G.R. No.

174056
[Formerly G.R. No. 138257]

February

27,

2007

THE PEOPLE OF THE PHILIPPINES, Appellee

vs.
ROGELIO GUMIMBA y MORADANTE alias ROWING and
RONTE ABABO (acquitted), Appellants,
DECISION
TINGA, J.:
For review before the Court is the Decision1 of the Court of
Appeals (CA) dated 26 April 2006, affirming with modification
the Decision2 of the Regional Trial Court (RTC), Ozamiz City,
Branch 15,3 dated 10 March 1999, finding appellant guilty
beyond reasonable doubt of the crime of rape with homicide.
In an Information4 dated 17 April 1997, appellant Rogelio
Gumimba y Morandante alias Rowing and co-accused Ronie
Abapo (Abapo) were charged before the RTC, with the crime of
rape with homicide of an eight (8)-year old child, thus:
That on or about April 8, 1997, in Barangay Pantaon, Ozamiz
City, Philippines, and within the jurisdiction of this Honorable
Court,
the
above-named
accused,
conspiring
and
confederating with each other, did then and there willfully,
unlawfully and feloniously and by means of force, violence and
intimidation, to wit: by then and there pinning down one [AAA], 5
a minor, 8 years of age, and succeeded in having carnal
knowledge with her and as a result thereof she suffered 6-12
o'clock lacerated wounds of [sic] the vagina as well as fatal
stab wounds on the different parts of her body and which were
the direct cause of her death thereafter.
CONTRARY to Article 335 in relation with Article 249 of the
Revised Penal Code.
On 16 May 1997, appellant and Abapo both entered a plea of
not guilty on arraignment.6 Thereafter, the case proceeded to
trial with the prosecution first presenting two witnesses: (1)
Emelio Magallano, President of Purok I, Barangay Pantaon,
Ozamiz City; and (2) Sofronio Araas, a Civilian Volunteer
Officer (CVO) of the same barangay.
Magallano and Araas testified that at around 9 o'clock in the
evening of 10 April 1997, appellant went to Magallano's home
and confessed to him that he alone and by himself raped and
killed his (appellant's) niece, AAA, in Purok Pantaon, Ozamiz
City. Subsequently, Magallano accompanied appellant to the
residence of Araas where he reiterated his confession. That
same night, Magallano, Araas, appellant and family members
of the witnesses proceeded to the home of Barangay Captain
Santiago Acapulco, Jr. who conducted an investigation.
Appellant repeated his narration and confessed to the
barangay captain that he had raped and killed the victim, and
that he was alone when he committed the crime. As a result
thereof, Acapulco, Jr., in the company of the others, brought
appellant to the Ozamiz City Hall and turned him over to the
police authorities.7
However, appellant manifested though counsel (before the
court) at the following hearing on 22 May 1997 that he would
like to change his earlier plea of not guilty to a plea of guilty.8

The RTC ordered appellant's re-arraignment and the latter

accordingly entered a plea of guilty.9 The court conducted an
inquiry to ascertain the voluntariness of appellant's plea and
his full comprehension of the consequences thereof.
Prosecution was likewise charged to establish the guilt and
degree of culpability of appellant.10
In accordance with the court's directive, the prosecution
continued with the presentation of its evidence in chief. It
presented Dr. Pedrita Rosauro, the physician who conducted
the autopsy on the body of the victim, and who testified that the
victim was raped before she was killed. The examination by Dr.
Rosauro revealed that AAA sustained four (4) stab wounds in
front, two (2) stab wounds in her back and one (1) lacerated
wound each on her neck and on her middle upper extremity.
Furthermore, she found 6 and 12 o'clock laceration wounds on
the external genital organ of the victim.11
Before resting its case, the prosecution presented appellant as
witness against his co-accused Abapo. Appellant testified that
he and Abapo raped and killed the victim. He likewise
explained that he had previously confessed to Magallano,
Araas and Acapulco that he alone committed the crime in the
hope that the parents of the victim, who were relatives of his,
might take pity on him.12
In his defense, Abapo testified that at the time the crime was
allegedly committed, he was with his mother and three (3)
siblings at the Labo River, about two (2) kilometers away from
Barangay Pantaon, washing their clothes.13 In support thereof,
Abapo presented his mother Virgencita Abapo, Elisa Carreon
and Raymundo Orot, all of whom corroborated his alibi. 14 The
defense also presented witness Araas who reiterated his
earlier testimony that appellant confessed to him that he alone
was responsible for the raping and killing of the victim.15 Finally,
Eugenio Bucog, a teacher at Capucao Elementary School, was
presented to demonstrate Abapo's good character when he
was his student.16
On 10 March 1999, the RTC promulgated its Decision. On the
basis of appellant's plea of guilty, the RTC found him guilty
beyond reasonable doubt of the crime as charged. Appellant
was sentenced to suffer the death penalty and ordered to
indemnify the heirs of the victim in the amounts of P50,000.00
as indemnity for the life of the victim, P30,000.00 as moral
damages, and costs.17 On the other hand, the trial court
acquitted Abapo on the ground that his guilt was not
established beyond reasonable doubt. Except for the lone
testimony of appellant, the RTC held that no other evidence
was adduced to prove the participation of Abapo. Moreover, the
court a quo found that appellant's testimony implicating Abapo
was not worthy of credence coming as it did from a polluted
source.18
With the death penalty imposed on appellant, the case was
elevated to this Court on automatic review. Pursuant to this
Court's decision in People v. Mateo,19 the case was transferred
to the Court of Appeals.
On 26 April 2006, the appellate court rendered its Decision 20
affirming the appellant's conviction, but with modification as to
damages awarded to the heirs of the victim. The dispositive
portion of the said Decision states:

"WHEREFORE, premises considered, the instant Appeal is

DISMISSED for lack of merit. The Decision dated March 10,
1999 of the Regional Trial Court, Branch 15, of Ozami[s] City,
is hereby AFFIRMED with the MODIFICATION that the amount
of civil indemnity ex delicto is hereby increased from
P50,000.00 to P100,000.00, including the award of moral
damages from P30,000.00 to P50,000.00. Conformably with
the ruling of the Supreme Court in People of the Philippines v.
Efren Mateo, We refrain from entering judgment, and the
Division Clerk of Court is hereby directed to elevate the entire
records of the case to the Honorable Supreme Court for its
final disposition.
SO ORDERED."21
On 3 October 2006, the Court issued an order requiring the
parties to simultaneously submit supplemental briefs within
thirty (30) days from notice should they so desire. 22 On 21
November and 24 November 2006, appellant and appellee
filed similar manifestations that they are adopting the briefs
they filed before the Court of Appeals.23
Thus, appellant raises the following errors in this petition for
review:
I
THE COURT A QUO ERRED IN CONVICTING THE
ACCUSED-APPELLANT ON THE
BASIS
OF
HIS
IMPROVIDENT PLEA OF GUILTY AND HIS ALLEGED
SEPARATE CONFESSIONS TO ONE EM[I]LIO MAGALLANO,
AND ONE SOFRONIO ARAAS, THE LATTER BEING
HEARSAY
AND
WITHOUT
PROBATIVE
VALUE
WHATSOEVER.
II
THE COURT A QUO LIKEWISE ERRED IN CONVICTING
THE ACCUSED-APPELLANT OF RAPE WITH HOMICIDE
DESPITE THE FAILURE OF THE PROSECUTION TO
ESTABLISH THE LATTER'S GUILT BEYOND REASONABLE
DOUBT, AND THE ACCUSED-APPELLANT OWNING UP
ONLY TO THE CRIME OF SIMPLE RAPE.24
The ultimate issue is whether appellant's guilt was established
by evidence beyond reasonable doubt.
It must be conceded at the outset that the trial court failed in its
duty to conduct the prescribed "searching inquiry" into the
voluntariness of appellant's plea of guilty and full
comprehension thereof. Consequently, appellant's plea of
guilty was made improvidently and it is rendered
inefficacious.25 Nevertheless, the Court must rule against
appellant as the evidence on record is ample to sustain the
judgment of conviction independent from his plea of guilty.
The crime of rape with homicide is punishable with death under
Article 335 of the Revised Penal Code, as amended by
Republic Act (R.A.) No. 7659, which provides:
Article 335. When and how rape is committed. - Rape is
committed by having carnal knowledge of a woman under any
of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or
otherwise unconscious; and
3. When the woman is under twelve years of age or is
demented.
The crime of rape is punishable by reclusion perpetua.
xxxx
When by reason or on the occasion of the rape, a homicide is
committed, the penalty shall be death.
xxxx
The Information, to which appellant pleaded guilty, alleged that
homicide was committed by reason or on the occasion of the
rape of AAA. This, if proven, would warrant the penalty of death
at that time.26 Accordingly, a plea of guilty to such charges calls
into play the provisions of Section 3, Rule 116 of the 2000
Revised Rules of Criminal Procedure, thus Sec. 3. Plea of guilty to capital offense; reception of evidence. When the accused pleads guilty to a capital offense, the court
shall conduct a searching inquiry into the voluntariness and full
comprehension of the consequences of his plea and shall
require the prosecution to prove his guilt and the precise
degree of culpability. The accused may present evidence in his
behalf.
Based on this rule, when a plea of guilty to a capital offense is
entered, there are three (3) conditions that the trial court must
observe to obviate an improvident plea of guilty by the
accused: (1) it must conduct a searching inquiry into the
voluntariness and full comprehension by the accused of the
consequences of his plea; (2) it must require the prosecution to
present evidence to prove the guilt of the accused and the
precise degree of his culpability; and (3) it must ask the
accused whether he desires to present evidence on his behalf,
and allow him to do so if he so desires. 27
There is no hard and fast rule as to how a judge may conduct a
"searching inquiry," or as to the number and character of
questions he may ask the accused, or as to the earnestness
with which he may conduct it, since each case must be
measured according to its individual merit.28 However, the logic
behind the rule is that courts must proceed with caution where
the imposable penalty is death for the reason that the
execution of such a sentence is irrevocable and experience
has shown that innocent persons have at times pleaded
guilty.29 An improvident plea of guilty on the part of the accused
when capital crimes are involved should be avoided since he
might be admitting his guilt before the court and thus forfeit his
life and liberty without having fully comprehended the meaning
and import and consequences of his plea. 30 Moreover, the
requirement of taking further evidence would aid this Court on
appellate review in determining the propriety or impropriety of
the plea.31
In the instant case, when the accused entered a plea of guilty
at his re-arraignment, it is evident that the RTC did not strictly

observe the requirements under Section 3, Rule 116 above. A

mere warning
that the accused faces the supreme penalty of death is
insufficient.32 Such procedure falls short of the exacting
guidelines in the conduct of a "searching inquiry," as follows:

Considering the voluntary plea of guilty of the accused[,] we

pray that the mitigating circumstance to prove his plea of guilty
be appreciated in favor of the accused. We likewise pray that
another mitigating [circumstance] of voluntary surrender be
appreciated in his favor.
Pros. Edmilao:

(1) Ascertain from the accused himself (a) how he

was brought into the custody of the law; (b) whether
he had the assistance of a competent counsel during
the custodial and preliminary investigations; and (c)
under what conditions he was detained and
interrogated during the investigations. This is intended
to rule out the possibility that the accused has been
coerced or placed under a state of duress either by
actual threats of physical harm coming from
malevolent quarters or simply because of the judge's
intimidating robes.
(2) Ask the defense counsel a series of questions as
to whether he had conferred with, and completely
explained to, the accused the meaning and
consequences of a plea of guilty.
(3) Elicit information about the personality profile of
the accused, such as his age, socio-economic status,
and educational background, which may serve as a
trustworthy index of his capacity to give a free and
informed plea of guilty.
(4) Inform the accused of the exact length of
imprisonment or nature of the penalty under the law
and the certainty that he will serve such sentence. For
not infrequently, an accused pleads guilty in the hope
of a lenient treatment or upon bad advice or because
of promises of the authorities or parties of a lighter
penalty should he admit guilt or express remorse. It is
the duty of the judge to ensure that the accused does
not labor under these mistaken impressions because
a plea of guilty carries with it not only the admission of
authorship of the crime proper but also of the
aggravating circumstances attending it, that increase
punishment.
(5) Inquire if the accused knows the crime with which
he is charged and to fully explain to him the elements
of the crime which is the basis of his indictment.
Failure of the court to do so would constitute a
violation of his fundamental right to be informed of the
precise nature of the accusation against him and a
denial of his right to due process.
(6) All questions posed to the accused should be in a
language known and understood by the latter.
(7) The trial judge must satisfy himself that the
accused, in pleading guilty, is truly guilty. The accused
must be required to narrate the tragedy or reenact the
crime or furnish its missing details.33
An examination of the records of the proceedings will illustrate
the court's treatment of appellant's change of plea, viz:

Considering the gravity of the crime, may we ask your Honor

that we will present evidence inorder [sic] that it will give also
justice to the victim.
Court:
Present evidence to prove gravity of the crime.
Pros. Edmilao:
Our first witness is the ABC president.
Court:
What matter will Santiago Acapulco testify?
Court:
Was there cruelty done by the accused in picking [sic] the life
of the minor girl?
xxxx
Pros. Edmilao:
May we ask that we will present her [sic] in the next
hearing.1awphi1.net
Court:
The court will call the accused to the witness stand.
xxxx
(The witness after having administered an oath, took the
witness stand and declared that he is:
ROGELIO GUMIMBA
20 years old
Single
Occupation- duck raising
Resident of Capucao, Ozamiz City)
xxxx
Court:

Atty. Cagaanan:

The court will allow the prosecutor or the defense to profound

[sic] question [sic] on the matter and the accused understand
[sic] and fully comprehend [sic] the consequence of his plea of
guilty.

You stated that you pushed her and even tied her hand and
raped her and stabbed her, were you the one alone [sic]?

xxxx

Objection

Pros. Edmilao:

Court:

Q Mr. Rogelio Gumimba[,] are you the same accused in this

case in Crim. Case No. RTC 2074?

Sustained.

A Yes, sir.
Q Now the victim in this case is [AAA], a minor, 8 years of
age[.] Since you have admitted this in what particular place
wherein [sic] you raped and slew [AAA]?
A Purok Pantaon, Ozamiz City.

Atty. Anonat:

Court:
Q When you said you raped her, you mean you inserted your
penis inside the vagina of [AAA]?
A No, Your Honor.
Q When you said you raped her, what do you mean?

Q How far is that place wherein you slew and raped [AAA] from
her house?

A I was drank [sic] at that time.

A Very near, sir.

Q And you said you tied [AAA], what did you use in tying her?

Q Can you estimate how many meters?

A Banana skin.

A One meter, sir.

Q How did you tie [AAA]?

Q Was it committed inside or outside the house?

A I tied both her hands.

A Outside.

Q The hands of [AAA], you placed at the back?

Q In what particular place of the house[:] in front, at the side or

at the back?

A In front of her.
Q After tying her [,] what did you do to her?

A At the back of the house of the victim.

A After that I went home.
Q Will you please tell the court, how did you do it, will you
please narrate.

Q You did not stab [AAA]?

A I raped her by tying her hand, then I killed her.

A I stabbed her, Your Honor.

Q Before you raped and killed [AAA], where did you get her?

Q What weapon did you use in stabbing her?

A I saw her roaming around.

A A long bolo.

Q In committing the crime, were you alone?

Q You mean you were bringing [a] long bolo at that time?

Atty. Anonat:

A Yes, Your Honor.

Objection

Q After stabbing her, what did you do to her?

Court:

A No more, Your Honor.

Sustained.

Q How many times did you stab [AAA]?

Pros. Edmilao:

A I could not count how many stab wounds I inflicted to [sic]

her.

Q But you will agree that you have stabbed her many times?

Q If you are standing and [AAA] is also standing side by side

with you, up to what part of your body is the height of [AAA]?

A I could no longer count how many stab wounds, Your Honor.

A Up to my waist line.
Q When you were arraigned, you pleaded guilty, do you
understand the consequence of your pleading guilty?

Atty. Cagaanan:

A I do not know Your Honor [,] the consequence.

Q When you pleaded guilty [,] was it in your own free will?

Q You pleaded guilty to the offense of rape with homicide,

did you understand?

A Yes, sir.

A Yes, Your Honor, I understand.

Q That by your pleading guilty to the offense you will be
sentenced to die?
A Yes, I am aware.
Q Your act of pleading guilty to the offense charged is
your voluntary will?
A Yes, I admitted that crime, but we were two.
Q You mean to say there were two of you who raped [AAA]?
A Yes, your Honor.
Q Before raping her, was [AAA] wearing clothes?
A Yes, Your Honor.
Q Was [AAA] wearing [a] panty before you raped her?

Q Were you not forced or coerced by anybody with this

crime?
A No, sir.34
The inefficacious plea of guilty notwithstanding, the totality of
the evidence for the prosecution undeniably establishes
appellant's guilt beyond reasonable doubt of the crime of rape
with homicide. Apart from his testimony upon changing his plea
to a plea of guilty, appellant gave a subsequent testimony
when he was presented by the prosecution as a witness
against his co-accused. This second testimony which
constitutes another judicial confession, replete with details and
made consciously as it was, cured the deficiencies which made
his earlier plea of guilty improvident. The latter testimony left no
room for doubt as to the voluntariness and comprehension on
appellant's part of his change of plea, as well as completed his
narration of how he raped and killed the victim. The pertinent
portions of the second testimony follow, thus:
Pros. Jose A. Edmilao:
Q While you were gathering firewoods [sic] and Ronie Abapo
was pasturing carabao, do you recall of any untoward incident
that happened?

A Yes, Your Honor.

A We raped and killed.
Q Did you remove her panty before raping her?
Q Whom did you rape and kill?
A No, You Honor, I did not.
A [AAA].
Q How did you rape [AAA]?
A I have sexed [sic] with her.
Q What do you mean by I "remedio" her, you mean you have
inserted your penis into the vagina of [AAA]?

Q And when you said [AAA], who was then your companion,
because you said we?
A Ronie Abapo.
xxxx

A No, Your Honor, my penis did not penetrate into the vagina of
[AAA].
Q Why your penis did [sic] not able to penetrate into the vagina
of [AAA]?

Q While she [AAA] was there gathering oranges, you mean to

say you were close to the place [AAA] was?
A I, together with Ronie Abapo go [sic] near to the place [AAA]
was.

A The vagina of [AAA] is very small.

Q Can you tell this Court how tall was [AAA]?
A (The witness demonstrated that from the floor about 3 feet
high was the height of [AAA])

Q When you were already near at [sic] the place where [AAA]
was climbing, was she still up there at the orange tree?
A She already came down.

Q When she came down, what followed next then?

A I removed my t-shirt.

A We held her hands.

Q How about your pants?

Q Who held her hands?

A I also removed my pants.

A The two of us.

Q What was then the reaction of [AAA], when you first tied her
hand?

Q You mean one hand was held by you and the other hand
was held by Ronie Abapo?

A She did not cry, because we covered her mouth.

Atty. Anonat:

Q Who covered her mouth? You or Ronie?

Objection, leading.

A Ronie.

Pros. Edmilao:

Q What [sic] you said that it was Ronie Abapo, what did you do
then when he was on [sic] the act of raping her?

Q You said that you were holding the hands of [AAA], how did
you do it?

A I was just near to [sic] them.

A We held her hands and tied it [sic] with banana skin.

Q The after Ronie Abapo, what did you do then?

Q Who tied the hands of [AAA]?

A He told me that you will be the next [sic].

A Both of us.

Q So when he told you that you will be the next [sic], what did
you do next?

Q After tying the hands of [AAA][,] with banana stalk where did
you place her?
A We brought her to the [sic] grassy place.

A I also raped her.

Q Again, when you said you raped her, you inserted your penis
into the vagina of [AAA]?

Q What happened then after [AAA] was brought to the [sic]

grassy place?

A It did not enter [sic].

A We killed her.

Q Why?

Q Before you killed her, what did you do to her?

A It did not penetrate, because I was afraid.

A We raped her.

Q But your penis erected [sic]?

Q Who raped her first?

A No, Your Honor.

A It was Ronie Abapo, then followed by me.

Q You said that Ronie was the first to have sexual intercourse,
was he able to insert his penis into the vagina of [AAA]?

Q How did you rape her?

A We undress[sed] her.
Q What was she wearing at that time?
A She wore a dress.
Q What about Ronie Abapo?
A He did not undress.
Q How did you let your penis out?

A No, sir, because he was watching, if there was person [sic]

around.
Q Were you able to see the penis of Ronie inserted into the
vagina of [AAA]?
A I have [sic] not seen.
xxxx
Q You said that you and Ronie Abapo raped [AAA], what do
you mean or what do you understand by the word rape?
A We undressed her.

Q Why did you undress her?

A Rowing[,] we will kill her.

A We undressed her, because we want [sic] to do something to

her.

Q And what was your reply?

A I refused.

Q What is that something that you want [sic] top do to [AAA]?

Q When you refused, what did he do then?
A We raped her.
A He keep [sic] on persuading me.
Q When you said we raped her, you mean, you inserted your
penis inside the vagina of [AAA]?

Q And what did eventually came [sic] to your mind?

A No, sir.

A Evil came to my mind, so we killed her.

Q But you tried to insert your penis inside the vagina?

Q How did you kill her?

A Yes, sir.

A We stabbed her.

Q And your penis touched the vagina of [AAA]?

Q What weapon you used [sic] when you killed her?

A Yes, sir.

A A long bolo.

Q Only your penis was not able to enter the vagina because
[AAA] is [sic] still a small girl?

Q Whose [sic] the owner of that long bolo?

A Yes, sir.
Q After trying to insert your penis after Ronie Abapo, what did
you do to [AAA]?
A I walked away, but he called me.
Q Who called you?
A Ronie Abapo.

A Mine, but Ronie Abapo used it.

Q Who was the first one to use it?
A Ronie Abapo.
Q But the bolo was in your hands, how did [sic] he be able to
use it?
A I put it on the ground and he got it.

Q Why did he call you?

Q You said that he made the first struck [sic]. Where was [AAA]
first hit?

A He asked me, what to do with [AAA]. It might be that she will

tell us to somebody [sic], we will kill her.

A In the stomach.

Q What did you do?

Q How many times did Ronie Abapo strike her with the use of
that bolo?

A I did not answer.

A I cannot remember anymore.

Q And what was your answer?

Q Aside from the stomach, where were the other pants [sic] of
[AAA] also hit?

A Because he keep [sic] on persuading me.

A At the left side.
Q How did he persuade you?
A He persuaded me because we might be caught.

Q How about you, did you made [sic] the following stab to
[AAA]?

Q And what did he tell you to do?

A I was hesitant to stab, but eventually I stabbed her.

A That we will kill [AAA].

Q How many times?

Q How did he tell you that?

A Only one.

Q What part of her body was she hit?

A The wife of Panyong.

A At the stomach.

Q In the reporting [sic] this matter[,] were you together with

Ronie Abapo telling these persons that you raped [AAA]?

Q Do you mean to say that you also got the bolo from the
hands of Ronie Abapo and also stabbed [AAA]?
A Yes, sir.

A I was alone.
Q And did you tell her that you were two in killing and raping
with Ronie Abapo?

Q Why was [AAA] not killed, when Ronie Abapo made stabbed
[sic] on her?

A No, sir.

A He [sic] was already dead.

Q Why not?

Q Why did you stab her, when she was already dead?

A According to Emilio that the mother of the victim might be

[sic] pity enough to me, because I am related to them.

A I just stabbed her, because I thought that she was still alive.
xxxx
Q Do you know where is [sic] the bolo used in stabbing [AAA]?
A No, sir.
Q After killing [AAA], where did you place the bolo?
A In our place.
Q It [sic] it there in your home?
A Already taken.
Q Who got?
A The barangay captain.
Q Now, did you tell to [sic] anybody regarding the raping and
killing of [AAA] aside from here in Court?
A I have already told.
Q Who was the person whom you talked about [sic]?
A My neighbor.
Q Whose [sic] the name of that neighbor?
A Emilio Magallano.
Q After Emilio Magallano[,] to whom did you report?
A Sofronio Aranas.
Q Who else?
A Rico Magallano.
Q Who else?

Q When you reported to these persons you have mentioned,

did you also tell them that you were together with Ronie Abapo
in killing and raping?
A No, sir.35
While the trial court found appellant's second testimony insofar
as it implicated his co-accused to be unworthy of credence,
there is absolutely nothing on record which militates against its
use as basis for establishing appellant's guilt. In fact, in his
Brief, appellant submits that he must be convicted of simple
rape alone and not rape with homicide. Thus, he admits in
writing, albeit implicitly, that he raped the victim.
Convictions based on an improvident plea of guilt are set aside
only if such plea is the sole basis of the judgment. If the trial
court relied on sufficient and credible evidence to convict the
accused, the conviction must be sustained, because then it is
predicated not merely on the guilty plea of the accused but on
evidence proving his commission of the offense charged.36
Thus, as we have ruled in People v. Derilo:37
While it may be argued that appellant entered an improvident
plea of guilty when re-arraigned, we find no need, however, to
remand the case to the lower court for further reception of
evidence. As a rule, this Court has set aside convictions based
on pleas of guilty in capital offenses because of improvidence
thereof and when such plea is the sole basis of the
condemnatory judgment. However, where the trial court
receives evidence to determine precisely whether or not the
accused has erred in admitting his guilt, the manner in which
the plea of guilty is made (improvidently or not) loses legal
significance, for the simple reason that the conviction is based
on evidence proving the commission by the accused of the
offense charged.
Thus, even without considering the plea of guilty of appellant,
he may still be convicted if there is adequate evidence on
record on which to predicate his conviction. x x x x
Here, the prosecution was able to establish, through the
separate testimonies of appellant, that at around 1:00 o'clock in
the afternoon of 8 April 1997, appellant was gathering firewood
not far from the house of the victim AAA in Barangay Pantaon,
Ozamiz City. He met co-accused Ronie Abapo who was then
pasturing his carabao also within the vicinity of the victim's

home. They spotted the victim picking oranges with her three
(3)-year old brother at the back of their house and together
approached her from behind, tied her hands with banana skin
and dragged her to a grassy place.38 Abapo raped the victim
first.39 Thereafter, appellant followed suit.40 Once they had
finished with their dastardly acts, they stabbed and killed the
victim with a long bolo which belonged to appellant.41
Through the testimony of the physician who conducted the
autopsy on AAA's body, it was established that the victim had 6
and 12 o'clock lacerations on her external genital organ. Thus,
it is clear that the rape was consummated.
Appellant challenges the testimonies of the witnesses
Magallano and Araas on what appellant had confessed to or
told them for being hearsay. The challenge fails. The
testimonies, it should be conceded, cannot serve as a proof of
extrajudicial confession for an extrajudicial confession has to
be in writing, among others, to be admissible in evidence. 42
That is why the testimonies are of use in the case as
corroborative evidence only. Such utility, however, cannot be
defeated by the hearsay rule. The testimonies covered are
independently relevant statements which are not barred by the
hearsay rule.1awphi1.net
Under the doctrine of independently relevant statements, only
the fact that such statements were made is relevant, and the
truth or falsity thereof is immaterial. The hearsay rule does not
apply. The statements are admissible as evidence. Evidence
as to the making of such statement is not secondary but
primary, for the statement itself may constitute a fact in issue or
be circumstantially relevant as to the existence of such a fact.43
Moreover, where, as in the case at bar, there is no evidence to
show any dubious reason or improper motive for a prosecution
witness to bear false testimony against the accused or falsely
implicate him in a crime, his or her testimony should be given
full faith and credit.44
Next, we address appellant's contention that he can only be
convicted of simple rape, as this is the only crime to which he
has owned up. Arguing that the victim may have already been
dead after his co-accused had allegedly hacked her first,
appellant theorizes that he, at most, would be guilty of an
impossible crime.
Appellant is clutching at straws. It is extremely doubtful that
appellant could have known positively that the victim was
already dead when he struck her. The proposition not only
completely contradicts his judicial confession, it is also
speculative as to cause of death. In light of the particular
circumstances of the event, appellant's mere conjecture that
AAA had already expired by the time he hacked her cannot be
sufficient to support his assertion of an impossible crime. An
examination of the testimony is again called for, thus:
Pros. Edmilao:
Q You said that he (Abapo) made the first strike, where was
[AAA] first hit?
A In the stomach.

Q How many times did Ronie Abapo strike her with the use of
that bolo?
A I cannot remember anymore.
Q Aside from the stomach, where were the other pants [sic] of
[AAA] also hit?
A At the left side.
Q How about you, did you made [sic] the following stab to
[AAA]?
A I was hesitant to stab, but eventually I stabbed her.
Q How many times?
A Only one.
Q What part of her body was she hit?
A At the stomach.
Q Do you mean to say that you also got the bolo from the
hands of Ronie Abapo and also stabbed AAA?
A Yes, sir.
Q Why was [AAA] not killed, when Ronie Abapo made stabbed
[sic] on her?
A He [sic] was already dead.
Q Why did you stab her, when she was already dead?
A I just stabbed her, because I thought that she was still
alive.45
Thus, the finding of guilt as pronounced by the RTC and the
Court of Appeals should be sustained. However, with the
passage of R.A. No. 9346, entitled "An Act Prohibiting the
Imposition of Death Penalty in the Philippines," the penalty of
death can no longer be imposed. Accordingly, the penalty
imposed upon appellant is reduced from death to reclusion
perpetua without eligibility for parole.46
With respect to the civil liability of appellant, we modify the
award in light of prevailing jurisprudence. Accordingly,
appellant is ordered to indemnify the heirs of AAA in the
amount of P100,000.00 as civil indemnity, P75,000.00 as moral
damages, P25,000.00 as temperate damages and
P100,000.00 as exemplary damages.47
WHEREFORE, the Decision of the Court of Appeals in CA G.R.
CR-HC No. 00193 is AFFIRMED WITH MODIFICATION.
Appellant is sentenced to suffer the penalty of reclusion
perpetua without eligibility for parole and to pay the heirs of the
victim, AAA, in the amounts of P100,000.00 as civil indemnity,
P75,000.00 as moral damages, P25,000.00 as temperate
damages, and P100,000.00 as exemplary damages, plus
costs.

SO ORDERED.

afternoon, the family stepped out of the shopping mall and

Reynaldo proceeded to the parking lot to get his red Honda
Accord, while the rest of his family stayed behind and waited.
Immediately thereafter, the family heard an explosion coming
from the direction where Reynaldo parked his car. Appellant
and Renevie got curious and proceeded to the parking lot.
There, they saw the Honda Accord burning, with Reynaldo
lying beside the driver's seat, burning, charred and bleeding
profusely. A taxi driver named Elmer Paug (Elmer) appeared
and pulled Reynaldo out of the car. Reynaldo was then rushed
to the Cardinal Santos Medical Hospital where he eventually
died because of the severe injuries he sustained.3 The
underlying cause of his death was Multiple Fracture & Multiple
Vascular Injuries Secondary to Blast Injury.4
An investigation was conducted by the police after which two
separate Informations for Murder and Parricide, dated
September 10, 1997, were filed against appellant, Rolando and
one Oswaldo Banaag (Oswaldo).
The Information in Criminal Case No. 113065-H accused
Rolando and Oswaldo of the crime of Murder, to wit:

PEOPLE OF THE PHILIPPINES, Plaintiff/Appellee,

vs.
ROLANDO
"Botong"
MALIBIRAN
Accused,
and BEVERLY TIBO-TAN, Accused/Appellant.
DECISION
AUSTRIA-MARTINEZ J.:
For review is the November 13, 2006 Decision 1 of the Court of
Appeals (CA) in CA-G.R. CR No. 02167 which affirmed the
Joint Decision2 dated September 23, 2003 of the Regional Trial
Court (RTC), Special Court for Heinous Crimes, Branch 156, of
Pasig City, Metro Manila, finding Rolando "Botong" Malibiran
(Rolando) and Beverly Tibo-Tan (appellant) guilty of Murder
and Parricide, respectively, and sentencing them to suffer the
penalty of reclusion perpetua.

On February 5, 1995, in San Juan, Metro Manila and within the

jurisdiction of this Honorable Court, the accused, conspiring
and confederating with Beverly Tibo-Tan, and three other
individuals whose identities are still unknown, did then and
there willfully, unlawfully, and feloniously, with intent to kill,
treachery, evidence (sic) premeditation and with the use of
explosion, plan, plant the explosive, and kill the person of
Reynaldo C. Tan, by placing said grenades on the drivers side
of his car, and when said victim opened his car, an explosion
happened, thereby inflicting upon the latter mortal wound which
was the direct and immediate cause of his death.
The accused Oswaldo, without having participated in said
crime of murder as principal, did and there willfully, unlawfully
and feloniously take part, as an accomplice, in its commission,
by cooperating in the execution of the offense by previous and
simultaneous acts.
Contrary to law.5

The conviction arose from the death of Reynaldo Tan

(Reynaldo) on February 5, 1995. The antecedents that led to
Reynaldo's death, however, go way back in the 70's when
Reynaldo left his common-law wife, Rosalinda Fuerzas
(Rosalinda), and their two (2) children, Jessie and Reynalin, in
Davao, and went to Manila to seek greener pastures. While in
Manila, Reynaldo met and had a relationship with appellant.
They eventually married in 1981. Reynaldo and appellant
begot three (3) children Renevie, Jag-Carlo and Jay R.
In 1984, Reynaldo's and Rosalinda's paths crossed again and
they resumed their relationship. This led to the "souring" of
Reynaldo's relationship with appellant; and in 1991, Reynaldo
moved out of the conjugal house and started living again with
Rosalinda, although Reynaldo maintained support of and
paternal ties with his children.
On that fateful day of February 5, 1995, Reynaldo and
appellant were in Greenhills with their children for their usual
Sunday gallivant. After finishing lunch at the Kimpura
restaurant, the family separated at around 2:00 o'clock in the
afternoon to do some shopping. Later, they regrouped and
purchased groceries at Unimart. At around 4:00 o'clock in the

The Information in Criminal Case No. 113066-H accused

appellant of the crime of Parricide, to wit:
On February 5, 1995, in San Juan Metro Manila and within the
jurisdiction of this Honorable Court, the accused, while still
married to Reynaldo C. Tan, and such marriage not having
been annulled and dissolved by competent authority,
conspiring and confederating with Rolando V. Malibiran, and
three other individuals whose identities are still unknown, did
then and there willfully, unlawfully and feloniously with intent to
kill, treachery, evidence (sic) premeditation and with the use of
explosion, plan, plant the explosive, and kill the person
Reynado C. Tan, by placing said grenades on the drivers side
of his car, and when said victim opened his car, an explosion
happened, thereby inflicting upon the latter mortal wound which
was the direct and immediate cause of his death.
Contrary to law.6
Rolando and appellant pleaded not guilty on arraignment.7
Their co-accused, Oswaldo, was later discharged and utilized
as one of the prosecution witnesses.

10

The prosecution presented Jessie Tan, Inspector Silverio

Dollesin, Elmer Paug, Police Inspector Wilson Lachica,
Supervising Investigating Agent Reynaldo Olasco, Rosalinda
Fuerzas, Janet Pascual (Janet), and Oswaldo, as its
witnesses.
For its part, the defense presented the following witnesses,
namely: Renevie Tan, Romulo Bruzo (Romulo), Tessie Luba,
Emily Cuevas, Jose Ong Santos, Victorino Feliz, Virgilio
Dacalanio and accused Rolando. Appellant did not testify in her
behalf.
The RTC summed up the testimonies, as follows:
THE EVIDENCE FOR THE PROSECUTION
1. Jessie Tan, a son of Reynaldo with Rosalinda
Fuerzas, testified that he moved to Manila from Davao
in 1985 to study at the instance of his father Reynaldo
and to enable then to bring back time that had been
lost since his father left his mother Rosalinda and the
latters children in Davao (TSN, Jan. 27, p.14); In
1991 Reynaldo moved to their house because his
relationship with Beverly was worsening, and to
exacerbate matters, Beverly had then a lover named
Rudy Pascua or Pascual, a contractor for the
resthouse of Reynaldo. Reynaldo and Beverly were
then constantly quarreling over money (TSN,
February 10, 1999, pp. 28-29); Jessie had heard the
name of Rolando Malibiran sometime in 1994
because one day, Reynaldo came home before dinner
feeling mad since he found Rolando Malibiran inside
the bedroom of Beverly at their White Plains
residence; Reynaldo had his gun with him at the time
but Malibiran ran away (TSN, January 27, 1999, pp.
19-21). He eventually came to learn about more
details on Rolando Malibiran from Oswaldo Banaag,
the family driver of Beverly who was in the house at
White Plains at the time of the incident (Ibid, p. 22).
One night in December of the same year (1994)
Jessie overheard Reynaldo talking to Beverly over the
phone, with the latter fuming mad. After the phone
conversation he asked his father what happened
because the latter was already having an attack of
hypertension and his father told him that Beverly
threatened him and that "he, (Reynaldo) will not
benetit from his money if he will continue his move for
separation" (p. 40 ibid). This threat was taped by
Reynaldo in his conversation with Beverly (Exh. "B")
Jessie himself has received threat of his life over the
phone in 1989 (p. 30 ibid).
At the lounge at Cardinal Santos Hospital, on the day
of the mishap, Jessie testified on the emotional state
of his mother Rosalinda while in said Hospital; that
she was continuously crying while she was talking to
Jessies uncle. When asked where Beverly was and
her emotional state, he said that Beverly was also at
the lounge of the said hospital, sometimes she is
seated and then she would stand up and then sit
again and then stand up again. He did not see her cry
"hindi ko po syang nakitang umiyak" (pp. 52-23 ibid).
When asked if his father had enemies when he was
alive, he said he knows of no one (p.54 ibid). Jessie
was informed by his mother (Rosalinda) few months
after the death of Reynaldo that there was a letter by

Rosalinda addressed to his uncle which stated that "if

something happened to him, Beverly has a hand in it"
(p. 56 ibid, Exh. "D" Letter dated March 24, 1999)
On cross examination, he admitted having gone to
Mandaluyong City Jail and talked with Oswaldo
Banaag about latters claim that both accused have
planned to kill his father. When asked if he knows the
consequences if Beverly is convicted, on the matter of
Conjugal Partition of Property, Jessie knows that
Beverlys share would be forfeited. Counsel confirmed
Jessies request of whatever property of his father
remaining shall shared equally by the legitimate and
illegitimate children. Thus, Jessie confirmed as the
agreement between them (p. 28, March 24, 1999
TSN).
2. Mr. Salonga, a locksmith in Greenhills Supermarket
whose work area is at the entrance door of the
grocery of Unimart testified that he can duplicate any
key of any car in five (5) minutes. And that he is
accessible to any one passing to Greenhills Shopping
Complex (p. 45, March 24, 1999 TSN). The Honda
Car representative on the other hand testified that the
Honda Accord of the deceased has no alarm, that the
Honda Accord key can be duplicated without difficulty.
And the keyless entry device of the said vehicle can
be duplicated (pp. 46-47 ibid, Stipulation. Order p. 335
record Vol. 1).
3. Insperctor Selverio Dollesin, the Chief of the Bomb
Disposal Unit of the Eastern Police District, and the
Police Officer who conducted the post aftermath
report of the incident whose skills as an expert was
uncontroverted, testified that the perpetrator knew
who the intended vicitim was and has reliable
information as to his position when opening the
vehicle. If the intended victim does not usually drive
and usually sits on the rear portion of the vehicle (p.
49, April 14, 1999 TSN) Inspector Dollesins
conclusion states that the device (bomb) was placed
in front of the vehicle in between the drivers seat and
the front door because the perpetrator had information
about the victims movements, otherwise he could
have placed the device underneath the vehicle, in the
rear portion of the vehicle or in any part thereof (p. 53
ibid). He testified that persons who have minimal
knowledge can set up the explosive in the car in five
(5) minutes (p. 65 ibid). The explosion will commence
at about 4-7 seconds (p. 66 ibid).
4. Elmer Paug, the taxi driver, testified that on
February 5, 1995 he was just dropping a passenger to
Greenhills Shopping Complex when he heard a loud
explosion at the parking level. Being curious of the
incident he hurriedly went out to look for a parking,
then proceeded to the area where the explosion
occurred. He saw a man wearing a shirt and short
who is about to give assistance to a man who was a
down on the ground bloodied. Finding that the man
could not do it on his own, Elmer rushed through to
give aid. He held both arms of the victim, grabbed him
in the wrists and dragged him out and brought him
farther to the burning car. (pp. 7 July 7, 1999 TSN).
The man lying on the pavement has burnt fingers and
hair, chest bloodied and skin already sticking to

11

Elmers clothes (p. 8 Ibid). He noticed two women at

about two armlength from the car where he was. The
younger woman shouted "Daddy, Daddy, kaya mo
iyan". She was crying had wailing (p. 10 ibid). He said
that the older woman gestured her left hand
exclaimed in a not so loud voice "wala bang tutulong
sa amin?" while her right hand clutched her shoulder
bag (p. 11 ibid). When asked if the older woman
appears to be alarmed, Elmer testified that he cannot
say, and said she looked normal; he did not notice her
crying. Neither of the two female rendered assistance
to drag the victim, they just followed him when he
pulled him out. The older woman never touched the
victim. (p. 12 ibid). Considering that his Taxi is quite
far where the victim was lying, he flagged a taxi, and
the victim was brought to Cardinal Santos Hospital
(pp. 15-16 ibid).
On cross examination, he was asked what the
meaning of normal is, and he said "natural Parang
walang nangyari" It looks like nothing happened (p. 42
ibid). Her was uncertain as to whether the two
females joined the deceased in the taxi cab (p. 43) as
he left.
5. Police Inspector Wilson Lachica testified that he
was the police officer who investigated the case. In
the Cardinal Santos Hospital he was able to interview
Beverly Tan. He asked her name, address, name of
the victim, how the incident happened and who their
companions were. She answered those questions in a
calm manner (p. 13, Sept. 21, 1999 TSN). As per his
observation which was told to his superiors, he has
not seen remorse on the part of the victim, (meaning
the wife) for an investigator that is unusual. Based on
his more than six years of experience as an
investigator, whenever a violent crime happened,
usually those relatives and love ones appears
hysterical, upset and restless. Her reaction at the time
according to him is not normal, considering that the
victim is her husband. He interviewed persons close
to the victim even at the wake at Paz Funeral in
Quezon City. He was able to interview the daughter of
the lady-accused; the other lady and family or
relatives of the victim, the same with the driver of the
lady accused. He came to know the identity of the
policeman linked with the lady accused, named
Rolando Malibiran. He testified that he obtained the
information that he desired from the widow
nonchalantly and marked with blithe unconcern, which
in his observation is unusual since she is supposed to
be the one who would diligently push through in the
investigation. When asked the level of interest as
regards accused Malibiran, witness testified that
because of the manner of the commission of the
crime through the use of explosives, only a trained
person can do that job (pp. 15-16 ibid).
6. Supervising Investigating Agent Reynaldo Olasco
testified that his only observation on the demeanor of
Beverly Tan is that she did not give her statement
readily without the assistance of her counsel which for
the investigator is quite irregular. Considering that she
is the legal wife, he could not see the reason why
Beverly would bring a counsel when she is supposed
to be the complainant in the case (p. 11, April 5, 2000
TSN). He testified that after having interviewed a

representative from Honda, they had set aside the

possibility that it was a third party who used pick lock
in order to have access to the Honda Accord and the
presumption is that the duplicate key or the main key
was used in opening the car. The assessment was
connected with the statement of Renevie that she
heard the clicking of all the locks of the Honda Accord,
which she was sure of when they left the car in the
parking lot (p. 12 ibid) In 1998 they arrested Rolando
Malibiran in Candelaria Quezon, he was fixing his
owner type jeep at that time. The arresting officers
waited for Beverly Tan, and after thirty minutes they
were able to arrest Beverly Tan on the same place (p
8, May 31, 2000 TSN). They searched the premises
of the place where they reside and found a white
paper which he presumed to be "kulam" because
theres some oracle words inscribe in that white piece
of paper and at the bottom is written the same of
Jessie (pp. 8-9 ibid). On cross examination, he
admitted that 70% of the information on the case was
given by Oswaldo Banaag through the persistence of
the NBI which convinced him to help solve the case. It
was disclosed to the investigating officer after he was
released, thats the only time he gave in to the request
(p. 14, may 31, 2000 TSN). As to how the NBI
operatives effected the arrest, it was through an
information from the Lucena Sub-Office (p. 17, Ibid).
7. Rosalinda Fuerzas testified that her life in Makati
was "medyo magulo lnag kase nanggugulo sya sa
amin." When asked who this "siya" was, she said
Beverly. That one day Beverly called on her and
harassed her, and one day she received a murder
letter threatening that she (Rosalinda) would be
around the newspaper saying that she would be
killed, like what they did in the news papers, puputuputulin iyong mga dodo o anuman dahil mang-aagaw
daw ako (Rosalinda) ng asawa (p. 11 ibid, June 27,
2000 TSN). She stated that her husband wanted to
separate with Beverly because he found out that the
latter has paramour named Rudy Pascua contractor
of Jollibee (pp. 13-14 ibid). She had never seen
Beverly appeared to be lonely when her husband was
then kidnapped. A telephone conversation with
Beverly was recorded by Reynaldo which was a
quarrel regarding money. In the Cardinal Santos
Hospital, she did not see Beverlys appearance to be
lonely but appeared to be a criminal, and Beverly did
not cry (pp. 13-17 ibid). She mentioned the letter of
Reynaldo that if something happened to him, Beverly
is the one who killed him (p. 26 Ibid; pp. 24-25, Exh.
"D, Vol. 1-A Record).
8. Janet Pascual testified that she was able to know
Rolando Malibiran, because on March 1993 when she
was in White Plains, Beverly showed her a picture of
him (Malibiran) and said to her that he is her boy
friend. Witness told her that he was handsome. She
was close to Beverly that she frequently stayed in
White Plains when Beverly and Reynaldo is no longer
living in the same roof. They played mahjong, chat
and has heard Beverlys hurtful emotions by reason of
her philandering husband Reynaldo. Beverly told her
of how she felt bad against underwear not intented for
her (p. 9, Oct. 11, 2000 TSN); that on August 1994,
Malibiran told Beverly that he has a "kumapre" who
knows how to make "kulam" for an amount of

12

P10,000.00. That Reynaldo would just sleep and

never wake up. Witness testified that they went to
Quiapo to buy the needed ingredients but nothing
happened (p. 14 Ibid). The accused wanted to kill
Reynaldo in a way that they would not be suspected
of having planned it, and for him just to die of
"bangungot". She testified that they wanted to
separate their properties but it did not push through,
referring to Beverly and Reynaldo. That Beverly heard
of the house being built in Corinthian intended for
Rosalinda and family. In July 1994 Malibiran told
witness testified that she heard this on their way to
Batangas, it was Beverlys birthday (p. 16 ibid). On
October 1994 she asked by Malibiran to convince
Beverly to marry him, this was asked at the time when
Beverly was in Germany (p. 17 ibid).
When asked whether Beverly and Rolando ever got
married the witness testified that the two got married
on November 8, 1994. (p. 155 Vol. 1-A records Exh.
"JJ" Certificate of Marriage). That she executed an
affidavit of corroborating witnesses for Beverly and
Malibiran to facilitate the processing of their
exemption in obtaining marriage license requirement
(p. 128 Ibid; Exh. "BB"). She is an employee of the
Municipality of San Juan. After getting married they
discussed how Malibiran would get inside the car of
Reynaldo. On December of 1994, Beverly was able to
duplicate Reynaldos key at the time when they have
shopped for many things, Reynaldo asked her to bring
the goods to the car in the compartment as the kids
would still shop (p. 17 ibid). After having done so, she
proceeded to a key duplicator in Virra Mall and had
the key duplicated. Thereafter on the succeeding days
or weeks, she was able to give the duplicate to
Malibiran. That they would use the grenade since
Malibiran has one in his house but his only problem is
how to get inside the car and place the grenade (p.
18, Oct. 11, 2000 TSN; Vide p. 35 ibid)
As to when the killing would take place, the witness
heard that they will do it during the baptism of the
child of Gloria, Rolando Malibirans sister. They chose
that date so that they would not be suspected of
anything and that pictures would be taken in the
baptism to reflect that Malibiran took part in the same
(pp. 17-18 ibid). During Reynaldos internment when
asked whether Beverly looked sad, witness said that
she did not see her sad (p. 20 ibid). On February 8,
1995, during the wake, witness met Malibiran in a
canteen in White Plains and they rode a Canter
owned by Beverly, on the road while the vehicle was
cruising along Katipunan avenue near Labor Hospital,
Malibiran told her among others that on the day he
placed a grenade on Reynaldos car he saw a security
guard roving and so what he did was to hurriedly tie
the wire in the grenade (p. 21 ibid) not connected with
the wire unlike the one intended for Reynaldo which
has a connection (p. 21 ibid). As far as she knows,
there were four or five grenades placed. She told this
secret to another friend so that in case something
happened to her, it was the doing of Malibiran and
Beverly.
On Cross examination, she was asked whether
Malibiran did it alone, she said that he has a look out
as what Malibiran told him (p. 26 ibid). When

confronted why she was testifying only now, she said

she was bothered by her conscience. As to how did
she get the information of key duplication, she said
that it was told to her by Beverly (p. 35 ibid). It was
also disclosed that she did ask Atty. Morales for a sum
of P5,000.00 for he to buy medicine.
9. Oswaldo Banaag (or Banaag) testified that Beverly
told him that she and Malibiran had a relationship (p.
39, April 1994 TSN). He testified that on April 10, 1994
Beverly asked him to look for a hired gunman, if he
could not find one, he just look for a poison that would
kill Reynaldo, ten thousand (P10,000.00) pesos was
given him for this (p. 14 Ibid). In his sworn statement
he said that Beverly asked him to seek means for
Reynaldo to die. That she will pay any amount just for
him to get out of her life. He has driven for her in
going to Hilltop Police Station, Taytay Rizal to see
Rolando Malibiran. That Malibiran blames Beverly of
the reason why Reynaldo is still alive and then
volunteered himself to remedy the situation, that he
would seek a man that would kill Reynaldo he made
an example of a man they killed and threw in Antipolo
"Bangin" with Beverly, Malibiran and two other
persons who appear to be policeman because they
have something budging in their waste [sic] which is
assumed to be a gun, they went to Paombong
Bulacan via Malabon. He heard that they would fetch
a man in Bulacan that knows how to place a bomb in
a vehicle. Near the sea they talked to a person
thereat. From Paombong they rode a banca and went
to an islet where the planning was discussed as to
how much is the fee and how the killing will be had.
They ordered him to return back to the vehicle and
just fetched them in Binangonan.
He swore that on February 5, 1995 around 10:30 a.m.
Beverly asked one of her siblings to call Reynaldo for
them to be picked up because every Sunday, the
family would go out for recreation. Around 12:00 pm
he was asked by Beverly to follow where they will go
and when they are already parked, he was instructed
to fetch Malibiran in Caltex, Katipunan near Shakeys
and bring them to the place where Reynaldo was
parked. In the Caltex station he saw Malibiran with
two persons who looked like policemen and another
person he previously saw in Bulacan. He drove the
L300 Van, and brought them to the parking lot where
Reynaldos Honda Car was parked and Malibiran told
him just drove [sic] in the area and come back. At
around 3:00 p.m. after half an hour he saw Malibiran
and company and I picked them up. He heard from
the person in Bulacan "Ayos na, siguradong malinis
ito." Then he was asked to drive them to Hilltop Police
Station. He discovered the death of Reynaldo when
he saw and read newspaper, he called Beverly to
confirm this incident and he was asked to be hired
again and drove for her. When he was in White Plains
already, he was asked by Beverly and Malibiran not to
squeal what he knows of, otherwise, his life will just
be endangered. That Beverly and Malibiran were
lovers since March 1993, when they met each other in
a piggery in Marikina. There was an incident that
Reynaldo saw Malibiran in their own bedroom, and
there was almost a gunshot incident, he was there
because he was asked to drive the vehicle. Beverly
Tans source of money was from Reynaldo Tan, that

13

he (Banaag) was asked frequently by Beverly who in

turn would give it to Malibiran (Exh. "y", pp. 122-125
Vol. 1-A, Sworn Statement November 29, 1996).
On March 29, 1996 he was no longer driving for
Beverly because he was arrested by the Presidential
Anti-Crime Commission for his alleged involvement in
the kidnapping of the father of the classmate of
Renevie Tan. He was later on acquitted (p. 16, Feb.
20, 2001 TSN) and released from incarceration on
May 7, 1997. When asked whether Jessie Tan helped
him to be acquitted in the kidnapping case, he said no
(p. 16 ibid).
On Cross examination, he was asked how many
times did Jessie Tan visit him in prison, he said that it
was Atty. Olanzo who visited him for about six times
and that he saw Jessie when he was already out of
jail (pp. 24-25 ibid). He testified that there was one
incident when Reynaldo and Mabiliran almost had a
shootout in the bedroom downstairs because
Malibiran was inside the bedroom where Beverly was,
Reynaldo have a gun at that time bulging in his waste
[sic] (p. 40 ibid).
Further on Cross, he testified that sometime in June
1994, he with Beverly went to Hilltop Police Station
and fetched Malibiran and company to go to
Paombong Bulacan, they passed by Malabon before
going to Bulacan. When they reached the bridge near
the sea, they rode a banca, about six of them plus the
one rowing the boar towards an Island. In the Island,
there was one person waiting (p. 44-45 ibid). he
stayed there for just for about ten (10) minutes, and
during that period, at about one arms length he
overheard their conversation concerning a man to
bring the bomb in the car. When asked who was in the
banca then, he said it was Beverly, Botong
(Malibiran), Janet and the man they picked up at
Hilltop. He was told to return the L300 and just wait for
them in Binangonan, hence he rode a banca to return
to the bridge and then drove the L300 Van towards
Binangonan (p. 50 ibid). When asked if he knows that
Malibiran is engaged in the fishing business of
bangus, he had no idea (p. 45 ibid).
DEFENSE EVIDENCE
For the defense, in opposition to the testimony of Elmer Paug,
it called to the witness stand Renevie Tan. She testified that
she believe that her mother (Beverly) did not kill her dad
because she was with them at the time of the incident (p. 6
Feb. 5, 2002 TSN). That it is not true that they did nothing
when his dad was lying on the ground at the time of the
incident. That her mom screamed at that time and did tried to
pull her dad who was under the car that she kept going around
to find a safer place to pull him out because the car was
burning and so they could not pick her dad without burning.
Her mother tried crawling underneath the car so she can reach
him but he pulled her mom aside and pulled dad risking himself
from burning (p. 11 ibid) She found out that the person who
helped them was the taxi driver, Elmer Paug.
That a driver of a Ford Fiera or Toyota Tamaraw of some kind
of delivery van boarded her dad with her mom and headed for
Cardinal Santos Hospital. She said that if is not true that her

mom appeared unaffected or acting normal as if nothing

happened. That it is likewise not true when Elmer Paug said
that he alone carried her dads body, and said that there was
another man who helped put her dad on the car (p. 14 ibid).
She swore that her mom was shocked and was crying at that
time (pp. 112-115, Exh. "U" Sworn Statement of Renevie Tan).
She admitted that it was only the taxi driver who pulled out his
dad from the danger area to a safer place at about four (4)
meters, while Elmer Paug was dragging her dad, they where
there following him (p. 43 February 5, 2002, TSN). That she
touched her father when they where (p. 45 ibid). It was
confirmed in her testimony that it was the taxi drivers who
looked for a taxi cab ( p. 46 ibid). She asked if she observed
whether her mom carried a portion of her dads body or arms,
hands, legs or buttocks of her father, she said she could not
remember (p. 7-8, February 12, 2002 TSN). When asked
whether her mom has a shoulder bag at that time, she could
not remember.
She testified that her parents keep quarreling to each other
may be in 1988-89 and stopped in 1991. it was a once a month
quarrel (pp. 23-24 ibid). A certain Janet Pascual frequently
stayed in their house in the months of October 1994 until
February of 1995, and her moms relationship with Janet was
cordial (pp. 27-28, ibid). As regards to Malibiran, she knows
him at the month of August or September of 1994 but no
knowledge of a marriage that took place between her mom and
Malibiran on November of the same year (p. 30 ibid).
Romulo Bruzo, the security guard of Tan Family at White Plains
testified that there was an offer of half a million to him by an
unknown person and a demand for him to leave the employ of
Beverly Tan and a threat to his life should he testify before the
Court. He testified that Banaag was a family driver of the Tan in
White Plains from March 1993 until August 1994, after said
date, he was taken by Reynaldo Tan as driver at Winreach. He
testifies that the statement of Oswaldo Banaag that he came
over to White Plains on February 5, 1995, drove the L300 Van
and followed the family to Greenhills Shopping Complex is
false. Because at that time, the L300 was still parked inside
White Plains, it was just a concocted statement of Banaag
because he has a grudge on Mrs. Tan as she did not help him
when he was incarcerated in Camp Crame (p.47-48 ibid).
He was told by Banaag that they were supposed to kidnap the
three siblings of Beverly Tan but he took pity on them because
Beverly is a nice person to him. He stated that Jessie Tan
helped him to be acquitted (p. 49 ibid) and promised good job
and house to live in.
As regards Janet Pascual, he testified that he had an
altercation with her (Janet) because there was an instruction
for him by Renevie for Janet not to let inside the house. That
Janet got mad at them because she is not been [sic] treated
the way Renevies mom did not to her. Likewise, Renevie has
refused to give her P5,000.00 allowance as her mom did
before to Janet for the latters medicine (pp. 50-51).
On account of said incident, she made a threatening remark
that if she will not be treated fairly and the P5,000.00 allowance
be not given to her, she will go to the Tan Brother and she will
testify Mrs. Tan. When asked whom she was angry of Bruzo
said it was against Renevie and Atty. Morales. She was angry
with the latter because she thought that Atty. Morales was
telling Renevie not to give her allowance anymore and refuse
access inside the white plains (p. 51 ibid).

14

When asked if he knows Malibiran, he said that he was able to

join him twice when there was a delivery of rejected bread for
fish feeds in Bulacan. That he saw him eight (8) times in a
month in 1994 and just twice a week in the month of August,
September and October of said year. (p. 52 ibid). He also saw
him on July of 1994 on the occasion of Beverlys Birthday.
That on February 5, 1994, Beverly called on him to relay to
Roger to fetch the three kids in Green Hills. When asked the
tone of Beverly at the time of the phone call, he said the tone
was that she was scared and confused (p. 63 ibid)
Tessie Luba, the caretaker of Manila Memorial Park testified
that she was paid by Beverly to take care of the tomb of
Reynaldo and that in some points in time Jessie took over and
later her services were not availed of anymore (p. 23, April 30,
2002 TSN) That she saw Beverly with Banaag on November
1996 (p. 8 ibid) and Jessie with Banaag in one occasion in
going to the tomb on November 1997 (p. 47 ibid) and in April
2001 (p. 20 ibid).
Emily Cuevas, one of the friends of Beverly testified that Janet
Pascual is a back fighter and a traitor, that Janet tried to
convince her to testify against Beverly and if witness will be
convinced, Janet will receive a big amount of money about
three (3) million from another source. Testified that it is not true
that Beverly and Malibiran orchestrated or masterminded the
death of Reynaldo, and that Janet testified because she
needed money because she is sick and diabetic (p. 7, May 21,
2002 TSN). She knows such fact by heart that they are
innocent and that they are good people (p. 20 ibid).
Victorino Felix, a police officer testified that Malibiran is a
member of the Aquarius Multi-Purpose Cooperative, a
cooperative that is engaged in the culture of fish particularly
"Bangus" at Laguna De Bay particularly Bagumbong,
Binangonan, Laguna.
He testified that sometime in 1994, he together with Malibiran
waited at Tropical Hut, Cainta for them to be picked up for
Bulacan to purchase fingerlings. They were fetched by an L300
Van driven by Oswaldo Banaag and they were around six or
seven at that time that headed first to Dampalit, Malabon,
Metro Manila to meet the owner of the fish pond, finding that
the owner thereof was already in Bulacan they proceeded
thereat, at Taliptip, Bulacan. In said place, they left the L300
Van along the bridge, near the sea and from there they rode a
motor banca in going to the fingerlings ponds. He testified that
Oswaldo was not with them in going to the pond from Taliptip
(pp. 11-13, Sept. 3, 2002 TSN). When asked where he was, he
said he drove the L300 back (p. 14 ibid). The pond was about
three kilometers from Talilip, and they were able to buy
fingerlings, loaded it in another water transport going to Laguna
Lake from Bulacan traversing Pasig River and thereafter they
returned back to Binangonan (p. 15 ibid).
On Cross, he testified that has met Banaag many times
because he used to deliver rejected for bangus feeds, but said
that it was only once when Banaag drove with him, that is
sometimes in 1994 (p. 20 ibid). he testified that Malibiran
together with him went to Talilip, Bulacan to procure some
fingerlings sometime in June 1995 to mid 1996 (Joint Order,
Sept. 3, 2002, p. 366 Vol. III record).

Virgilio Dacanilao testified that on February 5, 1995 at about

12:00 noon he was at the residence of one Gloria Malibiran
Santos and from there, he saw accused Rolando Malibiran
together with his wife and children, witness parents-in-law and
sisters-in-law. When asked who his parents-in-law is, he said
Fernando Malibiran and Jovita Malibiran, the parents of
Rolando Malibiran (p. 5, Sept. 17, 2002 TSN). He said that
they left the occasion at around 5:00pm and at that time,
accused Malibiran, with Boy Santos and Eduardo was still
playing "pusoy". When asked if there was such a time that
Malibiran left the house of Gloria Santos, he said, he did not go
out of the house sir (pp. 5-7 ibid).
On Cross examination, it was disclosed that he knows
Malibiran at the time witness was still his wife, the sister of
Malibiran, that was sometime in 1988. when asked if he
considered Malibiran to be close to him as the brother of his
wife, he said yes sir (p. 10 ibid). Asked if his relationship with
him is such that he would place Malibiran in a difficult situation,
he answered, it depends on the situation (p. 11 ibid). Witness
was asked how long it would take to reach Unimart
Supermarket from his residence in Malanday, he estimate it to
be more or less half an hour (p. 13 ibid). He testified that no
game was ever stop [sic] on the reason that they have to wait
for Malibiran.
Said witness testimony was corroborated by Jose Ong Santos,
the father of the child who was baptized on said occasion. He
testified that he played "pusoy" with Malibiran at around
2:00pm, until 6:30 to 7:00 pm and there was never a time that
Malibiran left the table where they were playing except when
he feels like peeing (p. 10 July 16, 2002 TSN). It was estimated
at abut five times, and it took him about three to five minutes
everytime he would rise to pee and return to the table. That
Malibiran may have left their house at around 6:30 or 7:00 in
the evening on February 5, 1995 (p. 11, ibid)
On Cross examination, he testified that the idea of baptism was
rushly scheduled, because he won in a cockfight three to four
days before the baptism of his child at about February 1 or 2 of
1995. That amount was about P50,000.00 (pp. 20-21 ibid).
Malibiran did not take any participation in the baptism nor was
he present at the church, but was already at the reception with
his family, for lunch. He testified that Malibiran left by call of
nature, to pee, about four to five times and a span of five
minutes (p. 31 ibid).
Accused Rolando Malibiran in his Counter-Affidavit said that he
does intelligence work for seven years. He doesnt know
Banaag as to reckless discuss a supposed plot to kill
somebody within his hearing. That would be inconsistent with
the entire training and experience as a police officer. Especially
when the expertise is intelligence work. Banaag drove for them
in June or July 1995 not in June of 1994 (for months after the
death of Reynaldo) [pp. 147-152, Exh. "HH" Vol. 1-a record].
He testified that he met Banaag sometime in the last quarter of
1993 at the piggery of Beverly Tan (pp. 12-13, Oct. 8, 2002
TSN). He admitted that he was with Banaag using the L300
Van of Beverly in one occasion, in 1994 when they purchased
fingerlings from Bulacan. They procured the same because
their cooperative was culturing "bangus" in Barangay Bombon,
Binangonan, Rizal (pp. 14-15). He testified that in Bulacan,
Banaag was left at the foot of the bridge where the L300 was
parked (p. 19 ibid) and heard that Beverly told Banaag to go
back, in White Plains (p. 21, ibid). After procuring the

15

fingerlings, they rode a big banca called "pituya" then they

went back to Pritil, Binangonan. In Pritil, they waited for
Banaag (P. 26 ibid).
He denied having met Janet Pascual on Wednesday at about
February 8, 1995 because since Tuesday (February 7, 1995)
he was already confined in the Camp by Order of his Unit
Commander, Chief Inspector Florentin Sipin (p. 5, January 21,
2003 TSN) because he was under investigation by the
Presidential Anti-Crime Commission. He admitted that he met
Beverly in the last quarter of 1993 (p. 8, October 22, 2002) but
denied having intimate relations with her (p. 21 ibid).
He testified that he met Janet Pascual only once, on November
1994, but said that they never talked (p. 12, November 12,
2002 TSN). He denied having married Beverly Tan nor did he
ever requested Janet Pascual to secure a license for them to
get married. He denied having had a trip with Janet in Bulacan
and admitted that he went to Zamables once, with Beverly, kids
and yaya as well as his father (p. 25, ibid), that was sometime
in 1994, before Reynaldo died. He testified that he used his
own vehicle with his father in going to Zamables. He denied
seeing Reynaldo; he said he just heard him based on his
conversation with Beverly Tan which took place in the piggery
in Marikina. In sum, the place of incidents where he managed
to meet and talk with Beverly Tan was in the piggery in
Marikina; at Camp station in Taytay Rizal; in Bulacan when
they procured fingerlings in Binangonan; Malabon; Zambales;
White Plains and Cainta. (pp. 30; 32; 35 ibid).
He testified that he was arrested in Candelaria Quezon on
December 1998 (p. 11 January 21, 2003) but denied living with
Beverly Tan at the time of the arrest. He said he just saw
Beverly thirty (30) minutes after his arrest in the town proper of
Candelaria, Quezon (P. 21, ibid). He denied that he uttered the
remark "its better to kill Rene since you are not benefiting from
him" (p. 38 ibid); never have access to grenades; never asked
Beverly Tan how he could get inside Reynaldos Car never
claimed to be a sharp shooter and had never went to Batangas
uttering the remarks mentioned by Janet Pascual nor went to
Batangas at the time of Beverlys birthday.
On Cross examination, he said that he never talk to Janet at
the time of his restriction and thereafter. He had no commercial
dealing with Janet nor have any romantic relations with her (p.
8, ibid). It was only when the case was filed he was able to talk
to her (p. 5, February 4, 2003 TSN). He testified that he
evaded arrest because there was a pending petition for review
filed by his lawyer before the Department of Justice despite the
fact that there is an existing warrant of arrest which he found
out at the end of 1997 (p. 15 ibid).
On September 23, 2003, the RTC found Rolando guilty of
Murder and appellant, of Parricide. The dispositive portion of
the Joint Decision reads as follows:
WHEREFORE, the Court finds both accused guilty beyond
reasonable doubt as charged. Accused Rolando Malibiran for
the crime of Murder in Criminal Case No. 113065-H and
accused Beverly Tibo-Tan for Parricide in Criminal Case No.
113066-H defined and penalized under Article 248 and Article
246, respectively, of the Revised Penal Code, as amended, in
relation to Republic Act No. 7659 with the attendant
circumstances of treachery, evident premeditation and use of
explosion and sentencing both accused the supreme penalty of
DEATH, and ordering them to pay jointly and severally to the

heirs of Reynaldo Tan the amount of Fifty Thousand

(P50,000.00) Pesos as indemnity for death, Eighty Thousand
(P80,000.00) Pesos as actual damages; Fifty Thousand
(P50,000.00) as moral damages; and to pay the costs.
SO ORDERED.8
Appellant then appealed to this Court; the appeal was,
however, referred to the CA pursuant to People v. Mateo.9
In its Decision dated November 13, 2006, the CA affirmed the
Decision of the RTC. The CA, however, took judicial notice of
Republic Act No. 9346 prohibiting the imposition of the death
penalty and thus reduced the penalty to reclusion perpetua.
The dispositive portion of the said Decision reads as follows:
WHEREFORE, premises considered, the joint decision dated
September 23, 2003 of the Regional Trial Court, Special Court
for Heinous Crimes, Branch 156, Pasig City in Criminal Case
No. 113065-H for Murder and Criminal Case No. 113066-H for
Parricide is hereby AFFIRMED with Modification in that the
supreme penalty of death imposed on both accused-appellants
is hereby reduced to RECLUSION PERPETUA.
SO ORDERED.10
As manifested by the Office of the Solicitor General (OSG),
Rolando did not file a Motion for Reconsideration or a Notice of
Appeal from the CA Decision.11 For all intents and purposes,
the judgment of conviction as to Rolando became final and
executory on December 14, 2006. This was confirmed by CA
Resolution dated January 29, 2007, which noted that "pursuant
to the report dated January 23, 2007 of the Judicial Records
Division that no motion for reconsideration or notice of appeal
had been filed by counsel for appellant Rolando Malibiran,
entry of judgment is issued against said appellant x x x."12
This review shall therefore pertain only to appellant Beverly
Tibo-Tan's conviction.
Appellant and the OSG were required by the Court in its
Resolution dated October 3, 2007 to file supplemental briefs, if
they so desired. The OSG filed a Manifestation and Motion that
it would no longer file any supplemental brief. As regards
appellant, records show that, as of even date, she had not filed
any supplemental brief, despite due notice.13
In the Brief she filed with the Court prior to the endorsement of
the case to the CA, appellant raised the following assignment
of errors:
I.
THE REGIONAL TRIAL COURT ERRED IN FINDING THAT
ACCUSED-APPELLANT BEVERLY TIBO TAN GUILTY OF
THE CRIME OF PARRICIDE BASED MERELY ON
CIRCUMSTANCIAL
EVIDENCE,
THE
REQUISITES
THEREOF
NOT
HAVING
BEEN
SUBSTANTIALLY
ESTABLISHED;
II.

16

THE REGIONAL TRIAL COURT SHOULD HAVE NOT

APPRECIATED THE TESTIMONY OF PROSECUTION
WITNESS OSWALDO BANAAG AS ITS BASIS FOR
ESTABLISHING CONSPIRACY BETWEEN ACCUSEDAPPELLANT MALIBIRAN AND ACCUSED-APPELLANT
BEVERLY TAN, SUCH TESTIMONY BEING HEARSAY ON
SOME PARTS AND REPLETE WITH INCONSISTENCIES;14
Before proceeding to the merits of appellant's arguments, the
Court takes note of the RTC's observation regarding
appellant's stoic stance during and after the incident and her
non-presentation as witness. The RTC took this negatively
against appellant. The Court differs therefrom.
Appellant's seeming indifference or lack of emotions cannot be
categorically quantified as an indicium of her guilt. There is no
hard and fast gauge for measuring a person's reaction or
behavior when confronted with a startling, not to mention
horrifying, occurrence. It has already been stated that
witnesses of startling occurrences react differently depending
upon their situation and state of mind, and there is no standard
form of human behavioral response when one is confronted
with a strange, startling or frightful experience. The workings of
the human mind placed under emotional stress are
unpredictable, and people react differently some may shout,
some may faint and others may be shocked into insensibility.15
Also, appellant's failure to testify in her defense should not be
taken against her. The Court preserves the rule that an
accused has the right to decline to testify at the trial without
any inference of guilt drawn from his failure to be on the
witness stand.16 The constitutional right to be presumed
innocent still prevails.
This notwithstanding, the totality of the circumstantial evidence
presented against appellant justifies her conviction of the crime
of Parricide.
Appellant claims that the circumstantial evidence proven during
trial only shows that there was a possibility that appellant may
have conspired with Rolando, but nevertheless claims that it
came short of proving her guilt beyond reasonable doubt.17
Appellant further argues that the testimony of Oswaldo was in
some parts hearsay and replete with inconsistencies. 18
Specifically, appellant contends that the testimony of Oswaldo
that "he overheard a conversation between Malibiran
(Rolando) and Beverly (appellant) that they will fetch a man in
Bulacan that knows how to place a bomb in a vehicle" is
hearsay.19 Likewise, in her Reply Brief, 20 appellant claims that
the testimony of Janet is hearsay.
Contrary to the claim of appellant, the testimonies of Oswaldo
and Janet are not covered by the hearsay rule.
The hearsay rule states that a witness may not testify as to
what he merely learned from others either because he was
told, or he read or heard the same. This is derived from Section
36, Rule 130, Revised Rules of Court, which requires that a
witness can testify only to those facts that he knows of or
comes from his personal knowledge, that is, that are derived
from his perception. Hearsay testimony may not be received as
proof of the truth of what he has learned.21

The law, however, provides for specific exceptions to the

hearsay rule. One is the doctrine of independently relevant
statements, where only the fact that such statements were
made is relevant, and the truth or falsity thereof is immaterial.
The hearsay rule does not apply; hence, the statements are
admissible as evidence. Evidence as to the making of such
statement is not secondary but primary, for the statement itself
may constitute a fact in issue or be circumstantially relevant as
to the existence of such a fact.22 The witness who testifies
thereto is competent because he heard the same, as this is a
matter of fact derived from his own perception, and the
purpose is to prove either that the statement was made or the
tenor thereof.23
In this case, Oswaldo's testimony that he overhead a
conversation between Rolando and appellant that they would
fetch a man in Bulacan who knew how to place a bomb in a
vehicle is admissible, if only to establish the fact that such
statement was made and the tenor thereof. Likewise, Janet
may testify on matters not only uttered in her presence, since
these may be considered as independently relevant
statements, but also personally conveyed to her by appellant
and Rolando.
Appellant further argues that Oswaldo's testimony to the effect
that he drove the L300 van of the Tan family and brought
Rolando to the parking lot where Reynaldos Honda Accord
was parked, was refuted by defense witness Romulo, the
security guard of the Tan family. Romulo testified that the L300
van never left White Plains on the day of the incident.24
While the defense may have presented Security Guard Romulo
to refute the testimony of Oswaldo, it is settled that when
credibility is in issue, the Supreme Court generally defers to the
findings of the trial court, considering that it was in a better
position to decide the question, having heard the witnesses
themselves and observed their deportment during trial.25 Thus,
in the absence of any palpable error, this Court defers to the
trials court's impression and conclusion that, as between
Oswaldo and Romulo, the former's testimony deserved more
weight and credence.1awphi1
There is nothing on record to convince the Court to depart from
the findings of the RTC. On the contrary, the testimony of Janet
as corroborated by Oswaldo, though circumstantial, leaves no
doubt that appellant had in fact conspired with Rolando in
bringing about the death of her husband Reynaldo. As a rule of
ancient respectability now molded into tradition, circumstantial
evidence suffices to convict, only if the following requisites
concur: (a) there is more than one circumstance; (b) the facts
from which the inferences are derived are proven; and (c) the
combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.26
The case of the prosecution was primarily built around the
strength of the testimonies of Janet and Oswaldo. The salient
portions of Janet's testimony are extensively quoted
hereunder:
Q. Anything else significant that happened in the
remaining of 1994, Ms. Pascual?
A. After they were married, they talked about what
they're gonna do for Rene.

17

Q. Where did they discuss it?

A. The baptismal be held on February 5, 1995, sir.

A. Inside the car, Botong was asking Beverly how

would he be able to get inside the car since he
has no key and Beverly said that she can do
something about it and so it was in the last week
of November 1994 of first week of December 1994
when they shopped for so many things.

Q. Why did they choose that date of the binyag?

Q. Who is (sic) with him?

xxxx

A. Rene, Beverly and her three kids. Rene asked her

since Rene and kids would still shop, Rene asked her
to brings the goods to the car in the compartment.

Q. What day of the week was this?

Q. And then?
A. And after Beverly placed the things inside the
compartment, she had with her the key, she
proceeded to a key duplicator in Virra Mall and
had the key duplicated.

A. So that if a picture was taken during the baptism,

there would be witnesses that they were in the
baptism, they would not be suspected that they have
something to do with that.27

A. Sunday, Ma'm.
Q. What kind of kind [sic] was duplicated?
A. The key in the new car of Rene the Honda
Accord.
Court:

Q. When did she give the key to Malibiran, if you

know?
A. That was already December, I cannot recall the
exact date, sir.
Q. Why did Mr. Malibiran need the key?
A. Because they planned, since they cannot use
the gun Butch said that they would use grenade
instead because he had a grenade in his house.
But their only problem is how to get inside the car.

But in the first place, you were not there when it

was duplicated? How you were [sic] able to know
that it was indeed duplicated?
A. Because after Beverly had duplicated the key,
she told me that she was able to have the key
duplicated and she told me how she did it and she
told me that she will give the key to Butch.
Q. Did she show you the duplicated key?
A. Ginanoon niya lang.

