PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODITO DAGANIO, accused-appellant. G.R. No. 137385.

January 23, 2002 Accused-appellant Rodito Daganio, Sr., was charged with rape by his minor daughter, Virgie Daganio. The Information against him reads: That on or about the 6th day of September 1994, at Sapad, Lanao del Norte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and feloniously, by means of force, violence and intimidation, to wit: by then and there threatening to kill one VIRGIE DAGANIO if she will resist and report to her mother accuseds criminal designs, and thereafter lie with and have carnal knowledge of said VIRGIE DAGANIO, his 11 YEAR OLD daughter, against her will and consent. CONTRARY to and in VIOLATION of Article 335 of the Revised Penal Code. When arraigned, the accused-appellant entered a plea of not guilty. Trial on the merits followed. The prosecution evidence came chiefly from the victim, Virgie Daganio, the victims mother, Laureta Daganio, and the examining physician, Dr. William Canoy. The victim testified that her father (accused-appellant) raped her several times in their house. Her first defilement was in the month of December, but she could no longer recall what year it was. The second rape took place in the evening of September 6, 1994. She was then 11 years old. That night, her mother (Laureta) was in Pikalawag, Lanao del Norte. The victim was playing with her younger siblings when the accusedappellant told her to go inside the house. She obeyed him. Inside their house, the accused-appellant first placed his finger in her vagina because it was too small. Next, he inserted his penis. Half of the penis penetrated her. After the sexual assault, he warned her not to tell anyone about the rape or he would cut her neck. Despite the threat, the victim related her harrowing experience to her mother, Laureta Daganio. The victim claimed that even before she was raped by the accused-appellant, her parents would quarrel a lot because the accused-appellant was always drunk. Sometimes her parents would fight because the accused-appellant touched her. There were also instances when the accused-appellant would hit Laureta with fist blows during their heated arguments.i6 Laureta Daganio testified that the victim was eleven years old at the time the accused-appellant raped her. She further claimed that accused-appellant also raped their other daughter, Rita Daganio, when the latter was 15 years old. Laureta forgave the accused-appellant then. However, when she learned of the similar plight of the victim in the hands of the accused-appellant, she reported the incident to the authorities and assisted the victim in filing the complaint for rape against the accused-appellant.ii7 Dr. William Canoy testified that he conducted a medical examination on the victim on September 15, 1994. There were no fresh wounds in the vagina, although he found edema (slight swelling emission of the skin) around the victims labia majora and healed lacerations in the hymen at 6, 7, 1 and 8 oclock positions. He opined that the edema could have been caused by hard or blunt objects or by a mans penis.iii8 The accused-appellant denied the accusations of the victim. He claimed that on September 6, 1994, he was ill so he stayed in bed the whole day. When asked if he sexually molested the victim on said date, he replied that he did not know if he did because of his fever. He declared that he loves Laureta and that their relationship before September 6, 1994 was harmonious. He alleged that he never quarreled with her. He claimed he did not know why she filed the rape case against him. After trial, the court a quo rendered its judgment,iv10 finding the accused-appellant guilty as charged. He was sentenced to suffer the supreme penalty of death and ordered to indemnify the victim in the amount of P50,000.00. Hence, the automatic review of the case. The accused-appellant contends that:

I. II.

THE COURT A QUO ERRED IN GIVING CREDENCE TO THE TESTIMONY OF VERGIE (sic) DAGANIO. THE COURT A QUO ERRED IN CONVICTING THE ACCUSED (APPELLANT) NOTWITHSTANDING THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

We affirm the assailed judgment. The accused-appellant claims that the prosecution propounded leading questions on the victim. He asserts that had the trial court sustained the timely objections of his counsel, the victim would not have been able to establish the rape. We are not persuaded. It is true that leading questions are generally not allowed and have little probative value. However, Section 10, Rule 132 of the Rules of Courtv11 provides: Sec. 10. Leading and misleading questions. - A question which suggests to the witness the answer which the examining party desires is a leading question. It is not allowed, except: (c) When there is difficulty in getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf mute. In the case at bar, the victim was twelve (12) years old when she testified in court. When most children her age were already in Grade VI of elementary education, she was only in Grade III. We can also glean from her testimony that she could not grasp the legal concept of rape. Thus, the trial judge correctly allowed the prosecutor to ask leading questions to ferret out the truth. The trend in procedural law is to give wide latitude to the courts in exercising control over the questioning of a child witness. The reasons are spelled out in our Rule on Examination of a Child Witness,vi12 which took effect on December 15, 2000, namely, (1) to facilitate the ascertainment of the truth, (2) to ensure that questions are stated in a form appropriate to the developmental level of the child, (3) to protect children from harassment or undue embarrassment, and (4) avoid waste of time. Leading questions in all stages of examination of a child are allowed if the same will further the interests of justice. The totality of the evidence presented shows beyond reasonable doubt that the accused-appellant raped the victim on September 6, 1994. During the cross-examination, the victim gave a detailed and candid account of the rape incident. She testified as follows:vii13 (ATTY. GUBAT): Q: You said that your father used his fingers, how did your father used (sic) his fingers in raping you?

(VIRGIE): A: Q: A: Q: A: Q: He placed his fingers and his penis into my vagina. And your fathers fingers and penis were entrusted (sic) to your vagina at the same time is that right? A little. What do you mean by a little? Its half. What do you mean by half?

A: Q: A: Q: A: Q: A: Q: A:

Half of the penis. You said your father used his fingers, how many fingers were used? Only one. Which of the fingers? In the left hand. Which of the fingers in the left hand? The middle finger. Have you seen the penis of your father? Yes, sir. (emphases ours)

The accused-appellant points out that Dr. William Canoy did not find fresh wounds on the genitalia of the victim. Allegedly, the absence of said wounds creates a doubt on her claim that she was raped on September 6, 1994. We disagree. The records clearly show that accused-appellant had carnal knowledge of the victim. Dr. Canoy categorically stated that he found swelling in the genitalia of the victim that could have been caused by a male organ. The medical findings of the physician also showed that she had lacerations in her vagina at 6, 7, 1 and 8 oclock positions.viii14 Said lacerations, whether healed or fresh, are the best physical evidence of forcible defloration.ix15 To discredit the victim, the accused-appellant claims it was easy for the victim to shout and ask for help as her siblings were in the vicinity when the rape took place. She did not. Thus, he submits that her accusations do not deserve credit. The allegation lacks merit. A rape victims testimony is entitled to greater weight when she accuses a close relative of having raped her.x16 Indeed, a young girl would not ordinarily file a complaint against anybody, much less her own father, if it were not true.xi17 Thus, the victims revelation that she had been raped, coupled with her voluntary submission to medical examination and willingness to undergo public trial where she could be compelled to give out details on an assault to her dignity cannot be dismissed as mere concoction.xii18 We also take judicial notice, and it can be considered of public knowledge, that the scene of the rape is not always or necessarily isolated or secluded. Lust is no respecter of time or place.xiii19 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 her natural instinct is to protect her honor. More so, where her charges could mean the death of her own father, as in this case.xiv20 Undoubtedly, the accused-appellant was correctly found guilty of raping his daughter. Article 335 of the Revised Penal Code, as amended by Section 11 of R.A. No. 7659, reads: The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. when the victim is under eighteen (18) years of age and the offender is a parent x x x . We have always stressed the rule that the minority of the victim and her relationship to the accused must be duly alleged and proved to justify the imposition of the death penalty.xv21 In some cases,xvi22 we did not mete out the death penalty

for failure of the prosecution to present the minors birth certificate or for non-presentation of independent evidence that would prove the victims age. In the case at bar, the information alleged that the victim was then eleven (11) years old. This fact was established through the testimony of the victims own mother, Laureta Daganio, and admitted by the defense at the trial that the presentation of the victims Certificate of Live Birth was dispensed with at the instance of the defense counsel.xvii23 Being the victims mother, Laureta Daganio has personal knowledge of the age of the victim. Thus, we fully agree with the trial court that the minority of the victim was duly established. We do not doubt her because there was no showing that she was motivated by ill feelings to accuse her own husband of a grievous offense. In the case of People vs. Dela Cruz,xviii24 this Court has also relied on the testimony of the victims mother as to the minority of her daughters and imposed the death penalty on the accused. We held: In the case at bar, however, the prosecution proved the minority age of the victims beyond reasonable doubt. Delia, the victims mother, categorically testified in the hearing of October 9, 1996, that her daughters were both fourteen (14) years of age at the time of the rape incidents complained of. Thus: xxx xxx xxx

There is no reason to doubt Delia's testimony. As a mother, she has personal knowledge of the ages of her children. Her testimony was never challenged by the accused who could have presented the victims birth certificates. Delias testimony stood unrebutted by any other evidence. To be sure, this is not the first time that the Court is relying on the testimony of the victims mother to establish the minority age of the victim. In People vs. Balgos, where the rape victim was six (6) years of age, we relied on the testimony of the victims mother to prove the victims age. Reposing trust on the testimony of the victims mother, we imposed the death penalty on the accused-appellant. Stare decisis et non quieta movere.xix25 The doctrine leaves us no choice but to apply the full force of the law and impose the supreme penalty of death on the accused-appellant. As in the case of Dela Cruz, supra, we have no reason to doubt the sincerity of the victims mother when she told the trial court that her daughter was only eleven (11) years old when the accused-appellant raped her. We note that the trial court awarded civil indemnity to the victim in the amount of P50,000.00. The present rule is to award civil indemnity in the amount of at least P75,000.00.00 as the rape was qualified by any of the circumstances under which the death penalty is authorized under R.A. No. 7659.xx26 Further, the victim is entitled to moral damages, in the amount of P50,000.00 and exemplary damages, in the amount of P25,000.00. In rape cases, moral damages may be awarded to the victim in the criminal proceeding in such amount as the Court deems just, without the need for pleading or proof of the basis thereof. The fact that the complainant has suffered the scars of mental, physical and psychological trauma which constitute the basis for moral damages are too obvious to still require the recital thereof at the trial by the victim, since the Court itself even assume and acknowledge such agony on her part as a gauge of her credibility.xxi27 Exemplary damages, on the other hand, may be imposed in the case of incestuous rape to deter other fathers with perverse tendency or aberrant sexual behavior from sexually abusing their own daughters.xxii28 Four (4) members of the Court maintain their position that R.A. No. 7659, insofar as it prescribes the death penalty, is unconstitutional. Nevertheless, they submit to the ruling of the Court, by a majority vote, that the law is constitutional and that the death penalty should be imposed accordingly. IN VIEW WHEREOF, the Decision of the Regional Trial Court of Kapatagan, Lanao Del Norte, (Branch 21), in Criminal Case No. 21-197, sentencing the accused-appellant, RODITO DAGANIO, to death is AFFIRMED. The civil indemnity in the amount of P50,000.00 is modified and increased to P75,000.00. In addition, the accused-appellant is ordered to pay the amount of P50,000.00 as moral damages, and P25,000.00 as exemplary damages. Pursuant to Section 25 of R.A. No. 7659, amending Section 83 of the Revised Penal Code, upon finality of this Decision, let the records of this case be forthwith forwarded to the Office of the President for possible exercise of pardoning power.

PEOPLE V. TENOSO At bench is an appeal from the March 19, 2009 Decision of the Court of Appeals1 affirming with modification the February 7, 2007 Decision2 of the Regional Trial Court, Tayug, Pangasinan, Branch 51. The RTC convicted the accused of the crime of Murder and sentenced both of them to suffer the penalty of reclusion perpetua and to indemnify, in solidum, the heirs of the victim in the liquidated sum of P300,000.00 as stipulated, and to pay the costs.3 In addition to what the RTC had imposed, the Court of Appeals ordered the accused to pay the heirs of the victim the amount of P50,000.00 as moral damages. Accused Albert Teoso and Edgardo Cocotan were charged with the crime of Murder.4 The Information5 indicting them reads: That on or about March 20, 2004, in the morning, along Ylarde and Zamora St., municipality of San Nicolas, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, armed and with the use of unlicensed firearm with treachery and evident premeditation, conspiring, confederating and helping one another, did then and there willfully, unlawfully and feloniously shoot ROSITO SAMBRANO @ Jongjong at his back which caused his death, to the damage and prejudice of the heirs of said ROSITO SAMBRANO @ JONGJONG. CONTRARY to Article 248 of the Revised Penal Code in relation to Republic Act 8294. The evidence for the prosecution showed that in the morning of March 20, 2004, Rosito Sambrano, also known as Jongjong, was asked by Rebecca Saldivar to bring her 6-year-old son, Leoncio Saldivar IV, to Barangay Siblot, San Nicolas, Pangasinan; that Jongjong and Leoncio rode a motorcycle with Leoncio seated in front of Jongjong; that when they were near the public market, a shot was heard and they fell; that Albert Teoso alias Paking and Edgardo Cocotan alias Paot approached them and held Jongjong by his two arms; that they then mauled him and, later, shot him; and that thereafter, Leoncio reported to his mother saying, Mama, Kuya Jongjong (is) already dead. He was killed by Kuya Paot.6 In his defense, accused Teoso admitted that he was in the vicinity when the shooting occurred, but denied any participation therein. He claimed that on that day, he and Paot were summoned by Mayor Christopher Jones Rodrigo to put up a streamer in front of the public market; that at the market, he asked Paot to get a ladder from a fire station about 40 meters away; that later, he heard shouts and saw people running; that he went near the place of the commotion and there he saw Paot fighting with someone he did not know; that the two were grappling for a gun until he heard an explosion followed by successive blasts; that when the two separated, he saw a gun on the pavement, picked it up, boarded a tricycle, and went home; and that he was brought to the police station where he surrendered the gun.7 On his part, Cocotan asserted that he did not kill Jong Sambrano; that he was hired as a personal driver and security of then Mayor Rodrigo; that at that time, he and Teoso were asked to hang a streamer at the tricycle terminal; that while on his way to get a ladder from a nearby fire station, a motorcycle driven by Jongjong stopped near him; that they then stared at each other; that he sensed that Jongjong was about to draw a gun from his waistline; that upon seeing this, he immediately held Jongjongs waist causing the latter to fall down from his motorcycle; that as Jongjong attempted to get his gun, he got hold of its nozzle; that when Jongjong pulled the trigger, the bullet hit him on his left toe; and that, thereafter, he heard a shot from behind him and then they got separated from each other.8 The trial court gave weight to the evidence of the prosecution over that of the defense, and convicted the accused of the crime of Murder in its February 7, 2007 Decision.9 Aggrieved, the accused appealed the said decision to the Court of Appeals. In the Appellants Brief,10 the accused prayed for their exoneration anchored on the following: ASSIGNMENT OF ERRORS

THE COURT A QUO GRAVELY ERRED IN FINDING ACCUSEDAPPELLANTS GUILTY DESPITE THE PROSECUTIONS FAILURE TO PROVE THEIR GUILT BEYOND REASONABLE DOUBT. THE COURT A QUO GRAVELY ERRED IN DISREGARDING THE VERSION OF THE ACCUSEDAPPELLANTS AND INSTEAD RELYING HEAVILY ON THE INCONSISTENT TESTIMONIES OF THE PROSECUTION WITNESSES.

II

III

THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT ALBERT TEOSO NOTWITHSTANDING THE DUBIOUSNESS OF HIS IDENTIFICATION.

IV

THE COURT A QUO GRAVELY ERRED IN CONSIDERING THE ATTENDANCE OF QUALIFYING CIRCUMSTANCES OF TREACHERY AND EVIDENT PREMEDITATION.

THE COURT A QUO GRAVELY ERRED IN FINDING THE PRESENCE OF THE AGGRAVATING CIRCUMSTANCE OF USE OF UNLICENSED FIREARM.

VI

THE COURT A QUO GRAVELY ERRED IN FINDING THAT ACCUSED-APPELLANTS CONSPIRED TO COMMIT THE OFFENSE CHARGED.

VII

THE COURT A QUO GRAVELY ERRED IN DISREGARDING THE RESULT OF THE PARAFFIN TEST CONDUCTED ON ACCUSED-APPELLANT ALBERT TEOSO.

VIII

THE COURT A QUO GRAVELY ERRED IN DISREGARDING THE VOLUNTARY SURRENDER OF THE FIREARM BY ACCUSED-APPELLANT ALBERT TEOSO.11

As earlier stated, on March 19, 2009, the Court of Appeals rendered the assailed Decision12 affirming with modification the RTC Decision. It wrote: We find the appeal bereft of merit. In the main, accused-appellants anchor their arguments on the credibility of the prosecutions witnesses whose testimonies were replete with discrepancies. They assert that the trial court erred in giving credence to the respective eye-witness accounts of Saldivar IV and Torio alleging that the same were laden with inconsistencies and that the identification given was uncertain and vague. They further contend that the out-of-court identification made by Saldivar IV was suggestive and hence, should be disregarded. They also impute error on the part of the trial court in disregarding the results of the paraffin tests on Teoso and failure to present in evidence the firearm allegedly used by them. They contend that the mitigating circumstance should have been appreciated in favor of accused-appellant Teoso. Lastly, they insist that the trial court erred in considering the qualifying circumstances of treachery, evident premeditation and use of unlicensed firearm since the prosecution failed to prove the same.

We are not persuaded. On the issue of credibility of a witness, the well-established rule is that the assessment of credibility of the witness is a matter best assigned to the trial court which had the firsthand opportunity to hear the testimonies of the witnesses and observe their demeanor, conduct and attitude during cross-examination. Such matters cannot be gathered from a mere reading of the transcripts of stenographic notes. Hence, the trial courts findings carry great weight and will be sustained by the appellate court unless the trial court overlooked, misunderstood, or misapplied some facts or circumstances of weight and substance which will alter the assailed decision or affect the outcome of the case. The exception finds no application in the case before Us. In challenging the reliability of the prosecution witnesses, accused-appellants labor on unfounded and tenuous arguments which will find no approval from this Court. As We see it, the eye-witness accounts of Torio and Saldivar IV were clear and unequivocal in pointing to both accused-appellants as the victims attackers on the fateful morning of 20 March 2004. Accused-appellants cannot also harp on the varying statements of the child-witness with respect to whether he was playing or not before they left their house or the fact that the child-witness did not immediately relate his experience to his mother as soon as he saw her. Being collateral matters, these have no bearing on the commission of the crime and will not render his entire testimony unworthy of belief. As previously held by the Supreme Court, the testimony of children of sound mind is likely to be more correct and truthful than that of older persons, so that once established that they have fully understood the character and nature of an oath, their testimony should be given full credence. In the same vein, the perceived contradictions with regard to the estimated distance between the witness and the victim or how far the latter was able to run after the mauling are insignificant details that cannot damage the entirety of Torios testimony. Neither will the disparity on the testimony of each witness with respect to the number of shots heard by them, have an effect on the veracity of their eye-witness accounts considering that they were situated differently from the other. It should be stressed that the same incident, when viewed from different angles or perspectives, may result in different impressions on the part of several witnesses. The circumstances attending the incident may add to the confusion, as in the case at bar, where the quarry attempted to escape and the policemen all made an effort to detain him. Recollection of a particular happening, especially if it is unquiet or even tumultuous, is at best imperfect but not necessarily perjurious. The narration of the same event by different witnesses cannot be expected to be absolutely symmetrical, with all of them agreeing fully on every detail, as if recorded in their minds with computer accuracy.

Anent Saldivar IVs alleged vague description and out-of-court identification of Teoso, suffice it to state that whatever perceived vagueness or irregularity there were in the identification of Teoso had been cured by the subsequent positive identification in court of Teoso not only by Saldivar IV, despite the attempt of the trial judge to mislead the child witness by pointing to another person, but also by witness Torio. Thus, as previously held by the Supreme Court, the inadmissibility of a police line-up identification . . . should not necessarily foreclose the admissibility of an independent in-court identification. Thus, on the face of the categorical and unmistakable identification made by the witnesses for the prosecution, We find that the prosecution was able to establish beyond any tinge of doubt that Teoso and Cocotan were responsible for the death of Sambrano. In the light of their positive identification and the credible accounts of the events leading to the victims demise, their respective defenses of denial, cannot overcome his positive identification by the eyewitnesses. A mere denial, like alibi, is inherently a weak defense and constitutes selfserving negative evidence which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters. This is especially true since We do not find any reason why the Saldivars would involve their 6-year old son in this whole ordeal if not for their earnest effort to attain justice. Also, the seeming nonchalant actuation of Teoso in picking-up the gun after the victim was gunned down and the flight of Cocotan to evade arrest, all the more fortify their guilt for the death of Sambrano. Moreover, the fact

that Teoso was found negative for the presence of gunpowder nitrates will not, by itself, prove his innocence. As held in People v. Manalo, The second assigned error would stress the alleged absence of physical evidence showing that the accused-appellant fired a gun. To this, We need only remark that such circumstance neither proves his innocence as well. In fact, even 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 (People v. Talingdan, 191 SCRA 333 1990; People v. Roallos, 113 SCRA 584 1982). 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 (People v. Rebullar, 188 SCRA 838 1990. Finding the culpability of accused-appellants duly proven beyond reasonable doubt, We find that, among those alleged in the Information, only the qualifying circumstances of treachery was duly proven by the prosecution. An unexpected and sudden attack under circumstances which render the victim unable and unprepared to defend himself by reason of the suddenness and severity of the attack, constitutes alevosia. For treachery or alevosia to be appreciated as a qualifying circumstance, the prosecution must establish the concurrence of two (2) conditions: (a) that at the time of the attack, the victim was not in a position to defend himself; and (b) that the offender consciously adopted the particular means, method or form of attack employed by him. Given the factual milieu of the present case, the prosecution was able to prove that the victim was shot while on board his motorcycle. The attack was undoubtedly swift and sudden which did not afford him any opportunity to defend himself. As the attack was without any forewarning, the victim, after having fallen from his motorcycle, was assaulted by his attackers who acted in concert by restraining his hands to prevent him from retaliating. And even as the victim tried to flee, accused-appellants continued to pursue him even shooting him from behind. Indisputably, the victim was killed with the presence of the qualifying circumstance of treachery. Verily, accused-appellant Teosos claim that he is entitled to the mitigating circumstance of voluntary surrender, has no merit. It should be recalled that Teoso left the public market right after the incident and waited in his house if someone will look for him. It was only after learning that he was indeed being sought after that he called the police not for the purpose of surrendering but only to explain. In fact, when asked if it was his intention to surrender himself when he went to the police station, he denied the same and insisted that he only intended to surrender the firearm. As this Court sees it, Teosos demeanor does not portray the voluntary surrender required under the law since it lacks the intent to unconditionally surrender himself to the authorities either as an acknowledgement of guilt or a desire to save the authorities the trouble and the expense that would necessarily be incurred in searching for and capturing the culprit. Jurisprudence has it that the act of surrender must be spontaneous, accompanied by an acknowledgment of guilt, or an intention to save the authorities the trouble and the expense that search and capture would require. Going to the police station to clear his name does not show any intent of appellant to surrender unconditionally to the authorities. Thus, the dispositive portion of the assailed Court of Appeals Decision reads: WHEREFORE, the foregoing considered, the Appeal is hereby DISMISSED and the assailed Decision AFFIRMED with the MODIFICATION that accused-appellant, in addition to their civil liability, are each ordered to pay the heirs of the victim the amount of Fifty Thousand Pesos (P50,000.00) as moral damages. Apparently not satisfied with the decision, the accused elevated their case to this Court. The accused filed a Manifestation (In Lieu of Supplemental Brief), that they were adopting the Appellants Brief they filed before the Court of Appeals.13 Plaintiff, on the other hand, moved and manifested that it would no longer file any Supplemental Brief and would also adopt its arguments in the Appellees Brief previously filed.14 The Court resolves to deny the appeal.

No reversible error was committed by the Court of Appeals in rendering the well-written March 19, 2009 Decision. In their brief, the accused have capitalized on the supposed inconsistencies in the testimony of prosecution witnesses. They pointed out that Arnold Torio had testified that Teoso @ Paking held Jongjongs right hand while Cocotan @ Paot held the other hand15 and both were punching his head and body. This went on for less than a minute. Thereafter, Teoso, using his right hand, shot Jongjong.16 Immediately, Torio heard two (2) explosions.17 Leoncio Salvador IV, on the other hand, testified that Teoso held Jongjongs left arm while Cocotan held the other arm;18 that they shot Jongjong at the back;19 that Jongjong ran and Cocotan chased him while Teoso shot him at the back; and that four shots were fired.20 The accused enumerated other inconsistencies, to wit: (1) Arnold Torio testified that the mauling took place right in front of him and his driver and the road ahead was clear and empty,21 but he also mentioned that there were many people at the place where the mauling took place since it was a market day;22 (2) He also stated that he saw the mauling incident at a distance of ten (10) meters,23 but on cross-examination, he replied that he was about fifteen (15) meters from where the mauling took place;24 (3) He further testified that after being beaten up, Jongjong was able to run for about ten (10) meters before he stumbled and got shot,25 but later, he said that it was a distance of fifteen (15) meters;26 and (4) Leoncio initially stated that Cocotan shot Jongjong but later he said that it was Teoso who shot Jongjong at the back.27 The Court examined the inconsistencies in the testimonies of the prosecution witnesses but found them too inconsequential to adversely affect their overall integrity. Such minor inconsistencies in the narration of a witness do not detract from its essential credibility as long as it is in its entirety coherent and intrinsically believable. Inaccuracies may in fact suggest that the witness is telling the truth and has not been rehearsed as it is not to be expected that he will be able to remember every single detail of an incident with perfect or total recall.28 In this case, the cited discrepancies as to the distance, the number of shots and which hand was actually used in holding Jongjong were not too critical as to discredit altogether the testimonies of Arnold Tenorio and Leoncio Saldivar IV. These are minor details that cannot destroy the truthfulness of their story. The accused also tried to sway the Court with the inconsistency in the statement of Leoncio Saldivar IV as to who actually shot the victim. The pertinent portions of his testimony read: PROS. BINCE: Q: What happened next after Paking and Paot were holding the hands of Kuya Jong Jong?

WITNESS: A: They shot him at the back.

COURT: Questions from the Court. Q: How would you know the holding, carrying and shooting when according to you immediately upon the fall of that motorcycle you ran four (4) meters away to the basketball court? A: Q: A: Because at first I was by the jeep and they were in front of the jeep. Where is the jeep? Was it beside the motorcycle or to (sic) the basketball court where you were? Near the municipal hall, sir.

Q:

And was that motorcycle that fell also near the municipal hall?

A:

(Witness nodded).

Q: A:

Was that basketball court where you ran to also near the municipal hall? Yes, sir.

Q: A:

What kind of jeep was that? Was it a small owner type jeep which is long? It s a passenger jeep, sir.

Next question.

PROS. BINCE:

Q: A:

You claimed that Kuya Jong was shot. Who shot him? Paot.

COURT:

Q:

With what did Paot shoot?

WITNESS:

A:

I do not know.

COURT:

Q: A:

Was it a gun or a sling shot? A small gun.

Q: A:

Can you demonstrate the length? (Witness demonstrated a length of about six (6) inches.)

Q: A:

Was it made of wood or metal or what? A metal, sir.

PROS. BINCE:

Q: A:

What did Paking do when Paot shoot (sic) Kuya Jong, if any? Kuya Jong ran and he was chased.

Q: A:

Who chased Kuya Jong? Paot.

Q: A:

What about Paking? What did he do, if any? No, it was him who shot at the back.

COURT:

Q: A:

Who shot at the back? Paking.

Q: A:

Whose back did he shoot? Of Kuya Jong.

PROS. BINCE:

Q: A:

So it s now clear that it was Paking who shot Kuya Jong at the back and not Paot? Yes, sir. 29

From the foregoing, the accused argues that there was an inconsistency in the sense that at one point, Leoncio stated that it was Paot (Cocotan) who shot Jongjong. Later, he pointed to Paking (Teoso) as the gunman.

The Court is not persuaded. There is no inconsistency in the statement of Leoncio. It can be gleaned from Leoncio s testimony that Paot initially shot Jongjong. When the latter had the opportunity to stand and run, he was shot from

behind by Paking. This seeming inconsistency only strengthens the story of Leoncio that the two accused took turns in shooting Jongjong.30 It bears stressing too that Leoncio, being a child witness, cannot be expected to provide an accurate answer to every question asked.31

Most importantly, the trial court found Leoncio credible. The assessment by the trial court of his honesty and reliability is worth repeating:

Anent Saldivar IV s alleged vague description and out-of-court identification of Teoso, suffice it to state that whatever perceived vagueness or irregularity there were in the identification of Teoso had been cured by the subsequent positive identification in court of Teoso not only by Saldivar IV, despite the attempt of the trial judge to mislead the child witness by pointing to another person, but also by witness Torio. x x x.32

The Court has considered the defense of denial and alibi put up by the accused,33 but finds them relatively weak and insufficient to overcome the positive and categorical identification of the accused as perpetrators. The rule is that the defense of denial, when unsubstantiated by clear and convincing evidence, is negative and self-serving and merits no weight in law and cannot be given greater evidentiary value than the testimony of credible witnesses who testified on affirmative matters.34 Upon re-examination of the records, the Court is of the considered view that the qualifying circumstance of treachery was duly proven. The elements of treachery are: 1) the employment of means, methods or forms of execution that affords the person attacked no opportunity to defend himself or to retaliate; and 2) that said means, method or forms of execution were deliberately and consciously adopted.35

It was clearly shown that Jongjong was shot while on board his motorcycle. The attack was undoubtedly swift and sudden which did not afford him any opportunity to defend himself. After falling from his motorcycle, he was assaulted by the two accused who also restrained his hands to prevent him from retaliating. When he was able to free himself, they pursued him and then shot him from behind.

The award of civil indemnity is proper. It requires no proof other than the fact of death as a result of the crime and proof of the accused's responsibility therefor. Although jurisprudence fixed the civil indemnity at P50,000.00 only,36 the Court upholds the award of P300,000.00 civil indemnity since the parties had stipulated such amount in the event of a judgment of conviction.37

The award of P50,000.00 as moral damages is also correct. Moral damages are awarded in view of the violent death of a victim. There is no need for any allegation or proof of the emotional sufferings of the heirs. Likewise, the award of exemplary damages is warranted when the commission of the offense is attended by an aggravating circumstance, whether ordinary or qualifying,38 as in this case. Accordingly, the Court awards exemplary damages in the amount of P30,000.0039 to the heirs of the victim.

WHEREFORE, the decretal portion of the March 19, 2009 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02751 is MODIFIED to read as follows:

WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of Murder, the Court hereby sentences both of them to suffer the penalty of reclusion perpetua; to indemnify, jointly and severally, the heirs of Rosito Sambrano in the amount of P300,000.00 as civil indemnity, as stipulated; to pay, jointly and severally, the said heirs the amounts of P50,000.00 as moral damages, P30,000.00 as exemplary damages and the cost of the suit.

Both accused are further ordered to pay legal interest on the civil liabilities imposed until fully paid.

SO ORDERED.

PEOPLE V. RENE SANTOS For allegedly sexually assaulting 5-year-old AAA, Rene Santos was charged with Rape in an Information1 alleging That on or about in the afternoon of between 17th and 23rd of July 1999 in the Barangay of xxx, Municipality of xxx, Province of Pampanga, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, RENE SANTOS, with lewd designs and by means of deceit, force and intimidation, did then and there willfully, unlawfully and feloniously succeeded in having carnal knowledge with AAA, 5 years of age, against her will. Contrary to law. Upon arraignment, appellant pleaded not guilty to the charge.2 Trial thereafter ensued, after which the Regional Trial Court of Macabebe, Pampanga, Branch 55, rendered judgment3 imposing the death penalty thus:

WHEREFORE, on the basis of all the foregoing, the Court finds the accused guilty beyond reasonable doubt of the crime of Rape penalized under Article 335 of the Revised Penal Code, and as a consequence of which, this Court hereby sentences him to suffer the mandatory penalty of death and to indemnify the offended party in the amount of P75,000.00 and to pay the costs of the proceedings.

SO ORDERED.4

Owing to the imposition of the death penalty, the case was elevated to the Court for automatic review. Pursuant, however, to the ruling in People v. Mateo,5 the case was referred to the Court of Appeals for evaluation in a Resolution dated September 7, 2004.6

In his appeal, appellant alleged that

1. THE TRIAL COURT ERRED IN NOT CONSIDERING THE DEFENSE OF THE ACCUSED THAT WOULD EXCULPATE HIM FROM THE CRIME OF RAPE.

2.

THE TRIAL COURT ERRED WHEN IT IMPOSED UPON THE ACCUSED THE MAXIMUM PENALTY OF DEATH.

In its Decision7 dated October 19, 2005, the appellate court affirmed the judgment of conviction and, in addition to the P75,000.00 civil indemnity imposed, ordered appellant to pay P50,000.00 as moral damages and P25,000.00 as exemplary damages.

The prosecution s version of the incident narrates that sometime between July 17 and 23, 1999, AAA was playing at the northern portion of xxx Bridge, xxx, Pampanga, when she was taken by appellant and brought to his house, which is about one kilometer away from AAA s residence. While inside the house, appellant took off the clothes of AAA and had sexual intercourse with her.8 The victim felt pain and her vagina bled.9

After a complaint was lodged with the barangay and the police authorities, AAA was brought to the Jose B. Lingad Memorial Regional Hospital in San Fernando, Pampanga, where she was examined.10 The Medico Legal O.B. Gyne Report indicated multiple superficial healed lacerations.11 The victim, who was already six years old when she testified in court,12 positively identified the appellant during the trial and testified on the affidavit she executed before the police officers of xxx, Pampanga.13

Appellant s version of the incident is one of denial and alibi. He testified that he was the driver of BBB who lived in Barangay xxx, xxx, Pampanga which is a kilometer away from his place in Sulipan.14 Appellant usually leaves his house at 7:00 a.m. and stays at his workplace up to 7:30 p.m. or sometimes even up to 10:00 p.m. when necessary.15

His job was to drive his employer whenever the latter had appointments in Manila.16 When BBB had no appointments, he drove a passenger jeepney plying San Fernando, Pampanga and Malolos, Bulacan, a route which passed Sulipan.17 On July 17, 1999, appellant drove his employer to the Wheels Motor Shop at E. Rodriguez Avenue, Quezon City leaving Apalit at 9:00 a.m. and returning at 8:30 p.m. On July 18, 1999, appellant left his house at 6:00 a.m. arriving at his workplace at 7:30 a.m. and from there he delivered surplus bumpers to Malinta, Manila.18 On July 19, 20, 21 and 22, 1999, appellant plied the San Fernando-Malolos route on board his passenger jeepney.19 On July 23, 1999, appellant went to Makati leaving xxx at 10:00 a.m., returning only at 10:00 p.m.20

On July 30, 1999, between 6:30 to 7:30 a.m.,21 he was sweeping the ground in front of his house when a white car pulled over.22 The vehicle s occupants introduced themselves as police officers and asked him if he was Rene Santos.23 Thereafter, he was taken to the police headquarters for questioning. Once they arrived at the headquarters, he was detained and remained in detention up to the time of his trial.24

We have examined the evidence on record and find no cogent reason to disturb the findings of the trial court and the Court of Appeals. We accord great respect on the findings of the trial court on the credibility of witnesses and their testimonies, for the trial judge observes the behavior and demeanor of the witnesses in court. His evaluation or assessment of the credibility of witnesses and of testimony acquires greater significance in rape cases because from the nature of the offense, the only evidence that can oftentimes be offered to establish the guilt of the accused is the victim s testimony. 25

This credibility given by the trial court to the rape victim is an important aspect of evidence which appellate courts can rely on because of its unique opportunity to observe the witnesses, particularly their demeanor, conduct and attitude during the direct and cross-examination by counsel.26 It is likewise well established that the testimony of a rape victim is generally given full weight and credit, more so, if she is a 5-year-old child as in this case. The revelation of an innocent child whose chastity has been abused deserves full credit, as her willingness to undergo the trouble and the humiliation of a public trial is an eloquent testament to the truth of her complaint. In so testifying, she could only have been impelled to tell the truth, especially in the absence of proof of ill motive.27 The trial court and the Court of Appeals gave credence to the testimony of AAA who was only six years old when she narrated the sordid details of her ravishment, viz:

FISCAL PINEDA Questioning

Q You said you know this Rene Santos, why do you know him? A Because he raped me, sir.

