SECOND DIVISION

G.R. No. 179535, June 09, 2014

JOSE ESPINELI A.K.A. DANILO ESPINELI, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

RESOLUTION

DEL CASTILLO, J.:

Jurisprudence teaches us that for circumstantial evidence to be sufficient to support a conviction, all circumstances must
be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time
inconsistent with the hypothesis that he is innocent x x x.1 Thus, conviction based on circumstantial evidence can be
upheld provided that the circumstances proven constitute an unbroken chain which leads to one fair and reasonable
conclusion that points to the accused, to the exclusion of all others, as the guilty person.2 cralawred

Assailed in the present Petition for Review on Certiorari3 is the July 6, 2007 Decision4 of the Court of Appeals (CA) in CA-
G.R. CR-H.C. No. 02252 which modified the August 31, 1999 Decision5 of the Regional Trial Court (RTC) of Imus, Cavite,
Branch 90, by finding petitioner Jose Espineli a.k.a. Danilo Danny Espineli (petitioner) guilty of the crime of homicide
instead of murder. Also questioned is the CAs September 14, 2007 Resolution6 denying petitioners Motion for
Reconsideration.7c ralawred

Factual Antecedents

On June 24, 1997, an Information8 charging petitioner with the crime of murder was filed before the RTC,9 the accusatory
portion of which reads as follows: ChanRobles Vi rt ualawlib ra ry

That on or about the 15th day of December, 1996 in the Municipality of Imus, Province of Cavite, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, together with one (1) Sotero Paredes and three (3)
other unidentified persons, whose real names, identities and whereabouts are still unknown, said Sotero Paredes having
been earlier charged with the same offense, and is now undergoing trial before Branch 90, of the Regional Trial Court of
Cavite, then armed with firearms, conspiring, confederating and mutually helping one another, with intent to kill, with
treachery and evident premeditation and taking advantage of superior strength, did then and there, willfully, unlawfully
and feloniously, attack, assault and shoot one Alberto Berbon y Downie with the use of said firearms, thereby inflicting
upon the latter multiple gunshot wounds on his head and different parts of his body which caused his instantaneous
death, to the damage and prejudice of the heirs of said Alberto Berbon y Downie.

CONTRARY TO LAW.10

Petitioner was arrested on July 1, 1997 and when arraigned on July 7, 1997 with the assistance of counsel, entered a
plea of not guilty.11 cra lawred

The facts show that in the early evening of December 15, 1996, Alberto Berbon y Downie (Alberto), a 49-year old Senior
Desk Coordinator of the radio station DZMM, was shot in the head and different parts of the body in front of his house in
Imus, Cavite by unidentified malefactors who immediately fled the crime scene on board a waiting car.

Meanwhile, the group of Atty. Orly Dizon (Atty. Dizon) of the National Bureau of Investigation (NBI) arrested and took
into custody one Romeo Reyes (Reyes) for the crime of Illegal Possession of Deadly Weapon. Reyes confided to the
group of Atty. Dizon that he was willing to give vital information regarding the Berbon case. In due course, NBI Agent
Dave Segunial (NBI Agent Segunial) interviewed Reyes on February 10, 1997 and reduced his statement into writing
whereby Reyes claimed that on December 15, 1996, he saw petitioner and Sotero Paredes (Paredes) board a red car
while armed with a .45 caliber firearm and armalite, respectively; and that petitioner told Paredes that ayaw ko nang
abutin pa ng bukas yang si Berbon.12 Subsequently, Reyes posted bail and was released on February 14,
1997. Thenceforth, he jumped bail and was never again heard of. NBI Agent Segunial testified on these facts during the
trial.

The victims widow, Sabina Berbon (Sabina) likewise testified. According to her, sometime in the third week of February
1997 Reyes sought financial help so he could transfer his family to the province and protect them from any untoward
consequence that may result from his giving information to the NBI regarding the death of Sabinas husband. Sabina
gave him the total amount of P1,500.00 and promised to help him in applying for the witness protection program. This
was affirmed on the witness stand by Sabinas brother, Bartolome Pakingan. After that, however, Reyes never came
back.

Another prosecution witness, Rodolfo Dayao (Rodolfo), testified that he sold his red Ford Escort car to three persons who
came to his residence in the afternoon of September 1, 1996. He later identified the said car from the photographs
presented to him by the police officers.

Dr. Ludivino J. Lagat (Dr. Lagat), the NBI Medico-Legal Officer who conducted a post-mortem examination on Alberto,
declared in his Autopsy Report that the victim suffered multiple gunshot wounds in the head and body. He also stated
that based on the size of the gunshot wounds or entrance, high-powered guns were used in the killing.
Petitioner, on the other hand, did not adduce evidence for his defense. Instead, he filed a Demurrer to
Evidence13 without leave of court. As no action whatsoever was taken thereon by the trial court, petitioner just moved
that the case be deemed submitted for decision.

Ruling of the Regional Trial Court

In its Decision14 dated August 31, 1999, the trial court adjudged petitioner guilty of murder, thus: ChanRobles Virtualawl ibra ry

WHEREFORE, premises considered, accused JOSE ESPINELI a.k.a. DANILO Danny Espineli, is found guilty beyond
reasonable doubt of committing the crime of Murder as charged. He is, therefore, sentenced to suffer the penalty of
RECLUSION PERPETUA, and is likewise ordered to pay the heirs of Alberto Berbon y Downie, the civil indemnity of
P50,000.00, and actual and compensatory damages in the total amount of P135,000.00 as funeral expenses (Exhibit
H), interment fee of P8,360.00 (Exhibit C), medical expenses in the total amount of P1,519.45 (Exhibit[s] D, D-1
and D-2) and for the contract fees of Memorial Park Care the amount of P15,700.00 (Exhibit E).

Furthermore, considering that he is a high risk prisoner, his transfer to the National Penitentiary at Muntinlupa City,
Metro Manila, is immediately ordered.

SO ORDERED.15

Petitioner seasonably appealed his conviction before this Court. Pursuant, however, to the Courts pronouncement
in People v. Mateo,16 the case was ordered transferred to the CA for appropriate action and disposition through a
Resolution17 dated March 22, 2006.

Ruling of the Court of Appeals

In its Decision18 promulgated on July 6, 2007, the CA affirmed with modification the findings of the trial court. It
ratiocinated that since none of the prosecution witnesses saw how the killing of the victim was perpetrated, the qualifying
circumstance of abuse of superior strength cannot be appreciated. Neither can nighttime serve as an aggravating
circumstance as the time of the commission of the crime was not even alleged in the Information. In view thereof, the
CA found petitioner guilty only of homicide instead of murder. The decretal portion of the appellate courts Decision
reads: ChanRobles Vi rtua lawlib rary

WHEREFORE, premises considered, the present appeal is hereby DISMISSED. The appealed Decision dated August 31,
1999 of the Regional Trial Court of Imus, Cavite, Branch 90 is hereby AFFIRMED with MODIFICATION in that accused-
appellant is hereby found GUILTY beyond reasonable doubt of the crime of Homicide and is hereby sentenced to an
indeterminate prison term of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months
of reclusion temporal, as maximum.

In all other respects, the said decision STANDS.

In the service of his sentence, accused-appellant shall be credited in full with the period of his preventive imprisonment.

With costs against the accused-appellant.

SO ORDERED.19

Dissatisfied, petitioner filed a Motion for Reconsideration20 which the CA denied in its Resolution21dated September 14,
2007.

Hence, this Petition.

Arguments of the Parties

Petitioner posits that the CA should not have affirmed the Decision of RTC as the latter erred: C hanRoble sVi rt ualawlib ra ry

1. x x x [in admitting, considering and giving] probative value to Exhibit A, the Sinumpaang Salaysay of [Reyes]
because [he] was not presented in court to confirm, affirm and authenticate the contents of his sworn
statement. It resulted in the denial of petitioners constitutional right to confront and cross-examine his
accusers.22 cralawred

2. x x x [in convicting] the [petitioner] based on unproven, inadmissible circumstantial evidence.23 c ralawre d

3. x x x in not acquitting the petitioner for failure of the prosecution to prove [his guilt] beyond reasonable doubt x
x x.24

In sum, petitioner anchors his quest for the reversal of his conviction on the alleged erroneous admission in evidence of
the Sinumpaang Salaysay25 of Reyes for being hearsay and inadmissible. He avers that the said sworn statement should
not have been given probative value because its contents were neither confirmed nor authenticated by the affiant. Thus,
all circumstances emanating from or included in the sworn statement must be totally brushed aside as lacking any
evidentiary and probative value. Petitioner emphasizes that as found by the courts below, there was no direct evidence
linking him to the crime; therefore, he wants this Court to review the sufficiency of the circumstantial evidence upon
which his conviction was based as he believes that the same failed to establish his guilt beyond reasonable doubt.

For its part, the Office of the Solicitor General (OSG), representing respondent People of the Philippines, concurs with the
petitioner and recommends his acquittal.26 It is also of the view that the prosecution failed to discharge its burden of
proving petitioners guilt beyond reasonable doubt.

The Courts Ruling

The Petition is devoid of merit.

Truly, direct evidence of the commission of a crime is not the only basis from which a court may draw its finding of
guilt.27 The rules of evidence allow a trial court to rely on circumstantial evidence to support its conclusion of
guilt. Circumstantial evidence is that evidence which indirectly proves a fact in issue through an inference which the
fact-finder draws from the evidence established.28 Under Section 4, Rule 133 of the Rules of Court, circumstantial
evidence would be sufficient to convict the offender if i) there is more than one circumstance; ii) the facts from which
the inference is derived are proven; and iii) the combination of all circumstances is such as to produce a conviction
beyond reasonable doubt.29 All the circumstances must be consistent with one another, consistent with the hypothesis
that the accused is guilty and at the same time inconsistent with the hypothesis that he is innocent. Thus, conviction
based on circumstantial evidence can be upheld provided that the circumstances proved constitute an unbroken chain
which leads to one fair and reasonable conclusion that points to the accused, to the exclusion of all others as the guilty
person.30cra lawred

In this case, the circumstances found by the CA as forming an unbroken chain leading to one fair and reasonable
conclusion that petitioner, to the exclusion of all others, is the guilty person are the following:

1. In the morning of December 15, 1996, petitioner was heard telling his co-accused Sotero Paredes (Sotero) ayaw ko
nang abutin pa ng bukas yang si Berbon before boarding a red car. Sotero was holding an armalite rifle while petitioner
was armed with a .45 caliber pistol;

2. The said red car was identified or recognized by prosecution witness Rodolfo to be the same car he had sold to Sotero
for P10,000.00 in September 1996;

3. The victim Alberto was fatally shot later in the day (December 15, 1996) by unidentified gunmen who thereafter
immediately fled riding a red car; and

4. Post-mortem examination of the victims body showed that he sustained multiple gunshot wounds, the nature,
severity and characteristics of which indicate that they were inflicted using high-powered guns, possibly an armalite rifle
and .22 caliber pistol.31
c ralawre d

The records reveal that there was no eyewitness to the actual killing of Alberto. Thus the courts below were forced to
render their verdict of conviction on circumstantial evidence as sanctioned under Section 4, Rule 13332 of the Rules of
Court. The central issue now confronting this Court is whether the prosecution has amply proved by circumstantial
evidence petitioners guilt beyond reasonable doubt.

The circumstantial evidence relied upon

by the Court of Appeals sufficiently support
petitioners conviction.

The Court has carefully scrutinized the evidence presented in this case in the light of the standards discussed above and
finds the foregoing circumstantial evidence sufficient to support a judgment of conviction. Several reasons deserve our
acceptance of the circumstances upon which petitioners conviction was based, to wit:

First, NBI Agent Segunial testified that he had investigated Reyes and reduced the latters statement into writing
declaring, among others, that in the morning of December 15, 1996, he (Reyes) overheard petitioner telling
Sotero Ayaw ko nang abutin pa ng bukas yang si Berbon and saw them armed with .45 caliber pistol and an armalite,
respectively, before boarding a red car. The CA gave weight to Reyes sworn statement in this wise: ChanRoble sVirt ualawli bra ry

The probative value of Romeo Reyes sworn statement as to the words spoken by appellant to his co-accused Sotero
Paredes in the morning of December 15, 1996 cannot be disputed. x x x33

Petitioner takes vigorous exception to the said findings, insisting that the said sworn statement belongs to the category
of hearsay evidence and therefore inadmissible. He asserts that its contents were never confirmed or authenticated by
Reyes, thus, it lacks probative value.

The Court is unconvinced.

The hearsay evidence rule as provided under Section 36, Rule 130 of the Rules of Court states: ChanRoblesVi rt ualawlib ra ry

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 derived from his own perception, except as otherwise
provided in these rules.

Evidence is hearsay when its probative force depends in whole or in part on the competency and credibility of some
persons other than the witness by whom it is sought to produce. However, while the testimony of a witness regarding a
statement made by another person given for the purpose of establishing the truth of the fact asserted in the statement is
clearly hearsay evidence, it is otherwise if the purpose of placing the statement on the record is merely to establish the
fact that the statement, or the tenor of such statement, was made. Regardless of the truth or falsity of a statement,
when what is relevant is the fact that such statement has been made, the hearsay rule does not apply and the statement
may be shown. As a matter of fact, evidence as to the making of the statement is not secondary but primary, for the
statement itself may constitute a fact in issue or is circumstantially relevant as to the existence of such a fact.34 This is
known as the doctrine of independently relevant statements.35 cralawred

In the present case, the testimony of NBI Agent Segunial that while he was investigating Reyes, the latter confided to
him that he (Reyes) heard petitioner telling Sotero Ayaw ko nang abutin pa ng bukas yang si Berbon and that he saw
the two (petitioner and Sotero) armed with a .45 caliber pistol and an armalite, respectively, before boarding a red car,
cannot be regarded as hearsay evidence. This is considering that NBI Agent Segunials testimony was not presented to
prove the truth of such statement but only for the purpose of establishing that on February 10, 1997, Reyes executed a
sworn statement containing such narration of facts. This is clear from the offer of the witness oral
testimony.36 Moreover, NBI Agent Segunial himself candidly admitted that he is incompetent to testify on the
truthfulness of Reyes statement.37 Verily then, what the prosecution sought to be admitted was the fact that Reyes
made such narration of facts in his sworn statement and not necessarily to prove the truth thereof. Thus, the testimony
of NBI Agent Segunial is in the nature of an independently relevant statement where what is relevant is the fact that
Reyes made such statement and the truth and falsity thereof is immaterial. In such a case, the statement of the witness
is admissible as evidence and the hearsay rule does not apply.38 Moreover, the written statement of Reyes is a notarized
document having been duly subscribed and sworn to before Atty. Cesar A. Bacani, a supervising agent of the NBI. As
such, it may be presented in evidence without further proof, the certificate of acknowledgment being a prima
facie evidence of the due execution of this instrument or document involved pursuant to Section 30 of Rule 132 of the
Rules of Court. As held in Gutierrez v. Mendoza-Plaza,39 a notarized document enjoys a prima facie presumption of
authenticity and due execution which must be rebutted by clear and convincing evidence. Here, no clear and convincing
evidence was presented by petitioner to overcome such presumption. Clearly, therefore, the CA did not err in its
appreciation of Reyes sworn statement as testified to by NBI Agent Segunial.

Second, the identification and recognition through photograph by Rodolfo of the 1971 Ford Escort red colored car as the
same car he had sold to Sotero in September 1996 clearly and convincingly prove that it was the very same red car used
in the killing of Alberto on December 15, 1996.

Third, Alberto was shot and killed on December 15, 1996 and the gunmen immediately fled the scene riding a red car
which was identified as the same car previously sold by Rodolfo to Sotero.

Fourth, though the testimony of Dr. Lagat was limited to the post-mortem examination of the cadaver of Alberto, his
findings that the victim suffered multiple gunshot wounds and that the same were caused by high-powered guns, served
as corroborative evidence and contributed in a significant way in establishing the level of proof that the law requires in
convicting petitioner.

Lastly, petitioners escape from detention on August 26, 1998 while the case was pending can also be considered as
another circumstance since it is a strong indication of his guilt.

All told, this Court finds the concordant combination and cumulative effect of the alleged established circumstances,
which essentially were the same circumstances found by the trial court and the appellate court, to have satisfied the
requirement of Section 4, Rule 133 of the Rules of Court. Indeed, the incriminating circumstances, when taken together,
constitute an unbroken chain of events enough to arrive at the conclusion that petitioner was responsible for the killing of
the victim.

Besides, it is [a]n established rule in appellate review x x x that the trial courts factual findings, including its
assessment of the credibility of the witnesses and the probative weight of their testimonies, as well as the conclusions
drawn from the factual findings, are accorded respect, if not conclusive effect. These factual findings and conclusions
assume greater weight if they are affirmed by the CA,40 as in this case.

The Crime Committed and the Proper Penalty.

The Court agrees with the CA that petitioner is guilty only of the crime of homicide in view of the prosecutions failure to
prove any of the alleged attendant circumstances of abuse of superior strength and nighttime. As aptly observed by the
appellate court:ChanRoble sVi rt ualawlib ra ry

The circumstance of abuse of superior strength is present whenever there is inequality of forces between the victim and
the aggressor, assuming a situation of superiority of strength notoriously advantageous for the aggressor, and the latter
takes advantage of it in the commission of the crime. However, as none of the prosecution witnesses saw how the killing
was perpetrated, abuse of superior strength cannot be appreciated in this case. Neither can nighttime serve as an
aggravating circumstance, the time of the commission of the crime was not even alleged in the Information.41 (Citations
omitted)

The penalty prescribed by law for the crime of homicide is reclusion temporal.42 In view of the absence of any mitigating
or aggravating circumstance and applying the Indeterminate Sentence Law, the maximum of the sentence should be
within the range of reclusion temporal in its medium term which has a duration of fourteen (14) years, eight (8) months
and one (1) day to seventeen (17) years and four (4) months, while the minimum should be within the range of prision
mayor which has a duration of six (6) years and one (1) day to twelve (12) years. Thus, the imposition by the CA of an
indeterminate prison term of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months
of reclusion temporal, as maximum, is in order.
Petitioners Civil liability

While the CA correctly imposed the amount of P50,000.00 as civil indemnity, it failed, however, to award moral damages.
These awards are mandatory without need of allegation and proof other than the death of the victim, owing to the fact of
the commission of murder or homicide.43 Thus, for moral damages, the award of P50,000.00 to the heirs of the victim is
only proper.

Anent the award of actual damages, this Court sees no reason to disturb the amount awarded by the trial court as upheld
by the CA since the itemized medical and burial expenses were duly supported by receipts and other documentary
evidence.

The CA did not grant any award of damages for loss of earning capacity and rightly so. Though Sabina testified as to the
monthly salary of the deceased, the same remains unsubstantiated. Such indemnity cannot be awarded in the absence
of documentary evidence except where the victim was either self-employed or a daily wage worker earning less than the
minimum wage under current labor laws.44 The exceptions find no application in this case.

In addition and in conformity with current policy, an interest at the legal rate of 6% per annum is imposed on all the
monetary awards for damages from date of finality of this judgment until fully paid.

WHEREFORE, in light of all the foregoing, the Petition is hereby DENIED. The Decision dated July 6, 2007 and
Resolution dated September 14, 2007 of the Court of Appeals in CA-G.R. CR-H.C. No. 02252 are AFFIRMED with
the MODIFICATIONS that petitioner JOSE ESPINELI a.k.a. DANILO DANNY ESPINELI is further ordered to pay the
heirs of the victim ALBERTO BERBON y DOWNIE P50,000.00 as moral damages as well as interest on all the damages
assessed at the legal rate of 6% per annum from date of finality of this judgment until fully paid.

SO ORDERED.

Carpio, (Chairperson), Brion, Perez, and Perlas-Bernabe, JJ., concur.

Endnotes:

People v. Lopez, 371 Phil. 852, 860 (1999).

1

People v. Abdulah, 596 Phil. 870, 876 (2009).

2

Rollo, pp. 10-39.

3

4
CA rollo, 119-142; penned by Associate Justice Martin S. Villarama, Jr. (now a member of this Court) and concurred in
by Associate Justices Noel G. Tijam and Sesinando S. Villon.

5
Records, pp.183-196; penned by Executive Judge Dolores L. Espaol.

6
CA rollo, p. 164

7
Id. at 147-152.

8
Records, pp. 1-2.

9
Later docketed as Criminal Case No. 4898-97.

10
Records, p. 1.

11
Id. at 30, 32.

12
Id. at 36.

13
Id. at 133-136.

14
Id. at 183-196.

15
Id. at 196.

16
G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.

17
CA rollo, pp. 39-40.

18
Id. at 119-142.

19
Id. at 141.
20
Id. at 147-152.

21
Id. at 164.

22
Rollo, p. 29.

23
Id. at 32.

24
Id. at 35.

25
Records, pp. 36-37.

26
See the OSGs Manifestation and Motion in Lieu of Comment, rollo, pp. 142-157.

People v. Manchu, 593 Phil. 398, 406 (2008).

27

People v. Osianas, 588 Phil. 615, 627 (2008).

28

People v. Gaffud, Jr., 587 Phil. 521,530 (2008).

29

People v. Abdulah, supra note 2.

30

31
CA rollo, pp. 138-139.

32
Circumstantial evidence, when sufficient. Circumstantial evidence is sufficient for conviction if:
(a) There is more than one circumstance;
(b) The facts from which the inference are derived are proven; and
(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.
33
CA rollo, p. 139.

Republic v. Heirs of Felipe Alejaga, Sr., 441 Phil. 656, 672 (2002).
34

35
Id.

36
TSN, August 1, 1993, p. 3.

37
Id. at 25.

People v. Gumimba, 545 Phil. 627, 652 (2007).

38

39
G.R. No. 185477, December 4, 2009, 607 SCRA 807,817.

People v. Villasan, 618 Phil. 240, 251 (2009).

40

41
CA rollo, p. 140.

42
REVISED PENAL CODE, Article 249.

Art. 249. Homicide. Any person who, not falling within the provisions of Article 246, shall kill another without the
attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty of homicide and
be punished by reclusion temporal.

People v. Orias, G.R. No. 186539, June 29, 2010, 622 SCRA 417,437-438.
43

44
People v. Mamaruncas, G.R. No. 179497, January 25, 2012, 664 SCRA 182, 202.
 Republic of the Philippines
Supreme Court
Manila

FIRST DIVISION

JALLALUDIN ABDULRAHMAN G.R. No. 151458

GULAM,

Petitioner, Present:

PANGANIBAN, CJ., Chairperson,

YNARES-SANTIAGO,

- versus - AUSTRIA-MARTINEZ,

CALLEJO, SR. and

CHICO-NAZARIO, JJ.

SPOUSES CATALINO and Promulgated:

RICARDA SANTOS, August 31, 2006

Respondents.

x------------------------------------------------x
 DECISION

AUSTRIA-MARTINEZ, J.:

The question of whether or not petitioner has fully paid the stipulated price under the
Contract to Sell between him and respondents is a question of fact that is not proper in the
present petition for review on certiorari under Rule 45 of the Rules of Court, as only
questions of law may be raised therein,[1] save for certain exceptions,[2] which are not present
in this case.

Petitioner and respondents entered into a Contract to Sell on January 1994, whereby the
latter agreed to sell to petitioner a 72-square meter parcel of land located in
Sampaloc, Manila, for the price of P1,700,000.00, including a 2-storey townhouse to be
constructed by respondents on the property. The terms of payment were as
follows: P500,000.00 to be paid on the first month of construction, another P500,000.00 to
be paid on the second month of construction, the remaining balance to be added on the full
payment of the contract price; and a reservation of P50,000.00 shall be paid by
petitioner. A final deed of sale shall be executed by respondents upon full payment of the
contract price, with petitioner bearing the costs of the taxes. Written on the contract is the
note: Received the amount of Five Hundred Thousand Pesos only (P500,000.00)
representing Partial Payment of Full Downpayment.

Two years after the execution of the Contract to Sell, petitioner filed against respondents
an action for Specific Performance, asking the Regional Trial Court (RTC) of Manila, Branch
50, to order respondents to execute a final deed of sale, plus damages and costs. Petitioner
contended that he already fulfilled his end of the bargain by paying the stipulated amount,
including the taxes, or a total of P2,050,000.00, broken down as follows:

UCPB Check No. 157244 dated March 3, 1993 P 50,000.00

 UCPB Check CMRO 19635 dated Jan. 19, 1994 P 500,000.00
UCPB Check CMRO 40154 dated March 8, 1994 P 300,000.00
Private receipt made on March 9, 1994 P 500,000.00
UCPB Check CMRO 40154 dated March 22, 1994 P 200,000.00
Private receipt in the contract to sell P 500,000.00[3]

Respondents denied petitioners allegations, claiming that petitioner is yet to fully pay the
agreed price, having paid only P1,000,000.00, exclusive of the P50,000.00 reservation
fee. According to respondents, petitioner paid P500,000.00 upon the execution of the
Contract to Sell, as acknowledged in the Contract to Sell, and another P500,000,00 in two
separate payments made in March 1994. Thus, respondents set up a counter-claim by
asking for the rescission of the contract due to petitioners refusal to abide by its terms.

On September 17, 1998, the RTC rendered a Decision dismissing the complaint and ordering
the rescission of the Contract to Sell. The dispositive portion of the Decision reads:

WHEREFORE, the foregoing facts considered, the case against the defendant is hereby
dismissed. The reciprocal obligation between the plaintiff and the defendant is hereby
ordered rescinded under Article 1191 of the Civil Code. This Article recognizes an implied or
tacit revolutionary condition in reciprocal obligations. It is a condition imposed exclusively
by law, even if there is no corresponding agreement between the parties. In reciprocal
obligations, when one party has performed his part of the contract, the other party incurs in
delay hence, the party who has performed or is ready and willing to perform may rescind the
obligation if the other does not perform or is not ready and willing to perform (Civil Code of
the Phils. Vol. IV Tolentino, 1986 ed p. 176).

Under the circumstances the failure of the plaintiff to pay their correlative obligation was not
a casual breach but it was a breach of contract tainted with fraud or malice (dolo) as
distinguished from mere negligence (culpa) (Luzon Brokerage Co., Inc. vs. Wantime
Building Co., Inc. 43 SCRA 93).

The amount of P1,100,000.00, the amount admitted by the defendant to have been paid by the
plaintiffs and received by herein defendant is hereby declared as forfeited in favor of the
defendants to be applied as rental of the house from June of 1994 up to the time of rendition
of judgment and the payment of P20,000.00 a month from the time of rendition of the
judgment until the plaintiff and all persons claiming rights under him shall have finally
vacated the premises, and to pay the amount of P200,000.00 by way of attorneys fees for
unjustly refusing to comply with their obligation in bad faith thus forcing the defendants to
litigate this matter in court. The amount of P200,000.00 by way of moral damages and to pay
the amount of P100,000.00 by way of exemplary damages and cost.

SO ORDERED.[4]

Petitioner appealed to the Court of Appeals (CA), docketed as CA-

G.R. CV No. 62803, and in a Decision [5] promulgated on June 22, 2001, the CA affirmed the
RTC Decision, with modification as to the amount of damages. The dispositive portion of
the CA Decision reads:

IN VIEW OF ALL THE FOREGOING, the appealed Decision is hereby AFFIRMED with
the modification that the award of attorneys fees as well as moral damages is reduced
to P75,000.00 and P50,000.00, respectively. Costs against appellant.

SO ORDERED.[6]

Petitioner sought reconsideration of the decision but this was denied by the CA in its
Resolution dated January 10, 2002.[7]

Hence, this petition based on the following assignment of errors:

First Assigned Error

THE TRIAL COURT GRAVELY ERRED IN CONCLUDING THAT THE PLAINTIFF

VIOLATED SECTIONS 20[8] AND 22[9] OF RULE 132 OF THE RULES OF COURT.

Second Assigned Error

THE TRIAL COURT GRAVELY ERRED IN HOLDING THAT PLAINTIFF MR. GULAM
DID NOT OR WAS INCOMPETENT TO TESTIFY ON DUE EXECUTION OF THE
RECEIPT IN THE CONTRACT TO SELL, NORHAYA, THE PLAINTIFFS WIFE
SHOULD HAVE BEEN ASKED INSTEAD SINCE SHE WOULD BE COMPETENT ON
THIS MATTER BUT THE ISSUE ON SAID RECEIPT ON THE CONTRACT TO SELL
WAS INSTEAD AVOIDED ON DIRECT EXAMINATION, MR. GULAM WAS ALSO
DECLARED INCOMPETENT TO TESTIFY ON THE MARCH 9, 1994 RECEIPT FOR
THE AMOUNT OF P500,000.00 SINCE IT WAS NORHAYA WHO MADE THE
PAYMENT THEREOF, MR GULAM CANNOT TESTIFY ON THE DUE EXECUTION
OF SAID RECEIPT.

Fourth Assigned Error [sic]

THE TRIAL COURT GRAVELY ERRED IN HOLDING THAT THE PLAINTIFF

MISERABLY FAILED TO ESTABLISH THEIR CLAIM, THEIR CAUSE OF ACTION
AGAINST DEFENDANTS ARE HEREBY DISMISSED AGAINST THE DEFENDANTS
HAVING PROVED OR ESTABLISHED THEIR CLAIM THROUGH PREPONDERANCE
OF EVIDENCE THAT THE PLAINTIFF TRIED TO AVOID THEIR OBLIGATION IN
RECIPROCAL ONE BY FRAUDULENT MEANS WITH THE USE OF CLEAVER [sic]
MANIPULATIONS IN EVIDENT BAD FAITH SHOWS THAT THE DEFENDANTS ARE
ENTITLED TO RESCISSION OF THE CONTRACT.

Fifth Assigned Error [sic]

THE TRIAL COURT GRAVELY ERRED IN HOLDING THAT THE AMOUNT

OF P1,100,000.00 ADMITTED BY THE DEFENDANT [sic] TO HAVE BEEN RECEIVED
BY PLAINTIFFS AND RECEIVED TO BE APPLIED AS PAYMENT OR RENTAL OF
THE HOUSE FROM JUNE 1994 TO THE TIME OF RENDITION OF THE JUDGMENT
 AND PAYMENT OF P20,000.00 A MONTH FROM THE TIME OF RENDITION OF THE
JUDGMENT UNTIL THE PLAINTIFF AND ALL PERSONS CLAIMING RIGHTS
UNDER HIM SHALL HAVE FINALLY VACATED THE PREMISES.[10]

The Court notes that the above-quoted assignment of errors is an exact reproduction of
assigned errors I, III, IV and V raised in the appeal brief filed by petitioner with the CA,
except assigned error II,[11] which was not raised in the present petition.

As Comment, respondents adopted their Defendants-Appellees Brief filed with the

CA.

Petitioners arguments basically hinge on his claim of overpayment. These arguments,

however, do not raise any question of law. As stated at the outset, the principal issue in this
case, i.e., whether petitioner has fully paid the stipulated price under the Contract to Sell,
thus entitling him to the execution of a final deed of sale, is one of fact, which is beyond
the province of Rule 45 of the Rules of Court.
As earlier mentioned, the exceptions adverted to, to wit:[12]
(1) when the factual findings of the Court of Appeals and the trial court are
contradictory;

(2) when the findings are grounded entirely on speculations, surmises, or conjectures;

(3) when the inference made by the Court of Appeals from its findings of fact is
manifestly mistaken, absurd, or impossible;

(4) when there is grave abuse of discretion in the appreciation of facts;

(5) when the appellate court, in making its findings, goes beyond the issues of the
case, and such findings are contrary to the admissions of both appellant and appellee;

(6) when the judgment of the Court of Appeals is premised on a misapprehension of

facts;

(7) when the Court of Appeals fails to notice certain relevant facts which, if properly
considered, will justify a different conclusion;

(8) when the findings of fact are themselves conflicting;

(9) when the findings of fact are conclusions without citation of the specific evidence
on which they are based; and

(10) when the findings of fact of the Court of Appeal are premised on the absence of
evidence but such findings are contradicted by the evidence on record.

are not present in the present case.

