G.R. No.

108854 June 14, 1994

MA. PAZ FERNANDEZ KROHN, petitioner,
vs.
COURT OF APPEALS and EDGAR KROHN, JR., respondents.
Cruz, Durian, Agabin, Atienza, Alday and Tuason for petitioner.
Oscar F. Martinez for private respondent.
BELLOSILLO, J.:
A confidential psychiatric evaluation report is being presented in evidence before the trial court
in a petition for annulment of marriage grounded on psychological incapacity. The witness
testifying on the report is the husband who initiated the annulment proceedings, not the physician
who prepared the report.
The subject of the evaluation report, Ma. Paz Fernandez Krohn, invoking the rule on privileged
communication between physician and patient, seeks to enjoin her husband from disclosing the
contents of the report. After failing to convince the trial court and the appellate court, she is now
before us on a petition for review on certiorari.
On 14 June 1964, Edgar Krohn, Jr., and Ma. Paz Fernandez were married at the Saint Vincent de
Paul Church in San Marcelino, Manila. The union produced three children, Edgar Johannes, Karl
Wilhelm and Alexandra. Their blessings notwithstanding, the relationship between the couple
developed into a stormy one. In 1971, Ma. Paz underwent psychological testing purportedly in
an effort to ease the marital strain. The effort however proved futile. In 1973, they finally
separated in fact.
In 1975, Edgar was able to secure a copy of the confidential psychiatric report on Ma. Paz
prepared and signed by Drs. Cornelio Banaag, Jr., and Baltazar Reyes. On 2 November 1978,
presenting the report among others, he obtained a decree ("Conclusion") from the Tribunal
Metropolitanum Matrimoniale in Manila nullifying his church marriage with Ma. Paz on the
ground of "incapacitas assumendi onera conjugalia due to lack of due discretion existent at the
time of the wedding and thereafter." 1 On 10 July 1979, the decree was confirmed and
pronounced "Final and Definite." 2
Meanwhile, on 30 July 1982, the then Court of First Instance (now Regional Trial Court) of
Pasig, Br. II, issued an order granting the voluntary dissolution of the conjugal partnership.
On 23 October 1990, Edgar filed a petition for the annulment of his marriage with Ma. Paz
before the trial court. 3 In his petition, he cited the Confidential Psychiatric Evaluation Report
which Ma. Paz merely denied in her Answer as "either unfounded or irrelevant." 4
At the hearing on 8 May 1991, Edgar took the witness stand and tried to testify on the contents of
the Confidential Psychiatric Evaluation Report. This was objected to on the ground that it
violated the rule on privileged communication between physician and patient. Subsequently, Ma.
Paz filed a Manifestation expressing her "continuing objection" to any evidence, oral or
documentary, "that would thwart the physician-patient privileged communication rule," 5 and
thereafter submitted a Statement for the Record asserting among others that "there is no factual
or legal basis whatsoever for petitioner (Edgar) to claim 'psychological incapacity' to annul their
marriage, such ground being completely false, fabricated and merely an afterthought." 6 Before
leaving for Spain where she has since resided after their separation, Ma. Paz also authorized and
instructed her counsel to oppose the suit and pursue her counterclaim even during her absence.
On 29 May 1991, Edgar opposed Ma. Paz' motion to disallow the introduction of the confidential
psychiatric report as evidence, 7 and afterwards moved to strike out Ma. Paz' Statement for the
Record. 8
On 4 June 1991, the trial court issued an Order admitting the Confidential Psychiatric Evaluation
Report in evidence and ruling that —
. . . the Court resolves to overrule the objection and to sustain the Opposition to
the respondent's Motion; first, because the very issue in this case is whether or not
the respondent had been suffering from psychological incapacity; and secondly,
when the said psychiatric report was referred to in the complaint, the respondent
did not object thereto on the ground of the supposed privileged communication
between patient and physician. What was raised by the respondent was that the
said psychiatric report was irrelevant. So, the Court feels that in the interest of
justice and for the purpose of determining whether the respondent as alleged in
the petition was suffering from psychological incapacity, the said psychiatric
report is very material and may be testified to by petitioner (Edgar Krohn, Jr.)
without prejudice on the part of the respondent to dispute the said report or to
cross-examination first the petitioner and later the psychiatrist who prepared the
same if the latter will be presented. 9
On 27 November 1991, the trial court denied the Motion to Reconsider Order dated June 4,
1991, and directed that the Statement for the Record filed by Ma. Paz be stricken off the record.
A subsequent motion for reconsideration filed by her counsel was likewise denied.
Counsel of Ma. Paz then elevated the issue to respondent Court of Appeals. In a Decision
promulgated 30 October 1992, the appellate court dismissed the petition for certiorari. 10 On 5
February 1993, the motion to reconsider the dismissal was likewise denied. Hence, the instant
petition for review.
Petitioner now seeks to enjoin the presentation and disclosure of the contents of the psychiatric
report and prays for the admission of her Statement for the Record to form part of the records of
the case. She argues that since
Sec. 24, par. (c), Rule 130, of the Rules of Court 11 prohibits a physician from testifying on
matters which he may have acquired in attending to a patient in a professional capacity, "WITH
MORE REASON should be third person (like respondent-husband in this particular instance) be
PROHIBITED from testifying on privileged matters between a physician and patient or from
submitting any medical report, findings or evaluation prepared by a physician which the latter
has acquired as a result of his confidential and privileged relation with a patient." 12 She says
that the reason behind the prohibition is —
. . . to facilitate and make safe, full and confidential disclosure by a patient to his
physician of all facts, circumstances and symptoms, untrammeled by
apprehension of their subsequent and enforced disclosure and publication on the
witness stand, to the end that the physician may form a correct opinion, and be
enabled safely and efficaciously to treat his patient. 13
She further argues that to allow her husband to testify on the contents of the psychiatric
evaluation report "will set a very bad and dangerous precedent because it abets circumvention of
the rule's intent in preserving the sanctity, security and confidence to the relation of physician
and his patient." 14 Her thesis is that what cannot be done directly should not be allowed to be
done indirectly.
Petitioner submits that her Statement for the Record simply reiterates under oath what she
asserted in her Answer, which she failed to verify as she had already left for Spain when her
Answer was filed. She maintains that her "Statement for the Record is a plain and simple
pleading and is not as it has never been intended to take the place of her testimony;" 15 hence,
there is no factual and legal basis whatsoever to expunge it from the records.
Private respondent Edgar Krohn, Jr., however contends that "the rules are very explicit: the
prohibition applies only to a physician. Thus . . . the legal prohibition to testify is not applicable
to the case at bar where the person sought to be barred from testifying on the privileged
communication is the husband and not the physician of the petitioner." 16 In fact, according to
him, the Rules sanction his testimony considering that a husband may testify against his wife in a
civil case filed by one against the other.
Besides, private respondent submits that privileged communication may be waived by the person
entitled thereto, and this petitioner expressly did when she gave her unconditional consent to the
use of the psychiatric evaluation report when it was presented to the Tribunal Metropolitanum
Matrimoniale which took it into account among others in deciding the case and declaring their
marriage null and void. Private respondent further argues that petitioner also gave her implied
consent when she failed to specifically object to the admissibility of the report in her Answer
where she merely described the evaluation report as "either unfounded or irrelevant." At any rate,
failure to interpose a timely objection at the earliest opportunity to the evidence presented on
privileged matters may be construed as an implied waiver.
With regard to the Statement for the Record filed by petitioner, private respondent posits that this
in reality is an amendment of her Answer and thus should comply with pertinent provisions of
the Rules of Court, hence, its exclusion from the records for failure to comply with the Rules is
proper.
The treatise presented by petitioner on the privileged nature of the communication between
physician and patient, as well as the reasons therefor, is not doubted. Indeed, statutes making
communications between physician and patient privileged are intended to inspire confidence in
the patient and encourage him to make a full disclosure to his physician of his symptoms and
condition. 17 Consequently, this prevents the physician from making public information that will
result in humiliation, embarrassment, or disgrace to the patient. 18 For, the patient should rest
assured with the knowledge that the law recognizes the communication as confidential, and
guards against the possibility of his feelings being shocked or his reputation tarnished by their
subsequent disclosure. 19 The physician-patient privilege creates a zone of privacy, intended to
preclude the humiliation of the patient that may follow the disclosure of his ailments. Indeed,
certain types of information communicated in the context of the physician-patient relationship
fall within the constitutionally protected zone of privacy, 20 including a patient's interest in
keeping his mental health records confidential. 21 Thus, it has been observed that the
psychotherapist-patient privilege is founded upon the notion that certain forms of antisocial
behavior may be prevented by encouraging those in need of treatment for emotional problems to
secure the services of a psychotherapist.
Petitioner's discourse while exhaustive is however misplaced. Lim v. Court of Appeals 22 clearly
lays down the requisites in order that the privilege may be successfully invoked: (a) the privilege
is claimed in a civil case; (b) the person against whom the privilege is claimed is one duly
authorized to practice medicine, surgery or obstetrics; (c) such person acquired the information
while he was attending to the patient in his professional capacity; (d) the information was
necessary to enable him to act in that capacity; and, (e) the information was confidential and, if
disclosed, would blacken the reputation (formerly character) of the patient.
In the instant case, the person against whom the privilege is claimed is not one duly authorized to
practice medicine, surgery or obstetrics. He is simply the patient's husband who wishes to testify
on a document executed by medical practitioners. Plainly and clearly, this does not fall within
the claimed prohibition. Neither can his testimony be considered a circumvention of the
prohibition because his testimony cannot have the force and effect of the testimony of the
physician who examined the patient and executed the report.
Counsel for petitioner indulged heavily in objecting to the testimony of private respondent on the
ground that it was privileged. In his Manifestation before the trial court dated 10 May 1991, he
invoked the rule on privileged communications but never questioned the testimony as hearsay. It
was a fatal mistake. For, in failing to object to the testimony on the ground that it was hearsay,
counsel waived his right to make such objection and, consequently, the evidence offered may be
admitted.
The other issue raised by petitioner is too trivial to merit the full attention of this Court. The
allegations contained in the Statement for the Records are but refutations of private respondent's
declarations which may be denied or disproved during the trial.
The instant appeal has taken its toll on the petition for annulment. Three years have already
lapsed and private respondent herein, as petitioner before the trial court, has yet to conclude his
testimony thereat. We thus enjoin the trial judge and the parties' respective counsel to act with
deliberate speed in resolving the main action, and avoid any and all stratagems that may further
delay this case. If all lawyers are allowed to appeal every perceived indiscretion of a judge in the
course of trial and include in their appeals depthless issues, there will be no end to litigations,
and the docket of appellate courts will forever be clogged with inconsequential cases. Hence,
counsel should exercise prudence in appealing lower court rulings and raise only legitimate
issues so as not to retard the resolution of cases. Indeed, there is no point in unreasonably
delaying the resolution of the petition and prolonging the agony of the wedded couple who after
coming out from a storm still have the right to a renewed blissful life either alone or in the
company of each other. 23
WHEREFORE, the instant petition for review is DENIED for lack of merit. The assailed
Decision of respondent Court of Appeals promulgated on 30 October 1992 is AFFIRMED
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO MENDOZA,
accusedappellant.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; TESTIMONIES; QUALIFICATION OF
WITNESSES. - Section 20, Rule 130 of the Rules of Court provides: Except as provided in the
next succeeding section, all persons who can perceive, and perceiving, can make known their
perception to others, may be witnesses x x x. With respect to the disqualification of children to
be witnesses, Section 2 1(b) of the abovementioned rule reads: The following persons cannot be
witnesses: x x x (b) Children whose mental maturity is such as to render them incapable of
perceiving the facts respecting which they are examined and of relating them truthfully. It is thus
clear that any child, regardless of age, can be a competent witness if he can perceive, and
perceiving, can make known his perception to others and of relating truthfully facts respecting
which he is examined.
