Republic of the Philippines

Supreme Court
Manila
EN BANC

ARTURO M. DE CASTRO, G. R. No. 191002

Petitioner,

- versus -

JUDICIAL AND BAR COUNCIL

(JBC) and PRESIDENT GLORIA
MACAPAGAL ARROYO,
Respondents.
x-----------------------x

Present:

PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.

Promulgated:
March 17, 2010
x-----------------------------------------------------------------------------------------x

DECISION

BERSAMIN, J.:

The compulsory retirement of Chief Justice Reynato S. Puno by May 17,

2010 occurs just days after the coming presidential elections on May 10, 2010. Even
before the event actually happens, it is giving rise to many legal dilemmas. May the
incumbent President appoint his successor, considering that Section 15, Article VII
(Executive Department) of the Constitution prohibits the President or Acting
President from making appointments within two months immediately before the next
presidential elections and up to the end of his term, except temporary appointments
to executive positions when continued vacancies therein will prejudice public
service or endanger public safety? What is the relevance of Section 4 (1), Article
VIII (Judicial Department) of the Constitution, which provides that any vacancy in
the Supreme Court shall be filled within 90 days from the occurrence thereof, to the
matter of the appointment of his successor? May the Judicial and Bar Council (JBC)
resume the process of screening the candidates nominated or being considered to
succeed Chief Justice Puno, and submit the list of nominees to the incumbent
President even during the period of the prohibition under Section 15, Article VII?
Does mandamus lie to compel the submission of the shortlist of nominees by the
JBC?

Precs of the Consolidated Cases

Petitioners Arturo M. De Castro and John G. Peralta respectively commenced

G.R. No. 191002[1] and G.R. No. 191149[2] as special civil actions
for certiorari and mandamus, praying that the JBC be compelled to submit to the
incumbent President the list of at least three nominees for the position of the next
Chief Justice.

In G.R. No. 191032,[3] Jaime N. Soriano, via his petition for prohibition,
proposes to prevent the JBC from conducting its search, selection and nomination
proceedings for the position of Chief Justice.

In G.R. No. 191057, a special civil action for mandamus,[4] the Philippine
Constitution Association (PHILCONSA) wants the JBC to submit its list of
nominees for the position of Chief Justice to be vacated by Chief Justice Puno upon
his retirement on May 17, 2010, because the incumbent President is not covered by
the prohibition that applies only to appointments in the Executive Department.

In Administrative Matter No. 10-2-5-SC,[5] petitioner Estelito M. Mendoza, a former

Solicitor General, seeks a ruling from the Court for the guidance of the JBC on
whether Section 15, Article VII applies to appointments to the Judiciary.

In G.R. No. 191342,[6] which the Court consolidated on March 9, 2010 with the
petitions earlier filed, petitioners Amador Z. Tolentino, Jr. and Roland B. Inting,
Integrated Bar of the Philippines (IBP) Governors for Southern Luzon and Eastern
Visayas, respectively, want to enjoin and restrain the JBC from submitting a list of
nominees for the position of Chief Justice to the President for appointment during
the period provided for in Section 15, Article VII.

All the petitions now before the Court pose as the principal legal question whether
the incumbent President can appoint the successor of Chief Justice Puno upon his
retirement. That question is undoubtedly impressed with transcendental importance
to the Nation, because the appointment of the Chief Justice is any Presidents most
important appointment.

A precedent frequently cited is In Re Appointments Dated March 30, 1998 of

Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional
Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan City,
respectively(Valenzuela),[7] by which the Court held that Section 15, Article VII
prohibited the exercise by the President of the power to appoint to judicial positions
during the period therein fixed.

In G.R. No. 191002, De Castro submits that the conflicting opinions on the
issue expressed by legal luminaries one side holds that the incumbent President is
prohibited from making appointments within two months immediately before the
coming presidential elections and until the end of her term of office as President on
June 30, 2010, while the other insists that the prohibition applies only to
appointments to executive positions that may influence the election and, anyway,
paramount national interest justifies the appointment of a Chief Justice during the
election ban has impelled the JBC to defer the decision to whom to send its list of at
least three nominees, whether to the incumbent President or to her successor.[8] He
opines that the JBC is thereby arrogating unto itself the judicial function that is not
conferred upon it by the Constitution, which has limited it to the task of
recommending appointees to the Judiciary, but has not empowered it to finally
resolve constitutional questions, which is the power vested only in the Supreme
Court under the Constitution. As such, he contends that the JBC acted with grave
abuse of discretion in deferring the submission of the list of nominees to the
President; and that a final and definitive resolution of the constitutional questions
raised above would diffuse (sic) the tension in the legal community that would go a
long way to keep and maintain stability in the judiciary and the political system.[9]

In G.R. No. 191032, Soriano offers the view that the JBC committed a grave
abuse of discretion amounting to lack or excess of its jurisdiction when it resolved
unanimously on January 18, 2010 to open the search, nomination, and selection
process for the position of Chief Justice to succeed Chief Justice Puno, because the
appointing authority for the position of Chief Justice is the Supreme Court itself, the
Presidents authority being limited to the appointment of the Members of the
Supreme Court. Hence, the JBC should not intervene in the process, unless a
nominee is not yet a Member of the Supreme Court.[10]

For its part, PHILCONSA observes in its petition in G.R. No. 191057 that
unorthodox and exceptional circumstances spawned by the discordant
interpretations, due perhaps to a perfunctory understanding, of Sec. 15, Art. VII in
relation to Secs. 4(1), 8(5) and 9, Art. VIII of the Constitution have bred a frenzied
inflammatory legal debate on the constitutional provisions mentioned that has
divided the bench and the bar and the general public as well, because of its
dimensional impact to the nation and the people, thereby fashioning transcendental
questions or issues affecting the JBCs proper exercise of its principal function of
recommending appointees to the Judiciary by submitting only to the President (not
to the next President) a list of at least three nominees prepared by the Judicial and
Bar Council for every vacancy from which the members of the Supreme Court and
judges of the lower courts may be appointed.[11] PHILCONSA further believes and
submits that now is the time to revisit and review Valenzuela, the strange and exotic
Decision of the Court en banc.[12]
 Peralta states in his petition in G.R. No. 191149 that mandamus can compel
the JBC to immediately transmit to the President, within a reasonable time, its
nomination list for the position of chief justice upon the mandatory retirement of
Chief Justice Reynato S. Puno, in compliance with its mandated duty under the
Constitution in the event that the Court resolves that the President can appoint a
Chief Justice even during the election ban under Section 15, Article VII of the
Constitution.[13]

The petitioners in G.R. No. 191342 insist that there is an actual controversy,
considering that the JBC has initiated the process of receiving applications for the
position of Chief Justice and has in fact begun the evaluation process for the
applications to the position, and is perilously near completing the nomination
process and coming up with a list of nominees for submission to the President,
entering into the period of the ban on midnight appointments on March 10, 2010,
which only highlights the pressing and compelling need for a writ of prohibition to
enjoin such alleged ministerial function of submitting the list, especially if it will be
cone within the period of the ban on midnight appointments.[14]
Antecedents

These cases trace their genesis to the controversy that has arisen from the
forthcoming compulsory retirement of Chief Justice Puno on May 17, 2010, or seven
days after the presidential election. Under Section 4(1), in relation to Section 9,
Article VIII, that vacancy shall be filled within ninety days from the occurrence
thereof from a list of at least three nominees prepared by the Judicial and Bar Council
for every vacancy.

On December 22, 2009, Congressman Matias V. Defensor, an ex

officio member of the JBC, addressed a letter to the JBC, requesting that the process
for nominations to the office of the Chief Justice be commenced immediately.

In its January 18, 2010 meeting en banc, therefore, the JBC passed a
resolution,[15] which reads:

The JBC, in its en banc meeting of January 18, 2010, unanimously

agreed to start the process of filling up the position of Chief Justice to be
vacated on May 17, 2010 upon the retirement of the incumbent Chief
Justice Honorable Reynato S. Puno.

It will publish the opening of the position for applications or

recommendations; deliberate on the list of candidates; publish the names
of candidates; accept comments on or opposition to the applications;
conduct public interviews of candidates; and prepare the shortlist of
candidates.

As to the time to submit this shortlist to the proper appointing

authority, in the light of the Constitution, existing laws and jurisprudence,
the JBC welcomes and will consider all views on the matter.

18 January 2010.
 (sgd.)
MA. LUISA D. VILLARAMA
Clerk of Court &
Ex-Officio Secretary
Judicial and Bar Council

As a result, the JBC opened the position of Chief Justice for application or
recommendation, and published for that purpose its announcement dated January
20, 2010,[16] viz:

The Judicial and Bar Council (JBC) announces the opening for
application or recommendation, of the position of CHIEF JUSTICE OF
THE SUPREME COURT, which will be vacated on 17 May 2010 upon
the retirement of the incumbent Chief Justice, HON. REYNATO S.
PUNO.

Applications or recommendations for this position must be submitted

not later than 4 February 2010 (Thursday) to the JBC Secretariat xxx:
The announcement was published on January 20, 2010 in the Philippine
Daily Inquirer and The Philippine Star.[17]

Conformably with its existing practice, the JBC automatically considered for the
position of Chief Justice the five most senior of the Associate Justices of the Court,
namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C. Corona;
Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J. Velasco,
Jr.; and Associate Justice Antonio Eduardo B. Nachura. However, the last two
declined their nomination through letters dated January 18, 2010 and January 25,
2010, respectively.[18]

Others either applied or were nominated. Victor Fernandez, the retired Deputy
Ombudsman for Luzon, applied, but later formally withdrew his name from
consideration through his letter dated February 8, 2010. Candidates who accepted
their nominations without conditions were Associate Justice Renato C. Corona;
Associate Justice Teresita J. Leonardo-De Castro; Associate Justice Arturo D. Brion;
and Associate Justice Edilberto G. Sandoval (Sandiganbayan). Candidates who
accepted their nominations with conditions were Associate Justice Antonio T.
Carpio and Associate Justice Conchita Carpio Morales.[19] Declining their
nominations were Atty. Henry Villarica (via telephone conversation with the
Executive Officer of the JBC on February 5, 2010) and Atty. Gregorio M. Batiller,
Jr. (via telephone conversation with the Executive Officer of the JBC on February
8, 2010).[20]

The JBC excluded from consideration former RTC Judge Florentino Floro (for
failure to meet the standards set by the JBC rules); and Special Prosecutor Dennis
Villa-Ignacio of the Office of the Ombudsman (due to cases pending in the Office
of the Ombudsman).[21]
In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of
announcing the names of the following candidates to invite the public to file their
sworn complaint, written report, or opposition, if any, not later than February 22,
2010, to wit: Associate Justice Carpio, Associate Justice Corona, Associate Justice
Carpio Morales, Associate Justice Leonardo-De Castro, Associate Justice Brion, and
Associate Justice Sandoval. The announcement came out in the Philippine Daily
Inquirerand The Philippine Star issues of February 13, 2010.[22]

Issues

Although it has already begun the process for the filling of the position of
Chief Justice Puno in accordance with its rules, the JBC is not yet decided on when
to submit to the President its list of nominees for the position due to the controversy
now before us being yet unresolved. In the meanwhile, time is marching in quick
step towards May 17, 2010 when the vacancy occurs upon the retirement of Chief
Justice Puno.

The actions of the JBC have sparked a vigorous debate not only among legal
luminaries, but also among non-legal quarters, and brought out highly disparate
opinions on whether the incumbent President can appoint the next Chief Justice or
not. Petitioner Mendoza notes that in Valenzuela, which involved the appointments
of two judges of the Regional Trial Court, the Court addressed this issue now before
us as an administrative matter to avoid any possible polemics concerning the matter,
but he opines that the polemics leading to Valenzuela would be miniscule [sic]
compared to the polemics that have now erupted in regard to the current controversy,
and that unless put to a halt, and this may only be achieved by a ruling from the
Court, the integrity of the process and the credibility of whoever is appointed to the
position of Chief Justice, may irreparably be impaired.[23]

Accordingly, we reframe the issues as submitted by each petitioner in the order of

the chronological filing of their petitions.

G.R. No. 191002

a. Does the JBC have the power and authority to resolve the
constitutional question of whether the incumbent President can
appoint a Chief Justice during the election ban period?

b. Does the incumbent President have the power and authority to

appoint during the election ban the successor of Chief Justice Puno
when he vacates the position of Chief Justice on his retirement
on May 17, 2010?

G.R. No. 191032

a. Is the power to appoint the Chief Justice vested in the Supreme
Court en banc?

G.R. No. 191057

a. Is the constitutional prohibition against appointment under Section

15, Article VII of the Constitution applicable only to positions in the
Executive Department?

b. Assuming that the prohibition under Section 15, Article VII of the
Constitution also applies to members of the Judiciary, may such
appointments be excepted because they are impressed with public
interest or are demanded by the exigencies of public service, thereby
justifying these appointments during the period of prohibition?

c. Does the JBC have the authority to decide whether or not to include
and submit the names of nominees who manifested interest to be
nominated for the position of Chief Justice on the understanding that
his/her nomination will be submitted to the next President in view
of the prohibition against presidential appointments from March 11,
2010 until June 30, 2010?

A. M. No. 10-2-5-SC

a. Does Section 15, Article VII of the Constitution apply to

appointments to positions in the Judiciary under Section 9, Article
VIII of the Constitution?

b. May President Gloria Macapagal-Arroyo make appointments to the

Judiciary after March 10, 2010, including that for the position of
Chief Justice after Chief Justice Puno retires on May 17, 2010?

G.R. No. 191149

a. Does the JBC have the discretion to withhold the submission of the
short list to President Gloria Macapagal-Arroyo?

G.R. No. 191342

a. Does the JBC have the authority to submit the list of nominees to
the incumbent President without committing a grave violation of the
Constitution and jurisprudence prohibiting the incumbent President
from making midnightappointments two months immediately
preceding the next presidential elections until the end of her term?

b. Is any act performed by the JBC, including the vetting of the

candidates for the position of Chief Justice, constitutionally invalid
in view of the JBCs illegal composition allowing each member from
the Senate and the House of Representatives to have one vote each?
 On February 16, 2010, the Court directed the JBC and the Office of the
Solicitor General (OSG) to comment on the consolidated petitions, except that filed
in G.R. No. 191342.

On February 26, 2010, the JBC submitted its comment, reporting therein that
the next stage of the process for the selection of the nominees for the position of
Chief Justice would be the public interview of the candidates and the preparation of
the short list of candidates, including the interview of the constitutional experts, as
may be needed.[24] It stated:[25]

Likewise, the JBC has yet to take a position on when to submit the
shortlist to the proper appointing authority, in light of Section 4
(1), Article VIII of the Constitution, which provides that vacancy
in the Supreme Court shall be filled within ninety (90) days from
the occurrence thereof, Section 15, Article VII of the Constitution
concerning the ban on Presidential appointments two (2) months
immediately before the next presidential elections and up to the
end of his term and Section 261 (g), Article XXII of the Omnibus
Election Code of the Philippines.

12. Since the Honorable Supreme Court is the final interpreter of the
Constitution, the JBC will be guided by its decision in these
consolidated Petitions and Administrative Matter.

On February 26, 2010, the OSG also submitted its comment, essentially
stating that the incumbent President can appoint the successor of Chief Justice Puno
upon his retirement by May 17, 2010.

The OSG insists that: (a) a writ of prohibition cannot issue to prevent the JBC
from performing its principal function under the Constitution to recommend
appointees in the Judiciary; (b) the JBCs function to recommend is a continuing
process, which does not begin with each vacancy or end with each nomination,
because the goal is to submit the list of nominees to Malacaang on the very day the
vacancy arises;[26] the JBC was thus acting within its jurisdiction when it
commenced and set in motion the process of selecting the nominees to be submitted
to the President for the position of Chief Justice to be vacated by Chief Justice
Puno;[27] (c) petitioner Sorianos theory that it is the Supreme Court, not the President,
who has the power to appoint the Chief Justice, is incorrect, and proceeds from his
misinterpretation of the phrase members of the Supreme Court found in Section 9,
Article VIII of the Constitution as referring only to the Associate Justices, to the
exclusion of the Chief Justice; [28] (d) a writ of mandamus can issue to compel the
JBC to submit the list of nominees to the President, considering that its duty to
prepare the list of at least three nominees is unqualified, and the submission of the
list is a ministerial act that the JBC is mandated to perform under the Constitution;
as such, the JBC, the nature of whose principal function is executive, is not vested
with the power to resolve who has the authority to appoint the next Chief Justice
and, therefore, has no discretion to withhold the list from the President; [29] and (e) a
writ of mandamus cannot issue to compel the JBC to include or exclude particular
candidates as nominees, considering that there is no imperative duty on its part to
include in or exclude from the list particular individuals, but, on the contrary, the
JBCs determination of who it nominates to the President is an exercise of a
discretionary duty.[30]

The OSG contends that the incumbent President may appoint the next Chief
Justice, because the prohibition under Section 15, Article VII of the Constitution
does not apply to appointments in the Supreme Court. It argues that any vacancy in
the Supreme Court must be filled within 90 days from its occurrence, pursuant to
Section 4(1), Article VIII of the Constitution; [31] that in their deliberations on the
mandatory period for the appointment of Supreme Court Justices, the framers neither
mentioned nor referred to the ban against midnight appointments, or its effects on
such period, or vice versa;[32] that had the framers intended the prohibition to apply
to Supreme Court appointments, they could have easily expressly stated so in the
Constitution, which explains why the prohibition found in Article VII (Executive
Department) was not written in Article VIII (Judicial Department); and that the
framers also incorporated in Article VIII ample restrictions or limitations on the
Presidents power to appoint members of the Supreme Court to ensure its
independence from political vicissitudes and its insulation from political
pressures,[33] such as stringent qualifications for the positions, the establishment of
the JBC, the specified period within which the President shall appoint a Supreme
Court Justice.

The OSG posits that although Valenzuela involved the appointment of RTC
Judges, the situation now refers to the appointment of the next Chief Justice to which
the prohibition does not apply; that, at any rate, Valenzuela even recognized that
there might be the imperative need for an appointment during the period of the ban,
like when the membership of the Supreme Court should be so reduced that it will
have no quorum, or should the voting on a particular important question requiring
expeditious resolution be divided;[34] and that Valenzuela also recognized that the
filling of vacancies in the Judiciary is undoubtedly in the public interest, most
especially if there is any compelling reason to justify the making of the appointments
during the period of the prohibition.[35]

Lastly, the OSG urges that there are now undeniably compelling reasons for
the incumbent President to appoint the next Chief Justice, to wit: (a) a deluge of
cases involving sensitive political issues is quite expected;[36] (b) the Court acts as
the Presidential Electoral Tribunal (PET), which, sitting en banc, is the sole judge
of all contests relating to the election, returns, and qualifications of the President and
Vice President and, as such, has the power to correct manifest errors on the statement
of votes (SOV) and certificates of canvass (COC);[37] (c) if history has shown that
during ordinary times the Chief Justice was appointed immediately upon the
occurrence of the vacancy, from the time of the effectivity of the Constitution, there
is now even more reason to appoint the next Chief Justice immediately upon the
retirement of Chief Justice Puno;[38] and (d) should the next Chief Justice come from
among the incumbent Associate Justices of the Supreme Court, thereby causing a
vacancy, it also becomes incumbent upon the JBC to start the selection process for
the filling up of the vacancy in accordance with the constitutional mandate.[39]
 On March 9, 2010, the Court admitted the following comments/oppositions-
in-intervention, to wit:

(a) The opposition-in-intervention dated February 22, 2010 of Atty.

Peter Irving Corvera (Corvera);[40]

(b) The opposition-in-intervention dated February 22, 2010 of Atty.

Christian Robert S. Lim (Lim);

(c) The opposition-in-intervention dated February 23, 2010 of Atty.

Alfonso V. Tan, Jr. (Tan);

(d) The comment/opposition-in-intervention dated March 1, 2010 of

the National Union of Peoples Lawyers (NUPL);

(e) The opposition-in-intervention dated February 25, 2010 of Atty.

Marlou B. Ubano (Ubano);

(f) The opposition-in-intervention dated February 25, 2010 of

Integrated Bar of the Philippines-Davao del Sur Chapter and its
Immediate Past President, Atty. Israelito P. Torreon (IBP- Davao
del Sur);

(g) The opposition-in-intervention dated February 26, 2010 of Atty.

Mitchell John L. Boiser (Boiser);

(h)The consolidated comment/opposition-in-intervention dated

February 26, 2010 of BAYAN Chairman Dr. Carolina P. Araullo;
BAYAN Secretary General Renato M. Reyes, Jr.; Confederation for
Unity, Recognition and Advancement of Government Employees
(COURAGE) Chairman Ferdinand Gaite; Kalipunan ng Damayang
Mahihirap (KADAMAY) Secretary General Gloria Arellano;
Alyansa ng Nagkakaisang Kabataan ng Samayanan Para sa
Kaunlaran (ANAKBAYAN) Chairman Ken Leonard Ramos; Tayo
ang Pag-asa Convenor Alvin Peters; League of Filipino Students
(LFS) Chairman James Mark Terry Lacuanan Ridon; National
Union of Students of the Philippines (NUSP) Chairman Einstein
Recedes, College Editors Guild of the Philippines (CEGP)
Chairman Vijae Alquisola; and Student Christian Movement of the
Philippines (SCMP) Chairman Ma. Cristina Angela Guevarra
(BAYAN et al.);

(i) The opposition-in-intervention dated March 3, 2010 of Walden F.

Bello and Loretta Ann P. Rosales (Bello et al.); and

(j) The consolidated comment/opposition-in-intervention dated March

4, 2010 of the Women Trial Lawyers Organization of the
Philippines (WTLOP), represented by Atty. Yolanda Quisumbing-
Javellana; Atty. Belleza Alojado Demaisip; Atty. Teresita
 Gandionco-Oledan; Atty. Ma. Verena Kasilag-Villanueva; Atty.
Marilyn Sta. Romana; Atty. Leonila de Jesus; and Atty. Guinevere
de Leon (WTLOP).

Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao del Sur, and NUPL
take the position that De Castros petition was bereft of any basis, because under
Section 15, Article VII, the outgoing President is constitutionally banned from
making any appointments from March 10, 2010 until June 30, 2010, including the
appointment of the successor of Chief Justice Puno. Hence, mandamus does not lie
to compel the JBC to submit the list of nominees to the outgoing President if the
constitutional prohibition is already in effect. Tan adds that the prohibition against
midnight appointments was applied by the Court to the appointments to the Judiciary
made by then President Ramos, with the Court holding that the duty of the President
to fill the vacancies within 90 days from occurrence of the vacancies (for the
Supreme Court) or from the submission of the list (for all other courts) was not an
excuse to violate the constitutional prohibition.

Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et
al. oppose the insistence that Valenzuela recognizes the possibility that the President
may appoint the next Chief Justice if exigent circumstances warrant the appointment,
because that recognition is obiter dictum; and aver that the absence of a Chief Justice
or even an Associate Justice does not cause epic damage or absolute disruption or
paralysis in the operations of the Judiciary. They insist that even without the
successor of Chief Justice Puno being appointed by the incumbent President, the
Court is allowed to sit and adjudge en banc or in divisions of three, five or seven
members at its discretion; that a full membership of the Court is not necessary; that
petitioner De Castros fears are unfounded and baseless, being based on a mere
possibility, the occurrence of which is entirely unsure; that it is not in the national
interest to have a Chief Justice whose appointment is unconstitutional and, therefore,
void; and that such a situation will create a crisis in the judicial system and will
worsen an already vulnerable political situation.

ice is imperative for the stability of the judicial system and the political situation in
the country when the election-related questions reach the Court as false, because there
is an existing law on filling the void brought about by a vacancy in the office of Chief
Justice; that the law is Section 12 of the Judiciary Act of 1948, which has not been
repealed by Batas Pambansa Blg. 129 or any other law; that a temporary or
an acting Chief Justice is not anathema to judicial independence; that the designation
of an acting Chief Justice is not only provided for by law, but is also dictated by
practical necessity; that the practice was intended to be enshrined in the 1987
Constitution, but the Commissioners decided not to write it in the Constitution on
account of the settled practice; that the practice was followed under the 1987
Constitution, when, in 1992, at the end of the term of Chief Justice Marcelo B.
Fernan, Associate Justice Andres Narvasa assumed the position as Acting Chief
Justice prior to his official appointment as Chief Justice; that said filling up of a
vacancy in the office of the Chief Justice was acknowledged and even used by
analogy in the case of the vacancy of the Chairman of the Commission on Elections,
per Brillantes v. Yorac, 192 SCRA 358; and that the history of the Supreme Court has
shown that this rule of succession has been repeatedly observed and has become a part
of its tradition.

Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that

the Omnibus Election Code penalizes as an election offense the act of any
government official who appoints, promotes, or gives any increase in salary or
remuneration or privilege to any government official or employee during the period
of 45 days before a regular election; that the provision covers all appointing heads,
officials, and officers of a government office, agency or instrumentality, including
the President; that for the incumbent President to appoint the next Chief Justice upon
the retirement of Chief Justice Puno, or during the period of the ban under
the Omnibus Election Code, constitutes an election offense; that even an
appointment of the next Chief Justice prior to the election ban is fundamentally
invalid and without effect because there can be no appointment until a vacancy
occurs; and that the vacancy for the position can occur only by May 17, 2010.

Intervenor Boiser adds that De Castros prayer to compel the submission of

nominees by the JBC to the incumbent President is off-tangent because the position
of Chief Justice is still not vacant; that to speak of a list, much more a submission of
such list, before a vacancy occurs is glaringly premature; that the proposed advance
appointment by the incumbent President of the next Chief Justice will be
unconstitutional; and that no list of nominees can be submitted by the JBC if there
is no vacancy.

All the intervenors-oppositors submit that Section 15, Article VII makes no
distinction between the kinds of appointments made by the President; and that the
Court, in Valenzuela, ruled that the appointments by the President of the two judges
during the prohibition period were void.

Intervenor WTLOP posits that Section 15, Article VII of the 1987
Constitution does not apply only to the appointments in the Executive Department,
but also to judicial appointments, contrary to the submission of PHILCONSA; that
Section 15 does not distinguish; and that Valenzuela already interpreted the
prohibition as applicable to judicial appointments.
Intervenor WTLOP further posits that petitioner Sorianos contention that the
power to appoint the Chief Justice is vested, not in the President, but in the Supreme
Court, is utterly baseless, because the Chief Justice is also a Member of the Supreme
Court as contemplated under Section 9, Article VIII; and that, at any rate, the term
members was interpreted in Vargas v. Rillaroza (G.R. No. L-1612, February 26,
1948) to refer to the Chief Justice and the Associate Justices of the Supreme Court;
that PHILCONSAs prayer that the Court pass a resolution declaring that persons
who manifest their interest as nominees, but with conditions, shall not be considered
nominees by the JBC is diametrically opposed to the arguments in the body of its
petition; that such glaring inconsistency between the allegations in the body and the
relief prayed for highlights the lack of merit of PHILCONSAs petition; that the role
of the JBC cannot be separated from the constitutional prohibition on the President;
and that the Court must direct the JBC to follow the rule of law, that is, to submit
the list of nominees only to the next duly elected President after the period of the
constitutional ban against midnight appointments has expired.

Oppositor IBP Davao del Sur opines that the JBC because it is neither a
judicial nor a quasi-judicial body has no duty under the Constitution to resolve the
question of whether the incumbent President can appoint a Chief Justice during the
period of prohibition; that even if the JBC has already come up with a short list, it
still has to bow to the strict limitations under Section 15, Article VII; that should the
JBC defer submission of the list, it is not arrogating unto itself a judicial function,
but simply respecting the clear mandate of the Constitution; and that the application
of the general rule in Section 15, Article VII to the Judiciary does not violate the
principle of separation of powers, because said provision is an exception.

Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the JBCs act of
nominating appointees to the Supreme Court is purely ministerial and does not
involve the exercise of judgment; that there can be no default on the part of the JBC
in submitting the list of nominees to the President, considering that the call for
applications only begins from the occurrence of the vacancy in the Supreme Court;
and that the commencement of the process of screening of applicants to fill the
vacancy in the office of the Chief Justice only begins from the retirement on May
17, 2010, for, prior to this date, there is no definite legal basis for any party to claim
that the submission or non-submission of the list of nominees to the President by the
JBC is a matter of right under law.

The main question presented in all the filings herein because it involves two
seemingly conflicting provisions of the Constitution imperatively demands the
attention and resolution of this Court, the only authority that can resolve the question
definitively and finally. The imperative demand rests on the ever-present need, first,
to safeguard the independence, reputation, and integrity of the entire Judiciary,
particularly this Court, an institution that has been unnecessarily dragged into the
harsh polemics brought on by the controversy; second, to settle once and for all the
doubt about an outgoing Presidents power to appoint to the Judiciary within the long
period starting two months before the presidential elections until the end of the
presidential term; and third, to set a definite guideline for the JBC to follow in the
discharge of its primary office of screening and nominating qualified persons for
appointment to the Judiciary.

Thus, we resolve.

Ruling of the Court

Locus Standi of Petitioners

The preliminary issue to be settled is whether or not the petitioners have locus
standi.

Black defines locus standi as a right of appearance in a court of justice on a

given question.[41] In public or constitutional litigations, the Court is often burdened
with the determination of the locus standi of the petitioners due to the ever-present
need to regulate the invocation of the intervention of the Court to correct any official
action or policy in order to avoid obstructing the efficient functioning of public
officials and offices involved in public service. It is required, therefore, that the
petitioner must have a personal stake in the outcome of the controversy, for, as
indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:[42]

The question on legal standing is whether such parties have

alleged such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of
difficult constitutional questions.[43] Accordingly, it has been held that
the interest of a person assailing the constitutionality of a statute must
be direct and personal. He must be able to show, not only that the law
or any government act is invalid, but also that he sustained or is in
imminent danger of sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in some
indefinite way. It must appear that the person complaining has been
or is about to be denied some right or privilege to which he is lawfully
entitled or that he is about to be subjected to some burdens or
penalties by reason of the statute or act complained of.[44]

It is true that as early as in 1937, in People v. Vera,[45] the Court adopted

the direct injury test for determining whether a petitioner in a public action had locus
standi. There, the Court held that the person who would assail the validity of a statute
must have a personal and substantial interest in the case such that he has sustained,
or will sustain direct injury as a result. Vera was followed in Custodio v. President
of the Senate,[46] Manila Race Horse Trainers Association v. De la Fuente,[47] Anti-
Chinese League of the Philippines v. Felix,[48] and Pascual v. Secretary of Public
Works.[49]

Yet, the Court has also held that the requirement of locus standi, being a mere
procedural technicality, can be waived by the Court in the exercise of its discretion.
For instance, in 1949, in Araneta v. Dinglasan,[50] the Court liberalized the approach
when the cases had transcendental importance. Some notable controversies
whose petitioners did not pass the direct injury test were allowed to be treated in the
same way as in Araneta v. Dinglasan.[51]

In the 1975 decision in Aquino v. Commission on Elections,[52] this Court decided to

resolve the issues raised by the petition due to their far-reaching implications, even
if the petitioner had no personality to file the suit. The liberal approach of Aquino v.
Commission on Elections has been adopted in
several notable cases, permitting ordinary citizens, legislators, and civic
organizations to bring their suits involving the constitutionality or validity of laws,
regulations, and rulings.[53]

However, the assertion of a public right as a predicate for challenging a

supposedly illegal or unconstitutional executive or legislative action rests on the
theory that the petitioner represents the public in general. Although such petitioner
may not be as adversely affected by the action complained against as are others, it is
enough that he sufficiently demonstrates in his petition that he is entitled to
protection or relief from the Court in the vindication of a public right.

Quite often, as here, the petitioner in a public action sues as

a citizen or taxpayer to gain locus standi. That is not surprising, for even if the issue
may appear to concern only the public in general, such capacities nonetheless equip
the petitioner with adequate interest to sue. In David v. Macapagal-Arroyo,[54] the
Court aptly explains why:

Case law in most jurisdictions now allows both citizen and taxpayer
standing in public actions. The distinction was first laid down
in Beauchamp v. Silk,[55] where it was held that the plaintiff in a taxpayers
suit is in a different category from the plaintiff in a citizens suit. In the
former, the plaintiff is affected by the expenditure of public funds,
while in the latter, he is but the mere instrument of the public
concern. As held by the New York Supreme Court in People ex rel Case
v. Collins:[56] In matter of mere public right, howeverthe people are the
real partiesIt is at least the right, if not the duty, of every citizen to
interfere and see that a public offence be properly pursued and
punished, and that a public grievance be remedied. With respect to
taxpayers suits, Terr v. Jordan[57] held that the right of a citizen and a
taxpayer to maintain an action in courts to restrain the unlawful use
of public funds to his injury cannot be denied.[58]

Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and
Peralta (G.R. No. 191149) all assert their right as citizens filing their petitions on
behalf of the public who are directly affected by the issue of the appointment of the
next Chief Justice. De Castro and Soriano further claim standing as taxpayers, with
Soriano averring that he is affected by the continuing proceedings in the JBC, which
involve unnecessary, if not, illegal disbursement of public funds.[59]

PHILCONSA alleges itself to be a non-stock, non-profit organization existing

under the law for the purpose of defending, protecting, and preserving the
Constitution and promoting its growth and flowering. It also alleges that the Court
has recognized its legal standing to file cases on constitutional issues in several
cases.[60]

In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the Philippines,

a member of the Philippine Bar engaged in the active practice of law, and a former
Solicitor General, former Minister of Justice, former Member of the Interim
Batasang Pambansa and the Regular Batasang Pambansa, and former member of the
Faculty of the College of Law of the University of the Philippines.

The petitioners in G.R. No. 191342 are the Governors of the Integrated Bar of
the Philippines (IBP) for Southern Luzon and Eastern Visayas. They allege that they
have the legal standing to enjoin the submission of the list of nominees by the JBC
to the President, for [a]n adjudication of the proper interpretation and application of
the constitutional ban on midnight appointments with regard to respondent JBCs
function in submitting the list of nominees is well within the concern of petitioners,
who are duty bound to ensure that obedience and respect for the Constitution is
upheld, most especially by government offices, such as respondent JBC, who are
specifically tasked to perform crucial functions in the whole scheme of our
democratic institution. They further allege that, reposed in them as members of the
Bar, is a clear legal interest in the process of selecting the members of the Supreme
Court, and in the selection of the Chief Justice, considering that the person appointed
becomes a member of the body that has constitutional supervision and authority over
them and other members of the legal profession.[61]
The Court rules that the petitioners have each demonstrated adequate interest
in the outcome of the controversy as to vest them with the requisite locus standi. The
issues before us are of transcendental importance to the people as a whole, and to
the petitioners in particular. Indeed, the issues affect everyone (including the
petitioners), regardless of ones personal interest in life, because they
concern that great doubt about the authority of the incumbent President to appoint
not only the successor of the retiring incumbent Chief Justice, but also others who
may serve in the Judiciary, which already suffers from a far too great number of
vacancies in the ranks of trial judges throughout the country.

In any event, the Court retains the broad discretion to waive the requirement
of legal standing in favor of any petitioner when the matter involved has
transcendental importance, or otherwise requires a liberalization of the
requirement.[62]

Yet, if any doubt still lingers about the locus standi of any petitioner, we
dispel the doubt now in order to remove any obstacle or obstruction to the resolution
of the essential issue squarely presented herein. We are not to shirk from discharging
our solemn duty by reason alone of an obstacle more technical than otherwise.
In Agan, Jr. v. Philippine International Air Terminals Co., Inc.,[63] we pointed out:
Standing is a peculiar concept in constitutional law because in some cases, suits are
not brought by parties who have been personally injured by the operation of a law
or any other government act but by concerned citizens, taxpayers or voters who
actually sue in the public interest. But even if, strictly speaking, the petitioners are
not covered by the definition, it is still within the wide discretion of the Court to
waive the requirement and so remove the impediment to its addressing and resolving
the serious constitutional questions raised.[64]

Justiciability

Intervenor NUPL maintains that there is no actual case or controversy that is

appropriate or ripe for adjudication, considering that although the selection process
commenced by the JBC is going on, there is yet no final list of nominees; hence,
there is no imminent controversy as to whether such list must be submitted to the
incumbent President, or reserved for submission to the incoming President.

Intervenor Tan raises the lack of any actual justiciable controversy that is ripe
for judicial determination, pointing out that petitioner De Castro has not even shown
that the JBC has already completed its selection process and is now ready to submit
the list to the incumbent President; and that petitioner De Castro is merely presenting
a hypothetical scenario that is clearly not sufficient for the Court to exercise its
power of judicial review.

Intervenors Corvera and Lim separately opine that De Castros petition rests
on an overbroad and vague allegation of political tension, which is insufficient basis
for the Court to exercise its power of judicial review.

Intervenor BAYAN et al. contend that the petitioners are seeking a mere
advisory opinion on what the JBC and the President should do, and are not invoking
any issues that are justiciable in nature.

Intervenors Bello et al. submit that there exist no conflict of legal rights and
no assertion of opposite legal claims in any of the petitions; that PHILCONSA does
not allege any action taken by the JBC, but simply avers that the conditional
manifestations of two Members of the Court, accented by the divided opinions and
interpretations of legal experts, or associations of lawyers and law students on the
issues published in the daily newspapers are matters of paramount and
transcendental importance to the bench, bar and general public; that PHILCONSA
fails not only to cite any legal duty or allege any failure to perform the duty, but also
to indicate what specific action should be done by the JBC; that Mendoza does not
even attempt to portray the matter as a controversy or conflict of rights, but, instead,
prays that the Court should rule for the guidance of the JBC; that the fact that the
Court supervises the JBC does not automatically imply that the Court can rule on the
issues presented in the Mendoza petition, because supervision involves oversight,
which means that the subordinate officer or body must first act, and if such action is
not in accordance with prescribed rules, then, and only then, may the person
exercising oversight order the action to be redone to conform to the prescribed rules;
that the Mendoza petition does not allege that the JBC has performed a specific act
susceptible to correction for being illegal or unconstitutional; and that the Mendoza
petition asks the Court to issue an advisory ruling, not to exercise its power of
supervision to correct a wrong act by the JBC, but to declare the state of the law in
the absence of an actual case or controversy.

We hold that the petitions set forth an actual case or controversy that is ripe
for judicial determination. The reality is that the JBC already commenced the
proceedings for the selection of the nominees to be included in a short list to be
submitted to the President for consideration of which of them will succeed Chief
Justice Puno as the next Chief Justice. Although the position is not yet vacant, the
fact that the JBC began the process of nomination pursuant to its rules and practices,
although it has yet to decide whether to submit the list of nominees to the incumbent
outgoing President or to the next President, makes the situation ripe for judicial
determination, because the next steps are the public interview of the candidates, the
preparation of the short list of candidates, and the interview of constitutional experts,
as may be needed.

A part of the question to be reviewed by the Court is whether the JBC properly
initiated the process, there being an insistence from some of the oppositors-
intervenors that the JBC could only do so once the vacancy has occurred (that is,
after May 17, 2010). Another part is, of course, whether the JBC may resume its
process until the short list is prepared, in view of the provision of Section 4(1),
Article VIII, which unqualifiedly requires the President to appoint one from the short
list to fill the vacancy in the Supreme Court (be it the Chief Justice or an Associate
Justice) within 90 days from the occurrence of the vacancy.

The ripeness of the controversy for judicial determination may not be doubted.
The challenges to the authority of the JBC to open the process of nomination and to
continue the process until the submission of the list of nominees; the insistence of
some of the petitioners to compel the JBC through mandamus to submit the short list
to the incumbent President; the counter-insistence of the intervenors to prohibit the
JBC from submitting the short list to the incumbent President on the ground that said
list should be submitted instead to the next President; the strong position that the
incumbent President is already prohibited under Section 15, Article VII from making
any appointments, including those to the Judiciary, starting on May 10, 2010 until
June 30, 2010; and the contrary position that the incumbent President is not so
prohibited are only some of the real issues for determination. All such issues
establish the ripeness of the controversy, considering that for some the short list must
be submitted before the vacancy actually occurs by May 17, 2010. The outcome will
not be an abstraction, or a merely hypothetical exercise. The resolution of the
controversy will surely settle with finality the nagging questions that are preventing
the JBC from moving on with the process that it already began, or that are reasons
persuading the JBC to desist from the rest of the process.

We need not await the occurrence of the vacancy by May 17, 2010 in order
for the principal issue to ripe for judicial determination by the Court. It is enough
that one alleges conduct arguably affected with a constitutional interest, but
seemingly proscribed by the Constitution. A reasonable certainty of the occurrence
of the perceived threat to a constitutional interest is sufficient to afford a basis for
bringing a challenge, provided the Court has sufficient facts before it to enable it to
intelligently adjudicate the issues.[65] Herein, the facts are not in doubt, for only legal
issues remain.

Substantive Merits

I
Prohibition under Section 15, Article VII does not apply
to appointments to fill a vacancy in the Supreme Court
or to other appointments to the Judiciary

Two constitutional provisions are seemingly in conflict.

The first, Section 15, Article VII (Executive Department), provides:

Section 15. Two months immediately before the next presidential

elections and up to the end of his term, a President or Acting President
shall not make appointments, except temporary appointments to executive
 positions when continued vacancies therein will prejudice public service
or endanger public safety.

The other, Section 4 (1), Article VIII (Judicial Department), states:

Section 4. (1). The Supreme Court shall be composed of a Chief

Justice and fourteen Associate Justices. It may sit en banc or in its
discretion, in division of three, five, or seven Members. Any vacancy shall
be filled within ninety days from the occurrence thereof.

In the consolidated petitions, the petitioners, with the exception of Soriano,

Tolentino and Inting, submit that the incumbent President can appoint the successor
of Chief Justice Puno upon his retirement on May 17, 2010, on the ground that the
prohibition against presidential appointments under Section 15, Article VII does not
extend to appointments in the Judiciary.

The Court agrees with the submission.

First. The records of the deliberations of the Constitutional Commission

reveal that the framers devoted time to meticulously drafting, styling, and arranging
the Constitution. Such meticulousness indicates that the organization and
arrangement of the provisions of the Constitution were not arbitrarily or whimsically
done by the framers, but purposely made to reflect their intention and manifest their
vision of what the Constitution should contain.

The Constitution consists of 18 Articles, three of which embody the allocation

of the awesome powers of government among the three great departments, the
Legislative (Article VI), the Executive (Article VII), and the Judicial Departments
(Article VIII). The arrangement was a true recognition of the principle of separation
of powers that underlies the political structure, as Constitutional Commissioner
Adolfo S. Azcuna (later a worthy member of the Court) explained in his sponsorship
speech:

We have in the political part of this Constitution opted for the

separation of powers in government because we believe that the only way
to protect freedom and liberty is to separate and divide the awesome
powers of government. Hence, we return to the separation of powers
doctrine and the legislative, executive and judicial departments.[66]

As can be seen, Article VII is devoted to the Executive Department, and,

among others, it lists the powers vested by the Constitution in the President. The
presidential power of appointment is dealt with in Sections 14, 15 and 16 of the
Article.

Article VIII is dedicated to the Judicial Department and defines the duties and
qualifications of Members of the Supreme Court, among others. Section 4(1) and
Section 9 of this Article are the provisions specifically providing for the appointment
of Supreme Court Justices. In particular, Section 9 states that the appointment of
Supreme Court Justices can only be made by the President upon the submission of a
list of at least three nominees by the JBC; Section 4(1) of the Article mandates the
President to fill the vacancy within 90 days from the occurrence of the vacancy.

Had the framers intended to extend the prohibition contained in Section 15,
Article VII to the appointment of Members of the Supreme Court, they could have
explicitly done so. They could not have ignored the meticulous ordering of the
provisions. They would have easily and surely written the prohibition made explicit
in Section 15, Article VII as being equally applicable to the appointment of Members
of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII.
That such specification was not done only reveals that the prohibition against the
President or Acting President making appointments within two months before the
next presidential elections and up to the end of the Presidents or Acting Presidents
term does not refer to the Members of the Supreme Court.

Although Valenzuela[67] came to hold that the prohibition covered even

judicial appointments, it cannot be disputed that the Valenzuela dictum did not
firmly rest on the deliberations of the Constitutional Commission. Thereby, the
confirmation made to the JBC by then Senior Associate Justice Florenz D. Regalado
of this Court, a former member of the Constitutional Commission, about the
prohibition not being intended to apply to the appointments to the Judiciary, which
confirmationValenzuela even expressly mentioned, should prevail.

Relevantly, Valenzuela adverted to the intent of the framers in the genesis of Section
4 (1), Article VIII, viz:

V . Intent of the Constitutional Commission

The journal of the Commission which drew up the present

Constitution discloses that the original proposal was to have an eleven-
member Supreme Court. Commissioner Eulogio Lerum wanted to
increase the number of Justices to fifteen. He also wished to ensure that
that number would not be reduced for any appreciable length of time (even
only temporarily), and to this end proposed that any vacancy must be filled
within two months from the date that the vacancy occurs. His proposal to
have a 15-member Court was not initially adopted.Persisting however in
his desire to make certain that the size of the Court would not be decreased
for any substantial period as a result of vacancies, Lerum proposed the
insertion in the provision (anent the Courts membership) of the same
mandate that IN CASE OF ANY VACANCY, THE SAME SHALL BE
FILLED WITHIN TWO MONTHS FROM OCCURRENCE
THEREOF. He later agreed to suggestions to make the period three,
instead of two, months. As thus amended, the proposal was approved. As
it turned out, however, the Commission ultimately agreed on a fifteen-
member Court. Thus it was that the section fixing the composition of
 the Supreme Court came to include a command to fill up any vacancy
therein within 90 days from its occurrence.

In this connection, it may be pointed out that that instruction that any
vacancy shall be filled within ninety days (in the last sentence of Section
4 (1) of Article VIII) contrasts with the prohibition in Section 15, Article
VII, which is couched in stronger negative language - that a President or
Acting President shall not make appointments

The commission later approved a proposal of Commissioner Hilario

G. Davide, Jr. (now a Member of this Court) to add to what is now Section
9 of Article VIII, the following paragraph: WITH RESPECT TO LOWER
COURTS, THE PRESIDENT SHALL ISSUE THE APPOINTMENT
WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST (of
nominees by the Judicial and Bar Council to the President). Davide stated
that his purpose was to provide a uniform rule for lower courts. According
to him, the 90-day period should be counted from submission of the list
of nominees to the President in view of the possibility that the President
might reject the list submitted to him and the JBC thus need more time to
submit a new one.
On the other hand, Section 15, Article VII - which in effect deprives
the President of his appointing power two months immediately before the
next presidential elections up to the end of his term - was approved
without discussion.[68]

However, the reference to the records of the Constitutional Commission did not
advance or support the result in Valenzuela. Far to the contrary, the records disclosed
the express intent of the framers to enshrine in the Constitution, upon the initiative
of Commissioner Eulogio Lerum, a command [to the President] to fill up any
vacancy therein within 90 days from its occurrence, which
even Valenzuela conceded.[69] The exchanges during deliberations of the
Constitutional Commission on October 8, 1986 further show that the filling of a
vacancy in the Supreme Court within the 90-day period was a true mandate for the
President, viz:

MR. DE CASTRO. I understand that our justices now in the Supreme

Court, together with the Chief Justice, are only 11.

MR. CONCEPCION. Yes.

MR. DE CASTRO. And the second sentence of this subsection

reads: Any vacancy shall be filled within ninety days from the
occurrence thereof.

MR. CONCEPCION. That is right.

MR. DE CASTRO. Is this now a mandate to the executive to fill the

vacancy?

MR. CONCEPCION. That is right. That is borne out of the fact that
in the past 30 years, seldom has the Court had a complete
complement.[70]
 Moreover, the usage in Section 4(1), Article VIII of the word shall an
imperative, operating to impose a duty that may be enforced[71] should not be
disregarded. Thereby, Sections 4(1) imposes on the President the imperative duty to
make an appointment of a Member of the Supreme Court within 90 days from the
occurrence of the vacancy. The failure by the President to do so will be a clear
disobedience to the Constitution.
The 90-day limitation fixed in Section 4(1), Article VIII for the President to
fill the vacancy in the Supreme Court was undoubtedly a special provision to
establish a definite mandate for the President as the appointing power, and cannot
be defeated by mere judicial interpretation in Valenzuela to the effect that Section
15, Article VII prevailed because it was couched in stronger negative language.
Such interpretation even turned out to be conjectural, in light of the records of the
Constitutional Commissions deliberations on Section 4 (1), Article VIII.

How Valenzuela justified its pronouncement and result is hardly warranted.

According to an authority on statutory construction:[72]

xxx the court should seek to avoid any conflict in the provisions of
the statute by endeavoring to harmonize and reconcile every part so that
each shall be effective. It is not easy to draft a statute, or any other writing
for that matter, which may not in some manner contain conflicting
provisions. But what appears to the reader to be a conflict may not have
seemed so to the drafter. Undoubtedly, each provision was inserted for a
definite reason. Often by considering the enactment in its entirety, what
appears to be on its face a conflict may be cleared up and the provisions
reconciled.

Consequently, that construction which will leave every word

operative will be favored over one which leaves some word or provision
meaningless because of inconsistency. But a word should not be given
effect, if to do so gives the statute a meaning contrary to the intent of the
legislature. On the other hand, if full effect cannot be given to the words
of a statute, they must be made effective as far as possible. Nor should the
provisions of a statute which are inconsistent be harmonized at a sacrifice
of the legislative intention. It may be that two provisions are
irreconcilable; if so, the one which expresses the intent of the law-makers
should control. And the arbitrary rule has been frequently announced that
where there is an irreconcilable conflict between the different provisions
of a statute, the provision last in order of position will prevail, since it is
the latest expression of the legislative will. Obviously, the rule is subject
to deserved criticism. It is seldom applied, and probably then only where
an irreconcilable conflict exists between different sections of the same act,
and after all other means of ascertaining the meaning of the legislature
have been exhausted. Where the conflict is between two statutes, more
may be said in favor of the rules application, largely because of the
principle of implied repeal.

In this connection, PHILCONSAs urging of a revisit and a review

of Valenzuela is timely and appropriate. Valenzuela arbitrarily ignored the express
intent of the Constitutional Commission to have Section 4 (1), Article VIII
stand independently of any other provision, least of all one found in Article VII. It
further ignored that the two provisions had no irreconcilable conflict, regardless of
Section 15, Article VII being couched in the negative. As judges, we are not to
unduly interpret, and should not accept an interpretation that defeats the intent of the
framers.[73]

Consequently, prohibiting the incumbent President from appointing a Chief Justice

on the premise that Section 15, Article VII extends to appointments in the Judiciary
cannot be sustained. A misinterpretation like Valenzuela should not be allowed to
last after its false premises have been exposed.[74] It will not do to merely
distinguish Valenzuela from these cases, for the result to be reached herein is entirely
incompatible with what Valenzuela decreed. Consequently,
Valenzuela now deserves to be quickly sent to the dustbin of the unworthy and
forgettable.

We reverse Valenzuela.

Second. Section 15, Article VII does not apply as well to

all other appointments in the Judiciary.

There is no question that one of the reasons underlying the adoption of Section
15 as part of Article VII was to eliminate midnight appointments from being made
by an outgoing Chief Executive in the mold of the appointments dealt with in the
leading case of Aytona v. Castillo.[75] In fact, in Valenzuela, the Court so observed,
stating that:

xxx it appears that Section 15, Article VII is directed against two types of
appointments: (1) those made for buying votes and (2) those made for partisan
considerations. The first refers to those appointments made within the two months
preceding a Presidential election and are similar to those which are declared
election offenses in the Omnibus Election Code, viz.:

xxx

The second type of appointments prohibited by Section 15, Article

VII consists of the so-called midnight appointments. In Aytona v.
Castillo, it was held that after the proclamation of Diosdado Macapagal as
duly elected President, President Carlos P. Garcia, who was defeated in
his bid for reelection, became no more than a caretaker administrator
whose duty was to prepare for the orderly transfer of authority to the
incoming President. Said the Court:

The filling up of vacancies in important positions, if few, and so spaced

as to afford some assurance of deliberate action and careful consideration
of the need for the appointment and appointee's qualifications may
undoubtedly be permitted. But the issuance of 350 appointments in one
night and the planned induction of almost all of them in a few hours before
the inauguration of the new President may, with some reason, be regarded
by the latter as an abuse of Presidential prerogatives, the steps taken being
apparently a mere partisan effort to fill all vacant positions irrespective of
fitness and other conditions, and thereby to deprive the new administration
of an opportunity to make the corresponding appointments.

As indicated, the Court recognized that there may well be

appointments to important positions which have to be made even after the
 proclamation of the new President. Such appointments, so long as they
are few and so spaced as to afford some assurance of deliberate action
and careful consideration of the need for the appointment and the
appointees qualifications, can be made by the outgoing
President. Accordingly, several appointments made by President Garcia,
which were shown to have been well considered, were upheld.

Section 15, Article VII has a broader scope than

the Aytona ruling. It may not unreasonably be deemed to contemplate
not only midnight appointments those made obviously for partisan
reasons as shown by their number and the time of their making but
also appointments presumed made for the purpose of influencing the
outcome of the Presidential election.

On the other hand, the exception in the same Section 15 of Article

VII allowing appointments to be made during the period of the ban therein
provided is much narrower than that recognized in Aytona. The exception
allows only the making of temporary appointments toexecutive positions
when continued vacancies will prejudice public service or endanger
public safety. Obviously, the article greatly restricts the appointing power
of the President during the period of the ban.

Considering the respective reasons for the time frames for filling
vacancies in the courts and the restriction on the President's power of
appointment, it is this Courts view that, as a general proposition, in case
of conflict, the former should yield to the latter. Surely, the prevention of
vote-buying and similar evils outweighs the need for avoiding delays in
filling up of court vacancies or the disposition of some cases. Temporary
vacancies can abide the period of the ban which, incidentally and as
earlier pointed out, comes to exist only once in every six years. Moreover,
those occurring in the lower courts can be filled temporarily by
designation. But prohibited appointments are long-lasting and permanent
in their effects. They may, as earlier pointed out, in fact influence the
results of elections and, for that reason, their making is considered an
election offense.[76]

Given the background and rationale for the prohibition in Section 15, Article
VII, we have no doubt that the Constitutional Commission confined the prohibition
to appointments made in the Executive Department. The framers did not need to
extend the prohibition to appointments in the Judiciary, because their establishment
of the JBC and their subjecting the nomination and screening of candidates for
judicial positions to the unhurried and deliberate prior process of the JBC ensured
that there would no longer be midnight appointments to the Judiciary. If midnight
appointments in the mold of Aytona were made in haste and with irregularities, or
made by an outgoing Chief Executive in the last days of his administration out of a
desire to subvert the policies of the incoming President or for partisanship,[77] the
appointments to the Judiciary made after the establishment of the JBC would not be
suffering from such defects because of the JBCs prior processing of candidates.
Indeed, it is axiomatic in statutory construction that the ascertainment of the purpose
of the enactment is a step in the process of ascertaining the intent or meaning of the
enactment, because the reason for the enactment must necessarily shed considerable
light on the law of the statute, i.e., the intent; hence, the enactment should be
construed with reference to its intended scope and purpose, and the court should seek
to carry out this purpose rather than to defeat it.[78]

Also, the intervention of the JBC eliminates the danger that appointments to
the Judiciary can be made for the purpose of buying votes in a coming presidential
election, or of satisfying partisan considerations. The experience from the time of
the establishment of the JBC shows that even candidates for judicial positions at any
level backed by people influential with the President could not always be assured of
being recommended for the consideration of the President, because they first had to
undergo the vetting of the JBC and pass muster there. Indeed, the creation of the
JBC was precisely intended to de-politicize the Judiciary by doing away with the
intervention of the Commission on Appointments. This insulating process was
absent from the Aytona midnight appointment.

Third. As earlier stated, the non-applicability of Section 15, Article VII to

appointments in the Judiciary was confirmed by then Senior Associate Justice
Regalado to the JBC itself when it met on March 9, 1998 to discuss the question
raised by some sectors about the constitutionality of xxx appointments to the Court
of Appeals in light of the forthcoming presidential elections. He assured that on the
basis of the (Constitutional) Commissions records, the election ban had no
application to appointments to the Court of Appeals.[79] This confirmation
was accepted by the JBC, which then submitted to the President for consideration
the nominations for the eight vacancies in the Court of Appeals.[80]

The fault of Valenzuela was that it accorded no weight and due consideration
to the confirmation of Justice Regalado. Valenzuela was weak, because it relied on
interpretation to determine the intent of the framers rather than on the deliberations
of the Constitutional Commission. Much of the unfounded doubt about the
Presidents power to appoint during the period of prohibition in Section 15, Article
VII could have been dispelled since its promulgation on November 9, 1998,
had Valenzuelaproperly acknowledged and relied on the confirmation of a
distinguished member of the Constitutional Commission like Justice Regalado.

Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15,
and Section 16) concern the appointing powers of the President.

Section 14 speaks of the power of the succeeding President to revoke

appointments made by an Acting President,[81] and evidently refers only to
appointments in the Executive Department. It has no application to appointments in
the Judiciary, because temporary or acting appointments can only undermine the
independence of the Judiciary due to their being revocable at will.[82] The letter and
spirit of the Constitution safeguard that independence. Also, there is no law in the
books that authorizes the revocation of appointments in the Judiciary. Prior to their
mandatory retirement or resignation, judges of the first and second level courts and
the Justices of the third level courts may only be removed for cause, but the Members
of the Supreme Court may be removed only by impeachment.
 Section 16 covers only the presidential appointments that require confirmation
by the Commission on Appointments. Thereby, the Constitutional Commission
restored the requirement of confirmation by the Commission on Appointments after
the requirement was removed from the 1973 Constitution. Yet, because of Section 9
of Article VIII, the restored requirement did not include appointments to the
Judiciary.[83]

Section 14, Section 15, and Section 16 are obviously of the same character, in
that they affect the power of the President to appoint. The fact that Section 14 and
Section 16 refer only to appointments within the Executive Department renders
conclusive that Section 15 also applies only to the Executive Department. This
conclusion is consistent with the rule that every part of the statute must be interpreted
with reference to the context, i.e. that every part must be considered together with
the other parts, and kept subservient to the general intent of the whole
enactment.[84] It is absurd to assume that the framers deliberately situated Section
15 between Section 14 and Section 16, if they intended Section 15 to cover all kinds
of presidential appointments. If that was their intention in respect of appointments
to the Judiciary, the framers, if only to be clear, would have easily and surely inserted
a similar prohibition in Article VIII, most likely within Section 4 (1) thereof.

Fifth. To hold like the Court did in Valenzuela that Section 15 extends to
appointments to the Judiciary further undermines the intent of the Constitution of
ensuring the independence of the Judicial Department from the Executive and
Legislative Departments. Such a holding will tie the Judiciary and the Supreme
Court to the fortunes or misfortunes of political leaders vying for the Presidency in
a presidential election. Consequently, the wisdom of having the new President,
instead of the current incumbent President, appoint the next Chief Justice is itself
suspect, and cannot ensure judicial independence, because the appointee can also
become beholden to the appointing authority. In contrast, the appointment by the
incumbent President does not run the same risk of compromising judicial
independence, precisely because her term will end by June 30, 2010.

Sixth. The argument has been raised to the effect that there will be no need for
the incumbent President to appoint during the prohibition period the successor of
Chief Justice Puno within the context of Section 4 (1), Article VIII, because anyway
there will still be about 45 days of the 90 days mandated in Section 4(1), Article VIII
remaining.

The argument is flawed, because it is focused only on the coming vacancy

occurring from Chief Justice Punos retirement by May 17, 2010. It ignores the need
to apply Section 4(1) to every situation of a vacancy in the Supreme Court.

The argument also rests on the fallacious assumption that there will still be
time remaining in the 90-day period under Section 4(1), Article VIII. The fallacy is
easily demonstrable, as the OSG has shown in its comment.

Section 4 (3), Article VII requires the regular elections to be held on the
second Monday of May, letting the elections fall on May 8, at the earliest, or May
14, at the latest. If the regular presidential elections are held on May 8, the period of
the prohibition is 115 days. If such elections are held on May 14, the period of the
prohibition is 109 days. Either period of the prohibition is longer than the full
mandatory 90-day period to fill the vacancy in the Supreme Court. The result is that
there are at least 19 occasions (i.e., the difference between the shortest possible
period of the ban of 109 days and the 90-day mandatory period for appointments) in
which the outgoing President would be in no position to comply with the
constitutional duty to fill up a vacancy in the Supreme Court. It is safe to assume
that the framers of the Constitution could not have intended such an absurdity. In
fact, in their deliberations on the mandatory period for the appointment of Supreme
Court Justices under Section 4 (1), Article VIII, the framers neither discussed, nor
mentioned, nor referred to the ban against midnight appointments under Section 15,
Article VII, or its effects on the 90-day period, or vice versa. They did not need to,
because they never intended Section 15, Article VII to apply to a vacancy in the
Supreme Court, or in any of the lower courts.

Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on

whether a JBC list is necessary at all for the President any President to appoint a
Chief Justice if the appointee is to come from the ranks of the sitting justices of the
Supreme Court.
Sec. 9, Article VIII says:

xxx. The Members of the Supreme Court xxx shall be appointed by

the President from a list of at least three nominees prepared by the Judicial
and Bar Council for any vacancy. Such appointments need no
confirmation.
xxx

The provision clearly refers to an appointee coming into the Supreme Court from
the outside, that is, a non-member of the Court aspiring to become one. It speaks of
candidates for the Supreme Court, not of those who are already members or sitting
justices of the Court, all of whom have previously been vetted by the JBC.

Can the President, therefore, appoint any of the incumbent Justices of the
Court as Chief Justice?

The question is not squarely before us at the moment, but it should lend itself
to a deeper analysis if and when circumstances permit. It should be a good issue for
the proposed Constitutional Convention to consider in the light of Senate President
Juan Ponce Enriles statement that the President can appoint the Chief Justice from
among the sitting justices of the Court even without a JBC list.

II
The Judiciary Act of 1948
The posture has been taken that no urgency exists for the President to appoint the
successor of Chief Justice Puno, considering that the Judiciary Act of 1948 can still
address the situation of having the next President appoint the successor.

Section 12 of the Judiciary Act of 1948 states:

Section 12. Vacancy in Office of Chief Justice. In case of a vacancy

in the office of Chief Justice of the Supreme Court or of his inability to
perform the duties and powers of his office, they shall devolve upon the
Associate Justice who is first in precedence, until such disability is
removed, or another Chief Justice is appointed and duly qualified. This
provision shall apply to every Associate Justice who succeeds to the office
of Chief Justice.

The provision calls for an Acting Chief Justice in the event of a vacancy in the
office of the Chief Justice, or in the event that the Chief Justice is unable to perform
his duties and powers. In either of such circumstances, the duties and powers of the
office of the Chief Justice shall devolve upon the Associate Justice who is first in
precedence until a new Chief Justice is appointed or until the disability is removed.

Notwithstanding that there is no pressing need to dwell on this peripheral matter

after the Court has hereby resolved the question of consequence, we do not find it
amiss to confront the matter now.

We cannot agree with the posture.

A review of Sections 4(1) and 9 of Article VIII shows that the Supreme Court is
composed of a Chief Justice and 14 Associate Justices, who all shall be appointed
by the President from a list of at least three nominees prepared by the JBC for every
vacancy, which appointments require no confirmation by the Commission on
Appointments. With reference to the Chief Justice, he or she is appointed by the
President as Chief Justice, and the appointment is never in an acting capacity. The
express reference to a Chief Justice abhors the idea that the framers contemplated
an Acting Chief Justice to head the membership of the Supreme Court. Otherwise,
they would have simply written so in the Constitution. Consequently, to rely on
Section 12 of the Judiciary Act of 1948 in order to forestall the imperative need to
appoint the next Chief Justice soonest is to defy the plain intent of the Constitution.

For sure, the framers intended the position of Chief Justice to be permanent,
not one to be occupied in an acting or temporary capacity. In relation to the scheme
of things under the present Constitution, Section 12 of the Judiciary Act of 1948 only
responds to a rare situation in which the new Chief Justice is not yet appointed, or
in which the incumbent Chief Justice is unable to perform the duties and powers of
the office. It ought to be remembered, however, that it was enacted because the Chief
Justice appointed under the 1935 Constitution was subject to the confirmation of the
Commission on Appointments, and the confirmation process might take longer than
expected.
 The appointment of the next Chief Justice by the incumbent President is
preferable to having the Associate Justice who is first in precedence take over. Under
the Constitution, the heads of the Legislative and Executive Departments are
popularly elected, and whoever are elected and proclaimed at once become the
leaders of their respective Departments. However, the lack of any appointed
occupant of the office of Chief Justice harms the independence of the Judiciary,
because the Chief Justice is the head of the entire Judiciary. The Chief Justice
performs functions absolutely significant to the life of the nation. With the entire
Supreme Court being the Presidential Electoral Tribunal, the Chief Justice is the
Chairman of the Tribunal. There being no obstacle to the appointment of the next
Chief Justice, aside from its being mandatory for the incumbent President to make
within the 90-day period from May 17, 2010, there is no justification to insist that
the successor of Chief Justice Puno be appointed by the next President.

