held that a respondent in an administrative
proceeding under the Anti-Graft Law 6 cannot be required to take the witness stand at
the instance of the complainant. So it must be in this case, where petitioner was
sustained by the lower court in his plea that he could not be compelled to be the first
witness of the complainants, he being the party proceeded against in an administrative
charge for malpractice. That was a correct decision; we affirm it on appeal.

Arsenio Pascual, Jr., petitioner-appellee, filed on February 1, 1965 with the Court of First
Instance of Manila an action for prohibition with prayer for preliminary injunction against
the Board of Medical Examiners, now respondent-appellant. It was alleged therein that
at the initial hearing of an administrative case 7 for alleged immorality, counsel for
complainants announced that he would present as his first witness herein petitionerappellee, who was the respondent in such malpractice charge. Thereupon, petitionerappellee, through counsel, made of record his objection, relying on the constitutional
right to be exempt from being a witness against himself. Respondent-appellant, the
Board of Examiners, took note of such a plea, at the same time stating that at the next
scheduled hearing, on February 12, 1965, petitioner-appellee would be called upon to
testify as such witness, unless in the meantime he could secure a restraining order from a
competent authority.
Petitioner-appellee then alleged that in thus ruling to compel him to take the witness
stand, the Board of Examiners was guilty, at the very least, of grave abuse of discretion
for failure to respect the constitutional right against self-incrimination, the administrative
proceeding against him, which could result in forfeiture or loss of a privilege, being
quasi-criminal in character. With his assertion that he was entitled to the relief
demanded consisting of perpetually restraining the respondent Board from compelling
him to testify as witness for his adversary and his readiness or his willingness to put a
bond, he prayed for a writ of preliminary injunction and after a hearing or trial, for a writ
of prohibition.
On February 9, 1965, the lower court ordered that a writ of preliminary injunction issue
against the respondent Board commanding it to refrain from hearing or further
proceeding with such an administrative case, to await the judicial disposition of the
matter upon petitioner-appellee posting a bond in the amount of P500.00.
The answer of respondent Board, while admitting the facts stressed that it could call
petitioner-appellee to the witness stand and interrogate him, the right against selfincrimination being available only when a question calling for an incriminating answer is
asked of a witness. It further elaborated the matter in the affirmative defenses
interposed, stating that petitioner-appellee's remedy is to object once he is in the
witness stand, for respondent "a plain, speedy and adequate remedy in the ordinary
course of law," precluding the issuance of the relief sought. Respondent Board,
therefore, denied that it acted with grave abuse of discretion.
There was a motion for intervention by Salvador Gatbonton and Enriqueta Gatbonton,
the complainants in the administrative case for malpractice against petitioner-appellee,

asking that they be allowed to file an answer as intervenors. Such a motion was granted
and an answer in intervention was duly filed by them on March 23, 1965 sustaining the
power of respondent Board, which for them is limited to compelling the witness to take
the stand, to be distinguished, in their opinion, from the power to compel a witness to
incriminate himself. They likewise alleged that the right against self- incrimination cannot
be availed of in an administrative hearing.
A decision was rendered by the lower court on August 2, 1965, finding the claim of
petitioner-appellee to be well-founded and prohibiting respondent Board "from
compelling the petitioner to act and testify as a witness for the complainant in said
investigation without his consent and against himself." Hence this appeal both by
respondent Board and intervenors, the Gatbontons. As noted at the outset, we find for
the petitioner-appellee.
1.We affirm the lower court decision on appeal as it does manifest fealty to the principle
announced by us in Cabal v. Kapunan. 8 In that proceeding for certiorari and
prohibition to annul an order of Judge Kapunan, it appeared that an administrative
charge for unexplained wealth having been filed against petitioner under the Anti-Graft
Act, 9 the complainant requested the investigating committee that petitioner be
ordered to take the witness stand, which request was granted. Upon petitioner's refusal
to be sworn as such witness, a charge for contempt was filed against him in the sala of
respondent Judge. He filed a motion to quash and upon its denial, he initiated this
proceeding. We found for the petitioner in accordance with the well-settled principle
that "the accused in a criminal case may refuse, not only to answer incriminatory
questions, but, also, to take the witness stand."
It was noted in the opinion penned by the present Chief Justice that while the matter
referred to an administrative charge of unexplained wealth, with the Anti-Graft Act
authorizing the forfeiture of whatever property a public officer or employee may
acquire, manifestly out of proportion to his salary and his other lawful income, there is
clearly the imposition of a penalty. The proceeding for forfeiture while administrative in
character thus possesses a criminal or penal aspect. The case before us is not dissimilar;
petitioner would be similarly disadvantaged. He could suffer not the forfeiture of
property but the revocation of his license as medical practitioner, for some an even
greater deprivation.
To the argument that Cabal v. Kapunan could thus be distinguished, it suffices to refer
to an American Supreme Court opinion highly persuasive in character. 10 In the
language of Justice Douglas: "We conclude .. that the Self-Incrimination Clause of the
Fifth Amendment has been absorbed in the Fourteenth, that it extends its protection to
lawyers as well as to other individuals, and that it should not be watered down by
imposing the dishonor of disbarment and the deprivation of a livelihood as a price for
asserting it." We reiterate that such a principle is equally applicable to a proceeding
that could possibly result in the loss of the privilege to practice the medical profession.
2.The appeal apparently proceeds on the mistaken assumption by respondent Board
and intervenors-appellants that the constitutional guarantee against self-incrimination
should be limited to allowing a witness to object to questions the answers to which
could lead to a penal liability being subsequently incurred. It is true that one aspect of
such a right, to follow the language of another American decision, 11 is the protection

132

against "any disclosures which the witness may reasonably apprehend could be used in
a criminal prosecution or which could lead to other evidence that might be so used." If
that were all there is then it becomes diluted.
The constitutional guarantee protects as well the right to silence. As far back as 1905,
we had occasion to declare: "The accused has a perfect right to remain silent and his
silence cannot be used as a presumption of his guilt." 12 Only last year, in
Chavez v. Court of Appeals, 13 speaking through Justice Sanchez, we reaffirmed the
doctrine anew that is the right of a defendant "to forego testimony, to remain silent,
unless he chooses to take the witness standwith undiluted, unfettered exercise of his
own free genuine will."
Why it should be thus is not difficult to discern. The constitutional guarantee, along with
other rights granted an accused, stands for a belief that while crime should not go
unpunished and that the truth must be revealed, such desirable objectives should not
be accomplished according to means or methods offensive to the high sense of
respect accorded the human personality. More and more in line with the democratic
creed, the deference accorded an individual even those suspected of the most
heinous crimes is given due weight. To quote from Chief Justice Warren, "the
constitutional foundation underlying the privilege is the respect a government . . . must
accord to the dignity and integrity of its citizens."14
It is likewise of interest to note that while earlier decisions stressed the principle of
humanity on which this right is predicated, precluding as it does all resort to force or
compulsion, whether physical or mental, current judicial opinion places equal emphasis
on its identification with the right to privacy. Thus according to Justice Douglas: "The Fifth
Amendment in its Self-Incrimination clause enables the citizen to create a zone of
privacy which government may not force to surrender to his detriment." 15 So also with
the observation of the late Judge Frank who spoke of "a right to a private enclave
where he may lead a private life. That right is the hallmark of our democracy." 16
In the light of the above, it could thus clearly appear that no possible objection could
be legitimately raised against the correctness of the decision now on appeal. We hold
that in an administrative hearing against a medical practitioner for alleged malpractice,
respondent Board of Medical Examiners cannot, consistently with the self-incrimination
clause, compel the person proceeded against to take the witness stand without his
consent.
WHEREFORE, the decision of the lower court of August 2, 1965 is affirmed. Without
pronouncement as to costs.
Reyes, J.B.L. (Acting C.J.), Dizon, Makalintal, Zaldivar, Sanchez and Capistrano,
JJ.,concur.
Teehankee and Barredo, JJ., took no part.
Concepcion, C.J. and Castro, J., are on official leave.

||| (Pascual, Jr. v. Board of Medical Examiners, G.R. No. L-25018, [May 26, 1969], 138
PHIL 361-369)

25- Cabal v. Kapunan, G.R. No. L-19052, 29 December 1962

EN BANC
[G.R. No. L-19052. December 29, 1962.]
MANUEL F. CABAL, petitioner, vs. HON. RUPERTO KAPUNAN, JR., and
THE CITY FISCAL OF MANILA, respondents.
Francisco Carreon for petitioner.
Assistant City Fiscal Manuel T . Reyes for respondents City of Manila.

DECISION
CONCEPCION, J p:
This is an original petition for certiorari and prohibition with preliminary injunction, to
restrain the Hon. Ruperto Kapunan, Jr., as Judge of the Court of First Instance of Manila,
from further proceeding in Criminal Case No. 60111 of said court, and to set aside an
order of said respondent, as well as the whole proceedings in said criminal case.
On or about August 2, 1961, Col. Jose C. Maristela of the Philippine Army filed with the
Secretary of National Defense a letter-complaint charging petitioner Manuel F. Cabal,
then Chief of Staff of the Armed Forces of the Philippines, with "graft, corrupt practices,
unexplained wealth, conduct unbecoming of an officer and gentleman, dictatorial
tendencies, giving false statements of his assets and liabilities in 1958 and other equally
reprehensible acts". On September 6, 1961, the President of the Philippines created a
committee of five (5) members, consisting of former Justice Marceliano R. Montemayor,
as Chairman, former Justices Buenaventura Ocampo and Sotero Cabahug, and
Generals Basilio J. Valdez and Guillermo B. Francisco, to investigate the charge of
unexplained wealth contained in said letter-complaint and submit its report and
recommendations as soon as possible. At the beginning of the investigation, on
September 15, 1961, the Committee, upon request of complainant, Col. Maristela,
ordered petitioner herein to take the witness stand and be sworn to as witness for
Maristela, in support of his aforementioned charge of unexplained wealth. Thereupon,
petitioner objected, personally and through counsel, to said request of Col. Maristela
and to the aforementioned order of the Committee, invoking his constitutional right
against self-incrimination. The Committee insisted that petitioner take the witness stand
and be sworn to, subject to his right to refuse to answer such questions as may be

133

incriminatory. This notwithstanding, petitioner respectfully refused to be sworn to as a

witness or take the witness stand. Hence, in a communication dated September 18,
1961, the Committee referred the matter to respondent City Fiscal of Manila, for such
action as he may deem proper. On September 28, 1961, the City Fiscal filed with the
Court of First Instance of Manila a "charge" reading as follows:
"The undersigned hereby charges Manuel F. Cabal with contempt
under section 580 of the Revised Administrative Code in relation to
sections 1 and 7, Rule 64 of the Rules of Court, committed as
follows:
That on or about September 15, 1961, in the investigation
conducted at the U.P. Little Theater, Padre Faura, Manila,
by the Presidential Committee, which was created by the
President of the Republic of the Philippines in accordance
with law to investigate the charges of alleged acquisition
by respondent of unexplained wealth and composed of
Justice Marceliano Montemayor, as Chairman, and
Justices Buenaventura Ocampo and Sotero Cabahug
and Generals Basilio Valdez and Guillermo Francisco, as
members, with the power, among others, to compel the
attendance of witnesses and take their testimony under
oath, respondent who was personally present at the time
before the Committee in compliance with a subpoena
duly issued to him, did then and there willfully, unlawfully,
and contumaciously, without any justifiable cause or
reason, refuse and fail and still refuse and fail to obey the
lawful order of the Committee to take the witness stand,
be sworn and testify as witness in said investigation, in
utter disregard of the lawful authority of the Committee
and thereby obstructing and degrading the proceedings
before said body.'
"Wherefore, it is respectfully prayed that respondent be summarily
adjudged guilty of contempt of the Presidential Committee and
accordingly disciplined as in contempt of court by imprisonment
until such time as he shall obey the subject order of said
Committee."
This charge, docketed as Criminal Case No. 60111 of said court, was assigned to Branch
XVIII thereof, presided over by respondent Judge. On October 2, 1961, the latter issued
an order requiring petitioner to show cause and/or answer the charge filed against him
within ten (10) days. Soon thereafter, or on October 4, 1961, petitioner filed with
respondent Judge a motion to quash the charge and/or order to show cause, upon the
ground: (1) that the City Fiscal has neither authority nor personality to file said charge
and the same is null and void, for, if criminal, the charge has been filed without a
preliminary investigation, and, if civil, the City Fiscal may not file it, his authority in respect
of civil cases being limited to representing the City of Manila; (2) that the facts charged
constitute no offense, for section 580 of the Revised Administrative Code, upon which
the charge is based, violates due process, in that it is vague and uncertain as regards

the offense therein defined and the fine imposable therefor and that it fails to specify
whether said offense shall be treated as contempt of an inferior court or of a superior
court; (3) that more than one offense is charged, for the contempt imputed to
petitioner is sought to be punished as contempt of an inferior court, as contempt of a
superior court and as contempt under section 7 of Rule 64 of the Rules of Court; (4) that
the Committee had no power to order and require petitioner to take the witness stand
and be sworn to, upon the request of Col. Maristela, as witness for the latter, inasmuch
as said order violates petitioner's constitutional right against self-incrimination.
By resolution dated October 14, 1961, respondent Judge denied said motion to quash.
Thereupon, or on October 20, 1961, petitioner began the present action for the purpose
adverted to above, alleging that, unless restrained by this Court, respondent Judge may
summarily punish him for contempt, and that such action would not be appealable.
In their answer, respondents herein allege, inter alia, that the investigation being
conducted by the Committee above referred to is administrative, not criminal, in
nature; that the legal provision relied upon by petitioner in relation to preliminary
investigations (Section 38-C, Republic Act No. 409, as amended by Republic ActNo.
1201) is inapplicable to contempt proceedings; that, under section 580, of the Revised
Administrative Code, contempt against an administrative officer is to be dealt with as
contempt of a superior court; that petitioner herein is charged with only one offense;
and that, under the constitutional guarantee against self-incrimination, petitioner herein
may refuse, not to take the witness stand, but to answer incriminatory questions.
At the outset, it is not disputed that the accused in a criminal case may refuse, not only
to answer incriminatory questions, but, also, to take the witness stand (3 Wharton's
Criminal Evidence, pp. 1959-1960; 98 C.J.S., p. 264). Hence, the issue before us boils
down to whether or not the proceedings before the aforementioned Committee is civil
or criminal in character.
In this connection, it should be noted that, although said Committee was created to
investigate the administrative charge of unexplained wealth, there seems to
beno question that Col. Maristela does not seek the removal of petitioner herein as
Chief of Staff of the Armed Forces of the Philippines. As a matter of fact he nolonger
holds such office. It seems, likewise, conceded that the purpose of the charge against
petitioner is to apply the provisions of Republic Act No. 1379, as amended, otherwise
known as the Anti-Graft Law, which authorizes the forfeiture to the State of property of a
public officer or employee which is manifestly out of proportion to his salary as such
public officer or employee and his other lawful income and the income from
legitimately acquired property. Such forfeiture has been held, however, to partake of
the nature of a penalty.
"In a strict signification, a forfeiture is a divestiture of property
without compensation, in consequence of a default or an offense,
and the term is used in such a sense in this article. A forfeiture, as
thus defined, is imposed by way of punishment not by the mere
convention of the parties, but by the lawmaking power, to insure a
prescribed course of conduct. It is a method deemed necessary
by the legislature to restrain the commission of an offense and
to aid in the prevention of such an offense. The effect of such a

134

forfeiture is to transfer the title to the specific thing from the owner
to the sovereign power (23 Am. Jur. 599) (Emphasis ours.)
"In Black's Law Dictionary a 'forfeiture' is defined to be 'the incurring
of a liability to pay a definite sum of money as the consequence of
violating the provisions of some statute or refusal to comply with
some requirement of law.' It may be said to be a penalty imposed
for misconduct or breach of duty.'" (Com. vs. French, 114 S.W. 255.)
As a consequence, proceedings for forfeiture of property are deemed criminal or
penal, and, hence, the exemption of defendants in criminal case from the obligation to
be witnesses against themselves are applicable thereto.
"Generally speaking, informations for the forfeiture of goods that
seek nojudgment of fine or imprisonment against any person are
deemed to be civil proceedings in rem. Such proceedings are
criminal in nature to the extent that where the person using the res
illegally is the owner of rightful possessor of it, the forfeiture
proceeding is in the nature of a punishment. They have been held
to be so far in the nature of criminal proceedings that a general
verdict on several counts in an information is upheld if one count is
good. According to the authorities such proceedings, where the
owner of the property appears, are so far considered as
quasicriminal proceedings as to relieve the owner from being a
witness against himself and to prevent the compulsory production
of his books and papers. . . ." (23 Am. Jur. 612; Emphasis ours.)
"Although the contrary view formerly obtained, the later decisions
are to the effect that suits for forfeitures incurred by the commission
of offenses against the law are so far of a quasi-criminal nature as
to be within the reason of criminal proceedings for all purposes of .
. . that portion of the Fifth Amendment which declares
that no person shall be compelled in any criminal case to be a
witness against himself . . . . It has frequently been held upon
constitutional grounds under the various State Constitution that a
witness or party called as a witness cannot be made to testify
against himself as to matters which would subject his property to
forfeiture. At early common law no person could be compelled to
testify against himself or to answer any question which would have
had a tendency to expose his property to a forfeiture, or to form a
link in a chain of evidence for that purpose as well as to incriminate
him. Under this common-law doctrine of protection against
compulsory disclosures which would tend to subject the witness to
a forfeiture, such protection was claimed and availed of in some
early American cases without placing the basis of the protection
upon constitutional grounds." (23 Am. Jur. 616; Emphasis ours.)
"Proceedings for forfeitures are generally considered to be civil and
in the nature of proceedings in rem. The statute providing
that no judgment or other proceedings in civil cases shall be

arrested or reversed for any defect or want of form is applicable to

them. In some aspects, however, suits for penalties and forfeitures
are of quasi-criminal nature and within the reason of criminal
proceedings for all the purposes of . . . that portion of the Fifth
Amendment which declares that no person shall be compelled in
any criminal case to be a witness against himself . The proceeding
is one against the owner, as well as against the goods; for it is his
breach of the laws which has to be proved to establish the
forfeiture and his property is sought to be forfeited." (15 Am. Jur.,
Sec. 104, p. 368; Emphasis ours.)
"The rule protecting a person from being compelled to furnish
evidence which would incriminate him exists not only when he is
liable criminally to prosecution and punishment, but also when his
answer would tend to expose him to a . . . forfeiture . . . (58 Am.
Jur., Sec. 43, p. 48; Emphasis ours.)
"As already observed, the various constitutions provide
that no person shall be compelled in any criminal case to be a
witness against himself. This prohibition against compelling a person
to take the stand as a witness against himself applies only to
criminal, quasi-criminal, and penal proceedings, including a
proceeding civil in form for forfeiture of property by reason of the
commission of an offense, but not a proceeding in which the
penalty recoverable is civil or remedial in nature, . . ." (58 Am. Jur.,
Sec. 44, p. 49; Emphasis ours.)
"The privilege of a witness not to incriminate himself is not infringed
by merely asking the witness a question which he refuses to answer.
The privilege is simply an option of refusal, and not a prohibition of
inquiry. A question is not improper merely because the answer may
tend to criminate but, where a witness exercises his constitutional
right not to answer, a question by counsel as to whether the reason
for refusing to answer is because the answer may tend to
incriminate the witness is improper.
"The possibility that the examination of the witness will be pursued
to the extent of requiring self incrimination will not justify the refusal
to answer questions. However, where the position of the witness is
virtually that of an accused on trial, it would appear that he may
invoke the privilege in support of a blanket refusal to answer one
and all questions." (98 C.J.S., p. 252; Emphasis ours.)
"A person may not be compelled to testify in an action against him
for a penalty or to answer any question as a witness which would
subject him to a penalty or forfeiture, where the penalty or
forfeiture is imposed as a vindication of the public justice of the
state.

135

"In general, both at common law and under a constitutional

provision against compulsory self-incrimination, a person may not
be compelled to answer any question as a witness which would
subject him to a penalty orforfeiture, or testify in an action against
him for a penalty.

Bengzon, C . J ., is on leave.

"The privilege applies where the penalty or forfeiture is recoverable,

or is imposed in vindication of the public justice of the state, as a
statutory fine or penalty, or a fine or penalty for violation of a
municipal ordinance, even though the action or proceeding for its
enforcement is not brought in a criminal court but is prosecuted
through the modes of procedure applicable to an ordinary civil
remedy." (98 C.J.S., pp. 275-6.)

26- Beltran v. Samson, G.R. No. 32025, 23 September 1929

||| (Cabal v. Kapunan, G.R. No. L-19052, [December 29, 1962], 116 PHIL 1361-1370)

FIRST DIVISION
[G.R. No. 32025. September 23, 1929.]

Thus, in Boyd vs. U.S. (116 U.S. 616, 29 L. ed. 746), it was held that the information, in a
proceeding to declare a forfeiture of certain property because of the evasion of a
certain revenue law, "though technically a civil proceeding, is in substance and effect a
criminal one", and that suits for penalties and forfeitures are within the reason of criminal
proceedings for the purposes of that portion of the Fifth Amendment of the Constitution
of the U.S. which declares that noperson shall be compelled in a criminal case to be a
witness against himself. Similarly, a proceeding for the removal of an officer was held, in
Thurston vs. Clark (107 Cal. 285, 40 pp. 435, 437), to be in substance criminal, for said
portion of the Fifth Amendment applies "to all cases in which the action prosecuted is
not to establish, recover or redress private and civil rights, but to try and punish persons
charged with the commission of public offenses" and "a criminal case is an action, suit
or cause instituted to punish an infraction of the criminal laws, and, with this object in
view, it matters not in what form a statute may clothe it; it is still a criminal case . . .". This
view was, in effect confirmed in Lees vs. U.S. (37 L. ed. 1150-1151). Hence, the Lawyers
Reports Annotated (Vol. 29, p. 8), after an extensive examination of pertinent cases,
concludes that said constitutional provision applies whenever the proceeding is
not "purely remedial", or intended "as a redress for a private grievance", but primarily to
punish "a violation of duty or a public wrong and to deter others from offending in a like
manner . . ."
We are not unmindful of the doctrine laid down in Almeda vs. Perez, L-18428 (August 30,
1962) in which the theory that, after the filing of respondents' answer to a petition for
forfeiture under Republic Act No. 1379, said petition may not be amended as to
substance pursuant to our rules of criminal procedure, was rejected by this Court upon
the ground that said forfeiture proceeding is civil in nature. This doctrine refers, however,
to the purely procedural aspect of said proceeding, and has no bearing on the
substantial rights of the respondents therein, particularly their constitutional right against
self-incrimination.
WHEREFORE, the writ prayed for is granted and respondent Judge hereby enjoined
permanently from proceeding further in Criminal Case No. 60111 of the Court of First
Instance of Manila. It is so ordered.
Padilla, Bautista Angelo, Labrador,
Regalaand Makalintal, JJ ., concur.

Reyes,

J.B.L.,

Barrera,

Paredes,

Dizon,

FRANCISCO BELTRAN, petitioner, vs. FELIX SAMSON, Judge of the

Second Judicial District, and FRANCISCO JOSE, Provincial Fiscal of
Isabela, respondents.
Gregorio P. Formoso and Vicente Formoso for petitioner.
The respondents in their own behalf.

DECISION
ROMUALDEZ, J p:
This is a petition for a writ of prohibition, wherein the petitioner complains
that the respondent judge ordered him to appear before the provincial fiscal to
take dictation in his won handwriting from the latter.
The order was given upon petition of said fiscal for the purpose of
comparing the petitioner's handwriting and determining whether or not it is he who
wrote certain documents supposed to be falsified.
There is no question as to the facts alleged in the complaints filed in these
proceedings; but the respondents contend that the petitioner is not entitled to the
remedy applied for, inasmuch as the order prayed for by the provincial fiscal and
later granted by the court below, and against which the instance action was
brought, is based on the provisions of section 1687 of the Administrative Code and
on the doctrine laid down in the cases of People vs.Badilla (48 Phil., 718); United
States vs. Tan Teng (23 Phil., 145); United Statesvs. Ong Siu Hong (36 Phil., 735), cited
by counsel for the respondents, and in the case of Villaflor vs. Summers (41 Phil., 62)
cited by the judge in the order in question.
Of course, the fiscal under section 1687 of the Administrative Code, and
the proper judge, upon motion of the fiscal, may compel witnesses to be present at

136

the investigation of any crime of misdemeanor. But this power must be exercised
without prejudice to the constitutional rights of persons cited to appear.
And the petitioner, in refusing to perform what the fiscal demanded, seeks
refuge in the constitutional provision contained in the Jones Law and incorporated
in General Orders, No. 58.
Therefore, the question raised is to be decided by examining whether the
constitutional provision invoked by the petitioner prohibits compulsion to execute
what is enjoined upon him by the order against which these proceedings were
taken.
Said provision is found in paragraph 3, section 3 of the Jones Law which
(in Spanish) reads: "Ni se le obligara a declarar en contra suya en ningun proceso
criminal" and has been incorporated in our Criminal Procedure (General
Orders, No. 58) in section 15 (No. 4) and section 56.
As to the extent of this privilege, it should be noted first of all, that the
English text of the Jones Law, which is the original one, reads as follows: "Nor shall
he be compelled in any criminal case to be a witness against himself."
This text is not limited to declaracion but says "to be a witness." Moreover,
as we are concerned with a principle contained both in the Federal constitution
and in the constitutions of several states of the United States, but expressed
differently, we should take it that these various phrasings have a common
conception.
"In the interpretation of the principle, nothing turns upon
the variations of wordings in the constitutional clauses; this much is
conceded (ante, par. 2252). It is therefore immaterial that the
witness is protected by one Constitution from 'testifying,' or by
another from 'furnishing evidence,' or by another from 'giving
evidence,' or by still another from 'being a witness.' These various
phrasings have a common conception, in respect to the form of
the protected disclosure. What is that conception?" (4 Wigmore on
Evidence, p. 863, 1923 ed.)
As to its scope, this privilege is not limited precisely to testimony, but
extends to all giving or furnishing of evidence.
"The rights intended to be protected by the constitutional
provision that no man accused of crime shall be compelled to be
a witness against himself is so sacred, and the pressure toward their
relaxation so great when the suspicion of guilt is strong and the
evidence obscure, that it is the duty of courts liberally to construe
the prohibition in favor of personal rights, and to refuse to permit
any steps tending toward their invasion. Hence, there is the wellestablished doctrine that the constitutional inhibition is directed not
merely to giving of oral testimony, but embraces as well the

furnishing of evidence by other means than by word of mouth,the

divulging, in short, of any fact which the accused has a right to
hold secret." (28 R. C. L., paragraph 20, page 434 and notes.)
(Italics ours.)
The question, then, is reduced to a determination of whether the writing
from the fiscal's dictation by the petitioner for the purpose of comparing the latter's
handwriting and determining whether he wrote certain documents supposed to be
falsified, constitutes evidence against himself within the scope and meaning of the
constitutional provision under examination.
Whenever a defendant, at the trial of his case, testifying in his own behalf,
denies that a certain writing or signature is in his own hand, he may on crossexamination but compelled to write in open court in order that the jury may be
able to compare his handwriting with the one in question. It was so held in the case
of Bradford vs. People (43 Pacific Reporter, 1013) inasmuch as the defendant, in
offering himself as witness in his own behalf, waived his personal privileges.
Of like character is the case of Sprouse vs. Com. (81 Va., 374, 378), where
the judge asked the defendant to write his name during the hearing, and the latter
did so voluntarily.
But the cases so resolved cannot be compared to the one now before us.
We are not concerned here with a defendant, for it does not appear that any
information was filed against the petitioner for the supposed falsification, and still
less is it a question of a defendant on trial testifying and under cross-examination.
This is only an investigation prior to the information and with a view to filing it. And
let it further be noted that in the case of Sprouse vs. Com., the defendant
performed the act voluntarily.
We have also come upon a case wherein the handwriting or the form of
writing of the defendant was obtained before the criminal action was instituted
against him. We refer to the case of People vs. Molineux (61 Northeastern Reporter,
286).
Neither may it be applied to the instant case, because there, as in the
aforesaid case of Sprouse vs. Com., the defendant voluntarily offered to write, to
furnish a specimen of his handwriting.
We cite this case particularly because the court there given prominence
to the defendant's right to decline to write, and to the fact that he voluntarily
wrote. The following appears in the body of said decision referred to (page 307 of
the volume cited):
"The defendant had the legal right to refuse to write for
Kinsley. He preferred to accede to the latter's request, and we can
discover no ground upon which the writings thus produced can be
excluded from the case." (Italics ours.)

137

For this reason it was held in the case of First National Bank vs. Robert 941
Mich., 709; 3 N. W., 199), that the defendant could not be compelled to write his
name, the doctrine being stated as follows:
"The defendant being sworn in his own behalf denied the
indorsement.
"He was then cross-examined and questioned in regard to
his having signed papers not in the case, and was asked in
particular whether he would not produce signatures made prior to
the note in suit, and whether he would not write his name there in
court. The judge excluded all these inquiries, on objection, and it is
our these rulings that complaint is made. The object of the
questions was to bring into the case extrinsic signatures, for the
purpose of comparison by the jury, and we think the judge was
correct in ruling against it."
It is true that the eminent Professor Wigmore, in his work cited (volume 4,
page 878), says:
"Measuring or photographing the party is not within the
privilege. Nor is the removal or replacement of his garments or
shoes. Nor is the requirement that the party move his body to
enable the foregoing things to be done. Requiring him to
make specimens of handwriting is no more than requiring him to
move his body . . ." but he cites no case in support of his last
assertion on specimens of handwriting. We noted that in the same
paragraph 2265, where said author treats of "Bodily Exhibition," and
under proposition "1. A great variety of concrete illustrations have
been ruled upon," he cites many cases, among them that of
People vs.Molineux (61 N. E., 286) which, as we have seen,
has no application to the case at bar because there the
defendant voluntarily gave specimens of his handwriting, while
here the petitioner refuses to do so and has even instituted these
prohibition proceedings that he may not be compelled to do so.
Furthermore, in the case before us, writing is something more than moving
the body, or the hand, or the fingers; writing is not a purely mechanical and
attention; and in the case at bar writing means that the petitioner herein is to
furnish a means to determine or not he is the falsifier, as the petition of the
respondent fiscal clearly states. Except that it is more serious, we believe the
present case is similar to that of producing documents of chattels in one's
possession. And as to such production of documents or chattels, which to our mind
is not so serious as the case now before us, the same eminent Professor Wigmore, in
his work cited, says (volume 4, page 864):
". . . 2264, Production or Inspection of Documents and
Chattels. 1. It follows that the production of documents or
chattels by a person (whether ordinary witness or party-witness) in

response to a subpoena, or to a motion to order production, or to

other form of process treating him as a witness (i. e. as a person
appearing before the tribunal to furnish testimony on his moral
responsibility for truth- telling), may be refused under the protection
of the privilege; and this is universally conceded." (And he cites the
case of People vs. Gardner, 144 N. Y., 119, 38 N. E., 1003.)

We say that, for the purposes of the constitutional privilege, there is a

similarity between one who is compelled to produce a document, and one who is
compelled to furnish a specimen of his handwriting, for in both cases, the witness is
required to furnish evidence against himself.
And we say that the present case is more serious than that of compelling
the production of documents or chattels, because here the witness is compelled
to write and create, by means of the act of writing, evidence which does not exist,
and which may identify him as the falsifier. And for this reason the same eminent
author, Professor Wigmore, explaining the matter of the production of documents
and chattels, in the passage cited, adds:
"For though the disclosure thus sought be not oral in form, and though the
documents or chattels be already in existence and not desired to be first written
and created by a testimonial act or utterance of the person in response to the
process, still no line can be drawn short of any process which treats him as a
witness; because in virtue of it he would be at any time liable to make oath to the
identity of authenticity or origin of the articles produced." (Ibid., pp. 864-865.) (Italics
ours.)
It cannot be contended in the present case that if permission to obtain a
specimen of the petitioner's handwriting is not granted, the crime would go
unpunished. Considering the circumstance that the petitioner is a municipal
treasurer, according to Exhibit A, it should not be a difficult matter for the fiscal to
obtain genuine specimens of his handwriting. But even supposing it is impossible to
obtain a specimen or specimens without resorting to the means complained of
herein, that is not reason for trampling upon a personal right guaranteed by the
constitution. It might be true that in some cases criminals may succeed in evading
the hand of justice, but such cases are accidental and do not constitute the raison
d'etre of the privilege. This constitutional privilege exists for the protection of
innocent persons.
With respect to the judgments rendered by this court and cited on behalf
of the respondents, it should be remembered that in the case of People vs.Badilla
(48 Phil., 718), it does not appear that the defendants and other witnesses were
questioned by the fiscal against their will, and if they did not refuse to answer, they
must be understood to have waived their constitutional privilege, as they could
certainly do.

138

"The privilege not to give self-incriminating evidence,

while absolute when claimed, may be waived by any one entitled
to invoke it." (28 R. C. L., paragraph 29, page 442, and cases
noted.)

FIRST DIVISION
[G.R. No. 7081. September 7, 1912.]

The same holds good in the case of United States vs. Tan Teng (23 Phil.,
145), where the defendant did not oppose the extraction from his body of the
substance later used as evidence against him.
In the case of Villaflor vs. Summers (41 Phil., 62), it was plainly stated that
the court preferred to rest its decision on the reason of the case rather than on
blind adherence to tradition. The said reason of the case there consisted in that it
was a case of the examination of the body by physicians, which could be and
doubtless was interpreted by this court, as being no compulsion of the petitioner
therein to furnish evidence by means of a testimonial act. In reality she was not
compelled to execute any position act, much less a testimonial act; she was only
enjoined from something, preventing the examination; all of which is very different
from what is required of the petitioner in the present case, where it is sought to
compel his to perform a positive, testimonial act, to write and give a specimen of
his handwriting for the purpose of comparison. Beside, in the case of
Villaflor vs. Summers, it was sought to exhibit something already in existence, while
in the case at bar, the question deals with something not yet in existence, and it is
precisely sought to compel the petitioner to make, prepare, or produce by means,
evidence not yet in existence; in short, to create this evidence which may seriously
incriminate him.
Similar considerations suggest themselves to us with regard to the case of
United States vs. Ong Siu Hong (36 Phil., 735), wherein the defendant was to
compelled to perform any testimonial act, but to take out of his mouth the
morphine he had there. It was not compelling him to testify or to be a witness or to
furnish, much less make, prepare, or create through a testimonial act, evidence for
his own condemnation.
Wherefore, we find the present action well taken, and it is ordered that
the respondents and those under their orders desist and abstain absolutely and
forever from compelling the petitioner to take down dictation in his handwriting for
the purpose of submitting the latter for comparison.
Without express pronouncement as to costs. So ordered.
Avancea, C. J., Johnson, Street, Villamor, Johns and Villa-Real,
JJ., concur.
||| (Beltran v. Samson, G.R. No. 32025, [September 23, 1929], 53 PHIL
570-579)

27- US v. Tan Teng, G.R No. 7081, 7 September 1912

THE UNITED STATES, plaintiff-appellee, vs. TAN TENG, defendantappellant.

Chas. A. McDonough for appellant.
Solicitor-General Harvey for appellee.
DECISION
JOHNSON, J p:
This defendant was charged with the crime of rape. The complaint
alleged:
"That on or about September 15, 1910, and before the
filing of this complaint, in the city of Manila, Philippine Islands, the
said Tan Teng did willfully, unlawfully and criminally, and employing
force, lie and have carnal intercourse with a certain Oliva
Pacomio, a girl 7 years of age."
After hearing the evidence, the Honorable Charles S. Lobingier, judge,
found the defendant guilty of the offense of abusos deshonestos, as defined and
punished under article 439 of the Penal Code, and sentenced him to be
imprisoned for a period of 4 years 6 months and 11 days of prison correccional, and
to pay the costs.
From that sentence the defendant appealed and made the following
assignments of error in this court:
"I. The lower court erred in admitting the testimony of the
physicians about having taken a certain substance from the body
of the accused while he was confined in jail and regarding the
chemical analysis made of the substance to demonstrate the
physical condition of the accused with reference to a venereal
disease.
"II. The lower court erred in holding that the complainant
was suffering from a venereal disease produced by contact with a
sick man.
"III. The court erred in holding that the accused was
suffering from a venereal disease.

139

"IV. The court erred in finding the accused guilty from the
evidence."
From an examination of the record it appears that the offended party,
Oliva Pacomio, a girl seven years of age, was, on the 15th day of September, 1910,
staying in the house of her sister, located on Ilang-Ilang Street, in the city of Manila;
that on said day a number of Chinamen were gambling in or near the said house;
that some of said Chinamen had been in the habit of visiting the house of the sister
of the offended party; that Oliva Pacomio, on the day in question, after having
taken a bath, returned to her room; that the defendant followed her into her room
and asked her for some face powder, which she gave him; that after using some of
the face powder upon his private parts, he threw the said Oliva upon the floor,
placing his private parts upon hers, and remained in the position for some little time.
Several days later, perhaps a week or two, the sister of Oliva Pacomio discovered
that the latter was suffering from a venereal disease known as gonorrhea. It was at
the time of this discovery that Oliva related to her sister what had happened upon
the morning of the 15th of September. The sister at once put on foot an
investigation to find the Chinaman. A number of Chinamen were collected
together. Oliva was called upon to identify the one who had abused her. The
defendant was not present at first. Later he arrived and Oliva identified him at once
as the one who had attempted to violate her.

Upon this information the defendant was arrested and taken to the police
station and stripped of his clothing and examined. The policeman who examined
the defendant swore that his body bore every sign of the fact that he was suffering
from the venereal disease known as gonorrhea. The policeman took a portion of
the substance emitting from the body of the defendant and turned it over to the
Bureau of Science for the purpose of having a scientific analysis made of the same.
The result of the examination showed that the defendant was suffering from
gonorrhea.
During the trial the defendant objected strongly to the admissibility of the
testimony of Oliva, on the ground that because of her tender years her testimony
should not be given credit. The lower court, after carefully examining her with
reference to her ability to understand the nature of an oath, held that she had
sufficient intelligence and discernment to justify the court in accepting her
testimony with full faith and credit. With the conclusion of the lower court, after
reading her declaration, we fully concur.
The defense in the lower court attempted to show that the venereal
disease of gonorrhea might be communicated in ways other than by contact such
as is described in the present case, and called medical witnesses for the purpose of
supporting that contention. Judge Lobingier, in discussing that question said:
"We shall not pursue the refinement of speculation as to
whether or not this disease might, in exceptional cases, arise from
other than carnal contact. The medical experts, as well as the

books, agree that in ordinary cases it arises from that cause, and if
this was an exceptional one, we think it was incumbent upon the
defense to bring it within the exception."
The offended party testified that the defendant had rested his private
parts upon hers for some moments. The defendant was found to be suffering from
gonorrhea. The medical experts who testified agreed that this disease could have
been communicated from him to her by the contact described. Believing as we do
the story told by Oliva, we are forced to the conclusion that the disease with which
Oliva was suffering was the result of the illegal and brutal conduct of the
defendant. Proof, however, that Oliva contracted said obnoxious disease from the
defendant is not necessary to show that he is guilty of the crime. It is only
corroborative of the truth of Oliva's declaration.
The defendant attempted to prove in the lower court that the prosecution
was brought for the purpose of compelling him to pay to the sister of Oliva a
certain sum of money.
The defendant testified and brought other Chinamen to support his
declaration, that the sister of Oliva threatened to have him prosecuted if he did not
pay her the sum of P60. It seems impossible to believe that the sister, after having
become convinced that Oliva had been outraged in the manner described
above, would consider for a moment a settlement for the paltry sum of P60. Honest
women do not consent to the violation of their bodies nor those of their near
relatives, for the filthy consideration of mere money.
In the court below the defendant contended that the result of the
scientific examination made by the Bureau of Science of the substance taken from
his body, at or about the time he was arrested, was not admissible in evidence as
proof of the fact that he was suffering from gonorrhea. That to admit such
evidence was to compel the defendant to testify against himself. Judge Lobingier,
in discussing that question in his sentence, said:
"The accused was not compelled to make any admissions
or answer any questions, and the mere fact that an object found
on his person was examined; seems no more to infringe the rule
invoked, than would the introduction in evidence of stolen
property taken from the person of a thief."
The substance was taken from the body of the defendant without his
objection, the examination was made by competent medical authority and the
result showed that the defendant was suffering from said disease. As was
suggested by Judge Lobingier, had the defendant been found with stolen property
upon his person, there certainly could have been no question had the stolen
property been taken for the purpose of using the same as evidence against him. So
also if the clothing which he wore, by reason of blood stains or otherwise, had
furnished evidence of the commission of a crime, there certainly could have
been no objection to taking such for the purpose of using the same as
proof. No one would think of even suggesting that stolen property and the clothing

140

in the case indicated, taken from the defendant, could not be used against him as
evidence, without violating the rule that a person shall not be required to give
testimony against himself.

caused the prints of the shoes to be made in the sand before the jury, and
witnesses who had observed shoe prints in the sand at the place of the commission
of the crime were permitted to compare them with what they had observed at
that place.

The question presented by the defendant below and repeated in his first
assignment of error is not a new question, either to the courts or authors. In the case
of Holt vs. U.S. (218 U.S., 245), Mr. Justice Holmes, speaking for the court upon this
question, said:

In that case also the clothing of the defendant was used as evidence
against him.

"But the prohibition of compelling a man in a criminal court to be a

witness against himself, is a prohibition of the use of physical or moral compulsion,
to extort communications from him, not an exclusion of his body as evidence, when
it may be material. The objection, in principle, would forbid a jury (court) to look at
a person and compare his features with a photograph in proof. Moreover we are
not considering how far a court would go in compelling a man to exhibit himself, for
when he is exhibited, whether voluntarily or by order, even if the order goes too far,
the evidence if material, is competent."

To admit the doctrine contended for by the appellant might exclude the
testimony of a physician or a medical expert who had been appointed to make
observations of a person who plead insanity as a defense, where such medical
testimony was against the contention of the defendant. The medical expert must
necessarily use the person of the defendant for the purpose of making such
examination. (People vs. Austin, 199 N. Y., 446.) The doctrine contended for by the
appellant would also prevent the courts from making an examination of the body
of the defendant where serious personal injuries were alleged to have been
received by him. The right of the courts in such cases to require an exhibit of the
injured parts of the body has been established by a long line of decisions.

The question which we are discussing was also discussed by the supreme
court of the State of New Jersey, in the case of State vs. Miller (71 N. J) Law Reports,
527). In that case the court said, speaking through its chancellor:
"It was not erroneous to permit the physician of the jail in
which the accused was confined, to testify to wounds observed by
him on the back of the hands of the accused, although he also
testified that he had the accused removed to a room in another
part of the jail and divested of his clothing. The observation made
by the witness of the wounds on the hands and testified to by him,
was in no sense a compelling of the accused to be a witness
against himself. If the removal of the clothes had been forcible and
the wounds had been thus exposed, it seems that the evidence of
their character and appearance would not have been
objectionable."
In that case also (State vs. Miller) the defendant was required to place his
hand upon the wall of the house where the crime was committed, for the purpose
of ascertaining whether or not his hand would have produced the bloody print. The
court said, in discussing that question:
"It was not erroneous to permit evidence of the
coincidence between the hand of the accused and the bloody
prints of a hand upon the wall of the house where the crime was
committed, the hand of the accused having been placed thereon
at the request of persons who were with him in the house."
It may be added that a section of the wall containing the blood prints
was produced before the jury and the testimony of such comparison was like that
held to be proper in another case decided by the supreme court of New Jersey in
the case of Johnson vs. State (30 Vroom, N. J., Law Reports, 271). The defendant

The prohibition contained in section 5 of the Philippine Bill that a person

shall not be compelled to be a witness against himself, is simply a prohibition
against legal process to extract from the defendant's own lips, against his will, an
admission of his guilt.
Mr. Wigmore, in his valuable work on evidence, in discussing the question
before us, said:
"If, in other words, it (the rule) created inviolability not only
for his [physical control of his] own vocal utterances, but also for his
physical control in whatever form exercised, then it would be
possible for a guilty person to shut himself up in his house, with all
the tools and indicia of his crime, and defy the authority of the law
to employ in evidence anything that might be obtained by forcibly
overthrowing his possession and compelling the surrender of the
evidential articles a clear reductio ad absurdum. In other words,
it is not merely compulsion that is the kernel of the privilege, . . .
but testimonial compulsion." (4 Wigmore, sec. 2263.)
The main purpose of the provision of the Philippine Bill is to prohibit
compulsory oral examination of prisoners before trial, or upon trial, for the purpose
of extorting unwilling confessions or declarations implicating them in the
commission of a crime. (People vs. Gardner, 144 N. Y., 119.)
The doctrine contended for by the appellant would prohibit courts from
looking at the face of a defendant even, for the purpose of disclosing his identity.
Such an application of the prohibition under discussion certainly could not be
permitted. Such an inspection of the bodily features by the court or by witnesses,
can not violate the privilege granted under the Philippine Bill, because it does not
call upon the accused as a witness it does not call upon the defendant for his

141

testimonial responsibility. Mr. Wigmore says that evidence obtained in this way from
the accused, is not testimony by his body but his body itself.

SECOND DIVISION
[G.R. Nos. 133254-55. April 19, 2001.]

As was said by Judge Lobingier:

"The accused was not compelled to make any admission
or answer any questions, and the mere fact that an object found
upon his body was examined seems no more to infringe the rule
invoked than would the introduction of stolen property taken from
the person of a thief."
The doctrine contended for by the appellant would also prohibit the
sanitary department of the Government from examining the body of persons who
are supposed to have some contagious disease.
We believe that the evidence clearly shows that the defendant was
suffering from the venereal disease, as above stated, and that through his brutal
conduct said disease was communicated to Oliva Pacomio. In a case like the
present it is always difficult to secure positive and direct proof. Such crimes as the
present are generally proved by circumstantial evidence. In cases of rape the
courts of law require corroborative proof, for the reason that such crimes are
generally committed in secret. In the present case, taking into account
the number and credibility of the witnesses, their interest and attitude on the
witness stand, their manner of testifying and the general circumstances surrounding
the witnesses, including the fact that both parties were found to be suffering from a
common disease, we are of the opinion that the defendant did, on or about the
15th of September, 1910, have such relations as above described with the said
Oliva Pacomio, which under the provisions of article 439 of the Penal Code makes
him guilty of the crime of "abusos deshonestos," and taking into consideration the
fact that the crime which the defendant committed was done in the house where
Oliva Pacomio was living, we are of the opinion that the maximum penalty of the
law should be imposed. The maximum penalty provided for by law is six years
of prison correccional.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO

SALANGUIT y KO, accused-appellant.
DECISION
MENDOZA, J p:
This is an appeal from the decision, 1 dated January 27, 1998, of the Regional Trial Court,
Branch 96, Quezon City, finding accused-appellant Roberto Salanguit y Ko guilty of
violation of 16 of Republic Act No. 6425, as amended, and sentencing him accordingly
to suffer imprisonment ranging from six (6) months of arresto mayor, as minimum, to four
(4) years and two (2) months of prision correccional, as maximum, and of 8 of the
same law and sentencing him for such violation to suffer the penalty of reclusion
perpetua and to pay a fine of P700,000.00.
Charges against accused-appellant for violations of R.A. No. 6425 were filed on
December 28, 1995. In Criminal Case No. Q-95-64357, the information alleged:
That on or about the 26th day of December 1995, in Quezon City,
Philippines, the said accused, did then and there willfully, unlawfully
and knowingly possess and/or use 11.14 grams of
Methamphetamine Hydrochloride (Shabu) a regulated drug,
without the necessary license and/or prescription therefor, in
violation of said law.
CONTRARY TO LAW. 2
In Criminal Case No. Q-95-64358, the information charged:

Arellano, C.J., Torres, Mapa, Carson, and Trent, JJ., concur.

That on or about the 26th day of December 1995, in Quezon City,

Philippines, the said accused not being authorized by law to
possess or use any prohibited drug, did, then and there willfully,
unlawfully and knowingly have in his possession and under his
custody and control 1,254 grams of Marijuana, a prohibited
drug. aSECAD

(U.S. v. Tan Teng, G.R. No. 7081, [September 7, 1912], 23 PHIL 145-154)

CONTRARY TO LAW. 3

Therefore let a judgment be entered modifying the sentence of the lower court
and sentencing the defendant to be imprisoned for a period of six years of prision
correccional, and to pay the costs. So ordered.

When arraigned on May 21, 1996, accused-appellant pleaded not guilty, 4whereupon
he was tried.
28- People v. Salanguit, G.R. No. 133254-55, 19 April 2001

Three witnesses were presented by the prosecution: P/Insp. Sonia S. Ludovico, forensic
chemist and chief of the Physical Science Branch of the Philippine National Police Crime
Laboratory, Senior Inspector Rodolfo Aguilar of the Narcotics Command, Camp Crame,

142

Quezon City, and PO3 Rolando Duazo of Station 10, Kamuning, Quezon City, a field
operative. The prosecution evidence established the following:
On December 26, 1995, Sr. Insp. Aguilar applied for a warrant 5 in the Regional Trial
Court, Branch 90, Dasmarias, Cavite, to search the residence of accused-appellant
Robert Salanguit y Ko on Binhagan St., Novaliches, Quezon City. He presented as his
witness SPO1 Edmund Badua, who testified that as a poseur-buyer, he was able to
purchase 2.12 grams of shabu from accused-appellant. The sale took place in accusedappellant's room, and Badua saw that the shabu was taken by accused-appellant from
a cabinet inside his room. The application was granted, and a search warrant was later
issued by Presiding Judge Dolores L. Espaol.
At about 10:30 p.m. of December 26, 1995, a group of about 10 policemen, along with
one civilian informer, went to the residence of accused-appellant to serve the
warrant. 6
The police operatives knocked on accused-appellant's door, but nobody opened it.
They heard people inside the house, apparently panicking. The police operatives then
forced the door open and entered the house. 7
After showing the search warrant to the occupants of the house, Lt. Cortes and his
group started searching the house. 8 They found 12 small heat-sealed transparent
plastic bags containing a white crystalline substance, a paper clip box also containing
a white crystalline substance, and two bricks of dried leaves which appeared to be
marijuana wrapped in newsprint 9 having a total weight of approximately 1,255
grams. 10 A receipt of the items seized was prepared, but the accused-appellant
refused to sign it. 11
After the search, the police operatives took accused-appellant with them to Station 10,
EDSA, Kamuning, Quezon City, along with the items they had seized. 12

Accused-appellant claimed that he was ordered to stay in one place of the house
while the policemen conducted a search, forcibly opening cabinets and taking his bag
containing money, a licensed .45 caliber firearm, jewelry, and canned goods.17
The policemen left at around 12:30 a.m. of December 27, 1995, and, after putting
handcuffs on accused-appellant, took him with them to the NARCOM on EDSA, Quezon
City, where accused-appellant was detained. 18
Accused-appellant's mother-in law, Soledad Arcano, corroborated his testimony.
Arcano testified that the policemen ransacked their house, ate their food, and took
away canned goods and other valuables. 19
After hearing, the trial court rendered its decision, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered:
1. In Criminal Case No. Q-95-64357, for violation of Sec.
16, Republic Act No. 6425, as amended, finding the accused
ROBERTO SALANGUIT y KO guilty beyond reasonable doubt of the
crime charged and he is hereby accordingly sentenced to suffer
an indeterminate sentence with a minimum of six (6) months
of arresto mayor and a maximum of four (4) years and two (2)
months of prision correccional; and,
2. In Criminal Case No. Q-95-64358, for violation of Sec. 8, Republic
ActNo. 6425, as amended, finding the accused ROBERTO
SALANGUIT y KO guilty beyond reasonable doubt of the crime
charged and he is hereby accordingly sentenced to
suffer reclusion perpetua and to pay a fine of P700,000.00.
The accused shall further pay the costs of suit.

PO3 Duazo requested a laboratory examination of the confiscated evidence. 13The

white crystalline substance with a total weight of 2.77 grams and those contained in a
small box with a total weight of 8.37 grams were found to be positive for
methamphetamine hydrochloride. On the other hand, the two bricks of dried leaves,
one weighing 425 grams and the other 850 grams, were found to be marijuana. 14
For the defense, accused-appellant testified in his own behalf. His testimony was
corroborated by his mother-in-law, Soledad Arcano.
Accused-appellant testified that on the night of December 26, 1995, as they were
about to leave their house, they heard a commotion at the gate and on the roof of
their house. Suddenly, about 20 men in civilian attire, brandishing long firearms, climbed
over the gate and descended through an opening in the roof. 15
When accused-appellant demanded to be shown a search warrant, a piece of paper
inside a folder was waved in front of him. As accused-appellant fumbled for his glasses,
however, the paper was withdrawn and he had no chance to read it. 16

The 11.14 grams of methamphetamine hydrochloride and the

1,254 grams of marijuana bricks are hereby confiscated and
condemned for disposition according to law. The evidence
custodian of this Court is hereby directed to turn such substances
over to the National Bureau of Investigation pursuant to law.
SO ORDERED. 20
Hence this appeal. Accused-appellant contends that
THE COURT A QUO GRAVELY ERRED IN DECLARING THE SEARCH
WARRANT VALID
THE COURT A QUO ERRED IN CONVICTING ACCUSED-APPELLANT
FOR ILLEGAL POSSESSION OF METHAMPHETAMINE HYDROCHLORIDE (SHABU)

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THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSEDAPPELLANT FOR VIOLATION 8, R.A. NO. 6425
THE COURT A QUO ERRED IN ADMITTING IN EVIDENCE THE TWO (2)
BRICKS OF MARIJUANA
THE COURT A QUO ERRED IN NOT FINDING THAT THE POLICEMEN
USED EXCESSIVE FORCE IN ENFORCING THE SEARCH WARRANT.
Accused-appellant is contesting his conviction on three grounds. First, the admissibility of
the shabu allegedly recovered from his residence as evidence against him on the
ground that the warrant used in obtaining it was invalid. Second, the admissibility in
evidence of the marijuana allegedly seized from accused-appellant pursuant to the
"plain view" doctrine. Third, the employment of unnecessary force by the police in the
execution of the warrant.
First. Rule 126, 4 of the Revised Rules on Criminal Procedure 21 provides that a search
warrant shall not issue except upon probable cause in connection with one specific
offense to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the things to be seized which may be
anywhere in the Philippines.
In issuing a search warrant, judges must comply strictly with the requirements of the
Constitution and the Rules of Criminal Procedure. No presumption of regularity can be
invoked in aid of the process when an officer undertakes to justify its
issuance. 22 Nothing can justify the issuance of the search warrant unless all the legal
requisites are fulfilled.
In this case, the search warrant issued against accused-appellant reads:
SEARCH WARRANT NO.
160
For: Violation of RA
6425
SEARCH WARRANT

UNDETERMINED QUANTITY OF SHABU AND DRUG PARAPHERNALIA

which should be seized and brought to the undersigned.
You are hereby commanded to make an immediate search
anytime of the day/night of the premises above-described and
forthwith seize and take possession of the above-stated properties
and bring said properties to the undersigned to be dealt with as
the law directs.
GIVEN UNDER MY HAND this 26th day of December 1995 at Imus,
Cavite, Philippines.
(SGD.) DOLORES L.
ESPAOL
Judge
Accused-appellant assails the validity of the warrant on three grounds: (1) that there
was no probable cause to search for drug paraphernalia; (2) that the search warrant
was issued for more than one specific offense; and (3) that the place to be searched
was not described with sufficient particularity.
Existence of Probable Cause
The warrant authorized the seizure of "undetermined quantity of shabu and drug
paraphernalia." Evidence was presented showing probable cause of the existence of
methamphetamine hydrochloride or shabu. Accused-appellant contends, however,
that the search warrant issued is void because no evidence was presented showing the
existence of drug paraphernalia and the same should not have been ordered to be
seized by the trial court. 23
The contention has no merit. To be sure, SPO1 Edmund Badua, the intelligence officer
who acted as a poseur-buyer, did not testify in the proceedings for the issuance of a
search warrant on anything about drug paraphernalia. He stated:
Q Being a member of the Intelligence and Operation Section,
NMDU, NARCOM, do you remember if you were assigned
into a monitoring or surveillance work?

TO ANY PEACE OFFICER:

GREETINGS:
It appearing to the satisfaction of the undersigned after examining
under oath SR. INSP. RODOLFO V. AGUILAR, PNP and his witness
SPO1 EDMUND M. BADUA, PNP that there is probable cause to
believe that ROBERT SALANGUIT has in his possession and control in
his premises Binhagan St., San Jose, Quezon City as shown in Annex
"A", the properties to wit: TcIAHS

A Yes, sir.
Q Of what particular assignment or area were you assigned for
monitoring or surveillance?
A Its within the Quezon City area particularly a house without
anumber located at Binhagan St., San Jose, Quezon City,
sir.

144

Q Do you know the person who occupies the specific place?

A Yes, sir, he is ROBERT SALANGUIT @ Robert.
Q Are you familiar with that place?
A Yes, sir, as part of my surveillance, I was able to penetrate inside
the area and established contract with ROBERT
SALANGUIT alias Robert through my friend who
introduced me to the former.
Q In what particular occasion did you meet ROBERT SALANGUIT
alias Robert?

afterwards, our Chief formally requested the Chief PNP

Central Crime Laboratory Services, NPDC, for Technical
Analysis which yielded positive result for shabu, a
regulated drug as shown in the attached certification of
PNP CLS result No. D-414-95 dated 19 Dec. 95.
Q Do you have anything more to add or retract from your
statement?
A Yes, sir, I was offered by him (ROBERT SALANGUIT @ Robert) that
anything I wish to buy bigger quantity of shabu, he is
willing to transact to me on cash basis at his price of One
Thousand Seven Hundred Fifty (P1,750.00) pesos per
gram.

A When I was introduced by my friend as a good buyer and drug

pusher of shabu, sir.

Q Are you willing to sign your statement freely and voluntarily?

Q Were you able to buy at that time?

A Yes, sir. 24

A Yes, sir.
Q How much if you can still remember the amount involved?
A I was able to buy two point twelve (2.12) grams of shabu in the
amount of Two Thousand Seven Hundred Fifty (P2,750.00)
pesos, sir.
Q Having established contact with ROBERT SALANGUIT @ Robert,
do you know where the stuff (shabu) were being kept?
A Yes, sir, inside a cabinet inside his room.
Q How were you able to know the place where he kept the stuff?
A When I first bought the 2.12 grams of shabu from him, it was done
inside his room and I saw that the shabu was taken by him
inside his cabinet.
Q Do you know who is in control of the premises?
A Yes, sir, it was ROBERT SALANGUIT @ Robert.
Q How sure are you, that the shabu that you bought from ROBERT
SALANGUIT @ Robert is genuine shabu?
A After I left the house of ROBERT SALANGUIT @ Robert, I
proceeded back to our office and reported the progress
of my mission to our Chief and presented to him the 2.12
grams of shabu I bought from the subject. Then

However, the fact that there was no probable cause to support the application for the
seizure of drug paraphernalia does not warrant the conclusion that the search warrant
is void. This fact would be material only if drug paraphernalia was in fact seized by the
police. The fact is that none was taken by virtue of the search warrant issued. If at all,
therefore, the search warrant is void only insofar as it authorized the seizure of drug
paraphernalia, but it is valid as to the seizure of methamphetamine hydrochloride as to
which evidence was presented showing probable cause as to its existence. Thus,
in Aday v. Superior Court, 25 the warrant properly described two obscene books but
improperly described other articles. It was held:
Although the warrant was defective in the respects noted, it does
not follow that it was invalid as a whole. Such a conclusion would
mean that the seizure of certain articles, even though proper if
viewed separately, must be condemned merely because the
warrant was defective with respect to other articles. The invalid
portions of the warrant are severable from the authorization
relating to the named books, which formed the principal basis of
the charge of obscenity. The search for and seizure of these books,
if otherwise valid, were not rendered illegal by the defects
concerning other articles . . . In so holding we do not mean to
suggest that invalid portions of a warrant will be treated as
severable under all circumstances. We recognize the danger that
warrants might be obtained which are essentially general in
character but as to minor items meet the requirement of
particularity, and that wholesale seizures might be made under
them, in the expectation that the seizure would in any event be
upheld as to the property specified. Such an abuse of the warrant
procedure, of course, could not be tolerated.

145

It would be a drastic remedy indeed if a warrant, which was issued on probable cause
and particularly describing the items to be seized on the basis thereof, is to be
invalidated in toto because the judge erred in authorizing a search for other items not
supported by the evidence. 26 Accordingly, we hold that the first part of the search
warrant, authorizing the search of accused-appellant's house for an undetermined
quantity of shabu, is valid, even though the second part, with respect to the search for
drug paraphernalia, is not.
Specificity of the Offense Charged
Accused-appellant contends that the warrant was issued for more than one specific
offense because possession or use of methamphetamine hydrochloride and possession
of drug paraphernalia are punished under two different provisions of R.A. No. 6425. 27 It
will suffice to quote what this Court said in a similar case to dispose of this contention:
While it is true that the caption of the search warrant states that it is
in connection with "Violation of R.A. 6425, otherwise known as
theDangerous Drugs Act of 1972," it is clearly recited in the text
thereof that "There is probable cause to believe that Adolfo Olaes
alias 'Debie' and alias 'Baby' of No. 628 Comia St., Filtration, Sta.
Rita, Olongapo City, has in their session and control and custody of
marijuana dried stalks/leaves/seeds/cigarettes and other
regulated/prohibited and exempt narcotics preparations which is
the subject of the offense stated above." Although the specific
section of the Dangerous Drugs Act is not pinpointed, there
is no question at all of the specific offense alleged to have been
committed as a basis for the finding of probable cause. The search
warrant also satisfies the requirement in the Bill of Rights of the
particularity of the description to be made of the "place to be
searched and the persons or things to be seized." 28
Indeed, in People v. Dichoso 29 the search warrant was also for "Violation of R.A. 6425,"
without specifying what provisions of the law were violated, and it authorized the search
and seizure of "dried marijuana leaves and methamphetamine hydrochloride (shabu)
and sets of paraphernalias (sic)." This Court, however, upheld the validity of the warrant:
Appellant's contention that the search warrant in question was
issued for more than (1) offense, hence, in violation of Section 3,
Rule 126 of the Rules of Court, is unpersuasive. He engages in
semantic juggling by suggesting that since illegal possession of
shabu, illegal possession of marijuana and illegal possession of
paraphernalia are covered by different articles and sections of
the Dangerous Drugs Act of 1972, the search warrant is clearly for
more than one (1) specific offense. In short, following this theory,
there should have been three (3) separate search warrants, one
for illegal possession of shabu, the second for illegal possession of
marijuana and the third for illegal possession of paraphernalia. This
argument is pedantic. The Dangerous Drugs Act of 1972 is a special
law that deals specifically with dangerous drugs which are
subsumed into "prohibited" and "regulated" drugs and defines and

penalizes categories of offenses which are closely related or which

belong to the same class or species. Accordingly, one (1) search
warrant may thus be validly issued for the said violations of the
Dangerous Drugs Act. 30
Similarly, in another case, 31 the search warrant was captioned: "For Violation ofP.D. No.
1866 (Illegal Possession of Firearms, etc.)." The validity of the warrant was questioned on
the ground that it was issued without reference to any particular provision in P.D. No.
1866, which punished several offenses. We held, however, that while illegal possession of
firearms is penalized under 1 of P.D. No. 1866and illegal possession of explosives is
penalized under 3 thereof, the decree is a codification of the various laws on illegal
possession of firearms, ammunitions, and explosives which offenses are so related as to
be subsumed within the category of illegal possession of firearms, etc. under P.D. No.
1866. Thus, only one warrant was necessary to cover the violations under the various
provisions of the said law.
Particularity of the Place
Accused-appellant contends that the search warrant failed to indicate the place to be
searched with sufficient particularity.
This contention is without merit. As the Solicitor General states:
. . . While the address stated in the warrant is merely "Binhagan St.,
San Jose, Quezon City," the trial court took note of the fact that the
records of Search Warrant Case No. 160 contained several
documents which identified the premises to be searched, to wit: 1)
the application for search warrant which stated that the premises
to be searched was located in between No. 7 and 11 at Binhagan
Street, San Jose, Quezon City; 2) the deposition of witness which
described the premises as "a house without anumber located at
Binhagan St., San Jose, Quezon City; and 3) the pencil sketch of
the location of the premises to be searched. In fact, the police
officers who raided appellant's house under the leadership of
Police Senior Inspector Rodolfo Aguilar could not have been
mistaken as Inspector Aguilar resides in the same neighborhood in
Binhagan where appellant lives and in fact Aguilar's place is at the
end of appellant's place in Binhagan. Moreover, the house raided
by Aguilar's team is undeniably appellant's house and it was really
appellant who was the target. The raiding team even first
ascertained through their informant that appellant was inside his
residence before they actually started their operation. 32

The rule is that a description of the place to be searched is sufficient if the officer with
the warrant can, with reasonable effort, ascertain and identify the place intended to be
searched. 33 For example, a search warrant authorized a search of
Apartment Number 3 of a building at 83 Pleasant Street, Malborough, Massachusetts. As

146

it turned out, there were five apartments in the basement and six apartments on both
the ground and top floors and that there was an Apartment Number 3 on each floor.
However, the description was made determinate by a reference to the affidavit
supporting the warrant that the apartment was occupied by the accused "Morris
Ferrante of 83 Pleasant Street, Malboro Mass." 34 In this case, the location of accusedappellant's house being indicated by the evidence on record, there can be no doubt
that the warrant described the place to be searched with sufficient particularity.
In sum, we hold that with respect to the seizure of shabu from accused-appellant's
residence, Search Warrant No. 160 was properly issued, such warrant being founded on
probable cause personally determined by the judge under oath or affirmation of the
deposing witness and particularly describing the place to be searched and the things to
be seized.
Second. The search warrant authorized the seizure of methamphetamine hydrochloride
or shabu but not marijuana. However, seizure of the latter drug is being justified on the
ground that the drug was seized within the "plain view" of the searching party. This is
contested by accused-appellant.
Under the "plain view doctrine," unlawful objects within the "plain view" of an officer who
has the right to be in the position to have that view are subject to seizure and may be
presented in evidence. 35 For this doctrine to apply, there must be: (a) prior justification;
(b) inadvertent discovery of the evidence; and (c) immediate apparent illegality of the
evidence before the police. 36 The question is whether these requisites were complied
with by the authorities in seizing the marijuana in this case.
Prior Justification and Discovery by Inadvertence
Because the location of the shabu was indicated in the warrant and thus known to the
police operatives, it is reasonable to assume that the police found the packets of
the shabu first. Once the valid portion of the search warrant has been executed, the
"plain view doctrine" can no longer provide any basis for admitting the other items
subsequently found. As has been explained:
What the 'plain view' cases have in common is that the police
officer in each of them had a prior justification for an intrusion in
the course of which he came inadvertently across a piece of
evidence incriminating the accused. The doctrine serves to
supplement the prior justification whether it be a warrant for
another object, hot pursuit, search incident to lawful arrest, or
some other legitimate reason for being present unconnected with
a search directed against the accused and permits the
warrantless seizure. Of course, the extension of the original
justification is legitimate only where it is immediately apparent to
the police that they have evidence before them; the 'plain view'
doctrine may not be used to extend a general exploratory search
from one object to another until something incriminating at last
emerges. 37

The only other possible justification for an intrusion by the police is the conduct of a
search pursuant to accused-appellant's lawful arrest for possession of shabu. However,
a search incident to a lawful arrest is limited to the person of the one arrested and the
premises within his immediate control. 38 The rationale for permitting such a search is to
prevent the person arrested from obtaining a weapon to commit violence, or to reach
for incriminatory evidence and destroy it.AHDcCT
The police failed to allege in this case the time when the marijuana was found, i.e.,
whether prior to, or contemporaneous with, the shabu subject of the warrant, or
whether it was recovered on accused-appellant's person or in an area within his
immediate control. Its recovery, therefore, presumably during the search conducted
after the shabu had been recovered from the cabinet, as attested to by SPO1 Badua in
his deposition, was invalid.
Apparent Illegality of the Evidence
The marijuana bricks were wrapped in newsprint. There was no apparent illegality to
justify their seizure. This case is similar to People v. Musa 39 in which we declared
inadmissible the marijuana recovered by NARCOM agents because the said drugs were
contained in a plastic bag which gave no indication of its contents. We explained:
Moreover, when the NARCOM agents saw the plastic bag hanging
in one corner of the kitchen, they had no clue as to its contents.
They had to ask the appellant what the bag contained. When the
appellant refused to respond, they opened it and found the
marijuana. Unlike Ker v. California, where the marijuana was visible
to the police officer's eyes, the NARCOM agents in this case could
not have discovered the inculpatory nature of the contents of the
bag had they not forcibly opened it. Even assuming then, that the
NARCOM agents inadvertently came across the plastic bag
because it was within their "plain view," what may be said to be the
object in their "plain view" was just the plastic bag and not the
marijuana. The incriminating nature of the contents of the plastic
bag was not immediately apparent from the "plain view" of said
object. It cannot be claimed that the plastic bag clearly betrayed
its contents, whether by its distinctive configuration, is
transparency, or otherwise, that its contents are obvious to an
observer. 40
No presumption of regularity may be invoked by an officer in aid of the process when
he undertakes to justify an encroachment of rights secured by the Constitution. 41 In this
case, the marijuana allegedly found in the possession of accused-appellant was in the
form of two bricks wrapped in newsprint. Not being in a transparent container, the
contents wrapped in newsprint could not have been readily discernible as marijuana.
Nor was there mention of the time or manner these items were discovered. Accordingly,
for failure of the prosecution to prove that the seizure of the marijuana without a
warrant was conducted in accordance with the "plain view doctrine," we hold that the
marijuana is inadmissible in evidence against accused-appellant. However, the
confiscation of the drug must be upheld.

147

Third. Accused-appellant claims that undue and unnecessary force was employed by
the searching party in effecting the raid.

817-837)

Rule 126, 7 of the Revised Rules on Criminal Procedure 42 provides:

29- People v. Damaso, G.R No. 93516, 12 August 1992
Right to break door or window to effect search. The officer, if
refused admittance to the place of directed search after giving
notice of his purpose and authority, may break open any outer or
inner door or window of a house or any part of a house or anything
therein to execute the warrant or liberate himself or any person
lawfully aiding him when unlawfully detained therein.

Accused-appellant's claim that the policemen had clambered up the roof of his house
to gain entry and had broken doors and windows in the process is unsupported by
reliable and competent proof. No affidavit or sworn statement of disinterested persons,
like the barangay officials or neighbors, has been presented by accused-appellant to
attest to the truth of his claim.
In contrast, Aguilar and Duano's claim that they had to use some force in order to gain
entry cannot be doubted. The occupants of the house, especially accused-appellant,
refused to open the door despite the fact that the searching party knocked on the door
several times. Furthermore, the agents saw the suspicious movements of the people
inside the house. These circumstances justified the searching party's forcible entry into
the house, founded as it is on the apprehension that the execution of their mission
would be frustrated unless they do so.
WHEREFORE, in Criminal Case No. Q-95-64357, the decision of the Regional Trial Court,
Branch 96, Quezon City, finding accused-appellant Roberto Salanguit y Ko guilty of
possession of illegal drugs under 16 of R.A. No. 6425, otherwise known as the Dangerous
Drugs Act, as amended, and sentencing him to suffer a prison term ranging from six (6)
months of arresto mayor, as minimum, and four (4) years and two (2) months of prision
correccional, as maximum, and ordering the confiscation of 11.14 grams of
methamphetamine hydrochloride is AFFIRMED.
In Criminal Case No. Q-95-64358, the decision of the same court finding accusedappellant Roberto Salanguit y Ko guilty of possession of prohibited drugs under 8
of R.A. No. 6425, as amended, and sentencing him to suffer the penalty ofreclusion
perpetua and to pay a fine of P700,000.00 is hereby REVERSED and SET ASIDE and
accused-appellant is ACQUITTED of the crime charged. However, the confiscation of
the 1,254 grams of marijuana, as well as the 11.14 grams of methamphetamine
hydrochloride, and its disposition as ordered by the trial court is AFFIRMED.
SO ORDERED. TaCDIc
Bellosillo, Quisumbing, Buena and De Leon, Jr., JJ., concur
||| (People v. Salanguit y Ko, G.R. Nos. 133254-55, [April 19, 2001], 408 PHIL

FIRST DIVISION
[G.R. No. 93516. August 12, 1992.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BASILIO
DAMASO @ Bernardo/BERNIE MENDOZA @ KA DADO, accusedappellant.
The Solicitor General for plaintiff-appellee.
DECISION
MEDIALDEA, J p:
The accused-appellant, Basilio Damaso, was originally charged in an information filed
before the Regional Trial Court of Dagupan City with violation of Presidential Decree No.
1866 in furtherance of, or incident to, or in connection with the crime of subversion,
together with Luzviminda Morados y Galang @ Ka Mel, Teresita Calosa y Macabangon
@ Ka Tessie, Ricardo Calosa y Perez @ Ka Ric, Marites Calosa y Evangelista @ Ka Tess,
Eric Tanciangco y Capira @ Ka Ric and Luz Tanciangco y Pencial @ Ka Luz (Records, p.
3). Such information was later amended to exclude all the above-enumerated persons
except the accused-appellant from the criminal charge. The amended information
reads:
"That on or about the 19th day of June, 1988, in the City of
Dagupan, Philippines, and within the territorial jurisdiction of this
Honorable Court, the above-named accused, Basilio DAMASO @
Bernardo/Bernie Mendoza @ KA DADO, did then and there, wilfully,
unlawfully and criminally, have in his possession, custody and
control one (1) M14 Rifle bearing SerialNo. 1249935 with magazine
and Fifty-Seven (57) live ammunition, in furtherance of, or incident
to, or in connection with the crime of subversion, filed against said
accused in the above-entitled case for Violation of Republic Act
1700, as amended by Executive order No. 276. prLL
"Contrary to Third Paragraph of Sec. 1, P.D. 1866." (Records, p. 20)
Upon arraignment, the accused-appellant pleaded not guilty to the crime charged
(Records, p. 37). Trial on the merits ensued. The prosecution rested its case and offered
its exhibits for admission. The counsel for accused-appellant interposed his objections to
the admissibility of the prosecution's evidence on grounds of its being hearsay,

148

immaterial or irrelevant and illegal for lack of a search warrant. On these bases, he,
thereafter, manifested that he was not presenting any evidence for the accused (TSN,
December 28, 1989, p. 139). On January 17, 1990, the trial court rendered its decision,
the dispositive portion of which states:
"WHEREFORE, the Court finds accused Basilio Damaso alias
Bernardo/Bernie Mendoza alias Ka Dado guilty beyond reasonable
doubt of Violation of Presidential Decree Number 1866, and
considering that the Violation is in furtherance of, or incident to, or
in connection with the crime of subversion, pursuant to Section 1,
Paragraph 3 of Presidential Decree Number 1866 hereby sentences
the accused to suffer the penalty of Reclusion Perpetua and to
pay the costs of the proceedings.
"The M14 Rifle bearing Serial Number 1249935 and live ammunition
and all the articles and/or items seized on June 19, 1988 in
connection with this case and marked and submitted in court as
evidence are ordered confiscated and forfeited in favor of the
government, the same to be turned over to the Philippine
Constabulary Command at Lingayen, Pangasinan.
"SO ORDERED." (Rollo, p. 31)
Thus, this present recourse with the following assignment of errors:
A. THE TRIAL COURT ERRED IN FINDING ACCUSED APPELLANT GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME OF ILLEGAL POSSESSION OF FIREARMS AND
AMMUNITIONS IN FURTHERANCE OF, OR INCIDENT TO, OR IN CONNECTION WITH THE
CRIME OF SUBVERSION DESPITE THE WOEFULLY INADEQUATE EVIDENCE PRESENTED BY THE
PROSECUTION.
B. THE COURT ERRED IN CONVICTING THE ACCUSED WHEN THE QUALIFYING
CIRCUMSTANCES OF SUBVERSION WAS NOT PROVEN BY THE PROSECUTION.
C. THE LOWER COURT ERRED IN CONSIDERING AS EVIDENCE THE FIREARMS DOCUMENTS
AND ITEMS LISTED IN EXHIBIT E AFTER THEY WERE DECLARED INADMISSIBLE WITH FINALITY BY
ANOTHER BRANCH OF THE SAME COURT AND THE SAID EVIDENCE ARE THE FRUITS OF AN
ILLEGAL SEARCH.
D. THE TRIAL COURT ERRED IN DENYING THE MOTIONS TO QUASH FILED BY ACCUSEDAPPELLANT BECAUSE THE SEPARATE CHARGE FOR SUBVERSION AGAINST HIM ABSORBED
THE CHARGE FOR ILLEGAL POSSESSION OF FIREARMS IN FURTHERANCE OR OF INCIDENT
TO, OR IN CONNECTION WITH THE CRIME OF SUBVERSION." (pp. 55-66, Rollo)
The antecedent facts are set forth by the Solicitor General in his Brief, as follows:
"On June 18, 1988, Lt. Candido Quijardo, a Philippine Constabulary
officer connected with the 152nd PC Company at Lingayen,
Pangasinan, and some companions were sent to verify the

presence of CPP/NPA members in Barangay Catacdang, ArellanoBani, Dagupan City. In said place, the group apprehended
Gregorio Flameniano, Berlina Aritumba, Revelina Gamboa and
Deogracias Mayaoa. When interrogated, the persons
apprehended revealed that there was an underground safehouse
at Gracia Village in Urdaneta, Pangasinan. After coordinating with
the Station Commander of Urdaneta, the group proceeded to the
house in Gracia Village. They found subversive documents, a radio,
a 1 x 7 caliber .45 firearm and other items (pp. 4, 6-7, tsn, October
23, 1989). LLpr
"After the raid, the group proceeded to Bonuan, Dagupan City,
and put under surveillance the rented apartment of Rosemarie
Aritumba, sister of Berlina Aritumba whom they earlier arrested.
They interviewed Luzviminda Morados, a visitor of Rosemarie
Aritumba. She stated that she worked with Bernie Mendoza, herein
appellant. She guided the group to the house rented by appellant.
When they reached the house, the group found that it had
already been vacated by the occupants. Since Morados was
hesitant to give the new address of Bernie Mendoza, the group
looked for the Barangay Captain of the place and requested him
to point out the new house rented by appellant. The group again
required Morados to go with them. When they reached the house,
the group saw Luz Tanciangco outside. They told her that they
already knew that she was a member of the NPA in the area. At
first, she denied it, but when she saw Morados she requested the
group to go inside the house. Upon entering the house, the group,
as well as the Barangay Captain, saw radio sets, pamphlets
entitled 'Ang Bayan', xerox copiers and a computer machine. They
also found persons who were companions of Luz Tanciangco
(namely, Teresita Calosa, Ricardo Calosa, Marites Calosa, Eric
Tanciangco and Luzviminda Morados). The group requested the
persons in the house to allow them to look around. When Luz
Tanciangco opened one of the rooms, they saw books used for
subversive orientation, one M-14 rifle, bullets and ammunitions,
Kenwood radio, artificial beard, maps of the Philippines, Zambales,
Mindoro an(d) Laguna and other items. They confiscated the
articles and brought them to their headquarters for final inventory.
They likewise brought the persons found in the house to the
headquarters for investigation. Said persons revealed that
appellant was the lessee of the house and owned the items
confiscated therefrom (pp. 8-12, tsn, ibid; pp. 2-4, 6, 8-10, 31, tsn,
October 31, 1989)." (p. 5, Brief of Plaintiff-Appellee, p. 91, Rollo)
While We encourage and support law enforcement agencies in their drive against
lawless elements in our society, We must, however, stress that the latter's efforts to this
end must be done within the parameters of the law. In the case at bar, not only did We
find that there are serious flaws in the method used by the law officers in obtaining
evidence against the accused-appellant but also that the evidence as presented
against him is weak to justify conviction.

149

We reverse.

"Q: That underground house, do you know who was the principal
occupant of that house?

The records of this case show that the accused-appellant was singled out as the sole
violator of P.D. No. 1866, in furtherance of, or incident to, or in connection with the crime
of subversion. Yet, there is no substantial and credible evidence to establish the fact
that the appellant is allegedly the same person as the lessee of the house where the M14 rifle and other subversive items were found or the owner of the said items. The
prosecution presented two witnesses who attested to this fact, thus:
"Lieutenant Candito Quijardo
Fiscal
"Q: How about this Bernie Mendoza, who was the one renting the
house?
"A: He was not around at that time, but according to Luz
(Tanciangco) who mentioned the name Bernie Mendoza
(as) the one who was renting the house and at the same
time claiming that it was Bernie Mendoza who owns the
said items." (TSN of October 31, 1989, p. 40)
xxx xxx xxx
"Q: I am showing you another picture which we request to be
marked as Exhibit 'K-2,' tell us if it has any connection to
the house?
"A: The same house, sir.
"Q: Now, this person who according to you allegedly occupied the
house at Bonuan Gueset, by the name of Bernie
Mendoza, in your capacity as a Military officer, did you
find out the identity?
"A: I am not the proper (person) to tell the real identity of Bernie de
Guzman. Cdpr
"Q: Can you tell the Honorable Court the proper person who could
tell the true identity of Bernie Mendoza?
"A: The Intelligence of the Pangasinan PC Command.
"Q: Can you name these officers?
"A: Captain Roberto Rosales and his assistant, First Lt. Federico
Castro. (ibid, pp. 54-55)
"M/Sgt. Artemio Gomez

xxx xxx xxx

"A: During our conversation with the occupants, they revealed that
a certain Ka Bernie is the one occupying the house,
Bernie Mendoza alias Basilio Damaso.
" . . . (TSN, December 27, 1989, pp. 126-128)
Clearly, the aforequoted testimonies are hearsay because the witnesses testified on
matters not on their own personal knowledge. The Solicitor General, however,
argues that while the testimonies may be hearsay, the same are admissible
because of the failure of counsel for appellant to object thereto.

It is true that the lack of objection to a hearsay testimony results in its being admitted as
evidence. But, one should not be misled into thinking that since these testimonies are
admitted as evidence, they now have probative value. Hearsay evidence, whether
objected to or not, cannot be given credence. In People v. Valero, We emphatically
declared that:
"The failure of the defense counsel to object to the presentation of
incompetent evidence, like hearsay evidence or evidence that
violates the rule of res inter alios acta, or his failure to ask for the
striking out of the same does not give such evidence any probative
value. The lack of objection may make any incompetent evidence
admissible. Butadmissibility of evidence should not be equated
with weight of evidence.Hearsay evidence whether objected to or
not has no probative value." (L-45283-84, March 19, 1982, 112 SCRA
675, italics supplied)
It is unfortunate that the prosecution failed to present as witnesses the persons who
knew the appellant as the lessee and owner of the M-14 rifle. In this way, the
appellant could have exercised his constitutional right to confront the witnesses
and to cross-examine them for their truthfulness. Likewise, the records do not show
any other evidence which could have identified the appellant as the lessee of the
house and the owner of the subversive items. To give probative value to these
hearsay statements and convict the appellant on this basis alone would be to
render his constitutional rights useless and without meaning.
Even assuming for the sake of argument that the appellant is the lessee of the house,
the case against him still will not prosper, the reason being that the law enforcers failed
to comply with the requirements of a valid search and seizure proceedings. prLL
The right against unreasonable searches and seizures is enshrined in theConstitution
Article III, Section 2. The purpose of the law is to prevent violations of private security in

150

person and property, and unlawful invasions of the sanctity of the home by officers of
the law acting under legislative or judicial sanction and to give remedy against such
usurpations when attempted (see Rivero v. Dizon, 76 Phil. 637, 646). However, such right
is not absolute. There are instances when a warrantless search and seizure becomes
valid, namely: (1) search incidental to an arrest; (2) search of a moving vehicle, and (3)
seizure of evidence in plain view (Manipon, Jr. v. Sandiganbayan, L-58889, July 31, 1986,
143 SCRA 267, 267). None of these exceptions is present in this case.
The Solicitor General argues otherwise. He claims, that the group of Lt. Quijardo entered
the appellant's house upon invitation of Luz Tanciangco and Luzviminda Morados,
helper of the appellant; that when Luz Tanciangco opened one of the rooms, they saw
a copier machine, computer, M-14 rifle, bullets and ammunitions, radio set and more
subversive items, that technically speaking, there was no search as the group was
voluntarily shown the articles used in subversion; that besides, a search may be validly
conducted without a search warrant with the consent of the person searched as in this
case, appellant's helper and Luz Tanciangco allowed them to enter and to look around
the appellant's house; and that since the evidence seized was in plain view of the
authorities, the same may be seized without a warrant.
We are not persuaded. The constitutional immunity from unreasonable searches and
seizures, being a personal one cannot he waived by anyone except the person whose
rights are invaded or one who is expressly authorized to do so in his or her behalf (De
Garcia v. Locsin, 65 Phil. 689 695). In the case at bar, the records show that appellant
was not in his house at that time Luz Tanciangco and Luz Morados, his alleged helper,
allowed the authorities to enter it (TSN, October 31, 1989, p. 10). We find no evidence
that would establish the fact that Luz Morados was indeed the appellant's helper, or if it
was true that she was his helper, that the appellant had given her authority to open his
house in his absence. The prosecution likewise failed to show if Luz Tanciangco has such
an authority. Without this evidence, the authorities' intrusion into the appellant's dwelling
cannot be given any color of legality. While the power to search and seize is necessary
to the public welfare, still it must be exercised and the law enforced without
transgressing the constitutional rights of the citizens, for the enforcement of no statute is
of sufficient importance to justify indifference to the basic principles of government
(Rodriguez v. Evangelista, 65 Phil. 230, 235). As a consequence, the search conducted
by the authorities was illegal. It would have been different if the situation here
demanded urgency which could have prompted the authorities to dispense with a
search warrant. But the record is silent on this point. The fact that they came to the
house of the appellant at nighttime (Exh. J, p. 7, Records), does not grant them the
license to go inside his house. In Alih v. Castro, We ruled that:
"The respondents cannot even plead the urgency of the raid
because it was in fact not urgent. They knew where the petitioners
were. They had every opportunity to get a search warrant before
making the raid. If they were worried that the weapons inside the
compound would be spirited away, they could have surrounded
the premises in the meantime, as a preventive measure. There was
absolutely no reason at all why they should disregard the orderly
processes required by the Constitution and instead insist on
arbitrarily forcing their way into the petitioner's premises with all the

menace of a military invasion." (G.R. No. 69401, June 23, 1987, 151
SCRA 279, 286)
Another factor which illustrates the weakness of the case against the accusedappellant is in the identification of the gun which he was charged to have illegally
possessed. In the amended information (supra, pp. 1-2), the gun was described as an
M-14 rifle with serial no. 1249935. Yet, the gun presented at the trial bore a different
serial number thus:
"FISCAL:
Q. Will you kindly restate again the items that you found inside the
house? Lt. Quijardo:
A. When she opened the doors of the rooms that we requested for,
we immediately saw different kinds of books of which we
believed to be used for subversive orientation and the M14 rifle. prcd"
Q. In what portion of the house did you find this M-14 rifle which
you mentioned?
A. In the same room of which the subversive documents were
placed.
Q. If this firearm would be shown to you would you be able to
identify the same?
A. Yes, sir.
Q. I am showing to you a rifle bearing
a serial number 1249985 which for purposes of
identification, may we request your Honor, that this rifle
be marked as Exhibit 'D.'
COURT:
Mark it.
"FISCAL:
Q. Kindly examine the said firearm and tell the Honorable Court the
relation of that firearm to the firearm which according to
you found inside the room allegedly occupied by one
Bernie Mendoza?
A. This is the same rifle which was discovered during our raid in the
same house." (TSN, October 31, 1989, pp. 36-38, italics
supplied)

151

The Solicitor General contends that the discrepancy is merely a typographical error.
We do not think so. This glaring error goes into the substance of the charge. Its
correction or lack of it could spell the difference between freedom and incarceration of
the accused-appellant.
In crimes of illegal possession of firearm as in this case, the prosecution has the burden to
prove the existence of the firearm and that the accused who possessed or owned the
firearm does not have the corresponding license for it. Since the gun as identified at the
trial differs from the gun described in the amended information, the corpus delicti (the
substance of the crime, the fact that a crime has actually been committed) has not
been fully established. This circumstance coupled with dubious claims of appellant's
connection to the house (where the gun was found) have totally emasculated the
prosecution's case.
But even as We find for the accused-appellant, We, take exception to the argument
raised by the defense that the crime of subversion absorbs the crime of illegal
possession of firearm in furtherance of or incident to or in connection with the crime of
subversion. It appears that the accused-appellant is facing a separate charge of
subversion. The defense submits that the trial court should have peremptorily dismissed
this case in view of the subversion charge. In People of the Philippines v. Asuncion, et al.,
We set forth in no uncertain terms the futility of such argument. We quote:
"If We are to espouse the theory of the respondents that force and
violence are the very essence of subversion, then it loses its
distinction from rebellion. In People v. Liwanag (G.R. No. 27683,
1976, 73 SCRA 473, 480 [1976])., the Court categorically
distinguished subversion from rebellion, and held:
'Violation of Republic Act No. 1700, or
subversion, as it is more commonly called, is a crime
distinct from that of actual rebellion. The crime of
rebellion is committed by rising publicly and taking up
arms against the Government for any of the purposes
specified in Article 134 of the Revised Penal Code; while
the Anti-Subversion Act (Republic Act No. 1700)
punishes affiliation or membership in a subversive
organization as defined therein. In rebellion, there must he
a public uprising and taking of arms against the
Government; whereas, in subversion, mere membership in
a subversive association is sufficient and the taking up of
arms by a member of a subversive organization against
the Government is but a circumstance which raises the
penalty to be imposed upon the offender.' (Italics
supplied)
"Furthermore, in the case of Buscayno v. Military Commission
(G.R.58284, 109 SCRA 289 [1981]), this Court said that subversion,
like treason, is a crime against national security, while rebellion is a

crime against public order. Rising publicly and taking arms against
the Government is the very element of the crime of rebellion. On
the other hand, R.A. 1700was enacted to outlaw the Communist
Party of the Philippines (CPP), other similar associations and its
successors because their existence and activities constitute a
clear, present and grave danger to national security.
"The first Whereas clause of R.A. 1700 states that the CPP is an
organized conspiracy to overthrow the Government, not only by
force and violence but also by deceit, subversion and other illegal
means. This is a recognition that subversive acts do not only
constitute force and violence (contrary to the arguments of private
respondents), but may partake of other forms as well. One may in
fact be guilty of subversion by authoring subversive materials,
where force and violence is neither necessary or
indispensable." llcd
"Private respondents contended that the Court in Misolas v. Panga
impliedly ruled that if an accused is simultaneously charged with
violation of P.D. 1866 and subversion, the doctrine of absorption of
common crimes as applied in rebellion could have found
application therein. The respondents relied on the opinion of this
Court when it said:
' . . . in the present case, petitioner is being
charged specifically for the qualified offense of illegal
possession of firearms and ammunition under PD 1866. HE
IS NOT BEING CHARGED WITH THE COMPLEX CRIME OF
SUBVERSION WITH ILLEGAL POSSESSION OF FIREARMS.
NEITHER IS HE BEING SEPARATELY CHARGED FOR
SUBVERSION AND FOR ILLEGAL POSSESSION OF FIREARMS.
Thus, the rulings of the Court inHernandez,
Geronimo and Rodriguez find no application in this case.'
"This is however a mere obiter. In the above case, the Court upheld
the validity of the charge under the third paragraph of Section 1
of P.D. 1866. The Court opined that the dictum in the Hernandez
case is not applicable in that case, considering that the legislature
deemed it fit to provide for two distinct offenses: (1) illegal
possession of firearms qualified by subversion (P.D. 1866 and (2)
subversion qualified by the taking up of arms against the
Government (R.A. 1700). `The practical result of this may be harsh
or it may pose grave difficulty on an accused in instances similar to
those that obtain in the present case, but the wisdom of the
legislature in the lawful exercise of its power to enact laws is
something that the Court cannot inquire into . . . " (G.R. Nos. 8383742, April 22, 1992)

152

Nonetheless, the evidence in hand is too weak to convict the accused-appellant of the
charge of illegal possession of firearm in furtherance of, or incident to or in connection
with the crime of subversion, We are therefore, left with no option, but to acquit the
accused on reasonable doubt. ACCORDINGLY, the decision appealed from is hereby
REVERSED and the appellant is ACQUITTED with costsde oficio.

one
(1)
small
plastic
bag
containing
Methamphetamine Hydrochloride weighing more
or less fifteen (15) grams, which is a regulated
drug, without any authority whatsoever.
Criminal Case No. 96-513 2

SO ORDERED.
Grio-Aquino and Bellosillo, JJ ., concur.
Cruz, J., concurs.
||| (People v. Damaso, G.R. No. 93516, [August 12, 1992])

30- People v. Sy, G.R. No. 136066-67, 4 February 2003

FIRST DIVISION
[G.R. Nos. 136066-67. February 4, 2003.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
BINAD SY CHUA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Ola & Asso. Law Offices for accused-appellant.
DECISION
YNARES-SANTIAGO, J p:
Accused-appellant Binad Sy Chua was charged with violation of Section 16, Article III
of R.A. 6425, as amended by R.A. 7659, and for Illegal Possession of ammunitions in two
separate Informations which read as follows:
Criminal Case No. 96-507 1
That on or about the 21st day of September 1996,
in the City of Angeles, Philippines, and within the
jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully,
unlawfully and feloniously have in his possession
and under his control two (2) plastic bags
containing
Methamphetamine
Hydrochloride
(SHABU) weighing more or less two (2) kilos and

That on or about the 21st day of September 1996,

in the City of Angeles, Philippines, and within the
jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully,
unlawfully and feloniously have in his possession
and under his control twenty (20) pieces of live .22
cal. ammunitions, without first having obtained a
license or permit to possess or carry the same.
Accused-appellant pleaded "not guilty" on arraignment. The two cases were then jointly
tried.
The prosecution presented three (3) witnesses, all members of the police force of
Angeles City. Their testimonies can be synthesized as follows:
On September 21, 1996, at around 10:00 in the evening, SPO2 Mario Nulud and PO2
Emmeraldo Nunag received a report from their confidential informant that accusedappellant was about to deliver drugs that night at the Thunder Inn Hotel in Balibago,
Angeles City. The informer further reported that accused-appellant distributes illegal
drugs in different karaoke bars in Angeles City. On the basis of this lead, the PNP Chief of
Angeles City, Col. Neopito Gutierrez, immediately formed a team of operatives
composed of Major Bernardino, Insp. Tullao, Insp. Emmanuel Nunag, PO2 Emmeraldo
Nunag, SPO1 Fernando Go, and some civilian assets, with SPO2 Mario Nulud, as team
investigator. The group of SPO2 Nulud, PO2 Nunag and the civilian informer positioned
themselves across McArthur Highway near Bali Hai Restaurant, fronting Thunder Inn
Hotel. The other group acted as their back up.
At around 11:45 in the evening, their informer pointed to a car driven by accusedappellant which just arrived and parked near the entrance of the Thunder Inn Hotel.
After accused-appellant alighted from the car carrying a sealed Zest-O juice box, SPO2
Nulud and PO2 Nunag hurriedly accosted him and introduced themselves as police
officers. As accused-appellant pulled out his wallet, a small transparent plastic bag with
a crystalline substance protruded from his right back pocket. Forthwith, SPO2 Nulud
subjected him to a body search which yielded twenty (20) pieces of live .22 caliber
firearm bullets from his left back pocket. When SPO2 Nunag peeked into the contents of
the Zest-O box, he saw that it contained a crystalline substance. SPO2 Nulud instantly
confiscated the small transparent plastic bag, the Zest-O juice box, the twenty (20)
pieces of .22 caliber firearm bullets and the car used by accused-appellant. Afterwards,
SPO2 Nulud and the other police operatives who arrived at the scene brought the
confiscated items to the office of Col. Gutierrez at the PNP Headquarters in Camp
Pepito, Angeles City.3

153

When Col. Gutierrez opened the sealed Zest-O juice box, he found 2 big plastic bags
containing crystalline substances. The initial field test conducted by SPO2 Danilo Cruz at
the PNP Headquarters revealed that the seized items contained shabu. 4Thereafter,
SPO2 Nulud together with accused-appellant brought these items for further laboratory
examination to the Crime Laboratory at Camp Olivas, San Fernando, Pampanga. After
due testing, forensic chemist S/Insp. Daisy Babor concluded that the crystalline
substances yielded positive results for shabu. The small plastic bag weighed 13.815
grams while the two big plastic bags weighed 1.942 kilograms ofshabu. 5

and is hereby sentenced to suffer the

penalty ofreclusion perpetua and to pay
a fine of One Million (P1,000,000.00)
Pesos.
SO ORDERED. 9
Hence, the instant appeal where accused-appellant raised the following errors:

Accused-appellant vehemently denied the accusation against him and narrated a

different version of the incident.

THE TRIAL COURT ERRED

FOLLOWING FINDINGS:

Accused-appellant alleged that on the night in question, he was driving the car of his
wife to follow her and his son to Manila. He felt sleepy, so he decided to take the old
route along McArthur Highway. He stopped in front of a small store near Thunder Inn
Hotel in Balibago, Angeles City to buy cigarettes and candies. While at the store, he
noticed a man approach and examine the inside of his car. When he called the
attention of the onlooker, the man immediately pulled out a .45 caliber gun and made
him face his car with raised hands. The man later on identified himself as a policeman.
During the course of the arrest, the policeman took out his wallet and instructed him to
open his car. He refused, so the policeman took his car keys and proceeded to search
his car. At this time, the police officer's companions arrived at the scene in two cars.
PO2 Nulud, who just arrived at the scene, pulled him away from his car in a nearby
bank, while the others searched his car.

A. THE ARREST OF ACCUSED-APPELLANT BINAD SY

CHUA WAS LAWFUL;

Thereafter, he was brought to the Salakot Police Station and was held inside a
bathroom for about fifteen minutes until Col. Gutierrez arrived, who ordered his men to
call the media. In the presence of reporters, Col. Gutierrez opened the box and
accused-appellant was made to hold the box while pictures were being taken. 6
Wilfredo Lagman corroborated the story of the accused-appellant in its material points.
He testified that he witnessed the incident while he was conducting a routine security
check around the premises of the Guess Building, near Thunder Inn Hotel. 7
On September 15, 1998 the Regional Trial Court of Angeles City, Branch 59, rendered a
decisions, 8 the dispositive portion of which reads:
WHEREFORE, the foregoing considered, judgment
is hereby rendered as follows:
1. In Criminal Case No. 96-513 for Illegal Possession
of Ammunitions, the accused is hereby
acquitted of the crime charged for
insufficiency of evidence.
2. In Criminal Case No. 96-507 for Illegal Possession
of 1,955.815 grams ofshabu, accused
Binad Sy Chua is found GUILTY beyond
reasonable doubt of the crime charge

B. THE

GRAVELY

IN

ITS

SEARCH OF HIS PERSON AND THE

SUBSEQUENT
CONFISCATION
OFSHABU ALLEGEDLY FOUND ON HIM
WERE CONDUCTED IN A LAWFUL AND
VALID MANNER;

C. THE PROSECUTION EVIDENCE SUPPORTING THE

CRIME CHARGED IS SUFFICIENT TO PROVE
THE GUILT OF THE ACCUSED-APPELLANT
BEYOND REASONABLE DOUBT. 10
Accused-appellant maintains that the warrantless arrest and search made by the
police operatives was unlawful; that in the light of the testimony of SPO2 Nulud that prior
to his arrest he has been under surveillance for two years, there was
therefore no compelling reason for the haste within which the arresting officers sought
to arrest and search him without a warrant; that the police officers had sufficient
information about him and could have easily arrested him. Accused-appellant further
argues that since his arrest was null and void, the drugs that were seized should likewise
be inadmissible in evidence since they were obtained in violation of his constitutional
rights against unreasonable search and seizures and arrest.
Accused-appellant's argument is impressed with merit.
Although the trial court's evaluation of the credibility of witnesses and their testimonies is
entitled to great respect and will not be disturbed on appeal, however, this rule is not a
hard and fast one.
It is a time-honored rule that the assessment of the
trial court with regard to the credibility of witnesses
deserves the utmost respect, if not finality, for the
reason that the trial judge has the prerogative,
denied to appellate judges, of observing the
demeanor of the declarants in the course of their
testimonies. The only exception is if there is a

154

showing that the trial judge overlooked,

misunderstood, or misapplied some fact or
circumstance of weight and substance that would
have affected the case. 11
In the case at bar, there appears on record some facts of weight and substance that
have been overlooked, misapprehended, or misapplied by the trial court which casts
doubt on the guilt of accused-appellant. An appeal in a criminal case opens the whole
case for review and this includes the review of the penalty and indemnity imposed by
the trial court. 12 We are clothed with ample authority to review matters, even those not
raised on appeal, if we find that their consideration is necessary in arriving at a just
disposition of the case. Every circumstance in favor of the accused shall be
considered. 13 This is in keeping with the constitutional mandate that every accused
shall be presumed innocent unless his guilt is proven beyond reasonable doubt.
First, with respect to the warrantless arrest and consequent search and seizure made
upon accused-appellant, the court a quomade the following findings:
Accused was searched and arrested while in
possession of regulated drugs (shabu). A crime
was actually being committed by the accused
and he was caughtin flagrante delicto. Thus, the
search made upon his personal effects . . . allow a
warrantless search incident to a lawful arrest. . . .
While it is true that the police officers were not
armed with a search warrant when the search was
made over the personal affects (sic) of the
accused, however, under the circumstances of
the case, there was sufficient probable cause for
said officers to believe that accused was then and
there committing a crime.
xxx xxx xxx
In the present case, the police received
information that the accused will distribute illegal
drugs that evening at the Thunder Inn Hotel and its
vicinities. The police officer had to act quickly and
there was nomore time to secure a search
warrant. The search is valid being akin to a "stop
and frisk".14
A thorough review of the evidence on record belies the findings and conclusion of the
trial court. It confused the two different concepts of a search incidental to a lawful
arrest (in flagrante delicto) and of a "stop-and-frisk."
In Malacat v. Court of Appeals, 15 we distinguished the concepts of a "stop-and-frisk"
and of a search incidental to a lawful arrest, to wit:

At the outset, we note that the trial court confused

the concepts of a "stop-and-frisk" and of a search
incidental to a lawful arrest. These two types of
warrantless searches differ in terms of the requisite
quantum of proof before they may be validly
effected and in their allowable Scope.
In a search incidental to a lawful arrest, as the
precedent arrest determines the validity of the
incidental search, the legality of the arrest is
questioned in a large majority of these
cases,e.g., whether an arrest was merely used as a
pretext for conducting a search. In this
instance, the law requires that there first be arrest
before a search can be madethe process
cannot be reversed. At bottom, assuming a valid
arrest, the arresting officer may search the person
of the arrestee and the area within which the
latter may reach for a weapon or for evidence to
destroy, and seize any money or property found
which was used in the commission of the crime, or
the fruit of the crime, or that which may be used as
evidence, or which might furnish the arrestee with
the means of escaping or committing violence.
xxx xxx xxx
We now proceed to the justification for and
allowable scope of a "stop-and-frisk" as a"limited
protective search of outer clothing for weapons,"
as laid down in Terry, thus:
We merely hold today
thatwhere a police officer
observes unusual conductwhich
leads
him
reasonably
to
conclude
in
light of
his
experience that criminal activity
may be afoot and that the
persons with whom he is dealing
may be armed and presently
dangerous, where in the course
of investigating this behavior he
identifies himself as a policeman
and
makes
reasonable
inquiries, and where nothing in
the
initial stages
of
the
encounter serves to dispel his
reasonable fear for his own or
others' safety, he is entitled for

155

the protection of himself and

others in the area to conduct a
carefully limited search of the
outer clothing of such persons in
an
attempt
to
discover
weapons which might be used
to assault him. Such a search is
a reasonable search under the
Fourth amendment.
Other notable points of Terry are that while
probable cause is not required to conduct a "stopand-frisk," it nevertheless holds thatmere suspicion
or a hunch will not validate a "stop-and-frisk." A
genuine reason must exist, in light of the police
officer's experience and surrounding conditions, to
warrant the belief that the person detained has
weapons concealed about him.Finally, a "stopand-frisk" serves a two-fold interest: (1) the general
interest of effective crime prevention and
detection, which underlies the recognition that a
police
officer
may,
under
appropriate
circumstances and in an appropriate manner,
approach a person for purposes of investigating
possible criminal behavior even without probable
cause; and (2) the more pressing interest of safety
and self-preservation which permit the police
officer to take steps to assure himself that the
person with whom he deals is not armed with a
deadly weapon that could unexpectedly and
fatally
be
used
against
the
police
officer. 16(Emphasis ours)
In the case at bar, neither the in flagrante delicto nor the "stop and frisk" principles is
applicable to justify the warrantless arrest and consequent search and seizure made by
the police operatives on accused-appellant.
In in flagrante delicto arrests, the accused is apprehended at the very moment he is
committing or attempting to commit or has just committed an offense in the presence
of the arresting officer. Emphasis should be laid on the fact that the law requires that the
search be incidental to a lawful arrest.Therefore it is beyond cavil that a lawful arrest
must precede the search of a person and his belongings. 17 Accordingly, for this
exception to apply two elements must concur: (1) the person to be arrested must
execute an overt act indicating that he has just committed, is actually committing, or is
attempting to commit a crime; and (2) such overt act is done in the presence or within
the view of the arresting officer. 18
We find the two aforementioned elements lacking in the case at bar. The record reveals
that when accused-appellant arrived at the vicinity of Thunder Inn Hotel, he merely
parked his car along the McArthur Highway, alighted from it and casually proceeded

towards the entrance of the Hotel clutching a sealed Zest-O juice box. Accusedappellant did not act in a suspicious manner. For all intents and purposes, there
was no overt manifestation that accused-appellant has just committed, is actually
committing, or is attempting to commit a crime.
However, notwithstanding the absence of any overt act strongly manifesting a violation
of the law, the group of SPO2 Nulud "hurriedly accosted" 19 accused-appellant and
later on "introduced themselves as police officers." 20 Accused-appellant was arrested
before the alleged drop-off ofshabu was done. Probable cause in this case was more
imagined than real. Thus, there could have been no in flagrante delictoarrest preceding
the search, in light of the lack of an overt physical act on the part of accused-appellant
that he had committed a crime, was committing a crime or was going to commit a
crime. As applied to in flagrante delicto arrests, it has been held that "reliable
information" alone, absent any overt act indicative of a felonious enterprise in the
presence and within the view of the arresting officers, is not sufficient to constitute
probable cause that would justify an in flagrante delicto arrest. 21 Hence, inPeople
v. Amminudin, 22 we ruled that "theaccused-appellant was not, at the moment of his
arrest, committing a crime nor was it shown that he was about to do so or that he had
just done so. What he was doing was descending the gangplank of the M/V Wilcon 9
and there was no outward indication that called for his arrest. To all appearances, he
was like any of the other passengers innocently disembarking from the vessel. It was only
when the informer pointed to him as the carrier of the marijuana that he suddenly
became suspect and so subject to apprehension" (Emphasis supplied).
The reliance of the prosecution in People v.Tangliben 23 to justify the police's actions is
misplaced. In the said case, based on the information supplied by informers, police
officers conducted a surveillance at the Victory Liner Terminal compound in San
Fernando, Pampanga against persons who may commit misdemeanors and also on
those who may be engaged in the traffic of dangerous drugs. At 9:30 in the evening,
the policemen noticed a person carrying a red travelling bag who was acting
suspiciously. They confronted him and requested him to open his bag but he refused. He
acceded later on when the policemen identified themselves. Inside the bag
were marijuanaleaves wrapped in a plastic wrapper. The police officers only knew of
the activities of Tangliben on the night of his arrest.
In the instant case, the apprehending policemen already had prior knowledge from the
very same informant of accused-appellant's activities. No less than SPO2 Mario Nulud,
the team leader of the arresting operatives, admitted that their informant has been
telling them about the activities of accused-appellant for two years prior to his actual
arrest on September 21, 1996. An excerpt of the testimony of SPO2 Mario Nulud reveals
the illegality of the arrest of accused-appellant as follows:
Q. Did the civilian informer of yours mentioned to
you the name of this chinese drug
pusher?
A. He is mentioning the name of Binad or Jojo
Chua.

156

Q. And he had been mentioning these names to

you even before September 21, 1996?

Q. But he was just walking towards the entrance of

the Thunder Inn Hotel?

A. Yes, sir.

A. Yes, sir, he is about to enter Thunder Inn Hotel.

Q. How long did this civilian informant have been

telling you about the activities of this
chinese drug pusher reckoning in relation
to September 21, 1996?

xxx xxx xxx

Q. While he was walking, then you and PO2
Nunag pounced on him as you used
pounced on him in your affidavit?

A. That was about two years already.

A. Yes, sir.
Q. Notwithstanding his two years personal
knowledge which you gained from the
civilian informant that this chinese drug
pusher have been engaged pushing
drugs here in Angeles City, you did not
think of applying for a search warrant for
this chinese drug pusher?

xxx xxx xxx

Q. And you pounced on Jojo Chua before you
saw that alleged small plastic bag, is that
correct?
A. Yes, sir.

A. No, sir.
xxx xxx xxx

Q. And after that you also confiscated this Zesto

juice box?

Q. When you accosted this Binad Chua, he was

casually walking along the road near the
Thunder Inn Hotel, is that right?

A. Yes, sir.

A. He was pinpointed by the civilian informer that

he is the chinese drug pusher that will
deliver to him also.

Q. But would you agree with me that not all

crystalline substance is shabu?

Q. My question Mr. Witness, is this Jojo Chua or

Binad Chua the accused in this case he
alighted with a Corolla car with
platenumber 999, I think, he just alighted
when you saw him?
A. Yes, sir.
Q. From the car when he alighted, he casually
walked towards near the entrance of the
Thunder Inn Hotel?
A. He was about to proceed towards Thunder Inn
Hotel but he was pinpointed already by
the civilian informer.

xxx xxx xxx

A. No, that is shabu and it is been a long time that

we have been tailing the accused that
he is really a drug pusher.
Q. So you have been tailing this accused for quite
a long time that you are very sure that
what was brought by him wasshabu?
A. Yes, sir. 24
The police operatives cannot feign ignorance of the alleged illegal activities of
accused-appellant. Considering that the identity, address and activities of the
suspected culprit was already ascertained two years previous to the actual arrest, there
was indeed no reason why the police officers could not have obtained a judicial
warrant before arresting accused-appellant and searching his person. Whatever
information their civilian asset relayed to them hours before accused-appellant's arrest
was not a product of an "on the-spot" tip which may excuse them from obtaining a

157

warrant of arrest. Accordingly, the arresting team's contention that their arrest of
accused-appellant was a product of an "on-the-spot" tip is untenable.

apprehending officers. Hence, the search and seizure of the prohibited drugs cannot
be deemed as a valid "stop-and-frisk".

In the same vein, there could be no valid "stop-and-frisk" in this case. A stop-and-frisk
was defined as the act of a police officer to stop a citizen on the street, interrogate him,
and pat him for weapon(s) 25 or contraband. The police officer should properly
introduce himself and make initial inquiries, approach and restrain a person who
manifests unusual and suspicious conduct, in order to check the latter's outer clothing
for possibly concealed weapons. 26 The apprehending police officer must have a
genuine reason, in accordance with the police officer's experience and the surrounding
conditions, to warrant the belief that the person to be held has weapons (or
contraband) concealed about him. 27 It should therefore be emphasized that a search
and seizure should precede the arrest for this principle to apply. 28

Neither can there be valid seizure in plain view on the basis of the seized items found in
accused-appellant's possession. First, there was no valid intrusion. Second, the
evidence, i.e., the plastic bags found in the Zest-O juice box which contained crystalline
substances later on identified as methamphetamine hydrochloride (shabu) and the 20
rounds of .22 caliber ammunition, were not inadvertently discovered. The police officers
first arrested accused-appellant and intentionally searched his person and peeked into
the sealed Zest-O juice box before they were able to see and later on ascertain that the
crystalline substance was shabu. There wasno clear showing that the sealed Zest-O juice
box accused-appellant carried contained prohibited drugs. Neither were the small
plastic bags which allegedly contained crystalline substance and the 20 rounds of .22
caliber ammunition visible. These prohibited substances were not in plain view of the
arresting officers; hence, inadmissible for being the fruits of the poisonous tree.

This principle of "stop-and-frisk" search was invoked by the Court in Manalili v. Court of
Appeals. 29 In said case, the policemen chanced upon the accused who had reddish
eyes, walking in a swaying manner, and who appeared to be high on drugs. Thus, we
upheld the validity of the search as akin to a "stop-and-frisk." In People v. Solayao,30 we
also found justifiable reason to "stop-and-frisk" the accused after considering the
following circumstances: the drunken actuations of the accused and his companions,
the fact that his companions fled when they saw the policemen, and the fact that the
peace officers were precisely on an intelligence mission to verify reports that armed
persons where roaming the vicinity.
The foregoing circumstances do not obtain in the case at bar. There was no valid "stopand-frisk" in the case of accused-appellant. To reiterate, accused-appellant was first
arrested before the search and seizure of the alleged illegal items found in his
possession. The apprehending police operative failed to make any initial inquiry into
accused-appellant's business in the vicinity or the contents of the Zest-O juice box he
was carrying. The apprehending police officers only introduced themselves when they
already had custody of accused-appellant. Besides, at the time of his arrest, accusedappellant did not exhibit manifest unusual and suspicious conduct reasonable enough
to dispense with the procedure outlined by jurisprudence and the law. There was,
therefore, no genuine reasonable ground for the immediacy of accused-appellant's
arrest.

Obviously, the acts of the police operatives wholly depended on the information given
to them by their confidential informant. Accordingly, before and during that time of the
arrest, the arresting officers had nopersonal knowledge that accused-appellant had just
committed, was committing, or was about to commit a crime.
At any rate, even if the fact of delivery of the illegal drugs actually occurred, accusedappellant's warrantless arrest and consequent search would still not be deemed a valid
"stop-and frisk". For a valid "stop-and frisk" the search and seizure must precede the
arrest, which is not so in this case. Besides, as we have earlier emphasized, the
information about the illegal activities of accused-appellant was not unknown to the

In like manner, the search cannot be categorized as a search of a moving vehicle, a

consented warrantless search, or a customs search. It cannot even fall under exigent
and emergency circumstances, for the evidence at hand is bereft of any such showing.
All told, the absence of ill-motive on the part of the arresting team cannot simply
validate, much more cure, the illegality of the arrest and consequent warrantless search
of accused-appellant. Neither can the presumption of regularity of performance of
function be invoked by an officer in aid of the process when he undertakes to justify an
encroachment of rights secured by the Constitution. 31 In People v. Nubla, 32 we clearly
stated that:
The presumption of regularity in the performance
of official duty cannot be used as basis for
affirming
accused-appellant's
conviction
because, first, the presumption is precisely just that
a mere presumption. Once challenged by
evidence, as in this case, . . . [it] cannot be
regarded as binding truth. Second, the
presumption of regularity in the performance of
official functions cannot preponderate over the
presumption of innocence that prevails if not
overthrown by proof beyond reasonable doubt.
Furthermore, we entertain doubts whether the items allegedly seized from accusedappellant were the very same items presented at the trial of this case. The record shows
that the initial field test where the items seized were identified as shabu, was only
conducted at the PNP headquarters of Angeles City. 33 The items were therefore not
marked at the place where they were taken. In People v.Casimiro, 34 we struck down
with disbelief the reliability of the identity of the confiscated items since they were not
marked at the place where they were seized, thus:
The narcotics field test, which initially identified the
seized item as marijuana, was likewise not

158

conducted at the scene of the crime, but only at

the narcotics office. There is thus reasonable doubt
as to whether the item allegedly seized from
accused-appellant
is
the
same
brick
ofmarijuana marked by the policemen in their
headquarters and given by them to the crime
laboratory.
The government's drive against illegal drugs needs the support of every citizen. But it
should not undermine the fundamental rights of every citizen as enshrined in the
Constitution. The constitutional guarantee against warrantless arrests and unreasonable
searches and seizures cannot be so carelessly disregarded as overzealous police
officers are sometimes wont to do. Fealty to the constitution and the rights it guarantees
should be paramount in their minds, otherwise their good intentions will remain as such
simply because they have blundered. The criminal goes free, if he must, but it is the law
that sets him free. Nothing can destroy a government more quickly than its failure to
observe its own laws, or worse, its disregard of the charter of its own existence. 35
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Angeles
City, Branch 59, in Criminal CasesNos. 96-507 and 96-513, convicting accused-appellant
Binad Sy Chua of violation of Section 16, Article III, Republic Act No. 6425 and
sentencing him to suffer the penalty of reclusion perpetua and to pay a fine of
P1,000,000.00, is REVERSED and SET ASIDE. Accused-appellant Binad Sy Chua is
ACQUITTED on the ground of reasonable doubt. Consequently, he is ordered forthwith
released from custody, unless he is being lawfully held for another crime.
SO ORDERED.
Davide, Jr., C.J., Vitug, Carpio and Azcuna, JJ., concur.
||| (People v. Chua, G.R. Nos. 136066-67, [February 4, 2003], 444 PHIL 757-777)

31- People v. Claudio, 160 SCRA 648 (1988)

THIRD DIVISION
[G.R. No. 72564. April 15, 1988.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANITA CLAUDIO Y
BAGTANG, accused-appellant.
The Solicitor General for plaintiff-appellee.
Romeo C. Alinea for accused-appellant.