2. ID.; ID.; ID.; ID.; DETERMINATION THEREOF; BEST RESOLVED BY THE
TRIAL COURT. - The requirements then of a childs competency as a witness are the: (a)
capacity of observation, (b) capacity of recollection, and (c) capacity of communication. And in
ascertaining whether a child is of sufficient intelligence according to the foregoing requirements,
it is settled that the trial court is called upon to make such determination. As held in United
States vs. Buncad, (25 Phil. 530, 536 [1913]) quoting from Wheeler vs. United States (159 U.S.
523 [1895]), and reiterated in People vs. Raptus (198 SCRA 425, 433 [1991]) and People vs.
Libungan (220 SCRA 315, 323 [1993]): The decision of this question rests primarily with the
trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of
intelligence, and may resort to any examination which will tend to disclose his capacity and
intelligence as well as his understanding of the obligations of an oath. As many of these matters
cannot be photographed into the record, the decision of the trial judge will not be disturbed on
review unless from that which is preserved it is clear that it was erroneous. The trial court has
adjudged Paul Michael competent to testify. We agree. A close and careful examination of the
testimony of Paul Michael shows that at the time he testified, he could be deemed a child of
above average intelligence, i.e., capable of giving responsive ansWers to the questions asked of
him by the trial judge, as well as recalling events and relating them to such recollections. The
initial hesitancy of Paul Michael to name his father as the author of the crime was sufficiently
explained by the trial court as follows: The first time Paul Michael was presented as [a] witness,
the only thing substantial he testified on was that his father boxed his mother in the mouth and
tied her. On further questions, he refused to answer anymore. The Court noticed the reason for
such adamant attitude of the witness. His father, the accused, was directly in his sight and
whenever their eyes met, the child could speak no more. The second time the witness was
presented, the private prosecutor covered the child from the accused. The Court likewise directed
the accused to sit farther away thereby placing the accused out of the direct sight of the witness.
As a result, the child was able to testify freely and extensively without hesitation. We defer to
such observation and explanation. Indeed, there are certain matters that aid the trial court in
assessing the credibility of a witness which are not available to the appellate court, such as
emphasis, gesture, and the inflection of the voice of the witness. The trial court had the distinct
opportunity to make such observations and to avail of such aids while Paul Michael was on the
witness stand, thusly, we find no reason to disregard the assessment made by the trial court.
3. CRIMINAL LAW; ALTERNATIVE CIRCUMSTANCES; INTOXICATION;
MITIGATING, ABSENT SUFFICIENT PROOF THAT IT WAS HABITUAL NOR
SUBSEQUENT TO THE PLAN TO COMMIT THE FELONY; CASE AT BAR. - The trial
court correctly appreciated in favor of the accused-appellant the mitigating circumstance of
intoxication. The accused-appellant committed the felony in question in a state of intoxication
and there was no sufficient proof that it was habitual nor subsequent to the plan to commit the
felony.
APPEARANCES OF COUNSEL
The Solicitor General for plaintiff-appellee.
Miguel P. Pineda for accused-appellant.
DECISION
DAVIDE, JR., J.:
Maria Gina Avila Mendoza, a mother of three young children, was put to fire in her home in
Balasing, Sta. Maria, Bulacan, on 22 November 1989. She suffered extensive second to fourth
degree burns and died of hypostatic pneumonia and infected fourth degree burns on 30
November 1989. Her husband, accused-appellant Rolando Mendoza, was charged with the crime
of parricide in an information filed on 29 June 1990 with Branch 8 of the Regional Trial Court
(RTC) of Malolos, Bulacan. The accusatory portion thereof read:
That on or about the 22nd day of November, 1989, in the municipality of Sta. Maria, province of
Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused
Rolando Mendoza, armed with a kerosene gas [sic] and with intent to kill his wife Maria Gina
Mendoza, with whom he was united in lawful wedlock, did then and there wilfully, unlawfully
and feloniously attack, assault and burn with the kerosene gas he was then provided, the said
Maria Gina Mendoza which directly caused her death.
Contrary to law.1
Trial on the merits was had after accused-appellant entered a plea of not guilty at his
arraignment.2
The prosecution presented as its witnesses Paul Michael Mendoza, a five-year old child of the
victim and the accused-appellant; Jhun Avila, Teofisto Avila, and Rodora Avila, the victims
brother, father, and sister, respectively; and Dr. Nieto M. Salvador, the Medico-Legal Officer of
the National Bureau of Investigation (NBI). On its part, the defense presented the
accusedappellant himself and Erlinda Porciuncula, a childhood friend.
The testimonies of the witnesses for the prosecution established the following facts:
The accused-appellant and the victim were married on 30 January 1985 at the Sto. Cristo Parish
Church in Bocaue, Bulacan and lived in Balasing, Sta. Maria, Bulacan.3 Their union bore three
children: Paul Michael, the eldest, who was born on 7 June 1985,4 John-John, and Paula, the
youngest.5
In the evening of 22 November 1989, the accused-appellant and his wife were in their residence
with their children. At around 4:00 a.m. the next morning, relatives of the accused-appellant
went to the house of Jhun Avila (the victims brother) in Wawa, Balagtas, Bulacan, and informed
him that his sister Gina got burned. Two hours later, Jhun and his father Teofisto Avila went to
the house of Gina and her husband, only to discover that the latter were not there. They found the
things inside the house in disarray; saw a Coke bottle which smelled of kerosene, hair strands
and burned human flesh in the comfort room; and the burned clothes of Gina outside the house.
They also noticed that the branches and leaves of the atienza tree in front of the house were
likewise somewhat burned. They proceeded to a neighbors house where Paul Michael, JohnJohn,
and Paula were temporarily sheltered. Paul Michael was sitting in a corner and somewhat
tulala, while Paula was sleeping. Jhun then brought the children to his house.6
As Erlinda Porciuncula informed the Avila family that Gina had been brought to the Manila
Sanitarium Hospital in Pasay City, Teofisto, Jhun, and Rodora proceeded there.7 According to
Jhun, however, they were not able to talk to Gina that day as she was inside the operating room.
It was only after two days that Jhun was able to see Gina, who lay naked with all the hospital
gadget[s] in the mouth and at the head and she was completely bald and her body was burned.8
Jhun likewise testified that Gina was unable to talk to her sister Rodora nor her father Teofisto.9
Gina died on 30 November 1989. Dr. Noel Minay, Medico-Legal Officer of the NBI,, conducted
the autopsy and determined the cause of death to be hypostatic pneumonia; infected 4th degree
burns;10 and in his Autopsy Report,11 he entered the following post-mortem findings:
Burns, extensive, second to fourth degree, with skin grafts, excepting the back of the neck and
head, pelvic area, buttocks, whole of the back, posterior aspect of the right leg, and lower
anterior third of the leg and foot, left side.
Lungs, with foci of consoliditions at the bases; transections shows (sic) yellowish mucoid
material in the lower part of the tracheo-bronchial tree.
Brain and other visceral organs, marked congestion.
Stomach contains small amount of yellowish fluid material.
This report also indicated that the cause of death was HYPOSTATIC PNEUMONIA;
INFECTED FOURTH DEGREE BURNS.
Dr. Nieto M. Salvador testified on the certification and autopsy report, in view of Dr. Minays
resignation from the NBI sometime after he examined the cadaver of the victim.12
In the evening of 30 November 1989, Jhun told Paul Michael that his mother Gina had died. Paul
Michael then narrated to him what actually happened to his mother that fateful evening. Because
of these revelations and the findings of the doctor, Jhun reported the matter to the police
authorities in Sta. Maria, Bulacan.13
Jhun Avila had gone five times to the residence of Gina and the accused-appellant from 23
November 1989 to 30 November 1989, yet he did not see the accused-appellant; in fact, the latter
never showed up during the wake nor burial of Gina. It was only when the accused-appellant was
arrested in the house of a woman in Longos, Balagtas, Bulacan,14 that Jhun saw him for the first
time after the incident.
The medical expenses incurred for the hospitalization of Gina amounted to P88,750.00, of
which, her parents were able to pay only P18,000.00. For the balance, Teofisto had to sign a
promissory note to be paid on installments.15
As to how Gina was burned, only five-year old Paul Michael could testify thereon.
In his testimony during the presentation of the evidence in chief on 18 February 1991, Paul
Michael declared that one evening inside their house, his father boxed his mother on her mouth
and then tied her up. However, the witness did not answer succeeding questions which sought to
elicit what happened thereafter, although he kept on looking at his father throughout this period.
He later revealed that he saw matches and kerosene in their house. He likewise declared that his
mother was now in heaven because she was dead.16 During his rebuttal testimony on 12 October
1992, Paul Michael categorically declared that it was his father who burned his mother. The
accused-appellant, who was drunk at that time, first tied the victims hands behind her back, then
poured kerosene on the front of her body and set her aflame. Paul Michael further declared that
his father tied-up his mother because they quarreled when his mother wanted him (Paul Michael)
to go with the accused-appellant to the street corner, but his father refused. Finally, many times
before, his parents quarreled because his father was always drunk.17 Pertinent portions of Paul
Michaels testimony on rebuttal are as follows:
Q When your father Rolando Mendoza testified on direct examination, he stated that when
he returned to your house in Balasing, Sta. Maria, Bulacan on November 22, 1989, he saw your
mother was jumping up and down while her dress was already burning. What can you say about
that?
A It is not true, Sir.
Q Why do you say that it is not true?
A Because it was he who burned my mother, Sir.
COURT:
How did he burn your mother?
A At first he tied up my mother, then he poured kerosine [sic] upon my mother, Sir.
Q What was tied, the hands or the feet of your mother? -
A The hands, Your Honor.
Q How was it tied?
A At the back, Your Honor.
Q Do you know the reason why she was tied up?
A Yes Your Honor. They were quarreling because my mother wanted me to go with my
father to [sic] street corner.
Q Then what happened next?
A Because of that they quarreled already.
Q What you mean is that your mother was objecting you to go [sic] with your father?
A My mother wanted me to go with my father but my father refused me [sic] to go with
him, Your Hon or.
Q What would you do at the street corner with your father?
A She just wanted me to accompany my father.
Q And because of that quarrel, your father tied the hands of your mother?
A Yes, Your Honor.
Q Then he put kerosine [sic] at the front body [sic] of your mother?
A Yes, Your Honor.
Q And after putting kerosine [sic], what did he do next?
A He lighted it, Your Honor.
Q Was that the first time that you[r] mother and your father quarreled?
A Many times, Your Honor.
Q What was the cause of their quarrel?
A Because my father was always drunk, Your Honor.
Q At the time when your mother was tied and then kerosine [sic] was poured upon her
dress, was your father drunk?
A Yes, Your Honor.
Q Your father always went out and when he returned he was always drunk?
A Yes, Your Honor.18
The defense, of course, had a different story to tell.