Historically, under the present Constitution, there has been no wide gap
between the retirement and the resignation of an incumbent Chief Justice, on one
hand, and the appointment to and assumption of office of his successor, on the other
hand. As summarized in the comment of the OSG, the chronology of succession is
as follows:

1. When Chief Justice Claudio Teehankee retired on April 18, 1988,

Chief Justice Pedro Yap was appointed on the same day;

2. When Chief Justice Yap retired on July 1, 1988, Chief Justice

Marcelo Fernan was appointed on the same day;

3. When Chief Justice Fernan resigned on December 7, 1991, Chief

Justice Andres Narvasa was appointed the following day, December
8, 1991;

4. When Chief Justice Narvasa retired on November 29, 1998, Chief

Justice Hilario Davide, Jr. was sworn into office the following early
morning of November 30, 1998;

5. When Chief Justice Davide retired on December 19, 2005, Chief

Justice Artemio Panganiban was appointed the next day, December
20, 2005; and

6. When Chief Justice Panganiban retired on December 6, 2006, Chief

Justice Reynato S. Puno took his oath as Chief Justice
at midnight of December 6, 2006.[85]

III
Writ of mandamus does not lie against the JBC

May the JBC be compelled to submit the list of nominees to the President?

Mandamus shall issue when any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act that the law specifically enjoins as a
duty resulting from an office, trust, or station. [86] It is proper when the act against
which it is directed is one addressed to the discretion of the tribunal or
officer. Mandamus is not available to direct the exercise of a judgment or discretion
in a particular way.[87]

For mandamus to lie, the following requisites must be complied with: (a) the
plaintiff has a clear legal right to the act demanded; (b) it must be the duty of the
defendant to perform the act, because it is mandated by law; (c) the defendant
unlawfully neglects the performance of the duty enjoined by law; (d) the act to be
performed is ministerial, not discretionary; and (e) there is no appeal or any other
plain, speedy and adequate remedy in the ordinary course of law.

Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a list of
at least three nominees to the President for every vacancy in the Judiciary:

Section 8. xxx

(5) The Council shall have the principal function of

recommending appointees to the Judiciary. xxx

Section 9. The Members of the Supreme Court and judges of lower

courts shall be appointed by the President from a list of at least three
nominees prepared by the Judicial and Bar Council for every
vacancy. Such appointments need no confirmation.

For the lower courts, the President shall issue the appointments
within ninety days from the submission of the list.

However, Section 4(1) and Section 9, Article VIII, mandate the President to
fill the vacancy in the Supreme Court within 90 days from the occurrence of the
vacancy, and within 90 days from the submission of the list, in the case of the lower
courts. The 90-day period is directed at the President, not at the JBC. Thus, the JBC
should start the process of selecting the candidates to fill the vacancy in the Supreme
Court before the occurrence of the vacancy.

Under the Constitution, it is mandatory for the JBC to submit to the President
the list of nominees to fill a vacancy in the Supreme Court in order to enable the
President to appoint one of them within the 90-day period from the occurrence of the
vacancy. The JBC has no discretion to submit the list to the President after the
vacancy occurs, because that shortens the 90-day period allowed by the Constitution
for the President to make the appointment. For the JBC to do so will be
unconscionable on its part, considering that it will
thereby effectively and illegally deprive the President of the ample time granted
under the Constitution to reflect on the qualifications of the nominees named in the
list of the JBC before making the appointment.

The duty of the JBC to submit a list of nominees before the start of the
Presidents mandatory 90-day period to appoint is ministerial, but its selection of the
candidates whose names will be in the list to be submitted to the President lies within
the discretion of the JBC. The object of the petitions for mandamus herein should
only refer to the duty to submit to the President the list of nominees for every
vacancy in the Judiciary, because in order to constitute unlawful neglect of duty,
there must be an unjustified delay in performing that duty. [88] For mandamus to lie
against the JBC, therefore, there should be an unexplained delay on its part in
recommending nominees to the Judiciary, that is, in submitting the list to the
President.

The distinction between a ministerial act and a discretionary one has been
delineated in the following manner:

The distinction between a ministerial and discretionary act is well

delineated. A purely ministerial act or duty is one which an officer or
tribunal performs in a given state of facts, in a prescribed manner, in
obedience to the mandate of a legal authority, without regard to or
the exercise of his own judgment upon the propriety or impropriety
of the act done. If the law imposes a duty upon a public officer and
gives him the right to decide how or when the duty shall be performed,
such duty is discretionary and not ministerial. The duty is ministerial
only when the discharge of the same requires neither the exercise of
official discretion or judgment.[89]

Accordingly, we find no sufficient grounds to grant the petitions for mandamus and
to issue a writ of mandamus against the JBC. The actions for that purpose are
premature, because it is clear that the JBC still has until May 17, 2010, at the latest,
within which to submit the list of nominees to the President to fill the vacancy
created by the compulsory retirement of Chief Justice Puno.

IV
Writ of prohibition does not lie against the JBC

In light of the foregoing disquisitions, the conclusion is ineluctable that only

the President can appoint the Chief Justice. Hence, Sorianos petition for prohibition
in G.R. No. 191032, which proposes to prevent the JBC from intervening in the
process of nominating the successor of Chief Justice Puno, lacks merit.

On the other hand, the petition for prohibition in G.R. No. 191342 is similarly
devoid of merit. The challenge mounted against the composition of the JBC based
on the allegedly unconstitutional allocation of a vote each to the ex officio members
from the Senate and the House of Representatives, thereby prejudicing the chances
of some candidates for nomination by raising the minimum number of votes required
in accordance with the rules of the JBC, is not based on the petitioners actual interest,
because they have not alleged in their petition that they were nominated to the JBC
to fill some vacancies in the Judiciary. Thus, the petitioners lack locus standi on that
issue.
 WHEREFORE, the Court:

1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002
and G.R. No. 191149, and the petition for mandamus in G.R. No. 191057 for being
premature;

2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No.
191342 for lack of merit; and

3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the
Judicial and Bar Council:

(a) To resume its proceedings for the nomination of candidates to fill

the vacancy to be created by the compulsory retirement of Chief
Justice Reynato S. Puno by May 17, 2010;

(b) To prepare the short list of nominees for the position of Chief
Justice;

(c) To submit to the incumbent President the short list of nominees for
the position of Chief Justice on or before May 17, 2010; and

(d) To continue its proceedings for the nomination of candidates to fill

other vacancies in the Judiciary and submit to the President the short
list of nominees corresponding thereto in accordance with this
decision.

SO ORDERED.
 EN BANC

[A.M. No. 98-5-01-SC. November 9, 1998]

In Re Appointments dated March 30, 1998 of Hon. Mateo A. Valenzuela and

Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch
62, Bago City and of Branch 24, Cabanatuan City, respectively.

DECISION
NARVASA, CJ.:

The question presented for resolution in the administrative matter at bar is whether, during the
period of the ban on appointments imposed by Section 15, Article VII of the Constitution, the
President is nonetheless required to fill vacancies in the judiciary, in view of Sections 4(1) and 9
of Article VIII. A corollary question is whether he can make appointments to the judiciary during
the period of the ban in the interest of public service.
Resolution of the issues is needful; it will preclude a recurrence of any conflict in the matter
of nominations and appointments to the Judiciary - as that here involved - between the Chief
Executive, on the one hand, and on the other, the Supreme Court and the Judicial and Bar Council
over which the Court exercises general supervision and wields specific powers including the
assignment to it of other functions and duties in addition to its principal one of recommending
appointees to the Judiciary, and the determination of its Members' emoluments.[1]
I The Relevant Facts
The Resolution of the Court En Banc, handed down on May 14, 1998, sets out the relevant
facts and is for that reason hereunder reproduce in full.

Referred to the Court En Banc by the Chief Justice are the appointments signed by
His Excellency the President under the date of March 30, 1998 of Hon. Mateo A.
Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of
Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively. The
appointments were received at the Chief Justice's chambers on May 12, 1998. The
referral was made in view of the serious constitutional issue concerning said
appointments arising from the pertinent antecedents.

The issue was first ventilated at the meeting of the Judicial and Bar Council on March
9, 1998. The meeting had been called, according to the Chief Justice as Ex
Officio Chairman, to discuss the question raised by some sectors about the
"constitutionality of *** appointments" to the Court of Appeals, specifically, in light
of the forthcoming presidential elections. Attention was drawn to Section 15, Article
VII of the Constitution reading as follows:

"SEC 15. Two months immediately before the next presidential elections and up to
the end of his term, a President or Acting President shall not make appointments,
except temporary appointments to executive positions when continued vacancies
therein will prejudice public service or endanger public safety."

On the other hand, appointments to fill vacancies in the Supreme court during the
period mentioned in the provision just quoted could seemingly be justified by another
provision of the same Constitution. Section 4(1) of Article VIII which states:

"SEC 4 (1) The Supreme Court shall be composed of a Chief Justice and fourteen
Associate Justices. ***. Any vacancy shall be filled within ninety days from the
occurrence thereof."
Also pertinent although not specifically discussed is Section 9 of the same Article
VIII which provides that for the lower courts, the President shall issue the
appointments - from a list of at least three nominees prepared by the Council for every
vacancy - within ninety days from the submission of the list.

The view was then expressed by Senior associate Justice Florenz D. Regalado,
Consultant of the Council, who had been a member of the Committee of the Executive
Department and of the Committee on the Judicial Department of the 1986
Constitutional Commission, that on the basis of the Commission's records, the
election ban had no application to appointments to the Court of Appeals. Without any
extended discussion or any prior research and study on the part of the other Members
of the JBC, this hypothesis was accepted, and was then submitted to the President for
consideration, together with the Council's nominations for eight (8) vacancies in the
Court of Appeals.

On April 6, 1998 the Chief Justice received an official communication from the
Executive Secretary transmitting the appointments of eight (8) Associate Justices of
the Court of Appeals all of which had been duly signed on March 11, 1998 by His
Excellency, the President. In view of the fact that all the appointments had been
signed on March 11, 1998 - the day immediately before the commencement of the ban
on appointments imposed by Section 15, Article VII of the Constitution - which
impliedly but no less clearly indicated that the President's Office did not agree with
the hypothesis that appointments to the Judiciary were not covered by said ban, the
Chief Justice resolved to defer consideration of nominations for the vacancy in the
Supreme Court created by the retirement of Associate Justice Ricardo J. Francisco,
specially considering that the Court had scheduled sessions in Baguio City in April,
1998, that the legislature's representatives to the JBC were occupied with the
forthcoming elections, and that a member of the Council was going on a trip out of the
country.

On May 4, 1998, the Chief Justice received a letter from the President, addressed to
the JBC requesting transmission of the "list of final nominees" for the vacancy "no
later than Wednesday, May 6, 1998," in view of the duty imposed on him by the
Constitution "to fill up the vacancy *** within ninety (90) days from February 13,
1998, the date the present vacancy occurred."

On May 5, 1998, Secretary of Justice Silvestre Bello III requested the Chief Justice
for "guidance" respecting the expressed desire of the "regular members" of the JBC to
hold a meeting immediately to fill up the vacancy in the Court in line with the
President's letter of May 4. The Chief Justice advised Secretary Bello to await the
reply that he was drafting to the President's communication, a copy of which he would
give to the Secretary the following day.

On May 6, 1998 the Chief Justice sent his reply to the President. He began by stating
that no sessions had been scheduled for the Council after the May elections for the
reason that apparently the President's Office did not share the view posited by the JBC
that Section 15, Article VII of the Constitution had no application to JBC-
recommended appointments - the appointments to the Court of Appeals having been
all uniformly dated March 11, 1998, before the commencement of the prohibition in
said provision - thus giving rise to the "need to undertake further study of the matter,"
prescinding from "the desire to avoid any constitutional issue regarding the
appointment to the mentioned vacancy" and the further fact that "certain senior
members of the Court of Appeals *** (had) asked the Council to reopen the question
of their exclusion on account of age from such (final) list." He closed with the
assurance that the JBC expected to deliberate on the nominations "forthwith upon the
completion of the coming elections." The letter was delivered to Malacaang at about 5
o'clock in the afternoon of May 6, 1998, and a copy given to the Office of Justice
Secretary Bello shortly before that hour.

It would appear, however, that the Justice Secretary and the regular members of the
Council had already taken action without awaiting the Chief Justice's promised
response to the President's letter of May 4, 1998. On that day, May 6, 1998, they met
at some undisclosed place, deliberated, and came to an agreement on a resolution
which they caused to be reduced to writing and thereafter signed. In that two-page
Resolution they drew attention to Section 4 (1), Article VIII of the Constitution
(omitting any mention of Section 15, Article VII) as well as to the President's letter of
May 4 in which he "emphatically requested that the required list of final nominee be
submitted to him;" and pointing out that the "Council would be remiss in its duties"
should it fail to submit the nominations, closed with an appeal that the Chief Justice
convene the Council for the purpose "on May 7, 1998, at 2:00 o'clock in the
afternoon." This Resolution they transmitted to the Chief Justice together with their
letter, also dated May 6, in which they emphasized that "we are pressed for time"
again drawing attention to Section 4 (1). In Article VIII of the Constitution (and again
omitting any reference to Section 15, Article VII). They ended their letter with the
following intriguing paragraph:

"Should the Chief Justice be not disposed to call for the meeting aforesaid, the
undersigned members constituting the majority will be constrained to convene the
Council for the purpose of complying with its Constitutional mandate."

It seems evident, as just intimated, that the resolution and the covering letter were
deliberated on, prepared and signed hours before delivery of the Chief Justice's letter
to the President and the Justice Secretary.

Since the Members of the Council appeared determined to hold a meeting regardless
of the Chief Justice's wishes, the latter convoked the Council to a meeting at 3 o'clock
in the afternoon of May 7, 1998. Present at the meeting were Chief Justice, Secretary
Bello, ex officio member and the regular members of the Council; Justice Regino
Hermosisima, Atty. Teresita Cruz Sison, Judge Cesar C. Peralejo. Also present on the
invitation of the Chief Justice, were Justices Hilario G. Davide, Jr., Flerida Ruth P.
Romero, Josue N. Bellosillo, Reynato S. Puno, Jose C. Vitug, Vicente V. Mendoza,
Artemio V. Panganiban, Antonio M. Martinez, Leonardo A. Quisumbing and Fidel P.
Purisima. The Chief Justice reviewed the events leading to the session, and after
discussion, the body agreed to give the President time to answer the Chief Justice's
letter of May 6, 1998.

On May 7, 1998, the Chief Justice received a letter from His Excellency the President
in reply to his letter of May 6 (which the President said had been "received early this
morning"). The President expressed the view that "the election-ban provision (Article
VII, Sec. 15) *** applies only to executive appointments or appointments in the
executive branch of government," the whole article being "entitled 'EXECUTIVE
DEPARTMENT.'" He also observed that further proof of his theory "is the fact that
appointments to the judiciary have special, specific provisions applicable to them"
(citing Article VIII, Sec. 4 [1] and Article VIII, Section 9. In view thereof, he "firmly
and respectfully reiterate(d) *** (his) request for the Judicial and Bar Council to
transmit *** the final list of nominees for the lone Supreme Court vacancy."

The Chief Justice replied to the letter the following day, May 8, 1998. Since the Chief
Justice's letter explains the issue quite plainly, it is here quoted in full.

"Thank you for your letter of May 7, 1998, responding to my own communication of
May 6, 1998 which, I would like to say, reflects the collective sentiments of my
colleagues in the Supreme Court. Knowing how busy you are, I will deal straightaway
with the points set out in your letter.

The dating of the latest appointments to the Court of Appeals was adverted to merely
to explain how we in the Court and the JBC came to have the impression that you did
not share the view expressed in the JBC minutes of March 9, 1998 'that there is no
election ban with regard to the JBC appointments.' Be this as it may, the Court feels
that there is a serious question concerning the matter in light of the seemingly
inconsistent provisions of the Constitution. The first of these is Section 15, Article
VII, which reads:

'SEC. 15. Two months immediately before the next presidential elections and up to
the end of his term, a President or Acting President shall not make appointments,
except temporary appointments to executive positions when continued vacancies
therein will prejudice public service or endanger public safety.'

The second is Section 4(1) of Article VIII which states:

'SEC 4(1) The Supreme Court shall be composed of a Chief Justice and fourteen
Associate Justices. ***. Any vacancy shall be filled within ninety days from the
occurrence thereof.'

As you can see, Your Excellency, Section 15 of Article VII imposes a direct
prohibition on the President: he "shall not make appointments" within the period
mentioned, and since there is no specification of which appointments are proscribed,
the same may be considered as applying to all appointments of any kind and
nature. This is the general rule then, the only exception being only as regards
"executive positions" as to which "temporary appointments" may be made within the
interdicted period "when continued vacancies therein will prejudice public service or
endanger public safety." As the exception makes reference only to "executive"
positions, it would seem that "judicial" positions are covered by the general rule.

On the other hand, Section 4 (1) of Article VIII, requires that any vacancy in the
Supreme Court "shall be filled within ninety days from the occurrence
thereof." Unlike Section 15, Article VII, the duty of filling the vacancy is not
specifically imposed on the President; hence, it may be inferred that it is a duty shared
by the Judicial and Bar council and the President.

Now, in view of the general prohibition in the first-quoted provision, how is the
requirement of filling vacancies in the Court within ninety days to be construed? One
interpretation that immediately suggests itself is that Section 4(1), Article VIII is a
general provision while Section 15, Article VII is a particular one; that is to say,
normally, when there are no presidential elections - which after all occur only every
six years - Section 4(1), Article VIII shall apply: vacancies in the Supreme Court shall
be filled within 90 days; but when (as now) there are presidential elections, the
prohibition in Section 15, Article VII comes into play: the President shall not make
any appointments. The reason for said prohibition, according to Fr. J. Bernas, S.J., an
authority on Constitutional Law and himself a member of the Constitutional
Commission, is "(I)n order not to tie the hands of the incoming President through
midnight appointments." Another interpretation is that put forth in the Minutes of the
JBC Meeting of March 9, 1998.

I must emphasize that the validity of any appointment to the Supreme Court at this
time hinges on the correct interpretation of the foregoing sections of the
Constitution. On account of the importance of the question, I consulted the Court
about it but, as I stated in my letter of May 6, 1998, "it declined to take any position,
since obviously there had not been enough time to deliberate on the same ***
(although it) did agree that further study was necessary ***."

Since the question has actually come up, and its importance cannot be gainsaid, and it
is the Court that is empowered under the Constitution to make an authoritative
interpretation of its (provisions) or of those of any other law. I believe that the Court
may now perhaps consider the issue ripe for determination and come to grips with it,
to avoid any possible polemics concerning the matter. However the Court resolves the
issue, no serious prejudice will be done. Should the Court rule that the President is
indeed prohibited to make appointments in a presidential election year, then any
appointment attempted within the proscribed period would be void anyway. If the
Court should adjudge that the ban has no application to appointments to the Supreme
Court, the JBC may submit nominations and the President may make the appointment
forthwith upon such adjudgment.

The matter is a delicate one, quite obviously, and must thus be dealt with with utmost
circumspection, to avoid any question regarding the validity of an appointment to the
Court at this time, or any accusation of "midnight" appointments or rash, hasty action
on the part of the JBC or the President.

In view thereof, and upon the advice and consent of the Members of the Court, I am
requesting the regular Members of the Judicial and Bar Council to defer action on the
matter until further advice by the Court. I earnestly make the same request of you,
Your Excellency, I assure you, however, that as befits a matter in which the Chief
Executive has evinced much interest, my colleagues and I will give it preferential and
expeditious attention and consideration. To this end, I intend to convene the Court by
next week, at the latest."

On May 8, 1998, again on the insistence of the regular Members of the JBC, another
meeting was held at which were present the Chief Justice, the Secretary of Justice and
the three regular Members above mentioned, as well as Justices Hilario G. Davide, Jr.,
Flerida Ruth P. Romero, Josue N. Bellosillo, Reynato S. Puno, Jose C. Vitug,
Santiago M. Kapunan, Vicente V. Mendoza, Artemio V. Panganiban, Antonio M.
Martinez, Leonardo A. Quisumbing and Fidel P. Purisima. The meeting closed with a
resolution that "the constitutional provisions *** (in question) be referred to the
Supreme Court En Banc for appropriate action, together with the request that the
Supreme Court consider that the ninety-day period stated in Section 4 (1), Article VIII
be suspended or interrupted in view of the peculiar circumstances ***."

On May 12, 1998, the Chief Justice received from Malacaang the appointments of two
(2) Judges of the Regional Trial Court mentioned above. This places on the Chief
Justice the obligation of acting thereon; i.e., transmitting the appointments to the
appointees so that they might take their oaths and assume their duties of their
office. The trouble is that in doing so, the Chief Justice runs the risk of acting in a
manner inconsistent with the Constitution, for these appointments appear prima facie,
at least, to be expressly prohibited by Section 15, Article VII of the charter. This
circumstance, and the referral of the constitutional question to the Court in virtue of
the Resolution of May 8, 1998, supra, operate to raise a justiciable issue before the
Court, an issue of sufficient importance to warrant consideration and adjudication on
the merits.

Accordingly, the Court Resolved to (1) CONSIDER the case at bar an administrative
matter and cause it to be appropriately docketed; (2) to DIRECT the Clerk of Court to
immediately serve copies of this Resolution on (a) the Office of the President, (b) the
Office of the Solicitor General, (c) Hon. Mateo A. Valenzuela, and (d) Hon. Placido
B. Vallarta (at their addresses recorded in the Judicial and Bar Council); and (3) to
REQUIRE the Office of the President, the Office of the Solicitor General, Hon. Mateo
A. Valenzuela, and Hon. Placido B. Vallarta to file their comments on this Resolution
within fifteen (15) days from notice thereof.

The Court further Resolved that (1) pending the foregoing proceedings and the
deliberation by the Court on the matter, and until further orders, no action be taken on
the appointments of Hon. Valenzuela and Hon. Vallarta which in the meantime shall
be held in abeyance and not given any effect and said appointees shall refrain from
taking their oath of office; and that (2) exercising its power of supervision over the
Judicial and Bar Council, said Council and its ex officio and regular Members herein
mentioned be INSTRUCTED, as they are hereby INSTRUCTED, to defer all action
on the matter of nominations to fill up the lone vacancy in the Supreme Court or any
other vacancy until further orders.

SO ORDERED.

II The Relevant Pleadings

In compliance with the foregoing Resolution, the following pleadings and other documents
were filed, to wit:
1) the manifestation dated May 28, 1998 of Hon. Mateo A. Velenzuela in compliance with the
Resolution of May 14, 1998;
2) the letter dated June 1, 1998 of Hon. Placido B. Vallarta in compliance with the same
Resolution;
3) the "Comments" of Hon. Valenzuela dated May 25, 1998;
4) his "Addendum to Comments" dated June 8, 1998;
5) his "Explanation" dated June 8, 1998;
6) the letter of Hon. Vallarta dated June 8, 1998;
7) his letter dated June 16, 1998;
8) the "Explanation" of Hon. Valenzuela dated July 17, 1998; and
9) the "Comment" of the Office of the Solicitor General dated August 5, 1998.
A. Valenzuela's Assumption of Duty as Judge on May 14, 1998
In his Manifestation dated May 28, 1998, Judge Valenzuela alleged inter alia:

"***that on May 14, 1998, he took his Oath of Office as Judge, RTC Branch 62, Bago
City, before Hon. Anastacio C. Rufon, Judge RTC, Branch 52, Bacolod City, pursuant
to Appointment dated March 30, 1998, (and) he also reported for duty as such before
said RTC Branch 62, Bago City *** (and that he did so) "faultlessly," *** without
knowledge of the on-going deliberations on the matter."

At that time, the originals of the appointments of Messrs. Valenzuela and Vallarta, dated
March 30, 1998 - addressed to them "Thru: the Chief Justice, Supreme Court of the Philippines,
Manila." and which had been sent to and received by the Chief Justice on May 12, 1998[2] -- were
still in the latter's Office, and had not been transmitted to them precisely because of the serious
issue concerning the validity of their appointments. Indeed, one of the directives in the Resolution
of May 14, 1998 was that "pending *** deliberation by the Court on the matter, and until further
orders, no action be taken on the appointments *** which in the meantime shall be held in
abeyance and not given any effect ***." For this reason, by Resolution dated June 23, 1998, the
Court required Valenzuela to EXPLAIN by what authority he had taken his oath on May 14, 1998
as Judge of Branch 62 of the RTC at Bago City. In his "Explanation" dated July 17,
1998. Valenzuela stated that he did so because on May 7, 1998 he "received from Malacaang copy
of his appointment ***" which contained the following direction: "By virtue hereof, you may
qualify and enter upon the performance of the duties of the office***."
 The Court then deliberated on the pleadings and documents above mentioned, in relation to
the facts and circumstances on record, and thereafter Resolved to promulgate the following
opinion.
III The Relevant Constitutional Provisions
The provision of the Constitution material to the inquiry at bar read as follows:[3]
Section 15, Article VII:

"Two months immediately before the next presidential elections and up to the end of
his term, a President or Acting President shall not make appointments, except
temporary appointments to execute positions when continued vacancies therein will
prejudice public service or endanger public safety."

Section 4 (1), Article VIII:

"The Supreme Court shall be composed of a Chief Justice and fourteen Associate
Justices. It may sit en banc or in its discretion, in divisions of three, five, or seven
Members. Any vacancy shall be filled within ninety days from the occurrence
thereof."

Section 9, Article VIII:

"The Members of the Supreme Court and judges in lower courts shall be appointed by
the President from the list of at least three nominees prepared by the Judicial and Bar
Council for every vacancy. Such appointments need no confirmation.

For the lower courts, the President shall issue the appointments within ninety days
from the submission of the list."

IV The Court's View

The Court's view is that during the period stated in Section 15, Article VII of the Constitution
- "(t)wo months immediately before the next presidential elections and up to the end of his term"
- the President is neither required to make appointments to the courts nor allowed to do so; and
that Sections 4(1) and 9 of Article VIII simply mean that the President is required to fill vacancies
in the courts within the time frames provided therein unless prohibited by Section 15 of Article
VII. It is noteworthy that the prohibition on appointments comes into effect only once every six
years.
V Intent of the Constitutional Commission
The journal of the Commission which drew up the present Constitution discloses that the
original proposal was to have an eleven-member Supreme Court. Commissioner Eulogio Lerum
wanted to increase the number of Justices to fifteen. He also wished to ensure that that number
would not be reduced for any appreciable length of time (even only temporarily), and to this end
proposed that any vacancy "must be filled within two months from the date that the vacancy
occurs." His proposal to have a 15-member Court was not initially adopted. Persisting however in
his desire to make certain that the size of the Court would not be decreased for any substantial
period as a result of vacancies, Lerum proposed the insertion in the provision (anent the Court's
membership) of the same mandate that "IN CASE OF ANY VACANCY, THE SAME SHALL
BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE THEREOF." He later agreed to
suggestions to make the period three, instead of two, months. As thus amended, the proposal was
approved.[4] As it turned out, however, the Commission ultimately agreed on a fifteen-member
Court.[5] Thus it was that the section fixing the composition of the Supreme Court came to include
a command to fill up any vacancy therein within 90 days from its occurrence.
In this connection, it may be pointed out that that instruction that any "vacancy shall be filled
within ninety days" (in the last sentence of Section 4 (1) of Article VIII) contrasts with the
prohibition in Section 15, Article VII, which is couched in stronger negative language - that "a
President or Acting President shall not make appointments"
 The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now a
Member of this Court) to add to what is now Section 9 of Article VIII, the following
paragraph: "WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE
APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST" (of
nominees by the Judicial and Bar Council to the President).[6] Davide stated that his purpose was
to provide a "uniform rule" for lower courts. According to him, the 90-day period should be
counted from submission of the list of nominees to the President in view of the possibility that the
President might reject the list submitted to him and the JBC thus need more time to submit a new
one.[7]
On the other hand, Section 15, Article VII - which in effect deprives the President of his
appointing power "two months immediately before the next presidential elections up to the end
of his term" - was approved without discussion.
VI. Analysis of Provisions
Now, it appears that Section 15, Article VII is directed against two types of appointments: (1)
those made for buying votes and (2) those made for partisan considerations. The first refers to
those appointments made within the two months preceding a Presidential election and are similar
to those which are declared election offenses in the Omnibus Election Code, viz.:[8]

SEC. 261. Prohibited Acts. - The following shall be guilty of an election offense:

(a) Vote buying and vote selling - (1) Any person who gives, offers or promises
money or anything of value, gives or promises any office or employment, franchise or
grant, public or private, or makes or offers to make an expenditure, directly or
indirectly, or cause an expenditure to be made to any person, association, corporation,
entity, or community in order to induce anyone or the public in general to vote for or
against any candidate or withhold his vote in the election, or to vote for or against any
aspirant for the nomination of choice of a candidate in a convention or similar
selection process of a political party.

(g) Appointment of new employees, creation of new position, promotion, or giving

salary increases. - During the period of forty five days before a regular election and
thirty days before a special election, (1) any head, official or appointing officer of a
government office, agency or instrumentality whether national or local, including
government-owned or controlled corporations, who appoints or hires any new
employee, whether provisional, temporary, or casual, or creates and fills any new
position, except upon prior authority of the Commission. The Commission shall not
grant the authority sought unless, it is satisfied that the position to be filled is essential
to the proper functioning of the office or agency concerned, and that the position shall
not be filled in a manner that may influence the election.

The second type of appointments prohibited by Section 15, Article VII consists of the so-
called "midnight" appointments. In Aytona v. Castillo,[9] it was held that after the proclamation of
Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated in
his bid for reelection, became no more than a "caretaker" administrator whose duty was to "prepare
for the orderly transfer of authority to the incoming President." Said the Court:

"The filling up of vacancies in important positions, if few, and so spaced as to afford

some assurance of deliberate action and careful consideration of the need for the
appointment and appointee's qualifications may undoubtedly be permitted. But the
issuance of 350 appointments in one night and the planned induction of almost all of
them in a few hours before the inauguration of the new President may, with some
reason, be regarded by the latter as an abuse of Presidential prerogatives, the steps
taken being apparently a mere partisan effort to fill all vacant positions irrespective of
fitness and other conditions, and thereby to deprive the new administration of an
opportunity to make the corresponding appointments."
 As indicated, the Court recognized that there may well be appointments to important positions
which have to be made even after the proclamation of the new President. Such appointments, so
long as they are "few and so spaced as to afford some assurance of deliberate action and careful
consideration of the need for the appointment and the appointee's qualifications,"[10] can be made
by the outgoing President. Accordingly, several appointments made by President Garcia, which
were shown to have been well considered, were upheld.[11]
Section 15, Article VII has a broader scope than the Aytona ruling. It may not unreasonably
be deemed to contemplate not only "midnight" appointments - those made obviously for partisan
reasons as shown by their number and the time of their making - but also appointments presumed
made for the purpose of influencing the outcome of the Presidential election.
On the other hand, the exception in the same Section 15 of Article VII - allowing appointments
to be made during the period of the ban therein provided - is much narrower than that recognized
in Aytona. The exception allows only the making of temporary appointments to executivepositions
when continued vacancies will prejudice public service or endanger public safety. Obviously, the
article greatly restricts the appointing power of the President during the period of the ban.
Considering the respective reasons for the time frames for filling vacancies in the courts and
the restriction on the President's power of appointment, it is this Court's view that, as a general
proposition, in case of conflict, the former should yield to the latter. Surely, the prevention of vote-
buying and similar evils outweighs the need for avoiding delays in filling up of court vacancies or
the disposition of some cases. Temporary vacancies can abide the period of the ban which,
incidentally and as earlier pointed out, comes to exist only once in every six years. Moreover, those
occurring in the lower courts can be filled temporarily by designation. But prohibited appointments
are long-lasting and permanent in their effects. They may, as earlier pointed out, in fact influence
the results of elections and, for that reason, their making is considered an election offense.
To the contention that may perhaps be asserted, that Sections 4 (1) and 9 of Article VIII should
prevail over Section 15 of Article VII, because they may be considered later expressions of the
people when they adopted the Constitution, it suffices to point out that the Constitution must be
construed in its entirety as one, single, instrument.
To be sure, instances may be conceived of the imperative need for an appointment, during the
period of the ban, not only in the executive but also in the Supreme Court. This may be the case
should the membership of the court be so reduced that it will have no quorum or should the voting
on a particularly important question requiring expeditious resolution be evenly divided. Such a
case, however, is covered by neither Section 15 of Article VII nor Section 4 (1) and 9 of Article
VIII.[12]
VII. A Last Word
A final word, concerning Valenzuela's oath-taking and "reporting for duty" as Presiding Judge
of RTC Branch 62, Bago City, on May 14, 1998.[13] Standing practice is for the originals of all
appointments to the Judiciary - from the highest to the lowest courts - to be sent by the Office of
the President to the Office of the Chief Justice, the appointments being addressed to the appointees
"Thru: the Chief Justice, Supreme Court, Manila." It is a Clerk of Court of the Supreme Court, in
the Chief Justice's behalf, who thereafter advises the individual appointees of their appointments
and also of the date of commencement of the pre-requisite orientation seminar, to be conducted by
the Philippine Judicial Academy for new Judges. The rationale of this procedure is salutary and
readily perceived. The procedure ensures the authenticity of the appointments, enables the Court,
particularly of the Office of the Court Administrator, to enter in the appropriate records all
appointments to the Judiciary as well as other relevant data such as the dates of qualification, the
completion by the appointees of their pre-requisite orientation seminars, their assumption of duty,
etc.
The procedure also precludes the possibility, however remote, of Judges acting on spurious or
otherwise defective appointments. It is obviously not advisable, to say the least, for a Judge to take
his oath of office and enter upon the performance of his duties on the basis alone of a document
purporting to be a copy of his appointment coming from Malacaang, the authenticity of which has
not been verified from the latter of the Office of the Court Administrator; or otherwise to begin
performing his duties as Judge without the Court Administrator knowing of that fact. The
undesirability of such a situation is illustrated by the case of Judge Valenzuela who acted, with no
little impatience or rashness, on a mere copy of his supposed appointment, without having received
any formal notice from this Court, and without verifying the authenticity of the appointment or the
propriety of taking oath on the basis thereof. Had he bothered to inquire about his appointment
from the Court Administrator's Office, he would have been informed of the question concerning it
and the Court's injunction.
VIII. Conclusion
The appointments of Messrs. Valenzuela and Vallarta on March 30, 1998 (transmitted to the
Office of the Chief Justice on May 14, 1998) were unquestionably made during the period of the
ban. Consequently, they come within the operation of the first prohibition relating to appointments
which are considered to be for the purpose of buying votes or influencing the election. While the
filling of vacancies in the judiciary is undoubtedly in the public interest, there is no showing in
this case of any compelling reason to justify the making of the appointments during the period of
the ban. On the other hand, as already discussed, there is a strong public policy for the prohibition
against appointments made within the period of the ban.
In view of the foregoing considerations, the Court Resolved to DECLARE VOID the
appointments signed by His Excellency the President under date of March 30, 1998 of Hon. Mateo
A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62,
Bago City and of Branch 24, Cabanatuan City, respectively, and to order them, forthwith on being
served with notice of this decision, to forthwith CEASE AND DESIST from discharging the office
of Judge of the Courts to which they were respectively appointed on March 30, 1998. This, without
prejudice to their being considered anew by the Judicial and Bar Council for re-nomination to the
same positions.
IT IS SO ORDERED.
 SECOND DIVISION

MARIA VIRGINIA V. REMO, G.R. No. 169202

Petitioner,
Present:

CARPIO, J., Chairperson,

-versus- BRION,
DEL CASTILLO,
ABAD, and
PEREZ, JJ.
THE HONORABLE SECRETARY
OF FOREIGN AFFAIRS, Promulgated:
Respondent. March 5, 2010
x-----------------------------------------------------------------------------------------x

DECISION

CARPIO, J.:

The Case

Before the Court is a petition for review[1] of the 27 May 2005 Decision[2] and 2
August 2005 Resolution[3] of the Court of Appeals in CA-G.R. SP No. 87710. The
Court of Appeals affirmed the decision of the Office of the President, which in turn
affirmed the decision of the Secretary of Foreign Affairs denying petitioners request
to revert to the use of her maiden name in her replacement passport.

The Facts

Petitioner Maria Virginia V. Remo is a married Filipino citizen whose Philippine

passport was then expiring on 27 October 2000. Petitioner being married to
Francisco R. Rallonza, the following entries appear in her passport: Rallonza as her
surname, Maria Virginia as her given name, and Remo as her middle name. Prior to
the expiry of the validity of her passport, petitioner, whose marriage still subsists,
applied for the renewal of her passport with the Department of Foreign Affairs
(DFA) office in Chicago, Illinois, U.S.A., with a request to revert to her maiden
name and surname in the replacement passport.

Petitioners request having been denied, Atty. Manuel Joseph R. Bretana III,
representing petitioner, wrote then Secretary of Foreign Affairs Domingo Siason
expressing a similar request.
On 28 August 2000, the DFA, through Assistant Secretary Belen F. Anota, denied
the request, stating thus:

This has reference to your letter dated 17 August 2000 regarding one
Ms. Maria Virginia V. Remo who is applying for renewal of her
passport using her maiden name.

This Office is cognizant of the provision in the law that it is not obligatory for a
married woman to use her husbands name. Use of maiden name is allowed in
passport application only if the married name has not been used in previous
application. The Implementing Rules and Regulations for Philippine Passport Act of
1996 clearly defines the conditions when a woman applicant may revert to her maiden
name, that is, only in cases of annulment of marriage, divorce and death of the
husband. Ms. Remos case does not meet any of these conditions.[4] (Emphasis
supplied)

Petitioners motion for reconsideration of the above-letter resolution was denied in a

letter dated 13 October 2000.[5]
On 15 November 2000, petitioner filed an appeal with the Office of the President.

On 27 July 2004, the Office of the President dismissed the appeal[6] and ruled that
Section 5(d) of Republic Act No. 8239 (RA 8239) or the Philippine Passport Act
of 1996 offers no leeway for any other interpretation than that only in case of
divorce, annulment, or declaration [of nullity] of marriage may a married woman
revert to her maiden name for passport purposes. The Office of the President
further held that in case of conflict between a general and special law, the latter
will control the former regardless of the respective dates of passage. Since the
Civil Code is a general law, it should yield to RA 8239.

On 28 October 2004, the Office of the President denied the motion for
reconsideration.[7]

Petitioner filed with the Court of Appeals a petition for review under Rule 43 of
the Rules of Civil Procedure.

In its Decision of 27 May 2005, the Court of Appeals denied the petition and
affirmed the ruling of the Office of the President. The dispositive portion of the
Court of Appeals decision reads:

WHEREFORE, premises considered, the petition is DENIED, and the

resolution dated July 27, 2004, and the order dated October 28, 2004 of
the Office of the President in O.P. Case No. 001-A-9344 are hereby
AFFIRMED.

SO ORDERED.[8]
Petitioner moved for reconsideration which the Court of Appeals denied in its
Resolution dated 2 August 2005.

Hence, this petition.

The Court of Appeals Ruling

The Court of Appeals found no conflict between Article 370 of the Civil Code[9] and
Section 5(d) of RA 8239.[10] The Court of Appeals held that for passport application
and issuance purposes, RA 8239 limits the instances when a married woman
applicant may exercise the option to revert to the use of her maiden name such as in
a case of a divorce decree, annulment or declaration of nullity of marriage. Since
there was no showing that petitioner's marriage to Francisco Rallonza has been
annulled, declared void or a divorce decree has been granted to them, petitioner
cannot simply revert to her maiden name in the replacement passport after she had
adopted her husbands surname in her old passport. Hence, according to the Court of
Appeals, respondent was justified in refusing the request of petitioner to revert to
her maiden name in the replacement passport.

The Issue

The sole issue in this case is whether petitioner, who originally used her husbands
surname in her expired passport, can revert to the use of her maiden name in the
replacement passport, despite the subsistence of her marriage.

The Ruling of the Court

The petition lacks merit.

Title XIII of the Civil Code governs the use of surnames. In the case of a
married woman, Article 370 of the Civil Code provides:
ART. 370. A married woman may use:

(1) HER MAIDEN FIRST NAME AND SURNAME AND ADD HER
HUSBANDS SURNAME, OR
(2) HER MAIDEN FIRST NAME AND HER HUSBAND'S SURNAME,
OR
(3) HER HUSBANDS FULL NAME, BUT PREFIXING A
WORD INDICATING THAT SHE IS HIS WIFE, SUCH AS
MRS.

We agree with petitioner that the use of the word may in the above provision
indicates that the use of the husbands surname by the wife is permissive rather than
obligatory. This has been settled in the case of Yasin v. Honorable Judge Sharia
District Court.[11]

In Yasin,[12] petitioner therein filed with the Sharia District Court a Petition to resume
the use of maiden name in view of the dissolution of her marriage by divorce under
the Code of Muslim Personal Laws of the Philippines, and after marriage of her
former husband to another woman. In ruling in favor of petitioner therein, the Court
explained that:

When a woman marries a man, she need not apply and/or seek
judicial authority to use her husbands name by prefixing the word
Mrs. before her husbands full name or by adding her husbands
surname to her maiden first name. The law grants her such right (Art.
370, Civil Code). Similarly, when the marriage ties or vinculum no
longer exists as in the case of death of the husband or divorce as
authorized by the Muslim Code, the widow or divorcee need not seek
judicial confirmation of the change in her civil status in order to
revert to her maiden name as use of her former husbands is optional
and not obligatory for her (Tolentino, Civil Code, p. 725, 1983 ed.;
Art. 373, Civil Code). When petitioner married her husband, she did
not change her but only her civil status. Neither was she required to
secure judicial authority to use the surname of her husband after the
marriage as no law requires it. (Emphasis supplied)

Clearly, a married woman has an option, but not a duty, to use the surname of the
husband in any of the ways provided by Article 370 of the Civil Code. [13] She is
therefore allowed to use not only any of the three names provided in Article 370, but
also her maiden name upon marriage. She is not prohibited from continuously using
her maiden name once she is married because when a woman marries, she does not
change her name but only her civil status. Further, this interpretation is in
consonance with the principle that surnames indicate descent.[14]

In the present case, petitioner, whose marriage is still subsisting and who opted to
use her husbands surname in her old passport, requested to resume her maiden
name in the replacement passport arguing that no law prohibits her from using her
maiden name. Petitioner cites Yasin as the applicable precedent. However, Yasin is
not squarely in point with this case. Unlike in Yasin, which involved a Muslim
divorcee whose former husband is already married to another woman, petitioners
marriage remains subsisting. Another point, Yasin did not involve a request to
resume ones maiden name in a replacement passport, but a petition to resume ones
maiden name in view of the dissolution of ones marriage.

The law governing passport issuance is RA 8239 and the applicable provision in this
case is Section 5(d), which states:

Sec. 5. Requirements for the Issuance of Passport. No passport shall be

issued to an applicant unless the Secretary or his duly authorized
representative is satisfied that the applicant is a Filipino citizen who has
complied with the following requirements: x x x
 (D) IN CASE OF A WOMAN WHO IS MARRIED,
SEPARATED, DIVORCED OR WIDOWED OR WHOSE
MARRIAGE HAS BEEN ANNULLED OR DECLARED BY
COURT AS VOID, A COPY OF THE CERTIFICATE OF
MARRIAGE, COURT DECREE OF SEPARATION,
DIVORCE OR ANNULMENT OR CERTIFICATE OF
DEATH OF THE DECEASED SPOUSE DULY ISSUED
AND AUTHENTICATED BY THE OFFICE OF THE CIVIL
REGISTRAR GENERAL: PROVIDED, THAT IN CASE OF
A DIVORCE DECREE, ANNULMENT OR DECLARATION
OF MARRIAGE AS VOID, THE WOMAN APPLICANT
MAY REVERT TO THE USE OF HER MAIDEN NAME:
PROVIDED, FURTHER, THAT SUCH DIVORCE IS
RECOGNIZED UNDER EXISTING LAWS OF THE
PHILIPPINES; X X X (EMPHASIS SUPPLIED)

The Office of the Solicitor General (OSG), on behalf of the Secretary of Foreign
Affairs, argues that the highlighted proviso in Section 5(d) of RA 8239 limits the
instances when a married woman may be allowed to revert to the use of her maiden
name in her passport. These instances are death of husband, divorce decree,
annulment or nullity of marriage. Significantly, Section 1, Article 12 of the
Implementing Rules and Regulations of RA 8239 provides:

The passport can be amended only in the following cases:

A) AMENDMENT OF WOMANS NAME DUE TO MARRIAGE;

B) AMENDMENT OF WOMANS NAME DUE TO DEATH OF SPOUSE,
ANNULMENT OF MARRIAGE OR DIVORCE INITIATED BY A FOREIGN
SPOUSE; OR
C) CHANGE OF SURNAME OF A CHILD WHO IS LEGITIMATED
BY VIRTUE OF A SUBSEQUENT MARRIAGE OF HIS
PARENTS.

Since petitioners marriage to her husband subsists, placing her case outside of
the purview of Section 5(d) of RA 8239 (as to the instances when a married woman
may revert to the use of her maiden name), she may not resume her maiden name in
the replacement passport.[15] This prohibition, according to petitioner, conflicts with
and, thus, operates as an implied repeal of Article 370 of the Civil Code.

PETITIONER IS MISTAKEN. THE CONFLICT BETWEEN ARTICLE 370 OF

THE CIVIL CODE AND SECTION 5(D) OF RA 8239 IS MORE IMAGINED
THAN REAL. RA 8239, INCLUDING ITS IMPLEMENTING RULES AND
REGULATIONS, DOES NOT PROHIBIT A MARRIED WOMAN FROM
USING HER MAIDEN NAME IN HER PASSPORT. IN FACT, IN
RECOGNITION OF THIS RIGHT, THE DFA ALLOWS A MARRIED WOMAN
WHO APPLIES FOR A PASSPORT FOR THE FIRST TIME TO USE HER
MAIDEN NAME. SUCH AN APPLICANT IS NOT REQUIRED TO ADOPT
HER HUSBAND'S SURNAME.[16]
In the case of renewal of passport, a married woman may either adopt her husbands
surname or continuously use her maiden name. If she chooses to adopt her
husbands surname in her new passport, the DFA additionally requires the
submission of an authenticated copy of the marriage certificate. Otherwise, if she
prefers to continue using her maiden name, she may still do so. The DFA will not
prohibit her from continuously using her maiden name.[17]

HOWEVER, ONCE A MARRIED WOMAN OPTED TO ADOPT HER

HUSBANDS SURNAME IN HER PASSPORT, SHE MAY NOT REVERT TO
THE USE OF HER MAIDEN NAME, EXCEPT IN THE CASES ENUMERATED
IN SECTION 5(D) OF RA 8239. THESE INSTANCES ARE: (1) DEATH OF
HUSBAND, (2) DIVORCE, (3) ANNULMENT, OR (4) NULLITY OF
MARRIAGE. SINCE PETITIONERS MARRIAGE TO HER HUSBAND
SUBSISTS, SHE MAY NOT RESUME HER MAIDEN NAME IN THE
REPLACEMENT PASSPORT. OTHERWISE STATED, A MARRIED
WOMAN'S REVERSION TO THE USE OF HER MAIDEN NAME MUST BE
BASED ONLY ON THE SEVERANCE OF THE MARRIAGE.

EVEN ASSUMING RA 8239 CONFLICTS WITH THE CIVIL CODE, THE

PROVISIONS OF RA 8239 WHICH IS A SPECIAL LAW SPECIFICALLY
DEALING WITH PASSPORT ISSUANCE MUST PREVAIL OVER THE
PROVISIONS OF TITLE XIII OF THE CIVIL CODE WHICH IS THE GENERAL
LAW ON THE USE OF SURNAMES. A BASIC TENET IN STATUTORY
CONSTRUCTION IS THAT A SPECIAL LAW PREVAILS OVER A GENERAL
LAW,[18] THUS:

[I]t is a familiar rule of statutory construction that to the extent of

any necessary repugnancy between a general and a special law or
provision, the latter will control the former without regard to the
respective dates of passage.[19]

Moreover, petitioners theory of implied repeal must fail. Well-entrenched is the rule
that an implied repeal is disfavored. T he apparently conflicting provisions of a law
or two laws should be harmonized as much as possible, so that each shall be
effective.[20] For a law to operate to repeal another law, the two laws must actually
be inconsistent. The former must be so repugnant as to be irreconcilable with the
latter act.[21] This petitioner failed to establish.

The Court notes that petitioner would not have encountered any problems in the
replacement passport had she opted to continuously and consistently use her maiden
name from the moment she was married and from the time she first applied for a
Philippine passport. However, petitioner consciously chose to use her husbands
surname before, in her previous passport application, and now desires to resume her
maiden name. If we allow petitioners present request, definitely nothing prevents her
in the future from requesting to revert to the use of her husbands surname. Such
unjustified changes in one's name and identity in a passport, which is considered
superior to all other official documents,[22] cannot be countenanced. Otherwise,
undue confusion and inconsistency in the records of passport holders will arise.
Thus, for passport issuance purposes, a married woman, such as petitioner, whose
marriage subsists, may not change her family name at will.

THE ACQUISITION OF A PHILIPPINE PASSPORT IS A PRIVILEGE. THE

LAW RECOGNIZES THE PASSPORT APPLICANTS CONSTITUTIONAL
RIGHT TO TRAVEL. HOWEVER, THE STATE IS ALSO MANDATED TO
PROTECT AND MAINTAIN THE INTEGRITY AND CREDIBILITY OF THE
PASSPORT AND TRAVEL DOCUMENTS PROCEEDING FROM
IT[23] AS A PHILIPPINE PASSPORT REMAINS AT ALL TIMES THE
PROPERTY OF THE GOVERNMENT. THE HOLDER IS MERELY A
POSSESSOR OF THE PASSPORT AS LONG AS IT IS VALID AND THE
SAME MAY NOT BE SURRENDERED TO ANY PERSON OR ENTITY
OTHER THAN THE GOVERNMENT OR ITS REPRESENTATIVE.[24]

As the OSG correctly pointed out:

[T]he issuance of passports is impressed with public interest. A passport

is an official document of identity and nationality issued to a person
intending to travel or sojourn in foreign countries. It is issued by the
Philippine government to its citizens requesting other governments to
allow its holder to pass safely and freely, and in case of need, to give
him/her aid and protection. x x x

Viewed in the light of the foregoing, it is within respondents competence to regulate

any amendments intended to be made therein, including the denial of unreasonable
and whimsical requests for amendments such as in the instant case.[25]

WHEREFORE, we DENY the petition. We AFFIRM the 27 May 2005 Decision

and 2 August 2005 Resolution of the Court of Appeals in CA-G.R. SP No. 87710.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 200334 July 30, 2014

THE PEOPLE OF THE PHILIPPINES, Respondent-Appellee,

vs.
VICTOR COGAED y ROMANA, Accused-Appellant.

DECISION

LEONEN, J.:

The mantle of protection upon one's person and one's effects through Article III, Section 2 of the
Constitution is essential to allow citizens to evolve their autonomy and, hence, to avail themselves of
their right to privacy. The alleged compromise with the battle against dangerous drugs is more
apparent than real. Often, the compromise is there because law enforcers neglect to perform what
could have been done to uphold the Constitution as they pursue those who traffic this scourge of
society.

Squarely raised in· this appeal1 is the admissibility of the evidence seized as a result of a warrantless
arrest. The police officers identified the alleged perpetrator through facts that were not based on
their personal knowledge. The information as to the accused’s whereabouts was sent through a text
message. The accusedwho never acted suspicious was identified by a driver. The bag that allegedly
contained the contraband was required to be opened under intimidating circumstances and without
the accused having been fully apprised of his rights. This was not a reasonable search within the
meaning of the Constitution. There was no reasonable suspicion that would allow a legitimate "stop
and frisk" action. The alleged waiver of rights by the accused was not done intelligently, knowingly,
and without improper pressure or coercion.

The evidence, therefore, used against the accused should be excluded consistent with Article III,
Section 3 (2) of the Constitution. There being no possible admissible evidence, the accused should
be acquitted.

According to the prosecution, at about 6:00 a.m. of November 25, 2005, Police Senior Inspector
Sofronio Bayan (PSI Bayan) of the San Gabriel Police Station in San Gabriel,La Union, "received a
text message from an unidentified civilian informer"2 that one Marvin Buya (also known as Marvin
Bugat) "[would]be transporting marijuana"3 from Barangay LunOy, San Gabriel, La Union to the
Poblacion of San Gabriel, La Union.4

PSI Bayan organized checkpoints in order "to intercept the suspect."5 PSI Bayan ordered SPO1
Jaime Taracatac, Jr. (SPO1 Taracatac), a member of the San Gabriel Police, to set up a checkpoint
in the waiting area of passengers from San Gabriel bound for San Fernando City.6 A passenger
jeepney from Barangay Lun-Oy arrived at SPO1 Taracatac’s checkpoint.7 The jeepney driver
disembarked and signalled to SPO1 Taracatac indicating the two male passengers who were
carrying marijuana.8 SPO1 Taracatac approached the two male passengers who were later identified
as Victor RomanaCogaed and Santiago Sacpa Dayao.9 Cogaed was carrying a blue bag and a sack
while Dayao was holding a yellow bag.10

SPO1 Taracatac asked Cogaed and Dayao about the contents of their bags.11 Cogaed and Dayao
told SPO1 Taracatac that they did not know since they were transporting the bags as a favor for their
barriomatenamed Marvin.12 After this exchange, Cogaed opened the blue bag, revealing three bricks
of what looked like marijuana.13Cogaed then muttered, "nagloko daytoy nga Marvinen, kastoymet
gayam ti nagyanna,"which translates to "Marvin is a fool, this is what [is] contained in the
bag."14 "SPO1 Taracatac arrested [Cogaed] and . . . Dayao and brought them to the police
station."15 Cogaed and Dayao "were still carrying their respective bags"16 inside the station.17

While at the police station, the Chief of Police and Investigator PO3 Stanley Campit (PO3 Campit)
requested Cogaed and Dayao to empty their bags.18 Inside Cogaed’s sack was "four (4) rolled pieces
of suspected marijuana fruiting tops,"19 and inside Dayao’s yellow bag was a brick of suspected
marijuana.20
PO3 Campit prepared the suspected marijuana for laboratory testing.21 PSI Bayan personally
delivered the suspected marijuana to the PNP Crime Laboratory.22 Forensic Chemical Officer Police
Inspector Valeriano Panem Laya II performed the tests and found that the objects obtained were
indeed marijuana.23 The marijuana collected from Cogaed’s blue bag had a total weight of 8,091.5
grams.24 The marijuana from Cogaed’s sack weighed 4,246.1 grams.25 The marijuana collected from
Dayao’s bag weighed 5,092 grams.26 A total of 17,429.6 grams werecollected from Cogaed’s and
Dayao’s bags.27

According to Cogaed’s testimony during trial, he was at Balbalayan, La Union, "waiting for a jeepney
to take him"28to the Poblacion of San Gabriel so he could buy pesticide.29 He boarded a jeepney and
recognized Dayao, his younger brother’s friend.30 Upon arrival at the Poblacion of San Gabriel,
Dayao and Cogaed alighted from the jeepney.31 Dayao allegedly "asked for [Cogaed’s] help in
carrying his things, which included a travelling bag and a sack."32 Cogaed agreed because they were
both going to the market.33 This was when SPO1 Taracatac approached them, and when SPO1
Taracatac asked Cogaed what was inside the bags, Cogaed replied that he did not know.34SPO1
Taracatac then talked to Dayao, however, Cogaed was not privy to their conversation.35 Thereafter,
SPO1 Taracatac arrested Dayao and Cogaed and brought them to the police station.36 These facts
were corroborated by an eyewitness,Teodoro Nalpu-ot, who was standing across the parking lot
where Cogaed was apprehended.37

At the police station, Cogaed said that "SPO1 Taracatac hit [him] on the head."38 The bags were also
opened, but Cogaed never knew what was inside.39

It was only later when Cogaed learned that it was marijuana when he and Dayao were charged with
illegal possession of dangerous drugs under Republic Act No. 9165.40 The information against them
states:

That on or about the 25th day of November, 2005, in the Municipality of San Gabriel, Province of La
Union, and within the jurisdiction of this Honorable Court, the above-named accused VICTOR
COGAED Y ROMANA and SANTIAGO DAYAO Y SACPA (who acted with discernment) and JOHN
DOE,conspiring, confederating and mutually helping one another, did then there wilfully, unlawfully,
feloniously and knowingly, without being authorized by law, have in their control, custody and
possession dried marijuana, a dangerous drug, with a total weight of seventeen thousand,four
hundred twenty-nine and sixtenths (17, 429.6) grams.

CONTRARY TO Section 11 (Possession of Dangerous Drugs), Article II, of Republic Act No. 9165
(otherwise known as the "Comprehensive Dangerous Drugs Act of 2002").41

The case was raffled to Regional Trial Court, Branch 28 of San Fernando City, La Union.42 Cogaed
and Dayao pleaded not guilty.43 The case was dismissed against Dayao because he was only 14
years old at that time and was exempt from criminal liability under the Juvenile Justice and Welfare
Act of 2006 or Republic Act No. 9344.44 Trial against Cogaed ensued. In a decision45 dated May 21,
2008, the Regional Trial Court found Cogaed guilty. The dispositive portion of the decision states:

WHEREFORE, the Court finds accused Victor Cogaed y Romana GUILTY beyond reasonable doubt
for Violation of Section 11, Article II of Republic Act No. 9165 (otherwise known as the
"Comprehensive Dangerous Drugs Act of 2002") and sentences him to suffer life imprisonment, and
to pay a fine of one million pesos (Php 1,000,000.00).46

The trial court judge initiallyfound Cogaed’s arrest illegal considering that "Cogaed at that time was
not, at the moment of his arrest, committing a crime nor was shown that hewas about to do so or
that had just done so. He just alighted from the passenger jeepney and there was no outward
indication that called for his arrest."47 Since the arrest was illegal, the warrantless search should also
be considered illegal.48 However, the trial court stated that notwithstanding the illegality of the arrest,
Cogaed "waived his right to object to such irregularity"49 when "he did not protest when SPO1
Taracatac, after identifying himself, asked him to open his bag."50

Cogaed appealed51 the trial court’s decision.However, the Court of Appeals denied his appeal and
affirmed the trial court’s decision.52 The Court of Appeals found that Cogaed waived his right against
warrantless searches when "[w]ithout any prompting from SPO1 Taracatac, [he] voluntarily opened
his bag."53 Hence, this appeal was filed.

The following errors were assigned by Cogaed in his appellant’s brief:

THE TRIAL COURT GRAVELY ERRED IN ADMITTING THE SEIZED DANGEROUS DRUGS AS
EVIDENCE AGAINST THE ACCUSED-APPELLANT DESPITE BEING THE RESULT OF AN
UNLAWFUL WARRANTLESS SEARCH AND SEIZURE.
 II

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE

THE ARRESTING OFFICER’S NON-COMPLIANCE WITH THE REQUIREMENTS FOR THE
PROPER CUSTODY OF SEIZED DANGEROUS DRUGS UNDER REPUBLIC ACT NO. 9165.

III

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE

THE ARRESTING OFFICER’S FAILURE TO PRESERVE THE INTEGRITY AND EVIDENTIARY
VALUE OF THE SEIZED DANGEROUS DRUGS.54

For our consideration are the following issues: (1) whether there was a valid search and seizure of
marijuana as against the appellant; (2) whether the evidence obtained through the search should be
admitted; and (3) whether there was enough evidence to sustain the conviction of the accused.

In view of the disposition of this case, we deem that a discussion with respect to the requirements on
the chain of custody of dangerous drugs unnecessary.55

We find for the accused.

II

The right to privacy is a fundamental right enshrined by implication in our Constitution. It has many
dimensions. One of its dimensions is its protection through the prohibition of unreasonable searches
and seizures in Article III, Section 2 of the Constitution:

The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be
determinedpersonally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to be searched and the
persons or things to be seized.

This provision requires that the court examine with care and diligence whether searches and
seizures are "reasonable." As a general rule, searches conducted with a warrant that meets all the
requirements of this provision are reasonable. This warrant requires the existence of probable cause
that can only be determined by a judge.56The existence of probable cause must be established by
the judge after asking searching questions and answers.57Probable cause at this stage can only exist
if there is an offense alleged to be committed. Also, the warrant frames the searches done by the
law enforcers. There must be a particular description of the place and the things to be searched.58

However, there are instances when searches are reasonable even when warrantless.59 In the Rules
of Court, searchesincidental to lawful arrests are allowed even without a separate warrant.60 This
court has taken into account the "uniqueness of circumstances involved including the purpose of the
search or seizure, the presence or absence of probable cause, the manner in which the search and
seizure was made, the place or thing searched, and the character of the articles procured."61 The
known jurisprudential instances of reasonable warrantless searches and seizures are:

1. Warrantless search incidental to a lawful arrest. . . ;

2. Seizure of evidence in "plain view," . . . ;

3. Search of a moving vehicle. Highly regulated by the government, the vehicle’s inherent
mobility reduces expectation of privacy especially when its transit in public thoroughfares
furnishes a highly reasonable suspicion amounting to probable cause that the occupant
committed a criminal activity;

4. Consentedwarrantless search;

5. Customs search;

6. Stop and frisk; and

7. Exigent and emergency circumstances.62 (Citations omitted)

III
One of these jurisprudential exceptionsto search warrants is "stop and frisk". "Stop and frisk"
searches are often confused with searches incidental to lawful arrests under the Rules of
Court.63 Searches incidental to a lawful arrest require that a crime be committed in flagrante delicto,
and the search conducted within the vicinity and withinreach by the person arrested is done to
ensure that there are no weapons, as well as to preserve the evidence.64

On the other hand, "stop and frisk"searches are conducted to prevent the occurrence of a crime. For
instance, the search in Posadas v. Court of Appeals65 was similar "to a ‘stop and frisk’ situation
whose object is either to determine the identity of a suspicious individual or to maintain the status
quomomentarily while the police officer seeks to obtain more information."66 This court stated that the
"stop and frisk" search should be used "[w]hen dealing with a rapidly unfolding and potentially
criminal situation in the city streets where unarguably there is no time to secure . . . a search
warrant."67

The search involved in this case was initially a "stop and frisk" search, but it did not comply with all
the requirements of reasonability required by the Constitution.

"Stop and frisk" searches (sometimes referred to as Terrysearches68) are necessary for law
enforcement. That is, law enforcers should be given the legal arsenal to prevent the commission of
offenses. However, this should be balanced with the need to protect the privacy of citizens in
accordance with Article III, Section 2 of the Constitution.

The balance lies in the concept of"suspiciousness" present in the situation where the police officer
finds himself or herself in. This may be undoubtedly based on the experience ofthe police officer.
Experienced police officers have personal experience dealing with criminals and criminal behavior.
Hence, they should have the ability to discern — based on facts that they themselves observe —
whether an individual is acting in a suspicious manner. Clearly, a basic criterion would be that the
police officer, with his or her personal knowledge, must observe the facts leading to the suspicion of
an illicit act.

In Manalili v. Court of Appeals,69 the police officers were initially informed about a place frequented
by people abusing drugs.70 When they arrived, one of the police officers saw a man with "reddish
eyes and [who was] walking in a swaying manner."71 The suspicion increased when the man avoided
the police officers.72 These observations led the police officers to conclude that the man was high on
drugs.73 These were sufficient facts observed by the police officers "to stop[the] petitioner [and]
investigate."74

In People v. Solayao,75 police officers noticed a man who appeared drunk.76 This man was also
"wearing a camouflage uniform or a jungle suit."77 Upon seeing the police, the man fled.78 His flight
added to the suspicion.79After stopping him, the police officers found an unlicensed "homemade
firearm"80 in his possession.81 This court ruled that "[u]nder the circumstances, the government
agents could not possibly have procured a search warrant first."82 This was also a valid search.

In these cases, the police officers using their senses observed facts that led to the suspicion. Seeing
a man with reddish eyes and walking in a swaying manner, based on their experience, is indicative
of a person who uses dangerous and illicit drugs. A drunk civilian in guerrilla wear is probably hiding
something as well.

The case of Cogaed was different. He was simply a passenger carrying a bag and traveling aboarda
jeepney. There was nothing suspicious, moreover, criminal, about riding a jeepney or carrying a bag.
The assessment of suspicion was not made by the police officer but by the jeepney driver. It was the
driver who signalled to the police that Cogaed was "suspicious."

This is supported by the testimony of SPO1 Taracatac himself:

COURT:

Q So you don’t know what was the content while it was still being carried by him in the passenger
jeep?

WITNESS:

A Not yet, Your Honor.83

SPO1 Taracatac likewise stated:

COURT:
Q If the driver did not make a gesture pointing to the accused, did you have reason to believe that
the accused were carrying marijuana?

WITNESS:

A No, Your Honor.84

The jeepney driver had to point toCogaed. He would not have been identified by the police officers
otherwise.

It is the police officer who should observe facts that would lead to a reasonable degree of suspicion
of a person. The police officer should not adopt the suspicion initiated by another person. This is
necessary to justify that the person suspected be stopped and reasonably searched.85 Anything less
than this would be an infringementupon one’s basic right to security of one’s person and effects.