DECISION
GUTIERREZ, JR., J p:
This is an appeal from the decision of the Regional Trial Court of Olongapo City, Branch
73 finding the accused Anita Claudio y Bagtang guilty beyond reasonable doubt of
violating Sec. 4, Rep. Act No. 6425 (Dangerous Drugs Act of 1972 as amended) and
sentencing her to serve the penalty of reclusion perpetua, to pay a fine of P20,000.00,
and to pay the costs.
The information filed against the accused alleged:
"That on or about the 21st day of July 1981, in the City of
Olongapo, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused without being lawfully
authorized, did then and there wilfully, unlawfully and knowingly
transport 1.1 kilos of Marijuana dried leaves, which are prohibited
drugs for the purpose of selling the same from Baguio City to
Olongapo City." (Rollo, p. 13)

The lower court established her guilt beyond reasonable doubt on the basis of the
prosecution's evidence as follows:
"To prove the guilt of the accused, the prosecution offered the
following documentary and testimonial evidence as follows: Exhibit
"A" Letter request for Examination of suspected marijuana dried
leaves weighing approximately 1.1 kilos dated July 25, 1981; "B"
plastic container; "B" marijuana contained in the plastic container;
"B"-1-a" another plastic container; "C" Chemistry Report No. D668-81;"C " Findings: Positive for marijuana; "D, "D-1," D-2 and "D-3;"
"E" and "E" photographs of accused with Pat. Daniel Obia and
Paulino Tiongco showing the marijuana, "F Victory Liner
Ticket No. 84977; "G" Sworn Statement of Pat. Daniel Obia, "H"
Request for Field Test on suspected marijuana from accused by
P/Lt. Antonio V. Galindo; "H"-1 date of receipt of the request; "L"
Certificate of Field Test dated duly 22, 1981; "B-2" and "B-2-a"
additional wrapping paper; and the testimonies of witnesses of the
prosecution, Theresa Ann Bugayong; Pat. Daniel Obia, Cpl.
Paulino Tiongco, Cpl. Ernesto Abello and Sgt. Leoncio Bagang.
"Theresa Ann Bugayong - 22 years old, single, Forensic Chemist and
a resident of 1150 Sampaloc, Metro Manila, testified that she
received a request from the Task Force Bagong Buhay, Olongapo
City, dated July 25, 1981, on specimen of marijuana submitted for
examination. The specimen consisted of 900 grams of suspected
dried marijuana flowering tops wrapped in a newspaper placed in
a plastic bag with a marking "MB Store" (Exh. "B").

159

"The examination conducted by her proved to be positive for

marijuana. After her examination, she prepared Chemistry
Report No. D-668-81 dated July 29, 1981 (Exhs. "C" and "C-1"). She
conducted three examinations: microscopic examination, the
duguenoi levine test and thirdly, the confirmatory examination of
thin layer chromatographic test. The said specimen was submitted
to them by OIC Danilo Santiago, a representative of the CANU,
Olongapo City. LexLib
"The second witness for the prosecution was Daniel Obia, 37 years
old, married, policeman and residing at 34 Corpuz St., East
Tapinac, Olongapo City. Obia testified that he has been a
member of the INP, since 1970 up to the present. He was assigned
in June, 1972 at the Investigation Division as operative. His job then
was among other things to follow up reports in their office, recover
stolen items and apprehend suspects. On July 21, 1981, he was on
Detached Service with the ANTI-NARCOTICS Unit; and that on that
date, he came from Baguio City and arrived in Olongapo City at
about 1:30 o'clock in the afternoon having left Baguio at about
8:30 o'clock in the morning. He took the Victory Liner in going back
to Olongapo City. His family lives in Baguio City. On board the
Victory Liner, he was seated on the second seat at the back. While
he was thus seated, suspect Anita Claudio boarded the same bus
and took the seat in front of him after putting a bag which she was
carrying at the back of the seat of Obia. The bag placed by
suspect behind his seat was a wooven buri bag made of plastic
containing some vegetables. The act of the accused putting her
bag behind Pat. Obia seat aroused his suspicion and made him
felt (sic) nervous. With the feeling that there was something
unusual, he had the urge to search the woven plastic bag. But it
was only at San Fernando, Pampanga when he was able to go to
the bag. He inserted one of his fingers in a plastic bag located at
the bottom of the woven bag and smelt marijuana. The plastic
woven bag appearing to contain camote tops on the top has a
big bundle of plastic of marijuana at the bottom. He could
recognize the smell of marijuana because he was assigned at that
time at the ANTI-NARCOTICS Unit. He did not, however, do
anything after he discovered that there was marijuana inside the
plastic bag of the accused until they reached Olongapo City and
the accused alighted from the bus in front of the Caltex Gasoline
Station in Sta. Rita. Right after the accused alighted from the bus,
policeman Obia intercepted her and showed her his ID
identifying himself as a policeman and told her he will search her
bag because of the suspicion that she was carrying marijuana
inside said bag. In reply, accused told him, "Please go with me, let
us settle this at home." However, the witness did not heed her plea
and instead handcuffed her right hand and with her, boarded a
tricycle right away and brought the suspect to the police
headquarters with her bag appearing to contain vegetables.

"At the police headquarters Investigation Section. the bag was

searched in the presence of Investigator Cpl. Tiongco; Pat. Obia,
the accused and Sgt. Leoncio Bagang. Inside the plastic bag was
found a big bundle of plastic containing marijuana weighing
about one kilo. Witness stated that he could detect marijuana
even before the application of chemicals because of his one year
and a half assignment with the CANU. After the marijuana was
taken from the bag of the accused, photographs were taken of
the accused and the marijuana confiscated from her possession
with Pat. Obia and that of Investigator Tiongco, accused and
himself identified photographs shown to him in open Court. (Exhs.
"D," "D-1," "D-2" and "D-3"). Witness was likewise shown a plastic bag
of marijuana contained in a plastic container (Exhs. "B," "B-1" and
"B-1-a") and identified it as the one confiscated from the accused
and pointed to his initials on the newspaper wrapping which also
shows the date and time, although the wrapper at the time he
testified appeared to be soiled already. The marijuana was
allegedly still fresh when confiscated.
"To prove further that the accused transported the confiscated
marijuana from Baguio City to Olongapo City, witness identified
Victory Liner Ticket No. 684977 which was confiscated from the
accused and for identification purposes, the witness presented the
body number of the bus he wrote at the back of the ticket which is
"309" (Exhs. "F" and "F-1"). Regarding himself, he did not pay his fare
from Baguio City because as a policeman, he used his badge and
a free ride.
"On cross-examination, witness stated that he went to Baguio City
on July 15, 1981 and underwent treatment of his heart while he was
there. He was given a furlough for medical treatment. He stayed in
Baguio City for about five days and returned to Olongapo City or
July 21, 1981. Prior to July 21, 1981, witness never knew the
accused, and the first time he saw her was in Baguio when she
boarded the same Victory Liner he took. When the accused who
was bringing with her a woven plastic bag placed the bag right
behind his seat instead of placing it in front of her or beside her
seat Witness Obia became suspicious and his suspicion was
confirmed when they reached San Fernando, Pampanga, after he
checked the buri bag. The bus stopped at said town to load some
gasoline. Witness inserted one of his fingers inside the buri bag and
thereafter smelt marijuana. He confirmed his testimony on direct
that when witness confronted accused he was invited to go with
her in order to settle the matter to which he refused. Accused
further testified that from the time the accused placed her bag
behind his seat from Baguio City, he felt so nervous and had to
take his medicine at the Tarlac Station. It was only after having
taken his medicine that his apprehension was contained and thus
was able to insert his right hand inside the buri bag in San
Fernando, Pampanga. His fingers reached the very bottom of the

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bag. He identified his sworn statement regarding this incident given

on July 21, 1981 which is Exhibit "G." Witness likewise identified
accused Anita Claudio in open court.
"Paulino Tiongco, 52 years old, married and resident of 31 Canada
St., East Bajac Bajac, Olongapo City, testified that as a policeman
on the afternoon of July 21, 1981, he was inside the Investigation
Division of the Police Station, Olongapo City. As Duty Investigator,
between 1:46 and 2:00 o'clock in the afternoon of the same day,
Pat. Daniel Obia arrived at the Police Station with a woman and
identified her in the courtroom as Anita Claudio. Pat. Obia
reported to him that he apprehended Anita Claudio inside the
Victory Liner bus for possession of marijuana dried leaves. The
marijuana leaves were contained in a buri bag with some
vegetables such as camote tops, bananas and some other
vegetable". The marijuana was placed in a plastic wrapper with
the name National Book Store colored black and white. Witness
identified the wrapper (Exh. "B-2"). The bag contained the markings
of Pat. Obia which are his initials, (Exh. "B-2-a"),
and numbers 210781 representing the date which was placed by
Pat. Obia after Cpl. Tiongco examined the suspected marijuana.
cdrep
"After examining and seeing the marijuana together with the
vegetables, he interviewed apprehending officer Obia and
reduced his statements in writing. Cpl. Tiongco identified the sworn
statement of Obia (Exh. 'G). He also interviewed accused Anita
Claudio who was all the while inside the Investigation Room seated
on a chair. After appraising her of her constitutional rights, he
asked the accused whether she was willing to give her written
statements to which the accused refused. Hence, nostatements
were taken of her. However, pictures were taken inside the
investigation room. Exhs. "D" and "E," series which were already
previously identified by Pat. Obia. Witness identified the persons
appearing in the pictures as that of Pat. Obia and the accused
and also of himself. Thereafter, the marijuana contained in the
plastic bag were turned over to Lt. Galindo and Anita Claudio was
detained.
"Ernesto Abello, 41 years old, married and residing at No. 29 Alba
Street, East Tapinac, Olongapo City, testified he was since March
1972 a policeman and was stationed at Police Station 21,
Olongapo City, Metrodiscom. However, in 1981, he was already
assigned to the CANU-General Anti-NARCOTICS Unit. On July 22,
1981, he reported for work at the CANU and received from Lt.
Galindo more than a kilo of suspected marijuana dried leaves. As
requested by Lt. Galindo, he conducted a field test on this
marijuana which he received from Lt. Galindo, as evidenced by a
request signed by him dated July 22, 1981 (Exh. "H").

"In connection with the field test conducted by him on the

specimen, he prepared a Certificate of Field Test dated July 22,
1981 (Exhs. "I"). The Certificate of Field Test indicated the presence
of tetra-hydrocannabinol (THC), an active substance that can only
be found in marijuana, a prohibited drug. Cpl. Abello identified a
plastic bag of marijuana received from Lt. Galindo which he later
give to CIC Danilo Santiago, the Evidence Custodian, for the latter
to bring the specimen to the PC Crime Laboratory.
"The last witness for the prosecution was Leoncio Bagang, 40 years
old, married, residing at No. 27 Jones St., East Tapinac, Olongapo
City, a policeman of Olongapo City, assigned with Police Station
"21." He has been a policeman since 1966 up to the present. In July,
1981, he was then assigned at the Patrol Division and his duty was
to patrol the city proper from Magsaysay Drive up to east Bajac
Bajac.
"He narrated that on July 21, 1981, between the hours of 1:00 and
2:00 o'clock in the afternoon, he was at the Caltex Gasoline
Station, East Bajac Bajac, Olongapo City along Rizal Avenue. He
was then on duty patrol using a motorcycle. While he was at the
said place, he saw Pat. Obia alighted from the Victory Liner bus
ordering somebody to alight from the same bus. When he heard
Pat. Obia, he approached him and asked him what was
happening. Pat. Obia told him he apprehended a certain
woman possessing dried marijuana. The woman was still then inside
the bus. Pat. Obia then brought the woman to the police
department who was bringing with her a buri bag. They boarded a
tricycle, the woman riding inside the tricycle while Pat. Obia sat
behind the driver. He then followed in his motorcycle the said
tricycle to the police station. He went inside the Investigation
Section of the Police Station and he was there when Pat. Obia
reported to Cpl. Tiongco his apprehension of the woman
possessing marijuana. He saw the marijuana for the first time inside
the Investigation Section placed in a buri bag covered with
newspaper. He witnessed the taking out of the marijuana from
inside the bag by Pat. Obia in the presence of Cpl. Tiongco and
the woman or the accused in this case, and himself. Policeman
Bagang identified the accused in open Court. When asked about
the nature of the marijuana when it was brought out from the bag,
he said that the marijuana was dried but not well dried. Aside from
the marijuana inside the buri bag, there were vegetables and
bananas. Witness identified in open court, the marijuana he saw
found in the buri bag of the accused. His means of identification
was the signature of Pat. Obia, (Exh. "B-1"). He likewise identified a
newspaper wrapping which was already torn.
"While in the Investigation Division, witness Bagang heard the
accused's answer to Cpl. Tiongco's question that she was going to
deliver the marijuana to Sta. Rita. He, however, did not linger long

161

at the investigation Division. After he saw the marijuana and heard

the answer of the accused to Cpl. Tiongco's question the place of
delivery of the marijuana, he left the police station. Witness likewise
identified an initial DO-21-07-81 already marked as Exhibit "B-2." DO
which is an initial, and not a signature, stands for Daniel Obia.
After the testimony of Leoncio Bagang, the prosecution rested its
case." (Rollo, pp. 42-47)
Accused Claudio raised the following assignments of errors in this appeal:
I
"CONVICTION UNDER SECTION 4, ART. II OF R.A. 6425 IS IMPROPER IF
ONE OR SOME OF THE ELEMENTS OF THE OFFENSE IS OR ARE ABSENT.
II
"CONVICTION CAN NOT BE HAD UNDER SECTION 4, ART. II OF R.A.
6425IF THE ALLEGED BUYMAN WAS NOT PRESENTED TO TESTIFY.
III
"APPELLANT'S CONVICTION FOR DELIVERY (SEC. 4, ART II, OF R.A.
6424) IS WRONG BECAUSE SOME MATERIAL FACTS
WERE OVERLOOKED AND NOT CONSIDERED IN FAVOR OF
APPELLANT. (Rollo, p. 91)

The accused alleges that she is only liable, at the most, for possession under Sec. 8, Art. II
of Rep. Act No. 6425 and not for violating Sec. 4 of the same Act.

The contention is without merit. A closer perusal of the subject provision shows that it is
not only delivery which is penalized but also the sale, administration, distribution
and transportation of prohibited drugs. Claudio was caught transporting 1.1 kilos of
marijuana, thus the lower court did not err in finding her guilty of violating Sec. 4.
The accused also alleges that before the completion of delivery, the intention of the
possessor is unknown.
This allegation is also unavailing. It is undisputed that Claudio had in her possession 1.1
kilos of marijuana. This is a considerable quantity. As held in the case of People v.
Toledo, (140 SCRA 259, 267) "the possession of such considerable quantity as three
plastic bags of marijuana leaves and seeds coupled with the fact that he is not a user of
prohibited drugs cannot indicate anything except the intention of the accused to sell,
distribute and deliver said marijuana."
The accused next contends the warrantless search, seizure and apprehension as
unlawful.
The applicable provisions on this issue are found in the 1985 Rules on Criminal Procedure.
Rule 113, Sec. 5(a) of the said Rules provides:
" . . . A peace officer or a private person may, without a warrant,
arrest a person:
"(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense.
xxx xxx xxx
Meanwhile, its Rule 126, Sec. 12 provides:

The latter section, Sec. 4 provides:

"Sec. 4. Sale, Administration, Delivery Distribution and Transportation
of Prohibited Drugs. The penalty of life imprisonment to death
and a fine ranging from twenty thousand to thirty thousand pesos
shall be imposed upon any person who, unless authorized by law,
shall sell, administer, deliver, give away to another, distribute,
dispatch in transit or transport any prohibited drug, or shall act as a
broker in any of such transactions. If the victim of the offense is a
minor, or should a prohibited drug involved in any offense under
this Section be the proximate cause of the death of a victim
thereof, the maximum penalty herein provided shall be imposed."
Claudio contends that there was no delivery as there was no recipient of the prohibited
drugs. Therefore, she may not be convicted under Sec. 4 of Rep. ActNo. 6425. LibLex

"Section 12. Search incident to lawful arrest. A person lawfully

arrested may be searched for dangerous weapons or anything
which may be used as proof of the commission of an offense,
without a search warrant. (12a)"
Appellant Claudio was caught transporting prohibited drugs. Pat. Daniel Obia did not
need a warrant to arrest Claudio as the latter was caught in flagrante delicto. The
warrantless search being an incident to a lawful arrest is in itself lawful. (Nolasco v. Pano,
147 SCRA 509). Therefore, there was no infirmity in the seizure of the 1.1 kilos of
marijuana.
The accused takes inconsistent positions in her appellant's brief At first, she does not
deny having had with her marijuana at the time of her arrest. Instead, she claims that
she should just be guilty of possession. In a complete turnabout, in the latter portion of
said brief, she claims that the evidence against her were mere fabrications and the
marijuana allegedly found in her possession was only planted.

162

We have carefully examined the records of the case and we find no ground to alter the
trial court's findings and appreciation of the evidence presented.
Credence is accorded to the prosecution's evidence, more so as it consisted mainly of
testimonies of policemen. Law enforcers are presumed to have regularly performed
their duty in the absence of proof to the contrary (People v. De Jesus, 145 SCRA 521).
We also find no reason from the records why the prosecution witnesses should fabricate
their testimonies and implicate appellant in such a serious crime (See People v. Bautista,
147 SCRA 500). cdphil
The accused testified that she was not on that bus that came from Baguio City but
rather she was in Olongapo City all that time. She alleged that she was arrested by Pat.
Obia for no reason at all.
In the case at bar, alibi does not deserve much credit as it was established only by the
accused herself (People v. De la Cruz, 148 SCRA 582).
Moreover, it is a well-established rule that alibi cannot prevail over positive testimony
(People v. De La Cruz, supra).
WHEREFORE, the judgment appealed from is AFFIRMED.
SO ORDERED.
Fernan, Feliciano, Bidin and Cortes, JJ., concur.
||| (People v. Claudio y Bagtang, G.R. No. 72564, [April 15, 1988], 243 PHIL 795-805)

"(1) One .357 Caliber revolver, Smith and Wesson, SN-32919 with six
(6) live ammunitions;
"(2) One M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long
and one (1) short magazine with ammunitions;
"(3) One .380 Pietro Beretta, SN-A 35723 Y with clip and eight (8)
ammunitions; and
"(4) Six additional live double action ammunitions of .38 caliber
revolver." 1
Petitioner was correspondingly charged on December 3, 1992, before the Regional Trial
Court (RTC) of Angeles City with illegal possession of firearms and ammunitions
under P.D. 1866 2 thru the following Information: 3
"That on or about the 26th day of October, 1992, in the City of
Angeles, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, did then and there willfully,
unlawfully and feloniously have in his possession and under his
custody and control one (1) M-16 Baby Armalite rifle, SN-RP 131120
with four (4) long and one (1) short magazines with ammunitions,
one (1) .357 caliber revolver Smith and Wesson, SN-32919 with six (6)
live ammunitions and one (1) 380 Pietro Beretta, SN-A35723Y with
clip and eight (8) ammunitions, without having the necessary
authority and permit to carry and possess the same.
ALL CONTRARY TO LAW." 4

32- Padilla v. CA, 269 SCRA 402 (1997)

THIRD DIVISION
[G.R. No. 121917. March 12, 1997.]
ROBIN CARIO PADILLA @ ROBINHOOD PADILLA, petitioner, vs.
COURT OF APPEALS and PEOPLE of the PHILIPPINES,respondents.
Raval and Lokin, Robert A. Padilla and Philip Jurado and R.A.V. Saguisag and Gina C.
Garcia for petitioner.
The Solicitor General for respondents.
DECISION
FRANCISCO, J p:

On October 26, 1992, high-powered firearms with live ammunitions were found in the
possession of petitioner Robin @ Robinhood Padilla, i.e.:

The lower court then ordered the arrest of petitioner, 5 but granted his application for
bail. 6 During the arraignment on January 20, 1993, a plea of not guilty was entered for
petitioner after he refused, 7 upon advice of counsel, 8 to make any plea. 9 Petitioner
waived in writing his right to be present in any and all stages of the case. 10
After trial, Angeles City RTC Judge David Rosete rendered judgment dated April 25,
1994 convicting petitioner of the crime charged and sentenced him to an
"indeterminate penalty from 17 years, 4 months and 1 day of reclusion temporalas
minimum, to 21 years of reclusion perpetua, as maximum". 11 Petitioner filed his notice
of appeal on April 28, 1994. 12 Pending the appeal in the respondent Court of
Appeals, 13 the Solicitor-General, convinced that the conviction shows strong evidence
of guilt, filed on December 2, 1994 a motion to cancel petitioner's bail bond. The
resolution of this motion was incorporated in the now assailed respondent court's
decision sustaining petitioner's conviction, 14 the dispositive portion of which reads:
"WHEREFORE, the foregoing circumstances considered, the
appealed decision is hereby AFFIRMED, and furthermore, the

163

P200,000.00 bailbond posted by accused-appellant for his

provisional liberty, FGU Insurance Corporation Bond No. JCR (2)
6523, is hereby cancelled. The Regional Trial Court, Branch 61,
Angeles City, is directed to issue the Order of Arrest of accusedappellant and thereafter his transmittal to the National Bureau of
Prisons thru the Philippine National Police where the said accusedappellant shall remain under confinement pending resolution of his
appeal, should he appeal to the Supreme Court. This shall be
immediately executory. The Regional Trial Court is further directed
to submit a report of compliance herewith.

"Manarang and Cruz went out to investigate and immediately saw

the vehicle occupying the edge or shoulder of the highway giving
it a slight tilt to its side (pp. 9-10, ibid). Manarang, being a member
of both the Spectrum, a civic group and the Barangay Disaster
Coordinating Council, decided to report the incident to the
Philippine National Police of Angeles City (p. 10, ibid.). He took out
his radio and called the Viper, the radio controller of the Philippine
National Police of Angeles City (p. 10, ibid.). By the time Manarang
completed the call, the vehicle had started to leave the place of
the accident taking the general direction to the north (p. 11,ibid).

SO ORDERED. 15

"Manarang went to the location of the accident and found out

that the vehicle had hit somebody (p. 11, ibid).

Petitioner received a copy of this decision on July 26, 1995. 16 On August 9, 1995 he filed
a "motion for reconsideration (and to recall the warrant of arrest)" 17 but the same was
denied by respondent court in its September 20, 1995 Resolution,18 copy of which was
received by, petitioner on September 27, 1995. The next day, September 28, petitioner
filed the instant petition for review on certiorariwith application for bail 19 followed by
two "supplemental petitions" filed by different counsels, 20 a "second supplemental
petition" 21 and an urgent motion for the separate resolution of his application for bail.
Again, the Solicitor-General22 sought the denial of the application for bail, to which the
Court agreed in a Resolution promulgated on July 31, 1996. 23 The Court also granted
the Solicitor-General's motion to file a consolidated comment on the petitions and
thereafter required the petitioner to file his reply. 24 However, after his vigorous
resistance and success on the intramural of bail (both in the respondent court and this
Court) and thorough exposition of petitioner's guilt in his 55-page Brief in the respondent
court, the Solicitor-General now makes a complete turnabout by filing a "Manifestation
In Lieu Of Comment" praying for petitioner's acquittal. 25
The People's detailed narration of facts, well-supported by evidence on record and
given credence by respondent court, is as follows: 26
"At about 8:00 o'clock in the evening of October 26, 1992, Enrique
Manarang and his compadre Danny Perez were inside the
Manukan sa Highway Restaurant in Sto. Kristo, Angeles City where
they took shelter from the heavy downpour (pp. 5-6, TSN, February
15, 1993) that had interrupted their ride on motorcycles (pp. 56, ibid.) along Mac Arthur Highway (ibid). While inside the
restaurant, Manarang noticed a vehicle, a Mitsubishi Pajero,
running fast down the highway prompting him to remark that the
vehicle might get into an accident considering the inclement
weather. (p. 7, Ibid.) In the local vernacular, he said thus: 'Ka bilis
na, mumuran pa naman pota makaaksidente ya.' (p. 7, ibid.). True
enough, immediately after the vehicle had passed the restaurant,
Manarang and Perez heard a screeching sound produced by the
sudden and hard braking of a vehicle running very fast (pp. 78, ibid.) followed by a sickening sound of the vehicle hitting
something (p. 8, ibid.). Danny Cruz, quite sure of what had
happened, remarked 'oy ta na' signifying that Manarang had
been right in his observation (pp. 8-9, ibid).

"He asked Cruz to look after the victim while he went back to the
restaurant, rode on his motorcycle and chased the vehicle (p.
11, ibid.). During the chase he was able to make out the
plate number of the vehicle as PMA 777 (p. 33, TSN, February 15,
1993). He called the Viper through the radio once again (p.
34, ibid.) reporting that a vehicle heading north with
plate number PMA 777 was involved in a hit and run accident (p.
20, TSN, June 8, 1993). The Viper, in the person of SPO2 Ruby Buan,
upon receipt of the second radio call flashed the message to all
units of PNP Angeles City with the order to apprehend the vehicle
(p. 20,ibid.). One of the units of the PNP Angeles City reached by
the alarm was its Patrol Division at Jake Gonzales Street near the
Traffic Division (pp. 5-7, TSN, February 23, 1993). SPO2 Juan C. Borja
III and SPO2 Emerlito Miranda immediately boarded a mobile
patrol vehicle (Mobile No. 3) and positioned themselves near the
south approach of Abacan bridge since it was the only passable
way going to the north (pp. 8-9, ibid.). It took them about ten (10)
seconds to cover the distance between their office and the
Abacan bridge (p. 9, ibid).
"Another PNP mobile patrol vehicle that responded to the flash
message from SPO2 Buan was Mobile No. 7 of the Pulongmaragal
Detachment which was then conducting patrol along Don Juico
Avenue (pp. 8-9, TSN, March 8, 1993). On board were SPO Ruben
Mercado and SPO3 Tan and SPO2 Odejar (p. 8, ibid.). SPO Ruben
Mercado immediately told SPO3 Tan to proceed to the MacArthur
Highway to intercept the vehicle with platenumber PMA 777 (p.
10, ibid).
"In the meantime, Manarang continued to chase the vehicle
which figured in the hit and run incident, even passing through a
flooded portion of the MacArthur Highway two (2) feet deep in
front of the Iglesia ni Kristo church but he could not catch up with
the same vehicle (pp. 11-12, February 15, 1993). When he saw that
the car he was chasing went towards Magalang, he proceeded to
Abacan bridge because he knew Pulongmaragal was not

164

passable (pp. 12-14, ibid.). When he reached the Abacan bridge,

he found Mobile No. 3 and SPO2 Borja and SPO2 Miranda
watching all vehicles coming their way (p. 10, TSN, February 23,
1993). He approached them and informed them that there was a
hit and run incident (p. 10, ibid.). Upon learning that the two police
officers already knew about the incident, Manarang went back to
where he came from (pp. 10-11; ibid.). When Manarang was in
front of Tina's Restaurant, he saw the vehicle that had figured in the
hit and run incident emerging from the corner adjoining Tina's
Restaurant (p. 15, TSN, February 15, 1993). He saw that the license
plate hanging in front of the vehicle bore the
identifying number PMA 777 and he followed it (p. 15, ibid.)
towards the Abacan bridge.
"Soon the vehicle was within sight of SPO2 Borja and SPO2 Miranda
of Mobile No. 3 (p. 10, TSN, February 23, 1993). When the vehicle
was about twelve (12) meters away from their position, the two
police officers boarded their Mobile car, switched on the engine,
operated the siren and strobe light and drove out to intercept the
vehicle (p. 11, ibid.). They cut into the path of the vehicle forcing it
to stop (p. 11, ibid).
"SPO2 Borja and SPO2 Miranda alighted from Mobile No. 3 (p. 12,
TSN, February 23, 1993). SPO2 Miranda went to the vehicle with
plate numberPMA 777 and instructed its driver to alight (p.
12, ibid.). The driver rolled down the window and put his head out
while raising both his hands. They recognized the driver as Robin C.
Padilla, appellant in this case (p. 13, ibid.). There was no one else
with him inside the vehicle (p. 24). At that moment, Borja noticed
that Manarang arrived and stopped his motorcycle behind the
vehicle of appellant (p. 14, ibid). SPO2 Miranda told appellant to
alight to which appellant complied. Appellant was wearing a short
leather jacket (p. 16, TSN, March 8, 1993) such that when he
alighted with both his hands raised, a gun (Exhibit 'C') tucked on
the left side of his waist was revealed (p. 15; TSN, February 23,
1993), its butt protruding (p. 15, ibid.). SPO2 Borja made the move
to confiscate the gun but appellant held the former' s hand
alleging that the gun was covered by legal papers (p. 16, ibid.).
SPO2 Borja, however, insisted that if the gun really was covered by
legal papers, it would have to be shown in the office (p. 16, ibid.).
After disarming appellant, SPO2 Borja told him about the hit and
run incident which was angrily denied by appellant (p. 17,ibid.). By
that time, a crowd had formed at the place (p. 19, ibid.). SPO2
Borja checked the cylinder of the gun and find six (6) live bullets
inside (p. 20, ibid).
"While SPO2 Borja and appellant were arguing, Mobile No. 7 with
SPO Ruben Mercado, SPO3 Tan and SPO2 Odejar on board arrived
(pp. 11-12, TSN, March 8, 1993). As the most senior police officer in
the group, SPO Mercado took over the matter and informed

appellant that he was being arrested for the hit and run incident
(p. 13, ibid.). He pointed out to appellant the fact that the
plate number of his vehicle was dangling and the railing and the
hood were dented (p. 12, ibid.). Appellant,
however,arrogantly denied his misdeed and, instead, played with
the crowd by holding their hands with one hand and pointing to
SPO2 Borja with his right hand saying 'iyan, kinuha ang baril ko' (pp.
13-15, ibid.). Because appellant's jacket was short, his gesture
exposed a long magazine of an armalite rifle tucked in appellant's
back right pocket (p. 16, ibid.). SPO Mercado saw this and so when
appellant turned around as he was talking and proceeding to his
vehicle, Mercado confiscated the magazine from appellant (pp.
16-17, ibid.). Suspecting that appellant could also be carrying a
rifle inside the vehicle since he had a magazine, SPO2 Mercado
prevented appellant from going back to his vehicle by opening
himself the door of appellant's vehicle (16-17, ibid.). He saw a baby
armalite rifle (Exhibit D) lying horizontally at the front by the driver's
seat. It had a long magazine filled with live bullets in a semiautomatic mode (pp. 17-21,ibid.). He asked appellant for the
papers covering the rifle and appellant answered angrily that they
were at his home (pp. 26-27, ibid.). SPO Mercado modified the
arrest of appellant by including as its ground illegal possession of
firearms (p. 28, ibid.). SPO Mercado then read to appellant his
constitutional rights (pp. 28-29, ibid).
"The police officers brought appellant to the Traffic Division at Jake
Gonzales Boulevard (pp. 31-32, ibid.) where appellant voluntarily
surrendered a third firearm, a pietro berreta pistol (Exhibit 'L') with a
single round in its chamber and a magazine (pp. 33-35, ibid.)
loaded with seven (7) other live bullets. Appellant also voluntarily
surrendered a black bag containing two additional long
magazines and one short magazine(Exhibits M, N, and O, pp. 3637, ibid.) After appellant had been interrogated by the Chief of the
Traffic Division, he was transferred to the Police Investigation
Division at Sto. Rosario Street beside the City Hall Building where he
and the firearms and ammunitions were turned over to SPO2 Rene
Jesus Gregorio (pp. 5-10, TSN, July 13, 1993) During the
investigation, appellant admitted possession of the firearms stating
that he used them for shooting (p. 14, ibid.). He was not able to
produce any permit to carry or memorandum receipt to cover the
three firearms (pp. 16-18, TSN, January 25, 1994).
"On November 28, 1992, a certification (Exhibit 'F') was issued by
Captain, Senior Inspector Mario Espino, PNP, Chief, Record Branch
of the Firearms and Explosives Office (pp. 7-8, TSN, March 4, 1993).
The Certification stated that the three firearms confiscated from
appellant, an M-16 Baby armalite rifle SN-RP 1312 80, a .357 caliber
revolver Smith and Wesson SN 32919 and a .380 Pietro Beretta SNA35720, were not registered in the name of Robin C. Padilla (p.
6, ibid.). A second Certification dated December 11, 1992 issued

165

by Captain Espino stated that the three firearms were not also
registered in the name of Robinhood C. Padilla (p. 10, ibid)."

Petitioner's defenses are as follows: (1) that his arrest was illegal and consequently, the
firearms and ammunitions taken in the course thereof are inadmissible in evidence
under the exclusionary rule; (2) that he is a confidential agent authorized, under a
Mission Order and Memorandum Receipt, to carry the subject firearms; and (3) that the
penalty for simple illegal possession constitutes excessive and cruel punishment
proscribed by the 1987 Constitution. cdtai
After a careful review of the records 27 of this case, the Court is convinced
that petitioner's guilt of the crime charged stands on terra firma, notwithstanding the
Solicitor-General's change of heart.
Anent the first defense, petitioner questions the legality of his arrest. There
is no dispute that no warrant was issued for the arrest of petitioner, but that per se did
not make his apprehension at the Abacan bridge illegal.
Warrantless arrests are sanctioned in the following instances: 28
"Sec. 5. Arrest without warrant; when lawful. A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be
arrested has committed it;
(c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.
Paragraph (a) requires that the person be arrested (i) after he has committed or while
he is actually committing or is at least attempting to commit an offense, (ii) in the
presence of the arresting officer or private person. 29 Both elements concurred here, as
it has been established that petitioner's vehicle figured in a hit and run an offense
committed in the "presence" of Manarang, a private person, who then sought to arrest
petitioner. It must be stressed at this point that "presence" does not only require that the
arresting person sees the offense, but also when he "hears the disturbance created
thereby AND proceeds at once to the scene." 30 As testified to by Manarang, he heard
the screeching of tires followed by a thud, saw the sideswiped victim (balut vendor),
reported the incident to the police and thereafter gave chase to the erring Pajero
vehicle using his motorcycle in order to apprehend its driver After having sent a radio

report to the PNP for assistance, Manarang proceeded to the Abacan bridge where he
found responding policemen SPO2 Borja and SPO2 Miranda already positioned near the
bridge who effected the actual arrest of petitioner. 31
Petitioner would nonetheless insist on the illegality of his arrest by arguing that the
policemen who actually arrested him were not at, the scene of the hit and run. 32 We
beg to disagree. That Manarang decided to seek the aid of the policemen (who
admittedly were nowhere in the vicinity of the hit and run) in effecting petitioner's arrest,
did not in any way affect the propriety of the apprehension. It was in fact the most
prudent action Manarang could have taken rather than collaring petitioner by himself,
inasmuch as policemen are unquestionably better trained and well-equipped in
effecting an arrest of a suspect (like herein petitioner) who, in all probability, could have
put up a degree of resistance which an untrained civilian may not be able to contain
without endangering his own life. Moreover, it is a reality that curbing lawlessness gains
more success when law enforcers function in collaboration with private citizens. It is
precisely through this cooperation that the offense herein involved fortunately did not
become an additional entry to the long list of unreported and unsolved crimes.
It is appropriate to state at this juncture that a suspect, like petitioner herein,
cannot defeat the arrest which has been set in motion in a public place for want of a
warrant as the police was confronted by an urgent need to render aid or take
action. 33 The exigent circumstances of hot pursuit, 34 a fleeing suspect, a moving
vehicle, the public place and the raining nighttime all created a situation in which
speed is essential and delay improvident. 35 The Court acknowledges police
authority to make the forcible stop since they had more than mere "reasonable and
articulable" suspicion that the occupant of the vehicle has been engaged in criminal
activity. 36 Moreover, when caught inflagrante delicto with possession of an
unlicensed firearm (Smith & Wesson) and ammunition (M-16 magazine), petitioner's
warrantless arrest was proper as he was again actually committing another offense
(illegal possession of firearm and ammunitions) and this time in the presence of a
peace officer. 37
Besides, the policemen's warrantless arrest of petitioner could likewise be
justified under paragraph (b) as he had in fact just committed an offense. There
was no supervening event or a considerable lapse of time between the hit and run
and the actual apprehension. Moreover, after having stationed themselves at the
Abacan bridge in response to Manarang's report, the policemen saw for themselves
the fast approaching Pajero of petitioner, 38 its dangling plate number (PMA 777 as
reported by Manarang), and the dented hood and railings thereof. 39 These formed
part of the arresting police officer's personal knowledge of the facts indicating that
petitioner's Pajero was indeed the vehicle involved in the hit and run incident. Verily
then, the arresting police officers acted upon verified personal knowledge and not
on unreliable hearsay information. 40
Furthermore, in accordance with settled jurisprudence, any objection,
defect or irregularity attending an arrest must be made before the accused enters his
plea. 41 Petitioner's belated challenge thereto aside from his failure to quash the
information, his participation in the trial and by presenting his evidence, placed him in
estoppel to assail the legality of his arrest. 42 Likewise, by applying for bail, petitioner
patently waived such irregularities and defects.43

166

We now go to the firearms and ammunitions seized from petitioner without a

search warrant, the admissibility in evidence of which, we uphold.
The five (5) well-settled instances when a warrantless search and seizure of
property is valid, 44 are as follows:
1. warrantless search incidental to a lawful arrest recognized
underSection 12, Rule 126 of the Rules of Court 45 and by
prevailing jurisprudence; 46
2. Seizure of evidence in "plain view", the elements of which are: 47
(a). a prior valid intrusion based on the valid warrantless
arrest in which the police are legally present in
the pursuit of their official duties;
(b). the evidence was inadvertently discovered by the
police who had the right to be where they are;
(c). the evidence must be immediately apparent, and
(d). "plain view" justified mere seizure of evidence without
further search. 48
3. Search of a moving vehicle. 49 Highly regulated by the
government, the vehicle's inherent mobility reduces
expectation of privacy especially when its transit in public
thoroughfares furnishes a highly reasonable suspicion
amounting to probable cause that the occupant
committed a criminal activity. 50
4. consented warrantless search, and
5. customs search.
In conformity with respondent court's observation, it indeed appears that the authorities
stumbled upon petitioner s firearms and ammunitions without even undertaking any
active search which, as it is commonly understood, is a prying into hidden places for
that which is concealed. 51 The seizure of the Smith & Wesson revolver and an M-16 rifle
magazine was justified for they came within "plain view" of the policemen
who inadvertently discovered the revolver and magazine tucked in petitioner's waist
and back pocket respectively, when he raised his hands after alighting from his Pajero.
The same justification applies to the confiscation of the M-16 armalite rifle which
was immediately apparent to the policemen as they took a casual glance at the Pajero
and saw said rifle lying horizontally near the driver's seat. 52 Thus it has been held that:
"(W)hen in pursuing an illegal action or in the commission of a
criminal offense, the . . . police officers should happen to discover
a criminal offense being committed by any person, they are not

precluded from performing their duties as police officers for the

apprehension of the guilty person and the taking of the corpus
delicti. 53
"Objects whose possession are prohibited by law inadvertently
found in plain view are subject to seizure even without a
warrant." 54
With respect to the Berreta pistol and a black bag containing assorted magazines,
petitioner voluntarily surrendered them to the police. 55 This latter gesture of petitioner
indicated a waiver of his right against the alleged search and seizure, 56 and that his
failure to quash the information estopped him from assailing any purported defect. 57
Even assuming. that the firearms and ammunitions were products of an active search
done by the authorities on the person and vehicle of petitioner, their seizure without a
search warrant nonetheless can still be justified under a search incidental to a lawful
arrest (first instance). Once the lawful arrest was effected, the police may undertake a
protective search 58 of the passenger compartment and containers in the
vehicle 59 which are within petitioner's grabbing distance regardless of the nature of the
offense. 60 This satisfied the two-tiered test of an incidental search: (i) the item to be
searched (vehicle) was within the arrestee's custody or area of immediate
control 61 and (ii) the search was contemporaneous with the arrest. 62 The products of
that search are admissible evidence not excluded by the exclusionary rule. Another
justification is a search of a moving vehicle (third instance). In connection therewith, a
warrantless search is constitutionally permissible when, as in this case, the officers
conducting the search have reasonable or probable cause to believe, before the
search, that either the motorist is a law-offender (like herein petitioner with respect to
the hit and run) or the contents or cargo of the vehicle are or have been instruments or
the subject matter or the proceeds of some criminal offense. 63
Anent his second defense, petitioner contends that he could not be
convicted of violating P.D. 1866 because he is an appointed civilian agent authorized
to possess and carry the subject firearms and ammunition as evidenced by a Mission
Order 64 and Memorandum Receipt duly issued by PNP Supt. Rodialo Gumtang, the
deputy commander of Task Force Aguila, Lianga, Surigao del Sur. The contention
lacks merit.
In crimes involving illegal possession of firearm, two requisites must be
established, viz.: (1) the existence of the subject firearm and, (2) the fact that the
accused who owned or possessed the firearm does not have the corresponding
license or permit to possess. 65 The first element is beyond dispute as the subject
firearms and ammunitions 66 were seized from petitioner's possession via a valid
warrantless search, identified and offered in evidence during trial. As to the second
element, the same was convincingly proven by the prosecution. Indeed, petitioner's
purported Mission Order and Memorandum Receipt are inferior in the face of the
more formidable evidence for the prosecution as our meticulous review of the
records reveals that the Mission Order and Memorandum Receipt were mere
afterthoughts contrived and issued under suspicious circumstances. On this score, we
lift from respondent court's incisive observation. Thus:

167

"Appellant's contention is predicated on the assumption that the

Memorandum Receipts and Mission Order were issued before the
subject firearms were seized and confiscated from him by the
police officers in Angeles City. That is not so. The evidence
adduced indicate that the Memorandum Receipts and Mission
Order were prepared and executed long after appellant had
been apprehended on October 26, 1992.
"Appellant, when apprehended, could not show any document as
proof of his authority to possess and carry the subject firearms.
During the preliminary investigation of the charge against him for
illegal possession of firearms and ammunitions he could not,
despite the ample time given him, present any proper document
showing his authority. If he had, in actuality, the Memorandum
Receipts and Missions Order, he could have produced those
documents easily, if not at the time of apprehension, at least
during the preliminary investigation. But neither appellant nor his
counsel inform the prosecutor that appellant is authorized to
possess and carry the subject firearms under Memorandum
Receipt and Mission Order. At the initial presentation of his
evidence in court, appellant could have produced these
documents to belie the charged against him. Appellant did not.
He did not even take the witness stand to explain his possession of
the subject firearms.
"Even in appellant's Demurrer to Evidence filed after the
prosecution rested contain no allegation of a Memorandum
Receipts and Mission Order authorizing appellant to possess and
carry the subject firearms.
"At the initial presentation of appellant's evidence, the witness
cited was one James Neneng to whom a subpoena was issued.
Superintendent Gumtang was not even mentioned. James
Neneng appeared in court but was not presented by the defense.
Subsequent hearings were reset until the defense found
Superintendent Gumtang who appeared in court without
subpoena on January 13, 1994" 67
The Court is baffled why petitioner failed to produce and present the Mission Order and
Memorandum Receipt if they were really issued and existing before his apprehension.
Petitioner's alternative excuses that the subject firearms were intended for theatrical
purposes, or that they were owned by the Presidential Security Group, or that his Mission
Order and Memorandum Receipt were left at home, further compound their irregularity.
As to be reasonably expected, an accused claiming innocence, like herein petitioner,
would grab the earliest opportunity to present the Mission Order and Memorandum
Receipt in question and save himself from the long and agonizing public trial and spare
him from proffering inconsistent excuses. In fact, the Mission Order itself, as well as the
Letter-Directive of the AFP Chief of Staff, is explicit in providing that: cdtai

"VIII. c. When a Mission Order is requested for verification by

enforcement units/personnel such as PNP, Military Brigade and
other Military Police Units of AFP, the Mission Order should be shown
without resentment to avoid embarrassment and/or
misunderstanding.
"IX. d. Implicit to this Mission Order is the injunction that the
confidential instruction will be carried out through all legal means
and do not cover an actuation in violation of laws. In the latter
event, this Mission Order is rendered inoperative in respect to such
violation." 68
which directive petitioner failed to heed without cogent explanation.
The authenticity and validity of the Mission Order and Memorandum Receipt, moreover,
were ably controverted. Witness for the prosecution Police Supt. Durendes denied under
oath his signature on the dorsal side of the Mission Order and declared further that he
did not authorize anyone to sign in his behalf.69 His surname thereon, we note, was
glaringly misspelled as "Durembes." 70 In addition, only Unit Commanders and Chief of
Offices have the authority to issue Mission Orders and Memorandum Receipts under
the Guidelines on the Issuance of Mos, MRs, & PCFORs. 71 PNP Supt. Rodialo Gumtang
who issued petitioner's Mission Order and Memorandum Receipt is neither a Unit
Commander nor the Chief of Office, but a mere deputy commander. Having
emanated from an unauthorized source, petitioner's Mission Order and Memorandum
Receipt are infirm and lacking in force and effect. Besides, the Mission Order covers
"Recom 1-12-Baguio City." 72 areas outside Supt. Gumtang's area of responsibility
thereby needing prior approval "by next higher Headquarters" 73 which is absent in this
case. The Memorandum Receipt is also unsupported by a certification as required by
the March 5, 1988 Memorandum of the Secretary of Defense which pertinently provides
that:
"No memorandum receipt shall be issued for a CCS firearms
withoutcorresponding certification from the corresponding
Responsible Supply Officer of the appropriate AFP unit that such
firearm has been officiallytaken up in that unit's property book,
and that report of such action has been reported to higher AFP
authority."
Had petitioner's Memorandum Receipt been authentic, we see no reason why he
cannot present the corresponding certification as well.
What is even more peculiar is that petitioner's name, as certified to by the Director for
Personnel of the PNP, does not even appear in the Plantilla of Non-Uniform Personnel or
in the list of Civilian Agents or Employees of the PNP which could justify the issuance of a
Mission Order, a fact admitted by petitioner's counsel. 74 The implementing rules of P.D.
1866 issued by the then PC-INP Chief and Director-General Lt. Gen. Fidel V. Ramos are
clear and unambiguous, thus:

168

"No Mission Order shall be issued to any civilian agent authorizing

the same to carry firearms outside residence unless he/she is
included in the regular plantilla of the government agency
involved in law enforcement and is receiving regular
compensation for the services he/she is rendering in the agency.
Further, the civilian agent must be included in a special law
enforcement/police/intelligence project proposal or special
project which specifically required the use of firearms(s) to insure its
accomplishment and that the project is duly approved at the PC
Regional Command level or its equivalent level in other major
services of the AFP, INP and-NBI, or at higher levels of
command." 75
Circular No. 1, dated January 6, 1986, of the then Ministry of Justice likewise provides as
follows:
"If mission orders are issued to civilians (not members of the
uniformed service), they must be civilian agents included in the
regular plantilla of the government agency involved in law
enforcement and are receiving regular compensation for the
service they are rendering."
That petitioner's Mission Order and Memorandum Receipt were fabricated pieces of
evidence is accentuated all the more by the testimony and certification of the Chief of
the Records Branch of the firearms and Explosives Office of the PNP declaring that
petitioner's confiscated firearms are not licensed or registered in the name of the
petitioner. 76 Thus:
"Q. In all these files that you have just mentioned Mr. Witness, what
did you find, if any?
"A. I found that a certain Robin C Padilla is a licensed registered
owner of one 9 mm pistol, Smith and Wesson with
Serial No. TCT 8214 and the following firearms being asked
whether it is registered or not, I did not find any records,
the M-16 and the caliber .357 and the caliber .380 but
there is a firearm with the same serial number which is the
same as that licensed and/or registered in the name of
one Albert Villanueva Fallorina.
"Q. So in short, the only licensed firearms in the name of accused
Robin C. Padilla is a pistol, Smith and Wesson, caliber 9
mm with Serial No. TCT 8214?
"A. Yes, sir.
"Q. And the firearms that were the subject of this case are not listed
in the names of the accused in this case?

"A. Yes, sir. 77

xxx xxx xxx
And the certification which provides as follows:
Republic of the Philippines
Department of the Interior and Local Government
GENERAL HEADQUARTERS PHILIPPINE NATIONAL POLICE
FIREARMS AND EXPLOSIVES OFFICE
Camp Crame, Quezon City
"PNPFEO5 November 28, 1992
"C E R T I F I C A T I O N
"TO WHOM IT MAY CONCERN:
"THIS IS TO CERTIFY that Robin C. Padilla of 59 Labo St., Quezon City
is a licensed/registered holder of Pistol Smith and Wesson Cal 9mm
with serial number TCT8214 covered by License No. RL
M76C4476687.
"Further certify that the following firearms are not registered with
this Office per verification from available records on file this Office
as of this date:
M16 Baby Armalite SN-RP131120
Revolver Cal 357 SN-3219
Pistol Cal 380 Pietro Beretta SN-35723
"However, we have on file one Pistol Cal 380, Beretta with
serial number35723Y, licensed/registered to one Albert Villanueva
Fallorina of 29 San Juan St., Capitol Pasig, MM under Re-Registered
License.
"This certification is issued pursuant to Subpoena from City of
Angeles.

"FOR THE CHIEF, FEO:

169

(Sgd.)
JOSE MARIO
M. ESPINO
Sr. Inspector,
PNP
Chief,
Records
Branch" 78

In several occasions, the Court has ruled that either the testimony of a representative of,
or a certification from, the. PNP Firearms and Explosives Office (FEO) attesting that a
person is not a licensee of any firearm would suffice to prove beyond reasonable doubt
the second element of illegal possession of firearm. 79 In People vs. Tobias, 80 we
reiterated that such certification is sufficient to show that a person has in fact no license.
From the foregoing discussion, the fact that petitioner does not have the license or
permit to possess was overwhelmingly proven by the prosecution. The certification may
even be dispensed with in the light of the evidence 81 that an M-16 rifle and any short
firearm higher than a .38 caliber pistol, akin to the confiscated firearms, cannot be
licensed to a civilian, 82 as in the case of petitioner The Court, therefore,
entertains no doubt in affirming petitioner's conviction especially as we find noplausible
reason and none was presented, to depart from the factual findings of both the trial
court and respondent court which, as a rule, are accorded by the Court with respect
and finality. 83
Anent his third defense, petitioner faults respondent court "in applyingP.D.
1866 in a democratic ambience (sic) and a non subversive context" and adds that
respondent court should have applied instead the previous laws on illegal possession
of firearms since the reason for the penalty imposed underP.D. 1866 no longer
exists. 84 He stresses that the penalty of 17 years and 4 months to 21 years for simple
illegal possession of firearm is cruel and excessive in contravention of the
Constitution. 85
The contentions do not merit serious consideration. The trial court and the
respondent court are bound to apply the governing law at the time of appellant's
commission of the offense for it is a rule that laws are repealed only by subsequent
ones. 86 Indeed, it is the duty of judicial officers to respect and apply the law as it
stands. 87 And until its repeal, respondent court can not be faulted for applying P.D.
1866 which abrogated the previous statutes adverted to by petitioner.

Equally lacking in merit is appellant's allegation that the penalty for simple
illegal possession is unconstitutional. The penalty for simple possession of firearm, it
should be stressed, ranges from reclusion temporal maximum toreclusion

perpetua contrary to appellant's erroneous averment. The severity of a penalty does

not ipso facto make the same cruel and excessive.
"It takes more than merely being harsh, excessive, out of
proportion, or severe for a penalty to be obnoxious to the
Constitution. 'The fact that the punishment authorized by the
statute is severe does not make it cruel and unusual' (24 C.J.S.,
1187-1188). Expressed in other terms, it has been held that to come
under the ban, the punishment must be 'flagrantly and plainly
oppressive', 'wholly disproportionate to the nature of the offense as
to shock the moral sense of the community." 88
It is well-settled that as far as the constitutional prohibition goes, it is not so much the
extent as the nature of the punishment that determines whether it is, or is not, cruel and
unusual and that sentences of imprisonment, though perceived to be harsh, are not
cruel or unusual if within statutory limits. 89
Moreover, every law has in its favor the presumption of constitutionality. The burden of
proving the invalidity of the statute in question lies with the appellant which burden, we
note, was not convincingly discharged. To justify nullification of the law, there must be a
clear and unequivocal breach of the Constitution, not a doubtful and argumentative
implication, 90 as in this case. In fact, the constitutionality of P.D. 1866 has been upheld
twice by this Court. 91 Just recently, the Court declared that "the pertinent laws on
illegal possession of firearms [are not] contrary to any provision of the Constitution. . .
" 92 Appellant's grievance on the wisdom of the prescribed penalty should not be
addressed to us. Courts are not concerned with the wisdom, efficacy or morality of
laws. That question falls exclusively within the province of Congress which enacts them
and the Chief Executive who approves or vetoes them. The only function of the courts,
we reiterate, is to interpret and apply the laws.
With respect to the penalty imposed by the trial court as affirmed by
respondent court (17 years 4 months and 1 day of reclusion temporal, as minimum, to
21 years of reclusion perpetua, as maximum), we reduce the same in line with the
fairly recent case of People v. Lian 93 where the Court en banc provided that the
indeterminate penalty imposable for simple illegal possession of firearm, without any
mitigating or aggravating circumstance, should be within the range of ten (10) years
and one (1) day to twelve years (12) of prision mayor, as minimum, to eighteen (18)
years, eight (8) months and one (1 ) day to twenty (20) of reclusion temporal, as
maximum. This is discernible from the following explanation by the Court:
"In the case at bar, no mitigating or aggravating circumstances
have been alleged or proved, In accordance with the doctrine
regarding special laws explained in People
v. Simon, 94 although Presidential Decree No. 1866 is a special law,
the penalties therein were taken from the Revised Penal Code,
hence the rules in said Code for graduating by degrees or
determining the proper period should be applied

170

Consequently, the penalty for the offense of simple illegal

possession of firearm is the medium period of the complex penalty
in said Section 1, that is, 18 years, 8 months and 1 day to 20 years.
"This penalty, being that which is to be actually imposed in
accordance with the rules therefor and not merely imposable as a
general prescription under the law, shall be the maximum of the
range of the indeterminate sentence. The minimum thereof shall
be taken, as aforesaid, from any period of the penalty next lower in
degree, which is,prision mayor in its maximum period to reclusion
temporal in its medium period. 95
WHEREFORE, premises considered, the decision of the Court of Appeals sustaining
petitioner's conviction by the lower court of the crime of simple illegal possession of
firearms and ammunitions is AFFIRMED EXCEPT that petitioner's indeterminate penalty
MODIFIED to "ten (10) years and one (1) day, as minimum, to eighteen (18) years, eight
(8) months and one (1) day, as maximum. cdtai

disbelieving him, held it was high time to put him away and sentenced him to life
imprisonment plus a fine of P20,000.00. 1

Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V
Wilcon 9 at about 8:30 in the evening, in Iloilo City. The PC officers who were in fact
waiting for him simply accosted him, inspected his bag and finding what looked liked
marijuana leaves took him to their headquarters for investigation. The two bundles of
suspect articles were confiscated from him and later taken to the NBI laboratory for
examination. When they were verified as marijuana leaves, an information for violation
of the Dangerous Drugs Act was filed against him. 2 Later, the information was
amended to include Farida Ali y Hassen, who had also been arrested with him that
same evening and likewise investigated. 3 Both were arraigned and pleaded not
guilty. 4 Subsequently, the fiscal filed a motion to dismiss the charge against Ali on the
basis of a sworn statement of the arresting officers absolving her after a "thorough
investigation."5 The motion was granted, and trial proceeded only against the accusedappellant, who was eventually convicted. 6

SO ORDERED.
Narvasa, C .J ., Davide, Jr., Melo and Panganiban, JJ ., concur.
||| (Padilla v. Court of Appeals, G.R. No. 121917, [March 12, 1997], 336 PHIL
383-414)

33- People v. Amminudin, G.R. No. 74869, 6 July 1988

FIRST DIVISION
[G.R. No. 74869. July 6, 1988.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. IDEL AMINNUDIN y
AHNI, defendant-appellant.
The Solicitor General, for plaintiff-appellee.
Herminio T. Llariza counsel de-officio, for defendant-appellant.

DECISION
CRUZ, J p:
The accused-appellant claimed his business was selling watches but he was nonetheless
arrested, tried and found guilty of illegally transporting marijuana. The trial court,

According to the prosecution, the PC officers had earlier received a tip from one of
their informers that the accused-appellant was on board a vessel bound for Iloilo City
and was carrying marijuana. 7 He was identified by name. 8 Acting on this tip, they
waited for him in the evening of June 25, 1984, and approached him as he descended
from the gangplank after the informer had pointed to him. 9They detained him and
inspected the bag he was carrying. It was found to contain three kilos of what were
later analyzed as marijuana leaves by an NBI forensic examiner, 10 who testified that
she conducted microscopic, chemical and chromatographic tests on them. On the
basis of this finding, the corresponding charge was then filed against Aminnudin.
In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag
was his clothing consisting of a jacket, two shirts and two pairs of pants.11 He alleged
that he was arbitrarily arrested and immediately handcuffed. His bag was confiscated
without a search warrant. At the PC headquarters, he was manhandled to force him to
admit he was carrying the marijuana, the investigator hitting him with a piece of wood
in the chest and arms even as he parried the blows while he was still handcuffed. 12 He
insisted he did not even know what marijuana looked like and that his business was
selling watches and sometimes cigarettes. 13 He also argued that the marijuana he was
alleged to have been carrying was not properly identified and could have been any of
several bundles kept in the stock room of the PC headquarters. 14
The trial court was unconvinced, noting from its own examination of the accused that
he claimed to have come to Iloilo City to sell watches but carried only two watches at
the time, traveling from Jolo for that purpose and spending P107.00 for fare, not to
mention his other expenses. 15 Aminnudin testified that he kept the two watches in a
secret pocket below his belt but, strangely, they were not discovered when he was
bodily searched by the arresting officers nor were they damaged as a result of his
manhandling. 1 6 He also said he sold one of the watches for P400.00 and gave away

171

the other, although the watches belonged not to him but to his cousin, 17 to a friend
whose full name he said did not even know. 18 The trial court also rejected his
allegations of maltreatment, observing that he had not sufficiently proved the injuries
sustained by him. 19

There is no justification to reverse these factual findings, considering that it was the trial
judge who had immediate access to the testimony of the witnesses and had the
opportunity to weigh their credibility on the stand. Nuances of tone or voice, meaningful
pauses and hesitation, flush of face and dart of eyes, which may reveal the truth or
expose the lie, are not described in the impersonal record. But the trial judge sees all of
this, discovering for himself the truant fact amidst the falsities.
The only exception we may make in this case is the trial court's conclusion that the
accused-appellant was not really beaten up because he did not complain about it
later nor did he submit to a medical examination. That is hardly fair or realistic. It is
possible Aminnudin never had that opportunity as he was at that time under detention
by the PC authorities and in fact has never been set free since he was arrested in 1984
and up to the present. No bail has been allowed for his release.
There is one point that deserves closer examination, however, and it is Aminnudin's claim
that he was arrested and searched without warrant, making the marijuana allegedly
found in his possession inadmissible in evidence against him under the Bill of Rights. The
decision did not even discuss this point. For his part, the Solicitor General dismissed this
after an all-too-short argument that the arrest of Aminnudin was valid because it came
under Rule 113, Section 6(b) of the Rules of Court on warrantless arrests. This made the
search also valid as incidental to a lawful arrest.
It is not disputed, and in fact it is admitted by the PC officers who testified for the
prosecution, that they had no warrant when they arrested Aminnudin and seized the
bag he was carrying. Their only justification was the tip they had earlier received from a
reliable and regular informer who reported to them that Aminnudin was arriving in Iloilo
by boat with marijuana. Their testimony varies as to the time they received the tip, one
saying it was two days before the arrest, 20another two weeks 21 and a third "weeks
before June 25." 22 On this matter, we may prefer the declaration of the chief of the
arresting team, Lt. Cipriano Querol, Jr., who testified as follow:
"Q You mentioned an intelligence report, you mean with respect to
the coming of Idel Aminnudin on June 25, 1984?

"Q Were you informed of the coming of the Wilcon 9 and the
possible trafficking of marijuana leaves on that date?
"A Yes, sir, two days before June 25, 1984 when we received this
information from that particular informer, prior to June 25,
1984 we have already reports of the particular operation
which was being participated by Idel Aminnudin.
"Q You said you received an intelligence report two days before
June 25, 1984 with respect to the coming of Wilcon 9?
"A Yes, sir.
"Q Did you receive any other report aside from this intelligence
report?
"A Well, I have received also other reports but not pertaining to the
coming of Wilcon 9. For instance, report of illegal
gambling operation.
"COURT:
"Q Previous to that particular information which you said two days
before June 25, 1984, did you also receive any report
regarding the activities of Idel Aminnudin?
"A Previous to June 25, 1984 we received reports on the activities of
Idel Aminnudin.
"Q What were those activities?
"A Purely marijuana trafficking.
"Q From whom did you get that information?
"A It came to my hand which was written in a required sheet of
information, maybe for security reason and we cannot
identify the person.
"Q But you received it from your regular informer?

"A Yes, sir.

"A Yes, sir.

"Q When did you receive this intelligence report?

"ATTY. LLARIZA:

"A Two days before June 25, 1984 and it was supported by reliable
sources.

"Q Previous to June 25, 1984, you were more or less sure that Idel
Aminnudin is coming with drugs?
"A Marijuana, sir.

172

"Q And this information respecting Idel Aminnudin's coming to Iloilo

with marijuana was received by you many days before
you received the intelligence report in writing?
"A Not a report of the particular coming of Aminnudin but his
activities.
"Q You only knew that he was coming on June 25, 1984 two days
before?
"A Yes, sir.
"Q You mean that before June 23, 1984 you did not know that
Aminnudin was coming?

"Q Why not?

"A Because we were very very sure that our operation will yield
positive result.
"Q Is that your procedure that whenever it will yield positive result
you do not need a search warrant anymore?
"A Search warrant is not necessary." 23
That last answer is a cavalier pronouncement, especially as it comes from a mere
lieutenant of the PC. The Supreme Court cannot countenance such a statement. This is
still a government of laws and not of men.
The mandate of the Bill of Rights is clear:

"A Before June 23, 1984, I, in my capacity, did not know that he
was coming but on June 23, 1984 that was the time when
I received the information that he was coming. Regarding
the reports on his activities, we have reports that he has
already consummated the act of selling and shipping
marijuana stuff.
"COURT:

"Sec. 2. The right of the people to be secure in their persons,

houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place
to be searched and the persons or things to be seized."

"Q And as a result of that report, you put him under surveillance?
"A Yes, sir.
"Q In the intelligence report, only the name of Idel Aminnudin was
mentioned?
"A Yes, sir.
"Q Are you sure of that?
"A On the 23rd he will be coming with the woman.
"Q So that even before you received the official report on June 23,
1984, you had already gathered information to the effect
that Idel Aminnudin was coming to Iloilo on June 25,
1984?
"A Only on the 23rd of June.
"Q You did not try to secure a search warrant for the seizure or
search of the subject mentioned in your intelligence
report?
"A No, more.

In the case at bar, there was no warrant of arrest or search warrant issued by a judge
after personal determination by him of the existence of probable cause. Contrary to the
averments of the government, the accused-appellant was not caught in flagrante nor
was a crime about to be committed or had just been committed to justify the
warrantless arrest allowed under Rule 113 of the Rules of Court. Even expediency could
not be invoked to dispense with the obtention of the warrant as in the case of Roldan v.
Arca, 24 for example. Here it was held that vessels and aircraft are subject to
warrantless searches and seizures for violation of the customs law because these
vehicles may be quickly moved out of the locality or jurisdiction before the warrant can
be secured.
The present case presented no such urgency. From the conflicting declarations of the
PC witnesses, it is clear that they had at least two days within which they could have
obtained a warrant to arrest and search Aminnudin who was coming to Iloilo on the
M/V Wilcon 9. His name was known. The vehicle was identified. The date of its arrival
was certain. And from the information they had received, they could have persuaded a
judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet
they did nothing. No effort was made to comply with the law. The Bill of Rights was
ignored altogether because the PC lieutenant who was the head of the arresting team,
had determined on his own authority that "search warrant was not necessary."
In the many cases where this Court has sustained the warrantless arrest of violators
of the Dangerous Drugs Act, it has always been shown that they were caught redhanded, as result of what are popularly called "buy-bust" operations of the narcotics

173

agents. 25 Rule 113 was clearly applicable because at the precise time of arrest the
accused was in the act of selling the prohibited drug.

society to violate a law to enforce another, especially if the law violated is the
Constitution itself.

In the case at bar, the accused-appellant was not, at the moment of his arrest,
committing a crime nor was it shown that he was about to do so or that he had just
done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and
there was no outward indication that called for his arrest. To all appearances, he was
like any of the other passengers innocently disembarking from the vessel. It was only
when the informer pointed to him as the carrier of the marijuana that he suddenly
became suspect and so subject to apprehension. It was the furtive finger that triggered
his arrest. The identification by the informer was the probable cause as determined by
the officers (and not a judge) that authorized them to pounce upon Aminnudin and
immediately arrest him.

We find that with the exclusion of the illegally seized marijuana as evidence against the
accused-appellant, his guilt has not been proved beyond reasonable doubt and he
must therefore be discharged on the presumption that he is innocent.

Now that we have succeeded in restoring democracy in our country after fourteen
years of the despised dictatorship, when any one could be picked up at will, detained
without charges and punished without trial, we will have only ourselves to blame if that
kind of arbitrariness is allowed to return, to once more flaunt its disdain of the
Constitution and the individual liberties its Bill of Rights guarantees.

34- People v. Zenaida Quebral, G.R. No. 185379, 27 November 2009

ACCORDINGLY, the decision of the trial court is REVERSED and the accused-appellant is
ACQUITTED. It is so ordered.
Narvasa, Gancayco and Medialdea JJ. concur.

SECOND DIVISION

While this is not to say that the accused-appellant is innocent, for indeed his very own
words suggest that he is lying, that fact alone does not justify a finding that he is guilty.
The constitutional presumption is that he is innocent, and he will be so declared even if
his defense is weak as long as the prosecution is not strong enough to convict him.

Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the
prosecution must fall. That evidence cannot be admitted, and should never have been
considered by the trial court for the simple fact is that the marijuana was seized illegally.
It is the fruit of the poisonous tree, to use Justice Holmes' felicitous phrase. The search
was not an incident of a lawful arrest because there was no warrant of arrest and the
warrantless arrest did not come under the exceptions allowed by the Rules of Court.
Hence, the warrantless search was also illegal and the evidence obtained thereby was
inadmissible.
The Court strongly supports the campaign of the government against drug addiction
and commends the efforts of our law-enforcement officers against those who would
inflict this malediction upon our people, especially the susceptible youth. But as
demanding as this campaign may be, it cannot be more so than the compulsions of
the Bill of Rights for the protection of the liberty of every individual in the realm, including
the basest of criminals. The Constitution covers with the mantle of its protection the
innocent and the guilty alike against any manner of high-handedness from the
authorities, however praiseworthy their intentions.
Those who are supposed to enforce the law are not justified in disregarding the rights of
the individual in the name of order. Order is too high a price for the loss of liberty. As
Justice Holmes, again, said, "I think it a less evil that some criminal should escape than
that the government should play an ignoble part." It is simply not allowed in the free

[G.R. No. 185379. November 27, 2009.]

PEOPLE OF THE PHILIPPINES, appellee, vs. ZENAIDA QUEBRAL y
MATEO, FERNANDO LOPEZ y AMBUS and MICHAEL SALVADOR y
JORNACION, appellants.
DECISION
ABAD, J p:
This case is about the requirement of authentication of seized prohibited
drugs and the conduct of warrantless search of a suspect by the roadside based
on probable cause.
The Facts and the Case
The provincial prosecutor of Bulacan charged the accused Zenaida
Quebral, Eusebio Quebral, Fernando Lopez, and Michael Salvador before the
Regional Trial Court (RTC) of Malolos, Bulacan, in Criminal Case 3331-M-2002 with
violation of Section 5, Article II of Republic Act 9165 or theComprehensive
Dangerous Drugs Act of 2002.
At the trial of this case, the prosecution presented PO3 Cecilio Galvez of
the police force of Balagtas, Bulacan, who testified that at 7:00 p.m. on September
7, 2002, the Chief of the Drug Enforcement Unit called him and other police officers
to a briefing regarding a police informer's report that two men and a woman on
board an owner type jeep with a specific plate numberwould deliver shabu, a
prohibited drug, on the following day at a Petron Gasoline Station in Balagtas to
Michael Salvador, a drug pusher in the police watch list. 1

174

2. Whether or not the prosecution presented ample proof of

appellants' guilt beyond reasonable doubt.
After a short briefing on the morning of September 8, 2002, PO3 Galvez
and six other police officers went to the North Luzon Expressway Balagtas Exit at
Burol 2nd, watching out for the owner type jeep mentioned. They got there at
around 7:45 a.m. Since the informer did not give the exact time of the delivery
of shabu, the police officers staked out the expressway exit until late afternoon. At
around 4:00 p.m., such a jeep, bearing the reported platenumber and with two
men and a woman on board, came out of the Balagtas Exit. Galvez identified the
two men as accused Eusebio Quebral, who drove the jeep, and accusedappellant Fernando Lopez and the woman as accused-appellant Zenaida
Quebral. The police trailed the jeep as it proceeded to the town proper of Balagtas
and entered a Petron gas station along the McArthur Highway. AaSIET
After a few minutes, a Tamaraw FX arrived from which accused-appellant
Michael Salvador alighted. He walked towards the jeep and talked to accused
Zenaida Quebral, who then handed a white envelope to him. On seeing this, PO3
Galvez, who was watching from about 15 meters in a tinted car, signaled his backup team to move. The police officers alighted from their vehicles and surrounded
the jeep. Galvez took the envelope from Michael, opened it, and saw five plastic
sachets containing white crystalline substance which he believed was shabu.
The Bulacan Provincial Crime Laboratory Office later examined the
substance and submitted a chemistry report, 2 stating that it was shabu or
methylamphetamine hydrochloride, a prohibited drug.
Appellants denied having committed the crime, claiming only that PO3
Galvez and his fellow police officers merely framed them up.
On March 18, 2004 the RTC found all four accused guilty of the crime
charged and sentenced them to suffer the penalty of life imprisonment and to pay
a fine of P5 million.
On May 20, 2005, while the Court of Appeals (CA) was reviewing the case
on appeal in CA-G.R. CR-HC 01997, accused Eusebio Quebral died, prompting it to
dismiss the case against him. On February 13, 2008, the CA rendered
judgment, 3 entirely affirming the decision of the RTC. The remaining accused
appealed to this Court.
The Issues Presented
Appellants basically raise two issues for this Court's resolution:
1. Whether or not the CA erred in not excluding the evidence of
the seized shabu on the ground that, having illegally arrested the
accused, the police officers' subsequent search of their persons
incident to such arrest was also illegal; and

The Rulings of the Court

One. The accused claim that since the police did not have valid ground
to arrest them, their subsequent search of them was illegal and the evidence of the
seized shabu cannot be admitted in evidence against them. With the exclusion of
the seized drugs, there would not be proof that they were passing them.
The accused-appellants invoke the rule that a person may be arrested
even without a warrant only a) if he is caught in the act of committing a crime, b) if
he has just committed a crime and the arresting officer pursued him, or c) if he
escaped from a legal confinement. 4 But in the first two instances, the officer must
have personal knowledge of the facts underlying the arrest. The target person's
observable acts must clearly spell a crime. If no crime is evident from those
acts, no valid arrest can be made. An informant whispering to the police officer's
ear that the person walking or standing on the street has committed or is
committing a crime will not do. The arresting officer must himself perceive the
manifestations of a crime. 5 ETIHCa
The accused-appellants point out that in this case the police officers
cannot say that what they saw from a distance constituted a crime. Two men and
a woman arrived on board a jeep at the gas station. A third man approached the
jeep, spoke to the woman and she handed him a folded white envelope that
appeared to contain something. These acts do not constitute a crime per
se. Consequently, their arrest at this point was illegal. The subsequent search of their
persons, not being based on a valid arrest, was itself illegal.
But, actually, it was more of a search preceding an arrest. The police
officers had information that two men and a woman on board an owner type jeep
would arrive in Balagtas and hand over a consignment of shabu at a gas station in
town to a known drug dealer whose name was on the police watch list. When
these things unfolded before their eyes as they watched from a distance, the
police came down on those persons and searched them, resulting in the discovery
and seizure of a quantity of shabu in their possession. In such a case, the search is a
valid search justifying the arrest that came after it.
This Court held in People v. Bagista 6 that the NARCOM officers had
probable cause to stop and search all vehicles coming from the north at Acop,
Tublay, Benguet, in view of the confidential information they received from their
regular informant that a woman fitting the description of the accused would be
bringing marijuana from up north. They likewise had probable cause to search her
belongings since she fitted the given description. In such a case, the warrantless
search was valid and, consequently, any evidence obtained from it is admissible
against the accused.
As the lower court aptly put it in this case, the law enforcers already had
an inkling of the personal circumstances of the persons they were looking for and

175

the criminal act they were about to commit. That these circumstances played out
in their presence supplied probable cause for the search. The police acted on
reasonable ground of suspicion or belief supported by circumstances sufficiently
strong in themselves to warrant a cautious man to believe that a crime has been
committed or is about to be committed. 7 Since the seized shabu resulted from a
valid search, it is admissible in evidence against the accused.
It would have been impractical for the police to apply with the
appropriate court for a search warrant since their suspicion found factual support
only at the moment accused Eusebio Quebral, Fernando Lopez, and Zenaida
Quebral rendezvoused with Michael Salvador at the Petron gas station for the
hand over of the drugs. An immediate search was warranted since they would
have gone away by the time the police could apply for a search warrant. 8 The
drugs could be easily transported and concealed with impunity. 9
The case of People v. Aminnudin 10 cannot apply to this case.
InAminnudin, the informant gave the police the name and description of the
person who would be coming down from a ship the following day carrying a
shipment of drugs. In such a case, the Court held that the police had ample time to
seek a search warrant against the named person so they could validly search his
luggage. In the present case, all the information the police had about the persons
in possession of the prohibited drugs was that they were two men and a woman on
board an owner type jeep. A search warrant issued against such persons could be
used by the police to harass practically anyone.EIDTAa
Two. The accused-appellants point out that the testimony of PO3 Galvez
cannot support their conviction since it does not bear the corroboration of the
other officers involved in the police operation against them. But the failure of these
other officers did not weaken the prosecution evidence. The lone declaration of an
eyewitness is sufficient to convict if, as in this case, the court finds the same
credible. 11 Credibility goes into a person's integrity, to the fact that he is worthy of
belief, 12 and does not come with the number of witnesses. 13
The accused-appellants also point out that, since the chemist who
examined the seized substance did not testify in court, the prosecution was unable
to establish the indispensable element of corpus delicti. But this claim is
unmeritorious. This Court has held that the non-presentation of the forensic chemist
in illegal drug cases is an insufficient cause for acquittal. 14The corpus delicti in
dangerous drugs cases constitutes the dangerous drug itself. This means that proof
beyond doubt of the identity of the prohibited drug is essential. 15

Besides, corpus delicti has nothing to do with the testimony of the

laboratory analyst. In fact, this Court has ruled that the report of an official forensic
chemist regarding a recovered prohibited drug enjoys the presumption of
regularity in its preparation. Corollarily, under Section 44 of Rule 130, Revised Rules
of Court, entries in official records made in the performance of official duty
are prima facie evidence of the facts they state. 16Therefore, the report of Forensic

Chemical Officer Sta. Maria that the five plastic sachets PO3 Galvez gave to her for
examination contained shabu is conclusive in the absence of evidence proving
the contrary. At any rate, as the CA pointed out, the defense agreed during trial to
dispense with the testimony of the chemist and stipulated on his findings. 17
Parenthetically, the accused-appellants raised their objection to the police chemist's
report only on appeal when such objection should have been made when the
prosecution offered the same in evidence. They may, thus, be considered to have
waived their objection to such report. 18 The familiar rule in this jurisdiction is that the
inadmissibility of certain documents, if not urged before the court below, cannot be
raised for the first time on appeal. 19
The accused-appellants take advantage of PO3 Galvez's testimony that
they conducted their operation on September 2, 2002, the date that the informant
gave them, and that the following day was September 8, 2002 20 to attack his
credibility. But inconsistency is trivial and appears to be a pure mistake. Lapses like
this even enhance the truthfulness of the testimony of a witness as they erase any
suspicion of a rehearsed declaration. 21 Besides, PO3 Galvez corrected this mistake
on cross-examination. He said that their informant gave them his tip at 7:00 p.m. of
September 7, 2002. 22
Finally, the accused-appellants contend that the prosecution evidence
failed to show compliance with the requirements of law for handling evidence. But,
as has been held in a recent case, 23 failure to comply strictly with those
requirements will not render the seizure of the prohibited drugs invalid for so long as
the integrity and evidentiary value of the confiscated items are properly preserved
by the apprehending officers. Besides, the accused-appellants did not raise it
before the trial court, hence, they cannot raise it for the first time on
appeal. 24 ECaSIT
The CA and the RTC gave credence to the testimony of PO3 Galvez and
this Court finds no reason for disagreement. His narration was clear and candid. On
the other hand, the accused-appellants' claim of a "frame-up" was easy to
concoct and so has been the common line of defense in most cases involving
violations of the Dangerous Drugs Act. 25 Such defense requires strong and
convincing evidence which the accused-appellants failed to satisfy.
As the trial court correctly observed, the accused-appellants failed to
provide any reason why of all the people plying through the roads they had taken,
the police chose to frame them up for the crime. They also failed to explain why
the police would plant such huge amount of shabu if a small quantity would be
sufficient to send them to jail. 26 No arresting officer would plant such quantity
of shabu solely to incriminate the accused who have not been shown to be of
good financial standing. 27
WHEREFORE, the Court DENIES the appeal and AFFIRMS the decision of the
Court of Appeals dated February 13, 2008 and of the Regional Trial Court of Malolos
dated March 18, 2004.

176

SO ORDERED.

Reply. 10 AFP-RSBS, 11 Espreme Realty, 12and, BPI 13 filed their respective Motions to
Dismiss which respondents opposed.HDIaET

Carpio, Leonardo-de Castro, Brion and Del Castillo, JJ., concur.

||| (People v. Quebral y Mateo, G.R. No. 185379, [November 27, 2009], 621 PHIL 226236)
35- Rosete v. Lim, G.R. No. 136051, 8 June 2006

FIRST DIVISION
[G.R. No. 136051. June 8, 2006.]
ALFREDO P. ROSETE, OSCAR P. MAPALO and CHITO P.
ROSETE,petitioners, vs. JULIANO LIM and LILIA LIM, respondents.
DECISION
CHICO-NAZARIO, J p:
Before Us is a petition for review on certiorari which seeks to set aside the Decision 1 of
the Court of Appeals in CA-G.R. SP No. 45400 dated 24 August 1998 which upheld the
Orders of Branch 77 of the Regional Trial Court (RTC) of Quezon City in Civil Case No. Q95-25803 dated 22 July 1997 2 and 27 August 1997, 3 allowing the taking of deposition
upon oral examination of petitioners Oscar P. Mapalo and Chito P. Rosete, and its
Resolution 4 dated 19 October 1998 denying petitioners' Motion for Reconsideration.
Relevant to the petition are the following antecedents:
On 5 December 1995, respondents Juliano Lim and Lilia Lim filed before Branch 77 of the
RTC of Quezon City a Complaint for Annulment, Specific Performance with Damages
against AFP Retirement and Separation Benefits System (AFP-RSBS), Espreme Realty and
Development Corporation (Espreme Realty), Alfredo P. Rosete, Maj. Oscar Mapalo,
Chito P. Rosete, Bank of the Philippine Islands (BPI), and Register of Deeds of the
Province of Mindoro Occidental, docketed as Civil Case No. Q-95-25803. 5 It asked,
among other things, that the Deed of Sale executed by AFP-RSBS covering certain
parcels of lands in favor of Espreme Realty and the titles thereof under the name of the
latter be annulled; and that the AFP-RSBS and Espreme Realty be ordered to execute
the necessary documents to restore ownership and title of said lands to respondents,
and that the Register of Deeds be ordered to cancel the titles of said land under the
name of Espreme Realty and to transfer the same in the names of respondents.
On 18 January 1996, petitioners filed a Motion to Dismiss on the grounds that the court
has no jurisdiction over the subject matter of the action or suit and that venue has been
improperly laid. 6 A Supplemental Motion to Dismiss was filed by petitioner Alfredo P.
Rosete on 23 January 1996. 7 Respondents opposed the Motion to Dismiss filed by
petitioners 8 to which petitioners filed their Reply. 9Respondents filed a Comment on the

In an Order dated 12 March 1996, the Motions to Dismiss filed by all the defendants
were denied. 14 The Motions for Reconsideration filed by petitioners15 and BPI, 16 which
respondents opposed, 17 were also denied in an Order dated 24 May 1996. 18
On 6 June 1996, BPI filed its Answer with Compulsory Counterclaim and Cross-claim 19 to
which respondents filed their Reply and Answer to Counterclaim. 20Respondents also
filed a Motion 21 to Serve Supplemental Allegation against BPI and petitioner Chito
Rosete which the trial court granted in an order dated 28 July 1996. 22
On 7 June 1996, petitioners manifested that on 5 June 1996, they filed a
Petition23 for Certiorari and Prohibition in the Court of Appeals, docketed as CAG.R. SPNo. 40837, challenging the trial court's Orders dated 12 March 1996 and 24 May
1996 that denied their Motions to Dismiss and Reconsideration, respectively. 24They
likewise informed the trial court that on 6 June 1996, they filed an Ex-ParteMotion 25 to
Admit Answers Ex Abudanti Cautela. 26
On 7 August 1996, petitioner Chito Rosete filed a motion asking that the order granting
the Motion to Serve Supplemental Allegation against BPI and him be reconsidered and
set aside, and that respondents be ordered to reduce their supplemental allegations in
the form and manner required by the Rules of Court.27 Same was denied in an order
dated 12 August 1996. 28 This denial was appealed to the Court of Appeals on 26
August 1996, which was docketed as CA-G.R. SP No. 41821. 29
Petitioner Chito Rosete filed his Supplemental Answer (Ex Abudanti Cautela) on 9
September 1996. 30
On 28 May 1997, respondents filed a Notice to Take Deposition Upon Oral Examination
giving notice that on June 18 and 20, 1997 at 9:00 a.m., they will cause the deposition of
petitioners Oscar Mapalo and Chito Rosete. 31
On 13 June 1997, petitioners filed an Urgent Ex-Parte Motion and Objection to Take
Deposition Upon Oral Examination. 32 They argued that the deposition may not be
taken without leave of court as no answer has yet been served and the issues have not
yet been joined since their Answer was filed ex abudanti cautela, pending resolution of
the Petition for Certiorari challenging the orders dated 12 March 1996 and 24 May 1996
that denied their Motions to Dismiss and for Reconsideration, respectively. This is in
addition to the fact that they challengedvia a Petition for Certiorari before the Court of
Appeals the lower court's Orders dated 23 July 1996 and 12 August 1996 which,
respectively, granted respondents' Motion to Serve Supplemental Allegation Against
Defendants BPI and Chito Rosete, and for the latter to plead thereto, and denied Chito
Rosete's Motion for Reconsideration of the order dated 23 July 1996. Moreover, they
contend that since there are two criminal cases pending before the City Prosecutors of
Mandaluyong City and Pasig City involving the same set of facts as in the present case
wherein respondent Juliano Lim is the private complainant and petitioners are the

177

respondents, to permit the taking of the deposition would be violative of their right
against self-incrimination because by means of the oral deposition, respondents would
seek to establish the allegations of fact in the complaint which are also the allegations
of fact in the complaint-affidavits in the said criminal cases.

On 24 August 1998, the Court of Appeals dismissed the Petition for Certiorariand
Prohibition, and upheld the Orders of the lower court dated 22 July 1997 and 27 August
1997 (CA-G.R. SP No. 45400). 52 The Motion for Reconsideration 53which was
opposed 54 by respondents was denied on 19 October 1998. 55

Respondents filed their Comment on the Objection to Deposition Taking 33 to which

petitioners filed their Reply. 34

Petitioners assail the ruling of the Court of Appeals via a Petition for Review onCertiorari.
They anchor their petition on the following grounds:

In an Order dated 22 July 1997, the lower court denied petitioners' motion and
objection to take deposition upon oral examination, and scheduled the taking
thereof. 35 On 7 August 1997, petitioners filed a Motion for Reconsideration. 36They filed
a Supplemental Motion for Reconsideration on 11 August 1997. 37
On 13 August 1997, petitioners filed an Urgent Ex-parte Motion to Cancel or Suspend the
Taking of the Deposition Upon Oral Examination. 38
In an Order dated 27 August 1997, the lower court denied petitioners' Motion for
Reconsideration and Supplemental Motion for Reconsideration, and scheduled the
taking of the Deposition Upon Oral Examination. 39
On 22 September 1997, respondents filed an Omnibus Motion: (1) To Strike Out Answer
of Defendants Mapalo and Chito Rosete; (2) to Declare Defendants Mapalo and Chito
Rosete In Default; and (3) For Reception of Plaintiffs' EvidenceEx-parte, 40 which
petitioners opposed. 41
On 29 September 1997, petitioners filed with the Court of Appeals a Petition
forCertiorari and Prohibition (CA-G.R. SP No. 45400) assailing the Orders of the lower
court dated 22 July 1997 and 27 August 1997. 42
In an Order dated 29 October 1997, the lower court: (1) ordered the striking out from the
record of the Answer ex abudanti cautela filed by petitioners Mapalo and Chito Rosete
for their continued unjustified refusal to be sworn pursuant to Rule 29 of the 1997 Rules of
Civil Procedure; (2) declared defendants Mapalo and Chito Rosete in default; and I
allowed plaintiffs to present their evidence ex-parteas regards the latter. 43 On 25
November 1997, petitioners filed an Urgent Ex-parte Omnibus Motion (1) For
Reconsideration; (2) To Lift Order of Default; and (3) To Hold In Abeyance Presentation
of Plaintiffs' Evidence Ex-parte. 44 The day after, petitioners filed an Amended Omnibus
Motion. 45
On 28 November 1997, respondents filed a Motion to Set Case for Ex-partePresentation
of Evidence 46 which the lower court set for 11 December 1997. 47
In an Order dated 11 December 1997, the lower court denied petitioners' urgentexparte omnibus motion. 48 On even date, the ex-parte presentation of evidence against
petitioners Mapalo and Chito Rosete was terminated. 49
On 10 February 1998, petitioners filed a Petition 50 for Certiorari and Prohibition before
the Court of Appeals (CA-G.R. SP No. 46774) questioning the lower court's Orders dated
29 October 1997 and 11 December 1997. 51

I.
THE TRIAL COURT ERRED AND ACTED IN GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF
JURISDICTION IN DECLARING IN ITS ORDER DATED AUGUST 27, 1997
THAT THE CONSTITUTIONAL RIGHT AGAINST SELF INCRIMINATION OF
OSCAR MAPALO AND CHITO ROSETE WOULD NOT BE VIOLATED BY
THE TAKING OF THEIR DEPOSITION IN THE CIVIL CASE FILED IN THE
LOWER COURT ALTHOUGH THEY ARE ALSO RESPONDENTS OR
DEFENDANTS IN THE AFOREMENTIONED CRIMINAL CASES FILED BY
HEREIN PRIVATE RESPONDENT JULIANO LIM INVOLVING THE SAME
OR IDENTICAL SET OF FACTS; AND EAcCHI
II.
THE TRIAL COURT ERRED AND ACTED IN GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF
JURISDICTION IN DECLARING IN ITS ORDER DATED JULY 22, 1997
THAT (A) THE NOTICE TO TAKE DEPOSITION UPON ORAL
EXAMINATION NEED NOT BE WITH LEAVE OF COURT BECAUSE AN
ANSWER EX ABUDANTE CAUTELA HAS BEEN FILED; AND (B) JOINDER
OF ISSUES IS NOT REQUIRED IN ORDER THAT THE SECTION 1, RULE
23 56 OF THE RULES OF CIVIL PROCEDURE MAY BE AVAILED OF.

Petitioners argue that the Court of Appeals gravely erred when it found that the trial
court did not abuse its discretion when it refused to recognize petitioners Oscar Mapalo
and Chito Rosete's constitutional right against self-incrimination when, through its Orders
dated 22 July 1997 and 27 August 1997, it allowed and scheduled the taking of their
depositions by way of oral examination. They explain they refuse to give their
depositions due to the pendency of two criminal cases against them, namely, Batasan
Pambansa Blg. 22 and Estafa, because their answers would expose them to criminal
action or liability since they would be furnishing evidence against themselves in said
criminal cases. They allege there can be no doubt that the questions to be asked during
the taking of the deposition would revolve around the allegations in the complaint in
the civil case which are identical to the allegations in the complaint-affidavits in the two
criminal cases, thus, there is a tendency to incriminate both Oscar Mapalo and Chito
Rosete. Moreover, they explain that while an ordinary witness may be compelled to
take the witness stand and claim the privilege against self-incrimination as each
question requiring an incriminating answer is shot at him, an accused may altogether

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refuse to answer any and all questions because the right against self-incrimination
includes the right to refuse to testify.
In short, petitioners Mapalo and Chito Rosete refuse to have their depositions taken in
the civil case because they allegedly would be incriminating themselves in the criminal
cases because the testimony that would be elicited from them may be used in the
criminal cases. As defendants in the civil case, it is their claim that to allow their
depositions to be taken would violate their constitutional right against self-incrimination
because said right includes the right to refuse to take the witness stand.
In order to resolve this issue, we must determine the extent of a person's right against
self-incrimination. A person's right against self-incrimination is enshrined in Section 17,
Article III of the 1987 Constitution which reads: "No person shall be compelled to be a
witness against himself."
The right against self-incrimination is accorded to every person who gives evidence,
whether voluntary or under compulsion of subpoena, in any civil, criminal or
administrative proceeding. The right is not to be compelled to be a witness against
himself. It secures to a witness, whether he be a party or not, the right to refuse to
answer any particular incriminatory question, i.e., one the answer to which has a
tendency to incriminate him for some crime. However, the right can be claimed only
when the specific question, incriminatory in character, is actually put to the witness. It
cannot be claimed at any other time. It does not give a witness the right to disregard a
subpoena, decline to appear before the court at the time appointed, or to refuse to
testify altogether. The witness receiving a subpoena must obey it, appear as required,
take the stand, be sworn and answer questions. It is only when a particular question is
addressed to which may incriminate himself for some offense that he may refuse to
answer on the strength of the constitutional guaranty. 57
As to an accused in a criminal case, it is settled that he can refuse outright to take the
stand as a witness. In People v. Ayson, 58 this Court clarified the rights of an accused in
the matter of giving testimony or refusing to do so. We said:
An accused "occupies a different tier of protection from an
ordinary witness." Under the Rules of Court, in all criminal
prosecutions the defendant is entitled among others
1) to be exempt from being a witness against himself, and AIDTSE
2) to testify as witness in his own behalf; but if he offers himself as a
witness he may be cross-examined as any other witness; however,
his neglect or refusal to be a witness shall not in any manner
prejudice or be used against him.
The right of the defendant in a criminal case "to be exempt from
being a witness against himself" signifies that he cannot be
compelled to testify or produce evidence in the criminal case in
which he is the accused, or one of the accused. He cannot be
compelled to do so even by subpoenaor other process or order of

the Court. He cannot be required to be a witness either for the

prosecution, or for a co-accused, or even for himself. In other
words unlike an ordinary witness (or a party in a civil action) who
may be compelled to testify by subpoena, having only the right to
refuse to answer a particular incriminatory question at the time it is
put to him the defendant in a criminal action can refuse to
testify altogether. He can refuse to take the witness stand, be
sworn, answer any question. . . . (Underscoring supplied.)
It is clear, therefore, that only an accused in a criminal case can refuse to take the
witness stand. The right to refuse to take the stand does not generally apply to parties in
administrative cases or proceedings. The parties thereto can only refuse to answer if
incriminating questions are propounded. This Court applied the exception a party
who is not an accused in a criminal case is allowed not to take the witness stand in
administrative cases/proceedings that partook of the nature of a criminal proceeding
or analogous to a criminal proceeding. 59 It is likewise the opinion of the Court that said
exception applies to parties in civil actions which are criminal in nature. As long as the
suit is criminal in nature, the party thereto can altogether decline to take the witness
stand. It is not the character of the suit involved but the nature of the proceedings that
controls. 60
In the Ayson case, it is evident that the Court treats a party in a civil case as an ordinary
witness, who can invoke the right against self-incrimination only when the incriminating
question is propounded. Thus, for a party in a civil case to possess the right to refuse to
take the witness stand, the civil case must also partake of the nature of a criminal
proceeding.
In the present controversy, the case is civil it being a suit for Annulment, Specific
Performance with Damages. In order for petitioners to exercise the right to refuse to take
the witness stand and to give their depositions, the case must partake of the nature of a
criminal proceeding. The case on hand certainly cannot be categorized as such. The
fact that there are two criminal cases pending which are allegedly based on the same
set of facts as that of the civil case will not give them the right to refuse to take the
witness stand and to give their depositions. They are not facing criminal charges in the
civil case. Like an ordinary witness, they can invoke the right against self-incrimination
only when the incriminating question is actually asked of them. Only if and when
incriminating questions are thrown their way can they refuse to answer on the ground of
their right against self-incrimination.
On the second assigned error, petitioners contend that the taking of their oral
depositions should not be allowed without leave of court as no answer has yet been
served and the issues have not yet been joined because their answers were filed ex
abudanti cautela pending final resolution of the petition for certiorarichallenging the
trial court's Orders dated 12 March 1996 and 24 May 1996 that denied their motions to
dismiss and for reconsideration, respectively.
Section 1 of Rule 24 61 of the Revised Rules of Court reads:

179

Section 1. Depositions pending action, when may be taken. By

leave of court after jurisdiction has been obtained over any
defendant or over property which is the subject of the action, or
without such leave after an answer has been served, the testimony
of any person, whether a party or not, may be taken, at the
instance of any party, by deposition upon oral examination or
written interrogatories. The attendance of witnesses may be
compelled by the use of a subpoena as provided in Rule 23.
Depositions shall be taken only in accordance with these rules. The
deposition of a person confined in prison may be taken only by
leave of court on such terms as the court prescribes.
From the quoted section, it is evident that once an answer has been served, the
testimony of a person, whether a party or not, may be taken by deposition upon oral
examination or written interrogatories. In the case before us, petitioners contend they
have not yet served an answer to respondents because the answers that they have
filed with the trial court were made ex abudanti cautela. In other words, they do not
consider the answers they filed in court and served on respondents as answers
contemplated by the Rules of Court on the ground that same were filed ex abudanti
cautela.
We find petitioners' contention to be untenable. Ex abudanti cautela means "out of
abundant caution" or "to be on the safe side." 62 An answer ex abudanti cautela does
not make their answer less of an answer. A cursory look at the answers filed by
petitioners shows that they contain their respective defenses. An answer is a pleading in
which a defending party sets forth his defenses 63 and the failure to file one within the
time allowed herefore may cause a defending party to be declared in default. 64 Thus,
petitioners, knowing fully well the effect of the non-filing of an answer, filed their answers
despite the pendency of their appeal with the Court of Appeals on the denial of their
motion to dismiss.
Petitioners' argument that the issues of the case have not yet been joined must
necessarily fail in light of our ruling that petitioners have filed their answers although the
same were made ex abudanti cautela. Issues are joined when all the parties have
pleaded their respective theories and the terms of the dispute are plain before the
court. 65 In the present case, the issues have, indeed, been joined when petitioners, as
well as the other defendants, filed their answers. The respective claims and defenses of
the parties have been defined and the issues to be decided by the trial court have
been laid down. cHECAS
We cannot also sustain petitioners' contention that the lower court erred when it said
that the joinder of issues is not required in order that Section 1, Rule 23 of the 1997 Rules
of Civil Procedure may be availed of. Under said section, a deposition pending action
may be availed of: (1) with leave of court when an answer has not yet been filed but
after jurisdiction has been obtained over any defendant or property subject of the
action, or (2) without leave of court after an answer to the complaint has been served.
In the instant case, the taking of the deposition may be availed of even without leave
of court because petitioners have already served their answers to the complaint.

WHEREFORE, all the foregoing considered, the instant petition is dismissed for lack of
merit.
SO ORDERED.
Panganiban, C.J., Austria-Martinez and Callejo, Sr. JJ., concur.
Ynares-Santiago, J., is on leave.
||| (Rosete v. Lim, G.R. No. 136051, [June 8, 2006], 523 PHIL 498-515)

36- People v. Bokingo, G.R. No. 187536, 10 August 2011

SECOND DIVISION
[G.R. No. 187536. August 10, 2011.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MICHAEL
BOKINGO alias "MICHAEL BOKINGCO" and REYNANTE
COL,accused-appellants.
DECISION
PEREZ, J p:
For review is the Amended Decision 1 dated 14 November 2008 of the
Court of Appeals in CA-G.R. CR-H.C. No. 00658, finding appellants Michael
Bokingco 2 (Bokingco) and Reynante Col (Col) guilty as conspirators beyond
reasonable doubt of the crime of Murder and sentencing them to suffer the
penalty of reclusion perpetua. DIEcHa
On 31 July 2000, an Information 3 was filed against appellants charging
them of the crime of murder committed as follows:
That on or about the 29th day of February, 2000 in the City of
Angeles, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring and confederating
together and mutually helping each other, armed with a claw
hammer and with intent to kill by means of treachery, evident
premeditation, abuse of confidence, and nighttime, did then and
there willfully, unlawfully and feloniously attack, assault and maul
NOLI PASION, by hitting and beating his head and other parts of his
body with said hammer, thereby inflicting upon said NOLI PASION
fatal wounds on his head and body which caused his death. 4

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On arraignment, Bokingco entered a guilty plea while Col pleaded not

guilty. During the pre-trial, Bokingco confessed to the crime charged. 5
The victim, Noli Pasion (Pasion) and his wife, Elsa, were residing in a house
along Mac Arthur Highway in Balibago, Angeles City. Pasion owned a pawnshop,
which formed part of his house. He also maintained two (2) rows of apartment units
at the back of his house. The first row had six (6) units, one of which is
Apartment No. 5 and was being leased to Dante Vitalicio (Vitalicio), Pasion's
brother-in-law, while the other row was still under construction at the time of his
death. Appellants, who were staying in Apartment No. 3, were among the 13
construction workers employed by Pasion. 6

loitering around the emergency room. He approached Vitalicio and Elsa who both
informed him of the incident. 12 He prepared a police report on the same day
narrating the result of his investigation. 13
Evelyn Gan, the stenographic reporter of Prosecutor Lucina Dayaon,
jotted down notes during the preliminary investigation. She attests that Bokingco
admitted that he conspired with Col to kill Pasion and that they planned the killing
several days before because they got "fed up" with Pasion.14
The necropsy report prepared by Dr. Joven G. Esguerra (Dr. Esguerra), contained the
following findings: DaACIH

The prosecution's evidence show that at around 1:00 a.m. on 29 February

2000, Vitalicio was spin-drying his clothes inside his apartment when Pasion came
from the front door, passed by him and went out of the back door. 7 A few minutes
later, he heard a commotion from Apartment No. 3. He headed to said unit to
check. He peeped through a screen door and saw Bokingco hitting something on
the floor. Upon seeing Vitalicio, Bokingco allegedly pushed open the screen door
and attacked him with a hammer in his hand. A struggle ensued and Vitalicio was
hit several times. Vitalicio bit Bokingco's neck and managed to push him away.
Bokingco tried to chase Vitalicio but was eventually subdued by a co-worker.
Vitalicio proceeded to his house and was told by his wife that Pasion was found
dead in the kitchen of Apartment No. 3. Vitalicio went back to Apartment No. 3
and saw Pasion's body lying flat on the kitchen floor. Pasion and Vitalicio were
brought to the hospital. Pasion expired a few hours later while Vitalicio was treated
for his injuries. 8

1. Marked pallor of lips and nailbeds

Elsa testified that she was in the master's bedroom on the second floor of
the house when she heard banging sounds and her husband's moans. She
immediately got off the bed and went down. Before reaching the kitchen, Col
blocked her way. Elsa asked him why he was inside their house but Col suddenly
ran towards her, sprayed tear gas on her eyes and poked a sharp object under her
chin. Elsa was wounded when she bowed her head to avoid the tear gas. 9 Col
then instructed her to open the vault of the pawnshop but Elsa informed him that
she does not know the combination lock. Elsa tried offering him money but Col
dragged her towards the back door by holding her neck and pulling her
backward. Before they reached the door, Elsa saw Bokingco open the screen door
and heard him tell Col: "tara, patay na siya." 10Col immediately let her go and ran
away with Bokingco. Elsa proceeded to Apartment No. 3. Thereat, she saw her
husband lying on the floor, bathed in his own blood. 11

8. Contusion with hematoma, right fronto-parietal region.

PO3 Quirino Dayrit (PO3 Dayrit) was stationed at Police Station No. 4
inBarangay Salakot, Balibago, Angeles City. At 1:20 a.m. of 29 February 2000, he
received a phone call regarding the incident. He, together with a certain P/Insp.
Maniago, proceeded to Apartment No. 3 and conducted an investigation. He
noticed a pool of blood on the cemented floor of the kitchen. He also saw a claw
hammer with a green lead pipe handle approximately 13 inches long near the
kitchen sink. A lead pipe measuring 40 inches and a chisel were also found in the
nearby construction site. The police went to Angeles University Medical Center
afterwards. PO3 Dayrit saw Pasion lying in one of the beds while Vitalicio was still

2. Body in rigor mortis

3. Contusion with hematoma, right medial infraorbital region
extending to the right of the root of the nose.
4. Contusion with hematoma, left post-auricular region.
5. Contusion with hematoma, right angle of mandible.
6. Contusion with hematoma, right mandibular region.
7. Contusion with hematoma, left occipital region.

9. Contusion with hematoma, right supraorbital region.

10. Abrasions, linear, confluent, proximal third, right leg anterior 2
1/2 x 6 1/2 cm.
11. Contusion with hematoma, left shoulder, level of head of left
humerus.
12. Stab wound, anterior chest along the anterior median line, 7
cm above the nipple line, 0.8 cm length, 0.5 cm wide and
1 cm deep, hitting and puncturing the manubrium sterni,
not entering the thoracic cavity. Both extremities round.
13. 2 stab wounds, non-penetrating, anterior chest, 13 cm to the
left of the anterior median line, 3 cm below injury (12) 14
cm the right of the anterior median line 4 1/2 on below
injury (12). Wound 0.8 cm in length, both extremities
round.
14. Lacerated wound, semi-lunar shape, 3 cm length, left shoulder.

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15. Lacerated wound, right eyebrow area, C-shaped 2 1/2 cm

length.
16. Lacerated wound, lateral angle, right eye, 0.8 cm length.
17. Lacerated wound, right supraorbital region, medial aspect, 2
cm length.
18. Lacerated wound, semi-lunar, 5 cm length, occipital region 5
cm length involving all layers of the scalp with brain tissue
seen on the gaping wound.
19. Lacerated wound, 4 cm length, C-shaped 2 1/2 cm to the right
of injury (18) 1 1/2 cm below, wound involving the whole
scalp.
20. Lacerated wound, left post-auricular region, C-shaped 4 cm
length, 3 cm length.
21. Lacerated wound left post-auricular region, region of the
squamous part of the left temporal bone, C-shaped (2)
3.5 cm and 4 cm lengths.
22. Lacerated wound, right mandibular region 4 cm length, 1 cm
wide.
23. Lacerated wound, stellate, 5.5 x 5 x 5 cm, right fronto-parietal
region with brain tissue out of the gaping wound.
24. Lacerated wound, right submandibular region 0.3 x 3.5 cm.
25. Lacerated wound, right cheek 0.8 cm length.
26. Depressed, complete fracture, occipital bone right with stellate
linear extensions, with gaping, with brain tissue
maseration.
27. Skull fracture, right fronto-parietal region, depressed, complete,
C-shaped with linear extensions, with gaping of bone with
brain tissue maceration and expulsion.
28. Hemorrhage, massive, subdural and epidural.
29. Brain tissue damage. 15
Dr. Esguerra concluded that the injuries sustained by Pasion on his skull proved
fatal. 16 acAIES

Appellants testified on their own behalf. Bokingco recalled that he was

sleeping in Apartment No. 3 at around 1:20 a.m. on 29 February 2000 when he was
awakened by Pasion who appeared to be intoxicated. The latter wanted to know
why he did not see Bokingco at the construction site on 28 February 2000. When
Bokingco replied that he just stayed at the apartment the whole day, Pasion
suddenly hit him in the head. This prompted Bokingco to take a hammer and hit
Pasion. They both struggled and Bokingco repeatedly hit Pasion. Bokingco
escaped to Manila right after the incident. He was subsequently arrested in
Mindanao on 11 June 2000. 17 During the cross-examination, Bokingco admitted
that he harbored ill feelings towards Pasion.18
Col confirmed that he was one of the construction workers employed by
Pasion. He however resigned on 26 February 2000 because of the deductions from
his salary. He went home to Cainta, Rizal, where he was apprehended and brought
to Camp Olivas. Upon reaching the camp, he saw Bokingco who pointed to him as
the person who killed Pasion. He insisted that he doesn't know Bokingco very
well. 19
On 16 December 2004, the trial court rendered judgment 20 finding
appellants guilty beyond reasonable doubt of murder, viz.:
WHEREFORE, the Court finds accused MICHAEL BOKINGO alias
MICHAEL BOKINGCO and REYNANTE COL guilty beyond
reasonable doubt of the crime of MURDER, defined and penalized
in Art. 248 of the Revised Penal Code, and there being the two
aggravating circumstances of nighttime and abuse of confidence
to be considered against both accused and the mitigating
circumstance of voluntary plea of guilty in favor of accused
Bokingo only, hereby sentences each of them to suffer the penalty
of DEATH. Each accused is ordered to indemnify the heirs of victim
Noli Pasion in the amount of Seventy five thousand pesos
(P75,000.00) to pay the heirs of the victim Seventeen thousand six
hundred pesos (P17,600.00) as actual damages, Fifteen thousand
pesos (P15,000.00) as attorney's fees, Twenty five thousand pesos
(P25,000.00) as exemplary damages, and to pay the costs. 21
In its Decision dated 24 July 2008, the Court of Appeals affirmed the
findings of the trial court but reduced the penalty to reclusion perpetua in view
of Republic Act No. 7659, thus:
WHEREFORE, the assailed Decision is AFFIRMED with MODIFICATION.
Accused-appellant REYNANTE COL is found GUILTY as conspirator
beyond reasonable doubt of MURDER as defined in Article 248 of
the Revised Penal Code, as amended by Republic Act No. 7659,
qualified by treachery and evident premeditation and with the
attendant aggravating circumstances of nighttime and abuse of
confidence, with no mitigating circumstances. The proper
imposable penalty would have been death. However, pursuant
to Republic Act No. 9346, appellant is sentenced to suffer the
penalty of Reclusion Perpetua. Accused-appellant is further

182

ordered to indemnify the heirs of victim Noli Pasion in the amount

of Seventy five thousand pesos (P75,000.00); Fifty thousand pesos
(P50,000.00) as moral damages; Twenty five thousand pesos
(P25,000.00) as exemplary damages; Twenty five thousand pesos
(P25,000.00) as temperate damages; Fifteen thousand pesos
(P15,000.00) as attorney's fees; and to pay the costs. 22

Appellants filed a Motion for Reconsideration 23 and called the appellate

court's attention on the omission to rule on Bokingco's fate when it rendered the
challenged decision. Appellants also noted the absence of other evidence, aside
from Bokingco's admission, to prove that conspiracy existed in the instant case.
Appellants maintained that the admission made by Bokingco cannot be used as
evidence against his alleged co-conspirator. Appellants also took exception to the
findings of the lower courts that the aggravating circumstances of treachery,
evident premeditation, nighttime and abuse of confidence attended the
commission of the crime. 24
The Court of Appeals merely modified its Decision by including the
criminal liability of Bokingco in its dispositive portion of its Amended Decision, which
reads: CDAEHS
WHEREFORE, the assailed Decision is AFFIRMED with MODIFICATION.
Accused-appellants MICHAEL BOKINGCO and REYNANTE COL are
found GUILTY as conspirators beyond reasonable doubt of MURDER
as defined in Article 248 of the Revised Penal Code, as amended
by Republic Act No. 7659, qualified by treachery and evident
premeditation and with the attendant aggravating circumstances
of nighttime and abuse of confidence, with no mitigating
circumstances. The proper imposable penalty would have been
death. However, pursuant to Republic Act No. 9346, the accusedappellant are sentenced to suffer the penalty ofReclusion
Perpetua without the possibility of parole (in accordance with
Section 3 of the said law). Each of the accused-appellants is further
ordered to indemnify the heirs of victim Noli Pasion in the amount
of Seventy five thousand pesos (P75,000.00); Fifty thousand pesos
(P50,000.00) as moral damages; Twenty five thousand pesos
(P25,000.00) as exemplary damages; Twenty five thousand pesos
(P25,000.00) as temperate damages; Fifteen thousand pesos
(P15,000.00) as attorney's fees; and to pay the costs. 25
Appellants filed a notice of appeal. In its Resolution dated 26 October
2009, this Court required the parties to submit their Supplemental Briefs within 30
days from notice thereof if they so desire. 26 Appellants manifested that they
are no longer filing a Supplemental Brief and are adopting their arguments in the
Appellant's Brief submitted before the Court of Appeals. 27The appellee likewise
manifested that it is dispensing with the filing of a Supplemental Brief. 28 The instant
case was thus submitted for deliberation.

In seeking the reversal of the Court of Appeals' Amended Decision, two

issues were raised: 1) whether the qualifying circumstances were properly
appreciated to convict appellant Bokingco of murder and 2) whether appellant
Col is guilty beyond reasonable doubt as a co-conspirator.
There is no question that Bokingco attacked and killed Pasion. Bokingco
made two (2) separate and dissimilar admissions: first, in his extrajudicial confession
taken during the preliminary investigation where he admitted that he and Col
planned the killing of Pasion; and second, when he testified in open court that he
was only provoked in hitting Pasion back when the latter hit him in the head. On
the basis of his extrajudicial confession, Bokingco was charged for murder qualified
by evident premeditation and treachery.
Appellants maintain that they could not be convicted of murder. They
question the presence of treachery in the commission of the crime considering
that no one from the prosecution witnesses testified on how Pasion was attacked
by Bokingco. They also submit that evident premeditation was not proven in the
case. They belittle Bokingco's extrajudicial admission that he and Col planned the
killing. The attendance of the aggravating circumstances of nighttime and abuse
of confidence was likewise assailed by appellants. They aver that nighttime was not
purposely sought but it was merely co-incidental that the crime took place at that
time. Neither has trust and confidence been reposed on appellants by the victim to
aggravate the crime by abuse of confidence. Appellants claim that they were
living in an apartment owned by Pasion, not because the latter trusted them but
because they worked in the construction of the victim's apartment.
On the other hand, the OSG emphasizes that the prosecution has
established that Pasion was defenseless when fatally attacked by Bokingco and
there was no opportunity for him to defend himself from the unexpected assaults of
Bokingco. The OSG agrees as well with the trial court's findings that evident
premeditation, nighttime, and abuse of confidence attended the commission of
the crime.
We agree with appellants that treachery cannot be appreciated to
qualify the crime to murder in the absence of any proof of the manner in which the
aggression was commenced. For treachery to be appreciated, the prosecution
must prove that at the time of the attack, the victim was not in a position to defend
himself, and that the offender consciously adopted the particular means, method
or form of attack employed by him. 29 Nobody witnessed the commencement
and the manner of the attack. While the witness Vitalicio managed to see
Bokingco hitting something on the floor, he failed to see the victim at that time. 30
Bokingco admitted in open court that he killed Pasion. 31 But the
admitted manner of killing is inconsistent with evident premeditation. To warrant a
finding of evident premeditation, the prosecution must establish the confluence of
the following requisites: (a) the time when the offender was determined to commit
the crime; (b) an act manifestly indicating that the offender clung to his
determination; and (c) a sufficient interval of time between the determination and
the execution of the crime to allow him to reflect upon the consequences of his
act. 32 It is indispensable to show how and when the plan to kill was hatched or

183

how much time had elapsed before it was carried out. 33 In the instant
case, no proof was shown as to how and when the plan to kill was devised.
Bokingco admitted in court that he only retaliated when Pasion allegedly hit him in
the head. 34 Despite the fact that Bokingco admitted that he was treated poorly
by Pasion, the prosecution failed to establish that Bokingco planned the
attack. STCDaI
It was during the preliminary investigation that Bokingco mentioned his
and Col's plan to kill Pasion. 35 Bokingco's confession was admittedly taken without
the assistance of counsel in violation of Section 12, Article III of the1987 Constitution,
which provides:
Section 12. (1)Any person under investigation for the commission
of an offense shall have the right to be informed of his right to
remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of
counsel.
xxx xxx xxx
(3) Any confession or admission obtained in violation of this or
Section 17 hereof shall be inadmissible in evidence against him.
In People v. Sunga, 36 we held that "the right to counsel applies in certain
pretrial proceedings that can be deemed 'critical stages' in the criminal process.
The preliminary investigation can be no different from the in-custody interrogations
by the police, for a suspect who takes part in a preliminary investigation will be
subjected to no less than the State's processes, oftentimes intimidating and
relentless, of pursuing those who might be liable for criminal prosecution." 37 In said
case, Sunga made an uncounselled admission before the police. He later
acknowledged the same admission before the judge in a preliminary investigation.
Sunga was thrust into the preliminary investigation and while he did have a counsel,
for the latter's lack of vigilance and commitment to Sunga's rights, he was virtually
denied his right to counsel. Thus, the uncounselled admission was held
inadmissible. 38In the instant case, the extrajudicial confession is inadmissible
against Bokingco because he was not assisted at all by counsel during the time his
confession was taken before a judge.
The finding that nighttime attended the commission of the crime is
anchored on the presumption that there was evident premeditation. Having ruled
however that evident premeditation has not been proved, the aggravating
circumstance of
nighttime
cannot be properly appreciated.
There
was no evidence to show that Bokingco purposely sought nighttime to facilitate the
commission of the offense.

Pasion, it may be conceded that he enjoyed the trust and confidence of Pasion.
However, there was no showing that he took advantage of said trust to facilitate
the commission of the crime.
A downgrade of conviction from murder to homicide is proper for
Bokingco for failure of the prosecution to prove the presence of the qualifying
circumstances.
Under Article 249 of the Revised Penal Code, the applicable penalty for
homicide is reclusion temporal. There being no mitigating or aggravating
circumstance alleged and proven in the instant case, the penalty should be
applied in its medium period pursuant to Article 64 (1) of the Revised Penal Code,
which ranges from a minimum of 14 years, 8 months and 1 day to a maximum of 17
years and 4 months. Applying the Indeterminate Sentence Law, the imposable
penalty shall be within the range of prision mayor in any of its periods as minimum
to reclusion temporal in its medium period as the maximum. The range of prision
mayor is from 6 years and 1 day to 12 years, while reclusion temporal in its medium
period, ranges from 14 years, 8 months and 1 day to 17 years and 4 months.
Therefore, the indeterminate penalty of six years and one day of prision mayor as
minimum to 14 years, eight months and one day of reclusion temporal, as
maximum is appropriate under the circumstances. 39 The award of exemplary
damages should be deleted as no aggravating circumstance was proven.
Col, on the other hand, was charged as a co-conspirator. He contends
that to hold him guilty as co-conspirator, it must be established that he performed
an overt act in furtherance of the conspiracy. Applying Section 30, Rule 130 of the
Rules of Court, Col asserts that Bokingco's uncounselled testimony that appellants
planned to kill Pasion bears no relevance considering the fact that there
was no other evidence which will prove the conspiracy. Col also claims that Elsa's
statements during trial, such as the presence of Col inside her house and his forcing
her to open the vault of the pawnshop, as well as the alleged statement she heard
from Bokingco "Tara, patay na siya," are not adequate to support the finding of
conspiracy. DcHaET
The Office of the Solicitor General (OSG) justifies Col's conviction of
murder by conspiracy by mentioning that starting from the declaration of
Bokingco, the victim's wife, Elsa, also positively declared that Col blocked and
attacked her with a knife when she tried to check on her husband. She was left
alone by Col when he was told by Bokingco that the victim was already dead. For
the OSG, appellants' acts are indicative of conspiracy. The OSG contends that the
prosecution witnesses had no ill-motive to lie and falsely accuse appellants of the
crime of murder.
The lower courts concluded that there was conspiracy between
appellants.
We disagree.

Abuse of confidence could not also be appreciated as an aggravating

circumstance in this case. Taking into account that fact that Bokingco works for

184

This Court is well aware of the policy to accord proper deference to the
factual findings of the trial court, owing to their unique opportunity to observe the
witnesses firsthand and note their demeanor, conduct, and attitude under grueling
examination. 40 However, this rule admits of exceptions, namely: 1) when the trial
court's findings of facts and conclusions are not supported by the evidence on
record, or 2) when certain facts of substance and value likely to change the
outcome of the case have been overlooked by the lower court, or 3) when the
assailed decision is based on a misapprehension of facts. 41The second exception
obtains in this case.
Indeed, in order to convict Col as a principal by direct participation in the
case before us, it is necessary that conspiracy between him and Bokingco be
proved. Conspiracy exists when two or more persons come to an agreement to
commit an unlawful act. It may be inferred from the conduct of the accused
before, during, and after the commission of the crime. Conspiracy may be
deduced from the mode and manner in which the offense was perpetrated or
inferred from the acts of the accused evincing a joint or common purpose and
design, concerted action, and community of interest. 42Unity of purpose and unity
in the execution of the unlawful objective are essential to establish the existence of
conspiracy. 43
As a rule, conspiracy must be established with the same quantum of proof
as the crime itself and must be shown as clearly as the commission of the crime. 44
The finding of conspiracy was premised on Elsa's testimony that appellants
fled together after killing her husband and the extrajudicial confession of Bokingco.