Erlinda Porciuncula, who grew up with the accused-appellant and was like a sister to him,
testified that at around 8:30 p.m. of 22 November 1989, Rolando Mendoza came to her house
asking for help because his wife burned herself. Together with the accused-appellant, she
borrowed the owner-type jeep of her neighbor so they could bring his wife to the hospital. They
proceeded to St. Marys Hospital, but the attending physician advised them to bring the victim to
the Philippine General Hospital (PGH). At the hospital, the staff could not admit the victim due
to the unavailability of rooms. On the way to the PGH, the victim, who was lying in the front
seat of the jeep, told Porciuncula that she was fed up with her life and was entrusting her children
to her. They then went to the Manila Sanitarium Hospital where the victim was immediately
given first aid and transferred to the isolated Room No. 328. The accused-appellant requested the
witness to buy medicine and inform the relatives of the victim of what had happened, which she
acceded to. She was able to visit the victim three more times before the victim died on 30
November 1989, and on two of these occasions, she saw the accused-appellant at the hospital.19
Accused-appellant Rolando Mendoza testified that on 22 November 1989, between 5:00 to 6:00
p.m., three persons who wanted to befriend him visited him in his house. These three persons, of
whom the accused-appellant could only name one, brought a bottle of liquor and had a drinking
session with him, which lasted about an hour or two. As these three persons were leaving, the
accused-appellant offered to accompany them to the road. After doing so, he returned home,
whereupon he saw his wife jumping up and down and removing her burning clothes. He saw a
pail of water which he then used to douse out the flames. At this time, his wife cursed him and
said: Putang-ina mo, sawang-sawa na ako sa buhay na ito, and Huwag mo akong pakialaman.20
The accused-appellant did not mind her, merely proceeded to remove her dress and cried for
help. The neighbors came over and he entrusted the children to them. Several others arrived and
he asked one of them who owned a vehicle to help him bring his wife to the hospital. They were
able to bring her to St. Marys Hospital, but since the hospital did not have a burns specialist, they
were advised to bring the victim to a hospital in Manila. The driver of the jeep, however, refused
to bring them to Manila as he had neither a drivers license nor gas. The accused-appellant was
instead brought to Bocaue, Bulacan, and there he was able to procure another vehicle and borrow
some money. Eventually, his wife was brought to the Manila Sanitarium Hospital after the PGH
refused to admit the victim. He stayed with his wife from the time she was admitted up to the
time she died, and even bought the needed medicines. He did not attend her wake nor burial
because of the threats his brother-in-law made. When asked if he knew why his wife burned
herself, he surmised that she was aburido21 from all their financial difficulties.22
In giving full credence to the testimony of eyewitness Paul Michael,23 the trial court observed
that:
As provided by Section 20, Rule 130 of the Rules of Court, a person who can perceive, and
perceiving, can make known his perception to others, may be a witness. A four-year old boy can
already speak clearly, can understand things happening around him, and ready to study, to read
and to write. For families who can afford, a four-year old child is already sent to the nursery to
begin his/her studies. An intelligent boy is undoubtedly the best observer to be found. He is little
influenced by the suggestion of others and describes objects and occurrences as he has really
seen them (Pp. vs. Bustos, 45 Phil. 9). Paul Michael was five months over four years when the
incident happened. He could perceive things happening around him. This was the reason why
when his grandfather and an uncle found him in the house of a neighbor, he was in a state of
shock, or at least dumbfounded (tulala). Because he knew the implication of what had happened
to his mother. He knew that the burning of his mother might cause her death. If, indeed, he could
not yet perceive things, such happening would pass unnoticed and without impact on him. Unless
a childs testimony is punctured with serious inconsistencies as to lead one to believe that he was
coached, if he can perceive and make known his perception, he is considered a competent
witness (Pp. vs. Cidro, et al., 56 O.G. 3547).
The first time Paul Michael was presented as [a] witness, the only thing substantial he testified
on was that his father boxed his mother in the mouth and tied her. On further questions, he
refused to answer anymore. The Court noticed the reason for such adamant attitude of the
witness. His father, the accused, was directly in his sight and whenever their eyes met, the child
could speak no more. The second time the witness was presented, the private prosecutor covered
the child from the accused. The Court likewise directed the accused to sit farther away thereby
placing the accused out of the direct sight of the witness. As a result, the child was able to testify
freely and extensively without hesitation.24
The trial court rejected the version of the accused-appellant, stating that:
Accused Rolando Mendoza made the defense that his wife Maria Gina Avila-Mendoza burned
herself. He, however, lost courage when Gina died. After Ginas death, he left the hospital and
never returned. He failed to visit her during the wake and even during the burial. He was forced
to come out only when arrested in a house of a woman in Longos, Balagtas, Bulacan. Against
such behaviour of his may be applied an interpretation of flight in criminal law - that flight of the
accused is an evidence of guilt and a guilty conscience (U.S. vs. Alegado, 25 Phil. 310). Accused
gave as a reason for his failure to attend the wake and burial of his wife the threat of his
brotherin-law to kill him if anything would happen to Gina. It is said that the wicked flee even
when no
man pursueth, whereas the righteous are as brave as a lion (U.S. vs. Sarikala, 37 Phil. 486). If,
indeed, accused was not guilty and nothing bothered his conscience, he would be brave as a lion
to meet his brother-in-law and face any and all consequences. In the same way that if his
conscience is clear, no threat, real or imaginary, in the whole world would prevent him from
staying by the side of his wife during her last moments on earth. The fact that he Went into
hiding, ashamed or fearful of the death of his wife is an indication of his guilt. Further, the
burning in the dress and body of Gina gives support to the claim of the prosecution that she was
burned. Paul Michael testified that the hands of his mother were tied at the back. Jhun Avila
testified that the branches and leaves of the atienza tree were burned. They tend to show that
Gina was tied at the back, placed near the trunk of a tree and burned. Being tied, only the front
portion of her body would naturally be burned. The tendency of one who burns himself is to burn
his whole body and not stay stationary in one position so that both his front and back portions of
his body would be burned. In this case, however, only the front portion of Ginas dress and body
were burned as well as the branches and leaves of the atienza tree. That indicates that while the
victim was burning, she remained stationary in the place where she was tied.25
Accordingly, the trial court convicted the accused-appellant as follows:
WHEREFORE, the Court finds the accused Rolando Mendoza guilty beyond reasonable doubt
of the crime of Parricide, defined and penalized under Article 246 of the Revised Penal Code and
hereby sentences him to a penalty of reclusion perpetua, and to indemnify the parents of the
victim Maria Gina Avila-Mendoza the sum of P88,000.00 representing the amount of hospital
bills of the victim. No cost.
G.R. No. 96848 January 21, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ALEJANDRO SALOMON Y OLPANGO @ "ALE", @ "BOYET" and FELICIANO
CONGE @ PEPING, accused-appellants.
The Solicitor General for plaintiff-appellee.
Anecio R. Guades for accused-appellants.
CRUZ, J.:
The novel defense in this prosecution for rape is that the physical evidence of the complainant's
violation was caused not by the male organ but by the five fingers of one of the appellants that
were thrust into her vagina in anger and not lust. The defense faults the trial judge for giving
credence to the complainant. It avers that her testimony should not have been accepted at all
because she is admittedly a mental retardate and therefore unreliable per se.
These curious arguments will not be dismissed out of hand by this Court. The appellants are
entitled to be heard in their defense, no less than the prosecution, although neither party is
necessarily to be believed if its evidence falls short of the strict standards of the law.
The trial court found that on October 11, 1987, while Sylvia Soria, a
20-year old mental retardate, was walking along the Maharlika Highway at Casabahan, Gandara,
Samar, Alejandro Salomon and Feliciano Conge, who were apparently waiting for her, accosted
her and forcibly took her to the
ricefield some ten meters away. There she was raped by Salomon with Conge's assistance. On
her way home, she met her brother Senecio, to whom she related her ordeal. The two of them
reported her rape to their father. That same night, the family walked the three-kilometer distance
to the police station, where Restituto Soria signed a complaint for the rape of his daughter by
Salomon and Conge.1 Sylvia was medically examined at the Gandara General Hospital by Dr.
Susan Tanseco, who issued the following certificate:2
A physical examination has been done on Miss Sylvia Soria, 20 years of age, a
resident of Brgy. Casab-ahan, Gandara, Samar. P.E. showed a single, linear,
laceration on the labia minora at 6:00 o'clock position. There are isolated
erythematous areas on both thighs. There is also the presence of sandy particles
on the genital area. Speculum exam, however, showed negative findings.
Three days later, Salomon and Feliciano could no longer be found. It was only after a four-month
search that they were arrested in Aguado, Plaser, Masbate, from where, after being detained there
for one month, they were taken back to Samar.3 Following a protracted investigation, an
information for rape was filed against them on August 9, 1988, with the Regional Trial Court in
Calbayog City.4
The principal witness for the prosecution was Sylvia Soria herself, who recounted in detail the
manner of her ravishment by Salomon with the help of his co-accused Conge. She described how
she was dragged to the ricefield by the two accused and there undressed against her will. As
Conge spread and pinned her legs, Salomon mounted and penetrated her, although with difficulty
because she was still a virgin. She felt pain in her vagina and "something slippery." She could
not cry out or repel the attack because the two were stronger than she and Conge was holding a
bolo.5 After her rape, Salomon sucked and twisted her nipples and demanded that he suck his
penis. Her low mentality was demonstrated in her angry testimony of her refusal: "The devil with
him, it is not an icedrop."6
The prosecution presented several other witnesses, 7 including Dr. Tanseco, who affirmed her
medical certificate of the complainant's examination. On cross-examination, she declared that the
laceration in Sylvia's vagina could have been caused by penetration of a blunt instrument such as
an average-sized penis.8
The two accused flatly denied the charge against them. Conge swore that on the night in
question, Sylvia arrived at the highway and loudly demanded a lamp from the people in Epifanio
de Guzman's house. He approached her and said there was no lamp to spare, whereupon, as he
turned his back to leave, she hit him in the neck with a piece of wood, causing him to stagger. In
swift reaction, he caught Sylvia by the waist and pushed her to the ground and as she lay there
exposed (she was not wearing any underwear), he angrily shoved his five fingers into her vagina.
Sylvia cried out at the top of her voice. Fearing that her relatives might come, he withdrew his
hands and immediately left the place.9
Salomon corroborated his co-accused. He testified that he saw the whole incident, being then
about three-arms length away from the highway. 10 De Guzman agreed, saying that he was also
in the yard of his house at the time, and playing his guitar, when the encounter occurred. 11
Both Salomon and Conge also protested that they had not gone to Masbate in order to escape as
the trial court held. They pointed out that they were in fact investigated by the police the day
following the alleged incident but no action was taken against them. 12 The truth, they said, was
that they had gone to Masbate to buy two horses on instructions from Salomon's father, Epifanio,
who had given them P3,000.00 for this purpose. 13
Judge Ricardo A. Navidad disbelieved the accused and found them guilty as charged. As
conspirators, they were each sentenced to reclusion perpetua and held solidarily liable to the
complainant for P30,000.00 as civil indemnity, P22,000.00 as moral damages, P5,000.00 as
exemplary damages, and P5,000.00 as attorney's fees. They were also ordered to pay the costs.
14
In the appellants' brief (incorrectly denominated as a Petition for Review), the defense suggests
that the testimony of Sylvia Soria is flawed because she is an insane person who was confined at
the National Mental Hospital a few months before the alleged incident. 15 It is also argued that
her testimony was fabricated at the instance of her father, who had a bone to pick with Salomon's
father. The appellants insist that their own version of the incident is more plausible and should
not have been rejected by the trial court in view of the constitutional presumption of innocence in
their favor.
A mental retardate is not for this reason alone disqualified from being a witness. As in the case
of other witnesses, acceptance of his testimony depends on its nature and credibility or,
otherwise put, the quality of his perceptions and the manner he can make them known to the
court.16 Thus, in People v. Gerones,17 the Court accepted the testimony of a rape victim
notwithstanding that she had the mentality of a nine or ten-year old "because she was able to
communicate her ordeal... clearly and consistently." In the case of People vs. Rondina, this Court
declared:
The testimony of the offended party herself was especially telling and credible
despite the fact that she was somewhat mentally deficient, as the trial court
noticed. Although she was really of limited intelligence, the complainant
nevertheless did not forget the harrowing experience she suffered during that
frightful night in the bushes when the three men seared her memory with the lust
they forced upon her. The tale she narrated in court was not woven out of sheer
imagination but born in anguish and remembered with pain and as plain an
unembellished as the simple life she led. If she spoke in forthright language at the
trial, it was because she was speaking the truth of that horrible ravishment she
could not push out of her mind.
In the case before us, the trial court noted that although Sylvia's speech was slurred and it was
necessary at times to ask her leading questions, "her testimony was positive, clear, plain,
coherent and credible." Her mental condition did not vitiate her credibility. We also believe, as
we have observed often enough in many cases 18 that a woman will not expose herself to the
humiliation of a rape trail, with its attendant publicity and the morbid curiosity it will arouse,
unless she has been truly wronged and seeks atonement for her abuse.
