Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 108630 April 2, 1996 PHILIPPINE NATIONAL BAN , petitioner, vs. COURT O! APPEALS "#$ LORETO TAN, respondents.

ROMERO, J.:p Petitioner Philippine National an! "PN # $uestions the decision 1 of the Court of %ppeals partiall& affir'in( the )ud('ent of the Re(ional *rial Court, ranch ++, acolod Cit&. *he dispositive portion of the trial court,s decision states./ERE0ORE, pre'ises considered, the Court hereb& renders )ud('ent in favor of the plaintiff and a(ainst the defendants as follo1s2# Orderin( defendants to pa& plaintiff )ointl& and severall& the su' of P34,+56.66, 1ith le(al rate of interest to be co'puted fro' Ma& 4, 2787, date of filin( of this co'plaint until full& paid9 4# Orderin( defendants to pa& plaintiff )ointl& and severall& the su' of P:,666.66 as e;e'plar& da'a(es9 3# Orderin( defendants to pa& plaintiff )ointl& and severall& the su' of P:,666.66 as attorne&,s fees9 and +# *o pa& the costs of this suit. SO ORDERED. 2 *he facts are the follo1in(Private respondent <oreto *an "*an# is the o1ner of a parcel of land abuttin( the national hi(h1a& in Mandala(an, acolod Cit&. E;propriation proceedin(s 1ere instituted b& the (overn'ent a(ainst private respondent *an and other propert& o1ners before the then Court of 0irst Instance of Ne(ros Occidental, ranch IV, doc!eted as Civil Case No. 2474+.

*an filed a 'otion dated Ma& 26, 2785 re$uestin( issuance of an order for the release to hi' of the e;propriation price of P34,+56.66. On Ma& 44, 2785, petitioner PN " acolod ranch# 1as re$uired b& the trial court to release to *an the a'ount of P34,+56.66 deposited 1ith it b& the (overn'ent. On Ma& 4+, 2785, petitioner, throu(h its %ssistant ranch Mana(er =uan *a(a'olila, issued a 'ana(er,s chec! for P34,+56.66 and $%li&%r%$ '(% )"*% 'o o#% So#i" Go#+"," -i'(o.' T"#/) 0#o-l%$,%, 1o#)%#' or ".'(ori'2. Sonia >on?a(a deposited it in her account 1ith 0ar East an! and *rust Co. "0E *C# and later on 1ithdre1 the said a'ount. Pri&"'% r%)po#$%#' T"# ).3)%4.%#'l2 $%*"#$%$ p"2*%#' i# '(% "*o.#' o5 P32,680.00 5ro* p%'i'io#%r, 3.' '(% )"*% -") r%5.)%$ o# '(% ,ro.#$ '("' p%'i'io#%r ("$ "lr%"$2 p"i$ "#$ $%li&%r%$ '(% "*o.#' 'o So#i" Go#+"," o# '(% )'r%#,'( o5 " Sp%1i"l Po-%r o5 A''or#%2 7SPA8 "ll%,%$l2 %9%1.'%$ i# (%r 5"&or 32 T"#. On =une 5, 2785, *an e;ecuted an affidavit before petitioner,s la1&er, %le)andro S. So'e, statin( that2# he had never e;ecuted an& Special Po1er of %ttorne& in favor of Sonia S. >on?a(a9 4# he had never authori?ed Sonia >on?a(a to receive the su' of P34,+56.66 fro' petitioner9 3# he si(ned a 'otion for the court to issue an Order to release the said su' of 'one& to hi' and (ave the sa'e to Mr. Nilo >on?a(a "husband of Sonia# to be filed in court. /o1ever, after the Order 1as subse$uentl& issued b& the court, a certain En(ineer Decena of the /i(h1a& En(ineer,s Office issued the authorit& to release the funds not to hi' but to Mr. >on?a(a. .hen he failed to recover the a'ount fro' PN , private respondent filed a 'otion 1ith the court to re$uire PN to pa& the sa'e to hi'. Petitioner filed an opposition contendin( that Sonia >on?a(a presented to it a cop& of the Ma& 44, 2785 order and a special po1er of attorne& b& virtue of 1hich petitioner delivered the chec! to her. *he 'atter 1as set for hearin( on =ul& 42, 2785 and petitioner 1as directed b& the court to produce the said special po1er of attorne& thereat. /o1ever, petitioner failed to do so. *he court decided that there 1as need for the 'atter to be ventilated in a separate civil action and thus private respondent filed a co'plaint 1ith the Re(ional *rial Court in acolod Cit& " ranch ++# a(ainst petitioner and =uan *a(a'olila, PN ,s %ssistant ranch Mana(er, to recover the said a'ount. In its defense, petitioner contended that private respondent had dul& authori?ed Sonia >on?a(a to act as his a(ent.