If Rene Santos is inside this courtroom, can you point at him? Q WITNESS Answering Q Yes, sir. A

Can you remember when was that? Yes, sir.

When?

WITNESS Q A Please point at him? There he is, sir. Answering I do not know when, sir.

INTERPRETER Witness pointed to a person inside the courtroom who when asked gave his name as Rene Santos.

FISCAL PINEDA Questioning

Do you recall where? Q Between the period of July 17 to 23, 1999, do you remember where were you? A Yes, sir. Q Q A Where were you then? ... Q In Apalit, Pampanga? A And where is that house? In Sulipan, sir. A In their house, sir.

Yes, sir. Reform the question.

Q You said that this Rene Santos raped you, what particular actuations did he do? A He inserted his penis, sir.

Q A

Where? Here, sir, in my vagina.

INTERPRETER

Witness pointing to her private organ.

Q A

Where did that happen? In their house, sir.

Q A

In what portion of his house? Inside their house, sir.

Q You said that Rene Santos inserted his penis into your vagina, what did you feel? A I felt pain, sir.

Q When he inserted his penis into your vagina did he have any clothings (sic)? A ...

ATTY. VIOLA

Leading, Your Honor.

COURT

FISCAL PINEDA Questioning

COURT Questioning

When he inserted his penis into your vagina, what was his appearance?

Is this Rene Santos inside this courtroom?

WITNESS WITNESS Answering Answering Yes, sir. It was hard, sir. Q Q A What was hard? A His penis, sir. Point to him? There he is, sir.

INTERPRETER

Witness pointed to a person inside the courtroom who when asked gave his name as Rene Santos.28 (Emphasis and italics supplied)

Counsel for the defense attempted, albeit futilely, to impeach the credibility of the victim.29 We have held time and again that testimonies of rape victims who are young and immature, as in this case, deserve full credence considering that no young 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 subject to a public trial if she was not motivated solely by the desire to obtain justice for the wrong committed against her. It is highly improbable for an innocent girl of tender years like the victim, who is very naive to the things of this world, to fabricate a charge so humiliating not only to herself but also to her family. Stated succinctly, it is beyond the mind-set of a six-year old child, like the offended party herein, to fabricate a malicious accusation against appellant if the crime did not truly transpire.30 Verily, when a guileless girl of six credibly declares that she has been raped, she has said all that is necessary to prove the ravishment of her honor.31 Appellant s reliance on the corroboration by his wife of his alibi cannot overturn the clear and categorical declarations of the victim identifying him as the perpetrator of the crime. The corroboration should, furthermore, be received with caution coming as it does from appellant s spouse whose emotional ties and interest in his acquittal cannot be gainsaid. Indeed, it has even been held that some wives are overwhelmed by emotional attachment to their husbands such that they knowingly or otherwise suppress the truth and act as a medium for injustice to preponderate.32 In addition to his defense of alibi, appellant further faults the trial court with acting as the prosecutor and the judge at the same time 33 for allegedly initiating and propounding the questions, short of supplying the desired answer from the witness. 34 The argument is tenuous. As has been pointed out in People v. Guambor:35

The trial judge is accorded a reasonable leeway in putting such questions to witnesses as may be essential to elicit relevant facts to make the record speak the truth. Trial judges in this jurisdiction are judges of both law and the facts, and they would be negligent in the performance of their duties if they permitted a miscarriage of justice as a result of a failure to propound a proper question to a witness which might develop some material bearing upon the outcome. In the exercise of sound discretion, he may put such question to the witness as will enable him to formulate a sound opinion as to the ability and willingness of the witness to tell the truth. A judge may examine or cross-examine a witness. He may propound clarificatory questions to test the credibility of the witness and to extract the truth. He may seek to draw out relevant and material testimony though that testimony may tend to support or rebut the position taken by one or the other party. It cannot be taken against him if the clarificatory questions he propounds happen to reveal certain truths which tend to destroy the theory of one party. (Emphasis supplied)

The trend in procedural law is to give a wide latitude to the courts in exercising control over the questioning of a child witness.36 Under Sections 19 to 21 of the Rules on Examination of a Child Witness,37 child witnesses may testify in a narrative form and leading questions may be allowed by the trial court in all stages of the examination if the same will further the interest of justice.38 It must be borne in mind that the offended party in this case is a 6-year old minor who was barely five when she was sexually assaulted. As a child of such tender years not yet exposed to the ways of the world, she could not have fully understood the enormity of the bestial act committed on her person. Indeed

Studies show that children, particularly very young children, make the perfect victims. They naturally follow the authority of adults as the socialization process teaches children that adults are to be respected. The child s age and developmental level will govern how much she comprehends about the abuse and therefore how much it affects her. If the child is too young to understand what has happened to her, the effects will be minimized because she has no comprehension of the consequences. Certainly, children have more problems in providing accounts of events because they do not understand everything they experience. They do not have enough life experiences from which to draw upon in making sense of what they see, hear, taste, smell and feel. Moreover, they have a limited vocabulary . With her limited comprehension, the child could not have a perfect way of relating that she had been sexually abused.39 (Emphasis and italics supplied)

The record discloses that the questions propounded by the judge were intended to elicit the truth from the child witness. This perceived undue inquisitiveness of the judge did not unduly harm the substantial rights of the appellant. In fact, it is only to be expected from the judge who, with full consciousness of his responsibilities could not, and should not, easily be satisfied with incompleteness and obscurities in the testimonies of the witness.40

While judges should as much as possible refrain from showing partiality to one party and hostility to another, it does not mean that a trial judge should keep mum throughout the trial and allow parties to ask questions that they desire, on issues which they think are important, when the former are improper and the latter immaterial. If trials are to be expedited, judges must take a leading part therein, by directing counsel to submit evidence on the facts in dispute by asking clarifying questions, and by showing an interest in a fast and fair trial. Judges are not mere referees like those of a boxing bout, only to watch and decide the results of a game; they should have as much interest as counsel in the orderly and expeditious presentation of evidence, calling attention of counsel to points at issue that are overlooked, directing them to ask the question that would elicit the facts on the issues involved, and clarifying ambiguous remarks by witnesses. Unless they take an active part in trials in the above form and manner, and allow counsel to ask questions whether pertinent or impertinent, material or immaterial, the speedy administration of justice which is the aim of the Government and of the people cannot be attained.41

Appellant also invites the Court s attention to what he perceives as uncharacteristic behavior of the victim who, according to him, should be traumatized after undergoing the onslaught of sexual molestation. 42 He insists that it is unnatural for the 6-year old victim to go to school the day following her supposedly shocking experience. He also points out that she was answering not as seriously as one who has been sexually molested. 43

The contention is neither novel nor persuasive. There is no standard form of behavior that can be expected of rape victims after they have been defiled because people react differently to emotional stress.44 Nobody can tell how a victim of sexual aggression is supposed to act or behave after her ordeal.45 Certainly, it is difficult to predict in every instance how a person especially a 6-year old child, as in this case would react to a traumatic experience.46 It is not proper to judge the actions of rape victims, especially children, who have undergone the harrowing experience of being ravished against their will by the norms of behavior expected under such circumstances from mature persons.47 Indeed, the range of emotions shown by rape victims is yet to be captured even by calculus.48 It is thus unrealistic to expect uniform reactions from them.49 In fact, the Court has not laid down any rule on how a rape victim should behave immediately after her ravishment.50

In his attempt to extricate himself from criminal liability, appellant further insinuates that his sons may be the possible perpetrators of the felony saying that it could have been Rene Santos, Jr. or Michael Santos who could have raped the victim considering that AAA and her sister CCC allegedly complained earlier that they were raped by the two brothers.51

If at all, the foregoing suggestion that his sons may have been the malefactors who sexually assaulted the victim and her sister only succeeds in underscoring his moral depravity and his capacity to commit the crime. Only one whose degree of wickedness plumbs the deepest depths of criminal perversity would have no qualms of laying the onus of his guilt even on his own offspring and, worse, blacken the memory of one of them who is already dead in his endeavor to exculpate himself from the consequences of his felonious acts.

Much less convincing is appellant s proposition that ill feelings and ill motives of the victim s mother impelled the filing of the charges against him. Ill-motives become inconsequential where there are affirmative or categorical declarations establishing appellant s accountability for the felony.52 We have, furthermore, observed not a few persons convicted of rape have attributed the charges against them to family feuds, resentment or revenge.53 However, as borne out by a plethora of cases, family resentment, revenge or feuds have never swayed us from giving full credence to the testimony of a complainant for rape, especially a minor who remained steadfast and unyielding throughout the direct and cross-examination that she was sexually abused.54 It would take a certain degree of perversity on the part of a parent, especially a mother, to concoct a false charge of rape and then use her daughter as an instrument to settle her grudge.55

Given the foregoing factual, legal and jurisprudential scenario, we agree with both the trial and appellate courts that the appellant is guilty as charged. He was, likewise, correctly meted the penalty of death because rape committed against a child below seven (7) years old is a dastardly and repulsive crime which merits no less than the imposition of capital punishment under Article 266-B of the Revised Penal Code.56 That AAA was only five years old when she was ravished is clear from her birth certificate.57

However, with the passage of Republic Act No. 9346 entitled An Act Prohibiting The Imposition Of The Death Penalty In The Philippines, the penalty that should be meted is reclusion perpetua, thus:

SEC. 2. In lieu of the death penalty, the following shall be imposed:

(a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or

(b) the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code.

Pursuant to the same law, appellant shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law.

In line with prevailing jurisprudence, the Court affirms the award of P75,000.00 as civil indemnity and P25,000.00 as exemplary damages; and increases the Court of Appeals award of moral damages from P50,000.00 to P75,000.00.58

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. H.C. No. 01424 finding appellant Rene Santos guilty beyond reasonable doubt of the crime of rape and odering him to indemnify the victim the amounts of P75,000.00 as civil indemnity and P25,000.00 as exemplary damages, is AFFIRMED with the MODIFICATION that the award of moral damages is increased to P75,000.00 and that in lieu of the death penalty, appellant Rene Santos is hereby sentenced to suffer the penalty of reclusion perpetua without possibility of parole.

SO ORDERED.

PEOPLE V. UMANITO

In our Resolution dated 26 October 2007, this Court resolved, for the very first time, to apply the then recently promulgated New Rules on DNA Evidence (DNA Rules)1 in a case pending before us this case. We remanded the case to the RTC for reception of DNA evidence in accordance with the terms of said Resolution, and in light of the fact that the impending exercise would be the first application of the procedure, directed Deputy Court Administrator Reuben Dela Cruz to: (a) monitor the manner in which the court a quo carries out the DNA Rules; and (b) assess and submit periodic reports on the implementation of the DNA Rules in the case to the Court. To recall, the instant case involved a charge of rape. The accused Rufino Umanito (Umanito) was found by the Regional Trial Court (RTC) of Bauang, La Union, Branch 67 guilty beyond reasonable doubt of the crime of rape. Umanito was sentenced to suffer the penalty of reclusion perpetua and ordered to indemnify the private complainant in the sum of P50,000.00. On appeal, the Court of Appeals offered the judgment of the trial court. Umanito appealed the decision of the appellate court to this court.

In its 2007 Resolution, the Court acknowledged many incongruent assertions of the prosecution and the defense. 2 At the same time, the alleged 1989 rape of the private complainant, AAA, had resulted in her pregnancy and the birth of a child, a girl hereinafter identified as BBB. In view of that fact, a well as the defense of alibi raised by Umanito, the Court deemed uncovering of whether or not Umanito is the father of BBB greatly determinative of the resolution of the appeal. The Court then observed: x x x With the advance in genetics and the availability of new technology, it can now be determined with reasonable certainty whether appellant is the father of AAA's child. If he is not, his acquittal may be ordained. We have pronounced that if it can be conclusively determined that the accused did not sire the alleged victim's child, this may cast the shadow of reasonable doubt and allow his acquittal on this basis. If he is found not to be the father, the finding will at least weigh heavily in the ultimate decision in this case. Thus, we are directing appellant, AAA and her child to submit themselves to deoxyribonucleic acid (DNA) testing under the aegis of the New Rule on DNA Evidence (the Rules), which took effect on 15 October 2007, subject to guidelines prescribed herein.3 The RTC of Bauang, La Union, Branch 67, presided by Judge Ferdinand A. Fe, upon receiving the Resolution of the Court on 9 November 2007, set the case for hearing on 27 November 20074 to ascertain the feasibility of DNA testing with due regard to the standards set in Sections 4(a), (b), (c) and (e) of the DNA Rules. Both AAA and BBB (now 17 years old) testified during the hearing. They also manifested their willingness to undergo DNA examination to determine whether Umanito is the father of BBB.5 A hearing was conducted on 5 December 2007, where the public prosecutor and the counsel for Umanito manifested their concurrence to the selection of the National Bureau of Investigation (NBI) as the institution that would conduct the DNA testing. The RTC issued an Order on even date directing that biological samples be taken from AAA, BBB and Umanito on 9 January 2008 at the courtroom. The Order likewise enjoined the NBI as follows: In order to protect the integrity of the biological samples, the NBI is enjoined to strictly follow the measures laid down by the Honorable Supreme Court in the instant case to wit: Moreover, the court a quo must ensure that the proper chain of custody in the handling of the samples submitted by the parties is adequately borne in the records, i.e.; that the samples are collected by a neutral third party; that the tested parties are appropriately identified at their sample collection appointments; that the samples are protected with tamper tape at the collection site; that all persons in possession thereof at each stage of testing thoroughly inspected the samples for tampering and explained his role in the custody of the samples and the acts he performed in relation thereto. The DNA test result shall be simultaneously disclosed to the parties in Court. The NBI is, therefore, enjoined not to disclose to the parties in advance the DNA test results. The NBI is further enjoined to observe the confidentiality of the DNA profiles and all results or other information obtained from DNA testing and is hereby ordered to preserve the evidence until such time as the accused has been acquitted or served his sentence.6 Present at the hearing held on 9 January 2008 were AAA, BBB, counsel for Umanito, and two representatives from the NBI. The RTC had previously received a letter from the Officer-in-Charge of the New Bilibid Prisons informing the trial court that Umanito would not be able to attend the hearing without an authority coming from the Supreme Court.7 The parties manifested in court their willingness to the taking of the DNA sample from the accused at his detention center at the New Bilibid Prisons on 8 February 2008.8 The prosecution then presented on the witness stand NBI forensic chemist Mary Ann Aranas, who testified on her qualifications as an expert witness in the field of DNA testing. No objections were posed to her qualifications by the defense. Aranas was accompanied by a laboratory technician of the NBI DNA laboratory who was to assist in the extraction of DNA. DNA samples were thus extracted from AAA and BBB in the presence of Judge Fe, the prosecutor, the counsel for the defense, and DCA De la Cruz. On 8 February 2008, DNA samples were extracted from Umanito at the New Bilibid Prisons by NBI chemist Aranas, as witnessed by Judge Fe, the prosecutor, the defense counsel, DCA De la Cruz, and other personnel of the Court and the New Bilibid Prisons.9

The RTC ordered the NBI to submit the result of the DNA examination within thirty (30) days after the extraction of biological samples of Umanito, and directed its duly authorized representatives to attend a hearing on the admissibility of such DNA evidence scheduled for 10 March 2008. The events of the 28 March 2008 hearing, as well as the subsequent hearing on 29 April 2008, were recounted in the Report dated 19 May 2008 submitted by Judge Fe. We quote therefrom with approval: 2. That as previously scheduled in the order of the trial court on 09 January 2008, the case was set for hearing on the admissibility of the result of the DNA testing. At the hearing, Provincial Prosecutor Maria Nenita A. Opiana, presented Mary Ann T. Aranas, a Forensic Chemist of the National Bureau of Investigation who testified on the examination she conducted, outlining the procedure she adopted and the result thereof. She further declared that using the Powerplex 16 System, Deoxyribonuncleic acid analysis on the Buccal Swabs and Blood stained on FTA paper taken from AAA, BBB, and Rufino Umanito y Millares, to determine whether or not Rufino Umanito y Millares is the biological father of BBB, showed that there is a Complete Match in all of the fifteen (15) loci tested between the alleles of Rufino Umanito y Milalres and BBB; That based on the above findings, there is a 99.9999% probability of paternity that Rufino Umanito y Millares is the biological father of BBB (Exhibits A and series and B and series).

After the cross-examination of the witness by the defense counsel, the Public Prosecutor offered in evidence Exhibits A and sub-markings, referring to the Report of the Chemistry Division of the National Bureau of Investigation, Manila on the DNA analysis to determine whether or not Rufino Umanito y Millares is the biological father of BBB and Exhibit B and sub-markings, referring to the enlarged version of the table of Exhibit A, to establish that on the DNA examination conducted on AAA, BBB and the accused Rufino Umanito for the purpose of establishing paternity, the result is 99.9999% probable. Highly probable. The defense did not interpose any objection, hence, the exhibits were admitted.

1. That considering that under Section 9, A.M. No. 06-11-5-SC, if the value of the Probability of Paternity is 99.9% or higher, there shall be a disputable presumption of paternity, the instant case was set for reception of evidence for the accused on April 29, 2008 to controvert the presumption that he is the biological father of BBB.

During the hearing on April 29, 2008, the accused who was in court manifested through his counsel that he will not present evidence to dispute the findings of the Forensic Chemistry Division of the National Bureau of Investigation.

The DNA samples were collected by the forensic chemist of the National Bureau of Investigation whose qualifications as an expert was properly established adopting the following procedure: a) The subject sources were asked to gargle and to fill out the reference sample form. Thereafter, the chemists informed them that buccal swabs will be taken from their mouth and five (5) droplets of blood will also be taken from the ring finger of their inactive hand; b) c) Pictures of the subject sources were taken by the NBI Chemist; Buccal swabs were taken from the subject sources three (3) times;

d) Subject sources were made to sign three (3) pieces of paper to serve as label of the three buccal swabs placed inside two (2) separate envelopes that bear their names; e) Blood samples were taken from the ring finger of the left hand of the subject sources;

f)

Subject sources were made to sign the FTA card of their blood samples.

The buccal swabs and the FTA cards were placed in a brown envelope for air drying for at least one hour.

g) h)

Finger prints of the subject sources were taken for additional identification; The subject sources were made to sign their finger prints.

i) Atty. Ramon J. Gomez, Deputy Court Administrator Reuben dela Cruz and Prosecutor Maria Nenita A. Oplana, in that order, were made to sign as witnesses to the reference sample forms and the finger prints of the subject sources. j) After one hour of air drying, the Buccal Swabs and the FTA papers were placed inside a white envelope and sealed with a tape by the NBI Chemists; k) The witnesses, Atty. Ramon J. Gomez, Deputy Court Administrator Reuben dela Cruz, Prosecutor Maria Nenita A. Opiana including the NBI Chemist, affixed their signatures on the sealed white envelope; l) m) n) The subjects sources were made to sign and affix their finger prints on the sealed white envelope; The chemists affixed their signatures on the sealed envelope and placed it in a separate brown envelope; The subjects sources were made to affix their finger prints on their identification places and reference forms.

The same procedure was adopted by the Forensic Chemists of the NBI in the taking of DNA samples from the accused, Rufino Umanito at the New Bilibid Prison in the afternoon of February 8, 2008.

Mary Ann Aranas, the expert witness testified that at the NBI the sealed envelope was presented to Ms. Demelen dela Cruz, the supervisor of the Forensic Chemistry Division to witness that the envelope containing the DNA specimens was sealed as it reached the NBI. Photographs of the envelope in sealed form were taken prior to the conduct of examination.

With the procedure adopted by the Forensic Chemist of the NBI, who is an expert and whose integrity and dedication to her work is beyond reproach the manner how the biological samples were collected, how they were handled and the chain of custody thereof were properly established the court is convinced that there is no possibility of contamination of the DNA samples taken from the parties.

At the Forensic Laboratory of the National Bureau of Investigation, the envelopes containing the DNA samples were opened and the specimens were subjected to sampling, extraction, amplification and analysis. Duplicate analysis were made. The Forensic Chemist, Mary Ann Aranas caused the examination of the blood samples and the buccal swabs were separately processed by Mrs. Demelen dela Cruz.

In order to arrive at a DNA profile, the forensic chemists adopted the following procedure: (1) Sampling which is the cutting of a portion from the media (swabs and FTA paper); (2) then subjected the cut portions for extraction to release the DNA; (3) After the DNA was released into the solution, it was further processed using the formarine chain reaction to amplify the DNA samples for analysis of using the Powerplex 16 System, which allows the analysis of 16 portions of the DNA samples. The Powerplex 16 System are reagent kits for forensic purposes; (3) After the target, DNA is multiplied,

the amplified products are analyzed using the genetic analyzer. The Powerplex 16 System has 16 markers at the same time. It is highly reliable as it has already been validated for forensic use. It has also another function which is to determine the gender of the DNA being examined.

Mary Ann Aranas, the Forensic Chemist, in her testimony explained that the DNA found in all cells of a human being come in pairs except the mature red blood cells. These cells are rolled up into minute bodies called chromosomes, which contain the DNA of a person. A human has 23 pairs of chromosomes. For each pair of chromosome, one was found to have originated from the mother, the other must have came from the father. Using the Powerplex 16 System Results, the variable portions of the DNA called loci, which were used as the basis for DNA analysis or typing showed the following: under loci D3S1358, the genotype of the locus of AAA is 15, 16, the genotype of BBB is 15, 16, one of the pair of alleles must have originated and the others from the father. The color for the allele of the mother is red while the father is blue. On matching the allele which came from the mother was first determined AAA, has alleles of 15 or 16 but in the geno type of BBB, 15 was colored blue because that is the only allele which contain the genotype of the accused Rufino Umanito, the 16 originated from the mother, AAA. In this marker BBB has a genotype of 15, 16, 16 is from the mother and 15 is from the father.

The whole process involved the determination which of those alleles originated from the mother and the rest would entail looking on the genotype or the profile of the father to determine if they matched with those of the child.

In the analysis of the 16 loci by the Forensic Chemists, amel on the 13th row was not included because this is the marker that determines the gender of the source of the loci. The pair XX represents a female and XY for a male. Rufino Umanito has XY amel and BBB and AAA have XX amel. For matching paternity purposes only 15 loci were examined. Of the 15 loci, there was a complete match between the alleles of the loci of BBB and Rufino (Exhibits A and B ).

To ensure reliable results, the Standard Operating Procedure of the Forensic Chemistry Division of the NBI in paternity cases is to use buccal swabs taken from the parties and blood as a back up source.

The said Standard Operating Procedure was adopted in the instant case.

As earlier mentioned, DNA samples consisted of buccal swabs and blood samples taken from the parties by the forensic chemists who adopted reliable techniques and procedure in collecting and handling them to avoid contamination. The method that was used to secure the samples were safe and reliable. The samples were taken and handled by an expert, whose qualifications, integrity and dedication to her work is unquestionable, hence, the possibility of substitution or manipulation is very remote.

The procedure adopted by the DNA section, Forensic Chemistry Division of the National Bureau of Investigation in analyzing the samples was in accordance with the standards used in modern technology. The comparative analysis of DNA prints of the accused Rufino Umanito and his alleged child is a simple process called parentage analysis which was made easier with the use of a DNA machine called Genetic Analyzer. To ensure a reliable result, the NBI secured two (2) DNA types of samples from the parties, the buccal swabs as primary source and blood as secondary source. Both sources were separately processed and examined and thereafter a comparative analysis was conducted which yielded the same result.

The National Bureau of Investigation DNA Section, Forensic Division is an accredited DNA testing laboratory in the country which maintains a multimillion DNA analysis equipment for its scientific criminal investigation unit. It is manned by qualified laboratory chemists and technicians who are experts in the field, like Mary Ann Aranas, the expert witness in the instant case, who is a licensed chemists, has undergone training on the aspects of Forensic Chemistry fro two (2) years before she was hired as forensic chemists of the NBI and has been continuously attending training seminars, and workshops which are field related and who has handled more than 200 cases involving DNA extraction or collection or profiling.

The accused did not object to the admission of Exhibits A and B inclusive of their sub-markings. He did not also present evidence to controvert the results of the DNA analysis.

Section 6. A.M. No. 06-11-5-SC provides that: If the value of the Probability of Paternity is 99.9% or higher, there shall be a disputable presumption of paternity.

DNA analysis conducted by the National Bureau of Investigation Forensic Division on the buccal swabs and blood stained on FTA paper taken from AAA, BBB and Rufino Umanito y MillAres for DNA analysis to determine whether or not Rufino Umanito y Millares is the biological father of BBB gave the following result:

FINDINGS: Deoxyribonuncleic acid analysis using the Powerplex 16 System conducted on the above-mentioned, specimens gave the following profiles;

There is a COMPLETE MATCH in all the fifteen (15) loci tested between the alleles of Rufino Umanito y Millares and BBB. REMARKS: Based on the above findings, there is a 99.9999% Probability of Paternity that Rufino Umanito y Millares is the biological Father of BBB

Disputable presumptions are satisfactory if uncontradicted but may be contradicted and overcome by other evidence (Rule 131, Section 3, Rules of Court).

The disputable presumption that was established as a result of the DNA testing was not contradicted and overcome by other evidence considering that the accused did not object to the admission of the results of the DNA testing (Exhibits A and B inclusive of sub-markings) nor presented evidence to rebut the same.

WHEREFORE, premises considered, the trial court rules that based on the result of the DNA analysis conducted by the National Bureau of Investigation, Forensic Division, RUFINO UMANITO y MILLARES is the biological father of BBB.10

Umanito s defense of alibi, together with his specific assertion that while he had courted AAA they were not sweethearts, lead to a general theory on his part that he did not engage in sexual relations with the complainant. The DNA testing has evinced a contrary conclusion, and that as testified to by AAA, Umanito had fathered the child she gave birth to on 5 April 1990, nine months after the day she said she was raped by Umanito.

Still, Umanito filed a Motion to Withdraw Appeal dated 16 February 2009. By filing such motion, Umanito is deemed to have acceded to the rulings of the RTC and the Court of Appeals finding him guilty of the crime of rape, and sentencing him to suffer the penalty of reclusion perpetua and the indemnification of the private complainant in the sum of P50,000.00. Given that the results of the Court-ordered DNA testing conforms with the conclusions of the lower courts, and that no cause is presented for us to deviate from the penalties imposed below, the Court sees no reason to deny Umanito s Motion to Withdraw Appeal. Consequently, the assailed Decision of the Court of Appeals dated 15 February 2006 would otherwise be deemed final if the appeal is not withdrawn.

WHEREFORE, the Motion to Withdraw Appeal dated 16 February 2009 is GRANTED. The instant case is now CLOSED and TERMINATED.

SO ORDERED.

LUCAS V. LUCAS Is a prima facie showing necessary before a court can issue a DNA testing order? In this petition for review on certiorari, we address this question to guide the Bench and the Bar in dealing with a relatively new evidentiary tool. Assailed in this petition are the Court of Appeals (CA) Decision1 dated September 25, 2009 and Resolution dated December 17, 2009. The antecedents of the case are, as follows: On July 26, 2007, petitioner, Jesse U. Lucas, filed a Petition to Establish Illegitimate Filiation (with Motion for the Submission of Parties to DNA Testing)2 before the Regional Trial Court (RTC), Branch 72, Valenzuela City. Petitioner narrated that, sometime in 1967, his mother, Elsie Uy (Elsie), migrated to Manila from Davao and stayed with a certain Ate Belen (Belen) who worked in a prominent nightspot in Manila. Elsie would oftentimes accompany Belen to work. On one occasion, Elsie got acquainted with respondent, Jesus S. Lucas, at Belen s workplace, and an intimate relationship developed between the two. Elsie eventually got pregnant and, on March 11, 1969, she gave birth to petitioner, Jesse U. Lucas. The name of petitioner s father was not stated in petitioner s certificate of live birth. However, Elsie later on told petitioner that his father is respondent. On August 1, 1969, petitioner was baptized at San Isidro Parish, Taft Avenue, Pasay City. Respondent allegedly extended financial support to Elsie and petitioner for a period of about two years. When the relationship of Elsie and respondent ended, Elsie refused to accept respondent s offer of support and decided to raise petitioner on her own. While petitioner was growing up, Elsie made several attempts to introduce petitioner to respondent, but all attempts were in vain.

Attached to the petition were the following: (a) petitioner s certificate of live birth; (b) petitioner s baptismal certificate; (c) petitioner s college diploma, showing that he graduated from Saint Louis University in Baguio City with a degree in Psychology; (d) his Certificate of Graduation from the same school; (e) Certificate of Recognition from the University of the Philippines, College of Music; and (f) clippings of several articles from different newspapers about petitioner, as a musical prodigy. Respondent was not served with a copy of the petition. Nonetheless, respondent learned of the petition to establish filiation. His counsel therefore went to the trial court on August 29, 2007 and obtained a copy of the petition.

Petitioner filed with the RTC a Very Urgent Motion to Try and Hear the Case. Hence, on September 3, 2007, the RTC, finding the petition to be sufficient in form and substance, issued the Order3 setting the case for hearing and urging anyone who has any objection to the petition to file his opposition. The court also directed that the Order be published once a week for three consecutive weeks in any newspaper of general circulation in the Philippines, and that the Solicitor General be furnished with copies of the Order and the petition in order that he may appear and represent the State in the case. On September 4, 2007, unaware of the issuance of the September 3, 2007 Order, respondent filed a Special Appearance and Comment. He manifested inter alia that: (1) he did not receive the summons and a copy of the petition; (2) the petition was adversarial in nature and therefore summons should be served on him as respondent; (3) should the court agree that summons was required, he was waiving service of summons and making a voluntary appearance; and (4) notice by publication of the petition and the hearing was improper because of the confidentiality of the subject matter.4

On September 14, 2007, respondent also filed a Manifestation and Comment on Petitioner s Very Urgent Motion to Try and Hear the Case. Respondent reiterated that the petition for recognition is adversarial in nature; hence, he should be served with summons. After learning of the September 3, 2007 Order, respondent filed a motion for reconsideration.5 Respondent averred that the petition was not in due form and substance because petitioner could not have personally known the matters that were alleged therein. He argued that DNA testing cannot be had on the basis of a mere allegation pointing to respondent as petitioner s father. Moreover, jurisprudence is still unsettled on the acceptability of DNA evidence.

On July 30, 2008, the RTC, acting on respondent s motion for reconsideration, issued an Order6 dismissing the case. The court remarked that, based on the case of Herrera v. Alba,7 there are four significant procedural aspects of a traditional paternity action which the parties have to face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance between the putative father and the child. The court opined that petitioner must first establish these four procedural aspects before he can present evidence of paternity and filiation, which may include incriminating acts or scientific evidence like blood group test and DNA test results. The court observed that the petition did not show that these procedural aspects were present. Petitioner failed to establish a prima facie case considering that (a) his mother did not personally declare that she had sexual relations with respondent, and petitioner s statement as to what his mother told him about his father was clearly hearsay; (b) the certificate of live birth was not signed by respondent; and (c) although petitioner used the surname of respondent, there was no allegation that he was treated as the child of respondent by the latter or his family. The court opined that, having failed to establish a prima facie case, respondent had no obligation to present any affirmative defenses. The dispositive portion of the said Order therefore reads: WHEREFORE, for failure of the petitioner to establish compliance with the four procedural aspects of a traditional paternity action in his petition, his motion for the submission of parties to DNA testing to establish paternity and filiation is hereby DENIED. This case is DISMISSED without prejudice.

SO ORDERED.8 Petitioner seasonably filed a motion for reconsideration to the Order dated July 30, 2008, which the RTC resolved in his favor. Thus, on October 20, 2008, it issued the Order9 setting aside the court s previous order, thus:

WHEREFORE, in view of the foregoing, the Order dated July 30, 2008 is hereby reconsidered and set aside.

Let the Petition (with Motion for the Submission of Parties to DNA Testing) be set for hearing on January 22, 2009 at 8:30 in the morning.

SO ORDERED.10 This time, the RTC held that the ruling on the grounds relied upon by petitioner for filing the petition is premature considering that a full-blown trial has not yet taken place. The court stressed that the petition was sufficient in form and substance. It was verified, it included a certification against forum shopping, and it contained a plain, concise, and direct statement of the ultimate facts on which petitioner relies on for his claim, in accordance with Section 1, Rule 8 of the Rules of Court. The court remarked that the allegation that the statements in the petition were not of petitioner s personal knowledge is a matter of evidence. The court also dismissed respondent s arguments that there is no basis for the taking of DNA test, and that jurisprudence is still unsettled on the acceptability of DNA evidence. It noted that the new Rule on DNA Evidence11 allows the conduct of DNA testing, whether at the court s instance or upon application of any person who has legal interest in the matter in litigation.

Respondent filed a Motion for Reconsideration of Order dated October 20, 2008 and for Dismissal of Petition,12 reiterating that (a) the petition was not in due form and substance as no defendant was named in the title, and all the basic allegations were hearsay; and (b) there was no prima facie case, which made the petition susceptible to dismissal.

The RTC denied the motion in the Order dated January 19, 2009, and rescheduled the hearing.13

Aggrieved, respondent filed a petition for certiorari with the CA, questioning the Orders dated October 20, 2008 and January 19, 2009.

On September 25, 2009, the CA decided the petition for certiorari in favor of respondent, thus:

WHEREFORE, the instant petition for certiorari is hereby GRANTED for being meritorious. The assailed Orders dated October 20, 2008 and January 19, 2009 both issued by the Regional Trial Court, Branch 172 of Valenzuela City in SP. Proceeding Case No. 30-V-07 are REVERSED and SET ASIDE. Accordingly, the case docketed as SP. Proceeding Case No. 30-V-07 is DISMISSED.14

The CA held that the RTC did not acquire jurisdiction over the person of respondent, as no summons had been served on him. Respondent s special appearance could not be considered as voluntary appearance because it was filed only for the

purpose of questioning the jurisdiction of the court over respondent. Although respondent likewise questioned the court s jurisdiction over the subject matter of the petition, the same is not equivalent to a waiver of his right to object to the jurisdiction of the court over his person.