IV

Normally, "stop and frisk" searches do not give the law enforcer an opportunity to confer with a judge
to determine probable cause. In Posadas v. Court of Appeals,86 one of the earliest cases adopting
the "stop and frisk" doctrine in Philippine jurisprudence, this court approximatedthe suspicious
circumstances as probable cause:

The probable causeis that when the petitioner acted suspiciously and attempted to flee with the buri
bag there was a probable cause that he was concealing something illegal in the bag and it was the
right and duty of the police officers to inspect the same.87 (Emphasis supplied)

For warrantless searches, probable cause was defined as "a reasonable ground of
suspicionsupported by circumstances sufficiently strong in themselves to warrant a cautious man to
believe that the person accused is guilty of the offense with which he is charged."88

Malacat v. Court of Appeals89 clarifies the requirement further. It does not have to be probable
cause,but it cannot be mere suspicion.90 It has to be a "genuine reason"91 to serve the purposes of
the "stop and frisk" exception:92

Other notable points of Terryare that while probable cause is not required to conduct a "stop and
frisk," it nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A
genuine reason must exist, in light of the police officer’s experience and surrounding conditions, to
warrant the belief that the person detained has weapons concealed about him.93 (Emphasis supplied,
footnotes omitted)

In his dissent for Esquillo v. People,94 Justice Bersamin reminds us that police officers must not rely
on a single suspicious circumstance.95 There should be "presence of more than oneseemingly
innocent activity, which, taken together, warranted a reasonable inference of criminal activity."96 The
Constitution prohibits "unreasonable searches and seizures."97 Certainly, reliance on only one
suspicious circumstance or none at all will not result in a reasonable search.98

There was not a single suspicious circumstance in this case, and there was no approximation for the
probable cause requirement for warrantless arrest. The person searched was noteven the person
mentioned by the informant. The informant gave the name of Marvin Buya, and the person searched
was Victor Cogaed. Even if it was true that Cogaed responded by saying that he was transporting
the bag to Marvin Buya, this still remained only as one circumstance. This should not have been
enough reason to search Cogaed and his belongings without a valid search warrant.

Police officers cannot justify unbridled searches and be shielded by this exception, unless there is
compliance with the "genuine reason" requirement and that the search serves the purpose of
protecting the public. As stated in Malacat:

[A] "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective crime prevention
and detection, which underlies the recognition that a police officer may, under appropriate
circumstances and in an appropriate manner, approach a person for purposes of investigating
possible criminal behavior even without probable cause; and (2) the more pressing interest of safety
and self-preservationwhich permit the police officer to take steps to assure himself that the person
with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used
against the police officer.99 (Emphasis supplied)
The "stop and frisk" searchwas originally limited to outer clothing and for the purpose of detecting
dangerous weapons.100 As in Manalili,101 jurisprudence also allows "stop and frisk" for cases involving
dangerous drugs.

The circumstances of thiscase are analogous to People v. Aruta.102 In that case, an informant told the
police that a certain "Aling Rosa" would be bringing in drugs from Baguio City by bus.103 At the bus
terminal, the police officers prepared themselves.104 The informant pointed at a woman crossing the
street105 and identified her as "Aling Rosa."106 The police apprehended "Aling Rosa," and they alleged
that she allowed them to look inside her bag.107The bag contained marijuana leaves.108

In Aruta, this court found that the search and seizure conducted was illegal.109 There were no
suspicious circumstances that preceded Aruta’s arrest and the subsequent search and seizure.110 It
was only the informant that prompted the police to apprehend her.111 The evidence obtained was not
admissible because of the illegal search.112Consequently, Aruta was acquitted.113

Arutais almost identical to this case, except that it was the jeepney driver, not the police’s informant,
who informed the police that Cogaed was "suspicious."

The facts in Arutaare also similar to the facts in People v. Aminnudin.114 Here, the National Bureau
ofInvestigation (NBI) acted upon a tip, naming Aminnudin as somebody possessing drugs.115 The NBI
waited for the vessel to arrive and accosted Aminnudin while he was disembarking from a
boat.116 Like in the case at bar, the NBI inspected Aminnudin’s bag and found bundles of what
turnedout to be marijuana leaves.117 The court declared that the searchand seizure was
illegal.118 Aminnudin was acquitted.119

People v. Chua120 also presents almost the same circumstances. In this case, the police had been
receiving information that the accused was distributing drugs in "different karaoke bars in Angeles
City."121 One night, the police received information that thisdrug dealer would be dealing drugs at the
Thunder Inn Hotel so they conducted a stakeout.122 A car "arrived and parked"123 at the hotel.124The
informant told the police that the man parked at the hotel was dealing drugs.125 The man alighted
from his car.126 He was carrying a juice box.127 The police immediately apprehended him and
discovered live ammunition and drugs in his person and in the juice box he was holding.128

Like in Aruta, this court did not find anything unusual or suspicious about Chua’s situation when the
police apprehended him and ruled that "[t]here was no valid‘stop-and-frisk’."129

VI

None of the other exceptions to warrantless searches exist to allow the evidence to be
admissible.The facts of this case do not qualify as a search incidental to a lawful arrest.

Rule 126, Section 13 of the Rules of Court allows for searches incidental to a lawful arrest. For there
to be a lawful arrest, there should be either a warrant of arrest or a lawful warrantless arrest as
enumerated in Rule 113, Section 5 of the Rules of Court:

Section 5. Arrest without warrant; when lawful. – A peace officer or a private person may, withouta
warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while his
case is pending, or has escaped while being transferred from one confinement to another.

The apprehension of Cogaed was not effected with a warrant of arrest. None of the instances
enumerated in Rule 113, Section 5 of the Rules of Court were present whenthe arrest was made. At
the time of his apprehension, Cogaed has not committed, was not committing, or was about to
commit a crime. As in People v. Chua, for a warrantless arrest of in flagrante delictoto be affected,
"two elements must concur: (1) the person to bearrested must execute anovert act indicating that he
has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act
is done inthe presence or within the view of the arresting officer."130 Both elements were missing
when Cogaed was arrested.131 There were no overt acts within plain view of the police officers that
suggested that Cogaed was in possession of drugs at that time.
Also, Cogaed was not an escapee prisoner that time; hence, he could not have qualified for the last
allowable warrantless arrest.

VII

There can be no valid waiver of Cogaed’s constitutional rights even if we assume that he did not
object when the police asked him to open his bags. As this court previously stated:

Appellant’s silence should not be lightly taken as consent to such search. The implied acquiescence
to the search, if there was any, could not have been more than mere passive conformity given under
intimidating or coercive circumstances and is thus considered no consent at all within the purview of
the constitutional guarantee.132(Citations omitted) Cogaed’s silence or lack of aggressive objection
was a natural reaction to a coercive environment brought about by the police officer’s excessive
intrusion into his private space. The prosecution and the police carry the burden of showing that the
waiver of a constitutional right is one which is knowing, intelligent, and free from any coercion. In all
cases, such waivers are not to be presumed.

The coercive atmosphere created by the presence of the police officer can be discerned again from
the testimony of SPO1 Taracatac during cross-examination:

ATTY. BINWAG:

Q Now, Mr. witness, you claimed that you only asked them what are the contents of their bags, is it
not?

WITNESS:

A Yes, ma’am.

Q And then without hesitation and voluntarily they just opened their bags, is it not?

A Yes, ma’am.

Q So that there was not any order from you for them to open the bags?

A None, ma’am.

Q Now, Mr. witness when you went near them and asked them what were the contents ofthe bag,
you have not seen any signs of hesitation or fright from them, is it not?

A It seems they were frightened, ma’am.

Q But you actually [claimed] that there was not any hesitation from them in opening the bags, is it
not?

A Yes, ma’am but when I went near them it seems that they were surprised.133 (Emphasis supplied)

The state of mind of Cogaed was further clarified with SPO1 Taracatac’s responses to Judge
Florendo’s questions:

COURT:

....

Q Did you have eye contact with Cogaed?

A When I [sic] was alighting from the jeepney, Your Honor I observed that he was somewhat
frightened. He was a little apprehensive and when he was already stepping down and he put down
1âwphi 1

the bag I asked him, "what’s that," and he answered, "I don’t know because Marvin only asked me to
carry."134

For a valid waiver by the accused of his or her constitutional right, it is not sufficient that the police
officerintroduce himself or herself, or be known as a police officer. The police officer must also
1âw phi 1

inform the person to be searched that any inaction on his orher part will amount to a waiver of any of
his or her objections that the circumstances do not amount to a reasonable search. The police officer
must communicate this clearly and in a language known to the person who is about to waive his or
her constitutional rights. There must be anassurance given to the police officer that the accused fully
understands his or her rights. The fundamental nature of a person’s constitutional right to privacy
requires no less.

VIII
The Constitution provides:

Any evidence obtained in violation of [the right against unreasonable searches and seizures] shall be
inadmissible for any purpose in any proceeding.135

Otherwise known as the exclusionary rule or the fruit of the poisonous tree doctrine, this
constitutional provision originated from Stonehill v. Diokno.136 This rule prohibits the issuance of
general warrants that encourage law enforcers to go on fishing expeditions. Evidence obtained
through unlawful seizures should be excluded as evidence because it is "the only practical means of
enforcing the constitutional injunction against unreasonable searches and seizures."137 It ensures that
the fundamental rights to one’s person, houses, papers, and effects are not lightly infringed upon
and are upheld.

Considering that the prosecution and conviction of Cogaed were founded on the search of his bags,
a pronouncement of the illegality of that search means that there is no evidence left to convict
Cogaed.

Drugs and its illegal traffic are a scourgeto our society. In the fight to eradicate this menace, law
enforcers should be equipped with the resources to be able to perform their duties better. However,
we cannot, in any way, compromise our society’s fundamental values enshrined in our Constitution.
Otherwise, we will be seen as slowlydismantling the very foundations of the society that we seek to
protect.

WHEREFORE, the decisions of the Regional Trial Court, Branch 28, San Fernando City, La Union
and of the Court of Appeals in CA-G.R. CR-HC No. 03394 are hereby REVERSEDand SET ASIDE.
For lack of evidence to establish his guilt beyond reasonable doubt, accused-appellant VICTOR
COGAED Y ROMANA is hereby ACQUITTED and ordered RELEASED from confinement unless he
is being heldfor some other legal grounds. No costs.

SO ORDERED.
G.R. No. 150224 May 19, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
JOEL YATAR alias "KAWIT", appellant.

DECISION

PER CURIAM:

On automatic review is a Decision of the Regional Trial Court of Bulanao, Tabuk, Kalinga, Branch
25, sentencing appellant Joel Yatar alias "Kawit" to Death for the special complex crime of Rape with
Homicide, and ordering him to pay the heirs of the victim, Kathylyn D. Uba, civil indemnity in the
amount of P75,000.00, moral damages in the amount of P200,000.00, exemplary damages in the
amount of P50,000.00, actual damages in the amount of P186,410.00, or total damages amounting
to P511,410.00, and costs of litigation.1

Appellant was charged with Rape with Homicide under the following Information:

That on or about the afternoon of June 30, 1998 at Liwan West, Rizal, Kalinga, and within
the jurisdiction of this Honorable Court, the accused, in order to have carnal knowledge of a
certain KATHYLYN D. UBA, did then and there wilfully, unlawfully, and feloniously, and with
use of a bladed weapon stab the latter inflicting upon her fatal injuries resulting in the death
of the victim, and on the occasion or by reason thereof, accused, wilfully, unlawfully and
feloniously, and by means of force and violence had carnal knowledge of said Kathlyn D.
Uba against her will.

CONTRARY TO LAW.2

The facts are:

On June 30, 1998, at 8:30 a.m., Judilyn Pas-a and her first cousin, seventeen year old
Kathylyn Uba, were on the ground floor of the house of their grandmother, Isabel Dawang, in
Liwan West, Rizal, Kalinga. They were talking about the letter sent by their aunt, Luz Yatar,
to her husband, appellant Joel Yatar, through Kathylyn’s friend, Cecil Casingan. Kathylyn
handed the letter to appellant earlier that morning.3

At 9:00 a.m. of the same day, Judilyn and her husband, together with Isabel Dawang, left for their
farm in Nagbitayan some two kilometers away. Before Judilyn and her husband departed, Kathylyn
told Judilyn that she intended to go to Tuguegarao, but in the event she would not be able to leave,
she would just stay home and wash her clothes or go to the house of their aunt, Anita Wania.
Kathylyn was left alone in the house.4

Later, at 10:00 a.m., Anita Wania and fifteen year old Beverly Deneng stopped by the house of
Isabel. They saw appellant at the back of the house. They went inside the house through the back
door of the kitchen to have a drink of water. Anita asked appellant what he was doing there, and he
replied that he was getting lumber to bring to the house of his mother.5

At 12:30 p.m., while Judilyn was on her way home from Nagbitayan, she saw appellant descend the
ladder from the second floor of the house of Isabel Dawang and run towards the back of the
house.6 She later noticed appellant, who was wearing a white shirt with collar and black pants,
pacing back and forth at the back of the house. She did not find this unusual as appellant and his
wife used to live in the house of Isabel Dawang.7

At 1:30 p.m., Judilyn again saw appellant when he called her near her house. This time, he was
wearing a black shirt without collar and blue pants. Appellant told her that he would not be getting
the lumber he had stacked, and that Isabel could use it. She noticed that appellant’s eyes were
"reddish and sharp." Appellant asked her where her husband was as he had something important to
tell him. Judilyn’s husband then arrived and appellant immediately left and went towards the back of
the house of Isabel.8

In the evening of the same day, Isabel Dawang arrived home and found that the lights in her house
were off. She called out for her granddaughter, Kathylyn Uba. The door to the ground floor was
open. She noticed that the water container she asked Kathylyn to fill up earlier that day was still
empty. She went up the ladder to the second floor of the house to see if Kathylyn was upstairs. She
found that the door was tied with a rope, so she went down to get a knife. While she groped in the
dark, she felt a lifeless body that was cold and rigid.9

Isabel moved her hand throughout the entire body. She found out that it was the naked body of her
granddaughter, Kathylyn. She called for help. Judilyn and her husband arrived. Isabel was given a
flashlight by Judilyn. She focused the beam and saw Kathylyn sprawled on the floor naked, with her
intestines protruding out of her stomach. Meanwhile, neighbors had arrived to offer assistance. A
daughter of Isabel, Cion, called the police.10

At 9:00 that evening, SP04 Melchor Faniswa received a report that a dead woman was found in
Isabel Dawang’s house. Together with fellow police officers, Faniswa went to the house and found
the naked body of Kathylyn Uba with multiple stab wounds.

The people in the vicinity informed the police officers that appellant was seen going down the ladder
of the house of Isabel Dawang at approximately 12:30 p.m.

The police discovered the victim’s panties, brassiere, denim pants, bag and sandals beside her
naked cadaver at the scene of the crime, and they found a dirty white shirt splattered with blood
within 50 meters from the house of Isabel.

When questioned by the police authorities, appellant denied any knowledge of Kathylyns’s
death,11 however, he was placed under police custody.

On July 3, 1998, appellant asked the police officers if he could relieve himself. Police Officer Cesar
Abagan accompanied him to the toilet around seven to ten meters away from the police station.
They suddenly heard someone shout in the Ilocano dialect, "Nagtaray!" (He’s running away!). Police
Officer Orlando Manuel exited through the gate of the Police Station and saw appellant running
away. Appellant was approximately 70 meters away from the station when Police Officer Abagan
recaptured him.12 He was charged with Rape with Homicide. When he was arraigned on July 21,
1998, appellant pleaded "not guilty."

After trial, appellant was convicted of the crime of Rape with Homicide, defined and penalized under
Article 266-A of the Revised Penal Code, as amended by R.A. 8353, otherwise known as the Anti-
Rape Law of 1997, and was accordingly, sentenced to Death.

Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as amended. In his
Brief, appellant assigns the following errors:

THE TRIAL COURT GRAVELY ERRED IN GIVING MUCH WEIGHT TO THE EVIDENCE
PRESENTED BY THE PROSECUTION NOTWITHSTANDING THEIR DOUBTFULNESS.

II

THE TRIAL COURT SERIOUSLY ERRED IN NOT ACQUITTING THE ACCUSED-

APPELLANT OF THE SERIOUS CRIME CHARGED DUE TO REASONABLE DOUBT.

Appellant’s contentions are unmeritorious.

The issue regarding the credibility of the prosecution witnesses should be resolved against
appellant. This Court will not interfere with the judgment of the trial court in determining the credibility
of witnesses unless there appears in the record some fact or circumstance of weight and influence
which has been overlooked or the significance of which has been misinterpreted.13 Well-entrenched
is the rule that the findings of the trial court on credibility of witnesses are entitled to great weight on
appeal unless cogent reasons are presented necessitating a reexamination if not the disturbance of
the same; the reason being that the former is in a better and unique position of hearing first hand the
witnesses and observing their deportment, conduct and attitude.14 Absent any showing that the trial
judge overlooked, misunderstood, or misapplied some facts or circumstances of weight which would
affect the result of the case, the trial judge’s assessment of credibility deserves the appellate court’s
highest respect.15 Where there is nothing to show that the witnesses for the prosecution were
actuated by improper motive, their testimonies are entitled to full faith and credit.16

The weight of the prosecution’s evidence must be appreciated in light of the well-settled rule which
provides that an accused can be convicted even if no eyewitness is available, as long as sufficient
circumstantial evidence is presented by the prosecution to prove beyond doubt that the accused
committed the crime.17
Reference to the records will show that a total of eleven (11) wounds, six (6) stab and five (5)
incised, were found on the victim’s abdomen and back, causing a portion of her small intestines to
spill out of her body.18 Rigor mortis of the vicitm’s body was complete when Dr. Bartolo examined the
victim at 9:00 a.m. on July 1, 1998. According to him, the time of death may be approximated from
between nine (9) to twelve (12) hours prior to the completion of rigor mortis.19 In other words, the
estimated time of death was sometime between 9:00 a.m. to 12:00 p.m. on June 30, 1998. This was
within the timeframe within which the lone presence of appellant lurking in the house of Isabel
Dawang was testified to by witnesses.

It should also be noted that, although the Postmortem Report by the attending physician, Dr. Pej
Evan C. Bartolo, indicates that no hymenal lacerations, contusions or hematoma were noted on the
victim,20 Dr. Bartolo discovered the presence of semen in the vaginal canal of the victim. During his
testimony, Dr. Bartolo stated that the introduction of semen into the vaginal canal could only be done
through sexual intercourse with the victim.21 In addition, it is apparent from the pictures submitted by
the prosecution that the sexual violation of the victim was manifested by a bruise and some swelling
in her right forearm indicating resistance to the appellant’s assault on her virtue.22

Significantly, subsequent testing showed that the Deoxyribonucleic acid (DNA) of the sperm
specimen from the vagina of the victim was identical the semen to be that of appellant’s gene type.

DNA is a molecule that encodes the genetic information in all living organisms.23 A person’s DNA is
the same in each cell and it does not change throughout a person’s lifetime; the DNA in a person’s
blood is the same as the DNA found in his saliva, sweat, bone, the root and shaft of hair, earwax,
mucus, urine, skin tissue, and vaginal and rectal cells.24 Most importantly, because of polymorphisms
in human genetic structure, no two individuals have the same DNA, with the notable exception of
identical twins.25

DNA print or identification technology has been advanced as a uniquely effective means to link a
suspect to a crime, or to exonerate a wrongly accused suspect, where biological evidence has been
left. For purposes of criminal investigation, DNA identification is a fertile source of both inculpatory
and exculpatory evidence. It can assist immensely in effecting a more accurate account of the crime
committed, efficiently facilitating the conviction of the guilty, securing the acquittal of the innocent,
and ensuring the proper administration of justice in every case.

DNA evidence collected from a crime scene can link a suspect to a crime or eliminate one from
suspicion in the same principle as fingerprints are used.26 Incidents involving sexual assault would
leave biological evidence such as hair, skin tissue, semen, blood, or saliva which can be left on the
victim’s body or at the crime scene. Hair and fiber from clothing, carpets, bedding, or furniture could
also be transferred to the victim’s body during the assault.27Forensic DNA evidence is helpful in
proving that there was physical contact between an assailant and a victim. If properly collected from
the victim, crime scene or assailant, DNA can be compared with known samples to place the
suspect at the scene of the crime.28

The U.P. National Science Research Institute (NSRI), which conducted the DNA tests in this case,
used the Polymerase chain reaction (PCR) amplification method by Short Tandem Repeat (STR)
analysis. With PCR testing, tiny amounts of a specific DNA sequence can be copied exponentially
within hours. Thus, getting sufficient DNA for analysis has become much easier since it became
possible to reliably amplify small samples using the PCR method.

In assessing the probative value of DNA evidence, courts should consider, inter alia, the following
factors: how the samples were collected, how they were handled, the possibility of contamination of
the samples, the procedure followed in analyzing the samples, whether the proper standards and
procedures were followed in conducting the tests, and the qualification of the analyst who conducted
the tests.29

In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the prosecution as
an expert witness on DNA print or identification techniques.30 Based on Dr. de Ungria’s testimony, it
was determined that the gene type and DNA profile of appellant are identical to that of the extracts
subject of examination.31 The blood sample taken from the appellant showed that he was of the
following gene types: vWA 15/19, TH01 7/8, DHFRP2 9/10 and CSF1PO 10/11, which are identical
with semen taken from the victim’s vaginal canal.32 Verily, a DNA match exists between the semen
found in the victim and the blood sample given by the appellant in open court during the course of
the trial.

Admittedly, we are just beginning to integrate these advances in science and technology in the
Philippine criminal justice system, so we must be cautious as we traverse these relatively uncharted
waters. Fortunately, we can benefit from the wealth of persuasive jurisprudence that has developed
in other jurisdictions. Specifically, the prevailing doctrine in the U.S. has proven instructive.
In Daubert v. Merrell Dow,33 it was ruled that pertinent evidence based on scientifically valid
principles could be used as long as it was relevant and reliable. Judges, under Daubert, were
allowed greater discretion over which testimony they would allow at trial, including the introduction of
new kinds of scientific techniques. DNA typing is one such novel procedure.

Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce belief
in its existence or non-existence.34 Applying the Daubert test to the case at bar, the DNA evidence
obtained through PCR testing and utilizing STR analysis, and which was appreciated by the court a
quo is relevant and reliable since it is reasonably based on scientifically valid principles of human
genetics and molecular biology.

Independently of the physical evidence of appellant’s semen found in the victim’s vaginal canal, the
trial court appreciated the following circumstantial evidence as being sufficient to sustain a conviction
beyond reasonable doubt: (1) Appellant and his wife were living in the house of Isabel Dawang
together with the victim, Kathylyn Uba; (2) In June 1998, appellant’s wife left the house because of
their frequent quarrels; (3) Appellant received from the victim, Kathylyn Uba, a letter from his
estranged wife in the early morning on June 30, 1998; (4) Appellant was seen by Apolonia Wania
and Beverly Denneng at 1:00 p.m. of June 30, 1998 near the kitchen of the house of Isabel Dawang,
acting strangely and wearing a dirty white shirt with collar; (5) Judilyn Pas-a saw appellant going
down the ladder of the house of Isabel at 12:30 p.m., wearing a dirty white shirt, and again at 1:30
p.m., this time wearing a black shirt; (6) Appellant hurriedly left when the husband of Judilyn Pas-a
was approaching; (7) Salmalina Tandagan saw appellant in a dirty white shirt coming down the
ladder of the house of Isabel on the day Kathylyn Uba was found dead; (8) The door leading to the
second floor of the house of Isabel Dawang was tied by a rope; (9) The victim, Kathylyn Uba, lay
naked in a pool of blood with her intestines protruding from her body on the second floor of the
house of Isabel Dawang, with her stained pants, bra, underwear and shoes scattered along the
periphery; (10) Laboratory examination revealed sperm in the victim’s vagina (Exhibit "H" and "J");
(11) The stained or dirty white shirt found in the crime scene was found to be positive with blood;
(12) DNA of slide, Exhibit "J" and "H", compared with the DNA profile of the appellant are identical;
and (13) Appellant escaped two days after he was detained but was subsequently apprehended,
such flight being indicative of guilt.35

Circumstantial evidence, to be sufficient to warrant a conviction, must form an unbroken chain which
leads to a fair and reasonable conclusion that the accused, to the exclusion of others, is the
perpetrator of the crime. To determine whether there is sufficient circumstantial evidence, three
requisites must concur: (1) there is more than one circumstance; (2) facts on which the inferences
are derived are proven; and (3) the combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.36

In an attempt to exclude the DNA evidence, the appellant contends that the blood sample taken from
him as well as the DNA tests were conducted in violation of his right to remain silent as well as his
right against self-incrimination under Secs. 12 and 17 of Art. III of the Constitution.

This contention is untenable. The kernel of the right is not against all compulsion, but against
testimonial compulsion.37 The right against self- incrimination is simply against the legal process of
extracting from the lips of the accused an admission of guilt. It does not apply where the evidence
sought to be excluded is not an incrimination but as part of object evidence.

We ruled in People v. Rondero38 that although accused-appellant insisted that hair samples were
forcibly taken from him and submitted to the National Bureau of Investigation for forensic
examination, the hair samples may be admitted in evidence against him, for what is proscribed is the
use of testimonial compulsion or any evidence communicative in nature acquired from the accused
under duress.

Hence, a person may be compelled to submit to fingerprinting, photographing, paraffin, blood and
DNA, as there is no testimonial compulsion involved. Under People v. Gallarde,39 where immediately
after the incident, the police authorities took pictures of the accused without the presence of counsel,
we ruled that there was no violation of the right against self-incrimination. The accused may be
compelled to submit to a physical examination to determine his involvement in an offense of which
he is accused.

It must also be noted that appellant in this case submitted himself for blood sampling which was
conducted in open court on March 30, 2000, in the presence of counsel.

Appellant further argues that the DNA tests conducted by the prosecution against him are
unconstitutional on the ground that resort thereto is tantamount to the application of an ex-post
facto law.
This argument is specious. No ex-post facto law is involved in the case at bar. The science of DNA
typing involves the admissibility, relevance and reliability of the evidence obtained under the Rules of
Court. Whereas an ex-post facto law refers primarily to a question of law, DNA profiling requires a
factual determination of the probative weight of the evidence presented.

Appellant’s twin defense of denial and alibi cannot be sustained. The forensic DNA evidence and
bloodied shirt, notwithstanding the eyewitness accounts of his presence at Isabel Dawang’s house
during the time when the crime was committed, undeniably link him to the June 30, 1998 incident.
Appellant did not demonstrate with clear and convincing evidence an impossibility to be in two
places at the same time, especially in this case where the two places are located in the same
barangay.40 He lives within a one hundred (100) meter radius from the scene of the crime, and
requires a mere five minute walk to reach one house from the other. This fact severely weakens
his alibi.

As to the second assignment of error, appellant asserts that the court a quo committed reversible
error in convicting him of the crime charged. He alleges that he should be acquitted on reasonable
doubt.

Appellant’s assertion cannot be sustained.

Generally, courts should only consider and rely upon duly established evidence and never on mere
conjectures or suppositions. The legal relevancy of evidence denotes "something more than a
minimum of probative value," suggesting that such evidentiary relevance must contain a "plus
value."41 This may be necessary to preclude the trial court from being satisfied by matters of slight
value, capable of being exaggerated by prejudice and hasty conclusions. Evidence without "plus
value" may be logically relevant but not legally sufficient to convict. It is incumbent upon the trial
court to balance the probative value of such evidence against the likely harm that would result from
its admission.

The judgment in a criminal case can be upheld only when there is relevant evidence from which the
court can properly find or infer that the accused is guilty beyond reasonable doubt. Proof beyond
reasonable doubt requires moral certainty of guilt in order to sustain a conviction. Moral certainty is
that degree of certainty that convinces and directs the understanding and satisfies the reason and
judgment of those who are bound to act conscientiously upon it. It is certainty beyond reasonable
doubt.42 This requires that the circumstances, taken together, should be of a conclusive nature and
tendency; leading, on the whole, to a satisfactory conclusion that the accused, and no one else,
committed the offense charged.43 In view of the totality of evidence appreciated thus far, we rule that
the present case passes the test of moral certainty.

However, as a matter of procedure, and for the purpose of meeting the requirement of proof beyond
reasonable doubt, motive is essential for conviction when there is doubt as to the identity of the
culprit.44

Pertinently, it must be noted that Judilyn Pas-a, first cousin of the victim, testified that she last saw
the victim alive in the morning of June 30, 1998 at the house of Isabel Dawang.45 She witnessed the
appellant running down the stairs of Isabel’s house and proceeding to the back of the same
house.46 She also testified that a few days before the victim was raped and killed, the latter revealed
to her that "Joel Yatar attempted to rape her after she came from the school."47 The victim told
Judilyn about the incident or attempt of the appellant to rape her five days before her naked and
violated body was found dead in her grandmother’s house on June 25, 1998.48 In addition, Judilyn
also testified that when her auntie Luz Dawang Yatar, wife of appellant, separated from her
husband, "this Joel Yatar threatened to kill our family."49 According to Judilyn, who was personally
present during an argument between her aunt and the appellant, the exact words uttered by
appellant to his wife in the Ilocano dialect was, "If you leave me, I will kill all your family and your
relatives x x x."50 These statements were not contradicted by appellant.

Thus, appellant’s motive to sexually assault and kill the victim was evident in the instant case. It is a
rule in criminal law that motive, being a state of mind, is established by the testimony of witnesses
on the acts or statements of the accused before or immediately after the commission of the offense,
deeds or words that may express it or from which his motive or reason for committing it may be
inferred.51

Accordingly, we are convinced that the appellant is guilty beyond reasonable doubt of the special
complex crime of rape with homicide. Appellant sexually assaulted Kathylyn Uba, and by reason or
on the occasion thereof, in order to conceal his lustful deed, permanently sealed the victim’s lips by
stabbing her repeatedly, thereby causing her untimely demise.

The following are the elements constitutive of rape with homicide: (1) the appellant had carnal
knowledge of a woman; (2) carnal knowledge of a woman was achieved by means of force, threat or
intimidation; and (3) by reason or on the occasion of such carnal knowledge by means of force,
threat or intimidation, appellant killed the woman.52However, in rape committed by close kin, such as
the victim’s father, step-father, uncle, or the common-law spouse of her mother, it is not necessary
that actual force or intimidation be employed.53 Moral influence or ascendancy takes the place of
violence and intimidation.54 The fact that the victim’s hymen is intact does not negate a finding that
rape was committed as mere entry by the penis into the lips of the female genital organ, even
without rupture or laceration of the hymen, suffices for conviction of rape.55 The strength and
dilatability of the hymen are invariable; it may be so elastic as to stretch without laceration during
intercourse. Absence of hymenal lacerations does not disprove sexual abuse especially when the
victim is of tender age.56

In the case at bar, appellant is the husband of the victim’s aunt. He is seven years older than the
victim Kathylyn Uba. Before he and his wife separated, appellant lived in the house of his mother-in-
law, together with the victim and his wife. After the separation, appellant moved to the house of his
parents, approximately one hundred (100) meters from his mother-in-law’s house. Being a relative
by affinity within the third civil degree, he is deemed in legal contemplation to have moral
ascendancy over the victim.

Under Article 266-B of the Revised Penal Code, the penalty of death is imposed when by reason or
on the occasion of the rape, homicide is committed. Although three (3) Justices of this Court
maintain their position that R.A. 7659 is unconstitutional insofar as it prescribes the death penalty,
they nevertheless submit to the ruling of the majority that the law is not unconstitutional, and that the
death penalty can be lawfully imposed in the case at bar.

As to damages, civil indemnity ex delicto of P100,000.00,57 actual damages incurred by the family of
the victim that have been proved at the trial amounting to P93,190.00,58 and moral damages of
P75,000.0059 should be awarded in the light of prevailing law and jurisprudence. Exemplary
damages cannot be awarded as part of the civil liability since the crime was not committed with one
or more aggravating circumstances.60

WHEREFORE, in view of the foregoing, the Decision of the RTC of Bulanao, Tabuk, Kalinga, Branch
25 in Criminal Case No. 35-98, sentencing appellant Joel Yatar alias "Kawit" to Death for the special
complex crime of Rape with Homicide is AFFIRMED with the MODIFICATION that he
be ORDERED to pay the family of the victim Kathylyn Uba civil indemnity ex delicto in the amount of
P100,000.00, P93,190.00 in actual damages and P75,000.00 in moral damages. The award of
exemplary damages is DELETED.

Upon the finality of this Decision and in accordance with Art. 83 of the Revised Penal Code, as
amended by Sec. 25 of Rep. Act No. 7659, let the records of this case be forthwith forwarded to the
President of the Philippines for the possible exercise of the pardoning power.

Costs de oficio.

SO ORDERED.
 SPOUSES OMAR and MOSHIERA G.R. No. 177809
LATIP,
Petitioners, Present:

CARPIO MORALES, J.,

CHICO-NAZARIO,
Acting Chairperson,
- versus - NACHURA,
PERALTA, and
ABAD, JJ.

Promulgated:
ROSALIE PALAA CHUA,
Respondent. October 16, 2009

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

DECISION

NACHURA, J.:

Challenged in this petition for review on certiorari is the Court of Appeals (CA)
Decision in CA-G.R. SP No. 89300:[1] (1) reversing the decision of the Regional
Trial Court (RTC), Branch 274, Paraaque City in Civil Case No. 04-0052;[2] and (2)
reinstating and affirming in toto the decision of the Metropolitan Trial Court
(MeTC), Branch 78, of the same city in Civil Case No. 2001-315.[3]

First, we sift through the varying facts found by the different lower courts.

The facts parleyed by the MeTC show that respondent Rosalie Chua (Rosalie)
is the owner of Roferxane Building, a commercial building, located at No. 158
Quirino Avenue corner Redemptorist Road, Barangay Baclaran, Paraaque City.

On July 6, 2001, Rosalie filed a complaint for unlawful detainer plus damages
against petitioners, Spouses Omar and Moshiera Latip (Spouses Latip). Rosalie
attached to the complaint a contract of lease over two cubicles in Roferxane Bldg.,
signed by Rosalie, as lessor, and by Spouses Latip, as lessees thereof.

The contract of lease reads:

CONTRACT OF LEASE

KNOW ALL MEN BY THESE PRESENTS:

This Contract of Lease is entered into by and between:

ROSALIE PALAA CHUA, Filipino, of legal age, married with office at
2/F JOFERXAN Building, F.B. Harrison St., Brgy.
Baclaran, Paraaque City, and hereinafter referred to as the LESSOR,

- and -

OMAR LATIEF marriage to MOSHIERA LATIEF, also both Filipino,

of legal age with address at 24 Anahan St. RGV Homes Paraaque City,
and hereinafter referred to as the LESSEES.

WITNESSETH

1. That the LESSOR is the owner of the commercial building erected at

the lot of the Toribio G. Reyes Realty, Inc. situated at 158 Quirino
Ave. corner Redemptorist Road, Barangay Baclaran in Paraaque Ctiy;

2. That LESSOR hereby leases two (2) cubicles located at the 1st &
2nd Floor, of said building with an area of 56 square meters under the
following terms and conditions, to wit:

a. That the monthly rental of the two (2) cubicles in

PESOS, SIXTY THOUSAND (P60,000.00), Philippine
Currency. However, due to unstable power of the peso LESSEES
agrees to a yearly increase of ten (10%) percent of the monthly
rental;

b. That any rental in-arrears shall be paid before the expiration

of the contract to the LESSOR;

c. That LESSEES agree to pay their own water and

electric consumptions in the said premises;

d. That the LESSEES shall not sub-let or make any alteration in the
cubicles without a written permission from the LESSOR. Provided,
however, that at the termination of the Contract, the lessee shall
return the two cubicles in its original conditions at their expenses;

e. That the LESSEES agree to keep the cubicles in a safe

and sanitary conditions, and shall not keep any kinds of
flammable or combustible materials.

f. That in case the LESSEES fail to pay the monthly rental

every time it falls due or violate any of the above conditions shall
be enough ground to terminate this Contract of
Lease. Provided, further, that, if the LESSEES pre-terminate this
Contract they shall pay the rentals for the unused month or period
by way of liquidated damages in favor of the LESSOR.

3. That this Contract of Lease is for six (6) yrs. only starting from
December _____, 1999 or up to December ______, 2005.
 IN WITNESS WHEREOF, the parties have hereunto affixed their hands
this ___th day of December, 1999 at City of Manila, Philippines.

(sgd.) (sgd.)
ROSALIE PALAA-CHUA MOSHIERA LATIEF
LESSORLESSEE

(sgd.)
OMAR LATIEF
LESSEE

SIGNED IN THE PRESENCE OF:

(sgd.) (sgd.)
1. Daisy C. Ramos 2. Ferdinand C. Chua

Republic of the Philippines)

C i t y o f M a n i l a )s.s.

ACKNOWLEDGMENT

BEFORE ME, a Notary Public for and in the City of Manila personally
appeared the following persons:

Rosalie P. Chua with CTC No. 05769706 at Paraaque City on 2/1/99;

Moshiera Latief with CTC No. 12885654 at Paraaque City on
11/11/99; Omar Latief with CTC No. 12885653 Paraaque City on Nov.
11, 1999.

known to me and to me known to be the same persons who executed this

instrument consisting of two (2) pages duly signed by them and the two
(2) instrumental witnesses and acknowledged to me that the same is their
free and voluntarily acts and deeds.

IN FAITH AND TESTIMONY WHEREOF, I have hereunto affixed my

hand and Notarial Seal this ____th day of December, 1999 at the City of
Manila, Philippines.

Doc. No. _____ ATTY. CALIXTRO B. RAMOS

Page No. _____ NOTARY PUBLIC
Book No. LXV Until December 31, 2000
Series of 1999 PTR # 374145-1/11/99/-Mla.
IBP # 00262-Life Member[4]

A year after the commencement of the lease and with Spouses Latip already
occupying the leased cubicles, Rosalie, through counsel, sent the spouses a letter
demanding payment of back rentals and should they fail to do so, to vacate the leased
cubicles. When Spouses Latip did not heed Rosalies demand, she instituted the
aforesaid complaint.

In their Answer, Spouses Latip refuted Rosalies claims. They averred that the lease
of the two (2) cubicles had already been paid in full as evidenced by receipts showing
payment to Rosalie of the total amount of P2,570,000.00. The three (3) receipts, in
Rosalies handwriting, read:

1. I received the amount of P2,000,000.00 (two million pesos) from

[O]mar Latip & Moshi[e]ra Latip for the payment of 2 cubicles located at
158 Quirino Ave. corner Redemptorist Rd.[,] Baclaran P[ara]aque City.
ROFERLAND[5] Bldg. with the terms 6 yrs. Contract.

P2,000,000.00 ______(sgd.)______
CHECK # 3767924 Rosalie Chua
FAR EAST BANK

______(sgd.)______
Ferdinand Chua

2. Received cash
P500,000.00
From Moshiera Latip

(sgd.)
12/10/99 Rosalie Chua
Received by

3. Received cash
P70,000.00 from
Moshiera Latip
12-11-99

____(sgd.)___
Received by:[6]

Spouses Latip asseverated that sometime in October 1999, Rosalie offered for
sale lease rights over two (2) cubicles in Roferxane Bldg. Having in mind the brisk
sale of goods during the Christmas season, they readily accepted Rosalies offer to
purchase lease rights in Roferxane Bldg., which was still under construction at the
time. According to Spouses Latip, the immediate payment of P2,570,000.00 would
be used to finish construction of the building giving them first priority in the
occupation of the finished cubicles.

Thereafter, in December 1999, as soon as two (2) cubicles were finished,

Spouses Latip occupied them without waiting for the completion of five (5) other
stalls. Spouses Latip averred that the contract of lease they signed had been novated
by their purchase of lease rights of the subject cubicles. Thus, they were surprised to
receive a demand letter from Rosalies counsel and the subsequent filing of a
complaint against them.

The MeTC ruled in favor of Rosalie, viz.:

WHEREFORE, premises considered, the [Spouses Latip] and all

persons claiming rights under them are hereby ordered to VACATE the
property subject of this case located at the 1st and 2nd floors of a Roferxane
 Building situated at No. 158 Quirino Avenue corner Redemptorist Road,
Barangay Baclaran, Paraaque City. The [Spouses Latip] are also ordered
to PAY [Rosalie] the amount of SEVEN HUNDRED TWENTY
THOUSAND PESOS (P720,000.00) as rent arrearages for the period of
December 1999 to December 2000 and thereafter to PAY [Rosalie] the
amount of SEVENTY TWO THOUSAND PESOS (P72,000.00) per
month from January 2001 to December 2002, plus ten percent (10%)
increase for each and every succeeding years thereafter as stipulated in
paragraph 2(a) of the Contract of Lease x x x, until the [Spouses Latip]
have completely vacated the leased premises subject of this lease.
Finally[,] the [Spouses Latip] are hereby ordered to PAY [Rosalie] the
amount of TWENTY THOUSAND PESOS (P20,000.00) as attorneys
fees and TWO THOUSAND PESOS (P2,000.00) per [Rosalies]
appearance in Court as appearance fee and to PAY the cost of this suit.

[Spouses Latips] counterclaim is hereby DISMISSED for lack of merit.

SO ORDERED.[7]

In stark contrast, the RTC reversed the MeTC and ruled in favor of Spouses Latip.
The RTC did not give credence to the contract of lease, ruling that it was not
notarized and, in all other substantial aspects, incomplete. Further on this point, the
RTC noted that the contract of lease lacked: (1) the signature of Ferdinand Chua,
Rosalies husband; (2) the signatures of Spouses Latip on the first page thereof; (3)
the specific dates for the term of the contract which only stated that the lease is for
six (6) y[ea]rs only starting from December 1999 or up to December 2005; (4) the
exact date of execution of the document, albeit the month of December and year
1999 are indicated therein; and (5) the provision for payment of deposit or advance
rental which is supposedly uncommon in big commercial lease contracts.

The RTC believed the claim of Spouses Latip that the contract of lease was modified
and supplemented; and the entire lease rentals for the two (2) cubicles for six (6)
years had already been paid by Spouses Latip in the amount of P2,570,000.00. As to
Rosalies claim that her receipt of P2,570,000.00 was simply goodwill payment by
prospective lessees to their lessor, and not payment for the purchase of lease rights,
the RTC shot this down and pointed out that, apart from her bare allegations, Rosalie
did not adduce evidence to substantiate this claim. On the whole, the RTC declared
an existent lease between the parties for a period of six (6) years, and already fully
paid for by Spouses Latip. Thus, Spouses Latip could not be ejected from the leased
premises until expiration of the lease period.

The RTC disposed of the appeal, viz.:

WHEREFORE, all the foregoing considered, the appealed decision of the

[MeTC] dated January 13, 2004 is reversed as judgment is hereby
rendered for the [Spouses Latip] and against [Rosalie], ordering the latter
to pay the former

(1) the sum of PhP1,000,000.00 as moral damages;

 (2) the sum of PhP500,000.00 as exemplary damages;

(3) the sum of PhP250,000.00 plus PhP3,000.00 per court

appearance as and for attorneys fees; and

(4) costs of suit.

SO ORDERED.[8]

In yet another turn of events, the CA, as previously mentioned, reversed the RTC
and reinstated the decision of the MeTC. The CA ruled that the contract of lease,
albeit lacking the signature of Ferdinand and not notarized, remained a complete and
valid contract. As the MeTC had, the CA likewise found that the alleged defects in
the contract of lease did not render the contract ineffective. On the issue of whether
the amount of P2,570,000.00 merely constituted payment of goodwill money, the
CA took judicial notice of this common practice in the area of Baclaran, especially
around the Redemptorist Church. According to the appellate court, this judicial
notice was bolstered by the Joint Sworn Declaration of the stallholders at Roferxane
Bldg. that they all had paid goodwill money to Rosalie prior to occupying the stalls
thereat. Thus, ruling on Rosalies appeal, the CA disposed of the case:

WHEREFORE, in view of the foregoing, the Petition for Review is hereby

GRANTED. The assailed decision of RTC Paraaque City Branch 274
dated September 24, 2004 is hereby REVERSED and SET ASIDE, and
the January 13, 2004 decision of the MeTC is REINSTATED and
AFFIRMED en toto.

SO ORDERED.[9]

Not surprisingly, Spouses Latip filed the present appeal.

The singular issue for our resolution is whether Spouses Latip should be ejected from
the leased cubicles.

As previously adverted to, the CA, in ruling for Rosalie and upholding the ejectment
of Spouses Latip, took judicial notice of the alleged practice of prospective lessees
in the Baclaran area to pay goodwill money to the lessor.

We disagree.

Sections 1 and 2 of Rule 129 of the Rules of Court declare when the taking of
judicial notice is mandatory or discretionary on the courts, thus:

SECTION 1. Judicial notice, when mandatory. A court shall take judicial

notice, without the introduction of evidence, of the existence and
territorial extent of states, their political history, forms of government and
symbols of nationality, the law of nations, the admiralty and maritime
courts of the world and their seals, the political constitution and history of
the Philippines, the official acts of the legislative, executive and judicial
 departments of the Philippines, the laws of nature, the measure of time,
and the geographical divisions.

SEC. 2. Judicial notice, when discretionary. A court may take judicial

notice of matters which are of public knowledge, or are capable of
unquestionable demonstration or ought to be known to judges because of
their judicial functions.

On this point, State Prosecutors v. Muro[10] is instructive:

I. The doctrine of judicial notice rests on the wisdom and discretion

of the courts. The power to take judicial notice is to be exercised by
courts with caution; care must be taken that the requisite notoriety
exists; and every reasonable doubt on the subject should be promptly
resolved in the negative.

Generally speaking, matters of judicial notice have three material

requisites: (1) the matter must be one of common and general knowledge;
(2) it must be well and authoritatively settled and not doubtful or
uncertain; and (3) it must be known to be within the limits of the
jurisdiction of the court. The principal guide in determining what facts
may be assumed to be judicially known is that of notoriety. Hence, it
can be said that judicial notice is limited to facts evidenced by public
records and facts of general notoriety.

To say that a court will take judicial notice of a fact is merely another way
of saying that the usual form of evidence will be dispensed with if
knowledge of the fact can be otherwise acquired. This is because the court
assumes that the matter is so notorious that it will not be disputed. But
judicial notice is not judicial knowledge. The mere personal
knowledge of the judge is not the judicial knowledge of the court, and
he is not authorized to make his individual knowledge of a fact, not
generally or professionally known, the basis of his action. Judicial
cognizance is taken only of those matters which are commonly known.

Things of common knowledge, of which courts take judicial notice, may

be matters coming to the knowledge of men generally in the course of the
ordinary experiences of life, or they may be matters which are generally
accepted by mankind as true and are capable of ready and unquestioned
demonstration. Thus, facts which are universally known, and which may
be found in encyclopedias, dictionaries or other publications, are
judicially noticed, provided they are of such universal notoriety and so
generally understood that they may be regarded as forming part of the
common knowledge of every person.[11]

We reiterated the requisite of notoriety for the taking of judicial notice in the
recent case of Expertravel & Tours, Inc. v. Court of Appeals,[12] which cited State
Prosecutors:

Generally speaking, matters of judicial notice have three material

requisites: (1) the matter must be one of common and general knowledge;
(2) it must be well and authoritatively settled and not doubtful or
 uncertain; and (3) it must be known to be within the limits of the
jurisdiction of the court. The principal guide in determining what facts
may be assumed to be judicially known is that of notoriety. Hence, it can
be said that judicial notice is limited to facts evidenced by public records
and facts of general notoriety. Moreover, a judicially noticed fact must be
one not subject to a reasonable dispute in that it is either: (1) generally
known within the territorial jurisdiction of the trial court; or (2) capable of
accurate and ready determination by resorting to sources whose accuracy
cannot reasonably be questionable.

Things of common knowledge, of which courts take judicial notice, may

be matters coming to the knowledge of men generally in the course of the
ordinary experiences of life, or they may be matters which are generally
accepted by mankind as true and are capable of ready and unquestioned
demonstration. Thus, facts which are universally known, and which may
be found in encyclopedias, dictionaries or other publications, are
judicially noticed, provided, they are such of universal notoriety and so
generally understood that they may be regarded as forming part of the
common knowledge of every person. As the common knowledge of man
ranges far and wide, a wide variety of particular facts have been judicially
noticed as being matters of common knowledge. But a court cannot take
judicial notice of any fact which, in part, is dependent on the existence or
non-existence of a fact of which the court has no constructive knowledge.

From the foregoing provisions of law and our holdings thereon, it is apparent that
the matter which the appellate court took judicial notice of does not meet the
requisite of notoriety. To begin with, only the CA took judicial notice of this
supposed practice to pay goodwill money to the lessor in the Baclaran area. Neither
the MeTC nor the RTC, with the former even ruling in favor of Rosalie, found that
the practice was of common knowledge or notoriously known.

We note that the RTC specifically ruled that Rosalie, apart from her bare allegation,
adduced no evidence to prove her claim that the amount of P2,570,000.00 simply
constituted the payment of goodwill money. Subsequently, Rosalie attached an
annex to her petition for review before the CA, containing a joint declaration under
oath by other stallholders in Roferxane Bldg. that they had paid goodwill money to
Rosalie as their lessor. On this score, we emphasize that the reason why our rules on
evidence provide for matters that need not be proved under Rule 129, specifically
on judicial notice, is to dispense with the taking of the usual form of evidence on a
certain matter so notoriously known, it will not be disputed by the parties.

However, in this case, the requisite of notoriety is belied by the necessity of attaching
documentary evidence, i.e., the Joint Affidavit of the stallholders, to Rosalies appeal
before the CA. In short, the alleged practice still had to be proven by Rosalie;
contravening the title itself of Rule 129 of the Rules of Court What need not be
proved.

Apparently, only that particular division of the CA had knowledge of the

practice to pay goodwill money in the Baclaran area. As was held in State
Prosecutors, justices and judges alike ought to be reminded that the power to take
judicial notice must be exercised with caution and every reasonable doubt on the
subject should be ample reason for the claim of judicial notice to be promptly
resolved in the negative.

Ultimately, on the issue of whether Spouses Latip ought to be ejected from

the leased cubicles, what remains in evidence is the documentary evidence signed
by both parties the contract of lease and the receipts evidencing payment
of P2,570,000.00.

We need not be unduly detained by the issue of which documents were

executed first or if there was a novation of the contract of lease. As had been found
by the RTC, the lease contract and the receipts for the amount of P2,570,000.00 can
be reconciled or harmonized. The RTC declared:

Definitely, the parties entered into a lease agreement over two (2) cubicles
of the 1st and 2nd floors of Roferxane (Roferland) Building, a commercial
building located at 158 Quirino Avenue, corner Redemptorist Road,
Baclaran, Paraaque City and belonging to [Rosalie]. The lease agreement
is for a term of six (6) years commencing in December 1999 up to
December 2005. This agreement was embodied in a Contract of Lease x
x x. The terms of this lease contract, however, are modified or
supplemented by another agreement between the parties executed and or
entered into in or about the time of execution of the lease contract, which
exact date of execution of the latter is unclear.[13]

We agree with the RTCs holding only up to that point. There exists a lease agreement
between the parties as set forth in the contract of lease which is a complete document.
It need not be signed by Ferdinand Chua as he likewise did not sign the other two
receipts for P500,000.00 and P70,000.00, respectively, which contained only the
signature of Rosalie. Besides, it is undisputed that Rosalie owns and leases the stalls
in Roferxane Bldg.; thus, doing away with the need for her husbands consent. The
findings of the three lower courts concur on this fact.

The contract of lease has a period of six (6) years commencing in December 1999.
This fact is again buttressed by Spouses Latips admission that they occupied the
property forthwith in December 1999, bearing in mind the brisk sales during the
holiday season.

On the conflicting interpretations by the lower courts of the receipts amounting

to P2,570,000.00, we hold that the practice of payment of goodwill money in the
Baclaran area is an inadequate subject of judicial notice. Neither was Rosalie able to
provide sufficient evidence that, apart from the belatedly submitted Joint Affidavit
of the stallholders of Roferxane Bldg., the said amount was simply for the payment
of goodwill money, and not payment for advance rentals by Spouses Latip.

In interpreting the evidence before us, we are guided by the Civil Code provisions
on interpretation of contracts, to wit:
 Art. 1371. In order to judge the intention of the contracting parties, their
contemporaneous and subsequent acts shall be principally considered.

Art. 1372. However general the terms of a contract may be, they shall not
be understood to comprehend things that are distinct and cases that are different
from those which the parties intended to agree.

Art. 1373. If some stipulation of any contract should admit of several

meanings, it shall be understood as bearing that import which is most adequate
to render it effectual.

The RTC was already on the right track when it declared that the receipts
for P2,570,000.00 modified or supplemented the contract of lease. However, it made
a quantum leap when it ruled that the amount was payment for rentals of the two (2)
cubicles for the entire six-year period. We cannot subscribe to this finding. To
obviate confusion and for clarity, the contents of the receipts, already set forth above,
are again reproduced:

1. I received the amount of P2,000,000.00 (two million pesos) from

[O]mar Latip & Moshi[e]ra Latip for the payment of 2 cubicles located at
158 Quirino Ave. corner Redemptorist Rd.[,] Baclaran P[ara]que City.
ROFERLAND Bldg. with the terms 6 yrs. Contract.

P2,000,000.00 ______(sgd.)______
CHECK # 3767924 Rosalie Chua
FAR EAST BANK

______(sgd.)______
Ferdinand Chua

2. Received cash
P500,000.00
From Moshiera Latip

(sgd.)
12/10/99 Rosalie Chua
Received by

3. Received cash
P70,000.00 from
Moshiera Latip
12-11-99

___(sgd.) ____
Received by:[14]

There is nothing on the receipts and on record that the payment and receipt
of P2,570,000.00 referred to full payment of rentals for the whole period of the lease.
All three receipts state Rosalies receipt of cash in varying amounts. The first receipt
for P2,000,000.00 did state payment for two (2) cubicles, but this cannot mean full
payment of rentals for the entire lease period when there are no words to that effect.
Further, two receipts were subsequently executed pointing to the obvious fact that
the P2,000,000.00 is not for full payment of rentals. Thus, since the contract of lease
remained operative, we find that Rosalies receipt of the monies should be considered
as advanced rentals on the leased cubicles. This conclusion is bolstered by the fact
that Rosalie demanded payment of the lease rentals only in 2000, a full year after the
commencement of the lease.

Finally, we note that the lease ended in 2005. Consequently, Spouses Latip can be
ejected from the leased premises. They are liable to Rosalie for unpaid rentals on the
lease of the two (2) cubicles in accordance with the stipulations on rentals in the
Contract of Lease. However, the amount of P2,570,000.00, covering advance
rentals, must be deducted from this liability of Spouses Latip to Rosalie.

WHEREFORE, premises considered, the petition is hereby GRANTED.

The decision of the Court of Appeals in CA-G.R. SP No. 89300 is REVERSED.
The petitioners, spouses Omar and Moshiera Latip, are liable to respondent Rosalie
Chua for unpaid rentals minus the amount of P2,570,000.00 already received by her
as advance rentals. No costs.

SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TOMAS
TUNDAG, accused-appellant.

DECISION
QUISUMBING, J.:

For automatic review is the judgment of the Regional Trial Court of Mandaue
City, Branch 28, in Criminal Cases Nos.DU-6186 and DU-6203, finding
appellant Tomas Tundag guilty of two counts of incestuous rape and sentencing
him to death twice.
On November 18, 1997, private complainant Mary Ann Tundag filed with
the Mandaue City Prosecutors Office two separate complaints for incestuous
rape. The first complaint, docketed as Criminal Case No. DU-6186, alleged:

That on or about the 5th day of September, 1997, in the City of Mandaue, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, being
the father of complainant MARY ANN TUNDAG, who is a 13-year-old girl, with
deliberate intent, did then and there wilfully, unlawfully and feloniously have sexual
intercourse with the said offended party against the latters will.

CONTRARY TO LAW.[1]

The other, docketed as Criminal Case No. DU-6203, averred:

That on or about the 7th day of November, 1997, in the City of Mandaue, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, being
the father of complainant MARY ANN TUNDAG, who is a 13-year-old girl, with
deliberate intent, did then and there wilfully, unlawfully and feloniously have sexual
intercourse with the said offended party against the latters will.

CONTRARY TO LAW.[2]

Upon arraignment appellant, assisted by counsel de parte, pleaded Not

Guilty to the charges.
The two cases were consolidated and a joint trial ensued.
Appellants defense was bare denial. He claimed that private complainant
had fabricated the rape charges against him since he and his daughter, had a
quarrel when he accordingly reprimanded her for going out whenever he was
not at home.[3]
Appellant did not present any witness to reinforce his testimony.
On August 31, 1998, the trial court rendered its decision, thus:

WHEREFORE, foregoing premises considered, Joint Judgment is hereby rendered, to

wit:

I. In Criminal Case No. DU-6186 -

a) Finding the herein accused TOMAS TUNDAG guilty beyond reasonable doubt for
the crime of rape, said accused is hereby sentenced to the penalty of death;

b) To indemnify the offended party Mary Ann Tundag the following amounts:

(1) P50,000.00 by reason of the commission of the offense of rape upon her; and
(2) Another P50,000.00 as moral and exemplary damages under Article 2219 in
relation to Articles 2217 and 2230 of the New Civil Code for the pain and moral
shock suffered by her and for the commission of the crime of rape with one qualifying
aggravating circumstance; and

c) To pay the costs.

II. In Criminal Case No. DU-6203 -

a) Finding the herein accused TOMAS TUNDAG guilty beyond reasonable doubt for
the crime of rape, said accused is hereby sentenced to the penalty of death;

b) To indemnify the offended party Mary Ann Tundag the following amounts:

(1) P50,000.00 by reason of the commission of the offense of rape upon her; and

(2) Another P50,000.00 as moral and exemplary damages under Article 2219 in
relation to Articles 2217 and 2230 of the New Civil Code for the pain and moral
shock suffered by her and for the commission of the crime of rape with one qualifying
aggravating circumstance; and

(3) To pay the costs.

SO ORDERED.[4]

In its judgment, the court below gave credence to complainants version of

what accused did to her.

The evidence for the prosecution as adduced during the trial on the merits clearly
shows that private complainant Mary Ann Tundag is a 13 year old girl who does not
know how to read and write and has an IQ of 76% which is a very low general mental
ability and was living with her father, the herein accused, at Galaxy Compound,
Mandaue City.

xxx

That on September 5, 1997 at about 10:00 oclock in the evening, she was in the house
together with her father. But before she went to sleep, her father was already lying
down on the mat while herself (sic) just lied down at his head side which was not
necessarily beside him. However, when she was already sleeping, she noticed that her
father who was already undressed was beside her and was embracing her. Then, he
undressed her which she resisted but her father used a knife and told her that he would
kill her if she shouts and after that, he inserted his penis into her vagina and told her
not to shout or tell anyone. In effect, his penis penetrated her genital, which made her
vagina bleed and was very painful.

That when the penis of her father was already inserted in her vagina, her father was all
the time asking by saying (sic) : Does it feel good? And at the same time, he was
laughing and further, told her that a woman who does not marry can never enter
heaven and he got angry with her when she contradicted his statement.

That while the penis of her father was inside her vagina and (he) was humping over
her, she felt intense pain that she cried and told him to pull it out but did not accede
and in fact, said: Why will I pull it out when it feels so good(?)
That after removing his penis from her vagina and after telling her that she could not
go to heaven if she did not get married, her father just stayed there and continued
smoking while she cried.

That in the evening of November 7, 1997, she was at home washing the dishes while
her father was just smoking and squatting. That after she finished washing the dishes,
she lied (sic) down to sleep when her father embraced her and since she does not like
what he did to her, she placed a stool between them but he just brushed it aside and
laid down with her and was able to take her womanhood again by using a very sharp
knife which he was holding and was pointing it at the right side of her neck which
made her afraid.

That in the early morning of the following day, she left her fathers place and went to
her neighbor by the name of Bebie Cabahug and told her what had happened to her,
who, in turn, advised her to report the matter to the police, which she did and
accompanied by the policemen, she went to the Southern Islands Hospital where she
was examined and after her medical examination, she was brought back by the police
and was investigated by them.[5]

Appellants claim that the complainants charges were manufactured did not
impress the trial court, which found him twice guilty of rape. Now before us,
appellant assails his double conviction, simply contending that:[6]

THE TRIAL COURT HAS COMMITTED AN ERROR IN NOT ABSOLVING THE

ACCUSED-APPELLANT OF THE CRIMES CHARGED IN THE
INFORMATIONS DESPITE THE PRESENCE OF REASONABLE DOUBT TO
EXCULPATE HIM OF THE SAME.

Appellant flatly denies that the incidents complained of ever took place. He
contends that on September 5, 1997, he was working as a watch repairman
near Gals Bakery in Mandaue City Market and went home tired and sleepy at
around 11:00 oclock that evening. On November 7, 1997, he claims he was at
work. In his brief, he argues that it was impossible for him to have raped his
daughter because when the incidents allegedly transpired, he went to work and
naturally, being exhausted and tired, it is impossible for him to do such
wrongdoings.[7]
The Office of the Solicitor General disagrees with appellant and urges the
Court to affirm the trial courts decision, with the recommendation that the award
of damages and indemnity ex delicto be modified to conform to prevailing
jurisprudence.
Considering the gravity of the offense charged as a heinous crime and the
irreversibility of the penalty of death imposed in each of these cases before us,
the Court leaves no stone unturned in its review of the records, including the
evidence presented by both the prosecution and the defense. Conviction must
rest on nothing less than a moral certainty of guilt.[8] But here we find no room
to disturb the trial courts judgment concerning appellants guilt, because his
defense is utterly untenable.
Appellants defense of alibi and denial is negative and self-serving. It hardly
counts as a worthy and weighty ground for exculpation in a trial involving his
freedom and his life. Against the testimony of private complainant who testified
on affirmative matters,[9] such defense is not only trite but pathetic. Denial is an
inherently weak defense, which becomes even weaker in the face of the
positive identification by the victim of the appellant as the violator of her
honor.[10] Indeed, we find that private complainant was unequivocal in charging
appellant with ravishing her. The victims account of the rapes complained of
was straightforward, detailed, and consistent.[11] Her testimony never wavered
even after it had been explained to her that her father could be meted out the
death penalty if found guilty by the court.[12]
In a prosecution for rape, the complainants credibility is the single most
important issue.[13] The determination of the credibility of witnesses is primarily
the function of the trial court. The rationale for this is that the trial court has the
advantage of having observed at first hand the demeanor of the witnesses on
the stand and, therefore, is in a better position to form an accurate impression
and conclusion.[14] Absent any showing that certain facts of value have clearly
been overlooked, which if considered could affect the result of the case, or that
the trial courts finding are clearly arbitrary, the conclusions reached by the court
of origin must be respected and the judgment rendered affirmed.[15]
Moreover, we note here that private complainants testimony is corroborated
by medical findings that lacerations were present in her hymen. The
examination conducted by Dr. Bessie Acebes upon the private complainant
yielded the following results:

Genitalia: grossly female

Pubic Hairs: scanty

Labia Majora: coaptated

Labia Minora: do

Fourchette: U-shaped

Vestibule: pinkish

Hymen: + old healed laceration at 3 and 9 oclock position(s).

Orifice: admits 2 fingers with ease

Vagina:

Walls: pinkish

Ruganities: prominent

Uterus: small

Cervix: closed

Discharges: Mucoid, minimal

Smears:

Conclusions: sperm identification (-)

Gram staining of vaginal disc.[16]

Dr. Acebes testified that her findings of healed hymenal lacerations in the
complainants private parts meant a history of sexual congress on her
part.[17] According to her, the lacerations may have been caused by the entry of
an erect male organ into complainants genitals. The examining physician
likewise pointed out that previous coitus may be inferred from complainants U-
shaped fourchette since the fourchette of a female who has not yet experienced
sexual intercourse is V-shaped.[18] While Dr. Acebes conceded under cross-
examination, that the existence of the datum U-shape(d) fourchette does not
conclusively and absolutely mean that there was sexual intercourse or contact
because it can be caused by masturbation of fingers or other
things,[19] nonetheless, the presence of the hymenal lacerations tends to support
private complainants claim that she was raped by appellant.
Appellant next contends that his daughter pressed the rape charges against
him because she had quarreled with him after he had castigated her for
misbehavior. He stresses that the prosecution did not rebut his testimony
regarding his quarrel or misunderstanding with private complainant. He urges
us to consider the charges filed against him as the result of his frequent
castigation of her delinquent behavior.[20]
Such allegation of a family feud, however, does not explain the charges
away. Filing a case for incestuous rape is of such a nature that a daughters
accusation must be taken seriously. It goes against human experience that a
girl would fabricate a story which would drag herself as well as her family to a
lifetime of dishonor, unless that is the truth, for it is her natural instinct to protect
her honor.[21] More so, where her charges could mean the death of her own
father, as in this case.
Appellant likewise points out that it was very unlikely for him to have
committed the crimes imputed to him considering that he and his wife had ten
children to attend to and care for. This argument, however, is impertinent and
immaterial. Appellant was estranged from his wife, and private complainant was
the only child who lived with him.[22] As pointed out by the Solicitor General,
appellant was thus free to do as he wished to satisfy his bestial lust on his
daughter.[23]
Nor does appellants assertion that private complainant has some
psychological problems and a low IQ of 76 in any way favor his defense. These
matters did not affect the credibility of her testimony that appellant raped her
twice. We note that the victim understood the consequences of prosecuting the
rape charges against her own father, as shown by the following testimony of
the victim on cross-examination:
Q : Were you informed that if, and when your father will be found guilty, your father will be
sentenced to death?
A : Yes.
Q : Until now you wanted that your father will be sentenced by death?
A (Witness nodding.)
xxx
Q : I will inform you, Miss Witness, that you have filed two cases against your father and in
case your father would be found guilty, two death sentences will be imposed against him?
A: Yes.
Q: With that information, do you still want this case would proceed?
A: I want this to proceed.[24]

Indeed, appellant is guilty. But is the penalty of death imposed on him

correct?
Section 335 of the Revised Penal Code, as amended by Section 11 of R.A.
No. 7659,[25] penalizes rape of a minor daughter by her father as qualified
rape[26] and a heinous crime. In proving such felony, the prosecution must allege
and prove the elements of rape: (1) sexual congress; (2) with woman; (3) by
force or without her consent[27] and in order to warrant the imposition of capital
punishment, the additional elements that: (4) the victim is under 18 years of age
at the time of the rape and (5) the offender is a parent of the victim.[28]
In this case, it was sufficiently alleged and proven that the offender was the
victims father.[29] But the victims age was not properly and sufficiently proved
beyond reasonable doubt. She testified that she was thirteen years old at the
time of the rapes. However, she admitted that she did not know exactly when
she was born because her mother did not tell her. She further said that her birth
certificate was likewise with her mother. In her own words, the victim testified
- [30]
COURT TO WITNESS
Q: When were you born?
A: I do not know.
Q: You do not know your birthday?
A: My mama did not tell me exactly when I asked her.
COURT: Proceed.
FISCAL PEREZ: For our failure to secure the Birth Certificate Your Honor, may we just request
for judicial notice that the victim here is below 18 years old.
ATTY. SURALTA: Admitted.