Nobody witnessed the commencement of the attack. Col was not seen
at the apartment where Pasion was being attacked by Bokingco. In fact, he was at
Elsa's house and allegedly ordering her to open the pawnshop vault, thus:
Q: Do you remember any unusual incident that happened on that
time and date when you were in your master's bedroom?
A: I heard a bumping sound (kalabog) at the back portion of our
building where we reside.
xxx xxx xxx

Q: Why, on what floor is this master's bedroom located?

A: Second floor.
Q: Were you actually able to go down and see what was
happening?
A: Yes, sir, but I was only able to reach the stairs leading to the
kitchen. I was not able to go out of the kitchen because I
was blocked. DHcEAa
Q: You were blocked by whom?
A: By Reynante Col.
Q: Are you referring to the same Reynante Col, the accused in this
case?
A: Yes, sir.
xxx xxx xxx
Q: You said you were blocked by Reynante Col. How did he block
you?
A: As soon as I reached the stairs, I was blocked by Reynante Col
and he was situated near the back door of the
pawnshop. There is a pawnshop in the front portion of our
residence.
Q: When you saw him near the door of your pawnshop, did you
confront him?
A: Yes, sir.
Q: How did you confront him?
A: I asked him, Reynante, what are you doing here?
Q: What was the reaction of Reynante Col?

Q: What did you do when you heard those sounds in the wee hours
of the morning on that day when you were in your
master's bedroom?

A: He ran towards me and sprayed something into my eyes and he

put a sharp object under my chin. (Witness demonstrating
by putting her hand under her chin)

A: I wondered why and I immediately went down to the kitchen

since the door of the kitchen was directly leading to the
back door or back portion of the building where the
apartments were situated.

Q: How far was he before he attacked you?

A: Probably, from the witness stand up to the chair of Fiscal Hilario.
Maybe two steps away from him. (Around 3 meters)

185

Q: Were you able to identify what this spray is and what part of
your body was hit?
A: My eyes were sprayed with tear gas.
Q: What did you feel when your eyes was (sic) sprayed with tear
gas?
A: It was "mahapdi" (painful).
Q: When you felt pain in your eyes, how were you able to see
something or a sharp weapon under your chin?
A: Before he sprayed the tear gas to my eyes, I was able to see him
poke the sharp object under my chin and I bowed my
head a little to avoid the tear gas. I was wounded under
my chin and I felt the sharpness of the object. 45
xxx xxx xxx
Q: What else happened while he was doing that to you?
A: He sprayed tear gas in my eyes and told me to be silent.
Q: What else, if any, did he tell you?
A: To open the combination of the vault.
Q: Did you comply to his order that you open the combination of
the vault?
A: No, sir. I do not know the combination.
Q: What vault are you referring to?
A: Vault of the pawnshop.
Q: Where is that pawnshop located with reference to your
residence?
A: At the first floor is the pawnshop and at the back is our kitchen.
Q: When you refused to open the vault of the pawnshop, what did
Reynante Col do about it? DAaHET
A: He did not say anything.
Q: How about you, was there anything else you did?

A: I offered him money so he will not kill me.

Q: When you offered him money so he will not kill you, did he
agree?
A: No, sir.
Q: What else happened next when he did not agree to your offer
of money?
A: He dragged me going towards the back door. 46
Based on these acts alone, it cannot be logically inferred that Col
conspired with Bokingco in killing Pasion. At the most, Col's actuations can be
equated to attempted robbery, which was actually the initial information filed
against appellants before it was amended, on motion of the prosecution, for
murder. 47
Elsa testified that she heard Bokingco call out to Col that Pasion had been
killed and that they had to leave the place. This does not prove that they acted in
concert towards the consummation of the crime. It only proves, at best, that there
were two crimes committed simultaneously and they were united in their efforts to
escape from the crimes they separately committed.
Their acts did not reveal a unity of purpose that is to kill Pasion. Bokingco
had already killed Pasion even before he sought Col. Their moves were not
coordinated because while Bokingco was killing Pasion because of his pent-up
anger, Col was attempting to rob the pawnshop.
In as much as Bokingco's extrajudicial confession is inadmissible against
him, it is likewise inadmissible against Col, specifically where he implicated the latter
as a cohort. Under Section 28, Rule 130 of the Rules of Court, the rights of a party
cannot be prejudiced by an act, declaration or omission of another.Res inter alios
acta alteri nocere non debet. Consequently, an extrajudicial confession is binding
only on the confessant, is not admissible against his or her co-accused, and is
considered as hearsay against them. 48 An exception to the res inter alios acta rule
is an admission made by a conspirator. Section 30, Rule 130 of the Rules of Court
provides that the act or declaration of the conspirator relating to the conspiracy
and during its existence may be given in evidence against the co-conspirator
provided that the conspiracy is shown by evidence other than by such act or
declaration. 49 In order that the admission of a conspirator may be received
against his or her co-conspirators, it is necessary that first, the conspiracy be first
proved by evidence other than the admission itself; second, the admission relates
to the common object; and third, it has been made while the declarant was
engaged in carrying out the conspiracy. 50 As we have previously discussed, we
did not find any sufficient evidence to establish the existence of conspiracy.
Therefore, the extrajudicial confession has no probative value and is inadmissible in
evidence against Col.

186

Bokingco's judicial admission exculpated Col because Bokingco admitted

that he only attacked Pasion after the latter hit him in the head.
All told, an acquittal for Col is in order because no sufficient evidence was
adduced to implicate him.
WHEREFORE, the appeal is GRANTED. The Decision of the Court of Appeals
in CA-G.R. CR-H.C. No. 00658 is REVERSED and SET ASIDE. Appellant Reynante Col
is ACQUITTED on ground of reasonable doubt. The Bureau of Corrections is ordered
to cause the immediate release of accused-appellant, unless he is being lawfully
held for another cause, and to inform this Court of action taken within ten (10) days
from notice.
Appellant Michael Bokingco is found GUILTY beyond reasonable doubt of
the crime of Homicide. He is hereby sentenced to suffer the penalty of six years (6)
and one (1) day of prision mayor as minimum to 14 years, eight (8) months and one
(1) day of reclusion temporal, as maximum Appellant is further ordered to indemnify
the heirs of Noli Pasion in the amount of Seventy five thousand pesos (P75,000.00);
Fifty thousand pesos (P50,000.00) as moral damages; Twenty five thousand pesos
(P25,000.00) as temperate damages; Fifteen thousand pesos (P15,000.00) as
attorney's fees; and to pay the costs.
SO ORDERED. ITcCSA
Carpio, Brion, Bersamin * and Sereno, JJ., concur.
||| (People v. Bokingo, G.R. No. 187536, [August 10, 2011], 671 PHIL 71-94)

37- People v. Olvis, G.R. No. 71092, 30 September 1987

SECOND DIVISION.
[G.R. No. L-71092. September 30, 1987.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANACLETO Q.
OLVIS, Acquitted, ROMULO VILLAROJO, LEONARDO CADEMAS and
DOMINADOR SORELA, accused-appellants.
DECISION
SARMIENTO, J p:
This is an appeal from the decision of the Regional Trial Court to Zamboanga Del Norte
sitting in Dipolog City. 1 The case was certified to this Court on January 19, 1985
following the death sentences imposed on each of the three accused-appellants,

Romulo Villarojo, Leonardo Cademas, and Dominador Sorela (the accused first-named,
Anacleto Olvis, was acquitted), over which, under theConstitution then in force, 2 we
exercised exclusive appellate jurisdiction. 3 With the promulgation of the 1987 Charter,
abolishing the death penalty and commuting death penalties already imposed
to reclusion perpetua, 4 we, on May 14, 1987, issued a death penalty abolition
resolution requiring the three accused-appellants to file a statement, personally signed
by them with the assistance of counsel, stating whether or not they wished to continue
with the case as an appealed case. 5 We have since observed this procedure with
respect to all pending capital cases. LLjur
In compliance with our resolution, the three accused-appellants, on May 28, 1987, filed
a statement informing us that they desire to continue with this case as an appealed
case. 6
This appeal stemmed from an information dated November 11, 1976 charging all four
accused with the murder of Deosdedit Bagon. The same reads as follows:
xxx xxx xxx
The undersigned First Assistant Provincial Fiscal accuses ANACLETO
Q. OLVIS, as principal by inducement, ROMULO VILLAROJO,
LEONARDO CADEMAS and DOMINADOR SORELA, as principals by
direct participation, of the crime of murder, committed as follows:
That in the evening on or about the 7th day of September 1975, in
the Municipality of Polanco, Zamboanga del Norte, within the
jurisdiction of this Honorable Court, the above named accused,
conspiring and confederating with one another and acting upon
the direction and instruction of ANACLETO Q. OLVIS who masterminded the bizarre plot and directly induced ROMULO VILLAROJO,
LEONARDO CADEMAS and DOMINADOR SORELA to execute the
conspiracy and who, armed with boloes and a hunting knife, with
intent to kill by means of treachery and evident premeditation,
and for a consideration of a price or reward, did, then and there
willfully, unlawfully and feloniously attack, assault, hack and stab
one DEOSDEDIT BAGON, thereby inflicting upon him multiple
incised (hack) and stab wounds which caused his instantaneous
death.
CONTRARY TO LAW, with the qualifying circumstances of treachery
and evident premeditation and the generic aggravating
circumstances of superior strength, nighttime and in consideration
of a price or reward. 7
xxx xxx xxx
The four accused entered identical "not guilty" pleas.

187

After trial, the court a quo rendered the decision under appeal, the dispositive portion
whereof reads as follows:
FOREGOING CONSIDERED, and on the part of accused ANACLETO
Q. OLVIS, SR., there being no evidence, direct or indirect, whether
testimonial, documentary or physical evidence, that tend to
establish his complicity in this case, said accused has to be, as he
hereby is, ACQUITTED.
On the part of the three (3) remaining accused ROMULO
VILLAROJO, LEONARDO CADEMAS, and DOMINADOR SORELA, the
degree of moral, certainty establishing their authorship of the crime
is irreversibly positive. The three (3) accused conspired and
confederated with one another to successfully achieve their
ghastly, evil ends. Their guilt has been proved beyond reasonable
doubt.
Treachery and evident premeditation are qualifying circumstances
in this case of MURDER. But said offense was attended by the
aggravating circumstances of superior strength and
nighttime. No mitigating circumstance has been shown to offset
the two (2) aggravating circumstances, as a consequence of
which, the Court hereby renders judgment sentencing the
accused ROMULO VILLAROJO, LEONARDO CADEMAS, and
DOMINADOR SORELA, to suffer the maximum penalty of DEATH.
The said accused are further sentenced to pay, jointly and
severally, to the heirs of the Murder victim, DEOSDEDIT BAGON, the
sum of P12,000.00 as death indemnity, P60,000.00 as moral
damages, P20,000.00 for exemplary damages, and costs.
SO ORDERED." 8
We come to the facts.
On September 9, 1975, Alfredo and Estrella Bagon, brother and sister, arrived at the
local Integrated National Police station of Barrio Polanco, in Zamboanga del Norte, to
report their brother, Deosdedit Bagon, missing. The station commander, Captain
Ruperto Encabo, received their report.
Bagon had been in fact missing since two days before. He was last seen by his wife in
the afternoon of September 7, 1975, on his way home to Sitio Sebaca where they
resided. She did not, however, find him there when she arrived in the evening. She then
set out to locate him in three probable places, but her efforts were in vain.
It was Captain Encabo himself who led a search party to mount an inquiry. As a matter
of police procedure, the team headed off to Sitio Sebaca to question possible
witnesses. There, Captain Encabo's men chanced upon an unnamed volunteer, who
informed them that Deosdedit Bagon was last seen together with Dominador Sorela,

one of the accused herein. Encabo then instructed one of his patrolmen to pick up
Sorela.
Sorela bore several scratches on his face, neck, and arms when the police found him.
According to him, he sustained those wounds while clearing his ricefield. Apparently
unconvinced. Captain Encabo had Sorela take them to the ricefield where he
sustained his injuries. But half way there, Sorela allegedly broke down, and, in what
would apparently crack the case for the police, admitted having participated in the
killing of the missing Bagon. By then, the police of Polanco knew that they had a murder
case in their hands.
Sorela allegedly confessed having been with Deosdedit Bagon, a friend of his, in the
evening of September 7, 1975 in Sitio Sebaca after some marketing. They were met by
Romulo Villarojo and Leonardo Cademas, Sorela's co-accused herein and likewise
friends of the deceased, who led them to a secluded place in the ricefields. It does not
appear from the records how the three were able to have the deceased join
them. LLphil
It was then that Villarojo allegedly attacked Bagon with a bolo, hacking him at several
parts of the body until he, Bagon, was dead. Moments later, Sorela fled, running into
thick cogon grasses where he suffered facial and bodily scratches.
The police soon picked up Villarojo and Cademas. Together with Sorela, they were
turned over to the custody of Captain Encabo.
The police thereafter made the three re-enact the crime. Patrolman Dionisio Capito
directed Sorela to lead them to the grounds where Deosdedit Bagon was supposed to
have been buried. But it was Villarojo who escorted them to a watery spot somewhere
in the ricefields, where the sack covered, decomposing cadaver of Bagon lay in a
shallow grave.
The actual exhumation of the body of the victim was witnessed by Polanco policemen
and Civilian Home Defense Forces volunteers, numbering about thirty. The body was
transported to the Polanco municipal hall the following day, September 10, 1975. It was
displayed, morbidly, in front of the building where Mrs. Catalina Bagon, widow of the
deceased, and her four children viewed it. The exhumation, as well as the transfer of
Bagon's cadaver, were captured by the lens of a photographer. (Exhibits "I", "J", "K", "L",
"M", and "N").
The "ceremonies" continued in the parish church of the Polanco, where the body of the
victim was transferred. It was laid on the altar, in full public view. Again the proceedings
were recorded by the camera of a photographer. (Exhibits "Q", "R", "S".)
But it was only later on that the body itself was uncovered from the sack that had
concealed it. (Exhibits "T", "U", "V".) Thereupon, it was readied for autopsy.
The necropsy report prepared by the provincial health officer disclosed that the
deceased suffered twelve stab and hack wounds, six of which were determined to be
fatal.

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In the re-enactment, the suspects, the three accused herein, demonstrated how the
victim was boloed to death. Exhibit "Y," a photograph, shows the appellant Villarojo in
the posture of raising a bolo as if to strike another, while Solera and Cademas look on.
Exhibit "X", another photograph, portrays Villarojo in the act of concealing the murder
weapon behind a banana tree, apparently after having done the victim in.
The investigation yielded several effects of the offense: a twenty-inch long bolo, the
shovel used to inter the victim's remains, a nylon rope with which the dead body was
tied, and the sack itself.
Initial findings of investigators disclosed that the threesome of Solero, Villarojo, and
Cademas executed Deosdedit Bagon on orders of Anacleto Olvis, then Polanco
municipal mayor, for a reward of P3,000.00 each.
While in custody, the three executed five separate written confessions each. The first
confessions were taken on September 9, 1975 in the local Philippine Constabulary
headquarters. The second were made before the Polanco police. On September 18,
1975, the three accused reiterated the same confessions before the National Bureau of
Investigation Dipolog City sub-office. On September 21, 1975 and September 25, 1975,
they executed two confessions more, again before the Philippine Constabulary and the
police of Polanco.
In their confessions of September 9, 1975, September 14, 1975, September 21, 1975, and
September 25, 1975, the said accused again pointed to the then accused Anacleto
Olvis as principal by inducement, who allegedly promised them a reward of P3,000.00
each.
In their confessions of September 18, 1975, sworn before agents of the National Bureau
of Investigation, however, they categorically denied Olvis' involvement in the killing. We
note that the three were transported to the Dipolog City NBI sub-office following a
request on September 10, 1975 by Mrs. Diolinda O. Adaro, daughter of Olvis, and upon
complaint by her of harassment against her father by his supposed political enemies.
Based on these subsequent statements, the court a quo rendered separate verdicts on
the three accused on the one hand, and Anacleto Olvis on the other. As earlier stated
Olvis was acquitted, while the three were all sentenced to die for the crime of
murder. prLL
In acquitting Olvis, the trial court rejected the three accused's earlier confessions
pointing to him as the mastermind, and denied the admissibility thereof insofar as far as
he was concerned. It rejected claims of witnesses that the three accused-appellants
would carry out Olvis' alleged order to kill Bagon upon an offer of a reward when in
fact no money changed hands. It likewise noted that Olvis had, two days after the
murder, been in Cebu City, and who, upon arriving in Dipolog City, was in fact informed
by the Philippine Constabulary that he was a "wanted" man, "to which said accused
(Olvis) meekly complied" 9 (that is, he assented, ambiguously, to the remark). According
to the court, this was inconsistent with a guilty mind. LibLex

The court repudiated claims that Olvis had motives to do away with the deceased
arising from alleged attempts on his (Olvis') part to eject the deceased from his
landholding (the deceased having been a tenant of his), the case in fact having
reached the then Ministry of Agrarian Reform. It dismissed insinuations that his children
had a score to settle with the victim, who had earlier brought a physical injuries suit
against the former, that case having been dismissed. It observed, furthermore, that he
was not questioned by the police after the killing, notwithstanding efforts by the three
herein accused-appellants to implicate him. It relied, finally, on the retraction of the
accused themselves, absolving Olvis of any liability. It was satisfied, overall, that he had
a "clean bill of health" 10 in connection with the murder case. cdphil
With the acquittal of Olvis, we are left with the murder cases against the three accusedappellants. The accused-appellants subsequently repudiated their alleged confessions
in open court alleging threats by the Polanco investigators of physical harm if they
refused to "cooperate" in the solution of the case. They likewise alleged that they were
instructed by the Polanco police investigators to implicate Anacleto Olvis in the case.
They insisted on their innocence. The accused Romulo Villarojo averred, specifically,
that it was the deceased who had sought to kill him, for which he acted in self-defense.
The murder of Deosdedit Bagon was witnessed by no other person. The police of
Polanco had but the three accused-appellants' statements to support its claims. The
fundamental issue then is whether or not these statements, as any extrajudicial
confession confronting us, can stand up in court.
We hold that, based on the recorded evidence, the three accused-appellants'
extrajudicial confessions are inadmissible in evidence.
It was on May 7, 1987 that we promulgated People v. Decierdo. 11 In that decision, we
laid down the rule with respect to extrajudicial confessions:
xxx xxx xxx
". . . Prior to any questioning, the person must be warned that he
has a right to remain silent, that any statement he does make may
be used as evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed. The
defendant, may waive effectuation of those rights, provided the
waiver is made voluntarily, knowingly and intelligently. If, however,
he indicates in any manner and at any stage of the process that
he wishes to consult with an attorney before speaking, there can
be no questioning. Likewise, if the individual is alone and indicates
in any manner that he does not wish to be interrogated, so police
may not question him. The mere fact that he may have answered
some questions or voluteered some statements on his own does
not deprive him of the right to refrain from answering any further
inquiries until he has consulted with an attorney and thereafter
consent to be questioned."
xxx xxx xxx

189

In People v. Duero, we added:

xxx xxx xxx
"At the outset, if a person in custody is to be subjected to
interrogation, he must first be informed in clear and unequivocal
terms that he has the right to remain silent.
"For those unaware of the privilege, the warning is needed simply
to make them aware of it the threshold requirement for an
intelligent decision as to its exercise.
"More important, such a warning is an absolute pre-requisite in
overcoming the inherent pressures of the interrogation atmosphere
..
"Further, the warning will show the individual that his interrogators
are prepared to recognize his privilege should he choose to
exercise it ..
"The warning of the right to remain silent must be accompanied by
the explanation that anything said can and will be used against
the individual in court. This warning is needed in order to make him
aware not only of the privilege, but also of the consequences of
foregoing it . . .
"An individual need not make a pre-interrogation request for a
lawyer. While such request affirmatively secures his right to have
one, his failure to ask for a lawyer does not constitute a
waiver. No effective waiver of the right to counsel during
interrogation can be recognized unless specifically made after the
warnings we here delineate have been given. The accused who
does not know his rights and therefore does not make a request
may be the person who most needs counsel . . .
"If an individual indicates that he wishes the assistance of counsel
before any interrogation occurs, the authorities cannot rationally
ignore or deny his request on the basis that the individual does not
have or cannot afford a retained attorney ..
"In order fully to apprise a person interrogated the extent of his
rights under this system then, it is necessary to warn him not only
that he has the right to consult with an attorney, but also that if he
is indigent a lawyer will be appointed to represent him . . .
"Once warnings have been given, the subsequent procedure is
clears. If the individual indicates in any manner, at any time prior to
or during questioning, that he wishes to remain silent, the
interrogation must cease . . . If the individual cannot obtain an

attorney and he indicates that he wants one before speaking to

policy, they must respect his decision to remain silent . . .
"If the interrogation continues without the presence of an attorney
and a statement is taken, a heavy burden rests on the government
to demonstrate that the defendant knowingly and intelligently
waived his privilege against self-incrimination and his right to
retained or appointed counsel . . ." 12
xxx xxx xxx
Like the Decierdo confessions, the confessions in the case at bar suffer from a
Constitutional infirmity. In their supposed statements dated September 9, 14, and 21,
1975, the accused-appellants were not assisted by counsel when they "waived" their
rights to counsel. As we said in Decierdo, the lack of counsel "makes [those]
statement[s], in contemplation of law, 'involuntary,' even if it were otherwise voluntary,
technically." 13
With respect to the confessions of September 18, 1975, while it is stated therein that
"[t]his Office had just requested the services of Atty. NARVARO VELAR NAVARRO of the
Citizens Legal Assistance Office, Department of Justice, Dipolog District Office, are you
willing to accept the legal assistance of Atty. NAVARRO to handle your case," 14 the
same nonetheless call for a similar rejection. There is nothing there that would show that
Atty. Navarro was the accused-appellants' counsel of choice (specifically, the
appellant Romulo Villarojo who admitted therein having been the bolo-wielder). On the
contrary, it is clear therefrom that Atty. Navarro was summoned by the NBI. He cannot
therefore be said to have been acting on behalf of the accused-appellants when he
lent his presence at the confession proceedings. What we said in People v.
Galit, 15 applies with like force here:
No custodial investigation shall be conducted unless it be in the
presence of counsel engaged by the person arrested, by any
person on his behalf, or appointed by the court upon petition
either of the detainee himself or by anyone on his behalf. 16
We cast aside, for the same reason, the confessions of September 25, 1975.
But the accused-appellants were denied their right to counsel not once, but twice. We
refer to the forced re-enactment of the crime the three accused were made to perform
shortly after their apprehension.
Forced re-enactments, like uncounselled and coerced confessions come within the ban
against self-incrimination. The 1973 Constitution, the Charter prevailing at the time of the
proceedings below, says:
No person shall be compelled to be a witness against himself. 17
This constitutional privilege has been defined as a protection against testimonial
compulsion, 18 but this has since been extended to any evidence "communicative in

190

nature" 19 acquired under circumstances of duress. Essentially, the right is meant to

avoid and prohibit positively the repetition and recurrence of the certainly inhuman
procedure of compelling a person, in a criminal or any other case, to furnish the missing
evidence necessary for his conviction." 20 This was the lesson learned from the ancient
days of the inquisition in which accusation was equivalent to guilt. 21 Thus, an act,
whether testimonial or passive, that would amount to disclosure of incriminatory facts is
covered by the inhibition of the Constitution.

In such a case, he should have been provided with counsel.

This should be distinguished, parenthetically, from mechanical acts the accused is

made to execute not meant to unearth undisclosed facts but to ascertain physical
attributes determinable by simple observation. This includes requiring the accused to
submit to a test to extract virus from his body, 22 or compelling him to expectorate
morphine from his mouth, 23 or making her submit to a pregnancy test 24 or a
footprinting test, 25 or requiring him to take part in a police lineup in certain cases. 26 In
each case, the accused does not speak his guilt. It is not a prerequisite therefore that he
be provided with the guiding hand of counsel. LibLex

What is more, there are striking aspects in the case that we find distressing. For one,
there was no trace of grief upon the faces of the deceased's bereaved relatives, more
so his widow and children, upon witnessing his cadaver wrapped in a sack and all
although it was supposedly the first time that they saw his remains after two days of
frantic search. 32 Exhibits "K", "L", "M", "N", and "R", for another, depict the deceased's
relatives in fixed poses, while the deceased's corpse lay in the foreground. 33

But a forced re-enactment is quite another thing. Here, the accused is not merely
required to exhibit some physical characteristics; by and large, he is made to admit
criminal responsibility against his will. It is a police procedure just as condemnable as an
uncounselled confession.
Accordingly, we hold that an evidence based on such a re-enactment to be in
violation of the Constitution and hence, incompetent evidence.
It should be furthermore observed that the three accused-appellants were in police
custody when they took part in the re-enactment in question. It is under such
circumstances that the Constitution holds a strict application. As for the accused
Dominador Sorela, we cannot accept the trial judge's finding that he acted "with
unexpected spontaneity" 27 when he allegedly "spilled the beans" 28before the law
enforcers on September 9, 1975. What is to be borne in mind is that Sorela was himself
under custody. Any statement he might have made thereafter is therefore subject to
the Constitutional guaranty.
By custodial interrogation, we mean questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise deprived of his freedom of
action in any significant way. 29
We indeed doubt whether Sorela's admissions, under the circumstances, were truly his
voluntary statements. Chavez v. Court of Appeals 30 tells us:
Compulsion as it is understood here does not necessarily connote
the use of violence; it may be the product of unintentional
statements. Pressure which operates to overbear his will, disable
him from making a free and rational choice, or impair his capacity
for rational judgment would in our opinion be sufficient. So is moral
coercion "tending to force testimony from the unwilling lips of the
defendant." 31

Indeed, the three accused-appellants had languished in jail for one year and two
months before the information was filed, and only after they had gone to court on an
application for habeas corpus. For if the authorities truly had a case in their hands, we
are puzzled why they, the accused, had to be made to suffer preventive imprisonment
for quite an enormous length of time. Cdpr

Moreover, the victim was transferred to the municipal hall building and then
subsequently, to the parish church, again, for a photographing session an unusual
procedure when the perfunctory police procedure should have been to bring the
corpse to the health officer for autopsy.
It was in fact only on September 10, 1975 that Deosdedit Bagon's remains were
unwrapped, at the parish church at that, as if pursuant to a script or as part of some
eerie ceremony.
To the mind of this Court, the disposition of the case was characterized by unusual
grandstanding, for reasons as yet unclear to us. It leaves us with an uncomfortable
impression that each scene was an act in some contrived tragedy.
We likewise find the authorities' haste in securing the accused Anacleto Olvis' acquittal,
at the expense of the present three accused, quite disconcerting. It should be noted
that the three appellants had initially implicated Olvis as the mastermind. Yet, Olvis was
never invited for the usual questioning.
To us, there is more to Exhibit "20," the request to transfer Olvis' case to the jurisdiction of
the National Bureau of Investigation for reinvestigation, than meets the eye. As it
happened, happily for Olvis, the three accused-appellants while under NBI custody,
retracted their earlier statements indicting him as a co-conspirator. Why the NBI should
intervene in the case when the Polanco police had apparently "solved" it, is, in the first
place, suspicious enough, but why the three appellants should, in an instant, make a
turn-about there leaves us even more disturbed. LLjur
While we do not challenge the verdict of acquittal rendered in favor of Olvis, for it is not
within our power to overturn acquittals, 34 what is our concern is the apparent design to
use three ill-lettered peasants, 35 the three herein accused, as fall guys in an evident
network of political intrigue.
Still, we are not prepared to hand down a judgment of acquittal upon all the three
accused-appellants.

191

In his counter-affidavit, 36 marked as Exhibit "44-A" for the defense, the accused Romulo
Villarojo admitted hacking the victim to death with a bolo. He stressed, however, that
he did so in self-defense. ("[H]e pulled out a hunting knife in order to stab me and in
order also to defend my body, I hack[ed] him.") 37 He completely absolved his coaccused Dominador Sorela and Leonardo Cademas from any liability.

This is a Petition for Review an Certiorari, filed by petitioner Jaime D. dela Cruz, from the
Decision 1 dated 22 June 2011 issued by the Twentieth Division of the Court of Appeals
(CA) and Resolution 2 dated 2 February 2012 issued by the Former Twentieth Division of
the CA in CA-G.R. C.R. No. 00670.
THE ANTECEDENT FACTS

Villarojo's admission inflicting the fatal wounds upon the deceased is binding on
him. 38 But it is still our business to see whether his defense can stand scrutiny.
The records will disclose that the deceased suffered twelve assorted wounds caused by
a sharp instrument. The assault severed his right hand and left his head almost
separated from his body. This indicates a serious intent to kill, rather than self-defense. 39
In finding that Villarojo did take the life of the victim, we cannot, however, appreciate
superior strength or nocturnity. These qualifying circumstances were considered by the
court a quo on the basis of the extrajudicial statements executed by the accused,
statements we reject for the reasons earlier discussed. In the absence of any other
proof, the severity and number of wounds sustained by the deceased are not, by
themselves, sufficient proof to warrant the appreciation of the generic aggravating
circumstance of abuse of superior strength. Hence, Villarojo should be liable for plain
homicide. LLjur
WHEREFORE, judgment is hereby rendered modifying the Decision dated November 30,
1984. The accused-appellants Leonardo Cademas and Dominador Sorela are
ACQUITTED on the ground of reasonable doubt. The accused-appellant Romulo
Villarojo is found guilty of homicide, and is sentenced to suffer an indeterminate penalty
of eight years and one day of prision mayor as minimum, to fourteen years, eight
months, and one day of reclusion temporal, as maximum. He is furthermore ordered to
indemnify the heirs of Deosdedit Bagon in the sum of P30,000.00.
No special pronouncement as to costs.
Yap (Chairman), Paras and Padilla, JJ., concur.
38- Jaime dela Cruz v. People, G.R. No. 200748, 23 July 2014

FIRST DIVISION
[G.R. No. 200748. July 23, 2014.]
JAIME D. DELA CRUZ, petitioner, vs. PEOPLE OF THE
PHILIPPINES,respondent.
DECISION
SERENO, C.J p:

Petitioner Jaime D. dela Cruz was charged with violation of Section 15, Article II
ofRepublic Act No. (R.A.) 9165, or the Comprehensive Dangerous Drugs Act of 2002, by
the Graft Investigation and Prosecution Officer of the Office of the Ombudsman
Visayas, in an Information 3 dated 14 February 2006, which reads:
That on or about the 31st day of January 2006, at Cebu City,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, JAIME D. DE LA CRUZ, a public officer,
having been duly appointed and qualified to such public position
as Police Officer 2 of thePhilippine National Police (PNP) assigned
in the Security Service Group of the Cebu City Police Office, after
having been arrested by agents of the National Bureau of
Investigation (NBI) in an entrapment operation, was found positive
for use of METHAMPHETAMINE HYDROCHLORIDEcommonly known
as "Shabu", the dangerous drug after a confirmatory test
conducted on said accused. TAIaHE
CONTRARY TO LAW.

When arraigned, petitioner, assisted by counsel de parte, pleaded not guilty to the
charge. The records do not reveal whether De la Cruz was likewise charged for
extortion.
VERSION OF THE PROSECUTION
The evidence of the prosecution reveals that at 8:00 a.m. of 31 January 2006, the agents
and special investigators of the National Bureau of Investigation, Central Visayas
Regional Office (NBI-CEVRO) or simply NBI, received a Complaint from Corazon Absin
(Corazon) and Charito Escobido (Charito). The complainants claimed that at 1:00 a.m.
of that same day, Ariel Escobido (Ariel), the live-in partner of Corazon and son of
Charito, was picked up by several unknown male persons believed to be police officers
for allegedly selling drugs. An errand boy gave a number to the complainants, and
when the latter gave the number a ring, they were instructed to proceed to the
Gorordo Police Office located along Gorordo Avenue, Cebu City. In the said police
office, they met "James" who demanded from them PhP100,000, later lowered to
PhP40,000, in exchange for the release of Ariel. After the meeting, the complainants
proceeded to the NBI-CEVRO to file a complaint and narrate the circumstances of the
meeting to the authorities. While at the NBI-CEVRO, Charito even received calls
supposedly from "James" instructing her to bring the money as soon as possible.

192

The special investigators at the NBI-CEVRO verified the text messages received by the
complainants. A team was immediately formed to implement an entrapment
operation, which took place inside a Jollibee branch at the corner of Gen. Maxilom and
Gorordo Avenues, Cebu City. The officers were able to nab Jaime dela Cruz by using a
pre-marked PhP500 bill dusted with fluorescent powder, which was made part of the
amount demanded by "James" and handed by Corazon. Petitioner was later brought to
the forensic laboratory of the NBI-CEVRO where forensic examination was done by
forensic chemist Rommel Paglinawan. Petitioner was required to submit his urine for drug
testing. It later yielded a positive result for presence of dangerous drugs as indicated in
the confirmatory test result labeled as Toxicology (Dangerous Drugs) Report No. 2006TDD-2402 dated 16 February 2006.
VERSION OF THE DEFENSE
The defense presented petitioner as the lone witness. He denied the charges and
testified that while eating at the said Jollibee branch, he was arrested allegedly for
extortion by NBI agents. When he was at the NBI Office, he was required to extract urine
for drug examination, but he refused saying he wanted it to be done by the Philippine
National Police (PNP) Crime Laboratory and not by the NBI. His request was, however,
denied. He also requested to be allowed to call his lawyer prior to the taking of his urine
sample, to no avail.
THE RULING OF THE RTC
The Regional Trial Court (RTC) Branch 58 of Cebu City, in its Decision 4 dated 6 June
2007, found the accused guilty beyond reasonable doubt of violating Section 15, Article
II of R.A. 9165 and sentenced him to suffer the penalty of compulsory rehabilitation for a
period of not less than six (6) months at the Cebu Center for the Ultimate Rehabilitation
of Drug Dependents located at Salinas, Lahug, Cebu City. 5
Petitioner filed an appeal assigning as error the RTC's validation of the result of the urine
test despite its dubiousness having been admitted in spite of the lack of legal basis for its
admission. First, he alleges that the forensic laboratory examination was conducted
despite the fact that he was not assisted by counsel, in clear violation of his
constitutional right. Secondly, he was allegedly held guilty beyond reasonable doubt
notwithstanding the lack of sufficient basis to convict him.
THE RULING OF THE CA
The CA found the appeal devoid of merit and affirmed the ruling of the RTC.
Petitioner filed a timely Motion for Reconsideration. He argued that the CA overlooked
prevailing jurisprudence, which states that drug testing conducted under circumstances
similar to his would violate a person's right to privacy. The appellate court nevertheless
denied the motion.
Petitioner thus filed the present Petition for Review on certiorari. He assigns as errors the
use of hearsay evidence as basis for his conviction and the questionable circumstances
surrounding his arrest and drug test.

Respondent, through the Office of the Solicitor General, filed its Comment, 6saying that
"petitioner's arguments cannot be the subject of a petition for review on certiorari under
Rule 45, as they involve questions of facts which may not be the subject thereo f; after
his arraignment, he can no longer contest the validity of his arrest, less so at this stage of
the proceedings; his guilt has been adequately established by direct evidence; and the
manner in which the laboratory examination was conducted was grounded on a valid
and existing law. SCDaET
THE ISSUE
We deem it proper to give due course to this Petition by confronting head-on the issue
of whether or not the drug test conducted upon the petitioner is legal.
OUR RULING
We declare that the drug test conducted upon petitioner is not grounded upon any
existing law or jurisprudence.
We gloss over petitioner's non-compliance with the Resolution 7 ordering him to submit
clearly legible duplicate originals or certified true copies of the assailed Decision and
Resolution.
Petitioner was charged with use of dangerous drugs in violation of the law, the pertinent
provision of which reads:
Section 15. Use of Dangerous Drugs. A person apprehended
or arrested, who is found to be positive for use of any dangerous
drug, after a confirmatory test, shall be imposed a penalty of a
minimum of six (6) months rehabilitation in a government center
for the first offense, subject to the provisions of Article VIII of this
Act. If apprehended using any dangerous drug for the second
time, he/she shall suffer the penalty of imprisonment ranging
from six (6) years and one (1) day to twelve (12) years and a fine
ranging from Fifty thousand pesos (PhP50,000.00) to Two hundred
thousand pesos (PhP200,000.00):Provided, That this Section shall
not be applicable where the person tested is also found to have
in his/her possession such quantity of any dangerous drug
provided for under Section 11 of this Act, in which case the
provisions stated therein shall apply. 8
The RTC subsequently convicted petitioner, ruling that the following elements of Section
15 were established: (1) the accused was arrested; (2) the accused was subjected to
drug test; and (3) the confirmatory test shows that he used a dangerous drug.
Disregarding petitioner's objection regarding the admissibility of the evidence, the lower
court also reasoned that "a suspect cannot invoke his right to counsel when he is
required to extract urine because, while he is already in custody, he is not compelled to
make a statement or testimony against himself. Extracting urine from one's body is

193

merely a mechanical act, hence, falling outside the concept of a custodial

investigation."
We find the ruling and reasoning of the trial court, as well as the subsequent affirmation
by the CA, erroneous on three counts.
The drug test in Section 15 does not
cover persons apprehended or
arrested for any unlawful act, but
only for unlawful acts listed under
Article II of R.A. 9165.
First, "[a] person apprehended or arrested" cannot literally mean any person
apprehended or arrested for any crime. The phrase must be read in context and
understood in consonance with R.A. 9165. Section 15 comprehends persons arrested or
apprehended for unlawful acts listed under Article II of the law.
Hence, a drug test can be made upon persons who are apprehended or arrested for,
among others, the "importation", 9 "sale, trading, administration, dispensation, delivery,
distribution and transportation", 10 "manufacture" 11 and "possession" 12 of dangerous
drugs and/or controlled precursors and essential chemicals; possession thereof "during
parties, social gatherings or meetings"; 13being "employees and visitors of a den, dive or
resort"; 14 "maintenance of a den, dive or resort"; 15 "illegal chemical diversion of
controlled precursors and essential chemicals"; 16 "manufacture or delivery" 17 or
"possession" 18 of equipment, instrument, apparatus, and other paraphernalia for
dangerous drugs and/or controlled precursors and essential chemicals; possession of
dangerous drugs "during parties, social gatherings or meetings"; 19 "unnecessary" 20 or
"unlawful" 21 prescription thereof; "cultivation or culture of plants classified as dangerous
drugs or are sources thereof"; 22 and "maintenance and keeping of original records of
transactions on dangerous drugs and/or controlled precursors and essential
chemicals." 23 To make the provision applicable to all persons arrested or apprehended
for any crime not listed under Article II is tantamount to unduly expanding its meaning.
Note that accused appellant here was arrested in the alleged act of extortion. cCaIET
A charge for violation of Section 15 of R.A. 9165 is seen as expressive of the intent of the
law to rehabilitate persons apprehended or arrested for the unlawful acts enumerated
above instead of charging and convicting them of other crimes with heavier penalties.
The essence of the provision is more clearly illustrated in People v. Martinez 24 as follows:
On a final note, this Court takes the opportunity to be instructive on
Sec. 11 (Possession of Dangerous Drugs) and Sec. 15 (Use of
Dangerous Drugs) of R.A. No. 9165, with regard to the charges that
are filed by law enforcers. This Court notes the practice of law
enforcers of filing charges under Sec. 11 in cases where the
presence of dangerous drugs as basis for possession is only and
solely in the form of residue, being subsumed under the last
paragraph of Sec. 11. Although not incorrect, it would be more in
keeping with the intent of the law to file charges under Sec. 15
instead in order to rehabilitate first time offenders of drug use,

provided that there is a positive confirmatory test result as required

under Sec. 15. The minimum penalty under the last paragraph of
Sec. 11 for the possession of residue is imprisonment of twelve years
and one day, while the penalty under Sec. 15 for first time
offenders of drug use is a minimum of six months rehabilitation in a
government center. To file charges under Sec. 11 on the basis of
residue alone would frustrate the objective of the law to
rehabilitate drug users and provide them with an opportunity to
recover for a second chance at life.
In the case at bench, the presence of dangerous drugs was only in
the form of residue on the drug paraphernalia, and the accused
were found positive for use of dangerous drugs. Granting that the
arrest was legal, the evidence obtained admissible, and the chain
of custody intact, the law enforcers should have filed charges
under Sec. 15, R.A. No. 9165 or for use of dangerous drugs and, if
there was no residue at all, they should have been charged under
Sec. 14 (Possession of Equipment, Instrument, Apparatus and Other
Paraphernalia for Dangerous Drugs During Parties, Social
Gatherings or Meetings). Sec. 14 provides that the maximum
penalty under Sec. 12 (Possession of Equipment, Instrument,
Apparatus and Other Paraphernalia for Dangerous Drugs) shall be
imposed on any person who shall possess any equipment,
instrument, apparatus and other paraphernalia for dangerous
drugs. Under Sec. 12, the maximum penalty is imprisonment of four
years and a fine of PhP50,000.00. In fact, under the same section,
the possession of such equipment, apparatus or other
paraphernalia is prima facie evidence that the possessor has used
a dangerous drug and shall be presumed to have violated Sec. 15.
In order to effectively fulfill the intent of the law to rehabilitate drug
users, this Court thus calls on law enforcers and prosecutors in
dangerous drugs cases to exercise proper discretion in filing
charges when the presence of dangerous drugs is only and solely
in the form of residue and the confirmatory test required under Sec.
15 is positive for use of dangerous drugs. In such cases, to afford
the accused a chance to be rehabilitated, the filing of charges for
or involving possession of dangerous drugs should only be done
when another separate quantity of dangerous drugs, other than
mere residue, is found in the possession of the accused as provided
for in Sec. 15. (Emphasis supplied)
Furthermore, making the phrase "a person apprehended or arrested" in Section 15
applicable to all persons arrested or apprehended for unlawful acts, not only under R.A.
9165 but for all other crimes, is tantamount to a mandatory drug testing of all persons
apprehended or arrested for any crime. To overextend the application of this provision
would run counter to our pronouncement in Social Justice Society v. Dangerous Drugs
Board and Philippine Drug Enforcement Agency, 25 to wit:

194

. . .[M]andatory drug testing can never be random and

suspicionless. The ideas of randomness and being suspicionless
are antithetical to their being made defendants in a criminal
complaint. They are not randomly picked; neither are they
beyond suspicion. When persons suspected of committing a
crime are charged, they are singled out and are impleaded
against their will. The persons thus charged, by the bare fact of
being haled before the prosecutor's office and peaceably
submitting themselves to drug testing, if that be the case, do not
necessarily consent to the procedure, let alone waive their right
to privacy. To impose mandatory drug testing on the accused is
a blatant attempt to harness a medical test as a tool for criminal
prosecution, contrary to the stated objectives of RA 6195. Drug
testing in this case would violate a person's right to privacy
guaranteed under Sec. 2, Art. III of the Constitution. Worse still,
the accused persons are veritably forced to incriminate
themselves. (Emphasis supplied)

The drug test is not covered by

allowable non-testimonial compulsion.
We find that petitioner never raised the alleged irregularity of his arrest before his
arraignment and raises the issue only now before this tribunal; hence, he is deemed to
have waived his right to question the validity of his arrest curing whatever defect may
have attended his arrest. 26 However, "a waiver of an illegal warrantless arrest does not
mean a waiver of the inadmissibility of evidence seized during an illegal warrantless
arrest." 27
We are aware of the prohibition against testimonial compulsion and the allowable
exceptions to such proscription. Cases where non-testimonial compulsion has been
allowed reveal, however, that the pieces of evidence obtained were all material to the
principal cause of the arrest. AIcaDC
The constitutional right of an accused against self-incrimination
proscribes the use of physical or moral compulsion to extort
communications from the accused and not the inclusion of his
body in evidence when it may be material. Purely mechanical acts
are not included in the prohibition as the accused does not
thereby speak his guilt, hence the assistance and guiding hand of
counsel is not required. (People vs. Olvis, 238 Phil. 513 [1987]) The
essence of the right against self-incrimination is testimonial
compulsion, that is, the giving of evidence against himself through
a testimonial act. (People vs. Casinillo, 213 SCRA 777 [1992]; People
vs. Tranca, 235 SCRA 455 [1994]; People vs. Rondero, 378 Phil. 123
[1999]) Hence, it has been held that a woman charged with
adultery may be compelled to submit to physical examination to
determine her pregnancy; (Villaflor vs. Summers, 41 Phil. 62 [1920])
and an accused may be compelled to submit to physical

examination and to have a substance taken from his body for

medical determination as to whether he was suffering from
gonorrhea which was contracted by his victim; (U.S. vs. Tan Teng,
23 Phil. 145 [1912]) to expel morphine from his mouth; (U.S. vs. Ong
Siu Hong, 36 Phil. 735 [1917]) to have the outline of his foot traced
to determine its identity with bloody footprints; (U.S. vs. Salas, 25
Phil. 337 [1913]; U.S. vs. Zara, 42 Phil. 308 [1921]) and to be
photographed or measured, or his garments or shoes removed or
replaced, or to move his body to enable the foregoing things to be
done. (People vs. Otadora, 86 Phil. 244 [1950]) 28 (Emphasis
supplied)
In the instant case, we fail to see how a urine sample could be material to the charge of
extortion. The RTC and the CA, therefore, both erred when they held that the extraction
of petitioner's urine for purposes of drug testing was "merely a mechanical act, hence,
falling outside the concept of a custodial investigation."
We note a case where a urine sample was considered as admissible. In Gutang v.
People, 29 the petitioner therein and his companions were arrested in connection with
the enforcement of a search warrant in his residence. A PNP-NARCOM team found and
confiscated shabu materials and paraphernalias. The petitioner and his companions in
that case were also asked to give urine samples, which yielded positive results. Later,
the petitioner therein was found guilty of the crime of illegal possession and use of
prohibited drugs. Gutang claimed that the latter's urine sample was inadmissible in
evidence, since it was derived in effect from an uncounselled extrajudicial confession.
In the Gutang, et al. case, the Court clarified that "what the Constitution prohibits is the
use of physical or moral compulsion to extort communication from the accused, but not
an inclusion of his body in evidence, when it may be material". The situation
in Gutang was categorized as falling among the exemptions under the freedom from
testimonial compulsion since what was sought to be examined came from the body of
the accused. The Court said:
This was a mechanical act the accused was made to undergo
which was not meant to unearth undisclosed facts but to ascertain
physical attributes determinable by simple observation. In fact, the
record shows that petitioner and his co-accused were not
compelled to give samples of their urine but they in fact voluntarily
gave the same when they were requested to undergo a drug test.
Assuming arguendo that the urine samples taken from the
petitioner are inadmissible in evidence, we agree with the trial
court that the record is replete with other pieces of credible
evidence including the testimonial evidence of the prosecution
which point to the culpability of the petitioner for the crimes
charged.
We emphasize that the circumstances in Gutang are clearly different from the
circumstances of petitioner in the instant case. First, Gutang was arrested in relation to a

195

drug case. Second, he volunteered to give his urine. Third, there were other pieces of
evidence that point to his culpability for the crimes charged. In the present case,
though, petitioner was arrested for extortion; he resisted having his urine sample taken;
and finally, his urine sample was the only available evidence that was used as basis for
his conviction for the use of illegal drugs.

||| (Dela Cruz v. People, G.R. No. 200748, [July 23, 2014])

The drug test was a violation of

petitioner's right to privacy and right
against self-incrimination.
It is incontrovertible that petitioner refused to have his urine extracted and tested for
drugs. He also asked for a lawyer prior to his urine test. He was adamant in exercising his
rights, but all of his efforts proved futile, because he was still compelled to submit his
urine for drug testing under those circumstances.
The pertinent provisions in Article III of the Constitution are clear:
Section 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and
particularly describing the place to be searched and the
persons or things to be seized. AEaSTC
Section 17. No person shall be compelled to be a witness against
himself.
In the face of these constitutional guarantees, we cannot condone drug testing of all
arrested persons regardless of the crime or offense for which the arrest is being made.
While we express our commendation of law enforcement agents as they vigorously
track down offenders in their laudable effort to curb the pervasive and deleterious
effects of dangerous drugs on our society, they must, however, be constantly mindful of
the reasonable limits of their authority, because it is not unlikely that in their clear intent
to purge society of its lawless elements, they may be knowingly or unknowingly
transgressing the protected rights of its citizens including even members of its own police
force.
WHEREFORE, premises considered, the assailed Decision dated 22 June 2011 issued by
the Twentieth Division, and the Resolution dated 2 February 2012 issued by the former
Twentieth Division of the Court of Appeals, in CA-G.R. C.R.No. 00670 are SET ASIDE.
Petitioner is hereby ACQUITTED.
SO ORDERED.
Leonardo-de Castro, Bersamin, Villarama, Jr. and Reyes, JJ., concur.

196

DECISION
QUISUMBING, J p:
This petition for certiorari pursuant to Rule 45 of the Rules of Court seeks to annul and set
aside the Resolution 1 dated September 27, 1995 and the Decision 2 dated April 10,
1996 of the Court of Appeals 3 in CA-G.R. SP No. 36533, 4 and the Orders 5 dated
August 29, 1994 6 and February 2, 1995 7 that were issued by the trial court in Civil Case
No. Q-93-18394. 8
The pertinent antecedent facts which gave rise to the instant petition, as stated in the
questioned Decision 9 , are as follows: dctai
"On January 21, 1988 defendant SAUDIA hired plaintiff as a Flight
Attendant for its airlines based in Jeddah, Saudi Arabia. . . .
On April 27, 1990, while on a lay-over in Jakarta, Indonesia, plaintiff
went to a disco dance with fellow crew members Thamer AlGazzawi and Allah Al-Gazzawi, both Saudi nationals. Because it
was almost morning when they returned to their hotels, they
agreed to have breakfast together at the room of Thamer. When
they were in te (sic) room, Allah left on some pretext. Shortly after
he did, Thamer attempted to rape plaintiff. Fortunately, a roomboy
and several security personnel heard her cries for help and rescued
her. Later, the Indonesian police came and arrested Thamer and
Allah Al-Gazzawi, the latter as an accomplice.

CONFLICT OF LAWS
BATCH 1

When plaintiff returned to Jeddah a few days later, several SAUDIA

officials interrogated her about the Jakarta incident. They then
requested her to go back to Jakarta to help arrange the release of
Thamer and Allah. In Jakarta, SAUDIA Legal Officer Sirah Akkad
and base manager Baharini negotiated with the police for the
immediate release of the detained crew members but did not
succeed because plaintiff refused to cooperate. She was afraid
that she might be tricked into something she did not want because
of her inability to understand the local dialect. She also declined to
sign a blank paper and a document written in the local dialect.
Eventually, SAUDIA allowed plaintiff to return to Jeddah but barred
her from the Jakarta flights. LLphil

FIRST DIVISION
[G.R. No. 122191. October 8, 1998.]
1. SAUDI ARABIAN AIRLINES, petitioner, vs. COURT OF APPEALS,
MILAGROS P. MORADA and HON. RODOLFO A. ORTIZ, in his
capacity as Presiding Judge of Branch 89, Regional Trial Court of
Quezon City, respondents.

Plaintiff learned that, through the intercession of the Saudi Arabian

government, the Indonesian authorities agreed to deport Thamer
and Allah after two weeks of detention. Eventually, they were
again put in service by defendant SAUDI (sic). In September 1990,
defendant SAUDIA transferred plaintiff to Manila.
On January 14, 1992, just when plaintiff thought that the Jakarta
incident was already behind her, her superiors requested her to see

197

Mr. Ali Miniewy, Chief Legal Officer of SAUDIA, in Jeddah, Saudi

Arabia. When she saw him, he brought her to the police station
where the police took her passport and questioned her about the
Jakarta incident. Miniewy simply stood by as the police put
pressure on her to make a statement dropping the case against
Thamer and Allah. Not until she agreed to do so did the police
return her passport and allowed her to catch the afternoon flight
out of Jeddah.
One year and a half later or on June 16, 1993, in Riyadh, Saudi
Arabia, a few minutes before the departure of her flight to Manila,
plaintiff was not allowed to board the plane and instead ordered
to take a later flight to Jeddah to see Mr. Miniewy, the Chief Legal
Officer of SAUDIA. When she did, a certain Khalid of the SAUDIA
office brought her to a Saudi court where she was asked to sign a
document written in Arabic. They told her that this was necessary
to close the case against Thamer and Allah. As it turned out,
plaintiff signed a notice to her to appear before the court on June
27, 1993. Plaintiff then returned to Manila. Cdpr
Shortly afterwards, defendant SAUDIA summoned plaintiff to report
to Jeddah once again and see Miniewy on June 27, 1993 for
further investigation. Plaintiff did so after receiving assurance from
SAUDIA's Manila manager, Aslam Saleemi, that the investigation
was routinary and that it posed no danger to her.
In Jeddah, a SAUDIA legal officer brought plaintiff to the same
Saudi court on June 27, 1993. Nothing happened then but on June
28, 1993, a Saudi judge interrogated plaintiff through an interpreter
about the Jakarta incident. After one hour of interrogation, they let
her go. At the airport, however, just as her plane was about to take
off, a SAUDIA officer told her that the airline had forbidden her to
take flight. At the Inflight Service Office where she was told to go,
the secretary of Mr. Yahya Saddick took away her passport and
told her to remain in Jeddah, at the crew quarters, until further
orders. LLpr
On July 3, 1993 a SAUDIA legal officer again escorted plaintiff to
the same court where the judge, to her astonishment and shock,
rendered a decision, translated to her in English, sentencing her to
five months imprisonment and to 286 lashes. Only then did she
realize that the Saudi court had tried her, together with Thamer
and Allah, for what happened in Jakarta. The court found plaintiff
guilty of (1) adultery; (2) going to a disco, dancing and listening to
the music in violation of Islamic laws; and (3) socializing with the
male crew, in contravention of Islamic tradition."10

Facing conviction, private respondent sought the help of her employer, petitioner
SAUDIA. Unfortunately, she was denied any assistance. She then asked the Philippine
Embassy in Jeddah to help her while her case is on appeal. Meanwhile, to pay for her
upkeep, she worked on the domestic flight of SAUDIA, while Thamer and Allah
continued to serve in the international flights. 11
Because she was wrongfully convicted, the Prince of Makkah dismissed the case
against her and allowed her to leave Saudi Arabia. Shortly before her return to
Manila, 12 she was terminated from the service by SAUDIA, without her being informed
of the cause. LLpr
On November 23, 1993, Morada filed a Complaint 13 for damages against SAUDIA, and
Khaled Al-Balawi ("Al-Balawi"), its country manager.
On January 19, 1994, SAUDIA filed an Omnibus Motion To Dismiss 14 which raised the
following grounds, to wit: (1) that the Complaint states no cause of action against
Saudia; (2) that defendant Al-Balawi is not a real party in interest; (3) that the claim or
demand set forth in the Complaint has been waived, abandoned or otherwise
extinguished; and (4) that the trial court has no jurisdiction to try the case.
On February 10, 1994, Morada filed her Opposition (To Motion to Dismiss) 15 . Saudia
filed a reply 16 thereto on March 3, 1994.
On June 23, 1994, Morada filed an Amended Complaint 17 wherein Al-Balawi was
dropped as party defendant. On August 11, 1994, Saudia filed its Manifestation and
Motion to Dismiss Amended Complaint 18 .
The trial court issued an Order 19 dated August 29, 1994 denying the Motion to Dismiss
Amended Complaint filed by Saudia.
From the Order of respondent Judge 20 denying the Motion to Dismiss, SAUDIA filed on
September 20, 1994, its Motion for Reconsideration 21 of the Order dated August 29,
1994. It alleged that the trial court has no jurisdiction to hear and try the case on the
basis of Article 21 of the Civil Code, since the proper law applicable is the law of the
Kingdom of Saudi Arabia. On October 14, 1994, Morada filed her Opposition 22 (To
Defendant's Motion for Reconsideration). cdrep
In the Reply 23 filed with the trial court on October 24, 1994, SAUDIA alleged that since
its Motion for Reconsideration raised lack of jurisdiction as its cause of action, the
Omnibus Motion Rule does not apply, even if that ground is raised for the first time on
appeal. Additionally, SAUDIA alleged that the Philippines does not have any substantial
interest in the prosecution of the instant case, and hence, without jurisdiction to
adjudicate the same.
Respondent Judge subsequently issued another Order 24 dated February 2, 1995,
denying SAUDIA's Motion for Reconsideration. The pertinent portion of the assailed
Order reads as follows:

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"Acting on the Motion for Reconsideration of defendant Saudi

Arabian Airlines filed, thru counsel, on September 20, 1994, and the
Opposition thereto of the plaintiff filed, thru counsel, on October
14, 1994, as well as the Reply therewith of defendant Saudi Arabian
Airlines filed, thru counsel, on October 24, 1994, considering that a
perusal of the plaintiff's Amended Complaint, which is one for the
recovery of actual, moral and exemplary damages plus attorney's
fees, upon the basis of the applicable Philippine law, Article 21 of
the New Civil Code of the Philippines, is, clearly, within the
jurisdiction of this Court as regards the subject matter, and there
being nothing new of substance which might cause the reversal or
modification of the order sought to be reconsidered, the motion for
reconsideration of the defendant, is DENIED. prLL
SO ORDERED." 25
Consequently, on February 20, 1995, SAUDIA filed its Petition for Certiorari and Prohibition
with Prayer for Issuance of Writ of Preliminary Injunction and/or Temporary Restraining
Order 26 with the Court of Appeals.
Respondent Court of Appeals promulgated a Resolution with Temporary Restraining
Order 27 dated February 23, 1995, prohibiting the respondent Judge from further
conducting any proceeding, unless otherwise directed, in the interim.
In another Resolution 28 promulgated on September 27, 1995, now assailed, the
appellate court denied SAUDIA's Petition for the Issuance of a Writ of Preliminary
Injunction dated February 18, 1995, to wit:
"The Petition for the Issuance of a Writ of Preliminary Injunction is
hereby DENIED, after considering the Answer, with Prayer to Deny
Writ of Preliminary Injunction (Rollo, p. 135) the Reply and Rejoinder,
it appearing that herein petitioner is not clearly entitled thereto
(Unciano Paramedical College, et. Al., v. Court of
Appeals, et. Al., 100335, April 7, 1993, Second Division). cdphil
SO ORDERED."
On October 20, 1995, SAUDIA filed with this Honorable Court the instant Petition 29 for
Review with Prayer for Temporary Restraining Order dated October 13, 1995.
However, during the pendency of the instant Petition, respondent Court of Appeals
rendered the Decision 30 dated April 10, 1996, now also assailed. It ruled that the
Philippines is an appropriate forum considering that the Amended Complaint's basis for
recovery of damages is Article 21 of the Civil Code, and thus, clearly within the
jurisdiction of respondent Court. It further held that certiorari is not the proper remedy in
a denial of a Motion to Dismiss, inasmuch as the petitioner should have proceeded to
trial, and in case of an adverse ruling, find recourse in an appeal.

On May 7, 1996, SAUDIA filed its Supplemental Petition for Review with Prayer for
Temporary Restraining Order 31 dated April 30, 1996, given due course by this Court.
After both parties submitted their Memoranda, 32 the instant case is now deemed
submitted for decision. LLjur
Petitioner SAUDIA raised the following issues:
"I
The trial court has no jurisdiction to hear and try Civil Case No. Q93-18394 based on Article 21 of the New Civil Code since the
proper law applicable is the law of the Kingdom of Saudi Arabia
inasmuch as this case involves what is known in private
international law as a 'conflicts problem'. Otherwise, the Republic
of the Philippines will sit in judgment of the acts done by another
sovereign state which is abhorred.
II
Leave of court before filing a supplemental pleading is not a
jurisdictional requirement. Besides, the matter as to absence of
leave of court is now moot and academic when this Honorable
Court required the respondents to comment on petitioner's April 30,
1996 Supplemental Petition For Review With Prayer For A Temporary
Restraining Order Within Ten (10) Days From Notice Thereof. Further,
the Revised Rules of Court should be construed with liberality
pursuant to Section 2, Rule 1 thereof. prcd
III
Petitioner received on April 22, 1996 the April 10, 1996 decision in
CA-G.R. SP NO. 36533 entitled 'Saudi Arabian Airlines v. Hon.
Rodolfo A. Ortiz, et al.' and filed its April 30, 1996 Supplemental
Petition For Review With Prayer For A Temporary Restraining Order
on May 7, 1996 at 10:29 a.m. or within the 15-day reglementary
period as provided for under Section 1, Rule 45 of the Revised Rules
of Court. Therefore, the decision in CA-G.R. SP No. 36533 has not
yet become final and executory and this Honorable Court can
take cognizance of this case." 33
From the foregoing factual and procedural antecedents, the following issues emerge
for our resolution:
I.
WHETHER RESPONDENT APPELLATE COURT ERRED IN HOLDING THAT
THE REGIONAL TRIAL COURT OF QUEZON CITY HAS JURISDICTION TO

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HEAR AND TRY CIVIL CASE NO. Q-93-18394 ENTITLED "MILAGROS P.

MORADA V. SAUDI ARABIAN AIRLINES". cdrep
II.
WHETHER RESPONDENT APPELLATE COURT ERRED IN RULING THAT IN
THIS CASE PHILIPPINE LAW SHOULD GOVERN.
Petitioner SAUDIA claims that before us is a conflict of laws that must be settled at the
outset. It maintains that private respondent's claim for alleged abuse of rights occurred
in the Kingdom of Saudi Arabia. It alleges that the existence of a foreign element
qualifies the instant case for the application of the law of the Kingdom of Saudi Arabia,
by virtue of the lex loci delicti commissi rule. 34
On the other hand, private respondent contends that since her Amended Complaint is
based on Articles 19 35 and 21 36 of the Civil Code, then the instant case is properly a
matter of domestic law. 37

Under the factual antecedents obtaining in this case, there is no dispute that the
interplay of events occurred in two states, the Philippines and Saudi Arabia. prcd
As stated by private respondent in her Amended Complaint 38 dated June 23, 1994:
"2.Defendant SAUDI ARABIAN AIRLINES or SAUDIA is a foreign
airlines corporation doing business in the Philippines. It may be
served with summons and other court processes at Travel Wide
Associated Sales (Phils.), Inc., 3rd Floor, Cougar Building, 114 Valero
St., Salcedo Village, Makati, Metro Manila.
xxx xxx xxx
6.Plaintiff learned that, through the intercession of the Saudi
Arabian government, the Indonesian authorities agreed to deport
Thamer and Allah after two weeks of detention. Eventually, they
were again put in service by defendant SAUDIA. In September
1990, defendant SAUDIA transferred plaintiff to Manila.
7.On January 14, 1992, just when plaintiff thought that the Jakarta
incident was already behind her, her superiors requested her to see
MR. Ali Meniewy, Chief Legal Officer of SAUDIA. in Jeddah, Saudi
Arabia. When she saw him, he brought her to the police station
where the police took her passport and questioned her about the
Jakarta incident. Miniewy simply stood by as the police put
pressure on her to make a statement dropping the case against
Thamer and Allah. Not until she agreed to do so did the police

return her passport and allowed her to catch the afternoon flight
out of Jeddah. Cdpr
8.One year and a half later or on June 16, 1993, in Riyadh, Saudi
Arabia, a few minutes before the departure of her flight to Manila,
plaintiff was not allowed to board the plane and instead ordered
to take a later flight to Jeddah to see Mr. Meniewy, the Chief Legal
Officer of SAUDIA. When she did, a certain Khalid of the SAUDIA
office brought her to a Saudi court where she was asked to sigh a
document written in Arabic. They told her that this was necessary
to close the case against Thamer and Allah. As it turned out,
plaintiff signed a notice to her to appear before the court on June
27, 1993. Plaintiff then returned to Manila.
9.Shortly afterwards, defendant SAUDIA summoned plaintiff to
report to Jeddah once again and see Miniewy on June 27, 1993 for
further investigation. Plaintiff did so after receiving assurance from
SAUDIA's Manila manager, Aslam Saleemi, that the investigation
was routinary and that it posed no danger to her. Cdpr
10.In Jeddah, a SAUDIA legal officer brought plaintiff to the same
Saudi court on June 27, 1993. Nothing happened then but on June
28, 1993, a Saudi judge interrogated plaintiff through an interpreter
about the Jakarta incident. After one hour of interrogation, they let
her go. At the airport, however, just as her plane was about to take
off, a SAUDIA officer told her that the airline had forbidden her to
take that flight. At the Inflight Service Office where she was told to
go, the secretary of Mr. Yahya Saddick took away her passport
and told her to remain in Jeddah, at the crew quarters, until further
orders. prLL
11.On July 3, 1993 a SAUDIA legal officer again escorted plaintiff to
the same court where the judge, to her astonishment and shock,
rendered a decision, translated to her in English, sentencing her to
five months imprisonment and to 286 lashes. Only then did she
realize that the Saudi court had tried her, together with Thamer
and Allah, for what happened in Jakarta. The court found plaintiff
guilty of (1) adultery; (2) going to a disco, dancing, and listening to
the music in violation of Islamic laws; (3) socializing with the male
crew, in contravention of Islamic tradition.
12.Because SAUDIA refused to lend her a hand in the case, plaintiff
sought the help of the Philippine Embassy in Jeddah. The latter
helped her pursue an appeal from the decision of the court. To
pay for her upkeep, she worked on the domestic flights of
defendant SAUDIA while, ironically, Thamer and Allah freely served
the international flights." 39

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Where the factual antecedents satisfactorily establish the existence of a foreign

element, we agree with petitioner that the problem herein could present a "conflicts"
case.
A factual situation that cuts across territorial lines and is affected by the diverse laws of
two or more states is said to contain a "foreign element". The presence of a foreign
element is inevitable since social and economic affairs of individuals and associations
are rarely confined to the geographic limits of their birth or conception. 40
The forms in which this foreign element may appear are many. 41 The foreign element
may simply consist in the fact that one of the parties to a contract is an alien or has a
foreign domicile, or that a contract between nationals of one State involves properties
situated in another State. In other cases, the foreign element may assume a complex
form. 42
In the instant case, the foreign element consisted in the fact that private respondent
Morada is a resident Philippine national, and that petitioner SAUDIA is a resident foreign
corporation. Also, by virtue of the employment of Morada with the petitioner Saudia as
a flight stewardess, events did transpire during her many occasions of travel across
national borders, particularly from Manila, Philippines to Jeddah, Saudi Arabia, and vice
versa, that caused a "conflicts" situation to arise. llcd
We thus find private respondent's assertion that the case is purely domestic, imprecise.
A conflicts problem presents itself here, and the question of jurisdiction 43 confronts the
court a quo.
After a careful study of the private respondent's Amended Complaint, 44 and the
Comment thereon, we note that she aptly predicated her cause of action on Articles 19
and 21 of the New Civil Code.

which is impossible for human foresight to specifically provide in the

statutes."
Although Article 19 merely declares a principle of law, Article 21 gives flesh to its
provisions. Thus, we agree with private respondent's assertion that violations of Articles 19
and 21 are actionable, with judicially enforceable remedies in the municipal forum.
Based on the allegations 46 in the Amended Complaint, read in the light of the Rules of
Court on jurisdiction 47 we find that the Regional Trial Court (RTC) of Quezon City
possesses jurisdiction over the subject matter of the suit. 48 Its authority to try and hear
the case is provided for under Section 1 of Republic Act No. 7691, to wit:
"Section 1.Section 19 of Batas Pambansa Blg. 129, otherwise known
as the "Judiciary Reorganization Act of 1980", is hereby amended
to read as follows: cda
SEC. 19.Jurisdiction in Civil Cases. Regional Trial Courts shall
exercise exclusive jurisdiction:
xxx xxx xxx
(8)In all other cases in which demand, exclusive of interest,
damages of whatever kind, attorney's fees, litigation expenses, and
cost or the value of the property in controversy exceeds One
hundred thousand pesos (P100,000.00) or, in such other cases in
Metro Manila, where the demand, exclusive of the abovementioned items exceeds Two hundred Thousand pesos
(P200,000.00). (Emphasis ours)
xxx xxx xxx

On one hand, Article 19 of the New Civil Code provides;

"Art. 19.Every person must, in the exercise of his rights and in the
performance of his duties, act with justice give everyone his due
and observe honesty and good faith."
On the other hand, Article 21 of the New Civil Code provides:
"Art. 21.Any person who willfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy
shall compensate the latter for damages." cdtai
Thus, in Philippine National Bank (PNB) vs. Court of Appeals, 45 this Court held that:
"The aforecited provisions on human relations were intended to
expand the concept of torts in this jurisdiction by granting
adequate legal remedy for the untold number of moral wrongs

And following Section 2 (b), Rule 4 of the Revised Rules of Court the venue, Quezon
City, is appropriate:
"SEC. 2.Venue in Courts of First Instance. [Now Regional Trial
Court]
(a). . .
(b)Personal actions. All other actions may be commenced and
tried where the defendant or any of the defendants resides or may
be found, or where the plaintiff or any of the plaintiff resides, at the
election of the plaintiff." llcd
Pragmatic considerations, including the convenience of the parties, also weigh heavily
in favor of the RTC Quezon City assuming jurisdiction. Paramount is the private interest of
the litigant. Enforceability of a judgment if one is obtained is quite obvious. Relative

201

advantages and obstacles to a fair trial are equally important. Plaintiff may not, by
choice of an inconvenient forum, 'vex', 'harass', or 'oppress' the defendant, e.g. by
inflicting upon him needless expense or disturbance. But unless the balance is strongly in
favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. 49
Weighing the relative claims of the parties, the court a quo found it best to hear the
case in the Philippines. Had it refused to take cognizance of the case, it would be
forcing plaintiff (private respondent now) to seek remedial action elsewhere, i.e. in the
Kingdom of Saudi Arabia where she no longer maintains substantial connections. That
would have caused a fundamental unfairness to her. Cdpr
Moreover, by hearing the case in the Philippines no unnecessary difficulties and
inconvenience have been shown by either of the parties. The choice of forum of the
plaintiff (now private respondent) should be upheld.
Similarly, the trial court also possesses jurisdiction over the persons of the parties herein.
By filing her Complaint and Amended Complaint with the trial court, private respondent
has voluntary submitted herself to the jurisdiction of the court.
The records show that petitioner SAUDIA has filed several motions 50 praying for the
dismissal of Morada's Amended Complaint. SAUDIA also filed an Answer In Ex
Abundante Cautelam dated February 20, 1995. What is very patent and explicit from
the motions filed, is that SAUDIA prayed for other reliefs under the premises. Undeniably,
petitioner SAUDIA has effectively submitted to the trial court's jurisdiction by praying for
the dismissal of the Amended Complaint on grounds other than lack of jurisdiction. LLpr
As held by this Court in Republic vs. Ker and Company, Ltd.: 51
"We observe that the motion to dismiss filed on April 14, 1962, aside
from disputing the lower court's jurisdiction over defendant's
person, prayed for dismissal of the complaint on the ground that
plaintiff's cause of action has prescribed. By interposing such
second ground in its motion to dismiss, Ker and Co., Ltd. availed of
an affirmative defense on the basis of which it prayed the court to
resolve controversy in its favor. For the court to validly decide the
said plea of defendant Ker & Co., Ltd., it necessarily had to acquire
jurisdiction upon the latter's person, who, being the proponent of
the affirmative defense, should be deemed to have abandoned its
special appearance and voluntarily submitted itself to the
jurisdiction of the court."

to the jurisdiction of the court. A special appearance by motion

made for the purpose of objecting to the jurisdiction of the court
over the person will be held to be a general appearance, if the
party in said motion should, for example, ask for a dismissal of the
action upon the further ground that the court had no jurisdiction
over the subject matter." 52
Clearly, petitioner had submitted to the jurisdiction of the Regional Trial Court of Quezon
City. Thus, we find that the trial court has jurisdiction over the case and that its exercise
thereof, justified. LibLex
As to the choice of applicable law, we note that choice-of-law problems seek to
answer two important questions: (1) What legal system should control a given situation
where some of the significant facts occurred in two or more states; and (2) to what
extent should the chosen legal system regulate the situation. 53
Several theories have been propounded in order to identify the legal system that should
ultimately control. Although ideally, all choice-of-law theories should intrinsically
advance both notions of justice and predictability, they do not always do so. The forum
is then faced with the problem of deciding which of these two important values should
be stressed. 54
Before a choice can be made, it is necessary for us to determine under what category
a certain set of facts or rules fall. This process is known as "characterization", or the
"doctrine of qualification". It is the "process of deciding whether or not the facts relate to
the kind of question specified in a conflicts rule." 55 The purpose of "characterization" is
to enable the forum to select the proper law. 56
Our starting point of analysis here is not a legal relation, but a factual situation, event, or
operative fact. 57 An essential element of conflict rules is the indication of a "test" or
"connecting factor" or "point of contact". Choice-of-law rules invariably consist of a
factual relationship (such as property right, contract claim) and a connecting factor or
point of contact, such as the situs of the res, the place of celebration, the place of
performance, or the place of wrongdoing. 58
Note that one or more circumstances may be present to serve as the possible test for
the determination of the applicable law. 59 These "test factors" or "points of contact" or
"connecting factors" could be any of the following:
"(1)The nationality of a person, his domicile, his residence, his place
of sojourn, or his origin;

Similarly, the case of De Midgely vs. Ferandos, held that:

"When the appearance is by motion for the purpose of objecting
to the jurisdiction of the court over the person, it must be for the
sole and separate purpose of objecting to the jurisdiction of the
court. If his motion is for any other purpose than to object to the
jurisdiction of the court over his person, he thereby submits himself

(2)the seat of a legal or juridical person, such as a corporation;

(3)the situs of a thing, that is, the place where a thing is, or is
deemed to be situated. In particular, the lex situs is decisive when
real rights are involved; prcd

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(4)the place where an act has been done, the locus actus, such as
the place where a contract has been made, a marriage
celebrated, a will signed or a tort committed. The lex loci actus is
particularly important in contracts and torts:
(5)the place where an act is intended to come into effect, e.g.,
the place of performance of contractual duties, or the place
where a power of attorney is to be exercised;
(6)the intention of the contracting parties as to the law that should
govern their agreement, the lex loci intentionis;
(7)the place where judicial or administrative proceedings are
instituted or done. The lex fori the law of the forum is
particularly important because, as we have seen earlier, matters of
'procedure' not going to the substance of the claim involved are
governed by it; and because the lex fori applies whenever the
content of the otherwise applicable foreign law is excluded from
application in a given case for the reason that it falls under one of
the exceptions to the applications of foreign law, and cdll
(8)the flag of a ship, which in many cases is decisive of practically
all legal relationships of the ship and of its master or owner as such.
It also covers contractual relationships particularly contracts of
affreightment." 60 (Emphasis ours.)
After a careful study of the pleadings on record, including allegations in the Amended
Complaint deemed admitted for purposes of the motion to dismiss, we are convinced
that there is reasonable basis for private respondent's assertion that although she was
already working in Manila, petitioner brought her to Jeddah on the pretense that she
would merely testify in an investigation of the charges she made against the two
SAUDIA crew members for the attack on her person while they were in Jakarta. As it
turned out, she was the one made to face trial for very serious charges, including
adultery and violation of Islamic laws and tradition. cdtai
There is likewise logical basis on record for the claim that the "handing over" or "turning
over" of the person of private respondent to Jeddah officials, petitioner may have
acted beyond its duties as employer. Petitioner's purported act contributed to and
amplified or even proximately caused additional humiliation, misery and suffering of
private respondent. Petitioner thereby allegedly facilitated the arrest, detention and
prosecution of private respondent under the guise of petitioner's authority as employer,
taking advantage of the trust, confidence and faith she reposed upon it. As purportedly
found by the Prince of Makkah, the alleged conviction and imprisonment of private
respondent was wrongful. But these capped the injury or harm allegedly inflicted upon
her person and reputation, for which petitioner could be liable as claimed, to provide
compensation or redress for the wrongs done, once duly proven.

Considering that the complaint in the court a quo is one involving torts, the "connecting
factor" or "point of contact" could be the place or places where the tortious conduct
or lex loci actus occurred. And applying the torts principle in a conflicts case, we find
that the Philippines could be said as a situs of the tort (the place where the alleged
tortious conduct took place). This is because it is in the Philippines where petitioner
allegedly deceived private respondent, a Filipina residing and working here. According
to her, she had honestly believed that petitioner would, in the exercise of its rights and in
the performance of its duties, "act with justice, give her her due and observe honesty
and good faith." Instead, petitioner failed to protect her, she claimed. That certain acts
or parts of the injury allegedly occurred in another country is of no moment. For in our
view what is important here is the place where the over-all harm or the totality of the
alleged injury to the person, reputation, social standing and human rights of
complainant, had lodged, according to the plaintiff below (herein private respondent).
All told, it is not without basis to identify the Philippines as the situs of the alleged
tort. LibLex
Moreover, with the widespread criticism of the traditional rule of lex loci delicti commisi,
modem theories and rules on tort liability 61 have been advanced to offer fresh judicial
approaches to arrive at just results. In keeping abreast with the modern theories on tort
liability, we find here an occasion to apply the "State of the most significant relationship"
rule, which in our view should be appropriate to apply now, given the factual context of
this case.
In applying said principle to determine the State which has the most significant
relationship, the following contacts are to be taken into account and evaluated
according to their relative importance with respect to the particular issue: (a) the place
where the injury occurred; (b) the place where the conduct causing the injury
occurred; (c) the domicile, residence, nationality, place of incorporation and place of
business of the parties, and (d) the place where the relationship, if any, between the
parties is centered. 62
As already discussed, there is basis for the claim that over-all injury occurred and lodged
in the Philippines. There is likewise no question that private respondent is a resident
Filipina national, working with petitioner, a resident foreign corporation engaged here in
the business of international air carriage. Thus, the "relationship" between the parties was
centered here, although it should be stressed that this suit is not based on mere labor
law violations. From the record, the claim that the Philippines has the most significant
contact with the matter in this dispute, 63 raised by private respondent as plaintiff below
against defendant (herein petitioner), in our view, has been properly established. cdll
Prescinding from this premise that the Philippines is the situs of the tort comp lained of
and the place "having the most interest in the problem", we find, by way of
recapitulation, that the Philippine law on tort liability should have paramount
application to and control in the resolution of the legal issues arising out of this case.
Further, we hold that the respondent Regional Trial Court has jurisdiction over the parties
and the subject matter of the complaint; the appropriate venue is in Quezon City,
which could properly apply Philippine law. Moreover, we find untenable petitioner's
insistence that "[s]ince private respondent instituted this suit, she has the burden of
pleading and proving the applicable Saudi law on the matter." 64 As aptly said by

203

private respondent, she has "no obligation to plead and prove the law of the Kingdom
of Saudi Arabia since her cause of action is based on Articles 19 and 21" of the Civil
Code of the Philippines. In her Amended Complaint and subsequent pleadings, she
never alleged that Saudi Law should govern this case. 65 And as correctly held by the
respondent appellate court, "considering that it was the petitioner who was invoking the
applicability of the law of Saudi Arabia, then the burden was on it [petitioner] to plead
and to establish what the law of Saudi Arabia is". 66
Lastly, no error could be imputed to the respondent appellate court in upholding the
trial court's denial of defendant's (herein petitioner's) motion to dismiss the case; Not
only was jurisdiction in order and venue properly laid, but appeal after trial was
obviously available, and expeditious trial itself indicated by the nature of the case at
hand. Indubitably, the Philippines is the state intimately concerned with the ultimate
outcome of the case below, not just for the benefit of all the litigants, but also for the
vindication of the country's system of law and justice in a transnational setting. With
these guidelines in mind, the trial court must proceed to try and adjudge the case in the
light of relevant Philippine law, with due consideration of the foreign element or
elements involved. Nothing said herein, of course, should be construed as prejudging
the results of the case in any manner whatsoever. cdphil
WHEREFORE, the instant petition for certiorari is hereby DISMISSED. Civil Case No. Q-9318394 entitled "Milagros P. Morada vs. Saudi Arabia Airlines" is hereby REMANDED to
Regional Trial Court of Quezon City, Branch 89 for further proceedings.
SO ORDERED.
EN BANC
[G.R. No. L-16749. January 31, 1963.]
2. IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN,
DECEASED. ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN,
Heir of the deceased, Executor and Heir-appellees, vs. HELEN
CHRISTENSEN GARCIA, oppositor-appellant.
M. R. Sotelo for executor and heir-appellees.
Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.
DECISION
LABRADOR, J p:
This is an appeal from a decision of the Court of First Instance of Davao, Hon. Vicente N.
Cusi, Jr., presiding, in Special Proceeding No. 622 of said court, dated September 14,
1949, approving among other things the final accounts of the executor, directing the
executor to reimburse Maria Lucy Christensen the amount of P3,600 paid by her to

Helen Christensen Garcia as her legacy, and declaring Maria Lucy Christensen entitled
to the residue of the property to be enjoyed during her lifetime, and in case of death
without issue, one-half of said residue to be payable to Mrs. Carrie Louise C. Borton, etc.,
in accordance with the provisions of the will of the testator Edward E. Christensen. The
will was executed in Manila on March 5, 1951 and contains the following provisions:
"3.I declare . . . that I have but one (1) child, named Maria Lucy
Christensen (now Mrs. Bernard Daney), who was born in the
Philippines about twenty-eight years ago, and who is now residing
at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.
"4.I further declare that I now have no living ascendants, and no
descendents except my above named daughter, Maria Lucy
Christensen Daney.
xxx xxx xxx
"7.I give, devise and bequeath unto Maria Helen Christensen, now
married to Eduardo Garcia, about eighteen years of age and who,
notwithstanding the fact that she was baptized Christensen, is not
in any way related to me, nor has she been at any time adopted
by me, and who, from all information I have now resides in Egpit,
Digos, Davao, Philippines, the sum of Three Thousand Six Hundred
Pesos (P3,600.00), Philippine Currency, the same to be deposited in
trust for the said Maria Helen Christensen with the Davao Branch of
the Philippine National Bank, and paid to her at the rate of One
Hundred Pesos (P100.00), Philippine Currency per month until the
principal thereof as well as any interest which may have accrued
thereon, is exhausted.
xxx xxx xxx
"12.I hereby give devise and bequeath unto my well-beloved
daughter, the said Maris Lucy Christensen Daney (Mrs. Bernard
Daney), now residing as aforesaid at No. 665 Rodger Young
Village, Los Angeles, California, U.S.A., all the income from the rest,
remainder, and residue of my property and estate, real, personal
and/or mixed, of whatsoever kind or character, and wheresoever
situated, of which I may be possessed at my death and which may
have come to me from any source whatsoever, during her lifetime:
. . ."
It is in accordance with the above-quoted provisions that the executor in his final
account and project partition ratified the payment of only P3,600 to Helen Christensen
Garcia and proposed that the residue of the estate be transferred to his daughter,
Maria Lucy Christensen.

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Opposition to the approval of the project of partition was filed by Helen Christensen
Garcia, insofar as it deprives her (Helen) of her legitime as an acknowledged natural
child, she having been declared by Us in G.R. Nos. L-11483-84 an acknowledged natural
child of the deceased Edward E. Christensen. The legal grounds of opposition are (a)
that the distribution should be governed by the laws of the Philippines, and (b) that said
order of distribution is contrary thereto insofar as it denies to Helen Christensen, one of
two acknowledged natural children, one-half of the estate in full ownership. In
amplification of the above grounds it was alleged that the law that should govern the
estate of the deceased Christensen should not be the internal law of California alone,
but the entire law thereof because several foreign elements are involved, that the
forum is the Philippines and even if the case were decided in California, Section 946 of
the California Civil Code, which requires that the domicile of the decedent apply,
should be applicable. It was also alleged that Maria Helen Christensen having been
declared an acknowledged natural child of the decedent, she is deemed for all
purposes legitimate from the time of her birth.
The court below ruled that as Edward E. Christensen was a citizen of the United States
and of the State of California at the time of his death, the successional rights and
intrinsic validity of the provisions in his will are to be governed by the law of California, in
accordance with which a testator has the right to dispose of his property in the way he
desires, because the right of absolute dominion over his property is sacred and
inviolable (In re McDaniel's Estate, 77 Cal. Appl. 2d 877, 176 P. 2d 952, and In re
Kaufman, 117 Cal. 286, 49 Pac. 192, cited in page 179, Record on Appeal). Oppositor
Maria Helen Christensen, through counsel, filed various motions for reconsideration, but
these were denied. Hence this appeal.
The most important assignments of error are as follows:
I
THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE
HONORABLE SUPREME COURT THAT HELEN IS THE ACKNOWLEDGED
NATURAL CHILD OF EDWARD E. CHRISTENSEN AND, CONSEQUENTLY,
IN DEPRIVING HER OF HER JUST SHARE IN THE INHERITANCE.
II
THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING
TO RECOGNIZE THE EXISTENCE OF SEVERAL FACTORS, ELEMENTS
AND CIRCUMSTANCES CALLING FOR THE APPLICATION OF
INTERNATIONAL LAW.
III
THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER
INTERNATIONAL LAW, PARTICULARLY UNDER THE RENVOI DOCTRINE,
THE INTRINSIC VALIDITY OF THE TESTAMENTARY DISPOSITION OR THE
DISTRIBUTION OF THE ESTATE OF THE DECEASED EDWARD E.

CHRISTENSEN SHOULD BE GOVERNED BY THE LAWS OF THE

PHILIPPINES.
IV
THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE
OF DISTRIBUTION SUBMITTED BY THE EXECUTOR IS CONTRARY TO THE
PHILIPPINE LAWS.
V
THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE
PHILIPPINE LAWS HELEN CHRISTENSEN GARCIA IS ENTITLED TO ONEHALF (1/2) OF THE ESTATE IN FULL OWNERSHIP.

There is no question that Edward E. Christensen was a citizen of the United States and of
the State of California at the time of his death. But there is also no question that at the
time of his death he was domiciled in the Philippines, as witness the following facts
admitted by the executor himself in appellee's brief:
"In the proceedings for admission of the will to probate, the facts of
record show that the deceased Edward E. Christensen was born on
November 29, 1875, in New York City, N. Y., U.S.A.; his first arrival in
the Philippines, as an appointed school teacher, was on July 1,
1901, on board the U.S. Army Transport 'Sheridan' with Port of
Embarkation as the City of San Francisco, in the State of California,
U.S.A. He stayed in the Philippines until 1904.
"In December, 1904, Mr. Christensen returned to the United States
and stayed there for the following nine years until 1913, during
which time he resided in, and was teaching school in Sacramento,
California.
"Mr. Christensen's next arrival in the Philippines was in July of the
year 1913. However, in 1928, he again departed the Philippines for
the United States and came back here the following year, 1929.
Some nine years later, in 1938, he again returned to his own
country, and came back to the Philippines the following year,
1939.
"Being an American citizen, Mr. Christensen was interned by the
Japanese Military Forces in the Philippines during World War II.
Upon liberation, in April 1945, he left for the United States but
returned to the Philippines in December, 1945. Appellees'
Collective Exhibits '6', CFI Davao, Sp. Proc. 622. as Exhibits 'AA', 'BB'

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and 'CC-Daney'; Exhs. 'MM', 'MM-1', 'MM-2-Daney', and p. 473,

t.s.n., July 21, 1953.
"In April, 1951, Edward E. Christensen returned once more to
California shortly after the making of his last will and testament
(now in question herein) which he executed at his lawyers' offices
in Manila on March 5, 1951. He died at the St. Luke's Hospital in the
City of Manila on April 30, 1953." (Pp. 2-3)
In arriving at the conclusion that the domicile of the deceased is the Philippines, we are
persuaded by the fact that he was born in New York, migrated to California and resided
there for nine years, and since he came to the Philippines in 1913 he returned to
California very rarely and only for short visits (perhaps to relatives), and considering that
he appears never to have owned or acquired a home or properties in that state, which
would indicate that he would ultimately abandon the Philippines and make home in the
State of California.
"Sec. 16.Residence is a term used with many shades of meaning
from mere temporary presence to the most permanent abode.
Generally, however, it is used to denote something more than
mere physical presence." (Goodrich on Conflict of Laws, p. 29)
As to his citizenship, however, we find that the citizenship that he acquired in California
when he resided in Sacramento, California from 1904 to 1913, was never lost by his stay
in the Philippines, for the latter was a territory of the United States (not a state) until 1946
and the deceased appears to have considered himself as a citizen of California by the
fact that when he executed his will in 1951 he declared that he was a citizen of that
State; so that he appears never to have intended to abandon his California citizenship
by acquiring another. This conclusion is in accordance with the following principle
expounded by Goodrich in his Conflict of Laws.
"The terms 'residence' and 'domicile' might well be taken to mean
the same thing, a place of permanent abode. But domicile, as has
been shown, has acquired a technical meaning. Thus one may be
domiciled in a place where he has never been. And he may reside
in a place where he has no domicile. The man with two homes,
between which he divides his time, certainly resides in each one,
while living in it. But if he went on business which would require his
presence for several weeks or months, he might properly be said to
have sufficient connection with the place to be called a resident. It
is clear, however, that, if he treated his settlement as continuing
only for the particular business in hand, not giving up his former
"home," he could not be a domiciled New Yorker. Acquisition of a
domicile of choice requires the exercise of intention as well as
physical presence. Residence simply requires bodily presence as
an inhabitant in a given place, while domicile requires bodily
presence in that place and also an intention to make it one's
domicile.' Residence, however, is a term used with many shades of

meaning, from the merest temporary presence to the most

permanent abode, and it is not safe to insist that any one use is the
only proper one." (Goodrich, p. 29)
The law that governs the validity of his testamentary dispositions is defined in Article 16 of
the Civil Code of the Philippines, which is as follows:
"ART. 16.Real property as well as personal property is subject to the
law of the country where it is situated.
"However, intestate and testamentary successions, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein said
property may be found."
The application of this article in the case at bar requires the determination of the
meaning of the term "national law" as used therein.
There is no single American law governing the validity of testamentary provisions in the
United States, each state of the Union having its own private law applicable to its
citizens only and in force only within the state. The "national law" indicated in Article 16
of the Civil Code above quoted can not, therefore, possibly mean or apply to any
general American law. So it can refer to no other than the private law of the state of
which the decedent is a citizen, in the case at bar, the private law of the State of
California.
The next question is: What is the law in California governing the disposition of personal
property? The decision of the court below, sustains the contention of the executorappellee that under the California Probate Code, a testator may dispose of his property
by will in the form and manner he desires, citing the case of Estate of McDaniel, 77 Cal.
Appl. 2d 877, 176 P. 2d 952. But appellant invokes the provisions of Article 946 of the Civil
Code of California, which is as follows:
"If there is no law to the contrary, in the place where personal
property is situated, it is deemed to follow the person of its owner,
and is governed by the law of his domicile."
The existence of this provision is alleged in appellant's opposition and is not denied.
We have checked it in the California Civil Code and it is there. Appellee, on the
other hand, relies on the case cited in the decision and testified to by a witness.
(Only the case Kaufman is correctly cited.) It is argued on executor's behalf that as
the deceased Christensen was a citizen of the State of California, the internal law
thereof, which is that given in the above-cited case, should govern the
determination of the validity of the testamentary provisions of Christensen's will,
such law being in force in the State of California of which Christensen was a citizen.

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Appellant, on the other hand, insists that Article 946 should be applicable, and in
accordance therewith and following the doctrine of renvoi, the question of the
validity of the testamentary provision in question should be referred back to the law
of the decedent's domicile, which is the Philippines.
The theory or doctrine of renvoi has been defined by various authors, thus:
"The problem has been stated in this way: 'When the Conflict of
Laws rule of the forum refers a jural matter to a foreign law for
decision, is the reference to the corresponding rule of the Conflict
of Law of that foreign law, or is the reference to the purely internal
rules of law of the foreign system; i.e., to the totality of the foreign
law, minus its Conflict of Laws rules?
"On logic, the solution is not an easy one. The Michigan court
chose to accept the renvoi, that is, applied the Conflict of Laws
rule of Illinois which referred the matter back to Michigan law. But
once having determined that the Conflict of Laws principle is the
rule looked to, it is difficult to see why the reference back should
not have been to Michigan Conflict of Laws. This would have
resulted in the 'endless chain of references' which has so often
been criticized by legal writers. The opponents of the renvoi would
have looked merely to the internal law of Illinois, thus rejecting
therenvoi or the reference back. Yet there seems no compelling
logical reason why the original reference should be to the internal
law rather than to the Conflict of Laws rule. It is true that such a
solution avoids going on a merry-go-round, but those who have
accepted the renvoi theory avoid this inextricabilis circulas by
getting off at the second reference and at that point applying
internal law. Perhaps the opponents of the renvoi are a bit more
consistent for they look always to internal law as the rule of
reference.
"Strangely enough, both the advocates for and the objectors to
the renvoi plead that greater uniformity will result from adoption of
their respective views. And still more strange is the fact that the
only way to achieve uniformity in this choice-of-law problem is if in
the dispute the two states whose laws form the legal basis of the
litigation disagree as to whether the renvoi should be accepted. If
both reject, or both accept the doctrine, the result of the litigation
will vary with the choice of the forum. In the case stated above,
had the Michigan court rejected the renvoi, judgment would have
been against the woman; if the suit had been brought in the Illinois
courts, and they too rejected the renvoi, judgment would be for
the woman. The same result would happen, though the courts
would switch with respect to which would hold liability, if both
courts accepted the renvoi.

"The Restatement accepts the renvoi theory in two instances:

where the title to land is in question, and where the validity of a
decree of divorce is challenged. In these cases, the Conflict of
Laws rule of the situs of the land, or the domicile of the parties in
the divorce case, is applied by the forum, but any further reference
goes only to the internal law. Thus, a person's title to land,
recognized by the situs, will be recognized by every court; and
every divorce, valid by the domicile of the parties, will be valid
everywhere." (Goodrich, Conflict of Laws, Sec. 7, pp. 13-14.)
"X, a citizen of Massachusetts, dies intestate, domiciled in France,
leaving movable property in Massachusetts, England, and France.
The question arises as to how this property is to be distributed
among X's next of kin.
"Assume (1) that this question arises in a Massachusetts court. There
the rule of the conflict of laws as to intestate succession to
movables calls for an application of the law of the deceased's last
domicile. Since by hypothesis X's last domicile was France, the
natural thing for the Massachusetts court to do would be to turn to
French statute of distributions, or whatever corresponds thereto in
French law, and decree a distribution accordingly. An examination
of French law, however, would show that if a French court were
called upon to determine how this property should be distributed, it
would refer the distribution to the national law of the deceased,
thus applying the Massachusetts state of distributions. So on the
surface of things the Massachusetts court has open to it alternative
course of action: (a) either to apply the French laws as to intestate
succession, or (b) to resolve itself into a French court and apply the
Massachusetts statute of distributions, on the assumption that this is
what a French court would do. If it accepts the socalled renvoi doctrine, it will follow the latter course, thus applying
its own law.
"This is one type of renvoi. A jural matter is presented which the
conflict-of-laws rule of the forum refers to a foreign law, the
conflict-of-laws rule of which, in turn refers the matter back again
to the law of the forum. This is renvoi in the narrower sense. The
German term for this judicial process is 'Ruckverweisung.'" (Harvard
Law Review, Vol. 31, pp. 523-571.)
"After a decision has been arrived at that a foreign law is to be
resorted to as governing a particular case, the further question
may arise: Are the rules as to the conflict of laws contained in such
foreign law also to be resorted to? This is a question which, while it
has been considered by the courts in but a few instances, has
been the subject of frequent discussion by textwriters and essayists;
and the doctrine involved has been descriptively designated by
them as the 'Renvoyer' to send back, or the Ruchversweisung', or

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the 'Weiterverweisung', since an affirmative answer to the question

postulated and the operation of the adoption of the foreign law in
toto would in many cases result in returning the main controversy to
be decided according to the law of the forum . . . (15 C.J.S. 872.)
"Another theory, known as the 'doctrine of renvoi', has been
advanced. The theory of the doctrine of renvoi is that the court of
the forum, in determining the question before it, must take into
account the whole law of the other jurisdiction, but also its rules as
to conflict of laws, and then apply the law to the actual question
which the rules of the other jurisdiction prescribe. This may be the
law of the forum. The doctrine of therenvoi has generally been
repudiated by the American authorities." (2 Am. Jur. 296.)
The scope of the theory of renvoi has also been defined and the reasons for its
application in a country explained by Prof. Lorenzen in an article in the Yale Law
Journal, Vol. 27, 1917-1918, pp. 509-531. The pertinent parts of the article are quoted
herein below:
"The recognition of the renvoi theory implies that the rules of the
conflict of laws are to be understood as incorporating not only the
ordinary or internal law of the foreign state or country, but its rules
of the conflict of laws as well. According to this theory 'the law of a
country' means the whole of its law.
xxx xxx xxx
"Von Bar presented his views at the meeting of the institute of
International Law, at Neuchatel, in 1900, in the form of the
following theses:
"(1)Every court shall observe the law of its country as regards the
application of foreign laws.
"(2)Provided that no express provision to the contrary exists, the
court shall respect:
"(a)The provisions of a foreign law which disclaims the right to bind
its nationals abroad as regards their personal statute, and desires
that said personal statute shall be determined by law of the
domicile, or even by the law of the place where the act in
question occurred.
"(b)The decision of two or more foreign systems of law, provided it
be certain that one of them is necessarily competent, which agree
in attributing the determination of a question to the same system of
law.

xxx xxx xxx

"If, for example, the English Law directs its judge to distribute the
personal estate of an Englishman who has died domiciled in
Belgium in accordance with the law of his domicile, he must first
inquire whether the law of Belgium would distribute personal
property upon death in accordance with the law of domicile, and
if he finds that the Belgian law would make the distribution in
accordance with the law of nationality that is the English law,
he must accept this reference back to his own law."
We note that Article 946 of the California Civil Code as its conflict of laws rule, while the
rule applied in In re Kaufman, supra, its internal law. If the law on succession and the
conflict of law rules of California are to be enforced jointly, each in its own intended
and appropriate sphere, the principle cited In re Kaufman should apply to citizens living
in the State, but Article 946 should apply to such of its citizens as are not domiciled in
California but in other jurisdictions. The rule laid down of resorting to the law of the
domicile in the determination of matters with foreign element involved is in accord with
the general principle of American law that the domiciliary law should govern in most
matters or rights which follow the person of the owner.
"When a man dies leaving personal property in one or more
estates, and leaves a will directing the manner of distribution of the
property, the law of the state where he was domiciled at the time
of his death will be looked to in deciding legal questions about the
will, almost as completely as the law of the situs is consulted in
questions about the devise of land. It is logical that, since the
domiciliary rules control devolution of the personal estate in case
of intestate succession, the same rules should determine the
validity of an attempted testamentary disposition of the property.
Here, also, it is not that the domiciliary has effect beyond the
borders of the domiciliary state. The rules of the domicile are
recognized as controlling by the Conflict of Laws rules at the situs of
the property, and the reason for the recognition as in the case of
intestate succession, is the general convenience of the doctrine.
The New York court has said on the point; 'The general principle
that a disposition of personal property valid at the domicile of the
owner, is valid everywhere, is one of universal application. It had its
origin in that international comity which was one of the first fruits of
civilization, and in this age, when business intercourse and the
process of accumulating property take but little notice of
boundary lines, the practical wisdom and justice of the rule is more
apparent than ever.'" (Goodrich, Conflict of Laws, Sec. 164, pp.
442-443.)
Appellees argue that what Article 16 of the Civil Code of the Philippines pointed out as
the national law is the internal law of California. But as above explained the laws of
California have prescribed two sets of laws for its citizens, one for residents therein and
another for those domiciled in other jurisdictions. Reason demands that We should

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enforce the California internal law prescribed for its citizens residing therein, and enforce
the conflict of law rules law for the citizens domiciled abroad. If we must enforce the
law of California as in comity we are bound to do, as so declared in Article 16 of our
Civil Code, then we must enforce the law of California in accordance with the express
mandate thereof and as above explained, i.e., apply the internal law for residents
therein, and its conflict of laws rule for those domiciled abroad.
It is argued on appellees behalf that the clause "if there is no law to the contrary in the
place where the property is situated" in Sec. 946 of the California Civil Code refers to
Article 16 of the Civil Code of the Philippines and that the law to the contrary in the
Philippines is the provision in said Article 16 thatthe national of the deceased should
govern. This contention can not be sustained. As explained in the various authorities
cited above the national law mentioned in Article 16 of our Civil Code is the law on
conflict of laws in the California Civil Code, i.e., Article 946, which authorizes the
reference or return of the question to the law of the testator's domicile. The conflict of
law rule in California, Article 946, Civil Code, precisely refers back the case, when a
decedent is not domiciled in California, to the law of his domicile, the Philippines in the
case at bar. The court of the domicile can not and should not refer the case back to
California; such action would leave the issue incapable of determination because the
case will then be like a football, tossed back and forth between the two states,
between the country of which the decedent was a citizen and the country of his
domicile. The Philippine court must apply its own law as directed in the conflict of law
rule of the state of the decedent, if the question has to be decided, especially as the
application of the internal law of California provides no legitime for children while the
Philippine law, Arts. 887 (4) and 894, Civil Code of the Philippines, makes natural children
legally acknowledged forced heirs of the parent recognizing them.

The Philippine cases (In Re Estate of Johnson, 39 Phil., 156; Riera vs. Palmaroli, 40 Phil.,
105; Miciano vs. Brimo, 50 Phil., 867; Babcock Templeton vs. Rider Babcock, 52 Phil., 130;
and Gibbs vs. Government, 59 Phil., 293.) cited by appellees to support the decision can
not possibly apply in the case at bar, for two important reasons, i.e., the subject in each
case does not appear to be a citizen of a state in the United States but with domicile in
the Philippines, and it does not appear in each case that there exists in the state of
which the subject is a citizen, a law similar to or identical with Art. 946 of the California
Civil Code.
We therefore find that as the domicile of the deceased Christensen, a citizen of
California, is the Philippines, the validity of the provisions of his will depriving his
acknowledged natural child, the appellant, should be governed by the Philippine law,
the domicile, pursuant to Art. 946 of the Civil Code of California, not by the internal law
of California.
WHEREFORE, the decision appealed from is hereby reversed and the case returned to
the lower court with instructions that the partition be made as the Philippine law on
succession provides. Judgment reversed, with costs against appellees.

Padilla, Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon,

Regala and Makalintal, JJ., concur.
Bengzon, C.J., took no part.
EN BANC
[G.R. No. 35694. December 23, 1933.]
3. ALLISON D. GIBBS, petitioner-appellee, vs. THE GOVERNMENT OF
THE PHILIPPINE ISLANDS, oppositor-appellant. THE REGISTER OF
DEEDS OF THE CITY OF MANILA, respondent-appellant.
Solicitor-General Hilado for appellants.
Allison D. Gibbs in his own behalf.
DECISION
BUTTE, J p:
This is an appeal from a final order of the Court of First Instance of Manila,
requiring the register of deeds of the City of Manila to cancel certificates of title
Nos. 20880, 28336 and 28331, covering lands located in the City of Manila,
Philippine Islands, and issue in lieu thereof new certificates of transfer of title in favor
of Allison D. Gibbs without requiring him to present any document showing that the
succession tax due under Article XI of Chapter 40 of the Administrative Code has
been paid.
The said order of court of March 10, 1931, recites that the parcels of land
covered by said certificates of title formerly belonged to the conjugal partnership
of Allison D. Gibbs and Eva Johnson Gibbs; that the latter died intestate in Palo Alto,
California, on November 28, 1929; that at the time of her death she and her
husband were citizens of the State of California and domiciled therein.
It appears further from said order that Allison D. Gibbs was appointed
administrator of the estate of his said deceased wife in case No. 36795 in the same
court, entitled "In the Matter of the Intestate Estate of Eva Johnson Gibbs,
Deceased"; that in said intestate proceedings, the said Allison D. Gibbs, on
September 22, 1930, filed an ex parte petition in which he alleged "that the parcels
of land hereunder described belong to the conjugal partnership of your petitioner
and his wife, Eva Johnson Gibbs", describing in detail the three tracts here involved;
and further alleging that his said wife, Eva Johnson Gibbs", describing in detail the
three tracts here involved; and further alleging that his said wife, a citizen and
resident of California, died on November 28, 1929; that in accordance with the law
of California, the community property of spouses who are citizens of California,
upon the death of the wife previous to that of the husband, belongs absolutely to

209

the surviving husband without administration; that the conjugal partnership of

Allison D. Gibbs and Eva Johnson Gibbs, deceased, has no obligations or debts
and no one will be prejudiced by adjudicating said parcels of land (and seventeen
others not here involved) to be the absolute property of the said Allison D. Gibbs as
sole owner. The court granted said petition and on September 22, 1930, entered a
decree adjudicating the said Allison D. Gibbs to be the sole and absolute owner of
said lands, applying section 1401 of the Civil Code of California. Gibbs presented
this decree to the register of deeds of Manila and demanded that the latter issue
to him a "transfer certificate of title".
Section 1547 of Article XI of Chapter 40 of the Administrative Code
provides in part that:
"Registers of deeds shall not register in the registry of
property any document transferring real property or real rights
therein or any chattel mortgage, by way of gifts mortis
causa, legacy or inheritance, unless the payment of the tax fixed in
this article and actually due thereon shall be shown. And they shall
immediately notify the Collector of Internal Revenue or the
corresponding provincial treasurer of the nonpayment of the tax
discovered by them. . . ."
Acting upon the authority of said section, the register of deeds of the City
of Manila, declined to accept as binding said decree of court of September 22,
1930, and refused to register the transfer of title of the said conjugal property to
Allison D. Gibbs, on the ground that the corresponding inheritance tax had not
been paid. Thereupon, under date of December 26, 1930, Allison D. Gibbs filed in
the said court a petition for an order requiring the said register of deeds "to issue the
corresponding titles" to the petitioner without requiring previous payment of any
inheritance tax. After due hearing of the parties, the court reaffirmed said order of
September 22, 1930, and entered the order of March 10, 1931, which is under
review on this appeal.
On January 3, 1933, this court remanded the case to the court of origin for
new trial upon additional evidence in regard to the pertinent law of California in
force at the time of the death of Mrs. Gibbs, also authorizing the introduction of
evidence with reference to the dates of the acquisition of the property involved in
this suit and with reference to the California law in force at the time of such
acquisition. The case is now before us with the supplementary evidence.
For the purposes of this case, we shall consider the following facts as
established by the evidence or the admissions of the parties: Allison D. Gibbs has
been continuously, since the year 1902, a citizen of the State of California and
domiciled therein; that he and Eva Johnson Gibbs were married at Columbus,
Ohio, in July, 1906; that there was no antenuptial marriage contract between the
parties; that during the existence of said marriage, the spouses acquired the
following lands, among others, in the Philippine Islands, as conjugal property:

1.A parcel of land in the City of Manila, represented by transfer certificate

of title No. 20880, dated March 16, 1920, and registered in the name of "Allison D.
Gibbs casado con Eva Johnson Gibbs".
2.A parcel of land in the City of Manila, represented by transfer certificate
of title No. 28336, dated May 14, 1927, in which it is certified "that the spouses Allison
D. Gibbs and Eva Johnson Gibbs are the owners in fee simple" of the land therein
described.
3.A parcel of land in the City of Manila, represented by transfer certificate
of title No. 28331, dated April 6, 1927, which states "that Allison D. Gibbs married to
Eva Johnson Gibbs" is the owner of the land described therein; that said Eva
Johnson Gibbs died intestate on November 28, 1929, leaving surviving her husband,
the appellee, and two sons, Allison D. Gibbs, now aged 25, and Finley J. Gibbs, now
aged 22, as her sole heirs at law.
Article XI of Chapter 40 of the Administrative Code entitled "Tax on
inheritances, legacies, and other acquisitions mortis causa" provides in section 1536
that "Every transmission by virtue of inheritance . . . of real property . . . shall be
subject to the following tax." It results that the question for determination in this case
is as follows: Was Eva Johnson Gibbs at the time of her death the owner of a
descendible interest in the Philippine lands above-mentioned?
The appellee contends that the law of California should determine the
nature and extend of the title, if any, that vested in Eva Johnson Gibbs under the
three certificates of title Nos. 20880, 28336 and 28331 above referred to, citing
article 9 of the Civil Code. But that, even if the nature and extent of her title under
said certificates be governed by the law of the Philippine Islands, the laws of
California govern the succession to such title, citing the second paragraph of
article 10 of the Civil Code.
Article 9 of the Civil Code is as follows:
"The laws relating to family rights and duties, or to the
status, condition, and legal capacity of persons, are binding upon
Spaniards even though they reside in a foreign country." It is
argued that the conjugal right of the California wife in community
real estate in the Philippine Islands is a personal right and must,
therefore, be settled by the law governing her personal status, that
is, the law of California. But our attention has not been called to
any law of California that incapacitates a married woman from
acquiring or holding land in a foreign jurisdiction in accordance
with the lex rei sit. There is not the slightest doubt that a California
married woman can acquire title to land in a common law
jurisdiction like the State of Illinois or the District of Columbia,
subject to the common-law estate by the courtesy which would
vest in her husband. Nor is there any doubt that if a California
husband acquired land in such a jurisdiction his wife would be

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vested with the common law right of dower, the prerequisite

conditions obtaining. Article 9 of the Civil Code treats of purely
personal relations and status and capacity for juristic acts, the rules
relating to property, both personal and real, being governed by
article 10 of the Civil Code. Furthermore, article 9, by its very terms,
is applicable only to "Spaniards" (now, by construction, to citizens
of the Philippine Islands).
The Organic Act of the Philippine Islands (Act of Congress, August 29,
1916, known as the "Jones Law") as regards the determination of private rights,
grants practical autonomy to the Government of the Philippine Islands. This
Government, therefore, may apply the principles and rules of private international
law (conflict of laws) on the same footing as an organized territory or state of the
United States. We should, therefore, resort to the law of California, the nationality
and domicile of Mrs. Gibbs, to ascertain the norm which would be applied here as
law were there any question as to her status.
But the appellant's chief argument and the sole basis of the lower court's
decision rests upon the second paragraph of article 10 of the Civil Code which is as
follows:
"Nevertheless, legal and testamentary successions, in
respect to the order of succession as well as to the amount of the
successional rights and the intrinsic validity of their provisions, shall
be regulated by the national law of the person whose succession is
in question, whatever may be the nature of the property or the
country in which it may be situated."
In construing the above language we are met at the outset with some
difficulty by the expression "the national law of the person whose succession is in
question", by reason of the rather anomalous political status of the Philippine
Islands. (Cf. Manresa, vol. 1, Codigo Civil, pp. 103, 104.) We encountered no
difficulty in applying article 10 in the case of a citizen of Turkey. (Miciano vs. Brimo,
50 Phil., 867.) Having regard to the practical autonomy of the Philippine Islands, as
above stated, we have concluded that if article 10 is applicable and the estate in
question is that of a deceased American citizen, the succession shall be regulated
in accordance with the norms of the State of his domicile in the United States. (Cf.
Babcock Templeton vs. Rider Babcock, 52 Phil;, 130, 137; In re Estate of Johnson, 39
Phil., 156, 166.)
The trial court found that under the law of California, upon the death of
the wife, the entire community property without administration belongs to the
surviving husband; that he is the absolute owner of all the community property from
the moment of the death of his wife, not by virtue of succession or by virtue of her
death, but by virtue of the fact that when the death of the wife precedes that of
the husband he acquires the community property, not as an heir or as the
beneficiary of his deceased wife, but because she never had more than an
inchoate interest or expectancy which is extinguished upon her death. Quoting the

case of Estate of Klumpke (167 Cal., 415, 419), the court said: "The decisions under
this section (1401 Civil Code of California) are uniform to the effect that the
husband does not take the community property upon the death of the wife by
succession, but that he holds it all from the moment of her death as though
acquired by himself. . . . It never belonged to the estate of the deceased wife."
The argument of the appellee apparently leads to this dilemma: If he
takes nothing by succession from his deceased wife, how can the second
paragraph of article 10 be invoked? Can the appellee be heard to say that there is
a legal succession under the law of California? It seems clear that the second
paragraph of article 10 applies only when a legal or testamentary succession has
taken place in the Philippines in accordance with the law of the Philippine Islands
and no legal succession under the law of California? It seems clear that the second
paragraph of article 10 applies only when a legal or testamentary succession has
taken place in the Philippines in accordance with the law of the Philippine Islands;
and the foreign law is consulted only in regard to the order of succession or the
extent of the successional rights; in other words, the second paragraph of article 10
can be invoked only when the deceased was vested with a descendible interest in
property within the jurisdiction of the Philippine Islands.
In the case of Clarke vs. Clarke (178 U. S., 186, 191; 44 Law. ed., 1028,
1031), the court said:
"It is a principle firmly established that to the law of the
state in which the land is situated we must look for the rules which
govern its descent, alienation, and transfer, and for the effect and
construction of wills and other conveyances. (United
States vs. Crosby, 7 Cranch, 115; 3 L. ed., 287; Clark vs. Graham, 6
Wheat., 577; 5 L. ed., 334; McGoon vs. Scales, 9 Wall., 23; 19 L. ed.,
545; Brine vs. Hartford F. Ins. Co., 96 U. S., 627; 24 L. ed., 858.)"
(See also Estate of Lloyd, 175 Cal., 704, 705.) This fundamental
principle is stated in the first paragraph of article 10 of our Civil
Code as follows: "Personal property is subject to the laws of the
nation of the owner thereof; real property to the laws of the
country in which it is situated."
It is stated in 5 Cal. Jur., 478:
"In accord with the rule that real property is subject to
the lex rei sit, the respective rights of husband and wife in such
property, in the absence of an antenuptial contract, are
determined by the law of the place where the property is situated,
irrespective of the domicile of the parties or of the place where the
marriage was celebrated." (See also Saul vs. His Creditors, 5 Martin
[N. S.], 569; 16 Am. Dec., 212 [La.]; Heidenheimer vs. Loring, 26 S.
W., 99 [Texas].)

211

Under this broad principle, the nature and extent of the title which vested
in Mrs. Gibbs at the time of the acquisition of the community lands here in question
must be determined in accordance with the lex rei sit.
It is admitted that the Philippine lands here in question were acquired as
community property of the conjugal partnership of the appellee and his wife.
Under the law of the Philippine Islands, she was vested of a title equal to that of her
husband. Article 1407 of the Civil Code provides:
"All the property of the spouses shall be deemed
partnership property in the absence of proof that it belongs
exclusively to the husband or to the wife." Article 1395 provides:
"The conjugal partnership shall be governed by the rules
of law applicable to the contract of partnership in all matters in
which such rules do not conflict with the express provisions of this
chapter." Article 1414 provides that "the husband may dispose by
will of his half only of the property of the conjugal partnership."
Article 1426 provides that upon dissolution of the conjugal
partnership and after inventory and liquidation, "the net remainder
of the partnership property shall be divided share and share alike
between the husband and wife, or their respective heirs." Under
the provisions of the Civil Code and the jurisprudence prevailing
here, the wife, upon the acquisition of any conjugal property,
becomes immediately vested with an interest and title therein
equal to that of her husband, subject to the power of
management and disposition which the law vests in the husband.
Immediately upon her death, if there are no obligations of the
decedent, as is true in the present case, her share in the conjugal
property is transmitted to her heirs by succession. (Articles 657, 659,
661, Civil Code; cf. also Coronel vs. Ona, 33 Phil., 456, 469.)

be regulated by section 1386 of the Civil Code of California which was in effect at
the time of the death of Mrs. Gibbs.
The record does not show what the proper amount of the inheritance tax
in this case would be nor that the appellee (petitioner below) in any way
challenged the power of the Government to levy an inheritance tax or the validity
of the statute under which the register of deeds refused to issue a certificate of
transfer reciting that the appellee is the exclusive owner of the Philippine lands
included in the three certificates of title here involved.
The judgment of the court below of March 10, 1931, is reversed with
directions to dismiss the petition, without special pronouncement as to the costs.
Avancea, C.J., Malcolm, Villa-Real, Abad Santos, Hull, and Vickers,
JJ., concur.
Street, J., dissents.
FIRST DIVISION
[G.R. No. 104776. December 5, 1994.]
4. BIENVENIDO M. CADALIN, ROLANDO M. AMUL, DONATO B.
EVANGELISTA, and the rest of 1, 767 NAMED-COMPLAINANTS, thru
and by their Attorney-in-fact, Atty. GERARDO A. DEL
MUNDO, petitioners, vs. PHILIPPINE OVERSEAS EMPLOYMENT
ADMINISTRATION'S ADMINISTRATOR, NATIONAL LABOR RELATIONS
COMMISSION, BROWN & ROOT INTERNATIONAL, INC. AND/OR ASIA
INTERNATIONAL BUILDERS CORPORATION, respondents.
[G.R. Nos. 104911-14. December 5, 1994.]

