SECOND DIVISION

March 8, 2017

G.R. No. 205745

CAPISTRANO DAAYATA, DEXTER SALISI, and BREGIDO MALA CAT, JR., Petitioners

vs
PEOPLE OF THE PHILIPPINES, Respondent

DECISION

LEONEN, J.:

Pride, when unchecked, can waste our youth and cause the forfeiture of all meaning in life, even in
the most inconsequential things: in this case, a basketball game.

Proof beyond reasonable doubt charges the prosecution with the immense responsibility of
establishing moral certainty. The prosecution's case must rise on its own merits, not merely on
relative strength as against that of the defense. Should the prosecution fail to discharge its burden,
acquittal must follow as a matter of course.

This resolves a Petition for Review on Certiorari  under Rule 45,  praying that the assailed May 31,
1 2

2012 Decision  and January 14, 2013 Resolution  of the Court of Appeals in CA-G.R. CR. No. 27951
3 4

be reversed and set aside, and that petitioners be acquitted of the offense of which they are
charged.

The Court of Appeals' assailed Decision affirmed the April 24, 2003 Decision  of the Regional Trial
5

Court of Cagayan de Oro City, Branch 37, which found petitioners guilty beyond reasonable doubt of
frustrated murder. The Court of Appeals' assailed January 14, 2013 Resolution denied petitioners'
motion for reconsideration.

In an Information, petitioners Capistrano Daayata (Daayata), Dexter Salisi (Salisi), and Bregido
Malacat, Jr. (Malacat) were charged with frustrated murder, as follows:

That on December 17, 1995, at about 6:00 [o]'clock in the morning at Zone 3, San Simon, Cagayan
de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, with evident premeditation and taking advantage of their superior strength, conspiring,
confederating together and mutually helping one another, did then and there willfully, unlawfully and
feloniously and with intent to kill, attack, assault[,] box and struck one Rolando 0. Bahian with a
stone and hitting the latter's head and several parts of his body, thereby inflicting injuries[,] to wit:
"Depressed Fracture, Open frontal bone, left, and advised for surgery,["] thus performing all the acts
of execution which would produce the crime of Murder, but nevertheless did not produce it by reason
of some cause independent of the will of the accused, that is, by the timely and able medical
attendance rendered to the said offended party which prevented his death. 6

Upon arraignment, all three accused, now petitioners, pleaded not guilty.  Trial then ensued. 7 8

Five (5) witnesses testified for the prosecution: the offended party, Rolando Bahian (Bahian);
Kagawad Leonardo Abalde (Kagawad Abalde) of Barangay San Simon, Cagayan de Oro City;
Barangay Captain Reynaldo Yafiez (Barangay Captain Yafiez); Dr. Percy H. Arreza (Dr. Arreza) of
the Cagayan de Oro City Hospital; and Dr. John Mata (Dr. Mata), the surgeon who tended to
Bahian. 9

According to the prosecution, on December 16, 1995, at about 6:00 p.m., Bahian went to the house
of Kagawad Abalde.  Bahian recounted to Kagawad Abalde a violent altercation between him and
10

the petitioners in the course of a basketball game earlier that afternoon.  Bahian claimed that Salisi
11

had committed a foul against him, making him fall to the ground.  He complained to the referee and
12

this infuriated Salisi. In response, he threatened Salisi, telling him that "he would just get even with
him."  Malacat heard his threat and positioned himself to punch Bahian. Bahian, however, dodged
13

the blow.  Daayata then came, pointing a gun at Bahian.  Bahian then backed off and pleaded that
14 15

they should not fight as they were friends. 16

Kagawad Abalde advised Bahian to bring the matter to the attention of Barangay Captain Y afiez. 17

Accordingly, the following morning, Bahian and Kagawad Abalde made their way to Barangay
Captain Yafiez' house.  While on their way, they were blocked by petitioners.  Daayata hit Bahian on
18 19

the left part of his chest.  Bahian staggered and fell onto a parked jeep.  Salisi then hit Bahian with a
20 21

stone on the left side of his forehead, causing Bahian to fall to the ground.  While Bahian was lying 22

prostrate on the ground, petitioners boxed and kicked Bahian.  Kagawad Abalde tried his best to get
23

Bahian away but to no avail.  All he could do was to shout for help.  Daayata then poked a gun at
24 25

Bahian, Malacat unsheathed a bolo, and Salisi wielded an iron bar. 26

Barangay Captain Yafiez rushed to the scene.  There, Bahian lay on the ground as Kagawad
27

Abalde tried to ward off his attackers.  Barangay Captain Yafiez shouted to petitioners to
28

stop.  Shortly after, they retreated.  Barangay Captain Yafiez and Kagawad Abalde then brought
29 30

Bahian to Barangay Captain Yafiez' house, and later to Cagayan de Oro City Hospital. 31

Upon examination, Dr. Arreza made the following findings on Bahian: "depressed fracture, open
frontal bone, left."
32

Bahian was noted to have possibly died, if not for the timely medical intervention.  Dr. Mata 33

subsequently performed surgery on Bahian. 34

The defense offered a different version of events. Apart from the three petitioners, it offered the
testimonies of Delfin Yafiez (Delfin),  Rodolfo Yafiez (Rodolfo), Danzon Daayata (Danzon) and
35

Rosemarie Daayata (Rosemarie ). 36

Petitioners Salisi and Malacat claimed that they were having coffee at the house of Vicente Daayata
(Vicente), brother of petitioner Daayata, in the morning of December 17, 1995.  Bahian arrived, 37

together with Kagawad Abalde, and called for Salisi to come out.  When Salisi acceded, Bahian
38

challenged him to a fight and threw the first punch that started a scuffle.  In the course of the melee,
39

Bahian took a swing for Salisi, who ducked, causing Bahian to lose his balance. Bahian then fell on
the pavement and hit his head.  Kagawad Abalde then drew a gun, poked it at Salisi, and threatened
40

to kill him.
41

For his part, petitioner Daayata claimed that he was in his house, some 50 meters away from
Vicente's house when the incident recalled by petitioners Salisi and Malacat transpired.  He rushed
42

to Vicente's house upon hearing a commotion.  There, he saw Bahian and Kagawad Abalde, who
43

was pointing a gun at Malacat. 44

All three (3) petitioners claimed that it was not until an hour after the incident that Barangay Captain
Yafiez arrived.  They also acknowledged that an altercation did take place during a basketball game
45

the day before, or on December 16, 1995.  They added however, that in the evening of December
46

16, while they were on their way home, Bahian waited for them to pass by his house, where he
challenged them to a fight.  Defense witness Rodolfo allegedly pacified Bahian.
47 48

In its Decision  dated April 24, 2003, the Regional Trial Court, Branch 37, Cagayan de Oro City
49

found petitioners guilty beyond reasonable doubt of frustrated murder. The dispositive portion of its
Decision read:

WHEREFORE, premises considered, this Court finds accused Capistrano Daayata, Dexter Salisi,
and Br[e]gido Malacat, Jr., guilty beyond reasonable doubt of the crime of frustrated murder
committed against Rolando Bahian, and they conspired in committing the crime, and, accordingly,
each of the said accused is sentenced to suffer the penalty of imprisonment of nine (9) years of
prision mayor medium as the minimum term to sixteen (16) years of reclusion temporal medium as
the maximum term.

Moreover, all the three accused are sentenced and ordered (1) to pay Rolando Bahian jointly and
severally the sum of Fifty Seven Thousand Pesos (₱57,000.00) by way of reimbursement for the
expenses he incurred for medicines; (2) to pay Rolando Bahian jointly and severally the sum of
Eighty Thousand Pesos (₱80,000.00) for the income that

Rolando Bahian could have earned for two (2) years as a farmer; (3) to pay Rolando Bahian jointly
and severally the sum of Thirty Thousand Pesos (₱30,000.00) by way of moral damages; and (4) to
pay the costs of suit.

SO ORDERED. 50

On appeal, the Court of Appeals sustained the Regional Trial Court's conclusions. It affirmed the
penalty imposed by the Regional Trial Court, but replaced the award of actual damages to temperate
damages amounting to ₱25,000. The Court of Appeals also deleted the award for loss of earning
capacity, there being no proof in support of it. It also awarded ₱20,000 as civil indemnity. The
dispositive portion of its assailed May 31, 2012 Decision  read:
51

WHEREFORE, premises considered, the appealed Decision dated April 24, 2003 of the Regional
Trial Court, Branch 37 of Cagayan de Oro City in Criminal Case No. 96-266 is hereby AFFIRMED as
to the penalty imposed with MODIFICATION as to the award of damages.

All three (3) accused-appellants, CAPISTRANO DAAYATA, DEXTER SALIS[I] and BREGIDO
MALACAT, JR., are ordered to pay jointly and severally Rolando Bahian the following amounts:

1. Php20,000.00 as civil indemnity;

2. Php30,000.00 as moral damages; and

3. Php25,000.00 as temperate damages.

SO ORDERED.  (Emphasis in the original)

52

Following the denial of their Motion for Reconsideration, petitioners filed the present Petition,  where
53

they insist on their version of events. They emphasize several factual details and maintain that they
did not initiate an assault on Bahian. They assert that Bahian sustained the injury on his forehead
through his own fault; thus, they could not be held liable for acting with intent to kill Bahian.

On July 24, 2013, respondent People of the Philippines, through the Office of the Solicitor General,
filed its Comment.  It insisted that it was supposedly improper for this Court to re-evaluate the factual
54

findings of the Regional Trial Court and the Court of Appeals in the context of the present Rule 45
Petition.  Apart from pleading the nature of a Rule 45 Petition, the five (5)-page Comment devoted a
55

singular paragraph to arguing that the positive identification of the petitioners as Bahian's supposed
attackers must prevai1. 56

On May 12, 2014, petitioners filed their Reply,  noting that respondent failed to directly confront the
57

factual issues they had raised.

For resolution is the sole issue of whether petitioners are guilty beyond reasonable doubt of
frustrated murder.

Petitioners seek relief from this Court through a Petition for Review on Certiorari under Rule 45 of
the Rules of Court. It is basic that Rule 45 petitions may only raise pure questions of law,  and that
58

the factual findings of lower courts are generally binding and conclusive on this Court. Still, there are
recognized exceptions permitting this Court to overturn the factual findings with which it is
confronted. These exceptions are:

(1) When the conclusion is a finding grounded entirely on speculation, surmises and conjectures;

(2) When the inference made is manifestly mistaken, absurd or impossible;

(3) Where there is a grave abuse of discretion;

(4) When the judgment is based on a misapprehension of facts;

(5) When the findings of fact are conflicting;

(6) When the Court of Appeals, in making its findings, went beyond the issues of the case and the
same is contrary to the admissions of both appellant and appellee;

(7) When the findings are contrary to those of the trial court;

(8) When the findings of fact are conclusions without citation of specific evidence on which they are
based;
(9) When the facts set forth in the petition as well as in the petitioners' main and reply briefs are not
disputed by the respondents; and

(10) When the findings of fact of the Court of Appeals are premised on the supposed absence of
evidence and contradicted by the evidence on record . 59

Specifically concerning criminal cases, this Court has stated that "in exceptional circumstances, such
as when the trial court overlooked material and relevant matters ... this Court will re-calibrate and
evaluate the factual findings of the [lower courts]."
60

A careful review of this case and of the body of evidence that was available for the Regional Trial
Court's perusal reveals that there has been a gross misapprehension of facts on the part of the
Regional Trial Court and the Court of Appeals. Thus, we reverse and acquit petitioners Capistrano
Daayata, Dexter Salisi, and Bregido Malacat, Jr.

II

The defense points out several facts, which lend greater plausibility to its claim that the possibly fatal
injury sustained by Bahian on his forehead was not inflicted by any of the petitioners, and that
petitioners did not initiate an assault against Bahian. Negating the fact of the alleged perpetrators'
assault and infliction of a potentially fatal injury negates the corpus delicti of the offense charged.

First, it appears that the location where the altercation occurred between Bahian and Kagawad
Abalde, on the one hand, and petitioners, on the other, is not as plain and austere as the
prosecution made it seem. The prosecution merely claimed that Bahian and Kagawad Abalde were
on their way to Barangay Captain Yafiez's house when they were suddenly blocked and assaulted
by petitioners.  However, it was actually settled during trial - consistent with the defense's contention
61

- that the confrontation took place in the vicinity of the house of vicente.
62

This detail does not intrinsically weigh in favor of either the prosecution or the defense. For indeed, it
may simply have been necessary to pass by Vicente's house en route to Barangay Captain Yafiez's
house and, consistent with what the prosecution claimed, that it may have merely been the spot
where Bahian's attackers chose to launch their assault. But while specificity of location may
ultimately be inconsequential to the prosecution's case, it is the genesis of the defense's case. As
the defense asserts, the altercation was precipitated by Bahian and Kagawad Abalde's arrival
outside Vicente's residence, where Bahian then called out and challenged Salisi. 63

Second, while the prosecution painted a picture of a relentless assault that lasted for as much as 30
minutes  - with petitioners supposedly not content with Bahian falling onto a parked jeep, but even
64

attacking him until he lay on the pavement, and thereafter still continuing to punch and kick him 65

- Bahian's "medical certificate showed no injury other than that on [his] forehead." 66

"Physical evidence is evidence of the highest order. It speaks more eloquently than a hundred
witnesses."  They have been characterized as "that mute but eloquent manifestations of truth which
67

rate high in our hierarchy of trustworthy evidence."  Thus, in People v. Vasquez,  this Court refused
68 69

to undiscemingly lend credence to the incriminating assertions of prosecution witnesses as to an

alleged mauling, and stated that "[t]his Court cannot be persuaded by the prosecution's claim of
perpetrati on of physical violence in the absence of any marked physical injuries on the various parts
of the victim's face and body."70
As the defense correctly points out, if the prosecution's assertion of a relentless assault were true,
the greater probability was that Bahian must have been "black and blue all over."  Quite contrary to
71

the sort of physical evidence that a purported relentless and prolonged assault should have
reasonably yielded, however, there was but one injury that Bahian was noted to have sustained.

Third, Bahian himself was noted to have admitted that his head injury was "caused by [him] hitting
the edge of the concrete pavement." As the following excerpt from Bahian's cross-examination
reveals: 72

Q - And on February of 1995, your forehead was operated on by a certain Dr. John Mata, is that
correct?

A- Yes.

Q - And you told Dr. Mata that the wound on your forehead was caused by you hitting the edge of
the concrete pavement, is that correct?

A - Yes, I told him a lie so that I could be treated.

Q - But nobody in the German Doctors told you that you would not be operated if that was caused by
a stone or in a fight?

A- He asked me the reason why I got this injury?

Q-And then?

A - Then I told him the reason how I got this injury.

Q - That you hit the edge of the concrete pavement?

A- Yes.

Q-And that was the first time you talked to him before the operation?

A- Yes.

Q - The first time you talked to him, you lied to him?

A - Yes, I told a lie because I wanted to be operated.  (Citations omitted)

73

As the Court of Appeals has pointed out, it is true that the prosecution has sought to extenuate the
weight of Bahian's admission by having him explain that he only lied to Dr. Mata because otherwise,
"he would not have been admitted to the hospital and his injury would have not been operated
on."  However, even this extenuating explanation does not completely diminish the significance of
74

his admission.

As the same excerpt from Bahian's cross-examination indicated, nobody intimated to Bahian that he
would not have been operated on if his injury arose from a violent altercation. Confronted with this
detail, Bahian never offered a direct response, and instead appeared to have evaded the question.
He merely reiterated that, "Yes, I told a lie because I wanted to be operated."  Thus, the defense's
75

revelation that Bahian's alleged lie was not predicated on a rational basis stands unrefuted.

Moreover, in the present Petition, the defense points out the curious parallelism between, on the one
hand, the admission or otherwise lie made by Bahian to Dr. Mata, and on the other hand, the
defense's main contention that Bahian sustained a head injury through his own fault:

There is no showing that petitioners knew that complainant told his doctor that he hit his head on the
edge of the concrete pavement. They came to know of it only when they heard him admit it on cross-
examination. And yet, that's exactly what they have always been asserting right from the very start,
even during the preliminary investigation, or long before they heard him say it on the witness stand.

It is too much of a coincidence that petitioners and the complainant should say exactly the same
thing, that he hit his head on the edge of the concrete pavement - unless it is true. 76

Finally, several witnesses - both from the defense and the prosecution - have belied the
prosecution's claim that petitioners Daayata, Malacat, and Salisi wielded a gun, a bolo and an iron
bar, respectively.

The most compromising of these witnesses is the prosecution's own, Barangay Captain Yañez. He
categorically stated that he was well in a position to "see or identify if they were armed."  Ultimately,
77

however, his observation was to the contrary:

Q - They were armed or not?

A- Who?

Q - The three of them?

A - I could see or identify if they were armed.

Q - Nobody brought a bolo?

A - When I arrived there, I did not see anybody holding a bolo.

Q - Nobody brought a steel pipe?

A - I have not seen.

Q - You did not see anybody holding a gun?

Q - No.  (Citation omitted)

78

Danzon, a defense witness whom the prosecution never bothered to cross-examine, stated:

Q - Tell us what was that unusual incident all about?

A - What I could say is that: I heard noise outside and because I was watching them, I saw Kag.
Abalde holding a gun pointing upward and I saw Rolando Bahian already wounded on his
face.  (Citation omitted)
79
Two (2) other defense witnesses - Rosemarie and Delfin -were noted to have made the same
observations. 80

III

Conviction in criminal actions demands proof beyond reasonable doubt. Rule 133, Section 2 of the
Revised Rules on Evidence states:

Section 2. Proof beyond reasonable doubt. - In a criminal case, the accused is entitled to an
acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does
not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral
certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.

While not impelling such a degree of proof as to establish absolutely impervious certainty, the
quantum of proof required in criminal cases nevertheless charges the prosecution with the immense
responsibility of establishing moral certainty, a certainty that ultimately appeals to a person's very
conscience. While indeed imbued with a sense of altruism, this imperative is borne, not by a mere
abstraction, but by constitutional necessity:

This rule places upon the prosecution the task of establishing the guilt of an accused, relying on the
strength of its own evidence, and not banking on the weakness of the defense of an accused.
Requiring proof beyond reasonable doubt finds basis not only in the due process clause of the
Constitution, but similarly, in the right of an accused to be "presumed innocent until the contrary is
proved." "Undoubtedly, it is the constitutional presumption of innocence that lays such burden upon
the prosecution." Should the prosecution fail to discharge its burden, it follows, as a matter of course,
that an accused must be acquitted. As explained in Basilio v. People of the Philippines:

We ruled in People v. Ganguso:

An accused has in his favor the presumption of innocence which the Bill of Rights
guarantees.  Unless his guilt is shown beyond reasonable doubt, he must be acquitted. This
1âwphi1

reasonable doubt standard is demanded by the due process clause of the Constitution which
protects the accused from conviction except upon proof beyond reasonable doubt of every fact
necessary to constitute the crime with which he is charged. The burden of proof is on the
prosecution, and unless it discharges that burden the accused need not even offer evidence in his
behalf, and he would be entitled to an acquittal. Proof beyond reasonable doubt does not, of course,
mean such degree of proof as, excluding the possibility of error, produce absolute certainty. Moral
certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.
The conscience must be satisfied that the accused is responsible for the offense charged.

Well-entrenched in jurisprudence is the rule that the conviction of the accused must rest, not on the
weakness of the defense, but on the strength of the prosecution. The burden is on the prosecution to
prove guilt beyond reasonable doubt, not on the accused to prove his innocence.  (Citations
81

omitted)

The details pointed out by the defense reveal how the prosecution failed to establish the moral
certainty and conscientious satisfaction that attends proof of guilt beyond reasonable doubt. While
not per se demonstrating the veracity and blamelessness of the defense's entire version of events,
they nevertheless disclose how the prosecution's case is unable to stand on its own merits.
They cast doubt on whether the complainant and his companion were actually stopped in their tracks
to be assaulted, and support the possibility that they may have instead deliberately intended to bring
themselves to Vicente's house to provoke or challenge one (1) of the petitioners.

They also cast doubt on whether the complainant was relentlessly assaulted, with the specific
purpose of ending his life; whether the ostensible fatal blow was dealt to complainant by one (1) of
the petitioners or was dealt upon him by his own violent imprudence; and whether petitioners had
actually brandished implements for maiming and killing.

Not only do these doubts persist, details disclosed by the prosecution itself - taken together with how
the defense accounted for the events of December 16 and 17, 1995 - demonstrate the dubiety of the
prosecution's claims.

As Bahian himself recalled to Kagawad Abalde, it was he who threatened Salisi that "he would just
get even with him."  By his own recollection too, he acknowledged that it was only upon his
82

utterance of that threat that Malacat and Daayata responded with correlative aggression. He
conceded having been put in a situation where he had to back off. By his own recollection, the clash
between him and petitioners could have ended there, yet it did not. It appears that, rather than letting
the better part of reason and modesty prevail, Bahian elected to make good on his threat to
eventually just get even with his adversaries. Along the way, it even appears that he enlisted the aid
of Kagawad Abalde, whose participation in the clash in the morning of December 17, 1995, as the
defense recounted, was not as a pacifier but also as an aggressor. Unfortunately for Bahian, it
appears that his own hubris and lack of fighting prowess not only prolonged his quarrel, but even
brought him potentially fatal physical harm.

Taking off from the events in the basketball game of December 16, 1995, the prosecution unravelled
a narrative of petitioners' supposed vindictiveness. Yet the contrary is apparent. The confluence of
Bahian's admissions of a prior altercation, his self-issued threat, how he was constrained to desist,
and his own account to Dr. Mata of how he sustained his injury, as well as the glaring dissonance
noted by the defense and backed by physical evidence, demonstrate how the prosecution has fallen
far too short of discharging its burden of proving petitioners' guilt beyond reasonable doubt.

WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals in CA G.R. CR No.

27951 is REVERSED and SET ASIDE. Petitioners Capistrano Daayata, Dexter Salisi, and Bregido
Malacat, Jr. are hereby ACQUITTED for failure of the prosecution to prove their guilt beyond
reasonable doubt. Any amount they each paid by way of a bail bond is ordered RETURNED.

SO ORDERED.
 FIRST DIVISION

April 19, 2017

G.R. No. 202573

BANKARD, INC., Petitioner,
vs.
LUZ P. ALARTE, Respondent.

DECISION

DEL CASTILLO, J.:

This Petition for Review on Certiorari  assails the September 28, 2011 Decision  of the Court of
1 2

Appeals (CA) denying the Petition for Review in CAG. R. SP No. 114345, and its July 4, 2012
Resolution   denying herein petitioner's Motion for Reconsideration   in said case.
3 4

Factual Antecedents

Petitioner Bankard, Inc. (Bankard, now RCBC Bankard Services Corporation) is a duly constituted
domestic corporation doing business as a credit card provider, extending credit accommodations to
its member-cardholders for the purchase of goods and services obtained from Bankard-accredited
business establishments, to be paid later on by the member-cardholders following billing.

In 2007, petitioner filed a collection case against respondent Luz P. Alarte before the Metropolitan
Trial Court of Pasig City (MeTC). The case was docketed as Civil Case No. 13956 and ultimately
assigned to Branch 72. In its Complaint,  petitioner alleged that respondent applied for and was
5

granted credit accommodations under Bankard myDream JCB Card.No. 3562-8688-5155-1006; that
respondent, using the said Bankard myDream JCB credit card, availed herself of credit
acconunodations by "purchasing various products";  that per Statement of Account  dated July 9,
6 7

2006, respondent's credit availments amounted to a total of ₱67,944.82, inclusive of unbilled

mont1Uy installments, charges and penalties or at least the minimum amount due under the credit
card; and that respondent failed and refuses to pay her obligations despite her receipt of a written
demand.8 Thus, it prayed that respondent be ordered to pay the amount of ₱67,944.82, with
interest, attorney's fees equivalent to 25% of the sum due, and costs of suit.

Despite service of summons, respondent failed to file her answer. For this reason, petitioner filed a
Motion to Render Judgment   which was granted.
9

Ruling of the Metropolitan Trial Court

On July 15, 2009, the MeTC issued its Decision   dismissing the case, thus:
10

Inasmuch as this case falls under the Rule on Summary Procedure, judgment shall be rendered as
may be warranted by the facts alleged in the complaint and limited to what was prayed for.

For decision is whether x x x plaintiff is entitled to its claims against herein defendant.

It bears stressing that in civil cases; the party having the burden of proof must establish his case by
preponderance of evidence.  As mentioned in the case of Amoroso vs. Alegre (G.R. No. 142766,
1âwphi1

June 15, 2007), "Preponderance of evidence" is the weight, credit, and value of the aggregate
evidence on either side and is usually considered to be synonymous with the term "greater weight of
the evidence" or "greater weight of the credible evidence." If plaintiff claims a right granted or created
by law, he must prove his claim by competent evidence. He must rely on the strength of his own
evidence and not upon the weakness of that of his opponent.

Seratiny of the pieces of evidence submitted by plaintiff, particularly the single statement of account
dated July 7. 2006, discloses that what were merely reflected therein are the amounts imposed as
late charges and interest charges and interest charges. Nothing in the said document would indicate
the alleged purchases made by defendant. Considering that there is sans [sic] of evidence showing
that defendant made use [sic] plaintiff's credit facilities, it could no [sic] be said then that the amount
of ₱ 67,944.82 alleged to be defendant's outstanding balance was the result of the latter's availment
of plaintiff's credit card.

WHEREFORE, judgment is hereby rendered, DISMISSING herein complaint for lack of

preponderance of evidence.

SO ORDERED. 11

Ruling of the Regional Trial Court

Petitioner appealed before the Regional Trial Court (RTC) which, in a May 6, 2010
Decision,   affirmed the MeTC. It held:
12

In essence, Appellarit argued that the Lower Court erred in dismissing the case on the ground of
insufficiency of evidence. Accordingly, the evidence presented by Appellant is enough to pass the
requirement of preponderance of evidence based on the disputable presumption enunciated under
Rule 131, Section 3 (q) of1he Revised Rules of Court. Appellant added that the account of the
defendant-appellee Luz Ala.rte x x x could not have incurred penalties and interest charges if no
purchases were made thereon. That likewise, Appellee was deemed to have admitted her obligation
when she did not object to the amounts stated on the statement of accounts sent by the Appellant in
the regular course of its business and as well, upon receiving the demand letter dated 03 October
2007 for the payment of Php 67 ,944.82.

A careful review of the Decision appealed from reveals that there really was no clear proof on how
the amount claimed by the Appellant was incurred by the Appellee. This is so because if ever, the
disputable presumption under the Rule only showed to the Court that the statement of accounts
were indeed sent by the Appellant to the Appellee on a "regular basis" but not the details itself of the
purchase transactions showing the fact that Appellee made use of the Appellant's credit facilities up
to the amount claimed together with the imposition of unconsionable interest and penalties as basis
for the grant thereof. In short, the presumed existence of the statement of accounts cannot be
considered as repository of the truth of the facts stated in the single statement of account dated 07
July 2006 presented by the Appellant considering that only the presentation of the detailed purchase
transactions had by the Appellee in using the credit card facilities of the Appellant can show that the
amountt claimed by the latter was actually incurred by the former.

Appellant further argued that the Lower Court should have issued an order setting a clarificatory
hearing to establish the principal amount due and required the plaintiff to submit affidavits on that
matter pursuant to Section 10 of the Rules on Summary Procedure.

Section 10 of the Revised Rules of Summary Procedure speaks of matters that requires [sic]
clarification in the affidavits and position papers which the Court might require the parties through an
order, [sic] it does not in any way speak of the appreciation of evidence by the Court as subject
matter for clarificatory hearing. Be that as it may, the Order of the Lower Court dated 29 April 2009
was enough in giving the Appellant the opportunity to submit supporting details of the monthly
statement to prove its case.

WHEREFORE, premises considered, finding no reversible en-or on [sic] the Decision of the Court a
qou, being supported by substantial evidence as basis thereof, the same is hereby AFFJRMED in
toto. Costs against the Plaintiff-Appellant.

SO ORDERED. 13

Ruling of the Court of Appeals

Petitioner filed a Petition for Review  before the CA docketed as CA-G.R. SP No. 114345. In a
14

September 28, 2011 Decision, however, the CA affirmed the Decisions of the MeTC and RTC. It
held:

Petitioner posits that the RTC erred in sustaining the [MeTC] in dismissing the case for lack of
evidence since it was able to prove its claim by preponderance of evidence.

Section 1, Rule 133 of the Revised Rules of Court provides:

'SECTION 1. Preponderance of evidence, how determined. - In civil cases, the party having the
burden of proof must establish his case by a preponderance of evidence. In determining where the
preponderance or superior weight of evidence on the issues involved lies, the court may consider all
the facts and circumstances of the case, x x x.'

Based on the facts and circumstances in this case, there is indeed no basis for the claim. As aptly
observed by the RTC, there was no clear proof on how the an1ount claimed by petitioner was
incurred by respondent, thus:

x x x           x x x          x x x

A careful review of the Decision appealed from reveals that there really was no clear proof on how
the amount claimed by the Appellant was incurred by the appellee. This is so because if ever, the
disputable presumption under the Rule only showed to the Court that the statement of accounts
were indeed sent by the Appellant to the Appellee on a 'regular basis’ but not the details itself of the
purchase transactions showing the fact that Appellee made use of the Appellant's credit facilities up
to the amount claimed together with the imposition of unconscionable interest and penalties as basis
for the grant thereof In short, the presumed existence of the statement of accounts cannot be
considered as repository of the truth of the facts stated in the single statement of account dated 07
July 2006 presented by the Appellant considering that only the presentation of the detailed purchase
transactions had by the Appellee in using the credit card facilities of the Appellant can show that the
amount claimed by the latter was actually incurred by the former.

x x x           x x x          x x x

Burden of proof is the duty of a party to present evidence to establish his claim or defense by the
amount of evidence required by law, which is preponderance of evidence in civil cases. As a rule, he
who alleges the affirmative of the issue has the burden of proof. Here, the burden of proof lies with
the petitioner. As such, it has the obligation to present such quantum of evidence necessary to prove
its claim. Unfortunately, the petitioner not only failed to ove1ium this burden but also failed to
adduced [sic] the evidence required to prove such claim. While it may be true that respondent
applied for and was granted a credit accommodation by petitioner, the latter failed to adduce enough
evidence to establish that it is entitled to the payment of the amount of Php67,944.82. The
Statement of Account submitted by petitioner showing the alleged obligation of the respondent
merely states the late charges and penalty incurred but did not enumerate the alleged
purchases/transactions made by the respondent while using the credit card· issued by the petitioner.
Thus, having failed to establish its claim by preponderance of evidence, the dismissal of the petition
is warranted.

WHEREFORE, premises considered, the petition under consideration is DISMISSED and the
assailed Decision dated May 06, 2010 of Regional Trial Court of Pasig, Branch 167 is hereby
AFFIRMED.

SO ORDERED. 15

Petitioner moved to reconsider, but in a July 4, 2012 Resolution, the CA held its ground. Hence, the
present Petition.

The Court notes that all throughout the proceedings, respondent did not participate. She did not file
her answer in the MeTC. Nor did she file any comment or position paper in the RTC appeal, as well
as the CA petition for review. Just as well, she failed to submit her Comment to the instant Petition
for which reason fine was imposed upon her by the Court on two occasions. And in an August 27,
2015 Manifestation,   petitioner declared that it is submitting the instant case for resolution on the
16

basis of the pleadings on record.

Issue and Arguments

Petitioner simply submits that it has presented sufficient evidence to support its pecuniary claim. It
claims that the July 9, 2006 Statement of Account  properly reflected the respondent's obligation;
17

that respondent is estopped from questioning the said statement of account as it contains a waiver,
stating that if respondent does not question the same within 20 days from receipt, "Bankard, Inc. will
deem the Statement true and correct";   that respondent's failure to file her Answer in the MeTC and
18

Comment before the RTC and the CA likewise results in the validation of the statement of account;
that with her failure to answer, all the material allegations in the Complaint are deemed admitted,
especially the statement of account which should have been specifically denied under oath; that if
judgment is not rendered in its favor, this would result in the unjust enrichment of respondent at its
expense; and that if the MeTC, RTC, and CA are affirmed, this would result in a situation where
credit card holders could evade their obligations by simply ignoring cases filed against them, as in
this case where, despite proper notice, respondent failed and refused to file her Answer to the
Complaint, her respective comments to the RTC appeal, CA petition, and the instant Petition.
Petitioner thus prays that the questioned CA dispositions be reversed and set aside, and that
judgment be rendered granting its prayer as stated in its Complaint, that is, that respondent be
ordered to pay the amount of ₱67,944.82, with interest; attorney's fees equivalent to 25% of the sum
due; and costs of suit.

Our Ruling

The Petition is partially granted.

A perusal of the July 9, 2006 Statement of Account sent to respondent would indeed show that it
does not contain the particulars of purchase transactions entered into by the latter; it merely contains
the following information:

PREVIOUS STATEMENT BALANCE [₱]64,615.64

3562-8688-5155-1006 LUZ TATEL ALARTE
07/04/06 07/047/0 LATE CHARGES 1,484.84
07/07/06 07/07/06 INTEREST CHARGES 1,844.34
SUB TOTAL 3,329.18
BALANCE END [₱]67,944.82

***END OF STATEMENT-PAGE 1 *** 19

However, the manner in which the statement of account is worded indicates that it is a running
balance, a continuing and mounting bill of charges consisting of a combined principal amount with
finance and penalty charges imposed, which respondent appears to have failed to pay in the past.
This is shown by the fact that respondent has failed to pay a past bill amounting to ₱64,615.64 - the
"previous statement balance" in the very first line of the above-quoted statement of account. This
could mean that there really were no immediate purchase transactions made by respondent for the
month that needed to be specified in the July 9, 2006 Statement of Account; that instead, she simply
repeatedly failed and continues to fail to pay her credit card debt arising out of past credit card
purchase transactions to petitioner, which thus resulted in a mounting pile of charges imposed upon
her outstanding account as reflected in a statement or bill of charges or accounts regularly sent to
her.

Petitioner's fault appears to lie in the fact that its Complaint was not well-prepared, and its cause is
not well-argued; for this reason, the courts below misunderstood both. Upon being apprised of the
MeTC's Decision dismissing the case for failure to "indicate the alleged purchases made
by"  respondent, petitioner could have simply included in its RTC appeal a simple summary of
20

respondent's account; the source of her debt, such as the credit card transactions she made in the
past and, her past statements of account to prove that the July 9, 2006 statement of account was
merely a running or accumulated balance and did not necessarily involve immediate credit card
purchases. Instead, petitioner made the mistake of laying blame upon the MeTC and RTC for not
conducting a clarificatory hearing and for not requiring it to submit affidavits "on that matter",  when
21

enlightenment should have come primarily from it as it is precisely engaged in the credit card
business and is therefore presumed to be an expert on the subject.

While it can be said that, from the point of view of petitioner's business dealings with respondent, the
former is not obliged, each and eve1y time, to send a statement of account to the latter containing a
detailed list of all the credit card transactions she made in the past which remain unsettled and
outstanding as of the date of issuance of the latest statement of account, as she is presumed to
know these from past statements of account received. The matter, however, is not so simple from
the viewpoint of someone who is not privy to their transactions, such as the courts.

This Court cannot completely blame the MeTC, RTC, and CA for their failure to understand or
realize the fact that a monthly credit card statement of account does not always necessarily involve
purchases or transactions made immediately prior to the issuance of such statement; certainly, it
may be that the card holder did not at all use the credit card for the month, and the statement of
account sent to him or her refers to principal, interest, and penalty charges incurred from past
transactions which are too multiple or cumbersome to enumerate but nonetheless remain unsettled
by the card holder. This Court cannot judge them for their lack of experience or practical
understanding of credit card arrangements, although it would have helped if they just endeavored to
derive such an understanding of the process.

Thus, it would not hurt the cause of justice to remand the case to the Me TC where petitioner would
be required to amend its Complaint and adduce additional evidence to prove its case; that way, the
lower court can better understand the nature of the claim, and this time it may arrive at a just
resolution of the case. This is to say that while the Court believes that petitioner's claim may be well-
founded, it is not enough as to allow judgment in its favor on 1he basis of extant evidence. It must
prove the validity of its claim; this it may do by amending its Complaint and adducing additional
evidence of respondent's credit history and proving the loan transactions between them. After all,
credit card arrangements are simple loan arrangements between the card issuer and the card
holder.

Simply put, every credit card transaction involves three contracts, namely: (a) the sales contract
between the credit card holder and the merchant or the business establishment which accepted the
credit card; (b) the loan agreement between the credit card issuer and the credit card holder; and
lastly, (c) the promise to pay between the credit card issuer and the merchant or business
establishment. 22

WHEREFORE, the Petition is PARTIALLYGRANTED. The September 28, 2011 Decision and July
4, 2012 Resolution of the Court of Appeals in CA-G.R. SP No. 114345
are REVERSED and SETASIDE.

Civil Case No. 13956 is reinstated, and the Metropolitan Trial Court of Pasig City, Branch 72
is ORDERED to conduct further proceedings in accordance with the foregoing disquisition of the
Court and allow petitioner Bankard, Inc. (now RCBC Bankard Services Corporation) to amend its
Complaint and/or present additional evidence to prove its case.

SO ORDERED.
 SECOND DIVISION

July 3, 2017

G.R. No. 204544

MARLON BACERRA y TABONES, Petitioner

vs.
PEOPLE OF THE PHILIPPINES, Respondent

DECISION

LEONEN, J.:

The identity of the perpetrator of a crime and a finding of guilt may rest solely on the strength of
circumstantial evidence.

This resolves the Petition for Review  assailing the Decision  dated August 30, 2012 and the
1 2

Resolution  dated October 22, 2012 of the Court of Appeals in CA-G.R. CR No. 32923, which upheld
3

the conviction of Marlon Bacerra y Tabones (Bacerra) for the crime of simple arson punished
underSection 1 of Presidential Decree No. 1613. 4

In the Information dated January 12, 2006, Bacerra was charged with violation of Section 1 of
Presidential Decree No. 1613:

That on or about 4:00 o'clock in the morning of November 15, 2005, at Brgy. San Pedro Ili, Alcala,
Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused, with
intent to cause damage to another, did then and theres [sic], willfully, unlawfully and feloniously set
fire to the rest house of Alfredo Melegrito y Galamay, to his damage and prejudice in the amount of
Php70,000.00, more or less.

Contrary to Sec. 1, 1st par. Of P.D. 1613. 5

Bacerra pleaded not guilty to the charge. 6

During trial, the prosecution presented private complainant Alfredo Melegrito (Alfredo), Edgar
Melegrito (Edgar), Toni Rose dela Cruz, and P03 Marcos Bautista, Jr. to testify on the alleged
incident.  Their collective testimonies produced the following facts for the prosecution:
7

Alfredo and his family  were sound asleep in their home on

8

November 15, 2005.  At about 1:00 a.m., he was roused from sleep by the
9
sound of stones hitting his house. Alfredo went to the living room  and 10

peered through the jalousie window. The terrace light allowed him to recognize his neighbor and co-
worker,  Bacerra.
11 12

Bacerra threw stones at Alfredo's house while saying, "Vulva of your mother."  Just as he was about
13

to leave, Bacerra exclaimed, "[V]ulva of your mother, Old Fred, I'll bum you now."  Bacerra then 14

left.  Alfredo's son, Edgar, also witnessed the incident through a window in his room.
15 16

Troubled by Bacerra's threat, Alfredo waited for him to return. Alfredo sat down beside the
window.  At around 4:00a.m.,  he heard dogs barking outside.  Alfredo looked out the window and
17 18 19

saw Bacerra walking towards their nipa hut,  which was located around 10 meters from their house.
20 21

Bacerra paced in front of the nipa hut and shook it.  Moments later, Alfredo saw the nipa hut
22

burning. 23

Alfredo sought help from his neighbors to smother the fire.  Edgar contacted the authorities for
24

assistance  but it was too late. The nipa hut and its contents were completely destroyed.  The local
25 26

authorities conducted an investigation on the incident. 27

The defense presented Bacerra, Alex Dacanay (Dacanay), and Jocelyn Fernandez (Fernandez) as
witnesses. Their collective testimonies yielded the defense's version of the incident:

At around 11:00 p.m. of November 14, 2005, Bacerra was at the house of his friend, Ronald
Valencia. The two (2) engaged in a drinking session with Dacanay and a certain Reyson until 1:00
a.m. of November 15, 2005. 28

Bacerra asked Dacanay to take him to his grandmother's house. Dacanay conceded but they found
the gate closed.  Embarrassed to disturb his grandmother,  Bacerra asked Dacanay to bring him to
29 30

Fernandez's house instead.  However, Dacanay was already sleepy at that time.  Hence, Bacerra
31 32

requested his brother-in-law, Francisco Sadora (Sadora), to acconwany him to Fernandez's house,
which was located one (1) kilometer away. 33

Bacerra and Sadora arrived at Fernandez's house at around 1:30 a.m. Fernandez told Bacerra to
sleep in the living room. She checked on Bacerra every hour.  At around 7:00 a.m., police officers
34

who were looking for Bacerra arrived at Fernandez's house.  Knowing that he did not do anything
35

wrong,  Bacerra voluntarily went to the police station with the authorities.
36 37

In the Decision dated October 6, 2009, Branch 50 of the Regional Trial Court in Villasis,
Pangasinan  found Bacerra guilty beyond reasonable doubt of arson:
38

WHEREFORE, judgment is hereby rendered finding accused Marlon Bacerra y

Tabones GUILTY beyond reasonable doubt of the crime of Simple Arson defined and penalized in
Section 1 of Presidential Decree No. 1613 and, there being no modifying circumstance, is sentenced
to suffer an indeterminate penalty of six (6) years of prision correccional, as minimum, to ten (10)
years of prision mayor, as maximum, together with all the accessory penalties provided by law.