Judicial notice is the cognizance of certain facts which judges may properly
take and act on without proof because they already know them.[31] Under the
Rules of Court, judicial notice may either be mandatory or discretionary. Section
1 of Rule 129 of the Rules of Court provides when court shall take mandatory
judicial notice of facts -

SECTION 1. Judicial notice, when mandatory. - A court shall take judicial notice
without the introduction of evidence, of the existence and territorial extent of states,
their political history, forms of government and symbols of nationality, the law of
nations, the admiralty and maritime courts of the world and their seals, the political
constitution and history of the Philippines, the official acts of the legislative, executive
and judicial departments of the Philippines, the laws of nature, the measure of time,
and the geographical divisions.

Section 2 of Rule 129 enumerates the instances when courts may take
discretionary judicial notice of facts -

SEC. 2. Judicial notice, when discretionary. - A court may take judicial notice of
matters which are of public knowledge, or are capable of unquestionable
demonstration or ought to be known to judges because of their judicial functions.

Thus, it can be considered of public knowledge and judicially noticed that

the scene of the rape is not always nor necessarily isolated or secluded for lust
is no respecter of time or place. The offense of rape can and has been
committed in places where people congregate, e.g. inside a house where there
are occupants, a five (5) meter room with five (5) people inside, or even in the
same room which the victim is sharing with the accuseds sister.[32]
The Court has likewise taken judicial notice of the Filipinas inbred modesty
and shyness and her antipathy in publicly airing acts which blemish her honor
and virtue.[33]
On the other hand, matters which are capable of unquestionable
demonstration pertain to fields of professional and scientific knowledge. For
example, in People v. Alicante,[34] the trial court took judicial notice of the clinical
records of the attending physicians concerning the birth of twin baby boys as
premature since one of the alleged rapes had occurred 6 to 7 months earlier.
As to matters which ought to be known to judges because of their judicial
functions, an example would be facts which are ascertainable from the record
of court proceedings, e.g. as to when court notices were received by a party.
With respect to other matters not falling within the mandatory or
discretionary judicial notice, the court can take judicial notice of a fact pursuant
to the procedure in Section 3 of Rule 129 of the Rules of Court which requires
that -

SEC. 3. Judicial notice, when hearing necessary. - During the trial, the court, on its
own initiative, or on request of a party, may announce its intention to take judicial
notice of any matter and allow the parties to be heard thereon.

After the trial, and before judgment or on appeal, the proper court, on its own
initiative or on request of a party, may take judicial notice of any matter and allow the
parties to be heard thereon if such matter is decisive of a material issue in the case.

In this case, judicial notice of the age of the victim is improper, despite the
defense counsels admission, thereof acceding to the prosecutions motion. As
required by Section 3 of Rule 129, as to any other matters such as age, a
hearing is required before courts can take judicial notice of such fact. Generally,
the age of the victim may be proven by the birth or baptismal certificate of the
victim, or in the absence thereof, upon showing that said documents were lost
or destroyed, by other documentary or oral evidence sufficient for the purpose.
Thus, in People v. Rebancos, 172 SCRA 426 (1989), the victim was below
12 and we found that the rape committed was statutory rape. The mother
testified that her daughter was born on October 26, 1974, and so was only 9
years old at the time of the rape on February 12, 1984. Although no birth
certificate was presented because the victims birth had allegedly not been
registered, her baptismal certificate was duly presented. Hence, we ruled that
the mothers testimony coupled with the presentation of the baptismal certificate
was sufficient to establish that the victim was below 12 at the time of the rape.
However, in People v. Vargas, 257 SCRA 603 (1996), we ruled that
appellant can only be convicted of simple rape, and not statutory rape, because
of failure of the prosecution to prove the minority of the victim, who was
allegedly 10 years old at the time of the rape. The prosecution failed to present
either the birth or baptismal certificate of the victim. Also there was no showing
that the said documents were lost or destroyed to justify their non-
presentation. We held that testimony of the victim and her aunt were hearsay,
and that it was not correct for the trial court to judge the age of the victim by her
appearance.
In several recent cases, we have emphasized the need for independent
proof of the age of the victim, aside from testimonial evidence from the victim
or her relatives. In People v. Javier,[35] we stressed that the prosecution must
present independent proof of the age of the victim, even though it is not
contested by the defense. The minority of the victim must be proved with equal
certainty and clearness as the crime itself. In People v. Cula,[36] we reiterated
that it is the burden of the prosecution to prove with certainty the fact that the
victim was below 18 when the rape was committed in order to justify the
imposition of the death penalty. Since the record of the case was bereft of any
independent evidence thereon, such as the victims duly certified Certificate of
Live Birth, accurately showing private complainants age, appellant could not be
convicted of rape in its qualified form. In People v. Veloso,[37] the victim was
alleged to have been only 9 years of age at the time of the rape. It held that the
trial court was correct when it ruled that the prosecution failed to prove the
victims age other than through the testimony of her father and herself.
Considering the statutory requirement in Section 335 of the Revised Penal
Code as amended by R.A. No. 7659 and R.A. No. 8353, we reiterate here what
the Court has held in Javier without any dissent, that the failure to sufficiently
establish victims age by independent proof is a bar to conviction for rape in its
qualified form. For, in the words of Melo, J., independent proof of the actual age
of a rape victim becomes vital and essential so as to remove an iota of doubt
that the case falls under the qualifying circumstances for the imposition of the
death penalty set by the law.
In this case, the first rape was committed on September 5, 1997 and is
therefore governed by the death penalty law, R.A. 7659. The penalty for the
crime of simple rape or rape in its unqualified form under Art. 335 of the Revised
Penal Code, as amended by Sec. 11 of R.A. 7659, is reclusion perpetua. The
second rape was committed on November 7, 1997, after the effectivity of R.A.
8353, also known as the Anti-Rape Law of 1997, which took effect on October
22, 1997. The penalty for rape in its unqualified form remains the same.
As to civil indemnity, the trial court correctly awarded P50,000.00 for each
count of rape as civil indemnity. However, the award of another P50,000.00 as
moral and exemplary damages under Article 2219 in relation to Articles 2217
and 2230 of the Civil Code for each count is imprecise. In rape cases, the
prevailing jurisprudence permits the award of moral damages without need for
pleading or proof as to the basis thereof.[38] Thus, pursuant to current
jurisprudence, we award the amount of P50,000.00 as moral damages for each
count of rape.
The award of exemplary damages separately is also in order, but on a
different basis and for a different amount. Appellant being the father of the
victim, a fact duly proved during trial, we find that the alternative circumstance
of relationship should be appreciated here as an aggravating
circumstance. Under Article 2230 of the New Civil Code, exemplary damages
may be imposed when the crime was committed with one or more aggravating
circumstances. Hence, we find an award of exemplary damages in the amount
of P25,000.00 proper. Note that generally, in rape cases imposing the death
penalty, the rule is that relationship is no longer appreciated as a generic
aggravating circumstance in view of the amendments introduced by R.A. Nos.
7659 and 8353. The father-daughter relationship has been treated by Congress
in the nature of a special circumstance which makes the imposition of the death
penalty mandatory.[39] However, in this case, the special qualifying circumstance
of relationship was proved but not the minority of the victim, taking the case out
of the ambit of mandatory death sentence. Hence, relationship can be
appreciated as a generic aggravating circumstance in this instance so that
exemplary damages are called for. In rapes committed by fathers on their own
daughters, exemplary damages may be imposed to deter other fathers with
perverse tendency or aberrant sexual behavior from sexually abusing their own
daughters.[40]
WHEREFORE, the judgment of the Regional Trial Court of Mandaue City,
Branch 28, in Criminal Case Nos. DU-6186 and DU-6203, is hereby MODIFIED
as follows: appellant Tomas Tundag is found guilty of two (2) counts of simple
rape; and for each count, sentenced to reclusion perpetua and ordered to pay
the victim the amount of P50,000.00 as indemnity, P50,000.00 as moral
damages, and P25,000.00 as exemplary damages.
No pronouncement as to costs.
SO ORDERED.

MANUEL G. REYES, MILA G. REYES, DANILO G. REYES, LYN AGAPE,

MARITES AGAPE, ESTABANA GALOLO, and CELSA
AGAPE, petitioners, vs. COURT OF APPEALS AND JULIO
VIVARES, respondents.

DECISION
TORRES, JR., J.:

Unless legally flawed, a testators intention in his last will and testament is
its life and soul which deserves reverential observance.
The controversy before us deals with such a case.
Petitioners Manuel G. Reyes, Mila G. Reyes, Danilo G. Reyes, Lyn Agape,
Marites Agape, Estebana Galolo and Celsa Agape, the oppositors in Special
Proceedings No. 112 for the probate of the will of Torcuato J. Reyes, assail in
this petition for review the decision of the Court of Appeals dated November
[1]

29, 1995, the dispositive portion of which reads:

WHEREFORE, premises considered, the judgment appealed from allowing or

admitting the will of Torcuato J. Reyes to probate and directing the issuance of Letter
Testamentary in favor of petitioner Julio A. Vivares as executor without bond is
AFFIRMED but modified in that the declaration that paragraph II of the Torcuato
Reyes' last will and testament, including subparagraphs (a) and (b) are null and void
for being contrary to law is hereby SET ASIDE, said paragraphs (a) and (b) are
declared VALID. Except as above modified, the judgment appealed from is
AFFIRMED.

SO ORDERED." [2]

The antecedent facts:

On January 3, 1992, Torcuato J. Reyes executed his last will and testament
declaring therein in part, to wit:

xxx

II. I give and bequeath to my wife Asuncion Oning R. Reyes the following properties
to wit:

a. All my shares of our personal properties consisting among others of jewelries,

coins, antiques, statues, tablewares, furnitures, fixtures and the building;

b. All my shares consisting of one half (1/2) or 50% of all the real estates I own in
common with my brother Jose, situated in Municipalities of Mambajao, Mahinog,
Guinsiliban, Sagay all in Camiguin; real estates in Lunao, Ginoong, Caamulan,
Sugbongcogon, Boloc-Boloc, Kinoguinatan, Balingoan, Sta. Ines, Caesta, Talisayan,
all in the province of Misamis Oriental.[3]
 The will consisted of two pages and was signed by Torcuato Reyes in the
presence of three witnesses: Antonio Veloso, Gloria Borromeo, and Soledad
Gaputan. Private respondent Julio A. Vivares was designated the executor and
in his default or incapacity, his son Roch Alan S. Vivares.
Reyes died on May 12, 1992 and on May 21, 1992, private respondent filed
a petition for probate of the will before the Regional Trial Court of Mambajao,
Camiguin. The petitioner was set for hearing and the order was published in the
Mindanao Daily Post, a newspaper of general circulation, once a week for three
consecutive weeks. Notices were likewise sent to all the persons named in the
petition.
On July 21, 1992, the recognized natural children of Torcuato Reyes with
Estebana Galolo, namely Manuel, Mila, and Danilo all surnamed Reyes, and
the deceaseds natural children with Celsa Agape, namely Lyn and Marites
Agape, filed an opposition with the following allegations: a) that the last will and
testament of Reyes was not executed and attested in accordance with the
formalities of law; and b) that Asuncion Reyes Ebarle exerted undue and
improper influence upon the testator at the time of the execution of the will. The
opposition further averred that Reyes was never married to and could never
marry Asuncion Reyes, the woman he claimed to be his wife in the will, because
the latter was already married to Lupo Ebarle who was still then alive and their
marriage was never annulled. Thus Asuncion can not be a compulsory heir for
her open cohabitation with Reyes was violative of public morals.
On July 22, 1992, the trial court issued an ordering declaring that it had
acquired jurisdiction over the petition and, therefore, allowed the presentation
of evidence. After the presentation of evidence and submission of the
respective memoranda, the trial court issued its decision on April 23, 1993.
The trial court declared that the will was executed in accordance with the
formalities prescribed by law. It, however, ruled that Asuncion Reyes, based on
the testimonies of the witnesses, was never married to the deceased Reyes,
and, therefore, their relationship was an adulterous one. Thus:

The admission in the will by the testator to the illicit relationship between him and
ASUNCION REYES EBARLE who is somebody elses, wife, is further bolstered,
strengthened, and confirmed by the direct testimonies of the petitioner himself and his
two attesting witnesses during the trial.

In both cases, the common denominator is the immoral meretrecious, adulterous and
adulterous and illicit relationship existing between the testator and the devisee prior to
the death of the testator, which constituted the sole and primary consideration for the
devise or legacy, thus making the will intrinsically invalid.[4]

The will of Reyes was admitted to probate except for paragraph II (a) and
(b) of the will which was declared null and void for being contrary to law and
morals. Hence, Julio Vivares filed an appeal before the Court of Appeals with
the allegation that the oppositors failed to present any competent evidence that
Asuncion Reyes was legally married to another person during the period of her
cohabitation with Torcuato Reyes.
On November 29, 1995, the Court of Appeals promulgated the assailed
decision which affirmed the trial courts decision admitting the will for probate
but the modification that paragraph II including subparagraphs (a) and (b) were
declared valid. The appellee court stated:
Considering that the oppositors never showed any competent, documentary or
otherwise during the trial to show that Asuncion Oning Reyes marriage to the testator
was inexistent or void, either because of a pre-existing marriage or adulterous
relationship, the trial court gravely erred in striking down paragraph II (a) and (b) of
the subject Last Will and Testament, as void for being contrary to law and
morals. Said declarations are not sufficient to destroy the presumption of
marriage. Nor is it enough to overcome the very declaration of the testator that
Asuncion Reyes is his wife. [5]

Dissatisfied with the decision of the Court of Appeals, the oppositors filed
this petition for review.
Petitioners contend that the findings and conclusion of the Court of Appeals
was contrary to law, public policy and evidence on record. Torcuato Reyes and
Asuncion Oning Reyes were collateral relatives up to the fourth civil
degree. Witness Gloria Borromeo testified that Oning Reyes was her cousin as
her mother and the latters father were sister and brother. They were also nieces
of the late Torcuato Reyes. Thus, the purported marriage of the deceased
Reyes and Oning Reyes was void ab initio as it was against public policy
pursuant to Article 38 (1) of the Family Code. Petitioners further alleged that
Oning Reyes was already married to Lupo Ebarle at the time she was
cohabiting with the testator hence, she could never contact any valid marriage
with the latter. Petitioners argued that the testimonies of the witnesses as well
as the personal declaration of the testator, himself, were sufficient to destroy
the presumption of marriage. To further support their contention, petitioners
attached a copy of the marriage certificate of Asuncion Reyes and Lupo
Ebarle. [6]

The petition is devoid of merit.

As a general rule, courts in probate proceedings are limited to pass only
upon the extrinsic validity of the will sought to be probated. Thus, the court
[7]

merely inquires on its due execution, whether or not it complies with the
formalities prescribed by law, and the testamentary capacity of the testator. It
does not determine nor even by implication prejudge the validity or efficacy of
the wills provisions. The intrinsic validity is not considered since the
[8]

consideration thereof usually comes only after the will has been proved and
allowed. There are, however, notable circumstances wherein the intrinsic
validity was first determined as when the defect of the will is apparent on its
face and the probate of the will may become a useless ceremony if it is
intrinsically invalid. The intrinsic validity of a will may be passed upon because
[9]

practical considerations demanded it as when there is preterition of heirs or the

testamentary provisions are doubtful legality. Where the parties agree that the
[10]

intrinsic validity be first determined, the probate court may also do

so. Parenthetically, the rule on probate is not inflexible and absolute. Under
[11]

exceptional circumstances, the probate court is not powerless to do what the

situation constrains it to do and pass upon certain provisions of the will. [12]

The case at bar arose from the institution of the petition for the probate of
the will of the late Torcuato Reyes. Perforce, the only issues to be settled in the
said proceeding were: (1) whether or not the testator had animus testandi; (2)
whether or not vices of consent attended the execution of the will; and (3)
whether or not the formalities of the will had been complied with. Thus, the lower
court was not asked to rule upon the intrinsic validity or efficacy of the provisions
of the will. As a result, the declaration of the testator that Asuncion Oning Reyes
was his wife did not have to be scrutinized during the probate proceedings. The
propriety of the institution of Oning Reyes as one of the devisees/legatees
already involved inquiry on the wills intrinsic validity and which need not be
inquired upon by the probate court.
The lower court erroneously invoked the ruling in Nepomuceno vs. Court of
Appeals (139 SCRA 206) in the instant case. In the case aforesaid, the testator
himself, acknowledged his illicit relationship with the devisee, to wit:

Art. IV. That since 1952, I have been living, as man and wife, with one Sofia J.
Nepomuceno, whom I declare and avow to be entitled to my love an [sic] affection,
for all the things which she has done for me, now and in the past; that while Sofia J.
Nepomuceno has with my full knowledge and consent, did comfort and represent
myself as her own husband, in truth and in fact, as well as in the eyes of the law, I
could not bind her to me in the holy bonds of matrimony because of my
aforementioned previous marriage.

Thus, the very tenor of the will invalidates the legacy because the testator
admitted he was disposing of the properties to a person with whom he had been
living in concubinage. To remand the case would only be a waste of time and
[13]

money since the illegality or defect was already patent. This case is different
from the Nepomuceno case. Testator Torcuato Reyes merely stated in his will
that he was bequeathing some of his personal and real properties to his wife,
Asuncion Oning Reyes. There was never an open admission of any illicit
relationship. In the case of Nepomuceno, the testator admitted that he was
already previously married and that he had an adulterous relationship with the
devisee.
We agree with the Court of Appeals that the trial court relied on
uncorroborated testimonial evidence that Asuncion Reyes was still married to
another during the time she cohabited with the testator. The testimonies of the
witnesses were merely hearsay and even uncertain as to the whereabouts or
existence of Lupo Ebarle, the supposed husband of Asuncion. Thus:

The foregoing testimony cannot go against the declaration of the testator that
Asuncion Oning Reyes is his wife. In Alvarado v. City Government of Tacloban
(supra) the Supreme Court stated that the declaration of the husband is competent
evidence to show the fact of marriage.

Considering that the oppositors never showed any competent evidence, documentary
or otherwise during the trial to show that Asuncion Oning Reyes marriage to the
testator was inexistent or void, either because of a pre-existing marriage or adulterous
relationship, the trial court gravely erred in striking down paragraph II (a) and (b) of
the subject Last Will and Testament, as void for being contrary to law and
morals. Said declarations are not sufficient to destroy the presumption of
marriage. Nor is it enough to overcome the very declaration of the testator that
Asuncion Reyes is his wife. [14]

In the elegant language of Justice Moreland written decades ago, he said-

A will is the testator speaking after death. Its provisions have substantially the same
force and effect in the probate court as if the testator stood before the court in full life
making the declarations by word of mouth as they appear in the will. That was the
special purpose of the law in the creation of the instrument known as the last will and
testament. Men wished to speak after they were dead and the law, by the creation of
that instrument, permitted them to do so. xxx All doubts must be resolved in favor of
the testators having meant just what he said. (Santos vs. Manarang, 27 Phil. 209).
 Petitioners tried to refute this conclusion of the Court of Appeals by
presenting belatedly a copy of the marriage certificate of Asuncion Reyes and
Lupo Ebarle. Their failure to present the said certificate before the probate court
to support their position that Asuncion Reyes had an existing marriage with
Ebarle constituted a waiver and the same evidence can no longer be
entertained on appeal, much less in this petition for review. This Court would
no try the case a new or settle factual issues since its jurisdiction is confined to
resolving questions of law which have been passed upon by the lower
courts. The settled rule is that the factual findings of the appellate court will not
be disturbed unless shown to be contrary to the evidence on the record, which
petitioners have not shown in this case. [15]

Considering the foregoing premises, we sustain the findings of the appellate

court it appearing that it did not commit a reversible error in issuing the
challenged decision.
ACCORDINGLY, decision appealed from dated November 29, 1995, is
hereby AFFIRMED and the instant petition for review is DENIED for lack of
merit.
SO ORDERED.

appears that on December 29, 1965, private respondents spouses Loreto

Claravall and Victoria Claravall executed a deed of sale in favor of the spouses
Francisco Ramirez, Jr. and Carolina Ramirez covering a parcel of land,
including improvements thereon, situated in Ilagan, Isabela. On even date,
another instrument was executed granting the spouses Claravall an option to
repurchase the property within a period of two years from December 29, 1965
but not earlier nor later than the month of December, 1967. [1]

At the expiration of the two-year period, the Claravalls failed to redeem the
property, prompting them to file a complaint against the spouses Francisco
Ramirez, Jr. and Carolina Ramirez to compel the latter to sell the property back
to them. [2]

The complaint of Claravall and his wife, herein private respondents, against
the spouses Ramirez was docketed as Civil Case No. 2043 at the Ilagan,
Isabela Regional Trial Court (RTC). [3]

After trial, judgment was rendered in favor of the spouses Ramirez which
was, on appeal, affirmed by the Court of Appeals. On review, however, this
Court, finding that the Deed of Absolute Sale with option to repurchase
executed by private respondents in favor of the spouses Ramirez was one of
equitable mortgage, reversed the decision of the appellate court by Decision of
October 15, 1990 the dispositive portion of which reads:
[4]

WHEREFORE, the decision of respondent Court promulgated on April 22, 1976 and
its resolution of June 22, 1977 are hereby reversed and set aside. The Deed of
Absolute Sale between the parties with the option to repurchase is declared an
equitable mortgage and, petitioners [Claravalls] are declared entitled to redeem the
mortgaged property which shall be effected upon the payment of their mortgage debt
to private respondents [Ramirezes] in the amount of P85,000.00 with legal rate of
interest from December 31, 1967, the time the loan matured until it is fully
paid. (Emphasis supplied)
[5]

The decision of this Court having become final and executory, possession
[6]

of the property was turned over to private respondents after they settled their
obligation to the spouses Ramirez.
 Following the death of Francisco Ramirez, Jr. or on November 21, 1994,
private respondents filed a complaint before the RTC of Ilagan for accounting
[7]

and damages against herein petitioners, namely, Ramirezs Intestate Estate, his
widow Carolina P. Ramirez, and their children Ferdinand P. Ramirez, Francis
P. Ramirez and Frederic P. Ramirez. The complaint, docketed as Civil Case
No. 834, alleged, inter alia, that:
(1) the spouses Ramirez acted fraudulently and in bad faith in refusing and obstructing
the redemption of the property by private respondents from January 1, 1968 up to
December 31, 1993 during which petitioners were receiving rentals from the tenants
of the property which must be accounted for and returned to private respondents;
(2) before the possession of the property was turned over to private respondents,
petitioners vandalized, destroyed and carried away many portion[s]/parts of the
improvements on the property, causing damages amounting to Five Hundred
Thousand (P500,000.00) Pesos which petitioners must pay and be liable for; and
(3) private respondents were forced to litigate in order to protect their rights and interests
over the property, hence, petitioners must be held liable for actual damages and
expenses of litigation.[8]

Petitioners filed a motion to dismiss private respondents complaint,

[9]

alleging that since the issue of rentals [was] raised in [Civil Case No. 2043], but
not favorably acted upon in favor of [private respondents], the latter are barred
from raising anew the same issue in another litigation. Further, petitioners
[10]

alleged that the complaint does not state a cause of action since prior to the
date when redemption was to be effected, the registered owners of the property
were the spouses Ramirez who were entitled to the rentals and fruits thereof,
and under our law on succession, debt or liability is not passed to the heirs of a
decedent. [11]

By Order of June 7, 1995, Branch 18 of the Ilagan RTC deferred the

[12]

resolution of petitioners Motion to Dismiss upon a finding that the grounds

raised therein did not appear indubitable. Petitioners motion for [13]

reconsideration of said order having been denied, they filed a petition for
[14] [15]

certiorari before this Court, which referred it to the Court of Appeals, imputing [16]

grave abuse of discretion amounting to lack of jurisdiction on the part of the trial
court in not dismissing private respondents complaint.
Finding that the trial courts order denying the motion to dismiss cannot be
the basis of a petition for certiorari and that private respondents complaint is not
barred by prior judgment, the appellate court dismissed the petition by
Decision of October 21, 1997. Their Motion for Reconsideration having been
[17] [18]

denied by Resolution of May 13, 1998, petitioners filed the present

[19]

Petition for Review on Certiorari under Rule 45 faulting the appellate court with
[20]

I.
GRAVE ABUSE OF DISCRETION . . . IN NOT DISMISSING THE PRESENT
COMPLAINT INSOFAR AS IT SEEKS TO RE-LITIGATE THE ISSUES OF
RENTALS BECAUSE IT IS CRYSTAL CLEAR THAT THE PRESENT ACTION FOR
RECOVERY OF RENTALS IS BARRED BY PRIOR JUDGMENT BETWEEN THE SAME
PARTIES ON THE SAME MATTER IN CIVIL CASE NO. 2043[21] [AND]
II.
GRAVE ABUSE OF DISCRETION . . . IN NOT DISMISSING THE COMPLAINT FOR
LACK OF CAUSE OF ACTION. CONSIDERING (1) THAT PRIOR TO REDEMPTION
THE REGISTERED OWNERS OF THE PROPERTY WAS THE LATE FRANCISCO
RAMIREZ, JR. AND PETITIONER CAROLINA RAMIREZ WHO WERE ENTITLED TO
THE FRUITS AND (2) THAT THE CLAIMS OF PRIVATE RESPONDENTS, IF ANY,
SHOULD BE FILED IN THE SPECIAL PROCEEDINGS FOR THE SETTLEMENT OF
THE ESTATE OF THE LATE FRANCISCO RAMIREZ, JR., AND NOT IN AN ORDINARY
CIVIL ACTION FOR DAMAGES AGAINST HIS HEIRS BECAUSE THE LIABILITY FOR
DAMAGES MAY NOT BE PASSED ON TO THE HEIRS BY
INHERITANCE.[22] (UNDERSCORING SUPPLIED)
 At the outset, it must be stressed that only questions of law may be raised
in petitions for review before this Court under Rule 45 of the Rules of Court. It [23]

was thus error for petitioners to ascribe to the appellate court grave abuse of
discretion. This procedural lapse notwithstanding, in the interest of justice, this
Court shall treat the issues as cases of reversible error. [24]

Petitioners insist that the complaint in Civil Case No. 834 is barred by prior
judgment insofar as it seeks to re-litigate the issue of rentals, it having already
been put in issue in Civil Case No. 2043 which was not favorably acted upon in
favor of private respondents. [25]

In their complaint in Civil Case No. 834, aside from the recovery of rentals,
private respondents raised the issue of damages arising from petitioners
alleged destruction of some improvements on the property, which latter issue
was not touched upon in petitioners Motion to Dismiss.
The issue of damages arising from the alleged destruction of improvements
on the property could not of course have been raised in Civil Case No. 2043 for
such issue arose only upon the execution of this Courts final decision in said
case. Thus, private respondents complaint in Civil Case No 834 alleges:

xxx

[W]hen [petitioners] abandoned the commercial property abovedescribed for the

sheriff to turn over the possession thereof to [private respondents, petitioners]
vandalized, destroyed and carried away many portion/parts of said building. . . [26]

xxx

In other words, the fourth of the following requisites of res judicata, to wit:
(1) the former judgment must be final; (2) it must have been rendered by a court
having jurisdiction over the subject matter and the parties; (3) it must be a
judgment on the merits; and (4) there must be between the first and second
action identity of parties, identity of subject matter, and identity of causes of
action, is not present, there being no identity of causes of action between the
[27]

two cases. For while the cause of action in Civil Case No. 2043 arose from
the spouses Ramirezs alleged refusal to allow redemption of the property, one
of the causes of action in Civil Case No. 834 arose from the alleged damage to
the improvements on the property attributed to petitioners before it was turned
over to the sheriff upon execution of the final judgment in the first case. In fine,
Civil Case No. 834 is not barred by the judgment in Civil Case No. 2043.
At all events, petitioners aver that the complaint in Civil Case No. 834
alleges no cause of action because it was they who were entitled to the fruits of
the property and not private respondents as, prior to the redemption thereof,
the registered owners were the spouses Ramirez and not private respondents. [28]

The flaw in petitioners argument stems from their submission that the
spouses Ramirez, as vendees, were the owners of the property after it was
registered in their names following the execution of the deed of sale in their
favor. The declaration, however, by this Court in the first case that the deed of
sale with option to repurchase entered into by the spouses Ramirez and private
respondents was an equitable mortgage necessarily takes the deed out of the
ambit of the law on sales and puts into operation the law on mortgage. [29]

It is a well-established doctrine that the mortgagors default does not operate

to vest the mortgagee the ownership of the encumbered property and the act
[30]

of the mortgagee in registering the mortgaged property in his own name upon
the mortgagors failure to redeem the property amounts to pactum
commissorium, a forfeiture clause declared by this Court as contrary to good
[31]

morals and public policy and, therefore, void. Before perfect title over a
[32]

mortgaged property may thus be secured by the mortgagee, he must, in case

of non-payment of the debt, foreclose the mortgage first and thereafter
purchase the mortgaged property at the foreclosure sale. [33]

In fine, the ownership of the property was not vested to the spouses Ramirez
upon private respondents failure to pay their indebtedness, the registration of
the property in the formers names notwithstanding, absent any showing that
they foreclosed the mortgage and purchased the property at a foreclosure sale.
Petitioners furthermore allege that since the action in Civil Case No. 834
was for recover[y of] damages and for rent[als, t]he action does not survive
Francisco Ramirez, Jr., hence, the claims of private respondents should have
been filed in the special proceedings for the settlement of his estate, and not in
an ordinary civil action for damages against his heirs, liability for damages not
being passed on to the heirs by inheritance. [34]

Private respondents complaint, however, is not only for the recovery of

rentals. As priorly discussed, the complaint alleges a second cause of
action, i.e., for the recovery of damages as a result of alleged destruction and
vandalism to the improvements on the property.
The complaint clearly alleges that the destruction of and vandalism to the
property were caused by the defendants, herein petitioners, and not by
Francisco Ramirez, Jr. alone. Assuming that this allegation is true, private [35]

respondents have a cause of action against Franciscos widow Carolina and

their children Ferdinand, Francis and Frederic Ramirez in their personal
capacities. On this score alone, the complaint stands.
WHEREFORE, the instant petition is hereby DENIED.
SO ORDERED.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODEGELIO
TURCO, JR., aka TOTONG, accused-appellant.

DECISION
MELO, J.:

Accused-appellant Rodegelio Turco, Jr. (aka "Totong") was charged with the crime
of rape in Criminal Case No. 2349-272, Branch I of the Regional Trial Court of Basilan of
the 9th Judicial Region, stationed in Isabela, Basilan, under the following Information:

That on or about the 8th day of July, 1995, and within the jurisdiction of this
Honorable Court, viz., at Km. 6, Begang Barangay, Municipality of Isabela,
Province of Basilan, Philippines, the above-named accused, by the use of
force, threat and intimidation, did then and there willfully, unlawfully and
feloniously grab the undersigned complainant by her neck, cover her mouth
and forcibly make her lie down, after which the said accused mounted on top
of her and removed her short pant and panty. Thereafter, the said accused, by
the use of force, threat and intimidation, inserted his penis into the vagina of
the undersigned complainant and finally succeeded to have carnal knowledge
of her, against her will.

CONTRARY TO LAW.

(p. 6, Rollo.)
 At his arraignment on November 8, 1995, accused-appellant entered a plea of not
guilty, after which trial ensued.
The prosecution's version of the generative facts, as gathered from the testimony of
its witnesses - Alejandra Tabada, mother of the victim; PO3 Celso Y. Tan Sanchez, the
police officer who investigated the case; Orlando Pioquinto, brother-in-law of the victim;
Escelea Tabada, the 13-year-old victim; and Felicitas delos Santos Timorata, the medical
record clerk who used to be the medical officer under Dr. Rimberto Sanggalang, the
physician who physically examined the victim after the incident - is abstracted in the
Appellee's Brief in this wise:

Escelea Tabada and appellant Rodegelio Turco were neighbors in lower

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

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

Cory left upon reaching Escelea's home. Escelea went upstairs to join her
grandmother who was already sleeping in the room. About to enter the said
room, Escelea heard a call from outside. She recognized the voice and when
she asked who was it, the party introduced himself as the appellant, viz:

Q. After you heard your named was mentioned, what did you say if any?
A. I answered: "Who is that?"
Q. Did the person calling your name answer you?
A. I heard, sir, "me Totong".
Q. When you say the person who called your name "Lea" was "Totong" you are referring to
whom?
A. Rodegelio, sir.

(p. 15, id; Underscoring supplied)

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

Appellant bid Eseelea to walk. When they reached a grassy part, near the pig
pen which was about twelve (12) meters away from the victim's house,
appellant lost no time in laying the victim on the grass, laid on top of the victim
and took off her shortpants and panty (pp. 17-19, id). Escelea tried to resist by
moving her body but to no avail. Appellant succeeded in pursuing his evil
design-by forcibly inserting his penis inside Escelea's private part. The victim
felt terrible pain (p. 20, id). Still dissatisfied, after consummating the act,
appellant kissed and held the victim's breast. Thereafter, appellant threatened
her that he will kill her if she reports the incident to anybody, thus:

"He threatened me, that if you will reveal the incident to anybody I will kill you.
 (p. 21, id; Underscoring supplied)

Finally, after having satisfied his lust, appellant hurriedly went home. Escelea,
on the other hand, upon reaching home, discovered that her shortpants and
panty were filled with blood (p. 23, id). For almost ten (10) days, she just kept
to herself the harrowing experience until July 18, 1995 when she was able to
muster enough courage to tell her brother-in-law, Orlando Pioquinto, about the
said incident. Orlando in turn informed Alejandro, the victim's father, about the
rape of his daughter. Alejandro did not waste time and immediately asked
Escelea to see a doctor for medical examination (p. 27, id).

Escelea was accompanied by her sister Clairlyn Pioquinto to the Provincial

Hospital. She was examined by Dr. Rimberto Sanggalang. After the issuance
of the medical certificate, they went to Isabela Municipal Station and filed
Escelea's complaint against appellant (pp. 30-33, id).

(pp. 97-100, Rollo.)

The defense presented Leonora Cabase, neighbor of accused-appellant; her

granddaughter Corazon Macapili, and accused-appellant himself. Accused-appellant
denied the charge. The defense that the victim and him were sweethearts was also
advanced. Leonora Cabase mentioned this in her direct testimony.
In reaching a moral certainty of guilt, the trial court held:

While the accused denies the charge of rape, his witness, Mrs. Leonora
Cabase was trying to project that the complainant Escelea Tabada and the
accused Rodegelio Turco, Jr. are sweethearts. In the case of People vs.
Casil, 241 SCRA 285, the Supreme Court agrees with the trial court that the
"sweetheart story" was a mere concoction of appellant in order to exculpate
himself from criminal liability. The claim of voluntary love affair is an
affirmative defense, the allegation of a love affair needed proof. Nowhere in
the record of the case that the same was substantiated, though mentioned by
Mrs. Leonora Cabase. The accused and/or his witnesses must present any
token of the alleged relationship like love notes, mementos or pictures and the
like. Such bare allegation of the defense, not to mention its utter lack of proof,
is incredulous. It is hard to understand how such a relationship could
exculpate a person from the rape of a terrified young child barely a little over
the age of twelve (12) years old. Indeed, a love relationship, even if true, will
not necessarily rule out force (People vs. Sergio Betonio, G.R. No. 119165,
September 26, 1997, Case Digests of Supreme Court Decisions, Vol. 36, No.
3, September 1-29, 1997, pp. 695-697).

There are guiding principles in rape cases as cited in People vs. Victor
Abrecinoz, G.R. No. 122474, October 17, 1997, Case Digests of Supreme
Court Decisions, Vol. 37, No. 1, October 2-31, 1997, pp. 157-160, and they
are: (1) an accusation for rape can be made with facility, it is difficult to prove
but more difficult for the person accused, though innocent, to disprove it; (2) in
view of the intrinsic nature of the crime of rape where two persons are usually
involved, the testimony of the complainant must be scrutinized with extreme
caution; and (3) the evidence for the prosecution must stand or fall on its own
merit, and cannot be allowed to draw strength from the weakness of the
evidence for the defense. Thus, the credibility of the complainant is a
paramount importance, and if her testimony proves credible, the accused may
be convicted on the basis thereof.
It should be noted that the complainant and the accused are second degree
cousin or they are sixth civil degree relatives. The mother of the accused is a
first degree cousin of the father of the complainant. In the culture of the
Filipino family on extended family, the relationship between the complainant
and the accused being only second degree cousin, it becomes the duty of an
older relative (the accused) to protect and care for a younger relative (the
complainant). It is very hard to understand or comprehend why a cousin files a
case of rape against her cousin, unless it is true. There is no showing that
there was compelling motive why the case be filed against the accused,
except that the rape really happened.

xxx
xxx
xxx

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

xxx
xxx
xxx

WHEREFORE, under the above circumstances and evaluation, this court

finds the accused "GUILTY" of rape and sentences him to suffer the penalty of
reclusion perpetua and to indemnify the complainant the amount of Fifty
Thousand Pesos (P50,000.00) for moral damages without subsidiary
imprisonment in case of insolvency.

xxx
xxx
xxx

(pp. 33-37, Rollo.)

In accused-appellant's brief, he assigns the following alleged errors:

I

THAT THE HONORABLE COURT A QUO SERIOUSLY ERRED IN

FINDING THE ACCUSED GUILTY OF RAPE BASED ON THE
TESTIMONIES OF THE COMPLAINANT ESCELEA TABADA AND HER
WITNESS.
 II

THAT THE HONORABLE COURT A QUO SERIOUSLY ERRED IN

RULING THAT THE PROSECUTION, BASED ON THE AFFIDAVITS
AND ORAL TESTIMONIES OF THE COMPLAINANT AND ITS
WITNESSES WAS ABLE TO PROVED [sic] BEYOND REASONABLE
DOUBT THAT THE ACCUSED COMMITTED THE CRIME OF RAPE
AGAINST THE COMPLAINANT.
III

THAT THE HONORABLE COURT A QUO SERIOUSLY ERRED IN

SENTENCING THE ACCUSED TO SUFFER THE PENALTY OF
RECLUSION PERPETUA AND TO INDEMNIFY THE COMPLAINANT
THE AMOUNT OF P50,000.00 REPRESENTING MORAL DAMAGES
BASED ON THE EVIDENCES PRESENTED BY THE PROSECUTION.

(p. 101, Rollo.)

He particularly argues that his conviction is not supported by proof beyond reasonable
doubt considering that other than the written statement of the complainant before the
Police Station of Isabela and before the Clerk of Court of the Municipal Trial Court, and
her testimony during direct examination, no other evidence was presented to conclusively
prove that there was ever rape at all; that she only presumed that it was accused-
appellant who attacked her since she admitted that immediately upon opening the door,
the perpetrator hastily covered her face with a towel; that nothing in her testimony clearly
and convincingly shows that she was able to identify accused-appellant as the
perpetrator; that complainant implicated accused-appellant only because her father
forced her to do so; and lastly, that no actual proof was presented that the rape of the
complainant actually happened considering that although a medical certificate was
presented, the medico-legal officer who prepared the same was not presented in court to
explain the same.
We agree with the trial court.
As aptly recalled by the trial court, there are three guiding principles in the review of
rape cases, to wit: (1) an accusation of rape can be made with facility; it is difficult to prove
but more difficult for the person accused, although innocent, to disprove; (2) in view of the
intrinsic nature of the crime of rape where only two persons are usually involved, the
testimony of the complainant is scrutinized with extreme caution; and (3) the evidence for
the prosecution stands or falls on its own merits and cannot be allowed to draw strength
from the weakness of the defense (People vs. Gallo, 284 SCRA 590 [1998]; People vs.
Balmoria, 287 SCRA 687 [1998]; People vs. Auxtero, 289 SCRA 75 [1998]; People vs.
Sta. Ana, 291 SCRA 188 [1998]).
Accordingly, the primordial consideration in a determination concerning the crime of
rape is the credibility of complainant's testimony.
The trial court described complainant as "a young girl, a little over twelve (12) years
old and almost illiterate, having attended school up to Grade III only. So poor that her
family cannot even buy the cheapest television set and she has to go to a house of a
neighbor for the meager joy of seeing a television show ... and exposes herself to the
danger of the dark night." But verily, age, youth, and poverty are not guarantees of
credibility. Hence, thorough scrutiny must be made by the Court.
Complainant narrated the incident in this wise:
Q While you went upstairs and about to enter the room of your grandmother, did you hear
anything?
A Yes, sir.
Q What was that?
A I heard a call, sir.
Q How was the call made?
A It is just by saying: "Lea".
Q After you heard your name was mentioned, what did you say if any?
A I answered: "Who is that?"
Q Did the person calling your name answer you?
A I heard, sir, "me Totong".
Q When you say the person who called your name "Lea" was "Totong", you are referring to
whom?
A Rodegelio, sir.
Q When you say "Rodegelio", you are referring to Rodegelio Turco, Jr., the accused in this
case?
A Yes, sir.
Q After the person calling your name "Lea" identified himself as "Totong", what did you do?
A I opened the door, sir.
Q And when you opened the door, what happened next?
A Totong with the use of towel covered my face, sir.
Q Aside from covering your face with a towel, what else did he do?
A He covered my mouth, sir.
Q Aside from covering your mouth, what else did he do?
A He placed his right hand on my neck, sir.
Q Aside from placing his right hand ... when he placed his right hand on your neck, where was
he? Was he infront or behind?
A He was at my back, sir.
Q After placing his right hand on your neck behind you, what did "Totong" do next with that
position?
A He covered my mouth, sir.
Q After covering your mouth and face, what did he do next?
A He told me to walk, sir.
Q Where did he bring you?
A I don't know exactly where he brought me, sir.
Q But you know very well that he brought you to a certain place?
A I don't know exactly the place where he brought me, sir.
Q Is it far from your house where you were forcibly taken?
A Yes, sir.
Q Do you have a copra kiln?
ATTY. G.V. DELA PENA III:
The witness already answered that she does not know where she was brought, leading, Your
Honor.
COURT: (Questioning the witness)
Q According to you, from your house you were brought by the accused to a place which you
do not know?
A Yes, Your Honor.
Q What place?
A Pig pen, Your Honor.
Q Do you know the owner, of that pig pen?
A Our pig pen, Your Honor.
Q Who owned that pig pen?
A My father, Your Honor.
Q How far is that pig pen to your house?
A (From this witness stand to that road outside of this building).
COURT:
It is about 12 meters. Alright, continue.
PROSECUTOR M.L. GENERALAO: (Continuing)
Q You stated in answer to the question of the Honorable Court that you were brought to the
pig pen or the place where you were sexually abused, were you place inside or outside?
ATTY. G.V. DELA PENA III:
Leading, Your Honor.
PROSECUTOR M.L. GENERALAO:
I will withdraw.
Q Will you please explain to the Court what particular place of the pig pen that you were
brought by the accused?
A Inside the grasses, sir.
Q When you were already inside the grasses near this pig pen, what did the accused do to
you?
A He put me down, sir.
Q When you were already down on the ground, what did the accused do next?
A He mounted on me, sir.
Q And when the accused was already on top of you, what did he do next?
A He molested me, sir.
Q Before he molested you, did he remove anything from your body?
A Yes, sir.
Q What?
A My shortpants and panty, sir.
Q You stated that the accused while on top of you removed your pants and panty, did he totally
remove it from your body?
A Yes, sir.
Q After removing your shortpants and panty, what else did the accused do?
A He abused me, sir.
Q You said that he abused you, how did he abuse your?
A He put his private part inside my private part, sir.
Q When the accused was on top of you and he forcibly abused you, what did you do?
A I tried to move my body, sir.
Q While you were trying to move your body and while the accused was on top of you, what did
the accused do?
A He tried to insert his private part to my private part, sir.
Q And was he able to insert his private part?
A Yes, sir.
Q What did you feel when his private part was already inside your private part?
A I felt pain, sir.
Q Will you please explain why you felt when the private part of the accused was already inside
your private part?
A I felt pain when he already finished, sir.
 Q By the way, before July 8, 1995, were you had been raped? Will you please tell us whether
you have already experienced or you have already your menstruation at that time?
A No, sir.
Q Now you stated to the Honorable Court ... after the accused had sexually abused you and
you said you felt pains after he consumated the sexual act, after that what did he do next
after consumating the act?
A After consumating his desire, he raised my panty and shortpants then he kissed me and hold
my nipple, sir.
Q After the accused had raised your shortpants and panty, embraced you, kissed you and hold
your breast, did he tell you anything?
A He threatened me, "that if you will reveal the incident to anybody I will kill you."
Q In what dialect? In Chavacano, sir.
A After the accused embraced you, kissed you and hold your nipple and threatened you in
Chavacano dialect, what happened next after that?
No more, sir.

(tsn, Aug. 19, 1996, pp. 14-

22.)

On cross-examination, the victim did display some apparent confusion when the
defense counsel asked her about the events that transpired before the ill-fated July 8,
1995. The query prompted her to narrate the incident prior to said date when she also
watched television at the home of Leonora Cabase, and that when she arrived home,
accused-appellant came and called her "Lea" and when she asked who was it, he
answered "so Totong". When she asked what he wanted, he said he wanted to borrow a
guitar. She said that she could not lend him the guitar since her father was not yet around.
He insisted but to no avail, and hence he just went home. She went to sleep afterwards.
On re-direct examination, she clarified that when accused-appellant came to borrow the
guitar on July 8, 1995, it was about 5:30 o'clock in the afternoon. Lastly, she said that the
incident of the borrowing of the guitar and the incident that transpired at 7 o'clock in the
evening on July 8, 1995 were separate incidents.
Significantly, three things could be perceived: complainant's youth, her apparent
confusion concerning the events that transpired, and her fear of both accused-appellant
and her father.
At the outset, it should be remembered that the declarations on the witness stand of
rape victims who are young and immature deserve full credence (People vs.
Bernaldez, 294 SCRA 317 [1998]). Succinctly, when the offended parties are young and
immature girls from the ages of twelve to sixteen, courts are inclined to lend credence to
their version of what transpired, considering not only their relative vulnerability but also
the shame and embarrassment to which they would be exposed by court trial if the matter
about which they testified were not true (People vs. Clopino, 290 SCRA 432 [1998]). In
addition, we take cognizance of the trial court's observation on the segment of the Filipino
society to which the victim belongs - almost illiterate, having attended school up to the
third grade only, and so poor that she had to go to a neighbor's house to watch television,
yet one who values her virginity which like a "mirror, once dropped and broken ... can no
longer be pieced together ... not ever," this being "true among the Filipino folks [to which]
complainant belonged, poor and helpless everything is entrusted to God" (p. 35, Rollo).
The victim's relatively low level of intelligence explains the lapses in her testimony,
having intermingled two incidents. Nonetheless, it can easily be gathered from the record
that the defense counsel may have contributed to this confusion when he asked the victim
what transpired "before" the incident (tsn, August 19, 1996, p. 37). Minor lapses in a
witness' testimony should be expected when a person recounts details of an experience
so humiliating and so painful to recall as rape (People vs. Gementiza, 285 SCRA 478
[1998]).Rape, as a harrowing experience, is usually not remembered in detail. For, such
an offense is not something which enhances one's life experience as to be worth recalling
or reliving but, rather, something which causes deep psychological wounds and casts a
stigma upon the victim for the rest of her life, which her conscious or subconscious mind
would prefer to forget (People vs. Garcia, 281 SCRA 463 [1997]). These lapses do not
detract from the overwhelming testimony of a prosecution witness positively identifying
the malefactor (People vs. Baccay, 284 SCRA 296 [1998]). Further, the testimony of a
witness must be considered and calibrated in its entirety and not by truncated portions
thereof or isolated passages therein (People vs. Natan, 193 SCRA 355 [1991]).
The Court finds that the victim had no motive to falsely testify against accused-
appellant. Her testimony deserves the credence accorded thereto by the trial
court (People vs. Luzorata, 286 SCRA 487 [1998]). Pertinently, no woman, especially one
of tender age, would concoct a story of defloration, allow an examination of her private
parts, and thereafter pervert herself by being subjected to a public trial if she was not
motivated solely by the desire to have the culprit apprehended and punished (People vs.
Taneo, 284 SCRA 251 [1998]).
Another point to consider is the blood relationship between accused-appellant and
the victim. At this juncture, we reiterate the trial court's observation thereon - the mother
of accused-appellant being a first degree cousin of the victim's father, that makes the
victim and accused-appellant second degree cousins or sixth civil degree relatives.
Filipino culture, particularly in the provinces, looks at the extended family as closely-knit
and recognizes the obligation of an older relative to protect and take care of a younger
one. On the contrary, in the instant case, the victim initiated the prosecution of her cousin.
If the charge were not true, it is indeed difficult to understand why the victim would charge
her own cousin as the malefactor. Too, she having no compelling motive to file said case
against accused-appellant, the conclusion that the rape really happened is logically
reinforced.
As regards the initial delay of the victim in reporting the rape incident, suffice it to
state that the delay and initial reluctance of a rape victim to make public the assault on
her virtue is not uncommon (People vs. Gallo, supra). In the case at bar, the victim's fear
of her father who had moral ascendancy over her, was explicit. She testified that she did
not disclose the incident to her father because of fear both of her father as well as of
accused-appellant (tsn, August 19, 1996, pp. 23-24). Such reaction is typical of a twelve-
year-old girl and only strengthens her credibility.
The issue of credibility of the victim having been settled, there are a few points
presented by the defense that must be passed upon:
1. Other than their blood relationship, was there an intimate relationship between
accused-appellant and the victim? The theory initially advanced by the defense in the
proceedings before the court a quo is the "sweetheart theory". In this regard, .we agree
with the trial court that the "sweetheart story" was a mere concoction of accused-appellant
in order to exculpate himself from criminal liability. In People vs. Venerable (290 SCRA
15 [1998]), we held that the sweetheart theory of the accused was unavailing and self-
serving where he failed to introduce love letters, gifts, and the like to attest to his alleged
amorous affair with the victim. Hence, the defense cannot just present testimonial
evidence in support of the theory that he and the victim were sweethearts. Independent
proof is necessary, such as tokens, mementos, and photographs. It is likewise
remarkable, a confession possibly of the bankruptcy of this theory that accused-appellant
has not insisted on this defense in his brief, seemingly abandoning this line.
We, therefore, conclude that whatever familiarity and supposed closeness there was
between accused-appellant and the victim, is explained not by an intimate relationship
but by their blood relationship. Hence, it is noticeable that on the day of the incident, when
accused-appellant called upon the victim and the latter asked who he was, the victim
knew right away that her caller was accused-appellant when the latter replied "Si Totong".
Accused-appellant, in his direct testimony, tried to deny any blood relation with the
victim Escelea Tabada and touched on the apparent friendship between them, as follows:
Q You mentioned earlier that you know the complainant, why do you know the complainant
Escelea Tabada?
A I only know her when I was already in jail, sir.
Q You mean to say that you never knew the complainant before you were arrested?
A I do not know her, sir.
 COURT: (Questioning the witness)
Q Why, are you not related to the Tabadas?
A No, Your Honor.
ATTY. G.V. DELA PENA III: (Continuing)
Q Have you ever seen the complainant in Begang?
A The complainant is at Begang, sir.
Q And you mentioned that you were not related with the complainant, Mr. Witness?
A Yes, sir, we are only close.
Q So, in other words, Mr. Witness, you and the complainant Escelea Tabada were already
friends?
A Yes, sir.

(tsn, June 16, 1998, pp. 42-

43.)

However, on cross-examination, he notably crumbled:

Q Now, you stated in your direct examination that you are not related to the Tabadas in San
Antonio Begang, Isabela, Basilan, is that right?
A Yes, sir, we are only close.
Q Is it not a fact Mr. Witness that your mother is the first cousin of the father of Escelea
Tabada?
A They are cousins, sir.
Q So, indeed you are related to the Tabadas?
A Yes, sir.
Q So, when you said that you are not related to the Tabadas, you were not telling the truth?
A Yes, sir.
(ibid, p. 51.)
2. Accused-appellant argues that no actual proof was presented that the rape actually
happened since the medico-legal officer who prepared the medical certificate was not
presented in court to explain the same.
In People vs. Bernaldez (supra), the court a quo erred in giving weight to the medical
certificate issued by the examining physician despite the failure of the latter to testify.
While the certificate could be admitted as an exception to the hearsay rule since entries
in official records (under Section 44, Rule 130, Rules of Court) constitute exceptions to
the hearsay evidence rule, since it involved an opinion of one who must first be
established as an expert witness, it could not be given weight or credit unless the doctor
who issued it is presented in court to show his qualifications. We place emphasis on the
distinction between admissibility of evidence and the probative value thereof. Evidence is
admissible when it is relevant to the issue and is not excluded by the law or the rules
(Section 3, Rule 128, Rules of Court) or is competent. Since admissibility of evidence is
determined by its relevance and competence, admissibility is, therefore, an affair of logic
and law. On the other hand, the weight to be given to such evidence, once admitted,
depends on judicial evaluation within the guidelines provided in Rule 133 and the
jurisprudence laid down by the Court. Thus, while evidence may be admissible, it may be
entitled to little or no weight at all. Conversely, evidence which may have evidentiary
weight may be inadmissible because a special rule forbids its
reception (Regalado, Remedial Law Compendium, Vol. II, 1998 ed., p. 550).
Withal, although the medical certificate is an exception to the hearsay rule, hence
admissible as evidence, it has very little probative value due to the absence of the
examining physician. Nevertheless, it cannot be said that the prosecution relied solely on
the medical certificate (stating that there was "[h]ymen rupture, secondary to penile
insertion" as well as "foul-smelling discharges." The diagnosis was "[r]uptured hymen
secondary to rape" [p. 68, Record]). In fact, reliance was made on the testimony of the
victim herself which, standing alone even without medical examination, is sufficient to
convict (People vs. Topaguen, 369 SCRA 601 [1997]). It is well-settled that a medical
examination is not indispensable in the prosecution of rape (People vs. Lacaba, G.R. No.
130591, November 17, 1999; People vs. Salazar, 258 SCRA 55 [1996]; People vs.
Venerable, supra). The absence of medical findings by a medico-legal officer does not
disprove the occurrence of rape (People vs. Taneo, supra). It is enough that the evidence
on hand convinces the court that conviction is proper (People vs. Auxtero, supra). In the
instant case, the victim's testimony alone is credible and sufficient to convict.
As a final observation, it must be said that the amount awarded by the trial court in
favor of Escelea Tabada as indemnification (P50,000.00 for moral damages) for the rape
is incomplete based on established jurisprudence and must be modified. In People vs.
Betonio (279 SCRA 532 [1977]), we held that the award of P50,000.00 to the victim as
indemnity for rape not committed or qualified by any of the circumstances under the Death
Penalty Law, needs no proof other than the conviction of the accused for the raped
proved. This is different from the P50,000.00 awarded as moral damages which also
needs no pleading or proof as basis thereof (People vs. Prades, 293 SCRA 411 [1998]).
WHEREFORE, the appealed decision is hereby AFFIRMED, with the
MODIFICATION that accused-appellant Rodegelio Turco, Jr. aka "Totong" is ordered to
indemnify the offended party, Escelea Tabada, in the amount of Fifty Thousand
(P50,000.00) Pesos in addition to the sum of P50,000.00 already awarded by the trial
court as moral damages.
SO ORDERED.

G.R. No. L-69809 October 16, 1986

EDGARDO A. GAANAN, petitioner,

vs.
INTERMEDIATE APPELLATE COURT and PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.:

This petition for certiorari asks for an interpretation of Republic Act (RA) No. 4200, otherwise known
as the Anti-Wiretapping Act, on the issue of whether or not an extension telephone is among the
prohibited devices in Section 1 of the Act, such that its use to overhear a private conversation would
constitute unlawful interception of communications between the two parties using a telephone line.

The facts presented by the People and narrated in the respondent court's decision are not disputed
by the petitioner.

In the morning of October 22, 1975, complainant Atty. Tito Pintor and his client
Manuel Montebon were in the living room of complainant's residence discussing the
terms for the withdrawal of the complaint for direct assault which they filed with the
Office of the City Fiscal of Cebu against Leonardo Laconico. After they had decided
on the proposed conditions, complainant made a telephone call to Laconico (tsn,
August 26, 1981, pp. 3-5).

That same morning, Laconico telephoned appellant, who is a lawyer, to come to his
office and advise him on the settlement of the direct assault case because his regular
lawyer, Atty. Leon Gonzaga, went on a business trip. According to the request,
appellant went to the office of Laconico where he was briefed about the problem.
(Exhibit 'D', tsn, April 22, 1982, pp. 4-5).

When complainant called up, Laconico requested appellant to secretly listen to the
telephone conversation through a telephone extension so as to hear personally the
proposed conditions for the settlement. Appellant heard complainant enumerate the
following conditions for withdrawal of the complaint for direct assault.

(a) the P5,000.00 was no longer acceptable, and that the figure had been increased
to P8,000.00. A breakdown of the P8,000.00 had been made together with other
demands, to wit: (a) P5,000.00 no longer for the teacher Manuel Montebon, but for
Atty. Pintor himself in persuading his client to withdraw the case for Direct Assault
against Atty. Laconico before the Cebu City Fiscal's Office;
 (b) Public apology to be made by Atty. Laconico before the students of Don Bosco
Technical High School;

(c) Pl,000.00 to be given to the Don Bosco Faculty club;

(d) transfer of son of Atty. Laconico to another school or another section of Don
Bosco Technical High School;

(e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier filed
against Manuel Montebon at the Cebu City Fiscal's Office, whereas Montebon's
affidavit of desistance on the Direct Assault Case against Atty. Laconico to be filed
later;

(f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical School;

(g) Not to divulge the truth about the settlement of the Direct Assault Case to the
mass media;

(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-48).

Twenty minutes later, complainant called up again to ask Laconico if he was

agreeable to the conditions. Laconico answered 'Yes'. Complainant then told
Laconico to wait for instructions on where to deliver the money. (tsn, March 10, 1983,
pp. 2-12).

Complainant called up again and instructed Laconico to give the money to his wife at
the office of the then Department of Public Highways. Laconico who earlier alerted
his friend Colonel Zulueta of the Criminal Investigation Service of the Philippine
Constabulary, insisted that complainant himself should receive the money. (tsn,
March 10, 1982, pp. 26-33). When he received the money at the Igloo Restaurant,
complainant was arrested by agents of the Philippine Constabulary.

Appellant executed on the following day an affidavit stating that he heard

complainant demand P8,000.00 for the withdrawal of the case for direct assault.
Laconico attached the affidavit of appellant to the complainant for robbery/extortion
which he filed against complainant. Since appellant listened to the telephone
conversation without complainant's consent, complainant charged appellant and
Laconico with violation of the Anti-Wiretapping Act.

After trial on the merits, the lower court, in a decision dated November 22, 1982, found both Gaanan
and Laconico guilty of violating Section 1 of Republic Act No. 4200. The two were each sentenced to
one (1) year imprisonment with costs. Not satisfied with the decision, the petitioner appealed to the
appellate court.

On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial court, holding
that the communication between the complainant and accused Laconico was private in nature and,
therefore, covered by Rep. Act No. 4200; that the petitioner overheard such communication without
the knowledge and consent of the complainant; and that the extension telephone which was used by
the petitioner to overhear the telephone conversation between complainant and Laconico is covered
in the term "device' as provided in Rep. Act No. 4200.

In this petition for certiorari, the petitioner assails the decision of the appellate court and raises the
following issues; (a) whether or not the telephone conversation between the complainant and
accused Laconico was private in nature; (b) whether or not an extension telephone is covered by the
term "device or arrangement" under Rep. Act No. 4200; (c) whether or not the petitioner had
authority to listen or overhear said telephone conversation and (d) whether or not Rep. Act No. 4200
is ambiguous and, therefore, should be construed in favor of the petitioner.

Section 1 of Rep. Act No. 4200 provides:

Section 1. It shall be unlawful for any person, not being authorized by all the parties
to any private communication or spoken word, to tap any wire or cable or by using
any other device or arrangement, to secretly overhear, intercept, or record such
communication or spoken word by using a device commonly known as a dictaphone
or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however
otherwise described:

It shall be unlawful for any person, be he a participant or not in the act or acts
penalized in the next preceeding sentence, to knowingly possess any tape record,
 wire record, disc record, or any other such record, or copies thereof, of any
communication or spoken word secured either before or after the effective date of
this Act in the manner prohibited by this law; or to replay the same for any other
person or persons; or to communicate the contents thereof, either verbally or in
writing, or to furnish transcriptions thereof, whether complete or partial, to any other
person: Provided, that the use of such record or any copies thereof as evidence in
any civil, criminal investigation or trial of offenses mentioned in Section 3 hereof,
shall not be covered by this prohibition.

We rule for the petitioner.

We are confronted in this case with the interpretation of a penal statute and not a rule of evidence.
The issue is not the admissibility of evidence secured over an extension line of a telephone by a
third party. The issue is whether or not the person called over the telephone and his lawyer listening
to the conversation on an extension line should both face prison sentences simply because the
extension was used to enable them to both listen to an alleged attempt at extortion.

There is no question that the telephone conversation between complainant Atty. Pintor and accused
Atty. Laconico was "private" in the sense that the words uttered were made between one person and
another as distinguished from words between a speaker and a public. It is also undisputed that only
one of the parties gave the petitioner the authority to listen to and overhear the caller's message with
the use of an extension telephone line. Obviously, complainant Pintor, a member of the Philippine
bar, would not have discussed the alleged demand for an P8,000.00 consideration in order to have
his client withdraw a direct assault charge against Atty. Laconico filed with the Cebu City Fiscal's
Office if he knew that another lawyer was also listening. We have to consider, however, that
affirmance of the criminal conviction would, in effect, mean that a caller by merely using a telephone
line can force the listener to secrecy no matter how obscene, criminal, or annoying the call may be. It
would be the word of the caller against the listener's.

Because of technical problems caused by the sensitive nature of electronic equipment and the extra
heavy loads which telephone cables are made to carry in certain areas, telephone users often
encounter what are called "crossed lines". An unwary citizzen who happens to pick up his telephone
and who overhears the details of a crime might hesitate to inform police authorities if he knows that
he could be accused under Rep. Act 4200 of using his own telephone to secretly overhear the
private communications of the would be criminals. Surely the law was never intended for such
mischievous results.

The main issue in the resolution of this petition, however, revolves around the meaning of the phrase
"any other device or arrangement." Is an extension of a telephone unit such a device or arrangement
as would subject the user to imprisonment ranging from six months to six years with the accessory
penalty of perpetual absolute disqualification for a public officer or deportation for an alien? Private
secretaries with extension lines to their bosses' telephones are sometimes asked to use answering
or recording devices to record business conversations between a boss and another businessman.
Would transcribing a recorded message for the use of the boss be a proscribed offense? or for that
matter, would a "party line" be a device or arrangement under the law?

The petitioner contends that telephones or extension telephones are not included in the enumeration
of "commonly known" listening or recording devices, nor do they belong to the same class of
enumerated electronic devices contemplated by law. He maintains that in 1964, when Senate Bill
No. 9 (later Rep. Act No. 4200) was being considered in the Senate, telephones and extension
telephones were already widely used instruments, probably the most popularly known
communication device.

Whether or not listening over a telephone party line would be punishable was discussed on the floor
of the Senate. Yet, when the bill was finalized into a statute, no mention was made of telephones in
the enumeration of devices "commonly known as a dictaphone or dictagraph, detectaphone or
walkie talkie or tape recorder or however otherwise described." The omission was not a mere
oversight. Telephone party lines were intentionally deleted from the provisions of the Act.

The respondent People argue that an extension telephone is embraced and covered by the term
"device" within the context of the aforementioned law because it is not a part or portion of a complete
set of a telephone apparatus. It is a separate device and distinct set of a movable apparatus
consisting of a wire and a set of telephone receiver not forming part of a main telephone set which
can be detached or removed and can be transferred away from one place to another and to be
plugged or attached to a main telephone line to get the desired communication corning from the
other party or end.

The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the purpose of
secretly overhearing, intercepting, or recording the communication. There must be either a physical
interruption through a wiretap or the deliberate installation of a device or arrangement in order to
overhear, intercept, or record the spoken words.