The CA remarked that petitioner filed the petition to establish illegitimate filiation, specifically seeking a DNA testing order to abbreviate the proceedings. It noted that petitioner failed to show that the four significant procedural aspects of a traditional paternity action had been met. The CA further held that a DNA testing should not be allowed when the petitioner has failed to establish a prima facie case, thus:

While the tenor of Section 4, Rule on DNA Evidence appears to be absolute, the rule could not really have been intended to trample on the substantive rights of the parties. It could have not meant to be an instrument to promote disorder, harassment, or extortion. It could have not been intended to legalize unwarranted expedition to fish for evidence. Such will be the situation in this particular case if a court may at any time order the taking of a DNA test. If the DNA test in compulsory recognition cases is immediately available to the petitioner/complainant without requiring first the presentation of corroborative proof, then a dire and absurd rule would result. Such will encourage and promote harassment and extortion. At the risk of being repetitious, the Court would like to stress that it sees the danger of allowing an absolute DNA testing to a compulsory recognition test even if the plaintiff/petitioner failed to establish prima facie proof. x x x If at anytime, motu proprio and without pre-conditions, the court can indeed order the taking of DNA test in compulsory recognition cases, then the prominent and well-to-do members of our society will be easy prey for opportunists and extortionists. For no cause at all, or even for sic casual sexual indiscretions in their younger years could be used as a means to harass them. Unscrupulous women, unsure of the paternity of their children may just be taking the chances-just in case-by pointing to a sexual partner in a long past one-time encounter. Indeed an absolute and unconditional taking of DNA test for compulsory recognition case opens wide the opportunities for extortionist to prey on victims who have no stomach for scandal.15

Petitioner moved for reconsideration. On December 17, 2009, the CA denied the motion for lack of merit.16 In this petition for review on certiorari, petitioner raises the following issues: I WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RESOLVED THE ISSUE OF LACK OF JURISDICTION OVER THE PERSON OF HEREIN RESPONDENT ALBEIT THE SAME WAS NEVER RAISED IN THE PETITION FOR CERTIORARI.

I.A

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RULED THAT JURISDICTION WAS NOT ACQUIRED OVER THE PERSON OF THE RESPONDENT.

I.B

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT FAILED TO REALIZE THAT THE RESPONDENT HAD ALREADY SUBMITTED VOLUNTARILY TO THE JURISDICTION OF THE COURT A QUO.

I.C

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ESSENTIALLY RULED THAT THE TITLE OF A PLEADING, RATHER THAN ITS BODY, IS CONTROLLING.

II.

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ORDERED THE DISMISSAL OF THE PETITION BY REASON OF THE MOTION (FILED BY THE PETITIONER BEFORE THE COURT A QUO) FOR THE CONDUCT OF DNA TESTING. WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ESSENTIALLY RULED THAT DNA TESTING CAN ONLY BE ORDERED AFTER THE PETITIONER ESTABLISHES PRIMA FACIE PROOF OF FILIATION.

II.A

III.

WHETHER OR NOT THE COURT OF APPEALS ERRED WITH ITS MISPLACED RELIANCE ON THE CASE OF HERRERA VS. ALBA,

ESPECIALLY AS REGARDS THE FOUR SIGNIFICANT PROCEDURAL ASPECTS OF A TRADITIONAL PATERNITY ACTION. 17

Petitioner contends that respondent never raised as issue in his petition for certiorari the court s lack of jurisdiction over his person. Hence, the CA had no legal basis to discuss the same, because issues not raised are deemed waived or abandoned. At any rate, respondent had already voluntarily submitted to the jurisdiction of the trial court by his filing of several motions asking for affirmative relief, such as the (a) Motion for Reconsideration of the Order dated September 3, 2007; (b) Ex Parte Motion to Resolve Motion for Reconsideration of the Order dated November 6, 2007; and (c) Motion for Reconsideration of the Order dated October 20, 2008 and for Dismissal of Petition. Petitioner points out that respondent even expressly admitted that he has waived his right to summons in his Manifestation and Comment on Petitioner s Very Urgent Motion to Try and Hear the Case. Hence, the issue is already moot and academic.

Petitioner argues that the case was adversarial in nature. Although the caption of the petition does not state respondent s name, the body of the petition clearly indicates his name and his known address. He maintains that the body of the petition is controlling and not the caption.

Finally, petitioner asserts that the motion for DNA testing should not be a reason for the dismissal of the petition since it is not a legal ground for the dismissal of cases. If the CA entertained any doubt as to the propriety of DNA testing, it should have simply denied the motion.18 Petitioner points out that Section 4 of the Rule on DNA Evidence does not require that there must be a prior proof of filiation before DNA testing can be ordered. He adds that the CA erroneously relied on the four significant procedural aspects of a paternity case, as enunciated in Herrera v. Alba.19 Petitioner avers that these procedural aspects are not applicable at this point of the proceedings because they are matters of evidence that should be taken up during the trial.20

In his Comment, respondent supports the CA s ruling on most issues raised in the petition for certiorari and merely reiterates his previous arguments. However, on the issue of lack of jurisdiction, respondent counters that, contrary to petitioner s assertion, he raised the issue before the CA in relation to his claim that the petition was not in due form and substance. Respondent denies that he waived his right to the service of summons. He insists that the alleged waiver and voluntary appearance was conditional upon a finding by the court that summons is indeed required. He avers that the assertion of affirmative defenses, aside from lack of jurisdiction over the person of the defendant, cannot be considered as waiver of the defense of lack of jurisdiction over such person. The petition is meritorious. Primarily, we emphasize that the assailed Orders of the trial court were orders denying respondent s motion to dismiss the petition for illegitimate filiation. An order denying a motion to dismiss is an interlocutory order which neither

terminates nor finally disposes of a case, as it leaves something to be done by the court before the case is finally decided on the merits. As such, the general rule is that the denial of a motion to dismiss cannot be questioned in a special civil action for certiorari, which is a remedy designed to correct errors of jurisdiction and not errors of judgment. Neither can a denial of a motion to dismiss be the subject of an appeal unless and until a final judgment or order is rendered. In a number of cases, the court has granted the extraordinary remedy of certiorari on the denial of the motion to dismiss but only when it has been tainted with grave abuse of discretion amounting to lack or excess of jurisdiction.21 In the present case, we discern no grave abuse of discretion on the part of the trial court in denying the motion to dismiss. The grounds for dismissal relied upon by respondent were (a) the court s lack of jurisdiction over his person due to the absence of summons, and (b) defect in the form and substance of the petition to establish illegitimate filiation, which is equivalent to failure to state a cause of action. We need not belabor the issues on whether lack of jurisdiction was raised before the CA, whether the court acquired jurisdiction over the person of respondent, or whether respondent waived his right to the service of summons. We find that the primordial issue here is actually whether it was necessary, in the first place, to serve summons on respondent for the court to acquire jurisdiction over the case. In other words, was the service of summons jurisdictional? The answer to this question depends on the nature of petitioner s action, that is, whether it is an action in personam, in rem, or quasi in rem. An action in personam is lodged against a person based on personal liability; an action in rem is directed against the thing itself instead of the person; while an action quasi in rem names a person as defendant, but its object is to subject that person's interest in a property to a corresponding lien or obligation. A petition directed against the "thing" itself or the res, which concerns the status of a person, like a petition for adoption, annulment of marriage, or correction of entries in the birth certificate, is an action in rem.22 In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. In a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court, provided that the latter has jurisdiction over the res. Jurisdiction over the res is acquired either (a) by the seizure of the property under legal process, whereby it is brought into actual custody of the law, or (b) as a result of the institution of legal proceedings, in which the power of the court is recognized and made effective. 23

The herein petition to establish illegitimate filiation is an action in rem. By the simple filing of the petition to establish illegitimate filiation before the RTC, which undoubtedly had jurisdiction over the subject matter of the petition, the latter thereby acquired jurisdiction over the case. An in rem proceeding is validated essentially through publication. Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort to the right sought to be established.24 Through publication, all interested parties are deemed notified of the petition.

If at all, service of summons or notice is made to the defendant, it is not for the purpose of vesting the court with jurisdiction, but merely for satisfying the due process requirements.25 This is but proper in order to afford the person concerned the opportunity to protect his interest if he so chooses.26 Hence, failure to serve summons will not deprive the court of its jurisdiction to try and decide the case. In such a case, the lack of summons may be excused where it is determined that the adverse party had, in fact, the opportunity to file his opposition, as in this case. We find that the due process requirement with respect to respondent has been satisfied, considering that he has participated in the proceedings in this case and he has the opportunity to file his opposition to the petition to establish filiation. To address respondent s contention that the petition should have been adversarial in form, we further hold that the herein petition to establish filiation was sufficient in form. It was indeed adversarial in nature despite its caption which lacked the name of a defendant, the failure to implead respondent as defendant, and the non-service of summons upon respondent. A proceeding is adversarial where the party seeking relief has given legal warning to the other party and

afforded the latter an opportunity to contest it.27 In this petition classified as an action in rem the notice requirement for an adversarial proceeding was likewise satisfied by the publication of the petition and the giving of notice to the Solicitor General, as directed by the trial court. The petition to establish filiation is sufficient in substance. It satisfies Section 1, Rule 8 of the Rules of Court, which requires the complaint to contain a plain, concise, and direct statement of the ultimate facts upon which the plaintiff bases his claim. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action inadequate.28 A complaint states a cause of action when it contains the following elements: (1) the legal right of plaintiff, (2) the correlative obligation of the defendant, and (3) the act or omission of the defendant in violation of said legal right.29 The petition sufficiently states the ultimate facts relied upon by petitioner to establish his filiation to respondent. Respondent, however, contends that the allegations in the petition were hearsay as they were not of petitioner s personal knowledge. Such matter is clearly a matter of evidence that cannot be determined at this point but only during the trial when petitioner presents his evidence.

In a motion to dismiss a complaint based on lack of cause of action, the question submitted to the court for determination is the sufficiency of the allegations made in the complaint to constitute a cause of action and not whether those allegations of fact are true, for said motion must hypothetically admit the truth of the facts alleged in the complaint.30 The inquiry is confined to the four corners of the complaint, and no other.31 The test of the sufficiency of the facts alleged in the complaint is whether or not, admitting the facts alleged, the court could render a valid judgment upon the same in accordance with the prayer of the complaint.32

If the allegations of the complaint are sufficient in form and substance but their veracity and correctness are assailed, it is incumbent upon the court to deny the motion to dismiss and require the defendant to answer and go to trial to prove his defense. The veracity of the assertions of the parties can be ascertained at the trial of the case on the merits.33

The statement in Herrera v. Alba34 that there are four significant procedural aspects in a traditional paternity case which parties have to face has been widely misunderstood and misapplied in this case. A party is confronted by these socalled procedural aspects during trial, when the parties have presented their respective evidence. They are matters of evidence that cannot be determined at this initial stage of the proceedings, when only the petition to establish filiation has been filed. The CA s observation that petitioner failed to establish a prima facie case the first procedural aspect in a paternity case is therefore misplaced. A prima facie case is built by a party s evidence and not by mere allegations in the initiatory pleading.

Clearly then, it was also not the opportune time to discuss the lack of a prima facie case vis--vis the motion for DNA testing since no evidence has, as yet, been presented by petitioner. More essentially, it is premature to discuss whether, under the circumstances, a DNA testing order is warranted considering that no such order has yet been issued by the trial court. In fact, the latter has just set the said case for hearing.

At any rate, the CA s view that it would be dangerous to allow a DNA testing without corroborative proof is well taken and deserves the Court s attention. In light of this observation, we find that there is a need to supplement the Rule on DNA Evidence to aid the courts in resolving motions for DNA testing order, particularly in paternity and other filiation

cases. We, thus, address the question of whether a prima facie showing is necessary before a court can issue a DNA testing order. The Rule on DNA Evidence was enacted to guide the Bench and the Bar for the introduction and use of DNA evidence in the judicial system. It provides the prescribed parameters on the requisite elements for reliability and validity (i.e., the proper procedures, protocols, necessary laboratory reports, etc.), the possible sources of error, the available objections to the admission of DNA test results as evidence as well as the probative value of DNA evidence. It seeks to ensure that the evidence gathered, using various methods of DNA analysis, is utilized effectively and properly, and shall not be misused and/or abused and, more importantly, shall continue to ensure that DNA analysis serves justice and protects, rather than prejudice the public. 35 Not surprisingly, Section 4 of the Rule on DNA Evidence merely provides for conditions that are aimed to safeguard the accuracy and integrity of the DNA testing. Section 4 states:

SEC. 4. Application for DNA Testing Order. The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties upon a showing of the following: (a) A biological sample exists that is relevant to the case; (b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons; (c) The DNA testing uses a scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and (e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing. This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party, including law enforcement agencies, before a suit or proceeding is commenced.

This does not mean, however, that a DNA testing order will be issued as a matter of right if, during the hearing, the said conditions are established.

In some states, to warrant the issuance of the DNA testing order, there must be a show cause hearing wherein the applicant must first present sufficient evidence to establish a prima facie case or a reasonable possibility of paternity or good cause for the holding of the test. 36 In these states, a court order for blood testing is considered a search, which, under their Constitutions (as in ours), must be preceded by a finding of probable cause in order to be valid. Hence, the requirement of a prima facie case, or reasonable possibility, was imposed in civil actions as a counterpart of a finding of probable cause. The Supreme Court of Louisiana eloquently explained

Although a paternity action is civil, not criminal, the constitutional prohibition against unreasonable searches and seizures is still applicable, and a proper showing of sufficient justification under the particular factual circumstances of the case must be made before a court may order a compulsory blood test. Courts in various jurisdictions have differed regarding the kind of procedures which are required, but those jurisdictions have almost universally found that a preliminary showing must be made before a court can constitutionally order compulsory blood testing in paternity

cases. We agree, and find that, as a preliminary matter, before the court may issue an order for compulsory blood testing, the moving party must show that there is a reasonable possibility of paternity. As explained hereafter, in cases in which paternity is contested and a party to the action refuses to voluntarily undergo a blood test, a show cause hearing must be held in which the court can determine whether there is sufficient evidence to establish a prima facie case which warrants issuance of a court order for blood testing.37

The same condition precedent should be applied in our jurisdiction to protect the putative father from mere harassment suits. Thus, during the hearing on the motion for DNA testing, the petitioner must present prima facie evidence or establish a reasonable possibility of paternity. Notwithstanding these, it should be stressed that the issuance of a DNA testing order remains discretionary upon the court. The court may, for example, consider whether there is absolute necessity for the DNA testing. If there is already preponderance of evidence to establish paternity and the DNA test result would only be corroborative, the court may, in its discretion, disallow a DNA testing.

WHEREFORE, premises considered, the petition is GRANTED. The Court of Appeals Decision dated September 25, 2009 and Resolution dated December 17, 2009 are REVERSED and SET ASIDE. The Orders dated October 20, 2008 and January 19, 2009 of the Regional Trial Court of Valenzuela City are AFFIRMED.

SO ORDERED.

PEOPLE V. VALLEJO DECISION PER CURIAM: This is an appeal from the decisionxxiii1 of the Regional Trial Court, Branch 88, Cavite City, sentencing Gerrico Vallejo y Samartino to death and ordering him to indemnify the heirs of the victim in the amount of P100,000.00 as civil indemnity and P50,000.00 as moral damages for the rape-slaying of a 9-year old child, Daisy Diolola, in Rosario, Cavite on July 10, 1999. The Information charging accused-appellant Gerrico Vallejo with the crime of Rape with Homicide alleged: That on or about the 10th day of July 1999, in Barangay Ligtong I, Municipality of Rosario, Province of Cavite, Philippines and within the jurisdiction of this Honorable Trial Court, the above-named accused, with lewd design, by means of force and intimidation, did then and there, willfully, unlawfully and feloniously have sexual intercourse with DAISY DIOLOLA Y DITALO, a nine-year old child against the latter s will and while raping the said victim, said accused strangled her to death. CONTRARY TO LAW. xxiv2 Accused-appellant was arraigned on July 26, 1999 and, with the assistance of counsel, pleaded not guilty to the crime charged, whereupon trial ensued. Ten (10) witnesses testified for the prosecution, namely, Ma. Nida Diolola, the victim s mother; Dr. Antonio S. Vertido, medico-legal officer of the NBI; Atty. Lupo Leyva; Mayor Renato Abutan of Rosario, Cavite; Atty. Sikat Agbunag of the Public Attorney s Office; Pet Byron Buan, NBI Forensic Biologist; Aida Viloria-Magsipoc, NBI Forensic Chemist; SPO1 Arnel

Cuevas of the Rosario, Cavite police station; and Jessiemin Mataverde and Charito Paras-Yepes, both neighbors of the victim. The victim s mother, Ma. Nida Diolola, testified that at around 1:00 o clock in the afternoon of July 10, 1999, she sent her 9-year old daughter Daisy Diolola to their neighbor s house in Pilapil, Ligtong I, Rosario, Cavite, so that Aimee Vallejo, the sister of accused-appellant, could help Daisy with her lessons. Aimee s house, where accused-appellant was also staying, is about four to five meters away from Daisy s house. Ma. Nida saw her daughter go to the house of her tutor. She was wearing pink short pants and a white sleeveless shirt. An hour later, Daisy came back with accused-appellant. They were looking for a book which accused-appellant could copy to make a drawing or a poster that Daisy would submit to her teacher. After finding the book, Daisy and accused-appellant went back to the latter s house. When Ma. Nida woke up at about 5:30 o clock after an afternoon nap, she noticed that Daisy was not yet home. She started looking for her daughter and proceeded to the house of Aimee, Daisy s tutor. Aimee s mother told Ma. Nida that Daisy was not there and that Aimee was not able to help Daisy with her lessons because Aimee was not feeling well as she had her menstrual period. Ma. Nida looked for Daisy in her brother s and sister s houses, but she was not there, either. At about 7:00 o clock that evening, Ma. Nida went back to her neighbor s house, and there saw accused-appellant, who told her that Daisy had gone to her classmate s house to borrow a book. But, when Ma. Nida went there, she was told that Daisy had not been there. Ma. Nida went to the dike and was told that they saw Daisy playing at about 3:30 o clock in the afternoon. Jessiemin Mataverde also told Ma. Nida that Daisy was playing in front of her house that afternoon and even watched television in her house, but that Daisy later left with accused-appellant. Ma. Nida and her brother and sister searched for Daisy the whole evening of June 10, 1999, a Saturday, until the early morning of the following day, June 11, 1999, a Sunday, but their search proved fruitless. Then, at about 10:00 o clock in the morning of June 11, 1999, she was informed that the dead body of her daughter was found tied to the root of an aroma tree by the river after the compuerta by a certain Freddie Quinto. The body was already in the barangay hall when Ma. Nida saw her daughter. Daisy was wearing her pink short pants with her sleeveless shirt tied around her neck. Barangay Councilmen Raul Ricasa and Calring Purihin reported the incident to the Rosario police. The other barangay officers fetched accused-appellant from his house and took him to the barangay hall. At the barangay hall, Ma. Nida pointed to accused-appellant Gerrico Vallejo as the probable suspect since he was with the victim when she was last seen alive.xxv3 Another witness, Jessiemin Mataverde, testified that at around 3:00 o clock in the afternoon of that day, she saw Daisy playing with other children outside her house. She asked Daisy and her playmates to stop playing as their noise was keeping Jessiemin s one-year old baby awake. Daisy relented and watched television instead from the door of Jessiemin s house. About five minutes later, accused-appellant came to the house and told Daisy something, as a result of which she went with him and the two proceeded towards the compuerta. Jessiemin testified that at around 5:00 o clock that afternoon, while she and her daughter were in front of a store across the street from her house, accused-appellant arrived to buy a stick of Marlboro cigarette. Accused-appellant had only his basketball shorts on and was just holding his shirt. They noticed both his shorts and his shirt were wet. After lighting his cigarette, accused-appellant left.xxvi4 Charito Yepes, another neighbor of Ma. Nida, also testified. She said that at about 4:30 o clock in the afternoon of July 10, 1999, while she and her husband and children were walking towards the compuerta near the seashore of Ligtong, Rosario, Cavite, they met a fisherman named Herminio who said that it was a good day for catching milkfish (bangus). For this reason, according to this witness, they decided to get some fishing implements. She said they met accusedappellant Gerrico Vallejo near the seashore and noticed that he was uneasy and looked troubled. Charito said that accused-appellant did not even greet them, which was unusual. She also testified that accused-appellant s shorts and shirt (sando) were wet, but his face and hair were not.xxvii5 SPO1 Arnel Cuevas testified that upon receipt of the report, Rosario Police Chief Ricardo B. de la Cruz, Jr. responded to the call together with his men, PO2 Garcia, SPO1 Araracap and PO2 Lariza. When they arrived, Daisy s body was already in the barangay hall. SPO1 Cuevas took photographs of the body. At that time, Daisy was wearing pink short pants and a dirty white panty with a dirty white sleeveless shirt wrapped around her neck. The body was afterwards taken to the Samson Funeral Parlor in Rosario, Cavite. The inquiries conducted by the police showed that one Freddie Quinto was

fishing near the compuerta when he accidentally hit the body of Daisy, which was in the mud and tied to the root of an aroma tree. Accused-appellant was invited by the policemen for questioning. Two others, a certain Raymond and Esting, were also taken into custody because they were seen with accused-appellant in front of the store in the late afternoon of July 10 1999. Later, however, the two were released. Based on the statements of Jessiemin Mataverde and Charito ParasYepes, the policemen went to the house of accused-appellant at about 4:00 o clock in the afternoon of July 11, 1999 and recovered the white basketball shirt, with the name Samartino and No. 13 printed at the back, and the violet basketball shorts, with the number 9 printed on it, worn by accused-appellant the day before. The shirt and shorts, which were bloodstained, were turned over to the NBI for laboratory examination.xxviii6 Dr. Antonio S. Vertido, NBI Medico-Legal Officer, testified that at about 9:00 o clock in the evening of July 11, 1999, he conducted a physical examination of accused-appellant. His findingsxxix7 showed the following: PHYSICAL FINDINGS: Abrasions: thigh, right, antero-lateral aspect, lower 3rd 5.0 x 0.1 cm., knee, left, 7.0 x 6.0 cm. legs, right anterior aspect, 28.0 x 8.0 cms., left anterior aspect, 24.0 x 10.0 cms., feet, plantar aspects; right, 9.0 x 3.0 cms. and left, 13.0 x 5.0 cms. Hematoma, left ring finger, posterior aspect, 1.0 x 0.5 cm. Lacerations, left ring finger, posterior aspect, 0.3 cm. (Living Case No. BMP-9902, p. 101, records) At about 10:00 o clock in the evening, Dr. Vertido went to the Samson Funeral Parlor in Rosario, Cavite for an autopsy on the cadaver of the victim Daisy Diolola. The autopsy revealed the following postmortem findings:xxx8 Body in early stage of postmortem decomposition characterized by foul odor, eyes and tongue protruding, bloating of the face and blister formation. Washerwoman s hands and feet. Contusion, (pinkish) face, right, 14.0 x 10.0 cms. and left, 13.0 x 6.0 cms. Contused abrasions, forehead, 13.0 x 5.0 cms. upper lip, 5.0 x 22.0 cms., lower lip, 3.0 x 2.0 cms., neck (nailmarks) anterior aspect, 8.0 x 5.0 cms., arms, right anteromedial aspect, middle 3rd 3.0 x 15.0 cms. posterior aspect, upper 3rd, 1.5 x 1.0 cms., left posterior aspect, 20.0 x 9.0 cms., forearm, left, posterior aspect, 21.0 x 8.0 cms. left thumb, anterior aspect, 1.5 x 1.0 cms., left middle, ring and little fingers, dorsal aspect, .50 x 4.0 cms. knees, right, 3.0 x 2.0 cms. and left, 8.0- x 5.0 cms., legs, right anterior aspect, upper and middle 3rd 3.0 x 2.5 cms. foot right, dorsal aspect. Hematoma, periorbital right, 5.0 x 3.0 cms. and left, 4.5 x 3.0 cms. Fracture, tracheal rings. Hemorrhages, interstitial, neck, underneath, nailmarks. Petechial hemorrhages, subendocardial, subpleural. Brain and other visceral organs are congested. Stomach, contains rice and other food particles. CAUSE OF DEATH: -Asphyxia by Manual Strangulation. GENITAL EXAMINATION: - Pubic hair, no growth. Labia majora and minora, gaping and congested. Hymen, moderately tall, thick with fresh lacerations, complete at 3:00, 6:00 and 9:00 o clock positions, edges with blood clots. Autopsy Report No. BTNO-99-152 Renato Abutan, Municipal Mayor of Rosario, Cavite, testified that he was informed of the rape and murder at past 10:00 o clock in the evening of June 11, 1999. The mayor said he immediately proceeded to the municipal jail, where accused-

appellant was detained, and talked to the latter. Accused-appellant at first denied having anything to do with the killing and rape of the child. The mayor said he told accused-appellant that he could not help him if he did not tell the truth. At that point, accused-appellant started crying and told the mayor that he killed the victim by strangling her. Accusedappellant claimed that he was under the influence of drugs. The mayor asked accused-appellant if he wanted to have the services of Atty. Lupo Leyva, a resident of Rosario, as his lawyer. When accused-appellant said he did, Mayor Abutan fetched Atty. Leyva from his house and took him to the police station about 11:00 o clock that evening.xxxi9 Atty. Lupo Leyva corroborated Mayor Abutan s testimony. He said that upon arriving at the police station, he asked accused-appellant if he wanted his services as counsel in the investigation. After accused-appellant assented, Atty. Leyva testified that he sort of discouraged the former from making statements as anything he said could be used against him. But, as accused-appellant was willing to be investigated, Atty. Leyva said he advised him to tell the truth. PO2 Garcia, the investigator, informed accused-appellant of his constitutional rights to remain silent and to be assisted by counsel and warned him that any answer he gave could and might be used against him in a court of law. PO2 Garcia asked questions from accused-appellant, who gave his answers in the presence of Atty. Leyva. After the statement was taken, Atty. Leyva and accused-appellant read it and afterwards signed it. Atty. Leyva testified that he did not see or notice any indication that accused-appellant had been maltreated by the police. In his sworn statement (Exh. M), accused-appellant confessed to killing the victim by strangling her to death, but denied having molested her.xxxii10 Pet Byron Buan, Forensic Biologist of the NBI, testified that on July 12, 1999, he took blood samples from accusedappellant in his office for laboratory examination to determine his blood type. Likewise, the basketball shorts and shirt worn by accused-appellant on the day the victim was missing and the victim s clothing were turned over to the Forensic Chemistry Division of the NBI by PO1 Amoranto of the Rosario, Cavite police for the purpose of determining the presence of human blood and its groups.xxxiii11 The results of the examinations conducted by Pet Byron T. Buan showed accused-appellant to belong to Group O . The following specimens: (1) one (1) white no. 13 athletic basketball shirt, with patches Grizzlies in front and SAMARTINO at the back; (2) one (1) violet no. 9 athletic basketball short pants; (3) one (1) white small Hello Kitty Tshirt with reddish brown stains; (4) one (1) cut pink short pants with reddish brown stains; (5) one (1) cut dirty white small panty with reddish brown stains, were all positive for the presence of human blood showing the reactions of Group A .xxxiv12 Pet Byron Buan also testified that before he took the blood samples, he had a conversation with accused-appellant during which the latter admitted that he had raped and later killed the victim by strangulation and stated that he was willing to accept the punishment that would be meted out on him because of the grievous offense he had committed. Mr. Buan observed that accused-appellant was remorseful and was crying when he made the confession in the presence of SPO1 Amoranto at the NBI laboratory.xxxv13 When accused-appellant was brought before Inquest Prosecutor Elpidia J. Itoc at around noon of July 13, 1999 in Cavite City, accused-appellant had with him a handwritten confession which he had executed inside his cell at the Municipal Jail of Rosario. In his confession, accused-appellant admitted not only that he killed the victim but that he had before that raped her. Accused-appellant said he laid down the victim on a grassy area near the dike. He claimed that she did not resist when he removed her undergarments but that when he tried to insert his penis into the victim s vagina, she struggled and resisted. Accused-appellant said he panicked and killed the child. He then dumped her body in the shallow river near the compuerta and went home.xxxvi14 Atty. Sikat Agbunag, a lawyer from the Public Attorney s Office, testified that at noon of July 13, 1999, while she was in their office in Cavite City, Prosecutor Itoc came together with accused-appellant and some policemen. Prosecutor Itoc asked Atty. Agbunag to assist accused-appellant about his confession. Atty. Agbunag read the document, informed accused-appellant of his constitutional rights, and warned him that the document could be used against him and that he could be convicted of the case against him, but, according to her, accused-appellant said that he had freely and voluntarily executed the document because he was bothered by his conscience. Accused-appellant, assisted by Atty. Agbunag, then affixed his signature to the document and swore to it before Prosecutor Itoc.xxxvii15 At the instance of City Prosecutor Agapito S. Lu of Cavite City, NBI Forensic Biologist Pet Byron Buan took buccal swabs and hair samples from accused-appellant, as well as buccal swabs and hair samples from the parents of the victim,

namely, Ma. Nida Diolola and Arnulfo Diolola. The samples were submitted to the DNA Laboratory of the NBI for examination. Aida Viloria-Magsipoc, Forensic Chemist of the NBI, conducted DNA tests on the specimens collected by Dr. Vertido. She testified that the vaginal swabs of the victim taken by Dr. Vertido during the autopsy contained the DNA profiles of accused-appellant and the victim.xxxviii16 The defense then presented as witnesses accused-appellant Gerrico Vallejo and his sister Aimee Vallejo. Their testimonies show that at about 1:00 o clock in the afternoon of July 10, 1999, accused-appellant, Aimee, and their sister Abigail were in their house in Barangay Talisay, Ligtong I, Rosario, Cavite when Daisy Diolola came to ask accusedappellant to draw her school project. After making the request, Daisy left.xxxix17 Accused-appellant did not immediately make the drawing because he was watching television. Accused-appellant said that he finished the drawing at about 3:00 o clock in the afternoon and gave it to the victim s aunt, Glory. He then returned home to watch television again. He claimed he did not go out of the house until 7:00 o clock in the evening when he saw Ma. Nida, who was looking for her daughter. Accused-appellant said he told her that he had not seen Daisy. After that, accused-appellant said he went to the pilapil and talked with some friends, and, at about 8:00 o clock that evening, he went home. At 9:00 o clock in the morning of July 11, 1999, barangay officials fetched accused-appellant from his house and took him to the barangay hall, where he was asked about the disappearance of Daisy. He claimed that he did not know anything about it. Accused-appellant was allowed to go home, but, at 11:00 o clock that morning, policemen came and invited him to the police headquarters for questioning. His mother went with him to the police station. There, accusedappellant was asked whether he had something to do with the rape and killing of Daisy. He denied knowledge of the crime. At 4:00 o clock that afternoon, accused-appellant accompanied the police to his house to get the basketball shorts and shirt he was wearing the day before, which were placed together with other dirty clothes at the back of their house. According to accused-appellant, the police forced him to admit that he had raped and killed Daisy and that he admitted having committed the crime to stop them from beating him up. Accused-appellant claimed the police even burned his penis with a lighted cigarette and pricked it with a needle. Accused-appellant confirmed that Mayor Renato Abutan and Atty. Lupo Leyva went to see him in the investigation room of the police station and told him that they would help him if he told the truth. Atty. Leyva asked him whether he wanted him to be his counsel, and accused-appellant said he answered in the affirmative. He said Atty. Leyva informed him of his constitutional rights. Accused-appellant claimed that, although he admitted to Mayor Abutan and Atty. Leyva the commission of the crime, this was because the police had maltreated him. Accused-appellant said he did not tell the mayor or Atty. Leyva that he had been tortured because the policemen were around and he was afraid of them. It appears that the family of accused-appellant transferred their residence to Laguna on July 12, 1999 because of fear of reprisal by residents of their barangay.xl18 According to accused-appellant, Mayor Abutan and Atty. Leyva were not present when he gave his confession to the police and signed the same. Accused-appellant claims that although Exhibit N was in his own handwriting, he merely copied the contents thereof from a pattern given to him by the police.xli19 On July 31, 2000, the trial court rendered a decision finding accused-appellant guilty of the offense charged. The dispositive portion of its decision reads: WHEREFORE, in view of all the foregoing considerations, the Court finds the accused Gerrico Vallejo y Samartino GUILTY beyond reasonable doubt of the crime of Rape with Homicide, as charged in the Information, accordingly hereby sentences him to the supreme penalty of DEATH. The accused is directed to indemnify the heirs of the victim in the amount of P100,000.00 as civil indemnity and P50,000.00 as moral damages. SO ORDERED. xlii20 Hence this appeal. Accused-appellant contends that: I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF RAPE WITH HOMICIDE DESPITE THE INSUFFICIENCY AND WEAKNESS OF THE CIRCUMSTANTIAL EVIDENCE OF THE PROSECUTION.

II. THE TRIAL COURT GRAVELY ERRED IN GIVING EVIDENTIARY WEIGHT TO THE ALLEGED ORAL CONFESSIONS OF THE ACCUSED-APPELLANT DESPITE ITS BEING HEARSAY IN NATURE. III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GIVING PROBATIVE VALUE TO THE WRITTEN EXTRA-JUDICIAL CONFESSION OF THE ACCUSED-APPELLANT DESPITE THE FACT THAT THE SAME WAS OBTAINED THROUGH FORCE AND INTIMIDATION AND THAT THE LAWYER WHO ASSISTED HIM DURING HIS CUSTODIAL INVESTIGATION DID NOT AND COULD NOT POSSIBLY GIVE HIM EFFECTIVE LEGAL ASSISTANCE. We find accused-appellant s contentions to be without merit. First. An accused can be convicted even if no eyewitness is available, provided sufficient circumstantial evidence is presented by the prosecution to prove beyond reasonable doubt that the accused committed the crime.xliii21 In rape with homicide, the evidence against an accused is more often than not circumstantial. This is because the nature of the crime, where only the victim and the rapist would have been present at the time of its commission, makes the prosecution of the offense particularly difficult since the victim could no longer testify against the perpetrator. Resort to circumstantial evidence is inevitable and to demand direct evidence proving the modality of the offense and the identity of the perpetrator is unreasonable.xliv22 Under Rule 133, section 4 of the Revised Rules on Evidence, circumstantial evidence is sufficient to sustain a conviction if: (a) (b) (c) there is more than one circumstance; the facts from which the inferences are derived are proven; and the combination of all circumstances is such as to produce conviction beyond reasonable doubt. xlv23

In the case at bar, the following circumstantial evidence establish beyond reasonable doubt the guilt of accusedappellant: 1. The victim went to Aimee Vallejo s house, where accused-appellant was residing, at 1:00 o clock in the afternoon of July 10, 1999, for tutoring. 2. At around 2:00 o clock in the afternoon, accused-appellant and Daisy went together to the latter s house to get a book from which the former could copy Daisy s school project. After getting the book, they proceeded to accusedappellant s residence. 3. From accused-appellant s house, Daisy then went to the house of Jessiemin Mataverde where she watched television. Accused-appellant thereafter arrived and whispered something to Daisy, and the latter went with him towards the compuerta. 4. At about 4:30 o clock in the afternoon, the spouses Iluminado and Charito Yepes saw accused-appellant coming out of the compuerta, with his clothes, basketball shorts, and t-shirt wet, although his face and hair were not. According to these witnesses, he looked pale, uneasy, and troubled (balisa). He kept looking around and did not even greet them as was his custom to do so. 5. The fishing boat which accused-appellant used as a bomber (a boat for catching fish with dynamite) was docked by the seashore. 6. A little before 5:00 o clock in the afternoon, Jessiemin Mataverde also saw accused-appellant buying a Marlboro cigarette from a store. Jessiemen also noticed that accused-appellant s clothes were wet but not his face nor his hair. 7. By 5:30 o clock in the afternoon, as Ma. Nida Diolola looked for her daughter, she was told by accused-appellant that Daisy had gone to her classmate Rosario s house. The information proved to be false. 8. Daisy s body was found tied to an aroma tree at the part of the river near the compuerta.