It results that the wife of the appellee was, by the law of the Philippine
Islands, vested of a descendible interest, equal to that of her husband, in the
Philippine lands covered by certificates of title Nos. 20880, 28336 and 28331, from
the date of their acquisition to the date of her death. That appellee himself
believed that his wife was vested of such a title and interest is manifest from the
second of said certificates, No. 28336, dated May 14, 1927, introduced by him in
evidence, in which it is certified that "the spouses Allison D. Gibbs and Eva Johnson
Gibbs are the owners in fee simple of the conjugal lands therein described."
The descendible interest of Eva Johnson Gibbs in the lands aforesaid was
transmitted to her heirs by virtue of inheritance and this transmission plainly falls
within the inheritance and this transmission plainly falls within the language of
section 1536 of Article XI of Chapter 40 of the Administrative Code which levies a
tax on inheritances. (Cf. Re Estate of Majot, 199 N. Y., 29; 92 N. E., 402; 29 L. R. A. [N.
S.], 780.) It is unnecessary in this proceeding to determine the "order of succession"
or the "extent of the successional rights" (article 10, Civil Code, supra) which would

BIENVENIDO M. CADALIN, ET AL., petitioners, vs. HON. NATIONAL

LABOR RELATIONS COMMISSION, BROWN & ROOT INTERNATIONAL,
INC. and/or ASIA INTERNATIONAL BUILDERS
CORPORATION, respondents.
[G.R. Nos. 105029-32. December 5, 1994.]
ASIA INTERNATIONAL BUILDER CORPORATION and BROWN & ROOT
INTERNATIONAL, INC., petitioners, vs. NATIONAL LABOR RELATIONS
COMMISSION, BIENVENIDO M. CADALIN, ROLANDO M. AMUL,
DONATO B. EVANGELISTA, ROMEO PATAG, RIZALINO REYES,
IGNACIO DE VERA, SOLOMON B. REYES, JOSE M. ABAN, EMIGDIO N.
ABARQUEZ, ANTONIO ACUPAN, ROMEO ACUPAN, BENJAMIN
ALEJANDRE, WILFREDO D. ALIGADO, MARTIN AMISTAD, JR.,

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ROLANDO B. AMUL, AMORSOLO ANADING, ANTONIO T. ANGLO,

VICENTE ARLITA, HERBERT AYO, SILVERIO BALATAZO, AL

(1)to reverse the Resolution dated September 2, 1991 of NLRC in POEA

Cases Nos. L-84-06-555, L-85-10-777, L-85-10-779 and L-86-05-460, insofar as it
granted the claims of 149 claimants; and

DECISION
QUIASON, J p:
The petition in G.R. No. 104776, entitled "Bienvenido M. Cadalin, et. al. v.
Philippine Overseas Employment Administration's Administrator, et. al.," was filed
under Rule 65 of the Revised Rules of Court:
(1)to modify the Resolution dated September 2, 1991 of the National
Labor Relations Commission (NLRC) in POEA Cases Nos. L-84-06-555, L-85-10-777, L85-10-779 and L-86-05-460;
(2)to render a new decision: (i) declaring private respondents as in
default; (ii) declaring the said labor cases as a class suit; (iii) ordering Asia
International Builders Corporation (AIBC) and Brown and Root International Inc.
(BRII) to pay the claims of the 1,767 claimants in said labor cases; (iv) declaring
Atty. Florante M. de Castro guilty of forum-shopping; and (v) dismissing POEA Case
No. L-86-05-460; and
(3)to reverse the Resolution dated March 24, 1992 of the NLRC, denying
the motion for reconsideration of its Resolution dated September 2, 1991 (Rollo, pp.
8-288).
The petition in G.R. Nos. 104911-14, entitled "Bienvenido M. Cadalin, et. al.,
v. Hon. National Labor Relations Commission, et. al.," was filed under Rule 65 of the
Revised Rules of Court:

(2)to reverse the Resolution dated March 21, 1992 of NLRC insofar as it
denied the motions for reconsideration of AIBC and BRII (Rollo, pp. 2-59; 61-230).
The Resolution dated September 2, 1991 of NLRC, which modified the
decision of POEA in four labor cases: (1) awarded monetary benefits only to 149
claimants and (2) directed Labor Arbiter Fatima J. Franco to conduct hearings and
to receive evidence on the claims dismissed by the POEA for lack of substantial
evidence or proof of employment.
Consolidation of Cases
G.R. Nos. 104776 and 105029-32 were originally raffled to the Third Division
while G.R. Nos. 104911-14 were raffled to the Second Division. In the Resolution
dated July 26, 1993, the Second Division referred G.R. Nos. 104911-14 to the Third
Division (G.R. No. 104911-14, Rollo, p. 895).
In the Resolution dated September 29, 1993, the Third Division granted the
motion filed in G.R. Nos. 104911-14 for the consolidation of said cases with G.R. Nos.
104776 and 105029-32, which were assigned to the First Division (G.R. Nos. 10491114, Rollo, pp. 986-1,107; G.R. Nos. 105029-30, Rollo, pp. 369-377, 426-432). In the
Resolution dated October 27, 1993, the First Division granted the motion to
consolidate G.R. Nos. 104911-14 with G.R. No. 104776 (G.R. Nos. 104911-14, Rollo, p.
1109; G.R. No. 105029-32, Rollo, p. 1562).
I

(1)to reverse the Resolution dated September 2, 1991 of NLRC in POEA

Cases Nos. L-84-06-555, L-85-10-777, L-85-10-799 and L-86-05-460 insofar as it: (i)
applied the three-year prescriptive period under the Labor Code of the Philippines
instead of the ten-year prescriptive period under the Civil Code of the Philippines;
and (ii) denied the "three-hour daily average" formula in the computation of
petitioners' overtime pay; and

On June 6, 1984, Bienvenido M.. Cadalin, Rolando M. Amul and Donato B.

Evangelista, in their own behalf and on behalf of 728 other overseas contract
workers (OCWs) instituted a class suit by filing an "Amended Complaint" with the
Philippine Overseas Employment Administration (POEA) for money claims arising
from their recruitment by AIBC and employment by BRII (POEA Case NO. L-84-06555). The claimants were represented by Atty. Gerardo del Mundo.

(2)to reverse the Resolution dated March 24, 1992 of NLRC, denying the
motion for reconsideration of its Resolution dated September 2, 1991 (Rollo, pp. 825; 26-220).

BRII is a foreign corporation with headquarters in Houston, Texas, and is

engaged in construction; while AIBC is a domestic corporation licensed as a
service contractor to recruit, mobilize and deploy Filipino workers for overseas
employment on behalf of its foreign principals.

The petition in G.R. Nos. 105029-32, entitled "Asia International Builders

Corporation, et. al., v. National Labor Relations Commission, et. al." was filed under
Rule 65 of the Revised Rules of Court:

The amended complaint principally sought the payment of the unexpired

portion of the employment contracts, which was terminated prematurely, and
secondarily, the payment of the interest of the earnings of the Travel and Reserved
Fund, interest on all the unpaid benefits; area wage and salary differential pay;
fringe benefits; refund of SSS and premium not remitted to the SSS; refund of
withholding tax not remitted to the BIR; penalties for committing prohibited

213

practices; as well as the suspension of the license of AIBC and the accreditation of
BRII (G.R. No. 104776, Rollo, pp. 13-14).

On November 20, 1984, AIBC and BRII filed a "Comment" praying, among
other reliefs, that claimants should be ordered to amend their complaint.

At the hearing on June 25, 1984, AIBC was furnished a copy of the
complaint and was given, together with BRII, up to July 5, 1984 to file its answer.

On December 27, 1984, the POEA Administrator issued an order directing

AIBC and BRII to file their answers within ten days from receipt of the order.

On July 3, 1984, POEA Administrator, upon motion of AIBC and BRII,

ordered the claimants to file a bill of particulars within ten days from receipt of the
order and the movants to file their answers within ten days from receipt of the bill of
particulars. The POEA Administrator also scheduled a pre-trial conference on July
25, 1984.

On February 27, 1985, AIBC and BRII appealed to NLRC seeking the
reversal of the said order of the POEA Administrator. Claimants opposed the
appeal, claiming that it was dilatory and praying that AIBC and BRII be declared in
default.

On July 13, 1984, the claimants submitted their "Compliance and

Manifestation." On July 23, 1984, AIBC filed a "Motion to Strike Out of the Records",
the "Complaint" and the "Compliance and Manifestation." On July 25, 1984, the
claimants filed their "Rejoinder and Comments," averring, among other matters, the
failure of AIBC and BRII to file their answers and to attend the pre-trial conference
on July 25, 1984. The claimants alleged that AIBC and BRII had waived their right to
present evidence and had defaulted by failing to file their answers and attend the
pre-trial conference.
On October 2, 1984, the POEA Administrator denied the "Motion to Strike
Out of the Records" filed by AIBC but required the claimants to correct the
deficiencies in the complaint pointed out in the order.
On October 10, 1984, claimants asked for time within which to comply
with the Order of October 2, 1984 and filed an "Urgent Manifestation," praying that
the POEA Administrator direct the parties to submit simultaneously their position
papers, after which the case should be deemed submitted for decision. On the
same day, Atty. Florante de Castro filed another complaint for the same money
claims and benefits in behalf of several claimants, some of whom were also
claimants in POEA Case No. L-84-06-555 (POEA Case No. 85-10-779).
On October 19, 1984, claimants filed their "Compliance" with the Order
dated October 2, 1984 and an "Urgent Manifestation," praying that the POEA direct
the parties to submit simultaneously their position papers after which the case
would be deemed submitted for decision. On the same day, AIBC asked for time to
file its comment on the "Compliance" and "Urgent Manifestation" of claimants. On
November 6, 1984, it filed a second motion for extension of time to file the
comment.
On November 8, 1984, the POEA Administrator informed AIBC that its
motion for extension of time was granted.
On November 14, 1984, claimants filed an opposition to the motions for
extension of time and asked that AIBC and BRII be declared in default for failure to
file their answers.

On April 2, 1985, the original claimants filed an "Amended Complaint

and/or Position Paper" dated March 24, 1985, adding new demands: namely, the
payment of overtime pay, extra night work pay, annual leave differential pay,
leave indemnity pay, retirement and savings benefits and their share of forfeitures
(G.R. No. 104776, Rollo, pp. 14-16). On April 15, 1985, the POEA Administrator
directed AIBC to file its answer to the amended complaint (G.R. No. 104776, Rollo,
p. 20).
On May 28, 1985, claimants filed an "Urgent Motion for Summary
Judgment." On the same day, the POEA issued an order directing AIBC and BRII to
file their answers to the "Amended Complaint," otherwise, they would be deemed
to have waived their right to present evidence and the case would be resolved on
the basis of complainants' evidence.
On June 5, 1985, AIBC countered with a "Motion to Dismiss as Improper
Class Suit and Motion for Bill of Particulars Re: Amended Complaint dated March
24, 1985." Claimants opposed the motions.
On September 4, 1985, the POEA Administrator reiterated his directive to
AIBC and BRII to file their answers in POEA Case No. L-84-06-555.
On September 18, 1985, AIBC filed its second appeal to the NLRC,
together with a petition for the issuance of a writ of injunction. On September 19,
1985, NLRC enjoined the POEA Administrator from hearing the labor cases and
suspended the period for the filing of the answers of AIBC and BRII.
On September 19, 1985, claimants asked the POEA Administrator to
include additional claimants in the case and to investigate alleged wrongdoings of
BRII, AIBC and their respective lawyers.
On October 10, 1985, Romeo Patag and two co-claimants filed a
complaint (POEA Case No. L-85-10-777) against AIBC and BRII with the POEA,
demanding monetary claims similar to those subject of POEA Case No. L-84-06-555.
In the same month, Solomon Reyes also filed his own complaint (POEA Case No. L85-10-779) against AIBC and BRII.

214

On October 17, 1985, the law firm of Florante M. de Castro & Associates
asked for the substitution of the original counsel of record and the cancellation of
the special powers of attorney given the original counsel.

On December 12, 1985, Atty. Del Mundo filed in NLRC a notice of the
claim to enforce attorney's lien.
On May 29, 1986, Atty. De Castro filed a complaint for money claims
(POEA Case No. 86-05-460) in behalf of 11 claimants including Bienvenido Cadalin,
a claimant in POEA Case No. 84-06-555.
On December 12, 1986, the NLRC dismissed the two appeals filed on
February 27, 1985 and September 18, 1985 by AIBC and BRII.
In narrating the proceedings of the labor cases before the POEA
Administrator, it is not amiss to mention that two cases were filed in the Supreme
Court by the claimants, namely G.R. No. 72132 on September 26, 1985 and
Administrative Case No. 2858 on March 18, 1986. On May 13, 1987, the Supreme
Court issued a resolution in Administrative Case No. 2858 directing the POEA
Administrator to resolve the issues raised in the motions and oppositions filed in
POEA Cases Nos. L-84-06-555 and L-86-05-460 and to decide the labor cases with
deliberate dispatch.
AIBC also filed a petition in the Supreme Court (G.R. No. 78489),
questioning the Order dated September 4, 1985 of the POEA Administrator. Said
order required BRII and AIBC to answer the amended complaint in POEA Case No.
L-84-06-555. In a resolution dated November 9, 1987, we dismissed the petition by
informing AIBC that all its technical objections may properly be resolved in the
hearings before the POEA.
Complaints were also filed before the Ombudsman. The first was filed on
September 22, 1988 by claimant Hermie Arguelles and 18 co-claimants against the
POEA Administrator and several NLRC Commissioners. The Ombudsman merely
referred the complaint to the Secretary of Labor and Employment with a request
for the early disposition of POEA Case No. L-84-06-555. The second was filed on April
28, 1989 by claimants Emigdio P. Bautista and Rolando R. Lobeta charging AIBC
and BRII for violation of labor and social legislations. The third was filed by Jose R.
Santos, Maximino N. Talibsao and Amado B. Bruce denouncing AIBC and BRII of
violations of labor laws.
On January 13, 1987, AIBC filed a motion for reconsideration of the NLRC
Resolution dated December 12, 1986.
On January 14, 1987, AIBC reiterated before the POEA Administrator its
motion for suspension of the period for filing an answer or motion for extension of
time to file the same until the resolution of its motion for reconsideration of the order

of the NLRC dismissing the two appeals. On April 28, 1987, NLRC en banc denied
the motion for reconsideration.
At the hearing on June 19, 1987, AIBC submitted its answer to the
complaint. At the same hearing, the parties were given a period of 15 days from
said date within which to submit their respective position papers. On June 24, 1987
claimants filed their "Urgent Motion to Strike Out Answer," alleging that the answer
was filed out of time. On June 29, 1987, claimants filed their "Supplement to Urgent
Manifestational Motion" to comply with the POEA Order of June 19, 1987. On
February 24, 1988, AIBC and BRII submitted their position paper. On March 4, 1988,
claimants filed their "Ex-parte Motion to Expunge from the Records" the position
paper of AIBC and BRII, claiming that it was filed out of time.
On September 1, 1988, the claimants represented by Atty. De Castro filed
their memorandum in POEA Case No. L-86-05-460. On September 6, 1988, AIBC and
BRII submitted their Supplemental Memorandum. On September 12, 1988, BRII filed
its "Reply to Complainant's Memorandum." On October 26, 1988, claimants
submitted their "Ex-parte Manifestational Motion and Counter-Supplemental
Motion," together with 446 individual contracts of employments and service
records. On October 27, 1988, AIBC and BRII filed a "Consolidated Reply."
On January 30, 1989, the POEA Administrator rendered his decision in
POEA Case No. L-84-06-555 and the other consolidated cases, which awarded the
amount of $824,652.44 in favor of only 324 complainants. cdphil
On February 10, 1989, claimants submitted their "Appeal Memorandum for
Partial Appeal" from the decision of the POEA. On the same day, AIBC also filed its
motion for reconsideration and/or appeal in addition to the "Notice of Appeal" filed
earlier on February 6, 1989 by another counsel for AIBC.
On February 17, 1989, claimants filed their "Answer to Appeal," praying for
the dismissal of the appeal of AIBC and BRII.
On March 15, 1989, claimants filed their "Supplement to Complainants'
Appeal Memorandum," together with their "newly discovered evidence" consisting
of payroll records.
On April 5, 1989, AIBC and BRII submitted to NLRC their "Manifestation,"
stating among other matters that there were only 728 named claimants. On April
20, 1989, the claimants filed their "Counter-Manifestation," alleging that there were
1,767 of them.
On July 27, 1989, claimants filed their "Urgent Motion for Execution" of the
Decision dated January 30, 1989 on the grounds that BRII had failed to appeal on
time and AIBC had not posted the supersedeas bond in the amount of $824,652.44.
On December 23, 1989, claimants filed another motion to resolve the
labor cases.

215

On August 21, 1990, claimants filed their "Manifestational Motion," praying

that all the 1,767 claimants be awarded their monetary claims for failure of private
respondents to file their answers within the reglementary period required by law.

follows:

On September 2, 1991, NLRC promulgated its Resolution, disposing as

"WHEREFORE, premises considered, the Decision of the POEA in

these consolidated cases is modified to the extent and in
accordance with the following dispositions:
1.The claims of the 94 complainants identified
and listed in Annex "A" hereof are dismissed for having
prescribed;
2.Respondents AIBC and Brown & Root are
hereby ordered, jointly and severally, to pay the 149
complainants, identified and listed in Annex "B" hereof,
the peso equivalent, at the time of payment, of the total
amount in US dollars indicated opposite their respective
names;
3.The awards given by the POEA to the 19
complaints classified and listed in Annex "C" hereof, who
appear to have worked elsewhere than in Bahrain are
hereby set aside.

(b)complainants identified and listed in Annex

"E" attached and made an integral part of this Resolution,
whose awards decreed by the POEA, to Our mind, are
not supported by substantial evidence" (G.R. No. 104776;
Rollo, pp. 113-115; G.R. Nos. 104911-14, pp. 85-87; G.R.
Nos. 105029-31, pp. 120-122).
On November 27, 1991, claimant Amado S. Tolentino and 12 coclaimants, who were former clients of Atty. Del Mundo, filed a petition
forcertiorari with the Supreme Court (G.R. Nos. 120741-44). The petition was
dismissed in a resolution dated January 27, 1992.
Three motions for reconsideration of the September 2, 1991 Resolution of
the NLRC were filed. The first, by the claimants represented by Atty. Del Mundo; the
second, by the claimants represented by Atty. De Castro; and the third, by AIBC
and BRII.
In its Resolution dated March 24, 1992, NLRC denied all the motions for
reconsideration.
Hence, these petitions filed by the claimants represented by Atty. Del
Mundo (G.R. No. 104776), the claimants represented by Atty. De Castro (G.R. Nos.
104911-14) and by AIBC and BRII (G.R. Nos. 105029-32).
II
Compromise Agreements

4.All claims other than those indicated in Annex

"B", including those for overtime work and favorably
granted by the POEA, are hereby dismissed for lack of
substantial evidence in support thereof or are beyond the
competence of this Commission to pass upon.
In addition, this Commission, in the exercise of its powers
and authority under Article 218 (c) of the Labor Code, as
amended by R.A. 6715, hereby directs Labor Arbiter Fatima J.
Franco of this Commission to summon parties, conduct hearings
and receive evidence, as expeditiously as possible, and thereafter
submit a written report to this Commission (First Division) of the
proceedings taken, regarding the claims of the following:
(a)complainants identified and listed in Annex
"D" attached and made an integral part of this Resolution,
whose claims were dismissed by the POEA for lack of
proof of employment in Bahrain (these complainants
numbering 683, are listed in pages 13 to 23 of the decision
of POEA, subject of the appeals) and,

Before this Court, the claimants represented by Atty. De Castro and AIBC
and BRII have submitted, from time to time, compromise agreements for our
approval and jointly moved for the dismissal of their respective petitions insofar as
the claimants-parties to the compromise agreements were concerned (See Annex
A for list of claimants who signed quitclaims).
Thus the following manifestations that the parties had arrived at a
compromise agreement and the corresponding motions for the approval of the
agreements were filed by the parties and approved by the Court:
1)Joint Manifestation and Motion involving claimant Emigdio Abarquez
and 47 co-claimants dated September 2, 1992 (G.R. Nos. 104911-14, Rollo, pp. 263406; G.R. Nos. 105029-32, Rollo, pp. 470-615);
2)Joint Manifestation and Motion involving petitioner Bienvenido Cadalin
and 82 co-petitioners dated September 3, 1992 (G.R. No. 104776, Rollo, pp. 364507);

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3)Joint Manifestation and Motion involving claimant Jose M. Aban and 36

co-claimants dated September 17, 1992 (G.R. Nos. 105029-32, Rollo, pp. 613-722;
G.R. No. 104776, Rollo, pp. 518-626; G.R. Nos. 104911-14, Rollo, pp. 407-516);

15)Joint Manifestation and Motion involving Domingo B. Solano and six

co-claimants dated August 25, 1994 (G.R. Nos. 105029-32; G.R. No. 104776; G.R. No.
104911-14).

4)Joint Manifestation and Motion involving claimant Antonio T. Anglo and

17 co-claimants dated October 14, 1992 (G.R. Nos. 105029-32, Rollo, pp. 778-843;
G.R. No. 104776, Rollo, pp. 650-713; G.R. Nos. 104911-14, Rollo, pp. 530-590);

III

5)Joint Manifestation and Motion involving claimant Dionisio Bobongo

and 6 co-claimants dated January 15, 1993 (G.R. No. 104776, Rollo, pp. 813-836;
G.R. Nos. 104911-14, Rollo, pp. 629-652);
6)Joint Manifestation and Motion involving claimant Valerio A. Evangelista
and 4 co-claimants dated March 10, 1993 (G.R. Nos. 104911-14, Rollo, pp. 731-746;
G.R. No. 104776, Rollo, pp. 1815-1829);
7)Joint Manifestation and Motion involving claimants Palconeri Banaag
and 5 co-claimants dated March 17, 1993 (G.R. No. 104776, Rollo, pp. 1657-1703;
G.R. Nos. 104911-14, Rollo, pp. 655-675);
8)Joint Manifestation and Motion involving claimant Benjamin Ambrosio
and 15 other co-claimants dated May 4, 1993 (G.R. No. 105029-32, Rollo, pp. 906956; G.R. Nos. 104911-14, Rollo, pp. 679-729; G.R. No. 104776, Rollo, pp. 1773-1814);
9)Joint Manifestation and Motion involving Valerio Evangelista and 3 coclaimants dated May 10, 1993 (G.R. No. 104776, Rollo, pp. 1815-1829);
10)Joint Manifestation and Motion involving petitioner Quiterio R. Agudo
and 36 co-claimants dated June 14, 1993 (G.R. Nos. 105029-32, Rollo, pp. 974-1190;
G.R. Nos. 104911-14, Rollo, pp. 748-864; G.R. No. 104776, Rollo, pp. 1066-1183);
11)Joint Manifestation and Motion involving claimant Arnaldo J. Alonzo
and 19 co-claimants dated July 22, 1993 (G.R. No. 104776, Rollo, pp. 1173-1235; G.R.
Nos. 105029-32, Rollo, pp. 1193-1256; G.R. Nos. 104911-14, Rollo, pp. 896-959);
12)Joint Manifestation and Motion involving claimant Ricardo C. Dayrit
and 2 co-claimants dated September 7, 1993 (G.R. Nos. 105029-3,Rollo, pp. 12661278; G.R. No. 104776, Rollo, pp. 1243-1254; G.R. Nos. 104911-14, Rollo, pp. 972-984);
13)Joint Manifestation and Motion involving claimant Dante C. Aceres
and 37 co-claimants dated September 8, 1993 (G.R. No. 104776, Rollo, pp. 12571375; G.R. Nos. 104911-14, Rollo, pp. 987-1105; G.R. Nos. 105029-32, Rollo, pp. 12801397);
14)Joint Manifestation and Motion involving Vivencio V. Abella and 27 coclaimants dated January 10, 1994 (G.R. Nos. 105029-32, Rollo, Vol. II);

The facts as found by the NLRC are as follows:

"We have taken painstaking efforts to sift over the more
than fifty volumes now comprising the records of these cases. From
the records, it appears that the complainants-appellants allege
that they were recruited by respondent-appellant AIBC for its
accredited foreign principal, Brown & Root, on various dates from
1975 to 1983. They were all deployed at various projects
undertaken by Brown & Root in several countries in the Middle East,
such as Saudi Arabia, Libya, United Arab Emirates and Bahrain, as
well as in Southeast Asia, in Indonesia and Malaysia.
Having been officially processed as overseas contract
workers by the Philippine Government, all the individual
complainants signed standard overseas employment contracts
(Records, Vols. 25-32. Hereafter, reference to the records would be
sparingly made, considering their chaotic arrangement) with AIBC
before their departure from the Philippines. These overseas
employment contracts invariably contained the following relevant
terms and conditions.
PART B
(1)Employment Position
Classification:
(Code):
(2)Company Employment
Status:
(3)Date of Employment
to Commence on:
(4)Basic Working
Hours Per Week:
(5)Basic Working
Hours per Month:
(6)Basic Hourly Rate:

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(7)Overtime Rate
Per Hour:

be forfeited at the end of the year in which said sick leave is

granted.

(8)Projected Period of Service

(Subject to C (1) of this [sic]):
Months and/or
Job Completion

11.BONUS
A bonus of 20% (for offshore work) of gross income will be
accrued and payable only upon satisfactory completion of this
contract.

xxx xxx xxx

12.OFFDAY PAY
3.HOURS OF WORK AND COMPENSATION
a)The Employee is employed at the hourly rate and
overtime rate as set out in Part B of this Document.
b)The hours of work shall be those set forth by the
Employer, and Employer may, at his sole option, change or adjust
such hours as may be deemed necessary from time to time.
4.TERMINATION
a)Notwithstanding any other terms and conditions of this
agreement, the Employer may, at his sole discretion, terminate
employee's service with cause, under this agreement at any time. If
the Employer terminates the services of the Employee under this
Agreement because of the completion or termination, or
suspension of the work on which the Employee's services were
being utilized, or because of a reduction in force due to a
decrease in scope of such work, or by change in the type of
construction of such work. The Employer will be responsible for his
return transportation to his country of origin. Normally on the most
expeditious air route, economy class accommodation.
xxx xxx xxx
10.VACATION/SICK LEAVE BENEFITS
a)After one (1) year of continuous service and/or
satisfactory completion of contract, employee shall be entitled to
12-days vacation leave with pay. This shall be computed at the
basic wage rate. Fractions of a year's service will be computed on
a pro-rata basis.
b)Sick leave of 15 days shall be granted to the employee
for every year of service for non-work connected injuries or illness. If
the employee failed to avail of such leave benefits, the same shall

The seventh day of the week shall be observed as a day

of rest with 8 hours regular pay. If work is performed on this day, all
hours work shall be paid at the premium rate. However, this offday
pay provision is applicable only when the laws of the Host Country
require payments for rest day.
In the State of Bahrain, where some of the individual
complainants were deployed, His Majesty Isa Bin Salman Al Kaifa,
Amir of Bahrain, issued his Amiri Decree No. 23 on June 16, 1976,
otherwise known as the Labour Law for the Private Sector (Records,
Vol. 18). This decree took effect on August 16, 1976. Some of the
provisions of Amiri Decree No. 23 that are relevant to the claims of
the complainants-appellants are as follows (emphasis supplied):
Art. 79: . . . A worker shall receive payment for
each extra hour equivalent to his wage entitlement
increased by a minimum of twenty-five per centum
thereof for hours worked during the day; and by a
minimum of fifty per centum thereof for hours worked
during the night which shall be deemed to being from
seven o'clock in the evening until seven o'clock in the
morning . . . ."
Art. 80: Friday shall be deemed to be a weekly
day of rest on full pay.
. . . an employer may require a worker, with his
consent, to work on his weekly day of rest if
circumstances so require and in respect of which an
additional sum equivalent to 150% of his normal wage
shall be paid to him . . . ."
Art. 81: . . . When conditions of work require the
worker to work on any official holiday, he shall be paid an
additional sum equivalent to 150% of his normal wage.

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Art. 84: Every worker who has completed one

year's continuous service with his employer shall be
entitled to leave on full pay for a period of not less than
21 days for each year increased to a period not less than
28 days after five continuous years of service."

Second: Assuming that Amiri Decree No. 23 of Bahrain

is applicable in these cases, whether or not complainants' claim for
the benefits provided therein have prescribed.

suit.
A worker shall be entitled to such leave upon a
quantum meruit in respect of the proportion of his service
in that year."
Art. 107: A contract of employment made for a
period of indefinite duration may be terminated by either
party thereto after giving the other party thirty days' prior
notice before such termination, in writing, in respect of
monthly paid workers and fifteen days' notice in respect
of other workers. The party terminating a contract without
giving the required notice shall pay to the other party
compensation equivalent to the amount of wages
payable to the worker for the period of such notice or the
unexpired portion thereof.
Art. 111: . . . the employer concerned shall pay
to such worker, upon termination of employment,
a leaving indemnity for the period of his employment
calculated on the basis of fifteen days' wages for each
year of the first three years of service and of one month's
wages for each year of service thereafter. Such worker
shall be entitled to payment of leaving indemnity upon a
quantum meruit in proportion to the period of his service
completed within a year."
All the individual complainants-appellants have
already been repatriated to the Philippines at the time of
the filing of these cases (R.R. No. 104776, Rollo, pp. 59-65).
IV
The issues raised before and resolved by the NLRC were:
First: Whether or not complainants are entitled to the
benefits provided by Amiri Decree No. 23 of Bahrain;
(a)Whether or not the complainants who have worked in
Bahrain are entitled to the above-mentioned benefits.
(b)Whether or not Art. 44 of the same Decree (allegedly
prescribing a more favorable treatment of alien
employees) bars complainants from enjoying its benefits.

Third: Whether or not the instant cases qualify as a class

Fourth: Whether or not the proceedings conducted by

the POEA, as well as the decision that is the subject of these
appeals, conformed with the requirements of due process;
(a)Whether or not the respondent-appellant was denied
its right to due process;
(b)Whether or not the admission of evidence by the POEA
after these cases were submitted for decision was valid;
(c)Whether or not the POEA acquired jurisdiction over
Brown & Root International, Inc.;
(d)Whether or not the judgment awards are supported by
substantial evidence;
(e)Whether or not the awards based on the averages
and formula presented by the complainants-appellants
are supported by substantial evidence;
(f)Whether or not the POEA awarded sums beyond what
the complainants-appellants prayed for; and, if so,
whether or not these awards are valid.
Fifth: Whether or not the POEA erred in holding
respondents AIBC and Brown & Root jointly are severally liable for
the judgment awards despite the alleged finding that the former
was the employer of the complainants;
(a)Whether or not the POEA has acquired jurisdiction over
Brown & Root;
(b)Whether or not the undisputed fact that AIBC was a
licensed construction contractor precludes a finding that
Brown & Root is liable for complainants claims.
Sixth: Whether or not the POEA Administrator's failure to
hold respondents in default constitutes a reversible error.

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Seventh: Whether or not the POEA Administrator erred

in dismissing the following claims:
a.Unexpired portion of contract;
b. Interest earnings of Travel and Reserve Fund;
c.Retirement and Savings Plan benefits;
d.War Zone bonus or premium pay of at least 100% of
basic pay;
e.Area Differential Pay;
f.Accrued interests on all the unpaid benefits;
g.Salary differential pay;
h.Wage differential pay;
i.Refund of SSS premiums not remitted to SSS;
j.Refund of withholding tax not remitted to BIR;
k.Fringe benefits under B & R's "A Summary of Employee
Benefits" (Annex "Q" of Amended Complaint);
l.Moral and exemplary damages;
m.Attorney's fees of at least ten percent of the judgment
award;

(Labour Law for the Private Sector). NLRC invoked Article 221 of the Labor Code of
the Philippines, vesting on the Commission ample discretion to use every and all
reasonable means to ascertain the facts in each case without regard to the
technicalities of law or procedure. NLRC agreed with the POEA Administrator that
the Amiri Decree No. 23, being more favorable and beneficial to the workers,
should form part of the overseas employment contract of the complainants.
NLRC, however, held that the Amiri Decree No. 23 applied only to the
claimants, who worked in Bahrain, and set aside awards of the POEA Administrator
in favor of the claimants, who worked elsewhere.
On the second issue, NLRC ruled that the prescriptive period for the filing
of the claims of the complainants was three years, as provided in Article 291 of the
Labor Code of the Philippines, and not ten years as provided in Article 1144 of the
Civil Code of the Philippines nor one year as provided in the Amiri Decree No. 23 of
1976.
On the third issue, NLRC agreed with the POEA Administrator that the
labor cases cannot be treated as a class suit for the simple reason that not all the
complainants worked in Bahrain and therefore, the subject matter of the action,
the claims arising from the Bahrain law, is not of common or general interest to all
the complainants.
On the fourth issue, NLRC found at least three infractions of the cardinal
rules of administrative due process: namely, (1) the failure of the POEA
Administrator to consider the evidence presented by AIBC and BRII; (2) some
findings of fact were not supported by substantial evidence; and (3) some of the
evidence upon which the decision was based were not disclosed to AIBC and BRII
during the hearing.
On the fifth issue, NLRC sustained the ruling of the POEA Administrator that
BRII and AIBC are solidarily liable for the claims of the complainants and held that
BRII was the actual employer of the complainants, or at the very least, the indirect
employer, with AIBC as the labor contractor.

n.Other reliefs, like suspending and/or cancelling the

license to recruit of AIBC and the accreditation
of B & R issued by POEA;

NLRC also held that jurisdiction over BRII was acquired by the POEA
Administrator through the summons served on AIBC, its local agent.

o.Penalty for violations of Article 34 (prohibited practices),

not excluding reportorial requirements thereof.

On the sixth issue, NLRC held that the POEA Administrator was correct in
denying the Motion to Declare AIBC in default.

Eight: Whether or not the POEA Administrator erred in

not dismissing POEA Case No. (L) 86-65-460 on the ground of
multiplicity of suits (G.R. Nos. 104911-14, Rollo, pp. 25-29, 51-55).
Anent the first issue, NLRC set aside Section 1, Rule 129 of the 1989 Revised
Rules on Evidence governing the pleading and proof of a foreign law and
admitted in evidence a simple copy of the Bahrain's Amiri Decree No. 23 of 1976

On the seventh issue, which involved other money claims not based on
the Amiri Decree No. 23, NLRC ruled:
(1)that the POEA Administrator has no jurisdiction over the claims for
refund of the SSS premiums and refund of withholding taxes and the claimants
should file their claims for said refund with the appropriate government agencies;

220

(2)the claimants failed to establish that they are entitled to the claims
which are not based on the overseas employment contracts nor the Amiri Decree
No. 23 of 1976;

(5)that NLRC and the POEA Administrator should have dismissed POEA
Case No. L-86-05-460, the case filed by Atty. Florante de Castro (Rollo, pp. 31-40).
AIBC and BRII, commenting on the petition in G.R. No. 104776, argued:

(3)that the POEA Administrator has no jurisdiction over claims for moral
and exemplary damages and nonetheless, the basis for granting said damages
was not established;
(4)that the claims for salaries corresponding to the unexpired portion of
their contract may be allowed if filed within the three-year prescriptive period;
(5)that the allegation that complainants were prematurely repatriated
prior to the expiration of their overseas contract was not established; and
(6)that the POEA Administrator has no jurisdiction over the complaint for
the suspension or cancellation of the AIBC's recruitment license and the
cancellation of the accreditation of BRII.
NLRC passed sub silencio the last issue, the claim that POEA Case No. (L)
86-65-460 should have been dismissed on the ground that the claimants in said
case were also claimants in POEA Case No. (L) 84-06-555. Instead of dismissing
POEA Case No. (L) 86-65-460, the POEA just resolved the corresponding claims in
POEA Case No. (L) 84-06-555. In other words, the POEA did not pass upon the same
claims twice.
V
G.R. No. 104776
Claimants in G.R. No. 104776 based their petition for certiorari on the
following grounds:
(1)that they were deprived by NLRC and the POEA of their right to a
speedy disposition of their cases as guaranteed by Section 16, Article III of the 1987
Constitution. The POEA Administrator allowed private respondents to file their
answers in two years (on June 19, 1987) after the filing of the original complaint (on
April 2, 1985) and NLRC, in total disregard of its own rules, affirmed the action of the
POEA Administrator;
(2)that NLRC and the POEA Administrator should have declared AIBC and
BRII in default and should have rendered summary judgment on the basis of the
pleadings and evidence submitted by claimants;
(3)the NLRC and POEA Administrator erred in not holding that the labor
cases filed by AIBC and BRII cannot be considered a class suit;
(4)that the prescriptive period for the filing of the claims is ten years; and

(1)that they were not responsible for the delay in the disposition of the
labor cases, considering the great difficulty of getting all the records of the more
than 1,500 claimants, the piece-meal filing of the complaints and the addition of
hundreds of new claimants by petitioners;
(2)that considering the number of complaints and claimants, it was
impossible to prepare the answers within the ten-day period provided in the NLRC
Rules, that when the motion to declare AIBC in default was filed on July 19, 1987,
said party had already filed its answer, and that considering the staggering amount
of the claims (more than US$50,000,000.00) and the complicated issues raised by
the parties, the ten-day rule to answer was not fair and reasonable;
(3)that the claimants failed to refute NLRC's finding that there was no
common or general interest in the subject matter of the controversy which was
the applicability of the Amiri Decree No. 23. Likewise, the nature of the claims
varied, some being based on salaries pertaining to the unexpired portion of the
contracts while others being for pure money claims. Each claimant demanded
separate claims peculiar only to himself and depending upon the particular
circumstances obtaining in his case;
(4)that the prescriptive period for filing the claims is that prescribed by
Article 291 of the Labor Code of the Philippines (three years) and not the one
prescribed by Article 1144 of the Civil Code of the Philippines (ten years); and
(5)that they are not concerned with the issue of whether POEA Case No.
L-86-05-460 should be dismissed, this being a private quarrel between the two labor
lawyers (Rollo, pp. 292-305).
Attorney's Lien
On November 12, 1992, Atty. Gerardo A. del Mundo moved to strike out
the joint manifestations and motions of AIBC and BRII dated September 2 and 11,
1992, claiming that all the claimants who entered into the compromise agreements
subject of said manifestations and motions were his clients and that Atty. Florante
M. de Castro had no right to represent them in said agreements. He also claimed
that the claimants were paid less than the award given them by NLRC; that Atty.
De Castro collected additional attorney's fees on top of the 25% which he was
entitled to receive; and that the consent of the claimants to the compromise
agreements and quitclaims were procured by fraud (G.R. No. 104776, Rollo, pp.
838-810). In the Resolution dated November 23, 1992, the Court denied the motion
to strike out the Joint Manifestations and Motions dated September 2 and 11, 1992
(G.R. No. 104911-14, Rollo, pp. 608-609).

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On December 14, 1992, Atty. Del Mundo filed a "Notice and Claim to
Enforce Attorney's Lien," alleging that the claimants who entered into compromise
agreements with AIBI and BRII with the assistance of Atty. De Castro, had all signed
a retainer agreement with his law firm (G.R. No. 104776, Rollo, pp. 623-624; 8381535).
Contempt of Court
On February 18, 1993, an omnibus motion was filed by Atty. Del Mundo to
cite Atty. De Castro and Atty. Katz Tierra for contempt of court and for violation of
Canons 1, 15 and 16 of the Code of Professional Responsibility. The said lawyers
allegedly misled this Court, by making it appear that the claimants who entered
into the compromise agreements were represented by Atty. De Castro, when in
fact they were represented by Atty. Del Mundo (G.R. No. 104776, Rollo, pp. 15601614).

G.R. Nos. 105029-32

In G.R. Nos. 105029-32, BRII and AIBC claim that NLRC gravely abused its
discretion when it: (1) enforced the provisions of the Amiri Decree No. 23 of 1976
and not the terms of the employment contracts; (2) granted claims for holiday,
overtime and leave indemnity pay and other benefits, on evidence admitted in
contravention of petitioner's constitutional right to due process; and (3) ordered the
POEA Administrator to hold new hearings for the 683 claimants whose claims had
been dismissed for lack of proof by the POEA Administrator or NLRC itself. Lastly,
they allege that assuming that the Amiri Decree No. 23 of 1976 was applicable,
NLRC erred when it did not apply the one-year prescription provided in said law
(Rollo, pp. 29-30).
VI
G.R. No. 104776
G.R. Nos. 104911-14
G.R. Nos. 105029-32

On September 23, 1994, Atty. Del Mundo reiterated his charges against
Atty. De Castro for unethical practices and moved for the voiding of the quitclaims
submitted by some of the claimants.
G.R. Nos. 104911-14
The claimants in G.R. Nos. 104911-14 based their petition for certiorari on
the grounds that NLRC gravely abused its discretion when it: (1) applied the threeyear prescriptive period under the Labor Code of the Philippines; and (2) it denied
the claimant's formula based on an average overtime pay of three hours a day
(Rollo, pp. 18-22).
The claimants argue that said method was proposed by BRII itself during
the negotiation for an amicable settlement of their money claims in Bahrain as
shown in the Memorandum dated April 16, 1983 of the Ministry of Labor of Bahrain
(Rollo, pp. 21-22).
BRII and AIBC, in their Comment, reiterated their contention in G.R. No.
104776 that the prescriptive period in the Labor Code of the Philippines, a special
law, prevails over that provided in the Civil Code of the Philippines, a general law.
As to the memorandum of the Ministry of Labor of Bahrain on the method
of computing the overtime pay, BRII and AIBC claimed that they were not bound
by what appeared therein, because such memorandum was proposed by a
subordinate Bahrain official and there was no showing that it was approved by the
Bahrain Minister of Labor. Likewise, they claimed that the averaging method was
discussed in the course of the negotiation for the amicable settlement of the
dispute and any offer made by a party therein could not be used as an admission
by him (Rollo, pp. 228-236).

All the petitions raise the common issue of prescription although they
disagreed as to the time that should be embraced within the prescriptive period.
To the POEA Administrator, the prescriptive period was ten years, applying
Article 1144 of the Civil Code of the Philippines. NLRC believed otherwise, fixing the
prescriptive period at three years as provided in Article 291 of the Labor Code of
the Philippines.
The claimants in G.R. No. 104776 and G.R. Nos. 104911-14, invoking
different grounds, insisted that NLRC erred in ruling that the prescriptive period
applicable to the claims was three years, instead of ten years, as found by the
POEA Administrator.
The Solicitor General expressed his personal view that the prescriptive
period was one year as prescribed by the Amiri Decree No. 23 of 1976 but he
deferred to the ruling of NLRC that Article 291 of the Labor Code of the Philippines
was the operative law.
The POEA Administrator held the view that:
"These money claims (under Article 291 of the Labor
Code) refer to those arising from the employer's violation of the
employee's right as provided by the Labor Code.
In the instant case, what the respondents violated are not
the rights of the workers as provided by the Labor Code, but the
provisions of the Amiri Decree No. 23 issued in Bahrain, which ipso
facto amended the worker's contracts of employment.

222

Respondents consciously failed to conform to these provisions

which specifically provide for the increase of the worker's rate. It
was only after June 30, 1983, four months after the brown builders
brought a suit against B & R in Bahrain for this same claim, when
respondent AIBC's contracts have undergone amendments in
Bahrain for the new hires/renewals (Respondent's Exhibit 7).
Hence, premises considered, the applicable law of
prescription to this instant case is Article 1144 of the Civil Code of
the Philippines, which provides:
'Art. 1144.The following actions may be brought
within ten years from the time the cause of action
accrues:
(1)Upon a written contract;
(2)Upon an obligation created by law;'
Thus, herein money claims of the complainants against the
respondents shall prescribe in ten years from August 16, 1976.
Inasmuch as all claims were filed within the ten-year prescriptive
period, no claim suffered the infirmity of being prescribed" (G.R.
No. 104776, Rollo, 89-90).
In overruling the POEA Administrator, and holding that the prescriptive
period is three years as provided in Article 291 of the Labor Code of the Philippines,
the NLRC argued as follows:
"The Labor Code provides that 'all money claims arising
from employer-employee relations . . . shall be filed within three
years from the time the cause of action accrued; otherwise they
shall be forever barred' (Art. 291, Labor Code, as amended). This
three-year prescriptive period shall be the one applied here and
which should be reckoned from the date of repatriation of each
individual complainant, considering the fact that the case is
having (sic) filed in this country. We do not agree with the POEA
Administrator that this three-year prescriptive period applies only to
money claims specifically recoverable under the Philippine Labor
Code. Article 291 gives no such indication. Likewise, We can not
consider complainants' cause/s of action to have accrued from a
violation of their employment contracts. There was no violation; the
claims arise from the benefits of the law of the country where they
worked. (G.R. No. 104776, Rollo, pp. 90-91).
Anent the applicability of the one-year prescriptive period as provided by
the Amiri Decree No. 23 of 1976, NLRC opined that the applicability of said law was
one of characterization, i.e., whether to characterize the foreign law on

prescription or statute of limitation as "substantive" or "procedural." NLRC cited the

decision in Bournias v. Atlantic Maritime Company (220 F. 2d. 152, 2d Cir. [1955],
where the issue was the applicability of the Panama Labor Code in a case filed in
the State of New York for claims arising from said Code. In said case, the claims
would have prescribed under the Panamanian Law but not under the Statute of
Limitations of New York. The U.S. Circuit Court of Appeals held that the Panamanian
Law was procedural as it was not "specifically intended to be substantive," hence,
the prescriptive period provided in the law of the forum should apply. The Court
observed:
". . . And where, as here, we are dealing with a statute of
limitations of a foreign country, and it is not clear on the face of the
statute that its purpose was to limit the enforceability, outside as
well as within the foreign country concerned, of the substantive
rights to which the statute pertains, we think that as a yardstick for
determining whether that was the purpose this test is the most
satisfactory one. It does not lead American courts into the
necessity of examining into the unfamiliar peculiarities and
refinements of different foreign legal systems. . ."
The court further noted:
xxx xxx xxx
"Applying that test here it appears to us that the libelant is
entitled to succeed, for the respondents have failed to satisfy us
that the Panamanian period of limitation in question was
specifically aimed against the particular rights which the libelant
seeks to enforce. The Panama Labor Code is a statute having
broad objectives, viz: 'The present Code regulates the relations
between capital and labor, placing them on a basis of social
justice, so that, without injuring any of the parties, there may be
guaranteed for labor the necessary conditions for a normal life and
to capital an equitable return to its investment.' In pursuance of
these objectives the Code gives laborers various rights against their
employers. Article 623 establishes the period of limitation for all
such rights, except certain ones which are enumerated in Article
621. And there is nothing in the record to indicate that the
Panamanian legislature gave special consideration to the impact
of Article 623 upon the particular rights sought to be enforced
here, as distinguished from the other rights to which that Article is
also applicable. Were we confronted with the question of whether
the limitation period of Article 621 (which carves out particular
rights to be governed by a shorter limitation period) is to be
regarded as 'substantive' or 'procedural' under the rule of
'specificity' we might have a different case; but here on the
surface of things we appear to be dealing with a 'broad,' and not
a 'specific,' statute of limitations" (G.R. No. 104776, Rollo, pp. 92-94).

223

Claimants in G.R. Nos. 104911-14 are of the view that Article 291 of the
Labor Code of the Philippines, which was applied by NLRC, refers only to claims
"arising from the employer's violation of the employee's right as provided by the
Labor Code." They assert that their claims are based on the violation of their
employment contracts, as amended by the Amiri Decree No. 23 of 1976 and
therefore the claims may be brought within ten years as provided by Article 1144 of
the Civil Code of the Philippines (Rollo, G.R. Nos. 104911-14, pp. 18-21). To bolster
their contention, they cite PALEA v. Philippine Airlines, Inc., 70 SCRA 244 (1976).

that an action barred by the laws of the place where it accrued, will not be
enforced in the forum even though the local statute has not run against it
(Goodrich and Scoles, Conflict of Laws 152-153 [1938]). Section 48 of our Code of
Civil Procedure is of this kind. Said Section provides:

AIBC and BRII, insisting that the actions on the claims have prescribed
under the Amiri Decree No. 23 of 1976, argue that there is in force in the Philippines
a "borrowing law," which is Section 48 of the Code of Civil Procedure and that
where such kind of law exists, it takes precedence over the common-law conflicts
rule (G.R. No. 104776, Rollo, pp. 45-46).

Section 48 has not been repealed or amended by the Civil Code of the
Philippines. Article 2270 of said Code repealed only those provisions of the Code of
Civil Procedures as to which were inconsistent with it. There is no provision in the
Civil Code of the Philippines, which is inconsistent with or contradictory to Section
48 of the Code of Civil Procedure (Paras, Philippine Conflict of Laws 104 [7th ed.]).

First to be determined is whether it is the Bahrain law on prescription of

action based on the Amiri Decree No. 23 of 1976 or a Philippine law on prescription
that shall be the governing law.

In the light of the 1987 Constitution, however, Section 48 cannot be

enforced ex proprio vigore insofar as it ordains the application in this jurisdiction of
Section 156 of the Amiri Decree No. 23 of 1976.

Article 156 of the Amiri Decree No. 23 of 1976 provides:

"A claim arising out of a contract of employment shall not
be actionable after the lapse of one year from the date of the
expiry of the contract" (G.R. Nos. 105029-31, Rollo, p. 226).

"If by the laws of the state or country where the cause of action
arose, the action is barred, it is also barred in the Philippines
Islands."

The courts of the forum will not enforce any foreign claim obnoxious to the
forum's public policy (Canadian Northern Railway Co. v. Eggen, 252 U.S. 553, 40 S.
Ct. 402, 64 L. ed. 713 [1920]). To enforce the one-year prescriptive period of the
Amiri Decree No. 23 of 1976 as regards the claims in question would contravene the
public policy on the protection to labor.

As a general rule, a foreign procedural law will not be applied in the

forum. Procedural matters, such as service of process, joinder of actions, period
and requisites for appeal, and so forth, are governed by the laws of the forum. This
is true even if the action is based upon a foreign substantive law (Restatement of
the Conflict of Laws, Sec. 685; Salonga, Private International Law 131 [1979]).

In the Declaration of Principles and State Policies, the 1987 Constitution

emphasized that:

A law on prescription of actions is sui generis in Conflict of Laws in the

sense that it may be viewed either as procedural or substantive, depending on the
characterization given such a law.

"The state affirms labor as a primary social economic

force. It shall protect the rights of workers and promote their
welfare" (Sec. 18).

Thus in Bournias v. Atlantic Maritime Company, supra, the American court

applied the statute of limitations of New York, instead of the Panamanian law, after
finding that there was no showing that the Panamanian law on prescription was
intended to be substantive. Being considered merely a procedural law even in
Panama, it has to give way to the law of the forum on prescription of actions.
However, the characterization of a statute into a procedural or
substantive law becomes irrelevant when the country of the forum has a
"borrowing statute." Said statute has the practical effect of treating the foreign
statute of limitation as one of substance (Goodrich, Conflict of Laws 152-153
[1938]). A "borrowing statute" directs the state of the forum to apply the foreign
statute of limitations to the pending claims based on a foreign law (Siegel, Conflicts
183 [1975]). While there are several kinds of "borrowing statutes," one from provides

"The state shall promote social justice in all phases of

national development" (Sec. 10).

In Article XIII on Social Justice and Human Rights, the 1987 Constitution
provides:
"Sec. 3.The State shall afford full protection to labor, local
and overseas, organized and unorganized, and promote full
employment and equality of employment opportunities for all."
Having determined that the applicable law on prescription is the
Philippine law, the next question is whether the prescriptive period governing the
filing of the claims is three years, as provided by the Labor Code or ten years, as
provided by the Civil Code of the Philippines.

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The claimants are of the view that the applicable provision is Article 1144
of the Civil Code of the Philippines, which provides:
"The following actions must be brought within ten years
from the right of action accrues:
(1)Upon a written contract;
(2)Upon an obligation created by law;
(3)Upon a judgment."
NLRC, on the other hand, believes that the applicable provision is Article
291 of the Labor Code of the Philippines, which in pertinent part provides:
"Money claims-all money claims arising from employeremployee relations accruing during the effectivity of this Code
shall be filed within three (3) years from the time the cause of
action accrued, otherwise they shall be forever barred.
xxx xxx xxx"
The case of Philippine Air Lines Employees Association v. Philippine Air
Lines, Inc., 70 SCRA (1976) invoked by the claimants in G.R. Nos. 104911-14 is
inapplicable to the cases at bench (Rollo, p. 21). The said case involved the correct
computation of overtime pay as provided in the collective bargaining agreements
and not the Eight-Hour Labor Law.
As noted by the Court: "That is precisely why petitioners did not make any
reference as to the computation for overtime work under the Eight-Hour Labor Law
(Secs. 3 and 4, CA No. 494) and instead insisted that work computation provided in
the collective bargaining agreements between the parties be observed. Since the
claim for pay differentials is primarily anchored on the written contracts between
the litigants, the ten-year prescriptive period provided by Art. 1144(1) of the New
Civil Code should govern."
Section 7-a of the Eight-Hour Labor Law (CA No. 444 as amended by R.A.
No. 1993) provides:
"Any action to enforce any cause of action under this Act
shall be commenced within three years after the cause of action
accrued otherwise such action shall be forever barred, . . . "
The court further explained:

differentials for overtime work is solely based on said law, and not
on a collective bargaining agreement or any other contract. In the
instant case, the claim for overtime compensation is not so much
because of Commonwealth Act No. 444, as amended but
because the claim is demandable right of the employees, by
reason of the above-mentioned collective bargaining agreement."
Section 7-a of the Eight-Hour Labor Law provides the prescriptive period
for filing "actions to enforce any cause of action under said law." On the other
hand, Article 291 of the Labor Code of the Philippines provides the prescriptive
period for filing "money claims arising from employer-employee relations." The claim
is the cases at bench all arose from the employer-employee relations, which is
broader in scope than claims arising from a specific law or from the collective
bargaining agreement.
The contention of the POEA Administrator, that the three-year prescriptive
period under Article 291 of the Labor Code of the Philippines applies only to money
claims specifically recoverable under said Code does not find support in the plain
language of the provision. Neither is the contention of the claimants in G.R. No.
104911-14 that said Article refers only to claims "arising from the employer's violation
of the employee's right," as provided by the Labor Code supported by the facial
reading of the provision.
VII
G.R. No. 104776
A.As the first two grounds for the petition in G.R. No. 104776, claimants
aver: (1) that while their complaints were filed on June 6, 1984 with POEA, the case
was decided only on January 30, 1989, a clear denial of their right to a speedy
disposition of the case; and (2) that NLRC and the POEA Administrator should have
declared AIBC and BRII in default (Rollo, pp. 31-35).
Claimants invoke a new provision incorporated in the 1987 Constitution,
which provides:
"Sec. 16.All persons shall have the right to a speedy disposition of
their cases before all judicial, quasi-judicial, or administrative
bodies."
It is true that the constitutional right to "a speedy disposition of cases" is not
limited to the accused in criminal proceedings but extends to all parties in all cases,
including civil and administrative cases, and in all proceedings, including judicial
and quasi-judicial hearings. Hence, under the Constitution, any party to a case
may demand expeditious action on all officials who are tasked with the
administration of justice.

"The three-year prescriptive period fixed in the Eight-Hour Labor

Law (CA No. 444 as amended) will apply, if the claim for

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However, as held in Caballero v. Alfonso, Jr., 153 SCRA 153 (1987), "speedy
disposition of cases" is a relative term. Just like the constitutional guarantee of
"speedy trial" accorded to the accused in all criminal proceedings, "speedy
disposition of cases" is a flexible concept. It is consistent with delays and depends
upon the circumstances of each case. What the Constitution prohibits are
unreasonable, arbitrary and oppressive delays which render rights nugatory.
Caballero laid down the factors that may be taken into consideration in
determining whether or not the right to a "speedy disposition of cases" has been
violated, thus:
"In the determination of whether or not the right to a "speedy trial"
has been violated, certain factors may be considered and
balanced against each other. These are length of delay, reason for
the delay, assertion of the right or failure to assert it, and prejudice
caused by the delay. The same factors may also be considered in
answering judicial inquiry whether or not a person officially
charged with the administration of justice has violated the speedy
disposition of cases."

The claimants were hired on various dates from 1975 to 1983. They were
deployed in different areas, one group in and the other groups outside of, Bahrain.
The monetary claims totalling more than US$65 million according to Atty. Del
Mundo, included:
"1.Unexpired portion of contract;
2.Interest earnings of Travel and Fund;
3.Retirement and Savings Plan benefit;
4.War Zone bonus or premium pay of at least 100% of basic pay;
5.Area Differential pay;
6.Accrued Interest of all the unpaid benefits;
7.Salary differential pay;

Likewise, in Gonzales v. Sandiganbayan, 199 SCRA 298, (1991), we held:

8.Wage Differential pay;

"It must be here emphasized that the right to a speedy disposition

of a case, like the right to speedy trial, is deemed violated only
when the proceeding is attended by vexatious, capricious, and
oppressive delays; or when unjustified postponements of the trial
are asked for and secured, or when without cause or justified
motive a long period of time is allowed to elapse without the party
having his case tried."

9.Refund of SSS premiums not remitted to Social Security System;

Since July 25, 1984 or a month after AIBC and BRII were served with a
copy of the amended complaint, claimants had been asking that AIBC and BRII be
declared in default for failure to file their answers within the ten-day period
provided in Section 1, Rule III of Book VI of the Rules and Regulations of the POEA.
At that time, there was a pending motion of AIBC and BRII to strike out of the
records the amended complaint and the "Compliance" of claimants to the order of
the POEA, requiring them to submit a bill of particulars.
The cases at bench are not of the run-of-the-mill variety, such that their
final disposition in the administrative level after seven years from their inception,
cannot be said to be attended by unreasonable, arbitrary and oppressive delays
as to violate the constitutional rights to a speedy disposition of the cases of
complainants.
The amended complaint filed on June 6, 1984 involved a total of 1,767
claimants. Said complaint had undergone several amendments, the first being on
April 3, 1985.

10.Refund of Withholding Tax not remitted to Bureau of Internal

Revenue (B.I.R.);
11.Fringe Benefits under Brown & Root's "A Summary of Employees
Benefits consisting of 43 pages (Annex "Q" of Amended
Complaint);
12.Moral and Exemplary Damages;
13.Attorney's fees of at least ten percent of amounts;
14.Other reliefs, like suspending and/or cancelling the license to
recruit of AIBC and issued by the POEA; and
15.Penalty for violation of Article 34 (Prohibited practices) not
excluding reportorial requirements thereof" (NLRC
Resolution, September 2, 1991, pp. 18-19; G.R. No. 104776,
Rollo, pp. 73-74).
Inasmuch as the complaint did not allege with sufficient definiteness and
clarity of some facts, the claimants were ordered to comply with the motion of
AIBC for a bill of particulars. When claimants filed their "Compliance and
Manifestation," AIBC moved to strike out the complaint from the records for failure

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of claimants to submit a proper bill of particulars. While the POEA Administrator

denied the motion to strike out the complaint, he ordered the claimants "to correct
the deficiencies" pointed out by AIBC.
Before an intelligent answer could be filed in response to the complaint,
the records of employment of the more than 1,700 claimants had to be retrieved
from various countries in the Middle East. Some of the records dated as far back as
1975.
The hearings on the merits of the claims before the POEA Administrator
were interrupted several times by the various appeals, first to NLRC and then to the
Supreme Court.
Aside from the inclusion of additional claimants, two new cases were filed
against AIBC and BRII on October 10, 1985 (POEA Cases No. L-85-10-777 and L-8510-779). Another complaint was filed on May 29, 1986 (POEA Case No. L-86-05- 460).
NLRC, in exasperation, noted that the exact number of claimants had never been
completely established (Resolution, Sept. 2, 1991, G.R. No. 104776, Rollo, p. 57). All
the three new cases were consolidated with POEA Case No. L-84-06-555.
NLRC blamed the parties and their lawyers for the delay in terminating the
proceedings, thus:
"These cases could have been spared the long and arduous route
towards resolution had the parties and their counsel been more
interested in pursuing the truth and the merits of the claims rather
than exhibiting a fanatical reliance on technicalities. Parties and
counsel have made these cases a litigation of emotion. The
intransigence of parties and counsel is remarkable. As late as last
month, this Commission made a last and final attempt to bring the
counsel of all the parties (this Commission issued a special order
directing respondent Brown & Root's resident agent/s to appear) to
come to a more conciliatory stance. Even this failed" (Rollo, p. 58).
The squabble between the lawyers of claimants added to the delay in the
disposition of the cases, to the lament of NLRC, which complained:
"It is very evident from the records that the protagonists in
these consolidated cases appear to be not only the individual
complainants, on the one hand, and AIBC and Brown & Root, on
the other hand. The two lawyers for the complainants, Atty.
Gerardo Del Mundo and Atty. Florante De Castro, have yet to
settle the right of representation, each one persistently claiming to
appear in behalf of most of the complainants. As a result, there are
two appeals by the complainants. Attempts by this Commission to
resolve counsels' conflicting claims of their respective authority to
represent the complainants prove futile. The bickerings by these
two counsels are reflected in their pleadings. In the charges and

countercharges of falsification of documents and signatures, and

in the disbarment proceedings by one against the other. All these
have, to a large extent, abetted in confounding the issues raised in
these cases, jumble the presentation of evidence, and even
derailed the prospects of an amicable settlement. It would not be
far-fetched to imagine that both counsel, unwittingly, perhaps,
painted a rainbow for the complainants, with the proverbial pot of
gold at its end containing more than US$100 million, the aggregate
of the claims in these cases. It is, likewise, not improbable that their
misplaced zeal and exuberance caused them to throw all caution
to the wind in the matter of elementary rules of procedure and
evidence" (Rollo, pp. 58-59).
Adding to the confusion in the proceedings before NLRC, is the listing of
some of the complainants in both petitions filed by the two lawyers. As noted by
NLRC, "the problem created by this situation is that if one of the two petitions is
dismissed, then the parties and the public respondents would not know which claim
of which petitioner was dismissed and which was not."
B.Claimants insist that all their claims could properly be consolidated in a
"class suit" because "all the name complainants have similar money claims and
similar rights sought irrespective of whether they worked in Bahrain, United Arab
Emirates or in Abu Dhabi, Libya or in any part of the Middle East" (Rollo, pp. 35-38).
A class suit is proper where the subject matter of the controversy is one of
common or general interest to many and the parties are so numerous that it is
impracticable to bring them all before the court (Revised Rules of Court, Rule 3,
Sec. 12).
While all the claims are for benefits granted under the Bahrain Law, many
of the claimants worked outside Bahrain. Some of the claimants were deployed in
Indonesia and Malaysia under different terms and conditions of employment.
NLRC and the POEA Administrator are correct in their stance that
inasmuch as the first requirement of a class suit is not present (common or general
interest based on the Amiri Decree of the State of Bahrain), it is only logical that
only those who worked in Bahrain shall be entitled to file their claims in a class suit.
While there are common defendants (AIBC and BRII) and the nature of
the claims is the same (for employee's benefits), there is no common question of
law or fact. While some claims are based on the Amiri Law of Bahrain, many of the
claimants never worked in that country, but were deployed elsewhere. Thus, each
claimant is interested only in his own demand and not in the claims of the other
employees of defendants. The named claimants have a special or particular
interest in specific benefits completely different from the benefits in which the other
named claimants and those included as members of a "class" are claiming (Berses
v. Villanueva, 25 Phil. 473 [1913]). It appears that each claimant is only interested in
collecting his own claims. A claimants has no concern in protecting the interests of

227

the other claimants as shown by the fact, that hundreds of them have abandoned
their co-claimants and have entered into separate compromise settlements of their
respective claims. A principle basic to the concept of "class suit" is that plaintiffs
brought on the record must fairly represent and protect the interests of the others
(Dimayuga v. Court of Industrial Relations, 101 Phil. 590 [1957]). For this matter, the
claimants who worked in Bahrain can not be allowed to sue in a class suit in a
judicial proceeding. The most that can be accorded to them under the Rules of
Court is to be allowed to join as plaintiffs in one complaint (Revised Rules of Court,
Rule 3, Sec. 6).
The Court is extra-cautious in allowing class suits because they are the
exceptions to the condition sine qua non, requiring the joinder of all indispensable
parties.
In an improperly instituted class suit, there would be no problem if the
decision secured is favorable to the plaintiffs. The problem arises when the decision
is adverse to them, in which case the others who were impleaded by their selfappointed representatives, would surely claim denial of due process.
C.The claimants in G.R. No. 104776 also urged that the POEA Administrator
and NLRC should have declared Atty. Florante De Castro guilty of "forum shopping,
ambulance chasing activities, falsification, duplicity and other unprofessional
activities" and his appearances as counsel for some of the claimants as illegal
(Rollo, pp. 38-40).
The Anti-Forum shopping Rule (Revised Circular No. 28-91) is intended to
put a stop to the practice of some parties of filing multiple petitions and complaints
involving the same issues, with the result that the courts or agencies have to resolve
the same issues. Said Rule however, applies only to petitions filed with the Supreme
Court and the Court of Appeals. It is entitled "Additional Requirements For Petitions
Filed with the Supreme Court and the Court of Appeals To Prevent Forum Shopping
or Multiple Filing of Petitioners and Complainants." The first sentence of the circular
expressly states that said circular applies to an governs the filing of petitions in the
Supreme Court and the Court of Appeals.
While Administrative Circular No. 04-94 extended the application of the
anti-forum shopping rule to the lower courts and administrative agencies, said
circular took effect only on April 1, 1994.
POEA and NLRC could not have entertained the complaint for unethical
conduct against Atty. De Castro because NLRC and POEA have no jurisdiction to
investigate charges of unethical conduct of lawyers.

for legal services rendered in favor of the claimants (G.R. No. 104776, Rollo, pp. 838810; 1525).
A statement of a claim for a charging lien shall be filed with the court or
administrative agency which renders and executes the money judgment secured
by the lawyer for his clients. The lawyer shall cause written notice thereof to be
delivered to his clients and to the adverse party (Revised Rules of Court, Rule 138,
Sec. 37). The statement of the claim for the charging lien of Atty. Del Mundo should
have been filed with the administrative agency that rendered and executed the
judgment.
Contempt of Court
The complaint of Atty. Gerardo A. Del Mundo to cite Atty. Florante De
Castro and Atty. Katz Tierra for violation of the Code of Professional Responsibility
should be filed in a separate and appropriate proceeding.
G.R. No. 104911-14
Claimants charge NLRC with grave abuse of discretion in not accepting
their formula of "Three Hours Average Daily Overtime" in computing the overtime
payments. They claim that it was BRII itself which proposed the formula during the
negotiations for the settlement of their claims in Bahrain and therefore it is in
estoppel to disclaim said offer (Rollo, pp. 21-22).
Claimants presented a Memorandum of the Ministry of Labor of Bahrain
dated April 16, 1983, which in pertinent part states:
"After the perusal of the memorandum of the Vice President and
the Area Manager, Middle East, of Brown & Root Co. and the
Summary of the compensation offered by the Company to the
employees in respect of the difference of pay of the wages of the
overtime and the difference of vacation leave and the perusal of
the documents attached thereto e.e.., minutes of the meetings
between the Representative of the employees and the
management of the Company, the complaint filed by the
employees on 14/2/83 where they have claimed as hereinabove
stated, sample of the Service Contract executed between one of
the employees and the company through its agent in (sic)
Philippines, Asia International Builders Corporation where it has
been provided for 48 hours of work per week and annual leave of
12 days and an overtime wage of 1 & 1/4 of the normal hourly
wage.

Attorney's Lien
xxx xxx xxx
The "Notice and Claim to Enforce Attorney's Lien" dated December 14,
1992 was filed by Atty. Gerardo A. Del Mundo to protect his claim for attorney's fees

The Company in its computation reached the following averages:

228

A.1.The average duration of the actual service of the employee is

35 months for the Philippino (sic) employees . . . .
2.The average wage per hour for the Philippino (sic)
employee is US$2.69 . . . .
3.The average hours for the overtime is 3 hours plus in all
public holidays and weekends.
4.Payment of US$8.72 per months (sic) of service as
compensation for the difference of the wages of the overtime
done for each Philippino (sic) employee . . . (Rollo, p.22).
BRII and AIBC countered: (1) that the Memorandum was not prepared by
them but by a subordinate official in the Bahrain Department of Labor; (2) that
there was no showing that the Bahrain Minister of Labor had approved said
memorandum; and (3) that the offer was made in the course of the negotiation for
an amicable settlement of the claims and therefore it was not admissible in
evidence to prove that anything is due to the claimants.
While said document was presented to the POEA without observing the
rule on presenting official documents of a foreign government as provided
in Section 24, Rule 132 of the 1989 Revised Rules on Evidence, it can be admitted in
evidence in proceedings before an administrative body. The opposing parties have
a copy of the said memorandum, and they could easily verify its authenticity and
accuracy. LLjur
The admissibility of the offer of compromise made by BRII as contained in
the memorandum is another matter. Under Section 27, Rule 130 of the 1989 Revised
Rules on Evidence, an offer to settle a claim is not an admission that anything is
due.
Said Rule provides:
"Offer of compromise not admissible. In civil cases, an offer of
compromise is not an admission of any liability, and is not
admissible in evidence against the offeror."
This Rule is not only a rule of procedure to avoid the cluttering of the
record with unwanted evidence but a statement of public policy. There is great
public interest in having the protagonists settle their differences amicable before
those ripen into litigation. Every effort must be taken to encourage them to arrive at
a settlement. The submission of offers and counter-offers in the negotiation table is
a step in the right direction. But to bind a party to his offers, as what claimants
would make this Court do, would defeat the salutary purpose of the Rule.
G.R. Nos. 105029-32

A.NLRC applied the Amiri Decree No. 23 of 1976, which provides for
greater benefits than those stipulated in the overseas-employment contracts of the
claimants. It was of the belief that "where the laws of the host country are more
favorable and beneficial to the workers, then the laws of the host country shall form
part of the overseas employment contract." It quoted with approval the
observation of the POEA Administrator that ". . . in labor proceedings, all doubts in
the implementation of the provisions of the Labor Code and its implementing
regulations shall be resolved in favor of labor" (Rollo, pp. 90-94).
AIBC and BRII claim that NLRC acted capriciously and whimsically when it
refused to enforce the overseas-employment contracts, which became the law of
the parties. They contend that the principle that a law is deemed to be a part of a
contract applies only to provisions of Philippine law in relation to contracts
executed in the Philippines.
The overseas-employment contracts, which were prepared by AIBC and
BRII themselves, provided that the laws of the host country became applicable to
said contracts if they offer terms and conditions more favorable that those
stipulated therein. It was stipulated in said contracts that:
"The Employee agrees that while in the employ of the Employer, he
will not engage in any other business or occupation, nor seek
employment with anyone other than the Employer; that he shall
devote his entire time and attention and his best energies, and
abilities to the performance of such duties as may be assigned to
him by the Employer; that he shall at all times be subject to the
direction and control of the employer; and that the benefits
provided to Employee hereunder are substituted for and in lieu of
all other benefits provided by any applicable law, provided of
course, that total remuneration and benefits do not fall below that
of the host country regulation or custom, it being understood that
should applicable laws establish that fringe benefits, or other such
benefits additional to the compensation herein agreed cannot be
waived, Employee agrees that such compensation will be adjusted
downward so that the total compensation hereunder, plus the
non-waivable benefits shall be equivalent to the compensation
herein agreed" (Rollo, pp. 352-353).
The overseas-employment contracts could have been drafted more
felicitously. While a part thereof provides that the compensation to the employee
may be "adjusted downward so that the total computation (thereunder) plus the
non-waivable benefits shall be equivalent to the compensation" therein agreed,
another part of the same provision categorically states "that total remuneration
and benefits do not fall below that of the host country regulation and custom."
Any ambiguity in the overseas-employment contracts should be
interpreted against AIBC and BRII, the parties that drafted it (Eastern Shipping Lines,
Inc. v. Margarine-Verkaufs-Union, 93 SCRA 257 [1979]).

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Article 1377 of the Civil Code of the Philippines provides:

"The interpretation of obscure words or stipulations in a contract
shall not favor the party who caused the obscurity."
Said rule of interpretation is applicable to contracts of adhesion where
there is already a prepared form containing the stipulations of the employment
contract and the employees merely "take it or leave it." The presumption is that
there was an imposition by one party against the other and that the employees
signed the contracts out of necessity that reduced their bargaining power
(Fieldmen's Insurance Co., Inc. v. Songco, 25 SCRA 70 [1968]).
Applying the said legal precepts, we read the overseas-employment
contracts in question as adopting the provisions of the Amiri Decree No. 23 of 1976
as part and parcel thereof.
The parties to a contract may select the law by which it is to be governed
(Cheshire, Private International Law, 187 [7th ed]). In such a case, the foreign law is
adopted as a "system" to regulate the relations of the parties, including questions of
their capacity to enter into the contract, the formalities to be observed by them,
matters of performance, and so forth (16 Am Jur 2d, 150-161).
Instead of adopting the entire mass of the foreign law, the parties may just
agree that specific provisions of a foreign statute shall be deemed incorporated
into their contract "as a set of terms." By such reference to the provisions of the
foreign law, the contract does not become a foreign contract to be governed by
the foreign law. The said law does not operate as a statute but as a set of
contractual terms deemed written in the contract (Anton, Private International Law
197 [1967]; Dicey and Morris, The Conflict of Laws 702-703, [8th ed.]).
A basic policy of contract is to protect the expectation of the parties
(Reese, Choice of Law in Torts and Contracts, 16 Columbia Journal of Transnational
Law 1, 21 [1977]). Such party expectation is protected by giving effect to the
parties' own choice of the applicable law (Fricke v. Isbrandtsen Co. Inc., 151 F.
Supp. 465, 467 [1957]). The choice of law must, however, bear some relationship to
the parties or their transaction (Scoles and Hayes, conflict of Law 644-647 [1982]).
there is no question that the contracts sought to be enforced by claimants have a
direct connection with the Bahrain law because the services were rendered in that
country.

In Norse Management Co. (PTE) v. National Seamen Board, 117 SCRA 486
(1982), the "Employment Agreement," between Norse Management co. and the
late husband of the private respondent, expressly provided that in the event of
illness or injury to the employee arising out of and in the course of his employment
and not due to his own misconduct, "compensation shall be paid to employee in
accordance with and subject to the limitation of the Workmen's Compensation Act

of the Republic of the Philippines or the Worker's Insurance Act of registry of the
vessel, whichever is greater." Since the laws of Singapore, the place of registry of
the vessel in which the late husband of private respondent served at the time of his
death, granted a better compensation package, we applied said foreign law in
preference to the terms of the contract.
The case of Bagong Filipinas Overseas Corporation v. National Labor
Relations Commission, 135 SCRA 278 (1985), relied upon by AIBC and BRII is
inapposite to the facts of the cases at bench. The issue in that case was whether
the amount of the death compensation of a Filipino seaman should be determined
under the shipboard employment contract executed in the Philippines or the
Hongkong law. Holding that the shipboard employment contract was controlling,
the court differentiated said case from Norse Management Co. in that in the latter
case there was an express stipulation in the employment contract that the foreign
law would be applicable if it afforded greater compensation.
B.AIBC and BRII claim that they were denied by NLRC of their right to due
process when said administrative agency granted Friday-pay differential, holidaypay differential, annual-leave differential and leave indemnity pay to the claimants
listed in Annex B of the Resolution. At first, NLRC reversed the resolution of the POEA
Administrator granting these benefits on a finding that the POEA Administrator
failed to consider the evidence presented by AIBC and BRII, that some findings of
fact of the POEA Administrator were not supported by the evidence, and that
some of the evidence were not disclosed to AIBC and BRII (Rollo, pp. 35-36; 106107). But instead of remanding the case to the POEA Administrator for a new
hearing, which means further delay in the termination of the case, NLRC decided
to pass upon the validity of the claims itself. It is this procedure that AIBC and BRII
complain of as being irregular and a "reversible error."
They pointed out that NLRC took into consideration evidence submitted
on appeal, the same evidence which NLRC found to have been "unilaterally
submitted by the claimants and not disclosed to the adverse parties" (Rollo, pp. 3739).
NLRC noted that so many pieces of evidentiary matters were submitted to
the POEA administrator by the claimants after the cases were deemed submitted
for resolution and which were taken cognizance of by the POEA Administrator in
resolving the cases. While AIBC and BRII had no opportunity to refute said evidence
of the claimants before the POEA Administrator, they had all the opportunity to
rebut said evidence and to present their counter-evidence before NLRC. As a
matter of fact, AIBC and BRII themselves were able to present before NLRC
additional evidence which they failed to present before the POEA Administrator.
Under Article 221 of the Labor Code of the Philippines, NLRC is enjoined to
"use every and all reasonable means to ascertain the facts in each case speedily
and objectively and without regard to technicalities of law or procedure, all in the
interest of due process."

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In deciding to resolve the validity of certain claims on the basis of the

evidence of both parties submitted before the POEA Administrator and NLRC, the
latter considered that it was not expedient to remand the cases to the POEA
Administrator for that would only prolong the already protracted legal
controversies.
Even the Supreme Court has decided appealed cases on the merits
instead of remanding them to the trial court for the reception of evidence, where
the same can be readily determined from the uncontroverted facts on record
(Development Bank of the Philippines v. Intermediate Appellate Court, 190 SCRA
653 [1990]; Pagdonsalan v. National Labor Relations Commission, 127 SCRA 463
[1984]).
C.AIBC and BRII charge NLRC with grave abuse of discretion when it
ordered the POEA Administrator to hold new hearings for 683 claimants listed in
Annex D of the Resolution dated September 2, 1991 whose claims had been
denied by the POEA Administrator "for lack of proof" and for 69 claimants listed in
Annex E of the same Resolution, whose claims had been found by NLRC itself as not
"supported by evidence" (Rollo, pp. 41-45).
NLRC based its ruling on Article 218 (c) of the Labor Code of the
Philippines, which empowers it "[to] conduct investigation for the determination of
a question, matter or controversy, within its jurisdiction, . . . ."
It is the posture of AIBC and BRII that NLRC has no authority under Article
218(c) to remand a case involving claims which had already been dismissed
because such provision contemplates only situations where there is still a question
or controversy to be resolved (Rollo, pp. 41-42). Cdpr
A principle well embedded in Administrative Law is that the technical rules
of procedure and evidence do not apply to the proceedings conducted by
administrative agencies (First Asian Transport & Shipping Agency Inc v. Ople, 142
SCRA 542 [1986]; Asiaworld Publishing House, Inc. v. Ople, 152 SCRA 219 [1987]). This
principle is enshrined in Article 221 of the Labor Code of the Philippines and is now
the bedrock of proceedings before NLRC.
Notwithstanding the non-applicability of technical rules of procedure and
evidence in administrative proceedings, there are cardinal rules which must be
observed by the hearing officers in order to comply with the due process
requirements of the Constitution. These cardinal rules are collated inAng Tibay v.
Court of Industrial Relations, 69 Phil. 635 (1940).
The three petitions were filed under Rule 65 of the Revised Rules of Court
on the grounds that NLRC had committed grave abuse of discretion amounting to
lack of jurisdiction in issuing the questioned orders. We find no such abuse of
discretion.
WHEREFORE, all the three petitions are DISMISSED.

SO ORDERED.
Padilla, Davide, Jr., Bellosillo and Kapunan, JJ., concur.
FIRST DIVISION
[G.R. No. L-68470. October 8, 1985.]
5. ALICE REYES VAN DORN, petitioner, vs. HON. MANUEL V.
ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court
of the National Capital Region Pasay City, and RICHARD
UPTON, respondents.
DECISION
MELENCIO-HERRERA, J p:
In this Petition for Certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set
aside the Orders, dated September 15, 1983 and August 3, 1984, in Civil Case No. 1075P, issued by respondent Judge, which denied her Motion to Dismiss said case, and her
Motion for Reconsideration of the Dismissal Order, respectively.
The basic background facts are that petitioner is a citizen of the Philippines while private
respondent is a citizen of the United States; that they were married in Hongkong in 1972;
that, after the marriage, they established their residence in the Philippines; that they
begot two children born on April 4, 1973 and December 18, 1975, respectively; that the
parties were divorced in Nevada, United States, in 1982; and that petitioner has remarried also in Nevada, this time to Theodore Van Dorn.
Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No.
1075-P of the Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner's
business in Ermita, Manila, (the Galleon Shop, for short), is conjugal property of the
parties, and asking that petitioner be ordered to render an accounting of that business,
and that private respondent be declared with right to manage the conjugal property.
Petitioner moved to dismiss the case on the ground that the cause of action is barred by
previous judgment in the divorce proceedings before the Nevada Court wherein
respondent had acknowledged that he and petitioner had "no community property" as
of June 11, 1982. The Court below denied the Motion to Dismiss in the mentioned case
on the ground that the property involved is located in the Philippines so that the Divorce
Decree has no bearing in the case. The denial is now the subject of this Certiorari
proceeding.
Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not
subject to appeal. Certiorari and Prohibition are neither the remedies to question the
propriety of an interlocutory order of the trial Court. However, when a grave abuse of
discretion was patently committed, or the lower Court acted capriciously and
whimsically, then it devolves upon this Court in a certiorari proceeding to exercise its

231

supervisory authority and to correct the error committed which, in such a case, is
equivalent to lack of jurisdiction. 1 Prohibition would then lie since it would be useless
and a waste of time to go ahead with the proceedings. 2 We consider the petition filed
in this case within the exception, and we have given it due course.
For resolution is the effect of the foreign divorce on the parties and their alleged
conjugal property in the Philippines.
Petitioner contends that respondent is estopped from laying claim on the alleged
conjugal property because of the representation he made in the divorce proceedings
before the American Court that they had no community of property; that the Galleon
Shop was not established through conjugal funds; and that respondent's claim is barred
by prior judgment.
For his part, respondent avers that the Divorce Decree issued by the Nevada Court
cannot prevail over the prohibitive laws of the Philippines and its declared national
policy; that the acts and declaration of a foreign Court cannot, especially if the same is
contrary to public policy, divest Philippine Courts of jurisdiction to entertain matters
within its jurisdiction.
For the resolution of this case, it is not necessary to determine whether the property
relations between petitioner and private respondent, after their marriage, were upon
absolute or relative community property, upon complete separation of property, or
upon any other regime. The pivotal fact in this case is the Nevada divorce of the parties.
The Nevada District Court, which decreed the divorce, had obtained jurisdiction over
petitioner who appeared in person before the Court during the trial of the case. It also
obtained jurisdiction over private respondent who, giving his address as No. 381 Bush
Street, San Francisco, California, authorized his attorneys in the divorce case, Karp &
Gradt, Ltd., to agree to the divorce on the ground of incompatibility in the
understanding that there were neither community property nor community
obligations. 3 As explicitly stated in the Power of Attorney he executed in favor of the
law firm of KARP & GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in the
divorce proceedings:
xxx xxx xxx
"You are hereby authorized to accept service of Summons, to file
an Answer, appear on my behalf and do all things necessary and
proper to represent me, without further contesting, subject to the
following:
"1.That my spouse seeks a divorce on the ground of incompatibility.
"2.That there is no community of property to be adjudicated by the
Court.

"3.That there are no community obligations to be adjudicated by

the court.
xxx xxx xxx" 4
There can be no question as to the validity of that Nevada divorce in any of the States
of the United States. The decree is binding on private respondent as an American
citizen. For instance, private respondent cannot sue petitioner, as her husband, in any
State of the Union. What he is contending in this case is that the divorce is not valid and
binding in this jurisdiction, the same being contrary to local law and public policy.
It is true that owing to the nationality principle embodied in Article 15 of the Civil
Code, 5 only Philippine nationals are covered by the policy against absolute divorces
the same being considered contrary to our concept of public policy and morality.
However, aliens may obtain divorces abroad, which may be recognized in the
Philippines, provided they are valid according to their national law. 6 In this case, the
divorce in Nevada released private respondent from the marriage from the standards
of American law, under which divorce dissolves the marriage. As stated by the Federal
Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:
"The purpose and effect of a decree of divorce from the bond of
matrimony by a court of competent jurisdiction are to change the
existing status or domestic relation of husband and wife, and to
free them both from the bond. The marriage tie, when thus severed
as to one party, ceases to bind either. A husband without a wife, or
a wife without a husband, is unknown to the law. When the law
provides, in the nature of a penalty, that the guilty party shall not
marry again, that party, as well as the other, is still absolutely freed
from the bond of the former marriage."
Thus, pursuant to his national law, private respondent is no longer the husband of
petitioner. He would have no standing to sue in the case below as petitioner's husband
entitled to exercise control over conjugal assets. As he is bound by the Decision of his
own country's Court, which validly exercised jurisdiction over him, and whose decision
he does not repudiate, he is estopped by his own representation before said Court from
asserting his right over the alleged conjugal property. cdll
To maintain, as private respondent does, that, under our laws, petitioner has to be
considered still married to private respondent and still subject to a wife's obligations
under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be
obliged to live together with, observe respect and fidelity, and render support to private
respondent. The latter should not continue to be one of her heirs with possible rights to
conjugal property. She should not be discriminated against in her own country if the
ends of justice are to be served.
WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss
the Complaint filed in Civil Case No. 1075-P of his Court.

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Without costs.

spouses. The custody of the child was granted to petitioner. The records show that under
German law said court was locally and internationally competent for the divorce
proceeding and that the dissolution of said marriage was legally founded on and
authorized by the applicable law of that foreign jurisdiction. 4

SO ORDERED.
Teehankee (Chairman), Plana, Relova Gutierrez, Jr., De la Fuente and Patajo,
JJ., concur.
SECOND DIVISION
[G.R. No. 80116. June 30, 1989.]
6. IMELDA MANALAYSAY PILAPIL, petitioner, vs. HON. CORONA
IBAY-SOMERA, in her capacity as Presiding Judge of the Regional
Trial Court of Manila, Branch XXVI; HON. LUIS C. VICTOR, in his
capacity as the City Fiscal of Manila; and ERICH EKKEHARD
GEILING, respondents.
DECISION
REGALADO, J p:
An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute
divorce, only to be followed by a criminal infidelity suit of the latter against the former,
provides Us the opportunity to lay down a decisional rule on what hitherto appears to
be an unresolved jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and
private respondent Erich Ekkehard Geiling, a German national, were married before the
Registrar of Births, Marriages and Deaths at Friedensweiler in the Federal Republic of
Germany. The marriage started auspiciously enough, and the couple lived together for
some time in Malate, Manila where their only child, Isabella Pilapil Geiling, was born on
April 20, 1980. 1
Thereafter, marital discord set in, with mutual recriminations between the spouses,
followed by a separation de facto between them.
After about three and a half years of marriage, such connubial disharmony eventuated
in private respondent initiating a divorce proceeding against petitioner in Germany
before the Schoneberg Local Court in January, 1983. He claimed that there was failure
of their marriage and that they had been living apart since April, 1982. 2
Petitioner, on the other hand, filed an action for legal separation, support and
separation of property before the Regional Trial Court of Manila, Branch XXXII, on
January 23, 1983 where the same is still pending as Civil Case No. 83-15866. 3
On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of
Germany, promulgated a decree of divorce on the ground of failure of marriage of the

On June 27, 1986, or more than five months after the issuance of the divorce decree,
private respondent filed two complaints for adultery before the City Fiscal of Manila
alleging that, while still married to said respondent, petitioner "had an affair with a
certain William Chia as early as 1982 and with yet another man named Jesus Chua
sometime in 1983". Assistant Fiscal Jacinto A. de los Reyes, Jr., after the corresponding
investigation, recommended the dismissal of the cases on the ground of insufficiency of
evidence. 5 However, upon review, the respondent city fiscal approved a resolution,
dated January 8, 1986, directing the filing of two complaints for adultery against the
petitioner. 6 The complaints were accordingly filed and were eventually raffled to two
branches of the Regional Trial Court of Manila. The case entitled "People of the
Philippines vs. Imelda Pilapil and William Chia", docketed as Criminal Case No. 87-52435,
was assigned to Branch XXVI presided by the respondent judge; while the other case,
"People of the Philippines vs. Imelda Pilapil and James Chua", docketed as Criminal
Case No. 87-52434 went to the sala of Judge Leonardo Cruz, Branch XXV, of the same
court. 7
On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that
the aforesaid resolution of respondent fiscal be set aside and the cases against her be
dismissed. 8 A similar petition was filed by James Chua, her co-accused in Criminal Case
No. 87-52434. The Secretary of Justice, through the Chief State Prosecutor, gave due
course to both petitions and directed the respondent city fiscal to inform the
Department of Justice "if the accused have already been arraigned and if not yet
arraigned, to move to defer further proceedings" and to elevate the entire records of
both cases to his office for review. 9
Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and
to suspend further proceedings thereon. 10 As a consequence, Judge Leonardo Cruz
suspended proceedings in Criminal Case No. 87-52434. On the other hand, respondent
judge merely reset the date of the arraignment in Criminal Case No. 87-52435 to April 6,
1987. Before such scheduled date, petitioner moved for the cancellation of the
arraignment and for the suspension of proceedings in said Criminal Case No. 87-52435
until after the resolution of the petition for review then pending before the Secretary of
Justice. 11 A motion to quash was also filed in the same case on the ground of lack of
jurisdiction, 12 which motion was denied by the respondent judge in an order dated
September 8, 1987. The same order also directed the arraignment of both accused
therein, that is, petitioner and William Chia. The latter entered a plea of not guilty while
the petitioner refused to be arraigned. Such refusal of the petitioner being considered
by respondent judge as direct contempt, she and her counsel were fined and the
former was ordered detained until she submitted herself for arraignment. 13 Later,
private respondent entered a plea of not guilty. 14
On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition,
with a prayer for a temporary restraining order, seeking the annulment of the order of
the lower court denying her motion to quash. The petition is anchored on the main

233

ground that the court is without jurisdiction "to try and decide the charge of adultery,
which is a private offense that cannot be prosecuted de officio (sic), since the
purported complainant, a foreigner, does not qualify as an offended spouse having
obtained a final divorce decree under his national law prior to his filing the criminal
complaint." 15
On October 21, 1987, this Court issued a temporary restraining order enjoining the
respondents from implementing the aforesaid order of September 8, 1987 and from
further proceeding with Criminal Case No. 87-52435. Subsequently, on March 23, 1988
Secretary of Justice Sedfrey A. Ordoez acted on the aforesaid petitions for review and,
upholding petitioner's ratiocinations, issued a resolution directing the respondent city
fiscal to move for the dismissal of the complaints against the petitioner. 16
We find this petition meritorious. The writs prayed for shall accordingly issue. LexLib
Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four
other crimes against chastity, cannot be prosecuted except upon a sworn written
complaint filed by the offended spouse. It has long since been established, with
unwavering consistency, that compliance with this rule is a jurisdictional, and not merely
a formal, requirement. 18 While in point of strict law the jurisdiction of the court over the
offense is vested in it by the Judiciary Law, the requirement for a sworn written
complaint is just as jurisdictional a mandate since it is that complaint which starts the
prosecutory proceeding 19 and without which the court cannot exercise its jurisdiction
to try the case.
Now, the law specifically provides that in prosecutions for adultery and concubinage
the person who can legally file the complaint should be the offended spouse, and
nobody else. Unlike the offenses of seduction, abduction, rape and acts of
lasciviousness, no provision is made for the prosecution of the crimes of adultery and
concubinage by the parents, grandparents or guardian of the offended party. The socalled exclusive and successive rule in the prosecution of the first four offenses above
mentioned do not apply to adultery and concubinage. It is significant that while the
State, as parens partriae,was added and vested by the 1985 Rules of Criminal
Procedure with the power to initiate the criminal action for a deceased or
incapacitated victim in the aforesaid offenses of seduction, abduction, rape and acts
of lasciviousness, in default of her parents, grandparents or guardian, such amendment
did not include the crimes of adultery and concubinage. In other words, only the
offended spouse, and no other, is authorized by law to initiate the action therefor.
Corollary to such exclusive grant of power to the offended spouse to institute the action,
it necessarily follows that such initiator must have the status, capacity or legal
representation to do so at the time of the filing of the criminal action. This is a familiar
and express rule in civil actions; in fact, lack of legal capacity to sue, as a ground for a
motion to dismiss in civil cases, is determined as of the filing of the complaint or petition.
The absence of an equivalent explicit rule in the prosecution of criminal cases does not
mean that the same requirement and rationale would not apply. Understandably, it
may not have been found necessary since criminal actions are generally and

fundamentally commenced by the State, through the People of the Philippines, the
offended party being merely the complaining witness therein. However, in the so-called
"private crimes", or those which cannot be prosecuted de oficio, and the present
prosecution for adultery is of such genre, the offended spouse assumes a more
predominant role since the right to commence the action, or to refrain therefrom, is a
matter exclusively within his power and option.
This policy was adopted out of consideration for the aggrieved party who might prefer
to suffer the outrage in silence rather than go through the scandal of a public
trial. 20 Hence, as cogently argued by petitioner, Article 344 of the Revised Penal Code
thus presupposes that the marital relationship is still subsisting at the time of the institution
of the criminal action for adultery. This is a logical consequence since the raison
d'etre of said provision of law would be absent where the supposed offended party had
ceased to be the spouse of the alleged offender at the time of the filing of the criminal
case. 21
In these cases, therefore, it is indispensable that the status and capacity of the
complainant to commence the action be definitely established and, as already
demonstrated, such status or capacity must indubitably exist as of the time he initiates
the action. It would be absurd if his capacity to bring the action would be determined
by his status before or subsequent to the commencement thereof, where such capacity
or status existed prior to but ceased before, or was acquired subsequent to but did not
exist at the time of, the institution of the case. We would thereby have the anomalous
spectacle of a party bringing suit at the very time when he is without the legal capacity
to do so.
To repeat, there does not appear to be any local precedential jurisprudence on the
specific issue as to when precisely the status of a complainant as an offended spouse
must exist where a criminal prosecution can be commenced only by one who in law
can be categorized as possessed of such status. Stated differently and with reference to
the present case, the inquiry would be whether it is necessary in the commencement of
a criminal action for adultery that the marital bonds between the complainant and the
accused be unsevered and existing at the time of the institution of the action by the
former against the latter. cdphil
American jurisprudence, on cases involving statutes in that jurisdiction which are in pari
materia with ours, yields the rule that after a divorce has been decreed, the innocent
spouse no longer has the right to institute proceedings against the offenders where the
statute provides that the innocent spouse shall have the exclusive right to institute a
prosecution for adultery. Where, however, proceedings have been properly
commenced, a divorce subsequently granted can have no legal effect on the
prosecution of the criminal proceedings to a conclusion. 22
In the cited Loftus case, the Supreme Court of Iowa held that
" 'No prosecution for adultery can be commenced except on the
complaint of the husband or wife.' Section 4932, Code. Though
Loftus was husband of defendant when the offense is said to have

234

been committed, he had ceased to be such when the prosecution

was begun; and appellant insists that his status was not such as to
entitle him to make the complaint. We have repeatedly said that
the offense is against the unoffending spouse, as well as the state,
in explaining the reason for this provision in the statute; and we are
of the opinion that the unoffending spouse must be such when the
prosecution is commenced." (Emphasis supplied.)
We see no reason why the same doctrinal rule should not apply in this case and in our
jurisdiction, considering our statutory law and jural policy on the matter. We are
convinced that in cases of such nature, the status of the complainant vis-a-vis the
accused must be determined as of the time the complaint was filed. Thus, the person
who initiates the adultery case must be an offended spouse, and by this is meant that
he is still married to the accused spouse, at the time of the filing of the complaint.
In the present case, the fact that private respondent obtained a valid divorce in his
country, the Federal Republic of Germany, is admitted. Said divorce and its legal effects
may be recognized in the Philippines insofar as private respondent is concerned 23 in
view of the nationality principle in our civil law on the matter of status of persons.
Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was
granted by a United States court between Alice Van Dorn, a Filipina, and her American
husband, the latter filed a civil case in a trial court here alleging that her business
concern was conjugal property and praying that she be ordered to render an
accounting and that the plaintiff be granted the right to manage the business.
Rejecting his pretensions, this Court perspicuously demonstrated the error of such
stance, thus:
"There can be no question as to the validity of that Nevada divorce
in any of the States of the United States. The decree is binding on
private respondent as an American citizen. For instance, private
respondent cannot sue petitioner, as her husband, in any State of
the Union . . .
"It is true that owing to the nationality principle embodied in Article
15 of the Civil Code, only Philippine nationals are covered by the
policy against absolute divorces the same being considered
contrary to our concept of public policy and morality. However,
aliens may obtain divorces abroad, which may be recognized in
the Philippines, provided they are valid according to their national
law . . .
"Thus, pursuant to his national law, private respondent is no longer
the husband of petitioner. He would have no standing to sue in the
case below as petitioner's husband entitled to exercise control over
conjugal assets . . ." 25

Under the same considerations and rationale, private respondent, being no longer
the husband of petitioner, had no legal standing to commence the adultery case
under the imposture that he was the offended spouse at the time he filed suit.
The allegation of private respondent that he could not have brought this case before
the decree of divorce for lack of knowledge, even if true, is of no legal significance or
consequence in this case. When said respondent initiated the divorce proceeding, he
obviously knew that there would no longer be a family nor marriage vows to protect
once a dissolution of the marriage is decreed. Neither would there be a danger of
introducing spurious heirs into the family, which is said to be one of the reasons for the
particular formulation of our law on adultery, 26 since there would thenceforth be no
spousal relationship to speak of. The severance of the marital bond had the effect of
dissociating the former spouses from each other, hence the actuations of one would
not affect or cast obloquy on the other.
The aforecited case of United States vs. Mata cannot be successfully relied upon by
private respondent. In applying Article 433 of the old Penal Code, substantially the same
as Article 333 of the Revised Penal Code, which punished adultery "although the
marriage be afterwards declared void", the Court merely stated that "the lawmakers
intended to declare adulterous the infidelity of a married woman to her marital vows,
even though it should be made to appear that she is entitled to have her marriage
contract declared null and void, until and unless she actually secures a formal judicial
declaration to that effect". Definitely, it cannot be logically inferred therefrom that the
complaint can still be filed after the declaration of nullity because such declaration that
the marriage is void ab initio is equivalent to stating that it never existed. There being no
marriage from the beginning, any complaint for adultery filed after said declaration of
nullity would no longer have a leg to stand on. Moreover, what was consequently
contemplated and within the purview of the decision in said case is the situation where
the criminal action for adultery was filed before the termination of the marriage by a
judicial declaration of its nullity ab initio. The same rule and requisite would necessarily
apply where the termination of the marriage was effected, as in this case, by a valid
foreign divorce.
Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, herein before
cited, 27 must suffer the same fate of inapplicability. A cursory reading of said case
reveals that the offended spouse therein had duly and seasonably filed a complaint for
adultery, although an issue was raised as to its sufficiency but which was resolved in
favor of the complainant. Said case did not involve a factual situation akin to the one
at bar or any issue determinative of the controversy herein.
WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and
another one entered DISMISSING the complaint in Criminal Case No. 87-52435 for lack of
jurisdiction. The temporary restraining order issued in this case on October 21, 1987 is
hereby made permanent.
SO ORDERED.
Melencio-Herrera, Padilla and Sarmiento, JJ ., concur.

235

FIRST DIVISION
[G.R. No. 124371. November 23, 2000.]
7. PAULA T. LLORENTE, petitioner, vs. COURT OF APPEALS and ALICIA
F. LLORENTE, respondents.
E.A. Dacanay for petitioner.
Pardalis, Navarro & Sales for private respondents.
DECISION

On December 4, 1945, Paula gave birth to a boy registered in the Office of the Registrar
of Nabua as "Crisologo Llorente," with the certificate stating that the child was not
legitimate and the line for the father's name was left blank. 9
Lorenzo refused to forgive Paula and live with her. In fact, on February 2, 1946, the
couple drew a written agreement to the effect that (1) all the family allowances
allotted by the United States Navy as part of Lorenzo's salary and all other obligations for
Paula's daily maintenance and support would be suspended; (2) they would dissolve
their marital union in accordance with judicial proceedings; (3) they would make a
separate agreement regarding their conjugal property acquired during their marital life;
and (4) Lorenzo would not prosecute Paula for her adulterous act since she voluntarily
admitted her fault and agreed to separate from Lorenzo peacefully. The agreement
was signed by both Lorenzo and Paula and was witnessed by Paula's father and
stepmother. The agreement was notarized by Notary Public Pedro Osabel. 10

PARDO, J p:
The Case
The case raises a conflict of laws issue.
What is before us is an appeal from the decision of the Court of Appeals 1 modifying
that of the Regional Trial Court, Camarines Sur, Branch 35, Iriga City2 declaring
respondent Alicia F. Llorente (hereinafter referred to as "Alicia"), as co-owners of
whatever property she and the deceased Lorenzo N. Llorente (hereinafter referred to as
"Lorenzo") may have acquired during the twenty-five (25) years that they lived together
as husband and wife.
The Facts
The deceased Lorenzo N. Llorente was an enlisted serviceman of the United States Navy
from March 10, 1927 to September 30, 1957. 3
On February 22, 1937, Lorenzo and petitioner Paula Llorente (hereinafter referred to as
"Paula") were married before a parish priest, Roman Catholic Church, in Nabua,
Camarines Sur. 4
Before the outbreak of the Pacific War, Lorenzo departed for the United States and
Paula stayed in the conjugal home in barrio Antipolo, Nabua, Camarines Sur. 5
On November 30, 1943, Lorenzo was admitted to United States citizenship and
Certificate of Naturalization No. 5579816 was issued in his favor by the United States
District Court, Southern District of New York. 6
Upon the liberation of the Philippines by the American Forces in 1945, Lorenzo was
granted an accrued leave by the U.S. Navy, to visit his wife and he visited the
Philippines. 7 He discovered that his wife Paula was pregnant and was "living in" and
having an adulterous relationship with his brother, Ceferino Llorente. 8

Lorenzo returned to the United States and on November 16, 1951 filed for divorce with
the Superior Court of the State of California in and for the County of San Diego. Paula
was represented by counsel, John Riley, and actively participated in the proceedings.
On November 27, 1951, the Superior Court of the State of California, for the County of
San Diego found all factual allegations to be true and issued an interlocutory judgment
of divorce. 11
On December 4, 1952, the divorce decree became final. 12
In the meantime, Lorenzo returned to the Philippines. CADHcI
On January 16, 1958, Lorenzo married Alicia F. Llorente in Manila. 13 Apparently, Alicia
had no knowledge of the first marriage even if they resided in the same town as Paula,
who did not oppose the marriage or cohabitation. 14
From 1958 to 1985, Lorenzo and Alicia lived together as husband and wife. 15 Their
twenty-five (25) year union produced three children, Raul, Luz and Beverly, all surnamed
Llorente. 16
On March 13, 1981, Lorenzo executed a Last Will and Testament. The will was notarized
by Notary Public Salvador M. Occiano, duly signed by Lorenzo with attesting witnesses
Francisco Hugo, Francisco Neibres and Tito Trajano. In the will, Lorenzo bequeathed all
his property to Alicia and their three children, to wit:
"(1)I give and bequeath to my wife ALICIA R. FORTUNO exclusively
my residential house and lot, located at San Francisco, Nabua,
Camarines Sur, Philippines, including ALL the personal properties
and other movables or belongings that may be found or existing
therein;
"(2)I give and bequeath exclusively to my wife Alicia R. Fortuno and
to my children, Raul F. Llorente, Luz F. Llorente and Beverly F.
Llorente, in equal shares, all my real properties whatsoever and

236

wheresoever located, specifically my real properties located at

Barangay Aro-Aldao, Nabua, Camarines Sur; Barangay Paloyon,
Nabua, Camarines Sur; Barangay Baras, Sitio Puga, Nabua,
Camarines Sur; and Barangay Paloyon, Sitio Nalilidong, Nabua,
Camarines Sur;
"(3)I likewise give and bequeath exclusively unto my wife Alicia R.
Fortuno and unto my children, Raul F. Llorente, Luz F. Llorente and
Beverly F. Llorente, in equal shares, my real properties located in
Quezon City Philippines, and covered by Transfer Certificate of Title
No. 188652; and my lands in Antipolo, Rizal, Philippines, covered by
Transfer Certificate of Title Nos. 124196 and 165188, both of the
Registry of Deeds of the province of Rizal, Philippines;
"(4)That their respective shares in the above-mentioned properties,
whether real or personal properties, shall not be disposed of,
ceded, sold and conveyed to any other persons, but could only be
sold, ceded, conveyed and disposed of by and among
themselves;
"(5)I designate my wife ALICIA R. FORTUNO to be the sole executor
of this my Last Will and Testament, and in her default or incapacity
of the latter to act, any of my children in the order of age, if of
age;
"(6)I hereby direct that the executor named herein or her lawful
substitute should served (sic) without bond;
"(7)I hereby revoke any and all my other wills, codicils, or
testamentary dispositions heretofore executed, signed, or
published, by me;
"(8)It is my final wish and desire that if I die, no relatives of mine in
any degree in the Llorente's Side should ever bother and disturb in
any manner whatsoever my wife Alicia R. Fortunato and my
children with respect to any real or personal properties I gave and
bequeathed respectively to each one of them by virtue of this Last
Will and Testament." 17
On December 14, 1983, Lorenzo filed with the Regional Trial Court, Iriga, Camarines Sur,
a petition for the probate and allowance of his last will and testament wherein Lorenzo
moved that Alicia be appointed Special Administratrix of his estate. 18
On January 18, 1984, the trial court denied the motion for the reason that the testator
Lorenzo was still alive. 19
On January 24, 1984, finding that the will was duly executed, the trial court admitted the
will to probate. 20

On June 11, 1985, before the proceedings could be terminated, Lorenzo died. 21
On September 4, 1985, Paula filed with the same court a petition 22 for letters of
administration over Lorenzo's estate in her favor. Paula contended (1) that she was
Lorenzo's surviving spouse, (2) that the various property were acquired during their
marriage, (3) that Lorenzo's will disposed of all his property in favor of Alicia and her
children, encroaching on her legitime and 1/2 share in the conjugal property. 23
On December 13, 1985, Alicia filed in the testate proceeding (Sp. Proc. No. IR-755), a
petition for the issuance of letters testamentary. 24
On October 14, 1985, without terminating the testate proceedings, the trial court gave
due course to Paula's petition in Sp. Proc. No. IR-888. 25
On November 6, 13 and 20, 1985, the order was published in the newspaper "Bicol
Star". 26
On May 18, 1987, the Regional Trial Court issued a joint decision, thus: ISaCTE
"Wherefore, considering that this court has so found that the
divorce decree granted to the late Lorenzo Llorente is void and
inapplicable in the Philippines, therefore the marriage he
contracted with Alicia Fortunato on January 16, 1958 at Manila is
likewise void. This being so the petition of Alicia F. Llorente for the
issuance of letters testamentary is denied. Likewise, she is not
entitled to receive any share from the estate even if the will
especially said so her relationship with Lorenzo having gained the
status of paramour which is under Art. 739 (1).
"On the other hand, the court finds the petition of Paula Titular
Llorente, meritorious, and so declares the intrinsic disposition of the
will of Lorenzo Llorente dated March 13, 1981 as void and declares
her entitled as conjugal partner and entitled to one-half of their
conjugal properties, and as primary compulsory heir, Paula T.
Llorente is also entitled to one-third of the estate and then onethird should go to the illegitimate children, Raul, Luz and Beverly, all
surname (sic) Llorente, for them to partition in equal shares and
also entitled to the remaining free portion in equal shares.
"Petitioner, Paula Llorente is appointed legal administrator of the
estate of the deceased, Lorenzo Llorente. As such let the
corresponding letters of administration issue in her favor upon her
filing a bond in the amount (sic) of P100,000.00 conditioned for her
to make a return to the court within three (3) months a true and
complete inventory of all goods, chattels, rights, and credits, and
estate which shall at any time come to her possession or to the
possession of any other person for her, and from the proceeds to
pay and discharge all debts, legacies and charges on the same,

237

or such dividends thereon as shall be decreed or required by this

court; to render a true and just account of her administration to the
court within one (1) year, and at any other time when required by
the court and to perform all orders of this court by her to be
performed.
"On the other matters prayed for in respective petitions for want of
evidence could not be granted.
"SO ORDERED." 27

We do not agree with the decision of the Court of Appeals. We remand the case to the
trial court for ruling on the intrinsic validity of the will of the deceased.
The Applicable Law
The fact that the late Lorenzo N. Llorente became an American citizen long before and
at the time of: (1) his divorce from Paula; (2) marriage to Alicia; (3) execution of his will;
and (4) death, is duly established, admitted and undisputed.
Thus, as a rule, issues arising from these incidents are necessarily governed by foreign
law.

In time, Alicia filed with the trial court a motion for reconsideration of the aforequoted
decision. 28
On September 14, 1987, the trial court denied Alicia's motion for reconsideration but
modified its earlier decision, stating that Raul and Luz Llorente are not children
"legitimate or otherwise" of Lorenzo since they were not legally adopted by
him. 29 Amending its decision of May 18, 1987, the trial court declared Beverly Llorente
as the only illegitimate child of Lorenzo, entitling her to one-third (1/3) of the estate and
one-third (1/3) of the free portion of the estate. 30
On September 28, 1987, respondent appealed to the Court of Appeals. 31
On July 31, 1995, the Court of Appeals promulgated its decision, affirming with
modification the decision of the trial court in this wise:
"WHEREFORE, the decision appealed from is hereby AFFIRMED with
the MODIFICATION that Alicia is declared as co-owner of whatever
properties she and the deceased may have acquired during the
twenty-five (25) years of cohabitation.
"SO ORDERED." 32
On August 25, 1995, petitioner filed with the Court of Appeals a motion for
reconsideration of the decision. 33
On March 21, 1996, the Court of Appeals, 34 denied the motion for lack of merit.
Hence, this petition. 35
The Issue
Stripping the petition of its legalese and sorting through the various arguments
raised, 36 the issue is simple. Who are entitled to inherit from the late Lorenzo N.
Llorente?

The Civil Code clearly provides:

"ARTICLE 15.Laws relating to family rights and duties, or to the
status, condition and legal capacity of persons are binding upon
citizens of the Philippines, even though living abroad. SCcHIE
"ARTICLE 16.Real property as well as personal property is subject to
the law of the country where it is situated.
"However, intestate and testamentary succession, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration,whatever may be the
nature of the property and regardless of the country wherein said
property may be found." (italics ours)
True, foreign laws do not prove themselves in our jurisdiction and our courts are not
authorized to take judicial notice of them. Like any other fact, they must be alleged and
proved. 37
While the substance of the foreign law was pleaded, the Court of Appeals did not
admit the foreign law. The Court of Appeals and the trial court called to the fore
the renvoi doctrine, where the case was "referred back" to the law of the decedent's
domicile, in this case, Philippine law.
We note that while the trial court stated that the law of New York was not sufficiently
proven, in the same breath it made the categorical, albeit equally unproven statement
that "American law" follows the 'domiciliary theory' hence, Philippine law applies when
determining the validity of Lorenzo's will. 38
First, there is no such thing as one American law. The "national law" indicated in Article
16 of the Civil Code cannot possibly apply to general American law. There is no such
law governing the validity of testamentary provisions in the United States. Each State of
the union has its own law applicable to its citizens and in force only within the State. It

238

can therefore refer to no other than the law of the State of which the decedent was a
resident. 39 Second,there is no showing that the application of the renvoi doctrine is
called for or required by New York State law.
The trial court held that the will was intrinsically invalid since it contained dispositions in
favor of Alice, who in the trial court's opinion was a mereparamour. The trial court threw
the will out, leaving Alice, and her two children, Raul and Luz, with nothing.
The Court of Appeals also disregarded the will. It declared Alice entitled to one half
(1/2) of whatever property she and Lorenzo acquired during their cohabitation,
applying Article 144 of the Civil Code of the Philippines.
The hasty application of Philippine law and the complete disregard of the will, already
probated as duly executed in accordance with the formalities of Philippine law, is
fatal, especially in light of the factual and legal circumstances here obtaining.
Validity of the Foreign Divorce
In Van Dorn v. Romillo, Jr. 40 we held that owing to the nationality principle embodied in
Article 15 of the Civil Code, only Philippine nationals are covered by the policy against
absolute divorces, the same being considered contrary to our concept of public policy
and morality. In the same case, the Court ruled that aliens may obtain divorces abroad,
provided they are valid according to their national law.
Citing this landmark case, the Court held in Quita v. Court of Appeals, 41 that once
proven that respondent was no longer a Filipino citizen when he obtained the divorce
from petitioner, the ruling in Van Dorn would become applicable and petitioner could
"very well lose her right to inherit" from him.
In Pilapil v. Ibay-Somera, 42 we recognized the divorce obtained by the respondent in
his country, the Federal Republic of Germany. There, we stated that divorce and its
legal effects may be recognized in the Philippines insofar as respondent is concerned in
view of the nationality principle in our civil law on the status of persons.
For failing to apply these doctrines, the decision of the Court of Appeals must be
reversed. 43 We hold that the divorce obtained by Lorenzo H. Llorente from his first wife
Paula was valid and recognized in this jurisdiction as a matter of comity. Now, the
effects of this divorce (as to the succession to the estate of the decedent) are matters
best left to the determination of the trial court.
Validity of the Will
The Civil Code provides:
"ARTICLE 17.The forms and solemnities of contracts, wills, and other
public instruments shall be governed by the laws of the country in
which they are executed.

"When the acts referred to are executed before the diplomatic or

consular officials of the Republic of the Philippines in a foreign
country, the solemnities established by Philippine laws shall be
observed in their execution." (italics ours)
The clear intent of Lorenzo to bequeath his property to his second wife and children by
her is glaringly shown in the will he executed. We do not wish to frustrate his wishes, since
he was a foreigner, not covered by our laws on "family rights and duties, status,
condition and legal capacity." 44
Whether the will is intrinsically valid and who shall inherit from Lorenzo are issues best
proved by foreign law which must be pleaded and proved. Whether the will was
executed in accordance with the formalities required is answered by referring to
Philippine law. In fact, the will was duly probated.HAICcD
As a guide however, the trial court should note that whatever public policy or good
customs may be involved in our system of legitimes, Congress did not intend to extend
the same to the succession of foreign nationals. Congress specifically left the amount of
successional rights to the decedent's national law. 45
Having thus ruled, we find it unnecessary to pass upon the other issues raised.
The Fallo
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals in CA-G. R.
SP No. 17446 promulgated on July 31, 1995 is SET ASIDE.
In lieu thereof, the Court REVERSES the decision of the Regional Trial Court and
RECOGNIZES as VALID the decree of divorce granted in favor of the deceased Lorenzo
N. Llorente by the Superior Court of the State of California in and for the County of San
Diego, made final on December 4, 1952.
Further, the Court REMANDS the cases to the court of origin for determination of the
intrinsic validity of Lorenzo N. Llorente's will and determination of the parties'
successional rights allowing proof of foreign law with instructions that the trial court shall
proceed with all deliberate dispatch to settle the estate of the deceased within the
framework of the Rules of Court.
No costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Kapunan, and Ynares-Santiago, JJ., concur.
FIRST DIVISION
[G.R. No. 154380. October 5, 2005.]

239

8. REPUBLIC OF THE PHILIPPINES, petitioner, vs. CIPRIANO ORBECIDO

III, respondent.
DECISION
QUISUMBING, J p:
Given a valid marriage between two Filipino citizens, where one party is later
naturalized as a foreign citizen and obtains a valid divorce decree capacitating him or
her to remarry, can the Filipino spouse likewise remarry under Philippine law?
Before us is a case of first impression that behooves the Court to make a definite ruling
on this apparently novel question, presented as a pure question of law.
In this petition for review, the Solicitor General assails the Decision 1 dated May 15, 2002,
of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23 and
its Resolution 2 dated July 4, 2002 denying the motion for reconsideration. The court a
quo had declared that herein respondent Cipriano Orbecido III is capacitated to
remarry. The fallo of the impugned Decision reads:
WHEREFORE, by virtue of the provision of the second paragraph of
Art. 26 of the Family Code and by reason of the divorce decree
obtained against him by his American wife, the petitioner is given
the capacity to remarry under the Philippine Law.
IT IS SO ORDERED. 3
The factual antecedents, as narrated by the trial court, are as follows.
On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United
Church of Christ in the Philippines in Lam-an, Ozamis City. Their marriage was blessed
with a son and a daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly V.
Orbecido.
In 1986, Cipriano's wife left for the United States bringing along their son Kristoffer. A few
years later, Cipriano discovered that his wife had been naturalized as an American
citizen.
Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce
decree and then married a certain Innocent Stanley. She, Stanley and her child by him
currently live at 5566 A. Walnut Grove Avenue, San Gabriel, California.
Cipriano thereafter filed with the trial court a petition for authority to remarry invoking
Paragraph 2 of Article 26 of the Family Code. No opposition was filed. Finding merit in
the petition, the court granted the same. The Republic, herein petitioner, through the
Office of the Solicitor General (OSG), sought reconsideration but it was denied.

In this petition, the OSG raises a pure question of law:

WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26
OF THE FAMILY CODE 4
The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to
the instant case because it only applies to a valid mixed marriage; that is, a marriage
celebrated between a Filipino citizen and an alien. The proper remedy, according to
the OSG, is to file a petition for annulment or for legal separation. 5 Furthermore, the
OSG argues there is no law that governs respondent's situation. The OSG posits that this is
a matter of legislation and not of judicial determination. 6
For his part, respondent admits that Article 26 is not directly applicable to his case but
insists that when his naturalized alien wife obtained a divorce decree which
capacitated her to remarry, he is likewise capacitated by operation of law pursuant to
Section 12, Article II of the Constitution. 7
At the outset, we note that the petition for authority to remarry filed before the trial
court actually constituted a petition for declaratory relief. In this connection, Section 1,
Rule 63 of the Rules of Court provides:
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES
Section 1.Who may file petition Any person interested under a
deed, will, contract or other written instrument, or whose rights are
affected by a statute, executive order or regulation, ordinance, or
other governmental regulation may, before breach or violation
thereof, bring an action in the appropriate Regional Trial Court to
determine any question of construction or validity arising, and for a
declaration of his rights or duties, thereunder.
xxx xxx xxx
The requisites of a petition for declaratory relief are: (1) there must be a justiciable
controversy; (2) the controversy must be between persons whose interests are adverse;
(3) that the party seeking the relief has a legal interest in the controversy; and (4) that
the issue is ripe for judicial determination.8
This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between
two Filipino citizens where one later acquired alien citizenship, obtained a divorce
decree, and remarried while in the U.S.A. The interests of the parties are also adverse, as
petitioner representing the State asserts its duty to protect the institution of marriage
while respondent, a private citizen, insists on a declaration of his capacity to remarry.
Respondent, praying for relief, has legal interest in the controversy. The issue raised is
also ripe for judicial determination inasmuch as when respondent remarries, litigation
ensues and puts into question the validity of his second marriage.