The accused is likewise ordered to pay the private complainant ₱50,000.00 as temperate damages.

SO ORDERED.  (Emphasis in the original)

39
Bacerra appealed the Decision of the Regional Trial Court.  He argued that none of the
40

prosecution's witnesses had positively identjfied him as the person who burned the nipa hut. 41

In the Decision  dated August 30, 2012, the Court of Appeals affirmed the Decision dated October 6,
42

2009 of the Regional Trial Court in toto. 43

Bacerra moved for reconsideration  but the Motion was denied in the Resolution  dated October 22,
44 45

2012.

On January 15, 2013, Bacerra filed a Petition for Review on Certiorari  assailing the Decision dated
46

August 30, 2012 and Resolution dated October 22, 2012 of the Court of Appeals.

In the Resolution dated January 30, 2013, this Court required the People of the Philippines to
comment on the petition for review. 47

On June 18, 2013, the People of the Philippines, through the Office of the Solicitor General, filed a
Comment on the Petition  to which petitioner filed a Reply  on January 27, 2014.
48 49

Petitioner argues that the Court of Appeals erred in upholding his conviction based on circumstantial
evidence, which, being merely based on conjecture, falls short of proving his guilt beyond
reasonable doubt.  No direct evidence was presented to prove that petitioner actually set fire to
50

private complainant's nipa hut.  Moreover, there were two (2) incidents that occurred, which should
51

be taken and analyzed separately. 52

Petitioner adds that there were material inconsistencies in the testimonies of the prosecution's
witnesses.  Petitioner also points out that private complainant acted contrary to normal human
53

behavior, placing great doubt on his credibility.  Persons whose properties are being destroyed
54

should immediately confront the perpetrator.  Private complainant and his family, however, merely
55

stayed inside their house throughout the entire incident. 56

Petitioner argues in the alternative that the mitigating circumstances of intoxication and voluntary
surrender should have been appreciated by the lower tribunals in computing the imposable
penalty.  Petitioner was drunk at the time of the alleged incident.  In addition, he voluntarily
57 58

surrendered to the authorities despite the absence of an arrest warrant.  Lastly, petitioner asserts
59

that temperate damages should not have been awarded because private complainant could have
proven actual damages during trial. 60

In its Comment, respondent asserts that direct evidence is not the only means to establish criminal
liability.  An accused may be convicted based on circumstantial evidence as long as the combination
61

of circumstances leads to the conclusion that the accused is guilty beyond reasonable doubt. 62

Respondent argues that the Court of Appeals correctly affirmed the trial court's decision. For
intoxication to be considered as a mitigating circumstance, it must be shown that it is not
habitual.  The state of drunkenness of the accused must be of such nature as to affect his or her
63

mental faculties.  Voluntary surrender cannot likewise be considered as a mitigating circumstance

64

because there is no showing of spontaneity on the part of the accused. 65

Lastly, respondent argues that temperate damages amounting to ₱50,000.00 was properly awarded
because the burning of private complainant's nipa hut brought some pecuniary loss. 66

This case presents the following issues for this Court's resolution:
First, whether petitioner's guilt was proven beyond reasonable doubt based on the circumstantial
evidence adduced during trial; 67

Second, whether the mitigating circumstances of intoxication and voluntary surrender may properly
be appreciated in this case to reduce the imposable penalty;  and 68

Finally, whether the award of temperate damages amounting to ₱50,000.00 was proper. 69

This Court affirms petitioner's conviction for the crime of simple arson.

Direct evidence and circumstantial evidence are classifications of evidence with legal consequences.

The difference between direct evidence and circumstantial evidence involves the relationship of the
fact inferred to the facts that constitute the offense. Their difference does not relate to the probative
value of the evidence.

Direct evidence proves a challenged fact without drawing any inference.  Circumstantial evidence,
70

on the other hand, "indirectly proves a fact in issue, such that the factfinder must draw an inference
or reason from circumstantial evidence." 71

The probative value of direct evidence is generally neither greater than nor superior to circumstantial
evidence.  The Rules of Court do not distinguish between "direct evidence of fact and evidence of
72

circumstances from which the existence of a fact may be inferred."  The same quantum of evidence
73

is still required. Courts must be convinced that the accused is guilty beyond reasonable doubt. 74

A number of circumstantial evidence may be so credible to establish a fact from which it may be
inferred, beyond reasonable doubt, that the elements of a crime exist and that the accused is its
perpetrator.  There is no requirement in our jurisdiction that only direct evidence may convict.  After
75 76

all, evidence is always a matter of reasonable inference from any fact that may be proven by the
prosecution provided the inference is logical and beyond reasonable doubt.

Rule 113, Section 4 of the Rules on Evidence provides three (3) requisites that should be
established to sustain a conviction based on circumstantial evidence:

Section 4. Circumstantial evidence, when sufficient. - Circumstantial evidence is sufficient for

conviction if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable
doubt.77

The commission of a crime, the identity of the perpetrator,  and the finding of guilt may all be
78

established by circumstantial evidence.  The circumstances must be considered as a whole and

79

should create an unbroken chain leading to the conclusion that the accused authored the crime. 80
The determination of whether circumstantial evidence is sufficient to support a finding of guilt is a
qualitative test not a quantitative one.  The proven circumstances must be "consistent with each
81

other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent
with the hypothesis that he is innocent, and with every other rational hypothesis except that of guilt." 82

The crime of simple arson was proven solely through circumstantial evidence in People v.
Abayon.  None of the prosecution's witnesses actually saw the accused start the fire.  Nevertheless,
83 84

the circumstantial evidence adduced by the prosecution, taken in its entirety, all pointed to the
accused's guilt. 85

In People v. Acosta,  there was also no direct evidence linking the accused to the burning of the
86

house.  However, the circumstantial evidence was substantial enough to convict the accused.  The
87 88

accused had motive and previously attempted to set a portion of the victim's house on
fire.  Moreover, he was present at the scene of the crime before and after the incident.
89 90

Similarly, in this case, no one saw petitioner actually set fire to the nipa hut. Nevertheless, the
prosecution has established multiple circumstances, which, after being considered in their entirety,
support the conclusion that petitioner is guilty beyond reasonable doubt of simple arson.

First, the evidence was credible and sufficient to prove that petitioner stoned private complainant's
house and threatened to bum him.  Private complainant testified that he saw petitioner throwing
91

stones at his house and heard petitioner say, "okinam nga Lakay Fred, puuran kayo tad ta!"  (Vulva 92

of your mother, Old Fred, I'll bum you now.)  Petitioner's threats were also heard by private
93

complainant's son  and grandchildren.

94 95

Second, the evidence was credible and sufficient to prove that petitioner returned a few hours later
and made his way to private complainant's nipa hut.  Private complainant testified that at 4:00
96

a.m.,  he saw petitioner pass by their house and walk towards their nipa hut.  This was corroborated
97 98

by private complainant's son who testified that he saw petitioner standing in front of the nipa hut
moments before it was burned. 99

Third, the evidence was also credible and sufficient to prove that

petitioner was in close proximity to the nipa hut before it caught fire. 100

Private complainant testified that he saw petitioner walk to and fro in front

of the nipa hut and shake its posts just before it caught fire.  Private 101

complainant's son likewise saw petitioner standing at the side of the nipa hut

before it was burned. 102

The stoning incident and the burning incident cannot be taken and analyzed separately. Instead,
they must be viewed and considered as a whole.  Circumstantial evidence is like a "tapestry made
1âwphi1

up of strands which create a pattern when interwoven."  Each strand cannot be plucked out and
103

scrutinized individually because it only forms part of the entire picture.  The events that transpired 104

prior to the burning incident cannot be disregarded. Petitioner's threat to bum occurred when he
stoned private complainant's house.

Also, there is no other reasonable version of the events which can be held with reasonable certainty.
Private complainant could have actually seen petitioner bum the nipa hut by stepping outside of his
house. However, behavioral responses of individuals confronted with strange, startling, or frightful
experiences vary.  Where there is a perceived threat or danger to survival, some may fight, others
105

might escape.  Private complainant's act of remaining inside his house during the incident is not
106

contrary to human behavior. It cannot affect his credibility as a witness.

Furthermore, "the assessment of the credibility of witnesses is a function ... of the trial courts."  It is
107

a factual matter that generally cannot be reviewed in a Rule 45 petition.  Petitioner failed to prove,
108

much less allege, any of the exceptions to the general rule that only questions of law may be raised
in a petition for review brought under Rule 45 of the Rules of Court.  Hence, this Court will not
109

disturb the trial court's findings on the matter.

II

For intoxication to be appreciated as a mitigating circumstance, the intoxication of the accused must
neither be "habitual [n]or subsequent to the plan to commit [a] felony." 110

Moreover, it must be shown that the mental faculties and willpower of the accused were impaired in
such a way that would diminish the accused's capacity to understand the wrongful nature of his or
her acts.  The bare assertion that one is inebriated at the time of the commission of the crime is
111

insufficient.  There must be proof of the fact of intoxication and the effect of intoxication on the
112

accused. 113

There is no sufficient evidence in this case that would show that petitioner was intoxicated at the
time of the commission of the crime. A considerable amount of time had lapsed from petitioner's
drinking spree up to the burning of the nipa hut within which he could have regained control of his
actions. Hence, intoxication cannot be appreciated as a mitigating circumstance in this case.

Neither can voluntary surrender be appreciated as a mitigating circumstance.

Voluntary surrender, as a mitigating circumstance, requires an element of spontaneity. The

accused's act of surrendering to the authorities must have been impelled by the acknowledgment of
guilt or a desire to "save the authorities the trouble and expense that may be incurred for his [or her]
search and capture." 114

Based on the evidence on record, there is no showing that petitioner's act of submitting his person to
the authorities was motivated by an acknowledgement of his guilt.

Considering that no mitigating circumstances attended the commission of the crime, the
indeterminate sentence of six (6) years of prision correccional, as minimum, to ten (10) years
of prision mayor, as maximum, imposed by the trial court, stands.

III

Under Article 2224 of the Civil Code, temperate damages may be awarded when there is a finding
that "some pecuniary loss has been suffered but its amount [cannot], from the nature of the case, be
proved with certainty." The amount of temperate damages to be awarded in each case is
discretionary upon the courts  as long as it is "reasonable under the circumstances."
115 116

Private complainant clearly suffered some pecuniary loss as a result of the burning of his nipa hut.
However, private complainant failed to substantiate the actual damages that he suffered.
Nevertheless, he is entitled to be indemnified for his loss. The award of temperate damages
amounting to ₱50,000.00 is proper and reasonable under the circumstances.

WHEREFORE, the Petition for Review is DENIED. The Decision dated August 30, 2012 and the
Resolution dated October 22, 2012 of theCourt of Appeals in CA-G.R. CR No. 32923, finding
petitioner Marlon Bacerra y Tabones guilty beyond reasonable doubt for the crime of arson
is AFFIRMED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 102358 November 19, 1992

SPOUSES VICENTE and GLORIA MANALO, petitioners,

vs.
HON. NIEVES ROLDAN-CONFESOR, in her capacity as Undersecretary of Labor and
Employment, JOSE SARMIENTO as POEA Administrator, CAREERS PLANNERS
SPECIALISTS INTERNATIONAL, INC., and SPOUSES VICTOR and ELNORA
FERNANDEZ, respondents.

BELLOSILLO, J.:

The Court views with grave concern the alarming incidents of illegal recruitment which demonstrate
all too clearly that overseas employment has fast developed into a major source not only of much-
needed foreign exchanged but also, for the cunning and the crafty, of easy money.

In response to a newspaper advertisement looking for a couple to work as driver and tutor cum baby
sitter, petitioners Vicente and Gloria Manalo went to Career Planners Specialists International, Inc.
(CPSI), a licensed service contracting firm owned by private respondents, the spouses Victor and
Elnora Fernandez. After the requisite interview and testing, they were hired to work for a family in
Saudi Arabia for a monthly salary of US$350.00 each. According to petitioners, a placement fee of
P40,000.00 was imposed as a precondition for the processing of their papers. They paid only
P30,000.00 in cash and executed a promissory note for the balance. Then they were allowed by
respondent Elnora Fernandez to sign their contract papers but did not issue a receipt for the
placement fee despite demand.

Shortly before boarding their flight to Saudi Arabia, petitioners were handed their contracts.
According to Gloria, she was surprised to discover that her position had been changed to that of
domestic help. However, a CPSI employee assured her that the change was only for the purpose of
facilitating her departure and did not in any way alter her employment as tutor. Incidentally, CPSI
provided petitioners with the Travel Exit Pass (TEP) of Filipino Manpower Services, Inc. (FILMAN), a
duly licensed recruitment agency.

Contrary to the representation of her recruiter, Gloria was actually hired as a domestic help and not
as a tutor, so that after working for only twenty-five (25) days in Jeddah, she returned to Manila.
Soon after, Vicente also resigned from his work and followed her home. He could not stand the
unbearable working conditions of his employment. However, before leaving, he had to execute a
promissory note to cover his plane fare which respondent Victor Fernandez advanced. Vicente also
had to sign a quitclaim in favor of CPSI and his employer.

On 29 February 1988, petitioners sued private respondents before the Philippines Overseas
Employment Administration (POEA) charging them with illegal exaction,   false adverstisement,   and
1 2

violation of other pertinents laws, rules and regulations. They demanded the refund of the amount
exacted from them, plus payment of moral damages and the imposition of administrative sanctions.  3

Private respondents countered: (1) that Gloria applied as domestic help fully aware that she could
not be a tutor since she did not speak Arabic; (2) that the promissory note for P10,000.00 was
required of petitioners because they were hired without paying placement fees; (3) that it was
unlikely for petitioners, who were mature, educated and experienced in overseas work, to part with
P30,000.00 without securing a receipt; (4) that Vicente executed a quitclaim in favor of CPSI duly
authenticated by embassy officials in Saudi Arabia; (5) that there was no impropriety in having the
employment papers of petitioners processed by FILMAN because it was a sister company of CPSI,
and private respondents Victor and Elnora were officers in both agencies.

Private respondents prayed for the disqualification of petitioners from overseas employment, and
sought to recover from them the SR 1,150 plane fare advanced by Victor for Vicente, P10,000.00 as
placement fee evidenced by a promissory note, and attorney's fees.

Mainly, on the basis of the transcripts of petitioners' testimonies in the clarificatory questioning
before the Rizal Provincial Prosecutor in a related criminal case,  the POEA issued its Order of 7
4

May 1990 giving more weight and credence to petitioners' version thus —

After a careful evaluation of the facts and the evidence presented, we are more
inclined to give weight to complainants' posture. Complainants' version of the case
spontaneously presented in their pleadings is, to our mind, more convincing than
respondent's stand. Moreover, the manner by which complainants narrated the
whole incident inspired belief in the allegation that respondent Career is indeed guilty
of illegal exaction. Thus, the actual expenses incurred by herein complainants
computed hereinbelow less the allowable fees of P3,000.00 (P1,500.00 per worker,
respondent being a service contractor) should be returned to them.

Actual Expenses —

P30,000.00 — placement fees

14.00 — application form
300.00 — psychological test
1,400.00 — medical exam
P31,000.00 — total
 less 3,000.00 — processing fees at
P1,500.00 per applicant

P28,714.00 — amount to be refunded

It appearing, however, that only respondent Career Planners Specialist(s) Int'l. Inc.,
took part in the collection of the aforesaid amount, the same should be solely held
liable.

We cannot likewise give credence to the Final Quitclaim signed by complainant

Vicente Manalo before he left for the Philippines and presented by respondent as
defense. While its genuineness may not be in question, we believe that it has no
bearing on the issue at bar. The aforesaid Quitclaim deals more with matters
concerning complainants' employment abroad. However, the subject of the instant
claim is the refund of complainants' expenses prior to their deployment to Saudi
Arabia.

On the other hand, we hold FILMAN liable for allowing its document such as the TEP
to be used by other agency. Respondent's defense that there is nothing wrong in this
because FILMAN is a sister company of CAREER does not merit consideration
because such practice is not allowed under the POEA Rules and Regulations. A
check with our records, however, showed that respondent FILMAN had been put in
the list of forever banned agencies effective April 5, 1989.

Anent the claim for moral damages, this Office has no jurisdiction to entertain the
same.

WHEREFORE, . . . the Authority of Career Planners Specialist(s) International is

hereby suspended for four (4) months or in lieu thereof, a fine of P40,000.00 is
hereby imposed for illegal exaction on two counts plus restitution of the amount of
P28,714.00 to herein complainants in both instances.

Filipino Manpower Services, Inc. is hereby meted a fine of P40,000.00 for two counts
of misrepresentation. Its perpetual disqualification from recruitment activities is
hereby reiterated.

The claim for moral damages is dismissed for lack of jurisdiction.

Respondent Career's counterclaim is likewise dismissed or lack of merit.  5

Private respondents filed a motion for reconsideration and on 4 February 1991, POEA issued a
resolution setting arise its earlier order stating that —

It is worth mentioning at this point that our sole basis for holding respondent Career
liable for illegal exaction was the uncorroborated testimony of the complainants.

As we have consistently held, (the) charge of illegal exaction is a serious charge

which may cause the suspension or cancellation of the authority or license of the
offending agency. Hence, it should be proven and substantiated by a clear and
convincing evidence. Mere allegation of complainant that the agency charged more
 than the authorized fee will not suffice to indict the agency for illegal exaction unless
the allegation is supported by other corroborative circumstantial evidence.

Thus, for lack of concrete evidence or proof to support our initial findings, we are
inclined to reconsider the penalty imposed upon respondent.

Foregoing premises, the penalty of suspension imposed upon respondent Career

Planners Specialist(s) International, Inc. pursuant to our Order dated May 7, 1990 is
hereby LIFTED.

Accordingly, the alternative fine of P40,000.00 which was paid under protest by
respondent is hereby ordered refunded to them.  6

Petitioners appealed to the Secretary of Labor. On 5 July 1991, then Undersecretary of Labor Ma.
Nieves Roldan-Confesor (now Secretary of Labor) sustained the reconsideration of POEA. Her
Order reads in part —

We find . . . no cogent reason or sufficient justification to reverse or modify the

assailed Order.

Records reveal that the only basis for holding respondent Career Planners
Specialist(s) International, Inc., liable for illegal exaction, as held in the previous
POEA Order dated May 7, 1990 was the uncorroborated testimony of the
complainants. There was no concrete evidence or proof to support the POEA
Administrator's initial findings.

We take this opportunity to inform the complainants that the charge of illegal exaction
is a serious charge which may cause the suspension or cancellation of the authority
or license of a recruitment agency. Therefore, said charge must be proven and
substantiated by clear and convincing evidence. A mere allegation will not suffice to
find an agency liable for illegal exaction unless said allegation is supported by other
corroborative circumstantial evidence. In this connection, records show that
complainants could not narrate the specific circumstances surrounding their alleged
payment of the amount of P30,000.00. They could not even remember the specific
date when said amount was paid to respondent agency. In addition, when
complainants were separately questioned as to how the money was kept bundled
together prior to being handed to respondent agency for payment, Gloria Manalo
said it was wrapped in a piece of paper while Vicente Manalo said it was placed
inside an envelope.  7

On the charge of petitioners that they were given jobs (driver/domestic help) different from those
advertised by private respondents, the Undersecretary ruled that there was no misrepresentation by
way of false advertisement because it was established that private respondents also caused to be
printed in the same newspaper page a second box looking for a couple driver/domestic help.

In her Order of 9 October 1991, then Undersecretary Ma. Nieves Roldan-Confesor denied
petitioners' motion for reconsideration. 8

In the present recourse, petitioners claim that public respondent POEA committed a fatal jurisdictional error when it resolved private
respondents' motion for reconsideration in violation of Rule V, Book VI of the 1985 POEA Rules and Regulations directing the transmittal of
motions for reconsideration to the National Labor Relations Commission (NLRC) for determination. Consequently, for want of legal
competence to act on said motion, the Order of 4 February 1991, as well as the subsequent orders of public respondent Undersecretary of
Labor dated 5 July 1991 and 9 October 1991, is null and void.
In Aguinaldo Industries Corporation v. Commissioner of Internal Revenue   We ruled —
9

To allow a litigant to assume a different posture when he comes before the court and
challenge the position he had accepted at the administrative level, would be to
sanction a procedure whereby the court — which is supposed
to review administrative determinations — would not review, but determine and
decide for the first time, a question not raised at the administrative forum. This
cannot be permitted, for the same reason that underlies the requirement of prior
exhaustion of administrative remedies to give administrative authorities the prior
opportunity to decide controversies within its competence, and in much the same
way that, on the judicial level, issues not raised in the lower court cannot be raised
for the first time on appeal.

The alleged procedural lapse by respondent POEA was raised by petitioners only before Us,
notwithstanding that such ground was already existing when they appealed to the Secretary of
Labor. Ironically, petitioners now question the jurisdiction of the Secretary of Labor over the appeal
which they themselves elevated to that office. When petitioners filed their motion for reconsideration
with the Undersecretary of Labor, this procedural issue was not even mentioned. Clearly, it would be
the height of unfairness and inequity if We now allow petitioners to backtrack after getting an
unfavorable verdict from public respondents whose authority they themselves involved. In Tijam
v. Sibonghanoy   We said: ". . . we frown upon the "undesirable practice" of a party submitting his
10

case for decision and then accepting the judgment, only if favorable, and attacking it for lack of
jurisdiction, when adverse . . . ."

In this regard, however, We find no procedural infirmity constituting reversible error.

The 1985 POEA Rules and Regulations   is divided into eight (8) Books. Book VI, cited by
11

petitioners, is entitled "Adjudication Rules". The procedure outlined therein relates to the original and
exclusive jurisdiction exercised by POEA through its Adjudication Department "to hear and decide all
cases involving employer-employee relations arising out of or by virtue of a law or contact involving
Filipino workers for overseas employment," involving "[v]iolation of the terms and conditions of
employment . . . . [d]isputes relating to the implementation and interpretation of employment
contracts . . . [m]oney claims of workers against their employers and/or their duly authorized agents
in the Philippines or vice versa . . . . [c]laims for death, disability and other benefits arising out of
employment . . . . and . . . . [v]iolations of our non-compliance with any compromise agreement
entered into by and between the parties in an overseas employment contract."

On the other hand, Book II entitled "Licensing and Regulations" of the 1985 POEA Rules and
Regulations, notably Rule VI cited by private respondents, refers particularly to the procedure for
suspension, cancellation and revocation of Authority or License   through the POEA Licensing and
12

Regulation Office (LRO).

The controversy in the present case centers on the liability of private respondents for illegal exaction,
false advertisement and violation of pertinent laws and rules on recruitment of overseas workers and
the resulting imposition of penalty of suspension of the Authority of respondent CPSI. Quite plainly,
We are not concerned here with employer-employee relations, the procedure of which is outlined in
Book VI; rather, with the suspension or revocation of Authority embodied in Book II.

Evidently, no jurisdictional error was accordingly committed because in cases affecting suspension,
revocation or cancellation of Authority, the POEA has authority under Sec. 18, Rule VI, Book II, to
resolve motions for reconsideration which may thereafter be appealed to the Secretary of Labor.
Section 18, provides: "A motion for reconsideration of an order o suspension (issued by POEA) or an
appeal to the Minister (now Secretary of Labor) from an order cancelling a license or authority may
be entertained only when filed with the LRO within ten (10) working days from the service of the
order or decision" (parenthesis supplied).

Petitioners also argue that public respondents gravely abused their discretion when they violated
petitioners' right to administrative due process by requiring clear and convincing evidence to
establish the charge illegal exaction. This point is well taken. There was grave abuse of discretion.

In the administrative proceedings for cancellation, revocation or suspension of Authority or License,

no rule requires that testimonies of complainants be corroborated by documentary evidence, if the
charge of unlawful exaction is substantially proven. All administrative determinations require only
substantial proof and not clear and convincing evidence as erroneously contended by pubic
respondents.

Clear and convincing proof is ". . . more than mere preponderance, but not to extent of such certainty
as is required beyond reasonable doubt as in criminal cases . . ."   while substantial evidence ". . .
13

consists of more than a mere scintilla of evidence but may be somewhat less than a
preponderance . . . ."   Consequently, in the hierarchy of evidentiary values, We find proof beyond
14

reasonable doubt at the highest level, followed by clear and convincing evidence, preponderance of
evidence, and substantial evidence, in that order.

That the administrative determination of facts may result in the suspension or revocation of the
authority of CPSI does not require a higher degree of proof. The proceedings are administrative, and
the consequent imposition of suspension/revocation of Authority/License does not make the
proceedings criminal. Moreover, the sanctions are administrative and, accordingly, their infliction
does not give rise to double jeopardy when a criminal action is instituted for the same act.

Thus We held in Atlas Consolidated Mining and Development Corporation v. Factoran, Jr.   — 15

. . . it is sufficient that administrative findings of fact are supported by evidence, or

negatively stated, it is sufficient that findings of fact are not shown to be unsupported
by evidence. Substantial evidence is all that is needed to support an administrative
finding of fact, and substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion (Ang Tibay v. Court of
Industrial Relations, 69 Phil. 635, 642; Police Commission v. Lood, 127 SCRA 762
[1984].

The POEA, after assessing the evidence of both parties, found that private respondents collected
from petitioners P30,000.00 as placement fees; consequently, it ruled that there was illegal exaction.
Surprisingly, without altering its findings of fact, POEA reconsidered its order. It held that
uncorroborated testimonies were not enough to conclude that illegal exaction was committed,
particularly so that this might result in the suspension or revocation of respondents' authority to
engage in recruitment activities. The premise that testimonies of petitioners should be supported by
some other form of evidence is, to say the least, fallacious. In Castillo v. Court of Appeals,   where
16

the appellate court reversed the findings of fact of the trial court by requiring a higher degree of
proof, We held —

. . . we find no strong and cogent reason which justifies the appellate court's
deviation from the findings and conclusions of the trial court. As pointed out in
Hernandez v. Intermediate Appellate Court (189 SCRA 758 [1990]), in agrarian
cases, all that is required is mere substantial evidence. Hence, the agrarian court's
findings of fact which went beyond the minimum evidentiary support demanded by
 law, that is, supported by substantial evidence, are final and conclusive and cannot
be reversed by the appellate tribunal.

The seeming discrepancy in the statements of the witnesses (one saying the money was wrapped in
paper, the other, that the money was in an envelope; neither testified on the specific date of the
exaction), refers only to minor details. Perhaps it would be different if the variance refers to essential
points, e.g., whether the amount of P30,000.00 was actually paid by petitioners to private
respondents. Consequently, whether the money was wrapped in paper, or placed in an envelope, or
unwrapped or whether the parties could not recall when there payment was effected is unimportant.
After all, the money could have been wrapped in paper and placed in the envelope, or placed in the
envelope without being wrapped, or wrapped with use of an unpasted envelope that appeared to be
the envelope itself. In either case, petitioners, could have viewed them differently; but the difference
is ultimately inconsequential. The crucial point to consider is that the petitioners categorically and
unequivocally testified that respondents collected from them the amount of P30,000.00 as their
placement fees and that they paid the amount demanded. In this regard, it may be worth to
emphasize that only substantial evidence, not necessarily clear and convincing evidence, is
required. Moreover, when confronted with conflicting assertions, the rule that "as between a positive
and categorical testimony which has a ring of truth on one hand, and a bare denial on the other, the
former is generally held to prevail . . . ."   applies.
17

But even on the supposition that there was no payment of P30,000.00, it cannot be denied that
private respondents required petitioners to execute a promissory note for P10,000.00 purportedly
because petitioners were hired without paying placement fees. The mere charging of P10,000.00,
standing alone, is enough to hold private respondents answerable for illegal exaction because the
allowable amount to be collected per contract worker according to respondent POEA was only
P1,500.00, or P3,000.00 for both petitioners.

WHEREFORE, the petition is GRANTED. The challenged Orders of respondent Undersecretary of

Labor dated 5 July 1991 and 9 October 1991, as well as the Resolution of respondent POEA dated 4
February 1991, having been issued with grave abuse of discretion amounting to lack or excess of
jurisdiction are SET ASIDE, and the original Order of respondent POEA dated 7 May 1990 is
ordered REINSTATED and AFFIRMED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 170598               October 9, 2013

FAR EAST BANK TRUST COMPANY, Petitioner,

vs.
ROBERTO MAR CHANTE, a.k.a. ROBERT MAR G. CHAN, Respondents.
 DECISION

BERSAMIN, J.:

In this dispute between a. bank and its depositor over liability for several supposedly fraudulent
withdrawals from the latter s account through an automated tellering machine (ATM), we hereby
resolve the issue of liability against the bank because of the intervention of a system bug that
facilitated the purported withdrawals.

The Case

Under review on certiorari is the decision promulgated on August l, 2005,1 whereby the Court of
Appeals (CA) reversed the judgment the Regional Trial Court, Branch 51, in Manila (RTC) rendered
in favor of the petitioner on May 14, 1998 in Civil Case No. 92-61706.2 Thereby, the CA relieved the
depositor of any liability for the supposedly fraudulent withdrawals.

Antecedents

Robert Mar Chante, also known as Robert Mar G. Chan (Chan), was a current account depositor of
petitioner Far East Bank & Trust Co. (FEBTC) at its Ongpin Branch (Current Account No. 5012-
00340-3). FEBTC issued to him Far East Card No. 05-01120-5-0 with July 1993 as the expiry date.
The card, known as a "Do-It-All" card to handle credit card and ATM transactions, was tagged in his
current account. As a security feature, a personal identification number (PIN), known only to Chan
as the depositor, was required in order to gain access to the account. Upon the card’s issuance,
FEBTC required him as the depositor to key in the six-digit PIN. Thus, with the use of his card and
the PIN, he could then deposit and withdraw funds from his current account from any FEBTC ATM
facility, including the MEGALINK facilities of other member banks that included the Philippine
National Bank (PNB).

Civil Case No. 92-61706 sprang from the complaint brought by petitioner Far East Bank & Trust Co.
(FEBTC) on July 1, 1992 in the RTC,3 to recover from Chan the principal sum of ₱770,488.30
representing the unpaid balance of the amount fraudulently withdrawn from Chan’s Current Account
No. 5012-00340-3 with the use of Far East Card No. 05-01120-5-0.

FEBTC alleged that between 8:52 p.m. of May 4, 1992 and 4:06 a.m. of May 5, 1992, Chan had
used Far East Card No. 05-01120-5-0 to withdraw funds totaling ₱967,000.00 from the PNB-
MEGALINK ATM facility at the Manila Pavilion Hotel in Manila; that the withdrawals were done in a
series of 242 transactions with the use of the same machine, at ₱4,000.00/withdrawal, except for
transaction No. 108 at 3:51 a.m. of May 5, 1992, when the machine dispensed only ₱3,000.00; that
MEGALINK’S journal tapes showed that Far East Card No. 05-01120-5-0 had been used in all the
242 transactions; and that the transactions were processed and recorded by the respective
computer systems of PNB and MEGALINK despite the following circumstances, namely: (a) the
offline status of the branch of account (FEBTC Ongpin Branch); (b) Chan’s account balance being
only ₱198,511.70 at the time, as shown in the bank statement; (c) the maximum withdrawal limit of
the ATM facility being ₱50,000.00/day; and (d) his withdrawal transactions not being reflected in his
account, and no debits or deductions from his current account with the FEBTC Ongpin Branch being
recorded.

FEBTC added that at the time of the ATM withdrawal transactions, there was an error in its computer
system known as "system bug" whose nature had allowed Chan to successfully withdraw funds in
excess of his current credit balance of ₱198,511.70; and that Chan had taken advantage of the
system bug to do the withdrawal transactions.
On his part, Chan denied liability. Although admitting his physical possession of Far East Card No.
05-01120-5-0 on May 4 and May 5, 1992, he denied making the ATM withdrawals totaling
₱967,000.00, and instead insisted that he had been actually home at the time of the withdrawals. He
alluded to a possible "inside job" as the cause of the supposed withdrawals, citing a newspaper
report to the effect that an employee of FEBTC’s had admitted having debited accounts of its
depositors by using his knowledge of computers as well as information available to him. Chan
claimed that it would be physically impossible for any human being like him to stand long hours in
front of the ATM facility just to withdraw funds. He contested the debiting of his account, stating that
the debiting had affected his business and had caused him to suffer great humiliation after the
dishonor of his sufficiently-funded checks by FEBTC.

The records show that FEBTC discovered the system bug only after its routine reconciliation of the
ATM-MEGALINK transactions on May 7, 1992; that it immediately adopted remedial and corrective
measures to protect its interest in order to avoid incurring further damage as well as to prevent a
recurrence of the incident; that one of the measures it adopted pursuant to its ATM Service
Agreement with Chan was to program its computer system to repossess his ATM card; that his ATM
card was repossessed at the Ermita Branch of FEBTC when he again attempted to withdraw at the
ATM facility there; that the ATM facility retained his ATM card until its recovery by the bank; and that
FEBTC conducted an in-depth investigation and a time-and-motion study of the withdrawals in
question.

On May 14, 1992, FEBTC debited his current account in the amount of ₱192,517.20 pursuant to
Chan’s ATM Service Agreement. It debited the further sum of ₱3,000.00 on May 18, 1992, leaving
the unrecovered portion of the funds allegedly withdrawn by him at ₱770,488.30. Thus, on May 14
and May 18, 1992, FEBTC sent to Chan letters demanding the reimbursement of the unrecovered
balance of ₱770,488.30, but he turned a deaf ear to the demands, impelling it to bring this case on
July 1, 1992.4

Ruling of the RTC

As reflected in the pre-trial order of October 19, 1992, the issues to be resolved were, firstly, whether
or not Chan had himself withdrawn the total sum of ₱967,000.00 with the use of his Far East Card
No. 05-01120-5-0 at the PNB-MEGALINK ATM facility; and, secondly, if the answer to the first issue
was that he did, whether or not he was liable to reimburse to FEBTC the amount of ₱770,488.30 as
actual damages, plus interest.5

On May 14, 1998, the RTC rendered judgment in favor of FEBTC, pertinently holding and ruling as
follows:6

In the instant case, what happened was that the defendant who was at the U.N. Branch of the PNB
used his card. He entered his PIN to have access to a withdrawal transaction from his account in Far
East Bank, Ongpin Branch. However, after recognizing the card and went to the path of his account
it could not get a signal to proceed with the transaction so it proceeded to the other path who gave
the signal to go on and dispense money. But there was a computer error as it did not only dispense
the money limit for the day buty it continued to dispense a lot more until it reached the amount of
₱967,000.00 which took the defendant till the hours of the morning to obtain. But defendant says he
did not use his card. He alleges that it could be an inside job just like what happened to the said
bank which was published in the newspaper wherein the bank employee admitted having done the
theft through his knowledge of the computer. Could this be true?

The Court opines that it is not far-fetched. However why did this Court state that plaintiff’s cause of
action will survive? The action of the defendant after the incident gave him away. Merely two days
after the heavy withdrawal, the defendant returned not at the exact scene of the incident but at a
nearby branch which is also in Ermita and tried again to withdraw. But at this time the bank already
knew what happened so it blocked the card and retained it being a hot card. The defendant was not
successful this time so what he did was to issue a check almost for the whole amount of his balance
in his account leaving only a minimal amount. This incident puzzles the Court. Maybe the defendant
was hoping that the machine nearby may likewise dispense so much amount without being detected.
He will not definitely go back to the U.N. branch as he may think that it is being watched and so he
went to a nearby branch. Unfortunately, luck was not with him this time and his card was taken by
the bank. The fact that he hastily withdrew the balance of his account after his card was retained by
the bank only showed his knowledge that the bank may debit his account. It also showed his intent
to do something further other than first inquire why his card was considered a hot card if he is really
innocent. When he went to the Ermita branch to withdraw from the ATM booth he was intending to
withdraw not more than ₱50,000.00 as it is the bank’s limit for the day and if ever he needed a
bigger amount than ₱50,000.00 immediately he should have gone to the branch for an over the
counter transaction but he did not do so and instead issued a check for ₱190,000.00 dated May 7,
1992 and another check for ₱5,000.00 dated May 13, 1992. To the mind of the Court, to take
advantage of a computer error, to gain sudden and undeserved amount of money should be
condemned in the strongest terms.

There are no available precedents in this case regarding computer errors, but the Court feels that
defendant should be held liable for the mistaken amount he was able to get from the machine based
on the following provisions of the law.

Articles 19, 21, 22 and 23 of the Civil Code x x x.

xxxx

There is likewise one point that the Court would like to discuss about the allegation of the defendant
that it was impossible for him to withdraw the money in such long period and almost minute after
minute. This Court believes that money is the least of all, a person may give priority in life. There are
many who would sacrifice a lot just to have lots of it, so it would not be impossible for one to take
time, stand for several hours and just enter some items in the computer if the return would be
something like a million or close to a million. In fact, the effort exerted was just peanuts compared to
other legitimate ways of earning a living as the only capital or means used to obtain it was the
defendant’s loss of sleep and the time spent in withdrawing the same. Moreover, though the cause
of action in this case may be the erroneous dispensation of money due to computer bug which is not
of defendant’s wrong doing, the Court sees that what was wrong was the failure to return the amount
in excess of what was legally his. There is such a thing as JUSTICE. Justice means rendering to
others their due. A person is just when he is careful about respecting the rights of others, and who
knows too, how to claim what he rightfully deserves as a consequence of fulfilling his duties.

From the foregoing, the conclusion is manifest that plaintiff is within its right in initiating the instant
suit, as defendant’s refusal to pay the claim constitutes the cause of action for sum of money.

xxxx

WHEREFORE, judgment is hereby rendered in favor of the plaintiff Far East Bank and Trust
Company and against the defendant Robert Mar Chante a.k.a. Robert Mar G. Chan ordering the
latter to pay the former the following:

1. the amount of ₱770,488.30 as actual damages representing the unrecovered balance of

the amounts withdrawn by defendant;
 2. interest of 24% per annum on the actual damages from July 1, 1992, the date of the filing
of the complaint until fully paid;

3. the amount of ₱100,000.00 as exemplary damages;

4. the sum of ₱30,000.00 as and for attorney’s fees; and

5. the costs of the suit. Defendant’s counterclaim is hereby dismissed for lack of merit.

SO ORDERED.

Ruling of the CA

Chan appealed,7 assigning the following errors to the RTC, to wit:

1. THE TRIAL COURT ERRED IN HOLDING DEFENDANT-APPELLANT LIABLE FOR THE

ALLEGED WITHDRAWAL OF THE AMOUNT OF ₱967,000.00 WITH INTEREST AT THE
RATE OF 24% PER ANNUM BASED MERELY ON CONJECTURES AND SUSPICIONS
NOT ESTABLISHED BY SOLID EVIDENCE;

2. THE TRIAL COURT ERRED IN AWARDING IN FAVOR OF APPELLEE EXEMPLARY

DAMAGES IN THE AMOUNT OF ₱100,000.00 AND ATTORNEY’S FEES IN THE AMOUNT
OF ₱30,000.00;

3. THE TRIAL COURT ERRED IN NOT ORDERING THE RESTITUTION OF THE AMOUNT
OF ₱196,521.30 ILLEGALLY DEBITED BY APPELLEE FROM APPELLANT’S ACCOUNT.

On August 1, 2005, the CA promulgated the assailed decision, reversing the RTC’s judgment, to wit:

x x x. The issues really before us are issues of contract application and issues of fact that would
require an examination and appreciation of the evidence presented. The first order therefore in our
review of the trial court’s decision is to take stock of the established and undisputed facts, and of the
evidence the parties have presented. We say this at the outset as we believe that it was in this
respect that the lower court failed in its consideration and appreciation of the case.

xxxx

An evidentiary dilemma we face in this case is the fact that there is no direct evidence on the issue
of who made the actual withdrawals. Chan correctly claims that the bank failed to present any
witness testifying that he (Chan) made the actual withdrawals. At the same time, Chan can only rely
on his own uncorroborated testimony that he was at home on the night that withdrawals were made.
We recognize that the bank can claim that no other evidence of actual withdrawal is necessary
because the PIN unique to Chan is already evidence that only Chan or his authorized representative
– and none other – could have accessed his account. But at the same time, we cannot close our
eyes to the fact that computers and the ATM system is not perfect as shown by an incident cited by
Chan involving the FEBTC itself. Aside from the vulnerability to inside staff members, we take
judicial notice that no less than our own Central Bank has publicly warned banks about other
nefarious schemes involving ATM machines. In a March 7, 2003 letter, the Central Bank stated:

March 7, 2003
BSP CIRCULAR LETTER

TO : All Banks

SUBJECT : Technology Fraud on ATM Systems

Please be advised that there were incidents in other countries regarding technology fraud in ATM
systems perpetrated by unscrupulous individuals and/ or syndicates.