9. During the initial investigation, accused-appellant had scratches on his feet similar to those caused by the thorns of an aroma tree. 10. The clothes which accused-appellant wore the day before were bloodstained. The bloodstains on accusedappellant s clothes and on Daisy s clothes were found positive of human blood type A. 11. 12. Accused-appellant has blood type O. The vaginal swabs from Daisy s body contained her DNA profile as well as that of accused-appellant.

Accused-appellant contends that the bloodstains found on his garments were not proven to have been that of the victim as the victim s blood type was not determined. The contention has no merit. The examination conducted by Forensic Biologist Pet Byron Buan of both accusedappellant s and the victim s clothing yielded bloodstains of the same blood type A .xlvi24 Even if there was no direct determination as to what blood type the victim had, it can reasonably be inferred that the victim was blood type A since she sustained contused abrasions all over her body which would necessarily produce the bloodstains on her clothing.xlvii25 That it was the victim s blood which predominantly registered in the examination was explained by Mr. Buan, thus:xlviii26 ATTY. ESPIRITU Q: But you will agree with me that more probably than not, if a crime is being committed, and it results in a bloody death, it is very possible that the blood of the victim and the blood of the assailant might mix in that particular item like the t-shirt, shorts or pants? A: It is possible when there is a huge amount of blood coming from the victim and the suspect, Sir. It is possible. It will mix. Whichever is the dominant blood in it, it will be the one which will register. For example, if there is more blood coming from the victim, that blood will be the one to register, on occasions when the two blood mix. Q: A: But in these specimens number 1 to 5, it is very clear now that only type A and no type O blood was found? Yes, sir.

Accused-appellant also questions the validity of the method by which his bloodstained clothes were recovered. According to accused-appellant, the policemen questioned him as to the clothes he wore the day before. Thereafter, they took him to his house and accused-appellant accompanied them to the back of the house where dirty clothes were kept.xlix27 There is no showing, however, that accused-appellant was coerced or forced into producing the garments. Indeed, that the accused-appellant voluntarily brought out the clothes sought by the police becomes more convincing when considered together with his confessions. A consented warrantless search is an exception to the proscription in Section 2 of Article III of the Constitution. As we have held, the consent of the owner of the house to the search effectively removes any badge of illegality.l28 The DNA analysis conducted by NBI Forensic Chemist Aida Viloria-Magsipoc is also questioned by accused-appellant. He argues that the prosecution failed to show that all the samples submitted for DNA testing were not contaminated, considering that these specimens were already soaked in smirchy waters before they were submitted to the laboratory. DNA is an organic substance found in a person s cells which contains his or her genetic code. Except for identical twins, each person s DNA profile is distinct and unique.li29 When a crime is committed, material is collected from the scene of the crime or from the victim s body for the suspect s DNA. This is the evidence sample. The evidence sample is then matched with the reference sample taken from the suspect and the victim.lii30 The purpose of DNA testing is to ascertain whether an association exists between the evidence sample and the reference sample.liii31 The samples collected are subjected to various chemical processes to establish their profile.liv32 The test may yield three possible results:

1) The samples are different and therefore must have originated from different sources (exclusion). This conclusion is absolute and requires no further analysis or discussion; 2) It is not possible to be sure, based on the results of the test, whether the samples have similar DNA types (inconclusive). This might occur for a variety of reasons including degradation, contamination, or failure of some aspect of the protocol. Various parts of the analysis might then be repeated with the same or a different sample, to obtain a more conclusive result; or 3) The samples are similar, and could have originated from the same source (inclusion).lv33 In such a case, the samples are found to be similar, the analyst proceeds to determine the statistical significance of the Similarity.lvi34 In assessing the probative value of DNA evidence, therefore, courts should consider, among others things, the following data: 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. In the case at bar, the bloodstains taken from the clothing of the victim and of accused-appellant, the smears taken from the victim as well as the strands of hair and nails taken from her tested negative for the presence of human DNA,lvii35 because, as Ms. Viloria-Magsipoc explained: PROSECUTOR LU: Q: I noticed that specimens 1 to 5 consisting of bloodstains taken from the clothing of the victim and of the accused gave negative results for the presence of human DNA. Why is it so? What is the reason for this when there are still bloodstains on the clothing? A: After this Honorable Court issued an Order for DNA analysis, serological methods were already conducted on the said specimens. And upon inquiry from Mr. Buan and as far as he also knew of this case, and we also interviewed the mother who came over to the laboratory one time on how was the state of the specimens when they were found out. We found that these specimens were soaked in smirchy water before they were submitted to the laboratory. The state of the specimens prior to the DNA analysis could have hampered the preservation of any DNA that could have been there before. So when serological methods were done on these specimens, Mr. Byron could have taken such portion or stains that were only amenable for serological method and were not enough for DNA analysis already. So negative results were found on the clothings that were submitted which were specimens no. 1 to 5 in my report, Sir. Q: I also noticed that specimen no. 6-B consisting of the smears taken from the victim also proved negative for human DNA, why is it so? A: Because when we received the vaginal smears submitted by Dr. Vertido, the smear on the slide was very, very dry and could have chipped off. I already informed Dr. Vertido about it and he confirmed the state of the specimen. And I told him that maybe it would be the swab that could help us in this case, Sir. And so upon examination, the smears geared negative results and the swabs gave positive results, Sir. Q: How about specimen no. 7, the hair and nails taken from the victim, why did they show negative results for DNA? A: The hair samples were cut hair. This means that the hair did not contain any root. So any hair that is above the skin or the epidermis of one s skin would give negative results as the hair shaft is negative for DNA. And then the nails did not contain any subcutaneous cells that would be amenable for DNA analysis also, Sir. Q: So it s the inadequacy of the specimens that were the reason for this negative result, not the inadequacy of the examination or the instruments used? A: Yes, Sir.

Thus, it is the inadequacy of the specimens submitted for examination, and not the possibility that the samples had been contaminated, which accounted for the negative results of their examination. But the vaginal swabs taken from the

victim yielded positive for the presence of human DNA. Upon analysis by the experts, they showed the DNA profile of accused-appellant:lviii36 PROSECUTOR LU: Q: So based on your findings, can we say conclusively that the DNA profile of the accused in this case was found in the vaginal swabs taken from the victim? A: Q: A: Yes, Sir. That is very definite and conclusive? Yes, Sir."

In conclusion, we hold that the totality of the evidence points to no other conclusion than that accused-appellant is guilty of the crime charged. Evidence is weighed not counted. When facts or circumstances which are proved are not only consistent with the guilt of the accused but also inconsistent with his innocence, such evidence, in its weight and probative force, may surpass direct evidence in its effect upon the court.lix37 This is how it is in this case. Second. Accused-appellant challenges the validity of the oral and written confessions presented as evidence against him. He alleges that the oral confessions were inadmissible in evidence for being hearsay, while the extrajudicial confessions were obtained through force and intimidation. The claim is untenable. Section 12 of Art. III of the Constitution provides in pertinent parts: (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel, preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 shall be inadmissible in evidence against him. There are two kinds of involuntary or coerced confessions treated in this constitutional provision: (1) coerced confessions, the product of third degree methods such as torture, force, violence, threat, and intimidation, which are dealt with in paragraph 2 of Section 12, and (2) uncounselled statements, given without the benefit of Miranda warnings, which are the subject of paragraph 1 of the same section.lx38 Accused-appellant argues that the oral confessions given to Mayor Abutan of Rosario, Cavite and to NBI Forensic Biologist should be deemed inadmissible for being violative of his constitutional rights as these were made by one already under custodial investigation to persons in authority without the presence of counsel. With respect to the oral confessions, Atty. Leyva testified:lxi39 PROSECUTOR LU: Q: A: Q: A: Q: Upon meeting this Gerrico Vallejo at the police station were you able to confer with him? Yes, Sir. Did you ask him whether he really wants you to represent or assist him as a lawyer during that investigation? I did, as a matter of fact, I asked him whether he would like me to represent him in that investigation, Sir. And what was his answer?

A: Q:

He said yes . After agreeing to retain you as his counsel, what else did you talk about?

A: I told him that in the investigation, whatever he will state may be used against him, so it s a sort of discouraging him from making any statement to the police, Sir. Upon cross-examination, Atty. Leyva testified as follows:lxii40 Q: A: You stated that you personally read this recital of the constitutional rights of the accused? Yes, Sir.

Q: But it will appear in this recital of constitutional rights that you did not inform the accused that the statement that he will be giving might be used against him in a court of justice? A: Q: I did that, Sir. But it does not appear in this statement?

PROSECUTOR LU The best evidence will be the statement, your Honor. ATTY ESPIRITU The only thing that is stated here is that Maaaring gamitin pabor o laban sa iyo. COURT Let the witness answer. A: I told him that, as a matter of fact, and I also told him to tell the truth and nothing but the truth.

The testimony of Atty. Leyva is not only corroborated by the testimony of Mayor Renato Abutan,lxiii41 it is also confirmed by accused-appellant who testified as follows:lxiv42 ATTY. ESPIRITU: Q: Did Atty. Leyva explain to you the meaning and significance of that document which you are supposed to have executed and signed? A: Q: A: Sir. Q: A: Q: A: Yes, Sir. What did Atty. Leyva tell you? That they are allowing me to exercise my constitutional right to reveal or narrate all what I know about this case, Did Atty. Leyva tell you that if you do not want, nobody can force you to give that statement? Yes, Sir. And did he tell you that what you would be giving is an extra-judicial confession? Yes, Sir.

Clearly, accused-appellant cannot now claim that he was not apprised of the consequences of the statements he was to make as well as the written confessions he was to execute. Neither can he question the qualifications of Atty. Lupo Leyva who acted as his counsel during the investigation. To be an effective counsel, a lawyer need not challenge all the

questions being propounded to his client. The presence of a lawyer is not intended to stop an accused from saying anything which might incriminate him but, rather, it was adopted in our Constitution to preclude the slightest coercion as would lead the accused to admit something false. Indeed, counsel should not prevent an accused from freely and voluntarily telling the truth.lxv43 Indeed, accused-appellant admitted that he was first asked whether he wanted the services of Atty. Leyva before the latter acted as his defense counsel.lxvi44 And counsel who is provided by the investigators is deemed engaged by the accused where the latter never raised any objection against the former s appointment during the course of the investigation but, on the contrary, thereafter subscribed to the veracity of his statement before the swearing officer.lxvii45 Contrary to the assertions of accused-appellant, Atty. Leyva was not the municipal attorney of Rosario, Cavite but only a legal adviser of Mayor Renato Abutan.lxviii46 Accused-appellant contends that the rulings in People vs. Andanlxix47 and People vs. Mantunglxx48 do not apply to this case. We disagree. The facts of these cases and that of the case at bar are similar. In all these cases, the accused made extrajudicial confessions to the municipal mayor freely and voluntarily. In all of them, the extrajudicial confessions were held admissible in evidence, being the spontaneous, free, and voluntary admissions of the guilt of the accused. We note further that the testimony of Mayor Abutan was never objected to by the defense. Indeed, the mayor s questions to accused-appellant were not in the nature of an interrogation, but rather an act of benevolence by a leader seeking to help one of his constituents. Thus, Mayor Abutan testified:lxxi49 PROSECUTOR LU: Q: And during the conversation you had with Accused Gerrico Vallejo, what exactly did he tell you?

A: At first he said that he did not do that. That was the first thing he told me. Then I told him that I will not be able to help him if he will not tell me the truth. Q: A: Q: A: Q: A: Q: And what was the reply of the accused? He had been silent for a minute. Then we talked about the incident, Sir. And what exactly did he tell you about the incident? I asked him, Were you under the influence of drugs at that time ? What else did he tell you? I told him, What reason pushed you to do that thing? x x x Please tell us in tagalog, the exact words that the accused used in telling you what happened.

A: He told me that he saw the child as if she was headless at that time. That is why he strangled the child, Sir. ( Ang sabi niya po sa kin, nakita niya raw yung bata na parang walang ulo na naglalakad. Kaya po sinakal niya. ) xxx COURT: Q: A: Q: A: When you told the accused that you will help him, what kind of help were you thinking at that time? I told him that if he will tell the truth, I could help give him legal counsel. And what was the answer of the accused? Yes, he will tell me the truth, Your Honor. xxx xxx

In People vs. Mantung,lxxii50 this Court said:

Never was it raised during the trial that Mantung s admission during the press conference was coerced or made under duress. As the records show, accused-appellant voluntarily made the statements in response to Mayor Marquez question as to whether he killed the pawnshop employees. Mantung answered in the affirmative and even proceeded to explain that he killed the victims because they made him eat pork. These circumstances hardly indicate that Mantung felt compelled to own up to the crime. Besides, he could have chosen to remain silent or to do deny altogether any participation in the robbery and killings but he did not; thus accused-appellant sealed his own fate. As held in People v. Montiero, a confession constitutes evidence of high order since it is supported by the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and his conscience. And in People vs. Andan, it was explained: Thus, it has been held that the constitutional procedures on custodial investigation do not apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby appellant orally admitted having committed the crime. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions. The rights under Section 12 are guaranteed to preclude the slightest use of coercion by the state as would lead the accused to admit something false, not prevent him from freely and voluntarily telling the truth. lxxiii51 For the same reason, the oral confession made by accused-appellant to NBI Forensic Biologist Pet Byron Buan is admissible. Accused-appellant would have this Court exclude this confession on the ground that it was uncounselled and that Mr. Buan, who initiated the conversation with accused-appellant, was part of the NBI. The issue concerning the sufficiency of the assistance given by Atty. Leyva has already been discussed. On the other hand, the questions put by Mr. Buan to accused-appellant were asked out of mere personal curiosity and clearly not as part of his tasks. As Buan testified:lxxiv52 PROSECUTOR LU: Q: What was the subject of your conversation with him?

A: It is customary when we examine the accused. During the examination, we talk to them for me to add knowledge on the case, Sir. Q: A: Q: A: Q: A: What did you talk about during your conversation? I asked him if he was the one who did the killing on this victim, Daisy Diolola, Sir. And what was the reply of the accused? He said yes, Sir. What else did you ask the accused? I remember that while asking him, he was crying as if feeling remorse on the killing, Sir. .... Q: A: Q: A: Q: And it was you who initiated the conversation? Yes, Sir. Do you usually do that? Yes, Sir. We usually do that. Is that part of your procedure?

A: It is not SOP. But for me alone, I want to know more about the case, Sir. And any information either on the victim or from the suspect will help me personally. It s not an SOP, Sir.

The confession, thus, can be likened to one freely and voluntarily given to an ordinary individual and is, therefore, admissible as evidence. Third. The admissibility of the extrajudicial confessions of accused-appellant is also attacked on the ground that these were extracted from him by means of torture, beatings, and threats to his life. The bare assertions of maltreatment by the police authorities in extracting confessions from the accused are not sufficient. The standing rule is that where the defendants did not present evidence of compulsion, or duress nor violence on their person; where they failed to complain to the officer who administered their oaths; where they did not institute any criminal or administrative action against their alleged intimidators for maltreatment; where there appeared to be no marks of violence on their bodies; and where they did not have themselves examined by a reputable physician to buttress their claim, all these will be considered as indicating voluntariness.lxxv53 Indeed, extrajudicial confessions are presumed to be voluntary, and, in the absence of conclusive evidence showing that the declarant s consent in executing the same has been vitiated, the confession will be sustained.lxxvi54 Accused-appellant s claim that he was tortured and subjected to beatings by policemen in order to extract the said confession from him is unsupported by any proof:lxxvii55 ATTY. ESPIRITU: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: xxx Q: A: Q: A: Q: A: Q: Did they further interrogate you? Yes, sir. What else did they ask you? They were asking me the project, Sir. What else? That is the only thing, Sir. Who was doing the questioning? The investigator, Sir. How many were they inside that room? Five, Sir. They are all policemen? Yes, Sir. xxx xxx

Until what time did they keep you inside that room? Up to 11:00 in the evening, Sir. Between 10:30 in the morning up to 11:00 o clock in the evening, what did you do there? They were interrogating and forcing me to admit something, Sir. In what way did they force you to admit something? They were mauling me, Sir. The 5 of them?

A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A:

Yes, Sir. The 5 of them remained inside that room with you throughout the questioning? Yes, Sir. In what way did they hurt you? They burned my private part with a lighted cigarette butt and pierced me with a needle, Sir. Who did these things to you? Mercado, Sir. Who is this Mercado? EPZA policemen, Sir. Did the other policemen help in doing these things to you? No, Sir. Were you asked to undress or you were forced to do that? They forced me to remove my clothes, Sir. In what way did they force you to remove your clothes? They were asking me to take off the pants which I was wearing at the time, Sir. Did they do anything to you to force you to remove your pants? Yes, Sir. What? They boxed me, Sir. What else, if any? They hit me with a piece of wood, Sir. What did you feel when your private part was burned with a cigarette butt? It was painful, Sir. In what part of your body were you pricked by a needle? At my private part, Sir.

These bare assertions cannot be given weight. Accused-appellant testified that he was made to stay in the municipal hall from 10:00 o clock in the morning until 11:00 o clock that night of July 10, 1999, during which time he was boxed, tortured, and hit with a piece of wood by policemen to make him admit to the crime. However, accused-appellant was physically examined by Dr. Antonio Vertido at about 9:00 o clock in the evening of the same day. While the results show that accused-appellant did sustain injuries, the same are incompatible with his claim of torture. As Dr. Vertido testified:lxxviii56 PROSECUTOR LU: Q: What were your findings when you conducted the physical examination of the suspect?

A: I found abrasions, your Honor, abrasions on the thigh, knees, legs and feet of the suspect, and I also found hematoma on the left ring finger, posterior aspect and at the same time, a laceration on the left ring finger. xxx xxx xxx

Q: In your findings, it appears that the accused in this case suffered certain physical injuries on his person like this abrasion on the thigh, right anterior lateral aspect lower third of the knee, what could have caused this injury? A: Abrasions are usually caused when the skin comes in contact with a rough surface, Sir. Hematoma are usually caused by a blunt instrument or object and laceration is the forcible contact of the skin from that blunt object. Q: I am particularly interested in your findings hematoma on the left ring finger, posterior aspect and laceration left ring finger posterior aspect, what could have caused those injuries on the accused? A: Sir. My opinion to these hematoma and laceration found on the said left ring finger was that it was caused by a bite,

If the account of accused-appellant that he was beaten up is true, Dr. Antonio Vertido would have found more than mere abrasions and hematoma on his left finger. Dr. Vertido s findings are more consistent with the theory that accused-appellant sustained physical injuries as a result of the struggle made by the victim during the commission of the rape in the compuerta. At all events, even if accused-appellant was truthful and his assailed confessions are inadmissible, the circumstantial evidence, as already shown, is sufficient to establish his guilt beyond all reasonable doubt. The prosecution witnesses presented a mosaic of circumstances showing accused-appellant s guilt. Their testimonies rule out the possibility that the crime was the handiwork of some other evil mind. These witnesses have not been shown to have been motivated by ill will against accused-appellant. On the other hand, no other witness not related to accused-appellant was ever called to corroborate his claim. The defense presented only accused-appellant s sister, Aimee Vallejo, to corroborate his story. We have held time and again that alibi cannot prosper if it is established mainly by the accused and his relatives, and not by credible persons.lxxix57 It is well settled that alibi is the weakest of all defenses as it is easy to contrive and difficult to disprove. For this reason, this Court looks with caution upon the defense of alibi, especially when, as in this case, it is corroborated only by relatives or friends of the accused.lxxx58 Article 266-B of the Revised Penal Code provides that When by reason or on the occasion of the rape, homicide is committed, the penalty shall be death. lxxxi59 Therefore, no other penalty can be imposed on accused-appellant. WHEREFORE, in view of all the foregoing considerations, the decision of the Regional Trial Court, Branch 88, Cavite City, finding accused-appellant Gerrico Vallejo y Samartino GUILTY beyond reasonable doubt of the crime of Rape with Homicide and sentencing him to the supreme penalty of DEATH and directing him to indemnify the heirs of the victim in the amount of P100,000.00 as civil indemnity and P50,000.00 as moral damages, is hereby AFFIRMED. In accordance with Section 25 of R.A. 7659, amending Art. 83 of the Revised Penal Code, upon the finality of this decision, let the records of this case be forthwith forwarded to the President of the Philippines for the possible exercise of the pardoning power. SO ORDERED.

ROQUE V. COMELEC In a democratic system of government, the people s voice is sovereign. Corollarily, choosing through the ballots the men and women who are to govern the country is perhaps the highest exercise of democracy. It is thus the interest of the

state to insure honest, credible and peaceful elections, where the sanctity of the votes and the secrecy of the ballots are safeguarded, where the will of the electorate is not frustrated or undermined. For when the popular will itself is subverted by election irregularities, then the insidious seeds of doubt are sown and the ideal of a peaceful and smooth transition of power is placed in jeopardy. To automate, thus breaking away from a manual system of election, has been viewed as a significant step towards clean and credible elections, unfettered by the travails of the long wait and cheating that have marked many of our electoral exercises.

The Commission on Elections (Comelec), private respondents, the National Computer Center and other computer wizards are confident that nationwide automated elections can be successfully implemented. Petitioners and some skeptics in the information technology (IT) industry have, however, their reservations, which is quite understandable. To them, the automated election system and the untested technology Comelec has chosen and set in motion are pregnant with risks and could lead to a disastrous failure of elections. Comelec, they allege, would not be up to the challenge. Cheating on a massive scale, but this time facilitated by a machine, is perceived to be a real possibility.

In this petition for certiorari, prohibition and mandamus with prayer for a restraining order and/or preliminary injunction, petitioners H. Harry L. Roque, Jr., et al., suing as taxpayers and concerned citizens, seek to nullify respondent Comelec s award of the 2010 Elections Automation Project (automation project) to the joint venture of Total Information Management Corporation (TIM) and Smartmatic International Corporation (Smartmatic)1 and to permanently prohibit the Comelec, TIM and Smartmatic from signing and/or implementing the corresponding contractaward.

By Resolution2 of July 14, 2009, the Court directed the respondents as well as the University of the Philippines (UP) Computer Center, National Computer Center (NCC) and Information Technology Foundation of the Philippines (Infotech, hereinafter) to submit their collective or separate comments to the petition on or before July 24, 2009. Before any of the comments could actually be filed, Atty. Pete Quirino-Quadra sought leave to intervene. In another resolution, the Court allowed the intervention and admitted the corresponding petition-in-intervention.3

On July 29, 2009, the Court heard the principal parties in oral arguments which was followed by the submission of their and the resource persons instructive, albeit clashing, memoranda. The Senate, through the Senate President, would later join the fray via a Motion for Leave to Intervene. In a Resolution of August 25, 2009, the Court admitted the Senate s comment-in-intervention.

From the petition, the separate comments thereon, with their respective annexes, and other pleadings, as well as from admissions during the oral arguments, the Court gathers the following facts:

On December 22, 1997, Congress enacted Republic Act No. (RA) 8436 authorizing the adoption of an automated election system (AES) in the May 11, 1998 national and local elections and onwards. The 1998, 2001, and 2004 national and local polls, however, came and went but purely manual elections were still the order of the day. On January 23, 2007, the amendatory RA 93694 was passed authorizing anew the Comelec to use an AES. Of particular relevance are Sections 6 and 10 of RA 9369 originally Secs. 5 and 8, respectively of RA 8436, as amended each defining Comelec s specific mandates insofar as automated elections are concerned. The AES was not utilized in the May 10, 2000 elections, as funds were not appropriated for that purpose by Congress and due to time constraints.

RA 9369 calls for the creation of the Comelec Advisory Council5 (CAC). CAC is to recommend, among other functions, the most appropriate, applicable and cost-effective technology to be applied to the AES.6 To be created by Comelec too is the Technical Evaluation Committee (TEC)7 which is tasked to certify, through an established international certification committee, not later than three months before the elections, by categorically stating that the AES, inclusive of its hardware and software components, is operating properly and accurately based on defined and documented standards.8

In August 2008, Comelec managed to automate the regional polls in the Autonomous Region of Muslim Mindanao9 (ARMM), using direct recording electronics (DRE) technology10 in the province of Maguindanao; and the optical mark reader/recording (OMR) system, particularly the Central Count Optical Scan (CCOS),11 in the rest of ARMM.12 What scores hailed as successful automated ARMM 2008 elections paved the way for Comelec, with some prodding from senators,13 to prepare for a nationwide computerized run for the 2010 national/local polls, with the many lessons learned from the ARMM experience influencing, according to the NCC, the technology selection for the 2010 automated elections.14

Accordingly, in early March 2009, the Comelec released the Request for Proposal (RFP), also known as Terms of Reference (TOR), for the nationwide automation of the voting, counting, transmission, consolidation and canvassing of votes for the May 10, 2010 Synchronized National and Local Elections. What is referred to also in the RFP and other contract documents as the 2010 Elections Automation Project (Automation Project) consists of three elaborate components, as follows:

Component 1: Paper-Based AES.15 1-A. Election Management System (EMS); 1-B Precinct-Count Optic Scan (PCOS) 16 System and 1-C. Consolidation/Canvassing System (CCS);

Component 2: Provision for Electronic Transmission of Election Results using Public Telecommunications Network; and

Component 3: Overall Project Management

And obviously to address the possibility of systems failure, the RFP required interested bidders to submit, among other things: a continuity plan17 and a back-up plan. 18

Under the two-envelope system designed under the RFP,19 each participating bidder shall submit, as part of its bid, an Eligibility Envelope20 that should inter alia establish the bidder s eligibility to bid. On the other hand, the second envelope, or the Bid Envelope itself, shall contain two envelopes that, in turn, shall contain the technical proposal and the financial proposal, respectively.21

Subsequently, the Comelec Special Bids and Awards Committee (SBAC), earlier constituted purposely for the aforesaid project, caused the publication in different newspapers of the Invitation to Apply for Eligibility and to Bid22 for the procurement of goods and services to be used in the automation project.23 Meanwhile, Congress enacted RA 9525

appropriating some PhP 11.3 billion as supplemental budget for the May 10, 2010 automated national and local elections.

Of the ten (10) invitation-responding consortia which obtained the bid documents, only seven (7) submitted sealed applications for eligibility and bids24 which, per Bid Bulletin No. 24, were to be opened on a pre-set date, following the convening of the pre-bid conference. Under the RFP, among those eligible to participate in the bidding are manufacturers, suppliers and/or distributors forming themselves into a joint venture. A joint venture is defined as a group of two or more manufacturers, suppliers and/or distributors that intend to be jointly and severally responsible or liable for a particular contract.25

Among the submitted bids was that of the joint venture (JV) of TIM and Smartmatic, the former incorporated under the Corporation Code of the Philippines. Smartmatic, on the other hand, was organized under the laws of Barbados.26 For a stated amount, said JV proposed to undertake the whole automation project, inclusive of the delivery of 82,200 PCOS machines. After the conclusion of the eligibility evaluation process, only three consortia27 were found and thus declared as eligible. Further on, following the opening of the passing bidders Bid Envelope and evaluating the technical and financial proposals therein contained, the SBAC, per its Res. No. 09-001, s.-2009, declared the above-stated bid of the JV of TIM-Smartmatic as the single complying calculated bid.28 As required by the RFP, the bid envelope contained an outline of the joint venture s back-up and continuity or contingency plans,29 in case of a systems breakdown or any such eventuality which shall result in the delay, obstruction or nonperformance of the electoral process. After declaring TIM-Smartmatic as the best complying bidder, the SBAC then directed the joint venture to undertake post-qualification screening, and its PCOS prototype machines the Smarmatic Auditable Electronic System (SAES) 1800 to undergo end-to-end30 testing to determine compliance with the pre-set criteria.

In its Memorandum of June 01, 2009, on the Subject: Systems Evaluation Consolidated Report and Status Report on the Post-Qualification Evaluation Procedures, the SBAC Technical Working Group (TWG) stated that it was undertaking a 4day (May 27 to May 30, 2009) test evaluation of TIM and Smartmatic s proposed PCOS project machines. Its conclusion: The demo systems presented PASSED all tests as required in the 26-item criteria specified in the RFP with 100% accuracy rating.31 The TWG also validated the eligibility, and technical and financial qualifications of the TIMSmartmatic joint venture.

On June 9, 2009, Comelec, upon the recommendation of its SBAC, the CAC and other stakeholders, issued Resolution No. (Res.) 860832 authorizing the SBAC to issue, subject to well-defined conditions, the notice of award and notice to proceed in favor of the winning joint venture.

Soon after, TIM wrote Comelec expressing its desire to quit the JV partnership. In time, however, the parties were able to patch up what TIM earlier described as irreconcilable differences between partners.

What followed was that TIM and Smartmatic, pursuant to the Joint Venture Agreement (JVA),33 caused the incorporation of a joint venture corporation (JVC) that would enter into a contract with the Comelec. On July 8, 2009, the Securities and Exchange Commission issued a certificate of incorporation in favor of Smartmatic TIM Corporation. Two days after, or on July 10, 2009, Comelec and Smartmatic TIM Corporation, as provider, executed a contract34 for the lease of goods and services under the contract for the contract amount of PhP 7,191,484,739.48, payable as the

Goods and Services are delivered and/or progress is made in accordance with pre-set Schedule of Payments. 35 On the same date, a Notice to Proceed36 was sent to, and received by, Smartmatic TIM Corporation.

Meanwhile, or on July 9, 2009, petitioners interposed the instant recourse which, for all intents and purposes, impugns the validity and seeks to nullify the July 10, 2009 Comelec-Smartmatic-TIM Corporation automation contract adverted to. Among others, petitioners pray that respondents be permanently enjoined from implementing the automation project on the submission that:

PUBLIC RESPONDENTS COMELEC AND COMELEC-SBAC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN AWARDING THE 2010 ELECTIONS AUTOMATION PROJECT TO PRIVATE RESPONDENTS TIM AND SMARTMATIC FOR THE FOLLOWING REASONS:

x x x COMELEC DID NOT CONDUCT ANY PILOT TESTING OF THE x x x PCOS MACHINES OFFERED BY PRIVATE RESPONDENTS SMARTMATIC AND TIM, IN VIOLATION OF RA 8436 (AS AMENDED BY RA 9369)

THE PCOS MACHINES THUS OFFERED BY PRIVATE RESPONDENTS x x x DO NOT SATISFY THE MINIMUM SYSTEM CAPABILITIES SET BY RA NO. 8436 (AS AMENDED BY RA 9369).

PRIVATE RESPONDENTS x x x DID NOT SUBMIT THE REQUIRED DOCUMENTS DURING THE BIDDING PROCESS THAT SHOULD ESTABLISH THE DUE EXISTENCE, COMPOSITION, AND SCOPE OF THEIR JOINT VENTURE, IN VIOLATION OF THE SUPREME COURT S HOLDING IN INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, vs. COMELEC (G.R. No. 159139, Jan. 13, 2004). THERE WAS NO VALID JOINT VENTURE AGREEMENT JVA BETWEEN PRIVATE RESPONDENTS SMARTMATIC AND TIM DURING THE BIDDING, IN VIOLATION OF THE SUPREME COURT S HOLDING IN INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES vs. COMELEC x x x WHICH REQUIRES A JOINT VENTURE TO INCLUDE A COPY OF ITS JVA DURING THE BIDDING. THE ALLEGED JOINT VENTURE COMPOSED OF PRIVATE RESPONDENTS SMARTMATIC AND TIM, DOES NOT SATISFY THE SUPREME COURT S DEFINITION OF A JOINT VENTURE IN INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES vs. COMELEC x x x WHICH REQUIRES A COMMUNITY OF INTEREST IN THE PERFORMANCE OF THE SUBJECT MATTER.

Filed as it was before contract signing, the petition understandably did not implead Smartmatic TIM Corporation, doubtless an indispensable party to these proceedings, an incident that did not escape Comelec s notice.37 As a preliminary counterpoint, either or both public and private respondents question the legal standing or locus standi of petitioners, noting in this regard that the petition did not even raise an issue of transcendental importance, let alone a constitutional question. As an additional point, respondents also urge the dismissal of the petition on the ground of prematurity, petitioners having failed to avail themselves of the otherwise mandatory built-in grievance mechanism under Sec. 55 in relation to Sec. 58 of RA 9184, also known as the Government Procurement Reform Act, as shall be discussed shortly. PROCEDURAL GROUNDS

The Court is not disposed to dismiss the petition on procedural grounds advanced by respondents. Locus Standi and Prematurity It is true, as postulated, that to have standing, one must, as a rule, establish having suffered some actual or threatened injury as a result of the alleged illegal government conduct; that the injury is fairly traceable to the challenged action; and that the injury is likely to be redressed by a favorable action.38 The prescription on standing, however, is a matter of procedure. Hence, it may be relaxed, as the Court has often relaxed the rule for non-traditional plaintiffs, like ordinary citizens and taxpayers, when the public interest so requires, such as when the matter is of transcendental importance, of overarching significance to society, or of paramount public interest.39 As we wrote in Chavez v. PCGG,40 where issues of public importance are presented, there is no necessity to show that the suitor has experienced or is in actual danger of suffering direct and personal injury as the requisite injury is assumed.

Petitioners counsel, when queried, hedged on what specific constitutional proscriptions or concepts had been infringed by the award of the subject automation project to Smartmatic TIM Corporation, although he was heard to say that our objection to the system is anchored on the Constitution itself a violation sic of secrecy of voting and the sanctity of the ballot. 41 Petitioners also depicted the covering automation contract as constituting an abdication by the Comelec of its election-related mandate under the Constitution, which is to enforce and administer all laws relative to the conduct of elections. Worse still, according to the petitioners, the abdication, with its anti-dummy dimension, is in favor of a foreign corporation that will be providing the hardware and software requirements.42 And when pressed further, petitioners came out with the observation that, owing in part to the sheer length of the ballot, the PCOS would not comply with Art. V, Sec. 2 of the Constitution43 prescribing secrecy of voting and sanctity of the ballot.44

There is no doubt in our mind, however, about the compelling significance and the transcending public importance of the one issue underpinning this petition: the success and the far-reaching grim implications of the failure of the nationwide automation project that will be implemented via the challenged automation contract.

The doctrinal formulation may vary, but the bottom line is that the Court may except a particular case from the operations of its rules when the demands of justice so require.45 Put a bit differently, rules of procedure are merely tools designed to facilitate the attainment of justice.46 Accordingly, technicalities and procedural barriers should not be allowed to stand in the way, if the ends of justice would not be subserved by a rigid adherence to the rules of procedure.47 This postulate on procedural technicalities applies to matters of locus standi and the presently invoked principle of hierarchy of courts, which discourages direct resort to the Court if the desired redress is within the competence of lower courts to grant. The policy on the hierarchy of courts, which petitioners indeed failed to observe, is not an iron-clad rule. For indeed the Court has full discretionary power to take cognizance and assume jurisdiction of special civil actions for certiorari and mandamus filed directly with it for exceptionally compelling reasons48 or if warranted by the nature of the issues clearly and specifically raised in the petition.49

The exceptions that justify a deviation from the policy on hierarchy appear to obtain under the premises. The Court will for the nonce thus turn a blind eye to the judicial structure intended, first and foremost, to provide an orderly dispensation of justice. Hierarchy of Courts

At this stage, we shall dispose of another peripheral issue before plunging into the core substantive issues tendered in this petition.