240

Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code
apply to the case of respondent? Necessarily, we must dwell on how this provision had
come about in the first place, and what was the intent of the legislators in its
enactment?
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209,
otherwise known as the "Family Code," which took effect on August 3, 1988. Article 26
thereof states:

while the spouses of foreigners who validly divorce them

abroad can.
2.This is the beginning of the recognition of the validity of divorce
even for Filipino citizens. For those whose foreign spouses
validly divorce them abroad will also be considered to be
validly divorced here and can re-marry. We propose that
this be deleted and made into law only after more
widespread consultation. (Emphasis supplied.)
Legislative Intent

All marriages solemnized outside the Philippines in accordance

with the laws in force in the country where they were solemnized,
and valid there as such, shall also be valid in this country, except
those prohibited under Articles 35, 37, and 38.
On July 17, 1987, shortly after the signing of the original Family Code, Executive Order
No. 227 was likewise signed into law, amending Articles 26, 36, and 39 of the Family
Code. A second paragraph was added to Article 26. As so amended, it now provides:
ART. 26.All marriages solemnized outside the Philippines in
accordance with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35(1), (4), (5) and
(6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry, the
Filipino spouse shall have capacity to remarry under Philippine law.
(Emphasis supplied)
On its face, the foregoing provision does not appear to govern the situation presented
by the case at hand. It seems to apply only to cases where at the time of the
celebration of the marriage, the parties are a Filipino citizen and a foreigner. The instant
case is one where at the time the marriage was solemnized, the parties were two
Filipino citizens, but later on, the wife was naturalized as an American citizen and
subsequently obtained a divorce granting her capacity to remarry, and indeed she
remarried an American citizen while residing in the U.S.A.
Noteworthy, in the Report of the Public Hearings 9 on the Family Code, the Catholic
Bishops' Conference of the Philippines (CBCP) registered the following objections to
Paragraph 2 of Article 26:
1.The rule is discriminatory. It discriminates against those whose
spouses are Filipinos who divorce them abroad. These
spouses who are divorced will not be able to re-marry,

Records of the proceedings of the Family Code deliberations showed that the intent of
Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil
Code Revision Committee, is to avoid the absurd situation where the Filipino spouse
remains married to the alien spouse who, after obtaining a divorce, is no longer married
to the Filipino spouse. AETcSa
Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v.
Romillo, Jr. 10 The Van Dorn case involved a marriage between a Filipino citizen and a
foreigner. The Court held therein that a divorce decree validly obtained by the alien
spouse is valid in the Philippines, and consequently, the Filipino spouse is capacitated to
remarry under Philippine law.
Does the same principle apply to a case where at the time of the celebration of the
marriage, the parties were Filipino citizens, but later on, one of them obtains a foreign
citizenship by naturalization?
The jurisprudential answer lies latent in the 1998 case of Quita v. Court of
Appeals. 11 In Quita, the parties were, as in this case, Filipino citizens when they got
married. The wife became a naturalized American citizen in 1954 and obtained a
divorce in the same year. The Court therein hinted, by way ofobiter dictum, that a
Filipino divorced by his naturalized foreign spouse is no longer married under Philippine
law and can thus remarry.
Thus, taking into consideration the legislative intent and applying the rule of reason, we
hold that Paragraph 2 of Article 26 should be interpreted to include cases involving
parties who, at the time of the celebration of the marriage were Filipino citizens, but
later on, one of them becomes naturalized as a foreign citizen and obtains a divorce
decree. The Filipino spouse should likewise be allowed to remarry as if the other party
were a foreigner at the time of the solemnization of the marriage. To rule otherwise
would be to sanction absurdity and injustice. Where the interpretation of a statute
according to its exact and literal import would lead to mischievous results or contravene
the clear purpose of the legislature, it should be construed according to its spirit and
reason, disregarding as far as necessary the letter of the law. A statute may therefore be
extended to cases not within the literal meaning of its terms, so long as they come within
its spirit or intent. 12

241

If we are to give meaning to the legislative intent to avoid the absurd situation where
the Filipino spouse remains married to the alien spouse who, after obtaining a divorce is
no longer married to the Filipino spouse, then the instant case must be deemed as
coming within the contemplation of Paragraph 2 of Article 26. AHDTIE
In view of the foregoing, we state the twin elements for the application of Paragraph 2
of Article 26 as follows:
1.There is a valid marriage that has been celebrated between a
Filipino citizen and a foreigner; and
2.A valid divorce is obtained abroad by the alien spouse
capacitating him or her to remarry.
The reckoning point is not the citizenship of the parties at the time of the celebration of
the marriage, but their citizenship at the time a valid divorce is obtained abroad by the
alien spouse capacitating the latter to remarry.
In this case, when Cipriano's wife was naturalized as an American citizen, there was still
a valid marriage that has been celebrated between her and Cipriano. As fate would
have it, the naturalized alien wife subsequently obtained a valid divorce capacitating
her to remarry. Clearly, the twin requisites for the application of Paragraph 2 of Article 26
are both present in this case. Thus Cipriano, the "divorced" Filipino spouse, should be
allowed to remarry.
We are also unable to sustain the OSG's theory that the proper remedy of the Filipino
spouse is to file either a petition for annulment or a petition for legal separation.
Annulment would be a long and tedious process, and in this particular case, not even
feasible, considering that the marriage of the parties appears to have all the badges of
validity. On the other hand, legal separation would not be a sufficient remedy for it
would not sever the marriage tie; hence, the legally separated Filipino spouse would still
remain married to the naturalized alien spouse.
However, we note that the records are bereft of competent evidence duly submitted
by respondent concerning the divorce decree and the naturalization of respondent's
wife. It is settled rule that one who alleges a fact has the burden of proving it and mere
allegation is not evidence. 13
Accordingly, for his plea to prosper, respondent herein must prove his allegation that his
wife was naturalized as an American citizen. Likewise, before a foreign divorce decree
can be recognized by our own courts, the party pleading it must prove the divorce as a
fact and demonstrate its conformity to the foreign law allowing it. 14 Such foreign law
must also be proved as our courts cannot take judicial notice of foreign laws. Like any
other fact, such laws must be alleged and proved. 15 Furthermore, respondent must
also show that the divorce decree allows his former wife to remarry as specifically
required in Article 26. Otherwise, there would be no evidence sufficient to declare that
he is capacitated to enter into another marriage.

Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the

Family Code (E.O. No. 209, as amended by E.O. No. 227), should be interpreted to allow
a Filipino citizen, who has been divorced by a spouse who had acquired foreign
citizenship and remarried, also to remarry. However, considering that in the present
petition there is no sufficient evidence submitted and on record, we are unable to
declare, based on respondent's bare allegations that his wife, who was naturalized as
an American citizen, had obtained a divorce decree and had remarried an American,
that respondent is now capacitated to remarry. Such declaration could only be made
properly upon respondent's submission of the aforecited evidence in his favor. CcAHEI
ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The assailed
Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the Regional Trial
Court of Molave, Zamboanga del Sur, Branch 23, are hereby SET ASIDE.
No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Ynares-Santiago, Carpio and Azcuna, JJ., concur.
EN BANC
[G.R. No. 46631. November 16, 1939.]
9. IDONAH SLADE PERKINS, petitioner, vs. ARSENIO P. DIZON, Judge
of First Instance of Manila, EUCENE ARTHUR PERKINS, and BENGUET
CONSOLIDATED MINING COMPANY, respondents.
Alva J. Hill; for petitioner.
Ross, Lawrence, Selph & Carrascoso; for respondent Judge and Benguet
Consolidated Mining Company.
DeWitt, Perkins & Ponce Enrile; for respondent Perkins.
DECISION
MORAN, J p:
On July 6, 1938, respondent, Eugene Arthur Perkins, instituted an action in
the Court of First Instance of Manila against the Benguet Consolidated Mining
Company for dividends amounting to P71,379.90 on 52,874 shares of stock
registered in his name, payment of which was being withheld by the company;
and, for the recognition of his right to the control and disposal of said shares, to the
exclusion of all others. To the complaint, the company filed its answer alleging, by
way of defense, that the withholding of such dividends and the non-recognition of
plaintiff's right to the disposal and control of the shares were due to certain

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demands made with respect to said shares by the petitioner herein, Idonah Slade
Perkins, and by one George H. Engelhard. The answer prays that the adverse
claimants be made parties to the action and served with notice thereof by
publication, and that thereafter all such parties be required to interplead and settle
the rights among themselves. On September 5, 1938, the trial court ordered
respondent Eugene Arthur Perkins to include in his complaint as parties defendant
petitioner, Idonah Slade Perkins, and George H. Engelhard. The complaint was
accordingly amended and in addition to the relief prayed for in the original
complaint,-respondent Perkins prayed that petitioner Idonah Slade Perkins and
George H. Engelhard be adjudged without interest in the shares of stock in question
and excluded from any claim they assert thereon. Thereafter, summons by
publication were served upon the non-resident defendants, Idonah Slade Perkins
and George H. Engelhard, pursuant to the order of the trial court. On December 9,
1938, Engelhard filed his answer to the amended complaint, and on December 10,
1938, petitioner Idonah Slade Perkins, through counsel, filed her pleading entitled
"objection to venue, motion to quash, and demurrer to jurisdiction" wherein she
challenged the jurisdiction of the lower court over her person. Petitioner's objection,
motion and demurrer having been overruled as well as her motion for
reconsideration of the order of denial, she now brought the present petition for
certiorari, praying that the summons by publication issued against her be declared
null and void, and that, with respect to her, respondent judge be permanently
prohibited from taking any action on the case.

(2)When the defendant is a non-resident and refuses to appear

voluntarily, the court cannot acquire jurisdiction over his person even if the
summons be served by publication, for he is beyond the reach of judicial process.
No tribunal established by one State can extend its process beyond its territory so as
to subject to its decisions either persons or property located in another State. "There
are many expressions in the American reports from which it might be inferred that
the court acquires personal jurisdiction over the person of the defendant by
publication and notice; but such is not the case. In truth, the proposition that
jurisdiction over the person of a non-resident cannot be acquired by publication
and notice was never clearly understood even in the American courts until after
the decision had been rendered by the Supreme Court of the United States in the
leading case of Pennoyer v. Neff (95 U. S., 714; 24 Law. ed., 565). In the light of that
decision, and of other decisions which have subsequently been rendered in that
and other courts, the proposition that jurisdiction over the person cannot be thus
acquired by publication and notice is no longer open to question; and it is now fully
established that a personal judgment upon constructive or substituted service
against a non-resident who does not appear is wholly invalid. This doctrine applies
to all kinds of constructive or substituted process, including service by publication
and personal service outside of the jurisdiction in which the judgment is rendered;
and the only exception seems to be found in the case where the non-resident
defendant has expressly or impliedly consented to the mode of service. (Note to
Raher vs. Raher, 35 L. R. A. [N. S.], 292; see also 5 L. R. A. 585; 35 L. R. A. L. R. S.], 312.)

The controlling issue here involved is whether or not the Court of First
Instance of Manila has acquired jurisdiction over the person of the present
petitioner as a non-resident defendant, or, notwithstanding the want of such
jurisdiction, whether or not said court may validly try the case. The parties have filed
lengthy memorandums relying on numerous authorities, but the principles
governing the question are well settled in this jurisdiction.

(3)The general rule, therefore, is that a suit against a non-resident cannot

be entertained by a Philippine court. Where, however, the action is in rem or quasi
in rem in connection with property located in the Philippines, the court acquires
jurisdiction over the res, and its jurisdiction over the person of the non-resident is
non-essential. In order that the court may exercise power over the res, it is not
necessary that the court should take actual custody of the property, potential
custody thereof being sufficient. There is potential custody when, from the nature of
the action brought, the power of the court over the property is impliedly
recognized by law. "An illustration of what we term potential jurisdiction over
the res, is found in the proceeding to register the title of land under our system for
the registration of land. Here the court, without taking actual physical control over
the property, assumes, at the instance of some person claiming to be owner, to
exercise a jurisdiction in rem over the property and to adjudicate the title in favor of
the petitioner against all the world."

Section 398 of our Code of Civil Procedure provides that when a nonresident defendant is sued in the Philippine courts and it appears, by the complaint
or by affidavits, that the action relates to real or personal property within the
Philippines in which said defendant has or claims a lien or interest, actual or
contingent, or in which the relief demanded consists, wholly or in part, in excluding
such person from any interest therein, service of summons may be made by
publication.
We have fully explained the meaning of this provision in El Banco Espaol
Filipino vs. Palanca, 37 Phil., 921, wherein we laid down the following rules:
(1)In order that the court may validly try a case, it must have jurisdiction
over the subject-matter and over the persons of the parties. Jurisdiction over the
subject-matter is acquired by concession of the sovereign authority which
organizes a court and determines the nature and extent of its powers in general
and thus fixes its jurisdiction with reference to actions which it may entertain and
the relief it may grant. Jurisdiction over the persons of the parties is acquired by
their voluntary appearance in court and their submission to its authority, or by the
coercive power of legal process exerted over their persons.

(4)As before stated, in an action in rem or quasi in rem against a nonresident defendant, jurisdiction over his person is non-essential, and if the law
requires in such case that the summons upon the defendant be served by
publication, it is merely to satisfy the constitutional requirement of due process. If
any be said, in this connection, that "many reported cases can be cited in which it
is assumed that the question of the sufficiency of publication or notice in a case of
this kind is a question affecting the jurisdiction of the court, and the court is
sometimes said to acquire jurisdiction by virtue of the publication. This phraseology
was undoubtedly originally adopted by the court because of the analogy
between service by publication and personal service of process upon the
defendant; and, as has already been suggested, prior to the decision of Pennoyer

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v. Neff (supra), the difference between the legal effects of the two forms of service
was obscure. It is accordingly not surprising that the modes of expression which had
already been mounded into legal tradition before that case was decided have
been brought down to the present day. But it is clear that the legal principle here
involved is not affected by the peculiar language in which the courts have
expounded their ideas."
The reason for the rule that Philippine courts cannot acquire jurisdiction
over the person of a non-resident, as laid down by the Supreme Court of the United
States in Pennoyer v. Neff, supra, may be found in a recognized principle of public
law to the effect that "no State can exercise direct jurisdiction and authority over
persons or property without its territory. Story, Confl. L., ch. 2; Wheat, Int. L., pt. 2, ch.
2. The several States are of equal dignity and authority, and the independence of
one implies the exclusion of power from all others. And so it is laid down by jurists, as
an elementary principle, that the laws of one State have no operation outside of its
territory, except so far as is allowed by comity; and that no tribunal established by it
can extend its process beyond that territory so as to subject either persons or
property to its decisions. Any exertion of authority of this sort beyond this limit,' says
Story, 'is a mere nullity, and incapable of binding such persons or property in any
other tribunals.' Story, Confl. L., sec. 539." (Pennoyer v. Neff, 95 U. S., 714; 24 Law.
ed., 565, 568-569.)
When, however, the action relates to property located in the Philippines,
the Philippine courts may validly try the case, upon the principle that a "State,
through its tribunals, may subject property situated within its limits owned by nonresidents to the payment of the demand of its own citizens against them; and the
exercise of this jurisdiction in no respect infringes upon the sovereignty of the State
where the owners are domiciled. Every State owes protection to its own citizens;
and, when non-residents deal with them, it is a legitimate and just exercise of
authority to hold and appropriate any property owned by such non-residents to
satisfy the claims of its citizens. It is in virtue of the State's jurisdiction over the
property of the non-resident situated within its limits that its tribunals can inquire into
the non-resident's obligations to its own citizens, and the inquiry can then be
carried only to the extent necessary to control the disposition of the property. If the
non-resident has no property in the State, there is nothing upon which the tribunals
can adjudicate." (Pennoyer v. Neff, supra.)
In the instant case, there can be no question that the action brought by
Eugene Arthur Ferkins in his amended complaint against the petitioner, Idonah
Slade Perkins, seeks to exclude her from any interest in a property located in the
Philippines. That property consists in certain shares of stock of the Benguet
Consolidated Mining Company, a sociedad anonima, organized in the Philippines
under the provisions of the Spanish Code of Commerce, with its principal office in
the City of Manila and which conducts its mining activities therein. The situs of the
shares is in the jurisdiction where the corporation is created, whether the
certificates evidencing the ownership of those shares are within or without that
jurisdiction. (Fletcher Cyclopedia Corporations, Permanent ed., Vol. 11, p. 95).
Under these circumstances, we hold that the action thus brought is quasi in rem,
for, while the judgment that may be rendered therein is not strictly a judgment in

rem, "it fixes and settles the title to the property in controversy and to that extent
partakes of the nature of the judgment in rem." (50 C. J., p. 503). As held by the
Supreme Court of the United States in Pennoyer v. Neff (supra):
"It is true that, in a strict sense, a proceeding in rem is one
taken directly against property, and has for its object the
disposition of the property, without reference to the title of
individual claimants; but, in a larger and more general senses the
terms are applied to actions between parties, where the direct
object is to reach and dispose of property owned by them, or of
some interest therein."
The action being quasi in rem, the Court of First Instance of Manila has
jurisdiction to try the same even if it can acquire no jurisdiction over the person of
the non-resident. In order to satisfy the constitutional requirement of due process,
summons has been served upon her by publication. There is no question as to the
adequacy of the publication made nor as to the mailing of the order of publication
to the petitioner's last known place of residence in the United States. But, of course,
the action being quasi in rem and notice having been made by publication, the
relief that may be granted by the Philippine court must be confined to the res, it
having no jurisdiction to render a personal judgment against the non-resident. In
the amended complaint filed by Eugene Arthur Perkins, no money judgment or
other relief in personam is prayed for against the petitioner. The only relief sought
therein is that she be declared to be without any interest in the shares in
controversy and that she be excluded from any claim thereto.
Petitioner contends that the proceeding instituted against her is one of
interpleading and is therefore an action in personam. Section 120 of our Code of
Civil Procedure provides that whenever conflicting claims are or may he made
upon a person for or relating to personal property, or the performance of an
obligation or any portion thereof, so that he may be made subject to several
actions by different persons, such person may bring an action against the
conflicting claimants, disclaiming personal interest in the controversy, and the court
may order them to interplead with one another and litigate their several claims
among themselves, and thereupon proceed to determine their several claims.
Here, the Benguet Consolidated Mining Company, in its answer to the complaint
filed by Eugene Arthur Perkins, averred that in connection with the shares of stock in
question, conflicting claims were being made upon it by said plaintiff, Eugene
Arthur Perkins, his wife Idonah Slade Perkins, and one named George H. Engelhard,
and prayed that these last two be made parties to the action and served with
summons by publication, so that the three claimants may litigate their conflicting
claims and settle their rights among themselves. The court has not issued an order
compelling the conflicting claimants to interplead with one another and litigate
their several claims among themselves, but instead ordered the plaintiff to amend
his complaint including the other two claimants as parties defendant. The plaintiff
did so, praying that the new defendants thus joined be excluded from any interest
in the shares in question, and it is upon this amended complaint that the court
ordered the service of the summons by publication. It is, therefore, clear that the

244

publication of the summons was ordered not in virtue of an interpleading, but upon
the filing of the amended complaint wherein an action quasi in remis alleged.
Had not the complaint been amended, including the herein petitioner as
an additional defendant, and had the court, upon the filing of the answer of the
Benguet Consolidated Mining Company, issued an order under section 120 of the
Code of Civil Procedure, calling the conflicting claimants into court and
compelling them to interplead with one another, such order could not perhaps
have validly been served by publication or otherwise, upon the non-resident
Idonah Slade Perkins, for then the proceeding would be purely one of
interpleading. Such proceeding is a personal action, for it merely seeks to call
conflicting claimants into court so that they may interplead and litigate their
several claims among themselves, and no specific relief is prayed for against them,
as the interpleader simply disclaims any personal interest in the controversy. What
would be the situation if, after the claimants have appeared in court, one of them
pleads ownership of the personal property located in the Philippines and seeks to
exclude a non-resident claimant from any interest therein, is a question which we
do not decide now. Suffice it to say that here the service of the summons by
publication was ordered by the lower court by virtue of an action quasi in rem
against the non-resident defendant.
Respondents contend that, as the petitioner in the lower court has
pleaded res adjudicata, lis pendens and lack of jurisdiction over the subjectmatter, she has submitted herself to its jurisdiction. We have noticed, however, that
these pleas have been made not as independent grounds for relief, but merely as
additional arguments in support of her contention that the lower court had no
jurisdiction over her person. In other words, she claimed that the lower court had no
jurisdiction over her person not only because she is a non-resident, but also
because the court had no jurisdiction over the subject-matter of the action and
that the issues therein involved have already been decided by the New York court
and are being relitigated in the California court. Although this argument is obviously
erroneous, as neither jurisdiction over the subject-matter nor res adjudicata nor lis
pendenshas anything to do with the question of jurisdiction over her person, we
believe and so hold that the petitioner has not, by such erroneous argument,
submitted herself to the jurisdiction of the court. Voluntary appearance cannot be
implied from either a mistaken or superfluous reasoning but from the nature of the
relief prayed for.
For all of the foregoing, petition is hereby denied, with costs against
petitioner.

10. PHILSEC INVESTMENT CORPORATION, BPI-INTERNATIONAL

FINANCE LIMITED, and ATHONA HOLDINGS, N.V., petitioners,vs. THE
HONORABLE COURT OF APPEALS, 1488, INC., DRAGO DAIC,
VENTURA O. DUCAT, PRECIOSO R. PERLAS and WILLIAM H.
CRAIG, respondents.
Padilla Law Office for petitioners.
Salonga Hernandez & Mendoza for Guevarra.
Oreta, Suarez & Narvasa Law Firm for private respondents.
DECISION
MENDOZA, J p:
This case presents for determination the conclusiveness of a foreign judgment upon the
rights of the parties under the same cause of action asserted in a case in our local court.
Petitioners brought this case in the Regional Trial Court of Makati, Branch 56, which, in
view of the pendency at the time of the foreign action, dismissed Civil Case No. 16563
on the ground of litis pendentia, in addition to forum non conveniens. On appeal, the
Court of Appeals affirmed. Hence this petition for review on certiorari.
The facts are as follows:
On January 15, 1983, private respondent Ventura O. Ducat obtained separate loans
from petitioners Ayala International Finance Limited (hereafter called AYALA) 1 and
Philsec Investment Corporation (hereafter called PHILSEC) in the sum of US$2,500,000.00
secured by shares of stock owned by Ducat with a market value of P14,088,995.00. In
order to facilitate the payment of the loans, private respondent 1488, Inc., through its
president, private respondent Drago Daic, assumed Ducat's obligation under an
Agreement, dated January 27, 1983, whereby 1488, Inc. executed a Warranty Deed
with Vendor's Lien by which it sold to petitioner Athona Holdings, N.V. (hereafter called
ATHONA) a parcel of land in Harris County, Texas, U.S.A. for US$2,807,209.02, while
PHILSEC and AYALA extended a loan to ATHONA in the amount of US$2,500,000.00 as
initial payment of the purchase price. The balance of US$307,209.02 was to be paid by
means of a promissory note executed by ATHONA in favor of 1488, Inc. Subsequently,
upon their receipt of the US$2,500,000.00 from 1488, Inc., PHILSEC and AYALA released
Ducat from his indebtedness and delivered to 1488, Inc. all the shares of stock in their
possession belonging to Ducat.

Avancea, C.J., Villa-Real, Imperial, Diaz and Concepcion, JJ., concur.

SECOND DIVISION
[G.R. No. 103493. June 19, 1997.]

As ATHONA failed to pay the interest on the balance of US$307,209.02, the entire
amount covered by the note became due and demandable. Accordingly, on October
17, 1985, private respondent 1488, Inc. sued petitioners PHILSEC, AYALA and ATHONA in
the United States for payment of the balance of US$307,209.02 and for damages for
breach of contract and for fraud allegedly perpetrated by petitioners in
misrepresenting the marketability of the shares of stock delivered to 1488, Inc. under the
Agreement. Originally instituted in the United States District Court of Texas, 165th Judicial

245

District, where it was docketed as Case No. 85-57746, the venue of the action was later
transferred to the United States District Court for the Southern District of Texas, where
1488, Inc. filed an amended complaint, reiterating its allegations in the original
complaint. ATHONA filed an answer with counterclaim, impleading private respondents
herein as counterdefendants, for allegedly conspiring in selling the property at a price
over its market value. Private respondent Perlas, who had allegedly appraised the
property, was later dropped as counterdefendant. ATHONA sought the recovery of
damages and excess payment allegedly made to 1488, Inc. and, in the alternative, the
rescission of sale of the property. For their part, PHILSEC and AYALA filed a motion to
dismiss on the ground of lack of jurisdiction over their person, but, as their motion was
denied, they later filed a joint answer with counterclaim against private respondents
and Edgardo V. Guevarra, PHILSEC's own former president, for the rescission of the sale
on the ground that the property had been over-valued. On March 13, 1990, the United
States District Court for the Southern District of Texas dismissed the counterclaim against
Edgardo V. Guevarra on the ground that it was "frivolous and [was] brought against him
simply to humiliate and embarrass him." For this reason, the U.S. court imposed so-called
Rule 11 sanctions on PHILSEC and AYALA and ordered them to pay damages to
Guevarra.
On April 10, 1987, while Civil Case No. H-86-440 was pending in the United States,
petitioners filed a complaint "For Sum of Money with Damages and Writ of Preliminary
Attachment" against private respondents in the Regional Trial Court of Makati, where it
was docketed as Civil Case No. 16563. The complaint reiterated the allegation of
petitioners in their respective counterclaims in Civil Action No. H-86-440 of the United
States District Court of Southern Texas that private respondents committed fraud by
selling the property at a price 400 percent more than its true value of US$800,000.00.
Petitioners claimed that, as a result of private respondents' fraudulent
misrepresentations, ATHONA, PHILSEC and AYALA were induced to enter into the
Agreement and to purchase the Houston property. Petitioners prayed that private
respondents be ordered to return to ATHONA the excess payment of US$1,700,000.00
and to pay damages. On April 20, 1987, the trial court issued a writ of preliminary
attachment against the real and personal properties of private respondents. 2
Private respondent Ducat moved to dismiss Civil Case No. 16563 on the grounds of (1)
litis pendentia, vis-a-vis Civil Action No. H-86-440 filed by 1488, Inc. and Daic in the U.S.,
(2) forum non conveniens, and (3) failure of petitioners PHILSEC and BPI-IFL to state a
cause of action. Ducat contended that the alleged overpricing of the property
prejudiced only petitioner ATHONA, as buyer, but not PHILSEC and BPI-IFL which were
not parties to the sale and whose only participation was to extend financial
accommodation to ATHONA under a separate loan agreement. On the other hand,
private respondents 1488, Inc. and its president Daic filed a joint "Special Appearance
and Qualified Motion to Dismiss," contending that the action being in personam,
extraterritorial service of summons by publication was ineffectual and did not vest the
court with jurisdiction over 1488, Inc., which is a non-resident foreign corporation, and
Daic, who is a non-resident alien.
On January 26, 1988, the trial court granted Ducat's motion to dismiss, stating that "the
evidentiary requirements of the controversy may be more suitably tried before the forum

of the litis pendentia in the U.S., under the principle in private international law of forum
non conveniens," even as it noted that Ducat was not a party in the U.S. case.
A separate hearing was held with regard to 1488, Inc. and Daic's motion to dismiss. On
March 9, 1988, the trial court 3 granted the motion to dismiss filed by 1488, Inc. and Daic
on the ground of litis pendentia considering that
the "main factual element" of the cause of action in this case
which is the validity of the sale of real property in the United States
between defendant 1488 and plaintiff ATHONA is the subject
matter of the pending case in the United States District Court
which, under the doctrine offorum non conveniens, is the better (if
not exclusive) forum to litigate matters needed to determine the
assessment and/or fluctuations of the fair market value of real
estate situated in Houston, Texas, U.S.A. from the date of the
transaction in 1983 up to the present and verily, . . . (emphasis by
trial court)

The trial court also held itself without jurisdiction over 1488, Inc. and Daic because they
were non-residents and the action was not an action in rem or quasi in rem, so that
extraterritorial service of summons was ineffective. The trial court subsequently lifted the
writ of attachment it had earlier issued against the shares of stocks of 1488, Inc. and
Daic.
Petitioners appealed to the Court of Appeals, arguing that the trial court erred in
applying the principle of litis pendentia and forum non conveniens and in ruling that it
had no jurisdiction over the defendants, despite the previous attachment of shares of
stocks belonging to 1488, Inc. and Daic.
On January 6, 1992, the Court of Appeals 4 affirmed the dismissal of Civil Case No. 16563
against Ducat, 1488, Inc., and Daic on the ground of litis pendentia, thus:
The plaintiffs in the U.S. court are 1488 Inc. and/or Drago Daic,
while the defendants are Philsec, the Ayala International Finance
Ltd. (BPI-IFL's former name) and the Athona Holdings, NV. The case
at bar involves the same parties. The transaction sued upon by the
parties, in both cases is the Warranty Deed executed by and
between Athona Holdings and 1488 Inc. In the U.S. case, breach of
contract and the promissory notes are sued upon by 1488 Inc.,
which likewise alleges fraud employed by herein appellants, on the
marketability of Ducat's securities given in exchange for the Texas
property. The recovery of a sum of money and damages, for fraud
purportedly committed by appellees, in overpricing the Texas land,
constitute the action before the Philippine court, which likewise
stems from the same Warranty Deed.

246

The Court of Appeals also held that Civil Case No. 16563 was an action in personam for
the recovery of a sum of money for alleged tortious acts, so that service of summons by
publication did not vest the trial court with jurisdiction over 1488, Inc. and Drago Daic.
The dismissal of Civil Case No. 16563 on the ground of forum non conveniens was
likewise affirmed by the Court of Appeals on the ground that the case can be better
tried and decided by the U.S. court:
The U.S. case and the case at bar arose from only one main transaction, and involve
foreign elements, to wit: 1) the property subject matter of the sale is situated in Texas,
U.S.A.; 2) the seller, 1488 Inc. is a non-resident foreign corporation; 3) although the buyer,
Athona Holdings, a foreign corporation which does not claim to be doing business in the
Philippines, is wholly owned by Philsec, a domestic corporation, Athona Holdings is also
owned by BPI-IFL, also a foreign corporation; 4) the Warranty Deed was executed in
Texas, U.S.A.
In their present appeal, petitioners contend that:

Rules of Court, to wit: "want of jurisdiction, want of notice to the party, collusion, fraud,
or clear mistake of law or fact."
Petitioners' contention is meritorious. While this court has given the effect of res judicata
to foreign judgments in several cases, 7 it was after the parties opposed to the judgment
had been given ample opportunity to repel them on grounds allowed under the law. 8 It
is not necessary for this purpose to initiate a separate action or proceeding for
enforcement of the foreign judgment. What is essential is that there is opportunity to
challenge the foreign judgment, in order for the court to properly determine its efficacy.
This is because in THIS jurisdiction, with respect to actions in personam, as distinguished
from actions in rem, a foreign judgment merely constitutes prima facie evidence of the
justness of the claim of a party and, as such, is subject to proof to the contrary. 9 Rule 39,
50 provides:
SEC. 50.Effect of foreign judgments. The effect of a judgment of
a tribunal of a foreign country, having jurisdiction to pronounce the
judgment is as follows:

1.THE DOCTRINE OF PENDENCY OF ANOTHER ACTION BETWEEN THE

SAME PARTIES FOR THE SAME CAUSE (LITIS PENDENTIA) RELIED UPON
BY THE COURT OF APPEALS IN AFFIRMING THE TRIAL COURT'S
DISMISSAL OF THE CIVIL ACTION IS NOT APPLICABLE.

(a)In case of a judgment upon a specific thing, the judgment is

conclusive upon the title to the thing;

2.THE PRINCIPLE OF FORUM NON CONVENIENS ALSO RELIED UPON

BY THE COURT OF APPEALS IN AFFIRMING THE DISMISSAL BY THE
TRIAL COURT OF THE CIVIL ACTION IS LIKEWISE NOT APPLICABLE.

(b)In case of a judgment against a person, the judgment is

presumptive evidence of a right as between the parties and their
successors in interest by a subsequent title; but the judgment may
be repelled by evidence of a want of jurisdiction, want of notice to
the party, collusion, fraud, or clear mistake of law or fact.

3.AS A COROLLARY TO THE FIRST TWO GROUNDS, THE COURT OF

APPEALS ERRED IN NOT HOLDING THAT PHILIPPINE PUBLIC POLICY
REQUIRED THE ASSUMPTION, NOT THE RELINQUISHMENT, BY THE TRIAL
COURT OF ITS RIGHTFUL JURISDICTION IN THE CIVIL ACTION FOR
THERE IS EVERY REASON TO PROTECT AND VINDICATE PETITIONERS'
RIGHTS FOR TORTIOUS OR WRONGFUL ACTS OR CONDUCT PRIVATE
RESPONDENTS (WHO ARE MOSTLY NON-RESIDENT ALIENS) INFLICTED
UPON THEM HERE IN THE PHILIPPINES.
We will deal with these contentions in the order in which they are made.
First. It is important to note in connection with the first point that while the present case
was pending in the Court of Appeals, the United States District Court for the Southern
District of Texas rendered judgment 5 in the case before it. The judgment, which was in
favor of private respondents, was affirmed on appeal by the Circuit Court of
Appeals. 6 Thus, the principal issue to be resolved in this case is whether Civil Case No.
16536 is barred by the judgment of the U.S. court.
Private respondents contend that for a foreign judgment to be pleaded as res judicata,
a judgment admitting the foreign decision is not necessary. On the other hand,
petitioners argue that the foreign judgment cannot be given the effect of res judicata
without giving them an opportunity to impeach it on grounds stated in Rule 39, 50 of the

Thus, in the case of General Corporation of the Philippines v. Union Insurance Society of
Canton, Ltd., 10 which private respondents invoke for claiming conclusive effect for the
foreign judgment in their favor, the foreign judgment was considered res judicata
because this Court found "from the evidence as well as from appellant's own
pleadings" 11 that the foreign court did not make a "clear mistake of law or fact" or that
its judgment was void for want of jurisdiction or because of fraud or collusion by the
defendants. Trial had been previously held in the lower court and only afterward was a
decision rendered, declaring the judgment of the Supreme Court of the State of
Washington to have the effect of res judicata in the case before the lower court. In the
same vein, in Philippine International Shipping Corp. v. Court of Appeals, 12 this court
held that the foreign judgment was valid and enforceable in the Philippines there being
no showing that it was vitiated by want of notice to the party, collusion, fraud or clear
mistake of law or fact. The prima facie presumption under the Rule had not been
rebutted.
In the case at bar, it cannot be said that petitioners were given the opportunity to
challenge the judgment of the U.S. court as basis for declaring it res judicata or
conclusive of the rights of private respondents. The proceedings in the trial court were
summary. Neither the trial court nor the appellate court was even furnished copies of
the pleadings in the U.S. court or apprised of the evidence presented thereat, to assure
a proper determination of whether the issues then being litigated in the U.S. court were

247

exactly the issues raised in this case such that the judgment that might be rendered
would constitute res judicata. As the trial court stated in its disputed order dated March
9, 1988.
On the plaintiff's claim in its Opposition that the causes of action of
this case and the pending case in the United States are not
identical, precisely the Order of January 26, 1988 never found that
the causes of action of this case and the case pending before the
USA Court, were identical. (emphasis added)
It was error therefore for the Court of Appeals to summarily rule that petitioners' action is
barred by the principle of res judicata. Petitioners in fact questioned the jurisdiction of
the U.S. court over their persons, but their claim was brushed aside by both the trial court
and the Court of Appeals. 13
Moreover, the Court notes that on April 22, 1992, 1488, Inc. and Daic filed a petition for
the enforcement of judgment in the Regional Trial Court of Makati, where it was
docketed as Civil Case No. 92-1070 and assigned to Branch 134, although the
proceedings were suspended because of the pendency of this case. To sustain the
appellate court's ruling that the foreign judgment constitutes res judicata and is a bar to
the claim of petitioners would effectively preclude petitioners from repelling the
judgment in the case for enforcement. An absurdity could then arise: a foreign
judgment is not subject to challenge by the plaintiff against whom it is invoked, if it is
pleaded to resist a claim as in this case, but it may be opposed by the defendant if the
foreign judgment is sought to be enforced against him in a separate proceeding. This is
plainly untenable. It has been held therefore that:
[A] foreign judgment may not be enforced if it is not recognized in
the jurisdiction where affirmative relief is being sought. Hence, in
the interest of justice, the complaint should be considered as a
petition for the recognition of the Hongkong judgment under
Section 50 (b), Rule 39 of the Rules of Court in order that the
defendant, private respondent herein, may present evidence of
lack of jurisdiction, notice, collusion, fraud or clear mistake of fact
and law, if applicable. 14
Accordingly, to insure the orderly administration of justice, this case and Civil Case No.
92-1070 should be consolidated. 15 After all, the two have been filed in the Regional
Trial Court of Makati, albeit in different salas, this case being assigned to Branch 56
(Judge Fernando V. Gorospe), while Civil Case No. 92-1070 is pending in Branch 134 of
Judge Ignacio Capulong. In such proceedings, petitioners should have the burden of
impeaching the foreign judgment and only in the event they succeed in doing so may
they proceed with their action against private respondents.
Second. Nor is the trial court's refusal to take cognizance of the case justifiable under
the principle of forum non conveniens. First, a motion to dismiss is limited to the grounds
under Rule 16, 1, which does not include forum non conveniens. 16 The propriety of
dismissing a case based on this principle requires a factual determination, hence, it is

more properly considered a matter of defense. Second, while it is within the discretion of
the trial court to abstain from assuming jurisdiction on this ground, it should do so only
after "vital facts are established, to determine whether special circumstances" require
the court's desistance. 17
In this case, the trial court abstained from taking jurisdiction solely on the basis of the
pleadings filed by private respondents in connection with the motion to dismiss. It failed
to consider that one of the plaintiffs (PHILSEC) is a domestic corporation and one of the
defendants (Ventura Ducat) is a Filipino, and that it was the extinguishment of the
latter's debt which was the object of the transaction under litigation. The trial court
arbitrarily dismissed the case even after finding that Ducat was not a party in the U.S.
case.
Third. It was error we think for the Court of Appeals and the trial court to hold that
jurisdiction over 1488, Inc. and Daic could not be obtained because this is an action in
personam and summons were served by extraterritorial service. Rule 14, 17 on
extraterritorial service provides that service of summons on a non-resident defendant
may be effected out of the Philippines by leave of Court where, among others, "the
property of the defendant has been attached within the Philippines." 1 8 It is not
disputed that the properties, real and personal, of the private respondents had been
attached prior to service of summons under the Order of the trial court dated April 20,
1987. 19
Fourth. As for the temporary restraining order issued by the Court on June 29, 1994, to
suspend the proceedings in Civil Case No. 92-1445 filed by Edgardo V. Guevarra to
enforce so-called Rule 11 sanctions imposed on the petitioners by the U.S. court, the
Court finds that the judgment sought to be enforced is severable from the main
judgment under consideration in Civil Case No. 16563. The separability of Guevarra's
claim is not only admitted by petitioners, 20 it appears from the pleadings that
petitioners only belatedly impleaded Guevarra as defendant in Civil Case No.
16563. 21 Hence, the TRO should be lifted and Civil Case No. 92-1445 allowed to
proceed. cdasia
WHEREFORE, the decision of the Court of Appeals is REVERSED and Civil Case No. 16563
is REMANDED to the Regional Trial Court of Makati for consolidation with Civil Case No.
92-1070 and for further proceedings in accordance with this decision. The temporary
restraining order issued on June 29, 1994 is hereby LIFTED.
SO ORDERED.
Regalado, Romero, Puno and Torres, Jr., JJ ., concur.
SECOND DIVISION
[G.R. No. 162894. February 26, 2008.]
11. RAYTHEON INTERNATIONAL, INC., petitioner, vs. STOCKTON W.
ROUZIE, JR., respondent.

248

DECISION
TINGA, J p:
Before this Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of
Civil Procedure which seeks the reversal of the Decision 1 and Resolution 2 of the Court
of Appeals in CA-G.R. SP No. 67001 and the dismissal of the civil case filed by
respondent against petitioner with the trial court.
As culled from the records of the case, the following antecedents appear:
Sometime in 1990, Brand Marine Services, Inc. (BMSI), a corporation duly organized and
existing under the laws of the State of Connecticut, United States of America, and
respondent Stockton W. Rouzie, Jr., an American citizen, entered into a contract
whereby BMSI hired respondent as its representative to negotiate the sale of services in
several government projects in the Philippines for an agreed remuneration of 10% of the
gross receipts. On 11 March 1992, respondent secured a service contract with the
Republic of the Philippines on behalf of BMSI for the dredging of rivers affected by the
Mt. Pinatubo eruption and mudflows. 3
On 16 July 1994, respondent filed before the Arbitration Branch of the National Labor
Relations Commission (NLRC) a suit against BMSI and Rust International, Inc. (RUST),
Rodney C. Gilbert and Walter G. Browning for alleged nonpayment of commissions,
illegal termination and breach of employment contract. 4 On 28 September 1995, Labor
Arbiter Pablo C. Espiritu, Jr. rendered judgment ordering BMSI and RUST to pay
respondent's money claims. 5 Upon appeal by BMSI, the NLRC reversed the decision of
the Labor Arbiter and dismissed respondent's complaint on the ground of lack of
jurisdiction. 6 Respondent elevated the case to this Court but was dismissed in a
Resolution dated 26 November 1997. The Resolution became final and executory on 09
November 1998.
On 8 January 1999, respondent, then a resident of La Union, instituted an action for
damages before the Regional Trial Court (RTC) of Bauang, La Union. The
Complaint, 7 docketed as Civil Case No. 1192-BG, named as defendants herein
petitioner Raytheon International, Inc. as well as BMSI and RUST, the two corporations
impleaded in the earlier labor case. The complaint essentially reiterated the allegations
in the labor case that BMSI verbally employed respondent to negotiate the sale of
services in government projects and that respondent was not paid the commissions due
him from the Pinatubo dredging project which he secured on behalf of BMSI. The
complaint also averred that BMSI and RUST as well as petitioner itself had combined and
functioned as one company.
In its Answer, 8 petitioner alleged that contrary to respondent's claim, it was a foreign
corporation duly licensed to do business in the Philippines and denied entering into any
arrangement with respondent or paying the latter any sum of money. Petitioner also
denied combining with BMSI and RUST for the purpose of assuming the alleged
obligation of the said companies. 9 Petitioner also referred to the NLRC decision which
disclosed that per the written agreement between respondent and BMSI and RUST,

denominated as "Special Sales Representative Agreement," the rights and obligations of

the parties shall be governed by the laws of the State of Connecticut. 10 Petitioner
sought the dismissal of the complaint on grounds of failure to state a cause of action
and forum non conveniens and prayed for damages by way of compulsory
counterclaim. 11
On 18 May 1999, petitioner filed an Omnibus Motion for Preliminary Hearing Based on
Affirmative Defenses and for Summary Judgment 12 seeking the dismissal of the
complaint on grounds of forum non conveniens and failure to state a cause of action.
Respondent opposed the same. Pending the resolution of the omnibus motion, the
deposition of Walter Browning was taken before the Philippine Consulate General in
Chicago. 13
In an Order 14 dated 13 September 2000, the RTC denied petitioner's omnibus motion.
The trial court held that the factual allegations in the complaint, assuming the same to
be admitted, were sufficient for the trial court to render a valid judgment thereon. It also
ruled that the principle of forum non conveniens was inapplicable because the trial
court could enforce judgment on petitioner, it being a foreign corporation licensed to
do business in the Philippines. 15
Petitioner filed a Motion for Reconsideration 16 of the order, which motion was opposed
by respondent. 17 In an Order dated 31 July 2001, 18 the trial court denied petitioner's
motion. Thus, it filed a Rule 65 Petition 19 with the Court of Appeals praying for the
issuance of a writ of certiorari and a writ of injunction to set aside the twin orders of the
trial court dated 13 September 2000 and 31 July 2001 and to enjoin the trial court from
conducting further proceedings. 20
On 28 August 2003, the Court of Appeals rendered the assailed Decision 21 denying the
petition for certiorari for lack of merit. It also denied petitioner's motion for
reconsideration in the assailed Resolution issued on 10 March 2004. 22
The appellate court held that although the trial court should not have confined itself to
the allegations in the complaint and should have also considered evidence aliunde in
resolving petitioner's omnibus motion, it found the evidence presented by petitioner,
that is, the deposition of Walter Browning, insufficient for purposes of determining
whether the complaint failed to state a cause of action. The appellate court also stated
that it could not rule one way or the other on the issue of whether the corporations,
including petitioner, named as defendants in the case had indeed merged together
based solely on the evidence presented by respondent. Thus, it held that the issue
should be threshed out during trial. 23 Moreover, the appellate court deferred to the
discretion of the trial court when the latter decided not to desist from assuming
jurisdiction on the ground of the inapplicability of the principle offorum non conveniens.
Hence, this petition raising the following issues:
WHETHER OR NOT THE COURT OF APPEALS ERRED IN REFUSING TO
DISMISS THE COMPLAINT FOR FAILURE TO STATE A CAUSE OF ACTION
AGAINST RAYTHEON INTERNATIONAL, INC.

249

WHETHER OR NOT THE COURT OF APPEALS ERRED IN REFUSING TO

DISMISS THE COMPLAINT ON THE GROUND OF FORUM NON
CONVENIENS. 24
Incidentally, respondent failed to file a comment despite repeated notices. The
Ceferino Padua Law Office, counsel on record for respondent, manifested that the
lawyer handling the case, Atty. Rogelio Karagdag, had severed relations with the law
firm even before the filing of the instant petition and that it could no longer find the
whereabouts of Atty. Karagdag or of respondent despite diligent efforts. In a
Resolution 25 dated 20 November 2006, the Court resolved to dispense with the filing of
a comment.

jurisdiction over the person of petitioner (as party defendant) was acquired by its
voluntary appearance in court. 32
That the subject contract included a stipulation that the same shall be governed by the
laws of the State of Connecticut does not suggest that the Philippine courts, or any
other foreign tribunal for that matter, are precluded from hearing the civil action.
JURISDICTION AND CHOICE OF LAW ARE TWO DISTINCT CONCEPTS. Jurisdiction considers
whether it is fair to cause a defendant to travel to this state; choice of law asks the
further question whether the application of a substantive law which will determine the
merits of the case is fair to both parties. 33 The choice of law stipulation will become
relevant only when the substantive issues of the instant case develop, that is, AFTER
HEARING on the merits proceeds before the trial court.

The instant petition lacks merit.

Petitioner mainly asserts that the written contract between respondent and BMSI
included a valid choice of law clause, that is, that the contract shall be governed by
the laws of the State of Connecticut. It also mentions the presence of foreign elements
in the dispute namely, the parties and witnesses involved are American corporations
and citizens and the evidence to be presented is located outside the Philippines that
renders our local courts inconvenient forums. Petitioner theorizes that the foreign
elements of the dispute necessitate the immediate application of the doctrine of forum
non conveniens.
Recently in Hasegawa v. Kitamura, 26 the Court outlined three consecutive phases
involved in judicial resolution of conflicts-of-laws problems, namely: jurisdiction, choice
of law, and recognition and enforcement of judgments. Thus, in the instances 27 where
the Court held that the local judicial machinery was adequate to resolve controversies
with a foreign element, the following requisites had to be proved: (1) that the Philippine
Court is one to which the parties may conveniently resort; (2) that the Philippine Court is
in a position to make an intelligent decision as to the law and the facts; and (3) that the
Philippine Court has or is likely to have the power to enforce its decision. 28
On the matter of jurisdiction over a conflicts-of-laws problem where the case is filed in a
Philippine court and where the court has jurisdiction over the subject matter, the parties
and the res, it may or can proceed to try the case even if the rules of conflict-of-laws or
the convenience of the parties point to a foreign forum. This is an exercise of sovereign
prerogative of the country where the case is filed. 29
Jurisdiction over the nature and subject matter of an action is conferred by the
Constitution and the law 30 and by the material allegations in the complaint,
irrespective of whether or not the plaintiff is entitled to recover all or some of the claims
or reliefs sought therein. 31 Civil Case No. 1192-BG is an action for damages arising from
an alleged breach of contract. Undoubtedly, the nature of the action and the amount
of damages prayed are within the jurisdiction of the RTC.
As regards jurisdiction over the parties, the trial court acquired jurisdiction over herein
respondent (as party plaintiff) upon the filing of the complaint. On the other hand,

Under the doctrine of forum non conveniens, a court, in conflicts-of-laws cases, may
refuse impositions on its jurisdiction where it is not the most "convenient" or available
forum and the parties are not precluded from seeking remedies
elsewhere. 34 Petitioner's averments of the foreign elements in the instant case are not
sufficient to oust the trial court of its jurisdiction over Civil Case No. No. 1192-BG and the
parties involved.
Moreover, the propriety of dismissing a case based on the principle of forum non
conveniens requires a factual determination; hence, it is more properly considered as a
matter of defense. While it is within the discretion of the trial court to abstain from
assuming jurisdiction on this ground, it should do so only after vital facts are established,
to determine whether special circumstances require the court's desistance. 35
Finding no grave abuse of discretion on the trial court, the Court of Appeals respected
its conclusion that it can assume jurisdiction over the dispute notwithstanding its foreign
elements. In the same manner, the Court defers to the sound discretion of the lower
courts because their findings are binding on this Court.
Petitioner also contends that the complaint in Civil Case No. 1192-BG failed to state a
cause of action against petitioner. Failure to state a cause of action refers to the
insufficiency of allegation in the pleading. 36 As a general rule, the elementary test for
failure to state a cause of action is whether the complaint alleges facts which if true
would justify the relief demanded. 37
The complaint alleged that petitioner had combined with BMSI and RUST to function as
one company. Petitioner contends that the deposition of Walter Browning rebutted this
allegation. On this score, the resolution of the Court of Appeals is instructive, thus:
. . . Our examination of the deposition of Mr. Walter Browning as
well as other documents produced in the hearing shows that these
evidencealiunde are not quite sufficient for us to mete a ruling that
the complaint fails to state a cause of action.
Annexes "A" to "E" by themselves are not substantial, convincing
and conclusive proofs that Raytheon Engineers and Constructors,

250

Inc. (REC) assumed the warranty obligations of defendant Rust

International in the Makar Port Project in General Santos City, after
Rust International ceased to exist after being absorbed by REC.
Other documents already submitted in evidence are likewise
meager to preponderantly conclude that Raytheon International,
Inc., Rust International[,] Inc. and Brand Marine Service, Inc. have
combined into one company, so much so that Raytheon
International, Inc., the surviving company (if at all) may be held
liable for the obligation of BMSI to respondent Rouzie for unpaid
commissions. Neither these documents clearly speak otherwise. 38
As correctly pointed out by the Court of Appeals, the question of whether petitioner,
BMSI and RUST merged together requires the presentation of further evidence, which
only a full-blown trial on the merits can afford.
WHEREFORE, the instant petition for review on certiorari is DENIED. The Decision and
Resolution of the Court of Appeals in CA-G.R. SP No. 67001 are hereby AFFIRMED. Costs
against petitioner.
SO ORDERED.
Carpio, Sandoval-Gutierrez, * Carpio-Morales and Velasco, Jr., JJ., concur.

(1)Order of May 31, 1993. 3 Reversing and setting aside its earlier resolution of August 28,
1992. 4 The questioned order declared that the NLRC, not the Philippine Overseas
Employment Administration (hereinafter referred to as "POEA"), had jurisdiction over
private respondent's complaint;
(2)Decision of December 15, 1994. 5 Directing petitioners to jointly and severally pay
private respondent twelve thousand and six hundred dollars (US$12,600.00) representing
salaries for the unexpired portion of his contract; three thousand six hundred dollars
(US$3,600.00) as extra four months salary for the two (2) year period of his contract,
three thousand six hundred dollars (US$3,600.00) as "14th month pay" or a total of
nineteen thousand and eight hundred dollars (US$19,800.00) or its peso equivalent and
attorney's fees amounting to ten percent (10%) of the total award; and
(3)Order of March 30, 1995. 6 Denying the motion for reconsideration of the
petitioners. EHSITc
In May, 1988, private respondent Marcelo Santos (hereinafter referred to as "Santos")
was an overseas worker employed as a printer at the Mazoon Printing Press, Sultanate of
Oman. Subsequently, in June 1988, he was directly hired by the Palace Hotel, Beijing,
People's Republic of China and later terminated due to retrenchment.
Petitioners are the Manila Hotel Corporation (hereinafter referred to as "MHC") and the
Manila Hotel International Company, Limited (hereinafter referred to as "MHICL").

FIRST DIVISION
[G.R. No. 120077. October 13, 2000.]
12. THE MANILA HOTEL CORP. AND MANILA HOTEL INTL.
LTD., petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION,
ARBITER CEFERINA J. DIOSANA AND MARCELO G.
SANTOS, respondents.

When the case was filed in 1990, MHC was still a government-owned and controlled
corporation duly organized and existing under the laws of the Philippines.
MHICL is a corporation duly organized and existing under the laws of Hong Kong. 7 MHC
is an "incorporator" of MHICL, owning 50% of its capital stock. 8
By virtue of a "management agreement" 9 with the Palace Hotel (Wang Fu Company
Limited), MHICL 10 trained the personnel and staff of the Palace Hotel at Beijing, China.

Office of the Government Corporate Counsel for petitioner.

Now the facts.
The Solicitor General for respondent.
Genie Castillo Quilas for private respondent.
DECISION
PARDO, J p:
The case before the Court is a petition for certiorari 1 to annul the following orders of the
National Labor Relations Commission (hereinafter referred to as "NLRC") for having been
issued without or with excess jurisdiction and with grave abuse of discretion: 2

During his employment with the Mazoon Printing Press in the Sultanate of Oman,
respondent Santos received a letter dated May 2, 1988 from Mr. Gerhard R. Shmidt,
General Manager, Palace Hotel, Beijing, China. Mr. Schmidt informed respondent
Santos that he was recommended by one Nestor Buenio, a friend of his.
Mr. Shmidt offered respondent Santos the same position as printer, but with a higher
monthly salary and increased benefits. The position was slated to open on October 1,
1988. 11
On May 8, 1988, respondent Santos wrote to Mr. Shmidt and signified his acceptance of
the offer.

251

On May 19, 1988, the Palace Hotel Manager, Mr. Hans J. Henk mailed a ready to sign
employment contract to respondent Santos. Mr. Henk advised respondent Santos tha t if
the contract was acceptable, to return the same to Mr. Henk in Manila, together with
his passport and two additional pictures for his visa to China. TAIEcS

"After the unfortunate happenings in China and especially Beijing

(referring to Tiannamen Square incidents), our business has been
severely affected. To reduce expenses, we will not open/operate
printshop for the time being.

On May 30, 1988, respondent Santos resigned from the Mazoon Printing Press, effective
June 30, 1988, under the pretext that he was needed at home to help with the family's
piggery and poultry business.

"We sincerely regret that a decision like this has to be made, but
rest assured this does in no way reflect your past performance
which we found up to our expectations."

On June 4, 1988, respondent Santos wrote the Palace Hotel and acknowledged Mr.
Henk's letter. Respondent Santos enclosed four (4) signed copies of the employment
contract (dated June 4, 1988) and notified them that he was going to arrive in Manila
during the first week of July 1988.

"Should a turnaround in the business happen, we will contact you

directly and give you priority on future assignment."

The employment contract of June 4, 1988 stated that his employment would
commence September 1, 1988 for a period of two years. 12 It provided for a monthly
salary of nine hundred dollars (US$900.00) net of taxes, payable fourteen (14) times a
year. 13
On June 30, 1988, respondent Santos was deemed resigned from the Mazoon Printing
Press.
On July 1, 1988, respondent Santos arrived in Manila.
On November 5, 1988, respondent Santos left for Beijing, China. He started to work at
the Palace Hotel. 14
Subsequently, respondent Santos signed an amended "employment agreement" with
the Palace Hotel, effective November 5, 1988. In the contract, Mr. Shmidt represented
the Palace Hotel. The Vice President (Operations and Development) of petitioner MHICL
Miguel D. Cergueda signed the employment agreement under the word "NOTED."
From June 8 to 29, 1989, respondent Santos was in the Philippines on vacation leave. He
returned to China and reassumed his post on July 17, 1989. AaEcDS
On July 22, 1989, Mr. Shmidt's Executive Secretary, a certain Joanna suggested in a
handwritten note that respondent Santos be given one (1) month notice of his release
from employment.
On August 10, 1989, the Palace Hotel informed respondent Santos by letter signed by
Mr. Shmidt that his employment at the Palace Hotel print shop would be terminated due
to business reverses brought about by the political upheaval in China. 15 We quote the
letter: 16

On September 5, 1989, the Palace Hotel terminated the employment of respondent

Santos and paid all benefits due him, including his plane fare back to the Philippines.
On October 3, 1989, respondent Santos was repatriated to the Philippines.
On October 24, 1989, respondent Santos, through his lawyer, Atty. Ednave wrote Mr.
Shmidt, demanding full compensation pursuant to the employment agreement.
On November 11, 1989, Mr. Shmidt replied, to wit: 17
"His service with the Palace Hotel, Beijing was not abruptly
terminated but we followed the one-month notice clause and Mr.
Santos received all benefits due him.
"For your information the Print Shop at the Palace Hotel is still not
operational and with a low business outlook, retrenchment in
various departments of the hotel is going on which is a normal
management practice to control costs.
"When going through the latest performance ratings, please also
be advised that his performance was below average and a
Chinese National who is doing his job now shows a better
approach.
"In closing, when Mr. Santos received the letter of notice, he hardly
showed up for work but still enjoyed free
accommodation/laundry/meals up to the day of his departure."
On February 20, 1990, respondent Santos filed a complaint for illegal dismissal with the
Arbitration Branch, National Capital Region, National Labor Relations Commission
(NLRC). He prayed for an award of nineteen thousand nine hundred and twenty-three
dollars (US$19,923.00) as actual damages, forty thousand pesos (P40,000.00) as
exemplary damages and attorney's fees equivalent to 20% of the damages prayed for.
The complaint named MHC, MHICL, the Palace Hotel and Mr. Shmidt as
respondents. DCSETa

252

The Palace Hotel and Mr. Shmidt were not served with summons and neither
participated in the proceedings before the Labor Arbiter. 18
On June 27, 1991, Labor Arbiter Ceferina J. Diosana, decided the case against
petitioners, thus: 19
"WHEREFORE, judgment is hereby rendered:
"1.directing all the respondents to pay complainant jointly and
severally;
"a)$20,820 US dollars or its equivalent in Philippine currency as
unearned salaries;
"b)P50,000.00 as moral damages;
"c)P40,000.00 as exemplary damages; and
"d)Ten (10) percent of the total award as attorney's fees.

Subsequently, Labor Arbiter Tumanon was re-assigned as trial Arbiter of the National
Capital Region, Arbitration Branch, and the case was transferred to Labor Arbiter Jose
G. de Vera. 24
On November 25, 1994, Labor Arbiter de Vera submitted his report. 25 He found that
respondent Santos was illegally dismissed from employment and recommended that he
be paid actual damages equivalent to his salaries for the unexpired portion of his
contract. 26
On December 15, 1994, the NLRC ruled in favor of private respondent, to wit: 27
"WHEREFORE, finding that the report and recommendations of
Arbiter de Vera are supported by substantial evidence, judgment is
hereby rendered, directing the respondents to jointly and severally
pay complainant the following computed contractual benefits: (1)
US$12,600.00 as salaries for the unexpired portion of the parties'
contract; (2) US$3,600.00 as extra four (4) months salary for the two
(2) years period (sic) of the parties' contract; (3) US$3,600.00 as
"14th month pay" for the aforesaid two (2) years contract stipulated
by the parties or a total of US$19,800.00 or its peso equivalent, plus
(4) attorney's fees of 10% of complainant's total award.

"SO ORDERED."
"SO ORDERED."
On July 23, 1991, petitioners appealed to the NLRC, arguing that the POEA, not the
NLRC had jurisdiction over the case.

On February 2, 1995, petitioners filed a motion for reconsideration arguing that Labor
Arbiter de Vera's recommendation had no basis in law and in fact.28

On August 28, 1992, the NLRC promulgated a resolution, stating: 20

On March 30, 1995, the NLRC denied the motion for reconsideration. 29
"WHEREFORE, let the appealed Decision be, as it is hereby,
declared null and void for want of jurisdiction. Complainant is
hereby enjoined to file his complaint with the POEA.

Hence, this petition. 30

"SO ORDERED."

On October 9, 1995, petitioners filed with this Court an urgent motion for the issuance of
a temporary restraining order and/or writ of preliminary injunction and a motion for the
annulment of the entry of judgment of the NLRC dated July 31, 1995. 31

On September 18, 1992, respondent Santos moved for reconsideration of the aforequoted resolution. He argued that the case was not cognizable by the POEA as he was
not an "overseas contract worker." 21
On May 31, 1993, the NLRC granted the motion and reversed itself. The NLRC directed
Labor Arbiter Emerson Tumanon to hear the case on the question of whether private
respondent was retrenched or dismissed. 22
On January 13, 1994, Labor Arbiter Tumanon completed the proceedings based on the
testimonial and documentary evidence presented to and heard by him. 23

On November 20, 1995, the Court denied petitioner's urgent motion. The Court required
respondents to file their respective comments, without giving due course to the
petition. 32
On March 8, 1996, the Solicitor General filed a manifestation stating that after going
over the petition and its annexes, they can not defend and sustain the position taken by
the NLRC in its assailed decision and orders. The Solicitor General prayed that he be
excused from filing a comment on behalf of the NLRC. 33
On April 30,1996, private respondent Santos filed his comment. 34

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On June 26, 1996, the Court granted the manifestation of the Solicitor General and
required the NLRC to file its own comment to the petition. 35

Tiannamen Square incident truly adversely affected operations of the Palace Hotel as
to justify respondent Santos' retrenchment.

On January 7, 1997, the NLRC filed its comment.

Principle of effectiveness, no power to execute decision. Even assuming that a

proper decision could be reached by the NLRC, such would not have any binding
effect against the employer, the Palace Hotel. The Palace Hotel is a corporation
incorporated under the laws of China and was not even served with summons.
Jurisdiction over its person was not acquired.

The petition is meritorious.

I. Forum Non-Conveniens
The NLRC was a seriously inconvenient forum.
We note that the main aspects of the case transpired in two foreign jurisdictions and the
case involves purely foreign elements. The only link that the Philippines has with the case
is that respondent Santos is a Filipino citizen. The Palace Hotel and MHICL are foreign
corporations. Not all cases involving our citizens can be tried here. ICTaEH
The employment contract. Respondent Santos was hired directly by the Palace Hotel,
a foreign employer, through correspondence sent to the Sultanate of Oman, where
respondent Santos was then employed. He was hired without the intervention of the
POEA or any authorized recruitment agency of the government. 36
Under the rule of forum non conveniens, a Philippine court or agency may assume
jurisdiction over the case if it chooses to do so provided: (1) that the Philippine court is
one to which the parties may conveniently resort to; (2) that the Philippine court is in a
position to make an intelligent decision as to the law and the facts; and (3) that the
Philippine court has or is likely to have power to enforce its decision. 37 The conditions
are unavailing in the case at bar.
Not Convenient. We fail to see how the NLRC is a convenient forum given that all the
incidents of the case from the time of recruitment, to employment to dismissal
occurred outside the Philippines. The inconvenience is compounded by the fact that
the proper defendants, the Palace Hotel and MHICL are not nationals of the Philippines.
Neither are they "doing business in the Philippines." Likewise, the main witnesses, Mr.
Shmidt and Mr. Henk are non-residents of the Philippines.
No power to determine applicable law. Neither can an intelligent decision be made
as to the law governing the employment contract as such was perfected in foreign soil.
This calls to fore the application of the principle of lex loci contractus (the law of the
place where the contract was made). 38
The employment contract was not perfected in the Philippines. Respondent Santos
signified his acceptance by writing a letter while he was in the Republic of Oman. This
letter was sent to the Palace Hotel in the People's Republic of China.
No power to determine the facts. Neither can the NLRC determine the facts
surrounding the alleged illegal dismissal as all acts complained of took place in Beijing,
People's Republic of China. The NLRC was not in a position to determine whether the

This is not to say that Philippine courts and agencies have no power to solve
controversies involving foreign employers. Neither are we saying that we do not have
power over an employment contract executed in a foreign country. If Santos were an
"overseas contract worker," a Philippine forum, specifically the POEA, not the NLRC,
would protect him. 39 He is not an "overseas contract worker" a fact which he admits
with conviction. 40
Even assuming that the NLRC was the proper forum, even on the merits,
the NLRC's decision cannot be sustained.
II. MHC Not Liable
Even if we assume two things: (1) that the NLRC had jurisdiction over the case, and (2)
that MHICL was liable for Santos' retrenchment, still MHC, as a separate and distinct
juridical entity cannot be held liable.

True, MHC is an incorporator of MHICL and owns fifty percent (50%) of its capital stock.
However, this is not enough to pierce the veil of corporate fiction between MHICL and
MHC.
Piercing the veil of corporate entity is an equitable remedy. It is resorted to when the
corporate fiction is used to defeat public convenience, justify wrong, protect fraud or
defend a crime. 41 It is done only when a corporation is a mere alter ego or business
conduit of a person or another corporation.
In Traders Royal Bank v. Court of Appeals, 42 we held that "the mere ownership by a
single stockholder or by another corporation of all or nearly all of the capital stock of a
corporation is not of itself a sufficient reason for disregarding the fiction of separate
corporate personalities."
The tests in determining whether the corporate veil may be pierced are: First, the
defendant must have control or complete domination of the other corporation's
finances, policy and business practices with regard to the transaction attacked. There
must be proof that the other corporation had no separate mind, will or existence with
respect the act complained of. Second, control must be used by the defendant to
commit fraud or wrong. Third, the aforesaid control or breach of duty must be the

254

proximate cause of the injury or loss complained of. The absence of any of the elements
prevents the piercing of the corporate veil. 43
It is basic that a corporation has a personality separate and distinct from those
composing it as well as from that of any other legal entity to which it may be
related. 44 Clear and convincing evidence is needed to pierce the veil of corporate
fiction. 45 In this case, we find no evidence to show that MHICL and MHC are one and
the same entity. DSHTaC
III. MHICL not Liable
Respondent Santos predicates MHICL's liability on the fact that MHICL "signed" his
employment contract with the Palace Hotel. This fact fails to persuade us.
First, we note that the Vice President (Operations and Development) of MHICL, Miguel
D. Cergueda signed the employment contract as a mere witness. He merely signed
under the word "noted."
When one "notes" a contract, one is not expressing his agreement or approval, as a
party would. 46 In Sichangco v. Board of Commissioners of Immigration, 47 the Court
recognized that the term "noted" means that the person so noting has merely taken
cognizance of the existence of an act or declaration, without exercising a judicious
deliberation or rendering a decision on the matter.
Mr. Cergueda merely signed the "witnessing part" of the document. The "witnessing part"
of the document is that which, "in a deed or other formal instrument is that part
which comes after the recitals, or where there are no recitals, after the parties (italics
ours)." 48 As opposed to a party to a contract, a witness is simply one who, "being
present, personally sees or perceives a thing; a beholder, a spectator, or
eyewitness." 49 One who "notes" something just makes a "brief written statement" 50 a
memorandum or observation.
Second, and more importantly, there was no existing employer-employee relationship
between Santos and MHICL. In determining the existence of an employer-employee
relationship, the following elements are considered: 51
"(1)the selection and engagement of the employee;
"(2)the payment of wages;
"(3)the power to dismiss; and
"(4)the power to control employee's conduct."
MHICL did not have and did not exercise any of the aforementioned powers. It
did not select respondent Santos as an employee for the Palace Hotel. He was referred
to the Palace Hotel by his friend, Nestor Buenio. MHICL did not engage respondent

Santos to work. The terms of employment were negotiated and finalized through
correspondence between respondent Santos, Mr. Schmidt and Mr. Henk, who were
officers and representatives of the Palace Hotel and not MHICL. Neither did respondent
Santos adduce any proof that MHICL had the power to control his conduct. Finally, it
was the Palace Hotel, through Mr. Schmidt and not MHICL that terminated respondent
Santos' services.
Neither is there evidence to suggest that MHICL was a "labor-only contractor." 52 There
is no proof that MHICL "supplied" respondent Santos or even referred him for
employment to the Palace Hotel.
Likewise, there is no evidence to show that the Palace Hotel and MHICL are one and
the same entity. The fact that the Palace Hotel is a member of the "Manila Hotel Group"
is not enough to pierce the corporate veil between MHICL and the Palace Hotel.
IV. Grave Abuse of Discretion
Considering that the NLRC was forum non-conveniens and considering further that no
employer-employee relationship existed between MHICL, MHC and respondent Santos,
Labor Arbiter Ceferina J. Diosana clearly had no jurisdiction over respondent's claim in
NLRC NCR Case No. 00-02-01058-90. AaCcST
Labor Arbiters have exclusive and original jurisdiction only over the following: 53
"1.Unfair labor practice cases;
"2.Termination disputes;
"3.If accompanied with a claim for reinstatement, those cases that
workers may file involving wages, rates of pay, hours of work and
other terms and conditions of employment;
"4.Claims for actual, moral, exemplary and other forms of damages
arising from employer-employee relations;
"5.Cases arising from any violation of Article 264 of this Code,
including questions involving legality of strikes and lockouts; and
"6.Except claims for Employees Compensation, Social Security,
Medicare and maternity benefits, all other claims, arising from
employer-employee relations, including those of persons in
domestic or household service, involving an amount exceeding
five thousand pesos (P5,000.00) regardless of whether
accompanied with a claim for reinstatement."
In all these cases, an employer-employee relationship is an indispensable jurisdictional
requirement.

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The jurisdiction of labor arbiters and the NLRC under Article 217 of the Labor Code is
limited to disputes arising from an employer-employee relationship which can be
resolved by reference to the Labor Code, or other labor statutes, or their collective
bargaining agreements. 54

Sought to be reversed in the instant petition for review on certiorari under Rule 45 of the
Rules of Court are the decision 1 of public respondent Court of Appeals in CA G.R. CV
No. 51094, promulgated on 30 September 1997 and its resolution, 2 dated 22 May 1998,
denying petitioner's motion for reconsideration.

"To determine which body has jurisdiction over the present controversy, we rely on the
sound judicial principle that jurisdiction over the subject matter is conferred by law and
is determined by the allegations of the complaint irrespective of whether the plaintiff is
entitled to all or some of the claims asserted therein." 55

Petitioner Bank of America NT & SA (BANTSA) is an international banking and financing

institution duly licensed to do business in the Philippines, organized and existing under
and by virtue of the laws of the State of California, United States of America while
private respondent American Realty Corporation (ARC) is a domestic corporation.

The lack of jurisdiction of the Labor Arbiter was obvious from the allegations of the
complaint. His failure to dismiss the case amounts to grave abuse of discretion. 56

Bank of America International Limited (BAIL), on the other hand, is a limited liability
company organized and existing under the laws of England.

V. The Fallo
WHEREFORE, the Court hereby GRANTS the petition for certiorari and ANNULS the orders
and resolutions of the National Labor Relations Commission dated May 31, 1993,
December 15, 1994 and March 30, 1995 in NLRC NCR CA No. 002101-91 (NLRC NCR
Case No. 00-02-01058-90).
No costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Kapunan, and Ynares-Santiago, JJ., concur.
SECOND DIVISION
[G.R. No. 133876. December 29, 1999.]
13. BANK OF AMERICA, NT and SA, petitioner, vs. AMERICAN REALTY
CORPORATION and COURT OF APPEALS, respondents.
Agcaoili & Associates for petitioner.
William R. Veto for private respondent.
DECISION
BUENA, J p:
Does a mortgage-creditor waive its remedy to foreclose the real estate mortgage
constituted over a third party mortgagor's property situated in the Philippines by filing an
action for the collection of the principal loan before foreign courts? cdrep

As borne by the records, BANTSA and BAIL on several occasions granted three major
multi-million United States (US) Dollar loans to the following corporate borrowers: (1)
Liberian Transport Navigation, S.A.; (2) El Challenger S.A. and (3) Eshley Compania
Naviera S.A. (hereinafter collectively referred to as "borrowers"), all of which are existing
under and by virtue of the laws of the Republic of Panama and are foreign affiliates of
private respondent. 3
Due to the default in the payment of the loan amortizations, BANTSA and the corporate
borrowers signed and entered into restructuring agreements. As additional security for
the restructured loans, private respondent ARC as third party mortgagor executed two
real estate mortgages, 4 dated 17 February 1983 and 20 July 1984, over its parcels of
land including improvements thereon, located at Barrio Sto. Cristo, San Jose Del Monte,
Bulacan, and which are covered by Transfer Certificate of Title Nos. T-78759, T-78760, T78761, T-78762 and T-78763. Cdpr
Eventually, the corporate borrowers defaulted in the payment of the restructured loans
prompting petitioner BANTSA to file civil actions 5 before foreign courts for the collection
of the principal loan, to wit:
"a)In England, in its High Court of Justice, Queen's Bench Division,
Commercial Court (1992-Folio No. 2098) against Liberian
Transport Navigation S.A., Eshley Compania Naviera S.A.,
El Challenger S.A., Espriona Shipping Company S.A., Eddie
Navigation Corp., S.A., Eduardo Katipunan Litonjua and
Aurelio Katipunan Litonjua on June 17, 1992.
b)In England, in its High Court of Justice, Queen's Bench Division,
Commercial Court (1992-Folio No. 2245) against El
Challenger S.A., Espriona Shipping Company S.A.,
Eduardo Katipuan Litonjua & Aurelio Katipunan Litonjua
on July 2, 1992; cdrep
c)In Hongkong, in the Supreme Court of Hongkong High Court
(Action No. 4039 of 1992) against Eshley Compania
Naviera S.A., El Challenger S.A., Espriona Shipping

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Company S.A. Pacific Navigators Corporation, Eddie

Navigation Corporation S.A., Litonjua Chartering (Edyship)
Co., Inc., Aurelio Katipunan Litonjua, Jr. and Eduardo
Katipunan Litonjua on November 19, 1992; and
d)In Hongkong, in the Supreme Court of Hongkong High Court
(Action No. 4040 of 1992) against Eshley Compania
Naviera S.A., El Challenger S.A., Espriona Shipping
Company, S.A., Pacific Navigators Corporation, Eddie
Navigation Corporation S.A., Litonjua Chartering (Edyship)
Co., Jr. and Eduardo Katipunan Litonjua on November 21,
1992."
In the civil suits instituted before the foreign courts, private respondent ARC, being a
third party mortgagor, was not impleaded as party-defendant.
On 16 December 1992, petitioner BANTSA filed before the Office of the Provincial Sheriff
of Bulacan, Philippines, an application for extrajudicial foreclosure 6 of real estate
mortgage. cdasia
On 22 January 1993, after due publication and notice, the mortgaged real properties
were sold at public auction in an extrajudicial foreclosure sale, with Integrated Credit
and Corporation Services Co. (ICCS) as the highest bidder for the sum of Twenty Four
Million Pesos (P24,000,000.00). 7
On 12 February 1993, private respondent filed before the Pasig Regional Trial Court,
Branch 159, an action for damages 8 against the petitioner, for the latter's act of
foreclosing extrajudicially the real estate mortgages despite the pendency of civil suits
before foreign courts for the collection of the principal loan.
In its answer 9 petitioner alleged that the rule prohibiting the mortgagee from
foreclosing the mortgage after an ordinary suit for collection has been filed, is not
applicable in the present case, claiming that:
"a)The plaintiff, being a mere third party mortgagor and not a
party to the principal restructuring agreements, was never made a
party defendant in the civil cases filed in Hongkong and England;
"b)There is actually no civil suit for sum of money filed in the
Philippines since the civil actions were filed in Hongkong and
England. As such, any decisions (sic) which may be rendered in the
abovementioned courts are not (sic) enforceable in the Philippines
unless a separate action to enforce the foreign judgments is first
filed in the Philippines, pursuant to Rule 39, Section 50 of the
Revised Rules of Court. prLL

"c)Under English Law, which is the governing law under the

principal agreements, the mortgagee does not lose its security
interest by filing civil actions for sums of money."
On 14 December 1993, private respondent filed a motion for suspension 10 of the
redemption period on the ground that "it cannot exercise said right of redemption
without at the same time waiving or contradicting its contentions in the case that the
foreclosure of the mortgage on its properties is legally improper and therefore invalid."
In an order 11 dated 28 January 1994, the trial court granted the private respondent's
motion for suspension after which a copy of said order was duly received by the
Register of Deeds of Meycauayan, Bulacan.
On 07 February 1994, ICCS, the purchaser of the mortgaged properties at the
foreclosure sale, consolidated its ownership over the real properties, resulting to the
issuance of Transfer Certificate of Title Nos. T-18627, T-186272, T-186273, T-16471 and T16472 in its name.
On 18 March 1994, after the consolidation of ownership in its favor, ICCS sold the real
properties to Stateland Investment Corporation for the amount of Thirty Nine Million
Pesos (P39,000,000.00). 12 Accordingly, Transfer Certificate of Title Nos. T-187781(m), T187782(m), T-187783(m), T-16653P(m) and T-16652P(m) were issued in the latter's
name. prLL
After trial, the lower court rendered a decision 13 in favor of private respondent ARC
dated 12 May 1993, the decretal portion of which reads:
"WHEREFORE, judgment is hereby rendered declaring that the filing
in foreign courts by the defendant of collection suits against the
principal debtors operated as a waiver of the security of the
mortgages. Consequently, the plaintiff's rights as owner and
possessor of the properties then covered by Transfer Certificates of
Title Nos. T-78759, T-78762, T-78763, T-78760 and T-78761, all of the
Register of Deeds of Meycauayan, Bulacan, Philippines, were
violated when the defendant caused the extrajudicial foreclosure
of the mortgages constituted thereon.
"Accordingly, the defendant is hereby ordered to pay the plaintiff
the following sums, all with legal interest thereon from the date of
the filing of the complaint up to the date of actual payment:
"1)Actual or compensatory damages in the amount of Ninety Nine
Million Pesos (P99,000,000.00); cdtai
"2)Exemplary damages in the amount of Five Million Pesos
(P5,000,000.00); and

257

"3)Costs of suit.
"SO ORDERED."
On appeal, the Court of Appeals affirmed the assailed decision of the lower court
prompting petitioner to file a motion for reconsideration which the appellate court
denied.
Hence, the instant petition for review 14 on certiorari where herein petitioner BANTSA
ascribes to the Court of Appeals the following assignment of errors:
1.The Honorable Court of Appeals disregarded the doctrines laid
down by this Hon. Supreme Court in the cases of Caltex
Philippines, Inc. vs.Intermediate Appellate
Court docketed as G.R. No. 74730 promulgated on
August 25, 1989 and Philippine Commercial International
Bank vs. IAC, 196 SCRA 29 (1991 case), although said
cases were duly cited, extensively discussed and
specifically mentioned, as one of the issues in the
assignment of errors found on page 5 of the decision
dated September 30, 1997. Cdpr
2.The Hon. Court of Appeals acted with grave abuse of discretion
when it awarded the private respondent actual and
exemplary damages totalling P171,600,000.00, as of July
12, 1998 although such huge amount was not asked nor
prayed for in private respondent's complaint, is contrary
to law and is totally unsupported by evidence (sic).
In fine, this Court is called upon to resolve two main issues:
1.Whether or not the petitioner's act of filing a collection suit
against the principal debtors for the recovery of the loan
before foreign courts constituted a waiver of the remedy
of foreclosure.
2.Whether or not the award by the lower court of actual and
exemplary damages in favor of private respondent ARC,
as third-party mortgagor, is proper.
The petition is bereft of merit.
First, as to the issue of availability of remedies, petitioner submits that a waiver of the
remedy of foreclosure requires the concurrence of two requisites: an ordinary civil
action for collection should be filed and subsequently a final judgment be
correspondingly rendered therein. cdrep

According to petitioner, the mere filing of a personal action to collect the principal loan
does not suffice; a final judgment must be secured and obtained in the personal action
so that waiver of the remedy of foreclosure may be appreciated. To put it differently,
absent any of the two requisites, the mortgagee-creditor is deemed not to have waived
the remedy of foreclosure.
We do not agree.
Certainly, this Court finds petitioner's arguments untenable and upholds the
jurisprudence laid down in Bachrach 15 and similar cases adjudicated thereafter, thus:
"In the absence of express statutory provisions, a mortgage creditor
may institute against the mortgage debtor either a personal action
for debt or a real action to foreclose the mortgage. In other words,
he may pursue either of the two remedies, but not both. By such
election, his cause of action can by no means be impaired, for
each of the two remedies is complete in itself. Thus, an election to
bring a personal action will leave open to him all the properties of
the debtor for attachment and execution, even including the
mortgaged property itself. And, if he waives such personal action
and pursues his remedy against the mortgaged property, an
unsatisfied judgment thereon would still give him the right to sue for
a deficiency judgment, in which case, all the properties of the
defendant, other than the mortgaged property, are again open to
him for the satisfaction of the deficiency. In either case, his remedy
is complete, his cause of action undiminished, and any
advantages attendant to the pursuit of one or the other remedy
are purely accidental and are all under his right of election. On the
other hand, a rule that would authorize the plaintiff to bring a
personal action against the debtor and simultaneously or
successively another action against the mortgaged property,
would result not only in multiplicity of suits so offensive to justice
(Soriano vs. Enriques, 24 Phil. 584) and obnoxious to law and equity
(Osorio vs. San Agustin, 25 Phil., 404), but also in subjecting the
defendant to the vexation of being sued in the place of his
residence or of the residence of the plaintiff, and then again in the
place where the property lies." LexLib
In Danao vs. Court of Appeals, 16 this Court, reiterating jurisprudence enunciated
in Manila Trading and Supply Co. vs. Co Kim 17 and Movido vs. RFC, 18invariably held:
". . . The rule is now settled that a mortgage creditor may elect to
waive his security and bring, instead, an ordinary action to recover
the indebtedness with the right to execute a judgment thereon on
all the properties of the debtor, including the subject matter of the
mortgage . . .,subject to the qualification that if he fails in the
remedy by him elected, he cannot pursue further the remedy he
has waived. (Underscoring Ours)

258

Anent real properties in particular, the Court has laid down the rule that a mortgage
creditor may institute against the mortgage debtor either a personal action for debt or
a real action to foreclose the mortgage. 19
In our jurisdiction, the remedies available to the mortgage creditor are deemed
alternative and not cumulative. Notably, an election of one remedy operates as a
waiver of the other. For this purpose, a remedy is deemed chosen upon the filing of the
suit for collection or upon the filing of the complaint in an action for foreclosure of
mortgage, pursuant to the provision of Rule 68 of the 1997 Rules of Civil Procedure. As to
extrajudicial foreclosure, such remedy is deemed elected by the mortgage creditor
upon filing of the petition not with any court of justice but with the Office of the Sheriff of
the province where the sale is to be made, in accordance with the provisions of Act No.
3135, as amended by Act No. 4118. cdphil
In the case at bench, private respondent ARC constituted real estate mortgages over
its properties as security for the debt of the principal debtors. By doing so, private
respondent subjected itself to the liabilities of a third party mortgagor. Under the law,
third persons who are not parties to a loan may secure the latter by pledging or
mortgaging their own property. 20
Notwithstanding, there is no legal provision nor jurisprudence in our jurisdiction which
makes a third person who secures the fulfillment of another's obligation by mortgaging
his own property, to be solidarily bound with the principal obligor. The signatory to the
principal contract loan remains to be primarily bound. It is only upon default of the
latter that the creditor may have recourse on the mortgagors by foreclosing the
mortgaged properties in lieu of an action for the recovery of the amount of the loan. 21
In the instant case, petitioner's contention that the requisites of filing the action for
collection and rendition of final judgment therein should concur, is untenable. cda
Thus, in Cerna vs. Court of Appeals, 22 we agreed with the petitioner in said case, that
the filing of a collection suit barred the foreclosure of the mortgage:
"A mortgagee who files a suit for collection abandons the remedy
of foreclosure of the chattel mortgage constituted over the
personal property as security for the debt or value of the promissory
note when he seeks to recover in the said collection suit."
". . . When the mortgagee elects to file a suit for collection, not
foreclosure, thereby abandoning the chattel mortgage as basis for
relief, he clearly manifests his lack of desire and interest to go after
the mortgaged property as security for the promissory note . . . ."
Contrary to petitioner's arguments, we therefore reiterate the rule, for clarity and
emphasis, that the mere act of filing of an ordinary action for collection operates as a
waiver of the mortgage-creditor's remedy to foreclose the mortgage. By the mere filing
of the ordinary action for collection against the principal debtors, the petitioner in the
present case is deemed to have elected a remedy, as a result of which a waiver of the

other necessarily must arise. Corollarily, no final judgment in the collection suit is required
for the rule on waiver to apply. cdll
Hence, in Caltex Philippines, Inc. vs. Intermediate Appellate Court, 23 a case relied
upon by petitioner, supposedly to buttress its contention, this Court had occasion to rule
that the mere act of filing a collection suit for the recovery of a debt secured by a
mortgage constitutes waiver of the other remedy of foreclosure.
In the case at bar, petitioner BANTSA only has one cause of action which is nonpayment of the debt. Nevertheless, alternative remedies are available for its enjoyment
and exercise. Petitioner then may opt to exercise only one of two remedies so as not to
violate the rule against splitting a cause of action.
As elucidated by this Court in the landmark case of Bachrach Motor Co.,
Inc. vs. Icarangal. 24
"For non-payment of a note secured by mortgage, the creditor has
a single cause of action against the debtor. This single cause of
action consists in the recovery of the credit with execution of the
security. In other words, the creditor in his action may make two
demands, the payment of the debt and the foreclosure of his
mortgage. But both demands arise from the same cause, the nonpayment of the debt, and for that reason, they constitute a single
cause of action. Though the debt and the mortgage constitute
separate agreements, the latter is subsidiary to the former, and
both refer to one and the same obligation. Consequently, there
exists only one cause of action for a single breach of that
obligation. Plaintiff, then, by applying the rules above stated,
cannot split up his single cause of action by filing a complaint for
payment of the debt, and thereafter another complaint for
foreclosure of the mortgage. If he does so, the filing of the first
complaint will bar the subsequent complaint. By allowing the
creditor to file two separate complaints simultaneously or
successively, one to recover his credit and another to foreclose his
mortgage, we will, in effect, be authorizing him plural redress for a
single breach of contract at so much cost to the courts and with so
much vexation and oppression to the debtor." prcd
Petitioner further faults the Court of Appeals for allegedly disregarding the doctrine
enunciated in Caltex, wherein this High Court relaxed the application of the general
rules to wit:
"In the present case, however, we shall not follow this rule to the
letter but declare that it is the collection suit which was waived
and/or abandoned. This ruling is more in harmony with the
principles underlying our judicial system. It is of no moment that the
collection suit was filed ahead, what is determinative is the fact

259

that the foreclosure proceedings ended even before the decision

in the collection suit was rendered. . . ."
Notably, though, petitioner took the Caltex ruling out of context. We must stress that the
Caltex case was never intended to overrule the well-entrenched doctrine enunciated in
Bachrach, which to our mind still finds applicability in cases of this sort. To reiterate,
Bachrach is still good law.
We then quote the decision 25 of the trial court, in the present case, thus:

"The aforequoted ruling in Caltex is the exception rather than the

rule, dictated by the peculiar circumstances obtaining therein. In
the said case, the Supreme Court chastised Caltex for making ". .
. a mockery of our judicial system when it initially filed a collection
suit then, during the pendency thereof, foreclosed extrajudicially
the mortgaged property which secured the indebtedness, and still
pursued the collection suit to the end." Thus, to prevent a mockery
of our judicial system", the collection suit had to be
nullified because the foreclosure proceedings have already been
pursued to their end and can no longer be undone.
xxx xxx xxx
"In the case at bar, it has not been shown whether the defendant
pursued to the end or are still pursuing the collection suits filed in
foreign courts. There is no occasion, therefore, for this court to
apply the exception laid down by the Supreme Court in Caltex, by
nullifying the collection suits. Quite obviously, too, the aforesaid
collection suits are beyond the reach of this Court. Thus the only
way the court may prevent the specter of a creditor having "plural
redress for a single breach of contract" is by holding, as the Court
hereby holds, that the defendant has waived the right to foreclose
the mortgages constituted by the plaintiff on its properties originally
covered by Transfer Certificates of Title Nos. T-78759, T-78762, T78760 and T-78761." (RTC Decision pp., 10-11)
In this light, the actuations of Caltex are deserving of severe criticism, to say the least. 26
Moreover, petitioner attempts to mislead this Court by citing the case of PCIB
vs. IAC. 27 Again, petitioner tried to fit a square peg in a round hole. It must be stressed
that far from overturning the doctrine laid down in Bachrach, this Court in PCIB
buttressed its firm stand on this issue by declaring:
"While the law allows a mortgage creditor to either institute a
personal action for the debt or a real action to foreclosure the

mortgage, he cannot pursue both remedies simultaneously or

successively as was done by PCIB in this case." LibLex
xxx xxx xxx
"Thus, when the PCIB filed Civil Case No. 29392 to enforce payment
of the 1.3 million promissory note secured by real estate mortgages
and subsequently filed a petition for extrajudicial foreclosure, it
violates the rule against splitting a cause of action."
Accordingly, applying the foregoing rules, we hold that petitioner, by the expediency of
filing four civil suits before foreign courts, necessarily abandoned the remedy to
foreclose the real estate mortgages constituted over the properties of third-party
mortgagor and herein private respondent ARC. Moreover, by filing the four civil actions
and by eventually foreclosing extrajudicially the mortgages, petitioner in effect
transgressed the rules against splitting a cause of action well-enshrined in jurisprudence
and our statute books. LibLex
In Bachrach, this Court resolved to deny the creditor the remedy of foreclosure after the
collection suit was filed, considering that the creditor should not be afforded "plural
redress for a single breach of contract." For cause of action should not be confused with
the remedy created for its enforcement. 28
Notably, it is not the nature of the redress which is crucial but the efficacy of the remedy
chosen in addressing the creditor's cause. Hence, a suit brought before a foreign court
having competence and jurisdiction to entertain the action is deemed, for this purpose,
to be within the contemplation of the remedy available to the mortgagee-creditor. This
pronouncement would best serve the interest of justice and fair play and further
discourage the noxious practice of splitting up a lone cause of action.
Incidentally, BANTSA alleges that under English Law, which according to petitioner is the
governing law with regard to the principal agreements, the mortgagee does not lose its
security interest by simply filing civil actions for sums of money. 29
We rule in the negative. LLphil
This argument shows desperation on the part of petitioner to rivet its crumbling cause. In
the case at bench, Philippine law shall apply notwithstanding the evidence presented
by petitioner to prove the English law on the matter.
In a long line of decisions, this Court adopted the well-imbedded principle in our
jurisdiction that there is no judicial notice of any foreign law. A foreign law must be
properly pleaded and proved as a fact. 30 Thus, if the foreign law involved is not
properly pleaded and proved, our courts will presume that the foreign law is the same
as our local or domestic or internal law. 31 This is what we refer to as the doctrine of
processual presumption.

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In the instant case, assuming arguendo that the English Law on the matter were
properly pleaded and proved in accordance with Section 24, Rule 132 of the Rules of
Court and the jurisprudence laid down in Yao Kee, et al. vs. Sy-Gonzales, 32 said foreign
law would still not find applicability.

of the appellate court in giving due weight to the appraisal report composed of twenty
three pages, signed by Mr. Lauro Marquez and submitted as evidence by private
respondent. The appraisal report, as the records would readily show, was corroborated
by the testimony of Mr. Reynaldo Flores, witness for private respondent.

Thus, when the foreign law, judgment or contract is contrary to a sound and established
public policy of the forum, the said foreign law, judgment or order shall not be
applied. 33

On this matter, the trial court observed:

Additionally, prohibitive laws concerning persons, their acts or property, and those
which have for their object public order, public policy and good customs shall not be
rendered ineffective by laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country. 34
The public policy sought to be protected in the instant case is the principle imbedded in
our jurisdiction proscribing the splitting up of a single cause of action. LibLex
Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent
"If two or more suits are instituted on the basis of the same cause of
action, the filing of one or a judgment upon the merits in any one is
available as a ground for the dismissal of the others."
Moreover, foreign law should not be applied when its application would work
undeniable injustice to the citizens or residents of the forum. To give justice is the most
important function of law; hence, a law, or judgment or contract that is obviously unjust
negates the fundamental principles of Conflict of Laws. 35
Clearly then, English Law is not applicable. Cdpr
As to the second pivotal issue, we hold that the private respondent is entitled to the
award of actual or compensatory damages inasmuch as the act of petitioner BANTSA
in extrajudicially foreclosing the real estate mortgages constituted a clear violation of
the rights of herein private respondent ARC, as third-party mortgagor.
Actual or compensatory damages are those recoverable because of pecuniary loss in
business, trade, property, profession, job or occupation and the same must be proved,
otherwise if the proof is flimsy and non-substantial, no damages will be given. 36 Indeed,
the question of the value of property is always a difficult one to settle as valuation of
real property is an imprecise process since real estate has no inherent value readily
ascertainable by an appraiser or by the court. 37 The opinions of men vary so much
concerning the real value of property that the best the courts can do is hear all of the
witnesses which the respective parties desire to present, and then, by carefully weighing
that testimony, arrive at a conclusion which is just and equitable. 38
In the instant case, petitioner assails the Court of Appeals for relying heavily on the
valuation made by Philippine Appraisal Company. In effect, BANTSA questions the act

"The record herein reveals that plaintiff-appellee formally offered as

evidence the appraisal report dated March 29, 1993 (Exhibit J,
Records, p. 409), consisting of twenty three (23) pages which set
out in detail the valuation of the property to determine its fair
market value (TSN, April 22, 1994, p. 4), in the amount of
P99,986,592.00 (TSN, ibid., p. 5), together with the corroborative
testimony of one Mr. Reynaldo F. Flores, an appraiser and director
of Philippine Appraisal Company, Inc. (TSN, ibid., p. 3). The latter's
testimony was subjected to extensive cross-examination by counsel
for defendant-appellant (TSN, April 22, 1994, pp. 6-22)." 39
In the matter of credibility of witnesses, the Court reiterates the familiar and wellentrenched rule that the factual findings of the trial court should be respected. 40 The
time-tested jurisprudence is that the findings and conclusions of the trial court on the
credibility of witnesses enjoy a badge of respect for the reason that trial courts have the
advantage of observing the demeanor of witnesses as they testify. 41
This Court will not alter the findings of the trial court on the credibility of witnesses,
principally because they are in a better position to assess the same than the appellate
court. 42 Besides, trial courts are in a better position to examine real evidence as well as
observe the demeanor of witnesses. 43
Similarly, the appreciation of evidence and the assessment of the credibility of witnesses
rest primarily with the trial court. 44 In the case at bar, we see no reason that would
justify this Court to disturb the factual findings of the trial court, as affirmed by the Court
of Appeals, with regard to the award of actual damages.
In arriving at the amount of actual damages, the trial courts justified the award by
presenting the following ratiocination in its assailed decision 45 , to wit:
"Indeed, the Court has its own mind in the matter of valuation. The
size of the subject real properties are (sic) set forth in their individual
titles, and the Court itself has seen the character and nature of
said properties during the ocular inspection it conducted. Based
principally on the foregoing, the Court makes the following
observations:
"1.The properties consist of about 39 hectares in Bo. Sto. Cristo, San
Jose del Monte, Bulacan, which is (sic) not distant from Metro
Manila the biggest urban center in the Philippines and are
easily accessible through well-paved roads;

261

"2.The properties are suitable for development into a subdivision for

low cost housing, as admitted by defendant's own appraiser (TSN,
May 30, 1994, p. 31);
"3.The pigpens which used to exist in the property have already
been demolished. Houses of strong materials are found in the
vicinity of the property (Exhs. 2, 2-1 to 2-7), and the vicinity is a
growing community. It has even been shown that the house of the
Barangay Chairman is located adjacent to the property in
question (Exh. 27), and the only remaining piggery (named Cherry
Farm) in the vicinity is about 2 kilometers away from the western
boundary of the property in question (TSN, November 19, p.
3); prcd
"4.It will not be hard to find interested buyers of the property, as
indubitably shown by the fact that on March 18, 1994, ICCS (the
buyer during the foreclosure sale) sold the consolidated real estate
properties to Stateland Investment Corporation, in whose favor
new titles were issued, i.e., TCT Nos. T-187781(m); T-187782(m), T187783(m); T-16653P(m) and T-166521(m) by the Register of Deeds
of Meycauayan (sic), Bulacan;
"5.The fact that ICCS was able to sell the subject properties to
Stateland Investment Corporation for Thirty Nine Million
(P39,000,000.00) Pesos, which is more than triple defendant's
appraisal (Exh. 2) clearly shows that the Court cannot rely on
defendant's aforesaid estimate (Decision, Records, p. 603)."
It is a fundamental legal aphorism that the conclusions of the trial judge on the
credibility of witnesses command great respect and consideration especially when the
conclusions are supported by the evidence on record. 46 Applying the foregoing
principle, we therefore hold that the trial court committed no palpable error in giving
credence to the testimony of Reynaldo Flores, who according to the records, is a
licensed real estate broker, appraiser and director of Philippine Appraisal Company,
Inc. since 1990. 47 As the records show, Flores had been with the company for 26 years
at the time of his testimony. prcd
Of equal importance is the fact that the trial court did not confine itself to the appraisal
report dated 29 March 1993, and the testimony given by Mr. Reynaldo Flores, in
determining the fair market value of the real property. Above all these, the record
would likewise show that the trial judge in order to appraise himself of the characteristics
and condition of the property, conducted an ocular inspection where the opposing
parties appeared and were duly represented.
Based on these considerations and the evidence submitted, we affirm the ruling of the
trial court as regards the valuation of the property

". . . a valuation of Ninety Nine Million Pesos (P99,000,000.00) for the

39-hectare properties (sic) translates to just about Two Hundred
Fifty Four Pesos (P254.00) per square meter. This appears to be, as
the court so holds, a better approximation of the fair market value
of the subject properties. This is the amount which should be
restituted by the defendant to the plaintiff by way of actual or
compensatory damages . . ." 48
Further, petitioner ascribes error to the lower court for awarding an amount allegedly
not asked nor prayed for in private respondent's complaint.
Notwithstanding the fact that the award of actual and compensatory damages by the
lower court exceeded that prayed for in the complaint, the same is nonetheless valid,
subject to certain qualifications. cda
On this issue, Rule 10, Section 5 of the Rules of Court is pertinent:
"SECTION 5.Amendment to conform to or authorize presentation of
evidence. When issues not raised by the pleadings are tried with
the express or implied consent of the parties, they shall be treated
in all respects as if they had been raised in the pleadings. Such
amendment of the pleadings as may be necessary to cause them
to conform to the evidence and to raise these issues may be made
upon motion of any party at any time, even after judgment; but
failure to amend does not affect the result of the trial of these
issues. If evidence is objected to at the trial on the ground that it is
not within the issues made by the pleadings, the court may allow
the pleadings to be amended and shall do so with liberality if the
presentation of the merits of the action and the ends of substantial
justice will be subserved thereby. The court may grant a
continuance to enable the amendment to be made."
The jurisprudence enunciated in Talisay-Silay Milling Co., Inc. vs. Asociacion de
Agricultures de Talisay-Silay, Inc. 49 citing Northern Cement Corporation
vs. Intermediate Appellate Court 50 is enlightening:
"There have been instances where the Court has held that even
without the necessary amendment, the amount proved at the trial
may be validly awarded, as in Tuazon v. Bolanos (95 Phil. 106),
where we said that if the facts shown entitled plaintiff to relief other
than that asked for, no amendment to the complaint was
necessary, especially where defendant had himself raised the
point on which recovery was based. The appellate court could
treat the pleading as amended to conform to the evidence
although the pleadings were actually not amended. Amendment
is also unnecessary when only clerical error or non substantial
matters are involved, as we held in Bank of the Philippine Islands
vs. Laguna (48 Phil. 5). In Co Tiamco vs. Diaz (75 Phil. 672), we

262

stressed that the rule on amendment need not be applied rigidly,

particularly where no surprise or prejudice is caused the objecting
party. And in the recent case of National Power Corporation
vs. Court of Appeals (113 SCRA 556), we held that where there is a
variance in the defendant's pleadings and the evidence adduced
by it at the trial, the Court may treat the pleading as amended to
conform with the evidence. prLL
"It is the view of the Court that pursuant to the above-mentioned
rule and in light of the decisions cited, the trial court should not be
precluded from awarding an amount higher than that claimed in
the pleading notwithstanding the absence of the required
amendment. But it is upon the condition that the evidence of such
higher amount has been presented properly, with full opportunity
on the part of the opposing parties to support their respective
contentions and to refute each other's evidence.
"The failure of a party to amend a pleading to conform to the
evidence adduced during trial does not preclude an adjudication
by the court on the basis of such evidence which may embody
new issues not raised in the pleadings, or serve as a basis for a
higher award of damages. Although the pleading may not have
been amended to conform to the evidence submitted during trial,
judgment may nonetheless be rendered, not simply on the basis of
the issues alleged but also on the basis of issues discussed and the
assertions of fact proved in the course of trial. The court may treat
the pleading as if it had been amended to conform to the
evidence, although it had not been actually so amended. Former
Chief Justice Moran put the matter in this way:
'When evidence is presented by one party, with the
expressed or implied consent of the adverse party, as to
issues not alleged in the pleadings, judgment may be
rendered validly as regards those issues, which shall be
considered as if they have been raised in the pleadings.
There is implied consent to the evidence thus presented
when the adverse party fails to object thereto.'
"Clearly, a court may rule and render judgment on the basis of the
evidence before it even though the relevant pleading had not
been previously amended, so long as no surprise or prejudice is
thereby caused to the adverse party. Put a little differently, so long
as the basis requirements of fair play had been met, as where
litigants were given full opportunity to support their respective
contentions and to object to or refute each other's evidence, the
court may validly treat the pleadings as if they had been
amended to conform to the evidence and proceed to adjudicate
on the basis of all the evidence before it."

In the instant case, in as much as the petitioner was afforded the opportunity to refute
and object to the evidence, both documentary and testimonial, formally offered by
private respondent, the rudiments of fair play are deemed satisfied. In fact, the
testimony of Reynaldo Flores was put under scrutiny during the course of the crossexamination. Under these circumstances, the court acted within the bounds of its
jurisdiction and committed no reversible error in awarding actual damages the amount
of which is higher than that prayed for. Verily, the lower court's actuations are
sanctioned by the Rules and supported by jurisprudence. prcd
Similarly, we affirm the grant of exemplary damages although the amount of Five Million
Pesos (P5,000,000.00) awarded, being excessive, is subject to reduction. Exemplary or
corrective damages are imposed, by way of example or correction for the public good,
in addition to the moral, temperate, liquidated or compensatory
damages. 51 Considering its purpose, it must be fair and reasonable in every case and
should not be awarded to unjustly enrich a prevailing party. 52 In our view, an award of
P50,000.00 as exemplary damages in the present case qualifies the test of
reasonableness.
WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The
decision of the Court of Appeals is hereby AFFIRMED with MODIFICATION of the amount
awarded as exemplary damages. Accordingly, petitioner is hereby ordered to pay
private respondent the sum of P99,000,000.00 as actual or compensatory damages;
P50,000.00 as exemplary damage and the costs of suit. LexLib
SO ORDERED.
Bellosillo, Mendoza, Quisumbing and De Leon, Jr., JJ., concur.
THIRD DIVISION
[G.R. No. 55960. November 24, 1988.]
14. YAO KEE, SZE SOOK WAH, SZE LAI CHO, and SY CHUN
YEN, petitioners, vs. AIDA SY-GONZALES, MANUEL SY, TERESITA SYBERNABE, RODOLFO SY, and HONORABLE COURT OF
APPEALS, respondents.
Montesa, Albon & Associates for petitioner.
De Lapa, Salonga, Fulgencio & De Lunas for respondents.
DECISION
CORTES, J p:

263

Sy Kiat, a Chinese national, died on January 17, 1977 in Caloocan City where he was
then residing, leaving behind real and personal properties here in the Philippines worth
P300,000.00 more or less.
Thereafter, Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy filed a
petition for the grant of letters of administration docketed as Special Proceedings Case
No. C-699 of the then Court of First Instance of Rizal Branch XXXIII, Caloocan City. In said
petition they alleged among others that (a) they are the children of the deceased with
Asuncion Gillego; (b) to their knowledge Sy Kiat died intestate; (c) they do not
recognize Sy Kiat's marriage to Yao Kee nor the filiation of her children to him; and, (d)
they nominate Aida Sy-Gonzales for appointment as administratrix of the intestate
estate of the deceased [Record on Appeal, pp. 4-9; Rollo, p. 107.]
The petition was opposed by Yao Kee, Sze Sook Wah, Sze Lai Cho and Sy Yun Chen who
alleged that: (a) Yao Kee is the lawful wife of Sy Kiat whom he married on January 19,
1931 in China; (b) the other oppositors are the legitimate children of the deceased with
Yao Kee; and, (c) Sze Sook Wah is the eldest among them and is competent, willing and
desirous to become the administratrix of the estate of Sy Kiat [Record on Appeal, pp.
12-13; Rollo, p. 107.]
After hearing, the probate court, finding among others that:
(1)Sy Kiat was legally married to Yao Kee [CFI decision, pp. 12-27;
Rollo, pp. 49-64;]
(2)Sze Sook Wah, Sze Lai Cho and Sze Chum Yen are the legitimate
children of Yao Kee with Sy Kiat [CFI decision, pp. 28-31; Rollo. pp.
65-68;] and,

whom he lived as husband and wife without benefit of marriage

for many years:
(2)Declaring oppositors Sze Sook Wah, Sze Lai Chu and Sze Chun
Yen, the acknowledged natural children of the deceased Sy Kiat
with his Chinese wife Yao Kee, also known as Yui Yip, since the
legality of the alleged marriage of Sy Kiat to Yao Kee in China had
not been proven to be valid to the laws of the Chinese People's
Republic of China (sic);
(3)Declaring the deed of sale executed by Sy Kiat on December 7,
1976 in favor of Tomas Sy (Exhibit "G-1", English translation of Exhibit
"G") of the Avenue Tractor and Diesel Parts Supply to be valid and
accordingly, said property should be excluded from the estate of
the deceased Sy Kiat; and
(4)Affirming the appointment by the lower court of Sze Sook Wah
as judicial administratrix of the estate of the deceased. [CA
decision, pp. 11-12; Rollo, pp. 36-37.]
From said decision both parties moved for partial reconsideration, which was however
denied by respondent court. They thus interposed their respective appeals to this Court.
Private respondents filed a petition with this Court docketed as G.R. No. 56045 entitled
"Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy v. Court of Appeals,
Yao Kee, Sze Sook Wah, Sze Lai Cho and Sy Chun Yen" questioning paragraphs (3) and
(4) of the dispositive portion of the Court of Appeals' decision. The Supreme Court
however resolved to deny the petition and the motion for reconsideration. Thus on
March 8, 1982 entry of judgment was made in G.R. No. 56045. *

(3)Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo

Sy are the acknowledged illegitimate offsprings of Sy Kiat with
Asuncion Gillego [CFI decision, pp. 27-28; Rollo, pp. 64-65.]
held in favor of the oppositors (petitioners herein) and appointed Sze Sook Wah as
the administratrix of the intestate estate of the deceased [CFI decision, pp. 68-69;
Rollo, pp. 106.]
On appeal the Court of Appeals rendered a decision modifying that of the probate
court, the dispositive portion of which reads:
IN VIEW OF THE FOREGOING, the decision of the lower Court is
hereby MODIFIED and SET ASIDE and a new judgment rendered as
follows:
(1)Declaring petitioners Aida Sy-Gonzales, Manuel Sy, Teresita SyBernabe and Rodolfo Sy acknowledged natural children of the
deceased Sy Kiat with Asuncion Gillego, an unmarried woman with

The instant petition, on the other hand, questions paragraphs (1) and (2) of the
dispositive portion of the decision of the Court of Appeals. This petition was initially
denied by the Supreme Court on June 22, 1981. Upon motion of the petitioners the
Court in a resolution dated September 16, 1981 reconsidered the denial and decided to
give due course to this petition.
Herein petitioners assign the following as errors:
I.RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN DECLARING
THE MARRIAGE OF SY KIAT TO YAO YEE AS NOT HAVE (sic) BEEN
PROVEN VALID IN ACCORDANCE WITH LAWS OF THE PEOPLE'S
REPUBLIC OF CHINA.
II.RESPONDENT COURT OF APPEALS GRAVELY ERRED IN DECLARING
AIDA SY-GONZALES, MANUEL SY, TERESITA SY-BERNABE AND

264

RODOLFO SY AS NATURAL CHILDREN OF SY KIAT WITH ASUNCION

GILLEGO. [Petition, p. 2; Rollo, p. 6.]
I.Petitioners argue that the marriage of Sy Kiat to Yao Kee in accordance with Chinese
law and custom was conclusively proven. To buttress this argument they rely on the
following testimonial and documentary evidence.
First, the testimony of Yao Kee summarized by the trial court as follows:
Yao Kee testified that she was married to Sy Kiat on January 19,
1931 in Fookien, China; that she does not have a marriage
certificate because the practice during that time was for elders to
agree upon the betrothal of their children, and in her case, her
elder brother was the one who contracted or entered into [an]
agreement with the parents of her husband; that the agreement
was that she and Sy Kiat would be married, the wedding date was
set, and invitations were sent out; that the said agreement was
complied with; that she has five children with Sy Kiat, but two of
them died; that those who are alive are Sze Sook Wah, Sze Lai Cho,
and Sze Chun Yen, the eldest being Sze Sook Wah who is already
38 years old; that Sze Sook Wah was born on November 7, 1939;
that she and her husband, Sy Kiat, have been living in Fookien,
China before he went to the Philippines on several occasions; that
the practice during the time of her marriage was a written
document [is exchanged] just between the parents of the bride
and the parents of the groom, or any elder for that matter; that in
China, the custom is that there is a go-between, a sort of marriage
broker who is known to both parties who would talk to the parents
of the bride-to-be; that if the parents of the bride-to-be agree to
have the groom-to-be their son-in-law, then they agree on a date
as an engagement day; that on engagement day, the parents of
the groom would bring some pieces of jewelry to the parents of the
bride-to-be, and then one month after that, a date would be set
for the wedding, which in her case, the wedding date to Sy Kiat
was set on January 19, 1931; that during the wedding the
bridegroom brings with him a couch (sic) where the bride would
ride and on that same day, the parents of the bride would give the
dowry for her daughter and then the document would be signed
by the parties but there is no solemnizing officer as is known in the
Philippines; that during the wedding day, the document is signed
only by the parents of the bridegroom as well as by the parents of
the bride; that the parties themselves do not sign the document;
that the bride would then be placed in a carriage where she
would be brought to the town of the bridegroom and before
departure the bride would be covered with a sort of a veil; that
upon reaching the town of the bridegroom, the bridegroom takes
away the veil; that during her wedding to Sy Kiat (according to
said Chinese custom), there were many persons present; that after
Sy Kiat opened the door of the carriage, two old ladies helped her

go down the carriage and brought her inside the house of Sy Kiat;
that during her wedding, Sy Chiok, the eldest brother of Sy Kiat,
signed the document with her mother; that as to the whereabouts
of that document, she and Sy Kiat were married for 46
years already and the document was left in China and she doubt if
that document can still be found now; that it was left in the
possession of Sy Kiat's family; that right now, she does not know the
whereabouts of that document because of the lapse of many
years and because they left it in a certain place and it was already
eaten by the termites; that after her wedding with Sy Kiat, they
lived immediately together as husband and wife, and from then
on, they lived together; that Sy Kiat went to the Philippines
sometime in March or April in the same year they were married;
that she went to the Philippines in 1970, and then came back to
China; that again she went back to the Philippines and lived with
Sy Kiat as husband and wife; that she begot her children with Sy
Kiat during the several trips by Sy Kiat made back to China. [CFI
decision, pp. 13-15; Rollo, pp. 50-52.]
Second, the testimony of Gan Ching, a younger brother of Yao Kee who stated that he
was among the many people who attended the wedding of his sister with Sy Kiat and
that no marriage certificate is issued by the Chinese government, a document signed
by the parents or elders of the parties being sufficient [CFI decision, pp. 15-16; Rollo, pp.
52-53.]
Third, the statements made by Asuncion Gillego when she testified before the trial court
to the effect that (a) Sy Kiat was married to Yao Kee according to Chinese custom;
and, (b) Sy Kiat's admission to her that he has a Chinese wife whom he married
according to Chinese custom [CFI decision, p. 17; Rollo, p. 54.]
Fourth, Sy Kiat's Master Card of Registered Alien issued in Caloocan City on October 3,
1972 where the following entries are found: "Marital status Married"; "If married give
name of spouse Yao Kee"; "Address China"; "Date of marriage 1931"; and "Place
of marriage China" [Exhibit "SS-1".]
Fifth, Sy Kiat's Alien Certificate of Registration issued in Manila on January 12, 1968 where
the following entries are likewise found: "Civil status Married"; and, "If married, state
name and address of spouse Yao Kee Chingkang, China" [Exhibit "4".]
And lastly, the certification issued in Manila on October 28, 1977 by the Embassy of the
People's Republic of China to the effect that "according to the information available at
the Embassy Mr. Sy Kiat a Chinese national and Mrs. Yao Kee alias Yui Yip also Chinese
were married on January 19, 1931 in Fukien, the People's Republic of China" [Exhibit "5".]
These evidence may very well prove the fact of marriage between Yao Kee and Sy
Kiat. However, the same do not suffice to establish the validity of said marriage in
accordance with Chinese law or custom.

265

Custom is defined as "a rule of conduct formed by repetition of acts, uniformly observed
(practiced) as a social rule, legally binding and obligatory" [In the Matter of the Petition
for Authority to Continue Use of the Firm Name "Ozaeta, Romulo, de Leon, Mabanta
and Reyes", July 30, 1979, SCRA 3, 12 citing JBL Reyes & RC Puno, Outline of Phil. Civil
Law, Fourth Ed. Vol. 1, p. 7.] The law requires that "a custom must be proved as a fact,
according to the rules of evidence" [Article 12, Civil Code.] On this score the Court had
occasion to state that "a local custom as a source of right can not be considered by a
court of justice unless such custom is properly established by competent evidence like
any other fact" [Patriarca v. Orate, 7 Phil. 390, 395 (1907).] The same evidence, if not
one of a higher degree, should be required of a foreign custom.
The law on foreign marriages is provided by Article 71 of the Civil Code which states
that:
Art. 71.All marriages performed outside the Philippines in
accordance with the laws in force in the country where they were
performed, and valid there as such, shall also be valid in this
country, except bigamous, polygamous, or incestuous marriages,
as determined by Philippine law. (Emphasis supplied.) **
Construing this provision of law the Court has held that to establish a valid foreign
marriage two things must be proven, namely: (1) the existence of the foreign law as a
question of fact; and (2) the alleged foreign marriage by convincing evidence [Adong
v. Cheong Seng Gee, 43 Phil. 43, 49 (1922).]
In proving a foreign law the procedure is provided in the Rules of Court. With respect to
an unwritten foreign law, Rule 130 section 45 states that:
SEC. 45.Unwritten law. The oral testimony of witnesses, skilled
therein, is admissible as evidence of the unwritten law of a foreign
country, as are also printed and published books of reports of
decisions of the courts of the foreign country, if proved to be
commonly admitted in such courts.
Proof of a written foreign law, on the other hand, is provided for under Rule 132 section
25, thus:
SEC. 25.Proof of public or official record. An official record or an
entry therein, when admissible for any purpose, may be evidenced
by an official publication thereof or by a copy attested by the
officer having the legal custody of the record, or by his deputy,
and accompanied, if the record is not kept in the Philippines, with
a certificate that such officer has the custody. If the office in which
the record is kept is in a foreign country, the certificate may be
made by a secretary of embassy or legation, consul general,
consul, vice consul, or consular agent or by any officer in the
foreign service of the Philippines stationed in the foreign country in

which the record is kept and authenticated by the seal of his

office.
The Court has interpreted section 25 to include competent evidence like the testimony
of a witness to prove the existence of a written foreign law [Collector of Internal
Revenue v. Fisher, 110 Phil. 686, 700-701 (1961) citing Willamette Iron and Steel Works v.
Muzzal, 61 Phil. 471 (1935).]
In the case at bar petitioners did not present any competent evidence relative to the
law and custom of China on marriage. The testimonies of Yao and Gan Ching cannot
be considered as proof of China's law or custom on marriage not only because they are
self-serving evidence, but more importantly, there is no showing that they are
competent to testify on the subject matter. For failure to prove the foreign law or
custom, and consequently, the validity of the marriage in accordance with said law or
custom, the marriage between Yao Kee and Sy Kiat cannot be recognized in this
jurisdiction.

Petitioners contend that contrary to the Court of Appeals' ruling they are not duty
bound to prove the Chinese law on marriage as judicial notice thereof had been taken
by this Court in the case of Sy Joc Lieng v. Sy Quia [16 Phil. 137 (1910).]
This contention is erroneous. Well-established in this jurisdiction is the principle that
Philippine courts cannot take judicial notice of foreign laws. They must be alleged and
proved as any other fact [Yam Ka Lim v. Collector of Customs, 30 Phil. 46, 48
(1915); Fluemer v. Hix, 54 Phil. 610 (1930).]
Moreover a reading of said case would show that the party alleging the foreign
marriage presented a witness, one Li Ung Bieng, to prove that matrimonial letters
mutually exchanged by the contracting parties constitute the essential requisite for a
marriage to be considered duly solemnized in China. Based on his testimony, which as
found by the Court is uniformly corroborated by authors on the subject of Chinese
marriage, what was left to be decided was the issue of whether or not the fact of
marriage in accordance with Chinese law was duly proven [Sy Joc Lieng v. Sy
Quia, supra., at p. 160.]
Further, even assuming for the sake of argument that the Court has indeed taken
judicial notice of the law of China on marriage in the aforecited case, petitioners
however have not shown any proof that the Chinese law or custom obtaining at the
time the Sy Joc Lieng marriage was celebrated in 1847 was still the law when the
alleged marriage of Sy Kiat to Yao Kee took place in 1931 or eighty-four (84) years later.
Petitioners moreover cite the case of U.S. v. Memoracion [34 Phil. 633 (1916)] as being
applicable to the instant case. They aver that the judicial pronouncement in
the Memoracion case, that the testimony of one of the contracting parties is
competent evidence to show the fact of marriage, holds true in this case.