These acts are carried out by:

1. A specialized scanner attached to the ATM card slot, and;

2. A pinhole camera

xxxx

In light of the absence of conclusive direct evidence of actual withdrawal that we can rely upon, we
have to depend on evidence "other than direct" to reach verdict in this case.

xxxx

WHEREFORE , premises considered, we hereby GRANT the appeal and accordingly REVERSE
and SET ASIDE the Decision dated May 14, 1998 of the Regional Trial Court of Manila, Branch 51,
in Civil Case No. 92-61706. We accordingly ORDER plaintiff-appellee Far East Bank and Trust
Company (FEBTC) to return to Chan the amount of Php196,571.30 plus 12% interest per annum
computed from August 7, 1992 – the time Chan filed his counterclaim – until the obligation is
satisfied. Costs against the plaintiff-appellee FEBTC.

SO ORDERED.8

FEBTC moved for reconsideration, but the CA denied its motion on November 24, 2005.9

Issues

Hence, FEBTC has appealed, urging the reversal of the CA’s adverse decision, and praying that
Chan be held liable for the withdrawals made from his account on May 4 and May 5, 1992; and that
it should not be held liable to return to Chan the sum of ₱196,571.30 debited from his account.

Ruling

The appeal lacks merit.

FEBTC would want us to hold that Chan had authored the May 4 and May 5, 1992 ATM withdrawals
based on the following attendant factors, namely: (a) ATM transactions were processed and
identified by the PIN, among others; (b) the PIN was exclusive and known only to the account
holder; (c) the ATM was tagged in the cardholder’s account where the ATM transactions were
debited or credited; (d) the account number tagged in the ATM card identified the cardholder; (e) the
ATM withdrawals were documented transactions; and (f) the transactions were strictly monitored and
recorded not only by FEBTC as the bank of account but also by the ATM machine and MEGALINK.
In other words, the ATM transactions in question would not be processed unless the PIN, which was
known only to Chan as the cardholder, had been correctly entered, an indication both that it was his
ATM card that had been used, and that all the transactions had been processed successfully by the
PNB-MEGALINK ATM facility at the Manila Pavilion Hotel with the use of the correct PIN.

We disagree with FEBTC.

Although there was no question that Chan had the physical possession of Far East Card No. 05-
01120-5-0 at the time of the withdrawals, the exclusive possession of the card alone did not suffice
to preponderantly establish that he had himself made the withdrawals, or that he had caused the
withdrawals to be made. In his answer, he denied using the card to withdraw funds from his account
on the dates in question, and averred that the withdrawals had been an "inside job." His denial
effectively traversed FEBTC’s claim of his direct and personal liability for the withdrawals, that it
would lose the case unless it competently and sufficiently established that he had personally made
the withdrawals himself, or that he had caused the withdrawals. In other words, it carried the burden
of proof.

Burden of proof is a term that refers to two separate and quite different concepts, namely: (a) the risk
of non-persuasion, or the burden of persuasion, or simply persuasion burden; and (b) the duty of
producing evidence, or the burden of going forward with the evidence, or simply the production
burden or the burden of evidence.10 In its first concept, it is the duty to establish the truth of a given
proposition or issue by such a quantum of evidence as the law demands in the case at which the
issue arises.11 In its other concept, it is the duty of producing evidence at the beginning or at any
subsequent stage of trial in order to make or meet a prima facie case. Generally speaking, burden of
proof in its second concept passes from party to party as the case progresses, while in its first
concept it rests throughout upon the party asserting the affirmative of the issue.12

The party who alleges an affirmative fact has the burden of proving it because mere allegation of the
fact is not evidence of it.13 Verily, the party who asserts, not he who denies, must prove.14

In civil cases, the burden of proof is on the party who would be defeated if no evidence is given on
either side.15 This is because our system frees the trier of facts from the responsibility of investigating
and presenting the facts and arguments, placing that responsibility entirely upon the respective
parties.16 The burden of proof, which may either be on the plaintiff or the defendant, is on the plaintiff
if the defendant denies the factual allegations of the complaint in the manner required by the Rules
of Court; or on the defendant if he admits expressly or impliedly the essential allegations but raises
an affirmative defense or defenses, that, if proved, would exculpate him from liability.17

Section 1, Rule 133 of the Rules of Court sets the quantum of evidence for civil actions, and
delineates how preponderance of evidence is determined, viz :

Section 1. In civil cases, the party having the burden of proof must establish his case by a
preponderance of evidence. In determining where the preponderance or superior weight of evidence
on the issues involved lies, the court may consider all the facts and circumstances of the case, the
witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts
to which they are testifying, the nature of the facts to which they testify, the probability or
improbability of their testimony, their interest or want of interest, and also their personal credibility so
far as the same may legitimately appear upon the trial. The court may also consider the number of
witnesses, though the preponderance is not necessarily with the greater number. (Emphasis
supplied)
As the rule indicates, preponderant evidence refers to evidence that is of greater weight, or more
convincing, than the evidence offered in opposition to it.18 It is proof that leads the trier of facts to find
that the existence of the contested fact is more probable than its nonexistence.19

Being the plaintiff, FEBTC must rely on the strength of its own evidence instead of upon the
weakness of Chan’s evidence. Its burden of proof thus required it to preponderantly demonstrate
that his ATM card had been used to make the withdrawals, and that he had used the ATM card and
PIN by himself or by another person to make the fraudulent withdrawals. Otherwise, it could not
recover from him any funds supposedly improperly withdrawn from the ATM account. We remind
that as a banking institution, FEBTC had the duty and responsibility to ensure the safety of the funds
it held in trust for its depositors. It could not avoid the duty or evade the responsibility because it
alone should bear the price for the fraud resulting from the system bug on account of its exclusive
control of its computer system.

Did FEBTC discharge its burden of proof?

The CA ruled that FEBTC did not because –

After a review of the records of this case, we find the totality of evidence submitted by FEBTC
insufficient to establish the crucial facts that would justify a judgment in its favor.

To our mind, the fact that Chan’s account number and ATM card number were the ones used for the
withdrawals, by itself, is not sufficient to support the conclusion that he should be deemed to have
made the withdrawals.

FEBTC offers in this regard the PNB ATM’s journal tapes to prove the withdrawals and their details –
the time of the transactions; the account number used; the ATM card number; and the amount
withdrawn – and at the same time declared that these tapes are authentic and genuine. These
tapes, however, are not as reliable as FEBTC represented them to be as they are not even internally
consistent. A disturbing internal discrepancy we note relates to the amounts reflected as "ledger
balance" and "available balance". We find it strange that for every 4,000.00 pesos allegedly
withdrawn by Chan, the available balance increased rather than diminished. Worse, the amount of
available balance as reflected in the tapes was way above the actual available balance of less than
Php200,000.00 that Chan’s current account had at that time. These discrepancies must inevitably
reflect on the integrity of the journal tapes; the proven inconsistencies in some aspects of these
tapes leave the other aspects suspect and uncertain.

But more than this, we are not convinced that the tapes lead us to the inevitable conclusion that
Chan’s card, rather than a replacement card containing Chan’s PIN and card number or some other
equivalent scheme, was used. To our mind, we cannot discount this possibility given the available
technology making computer fraud a possibility, the cited instances of computer security breaches,
the admitted system bug, and – most notably – the fact that the withdrawals were made under
circumstances that took advantage of the system bug. System errors of this kind, when taken
advantage of to the extent that had happened in this case, are planned for. Indeed, prior preparation
must take place to avoid suspicion and attention where the withdrawal was made for seven (7) long
hours in a place frequented by hundreds of guests, over 242 transactions where the physical volume
of the money withdrawn was not insignificant. To say that this was done by the owner of the account
based solely on the records of the transactions, is a convenient but not a convincing explanation.20

In our view, the CA’s ruling was correct.

To start with, Edgar Munarriz, FEBTC’s very own Systems Analyst, admitted that the bug infecting
the bank’s computer system had facilitated the fraudulent withdrawals.21 This admission impelled the
CA to thoroughly dissect the situation in order to determine the consequences of the intervention of
the system bug in FEBTC’s computer system. It ultimately determined thusly:

Significantly, FEBTC made the admission that there was a program bug in its computer system. To
digress, computers are run based on specific pre-arranged instructions or "programs" that act on
data or information that computer users input. Computers can only process these inputted data or
information according to the installed programs. Thus, computers are as efficient, as accurate and
as convenient to use as the instructions in their installed programs. They can count, sort, compute
and arrive at decisions but they do so only and strictly in accordance with the programs that make
them work. To cite an easy example, a computer can be programmed to sort a stack of cards
prepared by male and female clients, into male and female stacks, respectively. To do this, the
computer will first scan a card and look at the place ("a field") where the male/female information can
be found. This information may be in an appropriate box which the bank client checks or shades to
indicate if he/she is male or female. The computer will check if the box beside the word "Female" is
shaded. If it is, it will send the card to the "Female" bin. If the box beside the "male" is shaded, it will
send the card to the "Male" bin. If both the squares are shaded or none is shaded or the card cannot
be read, it will send the card to the "Unknown" bin. This way, the female cards and the male cards
can be sorted efficiently. However, the program instructions can be written in such a way that the
computer can only make two decisions, that is, if the Female box is shaded, then the card goes to
the "Female" bin; otherwise, the card goes to the "Male" bin. In this program, all the Female cards
will be sorted correctly but the Male bin will contain all the other cards, that is, the Male cards, the
cards with no shading at all, and all the other cards that cannot be classified.

The imperfect results arose from the imperfect program instructions or from a program "bug".
Something very close to this example happened in the present case.

According to the testimony of the FEBTC’s systems analyst, there were two computer programs that
were involved in the transactions: CAPDROTH and SCPUP 900. CAPDROTH is the program that
validates if the account exists in the FEBTC files, if the transaction is valid, and if the branch where
the account is maintained is ON-LINE (i.e. continuously sending data). When the Chan transaction
entered the system, it was validated by CAPDROTH which, on seeing that the FEBTC-Ongpin
branch was off-line, returned a decision code passing on the decision to authorize the transaction to
the SCPUP 900, another module. However, SCPUP 900 was not expecting this type of response or
decision code. As the SCPUP 900 program was originally written, it will send back an error message
and abort a requested transaction if it receives an error message from any other module; otherwise,
it will send a message authorizing the transaction. In other words, SCPUP 900 had only two
decisions to make: check if the message is an error message, if not then, authorize. Since what it
received in the disputed transactions were not error messages and were not also authorizations, it
sent back authorization messages allowing the cash withdrawals. It kept on sending authorization
messages for the 242 cash withdrawal transactions made from Chan’s account between the evening
of May 4 and early morning of May 5, 1992. This program bug was the reason the 242 cash
withdrawals were allowed by the PNB ATM-Megalink machine.

The program bug occurred because of the simultaneous presence of three conditions that allowed it
to happen: (1) the withdrawal transactions involved a current account; (2) the current account was
with a branch that at that time was off-line; and (3) the transaction originated from MEGALINK (i.e.,
through MEGALINK through a member bank other than FEBTC). Because of the bug, Chan’s
account was not accessed at the time of the transactions so that withdrawals in excess of what the
account contained were allowed. Additionally, FEBTC’s rule that only a maximum withdrawable
amount per day (in the present case ₱50,000.00 per day) can be made from an ATM account, was
by-passed. Thus, 242 withdrawals were made over an eight hour period, in the total amount of
₱967,000.00.22

Secondly, the RTC’s deductions on the cause of the withdrawals were faulty. In holding against
Chan, the RTC chiefly relied on inferences drawn from his acts subsequent to the series of
withdrawals, specifically his attempt to withdraw funds from his account at an FEBTC ATM facility in
Ermita, Manila barely two days after the questioned withdrawals; his issuance of a check for
₱190,000.00 immediately after the capture of his ATM card by the ATM facility; his failure to
immediately report the capture of his ATM card to FEBTC; and his going to FEBTC only after the
dishonor of the check he had issued following the freezing of his account. The inferences were not
warranted, however, because the subsequent acts would not persuasively establish his actual
participation in the withdrawals due to their being actually susceptible of other interpretations
consistent with his innocence.

We join the CA’s observation that Chan’s subsequent acts "could have been impelled by so many
reasons and motivations, and cannot simply be given the meaning that the lower court attributed to
them," and, instead, were even consistent with the purpose and nature of his maintaining the current
account deposit with FEBTC, rendering the acts "not unusual nor … illegal."23 Although he was
expected to forthwith bring his card’s capture to FEBTC’s attention, that he did not do so could have
other plausible explanations consistent with good faith, among them his being constantly occupied
as a businessman to attend to the multifarious activities of his business. He might have also honestly
believed that he still had the sufficient funds in his current account, as borne out by his issuance of a
check instead after the capture of the card so as not for him to undermine any financial obligation
then becoming due. Nor should his opting to withdraw funds from his account at the ATM facility in
Ermita in less than two days after the questioned withdrawals manifest responsibility on his part, for
he could also be properly presumed to be then still unaware of the situation involving his account.
We note that his letters24 written in response to FEBTC’s written demands to him disclosed honest
intentions rather than malice.

Thirdly, the RTC ignored the likelihood that somebody other than Chan familiar with the bug infection
of FEBTC’s computer system at the time of the withdrawals and adept with the workings of the
computer system had committed the fraud. This likelihood was not far-fetched considering that
FEBTC had immediately adopted corrective measures upon its discovery of the system bug, by
which FEBTC admitted its negligence in ensuring an error-free computer system; and that the
system bug had affected only the account of Chan.25 Truly, the trial court misapprehended the extent
to which the system bug had made the computer system of FEBTC stumble in serious error.

Fourthly, and perhaps the most damaging lapse, was that FEBTC failed to establish that the PNB-
MEGALINK’s ATM facility at the Manila Pavilion Hotel had actually dispensed cash in the very
significantly large amount alleged during the series of questioned withdrawals. For sure, FEBTC
should have proved the actual dispensing of funds from the ATM facility as the factual basis for its
claim against Chan. It did require PNB to furnish a validated showing of the exact level of cash then
carried by the latter’s ATM facility in the Manila Pavilion Hotel on May 4, 1992.26 Yet, when PNB
employee Erwin Arellano stood as a witness for FEBTC, he confirmed the authenticity of the journal
tapes that had recorded Chan’s May 4 and May 5, 1992 supposed ATM transactions but did not
categorically state how much funds PNB-MEGALINK’s ATM facility at the Manila Pavilion Hotel had
exactly carried at the time of the withdrawals, particularly the amounts immediately preceding and
immediately following the series of withdrawals. The omission left a yawning gap in the evidence
against Chan.

And lastly, Chan’s allegation of an "inside job" accounting for the anomalous withdrawals should not
be quickly dismissed as unworthy of credence or weight. FEBTC employee Manuel Del Castillo,
another witness for FEBTC, revealed that FEBTC had previously encountered problems of bank
accounts being debited despite the absence of any withdrawal transactions by their owners. He
attributed the problems to the erroneous tagging of the affected accounts as somebody else’s
account, allowing the latter to withdraw from the affected accounts with the use of the latter’s own
ATM card, and to the former’s account being debited.27 The revelation of Del Castillo tended to
support Chan’s denial of liability, as it showed the possibility of withdrawals being made by another
person despite the PIN being an exclusive access number known only to the cardholder.28

It is true that Del Castillo also declared that FEBTC did not store the PINs of its clients’ ATM
cards.  However, he mentioned that FEBTC had stored the opposite numbers corresponding to the
1âwphi1

PINs, which meant that the PINs did not remain entirely irretrievable at all times and in all cases by
any of its officers or employees with access to the bank’s computer system. Accordingly, Del
Castillo’s assertion that the PINs were rendered useless upon being entered in the bank’s computer
system did not entirely disclose how the information on the PINs of the depositors was stored or
discarded as to become useless for any purpose.

In view of the foregoing, FEBTC did not present preponderant evidence proving Chan’s liability for
the supposedly fraudulent withdrawals. It thus failed in discharging its burden of persuasion.

WHEREFORE, the Court AFFIRMS the decision of the Court of Appeals; and DIRECTS the
petitioner to pay the costs of suit.

SO ORDERED.

FIRST DIVISION

March 24, 2014

G.R. No. 161151

BJDC CONSTRUCTION, REPRESENTED BY ITS MANAGER/PROPRIETOR JANET S. DELA

CRUZ, Petitioner,
vs.
NENA E. LANUZO, CLAUDETTE E. LANUZO, JANET E. LANUZO, JOAN BERNABE E.
LANUZO, and RYAN JOSEE. LANUZO, Respondent.

DECISION
BERSAMIN, J.:

The party alleging the negligence of the other as the cause of injury has the burden to establish the
allegation with competent evidence. If the action based on negligence is civil in nature, the proof
required is preponderance of evidence.

This case involves a claim for damages arising from the death of a motorcycle rider in a nighttime
accident due to the supposed negligence of a construction company then undertaking re-blocking
work on a national highway. The plaintiffs insisted that the accident happened because the
construction company did not provide adequate lighting on the site, but the latter countered that the
fatal accident was caused by the negligence of the motorcycle rider himself. The trial court decided
in favor of the construction company, but the Court of Appeals (CA) reversed the decision and ruled
for the plaintiffs.

Hence, this appeal.

Antecedents

On January 5, 1998, Nena E. Lanuzo (Nena) filed a complaint for damages  against BJDC
1

Construction (company), a single proprietorship engaged in the construction business under its
Manager/Proprietor Janet S. de la Cruz. The company was the contractor of the re-blocking project
to repair the damaged portion of one lane of the national highway at San Agustin, Pili, Camarines
Sur from September 1997to November 1997.

Nena alleged that she was the surviving spouse of the late Balbino Los Baños Lanuzo (Balbino) who
figured in the accident that transpired at the site of the re-blocking work at about 6:30 p.m. on
October 30, 1997; that Balbino’s Honda motorcycle sideswiped the road barricade placed by the
company in the right lane portion of the road, causing him to lose control of his motorcycle and to
crash on the newly cemented road, resulting in his instant death; and that the company’s failure to
place illuminated warning signs on the site of the project, especially during night time, was the
proximate cause of the death of Balbino. She prayed that the company be held liable for damages,
to wit: (a) P5,000.00 as the actual damage to Balbino’s motorcycle; (b) P100,000.00 as funeral and
burial expenses; (c) P559,786.00 representing the "unearned income in expectancy" of Balbino; (d)
P100,000.00 as moral damages; (e) P75,000.00 as attorney’s fees, plus P1,500.00 per court
appearance; and (f) P20,000.00 as litigation costs and other incidental expenses.

In its answer,  the company denied Nena’s allegations of negligence, insisting that it had installed
2

warning signs and lights along the highway and on the barricades of the project; that at the time of
the incident, the lights were working and switched on; that its project was duly inspected by the
Department of Public Works and Highways (DPWH), the Office of the Mayor of Pili, and the Pili
Municipal Police Station; and that it was found to have satisfactorily taken measures to ensure the
safety of motorists.

The company further alleged that since the start of the project in September 1997, it installed several
warning signs, namely: (a) big overhead streamers containing the words SLOW DOWN ROAD
UNDER REPAIR AHEAD hung approximately 100 meters before the re-blocking site, one facing the
Pili-bound motorists and another facing the Naga-bound motorists; (b) road signs containing the
words SLOW DOWN ROAD UNDER REPAIR 100 METERS AHEAD placed on the road shoulders
below the streamers; (c) road signs with the words SLOW DOWN ROAD UNDER REPAIR 50
METERS AHEAD placed 50 meters before the project site; (d) barricades surrounded the affected
portion of the highway, and a series of 50-watt light bulbs were installed and switched on daily from
6:00 p.m. until the following morning; (e) big warning signs containing the words SLOW DOWN
ROAD UNDER REPAIR and SLOW DOWN MEN WORKING were displayed at both ends of the
affected portion of the highway with illumination from two 50-watt bulbs from 6:00 p.m. until the
following morning; and (f) the unaffected portion of the highway was temporarily widened in the
adjacent road shoulder to allow two-way vehicular traffic.

The company insisted that the death of Balbino was an accident brought about by his own
negligence, as confirmed by the police investigation report that stated, among others, that Balbino
was not wearing any helmet at that time, and the accident occurred while Balbino was overtaking
another motorcycle; and that the police report also stated that the road sign/barricade installed on
the road had a light. Thus, it sought the dismissal of the complaint and prayed, by way of
counterclaim, that the Nena be ordered to pay P100,000.00 as attorney’s fees, as well as moral
damages to be proven in the course of trial.

The RTC subsequently directed the amendment of the complaint to include the children of Nena and
Balbino as co-plaintiffs, namely: Janet, Claudette, Joan Bernabe and Ryan Jose, all surnamed
Lanuzo. Hence, the plaintiffs are hereinafter be referred to as the Lanuzo heirs.

Decision of the RTC

On October 8, 2001, the RTC rendered judgment in favor of the company, as follows:

Plaintiffs are the survivors of Balbino Los Baños Lanuzo who met a traumatic death on 30 October,
1997 at about 6:30 p.m., when he bumped his motorcycle on a barricade that was lighted with an
electric bulb, protecting from traffic the newly-reblocked cement road between San Agustin and San
Jose, Pili, Camarines Sur; they claim defendant’s OMISSION in lighting up the barricaded portion of
the reblocking project being undertaken by defendant was the proximate cause of the accident,
leaving them bereaved and causing them actual and moral damages.

Defendant DENIED the claim of plaintiffs; both parties offered testimonial and documentary
evidence, from which this Court,

FINDS

that: plaintiff DID NOT present an eyewitness account of the death of their decedent; on the
contrary, the flagman of defendant was present when the accident occurred, which was caused by
the decedent having overtaken a motorcycle ahead of [him] and on swerving, to avoid the barricade,
hit it, instead, breaking the lighted electric bulb on top of the barricade, resulting in the fall of the
decedent about 18 paces from where his motorcycle fell on the reblocked pavement; the police
investigator, policeman Corporal, by Exh. 1, confirmed the tale of the flagman, aside from confirming
the presence of the warning devices placed not only on the premises but at places calculated to
warn motorists of the ongoing reblocking project.

OPINION

From the foregoing findings, it is the opinion of this Court that the plaintiffs were unable to make out
a case for damages, with a preponderance of evidence.

WHEREFORE, Judgment is hereby rendered, DISMISSING the complaint. 3

Decision of the CA
The Lanuzo heirs appealed to the CA.

On August 11, 2003, the CA promulgated its decision declaring that the issue was whether the
company had installed adequate lighting in the project so that motorists could clearly see the
barricade placed on the newly cemented lane that was then still closed to vehicular traffic,  thereby
4

reversing the judgment of the RTC, and holding thusly:

WHEREFORE, premises considered, the present appeal is hereby GRANTED and the decision
appealed from in Civil Case No. P-2117 is hereby REVERSED and SET ASIDE. A new judgment is
hereby entered ordering the defendant-appellee to pay the plaintiff-appellants, heirs of the victim
Balbino L. B. Lanuzo, the sums of P50,000.00 as death indemnity, P20,000.00 by way of temperate
damages and P939,736.50 as loss of earning capacity of the deceased Balbino L. B. Lanuzo.

SO ORDERED. 5

The CA ruled that the following elements for the application of the doctrine of res ipsa loquitur were
present, namely: (1) the accident was of such character as to warrant an inference that it would not
have happened except for the defendant’s negligence; (2) the accident must have been caused by
an agency or instrumentality within the exclusive management or control of the person charged with
the negligence complained of; and (3) the accident must not have been due to any voluntary action
or contribution on the part of the person injured.

The CA regarded as self-serving the testimony of Eduardo Zamora, an employee of the company
who testified that there was an electric bulb placed on top of the barricade on the area of the
accident. It held that Zamora’s statement was negated by the statements of Ernesto Alto and
Asuncion Sandia to the effect that they had passed by the area immediately before the accident and
had seen the road to be dark and lit only by a gas lamp. It noted that SPO1 Corporal, the police
investigator, had noticed the presence of lighted electric bulbs in the area, but the same had been
installed on the other side of the street opposite the barricade.

The CA ruled that the placing of road signs and streamers alone did not prove that the electric bulbs
were in fact switched on at the time of the accident as to sufficiently light up the newly re-blocked
portion of the highway. It opined that "[t]he trial court gave undue weight to the self- serving
statement of appellee’s employee, Eduardo Zamora, which was supposedly corroborated by SPO1
Pedro Corporal. SPO1 Corporal arrived at the scene only after the accident occurred, and thus the
electric bulbs could have already been switched on by Zamora who was at the area of the project." It
concluded that the negligence of the company was the proximate cause of Balbino’s death; hence,
the company was liable for damages.

The company filed a motion for reconsideration,  but the CA denied the motion in the resolution
6

promulgated on November 13, 2003.

Issues

In this appeal, the company submits the following issues, namely:

I. The application by the Honorable Court of Appeals of the doctrine of res ipsa loquitur to the case
at bar, despite and contrary to the finding, among others, by the trial court that the proximate cause
of the accident is the victim’s own negligence, is "not in accord with the law or with the applicable
decisions of the Supreme Court" [Sec. 6 (a), Rule 45, Rules of Court].
II. The Honorable Court of Appeals, by substituting its own findings of fact and conclusion with those
of the trial court despite the lack of "strong or cogent reasons" therefor, "has so far departed from the
accepted and usual course of judicial proceedings ... as to call for an exercise of the power of
supervision" by this Honorable Supreme Court [Sec. 6 (b), Ibid.].

III. The findings by the Honorable Court of Appeals that respondents (appellants therein) "had
satisfactorily presented a prima facie case of negligence which the appellee (petitioner herein) had
not overcome with an adequate explanation" and which alleged negligence is "the proximate cause
of death of Lanuzo" are manifestations of grave abuse of discretion in the appreciation of facts, and
constitute a judgment based on a misinterpretation of facts, which justify a review by this Honorable
Supreme Court. 7

The company reiterates the categorical finding of the RTC that the proximate cause of the accident
was Balbino’s own negligence, and that such finding was based on the conclusion stated by SPO1
Corporal in his investigation report to the effect that the incident was "purely self accident," and on
the unrebutted testimony of Zamora to the effect that Balbino was driving his motorcycle at a fast
speed trying to overtake another motorcycle rider before hitting the barricade. On the other hand, it
insists that its documentary and testimonial evidence proved its exercise of due care and
observance of the legally prescribed safety requirements for contractors.

The company maintains that Balbino was familiar with the re- blocking project that had been going
on for months because he had been passing the area at least four times a day during weekdays in
going to and from his place of work in the morning and in the afternoon; and that he could have
avoided the accident had he exercised reasonable care and prudence.

The company assails the application of the doctrine of res ipsa loquitur, positing that the Lanuzo
heirs did not establish all the requisites for the doctrine to apply.

Anent the first requisite, the company states that the Lanuzo heirs did not successfully counter its
documentary and testimonial evidence showing that Balbino’s own negligence had caused the
accident. It cites the fact that Balbino was familiar with the road conditions and the re-blocking
project because he had been passing there daily; and that Balbino had been driving too fast and not
wearing the required helmet for motorcycle drivers, which were immediately evident because he had
been thrown from his motorcycle and had landed "18 paces away" from the barricade that he had
hit.

On the second requisite, the company argues that Balbino’s driving and operation of his motorcycle
on the day of the accident indicated that the accident was not within its exclusive management and
control; and that as to the matters that were within its control, it sufficiently showed its observance of
due and reasonable care and its compliance with the legally prescribed safety requirements.

Regarding the third requisite, the company reminds that Zamora and SPO1 Corporal revealed that
Balbino was overtaking another motorcycle rider before hitting the barricade. The credibility of said
witnesses was not challenged, and their testimonies not rebutted; hence, the CA erred in relying on
the recollections of Asuncion Sandia and Ernesto Alto who were not present when the incident took
place. Sandia and Alto’s testimonies could not be accorded more weight than Zamora’s eyewitness
account, considering that the latter was believed by the trial judge who had the first-hand opportunity
to observe the demeanor of the witnesses.

Whose negligence was the proximate cause of the death of Balbino?

Ruling of the Court

Inasmuch as the RTC and the CA arrived at conflicting findings of fact on who was the negligent
party, the Court holds that an examination of the evidence of the parties needs to be undertaken to
properly determine the issue.  The Court must ascertain whose evidence was preponderant, for
8

Section 1, Rule 133 of the Rules of Court mandates that in civil cases, like this one, the party having
the burden of proof must establish his case by a preponderance of evidence. 9

Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish
his claim or defense by the amount of evidence required by law.  It is basic that whoever alleges a
10

fact has the burden of proving it because a mere allegation is not evidence.  Generally, the party
11

who denies has no burden to prove.  In civil cases, the burden of proof is on the party who would be
12

defeated if no evidence is given on either side.  The burden of proof is on the plaintiff if the
13

defendant denies the factual allegations of the complaint in the manner required by the Rules of
Court, but it may rest on the defendant if he admits expressly or impliedly the essential allegations
but raises affirmative defense or defenses, which if proved, will exculpate him from liability. 14

By preponderance of evidence, according to Raymundo v. Lunaria: 15

x x x is meant that the evidence as a whole adduced by one side is superior to that of the other. It
refers to the weight, credit and value of the aggregate evidence on either side and is usually
considered to be synonymous with the term "greater weight of evidence" or "greater weight of the
credible evidence." It is evidence which is more convincing to the court as worthy of belief than that
which is offered in opposition thereto.

In addition, according to United Airlines, Inc. v. Court of Appeals,  the plaintiff must rely on the
16

strength of his own evidence and not upon the weakness of the defendant’s.

Upon a review of the records, the Court affirms the findings of the RTC, and rules that the Lanuzo
heirs, the parties carrying the burden of proof, did not establish by preponderance of evidence that
the negligence on the part of the company was the proximate cause of the fatal accident of Balbino.

Negligence, the Court said in Layugan v. Intermediate Appellate Court,  is "the omission to do
17

something which a reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affairs, would do, or the doing of something which a prudent and reasonable man
would not do,  or as Judge Cooley defines it, ‘(t)he failure to observe for the protection of the
18

interests of another person, that degree of care, precaution, and vigilance which the circumstances
justly demand, whereby such other person suffers injury.’"  In order that a party may be held liable
19

for damages for any injury brought about by the negligence of another, the claimant must prove that
the negligence was the immediate and proximate cause of the injury. Proximate cause is defined as
"that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause,
produces the injury and without which the result would not have occurred." 20

The test by which the existence of negligence in a particular case is determined is aptly stated in the
leading case of Picart v. Smith,  as follows:
21

The test by which to determine the existence of negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution
which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of
negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary
conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case
is not determined by reference to the personal judgment of the actor in the situation before him. The
law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence
and prudence and determines liability by that.
The question as to what would constitute the conduct of a prudent man in a given situation must of
course be always determined in the light of human experience and in view of the facts involved in
the particular case. Abstract speculation cannot here be of much value but this much can be
profitably said: Reasonable men govern their conduct by the circumstances which are before them
or known to them. They are not, and are not supposed to be, omniscient of the future. Hence they
can be expected to take care only when there is something before them to suggest or warn of
danger. Could a prudent man, in the case under consideration, foresee harm as a result of the
course actually pursued? If so, it was the duty of the actor to take precautions to guard against that
harm. Reasonable foresight of harm, followed by the ignoring of the suggestion born of this
prevision, is always necessary before negligence can be held to exist. Stated in these terms, the
proper criterion for determining the existence of negligence in a given case is this: Conduct is said to
be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect
harmful to another was sufficiently probable to warrant his foregoing the conduct or guarding against
its consequences.

First of all, we note that the Lanuzo heirs argued in the trial and appellate courts that there was a
total omission on the part of the company to place illuminated warning signs on the site of the
project, especially during night time, in order to warn motorists of the project. They claim that the
omission was the proximate cause of the death of Balbino.  In this appeal, however, they contend
22

that the negligence of the company consisted in its omission to put up adequate lighting and the
required signs to warn motorists of the project, abandoning their previous argument of a total
omission to illuminate the project site.

During the trial, the Lanuzo heirs attempted to prove inadequacy of illumination instead of the total
omission of illumination. Their first witness was Cesar Palmero, who recalled that lights had been
actually installed in the site of the project. The next witness was Ernesto Alto, who stated that he had
seen three light bulbs installed in the site, placed at intervals along the stretch of the road covered by
the project. Alto further stated that he had passed the site on board his tricycle on October 30, 1997
prior to the accident, and had seen only a gas lamp, not light bulbs, on his approach. Another
witness of the plaintiffs, Asuncion Sandia, claimed that she had also passed the site on board a bus
on the night just prior to the accident, and had seen the site to be dark, with only one lane open to
traffic, with no light at all. Obviously, the witnesses of the plaintiffs were not consistent on their
recollections of the significant detail of the illumination of the site.

In contrast, the company credibly refuted the allegation of inadequate illumination. Zamora, its
flagman in the project, rendered an eyewitness account of the accident by stating that the site had
been illuminated by light bulbs and gas lamps, and that Balbino had been in the process of
overtaking another motorcycle rider at a fast speed when he hit the barricade placed on the newly
cemented road. On his part, SPO1 Corporal, the police investigator who arrived at the scene of the
accident on October 30, 1997, recalled that there were light bulbs on the other side of the barricade
on the lane coming from Naga City; and that the light bulb on the lane where the accident had
occurred was broken because it had been hit by the victim’s motorcycle. Witnesses Gerry Alejo and
Engr. Victorino del Socorro remembered that light bulbs and gas lamps had been installed in the
area of the project.

Secondly, the company presented as its documentary evidence the investigation report dated
December 3, 1997 of SPO1 Corporal (Annex 1), the relevant portions of which indicated the finding
of the police investigator on the presence of illumination at the project site, viz:

SUBJECT: Investigation Report Re: Homicide Thru Reckless Imprudence

(Self Accident)
 xxxx

II.MATTERS INVESTIGATED:

1.To determine how the incident happened.

2.To determine the vehicle involved.

III. FACTS OF THE CASE:

3.At 6:45 P.M. October 30, 1997, Elements of Pili Municipal Police Station led by SPO2
Melchor Estallo, SPO2 Cesar Pillarda, both members of the patrol section and SPO1 Pedro
D. Corporal, investigator reported having conducted an on the spot investigation re: vehicular
incident (Self Accident) that happened on or about 6:30 o’clock in the evening of October 30,
1997 along national highway, San Agustin, Pili, Camarines Sur, wherein one Balbino Lanuzo
y Doe, of legal age, married, a public school teacher, a resident of San Jose, Pili, Camarines
Sur while driving his Honda motorcycle 110 CC enroute to San Jose, Pili, Camarines Sur
from Poblacion, this municipality and upon reaching at road re: blocking portion of the
national highway at barangay San Agustin, Pili, Camarines Sur and while overtaking another
motorcycle ahead incidentally side-swiped a road sign/barricade installed at the lane road re:
blocking of the national highway, causing said motorcycle rider to swerved his ridden
motorcycle to the right and stumble down and fell to the concrete cemented road. Victim was
rushed to Bicol Medical Center, Naga City for treatment but was pronounced dead on arrival.

4.That upon arrival at the scene of the incident it was noted that road sign/barricade installed
on the road has a light.

5.That said road was under repair for almost a month which one lane portion of the national
highway is possible of all passing vehicles from south and north bound.

6.That said motorcycle stumble down on the newly repair portion of the national highway and
the driver lying down beside the motorcycle.

xxxx

8.That one of the passerby revealed that the victim possibly be miscalculated the road block
that made him to tumble down when he applied sudden brake.

IV. FINDINGS/DISCUSSION:

9.The time of the incident was at about 6:30 o’clock in the evening a time wherein dark of the
night is approaching the vision of the driver is affected with the changing condition and it is
all the time when driver should lights his driven vehicle, as to this case, the driver Balbino
Lanuzo y Doe (victim has exercise all precautionary measures to avoid accident but due to
self accident he incidentally sideswiped the road sign/barricade of the re: Blocking portion of
the national highway resulting him to stumble down his motorcycle and fell down to the
concrete cement road.

10.The driver/victim met unexpectedly (sic) along that one lane potion of the re: blocking and
considering it was night time, confusion overthrew him and because of sudden impulse, he
lost control on the motorcycle he was driving.
 11.That the driver/victim has no crush (sic) helmet at the time of the incident considering that
it should be a basic requirement as to prevent from any accident.

V. RECOMMENDATION:

12.Basing on the above discussion and facts surroundings the case was purely self accident
resulting to Homicide Thru Reckless Imprudence and the case must be closed. (Emphasis
ours.)23

Additionally, the company submitted the application for lighting permit covering the project site
(Annex 7) to prove the fact of installation of the electric light bulbs in the project site.

In our view, the RTC properly gave more weight to the testimonies of Zamora and SPO1 Corporal
than to those of the witnesses for the Lanuzo heirs.  There was justification for doing so, because
1âwphi1

the greater probability pertained to the former. Moreover, the trial court’s assessment of the
credibility of the witnesses and of their testimonies is preferred to that of the appellate court’s
because of the trial court’s unique first-hand opportunity to observe the witnesses and their
demeanor as such. The Court said in Cang v. Cullen: 24

The findings of the trial court on the credibility of witnesses are accorded great weight and respect -
even considered as conclusive and binding on this Court - since the trial judge had the unique
opportunity to observe the witness firsthand and note his demeanor, conduct and attitude under
grueling examination. Only the trial judge can observe the furtive glance, blush of conscious shame,
hesitation, flippant or sneering tone, calmness, sigh of a witness, or his scant or full realization of an
oath - all of which are useful aids for an accurate determination of a witness' honesty and sincerity.
He can thus be expected to determine with reasonable discretion which testimony is acceptable and
which witness is worthy of belief.

Absent any showing that the trial court's calibration of the credibility of the witnesses was flawed, we
are bound by its assessment. This Court will sustain such findings unless it can be shown that the
trial court ignored, overlooked, misunderstood, misappreciated, or misapplied substantial facts and
circumstances, which, if considered, would materially affect the result of the case. 25

The Court observes, too, that SPO1 Corporal, a veteran police officer detailed for more than 17
years at the Pili Police Station, enjoyed the presumption of regularity in the performance of his
official duties.  The presumption, although rebuttable, stands because the Lanuzo heirs did not
26

adduce evidence to show any deficiency or irregularity in the performance of his official duty as the
police investigator of the accident. They also did not show that he was impelled by any ill motive or
bias to testify falsely.

Thirdly, the CA unreasonably branded the testimonies of Zamora and SPO1 Corporal as "self-
serving." They were not. Self-serving evidence refers to out-of-court statements that favor the
declarant’s interest;  it is disfavored mainly because the adverse party is given no opportunity to
27

dispute the statement and their admission would encourage fabrication of testimony.  But court
28

declarations are not self-serving considering that the adverse party is accorded the opportunity to
test the veracity of the declarations by cross-examination and other methods.

There is no question that Zamora and SPO1 Corporal were thoroughly cross-examined by the
counsel for the Lanuzo heirs. Their recollections remained unchallenged by superior contrary
evidence from the Lanuzo heirs.
Fourthly, the doctrine of res ipsa loquitur had no application here. In Tan v. JAM Transit, Inc.,  the
29

Court has discussed the doctrine thusly:

Res ipsa loquitur is a Latin phrase that literally means "the thing or the transaction speaks for itself."
It is a maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a presumption of negligence, or make out a
plaintiff's prima facie case, and present a question of fact for defendant to meet with an explanation.
Where the thing that caused the injury complained of is shown to be under the management of the
defendant or his servants; and the accident, in the ordinary course of things, would not happen if
those who had management or control used proper care, it affords reasonable evidence — in the
absence of a sufficient, reasonable and logical explanation by defendant — that the accident arose
from or was caused by the defendant's want of care. This rule is grounded on the superior logic of
ordinary human experience, and it is on the basis of such experience or common knowledge that
negligence may be deduced from the mere occurrence of the accident itself. Hence, the rule is
applied in conjunction with the doctrine of common knowledge.

For the doctrine to apply, the following requirements must be shown to exist, namely: (a) the
accident is of a kind that ordinarily does not occur in the absence of someone’s negligence; (b) it is
caused by an instrumentality within the exclusive control of the defendant or defendants; and (c) the
possibility of contributing conduct that would make the plaintiff responsible is eliminated. 30

The Court has warned in Reyes v. Sisters of Mercy Hospital,  however, that "res ipsa loquitur is not
31

a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending
upon the circumstances of each case."

Based on the evidence adduced by the Lanuzo heirs, negligence cannot be fairly ascribed to the
company considering that it has shown its installation of the necessary warning signs and lights in
the project site. In that context, the fatal accident was not caused by any instrumentality within the
exclusive control of the company. In contrast, Balbino had the exclusive control of how he operated
and managed his motorcycle. The records disclose that he himself did not take the necessary
precautions. As Zamora declared, Balbino overtook another motorcycle rider at a fast speed, and in
the process could not avoid hitting a barricade at the site, causing him to be thrown off his
motorcycle onto the newly cemented road. SPO1 Corporal’s investigation report corroborated
Zamora’s declaration. This causation of the fatal injury went uncontroverted by the Lanuzo heirs.

Moreover, by the time of the accident, the project, which had commenced in September 1997, had
been going on for more than a month and was already in the completion stage. Balbino, who had
passed there on a daily basis in going to and from his residence and the school where he then
worked as the principal, was thus very familiar with the risks at the project site. Nor could the Lanuzo
heirs justly posit that the illumination was not adequate, for it cannot be denied that Balbino’s
motorcycle was equipped with headlights that would have enabled him at dusk or night time to see
the condition of the road ahead. That the accident still occurred surely indicated that he himself did
not exercise the degree of care expected of him as a prudent motorist.