COURT:
Q. What does it looked [sic] like?
Who is Butch?
A. Mr. Malibiran, your Honor.

A. Iyong mahaba na malaki. Hindi ko na inano basta

susi, nag-iisa.

COURT

Q. On what occasion did she tell you about this?

Butch and Botong are one and the same person?

A. None, I was just in White Plains.

A. Yes, your Honor.

Q. When was this?

Q. Did they discuss how, where and when they would

planted the grenade in the car of Rene?

A. That was December, 1994.

A. I heard from them that they would do it during the

baptismal of the child of Gloria who is the sister of
Butch.
Q. And Butch is Botong?

Q. What was their decision when they will execute the

plan?
A. It will be during the baptismal of the child of Gloria
because Butch is one of the sponsors. 28 (Emphasis
Supplied)

A. Botong, sir.

In addition, Oswaldo testified on the occurrences on

the day of the incident, in this wise:

Q. Do you know when that binyag when supposed to

be held?

Q: Why did you go to Greenhills?

18

A. I was told by Ate Beverly to follow them

wherever they go.

Who is Botong?
A. Rolando Malibiran, Your Honor.

Q. What time did she tell you to go there?

Q. The accused in this case?
A. After lunch, sir.
A. Yes, your Honor.29
Q. What vehicle did you use to follow her?
xxxx
A. L300, sir.
Q. Upon whose instruction?

Q. You picked up Malibiran at Caltex on February 5,

1995?

A. Ate Beverly, sir.

A. Yes, sir.

Q. Did you in fact follow her?

Q. What time was that?

A. Yes, sir.

A. Around 2 o'clock, sir.

Q. What time did they reach. the[W]hiteplains?

Q. Who if any was with him?

A. Almost 1 o'clock, sir.

A. Two guys. One whom I saw in [sic] Bulacan and

the one whom we sinakay at Hilltop.

Q. Incidentally, who was with Beverly?

Q. When did you go in [sic] Bulacan?
A. Kuya Rene Tan, Beverly Tan, Renebie, Jag and JR.
A. In June 1994, sir.
Q. What car did they use?
Q. With whom?
A. Honda Accord.
Q. Color?
A. Red, sir.
Q. Who drived [sic]?
A. Kuya Rene, sir.
Q. What part of Greenhills did they go?
A. The parking lot infront [sic] of Unimart, sir.
Q. What did you do when they come [sic] to
Greenhills?

A. Botong, Beverly, Janet, I and two guys in Hilltop

because that is the instruction of Beverly.
Q. Do you know the name of the two guys from
Hilltop?
A. If given the chance I can recognize them but I do
not know them by name.
Q. What did you do in Bulacan?
A. We went to the Island near the sea.
Q. What did you do at that Island?
A. They talked to a person.

A. When I found out they already parked and Kuya

Rene got in I went straight to Katipunan.

Q. What if you know the date [sic] all about?

Q. Why?

A. As far as I remember they talked about the

plans about the killing of Kuya Rene.30

A. Because I was told by Ate to fetch Botong.

Q. Where in Katipunan?
A. In Caltex near Shakeys.
COURT

xxxx
Q. Where did they ride on Feb. 5, 1995?
A. In Katipunan, sir.
Q. What did they ride?

19

A. L300 that I was driving, sir.

Q. Where if any did you go after picking them up?
A. From Caltex we proceeded to Greenhills.
Q. Why?
A. Because that is the instruction of Ate Beverly.
Where they were, I will drop them there.
Q. Did you do that?
A. Yes, sir.
Q. Where exactly did you drop them on?
A. In the place where Kuya Rene was parked.31
xxxx
COURT: x x x What happened while they were inside
the vehicle while you were going back to the place as
instructed by Beverly?
A. After that I brought them where the car of Kuya
Rene was parked, Your Honor. Before they alighted,
Botong asked, dito na ba?32
Atty. Rondain:
So you replied Opo, dyan po pumasok si Kuya Rene?
A. After I alighted they just go [sic] around.
Q. Where?
A. In Greenhills, sir.
Q. Then, what happened?
A. After half an hour I saw Kuya Botong, the three
of them. Then they stopped me and the three of
them boarded the vehicle.
Q. What happened?
A. After they boarded, the man from Bulacan said,
ano pare, malinis na paggawa nito. Then, I was
told by Botong to bring them to Hilltop.33
Based on the foregoing, the testimonies of Janet and Oswaldo
clearly link appellant to the planning of the crime. True, as
intimated by appellant, she may not have been at the scene of
the crime at the time of the explosion; 34 but then again, if she
was, then she would have suffered the same fate as Reynaldo.
Moreover, the nature of the crime and the manner of its
execution, i.e., via a booby trap, does not demand the physical
presence of the perpetrator at the very time of its commission.
In fact, the very manner in which it was carried out

necessitated prior scheming and execution for it to succeed.

Thus, appellant's absence from the actual scene of the crime
does not negate conspiracy with Rolando in plotting the death
of her husband. A conspiracy exists even if not all the parties
committed the same act, but the participants performed
specific acts that indicated unity of purpose in accomplishing a
criminal design.35 Moreover, direct proof of previous agreement
to commit an offense is not necessary to prove conspiracy -conspiracy may be proven by circumstantial evidence.36
The testimonies of Janet and Oswaldo established the
following set of circumstances which, if taken collectively, show
the guilt of appellant: that appellant and Rolando conspired,
planned and agreed to kill Reynaldo using a grenade; that
appellant duplicated the key to the red Honda Accord of
Reynaldo so that Rolando could gain access to the car; that
appellant thereafter gave the duplicate key to Rolando; that on
February 5, 1995, appellant told Oswaldo to follow the red
Honda Accord of Reynaldo until the latter parked the car; that
appellant told Oswaldo to thereafter pick up Rolando at
Katipunan and bring the latter to where Reynaldo parked his
red Honda Accord. Reynaldo died soon after due to injuries he
sustained from an explosion caused by grenades planted in his
car.
Another notable fact is that according to the expert opinion of
Inspector Selverio Dollesin, Chief of the Bomb Disposal Unit of
the Eastern Police District, the perpetrator had information
about the victim's movements. Dollesin also observed that the
perpetrator knew his intended victim, since the grenade was
specifically placed in between the driver's seat and the front
door. That the perpetrator knew the victim's movements was
further corroborated by the affidavits executed by the Tan
children, Renevie37 and Jag Carlo38 , attesting that while they
spent their Sundays with their father, this was the only time that
they spent a Sunday in Greenhills. Only someone who had
close personal contact with Reynaldo would know his
movements, where the car would be parked, and that he was
the one who usually drove the red Honda Accord, such that it
was precisely positioned to ensure damage to the intended
victim.
There is no doubt that, based on the testimony of Janet, it was
Rolando who planted the grenades inside the car of Reynaldo,
to wit:
Q. Where did you go?
A. When I was inside the Canter, Botong (Rolando)
was asking me while the vehicle was moving slowly.
He asked me what happened in the funeral parlor.
Q. And what did you say?
A. I told him that Major Penalosa called me for an
interview but I did not say anything.
Then were already in front of the V. Luna Hospital.
COURT
What Hospital?
A. V. Luna, your Honor, along Katipunan.

20

COURT
Luna in Katipunan?
A. V. Luna is going to Katipunan, your Honor. It was
Labor Hospital, your Honor and not V. Luna. Then
Botong told me that on the day he placed the
grenade, he was seeing a guard roving and so
what he did since he was already perspiring at
that time he hurriedly tied the wire in the grenade.
Atty. Rondain:
Iqoute na lang natin.

2006, the imposition of the penalty of death has been

prohibited. Thus, the proper penalty to be imposed on
appellant as provided in Section 2, paragraph (a) of said law is
reclusion perpetua.42 The applicability of R.A. No. 9346 is
undeniable in view of the principle in criminal law that
favorabilia sunt amplianda adiosa restrigenda. Penal laws that
are favorable to the accused are given retroactive effect.43
In addition, appellant is not eligible for parole pursuant to
Section 3 of R.A. No. 9346, which states:
SECTION 3. Persons convicted with reclusion perpetua, or
those whose sentences will be reduced to reclusion perpetua,
by reason of this Act, shall not be eligible for parole under Act
No. 4103, otherwise known as the Indeterminate Sentence
Law, as amended.

COURT
Dinali-dali niyang ibinuhol ang alambre. That's her
term.39 (Emphasis Supplied)
What sealed appellant's fate was that, as observed by the
RTC, there were already outstanding warrants of arrest against
appellant and Rolando as early as September 11, 1997; yet
they evaded arrest and were only arrested on December 4,
1998.40 It is well settled that flight, when unexplained, is a
circumstance from which an inference of guilt may be drawn.
"The wicked flee, even when no man pursueth; but the
righteous are as bold as a lion."41 Appellant did not even proffer
the slightest explanation for her flight.
All told, this Court is convinced beyond a reasonable doubt that
appellant is guilty of the crime as charged. Moreover,
considering the manner in which appellant and Rolando
planned and executed the crime, the RTC was correct in
appreciating the aggravating circumstances of treachery,
evident premeditation, and use of explosives. Thus, appellant
is guilty of the crime of Parricide as provided in the Revised
Penal Code, to wit:
Article 246. Parricide- Any person who shall kill his father,
mother, or child, whether legitimate or illegitimate, or any of his
ascendants, or descendants, or his spouse, shall be guilty of
parricide and shall be punished by reclusion perpetua to death.
(Emphasis Supplied)
Moreover, the Revised Penal Code provides for death as the
proper penalty:
Article 63. Rules for the application of indivisible penalties.
xxxx
In all cases in which the law prescribes a penalty composed of
two indivisible penalties, the following rules shall be observed
in the application thereof:
When in the commission of the deed there is present only one
aggravating circumstance, the greater penalty shall be applied.
However, as observed by the CA, with the effectivity of
Republic Act (R.A.) No. 9346 entitled "An Act Prohibiting the
Imposition of Death Penalty in the Philippines" on June 24,

Lastly, as to the award of damages, the RTC awarded the

following amounts: (1) P50,000.00 as civil indemnity for death,
(2) P80,000.00 as actual damages, and (3) P50,000.00 as
moral damages.1avvphi1
In the recent case of People v. Regalario,44 the Court stated:
While the new law prohibits the imposition of the death penalty,
the penalty provided for by law for a heinous offense is still
death and the offense is still heinous. Consequently, the civil
indemnity for the victim is still P75,000.00. x x x the said award
is not dependent on the actual imposition of the death penalty
but on the fact that qualifying circumstances warranting the
imposition of the death penalty attended the commission of the
offense.
As to the award of moral and exemplary damages x x x. Moral
damages are awarded despite the absence of proof of mental
and emotional suffering of the victim's heirs. As borne out by
human experience, a violent death invariably and necessarily
brings about emotional pain and anguish on the part of the
victim's family. If a crime is committed with an aggravating
circumstance, either qualifying or generic, an award of
exemplary damages is justified under Article 2230 of the New
Civil Code. This kind of damage is intended to serve as
deterrent to serious wrongdoings and as vindication of undue
sufferings and wanton invasion of the rights of an injured, or as
a punishment for those guilty of outrageous conduct. However,
consistent with recent jurisprudence on heinous crimes where
the imposable penalty is death but reduced to reclusion
perpetua pursuant to Republic Act No. 9346, the award of
moral damages should be increased from P50,000.00 to
P75,000.00 while the award of exemplary damages should be
increased from P25,000.00 to P30,000.00.
Consistent therewith, the RTC's award should be modified: the
civil indemnity should be increased to P75,000.00, and moral
damages to P75,000.00.
Moreover, although not awarded by the RTC and pursuant to
Regalario, exemplary damages in the amount of P30,000.00 is
likewise warranted because of the presence of the aggravating
circumstances of intent to kill, treachery, evident premeditation
and the use of explosives. The imposition of exemplary
damages is also justified under Art. 2229 of the Civil Code in
order to set an example for the public good.45

21

However, the award of P80,000.00 by the RTC as actual

damages is deleted for lack of competent evidence to support
it. Only substantiated and proven expenses, or those that
appear to have been genuinely incurred in connection with the
death, wake or burial of the victim will be recognized by the
court.46 In lieu thereof, appellant should pay temperate
damages in the amount of P25,000.00, said amount being
awarded in homicide or murder cases when no evidence of
burial and funeral expenses is presented in the trial court, 47 and
in accordance with prevailing jurisprudence. 48 Under Article
2224 of the Civil Code, temperate damages "may be awarded
when the Court finds that some pecuniary loss has been
suffered but its amount cannot, from the nature of the case, be
proved with certainty."
Finally, Section 11, Rule 122 of the Rules of Court provides
that:
An appeal taken by one or more of several accused shall not
affect those who did not appeal, except insofar as the judgment
of the appellate court is favorable and applicable to the latter.
Since Rolando did not appeal the decision of the CA, only
portions of this judgment that are favorable to Rolando may
affect him. On the other hand, portions of this judgment that
are unfavorable to Rolando cannot apply to him. Thus, he
cannot be made liable to pay for exemplary damages, as the
same were not awarded by the RTC.49 However, he benefits
from this Court's finding that, instead of actual damages, only
temperate damages should be awarded to the heirs of the
victim.
WHEREFORE, the Court of Appeals Decision dated November
13, 2006 and Resolution dated September 23, 2003, finding
appellant Beverly Tibo-Tan guilty beyond reasonable doubt of
Parricide and sentencing her to suffer the penalty of
RECLUSION PERPETUA are hereby AFFIRMED. Appellant is
ineligible for parole and is further ordered to pay, jointly and
severally with Rolando Malibiran, the heirs of Reynaldo Tan the
amounts of P75,000.00 as civil indemnity, P75,000.00 as moral
damages and P25,000.00 as temperate damages. In addition,
appellant is solely liable to pay the heirs of Reynaldo Tan the
amount of P30,000.00 as exemplary damages.
Costs de oficio.
SO ORDERED.

G.R. No. 179830

December 3, 2009

LINTANG
BEDOL,
Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
DECISION

7, 2007, held petitioner guilty of contempt of the COMELEC

and meted out to him the penalty of six (6) months
imprisonment and a fine of P1,000.00. The second Resolution2
dated August 31, 2007, denied petitioners motion for
reconsideration.
The facts as stated by the COMELEC follow:
On May 14, 2007, the National and Local elections were held
under the auspices of this Commission.
As Chair of the Provincial Board of Canvassers (PBOC) for the
province of Maguindanao, the respondent [petitioner]
discharged his official functions and was able to ensure the
PBOCs performance of its ministerial duty to canvass the
Certificates of Canvass coming from the twenty two (22) city
and municipalities in the province.
At that time, respondent [petitioner] also was charged with the
burdensome and gargantuan duty of being the concurrent
Provincial Elections Supervisor for the Province of Shariff
Kabunsuan a neighboring province of Maguindanao.
Respondent [petitioner] Bedol failed to attend the scheduled
canvassing of the Provincial Certificates of Canvass (PCOC) of
Maguindanao of which he is the Provincial Election Supervisor
which was slated on May 22, 2007.
On May 25, 2007, respondent appeared before the
Commission, en banc sitting as the National Board of
Canvassers (NBOC) for the election of senators to submit the
provincial certificate of canvass for Maguindanao, pursuant to
his functions as Provincial Elections Supervisor and chair of
the PBOC for Maguindanao. Due to certain observations on
the provincial certificates of canvass by certain parties,
canvassing of the certificate was held in abeyance and
respondent was queried on the alleged fraud which attended
the conduct of elections in his area.
He was already informed of the resetting of the canvassing for
May 30, 2007, but failed to appear despite prior knowledge.
On June 4, 2007, Celia B. Romero, Director II, ERSD &
Concurrent Chief of the Records and Statistics Division of the
COMELEC issued a certification that as of even date, the
canvassing documents for all municipalities of the province of
Maguindanao in connection with the May 14, 2007 elections
were not transmitted by the Provincial Election Supervisor of
said province nor the respective Board of Canvassers.
The Commission and not just the NBOC, in the exercise of its
investigatory powers to determine existing controversies
created the Task Force Maguindanao, headed by
Commissioner Nicodemo Ferrer, which was tasked to conduct
a fact-finding investigation on the conduct of elections and
certificates of canvass from the city and municipalities in
Maguindanao.

LEONARDO-DE CASTRO, J.:

Challenged in this petition for certiorari are the twin Resolutions
issued by the respondent Commission on Elections
(COMELEC) En Banc in the case entitled "In the Matter of the
Charge of Contempt of the Commission Against Election
Supervisor Lintang Bedol." The first Resolution 1 dated August

Respondent [petitioner] appeared before the Task Force during

its June 11, 2007 fact finding activity and responded to the
queries from the chair. It was during this hearing that
respondent [petitioner] Bedol explained that, while in his
custody and possession, the election paraphernalia were
stolen sometime on May 29, 2007, or some fifteen (15) days

22

after the elections. This was the first time such an excuse was
given by the respondent [petitioner] and no written report was
ever filed with the Commission regarding the alleged
loss.1avvphi1
Respondent [petitioner] Bedol was duly informed to be present
in the next scheduled investigative proceedings set for June
14, 2007 as the Task Force wanted to delve deeper into the
alleged loss by propounding additional questions to Atty. Bedol
during the next scheduled proceedings, such as why he still
had in his possession said documents which should have
already been turned over to the Commission, why he did not
report to the COMELEC or to the police authorities the
purported theft, and other pertinent questions. However,
despite actual notice in open session, Atty. Bedol failed to
appear, giving the impression that respondent [petitioner] Bedol
does not give importance to this whole exercise and ignores
the negative impact his attitude has on this Commission.
Also respondent [petitioner] failed and refused to submit a
written explanation of his absences which he undertook to
submit on June 13, 2007, but was only received by this
Commission belatedly on July 03, 2007.
On June 26, 2007, [petitioner] came out on national
newspapers, in an exclusive interview with the Inquirer and
GMA-7, with a gleaming 45 caliber pistol strapped to his side,
and in clear defiance of the Commission posted the challenge
by saying that those that are saying that there was cheating in
Maguindanao, file a case against me tomorrow, the next day.
They should file a case now and I will answer their
accusations.(Words in brackets ours)
On June 27, 2007, the COMELEC through Task Force
Maguindanao head, Commissioner Nicodemo T. Ferrer, issued
a Contempt Charge and Show Cause Order3 against petitioner
citing various violations of the COMELEC Rules of Procedure,
viz:
You are hereby formally charged of contempt of this
Commission for having committed during the period between
May 14, 2007, and June 26, 2007, acts in violation of specific
paragraphs of Section 2, Rule 29 of the COMELEC Rules of
Procedure, as follows:
1. (a) Your (PES Bedols) failure to attend the
scheduled canvassing of the Provincial Certificates of
Canvass (PCOC) of Maguindanao of which he (sic) is
(sic) the Provincial Election Supervisor on May 22,
2007; (b) your failure to attend the reset schedule of
the canvassing on May 30, 2007, despite knowledge
thereof when you attended the previously scheduled
but again reset canvassing of said PCOCs on May 25,
2007; (c) your failure to attend the continuation of
hearing of the Task Force Maguindanao on June 14,
2007, despite notice to him in open session in the
hearing held on June 11, 2007, and personal service
to you of a subpoena which you duly signed on the
same date; and your failure/refusal to submit your
written explanation of your said absences which you
undertook to submit on June 13, 2007 all of these
failures on your part are violations of paragraphs (b)
and (f) of Section 2, Rule 29 of COMELEC Rules of
Procedure.

2. Your unlawful assumption of custody in your office

in Maguinadanao of the municipal certificates of
canvass (MCOC) and other accountable election
documents of all the municipalities of Maguinadanao
used in the last elections of 2007, but which should
have been delivered to the Commission on Elections
in its main office in Intramuros, Manila, and your
admission that said accountable documents were lost
from your said custody these constitute violations of
paragraphs (a), (c) and (d), section 2, Rule 29 of said
Rules.
3. Your pronouncements in the media flaunting
[disrespect to] the authority of the COMELEC over
you, challenging the institution to file a case against
you in court as it is only in court that you are ready to
face your accuser are violations of paragraphs (a) and
(d), Section 2, Rule 29 of said Rules.
4. Your regaling the media (interviews in national
television channels, newspapers and radios) with your
boast of possession of an armory of long firearms and
side arms, displaying in public for all to see in your
front-page colored portrait in a national broadsheet
and during a television interview a shiny pistol tucked
in a holster at your waist in a combative mode (sic)
these are clear violations of paragraphs (a) and (d),
Section 2, Rule 29 of said Rules. (Words in brackets
ours)
Through the foregoing June 27, 2007 Order, petitioner was
directed to appear before the COMELEC En Banc on July 3,
2007 at 10:00 oclock in the morning to personally explain why
he should not be held in contempt for the above-mentioned
offenses.
On July 2, 2007, petitioner was arrested by members of the
Philippine National Police on the basis of an Order of Arrest 4
issued on June 29, 2007 by the COMELEC after petitioner
repeatedly failed to appear during the fact-finding proceedings
before Task Force Maguindanao.
During the July 3, 2007 hearing, petitioner questioned the
COMELECs legal basis for issuing the warrant of arrest and its
assumption of jurisdiction over the contempt charges. Upon
petitioners motion, he was granted a period of ten (10) days
within which to file the necessary pleading adducing his
arguments and supporting authorities. The continuation of the
hearing was set on July 17, 2007.
On July 17, 2007, which was beyond the ten-day period he
requested, petitioner submitted an Explanation Ad Cautelam
with Urgent Manifestation, containing the following averments:
1. Respondent [petitioner] urgently manifests that he
is making a special appearance as he assails the
jurisdiction of the Honorable Commission and its
capacity to prosecute the present case in an impartial
and fair manner.
2. Respondent [petitioner] questions the issuance of a
warrant of arrest against him. He can not be validly
arrested or re-arrested as a witness who is being
compelled to testify in a hearing before the Honorable
Commission.

23

3. Respondent [petitioner] has not committed any

contemptuous acts against the Commission. He has
not committed those acts charged against him by the
Commission motu proprio. (Words in brackets ours.)

3. The respondents pronouncements in media

flaunting disrespect to the authority of the COMELEC
over him, challenging the institution to file a case
against him in court as it is supposedly only in court
that Respondent Bedol was ready to face his accuser
are violations of paragraphs (a) and (d), Section 2,
Rule 29 of said Rules.

During the hearing on July 17, 2007, petitioner reiterated his

objection to the jurisdiction of the COMELEC over the
contempt charges due to the absence of a complaint lodged
with the COMELEC by any private party. Petitioners objection
was treated as a motion to dismiss for lack of jurisdiction,
which was denied forthwith by the COMELEC. Petitioner was
then required to present evidence which he refused to do.
Various exhibits were then marked and presented to the
COMELEC. However, the latter allowed petitioner to file a
Memorandum within a period of ten (10) days and gave him
the opportunity to attach thereto his documentary and other
evidence.
On July 31, 2007, petitioner again belatedly filed his
Memorandum5 maintaining his objection to the jurisdiction of
the COMELEC to initiate the contempt proceedings on ground
that the COMELEC, sitting en banc as the National Board of
Canvassers for the election of senators, was performing its
administrative and not its quasi-judicial functions. Petitioner
argued that the COMELEC, in that capacity, could not punish
him for contempt.
On August 7, 2007, the COMELEC En Banc rendered the first
assailed Resolution, the dispositive part of which reads:
WHEREFORE, considering all the foregoing, respondent Atty.
Lintang Bedol is hereby found guilty of Contempt of the
Commission for the following acts and omissions:
1. (a) The failure to attend the scheduled canvassing
of the Provincial Certificates of Canvass (PCOC) of
Maguindanao of which he is the Provincial Election
Supervisor on May 22, 2007 (b) failure to attend the
reset schedule of the canvassing on May 30, 2007,
despite knowledge thereof when Respondent Bedol
attended the previously scheduled but again reset
canvassing on May 25, 2007 (c) failure to attend the
continuation of hearing of the Task Force
Maguindanao on June 14, 2007, despite notice to
Respondent in open session in the hearing held on
June 11, 2007, and personal service to him of the
subpoena which he duly signed on the same date; the
failure/refusal to submit written explanation of
respondents absences which he undertook to submit
on June 13, 2007 --- all of these failures are violations
of paragraphs (b) and (f) of Section 2, Rule 29 of
COMELEC Rules of Procedure.
2. The unlawful assumption of custody in the
Respondents office in Maguindanao of the Municipal
Certificates of Canvass (MCOC) and other
accountable election documents of all the
municipalities of Maguindanao used in the last
elections of 2007, but which should have been
delivered to the Commission on Elections in its main
office in Intramuros, Manila, and Respondents plain
admission that said accountable documents were lost
from his said custody --- these constitute violations of
paragraphs (a), (c) and (d), Section 2, Rule 29 of said
Rules.lavvphil

4. Regaling the public through the media (interviews

in national television channels, newspapers and
radios) with boast of possession of an armory of long
firearms and side arms, displaying in public, for all to
see in his front-page colored portrait in a national
broadsheet and during a television interview, a shiny
pistol tucked in a holster at your waist in a combative
mode (sic) --- these are clear violations of paragraphs
(a) and (d), Section 2, Rule 29 of said Rules.
All the foregoing constitute an exhibition of contumacious acts
showing disrespect for the institution, of which respondent is
even a ranking official, which is clearly contemptuous of this
Commission, for which Respondent Lintang Bedol is hereby
sentenced to suffer the penalty of imprisonment of six (6)
months and to pay a fine of One Thousand Pesos (P1,000.00).
The Legal Department of the Comelec is hereby directed to
investigate and determine whether or not any election offense
or crime under the Revised Penal Code has been committed
by respondent Lintang Bedol and to initiate the filing of the
necessary charge/s therefor.
SO ORDERED.
Aggrieved, petitioner filed a motion for reconsideration which
was denied by the COMELEC in the other assailed Resolution
dated August 31, 2007.
Hence, petitioner filed before the Court the instant petition for
certiorari raising the following issues:
I
WHETHER OR NOT THE COMMISSION ON ELECTIONS
HAS JURISDICTION TO INITIATE OR PROSECUTE THE
CONTEMPT PROCEEDINGS AGAINST THE PETITIONER.
II
WHETHER OR NOT THE COMMISSSION HAS ALREADY
PREJUDGED THE CASE AGAINST THE PETITIONER IN
VIOLATION OF HIS DUE PROCESS RIGHTS
III
WHETHER OR NOT THE FINDINGS OF THE COMMISSION
ON ELECTIONS, ASSUMING IT HAS JURISDICTION TO
PUNISH FOR CONTEMPT, ARE SUPPORTED BY
SUBSTANTIAL, CREDIBLE AND COMPETENT EVIDENCE.
We dismiss the petition.
The main thrust of petitioners argument is that the COMELEC
exceeded its jurisdiction in initiating the contempt proceedings

24

when it was performing its administrative and not its quasijudicial functions as the National Board of Canvassers for the
election of senators. According to petitioner, the COMELEC
may only punish contemptuous acts while exercising its quasijudicial functions.
The COMELEC possesses the power to conduct investigations
as an adjunct to its constitutional duty to enforce and
administer all election laws, by virtue of the explicit provisions
of paragraph 6, Section 2, Article IX of the 1987 Constitution,
which reads:
Article IX-C, Section 2. xxx
(6) xxx; investigate and, where appropriate, prosecute cases of
violations of election laws, including acts or omissions
constituting election frauds, offenses, and malpractices.
The above-quoted provision should be construed broadly to
give effect to the COMELECs constitutional mandate as
enunciated in Loong v. Commission on Elections,6 which held:
xxx. Section 2(1) of Article IX(C) of the Constitution gives the
COMELEC the broad power "to enforce and administer all laws
and regulations relative to the conduct of an election,
plebiscite, initiative, referendum and recall." Undoubtedly, the
text and intent of this provision is to give COMELEC all the
necessary and incidental powers for it to achieve the objective
of holding free, orderly, honest, peaceful, and credible
elections. Congruent to this intent, this Court has not been
niggardly in defining the parameters of powers of COMELEC in
the conduct of our elections.
The powers and functions of the COMELEC, conferred upon it
by the 1987 Constitution and the Omnibus Election Code, may
be classified into administrative, quasi-legislative, and quasijudicial. The quasi-judicial power of the COMELEC embraces
the power to resolve controversies arising from the
enforcement of election laws, and to be the sole judge of all
pre-proclamation controversies; and of all contests relating to
the elections, returns, and qualifications. Its quasi-legislative
power refers to the issuance of rules and regulations to
implement the election laws and to exercise such legislative
functions as may expressly be delegated to it by Congress. Its
administrative function refers to the enforcement and
administration of election laws. In the exercise of such power,
the Constitution (Section 6, Article IX-A) and the Omnibus
Election Code (Section 52 [c]) authorize the COMELEC to
issue rules and regulations to implement the provisions of the
1987 Constitution and the Omnibus Election Code.7
The quasi-judicial or administrative adjudicatory power is the
power to hear and determine questions of fact to which the
legislative policy is to apply, and to decide in accordance with
the standards laid down by the law itself in enforcing and
administering the same law. The Court, in Dole Philippines Inc.
v. Esteva,8 described quasi-judicial power in the following
manner, viz:
Quasi-judicial or administrative adjudicatory power on the other
hand is the power of the administrative agency to adjudicate
the rights of persons before it. It is the power to hear and
determine questions of fact to which the legislative policy is to
apply and to decide in accordance with the standards laid
down by the law itself in enforcing and administering the same

law. The administrative body exercises its quasi-judicial power

when it performs in a judicial manner an act which is
essentially of an executive or administrative nature, where the
power to act in such manner is incidental to or reasonably
necessary for the performance of the executive or
administrative duty entrusted to it. In carrying out their quasijudicial functions the administrative officers or bodies are
required to investigate facts or ascertain the existence of facts,
hold hearings, weigh evidence, and draw conclusions from
them as basis for their official action and exercise of discretion
in a judicial nature. Since rights of specific persons are
affected, it is elementary that in the proper exercise of quasijudicial power due process must be observed in the conduct of
the proceedings. [Emphasis ours.]
The Creation of Task Force Maguindanao was impelled by the
allegations of fraud and irregularities attending the conduct of
elections in the province of Maguindanao and the nontransmittal of the canvassing documents for all municipalities of
said province.
Task Force Maguindanaos fact-finding investigation to probe
into the veracity of the alleged fraud that marred the elections
in said province; and consequently, to determine whether the
certificates of canvass were genuine or spurious, and whether
an election offense had possibly been committed could by no
means be classified as a purely ministerial or administrative
function.
The COMELEC, through the Task Force Maguindanao, was
exercising its quasi-judicial power in pursuit of the truth behind
the allegations of massive fraud during the elections in
Maguindanao. To achieve its objective, the Task Force
conducted hearings and required the attendance of the parties
concerned and their counsels to give them the opportunity to
argue and support their respective positions.
The effectiveness of the quasijudicial power vested by law on
a government institution hinges on its authority to compel
attendance of the parties and/or their witnesses at the hearings
or proceedings. As enunciated in Arnault v. Nazareno9
Experience has shown that mere requests for such information
are often unavailing, and also that information which is
volunteered is not always accurate or complete; so some
means of compulsion is essential to obtain what is needed.
In the same vein, to withhold from the COMELEC the power to
punish individuals who refuse to appear during a fact-finding
investigation, despite a previous notice and order to attend,
would render nugatory the COMELECs investigative power,
which is an essential incident to its constitutional mandate to
secure the conduct of honest and credible elections. In this
case, the purpose of the investigation was however derailed
when petitioner obstinately refused to appear during said
hearings and to answer questions regarding the various
election documents which, he claimed, were stolen while they
were in his possession and custody. Undoubtedly, the
COMELEC could punish petitioner for such contumacious
refusal to attend the Task Force hearings.
Even assuming arguendo that the COMELEC was acting as a
board of canvassers at that time it required petitioner to appear
before it, the Court had the occasion to rule that the powers of
the board of canvassers are not purely ministerial. The board

25

exercises quasi-judicial functions, such as the function and

duty to determine whether the papers transmitted to them are
genuine election returns signed by the proper officers.10 When
the results of the elections in the province of Maguindanao
were being canvassed, counsels for various candidates posited
numerous questions on the certificates of canvass brought
before the COMELEC. The COMELEC asked petitioner to
appear before it in order to shed light on the issue of whether
the election documents coming from Maguindanao were
spurious or not. When petitioner unjustifiably refused to appear,
COMELEC undeniably acted within the bounds of its
jurisdiction when it issued the assailed resolutions.

(c) Any abuse of or any inlawful interference with the process

or proceedings of the Commission or any of its Divisions not
constituting direct contempt under Section 1 of this Rules;
(d) Any improper conduct tending, directly or indirectly, to
impede, obstruct, or degrade the administration of justice by
the Commission or any of its Divisions;
(e) Assuming to be an attorney and acting as such without
authority; and
(f) Failure to obey a subpoena duly served.

In Santiago, Jr. v. Bautista,11 the Court held:

xxx. The exercise of judicial functions may involve the
performance of legislative or administrative duties, and the
performance of and administrative or ministerial duties, may, in
a measure, involve the exercise of judicial functions. It may be
said generally that the exercise of judicial functions is to
determine what the law is, and what the legal rights of parties
are, with respect to a matter in controversy; and whenever an
officer is clothed with that authority, and undertakes to
determine those questions, he acts judicially.
On the procedure adopted by the COMELEC in proceeding
with the indirect contempt charges against petitioner, Section
52 (e), Article VII of the Omnibus Election Code pertinently
provides:
Section 52. Powers and functions of the Commission on
Elections.
xxx
(e) Punish contempts provided for in the Rules of Court in the
same procedure and with the same penalties provided therin.
Any violation of any final and executory decision, order or
ruling of the Commission shall constitute contempt thereof.
[Emphasis ours.]
The aforecited provision of law is implemented by Rule 29 of
COMELECs Rules of Procedure, Section 2 of which states:
Rule 29 Contempt
Sec. 1. xxx
Sec. 2. Indirect Contempt. After charge in writing has been
filed with the Commission or Division, as the case may be, and
an opportunity given to the respondent to be heard by himself
or counsel, a person guilty of the following acts may be
punished for indirect contempt:
(a) Misbehavior of the responsible officer of the Commission in
the performance of his official duties or in his official
transactions;
(b) Disobedience of or resistance to a lawful writ, process,
order, judgment or command of the Commission or any of its
Divisions, or injunction or restraining order granted by it;

SEC. 3 Penalty for Indirect Contempt. If adjudged guilty, the

accused may be punished by a fine not exceeding one
thousand (P1,000.00) pesos or imprisonment for not more than
six (6) months, or both, at the discretion of the Commission or
Division.
The language of the Omnibus Election Code and the
COMELEC Rules of Procedure is broad enough to allow the
initiation of indirect contempt proceedings by the COMELEC
motu proprio. Furthermore, the above-quoted provision of
Section 52(e), Article VII of the Omnibus Election Code
explicitly adopts the procedure and penalties provided by the
Rules of Court. Under Section 4, Rule 71, said proceedings
may be initiated motu proprio by the COMELEC, viz:
SEC. 4. How proceedings commenced. Proceedings for
indirect contempt may be initiated motu proprio by the court
against which the contempt was committed by an order or any
other formal charge requiring the respondent to show cause
why he should not be punished for contempt.
In all other cases, charges for indirect contempt shall be
commenced by a verified petition with supporting particulars
and certified true copies of documents or papers involved
therein, and upon full compliance with the requirements for
filing initiatory pleadings for civil actions in the court concerned.
If the contempt charges arose out of or are related to a
principal action pending in the court, the petition for contempt
shall allege that fact but said petition shall be docketed, heard
and decided separately, unless the court in its discretion orders
the consolidation of the contempt charge and the principal
action for joint hearing and decision.
Hence, the COMELEC properly assumed jurisdiction over the
indirect contempt proceedings which were initiated by its Task
Force Maguindanao, through a Contempt Charge and Show
Cause Order, notwithstanding the absence of any complaint
filed by a private party.
We turn now to petitioners claim that the COMELEC prejudged the case against him, and that its findings were not
supported by evidence. His claim deserves scant
consideration.
The fact that the indirect contempt charges against petitioner
were initiated motu proprio by the COMELEC did not by itself
prove that it had already prejudged the case against him. As
borne out by the records, the COMELEC gave petitioner
several opportunities to explain his side and to present
evidence to defend himself. All of petitioners belatedly filed
pleadings were admitted and taken into consideration before

26

the COMELEC issued the assailed Resolution finding petitioner

guilty of indirect contempt.
The COMELEC complied with the aforementioned Section 4,
Rule 71 of the Rules of Court and with the requirements set by
Rule 29 of the COMELEC Rules of Procedure, when it issued
the Contempt Charge and Show Cause Order against
petitioner directing him to appear before it and explain why he
should not be held in contempt.
Petitioner claims that the challenged Resolution finding him
guilty of indirect contempt was based merely on hearsay,
surmises, speculations and conjectures, and not on competent
and substantial evidence. He contends that there is no
convincing evidence that he deliberately refused to heed the
summonses of the COMELEC or that he was sufficiently
notified of the investigative hearings. He further argues that the
loss of the election documents should not even be
automatically ascribed to him.
We are not persuaded.
Petitioner was found guilty of contempt on four (4) grounds.
First, he repeatedly failed to attend, despite notice of the
scheduled12 canvassing of the Provincial Certificates of
Canvass, the hearing of the Task Force Maguindanao; and
refused to submit his explanation for such absences, which he
had undertaken to submit, in violation of paragraphs (b) and (f)
of Section 2, Rule 29 of the COMELEC Rules of Procedure.
Petitioner was duly notified of the scheduled hearings. It was
his official responsibility to be present during the scheduled
hearing to shed light on the allegedly stolen election
documents but he failed to do so without offering any valid
justification for his non-appearance.
Second, he unlawfully assumed custody of accountable
election documents, which were lost while in his possession,
and consequently failed to deliver the same, in violation of
paragraphs (a), (c) and (d) Section 2, Rule 29 of same Rules.
Petitioner admitted that the subject certificate of canvass and
other election documents were lost while in his custody.
Petitioner himself admitted during the hearing held on June 11,
2007 that the documents were stolen sometime on May 29,
2007. Apart from the said loss of the vital election documents,
his liability stemmed from the fact that he illegally retained
custody and possession of said documents more than two
weeks after the elections. The COMELEC viewed such act as
a contemptuous interference with its normal functions.
Third and fourth, he publicly displayed disrespect for the
authority of the COMELEC through the media (interviews on
national television channels, and in newspapers and radios) by
flaunting an armory of long firearms and side arms in public,
and posing for the front page of a national broadsheet, with a
shiny pistol tucked in a holster, in violation of paragraphs (a)
and (d), Section 2, Rule 29 of same Rules.

True, there were instances when the Court rejected newspaper

articles as hearsay, when such articles are offered to prove
their contents without any other competent and credible
evidence to corroborate them. However, in Estrada v. Desierto,
et al.,13 the Court held that not all hearsay evidence is
inadmissible and how over time, exceptions to the hearsay rule
have emerged. Hearsay evidence may be admitted by the
courts on grounds of "relevance, trustworthiness and
necessity."14 When certain facts are within judicial notice of the
Court, newspaper accounts "only buttressed these facts as
facts."15
Another exception to the hearsay rule is the doctrine of
independently relevant statements, where only the fact that
such statements were made is relevant, and the truth or falsity
thereof is immaterial. The hearsay rule does not apply; hence,
the statements are admissible as evidence. Evidence as to the
making of such statement is not secondary but primary, for the
statement itself may constitute a fact in issue or be
circumstantially relevant as to the existence of such a fact.16
Here, the newspaper clippings were introduced to prove that
petitioner deliberately defied or challenged the authority of the
COMELEC. As ratiocinated by the COMELEC in the
challenged Resolution of August 7, 2007, it was not the mere
content of the articles that was in issue, but petitioners
conduct when he allowed himself to be interviewed in the
manner and circumstances, adverted to in the COMELEC
Resolution, on a pending controversy which was still brewing in
the COMELEC. While petitioner claimed that he was
misquoted, he denied neither the said interview nor his picture
splashed on the newspaper with a firearm holstered at his side
but simply relied on his objection to the hearsay nature of the
newspaper clippings. It should be stressed that petitioner was
no ordinary witness or respondent. He was under the
administrative supervision of the COMELEC17 and it was
incumbent upon him to demonstrate to the COMELEC that he
had faithfully discharged his duties as dictated by law. His
evasiveness and refusal to present his evidence as well as his
reliance on technicalities to justify such refusal in the face of
the allegations of fraud or anomalies and newspaper
publication mentioned to the Contempt Charge and Show
Cause Order amounted to an implied admission of the charges
leveled against him.
All told, petitioner brought this predicament upon himself when
he opted to dispense with the presentation of his evidence
during the scheduled hearings and to explain his nonappearance at the hearings of Task Force Maguindanao and
the loss of the certificates of canvass and other election
documents.
WHEREFORE, the petition is hereby DISMISSED and the
prayer for a Temporary Restraining Order and/or a Writ of
Preliminary Injunction is hereby DENIED. No costs.
SO ORDERED.

Petitioner questions the probative value of the newspaper

clippings published in the Philippine Daily Inquirer on June 26,
2007 which showed a photo of him with a firearm tucked to his
side and his supposed exclusive interview. He claims that said
newspaper clippings are mere hearsay, which are of no
evidentiary value.

27

G.R. No. 163217

April 18, 2006

CELESTINO
MARTURILLAS,
Petitioner
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PANGANIBAN, CJ:
Well-rooted is the principle that factual findings of trial courts,
especially when affirmed by the appellate court, are generally
binding on the Supreme Court. In convicting the accused in the
present case, the Court not merely relied on this doctrine, but
also meticulously reviewed the evidence on record. It has
come to the inevitable conclusion that petitioner is indeed guilty
beyond reasonable doubt of the crime charged.
The Case
Before us is a Petition for Review1 under Rule 45 of the Rules
of Court, seeking to set aside the November 28, 2003
Decision2 and the March 10, 2004 Resolution 3 of the Court of
Appeals (CA) in CA-GR CR No. 25401. The CA affirmed, with
modifications as to the award of damages, the Decision 4 of
Branch 10 of the Regional Trial Court (RTC) of Davao City. The
RTC had found Celestino Marturillas guilty of homicide in
Criminal Case No. 42091-98. The assailed CA Decision
disposed as follows:
"WHEREFORE, subject to the modification thus indicated, the
judgment appealed from must be, as it hereby is, AFFIRMED.
With the costs of this instance to be assessed against the
accused-appellant."5
The challenged CA Resolution denied petitioners Motion for
Reconsideration.6
Petitioner was charged with homicide in an Information 7 dated
November 5, 1998, worded as follows:
"[T]hat on or about November 4 1998, in the City of Davao,
Philippines, and within the jurisdiction of this Honorable Court,
the above-mentioned accused, armed with a gun, and with
intent to kill, wilfully, unlawfully and feloniously shot one
Artemio Pantinople, thereby inflicting fatal wound upon the
latter which caused his death."8
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) summarized the
Peoples version of the facts:
"4. The prosecution presented Lito Santos, Ernita Pantinople,
PO2 Mariano Operario, Alicia Pantinople and Dr. Danilo
Ledesma as its witnesses from whose testimonies, the
following facts were established.
"Lito Santos, a forty-three-year old farmer and resident of
Barangay Gatungan, Bunawan District, Davao City, testified

28

that about 6:00 oclock in the afternoon of November 4, 1998,

he saw his neighbor and kumpare Artemio Pantinople arrive
on board a jeepney from Bunawan, Davao City. Artemio was
carrying a truck battery, some corn bran and rice. They talked
for a while concerning their livelihood afterwhich, Artemio
proceeded to connect the battery to the fluorescent lamps in
his store. Artemios store was located about five (5) meters
away from Litos house.

"Ernita saw appellant carrying with him a long firearm which

looked like an M-14 rifle. Ernita also sensed that appellant had
some companions with him because she heard the crackling
sound of the dried leaves around the place. Ernita had a clear
view of appellant at that time because their place was wellillumined by the full moon that night and by the two (2)
fluorescent lamps in their store which were switched on at the
time of the incident.

"After installing the battery to the fluorescent lamps, Artemio

sat for a while on a bench located in front of his store. Then,
Cecilia Santos, Litos wife, called him and Artemio for supper.
Artemio obliged. Lito, opting to eat later, served Artemio and
Cecilia the food. After eating, Artemio returned to the bench
and sat on it again together with his tree (3) children, namely:
Janice, Saysay and Pitpit.

"Ernita immediately went out of their house and ran towards

Artemio. Artemio tried to speak to her but he could not do so
because his mouth was full of blood. Upon seeing the pitiful
sight of her husband, Ernita shouted several times, Kapitan,
ngano nimo gipatay and akong bana. She also repeatedly
called her neighbors for help but only Lito Santos, Eufemio
Antenero, Norman Libre and some residents of Poblacion
Gatungan responded to her calls and approached them. She
noted that no member of the CFO and CAFGU came to help
them. Also, no barangay tanod came to offer them to help.

"Lito was eating supper in their kitchen when he heard a

gunshot. From a distance of about ten (10) meters, he also
noticed smoke and fire coming from the muzzle of a big gun.
Moments later, he saw Artemio clasping his chest and
staggering backwards to the direction of his (Litos) kitchen.
Artemio shouted to him, Tabangi ko Pre, gipusil ko ni kapitan,
meaning Help me, Pre, I was shot by the captain. However,
Lito did not approach Artemio right after the shooting incident
because Cecilia warned him that he might also be shot.
"Lito did not see the person who shot Artemio because his
attention was then focused on Artemio.
"Shortly, Lito saw Ernita Pantinople, the wife of Artemio,
coming from her house towards the direction where Artemio
was sprawled on the ground. Ernita was hysterical, jumping
and shouting, Kapitan, bakit mo binaril and aking asawa. She
also repeatedly cried for help.
"Lito then went out of their house and approached Artemio who
was lying dead near a banana trunk more than five (5) meters
from his house. Some of their neighbors, namely: Antenero,
Loloy Libre and Lapis answered Ernitas call for help and
approached them.
"When the shooting incident happened about 7:30 in the
evening of November 4, 1998, Litos house was illumined by a
lamp. Their kitchen has no walls. It is an open-type kitchen
giving him an unobstructed view of Artemio who was about five
(5) meters away from where he was positioned at that time.
Although there was a gemilina tree growing in the space in
between his house and the store of Artemio, the same did not
block his view of Artemio. Likewise, the coconut trees and
young banana plants growing at the scene of the crime did not
affect his view.
"At the same instance, Ernita was also in their kitchen
preparing milk for her baby. Her baby was then lying on the
floor of their kitchen. When she was about to put the bottle into
the babys mouth, she suddenly heard the sound of a gunburst
followed by a shout, Help me Pre, I was shot by the captain.
She immediately pushed open the window of their kitchen and
saw appellant wearing a black jacket and camouflage pants
running towards the direction of the back portion of Litos
house. From there, appellant crossed the street and
disappeared.

"While waiting for the police, Ernita did not allow Artemios
body to be touched by anybody. After more than two (2) hours,
the police arrived, together with a photographer by the name of
Fe Mendez of Bunawan District, Davao City who took pictures
of the crime scene.
"PO2 Mariano Operario, Investigation Officer of the
Investigation Section of the Bunawan Police Station, Philippine
National Police, Davao City, testified that about 9:05 in the
evening of November 4, 1998, he received a report of an
alleged shooting incident at Barangay Gatungan, Bunawan
District in Davao City. Together with SPO1 Rodel C. Estrellan
and a member of the mobile police patrol on board their mobile
car, PO2 Operario proceeded immediately to the crime scene.
They reached the crime scene about 10:00 oclock in the
evening of the same date. They found the lifeless body of
Artemio sprawled on the ground. Ernita and Lito then
approached PO2 Operario and informed him that appellant
was the one responsible for the shooting.
"PO2 Operario stayed at the crime scene for about one (1)
hour and waited for the funeral vehicle to pick up the body of
Artemio. When the funeral hearse arrived, PO2 Operario told
the crew to load Artemios body into the vehicle. Thereafter, he
then boarded again their mobile car together with Lito Santos.
"Armed with the information that appellant was the one
responsible for the shooting of Artemio, PO2 Operario
proceeded to the house of appellant and informed him that he
was a suspect in the killing of Artemio. He then invited
appellant to go with him to the police station and also to bring
along with him his M-14 rifle. Appellant did not say anything.
He just got his M-14 rifle and went with the police to the police
station where he was detained the whole night of November 4,
1998. Appellant did not also give any statement to anybody
about the incident. The following day, appellant was transferred
by the police to Tibungco Police Station where he was
detained.
"Alicia Pantinople, the 44-year old sister of Artemio, testified
that on the night of November 4, 1998, she was at home
watching television. She heard a gunshot but did not mind it
because she was already used to hearing the sound of guns
fired indiscriminately in their place.

29

"After a few minutes, Junjun, a child and resident of Sitio

Centro, Barangay Gatungan, Bunawan District, Davao City
came knocking at their door. Junjun informed them that: Yoyo,
Uncle Titing was shot, referring to Artemio.
"Upon hearing the report, Alicia looked for some money
thinking that it might be needed for Artemios hospitalization
because she expected Artemio to be still alive. Artemios two
(2) children, namely: Jonel and Genesis who were staying with
her hurriedly left. She then ran to the place where her brother
was shot and found Artemios dead body on the ground
surrounded by his four (4) children.
"At the Bunawan Police Station, Alicia was informed by the
police that appellant was at Tibungco Police Station. She sent
her male cousin to proceed to Tibungco Police Station to find
out if appellant was indeed in the said place. However, her
cousin immediately returned and informed her that appellant
was not in Tibungco Police Station. She then went around the
Bunawan Police Station and noticed a locked door. When she
peeped through the hole of the said door, she saw appellant
reclining on a bench about two and a half (2 ) meters away
from the door. Appellants left leg was on top of the bench while
his right leg was on the ground. Appellant was wearing a brown
shirt, black jacket and a pair of camouflage pants. He was also
wearing brown shoes but he had no socks on his feet.
"At the police station, Alicia confronted appellant: Nong Listing
I know that you can recognize my voice. It is me. Why did you
kill my brother? What has he done wrong to you?
"Appellant did not answer her. Nevertheless, she was sure that
appellant was awake because he was tapping the floor with his
right foot.
"Dr. Danilo Ledesma, a medico-legal officer of the Davao City
Health Department, conducted an autopsy on Artemios
cadaver about 9:30 in the morning of November 5, 1998 at the
Rivera Funeral Homes located at Licanan, Lasang. His findings
are summarized in his Necropsy Report No. 76:
POSTMORTEM FINDINGS
Pallor, marked generalized.
Body in rigor mortis.
Wound, gunshot, ENTRANCE, 0.9 x 0.8 cm. Ovaloid
located at the anterior chestwall, rightside, 1.0 cm;
from the anterior median line, at the level of the third
(3rd) intercoastal space and 131.0 cms. above the
right heel, directed backwards, upwards, medially
crossing the midline from the right to left, involving the
soft tissues, perforating the body of the sternum, into
the pericardial cavity, perforating the heart into the left
thoracic cavity, perforating the heart into the left
thoracic cavity, perforating the upper lobe of the left
lung, forming an irregular EXIT, 1.5 x 1.1 cms. at the
posterior chest wall left side, 13.0 cms. from the
posterior median line and 139.0 cms. above the left
heel.
Hemopericadium, 300 ml.

Hemothorax, left, 1,000 ml.

Stomach, filled with partially digested food particles.
Other visceral organs, pale.
CAUSE OF DEATH: Gunshot wound of the chest.
Signed
by:
DANILO
Medico-Legal Officer IV

P.

LEDESMA

"During the trial, Dr. Ledesma explained that Artemio died of a

gunshot wound, 0.9 x 0.8 centimeters in size located about one
(1) inch away from the centerline of Artemios Adams apple
down to his navel and about 1:00 oclock from his right nipple.
"The trajectory of the bullet passing through Artemios body
indicates that his assailant was in a lower position than Artemio
when the gun was fired. Dr. Ledesma also found the wound of
Artemio negative of powder burns indicating that the assailant
was at a distance of more than twenty-four (24) inches when
he fired his gun at Artemio. He did not also find any bullet slug
inside the body of Artemio indicating that the bullet went
through Artemios body. Artemios heart and lungs were
lacerated and his stomach contained partially digested food
particles indicating that he had just eaten his meal when he
was shot.
"In the certificate of death of Artemio, Dr. Ledesma indicated
that the cause of his death was a gunshot wound on the chest.
"5. After the defense presented its evidence, the case was
submitted for decision."9
Version of the Defense
On the other hand, petitioner presented the following statement
of facts:
"9. This is a criminal case for Homicide originally lodged before
the Regional Trial Court, Branch 10 of Davao City against
herein Petitioner Celestino Marturillas, former Barangay
Captain of Gatungan, Bunawan District[,] Davao City and
docketed as Criminal Case No. 42,091-98. The criminal charge
against Petitioner was the result of a shooting incident in
Barangay Gatungan, Bunawan District, Davao City which
resulted in the slaying of Artemio Pantinople while the latter
was on his way home in the evening of November 4, 1998.
"10. On that same evening at around 8:30 p.m. herein
Petitioner former Barangay Captain Celestino Marturillas was
roused from his sleep at his house in Barangay Gatungan,
Bunawan District, Davao City by his wife since Kagawads
Jimmy Balugo and Norman Libre (Barangay Kagawads of
Gatungan, Bunawan District, Davao City) wanted to see him.
Dazed after just having risen from bed, Petitioner was rubbing
his eyes when he met the two Kagawads inside his house. He
was informed that a resident of his barangay, Artemio
Pantinople, had just been shot. Petitioner at once ordered his
Kagawads to assemble the members of the SCAA (Special
Civilian Armed [Auxiliary]) so that they could be escorted to the
crime scene some 250 meters away. As soon as the SCAAs
were contacted, they (Petitioner, Kagawads Libre and Balugo
including Wiliam Gabas, Eddie Loyahan and Junior Marturillas

30

- the last three being SCAA members) then proceeded to the

crime scene to determine what assistance they could render.

Gatungan was allegedly shot to death by unidentified armed

man at the aforementioned barangay. x x x.

"11. While approaching the store owned by the Pantinoples

and not very far from where the deceased lay sprawled,
Petitioner was met by Ernita Pantinople (wife of the deceasedArtemio Pantinople) who was very mad and belligerent. She
immediately accused Petitioner of having shot her husband
instead of Lito Santos who was his enemy. Petitioner was
taken aback by the instant accusation against him. He
explained that he just came from his house where he was
roused by his Kagawads from his sleep. Not being able to talk
sense with Ernita Pantinople, Petitioner and his companions
backed off to avoid a heated confrontation. Petitioner instead
decided to go back to his house along with his companions.

"16. On November 5, 1998 at around 7:15 a.m. PO2 Mariano

Operario indorsed with the Bunawan PNP an empty shell fired
from a carbine rifle which was recovered by the said police
officer from the crime scene in the night of the incident. Owing
to his pre-occupation in organizing and preparing the affidavits
of the Complainant and her witnesses the previous evening, he
was only able to indorse the same the following morning. At the
same time, P/Chief Insp. Julito M. Diray, Station Commander of
the Bunawan PNP made a written request addressed to the
District Commander of the PNP Crime Laboratory requesting
that a paraffin test be conducted on Petitioner and that a
ballistics examination be made on the M-14 rifle which he
surrendered to Bunawan PNP.

"12. Upon reaching his house, Petitioner instructed Kagawad

Jimmy Balugo to contact the Bunawan Police Station and
inform them what transpired. Not knowing the radio frequency
of the local police, Kagawad Balugo instead radioed officials of
nearby Barangay San Isidro requesting them to contact the
Bunawan PNP for police assistance since someone was shot
in their locality.

"17. At around 9:30 a.m. of November 5, 1998, Dr. Danilo P.

Ledesma, M.D., Medico-Legal Officer for Davao City
conducted an autopsy on the cadaver of deceased and made
the following Post-Mortem Findings contained in Necropsy
Report No. 76 dated November 6, 1998, viz:
Pallor, marked, generalized

"13. Moments later, PO2 Mariano Operario and another police

officer arrived at the house of Petitioner and when confronted
by the latter, he was informed by PO2 Operario that he was the
principal suspect in the slaying of Artemio Pantinople. Upon
their invitation, Petitioner immediately went with the said police
officers for questioning at the Bunawan Police Station. He also
took with him his government-issued M-14 Rifle and one
magazine of live M-14 ammunition which Petitioner turned over
for safe keeping with the Bunawan PNP. The police blotter
showed that Petitioner surrendered his M-14 rifle with live
ammunition to SPO1 Estrellan and PO3 Sendrijas of the
Bunawan PNP at around 10:45 p.m. of November 4, 1998.
"14. When the shooting incident was first recorded in the Daily
Record of Events of the Bunawan PNP it was indicated therein
that deceased may have been shot by unidentified armed men
viz:

Body in rigor mortis

Wound, gunshot, ENTRANCE, 0.9-0.8 cm. ovaloid located at
the anterior chest wall, right side, .0 cm. from the anterior
median line, at the level of the third (3rd) intercostal space and
131.0 cms. above the right neck, directed backwards, upwards,
medially, crossing the midline from the right to left, involving the
soft tissues, perforating the body of the sternum into the
pericardial cavity, perforating the heart into the left thoracic
cavity, perforating the upper lobe of the left lung forming an
irregular EXIT, 1.5x1.1 cms. at the posterior chest wall, left
side, 13.0 cms. from the posterior median line and 139.0 cms.
above the left neck.
Hemopericadium, 300 ml.

Entry No. Date Time Incident/Events

Hemothorax, left 1,000 ml.

2289 110498 2105H SHOOTING INCIDENT-

Stomach filled with partially digested food particles.

One Dominador Lopez 43 years old, married, farmer and a

resident of Puro[k] 5, Barangay Gatungan, Davao City
appeared at this Precinct and reported that shortly before this
writing, one ARTEMIO PANTINOPLE, former barangay
kagawad of Barangay Gatungan was allegedly shot to death by
an unidentified armed men at the aforementioned Barangay. x
x x.

Other visceral organs, pale

"15. The extract from the police blotter prepared by SPO2

Dario B. Undo dated November 9, 1998 already had a little
modification indicating therein that deceased was shot by an
unidentified armed man and the following entry was made.
2105H: Shooting Incident: One Dominador Lopez, 43 years
old, married, farmer and a resident of Purok 5, Barangay
Gatungan Bunawan District, Davao City appeared at this
Police Precinct and reported that prior to these writing, one
Artemio Pantinople, former Barangay Kagawad of Barangay

CAUSE OF DEATH: Gunshot wound of the chest.

"18. After the fatal shooting of deceased, Celestino Marturillas
was subjected to paraffin testing by the PNP Crime Laboratory
in Davao City at 10:30 a.m. November 5, 1998. The next day,
November 6, 1998, the PNP Crime Laboratory released
Physical Sciences Report No. C-074-98 regarding the paraffin
test results which found Petitioner NEGATIVE for gunpowder
nitrates based on the following findings of the PNP Crime
Laboratory:
FINDINGS:
Qualitative examination conducted on the above-mentioned
specimen gave NEGATIVE result to the test for the presence of
gunpowder nitrates. x x x

31

CONCLUSION:
Both hands of Celestino Marturillas do not contain gunpowder
nitrates[.]
"19. After preparing all the affidavits of Ernita Pantinople and
her witnesses PO2 Mariano R. Operario Jr., the police officer
as[s]igned to investigate the shooting of the deceased,
prepared and transmitted, on November 5, 1998, a Complaint
to the City Prosecution Office recommending that Petitioner be
indicted for Murder, attaching therewith the Sworn Affidavits of
Ernita O. Pantinople (Complainant), Lito D. Santos (witness)
and the Sworn Joint Affidavit of SPO1 Rodel Estrellan and PO2
Mariano R. Operario Jr. of the PNP.

eating I stood up then got a glass of water and at that time I

heard one gun shot burst estimated to more or less ten (10)
meters from my possession then followed somebody shouting
seeking for help in Visayan words tabangi ko pre gipusil ko ni
Kapitan;
That I really saw the victim moving backward to more or less
five (5) meters away from where he was shot then and there
the victim slumped at the grassy area;
That I immediately go out from my house and proceeded to
the victims body, wherein, when I came nearer I found and
identified the victim one Artemio Pantinople who was my
nearby neighbor sprawled on his own blood at the grassy area;

"20. The following is the Affidavit-Complaint of Ernita

Pantinople as well as the supporting affidavits of her witnesses
all of which are quoted in full hereunder:

That no other person named by the victim other than Brgy.

Capt. Celestino Marturillas of Brgy. Gatungan, Bunawan
District, Davao City;

Ernita Pantinoples Affidavit-Complaint dated November 5,

1998:

That I am executing this affidavit to apprised the authorities

concern of the true facts and circumstances that surrounds the
incident.

That last November 4, 1998 at about 7:30 in the evening, I

was attending and caring my baby boy at that time to let him
sleep and that moment I heard first one gun shot burst after
then somebody shouting seeking for help in Visayan words
tabangi ko Pre gipusil ko ni Kapitan I estimated a distance to
more or less ten (10) meters away from my house;
That I immediately peep at the windows, wherein I very saw a
person of Brgy. Capt. Celestino Marturillas of Brgy. Gatungan,
Bunawan District, Davao City, wearing black jacket and
camouflage pants carrying his M-14 rifle running to the
direction to the left side portion of the house of Lito Santos who
was my neighbor respectively;

"21. Based on the Affidavits executed by Ernita Pantinople and

Lito Santos, then 2nd Asst. City Prosecutor Raul B. Bendigo
issued a Resolution on November 5, 1998 finding sufficient
evidence to indict Appellant for the crime of Homicide and not
Murder as alleged in Private Complainants Affidavit Complaint.
The Information states:
Above-mentioned Accused, armed with a gun, and with intent
to kill, willfully, unlawfully and feloniously shot one Artemio
Pantinople, thereby inflicting fatal wound upon the latter which
caused his death.
CONTRARY TO LAW.

That I hurriedly go down from my house and proceeded to the

victims body, wherein when I came nearer I got surprised for
the victim was my beloved husband;
That I was always shouting in visayan words kapitan nganong
imo mang gipatay and akong bana;
That I let my husband body still at that placed until the police
officers will arrived and investigate the incident;
That I know personally Brgy. Capt. Celestino Marturillas for he
is my nearby neighbor at that placed;
That I am executing this affidavit to apprise the authorities
concern of the truthfulness of the foregoing and my desire to
file necessary charges against Celestino Marturillas.
Witness-Affidavit of Lito Santos dated November 5, 1998
reads:
I, LITO D. SANTOS, 43 yrs. old, married, farmer, a resident of
Purok 5, Brgy. Gatungan, Bunawan District, Davao City after
having been duly sworn to in accordance with law do hereby
depose and say:
That last November 4, 1998 at about 7:30 in the evening I was
taking my dinner at the kitchen of my house and after finished

xxxxxxxxx
"23. The theory of the Defense was anchored on the testimony
of the following individuals:
23.1 Jimmy Balugo, was one of the Barangay Kagawads who
went to the house of Petitioner after receiving a radio message
from Brgy. Kagawad Glenda Lascua that a shooting incident
took place in their barangay. He also testified that together with
Kagawad Norberto Libre, he proceeded to the house of
Petitioner to inform him of the shooting incident involving a
certain Artemio Titing Pantinople. After informing Petitioner
about what happened, the latter instructed him and Norberto
Libre to gather the SCAAs and to accompany them to the
crime scene. He also narrated to the court that Petitioner and
their group were not able to render any assistance at the crime
scene since the widow and the relatives of deceased were
already belligerent. As a result of which, the group of Petitioner
including himself, went back to the formers house where he
asked Petitioner if it would be alright to contact the police and
request for assistance. He claimed that he was able to contact
the Bunawan PNP with the help of the Barangay Police of
Barangay San Isidro.
23.2) Norberto Libre testified that in the evening of November
4, 1998, he heard a gunburst which resembled a firecracker
and after a few minutes Barangay Kagawad Jimmy Balugo

32

went to his house and informed him that their neighbor Titing
Pantinople was shot. Kagawad Balugo requested him to
accompany the former to go to the house of then Barangay
Captain Celestino Marturillas; that he and Kagawad Balugo
proceeded to the house of Petitioner and shouted to awaken
the latter; that Barangay Captain Marturillas went out rubbing
his eyes awakened from his sleep and was informed of the
killing of Artemio Pantinople; that Petitioner immediately
instructed them to fetch the SCAA and thereafter their group
went to the crime scene.
23.3) Ronito Bedero testified that he was in his house on the
night Artemio Pantinop[l]e was shot. The material point raised
by this witness in his testimony was the fact that he saw an
unidentified armed man flee from the crime scene who later
joined two other armed men near a nangka tree not far from
where deceased was shot. All three later fled on foot towards
the direction of the Purok Center in Barangay Gatungan. This
witness noticed that one of the three men was armed with a
rifle but could not make out their identities since the area where
the three men converged was a very dark place. After the three
men disappeared, he saw from the opposite direction
Petitioner, Barangay Kagawad Jimmy Balugo and three (3)
SCAA members going to the scene of the crime but they did
not reach the crime scene. A little later, he saw the group of
Petitioner return to where they came from.
23.4) Police C/Insp. Noemi Austero, Forensic Chemist of the
PNP Crime Laboratory, testified that she conducted a paraffin
test on both hands of Petitioner on November 5, 1999 at
around 10:30 a.m. She also testified that Petitioner tested
NEGATIVE for gunpowder nitrates indicating that he never
fired a weapon at any time between 7:30 p.m. of November 4,
1999 until the next day, November 5, 1999. She also testified
that as a matter of procedure at the PNP Crime Laboratory,
they do not conduct paraffin testing on a crime suspect seventy
two (72) hours after an alleged shooting incident. She also
testified that based on her experience she is not aware of any
chemical that could extract gunpowder nitrates from the hands
of a person who had just fired his weapon.
23.5) Dominador Lapiz testified that he lived on the land of the
victim, Artemio Pantinople for ten (10) years. He was one of the
first persons who went to the crime scene where he personally
saw the body of deceased lying at a very dark portion some
distance from the victims house and that those with him at that
time even had to light the place with a lamp so that they could
clearly see the deceased. He also testified that there were
many coconut and other trees and bananas in the crime scene.
He also testified that the house of Lito Santos was only about
four (4) meters from the crime scene, while the house of victimArtemio Pantinople was about FIFTY (50) meters away. He
testified that there was no lighted fluorescent at the store of
deceased at the time of the shooting. He was also the one who
informed Kagawad Glenda Lascuna about the shooting of
Artemio Pantinople. His testimony also revealed that when the
responding policemen arrived, Lito Santos immediately
approached the policemen, volunteered himself as a witness
and even declared that he would testify that it was Petitioner
who shot Artemio Pantinople.
On cross-examination, this witness declared that the crime
scene was very dark and one cannot see the body of the victim
without light. On cross-examination, this witness also testified
that Lito Santos approached the service vehicle of the
responding policemen and volunteered to be a witness that

Petitioner was the assailant of the victim, Artemio Pantinople.

This witness further testified that immediately after he went to
the crime scene, the widow of the victim and the children were
merely shouting and crying and it was only after the policemen
arrived that the widow uttered in a loud voice, Kapitan
nganong gipatay mo and akong bana?
23.6) Celestino Marturillas, former Barangay Captain of
Barangay Gatungan, Bunawan District, Davao City testified
that he learned of Pantinoples killing two hours later through
information personally relayed to him by Kagawads Jimmy
Balugo and Norberto Libre. He intimated to the Court that he
did try to extend some assistance to the family of the deceased
but was prevented from so doing since the wife of deceased
herself and her relatives were already hostile with him when he
was about to approach the crime scene. He also testified that
he voluntarily went with the police officers who arrested him at
his residence on the same evening after the victim was shot.
He also turned over to police custody the M-14 rifle issued to
him and voluntarily submitted himself to paraffin testing a few
hours after he was taken in for questioning by the Bunawan
PNP. Petitioner, during the trial consistently maintained that he
is innocent of the charge against him."10
Ruling of the Court of Appeals
The CA affirmed the findings of the RTC that the guilt of
petitioner had been established beyond reasonable doubt.
According to the appellate court, he was positively identified as
the one running away from the crime scene immediately after
the gunshot. This fact, together with the declaration of the
victim himself that he had been shot by the captain, clearly
established the latters complicity in the crime.
No ill motive could be ascribed by the CA to the prosecution
witnesses. Thus, their positive, credible and unequivocal
testimonies were accepted as sufficient to establish the guilt of
petitioner beyond reasonable doubt.
On the other hand, the CA also rejected his defenses of denial
and alibi. It held that they were necessarily suspect, especially
when established by friends or relatives, and should thus be
subjected to the strictest scrutiny. At any rate, his alibi and
denial cannot prevail over the positive testimonies of the
prosecution witnesses found to be more credible.
The appellate court upheld petitioners conviction, as well as
the award of damages. In addition, it awarded actual damages
representing unearned income.
Hence, this Petition.11
The Issues
In his Memorandum, petitioner submits the following issues for
the Courts consideration:
"I
The Court of Appeals committed a reversible error when it gave
credence to the claim of the solicitor general that the
prosecutions witnesses positively identified petitioner as the
alleged triggerman

33

"II
The Court of Appeals was in serious error when it affirmed the
trial courts blunder in literally passing the blame on petitioner
for the lapses in the investigation conducted by the police
thereby shifting on him the burden of proving his innocence
"III
The Court of Appeals committed a serious and palpable error
when it failed to consider that the deceased was cut off by
death before he could convey a complete or sensible
communication to whoever heard such declaration assuming
there was any
"IV
Petit[i]oners alibi assumed significance considering that
evidence and testimonies of the prosecutions witnesses
arrayed against petitioner failed to prove that he was
responsible for the commission of the crime."12
In sum, petitioner raises two main issues: 1) whether the
prosecutions evidence is credible; and 2) whether it is
sufficient to convict him of homicide. Under the first main issue,
he questions the positive identification made by the
prosecution witnesses; the alleged inconsistencies between
their Affidavits and court testimonies; and the plausibility of the
allegation that the victim had uttered, "Tabangi ko pre, gipusil
ko ni kapitan" ("Help me pre, I was shot by the captain"), which
was considered by the two lower courts either as his dying
declaration or as part of res gestae.
Under the second main issue, petitioner contends that the
burden of proof was erroneously shifted to him; that there
should have been no finding of guilt because of the negative
results of the paraffin test; and that the prosecution miserably
failed to establish the type of gun used in the commission of
the crime.
The Courts Ruling
The Petition is unmeritorious.
First Main Issue:
Credibility of the Prosecution Evidence
According to petitioner, the charge of homicide should be
dismissed, because the inherent weakness of the prosecutions
case against him was revealed by the evidence presented. He
submits that any doubt as to who really perpetrated the crime
should be resolved in his favor.
We do not agree. This Court has judiciously reviewed the
findings and records of this case and finds no reversible error
in the CAs ruling affirming petitioners conviction for homicide.
Basic is the rule that this Court accords great weight and a high
degree of respect to factual findings of the trial court, especially
when affirmed by the CA, as in the present case. 13 Here, the
RTC was unequivocally upheld by the CA, which was clothed
with the power to review whether the trial courts conclusions

were in accord with the facts and the relevant laws. 14 Indeed,
the findings of the trial court are not to be disturbed on appeal,
unless it has overlooked or misinterpreted some facts or
circumstances of weight and substance.15 Although there are
recognized exceptions16 to the conclusiveness of the findings
of fact of the trial and the appellate courts, petitioner has not
convinced this Court of the existence of any.
Having laid that basic premise, the Court disposes seriatim the
arguments proffered by petitioner under the first main issue.
Positive Identification
Petitioner contends that it was inconceivable for Prosecution
Witness Ernita Pantinople -- the victims wife -- to have
identified him as the assassin. According to him, her house
was "a good fifty (50) meters away from the crime scene," 17
which was "enveloped in pitch darkness." 18 Because of the
alleged improbability, he insists that her testimony materially
contradicted her Affidavit. The Affidavit supposedly proved that
she had not recognized her husband from where she was
standing during the shooting. If she had failed to identify the
victim, petitioner asks, "how was it possible for her to conclude
that it was [p]etitioner whom she claims she saw fleeing from
the scene?"19
All these doubts raised by petitioner are sufficiently addressed
by the clear, direct and convincing testimony of the witness.
She positively identified him as the one "running away"
immediately after the sound of a gunshot. Certain that she had
seen him, she even described what he was wearing, the
firearm he was carrying, and the direction towards which he
was running. She also clarified that she had heard the
statement, "Help me pre, I was shot by the captain," uttered
after the shooting incident. Accepting her testimony, the CA
ruled thus:
"Ernitas testimony that she saw [petitioner] at the crime scene
is credible because the spot where Artemio was shot was only
30 meters away from her house. Undoubtedly, Ernita is familiar
with [petitioner], who is her neighbor, and a long-time barangay
captain of Barangay Gatungan, Bunawan District, Davao City
when the incident took place. Ernita was also able to see his
face while he was running away from the crime scene. The
identification of a person can be established through familiarity
with ones physical features. Once a person has gained
familiarity with one another, identification becomes quite an
easy task even from a considerable distance. Judicial notice
can also be taken of the fact that people in rural communities
generally know each other both by face and name, and can be
expected to know each others distinct and particular features
and characteristics."20
This holding confirms the findings of fact of the RTC. Settled is
the rule that on questions of the credibility of witnesses and the
veracity of their testimonies, findings of the trial court are given
the highest degree of respect.21 It was the trial court that had
the opportunity to observe the manner in which the witnesses
had testified; as well as their furtive glances, calmness, sighs,
and scant or full realization of their oaths. 22 It had the better
opportunity to observe them firsthand; and to note their
demeanor, conduct and attitude under grueling examination.23
Petitioner doubts whether Ernita could have accurately
identified him at the scene of the crime, considering that it was

34

dark at that time; that there were trees obstructing her view;
and that her house was fifty (50) meters away from where the
crime was committed.
These assertions are easily belied by the findings of the courts
below, as borne by the records. Ernita testified on the crime
scene conditions that had enabled her to make a positive
identification of petitioner. Her testimony was even
corroborated by other prosecution witnesses, who bolstered
the truth and veracity of those declarations. Consequently, the
CA ruled as follows:
"x x x Ernitas recognition of the assailant was made possible
by the lighted two fluorescent lamps in their store and by the
full moon. x x x. In corroboration, Lito testified that the place
where the shooting occurred was bright.

Inconsistency Between Affidavit and Testimony

Petitioner contends that the testimony of Ernita materially
contradicted her Affidavit. According to him, she said in her
testimony that she had immediately recognized her husband as
the victim of the shooting; but in her Affidavit she stated that it
was only when she had approached the body that she came to
know that he was the victim.
We find no inconsistency. Although Ernita stated in her
testimony that she had recognized the victim as her husband
through his voice, it cannot necessarily be inferred that she did
not see him. Although she recognized him as the victim, she
was still hoping that it was not really he. Thus, the statement in
her Affidavit that she was surprised to see that her husband
was the victim of the shooting.