 Moreover, the Court finds no plausible reason to analyze and weigh all over again the
evidence already considered by the RTC and the CA, especially since these findings are not
tainted with any capriciousness or palpable error. The rule is that where the factual findings
of both courts are in accord, the same are binding on this Court.[13]

The RTC sifted through the evidence on record, testimonial as well as

documentary, to determine the veracity of petitioners claim that there was overpayment, due
to the alleged issuance of several checks and cash payments to respondents, and ruled that
petitioner failed to prove his claim of overpayment. It was the RTCs finding that the receipt
acknowledging the payment of the sum of P500,000.00, which allegedly was signed by
respondent Ricarda Santos (Santos) on March 9, 1994 and which was examined by the NBI,
cannot be given any credence because Santos denied having furnished any specimen
signature from which the signature in the receipt may be compared, in violation of Sections
20 and 22 of the Rules of Court. Instead, the RTC gave weight to the conclusion of the PNP
Crime Laboratory that the documents were written by two different persons. The RTC also
observed that the issuance by petitioner of UCPB Check No. CMR0 19635 dated January 19,
1994 for P500,000.00 is actually the payment acknowledged in the contract as it coincides
with the stipulation in the contract wherein petitioner had to pay P500,000.00 on the first
month of construction, which in fact, started in January 1994. The RTC also ruled that
petitioner cannot testify on the alleged receipt of these contested amounts as he was not
present during the time that it was made, since according to petitioner himself, it was his
wife Norhaya who allegedly made the payments.[14]The RTC, meanwhile, gave credence to
respondents claim that petitioner is yet to pay the full amount of the purchase price, relying
on the two letters sent by petitioners wife Norhaya to Santos admitting that the amount
of P1,100,000.00 has already been given to respondents, and a balance of P446,036.00 in the
purchase price remains, exclusive of the cost of labor and improvements, and which Norhaya
seeks to reimburse from respondents.[15]

The CA sustained the RTCs findings, stating that the receipt dated March 9, 1994 is a
forgery. It also ruled that respondents are entitled to a rescission of the Contract to Sell as
petitioner failed to comply with his obligations under the contract, to wit:

In the final analysis, it is apparent that appellant has not kept his own end of the bargain in
the Contract. A computation of the payments made based on evidence on hand, without
including the bogus receipt dated March 9, 1994, would eventually show that appellant had
only paid a total of P1,100,000.00, thus leaving an unpaid balance of more or
less P600,000.00 (Exhibit 13). This is bolstered by the appellants admission in a letter
 addressed to appellees through his counsel (Exhibit 3) wherein he asserted that he had already
paid P1,500,000.00. Likewise, in a letter by appellants wife to appellees, admitting having
paid only P1,500,000.00. This is contrary to his later claim that he had already paid a total
of P2,050,000.00 by March 22, 1994. If this were true, why was appellants wife still paying
for the house on May 7, 1994 (Exhibits 15 and 15-A), as correctly observed by appellees.

All told, We are in accord with the finding of the lower court that appellant committed a
substantial breach when he tried to weasel out of his obligation through fraudulent means by
utilizing a forged check and receipt. Appellants vain attempt to cloak with legal color his
devious scheme to acquire at all costs the house and lot at the expense of the rightful
owner. Correspondingly, appellees are entitled to avail of the provisions of Article 1191 of
the Civil Code, which authorizes an injured party in a reciprocal obligation to rescind an
obligation to be decreed by the court, in case one of the obligors should not comply with what
is incumbent upon him. Surely, the introduction of forged documents can be considered a
significant breach in the reciprocal obligation as would warrant the resolution of the
contract. [16]
xxxx

The Court agrees with the foregoing evaluation of both the RTC and the CA, as it
finds support in the evidence on record. Despite his protestations, petitioner failed to show
any reversible error committed by the RTC and the CA.

Petitioner, however, insists that the CA erred in holding that his testimony with regard to the
payments made by his wife was hearsay. Petitioner argues that the purpose of such testimony
was merely to establish the fact that such statement was made.

It is a hornbook doctrine of evidence that a witness can testify only to those facts
which he knows of his personal knowledge, which means those facts which are derived from
his perception.[17] A witness may not testify as to what he merely learned from others either
because he was told or read or heard the same. Such testimony is considered hearsay and
may not be received as proof of the truth of what he has learned. The hearsay rule is based
upon serious concerns about the trustworthiness and reliability of hearsay evidence inasmuch
as such evidence are not given under oath or solemn affirmation and, more importantly, have
not been subjected to cross-examination by opposing counsel to test the perception, memory,
veracity, and articulateness of the out-of-court declarant or actor upon whose reliability on
which the worth of the out-of-court statement depends.[18]

True, petitioners statements may be considered as independently relevant statements

and may be admissible not as to the veracity thereof but to the fact that they had been thus
uttered.[19] However, the admissibility of his testimony to such effect should not be equated
with its weight and sufficiency.[20] Admissibility of evidence depends on its relevance and
competence, while the weight of evidence pertains to evidence already admitted and its
tendency to convince and persuade.[21] In this case, both the RTC and the CA refused to give
credence to petitioners testimony, and the Court finds no reason to doubt the assessments
made by both courts. Even assuming that his wife, indeed, told him that payments were made
on these dates, still, it does not follow that it is sufficient proof to establish his claim of
overpayment. These should be weighed vis--vis the other evidence on record, which, as
appraised by the RTC and the CA, do not support petitioners claim.
Although Norhaya testified, she did not, however, give any credible testimony
regarding these alleged payments. In fact, Norhaya failed to testify on the alleged separate
payment made in the amount of P500,000.00, which was annotated on the Contract to
Sell.[22] With regard to the alleged payment and receipt made on March 9, 1994,
respondent Santos categorically denied having received any payment on said
date.[23] Moreover, the RTC and the CA chose to ignore her testimony, and instead gave
weight to the testimony of the PNP Crime Laboratory Document Examiner that the signature
appearing on the receipt was not made by respondent Santos based on her standard
signature.[24] On this score, the Court will not interfere with the judgment exercised by the
RTC and the CA since it is in the best position to assess the credibility of witnesses and their
testimonies because of its unique opportunity to observe the witnesses firsthand and note
their demeanor, conduct and attitude under grilling examination. As such, its evaluation of
the credibility of witnesses is accorded great respect.[25]

Finally, petitioner laments the disregard made on the NBI finding that the signature of
respondent Santos appearing on the March 9, 1994 receipt was genuine. On this score, it
should be stressed that although they may have probative value, reception in evidence of
expert testimonies is within the discretion of the court.[26] The RTC and the CA did not
commit any error in disregarding the NBIs finding since it was convincingly shown that the
specimen signature of respondent Santos from which the signature on the receipt was
compared, was not actually supplied by Santos but by petitioner. Thus, as correctly stated by
the CA:

A fortiori, We agree with the trial court that the NBI expert is considered to have no adequate
knowledge of the genuine signatures of the parties whose signatures are claimed to be forged,
for this witness was not in possession of the genuine signatures of the appellees. Moreover,
opinion of handwriting experts are not necessarily binding upon the courts, the experts
function being to place before the court data upon which the court can form its own opinion.
x x x[27]

Verily, the RTC and the CA did not err in dismissing petitioners complaint and
ordering the rescission of the Contract to Sell.
 WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals
dated June 22, 2001 in CA-G.R. CV No. 62803 and its Resolution dated January 10,
2002 are hereby AFFIRMED.

Costs against petitioner.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice

Chairperson

CONSUELO YNARES-SANTIAGO ROMEO J. CALLEJO, SR.

Associate Justice Associate Justice

 MINITA V. CHICO-NAZARIO

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the case was assigned
to the writer of the opinion of the Courts Division.

ARTEMIO V. PANGANIBAN
Chief Justice

[1]
Air Philippines Corporation v. International Business Aviation Services Philippines, Inc., G.R. No. 151963, September 9, 2004,
438 SCRA 51, 76.
[2]
Fuentes v. Court of Appeals, 335 Phil. 1163, 1168 (1997).
[3]
Records, pp. 1-4.
[4]
Id. at 372-373.
[5]
Penned by Associate Justice Conrado M. Vasquez, Jr., with Associate Justices Martin S. Villarama, Jr. and Sergio L. Pestao,
concurring.
[6]
CA rollo, p. 137.
[7]
Id. at 160.
[8]
Proof of Private Document.
[9]
How Genuineness of Authenticity Proved.
[10]
Rollo, pp. 13-14.
[11]
II. THE TRIAL COURT GRAVELY ERRED IN HOLDING THAT THE PLAINTIFF AND HIS WITNESS LACKS THAT
CANDOR AND TRUTHFULNESS AS THEY TRIED TO SEEK REFUGE AND BASED THEIR CLAIM ON
SPECULATIONS, THEIR CAUSE OF ACTION NOT HAVING ANY LEGS TO STAND ON MUST FALL AND
ARE THEREFORE ESTOPPED FROM DENYING THE EXISTENCE OF DEFENDANTS (sic) CLAIM.
[12]
Fuentes v. Court of Appeals, supra note 2, at 1168-1169.
[13]
David v. Manila Bulletin Publishing Company, Inc., 400 Phil. 838, 845. (2000).
[14]
Records, pp. 364-371.
[15]
See Exhibits 11 to 12-D, id. at 273-278.
[16]
CA rollo, p. 136.
[17]
RULES OF COURT, Rule 130, Section 36.
[18]
Country Bankers Insurance Corporation v. Lianga Bay and Community Multi-Purpose Cooperative, Inc., 425 Phil. 511, 520
(2002).
[19]
People v. Velasquez, G.R. Nos. 132635 & 14387275, February 21, 2001, 352 SCRA 455, 476.
[20]
People v. Manhuyod, Jr., 352 Phil. 866, 885 (1998).
[21]
People v. Navarro, 357 Phil. 1010, 1031 (1998).
[22]
See TSN, September 25 and October 2, 1996.
[23]
TSN, March 12, 1997, pp. 18-19.
[24]
TSN, October 29, 1997, pp. 22-27.
[25]
Cirelos v. Hernandez, G.R. No. 146523, June 15, 2006.

[26]
Cebu Shipyard and Engineering Works, Inc. v. William Lines, Inc., 366 Phil. 439, 454 (1999).
[27]
CA rollo, p. 135.
 Republic of the Philippines
Supreme Court
Manila

THIRD DIVISION

LEODEGARIO BAYANI, G.R. No. 155619

Petitioner,

Present:

YNARES-SANTIAGO, J.,

- versus - Chairperson,

AUSTRIA-MARTINEZ,

CHICO-NAZARIO,

NACHURA, and

REYES, JJ.

PEOPLE OF THE

PHILIPPINES, Promulgated:

Respondent. August 14, 2007

x----------------------------------------------x
 DECISION

AUSTRIA-MARTINEZ, J.:

Leodegario Bayani (petitioner) was charged with Violation of Batas Pambansa Blg. 22 in an
Information, to wit:

That on or about the 20th day of August 1992, in the Municipality of Candelaria, Province of
Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused did then and there willfully, unlawfully and feloniously issue and make out Check
No. 054924 dated August 26, 1992, in the amount of TEN THOUSAND PESOS
(P10,000.00) Philippine Currency, drawn against the PS Bank, Candelaria Branch,
Candelaria, Quezon, payable to Cash and give the said check to one Dolores Evangelista in
exchange for cash although the said accused knew fully well at the time of issuance of said
check that he did not have sufficient funds in or credit with the drawee bank for payment, the
same was dishonored and refused payment for the reason that the drawer thereof, the herein
accused, had no sufficient funds therein, and that despite due notice said accused failed to
deposit the necessary amount to cover said check, or to pay in full the amount of said check,
to the damage and prejudice of said Dolores Evangelista in the aforesaid amount.

Contrary to law.[1]
After trial, petitioner was convicted by the Regional Trial Court (RTC) of Lucena City,
Branch 55, in a Decision rendered on November 20, 1995, the dispositive portion of which
reads:

WHEREFORE, in view of the foregoing considerations, this Court finds the accused
Leodegario S. Bayani, GUILTY beyond reasonable doubt of violating Section 1, Batas
Pambansa Blg. 22, and hereby sentences him to suffer one (1) year imprisonment and a fine
of Five Thousand (P5,000.00) Pesos, with subsidiary imprisonment in case of insolvency. He
shall likewise pay the complaining witness, Dolores Evangelista, the sum of P10,000.00, the
value of Check No. 054924 he issued and drew against PS Bank, Candelaria Branch, which
was subsequently dishonored by the said drawee bank for insufficiency of funds.

The accused Leodegario Bayani is further ordered to pay Dolores Evangelista the amount
of P5,000.00 representing attorney's fees. He shall also pay double the cost of this suit.

SO ORDERED.[2]

In convicting petitioner, the trial court made the following findings of facts:
 1. That the Philippine Savings Bank, Candelaria Branch, has issued to the accused check
booklet (Exh. C) on December 12, 1991, with the Check No. 054924 as one of those included
in said booklet of checks;

2. That the said Check No. 054924 dated August 26, 1992, was drawn and issued payable to
Cash in the amount of P10,000.00; said drawn check was made to apply to the account of the
accused, Leodegario S. Bayani whose name appears therein in bold print at the upper portion
of the said check;

3. That said Check No. 054924, is a post-dated check, was subsequently dishonored by the
drawee bank, PS Bank, Candelaria Branch, for insufficiency of funds;
4. That the checking account of the accused Leodegario S. Bayani with PS Bank, Candelaria
Branch, was closed on September 1, 1992 (Exh. B-3), which at the time had only remaining
deposit in the amount of P2,414.96 (Exh. B-4).[3]

The trial court also made the following findings:

The check in question is postdated, issued and drawn on August 20, 1992, and dated August
26, 1992. It was presented to complaining witness, Dolores Evangelista, for encashment by
Alicia Rubia whom the former knows. After the check was deposited with the bank, it was
returned to Evangelista for insufficiency of funds (Exh. A-5). Thereafter, she pursued the
following events to demand payment of the value of the check:

xxxx

After the confrontation at the office of Atty. Emmanuel Velasco, Evangelista has had another
confrontation with the accused Bayani and Alicia Rubia at Candelaria municipal building before Brgy.
Captain Nestor Baera, but again the accused and Rubia pointed to each other for the settlement of
the amount involved in the check in question.

Of these two (2) confrontations Evangelista had with the accused Bayani and Alicia Rubia,
including the chances to have met or known the complaining witness Evangelista since 1977 up to
the filing of the instant case in the Municipal Trial Court of Candelaria, all what the accused
Leodegario Bayani could say were flat denials of having talked with, or otherwise met Evangelista,
regarding the latters claim of payment of the value of Check No. 054924, admittedly from the check
booklet of the said accused Bayani issued by PS Bank, Candelaria Branch.[4]

On appeal, the Court of Appeals (CA)[5] affirmed in toto the trial courts decision. The CAs
Decision dated January 30, 2002 provides for the following dispositive portion:

WHEREFORE, and it appearing from the circumstances of both the offense and the offender
which does not indicate good faith or a clear mistake of fact in accordance with the
Administrative Circular No. 13-2001, the judgment appealed from is AFFIRMED in toto,
with costs.

SO ORDERED.[6]
Thus, herein petition for review on certiorari under Rule 45, Rules of Court, with the
following assignment of errors:

THE COURT OF APPEALS, WITH DUE RESPECT, ERRED IN REFUSING TO ACQUIT

THE ACCUSED DESPITE THE CONVICTION OF THE TRIAL COURT IS UTTERLY
BASED ON HEARSAY EVIDENCE;

THE COURT OF APPEALS ERRED IN CONVICTING THE ACCUSED DESPITE THE

CONSIDERATION FOR THE ISSUANCE OF THE CHECK WAS NOT DULY
ESTABLISHED;

THE TRIAL COURT AND THE COURT OF APPEALS ERRED WHEN THEY
CONVICTED THE ACCUSED BASED ON THE WEAKNESS OF THE LATTER'S
EVIDENCE AND NOT ON THE STRENGTH OF PROSECUTION'S EVIDENCE;

THE TRIAL COURT AND THE COURT OF APPEALED (sic) ERRED IN CONVICTING
THE ACCUSED SOLELY ON THE BASES OF PRESUMPTIONS.[7]

On the other hand, the Office of the Solicitor General (OSG), representing respondent,
argues that: (1) petitioners denial of his liability for Check No. 05492 cannot overcome the
primordial fact that his signature appears on the face of such check; (2) want of consideration
is a personal defense and is not available against a holder in due course; and (3) the
constitutional presumption of innocence was overcome by the requisite quantum of proof.[8]

Well-settled is the rule that the factual findings and conclusions of the trial court and the CA
are entitled to great weight and respect, and will not be disturbed on appeal in the absence of
any clear showing that the trial court overlooked certain facts or circumstances which would
substantially affect the disposition of the case. Jurisdiction of this Court over cases elevated
from the CA is limited to reviewing or revising errors of law ascribed to the CA, whose
factual findings are conclusive and carry even more weight when said court affirms the
findings of the trial court, absent any showing that the findings are totally devoid of support
in the record or that they are so glaringly erroneous as to constitute serious abuse of
discretion.[9]

The Court sustains the CA in affirming petitioners conviction by the RTC.

Petitioner denies having issued the check subject of this case. He argues that the evidence
pinpointing him as the signatory on the check is merely hearsay.

Section 36 of Rule 130 of the Rules of Court provides for the rule on hearsay evidence, to
wit:
 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 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. Hence, information that is relayed to the former by the latter
before it reaches the court is considered hearsay.[10]

In the present case, complainant Evangelista testified that she was approached by Alicia
Rubia who told her that she was requested by petitioner to have the check exchanged for
cash, as he needed money badly.[11] Obviously, Evangelistas testimony is hearsay since she
had no personal knowledge of the fact that petitioner indeed requested Rubia to have the
check exchanged for cash, as she was not personally present when petitioner supposedly
made this request. What she testified to, therefore, was a matter that was not derived from
her own perception but from Rubias.

However, petitioner is barred from questioning the admission of Evangelistas testimony even
if the same is hearsay. Section 34, Rule 132 of the Rules of Court requires that the trial court
shall not consider any evidence which has not been finally offered. Section 35 of the same
Rule provides that as regards the testimony of a witness, the offer must be made at the time
the witness is asked to testify. And under Section 36 of the same Rule, objection to a
question propounded in the course of the oral examination of a witness shall be made as soon
as the ground therefor becomes reasonably apparent.

Thus, it has been held that in failing to object to the testimony on the ground that it
was hearsay, the evidence offered may be admitted.[12] Since no objection to the
admissibility of Evangelistas testimony was timely made from the time her testimony was
offered[13] and up to the time her direct examination was conducted[14] then petitioner has
effectively waived[15] any objection to the admissibility thereof and his belated attempts to
have her testimony excluded for being hearsay has no ground to stand on.

While Evangelistas statement may be admitted in evidence, it does not necessarily follow
that the same should be given evidentiary weight. Admissibility of evidence should not be
equated with weight of evidence.[16] In this regard, it has been held that although hearsay
evidence may be admitted because of lack of objection by the adverse partys counsel, it is
nonetheless without probative value,[17] unless the proponent can show that the evidence falls
within the exception to the hearsay evidence rule.[18]

In this case, Evangelistas testimony may be considered as

an independently relevant statement, an exception to the hearsay rule, the purpose of which
is merely to establish the fact that the statement was made or the tenor of
such statement. Independent of the truth or the falsity of the statement, the fact that it has
been made is relevant.[19] When Evangelista said that Rubia told her that it was petitioner
who requested that the check be exchanged for cash, Evangelista was only testifying that
Rubia told her of such request.It does not establish the truth or veracity of Rubias statement
since it is merely hearsay, as Rubia was not presented in court to attest to such utterance. On
this score, evidence regarding the making of such independently relevant statement is not
secondary but primary, because the statement itself may (a) constitute a fact in issue or (2) be
circumstantially relevant as to the existence of that fact.[20] Indeed, independent of its truth or
falsehood, Evangelistas statement is relevant to the issues of petitioners falsehood,
his authorship of the check in question and consequently, his culpability of the offense
charged.

In any event, petitioners conviction did not rest solely on Evangelistas testimony. There are
other pieces of evidence on record that established his guilt, to wit: the subject check was
included in the booklet of checks issued by the PSBank to petitioner; the subject check was
made to apply to the account of petitioner whose name appears on the upper portion of the
said check; and most telling is that petitioner never categorically denied that the signature
appearing on the check was his. What petitioner claimed was that the signature on the check
was similar to his signature, although there were differences, viz.:

Q: I am showing to you a certain document purpurting (sic) to be PSB Check No. 054924,
will you please look at this particular document and tell this Honorable Court if this
particular check is one of those issued to you by the Philippine Savings Bank?
A: Yes, sir.

Q: Now, there appears a signature above a line located at the bottom of the said check which
appears to be Leodegario Bayani, please tell this Honorable Court if you know this
particular signature?
A: Although it is similar to my signature I could not tell if this is my signature, sir.

Q: Please explain to this Honorable Court why is it so?

A: Because there are some differences, sir.

Q: Please tell this Honorable Court the particular differences you are referring to?
A: At the middle of the signature I usually put my middle initial and also the beginning of my
family name is almost connected with each other, sir.[21]
Neither did petitioner claim that the signature was a forgery. Had he done so, then a forensic
examination of the signature in appearing on the check and his signature would have been
made in order to determine the genuineness or authenticity of the signature appearing on the
check.

All these pieces of evidence, taken together, inevitably support the finding of petitioners
guilt beyond reasonable doubt of the offense charged.

Petitioner also argues that he cannot be convicted due to the prosecutions failure to prove
that the subject check was issued to apply on account or for value.

The elements of the offense penalized by Batas Pambansa Blg. 22 are:

(1) the making, drawing, and issuance of any check to apply for account or for value;

(2) the knowledge of the maker, drawer, or issuer that at the time of issue there are no
sufficient funds in or credit with the drawee bank for the payment of such check in
full upon its presentment; and

(3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or
credit or dishonor for the same reason had not the drawer, without any valid cause,
ordered the bank to stop payment.[22]

As regards the first element, it is presumed, upon issuance of the checks and in the absence
of evidence to the contrary, that the same was issued for valuable consideration.[23]Under the
Negotiable Instruments Law, it is presumed that every party to an instrument acquired the
same for a consideration or for value.[24] In alleging that there was no consideration for the
subject check, it devolved upon petitioner to present convincing evidence to overthrow the

presumption and prove that the check was issued without consideration.

Valuable consideration may consist either of some right, interest, profit or benefit accruing to
the party who makes the contract; or some forbearance, detriment, loss of some
responsibility to act; or labor or service given, suffered or undertaken by the other side. It is
an obligation to do or not to do, in favor of the party who makes the contract, such as the
maker or indorser.[25] It was shown in this case that the check was issued and exchanged for
cash. This was the valuable consideration for which the check was issued.

At any rate, what the law punishes is the mere act of issuing a bouncing check, not the
purpose for which it was issued or the terms and conditions relating to its issuance. The law
does not make any distinction on whether the checks within its contemplation are issued in
payment of an obligation or to merely guarantee the obligation. The thrust of the law is to
prohibit the making of worthless checks and putting them in circulation.[26]

Thus, the Court cannot sustain petitioners stance that the prosecution failed to prove his
guilt. As ruled in Lee v. Court of Appeals:
Proof beyond reasonable doubt does not mean absolute certainty. Suffice it to say the law
requires only moral certainty or that degree of proof which produces conviction in a
prejudiced mind.[27]

After going over the evidence presented by the prosecution and the defense in this case, the
Court finds no reason to overturn the judgment of conviction rendered by the RTC, as
affirmed by the CA, as the prosecution sufficiently proved petitioner's guilt beyond
reasonable doubt.

WHEREFORE, the petition is DENIED.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

WE CONCUR:
 CONSUELO YNARES-SANTIAGO
Associate Justice

Chairperson

MINITA V. CHICO-NAZARIO ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

RUBEN T. REYES

Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO

Associate Justice

Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons

Attestation, it is hereby certified that the conclusions in the above Decision had been reached

in consultation before the case was assigned to the writer of the opinion of the Courts

Division.
 REYNATO S. PUNO

Chief Justice

[1]
Records, pp. 2-3.
[2]
Id. at 251.
[3]
Id. at 247-248.
[4]
Id. at 248-249.
[5]
Penned by Associate Justice Teodoro P. Regino, with Associate Justices Eugenio S. Labitoria and Rebecca De Guia-Salvador,
concurring.
[6]
CA rollo, p. 91.
[7]
Rollo, p. 15.
[8]
Id. at 106-107.
[9]
Ty v. People of the Philippines, G.R. No. 149275, September 27, 2004, 439 SCRA 220, 228-229.
[10]
Bon v. People of the Philippines, G.R. No. 152160, January 13, 2004, 419 SCRA 101, 109.
[11]
TSN, June 29, 1993, p. 14.
[12]
Cabugao v. People of the Philippines, G.R. No. 158033, July 30, 2004, 435 SCRA 624, 633.
[13]
TSN, June 29, 1993, pp. 4-6.
[14]
Id.
[15]
Maunlad Savings and Loan Association, Inc. v. Court of Appeals, 399 Phil. 590, 599 (2000).
[16]
People of the Philippines v. Parungao, 332 Phil. 917, 924 (1996).
[17]
De la Torre v. Court of Appeals, 355 Phil. 826, 638 (1998).
[18]
PNOC Shipping and Transport Corporation v. Court of Appeals, 358 Phil. 38, 54 (1998).
[19]
Lea Mer Industries, Inc. v. Malayan Insurance, Co., Inc., G.R. No. 161745, September 30, 2005, 471 SCRA 698, 714.
[20]
Republic of the Philippines v. Alejaga, Sr., 441 Phil. 656, 672 (2002).
[21]
TSN, November 23, 1994, pp. 10-11.
[22]
Marigomen v. People of the Philippines, G.R. No. 153451, May 26, 2005, 459 SCRA 169, 179.
[23]
Ty v. People of the Philippines, supra note 9, at 233.
[24]
NEGOTIABLE INSTRUMENTS LAW, Sec. 24.
[25]
Lee v. Court of Appeals, G.R. No. 145498, January 17, 2005, 448 SCRA 455, 474-475.
[26]
Ty v. People of the Philippines, supra note 9, at 235
[27]
Lee v. Court of Appeals, supra note 25, at 476.
 THIRD DIVISION

LEA MER INDUSTRIES, INC., G.R. No. 161745

Petitioner,
Present
Panganiban, J.,
Chairman,
- versus - Sandoval-Gutierrez,
Corona,
Carpio Morales, and
Garcia, JJ
Promulgated:
MALAYAN INSURANCE CO., INC.,*
Respondent. September 30, 2005
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x

DECISION

PANGANIBAN, J.:
 C ommon carriers are bound to observe extraordinary diligence in their

vigilance over the goods entrusted to them, as required by the nature of

their business and for reasons of public policy. Consequently, the law

presumes that common carriers are at fault or negligent for any loss or damage to

the goods that they transport. In the present case, the evidence submitted by
petitioner to overcome this presumption was sorely insufficient.

The Case

Before us is a Petition for Review[1] under Rule 45 of the Rules of Court,

assailing the October 9, 2002 Decision[2] and the December 29, 2003 Resolution[3] of
the Court of Appeals (CA) in CA-GR CV No. 66028. The challenged Decision
disposed as follows:

WHEREFORE, the appeal is GRANTED. The December 7, 1999

decision of the Regional Trial Court of Manila, Branch 42 in Civil Case No. 92-
63159 is hereby REVERSED and SET ASIDE. [Petitioner] is ordered to pay
the [herein respondent] the value of the lost cargo in the amount
of P565,000.00. Costs against the [herein petitioner].[4]

The assailed Resolution denied reconsideration.

 The Facts

Ilian Silica Mining entered into a contract of carriage with Lea Mer Industries,
Inc., for the shipment of 900 metric tons of silica sand valued
at P565,000.[5]Consigned to Vulcan Industrial and Mining Corporation, the cargo
was to be transported from Palawan to Manila. On October 25, 1991, the silica sand
was placed on board Judy VII, a barge leased by Lea Mer.[6] During the voyage, the
vessel sank, resulting in the loss of the cargo.[7]

Malayan Insurance Co., Inc., as insurer, paid Vulcan the value of the lost
cargo.[8] To recover the amount paid and in the exercise of its right of subrogation,
Malayan demanded reimbursement from Lea Mer, which refused to comply.
Consequently, Malayan instituted a Complaint with the Regional Trial Court (RTC)
of Manila on September 4, 1992, for the collection of P565,000 representing the
amount that respondent had paid Vulcan.[9]

On October 7, 1999, the trial court dismissed the Complaint, upon finding
that the cause of the loss was a fortuitous event.[10] The RTC noted that the vessel
had sunk because of the bad weather condition brought about by Typhoon Trining.
The court ruled that petitioner had no advance knowledge of the incoming typhoon,
and that the vessel had been cleared by the Philippine Coast Guard to travel from
Palawan to Manila.[11]

Ruling of the Court of Appeals

Reversing the trial court, the CA held that the vessel was not seaworthy when it
sailed for Manila. Thus, the loss of the cargo was occasioned by petitioners fault,
not by a fortuitous event.[12]

Hence, this recourse.[13]

The Issues

Petitioner states the issues in this wise:

A. Whether or not the survey report of the cargo surveyor, Jesus Cortez, who
had not been presented as a witness of the said report during the trial of this
case before the lower court can be admitted in evidence to prove the alleged
facts cited in the said report.

B. Whether or not the respondent, Court of Appeals, had validly or legally

reversed the finding of fact of the Regional Trial Court which clearly and
unequivocally held that the loss of the cargo subject of this case was caused
by fortuitous event for which herein petitioner could not be held liable.

C. Whether or not the respondent, Court of Appeals, had committed serious

error and grave abuse of discretion in disregarding the testimony of the
witness from the MARINA, Engr. Jacinto Lazo y Villegal, to the effect that the
vessel Judy VII was seaworthy at the time of incident and further in
disregarding the testimony of the PAG-ASA weather specialist, Ms. Rosa
Barba y Saliente, to the effect that typhoon Trining did not hit Metro Manila or
Palawan.[14]
In the main, the issues are as follows: (1) whether petitioner is liable for the loss of

the cargo, and (2) whether the survey report of Jesus Cortez is admissible in
evidence.

The Courts Ruling

The Petition has no merit.

First Issue:
Liability for Loss of Cargo

Question of Fact

The resolution of the present case hinges on whether the loss of the cargo was due

to a fortuitous event. This issue involves primarily a question of fact,

notwithstanding petitioners claim that it pertains only to a question of law. As a

general rule, questions of fact may not be raised in a petition for review. [15] The

present case serves as an exception to this rule, because the factual findings of the
appellate and the trial courts vary.[16] This Court meticulously reviewed the records,

but found no reason to reverse the CA.

Rule on Common Carriers

Common carriers are persons, corporations, firms or associations engaged in the

business of carrying or transporting passengers or goods, or both -- by land, water,

or air -- when this service is offered to the public for compensation. [17] Petitioner is
clearly a common carrier, because it offers to the public its business of transporting

goods through its vessels.[18]

Thus, the Court corrects the trial courts finding that petitioner became a private

carrier when Vulcan chartered it.[19] Charter parties are classified as contracts of
demise (or bareboat) and affreightment, which are distinguished as follows:
Under the demise or bareboat charter of the vessel, the charterer will
generally be considered as owner for the voyage or service stipulated. The
charterer mans the vessel with his own people and becomes, in effect, the
owner pro hac vice, subject to liability to others for damages caused by
negligence. To create a demise, the owner of a vessel must completely and
exclusively relinquish possession, command and navigation thereof to the
charterer; anything short of such a complete transfer is a contract of
affreightment (time or voyage charter party) or not a charter party at all.[20]

The distinction is significant, because a demise or bareboat charter indicates a

business undertaking that is private in character. [21] Consequently, the rights and

obligations of the parties to a contract of private carriage are governed principally by

their stipulations, not by the law on common carriers.[22]

The Contract in the present case was one of affreightment, as shown by the

fact that it was petitioners crew that manned the tugboat M/V Ayalit and controlled
the barge Judy VII.[23] Necessarily, petitioner was a common carrier, and the

pertinent law governs the present factual circumstances.

Extraordinary Diligence Required

Common carriers are bound to observe extraordinary diligence in their vigilance over

the goods and the safety of the passengers they transport, as required by the nature
of their business and for reasons of public policy.[24] Extraordinary diligence requires

rendering service with the greatest skill and foresight to avoid damage and

destruction to the goods entrusted for carriage and delivery.[25]

Common carriers are presumed to have been at fault or to have acted

negligently for loss or damage to the goods that they have transported. [26] This
presumption can be rebutted only by proof that they observed extraordinary

diligence, or that the loss or damage was occasioned by any of the following

causes:[27]
(1) Flood, storm, earthquake, lightning, or other natural disaster or calamity;
(2) Act of the public enemy in war, whether international or civil;
(3) Act or omission of the shipper or owner of the goods;
(4) The character of the goods or defects in the packing or in the containers;
(5) Order or act of competent public authority.[28]

Rule on Fortuitous Events

Article 1174 of the Civil Code provides that no person shall be responsible for a

fortuitous event which could not be foreseen, or which, though foreseen, was

inevitable. Thus, if the loss or damage was due to such an event, a common carrier

is exempted from liability.

Jurisprudence defines the elements of a fortuitous event as follows: (a) the

cause of the unforeseen and unexpected occurrence, or the failure of the debtors to

comply with their obligations, must have been independent of human will; (b) the
event that constituted the caso fortuito must have been impossible to foreseeor, if

foreseeable, impossible to avoid; (c) the occurrence must have been such as to
render it impossible for the debtors to fulfill their obligation in a normal manner;

and (d) the obligor must have been free from any participation in the aggravation of

the resulting injury to the creditor.[29]

To excuse the common carrier fully of any liability, the fortuitous event must

have been the proximate and only cause of the loss.[30] Moreover, it should have
exercised due diligence to prevent or minimize the loss before, during and after the

occurrence of the fortuitous event.[31]

Loss in the Instant Case

There is no controversy regarding the loss of the cargo in the present case. As the

common carrier, petitioner bore the burden of proving that it had exercised

extraordinary diligence to avoid the loss, or that the loss had been occasioned by a

fortuitous event -- an exempting circumstance.