266

The Memoracion case however is not applicable to the case at bar as said case did not
concern a foreign marriage and the issue posed was whether or not the oral testimony
of a spouse is competent evidence to prove the fact of marriage in a complaint for
adultery.
Accordingly, in the absence of proof of the Chinese law on marriage, it should be
presumed that it is the same as ours *** [Wong Woo Yiu v. Vivo, G.R. No. L-21076, March
31, 1965, 13 SCRA 552, 555.] Since Yao Kee admitted in her testimony that there was no
solemnizing officer as is known here in the Philippines [See Article 56, Civil Code] when
her alleged marriage to Sy Kiat was celebrated [CFI decision, p. 14; Rollo, p. 51], it
therefore follows that her marriage to Sy Kiat, even if true, cannot be recognized in this
jurisdiction [Wong Woo Yiu v. Vivo, supra., pp. 555-556.]

and approved by the Court of First Instance on February 12, 1974 wherein Sy Kiat not
only acknowledged them as his children by Asuncion Gillego but likewise made
provisions for their support and future inheritance, thus:
xxx xxx xxx
2.The parties also acknowledge that they are common-law
husband and wife and that out of such relationship, which they
have likewise decided to definitely and finally terminate effective
immediately, they begot five children, namely: Aida Sy, born on
May 30, 1950; Manuel Sy, born on July 1, 1953; Teresita Sy, born on
January 28, 1955; Ricardo Sy now deceased, born on December
14, 1956; and Rodolfo Sy, born on May 7, 1958.

II.The second issue raised by petitioners concerns the status of private respondents.
Respondent court found the following evidence of petitioners' filiation:
(1)Sy Kiat's Master Card of Registered Alien where the following are
entered: "Children if any: give number of children Four"; and,
"Name All living in China" [Exhibit "SS-1";]
(2)the testimony of their mother Yao Kee who stated that she had
five children with Sy Kiat, only three of whom are alive namely, Sze
Sook Wah Sze Lai Chu and Sze Chin Yan [TSN, December 12, 1977,
pp. 9-11;] and,
(3)an affidavit executed on March 22, 1961 by Sy Kiat for
presentation to the Local Civil Registrar of Manila to support Sze
Sook Wah's application for a marriage license, wherein Sy Kiat
expressly stated that she is his daughter [Exhibit "3".]
Likewise on the record is the testimony of Asuncion Gillego that Sy Kiat told her he has
three daughters with his Chinese wife, two of whom Sook Wah and Sze Kai Cho she
knows, and one adopted son [TSN, December 6, 1977, pp. 87-88.]
However, as petitioners failed to establish the marriage of Yao Kee with Sy Kiat
according to the laws of China, they cannot be accorded the status of legitimate
children but only that of acknowledged natural children. Petitioners are natural
children, it appearing that at the time of their conception Yao Kee and Sy Kiat were not
disqualified by any impediment to marry one another [See Art. 269, Civil Code.] And
they are acknowledged children of the deceased because of Sy Kiat's recognition of
Sze Sook Wah [Exhibit "3"] and its extension to Sze Lai Cho and Sy Chun Yen who are her
sisters of the full blood [See Art. 271, Civil Code.]
Private respondents on the other hand are also the deceased's acknowledged natural
children with Asuncion Gillego, a Filipina with whom he lived for twenty-five (25) years
without the benefit of marriage. They have in their favor their father's acknowledgment,
evidenced by a compromise agreement entered into by and between their parents

3.With respect to the AVENUE TRACTOR AND DIESEL PARTS SUPPLY .

. ., the parties mutually agree and covenant that
(a)The stocks and merchandise and the furniture
and equipments . . ., shall be divided into two equal
shares between, and distributed to, Sy Kiat who shall own
one-half of the total and the other half to Asuncion
Gillego who shall transfer the same to their children,
namely, Aida Sy, Manuel Sy, Teresita Sy, and Rodolfo Sy.
(b)the business name and premises . . . shall be
retained by Sy Kiat. However, it shall be his obligation to
give to the aforenamed children an amount of One
Thousand Pesos (P1,000;00) monthly out of the rental of
the two doors of the same building now occupied by
Everett Construction.
xxx xxx xxx
(5)With respect to the acquisition, during the existence of the
common-law husband-and-wife relationship between the parties,
of the real estates and properties registered and/or appearing in
the name of Asuncion Gillego . . ., the parties mutually agree and
covenant that the said real estates and properties shall be
transferred in equal shares to their children, namely, Aida Sy,
Manuel Sy, Teresita Sy, and Rodolfo Sy, but to be administered by
Asuncion Gillego during her lifetime. . . . [Exhibit "D".] (Emphasis
supplied.)
xxx xxx xxx
This compromise agreement constitutes a statement before a court of record by which
a child may be voluntarily acknowledged [See Art. 278, Civil Code.]

267

Petitioners further argue that the questions on the validity of Sy Kiat's marriage to Yao
Kee and the paternity and filiation of the parties should have been ventilated in the
Juvenile and Domestic Relations Court.
Specifically, petitioners rely on the following provision of Republic Act No. 5502, entitled
"An Act Revising Rep. Act No. 3278, otherwise known as the Charter of the City of
Caloocan"; with regard to the Juvenile and Domestic Relations Court:

If any question involving any of the above matters should arise as

an incident in any case pending in the ordinary court, said incident
shall be determined in the main case.
xxx xxx xxx
As held in the case of Divinagracia v. Rovira [G.R. No. L-42615. August 10, 1976, 72 SCRA
307]:

SEC. 91-A.Creation and Jurisdiction of the Court.

xxx xxx xxx
xxx xxx xxx
The provisions of the Judiciary Act to the contrary notwithstanding,
the court shall have exclusive original jurisdiction to hear and
decide the following cases;
xxx xxx xxx

It is true that under the aforequoted section 1 of Republic Act No.

4834 **** a case involving paternity and acknowledgment may be
ventilated as an incident in the intestate or testate proceeding
(See Baluyot vs. Ines Luciano, L-42215, July 13, 1976). But that legal
provision presupposes that such an administration proceeding is
pending or existing and has not been terminated. [at pp. 313-314.]
(Emphasis supplied.)

(2)Cases involving custody, guardianship, adoption, revocation of

adoption, paternity and acknowledgment;
(3)Annulment of marriages, relief from marital obligations legal
separation of spouses, and actions for support;
(4)Proceedings brought under the provisions of title six and title
seven, chapters one to three of the civil code;
xxx xxx xxx
and the ruling in the case of Bartolome v. Bartolome [G.R. No. L-23661, 21 SCRA
1324] reiterated in Divinagracia v. Rovira [G.R. No. L-42615, 72 SCRA 307.]
With the enactment of Batas Pambansa Blg. 129, otherwise known as the Judiciary
Reorganization Act of 1980, the Juvenile and Domestic Relations Courts were abolished.
Their functions and jurisdiction are now vested with the Regional Trial Courts [See Section
19 (7), B.P. Blg. 129 and Divinagracia v. Bellosillo, G.R. No. L-47407, August 12, 1986, 143
SCRA 356, 360] hence it is no longer necessary to pass upon the issue of jurisdiction
raised by petitioners.
Moreover, even without the enactment of Batas Pambansa Blg. 129 we find in Rep. Act
No. 5502 sec. 91-A last paragraph that:
xxx xxx xxx

xxx xxx xxx

The reason for this rule is not only "to obviate the rendition of conflicting rulings on
the same issue by the Court of First Instance and the Juvenile and Domestic
Relations Court" [Vda. de Baluyut v. Luciano, G.R. No. L-42215, July 13, 1976, 72
SCRA 52, 63] but more importantly to prevent multiplicity of suits.

Accordingly, this Court finds no reversible error committed by respondent court.

WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED.
SO ORDERED.
Fernan, C .J ., Gutierrez, Jr., Feliciano and Bidin, JJ ., concur.
EN BANC
[G.R. No. L-6897. November 29, 1956.]
15. In the Matter of the Claim for Attorney's Fees. CLARO M.
RECTO, claimant-appellee, vs. ESPERANZA P. DE HARDEN and FRED
M. HARDEN, defendants-appellants.
DECISION

268

CONCEPCION, J p:
This is an appeal taken by Esperanza P. de Harden and Fred M. Harden
from a decision of the Court of First Instance of Manila, the pertinent part of which is
of the following tenor:.
"The contingent fee to which the claimant is entitled
under paragraph 3 of the contract, Exhibit JJJ or 20, is 20% of
P1,920,554.85 or the sum of P384,110.97.
"WHEREFORE, this Court hereby approves the
recommendation of the Commissioner with the above-stated
modification, and finds that Attorney Claro M. Recto is entitled to
the sum of THREE HUNDRED EIGHTY-FOUR THOUSAND ONE
HUNDRED AND TEN PESOS AND NINETY-SEVEN CENTAVOS
(P384,110.97), representing 20% of Esperanza P. de Harden's share
in the conjugal properties owned by her and her husband, Fred M.
Harden, as contingent fee stipulated in paragraph 3 of the
Contract of Professional Services, Exhibit JJJ or 20, and the said
Esperanza P. de Harden is hereby ordered to pay the said amount
above-stated." It appears that sometime in July, 1941, appellant,
Mrs. Harden, and appellee, Claro M. Recto, executed the
following:
"CONTRACT OF PROFESSIONAL SERVICES
KNOW ALL MEN BY THESE PRESENTS:
"That I, ESPERANZA PEREZ DE HARDEN, of age, married to
Fred M. Harden, and temporarily residing in the Philippines, with
address at 534 Sales Street, Manila, have engaged the services of
Attorney Claro M. Recto to appear and act as my counsel in the
action which I will file against my husband, Fred M. Harden, for the
purpose of securing an increase in the amount of support being
received by me from the conjugal partnership of myself and said
Fred M. Harden, and for the purpose likewise of protecting and
preserving my rights in the properties of the said conjugal
partnership, in contemplation of the divorce suit which I intent to
file against him in the competent Court of California and of the
liquidation of the conjugal partnership between us, this contract of
services to be under the following conditions:
"1.That in lieu of retainer fee, which under the
circumstances I am not in a position to pay, I hereby agree to pay
Attorney Claro M. Recto, such payment to be made monthly,
during the pendency of the litigation and until the termination of
the same, twenty-five (25%) per cent of the total increase in
allowance or pension which may be awarded to me by the court

over and above the amount of P1,500.00 which I now receive

monthly from defendant Fred M. Harden out of the funds of the
conjugal partnership; Provided, that should the case be terminated
or an amicable settlement thereof be arrived at by the parties
before the expiration of two years from the date of the filing of the
complaint, I shall continue to pay the said twenty-five (25%) per
cent up to the end of said period.
"2.That the aforesaid monthly payments shall be in
addition to whatever amount may be adjudged by the court
against the defendant Fred M. Harden or against the conjugal
partnership by way of litis expense, that is, attorney's fees
chargeable as expenses of litigation.
"3.That as full and complete satisfaction of the fees of
Attorney Claro M. Recto in connection with the case above
referred to, and said case being for the purposes aforestated, that
is, to secure an increase in the amount of support I now receive as
well as to protect and preserve my rights and interest in the
properties of the conjugal partnership, in contemplation of divorce
and of the liquidation of said partnership, I hereby agree to pay
said Attorney Claro M. Recto twenty (20%) per cent of the value of
the share and participation which I may receive in the funds and
properties of the said conjugal partnership of myself and
defendant Fred M. Harden, as a result of the liquidation thereof
either by death, divorce, judicial separation, compromise or by any
means or method by virtue of which said partnership is or may be
liquidated.
"4.All expenses in connection with the litigation are to be
for my account, but the same may be advanced by Attorney
Claro M. Recto, to be reimbursed to him either from the money
which I receive by way of support or from the funds of the conjugal
partnership.
"5.It is hereby understood that this contract includes the
services of Attorney Claro M. Recto in connection with the securing
of the liquidation of the properties and assets of the conjugal
partnership of myself and Fred M. Harden, upon dissolution of said
partnership or for any other cause mentioned in Paragraph (3)
hereof.
IN WITNESS WHEREOF, I have signed these presents in the
City _____ of Manila, Philippines this _______ day of July, 1941.
s/ Esperanza P. de Harden
t/ ESPERANZA P. DE HARDEN

269

ACCEPTED:
s/ Claro M. Recto
t/ CLARO M. RECTO"
In compliance therewith, on July 12, 1941, the appellee, as counsel for
Mrs. Harden, commenced Civil Case No. 59634 of the Court of First Instance of
Manila, entitled "Esperanza P. de Harden vs. Fred M. Harden and Jose Salumbides."
In the complaint therein filed, it was prayed, among other things: (a) that Mrs.
Harden be given the exclusive administration of the business and all properties of
the conjugal partnership of Mr. and Mrs. Harden; (b) that, in the event of denial of
this prayer, the defendants be ordered to inform her "of everything pertaining to
the administration of said business and properties", as well as to render accounts
thereof and to permit her to examine the books and records pertinent thereto; (c)
that Mr. Harden be ordered to account to Mrs. Harden, and to return to this
jurisdiction, the sum of P449,015.44 allegedly withdrawn by him from the Philippines
or sent by him to Hongkong on April 1, 1941; (d) that defendant Salumbides be
ordered to account for all moneys, amounting to P285,000.00, belonging to the
business and assets of said conjugal partnership and deposited by him in a safety
box, either in his name, or in that of Antonio Wilson, from January 23 to December
23, 1940; (e) that the transfer, in the name of Salumbides, of certain shares of stock,
allegedly belonging to the conjugal partnership, be rescinded and said defendant
ordered to transfer said shares of stock in the name of Mrs. Harden or in that of Mr.
and Mrs. Harden, should Mr. Harden be allowed to continue as administrator of said
partnership; ( f ) that the transfer, made by Mr. Harden and/or by defendant
Salumbides, as his attorney-in-fact, of 36,000 shares of stock of the Angelo Mining
Company, to some residents of Hongkong, be rescinded and said shares returned
to the assets of the conjugal partnership and placed in the name of Mr. and Mrs.
Harden; (g) that the monthly allowance of Mrs. Harden be increased from P1,500 to
P15,000; (h) that, pending final decision, Mr. Harden be ordered to increase the
allowance or pension of Mrs. Harden and their daughter Sarah Elizabeth to P10,000
a month; and (i) that a writ of preliminary injunction be issued restraining the
defendants from disposing of the assets of the conjugal partnership in fraud of Mrs.
Harden.
By an order dated July 12, 1941, the court authorized the issuance of said
writ, upon the filing of the corresponding bond. It appears that, pursuant to an
agreement submitted by both parties, and with a view to avoiding unnecessary
embarrassment, restraint or inconvenience in the financial operations of the
business enterprises affected by said writ of preliminary injunction, the same was
amended by an order dated July 19, 1941, in the sense that.
". . . without prejudicing in any way the rights of the parties
in this case, a separate bank account be established in the
Chartered Bank of India, Australia and China, of Manila, and all
transactions in connection with the aforesaid businesses passed
through that account by Mr. Harden or his duly authorized
representative, who at present is Mr. Salumbides, without the
necessity of securing a particular order from this Court on each

occasion; that the present funds in the Philippine National Bank in

the name of Plaza Lunch and Fred M. Harden be utilized for the
purpose of starting said special bank account in the Chartered
Bank of India, Australia and China; that all income from the
aforesaid businesses be deposited in this special bank account
and no checks be drawn upon the same, except to pay the
necessary overhead and running expenses including purchases of
tobacco, merchandise, etc., required for the proper operation of
said businesses; that a new set of books be opened by Mr. Harden
or his duly authorized representative covering all business
transactions passed through said special bank account and the
same be opened for inspection by the plaintiff's duly authorized
representative.
"The order of injunction of July 12, 1941, is modified only to
the above extent, and in all other respects is maintained."
Subsequently, the Philippines was invaded by the Japanese and placed
under military occupation. Then came the liberation, in the course of which the
records of this case were destroyed. On October 23, 1946, said records were
reconstituted at the instance of appellee herein. Thereafter, the proceedings were
resumed and, in due course, the Court of First Instance of Manila rendered, on or
about October 31, 1949, a decision the dispositive part of which we quote:
"In view of the foregoing considerations, this court finds
and so holds that
"(a)Fred M. Harden abandoned his domicile of origin in
New Jersey and established a domicile of choice in Manila,
Philippines, since 1901;
"(b)The matrimonial domicile of Fred M. Harden and
Esperanza P. de Harden was established in Manila, Philippines, from
the date of their marriage on December 14, 1917;
"(c)Since they did not execute any antenuptial contract
before their marriage, all the properties, real or personal, acquired
by either or both of them on and after December 14, 1917, up to
the present, over and above the sum of P20,000.00 representing
Fred M. Harden's capital, are hereby declared conjugal properties;
"(d)The total amount of P1,944,794.37 representing
deposits in safety deposit boxes in the name of Jose Salumbides,
the selling price of the house in Los Angeles, California, and the
pre-war and post-war remittances abroad of Fred M. Harden, from
which has already been deducted the sum of P160,000.00
covering payments for deficiency Federal income taxes and
attorney's fees, both in the tax case and the present one, is hereby

270

declared chargeable to the share of defendant Harden and

deductible from whatever participation he may still have in the
said conjugal partnership upon the liquidation thereof, upon his
failure to return and deposit them in the name of the Plaza Lunch
with the Manila branch of the Chartered Bank of India, Australia
and China up to the time this decision shall become final;
"(e)A conjugal lien be annotated in the original and
owner's duplicate of Transfer Certificates of Title Nos. 24393, 52436
and 54911 of the Register of Deeds of Manila and in Original
Certificate of Title No. 2292 of Quezon Province, and on all the
certificates of shares belonging to said conjugal partnership, as
well as in the corresponding books of the companies or
corporations issuing them, whereby it will be made to appear that
any subsequent alienation or encumbrance of said properties by
Fred M. Harden alone or his representative without the consent of
his wife will be deemed fraudulent and subject to revocation or
cancellation for being in fraud and prejudicial to the right of
Esperanza P. de Harden;
"( f )Within a period of fifteen (15) days after this decision
shall have become final, Fred M. Harden and Esperanza P. de
Harden are hereby ordered to execute a document to be
approved by this court creating and express active trust upon the
remaining cash assets and income of the conjugal partnership in
the Philippines, whereby the Philippine Trust Company, with offices
in Manila, will act as trustee, subject to the right of Fred M. Harden
to receive therefrom the sum of P2,500,00 a month by way of
allowance and an equal amount for the plaintiff as separate
support and maintenance;
"(g)Within thirty (30) days after this decision shall have
become final, Fred M. Harden shall inform the plaintiff of all the
properties and businesses of the conjugal partnership, be they in
the Philippines or abroad, and render a true and complete
accounting of the earnings and profits thereof;
"(h)The plaintiff is entitled to litis expensae in the amount
of P175,000.00 for services rendered by her counsel up to the
rendition of this judgment, which Fred M. Harden or the herein
receiver is ordered to pay within a period of fifteen (15) days after
this decision has become final; and
"(i)The writ of preliminary injunction of July 12, 1941, is
hereby declared permanent and the order of receivership of
November 20, 1946, is hereby maintained, but said auxiliary
remedies will be automatically lifted upon the conclusion of the

annotation of the conjugal lien and the execution of the deed of

trust above mentioned. Without costs.
"IT IS SO ORDERED."
The defendants appealed from said decision to this Court, where the case
was docketed as case No. L-3687. While the appeal was thus pending before us,
herein appellee filed a manifestation and a motion, both dated February 20, 1952.
In said "manifestation", appellee stated that Mrs. Harden had instructed him, by
letter, to "discontinue all proceedings relative to" said case, "vacate all orders and
judgments rendered therein, and abandon and nullify all her claims to the conjugal
partnership existing between her and Mr. Harden", in accordance with several
instruments dated January 29, 1952, and executed without the knowledge, advise
and consent of said appellee, as counsel for Mrs. Harden, whereby: (1) Mr. and Mrs.
Harden had purportedly agreed to settle their differences in consideration of the
sum of $5,000 paid by Mr. Harden to Mrs. Harden, and a monthly pension of P500 to
be paid by him to her; (2) Mr. Harden had created a trust fund of $20,000 from
which said monthly pension of $500 would be taken; and (3) Mr. and Mrs. Harden
had mutually released and forever discharged each other from all actions, debts,
duties, accounts, demands and claims to the conjugal partnership, in consideration
of the sum of $1. It was further asserted, in appellee's "manifestation", that the
purpose of the said instruments, executed by Mr. and Mrs. Harden, was to defeat
the claim of the former for attorney's fees, for which reason, he prayed, in his
aforementioned motion, that
"a)Pending the resolution of this motion, the receiver
appointed herein be authorized to continue holding the properties
above mentioned in his custody in order not to defeat the
undersigned's inchoate lien on them;
"b)A day set aside to receive the evidence of the
undersigned and those of the plaintiff and the defendant Fred M.
Harden, in order to determine the amount of fees due to the
undersigned, by the appointment of a referee or commissioner for
the reception of such
"c)After due hearing, the undersigned be declared
entitled to the sum of P400,000.00 as his fees for services rendered
in behalf of the plaintiff in this case, under paragraph 3 of the
contract, Annex 'A', and to that end a charging lien therefore be
established upon the properties above-mentioned;
"d)And the receiver be ordered to pay to the
undersigned the full amount of the fees to which the latter is found
to be entitled."
Counsel for the defendants-appellants, in turn, moved for the dismissal of
the case, to which appellee objected. Acting upon the issues raised in such motion

271

for dismissal and in appellee's motion to establish and enforce his charging lien, as
counsel for Mrs. Harden, this Court issued on July 22, 1952, a resolution the pertinent
part of which reads:
"It will be seen from the above that the defendantsappellants pray for the complete dismissal of the above entitled
case without prejudice to the annotation of the contingent claim
of Attorney Claro M. Recto on the property under receivership,
other than the 368,553 shares of the Balatoc Mining Company
which belong to Fred M. Harden. On the other hand, Attorney
Claro M. Recto agrees to the lifting of the writ of preliminary
injunction, the orders of contempt and commitment, and all other
interlocutory orders which were issued in the course of this case,
with the exception of the receivership, but objects to the dismissal
of the case on the ground that, since receivership is merely an
auxiliary remedy, the present case should be allowed to remain
pending for the purpose of maintaining the receivership to
safeguard his right to collect the fees that may be due him.
"Attorney Claro M. Recto prays that a commissioner or
referee be immediately appointed by this Court to receive
evidence in support of his allegations as to his attorney's lien and its
enforcement. Counsel for the defendants-appellants does not
object to this proceeding provided that the restrictions set forth by
him be observed. However, this Court does not have the proper
facilities for receiving evidence in order to determine the amount
of the fees claimed by Attorney Claro M. Recto, and it is deemed
advisable that this matter be determined by the Court of First
Instance. This is specially so considering the opposition to the claim
of Attorney Claro M. Recto filed by Attorney J. W. Ferrier, Sr. in
behalf of Esperanza P. de Harden.

"In view of the foregoing, the above entitled case is

hereby remanded to the court of origin in order to determine the
amount of fees claimed by Attorney Claro M. Recto in his motion
dated February 20, 1952.
"It is understood that, after said fees had been finally
determined and paid, this case will be completely dismissed as
prayed for by the defendants-appellants, without prejudice to
considering the claim of the receiver for compensation as stated in
his urgent motion dated July 2, 1952. "Pending the determination of
the amount of fees claimed by Attorney Claro M. Recto, the writ of
preliminary injunction, the orders of contempt and commitment,
and all interlocutory orders which were issued in the course of this
case, are hereby lifted and vacated, and with regard to the

receivership, the same is hereby dissolved, only with respect to the

368,553 shares of the Balatoc Mining Company. As to the rest of
the properties, the receivership shall be maintained."
In compliance with said resolution, the records of this case were
remanded to the lower court, which, on September 2, 1952, designated a
commissioner to receive evidence on the amount of the fees collectible by herein
appellee and to report thereon. After due hearing, said commissioner submitted,
on February 6, 1953, a report of about one hundred (100) pages of the printed
record on appeal, setting forth, in detail, the evidence introduced by both parties,
and his findings of fact, with the following conclusion and recommendation:
"Taking into consideration the value of the properties
involved in this litigation, the length of time in which claimant had
handled the same for Esperanza Harden, the volume and quality
of the work performed, the complicated legal questions involved,
the responsibility assumed by the claimant as counsel, his
reputation in the bar, the difficulties encountered by him while
handling the same in which he had to work hard every inch of the
way because of the stiff oppositions filed by adverse counsel, the
diligence he employed not only in the preservation of the records
in his possession during the days of enemy occupation but also in
the protection of the interests of Esperanza Harden, his successful
handling of said case and those cases growing out of it which
reached the Supreme Court, and the extra services he rendered in
her behalf in the tax and other court cases, the undersigned
Commissioner concludes that claimant is entitled to the full amount
of 20% of Esperanza Harden's share of the conjugal properties, as
provided in paragraph 3 of the Contract of Professional Services,
Exhibit JJJ.
"WHEREFORE, the undersigned Commissioner respectfully
recommends that Atty. Claro M. Recto be paid the equivalent
amount of 20% of Esperanza P. de Harden's share of the conjugal
properties or the sum of P369,410.04 as his contingent fee for
services rendered in her behalf."
After appropriate proceedings, the lower court rendered a decision
dated April 30, 1953, adopting substantially said report of the commissioner, but
increasing the contingent fee of appellee herein from P369,410.04, the sum
recommended in the report, to P384,110.97. Hence, this appeal taken by Mr. and
Mrs. Harden.
The first question for determination therein is the validity of the abovequoted contract of services, which the appellants assail as void, mainly, upon the
ground: (1) that Mrs. Harden cannot bind the conjugal partnership without her
husband's consent; (2) that Article 1491 of the Civil Code of the Philippines in effect
prohibits contingent fees; (3) that the contract in question has for its purpose to

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secure a decree of divorce, allegedly in violation of Articles 1305, 1352 and 1409 of
the Civil Code of the Philippines; and (4) that the terms of said contract are harsh,
inequitable and oppressive.
The first objection has no foundation in fact, for the contract in dispute
does not seek to bind the conjugal partnership. By virtue of said contract, Mrs.
Harden merely bound herself or assumed the personal obligation to pay, by
way of contingent fees, 20% of her share in said partnership. The contract neither
gives, nor purports to give, to the appellee any right whatsoever, personal or real, in
and to her aforesaid share. The amount thereof is simply a basis for
the computation of said fees.
For the same reason, the second objection is, likewise, untenable.
Moreover, it has already been held that contingent fees are not prohibited in the
Philippines and are impliedly sanctioned by our Cannons (No. 13) of Professional
Ethics. (see, also, Ulanday vs. Manila Railroad Co., 45 Phil., 540, 554.) Such is,
likewise, the rule in the United States (Legal Ethics by Henry S. Drinker, p. 176).
". . . in the United States, the great weight of authority
recognizes the validity of contracts for contingent fees, provided
such contracts are not in contravention of public policy, and it is
only when the attorney has taken an unfair or unreasonable
advantage of his client that such a claim is condemned." (See 5
Am. Jur. 359 et seq.; Ballentine, Law Dictionary, 2nd ed., p. 276.)
Needless to say, there is absolutely nothing in the records before us to
show that appellee herein had, in any manner, taken an unfair or unreasonable
advantage of his client Mrs. Harden.
The third objection is not borne out, either by the language of the
contract between them, or by the intent of the parties thereto. Its purpose was not
to secure a divorce, or to facilitate or promote the procurement of a divorce. It
merely sought to protect the interest of Mrs. Harden in the conjugal partnership,
during the pendency of a divorce suit she intended to file in the United States.
What is more, inasmuch as Mr. and Mrs. Harden are admittedly citizens of the
United States, their status and the dissolution thereof are governed pursuant to
Article 9 of the Civil Code of Spain (which was in force in the Philippines at the time
of the execution of the contract in question) and Article 15 of the Civil Code of the
Philippines by the laws of the United States, which sanction divorce. In short, the
contract of services, between Mrs. Harden and herein appellee, is not contrary to
law, morals, good customs, public order or public policy.
The last objection is based upon principles of equity, but, pursuant thereto,
one who seeks equity must come with clean hands (Bastida, et al.,vs. Dy Buncio &
Co., 93 Phil., 195; 30 C. J. S. 475), and appellants have not done so, for the
circumstances surrounding the case show, to our satisfaction, that their
aforementioned agreements, ostensibly for the settlement of the differences
between husband and wife, were made for the purpose of circumventing or

defeating the rights of herein appellee, under his above-quoted contract of

services with Mrs. Harden. Indeed, having secured a judgment in her favor,
acknowledging her rights to the assets of the conjugal partnership, which turned
out to be worth almost P4,000,000 in addition to litis expensae in the sum of
P175,000, it is inconceivable that Mrs. Harden would have waived such rights, as
well as the benefits of all orders and judgments in her favor, in consideration of the
paltry sum of $5,000 allegedly paid to her by Mr. Harden and the additional sum of
$20,000 to be paid by him in installments, at the rate of $500 a month. In fact, no
explanation has been given for this most unusual avowed settlement between Mr.
and Mrs. Harden. One can not even consider the possibility of a reconciliation
between the spouses, the same being inconsistent with the monetary consideration
for said alleged settlement. What is more, the records show that the relations
between said spouses which were bad indeed, not only in July, 1941, when Mrs.
Harden engaged the services of the appellee, but, even, before, for Mr. and Mrs.
Harden were separated since 1938 had worsened considerably thereafter, as
evidence by an action for divorce filed by Mr. Harden in New Jersey, in July 1948,
upon the ground of repeated acts of infidelity allegedly committed by Mrs. Harden
in 1940 and 1941.
Again, it appears that appellee had rendered, under the contract in
question, the following services, for the benefit of Mrs. Harden:
1.He succeeded in defeating defendants' motion for the dissolution of the
writ of preliminary injunction, issued by the Court on July 12, 1941, and amended on
July 19, 1941.
2.On November 12, 1946, appellee moved for the appointment of a
receiver, upon the ground that, despite said writ of preliminary injunction, the
defendants had been disposing of the properties of the conjugal partnership for
the purpose of defrauding Mrs. Harden. After due hearing, the court, by an order
dated November 20, 1946, directed the appointment of Abelardo Perez as receiver
of said properties, upon the filing of a P10,000 bond. Defendants asked, on
February 13, 1947, that the receivership be suspended, or else, that they be
allowed to file a bond for the discharge of the receivership. Appellee replied
objecting thereto, unless the defendants posted a P4,000,000 bond. Subsequently
or on March 5, 1947, the defendants sought a reconsideration of the order of
November 20, 1946, and the discharge of the receiver. By an order dated March
21, 1947, the Court authorized said discharged upon the filing, by the defendants,
of a bond in the sum of P500,000, provided that Mr. Harden "should bring back all
the 368,553 shares of the Balatoc Mining Co., in his name to the Philippines for
deposit with the Clerk of Court, or with the Chartered Bank of India, Australia and
China, at Manila . . .
"3.On motion of the appellee dated March 4, 1947, the Court, by an order
dated April 5, 1947, directed Mr. Harden to remit to Mrs. Harden the sum of $2,500,
to be charged against her litis expensae. Upon similar motion, filed by appellee on
or about April 26, 1947, the Court ordered Mr. Harden, on May 13, 1947, to furnish
Mrs. Harden the sum of $5,000, under the same conditions.

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4.On June 21, 1947, the defendants instituted Civil Case No. G. R. No. L1499 of this Court, entitled "Fred M. Harden and Jose Salumbidesvs. Emilio Pea,
Abelardo Perez and Esperanza P. Harden" for the purpose of annulling and setting
aside, by writ of certiorari, the aforementioned orders of the lower court dated July
12, 1941, November 20, 1946, and April 5 and May 13, 1947, and to restrain, in the
meantime, the enforcement thereof. After appropriate proceedings, in the course
of which appellee appeared as counsel for Mrs. Harden, and like counsel for the
petitioners therein, filed several lengthy, detailed pleadings and memoranda,
decision was rendered on November 21, 1950, denying the writ of certiorari prayed
for.
5.On or about September 9, 1947, appellee filed a motion alleging that
despite the writ of preliminary injunction above mentioned, the defendants had,
fraudulently and without judicial consent, remitted abroad several sums of money
aggregating P1,000,608.66, and praying that Mr. Harden be ordered to return this
sum to the Philippines, within a stated period, said sum to be deposited with the
account of the Plaza Lunch at the Manila Branch of the Chartered Bank of India,
Australia and China. Mr. Harden objected to said motion. Appellee filed a
rejoinder, to which Mr. Harden replied. Appellee filed a rejoinder to the rejoinder.
On October 7, 1947, the Court granted appellee's motion. Mr. Harden sought a
reconsideration, which was opposed by the appellee on October 27, 1947, and
denied by an order dated November 13, 1947. Mr. Harden moved, on November
18, 1947, for the suspension of this order, which was immediately objected to by the
appellee and then denied by the Court.
6.Inasmuch as said order of November 13, 1947 had not been complied
with, appellee filed on November 27, 1947, a motion praying that Mr. Harden be
declared in contempt of court and punished accordingly. Meanwhile, or on
November 24, 1947, Mr. Harden had instituted case G. R. No. L-1816 of this Court
against Hon. Emilio Pea, as Judge of the Court of First Instance of Manila, and Mrs.
Harden. In the petition therein filed, Mr. Harden applied for a writ of certiorari
annulling said orders of Judge Pea of October 7 and November 13, 1947, and
prayed that, pending disposition of the case, a writ of preliminary injunction be
issued restraining the respondents therein from enforcing said orders, particularly
through contempt proceedings. Hence, the lower court deferred action on the
aforementioned motion of November 27, 1947. After due hearing, this Court, in a
resolution dated February 12, 1948, refused to issue the writ of preliminary injunction
prayed for. Subsequently, or on November 21, 1950, decision was rendered
denying the petition for a writ of certiorari.
7.Soon after the issuance of our resolution in said case G. R. No. 1816,
dated February 12, 1948, or to be exact on March 27, 1948, the lower court issued
an order directing Mr. Harden to comply, within five (5) days from notice, with the
order of October 7, 1947. On April 6, 1948, appellee filed with the lower court the
corresponding formal charges against Mr. Harden for contempt of court. After due
hearing, Mr. Harden was, by an order of April 28, 1948, found guilty as charged and
ordered confined "until he complies with the aforementioned orders" of October 7,
1947 and March 27, 1948. On motion of Mr. Harden, said order of April 28, 1948 was
suspended until May 4, 1948, on which date he was arrested and placed in

confinement at the New Bilibid Prison, in Muntinglupa, Rizal. On July 10, 1948, he
filed with this Court a petition for a writ of habeas corpus against the Director of
Prisons, (G. R. No. L-2349, entitled "Fred M. Harden vs. The Director of Prisons"),
which, in due course was denied in a decision promulgated on October 22, 1948.
8.During the military occupation of the Philippines by the Japanese, the
appellee made representations with the Japanese Government to prevent the
commandeering of a business establishment belonging to Mr. and Mrs. Harden.
Moreover, he succeeded in persuading the Japanese to refrain from interning Mrs.
Harden and her daughter and to allow her to withdraw, from the former's deposit in
a local bank, from P200 to P250 a month, for their subsistence. He, likewise, lent her
money to meet her needs and spent the sum of P55,000 in the preservation of the
records and papers pertaining to the business and other properties of the conjugal
partnership of Mr. and Mrs. Harden.
9.Appellee assisted, also, the receiver, as his counsel and, in such
capacity, took all steps essential for the proper discharge of the duties of the
former. Among other things, appellee sought and obtained judicial authority for
some important acts of administration of, and disposition by, the receiver. He
(appellee) secured judicial intervention for the protection and preservation of the
assets of the conjugal partnership, including orders for the delivery of certificates of
stock, the return thereof and/or its deposit with the clerk of court. He, likewise,
represented the receiver in seeking war damage payments.
10.In civil case No. 6222 of the Court of First Instance of Manila, entitled
"Francisco Dalupan vs. Fred M. Harden" for the recovery of P113,837.17, it was
decided, through appellee's intervention, that the conjugal assets would bear the
payment of P22,767.43 only, the balance to be chargeable exclusively against Mr.
Harden's share of the conjugal partnership.
11.Appellee instituted civil case No. 6940 of the Court of First Instance of
Manila, entitled "Abelardo Perez vs. Chartered Bank of India, Australia and China
and Fred M. Harden", for the recovery of P1,000,608.66 and the return of stock
certificates of the Balatoc Mining Co., which had been sent abroad.
12.He (appellee) represented Mrs. Harden in connection with a millionpeso federal tax case against Mr. and Mrs. Harden.
13.Appellee successfully blocked Mr. Harden's attempts to withdraw: (1)
$53,000 and forward the same to the Collector of Internal Revenue of Los Angeles,
California; (2) $50,000.00, allegedly to defray expenses in resisting a new tax
assessment against him in the United States; and (3) P65,000 for his expenses.
Then too, the conjugal partnership had varried and extensive business
interests and its assets were worth almost P4,000,000. The pleadings, motions,
oppositions, rejoinders, and memoranda filed, and the evidence introduced, in the
aforementioned cases in which appellee was pitted against one of the most
experienced and able members of the Philippine Bar were numerous, extensive

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and exhaustive. For instance, the record on appeal in one of those cases, namely,
G. R. No. L-3687, consisted of 966 pages.
In short, considering the character of the services rendered by the
appellee, the nature and importance of the issues in said litigations, the amount of
labor, time (1941 to 1952) and trouble involved therein, the skill displayed in
connection with said cases, the value of the property affected by the controversy,
the professional character and standing of the appellee, the risks assumed and the
results obtained, we are of the opinion, and so hold, that the contract of services in
question is neither harsh nor oppressive or inequitable.
Under their second assignment of error, appellants maintain that:
"The lower court erred in failing to find as a fact borne out by the
evidence that the legal services of Attorney Claro M. Recto to Mrs.
Esperanza P. de Harden, payment, for which is sought by him in this
case, have already been paid by his immediate execution
pending appeal of the decision in Civil Case No. CFI-R-59634 (SCG.R. No. L- 3687), wherein he collected the sum of P176,000.00 for
all such legal services."
Said decision, however, states clearly that the aforementioned sum of
P175,000 represents litis expensae, and the contract between the appellee and
Mrs. Harden explicitly declares that said litis expensae shall be "in addition to"
appellee's share of 25% of the increase in the allowance of Mrs. Harden and his
attorney's fees of 20% of her share in the conjugal partnership. The second
assignment of error is, therefore, devoid of merit.
Appellants, further contend, that:
3.The lower court erred in holding that the inchoate share
of the wife, Esperanza P. de Harden, in the undissolved and
unliquidated conjugal partnership properties of the Harden
spouses, is capable of certain valuation before such dissolution
and liquidation, and summarily assessing the value of Mrs. Harden's
share in such conjugal properties without proper evidence.
4."The lower court erred in awarding 20% of such inchoate
share to Attorney Claro M. Recto from Mrs. Harden's interests in the
Harden conjugal properties, summarily assessing such 20%
inchoate share as of a value of P384,110.97, and ordering the
payment of said sum to Attorney Recto in pursuance of the
provisions of paragraph 3 of the Contract of Professional Services."
Appellants' arguments in support thereof may be summarized as follows:
The contract of services in question provides that appellee's contingent fees shall
be 20% of the share of Mrs. Harden in the conjugal partnership. Pursuant to law, the
share of Mrs. Harden shall be determined upon the liquidation of said partnership,

which has not taken place, as yet. What is more, it cannot be effected until the
dissolution of the marriage relation between Mr. and Mrs. Harden. Inasmuch as this
relation subsists, it follows that the amount of attorney's fees due to appellee herein
should not have been determined in the decision appealed from.
This line of argument overlooks the fact that said contract of services was
made, principally, in contemplation of a suit for divorce that, according to Mrs.
Harden, she intended to file before a competent court in California, "and of the
liquidation of the conjugal partnership between" her and Mr. Harden. Had she filed
said action for divorce and secured a decree of divorce, said conjugal partnership
would have been dissolved and then liquidated, and the share of Mrs. Harden
therein would have been fixed. However, this cannot take place, either now, or in
the foreseeable future, owing to the aforementioned agreements between Mr.
and Mrs. Harden, which were made for the evident purpose of defeating
appellee's claim for attorney's fees. In other words, the occurrence, within the time
contemplated by the parties bearing in mind the nature of, and the
circumstances under which they entered into, said contract of services of the
event upon which the amount of said fees depended, was rendered impossible by
Mrs. Harden. Hence, whether such event be regarded as a condition or as a
period, she may not insist upon its occurrence, prior to the enforcement of the
rights of the herein appellee, for "the condition shall be deemed fulfilled when the
obligor voluntarily prevents its fulfillment" (Art. 1186, Civil Code) and "the debtor shall
lose every right to make use of the period" when he "violates any undertaking, in
consideration of which the creditor agreed to the period." (Art. 1198, Civil Code.)
It should be noted, also, that the compensation agreed upon for
appellee's services, consists of three (3) parts, namely: (a) 25% of the increase in the
allowance of Mrs. Harden; (b) litis expensae; and (c) 20% of her share in the
conjugal partnership. The first part was dealt with in the first paragraph of their
contract of services. The second and third parts were the object of the second and
third paragraphs, respectively. The firstparagraph limited the rights of appellee
thereunder to two (2) years, in the event of termination of the case or amicable
settlement thereof within two (2) years from the filing of the complaint. No such
limitation appears in the second and third paragraphs of said contract. Hence, the
same were intended by the parties to be fully operative under any and all
conditions.
It may not be amiss to add that the value of the properties involved has
been assessed, not summarily, but after due notice and full dress hearing, in the
course of which both parties introduced testimonial and documentary evidence.
Appellants presented Exhibits 1 to 58, whereas those of the appellee were so
numerous that, having begun with Exhibit A, his last piece of documentary
evidence was marked Exhibit 26 Y's. The transcript of the hearing, which lasted ten
(10) days, covers over 220 pages.
The other assignments of error made by appellants herein are mere
corollaries of those already disposed of, and, hence, no further discussion thereof is
necessary.

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In conclusion, it appears that the assets of the conjugal partnership

between Mr. and Mrs. Harden are reasonably valued at P3,841,109.70. One-half
(1/2) thereof, representing the share of Mrs. Harden, is therefore, worth
P1,920,554.85. Twenty percentum (20%) of this sum is P384,110.97, which is the
contingent fee due to the appellee, apart from the litis expensae already paid to
him. Inasmuch as the appellee has collected, also, the sum of P80,000.00, on
account of said contingent fees, there results in his favor a balance of P304,110.97.
Subject to this qualification, the decision appealed from is hereby
affirmed, therefore, with costs against the appellants. So ordered.
Paras, C.J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador,
Reyes, J. B. L., Endencia and Felix, JJ., concur.
THIRD DIVISION
[G.R. No. 154830. June 8, 2007.]
16. PIONEER CONCRETE PHILIPPINES, INC., PIONEER PHILIPPINES
HOLDINGS, and PHILIP J. KLEPZIG, petitioners, vs. ANTONIO D.
TODARO, respondent.
DECISION
AUSTRIA-MARTINEZ, J p:
Before the Court is a Petition for Review on Certiorari seeking to annul and set aside the
Decision 1 of the Court of Appeals (CA) dated October 31, 2000 in CA-G.R. SP No. 54155
and its Resolution 2 of August 21, 2002 denying petitioners' Motion for Reconsideration.
The factual and procedural antecedents of the case are as follows:
On January 16, 1998, herein respondent Antonio D. Todaro (Todaro) filed with the
Regional Trial Court (RTC) of Makati City, a complaint for Sum of Money and Damages
with Preliminary Attachment against Pioneer International Limited (PIL), Pioneer
Concrete Philippines, Inc. (PCPI), Pioneer Philippines Holdings, Inc. (PPHI), John G.
McDonald (McDonald) and Philip J. Klepzig (Klepzig). 3
In his complaint, Todaro alleged that PIL is a corporation duly organized and existing
under the laws of Australia and is principally engaged in the ready-mix concrete and
concrete aggregates business; PPHI is the company established by PIL to own and hold
the stocks of its operating company in the Philippines; PCPI is the company established
by PIL to undertake its business of ready-mix concrete, concrete aggregates and
quarrying operations in the Philippines; McDonald is the Chief Executive of the
Hongkong office of PIL; and, Klepzig is the President and Managing Director of PPHI and
PCPI; Todaro has been the managing director of Betonval Readyconcrete, Inc.
(Betonval), a company engaged in pre-mixed concrete and concrete aggregate

production; he resigned from Betonval in February 1996; in May 1996, PIL contacted
Todaro and asked him if he was available to join them in connection with their intention
to establish a ready-mix concrete plant and other related operations in the Philippines;
Todaro informed PIL of his availability and interest to join them; subsequently, PIL and
Todaro came to an agreement wherein the former consented to engage the services
of the latter as a consultant for two to three months, after which, he would be
employed as the manager of PIL's ready-mix concrete operations should the company
decide to invest in the Philippines; subsequently, PIL started its operations in the
Philippines; however, it refused to comply with its undertaking to employ Todaro on a
permanent basis. 4
Instead of filing an Answer, PPHI, PCPI and Klepzig separately moved to dismiss the
complaint on the grounds that the complaint states no cause of action, that the RTC
has no jurisdiction over the subject matter of the complaint, as the same is within the
jurisdiction of the NLRC, and that the complaint should be dismissed on the basis of the
doctrine of forum non conveniens. 5 TIDcEH
In its Order dated January 4, 1999, the RTC of Makati, Branch 147, denied herein
petitioners' respective motions to dismiss. 6 Herein petitioners, as defendants, filed an
Urgent Omnibus Motion 7 for the reconsideration of the trial court's Order of January 4,
1999 but the trial court denied it via its Order8 dated June 3, 1999.
On August 3, 1999, herein petitioners filed a Petition for Certiorari with the CA. 9 On
October 31, 2000, the CA rendered its presently assailed Decision denying herein
petitioners' Petition for Certiorari. Petitioners filed a Motion for Reconsideration but the
CA denied it in its Resolution dated August 21, 2002.
Hence, herein Petition for Review on Certiorari based on the following assignment of
errors:
A.
THE COURT OF APPEALS' CONCLUSION THAT THE COMPLAINT STATES
A CAUSE OF ACTION AGAINST PETITIONERS IS WITHOUT ANY LEGAL
BASIS. THE ANNEXES TO THE COMPLAINT CLEARLY BELIE THE
ALLEGATION OF EXISTENCE OF AN EMPLOYMENT CONTRACT
BETWEEN PRIVATE RESPONDENT AND PETITIONERS.
B.
THE COURT OF APPEALS DECIDED A QUESTION OF SUBSTANCE IN A
WAY NOT IN ACCORD WITH LAW AND WITH APPLICABLE DECISIONS
OF THE SUPREME COURT WHEN IT UPHELD THE JURISDICTION OF THE
TRIAL COURT DESPITE THE FACT THAT THE COMPLAINT INDUBITABLY
SHOWS THAT IT IS AN ACTION FOR AN ALLEGED BREACH OF
EMPLOYMENT CONTRACT, AND HENCE, FALLS WITHIN THE
EXCLUSIVE JURISDICTION OF THE NATIONAL LABOR RELATIONS
COMMISSION.

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C
THE COURT OF APPEALS DISREGARDED AND FAILED TO CONSIDER
THE PRINCIPLE OF "FORUM NON CONVENIENS" AS A VALID GROUND
FOR DISMISSING A COMPLAINT. 10

breach of employment contract, the present case should be considered as falling

within the exclusive jurisdiction of the NLRC.

In their first assigned error, petitioners contend that there was no perfected employment
contract between PIL and herein respondent. Petitioners assert that the annexes to
respondent's complaint show that PIL's offer was for respondent to be employed as the
manager only of its pre-mixed concrete operations and not as the company's
managing director or CEO. Petitioners argue that when respondent reiterated his
intention to become the manager of PIL's overall business venture in the Philippines, he,
in effect did not accept PIL's offer of employment and instead made a counter-offer,
which, however, was not accepted by PIL. Petitioners also contend that under Article
1318 of the Civil Code, one of the requisites for a contract to be perfected is the
consent of the contracting parties; that under Article 1319 of the same Code, consent is
manifested by the meeting of the offer and the acceptance upon the thing and the
cause which are to constitute the contract; that the offer must be certain and the
acceptance absolute; that a qualified acceptance constitutes a counter-offer.
Petitioners assert that since PIL did not accept respondent's counter-offer, there never
was any employment contract that was perfected between them.

With respect to the third assigned error, petitioners assert that the principle of forum non
conveniens dictates that even where exercise of jurisdiction is authorized by law, courts
may refuse to entertain a case involving a foreign element where the matter can be
better tried and decided elsewhere, either because the main aspects of the case
transpired in a foreign jurisdiction or the material witnesses have their residence there
and the plaintiff sought the forum merely to secure procedural advantage or to annoy
or harass the defendant. Petitioners also argue that one of the factors in determining
the most convenient forum for conflicts problem is the power of the court to enforce its
decision. Petitioners contend that since the majority of the defendants in the present
case are not residents of the Philippines, they are not subject to compulsory processes
of the Philippine court handling the case for purposes of requiring their attendance
during trial. Even assuming that they can be summoned, their appearance would entail
excessive costs. Petitioners further assert that there is no allegation in the complaint from
which one can conclude that the evidence to be presented during the trial can be
better obtained in the Philippines. Moreover, the events which led to the present
controversy occurred outside the Philippines. Petitioners conclude that based on the
foregoing factual circumstances, the case should be dismissed under the principle
of forum non conveniens. IaHCAD

Petitioners further argue that respondent's claim for damages based on the provisions of
Articles 19 and 21 of the Civil Code is baseless because it was shown that there was no
perfected employment contract.

In his Comment, respondent extensively quoted the assailed CA Decision maintaining

that the factual allegations in the complaint determine whether or not the complaint
states a cause of action.

Assuming, for the sake of argument, that PIL may be held liable for breach of
employment contract, petitioners contend that PCPI and PPHI, may not also be held
liable because they are juridical entities with personalities which are separate and
distinct from PIL, even if they are subsidiary corporations of the latter. Petitioners also
aver that the annexes to respondent's complaint show that the negotiations on the
alleged employment contract took place between respondent and PIL through its
office in Hongkong. In other words, PCPI and PPHI were not privy to the negotiations
between PIL and respondent for the possible employment of the latter; and under
Article 1311 of the Civil Code, a contract is not binding upon and cannot be enforced
against one who was not a party to it even if he be aware of such contract and has
acted with knowledge thereof.

As to the question of jurisdiction, respondent contends that the complaint he filed was
not based on a contract of employment. Rather, it was based on petitioners'
unwarranted breach of their contractual obligation to employ respondent. This breach,
respondent argues, gave rise to an action for damages which is cognizable by the
regular courts.

Petitioners further assert that petitioner Klepzig may not be held liable because he is
simply acting in his capacity as president of PCPI and PPHI and settled is the rule that an
officer of a corporation is not personally liable for acts done in the performance of his
duties and within the bounds of the authority conferred on him. Furthermore, petitioners
argue that even if PCPI and PPHI are held liable, respondent still has no cause of action
against Klepzig because PCPI and PPHI have personalities which are separate and
distinct from those acting in their behalf, such as Klepzig.
As to their second assigned error, petitioners contend that since herein respondent's
claims for actual, moral and exemplary damages are solely premised on the alleged

Even assuming that there was an employment contract, respondent asserts that for the
NLRC to acquire jurisdiction, the claim for damages must have a reasonable causal
connection with the employer-employee relationship of petitioners and respondent.
Respondent further argues that there is a perfected contract between him and
petitioners as they both agreed that the latter shall employ him to manage and
operate their ready-mix concrete operations in the Philippines. Even assuming that there
was no perfected contract, respondent contends that his complaint alleges an
alternative cause of action which is based on the provisions of Articles 19 and 21 of the
Civil Code.
As to the applicability of the doctrine of forum non conveniens, respondent avers that
the question of whether a suit should be entertained or dismissed on the basis of the
principle of forum non conveniens depends largely upon the facts of the particular case
and is addressed to the sound discretion of the trial judge, who is in the best position to

277

determine whether special circumstances require that the court desist from assuming
jurisdiction over the suit.
The petition lacks merit.
Section 2, Rule 2 of the Rules of Court, as amended, defines a cause of action as the
act or omission by which a party violates a right of another. A cause of action exists if
the following elements are present: (1) a right in favor of the plaintiff by whatever means
and under whatever law it arises or is created; (2) an obligation on the part of the
named defendant to respect or not to violate such right; and, (3) an act or omission on
the part of such defendant violative of the right of the plaintiff or constituting a breach
of the obligation of the defendant to the plaintiff for which the latter may maintain an
action for recovery of damages. 11
In Hongkong and Shanghai Banking Corporation Limited v. Catalan, 12 this Court held:
The elementary test for failure to state a cause of action is whether
the complaint alleges facts which if true would justify the relief
demanded. Stated otherwise, may the court render a valid
judgment upon the facts alleged therein? The inquiry is into the
sufficiency, not the veracity of the material allegations. If the
allegations in the complaint furnish sufficient basis on which it can
be maintained, it should not be dismissed regardless of the defense
that may be presented by the defendants. 13
Moreover, the complaint does not have to establish or allege facts proving the
existence of a cause of action at the outset; this will have to be done at the trial on
the merits of the case. 14 To sustain a motion to dismiss for lack of cause of action,
the complaint must show that the claim for relief does not exist, rather than that a
claim has been defectively stated, or is ambiguous, indefinite or uncertain. 15
Hence, in resolving whether or not the Complaint in the present case states a cause of
action, the trial court correctly limited itself to examining the sufficiency of the
allegations in the Complaint as well as the annexes thereto. It is proscribed from
inquiring into the truth of the allegations in the Complaint or the authenticity of any of
the documents referred or attached to the Complaint, since these are deemed
hypothetically admitted by the respondent.
This Court has reviewed respondent's allegations in its Complaint. In a nutshell,
respondent alleged that herein petitioners reneged on their contractual obligation to
employ him on a permanent basis. This allegation is sufficient to constitute a cause of
action for damages.
The issue as to whether or not there was a perfected contract between petitioners and
respondent is a matter which is not ripe for determination in the present case; rather, this
issue must be taken up during trial, considering that its resolution would necessarily entail
an examination of the veracity of the allegations not only of herein respondent as
plaintiff but also of petitioners as defendants.

The Court does not agree with petitioners' contention that they were not privy to the
negotiations for respondent's possible employment. It is evident from paragraphs 24 to
28 of the Complaint 16 that, on various occasions, Klepzig conducted negotiations with
respondent regarding the latter's possible employment. In fact, Annex "H" 17 of the
complaint shows that it was Klepzig who informed respondent that his company was no
longer interested in employing respondent. Hence, based on the allegations in the
Complaint and the annexes attached thereto, respondent has a cause of action
against herein petitioners.
As to the question of jurisdiction, this Court has consistently held that where no
employer-employee relationship exists between the parties and no issue is involved
which may be resolved by reference to the Labor Code, other labor statutes or any
collective bargaining agreement, it is the Regional Trial Court that has jurisdiction. 18 In
the present case, no employer-employee relationship exists between petitioners and
respondent. In fact, in his complaint, private respondent is not seeking any relief under
the Labor Code, but seeks payment of damages on account of petitioners' alleged
breach of their obligation under their agreement to employ him. It is settled that an
action for breach of contractual obligation is intrinsically a civil dispute. 19 In the
alternative, respondent seeks redress on the basis of the provisions of Articles 19 and 21
of the Civil Code. Hence, it is clear that the present action is within the realm of civil law,
and jurisdiction over it belongs to the regular courts. 20
With respect to the applicability of the principle of forum non conveniens in the present
case, this Court's ruling in Bank of America NT & SA v. Court of Appeals 21 is instructive,
to wit:
The doctrine of forum non conveniens, literally meaning 'the forum
is inconvenient', emerged in private international law to deter the
practice of global forum shopping, that is to prevent non-resident
litigants from choosing the forum or place wherein to bring their suit
for malicious reasons, such as to secure procedural advantages, to
annoy and harass the defendant, to avoid overcrowded dockets,
or to select a more friendly venue. Under this doctrine, a court, in
conflicts of law cases, may refuse impositions on its jurisdiction
where it is not the most "convenient" or available forum and the
parties are not precluded from seeking remedies elsewhere.
Whether a suit should be entertained or dismissed on the basis of
said doctrine depends largely upon the facts of the particular case
and is addressed to the sound discretion of the trial court. In the
case of Communication Materials and Design, Inc. vs. Court of
Appeals, this Court held that ". . . [a] Philippine Court may assume
jurisdiction over the case if it chooses to do so; provided, that the
following requisites are met: (1) that the Philippine Court is one to
which the parties may conveniently resort to; (2) that the Philippine
Court is in a position to make an intelligent decision as to the law
and the facts; and, (3) that the Philippine Court has or is likely to
have power to enforce its decision."

278

Moreover, this Court enunciated in Philsec. Investment Corporation

vs. Court of Appeals, that the doctrine of forum non
conveniens should not be used as a ground for a motion to dismiss
because Sec. 1, Rule 16 of the Rules of Court does not include said
doctrine as a ground. This Court further ruled that while it is within
the discretion of the trial court to abstain from assuming jurisdiction
on this ground, it should do so only after vital facts are established,
to determine whether special circumstances require the court's
desistance; and that the propriety of dismissing a case based on
this principle of forum non conveniens requires a factual
determination, hence it is more properly considered a matter of
defense. 22 (emphasis supplied)
In the present case, the factual circumstances cited by petitioners which would
allegedly justify the application of the doctrine of forum non conveniensare matters of
defense, the merits of which should properly be threshed out during trial.
WHEREFORE, the instant petition is DENIED and the assailed Decision and Resolution of
the Court of Appeals are AFFIRMED.

MONTE TROPICAL FRUIT CO., CHIQUITA BRANDS INTERNATIONAL,

INC. and CHIQUITA BRANDS, INC., respondents.
DECISION
LEONARDO-DE CASTRO, J p:
Before the Court are consolidated Petitions for Review on Certiorari under Rule 45 of the
Rules of Court, which arose out of two civil cases that were filed in different courts but
whose factual background and issues are closely intertwined.
The petitions in G.R. Nos. 125078 1 and 125598 2 both assail the Order 3 dated May 20,
1996 of the Regional Trial Court (RTC) of General Santos City, Branch 37, in Civil Case No.
5617. The said Order decreed the dismissal of the case in view of the perceived lack of
jurisdiction of the RTC over the subject matter of the complaint. The petition in G.R. No.
125598 also challenges the Orders dated June 4, 1996 4 and July 9, 1996, 5 which held
that the RTC of General Santos City no longer had jurisdiction to proceed with Civil Case
No. 5617.
On the other hand, the petitions in G.R. Nos. 126654, 6 127856, 7 and 128398 8 seek the
reversal of the Order 9 dated October 1, 1996 of the RTC of Davao City, Branch 16, in
Civil Case No. 24,251-96, which also dismissed the case on the ground of lack of
jurisdiction.

Costs against petitioners.

SO ORDERED.
FIRST DIVISION
[G.R. No. 125078. May 30, 2011.]

G.R. Nos. 125078, 125598, 126654, 127856, and 128398 were consolidated in the
Resolutions dated February 10, 1997, 10 April 28, 1997 11 and March 10, 1999. 12
The factual antecedents of the petitions are as follows:

17. BERNABE L. NAVIDA, JOSE P. ABANGAN, JR., CEFERINO P.

ABARQUEZ, ORLANDITO A. ABISON, FELIPE ADAYA, ALBERTO R.
AFRICA, BENJAMIN M. ALBAO, FELIPE ALCANTARA, NUMERIANO S.
ALCARIA, FERNANDO C. ALEJADO, LEOPOLDO N. ALFONSO, FLORO
I. ALMODIEL, ANTONIO B. ALVARADO, ELEANOR AMOLATA,
RODOLFO P. ANCORDA, TRIFINO F. ANDRADA, BERT B. ANOCHE,
RAMON E. ANTECRISTO, ISAGANI D. ANTINO, DOMINGO ANTOPINA,
MANSUETO M. APARICIO, HERMINIGILDO AQUINO, MARCELO S.
AQUINO, JR., FELIPE P. ARANIA, ULYSES M. ARAS, ARSENIO ARCE,
RUPERTO G. ARINZOL, MIGUEL G. ARINZOL, EDGARADO P. ARONG,
RODRIGO D.R. ASTRALABIO, RONNIE BACAYO, SOFRONIO BALINGIT,
NELSON M. BALLENA, EMNIANO BALMONTE, MAXIMO M. BANGI,
SALVADOR M. BANGI, HERMOGENES T. BARBECHO, ARSENIO B.
BARBERO, DIOSDADO BARREDO, VIRGILIO BASAS, ALEJANDR
petitioners, vs. HON. TEODORO A. DIZON, JR., Presiding Judge,
Regional Trial Court, Branch 37, General Santos City, SHELL OIL CO.,
DOW CHEMICAL CO., OCCIDENTAL CHEMICAL CORP., STANDARD
FRUIT CO., STANDARD FRUIT & STEAMSHIP CO., DOLE FOOD CO.,
INC., DOLE FRESH FRUIT CO., DEL MONTE FRESH PRODUCE N.A., DEL

Proceedings before the Texas Courts

Beginning 1993, a number of personal injury suits were filed in different Texas state courts
by citizens of twelve foreign countries, including the Philippines. The thousands of
plaintiffs sought damages for injuries they allegedly sustained from their exposure
to dibromochloropropane (DBCP), a chemical used to kill nematodes (worms), while
working on farms in 23 foreign countries. The cases were eventually transferred to, and
consolidated in, the Federal District Court for the Southern District of Texas, Houston
Division. The cases therein that involved plaintiffs from the Philippines were "Jorge
Colindres Carcamo, et al. v. Shell Oil Co., et al.," which was docketed as Civil Action No.
H-94-1359, and "Juan Ramon Valdez, et al. v. Shell Oil Co., et al.," which was docketed
as Civil Action No. H-95-1356. The defendants in the consolidated cases prayed for the
dismissal of all the actions under the doctrine of forum non conveniens. DEScaT
In a Memorandum and Order dated July 11, 1995, the Federal District Court
conditionally granted the defendants' motion to dismiss. Pertinently, the court ordered
that:

279

Delgado, Jorge Carcamo, Valdez and Isae Carcamo will be

dismissed 90 days after the entry of this Memorandum and Order
provided that defendants and third- and fourth-party defendants
have:
(1)participated in expedited discovery in the United
States . . .;
(2)either waived or accepted service of process and
waived any other jurisdictional defense within 40
days after the entry of this Memorandum and
Order in any action commenced by a plaintiff in
these actions in his home country or the country
in which his injury occurred. Any plaintiff desiring
to bring such an action will do so within 30 days
after the entry of this Memorandum and Order;
(3)waived within 40 days after the entry of this
Memorandum and Order any limitations-based
defense that has matured since the
commencement of these actions in the courts
of Texas;
(4)stipulated within 40 days after the entry of this
Memorandum and Order that any discovery
conducted during the pendency of these
actions may be used in any foreign proceeding
to the same extent as if it had been conducted
in proceedings initiated there; and
(5)submitted within 40 days after the entry of this
Memorandum and Order an agreement binding
them to satisfy any final judgment rendered in
favor of plaintiffs by a foreign court.
xxx xxx xxx
Notwithstanding the dismissals that may result from this
Memorandum and Order, in the event that the highest court of
any foreign country finally affirms the dismissal for lack of jurisdiction
of an action commenced by a plaintiff in these actions in his home
country or the country in which he was injured, that plaintiff may
return to this court and, upon proper motion, the court will resume
jurisdiction over the action as if the case had never been dismissed
for [forum non conveniens]. 13
Civil Case No. 5617 before the RTC of General Santos City and G.R. Nos. 125078 and
125598

In accordance with the above Memorandum and Order, a total of 336 plaintiffs from
General Santos City (the petitioners in G.R. No. 125078, hereinafter referred to as
NAVIDA, et al.) filed a Joint Complaint 14 in the RTC of General Santos City on August
10, 1995. The case was docketed as Civil Case No. 5617. Named as defendants therein
were: Shell Oil Co. (SHELL); Dow Chemical Co. (DOW); Occidental Chemical Corp.
(OCCIDENTAL); Dole Food Co., Inc., Dole Fresh Fruit Co., Standard Fruit Co., Standard
Fruit and Steamship Co. (hereinafter collectively referred to as DOLE); Chiquita Brands,
Inc. and Chiquita Brands International, Inc. (CHIQUITA); Del Monte Fresh Produce N.A.
and Del Monte Tropical Fruit Co. (hereinafter collectively referred to as DEL MONTE);
Dead Sea Bromine Co., Ltd.; Ameribrom, Inc.; Bromine Compounds, Ltd.; and Amvac
Chemical Corp. (The aforementioned defendants are hereinafter collectively referred
to as defendant companies.)
NAVIDA, et al., prayed for the payment of damages in view of the illnesses and injuries
to the reproductive systems which they allegedly suffered because of their exposure to
DBCP. They claimed, among others, that they were exposed to this chemical during the
early 1970's up to the early 1980's when they used the same in the banana plantations
where they worked at; and/or when they resided within the agricultural area where
such chemical was used. NAVIDA, et al., claimed that their illnesses and injuries were
due to the fault or negligence of each of the defendant companies in that they
produced, sold and/or otherwise put into the stream of commerce DBCP-containing
products. According to NAVIDA, et al., they were allowed to be exposed to the said
products, which the defendant companies knew, or ought to have known, were highly
injurious to the former's health and well-being.
Instead of answering the complaint, most of the defendant companies respectively
filed their Motions for Bill of Particulars. 15 During the pendency of the motions, on March
13, 1996, NAVIDA, et al., filed an Amended Joint Complaint, 16 excluding Dead Sea
Bromine Co., Ltd., Ameribrom, Inc., Bromine Compounds, Ltd. and Amvac Chemical
Corp. as party defendants.
Again, the remaining defendant companies filed their various Motions for Bill of
Particulars. 17 On May 15, 1996, DOW filed an Answer with Counterclaim.18
On May 20, 1996, without resolving the motions filed by the parties, the RTC of General
Santos City issued an Order dismissing the complaint. First, the trial court determined that
it did not have jurisdiction to hear the case, to wit:
THE COMPLAINT FOR DAMAGES
FILED WITH THE REGIONAL TRIAL
COURT SHOULD BE DISMISSED FOR
LACK OF JURISDICTION
xxx xxx xxx
The substance of the cause of action as stated in the complaint
against the defendant foreign companies cites activity on their
part which took place abroad and had occurred outside and

280

beyond the territorial domain of the Philippines. These acts of

defendants cited in the complaint included the manufacture of
pesticides, their packaging in containers, their distribution through
sale or other disposition, resulting in their becoming part of the
stream of commerce.
Accordingly, the subject matter stated in the complaint and which
is uniquely particular to the present case, consisted of activity or
course of conduct engaged in by foreign defendants outside
Philippine territory, hence, outside and beyond the jurisdiction of
Philippine Courts, including the present Regional Trial Court. 19
Second, the RTC of General Santos City declared that the tort alleged by NAVIDA, et
al., in their complaint is a tort category that is not recognized in Philippine laws. Said the
trial court: IcaEDC
THE TORT ASSERTED IN THE
PRESENT COMPLAINT AGAINST
DEFENDANT FOREIGN COMPANIES IS
NOT WITHIN THE SUBJECT MATTER
JURISDICTION OF THE REGIONAL
TRIAL COURT, BECAUSE IT IS NOT A
TORT CATEGORY WITHIN THE
PURVIEW OF THE PHILIPPINE LAW
The specific tort asserted against defendant foreign companies in
the present complaint is product liability tort. When the averments
in the present complaint are examined in terms of the particular
categories of tort recognized in the Philippine Civil Code, it
becomes stark clear that such averments describe and identify the
category of specific tort known as product liability tort. This is
necessarily so, because it is the productmanufactured by
defendant foreign companies, which is asserted to be the
proximate cause of the damages sustained by the plaintiff workers,
and the liability of the defendant foreign companies, is premised
on being the manufacturer of the pesticides.
It is clear, therefore, that the Regional Trial Court has jurisdiction
over the present case, if and only if the Civil Code of the
Philippines, or a suppletory special law prescribes a product liability
tort, inclusive of and comprehending the specific tort described in
the complaint of the plaintiff workers. 20
Third, the RTC of General Santos City adjudged that NAVIDA, et al., were coerced into
submitting their case to the Philippine courts, viz.:
FILING OF CASES IN THE PHILIPPINES
COERCED AND ANOMALOUS

The Court views that the plaintiffs did not freely choose to file the
instant action, but rather were coerced to do so, merely to comply
with the U.S. District Court's Order dated July 11, 1995, and in order
to keep open to the plaintiffs the opportunity to return to the U.S.
District Court. 21
Fourth, the trial court ascribed little significance to the voluntary appearance of the
defendant companies therein, thus:
THE DEFENDANTS' SUBMISSION TO
JURISDICTION IS CONDITIONAL AS IT
IS ILLUSORY
Defendants have appointed their agents authorized to accept
service of summons/processes in the Philippines pursuant to the
agreement in the U.S. court that defendants will voluntarily submit
to the jurisdiction of this court. While it is true that this court acquires
jurisdiction over persons of the defendants through their voluntary
appearance, it appears that such voluntary appearance of the
defendants in this case is conditional. Thus in the "Defendants'
Amended Agreement Regarding Conditions of Dismissal for Forum
Non Conveniens" (Annex to the Complaint) filed with the U.S.
District Court, defendants declared that "(t)he authority of each
designated representative to accept service of process will
become effective upon final dismissal of these actions by the
Court". The decision of the U.S. District Court dismissing the case is
not yet final and executory since both the plaintiffs and
defendants appealed therefrom (par. 3(h), 3(i), Amended
Complaint). Consequently, since the authority of the agent of the
defendants in the Philippines is conditioned on the final
adjudication of the case pending with the U.S. courts, the
acquisition of jurisdiction by this court over the persons of the
defendants is also conditional. . . . .
The appointment of agents by the defendants, being subject to a
suspensive condition, thus produces no legal effect and is
ineffective at the moment. 22
Fifth, the RTC of General Santos City ruled that the act of NAVIDA, et al., of filing the
case in the Philippine courts violated the rules on forum shopping and litis
pendencia. The trial court expounded:
THE JURISDICTION FROWNS UPON
AND PROHIBITS FORUM SHOPPING
This court frowns upon the fact that the parties herein are both
vigorously pursuing their appeal of the decision of the U.S. District
court dismissing the case filed thereat. To allow the parties to

281

litigate in this court when they are actively pursuing the same cases
in another forum, violates the rule on 'forum shopping' so abhorred
in this jurisdiction. . . . .
xxx xxx xxx
THE FILING OF THE CASE IN U.S.
DIVESTED THIS COURT OF ITS OWN
JURISDICTION

of their possible remedies. The court is cognizant that the Federal

Court may resume proceedings of that earlier case between the
herein parties involving the same acts or omissions as in this case.
WHEREFORE, in view of the foregoing considerations, this case is
now considered DISMISSED. 24
On June 4, 1996, the RTC of General Santos City likewise issued an Order, 25 dismissing
DOW's Answer with Counterclaim.

Moreover, the filing of the case in the U.S. courts divested this court
of its own jurisdiction. This court takes note that the U.S. District
Court did not decline jurisdiction over the cause of action. The
case was dismissed on the ground of forum non conveniens, which
is really a matter of venue. By taking cognizance of the case, the
U.S. District Court has, in essence, concurrent jurisdiction with this
court over the subject matter of this case. It is settled that initial
acquisition of jurisdiction divests another of its own jurisdiction. . . . .

CHIQUITA, DEL MONTE and SHELL each filed a motion for reconsideration 26 of the RTC
Order dated May 20, 1996, while DOW filed a motion for reconsideration 27 of the RTC
Order dated June 4, 1996. Subsequently, DOW and OCCIDENTAL also filed a Joint
Motion for Reconsideration 28 of the RTC Order dated May 20, 1996.
In an Order 29 dated July 9, 1996, the RTC of General Santos City declared that it had
already lost its jurisdiction over the case as it took into consideration the Manifestation of
the counsel of NAVIDA, et al., which stated that the latter had already filed a petition
for review on certiorari before this Court.

xxx xxx xxx

CHIQUITA and SHELL filed their motions for reconsideration 30 of the above order.
THIS CASE IS BARRED BY THE RULE
OF "LITIS PENDENCIA"
Furthermore, the case filed in the U.S. court involves the same
parties, same rights and interests, as in this case. There exists litis
pendencia since there are two cases involving the same parties
and interests. The court would like to emphasize that in
accordance with the rule on litis pendencia. . .; the subsequent
case must be dismissed. Applying the foregoing [precept] to the
case-at-bar, this court concludes that since the case between the
parties in the U.S. is still pending, then this case is barred by the rule
on "litis pendencia." 23
In fine, the trial court held that:
It behooves this Court, then to dismiss this case. For to continue with
these proceedings, would be violative of the constitutional
provision on the Bill of Rights guaranteeing speedy disposition of
cases (Ref. Sec. 16, Article III, Constitution). The court has no other
choice. To insist on further proceedings with this case, as it is now
presented, might accord this court a charming appearance. But
the same insistence would actually thwart the very ends of justice
which it seeks to achieve. DcCEHI
This evaluation and action is made not on account of but rather
with due consideration to the fact that the dismissal of this case
does not necessarily deprive the parties especially the plaintiffs

On July 11, 1996, NAVIDA, et al., filed a Petition for Review on Certiorari in order to assail
the RTC Order dated May 20, 1996, which was docketed asG.R. No. 125078.
The RTC of General Santos City then issued an Order 31 dated August 14, 1996, which
merely noted the incidents still pending in Civil Case No. 5617 and reiterated that it no
longer had any jurisdiction over the case.
On August 30, 1996, DOW and OCCIDENTAL filed their Petition for Review
on Certiorari, 32 challenging the orders of the RTC of General Santos City dated May 20,
1996, June 4, 1996 and July 9, 1996. Their petition was docketed as G.R. No. 125598.
In their petition, DOW and OCCIDENTAL aver that the RTC of General Santos City erred
in ruling that it has no jurisdiction over the subject matter of the case as well as the
persons of the defendant companies.
In a Resolution 33 dated October 7, 1996, this Court resolved to consolidate G.R. No.
125598 with G.R. No. 125078.
CHIQUITA filed a Petition for Review on Certiorari, 34 which sought the reversal of the
RTC Orders dated May 20, 1996, July 9, 1996 and August 14, 1996. The petition was
docketed as G.R. No. 126018. In a Resolution 35 dated November 13, 1996, the Court
dismissed the aforesaid petition for failure of CHIQUITA to show that the RTC committed
grave abuse of discretion. CHIQUITA filed a Motion for Reconsideration, 36 but the same
was denied through a Resolution 37 dated January 27, 1997.

282

Civil Case No. 24,251-96 before the

RTC of Davao City and G.R. Nos.
126654, 127856, and 128398
Another joint complaint for damages against SHELL, DOW, OCCIDENTAL, DOLE, DEL
MONTE, and CHIQUITA was filed before Branch 16 of the RTC of Davao City by 155
plaintiffs from Davao City. This case was docketed as Civil Case No. 24,251-96. These
plaintiffs (the petitioners in G.R. No. 126654, hereinafter referred to as ABELLA, et al.)
amended their Joint-Complaint on May 21, 1996. 38
Similar to the complaint of NAVIDA, et al., ABELLA, et al., alleged that, as workers in the
banana plantation and/or as residents near the said plantation, they were made to use
and/or were exposed to nematocides, which contained the chemical DBCP.
According to ABELLA, et al., such exposure resulted in "serious and permanent injuries to
their health, including, but not limited to, sterility and severe injuries to their reproductive
capacities." 39 ABELLA, et al., claimed that the defendant companies manufactured,
produced, sold, distributed, used, and/or made available in commerce, DBCP without
warning the users of its hazardous effects on health, and without providing instructions
on its proper use and application, which the defendant companies knew or ought to
have known, had they exercised ordinary care and prudence.
Except for DOW, the other defendant companies filed their respective motions for bill of
particulars to which ABELLA, et al., filed their opposition. DOW and DEL MONTE filed their
respective Answers dated May 17, 1996 and June 24, 1996.
The RTC of Davao City, however, junked Civil Case No. 24,251-96 in its Order dated
October 1, 1996, which, in its entirety, reads:
Upon a thorough review of the Complaint and Amended
Complaint for: Damages filed by the plaintiffs against the
defendants Shell Oil Company, DOW Chemicals Company,
Occidental Chemical Corporation, Standard Fruit Company,
Standard Fruit and Steamship, DOLE Food Company, DOLE Fresh
Fruit Company, Chiquita Brands, Inc., Chiquita Brands International,
Del Monte Fresh Produce, N.A. and Del Monte Tropical Fruits Co.,
all foreign corporations with Philippine Representatives, the Court,
as correctly pointed out by one of the defendants, is convinced
that plaintiffs "would have this Honorable Court dismiss the case to
pave the way for their getting an affirmance by the Supreme
Court" (#10 of Defendants' Del Monte Fresh Produce, N.A. and Del
Monte Tropical Fruit Co., Reply to Opposition dated July 22, 1996).
Consider these:
1)In the original Joint Complaint, plaintiffs state that:
defendants have no properties in the Philippines; they
have no agents as well (par. 18); plaintiffs are suing the

defendants for tortuous acts committed by these foreign

corporations on their respective countries, as plaintiffs,
after having elected to sue in the place of defendants'
residence, are now compelled by a decision of a Texas
District Court to file cases under torts in this jurisdiction
for causes of actions which occurred abroad (par. 19); a
petition was filed by same plaintiffs against same
defendants in the Courts of Texas, USA, plaintiffs seeking
for payment of damages based on negligence, strict
liability, conspiracy and international tort theories (par.
27); upon defendants' Motion to Dismiss on Forum non
[conveniens], said petition was provisionally dismissed on
condition that these cases be filed in the Philippines or
before 11 August 1995 (Philippine date; Should the
Philippine Courts refuse or deny jurisdiction, the U. S.
Courts will reassume jurisdiction.)
11.In the Amended Joint Complaint, plaintiffs aver that: on 11 July
1995, the Federal District Court issued a Memorandum
and Order conditionally dismissing several of the
consolidated actions including those filed by the Filipino
complainants. One of the conditions imposed was for the
plaintiffs to file actions in their home countries or the
countries in which they were injured . . . . Notwithstanding,
the Memorandum and [O]rder further provided that
should the highest court of any foreign country affirm the
dismissal for lack of jurisdictions over these actions filed by
the plaintiffs in their home countries [or] the countries
where they were injured, the said plaintiffs may return to
that court and, upon proper motion, the Court will resume
jurisdiction as if the case had never been dismissed for
forum non conveniens.
The Court however is constrained to dismiss the case at bar not
solely on the basis of the above but because it shares the opinion
of legal experts given in the interview made by the Inquirer in its
Special report "Pesticide Cause Mass Sterility," to wit:
1.Former Justice Secretary Demetrio Demetria in a May
1995 opinion said: The Philippines should be an
inconvenient forum to file this kind of damage
suit against foreign companies since the causes
of action alleged in the petition do not exist
under Philippine laws. There has been no
decided case in Philippine Jurisprudence
awarding to those adversely affected by DBCP.
This means there is no available evidence which
will prove and disprove the relation between
sterility and DBCP.

283

2.Retired Supreme Court Justice Abraham Sarmiento

opined that while a class suit is allowed in the
Philippines the device has been employed
strictly. Mass sterility will not qualify as a class suit
injury within the contemplation of Philippine
statute.
3.Retired High Court Justice Rodolfo Nocom stated that
there is simply an absence of doctrine here that
permits these causes to be heard. No product
liability ever filed or tried here.
Case ordered dismissed. 40
Docketed as G.R. No. 126654, the petition for review, filed on November 12, 1996 by
ABELLA, et al., assails before this Court the above-quoted order of the RTC of Davao
City.
ABELLA, et al., claim that the RTC of Davao City erred in dismissing Civil Case No. 24,25196 on the ground of lack of jurisdiction.
According to ABELLA, et al., the RTC of Davao City has jurisdiction over the subject
matter of the case since Articles 2176 and 2187 of the Civil Code are broad enough to
cover the acts complained of and to support their claims for damages. CaEIST
ABELLA, et al., further aver that the dismissal of the case, based on the opinions of legal
luminaries reported in a newspaper, by the RTC of Davao City is bereft of basis.
According to them, their cause of action is based on quasi-delict under Article 2176 of
the Civil Code. They also maintain that the absence of jurisprudence regarding the
award of damages in favor of those adversely affected by the DBCP does not preclude
them from presenting evidence to prove their allegations that their exposure to DBCP
caused their sterility and/or infertility.
SHELL, DOW, and CHIQUITA each filed their respective motions for reconsideration of the
Order dated October 1, 1996 of the RTC of Davao City. DEL MONTE also filed its motion
for reconsideration, which contained an additional motion for the inhibition of the
presiding judge.
The presiding judge of Branch 16 then issued an Order 41 dated December 2, 1996,
voluntarily inhibiting himself from trying the case. Thus, the case was re-raffled to Branch
13 of the RTC of Davao City.
In an Order 42 dated December 16, 1996, the RTC of Davao City affirmed the Order
dated October 1, 1996, and denied the respective motions for reconsideration filed by
defendant companies.

Thereafter, CHIQUITA filed a Petition for Review dated March 5, 1997, questioning the
Orders dated October 1, 1996 and December 16, 1996 of the RTC of Davao City. This
case was docketed as G.R. No. 128398.
In its petition, CHIQUITA argues that the RTC of Davao City erred in dismissing the
case motu proprio as it acquired jurisdiction over the subject matter of the case as well
as over the persons of the defendant companies which voluntarily appeared before it.
CHIQUITA also claims that the RTC of Davao City cannot dismiss the case simply on the
basis of opinions of alleged legal experts appearing in a newspaper article.
Initially, this Court in its Resolution 43 dated July 28, 1997, dismissed the petition filed by
CHIQUITA for submitting a defective certificate against forum shopping. CHIQUITA,
however, filed a motion for reconsideration, which was granted by this Court in the
Resolution 44 dated October 8, 1997.
On March 7, 1997, DEL MONTE also filed its petition for review on certiorari before this
Court assailing the above-mentioned orders of the RTC of Davao City. Its petition was
docketed as G.R. No. 127856.
DEL MONTE claims that the RTC of Davao City has jurisdiction over Civil Case No. 24,25196, as defined under the law and that the said court already obtained jurisdiction over
its person by its voluntary appearance and the filing of a motion for bill of particulars
and, later, an answer to the complaint. According to DEL MONTE, the RTC of Davao
City, therefore, acted beyond its authority when it dismissed the case motu proprio or
without any motion to dismiss from any of the parties to the case.
In the Resolutions dated February 10, 1997, April 28, 1997, and March 10, 1999, this Court
consolidated G.R. Nos. 125078, 125598, 126654, 127856, and 128398.
The Consolidated Motion to Drop
DOW, OCCIDENTAL, and SHELL
as Party-Respondents filed by
NAVIDA, et al. and ABELLA, et al.
On September 26, 1997, NAVIDA, et al., and ABELLA, et al., filed before this Court a
Consolidated Motion (to Drop Party-Respondents). 45 The plaintiff claimants alleged
that they had amicably settled their cases with DOW, OCCIDENTAL, and SHELL
sometime in July 1997. This settlement agreement was evidenced by facsimiles of the
"Compromise Settlement, Indemnity, and Hold Harmless Agreement," which were
attached to the said motion. Pursuant to said agreement, the plaintiff claimants sought
to withdraw their petitions as against DOW, OCCIDENTAL, and SHELL.

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DOLE, DEL MONTE and CHIQUITA, however, opposed the motion, as well as the
settlement entered into between the plaintiff claimants and DOW, OCCIDENTAL, and
SHELL.
The Memoranda of the Parties
Considering the allegations, issues, and arguments adduced by the parties, this Court, in
a Resolution dated June 22, 1998, 46 required all the parties to submit their respective
memoranda.
CHIQUITA filed its Memorandum on August 28, 1998; 47 SHELL asked to be excused from
the filing of a memorandum alleging that it had already executed a compromise
agreement with the plaintiff claimants. 48 DOLE filed its Memorandum on October 12,
1998 49 while DEL MONTE filed on October 13, 1998. 50 NAVIDA, et al., and ABELLA, et
al., filed their Consolidated Memorandum on February 3, 1999; 51 and DOW and
OCCIDENTAL jointly filed a Memorandum on December 23, 1999. 52
The Motion to Withdraw Petition for
Review in G.R. No. 125598

In their Consolidated Memorandum, NAVIDA, et al., and ABELLA, et al., presented the
following issues for our consideration:
IN REFUTATION
I.THE COURT DISMISSED THE CASE DUE TO LACK OF JURISDICTION.
a)The court did not simply dismiss the case because it was
filed in bad faith with petitioners intending to
have the same dismissed and returned to the
Texas court.
b)The court dismissed the case because it was convinced
that it did not have jurisdiction.
IN SUPPORT OF THE PETITION
II.THE TRIAL COURT HAS JURISDICTION OVER THE SUBJECT MATTER OF
THE CASE.
a.The acts complained of occurred within Philippine
territory.

On July 13, 2004, DOW and OCCIDENTAL filed a Motion to Withdraw Petition for Review
in G.R. No. 125598, 53 explaining that the said petition "is already moot and academic
and no longer presents a justiciable controversy" since they have already entered into
an amicable settlement with NAVIDA,et al. DOW and OCCIDENTAL added that they
have fully complied with their obligations set forth in the 1997 Compromise Agreements.

b.Art. 2176 of the Civil Code of the Philippines is broad

enough to cover the acts complained of.
c.Assumption of jurisdiction by the U.S. District Court over
petitioner[s'] claims did not divest Philippine
[c]ourts of jurisdiction over the same. cICHTD

DOLE filed its Manifestation dated September 6, 2004, 54 interposing no objection to the
withdrawal of the petition, and further stating that they maintain their position that DOW
and OCCIDENTAL, as well as other settling defendant companies, should be retained as
defendants for purposes of prosecuting the cross-claims of DOLE, in the event that the
complaint below is reinstated.
NAVIDA, et al., also filed their Comment dated September 14, 2004, 55 stating that they
agree with the view of DOW and OCCIDENTAL that the petition in G.R. No. 125598 has
become moot and academic because Civil Case No. 5617 had already been
amicably settled by the parties in 1997.
On September 27, 2004, DEL MONTE filed its Comment on Motion to Withdraw Petition
for Review Filed by Petitioners in G.R. No. 125598, 56 stating that it has no objections to
the withdrawal of the petition filed by DOW and OCCIDENTAL in G.R. No. 125598.
In a Resolution 57 dated October 11, 2004, this Court granted, among others, the motion
to withdraw petition for review filed by DOW and OCCIDENTAL.
THE ISSUES

d.The Compromise Agreement and the subsequent

Consolidated Motion to Drop Party Respondents
Dow, Occidental and Shell does not unjustifiably
prejudice remaining respondents Dole, Del
Monte and Chiquita. 58
DISCUSSION
On the issue of jurisdiction
Essentially, the crux of the controversy in the petitions at bar is whether the RTC of
General Santos City and the RTC of Davao City erred in dismissing Civil Case Nos. 5617
and 24,251-96, respectively, for lack of jurisdiction.
Remarkably, none of the parties to this case claims that the courts a quo are bereft of
jurisdiction to determine and resolve the above-stated cases. All parties contend that

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the RTC of General Santos City and the RTC of Davao City have jurisdiction over the
action for damages, specifically for approximately P2.7 million for each of the plaintiff
claimants.
NAVIDA, et al., and ABELLA, et al., argue that the allegedly tortious acts and/or
omissions of defendant companies occurred within Philippine territory. Specifically, the
use of and exposure to DBCP that was manufactured, distributed or otherwise put into
the stream of commerce by defendant companies happened in the Philippines. Said
fact allegedly constitutes reasonable basis for our courts to assume jurisdiction over the
case. Furthermore, NAVIDA, et al., and ABELLA, et al., assert that the provisions of
Chapter 2 of the Preliminary Title of the Civil Code, as well as Article 2176 thereof, are
broad enough to cover their claim for damages. Thus, NAVIDA, et al., and ABELLA, et
al., pray that the respective rulings of the RTC of General Santos City and the RTC of
Davao City in Civil Case Nos. 5617 and 24,251-96 be reversed and that the said cases
be remanded to the courts a quo for further proceedings.
DOLE similarly maintains that the acts attributed to defendant companies constitute
a quasi-delict, which falls under Article 2176 of the Civil Code. In addition, DOLE states
that if there were no actionable wrongs committed under Philippine law, the courts a
quo should have dismissed the civil cases on the ground that the Amended JointComplaints of NAVIDA, et al., and ABELLA, et al., stated no cause of action against the
defendant companies. DOLE also argues that if indeed there is no positive law defining
the alleged acts of defendant companies as actionable wrong, Article 9 of the Civil
Code dictates that a judge may not refuse to render a decision on the ground of
insufficiency of the law. The court may still resolve the case, applying the customs of the
place and, in the absence thereof, the general principles of law. DOLE posits that the
Philippines is the situs of the tortious acts allegedly committed by defendant companies
as NAVIDA, et al., and ABELLA, et al., point to their alleged exposure to DBCP which
occurred in the Philippines, as the cause of the sterility and other reproductive system
problems that they allegedly suffered. Finally, DOLE adds that the RTC of Davao City
gravely erred in relying upon newspaper reports in dismissing Civil Case No. 24,251-96
given that newspaper articles are hearsay and without any evidentiary value. Likewise,
the alleged legal opinions cited in the newspaper reports were taken judicial notice of,
without any notice to the parties. DOLE, however, opines that the dismissal of Civil Case
Nos. 5617 and 24,251-96 was proper, given that plaintiff claimants merely prosecuted
the cases with the sole intent of securing a dismissal of the actions for the purpose of
convincing the U.S. Federal District Court to re-assume jurisdiction over the cases.
In a similar vein, CHIQUITA argues that the courts a quo had jurisdiction over the subject
matter of the cases filed before them. The Amended Joint-Complaints sought
approximately P2.7 million in damages for each plaintiff claimant, which amount falls
within the jurisdiction of the RTC. CHIQUITA avers that the pertinent matter is the place of
the alleged exposure to DBCP, not the place of manufacture, packaging, distribution,
sale, etc., of the said chemical. This is in consonance with the lex loci delicti
commisi theory in determining the situs of a tort, which states that the law of the place
where the alleged wrong was committed will govern the action. CHIQUITA and the
other defendant companies also submitted themselves to the jurisdiction of the RTC by
making voluntary appearances and seeking for affirmative reliefs during the course of
the proceedings. None of the defendant companies ever objected to the exercise of

jurisdiction by the courts a quo over their persons. CHIQUITA, thus, prays for the remand
of Civil Case Nos. 5617 and 24,251-96 to the RTC of General Santos City and the RTC of
Davao City, respectively.
The RTC of General Santos City and the RTC of Davao City have jurisdiction over
Civil Case Nos. 5617 and 24,251-96, respectively
The rule is settled that jurisdiction over the subject matter of a case is conferred by law
and is determined by the allegations in the complaint and the character of the relief
sought, irrespective of whether the plaintiffs are entitled to all or some of the claims
asserted therein. 59 Once vested by law, on a particular court or body, the jurisdiction
over the subject matter or nature of the action cannot be dislodged by anybody other
than by the legislature through the enactment of a law.
At the time of the filing of the complaints, the jurisdiction of the RTC in civil cases under
Batas Pambansa Blg. 129, as amended by Republic Act No. 7691, was:
SEC. 19.Jurisdiction in civil cases. Regional Trial Courts shall
exercise exclusive original jurisdiction:
xxx xxx xxx
(8)In all other cases in which the demand, exclusive of interest,
damages of whatever kind, attorney's fees, litigation expenses, and
costs or the value of the property in controversy exceeds One
hundred thousand pesos (P100,000.00) or, in such other cases in
Metro Manila, where the demand, exclusive of the
abovementioned items exceeds Two hundred thousand pesos
(P200,000.00). 60
Corollary thereto, Supreme Court Administrative Circular No. 09-94, states:
2.The exclusion of the term "damages of whatever kind" in
determining the jurisdictional amount under Section 19 (8) and
Section 33 (1) of B.P. Blg. 129, as amended by R.A. No. 7691,
applies to cases where the damages are merely incidental to or a
consequence of the main cause of action. However, in cases
where the claim for damages is the main cause of action, or one
of the causes of action, the amount of such claim shall be
considered in determining the jurisdiction of the court.
Here, NAVIDA, et al., and ABELLA, et al., sought in their similarly-worded Amended JointComplaints filed before the courts a quo, the following prayer:
PRAYER

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WHEREFORE, premises considered, it is most respectfully prayed

that after hearing, judgment be rendered in favor of the plaintiffs
ordering the defendants:
a)TO PAY EACH PLAINTIFF moral damages in the amount of One
Million Five Hundred Thousand Pesos (P1,500,000.00);
b)TO PAY EACH PLAINTIFF nominal damages in the amount of Four
Hundred Thousand Pesos (P400,000.00) each;
c)TO PAY EACH PLAINTIFF exemplary damages in the amount of Six
Hundred Thousand Pesos (P600,000.00);
d)TO PAY EACH PLAINTIFF attorneys fees of Two Hundred Thousand
Pesos (P200,000.00); and
e)TO PAY THE COSTS of the suit. 61

6.THE DEFENDANTS WERE AT FAULT OR WERE NEGLIGENT IN THAT THEY

MANUFACTURED, produced, sold, and/or USED DBCP and/or
otherwise, PUT THE SAME into the stream of commerce, WITHOUT
INFORMING THE USERS OF ITS HAZARDOUS EFFECTS ON HEALTH
AND/OR WITHOUT INSTRUCTIONS ON ITS PROPER USE AND
APPLICATION. THEY allowed Plaintiffs to be exposed to, DBCPcontaining materials which THEY knew, or in the exercise of
ordinary care and prudence ought to have known, were highly
harmful and injurious to the Plaintiffs' health and well-being.
7.The Defendants WHO MANUFACTURED, PRODUCED, SOLD,
DISTRIBUTED, MADE AVAILABLE OR PUT DBCP INTO THE STREAM OF
COMMERCE were negligent OR AT FAULT in that they, AMONG
OTHERS:
a.Failed to adequately warn Plaintiffs of the dangerous
characteristics of DBCP, or to cause their
subsidiaries or affiliates to so warn plaintiffs;

From the foregoing, it is clear that the claim for damages is the main cause of action
and that the total amount sought in the complaints is approximately P2.7 million for
each of the plaintiff claimants. The RTCs unmistakably have jurisdiction over the cases
filed in General Santos City and Davao City, as both claims by NAVIDA, et al., and
ABELLA, et al., fall within the purview of the definition of the jurisdiction of the RTC under
Batas Pambansa Blg. 129. EaIDAT

b.Failed to provide plaintiffs with information as to what

should be reasonably safe and sufficient
clothing and proper protective equipment and
appliances, if any, to protect plaintiffs from the
harmful effects of exposure to DBCP, or to cause
their subsidiaries or affiliates to do so;

Moreover, the allegations in both Amended Joint-Complaints narrate that:

c.Failed to place adequate warnings, in a language

understandable to the worker, on containers of
DBCP-containing materials to warn of the
dangers to health of coming into contact with
DBCP, or to cause their subsidiaries or affiliates to
do so;

THE CAUSES OF ACTION

4.The Defendants manufactured, sold, distributed, used, AND/OR
MADE AVAILABLE IN COMMERCE nematocides containing the
chemical dibromochloropropane, commonly known as DBCP. THE
CHEMICAL WAS USED AGAINST the parasite known as the
nematode, which plagued banana plantations, INCLUDING THOSE
in the Philippines. AS IT TURNED OUT, DBCP not only destroyed
nematodes. IT ALSO CAUSED ILL-EFFECTS ON THE HEALTH OF
PERSONS EXPOSED TO IT AFFECTING the human reproductive
system as well.
5.The plaintiffs were exposed to DBCP in the 1970s up to the early
1980s WHILE (a) they used this product in the banana plantations
WHERE they were employed, and/or (b) they resided within the
agricultural area WHERE IT WAS USED. As a result of such exposure,
the plaintiffs suffered serious and permanent injuries TO THEIR
HEALTH, including, but not limited to, STERILITY and severe injuries to
their reproductive capacities.

d.Failed to take reasonable precaution or to exercise

reasonable care to publish, adopt and enforce
a safety plan and a safe method of handling
and applying DBCP, or to cause their subsidiaries
or affiliates to do so;
e.Failed to test DBCP prior to releasing these products for
sale, or to cause their subsidiaries or affiliates to
do so; and
f.Failed to reveal the results of tests conducted on DBCP
to each plaintiff, governmental agencies and
the public, or to cause their subsidiaries or
affiliate to do so.

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8.The illnesses and injuries of each plaintiff are also due to the FAULT
or negligence of defendants Standard Fruit Company, Dole Fresh
Fruit Company, Dole Food Company, Inc., Chiquita Brands, Inc.
and Chiquita Brands International, Inc. in that they failed to
exercise reasonable care to prevent each plaintiff's harmful
exposure to DBCP-containing products which defendants knew or
should have known were hazardous to each plaintiff in that they,
AMONG OTHERS:
a.Failed to adequately supervise and instruct Plaintiffs in
the safe and proper application of DBCPcontaining products;
b.Failed to implement proper methods and techniques of
application of said products, or to cause such to
be implemented;
c.Failed to warn Plaintiffs of the hazards of exposure to
said products or to cause them to be so warned;
d.Failed to test said products for adverse health effects,
or to cause said products to be tested;
e.Concealed from Plaintiffs information concerning the
observed effects of said products on Plaintiffs;
f.Failed to monitor the health of plaintiffs exposed to said
products;
g.Failed to place adequate labels on containers of said
products to warn them of the damages of said
products; and
h.Failed to use substitute nematocides for said products or
to cause such substitutes to [be]
used. 62 (Emphasis supplied and words in
brackets ours.)
Quite evidently, the allegations in the Amended Joint-Complaints of NAVIDA, et al., and
ABELLA, et al., attribute to defendant companies certain acts and/or omissions which
led to their exposure to nematocides containing the chemical DBCP. According to
NAVIDA, et al., and ABELLA, et al., such exposure to the said chemical caused ill effects,
injuries and illnesses, specifically to their reproductive system.
Thus, these allegations in the complaints constitute the cause of action of plaintiff
claimants a quasi-delict, which under the Civil Code is defined as an act, or omission

which causes damage to another, there being fault or negligence. To be precise,

Article 2176 of the Civil Code provides:
Article 2176.Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasidelict and is governed by the provisions of this Chapter.
As specifically enumerated in the amended complaints, NAVIDA, et al., and ABELLA, et
al., point to the acts and/or omissions of the defendant companies in manufacturing,
producing, selling, using, and/or otherwise putting into the stream of commerce,
nematocides which contain DBCP, "without informing the users of its hazardous effects
on health and/or without instructions on its proper use and application." 63
Verily, in Citibank, N.A. v. Court of Appeals, 64 this Court has always reminded that
jurisdiction of the court over the subject matter of the action is determined by the
allegations of the complaint, irrespective of whether or not the plaintiffs are entitled to
recover upon all or some of the claims asserted therein. The jurisdiction of the court
cannot be made to depend upon the defenses set up in the answer or upon the motion
to dismiss, for otherwise, the question of jurisdiction would almost entirely depend upon
the defendants. What determines the jurisdiction of the court is the nature of the action
pleaded as appearing from the allegations in the complaint. The averments therein and
the character of the relief sought are the ones to be consulted.
Clearly then, the acts and/or omissions attributed to the defendant companies
constitute a quasi-delict which is the basis for the claim for damages filed by NAVIDA, et
al., and ABELLA, et al., with individual claims of approximately P2.7 million for each
plaintiff claimant, which obviously falls within the purview of the civil action jurisdiction of
the RTCs.
Moreover, the injuries and illnesses, which NAVIDA, et al., and ABELLA, et al., allegedly
suffered resulted from their exposure to DBCP while they were employed in the banana
plantations located in the Philippines or while they were residing within the agricultural
areas also located in the Philippines. The factual allegations in the Amended JointComplaints all point to their cause of action, which undeniably occurred in the
Philippines. The RTC of General Santos City and the RTC of Davao City obviously have
reasonable basis to assume jurisdiction over the cases.
It is, therefore, error on the part of the courts a quo when they dismissed the cases on
the ground of lack of jurisdiction on the mistaken assumption that the cause of action
narrated by NAVIDA, et al., and ABELLA, et al., took place abroad and had occurred
outside and beyond the territorial boundaries of the Philippines, i.e., "the manufacture of
the pesticides, their packaging in containers, their distribution through sale or other
disposition, resulting in their becoming part of the stream of commerce," 65 and, hence,
outside the jurisdiction of the RTCs.

288

Certainly, the cases below are not criminal cases where territoriality, or the situs of the
act complained of, would be determinative of jurisdiction and venue for trial of cases.
In personal civil actions, such as claims for payment of damages, the Rules of Court
allow the action to be commenced and tried in the appropriate court, where any of
the plaintiffs or defendants resides, or in the case of a non-resident defendant, where he
may be found, at the election of the plaintiff. 66 HCDAcE
In a very real sense, most of the evidence required to prove the claims of NAVIDA, et
al., and ABELLA, et al., are available only in the Philippines. First, plaintiff claimants are all
residents of the Philippines, either in General Santos City or in Davao City. Second, the
specific areas where they were allegedly exposed to the chemical DBCP are within the
territorial jurisdiction of the courts a quo wherein NAVIDA, et al., and ABELLA, et
al., initially filed their claims for damages. Third, the testimonial and documentary
evidence from important witnesses, such as doctors, co-workers, family members and
other members of the community, would be easier to gather in the Philippines.
Considering the great number of plaintiff claimants involved in this case, it is not farfetched to assume that voluminous records are involved in the presentation of
evidence to support the claim of plaintiff claimants. Thus, these additional factors,
coupled with the fact that the alleged cause of action of NAVIDA, et al., and
ABELLA, et al., against the defendant companies for damages occurred in the
Philippines, demonstrate that, apart from the RTC of General Santos City and the RTC of
Davao City having jurisdiction over the subject matter in the instant civil cases, they are,
indeed, the convenient fora for trying these cases. 67
The RTC of General Santos City
and the RTC of Davao City validly
acquired jurisdiction over the
persons of all the defendant
companies
It is well to stress again that none of the parties claims that the courts a quo lack
jurisdiction over the cases filed before them. All parties are one in asserting that the RTC
of General Santos City and the RTC of Davao City have validly acquired jurisdiction over
the persons of the defendant companies in the action below. All parties voluntarily,
unconditionally and knowingly appeared and submitted themselves to the jurisdiction
of the courts a quo.
Rule 14, Section 20 of the 1997 Rules of Civil Procedure provides that "[t]he defendant's
voluntary appearance in the action shall be equivalent to service of summons." In this
connection, all the defendant companies designated and authorized representatives
to receive summons and to represent them in the proceedings before the courts a
quo. All the defendant companies submitted themselves to the jurisdiction of the
courts a quo by making several voluntary appearances, by praying for various

affirmative reliefs, and by actively participating during the course of the proceedings
below.
In line herewith, this Court, in Meat Packing Corporation of the Philippines v.
Sandiganbayan, 68 held that jurisdiction over the person of the defendant in civil cases
is acquired either by his voluntary appearance in court and his submission to its authority
or by service of summons. Furthermore, the active participation of a party in the
proceedings is tantamount to an invocation of the court's jurisdiction and a willingness
to abide by the resolution of the case, and will bar said party from later on impugning
the court or body's jurisdiction. 69
Thus, the RTC of General Santos City and the RTC of Davao City have validly acquired
jurisdiction over the persons of the defendant companies, as well as over the subject
matter of the instant case. What is more, this jurisdiction, which has been acquired and
has been vested on the courts a quo,continues until the termination of the proceedings.
It may also be pertinently stressed that "jurisdiction" is different from the "exercise of
jurisdiction." Jurisdiction refers to the authority to decide a case, not the orders or the
decision rendered therein. Accordingly, where a court has jurisdiction over the persons
of the defendants and the subject matter, as in the case of the courts a quo, the
decision on all questions arising therefrom is but an exercise of such jurisdiction. Any error
that the court may commit in the exercise of its jurisdiction is merely an error of
judgment, which does not affect its authority to decide the case, much less divest the
court of the jurisdiction over the case. 70
Plaintiffs' purported bad faith in
filing the subject civil cases in
Philippine courts
Anent the insinuation by DOLE that the plaintiff claimants filed their cases in bad faith
merely to procure a dismissal of the same and to allow them to return to the forum of
their choice, this Court finds such argument much too speculative to deserve any merit.
It must be remembered that this Court does not rule on allegations that are
unsupported by evidence on record. This Court does not rule on allegations which are
manifestly conjectural, as these may not exist at all. This Court deals with facts, not
fancies; on realities, not appearances. When this Court acts on appearances instead of
realities, justice and law will be short-lived. 71 This is especially true with respect to
allegations of bad faith, in line with the basic rule that good faith is always presumed
and bad faith must be proved. 72
In sum, considering the fact that the RTC of General Santos City and the RTC of Davao
City have jurisdiction over the subject matter of the amended complaints filed by
NAVIDA, et al., and ABELLA, et al., and that the courts a quo have also acquired
jurisdiction over the persons of all the defendant companies, it therefore, behooves this

289

Court to order the remand of Civil Case Nos. 5617 and 24,251-96 to the RTC of General
Santos City and the RTC of Davao City, respectively.
On the issue of the dropping of
DOW, OCCIDENTAL and SHELL
as respondents in view of their
amicable settlement with NAVIDA,
et al., and ABELLA, et al.
NAVIDA, et al., and ABELLA, et al., are further praying that DOW, OCCIDENTAL and
SHELL be dropped as respondents in G.R. Nos. 125078 and 126654, as well as in Civil
Case Nos. 5617 and 24,251-96. The non-settling defendants allegedly manifested that
they intended to file their cross-claims against their co-defendants who entered into
compromise agreements. NAVIDA, et al., and ABELLA, et al., argue that the non-settling
defendants did not aver any cross-claim in their answers to the complaint and that they
subsequently sought to amend their answers to plead their cross-claims only after the
settlement between the plaintiff claimants and DOW, OCCIDENTAL, and SHELL were
executed. NAVIDA, et al., and ABELLA, et al., therefore, assert that the cross-claims are
already barred.
In their Memoranda, CHIQUITA and DOLE are opposing the above motion of NAVIDA, et
al., and ABELLA, et al., since the latter's Amended Complaints cited several instances of
tortious conduct that were allegedly committed jointly and severally by the defendant
companies. This solidary obligation on the part of all the defendants allegedly gives any
co-defendant the statutory right to proceed against the other co-defendants for the
payment of their respective shares. Should the subject motion of NAVIDA, et al., and
ABELLA, et al., be granted, and the Court subsequently orders the remand of the action
to the trial court for continuance, CHIQUITA and DOLE would allegedly be deprived of
their right to prosecute their cross-claims against their other co-defendants. Moreover, a
third party complaint or a separate trial, according to CHIQUITA, would only unduly
delay and complicate the proceedings. CHIQUITA and DOLE similarly insist that the
motion of NAVIDA, et al., and ABELLA, et al., to drop DOW, SHELL and OCCIDENTAL as
respondents in G.R. Nos. 125078 and 126654, as well as in Civil Case Nos. 5617 and
24,251-96, be denied.
Incidentally, on April 2, 2007, after the parties have submitted their respective
memoranda, DEL MONTE filed a Manifestation and Motion 73 before the Court, stating
that similar settlement agreements were allegedly executed by the plaintiff claimants
with DEL MONTE and CHIQUITA sometime in 1999. Purportedly included in the
agreements were Civil Case Nos. 5617 and 24,251-96. Attached to the said
manifestation were copies of the Compromise Settlement, Indemnity, and Hold
Harmless Agreement between DEL MONTE and the settling plaintiffs, as well as the
Release in Full executed by the latter. 74 DEL MONTE specified therein that there were
"only four (4) plaintiffs in Civil Case No. 5617 who are claiming against the Del Monte

parties" 75and that the latter have executed amicable settlements which completely
satisfied any claims against DEL MONTE. In accordance with the alleged compromise
agreements with the four plaintiffs in Civil Case No. 5617, DEL MONTE sought the
dismissal of the Amended Joint-Complaint in the said civil case. Furthermore, in view of
the above settlement agreements with ABELLA, et al., in Civil Case No. 24,251-96, DEL
MONTE stated that it no longer wished to pursue its petition in G.R. No. 127856 and
accordingly prayed that it be allowed to withdraw the same.
Having adjudged that Civil Case Nos. 5617 and 24,251-96 should be remanded to the
RTC of General Santos City and the RTC of Davao City, respectively, the Court deems
that the Consolidated Motions (to Drop Party-Respondents) filed by NAVIDA, et al., and
ABELLA, et al., should likewise be referred to the said trial courts for appropriate
disposition.
Under Article 2028 of the Civil Code, "[a] compromise is a contract whereby the parties,
by making reciprocal concessions, avoid a litigation or put an end to one already
commenced." Like any other contract, an extrajudicial compromise agreement is not
excepted from rules and principles of a contract. It is a consensual contract, perfected
by mere consent, the latter being manifested by the meeting of the offer and the
acceptance upon the thing and the cause which are to constitute the
contract. 76 Judicial approval is not required for its perfection. 77 A compromise has
upon the parties the effect and authority of res judicata 78 and this holds true even if
the agreement has not been judicially approved. 79 In addition, as a binding contract,
a compromise agreement determines the rights and obligations of only the parties to
it. 80
In light of the foregoing legal precepts, the RTC of General Santos City and the RTC of
Davao City should first receive in evidence and examine all of the alleged compromise
settlements involved in the cases at bar to determine the propriety of dropping any
party as a defendant therefrom.
The Court notes that the Consolidated Motions (to Drop Party-Respondents) that was
filed by NAVIDA, et al., and ABELLA, et al., only pertained to DOW, OCCIDENTAL and
SHELL in view of the latter companies' alleged compromise agreements with the plaintiff
claimants. However, in subsequent developments, DEL MONTE and CHIQUITA
supposedly reached their own amicable settlements with the plaintiff claimants, but DEL
MONTE qualified that it entered into a settlement agreement with only four of the
plaintiff claimants in Civil Case No. 5617. These four plaintiff claimants were allegedly the
only ones who were asserting claims against DEL MONTE. However, the said allegation
of DEL MONTE was simply stipulated in their Compromise Settlement, Indemnity, and
Hold Harmless Agreement and its truth could not be verified with certainty based on the
records elevated to this Court. Significantly, the 336 plaintiff claimants in Civil Case No.
5617 jointly filed a complaint without individually specifying their claims against DEL
MONTE or any of the other defendant companies. Furthermore, not one plaintiff
claimant filed a motion for the removal of either DEL MONTE or CHIQUITA as defendants
in Civil Case Nos. 5617 and 24,251-96. IaDcTC

290

There is, thus, a primary need to establish who the specific parties to the alleged
compromise agreements are, as well as their corresponding rights and obligations
therein. For this purpose, the courts a quo may require the presentation of additional
evidence from the parties. Thereafter, on the basis of the records of the cases at bar
and the additional evidence submitted by the parties, if any, the trial courts can then
determine who among the defendants may be dropped from the said cases.
It is true that, under Article 2194 of the Civil Code, the responsibility of two or more
persons who are liable for the same quasi-delict is solidary. A solidary obligation is one in
which each of the debtors is liable for the entire obligation, and each of the creditors is
entitled to demand the satisfaction of the whole obligation from any or all of the
debtors. 81
In solidary obligations, the paying debtor's right of reimbursement is provided for under
Article 1217 of the Civil Code, to wit:
Art. 1217.Payment made by one of the solidary debtors
extinguishes the obligation. If two or more solidary debtors offer to
pay, the creditor may choose which offer to accept.
He who made the payment may claim from his co-debtors only
the share which corresponds to each, with the interest for the
payment already made. If the payment is made before the debt is
due, no interest for the intervening period may be demanded.
When one of the solidary debtors cannot, because of his
insolvency, reimburse his share to the debtor paying the obligation,
such share shall be borne by all his co-debtors, in proportion to the
debt of each.
The above right of reimbursement of a paying debtor, and the corresponding liability of
the co-debtors to reimburse, will only arise, however, if a solidary debtor who is made to
answer for an obligation actually delivers payment to the creditor. As succinctly held
in Lapanday Agricultural Development Corporation v. Court of Appeals, 82 "[p]ayment,
which means not only the delivery of money but also the performance, in any other
manner, of the obligation, is the operative fact which will entitle either of the solidary
debtors to seek reimbursement for the share which corresponds to each of the [other]
debtors." 83
In the cases at bar, there is no right of reimbursement to speak of as yet. A trial on the
merits must necessarily be conducted first in order to establish whether or not defendant
companies are liable for the claims for damages filed by the plaintiff claimants, which
would necessarily give rise to an obligation to pay on the part of the defendants.
At the point in time where the proceedings below were prematurely halted, no crossclaims have been interposed by any defendant against another defendant. If and
when such a cross-claim is made by a non-settling defendant against a settling
defendant, it is within the discretion of the trial court to determine the propriety of

allowing such a cross-claim and if the settling defendant must remain a party to the
case purely in relation to the cross claim.
In Armed Forces of the Philippines Mutual Benefit Association, Inc. v. Court of
Appeals, 84 the Court had the occasion to state that "where there are, along with the
parties to the compromise, other persons involved in the litigation who have not taken
part in concluding the compromise agreement but are adversely affected or feel
prejudiced thereby, should not be precluded from invoking in the same proceedings an
adequate relief therefor." 85
Relevantly, in Philippine International Surety Co., Inc. v. Gonzales, 86 the Court upheld
the ruling of the trial court that, in a joint and solidary obligation, the paying debtor may
file a third-party complaint and/or a cross-claim to enforce his right to seek contribution
from his co-debtors.
Hence, the right of the remaining defendant(s) to seek reimbursement in the above
situation, if proper, is not affected by the compromise agreements allegedly entered
into by NAVIDA, et al., and ABELLA, et al., with some of the defendant companies.
WHEREFORE, the Court hereby GRANTS the petitions for review on certiorari in G.R. Nos.
125078, 126654, and 128398. We REVERSE and SET ASIDEthe Order dated May 20, 1996 of
the Regional Trial Court of General Santos City, Branch 37, in Civil Case No. 5617, and
the Order dated October 1, 1996 of the Regional Trial Court of Davao City, Branch 16,
and its subsequent Order dated December 16, 1996 denying reconsideration in Civil
Case No. 24,251-96, and REMAND the records of this case to the respective Regional
Trial Courts of origin for further and appropriate proceedings in line with the ruling herein
that said courts have jurisdiction over the subject matter of the amended complaints in
Civil Case Nos. 5617 and 24,251-96.
The Court likewise GRANTS the motion filed by Del Monte to withdraw its petition in G.R.
No. 127856. In view of the previous grant of the motion to withdraw the petition in G.R.
No. 125598, both G.R. Nos. 127856 and 125598 are considered CLOSED AND
TERMINATED.
No pronouncement as to costs.
SO ORDERED.
Corona, C.J., Velasco, Jr., Peralta * and Perez, JJ., concur.
THIRD DIVISION
[G.R. No. 149177. November 23, 2007.]
18. KAZUHIRO HASEGAWA and NIPPON ENGINEERING
CONSULTANTS CO., LTD., petitioners, vs. MINORU
KITAMURA,respondent.