"The trees and plants growing in between Ernitas house and

the place where Artemio was shot to death did not impede her
view of the assailant. To be sure, the prosecution presented
photographs of the scene of the crime and its immediate
vicinities. These photographs gave a clear picture of the place
where Artemio was shot. Admittedly, there are some trees and
plants growing in between the place where the house of Ernita
was located and the spot where Artemio was shot. Notably,
however, there is only one gemilina tree, some coconut trees
and young banana plants growing in the place where Artemio
was shot. The trees and banana plants have slender trunks
which could not have posed an obstacle to Ernitas view of the
crime scene from the kitchen window of her house especially
so that she was in an elevated position."24

To be sure, ex parte affidavits are usually incomplete, as these

are frequently prepared by administering officers and cast in
their language and understanding of what affiants have said. 31
Almost always, the latter would simply sign the documents
after being read to them. Basic is the rule that, taken ex parte,
affidavits are considered incomplete and often inaccurate.
They are products sometimes of partial suggestions and at
other times of want of suggestions and inquiries, without the
aid of which witnesses may be unable to recall the connected
circumstances necessary for accurate recollection.32

This Court has consistently held that -- given the proper

conditions -- the illumination produced by a kerosene lamp, a
flashlight, a wick lamp, moonlight, or starlight is considered
sufficient to allow the identification of persons. 25 In this case,
the full moon and the light coming from two fluorescent lamps
of a nearby store were sufficient to illumine the place where
petitioner was; and to enable the eyewitness to identify him as
the person who was present at the crime scene. Settled is the
rule that when conditions of visibility are favorable and the
witnesses do not appear to be biased, their assertion as to the
identity of the malefactor should normally be accepted.26

"x x x. They referred only to that point wherein Ernita x x x

ascertained the identity of Artemio as the victim. They did not
relate to Ernitas identification of [petitioner] as the person
running away from the crime scene immediately after she
heard a gunshot."33

But even where the circumstances were less favorable, the

familiarity of Ernita with the face of petitioner considerably
reduced any error in her identification of him. 27 Since the
circumstances in this case were reasonably sufficient for the
identification of persons, this fact of her familiarity with him
erases any doubt that she could have erred in identifying him.
Those related to the victim of a crime have a natural tendency
to remember the faces of those involved in it. These relatives,
more than anybody else, would be concerned with seeking
justice for the victim and bringing the malefactor before the
law.28
Neither was there any indication that Ernita was impelled by ill
motives in positively identifying petitioner. The CA was correct
in observing that it would be "unnatural for a relative who is
interested in vindicating the crime to accuse somebody else
other than the real culprit. For her to do so is to let the guilty go
free."29 Where there is nothing to indicate that witnesses were
actuated by improper motives on the witness stand, their
positive declarations made under solemn oath deserve full faith
and credence.30

Nevertheless, the alleged inconsistency is inconsequential to

the ascertainment of the presence of petitioner at the crime
scene. Ruled the CA:

Statements Uttered Contemporaneous with the Crime

Ernita positively testified that immediately after the shooting,
she had heard her husband say, "Help me pre, I was shot by
the captain." This statement was corroborated by another
witness, Lito Santos, who testified on the events immediately
preceding and subsequent to the shooting.
It should be clear that Santos never testified that petitioner was
the one who had actually shot the victim. Still, the testimony of
this witness is valuable, because it validates the statements
made by Ernita. He confirms that after hearing the gunshot, he
saw the victim and heard the latter cry out those same words.
Petitioner insinuates that it was incredible for Santos to have
seen the victim, but not the assailant. The CA dismissed this
argument thus:
"x x x. The natural reaction of a person who hears a loud or
startling command is to turn towards the speaker. Moreover,
witnessing a crime is an unusual experience that elicits
different reactions from witnesses, for which no clear-cut
standard of behavior can be prescribed. Litos reaction is not
unnatural. He was more concerned about Artemios condition
than the need to ascertain the identity of Artemios assailant."34

35

It was to be expected that, after seeing the victim stagger and

hearing the cry for help, Santos would shift his attention to the
person who had uttered the plea quoted earlier. A shift in his
focus of attention would sufficiently explain why Santos was
not able to see the assailant. Petitioner then accuses this
witness of harboring "a deep-seated grudge,"35 which would
explain why the latter allegedly fabricated a serious accusation.
This contention obviously has no basis. No serious accusation
against petitioner was ever made by Santos. What the latter
did was merely to recount what he heard the victim utter
immediately after the shooting. Santos never pointed to
petitioner as the perpetrator of the crime. The statements of the
former corroborated those of Ernita and therefore simply added
credence to the prosecutions version of the facts. If it were
true that he had an ulterior motive, it would have been very
easy for him to say that he had seen petitioner shoot the victim.
The two witnesses unequivocally declared and corroborated
each other on the fact that the plea, "Help me pre, I was shot
by the captain," had been uttered by the victim. Nevertheless,
petitioner contends that it was highly probable that the
deceased died instantly and was consequently unable to shout
for help. We do not discount this possibility, which petitioner
himself admits to be a probability. In the face of the positive
declaration of two witnesses that the words were actually
uttered, we need not concern ourselves with speculations,
probabilities or possibilities. Said the CA:
"x x x. Thus, as between the positive and categorical
declarations of the prosecution witnesses and the mere opinion
of the medical doctor, the former must necessarily prevail.
"Moreover, it must be stressed that the post-mortem
examination of the cadaver of Artemio was conducted by Dr.
Ledesma only about 9:30 in the morning of November 5, 1998
or the day following the fatal shooting of Artemio. Evidently,
several hours had elapsed prior to the examination. Thus, Dr.
Ledesma could not have determined Artemios physical
condition a few seconds after the man was shot."36
Dying Declaration
Having established that the victim indeed uttered those words,
the question to be resolved is whether they can be considered
as part of the dying declaration of the victim.
Rule 130, Section 37 of the Rules of Court, provides:
"The declaration of a dying person, made under the
consciousness of impending death, may be received in any
case wherein his death is the subject of inquiry, as evidence of
the cause and surrounding circumstances of such death."
Generally, witnesses can testify only to those facts derived
from their own perception. A recognized exception, though, is a
report in open court of a dying persons declaration made
under the consciousness of an impending death that is the
subject of inquiry in the case.37
Statements identifying the assailant, if uttered by a victim on
the verge of death, are entitled to the highest degree of
credence and respect.38 Persons aware of an impending death
have been known to be genuinely truthful in their words and

extremely scrupulous in their accusations.39 The dying

declaration is given credence, on the premise that no one who
knows of ones impending death will make a careless and false
accusation.40 Hence, not infrequently, pronouncements of guilt
have been allowed to rest solely on the dying declaration of the
deceased victim.41
To be admissible, a dying declaration must 1) refer to the
cause and circumstances surrounding the declarants death; 2)
be made under the consciousness of an impending death; 3)
be made freely and voluntarily without coercion or suggestions
of improper influence; 4) be offered in a criminal case, in which
the death of the declarant is the subject of inquiry; and 5) have
been made by a declarant competent to testify as a witness,
had that person been called upon to testify.42
The statement of the deceased certainly concerned the cause
and circumstances surrounding his death. He pointed to the
person who had shot him. As established by the prosecution,
petitioner was the only person referred to as kapitan in their
place.43 It was also established that the declarant, at the time
he had given the dying declaration, was under a
consciousness of his impending death.
True, he made no express statement showing that he was
conscious of his impending death. The law, however, does not
require the declarant to state explicitly a perception of the
inevitability of death.44 The perception may be established from
surrounding circumstances, such as the nature of the
declarants injury and conduct that would justify a conclusion
that there was a consciousness of impending death. 45 Even if
the declarant did not make an explicit statement of that
realization, the degree and seriousness of the words and the
fact that death occurred shortly afterwards may be considered
as sufficient evidence that the declaration was made by the
victim with full consciousness of being in a dying condition.46
Also, the statement was made freely and voluntarily, without
coercion or suggestion, and was offered as evidence in a
criminal case for homicide. In this case, the declarant was the
victim who, at the time he uttered the dying declaration, was
competent as a witness.
As found by the CA, the dying declaration of the victim was
complete, as it was "a full expression of all that he intended to
say as conveying his meaning. It [was] complete and [was] not
merely fragmentary."47 Testified to by his wife and neighbor, his
dying declaration was not only admissible in evidence as an
exception to the hearsay rule, but was also a weighty and
telling piece of evidence.
Res Gestae
The fact that the victims statement constituted a dying
declaration does not preclude it from being admitted as part of
the res gestae, if the elements of both are present.48
Section 42 of Rule 130 of the Rules of Court provides:
"Part of the res gestae. -- Statements made by a person while
a startling occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances thereof,
may be given in evidence as part of the res gestae. So, also,
statements accompanying an equivocal act material to the

36

issue, and giving it a legal significance, may be received as

part of the res gestae."
Res gestae refers to statements made by the participants or
the victims of, or the spectators to, a crime immediately before,
during, or after its commission.49 These statements are a
spontaneous reaction or utterance inspired by the excitement
of the occasion, without any opportunity for the declarant to
fabricate a false statement.50 An important consideration is
whether there intervened, between the occurrence and the
statement, any circumstance calculated to divert the mind and
thus restore the mental balance of the declarant; and afford an
opportunity for deliberation.51
A declaration is deemed part of the res gestae and admissible
in evidence as an exception to the hearsay rule, when the
following requisites concur: 1) the principal act, the res gestae,
is a startling occurrence; 2) the statements were made before
the declarant had time to contrive or devise; and 3) the
statements concerned the occurrence in question and its
immediately attending circumstances.52
All these requisites are present in this case. The principal act,
the shooting, was a startling occurrence. Immediately after,
while he was still under the exciting influence of the startling
occurrence, the victim made the declaration without any prior
opportunity to contrive a story implicating petitioner. Also, the
declaration concerned the one who shot the victim. Thus, the
latters statement was correctly appreciated as part of the res
gestae.
Aside from the victims statement, which is part of the res
gestae, that of Ernita -- "Kapitan, ngano nimo gipatay ang
akong bana?" ("Captain, why did you shoot my husband?") -may be considered to be in the same category. Her statement
was about the same startling occurrence; it was uttered
spontaneously, right after the shooting, while she had no
opportunity to concoct a story against petitioner; and it related
to the circumstances of the shooting.
Second Main Issue:
Sufficiency of Evidence

First. Santos testified that he had heard a gunshot;

and seen smoke coming from the muzzle of a gun, as
well as the victim staggering backwards while
shouting, "Help me pre, I was shot by the captain."
This statement was duly established, and the
testimony of Santos confirmed the events that had
occurred. It should be understandable that "pre"
referred to Santos, considering that he and the victim
were conversing just before the shooting took place. It
was also established that the two called each other
"pre," because Santos was the godfather of the
victims child.54
Second. Ernita testified that she had heard a gunshot
and her husbands utterance, "Help me pre, I was
shot by the captain," then saw petitioner in a black
jacket and camouflage pants running away from the
crime scene while carrying a firearm.
Third. Ernitas statement, "Captain, why did you shoot
my husband?" was established as part of the res
gestae.
Fourth. The version of the events given by petitioner
is simply implausible. As the incumbent barangay
captain, it should have been his responsibility to go
immediately to the crime scene and investigate the
shooting. Instead, he avers that when he went to the
situs of the crime, the wife of the victim was already
shouting and accusing him of being the assailant, so
he just left. This reaction was very unlikely of an
innocent barangay captain, who would simply want to
investigate a crime. Often have we ruled that the first
impulse of innocent persons when accused of
wrongdoing is to express their innocence at the first
opportune time.55
Fifth. The prosecution was able to establish motive on
the part of petitioner. The victims wife positively
testified that prior to the shooting, her husband was
trying to close a real estate transaction which
petitioner tried to block. This showed petitioners
antagonism towards the victim.56

Having established the evidence for the prosecution, we now

address the argument of petitioner that the appellate court had
effectively shifted the burden of proof to him. He asserts that
the prosecution should never rely on the weakness of the
defense, but on the strength of its evidence, implying that there
was no sufficient evidence to convict him.

These pieces of evidence indubitably lead to the conclusion

that it was petitioner who shot and killed the victim. This Court
has consistently held that, where an eyewitness saw the
accused with a gun seconds after the gunshot and the victims
fall, the reasonable conclusion is that the accused had killed
the victim.57 Further establishing petitioners guilt was the
definitive statement of the victim that he had been shot by the
barangay captain.

We disagree. The totality of the evidence presented by the

prosecution is sufficient to sustain the conviction of petitioner.
The dying declaration made by the victim immediately prior to
his death constitutes evidence of the highest order as to the
cause of his death and of the identity of the assailant.53 This
damning evidence, coupled with the proven facts presented by
the prosecution, leads to the logical conclusion that petitioner is
guilty of the crime charged.

Clearly, petitioners guilt was established beyond reasonable

doubt. To be sure, conviction in a criminal case does not
require a degree of proof that, excluding the possibility of error,
produces absolute certainty.58 Only moral certainty is required
or that degree of proof that produces conviction in an
unprejudiced mind.59

The following circumstances proven by the prosecution

produce a conviction beyond reasonable doubt:

That some pieces of the above-mentioned evidence are

circumstantial does not diminish the fact that they are of a
nature that would lead the mind intuitively, or by a conscious
process of reasoning, toward the conviction of petitioner.60
Circumstantial, vis--vis direct, evidence is not necessarily

37

weaker.61 Moreover, the circumstantial evidence described

above satisfies the requirements of the Rules of Court, which
we quote:
"SEC. 4. Circumstantial evidence, when sufficient.
Circumstantial evidence is sufficient for conviction if:

--

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived
are proven; and
(c) The combination of all the circumstances is such
as to produce a conviction beyond reasonable
doubt."62
Paraffin Test
Petitioner takes issue with the negative results of the paraffin
test done on him. While they were negative, that fact alone did
not ipso facto prove that he was innocent. Time and time again,
this Court has held that a negative paraffin test result is not a
conclusive proof that a person has not fired a gun.63 In other
words, it is possible to fire a gun and yet be negative for
nitrates, as when culprits wear gloves, wash their hands
afterwards, or are bathed in perspiration. 64 Besides, the
prosecution was able to establish the events during the
shooting, including the presence of petitioner at the scene of
the crime. Hence, all other matters, such as the negative
paraffin test result, are of lesser probative value.

witness is within the discretionary power of the prosecutor and

definitely not of the courts to dictate.
"Anent the failure of the investigators to conduct a paraffin test
on petitioner, this Court has time and again held that such
failure is not fatal to the case of the prosecution as scientific
experts agree that the paraffin test is extremely unreliable and
it is not conclusive as to an accuseds complicity in the crime
committed."66
Finally, as regards petitioners alibi, we need not belabor the
point. It was easily, and correctly, dismissed by the CA thus:
"[Petitioners] alibi is utterly untenable. For alibi to prosper, it
must be shown that it was physically impossible for the
accused to have been at the scene of the crime at the time of
its commission. Here, the locus criminis was only several
meters away from [petitioners] home. In any event, this
defense cannot be given credence in the face of the credible
and positive identification made by Ernita."67
Third Issue:
Damages
An appeal in a criminal proceeding throws the whole case open
for review.1avvphil.net It then becomes the duty of this Court to
correct any error in the appealed judgment, whether or not
included in the assignment of error.68 The CA upheld the RTC
in the latters award of damages, with the modification that
unearned income be added.

Corpus Delicti
Petitioner then argues that the prosecution miserably failed to
establish the type of gun used in the shooting. Suffice it to say
that this contention hardly dents the latters case. As correctly
found by the appellate court, the prosecution was able to give
sufficient proof of the corpus delicti -- the fact that a crime had
actually been committed. Ruled this Court in another case:
"[Corpus delicti] is the fact of the commission of the crime that
may be proved by the testimony of eyewitnesses. In its legal
sense, corpus delicti does not necessarily refer to the body of
the person murdered, to the firearms in the crime of homicide
with the use of unlicensed firearms, to the ransom money in
the crime of kidnapping for ransom, or x x x to the seized
contraband cigarettes."65
To undermine the case of the prosecution against him,
petitioner depends heavily on its failure to present the gun
used in the shooting and on the negative paraffin test result.
These pieces of evidence alone, according to him, should
exculpate him from the crime. His reliance on them is definitely
misplaced, however. In a similar case, this Court has ruled as
follows:
"Petitioner likewise harps on the prosecutions failure to
present the records from the Firearms and Explosives
Department of the Philippine National Police at Camp Crame of
the .45 caliber Remington pistol owned by petitioner for
comparison with the specimen found at the crime scene with
the hope that it would exculpate him from the trouble he is in.
Unfortunately for petitioner, we have previously held that the
choice of what evidence to present, or who should testify as a

We uphold the award of P50,000 indemnity ex delicto 69 to the

heirs of the victim. When death occurs as a result of a crime,
the heirs of the deceased are entitled to this amount as
indemnity for the death, without need of any evidence or proof
of damages.70 As to actual damages, we note that the
prosecution was able to establish sufficiently only P22,200 for
funeral and burial costs. The rest of the expenses, although
presented, were not duly receipted. We cannot simply accept
them as credible evidence. This Court has already ruled,
though, that when actual damages proven by receipts during
the trial amount to less than P25,000, the award of P25,000 for
temperate damages is justified, in lieu of the actual damages of
a lesser amount.71 In effect, the award granted by the lower
court is upheld.
As to the award of moral damages, the P500,000 given by the
RTC and upheld by the CA should be reduced to P50,000,
consistent with prevailing jurisprudence.72 We also affirm the
award of loss of earning capacity73 in the amount of P312,000;
attorneys fees of P20,000; and payment of the costs.
WHEREFORE, the Petition is DENIED and the assailed
Decision and Resolution are AFFIRMED, subject to the
modification in the award of damages set forth here. Costs
against petitioner.
SO ORDERED.

38

G.R. No. 173608

November 20, 2008

JESUS GERALDO and AMADO ARIATE, petitioners

vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
CARPIO MORALES, J.:
Petitioners Jesus Geraldo and Amado Ariate were, by
Information dated December 23, 2002 filed on December 27,
2002 before the Regional Trial Court of Surigao del Sur,
charged with Homicide allegedly committed as follows:
x x x [O]n the 1 st day of July, 2002 at about 3:00
o'clock early morning, more or less, at Sitio Tinago,
Barangay Bunga, municipality of Lanuza, province of
Surigao del Sur, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused,
conspiring and mutually helping one another, armed
with xxx handguns and with intent to kill, did, then and
there, willfully, unlawfully and feloniously sho[o]t one
ARTHUR U.1 RONQUILLO, thereby hitting and
inflicting upon the latter wounds described hereunder:
POINT OF ENTRY:
1. Right lumbar area
2. Right iliac area
POINT OF EXIT
1. Left lateral area of abdomen
2. Right hypogastric area

39

which wounds have caused the instantaneous death

of said ARTHUR U. RONQUILLO, to the damage and
prejudice of his heirs in the following amount:

P50,000.00

as life indemnity of the victim;

10,000.00

as moral damages;

Jesus Geraldo Jr. alias Bajing

Amado Ariate

/x/x/x/ /x/x/x/
PURPOSE OF LABORATORY EXAMINATION

10,000.00

as exemplary damages; and

To determine the presence of gunpowder

residue, Nitrates. /x/x/x/

FINDINGS:
40,000.00

as actual damages.

CONTRARY TO LAW.2
At 3:00 a.m. of July 1, 2002, his wife, daughter Mirasol, and
son Arnel, among other persons, on being informed of the
shooting of Arthur Ronquillo (the victim), repaired to where he
was, not far from his residence, and found him lying on his side
and wounded. Although gasping for breath, he was able to
utter to Mirasol, within the hearing distance of Arnel, that he
was shot by Badjing3 and Amado.
Petitioners who were suspected to be the "Badjing" and
"Amado" responsible for the shooting of the victim were
subjected to paraffin tests at the Philippine National Police
(PNP) Crime Laboratory in Butuan City. In the PNP Chemistry
Report No. C-002-2002-SDS,4 the following data are reflected:
xxxx

Qualitative examination conducted on

specimens A and B gave NEGATIVE results
for powder residue, Nitrates. /x/x/x/
CONCLUSION:
Specimens A and B do not reveal the
presence of gunpowder residue, Nitrates.
/x/x/x/
REMARKS:
The original copy of this report is retained in
this laboratory for future reference.
TIME AND DATE COMPLETED:
1700H 03 July 2002
x x x x (Underscoring supplied)

TIME AND DATE RECEIVED

REQUESTING PARTY/UNIT

SPECIMEN SUBMITTED

Paraffin casts taken from the left and the right hands
of the following named living persons:

In a document dated July 1, 2002 and denominated as

"Affidavit"5 which was subscribed and sworn to before Clerk of
Court II Manuel A. Balasa, Sr. on July 26, 2002, the victim's
son Arnel gave a statement in a question and answer style that
herein petitioners Jesus Geraldo and Amado Ariate were the
ones who shot his father.
In another document dated July 4, 2002 also denominated as
"Affidavit"6 which was subscribed and sworn to also before the
same Clerk of Court II Balasa on July 26, 2002, Mirasol also
gave a statement in a question and answer style that her father
uttered that herein petitioners shot him.
At the witness stand, Mirasol echoed her father's declaration
that "Badjing" and "Amado" shot him. Arnel substantially
corroborated Mirasol's statement.7
Upon the other hand, petitioners gave their side of the case as
follows:

40

Petitioner Ariate, a barangay tanod of Bunga, declared that

Barangay Kagawad Omboy Roz (Roz) woke him up at 3:00
a.m. of July 1, 2002 and informed him that the victim was shot.
He and Roz thus borrowed a tricycle, proceeded to the crime
scene and, along with others, brought the victim to the hospital
where he was pronounced dead on arrival. Ariate submitted
himself to a paraffin test and tested negative for gunpowder
residue/nitrates.8
Petitioner Geraldo declared that he slept in his house located
also in Barangay Bunga, Lanuza at 9:30 p.m. of June 30, 2002
and woke up at 4:00 a.m. the following day. At 6:30 a.m., on
seeing many people in the vicinity of the 45-meter away house
of one Josita Bongabong where the victim's body was found,
he inquired and learned that the victim was shot. Policemen
subsequently went to his house and advised him to take a
paraffin test. He obliged and was tested at the PNP Crime
Laboratory and was found negative for gunpowder
residue/nitrates.9
In the course of the testimony of Ariate, his counsel presented
the PNP Chemistry Report reflecting the negative results of the
paraffin test on him and Geraldo. The trial court restrained the
presentation of the document, however, as reflected in the
following transcript of stenographic notes taken on March 21,
2003:

As shown from the above-quoted transcript of the proceedings,

the trial court restrained the presentation of the result of the
paraffin tests because the same was not covered in the Pretrial Order. In the Pre-trial Order,11 the trial court noted the
parties' agreement "that witnesses not listed in this Pre-trial
Order shall not be allowed to testify as additional witnesses."
Significantly, there was no agreement to disallow the
presentation of documents which were not reflected in the Pretrial Orders. At all events, oddly, the trial court allowed the
marking of the PNP Chemistry Report as Exhibit "3."12
When petitioner Geraldo's turn to present the same PNP
Chemistry Report came, the trial court ruled:
COURT
That is the problem in the Pre-Trial Brief if
the exhibits are not stated. I will set aside
that Order and in the interest of justice I will
allow the accused to submit, next time I will
not any more consider exhibits not listed in
the Pre-trial Order.13 (Underscoring supplied)
The version of the defense was in part corroborated by
witnesses.
The trial court, passing on the demeanor of prosecution
witness-the victim's eight-year old daughter Mirasol, observed:

xxxx
Q I am showing to you [Ariate] a copy of the result of
the paraffin test attached to the record of this case.
COURT
Is it covered in the Pre-trial Order? You
cannot do that. That is why I told you; lay
your cards on the table.
ATTY. AUZA

. . . She talks straightforward, coherent and clear, very

intelligent, with child mannerism[s]. While testifying
she was criss-crossing her hands, touching anything
within her reach, innocent and simple, pressing of[f]
and on her stomach but she talks with correct
grammar. No doubt, this Court was convinced of her
testimony which was corroborated by her brother
Arnel Ronquillo.14
On the nature and weight of the dying declaration of the victim,
the trial court observed:

May I ask for the court's reconsideration.

COURT
Denied. I am warning you, all of you.
ATTY. AUZA
With the denial of our motion for
reconsideration, I move to tender exclusive
evidence. He would have identified this
result. The paraffin test, which [forms] part of
the affidavit of this witness attached to the
record of this case on page 29. May I ask
that this will be marked as Exhibit "3" for the
defense.
COURT
Mark it. (Marked).10 (Underscoring supplied)

A dying declaration may be xxx oral or in writing. As a

general rule, a dying declaration to be admissible
must be made by the declarant while he is conscious
of his impending death. However, even if a declarant
did not make a statement that he was on the brink of
death, the degree and seriousness of the wound and
the fact that death supervened shortly afterwards may
be considered as substantial evidence that the
declaration was made by the victim with full realization
that he was in a dying condition; People vs. Ebrada,
296 SCRA 353.
Even assuming that the declaration is not admissible
as a dying declaration, it is still admissible as part of
the res gestae since it was made shortly after the
startling occurrence and under the influence thereof,
hence, under the circumstances, the victim evidently
had no opportunity to contrive.15 (Underscoring
supplied)
Finding for the prosecution, the trial court convicted petitioners,
disposing as follows:

41

WHEREFORE, finding the accused JESUS

GERALDO y CUBERO and AMADO ARIATE y
DIONALDO guilty beyond reasonable doubt of the
crime of Homicide penalized under Article 249 of the
Revised Penal Code and with the presence of one (1)
aggravating circumstance of night time and applying
the Indeterminate Sentence Law, the maximum term
of which could be properly imposed under the rules of
said code and the minimum which shall be within the
range of the penalty next lower to that prescribe[d] by
the code for the offense, hereby sentences each to
suffer the penalty of TEN (10) YEARS and ONE (1)
DAY of Prision Mayor minimum to SEVENTEEN (17)
YEARS, FOUR (4) MONTHS and ONE (1) DAY of
Reclusion Temporal maximum as maximum, with all
the accessory penalties provided for by law. To pay
the heirs of the victim the amount of P50,000.00 as
life indemnity, P100,000.00 as moral damages and
P20,000.00 as exemplary damages. The claim for
actual damages is denied, there being no evidence to
support the same.
The bail bond put up by the accused Jesus Geraldo
and Amado Ariate are ordered cancelled and to pay
the cost.
16

SO ORDERED. (Underscoring supplied)

The Court of Appeals, by Decision of June 30, 2006, 17 affirmed
with modification the trial court's decision. It found that the trial
court erred in appreciating nocturnity as an aggravating
circumstance. And it reduced the award of moral damages 18 to
P50,000, and deleted the award of exemplary damages. Thus
the Court of Appeals disposed:
WHEREFORE, in view of the foregoing, the appealed
decision is hereby AFFIRMED save for the
modification of the penalty imposed. Accordingly,
accused-appellants are each hereby sentenced to
suffer an indeterminate penalty of Eight (8) years,
Five (5) Months and One (1) Day of prision mayor
medium as minimum, to Seventeen (17) Years and
Four (4) Months of reclusion temporal medium as
maximum, with all accessory penalties provided by
law, and to jointly and solidarily pay the heirs of the
victim the amount of P50,000.00 as indemnity and
P50,000.00 as moral damages.
SO ORDERED.19 (Italics in the original)
Hence, the present Petition20 raising the following issues:
I
WHETHER OR NOT THE IDENTIT[IES] OF THE
ACCUSED-APPELLANTS AS
THE ALLEGED
ASSAILANT
HAS
BEEN
ADEQUATELY
ESTABLISHED AS PER EVIDENCE ON RECORD?
II
WHETHER OR NOT THE IDENTIT[IES] OF THE
ACCUSED-APPELLANTS
HAD
BEEN

ESTABLISHED BY PROOF BEYOND REASONABLE

DOUBT?21 (Emphasis and underscoring supplied)
Petitioners argue:
With due respect, herein petitioners disagree with the
holding of the Honorable Court of Appeals that "It is
not necessary that the victim further identify that
"Badjing" was in fact Jesus Geraldo or that "Amado"
was Amado Ariate" because, [so petitioners contend],
it is the obligation of the prosecution to establish
with moral certainty that indeed the persons they
identified as the as the assailant of Arthur O.
Ronquillo were really the ones who perpetrated the
crime.
Admittedly, prosecution witnesses were able to
identify positively herein petitioners as the alleged
assailant[s] of Arthur O. Ronquillo. But said
identification is based on the assumption that they
were the very same "BADJING AMADO" and/or
"BADJING AND AMADO" referred to by their
deceased father in his dying declaration.
What the Honorable Court of Appeals failed to
consider is that, just because the victim declared that
it was "BADJING AMADO" and/or "BADJING AND
AMADO" who shot him does not necessarily follow
that herein petitioners were really the perpetrators in
the absence of proof that the "BADJING" referred to
by him is Jesus Geraldo and that the "AMADO" is
Amado Ariate. It would have been a different story
had the prosecution witnesses [been] eyewitnesses
because proof that the "BADJING AMADO" and/or
"BADJING AND AMADO" referred to by the victim and
the persons identified by the prosecution witnesses
are the same is unnecessary.
Herein petitioners believe, that even assuming that
there are no other "BADJING" or "AMADO" in the
barangay, still it does not follow that the person[s]
referred to by the dying declarant as his assailant
were Jesus Geraldo alias "BADJING" and Amado
Ariate alias "AMADO". Although, it is inconceivable
how the Honorable Court of Appeals arrived at the
said conclusion that there are no other "BADJING
AMADO" and/or "BADJING AND AMADO" in the
barangay absent any proof to that effect from the
prosecution.22 (Underscoring in the original)
The petition is impressed with merit.
The trial court relied on the dying declaration of the victim as
recounted by his daughter Mirasol and corroborated by his son
Arnel.
A dying declaration is admissible as evidence if the following
circumstances are present: (a) it concerns the cause and the
surrounding circumstances of the declarant's death; (b) it is
made when death appears to be imminent and the declarant is
under a consciousness of impending death; (c) the declarant
would have been competent to testify had he or she survived;
and (d) the dying declaration is offered in a case in which the
subject of inquiry involves the declarant's death.23

42

There is no dispute that the victim's utterance to his children

related to the identities of his assailants. As for the victim's
consciousness of impending death, it is not necessary to prove
that he stated that he was at the brink of death; it suffices that,
judging from the nature and extent of his injuries, the
seriousness of his condition was so apparent to him that it may
safely be inferred that such ante mortem declaration was made
under consciousness of an impending death.24 The location of
the victim's two gunshot wounds, his gasping for breath, and
his eventual death before arriving at the hospital meet this
requirement.25

Petitioners' defense of denial and alibi thus assumes

importance.

It has not been established, however, that the victim would

have been competent to testify had he survived the attack.
There is no showing that he had the opportunity to see his
assailant. Among other things, there is no indication whether
he was shot in front, the post-mortem examination report
having merely stated that the points of entry of the wounds
were at the "right lumbar area" and the "right iliac area." 26
"Lumbar" may refer to "the loins" or "the group of vertebrae
lying between the thoracic vertebrae and the sacrum," 27 or to
"the region of the abdomen lying on either side of the umbilical
region and above the corresponding iguinal."28 "Iliac" relates to
the "ilium," which is "one of the three bones composing either
lateral half of the pelvis being in man broad and expanded
above and narrower below where it joins with the ischium and
pubis to form part of the actabulum."29

WHEREFORE, the petition is GRANTED. The Decision of the

Court of Appeals dated June 30, 2006 affirming with
modification the Decision of Branch 41 of the Surigao del Sur
Regional Trial Court is REVERSED and SET ASIDE.
Petitioners Jesus Geraldo and Amado Ariate are ACQUITTED
of the charge of Homicide for failure of the prosecution to
establish their guilt beyond reasonable doubt.

Specifically with respect to petitioner Ariate, the victim's wife

admitted that Ariate accompanied her family in bringing the
victim to the hospital.35 While non-flight does not necessarily
indicate innocence, under the circumstances obtaining in the
present case, Ariate's spontaneous gesture of immediately
extending assistance to the victim after he was advised by the
Barangay Kagawad of the victim's fate raises reasonable doubt
as to his guilt of the crime charged.36

Let a copy of this Decision be furnished the Director of the

Bureau of Corrections, Muntinlupa City who is directed to
cause the immediate release of petitioners unless they are
being lawfully held for another cause, and to inform this Court
of action taken within ten (10) days from notice hereof.
SO ORDERED.

At all events, even if the victim's dying declaration were

admissible in evidence, it must identify the assailant with
certainty; otherwise it loses its significance.30
In convicting petitioners, the trial court, as stated earlier, relied
on the testimony of the victim's daughter Mirasol, which was
corroborated by her brother Arnel, that the "Badjing" and
"Amado" mentioned by the victim as his assailants are herein
petitioners whom they claimed to know because they live in the
same barangay.31 The Court of Appeals believed too the
siblings' testimonies, holding that
It is not necessary that the victim further identify that
"Badjing" was in fact Jesus Geraldo or that "Amado"
was Amado Ariate. There was never an issue as to
the identity of the accused. There was no other
person known as "Badjing" or "Amado" in their
neighborhood or in their barangay. Accusedappellants never presented any proof that a
person in their locality had the same aliases or
names as they. It is not uncommon that even an
eight-year-old child can identify that Jesus Geraldo
was known as "Badjing" and that Amado Ariate was
"Amado."32 (Underscoring supplied)
Contrary, however, to the immediately-quoted ruling of the
appellate court, it is the prosecution, not petitioners, which had
the burden of proving that petitioners were, at the material
time, the only ones in the barangay who bore such nicknames
or aliases. This, the prosecution failed to discharge.
When there is doubt on the identity of the malefactors, motive
is essential for their conviction.33 The Court notes that in their
affidavits supporting the criminal complaint, the victim's wife
and children Mirasol and Arnel proffered not knowing any
possible motive for petitioners to shoot the victim. 34 At the trial,
no evidence of any motive was presented by the prosecution.

G.R. NO. 146556

April 19, 2006

43

DANILO
L.
PAREL,
vs.
SIMEON B. PRUDENCIO, Respondent.

Petitioner,

DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari filed by Danilo
Parel (petitioner) which seeks to set aside the Decision 1 dated
March 31, 2000 of the Court of Appeals (CA) which reversed
the Decision of the Regional Trial Court (RTC), Branch 60,
Baguio, in Civil Case No. 2493-R, a case for recovery of
possession and damages. Also assailed is CA Resolution 2
dated November 28, 2000.
On February 27, 1992, Simeon Prudencio (respondent) filed a
complaint for recovery of possession and damages against
petitioner with the RTC Baguio alleging that: he is the owner of
a two-storey residential house located at No. 61 Forbes Park
National Reservation near Department of Public Service (DPS)
compound, Baguio City; such property was constructed solely
from his own funds and declared in his name under Tax
Declaration No. 47048; he commenced the construction of said
house in 1972 until its completion three years later; when the
second floor of said house became habitable in 1973, he
allowed petitioners parents, Florentino (now deceased) and
Susan Parel, to move therein and occupy the second floor
while the construction of the ground floor was on-going to
supervise the construction and to safeguard the materials;
when the construction of the second floor was finished in 1975,
respondent allowed petitioners parents and children to transfer
and temporarily reside thereat; it was done out of sheer
magnanimity as petitioners parents have no house of their
own and since respondents wife is the older sister of
Florentino, petitioners father; in November 1985, respondent
wrote Florentino a notice for them to vacate the said house as
the former was due for retirement and he needed the place to
which petitioners parents heeded when they migrated to U.S.
in 1986; however, without respondents knowledge, petitioner
and his family unlawfully entered and took possession of the
ground floor of respondents house; petitioners refusal to
vacate the house despite repeated demands prompted
respondent to file the instant action for recovery of possession.
Respondent also asked petitioner for a monthly rental of
P3,000.00 from April 1988 and every month thereafter until the
latter vacates the said premises and surrender possession
thereof; and for moral and exemplary damages, attorneys fees
and cost of suit.
Petitioner filed his Answer with Counterclaim alleging that: his
parents are the co-owners of the said residential house, i.e.,
the upper story belongs to respondent while the ground floor
pertains to petitioners parents; he is occupying the ground
floor upon the instruction of his father, Florentino, with
respondents full knowledge; his parents spent their own
resources in improving and constructing the said two-storey
house as co-owners thereof; the late Florentino was an
awardee of the land on which the house stands and as a coowner of the house, he occupied the ground floor thereof; the
demand to vacate was respondents attempt to deprive
petitioners parents of their rights as co-owner of the said
house; that respondent had filed ejectment case as well as
criminal cases against them involving the subject house which
were all dismissed. Petitioner asked for the dismissal of the
complaint and prayed for damages and attorneys fees.

After trial on the merits, the RTC rendered a Decision 3 dated

December 15, 1993, the dispositive portion of which reads:
WHEREFORE, premises considered, the Court hereby
declares that the house erected at No. 61 DPS Compound,
Baguio City is owned in common by the late Florentino Parel
and herein plaintiff Simeon Prudencio and as such the plaintiff
cannot evict the defendant as heirs of the deceased Florentino
Parel from said property, nor to recover said premises from
herein defendant.
Likewise, the plaintiff is ordered to:
(a) pay the defendant in the total sum of P20,000.00
for moral and actual damages;
(b) pay the defendant P20,000.00 in Attorneys fees
and P3,300.00 in appearance fees;
(c) pay the costs of this suit.4
The RTC found the following matters as conclusive: that
petitioners father was an allocatee of the land on which the
subject house was erected, as one of the lowly-paid
government employees at that time when then Mayor Luis
Lardizabal gave them the chance to construct their own house
on said reservation; that respondent failed to show proof of any
contract, written or oral, express or implied, that the late
Florentino and his family stayed on the house not as co-owners
but as mere lessees, nor any other proof that would clearly
establish his sole ownership of the house; and, that the late
Florentino was the one who gathered the laborers for the
construction of the house and paid their salaries. Thus, the
RTC ruled that co-ownership existed between respondent and
petitioners father, Florentino.
The RTC concluded that respondent and petitioners father
agreed to contribute their money to complete the house; that
since the land on which said house was erected has been
allocated to petitioners father, the parties had the
understanding that once the house is completed, petitioners
father could keep the ground floor while respondent the second
floor; the trial court questioned the fact that it was only after 15
years that respondent asserted his claim of sole ownership of
the subject house; respondent failed to disprove that
petitioners father contributed his own funds to finance the
construction of the house; that respondent did not question (1)
the fact that it was the deceased Florentino who administered
the construction of the house as well as the one who supplied
the materials; and (2) the fact that the land was in Florentinos
possession created the impression that the house indeed is
jointly owned by respondent and Florentino.
The RTC did not give credence to the tax declaration as well
as the several documents showing the City Assessors
assessment of the property all in respondents name since tax
declarations are not conclusive proof of ownership. It rejected
the affidavit executed by Florentino declaring the house as
owned by respondent saying that the affidavit should be read in
its entirety to determine the purpose of its execution; that it was
executed because of an advisement addressed to the late
Florentino by the City Treasurer concerning the propertys tax
assessment and Florentino, thought then that it should be the
respondent who should pay the taxes; and that the affidavit
cannot be accepted for being hearsay.

44

Aggrieved by such decision, respondent appealed to the CA. In

a Decision dated March 31, 2000, the CA reversed the trial
court and declared respondent as the sole owner of the subject
house and ordered petitioner to surrender possession of the
ground floor thereof to respondent immediately. It also ordered
petitioner to pay respondent a monthly rental of P2,000.00 for
use or occupancy thereof from April 1988 until the former
actually vacates the same and the sum of P50,000.00 as
attorneys fees and cost of suit.
The CA found as meritorious respondents contention that
since petitioner failed to formally offer in evidence any
documentary evidence, there is nothing to refute the evidence
offered by respondent. It ruled that the trial courts statement
that "defendants occupancy of the house is due to a special
power of attorney executed by his parents most specially the
deceased Florentino Parel who is in fact a co-owner of said
building" is wanting of any concrete evidence on record; that
said power of attorney was never offered, hence, could not be
referred to as petitioners evidence to support his claim; that
except for the bare testimonies of Candelario Regua, the
carpenter-foreman, that it was Florentino who constructed the
house and Corazon Garcia, the former barangay captain, who
testified that the lot was allocated to petitioners father, there
was no supporting document which would sufficiently establish
factual bases for the trial courts conclusion; and that the rule
on offer of evidence is mandatory.
The CA found the affidavit dated September 24, 1973 of
Florentino, petitioners father, stating that he is not the owner of
the subject house but respondent, as conclusive proof of
respondents sole ownership of the subject house as it is a
declaration made by Florentino against his interest. It also
found the tax declarations and official receipts representing
payments of real estate taxes of the questioned property
covering the period 1974 to 1992 sufficient to establish
respondents case which constitute at least proof that the
holder has a claim of title over the property.
Petitioners motion for reconsideration was denied in a
Resolution dated November 28, 2000.1avvphil.net
Hence, the instant petition for review on certiorari with the
following Assignment of Errors:
1. THE HONORABLE COURT OF APPEALS GRAVELY
ERRED IN FINDING RESPONDENT AS THE OWNER OF
THE BUILDING AT 61 FORBES PARK NATIONAL
RESERVATION, NEAR DPS COMPOUND, BAGUIO CITY,
NOTWITHSTANDING THE FINDING OF THE REGIONAL
TRIAL COURT OF CO-OWNERSHIP BETWEEN THE LATE
FLORENTINO PAREL AND RESPONDENT;
2. THE HONORABLE COURT OF APPEALS GRAVELY
ERRED IN ORDERING PETITIONER TO SURRENDER
POSSESSION OF THE GROUND FLOOR OF THE SUBJECT
BUILDING TO RESPONDENT;
3. THE HONORABLE COURT OF APPEALS GRAVELY
ERRED IN ORDERING PETITIONER TO PAY RESPONDENT
P2,000.00/MONTH FOR USE OR OCCUPANCY OF THE
SUBJECT PREMISES FROM APRIL 1988 UNTIL
PETITIONER ACTUALLY VACATES THE SAME;

4. THE HONORABLE COURT OF APPEALS GRAVELY

ERRED IN ORDERING PETITIONER TO PAY TO
RESPONDENT P50,000.00 ATTORNEYS FEES AND COSTS
OF SUIT;
5. THE HONORABLE COURT OF APPEALS ERRED IN
DENYING
PETITIONERS
MOTION
FOR
RECONSIDERATION. 5
Petitioner concedes that while his former counsel failed to
make a formal offer of his documentary evidence before the
trial court and that the court shall consider no evidence which
has not been formally offered, he maintains that the said rule is
not absolute, citing the case of Bravo, Jr. v. Borja; 6 that his
documentary evidence which were not formally offered in
evidence were marked during the presentation of the testimony
of petitioners witnesses and were part of their testimonies; that
these evidence were part of the memorandum filed by him
before the trial court on July 12, 1993.
Petitioner insists that even in the absence of the documentary
evidence, his testimony as well as that of his witnesses
substantiated his claim of co-ownership of the subject house
between his late father and respondent as found by the trial
court.
Petitioner argues that the CA erred in finding the affidavit of
petitioners father declaring respondent as owner of the subject
house as conclusive proof that respondent is the true and only
owner of the house since the affidavit should be read in its
entirety to determine the purpose for which it was executed.
Petitioner further contends that since he had established his
fathers co-ownership of the subject house, respondent has no
legal right to eject him from the property; that he could not be
compelled to pay rentals for residing in the ground floor of the
subject house; that respondent should bear his own expenses
and be adjudged liable for damages which petitioner sustained
for being constrained to litigate.
The principal issue for resolution is whether petitioner was able
to prove by preponderance of evidence that his father was a
co-owner of the subject two-storey residential house.
The issue raised by petitioner is mainly factual in nature. In
general, only questions of law are appealable to this Court
under Rule 45. However, considering that the findings of the
RTC and CA are contradictory, the review of the case is in
order.7
We agree with the CA that respondent had shown sufficient
evidence to support his complaint for recovery of possession of
the ground floor of the subject house as the exclusive owner
thereof. Respondent presented the affidavit dated September
24, 1973 executed by Florentino and sworn to before the
Assistant City Assessor of Baguio City, G.F. Lagasca, which
reads:
I, FLORENTINO PAREL, 42 years of age, employee, and
residing at Forbes Park, Reservation No. 1, after having been
sworn to according to law depose and say:
That he is the occupant of a residential building located at
Forbes Park, Reservation No. 1, Baguio City which is the

45

subject of an advicement addressed to him emanating from the

Office of the City Assessor, Baguio City, for assessment and
declaration for taxation purposes;
That I am not the owner of the building in question;
That the building in question is owned by Mr. Simeon B.
Prudencio who is presently residing at 55 Hyacinth, Roxas
District, Quezon City.
Further, affiant say not.8 (Underscoring supplied)
Section 38 of Rule 130 of the Rules of Court provides:
SEC. 38. Declaration against interest. The declaration made
by a person deceased, or unable to testify, against the interest
of the declarant, if the fact asserted in the declaration was at
the time it was made so far contrary to the declarant's own
interest, that a reasonable man in his position would not have
made the declaration unless he believed it to be true, may be
received in evidence against himself or his successors-ininterest and against third persons.
The theory under which declarations against interest are
received in evidence notwithstanding they are hearsay is that
the necessity of the occasion renders the reception of such
evidence advisable and, further that the reliability of such
declaration asserts facts which are against his own pecuniary
or moral interest.9
The affiant, Florentino, who died in 1989 was petitioners father
and had adequate knowledge with respect to the subject
covered by his statement. In said affidavit, Florentino
categorically declared that while he is the occupant of the
residential building, he is not the owner of the same as it is
owned by respondent who is residing in Quezon City. It is safe
to presume that he would not have made such declaration
unless he believed it to be true, as it is prejudicial to himself as
well as to his childrens interests as his heirs.10 A declaration
against interest is the best evidence which affords the greatest
certainty of the facts in dispute.11 Notably, during Florentinos
lifetime, from 1973, the year he executed said affidavit until
1989, the year of his death, there is no showing that he had
revoked such affidavit even when a criminal complaint for
trespass to dwelling had been filed by respondent against him
(Florentino) and petitioner in 1988 regarding the subject house
which the trial court dismissed due to the absence of evidence
showing that petitioner entered the house against the latters
will and held that the remedy of respondent was to file an
action for ejectment;12 and even when a complaint for unlawful
detainer was filed against petitioner and his wife also in 1988
which was subsequently dismissed on the ground that
respondents action should be an accion publiciana which is
beyond the jurisdiction of the Municipal Trial Court.13
Moreover, the building plan of the residential house dated
January 16, 1973 was in the name of respondent and his wife.
It was established during petitioners cross-examination that
the existing structure of the two-storey house was in
accordance with said building plan.14
Notably, respondent has been religiously paying the real estate
property taxes on the house declared under his name since
1974.15 In fact, petitioner during his cross-examination admitted

that there was no occasion that they paid the real estate taxes
nor declared any portion of the house in their name.16
We agree with the CA that while tax receipts and declarations
are not incontrovertible evidence of ownership, they constitute
at least proof that the holder has a claim of title over the
property.17 The house which petitioner claims to be co-owned
by his late father had been consistently declared for taxation
purposes in the name of respondent, and this fact, taken with
the other circumstances above-mentioned, inexorably lead to
the conclusion that respondent is the sole owner of the house
subject matter of the litigation.
Respondent having established his claim of exclusive
ownership of the subject property, it was incumbent upon
petitioner to contravene respondents claim. The burden of
evidence shifted to petitioner to prove that his father was a coowner of the subject house.
We held in Jison v. Court of Appeals, to wit:18
xxx Simply put, he who alleges the affirmative of the issue has
the burden of proof, and upon the plaintiff in a civil case, the
burden of proof never parts. However, in the course of trial in a
civil case, once plaintiff makes out a prima facie case in his
favor, the duty or the burden of evidence shifts to defendant to
controvert plaintiff's prima facie case, otherwise, a verdict must
be returned in favor of plaintiff. Moreover, in civil cases, the
party having the burden of proof must produce a
preponderance of evidence thereon, with plaintiff having to rely
on the strength of his own evidence and not upon the
weakness of the defendants. The concept of "preponderance
of evidence" refers to evidence which is of greater weight, or
more convincing, that which is offered in opposition to it; at
bottom, it means probability of truth.19
In this case, the records show that although petitioners
counsel asked that he be allowed to offer his documentary
evidence in writing, he, however, did not file the same.20 Thus,
the CA did not consider the documentary evidence presented
by petitioner. Section 34 of Rule 132 of the Rules of Court
provides:
Section 34. Offer of evidence. The court shall consider no
evidence which has not been formally offered. The purpose for
which the evidence is offered must be specified.
A formal offer is necessary because it is the duty of a judge to
rest his findings of facts and his judgment only and strictly upon
the evidence offered by the parties to the suit. 21 It is a settled
rule that the mere fact that a particular document is identified
and marked as an exhibit does not mean that it has thereby
already been offered as part of the evidence of a party.22
Petitioner insists that although his documentary evidence were
not formally offered, the same were marked during the
presentation of the testimonial evidence, thus it can properly be
taken cognizance of relying in Bravo, Jr. v. Borja.23
Such reliance is misplaced. In Bravo Jr., we allowed evidence
on minority by admitting the certified true copy of the birth
certificate attached to a motion for bail even if it was not
formally offered in evidence. This was due to the fact that the
birth certificate was properly filed in support of a motion for bail
to prove petitioners minority which was never challenged by

46

the prosecution and it already formed part of the records of the

case. The rule referred to in the Bravo case was Section 7 of
Rule 133 of the Rules of Court which provides:
Section 7. Evidence on motion.- When a motion is based on
facts not appearing of record, the court may hear the matter on
affidavits or depositions presented by the respective parties,
but the court may direct that the matter be heard wholly or
partly on oral testimony or depositions.
and not Section 34 of Rule 132 of the Rules of Court which is
the one applicable to the present case.
Even assuming arguendo that the documentary evidence of
petitioner should be considered in his favor, the evidence
showing that respondent had filed civil and criminal cases
against petitioner which were dismissed as well as the alleged
Special Power of Attorney of petitioners parents whereby they
authorized petitioner to stay in the ground floor of the house,
did not establish co-ownership of Florentino and respondent of
the subject house.

We likewise affirm the CAs award of attorneys fees in favor of

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

The testimonies of petitioner and his witnesses failed to show

that the subject house is co-owned by petitioners father and
respondent.
Candelario Regua merely testified that he was hired by
petitioners father, Florentino, to construct the residential
building in 1972;24 that he listed the materials to be used for the
construction which was purchased by Florentino;25 that he and
his men received their salaries every Saturday and Wednesday
from Florentino or his wife, respectively; 26 that he had not met
nor seen respondent during the whole time the construction
was on-going.27 On cross-examination, however, he admitted
that he cannot tell where the money to buy the materials used
in the construction came from.28
Corazon Garcia merely testified that Florentino started building
the house when he was allocated a lot at DPS compound, that
she knew Florentino constructed the subject house29 and never
knew respondent. 30 The bare allegation that Florentino was
allocated a lot is not sufficient to overcome Florentinos own
affidavit naming respondent as the owner of the subject house.
Petitioner himself testified that it was his father who saw the
progress of the construction and purchased the materials to be
used; 31 and as a young boy he would follow-up some
deliveries upon order of his father 32 and never saw respondent
in the construction site. The fact that not one of the witnesses
saw respondent during the construction of the said house does
not establish that petitioners father and respondent co-owned
the house.
We also find that the CA did not err in ordering petitioner to pay
respondent being the sole owner of the subject house a
monthly rental of P2,000.00 from April 1988, the date of the
extra-judicial demand, until petitioner actually vacates the
subject house. Although the CA made no ratiocination as to
how it arrived at the amount of P2,000.00 for the monthly
rental, we find the same to be a reasonable compensation for
the use of the ground floor of the subject house which consists
of a living room, a dining room, a kitchen and three bedrooms.
The rental value refers to the value as ascertained by proof of
what the property would rent or by evidence of other facts from
which the fair rental value may be determined. 33

47

share, was subdivided only into three shares and distributed

among her children with Bernardo, i.e., Susana, Castor, and
Benedicta.
G.R. No. 179540

March 13, 2009

PERFECTA CAVILE, JOSE DE LA CRUZ and RURAL BANK

OF
BAYAWAN,
INC.,
Petitioners,
vs.
JUSTINA LITANIA-HONG, accompanied and joined by her
husband, LEOPOLDO HONG and GENOVEVA LITANIA,
Respondents.
DECISION
CHICO-NAZARIO, J.:
Before us is a Petition for Review on Certiorari 1 under Rule 45
of the Rules of Court, which seeks to reverse and set aside the
Decision2 dated 8 March 2007 and the Resolution 3 dated 3
September 2007 of the Court of Appeals in CA-G.R. CV No.
66873. The assailed Decision of the appellate court reversed
and set aside the Decision4 dated 29 February 2000 of the
Regional Trial Court (RTC) of Negros Oriental, Branch 35, in
Civil Case No. 6111, dismissing the complaint of respondents
Justina Litania-Hong, her husband Leopoldo Hong, and her
sister Genoveva Litania; and declaring petitioner spouses
Perfecta Cavile and Jose de la Cruz to be the absolute owners
of the parcels of land subjects of this case. The assailed
Resolution of the appellate court denied petitioner spouses
Motion for Reconsideration of its decision.
The factual and procedural antecedents of the case proceed as
follows:
On 5 April 1937, a Deed of Partition 5 was entered into by the
heirs of the spouses Bernardo Cavile and Tranquilina Galon.
Said heirs included the legitimate children of Bernardo and
Tranquilina, namely, (1) Susana Cavile, (2) Castor Cavile, and
(3) Benedicta Cavile; as well as the children of Bernardo by his
previous marriages, specifically: (4) Simplicia Cavile, (5)
Fortunato Cavile, and (6) Vevencia Cavile.6 Subject of the
Deed of Partition were several parcels of land situated in the
Municipality of Tolong, Negros Oriental, which were then
covered by Tax Declarations No. 5615, No. 5729, No. 7143,
No. 7421 and No. 7956, all under the name of Bernardo.
Of particular interest in this case are the lots covered by Tax
Declarations No. 7421 and No. 7956. The lot covered by Tax
Declaration No. 7421 was described in the Deed of Partition as
"bounded on the North by Simplicio Cavile antes Roman
Echaves, on the East by Rio Bayawan, on the South by
Riachuelo Napasu-an, and on the West by Riachuelo Napasuan y Julian Calibug antes Francisco Tacang." The lot covered
by Tax Declaration No. 7956 was identified to be the one
"bounded on the North by Hilario Navaro, on the East by
Silverio Yunting, on the South by Fortunato Cavile, and on the
West by Maximiano Balasabas."
In accordance with the Deed of Partition, the conjugal
properties of Bernardo and Tranquilina were divided into two
parts. The first part, corresponding to Bernardos share, was
further divided into six equal shares and distributed among his
six heirs. The second part, corresponding to Tranquilinas

Also stated in the Deed of Partition was the sale by the other
aforementioned legal heirs to their co-heir Castor of their
aliquot shares in the lots covered by Tax Declarations No.
7143, No. 7421, and No. 7956; thus, making Castor the sole
owner of the said properties. Similarly, the Deed of Partition
acknowledged the sale by all the legal heirs to Ulpiano Cavile
of their respective shares in the lot covered by Tax Declaration
No. 5729, thus, transferring to the latter absolute ownership of
said parcel of land.
Thereafter, on 5 August 1960, Castor and Susana executed a
Confirmation of Extrajudicial Partition,7 whereby Castor
recognized and confirmed that the lots covered by Tax
Declarations No. 2039 and No. 2040 were the just and lawful
shares of Susana in the properties left by their deceased
parents Bernardo and Tranquilina, and that Susana was in
actual possession of the said properties. According to the
Confirmation of Extrajudicial Partition, the lot covered by Tax
Declaration No. 2039 was "bounded on the North by Simplicio
Cavile, on the East by Rio Bayawan, on the South by Napasuan, and on the West by Napasu-an Creek and Julian Calibog;"
while the one covered by Tax Declaration No. 2040 was
"bounded on the North by Hilario Navvaro (sic), on the South
by Fortunato Cavile, on the East by Silverio Yunting, and on
the West by Maximino (sic) Balasabas."
The descriptions of the lots covered by Tax Declarations No.
2039 and No. 2040 in the Confirmation of Extrajudicial Partition
were strikingly close to those of the lots covered by Tax
Declarations No. 7421 and No. 7956, respectively, in the Deed
of Partition.
Fourteen years after the execution of the Confirmation of
Extrajudicial Partition in 1960, respondents filed on 23
December 1974 a Complaint for Reconveyance and Recovery
of Property with Damages before the RTC against Perfecta
Cavile, the daughter of Castor, Jose de la Cruz, the husband of
Perfecta (hereinafter petitioner spouses), and the Rural Bank
of Bayawan, Inc. The Complaint was docketed as Civil Case
No. 6111.8
Respondents averred in the Complaint that respondents
Justina and Genoveva inherited two parcels of land, covered
by Tax Declarations No. 07408 and No. 07409 (subject lots), 9
from their mother Susana, who, in turn, inherited the same
from her parents Bernardo and Tranquilina. Respondents
invoked the Confirmation of Extrajudicial Partition dated 5
August 1960 wherein Castor purportedly recognized Susanas
ownership of the subject lots. Susana had enjoyed undisputed
ownership and possession of the subject lots, paying the realty
taxes due and introducing improvements thereon. Susana was
even able to obtain a loan from the Rural Bank of Dumaguete
City sometime in 1960, mortgaging the subject lots as security
for the same.
After Susanas death in 1965, the subject lots were inherited by
her daughters, respondents Justina and Genoveva, who then
assumed the mortgage thereon. However, respondents alleged
that Castor and petitioner spouses eventually intruded upon
and excluded respondents from the subject lots. When Castor
died in 1968, petitioner spouses continued their unlawful
occupancy of the subject lots, planting on the same and

48

harvesting the products. Respondents claimed that they

exerted efforts to settle the matter, but petitioner spouses
stubbornly refused to accede. In 1974, prior to the filing of the
Complaint, respondents again sought an audience with
petitioner spouses, yet the latter only presented to them the
Original Certificates of Title (OCTs) No. FV-4976, 10 No. FV4977,11 and No. FV-497812 covering the subject lots, issued by
the Registry of Deeds for the Province of Negros Oriental, on 9
October 1962, in the name of petitioner Perfecta. Respondents
were, thus, constrained to institute Civil Case No. 6111 against
petitioner spouses and the Rural Bank of Bayawan, Inc.,
seeking the cancellation of the OCTs in the name of petitioner
Perfecta or, alternatively, the reconveyance by petitioner
spouses of the subject lots to respondents, plus award for
damages. The Rural Bank of Bayawan, Inc. was impleaded as
a defendant in the Complaint since petitioner spouses
mortgaged the subject lots in its favor as security for a loan in
the amount of P42,227.50. However, the bank was later
dropped as a party after the aforesaid loan was settled.
Petitioner spouses countered in their Answer to the Complaint
that, by virtue of the Deed of Partition dated 5 April 1937, the
heirs of both Bernardo and Tranquilina took exclusive
possession of their respective shares in the inheritance. Castor
fully possessed the lots covered by Tax Declarations No. 7143,
No. 7421 and No. 7956, after his co-heirs sold to him their
shares therein. In 1962, Castor sold to petitioner Perfecta the
lots covered by Tax Declarations No. 7421 and No. 7956,
which corresponded to the subject lots in the Complaint.
Following the sale, petitioner Perfecta took possession of the
subject lots and filed with the Bureau of Lands an application
for the issuance of title over the same. The Bureau issued free
patent titles over the subject lots in favor of petitioner Perfecta
and, by virtue thereof, she was able to secure on 9 October
1962, OCTs No. FV-4976, No. FV-4977, and No. FV-4978 in
her name.
Petitioner spouses asserted that the Confirmation of
Extrajudicial Partition dated 5 August 1960 involving the
subject lots was a nullity since said properties were never
owned nor adjudicated in favor of Susana, respondents
predecessor-in-interest. Castor and Susana executed the
Confirmation of Extrajudicial Partition merely to accommodate
the latter who then needed security for the loan she was trying
to obtain from the Rural Bank of Dumaguete City. Respondents
would not be able to deny the said accommodation
arrangement, given that neither Susana nor respondents
actually possessed the subject lots or applied for titles thereto.
Respondents did not even know that the subject lots were
divided into three lots after a Government survey. If Susana
and respondents paid realty taxes for the subject lots, it was
only to convince the Rural Bank of Dumaguete to renew their
loan from year to year, secured as it was by the mortgage on
the subject lots. Thus, petitioner spouses posited that no
ownership could then be transferred to respondents after
Susanas death.
Trial in Civil Case No. 6111 thereafter ensued before the
RTC.13
On 29 February 2000, the RTC promulgated its Decision, with
the following dispositive portion:
WHEREFORE, premises considered, judgment is hereby
rendered declaring [herein petitioner spouses] as the absolute
owners over the parcels of land in litigation. Consequently,

[herein respondents] complaint is ordered dismissed.

[Respondents] counterclaim is likewise entered dismissed for
lack of merit.14
The RTC ruled that the petitioner spouses evidence was more
worthy of credence in establishing their ownership of the
subject lots. As petitioner Perfecta testified before the RTC,
Castor immediately took possession of the subject lots after the
Deed of Partition was executed in 1937. This fact was
supported by the unrebutted testimony of Luciana Navarra,
petitioner Perfectas cousin, who declared that her husband
was petitioner Perfectas tenant on the subject lots since 1947
and that respondents never actually occupied the said
properties. The RTC observed that it was highly questionable
and contrary to human experience that respondents waited
nine long years after their ejection from the subject lots in 1965
before taking any legal step to assert their rights over the
same.
The RTC further subscribed to the testimony of Perfecta that
the Confirmation of Extrajudicial Partition was executed by
Castor solely to accommodate Susana, enabling her to obtain
a bank loan using the subject lots as collateral. It noted that
Susana did not bother to apply for the issuance of title to the
subject lots in her name. Contrarily, it was Perfecta who
applied for and obtained title to the subject lots, which,
surprisingly, respondents were not even aware of. The RTC
found that the contemporaneous and subsequent acts of the
parties after the execution of the Confirmation of Extrajudicial
Partition evidently demonstrated their intention to merely
accommodate Susana in her loan application. Hence, the RTC
concluded that the Confirmation of Extrajudicial Partition was a
simulated contract which was void and without any legal effect.
Without seeking a reconsideration of the above RTC Decision,
respondents challenged the same by way of appeal before the
Court of Appeals, docketed as CA-G.R. CV No. 66873.
On 8 March 2007, the Court of Appeals rendered the assailed
Decision in favor of respondents, the decretal portion of which
provides:
WHEREFORE, the assailed decision is REVERSED AND SET
ASIDE and a new one entered ORDERING [herein petitioner
spouses] and/or their heirs, assigns and representatives as
follows:
1. To reconvey to [herein respondents] the possession
and title to the litigated parcels of land.
2. Upon reconveyance of the litigated properties, the
Register of Deeds of Dumaguete City is ordered to
cancel Certificate of Title No. 4877 (sic), 4976 and
4978 and to issue a new certificate to [respondents] or
their successors in interest.
3. With costs against [petitioner spouses].15
The Court of Appeals agreed in the respondents contention
that the Confirmation of Extrajudicial Partition was not a
simulated document. The said document should be entitled to
utmost respect, credence, and weight as it was executed by
and between parties who had firsthand knowledge of the Deed
of Partition of 1937. Moreover, the Confirmation of Extrajudicial
Partition constituted evidence that was of the highest probative

49

value against the declarant, Castor, because it was a

declaration against his proprietary interest. Other than
petitioner Perfectas testimony, the appellate court found no
other proof extant in the records to establish that the
Confirmation of Extrajudicial Partition was a simulated
document or that it did not express the true intent of the
parties. The Court of Appeals likewise highlighted the fact that
Castor did not attempt to have the subject lots declared in his
name during his lifetime and that petitioner Perfecta herself
admitted that she only started paying real estate taxes for the
subject lots in 1993. It was Susana and, later, her children,
respondents Justina and Genoveva, who had been paying for
the realty taxes on the subject lots since 1937.
Petitioner spouses filed a Motion for Reconsideration16 of the
foregoing Decision, but it was denied by the Court of Appeals
in a Resolution17 dated 3 September 2007.
Petitioner spouses filed the instant Petition, raising the
following issues for the Courts consideration:
I.
WHETHER [OR NOT] THE HONORABLE COURT OF
APPEALS ACTED IN ACCORDANCE WITH LAW IN RULING
THAT EXTRANEOUS EVIDENCE IN THE FORM OF AN
AFFIDAVIT, THE "CONFIRMATION OF EXTRAJUDICIAL
PARTITION," MAY BE ADMITTED IN EVIDENCE TO VARY
THE TERMS OF A JUDICIALLY DECLARED VALID
AGREEMENT ENTITLED "DEED OF PARTITION"?
II.
WHETHER [OR NOT] THE HONORABLE COURT OF
APPEALS COMMITTED A LEGAL ERROR IN NOT
DISMISSING THE COMPLAINT ON THE GROUND OF RES
JUDICATA?
III.
WHETHER [OR NOT] THE COMPLAINT FILED BY THE
RESPONDENTS SHOULD BE DISMISSED ON THE
GROUND OF FORUM-SHOPPING?
IV.
WHETHER [OR NOT] THE FREE PATENT TITLES ISSUED
TO THE PETITIONERS MAY BE RECONVEYED TO THE
RESPONDENTS?18
Essentially, the Court finds that the fundamental issue that
must be settled in this case is who, among the parties herein,
have the better right to the subject lots.
The Court notes prefatorily that in resolving the present case,
an examination of the respective evidence of the parties must
necessarily be undertaken. Although the jurisdiction of the
Court in a petition for review on certiorari under Rule 45 of the
Rules of Court is limited to reviewing only errors of law, we find
that an exception19 to this rule is present in the instant case in
that the Court of Appeals made findings of fact which were
contrary to those of the RTC.

Before proceeding, the Court further establishes as a foregone

fact, there being no issue raised on the matter, that the subject
lots covered by Tax Declarations No. 07408 and No. 07409
described in the Complaint in Civil Case No. 6111 are the very
same lots covered by Tax Declarations No. 7956 and No. 7421
included in the Deed of Partition, and by Tax Declarations No.
2040 and No. 2039 subject of the Confirmation of Extrajudicial
Partition.
Respondents, as plaintiffs before the RTC in Civil Case No.
6111, sought the reconveyance and recovery of the subject lots
purportedly illegally usurped by petitioner spouses who
succeeded in having the same titled in the name of petitioner
Perfecta. Respondent Justina testified in open court that the
subject lots were inherited by her and co-respondent
Genovevas mother, Susana, from their grandparents,
Bernardo and Tranquilina.20 As proof of Susanas ownership of
the subject lots, respondents presented the Confirmation of
Extrajudicial Partition executed on 5 August 1960 by Castor
and Susana. In said document, Castor ostensibly recognized
and confirmed Susanas ownership and possession of the
subject lots.21 Tax declarations22 covering the subject lots in the
names of Susana and respondents were also offered to the
court a quo to lend support to respondents claims of
ownership.
On the other hand, to prove their entitlement to the subject lots,
petitioner spouses presented before the RTC the Deed of
Partition23 entered into by the heirs of spouses Bernardo and
Tranquilina on 5 April 1937. By virtue thereof, Castor acquired
through sale the shares of his co-heirs in the subject lots.
Petitioner Perfecta testified before the trial court that right after
the execution of said Deed, she and her father, Castor,
assumed possession of the subject lots, planting coconuts,
rice, and corn thereon.24 She additionally testified that realty
taxes on the subject lots had since been paid by Castor and,
subsequently, by her.25 Possession of the subject lots by
Castor and petitioner spouses was corroborated by the
testimony of Luciana Navarra, who insisted that respondents
never occupied the said lots.26 Finally, petitioner spouses
presented OCTs No. FV-4976, No. FV-4977, and No. FV-4978,
covering the subject lots, issued by the Registry of Deeds for
the Province of Negros Oriental on 9 October 1962 in the name
of petitioner Perfecta.
After a careful evaluation of the evidence adduced by the
parties in the instant case, the Court rules in favor of petitioner
spouses.
At this point, let it be stated that the validity and due execution
of the Deed of Partition executed in 1937 is not directly
assailed in this case, thus, the Court need not pass upon the
same. Under the said Deed of Partition, the other heirs of
Bernardo and Tranquilina clearly and unequivocally sold their
shares in the subject lots to Castor, petitioner Perfectas father.
What appeared to be the clear right of ownership of Castor
over the subject lots was put in doubt by the execution of the
Confirmation of Extrajudicial Partition by Castor and his sister
Susana in 1960. Respondents, children and heirs of Susana,
base their claim of ownership of the subject lots on the said
document, while petitioner spouses denounce the same to be
simulated, executed for purposes other than to transfer
ownership of the subject lots, and cannot legally alter the terms
of the previously duly executed Deed of Partition.

50

As held by the Court of Appeals, the Confirmation of

Extrajudicial Partition partakes of the nature of an admission
against a persons proprietary interest.27 As such, the same
may be admitted as evidence against Castor and petitioner
spouses, his successors-in-interest. The theory under which
declarations against interest are received in evidence,
notwithstanding that they are hearsay, is that the necessity of
the occasion renders the reception of such evidence advisable
and, further, that the reliability of such declaration asserts facts
which are against his own pecuniary or moral interest.28
Nevertheless, the Confirmation of Extrajudicial Partition is just
one piece of evidence against petitioner spouses. It must still
be considered and weighed together with respondents other
evidence vis--vis petitioner spouses evidence. In civil cases,
the party having the burden of proof must establish his case by
a preponderance of evidence. "Preponderance of evidence" is
the weight, credit, and value of the aggregate evidence on
either side and is usually considered to be synonymous with
the term "greater weight of the evidence" or "greater weight of
the credible evidence." "Preponderance of evidence" is a
phrase which, in the last analysis, means probability of the
truth. It is evidence which is more convincing to the court as
worthy of belief than that which is offered in opposition
thereto.29 Rule 133, Section 1 of the Rules of Court provides
the guidelines in determining preponderance of evidence, thus:
In civil cases, the party having the burden of proof must
establish his case by a preponderance of evidence. In
determining where the preponderance or superior weight of
evidence on the issues involved lies, the court may consider all
the facts and circumstances of the case, the witnesses
manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which they are testifying,
the nature of the facts to which they testify, the probability or
improbability of their testimony, their interest or want of interest,
and also their personal credibility so far as the same may
legitimately appear upon the trial. The court may also consider
the number of witnesses, though the preponderance is not
necessarily with the greater number.
Herein, despite the admission made by Castor in the
Confirmation of Extrajudicial Partition against his own interest,
the Court is still convinced that the evidence adduced by the
petitioner spouses preponderated over that of the respondents.
In analyzing the two vital documents in this case, the Court
discerns that while the Deed of Partition clearly explained how
Castor came to fully own the subject lots, the Confirmation of
Extrajudicial Partition, even though confirming Susanas
ownership of the subject lots, failed to shed light on why or how
the said properties wholly pertained to her when her parents
Bernardo and Tranquilina clearly had other heirs who also had
shares in the inheritance.
Other than the Confirmation of Extrajudicial Partition,
respondents were only able to present as evidence of their title
to the subject lots tax declarations covering the same,
previously, in the name of Susana and, subsequently, in their
own names. We find such tax declarations insufficient to
establish respondents ownership of the subject lots. That the
disputed property has been declared for taxation purposes in
the name of any party does not necessarily prove ownership.
Jurisprudence is consistent that tax declarations are not
conclusive evidence of ownership of the properties stated
therein. A disclaimer is even printed on the face of such tax

declarations that they are "issued only in connection with real

property taxation [and] should not be considered as title to the
property." At best, tax declarations are indicia of possession in
the concept of an owner.30 Conversely, non-declaration of a
property for tax purposes does not necessarily negate
ownership.31
On the other hand, the Court is at a loss as to how the Court of
Appeals failed to give due consideration to the Torrens titles
issued in the name of petitioner Perfecta when it rendered its
assailed Decision.
Sometime in 1962, petitioner Perfecta applied for and was
granted by the Bureau of Lands free patents over the subject
lots. Pursuant thereto, Original Certificates of Title No. FV4976, No. FV-4977, and No. FV-4978, covering the subject
lots, were issued by the Registry of Deeds for the Province of
Negros Oriental, on 9 October 1962, in the name of petitioner
Perfecta. Given this crucial fact, the Court pronounces that
respondents Complaint for reconveyance of the subject lots
and damages filed only on 23 December 1974 is already
barred.
A Torrens title issued on the basis of the free patents become
as indefeasible as one which was judicially secured upon the
expiration of one year from date of issuance of the patent. 32
However, this indefeasibility cannot be a bar to an investigation
by the State as to how such title has been acquired, if the
purpose of the investigation is to determine whether or not
fraud has been committed in securing the title. Indeed, one
who succeeds in fraudulently acquiring title to public land
should not be allowed to benefit from it.33
On this matter, Section 101 of Commonwealth Act No. 141 34
provides that all actions for the reversion to the government of
lands of the public domain or improvements thereon shall be
instituted by the Solicitor General or the officer acting in his
stead, in the proper courts, in the name of the Commonwealth
[now Republic] of the Philippines. Such is the rule because
whether the grant of a free patent is in conformity with the law
or not is a question which the government may raise, but until it
is so raised by the government and set aside, another claiming
party may not question it. The legality of the grant is a question
between the grantee and the government.35 Thus, private
parties, like respondents in the instant case, cannot challenge
the validity of the patent and the corresponding title, as they
had no personality to file the suit.
Although jurisprudence recognizes an exception to this case,
the respondents may not avail themselves of the same.
Verily, an aggrieved party may still file an action for
reconveyance based on implied or constructive trust, which
prescribes in 10 years from the date of the issuance of the
Certificate of Title over the property, provided that the property
has not been acquired by an innocent purchaser for value. An
action for reconveyance is one that seeks to transfer property,
wrongfully or fraudulently registered by another, to its rightful
and legal owner.36 If the registered owner, be he the patentee
or his successor-in-interest to whom the free patent was
transferred, knew that the parcel of land described in the patent
and in the Torrens title belonged to another, who together with
his predecessors-in-interest had been in possession thereof,
and if the patentee and his successor-in-interest were never in
possession thereof, the true owner may bring an action to have
the ownership of or title to the land judicially settled. The court

51

in the exercise of its equity jurisdiction, without ordering the

cancellation of the Torrens titled issued upon the patent, may
direct the defendant, the registered owner, to reconvey the
parcel of land to the plaintiff who has been found to be the true
owner thereof.37
In the instant case, respondents brought the action for
reconveyance of the subject lots before the RTC only on 23
December 2004, or more than 12 years after the Torrens titles
were issued in favor of petitioner Perfecta on 9 October 1962.
The remedy is, therefore, already time-barred.
And even if respondents Complaint was filed on time, the
Court would still rule that respondents failed to satisfactorily
prove that they were in possession of the subject lots prior to
the grant of free patents and issuance of Torrens titles over the
same in favor petitioner Perfecta. The bare testimony of
respondent Justina that Susana had been in the peaceful and
undisturbed possession of the subject lots since 1937 up to the
time of her death in 1965 was entirely bereft of substantiation
and details. No information was provided as to how said
possession of the subject lots was actually exercised or
demonstrated by Susana. In contrast, the possession of the
subject lots by Castor, and later on by petitioner spouses, was
established not just by the testimony of petitioner Perfecta, but
was corroborated by the testimony of Luciana Navarra, whose
husband was a tenant working on the subject lots. Petitioner
spouses possessed the subject lots by planting thereon
coconuts, rice, and corn - a claim which respondents were
unable to refute.
Furthermore, respondents allegation that petitioner Perfecta
committed fraud and breach of trust in her free patent
application is specious. The fact that the document evidencing
the sale of the subject lots by Castor to petitioner Perfecta was
not presented does not automatically mean that said contract
was never in existence. Also undeserving of much
consideration without sufficient proof is respondents averment
that the subject lots were private lands which could no longer
be granted to any person via free patent. Respondents ought
to remember that mere allegation of fraud is not enough.
Specific, intentional acts to deceive and deprive another party
of his right, or in some manner injure him, must be alleged and
proved.38 Also, the issuance by Bureau of Lands of free patents
over the subject property to petitioner Perfecta enjoys the
presumption of regularity.
WHEREFORE, premises considered, the Petition for Review
under Rule 45 of the Rules of Court is hereby GRANTED. The
assailed Decision dated 8 March 2007 and Resolution dated 3
September 2007 of the Court of Appeals in CA-G.R. CV No.
66873 are hereby REVERSED AND SET ASIDE. The Decision
dated 29 February 2000 of the RTC of Negros Oriental, Branch
35, in Civil Case No. 6111 is hereby REINSTATED. No costs.
SO ORDERED.