It was precisely this circumstance that petitioner cited to escape liability. Lea

Mer claimed that the loss of the cargo was due to the bad weather condition

brought about by Typhoon Trining.[32] Evidence was presented to show that

petitioner had not been informed of the incoming typhoon, and that the Philippine

Coast Guard had given it clearance to begin the voyage.[33] On October 25, 1991, the
date on which the voyage commenced and the barge sank, Typhoon Trining was

allegedly far from Palawan, where the storm warning was only Signal No. 1.[34]
The evidence presented by petitioner in support of its defense of fortuitous

event was sorely insufficient. As required by the pertinent law, it was not enough for

the common carrier to show that there was an unforeseen or unexpected

occurrence. It had to show that it was free from any fault -- a fact it miserably failed

to prove.

First, petitioner presented no evidence that it had attempted to minimize or

prevent the loss before, during or after the alleged fortuitous event. [35] Its witness,

Joey A. Draper, testified that he could no longer remember whether anything had

been done to minimize loss when water started entering the barge.[36]This fact was

confirmed during his cross-examination, as shown by the following brief exchange:

Atty. Baldovino, Jr.:

Other than be[a]ching the barge Judy VII, were there other precautionary measure[s]
exercised by you and the crew of Judy VII so as to prevent the los[s] or
sinking of barge Judy VII?

xxxxxxxxx

Atty. Baldovino, Jr.:

Your Honor, what I am asking [relates to the] action taken by the officers and
crew of tugboat Ayalit and barge Judy VII x x x to prevent the sinking of barge
Judy VII?

xxxxxxxxx

Court:
Mr. witness, did the captain of that tugboat give any instruction on how to
save the barge Judy VII?

Joey Draper:
I can no longer remember sir, because that happened [a] long time ago. [37]
 Second, the alleged fortuitous event was not the sole and proximate cause of

the loss. There is a preponderance of evidence that the barge was not seaworthy
when it sailed for Manila.[38] Respondent was able to prove that, in the hull of the

barge, there were holes that might have caused or aggravated the sinking. [39]Because

the presumption of negligence or fault applied to petitioner, it was incumbent upon

it to show that there were no holes; or, if there were, that they did not aggravate the

sinking.

Petitioner offered no evidence to rebut the existence of the holes. Its witness,

Domingo A. Luna, testified that the barge was in tip-top or excellent

condition,[40] but that he had not personally inspected it when it left Palawan.[41]

The submission of the Philippine Coast Guards Certificate of Inspection

of Judy VII, dated July 31, 1991, did not conclusively prove that the barge was
seaworthy.[42] The regularity of the issuance of the Certificate is disputably

presumed.[43] It could be contradicted by competent evidence, which respondent

offered. Moreover, this evidence did not necessarily take into account the actual

condition of

the vessel at the time of the commencement of the voyage.[44]

Second Issue:
Admissibility of the Survey Report
Petitioner claims that the Survey Report[45] prepared by Jesus Cortez, the cargo

surveyor, should not have been admitted in evidence. The Court partly agrees.
Because he did not testify during the trial,[46] then the Report that he had prepared

was hearsay and therefore inadmissible for the purpose of proving the truth of its

contents.

The Survey Report Not the Sole Evidence

The facts reveal that Cortezs Survey Report was used in the testimonies of

respondents witnesses -- Charlie M. Soriano; and Federico S. Manlapig, a cargo

marine surveyor and the vice-president of Toplis and Harding Company.[47] Soriano

testified that the Survey Report had been used in preparing the final Adjustment

Report conducted by their company.[48] The final Report showed that the barge was

not seaworthy because of the existence of the holes. Manlapig testified that he had

prepared that Report after taking into account the findings of the surveyor, as well

as the pictures and the sketches of the place where the sinking

occurred.[49] Evidently, the existence of the holes was proved by the testimonies of

the witnesses, not merely by Cortez Survey Report.

Rule on Independently
Relevant Statement

That witnesses must be examined and presented during the trial, [50] and that their

testimonies must be confined to personal knowledge is required by the rules on

evidence, from which we quote:
 Section 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 derived from his own perception,
except as otherwise provided in these rules.[51]

On this basis, the trial court correctly refused to admit Jesus Cortezs Affidavit,
which respondent had offered as evidence.[52] Well-settled is the rule that, unless the

affiant is presented as a witness, an affidavit is considered hearsay.[53]

An exception to the foregoing rule is that on independently relevant

statements. A report made by a person is admissible if it is intended to prove the

tenor, not the truth, of the statements.[54] Independent of the truth or the falsity of

the statement given in the report, the fact that it has been made is relevant. Here,

the hearsay rule does not apply.[55]

In the instant case, the challenged Survey Report prepared by Cortez was admitted

only as part of the testimonies of respondents witnesses. The referral to Cortezs

Report was in relation to Manlapigs final Adjustment Report. Evidently, it was the
existence of the Survey Report that was testified to. The admissibility of that Report

as part of the testimonies of the witnesses was correctly ruled upon by the trial

court.

At any rate, even without the Survey Report, petitioner has already failed to

overcome the presumption of fault that applies to common carriers.

 WHEREFORE, the Petition is DENIED and the assailed Decision and
Resolution are AFFIRMED. Costs against petitioner.

SO ORDERED.

ARTEMIO V. PANGANIBAN
Associate Justice
Chairman, Third Division

WECONCUR:

ANGELINA SANDOVAL-GUTIERREZ RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES CANCIO C. GARCIA

Associate Justice Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation

before the case was assigned to the writer of the opinion of the Courts Division.

ARTEMIO V. PANGANIBAN
Associate Justice
Chairman, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairmans Attestation, it is hereby certified that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the
writer of the opinion of the Courts Division.

HILARIO G. DAVIDE, JR.

Chief Justice

* The Petition included the Court of Appeals as a respondent. However, the CA was omitted by the
Court from the title of the case because, under Section 4 of Rule 45 of the Rules of Court, the
appellate court need not be impleaded in petitions for review.
[1] Rollo, pp. 12-27.
[2] Id., pp. 36-41. Tenth Division. Penned by Justice Elvi John S. Asuncion, with the concurrence of
Justices Portia Alio-Hormachuelos (Division chairperson) and Juan Q. Enriquez Jr. (member).
[3] Id., p. 48.
[4] Assailed Decision, pp. 5-6; rollo, pp. 40-41.
[5] Id., pp. 1 & 36.
[6] The barge was allegedly owned by J. T. Lighterage Services. (TSN dated September 27, 1995, p. 3) It

was non-propelled therefore, it could only operate through its towing by petitioners
tugboat M/T Ayalit. (TSN dated April 26, 1995, p. 12; TSN dated April 25, 1996, p. 19)
[7] Assailed Decision, p. 1; rollo, p. 36.
[8] Id., pp. 2 & 37.
[9] Ibid. The case was docketed as Civil Case No. 92-63159 and raffled to Branch 42.
[10] Ibid.
[11] RTC Decision dated December 7, 1999, p. 9; rollo, p. 58.
[12] Assailed Decision, p. 4; rollo, p. 39.
[13] The case was deemed submitted for decision on October 25, 2004, upon this Courts receipt of

petitioners sparse, 6-page (with only two pages of argument) Memorandum, signed by Atty.
Romualdo M. Jubay. Respondents Memorandum, signed by Atty. Frederick C. Angel, was
received by this Court on October 7, 2004.
[14] Petition, p. 8; rollo, p. 19. Original in uppercase.
[15] 1 of Rule 45 of the Rules of Court.
[16] Menchavez v. Teves Jr., 449 SCRA 380, 395, January 26, 2005; Philippine American General Insurance

Company v. PKS Shipping Company, 401 SCRA 222, 230, April 9, 2003; Commissioner of Internal
Revenue v. Embroidery and Garments Industries (Phil.), Inc., 364 Phil. 541, 546, March 22, 1999.
[17] Art. 1732 of the Civil Code.
[18] Petition, pp. 4-5; rollo, pp. 14-15.
[19] RTC Decision dated December 7, 1999, p. 7; rollo, p. 56.
[20] Puromines, Inc. v. Court of Appeals, 220 SCRA 281, 288, per Nocon J. See also National Food Authority v.

Court of Appeals, 370 Phil. 735, 743, August 4, 1999.

[21] Philippine American General Insurance Company v. PKS Shipping Company, supra, p. 228; Coastwise Lighterage

Corporation v. Court of Appeals, 316 Phil. 13, 19, July 12, 1995.
[22] National Steel Corporation v. Court of Appeals, 347 Phil. 345, 362, December 12, 1997; Valenzuela

Hardwood and Industrial Supply, Inc. v. Court of Appeals, 274 SCRA 642, 654, June 30, 1997.
[23] RTC Decision dated December 7, 1999, pp. 4-6; rollo, pp. 53-55.
[24] Art. 1733 of the Civil Code.
[25] Calvo v. UCPB General Insurance Co., Inc., 429 Phil. 244, 252, March 19, 2002; Compania Maritima v.

Court of Appeals, 164 SCRA 685, 692, August 29, 1988.

[26] Art. 1735 of the Civil Code.
[27] Ibid. See also National Trucking and Forwarding Corp. v. Lorenzo Shipping Corporation, GR No. 153563,

February 7, 2005; Asia Lighterage and Shipping, Inc. v. Court of Appeals, 409 SCRA 340, 346, August
19, 2003; Philippine American General Insurance Company v. PKS Shipping Company, supra, p.
229; Coastwise Lighterage Corporation v. Court of Appeals, supra, p. 20; Basco v. Court of Appeals, 221
SCRA 318, 323, April 7, 1993.
[28] Art. 1734 of the Civil Code.
[29] Mindex Resources Development v. Morillo, 428 Phil. 934, 944, March 12, 2002; Philippine American General

Insurance Co. Inc. v. MGG Marine Services, Inc., 428 Phil. 705, 714, March 8, 2002; Metal Forming
Corp. v. Office of the President, 317 Phil. 853, 859, August 28, 1995; Vasquez v. Court of Appeals, 138
SCRA 553, 557, September 13, 1985; Republic v. Luzon Stevedoring Corp., 128 Phil. 313, 318,
September 29, 1967.
[30] Art. 1739 of the Civil Code.
[31] Ibid.
[32] RTC Decision dated December 7, 1999, p. 9; rollo p. 58 (citing the testimony of Rosa S. Barba). See
also Petitioners Memorandum, p. 2; rollo, p. 157.
[33] Ibid. (citing the testimony of Domingo A. Luna).
[34] The testimony of Rosa S. Barba, weather specialist of Philippine Atmosphere (PAGASA), was

summarized by the RTC as follows:

In May 1993, upon the request of [petitioners] counsel, she issued a weather bureau report or
certification, an official record of Pagasa, which weather report is based on their weather
station at Puerto Princesa, Palawan. x x x The report on the weather condition on October 21,
1991 at around 11:00 am to 2:00 pm was weathercast sky. The bad weather condition on
October 25, 26, and 27, 1991 was caused by typhoon Trining but said typhoon then was far
from Palawan, which was only signal No. 1. Tropical storm Trining entered the Philippine area
of responsibility on October 24. Pagasa did issue a warning that said storm was approaching
the Philippines. Storm Trining was classified, as super typhoon with a maximum of 185
kilometer[s] per hour and the coverage was big. On October 24, 1991, typhoon Trining hit
Batangas, the Ilocos Provinces, Isabela, but not Metro Manila or Palawan. Maybe Palawan
was affected but if ever it was affected it was only minimal. RTC Decision dated
December 7, 1999, p. 6; rollo, p. 55.
[35] See Art. 1739 of the Civil Code.
[36] The testimony of Joey A. Draper, the quarter master in charge of steering the tugboat, was

summarized by the RTC as follows:

On October 25, 1991, he was assigned in the tugboat M/T Ayalit. x x x [The tugboat] was towing the
barge Judy VII which was carrying silica sand. x x x He was an ordinary seaman in 1991 and
it was his first year as a seaman, although he made several trips to Palawan and Manila. x x x
He does not know the qualification[s] of a seaman but he was then a second year high school
[student] and though he did not take any examination, he knew about navigation. When the
incident happened in 1991[,] he had no seaman book as it was not yet strict at the time and
the seaman book can be dispensed with. He was only 18 years and has an actual training of
the work when he boarded the tugboat. Even if he has no formal schooling, the master
allowed him to handle the wheel of the tugboat. When they left San Vicente, Palawan for
Manila on said date at around 4:00 pm, the weather was fair. When they passed by
Linapakan Island, the waves were quite big and the wind was a little bit strong. At that point in
time, the barge patrol of Judy VII wave[d] his hand [at] them. Their captain decided to
approach the barge. They noticed that [there was] water already inside the barge. About two
(2) days later, their captain decided to beach the barge. The said barge then sank and only
the barges house at the back portion of the barge (the puppa) was above water. He could
only remember that they save[d] the bargemen and proceeded to El Nido, Palawan where
they secured themselves to save the tugboat. But he could no longer remember how long a
time they stayed thereat nor if they went back to the barge Judy VII. RTC Decision, p. 6;
rollo, p. 55.
[37] TSN dated November 22, 1995, pp. 27-29.
[38] In civil cases, parties who carry the burden of proof must establish their case by a preponderance of

evidence. 1 of Rule 133 of the Rules of Court.

[39] Respondent proved this allegation through the testimony of its witnesses and submission of

documentary evidence. Unseaworthiness was also the finding of the appellate court. Assailed
Decision, p. 4; rollo, p. 39.
[40] TSN dated April 26, 1995, p. 44.
[41] TSN dated September 27, 1995, pp. 17-21.
[42] Petitioners Exhibit 4.
[43] 3(m) of Rule 131 of the Rules of Court.
[44] Delsan Transport Lines, Inc. v. Court of Appeals, 420 Phil. 824, 834, November 15, 2001.
[45] Exhibit H. See Respondents Offer of Evidence, p. 2; records, p. 159.
[46] Petitioners Memorandum, p. 3; rollo, p. 160.

Respondents witness, Federico S. Manlapig, testified that Jesus Cortez -- who had already migrated to
Australia -- could no longer testify. TSN dated December 15, 1994, p. 9.
[47] RTC Decision dated December 7, 1999, p. 4; rollo, p. 53.
[48] Ibid.
[49] TSN dated December 15, 1994, pp. 9-13.
[50] 1 of Rule 132 of the Rules of Court.
[51] Rule 130 of the Rules of Court.
[52] RTC Order dated March 17, 1995; records, p. 165.
[53] Melchor v. Gironella, GR No. 151138, February 16, 2005; People v. Crispin, 383 Phil. 919, 931, March 2,

2000; People v. Villeza, 127 SCRA 349, 359, January 31, 1984; Paa v. Chan, 128 Phil. 815, 821,
October 31, 1967.
[54] Country Bankers Insurance v. Lianga Bay and Community Multi-purpose Cooperative, 425 Phil. 511, 521,

January 25, 2002. See also Presidential Commission on Good Government v. Desierto, 445 Phil. 154, 191,
February 10, 2003; People v. Mallari, 369 Phil. 872, 884, July 20, 1999; People v. Cloud, 333 Phil.
306, 322, December 10, 1996.
[55] People v. Velasquez, 352 SCRA 455, 476, February 21, 2001; Gotesco Investment Corporation v. Chatto, 210

SCRA 18, 32, June 16, 1992.

 FIRST DIVISION

[G.R. No. 134128. September 28, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GERARDO DE LAS ERAS y

ZAFRA, alias GERRY, accused-appellant.

DECISION
PARDO, J.:

The case is an appeal from the decision[1] of the Regional Trial Court, Branch 3, Bohol, City of
Tagbilaran, finding accused Gerardo de las Eras y Zafra, alias Gerry, guilty beyond reasonable doubt of
murder and sentencing him to reclusion perpetua and to indemnify the heirs of the victim Ursula Calimbo in
the sum of P16,992.50, representing actual civil liability and the further amount of P50,000.00 as moral
damages.
On March 30, 1992, assistant city prosecutor of Tagbilaran City Rio C. Achas filed with the Regional
Trial Court, Bohol, at Tagbilaran City, an information[2] charging accused Gerardo de las Eras y Zafra, alias
Gerry, with murder, reading as follows:

That on or about the 17th day of February, 1992, in the municipality of Cortes, province of
Bohol, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, with intent to kill and without any justifiable cause, with evident premeditation, taking
advantage of superior strength, and treachery by the suddenness and unexpectedness of the acts,
the victim who was unarmed being then unaware thereof, did then and there wilfully, unlawfully
and feloniously attack, assault and strike several times with the use of a club (hard wood) one
Ursula Calimbo, a defenseless old woman, hitting the latter on the head and other vital parts of
her body, thereby causing her immediate death; to the damage and prejudice of the heirs of the
victim in the amount to be proved during the trial.

Acts committed contrary to the provisions of Article 248 of the Revised Penal Code, as
amended, in relation to Article 14, of the same Code.

City of Tagbilaran, March 24, 1992.

On November 13, 1995, the trial court arraigned the accused. He pleaded not guilty.[3] Trial ensued.
On February 17, 1992, at around 7:00 in the evening, Gerome Diola saw accused Gerardo de las Eras
(also known as Gerry) within the vicinity of the house of Ursula Calimbo (then seventy-three years
old).[4] Gerome knew accused de las Eras since childhood. They had a short conversation, then parted
ways. Shortly after that chance meeting, Gerome learned that Ursula Calimbo had been struck to death.[5]
Hilaria Calimbo Binatero, daughter of Ursula, testified that she lived next door to her mother, their
houses separated only by a fence. In the evening of February 17, 1992, she was cooking in her house when
she heard her mother cry for help, Ellen, tabangin ko (Ellen, please help me).[6] She rushed to her mother and
found her bloodied near the main door. She asked her what happened and who was responsible for her
condition. Her mother replied, Gerry.[7]
Hilaria testified that on February 10, 1992, she saw accused de las Eras hiding behind the fence of her
mothers house, looking particularly at the back of the house near the kitchen and the comfort room.On
February 12, 1992, her mother received a pension of P3,000.00. On February 14, 1992, someone stole the
money. Her mother suspected accused de las Eras as the culprit.[8]
Luisito Redulla testified that he rushed to the scene of the crime when he heard Ellen (Hilaria Binatero)
cry for help. He went to the victim and asked what happened to her and who was responsible, and she
answered Gerry, the son of Pepe and Corning struck her (gibunalan siya).[9] Incidentally, accused Gerardo de
las Eras parents are Felipe, nicknamed Pepe, and Cornelia Zafra de las Eras.[10] Luisito Redulla was the
arresting officer when, in 1989, accused Gerry de las Eras was charged with theft.[11]
Hilaria immediately rushed Ursula to the hospital, but after one hour, she died. The family
spent P16,992.50 for the interment and burial of the victim.[12]
Immediately after the incident, police took pictures of the locus criminis showing the deceaseds comfort
room, a pair of slippers and the hard wood used to strike the victim,[13] part of the kitchen sink which also
showed an opening in the wall,[14] and the door beside the sink which was slightly open.[15]
In his defense, accused Gerardo de las Eras invoked denial and alibi. Early in the evening of February
17, 1992, he accompanied Dedec Carnecer to have a battery recharged,[16] and after which, he went directly
to his grandmother to buy cigarettes and to have supper.[17] His grandmothers house was about one hundred
(100) meters away from the house of the victim.[18]
After due trial, on April 8, 1998, the trial court rendered a decision, the dispositive portion of which
reads as follows:

WHEREFORE, premises considered, this Court finds accused Gerardo de las Eras, alias Gerry,
GUILTY beyond reasonable doubt of the Crime of Murder, and hereby imposes upon him the
penalty of imprisonment of reclusion perpetua, to suffer the necessary penalties imposed by
law, and to indemnify the heirs of his victim the sum of P16,992.50, representing actual civil
liability and the further amount of P50,000.00 as moral damages, but without subsidiary
imprisonment in case of insolvency.

Without pronouncement as to Costs.

SO ORDERED.

Given, this 17th day of February, 1998.

(Sgd.) PACITO A. YAPE

Judge[19]
Hence, this appeal.[20]
In his brief, accused-appellant raised as issue the prosecutions failure to prove his guilt beyond
reasonable doubt. He contends that the trial court erred in relying heavily on the dying declaration of the
deceased and other circumstantial evidence.[21]
We find the appeal without merit.
The trial court, in convicting accused-appellant, considered the following circumstantial evidence:
(a) That on February 10, 1992 at about 2:00 p.m. or a week before the incident of February 17, 1992, Gerry
was hiding behind the fence of the victims house, near the trunk of a jackfruit tree. He was observed to be
surveying the premises of the house.
(b) That Ursula Calimbo received her monthly pension of P3,000.00 on February 12, 1992, five (5) days
before the incident.
(c) That on February 14, 1992, Ursula Calimbo lost her money and she suspected accused Gerry as the
culprit.
 (d) That accused Gerardo de las Eras was previously caught, arrested and convicted of theft before the
MCTC of Cortes, Bohol as testified to by Clerk of Court Abelia Redillas.
(e) That on February 17, 1992 at about 7:00 p.m. before the incident took place at about 8:00 p.m., accused
Gerry was seen by prosecution witness Jerome Diola. When asked by Diola during the brief and chance
meeting as to his destination, de las Eras seemed unable to give a definite answer as he was giving two
different destinations: first, that he was on his way to his brothers house; and on the second, to the
bakery of Delfina Boot, as if he were up for some mischief.
(f) That the place where Diola and Gerry parted ways appears to be some 60 meters away to the house of
the victim or a few meters away from the house of his Lola Naning where he took his late supper.
(g) That accused has a strong motive to kill the victim because he wanted to silence her for good, at the same
time to exact vengeance on the victim who suspected accused de las Eras to have stolen her pension
money.
(h) That when the victim, who was already bleeding on her brows, when asked as to her assailant, first, by
her daughter Hilaria Calimbo Binatero, and later by SPO3 Lucito Redulla, she mentioned accuseds
name consistently. That the accused is known by his nickname Gerry in the neighborhood, and that is the
only Gerry in the community.[22]
Circumstantial evidence suffices to convict an accused if the following requisites concur: (1) there must
be more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the
combination of all the circumstances produces a conviction beyond reasonable doubt.[23] The totality of the
evidence must form an unbroken chain showing beyond reasonable doubt the culpability of the accused.[24]
The dying declaration made by the victim immediately prior to her death constitutes evidence of the
highest order[25]of the cause of her death and of the identity of the assailant. Under the Revised Rules on
Evidence,[26] a dying declaration is admissible provided the following requisites are present: (1) the statement
concerns the crime and surrounding circumstances of the declarants death; (2) at the time it was made, the
declarant was under the consciousness of an impending death; (3) the declarant would have been competent
as a witness had he survived; and (4) the declaration was offered in a criminal case for homicide, murder, or
parricide in which the declarant was the victim.[27] When asked by her daughter Hilaria Binatero[28]and
policeman Luisito Redulla,[29] the victim pointed to accused-appellant Gerry de las Eras as her assailant. This
qualifies as a dying declaration.[30]
Denial and alibi are weak defenses and cannot overturn the positive identification by the prosecution
witnesses of the assailant, more so when there are material inconsistencies in the testimony of the accused
denying his participation in the crime. In this case, accused-appellant gave different responses as to his
whereabouts when the crime was committed, thus:
Q: Do you remember having testified on June 14, 1996 that at 5:00 p.m., more or less, you were at your house
when Dedec arrived at your house?
A: Yes.
Q: And now you are testifying in answer to the courts question that when Dedec went to your house, it was only
your sister whom he met and told your sister to tell you that Dedec wanted to see you, which is which now?
A: When Dedec came to our house, I was at the upper portion of the house.
COURT: Why are you telling the court that you were out when Dedec came?
A: I was at the upper portion and my sister told me that Dedec was there.
Q: So you have a talk with him?
A: Yes, before we left.
Q: So, there are now four versions, on July 14, 1996, you said Dedec came to your house to ask you to help him
have his battery charged, on question of the court today, you answer that you were around the house, on
question of Prosecutor Rodolfo R. Ligason, you said, you were at the upper portion of your house, now, you
are telling the court that your sister told you that Dedec Carnecer was there, and you have a talk with
him, which is which now?
 A: I wish to tell the court that Dedec Carnecer came to my house, he first see my sister, who told me that Dedec
was around, and I met Dedec, who told me to go to his house.
Q: So you will not change your answer anymore?
A: Yes.[31]
Accused-appellant also gave different versions as to where he stayed during the charging of the
battery. First, he said that they waited at the store across the whole time that the battery was being
charged.At another time, he said that he went first to his grandmothers house and then came back later to get
the charged battery, thus:
Q: Is it not a fact that usually in order to give power to the battery, the battery should be charged slowly, and
therefore, it should be charged overnight and to be taken the following day?
A: I do not know.
Q: Do you mean to say that after bringing the battery to Igang, after some few minutes, Dedec Carnecer brought it
back to his house?
A: It was left there for three hours.
Q: Do you mean to say that you waited for that number of hours, three hours?
A: Yes.
Q: What time did you arrive?
A: Almost 6:30 p.m.
Q: So, in effect, you waited until 9:30 p.m?
A: No, because we went back to the shop at 8:30 p.m. because Anoy Igang told us to get the battery.
Q: Did you not tell the court that you waited for three hours to have the battery charged?
A: While we waited, Igang told us to get the battery at 8:30, so we returned to his shop at 8:30 p.m.
Q: So, it did not take you three hours to wait after all?
A: I do not know, because they were not ones who waited.
Q: But you came back at 8:30 p.m?
A: Yes.
Q: And you were able to get the battery?
A: Yes.
Q: In other words, it only took you two hours, not three hours?
A: Yes.
Q: But why did you tell the court that you waited for three hours?
A: Yes, because they were talking with Dedec Carnecer.
Q: In other words, it did not take you about three hours to wait, it only took you 1 hours?
A: Yes, that is true.
xxx xxx xxx
Q: While you were on cross, I heard your answer to the effect that after all, you have the battery charged for three
hours, but in your testimony on June 14, 1996, you said that the battery was charged at Anoy Igangs shop for
two hours, my question is, did you deliberately change the two hours to three hours in order to suit the
requirements in charging the battery?
A: What Anoy Igang told us when I arrived at 6:30 p.m., that we will come back at 8:30 p.m., because the battery
will be ready by that time.
 Q: Though, you were not quite responsive to my question, did I get you right just a while ago that you said that you
came back to Anoy Igangs shop to get the battery?
A: Yes.
Q: This is quite a new matter because when you testified on June 14, 1996, you said that from Anoy Igangs shop
taking out the battery, you went to the house of Dedec Carnecer arriving 7:30 p.m., leaving 8:00 p.m. going to
the house of your lola?
A: The truth is, we went to Arsenio Agots store and went back at 8:00 p.m. to get the battery.
COURT: The court noticed that most often you are not responsive to the question asked, remember, these series of
questions are vital, since your defense here is alibi, but on my notes on your testimony of July 16, you
declared that there was no unusual incident at the store of Agot, in fact, you have been seated at the bench of
the store with Dedec Carnecer, and there was no unusual incident thereat. And at about 7:00 p.m., you
returned to the shop of Igang and was able to retrieve the battery, and you went home to the house of Dedec
Carnecer, arriving there at 7:30 p.m., it seems that you are making some conflicting statements. Do not answer
the question unless you are very sure of your answer.
A: I was confused because the question of the fiscal was not in series and sequence.[32]
Accused-appellants defense of denial and alibi is further weakened by the fact that he escaped from
detention on May 23, 1992, before his arraignment.[33] On January 21, 1995, he was re-arrested and detained
at the Bohol Detention and Rehabilitation Center (BDRC) for another crime.[34] On June 7, 1997, during the
trial of this case, accused-appellant again escaped from the guard on duty.[35] On December 17, 1997, he was
apprehended again.[36] Such escapade is akin to flight before arrest in the commission of a crime, which is an
indication of guilt.[37]
However, there was no eyewitness showing how the assailant attacked the victim. Without any
particulars as to the manner in which the aggression commenced or how the act which resulted in the victims
death unfolded, treachery cannot be appreciated.[38] In the absence of specific evidence proving the
qualifying circumstances of treachery and abuse of superior strength, absorbed therein, [39] the crime
committed is homicide, not murder.
WHEREFORE, the Court AFFIRMS the decision of the Regional Trial Court, Bohol, Branch 3,
Tagbilaran City, in Criminal Case No. 7727, convicting accused-appellant Gerardo de las Eras y Zafra, alias
Gerry, with the modification that in lieu of murder, the Court finds accused Gerardo de las Eras y Zafra,
alias Gerry, guilty beyond reasonable doubt of homicide, defined and penalized under Article 249 of the
Revised Penal Code. In the absence of any modifying circumstances and applying the Indeterminate
Sentence Law, the Court hereby sentences him to twelve (12) years of prision mayor, as minimum,
to seventeen (17) years and four (4) months of reclusion temporal, as maximum, to indemnify the heirs of
the deceased Ursula Calimbo in the amount of P50,000.00 plus P16,992.50 as actual damages
andP50,000.00 as moral damages and costs in all instances.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.

[1]
In Criminal Case No. 7727. Judge Pacito A. Yape, presiding. Original Record, pp. 83-97; Rollo, pp. 22-36.
[2]
Original Record, pp. 17-18.
[3]
Ibid., p. 32.
[4]
Exh. I (Death Certificate).
[5]
TSN, June 5, 1996, pp. 3-6.
[6]
Ibid., pp. 9, 11.
[7]
Ibid., p. 11.
[8]
TSN, June 5, 1996, pp. 9-11.
[9]
TSN, June 6, 1996, pp. 30-31, 39.
[10]
TSN, June 14, 1996, p. 2.
[11]
TSN, June 6, 1996, pp. 33-37; Exh. H.
[12]
Exhs. D, E and F; TSN, June 6, 1996, pp. 16-20.
[13]
Exh. C. The club (hard wood) was marked as Exh. A.
[14]
Exh. C-1.
[15]
Exh. C-2.
[16]
TSN, June 14, 1996, pp. 5-6.
[17]
TSN, July 17, 1996, p. 8.
[18]
TSN, August 9, 1996, p. 2.
[19]
Original Record, p. 97; Rollo, p. 36. On June 9, 1999, we accepted the appeal (Rollo, pp. 41-42).
[20]
Original Record, p. 99; Rollo, p. 37.
[21]
Appellants Brief, Rollo, p. 64.
[22]
Decision, p. 13 (Rollo, p. 34; Original Record, p. 95). Emphasis supplied.
[23]
People v. Espina, 326 SCRA 753, 762-763 (2000); People v. Ragundiaz, 334 SCRA 193, 201-202 (2000); People v. Casingal,
337 SCRA 100, 110 (2000); People v. Rendaje, G. R. No. 136745, November 15, 2000.
[24]
People v. Rendaje, supra, Note 23, citing People v. Fronda, 328 SCRA 185 (2000).
[25]
People v. Rada, 367 Phil. 466, 481 (1999). A dying declaration is entitled to the highest credence (People v. Molina, 311
SCRA 517, 525 (1999).
[26]
Rule 130, Section 37, effective July 1, 1989.
[27]
People v. Atrejenio, 310 SCRA 229, 240 (1999); People v. Reduca, 361 Phil. 444, 458-459 (1999); People v. Nialda, 352 Phil.
355, 363-364 (1998); People v. Bromo, 318 SCRA 760, 778 (1999); People v. Gado, 358 Phil. 956, 966 (1998).
[28]
TSN, June 5, 1996, p. 11.
[29]
TSN, June 6, 1996, p. 39.
[30]
People v. Atrejenio, supra, Note 27; People v. Molina, supra, Note 25, at pp. 524-525.
[31]
TSN, August 9, 1996, pp. 4-5 (emphasis supplied).
[32]
TSN, August 9, 1996, pp. 6-9 (emphasis supplied).
[33]
Original Record, p. 25.
[34]
Ibid., p. 29.
[35]
Ibid., p. 52.
[36]
Ibid., pp. 77-80.
[37]
People v. Alvarez, G. R. No. 121769, November 22, 2000.
[38]
People v. Casingal, 337 SCRA 100, 112 (2000), citing People v. Rios, 333 SCRA 823 (2000).
[39]
People v. Taclan, 367 Phil. 648, 662 (1999).
 FIRST DIVISION

[G.R. No. 133964. February 13, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAMIL PEA, accused-

appellant.