An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the
other devices enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as
"tapping" the wire or cable of a telephone line. The telephone extension in this case was not installed
for that purpose. It just happened to be there for ordinary office use. It is a rule in statutory
construction that in order to determine the true intent of the legislature, the particular clauses and
phrases of the statute should not be taken as detached and isolated expressions, but the whole and
every part thereof must be considered in fixing the meaning of any of its parts. (see Commissioner of
Customs v. Esso Estandard Eastern, Inc., 66 SCRA 113,120).

In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443-444), we ruled:

Likewise, Article 1372 of the Civil Code stipulates that 'however general the terms of
a contract may be, they shall not be understood to comprehend things that are
distinct and cases that are different from those upon which the parties intended to
agree.' Similarly, Article 1374 of the same Code provides that 'the various
stipulations of a contract shall be interpreted together, attributing to the doubtful ones
that sense which may result from all of them taken jointly.

xxx xxx xxx

Consequently, the phrase 'all liabilities or obligations of the decedent' used in

paragraph 5(c) and 7(d) should be then restricted only to those listed in the Inventory
and should not be construed as to comprehend all other obligations of the decedent.
The rule that 'particularization followed by a general expression will ordinarily be
restricted to the former' is based on the fact in human experience that usually the
minds of parties are addressed specially to the particularization, and that the
generalities, though broad enough to comprehend other fields if they stood alone, are
used in contemplation of that upon which the minds of the parties are centered.
(Hoffman v. Eastern Wisconsin R., etc., Co., 134 Wis. 603, 607, 115 NW 383, cited
in Francisco, Revised Rules of Court (Evidence), 1973 ed, pp. 180-181).

Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not exclusive to
that enumerated therein, should be construed to comprehend instruments of the same or similar
nature, that is, instruments the use of which would be tantamount to tapping the main line of a
telephone. It refers to instruments whose installation or presence cannot be presumed by the party
or parties being overheard because, by their very nature, they are not of common usage and their
purpose is precisely for tapping, intercepting or recording a telephone conversation.

An extension telephone is an instrument which is very common especially now when the extended
unit does not have to be connected by wire to the main telephone but can be moved from place ' to
place within a radius of a kilometer or more. A person should safely presume that the party he is
calling at the other end of the line probably has an extension telephone and he runs the risk of a
third party listening as in the case of a party line or a telephone unit which shares its line with
another. As was held in the case of Rathbun v. United States (355, U.S. 107, 2 L Ed 2d 137-138):

Common experience tells us that a call to a particular telephone number may cause
the bell to ring in more than one ordinarily used instrument. Each party to a
telephone conversation takes the risk that the other party may have an extension
telephone and may allow another to overhear the conversation. When such takes
place there has been no violation of any privacy of which the parties may complain.
Consequently, one element of 605, interception, has not occurred.

In the same case, the Court further ruled that the conduct of the party would differ in no way if
instead of repeating the message he held out his hand-set so that another could hear out of it and
that there is no distinction between that sort of action and permitting an outsider to use an extension
telephone for the same purpose.

Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the
accused. Thus, in case of doubt as in the case at bar, on whether or not an extension telephone is
included in the phrase "device or arrangement", the penal statute must be construed as not including
an extension telephone. In the case of People v. Purisima, 86 SCRA 542, 562, we explained the
rationale behind the rule:

American jurisprudence sets down the reason for this rule to be the tenderness of the
law of the rights of individuals; the object is to establish a certain rule by conformity to
which mankind would be safe, and the discretion of the court limited. (United States
 v. Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v. Virgin Islands (CA3) 26
F2d 646; Caudill v. State, 224 Ind 531, 69 NE2d; Jennings v. Commonwealth, 109
VA 821,63 SE 1080, all cited in 73 Am Jur 2d 452). The purpose is not to enable a
guilty person to escape punishment through a technicality but to provide a precise
definition of forbidden acts." (State v. Zazzaro, 20 A 2d 737, quoted in Martin's
Handbook on Statutory Construction, Rev. Ed. pp. 183-184).

In the same case of Purisima, we also ruled that on the construction or interpretation of a legislative
measure, the primary rule is to search for and determine the intent and spirit of the law. A perusal of
the Senate Congressional Records will show that not only did our lawmakers not contemplate the
inclusion of an extension telephone as a prohibited device or arrangement" but of greater
importance, they were more concerned with penalizing the act of recording than the act of merely
listening to a telephone conversation.

xxx xxx xxx

Senator Tañada. Another possible objection to that is entrapment

which is certainly objectionable. It is made possible by special
amendment which Your Honor may introduce.

Senator Diokno.Your Honor, I would feel that entrapment would be

less possible with the amendment than without it, because with the
amendment the evidence of entrapment would only consist of
government testimony as against the testimony of the defendant.
With this amendment, they would have the right, and the government
officials and the person in fact would have the right to tape record
their conversation.

Senator Tañada. In case of entrapment, it would be the government.

Senator Diokno. In the same way, under this provision, neither party
could record and, therefore, the court would be limited to saying:
"Okay, who is more credible, the police officers or the defendant?" In
these cases, as experienced lawyers, we know that the Court go with
the peace offices.

(Congressional Record, Vol. 111, No. 33, p. 628, March 12, 1964).

xxx xxx xxx

Senator Diokno. The point I have in mind is that under these

conditions, with an agent outside listening in, he could falsify the
testimony and there is no way of checking it. But if you allow him to
record or make a recording in any form of what is happening, then the
chances of falsifying the evidence is not very much.

Senator Tañada. Your Honor, this bill is not intended to prevent the
presentation of false testimony. If we could devise a way by which we
could prevent the presentation of false testimony, it would be
wonderful. But what this bill intends to prohibit is the use of tape
record and other electronic devices to intercept private conversations
which later on will be used in court.

(Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629).

It can be readily seen that our lawmakers intended to discourage, through punishment, persons such
as government authorities or representatives of organized groups from installing devices in order to
gather evidence for use in court or to intimidate, blackmail or gain some unwarranted advantage
over the telephone users. Consequently, the mere act of listening, in order to be punishable must
strictly be with the use of the enumerated devices in RA No. 4200 or others of similar nature. We are
of the view that an extension telephone is not among such devices or arrangements.

WHEREFORE, the petition is GRANTED. The decision of the then Intermediate Appellate Court
dated August 16, 1984 is ANNULLED and SET ASIDE. The petitioner is hereby ACQUITTED of the
crime of violation of Rep. Act No. 4200, otherwise known as the Anti-Wiretapping Act.

SO ORDERED.
 SUPREME COURT
Baguio City

SECOND DIVISION

G.R. Nos. 173148 April 6, 2015

ELSA DEGAYO, Petitioner,

vs.
CECILIA MAGBANUA-DINGLASAN, JOHNNY DINGLASAN, ASUNCION MAGBANUA-PORRAS,
MARIANO P ASCUALITO and AMADO JR., all surnamed MAGBANUA, Respondents.

DECISION

BRION, J.:

Before us is the Petition for Review on Certiorari filed by the petitioner Elsa Degayo (Degayo) under
Rule 45 of the Rules of Court, assailing the Decision1 dated November 7, 2005 and the
Resolution2 dated May 19, 2006 of the Court of Appeals (CA) in CA-G.R. CV No. 62070.

The Factual Antecedents

The present case involves a property dispute, which gave rise to two civil cases for ownership and
damages between conflicting claimants over a parcel of land located on the northeastern bank of
Jalaud River. The respondents Cecilia Magbanua-Dinglasan, Johnny Dinglasan, Pascualito
Magbanua, Mariano Magbanua, Asuncion Magbanua-Porras, Amado Magbanua Jr. (respondents)
initiated the first civil case against Nicolas Jarencio, Cesar Jarencio, Myrna Olmo, Fredercio
Sumvilla, Herminio Sumvilla, Perpetuo Larano and Angelo Larano, the tenants (tenants) of Lot No.
861. Degayo, on the other hand, initiated the second civil case, which eventually reached this Court
via the present petition.

Records show that Lot No. 861 isa 36,864 sqm. parcel in the Cadastral Survey of Dingle, Iloilo,
covered by Transfer Certificate of Title (TCT) No. T-2804, registered in the name of Degayo’s
deceased parents, spouses Marcelo Olmo and Rosalia Labana. Lot No. 861 used to be bounded on
the southwest by the Jalaud River that serves to separate Dingle from Pototan Iloilo.

On the other side of Jalaud River, opposite Lot No. 861, lies a 153,028 square meter parcel of land,
designated as Lot No. 7328 of the Cadastre of Pototan, Iloilo, collectively owned by the respondents,
covered under TCT No. T-84829. The Jalaud River, which separates these parcels of land, thus
flows along the northeast side of Lot 861 and the southwest side of Lot No. 7328. Sometime in the
1970’s the Jalauad River steadily changed its course and moved southwards towards the banks of
Pototan, where Lot No. 7328 lies, leaving its old riverbed dry. Eventually, the course of the Jalaud
River encroached on Lot No. 7328. As a result, Lot No. 7328 progressively decreased in size while
the banks adjacent to Lot No. 861 gradually increased in land area.

Degayo and the tenants believed that the area was an accretion to Lot No. 861. As a result, her
tenants, commenced cultivating and tilling that disputed area with corn and tobacco. The area
allegedly added to Lot No. 861 contains 52,528 sqm, broken down as follows:

1. 26,106 sqm. Original abandoned river bed;

2. 26,419 sqm. resurfaced area of Lot No. 7328

The respondents, on the other hand, argued that the disputed property was an abandoned riverbed,
which should rightfully belong to them to compensate for the erstwhile portion of Lot No. 7328, over
which the Jalaud River presently runs.

On October 2, 1984, the respondents filed a complaint for ownership and damages against the
tenants, with the Regional Trial Court (RTC) of Iloilo, Branch 27, entitled Cecilia Magbanua
Dinglasan, et al. v. Nicolas Jarencio, et al., docketed as Civil Case No. 16047. Degayo sought to
intervene in Civil Case No. 16047 but her motion was denied. Notably, Degayo never bothered to
question the interlocutory order denying her motion for intervention by filing a petition for certiorari.
Instead, Degayo initiated the present suit against the respondents for declaration of ownership with
damages, also with the RTC of Iloilo, Branch 22, docketed as Civil Case No. 18328, involving the
disputed parcel of land.

In her complaint, Degayo alleged to have acquired Lot No. 861 by inheritance by virtue of a
Quitclaim Deed and that she had been in possession of that land since 1954. She likewise stressed
that the area in dispute was an accretion to Lot No. 861.
Meanwhile, notwithstanding the previous denial of her motion to intervene in Civil Case No. 16047,
Degayo was able to participate in the proceedings therein as a witness for the defense. In particular,
during her direct examination, Degayo testified on the same matters and raised the same arguments
she alleged in her complaint in Civil Case No. 18328, those are: that she acquired Lot No. 861 by
inheritance by virtue of a Quitclaim Deed; that she had been in possession of that land since 1954;
and that the area in dispute was an accretion to Lot No. 861 On May 7, 1996, the RTC of Iloilo,
Branch 27, rendered its decision in Civil Case No. 16047, in favor of the respondents. The tenants
promptly filed an appeal but they failed to file an appeal brief, resulting to a dismissal of their appeal
per resolution dated June 20, 1999.3 The decision in Civil Case No. 16047 became final and
executory on August 6, 1999.4

Meanwhile, in Civil Case No. 18328, the court, a quo, found in favor of Degayo and declared the
property in question as an accretion to Lot No. 861. The respondents filed a motion for
reconsideration but their motion was denied. Hence, the respondents filed an appeal with the CA.

The CA Ruling

On November 7, 2005, the CA granted the respondents’ appeal and reversed and set aside the
decision of the RTC Branch 22 in Civil Case No. 18328. In granting the appeal the CA noted that the
disputed properties are abandoned riverbeds. Being abandoned riverbeds, the property in question
rightfully belongs to the respondents as the owners of the land now occupied by the Jalaud
River.5 The CA likewise noted that the previous RTC Branch decision in Civil Case No. 16047 is
conclusive to the title of the thing, being an aspect of the rule on conclusiveness of judgment.6

Degayo sought a reconsideration of the CA Decision but the CA denied her motion in its May 19,
2006 Resolution.7Aggrieved, Degayo filed the preset petition for review on certiorari under Rule 45
with this Court.

The Petition and Comment

Degayo’s petition is based on the following grounds/arguments:8

1. That the CA erred in declaring the disputed property as an abandoned riverbed and not an
accretion to Lot 861;

2. The CA erred in taking judicial notice of the RTC decision in Civil Case No. 16047, which
was not even presented during the hearing of the present case;

3. The CA erred in declaring the RTC Branch 27 decision in Civil Case No. 16047 conclusive
upon Degayo when she was not even a party in the said Civil Case.

In his Comment,9 the respondents assert that the petition raised questions of fact which are not
proper issues to be raised in a petition for review on certiorari.10 They also claim that the essential
requisites of accretion are not present.11 Finally, the respondents claim that the decision in Civil Case
No. 16047 constitutes res judicata.12

THE COURT'S RULING

We deny the petition for lack of merit.

The Decision in Civil Case No. 16047 constitutes res judicata.

Res judicataliterally means "a matter adjudged; a thing judicially acted upon or decided; a thing or
matter settled by judgment." It also refers to the "rule that a final judgment or decree on the merits by
a court of competent jurisdiction is conclusive of the rights of the parties or their privies in all later
suits on points and matters determined in the former suit.13 It rests on the principle that parties should
not to be permitted to litigate the same issue more than once; that, when a right or fact has been
judicially tried and determined by a court of competent jurisdiction, or an opportunity for such trial
has been given, the judgment of the court, so long as it remains unreversed, should be conclusive
upon the parties and those in privity with them in law or estate.14

This judicially created doctrine exists as an obvious rule of reason, justice, fairness, expediency,
practical necessity, and public tranquillity.15 Moreover, public policy, judicial orderliness, economy of
judicial time, and the interest of litigants, as well as the peace and order of society, all require that
stability should be accorded judgments, that controversies once decided on their merits shall remain
in repose, that inconsistent judicial decision shall not be made on the same set of facts, and that
there be an end to litigation which, without the doctrine of res judicata, would be endless.16
This principle cannot be overemphasized in light of our clogged dockets. As this Court has aptly
observed in Salud v. Court of Appeals:17

"The interest of the judicial system in preventing relitigation of the same dispute recognizes that
judicialresources are finite and the number of cases that can be heard by the court is limited. Every
dispute that is reheard means that another will be delayed. In modern times when court dockets are
filled to overflowing, this concern is of critical importance. Res judicata thus conserves scarce judicial
resources and promotes efficiency in the interest of the public at large. Once a final judgment has
been rendered, the prevailing party also has an interest in the stability of that judgment. Parties
come to the courts in order to resolve controversies; a judgment would be of little use in resolving
disputes if the parties were free to ignore it and to litigate the same claims again and again. Although
judicial determinations are not infallible, judicial error should be corrected through appeals
procedures, not through repeated suits on the same claim. Further, to allow relitigation creates the
risk of inconsistent results and presents the embarrassing problem of determining which of two
conflicting decisions is to be preferred. Since there is no reason to suppose that the second or third
determination of a claim necessarily is more accurate than the first, the first should be left
undisturbed.

In some cases the public at large also has an interest in seeing that rights and liabilities once
established remain fixed. If a court quiets title to land, for example, everyone should be able to rely
on the finality of that determination. Otherwise, many business transactions would be clouded by
uncertainty. Thus, the most important purpose of res judicata is to provide repose for both the party
litigants and the public. As the Supreme Court has observed, "res judicata thus encourages reliance
on judicial decision, bars vexatious litigation, and frees the courts to resolve other disputes."

The doctrine of res judicata is set forth in Section 47 of Rule 39 of the Rules of Court, which in its
relevant part reads:

Sec. 47. Effect of judgments or final orders. — The effect of a judgment or final order rendered by a
court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as
follows:

xxxx

(b) In other cases, the judgment or final order is, with respect to the matter directly adjudged
or as to any other matter that could have been raised in relation thereto, conclusive between
the parties and their successors in interest by title subsequent to the commencement of the
action or special proceeding, litigating for the same thing and under the same title and in the
same capacity; and

(c) In any other litigation between the same parties or their successors in interest, that only is
deemed to have been adjudged in a former judgment or final order which appears upon its
face to have been so adjudged, or which was actually and necessarily included therein or
necessary thereto.

This provision comprehends two distinct concepts of res judicata: (1) bar by former judgment and (2)
conclusiveness of judgment.

The first aspect is the effect of a judgment as a bar to the prosecution of a second action upon the
same claim, demand or cause of action.18 In traditional terminology, this aspect is known as merger
or bar; in modern terminology, it is called claim preclusion.19

The second aspect precludes the relitigation of a particular fact of issue in another action between
the same parties on a different claim or cause of action. This is traditionally known as collateral
estoppel; in modern terminology, it is called issue preclusion.20

Conclusiveness of judgment finds application when a fact or question has been squarely put in
issue, judicially passed upon, and adjudged in a former suit by a court of competent jurisdiction. The
fact or question settled by final judgment or order binds the parties to that action (and persons in
privity with them or their successors-in-interest), and continues to bind them while the judgment or
order remains standing and unreversed by proper authority on a timely motion or petition; the
conclusively settled fact or question furthermore cannot again be litigated in any future or other
action between the same parties or their privies and successors-in-interest, in the same or in any
other court of concurrent jurisdiction, either for the same or for a different cause of action.21 Thus,
only the identities of parties and issues are required for the operation of the principle of
conclusiveness of judgment.22

While conclusiveness of judgment does not have the same barring effect as that of a bar by former
judgment that proscribes subsequent actions, the former nonetheless estops the parties from raising
in a later case the issues or points that were raised and controverted, and were determinative of the
ruling in the earlier case.23 In other words, the dictum laid down in the earlier final judgment or order
becomes conclusive and continues to be binding between the same parties, their privies and
successors-in-interest, as long as the facts on which that judgment was predicated continue to be
the facts of the case or incident before the court in a later case; the binding effect and enforceability
of that earlier dictum can no longer be re-litigated in a later case since the issue has already been
resolved and finally laid to rest in the earlier case.24

In the present case, it is beyond dispute that the judgment in Civil Case No. 16047 has attained
finality in view of the tenant’s abandonment of their appeal to the CA. Moreover, records show that
that decision was adjudicated on the merits, i.e., it was rendered after a consideration of the
evidence or stipulations submitted by the parties at the trial of the case25 by a court which had
jurisdiction over the subject matter and the parties.

We likewise find that there is an identity of parties in Civil Case No. 16047 and the present case.
There is identity of parties where the parties in both actions are the same, or there is privity between
them, or they are "successors-in-interest by title subsequent to the commencement of the action,
litigating for the same thing and under the same title and in the same capacity.26 Absolute identity of
parties is not required, shared identity of interest is sufficient to invoke the coverage of this
principle.27 Thus, it is enough that there is a community of interest between a party in the first case
and a party in the second case even if the latter was not impleaded in the first case.28

It is not disputed that respondents were the plaintiffs in Civil Case No. 16047. Degayo, however
insists that she is not bound by the decision in Civil Case No. 16047 as she was not made a party in
that case. We, however, refuse to subscribe to this technical interpretation of the Rules. In Torres v.
Caluag,29 we held that a real litigant may be held bound as a party even if not formally impleaded
because he had his day in court and because her substantial rights were not prejudiced. In that
case, J. M. Tuazon & Co., Inc. (Tuason) commenced Civil Case No Q-3674 in the Court of First
Instance of Quezon City against Isidro Conisido to recover from him the possession of a parcel of
land. Conisido answered the complaint alleging, that he was occupying the land in question as a
mere tenant of Dominga Torres (Torres), who owned both the land and the house thereon. Torres
was not impleaded in the said case but she nonetheless appeared as witness for Conisido and
asserted her ownership over the disputed property because she had purchased it from Eustaquio
Alquiroz on October 20, 1951 and constructed a house thereon worth ₱500.00, which she had
leased to Conisido for a rental of ₱20.00 a month. The CFI eventually decided in favor of Tuason
and that decision became final and executory. Subsequently, Torres filed a petition for certiorari with
the Court to set aside the decision of the CFI. Indismissing the petition, we ruled:

"x x x, it appears that DomingaTorres who, according to the defendant Conisido was the true owner
ofthe land in question, testified as his witness and asserted on the witness stand that she was really
the owner thereof because she had purchased it from Eustaquio Alquiroz on October 20, 1951 and
constructed a house thereon worth ₱500.00 which she had leased to Conisido for a rental of ₱20.00
a month. In other words, petitioner herein had really had her day in court and had laid squarely
before the latter the issue of ownership as between her, on one hand, and respondent Tuason, on
the other.

xxx

In the present case, assisted heretofore, petitioner had the fullest opportunity to lay before the court
her claim but the same was overruled. The fact that she was not formally made a party defendant in
the case would appear therefore to be a mere technicality that would not serve the interest of the
administration of justice. As we have repeatedly held, technicalities should be ignored when they do
not serve the purpose of the law.

x x x"

In the present case, Degayo had the fullest opportunity to ventilate her accretion claim Civil Case
No. 16047. In her testimony, she asserted that she inherited Lot No. 861 from her parents and that
she has been in possession of that parcel of land since 1954.30 She further stressed that the disputed
parcel of land has been occupied and tilled by her tenants and that it was the result of the gradual
and continuous deposit of the river.31 Notably, these are the same allegations that Degayo asserted
in the present case, which have been previously considered and evaluated by the RTC Branch 27 in
Civil Case No. 16047.

Likewise, there exists a community of interest between Degayo and her tenants, who were
respondents in Civil Case No. 16047. One test to determine substantial identity of interest would be
to see whether the success or failure of one party materially affects the other.32 In the present case,
Degayo is suing for the ownership of the disputed land. Degayo’s rights over the disputed land is
predicated on the same defenses that his alleged tenants interposed in Civil Case No. 16047, that is,
their perceived rights which emanated from the disputed accretion to Lot No. 861. The interests of
Degayo and the tenants in relation to the two cases are inextricably intertwined in that both their
claims emanate from a singular fundamental allegation of accretion. Moreover, Degayo and the
respondents are litigating the same properties subject of the antecedent cases inasmuch as they
claim better right of ownership. Degayo even admitted this in her petition wherein she stated that
"the land subject of Civil Case No. 16047 is the same property subject of the case at bench.33 "

Notably, the ownership of the disputed parcel of land has been unequivocally settled in Civil Case
No. 16047.In ruling that the subject parcels of land belong to the respondents, the RTC Branch 27 in
Civil Case No. 16047 opined that the claim of accretion has no valid basis.34 What really happened
was that the Jalaud River naturally changed its course and moved southward. As a result, it
abandoned its previous bed and encroached upon a portion of Lot No. 7328. It further held that the
claim of accretion could not be sustained because the 26,419 sqm. portion is ostensibly within the
metes and bounds of Lot No. 7328, owned and registered in the name of the respondents.35 On the
other hand, the 26,106 sqm. portion refers to an abandoned river bed, and is thus governed by
Article 461 of the Civil Code, which states that River beds which are abandoned through the natural
change in the course of the waters ipso facto belong to the owners whose lands are occupied by the
new course in proportion to the area lost.

The fact that the present cause of action is based on an accretion claim does not prevent the
application of res judicata. For, res judicata, under the concept of conclusiveness of judgment,
operates even if no absolute identity of causes of action exists. Res judicata, in its conclusiveness of
judgment concept, merely requires identity of issues. We thus agree with the uniform view of the CA
– on the application of conclusiveness of judgment to the present case. The CA may take judicial
notice of

Civil Case No. 16047.

The taking of judicial notice is a matter of expediency and convenience for it fulfills the purpose that
the evidence is intended to achieve, and in this sense, it is equivalent to proof.36 Generally, courts are
not authorized to "take judicial notice of the contents of the records of other cases even when said
cases have been tried or are pending in the same court or before the same judge.37 " While the
principle invoked is considered to be the general rule, this rule is not absolute. There are exceptions
to this rule. In the case of Tiburcio v PHHC,38 this Court, citing Justice Moran, stated:

"In some instance, courts have taken judicial notice of proceedings in other causes, because of their
close connection with the matter in the controversy. Thus, in a separate civil action against the
administrator of an estate arising from an appeal against the report of the committee on claims
appointed in the administration proceedings of the said estate, to determine whether or not the
appeal was taken on time, the court took judicial notice of the record of the administration
proceedings. Courts have also taken judicial notice of previous cases to determine whether or not
the case pending is a moot one or whether or not a previous ruling is applicable in the case under
consideration."

Moreover, Degayo’s objection to the action of CA on this matter is merely technical because Degayo
herself repeatedly referred to the Civil Case No. 16047 in her pleadings in Civil Case No. 18328and
even in her appellee’s brief before the CA and her petition for review before this Court. In particular,
in her complaint, she stated that her motion to intervene in Civil Case No. 16047, which was denied
by the Court.39 The existence of that case was likewise jointly stipulated by that parties in Civil Case
No. 1832840 and mentioned by the court a quoin its decision.41In her appellee’s brief as well, Degayo
expressly referred to Civil Case No. 16047. In particular, she stated:

"The said Civil Case No. 16047 was for recovery of ownership and possession with damages over
the property subject of the instant case filed by the herein defendants-appellants against [the
tenants]"

She also referred to the decision in Civil Case No. 16047 in her appellee’s brief. She mentioned: "In
Civil Case No. 16047, the Court had ordered the deposit of 50% of the net produce of the disputed
portion that pertains to the owner, thus depriving the plaintiff of her share of not less than Php
4,000.00 a year starting 1986, to the damage of plaintiff."

There was thus no denial of the existence and the decision in Civil Case No. 16047. In fact, Degayo
1âwphi1

stated on record her full knowledge of Civil Case No. 16047 and clearly and frequently referred to it
in her pleadings, and sufficiently designated it by name, parties, cause of action and docket number
from the court a quo, to the CA and even before this Court. Under the circumstances, the CA could
certainly take judicial notice of the finality of a judgment in Civil Case No. 16047. There was no
sense in relitigating issues that have already been passed upon in a previous civil case. That was all
that was done by the CA in decreeing the dismissal. Certainly such an order is not contrary to law.
As we aptly stated in Republic v. CA,42 citing Justice Edgardo L. Paras:
"A court will take judicial notice of its own acts and records in the same case, of facts established in
prior proceedings in the same case, of the authenticity of its own records of another case between
the same parties, of the files of related cases in the same court, and of public records on file in the
same court. In addition judicial notice will be taken of the record, pleadings or judgment of a case in
another court between the same parties or involving one of the same parties, as well as of the record
of another case between different parties in the same court. " Lastly, there is another equally
compelling consideration. Degayo undoubtedly had recourse to a remedy which under the law then
in force could be availed of, which is to file a petition for certiorari with the CA. It would have served
the cause of justice better, not to mention the avoidance of needless expense on her part and the
vexation to which the respondents were subjected if she did reflect a little more on the matter.

With the conclusion that Civil Case No. 16047 constitutes resjudicata on the present case, we see
no reason to engage in a discussion on the factual issues raised by the petitioner for they have been
passed upon and considered in Civil Case No. 16047.

WHEREFORE, premises considered, we DENY the petition for lack of merit. Costs against the
petitioner.

SO ORDERED.

ARTURO D. BRION

SUPLICO VS NEDA

RESOLUTION

REYES, R.T., J.:

Under consideration is the Manifestation and Motion[1] dated October 26, 2007 of
the Office of the Solicitor General (OSG) which states:

The Office of the Solicitor General (OSG) respectfully avers that in

an Indorsement dated October 24, 2007, the Legal Service of the
Department of Transportation and Communications (DOTC) has
informed it of the Philippine Governments decision not to continue with
the ZTE National Broadband Network Project (see attachment[2]). That
said, there is no more justiciable controversy for this Honorable Court to
resolve. WHEREFORE, public respondents respectfully pray that the
present petitions be DISMISSED.

On November 13, 2007, the Court noted the OSGs manifestation and motion and
required petitioners in G.R. Nos. 178830, 179317, and 179613 to comment.

On December 6, 2007, Rolex Suplico, petitioner in G.R. No. 178830, filed his
Consolidated Reply and Opposition,[3] opposing the
aforequoted OSG Manifestation and Motion, arguing that:
 66. Aside from the fact that the Notes of the Meeting Between
President Gloria Macapagal-Arroyo and Chinese President Hu Jintao held
2 October 2007 were not attached to the 26 October 2007 Manifestation
and Motion thus depriving petitioners of the opportunity to comment
thereon a mere verbally requested 1st Indorsement is not sufficient basis
for the conclusion that the ZTE-DOTC NBN deal has been permanently
scrapped.

67. Suffice to state, said 1st Indorsement is glaringly self-

serving, especially without the Notes of the Meeting Between President
Gloria Macapagal-Arroyo and Chinese President Hu Jintao to support its
allegations or other proof of the supposed decision to cancel the ZTE-
DOTC NBN deal. Public respondents can certainly do better than that.[4]

Petitioner Suplico further argues that:

79. Assuming arguendo that some aspects of the present Petition have
been rendered moot (which is vehemently denied), this Honorable Court,
consistent with well-entrenched jurisprudence, may still take cognizance
thereof.[5]

Petitioner Suplico cites this Courts rulings in Gonzales v. Chavez,[6] Rufino v.

Endriga,[7] and Alunan III v. Mirasol[8] that despite their mootness, the Court
nevertheless took cognizance of these cases and ruled on the merits due to the
Courts symbolic function of educating the bench and the bar by formulating guiding
and controlling principles, precepts, doctrines, and rules.

On January 31, 2008, Amsterdam Holdings, Inc. (AHI) and Nathaniel Sauz,
petitioners in G.R. No. 179317, also filed their comment expressing their
sentiments, thus:

3. First of all, the present administration has never been

known for candor. The present administration has a very nasty habit of
not keeping its word. It says one thing, but does another.

4. This being the case, herein petitioners are unable to bring

themselves to feel even a bit reassured that the government, in the event
that the above-captioned cases are dismissed, will not backtrack, re-
 transact, or even resurrect the now infamous NBN-ZTE transaction.This
is especially relevant since what was attached to the OSGs Manifestation
and Motion was a mere one (1) page written communication sent by the
Department of Transportation and Communications (DOTC) to the OSG,
allegedly relaying that the Philippine Government has decided not to
continue with the NBN project x x x due to several reasons and
constraints.

Petitioners AHI and Sauz further contend that because of the transcendental
importance of the issues raised in the petition, which among others, included the
Presidents use of the power to borrow, i.e., to enter into foreign loan agreements,
this Court should take cognizance of this case despite its apparent mootness.

On January 15, 2008, the Court required the OSG to file respondents reply to
petitioners comments on its manifestation and motion.

On April 18, 2008, the OSG filed respondents reply, reiterating their position
that for a court to exercise its power of adjudication, there must be an actual case
or controversy one which involves a conflict of legal rights, an assertion of opposite
legal claims susceptible of judicial resolution; the case must not be moot or
academic or based on extra-legal or other similar considerations not cognizable by
a court of justice.[9]

Respondents also insist that there is no perfected contract in this case that
would prejudice the government or public interest. Explaining the nature of the
NBN Project as an executive agreement, respondents stress that it remained in the
negotiation stage. The conditions precedent[10] for the agreement to become
effective have not yet been complied with.
Respondents further oppose petitioners claim of the right to information,
which they contend is not an absolute right. They contend that the matters raised
concern executive policy, a political question which the judicial branch of
government would generally hesitate to pass upon.

On July 2, 2008, the OSG filed a Supplemental Manifestation and

Motion. Appended to it is the Highlights from the Notes of Meeting between
President Gloria Macapagal-Arroyo and Chinese President Hu Jintao, held in XI Jiao
Guesthouse, Shanghai, China, on October 2, 2007. In the Notes of Meeting, the
Philippine Government conveyed its decision not to continue with the ZTE National
Broadband Network Project due to several constraints. The same Notes likewise
contained President Hu Jintaos expression of understanding of the Philippine
Government decision.
 We resolve to grant the motion.

Firstly, the Court notes the triple petitions to be for certiorari, prohibition and
mandamus, with application for the issuance of a Temporary Restraining Order
(TRO) and/or Preliminary Injunction. The individual prayers in each of the three (3)
consolidated petitions are:

G.R. No. 178830

WHEREFORE, it is respectfully prayed of this Honorable Court:

1. Upon the filing of this Petition, pursuant to the

second paragraph of Rule 58, Section 5 of the Rules of
Court, issue forthwith an ex parte temporary restraining
order enjoining respondents, their subordinates, agents,
representatives and any and all persons acting on their
behalf from pursuing, entering into indebtedness,
disbursing funds, and implementing the ZTE-DOTC
Broadband Deal;

2. Compel respondents, upon Writ of

Mandamus, to forthwith produce and furnish petitioner
or his undersigned counsel a certified true copy of the
contract or agreement covering the NBN project as
agreed upon with ZTE Corporation;

3. Schedule Oral Arguments in the present case

pursuant to Rule 49 in relation to Section 2, Rule 56 of the
revised Rules of Court; and,

4. Annul and set aside the award of the ZTE-

DOTC Broadband Deal, and compel public respondents
to forthwith comply with pertinent provisions of law
regarding procurement of government ICT contracts and
public bidding for the NBN contract.[11] (Emphasis supplied)

G.R. No. 179317

WHEREFORE, petitioners Amsterdam Holdings, Inc., and

Nathaniel Sauz respectfully pray as follows:

A. upon the filing of this Petition for Mandamus and conditioned

upon the posting of a bond in such amount as the Honorable
Court may fix, a temporary restraining order and/or writ of
preliminary injunction be issued directing the Department
of Transportation and Communication, the Commission
on Information and Communications Technology, all other
government agencies and instrumentalities, their officers,
employees, and/or other persons acting for and on their
behalf to desist during the pendency of the instant Petition
for Mandamus from entering into any other agreements
and from commencing with any kind, sort, or specie of
 activity in connection with the National Broadband
Network Project;

B. the instant Petition for Mandamus be given due

course; and,

C. after due consideration of all relevant issues,

judgment be rendered directing respondents to allow herein
petitioners access to all agreements entered into with the
Government of China, the ZTE Corporation, and/or other
entities, government instrumentalities, and/or individuals
with regard to the National Broadband Network
Project.[12] (Emphasis supplied)

G.R. No. 179613

WHEREFORE, it is respectfully prayed of this Honorable Court to:

1. Compel respondents, upon Writ of

Mandamus, to forthwith produce and furnish petitioner
or his undersigned counsel a certified true copy of the
contract or agreement covering the NBN project as
agreed upon with ZTE Corporation;

2. Schedule Oral Arguments in the present case

pursuant to Rule 49 in relation to Section 2, Rule 56 of the
Revised Rules of Court;

3. Annul and set aside the award of the contract

for the national broadband network to respondent ZTE
Corporation, upon the ground that said contract, as well as
the procedures resorted to preparatory to the execution
thereof, is contrary to the Constitution, to law and to public
policy;

4. Compel public respondent to forthwith comply

with pertinent provisions of law regarding procurement
of government infrastructure projects, including public
bidding for said contract to undertake the construction of the
national broadband network.[13] (Emphasis supplied)

On September 11, 2007, the Court issued a TRO[14] in G.R. No. 178830,
enjoining the parties from pursuing, entering into indebtedness, disbursing funds,
and implementing the ZTE-DOTC Broadband Deal and Project as prayed
for. Pertinent parts of the said Order read:

WHEREAS, the Supreme Court, on 11 September 2007, adopted a

resolution in the above-entitled case, to wit:
 G.R. No. 178830 (Rolex Suplico vs. National Economic and
Development Authority, represented by NEDA Secretary
Romulo L. Neri, and the NEDA Investment Coordination
Committee, Department of Transportation and
Communications (DOTC), represented by DOTC Secretary
Leandro Mendoza, including the Commission on
Information and Communications Technology, headed by
its Chairman, Ramon P. Sales, The Telecommunications
Office, Bids and Awards for Information and
Communications Technology Committee (ICT), headed by
DOTC Assistant Secretary Elmer A. Soneja as Chairman, and
The Technical Working Group for ICT, and DOTC Assistant
Secretary Lorenzo Formoso, and All Other Operating Units
of the DOTC for Information and Communications
Technology, and ZTE Corporation, Amsterdam Holdings,
Inc., and ARESCOM, Inc.Acting on the instant petition with
prayer for temporary restraining order and/or writ of
preliminary injunction, the Court Resolved, without giving
due course to the petition, to

xxxx

(d) Issue a TEMPORARY RESTRAINING ORDER,

effective immediately and continuing until
further orders from this Court, enjoining
the (i) National Economic and Development
Authority, (ii) NEDA-Investment Coordination
Committee, (iii) Department of Transportation
and Communications, Commission on
Information and Communications Technology,
(iv) Telecommunications Office, Bids and
Awards for Information and Communications
Technology Committee (ICT), (v) Technical
Working Group for ICT, and all other
Operating Units of the DOTC for Information
and Communications Technology, (vi) ZTE
Corporation; (vii) Amsterdam Holdings, Inc.,
and (viii) ARESCOM, Inc., and any and all
persons acting on their behalf from pursuing,
entering into indebtedness, disbursing funds,
and implementing the ZTE-DOTC Broadband
Deal and Project as prayed for.

NOW THEREFORE, effective immediately and continuing until further

orders from this Court, You, Respondents (i) National Economic and
 Development Authority, (ii) NEDA-Investment Coordination Committee,
(iii) Department of Transportation and Communications, Commission on
Information and Communications Technology, (iv) Telecommunications
Office, Bids and Awards for Information and Communications
Technology Committee (ICT), (v) Technical Working Group for ICT, and all
other Operating Units of the DOTC for Information and Communications
Technology, (vi) ZTE Corporation; (vii) Amsterdam Holdings, Inc., and
(viii) ARESCOM, Inc., and any and all persons acting on their behalf are
hereby ENJOINED from pursuing, entering into indebtedness,
disbursing funds, and implementing the ZTE-DOTC Broadband Deal and
Project as prayed for.[15] (Emphasis supplied.)

Petitioners in G.R. Nos. 178830 and 179613 pray that they be furnished certified
true copies of the contract or agreement covering the NBN project as agreed upon
with ZTE Corporation. It appears that during one of the Senate hearings on the NBN
project, copies of the supply contract[16] were readily made available to
petitioners.[17] Evidently, the said prayer has been complied with and is,
thus, mooted.

When President Gloria Macapagal-Arroyo, acting in her official capacity during the
meeting held on October 2, 2007 in China, informed Chinas President Hu Jintao that
the Philippine Government had decided not to continue with the ZTE-National
Broadband Network (ZTE-NBN) Project due to several reasons and constraints,
there is no doubt that all the other principal prayers in the three petitions (to
annul, set aside, and enjoin the implementation of the ZTE-NBN Project) had also
become moot.

Contrary to petitioners contentions that these declarations made by officials

belonging to the executive branch on the Philippine Governments decision not to
continue with the ZTE-NBN Project are self-serving, hence, inadmissible, the Court
has no alternative but to take judicial notice of this official act of the President of
the Philippines.

Section 1, Rule 129 of the Rules of Court provides:

SECTION 1. Judicial Notice, when mandatory. A court shall take

judicial notice, without introduction of evidence, of the existence and
territorial extent of states, their political history, forms of government and
symbols of nationality, the law of nations, the admiralty and maritime
courts of the world and their seals, the political constitution and history of
the Philippines, the official acts of the legislative, executive and
judicial departments of the Philippines, the laws of nature, the measure
of time, and the geographical divisions. (Emphasis supplied)
Under the rules, it is mandatory and the Court has no alternative but to take
judicial notice of the official acts of the President of the Philippines, who heads the
executive branch of our government. It is further provided in the above-quoted rule
that the court shall take judicial notice of the foregoing facts without introduction
of evidence. Since we consider the act of cancellation by President Macapagal-
Arroyo of the proposed ZTE-NBN Project during the meeting of October 2,
2007 with the Chinese President in China as an official act of the executive
department, the Court must take judicial notice of such official act without need of
evidence.

In David v. Macapagal-Arroyo,[18] We took judicial notice of the

announcement by the Office of the President banning all rallies and canceling all
permits for public assemblies following the issuance of Presidential Proclamation
No. 1017 and General Order No. 5.

In Estrada v. Desierto,[19] the Court also resorted to judicial notice in

resolving the factual ingredient of the petition.

Moreover, under Section 2, paragraph (m) of Rule 131 of the Rules of Court,
the official duty of the executive officials[20] of informing this Court of the
governments decision not to continue with the ZTE-NBN Project is also presumed
to have been regularly performed, absent proof to the contrary. Other than
petitioner AHIs unsavory insinuation in its comment, the Court finds no factual or
legal basis to disregard this disputable presumption in the present instance.

Concomitant to its fundamental task as the ultimate citadel of justice and

legitimacy is the judiciarys role of strengthening political stability indispensable to
progress and national development. Pontificating on issues which no longer
legitimately constitute an actual case or controversy will do more harm than good
to the nation as a whole. Wise exercise of judicial discretion militates against
resolving the academic issues, as petitioners want this Court to do. This is especially
true where, as will be further discussed, the legal issues raised cannot be resolved
without previously establishing the factual basis or antecedents.

Judicial power presupposes actual controversies, the very antithesis of

mootness. In the absence of actual justiciable controversies or disputes, the Court
generally opts to refrain from deciding moot issues. Where there is no more live
subject of controversy, the Court ceases to have a reason to render any ruling or
make any pronouncement.

Kapag wala nang buhay na kaso, wala nang dahilan para magdesisyon ang
Husgado.

In Republic Telecommunications Holdings, Inc. v. Santiago,[21] the lone issue

tackled by the Court of Appeals (CA) was whether the Securities Investigation and
Clearing Department (SICD) and Securities and Exchange Commission (SEC) en
banc committed reversible error in issuing and upholding, respectively, the writ of
preliminary injunction. The writ enjoined the execution of the questioned
agreements between Qualcomm, Inc. and Republic Telecommunications Holdings,
Inc. (RETELCOM). The implementation of the agreements was restrained through
the assailed orders of the SICD and the SEC en banc which, however, were nullified
by the CA decision. Thus, RETELCOM elevated the matter to this Court praying for
the reinstatement of the writ of preliminary injunction of the SICD and the SEC en
banc. However, before the matter was finally resolved, Qualcomm, Inc. withdrew
from the negotiating table. Its withdrawal had thwarted the execution and
enforcement of the contracts. Thus, the resolution of whether the implementation
of said agreements should be enjoined became no longer necessary.

Equally applicable to the present case is the Court ruling in the above-
cited Republic Telecommunications. There We held, thus:

Indeed, the instant petition, insofar as it assails the Court of

Appeals Decision nullifying the orders of the SEC en banc and the SICD,
has been rendered moot and academic. To rule, one way or the other,
on the correctness of the questioned orders of the SEC en banc and the
SICD will be indulging in a theoretical exercise that has no practical worth
in view of the supervening event.

The rule is well-settled that for a court to exercise its power of

adjudication, there must be an actual case or controversy one which
involves a conflict of legal rights, an assertion of opposite legal claims
susceptible of judicial resolution; the case must not be moot or academic
or based on extra-legal or other similar considerations not cognizable by
a court of justice. Where the issue has become moot and academic, there
is no justiciable controversy, and an adjudication thereon would be of no
practical use or value as courts do not sit to adjudicate mere academic
questions to satisfy scholarly interest, however intellectually challenging.

In the ultimate analysis, petitioners are seeking the reinstatement

of the writ of injunction to prevent the concerned parties from pushing
through with transactions with Qualcomm, Inc. Given that Qualcomm,
Inc. is no longer interested in pursuing the contracts, there is no actual
substantial relief to which petitioners would be entitled and which would
be negated by the dismissal of the petition.
The Court likewise finds it unnecessary to rule whether the
assailed Court of Appeals Decision had the effect of overruling the Courts
Resolution dated 29 January 1999, which set aside the TRO issued by the
appellate court.

A ruling on the matter practically partakes of a mere advisory

opinion, which falls beyond the realm of judicial review. The exercise of
the power of judicial review is limited to actual cases and controversies.
 Courts have no authority to pass upon issues through advisory opinions
or to resolve hypothetical or feigned problems.

While there were occasions when the Court passed upon issues
although supervening events had rendered those petitions moot and
academic, the instant case does not fall under the exceptional cases. In
those cases, the Court was persuaded to resolve moot and academic
issues to formulate guiding and controlling constitutional principles,
precepts, doctrines or rules for future guidance of both bench and bar.

In the case at bar, the resolution of whether a writ of preliminary

injunction may be issued to prevent the implementation of the assailed
contracts calls for an appraisal of factual considerations which are
peculiar only to the transactions and parties involved in this
controversy. Except for the determination of whether petitioners are
entitled to a writ of preliminary injunction which is now moot, the issues
raised in this petition do not call for a clarification of any constitutional
principle or the interpretation of any statutory provision.[22]

Secondly, even assuming that the Court will choose to disregard the
foregoing considerations and brush aside mootness, the Court cannot completely
rule on the merits of the case because the resolution of the three petitions
involves settling factual issues which definitely requires reception of
evidence. There is not an iota of doubt that this may not be done by this Court in
the first instance because, as has been stated often enough, this Court is not a
trier of facts.

Ang pagpapasiya sa tatlong petisyon ay nangangailangan ng paglilitis na hindi

gawain ng Hukumang ito.

Respondent ZTE, in its Comment in G.R. No. 178830,[23] correctly pointed out that
since petitioner Suplico filed his petition directly with this Court, without prior
factual findings made by any lower court, a determination of pertinent and relevant
facts is needed. ZTE enumerated some of these factual issues, to wit:

(1) Whether an executive agreement has been reached between the

Philippine and Chinese governments over the NBN Project;

(2) Whether the ZTE Supply Contract was entered into by the
Republic of the Philippines, through the DOTC, and ZTE
International pursuant to, and as an integral part of, the executive
agreement;

(3) Whether a loan agreement for the NBN Project has actually been
executed;
 (4) Whether the Philippine government required that the NBN Project
be completed under a Build-Operate-and-Transfer Scheme;

(5) Whether the AHI proposal complied with the requirements for an
unsolicited proposal under the BOT Law;

(6) Whether the Philippine government has actually earmarked public

finds for disbursement under the ZTE Supply Contract; and

(7) Whether the coverage of the NBN Project to be supplied under the
ZTE Supply Contract is more extensive than that under
the AHI proposal or such other proposal submitted therefor.[24]

Definitely, some very specific reliefs prayed for in both G.R. Nos. 178830 and
179613 require prior determination of facts before pertinent legal issues could be
resolved and specific reliefs granted.

In G.R. No. 178830, petitioner seeks to annul and set aside the award of the
ZTE-DOTC Broadband Deal and compel public respondents to forthwith comply
with pertinent provisions of law regarding procurement of government ICT
contracts and public bidding for the NBN contract.

In G.R. No. 179613, petitioners also pray that the Court annul and set aside
the award of the contract for the national broadband network to respondent ZTE
Corporation, upon the ground that said contract, as well as the procedures resorted
to preparatory to the execution thereof, is contrary to the Constitution, to law and to
public policy. They also ask the Court to compel public respondent
to forthwith comply with pertinent provisions of law regarding procurement of
government infrastructure projects, including public bidding for said contract to
undertake the construction of the national broadband network.

It is simply impossible for this Court to annul and set aside the award of the ZTE-
DOTC Broadband Deal without any evidence to support a prior factual finding
pointing to any violation of law that could lead to such annulment order. For sure,
the Supreme Court is not the proper venue for this factual matter to be threshed
out.
Thirdly, petitioner Suplico in G.R. No. 178830 prayed that this Court order public
respondents to forthwith comply with pertinent provisions of law regarding
procurement of government ICT contracts and public bidding for the NBN
contract.[25] It would be too presumptuous on the part of the Court to summarily
compel public respondents to comply with pertinent provisions of law regarding
procurement of government infrastructure projects without any factual basis or
prior determination of very particular violations committed by specific government
officials of the executive branch. For the Court to do so would amount to a breach
of the norms of comity among co-equal branches of government. A perceived error
cannot be corrected by committing another error. Without proper evidence, the
Court cannot just presume that the executive did not comply with procurement
laws. Should the Court allow itself to fall into this trap, it would plainly commit
grave error itself.

Magiging kapangahasan sa Hukumang ito na pilitin ang mga pinipetisyon na

tumalima sa batas sa pangongontrata ng pamahalaan kung wala pang
pagtitiyak o angkop na ebidensiya ng nagawang paglabag dito.

Let it be clarified that the Senate investigation in aid of legislation cannot be the
basis of Our decision which requires a judicial finding of facts.

Justice Antonio T. Carpio takes the view that the National Broadband Network
Project should be declared null and void. The foregoing threefold reasons would
suffice to address the concern of Our esteemed colleague.

The Court is, therefore, constrained to dismiss the petitions and deny them
due course because of mootness and because their resolution requires reception
of evidence which cannot be done in an original petition brought before the
Supreme Court.

WHEREFORE, the petitions are DISMISSED. The Temporary Restraining Order

issued on September 11, 2007 is DISSOLVED.

SO ORDERED.

PHILIPPINE LONG G.R. No. 182622

DISTANCE TELEPHONE
COMPANY [PLDT], Present:
Petitioner,
CARPIO, J., Chairperson,
NACHURA,
PERALTA,
ABAD, and
- versus - MENDOZA, JJ.

ROBERTO R. PINGOL, Promulgated:

Respondent. September 8, 2010
X -------------------------------------------------------------------------------------- X
 DECISION

MENDOZA, J.:

This is a petition for review on certiorari under Rule 45 of the Revised Rules of
Court filed by petitioner Philippine Long Distance Telephone
Company (PLDT) which seeks to reverse and set aside: (1) the December 21, 2007
Decision[1] of the Court of Appeals (CA), in CA-G.R. SP No. 98670, affirming the
November 15, 2006[2] and January 31, 2007[3] Resolutions of the National Labor
Relations Commission (NLRC); and (2) its April 18, 2008 Resolution[4] denying the
Motion for Reconsideration of petitioner.

THE FACTS

In 1979, respondent Roberto R. Pingol (Pingol) was hired by petitioner PLDT as a

maintenance technician.

On April 13, 1999, while still under the employ of PLDT, Pingol was
admitted at The Medical City, Mandaluyong City, for paranoid personality disorder
due to financial and marital problems. On May 14, 1999, he was discharged from
the hospital. Thereafter, he reported for work but frequently absented himself due to
his poor mental condition.

From September 16, 1999 to December 31, 1999, Pingol was absent from work
without official leave. According to PLDT, notices were sent to him with a stern
warning that he would be dismissed from employment if he continued to be absent
without official leave pursuant to PLDT Systems Practice A-007 which provides that
Absence without authorized leaves for seven (7) consecutive days is subject to
termination from the service.[5] Despite the warning, he failed to show up for
work. On January 1, 2000, PLDT terminated his services on the grounds of
unauthorized absences and abandonment of office.

On March 29, 2004, four years later, Pingol filed a Complaint for Constructive
Dismissal and Monetary Claims[6] against PLDT. In his complaint, he alleged that
he was hastily dismissed from his employment on January 1, 2000. In
response, PLDT filed a motion to dismiss claiming, among others, that respondents
cause of action had already prescribed as the complaint was filed four (4) years and
three (3) months after his dismissal.
Pingol, however, countered that in computing the prescriptive period, the years 2001
to 2003 must not be taken into account. He explained that from 2001 to 2003, he was
inquiring from PLDT about the financial benefits due him as an employee who was
no longer allowed to do his work, but he merely got empty promises. It could not,
therefore, result in abandonment of his claim.

On July 30, 2004, the Labor Arbiter (LA) issued an order granting petitioners Motion
to Dismiss on the ground of prescription, pertinent portions of which read:

As correctly cited by (PLDT), as ruled by the Supreme Court

in the case of Callanta vs. Carnation Phils., 145 SCRA 268, the
complaint for illegal dismissal must be filed within four (4) years
from and after the date of dismissal.
Needless to state, the money claims have likewise prescribed.
Article 291 of the Labor Code provides:

All money claims arising from employer-employee

relations accruing from the effectivity of this Code shall
be filed within three (3) years from the time the cause
of action accrued, otherwise they shall be forever
barred.

WHEREFORE, let this case be, as it is hereby DISMISSED on the

ground of prescription.

SO ORDERED.[7]

Pingol appealed to the NLRC arguing that the 4-year prescriptive period has not yet
lapsed because PLDT failed to categorically deny his claims. The NLRC in
its November 15, 2006 Resolution reversed the LAs resolution and favored
Pingol. The dispositive portion thereof reads:

WHEREFORE, the foregoing premises considered, the

instant appeal is GRANTED and the Order appealed from is
REVERSED and SET ASIDE.

Accordingly, let the entire records of the case be REMANDED to

the Labor Arbiter a quo for further proceedings.

SO ORDERED.[8]

PLDT moved for reconsideration but the same was denied by the NLRC in its
Resolution dated January 31, 2007.
Unsatisfied, PLDT elevated the case to the CA by way of a petition
for certiorari under Rule 65 alleging grave abuse of discretion on the part of the
NLRC in issuing the assailed resolutions.

The CA denied the petition in its December 21, 2007 Decision, the fallo of which
reads:

WHEREFORE, the Petition for Certiorari is

hereby DISMISSED. The Resolutions dated 15
November 2006 and 31 January 2007 of the National
Labor Relations Commission are AFFIRMED.

SO ORDERED.[9]

PLDT moved for reconsideration but the same was denied by the CA in a Resolution
dated April 18, 2008.

THE ISSUES

Not in conformity with the ruling of the CA, PLDT seeks relief with this Court
raising the following issues:

THE HONORABLE COURT OF APPEALS HAS DECIDED A

QUESTION OF SUBSTANCE IN A WAY NOT PROBABLY IN
ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS
OF THE HONORABLE SUPREME COURT.

THE HONORABLE COURT OF APPEALS DEPARTED FROM

THE ACCEPTED AND USUAL COURSE OF JUDICIAL
PROCEEDINGS AS TO CALL FOR AN EXERCISE OF THE
POWER OF SUPERVISION.[10]

The issues boil down to whether or not respondent Pingol filed his complaint
for constructive dismissal and money claims within the prescriptive period of four
(4) years as provided in Article 1146 of the Civil Code[11] and three (3) years as
provided in Article 291 of the Labor Code,[12] respectively.
 Petitioner PLDT argues that the declaration under oath made by respondent
Pingol in his complaint before the LA stating January 1, 2000 as the date of his
dismissal, should have been treated by the NLRC and the CA as a judicial admission
pursuant to Section 4, Rule 129 of the Revised Rules of Court.[13] According to
petitioner, respondent has never contradicted his admission under oath. On the basis
of said declaration, petitioner posits that the LA was correct in finding that Pingols
complaint for illegal dismissal was filed beyond the prescriptive period of four (4)
years from the date of dismissal pursuant to Article 1146 of the New Civil Code.

In his Comment,[14] respondent Pingol counters that petitioner PLDT could

not have sent those notices with warning as that claim has never been supported by
sufficient proof not only before the Labor Arbiter but likewise before the Court of
Appeals.[15] He further alleges that his dismissal is likewise unsupported by any
evidence. He insists that both the NLRC and the CA correctly stated that his cause
of action has not yet prescribed as he was not formally dismissed on January 1,
2000 or his monetary claims categorically denied by petitioner.

THE COURTS RULING

The Court finds the petition meritorious.

Parties apparently do not dispute the applicable prescriptive period.

Article 1146 of the New Civil Code provides:

Art. 1146. The following actions must be instituted

within four years:

(1) Upon an injury to the rights of the plaintiff;

xxx xxx xxx

As this Court stated in Callanta v. Carnation,[16] when one is arbitrarily and

unjustly deprived of his job or means of livelihood, the action instituted to contest
the legality of one's dismissal from employment constitutes, in essence, an action
predicated "upon an injury to the rights of the plaintiff," as contemplated under Art.
1146 of the New Civil Code, which must be brought within four (4) years.
 With regard to the prescriptive period for money claims, Article 291 of the
Labor Code states:

Article 291. Money Claims. All money claims arising from

employer-employee relations accruing during the effectivity of this
Code shall be filed within three (3) years from the time the cause of
action accrued; otherwise they shall be barred forever.

The pivotal question in resolving the issues is the date when the cause of
action of respondent Pingol accrued.

It is a settled jurisprudence that a cause of action has three (3) elements, to

wit: (1) a right in favor of the plaintiff by whatever means and under whatever law
it arises or is created; (2) an obligation on the part of the named defendant to respect
or not to violate such right; and (3) an act or omission on the part of such defendant
violative of the right of the plaintiff or constituting a breach of the obligation of the
defendant to the plaintiff.[17]

Respondent asserts that his complaint was filed within the prescriptive period
of four (4) years. He claims that his cause of action did not accrue on January 1,
2000 because he was not categorically and formally dismissed or his monetary
claims categorically denied by petitioner PLDT on said date. Further, respondent
Pingol posits that the continuous follow-up of his claim with petitioner PLDT from
2001 to 2003 should be considered in the reckoning of the prescriptive period.

Petitioner PLDT, on the other hand, contends that respondent Pingol was dismissed
from the service on January 1, 2000 and such fact was even alleged in the complaint
he filed before the LA. He never contradicted his previous admission that he was
dismissed on January 1, 2000. Such admitted fact does not require proof.

The Court agrees with petitioner PLDT. Judicial admissions made by parties in the
pleadings, or in the course of the trial or other proceedings in the same case are
conclusive and so does not require further evidence to prove them. These admissions
cannot be contradicted unless previously shown to have been made through palpable
mistake or that no such admission was made.[18] In Pepsi Cola Bottling Company v.
Guanzon,[19] it was written:

xxx that the dismissal of the private respondent's complaint

was still proper since it is apparent from its face that the action
has prescribed. Private respondent himself alleged in the
complaint that he was unlawfully dismissed in 1979 while the
complaint was filed only on November 14, 1984. xxx (Emphasis
supplied. Citations omitted.)
 In the case at bench, Pingol himself alleged the date January 1, 2000 as the
date of his dismissal in his complaint[20] filed on March 29, 2004, exactly four (4)
years and three (3) months later. Respondent never denied making such admission
or raised palpable mistake as the reason therefor. Thus, the petitioner correctly relied
on such allegation in the complaint to move for the dismissal of the case on the
ground of prescription.

The Labor Code has no specific provision on when a claim for illegal dismissal or a
monetary claim accrues. Thus, the general law on prescription applies. Article 1150
of the Civil Code states:

Article 1150. The time for prescription for all kinds of actions,
when there is no special provision which ordains otherwise, shall
be counted from the day they may be brought. (Emphasis supplied)

The day the action may be brought is the day a claim starts as a legal
possibility.[21] In the present case, January 1, 2000 was the date that respondent
Pingol was not allowed to perform his usual and regular job as a maintenance
technician. Respondent Pingol cited the same date of dismissal in his complaint
before the LA. As, thus, correctly ruled by the LA, the complaint filed had already
prescribed.

Respondent claims that between 2001 and 2003, he made follow-ups with PLDT
management regarding his benefits. This, to his mind, tolled the running of the
prescriptive period.

The rule in this regard is covered by Article 1155 of the Civil Code. Its
applicability in labor cases was upheld in the case of International Broadcasting
Corporation v. Panganiban[22] where it was written:

Like other causes of action, the prescriptive period for money

claims is subject to interruption, and in the absence of an
equivalent Labor Code provision for determining whether the
said period may be interrupted, Article 1155 of the Civil Code may
be applied, to wit:

ART. 1155. The prescription of actions is interrupted when

they are filed before the Court, when there is a written extrajudicial
demand by the creditors, and when there is any written
acknowledgment of the debt by the debtor.

Thus, the prescription of an action is interrupted by (a) the

filing of an action, (b) a written extrajudicial demand by the
 creditor, and (c) a written acknowledgment of the debt by the
debtor.

In this case, respondent Pingol never made any written extrajudicial demand.
Neither did petitioner make any written acknowledgment of its alleged
obligation. Thus, the claimed follow-ups could not have validly tolled the running
of the prescriptive period. It is worthy to note that respondent never presented any
proof to substantiate his allegation of follow-ups.

Unfortunately, respondent Pingol has no one but himself to blame for his own
predicament. By his own allegations in his complaint, he has barred his remedy and
extinguished his right of action. Although the Constitution is committed to the
policy of social justice and the protection of the working class, it does not necessary
follow that every labor dispute will be automatically decided in favor of labor. The
management also has its own rights. Out of Its concern for the less privileged in life,
this Court, has more often than not inclined, to uphold the cause of the worker in his
conflict with the employer. Such leaning, however, does not blind the Court to the
rule that justice is in every case for the deserving, to be dispensed in the light of the
established facts and applicable law and doctrine.[23]

WHEREFORE, the petition is GRANTED. The assailed December 21,

2007 Decision and April 18, 2008 Resolution of the Court of Appeals, in CA-G.R.
SP No. 98670, are REVERSED and SET ASIDE and a new judgment
entered DISMISSING the complaint of Roberto R. Pingol.

SO ORDERED.

Republic of the Philippines

Supreme Court
Manila
SECOND DIVISION

ROMEO ILISAN y PIABOL, G.R. No. 179487

Petitioner,
Present:

CARPIO, J.,
Chairperson,
- versus - NACHURA,
LEONARDO-DE CASTRO,*
 ABAD, and
MENDOZA, JJ.

Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. November 15, 2010

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

DECISION

NACHURA, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of

Court, assailing the August 23, 2007 Decision[1] of the Court of Appeals (CA) in
CA-G.R. CR No. 29937, which affirmed with modification the June 14, 2005
decision[2]of the Regional Trial Court (RTC) of Quezon City, Branch 81, finding
petitioner Romeo Ilisan guilty beyond reasonable doubt of homicide.

The RTC and the CA similarly arrived at the following factual findings:

On February 3, 2002, a baptismal celebration was held at the residence of

Ricky Silva in Barangay Nagkaisang Nayon, Novaliches, Quezon City. Among
those who attended were petitioner and one Joey Gaton (Gaton). They belonged to
different groups of guests.[3]

While Gaton and petitioner were having a drinking spree with their respective
groups, one of petitioners companions apparently got irked by the way Gaton looked
at him. This prompted petitioner and his companions to maul Gaton. A melee then
ensued; in the course of which, petitioner shot Gaton at the abdomen, causing the
latters instantaneous death.[4] The gun used by petitioner was a .45 caliber pistol.

On February 7, 2002, an Information for murder was filed against petitioner

with the RTC of Quezon City, Branch 81, viz.:

That on or about 3rd day of February, 2002, in Quezon City,

Philippines, the above-named accused, did then and there, willfully,
unlawfully and feloniously with intent to kill, and with treachery and
evident premeditation and with use of superior strength assault, attack and
employ personal violence upon the person of one JOEY GATON Y
GARALDE, by then and there shooting him with a gun hitting him on his
trunk, thereby inflicting upon him serious and grave wounds which were
the direct and immediate cause of his death, to the damage and prejudice
of the heirs of JOEY GATON Y GARALDE.

CONTRARY TO LAW.[5]
 When arraigned on March 18, 2002, petitioner pleaded not guilty to the
offense charged.[6]

Evidence for the prosecution consisted mainly of the testimonies of Gabriel Gaton,
the victims brother, Marlon Dellamas, and Edgardo Dag-um, both neighbors of the
victim, who all positively identified petitioner as the gunman. Gabriel Gaton was
summoned to the place of the incident while his brother was being mauled; Marlon
Dellamas went to the scene of the incident to look for his brother Jojo; and Edgardo
Dag-um was at the place where the mauling and shooting transpired.

In his defense, petitioner and his witnesses, Jomarie Ilisan and Jaime
Escasinas, petitioners brother and cousin, respectively, claimed that another guest,
Chito Partisala, a jail guard in Bicutan, was the assailant. The defense also presented
Engineer Leonard Jabonillo, Forensic Chemist of the Central Police District Crime
Laboratory, who testified that petitioner tested negative for gunpowder residue when
paraffin tests were conducted on him a day after the incident.

In its June 14, 2005 decision, the RTC accorded more weight to the positive
testimonies of the prosecution witnesses over the declarations of the defense. There
being no adequate proof that treachery and evident premeditation qualified the
killing of Gaton, the RTC convicted petitioner of homicide, viz.:
IN VIEW OF THE FOREGOING, the Court finds accused ROMEO
ILISAN y PIABOL guilty beyond reasonable doubt of the crime of
Homicide punishable under Article 249 of the Revised Penal Code.
Applying the provisions of the Indeterminate Sentence Law and there
being no mitigating or aggravating circumstances, the accused is hereby
sentenced to suffer imprisonment for a term ranging from eight years and
one day of prision mayor as minimum to fourteen years and eight months
of reclusion temporal as maximum, and to indemnify the heirs of the
deceased in the amounts of P75,000.00 as actual damages, P50,000.00 for
the death of the victim and P50,000.00 as moral damages.

The period during which said accused was under detention should be
deducted from the service of his sentence. Let a mittimus order be issued
for service of sentence.[7]

On appeal to the CA, petitioner questioned the credibility of the prosecution

witnesses who allegedly harbored ill motive against him because they were either
related to the victim or to one of the participants in the commotion. Petitioner also
argued that the negative results of the paraffin residue test conducted on him strongly
indicate his innocence.[8]

In a Decision dated August 23, 2007, the CA affirmed the RTCs finding of guilt, but
modified the amount of actual damages awarded and the maximum period of the
penalty imposed by adding one (1) more day thereto, viz.:

WHEREFORE, the trial courts Decision dated June 14, 2005 is affirmed,
subject to the modification of the maximum period of the indeterminate
 sentence to fourteen (14) years, eight (8) months and one (1) day of
reclusion temporal medium, and the reduction of the award of actual
damages to P58,520.00.[9]

Hence, the present petition wherein petitioner reiterates the issues he raised
before the CA.