52

Surveyor, Geodetic Engineer Mariano D. Singson. This was

likewise approved by the Bureau of Lands on October 1, 1982.7
On September 16, 1984, Cristobal Ducat filed an Application
for Free Patent over the land with the Bureau of Lands of La
Trinidad (Records, p. 173). The application was granted and
accordingly, on November 14, 1984, the Office of the Register
of Deeds of Benguet under the National Land Titles and Deeds
Registration issued OCT No. P-1390 registering the land with
an area of "49 arcas and 92 centares" (Lot No. 22) in the
names of the Spouses Cristobal Ducat and Flora Kiong.8
Cristobal Ducat subsequently declared the property in his
name for taxation purposes.9

G.R. No. 159284

January 27, 2009

HEIRS OF BERNARDO ULEP namely: Dolores Ulep,

Bernardo Ulep, Jr., Jaime Ulep and Jean Ulep Estrera all
represented
by
Dolores
Ulep,
Petitioners,
vs.
SPOUSES CRISTOBAL DUCAT and FLORA KIONG,
Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
This resolves the petition for review on certiorari under Rule 45
of the Rules of Court, praying that the Decision1 of the Court of
Appeals (CA) dated October 30, 2002, and the CA Resolution2
dated July 3, 2003, denying petitioner's motion for
reconsideration, be reversed and set aside.
The factual antecedents of the
summarized by the CA as follows.

case

are

accurately

The subject matter of the instant action is a parcel of

agricultural land with an area of 4,992 square meters located at
Barrio Buyagan, Poblacion, La Trinidad, Benguet [with an
assessed value of P15,970.003] which, as shown by the
records, was previously described as Lot No. 4 in a Survey
Plan (Psu-206496) prepared for Agustin Ulep on April 4, 1964
by Private Land Surveyor Mariano D. Singson which was
approved by the Bureau of Lands on June 3, 1964.4
On June 1, 1964, prior to the approval of the Survey Plan,
Agustin Ulep and herein petitioner Cristobal Ducat executed an
Agreement whereby the latter agreed and undertook, to cause
and perform the conduct of all the necessary procedures for
the registration and acquisition of title over several parcels of
land possessed and occupied by the former in the concept of
an owner, which include the land in dispute. 5 Before Cristobal
Ducat was able to accomplish his task of acquiring titles over
the lands for and in behalf of Agustin Ulep, the latter died. After
the death of Agustin Ulep, his son Cecilio Ulep took over as
administrator of the properties.6
Cristobal Ducat continued working to acquire titles for the lands
of Agustin Ulep. Thereafter, the land in dispute (Lot No. 4) was
reflected and now referred to as Lot No. 22 in an Amended
Survey Plan (Psu-206496-Amd) prepared for Cristobal Ducat,
et al., on November 28-30, 1981 by the same Private Land

On November 11, 1994, the heirs of Bernardo Ulep, namely:

Dolores, Bernardo, Jr., Jaime and Jean, filed the herein
Complaint for the reconveyance of the land with damages
against the Spouses Cristobal Ducat and Flora Kiong before
the MTC of La Trinidad. In essence, plaintiffs maintain that the
4,992 square meter parcel of land in dispute is owned by their
grandfather Agustin Ulep, the same being a portion of a 24,
388 square meter tract of land which belonged to the latter.
Allegedly, Cristobal Ducat fraudulently maneuvered and
caused the improper amendment of the Original Survey Plan
(Psu-206496) to alter the description of the land from Lot No. 4
to Lot No. 22, claimed and ultimately succeeded in having said
property registered in his name and that of his wife under OCT
No. P-1390.10
On December 17, 1998, after trial on the merits, the MTC of La
Trinidad rendered judgment in favor of the Spouses Cristobal
Ducat and Flora Kiong, disposing as follows:
WHEREFORE, the complaint is hereby ordered dismissed, for
failure of the plaintiffs to prove their cause of action by
competent and preponderant evidence. On the other hand, the
compulsory counterclaims alleged by the defendants in their
Answer are likewise denied, for lack of merit. Costs against
plaintiffs.
SO ORDERED.11
Plaintiffs appealed the ruling of the MTC to the court a quo
(RTC, Branch 10). Once again, the Spouses Cristobal Ducat
and Flora Kiong prevailed as on September 30, 1999, a
Decision was rendered affirming in toto the MTC Judgment.12
Plaintiffs' subsequent Motion for Reconsideration was denied
[by the] court a quo in an Order issued on December 6, 1999
on the ground that the same was filed beyond the reglementary
period provided under Rule 37 of the Rules on Civil Procedure.
xxx
Thereafter, plaintiffs filed a Motion to Resolve Motion for
Reconsideration on the Merits.13
On May 24, 2000, the court a quo issued the herein assailed
Resolution reconsidering its September 30, 1999 Decision and,
accordingly, reversed the December 7, 1998 MTC Judgment,
and ordered the Spouses Cristobal Ducat and Flora Kiong to
reconvey the disputed property to the plaintiffs and to pay the
latter damages and attorney's fees.14

53

The spouses Cristobal Ducat and Flora Kiong, herein

respondents, then filed a petition for review with the CA,
questioning the Resolution of the RTC dated May 24, 2000.
The CA ruled in favor of respondents, holding that petitioners
failed to discharge the burden of proof to establish that
respondents wrongfully or erroneously acquired title over the
disputed property. On October 30, 2002, the CA promulgated
the Decision subject of this petition, disposing as follows:
WHEREFORE, premises considered, the petition is GRANTED
and the assailed Resolution is hereby REVERSED and SET
ASIDE. The decision of the MTC of La Trinidad is
REINSTATED.
SO ORDERED.15
Petitioners moved for reconsideration, but the CA denied said
motion per Resolution dated July 3, 2003.
Hence, herein petition submitting the following questions for
resolution, to wit:
(a) Did the respondents use Exhibit "D-2", the
tampered Waiver of Rights in order to obtain title over
the disputed lot?
(b) Can respondents' reliance on Exhibit "10", the
Transfer of Rights and Improvements executed by
Cecilio Ulep and Dionisio Ulep without the
participation of the heirs by Bernardo Ulep, justify the
respondents' act of obtaining title over the subject
property?
(c) In the assessment of the validity of a document to
transfer a right (Exhibit "10"), is the determination of
the RTC of the existence or non-existence of an extrajudicial settlement among heirs considered evidence
on appeal?
(d) Whether or not documentary evidence that is not
identified, authenticated and formally offered
constitutes evidence at all?

The general rule is that questions of fact are beyond the

province of Rule 45 of the Rules of Court. Said rule, however,
admits of certain exceptions, to wit:
(1) when the factual findings of the Court of
Appeals and the trial court are contradictory;
(2) when the findings are grounded entirely on
speculations, surmises, or conjectures;
(3) when the inference made by the Court of Appeals
from its findings of fact is manifestly mistaken, absurd,
or impossible;
(4) when there is grave abuse of discretion in the
appreciation of facts;
(5) when the appellate court, in making its findings,
goes beyond the issues of the case, and such findings
are contrary to the admissions of both appellant and
appellee;
(6) when the judgment of the Court of Appeals is
premised on a misapprehension of facts;
(7) when the Court of Appeals fails to notice certain
relevant facts which, if properly considered, will justify
a different conclusion;
(8) when the findings of fact are themselves
conflicting;
(9) when the findings of fact are conclusions without
citation of the specific evidence on which they are
based; and
(10) when the findings of fact of the Court of Appeals
are premised on the absence of evidence but such
findings are contradicted by the evidence on record.
(Emphasis supplied) 19
This case falls within exceptions (1) and (7).

(e) Did the Court of Appeals commit a very grave error

when it reversed the Resolution of the RTC and
reinstated the decision of the MTC?16
It is well-settled that in order for an action for reconveyance
based on fraud to succeed, the party seeking reconveyance
must prove by clear and convincing evidence his title to
the property and the fact of fraud.17
Clearly, the primordial issue in the present petition is whether
the CA committed an error in ruling that petitioners had failed to
prove their allegation that respondents fraudulently caused the
titling of the subject property in their names.
The issue is mainly factual and, as a general rule, questions of
fact cannot be raised in a petition for review on certiorari under
Rule 45 of the Rules of Court. However, as held in Republic v.
Enriquez,18 to wit:

After examination of the evidence adduced, the Court finds no

merit to the petition.
Petitioners insist that Exhibit "D-2,"20 the Waiver of Rights and
Quitclaim containing some erasures and alterations, is proof of
the fraud perpetrated by respondents to obtain title to the land
in dispute. Without the erasures and alterations, paragraph 4 of
said document stated that Lot 4 and an undivided 6,346square meter portion of Lot 3 shall belong to and shall be titled
in the name of Bernardo Ulep. In Exhibit "D-2," because of
some erased portions, the import of paragraph 4 thereof
changed, such that only Lot 3 shall belong to and shall be titled
in the name of Bernardo Ulep. As the RTC aptly pointed out in
its Resolution dated May 24, 2000, Exhibit "D-2," even with
its erasures and alterations, did not dispose of Lot 4 in
favor of respondents.
Petitioners aver that by virtue of Exhibit "D-2," respondent
Cristobal Ducat was able to cause the amendment of the
survey plan, making it appear that Lot 4, later designated as

54

Lot 22 in the amended survey, had no claimant. The Court

notes however, that even Cecilio Ulep and Dionisio Ulep, coheirs and siblings of Bernardo Ulep, executed an affidavit
stating that they were requesting the amendment of Survey
Plan Psu-206496 "in order to delineate the roads-right-of-way,
and indicate certain actual occupants of the land who may be
entitled to their respective lots."21 This affidavit negates
petitioners' claim that the amendment of the survey plan was
effected solely by respondents to effect the fraudulent titling of
the property in the latters name.

Mathew
L.
Deputy Prov'l. & Mun. Assessor

TAN-1886-760-6
Provincial Assessor, Deputy Assessor,Mun. Treasurer, Mun.
Mayor,
Notary
Public
or
any
other
person
authorized
to administer oath.
TRANSFEROR'S AFFIDAVIT

Moreover, even assuming that Exhibit "D-2" was instrumental

in making it appear that Lot 4 or Lot 22 had no claimant, said
document could not have been the basis for respondents' claim
of ownership over the property in dispute. Respondents had to
present other clear and convincing evidence to establish
ownership of said lot in the land registration proceedings.
Evidently, Exhibit "D-2" was not the document which proved
respondent's ownership of the land in dispute. The existence of
alterations and erasures on said document, whether caused by
respondents or petitioners' own predecessors-in-interest, is
immaterial, as it does not appear to be the basis for the grant
of the certificate of title in favor of respondents.

Ticag

Res. Certificate No. __________ Province of

Benguet
Dated
_____________________
Municipality
of
La
Trinidad
Issued at ___________________
Personally appeared before me, the undersigned official,
Cecilio J. Ulep & Bernardo J. Ulep who, being duly sworn
according to law, depose and says:

The MTC is correct in holding that the more important

document which proved respondents' ownership of the subject
property is Exhibit "15,"22 the Affidavit of Transfer of Real
Property, subscribed and sworn to before the Deputy Provincial
and Municipal Assessor. Exhibit "15" is reproduced hereunder:

That on the 5th day of March, 1981, he sold/donated to

Cristobal Ducat, a resident of the Municipality of La Trinidad,
Province of Benguet, the real property situated in the Barrio of
Buyagan, Poblacion, Municipality of La Trinidad, Provincia of
Benguet, and described in the records of the Provincial
Treasurer's Office, Province of Benguet under Tax No. 4990
and that the said Cristobal Ducat is now the legal owner of the
abovementioned real property.

Provincial Form No. 9

In testimony whereof he has hereunto affixed his signature.

AFFIDAVIT OF TRANSFER OF REAL PROPERTY

TRANSFEREE'S AFFIDAVIT
Res. Certificate No. _________ Province of
Benguet
Dated ____________________ Municipality
of
La
Trinidad
Issued at __________________
Personally appeared before me, the undersigned official,
Cristobal Ducat/(Name of Transferee) who, being duly sworn
according to law, depose and says:
That
on
the
5th
day
of
March
1981,
he
bought/inherited/received as donation from Cecilio J. Ulep &
Bernardo J. Ulep, a resident of the Municipality of La Trinidad,
Province of Benguet, the real property situated in the Barrio of
Buyagan, Poblacion, Municipality of La Trinidad, Province of
Benguet, and described in the records of the Provincial
Treasurer's Office, Province of Benguet, under Tax No. 4990
and that he is now the legal owner of the said real property.
In testimony whereof he has hereunto affixed his signature.
(signed)
Cristobal Ducat Signature of Transferee
Subscribed and sworn to before me this [illegible] day of Oct.
1981.

(signed)
Cecilio J. Ulep

(signed)
Bernardo J. Ulep

____________________
Signature of Trnasfer
Subscribed and sworn to before me this (illegible) day of Oct.,
1981.
Mathew
L.
Deputy Prov'l. & Mun. Assessor
TAN-1886-760-6
Provincial
Assessor,
Mun.
Treasurer,
Mun.
Public
or
any
other
to administer oath.

Ticag

Deputy
Mayor,
person

Assessor,
Notary
authorized

The upper portion of Exhibit "15" contains the Transferee's

Affidavit executed by respondent Cristobal Ducat, stating that
he bought the subject property from Cecilio Ulep and Bernardo
Ulep, while the lower portion contains the Transferor's
Affidavit executed by Cecilio Ulep and Bernardo Ulep,
stating that on the 5th day of March 1981, they
sold/donated subject property to Cristobal Ducat and said
person is now the legal owner of the same.
Petitioners do not question the authenticity and due execution
of Exhibit "15," but argue that said document should not have
been admitted in evidence and given probative weight, as it
was not offered by respondents. This claim is totally bereft of

55

merit. Respondents' Formal Offer of Documentary Exhibits23

definitely included Exhibit "15," the entire Affidavit of Transfer of
Real Property. It is further noted that respondents' Exhibit "15"
was first presented and offered by petitioners as their Exhibit "I19," to prove that it was one of the papers submitted by
respondents to the Department of Environment and Natural
Resources in support of the application for titling of subject
property. The signature of Bernardo Ulep on said document
was also properly identified, as shown by the testimony of
respondent Cristobal Ducat, to wit:
Q: You remember also if you submitted your
application affidavit or transfer of real property
executed by you and Cecilio & Bernardo Ulep now
marked as Exh. "I-19"?
A: Maybe because I wanted to have the papers
completed.
xxxx
Atty. Bolislis:
May we refer to Exh. "19" [meaning "I-19"] which is
the Affidavit of the transfer of real property dated 30th
day of July, 1981.
xxxx
Q: Were you present when Cecilio Ulep and Bernardo
Ulep signed this?

petitioners' predecessor-in-interest recognized respondents as

the legal owner of the lot in dispute.
Petitioners also question whether Exhibit "10,"27 the Transfer of
Rights and Improvements executed only by Cecilio Ulep and
Dionisio Ulep, can validly transfer the subject property to
respondents. It is true that the lack of participation of Bernardo
Ulep or his heirs in the execution of said document cannot bind
them as parties to said transfer of rights. However, as the Court
has discussed above, there is another document that proves
beyond doubt that Bernardo Ulep has transferred his right over
the disputed lot to Cristobal Ducat, that is, Exhibit "15," the
Affidavit of Transfer of Real Property.
It is also a settled jurisprudence that an issue cannot be raised
for the first time on appeal, as it would be offensive to the basic
rules of fair play, justice and due process.28 Thus, since the
issue of whether the estate of the deceased Agustin Ulep has
been settled or not was raised by petitioners for the first time
on appeal before the RTC, this issue should not be given
consideration.
In sum, the admission against the interest of Bernardo Ulep
goes against the theory of petitioners, and the evidence they
presented is sorely insufficient to overcome said admission.
Thus, there is no proof that the titling of the subject property
was fraudulently obtained by respondents in their names.
WHEREFORE, the petition is DENIED. The Decision of the
Court of Appeals dated October 30, 2002, and the CA
Resolution dated July 3, 2003, are AFFIRMED.
SO ORDERED.

A: Yes sir.
Q: Did you see Bernardo Ulep sign this?
A: Yes sir.
Q: Did you see Cecilio Ulep sign this?
A: Yes sir.24
Verily, therefore, respondents' Exhibit "15" or petitioners'
Exhibit "I-19" was formally offered as evidence by both parties
and properly admitted and considered by the lower courts.
Exhibit "15" is a very solid piece of evidence in favor of
respondents. It constitutes an admission against interest made
by Bernardo Ulep, petitioners' predecessor-in-interest. In
Rufina Patis Factory v. Alusitain,25 the Court elucidated thus:
x x x Being an admission against interest, the documents
are the best evidence which affords the greatest certainty
of the facts in dispute. The rationale for the rule is based on
the presumption that no man would declare anything against
himself unless such declaration was true. Thus, it is fair to
presume that the declaration corresponds with the truth,
and it is his fault if it does not.26
Bernardo Ulep's admission against his own interest is binding
on his heirs, herein petitioners. It is now beyond cavil that

56

By Order of July 4, 2001,3 Branch 130 of the Caloocan RTC,

on the basis of petitioners handwritten note which it treated as
"contractual support" since the issue of Arhbencels filiation had
yet to be determined during the hearing on the merits, granted
Arhbencels prayer for support pendente lite in the amount of
P3,000 a month.
After Arhbencel rested her case, petitioner filed a demurrer to
evidence which the trial court granted by Order dated June 7,
2006,4 whereupon the case was dismissed for insufficiency of
evidence.
The trial court held that, among other things, Arhbencels
Certificate of Birth was not prima facie evidence of her filiation
to petitioner as it did not bear petitioners signature; that
petitioners handwritten undertaking to provide support did not
contain a categorical acknowledgment that Arhbencel is his
child; and that there was no showing that petitioner performed
any overt act of acknowledgment of Arhbencel as his
illegitimate child after the execution of the note.
On appeal by Arhbencel, the Court of Appeals, by Decision of
July 20, 2007,5 reversed the trial courts decision, declared
Arhbencel to be petitioners illegitimate daughter and
accordingly ordered petitioner to give Arhbencel financial
support in the increased amount of P4,000 every 15th and 30th
days of the month, or a total of P8,000 a month.

G.R. No. 181258

March 18, 2010

BEN-HUR
NEPOMUCENO,
Petitioner,
vs.
ARHBENCEL ANN LOPEZ, represented by her mother
ARACELI LOPEZ, Respondent.
DECISION
CARPIO MORALES, J.:
Respondent Arhbencel Ann Lopez (Arhbencel), represented by
her mother Araceli Lopez (Araceli), filed a Complaint1 with the
Regional Trial Court (RTC) of Caloocan City for recognition and
support against Ben-Hur Nepomuceno (petitioner).
Born on June 8, 1999, Arhbencel claimed to have been
begotten out of an extramarital affair of petitioner with Araceli;
that petitioner refused to affix his signature on her Certificate of
Birth; and that, by a handwritten note dated August 7, 1999,
petitioner nevertheless obligated himself to give her financial
support in the amount of P1,500 on the 15th and 30th days of
each month beginning August 15, 1999.
Arguing that her filiation to petitioner was established by the
handwritten note, Arhbencel prayed that petitioner be ordered
to: (1) recognize her as his child, (2) give her support pendente
lite in the increased amount of P8,000 a month, and (3) give
her adequate monthly financial support until she reaches the
age of majority.
Petitioner countered that Araceli had not proven that he was
the father of Arhbencel; and that he was only forced to execute
the handwritten note on account of threats coming from the
National Peoples Army.2

The appellate court found that from petitioners payment of

Aracelis hospital bills when she gave birth to Arhbencel and
his subsequent commitment to provide monthly financial
support, the only logical conclusion to be drawn was that he
was Arhbencels father; that petitioner merely acted in bad faith
in omitting a statement of paternity in his handwritten
undertaking to provide financial support; and that the amount of
P8,000 a month was reasonable for Arhbencels subsistence
and not burdensome for petitioner in view of his income.
His Motion for Reconsideration having been denied by
Resolution dated January 3, 2008,6 petitioner comes before
this Court through the present Petition for Review on
Certiorari.7
Petitioner contends that nowhere in the documentary evidence
presented by Araceli is an explicit statement made by him that
he is the father of Arhbencel; that absent recognition or
acknowledgment, illegitimate children are not entitled to
support from the putative parent; that the supposed payment
made by him of Aracelis hospital bills was neither alleged in
the complaint nor proven during the trial; and that Arhbencels
claim of paternity and filiation was not established by clear and
convincing evidence.
Arhbencel avers in her Comment that petitioner raises
questions of fact which the appellate court had already
addressed, along with the issues raised in the present petition.8
The petition is impressed with merit.
The relevant provisions of the Family Code9 that treat of the
right to support are Articles 194 to 196, thus:
Article 194. Support compromises everything indispensable for
sustenance, dwelling, clothing, medical attendance, education

57

and transportation, in keeping with the financial capacity of the

family.1awph!1
The education of the person entitled to be supported referred
to in the preceding paragraph shall include his schooling or
training for some profession, trade or vocation, even beyond
the age of majority. Transportation shall include expenses in
going to and from school, or to and from place of work.
Article 195. Subject to the provisions of the succeeding articles,
the following are obliged to support each other to the whole
extent set forth in the preceding article:
1. The spouses;

(2) An admission of legitimate filiation in a public

document or a private handwritten instrument and
signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation
shall be proved by:
(1) The open and continuous possession of the status
of a legitimate child; or
(2) Any other means allowed by the Rules of Court
and special laws.
The Rules on Evidence include provisions on pedigree. The
relevant sections of Rule 130 provide:

2. Legitimate ascendants and descendants;

3. Parents and their legitimate children and the
legitimate and illegitimate children of the latter;
4. Parents and their illegitimate children and the
legitimate and illegitimate children of the latter; and
5. Legitimate brothers and sisters, whether of the full
or half-blood.
Article 196. Brothers and sisters not legitimately related,
whether of the full or half-blood, are likewise bound to support
each other to the full extent set forth in Article 194, except only
when the need for support of the brother or sister, being of age,
is due to a cause imputable to the claimant's fault or
negligence. (emphasis and underscoring supplied)
Arhbencels demand for support, being based on her claim of
filiation to petitioner as his illegitimate daughter, falls under
Article 195(4). As such, her entitlement to support from
petitioner is dependent on the determination of her filiation.
Herrera v. Alba10 summarizes the laws, rules, and
jurisprudence on establishing filiation, discoursing in relevant
part as follows:
Laws, Rules, and Jurisprudence
Establishing Filiation
The relevant provisions of the Family Code provide as follows:
ART. 175. Illegitimate children may establish their illegitimate
filiation in the same way and on the same evidence as
legitimate children.
xxxx
ART. 172. The filiation of legitimate children is established by
any of the following:
(1) The record of birth appearing in the civil register or
a final judgment; or

SEC. 39. Act or declaration about pedigree. The act or

declaration of a person deceased, or unable to testify, in
respect to the pedigree of another person related to him by
birth or marriage, may be received in evidence where it
occurred before the controversy, and the relationship between
the two persons is shown by evidence other than such act or
declaration. The word "pedigree" includes relationship, family
genealogy, birth, marriage, death, the dates when and the
places where these facts occurred, and the names of the
relatives. It embraces also facts of family history intimately
connected with pedigree.
SEC. 40. Family reputation or tradition regarding pedigree.
The reputation or tradition existing in a family previous to the
controversy, in respect to the pedigree of any one of its
members, may be received in evidence if the witness testifying
thereon be also a member of the family, either by
consanguinity or affinity. Entries in family bibles or other family
books or charts, engraving on rings, family portraits and the
like, may be received as evidence of pedigree.
This Court's rulings further specify what incriminating acts are
acceptable as evidence to establish filiation. In Pe Lim v. CA, a
case petitioner often cites, we stated that the issue of paternity
still has to be resolved by such conventional evidence as the
relevant incriminating verbal and written acts by the putative
father. Under Article 278 of the New Civil Code, voluntary
recognition by a parent shall be made in the record of birth, a
will, a statement before a court of record, or in any authentic
writing. To be effective, the claim of filiation must be made by
the putative father himself and the writing must be the writing of
the putative father. A notarial agreement to support a child
whose filiation is admitted by the putative father was
considered acceptable evidence. Letters to the mother vowing
to be a good father to the child and pictures of the putative
father cuddling the child on various occasions, together with
the certificate of live birth, proved filiation. However, a student
permanent record, a written consent to a father's operation, or
a marriage contract where the putative father gave consent,
cannot be taken as authentic writing. Standing alone, neither a
certificate of baptism nor family pictures are sufficient to
establish filiation. (emphasis and underscoring supplied)
In the present case, Arhbencel relies, in the main, on the
handwritten note executed by petitioner which reads:
Manila, Aug. 7, 1999

58

I, Ben-Hur C. Nepomuceno, hereby undertake to give and

provide financial support in the amount of P1,500.00 every
fifteen and thirtieth day of each month for a total of P3,000.00 a
month starting Aug. 15, 1999, to Ahrbencel Ann Lopez,
presently in the custody of her mother Araceli Lopez without
the necessity of demand, subject to adjustment later depending
on the needs of the child and my income.
The abovequoted note does not contain any statement
whatsoever about Arhbencels filiation to petitioner. It is,
therefore, not within the ambit of Article 172(2) vis--vis Article
175 of the Family Code which admits as competent evidence
of illegitimate filiation an admission of filiation in a private
handwritten instrument signed by the parent concerned.
The note cannot also be accorded the same weight as the
notarial agreement to support the child referred to in Herrera.
For it is not even notarized. And Herrera instructs that the
notarial agreement must be accompanied by the putative
fathers admission of filiation to be an acceptable evidence of
filiation. Here, however, not only has petitioner not admitted
filiation through contemporaneous actions. He has consistently
denied it.
The only other documentary evidence submitted by Arhbencel,
a copy of her Certificate of Birth, 11 has no probative value to
establish filiation to petitioner, the latter not having signed the
same.
At bottom, all that Arhbencel really has is petitioners
handwritten undertaking to provide financial support to her
which, without more, fails to establish her claim of filiation. The
Court is mindful that the best interests of the child in cases
involving paternity and filiation should be advanced. It is,
however, just as mindful of the disturbance that unfounded
paternity suits cause to the privacy and peace of the putative
fathers legitimate family.
WHEREFORE, the petition is GRANTED. The Court of
Appeals Decision of July 20, 2007 is SET ASIDE. The Order
dated June 7, 2006 of Branch 130 of the Caloocan City RTC
dismissing the complaint for insufficiency of evidence is
REINSTATED.
SO ORDERED.

59

together with alias Jose and alias Gil, whose true

identities and present whereabouts are still unknown
and all of them mutually helping and aiding one
another, with intent to gain and by means of force,
violence and intimidation, did then and there willfully,
unlawfully and feloniously take, steal and carry away
cash money amounting to P1.3 million and three (3)
caliber paltik firearms in the total amount of
P18,000.00, belonging to Pilipinas Bank represented
by Juan Iglesia y Orgil and Lanting Security Agency
represented by Edgar Lucero y Iribayen, respectively,
to the damage and prejudice of the complainants in
the aforementioned amount of P1.3 million and
P18,000.00, respectively.
Upon being arraigned, all the accused, assisted by counsel,
pleaded not guilty. Trial commenced thereafter.
The evidence for the prosecution, as culled from the
testimonies of Edgardo Irigayen, Ariel Arellano, SPO2
Dioscorro Asinas, Jr., and SPO4 Romualdo Maximo, is
summarized as follows:2
Petitioner Pepito Capila was a security guard of the Lanting
Security and Watchman Agency assigned in the Meralco
Collection Office on J.P. Rizal Street, Makati City.

G.R. No. 146161

July 17, 2006

PEPITO
CAPILA
Y
YRUMA,
petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES, respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the Petition for Review on Certiorari of the
Decision1 dated November 10, 2000 of the Court of Appeals in
CA-G.R. CR No. 18903, entitled "The People of the Philippines
v. Pepito Capila y Yruma."
On August 24, 1993, an Information for robbery was filed with
the Regional Trial Court, Branch 148, Makati City, against
Pepito Capila y Yruma, herein petitioner, his brother Bonifacio
Capila y Yruma, Deogenio Caparoso y Porfero, and Dimas
dela Cruz y Lorena.
The Information, docketed as Criminal Case No. 93-7117, is
quoted as follows:
That on or about the 9th day of August 1993, in the
Municipality of Makati, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the
above-named accused, conspiring and confederating

On May 9, 1992, Ariel Arellano and Lani Imperio, both

employees of the Pilipinas Bank, Libertad Branch in Pasay
City, went to the Meralco Collection Office to receive and
deposit cash collections from Meralco's 27 collectors. The total
collection for that day amounted to P1,292,991.12. They then
placed the money inside a duffle bag table and had it
padlocked. Then they waited for the Pilipinas Bank's armored
car to arrive. The security guard posted at the Meralco
Collection Office at the time was Dimas dela Cruz, also from
the Lanting Security and Watchman Agency.
Before the armored car could arrive, two armed men suddenly
entered the Meralco Collection Office. They hit Dimas on the
nape with a handgun. Then they ordered Ariel and Lani to lie
on the floor face down and immediately took the duffle bag
containing Meralco's cash collections. They also seized three .
38 caliber revolvers, valued at P6,000.00 each, owned by the
Lanting Security and Watchman Agency, including the service
handgun issued to Dimas.
After the malefactors fled, Dimas told Ariel that petitioner was
one of those who robbed the office. Then Dimas called the
Makati Police Sub-Station 9, the Meralco Security Division, and
the Lanting Security and Watchman Agency to report the
incident. The Makati Police dispatched SPO4 Romualdo
Maximo to investigate the robbery, while the Lanting Security
and Watchman Agency instructed its intelligence officer,
Edgardo Irigayen, to talk to the guard on duty.
SPO4 Maximo, accompanied by a police photographer, a
fingerprint technician, and another policeman, arrived within
ten minutes at the Meralco Collection Office. He questioned
Ariel and Lani, but they could not identify the robbers as they
were lying face down on the floor. Upon inquiry by SPO4
Maximo, Dimas told him that one of the robbers is petitioner,
also a security guard of the Lanting Security and Watchman
Agency assigned in the Meralco Collection Office. Thereafter,

60

SPO4 Maximo invited Dimas, Lani and Ariel to the police

station for the purpose of taking their sworn statements.
Irigayen, the intelligence officer of the Lanting Security and
Watchman Agency, also questioned Dimas. The latter reported
that Pepito Capila is one of the robbers.
After the incident, petitioner fled to his hometown in Palapag,
Northern Samar. The Lanting Security and Watchman Agency
then requested SPO4 Maximo and his team to go to Northern
Samar to apprehend Capila.

In his appeal to the Court of Appeals, petitioner alleged that the

trial court erred in admitting in evidence the statement of Dimas
that he (petitioner) is one of the robbers. He was denied due
process because he was not able to cross-examine Dimas as
the latter did not testify.
On November 10, 2000, the Court of Appeals promulgated its
Decision affirming the assailed judgment of the trial court, thus:
WHEREFORE, premises considered, the appealed
decision (dated January 3, 1995) of the Regional Trial
Court (Branch 148) in Makati, Metro Manila in
Criminal Case No. 93-7217 is hereby AFFIRMED with
costs against the accused-appellant.

In Northern Samar, the police operatives, with the assistance of

the Citizens Armed Forces Geographical Unit, arrested
petitioner, his brother Bonifacio Capila, and Deogenio
Caparoso. The police found P5,000.00 in possession of
petitioner allegedly part of the loot. All the suspects were
arrested without warrants.

Hence, the instant petition for Review on Certiorari.

SPO4 Maximo interrogated petitioner who admitted that he

participated in the commission of the crime; that his share of
the loot is P45,000.00; and that Dimas is the mastermind.

The fundamental issue for our resolution is whether the

prosecution was able to prove the guilt of herein petitioner
beyond reasonable doubt.

After the prosecution had rested its case, all the accused,
through counsel, filed a Demurrer to Evidence but it was
denied by the trial court.

A careful scrutiny of the records shows that the prosecution

relied heavily on the testimony of SPO4 Maximo that
immediately after the incident, Dimas reported to him that one
of the robbers is petitioner. The Court of Appeals, in affirming
the court a quo's judgment convicting petitioner, ruled that
Dimas' statement is part of the res gestae.

When the case was called for the continuation of the hearing
on November 15, 1994, the accused waived their right to
present their evidence, opting to submit their respective
memoranda instead.
On January 3, 1995, the trial court rendered its Decision
acquitting all the accused, except petitioner, thus:
WHEREFORE, premises considered:
1. And finding that the prosecution failed to prove the
guilt of accused Bonifacio Capila, Deogenes
Caparoso, and Dimas dela Cruz beyond reasonable
doubt, they are hereby acquitted.
2. And finding Pepito Capila guilty beyond reasonable
doubt of the crime of Robbery defined under Article
293 and penalized under Article 294 par. 5 of the
Revised Penal Code, with the presence of the
aggravating circumstance of abuse of confidence, use
of a firearm, and betrayal of trust, he is hereby
sentenced to an indeterminate prision term of from
EIGHT (8) years as minimum to TEN (10) years as
maximum.
Pepito Capila is also ordered to pay:
1. Lanting Security Agency the sum of
P18,000 for the value of the three firearms
not recovered and belonging to said agency;
2. The sum of P1,292,991.12 to Pilipinas
Bank, the amount taken and not recovered.
With costs against accused Pepito Capila.

SO ORDERED.

In the appellee's brief, the Solicitor General reiterated the

appellate court's ruling.
Res gestae is a Latin phrase which literally means "things
done." As an exception to the hearsay rule, it refers to those
exclamations and statements by either the participants, victims,
or spectators to a crime immediately before, during or
immediately after the commission of the crime, when the
circumstances are such that the statements were made as
spontaneous reactions or utterances inspired by the
excitement of the occasion, and there was no opportunity for
the declarant to deliberate and fabricate a false statement.3
The reason for the rule is human experience. It has been
shown that under certain external circumstances of physical or
mental shock, the state of nervous excitement which occurs in
a spectator may produce a spontaneous and sincere response
to the actual sensations and perceptions produced by the
external shock. As the statements or utterances are made
under the immediate and uncontrolled domination of the
senses, rather than reason and reflection, such statements or
utterances may be taken as expressing the real belief of the
speaker as to the facts he just observed. The spontaneity of
the declaration is such that the declaration itself may be
regarded as the event speaking through the declarant rather
than the declarant speaking for himself.4
The rule on res gestae is provided under Section 42, Rule 130
of the Revised Rules of Court, thus:
SEC. 42. Part of the res gestae. Statements made
by a person while a startling occurrence is taking
place or immediately prior or subsequent thereto with
respect to the circumstances thereof, may be given in
evidence as part of the res gestae. So, also

61

statements accompanying an equivocal act material

to the issue, and giving it a legal significance, may be
received as part of the res gestae.
For the admission of the res gestae in evidence, the following
requisites must be met: (1) that the principal act or the res
gestae be a startling occurrence; (2) the statement is
spontaneous or was made before the declarant had time to
contrive or devise, and the statement is made during the
occurrence or immediately or subsequent thereto; and (3) the
statement made must concern the occurrence in question and
its immediately attending circumstances.5
The Court of Appeals found that all the above requisites are
present, thus:
First. The principal act is a startling occurrence which
is the robbery in question.
Second. Dimas Dela Cruz informed the investigating
officers that it was appellant who robbed the Meralco
office immediately after the incident occurred and
before he had the time to contrive a story.
The robbery happened at around eight o'clock in the
evening of August 9, 1993 (p. 4, TSN, February 24,
1994). Immediately after the incident, dela Cruz called
up the police station (p. 17, TSN, January 31, 1994).
In ten minutes, SPO4 Maximo and his companion
were in the Meralco office where they immediately
conducted an investigation (pp. 3-9, TSN, February
24, 1994). During this investigation, DELA Cruz
pointed to appellant as one of the perpetrators of the
crime.
Further, immediately after the robbers fled, dela Cruz
informed Ariel Arellano (the bank representative
detailed at the Meralco office) that appellant was one
of those who robbed the office (pp. 15-17, TSN,
January 31, 1994).
In other words, statement of dela Cruz was
spontaneous as correctly observed by the trial court.
Third. The statement of dela Cruz refers to the
robbery or incident subject matter of this case.
We are in accord with the Court of Appeals in its conclusion
that all the requisites of the rule on Res gestae are present.
The principal act, which by any measure is undoubtedly a
startling occurrence, is the robbery of which petitioner is being
charged. Immediately after the robbery, Dimas dela Cruz, the
security guard then on duty, informed Ariel that one of the
perpetrators is herein petitioner. Dimas likewise reported at
once the incident to the police and to the security agency.
When questioned by SPO4 Maximo, Dimas, who was still
shocked, named petitioner herein as one of the robbers. His
statements to Ariel and SPO4 Maximo were made before he
had the time and opportunity to concoct and contrive a false
story. We note that Dimas personally knows petitioner
considering that both worked in the same security agency and
assigned in the same office.

Petitioner contends that since Dimas dela Cruz did not take the
witness stand, he (petitioner) was deprived of his right to crossexamine him. Thus, the Court of Appeals should not have
considered Dimas' statement as part of the Res gestae. Our
ruling in Ilocos Norte Electric Company v. Court of Appeals 6 is
relevant.
In this case, it appears that in the evening of June 28 until the
early morning of June 29, 1967, a strong typhoon (Gening)
occurred in Ilocos Norte, bringing heavy rains and consequent
flooding. While one Isabel Lao Juan was wading in waist-deep
flood along Guerrero Street, Laoag City, suddenly she
screamed, "Ay" and quickly sank into the water. Her two
companions, Aida Bulong and Linda Estavillo, shouted for help.
Ernesto dela Cruz arrived and tried to approach Isabel who
was electrocuted. But at four meters away from her, Ernesto
turned back shouting, "the water is grounded." This Court ruled
that the Court of Appeals properly applied the principle of Res
gestae. The testimonies of Aida and Linda that Ernesto dela
Cruz tried to approach the victim, but he turned back and
shouted, "the water is grounded," are not hearsay although he
(Ernesto) was not presented as a witness. His declaration is
part of the Res gestae.
Applying the above ruling on the instant case, we cannot
consider the testimony of SPO4 Maximo as hearsay since the
statement of Dimas that petitioner is one of the robbers is part
of the Res gestae.
Moreover, despite the damaging testimonies of the witnesses
for the prosecution, petitioner did not testify to rebut them.
Such posture is admission in silence.
Section 32, Rule 130 of the New Rules on Evidence provides:
Sec. 32. Admission by silence. An act or declaration
made in the presence and within the hearing or
observation of a party who does or says nothing when
the act or declaration is such as naturally to call for
action or comment if not true, and when proper and
possible for him to do so, may be given in evidence
against him.
Another factor that militates against petitioner's innocence is
his flight to Samar after the commission of the crime.
Obviously, such flight is an indication of guilt.
Verily, we hold that the prosecution, by its evidence, has
established the guilt of petitioner beyond reasonable doubt.
WHEREFORE, we DENY the petition. The assailed Decision of
the Court of Appeals in CA-G.R. CR No. 18903 finding
petitioner PEPITO CAPILA y YRUMA guilty beyond
reasonable doubt of the crime of robbery is AFFIRMED.
With costs de oficio.
SO ORDERED.

62

About 2:00 oclock in the morning of January 1, 1998, 3 as

appellant arrived home in Barangay Bonlalacao, Mangatarem,
Pangasinan from a drinking spree with his cousins and
nephews, he roused his 79-year old father Crispin Cudal (the
victim) from his sleep. Appellant then asked money from the
victim so he could go back to the drinking session and pay for
the liquor that he consumed. The victim replied that he had no
money, and told appellant that he was already drunk.4 This
drew the two to a fight.5
Some 50 meters away from the place of the incident, Camilo
Cudal (Camilo), appellants first cousin who was then in the
house of his mother-in-law, heard the commotion.6 Camilo
immediately rushed to the place and there saw the victim
sitting on his bed and wiping blood oozing from his forehead.
When asked about what happened, the victim quickly replied
that he quarreled with appellant and that he was hit by him with
a stone.7
When Camilo confronted appellant, the latter reasoned out that
he was asking money from his father but the latter refused.8
Camilo brought the wounded victim to the house of his
(victims) brother Segundino Cudal9 where first aid was applied
on his wounds. Camilo then fetched from Urbiztondo,
Pangasinan the victims daughter Leoncia10 who brought the
victim to a nearby hospital where he expired the following day,
January 2, 1998, at about 4 oclock p.m.11 The postmortem
report prepared by Dr. Cleofe Orence, Rural Health Physician
of Mangatarem, Pangasinan who examined the body of the
victim revealed the following findings:
External Physical Injuries:
(1) Lacerated wound, old, about 4 cm. midfrontal
area.
(2) Hematoma, dorsal aspect right hand.
(3) Contusion 2x3 cm., right upper quadrant area,
abdomen.
Probable Cause of Death:
G.R. No. 167502

October 31, 2006

PEOPLE OF THE PHILIPPINES,

vs.
PABLO CUDAL, accused-appellant.

INTERNAL
HEMORRHAGE
secondary
Craniocerebral Injury secondary to Trauma

to

plaintiff-appellee,

DECISION

T/C Ruptured Viscus, abdomen.12

Appellant was arrested by police authorities on January 3,
199813 and brought for treatment at the Mangatarem District
Hospital on the same day. The medical findings on him
showed:
- (-) Negative alcoholic breath

CARPIO MORALES, J.:

- Stab wound 2 cm., left side face

Under final review is the Court of Appeals Decision 1 of

February 11, 2005 affirming that of Branch 39 of the Regional
Trial Court of Lingayen, Pangasinan2 convicting Pablo Cudal
(appellant) of parricide and meting out to him the penalty of
reclusion perpetua.

- Stab wound 1.5 cm. zygomatic area left

- Periorbital hematoma left superimposed
punctured wound .5 cm. left lower eyelid

with

63

- Punctured wound left eyebrow

direct witnesses to the crime charged." 20 The appeal was

docketed as G.R. No. 140637.

- Contusion hematoma 1x1 cm. occipital area14

An Information was soon filed against appellant reading:
xxxx
That on or about January 1, 1998, at about 2:00
oclock dawn, in barangay Bonlalacao, municipality of
Mangatarem, province of Pangasinan, Philippines and
within the jurisdiction of this Honorable Court, the
above-named accused, willfully, unlawfully and
feloneously (sic), and with evident premiditation (sic),
that is, having conceived and deliberated to kill his
own father with whom he was living with, and with
treachery, attack, assault and hit with the use of stone
his father, Crispin Cudal, on the head and other parts
of his body, inflicting upon the latter mortal wounds
which directly caused his death, to the damage and
prejudice of the heirs of the said victim Crispin Cudal.
CONTRARY to Article 246 of the Revised Penal
Code.15
xxxx

By Resolution21 of August 30, 2004, this Court ordered the

transfer of the case to the Court of Appeals for appropriate
action and disposition conformably with People v. Mateo.22
The appellate court affirmed, with modification, appellants
conviction. The decretal text of the decision reads:
WHEREFORE, the assailed Decision of Branch 39 of
the Regional Trial Court of Lingayen, Pangasinan,
dated October 28, 1998, in Criminal Case No. L-5778,
convicting the appellant, Pablo Cudal, of the crime of
parricide and sentencing him to suffer the penalty of
reclusion perpetua is hereby AFFIRMED. The last
sentence of the first paragraph of its dispositive
portion is however hereby modified to read, as
follows: "Accused-appellant Pablo Cudal is also
ordered to pay the heirs of the victim, Crispin Cudal,
the sum of P30,000.00 representing funeral
expenses, plus indemnity of P50,000.00 without
subsidiary imprisonment in case of insolvency; and to
pay the costs."
No pronouncement as to costs.23 (Emphasis in the
original)

Denying having struck the victim, appellant claimed that it was

he who was assaulted with a bolo,16 and that while going after
him, the victim accidentally fell down and hit the bedpost in the
process, wounding himself on the forehead.17 Asked how the
victim sustained injury on his abdomen, appellant explained
that the victim subsequently fell on the floor, hitting his
abdomen with the handle of the bolo he was holding.18

Hence, the elevation of the case to this Court for final review.

After trial, Branch 39 of the Regional Trial Court of Lingayen,

Pangasinan, by Decision of October 28, 1998, convicted
appellant of parricide, but considered his intoxication at the
time of the commission of the offense as a mitigating
circumstance under paragraph 3, Article 15 of the Revised
Penal Code. The dispositive portion of the decision reads:

Article 246 of the Revised Penal Code provides:

WHEREFORE,
in
view
of
the
foregoing
considerations, the Court finds the accused Pablo
Cudal Guilty beyond reasonable doubt of the crime of
Parricide for the killing of his father Crispin Cudal, on
the early morning of New Year, January 1, 1998 with
the presence of one (1) mitigating circumstance, and
accordingly the Court sentences the said accused to
reclusion perpetua. He is also ordered to pay the heirs
of the accused the sum of P30,000.00 representing
funeral expenses, plus indemnity of P50,000.00
without subsidiary imprisonment in case of insolvency;
and to pay the costs.
Being a detention prisoner, the said accused is
credited with his detention to its full extent.
SO ORDERED.19
Appellant appealed his conviction before this Court, assailing
the trial court for "accept[ing] the prosecutions account as
gospel truth despite the fact that its witnesses were not actually

In a Manifestation dated September 7, 2005,24 appellant

informed that he was opting not to file a Supplemental Brief.
The appeal fails.

ART. 246. Parricide. Any person who shall kill his

father, mother, or child, whether legitimate or
illegitimate, or any of his ascendants, or descendants,
or his spouse, shall be guilty of parricide and shall be
punished by the penalty of reclusion perpetua to
death.
Prosecution witness Camilo Cudal narrated what he knew of
the circumstances surrounding the incident as follows:
Q Do you still recall where you were on the late
evening of December 31, 1997 before midnight?
A I could remember, sir.
Q Where were you?
A I was in the house of my in[-]laws, sir.
Q Will you please tell the name of your in-laws?
A Marissa Dancel, sir.
Q Where is the place of Marissa Dancel located?

64

A Bulalakao, Mangatarem, sir.

Q Whose house?

Q Why were you there at the house of your mother-inlaw, Marissa Dancel?

A House of Crispin Cudal, sir?

Q How did you [e]nter the house of Crispin Cudal?

A Because we were celebrating the New Year[s] Eve,

sir.

A The door was opened, sir.

Q Now by the way, how far is your house from the

house of your mother-in-law where you were
celebrating New Year[]s Eve?

Q As you [e]ntered the door of the house of Crispin

Cudal, what did you see, if any?

A Around 50 meters away, sir.

A I saw blood oozing from the forehead of Crispin

Cudal, sir.

Q Now, at about 2:00 oclock in the early mornignof

(sic) January 1, 1998, can you tell us where you
were?

Q Where did you see Crispin Cudal inside the house

blooded as you have pointed in the forehead?

A Yes, sir, I was in the house of my in-laws.

Q As you were stay (sic) there, can you still recall if
there was unusual thing that you observe[d] when you
were at the house of your mother-in-law?
A Yes, sir, there was.
Q What was that that you observe[d]?
A I heard something like quarreling on the house of
Crispin Cudal, sir.

A In the place where he sleep (sic), sir.

Q What was his position when you saw him blooded
on the forehead?
A He was seating down and he was wiping the blood
of his forehead, sir.
Q When you saw wiping his blood on the forehead,
what next happened?
A I asked him, "Uncle what happened,["] and he
answered, "we quarreled with Pablo Cudal,["] he
said.

Q Now, can you tell us why do you say that there is a

sounds (sic) like warning in the house of Crispin
Cudal?

Q Do you remember having asked, what caused the

injury of the forehead?

A Because they were uttering words, sir.

A Yes, sir, I asked him.

Q Can you tell us if you could recognize that voices as

you said they are quarreling?

Q What did the victim answer if any when you asked

him what caused his injury on the forehead if he
answer (sic) you?

A Yes, sir.
Q Please tell the Honorable Court whose voice is
that?
A Pablo Cudal and Crispin Cudal, sir.
Q Now, what did you [do] if any when you heard this
quarreling voices of accused Pablo Cudal?

A I was hit with the stone by Pablo Cudal. 25

(Emphasis supplied)
Another prosecution witness, Segundino Cudal, declared that
when his brother the victim was brought to his house by
Camilo, the victim who was "strong," albeit his face was
bloodied, told him that he was struck with a stone by appellant.
FISCAL CHIONG:

A Because I went near, sir.

Q How did you go near?
A I walked towards the house of Crispin, (sic) Cudal
and I was listening to them, sir.
Q Where did you go when you went near?

Q Do you know where you were on the early morning

of January 1, 1998?
A I was at home, sir.
Q Do you recall if there is unusual incident that came
to your knowledge involving your brother Crispin
Cudal?

A I [e]ntered there (sic) house, sir.

65

A None yet when I am at home.

Q Do you know, if any one came to your house that
morning of January 1, 1998?
A Yes, Crispin Cudal, sir.
Q How was your older brother Crispin Cudal brought
to yourhouse (sic) by Camilo Cudal?
A He was loaded in a tricycle, sir.
Q Now, when you saw your brother when he was
brought to your house, can you tell us his physical
appearance or condition?
A He was strong but his face was bloody, sir. Even
his clothes were stained or tainted with blood, sir.
Q Now, when you saw your brothers face bloody as
well as his clothes, what did you do, if any as he was
already in your house?
A I asked him what happened to him and he told me
"I was struck with stone by my son[.]"
Q Did you ask him who is this son of him who struck
him with stone?
A Yes, sir his name is Pablo Cudal.26 (Emphasis
and underscoring supplied)
At the witness stand, defense witness Dr. Orence, declared:
Q Is it also possible Doctor[a] that this contusion was
due to the force of a stone struck on the victim? Stone
is a hard object?
A It could be, sir.
Q Likewise, this hematoma on the dorsal right hand of
the victim was possibly caused by the impact of the
stone being thrown at the victim when the victim tried
to parry it, is that not also possible, Doctora?
A Yes sir, it is possible.27 (Underscoring supplied)
That the complained act of appellant was the proximate cause
of the death of the victim is evident from the above-quoted
postmortem report on the body of the deceased showing the
probable cause of his death as "INTERNAL HEMORRHAGE
secondary to Craniocerebral Injury secondary to Trauma" and
"T/C Ruptured Viscus, abdomen."
It is axiomatic in criminal jurisprudence that when the issue is
one of credibility of witnesses, an appellate court will normally
not disturb the factual findings of the trial court unless the latter
has reached conclusions that are clearly unsupported by
evidence, or unless some facts or circumstances of weight or
influence were overlooked which, if considered, would affect
the result of the case. The rationale for this is that trial courts
have superior advantages in ascertaining the truth and in

detecting falsehood as they have the opportunity to observe at

close range the manner and demeanor of witnesses while
testifying.28 In the absence of any showing that the trial court,
whose findings were affirmed by the appellate court, acted
arbitrarily in the appreciation of evidence, this Court respects
the same.
That Camilo and Segundino were not eyewitnesses to the
incident does not render their testimonies inadmissible, for they
may be considered part of the res gestae,29 an exception to the
hearsay rule. For the same to be considered part of the res
gestae, the following requisites must concur:
(1) the principal act or res gestae must be a startling
occurrence; (2) the statement is spontaneous or was made
before the declarant had time to contrive or devise a false
statement, and the statement was made during the occurrence
or immediately prior or subsequent thereto; and (3) the
statement made must concern the occurrence in question and
its immediately attending circumstances.30
The spontaneity of the utterance and its logical connection with
the principal event, coupled with the fact that the utterance was
made while the declarant was still "strong" and subject to the
stimulus of the nervous excitement of the principal event, are
deemed to preclude contrivance, deliberation, design or
fabrication, and to give to the utterance an inherent guaranty of
trustworthiness.31 The admissibility of such exclamation is
based on experience that, under certain external
circumstances of physical or mental shock, a stress of nervous
excitement may be produced in a spectator which stills the
reflective faculties and removes their control, so that the
utterance which then occurs is a spontaneous and sincere
response to the actual sensations and perceptions already
produced by the external shock. Since this utterance is made
under the immediate and uncontrolled domination of the
senses, rather than reason and reflection, and during the brief
period when consideration of self-interest could not have been
fully brought to bear, the utterance may be taken as expressing
the real belief of the speaker as to the facts just observed by
him.32
The victims information to Camilo and Segundino as to the
material facts was made immediately after the startling incident
occurred. It is as categorical as it is spontaneous and
instinctive. It cannot be concluded that in a very short span of
time, taking into consideration the ripe age of the victim, his
relationship to appellant, and the cruelty and suffering which
immediately preceded the confession, the victim had the
opportunity to concoct the facts surrounding the incident and its
authorship. Besides, there appears to be no reason or motive
on the part of the victim to point his son as the culprit if such
were not indeed the truth.
Appellants intoxication at the time of the commission of the
crime, being an alternative circumstance under Article 15 of the
Revised Penal Code, may be appreciated as aggravating if the
same is habitual or intentional, otherwise it shall be considered
as a mitigating circumstance. The trial court observed:
We now come to another matter, which is the fact that
during the incident, the accused was drunk. This was
testified to by Camilo Cudal and admitted by the wife
of the accused. The accused himself admitted that he
had been drinking with his cousins and nephews, but
he claims that he did not drink much. Drunkenness is

66

an alternative circumstance. It is aggravating if the

accused is a habitual drunkard. It is mitigating if it is
otherwise.

Decision1 dated July 22, 2005 and the Amended Decision2

dated February 20, 2007 of the Court of Appeals (CA) in CAG.R. CV No. 79101.

The date of the incident is two (2) hours after midnight

which ushered in the new year. Before that, the
accused and his relatives were celebrating and they
drank San Miguel gin. No evidence was presented to
establish that he is a habitual drunkard. It is a legal
maxim that when there is doubt, the doubt should be
resolved in favor of the accused. This court[,]
therefore, believes that this should be taken as a
mitigating circumstance, which is favorable to the
accused.33 (Underscoring supplied)

Petitioner Golden (Iloilo) Delta Sales Corporation (Golden

Delta) is a domestic corporation engaged in the business of
selling hardware and construction materials. Mr. Chui Han Sing
Cembrano is its Vice-President and General Manager.3

Absent any showing then that appellants intoxication was

habitual or intentional, it may only be considered as mitigating
to correctly call for the imposition of the penalty of reclusion
perpetua, in accordance with Article 63, paragraph 2(3) of the
Revised Penal Code.34
WHEREFORE, the Court of Appeals Decision of February 11,
2005 which affirmed the October 28, 1998 Decision of Branch
39 of the Regional Trial Court of Lingayen, Pangasinan,
convicting appellant Pablo Cudal of parricide and meting out
the penalty of reclusion perpetua is AFFIRMED.

Sometime in 1990, Cembrano was introduced by Jardiolin to

the PSI Board of Directors, among whom was Setias. Since
then, Golden Delta supplied PSI with its construction materials
on credit and at times helped finance the latters construction
projects through Golden Deltas sister financing company.5
Initially, the construction materials delivered by Golden Delta to
PSI were taken from the formers warehouse located in
Dungon A, Jaro, Iloilo City, which was situated some kilometers
away from the PSI compound at Barangay Maliao, Pavia,
Iloilo.6
Sometime in March 2000, for convenience of both parties, the
officers of PSI allegedly offered Golden Delta to store its
construction materials at the PSI compound in Pavia, Iloilo. At
that time, Golden Deltas warehouse in Dungon A, Jaro, Iloilo
City, was being rented by Wewins Bakeshop. Consequently,
Golden Delta accepted the proposal and began utilizing a
portion of the PSI compound as its warehouse and bodega,
stacking and storing its construction materials there.7

SO ORDERED.

G.R. No. 176768

Respondent Pre-Stress International Corporation (PSI) is also

a domestic corporation engaged in the fabrication of pre-stress
concrete pipes and pre-case concrete, while respondents Jerry
Jardiolin and Zeon Setias are officers of PSI.4

January 12, 2009

GOLDEN (ILOILO) DELTA SALES CORPORATION,

Petitioners,
vs.
PRE-STRESS INTERNATIONAL CORPORATION, ZEON
SETIAS and JERRY JARDIOLIN, Respondents.
DECISION
AZCUNA, J.:

This is a petition for review on certiorari under Rule 45 of the

1997 Revised Rules of Civil Procedure seeking to set aside the

Golden Delta alleged that its stocks coming from Luzon and
Cebu were delivered directly to the PSI compound and stored
there. Golden Delta also placed there trucks, forklifts and other
equipment necessary for loading and unloading the materials.
It likewise assigned there its own personnel to manage and
attend to the receipts and withdrawal of materials by its buyers.
Golden Delta claimed that the procedure in the withdrawal of
materials by its customers in the PSI compound was to first
purchase the materials from its main office in Iloilo City; the
customer would then be issued a withdrawal slip describing the
materials and their quantities; the withdrawal slip would then be
presented to Golden Deltas personnel stationed at the PSI
compound and the latter would record it and release the
materials to the customer. Golden Delta claimed that the
arrangement went smoothly from March 2000 to December
2001.8
Before December 5, 2001, the lessee of Golden Deltas
warehouse in Dungon A, Jaro, Iloilo City, terminated its lease
agreement with Golden Delta. Hence, Golden Delta decided to
resume its operations at its own warehouse. Thereafter,
Golden Delta started to retrieve and transfer its alleged stocks
from the PSI compound to its own warehouse in Dungon A.
Golden Deltas employees were able to load three out of four
trucks with assorted construction materials, but were only able
to bring out two loaded trucks from the PSI compound to its
warehouse in Dungon A. When Golden Deltas people returned
to retrieve the remaining materials, they were prevented from
doing so by the guards of PSI, allegedly upon the instructions
of Jardiolin. Despite numerous telephone calls by Golden Delta

67

to the officers and personnel of PSI, the latter allegedly refused

to allow Golden Delta to withdraw its remaining stocks.9
On December 7, 2001, PSI purportedly called Golden Deltas
office to inform the latter that it may retrieve the two trucks that
were left at the PSI compound. Golden Delta, however, found
two empty trucks along the highway outside the PSI
compound. It appears that one of the trucks which were loaded
with materials earlier was emptied of its cargo. At that time,
according to Golden Delta, the drivers who retrieved the trucks
saw Golden Deltas materials still inside the PSI compound.10
On December 8, 2001, Golden Delta sent a Letter11 addressed
to Setias, the General Manager of PSI, demanding the release
of the construction materials. PSI allegedly refused to release
or allow Golden Delta to enter the compound and withdraw the
materials.12
Consequently, Golden Delta filed on January 8, 2002 a
Complaint for Recovery of Personal Property with Prayer for
Replevin with Damages13 before the Regional Trial Court
(RTC), Iloilo City, against PSI, Jardiolin and Setias, later
docketed as Civil Case No. 02-27020. In its complaint, Golden
Delta averred that respondents refusal to allow it to withdraw
the construction materials inside the PSI compound, in effect,
constitutes unlawful taking of possession of personal
properties. Golden Delta prayed that the trial court issue a writ
of replevin ordering the seizure and delivery of the subject
personal properties in accordance with law or in the event that
manual delivery cannot be effected, to render judgment
ordering respondents to pay, jointly and severally, the sum of
P3,885,750.69 plus 20% as attorneys fees and the replevin
bond premium and other expenses incurred in the seizure of
the construction materials. Golden Delta likewise prayed for
P200,000 moral damages, P200,000 exemplary damages, and
the cost of the suit.14

equipment and construction materials. In addition, they do not

interfere with the affairs and activities of Jardiolin as his
operations do not interfere with their own operations. Although
Golden Delta also delivers construction materials to Jardiolin,
their transaction is exclusively between the two of them and
they have no participation in it whatsoever.17
In his own Answer with Affirmative Defenses and
Counterclaim18 dated February 8, 2002, Jardiolin maintained
that he did not agree or allow, impliedly or explicitly, Golden
Delta or any of its representatives to store any construction
materials in his designated area inside the PSI compound. He
averred that neither he, PSI nor Setias agreed to the
withdrawal of any of the alleged stocks because the stocks
inside the PSI compound were not owned by Golden Delta. He
added that the construction materials inside the PSI compound
being claimed by Golden Delta were his personal properties.
Thus, he cannot and could not have refused Golden Delta from
withdrawing any construction materials that it allegedly stored
inside the PSI compound since Golden Delta had not stored or
delivered any construction materials to him for storing or
safekeeping with the obligation to return the same.19
Thereafter, trial ensued and on March 17, 2003, the RTC
rendered a Decision20 in favor of respondents and against
Golden Delta. Its dispositive portion stated:
WHEREFORE, judgment is hereby rendered in favor of the
defendants and against the plaintiff as follows:
1. Dismissing the complaint of plaintiff;
2. Directing plaintiff to pay defendants as
follows;
A. To defendant Jerry Jardiolin:

On January 12, 2002, upon the complaint of Golden Delta,

agents of the National Bureau of Investigation (NBI)
apprehended and impounded two trucks loaded with Golden
Deltas materials that were not retrieved from the PSI
compound. Said materials, according to Golden Delta, were
identified by the metal tags attached thereto bearing the name
Golden Delta. The truck drivers and their helpers were
apprehended and detained by the NBI. Thereafter, on the basis
of the evidence gathered and the findings of the NBI, a
complaint for qualified theft was filed by the NBI with the
Municipal Circuit Trial Court, Sta. Barbara-Pavia, Iloilo, against
Jardiolin and Setias together with other officers and personnel
of PSI.15
In their Answer with Affirmative Defense and Counterclaim 16
filed on February 8, 2002, PSI and Setias contended that
Golden Deltas action for recovery of personal property with
prayer for replevin with damages has no factual and legal
basis. They averred that they came to know Cembrano when
Jardiolin introduced him to them and that they are familiar with
Golden Delta since they used to buy construction materials
from it. They added that Golden Delta delivered construction
materials at the PSI compound when they bought materials
from the latter or when it delivered construction materials to
Jardiolin at a separate area within the compound. Further, the
PSI compound has a total of 5.7 hectares. It has wide and idle
spaces since PSI occupies only a portion of the property
consisting of more or less 2.5 hectares. Jardiolin was also
allowed to use a portion of the area as storage for his own

1.
Five
Hundred
Thousand
Pesos
(P500,000.00) as Attorneys Fees and one
[sic]
Hundred
Thousand
Pesos
(P100,000.00) as Acceptance Fee;
2. Moral Damages in the amount of Three
Million Five Hundred Thousand Pesos
(P3,500,000.00);
3. Exemplary Damages in the amount of One
Million Pesos (P1,000,000.00);
B. To defendant Zeon Setias;
1. One Million Pesos (P1,000,000.00) for
Attorneys Fees;
2. Moral Damages in the amount of Three
Million Five Hundred Thousand Pesos
(P3,500,000.00);
3. Exemplary Damages in the amount of One
Million Pesos (P1,000,000.00);
SO ORDERED.21

68

In ruling for respondents the RTC ratiocinated that Golden

Delta was not able to prove its ownership of the subject
materials and its entitlement to their possession. The court
stated that Golden Delta was not able to prove its case or
causes of action, having failed to establish in a satisfactory
manner the facts upon which it based its claims. Specifically,
Golden Delta failed to establish the requisites for Replevin
under Rule 60 of the Revised Rules of Court. The RTC
concluded that there was no agreement to store the materials
in the PSI compound and that Jardiolin was the owner of the
subject material.22
Further, it was the opinion of the trial court that the case was
filed not for the recovery of the subject construction materials
but due to Cembranos motive to take revenge on Jardiolin.
The court based this on the testimony of one Imee Vilches who
testified that she was the girlfriend of Cembrano and that they
have a daughter. Their relationship started in 1996 and it lasted
until April 26, 2001. She testified that Cembrano was extremely
jealous of Jardiolin who, compared to him, was more talented,
good looking and intelligent. The RTC pointed out that Ms.
Vilches knew the transactions between Cembrano and PSI
because she is the consultant and accountant of PSI.23
Also, the RTC found that Cembrano was not able to prove that
he was authorized by the Board of Directors of Golden Delta to
file the case.24
Moreover, the RTC noted that even before the filing of the
complaint, the construction materials were in the possession of
respondents. As such, it was Jardiolin who was entitled to the
possession of the subject materials since he was both their
owner and possessor, and no storage agreement was proven
by Golden Delta.25
Aggrieved, Golden Delta sought recourse before the CA,
claiming that the RTC erred:
I
IN HOLDING THAT CHUI HAN SING CEMBRANO, VICEPRESIDENT
AND
MANAGER
OF
APPELLANT
CORPORATION,
HAS
NO
AUTHORITY
TO
REPRESENT/SUE FOR AND ON BEHALF OF APPELLANT.
II
IN RULING THAT NO CONSTRUCTION MATERIALS
BELONGING TO APPELLANT [WAS] EVER RECEIVED BY
APPELLEES AND STORED AT THE PSI COMPOUND.

V
IN GIVING ABSOLUTE CREDENCE, AND SWALLOWING
HOOK, LINE, AND SINKER THE TESTIMONY OF A
MORALLY DEPRAVED AND ADULTEROUS WOMAN, IMEE
VILCHES; AND
VI
IN
AWARDING
ATROCIOUS,
SCANDALOUSLY
EXHORBITANT AND GARGANTUAN AMOUNTS OF
DAMAGES WHICH ARE TOTALLY UNPROVED.26
On July 22, 2005, the CA rendered a Decision27 affirming with
modification the decision of the RTC. In its decision, the CA
found that Cembrano had the personality to appear and
represent Golden Delta. It, however, agreed with the RTC that
Golden Delta was not able to prove by a scintilla of evidence
that it is the owner of the subject materials and that it is entitled
to their possession. Further, the appellate court reduced the
monetary awards granted to Jardiolin and Setias. The decretal
portion of the decision reads:
WHEREFORE, premises considered, the assailed Decision
under review dated March 17, 2003 of the Regional Trial Court,
6th Judicial Region, Branch 32, Iloilo City, in Civil Case No. 0227020, is hereby MODIFIED as follows:
A. To defendant Jerry Jardiolin:
1. The award of Attorneys Fees and
Acceptance Fee is reduced from
P600,000.00 [sic] to P100,000.00;
2. The award of moral damages is
reduced from P3,500,000.00 to
P200,000.00; and
3. The award of exemplary
damages
is
reduced
from
P1,000,000.00 to P100,000.00;
B. To defendant Zeon Setias:
1. The award of Attorneys Fees and
Acceptance Fee is reduced from
P1,000,000.00 to P100,000.00;

III

2. The award of moral damages is

reduced from P3,500,000.00 to
P200,000.00; and

IN FINDING THAT THE CONSTRUCTION MATERIALS

SUBJECT OF THIS CASE [ARE] OWNED BY APPELLEES
AND NOT BY APPELLANT.

3. The award of exemplary

damages
is
reduced
from
P1,000,000.00 to P100,000.00;

IV
IN CONCLUDING THAT THE CONSTRUCTION MATERIALS,
SUBJECT OF THIS CASE, ARE NOT PARTICULARLY
DESCRIBED AND ARE INCORPOREAL PERSONAL
PROPERTIES, HENCE, NOT SUBJECT OF REPLEVIN.

In all respects, the assailed decision is

hereby AFFIRMED except the portion
wherein the trial court erroneously ruled that
herein appellant was not able to prove that
he was authorized by the Board of Directors
of Golden (Iloilo) Delta Sales Corp.

69

SO ORDERED.28
Thereafter, Golden Delta filed a motion for reconsideration,
insisting that it is the owner of the construction materials
purportedly delivered to the PSI compound for storage. Golden
Delta also asserted that there was no evidence or legal basis
for the award of moral and exemplary damages, as well as
attorneys fees in favor of Jardiolin and Setias.29 On February
20, 2007, the CA rendered an Amended Decision30 partially
granting Golden Deltas motion, the dispositive portion of which
reads:
WHEREFORE, after due consideration, the instant motion is
GRANTED in PART. This courts decision promulgated on July
22, 2005, is AFFIRMED as to the dismissal of plaintiffappellants complaint. However, the award of moral and
exemplary damages and attorneys fees to defendants Jerry
Jardiolin and Zeon Setias is hereby DELETED and SET
ASIDE and the counterclaim of appellees is likewise
DISMISSED.
SO ORDERED.31
The CA concluded that after a reevaluation and thorough
perusal of the evidence presented by both parties, it likewise
found that Golden Delta failed to present convincing and
concrete evidence to support its claim of ownership and rightful
possession of the subject construction materials. However, the
CA found the award for moral and exemplary damages and
attorneys fees to Jardiolin and Setias to be without sufficient
basis.32
Not contented with the amended decision, Golden Delta filed
the petition here, assigning as errors the action of the appellate
court:
I
IN FINDING THAT THERE IS NO PROOF THAT PETITIONER
EVER DELIVERED CONSTRUCTION MATERIALS SUBJECT
OF THE CONTROVERSY, INTO PSIs COMPOUND.
II
IN RULING THAT RESPONDENT JERRY H. JARDIOLIN, NOT
PETITIONER, IS THE PRESUMED OWNER OF THE
CONTESTED CONSTRUCTION MATERIALS.
III
IN CONVENIENTLY PASSING SUB-SILENCIO THE VERY
CRUCIAL ISSUE, WHETHER OR NOT THE TRIAL COURT
(RTC, BR. 32, ILOILO) PRESIDING JUDGE, HON. LOLITA
CONTRERAS-BESANA, WHO HERSELF CONFESSED HER
PROXIMATE CONSANGUINITAL RELATION WITH ATTY.
LEONARDO JIZ, COUNSEL FOR RESPONDENTS IN THE
TRIAL COURT, SHOULD HAVE INHIBITED HERSELF FROM
HEARING THE CASE. THE VERY FACT SHE (BESANA)
PURSUED IN THE OTHER EARLIER CASES BEFORE HER
WHEREIN ATTY. JIZ WAS A PARTY, AND IN NOT
NULLYFYING OR AT THE VERY LEAST, REVERSING, THE
DECISION OF THE TRIAL COURT ON GROUNDS OF
CLEAR BIAS AND BEREFT OF EVIDENTIARY BASIS, AS
BORNE BY THE RECORDS.

IV
IN NOT RESOLVING RESPONDENTS MOTION FOR LEAVE
TO ADMIT THEIR VERY BELATEDLY FILED APPELLEES
BRIEF, WHICH IS ACTUALLY IN THE NATURE OF A MOTION
FOR
RECONSIDERATION
OVER
ITS
EARLIER
RESOLUTION DIRECTING THE CASE SUBMITTED FOR
DECISION WITHOUT THE APPELLEES BRIEF, IN THE FACE
OF PETITIONERS VIGOROUS AND WELL FOUNDED
OPPOSITION, BEFORE RENDERING ITS DECISION,
THEREBY VIOLAT[ING] PETITIONERS RIGHT TO DUE
PROCESS.33
Petitioner argues that the conclusions of the RTC and CA are
not only utterly baseless but, worse, contrary to the evidence
on record and the law. Respondents allegedly failed to produce
any evidence, in the form of purchase orders, delivery receipts,
proof of payment, and the like, that would prove that the
subject construction materials are owned by Jardiolin.34
Golden Delta insists that sufficient evidence was presented to
show that the construction materials subject of the controversy
were delivered and stored in PSIs compound, but the CA
refused to consider it and concluded instead that the ownership
and possession thereof were presumed to belong to Jardiolin.35
The above conclusion, says Golden Delta, which is evidently
based on a presumption, clearly showed that there was no
direct, clear, concrete and positive evidence of the fact of
ownership.36 Golden Delta likewise faults the appellate court for
keeping mum on the question it raised on the trial judges
partiality, considering her close blood relation with PSIs
counsel.37 Lastly, Golden Delta avers that the CA should have
first resolved whether or not to admit respondents brief before
deciding the case on the merits. Failure to do so, says Golden
Delta, amounts to a denial of due process.38
Respondents, on the other hand, claim that only questions of
law may be raised in a Petition for Review on Certiorari under
Rule 45; that both the CA and the RTC found that petitioner did
not store construction materials at the compound of PSI and
neither was its ownership established; that both the CA and the
RTC found that petitioner did not offer any written evidence
showing that the construction materials were received by
respondents personnel; that the alleged bias and partiality of
the trial judge were never raised as an issue before the CA,
hence, it cannot be raised for the first time in the instant
petition; that when the CA noted the entry of appearance of
Gellada Law Office in substitution of respondents former
counsel, Atty. Leonardo E. Jiz, it impliedly noted and admitted
its belated Appellees Brief; that the instant petition is
premature because the Partial Motion for Reconsideration of
the CAs Amended Decision it filed is still pending resolution.39
As a rule only questions of law are entertained in petitions for
review on certiorari under Rule 45 of the Rules of Court. The
trial court's findings of fact, especially when affirmed by the CA,
are generally binding and conclusive upon this Court. However,
the rule allows certain exceptions. Among the recognized
exceptions are: (1) when the conclusion is grounded on
speculations, surmises or conjectures; (2) when the inference
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 there is no citation of specific evidence on
which the factual findings are based; (7) when the finding of
facts is contradicted by the evidence on record; (8) when the

70

CA manifestly overlooked certain relevant and undisputed facts

that, if properly considered, would justify a different conclusion;
(9) when the findings of the CA are beyond the issues of the
case; and, (10) when such findings are contrary to the
admissions of the parties.40
This case falls under the exceptions. The findings of the CA are
contrary to the evidence, which it grossly misappreciated, and
to the judicial admissions of respondents. In fine, the findings
and conclusions of the CA are contrary to the undisputed facts
and clear evidence on record.
Petitioner Golden Delta clearly delivered construction materials
to the PSI compound. There is sufficient basis in both
respondents judicial admissions and the evidence on record
that indeed construction materials were delivered by petitioner
in the PSI compound. Allegations, statements and admissions
made by a party in his pleadings are binding upon him. He
cannot subsequently take a position contradictory or
inconsistent with his admissions.[41] Respondents PSI and
Setias admitted in their Answer: Petitioner Golden Delta clearly
delivered construction materials to the PSI compound. There is
sufficient basis in both respondents judicial admissions and the
evidence on record that indeed construction materials were
delivered by petitioner in the PSI compound. Allegations,
statements and admissions made by a party in his pleadings
are binding upon him. He cannot subsequently take a position
contradictory or inconsistent with his admissions. 41
Respondents PSI and Setias admitted in their Answer:
12. That although the plaintiff (Golden Delta) delivered
construction materials at the PSI Compound, it was only on
occasion when herein defendants bought some construction
materials from them or when plaintiffs delivered construction
materials to JERRY JARDIOLIN and that were stocked at a
separated area designated for the latter.
xxx
14. That herein defendants do not interfere with the affairs and
activities of the plaintiff and JERRY JARDIOLIN as their
operation does not interfere with our companys operation; that
although plaintiff delivers also construction materials to
JERRY JARDIOKIN [sic], the transaction is purely between
them and that herein defendants has [sic] no participation their
[sic] whatsoever.42(Emphasis supplied)
The CA, however, said that petitioner failed to prove as to how
much or how many of these construction materials were
actually stored at the PSI compound.43
The CA simply ignored the evidentiary impact of the
voluminous withdrawal slips and inventory lists (Exhs. G to
CC, inclusive) prepared and testified to by petitioners
personnel proving the exact quantity and specifications of
these construction materials stored at the PSI compound.
Furthermore, a list of these construction materials with their
respective quantities and descriptions, was annexed to the
petitioners complaint for replevin.44This list was never denied
by respondents in their respective Answers, much less refuted
by them during the trial.
The CAs findings that these inventory lists45that were testified
to by petitioners witnesses were not signed or acknowledged
by any of respondents personnel do not militate against their

evidentiary value. As correctly pointed out by petitioner, the

withdrawal slips and inventory lists do not bear the signature of
any PSI officer/personnel because, as admitted by PSI and
Setias in their Answer, they do not interfere with the affairs and
activities of Golden Delta and Jardiolin as their operations do
not interfere with their companys operation and that although
Golden Delta delivers construction materials to Jardiolin, the
transaction is purely between the two of them and that they
have no participation in their transactions whatsoever.46
Nor can it be contended that the inventory lists are self-serving
simply because they were prepared by petitioners employees.
These documents were prepared ante litem motam, and
without anticipation that any litigation between the parties may
ensue in the future. In Philippine Airlines, Inc. v. Ramos,47 this
Court
held
that
a
writing
or
document
made
contemporaneously with a transaction which evidenced facts
pertinent to the issue, when adduced as proof of those facts, is
ordinarily regarded as more reliable proof and of greater
probative force than the oral testimony of a witness as to such
facts based upon memory and recollection. Statements, acts or
conducts accompanying or so nearly connected with the main
transaction as to form part of it, and which illustrate, elucidate,
qualify or characterize the act, are admissible as part of the res
gestae.48
In the present case, the withdrawal slips and inventory lists
were prepared by the petitioners employees who were
detailed at the PSI compound, in the regular course of its
business, made contemporaneously with the transaction, and
in the performance of their regular duties without anticipation of
any future litigation which may arise between petitioner and
PSI. They should have been afforded great weight and
credence as evidence.
Petitioners voluminous documentary evidence consisting of
certifications and invoices49 of its purchase and shipment to it
of construction materials by its suppliers Chuabenco
Resources, Inc., Bian Steel Corp., Pag-asa Steel Works Inc.,
Lapu-Lapu Steel Industries and Metal Steel Corp. prove that
the subject construction materials belong to it. The admissions
of respondents that they bought construction materials from
petitioner which were stocked at its own compound proved that
petitioner owned the materials and such ownership was
recognized by respondents by the mere fact that they
purchased some of the construction materials from petitioner.
Moreover, the metal tags bearing the name Golden Delta[50]
attached to some of the construction materials that were seized
by the NBI from the truck of respondent Jardiolin are also proof
of petitioners ownership.
Furthermore, witnesses Arman Zarragosa51 and Rudy Yap,52
regular customers of petitioner, testified that whenever they
purchased construction goods from petitioner they would
withdraw the purchased materials from the PSI compound.
Their testimonies and those of petitioners personnel, namely,
Messrs. Marvin Llorente,53 Manuel Serue54 and Jocelyn
Santacera,55 that they supervised the delivery and withdrawals
of construction materials from the PSI compound have not
been contradicted by any of respondents evidence on record.
On the other hand, respondents proof of ownership over the
subject construction materials consisting of sales invoices of
Chuabenco Resources, Inc.,56Lapu-Lapu Steel Industries57 and
Oakland Metal Corporation58 does not buttress their claim. As
correctly pointed out by the petitioner, the sales invoices issued

71

by Chuabenco Resources, Inc. were disclaimed by it in a

Certification59 stating that it has no business transaction with
PSI and neither sold any hardware or construction materials to
PSI nor has it received payment from the latter. Also, the sales
invoice of Lapu-Lapu Steel Industries refers to corrugated tie
wires, which were not among the materials sought to be
recovered by petitioner in the complaint. Aside from these
sales invoices, no other documentary evidence was presented
by Jardiolin or PSI to prove their ownership of the controverted
materials.