The defense points to a supposed hostility between Sylvia's and Salomon's respective fathers due
to a conflict over a piece of land and the administrative charge Epifanio filed against Restituto
when they were both teaching at the local school. It suggests that this was the reason for Sylvia's
false charge against Salomon, who has simply been caught in the crossfire, as it were, between
Restituto and Epifanio.
The connection is far-fetched. It is unnatural for a parent to use his offspring as an engine of
malice, especially if it will subject a daughter to embarassment and even stigma, as in this case.
There is no evidence that Sylvia's father is an unnatural parent. Besides, the enmity itself is in the
view of the Court not deep enough to provoke the charge, assuming that Restituto Soria was
willing to use his daughter to falsely accuse his enemy's son. Significantly, the complaint was
filed by Restituto against the son and not the father who was his real adversary.
The lack of a finding of spermatozoa during Sylvia's medical examination did not conclusively
establish an absence thereof because the examining doctor simply did not have the necessary
equipment to make a more thorough report. 19 In fact, she suggested another examination at the
Calbayog General Hospital.20 At any rate, we have held that the absence of spermatozoa in the
complainant's vagina does not negate the commission of rape; there may be a valid explanation
for such absence, as when the semen may have been washed away or when the rapist failed to
ejaculate.21
The appellants decry the trial judge's conclusion that they had gone to Masbate to escape, but it
appears that this was really their intention. In the first place, it is not true that they were
investigated before they left, for the fact is Salomon's father stopped the investigation on the
ground that there was no lawyer to represent them.22 It is also noted that Salomon used another
name in Masbate and called himself Boyet instead of Ale, his real nickname.23 Salomon and
Conge traveled from place to place in that province but were not able to buy a single horse
during the four months that they were there. Instead, they used the P3,000.00 Salomon's father
had given them not only for their daily needs but also "in dancing and drinking," as Conge put
it.24 Well indeed has it been said that "wicked flee when no man pursueth but the innocent are as
bold as a lion." The appellants' trip to Masbate was unmistakably a flight from justice.
And now let us consider the interesting defense of what we may call Sylvia's "manual rape" for
lack of a more descriptive term. Admitting the laceration in Sylvia's vagina, Salomon
nevertheless maintains that it was caused not by his penis but by Conge's fingers. Conge's
purpose was to punish her and to disable her and thus prevent her from hitting him again.
The trouble with this defense is that it is too comical for words. It looks like a bawdy-house skit
featuring a mad avenger and his naughty fingers. Besides, the two accused and De Guzman have
a confused recollection of how this remarkable incident happened, the first perhaps in the annals
of Philippine jurisprudence.
Conge declared in his affidavit that Sylvia hit him only once and then swore on direct
examination that he was hit twice, whereas both Salomon De Guzman swore he was hit only
once.25 Salomon and Conge said that Sylvia was wearing pants but De Guzman insisted with
equal certainty that it was a skirt.26 Salomon said Sylvia's pants were pulled down to her knees,
but Conge declared that she was completely disrobed, then said the pants came down only to her
ankles.27 Conge first said his fingers were spread when they thrust them inside Sylvia's vagina
but, sensing the trial court's disbelief, recanted and said he put his fingers together in the shape of
a cone before plunging them into Sylvia's bared organ.28
We are satisfied with the findings of the trial court that the appellants, in conspiracy with each
other, committed the crime of rape upon Sylvia Soria, with Salomon actually violating her as
Conge helped restrain her while also frightening her with his bolo. The crime was committed
with force and intimidation, and worse, against a mental retardate, who fortunately was
nevertheless able to narrate the details of her outrage. The theory of the defense is absurd. The
trial court was correct in rejecting it. The assessment of the evidence, especially the credibility of
the witnesses, is the primary function of the judge presiding at the trial. We defer to the findings
of the trial court in the case at bar, there being no showing that they were reached without basis.
The Court cannot conclude this opinion without remarking on the extraordinary lengths to which
an accused will go to falsify the truth and evade the sanctions of the law. The defense in this case
is illustrative of such desperation. What the appellants have not considered is that the Court is
not without experience in detecting falsehood and should not have been expected to be deluded
by the ridiculous story they blandly submitted. Counsel should remember that gullibility is not
one of the traits of this Court.
WHEREFORE, the appeal is DISMISSED. The decision of the trial court is AFFIRMED, except
for the award of moral, exemplary, and actual damages and attorney's fees, which were
disallowed. The civil indemnity is retained at P30,000.00. Costs against the appellants
G.R. No. 143340 August 15, 2001
LILIBETH SUNGA-CHAN and CECILIA SUNGA, petitioners,
vs.
LAMBERTO T. CHUA, respondent.
GONZAGA-REYES, J.:
Before us is a petition for review on certiorari under Rule 45 of the Rules of Court of the
Decision1 of the Court of Appeals dated January 31, 2000 in the case entitled "Lamberto T.
Chua vs. Lilibeth Sunga Chan and Cecilia Sunga" and of the Resolution dated May 23, 2000
denying the motion for reconsideration of herein petitioners Lilibeth Sunga and Cecilia Sunga
(hereafter collectively referred to as petitioners).
The pertinent facts of this case are as follows:
On June 22, 1992, Lamberto T. Chua (hereafter respondent) filed a complaint against Lilibeth
Sunga Chan (hereafter petitioner Lilibeth) and Cecilia Sunga (hereafter petitioner Cecilia),
daughter and wife, respectively of the deceased Jacinto L. Sunga (hereafter Jacinto), for
"Winding Up of Partnership Affairs, Accounting, Appraisal and Recovery of Shares and
Damages with Writ of Preliminary Attachment" with the Regional Trial Court, Branch 11,
Sindangan, Zamboanga del Norte.
Respondent alleged that in 1977, he verbally entered into a partnership with Jacinto in the
distribution of Shellane Liquefied Petroleum Gas (LPG) in Manila. For business convenience,
respondent and Jacinto allegedly agreed to register the business name of their partnership,
SHELLITE GAS APPLIANCE CENTER (hereafter Shellite), under the name of Jacinto as a
sole proprietorship. Respondent allegedly delivered his initial capital contribution of
P100,000.00 to Jacinto while the latter in turn produced P100,000.00 as his counterpart
contribution, with the intention that the profits would be equally divided between them. The
partnership allegedly had Jacinto as manager, assisted by Josephine Sy (hereafter Josephine), a
sister of the wife respondent, Erlinda Sy. As compensation, Jacinto would receive a manager's
fee or remuneration of 10% of the gross profit and Josephine would receive 10% of the net
profits, in addition to her wages and other remuneration from the business.
Allegedly, from the time that Shellite opened for business on July 8, 1977, its business operation
went quite and was profitable. Respondent claimed that he could attest to success of their
business because of the volume of orders and deliveries of filled Shellane cylinder tanks supplied
by Pilipinas Shell Petroleum Corporation. While Jacinto furnished respondent with the
merchandise inventories, balance sheets and net worth of Shellite from 1977 to 1989, respondent
however suspected that the amount indicated in these documents were understated and
undervalued by Jacinto and Josephine for their own selfish reasons and for tax avoidance.
Upon Jacinto's death in the later part of 1989, his surviving wife, petitioner Cecilia and
particularly his daughter, petitioner Lilibeth, took over the operations, control, custody,
disposition and management of Shellite without respondent's consent. Despite respondent's
repeated demands upon petitioners for accounting, inventory, appraisal, winding up and
restitution of his net shares in the partnership, petitioners failed to comply. Petitioner Lilibeth
allegedly continued the operations of Shellite, converting to her own use and advantage its
properties.
On March 31, 1991, respondent claimed that after petitioner Lilibeth ran out the alibis and
reasons to evade respondent's demands, she disbursed out of the partnership funds the amount of
P200,000.00 and partially paid the same to respondent. Petitioner Lilibeth allegedly informed
respondent that the P200,000.00 represented partial payment of the latter's share in the
partnership, with a promise that the former would make the complete inventory and winding up
of the properties of the business establishment. Despite such commitment, petitioners allegedly
failed to comply with their duty to account, and continued to benefit from the assets and income
of Shellite to the damage and prejudice of respondent.
On December 19, 1992, petitioners filed a Motion to Dismiss on the ground that the Securities
and Exchange Commission (SEC) in Manila, not the Regional Trial Court in Zamboanga del
Norte had jurisdiction over the action. Respondent opposed the motion to dismiss.
On January 12, 1993, the trial court finding the complaint sufficient in from and substance
denied the motion to dismiss.
On January 30, 1993, petitioners filed their Answer with Compulsory Counter-claims,
contending that they are not liable for partnership shares, unreceived income/profits, interests,
damages and attorney's fees, that respondent does not have a cause of action against them, and
that the trial court has no jurisdiction over the nature of the action, the SEC being the agency that
has original and exclusive jurisdiction over the case. As counterclaim, petitioner sought
attorney's fees and expenses of litigation.
On August 2, 1993, petitioner filed a second Motion to Dismiss this time on the ground that the
claim for winding up of partnership affairs, accounting and recovery of shares in partnership
affairs, accounting and recovery of shares in partnership assets/properties should be dismissed
and prosecuted against the estate of deceased Jacinto in a probate or intestate proceeding.
On August 16, 1993, the trial denied the second motion to dismiss for lack of merit.
On November 26, 1993, petitioners filed their Petition for Certiorari, Prohibition and Mandamus
with the Court of Appeals docketed as CA-G.R. SP No. 32499 questioning the denial of the
motion to dismiss.
On November 29, 1993, petitioners filed with the trial court a Motion to Suspend Pre-trial
Conference.
On December 13, 1993, the trial court granted the motion to suspend pre-trial conference.
On November 15, 1994, the Court of Appeals denied the petition for lack of merit.
On January 16, 1995, this Court denied the petition for review on certiorari filed by petitioner,
"as petitioners failed to show that a reversible error was committed by the appellate court."2
On February 20, 1995, entry of judgment was made by the Clerk of Court and the case was
remanded to the trial court on April 26, 1995.
On September 25, 1995, the trial court terminated the pre-trial conference and set the hearing of
the case of January 17, 1996. Respondent presented his evidence while petitioners were
considered to have waived their right to present evidence for their failure to attend the scheduled
date for reception of evidence despite notice.
On October 7, 1997, the trial court rendered its Decision ruling for respondent. The dispositive of
the Decision reads:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the
defendants, as follows:
(1) DIRECTING them to render an accounting in acceptable form under
accounting procedures and standards of the properties, assets, income and profits
of the Shellite Gas Appliance Center Since the time of death of Jacinto L. Sunga,
from whom they continued the business operations including all businesses
derived from Shellite Gas Appliance Center, submit an inventory, and appraisal of
all these properties, assets, income, profits etc. to the Court and to plaintiff for
approval or disapproval;
(2) ORDERING them to return and restitute to the partnership any and all
properties, assets, income and profits they misapplied and converted to their own
use and advantage the legally pertain to the plaintiff and account for the properties
mentioned in pars. A and B on pages 4-5 of this petition as basis;
(3) DIRECTING them to restitute and pay to the plaintiff ½ shares and interest of
the plaintiff in the partnership of the listed properties, assets and good will (sic) in
schedules A, B and C, on pages 4-5 of the petition;
(4) ORDERING them to pay the plaintiff earned but unreceived income and
profits from the partnership from 1988 to May 30, 1992, when the plaintiff
learned of the closure of the store the sum of P35,000.00 per month, with legal
rate of interest until fully paid;
(5) ORDERING them to wind up the affairs of the partnership and terminate its
business activities pursuant to law, after delivering to the plaintiff all the ½
interest, shares, participation and equity in the partnership, or the value thereof in
money or money's worth, if the properties are not physically divisible;
(6) FINDING them especially Lilibeth Sunga-Chan guilty of breach of trust and
in bad faith and hold them liable to the plaintiff the sum of P50,000.00 as moral
and exemplary damages; and,
(7) DIRECTING them to reimburse and pay the sum of P25,000.00 as attorney's
(sic) and P25,000.00 as litigation expenses.