According to Dr. Abilay, the cause of death of Balbino was the fatal depressed fracture at the back of
his head, an injury that Dr. Abilay opined to be attributable to his head landing on the cemented road
after being thrown off his motorcycle. Considering that it was shown that Balbino was not wearing
any protective head gear or helmet at the time of the accident, he was guilty of negligence in that
respect. Had he worn the protective head gear or helmet, his untimely death would not have
occurred.
The RTC was correct on its conclusions and findings that the company was not negligent in ensuring
safety at the project site. All the established circumstances showed that the proximate and
immediate cause of the death of Balbino was his own negligence. Hence, the Lanuzo heirs could not
recover damages. 32

WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES and SETS
ASIDE the decision promulgated on August 11, 2003 by the Court of Appeals; REINSTATES the
decision rendered on October 8, 2001 by the Regional Trial Court, Branch 32, in Pili, Camarines Sur
dismissing the complaint; and MAKES no pronouncements on costs of suit.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-1374 December 3, 1903

THE UNITED STATES, complainant-appellant,

vs.
CRISTINO REYES, defendant-appellee.

Office of the Solicitor-General Araneta for appellant.

Basilio R. Mapa for appellee.

JOHNSON, J.:

The defendant was charged in the Court of First Instance of the city of Manila with the crime of
larceny, as follows:

Before me, the undersigned officer of the court, personally appeared the
complainant, who, under oath, made a statement to which he affixed his signature,
that he had reasonable grounds to believe that Cristino Reyes, in the southern
district of the Pasig River, on or about the 29th day of September, 1902, in the city of
Manila, illegally took, stole, and carried away with him a check for $500, money of
the United States, and specie in the sum of $110, money of the United States,
amounting altogether to $610, money of the United States, the said check and specie
being the property of Bud Wing, without the consent of the latter and with the
intention of illegally depriving Bud Wing, its owner, of the value of the said property
and of appropriating the same for his own and exclusive use.
The defendant was brought to trial on the 28th day of October, 1902, and was dismissed for
insufficient proof on the same day. The presecuting attorney appealed to this court. Because the
defendant has been unable to give bail, he has been imprisoned since that date. lawphil.net

The defendant was a servant of the one S. B. Kurtz, who was secretary of the Young Men's
Christian Association of Manila, and had been such servant for several months prior to the time of
the alleged commision of the said offense. The association mentioned occupied a house at No. 205
Calle Real, Intramuros, Manila. The defendant was a servant in this house, which was a sort of
lodging house, containing several rooms, with numerous beds.

On the night of the 28th of September, 19O2, one Bud Wing went to this house at about 11 o'clock
at nigth for purpose of sleeping there. On retiring for the night, he place the money and check
referred to his bed. His brother, a small boy of 9 years, more or less, slept in the same night. The
next morning, at about 8 o'clock, he and his small brother arose and left the house. On the same
morning, at about 9 o'clock he discovered that he had forgotten his money and check. He then
returned to the house and examined the bed in which he placed the property, but it could not then be
found. The loss was reported to the secretary, Mr. Kurtz. There were two other servants in the said
house. All of the servants were called together and closely questioned concerning what they knew of
the alleged loss. They each denied having any knowledge or information concerning the same. The
servants were ordered to search the rooms and to see if the money and check could be found. Later
in the day the property in question was found on the floor in the room of the servants, where also the
dirty linen was kept from time to time.

The room in which the said Bud Wing slept on the night in question was connected with a hall and
another large room by means of doors. Other persons occupied the large room.

On the morning when the property in question was alleged to have been taken, all the servants were
in and about the house. It was the duty of the accused to clean this room in which Bud Wing slept.
The evidence is not clear whether or not the linen on the bed in this room have been changed on the
morning of the 29th of September. Neither does the evidence show that the said property was hid
away in the room where the dirty linen was kept. It is possible that the property in question was
removed at same time with the dirty linen, and in that manner found its way into the room with the
linen.

The learned judge of the court below found that the evidence adduced on the trial was not sufficient
to convince him beyond a reasonable doubt that the defendant was guilty of the crime charged.

There was no direct proof adduced against the accused. The evidence was wholly circumstantial. It
is true that the commission of crime may be proven by circumstantial evidence. In such cases,
however, the circumtances must be just as convincing as when the proof is direct and positive. The
circumtances must be such as lead the mind of the judge irresistibly to but one conclusion, namely,
the guilt of the person charged. So long as the acts of the accused and the circumstances can be
explained upon any othr reasonable hypothesis inconsistent with his guilt, he must be acquitted. If
the judge, after hearing the proof, is not convinced beyond a reasonable doubt that the accused is
guilty, he must dismiss him.

A reasonable doubt in criminal cases must be resolved in favor of the accused. A reasonable doubt
has been variously defined. It is most difficult to define. It has been said that a reasonable doubt was
the doubt of a reasonable man under all the circumstances of the case. This statement is too
general and includes too much. Neither does the rule that the judge (or jury) must be convinced
beyond a reasonable doubt mean that he must be convinced to an absolute certainly. This
construction would preclude a conviction based upon circumstantial evidence. Proof "beyond a
reasonable doubt" does not mean, upon the other hand, proof beyond all "possible or imaginary"
doubt. It means simply such proof, to the satisfaction of the court, keeping in mind the presumption
of innocence, as precludes every reasonable hypothesis except that which it is given to support. It is
not sufficient for the proof to establish a probability, even though strong, that the fact charged is
more likely to be true than the contrary. It must establish the truth of the fact to a reasonable and
moral certainly — a certainty that convinces and satisfies the reason and conscience of those who
are to act upon it.

The judgment of the court below is affirmed.

Arellano, C. J., Torres, Cooper, Willard, Mapa and McDonough, JJ., concur.

FIRST DIVISION

G.R. No. 137599           October 8, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
GILBERT BAULITE and LIBERATO BAULITE, accused-appellants.

PARDO, J.:

Appeal seeking to reverse the decision1 of the Regional Trial Court, Cotabato, at Kidapawan City,
Branch 17 finding accused Gilbert Baulite and Liberato Baulite guilty beyond reasonable doubt of
rape with homicide and sentencing each of them to reclusion perpetua and to indemnify the heirs of
Delia Jacobo Lano in the sum of P50,000.00, with costs.

On December 1, 1993, Eddie Arguelles, a farmer, passed by a river on his way to Old Bunawan,
Tulunan, Cotabato. In the river, he saw two men – Gilbert and Liberato Baulite – washing their
bloodied hands. Eddie continued on his way after seeing them. Upon reaching the road, he hear a
boy shouting that somebody was found dead.

Jonathan Cando, a civilian volunteer, was on horseback crossing a river on his way to Bunawan. He
heard a woman crying "indi" "indi". He checked his left, and approximately six (6) meters away, he
saw a person mounting somebody, as if choking the one mounted. He went to the barangay captain
and related what he heard and saw. The barangay captain, however, dismissed the incident,
speculating that the two were "only sweethearts."
Around 3 to 4 in the afternoon of the same day, a boy found the body of Delia Jacobo Lano, Delia
was a public school teacher at Old Bunawan, Datu Paglas and a resident of Maybula, Tulunan,
Cotabato. An examination of her body revealed that Delia suffered a three-inch-deep punctured
wound between her eyes, a smashed face (left side) and a bruised neck (upper portion). Vaginal
smear test also found her positive for (dead) spermatozoa. However, there were no indications that
Delia's genitalia sustained any laceration. The medical examiner opined that Delia had probably
delivered several children. The examination was conducted approximately five (5) to six (6) hours
after Delia died.

On December 7, 1993, 2nd assistant provincial prosecutor of Cotabato Alfonso B. Dizon, Jr., filed with
the Regional Trial Court, Cotabato, at Kidapawan an information for rape with homicide against
Gilbert Baulite and Liberato Baulite, the two men caught wshing their bloodied hands by the river.
The information reads:

"That on or about December 1, 1993. At Barangay New Bunawan, Municipality of Tulunan,

Province of Cotabato, Philippines, the above named accused, with lewd design, conspiring,
confederating and mutually helping one another, did then and there, willfully, unlawfully and
feloniously with the use of force and intimidation succeeded in having sexual intercourse with
one DELIA JAGOBO LANO against her will, and thereafter said accused, with intent to kill
with personal violence, strangulated the victim with the use of a hand as shoen by finger
nails marking which caused hematoma of the upper portion of the neck and likewise with the
use of a sharp object, inflicted punctured wound (sic) located just above and between the
eyes, three (3) inched deep, directed and posteriorly and superiorly and multiple fracture of
the bone of the left face with hematoma of both eyes, which injuries is (sic) the direct and
proximate cause of death of said DELIA JOCOBO LANO."2

On June 23, 1994, the trial court arraigned the accused. They each pleaded not guilty.3

After due trial, on November 25, 1998, the trial court rendered a decision finding the two accused
guilty of rape with homicide, the decretal portion of which reads as follows:

"Prescinding from the foregoing facts and considerations, the Court finds accused Gilbert
Baulite and Liberato Baulite guilty beyond reasonable doubt, of the crime charged, accused
Liberato Baulite and Gilbert Baulite are hereby sentenced each to suffer the penalty of
Reclusion Perpetua. Consonant with the recent jurisprudence, both accused are hereby
ordered to indemnify the heirs of Delia Jacobo Lano the sum of P50,000.00

"With costs de oficio. 1âwphi1.nêt

IT IS SO ORDERED.4

On December 29, 1998, the accused filed a notice of appeal.5

The issues in the appeal are: (1) Was the guilt of the accused-appellants proved beyond reasonable
doubt? (2) Is circumstantial evidence sufficient to convict the accused-appellants?

The Trial court convicted the accused on the basis of the following circumstantial evidence, namely:

a) A witness saw accused-appellants Gilbert and Liberato Baulite washing their bloodied
hands;
 b) A boy was heard shouting that somebody was found dead;

c) A witness hear a woman shouting "indi" "indi" who was being choked and later the dead
body of Delia Lano was found.6

An autopsy revealed that the body of Delia Lano sustained a three-inch-deep punctured wound
between the eyes and a smashed face.7

Accused-appellants explained that the blood in their hands was that of a chicken that they had
dressed recently.8

Witness Jonathan Cando heard a woman shouting "indi", "indi", then saw a person mounting
somebody as if choking the person mounted. However, in the absence of an eye-witness identifying
the person choking, accused-appellants would not necessarily be incriminated in the crime.
Subsequent examination of the body of Delia Lano revealed that she was choked, as evidenced by
the finger markings or hematoma on the upper portion of her neck. The fact that the upper portion of
the neck was the one severely injured is physical evidence consistent with the scenario that one in a
mounting position applied pressure or choking in the upper portion of the neck of person "mounted."
The prosecution, unfortunately, failed to positively identify the person "mounting and choking" the
victim.9

In light of the prosecution's evidence, we are not convinced that the guilt of the accused has been
proved beyond reasonable doubt. "The rule is clear. The guilt of the accused must be proved beyond
reasonable doubt. The prosecution, on its part, must rely on the strength of its own evidence and
must not simply depend on the weakness of the defense. The slightest possibility of an innocent
man being convicted for an offense he has never committed, let alone when no less than the capital
punishment is imposed, would be far more dreadful than letting a guilty person go unpunished for a
crime he may have perpetrated."10 "On the whole then, the scanty evidence for the prosecution casts
serious doubts as to the guilt of the accused. It does not pass the test of moral certainty and is
insufficient to rebut the presumption of innocence which the Bill of Rights guarantees the accused. It
is apropos to repeat the doctrine that an accusation is not, according to the fundamental law,
synonymous with guilt; the prosecution must overthrow the presumption of innocence with proof of
guilt beyond reasonable doubt."11

Where the evidence is purely circumstantial, there must be an even greater need to apply the rule
that the prosecution depends not on the weakness of the defense but on the strength of its own
evidence. Conviction must rest on nothing less than a moral certainty of the guilty of the accused.
"For circumstantial evidence to convict, the Rules of Court require that: (1) there is more than one
circumstance: (2) the facts from which the inferences are derived are proven; and (3) the
combination of all the circumstances is such as produce a conviction beyond reasonable doubt. On
the latter, decided cases expound that the circumstantial evidence presented and proved must
constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to accused,
to the exclusion of all others, as the guilty person."12

The Solicitor General recommends the acquittal of the accused.13 We agree.

We find the circumstantial evidence adduced not sufficient to support a finding that both accused-
appellants were guilty beyond reasonable doubt of rape with homicide. To begin with, witness
Jonathan Cando was no able to identify either the woman victim or the person choking the victim.14

We cannot conclude with certainly that the blood in the hands of the accused-appellant was the
blood of the victim, and that the person choking her was one of the accused-appellants.
Speculations and probabilities cannot substitute for proof required to establish the guilt of the
accused beyond reasonable doubt.15 In a criminal case, every circumstance favoring the innocence
of the accused must be duly taken into account.16

In our criminal justice, the overriding consideration is not whether the court doubts the innocence of
the accused but whether it entertains a reasonable doubt as to his guilt.17 Where there is reasonable
doubt as to the guilt of the accused, he must be acquitted even though his innocence may be
doubted since the constitutional right to be presumed innocent until proven guilty can only be
overthrown by proof beyond reasonable doubt.18

In conclusion, because of reasonable doubt as to the guilt of the accused-appellant, they must be
acquitted. "Every accused is presumed innocent until the contrary is proved; that presumption is
solemnly guaranteed by the Bill of Rights. The contrary requires proof beyond reasonable doubt, or
that degree of proof that produces conviction in an unprejudiced mind. Short of this, it is not only the
right of the accused to be freed; it is even the constitutional duty of the court to acquit them.19

WHEREFORE, the appealed decision is REVERSED. Accused-appellants Gilbert Baulite and

Liberato Baulite are hereby ACQUITTED of the crime charged in Criminal Case 2834 of the
Regional Trial Court, Cotabato, Kidapawan, on reasonable doubt. 1âwphi1.nêt

Costs de oficio.

The Director, Bureau of Corrections is ordered to release the accused-appellants immediately unless
held for another cause. He shall inform the Court of such release or the reason for non-release
within ten (10) days from notice.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 185717               June 8, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
GARRY DE LA CRUZ y DELA CRUZ, Accused-Appellant.

DECISION

VELASCO, JR., J.:

The Case
This is an appeal from the Decision1 dated June 30, 2008 of the Court of Appeals (CA) in CA-G.R.
CR-H.C. No. 02727, which affirmed in toto the February 8, 2007 Decision2 in Criminal Case No. Q-
03-117814 of the Regional Trial Court (RTC), Branch 82 in Quezon City. The RTC found accused
Garry de la Cruz y dela Cruz (Garry) guilty beyond reasonable doubt of violating Section 5, Article II
of Republic Act No. (RA) 9165 or the Comprehensive Dangerous Drugs Act of 2002.

The Facts

In an Information3 filed on June 3, 2003, accused was indicted for the crime allegedly committed as
follows:

That on or about the 29th of May, 2003, in Quezon City, Philippines, the said accused, not being
authorized by law to sell, dispense, deliver, transport or distribute any dangerous drug, did, then and
there, willfully and unlawfully sell, dispense, deliver, transport, distribute or act as broker in the said
transaction, zero point zero two (0.02) gram of methylamphetamine hydrochloride, a dangerous
drug.

CONTRARY TO LAW.

Upon arraignment on July 28, 2003, accused pleaded "not guilty" to the above charge.4 Trial5 on the
merits ensued.

Version of the Prosecution

After conducting surveillance for a week, the Station Drug Enforcement Unit in La Loma, Quezon
City planned a buy-bust operation against a certain Garry who was in the Barangay Watch List. The
operation was coordinated with the Philippine Drug Enforcement Agency (PDEA).

On May 29, 2003, at around 9:00 a.m., the station’s Officer-in-Charge (OIC), Police Inspector Oliver
Villanueva (P/Insp. Villanueva), gave a briefing on the buy-bust operation. Police Officer 2 Edcel
Ibasco (PO2 Ibasco) was designated as poseur-buyer, while PO1 Roderick Valencia (PO1
Valencia), PO1 Alfredo Mabutol, and PO2 Ronald Pascual were assigned as back-up operatives.
Their informant attended the briefing.

Thereafter, the buy-bust team proceeded to Biak-na-Bato corner Mauban Streets, Quezon City and
arrived there at around 9:30 a.m. The informant introduced PO2 Ibasco to the accused, who was
standing in front of a shanty, as wanting to buy shabu. The accused asked for PhP 100, and when
PO2 Ibasco paid the amount, the former handed over to him a white crystalline substance in a
plastic sachet. Upon PO2 Ibasco’s prearranged signal, the other members of the buy-bust team
approached them. The accused, sensing what was happening, ran towards the shanty but was
caught by PO1 Valencia at the alley. PO1 Valencia introduced himself as a police officer and frisked
the accused, in the process recovering the buy-bust money.

The buy-bust team then brought the accused to the station. The accused was turned over to the
desk officer on duty, along with the substance in the sachet bought from him and the recovered buy-
bust money. After inquest, the Information was filed on June 3, 2003. Accused was then committed
to the Quezon City Jail.6

Consequently, the substance inside the sachet believed to be shabu was sent to and examined by a
Philippine National Police forensic chemist, Engr. Leonard Jabonillo (Engr. Jabonillo). The laboratory
result confirmed that the substance was positive for methylamphetamine hydrochloride or shabu.
Only PO2 Ibasco and PO1 Valencia testified for the prosecution during the trial. The testimony of
Engr. Jabonillo was dispensed with upon stipulation by the defense.

Version of the Defense

The accused denied selling shabu to PO2 Ibasco. In short, the accused used the defense of denial
and alleged a frame-up by the arresting officers.

The accused testified that he was arrested on May 29, 2003 at around 9:00 a.m. inside his house at
Barangay Manresa, Quezon City while he was alone drinking coffee. While two neighbors were
talking in front of his house, a Tamaraw FX arrived. Five armed men alighted from it, whereupon his
neighbors ran away and were chased by them. The armed men then returned, saying, "Nakatakas,
nakatakbo." (They had escaped and ran.) One of the armed men saw the accused and entered his
house. It was PO2 Ibasco, who frisked him and got PhP 60 from his pocket. PO1 Valencia also
entered his house and came out with a shoe box, then said, "Sige, isakay n’yo na." (Take him in the
car.) He asked the armed men what his violation was but was told to merely explain at the precinct.

In the police precinct, he was investigated and subsequently detained. They showed him a plastic
sachet which they allegedly recovered from him. Then a man approached him and demanded PhP
30,000 for his release, but he said he did not have the money. Thereafter, he was presented for
inquest.

A witness, Rodolfo Buencamino (Buencamino), narrated that in the morning of May 29, 2003, he
called the police precinct to have a certain "Taba," an alleged drug pusher in their area, arrested.
PO2 Ibasco and other police officers responded immediately. When the police officers arrived,
Buencamino pointed to "Taba," who, however, was able to evade arrest. Thereafter, he was
surprised to see the accused inside the vehicle of the policemen. But he did not know why and
where the accused was arrested since he did not witness the actual arrest.

Another witness, Marbelita Collado Lepiten (Lepiten), testified that she was at the terrace of her
house on 135 Manba St., Manresa, San Francisco del Monte, Quezon City, when she noticed the
accused talking to a certain "Taba," a resident of the area. When a maroon Tamaraw FX stopped in
front of the house of accused, "Taba" ran away and was pursued by two men who alighted from the
vehicle. The two men returned without "Taba," who evidently escaped, and entered the house of the
accused. She did not know what happened inside the house but she eventually saw the men push
the accused outside into their vehicle.

The Ruling of the RTC

On February 8, 2007, the RTC rendered its Decision finding the accused guilty beyond reasonable
doubt of the offense charged. The dispositive portion reads:

WHEREFORE, judgment is hereby rendered finding accused GARRY DELA CRUZ guilty beyond
reasonable doubt of a violation of Section 5, Article II of R.A. No. 9165, and hereby sentencing him
to suffer the penalty of LIFE IMPRISONMENT and to pay a fine in the amount of FIVE HUNDRED
THOUSAND (P500,000.00) PESOS.

SO ORDERED.

In convicting the accused, the RTC relied on and gave credence to the testimony of prosecution
witnesses PO2 Ibasco and PO1 Valencia. Citing People v. Jubail,7 which enumerated the elements
required to be established by the prosecution for the illegal sale of prohibited drugs, the trial court
found that the prosecution had established the elements of the crime.

The RTC pointed out that Buencamino may, indeed, have called the police to arrest a certain
"Taba," an alleged pusher in the area, but he was not present when the accused was arrested. The
trial court likewise did not accord evidentiary weight to the testimony of Lepiten, who testified that
she saw the accused talking to "Taba" and that when the police officers entered the house of the
accused, she was unaware of what transpired inside. Thus, the RTC concluded that her testimony
did not provide clear and convincing justification to cast doubt on the candid and straightforward
testimonies of the police officers.

Applying the presumption of the performance of official function, the lack of showing any ill motive on
the part of the police officers to testify against the accused, and the principle that the bare denial of
an accused is inherently weak, the RTC convicted the accused.

Consequently, with his conviction, the accused started to serve his sentence8 and was subsequently
committed to the New Bilibid Prison in Muntinlupa City.

Aggrieved, accused appealed9 his conviction before the CA.

The Ruling of the CA

On June 30, 2008, the appellate court rendered the appealed decision, wholly affirming the findings
of the RTC and the conviction of appellant. The fallo reads:

WHEREFORE, premises considered, herein appeal is hereby DENIED and the assailed
Decision supra is hereby AFFIRMED in toto.

SO ORDERED.

The CA upheld the findings of the trial court that the essential elements required for the conviction of
an accused for violation of Sec. 5, Art. II of RA 9165 were present in the instant case. The appellate
court brushed aside the irregularities raised by accused-appellant by putting premium credence on
the testimonies of the arresting police officers, who positively identified accused-appellant in open
court. One with the trial court, the CA found no improper motive on the part of the police officers
who, it said, were regularly performing their official duties. Besides, relying on People v.
Barlaan,10 the CA held that the irregularities raised that there was no coordination with the PDEA and
that no inventory was made and no photograph taken of the seized drug, if true, did not invalidate
the legitimate buy-bust operation conducted. Moreover, the CA found that the corpus delicti, i.e., the
confiscated shabu and the PhP 100 bill, were presented as evidence of the commission of the
offense.

The CA also ruled that accused-appellant’s mere denial, as corroborated by Buencamino and
Lepiten, deserved scant consideration vis-à-vis the positive identification by the arresting officers
who arrested him in flagrante delicto. Anent the questioned chain of custody, the CA found it
unbroken and duly proven by the prosecution.

The Issues

Hence, We have this appeal.

Only accused-appellant, however, filed his Manifestation (In Lieu of Supplemental Brief),11 while the
Office of the Solicitor General (OSG), representing the People of the Philippines, submitted neither a
Manifestation nor a Motion. Consequently, on July 27, 2009, the Court dispensed with the OSG’s
submission of a supplemental brief.12 Since no new issues are raised nor supervening events
transpired, We scrutinize the Brief for the Accused-Appellant13 and the Brief for the Plaintiff-
Appellee,14 filed in CA-G.R. CR-H.C. No. 02727, in resolving the instant appeal.

Thus, accused-appellant raises the same assignment of errors, in that:

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY

BEYOND REASONABLE DOUBT OF VIOLATION OF SECTION 5, ARTICLE II, REPUBLIC ACT
NO. 9165.

II

THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND CREDENCE TO

ACCUSED-APPELLANT’S DEFENSE OF DENIAL.15

The Court’s Ruling

The appeal is meritorious.

Accused-appellant argues that, first, the prosecution has not proved his commission of the crime
charged for the following irregularities: (1) the arresting officers did not coordinate with the PDEA, as
required under Sec. 86 of RA 9165; (2) no physical inventory was conducted and photograph taken
of the alleged seized drug in the presence of public officials, as required by Sec. 21 of RA 9165; and
(3) the chain of custody was not duly proved by the prosecution. And second, his denial is worthy of
credence upon corroboration by the credible witnesses presented by the defense.

After a careful and thorough review of the records, We are convinced that accused-appellant should
be acquitted, for the prosecution has not proved beyond reasonable doubt his commission of
violation of Sec. 5, Art. II of RA 9165.

A buy-bust operation is "a form of entrapment, in which the violator is caught in flagrante delicto and
the police officers conducting the operation are not only authorized but duty-bound to apprehend the
violator and to search him for anything that may have been part of or used in the commission of the
crime."16 However, where there really was no buy-bust operation conducted, it cannot be denied that
the elements for illegal sale of prohibited drugs cannot be duly proved despite the presumption of
regularity in the performance of official duty and the seeming straightforward testimony in court by
the arresting police officers. After all, the indictment for illegal sale of prohibited drugs will not have a
leg to stand on.

This is the situation in the instant case.

The courts a quo uniformly based their findings and affirmance of accused-appellant’s guilt on: (1)
the straightforward testimony of the arresting police officers; (2) their positive identification of
accused-appellant; (3) no ill motive was shown for their testimony against accused-appellant; (4) the
self-serving defense of denial by accused-appellant; (5) the seeming irregularities in the conduct of
the buy-bust operation and the arrest of accused-appellant not invalidating the operation; and (6) the
testimonies of Buencamino and Lepiten not showing that the buy-bust operation was not conducted.

Although the trial court’s findings of fact are entitled to great weight and will not be disturbed on
appeal, this rule does not apply where facts of weight and substance have been overlooked,
misapprehended, or misapplied in a case under appeal,17 as here.

For the prosecution of illegal sale of drugs to prosper, the following elements must be proved: (1) the
identity of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing
sold and its payment. What is material is the proof that the transaction actually took place, coupled
with the presentation before the court of the corpus delicti.18

In People v. Doria,19 the Court laid down the "objective test" in determining the credibility of
prosecution witnesses regarding the conduct of buy-bust operations. It is the duty of the prosecution
to present a complete picture detailing the buy-bust operation—"from the initial contact between the
poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration
until the consummation of the sale by the delivery of the illegal drug subject of sale."20 We said that
"[t]he manner by which the initial contact was made, x x x the offer to purchase the drug, the
payment of the ‘buy-bust money’, and the delivery of the illegal drug x x x must be the subject of
strict scrutiny by the courts to insure that law-abiding citizens are not unlawfully induced to commit
an offense."21

No Surveillance Conducted

The testimony of PO2 Ibasco on direct examination did not mention an alleged surveillance
conducted by PO2 Ibasco and PO1 Valencia prior to the alleged buy-bust operation, the
corresponding intelligence report, and the written communiqué with the PDEA. The defense in cross-
examination put to task both PO2 Ibasco and PO1 Valencia concerning these matters, as attested to
in the Joint Affidavit of Apprehension22 executed by the two police officers on May 30, 2003. PO2
Ibasco testified that his unit, specifically PO1 Valencia and himself, conducted surveillance on
accused-appellant for a week prior to the buy-bust operation on May 29, 2003 which, according to
him, turned out positive, i.e., accused-appellant was, indeed, selling shabu.

PO2 Ibasco on cross-examination testified, thus:

ATTY. LOYOLA:

Being an operative, you are of course, trained in intelligence work?

PO2 IBASCO:

Yes, sir.

Q: You said you conducted surveillance but you cannot show any proof that there is an intelligence
report, you have no proof?

A: Yes, sir. There is, we were dispatched.

Q: Where is your proof now?

A: It’s in our office.

Q: Your dispatch order for the surveillance do you have any?

A: I don’t have it now sir but it’s in the office.

Q: You said that you conducted surveillance for one week, did I hear you right?

A: Yes, sir.

xxxx

Q: So, you are saying you did not actually see him selling drugs at that time during the surveillance?

A: We saw him, sir.

xxxx

Q: None. You did not even coordinate this operation with the PDEA?

A: We coordinated it, sir.

Q: What is your proof that you indeed coordinated?

A: It’s in the office, sir.

ATTY. LOYOLA:

May I make a reservation for continuance of the cross-examination considering that there are
documents that the witness has to present.

COURT:

What documents?

ATTY. LOYOLA:

The proof your Honor that there was indeed a coordination and the intelligence report.

COURT:

Will you be able to produce those documents?

A: Yes, sir. "Titingnan ko po."

PROSECUTOR ANTERO:

Titingnan?

COURT:
You are not sure? You don’t have any copy of those documents?

A: You Honor, what we have in the office is the dispatch.23

PO1 Valencia, likewise, on cross-examination testified:

ATTY. LOYOLA:

Mr. Witness, tell me during the orientation, you will agree with me that there was no coordination
made to the PDEA regarding this intended buy bust operation?

PO1 VALENCIA:

We have coordinated at the PDEA.

Q: You say that but you have no proof to show us that there was coordination?

A: We have, sir.

Q: What is your proof?

A: We have files in our office for coordination.

Q: Are you sure about that?

A: Yes, sir.

Q: Now, Mr. Witness, based on the information, you already planned to conduct a buy bust operation
against the accused?

A: Yes, sir.

Q: But you will agree with me that there was no surveillance against the accused?

A: We have conducted a surveillance one week before the operation and we conducted surveillance
"Pinakawalan namin ang informant."

Q: What do you mean "pinakawalan ang informant"?

A: So that we have a spy inside to verify whether Garry was really selling shabu.

xxxx

Q: In fact you don’t have any information report?

A: We have, sir. It’s in the office. It’s with Insp. Villanueva.

Q: And because you claim that you have submitted an information and report, of course, you should
have come up with an intelligence report.
A: Yes, sir. It’s also in the office of Insp. Villanueva.

xxxx

Q: And the alleged recovered item, the plastic sachet which contained white crystalline substance
was brought by whom to the PNP Crime Laboratory?

A: I cannot remember who brought it sir because it was a long time ago.24

These documents––specifically the dispatch order, the intelligence report of the alleged surveillance,
and the written communiqué from the PDEA for the conduct of the surveillance and buy-bust
operation––were not, however, presented in court. Evidently, these documents are non-existent,
tending to show that there really was no surveillance and, consequently, no intelligence report about
the surveillance or the averred written communiqué from PDEA attesting to coordination with said
agency. Worse, the prosecution never bothered to explain why it could not present these
documents. Thus, there is no basis to say that accused-appellant allegedly sold shabu a week
before he was arrested.

Even putting this lapse aside, the other irregularities raised by accused-appellant in the backdrop of
the uncontroverted testimonies of Buencamino and Lepiten tend to show that there was really no
buy-bust operation conducted resulting in the valid arrest of accused-appellant.

Generally, non-compliance with Secs. 21 and 86 of RA 9165 does not mean that no buy-bust
operation against appellant ever took place.25 The prosecution’s failure to submit in evidence the
required physical inventory and photograph of the evidence confiscated pursuant to Sec. 21, Art. II
of RA 9165 will not discharge the accused from the crime. Non-compliance with said section is not
fatal and will not render an accused’s arrest illegal or the items seized/confiscated from him
inadmissible.26

No Buy-Bust Operation

But where there are other pieces of evidence putting in doubt the conduct of the buy-bust operation,
these irregularities take on more significance which are, well nigh, fatal to the prosecution.

Putting in doubt the conduct of the buy-bust operation are the uncontroverted testimonies of
Buencamino and Lepiten, which gave credence to accused-appellant’s denial and frame-up theory.
The Court is not unaware that, in some instances, law enforcers resort to the practice of planting
evidence to extract information from or even to harass civilians.27 This Court has been issuing
cautionary warnings to trial courts to exercise extra vigilance in trying drug cases, lest an innocent
person is made to suffer the unusually severe penalties for drug offenses.28

The defense of frame-up in drug cases requires strong and convincing evidence because of the
presumption that the law enforcement agencies acted in the regular performance of their official
duties.29 Nonetheless, such a defense may be given credence when there is sufficient evidence or
proof making it to be very plausible or true. We are of the view that accused-appellant’s defenses of
denial and frame-up are credible given the circumstances of the case. Indeed, jurisprudence has
established that the defense of denial assumes significance only when the prosecution’s evidence is
such that it does not prove guilt beyond reasonable doubt,30 as in the instant case. At the very least,
there is reasonable doubt that there was a buy-bust operation conducted and that accused-appellant
sold the seized shabu. After all, a criminal conviction rests on the strength of the evidence of the
prosecution and not on the weakness of the defense.31
Notably, Buencamino voluntarily testified to the effect that he called the police asking them to
apprehend a certain "Taba," a notorious drug pusher in their area. PO2 Ibasco and company
responded to his call and Buencamino helped identify and direct the policemen but "Taba"
unfortunately escaped. Thus, Buencamino testified:

ATTY. BARTOLOME:

Mr. Witness, who asked you to testify today?

BUENCAMINO:

I volunteered myself to testify.

xxxx

Q: Can you tell us how, when and where the accused was arrested?

A: I was the one who called-up the precinct to arrest a certain Taba and not Garry. Taba was the
target of the operation.

Q: When was that?

A: May 29, 2003.

Q: Why did you call the police station?

A: Ibasco talked to me to arrest Taba.

Q: Why are they going to arrest Taba?

A: Because he is a pusher in the area.

Q: Why do you know Ibasco?

A: Because he was a previous resident of Barangay Manresa.

Q: You said you called police officer [sic] what was the topic. Mr. Witness?

A: That Taba is already there and he already showed up and they immediately responded to arrest
Taba.

Q: So, Ibasco immediately responded to your call?

A: Yes, sir.

Q: When they arrived in your place what happened else, if any?

A: I pointed to Taba so they could arrest him.

Q: Where they able to arrest Taba?

A: No, sir. He was able to escape.

Q: Whey they were not able to arrest alias Taba what happened, next Mr. Witness? What happened
to Garry Dela Cruz?

A: I was surprised because I saw Garry Dela Cruz already inside the vehicle and I don’t know why
Garry was inside the vehicle.32

Buencamino’s assertion of knowing PO2 Ibasco was likewise not rebutted. Moreover, the
presentation of the police logbook on calls received in the morning of May 29, 2003 would indeed
show if Buencamino or someone else made a call to the precinct about a certain "Taba," but then,
again, the prosecution did not bother to rebut the testimony of Buencamino. Verily, this time the
presumption "that evidence willfully suppressed would be adverse if produced"33 applies. In fact, the
prosecution did not even assail Buencamino’s credibility as a witness but merely made the point in
the cross-examination that he had no actual knowledge of the arrest of accused-appellant. Thus,
Buencamino was cross-examined:

PROSECUTOR ANTERO:

You were not with Garry at the time he was arrested?

BUENCAMINO:

No, sir.

Q: You don’t know where he was arrested at that time?

A: I don’t know where Garry was, sir.

PROSECUTOR ANTERO:

That will be all, your Honor.34

More telling is the testimony of Lepiten which, uncontroverted, shows that there was no buy-bust
operation. Her testimony corroborates the testimony of Buencamino that police enforcers indeed
responded to Buencamino’s phone call but were not able to apprehend "Taba." This destroys the
buy-bust operation angle testified to by PO2 Ibasco and PO1 Valencia. Since the buy-bust operation
allegedly happened not inside the house of accused-appellant but in an open area in front of a
shanty, such cannot be sustained in light of what Lepiten witnessed: The policemen chased but were
not able to arrest "Taba"; thereafter, the policemen went inside the house of accused-appellant,
emerging later with him who was led to the vehicle of the policemen. Thus, Lepiten testified:

ATTY. BARTOLOME:

Mrs. Witness, where were you on May 29, 2003, if you could still remember?

COURT:

What time?
ATTY. BARTOLOME:

At around 9:00 in the morning.

LEPITEN:

I was at the terrace of the house we are renting while sipping coffee.

Q: Where is that house located?

A: No. 135 Mauban Street, Barangay Manresa, Quezon City.

COURT:

Where is this, Novaliches?

A: No, your Honor, near San Francisco Del Monte.

xxxx

ATTY. BARTOLOME:

While drinking coffee, what transpired next, Mrs. Witness or was there any unusual thing that
happened?

A: Yes, sir. While I was sitting on the terrace in front of the house we are renting is the house of
Garry. Garry was talking to a certain Taba whom I know.

xxxx

Q: While you saw them talking to each other, what happened next?

A: Suddenly a maroon FX stopped.

Q: Where?

A: In front of the house of Garry.

Q: When this maroon FX stopped, what happened next, if any?

A: Taba ran, sir.

Q: What happened next, if any?

A: Two (2) men in blue pants and white shirt alighted from the maroon FX and ran after Taba.

Q: Were they able to arrest Taba, Ms. Witness?

A: No, sir. They were not able to catch him.

Q: When they failed to arrest Taba, what did these two (2) men do, if any?

A: They returned in front of the house and Garry and I saw them entered the house of Garry.

xxxx

Q: What did they do, if any?

A: I don’t know what they did inside because I could not see them, sir. Then I saw them went down
and pushed Garry towards the FX.

xxxx

Q: After that what else happened, if any?

A: I just saw that they boarded Garry inside the FX.

xxxx

COURT:

Any cross?

PROSECUTOR ANTERO:

No cross, your Honor.35

Thus, taking into consideration the defense of denial by accused-appellant, in light of the foregoing
testimonies of Buencamino and Lepiten, the Court cannot conclude that there was a buy-bust
operation conducted by the arresting police officers as they attested to and testified on. The
prosecution’s story is like a sieve full of holes.

Non-Compliance with the Rule on Chain of Custody

Moreover, the prosecution failed to sufficiently prove the requisite chain of custody of the seized
specimen. "Chain of custody" means the duly recorded authorized movements and custody of
seized drugs or controlled chemicals from the time of seizure/confiscation to receipt in the forensic
laboratory to safekeeping to presentation in court for destruction.36 The CA found an unbroken chain
of custody of the purportedly confiscated shabu specimen. However, the records belie such
conclusion.

The testimonies of PO2 Ibasco and PO1 Valencia, as well as their Joint Affidavit of Apprehension,
were bereft of any assertion on how the seized shabu in a heat-sealed sachet was duly passed from
PO2 Ibasco, the chosen poseur-buyer, who allegedly received it from accused-appellant, to forensic
chemist Engr. Jabonillo, who conducted the forensic examination. While the testimony of Engr.
Jabonillo was dispensed with upon stipulation by the defense, as duly embodied in the RCT Order
dated March 16, 2004, it is likewise bereft of any assertion substantially proving the custodial
safeguards on the identity and integrity of the shabu allegedly received from accused-appellant. The
stipulation merely asserts:
x x x that he is a Forensic Chemist of the Philippine National Police; that his office received a
request for laboratory examination marked as Exhibit "A"; that together with said request is a brown
envelope marked as Exhibit "B"; which contained a plastic sachet marked as Exhibit "B-1"; that he
conducted a requested laboratory examination and, in connection therewith, he submitted a
Chemistry Report marked as Exhibit "C". The findings thereon showing the specimen positive for
Methylamphetamine Hydrochloride was marked as Exhibit "C-1", and the signature of the said police
officer was marked as Exhibit "C-2". He likewise issued a Certification marked as Exhibits "D" and
"D-1", and thereafter, turned over the specimen to the evidence custodian and retrieved the same for
[sic] purposed proceeding scheduled today.37

While both PO2 Ibasco and PO1 Valencia testified on the identity of the plastic sachet duly marked
with the initials "EIGC," there was no sufficient proof of compliance with the chain of custody. The
records merely show that, after the arrest of accused-appellant, the specimen was allegedly turned
over to the desk officer on duty, whose identity was not revealed. Then it was the station’s OIC,
P/Insp. Villanueva, who requested the forensic examination of the specimen. In gist, from the alleged
receipt of the plastic sachet containing 0.02 gram of shabu by PO2 Ibasco from the alleged buy-bust
operation, the chain of custody of the specimen has not been substantially shown. The Court cannot
make an inference that PO2 Ibasco passed the specimen to an unnamed desk officer on duty until it
made its way to the laboratory examination. There are no details on who kept custody of the
specimen, who brought it to the Crime Laboratory, and who received and kept custody of it until
Engr. Jabonillo conducted the forensic examination. The stipulated facts merely made an allusion
that the specimen custodian of the Crime Laboratory had possession of the specimen and released
it for the proceedings before the trial court.

It is essential that the prohibited drug confiscated or recovered from the suspect is the very same
substance offered in court as exhibit; and that the identity of said drug be established with the same
unwavering exactitude as that requisite to make a finding of guilt.38 This, the prosecution failed to do.
The prosecution must offer the testimony of key witnesses to establish a sufficiently complete chain
of custody.39

As the Court aptly put in People v. Cantalejo:

x x x the failure of the police to comply with the procedure in the custody of the seized drugs raises
doubt as to its origins.

x x x failure to observe the proper procedure also negates the operation of the presumption of
regularity accorded to police officers. As a general rule, the testimony of police officers who
apprehended the accused is usually accorded full faith and credit because of the presumption that
they have performed their duties regularly. However, when the performance of their duties is tainted
with irregularities, such presumption is effectively destroyed.