No

costs.

SO ORDERED.

Furthermore, it appears that respondents themselves cannot

even agree on who among them is the real owner of the
subject construction materials. In his Answer, Jardiolin claimed
ownership over the construction materials, viz:
4. In so far as the defendant Jardiolin is concerned, the stocks
of construction materials inside the compound of PSI now
being claimed by the plaintiff were not owned by the plaintiff
but by defendant Jardiolin. Furthermore, defendant Jardiolin
requested the stoppage of the removal of the construction
materials being claimed by the plaintiff, because there
materials were the personal properties of defendant Jardiolin.
The representative of the plaintiff was not intimidated or
coerced into stopping the alleged removal of the construction
materials.60
In respondent PSI and Jardiolins letter to the NBI, 61 Jardiolin
stated under oath that the subject construction materials
belonged to PSI, not to him:
The construction materials that you (NBI) seized consisting of
12mm x 20 round bars; 2,150 pcs. round bars; 182 pcs.
x2x20 and 43 pcs. C purlins 2x4x20 angle bars, were not
stolen but are owned and legally possessed by Pre-Stress
International Phil. as shown by machine copies of the
Sales Invoices of the construction materials seized by the
agents of NBI as annexes A, B, C. (Emphasis
supplied)
The CA found that indeed there was an agreement between
petitioner and Jardiolin with respect to the construction
materials stored at the PSI compound, but the specifics of the
agreement were not clear. Hence, the CA concluded that
Jardiolin was the presumed owner of the construction
materials.62 This conclusion is based on pure conjecture and
not on the evidence.
From all the foregoing, it is evident that the findings of the CA
are contrary to the evidence and the admissions in the
pleadings.
WHEREFORE, the petition is GRANTED and the Decision of
July 22, 2005 and the Amended Decision of February 20, 2007
of the Court of Appeals are REVERSED and SET ASIDE.
Respondents Pre-Stress International Corporation, Zeon
Setias and Jerry Jardiolin are DIRECTED, jointly and severally,
to return to petitioner Golden (Iloilo) Delta Sales Corporation all
the construction materials subject of the complaint or to
indemnify petitioner the sum of P3,338,750 representing their
value. Respondents are further ordered to pay petitioner
interest on the principal amount at the legal rate from the date
of filing of the complaint on January 8, 2002 until finality of this
judgment and at twelve percent (12%) from such time until its
satisfaction.

72

EIGHTH DIVISION OF THE COURT OF APPEALS, AND

LABOR ARBITER ERMITA C. CUYUGA, Petitioner,
DECISION
TINGA, J.:
This Petition for Certiorari1 under Rule 65 of the Rules of Court
seeks to annul the Decision2 and Resolution3 of the Court of
Appeals, dated 16 November 2005 and 2 February 2006,
respectively, which upheld the validity of the dismissal of
Juanito Talidano (petitioner). The challenged decision reversed
and set aside the Decision4 of the National Labor Relations
Commission (NLRC) and reinstated that of the Labor Arbiter.5
Petitioner was employed as a second marine officer by Falcon
Maritime and Allied Services, Inc. (private respondent) and was
assigned to M/V Phoenix Seven, a vessel owned and operated
by Hansu Corporation (Hansu) which is based in Korea. His
one (1)-year contract of employment commenced on 15
October 1996 and stipulated the monthly wage at $900.00 with
a fixed overtime pay of $270.00 and leave pay of $75.00.6
Petitioner claimed that his chief officer, a Korean, always
discriminated against and maltreated the vessels Filipino crew.
This prompted him to send a letter-complaint to the officer-incharge of the International Transport Federation (ITF) in
London, a measure that allegedly was resented by the chief
officer. Consequently, petitioner was dismissed on 21 January
1997. He filed a complaint for illegal dismissal on 27 October
1999.7
Private respondent countered that petitioner had voluntarily
disembarked the vessel after having been warned several
times of dismissal from service for his incompetence,
insubordination, disrespect and insulting attitude toward his
superiors. It cited an incident involving petitioners
incompetence wherein the vessel invaded a different route at
the Osaka Port in Japan due to the absence of petitioner who
was then supposed to be on watch duty. As proof, it presented
a copy of a fax message, sent to it on the date of incident,
reporting the vessels deviation from its course due to
petitioners neglect of duty at the bridge,8 as well as a copy of
the report of crew discharge issued by the master of M/V
Phoenix Seven two days after the incident.9
Private respondent stated that since petitioner lodged the
complaint before the Labor Arbiter two (2) years and nine (9)
months after his repatriation, prescription had already set in by
virtue of Revised POEA Memorandum Circular No. 55, series
of 1996 which provides for a one-year prescriptive period for
the institution of seafarers claims arising from employment
contract.10

G.R. No. 172031

July 14, 2008

JUANITO
TALIDANO,
Respondents.
vs.
FALCON MARITIME & ALLIED SERVICES, INC., SPECIAL

On 5 November 2001, the Labor Arbiter rendered judgment

dismissing petitioners complaint, holding that he was validly
dismissed for gross neglect of duties. The Labor Arbiter relied
on the fax messages presented by private respondent to prove
petitioners neglect of his duties, thus:
x x x The fax message said that the Master of M/V Phoenix
Seven received an emergency warning call from Japan Sisan
Sebo Naika Radio Authority calling attention to the Master of
the vessel M/V Phoenix Seven that his vessel is invading other
route [sic]. When the Master checked the Bridge, he found out

73

that the Second Officer (complainant) did not carry out his duty
wathch. There was a confrontation between the Master and the
Complainant but the latter insisted that he was right. The
argument of the Complainant asserting that he was right
cannot be sustained by this Arbitration Branch. The fact that
there was an emergency call from the Japanese port authority
that M/V Phoenix Seven was invading other route simply
means that Complainant neglected his duty. The fax message
stating that Complainant was not at the bridge at the time of
the emergency call was likewise not denied nor refuted by the
Complainant. Under our jurisprudence, any material allegation
and/or document which is not denied specifically is deemed
admitted. If not of the timely call [sic] from the port authority
that M/V Phoenix Seven invaded other route, the safety of the
vessel, her crew and cargo may be endangered. She could
have collided with other vessels because of complainants
failure to render watch duty.11
On appeal, the NLRC reversed the ruling of the Labor Arbiter
and declared the dismissal as illegal. The dispositive portion of
the NLRCs decision reads:
WHEREFORE, premises considered, the decision appealed
from is hereby reversed and set aside and a new one entered
declaring the dismissal of the complainant as illegal.
Respondents Falcon Maritime & Allied Services, Inc. and
Hansu Corporation are hereby ordered to jointly and severally
pay complainant the amount equivalent to his three (3) months
salary as a result thereof.12
The NLRC held that the fax messages in support of the alleged
misbehavior and neglect of duty by petitioner have no
probative value and are self-serving. It added that the ships
logbook should have been submitted in evidence as it is the
repository of all the activities on board the vessel, especially
those affecting the performance or attitude of the officers and
crew members, and, more importantly, the procedures
preparatory to the discharge of a crew member. The NLRC
also noted that private respondent failed to comply with due
process in terminating petitioners employment.13
Private respondent moved for reconsideration,14 claiming that
the complaint was filed beyond the one-year prescriptive
period. The NLRC, however, denied reconsideration in a
Resolution dated 30 August 2002.15 Rejecting the argument
that the complaint had already prescribed, it ruled:
Records show that respondent in this case had filed a motion
to dismiss on the ground of prescription before the Labor
Arbiter a quo who denied the same in an Order dated August 1,
2000. Such an Order being unappealable, the said issue of
prescription cannot be raised anew specially in a motion for
reconsideration. (Citations omitted)16

(1) [T]he VERIFICATION AND CERTIFICATION OF

NON-FORUM SHOPPING was signed by one Florida
Z. Jose, President of petitioner Falcon Maritime and
Allied Services, Inc., without proof that she is the duly
authorized representative of petitioner-corporation;
(2) [T]here is no affidavit of service of the petition to
the National Labor Relations Commission and to the
adverse party;
(3) [T]here is no explanation to justify service by mail
in lieu of the required personal service. (Citations
omitted)20
An entry of judgment was issued by the clerk of court on 23
November 2002 stating that the 29 October 2002 Resolution
had already become final and executory.21 Meanwhile, on 12
November 2002, private respondent filed another petition
before the Court of Appeals,22 docketed as CA G.R. SP No.
73790. This is the subject of the present petition.
Petitioner dispensed with the filing of a comment. 23 In his
Memorandum,24 however, he argued that an entry of judgment
having been issued in CA-G.R. SP No. 73521, the filing of the
second petition hinging on the same cause of action after the
first petition had been dismissed violates not only the rule on
forum shopping but also the principle of res judicata. He
highlighted the fact that the decision subject of the second
petition before the Court of Appeals had twice become final
and executory, with entries of judgment made first by the NLRC
and then by the Court of Appeals.
The appellate court ultimately settled the issue of prescription,
categorically declaring that the one-year prescriptive period
applies only to employment contracts entered into as of 1
January 1997 and not those entered prior thereto, thus:
x x x The question of prescription is untenable. Admittedly,
POEA Memorandum Circular [No.] 55 prescribing the standard
terms of an employment contract of a seafarer was in effect
when the respondent was repatriated on January 21, 1997.
This administrative issuance was released in accordance with
Department Order [No.] 33 of the Secretary of Labor directing
the revision of the existing Standard Employment Contract to
be effective by January 1, 1997. Section 28 of this revised
contract states: all claims arising therefrom shall be made
within one year from the date of the seafarers return to the
point of hire.

It appears that respondent received a copy of the NLRC

Resolution17 on 24 September 2002 and that said resolution
became final and executory on 7 October 2002.18

It is crystal clear that the one-year period of prescription of

claims in the revised standard contract applies only to
employment contracts entered into as of January 1, 1997. If
there is still any doubt about this, it should be removed by the
provision of Circular [No.] 55 which says that the new schedule
of benefits to be embodied in the standard contract will apply to
any Filipino seafarer that will be deployed on or after the
effectivity of the circular.

Private respondent brought the case to the Court of Appeals

via a Petition for Certiorari19 on 8 October 2002. The petition,
docketed as CA-G.R. Sp. No. 73521, was dismissed on
technicality in a Resolution dated 29 October 2002. The
pertinent portion of the resolution reads:

The respondent was deployed before January 1, 1997. As

acknowledged by the petitioners, the rule prior to Circular [No.]
55 provided for a prescriptive period of three years. We cannot
avoid the ineluctable conclusion that the claim of the
respondent was filed within the prescriptive period.25

74

Despite ruling that prescription had not set in, the appellate
court nonetheless declared petitioners dismissal from
employment as valid and reinstated the Labor Arbiters
decision.
The appellate court relied on the fax messages issued by the
ship master shortly after petitioner had committed a serious
neglect of his duties. It noted that the said fax messages
constitute the res gestae. In defending the non-presentation of
the logbook, it stated that three years had already passed
since the incident and Hansu was no longer the principal of
private respondent.
Petitioners motion for reconsideration was denied. Hence he
filed this instant petition.
Citing grave abuse of discretion on the part of the Court of
Appeals, petitioner reiterates his argument that the appellate
court should not have accepted the second petition in view of
the fact that a corresponding entry of judgment already has
been issued. By filing the second petition, petitioner believes
that private respondent has engaged in forum shopping.26
Private respondent, for its part, defends the appellate court in
taking cognizance of the second petition by stressing that there
is no law, rule or decision that prohibits the filing of a new
petition for certiorari within the reglementary period after the
dismissal of the first petition due to technicality.27 It rebuts
petitioners charge of forum shopping by pointing out that the
dismissal of the first petition due to technicality has not ripened
into res judicata, which is an essential element of forum
shopping.28
In determining whether a party has violated the rule against
forum shopping, the test to be applied is whether the elements
of litis pendentia are present or whether a final judgment in one
case will amount to res judicata in the other. 29 This issue has
been thoroughly and extensively discussed and correctly
resolved by the Court of Appeals in this wise:
The respondents two arguments essay on certain
developments in the case after the NLRC rendered its
decision. He points out with alacrity that an entry of judgment
was issued twice first by the NLRC with respect to its
decision and then by the Ninth Division of the Court of Appeals
after it dismissed on technical grounds the first petition for
certiorari filed by the petitioner. Neither event, for sure, militates
against the institution of a second petition for certiorari. A
decision of the NLRC is never final for as long as it is the
subject of a petition for certiorari that is pending with a superior
court. A contrary view only demeans our certiorari jurisdiction
and will never gain currency under our system of appellate
court review. It is more to the point to ask if a second petition
can stand after the first is dismissed, but under the particular
circumstances in which the second was brought, we hold that it
can. The theory of res judicata invoked by the respondent to
bar the filing of the second petition does not apply. The
judgment or final resolution in the first petition must be on the
merits for res judicata to inhere, and it will not be on the merits
if it is founded on a consideration of only technical or collateral
points. Yet this was exactly how the first petition was disposed
of. SP 73521 was dismissed as a result of the failure of the
petitioner to comply with the procedural requirements of a
petition for certiorari. The case never touched base. There was
no occasion for the determination of the substantive rights of
the parties and, in this sense, the merits of the case were not

involved. The petitioner had actually the option of either refilling

[sic] the case or seeking reconsideration in the original action.
It chose to file SP 73790 after realizing that it still had enough
time left of the original period of 60 days under Rule 65 to do
so.
Since the dismissal of the first petition did not ripen into res
judicata, it may not be said that there was forum shopping with
the filing of the second. The accepted test for determining
whether a party violated the rule against forum shopping
insofar as it is applicable to this setting is whether the judgment
or final resolution in the first case amounts to res judicata in the
second. Res judicata is central to the idea of forum shopping.
Without it, forum shopping is non-existent. The dismissal of the
first petition, moreover, if it does not amount to res judicata,
need not be mentioned in the certification of non-forum
shopping accompanying the second action. The omission will
not be fatal to the viability of the second case. (Citations
omitted)30
Private respondent, in turn, questions the propriety of the
instant certiorari petition and avers that the issues raised by
petitioner can only be dealt with under Rule 45 of the Rules of
Court.31 Against this thesis, petitioner submits that the
acceptance of the petition is addressed to the sound discretion
of this Court.32
The proper remedy to assail decisions of the Court of Appeals
involving final disposition of a case is through a petition for
review under Rule 45. In this case, petitioner filed instead a
certiorari petition under Rule 65. Notwithstanding this
procedural lapse, this Court resolves to rule on the merits of
the petition in the interest of substantial justice, 33 the underlying
consideration in this petition being the arbitrary dismissal of
petitioner from employment.
Petitioner submits that the Court of Appeals erred in relying
merely on fax messages to support the validity of his dismissal
from employment. He maintains that the first fax message
containing the information that the vessel encroached on a
different route was a mere personal observation of the ship
master and should have thus been corroborated by evidence,
and that these fax messages cannot be considered as res
gestae because the statement of the ship master embodied
therein is just a report. He also contends that he has not
caused any immediate danger to the vessel and that if he did
commit any wrongdoing, the incident would have been
recorded in the logbook. Thus, he posits that the failure to
produce the logbook reinforces the theory that the fax
messages have been concocted to justify his unceremonious
dismissal from employment. Hence, he believes that his
dismissal from employment stemmed from his filing of the
complaint with the ITF which his superiors resented.34
Private respondent insists that the appellate court is correct in
considering the fax messages as res gestae statements. It
likewise emphasizes that non-presentment of the logbook is
justified as the same could no longer be retrieved because
Hansu has already ceased to be its principal. Furthermore, it
refutes the allegation of petitioner that he was dismissed
because he filed a complaint with the ITF in behalf of his fellow
crew members. It claims that petitioners allegation is a hoax
because there is no showing that the alleged complaint has
been received by the ITF and that no action thereon was ever
taken by the ITF.35

75

Private respondent also asserts that petitioner was not

dismissed but that he voluntarily asked for his repatriation. This
assertion, however, deserves scant consideration. It is highly
illogical for an employee to voluntarily request for repatriation
and then file a suit for illegal dismissal. As voluntary
repatriation is synonymous to resignation, it is proper to
conclude that repatriation is inconsistent with the filing of a
complaint for illegal dismissal.36
The paramount issue therefore boils down to the validity of
petitioners dismissal, the determination of which generally
involves a question of fact. It is not the function of this Court to
assess and evaluate the facts and the evidence again, our
jurisdiction being generally limited to reviewing errors of law
that might have been committed by the trial court or
administrative agency. Nevertheless, since the factual findings
of the Court of Appeals and the Labor Arbiter are at variance
with those of the NLRC, we resolve to evaluate the records and
the evidence presented by the parties.37
The validity of an employee's dismissal hinges on the
satisfaction of two substantive requirements, to wit: (1) the
dismissal must be for any of the causes provided for in Article
282 of the Labor Code; and (2) the employee was accorded
due process, basic of which is the opportunity to be heard and
to defend himself.38
The Labor Arbiter held that petitioners absence during his
watch duty when an emergency call was received from the
Japanese port authority that M/V Phoenix Seven was "invading
other route" constituted neglect of duty, a just cause for
terminating an employee. Records reveal that this information
was related to private respondent via two fax messages sent
by the captain of M/V Phoenix Seven. The first fax message
dated 18 January 1997 is reproduced below:
JUST RECEIVED PHONE CALL FROM
C/OFFICER THAT THEY DECIDED TO
2/OFFICER AT OSAKA PORT.

MASTER N
DISCHARGE

DUE TO MIS-BEHAVIOUR N RESEST [SIC] TO OFFICIAL

ORDER.
CAPT. HAD RECEIVED EMERGENCY WARNING CALL
FROM JAPAN BISAN SETO NAIKAI RADIO AUTHORITY
THAT SHIP IS INVADING OTHER ROUTE.
SO, HE WAS SURPRISED N CAME TO BRIDGE N FOUND
2/O NOT CARRY OUT HIS WATCH DUTY.
MASTER SCOLD HIM ABOUT THIS N CORRECT HIS
ERROR BUT HE RESIST [SIC] THAT HE IS RIGHT AND
THEN SAID THAT HE WILL COME BACK HOME.
FURTHER MORE HE ASKED MASTER TO PAY HIM I.T.F.
WAGE SCALE.
MASTER N/CIO STRONGLY ASKED US HIS REPATRIATION
WITH I.E.U.
PLS. CONFIRM YOUR OPINION ON THIS HAPPENING.39
The second fax message dated 20 January 1997 pertained to
a report of crew discharge essentially containing the same

information as the first fax message. The Court of Appeals

treated these fax messages as part of the res gestae proving
neglect of duty on the part of petitioner.
Section 42 of Rule 13040 of the Rules of Court mentions two
acts which form part of the res gestae, namely: spontaneous
statements and verbal acts. In spontaneous exclamations, the
res gestae is the startling occurrence, whereas in verbal acts,
the res gestae are the statements accompanying the equivocal
act.41 We find that the fax messages cannot be deemed part of
the res gestae.
To be admissible under the first class of res gestae, it is
required that: (1) the principal act be a startling occurrence; (2)
the statements were made before the declarant had the time to
contrive or devise a falsehood; and (3) that the statements
must concern the occurrence in question and its immediate
attending circumstances.42
Assuming that petitioners negligencewhich allegedly caused
the ship to deviate from its courseis the startling occurrence,
there is no showing that the statements contained in the fax
messages were made immediately after the alleged incident. In
addition, no dates have been mentioned to determine if these
utterances were made spontaneously or with careful
deliberation. Absent the critical element of spontaneity, the fax
messages cannot be admitted as part of the res gestae of the
first kind.
Neither will the second kind of res gestae apply. The requisites
for its admissibility are: (1) the principal act to be characterized
must be equivocal; (2) the equivocal act must be material to
the issue; (3) the statement must accompany the equivocal act;
and (4) the statements give a legal significance to the
equivocal act.43
Petitioners alleged absence from watch duty is simply an
innocuous act or at least proved to be one. Assuming arguendo
that such absence was the equivocal act, it is nevertheless not
accompanied by any statement more so by the fax statements
adverted to as parts of the res gestae. No date or time has
been mentioned to determine whether the fax messages were
made simultaneously with the purported equivocal act.
Furthermore, the material contents of the fax messages are
unclear. The matter of route encroachment or invasion is
questionable. The ship master, who is the author of the fax
messages, did not witness the incident. He obtained such
information only from the Japanese port authorities. Verily, the
messages can be characterized as double hearsay.
In any event, under Article 282 of the Labor Code, 44 an
employer may terminate an employee for gross and habitual
neglect of duties. Neglect of duty, to be a ground for dismissal,
must be both gross and habitual. Gross negligence connotes
want of care in the performance of ones duties. Habitual
neglect implies repeated failure to perform ones duties for a
period of time, depending upon the circumstances. A single or
isolated act of negligence does not constitute a just cause for
the dismissal of the employee.45
Petitioners supposed absence from watch duty in a single
isolated instance is neither gross nor habitual negligence.
Without question, the alleged lapse did not result in any
untoward incident. If there was any serious aftermath, the

76

incident should have been recorded in the ships logbook and

presented by private respondent to substantiate its claim.
Instead, private respondent belittled the probative value of the
logbook and dismissed it as self-serving. Quite the contrary,
the ships logbook is the repository of all activities and
transactions on board a vessel. Had the route invasion been so
serious as to merit petitioners dismissal, then it would have
been recorded in the logbook. Private respondent would have
then had all the more reason to preserve it considering that
vital pieces of information are contained therein.
In Haverton Shipping Ltd. v. NLRC,46 the Court held that the
vessels logbook is an official record of entries made by a
person in the performance of a duty required by law. 47 In
Abacast Shipping and Management Agency, Inc. v. NLRC, 48 a
case cited by petitioner, the logbook is a respectable record
that can be relied upon to authenticate the charges filed and
the procedure taken against the employees prior to their
dismissal.49 In Wallem Maritime Services, Inc. v. NLRC,50 the
logbook is a vital evidence as Article 612 of the Code of
Commerce requires the ship captain to keep a record of the
decisions he had adopted as the vessel's head.51 Therefore,
the non-presentation of the logbook raises serious doubts as to
whether the incident did happen at all.

from work are entitled to an amount representing their three (3)

months salary considering that their employment contract has
a term of exactly one (1) year plus a full refund of his
placement fee, with interest at 12% per annum.55
IN LIGHT OF THE FOREGOING, the petition is GRANTED.
The Decision of the Court of Appeals is REVERSED and SET
ASIDE. The Decision of the NLRC is REINSTATED with the
MODIFICATION that in addition to the payment of the sum
equivalent to petitioners three (3) months salary, the full
amount of placement fee with 12% legal interest must be
refunded.
SO ORDERED.

In termination cases, the burden of proving just or valid cause

for dismissing an employee rests on the employer.52 Private
respondent miserably failed to discharge this burden.
Consequently, the petitioners dismissal is illegal.
We also note that private respondent failed to comply with the
procedural due process requirement for terminating an
employee. Such requirement is not a mere formality that may
be dispensed with at will. Its disregard is a matter of serious
concern since it constitutes a safeguard of the highest order in
response to man's innate sense of justice. The Labor Code
does not, of course, require a formal or trial type proceeding
before an erring employee may be dismissed. This is
especially true in the case of a vessel on the ocean or in a
foreign port. The minimum requirement of due process in
termination proceedings, which must be complied with even
with respect to seamen on board a vessel, consists of notice to
the employees intended to be dismissed and the grant to them
of an opportunity to present their own side of the alleged
offense or misconduct, which led to the management's
decision to terminate. To meet the requirements of due
process, the employer must furnish the worker sought to be
dismissed with two written notices before termination of
employment can be legally effected, i.e., (1) a notice which
apprises the employee of the particular acts or omissions for
which his dismissal is sought; and (2) the subsequent notice
after due hearing which informs the employee of the
employers decision to dismiss him.531avvphi1
Private respondents sole reliance on the fax messages in
dismissing petitioner is clearly insufficient as these messages
were addressed only to itself. No notice was ever given to
petitioner apprising him in writing of the particular acts showing
neglect of duty. Neither was he informed of his dismissal from
employment. Petitioner was never given an opportunity to
present his side. The failure to comply with the two-notice rule
only aggravated respondents liability on top of dismissing
petitioner without a valid cause.
Pursuant to Section 10 of Republic Act No. 8042 54 or the
Migrant Workers Act, employees who are unjustly dismissed

77

G.R. No. 181354

February 27, 2013

SIMON
A.
FLORES,
Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari under Rule 45 of the
Rules of Court, seeking to annul and set aside the August 2 7,
2004 Decision1 of the Sandiganbayan, First Division
(Sandiganbayan), in Criminal Case No. 16946, finding
petitioner Simon A. Flores (Flores) guilty beyond reasonable
doubt of the crime of Homicide, and its November 29, 2007
Resolution2 denying his motion for reconsideration.
Flores was charged with the crime of Homicide in an
Information, dated July 9, 1991, filed before the
Sandiganbayan which reads:
That on or about the 15th day of August, 1989, at nighttime, in
the Municipality of Alaminos, Province of Laguna, Philippines,
and within the jurisdiction of this Honorable Court, the
abovenamed accused, a public officer, being then the
Barangay Chairman of San Roque, Alaminos, Laguna, while in
the performance of his official functions and committing the
offense in relation to his office, did then and there willfully,
unlawfully, feloniously and with intent to kill, shoot one JESUS
AVENIDO with an M-16 Armalite Rifle, thereby inflicting upon
him several gunshot wounds in different parts of his body,
which caused his instantaneous death, to the damage and
prejudice of the heirs of said JESUS AVENIDO.
CONTRARY TO LAW.3
During his arraignment, on August 26, 1991, Flores pleaded
"Not Guilty" and waived the pre-trial. Thereafter, the
prosecution presented four (4) witnesses, namely: Paulito
Duran, one of the visitors (Duran); Gerry Avenido (Gerry), son
of the victim; Elisa Avenido (Elisa), wife of the victim; and Dr.
Ruben Escueta, the physician who performed the autopsy on
the cadaver of the victim, Jesus Avenido (Jesus).
For its part, the defense presented as witnesses, the accused
Flores himself; his companion-members of the Civilian Action
Force Group Unit (CAFGU), Romulo Alquizar and Maximo H.
Manalo; and Dr. Rene Bagamasbad, resident physician of San
Pablo City District Hospital.
The Version of the Prosecution
On August 15, 1989, on the eve of the barangay fiesta in San
Roque, Alaminos, Laguna, certain visitors, Ronnie de Mesa,
Noli de Mesa, Marvin Avenido, and Duran, were drinking at the
terrace of the house of Jesus. They started drinking at 8:30

78

oclock in the evening. Jesus, however, joined his visitors only

at around 11:00 oclock after he and his wife arrived from Sta.
Rosa, Laguna, where they tried to settle a problem regarding a
vehicular accident involving one of their children. The drinking
at the terrace was ongoing when Flores arrived with an M-16
armalite rifle.4

through the upper right quadrant of the abdomen; on the tip of

the left buttocks to the tip of the sacral bone or hip bone; and
on the right flank towards the umbilicus. The victim died of
massive intra-abdominal hemorrhage due to laceration of the
liver.
The Version of the Defense

Duran testified that Jesus stood up from his seat and met
Flores who was heading towards the terrace. After glancing at
the two, who began talking to each other near the terrace,
Duran focused his attention back to the table. Suddenly, he
heard several gunshots prompting him to duck under the table.
Right after the shooting, he looked around and saw the
bloodied body of Jesus lying on the ground. By then, Flores
was no longer in sight.5
Duran immediately helped board Jesus in an owner-type jeep
to be brought to a hospital. Thereafter, Duran, Ronnie de Mesa
and Noli de Mesa went home. Jesus was brought to the
hospital by his wife and children. Duran did not, at any time
during the occasion, notice the victim carrying a gun with him.6
Gerry narrated that he was going in and out of their house
before the shooting incident took place, anxiously waiting for
the arrival of his parents from Sta. Rosa, Laguna. His parents
were then attending to his problem regarding a vehicular
accident. When they arrived, Gerry had a short conversation
with his father, who later joined their visitors at the terrace.7
Gerry was outside their house when he saw Flores across the
street in the company of some members of the CAFGU. He
was on his way back to the house when he saw Flores and his
father talking to each other from a distance of about six (6)
meters. Suddenly, Flores shot his father, hitting him on the right
shoulder. Flores continued shooting even as Jesus was
already lying flat on the ground. Gerry testified that he felt hurt
to have lost his father.8
Elisa related that she was on her way from the kitchen to serve
"pulutan" to their visitors when she saw Flores, from their
window, approaching the terrace. By the time she reached the
terrace, her husband was already lying on the ground and still
being shot by Flores. After the latter had left, she and her
children rushed him to the hospital where he was pronounced
dead on arrival.9
As a consequence of her husbands untimely demise, she
suffered emotionally. She testified that Jesus had an average
monthly income of Twenty Thousand Pesos (P20,000.00)
before he died at the age of forty-one (41). He left four (4)
children. Although she had no receipt, Elisa asked for actual
damages consisting of lawyers fees in the amount of Fifteen
Thousand Pesos (P15,000.00) plus Five Hundred Pesos
(P500.00) for every hearing, and Six Thousand Five Hundred
Pesos (P6,500.00) for the funeral expenses.10
Dr. Ruben Escueta (Dr. Escueta) testified that on August 17,
1989, he conducted an autopsy on the cadaver of Jesus,
whom he assessed to have died at least six (6) hours before
his body was brought to him.11
Based on the Autopsy Report,12 it appeared that the victim
suffered four gunshot wounds in the different parts of his body,
specifically: on the medial portion of the left shoulder, between
the clavicle and the first rib; on the left hypogastric region

To avoid criminal liability, Flores interposed self-defense.

Flores claimed that in the evening of August 15, 1989, he,
together with four members of the CAFGU and Civil Service
Unit (CSU), Maximo Manalo, Maximo Latayan (Latayan),
Ronilo Haballa, and Romulo Alquizar, upon the instructions of
Mayor Samuel Bueser of Alaminos, Laguna, conducted a
ronda in Barangay San Roque which was celebrating the eve
of its fiesta.13
At around midnight, the group was about 15 meters from the
house of Jesus, who had earlier invited them for some
"bisperas" snacks, when they heard gunshots seemingly
emanating from his house. Flores asked the group to stay
behind as he would try to talk to Jesus, his cousin, to spare the
shooting practice for the fiesta celebration the following day. As
he started walking towards the house, he was stopped by
Latayan and handed him a baby armalite. He initially refused
but was prevailed upon by Latayan who placed the weapon
over his right shoulder, with its barrel or nozzle pointed to the
ground. Latayan convinced Flores that such posture would
gain respect from the people in the house of Jesus.14
Flores then proceeded to the terrace of the house of Jesus,
who was having a drinking spree with four others. In a calm
and courteous manner, Flores asked Jesus and his guests to
cease firing their guns as it was already late at night and to
save their shots for the following days fiesta procession. Flores
claimed that despite his polite, unprovocative request and the
fact that he was a relative of Jesus and the barangay
chairman, a person in authority performing a regular routine
duty, he was met with hostility by Jesus and his guests. Jesus,
who appeared drunk, immediately stood up and approached
him as he was standing near the entrance of the terrace. Jesus
abruptly drew his magnum pistol and poked it directly at his
chest and then fired it. By a twist of fate, he was able to
partially parry Jesus right hand, which was holding the pistol,
and was hit on his upper right shoulder.15
With fierce determination, however, Jesus again aimed his gun
at Flores, but the latter was able to instinctively take hold of
Jesus right hand, which was holding the gun. As they wrestled,
Jesus again fired his gun, hitting Flores left hand.16
Twice hit by bullets from Jesus magnum pistol and profusely
bleeding from his two wounds, Flores, with his life and limb at
great peril, instinctively swung with his right hand the baby
armalite dangling on his right shoulder towards Jesus and
squeezed its trigger. When he noticed Jesus already lying
prostrate on the floor, he immediately withdrew from the house.
As he ran towards the coconut groves, bleeding and utterly
bewildered over the unfortunate incident that just transpired
between him and his cousin Jesus, he heard more gunshots.
Thus, he continued running for fear of more untoward incidents
that could follow. He proceeded to the Mayors house in

79

Barangay San Gregorio, Alaminos, Laguna, to report what had

happened. There, he found his ronda groupmates.17
The incident was also reported the following day to the CAFGU
Superior, Sgt. Alfredo Sta. Ana.
Decision of the Sandiganbayan
On August 27, 2004, after due proceedings, the
Sandiganbayan issued the assailed decision18 finding Flores
guilty of the offense charged. The Sandiganbayan rejected
Flores claim that the shooting was justified for failure to prove
self-defense. It gave credence to the consistent testimonies of
the prosecution witnesses that Flores shot Jesus with an
armalite rifle (M16) which resulted in his death. According to
the Sandiganbayan, there was no reason to doubt the
testimonies of the said witnesses who appeared to have no ill
motive to falsely testify against Flores. The dispositive portion
of the said decision reads:
WHEREFORE, judgment is hereby rendered in Criminal Case
No. 16946 finding the accused Simon A. Flores GUILTY
beyond reasonable doubt of the crime of homicide and to suffer
the penalty of 10 years and 1 day of prision mayor maximum,
as minimum, to 17 years, and 4 months of reclusion temporal
medium, as maximum. The accused is hereby ordered to pay
the heirs of the victim Fifty Thousand Pesos (P50,000.00) as
civil indemnity for the death of Jesus Avenido, another Fifty
Thousand Pesos (P50,000.00) as moral damages, and Six
Thousand Five Hundred Pesos (P6,500.00) as actual or
compensatory damages.
SO ORDERED.19
Flores filed a motion for the reconsideration. As the motion did
not contain any notice of hearing, the Prosecution filed its
Motion to Expunge from the Records Accuseds Motion for
Reconsideration."20

WHETHER THE SANDIGANBAYAN, FIRST DIVISION,

GRAVELY ERRED IN NOT GIVING DUE CREDIT TO
PETITIONERS CLAIM OF SELF-DEFENSE
(II)
WHETHER THE SANDIGANBAYAN, FIRST DIVISION,
COMMITTED SERIOUS BUT REVERSIBLE ERRORS IN
ARRIVING AT ITS FINDINGS AND CONCLUSIONS
(III)
WHETHER THE SANDIGANBAYAN, FIRST DIVISION,
COMMITTED A GRAVE ERROR IN NOT ACQUITTING
PETITIONER OF THE CRIME CHARGED22
The Court will first resolve the procedural issue raised by
Flores in this petition.
Flores claims that the outright denial of his motion for
reconsideration by the Sandiganbayan on a mere technicality
amounts to a violation of his right to due process. The
dismissal rendered final and executory the assailed decision
which was replete with baseless conjectures and conclusions
that were contrary to the evidence on record. He points out that
a relaxation of procedural rules is justified by the merits of this
case as the facts, viewed from the proper and objective
perspective, indubitably demonstrate selfdefense on his part.
Flores argues that he fully complied with the requirements of
Section 2 of Rule 37 and Section 4 of Rule 121 of the Rules of
Court when the motion itself was served upon the prosecution
and the latter, in fact, admitted receiving a copy. For Flores,
such judicial admission amounts to giving due notice of the
motion which is the intent behind the said rules. He further
argues that a hearing on a motion for reconsideration is not
necessary as no further proceeding, such as a hearing, is
required under Section 3 of Rule 121.

In its Resolution, dated November 29, 2007, the

Sandiganbayan denied the motion for being a mere scrap of
paper as it did not contain a notice of hearing and disposed as
follows:

Flores argument fails to persuade this Court.

WHEREFORE, in view of the foregoing, the Motion for

Reconsideration of accused Flores is considered pro forma
which did not toll the running of the period to appeal, and thus,
the assailed judgment of this Court has become FINAL and
EXECUTORY.

SECTION 5. Notice of hearing. The notice of hearing shall be

addressed to all parties concerned, and shall specify the time
and date of the hearing which must not be later than ten (10)
days after the filing of the motion.

Section 5, Rule 15 of the Rules of Court reads:

Section 2, Rule 37 provides:

SO ORDERED.21
Hence, Flores filed the present petition before this Court on the
ground that the Sandiganbayan committed reversible errors
involving questions of substantive and procedural laws and
jurisprudence. Specifically, Flores raises the following

SEC. 2. Contents of motion for new trial or reconsideration and

notice thereof. The motion shall be made in writing stating
the ground or grounds therefore, a written notice of which shall
be served by the movant on the adverse party.
xxxx

ISSUES
(I)

A pro forma motion for new trial or reconsideration shall not toll
the reglementary period of appeal.
Section 4, Rule 121 states:

80

SEC. 4. Form of motion and notice to the prosecutor. The

motion for a new trial or reconsideration shall be in writing and
shall state the grounds on which it is based. X x x. Notice of the
motion for new trial or reconsideration shall be given to the
prosecutor.
As correctly stated by the Office of the Special Prosecutor
(OSP), Sec. 2 of Rule 37 and Sec. 4 of Rule 121 should be
read in conjunction with Sec. 5 of Rule 15 of the Rules of
Court. Basic is the rule that every motion must be set for
hearing by the movant except for those motions which the
court may act upon without prejudice to the rights of the
adverse party.23 The notice of hearing must be addressed to all
parties and must specify the time and date of the hearing, with
proof of service.
This Court has indeed held, time and again, that under
Sections 4 and 5 of Rule 15 of the Rules of Court, the
requirement is mandatory. Failure to comply with the
requirement renders the motion defective. "As a rule, a motion
without a notice of hearing is considered pro forma and does
not affect the reglementary period for the appeal or the filing of
the requisite pleading."24
In this case, as Flores committed a procedural lapse in failing
to include a notice of hearing, his motion was a worthless piece
of paper with no legal effect whatsoever. Thus, his motion was
properly dismissed by the Sandiganbayan.
Flores invokes the exercise by the Court of its discretionary
power to review the factual findings of the Sandiganbayan. He
avers that the ponente as well as the other members of the
First Division who rendered the assailed decision, were not
able to observe the witnesses or their manner of testifying as
they were not present during the trial.25 He, thus, argues that
there was palpable misapprehension of the facts that led to
wrong conclusions of law resulting in his unfounded conviction.

to reserve their shooting for the fiesta when Jesus approached

him, drew a magnum pistol and fired at him. The attack by
Jesus was sudden, unexpected and instantaneous. The intent
to kill was present because Jesus kept pointing the gun directly
at him. As he tried to parry Jesus hand, which was holding the
gun, the latter kept firing. Left with no choice, he was
compelled to use the baby armalite he was carrying to repel
the attack. He asserts that there was lack of sufficient
provocation on his part as he merely requested Jesus and his
drinking buddies to reserve their shooting for the following day
as it was already late at night and the neighbors were already
asleep.
In effect, Flores faults the Sandiganbayan in not giving weight
to the justifying circumstance of self-defense interposed by him
and in relying on the testimonies of the prosecution witnesses
instead.
His argument deserves scant consideration.
The issue of whether Flores indeed acted in self-defense is
basically a question of fact. In appeals to this Court, only
questions of law may be raised and not issues of fact. The
factual findings of the Sandiganbayan are, thus, binding upon
this Court.28 This Court, nevertheless, finds no reason to
disturb the finding of the Sandiganbayan that Flores utterly
failed to prove the existence of self-defense.
Generally, "the burden lies upon the prosecution to prove the
guilt of the accused beyond reasonable doubt rather than upon
the accused that he was in fact innocent." If the accused,
however, admits killing the victim, but pleads self-defense, the
burden of evidence is shifted to him to prove such defense by
clear, satisfactory and convincing evidence that excludes any
vestige of criminal aggression on his part. To escape liability, it
now becomes incumbent upon the accused to prove by clear
and convincing evidence all the elements of that justifying
circumstance.29

His contention is likewise devoid of merit.

"It is often held that the validity of a decision is not necessarily
impaired by the fact that the ponente only took over from a
colleague who had earlier presided at the trial, unless there is a
showing of grave abuse of discretion in the factual findings
reached by him."26
"Moreover, it should be stressed that the Sandiganbayan,
which functions in divisions of three Justices each, is a collegial
body which arrives at its decisions only after deliberation, the
exchange of view and ideas, and the concurrence of the
required majority vote."27
In the present case, Flores has not convinced the Court that
there was misapprehension or misinterpretation of the material
facts nor was the defense able to adduce evidence to establish
that the factual findings were arrived at with grave abuse of
discretion. Thus, the Court sustains the Sandiganbayans
conclusion that Flores shot Jesus and continued riddling his
body with bullets even after he was already lying helpless on
the ground.
Flores insists that the evidence of this case clearly established
all the elements of self-defense. According to him, there was
an unlawful aggression on the part of Jesus. He was just at the
entrance of Jesus terrace merely advising him and his guests

In this case, Flores does not dispute that he perpetrated the

killing of Jesus by shooting him with an M16 armalite rifle. To
justify his shooting of Jesus, he invoked self-defense. By
interposing self-defense, Flores, in effect, admits the
authorship of the crime. Thus, it was incumbent upon him to
prove that the killing was legally justified under the
circumstances.
To successfully claim self-defense, the accused must
satisfactorily prove the concurrence of the elements of selfdefense. Under Article 11 of the Revised Penal Code, any
person who acts in defense of his person or rights does not
incur any criminal liability provided that the following
circumstances concur: (1) unlawful aggression; (2) reasonable
necessity of the means employed to prevent or repel it; and (3)
lack of sufficient provocation on the part of the person
defending himself.
The most important among all the elements is unlawful
aggression. "There can be no self-defense, whether complete
or incomplete, unless the victim had committed unlawful
aggression against the person who resorted to self-defense." 30
"Unlawful aggression is defined as an actual physical assault,
or at least a threat to inflict real imminent injury, upon a person.
In case of threat, it must be offensive and strong, positively
showing the wrongful intent to cause injury. It presupposes

81

actual, sudden, unexpected or imminent dangernot merely

threatening and intimidating action. It is present only when the
one attacked faces real and immediate threat to ones life."31
"Aggression, if not continuous, does not constitute aggression
warranting self-defense."32
In this case, Flores failed to discharge his burden.
The Court agrees with the Sandiganbayans assessment of the
credibility of witnesses and the probative value of evidence on
record. As correctly noted by the Sandiganbayan, the defense
evidence, both testimonial and documentary, were crowded
with flaws which raised serious doubt as to its credibility, to wit:
First, the accused claims that Jesus Avenido shot him on his
right shoulder with a magnum handgun from a distance of
about one (1) meter. With such a powerful weapon, at such
close range, and without hitting any hard portion of his body, it
is quite incredible that the bullet did not exit through the
accuseds shoulder. On the contrary, if he were hit on the part
where the ball and socket were located, as he tried to make it
appear later in the trial, it would be very impossible for the
bullet not to have hit any of the bones located in that area of
his shoulder.
Second, Simon Flores executed an affidavit on September 2,
1989. Significantly, he did not mention anything about a bullet
remaining on his shoulder. If indeed a bullet remained lodged
in his shoulder at the time he executed his affidavit, it defies
logic why he kept mum during the preliminary investigation
when it was crucial to divulge such fact if only to avoid the
trouble of going through litigation. To wait for trial before finally
divulging such a very material information, as he claimed,
simply stretches credulity.
Third, in his feverish effort of gathering evidence to establish
medical treatment on his right shoulder, the accused
surprisingly did not bother to secure the x-ray plate or any
medical records from the hospital. Such valuable pieces of
evidence would have most likely supported his case of selfdefense, even during the preliminary investigation, if they
actually existed and had he properly presented them. The utter
lack of interest of the accused in retrieving the alleged x-ray
plate or any medical record from the hospital militate against
the veracity of his version of the incident.
Fourth, the T-shirt presented by the accused in court had a
hole, apparently from a hard object, such as a bullet, that
pierced through the same. However, the blood stain is visibly
concentrated only on the area around the hole forming a
circular shape. Within five (5) hours and a half from 12:00
oclock midnight when he was allegedly shot, to 5:35 a.m. in
the early morning of August 16, 1989, when his wounds were
treated, the blood would naturally have dripped down to the
hem. The blood on the shirt was not even definitively shown to
be human blood.
Fifth, Jesus Avenido arrived at his house and joined his visitors
who were drinking only at 11:00 oclock in the evening. Both
parties claim that the shooting incident happened more or less
12:00 midnight. Hence, it is very possible that Jesus Avenido
was not yet drunk when the incident in question occurred.
Defense witnesses themselves noted that the victim Jesus
Avenido was bigger in built and taller than the accused.
Moreover, the victim was familiar and very much experienced

with guns, having previously worked as a policeman.1wphi1

In addition, the latter was relatively young, at the age of 41,
when the incident happened. The Court therefore finds it
difficult to accept how the victim could miss when he allegedly
shot the accused at such close range if, indeed, he really had a
gun and intended to harm the accused. We find it much less
acceptable to believe how the accused allegedly overpowered
the victim so easily and wrestled the gun from the latter,
despite allegedly having been hit earlier on his right shoulder.
Finally, it hardly inspires belief for the accused to have
allegedly unlocked, with such ease, the armalite rifle (M16) he
held with one hand, over which he claims to have no
experience handling, while his right shoulder was wounded and
he was grappling with the victim.33 (Underscoring supplied
citations omitted)
The foregoing circumstances indeed tainted Flores credibility
and reliability, his story being contrary to ordinary human
experience. "Settled is the rule that testimonial evidence to be
believed must not only proceed from the mouth of a credible
witness but must foremost be credible in itself. Hence, the test
to determine the value or credibility of the testimony of a
witness is whether the same is in conformity with common
knowledge and is consistent with the experience of mankind."34
The Court also sustains the finding that the testimony of Dr.
Bagamasbad, adduced to prove that Flores was shot by Jesus,
has no probative weight for being hearsay. As correctly found
by the Sandiganbayan:
The testimony of defense witness Dr. Bagamasbad, cannot be
of any help either since the same is in the nature of hearsay
evidence. Dr. Bagamasbads testimony was a mere restatement of what appeared as entries in the hospital logbook
(EXH. "8-a"), over which he admitted to possess no personal
knowledge. The photocopy of the logbook itself does not
possess any evidentiary value since it was not established by
the defense that such evidence falls under any of the
exceptions enumerated in Section 3, Rule 130, which pertain to
the rules on the admissibility of evidence.35 x x x
Granting for the sake of argument that unlawful aggression
was initially staged by Jesus, the same ceased to exist when
Jesus was first shot on the shoulder and fell to the ground. At
that point, the perceived threat to Flores life was no longer
attendant. The latter had no reason to pump more bullets on
Jesus abdomen and buttocks.
Indeed, the nature and number of the gunshot wounds inflicted
upon Jesus further negate the claim of self-defense by the
accused. Records show that Jesus suffered four (4) gunshot
wounds in the different parts of his body, specifically: on the
medial portion of the left shoulder, between the clavicle and the
first rib; on the left hypogastric region through the upper right
quadrant of the abdomen; on the tip of the left buttocks to the
tip of the sacral bone or hip bone; and on the right flank
towards the umbilicus. According to Dr. Ruben Escueta, who
performed the autopsy on the victim, the latter died of massive
intra-abdominal hemorrhage due to laceration of the liver.36 If
there was any truth to Flores claim that he merely acted in
self-defense, his first shot on Jesus shoulder, which already
caused the latter to fall on the ground, would have been
sufficient to repel the attack allegedly initiated by the latter. But
Flores continued shooting Jesus. Considering the number of
gunshot wounds sustained by the victim, the Court finds it

82

difficult to believe that Flores acted to

preserve his own life. "It has been held in
location and presence of several wounds
victim provide physical evidence that
allegations of self-defense."37

defend himself to
this regard that the
on the body of the
eloquently refutes

"When unlawful aggression ceases, the defender no longer

has any justification to kill or wound the original aggressor. The
assailant is no longer acting in self-defense but in retaliation
against the original aggressor."38 Retaliation is not the same as
self-defense. In retaliation, the aggression that was begun by
the injured party already ceased when the accused attacked
him, while in self-defense the aggression still existed when the
aggressor was injured by the accused.39
The Court quotes with approval the following findings of the
Sandiganbayan, thus:
x x x. The difference in the location of the entry and exit points
of this bullet wound was about two to three inches. From the
entry point of the bullet, the shooting could not have taken
place when accused and his victim were standing and facing
each other. Another bullet entered through the medial portion of
the victim's buttocks and exited through his abdominal cavity. A
third bullet entered through the left hypogastric region and
exited at the upper right quadrant of the victim's abdomen. The
respective trajectory of these wounds are consistent with the
testimony of prosecution witnesses Elisa B. Avenido and Arvin
B. Aveniclo that the accused shot Jesus Avenido while the
latter was already lying on the ground. Moreover, according to
Arvin Avenido, the first shot hit his father on the right shoulder
making him fall to the ground. Hence, even on the assumption
that unlawful aggression initially existed, the same had
effectively ceased after the victim was first shot and fell to the
ground. There was no more reason for the accused to pull the
trigger, at least three times more, and continue shooting at the
victim.40 (Emphasis in the original)

G.R. No. 164273

The means employed by a person claiming self-defense must

be commensurate to the nature and the extent of the attack
sought to be averted, and must be rationally necessary to
prevent or repel an unlawful aggression.41 In this case, the
continuous shooting by Flores which caused the fatal gunshot
wounds were not necessary and reasonable to prevent the
claimed unlawful aggression from Jesus as the latter was
already lying flat on the ground after he was first shot on the
shoulder.

The facts are as follows:

In fine, the Sandiganbayan committed no reversible error in

finding accused Flores guilty beyond reasonable doubt of the
crime of homicide.
WHEREFORE, the petition is DENIED.
SO ORDERED.

March 28, 2007

EMMANUEL
B.
AZNAR,
Petitioner,
vs.
CITIBANK, N.A., (Philippines), Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before this Court is a Petition for Review assailing the
Decision1 of the Court of Appeals (CA) in CA-G.R. CV No.
62554 dated January 30, 2004 which set aside the November
25, 1998 Order of the Regional Trial Court (RTC) Branch 10,
Cebu City and reinstated the Decision of RTC Branch 20 of
Cebu City dated May 29, 1998 in Civil Case No. CEB-16474;
and the CA Resolution dated May 26, 2004 denying petitioners
motion for reconsideration.

Emmanuel B. Aznar (Aznar), a known businessman2 in Cebu,

is a holder of a Preferred Master Credit Card (Mastercard)
bearing number 5423-3920-0786-7012 issued by Citibank with
a credit limit of P150,000.00. As he and his wife, Zoraida,
planned to take their two grandchildren, Melissa and Richard
Beane, on an Asian tour, Aznar made a total advance deposit
of P485,000.00 with Citibank with the intention of increasing his
credit limit to P635,000.00.3
With the use of his Mastercard, Aznar purchased plane tickets
to Kuala Lumpur for his group worth P237,000.00. On July 17,
1994, Aznar, his wife and grandchildren left Cebu for the said
destination.4
Aznar claims that when he presented his Mastercard in some
establishments in Malaysia, Singapore and Indonesia, the
same was not honored.5 And when he tried to use the same in
Ingtan Tour and Travel Agency (Ingtan Agency) in Indonesia to
purchase plane tickets to Bali, it was again dishonored for the
reason that his card was blacklisted by Citibank. Such dishonor
forced him to buy the tickets in cash. 6 He further claims that his
humiliation caused by the denial of his card was aggravated
when Ingtan Agency spoke of swindlers trying to use
blacklisted cards.7 Aznar and his group returned to the
Philippines on August 10, 1994.8

83

On August 26, 1994, Aznar filed a complaint for damages

against Citibank, docketed as Civil Case No. CEB-16474 and
raffled to RTC Branch 20, Cebu City, claiming that Citibank
fraudulently or with gross negligence blacklisted his Mastercard
which forced him, his wife and grandchildren to abort important
tour destinations and prevented them from buying certain items
in their tour.9 He further claimed that he suffered mental
anguish, serious anxiety, wounded feelings, besmirched
reputation and social humiliation due to the wrongful
blacklisting of his card.10 To prove that Citibank blacklisted his
Mastercard, Aznar presented a computer print-out,
denominated as ON-LINE AUTHORIZATIONS FOREIGN
ACCOUNT ACTIVITY REPORT, issued to him by Ingtan
Agency (Exh. "G") with the signature of one Victrina Elnado
Nubi (Nubi)11 which shows that his card in question was "DECL
OVERLIMIT" or declared over the limit.12
Citibank denied the allegation that it blacklisted Aznars card. It
also contended that under the terms and conditions governing
the issuance and use of its credit cards, Citibank is exempt
from any liability for the dishonor of its cards by any merchant
affiliate, and that its liability for any action or incident which
may be brought against it in relation to the issuance and use of
its credit cards is limited to P1,000.00 or the actual damage
proven whichever is lesser.13
To prove that they did not blacklist Aznars card, Citibanks
Credit Card Department Head, Dennis Flores, presented
Warning Cancellation Bulletins which contained the list of its
canceled cards covering the period of Aznars trip.14
On May 29, 1998, RTC Branch 20, Cebu City, through Judge
Ferdinand J. Marcos, rendered its decision dismissing Aznars
complaint for lack of merit.15 The trial court held that as
between the computer print-out16 presented by Aznar and the
Warning Cancellation Bulletins17 presented by Citibank, the
latter had more weight as their due execution and authenticity
were duly established by Citibank.18 The trial court also held
that even if it was shown that Aznars credit card was
dishonored by a merchant establishment, Citibank was not
shown to have acted with malice or bad faith when the same
was dishonored.19
Aznar filed a motion for reconsideration with motion to re-raffle
the case saying that Judge Marcos could not be impartial as he
himself is a holder of a Citibank credit card.20 The case was reraffled21 and on November 25, 1998, the RTC, this time through
Judge Jesus S. De la Pea of Branch 10 of Cebu City, issued
an Order granting Aznars motion for reconsideration, as
follows:
WHEREFORE, the Motion for Reconsideration is hereby
GRANTED. The DECISION dated May 29, 1998 is hereby
reconsidered, and consequently, the defendant is hereby
condemned liable to pay the following sums of money:
a) P10,000,000.00 as moral damages;
b) P5,000,000.00 as exemplary damages;
c) P1,000,000.00 as attorneys fees; and
d) P200,000.00 as litigation expenses.22

Judge De la Pea ruled that: it is improbable that a man of

Aznars stature would fabricate Exh. "G" or the computer printout which shows that Aznars Mastercard was dishonored for
the reason that it was declared over the limit; Exh. "G" was
printed out by Nubi in the ordinary or regular course of
business in the modern credit card industry and Nubi was not
able to testify as she was in a foreign country and cannot be
reached by subpoena; taking judicial notice of the practice of
automated teller machines (ATMs) and credit card facilities
which readily print out bank account status, Exh. "G" can be
received as prima facie evidence of the dishonor of Aznars
Mastercard; no rebutting evidence was presented by Citibank
to prove that Aznars Mastercard was not dishonored, as all it
proved was that said credit card was not included in the
blacklisted cards; when Citibank accepted the additional
deposit of P485,000.00 from Aznar, there was an implied
novation and Citibank was obligated to increase Aznars credit
limit and ensure that Aznar will not encounter any
embarrassing situation with the use of his Mastercard;
Citibanks failure to comply with its obligation constitutes gross
negligence as it caused Aznar inconvenience, mental anguish
and social humiliation; the fine prints in the flyer of the credit
card limiting the liability of the bank to P1,000.00 or the actual
damage proven, whichever is lower, is a contract of adhesion
which must be interpreted against Citibank.23
Citibank filed an appeal with the CA and its counsel filed an
administrative case against Judge De la Pea for grave
misconduct, gross ignorance of the law and incompetence,
claiming among others that said judge rendered his decision
without having read the transcripts. The administrative case
was held in abeyance pending the outcome of the appeal filed
by Citibank with the CA.24lawphi1.net
On January 30, 2004, the CA rendered its Decision granting
Citibanks appeal thus:
WHEREFORE, the instant appeal is GRANTED. The assailed
order of the Regional Trial Court, 7th Judicial Region, Branch
10, Cebu City, in Civil Case No. CEB-16474, is hereby SET
ASIDE and the decision, dated 29 May 1998 of the Regional
Trial Court, 7th Judicial Region, Branch 20, Cebu City in this
case is REINSTATED.
SO ORDERED.25
The CA ruled that: Aznar had no personal knowledge of the
blacklisting of his card and only presumed the same when it
was dishonored in certain establishments; such dishonor is not
sufficient to prove that his card was blacklisted by Citibank;
Exh. "G" is an electronic document which must be
authenticated pursuant to Section 2, Rule 5 of the Rules on
Electronic Evidence26 or under Section 20 of Rule 132 of the
Rules of Court27 by anyone who saw the document executed or
written; Aznar, however, failed to prove the authenticity of Exh.
"G", thus it must be excluded; the unrefuted testimony of Aznar
that his credit card was dishonored by Ingtan Agency and
certain establishments abroad is not sufficient to justify the
award of damages in his favor, absent any showing that
Citibank had anything to do with the said dishonor; Citibank
had no absolute control over the actions of its merchant
affiliates, thus it should not be held liable for the dishonor of
Aznars credit card by said establishments.28
Aznar filed a motion for reconsideration which the CA
dismissed in its Resolution dated May 26, 2004.29

84

Parenthetically, the administrative case against Judge De la

Pea was activated and on April 29, 2005, the Courts Third
Division30 found respondent judge guilty of knowingly rendering
an unjust judgment and ordered his suspension for six months.
The Court held that Judge De la Pea erred in basing his
Order on a manifestation submitted by Aznar to support his
Motion for Reconsideration, when no copy of such
manifestation was served on the adverse party and it was filed
beyond office hours. The Court also noted that Judge De la
Pea made an egregiously large award of damages in favor of
Aznar which opened himself to suspicion.31
Aznar now comes before this Court on a petition for review
alleging that: the CA erroneously made its own factual finding
that his Mastercard was not blacklisted when the matter of
blacklisting was already a non-issue in the November 25, 1998
Order of the RTC; the RTC found that Aznars Mastercard was
dishonored for the reason that it was declared over the credit
limit; this factual finding is supported by Exh. "G" and by his
(Aznars) testimony; the issue of dishonor on the ground of
DECL OVERLIMIT, although not alleged in the complaint, was
tried with the implied consent of the parties and should be
treated as if raised in the pleadings pursuant to Section 5, Rule
10 of the Rules of Civil Procedure;32 Exh. "G" cannot be
excluded as it qualifies as an electronic evidence following the
Rules on Electronic Evidence which provides that print-outs are
also originals for purposes of the Best Evidence Rule; Exh. "G"
has remained complete and unaltered, apart from the signature
of Nubi, thus the same is reliable for the purpose for which it
was generated; the RTC judge correctly credited the testimony
of Aznar on the issuance of the computer print-out as Aznar
saw that it was signed by Nubi; said testimony constitutes the
"other evidence showing the integrity and reliability of the printout to the satisfaction of the judge" which is required under the
Rules on Electronic Evidence; the trial court was also correct in
finding that Citibank was grossly negligent in failing to credit
the additional deposit and make the necessary entries in its
systems to prevent Aznar from encountering any embarrassing
situation with the use of his Mastercard.33
Citibank, in its Comment, contends that: Aznar never had
personal knowledge that his credit card was blacklisted as he
only presumed such fact; the issue of dishonor on the ground
that the card was declared over the limit was also never tried
with the implied consent of both parties; Aznars self-serving
testimony is not sufficient to prove the integrity and reliability of
Exh. "G"; Aznar did not declare that it was Nubi who printed the
document and that said document was printed in his presence
as he merely said that the print-out was provided him; there is
also no annotation on Exh. "G" to establish that it was Nubi
who printed the same; assuming further that Exh. "G" is
admissible and Aznars credit card was dishonored, Citibank
still cannot be held liable for damages as it only shows that
Aznars credit card was dishonored for having been declared
over the limit; Aznars cause of action against Citibank hinged
on the alleged blacklisting of his card which purportedly caused
its dishonor; dishonor alone, however, is not sufficient to award
Aznar damages as he must prove that the dishonor was
caused by a grossly negligent act of Citibank; the award of
damages in favor of Aznar was based on Article 1170 34 of the
Civil Code, i.e., there was fraud, negligence or delay in the
performance of its obligation; there was no proof, however that
Citibank committed fraud or delay or that it contravened its
obligations towards Aznar; the terms and conditions of the
credit card cannot be considered as a contract of adhesion
since Aznar was entirely free to reject the card if he did not
want the conditions stipulated therein; a person whose stature

is such that he is expected to be more prudent with respect to

his transactions cannot later on be heard to complain for being
ignorant or having been forced into merely consenting to the
contract.35
In his Reply, Aznar contended that to a layman, the term
"blacklisting" is synonymous with the words "hot list" or
"declared overlimit"; and whether his card was blacklisted or
declared over the limit, the same was dishonored due to the
fault or gross negligence of Citibank.36
Aznar also filed a Memorandum raising as issues the following:
I. Whether or not the augmentation deposit in the
amount of P485,000.00 of the Petitioner constitutes
relative extinctive novation;
II. Whether or not the purchases made by Petitioner
were beyond his credit limit;
III. Whether or not the issues of dishonor by reason of
overlimit was tried with the consent of the parties;
IV. Whether or not the "On Line Authorization Report"
is an electronic document."
V. Whether or not the "On Line Authorization Report"
constitutes electronic evidence;
VI. Whether or not the agreement between the parties
is a contract of adhesion;
VII. Whether or not the Respondent is negligent in not
crediting the deposits of the Respondent.37
Aznar further averred in his Memorandum that Citibank
assured him that with the use of his Mastercard, he would
never be turned down by any merchant store, and that under
Section 43, Rule 130 of the Rules of Court, Exh. "G" is
admissible in evidence.38
Citibank also filed a Memorandum reiterating its earlier
arguments.39
Stripped to its essentials, the only question that needs to be
answered is: whether Aznar has established his claim against
Citibank.
The answer is no.
It is basic that in civil cases, the burden of proof rests on the
plaintiff to establish his case based on a preponderance of
evidence. The party that alleges a fact also has the burden of
proving it.40
In the complaint Aznar filed before the RTC, he claimed that
Citibank blacklisted his Mastercard which caused its dishonor
in several establishments in Malaysia, Singapore, and
Indonesia, particularly in Ingtan Agency in Indonesia where he
was humiliated when its staff insinuated that he could be a
swindler trying to use a blacklisted card.

85

As correctly found by the RTC in its May 29, 1998 Decision,

Aznar failed to prove with a preponderance of evidence that
Citibank blacklisted his Mastercard or placed the same on the
"hot list."41
Aznar in his testimony admitted that he had no personal
knowledge that his Mastercard was blacklisted by Citibank and
only presumed such fact from the dishonor of his card.
Q Now, paragraph 12 also states and I quote: "its entry in the
"hot" list was confirmed to be authentic".
Now, who confirmed that the blacklisting of your Preferred
Citibank Mastercard was authentic?

Aznar, who testified on the authenticity of Exh. "G," did not

actually see the document executed or written, neither was he
able to provide evidence on the genuineness of the signature
or handwriting of Nubi, who handed to him said computer printout. Indeed, all he was able to allege in his testimony are the
following:
Q I show to you a Computer Print Out captioned as On Line
Authorization Activity Report where it is shown that the
Preferred Master Card Number 5423392007867012 was
denied as per notation on the margin of this Computer Print
Out, is this the document evidencing the dishonor of your
Preferred Master Card?
xxxx

A. Okey. When I presented this Mastercard, my card rather, at

the Merchants store, I do not know, they called up somebody
for verification then later they told me that "your card is being
denied". So, I am not in a position to answer that. I do not know
whom they called up; where they verified. So, when it is
denied thats presumed to be blacklisted.

A Yes sir, after that Ingtan incident, I went straight to the

Service Agency there and on the left hand side you will be able
to see the name of the person in-charged [sic] there certifying
that really my card is being blacklisted and there is the
signature there of the agency.

Q. So the word that was used was denied?

ATTY. NAVARRO:

A. Denied.

The witness, your honor, is pointing to the signature over the

handwritten name of Victrina Elnado Nubi which I pray, your
honor, that the Computer Print Out be marked as our Exhibit
"G" and the remarks at the left hand bottom portion of Victorina
Elnado Nubi with her signature thereon be encircled and be
marked as our Exhibit "G-1".

Q. And after you were told that your card was denied you
presumed that it was blacklisted?
A. Definitely.

xxxx
Q. So your statement that your card was allegedly
blacklisted is only your presumption drawn from the fact,
from your allegations, that it was denied at the
merchandise store?
A. Yes, sir.42 (Emphasis supplied)
The dishonor of Aznars Mastercard is not sufficient to support
a conclusion that said credit card was blacklisted by Citibank,
especially in view of Aznars own admission that in other
merchant establishments in Kuala Lumpur and Singapore, his
Mastercard was accepted and honored.43
Aznar puts much weight on the ON-LINE AUTHORIZATION
FOREIGN ACCOUNT ACTIVITY REPORT, a computer printout handed to Aznar by Ingtan Agency, marked as Exh. "G", to
prove that his Mastercard was dishonored for being blacklisted.
On said print-out appears the words "DECL OVERLIMIT"
opposite Account No. 5423-3920-0786-7012.
As correctly pointed out by the RTC and the CA, however, such
exhibit cannot be considered admissible as its authenticity and
due execution were not sufficiently established by petitioner.
The prevailing rule at the time of the promulgation of the RTC
Decision is Section 20 of Rule 132 of the Rules of Court. It
provides that whenever any private document offered as
authentic is received in evidence, its due execution and
authenticity must be proved either by (a) anyone who saw the
document executed or written; or (b) by evidence of the
genuineness of the signature or handwriting of the maker.

Q Mr. Aznar, where did you secure this Computer Print Out
marked as Exhibit "G"?
A This is provided by that Agency, your honor. They were
the ones who provided me with this. So what the lady did,
she gave me the Statement and I requested her to sign to
show proof that my Preferred Master Card has been
rejected.44 (Emphasis supplied).
Even if examined under the Rules on Electronic Evidence,
which took effect on August 1, 2001, and which is being
invoked by Aznar in this case, the authentication of Exh. "G"
would still be found wanting.
Pertinent sections of Rule 5 read:
Section 1. Burden of proving authenticity. The person
seeking to introduce an electronic document in any legal
proceeding has the burden of proving its authenticity in the
manner provided in this Rule.
Section 2. Manner of authentication. Before any private
electronic document offered as authentic is received in
evidence, its authenticity must be proved by any of the
following means:
(a) by evidence that it had been digitally signed by the
person purported to have signed the same;

86

(b) by evidence that other appropriate security

procedures or devices as may be authorized by the
Supreme Court or by law for authentication of
electronic documents were applied to the document;
or

2. the entries were made at or near the time of the

transactions to which they refer;

(c) by other evidence showing its integrity and

reliability to the satisfaction of the judge.

4. the entries were made in his professional capacity

or in the performance of a duty, whether legal,
contractual, moral or religious; and

Aznar claims that his testimony complies with par. (c), i.e., it
constitutes the "other evidence showing integrity and reliability
of Exh. "G" to the satisfaction of the judge." The Court is not
convinced. Aznars testimony that the person from Ingtan
Agency merely handed him the computer print-out and that he
thereafter asked said person to sign the same cannot be
considered as sufficient to show said print-outs integrity and
reliability. As correctly pointed out by Judge Marcos in his May
29, 1998 Decision, Exh. "G" does not show on its face that it
was issued by Ingtan Agency as Aznar merely mentioned in
passing how he was able to secure the print-out from the
agency; Aznar also failed to show the specific business
address of the source of the computer print-out because while
the name of Ingtan Agency was mentioned by Aznar, its
business address was not reflected in the print-out.45
Indeed, Aznar failed to demonstrate how the information
reflected on the print-out was generated and how the said
information could be relied upon as true. In fact, Aznar to
repeat, testified as follows:
ATTY. NERI
Q Now, paragraph 12 also states and I quote: "its entry in the
"hot" list was confirmed to be authentic"
Now, who confirmed that the blacklisting of your Preferred
Citibank Mastercard was authentic?
A Okey. When I presented this Mastercard, my card rather, at
the Merchants store, I do not know, they called up somebody
for verification then later they told me that "your card is being
denied". So, I am not in a position to answer that. I do not
know whom they called up; where they verified. So, when
it is denied thats presumed to be blacklisted.46 (Emphasis
supplied)
Aznar next invokes Section 43 of Rule 130 of the Rules of
Court, which pertains to entries in the course of business, to
support Exh. "G". Said provision reads:
Sec. 43. Entries in the course of business. Entries made at,
or near the time of the transactions to which they refer, by a
person deceased or unable to testify, who was in a position to
know the facts therein stated, may be received as prima facie
evidence, if such person made the entries in his professional
capacity or in the performance of duty and in the ordinary or
regular course of business or duty.
Under this rule, however, the following conditions are required:
1. the person who made the entry must be dead, or
unable to testify;

3. the entrant was in a position to know the facts

stated in the entries;

5. the entries were made in the ordinary or regular

course of business or duty.47
As correctly pointed out by the RTC in its May 29, 1998
Decision, there appears on the computer print-out the name of
a certain "Victrina Elnado Nubi" and a signature purportedly
belonging to her, and at the left dorsal side were handwritten
the words "Sorry for the delay since the records had to be
retrieved. Regards. Darryl Mario." It is not clear therefore if it
was Nubi who encoded the information stated in the print-out
and was the one who printed the same. The handwritten
annotation signed by a certain Darryl Mario even suggests that
it was Mario who printed the same and only handed the printout to Nubi. The identity of the entrant, required by the
provision above mentioned, was therefore not established.
Neither did petitioner establish in what professional capacity
did Mario or Nubi make the entries, or whether the entries were
made in the performance of their duty in the ordinary or regular
course of business or duty.
And even if Exh. "G" is admitted as evidence, it only shows that
the use of the credit card of petitioner was denied because it
was already over the limit. There is no allegation in the
Complaint or evidence to show that there was gross
negligence on the part of Citibank in declaring that the credit
card has been used over the limit.
The Court is also perplexed that stated on Exh. "G" is the
amount of "6,289,195.10" opposite petitioner's account
number, which data, petitioner did not clarify.48 As plaintiff in
this case, it was incumbent on him to prove that he did not
actually incur the said amount which is above his credit limit.
As it is, the Court cannot see how Exh. "G" could help
petitioner's claim for damages.
The claim of petitioner that Citibank blacklisted his card
through fraud or gross negligence is likewise effectively
negated by the evidence of Citibank which was correctly
upheld by the RTC and the CA, to wit:
xxx Mr. Dennis Flores, the Head of the Credit Card Department
of defendant Bank, presented documents known as Warning
Cancellation Bulletin for July 10, 17, 24, and 31, 1994 (Exhibits
3, 3-1 to 3-38, 4, 4-1 to 4-38 5, 5-1 to 5-39 and 6, 61 to 6-39), for August 7, 1994 (Exhibit[s] 7, 7-1 to 7-37), for
August 8, 1994 (Exhibit[s] 8, 8-1 to 8-20) which show that
plaintiffs Citibank preferred mastercard was not placed in a hot
list or was not blacklisted.
The Warning Cancellation Bulletins (WCB) (Exhibits 3, 4, 5,
6, 7, 8 and their submarkings) which covered the period of
four (4) days in July 1994 (from July 10, 17, 24 and 31, 1994),
and two (2) days in August 1994, (August 7 and 8, 1994), when
plaintiff traveled in the aforementioned Asian countries showed
that said Citibank preferred mastercard had never been placed

87

in a hot list or the same was blacklisted, let alone the fact that
all the credit cards which had been cancelled by the defendant
bank were all contained, reported and listed in said Warning
Cancellation Bulletin which were issued and released on a
regular basis.

A After the account was augmented, Your Honor, because

there is no way we can approve a P250,000.00 purchase with
a P150,000.00 credit limit.51

These three hundred (300) Warning Cancellation Bulletins

pieces of documentary proofs, all in all, adduced by defendant
pointed to the fact that said plaintiffs credit car (sic) was not
among those found in said bulletins as having been cancelled
for the period for which the said bulletins had been issued.

ATTY. NERI:

Between said computer print out (Exhibit G) and the Warning

Cancellation Bulletins (Exhibits 3 to 8 and their submarkings)
the latter documents adduced by defendant are entitled to
greater weight than that said computer print out presented by
plaintiff that bears on the issue of whether the plaintiffs
preferred master card was actually placed in the hot list or
blacklisted for the following reasons:

xxx

For the record, your honor, the deposit of P450,000.00 was

made as per exhibit of the plaintiff on June 28. The
purchase of the tickets amount to P237,000.00 was
approved and debited on the account of Mr. Aznar on July
20, your honor. The deposit was made about a month
before the purchase of the tickets as per documentary
exhibits, your honor.
COURT:
So, Atty. Navarro, what do you say to that explanation?

The first reason is that the due execution and authentication of

these Warning Cancellation Bulletins (or WCB) have been duly
established and identified by defendants own witness, Dennis
Flores, one of the banks officers, who is the head of its credit
card department, and, therefore, competent to testify on the
said bulletins as having been issued by the defendant bank
showing that plaintiffs preferred master credit card was never
blacklisted or placed in the Banks hot list. But on the other
hand, plaintiffs computer print out (Exhibit G) was never
authenticated or its due execution had never been duly
established. Thus, between a set of duly authenticated
commercial documents, the Warning Cancellation Bulletins
(Exhibits 3 to 8 and their submarkings), presented by
defendants (sic) and an unauthenticated private document,
plaintiffs computer print out (Exhibit G), the former deserves
greater evidentiary weight supporting the findings of this Court
that plaintiffs preferred master card (Exhibit 1) had never
been blacklisted at all or placed in a so-called hot list by
defendant.49
Petitioner next argues that with the additional deposit he made
in his account which was accepted by Citibank, there was an
implied novation and Citibank was under the obligation to
increase his credit limit and make the necessary entries in its
computerized systems in order that petitioner may not
encounter any embarrassing situation with the use of his credit
card. Again, the Court finds that petitioner's argument on this
point has no leg to stand on.
Citibank never denied that it received petitioners additional
deposit.50 It even claimed that petitioner was able to purchase
plane tickets from Cebu to Kuala Lumpur in the amount of
P237,170.00, which amount was beyond his P150,000.00 limit,
because it was able to credit petitioners additional deposit to
his account. Flores of Citibank testified:
COURT:
Q When was this ticket purchased, after the account was
augmented
or before?

ATTY. NAVARRO [counsel of petitioner]:

That is correct, your honor, that is borne out by the
records, your honor. (Emphasis supplied)
COURT: (to witness)
Q So, I think Atty. Navarro is only after whether a credit line
could be extended?
A Yes, your honor.
Q Even if there is no augmenting?
A No, sir, it is not possible. So, the only way the P237,000.00
transaction could be approved was by way of advance
payment which actually happened in this case because
there is no way that the P237,000.00 can be approved with
the P150,000.00 credit limit.52 (Emphasis supplied)
The allegations of blacklisting not having been proved, is
Citibank liable for damages for the dishonor of Aznars
Mastercard?
Again, the answer is no.
Citibank, in its attempt to evade liability, invokes paragraphs 7
and 15 of the terms and conditions governing the issuance of
its Mastercard which read:
7. MERCHANT AFFILIATES. [Citibank is] not responsible if the
Card is not honored by any merchant affiliate for any reason.
Furthermore, [the cardholder] will not hold [Citibank]
responsible for any defective product or service purchased
through the Card.
xxxx
15. LIMITATION OF LIABILITY. In any action arising from this
agreement or any incident thereto which [the cardholder] or
any other party may file against [Citibank], [Citibanks] liability

88

shall not exceed One Thousand Pesos [P1,000.00] or the

actual damages proven, whichever is lesser.53
On this point, the Court agrees with Aznar that the terms and
conditions of Citibanks Mastercard constitute a contract of
adhesion. It is settled that contracts between cardholders and
the credit card companies are contracts of adhesion, so-called,
because their terms are prepared by only one party while the
other merely affixes his signature signifying his adhesion
thereto.54
In this case, paragraph 7 of the terms and conditions states
that "[Citibank is] not responsible if the Card is not honored by
any merchant affiliate for any reason x x x". While it is true that
Citibank may have no control of all the actions of its merchant
affiliates, and should not be held liable therefor, it is incorrect,
however, to give it blanket freedom from liability if its card is
dishonored by any merchant affiliate for any reason. Such
phrase renders the statement vague and as the said terms and
conditions constitute a contract of adhesion, any ambiguity in
its provisions must be construed against the party who
prepared the contract,55 in this case Citibank.
Citibank also invokes paragraph 15 of its terms and conditions
which limits its liability to P1,000.00 or the actual damage
proven, whichever is lesser.