291

DECISION
NACHURA, J p:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court
assailing the April 18, 2001 Decision 1 of the Court of Appeals (CA) in CA-G.R. SP No.
60827, and the July 25, 2001 Resolution 2 denying the motion for reconsideration thereof.
On March 30, 1999, petitioner Nippon Engineering Consultants Co., Ltd. (Nippon), a
Japanese consultancy firm providing technical and management support in the
infrastructure projects of foreign governments, 3 entered into an Independent
Contractor Agreement (ICA) with respondent Minoru Kitamura, a Japanese national
permanently residing in the Philippines. 4 The agreement provides that respondent was
to extend professional services to Nippon for a year starting on April 1, 1999. 5 Nippon
then assigned respondent to work as the project manager of the Southern Tagalog
Access Road (STAR) Project in the Philippines, following the company's consultancy
contract with the Philippine Government. 6
When the STAR Project was near completion, the Department of Public Works and
Highways (DPWH) engaged the consultancy services of Nippon, on January 28, 2000,
this time for the detailed engineering and construction supervision of the BongabonBaler Road Improvement (BBRI) Project. 7Respondent was named as the project
manager in the contract's Appendix 3.1. 8
On February 28, 2000, petitioner Kazuhiro Hasegawa, Nippon's general manager for its
International Division, informed respondent that the company had no more intention of
automatically renewing his ICA. His services would be engaged by the company only
up to the substantial completion of the STAR Project on March 31, 2000, just in time for
the ICA's expiry. 9 cDSAEI
Threatened with impending unemployment, respondent, through his lawyer, requested
a negotiation conference and demanded that he be assigned to the BBRI project.
Nippon insisted that respondent's contract was for a fixed term that had already
expired, and refused to negotiate for the renewal of the ICA. 10
As he was not able to generate a positive response from the petitioners, respondent
consequently initiated on June 1, 2000 Civil Case No. 00-0264 for specific performance
and damages with the Regional Trial Court of Lipa City. 11
For their part, petitioners, contending that the ICA had been perfected in Japan and
executed by and between Japanese nationals, moved to dismiss the complaint for lack
of jurisdiction. They asserted that the claim for improper pre-termination of respondent's
ICA could only be heard and ventilated in the proper courts of Japan following the
principles of lex loci celebrationis and lex contractus. 12
In the meantime, on June 20, 2000, the DPWH approved Nippon's request for the
replacement of Kitamura by a certain Y. Kotake as project manager of the BBRI
Project. 13

On June 29, 2000, the RTC, invoking our ruling in Insular Government v. Frank 14 that
matters connected with the performance of contracts are regulated by the law
prevailing at the place of performance, 15 denied the motion to dismiss. 16 The trial
court subsequently denied petitioners' motion for reconsideration, 17 prompting them to
file with the appellate court, on August 14, 2000, their first Petition for Certiorari under
Rule 65 [docketed as CA-G.R. SP No. 60205]. 18 On August 23, 2000, the CA resolved to
dismiss the petition on procedural grounds for lack of statement of material dates
and for insufficient verification and certification against forum shopping. 19 An Entry of
Judgment was later issued by the appellate court on September 20, 2000. 20
Aggrieved by this development, petitioners filed with the CA, on September 19, 2000, still
within the reglementary period, a second Petition for Certiorariunder Rule 65 already
stating therein the material dates and attaching thereto the proper verification and
certification. This second petition, which substantially raised the same issues as those in
the first, was docketed as CA-G.R. SP No. 60827. 21 DTESIA
Ruling on the merits of the second petition, the appellate court rendered the assailed
April 18, 2001 Decision 22 finding no grave abuse of discretion in the trial court's denial of
the motion to dismiss. The CA ruled, among others, that the principle of lex loci
celebrationis was not applicable to the case, because nowhere in the pleadings was
the validity of the written agreement put in issue. The CA thus declared that the trial
court was correct in applying instead the principle of lex loci solutionis. 23
Petitioners' motion for reconsideration was subsequently denied by the CA in the
assailed July 25, 2001 Resolution. 24
Remaining steadfast in their stance despite the series of denials, petitioners instituted the
instant Petition for Review on Certiorari 25 imputing the following errors to the appellate
court:
A. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
FINDING THAT THE TRIAL COURT VALIDLY EXERCISED JURISDICTION
OVER THE INSTANT CONTROVERSY, DESPITE THE FACT THAT THE
CONTRACT SUBJECT MATTER OF THE PROCEEDINGS A QUO WAS
ENTERED INTO BY AND BETWEEN TWO JAPANESE NATIONALS,
WRITTEN WHOLLY IN THE JAPANESE LANGUAGE AND EXECUTED IN
TOKYO, JAPAN.
B. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
OVERLOOKING THE NEED TO REVIEW OUR ADHERENCE TO THE
PRINCIPLE OF LEX LOCI SOLUTIONIS IN THE LIGHT OF RECENT
DEVELOPMENT[S] IN PRIVATE INTERNATIONAL LAWS. 26
The pivotal question that this Court is called upon to resolve is whether the subject
matter jurisdiction of Philippine courts in civil cases for specific performance and
damages involving contracts executed outside the country by foreign nationals may be
assailed on the principles of lex loci celebrationis, lex contractus, the "state of the most
significant relationship rule," or forum non conveniens.

292

However, before ruling on this issue, we must first dispose of the procedural matters
raised by the respondent.
Kitamura contends that the finality of the appellate court's decision in CA-G.R. SP No.
60205 has already barred the filing of the second petition docketed as CA-G.R. SP No.
60827 (fundamentally raising the same issues as those in the first one) and the instant
petition for review thereof. cDEICH
We do not agree. When the CA dismissed CA-G.R. SP No. 60205 on account of the
petition's defective certification of non-forum shopping, it was a dismissal without
prejudice. 27 The same holds true in the CA's dismissal of the said case due to defects in
the formal requirement of verification 28 and in the other requirement in Rule 46 of the
Rules of Court on the statement of the material dates. 29 The dismissal being without
prejudice, petitioners can re-file the petition, or file a second petition attaching thereto
the appropriate verification and certification as they, in fact did and stating
therein the material dates, within the prescribed period 30 in Section 4, Rule 65 of the
said Rules. 31
The dismissal of a case without prejudice signifies the absence of a decision on the
merits and leaves the parties free to litigate the matter in a subsequent action as
though the dismissed action had not been commenced. In other words, the termination
of a case not on the merits does not bar another action involving the same parties, on
the same subject matter and theory. 32
Necessarily, because the said dismissal is without prejudice and has no res
judicata effect, and even if petitioners still indicated in the verification and certification
of the second certiorari petition that the first had already been dismissed on procedural
grounds, 33 petitioners are no longer required by the Rules to indicate in their
certification of non-forum shopping in the instant petition for review of the second
certiorari petition, the status of the aforesaid first petition before the CA. In any case, an
omission in the certificate of non-forum shopping about any event that will not
constitute res judicata and litis pendentia, as in the present case, is not a fatal defect. It
will not warrant the dismissal and nullification of the entire proceedings, considering that
the evils sought to be prevented by the said certificate are no longer present. 34
The Court also finds no merit in respondent's contention that petitioner Hasegawa is only
authorized to verify and certify, on behalf of Nippon, thecertiorari petition filed with the
CA and not the instant petition. True, the Authorization 35 dated September 4, 2000,
which is attached to the secondcertiorari petition and which is also attached to the
instant petition for review, is limited in scope its wordings indicate that Hasegawa is
given the authority to sign for and act on behalf of the company only in the petition
filed with the appellate court, and that authority cannot extend to the instant petition
for review. 36 In a plethora of cases, however, this Court has liberally applied the Rules
or even suspended its application whenever a satisfactory explanation and a
subsequent fulfillment of the requirements have been made. 37 Given that petitioners
herein sufficiently explained their misgivings on this point and appended to their
Reply 38 an updated Authorization 39 for Hasegawa to act on behalf of the company
in the instant petition, the Court finds the same as sufficient compliance with the Rules .

However, the Court cannot extend the same liberal treatment to the defect in the
verification and certification. As respondent pointed out, and to which we agree,
Hasegawa is truly not authorized to act on behalf of Nippon in this case. The aforesaid
September 4, 2000 Authorization and even the subsequent August 17, 2001
Authorization were issued only by Nippon's president and chief executive officer, not by
the company's board of directors. In not a few cases, we have ruled that corporate
powers are exercised by the board of directors; thus, no person, not even its officers,
can bind the corporation, in the absence of authority from the board. 40 Considering
that Hasegawa verified and certified the petition only on his behalf and not on behalf of
the other petitioner, the petition has to be denied pursuant to Loquias v. Office of the
Ombudsman. 41 Substantial compliance will not suffice in a matter that demands strict
observance of the Rules. 42 While technical rules of procedure are designed not to
frustrate the ends of justice, nonetheless, they are intended to effect the proper and
orderly disposition of cases and effectively prevent the clogging of court
dockets. 43 CSTDIE
Further, the Court has observed that petitioners incorrectly filed a Rule 65 petition to
question the trial court's denial of their motion to dismiss. It is a well-established rule that
an order denying a motion to dismiss is interlocutory, and cannot be the subject of the
extraordinary petition for certiorari ormandamus. The appropriate recourse is to file an
answer and to interpose as defenses the objections raised in the motion, to proceed to
trial, and, in case of an adverse decision, to elevate the entire case by appeal in due
course. 44 While there are recognized exceptions to this rule, 45 petitioners' case does
not fall among them.
This brings us to the discussion of the substantive issue of the case.
Asserting that the RTC of Lipa City is an inconvenient forum, petitioners question its
jurisdiction to hear and resolve the civil case for specific performance and damages
filed by the respondent. The ICA subject of the litigation was entered into and perfected
in Tokyo, Japan, by Japanese nationals, and written wholly in the Japanese language.
Thus, petitioners posit that local courts have no substantial relationship to the
parties 46 following the [state of the] most significant relationship rule in Private
International Law. 47
The Court notes that petitioners adopted an additional but different theory when they
elevated the case to the appellate court. In the Motion to Dismiss48 filed with the trial
court, petitioners never contended that the RTC is an inconvenient forum. They merely
argued that the applicable law which will determine the validity or invalidity of
respondent's claim is that of Japan, following the principles of lex loci
celebrationis and lex contractus. 49 While not abandoning this stance in their petition
before the appellate court, petitioners on certiorari significantly invoked the defense
of forum non conveniens. 50On petition for review before this Court, petitioners dropped
their other arguments, maintained the forum non conveniens defense, and introduced
their new argument that the applicable principle is the [state of the] most significant
relationship rule. 51

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Be that as it may, this Court is not inclined to deny this petition merely on the basis of the
change in theory, as explained in Philippine Ports Authority v. City of Iloilo. 52 We only
pointed out petitioners' inconstancy in their arguments to emphasize their incorrect
assertion of conflict of laws principles.
To elucidate, in the judicial resolution of conflicts problems, three consecutive phases
are involved: jurisdiction, choice of law, and recognition and enforcement of
judgments. Corresponding to these phases are the following questions: (1) Where can or
should litigation be initiated? (2) Which law will the court apply? and (3) Where can the
resulting judgment be enforced? 53 HDTISa
Analytically, jurisdiction and choice of law are two distinct concepts. 54 Jurisdiction
considers whether it is fair to cause a defendant to travel to this state; choice of law asks
the further question whether the application of a substantive law which will determine
the merits of the case is fair to both parties. The power to exercise jurisdiction does not
automatically give a state constitutional authority to apply forum law. While jurisdiction
and the choice of thelex fori will often coincide, the "minimum contacts" for one do not
always provide the necessary "significant contacts" for the other. 55 The question of
whether the law of a state can be applied to a transaction is different from the question
of whether the courts of that state have jurisdiction to enter a judgment. 56
In this case, only the first phase is at issue jurisdiction. Jurisdiction, however, has various
aspects. For a court to validly exercise its power to adjudicate a controversy, it must
have jurisdiction over the plaintiff or the petitioner, over the defendant or the
respondent, over the subject matter, over the issues of the case and, in cases involving
property, over the res or the thing which is the subject of the litigation. 57 In assailing the
trial court's jurisdiction herein, petitioners are actually referring to subject matter
jurisdiction.
Jurisdiction over the subject matter in a judicial proceeding is conferred by the
sovereign authority which establishes and organizes the court. It is given only by law and
in the manner prescribed by law. 58 It is further determined by the allegations of the
complaint irrespective of whether the plaintiff is entitled to all or some of the claims
asserted therein. 59 To succeed in its motion for the dismissal of an action for lack of
jurisdiction over the subject matter of the claim, 60 the movant must show that the court
or tribunal cannot act on the matter submitted to it because no law grants it the power
to adjudicate the claims. 61
In the instant case, petitioners, in their motion to dismiss, do not claim that the trial court
is not properly vested by law with jurisdiction to hear the subject controversy for, indeed,
Civil Case No. 00-0264 for specific performance and damages is one not capable of
pecuniary estimation and is properly cognizable by the RTC of Lipa City. 62 What they
rather raise as grounds to question subject matter jurisdiction are the principles of lex loci
celebrationis and lex contractus, and the "state of the most significant relationship rule."
The Court finds the invocation of these grounds unsound. DCASIT

Lex loci celebrationis relates to the "law of the place of the ceremony" 63 or the law of
the place where a contract is made. 64 The doctrine of lex contractus or lex loci
contractus means the "law of the place where a contract is executed or to be
performed." 65 It controls the nature, construction, and validity of the contract 66 and it
may pertain to the law voluntarily agreed upon by the parties or the law intended by
them either expressly or implicitly. 67 Under the "state of the most significant relationship
rule," to ascertain what state law to apply to a dispute, the court should determine
which state has the most substantial connection to the occurrence and the parties. In a
case involving a contract, the court should consider where the contract was made, was
negotiated, was to be performed, and the domicile, place of business, or place of
incorporation of the parties. 68 This rule takes into account several contacts and
evaluates them according to their relative importance with respect to the particular
issue to be resolved. 69
Since these three principles in conflict of laws make reference to the law applicable to
a dispute, they are rules proper for the second phase, the choice of law. 70 They
determine which state's law is to be applied in resolving the substantive issues of a
conflicts problem. 71 Necessarily, as the only issue in this case is that of jurisdiction,
choice-of-law rules are not only inapplicable but also not yet called for.
Further, petitioners' premature invocation of choice-of-law rules is exposed by the fact
that they have not yet pointed out any conflict between the laws of Japan and ours.
Before determining which law should apply, first there should exist a conflict of laws
situation requiring the application of the conflict of laws rules. 72 Also, when the law of a
foreign country is invoked to provide the proper rules for the solution of a case, the
existence of such law must be pleaded and proved. 73
It should be noted that when a conflicts case, one involving a foreign element, is
brought before a court or administrative agency, there are three alternatives open to
the latter in disposing of it: (1) dismiss the case, either because of lack of jurisdiction or
refusal to assume jurisdiction over the case; (2) assume jurisdiction over the case and
apply the internal law of the forum; or (3) assume jurisdiction over the case and take
into account or apply the law of some other State or States. 74 The court's power to hear
cases and controversies is derived from the Constitution and the laws. While it may
choose to recognize laws of foreign nations, the court is not limited by foreign sovereign
law short of treaties or other formal agreements, even in matters regarding rights
provided by foreign sovereigns. 75 EASIHa
Neither can the other ground raised, forum non conveniens, 76 be used to deprive the
trial court of its jurisdiction herein. FIRST, it is not a proper basis for a motion to dismiss
because Section 1, Rule 16 of the Rules of Court does not include it as a
ground. 77 SECOND, whether a suit should be entertained or dismissed on the basis of
the said doctrine depends largely upon the facts of the particular case and is
addressed to the sound discretion of the trial court. 78 In this case, the RTC decided to
assume jurisdiction. THIRD, the propriety of dismissing a case based on this principle
requires a factual determination; hence, this conflicts principle is more properly
considered a matter of defense. 79

294

Accordingly, since the RTC is vested by law with the power to entertain and hear the
civil case filed by respondent and the grounds raised by petitioners to assail that
jurisdiction are inappropriate, the trial and appellate courts correctly denied the
petitioners' motion to dismiss.
WHEREFORE, premises considered, the petition for review on certiorari is DENIED. SO
ORDERED.
FIRST DIVISION
[G.R. No. 136804. February 19, 2003.]
19. MANUFACTURERS HANOVER TRUST CO. and/or CHEMICAL
BANK, petitioners, vs. RAFAEL MA. GUERRERO, respondent.
Sycip Salazar Hernandez and Gatmaitan for petitioners.
P.C. Nolasco & Associates for respondent.
DECISION
CARPIO, J p:
The Case
This is a petition for review under Rule 45 of the Rules of Court to set aside the Court of
Appeals 1 Decision of August 24, 1998 and Resolution of December 14, 1998 in CA-G.R.
SP No. 42310 2 affirming the trial court's denial of petitioners' motion for partial summary
judgment.
The Antecedents
On May 17, 1994, respondent Rafael Ma. Guerrero ("Guerrero" for brevity) filed a
complaint for damages against petitioner Manufacturers Hanover Trust Co. and/or
Chemical Bank ("the Bank" for brevity) with the Regional Trial Court of Manila ("RTC" for
brevity). Guerrero sought payment of damages allegedly for (1) illegally withheld taxes
charged against interests on his checking account with the Bank; (2) a returned check
worth US$18,000.00 due to signature verification problems; and (3) unauthorized
conversion of his account. Guerrero amended his complaint on April 18, 1995.
On September 1, 1995, the Bank filed its Answer alleging, inter alia, that by stipulation
Guerrero's account is governed by New York law and this law does not permit any of
Guerrero's claims except actual damages. Subsequently, the Bank filed a Motion for
Partial Summary Judgment seeking the dismissal of Guerrero's claims for consequential,
nominal, temperate, moral and exemplary damages as well as attorney's fees on the
same ground alleged in its Answer. The Bank contended that the trial should be limited
to the issue of actual damages. Guerrero opposed the motion.

The affidavit of Alyssa Walden, a NEW YORK ATTORNEY, supported the Bank's Motion for
Partial Summary Judgment. Alyssa Walden's affidavit ("Walden affidavit" for brevity)
stated that Guerrero's New York bank account stipulated that the governing law is New
York law and that this law bars all of Guerrero's claims except actual damages. The
Philippine Consular Office in New York authenticated the Walden affidavit. STHAaD
The RTC denied the Bank's Motion for Partial Summary Judgment and its motion for
reconsideration on March 6, 1996 and July 17, 1996, respectively. The Bank filed a
petition for certiorari and prohibition with the Court of Appeals assailing the RTC Orders.
In its Decision dated August 24, 1998, the Court of Appeals dismissed the petition. On
December 14, 1998, the Court of Appeals denied the Bank's motion for reconsideration.
Hence, the instant petition.
The Ruling of the Court of Appeals
The Court of Appeals sustained the RTC orders denying the motion for partial summary
judgment. The Court of Appeals ruled that the Walden AFFIDAVIT does not serve as
PROOF of the New York LAW and jurisprudence relied on by the Bank to support its
motion. The Court of Appeals considered the New York law and jurisprudence AS
PUBLIC DOCUMENTS defined in Section 19, Rule 132 of the Rules on Evidence, as follows:
"SEC. 19.Classes of Documents. For the purpose of their
presentation in evidence, documents are either public or private.
Public documents are:
(a)The written official acts, or records of the official acts of
the sovereign authority, official bodies and
tribunals, and public officers, whether of the
Philippines, or of a foreign country;
xxx xxx xxx."
The Court of Appeals opined that the following procedure outlined in Section 24, Rule
132 should be followed in proving foreign law:
"SEC. 24.Proof of official record. The record of public documents
referred to in paragraph (a) of Section 19, when admissible for any
purpose, may be evidenced by an official publication thereof or
by a copy ATTESTED by the officer having the legal custody of the
record, or by his deputy, and accompanied, if the record is not
kept in the Philippines, with a CERTIFICATE that such officer has the
custody. If the office in which the record is kept is in a foreign
country, the certificate may be made by a secretary of the
embassy or legation, consul general, consul, vice consul, or
consular agent or by any officer in the foreign service of the

295

Philippines stationed in the foreign country in which the record is

kept, and authenticated by the seal of his office."
The Court of Appeals likewise rejected the Bank's argument that Section 2, Rule 34 of
the old Rules of Court allows the Bank to move with the supporting Walden affidavit for
partial summary judgment in its favor. The Court of Appeals clarified that the Walden
affidavit is not the supporting affidavit referred to in Section 2, Rule 34 that would prove
the lack of genuine issue between the parties. The Court of Appeals concluded that
even if the Walden affidavit is used for purposes of summary judgment, the Bank must
still comply with the procedure prescribed by the Rules to prove the foreign law.
The Issues

"Section 2.Summary judgment for defending party. A party

against whom a claim, counterclaim, or cross-claim is asserted or a
declaratory relief is sought may, at any time, move with supporting
affidavits for a summary judgment in his favor as to all or any part
thereof."
A court may grant a summary judgment to settle expeditiously a case if, on motion of
either party, there appears from the pleadings, depositions, admissions, and affidavits
that no important issues of fact are involved, except the amount of damages. In such
event, the moving party is entitled to a judgment as a matter of law. 4

The Bank contends that the Court of Appeals committed reversible error in

In a motion for summary judgment, the crucial question is: are the issues raised in the
pleadings genuine, sham or fictitious, as shown by affidavits, depositions or admissions
accompanying the motion? 5

". . . HOLDING THAT [THE BANK'S] PROOF OF FACTS TO SUPPORT ITS

MOTION FOR SUMMARY JUDGMENT MAY NOT BE GIVEN BY
AFFIDAVIT;

A genuine issue means an issue of fact which calls for the presentation of evidence as
distinguished from an issue which is fictitious or contrived so as not to constitute a
genuine issue for trial. 6

. . . HOLDING THAT [THE BANK'S] AFFIDAVIT, WHICH PROVES

FOREIGN LAW AS A FACT, IS "HEARSAY" AND THEREBY 'CANNOT
SERVE AS PROOF OF THE NEW YORK LAW RELIED UPON BY
PETITIONERS IN THEIR MOTION FOR SUMMARY JUDGMENT . . . .'" 3

A perusal of the parties' respective pleadings would show that there are genuine issues
of fact that necessitate formal trial. Guerrero's complaint before the RTC contains a
statement of the ultimate facts on which he relies for his claim for damages. He is
seeking damages for what he asserts as "illegally withheld taxes charged against
interests on his checking account with the Bank, a returned check worth US$18,000.00
due to signature verification problems, and unauthorized conversion of his account." In
its Answer, the Bank set up its defense that the agreed foreign law to govern their
contractual relation bars the recovery of damages other than actual. Apparently, facts
are asserted in Guerrero's complaint while specific denials and affirmative defenses are
set out in the Bank's answer. aHSTID

First, the Bank argues that in moving for partial summary judgment, it was entitled to use
the Walden affidavit to prove that the stipulated foreign law bars the claims for
consequential, moral, temperate, nominal and exemplary damages and attorney's
fees. Consequently, outright dismissal by summary judgment of these claims is
warranted.
Second, the Bank claims that the Court of Appeals mixed up the requirements of Rule
35 on summary judgments and those of a trial on the merits in considering the Walden
affidavit as "hearsay." The Bank points out that the Walden affidavit is not hearsay since
Rule 35 expressly permits the use of affidavits.
Lastly, the Bank argues that since Guerrero did not submit any opposing affidavit to
refute the facts contained in the Walden affidavit, he failed to show the need for a trial
on his claims for damages other than actual.
The Court's Ruling
The petition is devoid of merit.
The Bank filed its motion for partial summary judgment pursuant to Section 2, Rule 34 of
the old Rules of Court which reads:

True, the court can determine whether there are genuine issues in a case based merely
on the affidavits or counter-affidavits submitted by the parties to the court. However, as
correctly ruled by the Court of Appeals, the Bank's motion for partial summary judgment
as supported by the Walden affidavit does not demonstrate that Guerrero's claims are
sham, fictitious or contrived. On the contrary, the Walden affidavit shows that the facts
and material allegations as pleaded by the parties are disputed and there are
substantial triable issues necessitating a formal trial.
There can be no summary judgment where questions of fact are in issue or where
material allegations of the pleadings are in dispute. 7 The resolution of whether a foreign
law allows only the recovery of actual damages is a question of fact as far as the trial
court is concerned since foreign laws do not prove themselves in our courts. 8 Foreign
laws are not a matter of judicial notice. 9 Like any other fact, they must be alleged and
proven. Certainly, the conflicting allegations as to whether New York law or Philippine
law applies to Guerrero's claims present a clear dispute on material allegations which
can be resolved only by a trial on the merits.

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Under Section 24 of Rule 132, the record of public documents of a sovereign authority or
tribunal may be proved by (1) an official publication thereof or (2) a copy attested by
the officer having the legal custody thereof. Such official publication or copy must be
accompanied, if the record is not kept in the Philippines, with a certificate that the
attesting officer has the legal custody thereof. The certificate may be issued by any of
the authorized Philippine embassy or consular officials stationed in the foreign country in
which the record is kept, and authenticated by the seal of his office. The attestation
must state, in substance, that the copy is a correct copy of the original, or a specific
part thereof, as the case may be, and must be under the official seal of the attesting
officer.
Certain exceptions to this rule were recognized in Asiavest Limited v. Court of
Appeals 10 which held that:
"xxx xxx xxx:
Although it is desirable that foreign law be proved in accordance
with the above rule, however, the Supreme Court held in the case
of Willamette Iron and Steel Works v. Muzzal, that Section 41, Rule
123 (Section 25, Rule 132 of the Revised Rules of Court) does not
exclude the presentation of other competent evidence to prove
the existence of a foreign law. In that case, the Supreme Court
considered the testimony under oath of an attorney-at-law of San
Francisco, California, who quoted verbatim a section of California
Civil Code and who stated that the same was in force at the time
the obligations were contracted, as sufficient evidence to establish
the existence of said law. Accordingly, in line with this view, the
Supreme Court in the Collector of Internal Revenue v. Fisher, et al.,
upheld the Tax Court in considering the pertinent law of California
as proved by the respondents' witness. In that case, the counsel for
respondent "testified that as an active member of the California
Bar since 1951, he is familiar with the revenue and taxation laws of
the State of California. When asked by the lower court to state the
pertinent California law as regards exemption of intangible
personal properties, the witness cited Article 4, Sec. 13851 (a) & (b)
of the California Internal and Revenue Code as published in
Derring's California Code, a publication of Bancroft-Whitney Co.,
Inc. And as part of his testimony, a full quotation of the cited
section was offered in evidence by respondents." Likewise, in
several naturalization cases, it was held by the Court that evidence
of the law of a foreign country on reciprocity regarding the
acquisition of citizenship, although not meeting the prescribed rule
of practice, may be allowed and used as basis for favorable
action, if, in the light of all the circumstances, the Court is "satisfied
of the authenticity of the written proof offered." Thus, in a number
of decisions, mere authentication of the Chinese Naturalization
Law by the Chinese Consulate General of Manila was held to be
competent proof of that law." (Italics supplied)

The Bank, however, cannot rely on Willamete Iron and Steel Works v. Muzzal or Collector
of Internal Revenue v. Fisher to support its cause. These cases involved attorneys
testifying in open court during the trial in the Philippines and quoting the particular
foreign laws sought to be established. On the other hand, the Walden affidavit was
taken abroad ex parte and the affiant never testified in open court. The Walden
affidavit cannot be considered as proof of New York law on damages not only because
it is self-serving but also because it does not state the specific New York law on
damages. We reproduce portions of the Walden affidavit as follows:
"3.In New York, "[n]ominal damages are damages in name only,
trivial sums such as six cents or $1. Such damages are awarded
both in tort and contract cases when the plaintiff establishes a
cause of action against the defendant, but is unable to prove"
actual damages. Dobbs, Law of Remedies, 3.32 at 294 (1993).
Since Guerrero is claiming for actual damages, he cannot ask for
nominal damages.
4.There is no concept of temperate damages in New York law. I
have reviewed Dobbs, a well-respected treatise, which does not
use the phrase "temperate damages" in its index. I have also done
a computerized search for the phrase in all published New York
cases, and have found no cases that use it. I have never heard the
phrase used in American law.
5.The Uniform Commercial Code ("UCC") governs many aspects of
a Bank's relationship with its depositors. In this case, it governs
Guerrero's claim arising out of the non-payment of the $18,000
check. Guerrero claims that this was a wrongful dishonor. However,
the UCC states that "justifiable refusal to pay or accept" as
opposed to dishonor, occurs when a bank refuses to pay a check
for reasons such as a missing indorsement, a missing or illegible
signature or a forgery, 3-510, Official Comment 2. . . . to the
Complaint, MHT returned the check because it had no signature
card on . . . and could not verify Guerrero's signature. In my
opinion, consistent with the UCC, that is a legitimate and justifiable
reason not to pay.
6.Consequential damages are not available in the ordinary case of
a justifiable refusal to pay. UCC 1-106 provides that "neither
consequential or special or punitive damages may be had except
as specifically provided in the Act or by other rule of law." UCC 4103 further provides that consequential damages can be
recovered only where there is bad faith. This is more restrictive than
the New York common law, which may allow consequential
damages in a breach of contract case (as does the UCC where
there is a wrongful dishonor).

297

7.Under New York law, requests for lost profits, damage to

reputation and mental distress are considered consequential
damages. Kenford Co., Inc. v. Country of Erie, 73 N.Y.2d 312, 319,
540 N.Y.S.2d 1, 4-5 (1989) (lost profits); Motif Construction Corp. v.
Buffalo Savings Bank, 50 A.D.2d 718, 374 N.Y.S..2d 868, 869-70 (4th
Dep't 1975) damage to reputation); Dobbs, Law of Remedies
12.4(1) at 63 (emotional distress).
8.As a matter of New York law, a claim for emotional distress
cannot be recovered for a breach of contract. Geler v. National
Westminster Bank U.S.A., 770 F. Supp. 210, 215 (S.D.N.Y.
1991); Pitcherello v. Moray Homes, Ltd., 150 A.D.2d 860, 540
N.Y.S.2d 387, 390 (3d Dep't 1989)Martin v. Donald Park Acres, 54
A.D.2d 975, 389 N.Y.S..2d 31, 32 (2nd Dep't 1976). Damage to
reputation is also not recoverable for a contract.Motif Construction
Corp. v. Buffalo Savings Bank, 374 N.Y.S.2d at 869-70.
9.In cases where the issue is the breach of a contract to purchase
stock, New York courts will not take into consideration the
performance of the stock after the breach. Rather, damages will
be based on the value of the stock at the time of the
breach, Aroneck v. Atkin, 90 A.D.2d 966, 456 N.Y.S.2d 558, 559 (4th
Dep't 1982), app. den. 59 N.Y.2d 601, 449 N.E.2d 1276, 463 N.Y.S.2d
1023 (1983). TADaCH
10.Under New York law, a party can only get consequential
damages if they were the type that would naturally arise from the
breach and if they were "brought within the contemplation of
parties as the probable result of the breach at the time of or prior
to contracting." Kenford Co., Inc. v. Country of Erie, 73 N.Y.2d 312,
319, 540 N.Y.S.2d 1, 3 (1989), (quoting Chapman v. Fargo, 223 N.Y.
32, 36 (1918).
11.Under New York law, a plaintiff is not entitled to attorneys' fees
unless they are provided by contract or statute. E.g., Geler v.
National Westminster Bank, 770 F. Supp. 210, 213 (S.D.N.Y.
1991); Camatron Sewing Mach, Inc. v. F.M. Ring Assocs., Inc., 179
A.D.2d 165, 582 N.Y.S.2d 396 (1st Dep't 1992); Stanisic v. Soho
Landmark Assocs., 73 A.D.2d 268, 577 N.Y.S.2d 280, 281 (1st Dep't
1991). There is no statute that permits attorney's fees in a case of
this type.
12.Exemplary, or punitive damages are not allowed for a breach of
contract, even where the plaintiff claims the defendant acted with
malice.Geler v. National Westminster Bank, 770 F. Supp. 210, 215
(S.D.N.Y. 1991); Catalogue Service of . . . chester 11 v. Insurance
Co. of North America, 74 A.D.2d 837, 838, 425 N.Y.S.2d 635, 637 (2d

Dep't 1980); Senior v. Manufacturers Hanover Trust Co., 110 A.D.2d

833, 488 N.Y.S.2d 241, 242 (2d Dep't 1985).
13.Exemplary or punitive damages may be recovered only where it
is alleged and proven that the wrong supposedly committed by
defendant amounts to a fraud aimed at the public generally and
involves a high moral culpability. Walker v. Sheldon, 10 N.Y.2d 401,
179 N.E.2d 497, 223 N.Y.S.2d 488 (1961).
14.Furthermore, it has been consistently held under New York law
that exemplary damages are not available for a mere breach of
contract for in such a case, as a matter of law, only a private
wrong and not a public right is involved. Thaler v. The North
Insurance Company, 63 A.D.2d 921, 406 N.Y.S.2d 66 (1st Dep't
1978)." 12
The Walden affidavit states conclusions from the affiant's personal interpretation and
opinion of the facts of the case vis a vis the alleged laws and jurisprudence without
citing any law in particular. The citations in the Walden affidavit of various U.S. court
decisions do not constitute proof of the official records or decisions of the U.S. courts.
While the Bank attached copies of some of the U.S. court decisions cited in the Walden
affidavit, these copies do not comply with Section 24 of Rule 132 on proof of official
records or decisions of foreign courts.
The Bank's intention in presenting the Walden affidavit is to prove New York law and
jurisprudence. However, because of the failure to comply with Section 24 of Rule 132 on
how to prove a foreign law and decisions of foreign courts, the Walden affidavit did not
prove the current state of New York law and jurisprudence. Thus, the Bank has only
alleged, but has not proved, what New York law and jurisprudence are on the matters
at issue.
Next, the Bank makes much of Guerrero's failure to submit an opposing affidavit to the
Walden affidavit. However, the pertinent provision of Section 3, Rule 35 of the old Rules
of Court did not make the submission of an opposing affidavit mandatory, thus:
"SEC. 3.Motion and proceedings thereon. The motion shall be
served at least ten (10) days before the time specified for the
hearing. The adverse party prior to the day of hearing may serve
opposing affidavits. After the hearing, the judgment sought shall be
rendered forthwith if the pleadings, depositions and admissions on
file, together with the affidavits, show that, except as to the
amount of damages, there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law." (Italics supplied)
It is axiomatic that the term "may" as used in remedial law, is only permissive and
not mandatory. 13

298

Guerrero cannot be said to have admitted the averments in the Bank's motion for
partial summary judgment and the Walden affidavit just because he failed to file an
opposing affidavit. Guerrero opposed the motion for partial summary judgment,
although he did not present an opposing affidavit. Guerrero may not have presented
an opposing affidavit, as there was no need for one, because the Walden affidavit did
not establish what the Bank intended to prove. Certainly, Guerrero did not admit,
expressly or impliedly, the veracity of the statements in the Walden affidavit. The Bank
still had the burden of proving New York law and jurisprudence even if Guerrero did not
present an opposing affidavit. As the party moving for summary judgment, the Bank has
the burden of clearly demonstrating the absence of any genuine issue of fact and that
any doubt as to the existence of such issue is resolved against the movant. 14
Moreover, it would have been redundant and pointless for Guerrero to submit an
opposing affidavit considering that what the Bank seeks to be opposed is the very
subject matter of the complaint. Guerrero need not file an opposing affidavit to the
Walden affidavit because his complaint itself controverts the matters set forth in the
Bank's motion and the Walden affidavit. A party should not be made to deny matters
already averred in his complaint.
There being substantial triable issues between the parties, the courts a quo correctly
denied the Bank's motion for partial summary judgment. There is a need to determine
by presentation of evidence in a regular trial if the Bank is guilty of any wrongdoing and
if it is liable for damages under the applicable laws. DTEScI
This case has been delayed long enough by the Bank's resort to a motion for partial
summary judgment. Ironically, the Bank has successfully defeated the very purpose for
which summary judgments were devised in our rules, which is, to aid parties in avoiding
the expense and loss of time involved in a trial.
WHEREFORE, the petition is DENIED for lack of merit. The Decision dated August 24, 1998
and the Resolution dated December 14, 1998 of the Court of Appeals in CA-G.R. SP No.
42310 is AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., Vitug and Azcuna, JJ., concur.
Ynares-Santiago, J., took no part.
SECOND DIVISION
[G.R. No. 183622. February 8, 2012.]
20. MEROPE ENRIQUEZ VDA. DE CATALAN, petitioner, vs. LOUELLA A.
CATALAN-LEE, respondent.
RESOLUTION

SERENO, J p:
Before us is a Petition for Review assailing the Court of Appeals (CA) Decision 1 and
Resolution 2 regarding the issuance of letters of administration of the intestate estate of
Orlando B. Catalan.
The facts are as follows:
Orlando B. Catalan was a naturalized American citizen. After allegedly obtaining a
divorce in the United States from his first wife, Felicitas Amor, he contracted a second
marriage with MEROPE ENRIQUEZ VDA. DE CATALAN
On 18 November 2004, Orlando died intestate in the Philippines.
Thereafter, on 25 February 2005, petitioner filed with the Regional Trial Court (RTC) of
Burgos, Pangasinan a Petition for the issuance of letters of administration for her
appointment as administratrix of the intestate estate of Orlando. The case was
docketed as Special Proceedings (Spec. Proc.) No. 228.
On 3 March 2005, while Spec. Proc. No. 228 was pending, respondent Louella A.
Catalan-Lee, one of the children of Orlando from his first marriage, filed a similar petition
with the RTC docketed as Spec. Proc. No. 232.
The two cases were subsequently consolidated.
Petitioner prayed for the dismissal of Spec. Proc. No. 232 on the ground of litis
pendentia, considering that Spec. Proc. No. 228 covering the same estate was already
pending. HcaDIA
On the other hand, Louella alleged that petitioner was not considered an interested
person qualified to file a petition for the issuance of letters of administration of the estate
of Orlando. In support of her contention, respondent alleged that a criminal case for
bigamy was filed against Merope before Branch 54 of the RTC of Alaminos, Pangasinan,
and docketed as Crim. Case No. 2699-A.
Apparently, Felicitas Amor filed a Complaint for bigamy, alleging that Merope
contracted a second marriage to Orlando despite having been married to one Eusebio
Bristol on 12 December 1959.
On 6 August 1998, the RTC had ACQUITTED petitioner of bigamy. 3 The trial court ruled
that since the deceased was a divorced American citizen, and since that divorce was
not recognized under Philippine jurisdiction, the MARRIAGE between him and petitioner
was NOT valid.
Furthermore, it took note of the action for declaration of nullity then pending action with
the trial court in Dagupan City filed by Felicitas Amor against the deceased and

299

petitioner. It considered the pending action to be a prejudicial question in determining

the guilt of Merope for the crime of bigamy.
Finally, the trial court found that, in the first place, Merope had never been married to
Eusebio Bristol.
On 26 June 2006, Branch 70 of the RTC of Burgos, Pangasinan dismissed the Petition for
the issuance of letters of administration filed by Merope and granted that of Louella.
Contrary to its findings in Crim. Case No. 2699-A, the RTC held that the marriage
between Merope and Eusebio Bristol was valid and subsisting when she married
Orlando. Without expounding, it reasoned further that her acquittal in the previous
bigamy case was fatal to her cause. Thus, the trial court held that Merope was not an
interested party who may file a petition for the issuance of letters of administration. 4
After the subsequent denial of her Motion for Reconsideration, petitioner elevated the
matter to the Court of Appeals (CA) via her Petition for Certiorari,alleging grave abuse
of discretion on the part of the RTC in dismissing her Petition for the issuance of letters of
administration. HCEcaT
Petitioner reiterated before the CA that the Petition filed by respondent should have
been dismissed on the ground of litis pendentia. She also insisted that, while a petition
for letters of administration may have been filed by an "uninterested person," the defect
was cured by the appearance of a real party-in-interest. Thus, she insisted that, to
determine who has a better right to administer the decedent's properties, the RTC
should have first required the parties to present their evidence before it ruled on the
matter.
On 18 October 2007, the CA promulgated the assailed Decision. First, it held that
petitioner undertook the wrong remedy. She should have instead filed a petition for
review rather than a petition for certiorari. Nevertheless, since the Petition
for Certiorari was filed within the fifteen-day reglementary period for filing a petition for
review under Sec. 4 of Rule 43, the CA allowed the Petition and continued to decide on
the merits of the case. Thus, it ruled in this wise:
As to the issue of litis pendentia, we find it not applicable in the
case. For litis pendentia to be a ground for the dismissal of an
action, there must be: (a) identity of the parties or at least such as
to represent the same interest in both actions; (b) identity of rights
asserted and relief prayed for, the relief being founded on the
same acts, and (c) the identity in the two cases should be such
that the judgment which may be rendered in one would,
regardless of which party is successful, amount to res judicata in
the other. A petition for letters of administration is a special
proceeding. A special proceeding is an application or proceeding
to establish the status or right of a party, or a particular fact. And, in
contrast to an ordinary civil action, a special proceeding involves
no defendant or respondent. The only party in this kind of
proceeding is the petitioner of the applicant. Considering its

nature, a subsequent petition for letters of administration can

hardly be barred by a similar pending petition involving the estate
of the same decedent unless both petitions are filed by the same
person. In the case at bar, the petitioner was not a party to the
petition filed by the private respondent, in the same manner that
the latter was not made a party to the petition filed by the former.
The first element of litis pendentiais wanting. The contention of the
petitioner must perforce fail.
Moreover, to yield to the contention of the petitioner would render
nugatory the provision of the Rules requiring a petitioner for letters
of administration to be an "interested party," inasmuch as any
person, for that matter, regardless of whether he has valid interest
in the estate sought to be administered, could be appointed as
administrator for as long as he files his petition ahead of any other
person, in derogation of the rights of those specifically mentioned
in the order of preference in the appointment of administrator
under Rule 78, Section 6 of the Revised Rules of Court, which
provides:
xxx xxx xxx
The petitioner, armed with a marriage certificate, filed her petition
for letters of administration. As a spouse, the petitioner would have
been preferred to administer the estate of Orlando B. Catalan.
However, a marriage certificate, like any other public document, is
only prima facieevidence of the facts stated therein. The fact that
the petitioner had been charged with bigamy and was acquitted
has not been disputed by the petitioner. Bigamy is an illegal
marriage committed by contracting a second or subsequent
marriage before the first marriage has been dissolved or before the
absent spouse has been declared presumptively dead by a
judgment rendered in a proper proceedings. The deduction of the
trial court that the acquittal of the petitioner in the said case
negates the validity of her subsequent marriage with Orlando B.
Catalan has not been disproved by her. There was not even an
attempt from the petitioner to deny the findings of the trial
court. There is therefore no basis for us to make a contrary finding.
Thus, not being an interested party and a stranger to the estate of
Orlando B. Catalan, the dismissal of her petition for letters of
administration by the trial court is in place.
xxx xxx xxx
WHEREFORE, premises considered, the petition is DISMISSED for lack
of merit. No pronouncement as to costs. AacDHE
SO ORDERED. 5 (Emphasis supplied)

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Petitioner moved for a reconsideration of this Decision. 6 She alleged that the reasoning
of the CA was illogical in stating, on the one hand, that she was acquitted of bigamy,
while, on the other hand, still holding that her marriage with Orlando was invalid. She
insists that with her acquittal of the crime of bigamy, the marriage enjoys the
presumption of validity.

In Pilapil v. Ibay-Somera, we recognized the divorce obtained by

the respondent in his country, the Federal Republic of
Germany. There, we stated that divorce and its legal effects may
be recognized in the Philippines insofar as respondent is
concerned in view of the nationality principle in our civil law on the
status of persons.

On 20 June 2008, the CA denied her motion.

Hence, this Petition.
At the outset, it seems that the RTC in the special proceedings failed to appreciate the
finding of the RTC in Crim. Case No. 2699-A that petitioner was never married to Eusebio
Bristol. Thus, the trial court concluded that, because petitioner was acquitted of bigamy,
it follows that the first marriage with Bristol still existed and was valid. By failing to take
note of the findings of fact on the nonexistence of the marriage between petitioner and
Bristol, both the RTC and CA held that petitioner was not an interested party in the
estate of Orlando.
Second, it is imperative to note that at the time the bigamy case in Crim. Case No.
2699-A was dismissed, we had already ruled that under the principles of comity, our
jurisdiction recognizes a valid divorce obtained by a spouse of foreign nationality. This
doctrine was established as early as 1985 in Van Dorn v. Romillo, Jr. 7 wherein we said:
It is true that owing to the nationality principle embodied in Article
15 of the Civil Code, only Philippine nationals are covered by the
policy against absolute divorces[,] the same being considered
contrary to our concept of public policy and morality. However,
aliens may obtain divorces abroad, which may be recognized in
the Philippines, provided they are valid according to their national
law. In this case, the divorce in Nevada released private
respondent from the marriage from the standards of American law,
under which divorce dissolves the marriage. . . .
We reiterated this principle in Llorente v. Court of Appeals, 8 to wit:
In Van Dorn v. Romillo, Jr. we held that owing to the nationality
principle embodied in Article 15 of the Civil Code, only Philippine
nationals are covered by the policy against absolute divorces, the
same being considered contrary to our concept of public policy
and morality. In the same case, the Court ruled that aliens may
obtain divorces abroad, provided they are valid according to their
national law. CaTcSA
Citing this landmark case, the Court held in Quita v. Court of
Appeals, that once proven that respondent was no longer a Filipino
citizen when he obtained the divorce from petitioner, the ruling
in Van Dorn would become applicable and petitioner could "very
well lose her right to inherit" from him.

For failing to apply these doctrines, the decision of the Court of

Appeals must be reversed. We hold that the divorce obtained by
Lorenzo H. Llorente from his first wife Paula was valid and
recognized in this jurisdiction as a matter of comity. . . .
Nonetheless, the fact of divorce must still first be proven as we have enunciated
in Garcia v. Recio, 9 to wit:
Respondent is getting ahead of himself. Before a foreign judgment
is given presumptive evidentiary value, the document must first be
presented and admitted in evidence. A divorce obtained abroad
is proven by the divorce decree itself. Indeed the best evidence of
a judgment is the judgment itself. The decree purports to be a
written act or record of an act of an official body or tribunal of a
foreign country.
Under Sections 24 and 25 of Rule 132, on the other hand, a writing
or document may be proven as a public or official record of a
foreign country by either (1) an official publication or (2) a copy
thereof attested by the officer having legal custody of the
document. If the record is not kept in the Philippines, such copy
must be (a) accompanied by a certificate issued by the proper
diplomatic or consular officer in the Philippine foreign service
stationed in the foreign country in which the record is kept and (b)
authenticated by the seal of his office.
The divorce decree between respondent and Editha Samson
appears to be an authentic one issued by an Australian family
court. However, appearance is not sufficient; compliance with the
aforementioned rules on evidence must be demonstrated. TCaADS
Fortunately for respondent's cause, when the divorce decree of
May 18, 1989 was submitted in evidence, counsel for petitioner
objected, not to its admissibility, but only to the fact that it had not
been registered in the Local Civil Registry of Cabanatuan City. The
trial court ruled that it was admissible, subject to petitioner's
qualification. Hence, it was admitted in evidence and accorded
weight by the judge. Indeed, petitioner's failure to object properly
rendered the divorce decree admissible as a written act of the
Family Court of Sydney, Australia.

301

Compliance with the quoted articles (11, 13 and 52) of the Family
Code is not necessary; respondent was no longer bound by
Philippine personal laws after he acquired Australian citizenship in
1992. Naturalization is the legal act of adopting an alien and
clothing him with the political and civil rights belonging to a citizen.
Naturalized citizens, freed from the protective cloak of their former
states, don the attires of their adoptive countries. By becoming an
Australian, respondent severed his allegiance to the Philippines
and the vinculum juris that had tied him to Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian divorce
law falls upon petitioner, because she is the party challenging the
validity of a foreign judgment. He contends that petitioner was
satisfied with the original of the divorce decree and was cognizant
of the marital laws of Australia, because she had lived and worked
in that country for quite a long time. Besides, the Australian divorce
law is allegedly known by Philippine courts; thus, judges may take
judicial notice of foreign laws in the exercise of sound discretion.
We are not persuaded. The burden of proof lies with the "party who
alleges the existence of a fact or thing necessary in the
prosecution or defense of an action." In civil cases, plaintiffs have
the burden of proving the material allegations of the complaint
when those are denied by the answer; and defendants have the
burden of proving the material allegations in their answer when
they introduce new matters. Since the divorce was a defense
raised by respondent, the burden of proving the pertinent
Australian law validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take
judicial notice of foreign laws. Like any other facts, they must be
alleged and proved. Australian marital laws are not among those
matters that judges are supposed to know by reason of their
judicial function. The power of judicial notice must be exercised
with caution, and every reasonable doubt upon the subject should
be resolved in the negative. (Emphasis supplied) aTIEcA
It appears that the trial court no longer required petitioner to prove the validity of
Orlando's divorce under the laws of the United States and the marriage between
Merope and Orlando. Thus, there is a need to remand the proceedings to the trial court
for further reception of evidence to establish the fact of divorce.
Should petitioner prove the validity of the divorce and the subsequent marriage, she has
the preferential right to be issued the letters of administration over the estate. Otherwise,
letters of administration may be issued to respondent, who is undisputedly the daughter

or next of kin of the deceased, in accordance with Sec. 6 of Rule 78 of the Revised Rules
of Court.
This is consistent with our ruling in San Luis v. San Luis, 10 in which we said:
Applying the above doctrine in the instant case, the divorce
decree allegedly obtained by Merry Lee which absolutely allowed
Felicisimo to remarry, would have vested Felicidad with the legal
personality to file the present petition as Felicisimo's surviving
spouse. However, the records show that there is insufficient
evidence to prove the validity of the divorce obtained by Merry
Lee as well as the marriage of respondent and Felicisimo under the
laws of the U.S.A. In Garcia v. Recio, the Court laid down the
specific guidelines for pleading and proving foreign law and
divorce judgments. It held that presentation solely of the divorce
decree is insufficient and that proof of its authenticity and due
execution must be presented. Under Sections 24 and 25 of Rule
132, a writing or document may be proven as a public or official
record of a foreign country by either (1) an official publication or
(2) a copy thereof attested by the officer having LEGAL CUSTODY of
the document. If the record is not kept in the Philippines, such copy
must be (a) accompanied by a certificate issued by the proper
diplomatic or consular officer in the Philippine foreign service
stationed in the foreign country in which the record is kept and (b)
authenticated by the seal of his office.
With regard to respondent's marriage to Felicisimo allegedly
solemnized in California, U.S.A., she submitted photocopies of the
Marriage Certificate and the annotated text of the Family Law Act
of California which purportedly show that their marriage was done
in accordance with the said law. As stated in Garcia, however, the
Court cannot take judicial notice of foreign laws as they must be
alleged and proved.
Therefore, this case should be remanded to the trial court for further
reception of evidence on the divorce decree obtained by Merry
Lee and the marriage of respondent and Felicisimo. (Emphasis
supplied)
Thus, it is imperative for the trial court to first determine the validity of the divorce to
ascertain the rightful party to be issued the letters of administration over the estate of
Orlando B. Catalan.
WHEREFORE, premises considered, the Petition is hereby PARTIALLY GRANTED. The
Decision dated 18 October 2007 and the Resolution dated 20 June 2008 of the Court of
Appeals are hereby REVERSED and SET ASIDE. Let this case be REMANDED to Branch 70
of the Regional Trial Court of Burgos, Pangasinan for further proceedings in accordance
with this Decision. DcSEHT

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SO ORDERED.
Carpio, Brion, Perez and Reyes, JJ., concur.
THIRD DIVISION
[G.R. No. 133743. February 6, 2007.]
21. EDGAR SAN LUIS, petitioner, vs. FELICIDAD SAN LUIS, respondent.
[G.R. No. 134029. February 6, 2007]
RODOLFO SAN LUIS, petitioner, vs. FELICIDAD SAGALONGOS alias
FELICIDAD SAN LUIS, respondent.
DECISION
YNARES-SANTIAGO, J p:
Before us are consolidated petitions for review assailing the February 4, 1998
Decision 1 of the Court of Appeals in CA-G.R. CV No. 52647, which reversed and set
aside the September 12, 1995 2 and January 31, 1996 3 Resolutions of the Regional Trial
Court of Makati City, Branch 134 in SP. Proc. No. M-3708; and its May 15, 1998
Resolution 4 denying petitioners' motion for reconsideration.
The instant case involves the settlement of the estate of Felicisimo T. San Luis (Felicisimo),
who was the former governor of the Province of Laguna. During his lifetime, Felicisimo
contracted three marriages. His first marriage was with Virginia Sulit on March 17, 1942
out of which were born six children, namely: Rodolfo, Mila, Edgar, Linda, Emilita and
Manuel. On August 11, 1963, Virginia predeceased Felicisimo.
Five years later, on May 1, 1968, Felicisimo married Merry Lee Corwin, with whom he had
a son, Tobias. However, on October 15, 1971, Merry Lee, an American citizen, filed a
Complaint for Divorce 5 before the Family Court of the First Circuit, State of Hawaii,
United States of America (U.S.A.), which issued a Decree Granting ABSOLUTE Divorce
and Awarding Child Custody on December 14, 1973. 6
On June 20, 1974, Felicisimo married respondent Felicidad San Luis, then surnamed
Sagalongos, before Rev. Fr. William Meyer, Minister of the United Presbyterian at Wilshire
Boulevard, Los Angeles, California, U.S.A. 7 He had no children with respondent but lived
with her for 18 years from the time of their marriage up to his death on December 18,
1992.
Thereafter, Felicidad sought the dissolution of their conjugal partnership assets and the
settlement of Felicisimo's estate. On December 17, 1993, she filed a petition for letters of
administration 8 before the Regional Trial Court of Makati City, docketed as SP. Proc.
No. M-3708 which was raffled to Branch 146 thereof.

Respondent alleged that she is the widow of Felicisimo; that, at the time of his death,
the decedent was residing at 100 San Juanico Street, New Alabang Village, Alabang,
Metro Manila; that the decedent's surviving heirs are respondent as legal spouse, his six
children by his first marriage, and son by his second marriage; that the decedent left
real properties, both conjugal and exclusive, valued at P30,304,178.00 more or less; that
the decedent does not have any unpaid debts. Respondent prayed that the conjugal
partnership assets be liquidated and that letters of administration be issued to
her. TAaIDH
On February 4, 1994, petitioner Rodolfo San Luis, one of the children of Felicisimo by his
first marriage, filed a motion to dismiss 9 on the grounds of improper venue and failure to
state a cause of action. Rodolfo claimed that the petition for letters of administration
should have been filed in the Province of Laguna because this was Felicisimo's place of
residence prior to his death. He further claimed that Felicidad has no legal personality to
file the petition because she was only a mistress of Felicisimo since the latter, at the time
of his death, was still legally married to Merry Lee.
On February 15, 1994, Linda invoked the same grounds and joined her brother Rodolfo
in seeking the dismissal 10 of the petition. On February 28, 1994, the trial court issued an
Order 11 denying the two motions to dismiss.
Unaware of the denial of the motions to dismiss, Felicidad filed on March 5, 1994 her
opposition 12 thereto. She submitted documentary evidence showing that while
Felicisimo exercised the powers of his public office in Laguna, he regularly went home to
their house in New Alabang Village, Alabang, Metro Manila which they bought
sometime in 1982. Further, she presented the decree of absolute divorce issued by the
Family Court of the First Circuit, State of Hawaii to prove that the marriage of Felicisimo
to Merry Lee had already been dissolved. Thus, she claimed that Felicisimo had the
legal capacity to marry her by virtue of paragraph 2, 13 Article 26 of the Family Code
and the doctrine laid down in Van Dorn v. Romillo, Jr. 14
Thereafter, Linda, Rodolfo and herein petitioner Edgar San Luis, separately filed motions
for reconsideration from the Order denying their motions to dismiss. 15 They asserted
that paragraph 2, Article 26 of the Family Code cannot be given retroactive effect to
validate respondent's bigamous marriage with Felicisimo because this would impair
vested rights in derogation of Article 256 16 of the Family Code.
On April 21, 1994, Mila, another daughter of Felicisimo from his first marriage, filed a
motion to disqualify Acting Presiding Judge Anthony E. Santos from hearing the case.
On October 24, 1994, the trial court issued an Order 17 denying the motions for
reconsideration. It ruled that Felicidad, as widow of the decedent, possessed the legal
standing to file the petition and that venue was properly laid. Meanwhile, the motion for
disqualification was deemed moot and academic 18 because then Acting Presiding
Judge Santos was substituted by Judge Salvador S. Tensuan pending the resolution of
said motion.

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Mila filed a motion for inhibition 19 against Judge Tensuan on November 16, 1994. On
even date, Edgar also filed a motion for reconsideration 20 from the Order denying their
motion for reconsideration arguing that it does not state the facts and law on which it
was based.
On November 25, 1994, Judge Tensuan issued an Order 21 granting the motion for
inhibition. The case was re-raffled to Branch 134 presided by Judge Paul T. Arcangel.
On April 24, 1995, 22 the trial court required the parties to submit their respective position
papers on the twin issues of venue and legal capacity of respondent to file the petition.
On May 5, 1995, Edgar manifested 23 that he is adopting the arguments and evidence
set forth in his previous motion for reconsideration as his position paper. Respondent and
Rodolfo filed their position papers on June 14, 24 and June 20, 25 1995, respectively.
On September 12, 1995, the trial court dismissed the petition for letters of administration.
It held that, at the time of his death, Felicisimo was the duly elected governor and a
resident of the Province of Laguna. Hence, the petition should have been filed in Sta.
Cruz, Laguna and not in Makati City. It also ruled that respondent was without legal
capacity to file the petition for letters of administration because her marriage with
Felicisimo was bigamous, thus, void ab initio. It found that the decree of absolute
divorce dissolving Felicisimo's marriage to Merry Lee was not valid in the Philippines and
did not bind Felicisimo who was a Filipino citizen. It also ruled that paragraph 2, Article
26 of the Family Code cannot be retroactively applied because it would impair the
vested rights of Felicisimo's legitimate children. CDTHSI
Respondent moved for reconsideration 26 and for the disqualification 27 of Judge
Arcangel but said motions were denied. 28
Respondent appealed to the Court of Appeals which reversed and set aside the orders
of the trial court in its assailed Decision dated February 4, 1998, the dispositive portion of
which states:
WHEREFORE, the Orders dated September 12, 1995 and January
31, 1996 are hereby REVERSED and SET ASIDE; the Orders dated
February 28 and October 24, 1994 are REINSTATED; and the records
of the case is REMANDED to the trial court for further
proceedings. 29
The appellate court ruled that under Section 1, Rule 73 of the Rules of Court, the term
"place of residence" of the decedent, for purposes of fixing the venue of the settlement
of his estate, refers to the personal, actual or physical habitation, or actual residence or
place of abode of a person as distinguished from legal residence or domicile. It noted
that although Felicisimo discharged his functions as governor in Laguna, he actually
resided in Alabang, Muntinlupa. Thus, the petition for letters of administration was
properly filed in Makati City.

Romillo, Jr. 30 and Pilapil v. Ibay-Somera. 31 It found that the marriage between
Felicisimo and Merry Lee was validly dissolved by virtue of the decree of absolute
divorce issued by the Family Court of the First Circuit, State of Hawaii. As a result, under
paragraph 2, Article 26, Felicisimo was capacitated to contract a subsequent marriage
with respondent. Thus
With the well-known rule express mandate of paragraph 2,
Article 26, of the Family Code of the Philippines, the doctrines in
Van Dorn, Pilapil, and the reason and philosophy behind the
enactment of E.O. No. 227, there is no justiciable reason to
sustain the individual view sweeping statement of Judge
Arc[h]angel, that "Article 26, par. 2 of the Family Code,
contravenes the basic policy of our state against divorce in any
form whatsoever." Indeed, courts cannot deny what the law
grants. All that the courts should do is to give force and effect to
the express mandate of the law. The foreign divorce having
been obtained by the Foreigner on December 14, 1992, 32 the
Filipino divorcee, "shall . . . have capacity to remarry under
Philippine laws". For this reason, the marriage between the
deceased and petitioner should not be denominated as "a
bigamous marriage.
Therefore, under Article 130 of the Family Code, the petitioner as
the surviving spouse can institute the judicial proceeding for the
settlement of the estate of the deceased. . . . 33
Edgar, Linda, and Rodolfo filed separate motions for reconsideration 34 which were
denied by the Court of Appeals.
On July 2, 1998, Edgar appealed to this Court via the instant petition for review
on certiorari. 35 Rodolfo later filed a manifestation and motion to adopt the said petition
which was granted. 36
In the instant consolidated petitions, Edgar and Rodolfo insist that the venue of the
subject petition for letters of administration was improperly laid because at the time of
his death, Felicisimo was a resident of Sta. Cruz, Laguna. They contend that pursuant to
our rulings in Nuval v. Guray 37 andRomualdez v. RTC, Br. 7, Tacloban
City, 38 "residence" is synonymous with "domicile" which denotes a fixed permanent
residence to which when absent, one intends to return. They claim that a person can
only have one domicile at any given time. Since Felicisimo never changed his domicile,
the petition for letters of administration should have been filed in Sta. Cruz, Laguna.
Petitioners also contend that respondent's marriage to Felicisimo was void and
bigamous because it was performed during the subsistence of the latter's marriage to
Merry Lee. They argue that paragraph 2,

The Court of Appeals also held that Felicisimo had legal capacity to marry respondent
by virtue of paragraph 2, Article 26 of the Family Code and the rulings in Van Dorn v.

304

The issues for resolution: (1) whether venue was properly laid, and (2) whether
respondent has legal capacity to file the subject petition for letters of
administration. DScTaC
The petition lacks merit.
Under Section 1, 39 Rule 73 of the Rules of Court, the petition for letters of administration
of the estate of Felicisimo should be filed in the Regional Trial Court of the province "in
which he resides at the time of his death." In the case of Garcia Fule v. Court of
Appeals, 40 we laid down the doctrinal rule for determining the residence as
contradistinguished from domicile of the decedent for purposes of fixing the venue of
the settlement of his estate:
[T]he term "resides" connotes ex vi termini "actual residence" as
distinguished from "legal residence or domicile." This term "resides,"
like the terms "residing" and "residence," is elastic and should be
interpreted in the light of the object or purpose of the statute or
rule in which it is employed. In the application of venue statutes
and rules Section 1, Rule 73 of the Revised Rules of Court is of
such nature residence rather than domicile is the significant
factor. Even where the statute uses the word "domicile" still it is
construed as meaning residence and not domicile in the technical
sense. Some cases make a distinction between the terms
"residence" and "domicile" but as generally used in statutes fixing
venue, the terms are synonymous, and convey the same meaning
as the term "inhabitant." In other words, "resides" should be viewed
or understood in its popular sense, meaning, the personal, actual or
physical habitation of a person, actual residence or place of
abode. It signifies physical presence in a place and actual stay
thereat. In this popular sense, the term means merely residence,
that is, personal residence, not legal residence or domicile.
Residence simply requires bodily presence as an inhabitant in a
given place, while domicile requires bodily presence in that place
and also an intention to make it one's domicile. No particular
length of time of residence is required though; however, the
residence must be more than temporary. 41 (Emphasis
supplied) STIcEA
It is incorrect for petitioners to argue that "residence," for purposes of fixing the venue of
the settlement of the estate of Felicisimo, is synonymous with "domicile." The rulings
in Nuval and Romualdez are inapplicable to the instant case because they involve
election cases. Needless to say, there is a distinction between "residence" for purposes
of election laws and "residence" for purposes of fixing the venue of actions. In election
cases, "residence" and "domicile" are treated as synonymous terms, that is, the fixed
permanent residence to which when absent, one has the intention of
returning. 42However, for purposes of fixing venue under the Rules of Court, the
"residence" of a person is his personal, actual or physical habitation, or actual residence
or place of abode, which may not necessarily be his legal residence or domicile

provided he resides therein with continuity and consistency. 43Hence, it is possible that
a person may have his residence in one place and domicile in another.
In the instant case, while petitioners established that Felicisimo was domiciled in Sta.
Cruz, Laguna, respondent proved that he also maintained a residence in Alabang,
Muntinlupa from 1982 up to the time of his death. Respondent submitted in evidence
the Deed of Absolute Sale 44 dated January 5, 1983 showing that the deceased
purchased the aforesaid property. She also presented billing statements 45 from the
Philippine Heart Center and Chinese General Hospital for the period August to
December 1992 indicating the address of Felicisimo at "100 San Juanico, Ayala
Alabang, Muntinlupa." Respondent also presented proof of membership of the
deceased in the Ayala Alabang Village Association 46 and Ayala Country Club,
Inc., 47 letter-envelopes 48 from 1988 to 1990 sent by the deceased's children to him at
his Alabang address, and the deceased's calling cards 49 stating that his home/city
address is at "100 San Juanico, Ayala Alabang Village, Muntinlupa" while his
office/provincial address is in "Provincial Capitol, Sta. Cruz, Laguna."
From the foregoing, we find that Felicisimo was a resident of Alabang, Muntinlupa for
purposes of fixing the venue of the settlement of his estate. Consequently, the subject
petition for letters of administration was validly filed in the Regional Trial Court 50 which
has territorial jurisdiction over Alabang, Muntinlupa. The subject petition was filed on
December 17, 1993. At that time, Muntinlupa was still a municipality and the branches
of the Regional Trial Court of the National Capital Judicial Region which had territorial
jurisdiction over Muntinlupa were then seated in Makati City as per Supreme Court
Administrative Order No. 3. 51 Thus, the subject petition was validly filed before the
Regional Trial Court of Makati City.
Anent the issue of respondent Felicidad's legal personality to file the petition for letters of
administration, we must first resolve the issue of whether a Filipino who is divorced by his
alien spouse abroad may validly remarry under the Civil Code, considering that
Felicidad's marriage to Felicisimo was solemnized on June 20, 1974, or before the Family
Code took effect on August 3, 1988. In resolving this issue, we need not retroactively
apply the provisions of the Family Code, particularly Art. 26, par. (2) considering that
there is sufficient jurisprudential basis allowing us to rule in the affirmative.
The case of Van Dorn v. Romillo, Jr. 52 involved a marriage between a
foreigner and his Filipino wife, which marriage was subsequently dissolved through
a divorce obtained abroad by the latter. Claiming that the divorce was not valid
under Philippine law, the alien spouse alleged that his interest in the properties from
their conjugal partnership should be protected. The Court, however, recognized
the validity of the divorce and held that the alien spouse had no interest in the
properties acquired by the Filipino wife after the divorce. Thus:
In this case, the divorce in Nevada released private respondent
from the marriage from the standards of American law, under
which divorce dissolves the marriage. As stated by the Federal
Supreme Court of the United States in Atherton vs. Atherton, 45 L.
Ed. 794, 799:

305

"The purpose and effect of a decree of divorce from the

bond of matrimony by a competent jurisdiction are to
change the existing status or domestic relation of
husband and wife, and to free them both from the bond.
The marriage tie, when thus severed as to one party,
ceases to bind either. A husband without a wife, or a wife
without a husband, is unknown to the law. When the law
provides, in the nature of a penalty, that the guilty party
shall not marry again, that party, as well as the other, is still
absolutely freed from the bond of the former marriage."
Thus, pursuant to his national law, private respondent is no longer
the husband of petitioner. He would have no standing to sue in the
case below as petitioner's husband entitled to exercise control over
conjugal assets. As he is bound by the Decision of his own country's
Court, which validly exercised jurisdiction over him, and whose
decision he does not repudiate, he is estopped by his own
representation before said Court from asserting his right over the
alleged conjugal property. 53
As to the effect of the divorce on the Filipino wife, the Court ruled that she should no
longer be considered married to the alien spouse. Further, she should not be required to
perform her marital duties and obligations. It held:
To maintain, as private respondent does, that, under our laws,
petitioner has to be considered still married to private
respondent and still subject to a wife's obligations under Article
109, et. seq. of the Civil Code cannot be just. Petitioner should not
be obliged to live together with, observe respect and fidelity, and
render support to private respondent. The latter should not
continue to be one of her heirs with possible rights to conjugal
property. She should not be discriminated against in her own
country if the ends of justice are to be served. 54 (Emphasis
added) AcaEDC
This principle was thereafter applied in Pilapil v. Ibay-Somera 55 where the Court
recognized the validity of a divorce obtained abroad. In the said case, it was held that
the alien spouse is not a proper party in filing the adultery suit against his Filipino wife.
The Court stated that "the severance of the marital bond had the effect of dissociating
the former spouses from each other, hence the actuations of one would not affect or
cast obloquy on the other." 56
Likewise, in Quita v. Court of Appeals, 57 the Court stated that where a Filipino is
divorced by his naturalized foreign spouse, the ruling in Van Dornapplies. 58 Although
decided on December 22, 1998, the divorce in the said case was obtained in 1954
when the Civil Code provisions were still in effect.

The significance of the Van Dorn case to the development of limited recognition of
divorce in the Philippines cannot be denied. The ruling has long been interpreted as
severing marital ties between parties in a mixed marriage and capacitating the Filipino
spouse to remarry as a necessary consequence of upholding the validity of a divorce
obtained abroad by the alien spouse. In his treatise, Dr. Arturo M. Tolentino cited Van
Dorn stating that "if the foreigner obtains a valid foreign divorce, the Filipino spouse shall
have capacity to remarry under Philippine law." 59 In Garcia v. Recio, 60 the Court
likewise cited the aforementioned case in relation to Article 26. 61
In the recent case of Republic v. Orbecido III, 62 the historical background and
legislative intent behind paragraph 2, Article 26 of the Family Code were discussed, to
wit:
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed into law
Executive Order No. 209, otherwise known as the "Family Code,"
which took effect on August 3, 1988. Article 26 thereof states:
All marriages solemnized outside the Philippines in accordance
with the laws in force in the country where they were solemnized,
and valid there as such, shall also be valid in this country, except
those prohibited under Articles 35, 37, and 38.
On July 17, 1987, shortly after the signing of the original Family
Code, Executive Order No. 227 was likewise signed into law,
amending Articles 26, 36, and 39 of the Family Code. A second
paragraph was added to Article 26. As so amended, it now
provides:
ART. 26.All marriages solemnized outside the Philippines in
accordance with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35(1), (4), (5) and
(6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry, the
Filipino spouse shall have capacity to remarry under Philippine law.
(Emphasis supplied)
xxx xxx xxx
Legislative Intent

306

Records of the proceedings of the Family Code deliberations

showed that the intent of Paragraph 2 of Article 26, according to
Judge Alicia Sempio-Diy, a member of the Civil Code Revision
Committee, is to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after obtaining a
divorce, is no longer married to the Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985
case of Van Dorn v. Romillo, Jr. The Van Dorn case involved a
marriage between a Filipino citizen and a foreigner. The Court held
therein that a divorce decree validly obtained by the alien spouse
is valid in the Philippines, and consequently, the Filipino spouse is
capacitated to remarry under Philippine law. 63 (Emphasis added)
As such, the Van Dorn case is sufficient basis in resolving a situation where a divorce is
validly obtained abroad by the alien spouse. With the enactment of the Family Code
and paragraph 2, Article 26 thereof, our lawmakers codified the law already established
through judicial precedent. HAaECD
Indeed, when the object of a marriage is defeated by rendering its continuance
intolerable to one of the parties and productive of no possible good to the community,
relief in some way should be obtainable. 64 Marriage, being a mutual and shared
commitment between two parties, cannot possibly be productive of any good to the
society where one is considered released from the marital bond while the other remains
bound to it. Such is the state of affairs where the alien spouse obtains a valid divorce
abroad against the Filipino spouse, as in this case.
Petitioners cite Articles 15 65 and 17 66 of the Civil Code in stating that the divorce is
void under Philippine law insofar as Filipinos are concerned. However, in light of this
Court's rulings in the cases discussed above, the Filipino spouse should not be
discriminated against in his own country if the ends of justice are to be
served. 67 In Alonzo v. Intermediate Appellate Court, 68 the Court stated:
But as has also been aptly observed, we test a law by its results;
and likewise, we may add, by its purposes. It is a cardinal rule that,
in seeking the meaning of the law, the first concern of the judge
should be to discover in its provisions the intent of the lawmaker.
Unquestionably, the law should never be interpreted in such a way
as to cause injustice as this is never within the legislative intent. An
indispensable part of that intent, in fact, for we presume the good
motives of the legislature, is to render justice.
Thus, we interpret and apply the law not independently of but in
consonance with justice. Law and justice are inseparable, and we
must keep them so. To be sure, there are some laws that, while
generally valid, may seem arbitrary when applied in a particular
case because of its peculiar circumstances. In such a situation, we
are not bound, because only of our nature and functions, to apply

them just the same, in slavish obedience to their language. What

we do instead is find a balance between the word and the will,
that justice may be done even as the law is obeyed.
As judges, we are not automatons. We do not and must not
unfeelingly apply the law as it is worded, yielding like robots to the
literal command without regard to its cause and consequence.
"Courts are apt to err by sticking too closely to the words of a law,"
so we are warned, by Justice Holmes again, "where these words
import a policy that goes beyond them."
xxx xxx xxx
More than twenty centuries ago, Justinian defined justice "as the
constant and perpetual wish to render every one his due." That
wish continues to motivate this Court when it assesses the facts and
the law in every case brought to it for decision. Justice is always an
essential ingredient of its decisions. Thus when the facts warrants,
we interpret the law in a way that will render justice, presuming
that it was the intention of the lawmaker, to begin with, that the
law be dispensed with justice. 69
Applying the above doctrine in the instant case, the divorce decree allegedly obtained
by Merry Lee which absolutely allowed Felicisimo to remarry, would have vested
Felicidad with the legal personality to file the present petition as Felicisimo's surviving
spouse. However, the records show that there is insufficient evidence to prove the
validity of the divorce obtained by Merry Lee as well as the marriage of respondent and
Felicisimo under the laws of the U.S.A. In Garcia v. Recio, 70 the Court laid down the
specific guidelines for pleading and proving foreign law and divorce judgments. It held
that presentation solely of the divorce decree is insufficient and that proof of its
authenticity and due execution must be presented. Under Sections 24 and 25 of Rule
132, a writing or document may be proven as a public or official record of a foreign
country by either (1) an official publication or (2) a copy thereof attested by the officer
having legal custody of the document. If the record is not kept in the Philippines, such
copy must be (a) accompanied by a certificate issued by the proper diplomatic or
consular officer in the Philippine foreign service stationed in the foreign country in which
the record is kept and (b) authenticated by the seal of his office. 71
With regard to respondent's marriage to Felicisimo allegedly solemnized in California,
U.S.A., she submitted photocopies of the Marriage Certificate and the ANNOTATED
text 72 of the Family Law Act of California which purportedly show that their marriage
was done in accordance with the said law. As stated in Garcia, however, the Court
cannot take judicial notice of foreign laws as they must be alleged and proved. 73
Therefore, this case should be remanded to the trial court for further reception of
evidence on the divorce decree obtained by Merry Lee and the marriage of respondent
and Felicisimo.

307

Even assuming that Felicisimo was not capacitated to marry respondent in 1974,
nevertheless, we find that the latter has the legal personality to file the subject petition
for letters of administration, as she may be considered the co-owner of Felicisimo as
regards the properties that were acquired through their joint efforts during their
cohabitation. TIEHDC
Section 6, 74 Rule 78 of the Rules of Court states that letters of administration may be
granted to the surviving spouse of the decedent. However, Section 2, Rule 79 thereof
also provides in part:
SEC. 2.Contents of petition for letters of administration. A petition
for letters of administration must be filed by an interested person
and must show, as far as known to the petitioner: . . . .
An "interested person" has been defined as one who would be BENEFITED by the estate,
such as an heir, or one who has a claim against the estate, such as a creditor. The
interest must be material and direct, and not merely indirect or contingent. 75
In the instant case, respondent would qualify as an interested person who has a direct
interest in the estate of Felicisimo by virtue of their cohabitation, the existence of which
was not denied by petitioners. If she proves the validity of the divorce and Felicisimo's
capacity to remarry, but fails to prove that her marriage with him was validly performed
under the laws of the U.S.A., then she may be considered as a co-owner under Article
144 76 of the Civil Code. This provision governs the property relations between parties
who live together as husband and wife without the benefit of marriage, or their
marriage is void from the beginning. It provides that the property acquired by either or
both of them through their work or industry or their wages and salaries shall be governed
by the rules on co-ownership. In a co-ownership, it is not necessary that the property be
acquired through their joint labor, efforts and industry. Any property acquired during the
union is prima facie presumed to have been obtained through their joint efforts. Hence,
the portions belonging to the co-owners shall be presumed equal, unless the contrary is
proven. 77
Meanwhile, if respondent fails to prove the validity of both the divorce and the
marriage, the applicable provision would be Article 148 of the Family Code which has
filled the hiatus in Article 144 of the Civil Code by expressly regulating the property
relations of couples living together as husband and wife but are incapacitated to
marry. 78 In Saguid v. Court of Appeals, 79 we held that even if the cohabitation or the
acquisition of property occurred before the Family Code took effect, Article 148
governs. 80 The Court described the property regime under this provision as follows:
The regime of limited co-ownership of property governing the
union of parties who are not legally capacitated to marry each
other, but who nonetheless live together as husband and wife,
applies to properties acquired during said cohabitation in
proportion to their respective contributions. Co-ownership will only
be up to the extent of the proven actual contribution of money,
property or industry. Absent proof of the extent thereof, their

contributions and corresponding shares shall be presumed to be

equal.
xxx xxx xxx
In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which
involved the issue of co-ownership of properties acquired by the
parties to a bigamous marriage and an adulterous relationship,
respectively, we ruled that proof of actual contribution in the
acquisition of the property is essential. . . .
As in other civil cases, the burden of proof rests upon the party
who, as determined by the pleadings or the nature of the case,
asserts an affirmative issue. Contentions must be proved by
competent evidence and reliance must be had on the strength of
the party's own evidence and not upon the weakness of the
opponent's defense. . . . 81
In view of the foregoing, we find that respondent's legal capacity to file the subject
petition for letters of administration may arise from her status as the surviving wife of
Felicisimo or as his co-owner under Article 144 of the Civil Code or Article 148 of the
Family Code.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals reinstating and
affirming the February 28, 1994 Order of the Regional Trial Court which denied
petitioners' motion to dismiss and its October 24, 1994 Order which dismissed petitioners'
motion for reconsideration is AFFIRMED. Let this case be REMANDED to the trial court for
further proceedings.
SO ORDERED.
Austria-Martinez, Callejo, Sr. and Chico-Nazario, JJ., concur.
SECOND DIVISION
[G.R. No. 196049. June 26, 2013.]
22. MINORU FUJIKI, petitioner, vs. MARIA PAZ GALELA MARINAY,
SHINICHI MAEKARA, LOCAL CIVIL REGISTRAR OF QUEZON CITY, and
THE ADMINISTRATOR AND CIVIL REGISTRAR GENERAL OF THE
NATIONAL STATISTICS OFFICE, respondents.
DECISION
CARPIO, J p:
The Case

308

This is a direct recourse to this Court from the Regional Trial Court (RTC), Branch 107,
Quezon City, through a petition for review on certiorari under Rule 45 of the Rules of
Court on a pure question of law. The petition assails the Order 1 dated 31 January 2011
of the RTC in Civil Case No. Q-11-68582 and its Resolution dated 2 March 2011 denying
petitioner's Motion for Reconsideration. The RTC dismissed the petition for "Judicial
Recognition of Foreign Judgment (or Decree of Absolute Nullity of Marriage)" based on
improper venue and the lack of personality of petitioner, Minoru Fujiki, to file the petition.
The Facts
Petitioner Minoru Fujiki (Fujiki) is a Japanese national who married respondent Maria Paz
Galela Marinay (Marinay) in the Philippines 2 on 23 January 2004. The marriage did not
sit well with petitioner's parents. Thus, Fujiki could not bring his wife to Japan where he
resides. Eventually, they lost contact with each other.
In 2008, Marinay met another Japanese, Shinichi Maekara (Maekara). Without the first
marriage being dissolved, Marinay and Maekara were married on 15 May 2008 in
Quezon City, Philippines. Maekara brought Marinay to Japan. However, Marinay
allegedly suffered physical abuse from Maekara. She left Maekara and started to
contact Fujiki. 3
Fujiki and Marinay met in Japan and they were able to reestablish their relationship. In
2010, Fujiki helped Marinay obtain a judgment from a family court in Japan which
declared the marriage between Marinay and Maekara void on the ground of
bigamy. 4 On 14 January 2011, Fujiki filed a petition in the RTC entitled: "Judicial
Recognition of Foreign Judgment (or Decree of Absolute Nullity of Marriage)." Fujiki
prayed that (1) the Japanese Family Court judgment be recognized; (2) that the
bigamous marriage between Marinay and Maekara be declared void ab initio under
Articles 35 (4) and 41 of the Family Code of the Philippines; 5 and (3) for the RTC to
direct the Local Civil Registrar of Quezon City to annotate the Japanese Family Court
judgment on the Certificate of Marriage between Marinay and Maekara and to
endorse such annotation to the Office of the Administrator and Civil Registrar General in
the National Statistics Office (NSO). 6
The Ruling of the Regional Trial Court
A few days after the filing of the petition, the RTC immediately issued an Order
dismissing the petition and withdrawing the case from its active civil docket. 7 The RTC
cited the following provisions of the Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC):
Sec. 2.Petition for declaration of absolute nullity of void
marriages.
(a)Who may file. A petition for declaration of absolute nullity
of void marriage may be filed solely by the husband or the wife.

Sec. 4.Venue. The petition shall be filed in the Family Court of

the province or city where the petitioner or the respondent has
been residing for at least six months prior to the date of filing, or
in the case of a non-resident respondent, where he may be
found in the Philippines, at the election of the petitioner. . . .
The RTC ruled, without further explanation, that the petition was in "gross violation"
of the above provisions. The trial court based its dismissal on Section 5 (4) of A.M.
No. 02-11-10-SC which provides that "[f]ailure to comply with any of the preceding
requirements
may be a
ground
for immediate
dismissal of
the
petition." 8 Apparently, the RTC took the view that only "the husband or the wife," in
this case either Maekara or Marinay, can file the petition to declare their marriage
void, and not Fujiki.
Fujiki moved that the Order be reconsidered. He argued that A.M. No. 02-11-10-SC
contemplated ordinary civil actions for declaration of nullity and annulment of
marriage. Thus, A.M. No. 02-11-10-SC does not apply. A petition for recognition of
foreign judgment is a special proceeding, which "seeks to establish a status, a right or a
particular fact," 9 and not a civil action which is "for the enforcement or protection of a
right, or the prevention or redress of a wrong." 10 In other words, the petition in the RTC
sought to establish (1) the status and concomitant rights of Fujiki and Marinay as
husband and wife and (2) the fact of the rendition of the Japanese Family Court
judgment declaring the marriage between Marinay and Maekara as void on the
ground of bigamy. The petitioner contended that the Japanese judgment was
consistent with Article 35 (4) of the Family Code of the Philippines 11 on bigamy and was
therefore entitled to recognition by Philippine courts. 12
In any case, it was also Fujiki's view that A.M. No. 02-11-10-SC applied only to void
marriages under Article 36 of the Family Code on the ground of psychological
incapacity. 13 Thus, Section 2 (a) of A.M. No. 02-11-10-SC provides that "a petition for
declaration of absolute nullity of void marriages may be filed solely by the husband or
the wife." To apply Section 2 (a) in bigamy would be absurd because only the guilty
parties would be permitted to sue. In the words of Fujiki, "[i]t is not, of course, difficult to
realize that the party interested in having a bigamous marriage declared a nullity would
be the husband in the prior, pre-existing marriage." 14 Fujiki had material interest and
therefore the personality to nullify a bigamous marriage.
Fujiki argued that Rule 108 (Cancellation or Correction of Entries in the Civil Registry) of
the Rules of Court is applicable. Rule 108 is the "procedural implementation" of the Civil
Register Law (Act No. 3753) 15 in relation to Article 413 of the Civil Code. 16 The Civil
Register Law imposes a duty on the "successful petitioner for divorce or annulment of
marriage to send a copy of the final decree of the court to the local registrar of the
municipality where the dissolved or annulled marriage was solemnized." 17 Section 2 of
Rule 108 provides that entries in the civil registry relating to "marriages," "judgments of
annulments of marriage" and "judgments declaring marriages void from the beginning"
are subject to cancellation or correction. 18 The petition in the RTC sought (among
others) to annotate the judgment of the Japanese Family Court on the certificate of
marriage between Marinay and Maekara. CaAIES

xxx xxx xxx

309

Fujiki's motion for reconsideration in the RTC also asserted that the trial court "gravely
erred" when, on its own, it dismissed the petition based on improper venue. Fujiki stated
that the RTC may be confusing the concept of venue with the concept of jurisdiction,
because it is lack of jurisdiction which allows a court to dismiss a case on its own. Fujiki
cited Dacoycoy v. Intermediate Appellate Court 19 which held that the "trial court
cannot pre-empt the defendant's prerogative to object to the improper laying of the
venue by motu proprio dismissing the case." 20 Moreover, petitioner alleged that the
trial court should not have "immediately dismissed" the petition under Section 5 of A.M.
No. 02-11-10-SC because he substantially complied with the provision.
On 2 March 2011, the RTC resolved to deny petitioner's motion for reconsideration. In its
Resolution, the RTC stated that A.M. No. 02-11-10-SC applies because the petitioner, in
effect, prays for a decree of absolute nullity of marriage. 21 The trial court reiterated its
two grounds for dismissal, i.e., lack of personality to sue and improper venue under
Sections 2 (a) and 4 of A.M. No. 02-11-10-SC. The RTC considered Fujiki as a "third
person" 22 in the proceeding because he "is not the husband in the decree of divorce
issued by the Japanese Family Court, which he now seeks to be judicially recognized, . .
. ." 23 On the other hand, the RTC did not explain its ground of impropriety of venue. It
only said that "[a]lthough the Court cited Sec. 4 (Venue) . . . as a ground for dismissal of
this case[,] it should be taken together with the other ground cited by the Court . . .
which is Sec. 2 (a) . . . ." 24
The RTC further justified its motu proprio dismissal of the petition based on Braza v. The
City Civil Registrar of Himamaylan City, Negros Occidental. 25The Court in Braza ruled
that "[i]n a special proceeding for correction of entry under Rule 108 (Cancellation or
Correction of Entries in the Original Registry), the trial court has no jurisdiction to nullify
marriages . . . ." 26 Braza emphasized that the "validity of marriages as well as legitimacy
and filiation can be questioned only in a direct action seasonably filed by the proper
party, and not through a collateral attack such as [a] petition [for correction of entry] . .
. ." 27
The RTC considered the petition as a collateral attack on the validity of marriage
between Marinay and Maekara. The trial court held that this is a "jurisdictional ground"
to dismiss the petition. 28 Moreover, the verification and certification against forum
shopping of the petition was not authenticated as required under Section 5 29 of A.M.
No. 02-11-10-SC. Hence, this also warranted the "immediate dismissal" of the petition
under the same provision.
The Manifestation and Motion of the Office of the Solicitor General and
the Letters of Marinay and Maekara
On 30 May 2011, the Court required respondents to file their comment on the petition
for review. 30 The public respondents, the Local Civil Registrar of Quezon City and the
Administrator and Civil Registrar General of the NSO, participated through the Office of
the Solicitor General. Instead of a comment, the Solicitor General filed a Manifestation
and Motion. 31

The Solicitor General agreed with the petition. He prayed that the RTC's
"pronouncement that the petitioner failed to comply with . . . A.M. No. 02-11-10-SC . . .
be set aside" and that the case be reinstated in the trial court for further
proceedings. 32 The Solicitor General argued that Fujiki, as the spouse of the first
marriage, is an injured party who can sue to declare the bigamous marriage between
Marinay and Maekara void. The Solicitor General citedJuliano-Llave v.
Republic 33 which held that Section 2 (a) of A.M. No. 02-11-10-SC does not apply in
cases of bigamy. In Juliano-Llave, this Court explained: SCHATc
[t]he subsequent spouse may only be expected to take action if
he or she had only discovered during the connubial period that
the marriage was bigamous, and especially if the conjugal bliss
had already vanished. Should parties in a subsequent marriage
benefit from the bigamous marriage, it would not be expected
that they would file an action to declare the marriage void and
thus, in such circumstance, the "injured spouse" who should be
given a legal remedy is the one in a subsisting previous marriage.
The latter is clearly the aggrieved party as the bigamous
marriage not only threatens the financial and the property
ownership aspect of the prior marriage but most of all, it causes
an emotional burden to the prior spouse. The subsequent
marriage will always be a reminder of the infidelity of the spouse
and the disregard of the prior marriage which sanctity is
protected by the Constitution. 34
The Solicitor General contended that the petition to recognize the Japanese Family
Court judgment may be made in a Rule 108 proceeding. 35 In Corpuz v. Santo
Tomas, 36 this Court held that "[t]he recognition of the foreign divorce decree may be
made in a Rule 108 proceeding itself, as the object of special proceedings (such as that
in Rule 108 of the Rules of Court) is precisely to establish the status or right of a party or a
particular fact." 37 WhileCorpuz concerned a foreign divorce decree, in the present
case the Japanese Family Court judgment also affected the civil status of the parties,
especially Marinay, who is a Filipino citizen.
The Solicitor General asserted that Rule 108 of the Rules of Court is the procedure to
record "[a]cts, events and judicial decrees concerning the civil status of persons" in the
civil registry as required by Article 407 of the Civil Code. In other words, "[t]he law
requires the entry in the civil registry of judicial decrees that produce legal
consequences upon a person's legal capacity and status . . . ." 38 The Japanese Family
Court judgment directly bears on the civil status of a Filipino citizen and should therefore
be proven as a fact in a Rule 108 proceeding.
Moreover, the Solicitor General argued that there is no jurisdictional infirmity in assailing
a void marriage under Rule 108, citing De Castro v. De Castro 39and Nial v.
Bayadog 40 which declared that "[t]he validity of a void marriage may be collaterally
attacked." 41

310

Marinay and Maekara individually sent letters to the Court to comply with the directive
for them to comment on the petition. 42 Maekara wrote that Marinay concealed from
him the fact that she was previously married to Fujiki. 43 Maekara also denied that he
inflicted any form of violence on Marinay.44 On the other hand, Marinay wrote that she
had no reason to oppose the petition. 45 She would like to maintain her silence for fear
that anything she say might cause misunderstanding between her and Fujiki. 46 ScTaEA
The Issues
Petitioner raises the following legal issues:
(1)Whether the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment
of Voidable Marriages (A.M. No. 02-11-10-SC) is applicable.
(2)Whether a husband or wife of a prior marriage can file a petition to recognize a
foreign judgment nullifying the subsequent marriage between his or her spouse and a
foreign citizen on the ground of bigamy.
(3)Whether the Regional Trial Court can recognize the foreign judgment in a
proceeding for cancellation or correction of entries in the Civil Registry under Rule 108 of
the Rules of Court.

To hold that A.M. No. 02-11-10-SC applies to a petition for recognition of foreign
judgment would mean that the trial court and the parties should follow its provisions,
including the form and contents of the petition, 51 the service of summons, 52 the
investigation of the public prosecutor, 53 the setting of pre-trial, 54 the trial 55 and the
judgment of the trial court. 56 This is absurd because it will litigate the case anew. It will
defeat the purpose of recognizing foreign judgments, which is "to limit repetitive
litigation on claims and issues." 57 The interpretation of the RTC is tantamount to
relitigating the case on the merits. In Mijares v. Raada, 58 this Court explained that "[i]f
every judgment of a foreign court were reviewable on the merits, the plaintiff would be
forced back on his/her original cause of action, rendering immaterial the previously
concluded litigation." 59
A foreign judgment relating to the status of a marriage affects the civil status, condition
and legal capacity of its parties. However, the effect of a foreign judgment is not
automatic. To extend the effect of a foreign judgment in the Philippines, Philippine
courts must determine if the foreign judgment is consistent with domestic public policy
and other mandatory laws. 60 Article 15 of the Civil Code provides that "[l]aws relating
to family rights and duties, or to the status, condition and legal capacity of persons are
binding upon citizens of the Philippines, even though living abroad." This is the rule of lex
nationalii in private international law. Thus, the Philippine State may require, for
effectivity in the Philippines, recognition by Philippine courts of a foreign judgment
affecting its citizen, over whom it exercises personal jurisdiction relating to the status,
condition and legal capacity of such citizen.

The Ruling of the Court

We grant the petition.
The Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages (A.M. No. 02-11-10-SC) does not apply in a petition to recognize a
foreign judgment relating to the status of a marriage where one of the parties is a citizen
of a foreign country. Moreover, in Juliano-Llave v. Republic, 47 this Court held that the
rule in A.M. No. 02-11-10-SC that only the husband or wife can file a declaration of nullity
or annulment of marriage "does not apply if the reason behind the petition is
bigamy." 48
I.
For Philippine courts to recognize a foreign judgment relating to the status of a marriage
where one of the parties is a citizen of a foreign country, the petitioner only needs to
prove the foreign judgment as a fact under the Rules of Court. To be more specific, a
copy of the foreign judgment may be admitted in evidence and proven as a fact
under Rule 132, Sections 24 and 25, in relation to Rule 39, Section 48 (b) of the Rules of
Court. 49 Petitioner may prove the Japanese Family Court judgment through (1) an
official publication or (2) a certification or copy attested by the officer who has custody
of the judgment. If the office which has custody is in a foreign country such as Japan,
the certification may be made by the proper diplomatic or consular officer of the
Philippine foreign service in Japan and authenticated by the seal of office. 50 EaISTD

A petition to recognize a foreign judgment declaring a marriage void does not require
relitigation under a Philippine court of the case as if it were a new petition for
declaration of nullity of marriage. Philippine courts cannot presume to know the foreign
laws under which the foreign judgment was rendered. They cannot substitute their
judgment on the status, condition and legal capacity of the foreign citizen who is under
the jurisdiction of another state. Thus, Philippine courts can only recognize the foreign
judgment as a fact according to the rules of evidence. ECcTaS
Section 48 (b), Rule 39 of the Rules of Court provides that a foreign judgment or final
order against a person creates a "presumptive evidence of a right as between the
parties and their successors in interest by a subsequent title." Moreover, Section 48 of the
Rules of Court states that "the judgment or final order may be repelled by evidence of a
want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law
or fact." Thus, Philippine courts exercise limited review on foreign judgments. Courts are
not allowed to delve into the merits of a foreign judgment. Once a foreign judgment is
admitted and proven in a Philippine court, it can only be repelled on grounds external
to its merits, i.e., "want of jurisdiction, want of notice to the party, collusion, fraud, or clear
mistake of law or fact." The rule on limited review embodies the policy of efficiency and
the protection of party expectations, 61 as well as respecting the jurisdiction of other
states. 62
Since 1922 in Adong v. Cheong Seng Gee, 63 Philippine courts have recognized foreign
divorce decrees between a Filipino and a foreign citizen if they are successfully proven
under the rules of evidence. 64 Divorce involves the dissolution of a marriage, but the
recognition of a foreign divorce decree does not involve the extended procedure

311

under A.M. No. 02-11-10-SC or the rules of ordinary trial. While the Philippines does not
have a divorce law, Philippine courts may, however, recognize a foreign divorce
decree under the second paragraph of Article 26 of the Family Code, to capacitate a
Filipino citizen to remarry when his or her foreign spouse obtained a divorce decree
abroad. 65
There is therefore no reason to disallow Fujiki to simply prove as a fact the Japanese
Family Court judgment nullifying the marriage between Marinay and Maekara on the
ground of bigamy. While the Philippines has no divorce law, the Japanese Family Court
judgment is fully consistent with Philippine public policy, as bigamous marriages are
declared void from the beginning under Article 35 (4) of the Family Code. Bigamy is a
crime under Article 349 of the Revised Penal Code. Thus, Fujiki can prove the existence
of the Japanese Family Court judgment in accordance with Rule 132, Sections 24 and
25, in relation to Rule 39, Section 48 (b) of the Rules of Court.
II.
Since the recognition of a foreign judgment only requires proof of fact of the judgment,
it may be made in a special proceeding for cancellation or correction of entries in the
civil registry under Rule 108 of the Rules of Court. Rule 1, Section 3 of the Rules of Court
provides that "[a] special proceeding is a remedy by which a party seeks to establish a
status, a right, or a particular fact." Rule 108 creates a remedy to rectify facts of a
person's life which are recorded by the State pursuant to the Civil Register Law or Act
No. 3753. These are facts of public consequence such as birth, death or
marriage, 66which the State has an interest in recording. As noted by the Solicitor
General, in Corpuz v. Sto. Tomas this Court declared that "[t]he recognition of the
foreign divorce decree may be made in a Rule 108 proceeding itself, as the object of
special proceedings (such as that in Rule 108 of the Rules of Court) is precisely to
establish the status or right of a party or a particular fact." 67 AIaHES
Rule 108, Section 1 of the Rules of Court states:
Sec. 1. Who may file petition. Any person interested in any act,
event, order or decree concerning the civil status of persons
which has been recorded in the civil register, may file a verified
petition for the cancellation or correction of any entry relating
thereto, with the Regional Trial Court of the province where the
corresponding civil registry is located. (Emphasis supplied)
Fujiki has the personality to file a petition to recognize the Japanese Family Court
judgment nullifying the marriage between Marinay and Maekara on the ground of
bigamy because the judgment concerns his civil status as married to Marinay. For
the same reason he has the personality to file a petition under Rule 108 to cancel
the entry of marriage between Marinay and Maekara in the civil registry on the
basis of the decree of the Japanese Family Court.
There is no doubt that the prior spouse has a personal and material interest in
maintaining the integrity of the marriage he contracted and the property relations

arising from it. There is also no doubt that he is interested in the cancellation of an entry
of a bigamous marriage in the civil registry, which compromises the public record of his
marriage. The interest derives from the substantive right of the spouse not only to
preserve (or dissolve, in limited instances) 68 his most intimate human relation, but also
to protect his property interests that arise by operation of law the moment he contracts
marriage. 69 These property interests in marriage include the right to be supported "in
keeping with the financial capacity of the family" 70 and preserving the property regime
of the marriage. 71
Property rights are already substantive rights protected by the Constitution, 72 but a
spouse's right in a marriage extends further to relational rights recognized under Title III
("Rights and Obligations between Husband and Wife") of the Family Code. 73 A.M. No.
02-11-10-SC cannot "diminish, increase, or modify" the substantive right of the spouse to
maintain the integrity of his marriage. 74 In any case, Section 2 (a) of A.M. No. 02-11-10SC preserves this substantive right by limiting the personality to sue to the husband or the
wife of the union recognized by law. DHSCTI
Section 2 (a) of A.M. No. 02-11-10-SC does not preclude a spouse of a subsisting
marriage to question the validity of a subsequent marriage on the ground of bigamy.
On the contrary, when Section 2 (a) states that "[a] petition for declaration of absolute
nullity of void marriage may be filed solely by the husband or the wife" 75 it refers to
the husband or the wife of the SUBSISTING marriage. Under Article 35 (4) of the Family
Code, bigamous marriages are void from the beginning. Thus, the parties in a bigamous
marriage are neither the husband nor the wife under the law. The husband or the wife
of the prior subsisting marriage is the one who has the personality to file a petition for
declaration of absolute nullity of void marriage under Section 2 (a) of A.M. No. 02-11-10SC.
Article 35 (4) of the Family Code, which declares bigamous marriages void from the
beginning, is the civil aspect of Article 349 of the Revised Penal Code,76 which
penalizes bigamy. Bigamy is a public crime. Thus, anyone can initiate prosecution for
bigamy because any citizen has an interest in the prosecution and prevention of
crimes. 77 If anyone can file a criminal action which leads to the declaration of nullity of
a bigamous marriage, 78 there is more reason to confer personality to sue on the
husband or the wife of a subsisting marriage. The prior spouse does not only share in the
public interest of prosecuting and preventing crimes, he is also personally interested in
the purely civil aspect of protecting his marriage.
When the right of the spouse to protect his marriage is violated, the spouse is clearly an
injured party and is therefore interested in the judgment of the suit. 79 JulianoLlave ruled that the prior spouse "is clearly the aggrieved party as the bigamous
marriage not only threatens the financial and the property ownership aspect of the prior
marriage but most of all, it causes an emotional burden to the prior spouse." 80 Being a
real party in interest, the prior spouse is entitled to sue in order to declare a bigamous
marriage void. For this purpose, he can petition a court to recognize a foreign judgment
nullifying the bigamous marriage and judicially declare as a fact that such judgment is
effective in the Philippines. Once established, there should be no more impediment to
cancel the entry of the bigamous marriage in the civil registry.

312

III.
In Braza v. The City Civil Registrar of Himamaylan City, Negros Occidental, this Court
held that a "trial court has no jurisdiction to nullify marriages" in a special proceeding for
cancellation or correction of entry under Rule 108 of the Rules of Court. 81 Thus, the
"validity of marriage[] . . . can be questioned only in a direct action" to nullify the
marriage. 82 The RTC relied on Braza in dismissing the petition for recognition of foreign
judgment as a collateral attack on the marriage between Marinay and
Maekara. EAcTDH
Braza is not applicable because Braza does not involve a recognition of a foreign
judgment nullifying a bigamous marriage where one of the parties is a citizen of the
foreign country.
To be sure, a petition for correction or cancellation of an entry in the civil registry cannot
substitute for an action to invalidate a marriage. A direct action is necessary to prevent
circumvention of the substantive and procedural safeguards of marriage under the
Family Code, A.M. No. 02-11-10-SC and other related laws. Among these safeguards are
the requirement of proving the limited grounds for the dissolution of
marriage, 83 support pendente lite of the spouses and children, 84 the liquidation,
partition and distribution of the properties of the spouses, 85 and the investigation of the
public prosecutor to determine collusion. 86 A direct action for declaration of nullity or
annulment of marriage is also necessary to prevent circumvention of the jurisdiction of
the Family Courts under the Family Courts Act of 1997 (Republic Act No. 8369), as a
petition for cancellation or correction of entries in the civil registry may be filed in the
Regional Trial Court "where the corresponding civil registry is located." 87 In other words,
a Filipino citizen cannot dissolve his marriage by the mere expedient of changing his
entry of marriage in the civil registry.
However, this does not apply in a petition for correction or cancellation of a civil registry
entry based on the recognition of a foreign judgment annulling a marriage where one
of the parties is a citizen of the foreign country. There is neither circumvention of the
substantive and procedural safeguards of marriage under Philippine law, nor of the
jurisdiction of Family Courts under R.A. No. 8369. A recognition of a foreign judgment is
not an action to nullify a marriage. It is an action for Philippine courts to recognize the
effectivity of a foreign judgment, which presupposes a case which was already tried
and decided under foreign law. The procedure in A.M. No. 02-11-10-SC does not apply
in a petition to recognize a foreign judgment annulling a bigamous marriage where one
of the parties is a citizen of the foreign country. Neither can R.A. No. 8369 define the
jurisdiction of the foreign court.
Article 26 of the Family Code confers jurisdiction on Philippine courts to extend the
effect of a foreign divorce decree to a Filipino spouse without undergoing trial to
determine the validity of the dissolution of the marriage. The second paragraph of
Article 26 of the Family Code provides that "[w]here a marriage between a Filipino
citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall
have capacity to remarry under Philippine law." In Republic v. Orbecido, 88 this Court

recognized the legislative intent of the second paragraph of Article 26 which is "to avoid
the absurd situation where the Filipino spouse remains married to the alien spouse who,
after obtaining a divorce, is no longer married to the Filipino spouse" 89 under the laws
of his or her country. The second paragraph of Article 26 of the Family Code only
authorizes Philippine courts to adopt the effects of a foreign divorce decree precisely
because the Philippines does not allow divorce. Philippine courts cannot try the case on
the merits because it is tantamount to trying a case for divorce.
The second paragraph of Article 26 is only a corrective measure to address the
anomaly that results from a marriage between a Filipino, whose laws do not allow
divorce, and a foreign citizen, whose laws allow divorce. The anomaly consists in the
Filipino spouse being tied to the marriage while the foreign spouse is free to marry under
the laws of his or her country. The correction is made by extending in the Philippines the
effect of the foreign divorce decree, which is already effective in the country where it
was rendered. The second paragraph of Article 26 of the Family Code is based on this
Court's decision in Van Dorn v. Romillo 90 which declared that the Filipino spouse
"should not be discriminated against in her own country if the ends of justice are to be
served." 91 IDETCA
The principle in Article 26 of the Family Code applies in a marriage between a Filipino
and a foreign citizen who obtains a foreign judgment nullifying the marriage on the
ground of bigamy. The Filipino spouse may file a petition abroad to declare the
marriage void on the ground of bigamy. The principle in the second paragraph of
Article 26 of the Family Code applies because the foreign spouse, after the foreign
judgment nullifying the marriage, is capacitated to remarry under the laws of his or her
country. If the foreign judgment is not recognized in the Philippines, the Filipino spouse
will be discriminated the foreign spouse can remarry while the Filipino spouse cannot
remarry.
Under the second paragraph of Article 26 of the Family Code, Philippine courts are
empowered to correct a situation where the Filipino spouse is still tied to the marriage
while the foreign spouse is free to marry. Moreover, notwithstanding Article 26 of the
Family Code, Philippine courts already have jurisdiction to extend the effect of a foreign
judgment in the Philippines to the extent that the foreign judgment does not contravene
domestic public policy. A critical difference between the case of a foreign divorce
decree and a foreign judgment nullifying a bigamous marriage is that bigamy, as a
ground for the nullity of marriage, is fully consistent with Philippine public policy as
expressed in Article 35 (4) of the Family Code and Article 349 of the Revised Penal
Code. The Filipino spouse has the option to undergo full trial by filing a petition for
declaration of nullity of marriage under A.M. No. 02-11-10-SC, but this is not the only
remedy available to him or her. Philippine courts have jurisdiction to recognize a foreign
judgment nullifying a bigamous marriage, without prejudice to a criminal prosecution
for bigamy.
In the recognition of foreign judgments, Philippine courts are incompetent to substitute
their judgment on how a case was decided under foreign law. They cannot decide on
the "family rights and duties, or on the status, condition and legal capacity" of the
foreign citizen who is a party to the foreign judgment. Thus, Philippine courts are limited
to the question of whether to extend the effect of a foreign judgment in the Philippines.

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In a foreign judgment relating to the status of a marriage involving a citizen of a foreign

country, Philippine courts only decide whether to extend its effect to the Filipino party,
under the rule of lex nationalii expressed in Article 15 of the Civil Code.

DECISION

For this purpose, Philippine courts will only determine (1) whether the foreign judgment is
inconsistent with an overriding public policy in the Philippines; and (2) whether any
alleging party is able to prove an extrinsic ground to repel the foreign
judgment, i.e., want of jurisdiction, want of notice to the party, collusion, fraud, or clear
mistake of law or fact. If there is neither inconsistency with public policy nor adequate
proof to repel the judgment, Philippine courts should, by default, recognize the foreign
judgment as part of the comity of nations. Section 48 (b), Rule 39 of the Rules of Court
states that the foreign judgment is already "presumptive evidence of a right between
the parties." Upon recognition of the foreign judgment, this right becomes conclusive
and the judgment serves as the basis for the correction or cancellation of entry in the
civil registry. The recognition of the foreign judgment nullifying a bigamous marriage is a
subsequent event that establishes a new status, right and fact 92 that needs to be
reflected in the civil registry. Otherwise, there will be an inconsistency between the
recognition of the effectivity of the foreign judgment and the public records in the
Philippines.

Petitioner LWV Construction Corporation appeals the Decision 1 dated December 6,

2005 of the Court of Appeals in CA-G.R. SP No. 76843 and its Resolution 2 dated April 12,
2006, denying the motion for reconsideration. The Court of Appeals had ruled that
under Article 87 of the Saudi Labor and Workmen Law (Saudi Labor Law), respondent
Marcelo Dupo is entitled to a service award or longevity pay amounting to
US$12,640.33.

However, the recognition of a foreign judgment nullifying a bigamous marriage is

without prejudice to prosecution for bigamy under Article 349 of the Revised Penal
Code. 93 The recognition of a foreign judgment nullifying a bigamous marriage is not a
ground for extinction of criminal liability under Articles 89 and 94 of the Revised Penal
Code. Moreover, under Article 91 of the Revised Penal Code, "[t]he term of prescription
[of the crime of bigamy] shall not run when the offender is absent from the Philippine
archipelago." CcHDSA
Since A.M. No. 02-11-10-SC is inapplicable, the Court no longer sees the need to
address the questions on venue and the contents and form of the petition under
Sections 4 and 5, respectively, of A.M. No. 02-11-10-SC.
WHEREFORE, we GRANT the petition. The Order dated 31 January 2011 and the
Resolution dated 2 March 2011 of the Regional Trial Court, Branch 107, Quezon City, in
Civil Case No. Q-11-68582 are REVERSED and SET ASIDE. The Regional Trial Court
is ORDERED to REINSTATE the petition for further proceedings in accordance with this
Decision.

QUISUMBING, J p:

The antecedent facts are as follows:

LWV CONSTRUCTION, a domestic corporation which recruits Filipino workers, hired DUPO
as Civil Structural Superintendent to work in Saudi Arabia for its principal, Mohammad AlMojil Group/Establishment (MMG). On February 26, 1992, DUPO signed his first overseas
employment contract, renewable after one year. It was renewed five times on the
following dates: May 10, 1993, November 16, 1994, January 22, 1996, April 14, 1997, and
March 26, 1998. All were fixed-period contracts for one year. The sixth and last contract
stated that DUPO's employment starts upon reporting to work and ends when he leaves
the work site. DUPO left Saudi Arabia on April 30, 1999 and arrived in the Philippines on
May 1, 1999.
On May 28, 1999, DUPO informed MMG, through the petitioner, that he needs to extend
his vacation because his son was hospitalized. He also sought a promotion with salary
adjustment. 3 In reply, MMG informed DUPO that his promotion is subject to
management's review; that his services are still needed; that he was issued a plane
ticket for his return flight to Saudi Arabia on May 31, 1999; and that his decision
regarding his employment must be made within seven days, otherwise, MMG "will be
compelled to cancel [his] slot". 4
On July 6, 1999, DUPO resigned. In his letter to MMG, he also stated:
xxx xxx xxx

SO ORDERED.

I am aware that I still have to do a final settlement with the company and hope that
during my more than seven (7) [years] services, as the Saudi Law stated, I am entitled for
a long service award. 5 (Emphasis supplied.)

Brion, Del Castillo, Perez and Perlas-Bernabe, JJ., concur.

xxx xxx xxx

SECOND DIVISION
[G.R. No. 172342. July 13, 2009.]
23. LWV CONSTRUCTION CORPORATION, petitioner, vs. MARCELO B. DUPO, respondent.

According to DUPO, when he followed up his claim for long service award on
December 7, 2000, LWV CONSTRUCTION informed him that MMG did not respond. 6
On December 11, 2000, DUPO filed a complaint 7 for payment of service award against
LWV CONSTRUCTION before the National Labor Relations Commission (NLRC), Regional

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Arbitration Branch, Cordillera Administrative Region, Baguio City. In support of his claim,
DUPO averred in his position paper that:

LWV CONSTRUCTION appealed. However, the NLRC dismissed the appeal and affirmed
the Labor Arbiter's decision. 14 The NLRC ruled that DUPO is entitled to longevity pay
which is different from severance pay.

xxx xxx xxx

Under the Law of Saudi Arabia, an employee who rendered at least five (5) years in a
company within the jurisdiction of Saudi Arabia, is entitled to the so-called long service
award which is known to others as longevity pay of at least one half month pay for
every year of service. In excess of five years an employee is entitled to one month pay
for every year of service. In both cases inclusive of all benefits and allowances.

Aggrieved, LWV CONSTRUCTION brought the case to the Court of Appeals through a
petition for certiorari under Rule 65 of the Rules of Court. The Court of Appeals denied
the petition and affirmed the NLRC. The Court of Appeals ruled that service award is the
same as longevity pay, and that the severance pay received by DUPO cannot be
equated with service award. The dispositive portion of the Court of Appeals decision
reads:

This benefit was offered to complainant before he went on vacation, hence, this was
engrained in his mind. He reconstructed the computation of his long service award or
longevity pay and he arrived at the following computation exactly the same with the
amount he was previously offered [which is US$12,640.33]. 8 (Emphasis supplied.)

WHEREFORE, finding no grave abuse of discretion amounting to lack or in (sic) excess of

jurisdiction on the part of public DUPO NLRC, the petition is denied. The NLRC decision
dated November 29, 2002 as well as and (sic) its January 31, 2003 Resolution are
hereby AFFIRMED in toto.

xxx xxx xxx

SO ORDERED. 15

DUPO said that he did not grab the offer for he intended to return after his vacation.

After its motion for reconsideration was denied, LWV CONSTRUCTION filed the instant
petition raising the following issues:

For its part, LWV CONSTRUCTION offered payment and prescription as defenses. LWV
CONSTRUCTION maintained that MMG "pays its workers theirService Award or
Severance Pay every conclusion of their Labor Contracts pursuant to Article 87 of the
[Saudi Labor Law]". Under Article 87, "payment of the award is at the end or termination
of the Labor Contract concluded for a specific period". Based on the payroll, 9 DUPO
was already paid his service award or severance pay for his latest (sixth) employment
contract.

I.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN FINDING NO GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION ON THE PART
OF PUBLIC RESPONDENT NATIONAL LABOR RELATIONS COMMISSION.
II.

LWV CONSTRUCTION added that under Article 13 10 of the Saudi Labor Law, the action
to enforce payment of the service award must be filed within one year from the
termination of a labor contract for a specific period. DUPO's six contracts ended when
he left Saudi Arabia on the following dates: April 15, 1993, June 8, 1994, December 18,
1995, March 21, 1997, March 16, 1998 and April 30, 1999. LWV CONSTRUCTION
concluded that the one-year prescriptive period had lapsed because DUPO filed his
complaint on December 11, 2000 or one year and seven months after his sixth contract
ended. 11 STcADa
In his June 18, 2001 Decision, 12 the Labor Arbiter ordered LWV CONSTRUCTION to pay
DUPO longevity pay of US$12,640.33 or P648,562.69 and attorney's fees of P64,856.27 or a
total of P713,418.96. 13
The Labor Arbiter ruled that DUPO's seven-year employment with MMG had sufficiently
oriented him on the benefits given to workers; that LWV CONSTRUCTION was unable to
convincingly refute DUPO's claim that MMG offered him longevity pay before he went
on vacation on May 1, 1999; and that DUPO's claim was not barred by prescription
since his claim on July 6, 1999, made a month after his cause of action accrued,
interrupted the prescriptive period under the Saudi Labor Law until his claim was
categorically denied.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT THE
SERVICE AWARD OF THE RESPONDENT [HAS] NOT PRESCRIBED WHEN HIS COMPLAINT WAS
FILED ON DECEMBER 11, 2000. caCEDA
III.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN APPLYING IN THE CASE
AT BAR [ARTICLE 1155 OF THE CIVIL CODE].
IV.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN APPLYING ARTICLE NO.
7 OF THE SAUDI LABOR AND WORKMEN LAW TO SUPPORT ITS FINDING THAT THE BASIS OF
THE SERVICE AWARD IS LONGEVITY [PAY] OR LENGTH OF SERVICE RENDERED BY AN
EMPLOYEE. 16
Essentially, the issue is whether the Court of Appeals erred in ruling that DUPO is entitled
to a service award or longevity pay of US$12,640.33 under the provisions of the Saudi

315

Labor Law. Related to this issue are LWV CONSTRUCTION's defenses of payment and
prescription.

C. If the workman is leaving the work as a result of a force majeure beyond his
control. 17 (Emphasis supplied.)

LWV CONSTRUCTION points out that the Labor Arbiter awarded longevity pay although
the Saudi Labor Law grants no such benefit, and the NLRC confused longevity pay and
service award. LWV CONSTRUCTION maintains that the benefit granted by Article 87 of
the Saudi Labor Law is service award which was already paid by MMG each time
DUPO's contract ended.

DUPO, however, has called the benefit other names such as long service
award and longevity pay. On the other hand, LWV CONSTRUCTION claimed that
the service award is the same as severance pay. Notably, the Labor Arbiter was unable
to specify any law to support his award of longevity pay. 18 He anchored the award on
his finding that DUPO's allegations were more credible because his seven-year
employment at MMG had sufficiently oriented him on the benefits given to workers. To
the NLRC, DUPO is entitled to service award or longevity pay under Article 87 and
that longevity pay is different from severance pay. The Court of Appeals agreed.

LWV CONSTRUCTION insists that prescription barred DUPO's claim for service award as
the complaint was filed one year and seven months after the sixth contract ended. LWV
CONSTRUCTION alleges that the Court of Appeals erred in ruling that DUPO's July 6, 1999
claim interrupted the running of the prescriptive period. Such ruling is contrary to Article
13 of the Saudi Labor Law which provides that no case or claim relating to any of the
rights provided for under said law shall be heard after the lapse of 12 months from the
date of the termination of the contract.
DUPO counters that he is entitled to longevity pay under the provisions of the Saudi
Labor Law and quotes extensively the decision of the Court of Appeals. He points out
that LWV CONSTRUCTION has not refuted the Labor Arbiter's finding that MMG offered
him longevity pay of US$12,640.33 before his one-month vacation in the Philippines in
1999. Thus, he "submits that such offer indeed exists" as he sees no reason for MMG to
offer the benefit if no law grants it.
After a careful study of the case, we are constrained to reverse the Court of Appeals.
We find that DUPO's service award under Article 87 of the Saudi Labor Law has already
been paid. Our computation will show that the severance pay received by DUPO was
his service award.

Considering that Article 87 expressly grants a service award, why is it correct to agree
with DUPO that service award is the same as longevity pay, and wrong to agree with
LWV CONSTRUCTION that service award is the same as severance pay? And why would
it be correct to say that service award is severance pay, and wrong to call service
award as longevity pay?
We found the answer in the pleadings and evidence presented. DUPO's position paper
mentioned how his long service award or longevity pay is computed: half-month's pay
per year of service and one-month's pay per year after five years of service. Article 87
has the same formula to compute the service award.
The payroll submitted by LWV CONSTRUCTION showed that DUPO received severance
pay of SR2,786 for his sixth employment contract covering the period April 21, 1998 to
April 29, 1999. 19 The computation below shows that DUPO's severance pay of SR2,786
was his service award under Article 87.
Service Award = 1/2 (SR5,438) + (9 days/365 days) x 1/2 (SR5,438)

Article 87 clearly grants a service award. It reads: HAEDIS

Service Award = SR2,786.04
Article 87
Where the term of a labor contract concluded for a specified period comes to an end or
where the employer cancels a contract of unspecified period, the employer shall pay
to the workman an award for the period of his service to be computed on the basis of
half a month's pay for each of the first five years and one month's pay for each of the
subsequent years. The last rate of pay shall be taken as basis for the computation of the
award. For fractions of a year, the workman shall be entitled to an award which is
proportionate to his service period during that year. Furthermore, the workman shall be
entitled to the service award provided for at the beginning of this article in the following
cases:
A. If he is called to military service.
B. If a workman resigns because of marriage or childbirth.