DECISION
YNARES-SANTIAGO, J.:

Accused-appellant Ramil Pea was charged with murder in an Information which reads, thus:

That on or about the 8th day of December, 1995, in the municipality of Obando, province
of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused armed with a firearm with intent to kill one Jimbo Pelagio y Ferrer, did then and
there wilfully, unlawfully and feloniously, with evident premeditation and treachery, attack,
assault and shoot the said Jimbo Pelagio y Ferrer, hitting the latter on the head thereby inflicting
wound which directly caused the death of the said Jimbo Pelagio y Ferrer. [1]

In the early morning of December 8, 1995, accused-appellant hired Jimbo Pelagio, a tricycle
driver working the night shift, to take him to Paco, Obando, Bulacan. When they reached their
destination, he ordered Pelagio to get off the tricycle. Then, accused-appellant robbed Pelagio of
his money and repeatedly struck him on the head with a gun. Pelagio fell on the ground
unconscious. Accused-appellant shot him on the head and fled on board his tricycle.
That same morning, SPO1 Froilan Bautista got a call from
the Valenzuela Emergency Hospital stating that a man had been shot on the head and was in their
hospital. SPO1 Bautista and SPO1 Jose Sta. Ana rushed to the hospital and found the still
conscious Pelagio lying on a stretcher.
SPO1 Bautista took the statement of Pelagio in a question and answer method, which he took
down on two sheets of yellow paper. After his statement was taken, Pelagio affixed
his thumbmark on both sheets. In his statement, Pelagio related how accused-appellant inflicted
his injuries on him.
The owner of the tricycle, Wilfredo Lampa, after being informed that Pelagio had been shot,
proceeded to the hospital. There, Pelagio told him that it was accused-appellant who shot him and
took away his tricycle.
Francisca Pelagio, Jimbo Pelagios mother, also rushed to the hospital. Upon advice of the
doctors, Francisca brought her son to the Jose Reyes Memorial Hospital. On February 6,
1996, Jimbo Pelagio expired. According to Francisca, she spent P26,000.00 for his medical and
funeral expenses.
For his part, accused-appellant claimed that he was in San Isidro, San
Luis, Pampanga together with his wife on the date of the incident. He went into hiding in the house
of his uncle, Maximiano Guevarra, for nine (9) months because he allegedly killed a certain
Roger Wininsala. He came to know that he was being accused of the murder of Pelagio, whom he
did not know, only while he was in detention on a drug charge.
Accused-appellants testimony was corroborated by his uncle Maximiano Guevarra.
The trial court was not persuaded. On May 13, 1998, it rendered a
decision,[2] the dispositive portion of which reads:
WHEREFORE, the foregoing considered, this Court hereby finds RAMIL PEA GUILTY
beyond reasonable doubt of the crime of Murder under Article 248 of the Revised Penal Code
and sentences him to suffer the penalty of Reclusion Perpetua and to pay the victims mother,
Francisca Pelagio, the amount of P26,000.00 representing actual damages and the costs of suit.

Hence this appeal.

Accused-appellant claims that the trial court erred in finding that accused-appellant
shot Pelagio because there is no evidence that a bullet was embedded in the skull of the
victim.More specifically, the attending physicians were not presented to testify that the victim died
of a gunshot wound in the head.
Accused-appellant next claims that the evidence relied upon by the trial court is hearsay and
inadmissible. He argues that said evidence does not constitute res gestae. Particularly, he
emphasizes that it was imperative on the part of the lower court that it should have appreciated the
principle of res gestae on the basis of the contents of Jimbo Pelagios statement reduced in
handwritten form by SPO1 Bautista, and not on the dying declarations made by Jimbo Pelagio to
SPO1 Bautista, Wilfredo Lampa and Francisca Pelagio because these prosecution witnesses had
all the time to contrive and improvise on what was actually told them, allegedly by Jimbo Pelagio.[3]
The pivotal issue is whether the statement of the victim Jimbo Pelagio as well as the
testimonies of the prosecution witnesses on the victims declaration can be considered as part of
the res gestae, hence, an exception to the hearsay rule.
The statement or declaration made by Pelagio, taken by SPO1 Bautista, reads:
T: Alam mo ba ang dahilan kung bakit ka naririto sa Valenzuela Emergency Hospital at kinukunan
ka ng salaysay?
S: Opo, dahil pinagpapalo po ako ng baril ni RAMIL PEA sa ulo at kinuha and
tricycle kong minamaneho.
T: Taga saan itong si Ramil Pea?
S: Sa Dulong Tangke, Valenzuela, (Malinta), M.M.
T: Saan, kailan at anong oras nangyari ito?
S: Sa Paco, Obando, Bulacan, kaninang ika-8 ng Disyembre 1995 sa ganap na ika-
4:15 ng umaga.
T: Sakay mo ba itong si Ramil Pea?
S: Oho, sumakay sa may gasolinahan ng Petron sa Malinta, Valenzuela, M.M.
T: Dati mo bang kilala si Ramil Pea?
S: Opo.
T: Ano ba ang tatak ng tricycle mo?
S: Yamaha RS-100, kulay itim.
T: Sino and may-ari ng tricycle?
S: Si Rey Dagul.
T: Binaril ka ba ni Ramil?
S: Muntik na ho.
T: Bakit sa iyo ginawa ni Ramil and bagay na ito?
S: Ewan ko ho.[4]
The trial court ruled that Pelagios statement was a dying declaration since it was uttered at the
point of death and with consciousness of that fact due to the serious nature of his wounds. Thus, it
admitted Pelagios statement in evidence as an exception to the hearsay rule.
 The requisites for the admissibility of dying declarations have already been established in a
long line of cases. An ante-mortem statement or dying declaration is entitled to probative weight if:
(1) at the time the declaration was made, death was imminent and the declarant was conscious of
that fact; (2) the declaration refers to the cause and surrounding circumstances of such death;
(3) the declaration relates to facts which the victim was competent to testify to; (4)
the declarant thereafter died; and (5) the declaration is offered in a criminal case wherein
the declarants death is the subject of the inquiry.[5]
The first element is lacking in the case at bar. It was not established with certainty
whether Pelagio uttered his statement with consciousness of his impending death. While he was in
pain when he made his statement, he expressly stated that accused-appellant only pistol-whipped
him and almost shot him.[6]
The significance of a victims realization or consciousness that he was on the brink of death
cannot be gainsaid. Such ante mortem statement is evidence of the highest order because at the
threshold of death, all thoughts of fabricating lies are stilled. The utterance of a victim made
immediately after sustaining serious injuries may be considered the incident speaking through the
victim. It is entitled to the highest credence.[7]
Granting that Pelagio, after giving his statement, later on realized that he was dying, his
statement still can not be considered a dying declaration. The crucial factor to consider is
the contemporaneity of the moment when the statement was made and the moment of the
realization of death. The time the statement was being made must also be the time the victim was
aware that he was dying.
While it may not qualify as a dying declaration, Pelagios statement may nonetheless be
admitted in evidence as part of the res gestae. In People v. Marollano,[8] this Court held:

The requisites for the admissibility of the victims ante mortem statement as part of
the res gestae and also as a dying declaration are present in this case, hence the same should be
admitted under both exceptions to the hearsay rule. (Citation omitted) While the admissibility
thereof would naturally not be affected whether viewed under either or both considerations, the
advantage of resting the issue on the aforesaid dual bases is that its admission would be
invulnerable to a theorized absence of an element of one of said exceptions. This is particularly
important in this case, considering that the very identification of the assailant and the accuracy
thereof are essentially based on the declaration of the victim. (Emphasis supplied)

A declaration made spontaneously after a startling occurrence is deemed as part of

the res gestae when (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
concern the occurrence in question and its immediately attending circumstances. [9]
In People v. Naerta,[10] this Court held that:

The term res gestae comprehends a situation which presents a startling or unusual occurrence
sufficient to produce a spontaneous and instinctive reaction, during which interval certain
statements are made under such circumstances as to show lack of forethought or deliberate
design in the formulation of their content.

Pelagios declaration is admissible as part of the res gestae since it was made shortly after a
startling occurrence and under the influence thereof. Under the circumstances, the victim evidently
had no opportunity to contrive his statement beforehand. [11]
In People v. Hernandez,[12] the infliction on a person of a gunshot wound on a vital part of the
body should qualify by any standard as a startling occurrence. And the rule is that testimony by a
person regarding statements made by another as that startling occurrence was taking place or
immediately prior or subsequent thereto, although essentially hearsay, is admissible exceptionally,
on the theory that said statements are natural and spontaneous, unreflected and instinctive, made
before there had been opportunity to devise or contrive anything contrary to the real fact that
occurred, it being said that in these cases, it is the event speaking through the declarant, not the
latter speaking of the event.
In this case, it is clear that the pistol-whipping and the gunshot on the head of Pelagio qualified
as a startling occurrence. Notably, Pelagio constantly complained of pain in his head while his
statement was being taken by SPO1 Bautista, so much so that there was no opportunity for him to
be able to devise or contrive anything other than what really happened.
In People v. Putian,[13] the Court held that although a declaration does not appear to have been
made by the declarant under the expectation of a sure and impending death, and, for that reason,
is not admissible as a dying declaration, yet if such declaration was made at the time of, or
immediately after, the commission of the crime, or at a time when the exciting influence of the
startling occurrence still continued in the declarants mind, it is admissible as part of the res gestae.
Indeed the defense admitted as much when it stated, thus:

We should stress that Jimbo Pelagios handwritten statement, or his declarations therein, were
made immediately after the res gestae or the principal act took place, and he had no time to
contrive or devise, while his statements directly concerned the occurrence in question and its
immediate circumstances. We should take note further that the handwritten statements contents
are rather detailed in terms of the specifics of the circumstances before, during and after the
subject incident which elicits guarded conclusion that notwithstanding Jimbo Pelagios physical
condition at the Valenzuela Emergency Hospital, he was conscious and lucid enough to
intelligently respond rather spontaneously on the questions propounded to him by SPO1
Bautista. These acts and statements made by Jimbo Pelagio definitely constitute part
of res gestae and not the testimonies and/or written statements of the three prosecution
witnesses in this case.[14]

By stating, however, that the testimonies or the written statements of the three prosecution
witnesses were taken into consideration by the trial court as part of the res gestae betrays a
misapprehension of said principle. This Court agrees with the Solicitor General when it observed
thus:

Since res gestae refers to those exclamations and statements made by either the participants,
victims or spectators to a crime before, during or immediately after the commission of the crime,
they should necessarily be the ones who must not have the opportunity to contrive or devise a
falsehood but not the persons to whom they gave their dying declaration or spontaneous
statement. In other words, the witness who merely testifies on a res gestae is not
the declarant referred to in the second requisite whose statements had to be made before he had
the time to contrive or devise a falsehood. (citation omitted)

Thus, even if there were intervening periods between the time the victim gave his account of the
incident to the prosecution witnesses and the time the latter first disclosed what the victim told
them, the same will not affect the admissibility of the victims declaration or statement as part
of res gestae since it is sufficient that such declaration or statement was made by the victim
before he had time to contrive or devise a falsehood. [15]

In any case, there is no reason why SPO1 Bautista would contrive or devise a falsehood
especially on the matter that Pelagio was shot on the head and that it was accused-appellant who
shot him. As a police officer, he was duty-bound to investigate and unearth the facts of the
case. There is a presumption that as an officer of the law, he sought only the truth. Besides, no
motive was shown as to why he would contrive or devise a falsehood against accused-appellant.
 In his Investigation Report,[16] SPO1 Bautista gathered that accused-appellant
shot Pelagio from the Radiologic Report conducted at the Valenzuela District Hospital wherein the
presence of metallic fragments was discovered. Moreover, the results of the C.T. Scan conducted
on the victim showed the presence of metallic fragments in his skull. In Pelagios Death
Certificate,[17] the underlying cause of death was indicated as gunshot wound to the head.
There is, therefore, no merit in accused-appellants contention that there was no evidence
that Pelagio was shot in the head. It should be noted that accused-appellant pistol-
whipped Pelagio repeatedly. The Solicitor Generals following submission would, therefore, make
sense:

Given the probability that he was already unconscious or his head had become numb due to
severe head injuries when accused-appellant shot him, it is not unlikely for the victim not to
have known or felt being shot and hit by accused-appellant on the head. This was probably the
reason why in his initial declaration, the victim merely stated that he was nearly shot by
accused-appellant. [18]

Regardless, Pelagio categorically declared that it was accused-appellant who caused his head
injuries which eventually led to his death. SPO1 Bautistas testimony as well
as WilfredoLampas and Francisca Pelagios merely corroborated Pelagios statement that it was
accused-appellant who caused his head injuries.
The trial court found, thus:

The straightforward and consistent testimonies of the three vital prosecution witnesses bear the
earmarks of credibility. Further, there exists no ill motive on their part to prevaricate. This
absence of evidence as to an improper motive actuating the principal witnesses for the
prosecution strongly tends to sustain that no improper motive existed and their testimony is
worthy of full faith and credit (citation omitted), for witnesses do not generally falsely impute to
an accused a serious criminal offense were it not the untarnished truth. (Citation omitted)

Settled is the rule that in the absence of any fact or circumstance of weight and influence
which has been overlooked or the significance of which has been misconstrued to impeach the
findings of the trial court, the appellate courts will not interfere with the trial courts findings on the
credibility of the witnesses or set aside its judgment, considering that the trial court is in a better
position to decide the question for it had heard the witnesses themselves during the trial. The
evaluation of the credibility of witnesses is a matter that particularly falls within the authority of the
trial court.[19]
However, this Court cannot agree with the trial court that the crime should be murder. While
evident premeditation and treachery were alleged in the information, the trial court did not state
why the killing was qualified to murder. The prosecution failed to establish the attendance of the
qualifying circumstances with concrete proof. The crime proved was only homicide.
In accordance with Article 249 of the Revised Penal Code, accused-appellant should be
sentenced to reclusion temporal. There being no mitigating or aggravating circumstance, the
penalty to be imposed shall be the medium period of reclusion temporal, ranging from fourteen
(14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months.Applying
the Indeterminate Sentence Law, accused-appellant shall be entitled to a minimum penalty, to be
taken from the penalty next lower in degree or prision mayor, in any or its periods, ranging from six
(6) years and one (1) day to twelve (12) years.
As to the matter of damages, we hold that the trial court should have awarded civil indemnity
in the amount of P50,000.00 in line with prevailing jurisprudence.[20] The award of P26,000.00 as
actual damages is upheld, being duly proven with receipts.[21]
 WHEREFORE, in view of the foregoing, the decision is MODIFIED. Accused-
appellant Ramil Pea is found guilty beyond reasonable doubt of homicide and sentenced to suffer
an indeterminate sentence of ten (10) years of prision mayor, as minimum, to seventeen (17)
years and four (4) months of reclusion temporal, as maximum, and to pay the heirs of the
victim Jimbo Pelagio the amount of P50,000.00 as civil indemnity and P26,000.00 as actual
damages.
Costs against accused-appellant.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, and Kapunan, JJ., concur.

[1]
Rollo, p. 7.
[2]
Penned by Judge Gregorio S. Sampaga, Branch 78 of the Regional Trial Court of Malolos, Bulacan.
[3]
Rollo, pp. 43-44.
[4]
Exhibit A, Records, pp. 93-94.
[5]
People v. Templo, G.R. No. 133569, December 1, 2000.
[6]
Exhibit A, Records, pp. 93-94.
[7]
People v. Lao-as, G.R. No. 126396, June 29, 2001.
[8]
276 SCRA 109 [1997], citing Justice Florenz D. Regalados Separate Opinion in People v. Israel.
[9]
People v. Bituon, G.R. No. 142043, September 13, 2001.
[10]
74 Phil. 8 [1942].
[11]
People v. Lao-as, supra.
[12]
205 SCRA 213 [1992].
[13]
74 SCRA 139 [1976].
[14]
Appellants Brief, Rollo, pp. 28-49.
[15]
Brief for Plaintiff-Appellee, Rollo, pp. 93-94.
[16]
Records, p. 132.
[17]
Exhibit B, Records, p. 95.
[18]
Rollo, p. 90.
[19]
People v. Gallo, G.R. No. 133002, October 19, 2001.
[20]
People v. Reyes, G.R. Nos. 137494-95, October 25, 2001.
[21]
People v. Olita, G.R. No. 140347, August 9, 2001.
 FIRST DIVISION

[G.R. No. 129053. January 25, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PO3 AKIB

NORRUDIN, accused-appellant.

DECISION
KAPUNAN, J.:

This is an appeal from the Decision, dated January 24, 1997, of the Regional Trial Court
of Surigao City, Branch 32, in Criminal Case No. 4564 [1] finding accused-appellant Akib Norrudin
guilty beyond reasonable doubt of murder.
The Information charging accused-appellant stated:

That on or about July 8, 1995, in the City of Surigao, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, armed with a firearm, with grave abuse of
authority he being a member of the Philippine National Police assigned at Surigao City PNP
Station, with intent to kill and by means of treachery, did then and there wilfully, unlawfully and
feloniously attack, assault and attack Vidal Avila, Jr., hitting the latter on the vital part of his
body, thereby inflicting upon him serious gunshot wound which caused his death, to the damage
and prejudice of the heirs of the deceased in such amount as may be allowed them by law.

Contrary to Article 248 of the Revised Penal Code with the qualifying circumstance of
treachery.[2]

Upon arraignment, the accused-appellant pleaded Not Guilty. Thereafter, trial ensued.
The prosecution presented nine witnesses: PO2 Eleazar Carias, Dorothy Rivera, Ramil
Llorado, PO3 Ruperto Deguino, Senior Police Inspector Edgardo Leva, PO3 Eutropio Paltinca,
Police Inspector Armada, Dr. Audie Relliquete and Mrs. Florentina Avila.
PO2 Carias testified that in the evening of July 7, 1995, he reported for work at the Surigao
City Police Station. He saw the accused-appellant at the police station although the latter was
already off-duty. The accused-appellant was wearing civilian clothes and had his firearm tucked at
the side of his waist.[3]
Sometime later that evening, upon the invitation of Police Inspector Diosdado Morales, Carias,
Morales and the accused-appellant went to Barangay Lipata to inspect the police team assigned
there and reached said place at around 9:15 p.m. In Barangay Lipata, they had some drinks with a
friend until about 12:30 a.m. of July 8, 1995. Thereafter, Morales, Carias and the accused-
appellant returned to Surigao City.[4]
Upon reaching the city, the accused-appellant, who was already drunk by then, got off in front
of Casa Blanca, a pension house, restaurant and videoke bar located at Narciso Street.He invited
his companions to go inside said establishment for another round of drinks but the latter refused
as they were still on duty. Carias and the others then returned to the police station.[5]
After their return to the police station in Surigao City, SPO3 Antonio Cortes arrived and
requested Carias to help tow their police car which ran out of gas in Barangay Rizal. Since the
vehicle used for towing was in the house of SPO3 Ruperto Deguino, Carias and Cortes went to
Deguinos house and requested the latter to drive the tow vehicle. [6] Deguino acceded to their
request, but first went to the police station to get the rope used for towing while Carias and Cortes
went ahead to Barangay Rizal.[7]
At around 2:00 a.m., while Deguino was at the police station, he received a radio
communication requesting police officers to proceed to Casa Blanca in connection with a shooting
incident which had just occurred therein.[8]
Kit Aguilar, a guest relations officer (GRO) testified that earlier in the evening of July 7, 1995,
prior to the occurrence of the shooting incident at Casa Blanca, she and a certain Maritess, a
fellow GRO, were entertaining a customer named Vidal Avila, Jr.[9]
At around 1:00 a.m. of the following day, July 8, 1995, the accused-appellant arrived at Casa
Blanca. Maritess, who was then with Kit Aguilar and Vidal Avila, Jr., rose to meet him, as he was
her live-in boyfriend.[10] Maritess and the accused-appellant sat at another table and ordered
beer. Not long after that, they started arguing and the accused-appellant began shouting at
Maritess. Thereafter, they stood up from their table and went outside the restaurant, and walked
toward the front gate of the restaurant compound where they continued arguing. [11] Later, after
Avila, Jr. stood from his table, paid his bill and went outside the restaurant to ride his
motorcycle. Aguilar looked through the restaurants window and saw that Avila, Jr. turned right to
Narciso Street. Shortly afterwards, she heard a gunshot. Maritess then went back inside the
restaurant. Aguilar asked Maritess if she knew anything about the gunshot which was fired
earlier. Maritess replied that it was her boyfriend, the accused-appellant, who fired the shot.
Subsequently, accused-appellant also went back inside Casa Blanca, finished his drink and left
the restaurant with Maritess.[12]
Dorothy Rivera, the owner of Casa Blanca, corroborated Aguilars testimony and stated that in
the early morning of July 8, 1995, while she was supervising the waitresses inside the restaurant,
she saw the accused-appellant and Maritess quarrelling near the front gate of the restaurant
compound.[13] Shortly thereafter, Avila, Jr. bade her goodbye. Rivera knew Avila, Jr. because he
was a cousin of her brother-in-law. Avila then rode his motorcycle which was parked inside the
restaurant compound and went on his way home.[14]
As Avila turned his motorcycle to the right side of the gate of Casa Blanca, Rivera heard a
gunshot.[15] Thereafter, Maritess went back inside the restaurant. Rivera then asked her if she knew
anything about the gunshot that had just been fired. Maritess replied that the accused-appellant
had fired a warning shot.[16] Later, the accused-appellant also went back inside the restaurant and
finished his beer. Maritess and the accused-appellant talked again for a few minutes and then they
left Casa Blanca.[17]
For his part, Ramil Llorado testified that at about 1:00 a.m. on July 8, 1995, while he was
drinking liquor with two other persons in front of his house in Narciso St., some fifty to sixty meters
away from Casa Blanca, he heard a lone gunshot. Three to four minutes after the said gunshot
was fired, a man riding a motorcycle stopped in front of them and asked for help.Thereafter, the
man fell down from his motorcycle. Llorado recognized the man as Vidal Avila, Jr., an employee in
the Office of the City Engineer of Surigao City.[18] Llorado and one of his friends then hailed a
tricycle and rushed to the city police station. They reported the incident to the desk officer and
requested for assistance. The police then sent two policemen in a patrol car to Narciso St. to look
into the matter.[19]
Upon returning to Narciso St. with the policemen, Llorado helped carry Avila, Jr. inside the
police car to bring him to the Surigao Provincial Hospital. Llorado cradled Avila, Jr.s head on his
lap and asked the latter who shot him. Avila, Jr. replied in a weak voice that a policeman shot
him. Llorado was shocked upon hearing Avila, Jr.s answer, but since they were inside a police car
at that time together with some policemen, he refrained from further asking questions. [20]
Meanwhile, as PO3 Deguino was driving to Casa Blanca in response to the radio
communication which he had earlier received, he saw some men carrying a wounded man inside
a police car parked along Narciso St. He learned that the wounded man was the person shot in
front of Casa Blanca earlier that morning.[21] He then proceeded to Casa Blanca to investigate
regarding the incident. He was told by a certain Simon Ferol and a Benhur Turtor who were at
Casa Blanca at the time of the shooting that the assailant was Deguinos fellow police
officer.[22] Later, PO2 Carias told him that the policeman whom they dropped off at Casa Blanca at
around 12:45 a.m. of July 8 was the accused-appellant, and that the latter was already drunk
when he got off at said restaurant.[23] Deguino also talked to Kit Aguilar who confirmed that the
accused-appellant was at Casa Blanca with his girlfriend Maritess earlier that morning. [24]
Thereafter, Deguino and PO3 Marcial Tinio proceeded to the hospital where Avila, Jr. was
brought to ask the latter some questions regarding the shooting. Upon arriving there at around
3:00 a.m., they found another policeman surnamed Cabada trying to interview Avila, Jr.[25] Sensing
that Avila, Jr. was dying, Deguino requested Cabada to allow him to ask the questions as he and
the victim were friends.[26]
Deguino then placed his mouth near Avila, Jr.s ear and spoke loudly: Jun, this is your friend
Bebot. Avila, Jr. opened his eyes and raised his head toward Deguino. The latter then asked Avila,
Jr., Do you recognize the person who shot you? After Deguino repeated the question three times,
Avila, Jr. replied yes. Deguino then asked: Kinsa man? (Who) Who, a policeman?Avila, Jr. said
yes again. Deguino asked the latter a third question: Was it Akib? Deguino had to repeat the
question several times before Avila finally said yes.[27]
Deguino could not believe what Avila, Jr. had just said that he felt his body hairs stand up. He
and Tinio then went to their vehicle and returned to the police station. Upon reaching the same, he
informed Inspector Gregorio Peramide, the officer of the day, what Avila, Jr. had told him. [28]
Another witness, Senior Inspector Edgar Leva, testified that at around 2:00 a.m. on July 8,
1995 while he was waiting in Barangay Lipata for the vehicle that would tow the car used by him
and some other policemen back to Surigao City, he monitored a message from their radio
equipment that there was a shooting incident in Casa Blanca in Narciso St., Surigao City.About
twenty minutes after he heard said message, he arrived at the Surigao City Police Station where
he met Peramide whom he ordered to follow-up the developments regarding the shooting
incident.[29] At around 3:00 a.m., not long after Leva had returned to his residence, Inspector
Morales arrived therein and reported to him that the accused-appellant was the prime suspect in
the shooting of Avila, Jr.[30] Shortly thereafter, Peramide, and later Tinio and Deguino also arrived at
Levas house and made similar reports that the accused-appellant was suspected of having shot
Avila, Jr.[31] As deputy chief of police of Surigao City, Leva directed them to cordon off the house of
Norrudin in Gimena St., Surigao City as there were reports that the accused-appellant was in his
home.
Subsequently, Leva received a call that he was needed at the accused-appellants house
which was already surrounded by policemen.[32] When he reached the same, he called out the
accused-appellants name and asked the latter to come out of the house. However, the accused-
appellant instead asked Leva to enter the house. Leva and Deguino went in and the accused-
appellant surrendered to them. Leva then brought the accused-appellant to the police station.[33]
PO3 Eutropio Paltinca, a laboratory technician in the Philippine National Police (PNP) Crime
Laboratory in Cagayan de Oro City who had been temporarily assigned to the forensic processing
department in Surigao City, testified that he conducted a paraffin test on the accused-appellant
pursuant to the request of the Chief of Police of Surigao City. He conducted the test on both hands
of the accused-appellant.[34] The following day, he personally brought the test results to the crime
laboratory in Cagayan de Oro City.
Chemistry Report No. C-022-95 dated July 9, 1995 prepared by forensic analyst Senior
Inspector Vicente P. Armada, revealed that the accused-appellants right hand tested positive for
gunpowder residue.[35]
Armada also examined the revolver, a caliber .38 Squares Bingham with Serial No. 924673
assigned to the accused-appellant, to determine if the same had been fired recently before it was
confiscated.[36] Chemistry Report No. C-036-95 prepared by Armada stated that nitrate and
gunpowder residue were found on the barrel and cylinder of the firearm. He concluded that the
firearm had been fired recently before it was confiscated.[37]
The physician on duty in Surigao Provincial Hospital on July 8, 1995, Dr. Audie Relliquete,
testified that at about 2:35 a.m. on July 8, 1995, a wounded man identified as Vidal Avila, Jr. was
brought to the hospital due to a gunshot wound. [38] Dr. Relliquete examined the victim and noticed
that the latter was cyanotic and pale due to loss of blood. [39] The doctor discovered that the bullet
entered the victims body on the right side of the abdomen and exited at the left side of his
navel. The wound of entry was contused and circular and had the characteristics of a bullet
wound. The trajectory of the wound was about level from the points of entry to exit. [40] Dr. Relliquete
also stated that he applied dextrose and other medicines on Avila, Jr. and scheduled him for an
exploratory laparotomy, but the victim died at around 4:10 a.m. even before the operation could be
conducted. The cause of death was severe blood loss, shock and heart failure secondary to the
bullet wound.
The victims wife, Florentina Avila (Mrs. Avila), testified that she and Avila, Jr. had four
children. Their oldest child was 11 years old while the youngest was only two years old. [41] At the
time of his death, Avila, Jr. was 43 years old and working as a building inspector at the City
Engineers Office with a net take home pay of P1,909.88 per month. [42] Had he lived until retirement
at age 60, he would have about 17 more years in government service and would have earned a
total of P389,615.52 during this period.[43] Mrs. Avila further stated that she spent a total of
P113,900.00 in miscellaneous expenses for the wake and interment of her husband. [44] She also
claimed moral damages for the shock, serious anxiety and worry that she and her children
suffered as a result of her husbands death.[45]
The accused-appellant denied the charges against him. While he admitted in his testimony
that on the night of July 7, 1995, after his duty, he went to Barangay Lipata, Surigao City with
Police Inspector Morales, PO2 Carias, and PO2 Valeciano Rivas to inspect the police detachment
located therein, and thereafter, to have a few drinks, he insisted that after they returned to Surigao
City at about 2:00 a.m. on July 8, 1995, he asked PO3 Pepito Gloria who was driving the vehicle
to drop him off at his house in the PNP Compound in Borromeo St. He said that when he got
home, he changed clothes, ate supper and then went to sleep.[46]
The accused-appellant further stated that at around 6:30 a.m. of July 8, 1995, he was
awakened by the arrival of Senior Inspector Edgar Leva and SPO4 Antonio Cortes at his
residence. He was told that they were going to the police station. Upon their arrival at said place,
Leva and Cortes asked the accused-appellant what he did earlier that morning. The latter replied
that he did not do anything. Leva then told him that he (accused-appellant) shot a man dead at
Casa Blanca. The accused-appellant said he was stunned by Levas statement since he had
nothing to do with the incident.[47]
The accused-appellant also denied that Maritess, the GRO from Casa Blanca, is his
girlfriend. He maintained that he does not know the woman and he has not gone inside the said
restaurant.[48]
The testimony of Ruperto Deguino was assailed by the accused-appellant on the ground of
alleged bias and ill-will. He said that sometime in August 1993, he and Deguino were assigned to
guard the PHILNICO in Barangay Nonoc, Surigao City. Deguino tried to smuggle out certain jeep
parts from the company compound but he was prevented from doing so by the accused, who
reported the incident to the company management, so Deguino threatened to get even with him
someday.[49]
The accused-appellant also explained that the firearm assigned to him had nitrate and
gunpowder residue because he test-fired the same two times in the PNP Compound on July 7,
1995.[50]
PO2 Pepito Gloria corroborated the accused-appellants statement that they went to Barangay
Lipata in the evening of July 7, 1995 and returned to Surigao City at around 1:00 a.m. on July 8,
1995. He said that they dropped off the accused-appellant at Firma Lodge near the PNP
Compound before proceeding to the police station.[51] PO2 Valeriano Rivas likewise gave a similar
testimony before the trial court.[52]
On January 24, 1997, the RTC promulgated its Decision finding the accused-appellant guilty
beyond reasonable doubt of the crime of murder and imposing upon him the penalty of reclusion
perpetua.
Accused-appellant filed a notice of appeal from the decision of the RTC on February 18, 1997.
In his appeal brief, accused-appellant contends that the trial court erred in finding him guilty of
murder based on the evidence presented by the prosecution. He argues that the alleged dying
declaration is inadmissible because it was not reduced into writing. The victims alleged declaration
was testified to only by PO3 Deguino, and such testimony was not corroborated by any other
witness. Accused-appellant further states that even assuming that the victims dying declaration is
admissible on that score, the trial court should not have admitted the same because the
prosecution failed to establish that at the time the victim told Deguino who killed him, he was
conscious that he was at the brink of death. Citing People vs. Lanza[53] and People vs.
Elizaga,[54] the accused-appellant argues that such element must be proven for the dying
declaration to be admissible in evidence.[55] Moreover, the accused-appellant contends that the
alleged dying declaration is doubtful, considering that it was Deguino who forced into the mouth of
the victim the identity of the [accused-]appellant as his supposed assailant,[56] and that in other
words, it was not the victim who actually identified the accused-appellant as his killer.[57]
Accused-appellant likewise assails the trial courts findings that it was he who shot Avila, Jr.,
and maintains that the owner of Casa Blanca, Dorothy Rivera, as well as Kit Aguilar who was also
at said restaurant at the time of the shooting, testified that at the moment they heard the gunshot,
they did not see accused-appellant holding a gun nor shooting the victim nor posed to shoot the
latter.[58]
It is further argued that Maritess statement addressed to Rivera and Aguilar that accused-
appellant had fired a warning shot should not have been admitted by the trial court for being
hearsay, as Maritess was never presented in court.[59]
The Solicitor General on the other hand contends that accused-appellants guilt was proven
beyond reasonable doubt.[60] He maintains that the dying declaration of Vidal Avila, Jr. was made
under consciousness of impending death, and is therefore sufficient to convict accused-appellant
of the crime charged.[61]
He further contends that even assuming arguendo that the victims declaration is inadmissible
in evidence, still the accused-appellant can be convicted beyond reasonable doubt on the basis of
circumstantial evidence which proves the accused-appellants guilt beyond reasonable doubt.[62]
The Court affirms the trial courts ruling.
At the outset, it must be said that the Court finds no reason to deviate from the general rule
that factual findings of the trial court are entitled to respect and shall not be disturbed on appeal,
unless some facts or circumstances of weight and substance have been overlooked or
misinterpreted, and would otherwise materially affect the disposition of the case. [63] In the case at
bar, the lower court did not err in ruling that there is direct as well as circumstantial evidence to
prove accused-appellants guilt beyond reasonable doubt.
Anent the issue as to whether the responses uttered by Avila, Jr. shortly before his death
identifying accused-appellant as the one who shot him satisfies the requisites of a dying
declaration, the rule is that the following elements must concur for said declaration to be
admissible in evidence: (1) the dying declaration must concern the cause and surrounding
circumstances of the declarants death; (2) at the time it was made, the declarant was under a
consciousness of impending death; (3) the declarant must have been competent to testify as a
witness; and (4) the declaration is offered in a criminal case for homicide, murder or parricide in
which the declarant was the victim.[64]
 Although Avila, Jr. did not expressly state that he was dying when he made the
declaration, the circumstances surrounding such declaration show that the same was uttered by
him under the concsiousness of impending death. It has been held in a number of cases that even
if a declarant did not make a statement that he was on the brink of death, a dying declaration may
be admissible if there are circumstances from which it may be inferred with certainty that such was
his state of mind.[65] Thus, the Court in People vs. Taeza[66] and People vs. Serrano[67] held that the
fact that the victim died shortly after making a declaration as to the identity of his killer, gives rise
to the inference that the victim knew that he was dying at the time such declaration was made.
A dying declaration made in the form of answers to questions put by the person to whom the
declaration is made is admissible in court,[68] and may be proved by the testimony of the witness
who heard the same or to whom it was made. [69] Thus, the trial court did not err in admitting the
following testimony of Deguino in whose presence Avila, Jr. made the dying declaration:
Q: (PROS. MENOR)
Why did you proceed to the Surigao Provincial Hospital?
A: (PO DEGUINO)
To talk if I have to interrogate the person.
Q: Why do you want to talk to the victim?
A: To ask the assailant as he was the victim. To ask the assailant.
Q: When you proceeded what time if you can recall?
A: I reached the hospital about three oclock in the morning.
Q: What did you do after arriving at the hospital?
A: When I reached the hospital I saw Cabada talking to the victim.
Q: What is the condition of the victim at the time questioning the victim?
A: He was dying.
Q: And what did you do?
A: And then I told this is Jun, this is Bebot. I placed my mouth near his ear.
Q: And what did you say?
xxx
A: Jun, this is your friend Bebot, then after that his eyes opened and then demonstrated by raising
his hand and then resuming his former position.
Q: And then after that what happened? If any?
A: And knowing his serious condition I hurriedly asked him, Jun I asked him do you know the
person who shot you?
Q: Will you please demonstrate how you asked the victim?
A: I placed my mouth close to his ear and I was practically embracing him.
Q: Was there any answer from the victim?
A: In my third question, he answered yes.
xxx
Q: And after hearing that reply, what did you do next?
A: Then I again asked him, kinsa man? who is he? a policeman?
Q: Will you please demonstrate how did you ask the victim?
A: The same position my mouth in his ear and.
 Q: And did you receive the reply?
A: And he answered, yes.
Q: And after that what did you do?
A: He was breathing hard after that I still try to question him and I still ask him, was it Akib?
Q: When you used the word Akib to whom are you referring?
A: A policeman.
Q: How many Akib in the police force and who is this?
A: (Witness referring to the accused).
Q: Did you receive a reply immediately?
A: I kept on repeating the question. About 8 times. He answered yes.
And then I stood up and I was... and my body hair rose as I could not believe it.
x x x[70]
In addition to the dying declaration of the victim, there are several circumstances which, taken
together, indubitably point to the guilt of accused-appellant: (1) accused-appellant was present at
Casa Blanca in the early morning of July, 8, 1995, the date and approximate time of the
murder;[71] (2) accused-appellant and his girlfriend Maritess were arguing near the gate of Casa
Blanca at the time Avila, Jr. was leaving the restaurant; [72] (3) as Avila, Jr. was turning to the right
side of the gate of Casa Blanca to Narciso St., a lone gunshot was fired, and at that time the
accused-appellant was only a few meters away from the victim;[73] (4) shortly after the gunshot was
heard, accused-appellants girlfriend Maritess went back inside Casa Blanca told both Dorothy
Rivera and Kit Aguilar that accused-appellant had fired a warning shot and asked them not to tell
anyone about it;[74] (5) accused-appellant had in his possession a .38 revolver issued to him by the
Philippine National Police (PNP);[75] (6) accused-appellants right hand as well as the
aforementioned revolver tested positive for gunpowder residue as found by the forensic analyst of
the PNP Crime Laboratory;[76] and (7) shortly after Avila, Jr. was shot, he confided to witness Ramil
Llorado that he was shot by a policeman.[77]
The Court has previously held that circumstantial evidence will suffice to support a conviction
where (1) there is more than one circumstance, (2) the facts from which the inferences are derived
are proven, and (3) the combination of all the circumstances is sufficient to produce a conviction
beyond reasonable doubt.[78] In other words, when the circumstantial evidence is not only
consistent with guilt but also inconsistent with the hypothesis that the accused is innocent and with
every other reasonable hypothesis except guilt.[79]
It must also be pointed out that no error was committed by the trial court in admitting the
respective testimonies of Dorothy Rivera and Kit Aguilar that Maritess told them that accused-
appellant had fired a warning shot in the early morning of July 8, 1995, since the same were
offered not to establish the truth of Maritess statement, but only to show that Maritess uttered the
same.[80]
The accused-appellants alibi cannot prevail over the direct and circumstantial evidence
against him, especially considering that it was not physically impossible for him to be at Casa
Blanca in the early morning of July 8, 1995.[81] As was noted by the trial court, Firmas Lodge in
Borromeo Street, where accused was allegedly dropped off by his companions in the early
morning of July 8, 1995 after they went to Barangay Lipata, and Casa Blanca in Narciso Street,
where Avila, Jr. was shot, can be negotiated in twenty minutes by foot, and within a shorter time if
one takes a short cut or rides a vehicle.[82]
The Court likewise agrees with the trial courts finding that the killing of Avila, Jr. was qualified
by treachery. Treachery is present where the attack was unexpected and sudden, giving the
unarmed victim no chance whatsoever to defend himself.[83] It was established during the trial that
Avila, Jr. was leaving Casa Blanca and turning right to Narciso St. in the early morning of July 8,
1995 when he was suddenly shot from behind by accused-appellant, rendering him unable to
defend himself. The treacherousness of the shooting of the victim can also be inferred from the
fact that the bullet entered the victims body at the right lumbar area, almost at the back of the
victim. The testimony of Dr. Relliquete, the physician who examined Avila, Jr. shortly after he was
shot supports the lower courts finding:
xxx
Q: And the entry wound as you have pointed out was on the right lumbar area which is almost at
the back of the victim? Correct?
A: Yes.
Q: And with that can you prove can you conclude doctor [that the assailant] possibly was behind
the victim when he shot [the latter]?
A: Possibly.
xxx
Q: How did you conclude the injuries sustained by the victim was the result of the gunshot wound?
A: Well, I have seen for many times of the gunshot is different from the stabbed wound.
Q: What is the characteristics of distinguished or stabbed wound and the wound inflected (sic)
other than gunshot or the firearm?
A: Well, on the gunshot I saw it the wound was contused and unlike stabbed wound they are
incised sharp wound.
Q: What was the form of the wound of entry?
A: Circular.[84]
All the foregoing prove beyond reasonable doubt that the accused-appellant is guilty of the
crime of murder.
WHEREFORE, the Decision dated January 24, 1997 of the Regional Trial Court of Surigao
City, Branch 32 in Criminal Case No. 4564 is hereby AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Pardo, and Ynares-Santiago, JJ., concur.