NO special pronouncements as to COSTS.
SO ORDERED."3
On October 28, 1997, petitioners filed a Notice of Appeal with the trial court, appealing the case
to the Court of Appeals.
On January 31, 2000, the Court of Appeals dismissed the appeal. The dispositive portion of the
Decision reads:
"WHEREFORE, the instant appeal is dismissed. The appealed decision is AFFIRMED in
all respects."4
On May 23, 2000, the Court of Appeals denied the motion for reconsideration filed by petitioner.
Hence, this petition wherein petitioner relies upon following grounds:
"1. The Court of Appeals erred in making a legal conclusion that there existed a
partnership between respondent Lamberto T. Chua and the late Jacinto L. Sunga upon the
latter'' invitation and offer and that upon his death the partnership assets and business
were taken over by petitioners.
2. The Court of Appeals erred in making the legal conclusion that laches and/or
prescription did not apply in the instant case.
3. The Court of Appeals erred in making the legal conclusion that there was competent
and credible evidence to warrant the finding of a partnership, and assuming arguendo
that indeed there was a partnership, the finding of highly exaggerated amounts or values
in the partnership assets and profits."5
Petitioners question the correctness of the finding of the trial court and the Court of Appeals that
a partnership existed between respondent and Jacinto from 1977 until Jacinto's death. In the
absence of any written document to show such partnership between respondent and Jacinto,
petitioners argues that these courts were proscribes from hearing the testimonies of respondent
and his witness, Josephine, to prove the alleged partnership three years after Jacinto's death. To
support this argument, petitioners invoke the "Dead Man's Statute' or "Survivorship Rule" under
Section 23, Rule 130 of the Rules of Court that provides:
"SEC. 23. Disqualification by reason of death or insanity of adverse party. – Parties or
assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an
executor or administrator or other representative of a deceased person, or against a person
of unsound mind, upon a claim or demand against the estate of such deceased person, or
against such person of unsound mind, cannot testify as to any matter of fact occurring
before the death of such deceased person or before such person became of unsound
mind."
Petitioners thus implore this Court to rule that the testimonies of respondent and his alter ego,
Josephine, should not have been admitted to prove certain claims against a deceased person
(Jacinto), now represented by petitioners.
We are not persuaded.
A partnership may be constituted in any form, except where immovable property of real rights
are contributed thereto, in which case a public instrument shall necessary.6 Hence, based on the
intention of the parties, as gathered from the facts and ascertained from their language and
conduct, a verbal contract of partnership may arise.7 The essential profits that must be proven to
that a partnership was agreed upon are (1) mutual contribution to a common stock, and (2) a joint
interest in the profits.8 Understandably so, in view of the absence of the written contract of
partnership between respondent and Jacinto, respondent resorted to the introduction of
documentary and testimonial evidence to prove said partnership. The crucial issue to settle then
is to whether or not the "Dead Man's Statute" applies to this case so as to render inadmissible
respondent's testimony and that of his witness, Josephine.
The "Dead Man's Statute" provides that if one party to the alleged transaction is precluded from
testifying by death, insanity, or other mental disabilities, the surviving party is not entitled to the
undue advantage of giving his own uncontradicted and unexplained account of the transaction.9
But before this rule can be successfully invoked to bar the introduction of testimonial evidence, it
is necessary that:
"1. The witness is a party or assignor of a party to case or persons in whose behalf a case
in prosecuted.
2. The action is against an executor or administrator or other representative of a deceased
person or a person of unsound mind;
3. The subject-matter of the action is a claim or demand against the estate of such
deceased person or against person of unsound mind;
4. His testimony refers to any matter of fact of which occurred before the death of such
deceased person or before such person became of unsound mind."10
Two reasons forestall the application of the "Dead Man's Statute" to this case.
First, petitioners filed a compulsory counterclaim11 against respondents in their answer before
the trial court, and with the filing of their counterclaim, petitioners themselves effectively
removed this case from the ambit of the "Dead Man's Statute".12 Well entrenched is the rule that
when it is the executor or administrator or representatives of the estates that sets up the
counterclaim, the plaintiff, herein respondent, may testify to occurrences before the death of the
deceased to defeat the counterclaim.13 Moreover, as defendant in the counterclaim, respondent
is not disqualified from testifying as to matters of facts occurring before the death of the
deceased, said action not having been brought against but by the estate or representatives of the
deceased.14
Second, the testimony of Josephine is not covered by the "Dead Man's Statute" for the simple
reason that she is not "a party or assignor of a party to a case or persons in whose behalf a case is
prosecuted." Records show that respondent offered the testimony of Josephine to establish the
existence of the partnership between respondent and Jacinto. Petitioners' insistence that
Josephine is the alter ego of respondent does not make her an assignor because the term
"assignor" of a party means "assignor of a cause of action which has arisen, and not the assignor
of a right assigned before any cause of action has arisen."15 Plainly then, Josephine is merely a
witness of respondent, the latter being the party plaintiff.
We are not convinced by petitioners' allegation that Josephine's testimony lacks probative value
because she was allegedly coerced coerced by respondent, her brother-in-law, to testify in his
favor, Josephine merely declared in court that she was requested by respondent to testify and that
if she were not requested to do so she would not have testified. We fail to see how we can
conclude from this candid admission that Josephine's testimony is involuntary when she did not
in any way categorically say that she was forced to be a witness of respondent.
Also, the fact that Josephine is the sister of the wife of respondent does not diminish the value of
her testimony since relationship per se, without more, does not affect the credibility of
witnesses.16
Petitioners' reliance alone on the "Dead Man's Statute" to defeat respondent's claim cannot
prevail over the factual findings of the trial court and the Court of Appeals that a partnership was
established between respondent and Jacinto. Based not only on the testimonial evidence, but the
documentary evidence as well, the trial court and the Court of Appeals considered the evidence
for respondent as sufficient to prove the formation of partnership, albeit an informal one.
Notably, petitioners did not present any evidence in their favor during trial. By the weight of
judicial precedents, a factual matter like the finding of the existence of a partnership between
respondent and Jacinto cannot be inquired into by this Court on review.17 This Court can no
longer be tasked to go over the proofs presented by the parties and analyze, assess and weigh
them to ascertain if the trial court and the appellate court were correct in according superior
credit to this or that piece of evidence of one party or the other.18 It must be also pointed out that
petitioners failed to attend the presentation of evidence of respondent. Petitioners cannot now
turn to this Court to question the admissibility and authenticity of the documentary evidence of
respondent when petitioners failed to object to the admissibility of the evidence at the time that
such evidence was offered.19
With regard to petitioners' insistence that laches and/or prescription should have extinguished
respondent's claim, we agree with the trial court and the Court of Appeals that the action for
accounting filed by respondents three (3) years after Jacinto's death was well within the
prescribed period. The Civil Code provides that an action to enforce an oral contract prescribes
in six (6) years20 while the right to demand an accounting for a partner's interest as against the
person continuing the business accrues at the date of dissolution, in the absence of any contrary
agreement.21 Considering that the death of a partner results in the dissolution of the
partnership22 , in this case, it was Jacinto's death that respondent as the surviving partner had the
right to an account of his interest as against petitioners. It bears stressing that while Jacinto's
death dissolved the partnership, the dissolution did not immediately terminate the partnership.
The Civil Code23 expressly provides that upon dissolution, the partnership continues and its
legal personality is retained until the complete winding up of its business, culminating in its
termination.24
In a desperate bid to cast doubt on the validity of the oral partnership between respondent and
Jacinto, petitioners maintain that said partnership that had initial capital of P200,000.00 should
have been registered with the Securities and Exchange Commission (SEC) since registration is
mandated by the Civil Code, True, Article 1772 of the Civil Code requires that partnerships with
a capital of P3,000.00 or more must register with the SEC, however, this registration requirement
is not mandatory. Article 1768 of the Civil Code25 explicitly provides that the partnership
retains its juridical personality even if it fails to register. The failure to register the contract of
partnership does not invalidate the same as among the partners, so long as the contract has the
essential requisites, because the main purpose of registration is to give notice to third parties, and
it can be assumed that the members themselves knew of the contents of their contract.26 In the
case at bar, non-compliance with this directory provision of the law will not invalidate the
partnership considering that the totality of the evidence proves that respondent and Jacinto
indeed forged the partnership in question.
WHEREFORE, in view of the foregoing, the petition is DENIED and the appealed decision is
AFFIRMED.
G.R. No. 96405 June 26, 1996
BALDOMERO INCIONG, JR., petitioner,
vs.
COURT OF APPEALS and PHILIPPINE BANK OF COMMUNICATIONS, respondents.
ROMERO, J.:p
This is a petition for review on certiorari of the decision of the Court of Appeals affirming that
of the Regional Trial Court of Misamis Oriental, Branch 18,1 which disposed of Civil Case No.
10507 for collection of a sum of money and damages, as follows:
WHEREFORE, defendant BALDOMERO L. INCIONG, JR. is adjudged
solidarily liable and ordered to pay to the plaintiff Philippine Bank of
Communications, Cagayan de Oro City, the amount of FIFTY THOUSAND
PESOS (P50,000.00), with interest thereon from May 5, 1983 at 16% per annum
until fully paid; and 6% per annum on the total amount due, as liquidated
damages or penalty from May 5, 1983 until fully paid; plus 10% of the total
amount due for expenses of litigation and attorney's fees; and to pay the costs.
The counterclaim, as well as the cross claim, are dismissed for lack of merit.
SO ORDERED.
Petitioner's liability resulted from the promissory note in the amount of P50,000.00 which he
signed with Rene C. Naybe and Gregorio D. Pantanosas on February 3, 1983, holding
themselves jointly and severally liable to private respondent Philippine Bank of
Communications, Cagayan de Oro City branch. The promissory note was due on May 5, 1983.
Said due date expired without the promissors having paid their obligation. Consequently, on
November 14, 1983 and on June 8, 1984, private respondent sent petitioner telegrams demanding
payment thereof.2 On December 11, 1984 private respondent also sent by registered mail a final
letter of demand to Rene C. Naybe. Since both obligors did not respond to the demands made,
private respondent filed on January 24, 1986 a complaint for collection of the sum of P50,000.00
against the three obligors.
On November 25, 1986, the complaint was dismissed for failure of the plaintiff to prosecute the
case. However, on January 9, 1987, the lower court reconsidered the dismissal order and required
the sheriff to serve the summonses. On January 27, 1987, the lower court dismissed the case
against defendant Pantanosas as prayed for by the private respondent herein. Meanwhile, only
the summons addressed to petitioner was served as the sheriff learned that defendant Naybe had
gone to Saudi Arabia.
In his answer, petitioner alleged that sometime in January 1983, he was approached by his friend,
Rudy Campos, who told him that he was a partner of Pio Tio, the branch manager of private
respondent in Cagayan de Oro City, in the falcata logs operation business. Campos also
intimated to him that Rene C. Naybe was interested in the business and would contribute a
chainsaw to the venture. He added that, although Naybe had no money to buy the equipment, Pio
Tio had assured Naybe of the approval of a loan he would make with private respondent.
Campos then persuaded petitioner to act as a "co-maker" in the said loan. Petitioner allegedly
acceded but with the understanding that he would only be a co-maker for the loan of P50,000.00.
Petitioner alleged further that five (5) copies of a blank promissory note were brought to him by
Campos at his office. He affixed his signature thereto but in one copy, he indicated that he bound
himself only for the amount of P5,000.00. Thus, it was by trickery, fraud and misrepresentation
that he was made liable for the amount of P50,000.00.
In the aforementioned decision of the lower court, it noted that the typewritten figure "-- 50,000 -
-" clearly appears directly below the admitted signature of the petitioner in the promissory note.
3 Hence, the latter's uncorroborated testimony on his limited liability cannot prevail over the
presumed regularity and fairness of the transaction, under Sec. 5 (q) of Rule 131. The lower
court added that it was "rather odd" for petitioner to have indicated in a copy and not in the
original, of the promissory note, his supposed obligation in the amount of P5,000.00 only.