While the law enforcers enjoy the presumption of regularity in the performance of their duties, this
presumption cannot prevail over the constitutional right of the accused to be presumed innocent and
it cannot by itself constitute proof of guilt beyond reasonable doubt.40
1avvphi1

In sum, considering the multifarious irregularities and non-compliance with the chain of custody, We
cannot but acquit accused-appellant on the ground of reasonable doubt. The law demands that only
proof of guilt beyond reasonable doubt can justify a verdict of guilt.41 In all criminal prosecutions,
without regard to the nature of the defense which the accused may raise, the burden of proof
remains at all times upon the prosecution to establish the guilt of the accused beyond reasonable
doubt.42 As the Court often reiterated, it would be better to set free ten men who might probably be
guilty of the crime charged than to convict one innocent man for a crime he did not commit.43
In fine, We repeat what the Court fittingly held in People v. Ong, a case similarly involving a buy-bust
operation, thus:

The Constitution mandates that an accused shall be presumed innocent until the contrary is proven
beyond reasonable doubt. While appellant’s defense engenders suspicion that he probably
perpetrated the crime charged, it is not sufficient for a conviction that the evidence establishes a
strong suspicion or probability of guilt. It is the burden of the prosecution to overcome the
presumption of innocence by presenting the quantum of evidence required. 1avvphi1

In the case at bar, the basis of acquittal is reasonable doubt, the evidence for the prosecution not
being sufficient to sustain and prove the guilt of appellants with moral certainty. By reasonable doubt
is not meant that which of possibility may arise but it is that doubt engendered by an investigation of
the whole proof and an inability, after such an investigation, to let the mind rest easy upon the
certainty of guilt. An acquittal based on reasonable doubt will prosper even though the appellants’
innocence may be doubted, for a criminal conviction rests on the strength of the evidence of the
prosecution and not on the weakness of the evidence of the defense. Suffice it to say, a slightest
doubt should be resolved in favor of the accused.44

WHEREFORE, the instant appeal is GRANTED. Accused-appellant Garry De La Cruz y Dela Cruz is
hereby ACQUITTED of the crime charged on basis of reasonable doubt. Accordingly, the CA
Decision dated June 30, 2008 in CA-G.R. CR-H.C. No. 02727 is SET ASIDE. The Director of the
Bureau of Corrections is ordered to cause the immediate release of accused-appellant, unless he is
being lawfully held for another cause.

No costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 183161               December 3, 2014

OFFICE OF THE OMBUDSMAN, Petitioner,

vs.
AMALIO A. MALLARI, Respondent.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari under Rule 45 of the 1997 Revised Rules of Civil Procedure
assailing the June 6, 2008 Decision  of the Court of Appeals (CA) in CA-G.R. SP No. 92109, entitled
1

"Amalio A. Mallari v. Office of the Ombudsman," exonerating respondent Amal io A. Mallari (Mallari)
from the administrative offense of grave misconduct in Administrative Case No. OMB-ADM-0-00-
0547.

The Antecedents:

On October 24, 1997, ECOBEL Land, Inc. (ECOBEL), represented by its Chairman, Josephine
Edralin Boright (Boright),applied for a medium term financial facility loan with the Government
Service Insurance System (GSIS)Finance Group for the construction of a 26-storey twin tower
condominium building, ECOBEL Tower,along Taft Avenue in Ermita, Manila. The loan application
was denied for the following reasons: insufficiency of collateral,ECOBEL did not have the needed
track record in property development, and the loan was sought during the Asian financial crisis. 2

Subsequently, ECOBEL applied for a two-year surety bond with GSIS to guarantee payment of a
Ten Million US Dollar (US$10,000,000.00) loan with the Philippine Veterans Bank (PVB)acting as
the obligee. 3

On December 10, 1997, the ECOBEL bond application was approved in principle "subject to
analysis/evaluation of the project and the offered collaterals."  After an evaluation by the GSIS Bond
4

Reinsurance Treaty Underwriting Committee, then chaired by Leticia G. Bernardo (Bernardo),

Manager of the Surety Department, General Insurance Group (GIG),the collateral offered was found
to be a second mortgage. Accordingly, the Committee informed ECOBEL of the rejection of the
collateral offered and requested for additional collateral.
5

Meanwhile, Alex M. Valencerina (Valencerina), then Vice-President for Marketing and Support
Services, GIG, submitted the ECOBEL bond application through his Memorandum, dated January
27, 1998,  for the evaluation and endorsement of the GSIS Investment Committee (INCOM). In the
6

said Memorandum, Valencerina stated that the project was "viable" and the payment guarantee
bond was "fully secured" by reinsurance and real estate collaterals. He also cited that the "funder
has given the principal limited time to avail of the loan. Failure to submit and/or present the payment
guarantee bond would lead to the cancellation of the ‘booking’ of the funds."  The memorandum was
7

coursed through Mallari, then Senior Vice-President of GSIS, GIG, addressed to the President and
General Manager of GSIS. Mallari scribbled his own endorsement by stating "Strongly reco. based
on info and collaterals herein stated."
8

During a meeting on February 17, 1998, Mallari presented to the INCOM a proposal to grant the
guarantee payment bond to ECOBEL. The INCOM, in turn, requested Mallari to look into the viability
of the project of ECOBEL. 9

On March 10, 1998,  the INCOM, through Resolution No. 07-4(8), approved the ECOBEL
10

application.

The following day, March 11, 1998, the GSIS Surety Bond or G (16) GIF Bond No.
029132  (ECOBEL bond) in the amount of Ten Million US Dollars (US$10,000,000.00) was
11

correspondingly issued in favor of ECOBEL with PVB as the obligee. The ECOBEL bond was signed
by Mallari on behalf of the GSIS GIG to guarantee the repayment of the principal and interest on the
loan granted to ECOBEL through the obligee to be used for the construction of its tower building. 12

Boright signed the corresponding Indemnity Agreement  in favor of GSIS on February 11, 1998 or a
13

month prior to the issuance of the ECOBEL bond. A billing statement, dated March 11, 1998,  for14

US$165,000.00 as ECOBEL's bond premium for one yearwas prepared by Mallari.

In the meantime, Mallari was reassigned to the Housing and Real Property Development Group
pursuant to Office Order No. 73-98, dated July 27, 1998.

On November 19, 1998, a Memorandum  was issued by Federico Pascual, President and General
15

Manager of GSIS, ordering the suspension of the processing and issuance of guarantee payment
bonds. 16

Despite the directive, Valencerina and Fernando U. Campana (Campana), then Vice-President of
the London Representative Office (LRO), International Operations, GIG, issued a Certification, dated
January 14, 1999, stating that ECOBEL bond "is genuine, authentic, valid and binding obligation of
GSIS and may be transferred to Bear, Stearns International Ltd., and any of its assignees and Aon
Financial Products, Inc. and any of its assignees within the period commencing at the date above.
GSIS has no counterclaim, defense or right of set-off with respect to the surety bond provided that
DRAWING CONDITIONS have been satisfied." 17

On February 9, 1999, almost a year from the issuance of the ECOBEL bond, Valencerina received
from Boright the premium payment for the bond in the amount of ₱12,731,520.00, in FEBTC check,
post-dated February 26, 1999 as a one-year premium for the period, March 11, 1998 to March 11,
1999.18

Thereafter, Transfer Certificate of Title (TCT) No. 66289 covering the land located in Lipa City,
Batangas, consisting of 205,520 square meters, submitted as collateral, turned out to be"not
genuine" or spurious. The said land, with an appraised value of ₱202,437,200.00, was the major
collateral for the issuance of the ECOBEL bond. The land was titled in the name of Vicente
Yupangco who did not appear to hold any interest in ECOBEL, either as officer or stockholder. 19

Thus, on February 12, 1999, the ECOBEL bond was cancelled by GSIS, through Atty. Saludares of
the Underwriting Department II. On the same day, Valencerina informed Boright that the bond was
invalid and unenforceable and that the FEBTC check, postdated February 26, 1999, was
disregarded by GSIS. 20

On February 19, 1999, despite the notice of the bond cancellation, ECOBEL was granted a loan by
Bear and Stearns International Ltd. (BSIL) in the face amount of US$10,000,000.00 using the
ECOBEL bond. The amount actually drawn and received by ECOBEL was US$9,307,000.00. After
the drawdown, Campaña at the LRO received the surety bond premium check payments, dated April
1, 1999 and April 15, 1999, in the total amount of US$200,629.00. The said checks were remitted to
GSIS Manila on May 10, 1999. 21

On March 7, 2000, a Notice of Default on Payment  was issued against ECOBEL which placed
22

GSIS under threat of a suit. GSIS was furnished with a copy of the said notice and was similarly
advised on March 9, 2000. 23

In a Certification, dated March 20, 2000,  PVB stated that it did not accept the proposal for it to be
24

named "obligee" in the ECOBEL bond, as there was no contract or agreement executed between
ECOBEL and PVB.

Ruling of the Ombudsman

Hence, an investigation was conducted relative to the matter of issuance of the ECOBEL bond. On
this basis, the Fact-Finding and Intelligence Bureau (FFIB) of petitioner Office of the Ombudsman
(Ombusdman) filed criminal and administrative complaints against Mallari, along with Bernardo,
Campaña  and Valencerina, before the Evaluation and Preliminary Investigation Bureau (EPIB)and
25

the Administrative Adjudication Bureau (AAB) for violation of Section 3(e) and (g) of Republic Act
(R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, docketed as OMB-0-
001135, and for violation of Section 22(b), (p), Rule XIV of the Omnibus Rules implementing Book V
of Executive Order No. 292, also known as the Administrative Code of 1987, docketed as OMB-
ADM-0-00-0547. 26

OMB-ADM-0-00-0547 is the subject of the present petition.

In an Order, dated January 10, 2002, the AAB directed Mallari to file his counter-affidavit and
controverting evidence. Mallari complied and submitted his Counter-Affidavit  on January 25, 2002.
27

On May 30, 2002, the case was set for preliminary conference on June 14, 2002. Before the
scheduled date, Mallari filed a Manifestation that he was willing to submit the administrative case for
resolution/decision on the basis of the evidence on record, thereby waiving his right to be present in
the said preliminary conference.

On January 27, 2005, the FFIB rendered a Decision  finding Mallari liable for simple neglect of duty,
28

inefficiency and incompetence in the performance of his official duties whenhe affixed his signature
on the bond despite the deficiencies apparent on its face. The FFIB observed that there being a
finding of positive violation of Section 3(e) of R.A. No. 3019, the corresponding administrative liability
also attached.

Consequently, Mallari was meted out the penalty of one-year suspension without pay inaccordance
with Section 55 of the Uniform Rules on Administrative Cases.

In its Order,  dated June 8, 2005 and signed on June 9, 2005, the Ombudsman approved with
29

modifications the January 27, 2005 Decision. It found that there was more than substantial evidence
on record to hold Mallari administratively liable. Thus, the Ombudsman adjudged him guilty of grave
misconduct and imposed upon him the penalty of dismissal from service.

Mallari filed his motion for reconsideration  of the said decision and order praying for his exoneration
30

of any liability. In its Order,  dated September 1, 2005, the Ombudsman denied his motion for
31

reconsideration.

The Ombudsman did not give credence to his contention that the case had no legal basis in view of
his retirement from GSIS effective February 1, 2004. The Ombudsman said that, contrary to his
assertion, its disciplinary authority extended to him pursuant to Section 21 of Republic Act No.
6770,  considering that when the complaint was filed on June 30, 2000, and when the acts
32

complained of were committed, he was actively in government service. More importantly, according
to the Ombudsman, "the corresponding disabilities and accessories to administrative penalties
provided for in Sections 57 to 58 of the Uniform Rules on Administrative Cases which are:
cancellation of eligibility and perpetual disqualification for reemployment in the government service
still attach." 33

Ruling of the CA

Aggrieved, Mallari filed with the CA a petition for review seeking to annul the aforementioned
January 27, 2005 Decision of the Ombudsman and its June 8, 2005 and September 1, 2005 Orders.
On June 6, 2008, the CA rendered the assailed decision exonerating Mallari of the administrative
offense of grave misconduct. The CA explained that the Ombudsman did not exert efforts to explain
the facts and to show the evidence to support its finding of guilt against Mallari for grave misconduct
justifying his dismissal from the service, which contravened Section 14, Article VIII of the 1987
Constitution.

The CA ruled that there was no substantial evidence to hold Mallari administratively liable for grave
misconduct warranting the imposition of the supreme penalty of dismissal. Mallari affixed his
signature in the proposed bond after the GSIS INCOM approved the ECOBEL bond for the payment
guarantee bond. It added that the proposed bond signed by him did not legally come into existence
because PVB did not agree to be the obligee of the ECOBEL bond. Hence, it could never be the
source of any right or obligation. The CA believed that it was the certifications as to the validity and
authenticity issued by Campaña and Valencerina that gave life to the bond, and enabled ECOBEL to
make the drawdown. It found no iota of evidence linking Mallari to the subsequent use of the bond
as he was transferred from the GIG to the HRPDG on August 1, 1998. As the decision had nothing
to support itself, the cardinal rights of Mallari as laid down in Ang Tibay v. CIR  dictated that the said
34

decision was a nullity. It concluded that the quantum of proof which was substantial evidence
needed in the rendition of an adverse decision in the administrative case against Mallari had not
been met. The CA disposed as follows:

WHEREFORE, premises considered, the Order dated June 9, 2005 of respondent Office of the
Ombudsman finding petitioner herein guilty of Grave Misconduct and ordering his dismissal from the
service is hereby SET ASIDE and in its stead, petitioner is hereby EXONERATED from the
administrative charges against him in OMB-ADM-0-00-0547.

SO ORDERED. 35

Hence, this petition anchored on the following

GROUNDS

THE DECISION OF THE COURT OF APPEALS COMPLETELY EXONERATING RESPONDENT

OF ANY ADMINISTRATIVE LIABILITY IS NOT IN CONFORMITY WITH THE FACTS OF THE
CASE, APPLICABLE LAWS AND JURIPRUDENCE.

II

AS FOUND BY THE OFFICE OF THE OMBUDSMAN, THERE WAS MORE THAN SUBSTANTIAL
EVIDENCE TO HOLD RESPONDENT ADMINISTRATIVELY LIABLE FOR GRAVE MISCONDUCT
WARRANTING HIS DISMISSAL FROM THE GSIS; HENCE, THE RULING OF THE COURT OF
APPEALS TO THE CONTRARY IS A GLARING NULLITY.

III

THE COURT OF APPEALS ERRED IN NOT APPLYING THE WELL SETTLED RULE THAT AS
LONG AS SUBSTANTIAL EVIDENCE SUPPORTS THE OMBUDSMAN’S RULING HIS DECISION
WILL NOT BE OVERTURNED.

IV
THE DECISION OF THE OFFICE OF THE OMBUDSMAN FINDING RESPONDENT
ADMINISTRATIVELY LIABLE FOR GRAVE MISCONDUCT AS WELL AS THE ORDER DENYING
HIS MOTION FOR RECONSIDERATION THEREOF COMPLIED WITH THE CONSTITUTIONAL
REQUIREMENTS THAT THEY SHOULD STATE CLEARLY AND DISTINCTLY THE FACTS AND
THE LAW UPON WHICH THEY ARE BASED, AND THE RULING OF THE COURT OF APPEALS
TO THE CONTRARY IS A PATENT NULLITY. 36

The Ombudsman prays that this Court reverse and set aside the June 6, 2008 Decision of the CA
and affirm the January 27, 2005 Decision of the Ombudsman and its June 9, 2005 and September 1,
2005 Orders, which found Mallari guilty of grave misconduct and ordered the cancellation of his
eligibility, forfeiture or return of his retirement and other benefits except accrued leave credits, and
his perpetual disqualification for reemployment in any branch of the government or its
instrumentalities including government owned and controlled corporations.

In its Manifestation,  dated December 17, 2009, the Ombudsman, through the Office of the Solicitor
37

General (OSG), stated that it was adopting the OSG’s petition for review, dated July 28, 2008, as its
memorandum, considering that all relevant factual and legal issues had been adequately adduced in
the said petition.

In his Memorandum,  dated March 28, 2011, which merely reiterates the arguments that he
38

presented in his Comment,  Mallari argues that the CA was correct in reversing the order of the
39

Ombudsman for want of substantial evidence to support his dismissal from the service. He insists
that there was nothing irregular whenhe signed the guaranty payment bond as it was authorized by
the GSIS INCOM. Besides, he signed the bond with the PVB as obligee, which bond did not
materialize because said bank did not give its consent to the agreement. He contends that by reason
of his transfer to the HRPDG from the GIG,which handled the guaranty payment bonds being issued
by GSIS, effective August 1, 1998,he ceased to have anything to do with the negotiations, perfection
and eventual execution of the bond with the obligee BSIL which was used in the drawdown of the
amount of US$9,307,000.00 from the latter by ECOBEL. According to him, it was the subsequent
acts of Valencerina, Campaña and Boright with the indispensable cooperation of some officers of the
GSIS that gave life to an otherwise extinct bond, and they were responsible for the acts that led to
the drawdown of the said amount. He reiterated the CA ruling that there was no evidence linking him
to the subsequent use of the bond and that there was no showing that he participated inthe
drawdown made by ECOBEL with BSIL.

The sole issue for the Court’s resolution is whether the CA committed a reversible error in
exonerating Mallari from the administrative charges against him in OMB-ADM-0-00-0547.

The Court finds merit in the petition.

At the outset it is well to quote the principles, policies and procedural guidelines involved in a
regularly issued surety bond.

A contract of suretyship is an agreement whereby a party, called the surety, guarantees the
performance by another party, called the principal or obligor, of an obligation or undertaking in favor
of another party, called the obligee. Although the contract of a surety is secondary only to a valid
principal obligation, the surety becomes liable for the debt or duty of another although it possesses
no direct or personal interestover the obligations nor does it receive any benefit therefrom.  The
40

contract of suretyship is further elucidated, in this wise:

The surety's obligation is not an original and direct one for the performance of his own act, but
merely accessory or collateral to the obligation contracted by the principal. Nevertheless, although
the contract of a surety is in essence secondary only to a valid principal obligation, his liability to the
creditor or promisee of the principal is said to be direct, primary and absolute; in other words, he is
directly and equally bound with the principal.

xxxx

Thus, suretyship arises upon the solidary binding of a person deemed the surety with the principal
debtor for the purpose of fulfilling an obligation. A surety is considered in law as being the same
party as the debtor in relation to whatever is adjudged touching the obligation of the latter, and their
liabilities are interwoven as to be inseparable. x x x.41

Internally, GSIS is guided by its established guidelines, the Policy and Procedural Guidelines (PPG)
No. 16-76, dated November 26, 1976, which deals with Bond Underwriting Guidelines for the
General Insurance Fund. This was amended and supplemented by PPG No. 64-80-A, dated January
25, 1980, the pertinent provisions of which read:

Only the President and General Manager (PGM) has the authority to sign the following:

3.2.1 Bonds in all other instances where the authority has not been delegated to any other official, in
which case, all shall be subject to Board approval.

3.2.2 All borderline cases, such as when the underwriting requirements of the Fund have been
substantially but not fully complied with.

xxxx

III. Procedural Guidelines

xxxx

2. Only standard bond forms authorized for use in the Philippines shall be used in the issuance of
any and all kinds of bonds by the General Insurance Fund, except when the Obligee requires a form
of his own. Underwriting and Issuance of Bonds (Performance, Surety, etc.)

General Procedure

II. Underwriting

1. Examine the character, capacity and capital or financial resources of applicant.

2. Evaluate the risk involved.

3. Classify the bond, whether it is high risk and low risk.

4. Determine the premium rates.

5. Compute the premium rates.

6. Register the Bond in the Bond Register Book.

 7. Effect re-insurance whenever applicable and appropriate according to retention set by the
PPG on Bonds.

8. Prepare bond documents and assign acknowledgment, etc.

9. Review bond documents.

10. Sign bond documents per schedule.

[PGG No. 16-76, November 26, 1976]

Policy/Procedure

I. The overall bond underwriting guidelines:

A. The overall bond underwriting policy of the Fund shall be one of conservation.

B. The overall bond underwriting objective of the Fund is to avoid any and all losses, since a surety
bond is underwritten on the assumption of no losses.

C. While the Fund should aim to produce more, its production efforts should be in consonance with
the safety requirements of bond underwriting, considering that one big loss would be sufficient to
wipe out all premiums earned for a number of years.

xxxx

III. The Indemnity Agreement

No bond shall be issued without the bond principal signing an Indemnity Agreement to counter-
secure whatever loss or damage the Fund may suffer as a consequence of having issued the bond.

xxxx

V. The Three C’s of Bond Underwriting

xxxx

With the information obtained from the documents submitted by the applicants as basis, it shall be
determined whether the applicant is qualified for the projected undertaking or obligation by a careful
examination of his character, capacity and capital.

Character – that he has the moral character that would indicate that he will be faithful to the
obligation or trust imposed on him. If a corporation, tht it is a well-established and respectable firm.

Capacity- that the applicant has the skill and know-how essential to the performance of the
undertaking.

Capital-that he must have the financial resources to indemnify the surety and to warrant approval of
his application as a suitable and desirable risk. This could be established from his financial
statements.
VI. Analysis of financial statements for evaluation of contract bonds

The contractor shall have adequate and liquid financial resources to be able to cope with unforeseen
situations which may develop in the construction period, especially if the project is very large and/or
unusual. A check on the financial position of the applicant should therefore be made with an analysis
of his financial statements which would indicate whether the contractor meets the requirements of
the Fund, (to wit:) xxxx

VII. Classification of bonds according to degree of their risk exposures

A. High-Risk Bonds: those exposed to the greatest risk of loss, such as those which undertake to
guarantee payment of determinate sum of money or deliver a specified property or its value, to wit:

1. Financial Guarantee Bonds

a. xxxxx

b. Surety Bond to guarantee loans or other financial arrangements

xxxx

Underwriting Requirements:

Normally, with counter-bond secured with collateral except for government entities and very large
and well-established private contractors and firms.

xxxx

xxxx

B. Foreign Denominated Bonds-these include bonds which may otherwise be classified as medium
risks, but on account of their being issued in foreign denomination are subject to the added risk of
currency fluctuations and should therefore be classified as high-risk bonds. Prior Central Bank
approval is necessary. XIII. The Authority to sign bonds by the General Insurance

Fund:

xxxx

BB. All high-risk bonds, and medium-risk bonds which are considered high-risk under certain
conditions defined herein, shall be subject to the approval of the Board of Trustees, regardless of
amount.  (Emphases supplied)
42

With the aforecited GSIS policies and procedures as guidelines and the basic rule that, in
administrative cases, the quantum of evidence necessary to find an individual administratively liable
is substantial evidence,  the Court assesses the liability of Mallari in this administrative case.
43

Section 5, Rule 133 of the Rules ofCourt explicitly provides that in cases filed before administrative
or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence.
Substantial evidence is defined as such amount of relevant evidence which a reasonable mind might
accept as adequate to support a conclusion. It is more than a mere scintilla of evidence. The
standard of substantial evidence is satisfied when there is a reasonable ground to believe, based on
the evidence submitted, that the respondent is responsible for the misconduct complained of. It need
not be overwhelming or preponderant, as is required in an ordinary civil case, or evidence beyond
reasonable doubt, as is required in criminal cases, but the evidence must be enough for a
reasonable mind to support a conclusion. 44

Contrary to the ruling of the CA, the Court finds substantial evidence to prove Mallari’s administrative
liability.

The Court notes that irregularities, defects and infirmities attended the processing, approval,
issuance, and the actual drawdown of the US$10,000,000.00 ECOBEL bond in which Mallari
actively participated. In the July 9, 2004 Memorandum  which was adopted by reference as an
45

integral part of the assailed June 8, 2005 Order,  the Ombudsman found, thus:
46

B. REPORTS OF THE GSIS LEGAL SERVICES GROUP, GSIS INTERNAL AUDIT SERVICES
AND WITNESS ATTY. NORA SALUDARES

In a Memorandum for the Senior Vice-President and General Counsel dated March 10, 2000, the
GSIS Legal Service Group (Litigation and Investigation) determined that:

1. Surety Bond No. 029132 was prepared and issued without a counter-bond and sufficient
collateral being posted as required by Policy and Procedural Guidelines (PPG) Nos. 64-80
[Re; Amendment of, and supplement to PPG No. 16-76 on Bond Underwriting Guidelines for
the General Insurance Fund] and 16-76 [Re: Bond Underwriting Requirements for the
General Insurance Fund];

2. Surety Bond No. 029132, considered a high-risk bond per GSIS guidelines, was prepared
and issued without the approval of the GSIS Board of Trustees;

3. Surety Bond No. 029132 was issued before ECOBEL Land, Inc. paid the corresponding
premium therefor;

4. Surety Bond No. 029132 was issued to Philippine Veterans Bank, not Bear and Stearns.
Accordingly, GSIS London Representative Office (LRO) should not have accepted Ecobel’s
premium payment a year after the bond was issued;

5. Surety Bond No. 029132 was issued without furnishing GSIS a copy of the Loan
Agreement between Ecobel Land, Inc. and Philippine Veterans Bank;

6. Surety Bond No. 029132 was hastily prepared and issued without taking concrete action
to protect the interest of GSIS;

7. Atty. Campana of GSIS LRO accepted Ecobel’s premium without the authority to do so.

xxxx

The more detailed and exhaustive Memorandum dated August 29, 2001 of the GSIS Office of the
Auditor determined that the following GSIS Officials be held accountable for the irregular issuance of
Surety Bond No. 029132, viz:
1. Amalio A. Mallari, former SVP, GIG, for having signed said surety bond, classified as a high-risk
bond, without the approval of the Board of Trustees pursuant to GSIS guidelines and policies, for
having strongly recommended the same to be fully secured and for having issued the same and
making it appear that the Obligee was Philippine Veterans Bank when he fully knew that the
Principal (Ecobel) had a foreign funder.

xxxx

In a letter, dated September 13, 2002, to the FFIB, Mr. Reynaldo R. Nograles, OIC-Office of the
President, Internal Audit Service, GSIS, attached a copy of the excerpts from the Final Report on the
GSIS Audit of Underwriting Departments. Said Audit Report found that: there was non-adherence to
existing policies/SOPs in the processing and release of the Ecobel Land, Inc. guaranty payment
bond, as well as non-adherence to GSIS GIG’s business policy statement on survey, inspection or
assessment of risks/properties to be insured including re-inspection and survey of insured
properties.

The Sworn Statement, dated September 23, 2002, of Atty. Nora M. Salud aresmerely confirms the
findings of the GSIS Internal Audit and Legal Services Group, viz: at the time the surety bond was
issued that bore the signatures of Josephine Edralin Boright as Principal and PVB as Obligee and
likewise of Amalio A. Mallari for the Surety or GSIS, there was yet no premium payment and no
sufficient collateral; the collateral that was subsequently submitted was found to be spurious;
Fernando U. Campana received premium payment at the GSIS London Office subsequent to the
cancellation of the surety bond; Alex M. Valencerina’s assurance that the bond is fully secured from
the inception of the transaction contributed to the eventual release and issuance of the surety bond
that bore the confirmation/approval of Amalio A. Mallari.  (Emphases supplied)
47

On the basis of these findings, the Court agrees with the Ombudsman’s conclusion that Mallari’s
liability for the administrative act of grave misconduct was established by substantial evidence.

It is well-settled that findings of fact and conclusions by the Office of the Ombudsman are conclusive
when supported by substantial evidence. Their factual findings are generally accorded great weight
and respect, if not finality by the courts, by reason of their special knowledge and expertise over
matters falling under their jurisdiction.  Here, the Court finds no reason to overturn the finding of the
48

Ombudsman that Mallari was guilty of grave misconduct. Misconduct is a transgression of some
established and definite rule of action, more particularly, unlawful behavior or gross negligence by a
public officer. The misconduct is considered as grave if it involves additional elements such as
corruption or willfulintent to violate the law or to disregard established rules, which must be proven
by substantial evidence; otherwise, the misconduct is only simple. Corruption, as an element of
grave misconduct, consists in the act of an official or fiduciary person who unlawfully and wrongfully
uses his station or character to procure some benefit for himself or for another person, contrary to
duty and the rights of others.  In other words, in grave misconduct, the elements of corruption, clear
49

intent to violate the law, or flagrant disregard of an established rule must be evident.
50

It must be recalled that it was Mallari who presented to the INCOM a proposal to consider the grant
of a guaranty payment bond to ECOBEL. He hastily approved and signed ECOBEL’s bond
application without complying with the instruction of the INCOM to look into the viability of the project
of ECOBEL; without the required counter-bond and sufficient collateral; without the prior approval of
the GSIS Board of Trustees; without payment by ECOBEL of the corresponding premium; and
without the mandatory Loan Agreement between ECOBEL and PVB.

During the INCOM meeting on March 10, 1998 when the ECOBEL bond application was approved,
Mallari made representation and conclusion, without sufficient basis, that dollar funding was assured
as the target clientele involved the Fil-Am markets in the U.S. and Europe. Only a day after its
approval, or on March 11, 1998, he immediately signed and issued the ECOBEL bond without giving
ample time and opportunity for undertaking work to be done such as inspection, survey and
assessment of properties offered as collateral. He also made it appear that the obligee was PVB
when he fully knew that ECOBEL had a foreign funder.

Moreover, Mallari gave his strong recommendation to the INCOM, without basis, that the bond was
fully secured by collaterals. He promoted the said bond despite its cancellation and knowledge of the
irregularities attending its issuance, and facilitated the certification requirements of the loan
agreement between ECOBEL and BSIL which paved the way for the "drawdown" of the loan from
the latter. All these acts amply demonstrated Mallari’s flagrant willful disregard of the basic principles
of suretyship, the GSIS rules and regulations on bond underwriting, and his gross negligence in the
performance of his official functions as SVP, GIG. Indeed, they sufficed to uphold his liability for
grave misconduct.

Interestingly and as correctly observed by the OSG, the hurried and fast-paced approval of the
ECOBEL bond application was unmistakable, despite the risks involved which should have called for
stricter and more stringent measures in its processing. It indeed appeared devious that the
Indemnity Agreement was prepared on February 11, 1998, even a month before the bond was
actually issued. Also, at the time the said bond was issued, the premium was not yet paid as
required by GSIS policies and guidelines. It must be noted that the GSIS billing statement, dated
March 11, 1998, in the amount of $165,000.00 covering the one-year premium for the ECOBEL
bond, was prepared by Mallari himself, which means at the time he signed the said bond on even
date, he was fully aware that the corresponding premium was notyet paid by ECOBEL.

Mallari, being a high-ranking GSIS official, was expected to exemplify competence and exercise
good judgment in upholding the interest of GSIS. By hastily approving and signing the ECOBEL
bond, he surely failed to perform his essential discretionary duties. When he affixed his signature on
the surety bond, deficiency and misrepresentation were obvious on its face as found by the
Ombudsman in its January 27, 2005 decision:

[T]he date of the contract agreement between principal (ECOBEL) and Obligee (Philippine Veterans
Bank) was left blank, indicating that the contract was not available up to the time the Bond was
signed. In fact, there was no such contract or agreement executed between Ecobel Land Inc. and
Philippine Veterans Bank! It runs counter to the provision that states "… a copy of which
contract/agreement is hereto attached and made a part hereof …" which appears in the bond itself.

Furthermore, in the "Affidavit of Justification" which is part and parcel of the bond, subscribed and
sworn to by respondent Mallari, he "… states and deposes that the said Corporation (ECOBEL) is
actually worth the amount specified in the foregoing undertakings, to wit: (US$10,000,000.00) …
over and above all just debts, obligations and properties exempt from execution." 51

All these took place with Mallari’sactive participation, in clear violation of the policies and guidelines
of GSIS on Bond Underwriting Guidelines for the General Insurance Fund embodied in PPG No. 64-
80-A, dated January 25, 1980, and PPG No. 16-76, dated November 26, 1976.  Certainly, Mallari’s
52

participation, as aptly opined by the OSG, did not constitute day-to-day functions that weredeemed
ministerial in nature. The evidence shows his active involvement inthe hasty and irregular issuance
of the ECOBEL bond.

Indeed, Mallari was duty bound to ensure that the procedural and documentary requisites were duly
complied with before affixing his signature on the bond. In the same way, he should not have signed
the attestation clause as the required underwriting work had not been diligently complied with. His
failure to act accordingly was a gross and inexcusable violation of the GSIS avowed policy on strict
underwriting.

His act constituted an obvious disregard of the aforementioned GSIS policies and guidelines which
evidently rendered undue benefit and advantage to ECOBEL to the detriment of GSIS, whose right
and interest he was duty bound to protect.

Mallari’s claim of good faith as regards his repeated instructions to Valencerina to cancel the bond
cannot relieve him of liability. Records reveal that, despite such cancellation instructions, he did not
sign the cancellation notice for ECOBEL which Valencerina prepared for his signature pursuant to
the PGM directive. He, in fact, told Valencerina that "ECOBEL could no longer be cancelled as it was
already a done deal." 53

Mallari cannot also validly invoke his defense of reassignment. Contrary to his allegations, records
disclose that even after his transfer from the GIG to the HRPDG on August 1, 1998 and despite the
issuance of the November 19, 1998 Memorandum by PGM ordering the suspension of the
processing and issuance of guaranty payment bonds, he continued to promote the use of the bond
as evidenced by his communications with Boright through Facsimile Transmittal Sheets, dated
January 13, 1999 and January 20, 1999,  wherein Boright requested documents or certifications
54

necessary to facilitate the loan agreement with BSIL. It was also in January 1999 when Mallari
personally asked Valencerina to sign the two (2) certifications as requested by ECOBEL inorder to
make BSIL the current oblige,  through which, ECOBEL was able to sign the loan agreement and
55

receive the "drawdown" from BSIL. Significantly and as aptly concluded by the OSG, ECOBEL did
not possess the character, capacity and capitalas a debtor as required for the grant of the GSIS
surety bond. Thus, Mallari’s approval, issuance and promotion of the ECOBEL bond evince bad
faith, ill motive and corruption, in contravention of his duty to protect the right and interest of GSIS,
and to follow basic laws on surety as GSIS policies and guidelines dictate, thereby constituting the
administrative offense of grave misconduct.

In Resolution No. 91-1631, dated 27 December 1991, the Civil Service Commission (CSC)
promulgated the Omnibus Civil Service Rules and Regulations (Omnibus Rules), pursuant to
Section 12(2), Chapter 3, Title I(A), Book V of Executive Order No. 292 known as the "Administrative
Code of 1987." Under Section 22, Rule XIV of the Omnibus Rules, grave misconduct isa grave
offense punishable by dismissal.  Under Section 52-A, Rule IV of the Uniform Rules in
56

Administrative Cases in the Civil Service  (Uniform Rules), grave misconduct is classified as a grave
57

offense punishable by dismissal even if committed for the first time. Thus, the Ombudsman correctly
imposed upon Mallari the penalty of dismissal. Considering Mallari’s retirement from GSIS on
February 1, 2004,  the penalty of dismissal is no longer feasible. His retirement notwithstanding, he
58

should and must beheld accountable. As correctly pointed out by the Ombudsman in its assailed
September 1, 2005 Order, his retirement did not in any way affect the findings and conclusions
arrived at in this case. More importantly, the corresponding disabilities and accessories to
administrative penalties provided for in Sections 57 to 58 of the Uniform Rules  such as cancellation
59

of eligibility and perpetual disqualification for reemployment in the government service still attach.

Indeed, the decision of the CA completely exonerating Mallari from any administrative liability is a
violation of a well-settled rule that as long as substantial evidence supports the Ombudsman’s ruling,
its decision will not be overturned. The CA unfortunately failed to consider all the attendant
circumstances as detailed above.

Clearly, the Ombudsman was correctwhen it ruled that there was more than substantial evidence to
hold Mallari administratively liable for grave misconduct. Under Section 27 of R.A. No. 6770, the
findings of fact by the Ombudsman, when supported by substantial evidence, are conclusive. 60
On the issue of compliance with the constitutional requirements that a decision shall state clearly
and distinctly the facts and the law on which it is based, the CA’s disquisition fails to persuade.

In its assailed Decision, dated June 6, 2008, the CA stated that the Ombudsman simply ruled in its
orders that there was more than substantial evidence on record to prove the guilt of Mallari for grave
misconduct without stating clearly and distinctly the facts and the law on which it is based. As
already stated, the June8, 2005 Ombudsman Order, approved with modifications the January 27,
2005 Decision, rendered by the FFIB and adopted by reference the July 9, 2004 OSP Memorandum
issued in connection with Criminal Case No. 27474, as an integral part and support of the said order.

Also, as correctly noted by the OSG citing Vice-Admiral Dumangcas v. Hon. Marcelo,  the June 8,
61

2005 Order was not a case of a total absence of factual and legal bases or a failure on the part of
the Ombudsman to appreciate and review the decision rendered by the FFIB. The state of affairs
was that the said Ombudsman’s order stemmed from its review of the findings of fact and
conclusions reached by the FFIB, thereby imposing upon Mallari the proper administrative liability of
grave misconduct instead of simple neglect of duty, inefficiency and incompetence in the
performance of official duties. It must be mentioned that the facts and the law were already stated in
the January 27, 2005 Decision of the FFIB reviewed by the Ombudsman in its order.

The September 1, 2005 Order denying Mallari’s motion for reconsideration of the January 27, 2005
Decision and June 8, 2005 Order clearly and distinctly stated the facts and the law on which it was
based, thus:

[I]n the case of respondent Mallari, he adopts a new theory: there were two bonds which he refers to
as the PVB (Philippine Veterans Bank) bond and the Bear and Stearns bond. This is a deviation
from his original assertionsin his counter affidavit that it was his understanding that PVB will be
merely a conduit/correspondent bank between the foreign funder and Ecobel, and to give the
transaction the color of government interests to qualify for a surety bond with the GSIS. Mallari
further rationalizes:

"Moreover, the conformity of PVB to the bond was never obtained and the premium for this bond
was never paid. For all intents and purposes, therefore, the PVB bond was never perfected at all. At
best, it was simply a proposal which did not materialize because PVB as the obligee never gave its
consent and as stated above, the premium for this bond was never paid. As a mere proposed bond,
it had no legal or binding effect and for purposes of this case, it could not have been used for the
subject drawdown by Ecobel from Bear and Stearns."

Sadly, respondent insists on pursuing a line of argument which betrays an utter disregard of
suretyship principles.  It was already said in the questioned decision, as soon as the bond is in the
1âwphi1

hands of the Obligor, he can represent and negotiate with any prospective Obligee (Lender); and
when accepted by the Obligee, the suretyship contract becomes valid and binding as between the
Surety and Obligor, even if the premium is unpaid.

Mallari disavows any liability for misconduct but it cannot be disregarded that the Investment
Committee approved the bond on March 10, 1998. The following day, March 11, 1998, Mallari
immediately signed and issued the bond without giving ample time and opportunity for underwriting
work to be done. 62

Finally, Mallari should be reminded that grave misconduct has always been and will remain an
athema in the civil service. It inevitably reflects on the fitness of a civil servant to continue in office.
When an officer or employee is disciplined, the object is the improvement of the public service and
the preservation of public's faith and confidence in the government.  WHEREFORE, the petition is
63
GRANTED. The June 6, 2008 Decision of the Court of Appeals in CA-G.R. SP No. 92109 is SET
ASIDE. The Decision of the Office of the Ombudsman, dated January 27, 2005 as modified by the
June 8, 2005 Order, and its Order, dated September 1, 2005, finding Amalio A. Mallari GUILTY of
Grave Misconduct and ordering his DISMISSAL from the government service, are REINSTATED.
Considering that Amalio A. Mallari has already retired from the Government Service and Insurance
System, his civil service eligibility is cancel led. He is also perpetually disqualified for reemployment
in the government service.

SO ORDERED.

SECOND DIVISION

G.R. No. 133541             April 14, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
RICKY QUIMZON, appellant.

DECISION

AUSTRIA-MARTINEZ, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the
decision1 dated December 17, 1997 of the Regional Trial Court of Tacloban City, Branch 16, in
Criminal Case No. Bn-92-7-2924, finding appellant Ricky Quimzon2 guilty of murder and imposing
upon him the penalty of reclusion perpetua.

In an Information dated July 28, 1992, appellant and three other persons, namely Salvacion
Lacsarom, Canoto Cabero3 and Edgardo Detona4 were charged with the crime of murder allegedly
committed as follows:

That on or about the 7th day of March, 1992, in the Municipality of Burauen, Province of
Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and helping one another with treachery and abuse of
superior strength, with intent to kill, did, then and there willfully, unlawfully, and feloniously
attack, assault, strike, stab and wound one Marlo Casiong with short bolos locally known as
‘pisao’ which accused provided themselves for the purpose, thereby hitting and inflicting
upon the said Marlo Casiong with fatal wounds on the different parts of his body which
caused his death shortly thereafter.
 Contrary to law.5

Appellant "surrendered" to the police authorities on August 18, 19946 while his other co-accused
remain at-large. When arraigned on September 28, 1994, appellant, with the assistance of counsel,
entered a plea of not guilty to the crime charged.7 Thereafter, trial ensued.