[1]
People of the Philippines, Plaintiff, vs. PO3 Akib Norrudin, Accused.
[2]
Records, p. 1.
[3]
TSN, October 25, 1995, pp. 23-24.
[4]
Id., at 24-26.
[5]
Id., at 26-28.
[6]
Id., at 28-29.
[7]
TSN, September 27, 1995, p. 55.
[8]
Id., at 56.
[9]
TSN, December 5, 1995, pp. 7-8.
[10]
Id., at 8; see also p. 6.
[11]
Id., at 9-10.
[12]
Id., at 10-13.
[13]
TSN, October 25, 1995, pp. 40-42.
[14]
Id., at 42-43.
[15]
Id., at 44.
[16]
Id., at 45-46.
[17]
Id., at 47.
[18]
TSN, January 30, 1996, p. 12.
[19]
Id., at 5-9.
[20]
Id., at 9-11.
[21]
TSN, September 27, 1995, pp. 56-57.
[22]
Id., at 58.
[23]
Id., at 59.
[24]
Id., at 61.
[25]
Id., at 62.
[26]
Id.
[27]
Id., at 64.
[28]
Id.
[29]
TSN, September 25, 1995, pp. 6-7.
[30]
Id., at 8.
[31]
Id., at 9-10.
[32]
Id., at 11.
[33]
Id., at 11-13.
[34]
TSN, September 26, 1995, pp.15-19.
[35]
Id., at 22; Exhibit C, Records, p. 28.
[36]
Id., at 23, 25.
[37]
Id., at 25; Exhibit E, Records, p. 56.
[38]
TSN, September 27, 1995, p. 18.
[39]
Id., at 19.
[40]
Id., at 21-22.
[41]
TSN, September 27, 1995, pp.4-5.
[42]
Exhibit G, Records, p. 57.
[43]
Exhibit H, Id., at 58.
[44]
TSN, September 27, 1995, pp 6-12; Exhibit H, Records, p. 58.
[45]
Exhibit H, Id.
[46]
TSN, July 1, 1996, pp. 7-10.
[47]
Id., at 11-12.
[48]
Id., at 12.
[49]
Id., at 16-17.
[50]
Id., at 19.
[51]
TSN, September 22, 1996, pp. 5-9.
[52]
TSN, September 2, 1996, pp. 29-32.
[53]
94 SCRA 613 (1979).
[54]
167 SCRA 516 (1988).
[55]
Appellants Brief, Rollo, p. 48.
[56]
Id., at 49.
[57]
Id., at 50-54.
[58]
Id., at 55-59.
[59]
Id., at 60.
[60]
Appellees Brief, Rollo, p. 106.
[61]
Id., at 106-1110.
[62]
Id., at 110-124.
[63]
People vs. Francisco and Mansamad, 333 SCRA 725 (2000).
[64]
People vs. Taeza, 334 SCRA 30 (2000).
[65]
Id.; People vs. Serrano, 58 Phil. 669 (1933); People vs. Chan Lin Wat, 50 Phil. 182 (1927).
[66]
Supra.
[67]
Supra.
[68]
People vs. Bocatcat, 188 SCRA 175 (1990); People vs. Obngayan, 55 SCRA 466 (1974); see also McKelvey on
Evidence, p. 330.
[69]
U.S. vs. Gil, 13 Phil 530 (1909); U.S. vs. Montes, 6 Phil. 443 (1906).
[70]
TSN, September 27, 1995, pp. 61-64.
[71]
TSN, October 25, 1995, pp. 26-28, 40-42; December 5, 1995, pp. 9-13.
[72]
Id., at 41-42; Id., at 9-10.
[73]
Id., at. 11; Id., at 40-42.
[74]
Id., at 12; Id., at 42-44.
[75]
TSN, October 25, 1995, p. 24.
[76]
TSN, September 26, 1995, pp. 15-25; Exhibit C, Records, p. 28; Exhibit E, Id., at 56.
[77]
TSN, January 30, 1996, pp. 9-11.
[78]
People vs. Santos and Tamayo, 332 SCRA 394 (2000); People vs. Dacibar and Dicon, 325 SCRA 725 (2000).
[79]
Id.; H.C. UNDERHILL, AS TREATISE ON THE LAW OF THE LAW OF CRIMINAL EVIDENCE, 20-21 (5TH
REVISED ED., 1956).
[80]
See 29 Am Jur 2d 708, Evidence, 664.
[81]
See People vs. Reanzares, 334 SCRA 624 (2000).
[82]
RTC Decision, p. 12, Rollo, p. 76.
[83]
People vs. Dacibar and Dicon, supra; People vs. Francisco and Mansamad, supra.
[84]
TSN, September 27, 1995, pp. 21-23.
 Republic of the Philippines
SUPREME COURT
Baguio City

THIRD DIVISION

G.R. No. 152364 April 15, 2010

ALEJANDRA S. LAZARO, assisted by her husband, ISAURO M. LAZARO; LEONCIO D. SANTOS;

ADOLFO SANTOS; NENITA S. LACAR; ANGELINA S. SAGLES, assisted by her husband, ALBERTO
SANTOS, JR.; REGINA SANTOS and FABIAN SANTOS, Petitioners,
vs.
MODESTA AGUSTIN, FILEMON AGUSTIN, VENANCIA AGUSTIN, MARCELINA AGUSTIN, PAUL A.
DALALO, NOEL A. DALALO, GREGORIO AGUSTIN and BIENVENIDO AGUSTIN, Respondents.

DECISION

PERALTA, J.:

Assailed in the present petition for review on certiorari is the Decision1 dated February 21, 2002 of the Court of
Appeals (CA) in CA-G.R. SP No. 63321. The CA had affirmed, with modification, the Decision2 dated February 6,
2001 of the Regional Trial Court (RTC) of Laoag City, Branch 13, in Civil Case No. 11951-13, which also
affirmed, with modification, the Decision3 dated January 6, 2000 of the Municipal Trial Court in Cities (MTCC) of
Laoag City, Branch 1, in Civil Case No. 2834.

The factual and procedural antecedents of the case are as follows:

On November 4, 1998, herein petitioners filed against herein respondents a Complaint4 for partition with the
MTCC of Laoag City, alleging as follows:

xxxx

II

That the plaintiffs and the defendants are the descendants of the late Simeon C. Santos, married to
Trinidad Duldulao, who died intestate leaving a parcel of land situated in the Barrio of Natividad Nstra.
Sra., Municipality of Laoag, designated as Lot No. 10675 of the Cadastral Survey of Laoag;

III

That Simeon C. Santos during his lifetime, married to Trinidad Duldulao, begot four (4) legitimate
children, namely: Basilisa D. Santos, Alberto D. Santos, Leoncio D. Santos and Alejandra D. Santos.
Basilisa D. Santos, [who] was married to Petronilo Agustin, is now deceased; Alberto Santos, married to
Rizalina Guerrero, is now deceased, while Leoncio D. Santos, married to Dictinia Tabeta, and Alejandra
D. Santos married to Isauro M. Lazaro, are still living;

IV

That in the desire of the children of Simeon C. Santos from whom the parcel of land originated as owner,
his children, namely[:] Alberto, Leoncio and Alejandra, all surnamed Santos, consented that the parcel of
land mentioned in paragraph II of this complaint be titled in the name of Basilisa, the latter being the
eldest and so Original Certificate of Title No. 20742 in the name of Basilisa Santos was obtained
although it was agreed among them that it did not and does not necessarily mean that Basilisa Santos is
the sole and exclusive owner of this parcel of land, and as embodied in the Title obtained in the name of
Basilisa Santos, the parcel of land is particularly described as follows:

A parcel of land (Lot No. 10676 of the Cadastral survey of Laoag), with the improvements thereon,
situated in the Barrio of Natividad Nstra. Sra., Municipality of Laoag. Bounded on the NE. by Lot No.
10677; on the SE. by Panganiban Street; on the SW. by Lot No. 10672; and on NW. by Lot No. 1065,
containing an area of three hundred and one (301) square meters, more or less, covered by Tax
 Declaration No. 010-00224 for the year 1994 in the names of Modesta Agustin, et al. with a market value
of P96,320.00 and an assessed value of P14,450.00.

That there is a residential house constructed on the lot described in paragraph IV of this complaint and in
the construction of which plaintiff Alejandra Santos, then still single, spent the amount of P68,308.60,
while Basilisa Santos and her children spent the amount of P3,495.00. Afterwards, Alejandra Santos got
married to Isauro M. Lazaro who was employed in a private company and when he retired from the
service, some additional constructions were made on the residential house and lot such as a bedroom,
azotea, two (2) toilets, two (2) kitchens, a car garage, the money spent for these additional constructions
came from the earnings of the spouses Alejandra Santos-Lazaro and Isauro M. Lazaro. The said
residential house is now covered by Tax Declaration No. 010-00225 in the names of Basilio Agustin
(should be Basilisa Agustin) and Alejandra Santos for the year 1994 with a market value of P93,920.00
and an assessed value of zero;

VI

That without the knowledge and consent of the plaintiffs, the title of the lot described in paragraph IV of
the complaint was transferred into another title which is now Transfer Certificate of Title No. T-20695 in
the names of Modesta Agustin, Filemon Agustin, Venancia Agustin, Marcelina Agustin, Monica Agustin,
Gregorio Agustin and Bienvenido Agustin who are the children of the late Basilisa Santos-Agustin who
are herein named as defendants with Monica Agustin now deceased represented by her children Paul A.
Dalalo and Noel A. Dalalo as defendants;

VII

That during the lifetime of Basilisa Santos-Agustin, plaintiff Alejandra Santos-Lazaro informed the former,
who are sisters, that the transfer of the title covering the lot described in paragraph IV of this complaint in
the name of Basilisa Santos into the names of her children would erroneously imply that the lot is solely
and exclusively owned by Basilisa Santos-Agustin's children, but Basilisa Santos-Agustin replied [to]
plaintiff Alejandra Santos-Lazaro not to worry because an affidavit was already executed by her
recognizing and specifying that her brothers Alberto Santos and Leoncio Santos, and her sister
Alejandra Santos-Lazaro would each get one fourth () share of the lot;

VIII

That in a move to determine if the children and the heirs of Basilisa Santos-Agustin, namely: Modesta
Agustin, Filemon Agustin, Venancia Agustin, Marcelina Agustin, Paul Dalalo and Noel Dalalo who are
the successors of their mother the late Monica Agustin, Gregorio Agustin and Bienvenido Agustin would
follow the line of thinking of their mother and grandmother of Paul A. Dalalo and Noel A. Dalalo on the
shares of the lot and residential house erected on it, the plaintiffs initiated a partition in the barangay
court where the lot is situated described in paragraph IV of this complaint, but that the children of
Basilisa Santos-Agustin and her grandchildren Paul A. Dalalo and Noel A. Dalalo refused and opposed
the partition claiming that they are the sole and exclusive owners of the lot being that the lot is now titled
in their names, and hence there was no settlement as shown by the certification of the barangay court
hereto attached as annex "A";

IX

That plaintiffs now invoke the intervention of the court to partition the lot in accordance with the law on
intestate succession and to partition the residential house as specified below. x x x

x x x x5

Petitioners also prayed for the grant of attorney's fees, moral and exemplary damages, and costs of suit.

Herein respondents filed their Answer with Counterclaim,6 raising the following as their Special/Affirmative
Defenses:
 1. The subject parcel of land is owned exclusively by the defendants as heirs of the late Basilisa Santos,
wife of Petronilo Agustin, who was the original registered owner of the property evidenced by OCT No.
20742; the plaintiffs never became owners of said land. There was never any agreement between the
ascendants of the plaintiffs and defendants, neither is there any agreement between the plaintiffs and
defendants themselves that in the ownership, the plaintiffs have a share over the lot;

2. The defendants are the ones paying for the real estate taxes of said land;

3. Some of the plaintiffs were able to stay on the subject house because defendants' mother Basilisa
Santos was the eldest sibling and she had to take care of her brother Leoncio and sister Alejandra when
these siblings were not yet employed and Basilisa allowed them to reside in the house constructed within
the lot; Alejandra Santos stayed in the house up to the present with the agreement that she will spend for
the renovation of the house in lieu of monthly rentals that she has to pay when she already became
financially able;

4. Prior to 1962, subject property was mortgaged by Basilisa Santos Agustin to the Philippine National
Bank and the property was foreclosed by PNB when the loan was not paid, hence, TCT No. (T-9522)-
4495, under the name of the Philippine National Bank was issued (Annex "A"). Thereafter, Basilisa
Santos-Agustin, purchased it from the PNB and TCT No. T-5662 was issued under her name (Annex
"B"); the property was later on transferred to her direct descendants, the defendants herein as evidenced
by TCT No. T-20695 (Annex "C");

x x x x7

Respondents then prayed that petitioners' complaint be dismissed. In their Counterclaim, respondents asked the
court to direct petitioners to pay reasonable compensation for the latter's use of the disputed property, exemplary
and moral damages, attorney's fees, and costs of suit.

After the issues were joined and the pre-trial was terminated, trial on the merits ensued.

On January 6, 2000, the MTCC rendered its Decision8 dismissing the complaint and denying petitioners' prayer
for partition.

The MTCC ruled, among others, that no evidentiary value could be given to the affidavit allegedly executed by
Basilisa, wherein she purportedly acknowledged her co-ownership of the subject property with her siblings
Alberto, Leoncio and Alejandra, because the affiant was not presented on the witness stand, such that all the
statements made in her affidavit were hearsay. Moreover, the MTCC held that two credible witnesses testified in
plain, simple and straightforward manner that at the time the affidavit was supposed to have been signed and
sworn to before the notary public, Basilisa was already bedridden and an invalid who could not even raise her
hand to feed herself. In addition, the MTCC also gave credence to the testimony of the notary public, before
whom the document was supposedly signed and sworn to, that the said affidavit was already complete and
thumbmarked when the same was presented to him by a person who claimed to be Basilisa.

Petitioners filed an appeal with the RTC of Laoag City.

On February 6, 2001 the RTC issued a Decision9 affirming, with modification, the judgment of the MTCC. The
RTC found that the house erected on the disputed lot was built and renovated by petitioners in good faith. As a
consequence, the RTC held that petitioners were entitled to indemnity representing the costs of the construction
and renovation of the said house. The dispositive portion of the RTC Decision, thus, reads:

WHEREFORE, the decision of the lower court is hereby affirmed with the modification directing the appellees
[herein respondents] to indemnify the appellants [herein petitioners] in the amount of P68,308.60 as proved by
them.

Considering the apparent error of the lower court in quoting the questioned lot as Lot No. 10675, the same is
hereby corrected so as to reflect the correct lot number as Lot No. 10676 to conform to the evidence presented.

SO ORDERED.10

Aggrieved by the RTC Decision, petitioners filed a petition for review with the CA.
On February 21, 2002, the CA issued its presently assailed Decision disposing as follows:

WHEREFORE, the decision dated February 6, 2001 rendered in Civil Case No. 11951-13 is hereby AFFIRMED
subject to the MODIFICATION that appellees [herein respondents] pay the amount of P68,308.60 in indemnity
solely to appellant Alejandra Santos-Lazaro.

SO ORDERED.11

Hence, the instant petition based on the following grounds:

I. THE SWORN STATEMENT OF BASILISA S. AGUSTIN IS A DECLARATION AGAINST INTEREST WHICH

ESTABLISHES THE CO-OWNERSHIP OF LOT NO. 10676 BY AND AMONG THE PETITIONERS AND
RESPONDENTS AS HEIRS OF THE LATE SIMEON C. SANTOS.12

II. THE CO-OWNERSHIP OF LOT NO. 10676 BY AND AMONG BASILISA S. AGUSTIN, ALBERTO D.
SANTOS, ALEJANDRA S. LAZARO AND LEONCIO D. SANTOS DID NOT TERMINATE AS A RESULT OF
THE TRANSFER OF THE LOT'S OWNERSHIP PRECIPITATED BY ACTS OF BASILISA S. AGUSTIN WITH
RESPECT TO THE SUBJECT PROPERTY.13

III. PETITIONER ALEJANDRA S. LAZARO IS A CO-OWNER OF THE RESIDENTIAL HOUSE ON LOT NO.
10676 NOT MERELY A BUILDER IN GOOD FAITH WITH RESPECT THERETO AND AS SUCH, IS ENTITLED
TO A PARTITION OF THE SUBJECT HOUSE.14

In their first assigned error, petitioners contend that Basilisa's sworn statement which recognizes her siblings'
share in the disputed property is a declaration against interest which is one of the recognized exceptions to the
hearsay rule. Petitioners argue that since the sworn statement was duly notarized, it should be admitted in court
without further proof of its due execution and authenticity; that the testimonies of Basilisa's nurse and physician
cannot qualify as clear and convincing evidence which could overthrow such notarized document; that the notary
public cannot impugn the same document which he notarized for to do so would render notarized documents
worthless and unreliable resulting in prejudice to the public.

As to the second assigned error, petitioners aver that their co-ownership of the questioned property with Basilisa
did not cease to exist when the Philippine National Bank (PNB) consolidated its ownership over the said parcel
of land. Petitioners assert that they did not lose their share in the property co-owned when their share was
mortgaged by Basilisa without their knowledge and consent; that the mortgage was limited only to the portion
that may be allotted to Basilisa upon termination of their co-ownership; that PNB acquired ownership only of the
share pertaining to Basilisa; that when Basilisa bought back the property from PNB, she simply re-acquired the
portion pertaining to her and simply resumed co-ownership of the property with her siblings. Petitioners also
contend that Basilisa's children did not acquire ownership of the subject lot by prescription, and that neither
Basilisa nor respondents repudiated their co-ownership.

Anent the third assignment of error, petitioners argue that Alejandra Lazaro, being a co-owner of the disputed
parcel of land and not simply a builder in good faith, is entitled to a partition of the subject residential house.

At the outset, it bears to point out that it is wrong for petitioners to argue that Basilisa's alleged sworn statement
is a declaration against interest. It is not a declaration against interest. Instead, it is an admission against
interest.
1avv phi 1

Indeed, there is a vital distinction between admissions against interest and declarations against interest.
Admissions against interest are those made by a party to a litigation or by one in privity with or identified in legal
interest with such party, and are admissible whether or not the declarant is available as a witness.15 Declarations
against interest are those made by a person who is neither a party nor in privity with a party to the suit, are
secondary evidence, and constitute an exception to the hearsay rule. They are admissible only when the
declarant is unavailable as a witness.16 In the present case, since Basilisa is respondents' predecessor-in-
interest and is, thus, in privity with the latter's legal interest, the former's sworn statement, if proven genuine and
duly executed, should be considered as an admission against interest.

A cursory reading of the subject sworn statement also reveals that it refers to a parcel of land denominated as
Lot No. 10678 while the property being disputed is Lot No. 10676.17 On this basis, it cannot be concluded with
certainty that the property being referred to in the sworn statement is the same property claimed by petitioners.
Having made the foregoing observations and discussions, the question that arises is whether the subject sworn
statement, granting that it refers to the property being disputed in the present case, can be given full faith and
credence in view of the issues raised regarding its genuineness and due execution.

The Court rules in the negative.

Settled is the rule that generally, a notarized document carries the evidentiary weight conferred upon it with
respect to its due execution, and documents acknowledged before a notary public have in their favor the
presumption of regularity.18 However, this presumption is not absolute and may be rebutted by clear and
convincing evidence to the contrary.19

Moreover, not all notarized documents are exempted from the rule on authentication.20 Thus, an affidavit does
not automatically become a public document just because it contains a notarial jurat.21 The presumptions that
attach to notarized documents can be affirmed only so long as it is beyond dispute that the notarization was
regular.22

However, a question involving the regularity of notarization as well as the due execution of the subject sworn
statement of Basilisa would require an inquiry into the appreciation of evidence by the trial court. It is not the
function of this Court to review, examine and evaluate or weigh the probative value of the evidence presented. A
question of fact would arise in such event. Settled is the rule that questions of fact cannot be raised in an appeal
via certiorari before the Supreme Court and are not proper for its consideration.23 The rationale behind this
doctrine is that a review of the findings of fact of the trial courts and the appellate tribunal is not a function this
Court normally undertakes.24 The Court will not weigh the evidence all over again unless there is a showing that
the findings of the lower courts are totally devoid of support or are clearly erroneous so as to constitute serious
abuse of discretion.25 Although there are recognized exceptions26 to this rule, none exists in the present case to
justify a departure therefrom.

Petitioners rely heavily on the presumption of regularity accorded by law to notarized documents. While indeed,
a notarized document enjoys this presumption, the fact that a deed is notarized is not a guarantee of the validity
of its contents.27 As earlier discussed, the presumption is not absolute and may be rebutted by clear and
convincing evidence to the contrary.28 The presumption cannot be made to apply to the present case because
the regularity in the execution of the sworn statement was challenged in the proceedings below where its prima
facie validity was overthrown by the highly questionable circumstances under which it was supposedly executed,
as well as the testimonies of witnesses who testified on the improbability of execution of the sworn statement, as
well as on the physical condition of the signatory, at the time the questioned document was supposedly
executed. The trial and appellate courts were unanimous in giving credence to the testimonies of these
witnesses. The Court has repeatedly held that it will not interfere with the trial court's determination of the
credibility of witnesses, unless there appears on record some fact or circumstance of weight and influence which
has been overlooked or the significance of which has been misinterpreted.29 The reason for this is that the trial
court was in a better position to do so, because it heard the witnesses testify before it and had every opportunity
to observe their demeanor and deportment on the witness stand.30

Considering the foregoing, the Court finds no reason to reverse the rulings of the MTCC, the RTC and the CA.
Although the questioned sworn statement is a public document having in its favor the presumption of regularity,
such presumption was adequately refuted by competent witnesses.

The Court further agrees with the ruling of the RTC that:

The testimony of [the notary public] Atty. Angel Respicio did not suffice to rebut the evidence of the appellees
considering his admission that the affidavit was already thumbmarked when presented to him by one who
claimed to be Basilisa Santos and whom, the witness said he did not know personally. Further, what makes the
documents suspect is the fact that it was subscribed on the same date as the financial statement of Alejandra
Santos.

It may not be amiss to point out, at this juncture, that the principal function of a notary public is to authenticate
documents.31 When a notary public certifies to the due execution and delivery of a document under his hand and
seal, he gives the document the force of evidence.32 Indeed, one of the purposes of requiring documents to be
acknowledged before a notary public, in addition to the solemnity which should surround the execution and
delivery of documents, is to authorize such documents to be given without further proof of their execution and
delivery.33 A notarial document is by law entitled to full faith and credit upon its face. Courts, administrative
agencies and the public at large must be able to rely upon the acknowledgment executed before a notary public
and appended to a private instrument.34 Hence, a notary public must discharge his powers and duties, which are
impressed with public interest, with accuracy and fidelity.35 A notary public should not notarize a document
unless the persons who signed the same are the very same persons who executed and personally appeared
before him to attest to the contents and truth of what are stated therein.36

In the instant case, the notary public should have exercised utmost diligence in ascertaining the true identity of
the person executing the said sworn statement. However, the notary public did not comply with this requirement.
He simply relied on the affirmative answers of the person appearing before him attesting that she was Basilisa
Santos; that the contents of the sworn statement are true; and that the thumbmark appearing on the said
document was hers. However, this would not suffice. He could have further asked the person who appeared
before him to produce any identification to prove that she was indeed Basilisa Santos, considering that the said
person was not personally known to him, and that the thumbmark appearing on the document sought to be
notarized was not affixed in his presence. But he did not. Thus, the lower courts did not commit any error in not
giving evidentiary weight to the subject sworn statement.

The second and third assigned errors proceed on the presumption that petitioners are co-owners of the disputed
property. Since the Court has already ruled that the lower courts did not err in finding that petitioners failed to
prove their claim that they were co-owners of the said property, there is no longer any need to discuss the other
assigned errors.

WHEREFORE, the petition is DENIED. The February 21, 2002 Decision of the Court of Appeals in CA-G.R. SP
No. 63321 is AFFIRMED.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

RENATO C. CORONA
Associate Justice
Chairperson

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.

RENATO C. CORONA
Associate Justice
Third Division, Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer
of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice
Footnotes

1Penned by Associate Justice Oswaldo D. Agcaoili, with Associate Justices Jose L. Sabio, Jr. and
Sergio L. Pestao, concurring; rollo, pp. 62-72.

2 Records, pp. 301-305.

3 Id. at 266-269.

4 Id. at 1-7.

5 Id. at 2-4.

6 Id. at 20-23.

7 Id. at 21-22.

8 Rollo, pp. 53-56.

9 Id. at 57-61.

10 Id. at 61.

11 Id. at 72.

12 Id. at 21.

13 Id. at 26.

14 Id. at 29.

15 Unchuan v. Lozada, G.R. No. 172671, April 16, 2009, 585 SCRA 421, 435.

16 Id.

17 See Exhibit "C," records, p. 85.

18De Jesus v. Court of Appeals, G.R. No. 127857, June 20, 2006, 491 SCRA 325, 334; Pan Pacific
Industrial Sales Co., Inc. v. Court of Appeals, G.R. No. 125283, February 10, 2006, 482 SCRA 164, 174.