Finally, the lower court held that, even granting that said limited amount had actually been
agreed upon, the same would have been merely collateral between him and Naybe and, therefore,
not binding upon the private respondent as creditor-bank.
The lower court also noted that petitioner was a holder of a Bachelor of Laws degree and a labor
consultant who was supposed to take due care of his concerns, and that, on the witness stand, Pio
Tio denied having participated in the alleged business venture although he knew for a fact that
the falcata logs operation was encouraged by the bank for its export potential.
Petitioner appealed the said decision to the Court of Appeals which, in its decision of August 31,
1990, affirmed that of the lower court. His motion for reconsideration of the said decision having
been denied, he filed the instant petition for review on certiorari.
On February 6, 1991, the Court denied the petition for failure of petitioner to comply with the
Rules of Court and paragraph 2 of Circular
No. 1-88, and to sufficiently show that respondent court had committed any reversible error in its
questioned decision.4 His motion for the reconsideration of the denial of his petition was
likewise denied with finality in the Resolution of April 24, 1991.5 Thereafter, petitioner filed a
motion for leave to file a second motion for reconsideration which, in the Resolution of May 27,
1991, the Court denied. In the same Resolution, the Court ordered the entry of judgment in this
case.6
Unfazed, petitioner filed a notion for leave to file a motion for clarification. In the latter motion,
he asserted that he had attached Registry Receipt No. 3268 to page 14 of the petition in
compliance with Circular No. 1-88. Thus, on August 7, 1991, the Court granted his prayer that
his petition be given due course and reinstated the same.7
Nonetheless, we find the petition unmeritorious.
Annexed to the petition is a copy of an affidavit executed on May 3, 1988, or after the rendition
of the decision of the lower court, by Gregorio Pantanosas, Jr., an MTCC judge and petitioner's
co-maker in the promissory note. It supports petitioner's allegation that they were induced to sign
the promissory note on the belief that it was only for P5,000.00, adding that it was Campos who
caused the amount of the loan to be increased to P50,000.00.
The affidavit is clearly intended to buttress petitioner's contention in the instant petition that the
Court of Appeals should have declared the promissory note null and void on the following
grounds: (a) the promissory note was signed in the office of Judge Pantanosas, outside the
premises of the bank; (b) the loan was incurred for the purpose of buying a second-hand
chainsaw which cost only P5,000.00; (c) even a new chainsaw would cost only P27,500.00; (d)
the loan was not approved by the board or credit committee which was the practice, as it
exceeded P5,000.00; (e) the loan had no collateral; (f) petitioner and Judge Pantanosas were not
present at the time the loan was released in contravention of the bank practice, and (g) notices of
default are sent simultaneously and separately but no notice was validly sent to him.8 Finally,
petitioner contends that in signing the promissory note, his consent was vitiated by fraud as,
contrary to their agreement that the loan was only for the amount of P5,000.00, the promissory
note stated the amount of P50,000.00.
The above-stated points are clearly factual. Petitioner is to be reminded of the basic rule that this
Court is not a trier of facts. Having lost the chance to fully ventilate his factual claims below,
petitioner may no longer be accorded the same opportunity in the absence of grave abuse of
discretion on the part of the court below. Had he presented Judge Pantanosas affidavit before the
lower court, it would have strengthened his claim that the promissory note did not reflect the
correct amount of the loan.
Nor is there merit in petitioner's assertion that since the promissory note "is not a public deed
with the formalities prescribed by law but . . . a mere commercial paper which does not bear the
signature of . . . attesting witnesses," parol evidence may "overcome" the contents of the
promissory note.9 The first paragraph of the parol evidence rule 10 states:
When the terms of an agreement have been reduced to writing, it is considered as
containing all the terms agreed upon and there can be, between the parties and
their successors in interest, no evidence of such terms other than the contents of
the written agreement.
Clearly, the rule does not specify that the written agreement be a public document.
What is required is that the agreement be in writing as the rule is in fact founded on "long
experience that written evidence is so much more certain and accurate than that which rests in
fleeting memory only, that it would be unsafe, when parties have expressed the terms of their
contract in writing, to admit weaker evidence to control and vary the stronger and to show that
the
parties intended a different contract from that expressed in the writing signed by them." 11 Thus,
for the parol evidence rule to apply, a written contract need not be in any particular form, or be
signed by both parties. 12 As a general rule, bills, notes and other instruments of a similar nature
are not subject to be varied or contradicted by parol or extrinsic evidence. 13
By alleging fraud in his answer, 14 petitioner was actually in the right direction towards proving
that he and his co-makers agreed to a loan of P5,000.00 only considering that, where a parol
contemporaneous agreement was the inducing and moving cause of the written contract, it may
be shown by parol evidence. 15 However, fraud must be established by clear and convincing
evidence, mere preponderance of evidence, not even being adequate. 16 Petitioner's attempt to
prove fraud must, therefore, fail as it was evidenced only by his own uncorroborated and,
expectedly, self-serving testimony.
Petitioner also argues that the dismissal of the complaint against Naybe, the principal debtor, and
against Pantanosas, his co-maker, constituted a release of his obligation, especially because the
dismissal of the case against Pantanosas was upon the motion of private respondent itself. He
cites as basis for his argument, Article 2080 of the Civil Code which provides that:
The guarantors, even though they be solidary, are released from their obligation
whenever by some act of the creditor, they cannot be subrogated to the rights,
mortgages, and preferences of the latter.
It is to be noted, however, that petitioner signed the promissory note as a solidary co-maker and
not as a guarantor. This is patent even from the first sentence of the promissory note which states
as follows:
Ninety one (91) days after date, for value received, I/we, JOINTLY and
SEVERALLY promise to pay to the PHILIPPINE BANK OF
COMMUNICATIONS at its office in the City of Cagayan de Oro, Philippines the
sum of FIFTY THOUSAND ONLY (P50,000.00) Pesos, Philippine Currency,
together with interest . . . at the rate of SIXTEEN (16) per cent per annum until
fully paid.
A solidary or joint and several obligation is one in which each debtor is liable for the entire
obligation, and each creditor is entitled to demand the whole obligation. 17 on the other hand,
Article 2047 of the Civil Code states:
By guaranty a person, called the guarantor, binds himself to the creditor to fulfill
the obligation of the principal debtor in case the latter should fail to do so.
If a person binds himself solidarily with the principal debtor, the provisions of
Section 4, Chapter 3, Title I of this Book shall be observed. In such a case the
contract is called a suretyship. (Emphasis supplied.)
While a guarantor may bind himself solidarily with the principal debtor, the liability of a
guarantor is different from that of a solidary debtor. Thus, Tolentino explains:
A guarantor who binds himself in solidum with the principal debtor under the
provisions of the second paragraph does not become a solidary co-debtor to all
intents and purposes. There is a difference between a solidary co-debtor and a
fiador in solidum (surety). The latter, outside of the liability he assumes to pay the
debt before the property of the principal debtor has been exhausted, retains all the
other rights, actions and benefits which pertain to him by reason of the fiansa;
while a solidary co-debtor has no other rights than those bestowed upon him in
Section 4, Chapter 3, Title I, Book IV of the Civil Code. 18
Section 4, Chapter 3, Title I, Book IV of the Civil Code states the law on joint and several
obligations. Under Art. 1207 thereof, when there are two or more debtors in one and the same
obligation, the presumption is that the obligation is joint so that each of the debtors is liable only
for a proportionate part of the debt. There is a solidary liability only when the obligation
expressly so states, when the law so provides or when the nature of the obligation so requires. 19
Because the promissory note involved in this case expressly states that the three signatories
therein are jointly and severally liable, any one, some or all of them may be proceeded against
for the entire obligation. 20 The choice is left to the solidary creditor to determine against whom
he will enforce collection. 21 Consequently, the dismissal of the case against Judge Pontanosas
may not be deemed as having discharged petitioner from liability as well. As regards Naybe,
suffice it to say that the court never acquired jurisdiction over him. Petitioner, therefore, may
only have recourse against his co-makers, as provided by law.
WHEREFORE, the instant petition for review on certiorari is hereby DENIED and the
questioned decision of the Court of Appeals is AFFIRMED. Costs against petitioner.
SO ORDERED.
LUCIO R. CRUZ, Petitioner, vs. COURT OF APPEALS AND CONRADO Q. SALONGA,
Respondents.
DECISION
CRUZ, J.:
The private respondent Conrado Salonga filed a complaint for collection and damages against
petitioner Lucio Cruz ** in the Regional Trial Court of Lucena City alleging that in the course of
their business transactions of buying and selling fish, the petitioner borrowed from him an
amount
of P35,000.00, evidenced by a receipt dated May 4, 1982, marked as Exhibit D, reading as
follows:
5/4/82
Received the amount of Thirty Five Thousand Cash from Rodrigo Quiambao and Conrado
Salonga
on the day of May 4, 1982.
Sgd. Lucio Cruz
The plaintiff claimed that of this amount, only P20,000.00 had been paid, leaving a balance of
P10,000.00; that in August 1982, he and the defendant agreed that the latter would grant him an
exclusive right to purchase the harvest of certain fishponds leased by Cruz in exchange for
certain
loan accommodations; that pursuant thereto, Salonga delivered to Cruz various loans totaling
P15,250.00, evidenced by four receipts and an additional P4,000.00, the receipt of which had
been
lost; and that Cruz failed to comply with his part of the agreement by refusing to deliver the
alleged
harvest of the fishpond and the amount of his indebtedness.
Cruz denied having contracted any loan from Salonga. By way of special defense, he alleged that
he was a lessee of several hectares of a fishpond owned by Nemesio Yabut and that sometime in
May 1982, he entered into an agreement with Salonga whereby the latter would purchase
(pakyaw)
fish in certain areas of the fishpond from May 1982 to August 15, 1982. They also agreed that
immediately thereafter, Salonga would sublease (bubuwisan) the same fishpond for a period of
one year. Cruz admitted having received on May 4, 1982, the amount of P35,000.00 and on
several
occasions from August 15, 1982, to September 30, 1982, an aggregate amount of P15,250.00. He
contended however, that these amounts were received by him not as loans but as consideration
for
their "pakyaw" agreement and payment for the sublease of the fishpond. He added that it was the
private respondent who owed him money since Salonga still had unpaid rentals for the 10-month
period that he actually occupied the fishpond. Cruz also claimed that Salonga owed him an
additional P4,000.00 arising from another purchase of fish from other areas of his leased
fishpond.
In a pre-trial conference held on August 24, 1984, petitioner and private respondent entered into
the following partial stipulation of facts.
COURT:
Plaintiff and defendant, through their respective counsel, during the pre-trial conference, agreed
on the following stipulation of facts:
1) That plaintiff Conrado Salonga entered into a contract of what is commonly called as
'pakyawan' with defendant Lucio Cruz on the fishes contained in a fishpond which
defendant Lucio Cruz was taking care of as lessee from the owner Mr. Nemesio Yabut,
with a verbal contract for the sum of P28,000.00 sometime in May 1982.
2) That because of the necessity, defendant Lucio Cruz at that time needed money, he
requested plaintiff Conrado Salonga to advance the money of not only P28,000.00 but
P35,000.00 in order that Lucio Cruz could meet his obligation with the owner of the
fishpond in question, Mr. Nemesio Yabut;
3) That the amount of P35,000.00 as requested by defendant Lucio Cruz was in fact
delivered by plaintiff Conrado Salonga duly received by the defendant Lucio Cruz, as
evidenced by a receipt dated May 4, 1982, duly signed by defendant Lucio Cruz
4) That pursuant to said contract of "pakyaw," plaintiff Conrado Salonga was able to
harvest the fishes contained in the fishpond administered by Lucio Cruz in August 1982.