DUPO's service award for the sixth contract is equivalent only to half-month's pay plus
the proportionate amount for the additional nine days of service he rendered after one
year. DUPO's employment contracts expressly stated that his employment ended upon
his departure from work. Each year he departed from work and successively new
contracts were executed before he reported for work anew. His service was not
cumulative. Pertinently, in Brent School, Inc. v. Zamora, 22 we said that "a fixed term is
an essential and natural appurtenance" of overseas employment contracts, 23 as in this
case. We also said in that case that under American law, "[w]here a contract specifies
the period of its duration, it terminates on the expiration of such period. A contract of
employment for a definite period terminates by its own terms at the end of such
period." 24 As it is, Article 72 of the Saudi Labor Law is also of similar import. It
reads: HIACEa
A labor contract concluded for a specified period shall terminate upon the expiry of its
term. If both parties continue to enforce the contract, thereafter, it shall be considered
renewed for an unspecified period. 25

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Regarding DUPO's claim that he was offered US$12,640.33 as longevity pay before he
returned to the Philippines on May 1, 1999, we find that he was not candid on this
particular point. His categorical assertion about the offer being "engrained in his mind"
such that he "reconstructed the computation . . . and arrived at the . . . computation
exactly the same with the amount he was previously offered" is not only beyond belief.
Such assertion is also a stark departure from his July 6, 1999 letter to MMG where he
could only express his hope that he was entitled to a long service award and where he
never mentioned the supposed previous offer. Moreover, DUPO's claim that his monthly
compensation is SR10,248.92 26 is belied by the payroll which shows that he receives
SR5,438 per month.
We therefore emphasize that such payroll should have prompted the lower tribunals to
examine closely DUPO's computation of his supposed longevity pay before adopting
that computation as their own.
On the matter of prescription, however, we cannot agree with LWV CONSTRUCTION
that DUPO's action has prescribed under Article 13 of the Saudi Labor Law. What applies
is Article 291 of our Labor Code which reads:
ART. 291. Money claims. All money claims arising from employer-employee relations
accruing during the effectivity of this Code shall be filed within three (3) years from the
time the cause of action accrued; otherwise they shall be forever barred.
xxx xxx xxx
In Cadalin v. POEA's Administrator, 27 we held that Article 291 covers all money claims
from employer-employee relationship and is broader in scope than claims arising from a
specific law. It is not limited to money claims recoverable under the Labor Code, but
applies also to claims of overseas contract workers. 28 The following ruling in Cadalin v.
POEA's Administrator is instructive:

A law on prescription of actions is sui generis in Conflict of Laws in the sense that it may
be viewed either as procedural or substantive, depending on the characterization given
such a law.
xxx xxx xxx
However, the characterization of a statute into a procedural or substantive law
becomes irrelevant when the country of the forum has a "borrowing statute". Said
statute has the practical effect of treating the foreign statute of limitation as one of
substance (Goodrich, Conflict of Laws, 152-153 [1938]). A "borrowing statute" directs the
state of the forum to apply the foreign statute of limitations to the pending claims based
on a foreign law (Siegel, Conflicts, 183 [1975]). While there are several kinds of
"borrowing statutes", one form provides that an action barred by the laws of the place
where it accrued, will not be enforced in the forum even though the local statute has
not run against it (Goodrich and Scoles, Conflict of Laws, 152-153 [1938]). Section 48 of
our Code of Civil Procedure is of this kind. Said Section provides:
"If by the laws of the state or country where the cause of action arose, the action is
barred, it is also barred in the Philippine Islands."
Section 48 has not been repealed or amended by the Civil Code of the Philippines.
Article 2270 of said Code repealed only those provisions of the Code of Civil Procedure
as to which were inconsistent with it. There is no provision in the Civil Code of the
Philippines, which is inconsistent with or contradictory to Section 48 of the Code of Civil
Procedure (Paras, Philippine Conflict of Laws, 104 [7th ed.]).
In the light of the 1987 Constitution, however, Section 48 [of the Code of Civil Procedure]
cannot be enforced ex proprio vigore insofar as it ordains the application in this
jurisdiction of [Article] 156 of the Amiri Decree No. 23 of 1976.

First to be determined is whether it is the Bahrain law on prescription of action based on

the Amiri Decree No. 23 of 1976 or a Philippine law on prescription that shall be the
governing law.

The courts of the forum will not enforce any foreign claim obnoxious to the forum's
public policy . . . . To enforce the one-year prescriptive period of the Amiri Decree No.
23 of 1976 as regards the claims in question would contravene the public policy on the
protection to labor. 29

Article 156 of the Amiri Decree No. 23 of 1976 provides:

xxx xxx xxx

"A claim arising out of a contract of employment shall not be actionable after the lapse
of one year from the date of the expiry of the contract" . . . .

Thus, in our considered view, DUPO's complaint was filed well within the three-year
prescriptive period under Article 291 of our Labor Code. This point, however, has already
been mooted by our finding that DUPO's service award had been paid, albeit the
payroll termed such payment as severance pay.

As a general rule, a foreign procedural law will not be applied in the forum. Procedural
matters, such as service of process, joinder of actions, period and requisites for appeal,
and so forth, are governed by the laws of the forum. This is true even if the action is
based upon a foreign substantive law (Restatement of the Conflict of Laws, Sec. 685;
Salonga, Private International Law, 131 [1979]). ScCIaA

WHEREFORE, the petition is GRANTED. The assailed Decision dated December 6, 2005
and Resolution dated April 12, 2006, of the Court of Appeals in CA-G.R. SP No. 76843, as
well as the Decision dated June 18, 2001 of the Labor Arbiter in NLRC Case No. RABCAR-12-0649-00 and the Decision dated November 29, 2002 and Resolution dated
January 31, 2003 of the NLRC in NLRC CA No. 028994-01 (NLRC RAB-CAR-12-0649-00)
are REVERSED and SET ASIDE. The Complaint of DUPO is hereby DISMISSED. DTaSIc

317

No pronouncement as to costs.

Corporations further contended that Ikdal should not be liable as an officer of ATCI
Corporation ATCI.

SO ORDERED.
By Decision 6 of March 30, 2007, the appellate court affirmed the NLRC Resolution.
THIRD DIVISION
[G.R. No. 178551. October 11, 2010.]
24. ATCI OVERSEAS CORPORATION, AMALIA G. IKDAL and MINISTRY OF PUBLIC HEALTHKUWAIT, petitioners,vs. MA. JOSEFA ECHIN, respondent.
DECISION
CARPIO MORALES, J p:
Josefina Echin was hired by ATCI Overseas Corporation in behalf of its principal-co-ATCI
Corporation, the Ministry of Public Health of Kuwait (the Ministry), for the position of
medical technologist under a two-year contract, denominated as a Memorandum of
Agreement (MOA), with a monthly salary of US$1,200.00.
Under the MOA, 1 all newly-hired employees undergo a probationary period of one (1)
year and are covered by Kuwait's Civil Service Board Employment Contract No. 2.
ECHIN was deployed on February 17, 2000 but was terminated from employment on
February 11, 2001, she not having allegedly passed the probationary period.
As the Ministry denied ECHIN's request for reconsideration, she returned to the Philippines
on March 17, 2001, shouldering her own air fare.
On July 27, 2001, ECHIN filed with the National Labor Relations Commission (NLRC) a
complaint 2 for illegal dismissal against ATCI Corporation ATCI as the local recruitment
agency, represented by ATCI Corporation, Amalia Ikdal (Ikdal), and the Ministry, as the
foreign principal.
By Decision 3 of November 29, 2002, the Labor Arbiter, finding that ATCI Corporations
neither showed that there was just cause to warrant ECHIN's dismissal nor that she failed
to qualify as a regular employee, held that ECHIN was illegally dismissed and
accordingly ordered ATCI Corporations to pay her US$3,600.00, representing her salary
for the three months unexpired portion of her contract.
On appeal of ATCI Corporations ATCI and Ikdal, the NLRC affirmed the Labor Arbiter's
decision by Resolution 4 of January 26, 2004. ATCI Corporations' motion for
reconsideration having been denied by Resolution 5 of April 22, 2004, they appealed to
the Court of Appeals, contending that their principal, the Ministry, being a foreign
government agency, is immune from suit and, as such, the immunity extended to them;
and that ECHIN was validly dismissed for her failure to meet the performance rating
within the one-year period as required under Kuwait's Civil Service Laws. ATCI

In brushing aside ATCI Corporations' contention that they only acted as agent of the
Ministry and that they cannot be held jointly and solidarily liable with it, the appellate
court noted that under the law, a private employment agency shall assume all
responsibilities for the implementation of the contract of employment of an overseas
worker, hence, it can be sued jointly and severally with the foreign principal for any
violation of the recruitment agreement or contract of employment. ATcaHS
As to Ikdal's liability, the appellate court held that under Sec. 10 of Republic Act No.
8042, the "Migrant and Overseas Filipinos' Act of 1995," corporate officers, directors and
partners of a recruitment agency may themselves be jointly and solidarily liable with the
recruitment agency for money claims and damages awarded to overseas workers.
ATCI Corporations' motion for reconsideration having been denied by the appellate
court by Resolution 7 of June 27, 2007, the present petition for review on certiorari was
filed.
ATCI Corporations maintain that they should not be held liable because ECHIN's
employment contract specifically stipulates that her employment shall be governed by
the Civil Service Law and Regulations of Kuwait. They thus conclude that it was patent
error for the labor tribunals and the appellate court to apply the Labor Code provisions
governing probationary employment in deciding the present case.
Further, ATCI Corporations argue that even the Philippine Overseas Employment Act
(POEA) Rules relative to master employment contracts (Part III, Sec. 2 of the POEA Rules
and Regulations) accord respect to the "customs, practices, company policies and
labor laws and legislation of the host country."
Finally, ATCI Corporations posit that assuming arguendo that Philippine labor laws are
applicable, given that the foreign principal is a government agency which is immune
from suit, as in fact it did not sign any document agreeing to be held jointly and
solidarily liable, ATCI Corporation ATCI cannot likewise be held liable, more so since the
Ministry's liability had not been judicially determined as jurisdiction was not acquired
over it.
The petition fails.
ATCI Corporation ATCI, as a private recruitment agency, cannot evade responsibility for
the money claims of Overseas Filipino workers (OFWs) which it deploys abroad by the
mere expediency of claiming that its foreign principal is a government agency clothed
with immunity from suit, or that such foreign principal's liability must first be established
before it, as agent, can be held jointly and solidarily liable.

318

In providing for the joint and solidary liability of private recruitment agencies with their
foreign principals, Republic Act No. 8042 precisely affords the OFWs with a recourse and
assures them of immediate and sufficient payment of what is due them.Skippers United
Pacific v. Maguad 8 explains:
. . . [T]he obligations covenanted in the recruitment agreement entered into by and
between the local agent and its foreign principal are not coterminous with the term of
such agreement so that if either or both of the parties decide to end the agreement,
the responsibilities of such parties towards the contracted employees under the
agreement do not at all end, but the same extends up to and until the expiration of the
employment contracts of the employees recruited and employed pursuant to the said
recruitment agreement. Otherwise, this will render nugatory the very purpose for which
the law governing the employment of workers for foreign jobs abroad was
enacted. (emphasis supplied)
The imposition of joint and solidary liability is in line with the policy of the state to protect
and alleviate the plight of the working class. 9 Verily, to allow ATCI Corporations to
simply invoke the immunity from suit of its foreign principal or to wait for the judicial
determination of the foreign principal's liability before ATCI Corporation can be held
liable renders the law on joint and solidary liability inutile.
As to ATCI Corporations' contentions that Philippine labor laws on probationary
employment are not applicable since it was expressly provided in ECHIN's employment
contract, which she voluntarily entered into, that the terms of her engagement shall be
governed by prevailing Kuwaiti Civil Service Laws and Regulations as in fact POEA Rules
accord respect to such rules, customs and practices of the host country, the same was
not substantiated.
Indeed, a contract freely entered into is considered the law between the parties who
can establish stipulations, clauses, terms and conditions as they may deem convenient,
including the laws which they wish to govern their respective obligations, as long as they
are not contrary to law, morals, good customs, public order or public policy.
It is hornbook principle, however, that the party invoking the application of a foreign law
has the burden of proving the law, under the doctrine of processual presumption which,
in this case, ATCI Corporations failed to discharge. The Court's ruling in EDI-Staffbuilders
Int'l. v. NLRC 10 illuminates:
In the present case, the employment contract signed by Gran specifically states that
Saudi Labor Laws will govern matters not provided for in the contract (e.g., specific
causes for termination, termination procedures, etc.). Being the law intended by the
parties (lex loci intentiones) to apply to the contract, Saudi Labor Laws should govern all
matters relating to the termination of the employment of Gran. HcACTE
In international law, the party who wants to have a foreign law applied to a dispute or
case HAS THE BURDEN OF PROVING THE FOREIGN LAW. The foreign law is treated as a
question of fact to be properly pleaded and proved as the judge or labor arbiter cannot

take judicial notice of a foreign law. He is presumed to know only domestic or forum
law.
Unfortunately for ATCI Corporation, it did not prove the pertinent Saudi laws on the
matter; thus, the International Law doctrine of presumed-identity
approach or processual presumption comes into play. Where a foreign law is not
pleaded or, even if pleaded, is not proved, the presumption is that foreign law is the
same as ours. Thus, we apply Philippine labor laws in determining the issues presented
before us. (emphasis and underscoring supplied)
The Philippines does not take judicial notice of foreign laws, hence, they must not only
be alleged; they must be proven. To prove a foreign law, the party invoking it must
present a copy thereof and comply with Sections 24 and 25 of Rule 132 of the Revised
Rules of Court which reads:
SEC. 24.Proof of official record. The record of public documents referred to in
paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by
an official publication thereof or by a copy attested by the officer having the legal
custody of the record, or by his deputy, and accompanied, if the record is not kept in
the Philippines, with a certificate that such officer has the custody. If the office in which
the record is kept is in a foreign country, the certificate may be made by a secretary of
the embassy or legation, consul general, consul, vice consul, or consular agent or by
any officer in the foreign service of the Philippines stationed in the foreign country in
which the record is kept, and authenticated by the seal of his office. (emphasis
supplied)
SEC. 25.What attestation of copy must state. Whenever a copy of a document or
record is attested for the purpose of the evidence, the attestation must state, in
substance, that the copy is a correct copy of the original, or a specific part thereof, as
the case may be. The attestation must be under the official seal of the attesting officer, if
there be any, or if he be the clerk of a court having a seal, under the seal of such
court.
To prove the Kuwaiti law, ATCI Corporations submitted the following: MOA between
ECHIN and the Ministry, as represented by ATCI, which provides that the employee is
subject to a probationary period of one (1) year and that the host country's Civil Service
Laws and Regulations apply; a translated copy 11 (Arabic to English) of the termination
letter to ECHIN stating that she did not pass the probation terms, without specifying the
grounds therefor, and a translated copy of the certificate of termination, 12 both of
which documents were certified by Mr. Mustapha Alawi, Head of the Department of
Foreign Affairs-Office of Consular Affairs Inslamic Certification and Translation Unit; and
ECHIN's letter 13 of reconsideration to the Ministry, wherein she noted that in her first
eight (8) months of employment, she was given a rating of "Excellent" albeit it changed
due to changes in her shift of work schedule.
These documents, whether taken singly or as a whole, do not sufficiently prove that
ECHIN was validly terminated as a probationary employee under Kuwaiti civil service
laws. Instead of submitting a copy of the pertinent Kuwaiti labor laws duly authenticated

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and translated by Embassy officials thereat, as required under the Rules, what ATCI
Corporations submitted were mere certifications attesting only to the correctness of the
translations of the MOA and the termination letter which does not prove at all that
Kuwaiti civil service laws differ from Philippine laws and that under such Kuwaiti laws,
ECHIN was validly terminated. Thus the subject certifications read:
xxx xxx xxx

Agcaoili & Associates for petitioner.

William R. Veto for respondent.
DECISION
AUSTRIA-MARTINEZ, J p:

This is to certify that the herein attached translation/s from Arabic to English/Tagalog
and or vice versa was/were presented to this Office for review and certification and the
same WAS/WERE FOUND TO BE IN ORDER. This Office, however, assumes no responsibility
as to the contents of the document/s.
This certification is being issued upon request of the interested party for whatever legal
purpose it may serve. (emphasis supplied)
Respecting Ikdal's joint and solidary liability as a corporate officer, the same is in order
too following the express provision of R.A. 8042 on money claims, viz.:
SEC. 10.Money Claims. Notwithstanding any provision of law to the contrary, the
Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original
and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the
filing of the complaint, the claims arising out of an employer-employee relationship or
by virtue of any law or contract involving Filipino workers for overseas deployment
including claims for actual moral, exemplary and other forms of damages. cHDAIS
The liability of the principal/employer and the recruitment/placement agency for any
and all claims under this section shall be joint and several. This provision shall be
incorporated in the contract for overseas employment and shall be a condition
precedent for its approval. The performance bond to be filed by the
recruitment/placement agency, as provided by law, shall be answerable for all money
claims or damages that may be awarded to the workers. If the recruitment/placement
agency is a juridical being, the corporate officers and directors and partners as the
case may be, shall themselves be jointly and solidarily liable with the corporation or
partnership for the aforesaid claims and damages. (emphasis and underscoring
supplied)
WHEREFORE, the petition is DENIED.
SECOND DIVISION
[G.R. No. 120135. March 31, 2003.]
25. BANK OF AMERICA NT&SA, BANK OF AMERICA INTERNATIONAL, LTD., petitioners, vs.
COURT OF APPEALS, HON. MANUEL PADOLINA, EDUARDO LITONJUA, SR., and AURELIO K.
LITONJUA, JR., respondents.

This is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the
November 29, 1994 decision of the Court of Appeals 1 and the April 28, 1995 resolution
denying petitioners' motion for reconsideration.
The factual background of the case is as follows:
On May 10, 1993, Eduardo K. Litonjua, Sr. and Aurelio J. Litonjua (Litonjuas, for brevity)
filed a Complaint 2 before the Regional Trial Court of Pasig against the Bank of America
NT&SA and Bank of America International, Ltd. (defendant banks for brevity) alleging
that: they were engaged in the shipping business; they owned two vessels: Don Aurelio
and El Champion, through their wholly-owned corporations; they deposited their
revenues from said business together with other funds with the branches of said banks in
the United Kingdom and Hongkong up to 1979; with their business doing well, the
defendant banks induced them to increase the number of their ships in operation,
offering them easy loans to acquire said vessels; 3thereafter, the defendant banks
acquired, through their (Litonjuas') corporations as the borrowers: (a) El Carrier 4 ; (b) El
General 5 ; (c) El Challenger 6 ; and (d) El Conqueror 7 ; the vessels were registered in
the names of their corporations; the operation and the funds derived therefrom were
placed under the complete and exclusive control and disposition of the BANK OF
AMERICAs; 8 and the possession of the vessels was also placed by defendant banks in
the hands of persons selected and designated by them (defendant banks). 9
The Litonjuas claimed that defendant banks as trustees did not fully render an account
of all the income derived from the operation of the vessels as well as of the proceeds of
the subsequent foreclosure sale; 10 because of the breach of their fiduciary duties
and/or negligence of the BANK OF AMERICAs and/or the persons designated by them
in the operation of private respondents' six vessels, the revenues derived from the
operation of all the vessels declined drastically; the loans acquired for the purchase of
the four additional vessels then matured and remained unpaid, prompting defendant
banks to have all the six vessels, including the two vessels originally owned by the
private respondents, foreclosed and sold at public auction to answer for the obligations
incurred for and in behalf of the operation of the vessels; they (Litonjuas) lost sizeable
amounts of their own personal funds equivalent to ten percent (10%) of the acquisition
cost of the four vessels and were left with the unpaid balance of their loans with
defendant banks. 11 The Litonjuas prayed for the accounting of the revenues derived in
the operation of the six vessels and of the proceeds of the sale thereof at the
foreclosure proceedings instituted by BANK OF AMERICAs; damages for breach of trust;
exemplary damages and attorney's fees. 12

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Defendant banks filed a Motion to Dismiss on grounds of forum non conveniens and
lack of cause of action against them. 13

equal to 10% of the acquisition costs of the vessels in question, their 10% however
represents their investments as stockholders in the foreign corporations. 20

On December 3, 1993, the trial court issued an Order denying the Motion to Dismiss,
thus:

Anent the second assigned error, BANK OF AMERICAs posit that while the application of
the principle of forum non conveniens is discretionary on the part of the Court, said
discretion is limited by the guidelines pertaining to the private as well as public interest
factors in determining whether plaintiffs' choice of forum should be disturbed, as
elucidated in Gulf Oil Corp. vs. Gilbert 21 and Piper Aircraft Co. vs. Reyno, 22 to wit:

"WHEREFORE, and in view of the foregoing consideration, the Motion to Dismiss is hereby
DENIED. The defendant is therefore, given a period of ten (10) days to file its Answer to
the complaint.
"SO ORDERED." 14
Instead of filing an answer the defendant banks went to the Court of Appeals on a
"Petition for Review on Certiorari" 15 which was aptly treated by the appellate court as a
petition for certiorari. They assailed the above-quoted order as well as the subsequent
denial of their Motion for Reconsideration. 16 The appellate court dismissed the petition
and denied BANK OF AMERICAs' Motion for Reconsideration. 17

"Private interest factors include: (a) the relative ease of access to sources of proof; (b)
the availability of compulsory process for the attendance of unwilling witnesses; (c) the
cost of obtaining attendance of willing witnesses; or (d) all other practical problems that
make trial of a case easy, expeditious and inexpensive. Public interest factors include:
(a) the administrative difficulties flowing from court congestion; (b) the local interest in
having localized controversies decided at home; (c) the avoidance of unnecessary
problems in conflict of laws or in the application of foreign law; or (d) the unfairness of
burdening citizens in an unrelated forum with jury duty." 23

Hence, herein petition anchored on the following grounds:

In support of their claim that the local court is not the proper forum, BANK OF AMERICAs
allege the following:

"1. RESPONDENT COURT OF APPEALS FAILED TO CONSIDER THE FACT THAT THE SEPARATE
PERSONALITIES OF THE PRIVATE RESPONDENTS (MERE STOCKHOLDERS) AND THE FOREIGN
CORPORATIONS (THE REAL BORROWERS) CLEARLY SUPPORT, BEYOND ANY DOUBT, THE
PROPOSITION THAT THE PRIVATE RESPONDENTS HAVE NO PERSONALITIES TO SUE.

"i) The Bank of America Branches involved, as clearly mentioned in the Complaint, are
based in Hongkong and England. As such, the evidence and the witnesses are not
readily available in the Philippines;

"2. THE RESPONDENT COURT OF APPEALS FAILED TO REALIZE THAT WHILE THE PRINCIPLE
OF FORUM NON CONVENIENS IS NOT MANDATORY, THERE ARE, HOWEVER, SOME
GUIDELINES TO FOLLOW IN DETERMINING WHETHER THE CHOICE OF FORUM SHOULD BE
DISTURBED. UNDER THE CIRCUMSTANCES SURROUNDING THE INSTANT CASE, DISMISSAL OF
THE COMPLAINT ON THE GROUND OF FORUM NON-CONVENIENS IS MORE APPROPRIATE
AND PROPER.
"3. THE PRINCIPLE OF RES JUDICATA IS NOT LIMITED TO FINAL JUDGMENT IN THE
PHILIPPINES. IN FACT, THE PENDENCY OF FOREIGN ACTION MAY BE THE LEGAL BASIS FOR
THE DISMISSAL OF THE COMPLAINT FILED BY THE PRIVATE RESPONDENT. COROLLARY TO
THIS, THE RESPONDENT COURT OF APPEALS FAILED TO CONSIDER THE FACT THAT PRIVATE
RESPONDENTS ARE GUILTY OF FORUM SHOPPING." 18
As to the first assigned error: BANK OF AMERICAs argue that the borrowers and the
registered owners of the vessels are the foreign corporations and not private
respondents Litonjuas who are mere stockholders; and that the revenues derived from
the operations of all the vessels are deposited in the accounts of the corporations.
Hence, BANK OF AMERICAs maintain that these foreign corporations are the legal
entities that have the personalities to sue and not herein private respondents; that
private respondents, being mere shareholders, have no claim on the vessels as owners
since they merely have an inchoate right to whatever may remain upon the dissolution
of the said foreign corporations and after all creditors have been fully paid and
satisfied; 19 and that while private respondents may have allegedly spent amounts

"ii) The loan transactions were obtained, perfected, performed, consummated and
partially paid outside the Philippines;
"iii) The monies were advanced outside the Philippines. Furthermore, the mortgaged
vessels were part of an offshore fleet, not based in the Philippines;
"iv) All the loans involved were granted to the Private Respondents'
foreign CORPORATIONS;
"v) The Restructuring Agreements were ALL governed by the laws of England;
"vi) The subsequent sales of the mortgaged vessels and the application of the sales
proceeds occurred and transpired outside the Philippines, and the deliveries of the sold
mortgaged vessels were likewise made outside the Philippines;
"vii) The revenues of the vessels and the proceeds of the sales of these vessels
were ALL deposited to the Accounts of the foreign CORPORATIONS abroad; and
"viii) Bank of America International Ltd. is not licensed nor engaged in trade or business
in the Philippines." 24

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BANK OF AMERICAs argue further that the loan agreements, security documentation
and all subsequent restructuring agreements uniformly, unconditionally and expressly
provided that they will be governed by the laws of England; 25 that Philippine Courts
would then have to apply English law in resolving whatever issues may be presented to
it in the event it recognizes and accepts herein case; that it would then be imposing a
significant and unnecessary expense and burden not only upon the parties to the
transaction but also to the local court. BANK OF AMERICAs insist that the inconvenience
and difficulty of applying English law with respect to a wholly foreign transaction in a
case pending in the Philippines may be avoided by its dismissal on the ground of forum
non conveniens. 26
Finally, BANK OF AMERICAs claim that private respondents have already waived their
alleged causes of action in the case at bar for their refusal to contest the foreign civil
cases earlier filed by the BANK OF AMERICAs against them in Hongkong and England,
to wit:

Philippine laws, aside from the said corporate borrowers being but their alter-egos, they
have interests of their own in the vessels. 29 Private respondents also argue that the
dismissal by the Court of Appeals of the petition forcertiorari was justified because there
was neither allegation nor any showing whatsoever by the BANK OF AMERICAs that they
had no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of
law from the Order of the trial judge denying their Motion to Dismiss; that the remedy
available to the BANK OF AMERICAs after their Motion to Dismiss was denied was to file
an Answer to the complaint; 30 that as upheld by the Court of Appeals, the decision of
the trial court in not applying the principle of forum non conveniens is in the lawful
exercise of its discretion. 31 Finally, private respondents aver that the statement of BANK
OF AMERICAs that the doctrine of res judicata also applies to foreign judgment is merely
an opinion advanced by them and not based on a categorical ruling of this
Court; 32 and that herein private respondents did not actually participate in the
proceedings in the foreign courts. 33
We deny the petition for lack of merit.

"1.) Civil action in England in its High Court of Justice, Queen's Bench Division
Commercial Court (1992-Folio No. 2098) against (a) LIBERIAN TRANSPORT NAVIGATION,
SA.; (b) ESHLEY COMPANIA NAVIERA SA., (c) EL CHALLENGER SA; (d) ESPRIONA SHIPPING
CO. SA; (e) PACIFIC NAVIGATORS CORP. SA; (f) EDDIE NAVIGATION CORP. SA; (g)
EDUARDO K. LITONJUA & (h) AURELIO K. LITONJUA.
"2.) Civil action in England in its High Court of Justice, Queen's Bench Division,
Commercial Court (1992-Folio No. 2245) against (a) EL CHALLENGER S.A., (b) ESPRIONA
SHIPPING COMPANY S.A., (c) EDUARDO KATIPUNAN LITONJUA and (d) AURELIO
KATIPUNAN LITONJUA.
"3.) Civil action in the Supreme Court of Hongkong High Court (Action No. 4039 of 1992),
against (a) ESHLEY COMPANIA NAVIERA S.A., (b) EL CHALLENGER S.A., (c) ESPRIONA
SHIPPING COMPANY S.A., (d) PACIFIC NAVIGATORS CORPORATION (e) EDDIE
NAVIGATION CORPORATION S.A., (f) LITONJUA CHARTERING (EDYSHIP) CO., INC., (g)
AURELIO KATIPUNAN LITONJUA, JR., and (h) EDUARDO KATIPUNAN LITONJUA.
"4.) A civil action in the Supreme Court of Hong Kong High Court (Action No. 4040 of
1992); against (a) ESHLEY COMPANIA NAVIERA S.A., (b) EL CHALLENGER S.A., (c)
ESPRIONA SHIPPING COMPANY S.A., (d) PACIFIC NAVIGATORS CORPORATION (e) EDDIE
NAVIGATION CORPORATION S.A., (f) LITONJUA CHARTERING (EDYSHIP) CO., INC., (g)
AURELIO KATIPUNAN LITONJUA, JR., and (h) EDUARDO KATIPUNAN LITONJUA."
and that private respondents' alleged cause of action is already barred by the
pendency of another action or by litis pendentia as shown above. 27
On the other hand, private respondents contend that certain material facts and
pleadings are omitted and/or misrepresented in the present petition for certiorari; that
the prefatory statement failed to state that part of the security of the foreign loans were
mortgages on a 39-hectare piece of real estate located in the Philippines; 28 that while
the complaint was filed only by the stockholders of the corporate borrowers, the latter
are wholly-owned by the private respondents who are Filipinos and therefore under

It is a well-settled rule that the order denying the motion to dismiss CANNOT be the
subject of petition for certiorari. BANK OF AMERICAs should have filed an answer to the
complaint, proceed to trial and await judgment before making an appeal. As
repeatedly held by this Court:
"An order denying a motion to dismiss is interlocutory and cannot be the subject of the
extraordinary petition forcertiorari or mandamus. The remedy of the aggrieved party is
to file an answer and to interpose as defenses the objections raised in his motion to
dismiss, proceed to trial, and in case of an adverse decision, to elevate the entire case
by appeal in due course. . . . Under certain situations, recourse
to certiorari or mandamus is considered appropriate, i.e., (a) when the trial court issued
the order without or in excess of jurisdiction; (b) where there is patent grave abuse of
discretion by the trial court; or (c) appeal would not prove to be a speedy and
adequate remedy as when an appeal would not promptly relieve a defendant from
the injurious effects of the patently mistaken order maintaining the plaintiff's baseless
action and compelling the defendant needlessly to go through a protracted trial and
clogging the court dockets by another futile case." 34
Records show that the trial court acted within its jurisdiction when it issued the assailed
Order denying BANK OF AMERICAs' motion to dismiss. Does the denial of the motion to
dismiss constitute a patent grave abuse of discretion? Would appeal, under the
circumstances, not prove to be a speedy and adequate remedy? We will resolve said
questions in conjunction with the issues raised by the parties.
First issue. Did the trial court commit grave abuse of discretion in refusing to dismiss the
complaint on the ground that plaintiffs have no cause of action against defendants
since plaintiffs are merely stockholders of the corporations which are the registered
owners of the vessels and the borrowers of BANK OF AMERICAs?
No. BANK OF AMERICAs' argument that private respondents, being mere stockholders of
the foreign corporations, have no personalities to sue, and therefore, the complaint

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should be dismissed, is untenable. A case is dismissible for lack of personality to sue upon
proof that the plaintiff is not the real party-in-interest. Lack of personality to sue can be
used as a ground for a Motion to Dismiss based on the fact that the complaint, on the
face thereof, evidently states no cause of action.35 In San Lorenzo Village Association,
Inc. vs. Court of Appeals, 36 this Court clarified that a complaint states a cause of action
where it contains three essential elements of a cause of action, namely: (1) the legal
right of the plaintiff, (2) the correlative obligation of the defendant, and (3) the act or
omission of the defendant in violation of said legal right. If these elements are absent,
the complaint becomes vulnerable to a motion to dismiss on the ground of failure to
state a cause of action. 37 To emphasize, it is not the lack or absence of cause of action
that is a ground for dismissal of the complaint but rather the fact that the complaint
states NO cause of action. 38 "Failure to state a cause of action" refers to the
insufficiency of allegation in the pleading, unlike "lack of cause of action" which refers
to the insufficiency of factual basis for the action. "Failure to state a cause of action"
may be raised at the earliest stages of an action through a motion to dismiss the
complaint, while "lack of cause of action" may be raised any time after the questions of
fact have been resolved on the basis of stipulations, admissions or evidence
presented. 39
In the case at bar, the complaint contains the three elements of a cause of action. It
alleges that: (1) plaintiffs, herein private respondents, have the right to demand for an
accounting from defendants (herein BANK OF AMERICAs), as trustees by reason of the
fiduciary relationship that was created between the parties involving the vessels in
question; (2) BANK OF AMERICAs have the obligation, as trustees, to render such an
accounting; and (3) BANK OF AMERICAs failed to do the same.
BANK OF AMERICAs insist that they do not have any obligation to the private
respondents as they are mere stockholders of the corporation; that the corporate
entities have juridical personalities separate and distinct from those of the private
respondents. Private respondents maintain that the corporations are wholly owned by
them and prior to the incorporation of such entities, they were clients of BANK OF
AMERICAs which induced them to acquire loans from said BANK OF AMERICAs to invest
on the additional ships.
We agree with private respondents. As held in the San Lorenzo case, 40
". . . assuming that the allegation of facts constituting plaintiffs' cause of action is not as
clear and categorical as would otherwise be desired, any uncertainty thereby arising
should be so resolved as to enable a full inquiry into the merits of the action."
As this Court has explained in the San Lorenzo case, such a course, would preclude
multiplicity of suits which the law abhors, and conduce to the definitive determination
and termination of the dispute. To do otherwise, that is, to abort the action on account
of the alleged fatal flaws of the complaint would obviously be indecisive and would not
end the controversy, since the institution of another action upon a revised complaint
would not be foreclosed. 41

Second Issue. Should the complaint be dismissed on the ground of forum nonconveniens?
No. The doctrine of forum non-conveniens, literally meaning 'the forum is inconvenient',
emerged in private international law to deter the practice of global forum
shopping, 42 that is to prevent non-resident litigants from choosing the forum or place
wherein to bring their suit for malicious reasons, such as to secure procedural
advantages, to annoy and harass the defendant, to avoid overcrowded dockets, or to
select a more friendly venue. Under this doctrine, a court, in conflicts of law cases, may
refuse impositions on its jurisdiction where it is not the most "convenient" or available
forum and the parties are not precluded from seeking remedies elsewhere. 43
Whether a suit should be entertained or dismissed on the basis of said doctrine depends
largely upon the facts of the particular case and is addressed to the sound discretion of
the trial court. 44 In the case of Communication Materials and Design, Inc. vs. Court of
Appeals, 45 this Court held that ". . . [a] Philippine Court may assume jurisdiction over the
case if it chooses to do so; provided, that the following requisites are met: (1) that the
Philippine Court is one to which the parties may conveniently resort to; (2) that the
Philippine Court is in a position to make an intelligent decision as to the law and the
facts; and, (3) that the Philippine Court has or is likely to have power to enforce its
decision." 46 Evidently, all these requisites are present in the instant case.
Moreover, this Court enunciated in Philsec. Investment Corporation vs. Court of
Appeals, 47 that the doctrine of forum non conveniens should not be used as a ground
for a motion to dismiss because Sec. 1, Rule 16 of the Rules of Court does not include
said doctrine as a ground. This Court further ruled that while it is within the discretion of
the trial court to abstain from assuming jurisdiction on this ground, it should do so only
after vital facts are established, to determine whether special circumstances require the
court's desistance; and that the propriety of dismissing a case based on this principle
of forum non conveniens requires a factual determination, hence it is more properly
considered a matter of defense. 48
Third issue. Are private respondents guilty of forum shopping because of the pendency
of foreign action?
No. Forum shopping exists where the elements of litis pendentia are present and where
a final judgment in one case will amount to res judicata in the other. 49 Parenthetically,
for litis pendentia to be a ground for the dismissal of an action there must be: (a) identity
of the parties or at least such as to represent the same interest in both actions; (b)
identity of rights asserted and relief prayed for, the relief being founded on the same
acts; and (c) the identity in the two cases should be such that the judgment which may
be rendered in one would, regardless of which party is successful, amount to res
judicata in the other. 50
In case at bar, not all the requirements for litis pendentia are present. While there may
be identity of parties, notwithstanding the presence of other respondents, 51 as well as
the reversal in positions of plaintiffs and defendants 52 , still the other requirements
necessary for litis pendentia were not shown by BANK OF AMERICA. It merely mentioned

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that civil cases were filed in Hongkong and England without however showing the
identity of rights asserted and the reliefs sought for as well as the presence of the
elements of res judicata should one of the cases be adjudged.
As the Court of Appeals aptly observed:
. . . [T]he BANK OF AMERICAs, by simply enumerating the civil actions instituted abroad
involving the parties herein . . ., failed to provide this Court with relevant and clear
specifications that would show the presence of the above-quoted elements or
requisites for res judicata. While it is true that the BANK OF AMERICAs in their motion for
reconsideration (CA Rollo, p. 72), after enumerating the various civil actions instituted
abroad, did aver that "Copies of the foreign judgments are hereto attached and made
integral parts hereof as Annexes 'B', 'C', 'D' and `E'", they failed, wittingly or inadvertently,
to include a single foreign judgment in their pleadings submitted to this Court as
annexes to their petition. How then could We have been expected to rule on this issue
even if We were to hold that foreign judgments could be the basis for the application of
the aforementioned principle of res judicata? 53
Consequently, both courts correctly denied the dismissal of herein subject complaint.

The Facts
Petitioner EDI is a corporation engaged in recruitment and placement of Overseas
Filipino Workers (OFWs). 5 ESI is another recruitment agency which collaborated with EDI
to process the documentation and deployment of private respondent to Saudi Arabia.
Private respondent Gran was an OFW recruited by EDI, and deployed by ESI to work for
OAB, in Riyadh, Kingdom of Saudi Arabia. 6
It appears that OAB asked EDI through its October 3, 1993 letter for curricula vitae of
qualified applicants for the position of "Computer Specialist." 7 In a facsimile transmission
dated November 29, 1993, OAB informed EDI that, from the applicants'curricula
vitae submitted to it for evaluation, it selected Gran for the position of "Computer
Specialist." The faxed letter also stated that if Gran agrees to the terms and conditions of
employment contained in it, one of which was a monthly salary of SR (Saudi Riyal)
2,250.00 (USD 600.00), EDI may arrange for Gran's immediate dispatch. 8
After accepting OAB's offer of employment, Gran signed an employment
contract 9 that granted him a monthly salary of USD 850.00 for a period of two years.
Gran was then deployed to Riyadh, Kingdom of Saudi Arabia on February 7, 1994.

WHEREFORE, the petition is DENIED for lack of merit.

Costs against BANK OF AMERICAs. TIcEDC
SO ORDERED.
SECOND DIVISION
[G.R. No. 145587. October 26, 2007.]
26. EDI-STAFFBUILDERS INTERNATIONAL, INC., petitioner, vs. NATIONAL LABOR RELATIONS
COMMISSION and ELEAZAR S. GRAN, respondents.
DECISION
VELASCO, JR., J p:
The Case
This Petition for Review on Certiorari 1 seeks to set aside the October 18, 2000
Decision 2 of the Court of Appeals (CA) in CA-G.R. SP No. 56120 which affirmed the
January 15, 1999 Decision 3 and September 30, 1999 Resolution 4 rendered by the
National Labor Relations Commission (NLRC) (Third Division) in POEA ADJ (L) 94-06-2194,
ordering Expertise Search International (ESI), EDI-Staffbuilders International, Inc. (EDI),
and Omar Ahmed Ali Bin Bechr Est. (OAB) jointly and severally to pay Eleazar S. Gran
(Gran) the amount of USD 16,150.00 as unpaid salaries.

Upon arrival in Riyadh, Gran questioned the discrepancy in his monthly salary his
employment contract stated USD 850.00; while his Philippine Overseas Employment
Agency (POEA) Information Sheet indicated USD 600.00 only. However, through the
assistance of the EDI office in Riyadh, OAB agreed to pay Gran USD 850.00 a month. 10
After Gran had been working for about five months for OAB, his employment was
terminated through OAB's July 9, 1994 letter, 11 on the following grounds:
1. Non-compliance to contract requirements by the recruitment agency primarily on
your salary and contract duration.
2. Non-compliance to pre-qualification requirements by the recruitment agency[,] vide
OAB letter ref. F-5751-93, dated October 3, 1993. 12
3. Insubordination or disobedience to Top Management Order and/or instructions (nonsubmittal of daily activity reports despite several instructions).
On July 11, 1994, Gran received from OAB the total amount of SR 2,948.00 representing
his final pay, and on the same day, he executed a Declaration 13 releasing OAB from
any financial obligation or otherwise, towards him.
After his arrival in the Philippines, Gran instituted a complaint, on July 21, 1994, against
ESI/EDI, OAB, Country Bankers Insurance Corporation, and Western Guaranty
Corporation with the NLRC, National Capital Region, Quezon City, which was docketed
as POEA ADJ (L) 94-06-2194 for underpayment of wages/salaries and illegal dismissal.

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The Ruling of the Labor Arbiter

In his February 10, 1998 Decision, 14 Labor Arbiter Manuel R. Caday, to whom Gran's
case was assigned, ruled that there was neither underpayment nor illegal
dismissal. ICDcEA
The Labor Arbiter reasoned that there was no underpayment of salaries since according
to the POEA-Overseas Contract Worker (OCW) Information Sheet, Gran's monthly salary
was USD 600.00, and in his Confirmation of Appointment as Computer Specialist, his
monthly basic salary was fixed at SR 2,500.00, which was equivalent to USD 600.00.
Arbiter Caday also cited the Declaration executed by Gran, to justify that Gran had no
claim for unpaid salaries or wages against OAB.
With regard to the issue of illegal dismissal, the Labor Arbiter found that Gran failed to
refute EDI's allegations; namely, (1) that Gran did not submit a single activity report of his
daily activity as dictated by company policy; (2) that he was not qualified for the job as
computer specialist due to his insufficient knowledge in programming and lack of
knowledge in ACAD system; (3) that Gran refused to follow management's instruction
for him to gain more knowledge of the job to prove his worth as computer specialist; (4)
that Gran's employment contract had never been substituted; (5) and that Gran was
paid a monthly salary of USD 850.00, and USD 350.00 monthly as food allowance.
Accordingly, the Labor Arbiter decided that Gran was validly dismissed from his work
due to insubordination, disobedience, and his failure to submit daily activity reports.
Thus, on February 10, 1998, Arbiter Caday dismissed Gran's complaint for lack of merit.
Dissatisfied, Gran filed an Appeal 15 on April 6, 1998 with the NLRC, Third Division.
However, it appears from the records that Gran failed to furnish EDI with a copy of his
Appeal Memorandum. SETAcC
The Ruling of the NLRC
The NLRC held that EDI's seemingly harmless transfer of Gran's contract to ESI is actually
"reprocessing," which is a prohibited transaction under Article 34 (b) of the Labor Code.
This scheme constituted misrepresentation through the conspiracy between EDI and ESI
in misleading Gran and even POEA of the actual terms and conditions of the OFW's
employment. In addition, it was found that Gran did not commit any act that
constituted a legal ground for dismissal. The alleged non-compliance with contractual
stipulations relating to Gran's salary and contract duration, and the absence of prequalification requirements cannot be attributed to Gran but to EDI, which dealt directly
with OAB. In addition, the charge of insubordination was not substantiated, and Gran
was not even afforded the required notice and investigation on his alleged offenses.
Thus, the NLRC reversed the Labor Arbiter's Decision and rendered a new one, the
dispositive portion of which reads:

WHEREFORE, the assailed decision is SET ASIDE. Respondents Expertise Search

International, Inc., EDI Staffbuilders Int'l., Inc. and Omar Ahmed Ali Bin Bechr Est. (OAB)
are hereby ordered jointly and severally liable to pay the complainant Eleazar Gran the
Philippine peso equivalent at the time of actual payment of SIXTEEN THOUSAND ONE
HUNDRED FIFTY US DOLLARS (US$16,150.00) representing his salaries for the unexpired
portion of his contract.
SO ORDERED. 16
Gran then filed a Motion for Execution of Judgment 17 on March 29, 1999 with the NLRC
and petitioner receiving a copy of this motion on the same date. 18
To prevent the execution, petitioner filed an Opposition 19 to Gran's motion arguing that
the Writ of Execution cannot issue because it was not notified of the appellate
proceedings before the NLRC and was not given a copy of the memorandum of
appeal nor any opportunity to participate in the appeal.
Seeing that the NLRC did not act on Gran's motion after EDI had filed its Opposition,
petitioner filed, on August 26, 1999, a Motion for Reconsideration of the NLRC Decision
after receiving a copy of the Decision on August 16, 1999. 20
The NLRC then issued a Resolution 21 denying petitioner's Motion for Reconsideration,
ratiocinating that the issues and arguments raised in the motion "had already been
amply discussed, considered, and ruled upon" in the Decision, and that there was "no
cogent reason or patent or palpable error that warrant any disturbance thereof."
Unconvinced of the NLRC's reasoning, EDI filed a Petition for Certiorari before the CA.
Petitioner claimed in its petition that the NLRC committed grave abuse of discretion in
giving due course to the appeal despite Gran's failure to perfect the appeal.
The Ruling of the Court of Appeals
The CA subsequently ruled on the procedural and substantive issues of EDI's
petition. CIDTcH
On the procedural issue, the appellate court held that "Gran's failure to furnish a copy of
his appeal memorandum [to EDI was] a mere formal lapse, an excusable neglect and
not a jurisdictional defect which would justify the dismissal of his appeal."22 The court
also held that petitioner EDI failed to prove that private respondent was terminated for
a valid cause and in accordance with due process; and that Gran's Declaration
releasing OAB from any monetary obligation had no force and effect. The appellate
court ratiocinated that EDI had the burden of proving Gran's incompetence; however,
other than the termination letter, no evidence was presented to show how and why
Gran was considered to be incompetent. The court held that since the law requires the
recruitment agencies to subject OFWs to trade tests before deployment, Gran must
have been competent and qualified; otherwise, he would not have been hired and
deployed abroad.

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As for the charge of insubordination and disobedience due to Gran's failure to submit a
"Daily Activity Report," the appellate court found that EDI failed to show that the
submission of the "Daily Activity Report" was a part of Gran's duty or the company's
policy. The court also held that even if Gran was guilty of insubordination, he should
have just been suspended or reprimanded, but not dismissed.

The petition lacks merit except with respect to Gran's failure to furnish EDI with his
Appeal Memorandum filed with the NLRC.

The CA also held that Gran was not afforded due process, given that OAB did not abide
by the twin notice requirement. The court found that Gran was terminated on the same
day he received the termination letter, without having been apprised of the bases of his
dismissal or afforded an opportunity to explain his side.

Petitioner EDI claims that Gran's failure to furnish it a copy of the Appeal Memorandum
constitutes a jurisdictional defect and a deprivation of due process that would warrant
a rejection of the appeal.

Finally, the CA held that the Declaration signed by Gran did not bar him from
demanding benefits to which he was entitled. The appellate court found that the
Declaration was in the form of a quitclaim, and as such is frowned upon as contrary to
public policy especially where the monetary consideration given in the Declaration was
very much less than what he was legally entitled to his backwages amounting to USD
16,150.00.
As a result of these findings, on October 18, 2000, the appellate court denied the
petition to set aside the NLRC Decision.
Hence, this instant petition is before the Court.
The Issues

First Issue: NLRC's Duty is to Require Respondent to Provide

Petitioner a Copy of the Appeal

This position is devoid of merit.

In a catena of cases, it was ruled that failure of appellant to furnish a copy of the appeal
to the adverse party is not fatal to the appeal.
In Estrada v. National Labor Relations Commission, 24 this Court set aside the order of
the NLRC which dismissed an appeal on the sole ground that the appellant did not
furnish the appellee a memorandum of appeal contrary to the requirements of Article
223 of the New Labor Code and Section 9, Rule XIII of its Implementing Rules and
Regulations. SEHaTC
Also, in J.D. Magpayo Customs Brokerage Corp. v. NLRC, the order of dismissal of an
appeal to the NLRC based on the ground that "there is no showing whatsoever that a
copy of the appeal was served by the appellant on the appellee" 25 was annulled. The
Court ratiocinated as follows:

Petitioner raises the following issues for our consideration:

I. WHETHER THE FAILURE OF GRAN TO FURNISH A COPY OF HIS APPEAL MEMORANDUM TO
PETITIONER EDI WOULD CONSTITUTE A JURISDICTIONAL DEFECT AND A DEPRIVATION OF
PETITIONER EDI'S RIGHT TO DUE PROCESS AS WOULD JUSTIFY THE DISMISSAL OF GRAN'S
APPEAL.
II. WHETHER PETITIONER EDI HAS ESTABLISHED BY WAY OF SUBSTANTIAL EVIDENCE THAT
GRAN'S TERMINATION WAS JUSTIFIABLE BY REASON OF INCOMPETENCE. COROLLARY
HERETO, WHETHER THE PRIETO VS. NLRC RULING, AS APPLIED BY THE COURT OF APPEALS,
IS APPLICABLE IN THE INSTANT CASE.
III. WHETHER PETITIONER HAS ESTABLISHED BY WAY OF SUBSTANTIAL EVIDENCE THAT
GRAN'S TERMINATION WAS JUSTIFIABLE BY REASON OF INSUBORDINATION AND
DISOBEDIENCE.
IV. WHETHER GRAN WAS AFFORDED DUE PROCESS PRIOR TO TERMINATION.
V. WHETHER GRAN IS ENTITLED TO BACKWAGES FOR THE UNEXPIRED PORTION OF HIS
CONTRACT. 23

The failure to give a copy of the appeal to the adverse party was a mere formal lapse,
an excusable neglect. Time and again We have acted on petitions to review decisions
of the Court of Appeals even in the absence of proof of service of a copy thereof to the
Court of Appeals as required by Section 1 of Rule 45, Rules of Court. We act on the
petitions and simply require the petitioners to comply with the rule. 26 (Emphasis
supplied.)
The J.D. Magpayo ruling was reiterated in Carnation Philippines Employees Labor UnionFFW v. National Labor Relations Commission, 27 Pagdonsalan v. NLRC, 28 and in Sunrise
Manning Agency, Inc. v. NLRC. 29
Thus, the doctrine that evolved from these cases is that failure to furnish the adverse
party with a copy of the appeal is treated only as a formal lapse, an excusable neglect,
and hence, not a jurisdictional defect. Accordingly, in such a situation, the appeal
should not be dismissed; however, it should not be given due course either. As
enunciated in J.D. Magpayo, the duty that is imposed on the NLRC, in such a case, is to
require the appellant to comply with the rule that the opposing party should be
provided with a copy of the appeal memorandum.

The Court's Ruling

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While Gran's failure to furnish EDI with a copy of the Appeal Memorandum is excusable,
the abject failure of the NLRC to order Gran to furnish EDI with the Appeal
Memorandum constitutes grave abuse of discretion.
The records reveal that the NLRC discovered that Gran failed to furnish EDI a copy of
the Appeal Memorandum. The NLRC then ordered Gran to present proof of service. In
compliance with the order, Gran submitted a copy of Camp Crame Post Office's list of
mail/parcels sent on April 7, 1998. 30 The post office's list shows that private respondent
Gran sent two pieces of mail on the same date: one addressed to a certain Dan O. de
Guzman of Legaspi Village, Makati; and the other appears to be addressed to Neil B.
Garcia (or Gran), 31 of Ermita, Manila both of whom are not connected with
petitioner.
This mailing list, however, is not a conclusive proof that EDI indeed received a copy of
the Appeal Memorandum.
Sec. 5 of the NLRC Rules of Procedure (1990) provides for the proof and completeness
of service in proceedings before the NLRC:
Section 5. 32 Proof and completeness of service. The return is prima facie proof of the
facts indicated therein.Service by registered mail is complete upon receipt by the
addressee or his agent; but if the addressee fails to claim his mail from the post office
within five (5) days from the date of first notice of the postmaster, service shall take
effect after such time. (Emphasis supplied.)
Hence, if the service is done through registered mail, it is only deemed complete when
the addressee or his agent received the mail or after five (5) days from the date of first
notice of the postmaster. However, the NLRC Rules do not state what would constitute
proper proof of service.
Sec. 13, Rule 13 of the Rules of Court, provides for proofs of service: AHacIS
Section 13. Proof of service. Proof of personal service shall consist of a written
admission of the party served or the official return of the server, or the affidavit of the
party serving, containing a full statement of the date, place and manner of service. If
the service is by ordinary mail, proof thereof shall consist of an affidavit of the person
mailing of facts showing compliance with section 7 of this Rule. If service is made by
registered mail, proof shall be made by such affidavit and registry receipt issued by the
mailing office. The registry return card shall be filed immediately upon its receipt by the
sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of
the notice given by the postmaster to the addressee (emphasis supplied).
Based on the foregoing provision, it is obvious that the list submitted by Gran is not
conclusive proof that he had served a copy of his appeal memorandum to EDI, nor is it
conclusive proof that EDI received its copy of the Appeal Memorandum. He should
have submitted an affidavit proving that he mailed the Appeal Memorandum together
with the registry receipt issued by the post office; afterwards, Gran should have
immediately filed the registry return card.

Hence, after seeing that Gran failed to attach the proof of service, the NLRC should not
have simply accepted the post office's list of mail and parcels sent; but it should have
required Gran to properly furnish the opposing parties with copies of his Appeal
Memorandum as prescribed in J.D. Magpayo and the other cases. The NLRC should not
have proceeded with the adjudication of the case, as this constitutes grave abuse of
discretion.
The glaring failure of NLRC to ensure that Gran should have furnished petitioner EDI a
copy of the Appeal Memorandum before rendering judgment reversing the dismissal of
Gran's complaint constitutes an evasion of the pertinent NLRC Rules and established
jurisprudence. Worse, this failure deprived EDI of procedural due process guaranteed by
the Constitution which can serve as basis for the nullification of proceedings in the
appeal before the NLRC. One can only surmise the shock and dismay that OAB, EDI,
and ESI experienced when they thought that the dismissal of Gran's complaint became
final, only to receive a copy of Gran's Motion for Execution of Judgment which also
informed them that Gran had obtained a favorable NLRC Decision. This is not level
playing field and absolutely unfair and discriminatory against the employer and the job
recruiters. The rights of the employers to procedural due process cannot be cavalierly
disregarded for they too have rights assured under the Constitution.
However, instead of annulling the dispositions of the NLRC and remanding the case for
further proceedings we will resolve the petition based on the records before us to avoid
a protracted litigation. 33
The second and third issues have a common matter whether there was just cause for
Gran's dismissal hence, they will be discussed jointly.
Second and Third Issues: Whether Gran's dismissal is justifiable
by reason of incompetence, insubordination, and disobedience
In cases involving OFWs, the rights and obligations among and between the OFW, the
local recruiter/agent, and the foreign employer/principal are governed by the
employment contract. A contract freely entered into is considered law between the
parties; and hence, should be respected. In formulating the contract, the parties may
establish such stipulations, clauses, terms and conditions as they may deem convenient,
provided they are not contrary to law, morals, good customs, public order, or public
policy. 34 HAaDcS
In the present case, the employment contract signed by Gran specifically states that
Saudi Labor Laws will govern matters not provided for in the contract (e.g. specific
causes for termination, termination procedures, etc.). Being the law intended by the
parties (lex loci intentiones) to apply to the contract, Saudi Labor Laws should govern all
matters relating to the termination of the employment of Gran.
In international law, the party who wants to have a foreign law applied to a dispute or
case has the burden of PROVING the foreign law. The foreign law is treated as a
question of fact to be properly pleaded and proved as the judge or labor arbiter cannot

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take judicial notice of a foreign law. He is presumed to know only domestic or forum
law. 35

second is an unsigned April 11, 1995 letter 44 from OAB addressed to EDI and ESI, which
outlined the reasons why OAB had terminated Gran's employment.

Unfortunately for petitioner, it did not prove the pertinent Saudi laws on the matter; thus,
the International Law doctrine ofpresumed-identity approach or processual
presumption comes into play. 36 Where a foreign law is not pleaded or, even if
pleaded, is not proved, the presumption is that foreign law is the same as ours. 37 Thus,
we apply Philippine labor laws in determining the issues presented before us.

Petitioner claims that Gran was incompetent for the Computer Specialist position
because he had "insufficient knowledge in programming and zero knowledge of [the]
ACAD system." 45 Petitioner also claims that Gran was justifiably dismissed due to
insubordination or disobedience because he continually failed to submit the required
"Daily Activity Reports." 46 However, other than the abovementioned letters, no other
evidence was presented to show how and why Gran was considered incompetent,
insubordinate, or disobedient. Petitioner EDI had clearly failed to overcome the burden
of proving that Gran was validly dismissed.

Petitioner EDI claims that it had proven that Gran was legally dismissed due to
incompetence and insubordination or disobedience.
This claim has no merit.
In illegal dismissal cases, it has been established by Philippine law and jurisprudence that
the employer should prove that the dismissal of employees or personnel is legal and
just.
Section 33 of Article 277 of the Labor Code 38 states that:
ART. 277. MISCELLANEOUS PROVISIONS 39
(b) Subject to the constitutional right of workers to security of tenure and their right to be
protected against dismissal except for a just and authorized cause and without
prejudice to the requirement of notice under Article 283 of this Code, the employer shall
furnish the worker whose employment is sought to be terminated a written notice
containing a statement of the causes for termination and shall afford the latter ample
opportunity to be heard and to defend himself with the assistance of his representative
if he so desires in accordance with company rules and regulations promulgated
pursuant to guidelines set by the Department of Labor and Employment. Any decision
taken by the employer shall be without prejudice to the right of the workers to contest
the validity or legality of his dismissal by filing a complaint with the regional branch of
the National Labor Relations Commission. The burden of proving that the termination
was for a valid or authorized cause shall rest on the employer. . . .
In many cases, it has been held that in termination disputes or illegal dismissal cases, the
employer has the burden of proving that the dismissal is for just and valid causes; and
failure to do so would necessarily mean that the dismissal was not justified and therefore
illegal. 40 Taking into account the character of the charges and the penalty meted to
an employee, the employer is bound to adduce clear, accurate, consistent, and
convincing evidence to prove that the dismissal is valid and legal. 41 This is consistent
with the principle of security of tenure as guaranteed by the Constitution and reinforced
by Article 277 (b) of the Labor Code of the Philippines. 42 aEAIDH
In the instant case, petitioner claims that private respondent Gran was validly dismissed
for just cause, due to incompetence and insubordination or disobedience. To prove its
allegations, EDI submitted two letters as evidence. The first is the July 9, 1994 termination
letter, 43 addressed to Gran, from Andrea E. Nicolaou, Managing Director of OAB. The

Petitioner's imputation of incompetence on private respondent due to his "insufficient

knowledge in programming and zero knowledge of the ACAD system" based only on
the above mentioned letters, without any other evidence, cannot be given credence.
An allegation of incompetence should have a factual foundation. Incompetence may
be shown by weighing it against a standard, benchmark, or criterion. However, EDI
failed to establish any such bases to show how petitioner found Gran incompetent.
In addition, the elements that must concur for the charge of insubordination or willful
disobedience to prosper were not present.
In Micro Sales Operation Network v. NLRC, we held that:
For willful disobedience to be a valid cause for dismissal, the following twin elements
must concur: (1) the employee's assailed conduct must have been willful, that is,
characterized by a wrongful and perverse attitude; and (2) the order violated must
have been reasonable, lawful, made known to the employee and must pertain to the
duties which he had been engaged to discharge. 47
EDI failed to discharge the burden of proving Gran's insubordination or willful
disobedience. As indicated by the second requirement provided for in Micro Sales
Operation Network, in order to justify willful disobedience, we must determine whether
the order violated by the employee is reasonable, lawful, made known to the
employee, and pertains to the duties which he had been engaged to discharge. In the
case at bar, petitioner failed to show that the order of the company which was violated
the submission of "Daily Activity Reports" was part of Gran's duties as a Computer
Specialist. Before the Labor Arbiter, EDI should have provided a copy of the company
policy, Gran's job description, or any other document that would show that the "Daily
Activity Reports" were required for submission by the employees, more particularly by a
Computer Specialist.
Even though EDI and/or ESI were merely the local employment or recruitment agencies
and not the foreign employer, they should have adduced additional evidence to
convincingly show that Gran's employment was validly and legally terminated. The
burden devolves not only upon the foreign-based employer but also on the
employment or recruitment agency for the latter is not only an agent of the former, but

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is also solidarily liable with the foreign principal for any claims or liabilities arising from the
dismissal of the worker. 48 aTADCE
Thus, petitioner failed to prove that Gran was justifiably dismissed due to incompetence,
insubordination, or willful disobedience.
Petitioner also raised the issue that Prieto v. NLRC, 49 as used by the CA in its Decision, is
not applicable to the present case.
In Prieto, this Court ruled that "[i]t is presumed that before their deployment, the
petitioners were subjected to trade tests required by law to be conducted by the
recruiting agency to insure employment of only technically qualified workers for the
foreign principal." 50 The CA, using the ruling in the said case, ruled that Gran must have
passed the test; otherwise, he would not have been hired. Therefore, EDI was at fault
when it deployed Gran who was allegedly "incompetent" for the job.
According to petitioner, the Prieto ruling is not applicable because in the case at hand,
Gran misrepresented himself in hiscurriculum vitae as a Computer Specialist; thus, he
was not qualified for the job for which he was hired.
We disagree.
The CA is correct in applying Prieto. The purpose of the required trade test is to weed
out incompetent applicants from the pool of available workers. It is supposed to reveal
applicants with false educational backgrounds, and expose bogus qualifications. Since
EDI deployed Gran to Riyadh, it can be presumed that Gran had passed the required
trade test and that Gran is qualified for the job. Even if there was no objective trade test
done by EDI, it was still EDI's responsibility to subject Gran to a trade test; and its failure to
do so only weakened its position but should not in any way prejudice Gran. In any case,
the issue is rendered moot and academic because Gran's incompetency is unproved.
Fourth Issue: Gran was not Afforded Due Process
As discussed earlier, in the absence of proof of Saudi laws, Philippine Labor laws and
regulations shall govern the relationship between Gran and EDI. Thus, our laws and rules
on the requisites of due process relating to termination of employment shall apply.

Procedurally, (1) if the dismissal is based on a just cause under Article 282, the employer
must give the employee two written notices and a hearing or opportunity to be heard if
requested by the employee before terminating the employment: a notice specifying
the grounds for which dismissal is sought a hearing or an opportunity to be heard and
after hearing or opportunity to be heard, a notice of the decision to dismiss; and (2) if
the dismissal is based on authorized causes under Articles 283 and 284, the employer
must give the employee and the Department of Labor and Employment written notices
30 days prior to the effectivity of his separation. EAHcCT
Under the twin notice requirement, the employees must be given two (2) notices before
their employment could be terminated: (1) a first notice to apprise the employees of
their fault, and (2) a second notice to communicate to the employees that their
employment is being terminated. In between the first and second notice, the
employees should be given a hearing or opportunity to defend themselves personally or
by counsel of their choice. 55
A careful examination of the records revealed that, indeed, OAB's manner of dismissing
Gran fell short of the two notice requirement. While it furnished Gran the written notice
informing him of his dismissal, it failed to furnish Gran the written notice apprising him of
the charges against him, as prescribed by the Labor Code. 56 Consequently, he was
denied the opportunity to respond to said notice. In addition, OAB did not schedule a
hearing or conference with Gran to defend himself and adduce evidence in support of
his defenses. Moreover, the July 9, 1994 termination letter was effective on the same
day. This shows that OAB had already condemned Gran to dismissal, even before Gran
was furnished the termination letter. It should also be pointed out that OAB failed to give
Gran the chance to be heard and to defend himself with the assistance of a
representative in accordance with Article 277 of the Labor Code. Clearly, there was no
intention to provide Gran with due process. Summing up, Gran was notified and his
employment arbitrarily terminated on the same day, through the same letter, and for
unjustified grounds. Obviously, Gran was not afforded due process.
Pursuant to the doctrine laid down in Agabon, 57 an employer is liable to pay nominal
damages as indemnity for violating the employee's right to statutory due process. Since
OAB was in breach of the due process requirements under the Labor Code and its
regulations, OAB, ESI, and EDI, jointly and solidarily, are liable to Gran in the amount of
PhP30,000.00 as indemnity.
Fifth and Last Issue: Gran is Entitled to Backwages

Petitioner EDI claims that private respondent Gran was afforded due process, since he
was allowed to work and improve his capabilities for five months prior to his
termination. 51 EDI also claims that the requirements of due process, as enunciated
inSantos Jr. v. NLRC, 52 and Malaya Shipping Services, Inc. v. NLRC, 53 cited by the CA
in its Decision, were properly observed in the present case.
This position is untenable.
In Agabon v. NLRC, 54 this Court held that:

We reiterate the rule that with regard to employees hired for a fixed period of
employment, in cases arising before the effectivity of R.A. No. 8042 58 (Migrant Workers
and Overseas Filipinos Act) on August 25, 1995, that when the contract is for a fixed term
and the employees are dismissed without just cause, they are entitled to the payment
of their salaries corresponding to the unexpired portion of their contract. 59 On the other
hand, for cases arising after the effectivity of R.A. No. 8042, when the termination of
employment is without just, valid or authorized cause as defined by law or contract, the
worker shall be entitled to the full reimbursement of his placement fee with interest of
twelve percent (12%) per annum, plus his salaries for the unexpired portion of his

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employment contract or for three (3) months for every year of the unexpired term
whichever is less. 60
In the present case, the employment contract provides that the employment contract
shall be valid for a period of two (2) years from the date the employee starts to work
with the employer. 61 Gran arrived in Riyadh, Saudi Arabia and started to work on
February 7, 1994; 62 hence, his employment contract is until February 7, 1996. Since he
was illegally dismissed on July 9, 1994, before the effectivity of R.A. No. 8042, he is
therefore entitled to backwages corresponding to the unexpired portion of his contract,
which was equivalent to USD 16,150.
Petitioner EDI questions the legality of the award of backwages and mainly relies on the
Declaration which is claimed to have been freely and voluntarily executed by Gran.
The relevant portions of the Declaration are as follows: aEDCAH
I, ELEAZAR GRAN (COMPUTER SPECIALIST) AFTER RECEIVING MY FINAL SETTLEMENT ON
THIS DATE THE AMOUNT OF:
S.R. 2,948.00 (SAUDI RIYALS TWO THOUSAND NINE HUNDRED FORTY EIGHT ONLY)
REPRESENTING COMPLETE PAYMENT (COMPENSATION) FOR THE SERVICES I RENDERED TO
OAB ESTABLISHMENT.
I HEREBY DECLARE THAT OAB EST. HAS NO FINANCIAL OBLIGATION IN MY FAVOUR AFTER
RECEIVING THE ABOVE MENTIONED AMOUNT IN CASH.
I STATE FURTHER THAT OAB EST. HAS NO OBLIGATION TOWARDS ME IN WHATEVER FORM.
I ATTEST TO THE TRUTHFULNESS OF THIS STATEMENT BY AFFIXING MY SIGNATURE
VOLUNTARILY.
SIGNED.
ELEAZAR GRAN
Courts must undertake a meticulous and rigorous review of quitclaims or waivers, more
particularly those executed by employees. This requirement was clearly articulated by
Chief Justice Artemio V. Panganiban in Land and Housing Development Corporation v.
Esquillo:
Quitclaims, releases and other waivers of benefits granted by laws or contracts in favor
of workers should be strictly scrutinized to protect the weak and the disadvantaged. The
waivers should be carefully examined, in regard not only to the words and terms used,
but also the factual circumstances under which they have been executed. 63(Emphasis
supplied.)

This Court had also outlined in Land and Housing Development

Corporation, citing Periquet v. NLRC, 64 the parameters for valid compromise
agreements, waivers, and quitclaims:
Not all waivers and quitclaims are invalid as against public policy. If the agreement was
voluntarily entered into and represents a reasonable settlement, it is binding on the
parties and may not later be disowned simply because of a change of mind. It is only
where there is clear proof that the waiver was wangled from an unsuspecting or gullible
person, or the terms of settlement are unconscionable on its face, that the law will step
in to annul the questionable transaction. But where it is shown that the person making
the waiver did so voluntarily, with full understanding of what he was doing, and the
consideration for the quitclaim is credible and reasonable, the transaction must be
recognized as a valid and binding undertaking. (Emphasis supplied.)
Is the waiver and quitclaim labeled a Declaration valid? It is not.
The Court finds the waiver and quitclaim null and void for the following reasons:
1. The salary paid to Gran upon his termination, in the amount of SR 2,948.00, is
unreasonably low. As correctly pointed out by the court a quo, the payment of SR
2,948.00 is even lower than his monthly salary of SR 3,190.00 (USD 850.00). In addition, it is
also very much less than the USD 16,150.00 which is the amount Gran is legally entitled
to get from petitioner EDI as backwages. AcHCED
2. The Declaration reveals that the payment of SR 2,948.00 is actually the payment for
Gran's salary for the services he rendered to OAB as Computer Specialist. If the
Declaration is a quitclaim, then the consideration should be much much more than the
monthly salary of SR 3,190.00 (USD 850.00) although possibly less than the estimated
Gran's salaries for the remaining duration of his contract and other benefits as employee
of OAB. A quitclaim will understandably be lower than the sum total of the amounts and
benefits that can possibly be awarded to employees or to be earned for the remainder
of the contract period since it is a compromise where the employees will have to forfeit
a certain portion of the amounts they are claiming in exchange for the early payment
of a compromise amount. The court may however step in when such amount is
unconscionably low or unreasonable although the employee voluntarily agreed to it. In
the case of the Declaration, the amount is unreasonably small compared to the future
wages of Gran.
3. The factual circumstances surrounding the execution of the Declaration would show
that Gran did not voluntarily and freely execute the document. Consider the following
chronology of events:
a. On July 9, 1994, Gran received a copy of his letter of termination;
b. On July 10, 1994, Gran was instructed to depart Saudi Arabia and required to pay his
plane ticket; 65
c. On July 11, 1994, he signed the Declaration;

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d. On July 12, 1994, Gran departed from Riyadh, Saudi Arabia; and
e. On July 21, 1994, Gran filed the Complaint before the NLRC.
The foregoing events readily reveal that Gran was "forced" to sign the Declaration and
constrained to receive the amount of SR 2,948.00 even if it was against his will since
he was told on July 10, 1994 to leave Riyadh on July 12, 1994. He had no other choice
but to sign the Declaration as he needed the amount of SR 2,948.00 for the payment of
his ticket. He could have entertained some apprehensions as to the status of his stay or
safety in Saudi Arabia if he would not sign the quitclaim.
4. The court a quo is correct in its finding that the Declaration is a contract of adhesion
which should be construed against the employer, OAB. An adhesion contract is
contrary to public policy as it leaves the weaker party the employee in a "take-itor-leave-it" situation. Certainly, the employer is being unjust to the employee as there is
no meaningful choice on the part of the employee while the terms are unreasonably
favorable to the employer. 66

[A]ny compromise settlement voluntarily agreed upon with the assistance of the Bureau
of Labor Relations or the regional office of the DOLE, shall be final and binding upon the
parties and the NLRC or any court "shall not assume jurisdiction over issues involved
therein except in case of non-compliance thereof or if there is prima facie evidence
that the settlement was obtained through fraud, misrepresentation, or coercion.
It is made clear that the foregoing rules on quitclaim or waiver shall apply only to labor
contracts of OFWs in the absence of proof of the laws of the foreign country agreed
upon to govern said contracts. Otherwise, the foreign laws shall apply.
WHEREFORE, the petition is DENIED. The October 18, 2000 Decision in CA-G.R. SP No.
56120 of the Court of Appeals affirming the January 15, 1999 Decision and September
30, 1999 Resolution of the NLRC is AFFIRMED with the MODIFICATION that petitioner EDIStaffbuilders International, Inc. shall pay the amount of PhP30,000.00 to respondent Gran
as nominal damages for non-compliance with statutory due process.
No costs.

Thus, the Declaration purporting to be a quitclaim and waiver is unenforceable under

Philippine laws in the absence of proof of the applicable law of Saudi Arabia.

FIRST DIVISION
[G.R. No. 128803. September 25, 1998.]

In order to prevent disputes on the validity and enforceability of quitclaims and waivers
of employees under Philippine laws, said agreements should contain the following:

27. ASIAVEST LIMITED, petitioner, vs. THE COURT OF APPEALS and ANTONIO
HERAS, respondents.

1. A fixed amount as full and final compromise settlement; TCHEDA

DECISION
2. The benefits of the employees if possible with the corresponding amounts, which the
employees are giving up in consideration of the fixed compromise amount;
3. A statement that the employer has clearly explained to the employee in English,
Filipino, or in the dialect known to the employees that by signing the waiver or
quitclaim, they are forfeiting or relinquishing their right to receive the benefits which are
due them under the law; and
4. A statement that the employees signed and executed the document voluntarily, and
had fully understood the contents of the document and that their consent was freely
given without any threat, violence, duress, intimidation, or undue influence exerted on
their person.
It is advisable that the stipulations be made in English and Tagalog or in the dialect
known to the employee. There should be two (2) witnesses to the execution of the
quitclaim who must also sign the quitclaim. The document should be subscribed and
sworn to under oath preferably before any administering official of the Department of
Labor and Employment or its regional office, the Bureau of Labor Relations, the NLRC or
a labor attach in a foreign country. Such official shall assist the parties regarding the
execution of the quitclaim and waiver. 67 This compromise settlement becomes final
and binding under Article 227 of the Labor Code which provides that:

DAVIDE, JR, J p:
In issue is the enforceability in the Philippines of a foreign judgment. The antecedents
are summarized in the 24 August 1990 Decision 1 of Branch 107 of the Regional Trial
Court of Quezon City in Civil Case No. Q-52452; thus:,
The plaintiff Asiavest Limited filed a complaint on December 3, 1987 against the
defendant Antonio Heras praying that said defendant be ordered to pay to the
ASIAVEST LTD the amounts awarded by the Hong Kong Court Judgment dated
December 28, 1984 and amended on April 13, 1987 to wit:
1) US$1,810,265.40 or its equivalent in Hong Kong currency at the time of payment with
legal interest from December 28, 1984 until fully paid;
2) interest on the sum of US$1,500.00 at 9.875% per annum from October 31, 1984 to
December 28, 1984; and
3) HK$905.00 at fixed cost in the action; and

331

4) at least $80,000.00 representing attorney's fees, litigation expenses and cost, with
interest thereon from the date of the judgment until fully paid.
On March 3, 1988 the HERAS filed a Motion to Dismiss. However, before the court could
resolve the said motion, a fire which partially razed the Quezon City Hall Building on
June 11, 1988 totally destroyed the office of this Court, together with all its records,
equipment and properties. On July 26, 1988, the ASIAVEST LIMITED, through counsel filed
a Motion for Reconstitution of Case Records. The Court, after allowing the HERAS to
react thereto, granted the said Motion and admitted the annexes attached thereto as
the reconstituted records of this case per Order dated September 6, 1988. Thereafter,
the Motion to Dismiss, the resolution of which had been deferred, was denied by the
Court in its Order of October 4, 1988.

Her knowledge is based on the fact that she was the personal secretary of Mr. Heras
during his JD Transit days up to the latter part of 1972 when he shifted or diversified to
shipping business in Hong Kong; that she was in-charge of all his letters and
correspondence, business commitments, undertakings, conferences and appointments,
until October 1984 when Mr. Heras left Hong Kong for good; that she was also the
Officer-in-Charge or Office Manager of Navegante Shipping Agency LTD, a Hong Kong
registered and based company acting as ships agent, up to and until the company
closed shop sometime in the first quarter of 1985 when shipping business collapsed
worldwide; that the said Company held office at 34-35 Connaught Road, Central Hong
Kong and later transferred to Caxton House at Duddel Street, Hong Kong, until the
company closed shop in 1985; and that she was certain of such facts because she held
office at Caxton House up to the first quarter of 1985.

On October 19, 1988 HERAS filed his Answer. The case was then set for pre-trial
conference. At the conference, the parties could not arrive at any settlement.
However, they agreed on the following stipulations of facts:

Mr. Lousich was presented as an expert on the laws of Hong Kong, and as a
representative of the law office of the HERAS's counsel who made a verification of the
record of the case filed by the ASIAVEST LIMITED in Hong Kong against the HERAS as well
as the procedure in serving Court processes in Hong Kong.

1. The HERAS admits the existence of the judgment dated December 28, 1984 as well as
its amendment dated April 13, 1987, but not necessarily the authenticity or validity
thereof;

In his affidavit (Exh. "2") which constitutes his direct testimony the said witness stated that:

2. The ASIAVEST LIMITED is not doing business and is not licensed to do business in the
Philippines;
3. The residence of HERAS, Antonio Heras, is New Manila, Quezon City.
The only issue for this Court to determine is, whether or not the judgment of the Hong
Kong Court has been repelled by evidence of want of jurisdiction, want of notice to the
party, collusion, fraud or clear mistake of law or fact, such as to overcome the
presumption established in Section 50, Rule 39 of the Rules of Court in favor of foreign
judgments.
In view of the admission by the HERAS of the existence of the aforementioned judgment
(Pls. See Stipulations of Facts in the Order dated January 5, 1989 as amended by the
Order of January 18, 1989) as well as the legal presumption in favor of the ASIAVEST
LIMITED as provided for in paragraph (b), Sec. 50, (Ibid.), the ASIAVEST LIMITED presented
only documentary evidence to show rendition, existence, and authentication of such
judgment by the proper officials concerned (Pls. See Exhibits "A" thru "B", with their
submarkings). In addition, the ASIAVEST LIMITED presented testimonial and documentary
evidence to show its entitlement to attorney's fees and other expenses of litigation . . .
On the other hand, the HERAS presented two witnesses, namely, Fortunata dela Vega
and Russel Warren Lousich.
The gist of Ms. dela Vega's testimony is to the effect that no writ of summons or copy of
a statement of claim of Asiavest Limited was ever served in the office of the Navegante
Shipping Agency Limited and/or for Mr. Antonio Heras, and that no service of the writ of
summons was either served on the HERAS at his residence in New Manila, Quezon City.

The HERAS was sued on the basis of his personal guarantee of the obligations of
Compania Hermanos de Navegacion S.A. There is no record that a writ of summons was
served on the person of the HERAS in Hong Kong, or that any such attempt at service
was made. Likewise, there is no record that a copy of the judgment of the High Court
was furnished or served on the HERAS; anyway, it is not a legal requirement to do so
under Hong Kong laws;
a) The writ of summons or claim can be served by the solicitor (lawyer) of the claimant
or ASIAVEST LIMITED. In Hong Kong there are no Court personnel who serve writs of
summons and/or most other processes.
b) If the writ of summons or claim (or complaint) is not contested, the claimant or the
ASIAVEST LIMITED is not required to present proof of his claim or complaint nor present
evidence under oath of the claim in order to obtain a Judgment.
c) There is no legal requirement that such a Judgment or decision rendered by the
Court in Hong Kong [to] make a recitation of the facts or the law upon which the claim
is based.
d) There is no necessity to furnish the HERAS with a copy of the Judgment or decision
rendered against him.
e) In an action based on a guarantee, there is no established legal requirement or
obligation under Hong Kong laws that the creditor must first bring proceedings against
the principal debtor. The creditor can immediately go against the guarantor.
On cross examination, Mr. Lousich stated that before he was commissioned by the law
firm of the HERAS's counsel as an expert witness and to verify the records of the Hong

332

Kong case he had been acting as counsel for the HERAS in a number of commercial
matters; that there was an application for service of summons upon the HERAS outside
the jurisdiction of Hong Kong; that there was an order of the Court authorizing service
upon Heras outside of Hong Kong, particularly in Manila or any other place in the
Philippines (p. 9, TSN, 2/14/90); that there must be adequate proof of service of
summons otherwise the Hong Kong Court will refuse to render judgment (p. 10, ibid);
that the mere fact that the Hong Kong Court rendered judgment, it can be presumed
that there was service of summons; that in this case, it is not just a presumption because
there was an affidavit stating that service was effected in [sic] a particular man here in
Manila; that such affidavit was filed by one Jose R. Fernandez of the firm Sycip Salazar
on the 21st of December 1984 and stated in essence that "on Friday the 23rd of
November 1984 he served the 4th HERAS at No. 6 First Street, Quezon City by leaving it
at that address with Mr. Dionisio Lopez, the son-in-law of the 4th HERAS the copy of the
writ and Mr. Lopez informed me and I barely believed that he would bring the said writ
to the attention of the 4th "HERAS" (pp. 11-12, ibid.); that upon filing of that affidavit the
Court was asked and granted judgment against the 4th HERAS; and that if the summons
or claim is not contested, the claimant of the ASIAVEST LIMITED is not required to present
proof of his claim or complaint or present evidence under oath of the claim in order to
obtain judgment; and that such judgment can be enforced in the same manner as a
judgment rendered after full hearing.
The trial court held that since the Hong Kong court judgment had been duly proved, it is
a presumptive evidence of a right as between the parties; hence, the party impugning
it had the burden to prove want of jurisdiction over his person. HERAS failed to discharge
that burden. He did not testify to state categorically and under oath that he never
received summons. Even his own witness Lousich admitted that HERAS was served with
summons in his Quezon City residence. As to De la Vega's testimony regarding nonservice of summons, the same was hearsay and had no probative value. prLL
As to HERAS' contention that the Hong Kong court judgment violated the Constitution
and the procedural laws of the Philippines because it contained no statements of the
facts and the law on which it was based, the trial court ruled that since the issue related
to procedural matters, the law of the forum, i.e., Hong Kong laws, should govern. As
testified by the expert witness Lousich, such legalities were not required under Hong
Kong laws. The trial court also debunked HERAS' contention that the principle of
excussion under Article 2058 of the Civil Code of the Philippines was violated. It declared
that matters of substance are subject to the law of the place where the transaction
occurred; in this case, Hong Kong laws must govern.
The trial court concluded that the Hong Kong court judgment should be recognized
and given effect in this jurisdiction for failure of HERAS to overcome the legal
presumption in favor of the foreign judgment It then decreed; thus:
WHEREFORE, judgment is hereby rendered ordering HERAS to pay to the ASIAVEST
LIMITED the following sums or their equivalents in Philippine currency at the time of
payment: US$1,810,265.40 plus interest on the sum of US$1,500,000.00 at 9.875% per
annum from October 31, 1984 to December 28, 1984, and HK$905 as fixed cost, with
legal interests on the aggregate amount from December 28, 1984, and to pay attorneys
fees in the sum of P80,000.00.

ASIAVEST moved for the reconsideration of the decision. It sought an award of judicial
costs and an increase in attorney's fees in the amount of US$19,346.45 with interest until
full payment of the said obligations. On the other hand, HERAS no longer opposed the
motion and instead appealed the decision to the Court of Appeals, which docketed
the appeal as CA-G.R. CV No. 29513.
In its order 2 of 2 November 1990, the trial court granted ASIAVEST's motion for
reconsideration by increasing the award of attorney's fees to "US$19,345.65 OR ITS
EQUIVALENT IN PHILIPPINE CURRENCY, AND TO PAY THE COSTS OF THIS SUIT," provided
that ASIAVEST would pay the corresponding filing fees for the increase. ASIAVEST
appealed the order requiring prior payment of filing fees. However, it later withdrew its
appeal and paid the additional filing fees.
On 3 April 1997, the Court of Appeals rendered its decision 3 reversing the decision of
the trial court and dismissing ASIAVEST's complaint without prejudice. It underscored the
fact that a foreign judgment does not of itself have any extraterritorial application. For it
to be given effect, the foreign tribunal should have acquired jurisdiction over the person
and the subject matter. If such tribunal has not acquired jurisdiction, its judgment is void.
The Court of Appeals agreed with the trial court that matters of remedy and procedure
such as those relating to service of summons upon the HERAS are governed by the lex
fori, which was, in this case, the law of Hong Kong. Relative thereto, it gave weight to
Lousich's testimony that under the Hong Kong law, the substituted service of summons
upon HERAS effected the Philippines by the clerk of Sycip Salazar Hernandez &
Gatmaitan firm would be valid provided that it was done in accordance with Philippine
laws. It then stressed that where the action is in personam and the HERAS is in the
Philippines, the summons should be personally served on the HERAS pursuant to Section
7, Rule 14 of the Rules of Court. 4Substituted service may only be availed of where the
HERAS cannot be promptly served in person, the fact of impossibility of personal service
should be explained in the proof of service. It also found as persuasive HERAS' argument
that instead of directly using the clerk of the Sycip Salazar Hernandez & Gatmaitan law
office, who was not authorized by the judge of the court issuing the summons, ASIAVEST
should have asked for leave of the local courts to have the foreign summons served by
the sheriff or other court officer of the place where service was to be made, or for
special reasons by any person authorized by the judge. cdasia
The Court of Appeals agreed with HERAS that "notice sent outside the state to a nonresident is unavailing to give jurisdictionin an action against him personally for money
recovery." Summons should have been personally served on HERAS in Hong Kong, for, as
claimed by ASIAVEST, HERAS was physically present in Hong Kong for nearly 14 years.
Since there was not even an attempt to serve summons on HERAS in Hong Kong, the
Hong Kong Supreme Court did not acquire jurisdiction over HERAS. Nonetheless, it did
not totally foreclose the claim of ASIAVEST; thus:
While we are not fully convinced that [HERAS] has a meritorious defense against
[ASIAVEST's] claims or that [HERAS] ought to be absolved of any liability, nevertheless, in
view of the foregoing discussion, there is a need to deviate from the findings of the
lower court in the interest of justice and fair play This, however, is without prejudice to

333

whatever action [ASIAVEST] might deem proper in order to enforce its claims against
[HERAS].
Finally, the Court of Appeals also agreed with HERAS that it was necessary that
evidence supporting the validity of the foreign judgment be submitted and that our
courts are not bound to give effect to foreign judgments which contravene our laws
and the principle of sound morality and public policy.
ASIAVEST forthwith filed the instant petition alleging that the Court of Appeals erred in
ruling that
I.
. . . IT WAS NECESSARY FOR [ASIAVEST] TO PRESENT EVIDENCE 'SUPPORTING THE VALIDITY
OF THE JUDGMENT';
II.
. . . THE SERVICE OF SUMMONS ON [HERAS] WAS DEFECTIVE UNDER PHILIPPINE LAW;
III.
. . . SUMMONS SHOULD HAVE BEEN PERSONALLY SERVED ON HERAS IN HONG KONG;
IV.
. . . THE HONG KONG SUMMONS SHOULD HAVE BEEN SERVED WITH LEAVE OF PHILIPPINE
COURTS;
V.
. . . THE FOREIGN JUDGMENT 'CONTRAVENES PHILIPPINE LAWS, THE PRINCIPLES OF SOUND
MORALITY, AND THE PUBLIC POLICY OF THE PHILIPPINES.
Being interrelated, we shall take up together the assigned errors.
Under paragraph (b) of Section 50, Rule 39 of the Rules of Court, 5 which was the
governing law at the time this case was decided by the trial court and respondent
Court of Appeals, a foreign judgment against a person rendered by a court having
jurisdiction to pronounce the judgment is presumptive evidence of a right as between
the parties and their successors in interest by the subsequent title. However, the
judgment may be repelled by evidence of want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact.

Also, Section 3(n) of Rule 131 of the New Rules of Evidence provides that in the absence
of proof to the contrary, a court, or judge acting as such, whether in the Philippines or
elsewhere, is presumed to have acted in the lawful exercise of jurisdiction.
Hence, once the authenticity of the foreign judgment is proved, the burden to repel it on
grounds provided for in paragraph (b) of Section 50, Rule 39 of the Rules of Court is on
the party challenging the foreign judgment HERAS in this case.
At the pre-trial conference, HERAS admitted the existence of the Hong Kong judgment.
On the other hand, ASIAVEST presented evidence to prove rendition, existence, and
authentication of the judgment by the proper officials. The judgment is thus presumed
to be valid and binding in the country from which it comes, until the contrary is
shown. 6 Consequently, the first ground relied upon by ASIAVEST has merit. The
presumption of validity accorded foreign judgment would be rendered meaningless
were the party seeking to enforce it be required to first establish its validity.
The main argument raised against the Hong Kong judgment is that the Hong Kong
Supreme Court did not acquire jurisdiction over the person of HERAS. This involves the
issue of whether summons was properly and validly served on HERAS. It is settled that
matters of remedy and procedure such as those relating to the service of process upon
the HERAS are governed by the lex fori or the law of the forum, 7 i.e., the law of Hong
Kong in this case. HERAS insisted that according to his witness Mr. Lousich, who was
presented as an expert on Hong Kong laws, there was no valid service of summons on
him.
In his counter-affidavit, 8 which served as his direct testimony per agreement of the
parties, 9 Lousich declared that the record of the Hong Kong case failed to show that a
writ of summons was served upon HERAS in Hong Kong or that any such attempt was
made. Neither did the record show that a copy of the judgment of the court was served
on HERAS. He stated further that under Hong Kong laws (a) a writ of summons could be
served by the solicitor of the claimant or ASIAVEST LIMITED; and (b) where the said writ or
claim was not contested, the claimant or ASIAVEST LIMITED was not required to present
proof under oath in order to obtain judgment.
On cross-examination by counsel for ASIAVEST, Lousich testified that the Hong Kong
court authorized service of summons on HERAS outside of its jurisdiction, particularly in
the Philippines. He admitted also the existence of an affidavit of one Jose R. Fernandez
of the Sycip Salazar Hernandez & Gatmaitan law firm stating that he (Fernandez) served
summons on HERAS on 13 November 1984 at No. 6, 1st St., Quezon City, by leaving a
copy with HERAS's son-in-law Dionisio Lopez. 10 On redirect examination, Lousich
declared that such service of summons would be valid under Hong Kong laws provided
that it was in accordance with Philippine laws. 11
We note that there was no objection on the part of ASIAVEST on the qualification of Mr.
Lousich as an expert on the Hong Kong law. Under Sections 24 and 25, Rule 132 of the
New Rules of Evidence, the record of public documents of a sovereign authority,
tribunal, official body, or public officer may be proved by (1) an official publication
thereof or (2) a copy attested by the officer having the legal custody thereof, which

334

must be accompanied, if the record is not kept in the Philippines, with a certificate that
such officer has the custody. The certificate may be issued by the secretary of the
embassy or legation, consul general, consul, vice consul, or consular agent, or any
officer in the foreign service of the Philippines stationed in the foreign country in which
the record is kept, and authenticated by the seal of his office. The attestation must
state, in substance, that the copy is a correct copy of the original, or a specific part
thereof, as the case may be, and must be under the official seal of the attesting officer.
Nevertheless, the testimony of an expert witness may be allowed to prove a foreign law.
An authority 12 on private international law thus noted:
Although it is desirable that foreign law be proved in accordance with the above rule,
however, the Supreme Court held in the case of Willamettee Iron and Steel Works
v. Muzzal, 13 that Section 41, Rule 123 (Section 25, Rule 132 of the Revised Rules of Court)
does not exclude the presentation of other competent evidence to prove the existence
of a foreign law. In that case, the Supreme Court considered the testimony under oath
of an attorney-at-law of San Francisco, California, who quoted verbatim a section of
California Civil Code and who stated that the same was in force at the time the
obligations were contracted, as sufficient evidence to establish the existence of said
law. Accordingly, in line with this view, the Supreme Court in the Collector of Internal
Revenue v. Fisher et al., 14upheld the Tax Court in considering the pertinent law of
California as proved by the respondents' witness. In that case, the counsel for
respondent "testified that as an active member of the California Bar since 1951, he is
familiar with the revenue and taxation laws of the State of California. When asked by
the lower court to state the pertinent California law as regards exemption of intangible
personal properties, the witness cited Article 4, Sec. 13851 (a) & (b) of the California
Internal and Revenue Code as published in Derring's California Code, a publication of
Bancroft-Whitney Co., Inc. And as part of his testimony, a full quotation of the cited
section was offered in evidence by respondents." Likewise, in several naturalization
cases, it was held by the Court that evidence of the law of a foreign country on
reciprocity regarding the acquisition of citizenship, although not meeting the prescribed
rule of practice, may be allowed and used as basis for favorable action, if, in the light of
all the circumstances, the Court is "satisfied of the authenticity of the written proof
offered." 15 Thus, in a number of decisions, mere authentication of the Chinese
Naturalization Law by the Chinese Consulate General of Manila was held to be
competent proof of that law. 16
There is, however, nothing in the testimony of Mr. Lousich that touched on the specific
law of Hong Kong in respect of service of summons either in actions in rem or in
personam, and where the HERAS is either a resident or nonresident of Hong Kong. In
view of the absence of proof of the Hong Kong law on this particular issue, the
presumption of identity or similarity or the so-called processual presumption shall come
into play. It will thus be presumed that the Hong Kong law on the matter is similar to the
Philippine law. 17
As stated in Valmonte vs. Court of Appeals, 18 it will be helpful to determine first whether
the action is in personam, in rem, orquasi in rem because the rules on service of
summons under Rule 14 of the Rules of Court of the Philippines apply according to the
nature of the action. prcd

An action in personam is an action against a person on the basis of his personal liability.
An action in rem is an action against the thing itself instead of against the person. 19 An
action quasi in rem is one wherein an individual is named as HERAS and the purpose of
the proceeding is to subject his interest therein to the obligation or lien burdening the
property. 20
In an action in personam, jurisdiction over the person of the HERAS is necessary for the
court to validly try and decide the case. Jurisdiction over the person of a resident HERAS
who does not voluntarily appear in court can be acquired by personal service of
summons as provided under Section 7, Rule 14 of the Rules of Court. If he cannot be
personally served with summons within a reasonable time, substituted service may be
made in accordance with Section 8 of said Rule. If he is temporarily out of the country,
any of the following modes of service may he resorted to: (1) substituted service set forth
in Section 8; 21 (2) personal service outside the country, with leave of court; (3) service
by publication also with leave of court; 22or (4) any other manner the court may deem
sufficient. 23
However, in an action in personam wherein the HERAS is a non-resident who does not
voluntarily submit himself to the authority of the court, personal service of summons
within the state is essential to the acquisition of jurisdiction over her person. 24 This
method of service is possible if such HERAS is physically present in the country. If he is
not found therein, the court cannot acquire jurisdiction over his person and therefore
cannot validly try and decide the case against him. 25 An exception was laid down
in Gemperle v. Schenker 26 wherein a non-resident was served with summons through
his wife, who was a resident of the Philippines and who was his representative and
attorney-in-fact in a prior civil case filed by him; moreover, the second case was a mere
offshoot of the first case.
On the other hand, in a proceeding in rem or quasi in rem, jurisdiction over the person of
the HERAS is not a prerequisite to confer jurisdiction on the court provided that the court
acquires jurisdiction over the res. Nonetheless, summons must be served upon the HERAS
not for the purpose of vesting the court with jurisdiction but merely for satisfying the due
process requirements. 27 Thus, where the HERAS is a non-resident who is not found in the
Philippines AND (1) the action affects the personal status of the ASIAVEST LIMITED; (2) the
action relates to, or the subject matter of which is property in the Philippines in which the
HERAS has or claims a lien or interest; (3) the action seeks the exclusion of the HERAS
from any interest in the property located in the Philippines; or (4) the property of the
HERAS has been attached in the Philippines service of summons may be effected by
(a) personal service out of the country, with leave of court; (b) publication, also with
leave of court; or (c) any other manner the court may deem sufficient. 28
In the case at bar, the action filed in Hong Kong against HERAS was in personam, since
it was based on his personal guarantee of the obligation of the principal debtor. Before
we can apply the foregoing rules, we must determine first whether HERAS was a resident
of Hong Kong.
Fortunata de la Vega, HERAS's personal secretary in Hong Kong since 1972 until
1985, 29 testified that HERAS was the President and part owner of a shipping company

335

in Hong Kong during all those times that she served as his secretary. He had in his
employ a staff of twelve. 30 He had "business commitments, undertakings, conferences,
and appointments until October 1984 when [he] left Hong Kong for good." 31 HERAS's
other witness, Russel Warren Lousich, testified that he had acted as counsel for HERAS
"for a number of commercial matters." 32 ASIAVEST then infers that HERAS was a resident
of Hong Kong because he maintained a business there.
It must be noted that in his Motion to Dismiss, 33 as well as in his Answer 34 to ASIAVEST's
complaint for the enforcement of the Hong Kong court judgment, HERAS maintained
that the Hong Kong court did not have jurisdiction over him because the fundamental
rule is that jurisdiction in personam over non-resident HERASs, so as to sustain a money
judgment, must be based upon personal service of summons within the state which
renders the judgment. 35
For its part, ASIAVEST, in its Opposition to the Motion to Dismiss 36 contended: "The
question of Hong Kong court's 'want of jurisdiction' is therefore a triable issue if it is to be
pleaded by the HERAS to 'repel' the foreign judgment. Facts showing jurisdictional lack
(e.g. that the Hong Kong suit was in personam, that HERAS was not a resident of Hong
Kong when the suit was filed or that he did not voluntarily submit to the Hong Kong
court's jurisdiction) should be alleged and proved by the HERAS." 37
In his Reply (to the Opposition to Motion to Dismiss), 38 HERAS argued that the lack of
jurisdiction over his person was corroborated by ASIAVEST's allegation in the complaint
that he "has his residence at No. 6, 1st St., New Manila, Quezon City, Philippines." He then
concluded that such Judicial admission amounted to evidence that he was and is not a
resident of Hong Kong.
Significantly, in the pre-trial conference, the parties came up with stipulations of facts,
among which was that "the residence of HERAS, Antonio Heras, is New Manila, Quezon
City." 39

Even assuming that HERAS was formerly a resident of Hong Kong, he was no longer so in
November 1984 when the extraterritorial service of summons was attempted to be
made on him. As declared by his secretary, which statement was not disputed by
ASIAVEST, HERAS left Hong Kong in October 1984 "for good." 40 His absence in Hong
Kong must have been the reason why summons was not served on him therein; thus,
ASIAVEST was constrained to apply for leave to effect service in the Philippines, and
upon obtaining a favorable action on the matter, it commissioned the Sycip Salazar
Hernandez & Gatmaitan law firm to serve the summons here in the Philippines.
In Brown v. Brown, 41 the HERAS was previously a resident of the Philippines. Several days
after a criminal action for concubinage was filed against him, he abandoned the
Philippines. Later, a proceeding quasi in rem was instituted against him. Summons in the
latter case was served on the HERAS's attorney-in-fact at the latter's address. The Court
held that under the facts of the case, it could not be said that the HERAS was "still a
resident of the Philippines because he ha[d] escaped to his country and [was] therefore
an absentee in the Philippines." As such, he should have been "summoned in the same
manner as one who does not reside and is not found in the Philippines."
Similarly, HERAS, who was also an absentee, should have been served with summons in
the same manner as a non-resident not found in Hong Kong. Section 17, Rule 14 of the
Rules of Court providing for extraterritorial service will not apply because the suit against
him was in personam. Neither can we apply Section 18, which allows extraterritorial
service on a resident HERAS who is temporarily absent from the country, because even if
HERAS be considered as a resident of Hong Kong, the undisputed fact remains that he
left Hong Kong not only "temporarily" but "for good." cdll
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered DENYING the petition in
this case and AFFIRMING the assailed Judgment of the Court of Appeals in CA-G.R. CV
No. 29513.
No costs.

We note that the residence of HERAS insofar as the action for the enforcement of the
Hong Kong court judgment is concerned, was never in issue. He never challenged the
service of summons on him through a security guard in his Quezon City residence and
through a lawyer in his office in that city. In his Motion to Dismiss, he did not question the
jurisdiction of the Philippine court over his person on the ground of invalid service of
summons. What was in issue was his residence as far as the Hong Kong suit was
concerned. We therefore conclude that the stipulated fact that HERAS "is a resident of
New Manila, Quezon City, Philippines" refers to his residence at the time jurisdiction over
his person was being sought by the Hong Kong court. With that stipulation of fact,
ASIAVEST cannot now claim that HERAS was a resident of Hong Kong at the time.
Accordingly, since HERAS was not a resident of Hong Kong and the action against him
was, indisputably, one in personam, summons should have been personally served on
him in Hong Kong. The extraterritorial service in the Philippines was therefore invalid and
did not confer on the Hong Kong court jurisdiction over his person. It follows that the
Hong Kong court judgment cannot be given force and effect here in the Philippines for
having been rendered without jurisdiction.

SO ORDERED.
THIRD DIVISION
[G.R. No. 186571. August 11, 2010.]
28. GERBERT R. CORPUZ, petitioner, vs. DAISYLYN TIROL STO. TOMAS
and The SOLICITOR GENERAL, respondents.
DECISION
BRION, J p:

336

Before the Court is a direct appeal from the decision 1 of the Regional
Trial Court (RTC) of Laoag City, Branch 11, elevated via a petition for review
oncertiorari 2 under Rule 45 of the Rules of Court (present petition).
Petitioner Gerbert R. Corpuz was a former Filipino citizen who acquired
Canadian citizenship through naturalization on November 29, 2000. 3 On January
18, 2005, Gerbert married respondent Daisylyn T. Sto. Tomas, a Filipina, in Pasig
City. 4 Due to work and other professional commitments, Gerbert left for Canada
soon after the wedding. He returned to the Philippines sometime in April 2005 to
surprise Daisylyn, but was shocked to discover that his wife was having an affair with
another man. Hurt and disappointed, Gerbert returned to Canada and filed a
petition for divorce. The Superior Court of Justice, Windsor, Ontario, Canada
granted Gerbert's petition for divorce on December 8, 2005. The divorce decree
took effect a month later, on January 8, 2006. 5
Two years after the divorce, Gerbert has moved on and has found
another Filipina to love. Desirous of marrying his new Filipina fiance in the
Philippines, Gerbert went to the Pasig City Civil Registry Office and registered the
Canadian divorce decree on his and Daisylyn's marriage certificate. Despite the
registration of the divorce decree, an official of the National Statistics
Office (NSO) informed Gerbert that the marriage between him and Daisylyn still
subsists under Philippine law; to be enforceable, the foreign divorce decree must
first be judicially recognized by a competent Philippine court, pursuant to NSO
Circular No. 4, series of 1982. 6 IHDCcT
Accordingly, Gerbert filed a petition for judicial recognition of foreign
divorce and/or declaration of marriage as dissolved (petition) with the RTC.
Although summoned, Daisylyn did not file any responsive pleading but submitted
instead a notarized letter/manifestation to the trial court. She offered no opposition
to Gerbert's petition and, in fact, alleged her desire to file a similar case herself but
was prevented by financial and personal circumstances. She, thus, requested that
she be considered as a party-in-interest with a similar prayer to Gerbert's.
In its October 30, 2008 decision, 7 the RTC denied Gerbert's petition. The
RTC concluded that Gerbert was not the proper party to institute the action for
judicial recognition of the foreign divorce decree as he is a naturalized Canadian
citizen. It ruled that only the Filipino spouse can avail of the remedy, under the
second paragraph of Article 26 of the Family Code, 8 in order for him or her to be
able to remarry under Philippine law. 9 Article 26 of the Family Code reads:

country, except those prohibited under Articles 35(1), (4), (5) and
(6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry, the
Filipino spouse shall likewise have capacity to remarry under
Philippine law.
This conclusion, the RTC stated, is consistent with the legislative intent behind the
enactment of the second paragraph of Article 26 of the Family Code, as
determined by the Court in Republic v. Orbecido III; 10 the provision was enacted
to "avoid the absurd situation where the Filipino spouse remains married to the alien
spouse who, after obtaining a divorce, is no longer married to the Filipino
spouse." 11
THE PETITION
From the RTC's ruling, 12 Gerbert filed the present petition. 13
Gerbert asserts that his petition before the RTC is essentially for declaratory
relief, similar to that filed in Orbecido; he, thus, similarly asks for a determination of
his rights under the second paragraph of Article 26 of theFamily Code. Taking into
account the rationale behind the second paragraph of Article 26 of the Family
Code, he contends that the provision applies as well to the benefit of the alien
spouse. He claims that the RTC ruling unduly stretched the doctrine in Orbecido by
limiting the standing to file the petition only to the Filipino spouse an
interpretation he claims to be contrary to the essence of the second paragraph of
Article 26 of the Family Code. He considers himself as a proper party, vested with
sufficient legal interest, to institute the case, as there is a possibility that he might be
prosecuted for bigamy if he marries his Filipina fiance in the Philippines since two
marriage certificates, involving him, would be on file with the Civil Registry Office.
The Office of the Solicitor General and Daisylyn, in their respective
Comments, 14both support Gerbert's position. SAcaDE
Essentially, the petition raises the issue of whether the second paragraph of Article 26 of
the Family Code extends to aliens the right to petition a court of this jurisdiction for the
recognition of a foreign divorce decree.
THE COURT'S RULING

Art. 26. All marriages solemnized outside the Philippines, in

accordance with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this

The alien spouse can claim no right

under the second paragraph of

337

Article 26 of the Family Code as the

substantive right it establishes is in
favor of the Filipino spouse
The resolution of the issue requires a review of the legislative history and
intent behind the second paragraph of Article 26 of the Family Code.
The Family Code recognizes only two types of defective marriages
void 15 and voidable 16 marriages. In both cases, the basis for the judicial
declaration of absolute nullity or annulment of the marriage exists before orat the
time of the marriage. Divorce, on the other hand, contemplates the dissolution of
the lawful union for cause arising after the marriage. 17 Our family laws do not
recognize absolute divorce between Filipino citizens. 18
Recognizing the reality that divorce is a possibility in marriages between a
Filipino and an alien, President Corazon C. Aquino, in the exercise of her legislative
powers under the Freedom Constitution, 19 enacted Executive Order No. (EO) 227,
amending Article 26 of the Family Code to its present wording, as follows:
Art. 26. All marriages solemnized outside the Philippines, in
accordance with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35(1), (4), (5) and
(6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry, the
Filipino spouse shall likewise have capacity to remarry under
Philippine law.
Through the second paragraph of Article 26 of the Family Code, EO 227 effectively
incorporated into the law this Court's holding in Van Dorn v. Romillo,
Jr. 20 and Pilapil v. Ibay-Somera. 21 In both cases, the Court refused to
acknowledge the alien spouse's assertion of marital rights after a foreign court's
divorce decree between the alien and the Filipino. The Court, thus, recognized that
the foreign divorce had already severed the marital bond between the spouses.
The Court reasoned in Van Dorn v. Romillo that:
To maintain . . . that, under our laws, [the Filipino spouse] has to be
considered still married to [the alien spouse] and still subject to a
wife's obligations . . . cannot be just. [The Filipino spouse] should not
be obliged to live together with, observe respect and fidelity, and

render support to [the alien spouse]. The latter should not continue
to be one of her heirs with possible rights to conjugal property. She
should not be discriminated against in her own country if the ends
of justice are to be served. 22 aCHDST
As the RTC correctly stated, the provision was included in the law "to
avoid the absurd situation where the Filipino spouse remains married to the alien
spouse who, after obtaining a divorce, is no longer married to the Filipino
spouse." 23 The legislative intent is for the benefit of the Filipino spouse, by clarifying
his or her marital status, settling the doubts created by the divorce
decree. Essentially, the second paragraph of Article 26 of theFamily Code provided
the Filipino spouse a substantive right to have his or her marriage to the alien
spouse considered as dissolved, capacitating him or her to remarry. 24 Without the
second paragraph of Article 26 of theFamily Code, the judicial recognition of the
foreign decree of divorce, whether in a proceeding instituted precisely for that
purpose or as a related issue in another proceeding, would be of no significance to
the Filipino spouse since our laws do not recognize divorce as a mode of severing
the marital bond; 25Article 17 of the Civil Code provides that the policy against
absolute divorces cannot be subverted by judgments promulgated in a foreign
country. The inclusion of the second paragraph in Article 26 of the Family
Code provides the direct exception to this rule and serves as basis for recognizing
the dissolution of the marriage between the Filipino spouse and his or her alien
spouse.
Additionally, an action based on the second paragraph of Article 26 of
the Family Code is not limited to the recognition of the foreign divorce decree. If
the court finds that the decree capacitated the alien spouse to remarry, the courts
can declare that the Filipino spouse is likewise capacitated to contract another
marriage. No court in this jurisdiction, however, can make a similar declaration for
the alien spouse (other than that already established by the decree), whose status
and legal capacity are generally governed by his national law. 26
Given the rationale and intent behind the enactment, and the purpose of
the second paragraph of Article 26 of the Family Code, the RTC was correct in
limiting the applicability of the provision for the benefit of the Filipino spouse. In
other words, only the Filipino spouse can invoke the second paragraph of Article 26
of the Family Code; the alien spouse can claim no right under this provision.
The foreign divorce decree is
presumptive evidence of a right that
clothes the party with legal interest to
petition for its recognition in this
jurisdiction

338

We qualify our above conclusion i.e., that the second paragraph of

Article 26 of the Family Code bestows no rights in favor of aliens with the
complementary statement that this conclusion is not sufficient basis to dismiss
Gerbert's petition before the RTC. In other words, the unavailability of the second
paragraph of Article 26 of the Family Code to aliens does not necessarily strip
Gerbert of legal interest to petition the RTC for the recognition of his foreign divorce
decree. The foreign divorce decree itself, after its authenticity and conformity with
the alien's national law have been duly proven according to our rules of evidence,
serves as a presumptive evidence of right in favor of Gerbert, pursuant to Section
48, Rule 39 of the Rules of Court which provides for the effect of foreign judgments.
This Section states: aTEScI
SEC. 48. Effect of foreign judgments or final orders. The effect of
a judgment or final order of a tribunal of a foreign country, having
jurisdiction to render the judgment or final order is as follows:
(a) In case of a judgment or final order upon a specific
thing, the judgment or final order is conclusive
upon the title of the thing; and
(b) In case of a judgment or final order against a person,
the judgment or final order is presumptive
evidence of a right as between the parties and
their successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by
evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.
To our mind, direct involvement or being the subject of the foreign judgment is
sufficient to clothe a party with the requisite interest to institute an action before our
courts for the recognition of the foreign judgment. In a divorce situation, we have
declared, no less, that the divorce obtained by an alien abroad may be
recognized in the Philippines, provided the divorce is valid according to his or her
national law. 27
The starting point in any recognition of a foreign divorce judgment is the
acknowledgment that our courts do not take judicial notice of foreign judgments
and laws. Justice Herrera explained that, as a rule, "no sovereign is bound to give
effect within its dominion to a judgment rendered by a tribunal of another
country." 28 This means that the foreign judgment and its authenticity must be
proven as facts under our rules on evidence, together with the alien's applicable
national law to show the effect of the judgment on the alien himself or

herself. 29 The recognition may be made in an action instituted specifically for the
purpose or in another action where a party invokes the foreign decree as an
integral aspect of his claim or defense.
In Gerbert's case, since both the foreign divorce decree and the national
law of the alien, recognizing his or her capacity to obtain a divorce, purport to be
official acts of a sovereign authority, Section 24, Rule 132 of the Rules of Court
comes into play. This Section requires proof, either by (1) official publications or (2)
copies attested by the officer having legal custody of the documents. If the copies
of official records are not kept in the Philippines, these must be (a) accompanied
by a certificate issued by the proper diplomatic or consular officer in the Philippine
foreign service stationed in the foreign country in which the record is kept and (b)
authenticated by the seal of his office.
The records show that Gerbert attached to his petition a copy of the
divorce decree, as well as the required certificates proving its authenticity, 30but
failed to include a copy of the Canadian law on divorce. 31 Under this situation,
we can, at this point, simply dismiss the petition for insufficiency of supporting
evidence, unless we deem it more appropriate to remand the case to the RTC to
determine whether the divorce decree is consistent with the Canadian divorce
law. DCASIT
We deem it more appropriate to take this latter course of action, given
the Article 26 interests that will be served and the Filipina wife's (Daisylyn's) obvious
conformity with the petition. A remand, at the same time, will allow other interested
parties to oppose the foreign judgment and overcome a petitioner's presumptive
evidence of a right by proving want of jurisdiction, want of notice to a party,
collusion, fraud, or clear mistake of law or fact. Needless to state, every precaution
must be taken to ensure conformity with our laws before a recognition is made, as
the foreign judgment, once recognized, shall have the effect of res
judicata 32 between the parties, as provided in Section 48, Rule 39 of the Rules of
Court. 33
In fact, more than the principle of comity that is served by the practice of
reciprocal recognition of foreign judgments between nations, the res
judicata effect of the foreign judgments of divorce serves as the deeper basis for
extending judicial recognition and for considering the alien spouse bound by its
terms. This same effect, as discussed above, will not obtain for the Filipino spouse
were it not for the substantive rule that the second paragraph of Article 26 of
the Family Code provides.

339

Considerations beyond the

recognition of the foreign divorce
decree
As a matter of "housekeeping" concern, we note that the Pasig City
Civil Registry Office has already recorded the divorce decree on Gerbert and
Daisylyn's marriage certificate based on the mere presentation of the
decree. 34 We consider the recording to be legally improper; hence, the need to
draw attention of the bench and the bar to what had been done.
Article 407 of the Civil Code states that "[a]cts, events and judicial
decrees concerning the civil status of persons shall be recorded in the civil register."
The law requires the entry in the civil registry of judicial decrees that produce legal
consequences touching upon a person's legal capacity and status, i.e., those
affecting "all his personal qualities and relations, more or less permanent in nature,
not ordinarily terminable at his own will, such as his being legitimate or illegitimate,
or his being married or not." 35
A judgment of divorce is a judicial decree, although a foreign one,
affecting a person's legal capacity and status that must be recorded. In
fact,Act No. 3753 or the Law on Registry of Civil Status specifically requires the
registration of divorce decrees in the civil registry:
Sec. 1. Civil Register. A civil register is established for recording
the civil status of persons, in which shall be entered:
(a) births;
(b) deaths;
(c) marriages;
(d) annulments of marriages;
(e) divorces; EHDCAI
(f) legitimations;

(i) naturalization; and

(j) changes of name.
xxx xxx xxx
Sec. 4. Civil Register Books. The local registrars shall keep and
preserve in their offices the following books, in which they shall,
respectively make the proper entries concerning the civil status of
persons:
(1) Birth and death register.
(2) Marriage register, in which shall be entered not only
the marriages solemnized but also divorces and
dissolved marriages.
(3) Legitimation, acknowledgment, adoption, change of
name and naturalization register.
But while the law requires the entry of the divorce decree in the civil registry, the
law and the submission of the decree by themselves do not ipso factoauthorize the
decree's registration. The law should be read in relation with the requirement of a
judicial recognition of the foreign judgment before it can be given res
judicata effect. In the context of the present case, no judicial order as yet exists
recognizing the foreign divorce decree. Thus, the Pasig City Civil Registry Office
acted totally out of turn and without authority of law when it annotated the
Canadian divorce decree on Gerbert and Daisylyn's marriage certificate, on the
strength alone of the foreign decree presented by Gerbert.
Evidently, the Pasig City Civil Registry Office was aware of the requirement
of a court recognition, as it cited NSO Circular No. 4, series of 1982, 36 and
Department of Justice Opinion No. 181, series of 1982 37 both of which required
a final order from a competent Philippine court before a foreign judgment,
dissolving a marriage, can be registered in the civil registry, but it, nonetheless,
allowed the registration of the decree. For being contrary to law, the registration of
the foreign divorce decree without the requisite judicial recognition is patently void
and cannot produce any legal effect.

(g) adoptions;
(h) acknowledgment of natural children;

Another point we wish to draw attention to is that the recognition that the
RTC may extend to the Canadian divorce decree does not, by itself, authorize
the cancellation of the entry in the civil registry. A petition for recognition of a

340

foreign judgment is not the proper proceeding, contemplated under the Rules of
Court, for the cancellation of entries in the civil registry. STHDAc
Article 412 of the Civil Code declares that "no entry in a civil register shall
be changed or corrected, without judicial order." The Rules of Court supplements
Article 412 of the Civil Code by specifically providing for a special remedial
proceeding by which entries in the civil registry may be judicially cancelled or
corrected. Rule 108 of the Rules of Court sets in detail the jurisdictional and
procedural requirements that must be complied with before a judgment,
authorizing the cancellation or correction, may be annotated in the civil registry. It
also requires, among others, that the verified petition must be filed with the RTC of
the province where the corresponding civil registry is located; 38 that the civil
registrar and all persons who have or claim any interest must be made parties to
the proceedings; 39 and that the time and place for hearing must be published in
a newspaper of general circulation. 40As these basic jurisdictional requirements
have not been met in the present case, we cannot consider the petition Gerbert
filed with the RTC as one filed under Rule 108 of the Rules of Court.
We hasten to point out, however, that this ruling should not be construed
as requiring two separate proceedings for the registration of a foreign divorce
decree in the civil registry one for recognition of the foreign decree and another
specifically for cancellation of the entry under Rule 108 of the Rules of Court. The
recognition of the foreign divorce decree may be made in a Rule 108 proceeding
itself, as the object of special proceedings (such as that in Rule 108 of the Rules of
Court) is precisely to establish the status or right of a party or a particular fact.
Moreover, Rule 108 of the Rules of Court can serve as the appropriate adversarial
proceeding 41 by which the applicability of the foreign judgment can be
measured and tested in terms of jurisdictional infirmities, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.
WHEREFORE,
we GRANT the
petition
for
review
on certiorari, andREVERSE the October 30, 2008 decision of the Regional Trial Court
of Laoag City, Branch 11, as well as its February 17, 2009 order. We order
the REMANDof the case to the trial court for further proceedings in accordance
with our ruling above. Let a copy of this Decision be furnished the Civil
RegistrarGeneral. No costs.
SO ORDERED.
Carpio Morales, Bersamin, Abad * and Villarama Jr., JJ., concur.
||| (Corpuz v. Sto. Tomas, G.R. No. 186571, [August 11, 2010], 642 PHIL 420-438)

341