19 Potenciano v. Reynoso, 449 Phil. 396, 406 (2003).

20 Cequea v. Bolante, 386 Phil. 419, 427 (2000).

21 Id.

22 Dela Rama v. Papa, G.R. No. 142309, January 30, 2009, 577 SCRA 233, 244.

23 Cabang v. Basay, G.R. No. 180587, March 20, 2009, 582 SCRA 172, 186.

24 Id.

25 Id. at 186-187.

26These recognized exceptions are: (1) when the findings are grounded entirely on speculation,
surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3)
when there is 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 in making its findings, the Court of Appeals went
beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the
appellee; (7) when the findings are contrary to those of the trial court; (8) when the findings 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 respondent; (10)
when the findings of fact are premised on the supposed absence of evidence and contradicted by the
evidence on record (Bernaldo v. The Ombudsman and the Department of Public Works and Highways,
G.R. No. 156286, August 13, 2008, 562 SCRA 60); and (11) when the Court of Appeals manifestly
overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify
a different conclusion (Superlines Transportation Co., Inc. v. Philippine National Coordinating Council,
G.R. No. 169596, March 28, 2007, 519 SCRA 432, 441, citing Insular Life Assurance Co., Ltd. v. Court
of Appeals, 428 SCRA 79, 85-86 [2004]; see also Grand Placement and General Services Corporation v.
Court of Appeals, G.R. No. 142358, January 31, 2006, 481 SCRA 189, 202, citing Mayon Hotel &
Restaurant v. Adana, 458 SCRA 609, 624 [2005]; Castillo v. NLRC, 367 Phil. 603, 619 [1999] and
Insular Life Assurance Co. Ltd. v. CA, supra; Sampayan v. Court of Appeals, G.R. No. 156360, January
14, 2005, 448 SCRA 220, 229, citing Insular Life Assurance Co. Ltd. v. Court of Appeals,, supra, citing
Langkaan Realty Development, Inc. v. United Coconut Planters Bank, 400 Phil. 1349, 1356 [2000];
Nokom v. National Labor Relations Commission, 390 Phil. 1228, 1242-1243 [2000] and Sta. Maria v.
Court of Appeals, 349 Phil. 275, 282-283 [2000]; Aguirre v. Court of Appeals, 421 SCRA 310, 319
[2004]; C & S Fishfarm Corporation v. Court of Appeals, 442 Phil. 279, 288 [2002]).

27 San Juan v. Offril, G.R. No. 154609, April 24, 2009, 586 SCRA 439, 445-446.

28China Banking Corporation, Inc. v. Court of Appeals, G.R. No. 155299, July 24, 2007, 528 SCRA 103,
110.

29 San Juan v. Offril, supra note 27.

30 Id. at 446-447.

31 Vda. de Bernardo v. Restauro, 452 Phil. 745, 751 (2003).

32 Id.

33 Id.

34 Id.

35 Id.

36 Bautista v. Bernabe, A.C. No. 6963, February 9, 2006, 482 SCRA 1, 6.

 Republic of the Philippines
SUPREME COURT
Baguio City

FIRST DIVISION

G.R. NO. 146556 April 19, 2006

DANILO L. PAREL, Petitioner,

vs.
SIMEON B. PRUDENCIO, Respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

Before us is a petition for review on certiorari filed by Danilo Parel (petitioner) which seeks to set aside the
Decision1 dated March 31, 2000 of the Court of Appeals (CA) which reversed the Decision of the Regional Trial
Court (RTC), Branch 60, Baguio, in Civil Case No. 2493-R, a case for recovery of possession and damages.
Also assailed is CA Resolution2 dated November 28, 2000.

On February 27, 1992, Simeon Prudencio (respondent) filed a complaint for recovery of possession and
damages against petitioner with the RTC Baguio alleging that: he is the owner of a two-storey residential house
located at No. 61 Forbes Park National Reservation near Department of Public Service (DPS) compound,
Baguio City; such property was constructed solely from his own funds and declared in his name under Tax
Declaration No. 47048; he commenced the construction of said house in 1972 until its completion three years
later; when the second floor of said house became habitable in 1973, he allowed petitioners parents, Florentino
(now deceased) and Susan Parel, to move therein and occupy the second floor while the construction of the
ground floor was on-going to supervise the construction and to safeguard the materials; when the construction of
the second floor was finished in 1975, respondent allowed petitioners parents and children to transfer and
temporarily reside thereat; it was done out of sheer magnanimity as petitioners parents have no house of their
own and since respondents wife is the older sister of Florentino, petitioners father; in November 1985,
respondent wrote Florentino a notice for them to vacate the said house as the former was due for retirement and
he needed the place to which petitioners parents heeded when they migrated to U.S. in 1986; however, without
respondents knowledge, petitioner and his family unlawfully entered and took possession of the ground floor of
respondents house; petitioners refusal to vacate the house despite repeated demands prompted respondent to
file the instant action for recovery of possession. Respondent also asked petitioner for a monthly rental
of P3,000.00 from April 1988 and every month thereafter until the latter vacates the said premises and surrender
possession thereof; and for moral and exemplary damages, attorneys fees and cost of suit.

Petitioner filed his Answer with Counterclaim alleging that: his parents are the co-owners of the said residential
house, i.e., the upper story belongs to respondent while the ground floor pertains to petitioners parents; he is
occupying the ground floor upon the instruction of his father, Florentino, with respondents full knowledge; his
parents spent their own resources in improving and constructing the said two-storey house as co-owners
thereof; the late Florentino was an awardee of the land on which the house stands and as a co-owner of the
house, he occupied the ground floor thereof; the demand to vacate was respondents attempt to deprive
petitioners parents of their rights as co-owner of the said house; that respondent had filed ejectment case as
well as criminal cases against them involving the subject house which were all dismissed. Petitioner asked for
the dismissal of the complaint and prayed for damages and attorneys fees.

After trial on the merits, the RTC rendered a Decision3 dated December 15, 1993, the dispositive portion of
which reads:

WHEREFORE, premises considered, the Court hereby declares that the house erected at No. 61 DPS
Compound, Baguio City is owned in common by the late Florentino Parel and herein plaintiff Simeon Prudencio
and as such the plaintiff cannot evict the defendant as heirs of the deceased Florentino Parel from said property,
nor to recover said premises from herein defendant.

Likewise, the plaintiff is ordered to:

(a) pay the defendant in the total sum of P20,000.00 for moral and actual damages;
 (b) pay the defendant P20,000.00 in Attorneys fees and P3,300.00 in appearance fees;

(c) pay the costs of this suit.4

The RTC found the following matters as conclusive: that petitioners father was an allocatee of the land on which
the subject house was erected, as one of the lowly-paid government employees at that time when then Mayor
Luis Lardizabal gave them the chance to construct their own house on said reservation; that respondent failed to
show proof of any contract, written or oral, express or implied, that the late Florentino and his family stayed on
the house not as co-owners but as mere lessees, nor any other proof that would clearly establish his sole
ownership of the house; and, that the late Florentino was the one who gathered the laborers for the construction
of the house and paid their salaries. Thus, the RTC ruled that co-ownership existed between respondent and
petitioners father, Florentino.

The RTC concluded that respondent and petitioners father agreed to contribute their money to complete the
house; that since the land on which said house was erected has been allocated to petitioners father, the parties
had the understanding that once the house is completed, petitioners father could keep the ground floor while
respondent the second floor; the trial court questioned the fact that it was only after 15 years that respondent
asserted his claim of sole ownership of the subject house; respondent failed to disprove that petitioners father
contributed his own funds to finance the construction of the house; that respondent did not question (1) the fact
that it was the deceased Florentino who administered the construction of the house as well as the one who
supplied the materials; and (2) the fact that the land was in Florentinos possession created the impression that
the house indeed is jointly owned by respondent and Florentino.

The RTC did not give credence to the tax declaration as well as the several documents showing the City
Assessors assessment of the property all in respondents name since tax declarations are not conclusive proof
of ownership. It rejected the affidavit executed by Florentino declaring the house as owned by respondent saying
that the affidavit should be read in its entirety to determine the purpose of its execution; that it was executed
because of an advisement addressed to the late Florentino by the City Treasurer concerning the propertys tax
assessment and Florentino, thought then that it should be the respondent who should pay the taxes; and that the
affidavit cannot be accepted for being hearsay.

Aggrieved by such decision, respondent appealed to the CA. In a Decision dated March 31, 2000, the CA
reversed the trial court and declared respondent as the sole owner of the subject house and ordered petitioner to
surrender possession of the ground floor thereof to respondent immediately. It also ordered petitioner to pay
respondent a monthly rental of P2,000.00 for use or occupancy thereof from April 1988 until the former actually
vacates the same and the sum of P50,000.00 as attorneys fees and cost of suit.

The CA found as meritorious respondents contention that since petitioner failed to formally offer in evidence any
documentary evidence, there is nothing to refute the evidence offered by respondent. It ruled that the trial courts
statement that "defendants occupancy of the house is due to a special power of attorney executed by his
parents most specially the deceased Florentino Parel who is in fact a co-owner of said building" is wanting of any
concrete evidence on record; that said power of attorney was never offered, hence, could not be referred to as
petitioners evidence to support his claim; that except for the bare testimonies of Candelario Regua, the
carpenter-foreman, that it was Florentino who constructed the house and Corazon Garcia, the former barangay
captain, who testified that the lot was allocated to petitioners father, there was no supporting document which
would sufficiently establish factual bases for the trial courts conclusion; and that the rule on offer of evidence is
mandatory.

The CA found the affidavit dated September 24, 1973 of Florentino, petitioners father, stating that he is not the
owner of the subject house but respondent, as conclusive proof of respondents sole ownership of the subject
house as it is a declaration made by Florentino against his interest. It also found the tax declarations and official
receipts representing payments of real estate taxes of the questioned property covering the period 1974 to 1992
sufficient to establish respondents case which constitute at least proof that the holder has a claim of title over
the property.

Petitioners motion for reconsideration was denied in a Resolution dated November 28, 2000. 1avv phil.net

Hence, the instant petition for review on certiorari with the following Assignment of Errors:

1. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING RESPONDENT AS THE OWNER
OF THE BUILDING AT 61 FORBES PARK NATIONAL RESERVATION, NEAR DPS COMPOUND, BAGUIO
CITY, NOTWITHSTANDING THE FINDING OF THE REGIONAL TRIAL COURT OF CO-OWNERSHIP
BETWEEN THE LATE FLORENTINO PAREL AND RESPONDENT;

2. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN ORDERING PETITIONER TO

SURRENDER POSSESSION OF THE GROUND FLOOR OF THE SUBJECT BUILDING TO RESPONDENT;

3. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN ORDERING PETITIONER TO PAY

RESPONDENT P2,000.00/MONTH FOR USE OR OCCUPANCY OF THE SUBJECT PREMISES FROM APRIL
1988 UNTIL PETITIONER ACTUALLY VACATES THE SAME;

4. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN ORDERING PETITIONER TO PAY TO

RESPONDENT P50,000.00 ATTORNEYS FEES AND COSTS OF SUIT;

5. THE HONORABLE COURT OF APPEALS ERRED IN DENYING PETITIONERS MOTION FOR

RECONSIDERATION. 5

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

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

Petitioner argues that the CA erred in finding the affidavit of petitioners father declaring respondent as owner of
the subject house as conclusive proof that respondent is the true and only owner of the house since the affidavit
should be read in its entirety to determine the purpose for which it was executed.

Petitioner further contends that since he had established his fathers co-ownership of the subject house,
respondent has no legal right to eject him from the property; that he could not be compelled to pay rentals for
residing in the ground floor of the subject house; that respondent should bear his own expenses and be
adjudged liable for damages which petitioner sustained for being constrained to litigate.

The principal issue for resolution is whether petitioner was able to prove by preponderance of evidence that his
father was a co-owner of the subject two-storey residential house.

The issue raised by petitioner is mainly factual in nature. In general, only questions of law are appealable to this
Court under Rule 45. However, considering that the findings of the RTC and CA are contradictory, the review of
the case is in order.7

We agree with the CA that respondent had shown sufficient evidence to support his complaint for recovery of
possession of the ground floor of the subject house as the exclusive owner thereof. Respondent presented the
affidavit dated September 24, 1973 executed by Florentino and sworn to before the Assistant City Assessor of
Baguio City, G.F. Lagasca, which reads:

I, FLORENTINO PAREL, 42 years of age, employee, and residing at Forbes Park, Reservation No. 1, after
having been sworn to according to law depose and say:

That he is the occupant of a residential building located at Forbes Park, Reservation No. 1, Baguio City which is
the subject of an advicement addressed to him emanating from the Office of the City Assessor, Baguio City, for
assessment and declaration for taxation purposes;

That I am not the owner of the building in question;

That the building in question is owned by Mr. Simeon B. Prudencio who is presently residing at 55 Hyacinth,
Roxas District, Quezon City.

Further, affiant say not.8 (Underscoring supplied)

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

SEC. 38. Declaration against interest. The declaration made by a person deceased, or unable to testify,
against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far
contrary to the declarant's own interest, that a reasonable man in his position would not have made the
declaration unless he believed it to be true, may be received in evidence against himself or his successors-in-
interest and against third persons.

The theory under which declarations against interest are received in evidence notwithstanding they are hearsay
is that the necessity of the occasion renders the reception of such evidence advisable and, further that the
reliability of such declaration asserts facts which are against his own pecuniary or moral interest.9

The affiant, Florentino, who died in 1989 was petitioners father and had adequate knowledge with respect to the
subject covered by his statement. In said affidavit, Florentino categorically declared that while he is the occupant
of the residential building, he is not the owner of the same as it is owned by respondent who is residing in
Quezon City. It is safe to presume that he would not have made such declaration unless he believed it to be
true, as it is prejudicial to himself as well as to his childrens interests as his heirs.10 A declaration against interest
is the best evidence which affords the greatest certainty of the facts in dispute.11 Notably, during Florentinos
lifetime, from 1973, the year he executed said affidavit until 1989, the year of his death, there is no showing that
he had revoked such affidavit even when a criminal complaint for trespass to dwelling had been filed by
respondent against him (Florentino) and petitioner in 1988 regarding the subject house which the trial court
dismissed due to the absence of evidence showing that petitioner entered the house against the latters will and
held that the remedy of respondent was to file an action for ejectment;12 and even when a complaint for unlawful
detainer was filed against petitioner and his wife also in 1988 which was subsequently dismissed on the ground
that respondents action should be an accion publiciana which is beyond the jurisdiction of the Municipal Trial
Court.13

Moreover, the building plan of the residential house dated January 16, 1973 was in the name of respondent and
his wife. It was established during petitioners cross-examination that the existing structure of the two-storey
house was in accordance with said building plan.14

Notably, respondent has been religiously paying the real estate property taxes on the house declared under his
name since 1974.15 In fact, petitioner during his cross-examination admitted that there was no occasion that they
paid the real estate taxes nor declared any portion of the house in their name.16

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

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

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

xxx Simply put, he who alleges the affirmative of the issue has the burden of proof, and upon the plaintiff in a
civil case, the burden of proof never parts. However, in the course of trial in a civil case, once plaintiff makes out
a prima facie case in his favor, the duty or the burden of evidence shifts to defendant to controvert plaintiff's
prima facie case, otherwise, a verdict must be returned in favor of plaintiff. Moreover, in civil cases, the party
having the burden of proof must produce a preponderance of evidence thereon, with plaintiff having to rely on
the strength of his own evidence and not upon the weakness of the defendants. The concept of "preponderance
of evidence" refers to evidence which is of greater weight, or more convincing, that which is offered in opposition
to it; at bottom, it means probability of truth.19

In this case, the records show that although petitioners counsel asked that he be allowed to offer his
documentary evidence in writing, he, however, did not file the same.20 Thus, the CA did not consider the
documentary evidence presented by petitioner. Section 34 of Rule 132 of the Rules of Court provides:

Section 34. Offer of evidence. The court shall consider no evidence which has not been formally offered. The
purpose for which the evidence is offered must be specified.
A formal offer is necessary because it is the duty of a judge to rest his findings of facts and his judgment only
and strictly upon the evidence offered by the parties to the suit.21 It is a settled rule that the mere fact that a
particular document is identified and marked as an exhibit does not mean that it has thereby already been
offered as part of the evidence of a party.22

Petitioner insists that although his documentary evidence were not formally offered, the same were marked
during the presentation of the testimonial evidence, thus it can properly be taken cognizance of relying in Bravo,
Jr. v. Borja.23

Such reliance is misplaced. In Bravo Jr., we allowed evidence on minority by admitting the certified true copy of
the birth certificate attached to a motion for bail even if it was not formally offered in evidence. This was due to
the fact that the birth certificate was properly filed in support of a motion for bail to prove petitioners minority
which was never challenged by the prosecution and it already formed part of the records of the case. The rule
referred to in the Bravo case was Section 7 of Rule 133 of the Rules of Court which provides:

Section 7. Evidence on motion.- When a motion is based on facts not appearing of record, the court may hear
the matter on affidavits or depositions presented by the respective parties, but the court may direct that the
matter be heard wholly or partly on oral testimony or depositions.

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

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

The testimonies of petitioner and his witnesses failed to show that the subject house is co-owned by petitioners
father and respondent.

Candelario Regua merely testified that he was hired by petitioners father, Florentino, to construct the residential
building in 1972;24 that he listed the materials to be used for the construction which was purchased by
Florentino;25 that he and his men received their salaries every Saturday and Wednesday from Florentino or his
wife, respectively;26 that he had not met nor seen respondent during the whole time the construction was on-
going.27 On cross-examination, however, he admitted that he cannot tell where the money to buy the materials
used in the construction came from.28

Corazon Garcia merely testified that Florentino started building the house when he was allocated a lot at DPS
compound, that she knew Florentino constructed the subject house29 and never knew respondent. 30 The bare
allegation that Florentino was allocated a lot is not sufficient to overcome Florentinos own affidavit naming
respondent as the owner of the subject house.

Petitioner himself testified that it was his father who saw the progress of the construction and purchased the
materials to be used; 31 and as a young boy he would follow-up some deliveries upon order of his father 32 and
never saw respondent in the construction site. The fact that not one of the witnesses saw respondent during the
construction of the said house does not establish that petitioners father and respondent co-owned the house.

We also find that the CA did not err in ordering petitioner to pay respondent being the sole owner of the subject
house a monthly rental of P2,000.00 from April 1988, the date of the extra-judicial demand, until petitioner
actually vacates the subject house. Although the CA made no ratiocination as to how it arrived at the amount
of P2,000.00 for the monthly rental, we find the same to be a reasonable compensation for the use of the ground
floor of the subject house which consists of a living room, a dining room, a kitchen and three bedrooms. The
rental value refers to the value as ascertained by proof of what the property would rent or by evidence of other
facts from which the fair rental value may be determined. 33

We likewise affirm the CAs award of attorneys fees in favor of respondent. Article 2208 of the Civil Code allows
the recovery of attorneys fees in cases when the defendants act or omission has compelled the plaintiff to
litigate with third persons or to incur expenses to protect his interest 34 and in any other case where the court
deems it just and equitable that attorneys fees and expenses of litigation should be recovered 35 which are both
shown in the instant case.
WHEREFORE, the decision of the Court of Appeals dated March 31, 2000 and its Resolution dated November
28, 2000 are AFFIRMED.

Costs against petitioner.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson

CONSUELO YNARES-SANTIAGO ROMEO J. CALLEJO, SR.

Associate Justice Asscociate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts
Division.

ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes

1Penned by Associate Justice Corona Ibay-Somera (retired) and concurred in by Associate Justices
Portia Alio-Hormachuelos and Elvi John S. Asuncion; rollo, pp. 32-41.

2Penned by Associate Justice Portia Alio-Hormachuelos, concurred in by Associate Justices Martin S.

Villarama, Jr. and Elvi John S. Asuncion; Id. at 60-61.

3 Penned by Judge Pastor V. de Guzman, Jr.; Id. at 81-84.

4 Id. at 84.

5 Id. at 15-16.

6 G.R. No. L-65228, February 18, 1985, 134 SCRA 466.

7 Heirs of Miguel Franco v. Court of Appeals, G.R. No. 123924, December 11, 2003, 418 SCRA 60, 67.
Among the exceptional circumstances that would compel the Supreme Court to review the findings of
fact of the lower courts is when the findings of fact are conflicting. See e.g., Sacay v. Sandiganbayan,
226 Phil. Rep. 496, 510 (1986).

8 Records, p. 154.

9
Evidence, Ricardo J. Francisco, Vol. VII, Part I, 1997 edition, p. 554, citing 20 Am. Jur. 468.
10 Del Mundo v. Court of Appeals , G.R. No. L-25788, April 30, 1980, 97 SCRA 373, 380.

11 Supra note 7, citing Noda v. Cruz-Arnaldo, G.R. No. L-57322, June 22, 1987, 151 SCRA 227.

12 Records, p. 199.

13 Id. at pp. 346-347.

14 TSN, March 10, 1993, pp.30-34.

15 Records, p. 167 to 181; Exhibits " N," "N-1" to " N-18".

16 TSN, April 21, 1993, pp. 12-13.

17Director of Lands v. Intermediate Appellate Court, G.R. No. 68946, May 22, 1992, 209 SCRA 214,
227.

18 350 Phil. 138 (1998).

19 Id. at 173.

20 Records, p. 318.

Francisco, Comments on the Rules of Court, Vol. VI, 1980 edition, p. 123, citing U.S . v. Solana, 33
21

Phil. 582 (1916) and Dayrit v. Gonzalez, 7 Phil. 182 (1906).

22 People v. Gecomo, 324 Phil. 297, 318 (1996); Tabuena v. Court of Appeals, 274 Phil. 51, 55 (1991).

23 Supra note 6.

24 TSN, February 24, 1993, pp. 9-11.

25 Id. at 11

26 Id. at 12.

27 Id. at 12-14.

28 Id. at 23.

29 TSN, March 10, 1993, pp. 10-11.

30 Id. at 13.

31 Id. at 29.

32 Id.

Asian Transmission Corporation v. Canlubang Sugar Estates, G.R. No. 142383, August 29, 2003, 410
33

SCRA 202, 223 citing Herpolsheimer v. Christopher, 111 N.W. 359 (1907).

34 Art. 2208 (2).

35 Art. 2208 (11).

 THIRD DIVISION

PHILIPPINE FREE PRESS, INC., G.R. No. 132864

Petitioner,
Present:

PANGANIBAN, J., Chairman

SANDOVAL-GUTIERREZ,
CORONA,
CARPIO-MORALES, and
- versus - GARCIA, JJ.

Promulgated:

October 24, 2005

COURT OF APPEALS (12th Division)

and LIWAYWAY PUBLISHING, INC.,

Respondents.

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

DECISION

GARCIA, J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court,
petitioner Philippine Free Press, Inc. seeks the reversal of the Decision[1] dated
February 25, 1998 of the Court of Appeals (CA) in CA-GR CV No. 52660, affirming,
with modification, an earlier decision of the Regional Trial Court at Makati, Branch
146, in an action for annulment of deeds of sale thereat instituted by petitioner
against the Presidential Commission for Good
Government (PCGG) and the herein private respondent, Liwayway Publishing, Inc.

As found by the appellate court in the decision under review, the facts are:

xxx [Petitioner] . . . is a domestic corporation engaged in the publication of Philippine Free

Press Magazine, one of the . . . widely circulated political magazines in the Philippines. Due
to its wide circulation, the publication of the Free Press magazine enabled [petitioner] to
attain considerable prestige prior to the declaration of Martial Law as well as to achieve a
high profit margin. . . .

Sometime in . . . 1963, [petitioner] purchased a parcel of land situated at No. 2249, Pasong
Tamo Street, Makati which had an area of 5,000 square meters as evidenced by . . . (TCT)
No. 109767 issued by the Register of Deeds of Makati (Exh. Z). Upon taking possession of
the subject land, [petitioner] constructed an office building thereon to house its various
machineries, equipment, office furniture and fixture. [Petitioner] thereafter made the subject
building its main office . . . .

During the 1965 presidential elections, [petitioner] supported the late President Diosdado
Macapagal against then Senate President Ferdinand Marcos. Upon the election of the late
President Ferdinand Marcos in 1965 and prior to the imposition of Martial law on September
21, 1972, [petitioner] printed numerous articles highly critical of the Marcos administration,
exposing the corruption and abuses of the regime. The [petitioner] likewise ran a series of
articles exposing the plan of the Marcoses to impose a dictatorship in the guise of Martial
Law . . . .

In the evening of September 20, 1972, soldiers surrounded the Free Press Building, forced
out its employees at gunpoint and padlocked the said establishment. The soldier in charge of
the military contingent then informed Teodoro Locsin, Jr., the son of Teodoro Locsin, Sr., the
President of [petitioner], that Martial Law had been declared and that they were instructed by
the late President Marcos to take over the building and to close the printing press. xxx.

On September 21, 1972 . . ., Teodoro Locsin, Sr. was arrested [and] . . . . was brought to
Camp Crame and was subsequently transferred to the maximum security bloc at Fort
Bonifacio.

Sometime in December, 1972, Locsin, Sr. was informed . . . that no charges were to be filed
against him and that he was to be provisionally released subject to the following conditions,
to wit: (1) he remained (sic) under city arrest; xxx (5) he was not to publish the Philippine
Free Press nor was he to do, say or write anything critical of the Marcos administration . . . .

Consequently, the publication of the Philippine Free Press ceased. The subject building
remained padlocked and under heavy military guard (TSB, 27 May 1993, pp. 51-52;
stipulated). The cessation of the publication of the ... magazine led to the financial ruin of
[petitioner] . . . . [Petitioners] situation was further aggravated when its employees demanded
the payment of separation pay as a result of the cessation of its operations. [Petitioners]
minority stockholders, furthermore, made demands that Locsin, Sr. buy out their shares. xxx.

On separate occasions in 1973, Locsin, Sr. was approached by the late Atty. Crispin Baizas
with offers from then President Marcos for the acquisition of the [petitioner]. However,
Locsin, Sr. refused the offer stating that [petitioner] was not for sale (TSN, 2 May 1988, pp.
8-9, 40; 27 May 1993, pp. 66-67).
A few months later, the late Secretary Guillermo De Vega approached Locsin, Sr. reiterating
Marcoss offer to purchase the name and the assets of the [petitioner].xxx

Sometime during the middle of 1973, Locsin, Sr. was contacted by Brig. Gen. Hans Menzi, the
former aide-de-camp of then President Marcos concerning the sale of the [petitioner]. Locsin, Sr.
requested that the meeting be held inside the [petitioner] Building and this was arranged by Menzi
(TSN, 27 May 1993, pp. 69-70). During the said meeting, Menzi once more reiterated Marcoss offer
to purchase both the name and the assets of [petitioner] adding that Marcos cannot be denied (TSN,
27 May 1993, p. 71). Locsin, Sr. refused but Menzi insisted that he had no choice but to sell. Locsin,
Sr. then made a counteroffer that he will sell the land, the building and all the machineries and
equipment therein but he will be allowed to keep the name of the [petitioner]. Menzi promised to
clear the matter with then President Marcos (TSN, 27 May 1993, p. 72). Menzi thereafter contacted
Locsin, Sr. and informed him that President Marcos was amenable to his counteroffer and is offering
the purchase price of Five Million Seven Hundred Fifty Thousand (P5, 750,000.00) Pesos for the land,
the building, the machineries, the office furnishing and the fixtures of the [petitioner] on a take-it-or-
leave-it basis (TSN, 2 May 1988, pp.42-43; 27 May 1993, p. 88).

On August 22, 1973, Menzi tendered to Locsin, Sr. a check for One Million (P1, 000,000.00) Pesos
downpayment for the sale, . . . Locsin, Sr. accepted the check, subject to the condition that he will
refund the same in case the sale will not push through. (Exh. 7).

On August 23, 1973, the Board of Directors of [petitioner] held a meeting and reluctantly passed a
resolution authorizing Locsin, Sr. to sell the assets of the [petitioner] to Menzi minus the name
Philippine Free Press (Exhs. A-1 and 1; TSN, 27 May 1993, pp. 73-76).

On October 23, 1973, the parties [petitioner, as vendor and private respondent, represented by
B/Gen. Menzi, as vendee] met . . . and executed two (2) notarized Deeds of Sale covering the land,
building and the machineries of the [petitioner]. Menzi paid the balance of the purchase price in the
amount of . . . (P4,750,000.00) Pesos (Exhs. A and (; B and 10;TSN, 27 May 1993, pp. 81-82; 3 June
1993, p. 89).

Locsin, Sr. thereafter used the proceeds of the sale to pay the separation pay of [petitioners]
employees, buy out the shares of the minority stockholders as well as to settle all its obligations.

On February 26, 1987, [petitioner] filed a complaint for Annulment of Sale against [respondent]
Liwayway and the PCGG before the Regional Trail Court of Makati, Branch 146 on the grounds of
vitiated consent and gross inadequacy of purchase price. On motion of defendant PCGG, the
complaint against it was dismissed on October 22, 1987. (Words in bracket and underscoring added)
In a decision dated October 31, 1995,[2] the trial court dismissed petitioners
complaint and granted private respondents counterclaim, to wit:

WHEREFORE, in view of all the foregoing premises, the herein complaint for annulment of
sales is hereby dismissed for lack of merit.

On [respondent] counterclaim, the court finds for [respondent] and against [petitioner] for the
recovery of attorneys fees already paid for at P1,945,395.98, plus a further P316,405.00
remaining due and payable.

SO ORDERED. (Words in bracket added)

In time, petitioner appealed to the Court of Appeals (CA) whereat its appellate
recourse was docketed as CA-G.R. C.V. No. 52660.

As stated at the outset hereof, the appellate court, in a decision dated February 25,
1998, affirmed with modification the appealed decision of the trial court, the
modification consisting of the deletion of the award of attorneys fees to private
respondent, thus:

WHEREFORE, with the sole modification that the award of attorneys fees in favor of
[respondent] be deleted, the Decision appealed from is hereby AFFIRMED in all respects.

SO ORDERED.

Hence, petitioners present recourse, urging the setting aside of the decision
under review which, to petitioner, decided questions of substance in a way not in
accord with law and applicable jurisprudence considering that the appellate court
gravely erred:
I

xxx IN ITS MISAPPLICATION OF THE DECISIONS OF THE HONORABLE COURT THAT RESULTED IN ITS
ERRONEOUS CONCLUSION THAT PETITIONER'S CAUSE OF ACTION HAD ALREADY PRESCRIBED.

II

xxx IN CONCLUDING THAT THE UNDISPUTED FACTS AND CIRCUMSTANCES PRECEDING THE
EXECUTION OF THE CONTRACTS OF SALE FOR THE PETITIONER'S PROPERTIES DID NOT ESTABLISH
THE FORCE, INTIMIDATION, DURESS AND UNDUE INFLUENCE WHICH VITIATED PETITIONER'S
CONSENT.
 A. xxx IN CONSIDERING AS HEARSAY THE TESTIMONIAL EVIDENCE WHICH CLEARLY ESTABLISHED
THE THREATS MADE UPON PETITIONER AND THAT RESPONDENT LIWAYWAY WILL BE USED
AS THE CORPORATE VEHICLE FOR THE FORCED ACQUISITION OF PETITIONER'S PROPERTIES.

B. xxx IN CONCLUDING THAT THE ACTS OF THEN PRESIDENT MARCOS DURING MARTIAL LAW
DID NOT CONSTITUTE THE FORCE, INTIMIDATION, DURESS AND UNDUE INFLUENCE WHICH
VITIATED PETITIONER'S CONSENT.

C. xxx IN RESOLVING THE INSTANT CASE ON THE BASIS OF MERE SURMISES AND SPECULATIONS
INSTEAD OF THE UNDISPUTED EVIDENCE ON RECORD.

III

xxx IN CONCLUDING THAT THE GROSSLY INADEQUATE PURCHASE PRICE FOR PETITIONER'S
PROPERTIES DOES NOT INDICATE THE VITIATION OF PETITIONER'S CONSENT TO THE CONTRACTS OF
SALE.

IV

xxx IN CONCLUDING THAT PETITIONER'S USE OF THE PROCEEDS OF THE SALE FOR ITS SURVIVAL
CONSTITUTE AN IMPLIED RATIFICATION [OF] THE CONTRACTS OF SALE.

xxx IN EXCLUDING PETITIONER'S EXHIBITS X-6 TO X-7 AND Y-3 (PROFFER) WHICH ARE ADMISSIBLE
EVIDENCE WHICH COMPETENTLY PROVE THAT THEN PRESIDENT MARCOS OWNED PRIVATE
RESPONDENT LIWAYWAY, WHICH WAS USED AS THE CORPORATE VEHICLE FOR THE ACQUISITION OF
PETITIONER'S PROPERTIES.

The petition lacks merit.

Petitioner starts off with its quest for the allowance of the instant recourse on the
submission that the martial law regime tolled the prescriptive period under Article
1391 of the Civil Code, which pertinently reads:

Article 391. The action for annulment shall be brought within four years.