Respondents contend that petitioners should have availed themselves of the otherwise mandatory protest mechanism set forth in Sections 55 and 58 of the procurement law (RA 9184) and the counterpart provisions found in its Implementing Rules and Regulations (IRR)-A before seeking judicial remedy. Insofar as relevant, Sec. 55 of RA 9184 provides that decisions of the bids and awards committee (BAC) in all stages of procurement may be protested, via a verified position paper, to the head of the procuring agency. On the other hand, the succeeding Sec. 58 states that court action may be resorted to only after the protest contemplated in Sec. 55 shall have been completed. Petitioners except. As argued, the requirement to comply with the protest mechanism, contrary to what may have been suggested in Infotech, is imposed on the bidders.50 Petitioners position is correct. As a matter of common sense, only a bidder is entitled to receive a notice of the protested BAC action. Only a losing bidder would be aggrieved by, and ergo would have the personality to challenge, such action. This conclusion finds adequate support from the ensuing provisions of the aforesaid IRR-A: 55.2. The verified position paper shall contain the following documents: a) b) The name of bidder; The office address of the bidder x x x.

SUBSTANTIVE ISSUES

We now turn to the central issues tendered in the petition which, in terms of subject matter, revolved around two concerns, viz: (1) the Joint Venture Agreement (JVA) of Smartmatic and TIM; and (2) the PCOS machines to be used. Petitioners veritably introduced another issue during the oral arguments, as amplified in their memorandum, i.e. the constitutionality and statutory flaw of the automation contract itself. The petition-in-intervention confined itself to certain features of the PCOS machines.

The Joint Venture Agreement: Its Existence and Submission

The issue respecting the existence and submission of the TIM-Smartmatic JVA does not require an extended disquisition, as repairing to the records would readily provide a satisfactory answer. We note in fact that the petitioners do not appear to be earnestly pressing the said issue anymore, as demonstrated by their counsel s practically cavalier discussion thereof during the oral argument. When reminded, for instance, of private respondents insistence on having in fact submitted their JVA dated April 23, 2009, petitioners counsel responded as follows: We knew your honor that there was, in fact, a joint venture agreement filed. However, because of the belated discovery that there were irreconcilable differences, we then made a view that this joint venture agreement was a sham, at best pro forma because it did not contain all the required stipulations in order to evidence unity of interest x x x. 51

Indeed, the records belie petitioners initial posture that TIM and Smartmatic, as joint venture partners, did not include in their submitted eligibility envelope a copy of their JVA. The SBAC s Post Qualification Evaluation Report (Eligibility) on TIM-Smartmatic, on page 10, shows the following entry: Valid Joint Venture Agreement, stating among things, that the members are jointly and severally liable for the whole obligation, in case of joint venture Documents verified compliance. 52

Contrary to what the petitioners posit, the duly notarized JVA, as couched, explained the nature and the limited purpose53 of the joint venture and expressly defined, among other things, the composition, scope, and the 60-40 capital structure of the aggroupment.54 The JVA also contains provisions on the management55 and division of profits.56 Article 357 of the JVA delineates the respective participations and responsibilities of the joint venture partners in the automation project.

Given the foregoing perspective, the Court is at a loss to understand how petitioners can assert that the Smartmatic-TIM consortium has failed to prove its joint venture existence and/or to submit evidence as would enable the Comelec to know such items as who it is dealing with, which between the partners has control over the decision-making process, the amount of investment to be contributed by each partner, the parties shares in the profits and like details. Had petitioners only bothered to undertake the usual due diligence that comes with good judgment and examined the eligibility envelope of the Smartmatic-TIM joint venture, they would have discovered that their challenge to and arguments against the joint venture and its JVA have really no factual basis.

It may be, as petitioners observed, that the TIM-Smartmatic joint venture remained an unincorporated aggroupment during the bid-opening and evaluation stages. It ought to be stressed, however, that the fact of non-incorporation was without a vitiating effect on the validity of the tender offers. For the bidding ground rules, as spelled out primarily in the RFP and the clarificatory bid bulletins, does not require, for bidding purposes, that there be an incorporation of the bidding joint ventures or consortiums. In fact, Bid Bulletin Nos. 19 and 20 recognize the existence and the acceptability of proposals of unincorporated joint ventures. In response to a poser, for example, regarding the 60% Filipino ownership requirement in a joint venture arrangement, the SBAC, in its Bid Bulletin No. 22, stated: In an unincorporated joint venture, determination of the required Filipino participation may be made by examining the terms and conditions of the JVA and other supporting financial documents submitted by the joint venture. (Emphasis ours.) Petitioners, to be sure, have not shown that incorporation is part of the pass/fail criteria used in determining eligibility.

Petitioners have made much of the Court s ruling in Information Technology Foundation of the Philippines Infotech v. Comelec,58 arguing in relation thereto that the partnership of Smartmatic and TIM does not meet the Court s definition of a joint venture which requires community of interest in the performance of the subject matter.

Petitioners invocation of Infotech is utterly misplaced. Albeit Infotech and this case are both about modernizing the election process and bidding joint ventures, the relevant parallelism ends there. Cast as they are against dissimilar factual milieu, one cannot plausibly set Infotech side with and contextually apply to this case the ratio of Infotech. Suffice it to delve on the most glaring of differences. In Infotech, the winning bid pertained to the consortium of Mega Pacific, a purported joint venture. Extant records, however, do not show the formation of such joint venture, let alone its composition. To borrow from the ponencia of then Justice, later Chief Justice, Artemio Panganiban, there is no sign whatsoever of any JVA, consortium agreement or memorandum agreement x x x executed among the members of the purported consortium. 59 There was in fine no evidence to show that the alleged joint venture partners agreed to constitute themselves into a single entity solidarily responsible for the entirety of the automation contract. Unlike the purported Mega Pacific consortium in Infotech, the existence in this case of the bidding joint venture of Smarmatic and TIM is properly documented and spread all over the bid documents. And to stress, TIM and Smartmatic, in their JVA, unequivocally agreed between themselves to perform their respective undertakings. And over and beyond their commitments to each other, they undertook to incorporate, if called for by the bidding results, a JVC that shall be solidarily liable with them for any actionable breach of the automation contract.

In Infotech, the Court chastised the Comelec for dealing with an entity, the full identity of which the poll body knew nothing about. Taking a cue from this holding, petitioners tag the TIM-Smartmatic JVA as flawed and as one that would leave the Comelec hanging for the non-inclusion, as members of the joint venture, of three IT providers. The three referred to are Jarltech International, Inc. (Jarltech), a subsidiary of Smartmatic that manufactures the Smartmatic voting machines; Dominion Voting Systems (Domino), the inventor of said PCOS machines; and 2GO Transportation System Corporation (2GO), the subcontractor responsible for the distribution of the PCOS machines throughout the country.

Petitioners beef against the TIM-Smartmatic JVA is untenable. First off, the Comelec knows the very entities whom they are dealing with, which it can hold solidary liable under the automation contract, should there be contract violation. Secondly, there is no requirement under either RA 8436, as amended, or the RFP, that all the suppliers, manufacturers or distributors involved in the transaction should be part of the joint venture. On the contrary, the Instruction to Bidders as petitioners themselves admit60 allows the bidder to subcontract portions of the goods or services under the automation project.61

To digress a bit, petitioners have insisted on the non-existence of a bona fide JVA between TIM and Smarmatic. Failing to gain traction for their indefensible posture, they would thrust on the Court the notion of an invalid joint venture due to the non-inclusion of more companies in the existing TIM-Smartmatic joint venture. The irony is not lost on the Court.

This brings us to the twin technical issues tendered herein bearing on the PCOS machines of Smartmatic.

At its most basic, the petition ascribes grave abuse of discretion to the Comelec for, among other things, awarding the automation project in violation of RA 8436, as amended. Following their line, no pilot test of the PCOS technology Smartmatic-TIM offered has been undertaken; hence, the Comelec cannot conduct a nationwide automation of the 2010 polls using the machines thus offered. Hence, the contract award to Smartmatic-TIM with their untested PCOS machines violated RA 8436, as amended by RA 9369, which mandates that with respect to the May 2010 elections and onwards, the system procured must have been piloted in at least 12 areas referred to in Sec. 6 of RA 8436, as amended. What is more, petitioners assert, private respondents PCOS machines do not satisfy the minimum system capabilities set by the same law envisaged to ensure transparent and credible voting, counting and canvassing of votes. And as earlier narrated, petitioners would subsequently add the abdication angle in their bid to nullify the automation contract.

Pilot Testing Not Necessary

Disagreeing, as to be expected, private respondents maintain that there is nothing in the applicable law requiring, as a pre-requisite for the 2010 election automation project award, that the prevailing bidder s automation system, the PCOS in this case, be subjected to pilot testing. Comelec echoes its co-respondents stance on pilot testing, with the added observation that nowhere in the statutory provision relied upon are the words pilot testing used.62 The Senate s position and its supporting arguments match those of private respondents.

The respondents thesis on pilot testing and the logic holding it together are well taken. There can be no argument about the phrase pilot test not being found in the law. But does it necessarily follow that a pilot test is absolutely not

contemplated in the law? We repair to the statutory provision petitioners cited as requiring a pilot run, referring to Sec. 6 of RA 8436, as amended by RA 9369, reading as follows:

Sec. 5. Authority to use an Automated Election System.- To carry out the above stated-policy, the Comelec, x x x is hereby authorized to use an automated election system or systems in the same election in different provinces, whether paper-based or a direct recording electronic election system as it may deem appropriate and practical for the process of voting, counting of votes and canvassing/consolidation and transmittal of results of electoral exercises: Provided, that for the regular national and local elections, which shall be held immediately after the effectivity of this Act, the AES shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas, and Mindanao to be chosen by the Comelec: Provided, further, That local government units whose officials have been the subject of administrative charges within sixteen (16) month prior to the May 14, 2007 elections shall not be chosen. Provided, finally, That no area shall be chosen without the consent of the Sanggunian of the local government unit concerned. The term local government unit as used in this provision shall refer to a highly urbanized city or province. In succeeding regular national or local elections, the AES shall be implemented. (Emphasis and underscoring added.)

RA 9369, which envisages an AES, be it paper-based or direct-recording electronic, took effect in the second week of February 2007 or thereabout.63 The regular national and local elections referred to after the effectivity of this Act can be no other than the May 2007 regular elections, during which time the AES shall, as the law is worded, be used in at least two highly urbanized cities and provinces in Luzon, Visayas and Mindanao. The Court takes judicial notice that the May 2007 elections did not deploy AES, evidently due to the mix of time and funding constraints. To the petitioners, the underscored portion of the aforequoted Sec. 6 of RA 8436 is the pilot-testing provision that Comelec failed to observe. We are not persuaded. From the practical viewpoint, the pilot testing of the technology in question in an actual, scheduled electoral exercise under harsh conditions would have been the ideal norm in computerized system implementation. The underscored proviso of Sec. 6 of RA 8436 is not, however, an authority for the proposition that the pilot testing of the PCOS in the 2007 national elections in the areas thus specified is an absolute must for the machines use in the 2010 national/local elections. The Court can concede that said proviso, with respect to the May 2007 elections, commands the Comelec to automate in at least 12 defined areas of the country. But the bottom line is that the required 2007 automation, be it viewed in the concept of a pilot test or not, is not a mandatory requirement for the choice of system in, or a prerequisite for, the full automation of the May 2010 elections.

As may be noted, Sec. 6 of RA 8436 may be broken into three essential parts, the first partaking of the nature of a general policy declaration: that Comelec is authorized to automate the entire elections. The second part states that for the regular national and local elections that shall be held in May 2007, Comelec shall use the AES, with an option, however, to undertake automation, regardless of the technology to be selected, in a limited area or, to be more precise, in at least two highly urbanized cities and two provinces each in Luzon, Visayas, and Mindanao to be chosen by the Comelec. On the other hand, the last part, phrased sans reference to the May 2007 elections, commands thus: In succeeding regular national or local elections, the automated election system shall be implemented. Taken in its proper context, the last part is indicative of the legislative intent for the May 2010 electoral exercise to be fully automated, regardless of whether or not pilot testing was run in the 2007 polls.

To argue that pilot testing is a condition precedent to a full automation in 2010 would doubtless undermine the purpose of RA 9369. For, as aptly observed during the oral arguments, if there was no political exercise in May 2007, the country would theoretically be barred forever from having full automation.

Sec. 6 of the amended RA 8436, as couched, therefore, unmistakably conveys the idea of unconditional full automation in the 2010 elections. A construal making pilot testing of the AES a prerequisite or condition sine qua non to putting the system in operation in the 2010 elections is tantamount to reading into said section something beyond the clear intention of Congress, as expressed in the provision itself. We reproduce with approval the following excerpts from the comment of the Senate itself: The plain wordings of RA 9369 (that amended RA 8436) commands that the 2010 elections shall be fully automated, and such full automation is not conditioned on pilot testing in the May 2007 elections. Congress merely gave COMELEC the flexibility to partially use the AES in some parts of the country for the May 2007 elections.64 Lest it be overlooked, an AES is not synonymous to and ought not to be confused with the PCOS. Sec. 2(a) of RA 8436, as amended, defines an AES as a system using appropriate technology which has been demonstrated in the voting, counting, consolidating, canvassing and transmission of election results, and other electoral processes. On the other hand, PCOS refers to a technology wherein an optical ballot scanner, into which optical scan paper ballots marked by hand by the voter are inserted to be counted.65 What may reasonably be deduced from these definitions is that PCOS is merely one of several automated voting, counting or canvassing technologies coming within the term AES, implying in turn that the automated election system or technology that the Comelec shall adopt in future elections need not, as a matter of mandatory arrangement, be piloted in the adverted two highly urbanized cities and provinces. In perspective, what may be taken as mandatory prerequisite for the full automation of the 2010 regular national/ local elections is that the system to be procured for that exercise be a technology tested either here or abroad. The ensuing Section 8 of RA 8436, as amended, says so.

SEC 12. Procurement of Equipment and Materials. To achieve the purpose of this Act, the Commission is authorized to procure, xxx, by purchase, lease, rent or other forms of acquisition, supplies, equipment, materials, software, facilities, and other services, from local or foreign sources xxx. With respect to the May 10, 2010 elections and succeeding electoral exercises, the system procured must have demonstrated capability and been successfully used in prior electoral exercise here or abroad. Participation in the 2007 pilot exercise shall not be conclusive of the system s fitness. (Emphasis supplied). While the underscored portion makes reference to a 2007 pilot exercise, what it really exacts is that, for the automation of the May 2010 and subsequent elections, the PCOS or any AES to be procured must have demonstrated its capability and success in either a local or a foreign electoral exercise. And as expressly declared by the provision, participation in the 2007 electoral exercise is not a guarantee nor is it conclusive of the system s fitness. In this regard, the Court is inclined to agree with private respondents interpretation of the underscored portion in question: The provision clearly conveys that the AES to be used in the 2010 elections need not have been used in the 2007 elections, and that the demonstration of its capability need not be in a previous Philippine election. Demonstration of the success and capability of the PCOS may be in an electoral exercise in a foreign jurisdiction. 66 As determined by the Comelec, the PCOS system had been successfully deployed in previous electoral exercises in foreign countries, such as Ontario, Canada; and New York, USA,67 albeit Smartmatic was not necessarily the system provider. But then, RA 9369 does not call for the winning bidder of the 2010 automation project and the deploying entity/provider in the foreign electoral exercise to be one and the same entity. Neither does the law incidentally require that the system be first used in an archipelagic country or with a topography or a voting population similar to or approximating that of the Philippines.

At any event, any lingering doubt on the issue of whether or not full automation of the 2010 regular elections can validly proceed without a pilot run of the AES should be put to rest with the enactment in March 2009 of RA 9525,68 in which Congress appropriated PhP 11.301 billion to automate the 2010 elections, subject to compliance with the transparency and accuracy requirements in selecting the relevant technology of the machines, thus:

Sec. 2. Use of Funds. x x x Provided, however, That disbursement of the amounts herein appropriated or any part thereof shall be authorized only in strict compliance with the Constitution, the provisions of RA No. 9369 and other election laws incorporated in said Act as to ensure the conduct of a free, orderly, clean, honest and credible election and shall adopt such measures that will guaranty transparency and accuracy in the selection of the relevant technology of the machines to be used on May 10, 2010 automated national and local elections. (Emphasis added.)

It may safely be assumed that Congress approved the bill that eventually became RA 9525, fully aware that the system using the PCOS machines were not piloted in the 2007 electoral exercise. The enactment of RA 9525 is to us a compelling indication that it was never Congress intent to make the pilot testing of a particular automated election system in the 2007 elections a condition precedent to its use or award of the 2010 Automation Project. The commentin-intervention of the Senate says as much.

Further, the highly charged issue of whether or not the 2008 ARMM elections covering, as NCC observed, three conflict-ridden island provinces may be treated as substantial compliance with the pilot test requirement must be answered in the affirmative. No less than Senator Richard J. Gordon himself, the author of the law, said that the system has been tried and tested in the ARMM elections last year, so we have to proceed with the total implementation of the law. 69

We note, though, the conflicting views of the NCC70 and ITFP71 on the matter. Suffice it to state at this juncture that the system used in the 2008 ARMM election exercise bears, as petitioners to an extent grudgingly admit, 72 a similarity with the PCOS. The following, lifted from the Comelec s comment, is to us a fair description of how the two systems (PCOS and CCOS) work and where the difference lies: xxx the elections in the ARMM utilized the Counting Center Optical Scan (CCOS), a system which uses the Optical Mark Reader (OMR), the same technology as the PCOS. Under the CCOS, the voters cast their votes by shading or marking the circles in the paper ballots which corresponded to the names of their chosen candidates like in PCOS. Thereafter, the ballot boxes were brought to the counting centers where they were scanned, counted and canvassed. xxx Under the PCOS, the counting, consolidation and canvassing of the votes are done at the precinct level. The election results at the precincts are then electronically transmitted to the next level, and so on. xxx PCOS dispenses with the physical transportation of ballot boxes from the precincts to the counting centers.73 Moreover, it has been proposed that a partial automation be implemented for the May 2010 elections in accordance with Section 5 of RA 8436, as amended by RA 9369 instead of full automation. The Court cannot agree as such proposition has no basis in law. Section 5, as worded, does not allow for partial automation. In fact, Section 5 clearly states that the AES shall be implemented nationwide. 74 It behooves this Court to follow the letter and intent of the law for full automation in the May 2010 elections. PCOS Meets Minimum Capabilities Standards As another ground for the nullification of the automation contract, petitioners posit the view that the PCOS machines do not satisfy the minimum system capabilities prescribed by RA 8436, as amended. To a specific point, they suggest that the PCOS system offered and accepted lacks the features that would assure accuracy in the recording and reading of votes, as well as in the tabulation, consolidation/canvassing, electronic transmission, storage results and accurate ballot counting.75 In this particular regard, petitioners allege that, based on Smartmatic s website, the PCOS has a margin of error of from 2% to 10%, way beyond that of the required 99.99% accuracy in the counting of votes.76

The minimum system capabilities provision cited is Sec. 7 of RA 8436, as amended, and the missing features referred to by petitioners are pars. (b) and (j). In full, Sec. 7 of RA 8436, as amended, reads:

SEC. 6. Minimum System Capabilities. - The automated election capabilities:

system must at least have the following functional

(a) Adequate security against unauthorized access; (b) Accuracy in recording and reading of votes as well as in the tabulation, consolidation/canvassing, electronic transmission, and storage of results; (c) Error recovery in case of non-catastrophic failure of device; (d) System integrity which ensures physical stability and functioning of the vote recording and counting process; (e) Provision for voter verified paper audit trail; (f) System auditability which provides supporting documentation for verifying the correctness of reported election results; (g) An election management system for preparing ballots and programs for use in the casting and counting of votes and to consolidate, report and display election result in the shortest time possible; (h) Accessibility to illiterates and disabled voters; (i) (j) Vote tabulating program for election, referendum or plebiscite; Accurate ballot counters;

(k) Data retention provision; (l) Provide for the safekeeping, storing and archiving of physical or paper resource used in the election process;

(m) Utilize or generate official ballots as herein defined; (a) Provide the voter a system of verification to find out whether or not the machine has registered his choice; and (o) Configure access control for sensitive system data and function.

In the procurement of this system, the Commission shall develop and adopt an evaluation system to ascertain that the above minimum system capabilities are met. The evaluation system shall be developed with the assistance of an advisory council.

From the records before us, the Court is fairly satisfied that the Comelec has adopted a rigid technical evaluation mechanism, a set of 26-item/check list criteria, as will be enumerated shortly, to ensure compliance with the above minimum systems capabilities.

The SBAC Memorandum77 of June 03, 2009, as approved by Comelec Res. 8608,78 categorically stated that the SBAC-TWG submitted its report that TIM/Smartmatic s proposed systems and machines PASSED all the end-to-end

demo tests using the aforementioned 26-item criteria, inclusive of the accuracy rating test of at least 99.955%. As appearing in the SBAC-TWG report, the corresponding answers/remarks to each of the 26 individual items are as herein indicated:79

ITEM

REQUIREMENT

REMARK/DESCRIPTION

Does the system allow manual feeding of Yes. The proposed PCOS machine accepted a ballot into the PCOS machine? the test ballots which were manually fed one at a time. Does the system scan a ballot sheet at Yes. A 30-inch ballot was used in this test. the speed of at least 2.75 inches per Scanning the 30-inch ballot took 2.7 second? seconds, which translated to 11.11inches per second. Is the system able to capture and store in an encrypted format the digital images of the ballot for at least 2,000 ballot sides (1,000 ballots, with back to back printing)? Yes the system captured the images of the 1,000 ballots in encrypted format. Each of the 1,000 images files contained the images of the front and back sides of the ballot, totaling to 2,000 ballot side.

To verify the captured ballot images, decrypted copies of the encrypted files were also provided. The same were found to be digitized representations of the ballots cast. 4 Is the system a fully integrated single Yes. The proposed PCOS is a fully device as described in item no. 4 of integrated single device, with built-in Component 1-B? printer and built-in data communications ports (Ethernet and USB). Does the system have a scanning Yes. A portion of a filled up marked oval resolution of at least 200 dpi? was blown up using image editor software to reveal the number of dots per inch. The sample image showed 200 dpi.

File properties of the decrypted image file also revealed 200 dpi. 6 Does the system scan in grayscale? Yes. 30 shades of gray were scanned in the test PCOS machine, 20 of which were required, exceeding the required 4-bit/16 levels of gray as specified in the Bid Bulletin No. 19.

Does the system require authorization Yes. The system required the use of a

and authentication of all operators, such security key with different sets of as, but not limited to, usernames and passwords/PINs for Administrator and passwords, with multiple user access Operator users. levels? 8 Does the system have an electronic Yes. The PCOS machine makes use of an display? LCD display to show information:

if a ballot may be inserted into the machine; if a ballot is being processed; if a ballot is being rejected; on other instructions and information to the voter/operator. 9 Does the system employ error handling procedures, including, but not limited to, the use of error prompts and other related instructions? Yes. The PCOS showed error messages on its screen whenever a ballot is rejected by the machine and gives instructions to the voter on what to do next, or when there was a ballot jam error.

10

Does the system count the voter s vote as Yes. The two rounds of tests were marked on the ballot with an accuracy conducted for this test using only valid rating of at least 99.995%? marks/shades on the ballots. 20,000 marks were required to complete this test, with only one (1) allowable reading error.

625 ballots with 32 marks each were used for this test. During the comparison of the PCOS-generated results with the manually prepared/predetermined results, it was found out that there were seven (7) marks which were inadvertently missed out during ballot preparation by the TWG. Although the PCOS-generated results turned out to be 100% accurate, the 20,000-mark was not met thereby requiring the test to be repeated.

To prepare for other possible missed out marks,650 ballots with (20,800 marks) were used for the next round of test, which also yielded 100% accuracy. 11 Does the system detect and reject fake or Yes. This test made use of one (1) spurious, and previously scanned ballots? photocopied ballot and one (1) recreated ballot. Both were rejected by the

PCOS. 12 Does the system scan both sides of a Yes. Four (4) ballots with valid marks were ballot and in any orientation in one pass? fed into the PCOS machine in the four (4) portrait orientations specified in Bid Bulletin No. 4 (either back or front, upside down or right side up), and all were accurately captured. Does the system have necessary Yes. The system was able to recognize if the safeguards to determine the authenticity security features on the ballot are of a ballot, such as, but not limited to, the missing . use of bar codes, holograms, color shifting ink, micro printing, to be provided on the ballot, which can be Aside from the test on the fake or spurious recognized by the system? ballots (Item No. 11), three (3) test ballots with tampered bar codes and timing marks were used and were all rejected by the PCOS machine.

13

The photocopied ballot in the test for Item No. 11 was not able to replicate the UV ink pattern on top portion of the ballot causing the rejection of the ballot. 14 Are the names of the candidates pre- Yes. The Two sample test ballots of printed on the ballot? different lengths were provided: one (1) was 14 inches long while the other was 30 inches long. Both were 8.5 inches wide.

The first showed 108 pre-printed candidate names for the fourteen (14) contests/positions, including two (2) survey questions on gender and age group, and a plebiscite question.

The other showed 609 pre-printed candidate names, also for fourteen (14) positions including three (3) survey questions. 15 Does each side of the ballot sheet accommodate at least 300 names of candidates with a minimum font size of 10, in addition to other mandatory information required by law? Yes. The 30-inch ballot, which was used to test Item No. 2, contained 309 names for the national positions and 300 names for local positions. The total pre-printed names on the ballot totaled 609.

This type of test ballot was also used for test voting by the public, including members of the media.

Arial Narrow, font size 10, was used in the printing of the candidate names. 16 Does the system recognize full shade marks on the appropriate space on the ballot opposite the name of the candidate to be voted for? Yes. The ballots used for the accuracy test (Item No. 10), which made use of full shade marks, were also used in this test and were accurately recognized by the PCOS machine.

17

Does the system recognize partial shade Yes. Four (4) test ballots were used with marks on the appropriate space on the one (1) mark each per ballot showing the ballot opposite the name of the following pencil marks: candidate to be voted for? top half shade; bottom half shade; left half shade; and right half shade

These partial shade marks were all recognized by the PCOS machine 18 Does the system recognize check Yes. One (1) test ballot with one check () ()marks on the appropriate space on mark, using a pencil, was used for this test. the ballot opposite the name of the candidate to be voted for? The mark was recognized successfully. 19 Does the system recognize x marks on Yes. One (1) test ballot with one x mark, the appropriate space on the ballot using a pencil, was used for this test. opposite the name of the candidate to be voted for? The mark was recognized successfully. 20 Does the system recognize both pencil Yes. The 1000 ballots used in the accuracy and ink marks on the ballot? test (Item No. 10) were marked using the proposed marking pen by the bidder.

A separate ballot with one (1) pencil mark was also tested. This mark was also recognized by the PCOS machine. Moreover, the tests for Items No. 17, 18

and 19 were made using pencil marks on the ballots. 21 In a simulation of a system shut down, Yes. Five (5) ballots were used in this test. does the system have error recovery The power cord was pulled from the PCOS features? while the 3rd ballot was in the middle of the scanning procedure, such that it was left hanging in the ballot reader.

After resumption of regular power supply, the PCOS machine was able to restart successfully with notification to the operator that there were two (2) ballots already cast in the machine. The hanging 3rd ballot was returned to the operator and was able to be re-fed into the PCOS machine. The marks on all five (5) were all accurately recognized.

22

Does the system have transmission and Yes. The PCOS was able to transmit to the consolidation/canvassing capabilities? CCS during the end-to-end demonstration using GLOBE prepaid Internet kit. Does the system generate a backup copy Yes. The PCOS saves a backup copy of the of the generated reports, in a removable ERs, ballot images, statistical report and data storage device? audit log into a Compact Flash (CF) Card. Does the system have alternative power Yes. A 12 bolt 18AH battery lead acid was sources, which will enable it to fully used in this test. The initial test had to be repeated due to a short circuit, after seven operate for at least 12 hours? (7) hours from start-up without ballot scanning. This was explained by TIMSmartmatic to be caused by noncompatible wiring of the battery to the PCOS. A smaller wire than what is required was inadvertently used, likening the situation to incorrect wiring of a car battery. Two (2) COMELEC electricians were called to confirm TIM-Smartmatic s explanation. The PCOS machine was connected to regular power and started successfully. The following day, the retest was completed in 12 hours and 40 minutes xxx 984 ballots were fed into the machine. The ER, as generated by the PCOS was compared with predetermined result, showed 100% accuracy. Is the system capable of generating and Yes. The PCOS prints reports via its built-in printing reports? printer which includes:

23

24

25

1. Initialization Report; 2. Election Returns (ER); 3. PCOS Statistical Report; 4. Audit Log. 26 Did the bidder successfully demonstrate Yes. An end-to-end demonstration of all EMS, voting counting, proposed systems was presented covering: consolidation/canvassing and importing of election data into the EMS; transmission? creation of election configuration data for the PCOS and the CCS using EMS; creation of ballot faces using EMS; configuring the PCOS and the CCS using the EMS-generated election configuration file; initialization, operation, generation of reports and backup using the PCOS; electronic transmission of results to the: 1 from the PCOS to city/municipal CCS and the central server. 2 from the city/municipal CCS to the provincial CCS. 3 from the provincial CCS to the national CCS; receipt and canvass of transmitted results: 1 by the city/municipal CCS from the PCOS. 2 by the provincial CCS from the city/municipal CCS. 3 by the national CCS from the provincial CCS; receipt of the transmittal results by the central server from the PCOS.

Given the foregoing and absent empirical evidence to the contrary, the Court, presuming regularity in the performance of regular duties, takes the demo-testing thus conducted by SBAC-TWG as a reflection of the capability of the PCOS machines, although the tests, as Comelec admits,80 were done literally in the Palacio del Governador building, where a room therein simulated a town, the adjoining room a city, etc. Perusing the RFP, however, the real worth of the PCOS system and the machines will of course come after they shall have been subjected to the gamut of acceptance tests expressly specified in the RFP, namely, the lab test, field test, mock election test, transmission test and, lastly, the final test and sealing procedure of all PCOS and CCS units using the actual Election Day machine configuration.81

Apropos the counting-accuracy feature of the PCOS machines, petitioners no less impliedly admit that the web page they appended to their petition, showing a 2% to 10% failing rate, is no longer current.82 And if they bothered to examine the current website of Smartmatic specifically dealing with its SAES 1800, the PCOS system it offered, they would have readily seen that the advertised accuracy rating is over 99.99999%. 83 Moreover, a careful scrutiny of the old webpage of Smarmatic reveals that the 2% to 10% failure rate applied to optical scanners and not to SAES. Yet the same page discloses that the SAES has 100% accuracy. Clearly, the alleged 2% to 10% failing rate is now irrelevant and the Court need not belabor this and the equally irrelevant estoppel principle petitioners impose on us.

Intervenor Cuadra s concern relates to the auditability of the election results. In this regard, it may suffice to point out that PCOS, being a paper-based technology, affords audit since the voter would be able, if need be, to verify if the machine had scanned, recorded and counted his vote properly. Moreover, it should also be noted that the PCOS machine contains an LCD screen, one that can be programmed or configured to display to the voter his votes as read by the machine. 84 No Abdication of Comelec s Mandate and Responsibilty

As a final main point, petitioners would have the Comelec-Smartmatic-TIM Corporation automation contract nullified since, in violation of the Constitution, it constitutes a wholesale abdication of the poll body s constitutional mandate for election law enforcement. On top of this perceived aberration, the mechanism of the PCOS machines would infringe the constitutional right of the people to the secrecy of the ballot which, according to the petitioners, is provided in Sec. 2, Art. V of the Constitution.85

The above contention is not well taken.

The first function of the Comelec under the Constitution86 and the Omnibus Election Code for that matter relates to the enforcement and administration of all laws and regulations relating to the conduct of elections to public office to ensure a free, orderly and honest electoral exercise. And how did petitioners come to their conclusion about their abdication theory? By acceding to Art. 3.3 of the automation contract, Comelec relinquished, so petitioners claim, supervision and control of the system to be used for the automated elections. To a more specific point, the loss of control, as may be deduced from the ensuing exchanges, arose from the fact that Comelec would not be holding possession of what in IT jargon are the public and private keys pair.

CHIEF JUSTICE: Well, more specifically are you saying that the main course of this lost of control is the fact that SMARTMATIC holds the public and private keys to the sanctity of this system? ATTY. ROQUE: Yes, Your Honor, as well as the fact that they control the program embedded in the key cost that will read their votes by which the electorate may verify that their votes were counted. CHIEF JUSTICE: You are saying that SMARTMATIC and not its partner TIM who hold these public and private keys? ATTY. ROQUE: Yes, Your Honor.

The Court is not convinced. There is to us nothing in Art 3.3 of the automation contract, even if read separately from other stipulations and the provisions of the bid documents and the Constitution itself, to support the simplistic conclusion of abdication of control pressed on the Court. Insofar as pertinent, Art 3.3 reads:

3.3 The PROVIDER shall be liable for all its obligations under this Project and the performance of portions thereof by other persons or entities not parties to this Contract shall not relieve the PROVIDER of said obligations and concomitant liabilities. SMARTMATIC, as the joint venture partner with the greater track record in automated elections, shall be in charge of the technical aspects of the counting and canvassing software and hardware, including transmission configuration and system integration. SMARTMATIC shall also be primarily responsible for preventing and troubleshooting technical problems that may arise during the elections. (Emphasis added.)

The proviso designating Smartmatic as the joint venture partner in charge of the technical aspect of the counting and canvassing wares does not to us translate, without more, to ceding control of the electoral process to Smartmatic. It bears to stress that the aforesaid designation of Smartmatic was not plucked from thin air, as it was in fact an eligibility

requirement imposed, should the bidder be a joint venture. Part 5, par. 5.4 (e) of the Instruction to Bidders on the subject Eligible Bidders, whence the second paragraph of aforequoted Art. 3.3 came from, reads:

5.4 A JV of two or more firms as partners shall comply with the following requirements. xxxx (e) The JV member with a greater track record in automated elections, shall be in-charge of the technical aspects of the counting and canvassing software and hardware, including transmission configuration and system integration

And lest it be overlooked, the RFP, which forms an integral part of the automation contract,87 has put all prospective bidders on notice of Comelec s intent to automate and to accept bids that would meet several needs, among which is a complete solutions provider which can provide effective overall nationwide project management service under COMELEC supervision and control, to ensure effective and successful implementation of the automation Project. 88 Complementing this RFP advisory as to control of the election process is Art. 6.7 of the automation contract, providing:

6.7 Subject to the provisions of the General Instructions to be issued by the Commission En Banc, the entire processes of voting, counting, transmission, consolidation and canvassing of votes shall be conducted by COMELEC s personnel and officials, and their performance, completion and final results according to specifications and within the specified periods shall be the shared responsibility of COMELEC and the PROVIDER. (Emphasis added.)