The evidence for the prosecution established the following facts:

On the night of March 7, 1992, victim Marlo Casiong, his sister Emolyn Casiong, and one
Rommel Redoña were at the social hall of Burauen, Leyte attending a benefit dance. Around
11:30 of the same evening, while dancing with one Salvacion Lacsarom, Marlo accidentally
bumped his cousin, herein appellant Ricky Quimzon. Emolyn and Rommel, who were then
dancing with each other and were about one meter away from Marlo and Salvacion,
witnessed the incident. Thereafter, while the dance continued, Salvacion held Marlo’s hand
and invited him to go outside the dance hall as she had something important to tell him.
Thereupon, Marlo asked Emolyn to stay put because he was coming back. Feeling
apprehensions about it, Emolyn and Rommel followed Salvacion and Marlo as they went out
of the dance hall. Emolyn noticed that Canoto Cabero, Edgardo Detona and appellant Ricky
also went out of the hall in a hurried manner thereby overtaking them (Emolyn and Rommel).
Outside the social hall, Emolyn heard Salvacion say "ito na" then saw her push Marlo
towards the group of Canoto, Edgardo and Ricky. Canoto then grabbed Marlo by the wrist
and repeatedly stabbed him with a short bolo locally known as pisao. Edgardo followed suit
by stabbing Marlo twice at the back. Despite being wounded, Marlo was able to get away
from Canoto and Edgardo and walked fast towards the nearby health center. Marlo was
about to reach the gate of the health center when Ricky, who was behind Marlo, held the
latter’s hands. Marlo tried to free himself from the clutches of Ricky but in the course of his
struggle he fell down. Thereupon, Ricky rode on the back of Marlo and repeatedly stabbed
him on his back. Emolyn and Rommel shouted for help prompting an unidentified person to
throw stones and utter, "that is enough". Thereafter, Canoto, Edgardo and Ricky fled. With
the help of some persons, Emolyn brought Marlo to the Burauen General Hospital but Marlo
died before reaching the hospital.8

In denying criminal liability, appellant interposed the defense of alibi. He claims that he does not
know Salvacion Lacsarom, Canoto Cabero and Edgardo Detona. He denies that he stabbed Marlo
Casiong. Appellant testified, as follows: He could not have been at the scene of the crime when the
incident happened as he was in Barangay Patag attending another benefit dance. He arrived at
Barangay Patag around 7 o’clock in the evening of March 7, 1992 and stayed there until 7 o’clock of
the following morning. Barangay Patag is 18 kilometers away from the poblacion of Burauen where
Marlo was killed and can only be reached by riding a horse or a carabao or by hiking for five hours.
He only came to know of the death of Marlo when he went to the poblacion of Burauen. He was
included as one of the accused because he refused to testify in favor of the prosecution.9

Alfredo Rellesiva, then Barangay Chairman of Barangay Patag, Burauen, Leyte; and Mauro
Lobriquinto, then second Barangay Councilor of Barangay Candag-on, corroborated appellant’s
alibi.10

After trial, the court a quo rendered the assailed decision, the dispositive portion of which reads as
follows:

WHEREFORE, premises considered, the evidence of the prosecution having proven the guilt
of the accused beyond reasonable doubt, the Court hereby renders the conviction of the
accused Ricky Quimzon of the crime of Murder punished under Article 248 of the Revised
 Penal Code. The crime currently is punishable by RA 7659 classifying Murder as heinous
crime to which the death penalty is to be imposed.

However, the crime was committed on March 7, 1992 and the effectivity of RA 7659 is
January 1994. This act therefore cannot apply in the case at bench.

Two qualifying circumstances are alleged in the Information; namely, treachery and abuse of
superior strength. However, the latter circumstance is absorbed by the former.

There is no other aggravating nor mitigating circumstance. The penalty therefore to be

applied is reclusion perpetua being the medium of the penalty from minimum which is the
maximum of reclusion temporal to death.

The accused is therefore sentenced to suffer an imprisonment of Reclusion Perpetua.

On the civil aspect, the defense admitted the expenses incurred for the wake and burial of
the victim and neither did he controvert the moral damages suffered by the mother of the
victim. The accused is ordered to pay the sum of P53,000.00 as actual expenses for the
wake and burial, and P75,000.00 as moral damages payable to the mother of the victim
Erlinda Casiong.

The Philippine National Police and the NBI are urged to exert efforts to bring the at large co-
accused to justice for their complicity in the crime. Furnish them a copy. Meanwhile, until
they are placed under the custody of the law, archived the case.

SO ORDERED.11

Hence, the present petition with the following Assignment of Errors.

IT IS SUBMITTED BY THE APPELLANT THAT THE REGIONAL TRIAL COURT OF BURAUEN,

LEYTE ERRED IN FINDING THE ACCUSED GUILTY OF THE CRIME OF MURDER WITHOUT A
CORPUS DELICTI.

II

IT IS SUBMITTED BY THE APPELLANT THAT THE REGIONAL TRIAL COURT OF BURAUEN,

LEYTE ERRED IN GIVING CREDENCE TO THE TESTIMONY OF EMOLYN CASIONG THE LONE
PROSECUTION EYE WITNESS, LEADING TO THE CONVICTION OF APPELLANT ON THE
CRIME CHARGED IN THE ABOVE ENTITLED CASE.12

In support of his first assigned error, appellant contends that the testimony of prosecution witness
Dr. Adelaida Asperin on the report of the autopsy conducted on the body of the victim Marlo Casiong
was designed to prove the corpus delicti. Appellant, however, claims that Dr. Asperin is incompetent
to testify, as she was not the one who personally examined the body. Instead, it was a certain Dr.
Amparo Villanueva who conducted the autopsy on the body of Marlo Casiong. Appellant asserts that
the trial court should have regarded the testimony of Dr. Asperin as inadmissible for being hearsay;
and, in the absence of such testimony, the prosecution would not have been able to prove
the corpus delicti.
A review of the oral and documentary evidence presented before the trial court reveals that it was
indeed Dr. Amparo Villanueva, not Dr. Adelaida Asperin, who conducted the autopsy taken on the
body of Marlo Casiong. As the attending physician, Dr. Villanueva was the one who signed the
autopsy report.13 In fact, Dr. Asperin herself admitted in her testimony that she never saw the victim,
Marlo Casiong, and that it was Dr. Villanueva who conducted the autopsy and was the one who
prepared the autopsy report.14 However, Dr. Villanueva died before the prosecution was able to
present her as witness.

Nonetheless, even if Dr. Asperin is an incompetent witness as to the autopsy report and her
testimony could not have probative value for being hearsay, we still find that the prosecution was
able to sufficiently establish by competent evidence the corpus delicti in the instant case.

Corpus delicti is defined as the body, foundation or substance upon which a crime has been
committed, e.g. the corpse of a murdered man.15 It refers to the fact that a crime has been actually
committed.16 Corpus delicti does not refer to the autopsy report evidencing the nature of the wounds
sustained by the victim nor the testimony of the physician who conducted the autopsy or medical
examination.17 It is made up of two elements: (a) that a certain result has been proved, for example,
a man has died and (b) that some person is criminally responsible for the act.18

Proof of corpus delicti is indispensable in prosecutions for felonies and offenses.19 While the autopsy
report of a medico legal expert in cases of murder or homicide is preferably accepted to show the
extent of the injuries suffered by the victim, it is not the only competent evidence to prove the injuries
and the fact of death.20 It may be proved by the testimonies of credible witnesses. Even a single
witness’ uncorroborated testimony, if credible, may suffice to prove it and warrant a conviction
therefor.21

Based on the foregoing jurisprudence, it is clear that the testimony of Dr. Asperin is not
indispensable in proving the corpus delicti. Even without her testimony, the prosecution was still be
able to prove the corpus delicti by establishing the fact that the victim died and that such death
occurred after he was stabbed by appellant and his co-accused. These facts were established by the
testimony of prosecution witness Emolyn Casiong.22

The question that remains, therefore, is whether the trial court erred in giving credence to Emolyn’s
testimony over and above the testimonies of the defense witnesses.

In his second assigned error, appellant questions Emolyn’s credibility as a witness by pointing out
that Emolyn did not execute an affidavit regarding the events that she allegedly witnessed on March
7, 1992; that she did not present herself as a witness during the preliminary investigation conducted
by the Municipal Trial Court of Burauen, and that she only appeared as a witness when the case
was already being tried before the trial court. Appellant posits that Emolyn’s delay, which consisted
in her failure to execute an affidavit and her belated appearance as a witness, puts the
trustworthiness of her testimony in serious doubt.

We are not persuaded by appellant’s arguments.

When the credibility of witnesses is in issue, appellatte courts generally defer to the findings of the
trial court, considering that the latter is in a better position to decide the question, having heard the
witnesses themselves and observed their deportment and manner of testifying during the trial.23

It is doctrinally settled that the assessment of the credibility of a witness is a function that is best
discharged by the trial judge whose conclusion thereon is accorded much weight and respect that
will not be disturbed on appeal unless a material or substantial fact has been overlooked or
misappreciated which if properly taken into account could alter the outcome of the case.24

After going over the records of the case, we find no compelling reason to disturb the findings of the
trial court with respect to the credibility of Emolyn. Contrary to appellant’s assertion, we find that she
took no delay in relating the killing of her brother to the police authorities. Emolyn testified that
shortly after the killing of her brother, she submitted herself for investigation before the police
authorities of Burauen, Leyte. However, the chief of police informed her that she could not execute
an affidavit because she is a sister of the victim, but if the court would need her, then she can
execute an affidavit. Unschooled on the rules on evidence, it is but natural for Emolyn to have readily
accepted the explanation of the chief of police. In her direct examination, she testified, thus:

Q Now, shortly after the killing of your brother were you investigated by the police in
connection with the killing of your brother?

A We were investigated by the Chief of Police of Burauen, Leyte.

Q When you said ‘we’, to whom are you referring?

A Me and Rommel Redoña because we were the companions of my brother Marlo Casiong.

Q It is clear now that only you and Rommel Redoña were the companions of Marlo Casiong
on that fateful evening?

A Yes sir.

Q In the course of your investigation by the Chief of Police of Burauen relative to the killing of
your brother, was that investigation conducted on your person reduced into writing?

A The Chief of Police told me that when needed I might be investigated by the Court, I was
not asked to execute an affidavit, it was only Rommel Redoña who executed an affidavit.

Q So no affidavit was made by the police when you were investigated?

A None because the Chief of Police informed me that Rommel Redoña would only be the
one to execute an affidavit but if the Court would need me then I will execute an affidavit
because I am a sister of the victim and I may not be allowed.25

And on her cross-examination, to wit:

Q Being the witness will you tell us were you the one who reported this incident to the
police?

A My mother.

Q Being an alleged eye witness did you submit yourself for investigation by the police?

A My affidavit was not prepared because according to the chief of police of Burauen, Leyte I
cannot have my affidavit because I am the sister of the victim and only Rommel Redoña was
prepared.
 Q Sister of whom?

A Marlo Casiong.

....

COURT:

Q Who is the police who said because you are the sister of the victim you cannot have an
affidavit?

A The Chief of Police Nuevarez, the one who prepared the affidavit of Rommel was sir
Juanico.

ATTY SAY:

Q Will you still insist that Nuevarez refused to take your affidavit because you are a sister of
the victim?

A Yes, sir.

Q Even if we present Nuevarez in the witness stand you will still insist?

A Yes, sir.

Q Is it not a fact that your affidavit could not be taken because you were still in Manila?

A I was in Burauen, Leyte when that incident occurred.

Q But one thing is you have been in Manila?

A I went to Manila in 1994 already I went after Rommel Redoña.

Q The deceased Marlo Casiong was a very close, aside from being your brother you were
very closely associated with him?

A Yes, sir.

Q And you want to do anything for him?

A I will do everything because I was there when the incident took place.26

As to her apparent delay in testifying, Emolyn explained that she would not have appeared as a
witness if Rommel Redoña testified. However, she clarified that she only appeared as a witness
when the case was being tried by the trial court because she was left with no choice but to testify in
place of Rommel Redoña who told her that he no longer wanted to be a witness because he was
being threatened by appellant, to wit:

Q What was your purpose in going after Rommel Redoña in Manila?

A Because a subpoena reached us informing us that the one who killed my brother had
already been apprehended and because he was one of the eye witness I have to fetch him
in Manila and I even went there twice and my mother went there third time, only last
November.

Q Do you know the reason why he went to Manila despite the fact that he is one of the
witnesses in this case?

A When I went to Manila I met him and he told me Molin I really cannot testify because I
have been threatened by Ricky and company.

...

RE-CROSS BY ATTY. SAY:

Q Now since Rommel Redoña refused to testify you have to testify despite the fact that you
were told by the chief of police Nuevarez that you cannot testify in this case being a sister of
the victim?

A The chief of police there Nuevarez told me that if ever I will be needed by this Court I could
testify but only, my affidavit cannot be prepared then because I was the sister.

Q Then how did you know that the court needed your testimony?

COURT:

Q Were you subpoenaed by the Court?

A No.

ATTY. SAY:

Q So it was not the court actually required your testimony because you did not receive
subpoena?

A I did not receive any subpoena but Rommel Redoña whom I met many times was firm that
he cannot testify because he would be killed by the accused and because it was only the
three of us, Rommel, myself and the victim who went to the dance.

Q It is only reason why you testified in this case because Rommel Redoña has manifested
that he will not testify?

A Yes, sir.

COURT:

Q So if Rommel Redoña would have testified in Court you do not need to testify?

A I will not anymore because I have no affidavit.

 Q It was your lawyer Atty. Adaza who adviced you to testify in this case?

A He did not, because we could not find any other witness I have to testify.

Q Your lawyer did not advice you to testify?

A No, Your Honor.

Q Your lawyer did not say that you are not qualified to testify in this case because you are a
sister?

A No, Your Honor.

Q So you are testifying to substitute only the testimony of Rommel Redoña?

A Yes, your Honor, because Rommel Redoña did not want to testify anymore and we could
not find any other witness and since I was with them when the incident occurred, I testified
here.27

Moreover, we agree with the observation of the Office of the Solicitor General (OSG) that the
apparent delay in Emolyn’s appearance as a witness is explained by the fact that while a complaint
against appellant and his co-accused was filed as early as May 7, 1992, the case was archived
because all the accused remained at-large.28 It was only on August 18, 1994 that appellant was
arrested, which sufficiently explains why Emolyn was only able to appear as a witness on February
21, 1995.

Appellant further attacks the veracity of Emolyn’s testimony by calling our attention to some
purported inconsistencies and improbabilities in her account of the events that took place prior to
and during the stabbing of Marlo. Appellant contends: It could not have been possible for Emolyn to
overhear the conversation that took place between Salvacion and Marlo while they were dancing
because the music was loud, the beat was fast and furious, and Emolyn was engrossed in her
dancing. It was impossible for Emolyn to hear Edgardo Detona, Canoto Cabero and appellant ask
permission from their respective dancing partners before going out of the dance hall because
Emolyn went out of the dance hall ahead of them. Emolyn failed to accurately recall the sequence of
events that led to the stabbing of Marlo. She could not have witnessed Marlo’s stabbing as she
admitted that it was dark where the incident took place.

We are not convinced by appellant’s contentions.

First, it is not improbable for Emolyn to overhear the conversation between Salvacion and Marlo
while they were dancing because she (Emolyn) testified that she was just one meter away from
Salvacion and Marlo at that time. The fact that they were dancing, that the music is loud and that
there is another couple between them and her does not discount the possibility that she could have
heard them talking. Given the above circumstances, it is expected of Salvacion and Marlo to have
raised their voices in order to hear each other, which then enabled Emolyn to hear their
conversation.

Second, while Emolyn admitted that she and Rommel started to go out of the dance hall ahead of
Edgardo, Canoto and appellant, she sufficiently explained that she was able to hear the three men
talk to their respective partners because she was still near them when they asked permission from
their partners. Emolyn explained thus:
 Q How about Canuto Cavero when he went out together with Ricky Quimson, Edgardo
Detuna, did Canuto Cavero also leave his partner?

A He told his partner to wait for a while because he will be going out.

Q How about Edgardo Detuna he also left his partner when he went out?

A He also told his partner to wait for a while because he will be going out.

Q And likewise, Ricky Quimson also told his partner to wait for a while because he will be
going out?

A Yes.

Q So, in other words the three gentlemen Canuto Cavero, Edgardo Detuna and Ricky
Quimson left their partners because they will be going out for a while?

A Yes.

Q You are sure of that, you cannot be mistaken?

A I will not be mistaken.

Q You are very sure because you heard each one of them, Canuto Cavero, Edgardo
Detuna, and Ricky Quimson left their respective partners and told them, ‘Wait because I am
going out for a while’, you cannot be mistaken.

A Yes because we were close to each other.29

As to who went ahead of whom, Emolyn satisfactorily explained as follows:

Q In other words it is very clear that after Salvacion Lacsarom and your brother left you
immediately followed because you were were deeply alarmed leaving inside the hall
Edgardo Detuna, Canuto Cavero and Ricky Quimson?

A Edgardo Detuna and Canuto Cavero were already outside ahead of us.

Q Do you mean to tell us that Edgardo Detuna and Canuto Cavero left the hall ahead of
Salvacion Lacsarom and Marlo Casiong?

A The two, Canuto Cavero and Edgardo Detuna were able to reach outside ahead of Marlo
Casiong and Salvacion Lacsarom because they walked fast.

Q But the fact is, Salvacion Lacsarom and Marlo Casiong left the dancing hall ahead of
everybody?

A They went out ahead but they were overtaken by Canuto Cavero and Edgardo Detuna.

Q So it is not correct to say that you were the one who immediately followed Salvacion
Lacsarom and Marlo Casiong because according to you Edgardo Detuna and Canuto
 Cavero followed Salvacion Lacsarom and Marlo Casiong, you were not the one who
immediately followed the pair but Edgardo Detuna and Canuto Cavero, is that correct?

A No because Edgardo Detuna and Canuto Cavero were faster and they went out the
shorter way while I followed Marlo Casiong and Salvacion Lacsarom who took a little slower
in going out.

...

Q How about Ricky Quimson, was he still dancing when you immediately followed Salvacion
Lacsarom and Marlo Casiong outside?

A He was already outside the dancing hall because he followed Canuto Cavero and Edgardo
Detuna.

Q But he was behind Edgardo Detuna and Canuto Cavero?

A Yes.30

Third, we find that the alleged probabilities and inaccuracies committed by Emolyn in recounting the
events that took place prior to and during the stabbing of Marlo refers to trivial matters that do not
refer to material points and do not detract from Emolyn’s clear and positive testimony that she saw
appellant and the other accused stab and kill her brother.

Settled is the rule that inconsistencies in the testimony of prosecution witnesses with respect to
minor details and collateral matters do not affect either the substance of their declaration, their
veracity, or the weight of their testimony.31 In fact, such minor flaws may even enhance the worth of a
testimony, for they guard against memorized falsities.32

Fourth, while Emolyn testified that it was dark inside the dance hall, it is also clear from her
testimony that the stabbing took place outside the hall and there were fluorescent bulbs near the
places where Marlo was stabbed by Canoto, Edgardo and appellant. When cross-examined, she
testified as follows:

Q How many times did you meet the accused in dances?

A Several times because we meet at dances whenever there is one.

Q This incident happened outside the dancing hall, is that correct?

A Yes.

Q But the alleged bumping of Ricky Quimson by Marlo Casiong happened inside the dancing
hall?

A Yes.

Q And it happened while the dance was going on?

A The dance was in progress but the four of them went out.33
Emolyn testified further:

Q What kind of light was illuminating the dancing hall?

A Fluorescent bulbs.

Q How many fluorescent lamps were there?

A There were two outside and one was at the gate of the health center and one at the gate
of the dancing hall.

Q How far was the nearest fluorescent lamp where the first stabbing of the victim was made?

A Witness points to a distance which indicated 4 meters when measured.

Q How high was the fluorescent lamp from the ground?

A About 2 meters and 35 cms. high from the floor.

Q At the health center where Marlo Casiong was attacked by Ricky Quimson, how far was
the fluorescent light?

A Witness points to a distance which indicated 4 meters when measured.

Q How about the lamp from the ground, how high?

A The same height, about 2 meters and 35 cms. from the ground.34

We have held that kerosene lamp, flashlight, even moonlight or starlight may, in proper situations, be
considered sufficient illumination.35 In the instant case, the fluorescent bulbs situated near the places
where appellant and his companions attacked Marlo enabled Emolyn to witness the killing of her
brother.

Thus, we reiterate the well-entrenched rule that in assessing the credibility of witnesses, the factual
findings of the trial court should be respected. The judge a quo was in a better position to pass
judgment on the credibility of witnesses, having personally heard them when they testified and
observed their deportment and manner of testifying.36

Appellant interposes the defense of alibi. However, alibi, like denial, is an inherently weak defense
as it is easy to concoct and difficult to prove.37 While appellant’s testimony is corroborated by
defense witness Rellesiva and Lobriquito, the trial court correctly gave more probative weight to the
lone testimony of prosecution witness Emolyn who positively identified appellant as one of the
perpetrators of the crime.

Appellant’s defense of alibi fails in the face of Emolyn’s positive identification of him as one of her
brother’s killers. Positive identification destroys the defense of alibi and renders it impotent,
especially where such identification is credible and categorical.38 The defense of denial is unavailing
when placed astride the undisputed fact that there is positive identification of the felon.39
We affirm the trial court’s finding that there was treachery in the killing of Marlo. There is treachery
when the offender commits any of the crimes against the person, employing means, methods or
forms in the execution thereof which tend directly and specially to insure its execution, without risk to
himself arising from the defense which the offended party might make.40 The essence of treachery is
the sudden and unexpected attack by an aggressor on an unsuspecting victim, depriving the latter of
any real chance to defend himself and thereby ensuring its commission with no risk to the
aggressor.41 In the present case, Marlo accepted Salvacion’s invitation for them to go outside the
dance hall on the impression that the latter has something important to tell him. He has no inkling of
any impending danger on his life as he even told his sister, Emolyn, to wait for him because he will
be coming back.42 Outside the dance hall, as soon as Salvacion pushed Marlo towards them, Canoto
and Edgardo immediately attacked him without warning, inflicting wounds on the front and back
portions of his body with the use of bolos. Although this initial assault on Marlo was frontal it may still
be considered treacherous because the attack was sudden and unprovoked. There is no evidence
showing that the attack was preceded by any exchange of words or any untoward incident between
the assailants and Marlo, sufficient to warn Marlo of the impending attack on him. The mode of
execution was in such a manner that Marlo was left with no opportunity to repel the attack or avoid it.
Moreover, he was unarmed while all three assailants were carrying deadly weapons. The treachery
continued when appellant held the hands of Marlo as the latter was running away from the initial
stabbings of Canoto and Edgardo, rode on Marlo’s back when the latter fell down and repeatedly
stabbed Marlo who had already been rendered weak by the multiple stab wounds inflicted by
Edgardo and Canoto. Appellant attacked Marlo from behind and repeatedly stabbed Marlo when he
was already in a defenseless position.

In any criminal prosecution, the only requisite is that the prosecution proves the guilt of the accused
beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof
that, excluding the possibility of error, produces absolute certainty. Moral certainty only is required,
or that degree of proof which produces conviction in an unprejudiced mind.43

Hence, we uphold the trial court’s judgment declaring appellant guilty of murder beyond reasonable
doubt. The attendant circumstance of treachery qualified the killing to murder as defined under
paragraph 1, Article 248 of the Revised Penal Code. Since treachery attended the killing, abuse of
superior strength alleged in the Information is absorbed by said circumstance.44

Aside from abuse of superior strength, no other aggravating circumstance was alleged and proved
by the prosecution.

In a criminal case, an appeal throws open the entire case wide open for review, and the appellate
court can correct errors, though unassigned, that may be found in the appealed judgment.45

It appears in the Commitment Order, dated August 14, 1994, issued by the Municipal Trial Judge of
the Municipal Trial Court of Burauen, Leyte, that appellant "voluntarily surrendered to SPO1 Josefino
Agustin of PNP Burauen, Leyte on August 18, 1994".46 An examination of the records reveals that it
can not be considered as a mitigating circumstance. For the mitigating circumstance of voluntary
surrender to be appreciated, the accused must satisfactorily comply with three requisites: (1) he has
not been actually arrested; (2) he surrendered himself to a person in authority or the latter’s agent;
and (3) the surrender is voluntary. There must be a showing of spontaneity and an intent to
surrender unconditionally to the authorities, either because the accused acknowledges his guilt or he
wishes to spare them the trouble and expense concomitant to his capture.47

The "surrender" of appellant was far from being spontaneous and unconditional. The warrant of
arrest is dated June 17, 1992 and all the accused, including appellant, remained at-large, which
prompted the Executive Judge of the Regional Trial Court of Palo, Leyte to archive the case.48 It took
appellant two years before he finally "surrendered" to the police. In between said period, appellant,
through counsel, filed a Motion to Fix Bail Bond49 without surrendering his person to the jurisdiction
of the trial court. Records do not reveal that the motion had been acted upon by the trial court. This
act of appellant may be considered as a condition set by him before he surrenders to proper
authorities, thus preventing his subsequent act of surrendering from being considered as a mitigating
circumstance.

Moreover, we noted in the Motion to Fix Bail Bond, filed on July 9, 1992, that counsel for appellant
alleged that appellant "is barely 15 years of age". When appellant was called to the witness stand on
August 2, 1996, or four years thereafter, appellant asserted that he was 21 years old. The stabbing
incident took place on March 7, 1992, thus placing appellant to be 17 years old, a minor, when he
committed the crime. The records do not show that the prosecution refuted appellant’s minority; and
absent any evidence to the contrary, the trial court should have applied in favor of appellant the
benefits under Article 68 of the Revised Penal Code, to wit:

Art. 68. Penalty to be imposed upon a person under eighteen years of age. –

...

2. Upon a person over fifteen and under eighteen years of age the penalty next lower
than that prescribed by law shall be imposed, but always in the proper
period. (Emphasis supplied)

Under Article 248 of the Revised Penal Code, the perpetrator of the crime of Murder shall be
punished by reclusion perpetua to death. Applying the express provision of the aforequoted Article
68 and pursuant to Article 61, paragraph 2, of the same Code, to wit:

Art. 61. Rules of graduating penalties. - . . .

1. When the penalty prescribed for the felony is single and indivisible, the penalty
next lower in degree shall be that immediately following that indivisible penalty in the
respective graduated scale prescribed in Article 71 of this Code.

...

the imposable penalty is reclusion temporal or 12 years and 1 day to 20 years.

Considering the actual penalty to be imposed upon appellant, as prescribed by law, is not reclusion
perpetua or death, appellant is entitled to the application of the Indeterminate Sentence Law.50 Thus,
from the penalty of reclusion temporal, one degree lower is prision mayor or 6 years and 1 day to 12
years from which will be drawn the MINIMUM period of the indeterminate sentence; while pursuant
to paragraph 2, Article 64 of the Revised Penal Code, in the absence of any modifying circumstance,
the penalty prescribed by law should be imposed in its medium period, or anywhere between 14
years, 8 months and 1 day to 17 years and 4 months, as the MAXIMUM period of the indeterminate
sentence.

We now come to the civil liability of appellant.

As to actual damages, we find that the evidence presented by the prosecution do not adequately
provide a concrete basis for the amount of ₱53,000.00 awarded by the trial court to the victim’s
mother, Erlinda Casiong. She testified that her family incurred expenses amounting to ₱50,206.00,
during the wake and burial of her son. As proof, she presented seven official receipts amounting to
₱4,490.00 only.51 Other evidence consisting of small pieces of paper which were properly identified
by Erlinda as having been signed by the persons from whom she bought the merchandise that were
used or consumed during Marlo’s wake and burial, amounting to ₱4,020.0052 may be considered
competent evidence and admitted under Section 22, Rule 132 of the Rules of Court.53 Thus, the
prosecution was able to prove only a total of ₱8,510.00. The other receipts presented were not
properly identified and therefore inadmissible under the Rules of Court.

Nonetheless, in our recent rulings, we have held that in cases where the heirs of the victim failed to
prove their claim for actual damages, but have shown that they have suffered pecuniary loss by
reason of the death of the victim, an award of ₱25,000.00 by way of temperate damages is justified
in lieu of an award of actual or compensatory damages.54 In People vs. Villanueva,55 we held that in
cases where actual damages was proven by receipts during the trial but said damages amounted to
less than ₱25,000.00, as in the present case, the award of temperate damages in the amount of
₱25,000.00 is justified in lieu of said actual damages. The rationale for such an award of temperate
damages is that it would be anomalous and unfair for the heirs of the victim, who by presenting
receipts, tried and succeeded in proving actual damages but in an amount less than ₱25,000.00, to
be placed in a worse situation than those who might not have presented any receipts at all but would
be entitled to ₱25,000.00 for temperate damages.56

Erlinda Casiong testified that her son was single when he died;57 that she felt sad when her son was
killed.58 We find her testimony sufficient to sustain the trial court’s award of moral damages but we
reduce the amount of ₱75,000.00 to ₱50,000.00 in line with current jurisprudence.59

Erlinda Casiong further testified that her son was working as a helper in a passenger bus.60 The
indemnification for loss of earning capacity partakes of the nature of actual damages which must be
duly proved.61 In the absence of competent evidence to prove how much the victim was earning, the
heirs of the victim are not entitled thereto.

The trial court did not award civil indemnity. In consonance with prevailing jurisprudence, we award
the amount of ₱50,000.00 to the heirs of Marlo Casiong as civil indemnity for his death. The amount
is awarded without need of proof other than appellant’s commission of the crime which resulted in
the death of the victim.62

WHEREFORE, the decision of the Regional Trial Court of Tacloban City (Branch 15) is AFFIRMED
with MODIFICATIONS. Appellant Ricky Quimzon is found GUILTY beyond reasonable doubt of the
crime of MURDER and after applying The Indeterminate Sentence Law, and there being no
modifying circumstance, he is sentenced to suffer imprisonment, from eight (8) years and one (1)
day of prision mayor as MINIMUM up to fourteen (14) years and ten (10) months of reclusion
temporal as MAXIMUM. He is ordered to pay Erlinda Casiong, the mother of the deceased Marlo
Casiong, the amounts of ₱50,000.00 as civil indemnity for the victim’s death; ₱25,000.00 as
temperate damages; and ₱50,000.00 as moral damages.

Costs de oficio.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-33284 April 20, 1989

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROLANDO CENTENO, ET AL., defendants. ROLANDO CENTENO, defendant- appellant.

The Solicitor General for plaintiff-appellee.

Rodrigo Law Office for defendant-appellant.

CRUZ, J.:

It all started, innocuously enough, with a drinking spree. On that afternoon of December 1, 1968,
Rolando Santos was enjoying himself with some friends and plenty of beer that he eventually could
not carry. Within the hour, he would be dead of a massive brain hemorrhage. The venue would be
the municipal building itself. And the police chief himself, together with one of his policemen, would
be accused of murdering him.

How Santos died is the question we have to settle. The prosecution says he was killed with karate
blows dealt by the accused-appellant. The defense denies this. It says Santos drunkenly staggered
and fell and hit his head and bled to death.

The trial court believed the prosecution and convicted the police chief while absolving his co-
accused. 1 Rolando Centeno is now before us on appeal of his conviction.

The medical evidence is not disputed. It is accepted that Santos died as a result of internal bleeding
in the brain due to trauma. The victim's head showed various contusions and abrasions but not in
the nape of the neck where the karate blows were allegedly delivered. 2

Besides Dr. Plaridel F. Vidal, the NBI medico-legal officer who testified on the autopsy of Santos,
two important witnesses who gave a first-hand version of how Santos was allegedly killed by the
accused-appellant were presented by the prosecution. These were Dionisio Violago and Eulogio
Villanueva, who were both friends of the victim.

According to Violago, he and Santos, together with their other companions, were in the store of one
Aling Goreng when Patrolman Valeriano Reyes approached Santos and told the young man to come
with him. Santos demurred, protesting that he had done nothing wrong, whereupon Reyes boxed
him in the chest and forcibly brought him to the police station. There Santos loudly objected to his
detention, prompting Police Chief Centeno to say, "Matigas ka yatang talaga," although he relented
later and allowed him to go home. But as Santos was leaving, Centeno had a change of mind and
asked Reyes to bring Santos back. Reyes was holding Santos's arm when Centeno administered
the first karate blow on the nape of Santos's neck that made the victim fall forward on the backrest of
a bench. This was followed by two more karate blows that crumpled him to the cement floor where
he lay prostrate and motionless. On Centeno's order, two policemen then picked up Santos and took
him inside the locker room adjacent to the municipal jail. 3

Villanueva corroborated Violago and said he cried out, "Why are you doing this to my friend?" when
he saw Santos being mauled by Centeno. He also declared that Santos was felled with three karate
blows from Centeno. This witness claimed he got a glass of water and gave it to Santos, who could
not drink it any more as he was already dying then. He felt Santos's pulse but there was none. He
opened Santos's shirt and put his ear to his chest but could hear no heartbeat. He said that the other
persons who witnessed the killing, besides the policemen, were Violago, Romy Salao and Serafin
Punzalan. 4

The theory of the defense was that Santos was so intoxicated that he reeled and fell and hit his head
and suffered the internal brain hemorrhage that killed him. To support this claim, it introduced
Mercedes Bautista, chief forensic chemist of the NBI, who testified that at the time of Santos's death
he had 0.21% of alcohol in his blood. She declared on cross-examination that the effect of such
quantity would vary according to the person's physical condition although there would surely be
emotional instability in every case. 5

The defense conjectured that as a result of his inebriation, Santos must have crashed down and hurt his head, resulting in internal bleeding.
Valeriano Reyes, the other accused, testified that after they had brought Santos to the locker room, they heard a noise ("kalabog")
suggesting that Santos had hit something; and sure enough they found him dying on the floor when they went in to investigate. 6 It is
doubtful though how they could have heard the alleged sound, considering the thick concrete walls of the room and the fact that they were
then some ten meters away. 7

There is also the argument that no external injuries were found on the nape of the neck, where the karate blows were administered although
there were abrasions and contusions elsewhere in the victim's head. As Dr. Vidal explained, however, even if no marks were left on the neck,
karate blows thereon could cause the generalized and extensive bleedings that caused the victim's death. Thus:

Q Will you please explain, if a karate blow delivered on the nape of a

person without necessarily producing contusions or abrasions will
cause brain hemorrhage?

A Depending on the position of the fist that one will apply on the
person. A karate blow will produce inner injury but without any
outside injury especially this portion of the hand, (witness pointing to
the hypothenar) unlike this portion (witness pointing to the knuckles)
and especially when the karate blows delivered with the hypothenar
on a muscular portion of the body like the nape, there will be no
external injuries but the injury is internal. To further explain, I will cite
to you an example. The boxers who use gloves on their hands and
when they will deliver blows on a person, that person will not sustain
external injuries but there is severe injury inside the brain and that
could justify that karate blows will not produce external injuries but
internal injuries. 8

The defense itself submitted that Santos shouted drunkenly within hearing distance of Centeno and
Reyes, "Putang inang mga pulis iyan! Walang kuwenta sa akin iyan!" 9 They claimed to be tolerant and simply
admonished him to go home, but subsequent events showed they were really annoyed by his remarks. This was the motive that prompted
Reyes to drag Santos to the municipal building and led Centeno later to kill him.

We are satisfied that Violago and Villanueva were telling the truth about the killing of their friend
although there were indeed inconsistencies in their statements. These were minor lapses only and
did not impair the essential truthfulness of their narrations. As for the defense, its explanation of the
death of Santos while he was in the custody of the police is hardly plausible and mainly speculative.
Murder cannot be excused on such improbable conjectures
Murder it was indeed with the qualifying circumstance of treachery. There was alevosia because
Santos was suddenly attacked from behind when in his weakened and intoxicated condition, coupled
with the fact that his arm was then being held by Reyes, he could not defend himself. The accused-
appellant had employed means aimed at achieving his purpose without risk to himself from any
defense the victim could have made.

Even assuming there was abuse of superior strength, on which issue we do not have to rule here,
this aggravating circumstance is deemed absorbed by treachery. As for the mitigating circumstances
claimed by the defense, the Court holds that they cannot be allowed. The derogatory statement
made by Santos which so irritated Centeno did not constitute such a grave provocation as to warrant
the lessening of his penalty for reacting as he did in punishing the victim to death. Neither can
Centeno argue now that he had not intended to commit so grave a wrong as the actual killing of
Santos as he knew, or should have known, that the karate chops on the nape of the neck would
have a lethal effect upon the defenseless and drunken victim.

There being no generic aggravating or mitigating circumstances, the term of imprisonment was
correctly fixed at reclusion perpetua, the medium penalty for murder. The civil indemnity is, however,
increased to P30,000.00 consistent with present policy.

It was not only Rolando Santos who was intoxicated when he died at 22 on December 1, 1968.
There was another kind of drunkenness that afflicted the chief of police, who misused his power and
lawlessly took a life.

WHEREFORE, the appealed judgment is AFFIRMED except as to the civil indemnity, which is
increased to P30,000.00. Costs against the accused-appellant. It is so ordered.

Narvasa (Chairman), Gancayco, Griño-Aquino and Medialdea, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 102045. March 17, 1993.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LUZ CARPIO VDA. DE QUIJANO, AND
GERRY CAÑETE y VILLAS, accused-appellants.

SYLLABUS

1. CRIMINAL LAW; CONSPIRACY; MUST BE PROVED BEYOND REASONABLE DOUBT; CASE

AT BAR. — There was no showing that there was a previous agreement between the accused
relating to the commission of the crime. The mere fact that the accused Luz Carpio and accused
Gerry Cañete met at the Luneta Park does not prove that their meeting was prearranged nor was
there any evidence as to what they talked about. The meeting could have been merely casual and
unarranged in which case a reasonable doubt as to conspiracy exists. The circumstance that
accused Luz Carpio opened the door to let accused Gerry Cañete and his unidentified male
companion get inside their house at 12:30 o'clock in the morning of April 23, 1990 is not sufficient to
establish conspiracy. Although proof of agreement may be inferred from the acts and conduct of the
conspirators disclosing a common understanding among them with respect to the commission of the
offense, We have also invariably ruled that like the offense itself, conspiracy must be proved beyond
reasonable doubt. It is a basic principle of constitutional law that the accused shall be presumed
innocent until the contrary is proved beyond reasonable doubt. Lacking such certainty, the trial court
has the duty to render a verdict of acquittal. The same degree of proof necessary to establish the
crime is required to establish criminal conspiracy. Although direct proof is not essential to establish
conspiracy, it must be established by positive and conclusive evidence. And conviction must be
founded on facts, not on mere inferences and presumptions.

2. REMEDIAL LAW; EVIDENCE; CIRCUMSTANTIAL EVIDENCE; MAY BE SUFFICIENT TO

SUSTAIN CONVICTION, REQUISITES. — With respect to accused Gerry Cañete, the evidence
pinpointing responsibility on him is circumstantial. Circumstantial evidence may be characterized as
that evidence which proves a fact or series of facts from which the facts in issue may be established
by inference. To sustain a conviction, Rule 133, Section 5 of the Rules of Court requires that: 1)
there be more than one circumstance; 2) the facts from which the inferences are derived must be
proven; and 3) the combination of all the circumstances is such that it will result in a conviction
beyond reasonable doubt. The requisites must be complied with if circumstantial evidence is to be
the basis for proof beyond reasonable doubt.

3. ID.; ID.; ID.; ID.; ID.; APPLICATION IN CASE AT BAR. — Based on the circumstantial evidence
presented by the prosecution witnesses, there were two men who entered and left the house of the
victim in the morning of April 23, 1990, one of whom was accused Gerry Cañete. While the
established facts do not entirely rule out the possibility that accused Cañete could himself have
inflicted the fatal wounds, the Court cannot base his conviction upon mere conjecture. The accused,
however, had the motive to do away with the victim because of his having an affair with the victim's
wife. After the sound of commotion and physical violence was heard inside the house, Cañete came
out of the house, holding a knife, and with his male companion walked hurriedly away from the
victim's house. He could not be found days after, and his whereabouts were unknown until he was
caught visiting his co-accused in the latter's store days later. It is a well-entrenched rule that "before
conviction can be had upon circumstantial evidence, the circumstances proved should constitute an
unbroken chain which leads to one fair and reasonable conclusion pointing to the defendant, to the
exclusion of all others, as the author of the crime". In this case the circumstantial evidence presented
by the prosecution point to the accused Cañete as having committed the crime charged, and to no
other person.

DECISION

CAMPOS, JR., J p:

The case at bar can very well qualify as an Agatha Christie thriller. A person is killed. Two persons
are prime suspects but the authorities cannot pinpoint who was the murderer. Can the court convict
all the suspects if the evidence fail to establish who stabbed the victim to death? For lack of
evidence, direct or circumstantial, sufficient to prove their guilt beyond reasonable doubt, must all the
accused be given the benefit of presumption of innocence? This is the dilemma which faces the
Court in this case.
This is an appeal from the decision, * dated April 30, 1991, of the Regional Trial Court, National
Capital Judicial Region, Branch 131, Kaloocan City, in Criminal Case No. C-34960, entitled "People
of the Philippines v. Luz Carpio Vda. de Quijano and Gerry Cañete y Villas" finding appellant Luz
Carpio guilty beyond reasonable doubt of the crime of parricide as defined and penalized under
Article 246 of the Revised Penal Code, and appellant Gerry Cañete of Murder as defined and
penalized under Article 248 thereof.

On May 21, 1990, an information for murder was filed by the Assistant City Prosecutor of Kalookan
City against accused-appellants Luz Carpio Vda. de Quijano and Gerry Cañete y Villas for the death
of one Renato Quijano.

On June 6, 1990, the Assistant City Prosecutor filed the following amended information to charge
both accused-appellants of the crime of parricide instead of murder, committed as follows:

"That on or about the 23rd day of April, 1990 in Kaloocan City, Metro-Manila and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually
helping with one another, without any justifiable cause, with deliberate intent to kill, with treachery
and evident premeditation (sic), accused LUZ CARPIO VDA. DE QUIJANO being then legally
married to one RENATO QUIJANO, did then and there wilfully, unlawfully stab with a bladed weapon
said RENATO QUIJANO on the different parts of his body, thereby inflicting upon him serious
physical injuries, which resulted in his death.