This period shall begin:

In cases of intimidation, violence or undue influence, from the time the defect of the consent ceases.

xxx xxx xxx

It may be recalled that the separate deeds of sale[3] sought to be annulled under
petitioners basic complaint were both executed on October 23, 1973. Per the
appellate court, citing Development Bank of the Philippines [DBP] vs.
Pundogar[4], the 4-year prescriptive period for the annulment of the aforesaid deeds
ended in late 1977, doubtless suggesting that petitioners right to seek such
annulment accrued four (4) years earlier, a starting time-point corresponding, more
or less, to the date of the conveying deed, i.e., October 23, 1973. Petitioner
contends, however, that the 4-year prescriptive period could not have commenced
to run on October 23, 1973, martial law being then in full swing. Plodding on,
petitioner avers that the continuing threats on the life of Mr. Teodoro Locsin, Sr.
and his family and other menacing effects of martial law which should be considered
as force majeure - ceased only after the February 25, 1986 People Power uprising.
Petitioner instituted its complaint for annulment of contracts on February 26,
1987. The question that now comes to the fore is: Did the 4-year prescriptive period
start to run in late October 1973, as postulated in the decision subject of review, or
on February 25, 1986, as petitioner argues, on the theory that martial law has the
effects of a force majeure[5], which, in turn, works to suspend the running of the
prescriptive period for the main case filed with the trial court.

Petitioner presently faults the Court of Appeals for its misapplication of the doctrinal
rule laid down in DBP vs. Pundogar[6] where this Court, citing and quoting excerpts
from the ruling in Tan vs. Court of Appeals [7], as reiterated in National Development
Company vs. Court of Appeals, [8] wrote
 We can not accept the petitioners contention that the period during which authoritarian rule was in
force had interrupted prescription and that the same began to run only on February 25, 1986, when
the Aquino government took power. It is true that under Article 1154 [of the Civil Code] xxx
fortuitous events have the effect of tolling the period of prescription. However, we can not say, as a
universal rule, that the period from September 21, 1972 through February 25, 1986 involves a force
majeure. Plainly, we can not box in the "dictatorial" period within the term without distinction, and
without, by necessity, suspending all liabilities, however demandable, incurred during that period,
including perhaps those ordered by this Court to be paid. While this Court is cognizant of acts of the
last regime, especially political acts, that might have indeed precluded the enforcement of liability
against that regime and/or its minions, the Court is not inclined to make quite a sweeping
pronouncement, . . . . It is our opinion that claims should be taken on a case-to-case basis. This
selective rule is compelled, among others, by the fact that not all those imprisoned or detained by
the past dictatorship were true political oppositionists, or, for that matter, innocent of any crime or
wrongdoing. Indeed, not a few of them were manipulators and scoundrels. [Italization in the
original; Underscoring and words in bracket added]

According to petitioner, the appellate court misappreciated and thus misapplied the
correct thrust of the Tan case, as reiterated in DBP which, per petitioners own
formulation, is the following:[9]

The prevailing rule, therefore, is that on a case-to-case basis, the Martial Law regime may be treated
as force majeure that suspends the running of the applicable prescriptive period provided that it is
established that the party invoking the imposition of Martial Law as a force majeure are true
oppositionists during the Martial Law regime and that said party was so circumstanced that is was
impossible for said party to commence, continue or to even resist an action during the dictatorial
regime. (Emphasis and underscoring in the original)

We are not persuaded.

It strains credulity to believe that petitioner found it impossible to commence

and succeed in an annulment suit during the entire stretch of the dictatorial regime.
The Court can grant that Mr. Locsin, Sr. and petitioner were, in the context
of DBP and Tan, true oppositionists during the period of material law. Petitioner,
however, has failed to convincingly prove that Mr. Locsin, Sr., as its then President,
and/or its governing board, were so circumstanced that it was well-nigh impossible
for him/them to successfully institute an action during the martial law years.
Petitioner cannot plausibly feign ignorance of the fact that shortly after his arrest in
the evening of September 20, 1972, Mr. Locsin, Sr., together with several other
journalists[10], dared to file suits against powerful figures of the dictatorial regime
and veritably challenged the legality of the declaration of martial law. Docketed in
this Court as GR No. L-35538, the case, after its consolidation with eight (8) other
petitions against the martial law regime, is now memorialized in books of
jurisprudence and cited in legal publications and case studies as Aquino vs. Enrile.[11]

Incidentally, Mr. Locsin Sr., as gathered from the ponencia of then Chief Justice
Querube Makalintal in Aquino, was released from detention notwithstanding his
refusal to withdraw from his petition in said case. Judging from the actuations of Mr.
Locsin, Sr. during the onset of martial law regime and immediately thereafter, any
suggestion that intimidation or duress forcibly stayed his hands during the dark days
of martial law to seek judicial assistance must be rejected.[12]

Given the foregoing perspective, the Court is not prepared to disturb the
ensuing ruling of the appellate court on the effects of martial law on petitioners
right of action:

In their testimonies before the trial court, both Locsin, Sr. and Locsin, Jr. claimed that they had not
filed suit to recover the properties until 1987 as they could not expect justice to be done because
according to them, Marcos controlled every part of the government, including the courts, (TSN, 2
May 1988, pp. 23-24; 27 May 1993, p. 121). While that situation may have obtained during the early
years of the martial law administration, We could not agree with the proposition that it remained
consistently unchanged until 1986, a span of fourteen (14) years. The unfolding of subsequent
events would show that while dissent was momentarily stifled, it was not totally silenced. On the
contrary, it steadily simmered and smoldered beneath the political surface and culminated in that
groundswell of popular protest which swept the dictatorship from power.[13]

The judiciary too, as an institution, was no ivory tower so detached from the ever changing political
climate. While it was not totally impervious to the influence of the dictatorships political power, it
was not hamstrung as to render it inutile to perform its functions normally. To say that the Judiciary
was not able to render justice to the persons who sought redress before it . . . during the Martial Law
years is a sweeping and unwarranted generalization as well as an unfounded indictment. The
Judiciary, . . . did not lack in gallant jurists and magistrates who refused to be cowed into silence by
the Marcos administration. Be that as it may, the Locsins mistrust of the courts and of judicial
processes is no excuse for their non-observance of the prescriptive period set down by law.

Corollary to the presented issue of prescription of action for annulment of contract

voidable on account of defect of consent[14] is the question of whether or not duress,
intimidation or undue influence vitiated the petitioners consent to the subject
contracts of sale. Petitioner delves at length on the vitiation issue and, relative
thereto, ascribes the following errors to the appellate court: first, in considering as
hearsay the testimonial evidence that may prove the element of "threat" against
petitioner or Mr. Locsin, Sr., and the dictatorial regime's use of private respondent
as a corporate vehicle for forcibly acquiring petitioners properties; second, in
concluding that the acts of then President Marcos during the martial law years did
not have a consent-vitiating effect on petitioner; and third, in resolving the case on
the basis of mere surmises and speculations.

The evidence referred to as hearsay pertains mainly to the testimonies of Messrs.

Locsin, Sr. and Teodoro Locsin, Jr. (the Locsins, collectively), which, in gist,
established the following facts: 1) the widely circulated Free Press magazine, which,
prior to the declaration of Martial Law, took the strongest critical stand against the
Marcos administration, was closed down on the eve of such declaration, which
closure eventually drove petitioner to financial ruin; 2) upon Marcos orders, Mr.
Locsin, Sr. was arrested and detained for over 2 months without charges and,
together with his family, was threatened with execution; 3) Mr. Locsin, Sr. was
provisionally released on the condition that he refrains from reopening Free
Press and writing anything critical of the Marcos administration; and 4) Mr. Locsin,
Sr. and his family remained fearful of reprisals from Marcos until the 1986 EDSA
Revolution.

Per the Locsins, it was amidst the foregoing circumstances that petitioners
property in question was sold to private respondent, represented by Gen. Menzi,
who, before the sale, allegedly applied the squeeze on Mr. Locsin, Sr. thru the
medium of the Marcos cannot be denied and [you] have no choice but to sell line.

The appellate court, in rejecting petitioners above posture of vitiation of

consent, observed:

It was under the above-enumerated circumstances that the late Hans Menzi, allegedly acting on
behalf of the late President Marcos, made his offer to purchase the Free Press. It must be noted,
however, that the testimonies of Locsin, Sr. and Locsin, Jr. regarding Menzis alleged implied threat
that Marcos cannot be denied and that [respondent] was to be the corporate vehicle for Marcoss
takeover of the Free Press is hearsay as Menzi already passed away and is no longer in a position to
defend himself; the same can be said of the offers to purchase made by Atty. Crispin Baizas and
Secretary Guillermo de Vega who are also both dead. It is clear from the provisions of Section 36,
Rule 130 of the 1989 Revised Rules on Evidence that any evidence, . . . is hearsay if its probative
value is not based on the personal knowledge of the witness but on the knowledge of some other
person not on the witness stand. Consequently, hearsay evidence, whether objected to or not, has
no probative value unless the proponent can show that the evidence falls within the exceptions to
the hearsay evidence rule (Citations omitted)
The appellate courts disposition on the vitiation-of-consent angle and
the ratio therefor commends itself for concurrence.

Jurisprudence instructs that evidence of statement made or a testimony is

hearsay if offered against a party who has no opportunity to cross-examine the
witness. Hearsay evidence is excluded precisely because the party against whom it
is presented is deprived of or is bereft of opportunity to cross-examine the persons
to whom the statements or writings are attributed.[15] And there can be no quibbling
that because death has supervened, the late Gen Menzi, like the other purported
Marcos subalterns, Messrs. Baizas and De Vega, cannot cross-examine the Locsins
for the threatening statements allegedly made by them for the late President.
Like the Court of Appeals, we are not unmindful of the exception to the hearsay rule
provided in Section 38, Rule 130 of the Rules of Court, which reads:

SEC. 38. Declaration against interest. The declaration made by a person deceased or unable to
testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it
was made so far contrary to the declarant's own interest, that a reasonable man in his position
would not have made the declaration unless he believed it to be true, may be received in evidence
against himself or his successors-in-interest and against third persons.

However, in assessing the probative value of Gen. Menzis supposed declaration

against interest, i.e., that he was acting for the late President Marcos when he
purportedly coerced Mr. Locsin, Sr. to sell the Free Press property, we are loathed
to give it the evidentiary weight petitioner endeavors to impress upon us. For, the
Locsins can hardly be considered as disinterested witnesses. They are likely to gain
the most from the annulment of the subject contracts. Moreover, allegations of
duress or coercion should, like fraud, be viewed with utmost caution. They should
not be laid lightly at the door of men whose lips had been sealed by
death.[16] Francisco explains why:

[I]t has been said that of all evidence, the narration of a witness of his conversation with a dead
person is esteemed in justice the weakest. One reason for its unreliability is that the alleged
declarant can not recall to the witness the circumstances under which his statement were made. The
temptation and opportunity for fraud in such cases also operate against the testimony. Testimony to
statements of a deceased person, at least where proof of them will prejudice his estate, is regarded
as an unsafe foundation for judicial action except in so far as such evidence is borne out by what is
natural and probable under the circumstances taken in connection with actual known facts. And a
court should be very slow to act upon the statement of one of the parties to a supposed agreement
 after the death of the other party; such corroborative evidence should be adduced as to satisfy the
court of the truth of the story which is to benefit materially the person telling it. [17]

Excepting, petitioner insists that the testimonies of its witnesses the Locsins - are
not hearsay because:

In this regard, hearsay evidence has been defined as the evidence not of what the witness knows
himself but of what he has heard from others. xxx Thus, the mere fact that the other parties to the
conversations testified to by the witness are already deceased does [not] render such testimony
inadmissible for being hearsay. [18]

xxx xxx xxx

The testimonies of Teodoro Locsin, Sr. and Teodoro Locsin, Jr. that the late Atty. Baizas, Gen. Menzi
and Secretary de Vega stated that they were representing Marcos, that Marcos cannot be denied,
and the fact that Gen. Menzi stated that private respondent Liwayway was to be the corporate
vehicle for the then President Marcos' take-over of petitioner Free Press are not hearsay. Teodoro
Locsin, Sr. and Teodoro Locsin, Jr. were in fact testifying to matters of their own personal
knowledge because they were either parties to the said conversation or were present at the time
the said statements were made. [19]

Again, we disagree.

Even if petitioner succeeds in halving its testimonial evidence, one-half

purporting to quote the words of a live witness and the other half purporting to
quote what the live witness heard from one already dead, the other pertaining to
the dead shall nevertheless remain hearsay in character.

The all too familiar rule is that a witness can testify only to those facts which he
knows of his own knowledge. [20] There can be no quibbling that petitioners
witnesses cannot testify respecting what President Marcos said to Gen. Menzi about
the acquisition of petitioners newspaper, if any there be, precisely because none of
said witnesses ever had an opportunity to hear what the two talked about.
Neither may petitioner circumvent the hearsay rule by invoking the exception under
the declaration-against-interest rule. In context, the only declaration supposedly
made by Gen. Menzi which can conceivably be labeled as adverse to his interest
could be that he was acting in behalf of Marcos in offering to acquire the physical
assets of petitioner. Far from making a statement contrary to his own interest, a
declaration conveying the notion that the declarant possessed the authority to speak
and to act for the President of the Republic can hardly be considered as a
declaration against interest.
Petitioner next assails the Court of Appeals on its conclusion that Martial Law is
not per se a consent-vitiating phenomenon. Wrote the appellate court: [21]

In other words, the act of the ruling power, in this case the martial law administration, was
not an act of mere trespass but a trespass in law - not a perturbacion de mero hecho but
a pertubacion de derecho - justified as it is by an act of government in legitimate self-defense
(IFC Leasing & Acceptance Corporation v. Sarmiento Distributors Corporation, ,
citing Caltex (Phils.) v. Reyes, 84 Phil. 654 [1949]. Consequently, the act of the Philippine
Government in declaring martial law can not be considered as an act of intimidation of a third
person who did not take part in the contract (Article 1336, Civil Code). It is, therefore,
incumbent on [petitioner] to present clear and convincing evidence showing that the late
President Marcos, acting through the late Hans Menzi, abused his martial law powers by
forcing plaintiff-appellant to sell its assets. In view of the largely hearsay nature of appellants
evidence on this point, appellants cause must fall.

According to petitioner, the reasoning of the appellate court is "flawed" because:[22]

It is implicit from the foregoing reasoning of the Court of Appeals that it treated the forced closure
of the petitioner's printing press, the arrest and incarceration without charges of Teodoro Locsin, Sr.,
the threats that he will be shot and the threats that other members of his family will be arrested
as legal acts done by a dictator under the Martial Law regime. The same flawed reasoning led the
Court of Appeals to the erroneous conclusion that such acts do not constitute force, intimidation,
duress and undue influence that vitiated petitioner's consent to the Contracts of Sale.

The contention is a rehash of petitioners bid to impute on private respondent acts of

force and intimidation that were made to bear on petitioner or Mr. Locsin, Sr. during
the early years of martial law. It failed to take stock of a very plausible situation
depicted in the appellate courts decision which supports its case disposition on the
issue respecting vitiation. Wrote that court:

Even assuming that the late president Marcos is indeed the owner of [respondent], it does not
necessarily follow that he, acting through the late Hans Menzi, abused his power by resorting to
intimidation and undue influence to coerce the Locsins into selling the assets of Free Press to them
(sic).
 It is an equally plausible scenario that Menzi convinced the Locsins to sell the assets of the Free
Press without resorting to threats or moral coercion by simply pointing out to them the hard fact
that the Free Press was in dire financial straits after the declaration of Martial Law and was being
sued by its former employees, minority stockholders and creditors. Given such a state of affairs, the
Locsins had no choice but to sell their assets.[23]

Petitioner laments that the scenario depicted in the immediately preceding quotation
as a case of a court resorting to mere surmises and speculations, [24]oblivious
that petitioner itself can only offer, as counterpoint, also mere surmises and
speculations, such as its claim about Eugenio Lopez Sr. and Imelda R. Marcos
offering enticing amounts to buy Free Press.[25]

It bears stressing at this point that even after the imposition of martial law,
petitioner, represented by Mr. Locsin, Sr., appeared to have dared the ire of the
powers-that-be. He did not succumb to, but in fact spurned offers to buy, lock-
stock-and-barrel, the Free Press magazine, dispatching Marcos emissaries with what
amounts to a curt Free Press is not for sale. This reality argues against petitioners
thesis about vitiation of its contracting mind, and, to be sure, belying the notion that
Martial Law worked as a Sword of Damocles that reduced petitioner or Mr. Locsin,
Sr. into being a mere automaton. The following excerpt from the Court of Appeals
decision is self-explanatory: [26]

Noteworthy is the fact that although the threat of arrest hung over his head like the Sword of
Damocles, Locsin Sr. was still able to reject the offers of Atty. Baizas and Secretary De Vega, both of
whom were supposedly acting on behalf of the late President Marcos, without being subjected to
reprisals. In fact, the Locsins testified that the initial offer of Menzi was rejected even though it was
supposedly accompanied by the threat that Marcos cannot be denied. Locsin, Sr. was, moreover,
even able to secure a compromise that only the assets of the Free Press will be sold. It is, therefore,
quite possible that plaintiff-appellants financial condition, albeit caused by the declaration of Martial
Law, was a major factor in influencing Locsin, Sr. to accept Menzis offer. It is not farfetched to
consider that Locsin, Sr. would have eventually proceeded with the sale even in the absence of the
alleged intimidation and undue influence because of the absence of other buyers.

Petitioners third assigned error centers on the gross inadequacy of the purchase
price, referring to the amount of P5,775,000.00 private respondent paid for the
property in question. To petitioner, the amount thus paid does not even
approximate the actual market value of the assets and properties,[27] and is very
much less than the P18 Million offered by Eugenio Lopez.[28] Accordingly, petitioner
urges the striking down, as erroneous, the ruling of the Court of Appeals on
purchase price inadequacy, stating in this regard as follows: [29]

Furthermore, the Court of Appeals in determining the adequacy of the price for the properties and
assets of petitioner Free Press relied heavily on the claim that the audited financial statements for
the years 1971 and 1972 stated that the book value of the land is set at Two Hundred Thirty-Seven
Thousand Five Hundred Pesos (P237,500.00). However, the Court of Appeals' reliance on the book
value of said assets is clearly misplaced. It should be noted that the book value of fixed assets bears
very little correlation with the actual market value of an asset. (Emphasis and underscoring in the
original).

With the view we take of the matter, the book or actual market value of the
property at the time of sale is presently of little moment. For, petitioner is effectively
precluded, by force of the principle of estoppel ,[30] from cavalierly disregarding with
impunity its own books of account in which the property in question is assigned a
value less than what was paid therefor. And, in line with the rule on the quantum of
evidence required in civil cases, neither can we cavalierly brush aside private
respondents evidence, cited with approval by the appellate court, that tends to
prove that-[31]

xxx the net book value of the Properties was actually only P994,723.66 as appearing in Free Press's
Balance Sheet as of November 30, 1972 (marked as Exh. 13 and Exh. V), which was duly audited by
SyCip, Gorres, and Velayo, thus clearly showing that Free Press actually realized a hefty profit
of P4,755,276.34 from the sale to Liwayway.

Lest it be overlooked, gross inadequacy of the purchase price does not, as a matter
of civil law, per se affect a contract of sale. Article 1470 of the Civil Code says so. It
reads:
Article 1470. Gross inadequacy of price does not affect a contract of sale, except as it may indicate a
defect in the consent, or that the parties really intended a donation or some other act or contract.

Following the aforequoted codal provision, it behooves petitioner to first prove a

defect in the consent, failing which its case for annulment contract of sale on
ground gross inadequacy of price must fall. The categorical conclusion of the Court
of Appeals, confirmatory of that of the trial court, is that the price paid for the Free
Press office building, and other physical assets is not unreasonable to justify the
nullification of the sale. This factual determination, predicated as it were on offered
evidence, notably petitioners Balance Sheet as of November 30, 1972 (Exh. 13),
must be accorded great weight if not finality.[32]

In the light of the foregoing disquisition, the question of whether or not petitioners
undisputed utilization of the proceeds of the sale constitutes, within the purview of
Article 1393 of the Civil Code,[33] implied ratification of the contracts of sale need not
detain us long. Suffice it to state in this regard that the ruling of the Court of
Appeals on the matter is well-taken. Wrote the appellate court: [34]

In the case at bench, Free Presss own witnesses admitted that the proceeds of the 1973 sale were
used to settle the claims of its employees, redeem the shares of its stockholders and finance the
companys entry into money-market shareholdings and fishpond business activities (TSN, 2 May
1988, pp. 16, 42-45). It need not be overemphasized that by using the proceeds in this manner, Free
Press only too clearly confirmed the voluntaries of its consent and ratified the sale. Needless to
state, such ratification cleanses the assailed contract from any alleged defects from the moment it
was constituted (Art. 1396, Civil Code).

Petitioners posture that its use of the proceeds of the sale does not translate
to tacit ratification of what it viewed as voidable contracts of sale, such use being a
matter of [its financial] survival,[35] is untenable. As couched, Article 1393 of the Civil
Code is concerned only with the act which passes for ratification of contract, not the
reason which actuated the ratifying person to act the way he did. Ubi lex non
distinguit nec nos distinguere debemus. When the law does not distinguish, neither
should we. [36]

Finally, petitioner would fault the Court of Appeals for excluding Exhibits X-6 to X-7
and Y-3 (proffer). These excluded documents which were apparently found in the
presidential palace or turned over by the US Government to the PCGG, consist of,
among others, what appears to be private respondents Certificate of Stock for
24,502 shares in the name of Gen. Menzi, but endorsed in blank. The proffer was
evidently intended to show that then President Marcos owned private respondent,
Liwayway Publishing Inc. Said exhibits are of little relevance to the resolution of the
main issue tendered in this case. Whether or not the contracts of sale in question
are voidable is the issue, not the ownership of Liwayway Publishing, Inc.

WHEREFORE, the petition is DENIED, and the challenged decision of the

Court of Appeals AFFIRMED.
Costs against petitioner.

SO ORDERED.

CANCIO C. GARCIA

Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN

Associate Justice

Chairman

ANGELINA SANDOVAL-GUTIERREZ RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES

Associate Justice
 ATTESTATION

I attest that the conclusions in the above decision were reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

ARTEMIO V. PANGANIBAN

Associate Justice

Chairman, Third Division

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairman's
Attestation, it is hereby certified that the conclusions in the above decision were
reached in consultation before the case was assigned to the writer of the opinion of
the Court.

HILARIO G. DAVIDE, JR.

Chief Justice
[1]
Penned by then Associate Justice Consuelo Ynares-Santiago (now a member of this Court), with then Associate Justices
Bernardo LL. Salas (ret.) and Demetrio G. Demetria, concurring; Rollo, pp. 149-177.
[2]
Rollo, pp. 194-201.
[3]
Rollo, p. 178 et seq., and p. 182 et seq.
[4]
218 SCRA 118 [1993].
[5]
Art. 1154. The period during which the obligee was prevented by a fortuitous event from enforcing his right is not reckoned
against him.
[6]
See Note #4, supra.
[7]
195 SCRA 355 [1991].
[8]
211 SCRA 422, 435 [1992].
[9]
Petition, p. 32; Rollo, p- 40.
[10]
Joaquin P. Roces, Rolando Fadul, Rosalind Galang, Go Eng Guan, Maximo M. Soliven, Renato Constantino, and Luis R.
Mauricio.
[11]
59 SCRA 183, 184 [1974].
[12]
Tan v. Court of Appeals, See Note # 7, supra.
[13]
Court of Appeals Decision, Rollo, pp. 172-173.
[14]
Art. 1330. A contract where consent is given through mistake, violence, intimidation, undue influence or frauds is voidable.
[15]
Philippine Home Assurance Corp. vs. Court of Appeals, 257 SCRA 468 [1996], citing Baguio v. Court of Appeals, 226 SCRA 366
[1993].
[16]
Rodriguez v. Rodriguez, 20 SCRA 908 [1967]).
[17]
Francisco R. J., BASIC EVIDENCE, 1999 ed., p. 496; citing II Moore on Facts, 1014-1015.
[18]
Petition, p. 83; Rollo, p. 90.
[19]
Petition, p. 83; Rollo, p. 91.
[20]
Rules on Evidence, Rule 130, Section 36.
[21]
Court of Appeals Decision; Rollo, pp. 166-167.
[22]
Petition, p. 94; Rollo, p. 102.
[23]
Court of Appeals Decision; Rollo, pp. 167.
[24]
Petition, pp. 100-105; Rollo, pp. 108-113.
[25]
Petition, pp. 101; Rollo, p. 109.
[26]
Court of Appeals Decision; Rollo, pp. 168.
[27]
Petition, p. 109.
[28]
Ibid., p. 107.
[29]
Petition, p. 108; Rollo, p. 116.
[30]
Civil Code, Article 1431. Through estoppel an admission or representation is rendered conclusive upon the person making it,
and cannot be denied or disproved as against the person relying thereon.
[31]
Memorandum for Liwayway, p. 35; Rollo, p. 880.
[32]
Chan vs. Court of Appeals, 298 SCRA 713; Ibay vs. Court of Appeals, 212 SCRA 160 [1992).
[33]
Article 1393. Ratification may be effected expressly or tacitly. It is understood that there is a tacit ratification if, with
knowledge of the reason which renders the contract voidable and such reason having ceased, the person who has a
right to invoke it should execute an act which necessarily implies an intention to waive his right.

[34]
Court of Appeals Decision; Rollo, p. 174.
[35]
Memorandum for Free Press, p. 146; Rollo, p. 1041.
[36]
Tecson vs. COMELEC, 424 SCRA 277, 439 [2004], separate opinion of Justice Alicia Austria-Martinez.
 SECOND DIVISION
MILAGROS ILAO-QUIANAY G.R. No. 154087
and SERGIO ILAO, as Joint
Administrator of the Intes- Present:
tate Estate of Simplicio
Ilao, and AMBROSIA ILAO. PUNO, J.,
Petitioners, Chairman,
AUSTRIA-MARTINEZ,
CALLEJO, SR.,
TINGA, and
- versus - CHICO-NAZARIO, JJ.
Promulgated:
RODOLFO MAPILE,
Respondent.
October 25, 2005

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

DECISION

TINGA, J.:
This Petition for Review on Certiorari[1] assails the Decision[2] of the Court of Appeals in CA-G.R. CV 50923
which sustained the trial court decision in declaring that the property subject of this case rightfully belongs to
respondent herein.

The following facts are condensed from the decisions of the Court of Appeals and the trial court.

Subject of this case is a parcel of land situated in Sta. Cruz, Manila and covered by Transfer Certificate of Title
No. 48529 (TCT No. 48529) in the name of the deceased Simplicio Ilao (Ilao). In the course of the judicial settlement
of Ilaos estate, his heirs found out that the title of the subject property had an annotation of adverse claim filed by a
certain Juanito Ibarra (Ibarra). Respondent herein, Atty. Rodolfo Mapile (respondent), filed a motion to exclude the
property from the inventory on the ground that the same no longer formed part of Ilaos estate having been disposed
of during the latters lifetime in favor of Ibarra. Acting upon respondents allegation, the heirs of Ilao, through
petitioners herein, promptly filed on December 8, 1976 a civil case for Quieting of Title and Damages, docketed as
Civil Case No. 105865 of the Regional Trial Court (RTC) of Manila, Branch 37.

The Court of First Instance of Manila, Branch 12, in Special Proceedings No. 93674, denied respondents
motion and, in an order dated February 7, 1978, authorized the sale of the subject property to Virgilio Sevilla subject
to the outcome of Civil Case No. 105865.

Relevantly, it appears that in 1974, Ibarra filed a petition for the issuance of a new owners duplicate copy of the title
of the subject property, claiming that he was in possession of said owners duplicate but that he lost the same in a
fire that took place in Bo. Sta. Ignacia, Camiling, Tarlac on April 26, 1974. The case was docketed as LRC Cad. Rec. No.
271 of the RTC of Manila. This allegation was, however, uncovered by the trial court to be false when, upon the
courts subpoena, Ilaos heirs appeared and presented the certificate of title Ibarra claimed to have been lost.

On October 3, 1983, respondent filed Civil Case No. 83-20520 for Specific Performance and Declaration of Nullity of
Contract, claiming that the subject property had been sold by Ilao to Ibarra pursuant to a Deed of Absolute Sale
(deed of sale) dated February 7, 1972, and that Ibarra, in turn, sold the property to him.

Civil Case No. 105865 and Civil Case No. 83-20520 were consolidated. After trial, the court rendered judgment in
favor of respondent, finding that the deed of sale was genuine and ordering, among others, that petitioners herein
surrender the owners duplicate copy of TCT No. 48529 and all documents appurtenant thereto in their
possession.[3] The decision was primarily anchored on the trial courts finding that the conflicting testimonies of the
handwriting experts[4] presented by both parties left it no choice but to favor the notarized deed of sale and to rule
that the same is genuine.

Petitioners filed a motion for reconsideration, which respondent countered with an omnibus motion to
strike out the motion for reconsideration for being pro forma and to seek the issuance of a writ of execution. The
trial court denied petitioners motion for reconsideration, granted respondents omnibus motion, and ordered the
issuance of a writ of execution.[5]

The decision was appealed to the Court of Appeals. Meanwhile, the order denying the motion for
reconsideration became the subject of a petition for certiorari also with the appellate court. The petition for
certiorari, docketed as CA-G.R. SP. No. 38421, was denied because the trial court had already ordered the elevation
of the records of the case to the appellate court, and in view of respondents manifestation that he would not move
for execution pending appeal.

The errors assigned on appeal dwell on the twin findings that the deed of sale between Ilao and Ibarra was
genuine and that the subject property was validly transferred to respondent. As previously mentioned, the Court of
Appeals affirmed the decision of the trial court and denied petitioners motion for reconsideration.

Petitioners[6] herein argue that the appellate court erred in disregarding the testimonies of the expert
witnesses allegedly to the effect that Ilaos signature on the deed of sale was forged. While the two experts initially
disagreed in that whereas petitioners witness categorically declared that the signature on the deed of sale was a
forgery based on the specimen signatures, respondents witness expressed doubts whether the specimen signatures
were themselves genuine, the latter allegedly agreed to exclude the specimen signatures to which he expressed
reservation and came up with the same conclusion that the signature in the deed of sale was indeed forged.

Moreover, petitioners question the probative value given by the trial court and the Court of Appeals to the
notarized deed of sale. They stress that the trial court even went to the extent of admitting in evidence the
transcript of the testimony of the notary public who purportedly notarized the document taken in LRC Cad. Rec. No.
271 in which petitioners were not named parties, while the appellate court for its part sustained the lower courts
action.

They assail as hearsay the factual findings of the trial court on the circumstances surrounding the sale of the
property to Ibarra which were based only on respondents narration, without Ibarra actually testifying thereon. These
circumstances, i.e., that it was Ibarras father who paid for the property allegedly to induce Ibarra to marry a girl his
father had wanted for him; that instead of marrying the girl, Ibarra fled to Mindanao; and that he later returned and
was advised by a lawyer, who turned out to be an impostor, to file a petition claiming that the certificate of title had
been destroyed by fire, which petition was the subject of LRC Cad. Rec. No. 271, were adopted by the appellate court
as the factual backdrop of the case.

The trial court and the Court of Appeals also allegedly erred in certain matters crucial to the case, such as the
fact that Ibarra neither took possession of the subject property nor of the certificate of title covering it; that Ibarra
never paid the real estate taxes on the property as the tax declarations have remained in the name of Ilao; and that
no capital gains tax, documentary stamps tax and other transfer taxes were ever paid pursuant to the supposed
deed of sale. These circumstances are allegedly known to respondent who has never denied knowledge thereof.

Notably, these arguments are the very same ones raised before the Court of Appeals albeit petitioners
purposively rearranged the order in which they made their assignment of errors in this petition.

Respondent[7] avers at the outset that the instant petition should be denied because it raises questions of
fact not proper in a petition for review.

On the objection to the admission in evidence of the testimony of the notary public taken in another case
and as regards the hearsay nature of his testimony on the circumstances surrounding the sale of the property to
Ibarra, respondent cites the decision of the appellate court ruling that these testimonies may be admitted as
independently relevant evidence and as part of respondents narration.
 Respondent further claims that the disagreement of the expert witnesses on the matter of whether the
specimen signatures are themselves authentic is insurmountable such that both testimonies should be disregarded
as was done in this case.

Finally, he claims that he is a buyer in good faith because he bought the property after procuring a certified
true copy of the deed of sale from the clerk of court of the then Court of First Instance of Manila and ascertaining
from the transcript taken of the testimony of the notary public who notarized the document that Ibarras claim of
ownership is valid.

The question of whether Ilaos signature on the deed of sale is a forgery is a question of fact which requires
an appraisal and re-evaluation of the evidence presented by the parties. As a rule, however, such a procedure is
beyond the Courts dominion because factual findings of trial courts, especially when affirmed by the Court of
Appeals, as in this case, are binding on the Supreme Court. The review of such findings is not a function that this
Court normally undertakes.