We deny the petition.

The Court generally defers to the trial court's evaluation of the credibility of
witness and their testimonies, for it is in a better position to decide questions of
credibility, having heard the witnesses themselves and observed their attitude and
deportment during trial.[10] In the absence of any clear showing that the trial court
overlooked or misconstrued cogent facts and circumstances which would alter a
conviction, we are doctrinally bound by the trial courts assessment of the credibility
of witnesses.[11] The application of this rule becomes even more stringent when such
findings are sustained by the appellate court,[12] as in the present case.

We see no misappreciation of facts committed by the courts a quo, which were

uniform in their reliance on the prosecutions version. Both were correct in
concluding that the identity of petitioner and his actual shooting of Gaton were
established beyond moral certainty through the testimonies of three (3) witnesses,
namely: (i) Gabriel Gaton, who was summoned to the place of the incident while his
brother Gaton was being mauled; (ii) Marlon Dellamas, who went to the scene of
the incident to look for his brother; and (iii) Edgardo Dag-um, who was in the
vicinity when the shooting transpired. Their ensuing testimonies are notable:

Gabriel Gaton:

Q: When Helen Dellamas went to your house and told you that your
brother was being mauled, what did you do, if you did anything?
A: We went to the place and we saw a person holding a gun.

Q: You said that you went to the place, where was this place located?
A: Near our house, sir.

Q: Now, you said that you saw a man when you went there, what else did
you see?
A: I saw him pointing a gun at my brother Joey.

Q: How far were you when you saw that man who was pointing a gun at
your brother Joey?
A: (Witness indicating a distance of 10 meters more or less.)

Q: And how far was the man with a gun from your brother Joey?
A: (Witness indicating a distance of 2 meters.)

Q: What was the position of your brother Joey when the man was pointing
his gun to your brother Joey?
A: Sidewise, sir.
Q: What happened after you saw the man pointing a gun at your brother?
A: I shouted: Dont (Huwag naman) but he ignored me and then the gun
went off.

Q: What happened after the gun went off?

A: After firing the gun, he pointed the gun to the bystanders.

Q: What happened to your brother?

A: He fell down, sir.[13]

Marlon Dellamas:

Q: Please tell this Honorable Court what [you were] doing [at] that time?
A: I was looking for my brother Joey Dellamas.

Q: If you can remember, were there many people on that alley?

A: Yes sir.

Q: And what was the [lighting] condition of that alley at that time?
A: It was very bright at that time.

Q: At that time and place, was there any unusual incident that transpired
on that place?
A: Yes maam, there was. They were arguing.

Q: You said that they were arguing, tell this Honorable Court who was
arguing, could you please be specific?
A: The visitors of the owner of the house, maam.

xxxx

Q: What happened after they entered the gate which you said was opened?
A: The person who was armed with a gun shot at Joey Gaton.

Q: How far were you when this person shot Joey Gaton, how far were you
to this person?
A: I was very near, maam. I was about a meter only away from them.

xxxx
Q: And what happened after this person who you just identified as Romeo
Ilisan shot Joey Gaton, what happened?
A: Joey Gaton fell down, maam.[14]

Edgardo Dag-um:

Q: While you were enjoying yourself with your companions, do you recall
of any unusual incident that happened?
A: Yes, sir, we heard shouts.

Q: Where did [those] shouts c[o]me from?

A: From outside.
 Q: When you heard [the] shouts, what did you do?
A: We went out the premises of the house of my sister.

xxxx
Q: And what did you see outside?
A: There were persons quarrelling, sir.

Q: Do you know that persons who were quarrelling [at] that time?

xxxx

A: I saw my brother-in-law Jojo Dellamas and Joey Gaton being mauled

by some male persons.

xxxx
Q: And when you saw people attacking your brother-in-law and Joey
Gaton, what else happened?
A: When some of the neighbors were approaching the scene of the
incident, those male persons who were mauling my brother-in-law
entered the yard of the house of Jaime E[s]casinas.

Q: Mr. Witness, you said a while ago that Joey Gaton was already dead,
how did he die?
A: He was shot, sir.

Q: Who shot him?

A: Romeo Ilisan, sir.

xxxx
Q: You pointed to Romeo Ilisan as the person who shot Joey Gaton, how
far were you when Romeo Ilisan shot Joey Gaton?
A: About two (2) meters away sir.

Q: What kind of firearm did this Romeo Ilisan use in shooting Joey Gaton?
A: .45, sir.[15]

The fact that Gabriel Gaton is the victims brother does not impair his
credibility as a witness. Relationship by itself does not give rise to a presumption of
bias or ulterior motive, nor does it ipso facto diminish the credibility or tarnish the
testimony of a witness. On the contrary, a witness relationship to a victim of a crime
would even make his or her testimony more credible as it would be unnatural for a
relative who is interested in vindicating the crime to accuse somebody other than the
culprit. The natural interest of witnesses, who are relatives of the victim, in securing
the conviction of the guilty would actually deter them from implicating persons other
than the true culprits.[16]

There is likewise no indication that Marlon Dellamas and Edgardo Dag-um

were improperly motivated when they testified against petitioner. As aptly observed
by the Office of the Solicitor General in its Comment,[17] aside from the prosecution
witnesses relationship with the other participants in the fight, petitioner failed to
show any other basis for the ill motive he imputes against them. As a rule, absent
any evidence showing any reason or motive for prosecution witnesses to perjure, the
logical conclusion is that no such improper motive exists, and their testimonies are
thus worthy of full faith and credit.[18]

Petitioners reliance on the negative results of the paraffin test conducted on

him the day after the fateful event must fail. Our ruling in People v.
Manalo,[19] is apropos:

[E]ven if he were subjected to a paraffin test and the same yields a

negative finding, it cannot be definitely concluded that he had not fired a
gun as it is possible for one to fire a gun and yet be negative for the
presence of nitrates as when the hands are washed before the test. The
Court has even recognized the great possibility that there will be no
paraffin traces on the hand if, as in the instant case, the bullet was fired
from a .45 Caliber pistol.

Indeed, paraffin tests, in general, have been rendered inconclusive by this

Court. Scientific experts concur in the view that the paraffin test has proved
extremely unreliable. It can only establish the presence or absence of nitrates or
nitrites on the hand; still, the test alone cannot determine whether the source of the
nitrates or nitrites was the discharge of a firearm. The presence of nitrates should be
taken only as an indication of a possibility or even of a probability but not of
infallibility that a person has fired a gun.[20] Conversely, the absence of gunpowder
nitrates on petitioners hands, the day after the incident, does not conclusively
establish that he did not fire a gun; neither are the negative results yielded by the
paraffin test an insurmountable proof of his innocence.

The courts a quo also correctly rejected the version of the defense as a
mere afterthought intended to exculpate petitioner, viz.:

If it is true that they saw Chito Partisala sh[o]ot Joey, why they did not tell the
policeman who arrived at the crime scene immediately that Partisala was the
gunman. Why did Jomarie wait until somebody pointed to the accused as the
gunman before he told them that it [was] Partisala who shot the victim.[21]

Thus, the positive, clear, and categorical testimonies of the three

eyewitnesses to the crime deserve full merit in both probative weight and
credibility over the negative results of the paraffin test conducted on petitioner
and his witnesses anomalous claims.

We now go to the penalty imposed. Homicide is punishable by reclusion

temporal.[22] There being no mitigating or aggravating circumstance proven in the
case at bar, the penalty should be applied in its medium period of fourteen (14) years,
eight (8) months, and one (1) day to seventeen (17) years and four (4) months.[23]

Applying the Indeterminate Sentence Law, the maximum penalty will be

selected from the above range, with the minimum penalty being selected from the
range of the penalty one degree lower than reclusion temporal, which is prision
mayor(six [6] years and one [1] day to twelve (12) years). Hence, the indeterminate
sentence of eight (8) years and one (1) day of prision mayor, as minimum, to
fourteen (14) years, eight (8) months, and one (1) day of reclusion temporal, as
maximum, imposed by the RTC, and affirmed with modification by the CA, is
correct.

The civil indemnity and moral damages awarded by the RTC and the CA were
also in order and consistent with current jurisprudence.
Civil indemnity is mandatory and granted to the heirs of the victim without
need of proof other than the commission of the crime. [24] Under prevailing
jurisprudence, the award of P50,000.00 to the heirs of the victim as civil indemnity
is proper.[25]
Moral damages must also be awarded because these are mandatory in cases
of homicide, without need of allegation and proof other than the death of the
victim.[26] The award of P50,000.00 as moral damages[27] is correct.

We must, however, modify the actual damages awarded by the CA. Actual
damages pertain to the actual expenses incurred by the victims heirs in relation to
his death, i.e., burial and funeral expenses. To justify an award therefor, it
is necessary for a party to produce competent proof or the best evidence obtainable,
such as receipts.[28] In this case, the actual expenses incurred for the wake and burial
of the victim were duly shown by receipts marked as Exhibits K, L, M, and M-1[29] in
the aggregate amount of P88,520.00. But the CA awarded only P58,520.00, which,
after a perusal of the records, appears to have been caused by the non-inclusion of
Exhibit L, a receipt for P30,000.00 paid by the victims wife to La Funeraria
Novaliches for the deceaseds autopsy and embalming treatment, and use of mortuary
equipment for the interment. Having convincingly proved the nature of the expense
in the amount of P30,000.00 in Exhibit L, it is only right to increase the actual
damages awarded to the victims heirs to P88,520.00.
WHEREFORE, premises considered, the petition is hereby DENIED. The
August 23, 2007 Decision of the Court of Appeals is AFFIRMED with
modification that the award of actual damages is increased to P88,520.00.

SO ORDERED.
SECOND DIVISION

BERNARDO B. JOSE, JR., G.R. No. 169606

Petitioner,
Present:

CARPIO, J., Chairperson,

LEONARDO-DE CASTRO,*
- versus - BRION,
DEL CASTILLO, and
ABAD, JJ.

MICHAELMAR PHILS., INC.

and MICHAELMAR SHIPPING Promulgated:
SERVICES, INC.,
Respondents. November 27, 2009
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

CARPIO, J.:

The Case

This is a petition[1] for review on certiorari under Rule 45 of the Rules of

Court. The petition challenges the 11 May 2005 Decision[2] and 5 August 2005
Resolution[3] of the Court of Appeals in CA-G.R. SP No. 83272. The Court of
Appeals set aside the 19 January[4] and 22 March[5] 2004 Resolutions of the
National Labor Relations Commission (NLRC) in NLRC NCR CA No. 036666-
03 and reinstated the 18 June 2003 Decision[6] of the Labor Arbiter in NLRC
NCR OFW Case No. (M)02-12-3137-00.

The Facts

Michaelmar Philippines, Inc. (MPI) is the Philippine agent of Michaelmar Shipping

Services, Inc. (MSSI). In an undertaking[7] dated 2 July 2002 and an employment
contract[8] dated 4 July 2002, MSSI through MPI engaged the services of Bernardo
B. Jose, Jr. (Jose, Jr.) as oiler of M/T Limar. The employment contract stated:

That the employee shall be employed on board under the following terms
and conditions:

1.1 Duration of Contract EIGHT (8) MONTHS

Position OILER
Basic Monthly Salary US$ 450.00 & US$ 39.00 TANKER ALLOWANCE
Hours of Work 48 HOURS/WEEK
Overtime US$ 386.00 FIXED OT. 105 HRS/ MOS.
Vacation Leave with Pay US$ 190.00 & US$ 150 OWNERS BONUS
Point of Hire MANILA, PHILIPPINES[9]

In connection with the employment contract, Jose, Jr. signed a declaration [10] dated
10 June 2002 stating that:

In order to implement the Drug and Alcohol Policy on board the managed
vessels the following with [sic] apply:

All alcoholic beverages, banned substances and unprescribed drugs

including but not limited to the following: Marijuana Cocaine
Phencyclidine Amphetamines Heroin Opiates are banned from Stelmar
Tankers (Management) Ltd. managed vessels.
Disciplinary action up to and including dismissal will be taken against any employee
found to be in possession of or impaired by the use of any of the above mentioned
substances.

A system of random testing for any of the above banned substances will be used to
enforce this policy. Any refusal to submit to such tests shall be deemed as a serious
breach of the employment contract and shall result to the seamans dismissal due to his
own offense.

Therefore any seaman will be instantly dismissed if:

xxx
They are found to have positive trace of alcohol or any of the banned substances in
any random testing sample.

Jose, Jr. began performing his duties on board the M/T Limar on 21 August 2002. On
8 October 2002, a random drug test was conducted on all officers and crew members
of M/T Limar at the port of Curacao. Jose, Jr. was found positive for marijuana.Jose,
Jr. was informed about the result of his drug test and was asked if he was taking any
medication. Jose, Jr. said that he was taking Centrum vitamins.

Jose, Jr. was allowed to continue performing his duties on board the M/T Limar
from 8 October to 29 November 2002. In the Sea Going Staff Appraisal
Report[11] on Jose Jr.s work performance for the period of 1 August to 28
November 2002, Jose, Jr. received a 96% total rating and was described as very
hardworking, trustworthy, and reliable.

On 29 December 2002, M/T Limar reached the next port after the random drug test
and Jose, Jr. was repatriated to the Philippines. When Jose, Jr. arrived in the
Philippines, he asked MPI that a drug test be conducted on him. MPI ignored his
request.On his own, Jose, Jr. procured drug tests from Manila Doctors
Hospital,[12] S.M. Lazo Medical Clinic, Inc.,[13] and Maritime Clinic for
International Services, Inc.[14] He was found negative for marijuana.

Jose, Jr. filed with the NLRC a complaint against MPI and MSSI for illegal
dismissal with claim for his salaries for the unexpired portion of the employment
contract.

The Labor Arbiters Ruling

In her 18 June 2003 Decision, the Labor Arbiter dismissed the complaint for lack of
merit. The Labor Arbiter held that:

Based from the facts and evidence, this office inclined [sic] to rule
in favor of the respondents: we find that complainants termination
from employment was valid and lawful. It is established that
complainant, after an unannounced drug test conducted by the
respondent principal on the officers and crew on board the vessel,
was found positive of marijuana, a prohibited drug. It is a
universally known fact the menace that drugs bring on the user as
well as to others who may have got on his way. It is noted too that
complainant worked on board a tanker vessel which carries toxic
 materials such as fuels, gasoline and other combustible materials
which require delicate and careful handling and being an oiler,
complainant is expected to be in a proper disposition. Thus, we
agree with respondents that immediate repatriation of complainant
is warranted for the safety of the vessel as well as to complainants
co-workers on board. It is therefore a risk that should be avoided
at all cost. Moreover, under the POEA Standard Employment
Contract as cited by the respondents (supra), violation of the drug
and alcohol policy of the company carries with it the penalty of
dismissal to be effected by the master of the vessel. It is also noted
that complainant was made aware of the results of the drug test as
per Drug Test Certificate dated October 29, 2002. He was not
dismissed right there and then but it was only on December 29,
2002 that he was repatriated for cause.

As to the complainants contention that the ship doctors report can not be relied upon
in the absence of other evidence supporting the doctors findings for the simple reason
that the ship doctor is under the control of the principal employer, the same is
untenable. On the contrary, the findings of the doctor on board should be given
credence as he would not make a false clarification. Dr. A.R.A Heath could not be
said to have outrageously contrived the results of the complainants drug test. We are
therefore more inclined to believe the original results of the unannounced drug test as
it was officially conducted on board the vessel rather than the subsequent testing
procured by complainant on his own initiative. The result of the original drug test is
evidence in itself and does not require additional supporting evidence except if it was
shown that the drug test was conducted not in accordance with the drug testing
procedure which is not obtaining in this particular case. [H]ence, the first test prevails.

We can not also say that respondents were motivated by ill will against the
complainant considering that he was appraised to be a good worker. For this reason
that respondents would not terminate [sic] the services of complainant were it not for
the fact that he violated the drug and alcohol policy of the company. [T]hus, we find
that just cause exist [sic] to justify the termination of complainant.[15]

Jose, Jr. appealed the Labor Arbiters 18 June 2003 Decision to the NLRC. Jose, Jr.
claimed that the Labor Arbiter committed grave abuse of discretion in ruling that he
was dismissed for just cause.

The NLRCs Ruling

In its 19 January 2004 Resolution, the NLRC set aside the Labor Arbiters 18
June 2003 Decision. The NLRC held that Jose, Jr.s dismissal was illegal and
ordered MPI and MSSI to pay Jose, Jr. his salaries for the unexpired portion
of the employment contract. The NLRC held that:

Here, a copy of the purported drug test result for Complainant

indicates, among others, the following typewritten words Hoofd:
Drs. R.R.L. Petronia Apotheker and THC-COOH POS.; the
handwritten word Marihuana; and the stamped words Dr. A.R.A.
Heath, MD, SHIPS DOCTOR and 29 OKT. 2002. However, said
test result does not contain any signature, much less the signature
 of any of the doctors whose names were printed therein (Page 45,
Records). Verily, the veracity of this purported drug test result is
questionable, hence, it cannot be deemed as substantial proof that
Complainant violated his employers no alcohol, no drug policy. In
fact, in his November 14, 2002 message to Stelmar Tanker Group,
the Master of the vessel where Complainant worked, suggested that
another drug test for complainant should be taken when the vessel
arrived [sic] in Curacao next call for final findings (Page 33,
Records), which is an indication that the Master, himself, was in
doubt with the purported drug test result. Indeed there is reason
for the Master of the vessel to doubt that Complainant was taking
in the prohibited drug marihuana. The Sea Going Staff Appraisal
Report signed by Appraiser David A. Amaro, Jr. and reviewed by
the Master of the vessel himself on complainants work
performance as Wiper from August 1, 2002 to November 28, 2002
which included a two-month period after the purported drug test,
indicates that out of a total score of 100% on Safety Consciousness
(30%), Ability (30%), Reliability (20%) and Behavior & Attitude
(20%), Complainant was assessed a score of 96% (Pages 30-31,
Records). Truly, a worker who had been taking in prohibited drug
could not have given such an excellent job
performance. Significantly, under the category Behavior &
Attitude (20%), referring to his personal relationship and his
interactions with the rest of the ships staff and his attitude towards
his job and how the rest of the crew regard him, Complainant was
assessed the full score of 20% (Page 31, Records), which belies
Respondents insinuation that his alleged offense directly affected
the safety of the vessel, its officers and crew members. Indeed, if
Complainant had been a threat to the safety of the vessel, officers
and crew members, he would not be been [sic] allowed to continue
working almost three (3) months after his alleged offense until his
repatriation on December 29, 2002. Clearly, Respondents failed to
present substantial proof that Complainants dismissal was with
just or authorized cause.

Moreover, Respondents failed to accord Complainant due process prior to his

dismissal. There is no showing that Complainants employer furnished him with a
written notice apprising him of the particular act or omission for which his dismissal
was sought and a subsequent written notice informing him of the decision to dismiss
him, much less any proof that Complainant was given an opportunity to answer and
rebut the charges against him prior to his dismissal. Worse, Respondents invoke the
provision in the employment contract which allows summary dismissal for cases
provided therein. Consequently, Respondents argue that there was no need for him to
be notified of his dismissal. Such blatant violation of basic labor law principles cannot
be permitted by this Office. Although a contract is law between the parties, the
provisions of positive law which regulate such contracts are deemed included and
shall limit and govern the relations between the parties (Asia World Recruitment, Inc.
vs. NLRC, G.R. No. 113363, August 24, 1999).

Relative thereto, it is worth noting Section 10 of Republic Act No. 8042, which
provides that In cases of termination of overseas employment without just, valid or
authorized cause as defined by law or contract, the worker shall be entitled to the full
reimbursement of his placement fee with interest of twelve percent (12%) per annum,
plus his salaries for the unexpired portion of his employment contract or for three (3)
months for every year of the unexpired term, whichever is less.[16]

MPI and MSSI filed a motion for reconsideration. In its 22 March 2004
Resolution, the NLRC denied the motion for lack of merit. MPI and MSSI filed
with the Court of Appeals a petition[17] for certiorari under Rule 65 of the Rules
of Court. MPI and MSSI claimed that the NLRC gravely abused its discretion
when it (1) reversed the Labor Arbiters factual finding that Jose, Jr. was legally
dismissed; (2) awarded Jose, Jr. his salaries for the unexpired portion of the
employment contract; (3) awarded Jose, Jr. $386 overtime pay; and (4) ruled
that Jose, Jr. perfected his appeal within the reglementary period.

The Court of Appeals Ruling

In its 11 May 2005 Decision, the Court of Appeals set aside the 19 January and 22
March 2004 Resolutions of the NLRC and reinstated the 18 June 2003 Decision of
the Labor Arbiter. The Court of Appeals held that:

The POEA standard employment contract adverted to in the labor arbiters

decision to which all seamens contracts must adhere explicitly provides
that the failure of a seaman to obey the policy warrants a penalty of
dismissal which may be carried out by the master even without a notice of
dismissal if there is a clear and existing danger to the safety of the vessel
or the crew. That the petitioners were implementing a no-alcohol, no
drug policy that was communicated to the respondent when he embarked
is not in question. He had signed a document entitled Drug and Alcohol
Declaration in which he acknowledged that alcohol beverages and
unprescribed drugs such as marijuana were banned on the vessel and that
any employee found possessing or using these substances would be
subject to instant dismissal. He undertook to comply with the policy and
abide by all the relevant rules and guidelines, including the system of
random testing that would be employed to enforce it.

We can hardly belabor the reasons and justification for this policy. The
safety of the vessel on the high seas is a matter of supreme and
unavoidable concern to all the owners, the crew and the riding public. In
the ultimate analysis, a vessel is only as seaworthy as the men who sail it,
so that it is necessary to maintain at every moment the efficiency and
competence of the crew. Without an effective no alcohol, no drug policy
on board the ship, the vessels safety will be seriously compromised. The
policy is, therefore, a reasonable and lawful order or regulation that, once
made known to the employee, must be observed by him, and the failure or
refusal of a seaman to comply with it should constitute serious misconduct
or willful disobedience that is a just cause for the termination of
employment under the Labor Code (Aparente vs. National Labor
Relations Commission, 331 SCRA 82). As the labor arbiter has discerned,
the seriousness and earnestness in the enforcement of the ban is
highlighted by the provision of the POEA Standard Employment Contract
allowing the ship master to forego the notice of dismissal requirement in
effecting the repatriation of the seaman violating it.
xxxx
 Under legal rules of evidence, not all unsigned documents or papers fail
the test of admissibility. There are kinds of evidence known as exceptions
to the hearsay rule which need not be invariably signed by the author if it
is clear that it issues from him because of necessity and under
circumstances that safeguard the trustworthiness of the paper. A number
of evidence of this sort are called entries in the course of business, which
are transactions made by persons in the regular course of their duty or
business. We agree with the labor arbiter that the drug test result
constitutes entries made in the ordinary or regular course of duty of a
responsible officer of the vessel. The tests administered to the crew were
routine measures of the vessel conducted to enforce its stated policy, and
it was a matter of course for medical reports to be issued and released by
the medical officer. The ships physician at Curacao under whom the tests
were conducted was admittedly Dr. Heath. It was under his name and with
his handwritten comments that the report on the respondent came out, and
there is no basis to suspect that these results were issued other than in the
ordinary course of his duty. As the labor arbiter points out, the drug test
report is evidence in itself and does not require additional supporting
evidence except if it appears that the drug test was conducted not in
accordance with drug testing procedures. Nothing of the sort, he says, has
even been suggested in this particular case.

The regularity of the procedure observed in the administration and reporting of the
tests is the very assurance of the reports admissibility and credibility under the laws of
the evidence. We see no reason why it cannot be considered substantial evidence,
which, parenthetically, is the lowest rung in the ladder of evidence. It is from the fact
that a report or entry is a part of the regular routine work of a business or profession
that it derives its value as legal evidence.

Then the respondent was notified of the results and allowed to explain himself. He
could not show any history of medication that could account for the traces of drugs in
his system. Despite his lack of plausible excuses, the ship captain came out in support
of him and asked his superiors to give him another chance. These developments prove
that the respondent was afforded due process consistent with the exigencies of his
service at sea. For the NLRC to annul the process because he was somehow not
furnished with written notice is already being pedantic. What is the importance to the
respondent of the difference between a written and verbal notice when he was actually
given the opportunity to be heard? x x x

The working environment in a seagoing vessel is sui generis which amply justifies the
difference in treatment of seamen found guilty of serious infractions at sea. The
POEA Standard Employment Contract allows the ship master to implement a
repatriation for just cause without a notice of dismissal if this is necessary to avoid a
clear and existing danger to the vessel. The petitioners have explained that that [sic] it
is usually at the next port of call where the offending crewman is made to
disembark. In this case, a month had passed by after the date of the medical report
before they reached the next port. We may not second-guess the judgment of the
master in allowing him to remain at his post in the meantime. It is still reasonable to
believe that the proper safeguards were taken and proper limitations observed during
the period when the respondent remained on board.

Finally, the fact that the respondent obtained negative results in subsequent drug tests
in the Philippines does not negate the findings made of his condition on board the
vessel. A drug test can be negative if the user undergoes a sufficient period of
abstinence before taking the test. Unlike the tests made at his instance, the drug test on
the vessel was unannounced. The credibility of the first test is, therefore, greater than
the subsequent ones.[18]

Jose, Jr. filed a motion[19] for reconsideration. In its 5 August 2005 Resolution, the
Court of Appeals denied the motion for lack of merit. Hence, the present petition.

In a motion[20] dated 1 August 2007, MPI and MSSI prayed that they be substituted
by OSG Ship Management Manila, Inc. as respondent in the present case. In a
Resolution[21] dated 14 November 2007, the Court noted the motion.

The Issues

In his petition dated 13 September 2005, Jose, Jr. claims that he was illegally
dismissed from employment for two reasons: (1) there is no just cause for his
dismissal because the drug test result is unsigned by the doctor, and (2) he was not
afforded due process. He stated that:

2. The purported drug test result conducted to petitioner indicates, among

others, the following: [sic] typwritten words Hool: Drs. R.R.L.. [sic]
Petronia Apotheker [sic] and :THC-COOH POS. [sic]; the handwritten
word Marihuana; and the stamped words Dr. A.R.A Heath, MD, SHIPS
DOCTOR and 29 OKT. 2002. However, said test result does not contain
any signature, much less the signature of any of the doctors whose name
[sic] were printed therein. This omission is fatal as it goes to the veracity
of the said purported drug test result. Consequently, the purported drug
test result cannot be deemed as substantial proof that petitioner violated
his employers no alcohol, no drug policy [sic].

xxxx

Even assuming arguendo that there was just cause, respondents

miserably failed to show that the presence of the petitioner in the
vessel constitutes a clear and existing danger to the safety of the crew
or the vessel. x x x

xxxx

It is a basic principle in Labor Law that in termination disputes, the burden is on the
employer to show that the dismissal was for a just and valid cause. x x x

xxxx
x x x [T]he Honorable Labor Arbiter as well as the Honorable Court of Appeals
clearly erred in ruling that there was just cause for the termination of petitioners
employment. Petitioners employment was terminated on the basis only of a mere
allegation that is unsubstantiated, unfounded and on the basis of the drug test report
that was not even signed by the doctor who purportedly conducted such test.

5. Moreover, respondents failed to observe due process in terminating petitioners

employment. There is no evidence on record that petitioner was furnished by his
employer with a written notice apprising him of the particular act or omission which is
the basis for his dismissal. Furthermore, there is also no evidence on record that the
second notice, informing petitioner of the decision to dismiss, was served to the
petitioner. There is also no proof on record that petitioner was given an opportunity to
answer and rebut the charges against him prior to the dismissal.[22]

The Courts Ruling

In its 11 May 2005 Decision, the Court of Appeals held that there was just cause for
Jose, Jr.s dismissal. The Court of Appeals gave credence to the drug test result
showing that Jose, Jr. was positive for marijuana. The Court of Appeals considered
the drug test result as part of entries in the course of business. The Court of Appeals
held that:

Under legal rules of evidence, not all unsigned documents or papers fail
the test of admissibility. There are kinds of evidence known as exceptions
to the hearsay rule which need not be invariably signed by the author if it
is clear that it issues from him because of necessity and under
circumstances that safeguard the trustworthiness of the paper. A number
of evidence of this sort are called entries in the course of business, which
are transactions made by persons in the regular course of their duty or
business. We agree with the labor arbiter that the drug test result
constitutes entries made in the ordinary or regular course of duty of
a responsible officer of the vessel. The tests administered to the crew
were routine measures of the vessel conducted to enforce its stated
policy, and it was a matter of course for medical reports to be issued
and released by the medical officer. The ships physician at Curacao
under whom the tests were conducted was admittedly Dr. Heath. It
was under his name and with his handwritten comments that the
report on the respondent came out, and there is no basis to suspect
that these results were issued other than in the ordinary course of his
duty. As the labor arbiter points out, the drug test report is evidence
in itself and does not require additional supporting evidence except if
it appears that the drug test was conducted not in accordance with
drug testing procedures. Nothing of the sort, he says, has even been
suggested in this particular case.[23] (Emphasis supplied)

Jose, Jr. claims that the Court of Appeals erred when it ruled that there was just cause
for his dismissal. The Court is not impressed. In a petition for review on certiorari
under Rule 45 of the Rules of Court, a mere statement that the Court of Appeals
erred is insufficient. The petition must state the law or jurisprudence and the
particular ruling of the appellate court violative of such law or
jurisprudence. In Encarnacion v. Court of Appeals,[24] the Court held that:

Petitioner asserts that there is a question of law involved in this

appeal. We do not think so. The appeal involves an appreciation of
facts, i.e., whether the questioned decision is supported by the evidence
and the records of the case. In other words, did the Court of Appeals
commit a reversible error in considering the trouble record of the
subject telephone? Or is this within the province of the appellate court
to consider? Absent grave abuse of discretion, this Court will not
reverse the appellate courts findings of fact.

In a petition for review under Rule 45, Rules of Court, invoking the
usual reason, i.e., that the Court of Appeals has decided a question of
substance not in accord with law or with applicable decisions of the
Supreme Court, a mere statement of the ceremonial phrase is not
sufficient to confer merit on the petition. The petition must specify the
law or prevailing jurisprudence on the matter and the particular
ruling of the appellate court violative of such law or previous doctrine
laid down by the Supreme Court.(Emphasis supplied)

In the present case, Jose, Jr. did not show that the Court of Appeals ruling is violative
of any law or jurisprudence. Section 43, Rule 130, of the Rules of Court states:

SEC. 43. Entries in the course of business. Entries made at, or near the
time of the transactions to which they refer, by a person deceased, or
unable to testify, who was in a position to know the facts therein stated,
may be received as prima facie evidence, if such person made the
entries in his professional capacity or in the performance of duty and in
the ordinary or regular course of business or duty.

In Canque v. Court of Appeals,[25] the Court laid down the requisites for admission
in evidence of entries in the course of business: (1) the person who made the entry
is dead, outside the country, or unable to testify; (2) the entries were made at or near
the time of the transactions to which they refer; (3) the person who made the entry
was in a position to know the facts stated in the entries; (4) the entries were made in
a professional capacity or in the performance of a duty; and (5) the entries were made
in the ordinary or regular course of business or duty.

Here, all the requisites are present: (1) Dr. Heath is outside the country; (2) the
entries were made near the time the random drug test was conducted; (3) Dr. Heath
was in a position to know the facts made in the entries; (4) Dr. Heath made the
entries in his professional capacity and in the performance of his duty; and (5) the
entries were made in the ordinary or regular course of business or duty.

The fact that the drug test result is unsigned does not necessarily lead to the
conclusion that Jose, Jr. was not found positive for marijuana. In KAR ASIA, Inc. v.
Corona,[26] the Court admitted in evidence unsigned payrolls. In that case, the
Court held that:

Entries in the payroll, being entries in the course of business, enjoy the
presumption of regularity under Rule 130, Section 43 of the Rules of
Court. It is therefore incumbent upon the respondents to adduce clear and
convincing evidence in support of their claim. Unfortunately, respondents
naked assertions without proof in corroboration will not suffice to
overcome the disputable presumption.

In disputing the probative value of the payrolls for December 1994, the appellate court
observed that the same contain only the signatures of Ermina Daray and Celestino
Barreto, the paymaster and the president, respectively. It further opined that the
payrolls presented were only copies of the approved payment, and not copies
disclosing actual payment.

The December 1994 payrolls contain a computation of the amounts payable to the
employees for the given period, including a breakdown of the allowances and
deductions on the amount due, but the signatures of the respondents are
conspicuously missing. Ideally, the signatures of the respondents should appear
in the payroll as evidence of actual payment. However, the absence of such
signatures does not necessarily lead to the conclusion that the December 1994
COLA was not received. (Emphasis supplied)

In the present case, the following facts are established (1) random drug tests are
regularly conducted on all officers and crew members of M/T Limar; (2) a random
drug test was conducted at the port of Curacao on 8 October 2002; (3) Dr. Heath was
the authorized physician of M/T Limar; (4) the drug test result of Jose, Jr. showed
that he was positive for marijuana; (5) the drug test result was issued under Dr.
Heaths name and contained his handwritten comments. The Court of Appeals found
that:

The tests administered to the crew were routine measures of the vessel
conducted to enforce its stated policy, and it was a matter of course for
medical reports to be issued and released by the medical officer. The ships
physician at Curacao under whom the tests were conducted was
admittedly Dr. Heath. It was under his name and with his handwritten
comments that the report on the respondent came out, and there is no basis
to suspect that these results were issued other than in the ordinary course
of his duty. As the labor arbiter points out, the drug test report is evidence
in itself and does not require additional supporting evidence except if it
appears that the drug test was conducted not in accordance with drug
testing procedures. Nothing of the sort, he says, has even been suggested
in this particular case.[27]

Factual findings of the Court of Appeals are binding on the Court. Absent grave
abuse of discretion, the Court will not disturb the Court of Appeals factual
findings.[28] In Encarnacion,[29] the Court held that, unless there is a clearly grave or
whimsical abuse on its part, findings of fact of the appellate court will not be
disturbed. The Supreme Court will only exercise its power of review in known
exceptions such as gross misappreciation of evidence or a total void of
evidence. Jose, Jr. failed to show that the Court of Appeals gravely abused its
discretion.

Article 282(a) of the Labor Code states that the employer may terminate an
employment for serious misconduct. Drug use in the premises of the employer
constitutes serious misconduct. In Bughaw, Jr. v. Treasure Island Industrial
Corporation,[30] the Court held that:

The charge of drug use inside the companys premises and during
working hours against petitioner constitutes serious misconduct,
which is one of the just causes for termination. Misconduct is
improper or wrong conduct. It is the transgression of some established
and definite rule of action, a forbidden act, a dereliction of duty, willful
in character, and implies wrongful intent and not merely an error in
judgment. The misconduct to be serious within the meaning of the Act
must be of such a grave and aggravated character and not merely trivial
or unimportant. Such misconduct, however serious, must nevertheless,
in connection with the work of the employee, constitute just cause for
his separation.This Court took judicial notice of scientific findings
that drug abuse can damage the mental faculties of the user. It is
beyond question therefore that any employee under the influence
of drugs cannot possibly continue doing his duties without posing a
serious threat to the lives and property of his co-workers and even
his employer. (Emphasis supplied)

Jose, Jr. claims that he was not afforded due process. The Court agrees. There are
two requisites for a valid dismissal: (1) there must be just cause, and (2) the
employee must be afforded due process.[31] To meet the requirements of due process,
the employer must furnish the employee with two written notices a notice apprising
the employee of the particular act or omission for which the dismissal is sought and
another notice informing the employee of the employers decision to
dismiss. In Talidano v. Falcon Maritime & Allied Services, Inc.,[32] the Court held
that:

[R]espondent failed to comply with the procedural due process required

for terminating the employment of the employee. Such requirement is not
a mere formality that may be dispensed with at will. Its disregard is a
matter of serious concern since it constitutes a safeguard of the highest
order in response to mans innate sense of justice. The Labor Code does
not, of course, require a formal or trial type proceeding before an erring
employee may be dismissed. This is especially true in the case of a vessel
on the ocean or in a foreign port. The minimum requirement of due
process termination proceedings, which must be complied with even
with respect to seamen on board a vessel, consists of notice to the
employees intended to be dismissed and the grant to them of an
opportunity to present their own side of the alleged offense or
misconduct, which led to the managements decision to terminate. To
meet the requirements of due process, the employer must furnish the
worker sought to be dismissed with two written notices before
termination of employment can be legally effected, i.e., (1) a notice
 which apprises the employee of the particular acts or omissions for
which his dismissal is sought; and (2) the subsequent notice after due
hearing which informs the employee of the employers decision to
dismiss him. (Emphasis supplied)
In the present case, Jose, Jr. was not given any written notice about his
dismissal. However, the propriety of Jose, Jr.s dismissal is not affected by the lack
of written notices. When the dismissal is for just cause, the lack of due process does
not render the dismissal ineffectual but merely gives rise to the payment of P30,000
in nominal damages.[33]

WHEREFORE, the petition is DENIED. The 11 May 2005 Decision and 5 August
2005 Resolution of the Court of Appeals in CA-G.R. SP No. 83272
are AFFIRMED with the MODIFICATION that OSG Ship Management Manila,
Inc. is ordered to pay Bernardo B. Jose, Jr. P30,000 in nominal damages.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 170604 September 2, 2013

HEIRS OF MARGARITA PRODON, PETITIONERS,

vs.
HEIRS OF MAXIMO S. ALVAREZ AND VALENTINA CLAVE, REPRESENTED BY REV. MAXIMO
ALVAREZ, JR.,RESPONDENTS.

DECISION

BERSAMIN, J.:

The Best Evidence Rule applies only when the terms of a written document are the subject of the
inquiry. In an action for quieting of title based on the inexistence of a deed of sale with right to
repurchase that purportedly cast a cloud on the title of a property, therefore, the Best Evidence Rule
does not apply, and the defendant is not precluded from presenting evidence other than the original
document.

The Case

This appeal seeks the review and reversal of the decision promulgated on August 18,
2005,1 whereby the Court of Appeals (CA) reversed the judgment rendered on November 5, 1997 by
the Regional Trial Court (RTC), Branch 35, in Manila in Civil Case No. 96-78481 entitled Heirs of
Maximo S Alvarez and Valentina Clave, represented by Rev. Maximo S. Alvarez and Valentina
Clave, represented by Rev. Maximo Alvarez, Jr. v. Margarita Prodon and the Register of Deeds of
the City of Manila dismissing the respondents’ action for quieting of title.2

Antecedents

In their complaint for quieting of title and damages against Margarita Prodon,3 the respondents
averred as the plaintiffs that their parents, the late spouses Maximo S. Alvarez, Sr. and Valentina
Clave, were the registered owners of that parcel of land covered by Transfer Certificate of Title
(TCT) No. 84797 of the Register of Deeds of Manila; that their parents had been in possession of the
property during their lifetime; that upon their parents’ deaths, they had continued the possession of
the property as heirs, paying the real property taxes due thereon; that they could not locate the
owner’s duplicate copy of TCT No. 84797, but the original copy of TCT No. 84797 on file with the
Register of Deeds of Manila was intact; that the original copy contained an entry stating that the
property had been sold to defendant Prodon subject to the right of repurchase; and that the entry
had been maliciously done by Prodon because the deed of sale with right to repurchase covering the
property did not exist. Consequently, they prayed that the entry be cancelled, and that Prodon be
adjudged liable for damages.

The entry sought to be cancelled reads:

ENTRY NO. 3816/T-84797 – SALE W/ RIGHT TO REPURCHASE IN FAVOR OF: MARGARITA

PRODON, SINGLE, FOR THE SUM OF ₱120,000.00, THE HEREIN REGISTERED OWNER
RESERVING FOR HIMSELF THE RIGHTS TO REPURCHASE SAID PROPERTY FOR THE SAME
AMOUNT WITHIN THE PERIOD OF SIX MONTH (sic) FROM EXECUTION THEREOF. OTHER
CONDITION SET FORTH IN (DOC. NO. 321, PAGE 66, BOOK NO. VIII OF LISEO A. RAZON,
NOT.PUB. OF MANILA)

DATE OF INSTRUMENT – SEPT. 9, 1975

DATE OF INSCRIPTION – SEPT. 10, 1975,

AT 3:42 P.M.4

In her answer,5 Prodon claimed that the late Maximo Alvarez, Sr. had executed on September 9,
1975 the deed of sale with right to repurchase; that the deed had been registered with the Register
of Deeds and duly annotated on the title; that the late Maximo Alvarez, Sr. had been granted six
months from September 9, 1975 within which to repurchase the property; and that she had then
become the absolute owner of the property due to its non-repurchase within the given 6-month
period.

During trial, the custodian of the records of the property attested that the copy of the deed of sale
with right to repurchase could not be found in the files of the Register of Deeds of Manila.

On November 5, 1997, the RTC rendered judgment,6 finding untenable the plaintiffs’ contention that
the deed of sale with right to repurchase did not exist. It opined that although the deed itself could
not be presented as evidence in court, its contents could nevertheless be proved by secondary
evidence in accordance with Section 5, Rule 130 of the Rules of Court, upon proof of its execution or
existence and of the cause of its unavailability being without bad faith. It found that the defendant
had established the execution and existence of the deed, to wit:

In the case under consideration, the execution and existence of the disputed deed of sale with right
to repurchase accomplished by the late Maximo Alvarez in favor of defendant Margarita Prodon has
been adequately established by reliable and trustworthy evidences (sic). Defendant Prodon swore
that on September 9, 1975 she purchased the land covered by TCT No. 84747 (Exhibit 1) from its
registered owners Maximo S. Alvarez, Sr. and Valentina Clave (TSN, Aug. 1, 1997, pp.5-7); that the
deed of sale with right to repurchase was drawn and prepared by Notary Public Eliseo Razon (Ibid.,
p. 9); and that on September 10, 1975, she registered the document in the Register of Deeds of
Manila (Ibid., pp.18-19).

The testimony of Margarita Prodon has been confirmed by the Notarial Register of Notary Public
Eliseo Razon dated September 10, 1975 (Exhibit 2), and by the Primary Entry Book of the Register
of Deeds of Manila (Exhibit 4).

Page 66 of Exhibit 2 discloses, among others, the following entries, to wit: "No. 321; Nature of
Instrument: Deed of Sale with Right to Repurchase; Name of Persons: Maximo S. Alvarez and
Valentina Alvarez (ack.); Date and Month: 9 Sept." (Exhibit 2-a).

Exhibit 4, on the other hand, also reveals the following data, to wit: ‘Number of Entry: 3816; Month,
Day and Year: Sept. 10, 1975; Hour and Minute: 3:42 p.m.; Nature of Contract: Sale with Right to
Repurchase; Executed by: Maximo S. Alvarez; In favor: Margarita Prodon; Date of Document: 9-9-
75; Contract value: 120,000.’ (Exhibit 4-a). Under these premises the Court entertains no doubt
about the execution and existence of the controverted deed of sale with right to repurchase.7

The RTC rejected the plaintiffs’ submission that the late Maximo Alvarez, Sr. could not have
executed the deed of sale with right to repurchase because of illness and poor eyesight from
cataract. It held that there was no proof that the illness had rendered him bedridden and immobile;
and that his poor eyesight could be corrected by wearing lenses.

The RTC concluded that the original copy of the deed of sale with right to repurchase had been lost,
and that earnest efforts had been exerted to produce it before the court. It believed Jose Camilon’s
testimony that he had handed the original to one Atty. Anacleto Lacanilao, but that he could not
anymore retrieve such original from Atty. Lacanilao because the latter had meanwhile suffered from
a heart ailment and had been recuperating.

Ruling of the CA
On appeal, the respondents assigned the following errors, namely:

A.

THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE DUE EXECUTION AND
EXISTENCE OF THE QUESTIONED DEED OF SALE WITH RIGHT TO REPURCHASE HAS BEEN
DULY PROVED BY THE DEFENDANT.

B.

THE TRIAL COURT GRAVELY ERRED IN ADMITTING THE PIECES OF EVIDENCE PRESENTED
BY THE DEFENDANTS AS PROOFS OF THE DUE EXECUTION AND EXISTENCE OF THE
QUESTIONED DEED OF SALE WITH RIGHT TO REPURCHASE.

C.

THE TRIAL COURT SERIOUSLY ERRED IN FINDING THAT THE QUESTIONED DEED OF SALE
WITH RIGHT TO REPURCHASE HAS BEEN LOST OR OTHERWISE COULD NOT BE
PRODUCED IN COURT WITHOUT THE FAULT OF THE DEFENDANT.

D.

THE TRIAL COURT GRAVELY ERRED IN REJECTING THE PLAINTIFFS’ CLAIM THAT THEIR
FATHER COULD NOT HAVE EXECUTED THE QUESTIONED DOCUMENT AT THE TIME OF ITS
ALLEGED EXECUTION.8

On August 18, 2005, the CA promulgated its assailed decision, reversing the RTC, and ruling as
follows:

The case of the Department of Education Culture and Sports (DECS) v. Del Rosario in GR No.
146586 (January 26, 2005) is instructive in resolving this issue. The said case held:

"Secondary evidence of the contents of a document refers to evidence other than the original
document itself. A party may introduce secondary evidence of the contents of a written instrument
not only when the original is lost or destroyed, but also when it cannot be produced in court,
provided there is no bad faith on the part of the offeror. However, a party must first satisfactorily
explain the loss of the best or primary evidence before he can resort to secondary evidence. A party
must first present to the court proof of loss or other satisfactory explanation for non-production of the
original instrument. The correct order of proof is as follows: existence, execution, loss, contents,
although the court in its discretion may change this order if necessary."

It is clear, therefore, that before secondary evidence as to the contents of a document may be
admitted in evidence, the existence of [the] document must first be proved, likewise, its execution
and its subsequent loss.

In the present case, the trial court found all three (3) prerequisites ha[ve] been established by
Margarita Prodon. This Court, however, after going through the records of the case, believes
otherwise. The Court finds that the following circumstances put doubt on the very existence of the
alleged deed of sale. Evidence on record showed that Maximo Alvarez was hospitalized between
August 23, 1975 to September 3, 1975 (Exhibit "K"). It was also established by said Exhibit "L" that
Maximo Alvarez suffered from paralysis of half of his body and blindness due to cataract. It should
further be noted that barely 6 days later, on September 15, 1975, Maximo Alvarez was again
hospitalized for the last time because he died on October of 1975 without having left the hospital.
This lends credence to plaintiffs-appellants’ assertion that their father, Maximo Alvarez, was not
physically able to personally execute the deed of sale and puts to serious doubt [on] Jose Camilion’s
testimony that Maximo Alvarez, with his wife, went to his residence on September 5, 1975 to sell the
property and that again they met on September 9, 1975 to sign the alleged deed of sale (Exhibits "A"
and "1"). The Court also notes that from the sale in 1975 to 1996 when the case was finally filed,
defendant-appellee never tried to recover possession of the property nor had she shown that she
ever paid Real Property Tax thereon. Additionally, the Transfer Certificate of Title had not been
transferred in the name of the alleged present owner. These actions put to doubt the validity of the
claim of ownership because their actions are contrary to that expected of legitimate owners of
property.

Moreover, granting, in arguendo, that the deed of sale did exist, the fact of its loss had not been duly
established. In De Vera, et al. v Sps. Aguilar (218 SCRA 602 1993), the Supreme Court held that after
proof of the execution of the Deed it must also be established that the said document had been lost
or destroyed, thus:
"After the due execution of the document has been established, it must next be proved that said
document has been lost or destroyed. The destruction of the instrument may be proved by any
person knowing the fact. The loss may be shown by any person who knew the fact of its loss, or by
anyone who had made, in the judgment of the court, a sufficient examination in the place or places
where the document or papers of similar character are usually kept by the person in whose custody
the document lost was, and has been unable to find it; or who has made any other investigation
which is sufficient to satisfy the court that the instrument is indeed lost.

However, all duplicates or counterparts must be accounted for before using copies. For, since all the
duplicates or multiplicates are parts of the writing itself to be proved, no excuse for non-production of
the writing itself can be regarded as established until it appears that all of its parts are unavailable
(i.e. lost, retained by the opponent or by a third person or the like).

In the case at bar, Atty. Emiliano Ibasco, Jr., notary public who notarized the document testified that
the alleged deed of sale has about four or five original copies. Hence, all originals must be
accounted for before secondary evidence can be given of any one. This[,] petitioners failed to do.
Records show that petitioners merely accounted for three out of four or five original copies." (218
SCRA at 607-608)

In the case at bar, Jose Camilion’s testimony showed that a copy was given to Atty. Anacleto
Lacanilao but he could not recover said copy. A perusal of the testimony does not convince this
Court that Jose Camilion had exerted sufficient effort to recover said copy. x x x

xxxx

The foregoing testimony does not convince this Court that Jose Camilion had exerted sufficient effort
to obtain the copy which he said was with Atty. Lacanilao. It should be noted that he never claimed
that Atty. Lacanilao was already too sick to even try looking for the copy he had. But even assuming
this is to be so, Jose Camilion did not testify that Atty. Lacanilao had no one in his office to help him
find said copy. In fine, this Court believes that the trial court erred in admitting the secondary
evidence because Margarita Prodon failed to prove the loss or destruction of the deed.

In fine, the Court finds that the secondary evidence should not have been admitted because
Margarita Prodon failed to prove the existence of the original deed of sale and to establish its loss.

xxxx

WHEREFORE, in view of the foregoing, the Decision of the Regional Trial Court of Manila, Branch
35 in Civil Case No. 96-78481 is hereby REVERSED and a new one entered ordering the
cancellation of Entry No. 3816/T-84797 inscribed at the back of TCT No. 84797 in order to remove
the cloud over plaintiff-appellants’ title.

SO ORDERED.9

The heirs of Margarita Prodon (who meanwhile died on March 3, 2002) filed an Omnibus Motion for
Substitution of Defendant and for Reconsideration of the Decision,10 wherein they alleged that the
CA erred: (a) in finding that the pre-requisites for the admission of secondary evidence had not been
complied with; (b) in concluding that the late Maximo Alvarez, Sr. had been physically incapable of
personally executing the deed of sale with right to repurchase; and (c) in blaming them for not
recovering the property, for not paying the realty taxes thereon, and for not transferring the title in
their names.

On November 22, 2005, the CA issued itsresolution,11 allowing the substitution of the heirs of
Margarita Prodon, and denying their motion for reconsideration for its lack of merit.

Hence, the heirs of Margarita Prodon (petitioners) have appealed to the Court through petition for
review on certiorari.

Issues

In this appeal, the petitioners submit the following as issues, namely: (a) whether the pre-requisites
for the admission of secondary evidence had been complied with; (b) whether the late Maximo
Alvarez, Sr. had been physically incapable of personally executing the deed of sale with right to
repurchase;and (c) whether Prodon’s claim of ownership was already barred by laches.12

Ruling

The appeal has no merit.

1.

Best Evidence Rulewas not applicable herein

We focus first on an unseemly error on the part of the CA that, albeit a harmless one, requires us to
re-examine and rectify in order to carry out our essential responsibility of educating the Bench and
the Bar on the admissibility of evidence. An analysis leads us to conclude that the CA and the RTC
both misapplied the Best Evidence Rule to this case, and their misapplication diverted the attention
from the decisive issue in this action for quieting of title. We shall endeavor to correct the error in
order to turn the case to the right track.

Section 3, Rule 130 of the Rules of Court embodies the Best Evidence

Rule, to wit:

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

(a) When the original has been lost or destroyed, or cannot be produced in court, without bad
faith on the part of the offeror;

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

(c) When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from them
is only the general result of the whole; and

(d) When the original is a public record in the custody of a public officer or is recorded in a
public office.

The Best Evidence Rule stipulates that in proving the terms of a written document the original of the
document must be produced in court. The rule excludes any evidence other than the original writing
to prove the contents thereof, unless the offeror proves: (a) the existence or due execution of the
original; (b) the loss and destruction of the original, or the reason for its non-production in court; and
(c) the absence of bad faith on the part of the offeror to which the unavailability of the original can be
attributed.13

The primary purpose of the Best Evidence Rule is to ensure that the exact contents of a writing are
brought before the court,14 considering that (a) the precision in presenting to the court the exact
words of the writing is of more than average importance, particularly as respects operative or
dispositive instruments, such as deeds, wills and contracts, because a slight variation in words may
mean a great difference in rights; (b) there is a substantial hazard of inaccuracy in the human
process of making a copy by handwriting or typewriting; and (c) as respects oral testimony
purporting to give from memory the terms of a writing, there is a special risk of error, greater than in
the case of attempts at describing other situations generally.15 The rule further acts as an insurance
against fraud.16Verily, if a party is in the possession of the best evidence and withholds it, and seeks
to substitute inferior evidence in its place, the presumption naturally arises that the better evidence is
withheld for fraudulent purposes that its production would expose and defeat.17 Lastly, the rule
protects against misleading inferences resulting from the intentional or unintentional introduction of
selected portions of a larger set of writings.18

But the evils of mistransmission of critical facts, fraud, and misleading inferences arise only when the
issue relates to the terms of the writing. Hence, the Best Evidence Rule applies only when the terms
of a writing are in issue. When the evidence sought to be introduced concerns external facts, such
as the existence, execution or delivery of the writing, without reference to its terms, the Best
Evidence Rule cannot be invoked.19 In such a case, secondary evidence may be admitted even
without accounting for the original.

This case involves an action for quieting of title, a common-law remedy for the removal of any cloud
or doubt or uncertainty on the title to real property by reason of any instrument, record, claim,
encumbrance, or proceeding that is apparently valid or effective, but is, in truth and in fact, invalid,
ineffective, voidable, or unenforceable, and may be prejudicial to said title. In such an action, the
competent court is tasked to determine the respective rights of the complainant and other claimants
to place things in their proper place and to make the one who has no rights to said immovable
respect and not disturb the other. The action is for the benefit of both, so that he who has the right
would see every cloud of doubt over the property dissipated, and he can thereafter fearlessly
introduce any desired improvements, as well as use, and even abuse the property. For an action to
quiet title to prosper, two indispensable requisites must concur, namely: (a) the plaintiff or
complainant has a legal or an equitable title to or interest in the real property subject of the action;
and (b) the deed, claim, encumbrance, or proceeding claimed to be casting cloud on his title must be
shown to be in fact invalid or inoperative despite its prima facie appearance of validity or legal
efficacy.20

The action for quieting of title may be based on the fact that a deed is invalid, ineffective, voidable, or
unenforceable. The terms of the writing may or may not be material to an action for quieting of title,
depending on the ground alleged by the plaintiff. For instance, when an action for quieting of title is
based on the unenforceability of a contract for not complying with the Statute of Frauds, Article 1403
of the Civil Code specifically provides that evidence of the agreement cannot be received without the
writing, or a secondary evidence of its contents. There is then no doubt that the Best Evidence Rule
will come into play.

It is not denied that this action does not involve the terms or contents of the deed of sale with right to
repurchase. The principal issue raised by the respondents as the plaintiffs, which Prodon challenged
head on, was whether or not the deed of sale with right to repurchase, duly executed by the late
Maximo Alvarez, Sr., had really existed. They alleged in the complaint that:

xxxx

9. Such entry which could have been maliciously and deliberately done by the defendant Margarita
Prodon created cloud and [is] prejudicial to the title of the property subject matter of this case, since
while it is apparently valid or effective, but in truth and in fact it is invalid, ineffective or unenforceable
inasmuch that the instrument purporting to be a Deed of Sale with right of repurchase mentioned in
the said entry does not exist.21

xxxx

On her part, Prodon specifically denied the allegation, averring in her answer that "sometime [o]n
September 9, 1975, deceased Maximo S. Alvarez lawfully entered into a Contract of Sale with Right
to Repurchase, object of which is the titled lot located at Endaya Street, Tondo, Manila, in favor of
defendant."22 In the pre-trial order, the RTC defined the issue to be tried as "[w]hether or not the
alleged document mentioned in the said entry is existing, valid or unenforceable,"23 and did not
include the terms of the deed of sale with right to repurchase among the issues.

Apparently, the parties were fully cognizant of the issues as defined, for none of them thereafter
ventured to present evidence to establish the terms of the deed of sale with right to repurchase. In
the course of the trial, however, a question was propounded to Prodon as to who had signed or
executed the deed, and the question was objected to based on the Best Evidence Rule. The RTC
then sustained the objection.24 At that point began the diversion of the focus in the case. The RTC
should have outrightly overruled the objection because the fact sought to be established by the
requested testimony was the execution of the deed, not its terms.25 Despite the fact that the terms of
the writing were not in issue, the RTC inexplicably applied the Best Evidence Rule to the case and
proceeded to determine whether the requisites for the admission of secondary evidence had been
complied with, without being clear as to what secondary evidence was sought to be excluded. In the
end, the RTC found in its judgment that Prodon had complied with the requisites for the introduction
of secondary evidence, and gave full credence to the testimony of Jose Camilon explaining the non-
production of the original. On appeal, the CA seconded the RTC’s mistake by likewise applying the
Best Evidence Rule, except that the CA concluded differently, in that it held that Prodon had not
established the existence, execution, and loss of the original document as the pre-requisites for the
presentation of secondary evidence. Its application of the Best Evidence Rule naturally led the CA to
rule that secondary evidence should not have been admitted, but like the RTC the CA did not state
what excluded secondary evidence it was referring to.

Considering that the Best Evidence Rule was not applicable because the terms of the deed of sale
with right to repurchase were not the issue, the CA did not have to address and determine whether
the existence, execution, and loss, as pre-requisites for the presentation of secondary evidence, had
been established by Prodon’s evidence. It should have simply addressed and determined whether or
not the "existence" and "execution" of the deed as the facts in issue had been proved by
preponderance of evidence.

Indeed, for Prodon who had the burden to prove the existence and due execution of the deed of sale
with right to repurchase, the presentation of evidence other than the original document, like the
testimonies of Prodon and Jose Camilon, the Notarial Register of Notary Eliseo Razon, and the
Primary Entry Book of the Register of Deeds, would have sufficed even without first proving the loss
or unavailability of the original of the deed.

2.
Prodon did not preponderantly establish the existence and due execution of the deed of sale with
right to repurchase

The foregoing notwithstanding, good trial tactics still required Prodon to establish and explain the
loss of the original of the deed of sale with right to repurchase to establish the genuineness and due
execution of the deed.26 This was because the deed, although a collateral document, was the
foundation of her defense in this action for quieting of title.27 Her inability to produce the original
logically gave rise to the need for her to prove its existence and due execution by other means that
could only be secondary under the rules on evidence. Towards that end, however, it was not
required to subject the proof of the loss of the original to the same strict standard to which it would
be subjected had the loss or unavailability been a precondition for presenting secondary evidence to
prove the terms of a writing.

A review of the records reveals that Prodon did not adduce proof sufficient to show the lossor
explain the unavailability of the original as to justify the presentation of secondary evidence.
Camilon, one of her witnesses, testified that he had given the original to her lawyer, Atty. Anacleto
Lacanilao, but that he (Camilon) could not anymore retrieve the original because Atty. Lacanilao had
been recuperating from his heart ailment. Such evidence without showing the inability to locate the
original from among Atty. Lacanilao’s belongings by himself or by any of his assistants or
representatives was inadequate. Moreover, a duplicate original could have been secured from
Notary Public Razon, but no effort was shown to have been exerted in that direction.

In contrast, the records contained ample indicia of the improbability of the existence of the deed.
Camilon claimed that the late Maximo Alvarez, Sr. had twice gone to his residence in Meycauayan,
Bulacan, the first on September 5, 1975, to negotiate the sale of the property in question, and the
second on September 9, 1975, to execute the deed of sale with right to repurchase, viz:

Do you also know the deceased plaintiff in this case, Maximo Alvarez, Sr. and his wife Valentina
Clave, Mr. Witness?

Yes, sir.

Under what circumstance were you able to know the deceased plaintiff Maximo Alvarez, Sr. and his
wife?

When they went to our house, sir.

When was this specifically?

Sometime the first week of September or about September 5, 1975, sir.

What was the purpose of the spouses Maximo and Valentina in meeting you on that date?

They were selling a piece of land, sir.

xxxx

At the time when the spouses Maximo Alvarez, Sr. and Valentina Clave approached you to sell their
piece of land located at Endaya, Tondo, Manila, what document, if any, did they show you?
A

The title of the land, sir.

xxxx

You said that on the first week of September or September 5, 1975 spouses Maximo and Valentina
approached you at the time, what did you tell the spouses, if any?

I asked them to come back telling them that I was going to look for a buyer, sir.

xxxx

You said that you told the spouse[s] Alvarez to just come back later and that you will look for a
buyer, what happened next, if any?

I went to see my aunt Margarita Prodon, sir.

What did you tell your aunt Margarita Prodon?

I convinced her to buy the lot.

ATTY. REAL

What was the reply of Margarita Prodon, if any?

She agreed, provided that she should meet the spouses, sir.

After Margarita Prodon told you that[,] what happened next, if any?

I waited for the spouses Alvarez to bring them to my aunt, sir.

Were you able to finally bring the spouses before Margarita Prodon?

Valentina Clave returned to our house and asked me if they can now sell the piece of land, sir.

What did you tell Valentina Clave?

A
Q

We went to the house of my aunt so she can meet her personally, sir.

And did the meeting occur?

WITNESS

Yes, sir.

ATTY. REAL

What happened at the meeting?

I told Valentina Clave in front of the aunt of my wife that they, the spouses, wanted to sell the land,
sir.

What was the reply of your aunt Margarita Prodon at the time?

That Valentina Clave should come back with her husband because she was going to buy the lot,
sir.28

The foregoing testimony could not be credible for the purpose of proving the due execution of the
deed of sale with right to repurchase for three reasons. 1âw phi 1

The first is that the respondents preponderantly established that the late Maximo Alvarez, Sr. had
been in and out of the hospital around the time that the deed of sale with right to repurchase had
been supposedly executed on September 9, 1975. The records manifested that he had been
admitted to the Veterans Memorial Hospital in Quezon City on several occasions, and had then been
diagnosed with the serious ailments or conditions, as follows:

Period of confinement Diagnosis

March 31 – May 19, 1975
• Prostatitis, chronic
• Arteriosclerotic heart disease
• Atrial fibrillation
• Congestive heart failure
• CFC III29

June 2- June 6, 1975 • Chest pains (Atrial Flutter)

August 23-September 3, 1975
• Painful urination (Chronic
prostatitis)30
• Arteriosclerotic heart disease
• Congestive heart failure, mild
• Atrial fibrillation
• Cardiac functional capacity III-B31

September 15-October 2, 1975 • Arteriosclerotic heart disease

• Atrial fibrillation
• Congestive heart failure
• Pneumonia
• Urinary tract infection
• Cerebrovascular accident, old
• Upper GI bleeding probably
secondary to stress ulcers32
The medical history showing the number of very serious ailments the late Maximo Alvarez, Sr. had
been suffering from rendered it highly improbable for him to travel from Manila all the way to
Meycauayan, Bulacan, where Prodon and Camilon were then residing in order only to negotiate and
consummate the sale of the property. This high improbability was fully confirmed by his son,
Maximo, Jr., who attested that his father had been seriously ill, and had been in and out of the
hospital in 1975.33 The medical records revealed, too, that on September 12, 1975, or three days
prior to his final admission to the hospital, the late Maximo Alvarez, Sr. had suffered from "[h]igh
grade fever, accompanied by chills, vomiting and cough productive of whitish sticky sputum;"had
been observed to be "conscious" but "weak" and "bedridden" with his heart having "faint" sounds,
irregular rhythm, but no murmurs; and his left upper extremity and left lower extremity had suffered
90% motor loss.34 Truly, Prodon’s allegation that the deed of sale with right to repurchase had been
executed on September 9, 1975 could not command belief.

The second is that the annotation on TCT No. 84797 of the deed of sale with right to repurchase and
the entry in the primary entry book of the Register of Deeds did not themselves establish the
existence of the deed. They proved at best that a document purporting to be a deed of sale with right
to repurchase had been registered with the Register of Deeds. Verily, the registration alone of the
deed was not conclusive proof of its authenticity or its due execution by the registered owner of the
property, which was precisely the issue in this case. The explanation for this is that registration,
being a specie of notice, is simply a ministerial act by which an instrument is inscribed in the records
of the Register of Deeds and annotated on the dorsal side of the certificate of title covering the land
subject of the instrument.35 It is relevant to mention that the law on land registration does not require
that only valid instruments be registered, because the purpose of registration is only to give notice.36

By the same token, the entry in the notarial register of Notary Public Razon could only be proof that
a deed of sale with right to repurchase had been notarized by him, but did not establish the due
execution of the deed.

The third is that the respondents’ remaining in the peaceful possession of the property was further
convincing evidence demonstrating that the late Maximo Alvarez, Sr. did not execute the deed of
sale with right to repurchase. Otherwise, Prodon would have herself asserted and exercised her right
to take over the property, legally and physically speaking, upon the expiration in 1976 of the
repurchase period stipulated under the deed, including transferring the TCT in her name and paying
the real property taxes due on the properly. Her inaction was an index of the falsity of her claim
against the respondents.

In view of the foregoing circumstances, we concur with the CA that the respondents preponderantly,
proved that the deed of sale with right to repurchase executed by the late Maximo Alvarez, Sr. did
not exist in fact.