On Septe'ber 45, 2787, petitioner filed a third@part& co'plaint a(ainst the spouses Nilo and Sonia >on?a(a pra&in( that the& be ordered to pa& private respondent the a'ount of P34,+56.66. /o1ever, 5or 5"il.r% o5 p%'i'io#%r 'o ("&% '(% ).**o#) )%r&%$ o# '(% Go#+",") $%)pi'% oppor'.#i'i%) ,i&%# 'o i', '(% '(ir$:p"r'2 1o*pl"i#' -") $i)*i))%$. *a(a'olila, in his ans1er, stated that Sonia >on?a(a presented a Special Po1er of %ttorne& to hi' but borro1ed it later 1ith the pro'ise to return it, clai'in( that she needed it to encash the chec!. On =une 8, 2757, the trial court rendered )ud('ent orderin( petitioner and *a(a'olila to pa& private respondent )ointl& and severall& the a'ount of P34,+56.66 1ith le(al interest, da'a(es and attorne&,s fees. oth petitioner and *a(a'olila appealed the case to the Court of %ppeals. In a resolution dated %pril 5, 2772, the appellate court dis'issed *a(a'olila,s appeal for failure to pa& the doc!et fee 1ithin the re(le'entar& period. On %u(ust 32, 2774, the Court of %ppeals affir'ed the decision of the trial court a(ainst petitioner, 1ith the 'odification that the a1ard of P:,666.66 for e;e'plar& da'a(es and P:,666.66 for attorne&,s fees b& the trial court 1as deleted. /ence, this petition. Petitioner PN states that the issue in this case is 1hether or not the SP% ever e;isted. It ar(ues that the e;istence of the SP% need not be proved b& it under the Abest evidence ruleA because it alread& proved the e;istence of the SP% fro' the testi'onies of its 1itnesses and b& the certification issued b& the 0ar East an! and *rust Co'pan& that it allo1ed Sonia >on?a(a to encash *an,s chec! on the basis of the SP%. .e find the petition un'eritorious. *here is no $uestion that no pa&'ent had ever been 'ade to private respondent as the chec! 1as never delivered to hi'. .hen the court ordered petitioner to pa& private respondent the a'ount of P34,+56.66, it had the obli(ation to deliver the sa'e to hi'. Bnder Ar'. 1233 o5 '(% Ci&il Co$%, " $%3' )("ll #o' 3% .#$%r)'oo$ 'o ("&% 3%%# p"i$ .#l%)) '(% '(i#, or )%r&i1% i# -(i1( '(% o3li,"'io# 1o#)i)') (") 3%%# 1o*pl%'%l2 $%li&%r%$ or r%#$%r%$, ") '(% 1")% *"2 3%. *he burden of proof of such pa&'ent lies 1ith the debtor. 3 In the instant case, neither the SP% nor the chec! issued b& petitioner 1as ever presented in court. *he testi'onies of petitioner,s o1n 1itnesses re(ardin( the chec! 1ere conflictin(. *a(a'olila testified that the chec! 1as issued to the order of ASonia >on?a(a as attorne&@in@fact of <oreto *an,A 6 1hile Elvira *ibon, assistant cashier of PN " acolod ranch#, stated that the chec! 1as issued to the order of A<oreto *an.A ;