While the Court commiserates with Aznar for whatever undue

embarrassment he suffered when his credit card was
dishonored by Ingtan Agency, especially when the agencys
personnel insinuated that he could be a swindler trying to use
blacklisted cards, the Court cannot grant his present petition as
he failed to show by preponderance of evidence that Citibank
breached any obligation that would make it answerable for said
suffering.
As the Court pronounced in BPI Express Card Corporation v.
Court of Appeals,62
We do not dispute the findings of the lower court that private
respondent suffered damages as a result of the cancellation of
his credit card. However, there is a material distinction between
damages and injury. Injury is the illegal invasion of a legal right;
damage is the loss, hurt, or harm which results from the injury;
and damages are the recompense or compensation awarded
for the damage suffered. Thus, there can be damage without
injury to those instances in which the loss or harm was not the
result of a violation of a legal duty. In such cases, the
consequences must be borne by the injured person alone, the
law affords no remedy for damages resulting from an act which
does not amount to a legal injury or wrong. These situations
are often called damnum absque injuria.63
WHEREFORE, the petition is denied for lack of merit.

Again, such stipulation cannot be considered as valid for being

unconscionable as it precludes payment of a larger amount
even though damage may be clearly proven. This Court is not
precluded from ruling out blind adherence to the terms of a
contract if the attendant facts and circumstances show that
they should be ignored for being obviously too one-sided.56
The invalidity of the terms and conditions being invoked by
Citibank, notwithstanding, the Court still cannot award
damages in favor of petitioner.
It is settled that in order that a plaintiff may maintain an action
for the injuries of which he complains, he must establish that
such injuries resulted from a breach of duty which the
defendant owed to the plaintiff a concurrence of injury to the
plaintiff and legal responsibility by the person causing it. The
underlying basis for the award of tort damages is the premise
that an individual was injured in contemplation of law; thus
there must first be a breach before damages may be awarded
and the breach of such duty should be the proximate cause of
the injury.57
It is not enough that one merely suffered sleepless nights,
mental anguish or serious anxiety as a result of the actuations
of the other party. It is also required that a culpable act or
omission was factually established, that proof that the wrongful
act or omission of the defendant is shown as the proximate
cause of the damage sustained by the claimant and that the
case is predicated on any of the instances expressed or
envisioned by Arts. 221958 and 222059 of the Civil Code.60
In culpa contractual or breach of contract, moral damages are
recoverable only if the defendant has acted fraudulently or in
bad faith, or is found guilty of gross negligence amounting to
bad faith, or in wanton disregard of his contractual obligations.
The breach must be wanton, reckless, malicious or in bad faith,
oppressive or abusive.61

SO ORDERED.

G.R. No. 169606

November 27, 2009

BERNARDO
B.
JOSE,
JR.,
Petitioner,
vs.
MICHAELMAR PHILS., INC. and MICHAELMAR SHIPPING
SERVICES, INC., Respondents.
DECISION
CARPIO, J.:
The Case
This is a petition1 for review on certiorari under Rule 45 of
the Rules of Court. The petition challenges the 11 May
2005 Decision2 and 5 August 2005 Resolution3 of the Court
of Appeals in CA-G.R. SP No. 83272. The Court of Appeals
set aside the 19 January4 and 22 March5 2004 Resolutions
of the National Labor Relations Commission (NLRC) in
NLRC NCR CA No. 036666-03 and reinstated the 18 June
2003 Decision6 of the Labor Arbiter in NLRC NCR OFW
Case No. (M)02-12-3137-00.
The Facts
Michaelmar Philippines, Inc. (MPI) is the Philippine agent of
Michaelmar Shipping Services, Inc. (MSSI). In an undertaking 7
dated 2 July 2002 and an employment contract 8 dated 4 July
2002, MSSI through MPI engaged the services of Bernardo B.
Jose, Jr. (Jose, Jr.) as oiler of M/T Limar. The employment
contract stated:

89

That the employee shall be employed on board under the

following terms and conditions:
1.1 Duration
Contract

of

Position
Basic
Salary

EIGHT (8) MONTHS

OILER

Monthly

US$ 450.00 & US$ 39.00 TANKER

ALLOWANCE

Jose, Jr. received a 96% total rating and was described as very
hardworking, trustworthy, and reliable.
On 29 December 2002, M/T Limar reached the next port after
the random drug test and Jose, Jr. was repatriated to the
Philippines. When Jose, Jr. arrived in the Philippines, he asked
MPI that a drug test be conducted on him. MPI ignored his
request. On his own, Jose, Jr. procured drug tests from Manila
Doctors Hospital,12 S.M. Lazo Medical Clinic, Inc.,13 and
Maritime Clinic for International Services, Inc. 14 He was found
negative for marijuana.

Hours of Work

48 HOURS/WEEK

Overtime

US$ 386.00 FIXED OT. 105 HRS/

MOS.

Vacation Leave with

Pay

US$ 190.00 & US$ 150 OWNERS

BONUS

The Labor Arbiters Ruling

Point of Hire

MANILA, PHILIPPINES9

In her 18 June 2003 Decision, the Labor Arbiter dismissed the

complaint for lack of merit. The Labor Arbiter held that:

In connection with the employment contract, Jose, Jr. signed a

declaration10 dated 10 June 2002 stating that:
In order to implement the Drug and Alcohol Policy on board the
managed vessels the following with [sic] apply:
All alcoholic beverages, banned substances and unprescribed
drugs including but not limited to the following: Marijuana
Cocaine Phencyclidine Amphetamines Heroin Opiates are
banned from Stelmar Tankers (Management) Ltd. managed
vessels.
Disciplinary action up to and including dismissal will be taken
against any employee found to be in possession of or impaired
by the use of any of the above mentioned substances.
A system of random testing for any of the above banned
substances will be used to enforce this policy. Any refusal to
submit to such tests shall be deemed as a serious breach of
the employment contract and shall result to the seamans
dismissal due to his own offense.
Therefore any seaman will be instantly dismissed if:
xxx
They are found to have positive trace of alcohol or any of the
banned substances in any random testing sample.
Jose, Jr. began performing his duties on board the M/T Limar
on 21 August 2002. On 8 October 2002, a random drug test
was conducted on all officers and crew members of M/T Limar
at the port of Curacao. Jose, Jr. was found positive for
marijuana. Jose, Jr. was informed about the result of his drug
test and was asked if he was taking any medication. Jose, Jr.
said that he was taking Centrum vitamins.
Jose, Jr. was allowed to continue performing his duties on
board the M/T Limar from 8 October to 29 November 2002. In
the Sea Going Staff Appraisal Report11 on Jose Jr.s work
performance for the period of 1 August to 28 November 2002,

Jose, Jr. filed with the NLRC a complaint against MPI and
MSSI for illegal dismissal with claim for his salaries for the
unexpired portion of the employment contract.

Based from the facts and evidence, this office inclined

[sic] to rule in favor of the respondents: we find that
complainants termination from employment was valid and
lawful. It is established that complainant, after an
unannounced drug test conducted by the respondent
principal on the officers and crew on board the vessel,
was found positive of marijuana, a prohibited drug. It is a
universally known fact the menace that drugs bring on the
user as well as to others who may have got on his way. It
is noted too that complainant worked on board a tanker
vessel which carries toxic materials such as fuels,
gasoline and other combustible materials which require
delicate and careful handling and being an oiler,
complainant is expected to be in a proper disposition.
Thus, we agree with respondents that immediate
repatriation of complainant is warranted for the safety of
the vessel as well as to complainants co-workers on
board. It is therefore a risk that should be avoided at all
cost. Moreover, under the POEA Standard Employment
Contract as cited by the respondents (supra), violation of
the drug and alcohol policy of the company carries with it
the penalty of dismissal to be effected by the master of the
vessel. It is also noted that complainant was made aware
of the results of the drug test as per Drug Test Certificate
dated October 29, 2002. He was not dismissed right there
and then but it was only on December 29, 2002 that he was
repatriated for cause.
As to the complainants contention that the ship doctors report
can not be relied upon in the absence of other evidence
supporting the doctors findings for the simple reason that the
ship doctor is under the control of the principal employer, the
same is untenable. On the contrary, the findings of the doctor
on board should be given credence as he would not make a
false clarification. Dr. A.R.A Heath could not be said to have
outrageously contrived the results of the complainants drug
test. We are therefore more inclined to believe the original
results of the unannounced drug test as it was officially
conducted on board the vessel rather than the subsequent
testing procured by complainant on his own initiative. The
result of the original drug test is evidence in itself and does not
require additional supporting evidence except if it was shown
that the drug test was conducted not in accordance with the
drug testing procedure which is not obtaining in this particular
case. [H]ence, the first test prevails.

90

We can not also say that respondents were motivated by ill will
against the complainant considering that he was appraised to
be a good worker. For this reason that respondents would not
terminate [sic] the services of complainant were it not for the
fact that he violated the drug and alcohol policy of the
company. [T]hus, we find that just cause exist [sic] to justify the
termination of complainant.15
Jose, Jr. appealed the Labor Arbiters 18 June 2003 Decision
to the NLRC. Jose, Jr. claimed that the Labor Arbiter committed
grave abuse of discretion in ruling that he was dismissed for
just cause.
The NLRCs Ruling
In its 19 January 2004 Resolution, the NLRC set aside the
Labor Arbiters 18 June 2003 Decision. The NLRC held that
Jose, Jr.s dismissal was illegal and ordered MPI and MSSI
to pay Jose, Jr. his salaries for the unexpired portion of
the employment contract. The NLRC held that:
Here, a copy of the purported drug test result for
Complainant indicates, among others, the following
typewritten words "Hoofd: Drs. R.R.L. Petronia Apotheker"
and
"THC-COOH
POS.";
the
handwritten
word
"Marihuana"; and the stamped words "Dr. A.R.A. Heath,
MD", "SHIPS DOCTOR" and "29 OKT. 2002." However,
said test result does not contain any signature, much less
the signature of any of the doctors whose names were
printed therein (Page 45, Records). Verily, the veracity of
this purported drug test result is questionable, hence, it
cannot be deemed as substantial proof that Complainant
violated his employers "no alcohol, no drug" policy. In
fact, in his November 14, 2002 message to Stelmar Tanker
Group, the Master of the vessel where Complainant
worked, suggested that another drug test for complainant
should be taken when the vessel arrived [sic] in Curacao
next call for final findings (Page 33, Records), which is an
indication that the Master, himself, was in doubt with the
purported drug test result. Indeed there is reason for the
Master of the vessel to doubt that Complainant was taking
in the prohibited drug "marihuana." The Sea Going Staff
Appraisal Report signed by Appraiser David A. Amaro, Jr.
and reviewed by the Master of the vessel himself on
complainants work performance as Wiper from August 1,
2002 to November 28, 2002 which included a two-month
period after the purported drug test, indicates that out of a
total score of 100% on Safety Consciousness (30%),
Ability (30%), Reliability (20%) and Behavior & Attitude
(20%), Complainant was assessed a score of 96% (Pages
30-31, Records). Truly, a worker who had been taking in
prohibited drug could not have given such an excellent job
performance. Significantly, under the category "Behavior
& Attitude (20%)," referring to his personal relationship
and his interactions with the rest of the ships staff and his
attitude towards his job and how the rest of the crew
regard him, Complainant was assessed the full score of
20% (Page 31, Records), which belies Respondents
insinuation that his alleged offense directly affected the
safety of the vessel, its officers and crew members.
Indeed, if Complainant had been a threat to the safety of
the vessel, officers and crew members, he would not be
been [sic] allowed to continue working almost three (3)
months after his alleged offense until his repatriation on
December 29, 2002. Clearly, Respondents failed to present

substantial proof that Complainants dismissal was with

just or authorized cause.
Moreover, Respondents failed to accord Complainant due
process prior to his dismissal. There is no showing that
Complainants employer furnished him with a written notice
apprising him of the particular act or omission for which his
dismissal was sought and a subsequent written notice
informing him of the decision to dismiss him, much less any
proof that Complainant was given an opportunity to answer and
rebut the charges against him prior to his dismissal. Worse,
Respondents invoke the provision in the employment contract
which allows summary dismissal for cases provided therein.
Consequently, Respondents argue that there was no need for
him to be notified of his dismissal. Such blatant violation of
basic labor law principles cannot be permitted by this Office.
Although a contract is law between the parties, the provisions
of positive law which regulate such contracts are deemed
included and shall limit and govern the relations between the
parties (Asia World Recruitment, Inc. vs. NLRC, G.R. No.
113363, August 24, 1999).
Relative thereto, it is worth noting Section 10 of Republic Act
No. 8042, which provides that "In cases of termination of
overseas employment without just, valid or authorized cause
as defined by law or contract, the worker shall be entitled to the
full reimbursement of his placement fee with interest of twelve
percent (12%) per annum, plus his salaries for the unexpired
portion of his employment contract or for three (3) months for
every year of the unexpired term, whichever is less."16
MPI and MSSI filed a motion for reconsideration. In its 22
March 2004 Resolution, the NLRC denied the motion for
lack of merit. MPI and MSSI filed with the Court of Appeals
a petition17 for certiorari under Rule 65 of the Rules of
Court. MPI and MSSI claimed that the NLRC gravely
abused its discretion when it (1) reversed the Labor
Arbiters factual finding that Jose, Jr. was legally
dismissed; (2) awarded Jose, Jr. his salaries for the
unexpired portion of the employment contract; (3)
awarded Jose, Jr. $386 overtime pay; and (4) ruled that
Jose, Jr. perfected his appeal within the reglementary
period.
The Court of Appeals Ruling
In its 11 May 2005 Decision, the Court of Appeals set aside the
19 January and 22 March 2004 Resolutions of the NLRC and
reinstated the 18 June 2003 Decision of the Labor Arbiter. The
Court of Appeals held that:
The POEA standard employment contract adverted to in the
labor arbiters decision to which all seamens contracts must
adhere explicitly provides that the failure of a seaman to obey
the policy warrants a penalty of dismissal which may be carried
out by the master even without a notice of dismissal if there is
a clear and existing danger to the safety of the vessel or the
crew. That the petitioners were implementing a no-alcohol, no
drug policy that was communicated to the respondent when he
embarked is not in question. He had signed a document
entitled Drug and Alcohol Declaration in which he
acknowledged that alcohol beverages and unprescribed drugs
such as marijuana were banned on the vessel and that any
employee found possessing or using these substances would
be subject to instant dismissal. He undertook to comply with
the policy and abide by all the relevant rules and guidelines,

91

including the system of random testing that would be employed

to enforce it.
We can hardly belabor the reasons and justification for this
policy. The safety of the vessel on the high seas is a matter of
supreme and unavoidable concern to all the owners, the
crew and the riding public. In the ultimate analysis, a vessel is
only as seaworthy as the men who sail it, so that it is
necessary to maintain at every moment the efficiency and
competence of the crew. Without an effective no alcohol, no
drug policy on board the ship, the vessels safety will be
seriously compromised. The policy is, therefore, a reasonable
and lawful order or regulation that, once made known to the
employee, must be observed by him, and the failure or refusal
of a seaman to comply with it should constitute serious
misconduct or willful disobedience that is a just cause for the
termination of employment under the Labor Code (Aparente vs.
National Labor Relations Commission, 331 SCRA 82). As the
labor arbiter has discerned, the seriousness and earnestness
in the enforcement of the ban is highlighted by the provision of
the POEA Standard Employment Contract allowing the ship
master to forego the notice of dismissal requirement in
effecting the repatriation of the seaman violating it.

another chance. These developments prove that the

respondent was afforded due process consistent with the
exigencies of his service at sea. For the NLRC to annul the
process because he was somehow not furnished with written
notice is already being pedantic. What is the importance to the
respondent of the difference between a written and verbal
notice when he was actually given the opportunity to be heard?
xxx
The working environment in a seagoing vessel is sui generis
which amply justifies the difference in treatment of seamen
found guilty of serious infractions at sea. The POEA Standard
Employment Contract allows the ship master to implement a
repatriation for just cause without a notice of dismissal if this is
necessary to avoid a clear and existing danger to the vessel.
The petitioners have explained that that [sic] it is usually at the
next port of call where the offending crewman is made to
disembark. In this case, a month had passed by after the date
of the medical report before they reached the next port. We
may not second-guess the judgment of the master in allowing
him to remain at his post in the meantime. It is still reasonable
to believe that the proper safeguards were taken and proper
limitations observed during the period when the respondent
remained on board.

xxxx
Under legal rules of evidence, not all unsigned documents or
papers fail the test of admissibility. There are kinds of evidence
known as exceptions to the hearsay rule which need not be
invariably signed by the author if it is clear that it issues from
him because of necessity and under circumstances that
safeguard the trustworthiness of the paper. A number of
evidence of this sort are called entries in the course of
business, which are transactions made by persons in the
regular course of their duty or business. We agree with the
labor arbiter that the drug test result constitutes entries made in
the ordinary or regular course of duty of a responsible officer of
the vessel. The tests administered to the crew were routine
measures of the vessel conducted to enforce its stated policy,
and it was a matter of course for medical reports to be issued
and released by the medical officer. The ships physician at
Curacao under whom the tests were conducted was admittedly
Dr. Heath. It was under his name and with his handwritten
comments that the report on the respondent came out, and
there is no basis to suspect that these results were issued
other than in the ordinary course of his duty. As the labor
arbiter points out, the drug test report is evidence in itself and
does not require additional supporting evidence except if it
appears that the drug test was conducted not in accordance
with drug testing procedures. Nothing of the sort, he says, has
even been suggested in this particular case.
The regularity of the procedure observed in the administration
and reporting of the tests is the very assurance of the reports
admissibility and credibility under the laws of the evidence. We
see no reason why it cannot be considered substantial
evidence, which, parenthetically, is the lowest rung in the
ladder of evidence. It is from the fact that a report or entry is a
part of the regular routine work of a business or profession that
it derives its value as legal evidence.
Then the respondent was notified of the results and allowed to
explain himself. He could not show any history of medication
that could account for the traces of drugs in his system.
Despite his lack of plausible excuses, the ship captain came
out in support of him and asked his superiors to give him

Finally, the fact that the respondent obtained negative results in

subsequent drug tests in the Philippines does not negate the
findings made of his condition on board the vessel. A drug test
can be negative if the user undergoes a sufficient period of
abstinence before taking the test. Unlike the tests made at his
instance, the drug test on the vessel was unannounced. The
credibility of the first test is, therefore, greater than the
subsequent ones.18
Jose, Jr. filed a motion19 for reconsideration. In its 5 August
2005 Resolution, the Court of Appeals denied the motion for
lack of merit. Hence, the present petition.
In a motion20 dated 1 August 2007, MPI and MSSI prayed that
they be substituted by OSG Ship Management Manila, Inc. as
respondent in the present case. In a Resolution21 dated 14
November 2007, the Court noted the motion.
The Issues
In his petition dated 13 September 2005, Jose, Jr. claims that
he was illegally dismissed from employment for two reasons:
(1) there is no just cause for his dismissal because the drug
test result is unsigned by the doctor, and (2) he was not
afforded due process. He stated that:
2. The purported drug test result conducted to petitioner
indicates, among others, the following: [sic] typwritten words
Hool: Drs. R.R.L.. [sic] Petronia Apotheker" [sic] and :THCCOOH POS." [sic]; the handwritten word "Marihuana"; and the
stamped words "Dr. A.R.A Heath, MD", "SHIPS DOCTOR" and
"29 OKT. 2002." However, said test result does not contain any
signature, much less the signature of any of the doctors whose
name [sic] were printed therein. This omission is fatal as it
goes to the veracity of the said purported drug test result.
Consequently, the purported drug test result cannot be deemed
as substantial proof that petitioner violated his employers "no
alcohol, no drug policy [sic].
xxxx

92

Even assuming arguendo that there was just cause,

respondents miserably failed to show that the presence of
the petitioner in the vessel constitutes a clear and existing
danger to the safety of the crew or the vessel. x x x
xxxx
It is a basic principle in Labor Law that in termination disputes,
the burden is on the employer to show that the dismissal was
for a just and valid cause. x x x
xxxx
x x x [T]he Honorable Labor Arbiter as well as the Honorable
Court of Appeals clearly erred in ruling that there was just
cause for the termination of petitioners employment.
Petitioners employment was terminated on the basis only of a
mere allegation that is unsubstantiated, unfounded and on the
basis of the drug test report that was not even signed by the
doctor who purportedly conducted such test.

even been suggested in this particular case.23 (Emphasis

supplied)
Jose, Jr. claims that the Court of Appeals erred when it ruled
that there was just cause for his dismissal. The Court is not
impressed. In a petition for review on certiorari under Rule 45
of the Rules of Court, a mere statement that the Court of
Appeals erred is insufficient. The petition must state the law or
jurisprudence and the particular ruling of the appellate court
violative of such law or jurisprudence. In Encarnacion v. Court
of Appeals,24 the Court held that:
Petitioner asserts that there is a question of law involved in this
appeal. We do not think so. The appeal involves an
appreciation of facts, i.e., whether the questioned decision is
supported by the evidence and the records of the case. In
other words, did the Court of Appeals commit a reversible error
in considering the trouble record of the subject telephone? Or
is this within the province of the appellate court to consider?
Absent grave abuse of discretion, this Court will not reverse the
appellate courts findings of fact.

5. Moreover, respondents failed to observe due process in

terminating petitioners employment. There is no evidence on
record that petitioner was furnished by his employer with a
written notice apprising him of the particular act or omission
which is the basis for his dismissal. Furthermore, there is also
no evidence on record that the second notice, informing
petitioner of the decision to dismiss, was served to the
petitioner. There is also no proof on record that petitioner was
given an opportunity to answer and rebut the charges against
him prior to the dismissal.22

In a petition for review under Rule 45, Rules of Court, invoking

the usual reason, i.e., that the Court of Appeals has decided a
question of substance not in accord with law or with applicable
decisions of the Supreme Court, a mere statement of the
ceremonial phrase is not sufficient to confer merit on the
petition. The petition must specify the law or prevailing
jurisprudence on the matter and the particular ruling of the
appellate court violative of such law or previous doctrine laid
down by the Supreme Court. (Emphasis supplied)

The Courts Ruling

In the present case, Jose, Jr. did not show that the Court of
Appeals ruling is violative of any law or jurisprudence. Section
43, Rule 130, of the Rules of Court states:

In its 11 May 2005 Decision, the Court of Appeals held that

there was just cause for Jose, Jr.s dismissal. The Court of
Appeals gave credence to the drug test result showing that
Jose, Jr. was positive for marijuana. The Court of Appeals
considered the drug test result as part of entries in the course
of business. The Court of Appeals held that:
Under legal rules of evidence, not all unsigned documents or
papers fail the test of admissibility. There are kinds of evidence
known as exceptions to the hearsay rule which need not be
invariably signed by the author if it is clear that it issues from
him because of necessity and under circumstances that
safeguard the trustworthiness of the paper. A number of
evidence of this sort are called entries in the course of
business, which are transactions made by persons in the
regular course of their duty or business. We agree with the
labor arbiter that the drug test result constitutes entries made in
the ordinary or regular course of duty of a responsible officer of
the vessel. The tests administered to the crew were routine
measures of the vessel conducted to enforce its stated policy,
and it was a matter of course for medical reports to be issued
and released by the medical officer. The ships physician at
Curacao under whom the tests were conducted was admittedly
Dr. Heath. It was under his name and with his handwritten
comments that the report on the respondent came out, and
there is no basis to suspect that these results were issued
other than in the ordinary course of his duty. As the labor
arbiter points out, the drug test report is evidence in itself and
does not require additional supporting evidence except if it
appears that the drug test was conducted not in accordance
with drug testing procedures. Nothing of the sort, he says, has

SEC. 43. Entries in the course of business. Entries made at,

or near the time of the transactions to which they refer, by a
person deceased, or unable to testify, who was in a position to
know the facts therein stated, may be received as prima facie
evidence, if such person made the entries in his professional
capacity or in the performance of duty and in the ordinary or
regular course of business or duty.1avvphi1
In Canque v. Court of Appeals,25 the Court laid down the
requisites for admission in evidence of entries in the course of
business: (1) the person who made the entry is dead, outside
the country, or unable to testify; (2) the entries were made at or
near the time of the transactions to which they refer; (3) the
person who made the entry was in a position to know the facts
stated in the entries; (4) the entries were made in a
professional capacity or in the performance of a duty; and (5)
the entries were made in the ordinary or regular course of
business or duty.
Here, all the requisites are present: (1) Dr. Heath is outside the
country; (2) the entries were made near the time the random
drug test was conducted; (3) Dr. Heath was in a position to
know the facts made in the entries; (4) Dr. Heath made the
entries in his professional capacity and in the performance of
his duty; and (5) the entries were made in the ordinary or
regular course of business or duty.
The fact that the drug test result is unsigned does not
necessarily lead to the conclusion that Jose, Jr. was not found

93

positive for marijuana. In KAR ASIA, Inc. v. Corona,26 the Court

admitted in evidence unsigned payrolls. In that case, the Court
held that:
Entries in the payroll, being entries in the course of business,
enjoy the presumption of regularity under Rule 130, Section 43
of the Rules of Court. It is therefore incumbent upon the
respondents to adduce clear and convincing evidence in
support of their claim. Unfortunately, respondents naked
assertions without proof in corroboration will not suffice to
overcome the disputable presumption.
In disputing the probative value of the payrolls for December
1994, the appellate court observed that the same contain only
the signatures of Ermina Daray and Celestino Barreto, the
paymaster and the president, respectively. It further opined that
the payrolls presented were only copies of the approved
payment, and not copies disclosing actual payment.
The December 1994 payrolls contain a computation of the
amounts payable to the employees for the given period,
including a breakdown of the allowances and deductions on
the amount due, but the signatures of the respondents are
conspicuously missing. Ideally, the signatures of the
respondents should appear in the payroll as evidence of actual
payment. However, the absence of such signatures does not
necessarily lead to the conclusion that the December 1994
COLA was not received. (Emphasis supplied)
In the present case, the following facts are established (1)
random drug tests are regularly conducted on all officers and
crew members of M/T Limar; (2) a random drug test was
conducted at the port of Curacao on 8 October 2002; (3) Dr.
Heath was the authorized physician of M/T Limar; (4) the drug
test result of Jose, Jr. showed that he was positive for
marijuana; (5) the drug test result was issued under Dr. Heaths
name and contained his handwritten comments. The Court of
Appeals found that:
The tests administered to the crew were routine measures of
the vessel conducted to enforce its stated policy, and it was a
matter of course for medical reports to be issued and released
by the medical officer. The ships physician at Curacao under
whom the tests were conducted was admittedly Dr. Heath. It
was under his name and with his handwritten comments that
the report on the respondent came out, and there is no basis to
suspect that these results were issued other than in the
ordinary course of his duty. As the labor arbiter points out, the
drug test report is evidence in itself and does not require
additional supporting evidence except if it appears that the
drug test was conducted not in accordance with drug testing
procedures. Nothing of the sort, he says, has even been
suggested in this particular case.27
Factual findings of the Court of Appeals are binding on the
Court. Absent grave abuse of discretion, the Court will not
disturb the Court of Appeals factual findings. 28 In
Encarnacion,29 the Court held that, "unless there is a clearly
grave or whimsical abuse on its part, findings of fact of the
appellate court will not be disturbed. The Supreme Court will
only exercise its power of review in known exceptions such as
gross misappreciation of evidence or a total void of evidence."
Jose, Jr. failed to show that the Court of Appeals gravely
abused its discretion.

Article 282(a) of the Labor Code states that the employer may
terminate an employment for serious misconduct. Drug use in
the premises of the employer constitutes serious misconduct.
In Bughaw, Jr. v. Treasure Island Industrial Corporation,30 the
Court held that:
The charge of drug use inside the companys premises and
during working hours against petitioner constitutes serious
misconduct, which is one of the just causes for termination.
Misconduct is improper or wrong conduct. It is the
transgression of some established and definite rule of action, a
forbidden act, a dereliction of duty, willful in character, and
implies wrongful intent and not merely an error in judgment.
The misconduct to be serious within the meaning of the Act
must be of such a grave and aggravated character and not
merely trivial or unimportant. Such misconduct, however
serious, must nevertheless, in connection with the work of the
employee, constitute just cause for his separation. This Court
took judicial notice of scientific findings that drug abuse can
damage the mental faculties of the user. It is beyond question
therefore that any employee under the influence of drugs
cannot possibly continue doing his duties without posing a
serious threat to the lives and property of his co-workers and
even his employer. (Emphasis supplied)
Jose, Jr. claims that he was not afforded due process. The
Court agrees. There are two requisites for a valid dismissal: (1)
there must be just cause, and (2) the employee must be
afforded due process.31 To meet the requirements of due
process, the employer must furnish the employee with two
written notices a notice apprising the employee of the
particular act or omission for which the dismissal is sought and
another notice informing the employee of the employers
decision to dismiss. In Talidano v. Falcon Maritime & Allied
Services, Inc.,32 the Court held that:
[R]espondent failed to comply with the procedural due process
required for terminating the employment of the employee. Such
requirement is not a mere formality that may be dispensed with
at will. Its disregard is a matter of serious concern since it
constitutes a safeguard of the highest order in response to
mans innate sense of justice. The Labor Code does not, of
course, require a formal or trial type proceeding before an
erring employee may be dismissed. This is especially true in
the case of a vessel on the ocean or in a foreign port. The
minimum requirement of due process termination proceedings,
which must be complied with even with respect to seamen on
board a vessel, consists of notice to the employees intended to
be dismissed and the grant to them of an opportunity to
present their own side of the alleged offense or misconduct,
which led to the managements decision to terminate. To meet
the requirements of due process, the employer must furnish
the worker sought to be dismissed with two written notices
before termination of employment can be legally effected, i.e.,
(1) a notice which apprises the employee of the particular acts
or omissions for which his dismissal is sought; and (2) the
subsequent notice after due hearing which informs the
employee of the employers decision to dismiss him.
(Emphasis supplied)
In the present case, Jose, Jr. was not given any written notice
about his dismissal. However, the propriety of Jose, Jr.s
dismissal is not affected by the lack of written notices. When
the dismissal is for just cause, the lack of due process does not
render the dismissal ineffectual but merely gives rise to the
payment of P30,000 in nominal damages.33

94

WHEREFORE, the petition is DENIED. The 11 May 2005

Decision and 5 August 2005 Resolution of the Court of Appeals
in CA-G.R. SP No. 83272 are AFFIRMED with the
MODIFICATION that OSG Ship Management Manila, Inc. is
ordered to pay Bernardo B. Jose, Jr. P30,000 in nominal
damages.
SO ORDERED.

G.R. No. 150464

June 27, 2006

SECURITY BANK AND TRUST COMPANY, Petitioner,

vs.
ERIC GAN, Respondent.
DECISION
CORONA, J.:
This petition for review on certiorari1 seeks the reversal of the
decision2 of the Court of Appeals (CA) dated October 18, 2001
in CA-G.R. CV No. 45701, the dispositive portion of which
read:
WHEREFORE, finding no reversible error therefrom, the
Decision now on appeal is hereby AFFIRMED in toto.
SO ORDERED.3
The factual antecedents follow.

95

Petitioner Security Bank and Trust Company is a banking

institution duly organized and existing under the laws of the
Philippines. In 1981, respondent Eric Gan opened a current
account with petitioner at its Soler Branch in Santa Cruz,
Manila. Petitioner alleged that it had an agreement with
respondent wherein the latter would deposit an initial amount in
his current account and he could draw checks on said account
provided there were sufficient funds to cover them.
Furthermore, under a special arrangement with petitioners
branch manager then, Mr. Qui,4 respondent was allowed to
transfer funds from his account to another persons account
also within the same branch.5 Respondent availed of such
arrangement several times by depositing checks in his account
and even before they cleared, he withdrew the proceeds
thereof and transferred them to the other account. These
transactions were covered by what were known as "debit
memos" since respondent had no sufficient funds to cover the
amounts he transferred.6
Later on, respondent purportedly incurred an overdraft or
negative balance in his account. As of December 14, 1982, the
overdraft balance came up to P153,757.78. According to
petitioner, respondent refused to heed petitioners repeated
demands for payment. For the period December 14, 1982 to
September 15, 1990, the total obligation of respondent reached
P297,060.01, inclusive of interest.7
Thus, in 1991, petitioner filed a complaint for sum of money
against respondent to recover the P297,060.01 with 12%
interest per annum from September 16, 1990 until fully paid,
attorneys fees, litigation expenses and costs of suit. The case
was docketed as Civil Case No. 91-55605 with the Regional
Trial Court of Manila, Branch 13.8
Respondent denied liability to petitioner for the said amount.
He contended that the alleged overdraft resulted from
transactions done without his knowledge and consent.
In a decision dated March 31, 1993, the trial court dismissed
the complaint. It held that petitioner was not able to prove that
respondent owed it the amount claimed considering that the
ledger cards it presented were merely hearsay evidence. On
petitioners appeal, the CA affirmed the trial courts decision.
Hence, this petition anchored on the following grounds:
I. The honorable Court of Appeals erred in not ruling
that petitioner has sufficiently proved its cause of
action against respondent; and that the ledger cards
and the testimony of Mr. Patricio Mercado constituted
the best evidence of the transactions made by the
respondent relative to his account.
II. The honorable Court of Appeals erred in not
applying the principle of estoppel against respondent
who has benefited from the special arrangement
accorded to him by petitioner which resulted in an
overdraft / negative balance.
III. The honorable Court of Appeals erred in affirming
the decision of the trial court.9

It is well established that under Rule 45 of the Rules of Court,

only questions of law, not of fact, may be raised before the
Supreme Court. It must be stressed that this Court is not a trier
of facts and it is not its function to re-examine and weigh anew
the respective evidence of the parties. Factual findings of the
trial court, especially those affirmed by the CA, are conclusive
on this Court when supported by the evidence on record.10
Here, both the trial court and the CA found that petitioner failed
to substantiate its claim that respondent knowingly incurred an
overdraft against his account. We see no reason to disturb this
finding.
To prove its claim, petitioner presented Patricio Mercado who
was the bookkeeper who handled the account of respondent
and recorded his transactions in a ledger. Based on this ledger,
respondent allegedly had a negative balance of P153,757.78.
This resulted from transfers of funds from respondents current
account to another persons account. These transfers were
made under the authority of Qui.11 Respondent categorically
denied that he ever authorized these "funds transfers."12
The entries in the ledger, as testified to by Mercado, were not
competent evidence to prove that respondent consented to the
transfers of funds. These entries merely showed that the
transfers were indeed made and that Qui approved them.
Petitioners claim that respondent availed of a special
arrangement to transfer funds from his account to another
persons account was a bare allegation that was never
substantiated. Admittedly, Mercado had no personal knowledge
of this arrangement.13 In fact, when asked about the details of
the alleged consent given by respondent to the transfers, he
stated that he could not remember because respondent talked
to Qui and not to him.14 Petitioner could have presented Qui
whom they alleged allowed the special arrangement with
respondent. But it did not.
Neither can we accept petitioners argument that the entries
made by Mercado in the ledger were competent evidence to
prove how and when the negative balance was incurred.
Petitioner invokes Section 43 of Rule 130:
Entries in the course of business. Entries made at, or near
the time of the transactions to which they refer, by a person
deceased, or unable to testify, who was in a position to know
the facts therein stated, may be received as prima facie
evidence, if such person made the entries in his professional
capacity or in the performance of duty and in the ordinary or
regular course of business or duty.
Under this exception to the hearsay rule, the admission in
evidence of entries in corporate books required the satisfaction
of the following conditions:
1. the person who made the entry must be dead, or
unable to testify;
2. the entries were made at or near the time of the
transactions to which they refer;
3. the entrant was in a position to know the facts
stated in the entries;

We deny the petition for lack of merit.

96

4. the entries were made in his professional capacity

or in the performance of a duty, whether legal,
contractual, moral or religious; and
5. the entries were made in the ordinary or regular
course of business or duty.15
The ledger entries did not meet the first and third requisites.
Mercado, petitioners bookkeeper who prepared the entries,
was presented to testify on the transactions pertaining to the
account of respondent. It was in the course of his testimony
that the ledger entries were presented. There was, therefore,
neither justification nor necessity for the presentation of the
entries as the person who made them was available to testify
in court.16

duty to communicate being itself a badge of trustworthiness of

the entries, but not when they purport to record what were
independent agreements arrived at by some bank officials and
a client. In this case, the entries become mere casual or
voluntary reports of the official concerned. To permit the
ledgers, prepared by the bank at its own instance, to substitute
the contract as proof of the agreements with third parties, is to
set a dangerous precedent. Business entries are allowed as an
exception to the hearsay rule only under certain conditions
specified in Section 43, which must be scrupulously observed
to prevent them from being used as a source of undue
advantage for the party preparing them.17 (citations omitted)
Thus, petitioner did not prove that respondent had incurred a
negative balance in his account. Consequently, there was
nothing to show that respondent was indebted to it in the
amount claimed.lavvphil.net

Moreover, Mercado had no personal knowledge of the facts

constituting the entries, particularly those entries which
resulted in the negative balance. He had no knowledge of the
truth or falsity of these entries. We agree entirely with the
following discussion of the trial court which was affirmed by the
CA:

Petitioners next argument is that respondent was estopped

from denying the claim of petitioner since he benefited from the
special arrangement accorded to him resulting in the negative
balance. This must likewise fail. The so-called special
arrangement was never established. In addition, there was no
evidence that respondent benefited from it. As held by the CA:

The plaintiff submits that the ledger cards constituted the best
evidence of the transactions made by the defendant with the
bank relative to his account, pursuant to Section 43 of Rule
130 of the Revised Rules on Evidence. There is no question
that the entries in the ledgers were made by one whose duty it
was to record transactions in the ordinary or regular course of
the business. But for the entries to be prima facie evidence of
the facts recorded, the Rule interpose[s] a very important
condition, one which we think is truly indispensable to the
probative worth of the entries as an exception to the hearsay
rule, and that is that the entrant must be "in a position to know
the facts therein stated." Undeniably, Mr. Mercado was in a
position to know the facts of the check deposits and
withdrawals. But the transfers of funds through the debit
memos in question?

The trial court satisfactorily explained the reason for not

applying the principle of estoppel against defendant-appellee.
As held by the trial court:

Let us be clear, at the outset, what the transactions covered by

the debit memos are. They are, at bottom, credit
accommodations said to have been granted by the banks
branch manager Mr. [Q]ui to the defendant, and they are,
therefore loans, to prove which competent testimonial or
documentary evidence must be presented. In the fac[e] of the
denial by the defendant of the existence of any such
agreement, and the absence of any document reflecting it, the
testimony of a party to the transaction, i.e., Mr. [Q]ui, or of any
witness to the same, would be necessary. The plaintiff failed to
explain why it did not or could not present any party or witness
to the transactions, but even if it had a reason why it could not,
it is clear that the existence of the agreements cannot be
established through the testimony of Mr. Mercado, for he was
[not in] a position to [know] those facts. As a subordinate, he
could not have done more than record what was reported to
him by his superior the branch manager, and unless he was
allowed to be privy to the latters dealings with the defendant,
the information that he received and entered in the ledgers was
incapable of being confirmed by him.

"There is no scope here for the application of estoppel against

the defendant-appellee, since it was not established that he
had ever received copies of the ledgers, and therefore given
the opportunity to review the correctness of the entries. As we
see it, the case of the [plaintiff suffers from its failure to
document its] transactions with its clients, and it is hardly right
to close our eyes to that infirmity at the expense of the
defendant-appellee."
The temporary overdraft allegedly accorded by plaintiffappellant to defendant-appellee has not benefited the
defendant-appellee in any manner. The 3 debit memos
amounting to P150,000.00 appearing on defendant-appellees
ledger consisted of fund transfers from and not to defendantappellees account. The transfers resulted [in] the benefit of
other accounts, not that of defendant-appellee.18
In view of the foregoing, the CA did not err in affirming the
decision of the trial court.
WHEREFORE, the petition is hereby DENIED. The assailed
decision of the Court of Appeals dated October 18, 2001 in CAG.R. CV No. 45701 is AFFIRMED in toto.
Costs against petitioner.

There is good reason why evidence of this nature is incorrigibly

hearsay. Entries in business records which spring from the duty
of other employees to communicate facts occurring in the
ordinary course of business are prima facie admissible, the

97

SO ORDERED.
G. R. No. 157064 August 7, 2006
BARCELON, ROXAS SECURITIES, INC. (now known as
UBP
Securities,
Inc.)
Petitioner,
vs.
COMMISSIONER OF INTERNAL REVENUE, Respondent.
DECISION

98

CHICO-NAZARIO, J.:
This is a Petition for Review on Certiorari, under Rule 45 of the
Rules of Court, seeking to set aside the Decision of the Court
of Appeals in CA-G.R. SP No. 60209 dated 11 July 2002, 1
ordering the petitioner to pay the Government the amount of
P826,698.31 as deficiency income tax for the year 1987 plus
25% surcharge and 20% interest per annum. The Court of
Appeals, in its assailed Decision, reversed the Decision of the
Court of Tax Appeals (CTA) dated 17 May 2000 2 in C.T.A.
Case No. 5662.
Petitioner Barcelon, Roxas Securities Inc. (now known as UBP
Securities, Inc.) is a corporation engaged in the trading of
securities. On 14 April 1988, petitioner filed its Annual Income
Tax Return for taxable year 1987. After an audit investigation
conducted by the Bureau of Internal Revenue (BIR),
respondent Commissioner of Internal Revenue (CIR) issued an
assessment for deficiency income tax in the amount of
P826,698.31 arising from the disallowance of the item on
salaries, bonuses and allowances in the amount of
P1,219,093,93 as part of the deductible business expense
since petitioner failed to subject the salaries, bonuses and
allowances to withholding taxes. This assessment was covered
by Formal Assessment Notice No. FAN-1-87-91-000649 dated
1 February 1991, which, respondent alleges, was sent to
petitioner through registered mail on 6 February 1991.
However, petitioner denies receiving the formal assessment
notice. 3
On 17 March 1992, petitioner was served with a Warrant of
Distraint and/or Levy to enforce collection of the deficiency
income tax for the year 1987. Petitioner filed a formal protest,
dated 25 March 1992, against the Warrant of Distraint and/or
Levy, requesting for its cancellation. On 3 July 1998, petitioner
received a letter dated 30 April 1998 from the respondent
denying the protest with finality. 4
On 31 July 1998, petitioner filed a petition for review with the
CTA. After due notice and hearing, the CTA rendered a
decision in favor of petitioner on 17 May 2000. The CTA ruled
on the primary issue of prescription and found it unnecessary
to decide the issues on the validity and propriety of the
assessment. It maintained that while a mailed letter is deemed
received by the addressee in the course of mail, this is merely
a disputable presumption. It reasoned that the direct denial of
the petitioner shifts the burden of proof to the respondent that
the mailed letter was actually received by the petitioner. The
CTA found the BIR records submitted by the respondent
immaterial, self-serving, and therefore insufficient to prove that
the assessment notice was mailed and duly received by the
petitioner. 5 The dispositive portion of this decision reads:
WHEREFORE, in view of the foregoing, the 1988 deficiency
tax assessment against petitioner is hereby CANCELLED.
Respondent is hereby ORDERED TO DESIST from collecting
said deficiency tax. No pronouncement as to costs. 6
On 6 June 2000, respondent moved for reconsideration of the
aforesaid decision but was denied by the CTA in a Resolution
dated 25 July 2000. Thereafter, respondent appealed to the
Court of Appeals on 31 August 2001. In reversing the CTA
decision, the Court of Appeals found the evidence presented
by the respondent to be sufficient proof that the tax
assessment notice was mailed to the petitioner, therefore the

legal presumption that it was received should apply. 7 Thus, the

Court of Appeals ruled that:
WHEREFORE, the petition is hereby GRANTED. The decision
dated May 17, 2000 as well as the Resolution dated July 25,
2000 are hereby REVERSED and SET ASIDE, and a new on
entered ordering the respondent to pay the amount of
P826,698.31 as deficiency income tax for the year 1987 plus
25% surcharge and 20% interest per annum from February 6,
1991 until fully paid pursuant to Sections 248 and 249 of the
Tax Code. 8
Petitioner moved for reconsideration of the said decision but
the same was denied by the Court of Appeals in its assailed
Resolution dated 30 January 2003. 9
Hence, this Petition for Review on Certiorari raising the
following issues:
I
WHETHER OR NOT LEGAL BASES EXIST FOR THE COURT
OF APPEALS FINDING THAT THE COURT OF TAX
APPEALS COMMITTED "GROSS ERROR IN THE
APPRECIATION OF FACTS."
II
WHETHER OR NOT THE COURT OF APPEALS WAS
CORRECT IN REVERSING THE SUBJECT DECISION OF
THE COURT OF TAX APPEALS.
III
WHETHER OR NOT THE RIGHT OF THE BUREAU OF
INTERNAL REVENUE TO ASSESS PETITIONER FOR
ALLEGED DEFICIENCY INCOME TAX FOR 1987 HAS
PRESCRIBED.
IV
WHETHER OR NOT THE RIGHT OF THE BUREAU OF
INTERNAL REVENUE TO COLLECT THE SUBJECT
ALLEGED DEFICIENCY INCOME TAX FOR 1987 HAS
PRESCRIBED.
V
WHETHER OR NOT PETITIONER IS LIABLE FOR THE
ALLEGED DEFICIENCY INCOME TAX ASSESSMENT FOR
1987.
VI
WHETHER OR NOT THE SUBJECT ASSESSMENT IS
VIOLATIVE OF THE RIGHT OF PETITIONER TO DUE
PROCESS. 10
This Court finds the instant Petition meritorious.
The core issue in this case is whether or not respondents right
to assess petitioners alleged deficiency income tax is barred

99

by prescription, the resolution of which depends on reviewing

the findings of fact of the Court of Appeals and the CTA.
While the general rule is that factual findings of the Court of
Appeals are binding on this Court, there are, however,
recognized exceptions 11 thereto, such as when the findings are
contrary to those of the trial court or, in this case, the CTA. 12
In its Decision, the CTA resolved the issues raised by the
parties thus:
Jurisprudence is replete with cases holding that if the taxpayer
denies ever having received an assessment from the BIR, it is
incumbent upon the latter to prove by competent evidence that
such notice was indeed received by the addressee. The onus
probandi was shifted to respondent to prove by contrary
evidence that the Petitioner received the assessment in the
due course of mail. The Supreme Court has consistently held
that while a mailed letter is deemed received by the addressee
in the course of mail, this is merely a disputable presumption
subject to controversion and a direct denial thereof shifts the
burden to the party favored by the presumption to prove that
the mailed letter was indeed received by the addressee
(Republic vs. Court of Appeals, 149 SCRA 351). Thus as held
by the Supreme Court in Gonzalo P. Nava vs. Commissioner of
Internal Revenue, 13 SCRA 104, January 30, 1965:
"The facts to be proved to raise this presumption are (a) that
the letter was properly addressed with postage prepaid, and (b)
that it was mailed. Once these facts are proved, the
presumption is that the letter was received by the addressee as
soon as it could have been transmitted to him in the ordinary
course of the mail. But if one of the said facts fails to appear,
the presumption does not lie. (VI, Moran, Comments on the
Rules of Court, 1963 ed, 56-57 citing Enriquez vs. Sunlife
Assurance of Canada, 41 Phil 269)."
In the instant case, Respondent utterly failed to discharge this
duty. No substantial evidence was ever presented to prove that
the assessment notice No. FAN-1-87-91-000649 or other
supposed notices subsequent thereto were in fact issued or
sent to the taxpayer. As a matter of fact, it only submitted the
BIR record book which allegedly contains the list of taxpayers
names, the reference number, the year, the nature of tax, the
city/municipality and the amount (see Exh. 5-a for the
Respondent). Purportedly, Respondent intended to show to
this Court that all assessments made are entered into a record
book in chronological order outlining the details of the
assessment and the taxpayer liable thereon. However, as can
be gleaned from the face of the exhibit, all entries thereon
appears to be immaterial and impertinent in proving that the
assessment notice was mailed and duly received by Petitioner.
Nothing indicates therein all essential facts that could sustain
the burden of proof being shifted to the Respondent. What is
essential to prove the fact of mailing is the registry receipt
issued by the Bureau of Posts or the Registry return card which
would have been signed by the Petitioner or its authorized
representative. And if said documents cannot be located,
Respondent at the very least, should have submitted to the
Court a certification issued by the Bureau of Posts and any
other pertinent document which is executed with the
intervention of the Bureau of Posts. This Court does not put
much credence to the self serving documentations made by
the BIR personnel especially if they are unsupported by
substantial evidence establishing the fact of mailing. Thus:

"While we have held that an assessment is made when sent

within the prescribed period, even if received by the taxpayer
after its expiration (Coll. of Int. Rev. vs. Bautista, L-12250 and
L-12259, May 27, 1959), this ruling makes it the more
imperative that the release, mailing or sending of the notice be
clearly and satisfactorily proved. Mere notations made without
the taxpayers intervention, notice or control, without adequate
supporting evidence cannot suffice; otherwise, the taxpayer
would be at the mercy of the revenue offices, without adequate
protection or defense." (Nava vs. CIR, 13 SCRA 104, January
30, 1965).
xxxx
The failure of the respondent to prove receipt of the
assessment by the Petitioner leads to the conclusion that no
assessment was issued. Consequently, the governments right
to issue an assessment for the said period has already
prescribed. (Industrial Textile Manufacturing Co. of the Phils.,
Inc. vs. CIR CTA Case 4885, August 22, 1996). 13
Jurisprudence has consistently shown that this Court accords
the findings of fact by the CTA with the highest respect. In SeaLand Service Inc. v. Court of Appeals 14 this Court recognizes
that the Court of Tax Appeals, which by the very nature of its
function is dedicated exclusively to the consideration of tax
problems, has necessarily developed an expertise on the
subject, and its conclusions will not be overturned unless there
has been an abuse or improvident exercise of authority. Such
findings can only be disturbed on appeal if they are not
supported by substantial evidence or there is a showing of
gross error or abuse on the part of the Tax Court. 15 In the
absence of any clear and convincing proof to the contrary, this
Court must presume that the CTA rendered a decision which is
valid in every respect.
Under Section 203 16 of the National Internal Revenue Code
(NIRC), respondent had three (3) years from the last day for
the filing of the return to send an assessment notice to
petitioner. In the case of Collector of Internal Revenue v.
Bautista, 17 this Court held that an assessment is made within
the prescriptive period if notice to this effect is released, mailed
or sent by the CIR to the taxpayer within said period. Receipt
thereof by the taxpayer within the prescriptive period is not
necessary. At this point, it should be clarified that the rule does
not dispense with the requirement that the taxpayer should
actually receive, even beyond the prescriptive period, the
assessment notice which was timely released, mailed and
sent.
In the present case, records show that petitioner filed its
Annual Income Tax Return for taxable year 1987 on 14 April
1988. 18 The last day for filing by petitioner of its return was on
15 April 1988, 19 thus, giving respondent until 15 April 1991
within which to send an assessment notice. While respondent
avers that it sent the assessment notice dated 1 February 1991
on 6 February 1991, within the three (3)-year period prescribed
by law, petitioner denies having received an assessment notice
from respondent. Petitioner alleges that it came to know of the
deficiency tax assessment only on 17 March 1992 when it was
served with the Warrant of Distraint and Levy. 20
In Protectors Services, Inc. v. Court of Appeals, 21 this Court
ruled that when a mail matter is sent by registered mail, there
exists a presumption, set forth under Section 3(v), Rule 131 of
the Rules of Court, 22 that it was received in the regular course

100

of mail. The facts to be proved in order to raise this

presumption are: (a) that the letter was properly addressed
with postage prepaid; and (b) that it was mailed. While a
mailed letter is deemed received by the addressee in the
ordinary course of mail, this is still merely a disputable
presumption subject to controversion, and a direct denial of the
receipt thereof shifts the burden upon the party favored by the
presumption to prove that the mailed letter was indeed
received by the addressee. 23
In the present case, petitioner denies receiving the assessment
notice, and the respondent was unable to present substantial
evidence that such notice was, indeed, mailed or sent by the
respondent before the BIRs right to assess had prescribed and
that said notice was received by the petitioner. The respondent
presented the BIR record book where the name of the
taxpayer, the kind of tax assessed, the registry receipt number
and the date of mailing were noted. The BIR records custodian,
Ingrid Versola, also testified that she made the entries therein.
Respondent offered the entry in the BIR record book and the
testimony of its record custodian as entries in official records in
accordance with Section 44, Rule 130 of the Rules of Court, 24
which states that:
Section 44. Entries in official records. - Entries in official
records made in the performance of his duty by a public officer
of the Philippines, or by a person in the performance of a duty
specially enjoined by law, are prima facie evidence of the facts
therein stated.
The foregoing rule on evidence, however, must be read in
accordance with this Courts pronouncement in Africa v. Caltex
(Phil.), Inc., 25 where it has been held that an entrant must have
personal knowledge of the facts stated by him or such facts
were acquired by him from reports made by persons under a
legal duty to submit the same.

In the case of Nava v. Commissioner of Internal Revenue, 27

this Court stressed on the importance of proving the release,
mailing or sending of the notice.
While we have held that an assessment is made when sent
within the prescribed period, even if received by the taxpayer
after its expiration (Coll. of Int. Rev. vs. Bautista, L-12250 and
L-12259, May 27, 1959), this ruling makes it the more
imperative that the release, mailing, or sending of the notice be
clearly and satisfactorily proved. Mere notations made without
the taxpayers intervention, notice, or control, without adequate
supporting evidence, cannot suffice; otherwise, the taxpayer
would be at the mercy of the revenue offices, without adequate
protection or defense.
In the present case, the evidence offered by the respondent
fails to convince this Court that Formal Assessment Notice No.
FAN-1-87-91-000649 was released, mailed, or sent before 15
April 1991, or before the lapse of the period of limitation upon
assessment and collection prescribed by Section 203 of the
NIRC. Such evidence, therefore, is insufficient to give rise to
the presumption that the assessment notice was received in
the regular course of mail. Consequently, the right of the
government to assess and collect the alleged deficiency tax is
barred by prescription.
IN VIEW OF THE FOREGOING, the instant Petition is
GRANTED. The assailed Decision of the Court of Appeals in
CA-G.R. SP No. 60209 dated 11 July 2002, is hereby
REVERSED and SET ASIDE, and the Decision of the Court of
Tax Appeals in C.T.A. Case No. 5662, dated 17 May 2000,
cancelling the 1988 Deficiency Tax Assessment against
Barcelon, Roxas Securitites, Inc. (now known as UPB
Securities, Inc.) for being barred by prescription, is hereby
REINSTATED. No costs.
SO ORDERED.

There are three requisites for admissibility under the rule just
mentioned: (a) that the entry was made by a public officer, or
by another person specially enjoined by law to do so; (b) that it
was made by the public officer in the performance of his duties,
or by such other person in the performance of a duty specially
enjoined by law; and (c) that the public officer or other person
had sufficient knowledge of the facts by him stated, which must
have been acquired by him personally or through official
information x x x.
In this case, the entries made by Ingrid Versola were not based
on her personal knowledge as she did not attest to the fact that
she personally prepared and mailed the assessment notice.
Nor was it stated in the transcript of stenographic notes 26 how
and from whom she obtained the pertinent information.
Moreover, she did not attest to the fact that she acquired the
reports from persons under a legal duty to submit the same.
Hence, Rule 130, Section 44 finds no application in the present
case. Thus, the evidence offered by respondent does not
qualify as an exception to the rule against hearsay evidence.
Furthermore, independent evidence, such as the registry
receipt of the assessment notice, or a certification from the
Bureau of Posts, could have easily been obtained. Yet
respondent failed to present such evidence.
G.R. No. 162243

December 3, 2009

101

HON. HEHERSON ALVAREZ substituted by HON. ELISEA

G. GOZUN, in her capacity as Secretary of the Department
of Environment and Natural Resources, Petitioner,
vs.
PICOP RESOURCES, INC., Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 164516
PICOP
RESOURCES,
INC.,
Petitioner,
vs.
HON. HEHERSON ALVAREZ substituted by HON. ELISEA
G. GOZUN, in her capacity as Secretary of the Department
of Environment and Natural Resources Respondent.

paper mills in accordance with the warranty and agreement of

July 29, 1969 between the government and PICOPs
predecessor-in-interest; and c) to honor and respect the
Government Warranties and contractual obligations to PICOP
strictly in accordance with the warranty and agreement dated
July 29, [1969] between the government and PICOPs
predecessor-in-interest. x x x.2
On 11 October 2002, the RTC rendered a Decision granting
PICOPs Petition for Mandamus, thus:
WHEREFORE, premises considered,
Mandamus is hereby GRANTED.

the

Petition

for

The Respondent DENR Secretary Hon. Heherson Alvarez is

hereby ordered:

x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 171875
THE HON. ANGELO T. REYES (formerly Hon. Elisea G.
Gozun), in his capacity as Secretary of the Department of
Environment and Natural Resources (DENR), Petitioner,
vs.
PAPER INDUSTRIES CORP. OF THE PHILIPPINES (PICOP),
Respondent.
RESOLUTION

1. to sign, execute and deliver the IFMA contract

and/or documents to PICOP and issue the
corresponding IFMA assignment number on the area
covered by the IFMA, formerly TLA No. 43, as
amended;
2. to issue the necessary permit allowing petitioner to
act and harvest timber from the said area of TLA No.
43, sufficient to meet the raw material requirements of
petitioners pulp and paper mills in accordance with
the warranty and agreement of July 29, 1969 between
the government and PICOPs predecessor-in-interest;
and

CHICO-NAZARIO, J.:
The cause of action of PICOP Resources, Inc. (PICOP) in its
Petition for Mandamus with the trial court is clear: the
government is bound by contract, a 1969 Document signed by
then President Ferdinand Marcos, to enter into an Integrated
Forest Management Agreement (IFMA) with PICOP. Since the
remedy of mandamus lies only to compel an officer to perform
a ministerial duty, and since the 1969 Document itself has a
proviso requiring compliance with the laws and the
Constitution, the issues in this Motion for Reconsideration are
the following: (1) firstly, is the 1969 Document a contract
enforceable under the Non-Impairment Clause of the
Constitution, so as to make the signing of the IFMA a
ministerial duty? (2) secondly, did PICOP comply with all the
legal and constitutional requirements for the issuance of an
IFMA?
To recall, PICOP filed with the Department of Environment and
Natural Resources (DENR) an application to have its Timber
License Agreement (TLA) No. 43 converted into an IFMA. In
the middle of the processing of PICOPs application, however,
PICOP refused to attend further meetings with the DENR.
Instead, on 2 September 2002, PICOP filed before the
Regional Trial Court (RTC) of Quezon City a Petition for
Mandamus1 against then DENR Secretary Heherson T.
Alvarez. PICOP seeks the issuance of a privileged writ of
mandamus to compel the DENR Secretary to sign, execute
and deliver an IFMA to PICOP, as well as to
[I]ssue the corresponding IFMA assignment number on the
area covered by the IFMA, formerly TLA No. 43, as amended;
b) to issue the necessary permit allowing petitioner to act and
harvest timber from the said area of TLA No. 43, sufficient to
meet the raw material requirements of petitioners pulp and

3. to honor and respect the Government Warranties

and contractual obligations to PICOP strictly in
accordance with the warranty and agreement dated
July 29, 1999 (sic) between the government and
PICOPs predecessor-in-interest (Exhibits "H", "H-1"
to "H-5", particularly the following:
a) the area coverage of TLA No. 43, which
forms part and parcel of the government
warranties;
b) PICOP tenure over the said area of TLA
No. 43 and exclusive right to cut, collect and
remove sawtimber and pulpwood for the
period ending on April 26, 1977; and said
period to be renewable for [an]other 25 years
subject to compliance with constitutional and
statutory requirements as well as with
existing policy on timber concessions; and
c) The peaceful and adequate enjoyment by
PICOP of the area as described and
specified in the aforesaid amended Timber
License Agreement No. 43.
The Respondent Secretary Alvarez is likewise ordered to pay
petitioner the sum of P10 million a month beginning May 2002
until the conversion of TLA No. 43, as amended, to IFMA is
formally effected and the harvesting from the said area is
granted.3
On 25 October 2002, the DENR Secretary filed a Motion for
Reconsideration.4 In a 10 February 2003 Order, the RTC

102

denied the DENR Secretarys Motion for Reconsideration and

granted PICOPs Motion for the Issuance of Writ of Mandamus
and/or Writ of Mandatory Injunction. 5 The fallo of the 11
October 2002 Decision was practically copied in the 10
February 2003 Order, although there was no mention of the
damages imposed against then DENR Secretary Alvarez.6 The
DENR Secretary filed a Notice of Appeal 7 from the 11 October
2002 Decision and the 10 February 2003 Order.
On 19 February 2004, the Seventh Division of the Court of
Appeals affirmed8 the Decision of the RTC, to wit:
WHEREFORE, the appealed Decision is hereby AFFIRMED
with modification that the order directing then DENR Secretary
Alvarez "to pay petitioner-appellee the sum of P10 million a
month beginning May, 2002 until the conversion to IFMA of
TLA No. 43, as amended, is formally effected and the
harvesting from the said area is granted" is hereby deleted. 9
Challenging the deletion of the damages awarded to it, PICOP
filed a Motion for Partial Reconsideration 10 of this Decision,
which was denied by the Court of Appeals in a 20 July 2004
Resolution.11
The DENR Secretary and PICOP filed with this Court separate
Petitions for Review of the 19 February 2004 Court of Appeals
Decision. These Petitions were docketed as G.R. No. 162243
and No. 164516, respectively. These cases were consolidated
with G.R. No. 171875, which relates to the lifting of a Writ of
Preliminary Injunction enjoining the execution pending appeal
of the foregoing Decision.
On 29 November 2006, this Court rendered the assailed
Decision on the Consolidated Petitions:
WHEREFORE, the Petition in G.R. No. 162243 is GRANTED.
The Decision of the Court of Appeals insofar as it affirmed the
RTC Decision granting the Petition for Mandamus filed by
Paper Industries Corp. of the Philippines (PICOP) is hereby
REVERSED and SET ASIDE. The Petition in G.R. No. 164516
seeking the reversal of the same Decision insofar as it nullified
the award of damages in favor of PICOP is DENIED for lack of
merit. The Petition in G.R. No. 171875, assailing the lifting of
the Preliminary Mandatory Injunction in favor of the Secretary
of Environment and Natural Resources is DISMISSED on the
ground of mootness.12
On 18 January 2006, PICOP filed the instant Motion for
Reconsideration, based on the following grounds:
I.
THE HONORABLE COURT ERRED IN HOLDING THAT THE
CONTRACT WITH PRESIDENTIAL WARRANTY SIGNED BY
THE PRESIDENT OF THE REPUBLIC ON 29 JUNE 1969
ISSUED TO PICOP IS A MERE PERMIT OR LICENSE AND IS
NOT A CONTRACT, PROPERTY OR PROPERTY RIGHT
PROTECTED BY THE DUE PROCESS CLAUSE OF THE
CONSTITUTION

PERFORMANCE FOR KEEPING THE NATURAL FOREST

GENERALLY INTACT AFTER 50 YEARS OF FOREST
OPERATIONS. THIS COMPLETES THE REQUIREMENT FOR
AUTOMATIC CONVERSION UNDER SECTION 9 OF DAO 9953.
III.
WITH DUE RESPECT, THE HONORABLE COURT, IN
REVERSING THE FINDINGS OF FACTS OF THE TRIAL
COURT AND THE COURT OF APPEALS, MISAPPRECIATED
THE EVIDENCE, TESTIMONIAL AND DOCUMENTARY,
WHEN IT RULED THAT:
i.
PICOP FAILED TO SUBMIT A FIVE-YEAR FOREST
PROTECTION PLAN AND A SEVEN-YEAR REFORESTATION
PLAN FOR THE YEARS UNDER REVIEW.
ii.
PICOP FAILED TO COMPLY WITH THE PAYMENT OF
FOREST CHARGES.
iii.
PICOP DID NOT COMPLY WITH THE REQUIREMENT FOR A
CERTIFICATION FROM THE NCIP THAT THE AREA OF TLA
43 DOES NOT OVERLAP WITH ANY ANCESTRAL DOMAIN.
iv.
PICOP FAILED TO HAVE PRIOR CONSULTATION WITH AND
APPROVAL FROM THE SANGUNIAN CONCERNED, AS
REQUIRED BY SECTION 27 OF THE REPUBLIC ACT NO.
7160, OTHERWISE KNOWN AS THE LOCAL GOVERNMENT
CODE OF 1991.
v.
PCIOP FAILED TO SECURE SOCIAL ACCEPTABILITY
UNDER PRESIDENTIAL DECREE NO. 1586.
IV
THE MOTIVATION OF ALVAREZ IN RECALLING THE
CLEARANCE FOR AUTOMATIC CONVERSION HE ISSUED
ON 25 OCTOBER 2001 WAS NOT DUE TO ANY
SHORTCOMING FROM PICOP BUT DUE TO HIS
DETERMINATION TO EXCLUDE 28,125 HECTARES FROM
THE CONVERSION AND OTHER THINGS.

II.

On 15 December 2008, on Motion by PICOP, the Third Division

of this Court resolved to refer the consolidated cases at bar to
the Court en banc. On 16 December 2008, this Court sitting en
banc resolved to accept the said cases and set them for oral
arguments. Oral arguments were conducted on 10 February
2009.

THE EVALUATION OF PICOPS MANAGEMENT OF THE TLA

43 NATURAL FOREST CLEARLY SHOWED SATISFACTORY

PICOPs Cause of Action: Matters PICOP Should Have Proven

to Be Entitled to a Writ of Mandamus

103

In seeking a writ of mandamus to compel the issuance of an

IFMA in its favor, PICOP relied on a 29 July 1969 Document,
the so-called Presidential Warranty approved by then President
Ferdinand E. Marcos in favor of PICOPs predecessor-ininterest, Bislig Bay Lumber Company, Inc. (BBLCI). PICOPs
cause of action is summarized in paragraphs 1.6 and 4.19 of
its Petition for Mandamus:
1.6 Respondent Secretary impaired the obligation of contract
under the said Warranty and Agreement of 29 July 1969 by
refusing to respect the tenure; and its renewal for another
twenty five (25) years, of PICOP over the area covered by the
said Agreement which consists of permanent forest lands with
an aggregate area of 121,587 hectares and alienable and
disposable lands with an aggregate area of approximately
21,580 hectares, and petitioners exclusive right to cut, collect
and remove sawtimber and pulpwood therein and the peaceful
and adequate enjoyment of the said area as described and
specified in petitioners Timber License Agreement (TLA) No.
43 guaranteed by the Government, under the Warranty and
Agreement of 29 July 1969.13
4.19 Respondent is in violation of the Constitution and has
impaired the obligation of contract by his refusal to respect: a)
the tenurial rights of PICOP over the forest area covered by
TLA No. 43, as amended and its renewal for another twenty
five (25) years; b) the exclusive right of PICOP to cut, collect
and remove sawtimber and pulpwood therein; and c) PICOPs
peaceful and adequate enjoyment of the said area which the
government guaranteed under the Warranty and Agreement of
29 July 1969.14
The grounds submitted by PICOP in its Petition for Mandamus
are as follows:
I
Respondent secretary has unlawfully refused and/or neglected
to sign and execute the IFMA contract of PICOP even as the
latter has complied with all the legal requirements for the
automatic conversion of TLA No. 43, as amended, into an
IFMA.
II
Respondent Secretary acted with grave abuse of discretion
and/or in excess of jurisdiction in refusing to sign and execute
PICOPs IFMA contract, notwithstanding that PICOP had
complied with all the requirements for Automatic Conversion
under DAO 99-53, as in fact Automatic Conversion was already
cleared in October, 2001, and was a completed process.
III
Respondent Secretary has impaired the obligation of contract
under a valid and binding warranty and agreement of 29 July
1969 between the government and PICOPs predecessor-ininterest, by refusing to respect: a) the tenure of PICOP, and its
renewal for another twenty five (25) years, over the TLA No.43
area covered by said agreement; b) the exclusive right to cut,
collect and remove sawtimber and pulpwood timber; and c) the
peaceful and adequate enjoyment of the said area.
IV

As a result of respondent Secretarys unlawful refusal and/or

neglect to sign and deliver the IFMA contract, and violation of
the constitutional rights of PICOP against non-impairment of
the obligation of contract (Sec. 10, Art. III, 1997 [sic]
Constitution), PICOP suffered grave and irreparable
damages.15
Petitions for Mandamus are governed by Rule 65 of the Rules
of Court, Section 3 of which provides:
SEC. 3. Petition for mandamus.When any tribunal,
corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully
excludes another from the use and enjoyment of a right or
office to which such other is entitled, and there is no other
plain, speedy and adequate remedy in the ordinary course of
law, the person aggrieved thereby may file a verified petition in
the proper court, alleging the facts with certainty and praying
that judgment be rendered commanding the respondent,
immediately or at some other time to be specified by the court,
to do the act required to be done to protect the rights of the
petitioner, and to pay the damages sustained by the petitioner
by reason of the wrongful acts of the respondent. (Emphasis
supplied.)
PICOP is thus asking this Court to conclude that the DENR
Secretary is specifically enjoined by law to issue an IFMA in its
favor. An IFMA, as defined by DENR Administrative Order
(DAO) No. 99-53,16 is [A] production-sharing contract entered into by and between
the DENR and a qualified applicant wherein the DENR grants
to the latter the exclusive right to develop, manage, protect and
utilize a specified area of forestland and forest resource therein
for a period of 25 years and may be renewed for another 25year period, consistent with the principle of sustainable
development and in accordance with an approved CDMP, and
under which both parties share in its produce.17
PICOP stresses the word "automatic" in Section 9 of this DAO
No. 99-53:
Sec. 9. Qualifications of Applicants. The applicants for IFMA
shall be:
(a) A Filipino citizen of legal age; or,
(b) Partnership, cooperative or corporation whether
public or private, duly registered under Philippine
laws.
However, in the case of application for conversion of TLA into
IFMA, an automatic conversion after proper evaluation shall be
allowed, provided the TLA holder shall have signified such
intention prior to the expiry of the TLA, PROVIDED further, that
the TLA holder has showed satisfactory performance and have
complied in the terms of condition of the TLA and pertinent
rules and regulations. (Emphasis supplied.)18
This administrative regulation provision allowing automatic
conversion after proper evaluation can hardly qualify as a law,
much less a law specifically enjoining the execution of a
contract. To enjoin is "to order or direct with urgency; to instruct

104

with authority; to command."19 "Enjoin is a mandatory word, in

legal parlance, always; in common parlance, usually." 20 The
word "allow," on the other hand, is not equivalent to the word
"must," and is in no sense a command.21
As an extraordinary writ, the remedy of mandamus lies only to
compel an officer to perform a ministerial duty, not a
discretionary one; mandamus will not issue to control the
exercise of discretion of a public officer where the law imposes
upon him the duty to exercise his judgment in reference to any
manner in which he is required to act, because it is his
judgment that is to be exercised and not that of the court.22
The execution of agreements, in itself, involves the exercise of
discretion. Agreements are products of negotiations and mutual
concessions, necessitating evaluation of their provisions on the
part of both parties. In the case of the IFMA, the evaluation on
the part of the government is specifically mandated in the
afore-quoted Section 3 of DAO No. 99-53. This evaluation
necessarily involves the exercise of discretion and judgment on
the part of the DENR Secretary, who is tasked not only to
negotiate the sharing of the profit arising from the IFMA, but
also to evaluate the compliance with the requirements on the
part of the applicant.
Furthermore, as shall be discussed later, the period of an IFMA
that was merely automatically converted from a TLA in
accordance with Section 9, paragraph 2 of DAO No. 99-53
would only be for the remaining period of the TLA. Since the
TLA of PICOP expired on 26 April 2002, the IFMA that could
have been granted to PICOP via the automatic conversion
provision in DAO No. 99-53 would have expired on the same
date, 26 April 2002, and the PICOPs Petition for Mandamus
would have become moot.
This is where the 1969 Document, the purported Presidential
Warranty, comes into play. When PICOPs application was
brought to a standstill upon the evaluation that PICOP had yet
to comply with the requirements for such conversion, PICOP
refused to attend further meetings with the DENR and instead
filed a Petition for Mandamus, insisting that the DENR
Secretary had impaired the obligation of contract by his refusal
to respect: a) the tenurial rights of PICOP over the forest area
covered by TLA No. 43, as amended, and its renewal for
another twenty-five (25) years; b) the exclusive right of PICOP
to cut, collect and remove sawtimber and pulpwood therein;
and c) PICOPs peaceful and adequate enjoyment of the said
area which the government guaranteed under the Warranty
and Agreement of 29 July 1969. 23
PICOP is, thus, insisting that the government is obligated by
contract to issue an IFMA in its favor because of the 1969
Document.
A contract, being the law between the parties, can indeed, with
respect to the State when it is a party to such contract, qualify
as a law specifically enjoining the performance of an act.
Hence, it is possible that a writ of mandamus may be issued to
PICOP, but only if it proves both of the following:
1) That the 1969 Document is a contract recognized
under the non-impairment clause; and
2) That the 1969 Document specifically enjoins the
government to issue the IFMA.

If PICOP fails to prove any of these two matters, the grant of a

privileged writ of mandamus is not warranted. This was why we
pronounced in the assailed Decision that the overriding
controversy involved in the Petition was one of law. 24 If PICOP
fails to prove any of these two matters, more significantly its
assertion that the 1969 Document is a contract, PICOP fails to
prove its cause of action.25 Not even the satisfactory
compliance with all legal and administrative requirements for
an IFMA would save PICOPs Petition for Mandamus.
The reverse, however, is not true. The 1969 Document
expressly states that the warranty as to the tenure of PICOP is
"subject to compliance with constitutional and statutory
requirements as well as with existing policy on timber
concessions." Thus, if PICOP proves the two above-mentioned
matters, it still has to prove compliance with statutory and
administrative requirements for the conversion of its TLA into
an IFMA.
Exhaustion of Administrative Remedies
PICOP uses the same argument that the government is
bound by contract to issue the IFMA in its refusal to exhaust
all administrative remedies by not appealing the alleged illegal
non-issuance of the IFMA to the Office of the President. PICOP
claimed in its Petition for Mandamus with the trial court that:
1.10 This petition falls as an exception to the exhaustion of
administrative remedies. The acts of respondent DENR
Secretary complained of in this petition are patently illegal; in
derogation of the constitutional rights of petitioner against nonimpairment of the obligation of contracts; without jurisdiction, or
in excess of jurisdiction or so capriciously as to constitute an
abuse of discretion amounting to excess or lack of jurisdiction;
and moreover, the failure or refusal of a high government
official such as a Department head from whom relief is brought
to act on the matter was considered equivalent to exhaustion of
administrative remedies (Sanoy v. Tantuico, 50 SCRA 455
[1973]), and there are compelling and urgent reasons for
judicial intervention (Bagatsing v. Ramirez, 74 SCRA 306
[1976]).
Thus, if there has been no impairment of the obligation of
contracts in the DENR Secretarys non-issuance of the IFMA,
the proper remedy of PICOP in claiming that it has complied
with all statutory and administrative requirements for the
issuance of the IFMA should have been with the Office of the
President. This makes the issue of the enforceability of the
1969 Document as a contract even more significant.
The Nature and Effects of the Purported 29 July 1969
Presidential Warranty
Base Metals Case
PICOP challenges our ruling that the 1969 Document is not a
contract. Before we review this finding, however, it must be
pointed out that one week after the assailed Decision, another
division of this Court promulgated a Decision concerning the
very same 1969 Document. Thus, in PICOP Resources, Inc. v.
Base Metals Mineral Resources Corporation,26 five other
Justices who were still unaware of this Divisions Decision,27
came up with the same conclusion as regards the same issue
of whether former President Marcoss Presidential Warranty is
a contract:

105

Finally, we do not subscribe to PICOPs argument that the

Presidential Warranty dated September 25, 1968 is a contract
protected by the non-impairment clause of the 1987
Constitution.
An examination of the Presidential Warranty at once reveals
that it simply reassures PICOP of the governments
commitment to uphold the terms and conditions of its timber
license and guarantees PICOPs peaceful and adequate
possession and enjoyment of the areas which are the basic
sources of raw materials for its wood processing complex. The
warranty covers only the right to cut, collect, and remove
timber in its concession area, and does not extend to the
utilization of other resources, such as mineral resources,
occurring within the concession.
The Presidential Warranty cannot be considered a contract
distinct from PTLA No. 47 and FMA No. 35. We agree with the
OSGs position that it is merely a collateral undertaking which
cannot amplify PICOPs rights under its timber license. Our
definitive ruling in Oposa v. Factoran that a timber license is
not a contract within the purview of the non-impairment clause
is edifying. We declared:
Needless to say, all licenses may thus be revoked or rescinded
by executive action. It is not a contract, property or a property
right protected by the due process clause of the Constitution. In
Tan vs. Director of Forestry, this Court held:

Since timber licenses are not contracts, the non-impairment

clause, which reads:
"SEC. 10. No law impairing the obligation of contracts shall be
passed."
cannot be invoked.
The Presidential Warranty cannot, in any manner, be construed
as a contractual undertaking assuring PICOP of exclusive
possession and enjoyment of its concession areas. Such an
interpretation would result in the complete abdication by the
State in favor of PICOP of the sovereign power to control and
supervise the exploration, development and utilization of the
natural resources in the area.28
The Motion for Reconsideration was denied with finality on 14
February 2007. A Second Motion for Reconsideration filed by
PICOP was denied on 23 May 2007.
PICOP insists that the pronouncement in Base Metals is a
mere obiter dictum, which would not bind this Court in resolving
this Motion for Reconsideration. In the oral arguments,
however, upon questioning from the ponente himself of Base
Metals, it was agreed that the issue of whether the 1969
Document is a contract was necessary in the resolution of
Base Metals:

"x x x A timber license is an instrument by which the State

regulates the utilization and disposition of forest resources to
the end that public welfare is promoted. A timber license is not
a contract within the purview of the due process clause; it is
only a license or a privilege, which can be validly withdrawn
whenever dictated by public interest or public welfare as in this
case.