Contrary to Law." 1

On June 7, 1990, both accused-appellants, assisted by counsel-de-oficio, pleaded not guilty to the
offense as charged in the amended information. 2

After trial on the merits, the trial court rendered its decision finding both accused-appellants guilty
beyond reasonable doubt of the crime charged. The dispositive portion reads:

"WHEREFORE, the Court finds accused Luz Carpio Vda. De Quijano GUILTY beyond reasonable
doubt for the crime of PARRICIDE and accused Gerry Cañete y Villas GUILTY beyond reasonable
doubt for the crime of MURDER qualified by treachery and sentences each one of them to suffer
RECLUSION PERPETUA; to jointly and severally pay the children of victim Renato Quijano the
amount of Thirty Thousand (P30,000.00) Pesos as death indemnity and to pay the costs.

Considering that both accused are detention prisoners, the period of preventive imprisonment they
may have undergone shall be credited in their favor.

SO ORDERED." 3

From the judgment of conviction, both accused appealed, assigning the following as the errors 4
allegedly committed by the trial court:

THE TRIAL COURT ERRED IN HOLDING THAT CONSPIRACY EXISTED BETWEEN ACCUSED
LUZ CARPIO AND GERRY CAÑETE.

II
THE TRIAL COURT ERRED IN HOLDING THAT TREACHERY WAS EMPLOYED IN THE
COMMISSION OF THE CRIME BY THE ACCUSED.

III

THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF DOMINGA

QUIJANO, RUBEN MADRIAGA AND RICKY JELLY.

IV

THE TRIAL COURT ERRED IN TAKING THE TESTIMONY OF THE SON, RICHARD QUIJANO,
OVER THE OBJECTIONS OF DEFENSE COUNSEL.

THE TRIAL COURT ERRED IN CONVICTING BOTH ACCUSED, LUZ CARPIO AND GERRY
CAÑETE.

The Solicitor General summarized the People's version thus:

"At about 12:30 o'clock in the morning of April 23, 1990, appellant Gerry Cañete and an unidentified
man arrived at the house of appellant Luz Carpio and her husband Renato Quijano in LRT Sawata,
Dagat-Dagatan, Maypajo, Caloocan City. Appellant Luz Carpio, apparently expecting her co-
appellant, readily opened the door for him and his companion who immediately sneaked inside, and
she thereafter closed it. Later at about 1:30 o'clock, Barangay Tanods Ruben Madriaga, Rodolfo
Garcia, Roberto Mercado, and Conrado Oreta, who had been in front of the house, heard "banging
sounds, 'Kalabugan' " coming from the house, prompting them to run to their Barangay outpost to
seek assistance. When they returned to the house at about 2:00 o'clock, the tanods saw appellant
Luz Carpio sitting where they had been sitting before they left and the door of the house open.
Instinctively, the tanods peeped through the open door and saw appellant Luz Carpio's husband,
Renato Quijano, sprawled dead on the floor of the living room. Consequently, the police was notified
and Corporal Paulino T. Baterina arrived to investigate. He observed that the body of the deceased
bore two (2) stab wounds each on both sides of the chest and two (2) more stab wounds on the
abdomen (TSN, August 21, 1990, pp. 4-22). Ricky Jelly, a neighbor, testified at the trial on
November 13, 1990 that "at about 1:30 o'clock in the morning of April 23, 1990, he went to the store
of accused Luz Carpio to buy cigarette . . . when he saw the barangay tanods running . . ., and
fearing that something unusual was happening, hid in the dark . . . and saw after about three (3)
minutes accused Cañete emerging from the house of the victim, wearing pants only and holding a
knife . . ." (Appellants' Brief, p. 4).

Two days before the incident (April 21), the deceased had confided to his sister, Dominga Quijano,
that his wife, appellant Luz Carpio, and appellant Gerry Cañete were having an illicit relationship,
because he saw them kissing (TSN, November 12, 1990, pp. 7-8). The next day (April 22),
appellants met and talked while holding hands at Luneta Park. Appellant Luz Carpio was
accompanied by her son, Richard, while appellant Gerry Cañete was with an unidentified man (Exh.
"H").

Autopsy on the cadaver of Renato Quijano was conducted by Dr. Alberto Reyes, Medico-Legal
Officer of the National Bureau of Investigation, who later submitted an Autopsy Report (Exh. "B")
with his findings (Exh. "B-1")." 5
In convicting both accused, the trial court based its decision on the following circumstantial evidence:

"a) The testimony of Dominga Quijano to the effect that two days before her brother Renato was
killed, the latter confided to her that his wife (accused Carpio) was having an illicit affair with accused
Cañete (TSN, November 12, 1990, page 3);

b) The statement of Richard Quijano, the second eldest son of victim Quijano and accused Carpio,
to the effect that one day before his father was killed, his mother (accused Carpio) and accused
Cañete, in his presence, were holding each others hands somewhere in Luneta (Exh. "H");

c) The testimony of Ruben Madriaga that he in the company of Conrado Oreta, Rodolfo Garcia and
Roberto Mercado have seen the arrival of accused Cañete and his male companion in the house of
the victim one hour before victim Quijano was killed and further have seen accused Carpio opened
their door and allow accused Cañete and his companion to entered (sic) their house during that
unholy hour (TSN, August 21, 1990, pages 19-20);

d) The testimony of Rick Jelly that at past 12:30 in the early morning of April 23, 1990, he had seen
accused Cañete holding a balisong and in the company of one male companion, was walking very
fast and departing from the house of victim Quijano (TSN, October 23, 1990, page 5);

e) The testimony of P/Cpl. Paulino Batarina that immediately before this killing incident took place,
he, thru the policemen assigned at the follow up unit, failed to locate accused Cañete in his
residence (TSN, August 21, 1990, page 8);

f) That accused Cañete was arrested on May 18, 1990 in the store/residence of accused Carpio
(Exh. "K")." 6

The trial court ruled that the prosecution was able to establish that accused Luz Carpio and Gerry
Cañete conspired together in killing the victim.

We do not agree.

There was no showing that there was a previous agreement between the accused relating to the
commission of the crime. The mere fact that the accused Luz Carpio and accused Gerry Cañete met
at the Luneta Park does not prove that their meeting was prearranged nor was there any evidence
as to what they talked about. The meeting could have been merely casual and unarranged in which
case a reasonable doubt as to conspiracy exists. 7 The circumstance that accused Luz Carpio
opened the door to let accused Gerry Cañete and his unidentified male companion get inside their
house at 12:30 o'clock in the morning of April 23, 1990 is not sufficient to establish conspiracy.
Although proof of agreement may be inferred from the acts and conduct of the conspirators
disclosing a common understanding among them with respect to the commission of the offense, 8
We have also invariably ruled that like the offense itself, conspiracy must be proved beyond
reasonable doubt. 9

It is a basic principle of constitutional law that the accused shall be presumed innocent until the
contrary is proved beyond reasonable doubt. Lacking such certainty, the trial court has the duty to
render a verdict of acquittal. 10 The same degree of proof necessary to establish the crime is
required to establish criminal conspiracy. 11 Although direct proof is not essential to establish
conspiracy, it must be established by positive and conclusive evidence. And conviction must be
founded on facts, not on mere inferences and presumptions. 12
Since the conviction of accused Luz Carpio was based on the presence of conspiracy which as
stated earlier has not been proven beyond reasonable doubt and there being no other evidence
linking her to the commission of the crime, the conviction of accused Luz Carpio of the crime of
parricide must be reversed.

With respect to accused Gerry Cañete, the evidence pinpointing responsibility on him is
circumstantial. Circumstantial evidence may be characterized as that evidence which proves a fact
or series of facts from which the facts in issue may be established by inference. To sustain a
conviction, Rule 133, Section 5 of the Rules of Court requires that: 1) there be more than one
circumstance; 2) the facts from which the inferences are derived must be proven; and 3) the
combination of all the circumstances is such that it will result in a conviction beyond reasonable
doubt. The requisites must be complied with if circumstantial evidence is to be the basis for proof
beyond reasonable doubt. 13

The following series of events constitutes sufficient circumstantial evidence on the basis of which
guilt of the accused Cañete may be established:

a) that he and an unidentified male companion were seen entering the victim's house by prosecution
witness Ruben Madriaga and his co-barangay officers at midnight of April 23, 1990 and that accused
Carpio, wife of the victim, opened the door and let them inside the house;

b) that after the lapse of one hour, Ruben Madriaga and his co-barangay officers heard banging
sounds (Kalabugan) inside the house of the victim;

c) that he and an unidentified male companion were seen leaving the house of the victim by
prosecution witness Rick Jelly at 1:30 o'clock in the morning of April 23, 1990 holding a knife and
walking very briskly away from the house of the victim;

d) that five minutes after accused Cañete and an unidentified male companion left, Rick Jelly heard
screaming and crying and found out that victim Renato Quijano was already dead; he died of stab
wounds inflicted with a knife in the front part of his body;

e) that accused Cañete's whereabouts could not be found when police looked for him;

f) that he was finally arrested on May 18, 1990 in the store of accused Carpio;

g) that accused Cañete and Carpio were having an intimate affair.

Based on the circumstantial evidence presented by the prosecution witnesses, there were two men
who entered and left the house of the victim in the morning of April 23, 1990, one of whom was
accused Gerry Cañete. While the established facts do not entirely rule out the possibility that
accused Cañete could himself have inflicted the fatal wounds, the Court cannot base his conviction
upon mere conjecture. The accused, however, had the motive to do away with the victim because of
his having an affair with the victim's wife. After the sound of commotion and physical violence was
heard inside the house, Cañete came out of the house, holding a knife, and with his male companion
walked hurriedly away from the victim's house. He could not be found days after, and his
whereabouts were unknown until he was caught visiting his co-accused in the latter's store 25 days
later. It is a well-entrenched rule that "before conviction can be had upon circumstantial evidence,
the circumstances proved should constitute an unbroken chain which leads to one fair and
reasonable conclusion pointing to the defendant, to the exclusion of all others, as the author of the
crime". 14 In this case the circumstantial evidence presented by the prosecution point to the accused
Cañete as having committed the crime charged, and to no other person.

While the fact of death has been established by the production of the dead body, the prosecution
has established an unbroken chain of circumstances, which make Us conclude reasonably and
positively that the accused Cañete is indeed the guilty person.

The facts as established dispel any doubt regarding the guilt of the accused Gerry Cañete for the
death of Vicente Quijano committed at the latter's residence. There was, however, no evidence that
the killing was committed with treachery or evident premeditation that would qualify the crime to
murder.

WHEREFORE, for reasons indicated, We find the accused GERRY CAÑETE guilty beyond
reasonable doubt of the crime of Homicide and sentences him to a penalty of Reclusion Temporal.
Applying the Indeterminate Sentence Law, the accused is hereby sentenced to a penalty of
imprisonment the minimum of which is eight (8) years and one (1) day of prision mayor and a
maximum of fourteen (14) years, eight (8) months and one (1) day of Reclusion Temporal, and to
indemnify the heirs of the victim Renato Quijano in the amount of P50,000.00. For failure of the
prosecution to establish the guilt of LUZ CARPIO VDA. DE QUIJANO for the crime of parricide, the
decision with respect to her is REVERSED, said accused is ACQUITTED of the crime charged and
is ordered immediately released unless she is being held for other legal causes.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 183202               June 2, 2014

ALBERTO ALMOJUELA y VILLANUEVA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BRION, J.:

Before this Court is a petition for review on certiorari  under Rule 45, seeking the reversal of the
1

Court of Appeals' (CA) decision  dated March 17, 2008 and resolution  dated June 2, 2008 in CA-
2 3

G.R. CR. No. 29268. These assailed rulings affirmed with modification the decision  of the Regional
4

Trial Court (RTC) of Manila, dated January 27, 2005 in Criminal Case No. 93-129891, finding
petitioner Alberto Almojuela y Villanueva (Almojuela) guilty beyond reasonable doubt of the crime of
homicide.
 Factual Antecedents

This case stemmed from two informations for attempted homicide and homicide filed with the RTC of
Manila, Branch 39, against accused Almojuela.  The trial court dismissed the charge for attempted
5

homicide for insufficiency of evidence.  The information for homicide is quoted below:
6

That on or about November 21, 1993, in the City of Manila, Philippines, the said accused conspiring
and confederating with one whose true name, identity and present whereabouts are (sic)still
unknown and mutually helping each other, did then and there willfully, unlawfully, and feloniously
with intent to kill, attack, assault and use personal violence upon one Ricardo Quejong y Bello by
then and there stabbing him with a bladed weapon twice, hitting him on the left side of his back,
thereby inflicting upon the latter mortal wounds which were the direct and immediate cause of his
death thereafter.

Contrary to law. 7

During arraignment, Almojuela entered a plea of "not guilty". Pre-trial conference was conducted
then trial on the merits followed.  Two different versions of the facts surrounding the victim Ricardo
8

Quejong’s (Quejong) death surfaced.

The Prosecution’s Version

Sanito Masula (Masula) narrated the prosecution’s account of the events which transpired on
November 21, 1993, the crime’s date. 9

At around 8:00 in the evening, Masula, Quejong, Jose Buenhijo Paz (Paz), along with some others,
were on their way home from a party when they encountered Almojuela, who was having a drinking
spree with his friends in front of his house.

Almojuela called on Paz and shouted, "Matagal ka nang namumuro sa akin," to which, Paz replied,
"Ganoon ba? What do you want?" Immediately, a fight ensued between the two. In the course of the
fight, Almojuela stabbed Paz in his right arm, causing the latter to retreat. It was at this point that
Quejong joined in the fight and grappled with Almojuela to the ground. A certain Dale Abarquez
(Kagawad Abarquez) at that point, came to pacify the parties. But the two men did not heed the
kagawad’s order and continued wrestling with each other. This prompted Kagawad Abarquez to hit
Quejong twice in his back and to fire two warning shots in the air. On hearing the gunshots, Quejong
and his group immediately ran away. 10

Masula testified that he did not actually see Almojuela stab Quejong when they were grappling on
the ground. However, he also said that he noticed blood on Quejong’s back.  On Quejong’s way
11

home, their friends saw that he had stab wounds in his back. They immediately rushed him to the
University of Santo Tomas Hospital where he died approximately two to three hours from
admission. 12

The Defense’s Version

The evidence for the defense showed that on November 21, 1993, Almojuela was cooking pulutan
for his drinking buddies Felicisimo Venezuela and Winfred Evangelista, when his daughter told him
that smoke was entering their house. He checked the report and saw the group of Paz, Quejong,
Masula, and others, smoking marijuana. Almojuela confronted the group, to which Paz responded by
cursing him. Despite this response, Almojuela simply went inside his house and continued with his
cooking. 13

When Paz’s group was already high on drugs, they called on Almojuela and challenged him to a
fistfight, which he accepted. The fight only ended when Almojuela’s neighbors came to pacify them.
But as Almojuela was about to enter his house, Quejong pulled him, leading to another fight. They
were grappling on the ground when Kagawad Abarquez arrived to intervene to stop the fight. No one
heeded the kagawad; hence, he fired two warning shots in the air. The shots forced Quejong and his
group to scamper away. 14

At around 10:30 in the evening of the same day, policemen came to Almojuela’s house. They did not
find him because he hid at the kamoteng kahoy thicket near his house. He did not know though that
Quejong sustained any serious injury since they only engaged in a fistfight; no bladed weapon was
used. He voluntarily surrendered himself, however, when he learned from Kagawad Abarquez that
Quejong had died from stab wounds. He surrendered to SPO1 Danilo Vidad through the assistance
of a certain SPO4 Soriano, the following day. 15

The RTC’s Ruling

In its decision dated January 27, 2005, the RTC found Almojuela guilty beyond reasonable doubt of
homicide, and sentenced him to suffer the indeterminate penalty of six (6) years and one (1) day as
minimum, to fourteen (14) years, eight (8) months and one (1) day as maximum. It also ordered him
to pay the following indemnities to the heirs of Quejong: ₱50,000.00 as civil indemnity; ₱50,000.00
as moral damages; ₱832,000.00 for loss of earning capacity; ₱35,000.00 for funeral expenses; and
₱10,000.00 for litigation expenses.

The RTC gave great weight to Masula’s testimony. Although Masula did not actually see Almojuela
use a knife on Quejong, strong evidence still existed to support his conviction.

Only three persons were actually involved in the fight – Almojuela, Quejong and Paz. Since only
Almojuela was armed with a knife and in fact he wounded Paz in his right arm, it was reasonable to
conclude that he also stabbed Quejong.  The RTC noted that Paz could not have stabbed Quejong
16

as he himself was wounded.

The RTC did not give credence to the testimony of Winfred Evangelista that Almojuela never held a
bladed weapon during the fight. This statement was inconsistent with his earlier claim that Almojuela
tried to take a knife away from Quejong’s hand. The RTC concluded that Evangelista lied in open
court.
17

The CA’s Ruling

The CA affirmed Almojuela’s conviction but reduced the RTC’s imposed penalty to six (6) years and
eight (8) months of prision mayor as minimum, to twelve (12) years and one (1) day of reclusion
temporal as maximum. 18

The CA appreciated the mitigating circumstance of voluntary surrender; and noted that, although
Almojuela hid when policemen first visited him in his home, he still voluntarily surrendered to the
authorities the day after the incident.
19
The CA also gave evidentiary weight to the attendant circumstantial evidence. It noted that the
pieces of circumstantial evidence, taken together, form an unbroken chain leading to the reasonable
conclusion that Almojuela committed the crime charged. The CA reasoned out:

As established by the testimonies, it is apparent that only Jose Buenhijo Paz, victim Ricardo
Quejong and accused ALMOJUELA were involved in the brawl and of the three of them it was
accused ALMOJUELA who was likely to have stabbed the victim. He was the one who had the
motive since he held a grudge against Jose Buenhijo Paz and he was the one who confronted the
group of the victim. It was accused ALMOJUELA and the victim Ricardo Quejong who wrestled with
each other, thus only accused ALMOJUELA could have inflicted the fatal injury to the (sic) Ricardo
Quejong. It was also highly unlikely that Jose Buenhijo Paz had inflicted the injury since he himself
was injured by the knife that stabbed the victim Ricardo Quejong. It was in fact Jose Buenhijo Paz
who was being aided by the victim Ricardo Quejong against the assault of accused ALMOJUELA. 20

The Petition

In his Rule 45 petition before us, Almojuela imputes error on the CA for finding that the prosecution’s
evidence was sufficient to prove his guilt beyond reasonable doubt.

He maintains that the circumstantial evidence is not strong enough to identify him as the crime’s
perpetrator. Even assuming that he did stab Quejong, he submits that the CA failed to appreciate the
mitigating circumstance of incomplete self-defense. Paz and Quejong ganged up on him, forcing him
to repel their unlawful aggression with a bladed weapon. 21

On the other hand, respondent People of the Philippines, through the Office of the Solicitor General
(OSG), argues that only questions of law may be reviewed in a Rule 45 petition, and that the findings
of fact by the trial court, if affirmed by the CA, are generally conclusive and binding on the Supreme
Court.

The OSG also maintains that the circumstantial evidence is sufficient to support Almojuela’s
conviction. Also, the mitigating circumstance of incomplete self-defense should not be appreciated
since it was Almojuela who started the unlawful aggression. 22

The Court’s Ruling

We DENY the petition.

Circumstantial evidence as basis for conviction

We find it clear, based on the records and the evidence adduced by both parties, that no direct
evidence points to Almojuela as the one who stabbed Quejong in the night of November 21, 1993.

Lest this statement be misunderstood, a finding of guilt is still possible despite the absence of direct
evidence. Conviction based on circumstantial evidence may result if sufficient circumstances, proven
and taken together, create an unbroken chain leading to the reasonable conclusion that the
accused, to the exclusion of all others, was the author of the crime. 23

Circumstantial evidence may be characterized as that evidence that proves a fact or series of facts
from which the facts in issue may be established by inference.  Under the Revised Rules on
24

Evidence, a conviction based on circumstantial evidence may be sustained if the following requisites
are all present:
 a. There is more than one circumstance;

b. The facts from which the inferences are derived are proven; and

c. The combination of all the circumstances is such as to produce a conviction beyond

reasonable doubt. 25

In People v. Galvez,  we laid down the basic guidelines that judges must observe when faced with
26

merely circumstantial evidence in deciding criminal cases. The probative value of such
circumstantial evidence must be distilled using the following:

a. Circumstantial evidence should be acted upon with caution;

b. All the essential facts must be consistent with the hypothesis of guilt;

c. The facts must exclude every other theory but that of the guilt of the accused; and

d. The facts must establish with certainty the guilt of the accused so as to convince beyond
reasonable doubt that the accused was the perpetrator of the offense. The peculiarity of
circumstantial evidence is that the series of events pointing to the commission of a felony is
appreciated not singly but collectively. The guilt of the accused cannot be deduced from
scrutinizing just one(1) particular piece of evidence.

They are like puzzle pieces which when put together reveal a convincing picture pointing to the
conclusion that the accused is the author of the crime.27

In the present case, the RTC and the CA relied on the following circumstances in concluding that
Almojuela was the perpetrator of the crime:

1. Almojuela orally provoked Paz when the latter and his group passed by Almojuela’s
house;

2. A fight ensued between them and Almojuela wounded Paz’s right arm with a knife;

3. The wounded Paz retreated and Quejong next fought with Almojuela;

4. During Quejong and Almojuela’s fight, they grappled and wrestled with each other on the
ground;

5. Quejong and Almojuela were only pacified when Kagawad Abarquez came and fired two
gunshots in the air;

6. Masula did not see Almojuela stab Quejong but he saw blood in Quejong’s back during
the fight;

7. Quejong’s group scampered away after the gunshots. On Quejong’s way home, one of his
friends noticed that he had stab wounds in his back;

8. Quejong was immediately rushed to the hospital where he expired a few hours after; and
 9. Almojuela hid when policemen came to his home to investigate.

The nine circumstances, individually, are not sufficient to support Almojuela’s conviction. But taken
together, they constitute an unbroken chain leading to the reasonable conclusion that Almojuela is
guilty of the crime of homicide.

First,Almojuela was the one whoprovoked Paz and his group to a fight. His unlawful aggression was
the starting cause of the events which led to Quejong’s death.

Second, Masula categorically testified that only Almojuela was armed with a knife during the fight. In
fact, he hit Paz in his right arm, forcing the latter to retreat.

Third, only three persons actually were involved in the fight: Almojuela, Paz and Quejong. Paz was
wounded, forcing him to retreat. This fact renders it improbable that Paz was the one who stabbed
Quejong. Thus, Almojuela alone was the perpetrator.

Fourth, although Masula admitted that he did not actually see Almojuela stab Quejong, he testified
that he saw blood on Quejong’s back during his fight with Almojuela.

Fifth, after Quejong and his group scurried away from the scene, his friend noticed that he had stab
wounds in his back. Almojuela did not present any evidence that Quejong figured in any other fight
with another person after the fight with Almojuela. In fact, Quejong was immediately rushed to the
hospital.

Sixth, Almojuela hidin the kamoteng kahoy thicket near his house when policemen visited him for
investigation. We have repeatedly held that flight is an indication of guilt. The flight of an accused, in
the absence of a credible explanation, is a circumstance from which guilt may be inferred. An
innocent person will normally grasp the first available opportunity to defend himself and assert his
innocence. 28

These proven circumstances lead to the reasonable conclusion that Almojuela stabbed Quejong
during their fight, causing the latter’s subsequent death.

The mitigating circumstances of incomplete self-defense and voluntary surrender

Almojuela argues that even if he did stab Quejong, the mitigating circumstance of incomplete self-
defense should be appreciated in his favor. An incomplete self-defense is appreciated when:

a. there is unlawful aggression on the part of the victim;

b. the means employed to prevent or repel the unlawful aggression is not reasonably
necessary; and

c. there is lack of provocation on the part of the person defending himself.

There can be no self-defense, whether complete or incomplete, unless the victim had committed
unlawful aggression against the person who resorted to self-defense.  This mitigating circumstance
29

is inapplicable in the present case because the unlawful aggression did not start from the victim
Quejong but from Almojuela. The prosecution proved that it was Almojuela who first challenged Paz
and his group to a fight. Almojuela came prepared to fight and was in fact armed with a bladed
weapon.
Moreover, the third element is also absent since there is no lack of sufficient provocation on
Almojuela’s part as shown by his confrontational stance right from the start.

We affirm, however, the CA’s ruling that the mitigating circumstance of voluntary surrender should
be appreciated in favor of Almojuela. For voluntary surrender to apply, the following requisites must
concur:

a. the offender had not been actually arrested;

b. the offender surrendered himself to a person in authority or the latter’s agent; and

c. the surrender was voluntary.

The essence of voluntary surrender is spontaneity and the intent of the accused to submit himself to
the authorities either because he acknowledged his guilt or he wished to save the authorities the
trouble and expense that may be incurred for his search and capture. 30

Although Almojuela hid when policemen first visited him in his home, it was also duly proven that
soon after he learned of Quejong’s death, Almojuela voluntarily gave himself up to a certain SPO4
Soriano who then turned him over to SPO1 Danilo Vidad of the Western Police District.  Under these
31

facts, all the elements of the mitigating circumstance of voluntary surrender are present in this case.

The awarded indemnities

We note that the RTC awarded ₱35,000.00 as funeral expenses to the heirs of Quejong; this amount
was affirmed by the CA.  However, since no documentary evidence was presented to support this
1âwphi1

claim, it cannot be awarded. Nonetheless, an award of₱25,000.00 as temperate damages in

homicide or murder cases is proper when no evidence of the said expenses is presented during trial.
Under Article 2224 of the Civil Code, temperate damages may be recovered since it cannot be
denied that the heirs of the victim suffered pecuniary loss, though the exact amount was not
proven. 32

We also -delete the award of litigation expenses for lack of actual proof. We additionally impose a
6% interest on all the monetary awards for damages to be reckoned from the date of finality of this
decision until fully paid.

As a final note, the general rule is that factual findings of the trial court, especially when affirmed by
the CA, deserve great weight and respect. 33

These factual findings should not be disturbed on appeal, unless these are facts of weight and
substance that were overlooked or misinterpreted and that would materially affect the disposition of
the case.  We have carefully scrutinized the records and we find no reason to deviate from the RTC
34

and CA's findings. We see no indication that the trial court, whose findings the CA affirmed
-overlooked, misunderstood or misapplied the surrounding facts and circumstances of the case.
Thus, we defer to the trial court on the findings of facts as it was in the best position to assess and
determine the credibility of the witnesses presented by both parties. 35

WHEREFORE, premises considered, we hereby DENY the petition and AFFIRM the March 17, 2008
decision and June 2, 2008 resolution of the Court of Appeals in CA-G.R. CR. No. 29268 with the
following MODIFICATIONS: (a) the awarded funeral and litigation expenses are deleted; (b) the
petitioner is ordered to pay the victim's heirs ₱25,000.00 as temperate damages in lieu of actual
damages; and (c) he is further ordered to pay the victim's heirs interest on all damages awarded at
the legal rate of six percent (6%) per annum from the date of finality of this judgment until fully paid. 36

SO ORDERED.

Republic of the Philippines

SUPREME COURT

SECOND DIVISION

G.R. No. 126858 September 16, 2005

JOSE U. ONG and NELLY M. ONG, Petitioners,

vs.
SANDIGANBAYAN and OFFICE OF THE OMBUDSMAN, Respondent.

DECISION

Tinga, J.:

This Petition for Certiorari,1 dated December 13, 1996 seeks the nullification of the Resolutions of
the Sandiganbayan dated August 18, 19942 and October 22, 1996.3 The first
assailed Resolution denied petitioners’ motion to dismiss the petition for forfeiture filed against them,
while the second questioned Resolution denied their motion for reconsideration.

The antecedents are as follows:

Congressman Bonifacio H. Gillego executed a Complaint-Affidavit4 on February 4, 1992, claiming

that petitioner Jose U. Ong, then Commissioner of the Bureau of Internal Revenue (BIR), has
amassed properties worth disproportionately more than his lawful income. The complaint pertinently
states:

In his Statement of Assets and Liabilities as of December 31, 1989 (Annex "A"), Commissioner Jose
U. Ong declared ₱750,000.00 as his cash on hand and in banks. Within a short period thereafter, he
was able to acquire prime real estate properties mostly in the millionaires choice areas in Alabang,
Muntinglupa, Metro Manila costing millions of pesos as follows:

1. A house and lot in Alabang bought on October 9, 1990 for ₱5,500,000.00, now titled in the name
of Jose U. Ong under Transfer Certificate of Title No. 172168, Registry of Deeds for Makati
(Annexes "B" & "C");

2. Another lot in Alabang bought for ₱5,700,000.00, now titled in the name of Jose U. Ong and Nelly
M. Ong under Transfer Certificate of Title No. 173901. Registered on January 25, 1991 in the
Registry of Deeds for Makati (Annex "D");
3. Still another lot in Alabang bought for ₱4,675,000.00 on January 16, 1991, now titled in the name
of spouses Jose U. Ong and Nelly Mercado Ong under Transfer Certificate of Title No. 173760 in the
Registry of Deeds for Makati (Annexes "E" and "F");

4. Again, another lot in Alabang bought on December 3, 1990 for ₱5,055,000.00, now titled in the
name of the Children of Commissioner Ong and his son-in-law under transfer Certificate of Title No.
173386 in the Registry of Deeds for Makati (Annex "G" and "H");

5. Again, a lot in Makati bought for ₱832,000.00 on July 1, 1990, now titled in the name of the
Daughter of Commissioner Ong and his son-in-law under transfer certificate of title No. 171210 in
the Registry of Deeds of Makati (Annex "I" & "J").

The above documented purchases of Commissioner Ong alone which are worth millions of pesos
are obviously disproportionate to his income of just a little more than ₱200,000.00 per annum.5

Ong submitted an explanation and analysis of fund sourcing, reporting his net worth covering the
calendar years 1989 to 1991 and showing his sources and uses of funds, the sources of the
increase in his net worth and his net worth as of December 13, 1991.6

The Director* of the Fact-Finding and Intelligence Bureau of the Office of the Ombudsman
(Ombudsman) ordered the conduct of a pre-charge investigation on the matter. A Fact-Finding
Report7 was promptly submitted* with the following recommendation:

1. Forfeiture Proceedings be instituted against the properties of Jose U. Ong which he illegitimately
acquired in just a span of two (2) years as Commissioner of the Bureau of Internal Revenue. Such
properties are briefly specified as follows:

a) House and lot in Ayala Alabang bought on October 9, 1990 for ₱5.5 million under TCT No.
172168 of the Registry of Deeds for Makati, Metro Manila;

b) Lot in Ayala Alabang bought on January 23, 1991 for ₱5.5 million under TCT No. 173901;

c) Lot in Ayala Alabang bought on January 16, 1991 for ₱4,675,000.00 under TCT No. 173760;

d) Lot in Ayala Alabang bought on December 3, 1990 for ₱5,055,000.00 under TCT No. 173386; and

e) Condominium Unit 804, located at the eight floor of the Asian Mansion, bought for ₱744,585.00
under CCT No. 20735 of the Registry of Deeds for Makati, Metro Manila.8

Finding that a preliminary inquiry under Sec. 2 of Republic Act No. 1379 (RA 1379) should be
conducted, Ong was directed to submit his counter-affidavit and other controverting evidence in
the Order9 dated November 18, 1992. For this purpose, Ong was furnished copies of
Gillego’s Complaint-Affidavit and the Fact-Finding Report, with annexes and supporting documents.

Ong filed a Counter-Affidavit10 dated December 21, 1992, submitting his Statement of Assets and
Liabilities for the years 1988-1990, income tax return for 1988, bank certificate showing that he
obtained a loan from Allied Banking Corporation (Allied Bank), certificate from SGV & Co. (SGV)
showing that he received retirement benefits from the latter, a document entitled Acknowledgement
of Trust showing that he acquired one of the questioned assets for his brother-in-law, and other
documents explaining the sources of funds with which he acquired the questioned assets.
In view of Ong’s arguments, the Ombudsman issued another Order11 dated February 11, 1993, the
pertinent portions of which state:

Results of the subpoena duces tecum ad testificandum issued to Allied Banking Corporation, Sycip,
Gorres, Velayo & Co., including the BIR insofar as it pertains to the production of the documents that
respondents claimed in justification of the sources of his funding/income, proved negative since
Allied Bank could not produce documents that would show availment of the loan, nor could SGV
itemize the documents/vouchers that would, indeed signify the grant and receipt of the claimed
retirement benefits, as well as the BIR insofar as it pertains on respondent’s filed income tax returns
for the years 1987, 1988, 1989, 1990 and 1991.

Such being the case, and in line with respondent’s defense as claimed in his counter-affidavit that all
his acquisitions were from legitimate and valid sources based from his (respondent’s) salary and
other sources of income, and he being the recipient thereof, copies of which he is entitled as a
matter of right and party recipient on the claimed loan and retirement benefits, respondent Jose U.
Ong, is hereby directed to submit in writing within a period of fifteen (15) days from receipt of this
ORDER, the following, namely:--

a) all documents in his possession relevant to the approval by the Allied Banking Corporation on the
P6.5 million term loan including documents in availment of the loan such as the execution of
promissory note/s, execution of real/chattel mortgage/s and the fact of its registration with the
Register of Deeds, credit agreements, receipt of payment on amortization of the loan, if any, and
such other pertinent documents that will show existence and availment of the loan granted;

b) All documents in his possession that he was indeed granted by SGV and Co. ₱7.8 million as
retirement benefits including such additional benefits as claimed as evidenced by vouchers,
accounting records, computation of benefits, that would signify fact of receipt of the claimed
retirement benefits;

c) All documents showing the money market placements such as but not limited to the (a)
confirmation sale on the placements and (b) confirmation of the purchase on the placements;

d) Income tax returns as filed in the Bureau of Internal Revenue for the years, 1987, 1988, 1989,
1990 and 1991.

Failure of the respondent to comply with this ORDER within the period hereinabove prescribed shall
be deemed a waiver on his part to submit the required controverting evidence and that he has no
evidence on hand to show proof on the existence of the claimed defenses as above set forth and
that this case shall be considered for resolution without further notice.12

Instead of complying with the Order, Ong filed a Motion,13 dated February 17, 1993 for its recall, the
voluntary inhibition of the handling investigators, and reassignment of the case. Ong objected to the
proceedings taken thus far, claiming that he was not notified of the subpoenas issued to SGV and
Allied Bank requiring them to substantiate Ong’s claims. The Order allegedly violates his right to due
process and to be presumed innocent because it requires him to produce evidence to exculpate
himself.

A Resolution14 dated May 31, 1993 was thereafter issued finding that Ong "miserably failed to
substantiate his claim that the sources of financing his said acquisition came from his other lawful
income, taking into account his annual salary of ₱200,000.00 more or less and his cash standing at
the time, even without considering his normal expenses befitting his stature and position in the
Government, as well as his acquisition of movable properties for the calendar year[s] 1989 to 1991,
totaling ₱930,000.00," and concluding "that the properties acquired by him in a matter of ELEVEN
(11) MONTHS from October, 1990 to September, 1991, during his incumbency as Commissioner of
the Bureau of Internal Revenue, are manifestly and grossly disproportionate to his salary as a public
official and his other lawful income."15

The Resolution directed the filing by the Ombudsman, in collaboration with the Office of the Solicitor
General (OSG), of a petition for recovery of ill-gotten/unexplained wealth under RA 1379, in relation
to RAs 3019 and 6770, against Ong and all other persons concerned.

The Resolution was reviewed by the Office of the Special Prosecutor (Special Prosecutor) which
concurred with the findings and recommendation of the Ombudsman.16

A Petition17 dated November 15, 1993 for forfeiture of unlawfully acquired property was accordingly
filed before the Sandiganbayan by the Republic, through the Special Prosecutor and the Deputy
Ombudsman for Luzon,18 against Ong and his wife, petitioner Nelly Ong, and docketed as Civil Case
No. 0160.

The Petition alleged that the total value of the questioned assets is ₱21,474,585.00 which is grossly
disproportionate to Ong’s lawful income from his public employment and other sources amounting to
₱1,060,412.50, considering that Nelly Ong has no visible means of income. This circumstance
allegedly gave rise to the presumption under Sec. 2 of RA 1379 that the questioned properties were
unlawfully acquired.

In its Order19 dated November 17, 1993, the Sandiganbayan directed the issuance of a writ of
preliminary attachment against the properties of petitioners. The writ, issued on November 18, 1993,
was duly served and implemented as shown in the Sheriff’s Return dated December 1, 1993.20

Petitioners Jose and Nelly Ong filed an Answer21 dated January 27, 1994, denying that their lawful
income is grossly disproportionate to the cost of the real properties they acquired during the
incumbency of Ong as BIR Commissioner. According to them, the Special Prosecutor and the
Ombudsman intentionally failed to consider the retirement and separation pay Ong received from
SGV and other lawful sources of funds used in the acquisition of the questioned properties.

They presented several affirmative defenses, such as the alleged deprivation of their right to due
process considering that no preliminary investigation was conducted as regards Nelly Ong, and the
nullity of the proceedings before the Ombudsman because the latter, who acted both as investigator
and adjudicator in the determination of the existence of probable cause for the filing of the case, will
also prosecute the same. Moreover, the Petition also allegedly failed to state a cause of action
because RA 1379 is unconstitutional as it is vague and does not sufficiently define ill-gotten wealth
and how it can be determined in violation of the non-delegation of legislative power provision, and
insofar as it disregards the presumption of innocence by requiring them to show cause why the
properties in question should not be declared property of the state. They also objected to the fact
that they were not notified of the Resolution directing the filing of the case and were thereby
prevented from filing a motion for reconsideration.

A hearing of petitioners’ affirmative defenses was conducted as in a motion to dismiss, after which
the Sandiganbayan issued the assailed Resolution dated August 18, 1994. The Sandiganbayan
ruled that a petition for forfeiture is an action in rem, civil in character. As such, the participation of
Nelly Ong in the inquiry to determine whether the properties acquired by her husband are manifestly
disproportionate to his salary and other lawful income is not a mandatory requirement. Neither is the
conduct of a preliminary investigation as regards Nelly Ong required. Further, Nelly Ong was only
impleaded in the petition as a formal party.
The court held that the power of the Ombudsman to investigate and prosecute unexplained wealth
cases is founded on RAs 1379, 3019 and 6770. The Sandiganbayan, moreover, declared that
the Petition sufficiently states a cause of action.

Petitioners filed a Motion for Reconsideration22 dated September 11, 1994, averring that although a
forfeiture proceeding is technically a civil action, it is in substance a criminal proceeding as forfeiture
is deemed a penalty for the violation of RA 1379. Hence, Nelly Ong is entitled to a preliminary
investigation. To proceed against her conjugal share of the questioned assets without giving her the
opportunity to present her side in a preliminary investigation violates her right to due process.

Petitioners reiterated their argument that they were not notified of the Resolution directing the filing
of the petition for forfeiture and were consequently deprived of their right to file a motion for
reconsideration under RA 6770 and pertinent rules.

The Sandiganbayan issued the second assailed Resolution dated October 22, 1996, directing the
Ombudsman to furnish petitioners with a copy of the Resolution to file the forfeiture case and giving
them a period of five (5) days from receipt of the Resolution within which to file a motion for
reconsideration. The Ombudsman was given a period of sixty (60) days to resolve the motion for
reconsideration and to report to the court the action it has taken thereon.

Instead of awaiting the Ombudsman’s compliance with the Resolution, petitioners filed the

instant Petition for Certiorari contending that the Sandiganbayan gravely abused its discretion in
ruling that Nelly Ong is not entitled to preliminary investigation; failing to annul the proceedings taken
before the Ombudsman despite the alleged bias and prejudice exhibited by the latter and the
disqualification of the Ombudsman from acting both as prosecutor and judge in the determination of
probable cause against petitioners; and failing to declare RA 1379 unconstitutional.

The OSG filed a Comment23 dated December 10, 1997, averring that the reason why Nelly Ong was
not made a party to the proceedings before the Ombudsman is because her husband never
mentioned any specific property acquired solely and exclusively by her. What he stated was that all
the acquisitions were through his own efforts. Hence, the Sandiganbayan correctly held that Nelly
Ong is a mere formal party.

Furthermore, the presumption of innocence clause of the Constitution refers to criminal prosecutions
and not to forfeiture proceedings which are civil actions in rem. The Constitution is likewise not
violated by RA 1379 because statutes which declare that as a matter of law a particular inference
follows from the proof of a particular fact, one fact becoming prima facie evidence of another, are not
necessarily invalid, the effect of the presumption being merely to shift the burden of proof upon the
adverse party.

Neither is the constitutional authority of the Supreme Court to "promulgate rules concerning the
protection and enforcement of constitutional rights, pleading, practice and procedure in all courts"
violated by RA 1379 merely by authorizing the OSG to grant immunity from criminal prosecution to
any person who testifies to the unlawful manner in which a respondent has acquired any property.
There is no showing that the OSG or the Ombudsman is about to grant immunity to anybody under
RA 1379. At any rate, the power to grant immunity in exchange for testimony has allegedly been
upheld by the Court.

The OSG further argued that the Ombudsman did not exhibit any bias and partiality against Ong. It
considered his claim that he received retirement benefits from SGV, obtained a loan from Allied
Bank, and had high yielding money market placements, although it found that these claims were
unsubstantiated based on its investigation. Moreover, the sending of subpoenas to SGV and Allied
Bank was in accordance with the powers of the Ombudsman under RA 6770.