WHEREFORE, the Court AFFIRMS the decision promulgated on August 18, 2005 by the Court of
Appeals in C.A.-G.R. CV No. 58624 entitled Heirs of Maximo S. Alvarez and Valentina Clave,
represented by Rev. Maximo Alvarez, Jr. v. Margarita Prodon and the Register of Deeds of the City
Manila; and ORDERS the petitioners to pay the costs of suit.

SO ORDERED.

NORMALLAH A. PACASUM, G.R. No. 180314

Petitioner,

Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
- versus -
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
 TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
PEOPLE OF THE PHILIPPINES,
Respondent. NACHURA,
DE CASTRO,
BRION,
PERALTA, and
BERSAMIN, JJ.

Promulgated:

April 16, 2009

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

DECISION

CHICO-NAZARIO, J.:

Before Us is a petition for review on certiorari which seeks to set aside the
Decision[1] of the Sandiganbayan in Crim. Case No. 27483 promulgated on 7 August
2007 which found petitioner Normallah A. Pacasum guilty of Falsification under
Article 171, paragraph 1 of the Revised Penal Code, and its Resolution[2] dated 22
October 2007 denying petitioners Motion for Reconsideration and Motion for New
Trial/Reception of Newly Discovered Evidence.

On 2 May 2002, petitioner was charged before the Sandiganbayan with

Falsification of Public Documents, defined and punished under paragraph 1 of
Article 171 of the Revised Penal Code, committed as follows:

That on or about August 22-23, 2000, or sometime prior or subsequent

thereto in Cotabato City, Philippines and within the jurisdiction of this
Honorable Court, the accused NORMALLAH A. PACASUM, a high ranking
public official being the Regional Secretary of the Department of Tourism
in the Autonomous Region in Muslim Mindanao, Cotabato City, while in
 the performance of her official functions, committing the offense in
relation thereto, taking advantage of her official position, did then and
there, willfully, unlawfully and feloniously falsified her Employee
Clearance[3] submitted to the Office of the Regional Governor of the
Autonomous Region in Muslim Mindanao, by imitating the signature of
Laura Y. Pangilan, the Supply officer I of the DOT-ARMM, for the purpose
of claiming her salary for the months of August and September 2000.[4]

On 29 May 2002, petitioner filed a Motion for Reinvestigation asking that she be
given the opportunity to file her counter-affidavit during a preliminary investigation
in order that her right to due process would not be violated.[5] Petitioner further
filed an Urgent Motion for Preliminary Investigation and/or Reinvestigation with a
Prayer to Recall or Defer Issuance of Warrant of Arrest.[6]

On 4 May 2004, the Sandiganbayan denied petitioners motion for preliminary

investigation/reinvestigation decreeing that petitioner was not deprived of the
opportunity to be heard before the Office of the Ombudsman as she had waived
her right to be heard on preliminary investigation.[7]

On 16 June 2004, petitioner, assisted by counsel de parte, pleaded not guilty to the
crime charged.[8] Thereafter, pre-trial conference was held and the Sandiganbayan
issued a Pre-Trial Order.[9] The parties did not enter any admission or stipulation of
facts, and agreed that the issues to be resolved were as follows:

1. Whether or not accused Normallah Pacasum, being then the Regional

Secretary of the Department of Tourism in the Autonomous Region in
Muslim Mindanao, Cotabato City, falsified her Employee Clearance,
which she submitted to the Office of the Regional Governor of the
Autonomous Region in Muslim Mindanao, by imitating the signature
of Laura Y. Pangilan, the Supply Officer I of the DOT-ARMM, for
purposes of claiming her salary for the months of August and
September 2000;

2. Whether or not the accused took advantage of her official position in

order to commit the crime charged.[10]

The prosecution presented three witnesses, namely: Subaida K.

Pangilan,[11] former Human Resource Management Officer V of the Autonomous
Region in Muslim Mindanao (ARMM); Laura Y. Pangilan, former Supply Officer of
the Department of Tourism, ARMM;[12] and Rebecca A. Agatep,[13] Telegraph
Operator, Telegraph Office, Quezon City.

Subaida K. Pangilan (Pangilan) testified that she was a retired government

employee and formerly a Human Resource Management Officer V of the ARMM
which position she held from May 1993 to 28 May 2003. As such, one of her duties
was to receive applications for clearance of Regional Secretaries of the ARMM. She
explained that an Employees Clearance was a requirement to be submitted to the
Office of the Regional Director by retiring employees, employees leaving the
country or those applying for leave in excess of thirty days. The person applying for
clearance shall get a copy of the employees clearance and shall accomplish the
same by having the different division heads sign it.

Mrs. Pangilan disclosed that she knew the accused-petitioner Norma

Pacasum to be the former Regional Secretary of the Department of Tourism (DOT),
ARMM. She narrated that in the year 2000, petitioner submitted the original of an
Employees Clearance to her office in compliance with the memorandum[14] dated 8
August 2000 issued by Governor Nur Misuari, directing all officers and employees
to clear themselves of property and money accountabilities before their salaries for
August and September 2000 would be paid. Upon inspection of the Employees
Clearance, she noticed that the signature of Laura Pangilan (Laura) contained in
said document was not hers. She said Laura Pangilan was her daughter-in-law, and
that the latters signature was very familiar to her. Mrs. Pangilan immediately
photocopied[15] the original Employees Clearance with the intention of sending the
same to her daughter-in-law for the purpose of having the latter confirm if the
signature on top of her name in the Employees Clearance was hers. There being no
messenger available, she instead called up Laura to come to her office to verify the
signature. Laura, whose office was only a walking distance away, came and
inspected the clearance, and denied signing the same. After she denied that she
signed the clearance, and while they were conversing, the bearer of the Employees
Clearance took said document and left.
Mrs. Pangilan said she did not know the name of the person who took the
original of the Employee Clearance, but said that the latter was a niece and staff
member of the petitioner. She said that all the signatures[16] appearing in the
Employees Clearance were all genuine except for Lauras signature.

The next witness for the prosecution was Laura Y. Pangilan, the person
whose signature was allegedly imitated. Laura testified that presently she was
holding the position of Human Resource Management Officer II of the Department
of Tourism - ARMM. Prior to said position, she was the Supply Officer of the DOT -
ARMM from 1994 to January 2001. As such, she issued memorandum receipts (MR)
to employees who were issued government property, and received surrendered
office properties from officers and employees of the DOT - ARMM. She said she
knew the accused, as she was their Regional Secretary of the DOT - ARMM.
 Laura recounted that on 9 August 2002, Marie Cris[17] Batuampar, an
officemate and niece of petitioner Pacasum, went to her house with the Employees
Clearance of petitioner. Batuampar requested her to sign in order to clear
petitioner of all property accountabilities. She refused to sign the clearance
because at that time, petitioner had not yet turned over all the office properties
issued to her. A few days later, she was called by her mother-in-law to go to the
latters office and inspect the Employees Clearance submitted by the representative
of petitioner. She went to her mother-in-laws office and was shown the Employees
Clearance of petitioner. Upon seeing the same, she denied the
signature[18] appearing on top of her name.Thereupon, Marie Cris Batuampar, the
representative of petitioner, took the Employees Clearance and left.
Laura revealed she executed a joint complaint-affidavit[19] dated 28 August
2001 regarding the instant case. She issued a certification[20] with a memorandum
receipt[21] dated 23 November 1999, signed[22] by petitioner. The certification
attested she did not sign petitioners Employees Clearance because all the office
properties issued to petitioner had not been turned over or returned to the Supply
Officer of the DOT - ARMM. Finally, she said that as of 2 January 2005, her last day
as Supply Officer, petitioner had not returned anything.

The last witness for the prosecution, Rebecca A. Agatep, Telegraph Operator,
Telegraph Office, Quezon City, testified that she had been a telegraph operator for
nineteen years. On 31 May 2005, she was at the Telegraph Office in Commission
on Audit, Quezon City. She received two telegrams[23] for transmissions both
dated 31 May 2005. One was addressed to petitioner and the other to Marie Cris
Batuampar. Upon receiving said documents, she transmitted the documents
through telegram.The telegram addressed to petitioner was received by her
relative, Manso Alonto, in her residence on 1 June 2005, while that addressed to
Ms. Batuampar was transmitted to, and received in, Cotabato City on 1 June
2005.[24]

On 4 July 2005, the prosecution formally offered[25] its documentary

evidence consisting of Exhibits A, A-1, A-1-a, A-2, A-2-a, A-2-b, A-2-c, A-2-d, A-2-e,
A-2-f, A-2-g, A-3, A-3-1, A-4, A-4-a, A-5, A-6, A-7, A-8, and A-9, to which the accused
filed her objections.[26] The trial court admitted all the exhibits on 10 August
2005.[27]

For the defense, petitioner and Atty. Jose I. Lorena, former ARMM Regional
Solicitor General, took the stand.

For her defense, petitioner testified that she was appointed by ARMM
Regional Governor Nur Misuari (Gov. Misuari) as Regional Secretary of the DOT of
the ARMM in 1999. She said she was familiar with the Memorandum dated 8
August 2000 issued by Gov. Misuari directing all ARMM officers and employees to
liquidate all outstanding cash advances on or before 31 August 2000 in view of the
impending expiration of the Governors extended term. At first, she said the
memorandum applied to her, she being a cabinet secretary, but later she said same
did not apply to her because she had no cash advances. Only those with cash
advances were required to get an Employees Clearance before they could receive
their salaries. She then instructed her staff to work on her salary.

Petitioner said she did not know where the original of her Employees
Clearance was. Neither did she know if the signature of Laura Pangilan therein had
been imitated or forged. She likewise said that although the Employee Clearance
was in her name, she did not cause Lauras signature to be affixed thereto.

Petitioner disclosed that she was able to get her salary for the month of
August 2000 sometime in said month, because ARMM Executive Secretary
Randolph C. Parcasio told her that she did not need a clearance before she could
get her salary because she was re-appointed.[28]

Petitioner explained that she has not seen the original of the subject
Employees Clearance.[29] When she first saw the photocopy of the Employees
Clearance, the signature of Laura was not there. She was able to see the photocopy
of the Employees Clearance again after this case had been filed with the
Sandiganbayan, already with the alleged signature of Laura. Petitioner said it was
not she who placed or caused Lauras purported signature to be affixed there.

Petitioner added that the memorandum of Gov. Misuari did not apply to her,
because she had no cash advances and she could receive her salary even without
clearance. At that time, she said the Cashier, Accountant and the Auditor checked
her records and found that she had no cash advances.[30] Because she was
elsewhere, she instructed her secretary to get her salary. However, she was
informed by her staff that her salary could not be released because the Office of
the Governor required a clearance. Her staff worked on her clearance, the purpose
of which was for the release of her salary for the months of August and September
2000. She was able to get all the needed signatures except for Lauras
signature. With the refusal of Laura to sign, her staff went to Executive Secretary
Parcasio and explained the situation.

Petitioner denied receiving a telegram from Asst. Special Prosecutor I Anna

Isabel G. Aurellano ordering her to submit to the Office of the Special Prosecutor
the original of the Employees Clearance of the DOT-ARMM issued in her name
sometime on 22-23 August 2000.
On cross-examination, petitioner said that prior to her receipt of her salary,
she believed that an Employees Clearance was necessary, and for this reason she
had this document prepared by her staff. She said her Employees Clearance was
always in the possession of Marie Cris, her assistant secretary. It was Marie Cris
who showed her the document twice.[31]

Atty. Jose I. Lorena, former ARMM Solicitor General, testified that he was
familiar with the Memorandum dated 8 August 2000 issued by Gov. Misuari
because the same was the product of consultation among him, Gov. Misuari and
ARMM Executive Secretary Parcasio. He explained that this memorandum
pertained only to outstanding cash advances. He added that an Employees
Clearance was not a requirement and was not sufficient to comply with the
directive contained in the memorandum, because what was required for the
purpose of release of salaries was a credit notice from the Resident Auditors of the
Commission on Audit.

On 16 February 2007, the defense formally offered its documentary

exhibits[32] consisting of Exhibits 1 to 5, with sub-markings. The prosecution
objected to the purpose for which Exhibit 1 was offered. The trial court admitted
all the defense exhibits.[33]

On 7 August 2007, the Sandiganbayan rendered the assailed decision

convicting petitioner of the crime charged in the information. The dispositive
portion of the decision reads:

WHEREFORE, judgment is hereby rendered finding accused

Normallah A. Pacasum GUILTY beyond reasonable doubt of the offense
charged in the Information and, with the application of the
Indeterminate Sentence Law and without any mitigating or aggravating
circumstance, hereby sentencing her to suffer the indeterminate penalty
of TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY OF prision
correccional as minimum to EIGHT (8) YEARS and ONE (1) DAY of prision
mayor as maximum with the accessories thereof and to pay a fine of
TWO THOUSAND PESOS (P2,000.00) with costs against the accused.[34]

The Sandiganbayan found the signature of DOT-ARMM Supply Officer Laura

Y. Pangilan appearing in the Employees Clearance of petitioner to have been
falsified/forged. It did not give much weight on petitioners defense denying she
was the one who actually falsified her Employees Clearance by imitating the
signature of Laura Pangilan and that she had no idea about the alleged falsification,
because it was her assistant secretary, Marie Cris Batuampar, who worked for her
clearance and the one who submitted the said clearance to the Office of the
Regional Governor of the ARMM. The trial court found said denial unsubstantiated
and ruled that while there was no direct evidence to show that petitioner herself
actually falsified/forged the signature of Laura Pangilan, there were circumstances
that indicated she was the one who committed the falsification/forgery, or who
asked somebody else to falsify/forge the subject signature in her Employees
Clearance. The Sandiganbayan added that considering it was petitioner who took
advantage of and profited from the use of the falsified clearance, the presumption
was that she was the material author of the falsification. Despite full opportunity,
she was not able to rebut said presumption, failing to show that it was another
person who falsified/forged the signature of Laura Pangilan, or that another person
had the reason or motive to commit the falsification/forgery or could have
benefited from the same.

The Sandiganbayan likewise did not sustain petitioners contention that she
did not stand to benefit from the falsification of her Employees Clearance and from
the submission thereof to the Office of the Regional Governor, because she
allegedly had no existing cash advances. She claimed that an Employees Clearance
was not needed to enable her to draw her salary for the months of August and
September 2000 under the 8 August 2000 Memorandum of Gov. Misuari, and that
the presumption that he who benefits from the falsification is presumed to be the
author thereof does not apply to her. The lower court explained that the
aforementioned memorandum applied to petitioner, she being an official of the
ARMM. It said that the applicability of said memorandum to petitioner was even
admitted by her when she, in compliance therewith, instructed her staff/assistant
secretary to work for her Employees Clearance to enable her to collect her salary
for the month of August 2000. It said that the fact that she (allegedly) had no
existing cash advances did not exempt her from the coverage of the memorandum,
because she must show she had no cash advances and the only way to do this was
by obtaining a clearance.

Petitioner argued that the photocopy of her Employees Clearance had no

probative value in proving its contents and was inadmissible because the original
thereof was not presented by the prosecution. The Sandiganbayan did not agree. It
said that the presentation and admission of secondary evidence, like a photocopy
of her Employees Clearance, was justified to prove the contents thereof, because
despite reasonable notices (telegrams) made by the prosecution to petitioner and
her assistant secretary to produce the original of her Employees Clearance, they
ignored the notice and refused to present the original of said document.

On 21 August 2007, petitioner filed a motion for reconsideration of the

decision of the Sandiganbayan[35] to which the prosecution filed a
Comment/Opposition.[36] Subsequent thereto, petitioner filed a Supplement to
Accuseds Motion for Reconsideration & Motion for New Trial/Reception of Newly
Discovered Evidence.[37] Petitioner prayed that her motion for new trial be granted
in order that the testimony of Marie Cris Batuampar be introduced, the same being
newly discovered evidence. The prosecution filed its Opposition.[38]
 On 22 October 2007, the Sandiganbayan issued its resolution denying
petitioners motion for reconsideration for lack of merit; and the motion for new
trial, because the evidence sought to be presented did not qualify as newly
discovered evidence.[39]

On 16 November 2007, the instant petition was filed.

In our Resolution[40] dated 27 November 2007, respondent People of

the Philippines, through the Office of the Special Prosecutor (OSP), was required to
file its Comment on the petition.[41] After two motions for extension to file
comment on the petition, which were granted by this Court, the OSP filed its
Comment dated 18 February 2008.[42] Petitioner was required[43] to file a Reply to
the Comment, which she did on 5 June 2008.[44]

On 5 August 2008, the Court resolved to give due course to the petition for
review on certiorari and required the parties to submit their respective
memoranda within thirty (30) days from notice. They filed their respective
memoranda on 21 November 2008 and on 5 November 2008.[45]

Petitioner assails her conviction arguing that the Sandiganbayan committed

grave abuse of discretion, amounting to lack or excess of jurisdiction, in:

I. Finding that petitioner benefited from the alleged falsification, hence

must be deemed the author thereof, when the evidence on record
does not support, but even contradicts, such a conclusion.

II. Presuming that petitioner had unliquidated cash advances hence was
required under the Misuari Memorandum to submit her
Employees Clearance to clear herself of these, when there is no
evidence to that effect and the prosecution even admitted so.

III. Not resolving doubt as to the authenticity of the photocopy of the

allegedly forged Employees Clearance, in favor of the innocence
of the Accused.

IV. In short-circuiting the right of the petitioner to present additional

evidence on her behalf, thus denying her due process.[46]
Petitioner contends that under the Misuari memorandum dated 8 August 2000,
she was not required to file an Employees Clearance to draw her salary, since what
was required under said memorandum was a Credit Notice from the COA. She
further contends that since she was not required to file said Employees Clearance
because she had no cash advances, the signature in her Employees Clearance was
irrelevant and a non-issue because what was required was a Credit Notice.

As to the first contention, we agree with petitioner that under the aforesaid
memorandum, what was required before she could draw her salaries was a Credit
Notice from the COA and not an Employees Clearance. The full text of the
Memorandum[47] form the Regional Governor reads:

MEMORANDUM FROM THE REGIONAL GOVERNOR

TO: ALL CONCERNED

SUBJECT: AS STATED
DATE: AUGUST 8, 2000

1. In view of the impending expiration of the extended term of the

undersigned, it is hereby directed that all outstanding cash
advances be liquidated on or before August 31, 2000.

2. Effective September 1, 2000, the salaries and other emoluments

of all ARMM officials/employees with unliquidated cash advance
shall be withheld until they have settled their accounts and a
corresponding Credit Notice is issued to them by the Commission
on Audit.

3. Due to budgetary and financial constraints brought about by the

drastic cut of our budget, memorandum dated December 01,
1998 is hereby reiterated. Therefore all releases for financial
assistance is hereby suspended effective immediately.

4. For strict compliance.

PROF. NUR MISUARI

It is clear from said memorandum that what was required from officers/employees
who had unliquidated cash advances was the corresponding Credit Notice issued
by the COA after they had settled their accounts. There was indeed no mention of
any Employees Clearance therein. Up to this point, we agree with
petitioner. However, on her contention that the signature of Laura Pangilan in her
Employees Clearance was irrelevant and a non-issue, we disagree. Whether the
signature of Laura Pangilan was imitated or not is the main issue in this case for
falsification.

From the memorandum of Gov. Misuari, the Credit Notice requirement was
effective only starting 1 September 2000 and not before. In the case at bar, the
information charges petitioner not with failure to secure a Credit Notice, but with
allegedly falsifying her Employees Clearance by imitating the signature of Laura Y.
Pangilan, Supply Officer I of the DOT-ARMM. The Credit Notice requirement was
therefore irrelevant and a non-issue as regards the release of salaries prior to 1
September 2000.

The questions to be answered are: (1) Was the signature of Laura Pangilan in
petitioners Employees Clearance imitated? If yes, (2) Who imitated or caused the
imitation of said signature?

On the first query, the same was answered by Laura Pangilan. She said that the
signature in petitioners Employees Clearance was not hers. The same was an
imitation. When a person whose signature was affixed to a document denies
his/her signature therein, a prima facie case for falsification is established which
the defendant must overcome.[48]

Petitioner argues there was no need for her to file an Employees Clearance to draw
her salary. She adds that Atty. Randolph C. Parcasio, Executive Secretary of the
ARMM, told her and her secretary, Marie Cris Batuampar, that she did not need an
Employees Clearance because she was re-appointed.[49]

These arguments are untenable. There was a need for petitioner to file an
Employees Clearance not only for compliance with the Misuari memorandum but,
more importantly, because her term of office was about to end, since her position
was coterminous with the term of Gov. Misuari, the appointing authority. [50] She
even admitted that before she received her salary for August, 2000,[51] an
Employees Clearance was necessary.[52] Moreover, her claim that Atty. Parcasio
told her and her secretary that she did not need an Employee Clearance to get her
salary does not persuade us. In fact, we find her alleged re-appointment, when she
was working for her Employees Clearance at around August 2000, improbable. How
could she have been re-appointed by Gov. Alvarez,[53] whom she claims re-
appointed her sometime in the year 2000, when Gov. Misuari was still the Regional
Governor of the ARMM when she had her Employees Clearance prepared
sometime in August 2000?Clearly, her statement that she did not need an
Employees Clearance because she was re-appointed does not inspire belief.

Petitioner faults the Sandiganbayan for applying the presumption that if a

person had in his position a falsified document and he made use of it (uttered it),
taking advantage of it and profiting thereby, he is presumed to be the material
author of the falsification. He argues that the Sandiganbayan overlooked the fact
that there was no evidence to prove that petitioner made use of or uttered the
Employees Clearance, because there was no evidence that she submitted it -- if not,
at least caused it to be submitted to the Office of the Regional Governor. To
support such claim, she said there were no receipt marks in the Employees
Clearance to show that the Office of the Regional Governor received said
documents.

It is to be made clear that the use of a falsified document is separate and

distinct from the falsification of a public document. The act of using falsified
documents is not necessarily included in the falsification of a public
document. Using falsified documents is punished under Article 172 of the Revised
Penal Code. In the case at bar, the falsification of the Employees Clearance was
consummated the moment the signature of Laura Pangilan was imitated. In the
falsification of a public document, it is immaterial whether or not the contents set
forth therein were false. What is important is the fact that the signature of another
was counterfeited.[54] It is a settled rule that in the falsification of public or
official documents, it is not necessary that there be present the idea of gain or
the intent to injure a third person for the reason that in the falsification of a public
document, the principal thing punished is the violation of the public faith and the
destruction of the truth as therein solemnly proclaimed.[55] Thus, the purpose for
which the falsification was made and whether the offender profited or hoped to
profit from such falsification are no longer material.

The records further show that petitioner used or uttered the Employees
Clearance. The fact that the same was circulated to the different division heads for
their signatures is already considered use of falsified documents as contemplated
in Article 172. The lack of the stamp mark Received in the Employees Clearance
does not mean that said document was not received by the Office of the Regional
Governor. We find the certification signed by Atty. Randolph C. Parcasio, Executive
Secretary of Office of the Regional Governor - ARMM, as contained in the
Employees Clearance, to be sufficient proof that the same was submitted to the
Office of the Regional Governor. It must be stressed that the Executive Secretary is
part of the Office of the Regional Governor.

Petitioner denies having actually falsified her Employees Clearance by

imitating the signature of Laura Pangilan, claiming that she had no knowledge
about the falsification because it was her assistant secretary, Marie Cris Batuampar,
who worked for her Employees Clearance.

Petitioners denial, unsubstantiated and uncorroborated, must certainly

fail. Denial, when unsubstantiated by clear and convincing evidence, is negative
and self-serving evidence, which deserves no greater evidentiary value than the
testimony of credible witnesses who testify on affirmative matters.[56] Denial is
intrinsically weak, being a negative and self-serving assertion.[57]

In the case at bar, petitioner did not even present as her witness Marie Cris
Batuampar, the person whom she instructed to work for her Employees
Clearance. Her failure to present this person in order to shed light on the matter
was fatal to her cause. In fact, we find that the defense never intended to present
Marie Cris Batuampar as a witness. This is clear from the pre-trial order, because
the defense never listed her as a witness.[58] Her attempt to present Ms. Batuampar
to help her cause after she has been convicted is already too late in the day, and
Ms. Batuampars testimony, which is supposed to be given, cannot be considered
newly discovered evidence as to merit the granting of her motion for new trial
and/or reception of newly discovered evidence.

The lack of direct evidence showing that petitioner actually imitated the
signature of Laura Pangilan in her Employees Clearance will not exonerate her. We
have ruled that it is not strange to realize that in cases of forgery, the prosecution
would not always have the means for obtaining such direct evidence to confute
acts contrived clandestinely. Courts have to rely on circumstantial evidence
consisting of pieces of facts, which if woven together would produce a single
network establishing the guilt of the accused beyond reasonable doubt.[59] We
totally agree with the Sandiganbayan, which said:

While there is no direct evidence to show that the accused herself

actually forged the signature of Laura Pangilan in the Employees
Clearance in question, the Court nevertheless finds the following
circumstances, obtaining in the records, to establish/indicate that she
was the one who committed the forgery or who asked somebody else to
forge or caused the forgery of the signature of Laura Pangilan in her
Employees Clearance, to wit

1. that the accused instructed her staff Maricris Batuampar to work for
her Employees Clearance in compliance with the Memorandum of
ARMM Regional Governor Nur Misuari and that the forged signature of
Laura Pangilan was affixed on her clearance are strong evidence that the
accused herself either falsified the said signature or caused the same to
be falsified/imitated, and that possession by Maricris of the falsified
clearance of the accused is possession by the accused herself because
the former was only acting upon the instructions and in behalf of the
latter;

2. that it was the accused who is required to accomplish and to submit

her Employees Clearance to enable her to collect her salary for the
months of August and September 2000 is sufficient and strong motive or
reason for her to commit the falsification by imitating the signature of
Laura Pangilan or order someone else to forge it; and

3. that the accused was the only one who profited or benefited from the
falsification as she admitted that she was able to collect her salary for the
month of August 2000 after her falsified Employees Clearance was
submitted and approved by the ORG-ARMM and therefore, she alone
could have the motive for making such falsification.

On the basis of the foregoing circumstances, no reasonable and fair-

minded man would say that the accused a Regional Secretary of DOT-
ARMM had no knowledge of the falsification. It is an established rule,
well-buttressed upon reason, that in the absence of a satisfactory
explanation, when a person has in his possession or control a falsified
document and who makes use of the same, the presumption or inference
is justified that such person is the forger or the one who caused the
forgery and, therefore, guilty of falsification. Thus, in People v.
Sendaydiego, the Supreme Court held that

The rule is that if a person had in his possession a falsified

document and he made use of it (uttered it), taking
advantage of it and profiting thereby, the presumption is
that he is the material author of the falsification. This is
especially true if the use or uttering of the forged
documents was so closely connected in time with the
forgery that the user or possessor may be proven to have
the capacity of committing the forgery, or to have close
connection with the forgers. (U.S. v. Castillo, 6 Phil.
453; People v. De Lara, 45 Phil. 754; People v. Domingo, 49
Phil. 28; People v. Astudillo, 60 Phil. 338; People v.
Manansala, 105 Phil. 1253).

In line with the above ruling, and considering that it was the accused who
took advantage and profited in the use of the falsified Employees
Clearance in question, the presumption is inevitable that she is the
material author of the falsification. And despite full opportunity, she was
not able to rebut such presumption by failing to show that it was another
 person who forged or falsified the signature of Laura Pangilan or that at
least another person and not she alone, had the reason or motive to
commit the forgery or falsification, or was or could have been benefited
by such falsification/forgery.[60]

The circumstances enumerated by the Sandiganbayan, as against the denials

of petitioner, convince us to apply the rule that in the absence of satisfactory
explanation, one who is found in possession of, and who has used, a forged
document, is the forger and, therefore, guilty of falsification.[61] The effect of a
presumption upon the burden of proof is to create the need of presenting evidence
to overcome the prima facie case created, which, if no contrary proof is offered,
will thereby prevail.[62]A prima facie case of falsification having been established,
petitioner should have presented clear and convincing evidence to overcome such
burden. This, she failed to do.

Petitioner assails the weight given by the Sandiganbayan to the testimonies

of the two Pangilans when they failed to report the alleged falsification to the police
or alert the Office of the Regional Governor of said falsification, or tried to stop
petitioner from getting her salaries.

We do not agree with the petitioner. It is a settled rule that the findings of fact of
the trial court, its calibration of the testimonies of the witnesses and its assessment
of the probative weight thereof, as well as its conclusions anchored on said
findings, are accorded high respect if not conclusive effect.[63] The determination of
the credibility of witnesses is the domain of the trial court, as it is in the best
position to observe the witnesses demeanor.[64] The Sandiganbayan has given full
probative value to the testimonies of the prosecution witnesses. So have we. We
find no reason to depart from such a rule.

Aware that the prosecution failed to present the original from which the photocopy
of petitioners Employees Clearance was supposed to have been obtained, she
maintains that the Sandiganbayan should have doubted the authenticity and
probative value of the photocopy of the Employees Clearance.

The Sandiganbayan correctly admitted in evidence the photocopy of the Employees

Clearance. We agree when it ruled:

Section 3, Rule 130 of the Rules of Court provides that when the
subject of inquiry is the contents of a document, no evidence shall be
admissible other than the original document itself. The purpose of the
rule requiring the production by the offeror of the best evidence if the
prevention of fraud, because if a party is in possession of such evidence
and withholds it and presents inferior or secondary evidence in its place,
the presumption is that the latter evidence is withheld from the court
and the adverse party for a fraudulent or devious purpose which its
production would expose and defeat. Hence, as long as the original
evidence can be had, the Court should not receive in evidence that which
is substitutionary in nature, such as photocopies, in the absence of any
clear showing that the original has been lost or destroyed or cannot be
produced in court. Such photocopies must be disregarded, being
inadmissible evidence and barren of probative weight.

The foregoing rule, however, admits of several exceptions. Under

Section 3(b) of Rule 130, secondary evidence of a writing may be
admitted when the original is in the custody or under the control of the
party against whom the evidence is offered, and the latter fails to produce
it after reasonable notice. And to warrant the admissibility of secondary
evidence when the original of a writing is in the custody or control of the
adverse party, Section 6 of Rule 130 provides as follows:

Sec. 6. When original document is in adverse partys

custody or control. If the document is in the custody or
control of the adverse party, he must have reasonable
notice to produce it. If after such notice and after
satisfactory proof of its existence, he fails to produce the
document, secondary evidence may be presented as in the
case of loss.

Thus, the mere fact that the original is in the custody or control of
the adverse party against whom it is offered does not warrant the
admission of secondary evidence. The offeror must prove that he has
done all in his power to secure the best evidence by giving notice to the
said party to produce the document which may be in the form of a
motion for the production of the original or made in open court in the
presence of the adverse party or via a subpoena duces tecum, provided
that the party in custody of the original has sufficient time to produce
the same. When such party has the original of the writing and does not
voluntarily offer to produce it, or refuses to produce it, secondary
evidence may be admitted.

Here, the accused admitted that her Employees Clearance was

always in the possession of her assistant secretary, [Marie Cris]
Batuampar. So the prosecution in its effort to produce the original copy
of the said Employees Clearance of the accused, thru Assistant Special
Prosecutor Anna Isabel G. Aurellano of the Office of the Prosecutor, sent
on May 31, 2005 thru the COA Telegraph Office at Quezon City two (2)
 telegram subpoenas addressed to accused Normallah Pacasum, and
[Marie Cris] Batuampar ordering them to submit to the Office of the
Special Prosecutor on or before June 8, 2005, the original of the
Employees Clearance in the name of Normallah Alonto Lucman-Pacasum
for the release of her August and September 2000 salary as DOT Regional
Secretary. Notwithstanding receipt of the said telegram subpoena by her
uncle Manso Alonto in her residence on June 1, 200[5], the accused did
not appear before or submit to Assistant Special Prosecutor Anna Isabel
G. Aurellano, the original of the said Employees Clearance, much less
offered to produce the same.

Under the circumstances, since there was proof of the existence

of the Employees Clearance as evidenced by the photocopy thereof, and
despite the reasonable notices made by the prosecution to the accused
and her assistant secretary to produce the original of said employees
clearance they ignored the notice and refused to produce the original
document, the presentation and admission of the photocopy of the
original copy of the questioned Employees Clearance as secondary
evidence to prove the contents thereof was justified.[65]

This Court decrees that even though the original of an alleged falsified document is
not, or may no longer be produced in court, a criminal case for falsification may still
prosper if the person wishing to establish the contents of said
document viasecondary evidence or substitutionary evidence can adequately show
that the best or primary evidence the original of the document is not available for
any of the causes mentioned in Section 3,[66] Rule 130 of the Revised Rules of Court.

Petitioner claims she was denied due process when the Sandiganbayan severely
restricted her time to present evidence, allowing her only two hearing dates, thus
resulting in her failure to present another important witness in the of person of
Atty. Randolph Parcasio. Petitioner was not denied due process. She was given
every opportunity to adduce her evidence. The Sandiganbayan outlined the
proceedings of the case as follows:

After the prosecution rested its case, by agreement of the parties,

the initial hearing for the reception of defense evidence was scheduled
on September 19 and 20, 2005 both at 8:30 in the morning. However,
upon motion of the prosecution, the Court, in its Order of September 16,
2005, cancelled the setting as the handling prosecutor, Pros. Anna Isabel
G. Aurellano, had to attend a 5-day workshop at PHINMA in Tagaytay City
on September 19-23, 2005 and scheduled anew the hearing on
November 23 and 24, 2005, both at 8:30 in the morning. However, for
failure of the defense counsel, Atty. Rico B. Bolongaita, to appear at the
November 23, 2005 hearing despite due notice, the Court cancelled the
November 23 and 24 hearings, and moved the same to March 13 and 14,
2006 both at 8:30 in the morning, and at the same time directed the said
defense counsel to show cause in writing within five (5) days from receipt
of the Order why he should not be held in contempt for his failure to
appear despite due notice. In compliance with this Order, Atty. Rico B.
Bolongaita, filed his Explanation and Withdrawal of Appearance,
respectively, which were both Noted by the Court in its Resolution
of January 19, 2006.

In view of the absence of the accused in the March 13, 2006 hearing and
her continued failure to get a substitute counsel considering that her
counsel, Atty. Rico B. Bolongaita, had already withdrawn from the case
since January 16, 2006, the Court cancelled the March 13 and 14, 2006
hearings and moved the same to July 3 and 4, 2006 both at 8:30 in the
morning and designated Atty. Conrado Rosario of the PAO as counsel de
oficio of the accused and directed the accused upon receipt of the order
to immediately confer with said counsel for purposes of preparing for her
defense in the case.

On March 20, 2006, the Court issued the following Resolution, which
reads:

Accused Normallah L. Pacasums letter of February 17, 2006 (received by

mail on March 16, 2006) requesting extension of time to engage the
services of counsel is merely NOTED WITHOUT ACTION as the next
hearings are scheduled on July 3 and 4, 2006 and said accused would have
more than ample time to engage the services of counsel of her choice. For
this reason, any excuse from the accused on said settings that she failed
to engage the services of counsel or that her counsel needs more time to
prepare will be unacceptable. At all events, this Court, in its Order
of March 13, 2006, had already appointed Atty. Conrado Rosario of the
PAO as a counsel de oficio to represent the accused, with specific orders
to the latter to confer with Atty. Rosario and assist him in preparing for
her defense.

On July 3, 2006, upon the manifestation of Atty. Conrado Rosario,

counsel for the accused, that since he was appointed counsel de oficio,
the accused has not communicated with him and therefore he was not
ready to present any evidence for the accused, the Court cancelled the
hearing in order to give the defense another opportunity to present its
evidence and reset it to July 4, 2006, the following day as previously
scheduled.
On July 4, 2006, the Court issued the following Order, which reads

When this case was called for hearing, accused asked for
the resetting of the case on the ground that she just hired a
new counsel who thereafter arrived and entered his
appearance as Atty. Napoleon Uy Galit with address at Suite
202 Masonic Building, #35 Matalino St., Diliman, Quezon
City. With the appearance of her new counsel, Atty.
Conrado C. Rosario is hereby discharged as counsel de oficio
of the accused.

As prayed for by the accused, she is given the last chance to

present her evidence on October 9 and 10, 2006, both
at 8:30 oclock in the morning. For repeated failure of the
accused to acknowledge receipt of the notices of the Court,
her waiver of appearance is hereby cancelled and she is
ordered to personally appear in the scheduled hearings of
this case.

SO ORDERED.

On October 6, 2006, the accused thru counsel, Atty. Bantreas Lucman,

filed an Entry of Appearance, Motion For Postponement of October 9 and
10 Hearings stating therein that since his service as new counsel was just
engaged by the accused, and that the accused herself cannot also attend
the said hearing because she is undergoing fasting until October 24, 2006
in observance of Ramadan, he asked to postpone the settings on October
9 and 10, 2006. At the hearing on October 9, 2006, the Court issued the
following, which reads

Acting on the Entry of Appearance, Motion for

Postponement of October 9 and 10, 2006 Hearing filed by
accused Normallah L. Pacasum, thru counsel, Atty. Bantreas
Lucman, finding the same to be without merit, as this case
has been set for hearing several times and the accused has
been given the last chance to present evidence, the Court
hereby denies the motion for postponement.

In this regard, in view of the absence of accused Normallah

L. Pacasum in todays hearing despite the Order of the Court
dated July 4, 2006, canceling her waiver of appearance, and
ordering her to personally appear before this Court, as
prayed for by the prosecution, let a Bench Warrant of Arrest
 be issued against the said accused. The cash bond posted
for her provisional liberty is ordered confiscated in favor of
the government. The accused is given thirty (30) days from
notice to explain in writing why final judgment shall not be
rendered against the said bond.

With the Manifestation of Atty. Bantreas Lucman that

the defense is not ready to present its evidence today and
tomorrow, the last chance for it to present its evidence, the
Court is constraint to consider the accuseds right to present
evidence as waived.

The parties are hereby given thirty (30) days to submit their
respective memoranda. Thereafter, the case shall be
deemed submitted for decision.

SO ORDERED.

Subsequently, the accused thru counsel, filed a Motion for

Reconsideration of the above Order dated October 25, 2006, and Motion
to Set Hearing For Motion for Reconsideration and to Lift Warrant of
Arrest dated October 31, 2006.

At the hearing of accuseds motion for reconsideration on November 3,

2006, the Court issued the following Order, which reads

When the Motion To Set Hearing for Motion for

Reconsideration and to Lift Warrant of Arrest was called for
hearing this morning, only Attorneys Bantuas M. Lucman
and Jose Ventura Aspiras appeared. Accused Normallah L.
Pacasum was absent.

In view of the absence of the accused, the Court is not

inclined to give favorable action to the Motion for
Reconsideration. It must be stressed that the primordial
reason for the issuance of the order sought to be
reconsidered in the presence of the accused in the previous
hearing in violation of the Courts Order for her to personally
appear in the hearings of this case and for her indifference
to the directives of the Court. With the absence anew of the
accused, the Court has no alternative but to deny the
Motion.
 Moreover, the Court notes the allegation in the Motion that
the counsel sought the assurance of the accused (and she
promised) to appear before this Court if the motion will be
granted, as if the Court owes the accused the favor to
appear before it. The accused is reminded/advised that the
issuance of the warrant of arrest, she has to voluntarily
surrender and appear before the Court or be arrested and
brought to the Court.

WHEREFORE, the Motion for Reconsideration is denied.

SO ORDERED.

Acting on the Omnibus Motion to Hold in Abeyance Consideration

of Prosecutions Memorandum (And for a Second Look on the Matter of
Accuseds Right to Present Defense Evidence) of the accused
dated November 21, 2006, and the prosecutions Opposition thereto, the
Court issued the following Order, which reads

This refers to the Accused Omnibus Motion to Hold in Abeyance

Consideration of Prosecutions November 7, 2006 Memorandum (And For
a Second Look on the Matter of Accuseds Right to Present Defense
Evidence) dated November 21, 2006 and the plaintiffs Opposition
thereto dated November 28, 2006.
Inasmuch as the accused has already appeared before the Court and
posted an additional bond of P10,000.00 despite the aforesaid
opposition of the prosecution, in the interest of justice, the Court is
inclined to reconsider and give favorable action to the motion and grant
the accused another and last opportunity to present here evidence.
WHEREFORE, the motion is granted and this case is set for hearing
for the accuseds last chance to present and/or complete the presentation
of her evidence on February 5 and 6, 2007 both at 8:30 in the morning in
the Sandiganbayan Centennial Building in Quezon City.

SO ORDERED.

Thus, despite the initial indifference of the accused to present her

defense, the Court gave her ample opportunity to present her
evidence.[67]
 The Sandiganbayan properly dealt with the situation. In fact, we find that the
trial court was lenient with the petitioner. The failure of the defense to present
Atty. Parcasio was its own doing. The defense failed to prepare its witnesses for the
case.As proof of this, we quote a portion of the hearing when petitioner was
testifying:

ATTY. ASPIRAS
Q Would you know where (sic) the whereabouts of this Sec. Parcasio
would be (sic) at this time?

A He lives in Davao but after what happened to Gov. Misuari, we have

not got together with the other members of the cabinet of Gov.
Misuari, but he lives in Davao, sir.

Q Would it be possible, Madame Witness, to request or ask him to testify

in this case?

A After this hearing, I will look for Sec. Parcasio just to clear my name, sir.

CHAIRMAN

Not after this hearing, you should have already done that. Because we
already gave you enough opportunity to present your side,
right? You should not be telling the Court that only after this
hearing, you will start looking (for) people who will, definitely,
clear your name. You should be doing that months ago, correct?
WITNESS

Yes, your Honors.[68]

Petitioner was charged with falsifying her Employees Clearance under Article 171,
paragraph 1 of the Revised Penal Code. For one to be convicted of falsification
under said paragraph, the followings elements must concur: (1) that the offender
is a public officer, an employee, or a notary public; (2) that he takes advantage of
his official position; and (3) that he falsifies a document by counterfeiting or
imitating any handwriting, signature or rubric.
All the foregoing elements have been sufficiently established. There is no dispute
that petitioner was a public officer, being then the Regional Secretary of the
Department of Tourism of the ARMM, when she caused the preparation of her
Employees Clearance (a public document) for the release of her salary for the
months of August and September 2000. Such being a requirement, and she being
a public officer, she was duty-bound to prepare, accomplish and submit said
document. Were it not for her position and employment in the ARMM, she could
not have accomplished said Employees Clearance. In a falsification of public
document, the offender is considered to have taken advantage of his official
position when (1) he had the duty to make or prepare or otherwise intervene in the
preparation of the document; or (2) he had official custody of the document which
he falsified.[69] It being her duty to prepare and submit said document, she clearly
took advantage of her position when she falsified or caused the falsification of her
Employees Clearance by imitating the signature of Laura Pangilan.

Going now to the penalties imposed on petitioner, we find the same proper. The
penalty for falsification under Article 171 of the Revised Penal Code is prision
mayor and a fine not exceeding P5,000.00. There being no mitigating or
aggravating circumstance in the commission of the felony, the imposable penalty
is prision mayor in its medium period, or within the range of eight (8) years and one
(1) day to ten (10) years. Applying the Indeterminate Sentence Law, the maximum
penalty to be imposed shall be taken from the medium period of prision mayor,
while the minimum shall be taken from within the range of the penalty next lower
in degree, which is prision correccional or from six (6) months and one (1) day to six
(6) years.

WHEREFORE, premises considered, the decision of the Sandiganbayan in Crim.

Case No. 27483 dated 7 August 2007 and its resolution dated 22 October 2007 are
hereby AFFIRMED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 201001 November 10, 2014

MCMP CONSTRUCTION CORP., Petitioner,

vs.
MONARK EQUIPMENT CORP., Respondent.

RESOLUTION

VELASCO, JR., J.:

For consideration of the Court is a Petition for Review on Certiorari dated April 20, 20li filed by
MCMP Construction Corp. under Rule 45 of the Rules of Court. The petition seeks the reversal of
the Decision dated October 14, 20112and Resolution dated March 9, 20123 issued by the Court of
Appeals (CA) in CA G.R. CV No. 91860 entitled Monark Equipment Corporation v. MCMP
Construction Corporation. The CA Decision affirmed the Decision dated November 20, 20074 and
Order dated April 28, 20085 issued by the Regional Trial Court, Branch 96 in Quezon City (RTC) in
Civil Case No. Q-02-4 7092 entitled Monark Equipment Corporation v. MCMP Construction
Corporation.

The facts of the case are as follows:

MCMP Construction Corporation (MCMP) leased heavy equipment from Monark Equipment
Corporation (Monark) for various periods in 2000, the lease covered by a Rental Equipment Contract
(Contract). Thus, Monark delivered five (5) pieces of heavy equipment to the project site of MCMP in
Tanay, Rizal and Llavac, Quezon, the delivery evidenced by invoices as well as Documents
Acknowledgment Receipt Nos. 04667 and 5706, received and signed by representatives of MCMP,
namely, Jorge Samonte on December 5, 2000 and Rose Takahashi on January 29, 2001,
respectively. Notably, the invoices state:

"Credit sales are payable within 30 days from the date of invoice. Customer agrees to pay interest at
24% p.a. on all amounts. In addition, customer agrees to pay a collection fee of 1% compounded
monthly and 2% per month penalty charge for late payment on amounts overdue. Customer agrees
to pay a sum equal to 25% of any amount due as attorney’s fees in case of suit, and expressly
submit to the jurisdiction of the courts of Quezon City, Makati, Pasig or Manila, Metro Manila, for any
legal action arising from, this transactions."

Despite the lapse of the thirty (30)-day period indicated in the invoices, MCMP failed to pay the
rental fees. Upon demands made upon MCMP to pay the amount due, partial payments were made
in the amount of Ph₱100,000.00 on April 15, 2001 and Ph₱100,000.00 on August 15, 2001. Further
demands went unheeded. As of April 30, 2002, MCMP owed Monark the amount of
Ph₱1,282,481.83, broken down as follows:

Principal Accumulated PhP 765,380.33

Interest (2%) 253,226.17
2% Monthly Penalty Charge 253,226.17
Collection Fee (1%) 10,649.16
===============
Ph₱1,282,481.836

Thus, on June 18, 2002, Monark filed a suit for a Sum of Money with the RTC docketed as Civil
Case No. Q-02-47092.7 In its Answer filed on July 5, 2002,8 MCMP alleged in defense thatthe
complaint was premature as Monark has refused to give a detailed breakdown of its claims. MCMP
further averred that it had an agreement with Monark that it would not be charged for the whole time
that the leased equipment was in its possession but rather only for the actual time that the
equipment was used although still on the project site. MCMP, however, admitted that this agreement
was not contained in the Contract.

During trial, Monark presented asone of its witnesses, Reynaldo Peregrino (Peregrino), its Senior
Account Manager. Peregrino testified that there were two (2) original copies ofthe Contract, one
retained by Monark, while the other was given to MCMP. He further testified that Monark’s copy had
been lost and that diligent efforts to recover the copy proved futile. Instead, Peregrino presented a
photocopy of the Contract which he personally had on file. MCMP objected to the presentation of
secondary evidence to prove the contents of the Contract arguing that there were no diligent efforts
to search for the original copy. Notably, MCMP did not present its copy of the Contract
notwithstanding the directive of the trial court to produce the same.9

On November 20, 2007, the RTC issued its Decision finding for Monark as plaintiff, the dispositive
portion of which reads:

"WHEREFORE, in view of the foregoing findings and legal premises, judgment is hereby rendered in
favor of the plaintiff, and ordering the defendant to pay the former:

1. PhP 1,282,481.83 as balance for the rental fees of the subject heavy equipments (sic) as
of April 30, 2002, inclusive of the interests thereof;

2. Twenty-Five percent (25%) of the total amount to be recovered as payment for the
attorney’s fees; and,

3. The costs of suit.

SO ORDERED."
From this Decision of the RTC, MCMP filed a Motion for Reconsideration dated January 31, 2008
while Monark interposed a Motion for Clarification and/or Partial Reconsideration.10 On April 28,
2008, the RTC issued an Order, disposing as follows:

"WHEREFORE, in light of the foregoing, the Court finds no reversible error in the assailed decision
henceforth, the Motion for Reconsideration of defendant is hereby DENIED for lack of merit. On the
other hand, the plaintiff’s Motion for Clarification and/or Partial Reconsideration is hereby GRANTED
for being meritorious. Therefore, in the dispositive portion of the assailed decision dated 20
November 2007, the following should be included:

‘The payment of interests, charges and fees due after April 30, 2002 and up to the time when all the
obligations of the defendant to the plaintiff shall have been fully paid, computed in accordance with
the stipulations entered into between the parties under Exhibits "A" to "G", and uniformly stated in
the following wise:

Credit sales are payable within 30 days from the date of invoice. Customer agreesto pay interest at
24% p.a. on all amounts. In addition, customer agrees to pay a collection fee of 1% compounded
monthly and 2% per month penalty charge for late payment on amounts overdue. Customer agrees
to pay a sum equal to 25% of any amount due as attorney’s fees in case of suit, and expressly
submit to the jurisdiction of the courts of Quezon City, Makati, Pasig or Manila, Metro Manila, for any
legal action arising from, this transactions.’

SO ORDERED."

Unsatisfied, MCMP appealed the RTC’s Decision and Order to the Court of Appeals (CA).
Eventually, the appellate court, by a Decision dated October 14, 2011, affirmed in totothe Decision
and Order of the RTC. MCMP’s motion for reconsideration of the CA Decision was denied by the CA
in its Resolution dated March 9, 2012.

Hence, the instant petition.

MCMP challenges the ruling of the CA arguing that the appellate court should have disallowed the
presentation of secondary evidence to prove the existence of the Contract, following the Best
Evidence Rule. MCMP specifically argues that based on the testimony of Peregrino, Monark did not
diligently search for the original copy of the Contract as evidenced by the fact that: 1) the actual
custodian of the document was not presented; 2) the alleged loss was not even reported to
management or the police; and 3) Monark only searched for the original copy of the document for
the purposes of the instant case.

Petitioner’s contention is erroneous.

The Best Evidence Rule, a basic postulate requiring the production of the original document
whenever its contents are the subject of inquiry, is contained in Section 3 of Rule 130 ofthe Rules of
Court which provides:

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

(a) When the original has been lost or destroyed, or cannot be produced in court, without bad
faith on the part of the offeror;

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

(c) When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from them
is only the general result of the whole; and

(d) When the original is a public record in the custody of a public officer or is recorded in a
public office. (Emphasis supplied)"

Relative thereto, Sections 5 and 6 of Rule 130 provide the relevant rules on the presentation of
secondary evidence to prove the contents of a lost document:

"Section 5. When original document is unavailable. — When the original document has been lost
ordestroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and
the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a
recital of its contents in some authentic document, or by the testimony of witnesses in the order
stated. (4a)

Section 6. When original document is in adverse party's custody or control. — If the document is
inthe custody or under the control of adverse party, he must have reasonable notice to produce it. If
after such notice and after satisfactory proof of its existence, he fails to produce the document,
secondary evidence may be presented as in the case of its loss."

In Country Bankers Insurance Corporation v. Lagman,11 the Court set down the requirements before
a party may present secondary evidence to prove the contents of the original document whenever
the original copy has been lost:

Before a party is allowed to adduce secondary evidence to prove the contents of the original, the
offeror must prove the following: (1) the existence or due execution of the original; (2) the loss and
destruction of the original or the reason for its non-production in court; and (3) on the part of the
offeror, the absence of bad faith to which the unavailability of the original can be attributed. The
correct order of proof is as follows: existence, execution, loss, and contents.

In the instant case, the CA correctlyruled that the above requisites are present. Both the CA and the
RTC gave credence to the testimony of Peregrino that the original Contract in the possession of
Monark has been lost and that diligent efforts were exerted to find the same but to no avail. Such
testimony has remained uncontroverted. As has been repeatedly held by this Court, "findings offacts
and assessment ofcredibility of witnesses are matters best left to the trial court."12 Hence, the Court
will respect the evaluation of the trial court on the credibility of Peregrino.

MCMP, to note, contends that the Contract presented by Monark is not the contract that they
entered into. Yet, it has failed to present a copy of the Contract even despite the request ofthe trial
court for it to produce its copy of the Contract.13 Normal business practice dictates that MCMP should
have asked for and retained a copy of their agreement. Thus, MCMP’s failure to present the same
and even explain its failure, not only justifies the presentation by Monark of secondary evidence in
accordance with Section 6 of Rule 130 of the Rules of Court, butit also gives rise to the disputable
presumption adverse to MCMP under Section 3 (e) of Rule 131 of the Rules of Court that "evidence
willfully suppressed would be adverse if produced."

Next, MCMP claims that the piecesof equipment were not actually delivered to it by Monark. It bears
pointing out, however, that the witnesses of MCMP itself, Jorge Samonte, a Budget Supervisor of
MCMP, and Engr. Horacio A. Martinez, Sr., General Manager of MCMP, both acknowledged the
delivery of the equipment to the project sites.14Clearly, the contention of MCMP is false.

Evidently, the instant petition must be dismissed.

Nevertheless, the Court takes notice that the trial court imposed upon MCMP a 24% per annum
interest on the rental fees as well as a collection fee of 1% per month compounded monthly and a
2% per month penalty charge. In all then, the effective interest rate foisted upon MCMP is 60% per
annum. On top of this, MCMP was assessedfor attorney’s fees at the rate of 25% of the total amount
due. These are exorbitant and unconscionable rates and, following jurisprudence, must be equitably
reduced.

In Macalinao v. Bank of the Philippine Islands,15 the Court reduced the interest imposed by the bank
of 36% for being excessive and unconscionable:

"x x x Nevertheless, it should be noted that this is not the first time that this Court has considered the
interest rate of 36% per annum as excessive and unconscionable. We held in Chua vs. Timan:

The stipulated interest rates of 7% and 5% per month imposed on respondents’ loans mustbe
equitably reduced to 1% per month or 12% per annum. We need not unsettle the principle we had
affirmed in a plethora of cases that stipulated interest rates of 3% per month and higher are
excessive, iniquitous, unconscionable and exorbitant. Such stipulations are void for being contrary to
morals, if not against the law. While C.B. Circular No. 905-82, which took effect on January 1, 1983,
effectively removed the ceiling on interest rates for both secured and unsecured loans, regardless of
maturity, nothing in the said circular could possibly be read as granting carte blanche authority to
lenders to raise interest rates to levels which would either enslave their borrowers or lead to a
hemorrhaging of their assets. (Emphasis supplied.)

Since the stipulation on the interest rate is void, it is as if there was no express contract thereon.
Hence, courts may reduce the interest rate as reason and equity demand.

The same is true with respect tothe penalty charge. Notably, under the Terms and Conditions
Governing the Issuance and Use of the BPI Credit Card, it was also stated therein that respondent
BPI shall impose an additional penalty charge of 3% per month. Pertinently, Article 1229 of the Civil
Code states:

Art. 1229. The judge shall equitably reduce the penalty when the principal obligation has been partly
or irregularly complied with by the debtor. Even if there has been no performance, the penalty may
also be reduced by the courts if it is iniquitous or unconscionable. In exercising this power to
determine what is iniquitous and unconscionable, courts must consider the circumstances of each
case since what may be iniquitous and unconscionable in one may be totally just and equitable in
another."

In the more recent case of Pentacapital Investment Corporation v. Mahinay,16 the Court reduced the
interest and penalties imposed in a contract as follows:

"Aside from the payment of the principal obligation of ₱1,936,800.00, the parties agreed that
respondent pay interest at the rate of 25% from February 17, 1997 until fully paid. Such rate,
however, is excessive and thus, void. Since the stipulation on the interest rate is void, it is as if there
was no express contract thereon. To be sure, courts may reduce the interest rate as reason and
equity demand. In this case, 12% interest is reasonable.

The promissory notes likewise required the payment of a penalty charge of 3% per month or 36%
per annum. We find such rates unconscionable. This Court has recognized a penalty clause as an
accessory obligation which the parties attach to a principal obligation for the purpose of ensuring the
performance thereof by imposing on the debtor a special prestation (generallyconsisting of the
payment of a sum of money) in case the obligation is not fulfilled or is irregularly or inadequately
fulfilled. However, a penalty charge of 3% per month is unconscionable; hence, we reduce it to1%
per month or 12% per annum, pursuant to Article 1229 of the Civil Code which states:

Art. 1229. The judge shall equitably reduce the penalty when the principal obligation has been partly
or irregularly complied with by the debtor. Even if there has been no performance, the penalty may
also be reduced by the courts if it is iniquitous or unconscionable.

Lastly, respondent promised to pay 25% of his outstanding obligations as attorney’s fees in case of
non-payment thereof. Attorney’s fees here are in the nature of liquidated damages. As long as said
stipulation does not contravene law, morals, or public order, it is strictly binding upon respondent.
Nonetheless, courts are empowered to reduce such rate if the same is iniquitous or unconscionable
pursuant to the above-quoted provision. This sentiment is echoed inArticle 2227 of the Civil Code, to
wit:

Art. 2227. Liquidated damages, whether intended as an indemnity or a penalty, shall be equitably
reduced if they are iniquitous or unconscionable.

Hence, we reduce the stipulated attorney's fees from 25% to 10%."

Following the above principles previously laid down by the Court, the interest and penalty charges
imposed upon MCMP must also be considered as iniquitous, unconscionable and, therefore, void.
As such, the rates may validly be reduced. Thus, the interest rate of 24% per annum is hereby
reduced to 12% per annum. Moreover, the interest shall start to accrue thirty (30) days after receipt
of the second set of invoices on January 21, 2001, or March 1, 2001 in accordance with the
provisions in the invoices themselves.

Additionally, the penalty and collection charge of 3% per month, or 36% per annum, is also reduced
to 6% per annum. And the amount of attorney's fees is reduced from 25% of the total amount due to
1âwphi 1

5%.

WHEREFORE, premises considered, the instant petition is hereby DENIED for lack of merit with the
MODIFICATION that the dispositive portion of the RTC's Decision dated November 20, 2007, as
amended in an Order dated April 28, 2008, should read:

WHEREFORE, in view of the foregoing findings and legal premises, judgment is hereby rendered in
favor of the plaintiff, and ordering the defendant to pay the former:

1. PhP 765,380.33 representing the unpaid rental fees;

2. Interest of 12% per annum on the unpaid rental fees to be computed from March 1,
200117 until payment;

3. Penalty and collection charge of 6% per annum on the unpaid rental fees to be computed
from March 1, 2001;
 4. Attorney's Fees of five percent (5%) of the total amount to be recovered; and,

5. The costs of suit.

SO ORDERED.

SECOND DIVISION

G.R. No. 174673, January 11, 2016

REPUBLIC OF THE PHILIPPINES, Petitioner, v. FE ROA GIMENEZ AND IGNACIO B.

GIMENEZ, Respondents.

DECISION

LEONEN, J.:

Rules of procedure are not ends in themselves. The object of these rules is to assist and facilitate a trial
court's function to be able to receive all the evidence of the parties, and evaluate their admissibility and
probative value in the context of the issues presented by the parties' pleadings in order to arrive at a
conclusion as to the facts that transpired. Having been able to establish the facts, the trial court will then be
able to apply the law and determine whether a complainant is deserving of the reliefs prayed for in the
pleading.

Dismissal on the basis of a very strict interpretation of procedural rules without a clear demonstration of the
injury to a substantive right of the defendant weighed against 19 years of litigation actively participated in
by both parties should not be encouraged.

There is likewise serious reversible error, even grave abuse of discretion, when the Sandiganbayan
dismisses a case on demurrer to evidence without a full statement of its evaluation of the evidence
presented and offered and the interpretation of the relevant law. After all, dismissal on the basis of
demurrer to evidence is similar to a judgment. It is a final order ruling on the merits of a case.

This is a Petition1 for Review on Certiorari assailing the Sandiganbayan Resolutions dated May 25, 20062and
September 13, 2006.3 The Sandiganbayan deemed petitioner Republic of the Philippines (Republic) to have
waived the filing of its Formal Offer of Evidence4 and granted the Motion to Dismiss of respondents Spouses
Ignacio Gimenez and Fe Roa Gimenez (Gimenez Spouses) based on demurrer to evidence.5 chanroblesv irt uallawl ibra ry

The Republic, through the Presidential Commission on Good Government (PCGG), instituted a Complaint6for
Reconveyance, Reversion, Accounting, Restitution and Damages against the Gimenez Spouses before the
Sandiganbayan.7 "The Complaint seeks to recover . . . ill-gotten wealth . . . acquired by [the Gimenez
Spouses] as dummies, agents[,] or nominees of former President Ferdinand E. Marcos and Imelda
Marcos[.]"8chanroblesv irt uallawl ibra ry

During trial, the Republic presented documentary evidence attesting to the positions held, business
interests, income, and pertinent transactions of the Gimenez Spouses.9 The Republic presented the
testimonies of Atty. Tereso Javier, Head of the Sequestered Assets Department of PCGG, and of Danilo R.V.
Daniel, Director of the Research and Development Department of PCGG.10 Witnesses testified on the bank
accounts and businesses owned or controlled by the Gimenez Spouses.11 chanrob lesvi rtua llawlib ra ry

On February 27, 2006, the Sandiganbayan denied a motion to recall Danilo R.V. Daniel's testimony.12 The
Republic then manifested that it was "no longer presenting further evidence."13 Accordingly, the
Sandiganbayan gave the Republic 30 days or until March 29, 2006 "to file its formal offer of evidence."14 chan roble svirtuallaw lib rary

On March 29, 2006, the Republic moved "for an extension of thirty (30) days or until April 28, 2006, within
which to file [its] formal offer of evidence."15 This Motion was granted by the Sandiganbayan in a Resolution
of the same date.16 chanroblesvi rt uallawl ibra ry

On April 27, 2006, the Republic moved for an additional 15 days or until May 13, 2006 within which to file its
Formal Offer of Evidence.17 This Motion was granted by the Sandiganbayan in a Resolution dated May 8,
2006.18 Following this, no additional Motion for extension was filed by the Republic.

In the first assailed Resolution dated May 25, 2006, the Sandiganbayan noted that the Republic failed to
file its Formal Offer of Evidence notwithstanding repeated extensions and the lapse of 75 days from the date
it terminated its presentation of evidence.19 Thus, it declared that the Republic waived the filing of its Formal
Offer of Evidence.20 chan roblesv irtuallawl ib rary

The first assailed Resolution provides:

It appearing that the plaintiff has long terminated the presentation of its evidence on February 27, 2006,
and it appearing further that it failed or otherwise neglected to file its written formal offer of evidence for an
unreasonable period of time consisting of 75 days (i.e., 30 days original period plus two extension periods
totaling 45 days), the filing of said written formal offer of evidence is hereby deemed WAIVED.

WHEREFORE, the reception of the defendants' evidence shall proceed on June 22 and 23, 2006, both at 8:30
o'clock [sic] in the morning as previously scheduled.21 c hanro bleslaw

Ignacio Gimenez filed a Motion to Dismiss on Demurrer to Evidence dated May 30, 2006.22 He argued that
the Republic showed no right to relief as there was no evidence to support its cause of action.23 Fe Roa
Gimenez filed a Motion to Dismiss dated June 13, 2006 on the ground of failure to prosecute.24 Through her
own Motion to Dismiss, she joined Ignacio Gimenez's demurrer to evidence.25 cralaw red

Two days after Fe Roa Gimenez's filing of the Motion to Dismiss or on June 15, 2006, the Republic filed a
Motion for Reconsideration [of the first assailed Resolution] and to Admit Attached Formal Offer of
Evidence.26 The pertinent portions of the Republic's offer of documentary exhibits attached to the Motion are
summarized as follows:

Exhibits A to G and series consist of the Income Tax Returns, Certificate of Income Tax Withheld On
Compensation, Statement of Tax Withheld At Source, Schedule of Interest Income, Royalties and
Withholding Tax, Statement of Assets, Liabilities & Net Worth of Ignacio B. Gimenez from 1980-1986
proving his legitimate income during said period. Exhibits H -J and series refer to the Deeds of Sale and
Transfer Certificates of Title proving that spouses Gimenezes acquired several real properties.

Exhibits K and series (K-1-K-4) pertain to Checking Statements Summary issued by the Bankers Trust
Company (BTC) proving that Fe Roa Gimenez maintained a current account under Account Number 34-714-
415 with BTC. Exhibits L and series (L1-L-114) are several BTC checks, proving that from June 1982 to
April 1984, Fe Roa Gimenez issued several checks against her BTC Current Account No. 34-714-415 payable
to some individuals and entities such as Erlinda Oledan, Vilma Bautista, The Waldorf Towers, Cartier,
Gliceria Tantoco, Bulgari, Hammer Galleries and Renato Balestra, involving substantial amount of money in
US Dollars. Exhibits M and series (M1-M-25) are several The Chase Manhattan Bank (TCMB) checks
drawn against the account of Fe Roa Gimenez under Account Number 021000021, proving that she issued
several checks drawn against her TCMB account, payable to individuals and entities such as Gliceria
Tantoco, Vilma Bautista and The Waldorf Towers, involving substantial sums in US Dollars. Exhibit N is the
Philippine National Bank (PNB), New York Branch Office Charge Ticket No. FT 56880 dated December 9,
1982 in the amount of US$30,000.00 for Fe Roa Gimenez proving that she received said enormous amount
from the PNB, New York Branch Office, with clearance from the Central Bank, which amount was charged
against PNB Manila. Exhibit N-1 is the PNB New York Branch Advice to Payee No. FT 56535 dated
November 12, 1982 in the amount of US$10,990.00 for Fe Roa Gimenez proving her receipt of such amount
as remitted from California Overseas Bank, Los Angeles. Exhibits O and series (O1-O-8) refer to several
Advices made by Bankers Trust AG Zurich-Geneve Bank in Switzerland to respondent Fe Roa Gimenez
proving that she maintained a current account with said bank under Account Number 107094.50 and that
from July 30, 1984 to August 30, 1984, she placed a substantial amount on time deposit in several banks,
namely, Hypobank, Luzemburg, Luxemburg, Societe Generale, Paris and Bank of Nova Scotia, London.