5) Immediately thereafter the aforesaid harvest thereon, they entered again on a verbal
agreement whereby plaintiff Conrado Salonga and defendant Lucio Cruz had agreed that
defendant Lucio Cruz will sublease and had in fact subleased the fishpond of Nemesio
Yabut to the herein plaintiff for the amount of P28,000.00 for a period of one year
beginning August 15, 1982.
6) That sometime on June 15, 1983, Mayor Nemesio Yabut, who is the owner of the
fishpond, took back the subject matter of this case from the defendant Lucio Cruz.
7) That defendant Lucio Cruz in compliance with their verbal sublease agreement had
received from the plaintiff Conrado Salonga the following sums of money:
a) P8,000.00 on August 15, 1982 as evidenced by Annex "B" of the Complaint.
(Exh. E);
b) The sum of P500.00 on September 4, 1982, as evidenced by Annex "C" of the
complaint (Exh. F);
c) The sum of P3,000.00 on September 19, 1982 as evidenced by Annex "D" of the
complaint (Exh. G); and
d) The sum of P3,750.00 on September 30, 1982 as Annex "E" of the complaint
(Exh. H).
At the trial, the private respondent claimed that aside from the amounts of P35,000.00 (Exh. D),
P8,000.00 (Exh. E), P500.00 (Exh. F), P3,000.00 (Exh. G) and P3,750.00 (Exh. H) mentioned in
the partial stipulation of facts, he also delivered to the petitioner P28,000.00, which constituted
the
consideration for their "pakyaw" agreement. This was evidenced by a receipt dated May 14,
1982
marked as Exhibit I and reading as follows:
May 14, 1982
Tinatanggap ko ang halagang dalawampu't walong libong piso (P28,000.00) bilang halaga
sa pakyaw nila sa akin sa sangla sa kahong bilang #8 maliit at sa kaputol na sapa sa gawing
may bomba. Ito ay tatagal hanggang Agosto 1982.
SGD. LUCIO CRUZ
Salonga also claimed that he had paid Cruz the amount of P4,000 but the receipt of which had
been
lost and denied being indebted to the petitioner for P4,000 for the lease of other portions of the
fishpond.
For his part, the petitioner testified that he entered into a "pakyaw" and sublease agreement with
the private respondent for a consideration of P28,000 for each transaction. Out of the P35,000 he
received from the private respondent on May 4, 1982, P28,000 covered full payment of their
"pakyaw" agreement while the remaining P7,000 constituted the advance payment for their
sublease agreement. The petitioner denied having received another amount of P28,000 from
Salonga on May 14, 1982. He contended that the instrument dated May 14, 1982 (Exh. I) was
executed to evidence their "pakyaw" agreement and to fix its duration. He was corroborated by
Sonny Viray, who testified that it was he who prepared the May 4, 1982, receipt of P35,000.00,
P28,000 of which was payment for the "pakyaw" and the excess of P7,000.00 as advance for the
sublease.
The trial court ruled in favor of the petitioner and ordered the private respondent to pay the
former
the sum of P3,054.00 plus P1,000.00 as litigation expenses and attorney's fees, and the costs.
Judge
Eriberto U. Rosario, Jr. found that the transactions between the petitioner and the private
respondent were indeed "pakyaw" and sublease agreements, each having a consideration of
P28,000.00, for a total of P56,000.00. Pursuant to these agreements, Salonga paid Cruz
P35,000.00
on May 4, 1982 (Exh. D); P8,000.00 on August 15, 1982 (Exh. E); P500.00 on September 4,
1982
(Exh. F); P3,000 on September 19, 1982; P3,750 on September 30, 1982 (Exh. H) and P4,000.00
on an unspecified date. The trial court noted an earlier admission of the private respondent that
on
an unspecified date he received the sum of P6,000.00 from the petitioner. This amount was
credited
to the petitioner and deducted from the total amount paid by the private respondent. As the
oneyear contract of sublease was pre-terminated two months short of the stipulated period, the
rentals
were correspondingly reduced.
On appeal, the decision of the trial court was reversed. The respondent court instead ordered the
petitioner to pay the private respondent the sum of P24,916.00 plus P1,500.00 as litigation
expenses and attorney's fees, on the following justification:
Exhibit "I" is very clear in its non-reference to the transaction behind Exhibit "D." What only
gives
the semblance that Exhibit "I" is an explanation of the transaction behind Exhibit "D" are the oral
testimonies given by the defendant and his two witnesses. On the other hand, Exhibit "I" is very
clear in its language. Thus, its tenor must not be clouded by any parol evidence introduced by the
defendant. And with the tenor of Exhibit "I" remaining unembellished, the conclusion that
Exhibit
"D" is a mere tentative receipt becomes untenable.
The trial court erred when it relied on the self-serving testimonies of the defendant and his
witness
as against the receipts both parties presented and adopted as their own exhibits. As said before,
Exhibit "I" is very clear in its tenor. And if it is really the intention of Exhibit "I" to explain the
contents of Exhibit "D", such manifestation or intention is not found in the four corners of the
former document.
The respondent court also found that the amounts of P35,000.00, P8,000.00, P500.00, P3,000.00,
P3,750.00 and P4,000.00 were not payments for the "pakyaw" and sublease agreement but for
loans extended by Salonga to Cruz. It also accepted Salonga's claim that the amount of
P28,000.00
was delivered to the petitioner on May 14, 1982, as payment on the "pakyaw" agreement apart
from the P35,000.00 (Exh. D) that was paid on May 4, 1982. However, it agreed that the amount
of P6,000.00 received by the private respondent from the petitioner should be credited in favor of
the latter.
The petitioner is now before this Court, raising the following issues:
1. The public respondent Court of Appeals gravely erred in (1) disregarding parol evidence
to Exhibits "D" and "I" despite the fact that these documents fall under the exceptions
provided for in Sec. 7, Rule 130 of the Rules of Court and thereby in (2) making a sweeping
conclusion that the transaction effected between the private respondent and petitioner is
one of contract of loan and not a contract of lease.
2. Assuming for the sake of argument that exhibits "D" and "I" evidence separate
transactions, the latter document should be disregarded, the same not having been pleaded
as a cause of action.
3. Whether or not the Stipulation of Facts entered into by the parties herein relative to their
executed transactions during the hearing of their case a quo, are binding upon them and as
well as, upon the public respondent?
Our ruling follows:
Rule 130, Sec. 7, of the Revised Rules of Court provides: 1
Sec. 7. Evidence of Written Agreements. — When the terms of an agreement have been reduced
to writing, it is to be considered as containing all such terms, and therefore, there can be,
between
the parties and their successors in interest, no evidence of the terms of the agreement other than
the contents of the writing, except in the following cases:
a) When a mistake or imperfection of the writing or its failure to express the true intent and
agreement of the parties, or the validity of the agreement is put in issue by the pleadings;
b) When there is an intrinsic ambiguity in the writing. The term "agreement" includes wills.
The reason for the rule is the presumption that when the parties have reduced their agreement to
writing they have made such writing the only repository and memorial of the truth, and whatever
is not found in the writing must be understood to have been waived or abandoned. 2
The rule, however, is not applicable in the case at bar, Section 7, Rule 130 is predicated on the
existence of a document embodying the terms of an agreement, but Exhibit D does not contain
such an agreement. It is only a receipt attesting to the fact that on May 4, 1982, the petitioner
received from the private respondent the amount of P35,000. It is not and could have not been
intended by the parties to be the sole memorial of their agreement. As a matter of fact, Exhibit D
does not even mention the transaction that gave rise to its issuance. At most, Exhibit D can only
be considered a casual memorandum of a transaction between the parties and an
acknowledgment
of the receipt of money executed by the petitioner for the private respondent's satisfaction. A
writing of this nature, as Wigmore observed is not covered by the parol evidence rule.
A receipt — i.e. a written acknowledgment, handed by one party to the other, of the manual
custody of money or other personality — will in general fall without the line of the rule; i.e. it is
not intended to be an exclusive memorial, and the facts may be shown irrespective of the terms
of
the receipt. This is because usually a receipt is merely a written admission of a transaction
independently existing, and, like other admissions, is not conclusive. 3
The "pakyaw" was mentioned only in Exhibit I, which also declared the petitioner's receipt of the
amount of P28,000.00 as consideration for the agreement. The petitioner and his witnesses
testified
to show when and under what circumstances the amount of P28,000.00 was received. Their
testimonies do not in any way vary or contradict the terms of Exhibit I. While Exhibit I is dated
May 14, 1982, it does not make any categorical declaration that the amount of P28,000.00 stated
therein was received by the petitioner on that same date. That date may not therefore be
considered
conclusive as to when the amount of P28,000.00 was actually received.
A deed is not conclusive evidence of everything it may contain. For instance, it is not the only
evidence of the date of its execution, nor its omission of a consideration conclusive evidence that
none passed, nor is its acknowledgment of a particular consideration an objection to other proof
of
other and consistent considerations; and, by analogy, the acknowledgment in a deed is not
conclusive of the fact. 4
A distinction should be made between a statement of fact expressed in the instrument and the
terms
of the contractual act. The former may be varied by parol evidence but not the latter. 5 Section 7
of Rule 130 clearly refers to the terms of an agreement and provides that "there can be, between
the parties and their successors in interest, no evidence of the terms of the agreement other than
the contents of the writing."
The statement in Exhibit I of the petitioner's receipt of the P28,000.00 is just a statement of fact.
It is a mere acknowledgment of the distinct act of payment made by the private respondent. Its
reference to the amount of P28,000.00 as consideration of the "pakyaw" contract does not make
it
part of the terms of their agreement. Parol evidence may therefore be introduced to explain
Exhibit
I, particularly with respect to the petitioner's receipt of the amount of P28,000.00 and of the date
when the said amount was received.
Even if it were assumed that Exhibits D and I are covered by the parol evidence rule, its
application
by the Court of Appeals was improper. The record shows that no objection was made by the
private
respondent when the petitioner introduced evidence to explain the circumstances behind the
execution and issuance of the said instruments. The rule is that objections to evidence must be
made as soon as the grounds therefor become reasonably apparent. 6 In the case of testimonial
evidence, the objection must be made when the objectionable question is asked or after the
answer
is given if the objectionable features become apparent only by reason of such answer. 7
For failure of the private respondent to object to the evidence introduced by the petitioner, he is
deemed to have waived the benefit of the parol evidence rule. Thus, in Abrenica v. Gonda, 8 this
Court held:
. . . it has been repeatedly laid down as a rule of evidence that a protest or objection against the
admission of any evidence must be made at the proper time, and that if not so made it will be
understood to have been waived. The proper time to make a protest or objection is when, from
the
question addressed to the witness, or from the answer thereto, or from the presentation of proof,
the inadmissibility of evidence is, or may be inferred.
It is also settled that the court cannot disregard evidence which would ordinarily be incompetent
under the rules but has been rendered admissible by the failure of a party to object thereto. Thus:
. . . The acceptance of an incompetent witness to testify in a civil suit, as well as the allowance of
improper questions that may be put to him while on the stand is a matter resting in the discretion
of the litigant. He may assert his right by timely objection or he may waive it, expressly or by
silence. In any case the option rests with him. Once admitted, the testimony is in the case for
what
it is worth and the judge has no power to disregard it for the sole reason that it could have been
excluded, if it had been objected to, nor to strike it out on its own motion. (Emphasis supplied.) 9
We find that it was error for the Court of Appeals to disregard the parol evidence introduced by
the petitioner and to conclude that the amount of P35,000.00 received on May 4, 1982 by the
petitioner was in the nature of a loan accommodation. The Court of Appeals should have
considered the partial stipulation of facts and the testimonies of the witnesses which sought to
explain the circumstances surrounding the execution of Exhibits D and I and their relation to one
another.
We are satisfied that the amount of P35,000.00 was received by the petitioner as full payment of
their "pakyaw" agreement for P28,000.00 and the remaining P7,000.00 as advance rentals for
their
sublease agreement. The claim that the excess of P7,000.00 was advance payment of the
sublease
agreement is bolstered by the testimony of the private respondent himself when during the cross
examination he testified that:
ATTY. CRUZ:
Q And during the time you were leasing the fishpond, is it not a fact that you pay lease rental to
the defendant?