Under the 1997 Rules of Civil Procedure, only questions of law may be raised in a petition for review before
this Court. However, this Rule is not absolute; it admits of exceptions, such as: (1) when the findings of a trial court
are grounded entirely on speculation, surmises or conjectures; (2) when a lower courts inference from its factual
findings is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion in the appreciation
of facts; (4) when the findings of the appellate court go beyond the issues of the case, run contrary to the admissions
of the parties to the case, or fail to notice certain relevant facts which, if properly considered, will justify a different
conclusion; (5) when there is a misappreciation of facts; (6) when the findings of fact are conclusions without
mention of the specific evidence on which they are based, are premised on the absence of evidence, or are
contradicted by evidence on record.[8]

Petitioners argue that the trial court and the appellate court failed to take into account the fact that the
handwriting expert presented by respondent as his witness, after agreeing to exclude the specimen signatures which
he doubted, finally agreed with the finding of petitioners own expert witness that Ilaos signature on the deed of sale
was forged. Allegedly, both courts misappreciated the evidence and consequently came up with the erroneous
conclusion affirming the validity of the deed of sale.

We find, however, that petitioners contention is not entirely accurate. The trial court and the Court of
Appeals did take into account the entirety of the testimonies of the handwriting experts and reckoned that neither
should be accorded probative value because the expert witnesses have conflicting opinions on the genuineness of
the signatures used as standards against which the alleged forged signature on the deed of sale would be measured.
The assailed Decision succinctly summarizes:

Both experts agree, as logic and commons sense demand, with one absolute proposition. A
conclusion that the specimen signatures and the questioned signature were not signed by the same
person is based on the assumption that all the exemplars were written by one and the same person.
Otherwise, the conclusion does not deserve a scant consideration.

Constantino testified he was sure that all the standard signatures W-5, W-11, W-13 and W-
14, included were written by one and the same person.

Cruz, however, disagreed. He doubted that the signatures marked as W-5, W-11, W-13 and
W-14 by the same author of the rest of the exemplars. To him, the specimen signatures consisted of
two sets signed by two different persons. Worse, he does not know which of the two sets of
specimen signatures is the authentic signature to serve as the standard. If on the exemplars alone,
there is already an unbridgeable divergence of opinion when there should be none, it is safe to
expect greater polarization, in fact, confusion to use Cruzs term, of conclusions with respect to the
questioned signature.
 With this irreconcilable stand, it is a superfluity to further discuss the appellants arguments
on the claim of forgery. Constantino and Cruz, sincere in their espousal of their respective opinion,
disparaged, discredited and neutralized each other completely that the assistance experts are
supposed to extend to courts is nowhere in sight. The appellants stratagem to FIRST DISREGARD the
doubtful signatures and THEN ADD additional specimens in order for Cruz to conclude that the
questioned signature and the exemplars were not written by one person amuses but does not
relieve the confusion. Constantino remains sure that the four signatures were signed by the author
of all the exemplars. The doubtful signatures cannot be removed without impeaching Constantino.
Neither could the latter be believed without making Cruz look ludicrous and unskilled. Experts are
presented to enlighted not confuse the courts and for this reason, We do not fault the lower court
for disregarding, in its exasperation, their testimony on record, no doubt, relying on the leeway
extended to all courts that they 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 (Salonga,
Philippine Law on Evidence, p. 507, emphasis supplied).[9]

Indeed, courts are not 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, and any other matters which serve to illuminate his
statements. The opinion of an expert should be considered by the court in view of all the facts and circumstances of
the case. The problem of the evaluation of expert 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.[10]

We find that the trial court and the Court of Appeals did not commit an error in their evaluation of the
testimonies of the handwriting experts. In fact, we quite agree that the conflicting testimonies should be completely
disregarded.

The validity of the deed of sale should, therefore, be recognized, the only opposition thereto being the
alleged forgery of Ilaos signature which, as discussed above, was not satisfactorily demonstrated. There is no doubt
that the deed of sale was duly acknowledged before a notary public. As a notarized document, it has in its favor the
presumption of regularity and it carries the evidentiary weight conferred upon it with respect to its due execution. It
is admissible in evidence without further proof of its authenticity and is entitled to full faith and credit upon its
face.[11]

In this connection, we have to say that petitioners objection to the admission in evidence of the testimony of
the notary public who supposedly notarized the deed of sale taken in another case in which petitioners were not
parties is persuasive. Such testimony does not qualify as an exception to the hearsay rule under Sec. 47, Rule 130 of
the Rules of Court, which provides:

Sec. 47. Testimony or deposition at a former proceeding.The testimony or deposition of a

witness deceased or unable to testify, given at a former case or proceeding, judicial or
administrative, involving the same parties and subject matter, may be given in evidence against the
adverse party who had the opportunity to cross-examine him.

None of the circumstances for the admission of the testimony given at a former proceeding obtains in this
case. Not only were petitioners not parties to the former proceeding and hence without opportunity to cross-
examine the notary public, there was also no proof that the notary public was already deceased or unable to testify.
Hence, the testimony should not have been accorded any probative weight.

The same cannot be said, however, of the testimony of respondent relevant to the circumstances
surrounding the execution of the deed of sale between Ilao and Ibarra. It should be noted that what was sought to
be admitted in evidence, and what was actually admitted in evidence, was the fact that the statements were made
by Ibarra, not necessarily that the matters stated were true. The utterances are in the nature of independently
relevant statements which may be admitted in evidence as such, but not necessarily to prove the truth thereof.[12]
 It has been said that where, regardless of the truth or falsity of a statement, the fact that it has been made is
relevant, the hearsay rule does not apply, and the statement may be shown. Evidence as to the making of such
statement is not secondary but primary, for the statement itself may constitute a fact in issue, or be circumstantially
relevant as to the existence of such a fact.[13] On this basis, the statements attributed to Ibarra regarding the
circumstances surrounding the execution of the deed of sale related to the court by respondent are admissible if
only to establish the fact that such statements were made and the tenor thereof.

As regards petitioners contention that at no time did Ibarra exercise ownership over the subject property as
neither the property nor the certificate of title covering it were delivered to Ibarra, these circumstances do not
necessarily warrant a conclusion that the property was not validly transferred to Ibarra.

It has been held that ownership of the thing sold is acquired only from the delivery thereof, either actual or
constructive. Article 1498 of the Civil Code provides that when the sale is made through a public instrument, as in
this case, the execution thereof shall be equivalent to the delivery of the thing which is the object of the contract, if
from the deed the contrary does not appear or cannot clearly be inferred. The execution of the public instrument,
even without actual delivery of the thing, transfers the ownership from the vendor to the vendee, who may
thereafter exercise the rights of an owner over the same.[14]

In this case, a public instrument was executed through which constructive delivery of the subject property
was made transferring ownership thereof to Ibarra. As the new owner, Ibarra acted perfectly within his rights when
he sold the property to respondent.

IN VIEW OF THE FOREGOING, the petition is hereby DENIED. Costs against petitioners.

SO ORDERED.

DANTE O. TINGA Associate Justice

[1]
Rollo, pp. 10-36.

[2]
Id. at 37-54; Penned by Associate Justice Bernardo P. Abesamis and concurred in by Associate Justices
Eubulo G. Verzola and Perlita J. Tria Tirona.

[3]
RTC Records, pp. 81-101; The dispositive portion of the decision states:

WHEREFORE, judgment is hereby rendered declaring the deed of sale executed in favor of
the Sevillas null and void and the Deed of Sale executed by Simplicio Ilao in favor of Juanito Ibarra
and the deed of Sale executed by Juanito Ibarra in favor of the plaintiff to be valid and legally
binding.

This court orders the defendants as follows:

1. To surrender the owners duplicate copy of TCT No. 48529 and all other documents
appurtenant thereto;
2. To cause the peaceable and smooth turn over of the subject property to the plaintiff;
3. To remit to the plaintiff all rentals of the premises at the rate of P6,500.00 per month
or P78,000.00 a year commencing from October 1976 up to the time the premises are actually
surrendered to the plaintiff.
Defendant Milagros Ilao-Quianay is hereby ordered to refund to the defendant heirs of Virgilio
Sevilla the sum of P225,000.00 representing the purchase price they paid to the former for the
property subject of this suit without interest.

No pronouncement as to costs.

SO ORDERED.
 [4]
Petitioners presented Eleodoro Constantino, a fingerprint and handwriting expert from the National
Bureau of Investigation, while respondent presented, as rebuttal witness, Francisco Cruz, Jr., Chief of the Questioned
Documents Division of the PNP Crime Laboratory Services.

[5]
RTC Records, pp. 160-164; Order dated May 29, 1995.
[6]
Rollo, pp. 245-272; Memorandum for the Petitioners dated March 17, 2003.
[7]
Id. at 212-244; Memorandum for the Respondent dated March 10, 2003.
[8]
Philippine Rabbit Bus Lines, Inc. v. Macalinao, G.R. No. 141856, February 11, 2005, 451 SCRA 63.
[9]
Rollo, pp. 45-46.
[10]
Salomon v. Intermediate Appellate Court, G.R. No. 70263, May 14, 1990, 185 SCRA 352.
[11]
Dela Cruz v. Dela Cruz, G.R. No. 146222, January 15, 2004, 419 SCRA 648.
[12]
Bon v. People, G.R. No. 152160, January 13, 2004, 419 SCRA 101.
[13]
D.M. Consunji, Inc. v. Court of Appeals, G.R. No. 137873, April 20, 2001, 357 SCRA 249.
[14]
Balatbat v. Court of Appeals, G.R. No. 109410, August 28, 1996, 261 SCRA 128.
 FIRST DIVISION
G.R. No. 209264, July 05, 2016
DAMASO T. AMBRAY AND CEFERINO T. AMBRAY, JR.,* Petitioners, v. SYLVIA A. TSOUROUS, CARMENCITA
AMBRAY-LAUREL, HEDY AMBRAY-AZORES, VIVIEN AMBRAY-YATCO, NANCY AMBRAY-ESCUDERO, MARISTELA
AMBRAY-ILAGAN, ELIZABETH AMBRAY-SORIANO, MA. LUISA FE AMBRAY-ARCILLA, AND CRISTINA AMBRAY-
LABIT, Respondents.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the Decision2 dated April 25, 2013 and the Resolution3 dated
September 24, 2013 rendered by the Court of Appeals (CA) in CA-G.R. CV No. 95606, affirming the Decision4 dated
June 11, 2010 of the Regional Trial Court of San Pablo City, Branch 32 (RTC) in Civil Case No. SP-5831(01).
The Facts

The subject matter of the present controversy is a parcel of land described as Lot 2-C of subdivision plan Psd-04-
009554, covered by Transfer Certificate of Title (TCT) No. T-413825 of the Register of Deeds of San Pablo City (Lot 2-
C) in the name of petitioners Damaso T. Ambray (Damaso) and Ceferino T. Ambray, Jr. (Ceferino, Jr.; collectively,
petitioners).

Petitioners and respondents Sylvia A. Tsourous,6 Carmencita Ambray-Laurel, Hedy Ambray-Azores, Vivien Ambray-
Yatco, Nancy Ambray-Escudero, Maristela Ambray-Ilagan (Maristela), Elizabeth Ambray-Soriano, Ma. Fe Luisa
Ambray-Arcilla (Ma. Fe Luisa),7 and Cristina Ambray-Labit are siblings. With the exception of Sylvia,8 they are the
children of the late Ceferino Ambray (Ceferino, Sr.) and Estela Trias (Estela), who passed away on February 5, 1987
and August 15, 2002, respectively.

During their lifetime, Ceferino, Sr. and Estela owned several properties, one of which was a parcel of land located in
San Pablo City, Laguna denominated as Lot 2 of subdivision plan Pcs-12441, with an area of 4,147 square meters,
more or less, covered by TCT No. T-112599 of the Register of Deeds of San Pablo City (Lot 2). On December 28, 1977,
Ceferino, Sr. mortgaged Lot 2 with Manila Bank for the amount of P180,000.00. The mortgage was discharged on
September 16, 1984.10chanrobleslaw

Prior to the discharge of the mortgage or sometime in August 1984, Lot 2 was subdivided into three (3) lots: Lot 2-A,
Lot 2-B, and the subject property, Lot 2-C, resulting in the cancellation of TCT No. T-11259. Lot 2-C was registered in
Ceferino, Sr.'s name in accordance with his letter11 dated August 29, 1984 requesting the Register of Deeds of San
Pablo City to register Lot 2-C in his name. Thus, TCT No. T-2274912 was issued covering the said parcel under the
name of Ceferino, Sr., married to Estela.13chanrobleslaw

In June 1996, Maristela discovered that TCT No. T-22749 covering Lot 2-C had been cancelled and in its stead, TCT
No. T-41382 was issued in the name of petitioners. It appears that by virtue of a notarized Deed of Absolute
Sale14 (Deed of Sale) dated January 16, 1978, Ceferino, Sr., with the consent of Estela, allegedly sold "a portion of lot
2 of the consolidation subd. plan (LRC) Pcs-12441"15to petitioners for a consideration of P150,000.00. The Deed of
Sale was registered with the Register of Deeds of San Pablo City only on February 5, 1996.16chanrobleslaw

This prompted respondents to file a criminal case for falsification of public document against petitioners, entitled
"People of the Philippines v. Damaso T. Ambray and Ceferino T. Ambray" and docketed as Criminal Case No. 39153
(falsification case) before the Municipal Trial Court in Cities (MTCC) of San Pablo City. In a Decision17 dated October
30, 2000, the MTCC acquitted petitioners of the charge for failure of the prosecution to prove their guilt beyond
reasonable doubt.

Thereafter, respondents filed the instant complaint18 for annulment of title, reconveyance, and damages against
petitioners and Estela (defendants), docketed as Civil Case No. SP-5831(01), alleging that TCT No. T-41382 and the
Deed of Sale were null and void because the signatures of Ceferino, Sr. and Estela thereon were forgeries.

In a motion to dismiss,19 defendants claimed that the issue on the authenticity of the signatures of Ceferino, Sr. and
Estela on the Deed of Sale had already been passed upon in the falsification case where petitioners were eventually
acquitted; hence, the matter was res judicata. In an Order20 dated June 6, 2002, the RTC granted the motion and
dismissed the case on said ground.
On appeal,21 however, the CA reversed the said disposition in a Decision22 dated September 29, 2005 in CA-G.R. CV
No. 75507, finding that res judicata does not apply. Thus, it remanded the case to the RTC for further proceedings.

Before the RTC, petitioners filed their answer23 and disclosed the death of their co-defendant and mother, Estela,
who passed away on August 15, 2002.24 By way of defense, they averred, inter alia, that respondents were aware of
the conveyance of Lot 2-C to them through the Deed of Sale. They also claimed that respondents' action has
prescribed, and maintained that it was barred by prior judgment and res judicata.25cralawredchanrobleslaw

Subsequently, citing an Affidavit26 dated February 18, 2008 executed by Ma. Fe Luisa, the rest of the respondents
moved27 that she be dropped as a plaintiff, which the RTC granted.28 Thereafter, she was ordered29 impleaded as a
party-defendant in respondents' supplemental complaint. Later, she adopted30 petitioners' answer with
counterclaim in response thereto.
The RTC Ruling

In a Decision31 dated June 11, 2010, the RTC nullified the Deed of Sale as well as TCT No. T-41382 in the name of
petitioners and rendered judgment in favor of respondents as follows:ChanRoblesVirtualawlibrary
a. Declaring Lot 2-C, Psd-04-009554, covered by Transfer Certificate of Title No. T-41382, as common property of the
Heirs of Ceferino Ambray, Sr. and Estela Trias, to be divided equally among the heirs;

b. Declaring as null and void the Deed of Absolute Sale dated January 16, 1978, purportedly executed between
Ceferino Ambray and Estela Trias, as vendors, and Damaso T. Ambray and Ceferino Ambray, Jr., as vendees, of the
portion of Lot 2, Pcs-12441, covered by Transfer Certificate of Title No. T-11259;

c. Declaring as null and void Transfer Certificate of Title No. T- 41382 in the name of Damaso T. Ambray, married to
Mary Ann Loyola, and Ceferino T. Ambray, Jr.;

d. Directing the defendants Damaso T. Ambray and Ceferino T. Ambray, Jr. to reconvey Lot 2-C, Psd-04-009554
covered by Transfer Certificate of Title No. T-41382 to the co-ownership of the Heirs of Ceferino Ambray, Sr. and
Estela Trias, for distribution in equal shares among the said heirs; and cralawlawlibrary

e. Directing the Register of Deeds of San Pablo City, to cancel Transfer Certificate of Title No. T-41382 in the name of
Damaso T. Ambray and Ceferino Ambray, Sr., and cause the issuance of a new Transfer Certificate of Title, in the
name of the Heirs of Ceferino Ambray, Sr. and Estela Trias.
The RTC found that respondents were able to prove, by a preponderance of evidence, that the Deed of Sale
executed by Ceferino, Sr. conveying Lot 2-C in favor of petitioners was spurious and of dubious origin.32 It held that
at the time of its execution in 1978, Ceferino, Sr. could not have sold a specific portion of Lot 2 to petitioners,
considering that it was subdivided only in 1984. Moreover, after the subdivision of Lot 2 in 1984, Ceferino, Sr.
requested the Register of Deeds of San Pablo City to register Lot 2-C in his name, which he would not have done had
he already sold Lot 2-C to petitioners.33chanrobleslaw

Furthermore, Ceferino, Sr. leased Lot 2-C to MB Finance Corporation from 1986 to 1989 in his capacity as the owner
of the subject property. Subsequent thereto, as administrator of Ceferino, Sr.'s properties upon the latter's death,
Damaso executed a contract renewing the lease of Lot 2-C to MB Finance Corporation. The RTC opined that the
foregoing facts militate against petitioners' purported ownership of Lot 2-C pursuant to the Deed of
Sale.34chanrobleslaw

Finally, when confronted with the belated registration of the Deed of Sale in 1996, petitioners could only offer the
excuse that their mother, Estela, kept the copy thereof until she became sickly and finally gave the same to Damaso.
The RTC declared the same to be a mere afterthought.35chanrobleslaw

With respect to the issue of forgery of the signatures of Ceferino, Sr. and Estela on the subject Deed of Sale, the RTC
took note of the CA's opinion in CA-G.R. CV No. 75507 that the MTCC, in the falsification case, made no categorical
finding as to the existence of falsification. Instead, the MTCC merely concluded that the prosecution failed to
establish petitioners' participation in the alleged falsification.36chanrobleslaw

Petitioners and respondents separately appealed37 to the CA. Petitioners imputed error upon the RTC in declaring
null and void the subject Deed of Sale and TCT No. T-41382,38 while respondents questioned the RTC's refusal to
grant damages and attorney's fees in their favor.39chanrobleslaw
The CA Ruling

In a Decision40 dated April 25, 2013, the CA affirmed the RTC Decision and found that respondents were able to
sufficiently discharge the required burden of proof that the subject Deed of Sale is spurious.

The CA also denied the award of moral damages for lack of factual basis. Consequently, without moral damages, it
found that no exemplary damages may be given.41 Finally, the CA held that the award of attorney's fees was not
warranted under the circumstances of the case, the same being an exception and not the general
rule.42chanrobleslaw

Both petitioners43 and respondents44 moved for reconsideration of the CA's Decision, which were denied in a
Resolution45 dated September 24, 2014; hence, this petition.
The Issue Before the Court

The sole issue for the Court's resolution is whether or not the CA erred in affirming the RTC's nullification of the
Deed of Sale dated January 16, 1978 and TCT No. T-41382 covering Lot 2-C in the name of petitioners.
The Court's Ruling

The petition is meritorious.

At the outset, it should be pointed out that, as a general rule, a re-examination of factual findings cannot be done by
the Court acting on a petition for review on certiorari because it is not a trier of facts and only reviews questions of
law.46 This rule, however, admits of certain exceptions, namely: (1) when the findings are grounded entirely on
speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3)
when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the
findings of facts are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the
case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are
contrary to the trial court; (8) when the findings 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 petitioner's main and reply briefs are not
disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain relevant
facts not disputed by the parties, which, if properly considered, would justify a different conclusion.47 Finding a
confluence of certain exceptions in this case, the general rule that only legal issues may be raised in a petition for
review on certiorari under Rule 45 of the Rules of Court does not apply, and the Court retains the authority to pass
upon the evidence presented and draw conclusions therefrom.48chanrobleslaw

At the core of the present controversy is the validity of the Deed of Sale, the execution of which purportedly
conveyed Lot 2-C in favor of petitioners. To gauge the veracity thereof, it is imperative to pass upon the genuineness
of the signatures of the seller, Ceferino, Sr., and his wife, Estela, who gave her consent to the sale, as appearing
thereon, which respondents, in the present complaint, assert to be forgeries.

As a rule, forgery cannot be presumed and must be proved by clear, positive and convincing evidence, and the
burden of proof lies on the party alleging forgery. One who alleges forgery has the burden to establish his case by a
preponderance of evidence, or evidence which is of greater weight or more convincing than that which is offered in
opposition to it. The fact of forgery can only be established by a comparison between the alleged forged signature
and the authentic and genuine signature of the person whose signature is theorized to have been
forged.49chanrobleslaw

Under Rule 132, Section 22 of the Rules of Court, the genuineness of handwriting may be proved in the following
manner: (1) by any witness who believes it to be the handwriting of such person because he has seen the person
write; or he has seen writing purporting to be his upon which the witness has acted or been charged; (2) by a
comparison, made by the witness or the court, with writings admitted or treated as genuine by the party, against
whom the evidence is offered, or proved to be genuine to the satisfaction of the judge.50 Corollary thereto,
jurisprudence states that the presumption of validity and regularity prevails over allegations of forgery and fraud. As
against direct evidence consisting of the testimony of a witness who was physically present at the signing of the
contract and who had personal knowledge thereof, the testimony of an expert witness constitutes indirect or
circumstantial evidence at best.51chanrobleslaw

In this case, the only direct evidence presented by respondents to prove their allegation of forgery is Questioned
Documents Report No. 266-39752 dated March 24, 1997 issued by National Bureau of Investigation (NBI) Document
Examiner II Antonio R. Magbojos (Magbojos), stating that the signatures of Ceferino, Sr. and Estela on the Deed of
Sale, when compared to standard sample signatures, are not written by one and the same person.

In refutation, petitioners offered in evidence, inter alia, the testimony of their mother, Estela, in the falsification case
where petitioners were previously acquitted. In the course thereof, she identified53the signatures on the Deed of
Sale as hers and Ceferino, Sr.'s, which was fully corroborated54 by Atty. Zosimo Tanalega (Atty. Tanalega), the notary
public who notarized the subject Deed of Sale and was present at the time the Ambray spouses affixed their
signatures thereon.

Between the Questioned Documents Report presented by respondents and the testimony given by Estela in the
falsification case in support of petitioners' defense, the Court finds greater evidentiary weight in favor of the latter.
Hence, respondent's complaint for annulment of title, reconveyance, and damages in Civil Case No. SP-5831(01)
should be dismissed.

While the principle of res judicata in the concept of conclusiveness of judgment, as espoused by petitioners,55 is of
doubtful application in this case - considering that the MTCC, in the falsification case, failed to categorically
pronounce that the Deed of Sale was not falsified and merely concluded that petitioners had no participation in any
alleged falsification - the Court nonetheless observes that petitioners, through the testimony of Estela thereat, were
able to establish the genuineness and due execution of the subject Deed of Sale which effectively conveyed title over
Lot 2-C to them. Estela's testimony constitutes direct evidence of the authenticity of the signatures on the Deed of
Sale, having personal knowledge thereof, which undeniably prevails over the written findings of a purported
handwriting expert that can only be considered indirect or circumstantial evidence.

Notably, the admissibility of Estela's former testimony in the present case finds basis in Section 47, Rule 130 of the
Rules on Evidence or the "rule on former testimony" which provides:ChanRoblesVirtualawlibrary
Section 47. Testimony or deposition at a former proceeding. - The testimony or deposition of a witness deceased or
unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and
subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him.
Case law holds that for the said rule to apply, the following requisites must be satisfied: (a) the witness is dead or
unable to testify; (b) his testimony or deposition was given in a former case or proceeding, judicial or administrative,
between the same parties or those representing the same interests; (c) the former case involved the same subject as
that in the present case, although on different causes of action; (d) the issue testified to by the witness in the former
trial is the same issue involved in the present case and (e) the adverse party had an opportunity to cross-examine the
witness in the former case.56 The reasons for the admissibility of testimony taken at a former trial or proceeding are
the necessity for the testimony and its trustworthiness. However, before the former testimony can be introduced in
evidence, the proponent must first lay the proper predicate therefor, i.e., the party must establish the basis for the
admission of testimony in the realm of admissible evidence.57chanrobleslaw

Records show that Estela died during the pendency of these proceedings before the RTC or on August 15, 2002. Her
death transpired before the presentation of the parties' evidence could ensue. However, she was able to testify on
direct and cross-examination in the falsification case and affirmed that the alleged forged signatures appearing on
the Deed of Sale were, indeed, hers and her deceased husband, Ceferino, Sr.'s. The parties in the falsification case
involved respondents and petitioners herein, and the subject matter therein and in this case are one and the
same, i.e., the genuineness and authenticity of the signatures of Ceferino, Sr. and Estela.

Clearly, the former testimony of Estela in the falsification case, being admissible in evidence in these proceedings,
deserves significant consideration. She gave positive testimony that it was Ceferino, Sr. himself who signed the Deed
of Sale that conveyed Lot 2-C to petitioners. She likewise verified her signature thereon. By virtue of these
declarations, she confirmed the genuineness and authenticity of the questioned signatures. Thus, it follows that the
Deed of Sale itself is valid and duly executed, contrary to the finding of the RTC, as affirmed by the CA, that it was of
spurious nature.
Further lending credence to the validity of the Deed of Sale is the well-settled principle that a duly notarized contract
enjoys the prima facie presumption of authenticity and due execution as well as the full faith and credence attached
to a public instrument. To overturn this legal presumption, evidence must be clear, convincing, and more than
merely preponderant to establish that there was forgery that gave rise to a spurious contract.58chanrobleslaw

Hence, for the above-state reasons, whatever inferences the RTC had observed tending to defeat the existence of a
valid sale in favor of petitioners are rendered inconsequential.

In particular, the RTC noted, and found it puzzling, that the Deed of Sale did not specifically mention the exact area
that was being sold to petitioners, disposing only of "a portion of lot 2" without specifying the metes and bounds
thereof. As such, the RTC concluded that Ceferino, Sr. could not have sold a specific portion of Lot 2 to petitioners,
having been subdivided only in 1984. However, Article 1463 of the Civil Code expressly states that "[t]he sole owner
of a thing may sell an undivided interest therein." As Ceferino, Sr. was the sole owner of the original Lot 2 from
whence came Lot 2-C, he is therefore allowed by law to convey or sell an unspecified portion thereof. Hence, the
disposition of Lot 2-C to petitioners, a portion of Lot 2 yet to be subdivided in 1978, was therefore valid.

That Ceferino, Sr. requested the registration of the title of Lot 2-C in his name in 1984, while the property was
supposed to have already been sold to petitioners in 1978, was likewise fully explained during trial. Damaso
clarified59 that their parents were apprehensive that he and Ceferino might mortgage or squander the property
while they were still alive. Moreover, despite knowledge of the sale, they did not demand for its immediate
registration because during their father's lifetime, they never questioned his decisions. This further explains why,
despite the disposition in petitioners' favor, it was Ceferino, Sr. himself who leased Lot 2-C to third parties, which
Damaso renewed in his father's name after the latter's death. The delay in the transfer of the title over Lot 2-C to
petitioners was also occasioned by the fact that Estela kept the Deed of Sale in her custody and gave it to petitioners
only later on, by reason of her poor health.60 Be that as it may, and to reiterate, the delay in the registration of the
sale in favor of petitioners neither affects nor invalidates the same, in light of the authenticity of the Deed of Sale
itself.

In fine, the CA and the RTC both erred in finding that the Deed of Sale was of spurious origin. The authenticity and
due execution of the Deed of Sale must be upheld against the assumptions made by the RTC in its Decision.
Accordingly, TCT No. T-41382 covering Lot 2-C in the name of petitioners remain valid.

WHEREFORE, the petition is GRANTED. The assailed April 25, 2013 Decision and the September 24, 2013 Resolution
of the Court of Appeals in CA-G.R. CV No. 95606 are hereby REVERSED and SET ASIDE. The instant complaint for
annulment of title, reconveyance, and damages is DISMISSED.

SO ORDERED.chanRoblesvirtualLawlibrary

Sereno, C.J., on official leave.

Leonardo-De Castro,*** (Acting Chairperson), Bersamin, and Caguioa, JJ., concur.
Endnotes:

*
Estela T. Ambray had already died on August 15, 2002. See rollo p. 9.

***
Per Special Order No. 2358 dated June 28, 2016.

1
Rollo, pp. 7-29.

2
Id. at 32-40. Penned by Associate Justice Amelita G. Tolentino with Associate Justices Ramon R. Garcia and Danton
Q. Bueser concurring.

3
Id. at 42-43. Penned by Associate Justice Amelita G. Tolentino with Associate Justices Ramon R. Garcia and Manuel
M. Barrios concurring.

4
Id. at 44-67. Penned by Judge Agripino G. Morga.

5
Folder of Exhibits, p. 6, including dorsal portion thereof.
6
Sylvia A. Tsourous died during the pendency of the case before the RTC and was substituted by her heirs, namely:
Kristina Tsourous-Reyes, Mark Tsourous, Keith Tsourous, and Steven Tsourous. See records, Vol. 1, pp. 156-159 and
163-164.

7
Also referred to in the records as "Ma. Luisa Fe" During the proceedings before the RTC, she withdrew as plaintiff,
and the complaint was amended to implead her as co-defendant of Damaso and Ceferino, Jr. Id. at 181-186.

8
See id. at 4.

9
Folder of Exhibits, pp. 2-3.

10
Rollo, p. 34.

11
Folder of Exhibits, p. 4.

12
Folder of Exhibits, p. 5, including dorsal portion thereof.

13
Rollo, p. 34.

14
Id. at 79-80.

15
Id. at 79.

16
Id. at 34-35.

17
Id. at 81-86. Penned by Judge Iluminado C. Monzon.

18
Records, Vol. I, pp. 3-10.

19
Id. at 47-53.

20
Id. at 99-102. Penned by Judge Zorayda Herradura-Salcedo.

21
See Notice of Appeal dated June 19, 2002; id. at 103.

22
Id. at 105-117. Penned by Associate Justice Mariflor P. Punzalan Castillo with Associate Justices Elvi John S.
Asuncion and Mariano C. Del Castillo (now a member of this Court).

23
Id. at 123-128.

24
See Order dated January 30, 2007; id. at 145-146.

25
cralawred Id. at 124.

26
Id. at 184-185.

27
Id. at 181-186.

28
See Order dated April 28, 2008; id. at 201-203.

29
Id. at 263-265.

30
Id. at 287.

31
Rollo, pp. 44-67.
32
Id. at 66.

33
Id. at 61.

34
Id. at 61-62.

35
Id. at 62.

36
Id. at 63-64.

37
CA rollo, pp. 82-106 and 136-152.

38
Id. at 139.

39
Id. at 87.

40
Rollo, pp. 32-40.

41
Id. at 38-39.

42
Id. at 39.

43
CA rollo, pp. 236-243.

44
Id. at 246-255.

45
Rollo, pp. 42-43.

46
See Maersk-Filipinas Crewing Inc. v. Avestruz, G.R. No. 207010, February 18, 2015, 751 SCRA 161, 171, citing Jao v.
BCC Products Sales, Inc.,686 Phil. 36, 41 (2012).

47
New City Builders, Inc. v. NLRC, 499 Phil. 207, 212-213 (2005), citing Insular Life Assurance Company, Ltd. v. CA, G.R.
No. 126850, April 28, 2004, 428 SCRA 79, 86.

48
Maersk-Filipinas Crewing Inc.,v. Avestruz, supra note 46, at 172.

49
Gepulle-Garbo v. Garabato, G.R. No. 200013, January 14, 2015, 746 SCRA 189, 198-199.

50
Section 22. How genuineness of handwriting proved. - The handwriting of a person may be proved by any witness
who believes it to be the handwriting of such person because he has seen the person write, or has seen writing
purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the
handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the
witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is
offered, or proved to be genuine to the satisfaction of the judge.

51
Bautista v. CA, 479 Phil. 787, 792-793 (2004), citing Vda. de Bernardo v. Restauro, 452 Phil. 745, 751-752 (2003).

52
Folder of Exhibits, pp. 9-10.

53
See Transcript of Stenographic Notes (TSN) dated September 10, 1998; rollo, pp 107-108.

54
Id. at 89-91.

55
Id. at 19-21.

56
Samalio v. CA, 494 Phil. 456, 463 (2005).
57
See Republic v. Sandiganbayan, 678 Phil. 358, 414 (2011).

58
Bautista v. CA, supra note 51. See also Bernardo v. Ramos, 433 Phil. 8 (2002); and Manzano v. Perez, Sr., 414 Phil.
728 (2001).

59
TSN, August 3, 2009, pp. 14-15.

60
Id. at 19-21.