Exhibit P is the Certification dated March 19, 2002 issued by Director Florino O. Ibanez of the Office of the
President proving that Fe Roa Gimenez, from January 1, 1966 to April 1, 1986, worked with the Office of the
President under different positions, the last of which as Presidential Staff Director with a salary of
P87,072.00 per annum.

Exhibit Q and series (Q-1-Q-18) is the Affirmation of Ralph Shapiro filed with the United States Court of
Appeals in the case entitled, "The Republic of the Philippines vs. Ferdinand E. Marcos, et al." which discussed
certain acts of Fe Roa Gimenez and Vilma Bautista, among others, in relation to the funds of the Marcoses.

Exhibits R and S and series (R-1, R-9; S-1-S-10) refer to the Certificate of Filing of Amended Articles of
Incorporation of GEI Guaranteed Education, Inc., the Amended Articles of Incorporation of GEI Guaranteed
Education, Inc., the Treasurer's Affidavit executed by Ignacio Gimenez and the Director's Certificate
executed by Roberto B. Olanday, Ignacio Gimenez and Roberto Coyuto, Jr. proving Ignacio Gimenez and
Roberto Olanday's interests in GEI Guaranteed Education, Inc.

Exhibits T and series (T-1-T-8) are the Advices made by the Bankers Trust AG Zurich-Geneve Bank in
Switzerland to Ignacio Gimenez proving that he maintained a current account with said bank under Account
Number 101045.50 and that from March to June, 1984, he placed a substantial amount on time deposit in
several banks, namely, Credit Lyonnais, Brussels, Societe Generate, Paris, Credit Commercial De France,
Paris and Bank of Nova Scotia, London.

Exhibits U and V and series (U-1-U-5; V1-V-18) consist of the Affidavit dated April 25, 1986 and the
Declaration dated June 23, 1987 including the attachments, of Oscar Carino, Vice-President and Manager of
the PNB New York Branch, narrating in detail how the funds of the PNB New York Branch were disbursed
outside regular banking business upon the instructions of former President Ferdinand E. Marcos and Imelda
Marcos using Fe Roa Gimenez and others as conduit.

Exhibits W and series (W-1-W-4) are the Debit memos from the PNB to Fe Roa Gimenez while Exhibits
X and X-1 are the Acknowledgments of said respondent, proving that she received substantial amounts of
money which were coursed through the PNB to be used by the Marcos spouses for state visits and foreign
trips.

Exhibit Y and series (Y-1-Y-2) is the Letter dated August 25, 1986 of Juan C. Gatmaitan, Assistant Chief
Legal Counsel of PNB to Charles G. LaBella, Assistant United States Attorney regarding the ongoing
investigation of irregular transactions at the PNB, New York Branch proving that PNB cooperated with the
United States government in connection with the investigation on the irregular transactions of Oscar Carino
at PNB New York Branch.

Exhibit Z is the service record of Fe Roa Gimenez issued by Florino O. Ibanez of the Office of the President
which proves that she worked with the Office of the President from 1966-1986 holding different positions,
the last of which was Presidential Staff Director.

Exhibits AA and series (AA-1-AA-2) are the several Traders Royal Bank checks drawn against Account
No. 74-702836-9 under the account name of Fe Roa Gimenez which prove that she issued said checks
payable to individuals and entities involving substantial amount of money.

Exhibits BB and CC and series (BB-1-BB-17; CC-1-CC-3) are the several Transfer of Funds Advice from
Traders Royal Bank Statements of Account of Fe Roa Gimenez, proving that she maintained a current
account under Account No. 74-7028369 at Traders Royal Bank.

Exhibits HH and series (HH-1-HH-3) are the Certification dated October 3, 2002 of Lamberto R. Barbin,
Officer-in-Charge, Malacanang Records Office, that the Statement of Assets and Liabilities of spouses
Marcoses for the years 1965 up to 1986 are not among the records on file in said Office except 1965, 1967
and 1969; the Statement of Assets and Liabilities as of December 31, 1969 and December 31, 1967 of
former President Ferdinand Marcos; and the Sworn Statement of Financial Condition, Assets, Income and
Liabilities as of December 31, 1965 of former President Ferdinand Marcos. These documentary exhibits
prove the assets and liabilities of former President Marcos for the years 1965, 1967 and 1969.

Exhibit II and series is [sic] the Statement of Assets and Liabilities as of December 31,1969 submitted by
Fe Roa Gimenez which prove that her assets on that period amounted only to P39,500.00.

Exhibit KK is the Table of Contents of Civil Case No. [0]007 before the Sandiganbayan entitled "Republic of
the Philippines vs. Ignacio B. Gimenez and Fe Roa Gimenez, et. al.", including its Annexes which prove the
assets and liabilities of spouses Gimenezes.

Exhibits KK-1 up to KK-12 are several transfer certificates of title and tax declarations in the names of
spouses Gimenezes, proving their acquisition of several real properties.

Exhibits KK-15, KK-18, KK-20 up to KK-27, KK-30, KK-32 up to KK-38 and KK-40 are the General
Information Sheet, Certificate of Filing of Amended Articles of Incorporation, and Amended Articles of
Incorporation of various corporations. These prove the corporations in which Ignacio B. Gimenez has
substantial interests.

Exhibits KK-41 up to KK-44 are the Writs and Letters of Sequestration issued by the PCGG which prove
that the shares of stocks of Ignacio Gimenez in Ignacio B. Gimenez, Securities, Inc. and the real properties
covered by Transfer Certificates of Title Nos. 137638, 132807, 126693 and 126694 located in San Fabian,
Pangasinan, were sequestered by the PCGG.

Exhibit KK-45 is the Memorandum dated August 1, 1988 of Atty. Ralph S. Lee and Alexander M. Berces,
Team Supervisor and Investiogator, [sic] respectively, of IRD, PCGG, proving that the PCGG conducted an
investigation on New City Builders, Inc., Transnational Construction Corporation, and OTO Construction and
Development Corporation in relation to Ignacio B. Gimenez and Roberto O. Olanday.

Exhibits KK-48, KK-49 and KK-50 are certain Lis Pendens from the PCGG addressed to the concerned
Register of Deeds informing that the real properties mentioned therein had been sequestered and are the
subject of Civil Case No. [0]007 before the Sandiganbayan.

Exhibits KK-51, KK-51-A, KK-52 and KK-52-A are the Letter and Writ of Sequestration issued by the
PCGG on Allied Banking Corporation and Guaranteed Education Inc. pursuant to its mandate to go after ill-
gotten wealth.

Exhibits NN, 00, PP, QQ and QQ-1 refer to the Memorandum To All Commercial Banks dated March 14,
1986 issued by then Central Bank Governor Jose B. Fernandez and the Letter dated March 13, 1986 of Mary
Concepcion Bautista, PCGG Commissioner addressed to then Central Bank Governor Fernandez requesting
that names be added to the earlier request of PCGG Chairman Jovito Salonga to instruct all commercial
banks not to allow any withdrawal or transfer of funds from the market placements under the names of said
persons, to include spouses Gimenezes, without authority from PCGG.

Exhibits KK and series, NN, OO, PP, QQ and QQ-1 which prove the various real properties, business
interests and bank accounts owned by spouses Gimenezes were part of the testimony of Atty. Tereso Javier.

Exhibit RR and series (RR-1-RR-23) are the Affidavit dated July 24, 1987 of Dominador Pangilinan,
Acting President and President of Trader's Royal Bank, and the attached Recapitulation, Status of Banker's
Acceptances, Status of Funds and Savings Account Ledger wherein he mentioned that Malacanang
maintained trust accounts at Trader's Royal Bank, the balance of which is approximately 150-175 million
Pesos, and that he was informed by Mr. Rivera that the funds were given to him (Rivera) by Fe Roa Gimenez
for deposit to said accounts.

Exhibits SS and series (SS-1-SS-29) are the Affidavit dated July 23, 1987 of Apolinario K. Medina,
Executive Vice President of Traders Royal Bank and attachments, which include Recapitulation, Status of
Funds, and Messages from Traders Royal Bank Manila to various foreign banks. In his Affidavit, Medina
divulged certain numbered confidential trust accounts maintained by Malacanang with the Trader's Royal
Bank. He further stated that the deposits were so substantial that he suspected that they had been made by
President Marcos or his family.

Exhibit TT and series (TT-1-TT-3) is [sic] the Memorandum dated July 19, 2005 of Danilo R.V. Daniel,
then Director of the Research and Development Department of PCGG regarding the investigation conducted
on the ill-gotten wealth of spouses Gimenezes, the subject matter of Civil Case No. [0]007. He revealed that
during the investigation on the ill-gotten wealth of spouses Gimenezes, it was found out that from 1977 to
1982, several withdrawals, in the total amount of P75,090,306.42 were made from Trust Account No. 128
(A/C 76-128) in favor of I.B. Gimenez, I.B. Gimenez Securities and Fe Roa Gimenez.

Exhibits RR, SS, TT and their series prove that spouses Gimenez maintained bank accounts of substantial
amounts and gained control of various corporations. These are also being offered as part of the testimony of
Danilo R.V. Daniel.27 (Emphasis in the original, citations omitted)

In the second assailed Resolution dated September 13, 2006, the Sandiganbayan denied the Republic's
Motion for Reconsideration and granted the Gimenez Spouses' Motion to Dismiss.28 According to the
Sandiganbayan:
While it is true that litigation is not a game of technicalities and that the higher ends of substantial justice
militate against dismissal of cases purely on technical grounds, the circumstances of this case show that the
ends of justice will not be served if this Court allows the wanton disregard of the Rules of Court and of the
Court's orders. Rules of procedure are designed for the proper and prompt disposition of cases. . . .

The reasons invoked by the plaintiff to justify its failure to timely file the formal offer of evidence fail to
persuade this Court. The missing exhibits mentioned by the plaintiff's counsel appear to be the same
missing documents since 2004, or almost two (2) years ago. The plaintiff had more than ample time to
locate them for its purpose. . . . Since they remain missing after lapse of the period indicated by the Court,
there is no reason why the search for these documents should delay the filing of the formal offer of
evidence.

[Petitioner's] counsel . . . admits that faced with other pressing matters, he lost track of the time. We
cannot just turn a blind eye on the negligence of the parties and in their failure to observe the orders of this
Court. The carelessness of [petitioner's] counsel in keeping track of the deadlines is an unacceptable reason
for the Court to set aside its Order and relax the observance of the period set for filing the formal offer of
evidence.29 (Citation omitted)

The Sandiganbayan also found that the Republic failed to prosecute its case for an unreasonable length of
time and to comply with the court's rules.30 The court also noted that the documentary evidence presented
by the Republic consisted mostly of certified true copies.31 However, the persons who certified the
documents as copies of the original were not presented.32 Hence, the evidence lacked probative value.33 The
dispositive portion of the assailed Resolution reads:

ACCORDINGLY, there being no valid and cogent justification shown by the plaintiff for the Court to Grant
its Motion for Reconsideration and admit its Formal Offer of Evidence, the plaintiff's Motion for
Reconsideration and to Admit Attached Formal Offer of Evidence is DENIED. The Motion to Dismiss on
Demurrer to Evidence filed by the defendant Ignacio B. Gimenez and adopted by defendant Fe Roa Gimenez
is GRANTED. The case is then DISMISSED.

SO ORDERED.34 (Emphasis in the original)

The Republic filed its Petition for Review on Certiorari dated November 3, 2006 before this court.35 chan roble svirtuallaw lib rary

The Gimenez Spouses were required to comment on the Petition.36 This court noted the separate
Comments37 filed by the Gimenez Spouses.38 The Republic responded to the Comments through a
Consolidated Reply39 dated June 22, 2007.

In the Resolution40 dated August 29, 2007, this court required the parties to submit their memoranda.41 chanro blesvi rtua llawli bra ry

On February 18, 2008, this court resolved to require the parties to "move in the premises[.]"42 chan roble svirtuallaw lib rary

On March 2, 2012, the Republic filed a Motion for Leave to Re-open Proceedings, to File and Admit Attached
Supplement to the Petition for Certiorari.43 In this Supplement, the Republic argued that the second assailed
Resolution dated September 13, 2006 was void for failing to state the facts and the law on which it was
based.44 This Motion was granted, and the Gimenez Spouses were required to file their Comment on the
Supplement to the Petition.45 Thereafter, the Republic filed its Reply.46 chan roble svirtual lawlib rary

Fe Roa Gimenez filed a Rejoinder47 dated December 19, 2012 which was expunged by this court in a
Resolution48 dated January 23, 2013. Ignacio Gimenez's Motion for Leave to File and Admit Attached
Rejoinder49 was denied.50 chan roblesv irtuallawl ib rary

The Republic raised the following issues:

Whether or not the Sandiganbayan gravely erred in dismissing the case in the light of the allegations in the
Complaint which were substantiated by overwhelming evidence presented vis-a-vis the material admissions
of spouses Gimenezes as their answer failed to specifically deny that they were dummies of former President
Ferdinand E. Marcos and that they acquired illegal wealth grossly disproportionate to their lawful income in a
manner prohibited under the Constitution and Anti-Graft Statutes.

Whether or not the Sandiganbayan gravely erred in denying petitioner's Motion to Admit Formal Offer of
Evidence on the basis of mere technicalities, depriving petitioner of its right to due process.

Whether or not the Sandiganbayan gravely erred in making a sweeping pronouncement that petitioner's
evidence do not bear any probative value.51 chanrobles law

The issues for consideration of this court are:

First, whether a Petition for Review on Certiorari was the proper remedy to assail the Sandiganbayan
Resolutions; and

Second, whether the Sandiganbayan erred in holding that petitioner Republic of the Philippines waived the
filing of its Formal Offer of Evidence and in granting respondents Ignacio Gimenez and Fe Roa Gimenez's
Motion to Dismiss on demurrer to evidence.

We grant the Petition. chanRoblesv irt ual Lawlib rary

Respondent Ignacio Gimenez pictures petitioner as being confused as to the proper mode of review of the
Sandiganbayan Resolutions. According to him, petitioner claims that the Sandiganbayan committed grave
abuse of discretion.52 Hence, petitioner should have filed a petition for certiorari under Rule 65 and not a
petition for review under Rule 45 of the Rules of Court.53 Nevertheless, the Sandiganbayan did not commit
any error, and petitioner has to show that the Sandiganbayan committed grave abuse of discretion
amounting to lack of or in excess of jurisdiction.54 c hanroblesv irt uallawl ibra ry

Observance of the proper procedure before courts, especially before the Sandiganbayan, cannot be stressed
enough. Due process is enshrined in the Constitution, specifically the Bill of Rights.55 "Due process [in
criminal cases] guarantees the accused a presumption of innocence until the contrary is proved[.]"56 "Mere
suspicion of guilt should not sway judgment."57 chanroblesv irt uallawl ibrary

To determine whether a petition for review is the proper remedy to assail the Sandiganbayan Resolutions,
we review the nature of actions for reconveyance, revision, accounting, restitution, and damages.

Actions for reconveyance, revision, accounting, restitution, and damages for ill-gotten wealth are also called
civil forfeiture proceedings.

Republic Act No. 137958 provides for the procedure by which forfeiture proceedings may be instituted
against public officers or employees who "[have] acquired during his [or her] incumbency an amount of
property which is manifestly out of proportion to his [or her] salary as such public officer or employee and to
his [or her] other lawful income and the income from legitimately acquired property, [which] property shall
be presumed prima facie to have been unlawfully acquired."59 chanro blesvi rt uallawl ibra ry

This court has already settled the Sandiganbayan's jurisdiction over civil forfeiture cases:

. . . violations of R.A. No. 1379 are placed under the jurisdiction of the Sandiganbayan, even though the
proceeding is civil in nature, since the forfeiture of the illegally acquired property amounts to a penalty.60 chanrob lesvi rtua llawlib ra ry

In Garcia v. Sandiganbayan, et al.,61 this court re-affirmed the doctrine that forfeiture proceedings under
Republic Act No. 1379 are civil in nature.62 Civil forfeiture proceedings were also differentiated from plunder
cases:

. . . a forfeiture case under RA 1379 arises out of a cause of action separate and different from a plunder
case. ... In a prosecution for plunder, what is sought to be established is the commission of the criminal acts
in furtherance of the acquisition of ill-gotten wealth. . . . On the other hand, all that the court needs to
determine, by preponderance of evidence, under RA 1379 is the disproportion of respondent's properties to
his legitimate income, it being unnecessary to prove how he acquired said properties. As correctly
formulated by the Solicitor General, the forfeitable nature of the properties under the provisions of RA 1379
does not proceed from a determination of a specific overt act committed by the respondent public officer
leading to the acquisition of the illegal wealth.63 (Citation omitted)

To stress, the quantum of evidence required for forfeiture proceedings under Republic Act No. 1379 is the
same with other civil cases — preponderance of evidence.64 chan roble svirtuallaw lib rary

When a criminal case based on demurrer to evidence is dismissed, the dismissal is equivalent to an
acquittal.65
chanrob lesvi rtua llawli bra ry

As a rule, once the court grants the demurrer, the grant amounts to an acquittal; any further prosecution of
the accused would violate the constitutional proscription on double jeopardy.66 c hanro bles law

Hence, the Republic may only assail an acquittal through a petition for certiorari under Rule 65 of the Rules
of Court:

Accordingly, a review of a dismissal order of the Sandiganbayan granting an accused's demurrer to evidence
may be done via the special civil action of certiorari under Rule 65, based on the narrow ground of grave
abuse of discretion amounting to lack or excess of jurisdiction.67 (Citation omitted)

In this case, a civil forfeiture under Republic Act No. 1379, petitioner correctly filed a Petition for Review on
Certiorari under Rule 45 of the Rules of Court. Section 1 of the Rule provides the mode of appeal from
judgments, final orders, or resolutions of the Sandiganbayan:

SECTION 1. Filing of petition with Supreme Court.— A party desiring to appeal by certiorari from a judgment
or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other
courts whenever authorized by law, may file with the Supreme Court a verified petition for review on
certiorari. The petition shall raise only questions of law which must be distinctly set forth.

II

Petitioner argues that substantial justice requires doing away with the procedural technicalities.68 Loss of
vital documentary proof warranted extensions to file the Formal Offer of Evidence.69 Honest efforts to locate
several missing documents resulted in petitioner's inability to file the pleading within the period granted by
the Sandiganbayan.70 chanrob lesvi rtua llawli bra ry

Respondent Ignacio Gimenez argues that petitioner cannot fault the Sandiganbayan for its incompetence
during trial.71 Even if the evidence were formally offered within the prescribed period, PCGG's evidence still
had no probative value.72 It is solely petitioner's fault "that the persons who certified to the photocopies of
the originals were not presented to testify [.]"73 It is also misleading to argue that the pieces of
documentary evidence presented are public documents.74 "The documents are not public in the sense that
these are official issuances of the Philippine government."75 "The bulk consists mainly of notarized, private
documents that have simply been certified true and faithful."76 chanrob lesvi rtua llawli bra ry
According to respondent Fe Roa Gimenez, petitioner tries to excuse its non-filing of the Formal Offer of
Evidence within the prescribed period by raising its efforts to locate the 66 missing documents.77However,
the issue of the missing documents was laid to rest during the hearing on November 16, 2004.78The
Sandiganbayan gave petitioner until March 2005 to produce the documents; otherwise, these would be
excluded.79 The testimonies of the witnesses related to the missing documents would also be expunged from
the case records.80chanro blesvi rt uallawl ibra ry

Moreover, respondent Fe Roa Gimenez claims that "[t]he Sandiganbayan did not err when it ruled that the
great bulk of the documentary evidence offered by the PCGG have no probative value."81 Aside from the 66
missing documents it failed to present, almost all of petitioner's pieces of documentary evidence were mere
photocopies.82 The few that were certified true copies were not testified on by the persons who certified
these documents.83 chanrob lesvi rtua llawlib ra ry

Our Rules of Court lays down the procedure for the formal offer of evidence. Testimonial evidence is offered
"at the time [a] witness is called to testify."84 Documentary and object evidence, on the other hand, are
offered "after the presentation of a party's testimonial evidence."85 Offer of documentary or object evidence
is generally done orally unless permission is given by the trial court for a written offer of evidence.86 c hanroblesv irt uallawl ibra ry

More importantly, the Rules specifically provides that evidence must be formally offered to be considered by
the court. Evidence not offered is excluded in the determination of the case.87 "Failure to make a formal
offer within a considerable period of time shall be deemed a waiver to submit it."88 chanroble svi rtual lawlib rary

Rule 132, Section 34 provides:

SEC. 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.

The rule on formal offer of evidence is intertwined with the constitutional guarantee of due process. Parties
must be given the opportunity to review the evidence submitted against them and take the necessary
actions to secure their case.89 Hence, any document or object that was marked for identification is not
evidence unless it was "formally offered and the opposing counsel [was] given an opportunity to object to it
or cross-examine the witness called upon to prove or identify it."90 chanro blesvi rtua llawli bra ry

This court explained further the reason for the rule:

The Rules of Court provides that "the court shall consider no evidence which has not been formally offered."
A formal offer is necessary because judges are mandated to rest their findings of facts and their judgment
only and strictly upon the evidence offered by the parties at the trial. Its function is to enable the trial judge
to know the purpose or purposes for which the proponent is presenting the evidence. On the other hand,
this allows opposing parties to examine the evidence and object to its admissibility. Moreover, it facilitates
review as the appellate court will not be required to review documents not previously scrutinized by the trial
court.91 (Emphasis supplied, citations omitted)

To consider a party's evidence which was not formally offered during trial would deprive the other party of
due process. Evidence not formally offered has no probative value and must be excluded by the court.92 chan roble svirtual lawlib rary

Petitioner's failure to file its written Formal Offer of Evidence of the numerous documentary evidence
presented within the prescribed period is a non-issue. In its first assailed Resolution dated May 25, 2006,
the Sandiganbayan declared that petitioner waived the filing of its Formal Offer of Evidence when it failed to
file the pleading on May 13, 2006, the deadline based on the extended period granted by the court.
Petitioner was granted several extensions of time by the Sandiganbayan totalling 75 days from the date
petitioner terminated its presentation of evidence. Notably, this 75-day period included the original 30-day
period. Subsequently, petitioner filed a Motion for Reconsideration and to Admit Attached Formal Offer of
Evidence, and the Formal Offer of Evidence.

In resolving petitioner's Motion for Reconsideration and to Admit Attached Formal Offer of Evidence, the
Sandiganbayan found the carelessness of petitioner's counsel unacceptable. According to the
Sandiganbayan, it could not countenance the non-observance of the court's orders.

This court has long acknowledged the policy of the government to recover the assets and properties illegally
acquired or misappropriated by former President Ferdinand E. Marcos, his wife Mrs. Imelda R. Marcos, their
close relatives, subordinates, business associates, dummies, agents or nominees.93 Hence, this court has
adopted a liberal approach regarding technical rules of procedure in cases involving recovery of ill-gotten
wealth:

In all the alleged ill-gotten wealth cases filed by the PCGG, this Court has seen fit to set aside technicalities
and formalities that merely serve to delay or impede judicious resolution. This Court prefers to have such
cases resolved on the merits at the Sandiganbayan. But substantial justice to the Filipino people and to all
parties concerned, not mere legalisms or perfection of form, should now be relentlessly and firmly pursued.
Almost two decades have passed since the government initiated its search for and reversion of such ill-
gotten wealth. The definitive resolution of such cases on the merits is thus long overdue. If there is proof of
illegal acquisition, accumulation, misappropriation, fraud or illicit conduct, let it be brought out now. Let the
ownership of these funds and other assets be finally determined and resolved with dispatch, free from all the
delaying technicalities and annoying procedural sidetracks.94 (Emphasis supplied, citation omitted)

To be clear, petitioner was able to file its Formal Offer of Evidence, albeit, belatedly. Petitioner hurdled 19
years of trial before the Sandiganbayan to present its evidence as shown in its extensive Formal Offer of
Evidence. As petitioner argues:

Undeniable from the records of the case is that petitioner was vigorous in prosecuting the case. The most
tedious and crucial stage of the litigation and presentation of evidence has been accomplished. Petitioner
completed its presentation of evidence proving the ill-gotten nature and character of the funds and assets
sought to be recovered in the present case. It presented vital testimonial and documentary evidence
consisting of voluminous record proving the gross disparity of the subject funds to spouses Gimenezes'
combined declared income which must be reconveyed to the Republic for being acquired in blatant violation
of the Constitution and the Anti-Graft statutes.95 chanroble slaw

This court is not unmindful of the difficulty in gathering voluminous documentary evidence in cases of
forfeiture of ill-gotten wealth acquired throughout the years. It is never easy to prosecute corruption and
take back what rightfully belongs to the government and the people of the Republic.

This is not the first time that this court relaxed the rule on formal offer of evidence.

Tan v. Lim96 arose from two civil Complaints: one for injunction and another for legal redemption, which
were heard jointly before the trial court.97 The defendant did not file a Formal Offer of Evidence in the
injunction case98 and merely adopted the evidence offered in the legal redemption case.99 The trial court
held that the defendant's failure to file his Formal Offer of Evidence in the injunction case rendered the
plaintiff's evidence therein as uncontroverted.100 The Court of Appeals reversed the Decision and was
affirmed by this court.101 This court ruled that while the trial court's reasoning in its Decision was technically
sound, a liberal interpretation was more appropriate and in line with substantial justice:

It may be true that Section 34, Rule 132 of the rules directs the court to consider no evidence which has not
been formally offered and that under Section 35, documentary evidence is offered after presentation of
testimonial evidence. However, a liberal interpretation of these Rules would have convinced the trial court
that a separate formal offer of evidence in Civil Case No. 6518 was superfluous because not only was an
offer of evidence made in Civil Case No. 6521 that was being jointly heard by the trial court, counsel for Jose
Renato Lim had already declared he was adopting these evidences for Civil Case No. 6518. The trial court
itself stated that it would freely utilize in one case evidence adduced in the other only to later abandon this
posture. Jose Renato Lim testified in Civil Case No. 6518. The trial court should have at least considered his
testimony since at the time it was made, the rules provided that testimonial evidence is deemed offered at
the time the witness is called to testify. Rules of procedure should not be applied in a very rigid, technical
case as they are devised chiefly to secure and not defeat substantial justice.
....

The logic of the Court of Appeals is highly persuasive. Indeed, apparently, the trial court was being overly
technical about the non-submission of Jose Renato Lim's formal offer of evidence. This posture not only goes
against Section 6, Rule 1 of the Rules of Civil Procedure decreeing a liberal construction of the rules to
promote a just, speedy and inexpensive litigation but ignores the consistent rulings of the Court against
utilizing the rules to defeat the ends of substantial justice. Despite the intervening years, the language of
the Court in Manila Railroad Co. vs. Attorney-General, still remains relevant: ChanRobles Vi rtua lawlib rary

"x x x. The purpose of procedure is not to thwart justice. Its proper aim is to facilitate the application of
justice to the rival claims of contending parties. It was created not to hinder and delay but to facilitate and
promote the administration of justice. It does not constitute the thing itself which courts are always striving
to secure to litigants. It is designed as the means best adapted to obtain that thing. In other words, it is a
means to an end. It is the means by which the powers of the court are made effective in just judgments.
When it loses the character of the one and takes on that of the other the administration of justice becomes
incomplete and unsatisfactory and lays itself open to grave criticism."102 (Emphasis supplied, citations
omitted)

Furthermore, "subsequent and substantial compliance . . . may call for the relaxation of the rules of
procedure."103 chan rob lesvi rtual lawlib rary

Weighing the amount of time spent in litigating the case against the number of delays petitioner incurred in
submitting its Formal Offer of Evidence and the state's policy on recovering ill-gotten wealth, this court is of
the belief that it is but only just that the Rules be relaxed and petitioner be allowed to submit its written
Formal Offer of Evidence. The Sandiganbayan's Resolutions should be reversed. cha nRoblesvi rt ual Lawlib rary

III

According to petitioner, the Sandiganbayan erred when it granted the demurrer to evidence filed by
respondents and dismissed the case despite a "prima facie foundation [based on the pleadings and
documents on record] that spouses Gimenezes amassed enormous wealth grossly disproportionate to their
lawful income or declared lawful assets."104 chanroblesv irt uallawl ibra ry

Similarly, the Complaint alleged specific acts committed by respondent Ignacio Gimenez:

[T]aking undue advantage of his relationship, influence, and connection, by himself and/or in unlawful
concert and active collaboration with former President Ferdinand E. Marcos and Imelda R. Marcos for the
purpose of mutually enriching themselves and preventing the disclosure and recovery of assets illegally
obtained: (a) acted as the dummy, nominee or agent of former President Ferdinand E. Marcos and Imelda R.
Marcos in several corporations such as, the Allied Banking Corporation, Acoje Mining Corporation, Baguio
Gold Mining, Multi National Resources, Philippine Oversees, Inc. and Pioneer Natural Resources; (b)
unlawfully obtained, through corporations organized by them such as the New City Builders, Inc. (NCBI),
multi-million peso contracts with the government buildings, such as the University of Life Sports Complex
and Dining Hall as well as projects of the National Manpower Corporation, Human Settlements, GSIS, and
Maharlika Livelihood, to the gross and manifest disadvantage of the Government and the Filipino people;
and (c) in furtherance of the above stated illegal purposes, organized several establishments engaged in
food, mining and other businesses such as the Transnational Construction Corporation, Total Systems
Technology, Inc., Pyro Control Technology Corporation, Asian Alliance, Inc., A & T Development Corporation,
RBO Agro Forestry Farm Development Corporation, Bathala Coal Mining Corporation, Coal Basis Mining
Corporation, Titan Coal Mining Corporation, GEI Guaranteed Education, Inc., and I.B. Gimenez Securities,
Inc.105
chanrob leslaw
Despite the specific allegations in the Complaint, petitioner contends that respondents merely gave general
denials to the allegations in the Complaint.106 "[N]o specific denial [was] made on the material allegations
[in] the [C]omplaint."107 chan roblesv irt uallawl ibra ry

Respondents, on the other hand, assert that the Sandiganbayan was correct in granting the Motion to
Dismiss on demurrer to evidence.

Respondent Ignacio Gimenez claims that petitioner cannot be excused from filing its Formal Offer of
Evidence considering the numerous extensions given by the Sandiganbayan. Petitioner had all the resources
and time to gather, collate, and secure the necessary evidence to build its case.108 chan roble svirtuallaw li brary

Petitioner's presentation of evidence took 19 years to complete, and yet it failed to submit the necessary
documents and pleading.109 chanro bl esvirt uallawl ibra ry

Similarly, respondent Fe Roa Gimenez argues that petitioner was negligent in failing to comply with the
Sandiganbayan's orders considering the inordinate amount of time given to petitioner to present evidence,
which resulted in only five witnesses in 19 years.110 chan roble svirtual lawlib rary

To determine the propriety of granting respondents' Motion to Dismiss based on Demurrer to Evidence, we
review the nature of demurrer.

Rule 33, Section 1 of the Rules of Court provides:

SECTION 1. Demurrer to evidence.— After the plaintiff has completed the presentation of his evidence, the
defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no
right to relief. If his motion is denied, he shall have the right to present evidence. If the motion is granted
but on appeal the order of dismissal is reversed he shall be deemed to have waived the right to present
evidence.

In Oropesa v. Oropesa111 where this court affirmed the dismissal of the case on demurrer to evidence due to
petitioner's non-submission of the Formal Offer of Evidence,112 demurrer to evidence was defined as:

. . . "an objection by one of the parties in an action, to the effect that the evidence which his adversary
produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue." We
have also held that a demurrer to evidence "authorizes a judgment on the merits of the case without the
defendant having to submit evidence on his part, as he would ordinarily have to do, if plaintiff's evidence
shows that he is not entitled to the relief sought."113 (Citations omitted)

This court has laid down the guidelines in resolving a demurrer to evidence:

A demurrer to evidence may be issued when, upon the facts and the law, the plaintiff has shown no right to
relief. Where the plaintiffs evidence together with such inferences and conclusions as may reasonably be
drawn therefrom does not warrant recovery against the defendant, a demurrer to evidence should be
sustained. A demurrer to evidence is likewise sustainable when, admitting every proven fact favorable to the
plaintiff and indulging in his favor all conclusions fairly and reasonably inferable therefrom, the plaintiff has
failed to make out one or more of the material elements of his case, or when there is no evidence to support
an allegation necessary to his claim. It should be sustained where the plaintiff's evidence is prima facie
insufficient for a recovery.114 chan robles law

Furthermore, this court already clarified what the trial court determines when acting on a motion to dismiss
based on demurrer to evidence:

What should be resolved in a motion to dismiss based on a demurrer to evidence is whether the plaintiff is
entitled to the relief based on the facts and the law. The evidence contemplated by the rule on demurrer is
that which pertains to the merits of the case, excluding technical aspects such as capacity to sue. . .
.115 (Emphasis supplied, citation omitted)

Petitioner, in its Supplement to the Petition, argued that the testimonial evidence it had presented and
offered during trial warranted consideration and analysis.116 The Sandiganbayan erroneously excluded these
testimonies in determining whether to grant the motion to dismiss or not, hence:

. . . even assuming that the Sandiganbayan denied petitioner's formal offer of evidence, petitioner still had
testimonial evidence in its favor which should [have] been considered. It behoved then upon the
Sandiganbayan to discuss or include in its discussion, at the very least, an analysis of petitioner's
testimonial evidence.117chan roble slaw

With our ruling reversing the Sandiganbayan's Resolutions on petitioner's Formal Offer of Evidence, what
should be determined now by the Sandiganbayan is whether petitioner's evidence is sufficient to entitle it to
the relief it seeks after the Sandiganbayan rested its case. Petitioner is required to establish preponderance
of evidence.

In the second assailed Resolution, the Sandiganbayan granted respondents' Motion to Dismiss based on the
lack of Formal Offer of Evidence of petitioner. At the same time, it observed that the pieces of documentary
evidence presented by petitioner were mostly certified true copies of the original. In passing upon the
probative value of petitioner's evidence, the Sandiganbayan held:

On another note, the evidence presented by the plaintiff consisted mainly of certified true copies of the
original. These certified copies of documentary evidence presented by the plaintiff were not testified on by
the person who certified them to be photocopies of the original. Hence, these evidence do not appear to
have significant substantial probative value.118 chan rob lesvi rtual lawlib rary

Petitioner faults the Sandiganbayan for making "a general and sweeping statement that the evidence
presented by petitioner lacked probative value for the reason that they are mainly certified true copies which
had not been testified on by the person who certified [them]."119 Thus, its right to due process was violated
when the Sandiganbayan rejected petitioner's documentary evidence in the same Resolution which
dismissed the case.120 chan roble svi rtual lawlib rary

Petitioner argues that: a) respondents unqualifiedly admitted the identity and authenticity of the
documentary evidence presented by petitioner;121 and b) the documents it presented were public
documents, and there was no need for the identification and authentication of the original documentary
exhibits.122 Petitioner relies on the Sandiganbayan Order123 dated August 6, 2002. The Order reads:

Considering the manifestation of Atty. Reno Gonzales, counsel for plaintiff/PCGG, that the defendant Fe Roa
Gimenez, through counsel, is willing to stipulate that the documents to be presented and identified by the
witness are in her custody as Records Officer of the PCGG, the parties agreed to dispense with the testimony
of Ma. Lourdes Magno.

WHEREFORE, and as prayed for, the continuation of the presentation of plaintiff's evidence is set on October
9 and 10, 2002, both at 8:30 o'clock [sic] in the morning.

SO ORDERED.124 (Emphasis supplied)

Petitioner claims that the following exhibits were acquired in relation to the PCGG's functions prescribed
under Executive Order No. 1, Section 3(b),125 and form part of the official records of the
PCGG:126"Certifications as to the various positions held in Government by Fe Roa-Gimenez, her salaries and
compensation during her stint as a public officer, the BIR Income Tax Returns and Statement of Assets and
Liabilities showing the declared income of spouses Gimenezes; the Articles of Incorporation of various
corporations showing spouses Gimenezes' interests on various corporations; and several transactions
involving huge amounts of money which prove that they acted as conduit in the disbursement of
government funds."127 chanroble svirtual lawlib rary

On the other hand, respondent Ignacio Gimenez argues that petitioner's documents are not "official
issuances of the Philippine government."128 They are mostly notarized private documents.129 Petitioner's
evidence has no probative value; hence, a dismissal on demurrer to evidence is only proper.130Respondent
Fe Roa Gimenez claims that the Sandiganbayan did not err in holding that the majority of petitioner's
documentary evidence has no probative value, considering that most of these documents are only
photocopies.131cha nrob lesvi rtua llawlib ra ry

The evidence presented by petitioner before the Sandiganbayan deserves better treatment.

For instance, the nature and classification of the documents should have been ruled upon. Save for certain
cases, the original document must be presented during trial when the subject of the inquiry is the contents
of the document.132 This is the Best Evidence Rule provided under Rule 130, Section 3 of the Rules of Court:

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

(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the
part of the offeror;

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

(c) When the original consists of numerous accounts or other documents which cannot be examined in court
without great loss of time and the fact sought to be established from them is only the general result of the
whole; and

(d) When the original is a public record in the custody of a public officer or is recorded in a public office.

In case of unavailability of the original document, secondary evidence may be presented133 as provided for
under Sections 5 to 7 of the same Rule:

SEC. 5. When original document is unavailable.— When the original document has been lost or destroyed, or
cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its
unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents
in some authentic document, or by the testimony of witnesses in the order stated.

SEC. 6. When original document is in adverse party's custody or control. — If the document is in the custody
or under the control of adverse party, he must have reasonable notice to produce it. If after such notice and
after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be
presented as in the case of its loss. (5a)

SEC. 7. Evidence admissible when original document is a public record.— When the original of a document is
in the custody of a public officer or is recorded in a public office, its contents may be proved by a certified
copy issued by the public officer in custody thereof.(Emphasis supplied)

In Citibank, N.A. v. Sabeniano,134 citing Estrada v. Hon. Desierto,135 this court clarified the applicability of
the Best Evidence Rule:
As the afore-quoted provision states, the best evidence rule applies only when the subject of the inquiry is
the contents of the document. The scope of the rule is more extensively explained thus —
But even with respect to documentary evidence, the best evidence rule applies only when the content of
such document is the subject of the inquiry.Where the issue is only as to whether such document was
actually executed, or exists, or on the circumstances relevant to or surrounding its execution, the best
evidence rule does not apply and testimonial evidence is admissible (5 Moran, op. cit., pp. 76-66; 4 Martin,
op. cit., p. 78). Any other substitutionary evidence is likewise admissible without need for accounting for the
original.

Thus, when a document is presented to prove its existence or condition it is offered not as documentary, but
as real, evidence. Parol evidence of the fact of execution of the documents is allowed (Hernaez, et al. vs.
McGrath, etc., et al., 91Phil[.]565).xxx

In Estrada v. Desierto, this Court had occasion to rule that —

It is true that the Court relied not upon the original but only [a] copy of the Angara Diary as published in the
Philippine Daily Inquirer on February 4-6, 2001. In doing so, the Court, did not, however, violate the best
evidence rule. Wigmore, in his book on evidence, states that:

"Production of the original may be dispensed with, in the trial court's discretion, whenever in the case in
hand the opponent does not bona fide dispute the contents of the document and no other useful purpose will
be served by requiring production. chanRoblesvi rt ualLaw lib rary

"xxx xxx xxx

"In several Canadian provinces, the principle of unavailability has been abandoned, for certain documents in
which ordinarily no real dispute arised [sic]. This measure is a sensible and progressive one and deserves
universal adoption (post, sec. 1233). Its essential feature is that a copy may be used unconditionally, if the
opponent has been given an opportunity to inspect it."
This Court did not violate the best evidence rule when it considered and weighed in evidence the
photocopies and microfilm copies of the PNs, MCs, and letters submitted by the petitioners to establish the
existence of respondent's loans. The terms or contents of these documents were never the point of
contention in the Petition at bar. It was respondent's position that the PNs in the first set (with the exception
of PN No. 34534) never existed, while the PNs in the second set (again, excluding PN No. 34534) were
merely executed to cover simulated loan transactions. As for the MCs representing the proceeds of the
loans, the respondent either denied receipt of certain MCs or admitted receipt of the other MCs but for
another purpose. Respondent further admitted the letters she wrote personally or through her
representatives to Mr. Tan of petitioner Citibank acknowledging the loans, except that she claimed that
these letters were just meant to keep up the ruse of the simulated loans. Thus, respondent questioned the
documents as to their existence or execution, or when the former is admitted, as to the purpose for which
the documents were executed, matters which are, undoubtedly, external to the documents, and which had
nothing to do with the contents thereof.

Alternatively, even if it is granted that the best evidence rule should apply to the evidence presented by
petitioners regarding the existence of respondent's loans, it should be borne in mind that the rule admits of
the following exceptions under Rule 130, Section 5 of the revised Rules of Court[.]136 (Emphasis supplied,
citation omitted)

Furthermore, for purposes of presenting these as evidence before courts, documents are classified as either
public or private. Rule 132, Section 19 of the Rules of Court provides:

SEC. 19. Classes of Documents.— For the purpose of their presentation in evidence, documents are either
public or private.

Public documents are:

(a) The written official acts, or records of the official acts of the sovereign authority, official bodies and
tribunals, and public officers, whether of the Philippines, or of a foreign country;

(b) Documents acknowledge before a notary public except last wills and testaments; and

(c) Public records, kept in the Philippines, of private documents required by law to be entered therein.

All other writings are private.

The same Rule provides for the effect of public documents as evidence and the manner of proof for public
documents:

SEC. 23. Public documents as evidence.— Documents consisting of entries in public records made in the
performance of a duty by a public officer are prima facie evidence of the facts therein stated. All other public
documents are evidence, even against a third person, of the fact which gave rise to their execution and of
the date of the latter.

SEC. 24. Proof of official record.— The record of public documents referred to in paragraph (a) of Section
19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy
attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the
record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which
the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or
legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his
office.
SEC. 25. What attestation of copy must state.— Whenever a copy of a document or record is attested for
the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the
original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the
attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court.
....
SEC. 27. Public record of a private document.— An authorized public record of a private document may be
proved by the original record, or by a copy thereof, attested by the legal custodian of the record, with an
appropriate certificate that such officer has the custody.
....
SEC. 30. Proof of notarial documents.— Every instrument duly acknowledged or proved and certified as
provided by law, may be presented in evidence without further proof, the certificate of acknowledgment
being prima facie evidence of the execution of the instrument or document involved. (Emphasis supplied)

Emphasizing the importance of the correct classification of documents, this court pronounced:

The nature of documents as either public or private determines how the documents may be presented as
evidence in court. A public document, by virtue of its official or sovereign character, or because it has been
acknowledged before a notary public (except a notarial will) or a competent public official with the
formalities required by law, or because it is a public record of a private writing authorized by law, is self-
authenticating and requires no further authentication in order to be presented as evidence in court. In
contrast, a private document is any other writing, deed, or instrument executed by a private person without
the intervention of a notary or other person legally authorized by which some disposition or agreement is
proved or set forth. Lacking the official or sovereign character of a public document, or the solemnities
prescribed by law, a private document requires authentication in the manner allowed by law or the Rules of
Court before its acceptance as evidence in court.137 (Emphasis supplied)

The distinction as to the kind of public document under Rule 132, Section 19 of the Rules of Court is
material with regard to the fact the evidence proves. In Philippine Trust Company v. Hon. Court of Appeals,
et al.,138 this court ruled that:

. . . not all types of public documents are deemed prima facie evidence of the facts therein stated:

....

"Public records made in the performance of a duty by a public officer" include those specified as public
documents under Section 19(a), Rule 132 of the Rules of Court and the acknowledgement, affirmation or
oath, or jurat portion of public documents under Section 19(c). Hence, under Section 23, notarized
documents are merely proof of the fact which gave rise to their execution (e.g., the notarized Answer to
Interrogatories . . . is proof that Philtrust had been served with Written Interrogatories), and of the date of
the latter (e.g., the notarized Answer to Interrogatories is proof that the same was executed on October 12,
1992, the date stated thereon), but is not prima facie evidence of the facts therein stated. Additionally,
under Section 30 of the same Rule, the acknowledgement in notarized documents is prima facie evidence of
the execution of the instrument or document involved (e.g., the notarized Answer to Interrogatories is prima
facie proof that petitioner executed the same).

The reason for the distinction lies with the respective official duties attending the execution of the different
kinds of public instruments. Official duties are disputably presumed to have been regularly performed. As
regards affidavits, including Answers to Interrogatories which are required to be sworn to by the person
making them, the only portion thereof executed by the person authorized to take oaths is the jurat. The
presumption that official duty has been regularly performed therefore applies only to the latter portion,
wherein the notary public merely attests that the affidavit was subscribed and sworn to before him or her,
on the date mentioned thereon. Thus, even though affidavits are notarized documents, we have ruled that
affidavits, being self-serving, must be received with caution.139 (Emphasis supplied, citations omitted)

In Salas v. Sta. Mesa Market Corporation,140 this court discussed the difference between mere copies of
audited financial statements submitted to the Bureau of Internal Revenue (BIR) and Securities and
Exchange Commission (SEC), and certified true copies of audited financial statements obtained or secured
from the BIR or the SEC which are public documents under Rule 132, Section 19(c) of the Revised Rules of
Evidence:

The documents in question were supposedly copies of the audited financial statements of SMMC. Financial
statements (which include the balance sheet, income statement and statement of cash flow) show the fiscal
condition of a particular entity within a specified period. The financial statements prepared by external
auditors who are certified public accountants (like those presented by petitioner) are audited financial
statements. Financial statements, whether audited or not, are, as [a] general rule, private documents.
However, once financial statements are filed with a government office pursuant to a provision of law, they
become public documents.

Whether a document is public or private is relevant in determining its admissibility as evidence. Public
documents are admissible in evidence even without further proof of their due execution and genuineness.
On the other hand, private documents are inadmissible in evidence unless they are properly authenticated.
Section 20, Rule 132 of the Rules of Court provides:

....

Petitioner and respondents agree that the documents presented as evidence were mere copies of the
audited financial statements submitted to the BIR and SEC. Neither party claimed that copies presented
were certified true copies of audited financial statements obtained or secured from the BIR or the SEC which
under Section 19(c), Rule 132 would have been public documents. Thus, the statements presented were
private documents. Consequently, authentication was a precondition to their admissibility in evidence.
During authentication in court, a witness positively testifies that a document presented as evidence is
genuine and has been duly executed or that the document is neither spurious nor counterfeit nor executed
by mistake or under duress. In this case, petitioner merely presented a memorandum attesting to the
increase in the corporation's monthly market revenue, prepared by a member of his management team.
While there is no fixed criterion as to what constitutes competent evidence to establish the authenticity of a
private document, the best proof available must be presented. The best proof available, in this instance,
would have been the testimony of a representative of SMMC's external auditor who prepared the audited
financial statements. Inasmuch as there was none, the audited financial statements were never
authenticated.141 (Emphasis supplied, citations omitted)

Indeed, in Republic v. Marcos-Manotoc,142 this court held that mere collection of documents by the PCGG
does not make such documents public documents per se under Rule 132 of the Rules of Court:

The fact that these documents were collected by the PCGG in the course of its investigations does not make
them per se public records referred to in the quoted rule.

Petitioner presented as witness its records officer, Maria Lourdes Magno, who testified that these public and
private documents had been gathered by and taken into the custody of the PCGG in the course of the
Commission's investigation of the alleged ill-gotten wealth of the Marcoses. However, given the purposes for
which these documents were submitted, Magno was not a credible witness who could testify as to their
contents. To reiterate, "[i]f the writings have subscribing witnesses to them, they must be proved by those
witnesses." Witnesses can testify only to those facts which are of their personal knowledge; that is, those
derived from their own perception. Thus, Magno could only testify as to how she obtained custody of these
documents, but not as to the contents of the documents themselves.

Neither did petitioner present as witnesses the affiants of these Affidavits or Memoranda submitted to the
court. Basic is the rule that, while affidavits may be considered as public documents if they are
acknowledged before a notary public, these Affidavits are still classified as hearsay evidence. The reason for
this rule is that they are not generally prepared by the affiant, but by another one who uses his or her own
language in writing the affiant's statements, parts of which may thus be either omitted or misunderstood by
the one writing them. Moreover, the adverse party is deprived of the opportunity to cross-examine the
affiants. For this reason, affidavits are generally rejected for being hearsay, unless the affiants themselves
are placed on the witness stand to testify thereon.143(Citations omitted)

Notably, the Sandiganbayan's evaluation of the evidence presented by petitioner was cursory. Its main
reason for granting the Motion to Dismiss on Demurrer to Evidence was that there was no evidence to
consider due to petitioner's failure to file its Formal Offer of Evidence. It brushed off the totality of evidence
on which petitioner built its case.

Even assuming that no documentary evidence was properly offered, this court finds it clear from the second
assailed Resolution that the Sandiganbayan did not even consider other evidence presented by petitioner
during the 19 years of trial. The Sandiganbayan erred in ignoring petitioner's testimonial evidence without
any basis or justification. Numerous exhibits were offered as part of the testimonies of petitioner's
witnesses.

Petitioner presented both testimonial and documentary evidence that tended to establish a presumption that
respondents acquired ill-gotten wealth during respondent Fe Roa Gimenez's incumbency as public officer and
which total amount or value was manifestly out of proportion to her and her husband's salaries and to their
other lawful income or properties.

Petitioner presented five (5) witnesses, two (2) of which were Atty. Tereso Javier and Director Danilo R.V.
Daniel, both from the PCGG:

Petitioner presented as witnesses Atty. Tereso Javier, then Head of the Sequestered Assets Department of
PCGG, and Danilo R.V. Daniel, then Director of the Research and Development Department of PCGG, who
testified on the bank accounts and businesses owned and/ or under the control of spouses Gimenezes.144 cha nrob leslaw

Several exhibits excluded by the Sandiganbayan were offered as part of petitioner's testimonial evidence:

1) Exhibit "KK"145 was offered "for the purpose of proving the assets or properties of the spouses Ignacio B.
Gimenez and Fe Roa Gimenez, and as part of the testimony of Tereso Javier."146 chanrob lesvi rtua llawli bra ry

2) Exhibits "KK-1" to "KK-12"147 inclusive of sub-markings, were offered "for the purpose of proving the real
properties acquired by the spouses Ignacio B. Gimenez and Fe Roa Gimenez, and as part of the testimony of
Tereso Javier."148chan roble svirtual lawlib rary

3) Exhibits "KK-15," "KK-18," "KK-20," "KK-27," "KK-30," "KK-32" to "KK-38" and "KK-40"149 were offered
"for the purpose of proving the corporations in which Ignacio B. Gimenez has interest, and as part of the
testimony of Tereso Javier."150 chan roble svirtual lawlib rary

4) Exhibit "KK-45"151 was offered "for the purpose of proving that the PCGG conducted an investigation of
New City Builders, Inc., Transnational Construction Corporation, and OTO Construction and Development
Corporation in relation to Ignacio B. Gimenez and Roberto O. Olanday, and as part of the testimony of
Tereso Javier."152chan roble svirtual lawlib rary

5) Exhibits "KK-48" to "KK-50"153 were offered "for the purpose of proving that the PCGG formally filed
notices of lis pendens with the Registers of Deeds of Taytay, Rizal, Lucena City, Quezon and San Fabian,
Pangasinan over the properties mentioned in said notices in connection with Civil Case No. [0]007 pending
with the Sandiganbayan, and as part of the testimony of Tereso Javier."154 chan roble svirtuallaw lib rary

6) Exhibits "KK-51" to "KK-52"155 and their sub-markings were offered "for the purpose of proving that the
PCGG sequestered the shares of stock in Allied Banking Corporation and Guaranteed Education, Inc. as
stated in the said writ/letter of sequestration, and as part of the testimony of Tereso Javier."156 chan roblesv irt uallawl ibrary

7) Exhibits "NN" to "QQ"157 and their sub-markings were offered "for the purpose of proving that the PCGG
formally requested the Central Bank to freeze the bank accounts of the spouses Igancio [sic] B. Gimenez
and Fe Roa Gimenez and that the Central Bank, acting on said request, issued a memorandum to all
commercial banks relative thereto. They are also being offered as part of the testimony of Tereso
Javier."158 chan roble svirtuallaw lib rary

8) Exhibits "RR" to "RR-23"159 were offered "for the purpose of proving that Dominador Pangilinan, former
Acting President and President of Traders Royal Bank, executed an affidavit on July 24, 1987 wherein he
mentioned Malacanang trust accounts maintained with the Traders Royal Bank the balance of which was
very high, approximately 150-175 million pesos, as indicated in the monthly statements attached to his
affidavit. They are also being offered as part of the testimony of Danilo R.V. Daniel."160 chan roble svirtual lawlib rary

9) Exhibits "SS" to "SS-29"161 were offered "for the purpose of proving that Apolinario K. Medina, Executive
Vice President of Traders Royal Bank, executed an Affidavit on July 23, 1987 wherein he mentioned about
certain numbered (confidential) trust accounts maintained with the Traders Royal Bank, the deposits to
which 'were so substantial in amount that (he) suspected that they had been made by President Marcos or
his family. They are also being offered as part of the testimony of Danilo R.V. Daniel."162 chanrob lesvi rtua llawli bra ry

10) Exhibits "TT" to "TT-3"163 were offered "for the purpose of proving that Director Danilo R.V. Daniel of the
Research and Development Department of the PCGG conducted an investigation on the ill-gotten wealth of
the spouses Ignacio and Fe Roa Gimenez and found that from 1977 to 1982, the total sum of
P75,090,306.42 was withdrawn from the account No. 128 (A/C 76-128) in favor of I.B Gimenez, I.B.
Gimenez Securities and Fe Roa Gimenez. They are also being offered as part of the testimony of Director
Danilo R.V. Daniel."164 chanrob leslaw

The court cannot arbitrarily disregard evidence especially when resolving a demurrer to evidence which tests
the sufficiency of the plaintiff's evidence.

The difference between the admissibility of evidence and the determination of its probative weight is
canonical.165 chanrob lesvi rtua llawlib ra ry

Admissibility of evidence refers to the question of whether or not the circumstance (or evidence) is to [be]
considered at all. On the other hand, the probative value of evidence refers to the question of whether or
not it proves an issue. Thus, a letter may be offered in evidence and admitted as such but its evidentiary
weight depends upon the observance of the rules on evidence. Accordingly, the author of the letter should
be presented as witness to provide the other party to the litigation the opportunity to question him on the
contents of the letter. Being mere hearsay evidence, failure to present the author of the letter renders its
contents suspect. As earlier stated, hearsay evidence, whether objected to or not, has no probative
value.166 (Citations omitted)

The Sandiganbayan should have considered Atienza v. Board of Medicine, et al.167 where this court held that
it is better to admit and consider evidence for determination of its probative value than to outright reject it
based on very rigid and technical grounds.168 chan roble svirtual lawlib rary

Although trial courts are enjoined to observe strict enforcement of the rules of evidence, in connection with
evidence which may appear to be of doubtful relevancy, incompetency, or admissibility, we have held
that:ChanRoblesVi rtua lawlib rary

[I]t is the safest policy to be liberal, not rejecting them on doubtful or technical grounds, but admitting them
unless plainly irrelevant, immaterial or incompetent, for the reason that their rejection places them beyond
the consideration of the court, if they are thereafter found relevant or competent; on the other hand, their
admission, if they turn out later to be irrelevant or incompetent, can easily be remedied by completely
discarding them or ignoring them.169 (Emphasis supplied, citations omitted)

A liberal application of the Rules is in line with the state's policy to recover ill-gotten wealth. In case of
doubt, courts should proceed with caution in granting a motion to dismiss based on demurrer to evidence.
An order granting demurrer to evidence is a judgment on the merits.170 This is because while a demurrer "is
an aid or instrument for the expeditious termination of an action,"171 it specifically "pertains to the merits of
the case."172 chanroblesv irt uallawl ibra ry

In Cabreza, Jr., et al. v. Cabreza,173 this court defined a judgment rendered on the merits:

A judgment may be considered as one rendered on the merits "when it determines the rights and liabilities
of the parties based on the disclosed facts, irrespective of formal, technical or dilatory objections"; or when
the judgment is rendered "after a determination of which party is right, as distinguished from a judgment
rendered upon some preliminary or formal or merely technical point."174 (Citations omitted)

To reiterate, "[d]emurrer to evidence authorizes a judgment on the merits of the case without the defendant
having to submit evidence on his [or her] part, as he [or she] would ordinarily have to do, if plaintiff's
evidence shows that he [or she] is not entitled to the relief sought."175 The order of dismissal must be
clearly supported by facts and law since an order granting demurrer is a judgment on the merits:

As it is settled that an order dismissing a case for insufficient evidence is a judgment on the merits, it is
imperative that it be a reasoned decision clearly and distinctly stating therein the facts and the law on which
it is based.176 (Citation omitted)

To erroneously grant a dismissal simply based on the delay to formally offer documentary evidence
essentially deprives one party of due process. chanRoblesvi rt ualLaw lib rary
 IV

Respondents did not fail to specifically deny material averments in the Complaint.

Under Rule 8, Section 10 of the Rules of Court, the "defendant must specify each material allegation of fact
the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters
upon which he relies to support his denial."177 There are three modes of specific denial provided for under
the Rules:

1) by specifying each material allegation of the fact in the complaint, the truth of which the defendant does
not admit, and whenever practicable, setting forth the substance of the matters which he will rely upon to
support his denial; (2) by specifying so much of an averment in the complaint as is true and material and
denying only the remainder; (3) by stating that the defendant is without knowledge or information sufficient
to form a belief as to the truth of a material averment in the complaint, which has the effect of a denial.178 chan robles law

In paragraph 14 of the Complaint, the PCGG, through the Office of the Solicitor General, averred that:

14. Defendant Fe Roa Gimenez, by herself and/or in unlawful concert with Defendants Ferdinand E. Marcos
and Imelda R. Marcos, taking undue advantage of her position, influence and connection and with grave
abuse of power and authority, in order to prevent disclosure and recovery of assets illegally obtained: Cha nRobles Vi rtua lawlib rary

(a) actively participated in the unlawful transfer of millions of dollars of government funds into several
accounts in her name in foreign countries;

(b) disbursed such funds from her various personal accounts for Defendants' own use[,] benefit and
enrichment;

(c) acted as conduit of the Defendants Ferdinand E. Marcos and Imelda R. Marcos in purchasing the New
York properties, particularly, the Crown Building, Herald Center, 40 Wall Street, 200 Wall Street, Lindenmere
Estate and expensive works of arts;179

In their Answer, respondents claimed that;

9. Defendants Spouses Gimenez and Fe Roa specifically deny the allegations contained in paragraphs 14(a),
14(b) and 14(c), the truth being that defendant Fe Roa never took advantage of her position or alleged
connection and influence to allegedly prevent disclosure and recovery of alleged illegally obtained assets, in
the manner alleged in said paragraphs.180 chanroble svirtual lawlib rary

Similarly, the PCGG made material allegations in paragraph 16 of the Complaint:

16. Defendant Ignacio B. Gimenez, taking undue advantage of his relationship, influence, and connection, by
himself and/or in unlawful concert and active collaboration with Defendants Ferdinand E. Marcos and Imelda
R. Marcos, for the purpose of mutually enriching themselves and preventing the disclosure and recovery of
assets illegally obtained, among others:ChanRobles Vi rtua lawlib rary

(a) acted as the dummy, nominee or agent of Defendants Ferdinand E. Marcos and Imelda R. Marcos, in
several corporations such as, the Allied Banking Corporation, Acoje Mining Corporation, Baguio Gold Mining,
Multi National Resources, Philippine Overseas, Inc. and Pioneer Natural Resources;

(b) unlawfully obtained, through corporations organized by them such as the the [sic] New City Builders,
Inc. (NCBI), multimillion peso contracts with the government for the construction of government buildings,
such as the University of Life Sports Complex and Dining Hall as well as projects of the National Manpower
Corporation, Human Settlements, GSIS, and Maharlika Livelihood, to the gross and manifest disadvantage
to Plaintiff and the Filipino people.

(c) in furtherance of the above stated illegal purposes, organized several establishments engaged in food,
mining and other businesses such as the Transnational Construction Corporation, Total Systems Technology,
Inc., Pyro Control Technology Corporation, Asian Alliance, Inc., A & T Development Corporation, RBO Agro
Forestry Farm Development Corporation, Bathala Coal Mining Corporation, Coal Basis Mining Corporation,
Titan Coal Mining Corporation, GEI Guaranteed Education, Inc., and I.B. Gimenez Securities, Inc.181

To which respondents specifically denied through the following paragraph:

11. Defendants Spouses Gimenez and Fe Roa specifically deny the allegations contained in paragraphs 16,
16(a), 16(b) and 16(c) that defendant Gimenez allegedly took advantage of his alleged relationship,
influence and connection, and that by himself or in alleged unlawful concert with defendants Marcos and
Imelda, for the alleged purpose of enriching themselves and preventing the discovery of alleged illegally
obtained assets: (1) allegedly acted as dummy, nominee or agent of defendants Marcos and Imelda; (2)
allegedly obtained multi-million peso projects unlawfully; and (3) allegedly organized several
establishments, the truth being: (1) that defendant Gimenez never acted as dummy, nominee or agent of
defendants Marcos and Imelda; (2) that defendant Gimen[e]z never once obtained any contract unlawfully;
and (3) that defendant Gimenez is a legitimate businessman and organized business establishments legally
and as he saw fit, all in accordance with his own plans and for his own purposes.182 chan roble sla w

In Aquintey v. Spouses Tibong,183 this court held that using "specifically" in a general denial does not
automatically convert that general denial to a specific one.184 The denial in the answer must be so definite as
to what is admitted and what is denied:

A denial is not made specific simply because it is so qualified by the defendant. A general denial does not
become specific by the use of the word "specifically." When matters of whether the defendant alleges having
no knowledge or information sufficient to form a belief are plainly and necessarily within the defendant's
knowledge, an alleged "ignorance or lack of information" will not be considered as a specific denial. Section
11, Rule 8 of the Rules also provides that material averments in the complaint other than those as to the
amount of unliquidated damages shall be deemed admitted when not specifically denied. Thus, the answer
should be so definite and certain in its allegations that the pleader s adversary should not be left in doubt as
to what is admitted, what is denied, and what is covered by denials of knowledge as sufficient to form a
belief.185 (Emphasis supplied, citations omitted)

However, the allegations in the pleadings "must be contextualized and interpreted in relation to the rest of
the statements in the pleading."186 The denials in respondents' Answer comply with the modes provided for
under the Rules. We have held that the purpose of requiring specific denials from the defendant is to make
the defendant disclose the "matters alleged in the complaint which he [or she] succinctly intends to disprove
at the trial, together with the matter which 'he [or she] relied upon to support the denial."187The denials
proffered by respondents sufficiently disclosed the matters they wished to disprove and those they would
rely upon in making their denials.

To summarize, the Sandiganbayan erred in granting the Motion to Dismiss on demurrer to evidence. It erred
in making a sweeping declaration on the probative value of the documentary evidence offered by petitioner
and in excluding other evidence offered during trial without full evaluation based on reasons grounded in law
and/or jurisprudence. cha nRoblesv irt ual Lawlib rary

The third part of Rule 33, Section 1 of the Rules of Court provides that "[i]f the motion [to dismiss] is
granted but on appeal the order of dismissal is reversed [the movant] shall be deemed to have waived the
right to present evidence." As this court held:

[I]f a demurrer to evidence is granted but on appeal the order of dismissal is reversed, the movant shall be
deemed to have waived the right to present evidence. The movant who presents a demurrer to the plaintiff's
evidence retains the right to present their own evidence, if the trial court disagrees with them; if the trial
court agrees with them, but on appeal, the appellate court disagrees with both of them and reverses the
dismissal order, the defendants lose the right to present their own evidence. The appellate court shall, in
addition, resolve the case and render judgment on the merits, inasmuch as a demurrer aims to discourage
prolonged litigations.188 (Citations omitted)

This procedure, however, does not apply.

In this case, we principally nullify the assailed Resolutions that denied the admission of the Formal Offer of
Evidence. It only follows that the Order granting demurrer should be denied. This is not the situation
contemplated in Rule 33, Section 1.189 Respondents were not able to even comment on the Formal Offer of
Evidence. Due process now requires that we remand the case to the Sandiganbayan. Respondents may, at
their option and through proper motion, submit their Comment. The Sandiganbayan should then rule on the
admissibility of the documentary and object evidence covered by the Formal Offer submitted by petitioner.
Respondents then may avail themselves of any remedy thereafter allowed by the Rules.

WHEREFORE, the Petition is GRANTED. The assailed Resolutions dated May 25, 2006 and September 13,
2006 of the Sandiganbayan Fourth Division in Civil Case No. 0007 are REVERSED and SET ASIDE. The
case is remanded to the Sandiganbayan for further proceedings with due and deliberate dispatch in
accordance with this Decision.

SO ORDERED. cralawlawlibra ry