But not one to let an opportunity to score points pass by, petitioners rhetorically ask: Where does Public Respondent Comelec intend to get this large number of professionals, many of whom are already gainfully employed abroad? 89 The Comelec, citing Sec. 390 and Sec. 5 of RA 8436,91 as amended, aptly answered this poser in the following wise: x x x Public respondent COMELEC, in the implementation of the automated project, will forge partnerships with various entities in different fields to bring about the success of the 2010 automated elections. Public respondent COMELEC will partner with Smartmatic TIM Corporation for the training and hiring of the IT personnel as well as for the massive voter-education campaign. There is in fact a budget allocation x x x for these undertakings. x x x As regards the requirement of RA 9369 that IT-capable personnel shall be deputized as a member of the BEI and that another IT-capable person shall assist the BOC, public respondent COMELEC shall partner with DOST and other agencies and instrumentalities of the government.

In not so many words during the oral arguments and in their respective Memoranda, public and private respondents categorically rejected outright allegations of abdication by the Comelec of its constitutional duty. The petitioners, to stress, are strangers to the automation contract. Not one participated in the bidding conference or the bidding proper or even perhaps examined the bidding documents and, therefore, none really knows the real intention of the parties. As case law tells us, the court has to ferret out the real intent of the parties. What is fairly clear in this case, however, is that petitioners who are not even privy to the bidding process foist upon the Court their own view on the stipulations of the automation contract and present to the Court what they think are the parties true intention. It is a study of outsiders appearing to know more than the parties do, but actually speculating what the parties intended. The following is self-explanatory:

CHIEF JUSTICE: Why did you say that it did not, did you talk with the Chairman and Commissioners of COMELEC that they failed to perform this duty, they did not exercise this power of control? ATTY. ROQUE : Your Honor, I based it on the fact that it was the COMELEC in fact that entered into this contract . CHIEF JUSTICE : Yes, but my question is control in over our election process? did you confront the COMELEC officials that they forfeited their power of

ATTY. ROQUE : We did not confront, your Honor. We impugned their acts, Your Honor.92 Just as they do on the issue of control over the electoral process, petitioners also anchor on speculative reasoning their claim that Smartmatic has possession and control over the public and private keys pair that will operate the PCOS machines. Consider: Petitioners counsel was at the start cocksure about Smartmatic s control of these keys and, with its control, of the electoral process.93

Several questions later, his answers had a qualifying tone:

JUSTICE NACHURA: And can COMELEC under the contract not demand that it have access, that it be given access to and in fact generate its own keys independently with SMARTMATIC so that it would be COMELEC and not SMARTMATIC that would have full control of the technology insofar as the keys are concerned xxx?

ATTY. ROQUE: I do not know if COMELEC will be in a position to generate these keys, xxx. 94

And subsequently, the speculative nature of petitioners position as to who would have possession and control of the keys became apparent.

CHIEF JUSTICE: Yes, but did you check with the COMELEC who will be holding these two keys x x x did you check with COMELEC whether this system is correct?

ATTY.ROQUE: We have not had occasion to do so, x x x Your Honor.

xxxx

CHIEF JUSTICE: Why do you make that poor conclusion against the COMELEC x x x May not the COMELEC hire the services of experts in order for the institution to be able to discharge its constitutional functions?

ATTY. ROQUE: That is true, but x x x there is too much reliance on individuals who do not have the same kind of accountability as public officers x x x

CHIEF JUSTICE: Are you saying that the COMELEC did not consult with available I.T. experts in the country before it made the bidding rules before it conducted the bidding and make the other policy judgments?

ATTY. ROQUE: Your Honor, what I am sure is that they did not confer with the I.T. Foundation x x x. CHIEF JUSTICE: But is that foundation the only expert, does it have a monopoly of knowledge?95

The Court, to be sure, recognizes the importance of the vote-security issue revolving around the issuance of the public and private keys pair to the Board of Election Inspectors, including the digital signatures. The NCC comment on the matter deserves mention, appearing to hew as it does to what appear on the records. The NCC wrote:

The RFP/TOR used in the recent bidding for the AES to be used in the 2010 elections specifically mandated the use of public key cryptography. However, it was left to the discretion of the bidder to propose an acceptable manner of utilization for approval/acceptance of the Comelec. Nowhere in the RFP/TOR was it indicated that COMELEC would delegate to the winning bidder the full discretion, supervision and control over the manner of PKI Public Key Infrastructure utilization.

With the view we take of the automation contract, the role of Smartmatic TIM Corporation is basically to supply the goods necessary for the automation project, such as but not limited to the PCOS machines, PCs, electronic transmission devices and related equipment, both hardware and software, and the technical services pertaining to their operation. As lessees of the goods and the back-up equipment, the corporation and its operators would provide assistance with respect to the machines to be used by the Comelec which, at the end of the day, will be conducting the election thru its personnel and whoever it deputizes.

And if only to emphasize a point, Comelec s contract is with Smartmatic TIM Corporation of which Smartmatic is a 40% minority owner, per the JVA of TIM and Smartmatic and the Articles of Incorporation of Smartmatic TIM Corporation. Accordingly, any decision on the part or on behalf of Smartmatic will not be binding on Comelec. As a necessary corollary, the board room voting arrangement that Smartmatic and TIM may have agreed upon as joint venture partners, inclusive of the veto vote that one may have power over the other, should really be the least concern of the Comelec.

Parenthetically, the contention that the PCOS would infringe on the secrecy and sanctity of the ballot because, as petitioners would put it, the voter would be confronted with a three feet long ballot,96 does not commend itself for concurrence. Surely, the Comelec can put up such infrastructure as to insure that the voter can write his preference in relative privacy. And as demonstrated during the oral arguments, the voter himself will personally feed the ballot into

the machine. A voter, if so minded to preserve the secrecy of his ballot, will always devise a way to do so. By the same token, one with least regard for secrecy will likewise have a way to make his vote known.

During the oral arguments, the notion of a possible violation of the Anti-Dummy Law cropped up, given the RFP requirement of a joint venture bidder to be at least be 60% Filipino. On the other hand, the winning bidder, TIMSmartmatic joint venture, has Smartmatic, a foreign corporation, owning 40% of the equity in, first, the joint venture partnership, and then in Smartmatic TIM Corporation.

The Anti-Dummy Law97 pertinently states:

Section 1. Penalty. In all cases in which any constitutional or legal provision requires Philippine or any other specific citizenship as a requisite for the exercise or enjoyment of a right, franchise or privilege, any citizen of the Philippines or of any other specific country who allows his name or citizenship to be used for the purpose of evading such provision, and any alien or foreigner profiting thereby, shall be punished by imprisonment xxx and by a fine xxx.

SECTION 2. Simulation of minimum capital stock In all cases in which a constitutional or legal provision requires that a corporation or association may exercise or enjoy a right, franchise or privilege, not less than a certain per centum of its capital must be owned by citizens of the Philippines or any other specific country, it shall be unlawful to falsely simulate the existence of such minimum stock or capital as owned by such citizen for the purpose of evading such provision. xxx

SECTION 2-A. Unlawful use, Exploitation or Enjoyment. Any person, corporation, or association which, having in its name or under its control, a right, franchise, privilege, property or business, the exercise or enjoyment of which is expressly reserved by the Constitution or the laws to citizens of the Philippines or of any other specific country, or to corporations or associations at least sixty per centum of the capital of which is owned by such citizens, permits or allows the use, exploitation or enjoyment thereof by a person, corporation, or association not possessing the requisites prescribed by the Constitution or the laws of the Philippines; or leases, or in any other way, transfers or conveys said right, franchise, privilege, property or business to a person, corporation or association not otherwise qualified under the Constitution xxx shall be punished by imprisonment xxx (Emphasis added.)

The Anti-Dummy Law has been enacted to limit the enjoyment of certain economic activities to Filipino citizens or corporations. For liability for violation of the law to attach, it must be established that there is a law limiting or reserving the enjoyment or exercise of a right, franchise, privilege, or business to citizens of the Philippines or to corporations or associations at least 60 per centum of the capital of which is owned by such citizens. In the case at bench, the Court is not aware of any constitutional or statutory provision classifying as a nationalized activity the lease or provision of goods and technical services for the automation of an election. In fact, Sec. 8 of RA 8436, as amended, vests the Comelec with specific authority to acquire AES from foreign sources, thus:

SEC 12. Procurement of Equipment and Materials. To achieve the purpose of this Act, the Commission is authorized to procure, xxx, by purchase, lease, rent or other forms of acquisition, supplies, equipment, materials, software, facilities, and other services, from local or foreign sources xxx. (Emphasis added.)

Petitioners cite Executive Order No. (EO) 584,98 Series of 2006, purportedly limiting contracts for the supply of materials, goods and commodities to government-owned or controlled corporation, company, agency or municipal corporation to corporations that are 60% Filipino. We do not quite see the governing relevance of EO 584. For let alone the fact that RA 9369 is, in relation to EO 584, a subsequent enactment and, therefore, enjoys primacy over the executive issuance, the Comelec does fall under the category of a government-owned and controlled corporation, an agency or a municipal corporation contemplated in the executive order.

A view has been advanced regarding the susceptibility of the AES to hacking, just like the voting machines used in certain precincts in Florida, USA in the Gore-Bush presidential contests. However, an analysis of post-election reports on the voting system thus used in the US during the period material and the AES to be utilized in the 2010 automation project seems to suggest stark differences between the two systems. The first relates to the Source Code, defined in RA 9369 as human readable instructions that define what the computer equipment will do. 99 The Source Code for the 2010 AES shall be available and opened for review by political parties, candidates and the citizens arms or their representatives;100 whereas in the US precincts aforementioned, the Source Code was alleged to have been kept secret by the machine manufacture company, thus keeping the American public in the dark as to how exactly the machines counted their votes. And secondly, in the AES, the PCOS machines found in the precincts will also be the same device that would tabulate and canvass the votes; whereas in the US, the machines in the precincts did not count the votes. Instead the votes cast appeared to have been stored in a memory card that was brought to a counting center at the end of the day. As a result, the hacking and cheating may have possibly occurred at the counting center.

Additionally, with the AES, the possibility of system hacking is very slim. The PCOS machines are only online when they transmit the results, which would only take around one to two minutes. In order to hack the system during this tiny span of vulnerability, a super computer would be required. Noteworthy also is the fact that the memory card to be used during the elections is encrypted and read-only meaning no illicit program can be executed or introduced into the memory card.

Therefore, even though the AES has its flaws, Comelec and Smartmatic have seen to it that the system is well-protected with sufficient security measures in order to ensure honest elections.

And as indicated earlier, the joint venture provider has formulated and put in place a continuity and back-up plans that would address the understandable apprehension of a failure of elections in case the machines falter during the actual election. This over-all fall-back strategy includes the provisions for 2,000 spare PCOS machines on top of the 80,000 units assigned to an equal number precincts throughout the country. The continuity and back-up plans seek to address the following eventualities: (1) The PCOS fails to scan ballots; (2) The PCOS scans the ballots, but fails to print election returns (ERs); and/or (3) The PCOS prints but fails to transmit the ERs. In the event item #1 occurs, a spare PCOS, if available, will be brought in or, if not available, the PCOS of another precinct (PCOS 2 for clarity), after observing certain defined requirements,101 shall be used. Should all the PCOS machines in the entire municipality/city fail, manual counting of the paper ballots and the manual accomplishment of ERs shall be resorted to in accordance with Comelec promulgated rules on appreciation of automated ballots.102 In the event item #2 occurs where the PCOS machines fail to print ERs, the use of spare PCOS and the transfer of PCOS-2 shall be effected. Manual counting of ERs shall be resorted to also if all PCOS fails in the entire municipality. And should eventuality #3 transpire, the following back-up options, among others, may be availed of: bringing PCOS-1 to the nearest precinct or polling center which has a functioning transmission facility; inserting transmission cable of functioning transmission line to PCOS-1 and transmitting stored data from PCOS-1 using functioning transmission facility.

The disruption of the election process due to machine breakdown or malfunction may be limited to a precinct only or could affect an entire municipal/city. The worst case scenario of course would be the wholesale breakdown of the 82,000 PCOS machines. Nonetheless, even in this most extreme case, failure of all the machines would not necessarily translate into failure of elections. Manual count tabulation and transmission, as earlier stated, can be done, PCOS being a paper-ballot technology. If the machine fails for whatever reason, the paper ballots would still be there for the hand counting of the votes, manual tabulation and transmission of the ERs. Failure of elections consequent to voting machines failure would, in fine, be a very remote possibility.

A final consideration.

The first step is always difficult. Hardly anything works, let alone ends up perfectly the first time around. As has often been said, if one looks hard enough, he will in all likelihood find a glitch in any new system. It is no wonder some IT specialists and practitioners have considered the PCOS as unsafe, not the most appropriate technology for Philippine elections, and easily hackable, even. And the worst fear expressed is that disaster is just waiting to happen, that PCOS would not work on election day.

Congress has chosen the May 2010 elections to be the maiden run for full automation. And judging from what the Court has heard and read in the course of these proceedings, the choice of PCOS by Comelec was not a spur-of-moment affair, but the product of honest-to-goodness studies, consultations with CAC, and lessons learned from the ARMM 2008 automated elections. With the backing of Congress by way of budgetary support, the poll body has taken this historic, if not ambitious, first step. It started with the preparation of the RFP/TOR, with a list of voluminous annexes embodying in specific detail the bidding rules and expectations from the bidders. And after a hotly contested and, by most accounts, a highly transparent public bidding exercise, the joint venture of a Filipino and foreign corporation won and, after its machine hurdled the end-to-end demonstration test, was eventually awarded the contract to undertake the automation project. Not one of the losing or disqualified bidders questioned, at least not before the courts, the bona fides of the bidding procedures and the outcome of the bidding itself.

Assayed against the provisions of the Constitution, the enabling automation law, RA 8436, as amended by RA 9369, the RFP and even the Anti-Dummy Law, which petitioners invoked as an afterthought, the Court finds the project award to have complied with legal prescriptions, and the terms and conditions of the corresponding automation contract in question to be valid. No grave abuse of discretion, therefore, can be laid on the doorsteps of respondent Comelec. And surely, the winning joint venture should not be faulted for having a foreign company as partner.

The Comelec is an independent constitutional body with a distinct and pivotal role in our scheme of government. In the discharge of its awesome functions as overseer of fair elections, administrator and lead implementor of laws relative to the conduct of elections, it should not be stymied with restrictions that would perhaps be justified in the case of an organization of lesser responsibility.103 It should be afforded ample elbow room and enough wherewithal in devising means and initiatives that would enable it to accomplish the great objective for which it was created to promote free, orderly, honest and peaceful elections. This is as it should be for, too often, Comelec has to make decisions under difficult conditions to address unforeseen events to preserve the integrity of the election and in the process the voice of the people. Thus, in the past, the Court has steered away from interfering with the Comelec s exercise of its power which, by law and by the nature of its office properly pertain to it. Absent, therefore, a clear showing of grave abuse of discretion on Comelec s part, as here, the Court should refrain from utilizing the corrective hand of certiorari to review, let alone nullify, the acts of that body. This gem, while not on all fours with, is lifted from, the Court s holding in an old but oft-cited case:

x x x We may not agree fully with the Comelec s choice of means, but unless these are clearly illegal or constitute gross abuse of discretion, this court should not interfere. Politics is a practical matter, and political questions must be dealt with realistically not from the standpoint of pure theory or speculation. x x x

xxxx

There are no ready-made formulas for solving public problems. Time and experience are necessary to evolve patterns that will serve the ends of good government. In the matter of the administration of the laws relative to the conduct of elections, x x x we must not by any excessive zeal take away from the Comelec the initiative which by constitutional and legal mandates properly belongs to it. Due regard to the independent character of the Commission x x x requires that the power of this court to review the acts of that body should, as a general proposition, be used sparingly, but firmly in appropriate cases.104 x x x

The Court, however, will not indulge in the presumption that nothing would go wrong, that a successful automation election unmarred by fraud, violence, and like irregularities would be the order of the moment on May 10, 2010. Neither will it guarantee, as it cannot guarantee, the effectiveness of the voting machines and the integrity of the counting and consolidation software embedded in them. That task belongs at the first instance to Comelec, as part of its mandate to ensure clean and peaceful elections. This independent constitutional commission, it is true, possesses extraordinary powers and enjoys a considerable latitude in the discharge of its functions. The road, however, towards successful 2010 automation elections would certainly be rough and bumpy. The Comelec is laboring under very tight timelines. It would accordingly need the help of all advocates of orderly and honest elections, of all men and women of goodwill, to smoothen the way and assist Comelec personnel address the fears expressed about the integrity of the system. Like anyone else, the Court would like and wish automated elections to succeed, credibly. WHEREFORE, the instant petition is hereby DENIED. SO ORDERED. G.R. No. 127745. April 22, 2003 FELICITO G. SANSON, CELEDONIA SANSON-SAQUIN, ANGELES A. MONTINOLA, EDUARDO A. MONTINOLA, JR., petitioners-appellants, vs. HONORABLE COURT OF APPEALS, FOURTH DIVISION and MELECIA T. SY, as Administratrix of the Intestate Estate of the Late Juan Bon Fing Sy, respondents-appellees. DECISION CARPIO MORALES, J.: Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the Court of Appeals Decision of May 31, 1996 and Resolution of December 9, 1996. On February 7, 1990, herein petitioner-appellant Felicito G. Sanson (Sanson), in his capacity as creditor, filed before the Regional Trial Court (RTC) of Iloilo City a petition, docketed as Special Proceedings No. 4497, for the settlement of the estate of Juan Bon Fing Sy (the deceased) who died on January 10, 1990. Sanson claimed that the deceased was indebted to him in the amount of P603,000.00 and to his sister Celedonia Sanson-Saquin (Celedonia) in the amount of P360,000.00.1 Petitioners-appellants Eduardo Montinola, Jr. and his mother Angeles Montinola (Angeles) later filed separate claims against the estate, alleging that the deceased owed them P50,000.00 and P150,000.00, respectively.2

By Order of February 12, 1991, Branch 28 of the Iloilo RTC to which the petition was raffled, appointed Melecia T. Sy, surviving spouse of the deceased, as administratrix of his estate, following which she was issued letters of administration.3 During the hearing of the claims against the estate, Sanson, Celedonia, and Jade Montinola, wife of claimant Eduardo Montinola, Jr., testified on the transactions that gave rise thereto, over the objection of the administratrix who invoked Section 23, Rule 130 of the Revised Rules of Court otherwise known as the Dead Man s Statute which reads: SEC. 23. Disqualification by reason of death or insanity of adverse party. Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. (Emphasis supplied) Sanson, in support of the claim of his sister Celedonia, testified that she had a transaction with the deceased which is evidenced by six checks4 issued by him before his death; before the deceased died, Celedonia tried to enforce settlement of the checks from his (the deceased s) son Jerry who told her that his father would settle them once he got well but he never did; and after the death of the deceased, Celedonia presented the checks to the bank for payment but were dishonored5 due to the closure of his account.6 Celedonia, in support of the claim of her brother Sanson, testified that she knew that the deceased issued five checks7 to Sanson in settlement of a debt; and after the death of the deceased, Sanson presented the checks to the bank for payment but were returned due to the closure of his account.8 Jade, in support of the claims of her husband Eduardo Montinola, Jr. and mother-in-law Angeles, testified that on separate occasions, the deceased borrowed P50,000 and P150,000 from her husband and mother-in-law, respectively, as shown by three checks issued by the deceased,9 two to Angeles and the other10 to Eduardo Montinola, Jr.; before the deceased died or sometime in August 1989, they advised him that they would be depositing the checks, but he told them not to as he would pay them cash, but he never did; and after the deceased died on January 10, 1990, they deposited the checks but were dishonored as the account against which they were drawn was closed,11 hence, their legal counsel sent a demand letter12 dated February 6, 1990 addressed to the deceased s heirs Melicia, James, Mini and Jerry Sy, and Symmels I & II but the checks have remained unsettled.13 The administratrix, denying having any knowledge or information sufficient to form a belief as to the truth of the claims, nevertheless alleged that if they ever existed, they had been paid and extinguished, are usurious and illegal and are, in any event, barred by prescription.14 And she objected to the admission of the checks and check return slips-exhibits offered in evidence by the claimants upon the ground that the witnesses who testified thereon are disqualified under the Dead Man s Statute. Specifically with respect to the checks-exhibits identified by Jade, the administratrix asserted that they are inadmissible because Jade is the daughter-in-law of claimant Angeles and wife of claimant Eduardo Montinola, Jr., hence, she is covered by the above-said rule on disqualification. At all events, the administratrix denied that the checks-exhibits were issued by the deceased and that the return slips were issued by the depository/clearing bank.15 After the claimants rested their case, the administratrix filed four separate manifestations informing the trial court that she was dispensing with the presentation of evidence against their claims.16 Finding that the Dead Man s Statute does not apply to the witnesses who testified in support of the subject claims against the estate, the trial court issued an Order of December 8, 1993,17 the dispositive portion of which reads: WHEREFORE, Judicial Administratrix Melecia T. Sy, is hereby ordered, to pay, in due course of administration, creditorsclaimants Felicito G. Sanson, in the amount of P603,500.00; Celedonia S. Saquin, in the amount of P315,000.00;18 Angeles A. Montinola, in the amount of P150,000.00 and Eduardo Montinola, Jr., in the amount of P50,000.00, from the assets and/or properties of the above-entitled intestate estate.

On appeal by the administratrix upon the following assignment of errors: I. II. III. IV. THE LOWER COURT ERRED IN NOT DISMISSING THE CLAIMS FOR FAILURE TO PAY THE FILING FEES THEREON THE LOWER COURT ERRED IN NOT DISMISSING THE CLAIMS BECAUSE THEY ARE ALREADY BARRED BY THE LAW OF LIMITATIONS OR STATUTE OF NON-CLAIMS III.THE LOWER COURT ERRED IN NOT HOLDING THAT CLAIMANTS EVIDENCE OF THE CLAIM IS INCOMPETENT UNDER THE DEAD MAN S STATUTE, AND INADMISSIBLE THE ALLEGED CHECKS ARE INADMISSIBLE AS PRIVATE DOCUMENTS,19

the Court of Appeals set aside the December 8, 1993 Order of the trial court, by Decision of May 31, 1996, disposing as follows: WHEREFORE, the order appealed from is hereby set aside and another order is entered dismissing the claims of: 1. Felicito G. Sanson, in the amount of P603,500.00; 2. Celdonia S. Saquin, in the amount of P315,000.00;20 3. Angeles A. Montinola, in the amount of P150,000.00; and 4. Eduardo Montinola, Jr., in the amount of P50,000.00 against the estate of the deceased JUAN BON FING SY. No pronouncement as to costs. SO ORDERED. (Underscoring supplied) The claimants Motion for Reconsideration21 of the Court of Appeals decision having been denied by Resolution of December 9, 1996,22 they filed the present petition anchored on the following assigned errors: FIRST ASSIGNED ERROR RESPONDENT COURT OF APPEALS, 4TH DIVISION, ERRED IN FINDING THAT THE TESTIMONY OF JADE MONTINOLA IS INSUFFICIENT TO PROVE THE CLAIMS OF CLAIMANTS ANGELES A. MONTINOLA AND EDUARDO A. MONTINOLA, JR.. SECOND ASSIGNED ERROR RESPONDENT COURT OF APPEALS, 4TH DIVISION, ERRED IN FINDING THAT CLAIMANT FELICITO G. SANSON IS DISQUALIFIED TO TESTIFY ON THE CLAIM OF CELEDONIA SANSON-SAQUIN AND VICE VERSA. (Underscoring in the original)23 With respect to the first assigned error, petitioners argue that since the administratrix did not deny the testimony of Jade nor present any evidence to controvert it, and neither did she deny the execution and genuineness of the checks issued by the deceased (as well as the check return slips issued by the clearing bank), it was error for the Court of Appeals to find the evidence of the Montinolas insufficient to prove their claims. The administratrix counters that the due execution and authenticity of the checks-exhibits of the Montinolas were not duly proven since Jade did not categorically state that she saw the filling up and signing of the checks by the deceased, hence, her testimony is self-serving; besides, as Jade had identical and unitary interest with her husband and mother-inlaw, her testimony was a circumvention of the Dead Man s Statute.24 The administratrix s counter-argument does not lie. Relationship to a party has never been recognized as an adverse factor in determining either the credibility of the witness or subject only to well recognized exceptions none of which is here present the admissibility of the testimony. At most, closeness of relationship to a party, or bias, may indicate the need for a little more caution in the assessment of a witness testimony but is not necessarily a negative element which should be taken as diminishing the credit otherwise accorded to it.25 Jade s testimony on the genuineness of the deceased s signature on the checks-exhibits of the Montinolas is clear:

xxx Q: Showing to you this check dated July 16, 1989, Far East Bank and Trust Company Check No. 84262, in the amount of P100,000.00, is this the check you are referring to? A: Yes, sir. Q: There appears a signature in the face of the check. Whose signature is this? A: That is the signature of Mr. Sy. Q: Why do you know that this is the signature of Mr. Sy? A: Because he signed this check I was . . . I was present when he signed this check. xxx Q: Showing to you this check dated September 8, 1989, is this the check you are referring to? A: Yes, sir. Q: Why do you know that this is his signature? A: I was there when he signed the same. xxx Q: Showing to you this Far East Bank and Trust Company Check No. 84262 dated July 6, 1989, in the amount of P50,000.00, in the name of Eduardo Montinola, are you referring to this check? A: Yes, sir. Q: Whose signature is this appearing on the face of this check? A: Mr. Sy s signature. Q: Why do you know that it is his signature? A: I was there when he signed the same. x x x26 (Emphasis supplied) The genuineness of the deceased s signature having been shown, he is prima facie presumed to have become a party to the check for value, following Section 24 of the Negotiable Instruments Law which reads: Section 24. Presumption of Consideration. Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value. (Underscoring and italics in the original; emphasis supplied), Since, with respect to the checks issued to the Montinolas, the prima facie presumption was not rebutted or contradicted by the administratrix who expressly manifested that she was dispensing with the presentation of evidence against their claims, it has become conclusive. As for the administratrix s invocation of the Dead Man s Statute, the same does not likewise lie. The rule renders incompetent: 1) parties to a case; 2) their assignors; or 3) persons in whose behalf a case is prosecuted. xxx

The rule is exclusive and cannot be construed to extend its scope by implication so as to disqualify persons not mentioned therein. Mere witnesses who are not included in the above enumeration are not prohibited from testifying as to a conversation or transaction between the deceased and a third person, if he took no active part therein. x x x27 (Underscoring supplied) Jade is not a party to the case. Neither is she an assignor nor a person in whose behalf the case is being prosecuted. She testified as a witness to the transaction. In transactions similar to those involved in the case at bar, the witnesses are commonly family members or relatives of the parties. Should their testimonies be excluded due to their apparent interest as a result of their relationship to the parties, there would be a dearth of evidence to prove the transactions. In any event, as will be discussed later, independently of the testimony of Jade, the claims of the Montinolas would still prosper on the basis of their documentary evidence the checks. As to the second assigned error, petitioners argue that the testimonies of Sanson and Celedonia as witnesses to each other s claim against the deceased are not covered by the Dead Man s Statute;28 besides, the administratrix waived the application of the law when she cross-examined them. The administratrix, on the other hand, cites the ruling of the Court of Appeals in its decision on review, the pertinent portion of which reads: The more logical interpretation is to prohibit parties to a case, with like interest, from testifying in each other s favor as to acts occurring prior to the death of the deceased. Since the law disqualifies parties to a case or assignors to a case without distinguishing between testimony in his own behalf and that in behalf of others, he should be disqualified from testifying for his co-parties. The law speaks of parties or assignors of parties to a case. Apparently, the testimonies of Sanson and Saquin on each other s behalf, as co-parties to the same case, falls under the prohibition. (Citation omitted; underscoring in the original and emphasis supplied) But Sanson s and Celedonia s claims against the same estate arose from separate transactions. Sanson is a third party with respect to Celedonia s claim. And Celedonia is a third party with respect to Sanson s claim. One is not thus disqualified to testify on the other s transaction. In any event, what the Dead Man s Statute proscribes is the admission of testimonial evidence upon a claim which arose before the death of the deceased. The incompetency is confined to the giving of testimony.29 Since the separate claims of Sanson and Celedonia are supported by checks-documentary evidence, their claims can be prosecuted on the bases of said checks. This brings this Court to the matter of the authenticity of the signature of the deceased appearing on the checks issued to Sanson and Celedonia. By Celedonia s account, she knows the signature of the deceased. xxx Q: Showing to you these checks already marked as Exhibit A to E , please go over these checks if you know the signatures of the late Juan Bon Fing Sy? on these checks? A: Yes, sir. Q: Insofar as the amount that he borrowed from you, he also issued checks? A: Yes, sir. Q: And therefore, you know his signature? A: Yes, sir. x x x30

Sanson testified too that he knows the signature of the deceased: xxx Q: I show you now checks which were already marked as Exhibit A to G-1 Saquin, please go over this if these are the checks that you said was issued by the late Juan Bon Fing Sy in favor of your sister? A: Yes, these are the same checks. Q: Do you know the signature of the late Juan Bon Fing Sy? A: Yes, sir. Q: And these signatures are the same signatures that you know? A: Yes, sir. x x x31 While the foregoing testimonies of the Sanson siblings have not faithfully discharged the quantum of proof under Section 22, Rule 132 of the Revised Rules on Evidence which reads: Section 22. How genuineness of handwriting proved. The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged and has thus acquired knowledge of the handwriting of such person. x x x, not only did the administratrix fail to controvert the same; from a comparison32 with the naked eye of the deceased s signature appearing on each of the checks-exhibits of the Montinolas with that of the checks-exhibits of the Sanson siblings all of which checks were drawn from the same account, they appear to have been affixed by one and the same hand. In fine, as the claimants-herein petitioners have, by their evidence, substantiated their claims against the estate of the deceased, the burden of evidence had shifted to the administratrix who, however, expressly opted not to discharge the same when she manifested that she was dispensing with the presentation of evidence against the claims. WHEREFORE, the impugned May 31, 1996 Decision of the Court of Appeals is hereby SET ASIDE and another rendered ordering the intestate estate of the late Juan Bon Fing Sy, through Administratrix Melecia T. Sy, to pay: 1) Felicito G. Sanson, the amount of P603,500.00; 2) Celedonia S. Saquin, the amount of P315.000.00;33 3) Angeles Montinola, the amount of P150,000.00; and 4) Eduardo Montinola, Jr., the amount of P50,000.00. representing unsettled checks issued by the deceased. SO ORDERED.