JUSTICE TINGA:

A license is merely a permit or privilege to do what otherwise

would be unlawful, and is not a contract between the authority,
federal, state, or municipal, granting it and the person to whom
it is granted; neither is it a property or a property right, nor does
it create a vested right; nor is it taxation' (C.J. 168). Thus, this
Court held that the granting of license does not create
irrevocable rights, neither is it property or property rights
(People vs. Ong Tin, 54 O.G. 7576). x x x"

ATTY. AGABIN:

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co.,

Inc. vs. Deputy Executive Secretary:
"x x x Timber licenses, permits and license agreements are the
principal instruments by which the State regulates the
utilization and disposition of forest resources to the end that
public welfare is promoted. And it can hardly be gainsaid that
they merely evidence a privilege granted by the State to
qualified entities, and do not vest in the latter a permanent or
irrevocable right to the particular concession area and the
forest products therein. They may be validly amended,
modified, replaced or rescinded by the Chief Executive when
national interests so require. Thus, they are not deemed
contracts within the purview of the due process of law clause
[See Sections 3(ee) and 20 of Pres. Decree No. 705, as
amended. Also, Tan v. Director of Forestry, G.R. No. L-24548,
October 27, 1983, 125 SCRA 302]."

And do you confirm that one of the very issues raised by

PICOP in that case [PICOP Resources Inc. v. Base Metal
Mineral Resources Corporation] revolves around its claim that
a Presidential Warranty is protected by the non-impairment
c[l]ause of the Constitution.

Yes, I believe that statement was made by the Court, your

Honor.
JUSTICE TINGA:
Yes. And that claim on the part of PICOP necessarily implies
that the Presidential Warranty according to PICOP is a contract
protected by the non-impairment clause.
ATTY. AGABIN:
Yes, Your Honor.
JUSTICE TINGA:
Essentially, the PICOP raised the issue of whether the
Presidential Warranty is a contract or not.
ATTY. AGABIN:
Yes, Your Honor.
JUSTICE TINGA:

106

And therefore any ruling on the part of the Court on that issue
could not be an obiter dictum.

Timber License for that matter is not a contract protected by

the non-impairment laws.

ATTY. AGABIN:

ATTY. AGABIN:

Your Honor, actually we believe that the basic issue in that

case was whether or not Base Metals could conduct mining
activities underneath the forest reserve allotted to PICOP and
the Honorable Court ruled that the Mining Act of 1995 as well
as the Department Order of DENR does not disallow mining
activity under a forest reserve.

Well, it is our submission, your Honor, that it is obiter because,

that issue even a phrase by PICOP was not really fully argued
by the parties for the Honorable Court and it seems from my
reading at least it was just an aside given by the Honorable
Court to decide on that issue raised by PICOP but it was not
necessary to the decision of the court.

JUSTICE TINGA:

JUSTICE TINGA:

But it was PICOP itself which raised the claim that a

Presidential Warranty is a contract. And therefore be, should
be protected on the under the non-impairment clause of the
Constitution.

It was not necessary[?]

ATTY. AGABIN:
Yes, Your Honor. Except that
JUSTICE TINGA:
So, how can you say now that the Court merely uttered,
declared, laid down an obiter dictum in saying that the
Presidential Warranty is not a contract, and it is not being a
contract, it is not prohibited by the non-impairment clause.

ATTY. AGABIN:
To the decision of the Court.
JUSTICE TINGA:
It was.
ATTY. AGABIN:
It was not necessary.
JUSTICE TINGA:

ATTY. AGABIN:
It was.
This Honorable Court could have just ruled, held that the
mining law allows mining activities under a forest reserve
without deciding on that issue that was raised by PICOP, your
Honor, and therefore we believe.

ATTY. AGABIN:
Yes.

JUSTICE TINGA:

JUSTICE TINGA:

It could have been better if PICOP has not raised that issue
and had not claimed that the Presidential Warranty is not a
contract.

And PICOP devoted quite a number of pages in [its]

memorandum to that issue and so did the Court [in its
Decision].

ATTY. AGABIN:

ATTY. AGABIN:

Well, that is correct, your Honor except that the Court could
have just avoided that question. Because

Anyway, your Honor, we beg the Court to revisit, not to29

JUSTICE TINGA:

Interpretation of the 1969 Document That Would Be in

Harmony with the Constitution

Why[?]
ATTY. AGABIN:
It already settled the issue, the basic issue.
JUSTICE TINGA:

To remove any doubts as to the contents of the 1969

Document, the purported Presidential Warranty, below is a
complete text thereof:
Republic
of
Department
of Agriculture
OFFICE
OF
Diliman, Quezon City

the
Philippines
and
Natural
Resources
THE
SECRETARY

Yes, because the Court in saying that merely reiterated a

number of rulings to the effect that the Presidential Warranty, a

107

D-53,
Licenses
Bislig
Bay
(Bislig, Surigao)

(T.L.A.
Lumber

No.
Co.,

43)
Inc.

July 29, 1969

Bislig
Bay
[unreadable
Makati, Rizal

(Sgd.)
FERNANDO
Secretary
of
and Natural Resources

LOPEZ
Agriculture

Encl.:
Lumber
word]

Co.,

Inc.

RECOMMENDED BY:
Bldg.
(Sgd.)
JOSE
Acting Director of Forestry

VIADO

S i r s:
APPROVED:
This has reference to the request of the Board of Investments
through its Chairman in a letter dated July 16, 1969 for a
warranty on the boundaries of your concession area under
Timber License Agreement No. 43, as amended.
We are made to understand that your company is committed to
support the first large scale integrated wood processing
complex hereinafter called: "The Project") and that such
support will be provided not only in the form of the supply of
pulpwood and other wood materials from your concession but
also by making available funds generated out of your own
operations, to supplement PICOPs operational sources of
funds and other financial arrangements made by him. In order
that your company may provide such support effectively, it is
understood that you will call upon your stockholders to take
such steps as may be necessary to effect a unification of
managerial, technical, economic and manpower resources
between your company and PICOP.
It is in the public interest to promote industries that will
enhance the proper conservation of our forest resources as
well as insure the maximum utilization thereof to the benefit of
the national economy. The administration feels that the PICOP
project is one such industry which should enjoy priority over the
usual logging operations hitherto practiced by ordinary timber
licensees: For this reason, we are pleased to consider
favorably the request.
We confirm that your Timber License Agreement No. 43, as
amended (copy of which is attached as Annex "A" hereof which
shall form part and parcel of this warranty) definitely
establishes the boundary lines of your concession area which
consists of permanent forest lands with an aggregate area of
121,587 hectares and alienable or disposable lands with an
aggregate area of approximately 21,580 hectares.
We further confirm that your tenure over the area and exclusive
right to cut, collect and remove sawtimber and pulpwood shall
be for the period ending on April 26, 1977; said period to be
renewable for other 25 years subject to compliance with
constitutional and statutory requirements as well as with
existing policy on timber concessions.
The peaceful and adequate enjoyment by you of your area as
described and specified in your aforesaid amended Timber
License Agreement No. 43 is hereby warranted provided that
pertinent laws, regulations and the terms and conditions of
your license agreement are observed.
Very truly yours,

(Sgd.)
FERDINAND
President of the Philippines

E.

MARCOS

ACCEPTED:
BISLIG BAY LBR. CO., INC.
By:
(Sgd.)
President

JOSE

E.

SORIANO

PICOP interprets this document in the following manner:

6.1 It is clear that the thrust of the government warranty is to
establish a particular area defined by boundary lines of TLA
No. 43 for the PICOP Project. In consideration for PICOPs
commitment to pursue and establish the project requiring huge
investment/funding from stockholders and lending institutions,
the government provided a warranty that ensures the
continued and exclusive right of PICOP to source its raw
materials needs from the forest and renewable trees within the
areas established.
6.2 As a long-term support, the warranty covers the initial
twenty five (25) year period and is renewable for periods of
twenty five (25) years provided the project continues to exist
and operate. Very notably, the wording of the Presidential
Warranty connotes that for as long as the holder complies with
all the legal requirements, the term of the warranty is not
limited to fifty (50) years but other twenty five (25) years.
6.3 Note must be made that the government warranted that
PICOPs tenure over the area and exclusive right to cut, collect
and remove saw timber and pulpwood shall be for the period
ending on 26 April 1977 and said period to be renewable for
other 25 years subject to "compliance with constitutional and
statutory requirements as well as existing policy on timber
requirements". It is clear that the renewal for other 25 years,
not necessarily for another 25 years is guaranteed. This
explains why on 07 October 1977, TLA No. 43, as amended,
was automatically renewed for another period of twenty five
(25) years to expire on 26 April 2002.30
PICOPs interpretation of the 1969 Document cannot be
sustained. PICOPs claim that the term of the warranty is not
limited to fifty years, but that it extends to other fifty years,
perpetually, violates Section 2, Article XII of the Constitution
which provides:

108

Section 2. All lands of the public domain, waters, minerals,

coal, petroleum, and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, flora and fauna,
and other natural resources are owned by the State. With the
exception of agricultural lands, all other natural resources shall
not be alienated. The exploration, development, and utilization
of natural resources shall be under the full control and
supervision of the State. The State may directly undertake
such activities, or it may enter into co-production, joint venture,
or production-sharing agreements with Filipino citizens, or
corporations or associations at least sixty per centum of whose
capital is owned by such citizens. Such agreements may be for
a period not exceeding twenty-five years, renewable for not
more than twenty-five years, and under such terms and
conditions as may be provided by law. In cases of water rights
for irrigation, water supply fisheries, or industrial uses other
than the development of water power, beneficial use may be
the measure and limit of the grant.
Mr. Justice Dante O. Tingas interpretation of the 1969
Document is much more in accord with the laws and the
Constitution. What one cannot do directly, he cannot do
indirectly. Forest lands cannot be alienated in favor of private
entities. Granting to private entities, via a contract, a
permanent, irrevocable, and exclusive possession of and right
over forest lands is tantamount to granting ownership thereof.
PICOP, it should be noted, claims nothing less than having
exclusive, continuous and uninterrupted possession of its
concession areas,31 where all other entrants are illegal,32 and
where so-called "illegal settlers and squatters" are
apprehended.33
IFMAs are production-sharing agreements concerning the
development and utilization of natural resources. As such,
these agreements "may be for a period not exceeding twentyfive years, renewable for not more than twenty-five years, and
under such terms and conditions as may be provided by law."
Any superior "contract" requiring the State to issue TLAs and
IFMAs whenever they expire clearly circumvents Section 2,
Article XII of the Constitution, which provides for the only
permissible schemes wherein the full control and supervision of
the State are not derogated: co-production, joint venture, or
production-sharing agreements within the time limit of twentyfive years, renewable for another twenty-five years.

The maximum trend of agreement to develop and utilize

natural resources like forest products is 25 years plus another
25 years or a total of 50 years correct?
ATTY. AGABIN
Yes, Your Honor.
JUSTICE CARPIO:
That is true for the 1987, 1973, 1935 Constitution, correct?
ATTY. AGABIN:
Yes, Your Honor.
JUSTICE CARPIO:
The TLA here, TLA 43, expired, the first 25 years expired in
1977, correct?
ATTY. AGABIN:
Yes, Your Honor.
JUSTICE CARPIO:
And it was renewed for another 25 years until 2002, the 50th
year?
ATTY. AGABIN:
Yes, Your Honor.
JUSTICE CARPIO:
Now, could PICOP before the end of the 50th year lets say in
2001, one year before the expiration, could it have asked for an
extension of another 25 years of its TLA agreement[?]

On its face, the 1969 Document was meant to expire on 26

April 2002, upon the expiration of the expected extension of the
original TLA period ending on 26 April 1977:

ATTY. AGABIN:

We further confirm that your tenure over the area and exclusive
right to cut, collect and remove sawtimber and pulpwood shall
be for the period ending on April 26, 1977; said period to be
renewable for other 25 years subject to compliance with
constitutional and statutory requirements as well as with
existing policy on timber concessions.1avvphi1

JUSTICE CARPIO:

I believe so, Your Honor.

But the Constitution says, maximum of fifty years. How could

you ask for another 25 years of its TLA.
ATTY. AGABIN:

Any interpretation extending the application of the 1969

Document beyond 26 April 2002 and any concession that may
be granted to PICOP beyond the said date would violate the
Constitution, and no amount of legal hermeneutics can change
that. Attempts of PICOP to explain its way out of this
Constitutional provision only led to absurdities, as exemplified
in the following excerpt from the oral arguments:
JUSTICE CARPIO:

Well, your Honor, we believe on a question like this, this

Honorable Court should balance the interest.
JUSTICE CARPIO:
The Constitution is very clear, you have only a maximum of 50
years, 25 plus another 25. PICOP could never have applied for
an extension, for a third 25-year term whether under the 1935

109

Constitution, the 1973 Constitution and the 1987 Constitution,

correct?

It is correct, Your Honor, except that in this case, what is

actually our application is that the law provides for the
conversion of existing TLA into IFMA.

ATTY. AGABIN:
JUSTICE CARPIO:
Your Honor, except that we are invoking the warranty, the
terms of the warranty.

So, they file the petition for conversion before the end of the
50th year for IFMA.

JUSTICE CARPIO:
ATTY. AGABIN:
Can the warranty prevail over the Constitution?
Yes, Your Honor.
ATTY. AGABIN:
JUSTICE CARPIO:
Well, it is a vested right, your Honor.
JUSTICE CARPIO:
Yes, but whatever it is, can it prevail over the Constitution?
ATTY. AGABIN:
The Constitution itself provides that vested rights should be .
JUSTICE CARPIO:
If it is not in violation of specific provision of the Constitution.
The Constitution says, 25 years plus another 25 years, thats
the end of it. You mean to say that a President of the
Philippines can give somebody 1,000 years license?

But IFMA is the same, it is based on Section 2, Article 12 of the

Constitution, develop and utilize natural resources because as
you said when the new constitution took effect we did away
with the old licensing regime, we have now co-production, a
production sharing, joint venture, direct undertaking but still the
same developing and utilizing the natural resources, still comes
from section 2, Art. 12 of the Constitution. It is still a license but
different format now.
ATTY. AGABIN:
It is correct, Your Honor, except that the regimes of joint
venture, co-production and production sharing are what is
referred to in the constitution, Your Honor, and still covered
JUSTICE CARPIO:

Well, that is not our position, Your Honor. Because our position
is that .

Yes, but it is covered by same 25 year[s], you mean to say

people now can circumvent the 50 year maximum term by
calling their TLA as IFMA and after fifty years calling it ISMA,
after another 50 years call it MAMA.

JUSTICE CARPIO:

ATTY. AGABIN:

My question is, what is the maximum term, you said 50 years.

So, my next question is, can PICOP apply for an extension of
another 25 years after 2002, the 50th year?

Yes, Your Honor. Because

ATTY. AGABIN:

It can be done.

Yes, based on the contract of warranty, Your Honor, because

the contract of warranty.

ATTY. AGABIN:

ATTY. AGABIN:

JUSTICE CARPIO:

That is provided for by the department itself.34

JUSTICE CARPIO:
But in the PICOP license it is very clear, it says here, provision
28, it says the license agreement is for a total of 50 years. I
mean it is very simple, the President or even Congress cannot
pass a law extending the license, whatever kind of license to
utilize natural resources for more than fifty year[s]. I mean even
the law cannot do that. It cannot prevail over the Constitution.
Is that correct, Counsel?
ATTY. AGABIN:

PICOP is, in effect, arguing that the DENR issued DAO No. 9953 in order to provide a way to circumvent the provisions of the
Constitution limiting agreements for the utilization of natural
resources to a maximum period of fifty years. Official duties
are, however, disputably considered to be regularly
performed,35 and good faith is always presumed.
DAO No. 99-53 was issued to change the means by which the
government enters into an agreement with private entities for
the utilization of forest products. DAO No. 99-53 is a late
response to the change in the constitutional provisions on
natural resources from the 1973 Constitution, which allowed

110

the granting of licenses to private entities, 36 to the present

Constitution, which provides for co-production, joint venture, or
production-sharing agreements as the permissible schemes
wherein private entities may participate in the utilization of
forest products. Since the granting of timber licenses ceased to
be a permissible scheme for the participation of private entities
under the present Constitution, their operations should have
ceased upon the issuance of DAO No. 99-53, the rule
regulating the schemes under the present Constitution. This
would be iniquitous to those with existing TLAs that would not
have expired yet as of the issuance of DAO No. 99-53,
especially those with new TLAs that were originally set to
expire after 10 or even 20 or more years. The DENR thus
inserted a provision in DAO No. 99-53 allowing these TLA
holders to finish the period of their TLAs, but this time as
IFMAs, without the rigors of going through a new application,
which they have probably just gone through a few years ago.

ground to make a distinction between those with existing TLA

and those who are applying for the first time for IFMA?

Such an interpretation would not only make DAO No. 99-53

consistent with the provisions of the Constitution, but would
also prevent possible discrimination against new IFMA
applicants:

Precisely, that is the reason why there should be an evaluation

of what you mentioned earlier of the development plan.

ASSOCIATE JUSTICE DE CASTRO:

Yes, Your Honor.

I ask this question because of your interpretation that the

period of the IFMA, if your TLA is converted into IFMA, would
cover a new a fresh period of twenty-five years renewable by
another period of twenty-five years.

ASSOCIATE JUSTICE DE CASTRO:

DEAN AGABIN:
Yes, Your Honor.
ASSOCIATE JUSTICE DE CASTRO:
Dont you think that will, in effect, be invidious discrimination
with respect to other applicants if you are granted a fresh
period of twenty-five years extendible to another twenty-five
years?
DEAN AGABIN:
I dont think it would be, Your Honor, considering that the IFMA
is different regime from the TLA. And not only that, there are
considerations of public health and ecology which should come
into play in this case, and which we had explained in our
opening statement and, therefore the provision of the
Constitution on the twenty-five limits for renewal of coproduction, joint venture and production sharing agreements,
should be balanced with other values stated in the Constitution,
like the value of balanced ecology, which should be in harmony
with the rhythm of nature, or the policy of forest preservation in
Article XII, Section 14 of the Constitution. These are all
important policy considerations which should be balanced
against the term limits in Article II of the Constitution.
ASSOCIATE JUSTICE DE CASTRO:
The provision of this Administrative Order regarding automatic
conversion may be reasonable, if, I want to know if you agree
with me, if we limit this automatic conversion to the remaining
period of the TLA, because in that case there will be a valid

DEAN AGABIN:
Well, Your Honor, we beg to disagree, because as I said TLAs
are completely different from IFMA. The TLA has no production
sharing or co-production agreement or condition. All that the
licensee has to do is, to pay forest charges, taxes and other
impositions from the local and national government. On the
other hand, the IFMAs contained terms and conditions which
are completely different, and that they either impose coproduction, production sharing or joint venture terms. So its a
completely different regime, Your Honor.
ASSOCIATE JUSTICE DE CASTRO:

DEAN AGABIN:

So it will be reasonable to convert a TLA into an IFMA without

considering the development plan submitted by other
applicants or the development plan itself of one seeking
conversion into IFMA if it will only be limited to the period, the
original period of the TLA. But once you go beyond the period
of the TLA, then you will be, the DENR is I think should
evaluate the different proposals of the applicants if we are
thinking of a fresh period of twenty-five years, and which is
renewable under the Constitution by another twenty-five years.
So the development plan will be important in this case, the
submission of the development plan of the different applicants
must be considered. So I dont understand why you mentioned
earlier that the development plan will later on be a subject
matter of negotiation between the IFMA grantee and the
government. So it seems that it will be too late in the day to
discuss that if you have already converted the TLA into IFMA or
if the government has already granted the IFMA, and then it
will later on study the development plan, whether it is viable or
not, or it is sustainable or not, and whether the development
plan of the different applicants are, are, which of the
development plan of the different applicants is better or more
advantageous to the government.37
PICOP insists that the alleged Presidential Warranty, having
been signed on 29 July 1969, could not have possibly
considered the limitations yet to be imposed by future
issuances, such as the 1987 Constitution. However, Section 3,
Article XVIII of said Constitution, provides:
Section 3. All existing laws, decrees, executive orders,
proclamations, letters of instructions, and other executive
issuances not inconsistent with this Constitution shall remain
operative until amended, repealed, or revoked.
In the recent case Sabio v. Gordon, 38 we ruled that "(t)he clear
import of this provision is that all existing laws, executive
orders, proclamations, letters of instructions and other

111

executive issuances inconsistent

Constitution are repealed."

or

repugnant

to

the

would not be altered despite this provision. Hence, BBLCI

endeavored to obtain the 1969 Document, which provides:

When a provision is susceptible of two interpretations, "the one

that will render them operative and effective and harmonious
with other provisions of law" 39 should be adopted. As the
interpretations in the assailed Decision and in Mr. Justice
Tingas ponencia are the ones that would not make the subject
Presidential Warranty unconstitutional, these are what we shall
adopt.

We confirm that your Timber License Agreement No. 43, as

amended (copy of which is attached as Annex "A" hereof which
shall form part and parcel of this warranty) definitely
establishes the boundary lines of your concession area which
consists of permanent forest lands with an aggregate area of
121,587 hectares and alienable or disposable lands with an
aggregate area of approximately 21,580 hectares.

Purpose of the 1969 Document: Assurance That the

Boundaries of Its Concession Area Would Not Be Altered
Despite the Provision in the TLA that the DENR Secretary Can
Amend Said Boundaries

We further confirm that your tenure over the area and exclusive
right to cut, collect and remove sawtimber and pulpwood shall
be for the period ending on April 26, 1977; said period to be
renewable for other 25 years subject to compliance with
constitutional and statutory requirements as well as with
existing policy on timber concessions.

In the assailed Decision, we ruled that the 1969 Document

cannot be considered a contract that would bind the
government regardless of changes in policy and the demands
of public interest and social welfare. PICOP claims this
conclusion "did not take into consideration that PICOP already
had a valid and current TLA before the contract with warranty
was signed in 1969."40 PICOP goes on: "The TLA is a license
that equips any TLA holder in the country for harvesting of
timber. A TLA is signed by the Secretary of the DANR now
DENR. The Court ignored the significance of the need for
another contract with the Secretary of the DANR but this time
with the approval of the President of the Republic." 41 PICOP
then asks us: "If PICOP/BBLCI was only an ordinary TLA
holder, why will it go through the extra step of securing another
contract just to harvest timber when the same can be served
by the TLA signed only by the Secretary and not requiring the
approval of the President of the Republic(?)"42
The answer to this query is found in TLA No. 43 itself wherein,
immediately after the boundary lines of TLA No. 43 were
established, the following conditions were given:
This license is granted to the said party of the second part
upon the following express conditions:
I. That authority is granted hereunder to the party of
the second part43 to cut, collect or remove firewood or
other minor forest products from the area embraced in
this license agreement except as hereinafter provided.
II. That the party of the first part44 may amend or alter
the description of the boundaries of the area covered
by this license agreement to conform with official
surveys and that the decision of the party of the first
part as to the exact location of the said boundaries
shall be final.
III. That if the party of the first part deems it necessary
to establish on the ground the boundary lines of the
area granted under this license agreement, the party
of the second part shall furnish to the party of the first
part or its representatives as many laborers as it
needs and all the expenses to be incurred on the work
including the wages of such laborers shall be paid by
the party of the second part.45
Thus, BBLCI needed an assurance that the boundaries of its
concession area, as established in TLA No. 43, as amended,

The peaceful and adequate enjoyment by you of your area as

described and specified in your aforesaid amended Timber
License Agreement No. 43 is hereby warranted provided that
pertinent laws, regulations and the terms and conditions of
your license agreement are observed.46
In Koa v. Court of Appeals, 47 we ruled that a warranty is a
collateral undertaking and is merely part of a contract. As a
collateral undertaking, it follows the principal wherever it goes.
When this was pointed out by the Solicitor General, PICOP
changed its designation of the 1969 Document from
"Presidential Warranty" or "government warranty" in all its
pleadings prior to our Decision, to "contract with warranty" in its
Motion for Reconsideration. This, however, is belied by the
statements in the 29 July 1969 Document, which refers to itself
as "this warranty."
Re: Allegation
Considerations

That

There

Were

Mutual

Contract

Had the 29 July 1969 Document been intended as a contract, it

could have easily said so. More importantly, it could have
clearly defined the mutual considerations of the parties thereto.
It could have also easily provided for the sanctions for the
breach of the mutual considerations specified therein. PICOP
had vigorously argued that the 1969 Document was a contract
because of these mutual considerations, apparently referring to
the following paragraph of the 1969 Document:
We are made to understand that your company is committed to
support the first large scale integrated wood processing
complex hereinafter called: "The Project") and that such
support will be provided not only in the form of the supply of
pulpwood and other wood materials from your concession but
also by making available funds generated out of your own
operations, to supplement PICOPs operational surces (sic) of
funds and other financial arrangements made by him. In order
that your company may provide such support effectively, it is
understood that you will call upon your stockholders to take
such steps as may be necessary to effect a unification of
managerial, technical, economic and manpower resources
between your company and PICOP.1avvphi1
This provision hardly evinces a contract consideration (which,
in PICOPs interpretation, is in exchange for the exclusive and
perpetual tenure over 121,587 hectares of forest land and
21,580 hectares of alienable and disposable lands). As

112

elucidated by PICOP itself in bringing up the Investment

Incentives Act which we shall discuss later, and as shown by
the tenor of the 1969 Document, the latter document was more
of a conferment of an incentive for BBLCIs investment rather
than a contract creating mutual obligations on the part of the
government, on one hand, and BBLCI, on the other. There was
no stipulation providing for sanctions for breach if BBLCIs
being "committed to support the first large scale integrated
wood processing complex" remains a commitment. Neither did
the 1969 Document give BBLCI a period within which to pursue
this commitment.
According to Article 1350 of the Civil Code, "(i)n onerous
contracts the cause is understood to be, for each contracting
party, the prestation or promise of a thing or service by the
other."48 Private investments for ones businesses, while indeed
eventually beneficial to the country and deserving to be given
incentives, are still principally and predominantly for the benefit
of the investors. Thus, the "mutual" contract considerations by
both parties to this alleged contract would be both for the
benefit of one of the parties thereto, BBLCI, which is not
obligated by the 1969 Document to surrender a share in its
proceeds any more than it is already required by its TLA and by
the tax laws.
PICOPs argument that its investments can be considered as
contract consideration derogates the rule that "a license or a
permit is not a contract between the sovereignty and the
licensee or permittee, and is not a property in the constitutional
sense, as to which the constitutional proscription against the
impairment of contracts may extend." All licensees obviously
put up investments, whether they are as small as a tricycle unit
or as big as those put up by multi-billion-peso corporations. To
construe these investments as contract considerations would
be to abandon the foregoing rule, which would mean that the
State would be bound to all licensees, and lose its power to
revoke or amend these licenses when public interest so
dictates.
The power to issue licenses springs from the States police
power, known as "the most essential, insistent and least
limitable of powers, extending as it does to all the great public
needs."49 Businesses affecting the public interest, such as the
operation of public utilities and those involving the exploitation
of natural resources, are mandated by law to acquire licenses.
This is so in order that the State can regulate their operations
and thereby protect the public interest. Thus, while these
licenses come in the form of "agreements," e.g., "Timber
License Agreements," they cannot be considered contracts
under the non-impairment clause.50
PICOP found this argument "lame," arguing, thus:
43. It is respectfully submitted that the aforesaid
pronouncement in the Decision is an egregious and
monumental error.
44. The Decision could not dismiss as "preposterous" the
mutual covenants in the Presidential Warranty which calls for a
huge investment of Php500 million at that time in 1969 out of
which Php268,440,000 raised from domestic foreign lending
institution to establish the first large scale integrated wood
processing complex in the Philippines.

45. The Decision puts up a lame explanation that "all licensees

put up investments in pursuing their business"
46. Now there are about a hundred timber licenses issued by
the Government thru the DENR, but these are ordinary timber
licenses which involve the mere cutting of timber in the
concession area, and nothing else. Records in the DENR
shows that no timber licensee has put up an integrated large
wood processing complex in the Philippines except PICOP.51
PICOP thus argues on the basis of quantity, and wants us to
distinguish between the investment of the tricycle driver and
that of the multi-billion corporation. However, not even billions
of pesos in investment can change the fact that natural
resources and, therefore, public interest are involved in
PICOPs venture, consequently necessitating the full control
and supervision by the State as mandated by the Constitution.
Not even billions of pesos in investment can buy forest lands,
which is practically what PICOP is asking for by interpreting the
1969 Document as a contract giving it perpetual and exclusive
possession over such lands. Among all TLA holders in the
Philippines, PICOP has, by far, the largest concession area at
143,167 hectares, a land area more than the size of two Metro
Manilas.52 How can it not expect to also have the largest
investment?
Investment Incentives Act
PICOP then claims that the contractual nature of the 1969
Document was brought about by its issuance in accordance
with and pursuant to the Investment Incentives Act. According
to PICOP:
The conclusion in the Decision that to construe PICOPs
investments as a consideration in a contract would be to
stealthily render ineffective the principle that a license is not a
contract between the sovereignty and the licensee is so flawed
since the contract with the warranty dated 29 July 1969 was
issued by the Government in accordance with and pursuant to
Republic Act No. 5186, otherwise known as "The Investment
Incentives Act."53
PICOP then proceeds to cite Sections 2 and 4(d) and (e) of
said act:
Section 2. Declaration of Policy To accelerate the sound
development of the national economy in consonance with the
principles and objectives of economic nationalism, and in
pursuance of a planned, economically feasible and practicable
dispersal of industries, under conditions which will encourage
competition and discharge monopolies, it is hereby declared to
be the policy of the state to encourage Filipino and foreign
investments, as hereinafter set out, in projects to develop
agricultural, mining and manufacturing industries which
increase national income most at the least cost, increase
exports, bring about greater economic stability, provide more
opportunities for employment, raise the standards of living of
the people, and provide for an equitable distribution of wealth.
It is further declared to be the policy of the state to welcome
and encourage foreign capital to establish pioneer enterprises
that are capital intensive and would utilize a substantial amount
of domestic raw materials, in joint venture with substantial
Filipino capital, whenever available.

113

Section 4. Basic Rights and Guarantees. All investors and

enterprises are entitled to the basic rights and guarantees
provided in the constitution. Among other rights recognized by
the Government of the Philippines are the following:
xxxx
d) Freedom from Expropriation. There shall be no
expropriation by the government of the property represented by
investments or of the property of enterprises except for public
use or in the interest of national welfare and defense and upon
payment of just compensation. x x x.
e) Requisition of Investment. There shall be no requisition of
the property represented by the investment or of the property
of enterprises, except in the event of war or national
emergency and only for the duration thereof. Just
compensation shall be determined and paid either at the time
of requisition or immediately after cessation of the state of war
or national emergency. Payments received as compensation
for the requisitioned property may be remitted in the currency
in which the investment was originally made and at the
exchange rate prevailing at the time of remittance, subject to
the provisions of Section seventy-four of republic Act
Numbered Two hundred sixty-five.
Section 2 speaks of the policy of the State to encourage
Filipino and foreign investments. It does not speak of how this
policy can be implemented. Implementation of this policy is
tackled in Sections 5 to 12 of the same law,54 which PICOP
failed to mention, and for a good reason. None of the 24
incentives enumerated therein relates to, or even remotely
suggests that, PICOPs proposition that the 1969 Document is
a contract.
PICOP could indeed argue that the enumeration is not
exclusive. Certainly, granting incentives to investors, whether
included in the enumeration or not, would be an
implementation of this policy. However, it is presumed that
whatever incentives may be given to investors should be within
the bounds of the laws and the Constitution. The declaration of
policy in Section 2 cannot, by any stretch of the imagination, be
read to provide an exception to either the laws or, heaven
forbid, the Constitution. Exceptions are never presumed and
should be convincingly proven. Section 2 of the Investment
Incentives Act cannot be read as exempting investors from the
Constitutional provisions (1) prohibiting private ownership of
forest lands; (2) providing for the complete control and
supervision by the State of exploitation activities; or (3) limiting
exploitation agreements to twenty-five years, renewable for
another twenty-five years.
Section 4(d) and (e), on the other hand, is a recognition of
rights already guaranteed under the Constitution. Freedom
from expropriation is granted under Section 9 of Article III 55 of
the Constitution, while the provision on requisition is a negative
restatement of Section 6, Article XII.56
Refusal to grant perpetual and exclusive possession to PICOP
of its concession area would not result in the expropriation or
requisition of PICOPs property, as these forest lands belong to
the State, and not to PICOP. This is not changed by PICOPs
allegation that:

Since it takes 35 years before the company can go back and

harvest their residuals in a logged-over area, it must be
assured of tenure in order to provide an inducement for the
company to manage and preserve the residuals during their
growth period. This is a commitment of resources over a span
of 35 years for each plot for each cycle. No company will
undertake the responsibility and cost involved in policing,
preserving and managing residual forest areas until it were
sure that it had firm title to the timber.57
The requirement for logging companies to preserve and
maintain forest areas, including the reforestation thereof, is one
of the prices a logging company must pay for the exploitation
thereof. Forest lands are meant to be enjoyed by countless
future generations of Filipinos, and not just by one logging
company. The requirements of reforestation and preservation
of the concession areas are meant to protect them, the future
generations, and not PICOP. Reforestation and preservation of
the concession areas are not required of logging companies so
that they would have something to cut again, but so that the
forest would remain intact after their operations. That PICOP
would not accept the responsibility to preserve its concession
area if it is not assured of tenure thereto does not speak well of
its corporate policies.
Conclusion
In sum, PICOP was not able to prove either of the two things it
needed to prove to be entitled to a Writ of Mandamus against
the DENR Secretary. The 1969 Document is not a contract
recognized under the non-impairment clause and, even if we
assume for the sake of argument that it is, it did not enjoin the
government to issue an IFMA in 2002 either. These are the
essential elements in PICOPs cause of action, and the failure
to prove the same warrants a dismissal of PICOPs Petition for
Mandamus, as not even PICOPs compliance with all the
administrative and statutory requirements can save its Petition
now.
Whether PICOP Has Complied with the Statutory and
Administrative Requirements for the Conversion of the TLA to
an IFMA
In the assailed Decision, our ruling was based on two distinct
grounds, each one being sufficient in itself for us to rule that
PICOP was not entitled to a Writ of Mandamus: (1) the 1969
Document, on which PICOP hinges its right to compel the
issuance of an IFMA, is not a contract; and (2) PICOP has not
complied with all administrative and statutory requirements for
the issuance of an IFMA.
When a court bases its decision on two or more grounds, each
is as authoritative as the other and neither is obiter dictum. 58
Thus, both grounds on which we based our ruling in the
assailed Decision would become judicial dictum, and would
affect the rights and interests of the parties to this case unless
corrected in this Resolution on PICOPs Motion for
Reconsideration. Therefore, although PICOP would not be
entitled to a Writ of Mandamus even if the second issue is
resolved in its favor, we should nonetheless resolve the same
and determine whether PICOP has indeed complied with all
administrative and statutory requirements for the issuance of
an IFMA.

114

While the first issue (on the nature of the 1969 Document) is
entirely legal, this second issue (on PICOPs compliance with
administrative and statutory requirements for the issuance of
an IFMA) has both legal and factual sub-issues. Legal subissues include whether PICOP is legally required to (1) consult
with and acquire an approval from the Sanggunian concerned
under Sections 26 and 27 of the Local Government Code; and
(2) acquire a Certification from the National Commission on
Indigenous Peoples (NCIP) that the concession area does not
overlap with any ancestral domain. Factual sub-issues include
whether, at the time it filed its Petition for Mandamus, PICOP
had submitted the required Five-Year Forest Protection Plan
and Seven-Year Reforestation Plan and whether PICOP had
paid all forest charges.
For the factual sub-issues, PICOP invokes the doctrine that
factual findings of the trial court, especially when upheld by the
Court of Appeals, deserve great weight. However, deserving of
even greater weight are the factual findings of administrative
agencies that have the expertise in the area of concern. The
contentious facts in this case relate to the licensing, regulation
and management of forest resources, the determination of
which belongs exclusively to the DENR:
SECTION 4. Mandate. The Department shall be the primary
government agency responsible for the conservation,
management, development and proper use of the countrys
environment and natural resources, specifically forest and
grazing lands, mineral resources, including those in reservation
and watershed areas, and lands of the public domain, as well
as the licensing and regulation of all natural resources as may
be provided for by law in order to ensure equitable sharing of
the benefits derived therefrom for the welfare of the present
and future generations of Filipinos.59
When parties file a Petition for Certiorari against judgments of
administrative agencies tasked with overseeing the
implementation of laws, the findings of such administrative
agencies are entitled to great weight. In the case at bar, PICOP
could not have filed a Petition for Certiorari, as the DENR
Secretary had not yet even determined whether PICOP should
be issued an IFMA. As previously mentioned, when PICOPs
application was brought to a standstill upon the evaluation that
PICOP had yet to comply with the requirements for the
issuance of an IFMA, PICOP refused to attend further
meetings with the DENR and instead filed a Petition for
Mandamus against the latter. By jumping the gun, PICOP did
not diminish the weight of the DENR Secretarys initial
determination.
Forest Protection and Reforestation Plans
The Performance Evaluation Team tasked to appraise PICOPs
performance on its TLA No. 43 found that PICOP had not
submitted its Five-Year Forest Protection Plan and its SevenYear Reforestation Plan.60
In its Motion for Reconsideration, PICOP asserts that, in its
Letter of Intent dated 28 August 2000 and marked as Exhibit L
in the trial court, there was a reference to a Ten-Year
Sustainable Forest Management Plan (SFMP), in which a FiveYear Forest Protection Plan and a Seven-Year Reforestation
Plan were allegedly incorporated. PICOP submitted a machine
copy of a certified photocopy of pages 50-67 and 104-110 of
this SFMP in its Motion for Reconsideration. PICOP claims that

the existence of this SFMP was repeatedly asserted during the

IFMA application process.61
Upon examination of the portions of the SFMP submitted to us,
we cannot help but notice that PICOPs concept of forest
protection is the security of the area against "illegal" entrants
and settlers. There is no mention of the protection of the
wildlife therein, as the focus of the discussion of the silvicultural
treatments and the SFMP itself is on the protection and
generation of future timber harvests. We are particularly
disturbed by the portions stating that trees of undesirable
quality shall be removed.
However, when we required the DENR Secretary to comment
on PICOPs Motion for Reconsideration, the DENR Secretary
did not dispute the existence of this SFMP, or question
PICOPs assertion that a Ten-Year Forest Protection Plan and
a Ten-Year Reforestation Plan are already incorporated therein.
Hence, since the agency tasked to determine compliance with
IFMA administrative requirements chose to remain silent in the
face of allegations of compliance, we are constrained to
withdraw our pronouncement in the assailed Decision that
PICOP had not submitted a Five-Year Forest Protection Plan
and a Seven-Year Reforestation Plan for its TLA No. 43. As
previously mentioned, the licensing, regulation and
management of forest resources are the primary
responsibilities of the DENR.62
The compliance discussed above is, of course, only for the
purpose of determining PICOPs satisfactory performance as a
TLA holder, and covers a period within the subsistence of
PICOPs TLA No. 43. This determination, therefore, cannot
prohibit the DENR from requiring PICOP, in the future, to
submit proper forest protection and reforestation plans
covering the period of the proposed IFMA.
Forest Charges
In determining that PICOP did not have unpaid forest charges,
the Court of Appeals relied on the assumption that if it were
true that PICOP had unpaid forest charges, it should not have
been issued an approved Integrated Annual Operation Plan
(IAOP) for the year 2001-2002 by Secretary Alvarez himself.63
In the assailed Decision, we held that the Court of Appeals had
been selective in its evaluation of the IAOP, as it disregarded
the part thereof that shows that the IAOP was approved
subject to several conditions, not the least of which was the
submission of proof of the updated payment of forest charges
from April 2001 to June 2001.64 We also held that even if we
considered for the sake of argument that the IAOP should not
have been issued if PICOP had existing forestry accounts, the
issuance of the IAOP could not be considered proof that
PICOP had paid the same. Firstly, the best evidence of
payment is the receipt thereof. PICOP has not presented any
evidence that such receipts were lost or destroyed or could not
be produced in court.65 Secondly, the government cannot be
estopped by the acts of its officers. If PICOP has been issued
an IAOP in violation of the law, allegedly because it may not be
issued if PICOP had existing forestry accounts, the
government cannot be estopped from collecting such amounts
and providing the necessary sanctions therefor, including the
withholding of the IFMA until such amounts are paid.

115

We therefore found that, as opposed to the Court of Appeals

findings, which were based merely on estoppel of government
officers, the positive and categorical evidence presented by the
DENR Secretary was more convincing with respect to the issue
of payment of forestry charges:
1. Forest Management Bureau (FMB) Senior Forest
Management
Specialist
(SFMS)
Ignacio
M.
Evangelista testified that PICOP had failed to pay its
regular forest charges covering the period from 22
September 2001 to 26 April 2002 in the total amount
of P15,056,054.0566 PICOP also allegedly paid late
most of its forest charges from 1996 onwards, by
reason of which, PICOP is liable for a surcharge of
25% per annum on the tax due and interest of 20%
per annum which now amounts to P150,169,485.02.67
Likewise, PICOP allegedly had overdue and unpaid
silvicultural fees in the amount of P2,366,901.00 as of
30 August 2002.68 Summing up the testimony,
therefore, it was alleged that PICOP had unpaid and
overdue
forest
charges
in
the
sum
of
P167,592,440.90 as of 10 August 2002.69
2. Collection letters were sent to PICOP, but no official
receipts are extant in the DENR record in Bislig City
evidencing payment of the overdue amount stated in
the said collection letters.70 There were no official
receipts for the period covering 22 September 2001 to
26 April 2002.
We also considered these pieces of evidence more convincing
than the other ones presented by PICOP:
1. PICOP presented the certification of Community
Environment and Natural Resources Office (CENRO)
Officer Philip A. Calunsag, which refers only to
PICOPs alleged payment of regular forest charges
covering the period from 14 September 2001 to 15
May 2002.71 We noted that it does not mention similar
payment of the penalties, surcharges and interests
that PICOP incurred in paying late several forest
charges, which fact was not rebutted by PICOP.
2. The 27 May 2002 Certification by CENRO
Calunsag specified only the period covering 14
September 2001 to 15 May 2002 and the amount of
P53,603,719.85 paid by PICOP without indicating the
corresponding volume and date of production of the
logs. This is in contrast to the findings of SFMS
Evangelista, which cover the period from CY 1996 to
30 August 2002 and includes penalties, interests, and
surcharges for late payment pursuant to DAO 80,
series of 1987.
3. The 21 August 2002 PICOP-requested certification
issued by Bill Collector Amelia D. Arayan, and
attested to by CENRO Calunsag himself, shows that
PICOP paid only regular forest charges for its log
production covering 1 July 2001 to 21 September
2001. However, there were log productions after 21
September 2001, the regular forest charges for which
have not been paid, amounting to P15,056,054.05.72
The same certification shows delayed payment of
forest charges, thereby corroborating the testimony of
SFMS Evangelista and substantiating the imposition
of penalties and surcharges.

In its Motion for Reconsideration, PICOP claims that SFMS

Evangelista is assigned to an office that has nothing to do with
the collection of forest charges, and that he based his
testimony on the Memoranda of Forest Management Specialist
II (FMS II) Teofila Orlanes and DENR, Bislig City Bill Collector
Amelia D. Arayan, neither of whom was presented to testify on
his or her Memorandum. PICOP also submitted an Addendum
to Motion for Reconsideration, wherein it appended certified
true copies of CENRO Summaries with attached Official
Receipts tending to show that PICOP had paid a total of
P81,184,747.70 in forest charges for 10 January 2001 to 20
December 2002, including the period during which SFMS
Evangelista claims PICOP did not pay forest charges (22
September 2001 to 26 April 2002).
Before proceeding any further, it is necessary for us to point
out that, as with our ruling on the forest protection and
reforestation plans, this determination of compliance with the
payment of forest charges is exclusively for the purpose of
determining PICOPs satisfactory performance on its TLA No.
43. This cannot bind either party in a possible collection case
that may ensue.
An evaluation of the DENR Secretarys position on this matter
shows a heavy reliance on the testimony of SFMS Evangelista,
making it imperative for us to strictly scrutinize the same with
respect to its contents and admissibility.
PICOP claims that SFMS Evangelistas office has nothing to do
with the collection of forest charges. According to PICOP, the
entity having administrative jurisdiction over it is CENRO, Bislig
City by virtue of DENR Administrative Order No. 96-36, dated
20 November 1996, which states:
1. In order for the DENR to be able to exercise closer and more
effective supervision, management and control over the forest
resources within the areas covered by TLA No. 43, PTLA No.
47 and IFMA No. 35 of the PICOP Resources, Inc., (PRI) and,
at the same time, provide greater facility in the delivery of
DENR services to various publics, the aforesaid forest holdings
of PRI are hereby placed under the exclusive jurisdiction of
DENR Region No. XIII with the CENR Office at Bislig, Surigao
del Sur, as directly responsible thereto. x x x.
We disagree. Evangelista is an SFMS assigned at the Natural
Forest Management Division of the FMB, DENR. In
Evangelistas aforementioned affidavit submitted as part of his
direct examination, Evangelista enumerated his duties and
functions as SFMS:
1. As SFMS, I have the following duties and functions:
a) To evaluate and act on cases pertaining to
forest management referred to in the Natural
forest Management Division;
b) To monitor, verify and validate forest
management and related activities by timber
licences as to their compliance to approved
plans and programs;
c) To conduct investigation and verification of
compliance by timber licenses/permittees to
existing DENR rules and regulations;

116

d) To gather field data and information to be

used in the formulation of forest policies and
regulations; and

PICOP is mandated to pay a surcharge of 25% per

annum of the tax due and interest of 20% per annum
for late payment of forest charges.

e)
To
perform
other
duties
and
responsibilities as may be directed by
superiors.73

11. The overdue unpaid forest charges of PICOP as

shown in the attached tabulation marked as Annex 4
hereof is P150,169,485.02. Likewise, PICOP has
overdue and unpaid silvicultural fees in the amount of
P2,366,901.00 from 1996 to the present.

PICOP also alleges that the testimony of SFMS

Evangelista was based on the aforementioned
Memoranda of Orlanes and Arayan and that, since
neither Orlanes nor Arayan was presented as a
witness, SFMS Evangelistas testimony should be
deemed hearsay. SFMS Evangelistas 1 October
2002 Affidavit,74 which was offered as part of his
testimony, provides:
2. Sometime in September, 2001 the DENR Secretary
was furnished a copy of forest Management Specialist
II (FMS II) Teofila L. Orlanes Memorandum dated
September 24, 2001 concerning unopaid forest
charges of PICOP. Attached to the said Memorandum
was a Memorandum dated September 19, 2001 of
Amelia D. Arayan, Bill collector of the DENR R13-14,
Bislig City. Copies of the said Memoranda are
attached as Annexes 1 and 2, respectively.
3. The said Memoranda were referred to the FMB
Director for appropriate action.
4. Thus, on August 5, 2002, I was directed by the
FMB Director to proceed to Region 13 to gather
forestry-related data and validate the report contained
in the Memoranda of Ms. Orlanes and Arayan.
5. On August 6, 2002, I proceeded to DENR Region
13 in Bislig City. A copy of my Travel Order is attached
as Annex 3.
6. Upon my arrival at CENRO, Bislig, surigao del Sur,
I coordinated with CENRO Officer Philip A. Calunsag
and requested him to make available to me the
records regarding the forest products assessments of
PICOP.
7. After I was provided with the requested records, I
evaluated and collected the data.
8. After the evaluation, I found that the unpaid forest
charges adverted to in the Memoranda of Mr. Orlanes
and Arayan covering the period from May 8, 2001 to
July 7, 2001 had already been paid but late. I further
found out that PICOP had not paid its forest charges
covering the period from September 22, 2001 to April
26, 2002 in the total amount of P15,056,054.05.
9. I also discovered that from 1996 up to august 30,
2002, PICOP paid late some of its forest charges in
1996 and consistently failed to pay late its forest
charges from 1997 up to the present time.
10. Under Section 7.4 of DAO No. 80 Series of 197\87
and Paragraph (4a), Section 10 of BIR revenue
Regulations No. 2-81 dated November 18, 1980,

12. In all, PICOP has an outstanding and overdue

total obligation of P167,592,440.90 as of August 30,
2002 based on the attached tabulation which is
marked as Annex 5 hereof.75
Clearly, SFMS Evangelista had not relied on the Memoranda of
Orlanes and Arayan. On the contrary, he traveled to Surigao
del Sur in order to verify the contents of these Memoranda.
SFMS Evangelista, in fact, revised the findings therein, as he
discovered that certain forest charges adverted to as unpaid
had already been paid.
This does not mean, however, that SFMS Evangelistas
testimony was not hearsay. A witness may testify only on facts
of which he has personal knowledge; that is, those derived
from his perception, except in certain circumstances allowed by
the Rules.76 Otherwise, such testimony is considered hearsay
and, hence, inadmissible in evidence.77
SFMS Evangelista, while not relying on the Memoranda of
Orlanes and Arayan, nevertheless relied on records, the
preparation of which he did not participate in. 78 These records
and the persons who prepared them were not presented in
court, either. As such, SFMS Evangelistas testimony, insofar
as he relied on these records, was on matters not derived from
his own perception, and was, therefore, hearsay.
Section 44, Rule 130 of the Rules of Court, which speaks of
entries in official records as an exception to the hearsay rule,
cannot excuse the testimony of SFMS Evangelista. Section 44
provides:
SEC. 44. Entries in official records. Entries in official records
made in the performance of his duty by a public officer of the
Philippines, or by a person in the performance of a duty
specially enjoined by law, are prima facie evidence of the facts
therein stated.
In Africa v. Caltex,79 we enumerated the following requisites for
the admission of entries in official records as an exception to
the hearsay rule: (1) the entries were made by a public officer
or a private person in the performance of a duty; (2) the
performance of the duty is especially enjoined by law; (3) the
public officer or the private person had sufficient knowledge of
the facts stated by him, which must have been acquired by him
personally or through official information.
The presentation of the records themselves would, therefore,
have been admissible as an exception to the hearsay rule even
if the public officer/s who prepared them was/were not
presented in court, provided the above requisites could be
adequately proven. In the case at bar, however, neither the
records nor the persons who prepared them were presented in
court. Thus, the above requisites cannot be sufficiently proven.
Also, since SFMS Evangelista merely testified based on what

117

those records contained, his testimony was hearsay evidence

twice removed, which was one step too many to be covered by
the official-records exception to the hearsay rule.
SFMS Evangelistas testimony of nonpayment of forest
charges was, furthermore, based on his failure to find official
receipts corresponding to billings sent to PICOP. As stated
above, PICOP attached official receipts in its Addendum to
Motion for Reconsideration to this Court. While this course of
action is normally irregular in judicial proceedings, we merely
stated in the assailed Decision that "the DENR Secretary has
adequately proven that PICOP has, at this time, failed to
comply with administrative and statutory requirements for the
conversion of TLA No. 43 into an IFMA,"80 and that "this
disposition confers another chance to comply with the
foregoing requirements."81
In view of the foregoing, we withdraw our pronouncement that
PICOP has unpaid forestry charges, at least for the purpose of
determining compliance with the IFMA requirements.
NCIP Certification
The Court of Appeals held that PICOP need not comply with
Section 59 of Republic Act No. 8371, which requires prior
certification from the NCIP that the areas affected do not
overlap with any ancestral domain before any IFMA can be
entered into by the government. According to the Court of
Appeals, Section 59 should be interpreted to refer to ancestral
domains that have been duly established as such by the
continuous possession and occupation of the area concerned
by indigenous peoples since time immemorial up to the
present. The Court of Appeals held that PICOP had acquired
property rights over TLA No. 43 areas, being in exclusive,
continuous and uninterrupted possession and occupation of
these areas since 1952 up to the present.
In the assailed Decision, we reversed the findings of the Court
of Appeals. Firstly, the Court of Appeals ruling defies the settled
jurisprudence we have mentioned earlier, that a TLA is neither
a property nor a property right, and that it does not create a
vested right.82
Secondly, the Court of Appeals resort to statutory construction
is misplaced, as Section 59 of Republic Act No. 8379 is clear
and unambiguous:
SEC. 59. Certification Precondition. All departments and
other governmental agencies shall henceforth be strictly
enjoined from issuing, renewing or granting any concession,
license or lease, or entering into any production-sharing
agreement, without prior certification from the NCIP that the
area affected does not overlap with any ancestral domain.
Such certification shall only be issued after a field-based
investigation is conducted by the Ancestral Domains Office of
the area concerned: Provided, That no certification shall be
issued by the NCIP without the free and prior informed and
written consent of the ICCs/IPs concerned: Provided, further,
That no department, government agency or governmentowned or controlled corporation may issue new concession,
license, lease, or production sharing agreement while there is a
pending application for a CADT: Provided, finally, That the
ICCs/IPs shall have the right to stop or suspend, in accordance
with this Act, any project that has not satisfied the requirement
of this consultation process.

PICOP had tried to put a cloud of ambiguity over Section 59 of

Republic Act No. 8371 by invoking the definition of Ancestral
Domains in Section 3(a) thereof, wherein the possesssion by
Indigenous
Cultural
Communities/Indigenous
Peoples
(ICCs/IPs) must have been continuous to the present.
However, we noted the exception found in the very same
sentence invoked by PICOP:
a) Ancestral domains Subject to Section 56 hereof, refers to
all areas generally belonging to ICCs/IPs comprising lands,
inland waters, coastal areas, and natural resources therein,
held under a claim of ownership, occupied or possessed by
ICCs/IPs, by themselves or through their ancestors,
communally or individually since time immemorial, continuously
to the present except when interrupted by war, force majeure
or displacement by force, deceit, stealth or as a consequence
of government projects or any other voluntary dealings entered
into by government and private individuals/corporations, and
which are necessary to ensure their economic, social and
cultural welfare. It shall include ancestral lands, forests,
pasture, residential, agricultural, and other lands individually
owned whether alienable and disposable or otherwise, hunting
grounds, burial grounds, worship areas, bodies of water,
mineral and other natural resources, and lands which may no
longer be exclusively occupied by ICCs/IPs but from which
they traditionally had access to for their subsistence and
traditional activities, particularly the home ranges of ICCs/IPs
who are still nomadic and/or shifting cultivators;
Ancestral domains, therefore, remain as such even when
possession or occupation of these areas has been interrupted
by causes provided under the law, such as voluntary dealings
entered
into
by
the
government
and
private
individuals/corporations. Consequently, the issuance of TLA
No. 43 in 1952 did not cause the ICCs/IPs to lose their
possession or occupation over the area covered by TLA No.
43.
Thirdly, we held that it was manifestly absurd to claim that the
subject lands must first be proven to be part of ancestral
domains before a certification that the lands are not part of
ancestral domains can be required, and invoked the separate
opinion of now Chief Justice Reynato Puno in Cruz v.
Secretary of DENR83:
As its subtitle suggests, [Section 59 of R.A. No. 8371] requires
as a precondition for the issuance of any concession, license
or agreement over natural resources, that a certification be
issued by the NCIP that the area subject of the agreement
does not lie within any ancestral domain. The provision does
not vest the NCIP with power over the other agencies of the
State as to determine whether to grant or deny any concession
or license or agreement. It merely gives the NCIP the authority
to ensure that the ICCs/IPs have been informed of the
agreement and that their consent thereto has been obtained.
Note that the certification applies to agreements over natural
resources that do not necessarily lie within the ancestral
domains. For those that are found within the said domains,
Sections 7(b) and 57 of the IPRA apply.
PICOP rejects the entire disposition of this Court on the matter,
relying on the following theory:
84. It is quite clear that Section 59 of R.A. 8371 does not apply
to the automatic conversion of TLA 43 to IFMA.

118

First, the automatic conversion of TLA 43 to an IFMA is not a

new project. It is a mere continuation of the harvesting process
in an area that PICOP had been managing, conserving and
reforesting for the last 50 years since 1952. Hence any
pending application for a CADT within the area, cannot affect
much less hold back the automatic conversion. That the
government now wishes to change the tenurial system to an
IFMA could not change the PICOP project, in existence and
operating for the last 30 (sic) years, into a new one.84
PICOPs position is anything but clear. What is clearly provided
for in Section 59 is that it covers "issuing, renewing or granting
(of) any concession, license or lease, or entering into any
production sharing agreement." PICOP is implying that, when
the government changed the tenurial system to an IFMA,
PICOPs existing TLA would just be upgraded or modified, but
would be the very same agreement, hence, dodging the
inclusion in the word "renewing." However, PICOP is
conveniently leaving out the fact that its TLA expired in 2002. If
PICOP really intends to pursue the argument that the
conversion of the TLA into an IFMA would not create a new
agreement, but would only be a modification of the old one,
then it should be willing to concede that the IFMA expired as
well in 2002. An automatic modification would not alter the
terms and conditions of the TLA except when they are
inconsistent with the terms and conditions of an IFMA.
Consequently, PICOPs concession period under the renewed
TLA No. 43, which is from the year 1977 to 2002, would remain
the same.
PICOP cannot rely on a theory of the case whenever such
theory is beneficial to it, but refute the same whenever the
theory is damaging to it. In the same way, PICOP cannot claim
that the alleged Presidential Warranty is "renewable for other
25 years" and later on claim that what it is asking for is not a
renewal. Extensions of agreements must necessarily be
included in the term renewal. Otherwise, the inclusion of
"renewing" in Section 59 would be rendered inoperative.
PICOP further claims:
85. Verily, in interpreting the term "held under claim of
ownership," the Supreme Court could not have meant to
include claims that had just been filed and not yet recognized
under the provisions of DENR Administrative Order No. 2
Series of 1993, nor to any other community / ancestral domain
program prior to R.A. 8371.
xxxx
87. One can not imagine the terrible damage and chaos to the
country, its economy, its people and its future if a mere claim
filed for the issuance of a CADC or CADT will already provide
those who filed the application, the authority or right to stop the
renewal or issuance of any concession, license or lease or any
production-sharing agreement. The same interpretation will
give such applicants through a mere application the right to
stop or suspend any project that they can cite for not satisfying
the requirements of the consultation process of R.A. 8371. If
such interpretation gets enshrined in the statures of the land,
the unscrupulous and the extortionists can put any ongoing or
future project or activity to a stop in any part of the country
citing their right from having filed an application for issuance of
a CADC or CADT claim and the legal doctrine established by
the Supreme Court in this PICOP case.85

We are not sure whether PICOPs counsels are deliberately

trying to mislead us, or are just plainly ignorant of basic
precepts of law. The term "claim" in the phrase "claim of
ownership" is not a document of any sort. It is an attitude
towards something. The phrase "claim of ownership" means
"the possession of a piece of property with the intention of
claiming it in hostility to the true owner." 86 It is also defined as
"a partys manifest intention to take over land, regardless of
title or right."87 Other than in Republic Act No. 8371, the phrase
"claim of ownership" is thoroughly discussed in issues relating
to acquisitive prescription in Civil Law.
Before PICOPs counsels could attribute to us an assertion that
a mere attitude or intention would stop the renewal or issuance
of any concession, license or lease or any production-sharing
agreement, we should stress beforehand that this attitude or
intention must be clearly shown by overt acts and, as required
by Section 3(a), should have been in existence "since time
immemorial, continuously to the present except when
interrupted by war, force majeure or displacement by force,
deceit, stealth or as a consequence of government projects or
any other voluntary dealings entered into by government and
private individuals/corporations."
Another argument of PICOP involves the claim itself that there
was no overlapping:
Second, there could be no overlapping with any Ancestral
Domain as proven by the evidence presented and testimonies
rendered during the hearings in the Regional Trial Court. x x x.
x x x x.
88. The DENR issued a total of 73 CADCs as of December 11,
1996. The DENR Undersecretary for Field Operations had
recommended another 11 applications for issuance of CADCs.
None of the CADCs overlap the TLA 43 area.
89. However former DENR Secretary Alvarez, in a
memorandum dated 13 September, 2002 addressed to PGMA,
insisted that PICOP had to comply with the requirement to
secure a Free and Prior Informed Concent because CADC 095
was issued covering 17,112 hectares of TLA 43.
90. This CADC 095 is a fake CADC and was not validly
released by the DENR. While the Legal Department of the
DENR was still in the process of receiving the filings for
applicants and the oppositors to the CADC application, PICOP
came across filed copies of a CADC 095 with the PENRO of
Davao Oriental as part of their application for a Community
Based Forest Management Agreement (CBFMA). Further
research came across the same group filing copies of the
alleged CADC 095 with the Mines and Geosciences Bureau in
Davao City for a mining agreement application. The two
applications had two different versions of the CADCs second
page. One had Mr. Romeo T. Acosta signing as the Social
reform Agenda Technical Action Officer, while the other had
him signing as the Head, Community-Based Forest
Management Office. One had the word "Eight" crossed out and
"Seven" written to make it appear that the CADC was issued
on September 25, 1997, the other made it appear that there
were no alterations and the date was supposed to be originally
25 September 1997.

119

What is required in Section 59 of Republic Act No. 8379 is a

Certification from the NCIP that there was no overlapping with
any Ancestral Domain. PICOP cannot claim that the DENR
gravely abused its discretion for requiring this Certification, on
the ground that there was no overlapping. We reiterate that it is
manifestly absurd to claim that the subject lands must first be
proven to be part of ancestral domains before a certification
that they are not can be required. As discussed in the assailed
Decision, PICOP did not even seek any certification from the
NCIP that the area covered by TLA No. 43, subject of its IFMA
conversion, did not overlap with any ancestral domain.88
Sanggunian Consultation and Approval
While PICOP did not seek any certification from the NCIP that
the formers concession area did not overlap with any ancestral
domain, PICOP initially sought to comply with the requirement
under Sections 26 and 27 of the Local Government Code to
procure prior approval of the Sanggunians concerned.
However, only one of the many provinces affected approved
the issuance of an IFMA to PICOP. Undaunted, PICOP
nevertheless submitted to the DENR the purported resolution89
of the Province of Surigao del Sur indorsing the approval of
PICOPs application for IFMA conversion, apparently hoping
either that the disapproval of the other provinces would go
unnoticed, or that the Surigao del Sur approval would be
treated as sufficient compliance.
Surprisingly, the disapproval by the other provinces did go
unnoticed before the RTC and the Court of Appeals, despite
the repeated assertions thereof by the Solicitor General. When
we pointed out in the assailed Decision that the approval must
be by all the Sanggunians concerned and not by only one of
them, PICOP changed its theory of the case in its Motion for
Reconsideration, this time claiming that they are not required at
all to procure Sanggunian approval.
Sections 2(c), 26 and 27 of the Local Government Code
provide:
SEC. 2. x x x.
xxxx
(c) It is likewise the policy of the State to require all national
agencies and offices to conduct periodic consultations with
appropriate local government units, nongovernmental and
peoples organizations, and other concerned sectors of the
community before any project or program is implemented in
their respective jurisdictions.
SEC. 26. Duty of National Government Agencies in the
Maintenance of Ecological Balance. It shall be the duty of
every national agency or government-owned or controlled
corporation authorizing or involved in the planning and
implementation of any project or program that may cause
pollution, climatic change, depletion of non-renewable
resources, loss of crop land, rangeland, or forest cover, and
extinction of animal or plant species, to consult with the local
government units, nongovernmental organizations, and other
sectors concerned and explain the goals and objectives of the
project or program, its impact upon the people and the
community in terms of environmental or ecological balance,
and the measures that will be undertaken to prevent or
minimize the adverse effects thereof.

SEC. 27. Prior Consultations Required. No project or

program shall be implemented by government authorities
unless the consultations mentioned in Sections 2(c) and 26
hereof are complied with, and prior approval of the sanggunian
concerned is obtained: Provided, That occupants in areas
where such projects are to be implemented shall not be evicted
unless appropriate relocation sites have been provided, in
accordance with the provisions of the Constitution.
As stated in the assailed Decision, the common evidence of
the DENR Secretary and PICOP, namely, the 31 July 2001
Memorandum of Regional Executive Director (RED) Elias D.
Seraspi, Jr., enumerated the local government units and other
groups which had expressed their opposition to PICOPs
application for IFMA conversion:
7. During the conduct of the performance evaluation of TLA No.
43 issues complaints against PRI were submitted thru
Resolutions and letters. It is important that these are included
in this report for assessment of what are their worth, viz:
xxxx
7.2 Joint Resolution (unnumbered), dated March 19, 2001 of
the Barangay Council and Barangay Tribal Council of Simulao,
Boston, Davao Oriental (ANNEX F) opposing the conversion of
TLA No. 43 into IFMA over the 17,112 hectares allegedly
covered with CADC No. 095.
7.3 Resolution Nos. 10, s-2001 and 05, s-2001 (ANNEXES G
& H) of the Bunawan Tribal Council of Elders (BBMTCE)
strongly demanding none renewal of PICOP TLA. They claim
to be the rightful owner of the area it being their alleged
ancestral land.
7.4 Resolution No. 4, S-2001 of Sitio Linao, San Jose, Bislig
City (ANNEX I) requesting not to renew TLA 43 over the 900
hectares occupied by them.
7.5 Resolution No. 22, S-2001 (ANNEX J) of the Sanguniang
Bayan, Lingig, Surigao del Sur not to grant the conversion of
TLA 43 citing the plight of former employees of PRI who were
forced to enter and farm portion of TLA No. 43, after they were
laid off.
7.6 SP Resolution No. 2001-113 and CDC Resolution Nos. 092001 of the Sanguniang Panglungsod of Bislig City (ANNEXES
K & L) requesting to exclude the area of TLA No. 43 for
watershed purposes.
7.7 Resolution No. 2001-164, dated June 01, 2001 (ANNEX M)
Sanguniang Panglungsod of Bislig City opposing the
conversion of TLA 43 to IFMA for the reason that IFMA do not
give revenue benefits to the City.90
PICOP had claimed that it complied with the Local Government
Code requirement of obtaining prior approval of the
Sanggunian concerned by submitting a purported resolution91
of the Province of Surigao del Sur indorsing the approval of
PICOPs application for IFMA conversion. We ruled that this
cannot be deemed sufficient compliance with the foregoing
provision. Surigao del Sur is not the only province affected by
the area covered by the proposed IFMA. As even the Court of
Appeals found, PICOPs TLA No. 43 traverses the length and

120

breadth not only of Surigao del Sur but also of Agusan del Sur,
Compostela Valley and Davao Oriental.92
On Motion for Reconsideration, PICOP now argues that the
requirement under Sections 26 and 27 does not apply to it:
97. PICOP is not a national agency. Neither is PICOP
government owned or controlled. Thus Section 26 does not
apply to PICOP.
98. It is very clear that Section 27 refers to projects or
programs to be implemented by government authorities or
government-owned and controlled corporations. PICOPs
project or the automatic conversion is a purely private
endevour. First the PICOP project has been implemented since
1969. Second, the project was being implemented by private
investors and financial institutions.
99. The primary government participation is to warrant and
ensure that the PICOP project shall have peaceful tenure in the
permanent forest allocated to provide raw materials for the
project. To rule now that a project whose foundations were
commenced as early as 1969 shall now be subjected to a 1991
law is to apply the law retrospectively in violation of Article 4 of
the Civil Code that laws shall not be applied retroactively.
100. In addition, under DAO 30, Series of 1992, TLA and IFMA
operations were not among those devolved function from the
National Government / DENR to the local government unit.
Under its Section 03, the devolved function cover only:
a) Community Based forestry projects.
b) Communal forests of less than 5000 hectares
c) Small watershed areas which are sources of local
water supply.93
We have to remind PICOP again of the contents of Section 2,
Article XII of the Constitution:
Section 2. All lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, flora and fauna, and
other natural resources are owned by the State. With the
exception of agricultural lands, all other natural resources shall
not be alienated. The exploration, development, and utilization
of natural resources shall be under the full control and
supervision of the State. The State may directly undertake
such activities, or it may enter into co-production, joint venture,
or production-sharing agreements with Filipino citizens, or
corporations or associations at least sixty per centum of whose
capital is owned by such citizens. Such agreements may be for
a period not exceeding twenty-five years, renewable for not
more than twenty-five years, and under such terms and
conditions as may be provided by law. In cases of water rights
for irrigation, water supply, fisheries, or industrial uses other
than the development of water power, beneficial use may be
the measure and limit of the grant.
All projects relating to the exploration, development and
utilization of natural resources are projects of the State. While
the State may enter into co-production, joint venture, or
production-sharing agreements with Filipino citizens, or

corporations or associations at least sixty per centum of whose

capital is owned by these citizens, such as PICOP, the projects
nevertheless remain as State projects and can never be purely
private endeavors.
Also, despite entering into co-production, joint venture, or
production-sharing agreements, the State remains in full
control and supervision over such projects. PICOP, thus,
cannot limit government participation in the project to being
merely its bouncer, whose primary participation is only to
"warrant and ensure that the PICOP project shall have
peaceful tenure in the permanent forest allocated to provide
raw materials for the project."
PICOP is indeed neither a national agency nor a governmentowned or controlled corporation. The DENR, however, is a
national agency and is the national agency prohibited by
Section 27 from issuing an IFMA without the prior approval of
the Sanggunian concerned. As previously discussed, PICOPs
Petition for Mandamus can only be granted if the DENR
Secretary is required by law to issue an IFMA. We, however,
see here the exact opposite: the DENR Secretary was actually
prohibited by law from issuing an IFMA, as there had been no
prior approval by all the other Sanggunians concerned.
As regards PICOPs assertion that the application to them of a
1991 law is in violation of the prohibition against the nonretroactivity provision in Article 4 of the Civil Code, we have to
remind PICOP that it is applying for an IFMA with a term of
2002 to 2027. Section 2, Article XII of the Constitution allows
exploitation agreements to last only "for a period not exceeding
twenty-five years, renewable for not more than twenty-five
years." PICOP, thus, cannot legally claim that the projects term
started in 1952 and extends all the way to the present.
Finally, the devolution of the project to local government units
is not required before Sections 26 and 27 would be applicable.
Neither Section 26 nor 27 mentions such a requirement.
Moreover, it is not only the letter, but more importantly the spirit
of Sections 26 and 27, that shows that the devolution of the
project is not required. The approval of the Sanggunian
concerned is required by law, not because the local
government has control over such project, but because the
local government has the duty to protect its constituents and
their stake in the implementation of the project. Again, Section
26 states that it applies to projects that "may cause pollution,
climatic change, depletion of non-renewable resources, loss of
crop land, rangeland, or forest cover, and extinction of animal
or plant species." The local government should thus represent
the communities in such area, the very people who will be
affected by flooding, landslides or even climatic change if the
project is not properly regulated, and who likewise have a
stake in the resources in the area, and deserve to be
adequately compensated when these resources are exploited.
Indeed, it would be absurd to claim that the project must first
be devolved to the local government before the requirement of
the national government seeking approval from the local
government can be applied. If a project has been devolved to
the local government, the local government itself would be
implementing the project. That the local government would
need its own approval before implementing its own project is
patently silly.
EPILOGUE AND DISPOSITION

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PICOPc cause of action consists in the allegation that the

DENR Secretary, in not issuing an IFMA, violated its
constitutional right against non-impairment of contracts. We
have ruled, however, that the 1969 Document is not a contract
recognized under the non-impairment clause, much less a
contract specifically enjoining the DENR Secretary to issue the
IFMA. The conclusion that the 1969 Document is not a contract
recognized under the non-impairment clause has even been
disposed of in another case decided by another division of this
Court, PICOP Resources, Inc. v. Base Metals Mineral
Resources Corporation,94 the Decision in which case has
become final and executory. PICOPs Petition for Mandamus
should, therefore, fail.
Furthermore, even if we assume for the sake of argument that
the 1969 Document is a contract recognized under the nonimpairment clause, and even if we assume for the sake of
argument that the same is a contract specifically enjoining the
DENR Secretary to issue an IFMA, PICOPs Petition for
Mandamus must still fail. The 1969 Document expressly states
that the warranty as to the tenure of PICOP is "subject to
compliance with constitutional and statutory requirements as
well as with existing policy on timber concessions." Thus, if
PICOP proves the two above-mentioned matters, it still has to
prove compliance with statutory and administrative
requirements for the conversion of its TLA into an IFMA.
While we have withdrawn our pronouncements in the assailed
Decision that (1) PICOP had not submitted the required forest
protection and reforestation plans, and that (2) PICOP had
unpaid forestry charges, thus effectively ruling in favor of
PICOP on all factual issues in this case, PICOP still insists that
the requirements of an NCIP certification and Sanggunian
consultation and approval do not apply to it. To affirm PICOPs
position on these matters would entail nothing less than
rewriting the Indigenous Peoples Rights Act and the Local
Government Code, an act simply beyond our jurisdiction.
WHEREFORE, the Motion for Reconsideration of PICOP
Resources, Inc. is DENIED.
SO ORDERED.

G.R. No. 185379

November 27, 2009

PEOPLE
OF
THE
PHILIPPINES,
Appellee,
vs.
ZENAIDA QUEBRAL y MATEO, FERNANDO LOPEZ y
AMBUS and MICHAEL SALVADOR y JORNACION,
Appellants.
DECISION
ABAD, J.:
This case is about the requirement of authentication of seized
prohibited drugs and the conduct of warrantless search of a
suspect by the roadside based on probable cause.