SALONGA:
A No sir, because I have already advanced him money.
Q What advance money are you referring to?
A Thirty-Five Thousand Pesos (P35,000.00), sir. 10
It was also error to treat the amounts received by the petitioner from August 15, 1982, to
September
30, 1982, from the private respondent as loan accommodations when the partial stipulation of
facts
clearly stated that these were payments for the sublease agreement. The pertinent portions read:
7) That defendant Lucio Cruz in compliance with their verbal sublease agreement had received
from the plaintiff Conrado Salonga the following sums of money: (Emphasis Supplied.)
(a) P8,000.00 on August 15, 1982, as evidenced by Annex "B" of the complaint;
(b) the sum of P500.00 on September 4, 1982, as evidenced by Annex "C" of the complaint;
(c) the sum of P3,000.00 on September 19, 1982, as evidenced by Annex "D" of the complaint;
(d) the sum of P3,750.00 on September 30, 1982, as Annex "E" of the complaint; 11
These admissions bind not only the parties but also the court, unless modified upon request
before
the trial to prevent manifest injustice.
We find, however, that the Court of Appeals did not act in excess of its jurisdiction when it
appreciated Exhibit I despite the fact that it was not pleaded as a cause of action and was
objected
to by the petitioner. According to Rule 10 of the Rules of Court:
Sec. 5. Amendment to conform to or authorize presentation of evidence. — When issues not
raised
by the pleadings are tried by express or implied consent of the parties, they shall be treated in all
respects, as if they had been raised in the pleadings. Such amendment of the pleadings as may be
necessary to cause them to conform to the evidence and to raise these issues may be made upon
motion of any party at any time, even after judgment; but failure to amend does not affect the
result
of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within
the issues made by the pleadings, the court may allow the pleadings to be amended and shall do
so freely when the presentation of the merits of the action will be subserved thereby and the
objecting party fails to satisfy the court that the admission of such evidence would prejudice him
in maintaining his action or defense upon the merits. The court may grant a continuance to
enable
the objecting party to meet such evidence.
In Co Tiamco v. Diaz, 12 the Supreme Court held:
. . . When evidence is offered on a matter not alleged in the pleadings, the court may admit it
even
against the objection of the adverse party, when the latter fails to satisfy the court that the
admission
of the evidence would prejudice him in maintaining his defense upon the merits, and the court
may
grant him continuance to enable him to meet the situation created by the evidence . . .
While it is true that the private respondent did not even file a motion to amend his complaint in
order that it could conform to the evidence presented, this did not prevent the court from
rendering
a valid judgment on the issues proved. As we held in the Co Tiamco case:
. . . where the failure to order an amendment does not appear to have caused a surprise or
prejudice
to the objecting party, it may be allowed as a harmless error. Well-known is the rule that
departures
from procedure may be forgiven when they do not appear to have impaired the substantial rights
of the parties.
The following computation indicates the accountability of the private respondent to the
petitioner:
Exh. D, May 4, 1982 — P35,000.00
Exh. E, Aug. 15, 1982 — 8,000.00
Exh. F, Sept. 4, 1982 — 500.00
Exh. G, Sept. 19, 1982 — 3,000.00
Exh. H, Sept. 30, 1982 — 3,750.00
Lost receipt 4,000.00
————
P54,250.00
Less: (amount received by the
private respondent from the
petitioner) (6,000.00)
————
Total amount paid by the
private respondent to
the petitioner 48,250.00
Amount to be paid by the private respondent to the petitioner:
1. Pakyaw P28,000.00
2. Sublease — 28,000 per annum
Less: 2 months: 4,666 23,334.00
————
Total amount to be paid by
the private respondent to
the petitioner P51,334.00
Total amount to be paid
by the private respondent P51,334.00
Total amount paid by
the private respondent 48,250.00
————
Deficiency in the amount
paid by the private respondent P3,084.00
ACCORDINGLY, the decision of the respondent Court of Appeals is REVERSED and that of
the
Regional Trial Court of Laguna AFFIRMED, with the modification that the private respondent
shall pay the petitioner the sum of P3,084.00 instead of P3,054.00, plus costs. It is so ordered
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. MARIO TANDOY y LIM,
Defendant-Appellant.
DECISION
CRUZ, J.:
The decision of the Regional Trial Court of Makati, Branch 133 dated October 13, 1987,
convicting
Mario Tandoy of the crime of violation of Art. II, Sec. 4 of Rep. Act No. 6425 known as the
Dangerous Drugs Act of 1972, is before us on appeal.
The information against the accused-appellant read as follows:
That on or about the 27th day of May 1986, in the Municipality of Makati, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused
without
being authorized by law, did then and there willfully, unlawfully and feloniously sell eight (8)
pieces of dried marijuana flowering tops, two (2) pieces of dried marijuana flowering tops and
crushed dried marijuana flowering tops, which are prohibited drug, for and in consideration of
P20.00.
Upon arraignment, Tandoy entered a plea of not guilty. After trial, Judge Buenaventura J.
Guerrero
rendered a decision the dispositive portion of which declared:
WHEREFORE, the Court finds Mario Tandoy y Lim guilty beyond reasonable doubt of
violation of Sec. 4, Art. II, Rep. Act No. 6425, as amended, and is hereby sentenced to life
imprisonment and to pay a fine of P20,000.00 and cost.: nad
The marijuana confiscated in this case is declared confiscated and forfeited and ordered
turned over to the Dangerous Drugs Board for proper disposal.
SO ORDERED.
The accused-appellant raises the following assignment of errors in this appeal:
1. The Court a quo erred in finding accused guilty beyond reasonable doubt of the crime
charged despite lack of evidence to prove that he sold marijuana to the poseur-buyer.
2. The Court a quo erred in admitting in evidence against the accused Exh. "E-2-A" which
is merely a xerox copy of the P10.00 bill allegedly used as buy-bust money.
The evidence of the prosecution may be summarized as follows:
On May 27, 1986, at about 3:30 p.m. Lt. Salido, Jr. of the Makati Police Station dispatched Pfc.
Herino de la Cruz, and Detectives Pablo R. Singayan, Nicanor Candolesas, Luisito de la Cruz,
Estanislao Dalumpines, Antonio Manalastas and Virgilio Padua to conduct a buy-bust operation
at Solchuaga St., Barangay Singkamas, Makati.
The target area was a store along the said street, and Singayan was to pose as the buyer. He stood
alone near the store waiting for any pusher to approach. The other members of the team
strategically positioned themselves. Soon, three men approached Singayan. One of them was the
accused-appellant, who said without preamble: "Pare, gusto mo bang umiskor?" Singayan said
yes. The exchange was made then and there — two rolls/pieces of marijuana for one P10.00 and
two P5.00 bills marked ANU (meaning Anti-Narcotics Unit).
The team then moved in and arrested Tandoy. Manalastas and Candolesas made a body search of
the accused-appellant and took from him the marked money, as well as eight more rolls/foils of
marijuana and crushed leaves.: nad
The arresting officers brought Tandoy to the Office of the Anti-Narcotics Unit, Makati Police
Station, for investigation by Detective Marvin Pajilan. The accused-appellant chose to remain
silent after having been informed of his constitutional rights.
These events were narrated under oath by De la Cruz, Singayan and Pajilan. 1 Microscopic,
chemical and chromotographic examination was performed on the confiscated marijuana by
Raquel P. Angeles, forensic chemist of the National Bureau of Investigation, who later testified
that the findings were positive. The marijuana was offered as an exhibit. 2
As might be expected, the accused-appellant had a different story. His testimony was that from
1:30 to 4:00 p.m. of the day in question, he was playing "cara y cruz" with 15 other persons
along
Solchuaga St. when somebody suddenly said that policemen were making arrests. The players
grabbed the bet money and scampered. However, he and a certain Danny (another "cara y cruz"
player) were caught and taken to the Narcotics Command headquarters in Makati. There they
were
mauled and warned that if they did not point to their fellow pushers, they would rot in jail. The
accused-appellant denied he had sold marijuana to Singayan and insisted the bills taken from him
were the bet money he had grabbed at the "cara y cruz" game. 3
The trial court, which had the opportunity to observe the demeanor of the witnesses and to listen
to their respective testimonies, gave more credence to the statements of the arresting officers.
Applying the presumption that they had performed their duties in a regular manner, it rejected
Tandoy's uncorroborated allegation that he had been manhandled and framed. Tandoy had not
submitted sufficient evidence of his charges, let alone his admission that he had no quarrel with
the peace officers whom he had met only on the day of his arrest.
In People v. Patog, 4 this Court held:
When there is no evidence and nothing to indicate the principal witness for the prosecution was
actuated by improper motives, the presumption is that he was not so actuated and his testimony
is
entitled to full faith and credit.
Tandoy submits that "one will not sell this prohibited drug to another who is a total stranger until
the seller is certain of the identity of the buyer."
The conjecture must be rejected.: nad
In People v. Paco, 5 this Court observed:
Drug-pushing when done on a small level as in this case belongs to that class of crimes that may
be committed at anytime and at any place. After the offer to buy is accepted and the exchange is
made, the illegal transaction is completed in a few minutes. The fact that the parties are in a
public
place and in the presence of other people may not always discourage them from pursuing their
illegal trade as these factors may even serve to camouflage the same. Hence, the Court has
sustained the conviction of drug pushers caught selling illegal drugs in a billiard hall (People v.
Rubio, G.R. No. 66875, June 19, 1986, 142 SCRA 329; People v. Sarmiento, G.R. No. 72141,
January 12, 1987, 147 SCRA 252), in front of a store (People vs. Khan, supra) along a street at
1:45 p.m. (People v. Toledo, G.R. No. 67609, November 22, 1985, 140 SCRA 259), and in front
of a house (People v. Policarpio, G.R. No. 69844, February 23, 1988).
As the Court has also held, "What matters is not an existing familiarity between the buyer and
the
seller but their agreement and the acts constituting the sale and delivery of the marijuana leaves."
6
Under the second assigned error, the accused-appellant invokes the best evidence rule and
questions the admission by the trial court of the xerox copy only of the marked P10.00 bill.
The Solicitor General, in his Comment, correctly refuted that contention thus:
This assigned error centers on the trial court's admission of the P10.00 bill marked money (Exh.
E-2-A) which, according to the appellant, is excluded under the best evidence rule for being a
mere
xerox copy. Apparently, appellant erroneously thinks that said marked money is an ordinary
document falling under Sec. 2, Rule 130 of the Revised Rules of Court which excludes the
introduction of secondary evidence except in the five (5) instances mentioned therein.:-cralaw
The best evidence rule applies only when the contents of the document are the subject of inquiry.
Where the issue is only as to whether or not such document was actually executed, or exists, or
in
the circumstances relevant to or surrounding its execution, the best evidence rule does not apply
and testimonial evidence is admissible. (Cf. Moran, op. cit., pp. 76-77; 4 Martin, op. cit., p. 78.)
Since the aforesaid marked money was presented by the prosecution solely for the purpose of
establishing its existence and not its contents, other substitutionary evidence, like a xerox copy
thereof, is therefore admissible without the need of accounting for the original.
Moreover, the presentation at the trial of the "buy-bust money" was not indispensable to the
conviction of the accused-appellant because the sale of the marijuana had been adequately
proved
by the testimony of the police officers. So long as the marijuana actually sold by the
accusedappellant had been submitted as an exhibit, the failure to produce the marked money
itself would
not constitute a fatal omission.
We are convinced from the evidence on record that the prosecution has overcome the
constitutional
presumption of innocence in favor of the accused-appellant with proof beyond reasonable doubt
of his guilt. He must therefore suffer the penalty prescribed by law for those who would visit the
scourge of drug addiction upon our people.
WHEREFORE, the appeal is DISMISSED and the challenged decision AFFIRMED in toto, with
costs against the accused-appellant.: nad
SO ORDERED