TY V. TY This is a petition for review on certiorari under Rule 45 of the Rules of Court against the Decision1 of the Court of Appeals (CA) in CA-G.R. No. 66053 dated July 27, 2004 and the Resolution therein dated October 18, 2004. The facts are stated in the CA Decision:

On May 19, 1988, Alexander Ty, son of Alejandro B. Ty and Bella Torres, died of cancer at the age of 34. He was survived by his wife, Sylvia Ty, and his only daughter, Krizia Katrina Ty. A few months after his death, a petition for the settlement of his intestate estate was filed by Sylvia Ty in the Regional Trial Court of Quezon City. Meanwhile, on July 20, 1989, upon petition of Sylvia Ty, as Administratrix, for settlement and distribution of the intestate estate of Alexander in the County of Los Angeles, the Superior Court of California ordered the distribution of the Hollywood condominium unit, the Montebello lot, and the 1986 Toyota pick-up truck to Sylvia Ty and Krizia Katrina Ty. On November 23, 1990, Sylvia Ty submitted to the intestate Court in Quezon City an inventory of the assets of Alexander s estate, consisting of shares of stocks and a schedule of real estate properties, which included the following: 1. EDSA Property a parcel of land with an area of 1,728 square meters situated in EDSA, Greenhills, Mandaluyong, Metro Manila, registered in the name of Alexander Ty when he was still single, and covered by TCT No. 0006585; 2. Meridien Condominium A residential condominium with an area of 167.5 square meters situated in 29 Annapolis Street, Greenhills, Mandaluyong, Metro Manila, registered in the name of the spouses Alexander Ty and Sylvia Ty, and covered by Condominium Certificate of Title No. 3395; 3. Wack-Wack Property A residential land with an area of 1,584 square meters situated in Notre Dame, Wack-Wack, Mandaluyong, Metro Manila, registered in the name of the spouses Alexander Ty and Sylvia Ty, and covered by TCT No. 62670. On November 4, 1992, Sylvia Ty asked the intestate Court to sell or mortgage the properties of the estate in order to pay the additional estate tax of P4,714,560.02 assessed by the BIR. Apparently, this action did not sit well with her father-in-law, the plaintiff-appellee, for on December 16, 1992, Alejandro Ty, father of the deceased Alexander Ty, filed a complaint for recovery of properties with prayer for preliminary injunction and/or temporary restraining order. Docketed as Civil Case No. 62714, of the Regional Trial Court of Pasig, Branch 166, the complaint named Sylvia Ty as defendant in her capacity as Administratrix of the Intestate Estate of Alexander Ty. Forthwith, on December 28, 1992, defendant Sylvia Ty, as Administratrix of the Intestate Estate of Alexander Ty, tendered her opposition to the application for preliminary injunction. She claimed that plaintiff Alejandro Ty had no actual or existing right, which entitles him to the writ of preliminary injunction, for the reason that no express trust concerning an immovable maybe proved by parole evidence under the law. In addition, Sylvia Ty argued that the claim is barred by laches, and more than that, that irreparable injury will be suffered by the estate of Alexander Ty should the injunction be issued. To the aforementioned opposition, plaintiff filed a reply, reiterating the arguments set forth in his complaint, and denying that his cause of action is barred by laches. In an order dated February 26, 1993, the Regional Trial Court granted the application for a writ of preliminary injunction. As to the complaint for recovery of properties, it is asserted by plaintiff Alejandro Ty that he owns the EDSA property, as well as the Meridien Condominium, and the Wack-Wack property, which were included in the inventory of the estate of Alexander Ty. Plaintiff alleged that on March 17, 1976, he bought the EDSA property from a certain Purificacion Z. Yujuico; and that he registered the said property in the name of his son, Alexander Ty, who was to hold said property in trust for his brothers and sisters in the event of his (plaintiffs) sudden demise. Plaintiff further alleged that at the time the EDSA property was purchased, his son and name-sake was still studying in the United States, and was financially dependent on him. As to the two other properties, plaintiff averred that he bought the Meridien Condominium sometime in 1985 and the Wack-Wack property sometime in 1987; that titles to the aforementioned properties were also placed in the name of his son, Alexander Ty, who was also to hold these properties in trust for his brothers and sisters. Plaintiff asserted that at the time the subject properties were purchased, Alexander Ty and Sylvia Ty were earning minimal income, and were

thus financially incapable of purchasing said properties. To bolster his claim, plaintiff presented the income tax returns of Alexander from 1980-1984, and the profit and loss statement of defendant s Joji San General Merchandising from 1981-1984. Plaintiff added that defendant acted in bad faith in including the subject properties in the inventory of Alexander Ty s estate, for she was well aware that Alexander was simply holding the said properties in trust for his siblings. In her answer, defendant denied that the subject properties were held in trust by Alexander Ty for his siblings. She contended that, contrary to plaintiff s allegations, Alexander purchased the EDSA property with his own money; that Alexander was financially capable of purchasing the EDSA property as he had been managing the family corporations ever since he was 18 years old, aside from the fact that he was personally into the business of importing luxury cars. As to the Meridien Condominium and Wack-Wack property, defendant likewise argued that she and Alexander Ty, having been engaged in various profitable business endeavors, they had the financial capacity to acquire said properties. By way of affirmative defenses, defendant asserted that the alleged verbal trust agreement over the subject properties between the plaintiff and Alexander Ty is not enforceable under the Statute of Frauds; that plaintiff is barred from proving the alleged verbal trust under the Dead Man s Statute; that the claim is also barred by laches; that defendant s title over the subject properties cannot be the subject of a collateral attack; and that plaintiff and counsel are engaged in forum-shopping. In her counterclaim, defendant prayed that plaintiff be sentenced to pay attorney s fees and costs of litigation. On November 9, 1993, a motion for leave to intervene, and a complaint-in-intervention were filed by Angelina PiguingTy, legal wife of plaintiff Alejandro Ty. In this motion, plaintiff-intervenor prayed that she be allowed to intervene on the ground that the subject properties were acquired during the subsistence of her marriage with the plaintiff, hence said properties are conjugal. On April 27, 1994, the trial court issued an Order granting the aforementioned motion. During the hearing, plaintiff presented in evidence the petition filed by defendant in Special Proceedings No. Q-88-648; the income tax returns and confirmation receipts of Alexander Ty from 1980-1984; the profit and loss statement of defendant s Joji San General Merchandising from 1981-1984; the deed of sale of the EDSA property dated March 17, 1976; the TCT s and CCT of the subject properties; petty cash vouchers, official receipts and checks to show the plaintiff paid for the security and renovation expenses of both the Meridien Condominium and the Wack-Wack property; checks issued by plaintiff to defendant between June 1988 November 1991 to show that plaintiff provided financial support to defendant in the amount of P51,000.00; and the articles of incorporations of various corporations, to prove that he, plaintiff, had put up several corporations. Defendant for her presented in evidence the petition dated September 6, 1988 in Special Proceedings No. Q-88-648; the TCTs and CCT of the subject properties; the deed of sale of stock dated July 27, 1988 between the ABT Enterprises, Incorporated, and plaintiff; the transcript of stenographic notes dated January 5, 1993 in SEC Case No. 4361; the minutes of the meetings, and the articles of incorporation of various corporations; the construction agreement between the defendant and the Home Construction, for the renovation of the Wack-Wack property; the letters of Home Construction to defendant requesting for payment of billings and official receipts of the same, to show that defendant paid for the renovation of the Wack-Wack property; the agreement between Drago Daic Development International, Incorporated, and the spouses Alexander Ty and Sylvia Ty, dated March, 1987, for the sale of the Wack-Wack property covered by TCT No. 55206 in favor of the late Alexander Ty and the defendant; a photograph of Krizia S. Ty; business cards of Alexander Ty; the Order and the Decree No. 10 of the Superior Court of California, dated July 20, 1989; the agreement between Gerry L. Contreras and the Spouses Alexander Ty and Sylvia Ty, dated January 26, 1988, for the Architectural Finishing and Interior Design of the Wack-Wack property; official receipts of the Gercon Enterprises; obituaries published in several newspapers; and a letter addressed to Drago Daic dated February 10, 1987.2 Furthermore, the following findings of facts of the court a quo, the Regional Trial Court of Pasig City, Branch 166 (RTC), in Civil Case No. 62714, were adopted by the CA, thus: We adopt the findings of the trial court in respect to the testimonies of the witnesses who testified in this case, thus: "The gist of the testimony of defendant as adverse witness for the plaintiff:

"Defendant and Alexander met in Los Angeles, USA in 1975. Alexander was then only 22 years old. They married in 1981. Alexander was born in 1954. He finished high school at the St. Stephen High School in 1973. Immediately after his graduation from high school, Alexander went to the USA to study. He was a full-time student at the Woodberry College where he took up a business administration course. Alexander graduated from the said college in 1977. He came back to the Philippines and started working in the Union Ajinomoto, Apha Electronics Marketing Corporation and ABT Enterprises. After their marriage in 1981, Alexander and defendant lived with plaintiff at the latter s residence at 118 Scout Alcaraz St., Quezon City. Plaintiff has been engaged in manufacturing and trading business for almost 50 years. Plaintiff has established several corporations. While in the USA, Alexander stayed in his own house in Montebello, California, which he acquired during his college days. Alexander was a stockholder of companies owned by plaintiff s family and got yearly dividend therefrom. Alexander was an officer in the said companies and obtained benefits and bonuses therefrom. As stockholder of Ajinomoto, Royal Porcelain, Cartier and other companies, he obtained stock dividends. Alexander engaged in buy and sell of cars. Defendant cannot give the exact amount how much Alexander was getting from the corporation since 1981. In 1981, defendant engaged in retail merchandising i.e., imported jewelry and clothes. Defendant leased two (2) units at the Greenhills Shoppesville. Defendant had dividends from the family business which is real estate and from another corporation which is Perway. During their marriage, defendant never received allowance from Alexander. The Wack-Wack property cost P5.5 million. A Car Care Center was established by Alexander and defendant was one of the stockholders. Defendant and Alexander spent for the improvement of the Wack-Wack property. Defendant and Alexander did not live in the condominium unit because they followed the Chinese tradition and lived with plaintiff up to the death of Alexander. Defendant and Alexander started putting improvements in the Wack-Wack property in 1988, or a few months before Alexander died. "The gist of the testimony of Conchita Sarmiento: "In 1966, Conchita Sarmiento was employed in the Union Chemicals as secretary of plaintiff who was the president. Sarmiento prepared the checks for the school expenses and allowances of plaintiff s children and their spouses. Sarmiento is familiar with the Wack-Wack property. Plaintiff bought the Wack-Wack property and paid the architect and spent for the materials and labor in connection with the construction of the Wack-Wack property (Exhs. M to Z inclusive; Exhs. AA to ZZ, inclusive; Exhs. AAA to ZZZ, inclusive; Exhs. AAAA to FFFF, inclusive). Plaintiff entrusted to Alexander the supervision of the construction of the Wack-Wack property, so that Exhibit M shows that the payment was received from Alexander. Plaintiff visited the Wack-Wack property several times and even pointed the room which he intended to occupy. Sarmiento was told by plaintiff that it was very expensive to maintain the house. The documents, referring to the numerous exhibits, were in the possession of plaintiff because they were forwarded to him for payment. Sarmiento knows the residential condominium unit because in 1987 plaintiff purchased the materials and equipments for its renovation, as shown by Exhs. GGGG to QQQQ inclusive. Plaintiff supported defendant after the death of Alexander, as shown by Exhs. RRRR to TTTT inclusive. Sarmiento was plaintiff s secretary and assisted him in his official and personal affairs. Sarmiento knew that Alexander was receiving a monthly allowance in the amount of P5,000.00 from Alpha. "The gist of the testimony of the plaintiff: Plaintiff is 77 years old and has been engaged in business for about 50 years. Plaintiff established several trading companies and manufacturing firms. The articles of incorporation of the companies are shown in Exhs. UUUUU (Manila Paper Mills, Inc.); UUUUU-1 (Union Chemicals Inc.); UUUUU-2 (Starlight Industrial Company Inc.); UUUUU-3 (Hitachi Union, Inc.); UUUUU-4 (Philippine Crystal Manufacturing Corp.). Alexander completed his elementary education in 1969 at the age of 15 years and finished high school education in 1973. Alexander left in 1973 for the USA to study in the Woodberry College in Los Angeles. Alexander returned to the Philippines in 1977. When Alexander was 18 years old, he was still in high school, a full-time student. Alexander did not participate in the business operation. While in High School Alexander, during his free time attended to his hobby about cars Mustang, Thunderbird and Corvette. Alexander was not employed. Plaintiff took care of Alexander s financial needs. Alexander was plaintiff s trusted son because he lived with him from childhood until his death. In 1977 when Alexander returned to the Philippines from the USA, he did not seek employment. Alexander relied on plaintiff for support. After Alexander married defendant, he put up a Beer Garden and a Car Care Center. Plaintiff provided the capital. The Beer Garden did not make money and was closed after Alexander s death. Defendant and Alexander lived with plaintiff in Quezon City and he spent for their needs. Plaintiff purchased with his own money the subject properties. The EDSA property was for investment purposes. When plaintiff

accompanied Alexander to the USA in 1973, he told Alexander that he will buy some properties in Alexander s name, so that if something happens to him, Alexander will distribute the proceeds to his siblings. When the EDSA property was bought, Alexander was in the USA. Plaintiff paid the real estate taxes. With plaintiff s permission, Alexander put up his Beer Garden and Car Care Center in the EDSA property. It was Alexander who encouraged plaintiff to buy the condominium unit because Alexander knew the developer. The condominium unit was also for investment purposes. Plaintiff gave Alexander the money to buy the condominium unit. After sometime, Alexander and defendant asked plaintiff s permission for them to occupy the condominium unit. Plaintiff spent for the renovation of the condominium unit. It was Alexander who encouraged plaintiff to buy the Wack-Wack property. Plaintiff spent for the renovation of the condominium unit. It was Alexander who encouraged plaintiff to buy the Wack-Wack property. Plaintiff paid the price and the realty taxes. Plaintiff spent for the completion of the unfinished house on the Wack-Wack property. Plaintiff bought the Wack-Wack property because he intended to transfer his residence from Quezon City to Mandaluyong. During the construction of the house on the Wack-Wack property plaintiff together with Conchita Sarmiento, used to go to the site. Plaintiff even told Sarmiento the room which he wanted to occupy. Alexander and defendant were not in a financial position to buy the subject properties because Alexander was receiving only minimal allowance and defendant was only earning some money from her small stall in Greenhills. Plaintiff paid for defendant s and Alexander income taxes (Exhs. B, C, D, E, and F ). Plaintiff kept the Income Tax Returns of defendant and Alexander in his files. It was one of plaintiff s lawyers who told him that the subject properties were included in the estate of Alexander. Plaintiff called up defendant and told her about the subject properties but she ignored him so that plaintiff was saddened and shocked. Plaintiff gave defendant monthly support of P 51, 000.00 (Exhs. RRRR to TTTTT," inclusive) P 50,000.00 for defendant and P1,000.00 for the yaya. The Wack-Wack property cost about P5.5 million. "The gist of the testimony of Robert Bassig: "He is 73 years old and a real estate broker. Bassig acted as broker in the sale of the EDSA property from Purificacion Yujuico to plaintiff. In the Deed of Sale (Exh. G ) it was the name of Alexander that was placed as the vendee, as desired by plaintiff. The price was paid by plaintiff. Bassig never talked with Alexander. He does not know Alexander. "The gist of the testimony of Tom Adarne as witness for defendant: Adarne is 45 years old and an architect. He was a friend of Alexander. Adarne was engaged by defendant for the preparation of the plans of the Wack-Wack property. The contractor who won the bidding was Home Construction, Inc. The Agreement (Exh. 26 ) was entered into by defendant and Home Construction Inc. The amount of P955,555.00 (Exh. 26-A ) was for the initial scope of the work. There were several letter-proposals made by Home Construction (Exhs. 2734-A, inclusive). There were receipts issued by Home Construction Inc. (Exhs. 35, 36 and 37 ). The proposal were accepted and performed. The renovation started in 1992 and was finished in 1993 or early 1994. "The gist of the testimony of Rosanna Regalado: "Regalado is 43 years old and a real estate broker. Regalado is a close friend of defendant. Regalado acted as broker in the sale of the Wack-Wack property between defendant and Alexander and the owner. The sale Agreement (Exh. 38 ) is dated March 5, 1987. The price is P5.5 million in Far East Bank and Trust Company manager s checks. The four (4) checks mentioned in paragraph 1 of the Agreement were issued by Alexander but she is not sure because it was long time ago. "The gist of the testimony of Sylvia Ty: "She is 40 years old, businesswoman and residing at 675 Notre Dame, Wack-Wack Village, Mandaluyong City. Sylvia and Alexander have a daughter named Krizia Katrina Ty, who is 16 years old. Krizia is in 11th grade at Brent International School. Alexander was an executive in several companies as shown by his business cards (Exhs. 40, 40-A, 40-B, 40-C, 40-D, 40-E, 40-F, and 40-G ). Before defendant and Alexander got married, the latter acquired a condominium unit in Los Angeles, USA, another property in Montebello, California and the EDSA property. The properties in the USA were already settled and adjudicated in defendant s favor (Exhs. 41 and 41-A ). Defendant did not bring any property into the marriage. After the marriage, defendant engaged in selling imported clothes and eventually bought four (4) units of stall in Shoppesville Greenhills and derived a monthly income of P50,000.00. the price for one (1) unit was provided by defendant s mother. The other three (3) units came from the house and lot at Wack-Wack Village. The P3.5 million manager s check was purchased by Alexander. The sale Agreement was signed by Alexander and defendant (Exhs. 38-A

and 38-B ). After the purchase, defendant and Alexander continued the construction of the property. After Alexander s death, defendant continued the construction. The first architect that defendant and Alexander engaged was Gerry Contreras (Exhs. 42, 42-A and 42-A-1 to 42-A-7 ). The post-dated checks issued by Alexander were changed with the checks of plaintiff. After the death of Alexander, defendant engaged the services of Architect Tom Adarne. Home Construction, Inc. was contracted to continue the renovation. Defendant and Alexander made payments to Contreras from January to May 1998 (Exhs. 43, 43-A to 43-H, inclusive). A general contractor by the name of Nogoy was issued some receipts (Exhs. 43-J and 43-K ). a receipt was also issued by Taniog (Exh. 43-L ). the payments were made by defendant and Alexander from the latter s accounts. The Agreement with Home Construction Inc. (Exhs. 26 ) shows defendant s signature (Exh. 26-A ). the additional works were covered by the progress billings (Exhs. 27 to 34-A ). Defendant paid them from her account. The total contract amount was P5,049,283.04. The total expenses, including the furnishings, etc. reached the amount of P8 to 10 million and were paid from defendant s and Alexander s funds. After the death of Alexander, plaintiff made payments for the renovation of the house (Exh. M ) which plaintiff considered as advantages but plaintiff did not make any claim for reimbursement from the estate of Alexander. Defendant s relationship with plaintiff became strained when he asked her to waive her right over the Union Ajinomoto shares. Alexander was a friend of Danding Cojuangco and was able to import luxury cars. Alexander made a written offer to purchase the Wack-Wack property. Alexander graduated from the Woodberry College in 1978 or 1979 and returned to the Philippines in 1979 defendant returned to the Philippines about six (6) months later. Plaintiff was financially well off or wealthy. Alexander was very close to plaintiff and he was the most trusted son and the only one who grew up in plaintiff s house. Plaintiff observed Chinese traditions. Alexander was not totally dependent on plaintiff because he had his own earnings. Upon his return from the USA, Alexander acquired the properties in the USA while studying there. At the time of his death, Alexander was vice president of Union Ajinomoto. Defendant could not say how much was the compensation of Alexander from Union Ajinomoto. Defendant could not also say how much did Alexander earn as vice president of Royal Porcelain Corporation. Alexander was the treasurer of Polymark Paper Industries. Alexander was the one handling everything for plaintiff in Horn Blower Sales Enterprises, Hi-Professional Drilling, Round Consumer, MVR Picture Tubes, ABT Enterprises. Plaintiff supported defendant and her daughter in the amount of P51,000.00 per month from 1988-1990. Defendant did not offer to reimburse plaintiff the advances he made on the renovation of the WackWack property because their relationship became strained over the Ajinomoto shares. Defendant could not produce the billings which were indicated in the post-dated checks paid to Architect Contreras. After the birth of her child, defendant engaged in the boutique business. Defendant could not recall how much she acquired the boutique (for). In 1983 or 1984 defendant started to earn P50,000.00 a month. The properties in the USA which were acquired by Alexander while still single were known to plaintiff but the latter did not demand the return of the titles to him. The Transfer Certificates of Title of the Wack-Wack and EDSA properties were given to defendant and Alexander. The Condominium Certificate of Title was also given to defendant and Alexander. The plaintiff did not demand the return of the said titles. "The gist of the testimony of Atty. Mario Ongkiko: "Atty. Ongkiko prepared the Deed of Sale of the EDSA property. There was only one Deed of Sale regarding the said property. The plaintiff was not the person introduced to him by Yujuico as the buyer.3 On January 7, 2000, the RTC rendered its decision, disposing as follows: WHEREFORE, judgment is hereby rendered: 1. Declaring plaintiff as the true and lawful owner of the subject properties, as follows: A. A parcel of land with an area of 1728 square meters, situated along EDSA Greenhills, Mandaluyong City, covered by TCT No. 006585. B. A residential land with an area of 1584 square meters, together with the improvements thereon, situated in Notre Dame, Wack-Wack Village, Mandaluyong City, covered by TCT No. 62670. C. A residential condominium unit with an area of 167.5 square meters, situated in 29 Annapolis St., Greenhills, Mandaluyong City, covered by Condominium Certificate Title No. 3395.

2. Ordering the defendant to transfer or convey the subject properties in favor of plaintiff and the Register of Deeds for Mandaluyong City to transfer and issue in the name of plaintiff the corresponding certificates of title. 3. Ordering the defendant to pay plaintiff the amount of P100,000.00, as moral damages and P200,000.00, as attorney s fees plus the cost of the suit. SO ORDERED.4 Respondent herein, Sylvia S. Ty, appealed from the RTC Decision to the CA, assigning the following as errors: I. THE TRIAL COURT ERRED IN HOLDING THAT APPELLEE PURCHASED THE EDSA PROPERTY BUT PLACED TITLE THERETO IN THE NAME OF ALEXANDER T. TY, SO THAT AN EXPRESS TRUST WAS CREATED BETWEEN APPELLEE, AS TRUSTOR AND ALEXANDER AS TRUSTEE IN FAVOR OF THE LATTER S SIBLINGS, AS BENEFICIARIES EVEN WITHOUT ANY WRITING THEREOF; ALTERNATIVELY, THE TRIAL COURT ERRED IN ANY CASE IN HOLDING THAT AN IMPLIED TRUST EXISTED BETWEEN APPELLEE AND ALEXANDER TY IN FAVOR OF APPELLEE UNDER THE SAME CIRCUMSTANCES. II. THE TRIAL COURT ERRED IN HOLDING THAT APPELLEE PURCHASED THE WACK-WACK AND MERIDIEN CONDOMINIUM PROPERTIES BUT PLACED ITS TITLES THERETO IN THE NAMES OF SPOUSES ALEXANDER AND APPELLANT BECAUSE HE WAS FINANCIALLY CAPABLE OF PAYING FOR THE PROPERTIES WHILE ALEXANDER OR HIS WIFE, APPELLANT SYLVIA S. TY, WERE INCAPABLE. HENCE, A RESULTING TRUST WAS CREATED BETWEEN APPELLEE AND HIS SON, ALEXANDER, WITH THE FORMER, AS OWNER-TRUSTOR AND BENEFICIARY AND THE LATTER AS TRUSTEE CONCERNING THE PROPERTIES. III. THE TRIAL COURT ERRED IN AWARDING MORAL DAMAGES OF P100,000 AND ATTORNEY S FEES OF P200,000 IN FAVOR OF APPELLEE AND AGAINST DEFENDANT-APPELLANT IN HER CAPACITY AS ADMINISTRATRIX OF THE INTESTATE ESTATE OF ALEXANDER TY, INSTEAD OF AWARDING APPELLANT IN HER COUNTERCLAIM ATTORNEY S FEES AND EXPENSES OF LITIGATION INCURRED BY HER IN DEFENDING HER HUSBAND S ESTATE AGAINST THE UNJUST SUIT OF HER FATHER-INLAW, HEREIN APPELLEE, WHO DISCRIMINATED AGAINST HIS GRAND DAUGHTER KRIZIA KATRINA ON ACCOUNT OF HER SEX. The arguments in the respective briefs of appellant and appellee are summarized by the CA Decision, as well as other preliminary matters raised and tackled, thus: In her Brief, defendant-appellant pointed out that, based on plaintiff-appellee s testimony, he actually intended to establish an express trust; but that the trial court instead found that an implied trust existed with respect to the acquisition of the subject properties, citing Art. 1448 of the Civil Code of the Philippines. It is defendant-appellant s contention that the trial court erred: In applying Art. 1448 on implied trust, as plaintiffappellee did not present a shred of evidence to prove that the money used to acquire said properties came from him; and in holding that both she and her late husband were financially incapable of purchasing said properties. On the contrary, defendant-appellant claimed that she was able to show that she and her late husband had the financial capacity to purchase said properties. Defendant-appellant likewise questioned the admission of the testimony of plaintiff-appellee, citing the Dead Man s Statute; she also questioned the admission of her late husband s income tax returns, citing Section 71 of the NIRC and the case of Vera v. Cusi, Jr. On July 10, 2001, plaintiff-appellee filed his appellee s Brief, whereunder he argued: That the trial court did not err in finding that the subject properties are owned by him; that the said properties were merely registered in Alexander s name, in trust for his siblings, as it was plaintiff-appellee who actually purchased the subject properties he having the financial capacity to acquire the subject properties, while Alexander and defendant-appellant had no financial capacity to do so; that defendant-appellant should be sentenced to pay him moral damages for the mental anguish, serious

anxiety, wounded feelings, moral shock and similar injury by him suffered, on account of defendant-appellant s wrongful acts; and that defendant appellant should also pay for attorney s fees and litigation expenses by him incurred in litigating this case. In a nutshell, it is plaintiff-appellee s thesis that in 1973, when he accompanied his son, Alexander, to America, he told his son that he would put some of the properties in Alexander s name, so that if death overtakes him (plaintiff-appellee), Alexander would distribute the proceeds of the property among his siblings. According to plaintiff-appellee, the three properties subject of this case are the very properties he placed in the name of his son and name-sake; that after the death of Alexander, he reminded his daughter-in-law, the defendant appellant herein, that the subject properties were only placed in Alexander s name for Alexander to hold trust for his siblings; but that she rejected his entreaty, and refused to reconvey said properties to plaintiff-appellee, thereby compelling him to sue out a case for reconveyance. On September 5, 2001, defendant-appellant filed her reply Brief and a motion to admit additional evidence. Thereafter, several motions and pleadings were filed by both parties. Plaintiff-appellee filed a motion for early resolution dated May 17, 2002 while defendant-appellant filed a motion to resolve dated August 6, 2003 and a motion to resolve incident dated August 12, 2003. Plaintiff-appellee then filed a comment on the motion to resolve incident, to which defendant-appellant tendered a reply. Not to be outdone, the former filed a rejoinder. Thus, on February 13, 2004, this Court issued a resolution, to set the case for the reception of additional evidence for the defendant-appellant. In support of her motion to admit additional evidence, defendant-appellant presented receipts of payment of real estate taxes for the years 1987 to 2004, obviously for the purpose of proving that she and her late husband in their own right were financially capable of acquiring the contested properties. Plaintiff-appellee however did not present any countervailing evidence. Per resolution of March 25, 2004, this Court directed both parties to submit their respective memorandum of authorities in amplification of their respective positions regarding the admissibility of the additional evidence. Defendant-appellant in her memorandum prayed that the additional evidence be considered in resolving the appeal in the interest of truth and substantial justice. Plaintiff-appellee, on the other hand, in his memorandum, argued that the additional evidence presented by the defendant-appellant is forgotten evidence, which can lo longer be admitted, much less considered, in this appeal. Thereafter, the case was submitted for decision. Before taking up the main issue, we deem it expedient to address some collateral issues, which the parties had raised, to wit: (a) the admissibility of the additional evidence presented to this Court, (b) the admissibility of plaintiff s testimony, (c) the admissibility of the income tax return, and (d) laches. On the propriety of the reception of additional evidence, this Court falls backs (sic) upon the holding of the High Court in Alegre v. Reyes, 161 SCRA 226 (1961) to the effect that even as there is no specific provision in the Rules of Court governing motions to reopen a civil case for the reception of additional evidence after the case has been submitted for decision, but before judgment is actually rendered, nevertheless such reopening is controlled by no other principle than that of the paramount interest of justice, and rests entirely upon the sound judicial discretion of the court. At any rate, this Court rules that the tax declaration receipts for the EDSA property for the years 1987-1997, and 1999; for the WackWack property for the years 1986-1987, 1990-1999; and for the Meridien Condominium for the years 1993-1998 cannot be admitted as they are deemed forgotten evidence. Indeed, these pieces of evidence should have been presented during the hearing before the trial court. However, this Court in the interest of truth and justice must hold, as it hereby holds, that the tax declaration receipts for the EDSA property for the years 2000-2004; the Wack-Wack property for the years 2000-2004; and the Meridien Condominium for the years 2000-2001 may be admitted to show that to this date, it is the defendant-appellant, acting as an administratrix, who has been paying the real estate taxes on the aforestated properties. As regards the admissibility of plaintiff-appellee s testimony, this Court agrees with the trial court that:

"Defendant s argument to the effect that plaintiff s testimony proving that the deceased Alexander Ty was financially dependent on him is inadmissible in evidence because he is barred by the Dead Man s Statute (Rule 130, Sec. 20, Rules of Court) for making such testimony, is untenable. A reading of pages 10 to 45 of the TSN, taken on November 16, 1998, which contain the direct-examination testimony of plaintiff, and pages 27, 28, 30, 34, 35, 37, 39, 40 of the TSN, taken on January 15, 1999; page 6 of the TSN taken on December 11, 1998, pages 8, 10, 11, 12, 14, 23 24 of TSN, taken on taken on February 19, 1999; and pages 4,5,6,7,8,11,25 and 27 of the TSN taken on March 22, 1999, will show that defendant s lawyer did not object to the plaintiff as witness against defendant, and that plaintiff was exhaustively cross-examined by defendant s counsel regarding the questioned testimony, hence, the same is not covered by the Dead Man s Statute (Marella v. Reyes, 12 Phil. 1; Abrenica v. Gonda and De Gracia, 34 Phil. 739; Tongco v. Vianzon, 50 Phil. 698). A perusal of the transcript of stenographic notes will show that counsel for defendant-appellant was not able to object during the testimony of plaintiff-appellee. The only time that counsel for defendant-appellant interposed his objection was during the examination of Rosemarie Ty, a witness (not a party) to this case. Thus the Dead Man s Statute cannot apply. With regard to the income tax returns filed by the late Alexander Ty, this Court holds that the same are admissible in evidence. Neither Section 71 of the NIRC nor the case of Vera v. Cusi applies in this case. The income tax returns were neither obtained nor copied from the Bureau of Internal Revenue, nor produced in court pursuant to a court order; rather these were produced by plaintiff-appellee from his own files, as he was the one who kept custody of the said income tax returns. Hence, the trial court did not err in admitting the income tax returns as evidence. Anent the issue of laches, this Court finds that the plaintiff-appellee is not guilty of laches. There is laches when: (1) the conduct of the defendant or one under whom he claims, gave rise to the situation complained of; (2) there was delay in asserting a right after knowledge defendant s conduct and after an opportunity to sue; (3) defendant had no knowledge or notice that the complainant would assert his right; and (4) there is injury or prejudice to the defendant in the event relief is accorded to the complainant. These conditions do not obtain here. In this case, there was no delay on the part of plaintiff-appellee in instituting the complaint for recovery of real properties. The case was files four years after Alexander s death; two years after the inventory of assets of Alexander s estate was submitted to the intestate court; and one month after defendant-appellant filed a motion to sell or mortgage the real estate properties. Clearly, such length of time was not unreasonable.5 The CA then turned to "the critical, crucial and pivotal issue of whether a trust, express or implied, was established by the plaintiff-appellee in favor of his late son and name-sake Alexander Ty." The CA proceeded to distinguish express from implied trust, then found that no express trust can be involved here since nothing in writing was presented to prove it and the case involves real property. It then stated that it disagrees with the court a quo s application of Art. 1448 of the Civil Code on implied trust, the so-called purchase money resulting trust, stating that the very Article provides the exception that obtains when the person to whom the title is conveyed is the child, legitimate or illegitimate, of the one paying the price of the sale, in which case no trust is implied by law, it being disputably presumed that there is a gift in favor of the child. The CA therefore reasoned that even assuming that plaintiff-appellee paid at least part of the price of the EDSA property, the law still presumes that the conveyance was a discretion (a gift of devise) in favor of Alexander. As to plaintiff-appellee s argument that there was no donation as shown by his exercise of dominion over the property, the CA held that no credible evidence was presented to substantiate the claim. Regarding the residence condominium and the Wack-Wack property, the CA stated that it did not agree either with the findings of the trial court that an implied trust was created over these properties. The CA went over the testimonies of plaintiff-appellee and the witness Conchita Sarmiento presented to show that spouses Alexander and Sylvia S. Ty were financially dependent of plaintiff-appellee and did not have the financial means or wherewithals to purchase these properties. It stated: Consider this testimony of plaintiff-appellee:

Q During the time that Alex was staying with you, did you ever come to know that Alexander and his wife did go to the States? A Q Yes, sir. But I do not know the exact date. But they told me they want to go to America for check up. Was that the only time that Alexander went to the States?

A Only that time, sir. Previously, he did not tell me. That last he come (sic) to me and tell sic me that he will go to America for check up. That is the only thing I know. Q Would you say for the past five years before his death Alex and his wife were going to the States at least once a year? A I cannot say exactly. They just come to me and say that I sic will go to "bakasyon." They are already grown people. They don t have to tell me where they want to go. Q A Q A Q A You are saying that Alexander did not ask you for assistance whenever he goes to the States? Sometimes Yes. In what form? I gave him peso, sir. For what purpose? Pocket money, sir.

There is no evidence at all that it was plaintiff-appellee who spent for the cancer treatment abroad of his son. Nor is there evidence that he paid for the trips abroad of Alexander and the defendant-appellant. Admittedly, he only gave his son Alexander pocket money once in a while. Simply put, Alexander was not financially dependent upon the plaintiffappellee, given that Alexander could afford the costs of his cancer treatment abroad, this on top of the trips he made to the United States at least once a year for five successive years without the support of his father. The fact that Alexander stayed with his father, the plaintiff-appellee in this case, even after he married Sylvia and begot Krizia, does not at all prove that Alexander was dependent on plaintiff-appellee. Neither does it necessarily mean that it was plaintiff-appellee who was supporting Alexander s family. If anything, plaintiff-appellee in his testimony admitted that Alexander and his family went to live with him in observance of Chinese traditions. In addition, the income tax returns of Alexander from 1980-1984, and the profit and loss statement of defendantappellant s Joji San General Merchandising from 1981-1984, are not enough to prove that the spouses were not financially capable of purchasing the said properties. Reason: These did not include passive income earned by these two, such as interests on bank deposits, royalties, cash dividends, and earnings from stock trading as well as income from abroad as was pointed out by the defendant-appellant. More importantly, the said documents only covered the years 1980-1984. The income of the spouses from 1985 to 1987 was not shown. Hence, it is entirely possible that at the time the properties in question were purchased, or acquired, Alexander and defendant-appellant had sufficient funds, considering that Alexander worked in various capacities in the family corporations, and his own business enterprises, while defendant-appellant had thriving businesses of her own, from which she acquired commercial properties. And this is not even to say that plaintiff-appellee is this case failed to adduce conclusive, incontrovertible proof that the money use to purchase the two properties really came from him; or that he paid for the price of the two properties in order to have the beneficial interest or estate in the said properties. A critical examination of the testimony of plaintiff-appellee s witness, Conchita Sarmiento, must also show that this witness did not have actual knowledge as to who actually purchased the Wack-Wack property and the Meridien Condominium. Her testimony that plaintiff-appellee visited the Wack-Wack property and paid for the costs of the

construction of the improvements over the said property, in the very nature of things, does not prove that it was the plaintiff-appellee who in fact purchased the Wack-Wack property.6 On the other hand, the CA found defendant-appellant s evidence convincing: In contrast, Rosana Regalado had actual knowledge of the transaction she testified to, considering that she was the real estate broker who negotiated the sale of the Wack-Wack property between its previous owner Drago Daic and the spouses Alexander and Sylvia Ty. In her testimony, she confirmed that the checks, which were issued to pay for the purchase price of the Wack-Wack property, were signed and issued by Alexander, thereby corroborating the testimony of defendant-appellant on this point. Significantly, during the trial, Conchita Sarmiento identified some receipts wherein the payor was the late Alexander Ty. Apparently, prior to the death of Alexander, it was Alexander himself who was paying for the construction of the WackWack property; and that the only time plaintiff-appellee paid for the costs of the construction was when Alexander died. Quite compelling is the testimony of defendant-appellant in this respect: Q And after the death and burial of your husband, will you tell this Honorable Court what happened to the construction of this residence in Wack-Wack? A Well, of course, during the period I was mourning and I was reorganizing myself and my life, so I was not mainly focused on the construction, so it took a couple of months before I realized that the post-dated checks issued by my husband was changed through checks by my father-in-law Mr. Alejandro Ty. Q And did you had sic any conversation with Mr. Alejandro Ty regarding as to why he did that?

A Yes, sir, that was the beginning of our misunderstanding, so I decided to hire a lawyer and that is Atty. Ongkiko, to be able to settle my estate and to protect myself from with the checks that they changed that my husband issued to Architect Gerry Contreras. Q A Q A Q A Q A Q Was there any point in time that you yourself took over the construction? Yes, sir, right after a year of that property after I was more settled. And did you engaged sic the services of any professional or construction company for the purpose? Yes, sir. Who was that? Architect Tom Adarme. What is his first name, if you recall? Architect Tommy Adarme. And was there any company or office which helped Architect Adarme in the continuation of the construction?

A Yes, I also signed a contract with Architect Adarme and he hired Home Construction to finish the renovation and completion of the construction in Wack-Wack, sir. Q Do you have any document to show that you yourself overtook personally the continuation of the construction of your residence? A Yes, sir I have the whole construction documents and also the documents through Arch. Gerry Contreras, that contract that we signed.