The Facts and the Case

The provincial prosecutor of Bulacan charged the accused
Zenaida Quebral, Eusebio Quebral, Fernando Lopez, and
Michael Salvador before the Regional Trial Court (RTC) of
Malolos, Bulacan, in Criminal Case 3331-M-2002 with violation
of Section 5, Article II of Republic Act 9165 or the
Comprehensive Dangerous Drugs Act of 2002.
At the trial of this case, the prosecution presented PO3 Cecilio
Galvez of the police force of Balagtas, Bulacan, who testified
that at 7:00 p.m. on September 7, 2002, the Chief of the Drug
Enforcement Unit called him and other police officers to a
briefing regarding a police informers report that two men and a
woman on board an owner type jeep with a specific plate
number would deliver shabu, a prohibited drug, on the
following day at a Petron Gasoline Station in Balagtas to
Michael Salvador, a drug pusher in the police watch list.1
After a short briefing on the morning of September 8, 2002,
PO3 Galvez and six other police officers went to the North
Luzon Expressway Balagtas Exit at Burol 2nd, watching out for
the owner type jeep mentioned. They got there at around 7:45
a.m. Since the informer did not give the exact time of the
delivery of shabu, the police officers staked out the expressway
exit until late afternoon. At around 4:00 p.m., such a jeep,
bearing the reported plate number and with two men and a
woman on board, came out of the Balagtas Exit. Galvez
identified the two men as accused Eusebio Quebral, who drove
the jeep, and accused-appellant Fernando Lopez and the
woman as accused-appellant Zenaida Quebral. The police
trailed the jeep as it proceeded to the town proper of Balagtas
and entered a Petron gas station along the McArthur Highway.
After a few minutes, a Tamaraw FX arrived from which
accused- appellant Michael Salvador alighted. He walked
towards the jeep and talked to accused Zenaida Quebral, who
then handed a white envelope to him. On seeing this, PO3
Galvez, who was watching from about 15 meters in a tinted
car, signaled his back-up team to move. The police officers
alighted from their vehicles and surrounded the jeep. Galvez
took the envelope from Michael, opened it, and saw five plastic
sachets containing white crystalline substance which he
believed was shabu.
The Bulacan Provincial Crime Laboratory Office later examined
the substance and submitted a chemistry report,2 stating that it
was shabu or methylamphetamine hydrochloride, a prohibited
drug.
Appellants denied having committed the crime, claiming only
that PO3 Galvez and his fellow police officers merely framed
them up.
On March 18, 2004 the RTC found all four accused guilty of the
crime charged and sentenced them to suffer the penalty of life
imprisonment and to pay a fine of P5 million.
On May 20, 2005, while the Court of Appeals (CA) was
reviewing the case on appeal in CA-G.R. CR-HC 01997,
accused Eusebio Quebral died, prompting it to dismiss the
case against him. On February 13, 2008, the CA rendered
judgment,3 entirely affirming the decision of the RTC. The
remaining accused appealed to this Court.

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The Issues Presented

Appellants basically raise two issues for this Courts resolution:
1. Whether or not the CA erred in not excluding the
evidence of the seized shabu on the ground that,
having illegally arrested the accused, the police
officers subsequent search of their persons incident
to such arrest was also illegal; and
2. Whether or not the prosecution presented ample
proof of appellants guilt beyond reasonable doubt.
The Rulings of the Court
One. The accused claim that since the police did not have
valid ground to arrest them, their subsequent search of
them was illegal and the evidence of the seized shabu
cannot be admitted in evidence against them. With the
exclusion of the seized drugs, there would not be proof
that they were passing them.
The accused-appellants invoke the rule that a person may
be arrested even without a warrant only a) if he is caught
in the act of committing a crime, b) if he has just
committed a crime and the arresting officer pursued him,
or c) if he escaped from a legal confinement.4 But in the
first two instances, the officer must have personal
knowledge of the facts underlying the arrest. The target
persons observable acts must clearly spell a crime. If no
crime is evident from those acts, no valid arrest can be
made. An informant whispering to the police officers ear
that the person walking or standing on the street has
committed or is committing a crime will not do. The
arresting officer must himself perceive the manifestations
of a crime.5
The accused-appellants point out that in this case the
police officers cannot say that what they saw from a
distance constituted a crime. Two men and a woman
arrived on board a jeep at the gas station. A third man
approached the jeep, spoke to the woman and she handed
him a folded white envelope that appeared to contain
something. These acts do not constitute a crime per se.
Consequently, their arrest at this point was illegal. The
subsequent search of their persons, not being based on a
valid arrest, was itself illegal.
But, actually, it was more of a search preceding an arrest.
The police officers had information that two men and a
woman on board an owner type jeep would arrive in
Balagtas and hand over a consignment of shabu at a gas
station in town to a known drug dealer whose name was
on the police watch list. When these things unfolded
before their eyes as they watched from a distance, the
police came down on those persons and searched them,
resulting in the discovery and seizure of a quantity of
shabu in their possession. In such a case, the search is a
valid search justifying the arrest that came after it.
This Court held in People v. Bagista6 that the NARCOM
officers had probable cause to stop and search all
vehicles coming from the north at Acop, Tublay, Benguet,
in view of the confidential information they received from
their regular informant that a woman fitting the description

of the accused would be bringing marijuana from up north.

They likewise had probable cause to search her
belongings since she fitted the given description. In such
a case, the warrantless search was valid and,
consequently, any evidence obtained from it is admissible
against the accused.1avvphi1
As the lower court aptly put it in this case, the law
enforcers already had an inkling of the personal
circumstances of the persons they were looking for and
the criminal act they were about to commit. That these
circumstances played out in their presence supplied
probable cause for the search. The police acted on
reasonable ground of suspicion or belief supported by
circumstances sufficiently strong in themselves to warrant
a cautious man to believe that a crime has been committed
or is about to be committed. 7 Since the seized shabu
resulted from a valid search, it is admissible in evidence
against the accused.
It would have been impractical for the police to apply with
the appropriate court for a search warrant since their
suspicion found factual support only at the moment
accused Eusebio Quebral, Fernando Lopez, and Zenaida
Quebral rendezvoused with Michael Salvador at the Petron
gas station for the hand over of the drugs. An immediate
search was warranted since they would have gone away
by the time the police could apply for a search warrant. 8
The drugs could be easily transported and concealed with
impunity.9
The case of People v. Aminnudin10 cannot apply to this
case. In Aminnudin, the informant gave the police the
name and description of the person who would be coming
down from a ship the following day carrying a shipment of
drugs. In such a case, the Court held that the police had
ample time to seek a search warrant against the named
person so they could validly search his luggage. In the
present case, all the information the police had about the
persons in possession of the prohibited drugs was that
they were two men and a woman on board an owner type
jeep. A search warrant issued against such persons could
be used by the police to harass practically anyone.
Two. The accused-appellants point out that the testimony
of PO3 Galvez cannot support their conviction since it
does not bear the corroboration of the other officers
involved in the police operation against them. But the
failure of these other officers did not weaken the
prosecution evidence. The lone declaration of an
eyewitness is sufficient to convict if, as in this case, the
court finds the same credible. 11 Credibility goes into a
persons integrity, to the fact that he is worthy of belief, 12
and does not come with the number of witnesses.13
The accused-appellants also point out that, since the
chemist who examined the seized substance did not
testify in court, the prosecution was unable to establish
the indispensable element of corpus delicti. But this claim
is unmeritorious. This Court has held that the nonpresentation of the forensic chemist in illegal drug cases
is an insufficient cause for acquittal.14 The corpus delicti in
dangerous drugs cases constitutes the dangerous drug
itself. This means that proof beyond doubt of the identity
of the prohibited drug is essential.15

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Besides, corpus delicti has nothing to do with the

testimony of the laboratory analyst. In fact, this Court has
ruled that the report of an official forensic chemist
regarding a recovered prohibited drug enjoys the
presumption of regularity in its preparation. Corollarily,
under Section 44 of Rule 130, Revised Rules of Court,
entries in official records made in the performance of
official duty are prima facie evidence of the facts they
state.16 Therefore, the report of Forensic Chemical Officer
Sta. Maria that the five plastic sachets PO3 Galvez gave to
her for examination contained shabu is conclusive in the
absence of evidence proving the contrary. At any rate, as
the CA pointed out, the defense agreed during trial to
dispense with the testimony of the chemist and stipulated
on his findings.17

shabu solely to incriminate the accused who have not

been shown to be of good financial standing.27
WHEREFORE, the Court DENIES the appeal and AFFIRMS
the decision of the Court of Appeals dated February 13,
2008 and of the Regional Trial Court of Malolos dated
March 18, 2004.
SO ORDERED.

Parenthetically, the accused-appellants raised their

objection to the police chemists report only on appeal
when such objection should have been made when the
prosecution offered the same in evidence. They may, thus,
be considered to have waived their objection to such
report.18 The familiar rule in this jurisdiction is that the
inadmissibility of certain documents, if not urged before
the court below, cannot be raised for the first time on
appeal.191avvphi1
The accused-appellants take advantage of PO3 Galvezs
testimony that they conducted their operation on
September 2, 2002, the date that the informant gave them,
and that the following day was September 8, 200220 to
attack his credibility. But inconsistency is trivial and
appears to be a pure mistake. Lapses like this even
enhance the truthfulness of the testimony of a witness as
they erase any suspicion of a rehearsed declaration. 21
Besides, PO3 Galvez corrected this mistake on crossexamination. He said that their informant gave them his tip
at 7:00 p.m. of September 7, 2002.22
Finally, the accused-appellants contend that the
prosecution evidence failed to show compliance with the
requirements of law for handling evidence. But, as has
been held in a recent case, 23 failure to comply strictly with
those requirements will not render the seizure of the
prohibited drugs invalid for so long as the integrity and
evidentiary value of the confiscated items are properly
preserved by the apprehending officers. Besides, the
accused-appellants did not raise it before the trial court,
hence, they cannot raise it for the first time on appeal.24
The CA and the RTC gave credence to the testimony of
PO3 Galvez and this Court finds no reason for
disagreement. His narration was clear and candid. On the
other hand, the accused-appellants claim of a "frame-up"
was easy to concoct and so has been the common line of
defense in most cases involving violations of the
Dangerous Drugs Act.25 Such defense requires strong and
convincing evidence which the accused-appellants failed
to satisfy.
As the trial court correctly observed, the accusedappellants failed to provide any reason why of all the
people plying through the roads they had taken, the police
chose to frame them up for the crime. They also failed to
explain why the police would plant such huge amount of
shabu if a small quantity would be sufficient to send them
to jail.26 No arresting officer would plant such quantity of

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Entitlement to physical or material possession of the premises

is the issue in an ejectment suit. The two forms of ejectment
suits -- forcible entry and unlawful detainer -- may be
distinguished from each other mainly by the fact that in forcible
entry, the plaintiffs must prove that they were in prior
possession of the premises until they were deprived thereof by
the defendants; in unlawful detainer, the plaintiffs need not
have been in prior physical possession.
The Case
Before us is a Petition for Review1 under Rule 45 of the Rules
of Court, challenging the April 12, 2002 Decision 2 and the
August 19, 2002 Resolution3 of the Court of Appeals (CA) in
CA-GR SP No. 53524. The assailed Decision disposed as
follows:
"WHEREFORE, finding merit in the petition, the Court
REVERSES the appealed Decision and renders judgment:
1. Commanding [Petitioner] Louie Biraogo and all persons
acting for and in his behalf or by his authority to remove the
Habagat Grill and all improvements he has introduced into the
lot in question and to vacate said lot; and
2. Ordering said [petitioner] to pay the [respondent] P10,000.00
monthly compensation for the occupation of the land in
question until the possession from December 1, 1993 of said
property shall have been completely restored to the
[respondent]; and
3. Ordering [petitioner] to pay [respondent] P10,000.00 as
attorneys fees."4
The assailed Resolution denied petitioners Motion for
Reconsideration.
The Facts
The antecedents were ably summarized by the CA as follows:

G.R. No. 155110. March 31, 2005

HABAGAT
GRILL
Through
LOUIE
BIRAOGO,
Proprietor/Manager,
Petitioners,
vs.
DMC-URBAN PROPERTY DEVELOPER, INC., respondent.
DECISION
PANGANIBAN, J.:

"On June 11, 1981, David M. Consunji, Inc. acquired and

became the owner of a residential lot situated in Matina, Davao
City and covered by TCT No. T-82338. This lot shall henceforth
be called the lot in question. On June 13, 1981, David M.
Consunji, Inc. transferred said lot to its sister company, the
DMC Urban Property Developers, Inc. (DMC) in whose favor
TCT No. T-279042 was issued. Alleging that Louie Biraogo
forcibly entered said lot and built thereon the Habagat Grill in
December, 1993, DMC filed on March 28, 1994 a Complaint for
Forcible Entry against Habagat Grill and/or Louie Biraogo. The
Complaint was docketed as Civil Case No. 1233-D-94 in the
Municipal Trial Court in Cities, Branch 4, in Davao City. The
Complaint alleged that as owner DMC possessed the lot in
question from June 11, 1981 until December 1, 1993; that on
that day, December 1, 1993, Louie Biraogo, by means of
strategy and stealth, unlawfully entered into the lot in question
and constructed the Habagat Grill thereon, thus illegally
depriving DMC of the possession of said lot since then up to
the present; that the reasonable rental value of said lot is
P10,000.00 a month.
"Louie Biraogo in his Answer denied illegally entering the lot in
question. He averred that Habagat Grill was built in 1992 inside

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Municipal Reservation No. 1050 (Presidential Proclamation No.

20) and so DMC has no cause of action against him. Since one
of the vital issues in the case was the location of Habagat Grill,
the Municipal Trial Court in Cities constituted a team composed
of three members, one a Geodetic Engineer representing the
DMC, another Geodetic Engineer representing Biraogo and the
third from the DENR which was tasked with the duty of
determining where precisely was Habagat Grill located, on the
lot in question or on Municipal Reservation No. 1050. Biraogo
was directed by the court to furnish the team with a copy of
Municipal Reservation No. 20. Biraogo never complied. Worse,
his designated Geodetic Engineer Panfilo Jayme never took
oath as such and did not participate in the Relocation survey.
The ones who conducted the survey were Engr. Edmindo Dida
of the DENR and Engr. Jose Cordero, DMCs representative.
After conducting the relocation survey on March 30, 1998,
engineers Dida and Cordero submitted their report to the Court
specifically stating that the Habagat Grill Restaurant was
occupying 934 square meters of the lot in question.
"After necessary proceedings, the Municipal Trial Court in
Cities rendered a Decision on August 6, 1998 dismissing the
case on the ground of lack of jurisdiction and lack of cause of
action. DMC appealed from said Decision to the Regional Trial
Court and the same was docketed in Branch 12, in Davao City
as Civil Case No. x x x 26,860.98. On February 16, 1999, said
court rendered judgment affirming the appealed Decision. A
Motion for Reconsideration was filed but was denied in the
courts Order dated April 21, 1999."5

In its Memorandum, petitioner raises the following issues for

our consideration:
"1. That, with due respect, the Honorable Court of Appeals
erred in not finding that the Honorable Court of First Level has
no jurisdiction over this case as petitioners possession and
occupation of the lot where Habagat Grill was constructed on
the subject premises was yet in 1992 or for more than one (1)
year prior to the filing of this case on April 7, 1994 and that
respondents predecessor (David M. Consunji, Inc.) had not
been in prior and physical possession of the subject premises,
as a matter of fact, it failed to allege the same in its Complaint
in this case; and
"2. That, with due respect, the Honorable Court of Appeals
erred in not finding that the Complaint of respondents
predecessor (David M. Consunji, Inc.) in this case failed to
state a valid cause of action as the lot referred to therein is not
particularly described and is different from the lot on which the
Habagat Grill was constructed."13
Simplified, the issues are (1) whether the MTC had jurisdiction
over the case, and (2) whether respondent alleged a sufficient
cause of action in its Complaint.
This Courts Ruling
The Petition has no merit.

Consequently, respondent interposed an appeal to the CA.

First Issue:

Ruling of the Court of Appeals

Jurisdiction

Granting respondents appeal, the Court of Appeals ruled that

the court of origin had jurisdiction over the Complaint for
Forcible Entry.6 The CA gave greater weight to the testimony of
respondents real property manager, Bienamer Garcia, that
Habagat Grill had been built on December 1, 1993.7 The
appellate court opined that his testimony was credible,
because he had personal knowledge of the facts he had
testified to -- it was his task to know such matters. On the other
hand, it was not clear in what capacity petitioners witness,
Samuel Ruiz, came to know of the facts he had testified to. 8
The CA further held that the minutes of the Urban Planning and
Economic Development hearings -- submitted by petitioner to
prove the construction of Habagat Grill in 1992 -- were
immaterial, as these referred to another establishment.9

Petitioner argues that the lower court did not acquire

jurisdiction over the case, because mere allegation of
ownership did not, by itself, show that respondent had prior
possession of the property.14

The CA faulted petitioner for not presenting any other

documentary evidence to establish the date of Habagat Grills
construction.10 It added that the court of origin had improperly
adjudged the subject property as part of the public domain. The
appellate court explained that the lower court could take
cognizance of Presidential Proclamation No. 20, but not of the
situational relation between the property covered by the
Proclamation and the land in question. The CA further criticized
petitioner for not presenting any evidence to show the basis of
the latters alleged authority to build Habagat Grill on the
property.11
Hence, this Petition.12
The Issues

We disagree. Jurisdiction in ejectment cases is determined by

the allegations pleaded in the complaint.15 As long as these
allegations demonstrate a cause of action either for forcible
entry or for unlawful detainer, the court acquires jurisdiction
over the subject matter. This principle holds, even if the facts
proved during the trial do not support the cause of action thus
alleged, in which instance the court -- after acquiring
jurisdiction -- may resolve to dismiss the action for insufficiency
of evidence.
The necessary allegations in a Complaint for ejectment are set
forth in Section 1 of Rule 70 of the Rules of Court, which reads
thus:
SECTION 1. Who may institute proceedings, and when.
Subject to the provisions of the next succeeding section, a
person deprived of the possession of any land or building by
force, intimidation, threat, strategy, or stealth, or a lessor,
vendor, vendee, or other person against whom the possession
of any land or building is unlawfully withheld after the expiration
or termination of the right to hold possession, by virtue of any
contract, express or implied, or the legal representatives or
assigns of any such lessor, vendor, vendee, or other person,
may, at any time within one (1) year after such unlawful
deprivation or withholding of possession, bring an action in the
proper Municipal Trial Court against the person or persons

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unlawfully withholding or depriving of possession, or any

person or persons claiming under them, for the restitution of
such possession, together with damages and costs.
In the present case, the Complaint filed before the trial court on
March 28, 1994, stated:
"2. That [respondent] had been in lawful and peaceful
possession of a residential lot at Tulip Drive, Ecoland and
Subdivision covered by TCT T-82338 of the Registry of Deeds
of Davao City being owner thereof, since June 11, 1981, until
the day and incident in the following paragraph hereof.
"3. That on or about December 1, 1993, [petitioner] by means
of strategy and stealth, unlawfully entered and occupied a
portion of said residential lot and constructed what is now
known as the Habagat Grill, thereby illegally depriving
[respondent] of the possession of the premises."16
Notably, petitioner alleged (1) prior possession, (2) deprivation
thereof by strategy and stealth, and (3) the date such unlawful
deprivation started, which was less than one year from the
filing of the Complaint. Considering the presence in the
Complaint of all the necessary allegations,17 the trial court
evidently acquired jurisdiction over the subject matter of the
case.
Date of Entry
Petitioner further contends that, as determined by the court of
origin and the regional trial court, respondent has not adduced
preponderance of evidence to prove that this case was filed
within the one-year prescriptive period.18 Petitioner presented
the testimony of a certain Samuel Ruiz and offered the minutes
of the hearings conducted by the Urban Planning and
Economic Development (UPED) to prove that the construction
of the Habagat Grill began in 1992.19
Respondent counters that the CA properly relied on the
testimony of the formers real property manager, Bienamer
Garcia, as he had personal knowledge of the facts. 20 On the
other hand, the two trial courts allegedly relied on the hearings
conducted by the UPED in resolving that petitioner had been in
possession of the property since 1992. Respondent avers that
those hearings referred to a restaurant located 330 meters
away, not to Habagat Grill.21
The determination of the date of entry into the subject lot is a
question of fact. This Court has held in a long line of cases that
the review of cases brought before it via Rule 45 of the Rules
of Court is limited to errors of law. Findings of fact by the CA
are conclusive except in a number of instances, one of which is
when its factual findings are contrary to those of the courts
below, as in the present case.22
The appellate court held that the minutes of the UPED hearing
pertained to matters relating to a different establishment, the
Kawayan Restaurant.23 Thus, the UPED minutes did not have
any material bearing on the resolution of the present case.
Consequently, the determination of the date of entry into the
subject lot boils down to the appreciation of the testimonies of
Garcia and Ruiz.

"Preponderance of evidence" means that the evidence

adduced by one side is, as a whole, superior to or has greater
weight than that of the other.24 Where the evidence presented
by one side is insufficient to ascertain the claim, there is no
preponderance of evidence.25 In criminal cases in which the
quantum of evidence required is greater than in civil cases, the
testimony of only one witness -- if credible, straightforward, and
worthy of belief -- is sufficient to convict.26 With more reason
then, Garcias testimony, if clear and positive, may be sufficient
to establish respondents claim.
Under Section 1 of Rule 133 of the Rules of Court, among the
facts and circumstances to be considered by the court in
determining which of the presented evidence has superior
weight is the witnesses means and opportunity to know the
facts to which they testify.27
The extent of such means and opportunity are determined by
the following considerations:
"First, the Actor Rule. This rule maintains that a persons
recollection of his own acts and of the attendant circumstances
is more definite and trustworthy than another persons
recollection of it, especially if it was an act done in the
performance of a duty, or if the other persons testimony is little
more than an expression of opinion or judgment. Apart from
comparative tenacity of memory, the actor usually knows better
than any one else what he did or did not do, and his testimony
is generally, but not always, entitled to superior weight on that
account. Thus, the execution and attestation of a will or other
legal document may be so far regarded as the act of the lawyer
who superintends the transactions and knows the formalities
required by law, and his testimony to the circumstances will
generally outweigh that of a non-professional witness.
"The Actor Rule has been applied in a multitude of admiralty
cases and any other cases where a persons testimony
concerning his own conduct conflicts with the testimony of a
non-participating observer or with inconclusive inferences from
facts proved, especially where the actor witness testifies to an
act which the duties of his employment required him to
perform. But it said that the testimony of one who evidently
speaks rather to his custom than to his acts on the particular
occasion will hardly suffice to put him in the category of those
who are specially favored by the Actor Rule.
"Second, the witness who had the greater interest in noticing
and remembering the facts is to be believed in preference to
the one that had a slighter interest to observe or was wholly
indifferent. Interest has effect on the power of observation of
witness. Thus, it has been held that it was not remarkable that
witnesses would not have observed traces of blood along the
route through which the deceased was taken because said
witnesses had no reason to suspect that the crime was not
committed in the place where the dead body was found.
Similarly, the failure of witnesses to notice whether or not there
were houses at the place where they say the accused maltreat
the offended party was attributed as due to the fact that their
attention was concentrated to what they say, and they had no
interest in knowing whether or not there were houses in or
around the place.
"Third, the witness who gives reasons for the accuracy of his
observations is preferred to him who merely states the fact to
be so, without adverting to any circumstances showing that his
attention was particularly called to it. Thus, the testimony of the

127

crew of a vessel that their light on the night of a collision was

red, and nothing more, was easily overcome by testimony of
witnesses on the other vessel that the light was white, not red,
and that fact was a matter of remark among them when the
light was observed.
"Fourth, the witness in a state of excitement, fear, or terror is
generally incapable of observing accurately. This is so
because, if men perceive the most insignificant facts in the
most diverse ways, even when it is impossible that these facts
should produce on the observer any emotion preventing him
from observing with absolute calm, even much more will their
impressions be diversified under circumstances calculated to
produce in the onlookers excitement, fear or terror.
"Fifth, intoxication tends to impair accuracy both of observation
and memory of a witness."28 (Citations omitted)
Based on the foregoing criteria, the testimony of Garcia must
be given greater weight, considering that it was his task -- as
the real property manager of respondent -- to know about
matters involving the latters properties. In contrast, it was not
explained how Ruiz could be deemed competent and credible
in his testimony as to those matters.
The lower courts dismissed the testimony of Garcia -regardless of how clear, positive and straightforward it was -solely on the ground that he was not a disinterested witness.
True, he was an employee of respondent; relationship,
however, will not by itself determine the true worth of ones
testimony.29 The essential test is whether such testimony is
disencumbered, credible, and in accord with human
experience.30 It cannot easily be dismissed by the mere
invocation of the witness relationship with respondent. In sum,
we have no reason to disagree with the CAs evaluation that,
being credible, Garcias direct testimony was sufficient to
establish respondents claim that petitioner had entered the
premises on December 1, 1993.
Second Issue:
Cause of Action
Petitioner avers that no cause of action was alleged by
respondent, as shown by the following circumstances: (1) the
latters property was not encroached upon by Habagat Grill,
which had allegedly been constructed on a portion of land
owned by the City Government of Davao;31 and (2) respondent
failed to prove that its predecessor-in-interest had prior
possession of the property.32
On the other hand, respondent argues that the trial court
indiscriminately ignored the Report of the survey team that had
been constituted to determine the exact location of Habagat
Grill. Respondent further contends that the trial court erred in
taking judicial notice of the metes and bounds of the property
covered by Presidential Proclamation No. 20. 33 Although the
lower court may take judicial notice of PD No. 20, it may not do
so in regard to the metes and bounds of Times Beach. Neither,
may it claim knowledge of the situational relation between the
land in question and Times Beach.
Location of the Property

We agree with respondent. "Judicial notice is the cognizance of

certain facts which judges may properly take and act on
without proof because they already know them."34 Its object is
to save time, labor and expense in securing and introducing
evidence on matters that are not ordinarily capable of dispute
or actually bona fide disputed, and the tenor of which can
safely be assumed from the tribunals general knowledge or
from a slight search on its part.
Indeed, municipal courts may take judicial notice of the
municipal ordinances in force in the municipality in which they
sit.35 Such notice, however, is limited to what the law is and
what it states.36 As can be gleaned from its discussions, the
trial court took judicial notice of the existence of Presidential
Proclamation No. 20, which declared Times Beach a recreation
center. The MTC also took judicial notice of the location of the
beach, which was from the shoreline to the "road towards the
shoreline." On the basis of these premises, the trial court
resolved that the lot on which petitioners restaurant was
located should necessarily be inside Times Beach, which was
owned by the City of Davao. Hence, it was the City -- not
respondent -- that had a cause of action against petitioner. To
arrive at this conclusion, the MTC made its own estimate of the
location of the metes and bounds of the property mentioned by
the law.37
The location of Habagat Grill cannot be resolved by merely
taking judicial notice of Presidential Proclamation No. 20; such
location is precisely at the core of the dispute in this case.
Moreover, considering respondents allegation that the
supposed lot covered by the Ordinance has been lost due to
inundation by the sea, we cannot fathom how the trial court
could have known of the actual location of the metes and
bounds of the subject lot.
Neither may the MTC take discretionary judicial notice under
Section 2 of Rule 129 of the Rules of Court, because the exact
boundaries of the lot covered by that law are not a matter of
public knowledge capable of unquestionable demonstration.
Neither may these be known to judges because of their judicial
functions.
Hence, the CA was correct in disregarding the findings of the
trial courts, because they had erred in taking judicial notice of
the exact metes and bounds of the property. The appellate
court aptly relied on the Report submitted by the survey team
that had been constituted by the trial court, precisely for the
purpose of determining the location of Habagat Grill in relation
to respondents lot.
Prior Possession
Finally, petitioner avers that respondent failed to prove that the
latters predecessor-in-interest had prior possession of the
property.38 Conversely, respondent alleges that its predecessor
was in prior physical possession of the property as the
registered owner thereof since June 11, 1981.39 Again, we rule
for respondent.
There is only one issue in ejectment proceedings: who is
entitled to physical or material possession of the premises; that
is, to possession de facto, not possession de jure? Issues as to
the right of possession or ownership are not involved in the
action; evidence thereon is not admissible, except only for the
purpose of determining the issue of possession.40

128

The two forms of ejectment suits -- forcible entry or unlawful

detainer -- may be distinguished from each other mainly by the
fact that in forcible entry, the plaintiffs must prove that they
were in prior possession of the premises until they were
deprived thereof by the defendant; in unlawful detainer, the
plaintiff need not have been in prior physical possession.41
Spouses Benitez v. CA42 has held that possession can be
acquired not only by material occupation, but also by the fact
that a thing is subject to the action of ones will or by the proper
acts and legal formalities established for acquiring such right.
Possession can be acquired by juridical acts. "These are acts
to which the law gives the force of acts of possession.
Examples of these are donations, succession, x x x execution
and registration of public instruments, and the inscription of
possessory information titles."43 For one to be considered in
possession, one need not have actual or physical occupation 44
of every square inch of the property at all times. In the present
case, prior possession of the lot by respondents predecessor
was sufficiently proven by evidence of the execution and
registration of public instruments and by the fact that the lot
was subject to its will from then until December 1, 1993, when
petitioner unlawfully entered the premises and deprived the
former of possession thereof.
WHEREFORE, the Petition is DENIED and the challenged
Decision and Resolution AFFIRMED. Costs against petitioner.
SO ORDERED.

LEA
MER
INDUSTRIES,
INC.,
Petitioners,
vs.
MALAYAN INSURANCE CO., INC.,* Respondent.
DECISION
PANGANIBAN, J.:
ommon carriers are bound to observe extraordinary diligence
in their vigilance over the goods entrusted to them, as required
by the nature of their business and for reasons of public policy.
Consequently, the law presumes that common carriers are at
fault or negligent for any loss or damage to the goods that they
transport. In the present case, the evidence submitted by
petitioner to overcome this presumption was sorely insufficient.
The Case
Before us is a Petition for Review1 under Rule 45 of the Rules
of Court, assailing the October 9, 2002 Decision2 and the
December 29, 2003 Resolution3 of the Court of Appeals (CA) in
CA-GR CV No. 66028. The challenged Decision disposed as
follows:
"WHEREFORE, the appeal is GRANTED. The December 7,
1999 decision of the Regional Trial Court of Manila, Branch 42
in Civil Case No. 92-63159 is hereby REVERSED and SET
ASIDE. [Petitioner] is ordered to pay the [herein respondent]
the value of the lost cargo in the amount of P565,000.00. Costs
against the [herein petitioner]."4
The assailed Resolution denied reconsideration.
The Facts
Ilian Silica Mining entered into a contract of carriage with Lea
Mer Industries, Inc., for the shipment of 900 metric tons of
silica sand valued at P565,000.5 Consigned to Vulcan Industrial
and Mining Corporation, the cargo was to be transported from
Palawan to Manila. On October 25, 1991, the silica sand was
placed on board Judy VII, a barge leased by Lea Mer.6 During
the voyage, the vessel sank, resulting in the loss of the cargo.7
Malayan Insurance Co., Inc., as insurer, paid Vulcan the value
of the lost cargo.8 To recover the amount paid and in the
exercise of its right of subrogation, Malayan demanded
reimbursement from Lea Mer, which refused to comply.
Consequently, Malayan instituted a Complaint with the
Regional Trial Court (RTC) of Manila on September 4, 1992,
for the collection of P565,000 representing the amount that
respondent had paid Vulcan.9
On October 7, 1999, the trial court dismissed the Complaint,
upon finding that the cause of the loss was a fortuitous event.10
The RTC noted that the vessel had sunk because of the bad
weather condition brought about by Typhoon Trining. The court
ruled that petitioner had no advance knowledge of the
incoming typhoon, and that the vessel had been cleared by the
Philippine Coast Guard to travel from Palawan to Manila.11
Ruling of the Court of Appeals

G.R. No. 161745 September 30, 2005

129

Reversing the trial court, the CA held that the vessel was not
seaworthy when it sailed for Manila. Thus, the loss of the cargo
was occasioned by petitioners fault, not by a fortuitous event.12
Hence, this recourse.13
The Issues
Petitioner states the issues in this wise:
"A. Whether or not the survey report of the cargo surveyor,
Jesus Cortez, who had not been presented as a witness of the
said report during the trial of this case before the lower court
can be admitted in evidence to prove the alleged facts cited in
the said report.
"B. Whether or not the respondent, Court of Appeals, had
validly or legally reversed the finding of fact of the Regional
Trial Court which clearly and unequivocally held that the loss of
the cargo subject of this case was caused by fortuitous event
for which herein petitioner could not be held liable.
"C. Whether or not the respondent, Court of Appeals, had
committed serious error and grave abuse of discretion in
disregarding the testimony of the witness from the MARINA,
Engr. Jacinto Lazo y Villegal, to the effect that the vessel Judy
VII was seaworthy at the time of incident and further in
disregarding the testimony of the PAG-ASA weather specialist,
Ms. Rosa Barba y Saliente, to the effect that typhoon Trining
did not hit Metro Manila or Palawan."14

Common carriers are persons, corporations, firms or

associations engaged in the business of carrying or
transporting passengers or goods, or both -- by land, water, or
air -- when this service is offered to the public for
compensation.17 Petitioner is clearly a common carrier,
because it offers to the public its business of transporting
goods through its vessels.18
Thus, the Court corrects the trial courts finding that petitioner
became a private carrier when Vulcan chartered it. 19 Charter
parties are classified as contracts of demise (or bareboat) and
affreightment, which are distinguished as follows:
"Under the demise or bareboat charter of the vessel, the
charterer will generally be considered as owner for the voyage
or service stipulated. The charterer mans the vessel with his
own people and becomes, in effect, the owner pro hac vice,
subject to liability to others for damages caused by negligence.
To create a demise, the owner of a vessel must completely and
exclusively relinquish possession, command and navigation
thereof to the charterer; anything short of such a complete
transfer is a contract of affreightment (time or voyage charter
party) or not a charter party at all."20
The distinction is significant, because a demise or bareboat
charter indicates a business undertaking that is private in
character. 21 Consequently, the rights and obligations of the
parties to a contract of private carriage are governed principally
by their stipulations, not by the law on common carriers.22

In the main, the issues are as follows: (1) whether petitioner is

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

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

shown by the fact that it was petitioners crew that manned the
tugboat M/V Ayalit and controlled the barge Judy VII.23
Necessarily, petitioner was a common carrier, and the pertinent
law governs the present factual circumstances.

The Courts Ruling

Extraordinary Diligence Required

The Petition has no merit.

Common carriers are bound to observe extraordinary diligence

in their vigilance over the goods and the safety of the
passengers they transport, as required by the nature of their
business and for reasons of public policy.24 Extraordinary
diligence requires rendering service with the greatest skill and
foresight to avoid damage and destruction to the goods
entrusted for carriage and delivery.25

First Issue:
Liability for Loss of Cargo
Question of Fact
The resolution of the present case hinges on whether the loss
of the cargo was due to a fortuitous event. This issue involves
primarily a question of fact, notwithstanding petitioners claim
that it pertains only to a question of law. As a general rule,
questions of fact may not be raised in a petition for review.15
The present case serves as an exception to this rule, because
the factual findings of the appellate and the trial courts vary.16
This Court meticulously reviewed the records, but found no
reason to reverse the CA.
Rule on Common Carriers

Common carriers are presumed to have been at fault or to

have acted negligently for loss or damage to the goods that
they have transported.26 This presumption can be rebutted only
by proof that they observed extraordinary diligence, or that the
loss or damage was occasioned by any of the following
causes:27
"(1) Flood, storm, earthquake, lightning, or other natural
disaster or calamity;
"(2) Act of the public enemy in war, whether international or
civil;
"(3) Act or omission of the shipper or owner of the goods;
"(4) The character of the goods or defects in the packing or in
the containers;

130

"(5) Order or act of competent public authority."28

Rule on Fortuitous Events
Article 1174 of the Civil Code provides that "no person shall be
responsible for a fortuitous event which could not be foreseen,
or which, though foreseen, was inevitable." Thus, if the loss or
damage was due to such an event, a common carrier is
exempted from liability.
Jurisprudence defines the elements of a "fortuitous event" as
follows: (a) the cause of the unforeseen and unexpected
occurrence, or the failure of the debtors to comply with their
obligations, must have been independent of human will; (b) the
event that constituted the caso fortuito must have been
impossible to foresee or, if foreseeable, impossible to avoid; (c)
the occurrence must have been such as to render it impossible
for the debtors to fulfill their obligation in a normal manner; and
(d) the obligor must have been free from any participation in
the aggravation of the resulting injury to the creditor.29
To excuse the common carrier fully of any liability, the fortuitous
event must have been the proximate and only cause of the
loss.30 Moreover, it should have exercised due diligence to
prevent or minimize the loss before, during and after the
occurrence of the fortuitous event.31
Loss in the Instant Case
There is no controversy regarding the loss of the cargo in the
present case. As the common carrier, petitioner bore the
burden of proving that it had exercised extraordinary diligence
to avoid the loss, or that the loss had been occasioned by a
fortuitous event -- an exempting circumstance.
It was precisely this circumstance that petitioner cited to
escape liability. Lea Mer claimed that the loss of the cargo was
due to the bad weather condition brought about by Typhoon
Trining.32 Evidence was presented to show that petitioner had
not been informed of the incoming typhoon, and that the
Philippine Coast Guard had given it clearance to begin the
voyage.33 On October 25, 1991, the date on which the voyage
commenced and the barge sank, Typhoon Trining was
allegedly far from Palawan, where the storm warning was only
"Signal No. 1."34
The evidence presented by petitioner in support of its defense
of fortuitous event was sorely insufficient. As required by the
pertinent law, it was not enough for the common carrier to
show that there was an unforeseen or unexpected occurrence.
It had to show that it was free from any fault -- a fact it
miserably failed to prove.
First, petitioner presented no evidence that it had attempted to
minimize or prevent the loss before, during or after the alleged
fortuitous event.35 Its witness, Joey A. Draper, testified that he
could no longer remember whether anything had been done to
minimize loss when water started entering the barge.36 This
fact was confirmed during his cross-examination, as shown by
the following brief exchange:
"Atty. Baldovino, Jr.:

Other than be[a]ching the barge Judy VII, were there other
precautionary measure[s] exercised by you and the crew of
Judy VII so as to prevent the los[s] or sinking of barge Judy
VII?
xxxxxxxxx
Atty. Baldovino, Jr.:
Your Honor, what I am asking [relates to the] action taken by
the officers and crew of tugboat Ayalit and barge Judy VII x x x
to prevent the sinking of barge Judy VII?
xxxxxxxxx
Court:
Mr. witness, did the captain of that tugboat give any instruction
on how to save the barge Judy VII?
Joey Draper:
I can no longer remember sir, because that happened [a] long
time ago."37
Second, the alleged fortuitous event was not the sole and
proximate cause of the loss. There is a preponderance of
evidence that the barge was not seaworthy when it sailed for
Manila.38 Respondent was able to prove that, in the hull of the
barge, there were holes that might have caused or aggravated
the sinking.39 Because the presumption of negligence or fault
applied to petitioner, it was incumbent upon it to show that
there were no holes; or, if there were, that they did not
aggravate the sinking.
Petitioner offered no evidence to rebut the existence of the
holes. Its witness, Domingo A. Luna, testified that the barge
was in "tip-top" or excellent condition, 40 but that he had not
personally inspected it when it left Palawan.41
The submission of the Philippine Coast Guards Certificate of
Inspection of Judy VII, dated July 31, 1991, did not
conclusively prove that the barge was seaworthy.42 The
regularity of the issuance of the Certificate is disputably
presumed.43 It could be contradicted by competent evidence,
which respondent offered. Moreover, this evidence did not
necessarily take into account the actual condition of
the vessel at the time of the commencement of the voyage.44
Second Issue:
Admissibility of the Survey Report
Petitioner claims that the Survey Report45 prepared by Jesus
Cortez, the cargo surveyor, should not have been admitted in
evidence. The Court partly agrees. Because he did not testify
during the trial,46 then the Report that he had prepared was
hearsay and therefore inadmissible for the purpose of proving
the truth of its contents.
The Survey Report Not the Sole Evidence

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The facts reveal that Cortezs Survey Report was used in the
testimonies of respondents witnesses -- Charlie M. Soriano;
and Federico S. Manlapig, a cargo marine surveyor and the
vice-president of Toplis and Harding Company.47 Soriano
testified that the Survey Report had been used in preparing the
final Adjustment Report conducted by their company.48 The
final Report showed that the barge was not seaworthy because
of the existence of the holes. Manlapig testified that he had
prepared that Report after taking into account the findings of
the surveyor, as well as the pictures and the sketches of the
place where the sinking occurred.49 Evidently, the existence of
the holes was proved by the testimonies of the witnesses, not
merely by Cortez Survey Report.
Rule on Independently
Relevant Statement

G.R. No. 177147

(Formerly G.R. No. 147313)

November 28, 2007

THE PEOPLE OF THE PHILIPPINES, Appellee,

vs.
JOEMARIE CERILLA, VELASCO, JR., Appellant.

That witnesses must be examined and presented during the

trial,50 and that their testimonies must be confined to personal
knowledge is required by the rules on evidence, from which we
quote:

DECISION

"Section 36. Testimony generally confined to personal

knowledge; hearsay excluded. A witness can testify only to
those facts which he knows of his personal knowledge; that is,
which are derived from his own perception, except as
otherwise provided in these rules."51

For automatic review is the Decision1 of the Court of Appeals 2

dated 26 October 2006 in CA-G.R. CR-HC No. 00032 which
affirmed with modification the Decision3 of the Regional Trial
Court (RTC) of Iloilo City, Branch 23 dated 15 August 2000 in
Criminal Case No. 496502 finding appellant Joemarie Cerilla
guilty beyond reasonable doubt of the crime of murder and
sentencing him to suffer the penalty of reclusion perpetua.

On this basis, the trial court correctly refused to admit Jesus

Cortezs Affidavit, which respondent had offered as evidence.52
Well-settled is the rule that, unless the affiant is presented as a
witness, an affidavit is considered hearsay.53
An exception to the foregoing rule is that on "independently
relevant statements." A report made by a person is admissible
if it is intended to prove the tenor, not the truth, of the
statements.54 Independent of the truth or the falsity of the
statement given in the report, the fact that it has been made is
relevant. Here, the hearsay rule does not apply.55
In the instant case, the challenged Survey Report prepared by
Cortez was admitted only as part of the testimonies of
respondents witnesses. The referral to Cortezs Report was in
relation to Manlapigs final Adjustment Report. Evidently, it was
the existence of the Survey Report that was testified to. The
admissibility of that Report as part of the testimonies of the
witnesses was correctly ruled upon by the trial court.
At any rate, even without the Survey Report, petitioner has
already failed to overcome the presumption of fault that applies
to common carriers.
WHEREFORE, the Petition is DENIED and the assailed
Decision and Resolution are AFFIRMED. Costs against
petitioner.
SO ORDERED.

TINGA, J.:

On 6 July 1998, an Information was filed against appellant

charging him of the crime of murder committed as follows:
That on or about April 24, 1998, in the Municipality of Leganes,
Province of Iloilo, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, armed with a
firearm with deliberate intent and decided purpose to kill and by
means of treachery, did then and there willfully, unlawfully and
feloniously shoot Alexander Parreo with the firearm which the
accused was then provided, hitting and inflicting pellet wound
at the right back portion of his body which caused his death.
CONTRARY TO LAW.4
The prosecutions evidence shows that at around 6:00 pm on
24 April 1998, the victim, Alexander Parreo (Alexander), his
14-year old daughter, Michelle, and neighbor, Phoebe Sendin
(Sendin), went to the house of appellant. They were cordially
welcomed and entertained by appellant and his wife. 5 An hour
later, a blackout occurred. At this time, Alexander sought
permission from the couple to leave, which the latter
acknowledged.6 On their way home, Michelle was walking
ahead of Alexander with the latter closely following his
daughter. Suddenly, after walking for about 100 meters
from appellants house, Michelle heard an explosion. Michelle
immediately turned her back and saw appellant pointing a gun
at Alexander who, at that moment, was staggering towards
her.7 Sendin, who was also with Alexander and Michelle, did
not look back but instead ran away and proceeded to the
house of Mrs. Parreo.8 Meanwhile, Michelle was cuddling
Alexander beside the road when the latter repeatedly told her
that it was appellant who shot him.9 Twenty minutes later,
Alexanders other daughter, Novie Mae, arrived; she was also

132

told by Alexander at that moment that it was appellant who shot

him.10
SPO3 Frederick Dequito (SPO3 Dequito) and other police
officers rushed to the crime scene and helped carry Alexander
to an ambulance. SPO3 Dequito was able to ask Alexander
who shot him to which he answered "Pato." "Pato" is an alias
by which appellant is known.11

Alexander Parreo, the sum of P257,774.75 by way of actual

damages; the amount of P30,000.00 by way of moral damages
and the sum of P50,000.00 by way of death compensation.
The accused who is detained is entitled to be credited in full
with the entire period of his preventive detention. The Jail
Warden, Iloilo Rehabilitation Center is ordered to remit the said
accused to the National Penitentiary at the earliest opportunity.
SO ORDERED.21

Alexanders wife, Susan, who rushed to the hospital was also

told by Alexander that it was appellant who shot him.12
Alexander died the following day.13
Dr. Tito D. Doromal, Philippine National Police medico-legal
officer, performed an autopsy on the body of Alexander. The
autopsy report stated the cause of death to be hemorrhage
secondary to pellet wounds.14 Testifying on his report, Dr.
Doromal explained that Alexander died from a gunshot wound
which penetrated the ribs and lacerated the right lobe of the
liver, colon, stomach, duodenum, and right kidney. The
entrance wound was located at the middle-back portion of the
body. Seven (7) pellets were recovered on the muscle of the
upper and middle abdominal wall.15
The defenses evidence consists of the testimonies of appellant
himself and of his wife, Madoline, his stepdaughter, Franlin,
PO1 Manolito Javelora, PO3 Alberto Sarmiento, and PO3
Wilson Allona. Appellant interposed alibi as his main defense.
He claimed that Alexander, together with his daughter and
Sendin, had gone to his house on 24 April 1998 at around 6:00
p.m. where they were welcomed and offered snacks.16 They
were having a conversation when a blackout occurred.
Alexander then asked permission to leave. After the visitors
had left, appellant ordered his stepdaughter Franlin to buy
candle at the store across their house. Appellant and Madoline
posted themselves at their doorway holding a flashlight to light
Franlins path. Upon Franlins return to the house, appellant
heard an explosion and he immediately closed the door. Later,
the policemen
went to his house and told him that he was a suspect in the
shooting of Alexander and was then brought to the police
station.17 The following day, he was subjected to paraffin test
the result of which turned out to be negative.18
Appellants testimony was corroborated by Madoline and
Franlin. PO1 Javelora declared that when he asked Alexander
who shot him, the latter did not answer.19 Likewise, PO3
Sarmiento and Allona stated that when they went to the
hospital to interrogate Alexander, the latter could not give a
definite answer as to who shot him.20
On 15 August 2000, the RTC found appellant guilty beyond
reasonable doubt of murder and sentenced him to suffer the
penalty of reclusion perpetua. The dispositive portion of the
decision read:
WHEREFORE, premises considered, and in the light of the
facts obtaining and the jurisprudence aforecited, judgement is
hereby rendered finding the accused GUILTY beyond
reasonable doubt of the crime of MURDER, hereby sentencing
the said accused to the penalty of RECLUSION PERPETUA
pursuant to Sec. 6 of Republic Act No. 7659[,] amending Article
248 of the Revised Penal Code. The said accused is further
condemned to indemnify the surviving heirs of the deceased,

The trial court regarded the victims dying declaration as the

most telling evidence pointing to appellant as the assailant. 22 It
appreciated the presence of treachery in qualifying the crime to
murder because the victim was unarmed and walking on his
way
home when he was suddenly and unexpectedly shot from
behind by appellant.23 The trial court ruled that appellants alibi
and denial could not prevail over the positive testimonies of
credible witnesses.24 Moreover, it observed that appellant was
not able to prove the impossibility of his presence at the crime
scene which could have proven his alibi.25
In view of the penalty of reclusion perpetua imposed on
appellant, the case was initially elevated to this Court for
review. However, pursuant to our ruling in People v. Mateo, 26
the case was referred to the Court of Appeals.
The appellate court affirmed the trial courts ruling but modified
the award of moral damages from Thirty Thousand Pesos to
Fifty Thousand Pesos.27 Hence, the instant appeal.
In a Resolution dated 16 July 2007, the Court required the
parties to simultaneously submit their respective supplemental
briefs if they so desired.28 Both parties manifested that they
would adopt their briefs filed before the appellate court.29
Thereafter, the case was deemed submitted for decision.
Appellant argues that the trial court erred in giving full credence
to the testimony of the prosecution's eyewitness, Michelle, as
well as the dying declaration of Alexander considering that the
circumstances under which the crime was committed rendered
the identification of the gunman impossible.
This argument essentially challenges the credibility of the
witnesses, including the eyewitness, whose testimonies were
relied upon by the trial court in convicting appellant. Basic is
the principle that the findings of fact of a trial court, its
calibration of the testimonies of the witnesses and its
assessment of the probative weight thereof, as well as its
conclusions anchored on said findings are accorded high
respect, if not conclusive effect. This is because the
trial court has the unique opportunity to observe the demeanor
of a witness and is in the best position to discern whether they
are telling the truth. This rule holds true especially when the
trial court's findings have been affirmed by the appellate
court.30
Appellants authorship of the crime was proven by the positive
identification of an eyewitness and the victims dying
declaration.

133

The prosecution presented Michelle, who categorically

identified appellant as the one who shot Alexander, viz:
Q: While you and your father were walking towards
home, did you remember anything unusual that
happened?
A: Yes, Maam.
Q: What was that?
A: I heard an explosion.
Q: Where were you in relation to your father when you
heard that shot?
A: I was in front of my Daddy and he was at my back.
Q: You said you heard a shot, what did you do when
you heard a shot?
A: When I heard the shot, I turned back and I saw
Joemarie pointing to my Dad.
COURT:
Q: What did he point towards your Dad?
A: Firearm.
PROSECUTOR PADILLA:
Q: You said Joemarie was pointing a firearm to your
father. Was it [a] long or short firearm?
A: About 11 inches.
Q: After you saw Joemarie pointing a firearm to your
father, what happened next?
A: I saw my father staggering towards me and I saw
Joemarie Cerilla ran.
Q: Where was he going?
A: Maybe towards his house.31
xxxx
Q: If this Joemarie Cerilla is inside the Courtroom, can
you identify him?
A: Yes, Maam.
Q: Please point to him. (Witness pointing to the
accused Joemarie Cerilla).32
Michelles account of how her father was shot by appellant was
corroborated by the post-mortem examination which reveals
that the entrance wound is located at the back of the victim. 33

In the same vein, the medico-legal expert concluded that the

gunshot was fired at a close range, as evidenced by the
presence of a power burn measuring four (4) centimeters in
diameter surrounding the periphery of the wound 34 and
penetrating his internal organs.35
Significantly, the eyewitnesss positive identification of
appellant as the perpetrator of the crime is fully supported the
victims dying declaration.
A dying declaration is a statement made by the victim of
homicide, referring to the material facts which concern the
cause and circumstances of the killing and which is uttered
under a fixed belief that death is impending and is certain to
follow immediately, or in a very short time, without an
opportunity of retraction and in the absence of all hopes of
recovery. In other words, it is a statement made by a person
after a mortal wound has been inflicted, under a belief that
death is certain, stating the facts concerning the cause and
circumstances surrounding his/her death.36
As an exception to the rule against hearsay evidence, a dying
declaration or ante mortem statement is evidence of the
highest order and is entitled to utmost credence since no
person aware of his impending death would make a careless
and false accusation.37 It is thus admissible to provide the
identity of the accused and the deceased, to show the cause of
death of the deceased, and the circumstances under which the
assault was made upon him. The reasons for its admissibility is
necessity and
trustworthiness. Necessity, because the declarants death
renders it impossible his taking the witness stand, and it often
happens that there is no other equally satisfactory proof of the
crime; allowing it, therefore, prevents a failure of justice. And
trustworthiness, because the declaration is made in extremity,
when the party is at the point of death and when every motive
to falsehood is silenced and the mind is induced by the most
powerful considerations to speak the truth. The law considers
the point of death as a situation so solemn and awful as
creating an obligation equal to that which is imposed by an
oath administered in court.38
Of the doctrines that authorize the admission of special classes
of hearsay, the doctrine relating to dying declarations is the
most mystical in its theory and, traditionally, among the most
arbitrary in its limitations. In the United States, the notion of the
special likelihood of truthfulness of deathbed statements was
widespread long before the recognition of a general rule
against hearsay in the early 1700s. Not surprisingly, nearly as
soon as we find a hearsay rule, we also find an exception for
dying declarations.39
Four requisites must concur in order that a dying declaration
may be admissible, thus: first, the declaration must concern the
cause and surrounding circumstances of the declarant's death.
This refers not only to the facts of the assault itself, but also to
matters both before and after the assault having a direct causal
connection with it. Statements involving the nature of the
declarants injury or the cause of death; those imparting
deliberation and willfulness in the attack, indicating the reason
or motive for the killing; justifying or accusing the accused; or
indicating the absence of cause for the act are admissible. 40
Second, at the time the declaration was made, the declarant
must be under the consciousness of an impending death. The
rule is that, in order to make a dying declaration admissible, a

134

fixed belief in inevitable and imminent death must be entered

by the declarant. It is the belief in impending death and not the
rapid succession of death in point of fact that renders the dying
declaration admissible. It is not necessary that the approaching
death be presaged by the personal feelings of the deceased.
The test is whether the declarant has abandoned all hopes of
survival and looked on death as certainly impending. 41 Third,
the declarant is competent as a witness. The rule is that where
the declarant would not have been a competent witness had he
survived, the proffered declarations will not be admissible.
Accordingly, declarations made by a child too young to be a
competent witness or by a person who was insane or
incapable of understanding his own statements by reason of
partial unconsciousness are not admissible in evidence.42
Thus, in the absence of evidence showing that the declarant
could not have been competent to be a witness had he
survived, the presumption must be sustained that he would
have been competent.43 Fourth, the declaration must be
offered in a criminal case for homicide, murder, or parricide, in
which the declarant is the victim.44 Anent this requisite, the
same deserves no further elaboration as, in fact, the
prosecution had caused its witnesses to take the stand and
testify in open court on the substance of Alexanders ante
mortem statement in the present criminal case for murder.
The victim communicated his ante-mortem statement to three
persons who testified with unanimity that they had been told by
the victim himself that it was appellant who shot him. Michelle
recounted:
Q: You said your father moved towards you, what
happened next?
A: I approached my father and cuddled him.
Q: What happened next?
A: While I was cuddling my father he said, "Day, it was
Joemarie who shot me."
Q: How many time he said he was shot?
A: Not once but about 10 times.45
Shortly thereafter, Novie Mae arrived and was told by
Alexander that it was appellant who opened fire at
him:
Q: When you reached Confessor Street, what
happened?

FISCAL:
Q: When you saw your sister Michelle assisting your
father, what [sic] happened next?
A: And I immediately went near my father and asked
him who shot him and he answered it was Joemarie
Cerilla who shot him.
Q: Before you reached your father, did you observe
his physical appearance of what happened to him?
A: Yes, Maam, he was supporting with his arm and
when I asked him he still made a response.
Q: You said [that] before you approached your
father[,] you saw him supporting his body, what was
his position at that time?
A: He was in a position of lying with his hand on the
road and my sister was assisting him.
xxx
Q: Were you able to observe why your father was
sitting on the ground and supporting himself not to fall.
A: Yes, Maam.
Q: Why, [sic] what did you observe?
A: My father was supporting himself in order that
blood will not [ooze] from his body and his body will
not fall down.46
SPO3 Dequito, who responded immediately to the
crime scene, corroborated the testimonies of the
Alexanders children, to wit:
Q: So, what did you do when you arrived at the crime
scene?
A: We advised the group to carry Mr. Parreo to the
ambulance because the ambulance was on the way
and after our mobile arrived, the ambulance arrived
also [sic] so we carried Mr. Parreo to be brought to
the hospital.
COURT:

A: I saw that my elder sister was assisting my father.

COURT:

Q: Meaning
ambulance?

Q: Whats the name of your sister?

A: Yes, Your Honor.

A: Michelle.

Q: And after he was loaded, what did you do?

COURT:

A: Before the ambulance left the area, I questioned

the victim who shot him and he answered Alias
"Pato." I am referring to Joemarie Cerilla, the
accused.

Proceed.

you

loaded

the

victim

into

the

135

Q: The accused Cerilla, Alias "Pato"?

A: Yes, Your Honor.
PROSECUTOR:
Q: Can you remember the exact words uttered by the
victim when you asked him who shot him?
A: He answered me that: I questioned him, "Who shot
you?" and he answered that it was Cerilla and I
further asked him "The husband of Madoline" and he
answered "Yes, Alias "Pato", the husband of
Madoline.47
Likewise, Alexanders wife, Sonia, testified:
Q: You said from your house when you were told by
the girls that your husband was shot, what did you
do?
A: I looked for a taxi and proceeded to the hospital.
xxx
Q: When you arrived at the hospital, where did you go
first?
A: To my husband.
xxx
Q: When you reached that hospital and your own
mother led you to where Alexander was, in what part
of the hospital did you first see him.
A: Outside the operating room.
Q: What was the situation of your husband when you
first saw him?
A: He was leaning on his side and many nurses
attending to him and saying "araguy."
xxx
Q: Between you and your husband who spoke first?
A: My husband.
Q: What were the exact words stated by your
husband?
A: He told me that it was Joemarie who shot him.48
These statements comply with all the requisites of a dying
declaration. First, Alexanders declaration pertains to the
identity of the person who shot him. Second, the fatal quality
and extent of the injuries49 he suffered underscore the
imminence of his death as his condition was so serious that his

demise occurred the following morning after a thirteen (13)hour operation. Third, he would have been competent to testify
had he survived. Fourth, his dying declaration is offered in a
criminal prosecution for murder where he was the victim.
Other police officers were presented by the defense to refute
the dying declaration.1wphi1 PO1 Javelora alleged that he
happened to pass by the crime scene and saw a young girl
crying. The girl led him to her father who was sitting on the
roadside. He asked the victim who shot him but he did not get
any reply.50 PO3 Allona and Sarmiento arrived at the hospital
and questioned Alexander as to who shot him but the latter told
them, "I am not sure because it was dark."51 These statements
cannot be construed as a categorical statement of the victim
denying knowledge as to the identity of his assailant. It can be
recalled that at the time Alexander was being questioned, he
was already being readied for surgery. At that point, he was
understandably no longer fit to respond to questions. Between
these two seemingly conflicting testimonies, it is the positive
identification made by Alexander in his dying declaration which
must be sustained.
Appellant insists that there was an inherent impossibility in
identifying the assailant with clarity since there was a power
blackout at the time of the commission of the crime and was
then a moonless night.
The fact that the crime was committed during a blackout does
not cast doubt on Alexanders and Michelles positive
identification of appellant. While the place of occurrence was
dark, this did not prevent the Alexander or Michelle from
identifying the assailant, especially since the shot was
delivered at close range.
In dismissing appellants contention, the trial court rationalized:
x x x This argument deserves scant consideration. In the case
of People v. Hillado, G.R. No. 122838[,] promulgated on May
24, 1999[,] citing the case of People v. Oliano, "visibility at
nighttime is possible not only at the exact minute and date
when the moon is full as indicated in the calendar. Thus, a
persons nocturnal eyesight, is not necessarily diminished just
because there is no illumination from the moon, because it is a
fact that our eyes can actually adjust to the darkness so that
we can still see objects clearly even without sufficient lighting.
In the case at bar, it would not be so hard for Michelle to
identify a persons fact especially if the latter as in the
present case was barely two (2) arms length away from them
which is confirmed by the presence of gunpowder nitrates on
the body of the victim. We stress, that the normal reaction of
the person is to direct his sight towards the source of a startling
[shot] or occurrence. As held in People v. Dolar, the most
natural reaction of the victims in criminal violence is to strive to
see the looks and faces of their assailants and to observe the
manner in which the crime is committed. Added to this is the
fact that the accused Joemarie Cerilla and the victim Alexander
Parreo have known each other quite well before the incident
so that they became familiar with each others face and
physical features. x x x 52
Moreover, the prosecution witnesses were not shown to be
impelled by ill motive to testify falsely against appellant.
Besides, Susan, Michelle and Novie Mae, being immediate
relatives of the deceased, would naturally be interested in
having the real culprit punished.53

136

The positive identification of appellant must necessarily prevail

over his alibi.54 It was not physically impossible for appellant to
have been present at the scene of the crime at the time of its
commission. The distance of his house, where he supposedly
was, from the locus criminis is only 120-150 meters, more or
less.55
Appellant counters that there was absence of any motive on
his part to kill the victim; that it was not clearly proven that he
fired a gun, based on the paraffin test; and that he appeared
calm and composed and showed no indication of guilt when he
was invited by the police officers shortly after the commission
of the crime.
Time and again, we have ruled that a negative finding on
paraffin test is not a conclusive proof that one has not fired a
gun because it is possible for a person to fire a gun and yet
bear no traces of nitrates or gunpowder, as when the culprit
washes his hands or wears gloves.56 The trial court correctly
rejected the result of the paraffin test in light of the positive
identification of appellant.
The trial court held that the killing was qualified by treachery
because Alexander, who was unarmed, was suddenly and
unexpectedly shot from behind by appellant without any risk to
the latter from any defense which the former might make.
There was no opportunity given to Alexander to repel the
assault or offer any defense of his person. There was not the
slightest provocation on his part.57 We agree with the findings
of the trial court. The presence of treachery was evident in the
execution of the crime. Appellant suddenly, and without
warning, shot Alexander from his back.
Under Article 248 of the Revised Penal Code, as amended by
Republic Act No. 7659, murder is punishable with reclusion
perpetua to death. Because the killing of Alexander, although
qualified by treachery, was not attended by any other
aggravating circumstance, the proper imposable penalty is
reclusion perpetua.

G.R. No. 172102

REPUBLIC
vs.
HANOVER
Respondent.

OF

July 2, 2010
THE

WORLWIDE

PHILIPPINES,
TRADING

Petitioner,
CORPORATION,

DECISION
PERALTA, J.:
Before the Court is a petition for review on certiorari under Rule
45 of the Rules of Court, seeking the reversal and setting aside
of the Decision1 dated May 6, 2005 of the Court of Appeals
(CA) in CA-G.R. CV No. 70077, which affirmed the August 7,
1997 Decision of the Regional Trial Court (RTC) of Mandaue
City, Branch 56, in LAND REG. CASE NO. N-281. Petitioner
also assails the CA Resolution2 dated March 30, 2006, denying
its Motion for Reconsideration.
The facts of the case are as follows:

We deem it proper to further impose exemplary damages in the

amount of P25,000.00 which is recoverable in the presence of
an aggravating circumstance, whether qualifying or ordinary, in
the commission of the crime.58
WHEREFORE, the Decision of the Court of Appeals dated 26
October 2006, affirming with modification the Regional Trial
Court Judgment dated 15 August 2000 finding appellant,
Joemari Cerilla, guilty beyond reasonable doubt of murder, is
AFFIRMED with the MODIFICATION that appellant is further
ordered to pay the heirs of Alexander Parreo P25,000.00 as
exemplary damages.
SO ORDERED.

On October 15, 1993, Hanover Worldwide Trading Corporation

filed an application for Registration of Title over Lot No. 4488 of
Consolacion Cad-545-D (New) under Vs-072219-000396,
situated in Barrio Sacsac, Consolacion, Cebu, containing an
area of One Hundred Three Thousand Three Hundred Fifty
(103,350) square meters, more or less, pursuant to
Presidential Decree (P.D.) No. 1529, otherwise known as the
Property Registration Decree. The application stated that
Hanover is the owner in fee simple of Lot No. 4488, its title
thereto having been obtained through purchase evidenced by
a Deed of Absolute Sale.
Attached to the petition are: 1) a Verification Survey Plan; 2) a
copy of the approved Technical Description of Lot 4488; 3) a
copy of the Deed of Sale in favor of Hanovers President and
General Manager; 4) a copy of a Waiver executed by the
President and General Manager of Hanover in favor of the
latter; 5) a Geodetic Engineer's Certificate attesting that the
property was surveyed; 6) a Tax Declaration; 7) a tax
clearance; 8) a Municipal Assessor's Certification stating,
among others, the assessed value and market value of the
property; and 9) a CENRO Certification on the alienability and
disposability of the property.

137

Except for the Republic, there were no other oppositors to the

application. The Republic contended, among others, that
neither Hanover nor its predecessors-in-interest are in open,
continuous, exclusive and notorious possession and
occupation of the land in question since June 12, 1945 or prior
thereto; the muniments of title, tax declarations and receipts of
tax payments attached to or alleged in the application do not
constitute competent and sufficient evidence of a bona fide
acquisition of the lands applied for; Hanover is a private
corporation disqualified under the Constitution to hold alienable
lands of the public domain; the parcels of land applied for are
portions of the public domain belonging to the Republic and are
not subject to private appropriation.
The case was then called for trial and respondent proceeded
with the presentation of its evidence. The Republic was
represented in the proceedings by officers from the Office of
the Solicitor General (OSG) and the Department of
Environment and Natural Resources (DENR).
On August 7, 1997, the RTC rendered its Decision 3 approving
Hanovers application for registration of the subject lot. It held
that from the documentary and oral evidence presented by
Hanover, the trial court was convinced that Hanover and its
predecessors-in-interest had been in open, public, continuous,
notorious and peaceful possession, in the concept of an owner,
of the land applied for registration of title, and that it had
registrable title thereto in accordance with Section 14 of P.D.
1529.

Petitioner also argues that respondent failed to present

incontrovertible evidence in the form of specific facts indicating
the nature and duration of the occupation of its predecessor-ininterest to prove that the latter has been in possession of the
subject lot under a bona fide claim of acquisition of ownership
since June 12, 1945 or earlier.
The petition is meritorious.
As to the first assigned error, however, the Court is not
persuaded by petitioners contention that the RTC did not
acquire jurisdiction over the case. It is true that in land
registration cases, the applicant must strictly comply with the
jurisdictional requirements. In the instant case, though, there is
no dispute that respondent complied with the requirements of
the law for the court to acquire jurisdiction over the case.
With respect to the setting of the initial hearing outside the 90day period set forth under Section 23 of P.D. 1529, the Court
agrees with the CA in ruling that the setting of the initial hearing
is the duty of the land registration court and not the applicant.
Citing Republic v. Manna Properties, Inc.,5 this Court held in
Republic v. San Lorenzo Development Corporation6 that:

On appeal by the State, the judgment of the RTC was affirmed

by the CA via the presently assailed Decision and Resolution.

The duty and the power to set the hearing date lie with the land
registration court. After an applicant has filed his application,
the law requires the issuance of a court order setting the initial
hearing date. The notice of initial hearing is a court document.
The notice of initial hearing is signed by the judge and copy of
the notice is mailed by the clerk of court to the LRA [Land
Registration Authority]. This involves a process to which the
party-applicant absolutely has no participation. x x x

Hence, the instant petition based on the following grounds:

xxxx

x x x a party to an action has no control over the Administrator

or the Clerk of Court acting as a land court; he has no right to
meddle unduly with the business of such official in the
performance of his duties. A party cannot intervene in matters
within the exclusive power of the trial court. No fault is
attributable to such party if the trial court errs on matters within
its sole power. It is unfair to punish an applicant for an act or
omission over which the applicant has neither responsibility nor
control, especially if the applicant has complied with all the
requirements of the law.

THE DEFECTIVE AND/OR WANT OF NOTICE BY

PUBLICATION OF THE INITIAL HEARING OF THE CASE A
QUO DID NOT VEST THE TRIAL COURT WITH
JURISDICTION TO TAKE COGNIZANCE THEREOF.
II
DEEDS OF SALE AND TAX DECLARATIONS/CLEARANCES
DID
NOT
CONSTITUTE
THE
"WELL-NIGH
INCONTROVERTIBLE"
EVIDENCE
NECESSARY
TO
ACQUIRE TITLE THROUGH ADVERSE OCCUPATION.4
Petitioner claims that the RTC failed to acquire jurisdiction over
the case. It avers that the RTC set the initial hearing of the
case on September 25, 1995 in an Order dated June 13, 1995.
Petitioner contends, however, that, pursuant to Section 23 of
P.D. 1529, the initial hearing of the case must be not earlier
than forty-five (45) days and not later than ninety (90) days
from the date of the Order setting the date and hour of the
initial hearing. Since the RTC Order was issued on June 13,
1995, the initial hearing should have been set not earlier than
July 28, 1995 (45 days from June 13, 1995) and not later than
September 11, 1995 (90 days from June 13, 1995).
Unfortunately, the initial hearing was scheduled and actually
held on September 25, 1998, some fourteen (14) days later
than the prescribed period.

Moreover, it is evident in Manna Properties, Inc. that what is

more important than the date on which the initial hearing is set
is the giving of sufficient notice of the registration proceedings
via publication. x x x
In the instant case, there is no dispute that sufficient notice of
the registration proceedings via publication was duly
made.1avvphi1
Moreover, petitioner concedes (a) that respondent should not
be entirely faulted if the initial hearing that was conducted on
September 25, 1995 was outside the 90-day period set forth
under Section 23 of Presidential Decree No. 1529, and (b) that
respondent substantially complied with the requirement relating
to the registration of the subject land.

138

Hence, on the issue of jurisdiction, the Court finds that the RTC
did not commit any error in giving due course to respondents
application for registration.
The foregoing notwithstanding, the Court agrees with petitioner
on the more important issue that respondent failed to present
sufficient evidence to prove that it or its predecessors-ininterest possessed and occupied the subject property for the
period required by law.
Section 14 (1) of P.D. 1529, as amended, provides:

It is true, as respondent argues, that an examination of these

requisites involve delving into questions of fact which are not
proper in a petition for review on certiorari. Factual findings of
the court a quo are generally binding on this Court, except for
certain recognized exceptions,10 to wit:
(1) When the conclusion is a finding grounded entirely
on speculation, surmises and conjectures;
(2) When the inference made is manifestly mistaken,
absurd or impossible;

SEC. 14. Who may apply. The following persons may file in
the proper Court of First Instance an application for registration
of title to land, whether personally or through their duly
authorized representatives:

(3) Where there is a grave abuse of discretion;

(1) Those who by themselves or through their predecessors-ininterest have been in open, continuous, exclusive and
notorious possession and occupation of alienable and
disposable lands of the public domain under a bona fide claim
of ownership since June 12, 1945, or earlier.7

(5) When the findings of fact are conflicting;

Likewise, Section 48 (b) of Commonwealth Act 141, as

amended by Section 4 of P.D. 1073, states:
Section 48. The following described citizens of the Philippines,
occupying lands of the public domain or claiming to own any
such lands or an interest therein, but whose titles have not
been perfected or completed, may apply to the Court of First
Instance [now Regional Trial Court] of the province where the
land is located for confirmation of their claims and the issuance
of a certificate of title therefor, under the Land Registration Act,
to wit:
xxxx
(b) Those who by themselves or through their predecessors-ininterest have been in open, continuous, exclusive and
notorious possession and occupation of agricultural lands of
the public domain, under a bona fide claim of acquisition of
ownership, since June 12, 1945, or earlier, immediately
preceding the filing of the application for confirmation of title
except when prevented by war or force majeure. These shall
be conclusively presumed to have performed all the conditions
essential to a Government grant and shall be entitled to a
certificate of title under the provisions of this chapter.8
As the law now stands, a mere showing of possession and
occupation for 30 years or more is not sufficient. Therefore,
since the effectivity of P.D. 1073 on January 25, 1977, it must
now be shown that possession and occupation of the piece of
land by the applicant, by himself or through his predecessorsin-interest, started on June 12, 1945 or earlier. This provision is
in total conformity with Section 14 (1) of P.D. 1529.9
Thus, pursuant to the aforequoted provisions of law, applicants
for registration of title must prove: (1) that the subject land
forms part of the disposable and alienable lands of the public
domain, and (2) that they have been in open, continuous,
exclusive and notorious possession and occupation of the
same under a bona fide claim of ownership since June 12,
1945, or earlier.

(4) When the judgment

misapprehension of facts;

is

based

on

(6) When the Court of Appeals, in making its findings,

went beyond the issues of the case and the same is
contrary to the admissions of both appellant and
appellee;
(7) When the findings are contrary to those of the trial
Court;
(8) When the findings of fact are conclusions without
citation of specific evidence on which they are based;
(9) When the facts set forth in the petition as well as in
the petitioners main and reply briefs are not disputed
by the respondents; and
(10) When the findings of fact of the Court of Appeals
are premised on the supposed absence of evidence
and contradicted by the evidence on record.11
The Court finds that the instant case falls under the third and
ninth exceptions.
A careful reading of the Decisions of the RTC and the CA will
show that there is neither finding nor discussion by both the
trial and appellate courts which would support their conclusion
that respondents predecessors-in-interest had open,
continuous, exclusive and notorious possession and
occupation of the disputed parcel of land since June 12, 1945
or earlier.
No testimonial evidence was presented to prove that
respondent or its predecessors-in-interest had been
possessing and occupying the subject property since June 12,
1945 or earlier. Hanovers President and General Manager
testified only with respect to his claim that he was the former
owner of the subject property and that he acquired the same
from the heirs of a certain Damiano Bontoyan; that he caused
the payment of realty taxes due on the property; that a tax
declaration was issued in favor of Hanover; that Hanover
caused a survey of the subject lot, duly approved by the
Bureau of Lands; and that his and Hanovers possession of the
property started in 1990.12

139

The pieces of documentary evidence submitted by respondent

neither show that its predecessors possession and occupation
of the subject land is for the period or duration required by law.
The earliest date of the Tax Declarations presented in evidence
by respondent is 1965, the others being 1973, 1980, 1992 and
1993. Respondent failed to present any credible explanation
why the realty taxes due on the subject property were only paid
starting in 1965. While tax declarations are not conclusive
evidence of ownership, they constitute proof of claim of
ownership.13 In the present case, the payment of realty taxes
starting 1965 gives rise to the presumption that respondents
predecessors-in-interest claimed ownership or possession of
the subject lot only in that year.
Settled is the rule that the burden of proof in land registration
cases rests on the applicant who must show by clear, positive
and convincing evidence that his alleged possession and
occupation of the land is of the nature and duration required by
law.14 Unfortunately, as petitioner contends, the pieces of
evidence presented by respondent do not constitute the "wellnigh incontrovertible" proof necessary in cases of this nature.
Lastly, the Court notes that respondent failed to prove that the
subject lot had been declared alienable and disposable by the
DENR Secretary.
The well-entrenched rule is that all lands not appearing to be
clearly of private dominion presumably belong to the State. 15
The onus to overturn, by incontrovertible evidence, the
presumption that the land subject of an application for
registration is alienable and disposable rests with the
applicant.16
In the present case, to prove the alienability and disposability
of the subject property, Hanover submitted a Certification
issued by the Community Environment and Natural Resources
Offices (CENRO) attesting that "lot 4488, CAD-545-D,
containing an area of ONE HUNDRED THREE THOUSAND
THREE HUNDRED FIFTY (103,350) square meters, more or
less, situated at Sacsac, Consolacion, Cebu" was found to be
within "Alienable and Disposable Block-1, land classification
project no. 28, per map 2545 of Consolacion, Cebu." However,
this certification is not sufficient.
In Republic v. T.A.N. Properties, Inc.17 this Court held that it is
not enough for the Provincial Environment and Natural
Resources Offices (PENRO) or CENRO to certify that a land is
alienable and disposable, thus:

registration falls within the approved area per verification

through survey by the PENRO or CENRO. In addition, the
applicant for land registration must present a copy of the
original classification approved by the DENR Secretary and
certified as a true copy by the legal custodian of the official
records. These facts must be established to prove that the land
is alienable and disposable x x x.18
In the instant case, even the veracity of the facts stated in the
CENRO Certification was not confirmed as only the President
and General Manager of respondent corporation identified said
Certification submitted by the latter. It is settled that a
document or writing admitted as part of the testimony of a
witness does not constitute proof of the facts stated therein. 19
In the present case, Hanovers President and General
Manager, who identified the CENRO Certification, is a private
individual. He was not the one who prepared the Certification.
The government official who issued the Certification was not
presented before the RTC so that he could have testified
regarding its contents. Hence, the RTC should not have
accepted the contents of the Certification as proof of the facts
stated therein. The contents of the Certification are hearsay,
because Hanovers President and General Manager was
incompetent to testify on the truth of the contents of such
Certification. Even if the subject Certification is presumed duly
issued and admissible in evidence, it has no probative value in
establishing that the land is alienable and disposable.20
Moreover, the CENRO is not the official repository or legal
custodian of the issuances of the DENR Secretary declaring
the alienability and disposability of public lands.21 Thus, the
CENRO Certification should have been accompanied by an
official publication of the DENR Secretarys issuance declaring
the land alienable and disposable.
Respondent, however, failed to comply with the foregoing
requirements.
WHEREFORE, the petition is GRANTED. The May 6, 2005
Decision and March 30, 2006 Resolution of the Court of
Appeals in CA-G.R. CV No. 70077 and the August 7, 1997
Decision of the Regional Trial Court of Mandaue City, Branch
56 in Land Registration Case No. N-281 are SET ASIDE.
Respondent Hanover Worldwide Trading Corporations
application for registration of Lot No. 4488 of Consolacion Cad545-D (New), under Vs-072219-000396, Barrio Sacsac,
Consolacion, Cebu, is DENIED.
SO ORDERED.

x x x The applicant for land registration must prove that the

DENR Secretary had approved the land classification and
released the land of the public domain as alienable and
disposable, and that the land subject of the application for

140