0urther'ore, contrar& to petitioner,s contention that all that is needed to be proved is the e;istence of the SP%, it is also necessar& for evidence to be presented re(ardin( the nature and e;tent of the alle(ed po1ers and authorit& (ranted to Sonia >on?a(a9 'ore specificall&, to deter'ine 1hether the docu'ent indeed authori?ed her to receive pa&'ent intended for private respondent. /o1ever, no such evidence 1as ever presented. Section 4, Rule 236 of the Rules of Court states thatSec. 4. Original writing must produced9 exceptions. *here can be no evidence of a 1ritin( the contents of 1hich is the sub)ect of in$uir&, other than the ori(inal 1ritin( itself, e;cept in the follo1in( cases"a# .hen the ori(inal has been lost, destro&ed, or cannot be produced in court9 "b# .hen the ori(inal is in the possession of the part& a(ainst 1ho' the evidence is offered, and the latter fails to produce it after reasonable notice9 "c# .hen the ori(inal is a record or other docu'ent in the custod& of a public officer9 "d# .hen the ori(inal has been recorded in an e;istin( record a certified cop& of 1hich is 'ade evidence b& la19 "e# .hen the ori(inal consists of nu'erous accounts or other docu'ents 1hich cannot be e;a'ined in court 1ithout (reat loss of ti'e and the fact sou(ht to be established fro' the' is onl& the (eneral result of the 1hole. Section +, Rule 236 of the Rules of Court allo1s the presentation of secondar& evidence 1hen the ori(inal is lost or destro&ed, thusSec. +. Secondary evidence when original is lost or destroyed . .hen the ori(inal 1ritin( has been lost or destro&ed, or cannot be produced in court, upon proof of its e;ecution and loss or destruction, or unavailabilit&, its contents 'a& be proved b& a cop&, or b& a recital of its contents in so'e authentic docu'ent, or b& the recollection of 1itnesses. Considerin( that the contents of the SP% are also in issue here, the 3%)' %&i$%#1% r.l% applies. /ence, onl& the ori(inal docu'ent "1hich has not been presented at all# is the best evidence of the fact as to 1hether or not private respondent indeed authori?ed Sonia >on?a(a to receive the chec! fro' petitioner. In the absence of such docu'ent, petitioner,s ar(u'ents re(ardin( due pa&'ent 'ust fail. Re(ardin( the a1ard of attorne&,s fees, 1e hold that private respondent *an is entitled to the sa'e. %rt. 4465 of the Civil Code allo1s attorne&,s fees to be a1arded if the clai'ant is co'pelled to liti(ate 1ith third persons or to incur e;penses to protect his interest b& reason of an un)ustified act or o'ission of the part& fro' 1ho' it is sou(ht. 6

In Rasonable v. NLRC, et al., < 1e held that 1hen a part& is forced to liti(ate to protect his ri(hts, he is entitled to an a1ard of attorne&,s fees. %s for the a1ard of e;e'plar& da'a(es, 1e a(ree 1ith the appellate court that the sa'e should be deleted. Bnder %rt. 4434 of the Civil Code, %9%*pl"r2 $"*",%) *"2 3% "-"r$%$ i5 " p"r'2 "1'%$ i# " -"#'o#, 5r".$.l%#', r%10l%)), oppr%))i&%, or *"l%&ol%#' *"##%r. /o1ever, the& cannot be recovered as a 'atter of ri(ht9 the court has &et to decide 1hether or not the& should be ad)udicated. 8 =urisprudence has set do1n the re$uire'ents for e;e'plar& da'a(es to be a1arded2. the& 'a& be i'posed b& 1a& of e;a'ple in addition to co'pensator& da'a(es, and onl& after the clai'ant,s ri(ht to the' has been established9 4. the& cannot be recovered as a 'atter of ri(ht, their deter'ination dependin( upon the a'ount of co'pensator& da'a(es that 'a& be a1arded to the clai'ant9 3. the act 'ust be acco'panied b& bad faith or done in a 1anton, fraudulent, oppressive or 'alevolent 'anner. 9 In the case at bench, 1hile there is a clear breach of petitioner,s obli(ation to pa& private respondents, there is no evidence that it acted in a fraudulent, 1anton, rec!less or oppressive 'anner. 0urther'ore, there is no a1ard of co'pensator& da'a(es 1hich is a prere$uisite before e;e'plar& da'a(es 'a& be a1arded. *herefore, the a1ard b& the trial court of P:,666.66 as e;e'plar& da'a(es is baseless. =HERE!ORE, '(% $%1i)io# o5 '(% Co.r' o5 App%"l) i) A!!IRME> -i'( '(% *o$i5i1"'io# '("' '(% "-"r$ 32 '(% R%,io#"l Tri"l Co.r' o5 P;,000.00 ") "''or#%2/) 5%%) i) REINSTATE>. SO OR>ERE>.