In other words, plaintiff-appellee took over the management of the construction of the Wack-Wack property only because defendant-appellant was still in mourning. And, If ever plaintiff-appellee did pay for the costs of the construction after the death of Alexander, it would be stretching logic to absurd proportions to say that such fact proved that he owns the subject property. If at all, it only shows that he is entitled to reimbursement for what he had spent for the construction.7 Accordingly, the CA concluded, as follows: Going by the records, we hold that plaintiff-appellee in this case was not able to show by clear preponderance of evidence that his son and the defendant-appellant were not financially capable of purchasing said property. Neither was plaintiff-appellee able to prove by clear preponderance of evidence (i.e., credible documentary evidence) that the money used to purchase the said properties really came from him. (And even if we assume that it came from him, it would still not establish an implied trust, as it would again be considered a donation, or a gift, by express mandate of the saving clause of Art. 1448 of the Civil Code, as heretofore stated). If anything, what is clear from the evidence at bench is that Alexander and the defendant-appellant were not exactly bereft of the means, the financial capability or resources, in their own right, to purchase, or acquire, the Meridien Condominium and the Wack-Wack property. The evidence on record shows that Alexander Ty was 31 years old when he purchased the Meridien Condominium and was 33 years old when he purchased the Wack-Wack property. In short, when he purchased these properties, he had already been working for at least nine years. He had a car care business and a beer garden business. He was actively engaged in the business dealings of several family corporations, from which he received emoluments and other benefits. As a matter of fact, Alexander and plaintiff-appellee had common interest in various family corporations of which they were stockholders, and officers and directors, such as: International Paper Industries, Inc.; Agro-Industries Specialists Services, Inc.; Hi-Professional Drillings and Manufacturing, Inc.; MVR-TV Picture Tube, Inc.; Crown Consumer Products, Inc.; Philippine Crystal Manufacturing Corporation; and Union Emporium, Inc. Furthermore, at the time of his death, the son Alexander was Vice-President of Union Ajinomoto (Exh. "40"); Executive Vice-President of Royal Porcelain Corporation (Exh. "40-A"); Treasurer of Polymart Paper Industries, Inc. (Exh. "40-B"); General Manager of Hornblower Sales Enterprises and Intercontinental Paper Industries, Inc. (Exh. "40-C"); President of High Professional Drilling and Manufacturing, Inc. (Exh. "40-D"); President of Crown Consumer Products, Inc. (Exh. "40E"); (Executive Vice-President of MVR-TV Picture Tube, Inc. (Exh."40-F"); and Director of ABT Enterprise, Inc. (Exh. "40G"). He even had a controlling interest in ABT Enterprises, which has a majority interest in Union Ajinomoto, Inc. What is more, the tax declaration receipts for the Wack-Wack property covering the years 2000-2004, and the tax declaration receipts for the Meridien Condominium covering the years 2000-2001, showed that to his date it is still the estate of Alexander that is paying for the real estate taxes thereon. In the context of this formidable circumstances, we are constrained to overturn the judgment of the trial court, which made these findings: Based on the facts at hand and the applicable law, the ineluctable conclusion is that a fiduciary relationship or an implied trust existed between plaintiff and Alexander Ty with the former as the owner, trustor and beneficiary and the latter as the trustee, concerning the subject real properties. The death of Alexander automatically extinguished the said fiduciary relationship, hence, plaintiff s instant action to recover the subject properties from the intestate estate of Alexander Ty is meritorious. We do not agree. To belabor a point, we are not persuaded that an implied trust was created concerning the subject properties. On the assumption, as elsewhere indicated, the plaintiff-appellee at the very least, paid for part of its purchase price, the EDSA property is presumed to be a gift, or donation, in favor of Alexander Ty, defendant-appellant s late husband, following the saving clause or exception in Art. 1448 of the Civil Code. To repeat, it is the saving clause, or exception, not the general rule, that should here apply, the late Alexander Ty being the son of Plaintiff-appellee. Nor are we convinced, given the state of the evidence on record, that the plaintiff-appellee paid for the price of the Meridien Condominium and the Wack-Wack property. Therefore, the general rule announced in the first sentence of

Art. 1448 of the Civil Code has no application in this case. Or, if the article is to be applied at all, it should be the exception, or the saving clause, that ought to apply here, the deceased Alexander Ty being the son, as stated, of plaintiff-appellee. To sum up: Since plaintiff-appellee has erected his case upon Art. 1448 of the Civil Code, a prime example of an implied trust, viz.: that it was he who allegedly paid for the purchase price of some of the realties subject of this case, legal title or estate over which he allegedly granted or conveyed unto his son and namesake, Alexander Ty, for the latter to hold these realties in trust for his siblings in case of his (plaintiff-appellee s) demise, plaintiff-appellee is charged with the burden of establishing the existence of an implied trust by evidence described or categorized as "sufficiently strong," "clear and satisfactory," or "trustworthy." As will be presently discussed. Sad to say, plaintiff-appellee has miserably failed to discharge that burden. For, if the records are any indication, the evidence adduced by plaintiff-appellee on this score, can hardly merit the descriptive attributes "sufficiently strong," or "clear and satisfactory," or "trustworthy." If only to emphasize and reiterate what the Supreme Court has in the past declared about implied trusts, these case law rulings are worth mentioning Where a trust is to be established by oral proof, the testimony supporting it must be sufficiently strong to prove that the right of the alleged beneficiary with as much certainty as if a document were shown. A trust cannot be established, contrary to the recitals of a Torrens title, upon vague and inconclusive proof. As a rule, the burden of proving the existence of a trust is on the party asserting its existence, and such proof must be clear and satisfactorily show the existence of the trust and its elements. While implied trusts may be proved by oral evidence, the evidence must be trustworthy and received by the courts with extreme caution and should not be made to rest on loose, equivocal or indefinite declarations. Trustworthy evidence is required because oral evidence can easily be fabricated. The route to the reversal of the trial court s finding that an implied trust had been constituted over the subject realties is, thus, indubitably clear. As a final point, this Court finds that the plaintiff-appellee is not entitled to moral damages, attorney s fees and costs of litigation, considering that the instant case is clearly a vexatious and unfounded suit by him filed against the estate of the late Alejandro Ty. Hence, all these awards in the judgment a quo are hereby DELETED.8 The CA therefore reversed and set aside the judgment appealed from and entered another one dismissing the complaint. On October 18, 2004 the CA resolved to deny therein plaintiff-appellee s motion for reconsideration.9 Hence, this petition. Petitioner submits the following grounds: IN REVERSING THE TRIAL COURT S JUDGMENT, THE COURT OF APPEALS 1. MADE FACTUAL FINDINGS GROUNDED ON MANIFESTLY MISTAKEN INFERENCES, SPECULATIONS, SURMISES, OR CONJECTURES OR PREMISED ON THE ABSENCE OF, OR ARE CONTRADICTED BY, THE EVIDENCE ON RECORD, AND WITHOUT CITATIONS OF THE SPECIFIC EVIDENCE ON WHICH THEY ARE BASED. 2. RULED THAT THERE WAS A "PRESUMED DONATION", WHICH IS A MATTER NEVER RAISED AS AN ISSUE IN THE CASE AS IT, IN FACT, CONFLICTS WITH THE PARTIES RESPECTIVE THEORIES OF THE CASE, AND THUS DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS AS TO CALL FOR THIS HONORABLE COURT S EXERCISE OF ITS POWER OF SUPERVISION. 3. APPLIED THE PROVISION ON PRESUMPTIVE DONATION IN FAVOR OF A CHILD IN ARTICLE 1448 OF THE CIVIL CODE DESPITE AB TY S EXPRESS DECLARATION THAT HE DID NOT INTEND TO DONATE THE SUBJECT PROPERTIES TO ALEXANDER AND THUS DECIDED A QUESTION OF SUBSTANCE NOT THERETOFORE DETERMINED BY THIS HONORABLE COURT.

4. REQUIRED THAT THE IMPLIED TRUST BE PROVEN WITH DOCUMENTARY EVIDENCE AND THUS DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW AND JURISPRUDENCE.10 The Court disposes of the petition, as follows: The EDSA Property Petitioner contends that the EDSA property, while registered in the name of his son Alexander Ty, is covered by an implied trust in his favor under Article 1448 of the Civil Code. This, petitioner argues, is because he paid the price when the property was purchased and did so for the purpose of having the beneficial interest of the property. Article 1448 of the Civil Code provides: Art. 1448. There is an implied trust when property is sold, and the legal estate is granted to one party but the price is paid by another for the purpose of having the beneficial interest of the property. The former is the trustee, while the latter is the beneficiary. However, if the person to whom the title is conveyed is a child, legitimate or illegitimate, of one paying the price of the sale, no trust is implied by law, it being disputably presumed that there is a gift in favor of the child. The CA conceded that at least part of the purchase price of the EDSA property came from petitioner. However, it ruled out the existence of an implied trust because of the last sentence of Article 1448: x x x However, if the person to whom the title is conveyed is a child, legitimate or illegitimate, of the one paying the price of the sale, no trust is implied by law, it being disputably presumed that there is a gift in favor of the child. Petitioner now claims that in so ruling, the CA departed from jurisprudence in that such was not the theory of the parties. Petitioner, however, forgets that it was he who invoked Article 1448 of the Civil Code to claim the existence of an implied trust. But Article 1448 itself, in providing for the so-called purchase money resulting trust, also provides the parameters of such trust and adds, in the same breath, the proviso: "However, if the person to whom the title is conveyed is a child, legitimate or illegitimate, of the one paying the price of the sale, NO TRUST IS IMPLIED BY LAW, it being disputably presumed that there is a gift in favor of the child." (Emphasis supplied.) Stated otherwise, the outcome is the necessary consequence of petitioner s theory and argument and is inextricably linked to it by the law itself. The CA, therefore, did not err in simply applying the law. Article 1448 of the Civil Code is clear. If the person to whom the title is conveyed is the child of the one paying the price of the sale, and in this case this is undisputed, NO TRUST IS IMPLIED BY LAW. The law, instead, disputably presumes a donation in favor of the child. On the question of whether or not petitioner intended a donation, the CA found that petitioner failed to prove the contrary. This is a factual finding which this Court sees no reason the record to reverse. The net effect of all the foregoing is that respondent is obliged to collate into the mass of the estate of petitioner, in the event of his death, the EDSA property as an advance of Alexander s share in the estate of his father,11 to the extent that petitioner provided a part of its purchase price. The Meridien Condominium and the Wack-Wack property. Petitioner would have this Court overturn the finding of the CA that as regards the Meridien Condominium and the Wack-Wack property, petitioner failed to show that the money used to purchase the same came from him. Again, this is clearly a factual finding and petitioner has advanced no convincing argument for this Court to alter the findings reached by the CA.

The appellate court reached its findings by a thorough and painstaking review of the records and has supported its conclusions point by point, providing citations from the records. This Court is not inclined to reverse the same. Among the facts cited by the CA are the sources of income of Alexander Ty who had been working for nine years when he purchased these two properties, who had a car care business, and was actively engaged in the business dealings of several family corporations, from which he received emoluments and other benefits.12 The CA, therefore, ruled that with respect to the Meridien Condominium and the Wack-Wack property, no implied trust was created because there was no showing that part of the purchase price was paid by petitioner and, on the contrary, the evidence showed that Alexander Ty had the means to pay for the same. WHEREFORE, the petition is PARTLY GRANTED in that the Decision of the Court of Appeals dated July 27, 2004 and its Resolution dated October 18, 2004, in CA-G.R. No. 66053, are AFFIRMED, with the MODIFICATION that respondent is obliged to collate into the mass of the estate of petitioner, in the event of his death, the EDSA property as an advance of Alexander Ty s share in the estate of his father, to the extent that petitioner provided a part of its purchase price. No costs. SO ORDERED.

CHUA V. SORIANO Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the Decision1 dated September 21, 2001 of the Court of Appeals (CA) in CA-G.R. CV No. 56568 which affirmed with modification the Decision2 dated July 10, 1997 of the Regional Trial Court, Branch 81, Quezon City (RTC) in Civil Case No. Q-90-6439. The factual background of the case is as follows: Msgr. Virgilio C. Soriano (Soriano) owned a 1,600 square meter parcel of land located in Barangay Banlat, Quezon City, covered by Transfer Certificate of Title (TCT) No. 363471 of the Registry of Deeds of Quezon City. Sometime in the early months of 1988, Soriano s first cousin and godson, Emmanuel C. Celestino, Sr. (Celestino) asked Soriano to lend him TCT No. 363471 as a security for a loan to be used in the business operation of Celestino s company, Digital Philippines, Inc.3 Acceding to Celestino s request, Soriano executed on March 29, 1988 a Special Power of Attorney (SPA) authorizing Celestino to mortgage said property.4 Then came the June 11, 1988 fire that gutted a portion of the Quezon City Hall and destroyed in the process the original copy of TCT No. 363471 on file with the Registry of Deeds of Quezon City. On August 22, 1988, Soriano executed a SPA authorizing Celestino and one Carlito Castro to initiate administrative reconstitution proceedings of TCT No. 363471.5 On April 17, 1990, the reconstituted title, TCT No. RT-3611 (363471) PR 1686, was issued.6 During the pendency of the administrative reconstitution proceedings, Soriano asked Celestino whether there was any truth to the spreading rumor that he had already sold the subject property.7 Celestino denied the rumor but informed Soriano that the subject property was mortgaged with a foreign bank.8 Dissatisfied with Celestino's explanation, Soriano made inquiries with the Registry of Deeds of Quezon City9 and discovered, to his dismay, that TCT No. 363471 had been canceled by TCT No. 1451410 in the name of spouses Emmanuel and Edna Chua and spouses Manuel and Maria Chua (Chuas). By virtue of a SPA11 dated March 9, 1989 with Soriano's purported signature, Celestino sold to the Chuas the property in an Absolute Deed of Sale12 dated July 4, 1989 for P500,000.00. Claiming that his signature in the SPA is a forgery, Soriano filed on August 20, 1990 a complaint against Celestino and the Chuas for annulment of deed of sale and special power of attorney, cancellation of title and reconveyance with damages.13

The defense of Celestino is that he was duly authorized to sell the property14 while the Chuas contend that they are purchasers in good faith since they bought the property from Celestino by virtue of a SPA which was duly inscribed and annotated on the owner's duplicate of the TCT and the tax declaration and that they have duly inspected the property before purchasing it.15 Soriano died during the pendency of the trial.16 He was substituted by his sister, Florencia Celestino Soriano, also known as Sister Mary Virgilia Celestino Soriano (Sis. Soriano).17 On July 10, 1997, the RTC rendered its Decision18 in favor of Soriano, the dispositive portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered as follows: 1. Declaring the special power of attorney dated March 19, 1985 and the Deed of Sale dated July 4, 1989 as without legal force and effect; 2. Declaring Transfer Certificate of Title No. 14514 in the name of the defendants Chuas as null and void; 3. Directing defendants Chuas to reconvey the subject property to plaintiff Soriano. 4. Ordering defendant Celestino to pay to the plaintiff the amounts of P100,000.00 as moral damages, P20,000.00 as attorney s fees and P10,000.00 as litigation expenses; 5. Ordering defendant Celestino to pay to the defendants Chuas the amount of P500,000.00 plus interest at the legal rate from July 4, 1989 until fully paid; 6. Ordering defendant Celestino to pay the defendants Chuas the amounts of P20,000.00 as attorney s fees and P10,000.00 as litigation expenses. With costs against defendant Celestino. SO ORDERED.19 The RTC held that Soriano's purported signature in the SPA dated March 9, 1989 is a forgery based on the opinion of expert witness Arcadio A. Ramos, Chief of the Questioned Documents Division of the National Bureau of Investigation (NBI), that a comparison of Soriano's sample signature and the one appearing on the SPA dated March 9, 1989 revealed that they were "not written by one and the same person;"20 that the Chuas are not purchasers in good faith since they did not personally verify the title of the subject property but relied only upon its tax declaration; that the Chuas were placed on guard to ascertain the authenticity of the authority of Celestino since they were not dealing with Soriano, the registered owner. Dissatisfied, Celestino and the Chuas filed separate appeals with the CA, docketed singly as CA-G.R. No. 56568.21 On September 21, 2001, the CA rendered its Decision,22 the dispositive portion of which reads: WHEREFORE, for the lack of merit, this Court DISMISSES the appeal and AFFIRMS the appealed Decision except paragraph number 3 of the dispositive part which is hereby completely DELETED and replaced with the following: 3. The Register of Deeds of Quezon City is ordered to reinstate and reactivate Transfer Certificate of Title No. RT-3611 (363471) PR-1686 in the name of appellee Soriano. SO ORDERED.23 The CA held that that there was no cogent reason to set aside the RTC s reliance on the testimony of the expert witness since there is no contrary evidence to rebut the same. The CA also agreed with the RTC s findings that the Chuas are not purchasers in good faith since they failed to determine the veracity of Celestino s alleged authority to sell the property. No appeal was filed by Celestino. The Chuas filed the present petition anchored on the following grounds: THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION IN A WAY NOT PROBABLY IN ACCORD WITH THE LAW AND WITH THE DECISIONS OF THE HONORABLE SUPREME COURT; AND

THE HONORABLE COURT OF APPEALS HAS SO FAR DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS.24 The Chuas argue that they are purchasers in good faith since they dealt with Celestino who had in his possession the owner's duplicate title and the SPA dated March 9, 1989 with Soriano s purported signature; that the SPA was inscribed and annotated in the owner's duplicate title; that since verification with the original title in the Registry of Deeds of Quezon City was not possible, they checked the tax declaration of the property; that the SPA dated March 9, 1989 was duly annotated in the tax declaration; that they inspected the property and found three squatter occupants; that they paid off the two squatters and appointed the third squatter occupant as caretaker of the property; that Soriano was responsible for his predicament since he entrusted the owner s duplicate title to Celestino; that the fact that Soriano s purported signature in the SPA dated March 9, 1989 was later declared by the NBI handwriting expert as a forgery is of no moment since they are not handwriting experts and they had the right to assume that the SPA was perfectly legal for otherwise, it could not have been annotated at the back of the title. Sis. Soriano, on the other hand, avers that the Chuas are not purchasers in good faith since they failed to check the veracity of Celestino's alleged authority to sell the property; that had the Chuas conferred with Soriano about the sale transaction proposed by Celestino, they would have readily discovered the fraud being then hatched by Celestino. Emmanuel Chua died during the pendency of the present petition.25 He was substituted by his surviving spouse and copetitioner, Edna L. Chua, and his children, Erlyn, Ericson, Emmanuel and Elise, all surnamed Chua.26 The sole issue to be resolved in the present petition is this: whether or not the Chuas are purchasers in good faith. The question of whether or not a person is a purchaser in good faith is a factual matter that will generally be not delved into by this Court, since only questions of law may be raised in petitions for review.27 The established rule is that in the exercise of the Supreme Court s power of review, the Court, not being a trier of facts, does not normally embark on a re-examination of the evidence presented by the contending parties during the trial of the case considering that the findings of facts of the CA are conclusive and binding on the Court.28 This rule, however, has several well-recognized exceptions: (1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner s main and reply briefs are not disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion.29 Exception (4) is present in the instant case. A purchaser in good faith is one who buys property without notice that some other person has a right to or interest in such property and pays its fair price before he has notice of the adverse claims and interest of another person in the same property. The honesty of intention which constitutes good faith implies a freedom from knowledge of circumstances which ought to put a person on inquiry.30 As the Court enunciated in Lim v. Chuatoco:31 x x x good faith consists in the possessor s belief that the person from whom he received the thing was the owner of the same and could convey his title. Good faith, while it is always to be presumed in the absence of proof to the contrary, requires a well founded belief that the person from whom title was received was himself the owner of the land, with the right to convey it. There is good faith where there is an honest intention to abstain from taking any unconscientious advantage from another. Otherwise stated, good faith is the opposite of fraud and it refers to the state of mind which is manifested by the acts of the individual concerned.32 Consistently, this Court has ruled that every person dealing with registered land may safely rely on the correctness of the certificate of title issued therefor and the law will in no way oblige him to go beyond the certificate to determine the condition of the property. Where there is nothing in the certificate of title to indicate any cloud or vice in the ownership

of the property, or any encumbrance thereon, the purchaser is not required to explore further than what the Torrens Title upon its face indicates in quest for any hidden defects or inchoate right that may subsequently defeat his right thereto.33 However, when a person who deals with registered land through someone who is not the registered owner, he is expected to look behind the certificate of title and examine all the factual circumstances, in order to determine if the vendor has the capacity to transfer any interest in the land.34 He has the duty to ascertain the identity of the person with whom he is dealing and the latter s legal authority to convey.35 The law "requires a higher degree of prudence from one who buys from a person who is not the registered owner, although the land object of the transaction is registered. While one who buys from the registered owner does not need to look behind the certificate of title, one who buys from one who is not the registered owner is expected to examine not only the certificate of title but all factual circumstances necessary for him to determine if there are any flaws in the title of the transferor, or in his capacity to transfer the land."36 The strength of buyer s inquiry on the seller s capacity or legal authority to sell depends on the proof of capacity of the seller. If the proof of capacity consists of a special power of attorney duly notarized, mere inspection of the face of such public document already constitutes sufficient inquiry. If no such special power of attorney is provided or there is one but there appear flaws in its notarial acknowledgment, mere inspection of the document will not do; the buyer must show that his investigation went beyond the document and into the circumstances of its execution.37 In the present case, the Chuas were dealing with Celestino, Soriano s attorney-in-fact, who presented Soriano s duplicate title, a SPA dated March 9, 1989 with Soriano s purported signature, and tax declaration. An examination of the assailed SPA shows that it is valid and regular on its face. It contains a notarial seal.38 A notarial seal is a mark, image or impression on a document which would indicate that the notary public has officially signed it.39 The long-standing rule is that documents acknowledged before a notary public have the evidentiary weight with respect to their due execution and regularity.40 The assailed SPA is a notarized document and therefore, presumed to be valid and duly executed. Thus, the reliance by the Chuas on the notarial acknowledgment found in the duly notarized SPA presented by Celestino is sufficient evidence of good faith. The Chuas need not prove anything more for it is already the function of the notarial acknowledgment to establish the appearance of the parties to the document, its due execution and authenticity.41 Moreover, the SPA was accepted by the Register of Deeds. It was registered with the Registry of Deeds of Quezon City42 and inscribed and annotated in the owner's duplicate title,43 further bolstering the appearance of due execution and regularity. The fact that Soriano's purported signature in the SPA dated March 9, 1989 was declared to be a forgery does not alter the Chuas status as purchasers in good faith. The Court's recent pronouncements in Bautista v. Silva44 are enlightening to quote: When the document under scrutiny is a special power of attorney that is duly notarized, we know it to be a public document where the notarial acknowledgment is prima facie evidence of the fact of its due execution. A purchaser presented with such a document would have no choice between knowing and finding out whether a forger lurks beneath the signature on it. The notarial acknowledgment has removed the choice from him and replaced it with a presumption sanctioned by law that the affiant appeared before the notary public and acknowledged that he executed the document, understood its import and signed it. In reality, he is deprived of such choice not because he is incapable of knowing and finding out but because, under our notarial system, he has been given the luxury of merely relying on the presumption of regularity of a duly notarized SPA. And he cannot be faulted for that because it is precisely that fiction of regularity which holds together commercial transactions across borders and time.45 Thus, the fact that Soriano s signature in the SPA dated March 9, 1989 was subsequently declared by the trial court to have been falsified would not revoke the title subsequently issued title in favor of the Chuas. With the property in question having already passed to the hands of purchasers in good faith, it is now of no moment that some irregularity

attended the issuance of the SPA, consistent with our pronouncement in Heirs of Spouses Benito Gavino and Juana Euste v. Court of Appeals,46 to wit: x x x, the general rule that the direct result of a previous void contract cannot be valid, is inapplicable in this case as it will directly contravene the Torrens system of registration. Where innocent third persons, relying on the correctness of the certificate of title thus issued, acquire rights over the property, the court cannot disregard such rights and order the cancellation of the certificate. The effect of such outright cancellation will be to impair public confidence in the certificate of title. The sanctity of the Torrens system must be preserved; otherwise, everyone dealing with the property registered under the system will have to inquire in every instance as to whether the title had been regularly or irregularly issued, contrary to the evident purpose of the law.47 Being purchasers in good faith, the Chuas already acquired valid title to the property. A purchaser in good faith holds an indefeasible title to the property and he is entitled to the protection of the law. Accordingly, TCT No. 14514 issued in the name of the Chuas is valid. The amount of P500,000.00, representing the purchase price in the Absolute Deed of Sale48 dated July 4, 1989, which the RTC directed Celestino to pay to the Chuas should instead be paid to Soriano as part of the actual damages awarded to him. Such amount shall earn interest rate of 6% from August 20, 1990, the time of the filing of the complaint until its full payment before finality of judgment. After the judgment becomes final and executory until the obligation is satisfied, the amount due shall earn interest at 12% per year, the interim period being deemed equivalent to a forbearance of credit.49 For the Court to uphold the effects of a SPA that is rooted in falsity may be disconcerting. Yet whatever sympathies may be judicially appreciated for the deceived party must be balanced in deference to the protection afforded by law to the purchaser in good faith. If such innocence or good faith is established by the evidence, or insufficiently rebutted by the disputant, then the corresponding duty of the Court is simply to affirm the rights of the purchaser in good faith. It is mischief at worse, and error at least, for a court to misread or inflate the facts to justify a ruling for the defrauded party, no matter how wronged he or she may be.50 WHEREFORE, the petition is GRANTED. Petitioners are hereby declared purchasers in good faith. Accordingly, the Decision of the Court of Appeals dated September 21, 2001 in CA-G.R. CV No. 56568 is PARTLY REVERSED and SET ASIDE insofar as it affirms the Decision of the Regional Trial Court, Branch 81, Quezon City dated July 10, 1997 in Civil Case No. Q-90-6439 finding the Chuas as purchasers in bad faith. The Decision dated July 10, 1997 of the Regional Trial Court, Branch 81, Quezon City (RTC) in Civil Case No. Q-90-6439 is MODIFIED to read as follows: 1. Declaring the special power of attorney dated March 9, 1985 and the Deed of Sale dated July 4, 1989 and the Transfer Certificate of Title No. 14514 in the name of the defendants Chuas as valid; 2. Ordering Celestino to pay plaintiff the amount of P500,000.00 as actual damages, with interest rate of 6% p.a. computed from the time of the filing of the complaint until its full payment before finality of judgment; thereafter, if the amount adjudged remains unpaid, the interest rate shall be 12% p.a. computed from the time the judgment becomes final and executory until fully satisfied; 3. Ordering defendant Celestino to pay to the plaintiff the amounts of P100,000.00 as moral damages, P20,000.00 as attorney s fees and P10,000.00 as litigation expenses; With costs against defendant Celestino. SO ORDERED.

DOMINGO V. DOMINGO This is a petition for review under Rule 45 of the Rules of Court of the Decision1 dated November 26, 2001 in CA-G.R. CV No. 59331, of the Court of Appeals, which affirmed the Judgment dated January 6, 1998 of the Regional Trial Court (RTC)

of Quezon City, Branch 90, in Civil Case No. Q-89-3820. The trial court dismissed herein petitioner s complaint in Civil Case No. Q-89-3820 for declaration of the nullity of a deed of absolute sale over a house and lot located at Project 4, Quezon City.2 Petitioner is the oldest of the five children of the late Bruno B. Domingo, formerly the registered owner of the properties subject of this dispute. Private respondents Leonora Domingo-Castro, Nuncia Domingo-Balabis, Abella Domingo, and Jose Domingo are petitioner s siblings. A family quarrel arose over the validity of the purported sale of the house and lot in Project 4 by their father to private respondents. The facts of this case, as synthesized from the findings of the trial court and affirmed by the court a quo, are as follows: Bruno B. Domingo, a widower and retired military man, was the registered owner, as shown by Transfer Certificate of Title (TCT) No. 128297, issued by the Register of Deeds of Quezon City, of a house and lot with an area of 269.50 square meters, located at 34 H. Honrubia St., Project 4, Quezon City. In December 1970, Bruno needed money for his medical expenses, so he sold said properties. On December 28, 1970, he signed a Deed of Absolute Sale conveying the abovementioned properties to his children Leonora, Nuncia, Abella, and Jose for a consideration of P10,000. The deed was witnessed by Concesa Ibaez and Linda Noroa and notarized by Atty. Rosauro V. Noroa.3 Jose then brought the deed to the Register of Deeds of Quezon City, as a result of which TCT No. 128297 was cancelled and a new title, TCT No. 247069 was issued in the names of the vendees. Bruno Domingo died on April 6, 1975.4 Sometime in 1981 petitioner, who by then was residing on the disputed property, received a notice from the Quezon City Hall declaring him a squatter and directing him to demolish his shanty on the lot. Petitioner found out that the planned demolition was at the instance of his brother, Jose and sister, Leonora. Sometime in 1986, petitioner learned of the existence of the assailed Deed of Absolute Sale when an ejectment suit was filed against him. Upon advice of his counsel, he had the then Philippine Constabulary-Integrated National Police (PCINP, now Philippine National Police or PNP) Crime Laboratory in Camp Crame, Quezon City compare the signature of Bruno on the said deed against specimen signatures of his father. As a result, the police issued him Questioned Document Report No. 192-86 to the effect that the questioned signature and the standard signatures were written by two different persons. Another Questioned Document Report, No. 007-89, subsequently issued by the police came up with the same conclusion. Petitioner filed a complaint for forgery, falsification by notary public, and falsification by private individuals against his siblings and Atty. Noroa before the public prosecutor of Quezon City. But after it conducted an examination of the questioned documents, the National Bureau of Investigation (NBI) came up with the conclusion that the questioned signature and the specimen signatures were written by one and the same person, Bruno B. Domingo. The public prosecutor dismissed the criminal complaint on June 22, 1989. Petitioner appealed the order of dismissal to the Department of Justice (DOJ) but the latter affirmed the prosecutor s action. A similar criminal complaint filed by petitioner before the public prosecutor of Manila was likewise dismissed. On October 23, 1989, petitioner instituted Civil Case No. Q-89-3820 before the RTC of Quezon City for the declaration of the nullity of the Deed of Sale, reconveyance of the disputed property, and cancellation of TCT No. 247069. Petitioner alleged that Bruno B. Domingo s signature on the deed in question was forged. He likewise averred that the sale was done in violation of the restriction annotated at the back of Bruno s title, to the effect that prior approval of the People s Homesite and Housing Corporation (PHHC)5 was needed to effect any sale. In their answer, private respondents relied heavily on the findings of the NBI that Bruno B. Domingo s signature on the deed was genuine, and hence, the Deed of Absolute Sale was not a forgery. On January 6, 1998, the trial court disposed of Civil Case No. Q-89-3820 in this wise:

IN VIEW OF THE FOREGOING, judgment is rendered DISMISSING the complaint in this case. All other claim/s including counterclaim/s are dismissed for lack of legal and/or factual basis. SO ORDERED.6 In dismissing the complaint, the trial court disregarded the conflicting reports of the police crime laboratory and the NBI for failure of the offering party or parties to show that the standard or specimen signatures were indeed those of Bruno B. Domingo. 7 The trial court likewise found that petitioner failed to substantiate his claim that prior PHHC approval was needed before a valid sale of the properties in dispute could be made. Dissatisfied, petitioner elevated the case to the Court of Appeals, which docketed his appeal as CA-G.R. CV No. 59331. He contended that the lower court erred in ruling that the vendor s signature on the Deed of Absolute Sale of December 28, 1970 was not a forgery. On January 11, 2000, petitioner filed a motion for new trial with the appellate court on the ground of newly discovered evidence consisting of a letter of Bruno B. Domingo dated February 1, 1972 purportedly requesting from PHHC permission to mortgage the house and lot in Project 4, Quezon City. Also on March 22, 2000, petitioner filed a supplemental motion for new trial with the Court of Appeals, attaching the letter dated February 2, 1972, of PHHC to Bruno B. Domingo, granting the latter s request on July 6, 2000. Petitioner moved that the appellate court grant him authority to put up a sari-sari store on a portion of the disputed lot, allegedly to augment his meager pension. In its resolution dated December 29, 2000, the appellate court denied all foregoing motions.8 In denying the motions for new trial, the appellate court noted that there was no showing whatsoever that the letter-request could not have been discovered and produced prior to the trial below by the exercise of reasonable diligence and is of such a character as would probably change the result. 9 It likewise pointed out that both the motion for new trial and the supplemental motion for new trial were not accompanied by affidavits showing the facts constituting the grounds therefor and the newly discovered evidence. 10 On November 26, 2001, the appellate court decided CA-G.R. CV No. 59331 as follows: WHEREFORE, the appeal is DISMISSED and the appealed decision is AFFIRMED en toto. SO ORDERED.11 Hence, the instant petition for review interposed by petitioner grounded on the following reasons for allowance of writ: The declaration that the Deed of Absolute Sale dated December 28, 1970 was executed by Bruno B. Domingo over the properties covered by TCT No. 128297, is not valid, proper and legal, because said Deed of Absolute Sale was not executed by said Bruno B. Domingo, as per findings of the PC-INP in its laboratory examination, and that the said Deed of Absolute Sale was in violation of the prohibition annotated at the back of said title, and that the sale was done within the prohibited period of five (5) years. Moreover, said Bruno B. Domingo should not have requested for authority to mortgage the property in question from the People s Homesite and Housing Authority on February 1, 1972, if he really sold the same in 1970.12 The crucial issue for our resolution is: Did the court a quo err when it held that the trial court correctly applied the rules of evidence in disregarding the conflicting PC-INP and NBI questioned document reports? Before this Court, petitioner insists that both the trial court and the appellate court should have considered the PC-INP questioned document report as reliable, without showing any cogent reason or sufficient arguments why said report should be deemed reliable. Under the Rules of Court, the genuineness of a handwriting may be proved by the following: (1) A witness who actually saw the person writing the instrument;13

(2) A witness familiar with such handwriting and who can give his opinion thereon,14 such opinion being an exception to the opinion rule;15 (3) (4) A comparison by the court of the questioned handwriting and admitted genuine specimen thereof;16 and Expert evidence.17

The law makes no preference, much less distinction among and between the different means stated above in proving the handwriting of a person.18 It is likewise clear from the foregoing that courts are not bound to give probative value or evidentiary value to the opinions of handwriting experts, as resort to handwriting experts is not mandatory.19 In finding that the trial court correctly disregarded the PC-INP Crime Laboratory questioned document report, the appellate court observed: The PC-INP used as standards of comparison the alleged signatures of Bruno in two documents, namely: letter to the Bureau of Treasury dated April 1, 1958 and Republic Bank Check No. 414356 dated November 2, 1962. These documents precede by more than eight years the questioned Deed which was executed on December 30, 1970. This circumstance makes the PC-INP s finding questionable.20 We find no reason to disagree with the Court of Appeals. The passage of time and a person s increase in age may have decisive influence in his handwriting characteristics. Thus, in order to bring about an accurate comparison and analysis, the standards of comparison must be as close as possible in point of time to the suspected signature.21 As correctly found by the appellate court, the examination conducted by the PC-INP Crime Laboratory did not conform to the foregoing standard. Recall that in the case, the signatures analyzed by the police experts were on documents executed several years apart. A signature affixed in 1958 or in 1962 may involve characteristics different from those borne by a signature affixed in 1970. Hence, neither the trial court nor the appellate court may be faulted for refusing to place any weight whatsoever on the PC-INP questioned document report. We likewise sustain the trial court and the Court of Appeals concerning the testimonies of Clerma Domingo, Leonora, and Jose to the effect that they saw Bruno affixing his signature to the questioned deed.22 They were unrebutted. Genuineness of a handwriting may be proven, under Rule 132, Section 22, by anyone who actually saw the person write or affix his signature on a document. Petitioner has shown no reason why the ruling made by the trial court on the credibility of the respondent s witnesses below should be disturbed by us. Findings by the trial court as to the credibility of witnesses are accorded the greatest respect, and even finality by appellate courts, since the former is in a better position to observe their demeanor as well as their deportment and manner of testifying during the trial.23 Finally, the questioned Deed of Absolute Sale in the present case is a notarized document. Being a public document, it is prima facie evidence of the facts therein expressed.24 It has the presumption of regularity in its favor and to contradict all these, evidence must be clear, convincing, and more than merely preponderant.25 Petitioner has failed to show that such contradictory evidence exists in this case. WHEREFORE, the instant petition is DENIED. The Decision of the Court of Appeals dated November 26, 2001 in CAG.R. CV No. 59331 is AFFIRMED. Costs against petitioner. SO ORDERED.