The OSG likewise alleged that RA 1379 is not vague as it defines legitimately acquired property and
specifies that the acquisition of property out of proportion to the legitimate income of a public officer
is proscribed.

Petitioners filed a Reply to Comment24 dated April 1, 1998, reiterating their arguments.

In the Resolution25 dated April 14, 1999, the Court gave due course to the petition and required the
parties to submit their respective memoranda. Accordingly, petitioners filed
their Memorandum26 dated June 29, 1999,

while the OSG submitted its Memorandum27 dated September 27, 1999. The Special Prosecutor
submitted its own Memorandum28 dated June 20, 1999.

We deny the petition.

Petitioners contend that Nelly Ong was denied due process inasmuch as no separate notices or
subpoena were sent to her during the preliminary investigation conducted by the Ombudsman. They
aver that Nelly Ong is entitled to a preliminary investigation because a forfeiture proceeding is
criminal in nature.

On the other hand, the OSG and the Ombudsman contend that Nelly Ong is not entitled to
preliminary investigation, first, because forfeiture proceedings under RA 1379 are in the nature of
civil actions in rem and preliminary investigation is not required; second, because even assuming
that the proceeding is penal in character, the right to a preliminary investigation is a mere statutory
privilege which may be, and was in this case, withheld by law; and third, because a preliminary
investigation would serve no useful purpose considering that none of the questioned assets are
claimed to have been acquired through Nelly Ong’s funds.

In Republic v. Sandiganbayan, 29 we ruled that forfeiture proceedings under RA 1379 are civil in
nature and not penal or criminal in character, as they do not terminate in the imposition of a penalty
but merely in the forfeiture of the properties illegally acquired in favor of the State. Moreover, the
procedure outlined in the law is that provided for in a civil action, viz:

Sec. 3. The petition.—The petition shall contain the following information:

(a) The name and address of the respondent.

(b) The public office or employment he holds and such other public officer or employment which he
has previously held.

(c) The approximate amount of property he has acquired during his incumbency in his past and
present offices and employments.

(d) A description of said property, or such thereof as has been identified by the Solicitor General.

(e) The total amount of his government salary and other proper earnings and incomes from
legitimately acquired property, and
(f) Such other information as may enable the court to determine whether or not the respondent has
unlawfully acquired property during his incumbency.

Sec. 4. Period for the answer.—The respondent shall have a period of fifteen days within which to
present his answer.

Sec. 5. Hearing.—The court shall set a date for a hearing which may be open to the public, and
during which the respondent shall be given ample opportunity to explain, to the satisfaction of the
court, how he has acquired the property in question.

Sec. 6. Judgment.—If the respondent is unable to show to the satisfaction of the court that he has
lawfully acquired the property in question, then the court shall declare such property, forfeited in
favor of the State, and by virtue of such judgment the property aforesaid shall become property of
the State: Provided, that no judgment shall be rendered within six months before any general
election or within three months before any special election. The court may, in addition, refer this
case to the corresponding Executive Department for administrative or criminal action, or
both. [Emphasis supplied.]

Hence, unlike in a criminal proceeding, there is to be no reading of the information, arraignment, trial
and reading of the judgment in the presence of the accused.30

In the earlier case of Cabal v. Kapunan,31 however, we declared that forfeiture to the State of
property of a public official or employee partakes of the nature of a penalty and proceedings for
forfeiture of property, although technically civil in form, are deemed criminal or penal. We clarified
therein that the doctrine laid down in Almeda v. Perez32 that forfeiture proceedings are civil in nature
applies purely to the procedural aspect of such proceedings and has no bearing on the substantial
rights of the respondents therein. This ruling was reiterated in Katigbak v. Solicitor General,33 where
we held that the forfeiture of property provided for in RA 1379 is in the nature of a penalty.

It is in recognition of the fact that forfeiture partakes the nature of a penalty that RA 1379 affords the
respondent therein the right to a previous inquiry similar to a preliminary investigation in criminal
cases.

Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground

to engender a well-founded belief that a crime has been committed and the respondent is probably
guilty thereof, and should be held for trial. Although the right to a preliminary investigation is not a
fundamental right guaranteed by the Constitution but a mere statutory privilege, it is nonetheless
considered a component part of due process in criminal justice.34

It is argued, however, that even if RA 1379 is considered a criminal proceeding, Nelly Ong is still not
entitled to a preliminary investigation because the law itself withholds such right from a respondent
who is not himself or herself a public officer or employee, such as Nelly Ong.

RA 1379, entitled "An Act Declaring Forfeiture in Favor of the State of Any Property Found to Have
Been Unlawfully Acquired by Any Public Officer or Employee and Providing for the Procedure
Therefor," expressly affords a respondent public officer or employee the right to a previous inquiry
similar to preliminary investigation in criminal cases, but is silent as to whether the same right is
enjoyed by a co-respondent who is not a public officer or employee. Sec. 2 thereof provides:

Sec. 2. Filing of petition.—Whenever any public officer or employee has acquired during his

incumbency an amount of property which is manifestly out of proportion to his salary as such public
officer or employee and to his other lawful income and the income from legitimately acquired
property, said property shall be presumed prima facie to have been unlawfully acquired. The
Solicitor General, upon complaint by any taxpayer to the city or provincial fiscal who shall conduct a
previous inquiry similar to preliminary investigations in criminal cases and shall certify to the
Solicitor General that there is reasonable ground to believe that there has been committed a
violation of this Act and the respondent is probably guilty thereof, shall file, in the name and on
behalf of the Republic of the Philippines, in the Court of First Instance of the city or province where
said public officer or employee resides or holds office, a petition for a writ commanding said officer or
employee to show cause why the property aforesaid, or any part thereof, should not be declared
property of the State: Provided, That no such petition shall be filed within one year before any
general election or within three months before any special election….[Emphasis supplied.]

Is this silence to be construed to mean that the right to a preliminary investigation is withheld by RA
1379 from a co-respondent, such as Nelly Ong, who is not herself a public officer or employee?

The answer is no.

It is a significant fact in this case that the questioned assets are invariably registered under the
names of both Jose and Nelly Ong owing to their conjugal partnership. Thus, even as RA 1379
appears to be directed only against the public officer or employee who has acquired during his
incumbency an amount of property which is manifestly out of proportion to his salary as such public
officer or employee and his other lawful income and the income from legitimately acquired property,
the reality that the application of the law is such that the conjugal share of Nelly Ong stands to be
subjected to the penalty of forfeiture grants her the right, in line with the due process clause of the
Constitution, to a preliminary investigation.

There is in this case, however, another legal complexion which we have to deal with. As the OSG
noted, there is nothing in the affidavits and pleadings filed by petitioners which attributes the
acquisition of any of the questioned assets to Nelly Ong.

In his Counter-Affidavit, Ong explained that the questioned assets were purchased

using his retirement benefits from SGV amounting to ₱7.8 Million, various money market
placements, and loan from Allied Bank in the amount of ₱6.5 Million. He averred:

6. To fully explain the valid and legal acquisition of the foregoing listed property pointing out the
sources of funding, circumstances and details of acquisition, the following information is related:

A. As to the acquisition of the lot covered by TCT No. 172168, located at Ayala Alabang, Muntinlupa,
Metro Manila, for ₱5,500,000.00 on October 9, 1990.

Respondent’s sources for the ₱5,500,000.00 were:

a. Interest from his money market placements up to September 30, 1990 --------------₱2,404,643

b. Partial liquidation of money market placements -------------------------------------------------₱3,095,357

Total -----------------------------------------₱5,500,000

A brief historical narration of the money placements made by Respondent is included in the "Report
on the Statement of Net Worth of Com. Jose U. Ong Calendar Year 1989 to 1991," submitted by him
to the Office of the Ombudsman, on or about March 24, 1992.
After the acquisition of the above property, Respondent’s money market placements were reduced
to P4,365,834 (inclusive of interest which was not used to finance the above acquisition, and which
remaining balance was rolled over as part of the placements.

B. As to the acquisition of the lot covered by TCT No. 173386, located at Ayala Alabang, Muntinlupa,
Metro Manila, on December 3, 1990, for ₱5,055,000.00.

Respondent was offered this lot, and finding the same to be a good investment, he obtained a loan
from the Allied Banking Corporation for ₱6,500,000.00. ₱5,500,000 was used by him in the purchase
of the above property. Respondent’s credit worthiness is self evident from his Statement of Assets
and Liabilities as of end of December, 1989 where his net worth is duly reflected to be ₱10.9 Million.

Xerox copy of the Certification executed by the Corporate Secretary of Allied Banking Corporation
attesting to the grant of a five (5) year Term Loan of P6.5 Million pesos to Respondent on October
24, 1990, is attached and incorporated as Annex "3".

C. As to the acquisition of the lot covered by TCT No. 173760, located at Ayala Alabang, Muntinlupa,
Metro Manila, on January 16, 1991, for ₱4,675,000.00.

After the acquisition of the property described in the next preceding sub-paragraph B, Respondent
had available investible funds, money market placements, in the total sum of ₱5,894,815.00, the
details of which are as follows:

Balance of Money Market placements after acquisition of the property covered by TCT No. 173386
------------ 4,365,834.00

Interest earned in the above money market placements up to December 31, 1990 ------------------------
83,981.00

Unused portion of the loan of ₱6.5 Million ---- ………………………………………………….

₱1,445,000.00

Total --------------------------- ……………..₱5,894,815.00

From the foregoing balance of ₱5,894,815.00, came the P4,375,000.00 with which Respondent
purchased the real property covered by TCT No. 173760. There remained a balance of
₱1,219,815.00.

D. As to the acquisition in Respondent’s name of the lot at Ayala Alabang, Muntinlupa, Metro Manila,
covered by TCT No. 173901, on July 1, 1990.

This is an acquisition that had to be made in Respondent’s name for the benefit of Hamplish D.
Mercado (respondent’s brother-in-law) and Florentina S. Mercado, Filipino/Americans, both
residents of Persippany, New Jersey, U.S.A. The funding of this purchase came from Hamplish D.
Mercado who previously left funds with Respondent for the purpose of acquiring suitable property
where the Mercado spouses could stay when they return to the Philippines upon retirement. Due to
circumstances prevailing at the time when the sale was executed, it was done in the name of
Respondent and his wife. Respondent immediately thereafter executed an Acknowledgment of Trust
stating the aforementioned fact, duly notarized under date of 5 February 1991. Respondent has
likewise executed and signed a Deed of Absolute Sale, confirming the truth of all the foregoing.
Xerox copy of the said Acknowledgment of Trust dated February 5, 1991, and the duly signed Deed
of Absolute Sale still undated, are hereto attached as Annexes "4" and "4-A", respectively.

E. As to the alleged acquisition of the lot at Makati, Metro Manila, covered by TCT No. 171210 on
July 1, 1990 for ₱832,000.00.

Regarding the aforementioned alleged acquisition, there was even an acknowledgment of error in
the very making of the charge. Suffice it just to say that the Fact-Finding Report itself stated, "Hence,
the accusation that it was Com. Ong who provided funds for such acquisition is DEVOID of merit."

F. As to the acquisition of Condominium Unit covered by CCT No. 20785.

Though not included in the Complaint-Affidavit, this was added by Investigator Soguilon, and who
unilaterally and arbitrarily declared its acquisition by Respondent as coming from illegal means
without affording Respondent his constitutional right to due process. Had respondent been afforded
the opportunity to comment on the acquisition of subject Condominium Unit, he could have readily
explained the purchase price of ₱744,585.00. Under No. 6-C of this statement, it appears that there
still remained an unused balance of ₱1,219,815.60. Thus, even Respondent’s remaining investible
funds easily covered the purchase price.

He acknowledges the unintentional omission of the Condominium Unit in the listing of the same in
his Statements of Assets and Liabilities. However, as explained in the preceding paragraph the
acquisition cost of ₱744,585.00 is well within his readily available balance for investment after the
acquisition of the property covered by TCT No. 173760, which is ₱1,219,815.60.35

Even as petitioners denied the allegation in the petition for forfeiture that Nelly Ong has no visible
means of income with which she could have purchased the questioned assets, there is neither
indication nor pretense that Nelly Ong had a hand in the acquisition of the properties. Jose Ong
clearly declared that he purchased the properties with his retirement funds, money market
placements, and proceeds from a bank loan. Whatever defenses which Nelly Ong could have raised
relative to the sources of funds used in the purchase of the questioned assets are deemed waived
owing to the fact that they are subsumed in the submissions of her husband. Hence, even if she is
entitled to a preliminary investigation, such an inquiry would be an empty ceremony.

We now consider Ong’s allegations of bias and prejudice exhibited by the Ombudsman during the
preliminary investigation.

A perusal of the records reveals that the Graft Investigation Officer duly considered Ong’s
explanation as to the sources of funds with which he acquired the questioned assets. His averment
that he received retirement benefits from the SGV was understandably disregarded because the
only supporting document he presented then was the certification of the controller of SGV to the
effect that he received such benefits. Ong was likewise unable to substantiate his claim that he had
money market placements as he did not present any document evidencing such placements.
Further, apart from a certification from the corporate secretary of Allied Bank to the effect that he
obtained a loan from the said bank, no other document, e.g., loan application, credit investigation
report, loan approval, schedule of loan releases, real estate mortgage document, promissory notes,
cancelled checks, receipts for amortization payments, and statement of account, was presented to
support the claim.

Ong was even given the opportunity to present the documents in his possession relevant to the
approval of the Allied Bank loan, his receipt of retirement benefits from SGV, and money market
placements which would have validated his assertion that all the questioned acquisitions were from
legitimate sources.36 Up to this point, therefore, we find that the Ombudsman did not make any
unwarranted conclusions or proceed with arbitrariness in the conduct of the preliminary inquiry.

However, Ong calls the Court’s attention to the fact that he was not notified of the subpoenas duces
tecum ad testificandum apparently issued to SGV, Allied Bank and the BIR and the proceedings
taken thereon. This objection was raised in his Motion37 dated February 17, 1993, which was,
unfortunately, perfunctorily denied.

The Rules of Procedure of the Office of the Ombudsman38 provides that the "preliminary
investigation of cases falling under the jurisdiction of the Sandiganbayan and Regional Trial Court
shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to
the following provisions:

(f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts material
to the case which the investigating officer may need to be clarified on, he may conduct a clarificatory
hearing during which the parties shall be afforded the opportunity to be present but without the right
to examine or cross-examine the witness being questioned. Where the appearance of the parties or
witness is impracticable, the clarificatory questioning may be conducted in writing, whereby the
questions desired to be asked by the investigating officer or a party shall be reduced into writing and
served on the witness concerned who shall be required to answer the same in writing and under
oath."

Ong, therefore, should have been notified of the subpoenas duces tecum ad testificandum issued to
SGV, Allied Bank and the BIR. Although there is no indication on record that clarificatory hearings
were conducted pursuant to the subpoenas, Ong is entitled to be notified of the proceedings and to
be present thereat. The fact that he was not so notified is a denial of fundamental fairness which
taints the preliminary investigation.

So, too, did the fact that Ong was not served a copy of the Resolution directing the filing of a petition
for forfeiture deprive him of his statutory right to be furnished with a copy of the Resolution to file a
petition for forfeiture and to file a motion for reconsideration therefrom with the Ombudsman within
five (5) days from receipt of such Resolution pursuant to Sec. 27 of RA 6770. The law provides:

Sec. 27. Effectivity and Finality of Decisions.—(1) All provisionary orders of the Office of the
Ombudsman are immediately effective and executory.

A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must
be filed within five (5) days after receipt of written notice . . . .

For these reasons, we find that the Sandiganbayan, in its second assailed Resolution, correctly
ordered the Ombudsman to immediately furnish petitioners a copy of the Resolution to file the
petition for forfeiture, and gave petitioners a period of five (5) days from receipt of
such Resolution within which to file a motion for reconsideration. Although the second
Sandiganbayan Resolution was only intended to remedy the Ombudsman’s failure to give
petitioners a copy of the Resolution to file the petition for forfeiture, it would also have served to cure
the Ombudsman’s failure to notify petitioners of the issuance of subpoenas duces tecum ad
testificandum to SGV, Allied Bank and the BIR.
Instead of awaiting the Ombudsman’s compliance with the Resolution and filing their motion for
reconsideration therefrom, however, petitioners opted to go directly to this Court. With this
maneuver, petitioners effectively deprived themselves of an avenue of redress with the
Sandiganbayan. They are deemed to have waived their right to avail of the remedy afforded by the
second Resolution.

The next question is whether we should direct the Ombudsman to rectify the errors committed during
the preliminary investigation, i.e., the failure to give Ong notice of the subpoenas issued to SGV,
Allied Bank and the BIR and notice of the Resolution directing the filing of the petition for forfeiture.

To so order the Ombudsman at this point would no longer serve any useful purpose and would only
further delay the proceedings in this case. Verily, petitioners have been allowed to fully plead their
arguments before this Court. After all has been said, this case should now be allowed to proceed in
its course.

Nonetheless, we find this an opportune time to admonish the Ombudsman to be more circumspect
in its conduct of preliminary investigation to the end that participants therein are accorded the full
measure of their rights under the Constitution and our laws.

The other issues raised by petitioners concern the alleged disqualification of the Ombudsman to file
a petition for forfeiture considering that it also conducted the preliminary investigation to determine
probable cause. According to petitioners, the duality of the functions of the Ombudsman, as
investigator and prosecutor, impairs its ability to act as a fair and impartial magistrate in the
determination of probable cause.

Petitioners are the first to agree that the Ombudsman is vested with jurisdiction to investigate and
prosecute any act or omission of a public officer or employee when such act or omission appears to
be illegal, unjust, improper or inefficient. They recognize that the Ombudsman has primary
jurisdiction over cases, such as the present one, cognizable by the Sandiganbayan.

The problem with petitioners’ contention is their assumption that the Ombudsman, a constitutionally-
created body, will not perform its functions faithfully. The duality of roles which the Ombudsman
exercises does not necessarily warrant a conclusion that it will be given to making a finding of
probable cause in every case.

At any rate, "[I]n the debates on this matter in the Constitutional Commission, it was stressed by the
sponsors of the Office of the Ombudsman that, whereas the original Tanodbayan was supposed to
be limited to the function of prosecution of cases against public functionaries, generally for graft and
corruption, the former would be considered ‘the champion of the citizen,’ to entertain complaints
addressed to him and to take all necessary action thereon." 39 This should leave no doubt as regards
the constitutionality and propriety of the functions exercised by the Ombudsman in this case.

Verily, the Court in Republic v. Sandiganbayan,40 reviewed the powers of the Ombudsman and held:

At present, the powers of the Ombudsman, as defined by Republic Act No. 6770 corollary to Section
13, Article XI of the 1987 Constitution, include, inter alia, the authority to: (1) investigate and
prosecute on its own or on complaint by any person, any act or omission of any public officer or
employee, office or agency, when such act or omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the
exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of
Government, the investigation of such cases; and (2) investigate and intiate the proper action for the
recovery of ill-gotten wealth and/or unexplained wealth amassed after February 25, 1986 and the
prosecution of the parties involved there.41

In the same case, we declared that the Ombudsman has the correlative powers to investigate and
initiate the proper action for the recovery of ill-gotten and/or unexplained wealth which were
amassed after February 25, 1986. There is therefore no merit in petitioners’ contention that the
absence of participation of the OSG taints the petition for forfeiture with nullity.

Finally, the attacks against the constitutionality of RA 1379 because it is vague, violates the
presumption of innocence and the right against self incrimination, and breaches the authority and
prerogative of the Supreme Court to promulgate rules concerning the protection and enforcement of
constitutional rights, are unmeritorious.

The law is not vague as it defines with sufficient particularity unlawfully acquired property of a public
officer or employee as that "which is manifestly out of proportion to his salary as such public officer
or employee and to his other lawful income and the income from legitimately acquired property." It
also provides a definition of what is legitimately acquired property. Based on these parameters, the
public is given fair notice of what acts are proscribed. The law, therefore, does not offend the basic
concept of fairness and the due process clause of the Constitution.

Neither is the presumption of innocence clause violated by Sec. 2 of RA 1379 which states that
property acquired by a public officer or employee during his incumbency in an amount which is
manifestly out of proportion to his salary as such public officer or employee and to his other lawful
income and the income from legitimately acquired property shall be presumed prima facie to have
been unlawfully acquired. As elaborated by Fr. Joaquin Bernas, under the principle of presumption
of innocence, it is merely required of the State to establish a prima facie case, after which the
burden of proof shifts to the accused.42 In People v. Alicante,43 the Court held:

No rule has been better established in criminal law than that every man is presumed to be innocent
until his guilt is proved beyond a reasonable doubt. In a criminal prosecution, therefore, the burden is
upon the State to prove every fact and circumstance constituting the crime charged, for the purpose
of showing the guilt of the accused.

While that is the rule, many of the States have established a different rule and have provided that
certain facts only shall constitute prima facie evidence, and that then the burden is put upon the
defendant to show or to explain that such facts or acts are not criminal.

It has been frequently decided, in case of statutory crimes, that no constitutional provision is

violated by a statute providing that proof by the State of some material fact or facts shall
constitute prima facie evidence of guilt, and that then the burden is shifted to the defendant for the
purpose of showing that such act or acts are innocent and are committed without unlawful intention.

. . . The State having the right to declare what acts are criminal, within certain well defined
limitations, has a right to specify what act or acts shall constitute a crime, as well as what proof shall
constitute prima facie evidence of guilt, and then to put upon the defendant the burden of showing
that such act or acts are innocent and are not committed with any criminal intent or intention.44

The constitutional assurance of the right against self incrimination likewise cannot be invoked by
petitioners. The right is a prohibition against the use of physical or moral compulsion to extort
communications from the accused. It is simply a prohibition against legal process to extract from the
accused’s own lips, against his will, admission of his guilt.45 In this case, petitioners are not
compelled to present themselves as witnesses in rebutting the presumption established by law. They
may present documents evidencing the purported bank loans, money market placements and other
fund sources in their defense.

As regards the alleged infringement of the Court’s authority to promulgate rules concerning the
protection and enforcement of constitutional rights, suffice it to state that there is no showing that the
Ombudsman or the OSG is about to grant immunity to anyone under RA 1379. The question,
therefore, is not ripe for adjudication.

WHEREFORE, the petition is hereby DISMISSED. Costs against petitioners.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-38964 January 31, 1975

SAVORY LUNCHEONETTE, petitioner,
vs.
LAKAS NG MANGGAGAWANG PILIPINO, ELISEO GUZMAN, ROMEO RASCO, LUCIA VIVERO,
PEDRO BASILIO, CESAR MARTINEZ, RAFAEL IBANA, RICARDO ELICO, CIRILO ENOLPE,
VIRGINIA BACLOR, FEDERICO BALIBALOS, RODITO DAVA, ALEXANDER GARCES,
DRISENCIO RUBIO, HONORATO OLIVERIO, ROGELIO CANUEL, PUBLIO JAPSON, SONIA
BALDON, ANDY VELOSO, ANTONIO DE LA ROSA, JULIET NALZARO, PEDRO ACAL,
CELEDONIO PEREZ, EDUARDO ESTRADA, ANTONIO COSTALES, BLANCAFLOR FLORES,
PEDRITO DE GUZMAN, SOFRONIO JARANILLA, ARMANDO MARARAC, DOMINADOR
QUINTO, GREGORIO BALBIN and COURT OF INDUSTRIAL RELATIONS, respondents.

Felipe P. Fuentes, Jr. for petitioner.

Francisco M. de los Reyes for respondent Court.

MUNOZ PALMA, J.:

Involved in this Petition for Review on certiorari is an Order of the Court of Industrial Relations dated
May 3, 1974, issued in CIR Case No. 5843-ULP entitled: "Savory Luncheonette, petitioner, vs. Lakas
ng Manggagawang Pilipino, et al., respondents" which directed that the testimony of Atty. Emiliano
Morabe, a witness of petitioner herein, be stricken off the record and that the witness of petitioner,
Bienvenida Ting, be recalled for further cross-examination by herein private respondents. *
It appears from the Petition that on September 27, 1972, the Savory Luncheonette through a Court Prosecutor of the Court of Industrial
Relations filed a complaint charging the private respondents to whom We shall refer at times as LAKAS PILIPINO, with unfair labor practice
for having violated certain provisions of Republic Act 875 (Industrial Peace Act), to wit: declaring a strike in violation of a no-strike clause of
an existing collective bargaining agreement without prior resort to the grievance procedure provided for therein and without having observed
the 30-day cooling off period prescribed by law; employing illegal and unlawful means in carrying out their strike; and staging said strike to
obtain recognition inspite of the fact that there was another labor union duly certified by the Court of Industrial Relations (CIR for short) as the
sole and exclusive bargaining agent of the workers of the petitioner (Annex A, p. 24 rollo).

To sustain its charges, petitioner presented as its key witness, its legal counsel, Atty. Emiliano
Morabe. As legal counsel, Atty. Morabe had allegedly taken charge of the labor-management
problems of the petitioner and had thereby acquired first-hand knowledge of the facts of the labor
dispute.

Petitioner's counsel conducted the direct examination of Atty. Morabe and concluded the same on
March 2, 1973. Atty. Rodolfo Amante, counsel of LAKAS PILIPINO, was called to cross-examine
Atty. Morabe, but he moved for a postponement on the ground that he was "not in a position to
cross-examine the witness." Accordingly, the cross-examination of Atty. Morabe was re-scheduled
for March 7, 1973, but when such date arrived, Atty. Amante did not appear and so the cross-
examination was once more transferred to March 17, 1973, with the warning from the court that
"should the respondents still fail to cross-examine Atty. Morabe, the right to cross-examine him will
be deemed waived."

Not heeding this warning, Atty. Amante, for the third time failed to cross-examine the witness on
March 17 for the reason that he was not prepared to do so. Accordingly, the cross-examination was
again re-set for March 27, 1973 with the statement that "in view of the professed unpreparedness of
the representative of the respondents, the Court will give him one last chance to be ready at the next
scheduled hearing."  This warning notwithstanding Atty. Amante again failed and to conduct the
1

cross-examination invoking the excuse that he did not have a copy of the transcript of the direct
testimony. For the fifth time and again upon motion of LAKAS PILIPINO, the cross-examination was
postponed to April 2, 1973 with the reservation made by the witness, Atty. Morabe, however, to
challenge the ruling of the court granting another postponement of his cross-examination.

Atty. Morabe succumbed to a heart attack on March 31, 1973. On April 12, LAKAS PILIPINO filed a
motion to strike out the direct testimony of Atty. Morabe from the records on the ground that since
cross-examination was no longer possible, such direct testimony "Could no longer be rebutted."
(Annex B, p. 29, ibid) Petitioner filed an opposition to the said motion contending that by private
respondents' repeated failure and refusal to cross-examine despite all the time and opportunity
granted by the court, they are deemed to have the same (Annex C, p. 30, ibid)

On June 14, 1973, private respondents filed another motion seeking the recall of petitioner's witness
Bienvenida Ting for further cross-examination (Annex E, p. 41, ibid) Mrs. Ting was presented as a
witness to the petitioner on March 27, 1973 and cross-examined by the private respondents on June
4, 1973. The petitioner also opposed this motion on two counts: first, that the witness was already
cross-examined on June 4, 1973 or more than two months after her direct testimony, thus giving
private respondents sufficient time to go over the said testimony, and second, that the motion failed
to state the points that were not taken up during the previous cross-examination thus giving rise to
the conclusion that the recall of the witness was manifestly for delay and to harass and
inconvenience the witness.

In an Order dated May 3, 1974, respondent court granted the to motion (Annex F, p. 43, ibid)
Thereupon, petitioner filed a motion for reconsideration of the said order but the same was denied in
a resolution en banc dated July 5, 1974. (Annex G, p. 46, ibid) A copy of the resolution denying the
motion for reconsideration was received by the petitioner on July 12, 1974 and on July 16,1974, it
filed its notice of appeal. (Annex H, p. 17, ibid) After an extension of time was granted to petitioner
by this Court, the present Petition for Review was filed on August 6, 1974.

Petitioner now strongly asserts that respondent Court acted with grave abuse of discretion when the
latter ordered that the direct testimony of its principal witness, Atty. Morabe, be stricken off the
record for "(T)o strike out the testimony of Atty. Morabe after the respondents had been given
sufficient and repeated opportunities to cross-examine him, and after they have practically waived
their right to cross-examine him is unjust and unfair. It is not warranted by our rules of procedure and
would place a premium on respondents' repeated failure and refusal to cross-examine the witness.
Respondents should not be allowed to profit and benefit from their own neglect and omission." (pp.
18-19, rollo)

Petitioner's cause merits relief.

The right of a party to confront and cross-examine opposing witnesses in a judicial litigation, be it
criminal or civil in nature, or in proceedings before administrative tribunals with quasi-judicial powers,
is a fundamental right which is part of due process.  However, the right is a personal one which may
2

be waived expressly or impliedly by conduct amounting to a renunciation of the right of cross-

examination.  Thus, where a Party has had the opportunity to cross-examine a witness but failed to
3

avail himself of it, he necessarily forfeits the rights to cross-examine and the testimony given on
direct examination of the witness will be received or allowed to remain in the record. 4

The conduct of a party which may be construed as an implied waiver of the right to cross-examine
may take various forms. But the common basic principle underlying the application of the rule on
implied waiver is that the party was given the opportunity to confront and cross-examine an opposing
witness but failed to take advantage of it for reasons attributable to himself alone.

In People vs. De la Cruz, L-28110, March 27, 1974, 56 SCRA 84, 91, one of the issues raised by
appellant De la Cruz who was convicted of rape was that he was not accorded the right to cross-
examine the complainant. The Court discarded this contention of appellant under the following
circumstances: after the direct examination of the offended party on February 22, 1966, she was
cross-examined but the cross-examination was not finished; two days later or on February 24, the
cross-examination was resumed at 10:00 o'clock in the morning but after a few minutes the
examination was suspended; the case was then called at 10:35 that same morning for the
resumption of the cross-examination, however, the counsel for the accused asked for postponement
and so the hearing was transferred to March 1 reserving to the defendant the right to continue with
the cross-examination; no hearing was held, however, on March 1, after which other hearings were
scheduled with the offended girl duly subpoenaed to appear at those hearings; after some
cancellations or transfers, the trial was resumed on June 27, 1966; on that date, June 27, counsel
for the accused could have asked that he be allowed to continue the cross-examination but did not
do so, and did not object when the Fiscal called his next witness, either because the counsel forgot
or waived further cross-examination of the offended party. Under the foregoing circumstances, this
Court ruled that:

it cannot be said the constitutional right of the accused to meet the witnesses face to
face or the right to confrontation (Sec. 1 [f], Rule 115, Rules of Court; Sec. 1 [17] Art.
III, Old Constitution) was impaired.

The fact that the cross-examination of the complainant was not formally terminated is
not an irregularity that would justify a new trial. The right to confront the witnesses
may be waived by the accused expressly or by implication (U.S. vs. Anastacio, 6
Phil. 413; 4 Moran's Comments on the Rules of Court, 1970 Ed., p. 201-2).
In State of Hawaii vs. Brooks, 352 P 2d 611, the facts were: defendant was convicted in the Circuit
Court, First Circuit, City and County of Honolulu, of robbery in the second degree and when the case
came up to the Supreme Court of Hawaii on a writ of error, one of the issues raised by appellant was
that the trial court erred in refusing to allow him to cross-examine John Torres, a prosecution
witness. The record showed, however, that when the prosecution asked leave of the trial court to
withdraw Torres as witness after partial direct examination, counsel for the defendant made a
reservation of his right to cross-examine when the witness is recalled. The prosecution, however,
subsequently rested its case without recalling the witness. When defendant called the court's
attention to the fact that he had not had the opportunity to cross-examine, it was brought out that at
one instance, the Court asked counsel for the defendant if he wanted to cross-examine the witness
who was then in the corridors, to which question the said counsel answered "YES!" The record does
not show, however, that defendant pursued this point any further. No motion, no objection, no ruling
and no exception was made or taken, nor did the defendant call the witness in question for cross-
examination. In overruling appellant's contention, the Supreme Court of Hawaii held that while the
right to cross-examine a witness is fundamental and accepted as a basic right in the State's judicial
system, however, when a party fails to avail himself of the opportunity to cross-examine, he forfeits
such right, and the fact of the case conclusively showed that defendant was given an opportunity to
cross-examine, and that appellant's failure to proceed must be construed as an abandonment of his
earlier desire or intention to cross-examine the witness and he cannot now be heard to contend that
the trial court refused to permit said cross-examination.

The case of the herein petitioner, Savory Luncheonette, easily falls within the confines of the
jurisprudence given above. Private respondents through their counsel, Atty. Amante, were given not
only one but five opportunities to cross-examine the witness, Atty. Morabe, but despite the warning
and admonitions of respondent court for Atty. Amante to conduct the cross-examination or else it will
be deemed waived and despite the readiness, willingness, and insistence or the witness that he be
cross-examined, said counsel by his repeated absence and/or unpreparedness failed to do so until
death sealed the witness's lips forever. By such repeated absence and lack of preparation on the
part of the counsel of private respondents, the latter lost their right to examine the witness, Atty.
Morabe, and they alone must stiffer the consequences. The mere fact that the witness died after
giving his testimony is no ground in itself for excluding his from the record so long as the adverse
party was afforded an adequate opportunity for cross-examination but through fault of his own failed
to cross-examine the witness.   *
4

The applicability of the rule is especially justified in proceedings before tribunals with quasi-judicial
powers such as the Court of Industrial Relations. Under Section 20, Commonwealth Act No. 103,
which created the Court of Industrial Relations, respondent court is authorized to disengage itself
from the rigidity of the technicalities applicable to ordinary courts of justice; it is not narrowly
constrained by technical rules of procedure but is enjoined to act according to justice and equity. 5

Thus, in National City Bank of New York vs. National City Bank Employees Union, 98 Phil., 301,
invoked by petitioner herein, the National City Bank of New York sought to declare illegal the strike
of its employees held on June 11, 1952. After trial, the Court of Industrial Relations rendered a
decision on January 6, 1953, declaring the strike illegal and ordering the dismissal of the leaders of
the strike but allowing the return of 51 employees to their former positions. The Bank moved for a
reconsideration of the order on the ground that it was not granted an opportunity to present any
evidence or confront the witnesses; that motion was denied and a petition for certiorari was filed with
this Court. Dismissing the petition, the Court held that the failure to grant petitioner bank an
opportunity to cross-examine the persons from whom inquiries were made by an agent of the Court
of Industrial Relations as to the reasons why said 51 employees failed to return back to work, is not
a sufficient ground for the reversal of the order of the court and its findings because: (1) the Court of
Industrial Relations is not bound by strict rules of evidence in the determination of facts under
Section 20, Commonwealth Act 103; and (2) there is no showing that petitioner bank ever claimed
that the evidence gathered by the representative of the court was false or that it had in its
possession material evidence to disprove said findings. The Court said further: "In the absence of an
express allegation that a new hearing will change facts found, the new trial or cross-examination
demanded would be idle ceremony; it would not serve the ends of justice at all especially so in a
quasi-administrative body like the Court of Industrial Relations where the rules of confrontation and
cross-examination have not been expressly granted as in a trial against an accused in a criminal
case." (ibid, p. 305, Emphasis Ours)

The second motion of the order of respondent court of May 3, 1974, which is assailed by petitioner
directs the recall of Bienvenida Ting for further cross-examination. We believe that this order is
unwarranted. As claimed by petitioner, the motion to recall the witness is intended merely to delay
the proceedings and to harass and inconvenience the witness sought to he recalled. We particularly
note that the direct examination of the witness was completed on March 27, 1973, and that her
cross-examination was conducted on June 4, 1973, or after more than two months since the direct
examination. That interval of time was long enough for private respondents' counsel to scrutinize and
dissect the direct testimony of the witness and prepare himself for cross-examination. That the
counsel had all the time to himself when he conducted his cross-examination on June 4, 1973, and
that he concluded such cross-examination when more time was alloted for it, showed that he had
asked all the questions he could possibly ask. Had the witness been cross-examined right after she
gave her direct testimony, there might be reason to believe the claim that counsel unintentionally
forgot to ask some material questions. But that was not so. Under those circumstances, where it was
shown that a witness had been previously cross-examined extensively, it was more in consonance
with justice and equity for respondent court to have denied the recall of the witness
concerned.  More so, when the motion to recall failed to mention the matters sought to be
6

established in the additional cross-examination.

One point raised by respondent court in its Comment to this Petition is that certiorari does not lie
from the orders complained of for the reason that they are interlocutory in nature. (p. 57, rollo)
Suffice it for Us to re-state what this Court said in Manila Electric Co., et al. vs. Enriquez, et al., 110
Phil. 499:

While the Supreme Court would not entertain a petition for a writ
of certiorari questioning the legality and validity of an interlocutory order, when a
grave abuse of discretion is very patently committed, it devolves upon said court to
exercise its supervisory authority to correct the error committed. (emphasis supplied)

The instant Petition presents a clear case of grave abuse of discretion which justifies the Court's
intervention at this stage of the proceedings in the court below.

PREMISES CONSIDERED, the writ of certiorari prayed for is granted and the Orders of respondent
Court of May 3, 1974, and July 5, 1974, under review are hereby set aside. With costs against
private respondents.

So Ordered.

Republic of the Philippines

SUPREME COURT
Manila
 THIRD DIVISION

G.R. No. 71537 September 17, 1987

EMILIO DE LA PAZ, JR., ENRIQUE DE LA PAZ, MANUELA DE LA PAZ, NATIVIDAD DE LA

PAZ, MARGARITA DE LA PAZ and ZENAIDA DE LA PAZ, petitioners,
vs.
HON. INTERMEDIATE APPELLATE COURT, ADELAIDA S. TRINIDAD, CONRADO P. SANTOS,
JR., CESAR P. SANTOS, FELICITAS S. DE LEON, PONCIANITO P. SANTOS, SR.,
EVANGELINE S. TANSINGCO, ANTONIO P. SANTOS, and JAIME P. SANTOS, respondents.

GUTIERREZ, JR., J.:

The petitioners have lumped in one amended petition an original action for certiorari to set aside the
decision of the Regional Trial Court, Branch 71 at Antipolo, Rizal, in Civil Case No. 164-A and a
petition for review to nullify the decision of the Intermediate Appellate Court in AC-G.R. SP No.
05472.

The records show the following incidents which transpired prior to the filing of the instant petition.

On May 12, 1983, Loreto de la Paz filed a complaint against the petitioners with the Regional Trial
Court of Rizal for a judicial declaration of ownership of a 43,830 square meter parcel of land covered
by Original Certificate of Title No. 901 of the Register of Deeds, Rizal in the name of Ponciano de la
Paz with damages. The case was docketed as Civil Case No. 164-A.

Loreto alleged that the subject parcel of land was among the properties adjudicated to her and her
mother as a result of a partition submitted by the heirs of Ponciano de la Paz and approved by the
court in Civil Case No. 1399 of the Court of First Instance of Rizal. The subject matter of Civil Case
No. 1399 was Ponciano's testate estate.

In their answer, the petitioners denied that the disputed lot was among the properties adjudicated to
Loreto and her mother. They claimed that the parcel of land was not accounted for in the probate
proceedings but is actually community property of the parties.

The parties, except for petitioner Enrique de la Paz, were admittedly compulsory heirs of Ponciano
de la Paz who died in 1916. Loreto was the only legitimate child of Ponciano while: 1) Emilio de la
Paz, Jr., is the son of Emilio, a recognized natural child of Ponciano; 2) Manuela de la Paz is the
recognized natural child of Ponciano; 3) Natividad de la Paz is the daughter of Emilio, recognized
natural child of Ponciano; 4) Margarita de la Paz is the daughter of Wenceslao, a recognized natural
child of Ponciano; and 5) Zenaida de la Paz, is the daughter of Augusto, another recognized natural
child of Ponciano. As regards petitioner Enrique de la Paz, Loreto denied his claim that he is one of
the heirs of Ponciano. The petitioners, however, allege that he is also a compulsory heir of
Ponciano, he being the son of Ponciano de la Paz, Jr., the eldest child of the decedent.

The parties failed to arrive at an amicable settlement during pre-trial. Hence, trial on the merits
followed.

Loreto took the witness stand. She finished her direct testimony on March 12, 19984.
On April 25, 1984, the petitioners' counsel began his cross-examination of Loreto. The cross-
examination was, however, not completed. The petitioners' counsel moved in open court for the
continuance of the cross-examination on the ground that he still had to conduct a lengthy cross-
examination. (p. 17, Court of Appeals' rollo).

On May 18, 1984, Loreto's counsel filed a motion for "correction of transcript" due to some errors in
the transcript of stenographic notes taken during the direct testimony of Loreto. The motion was
granted.

This order granting the correction prompted the petitioners'' counsel to manifest that he would not be
able to undertake the cross-examination of the witness as scheduled. He asked for the
postponement of the May 23, 1984 hearing. The trial court postponed the trial of the case to May 31,
1984 and later to July 5, and 11, 1984. (p. 16, Court of Appeals' rollo)

On August 13, 1984, trial resumed. The petitioners' counsel, however, asked for still another
postponement of the cross-examination to give him a chance to go over the stenographic notes. In
an order of the same date, the hearing was again postponed. (p. 17, Court of Appeals' rollo)

During the scheduled trial on September 14, 1984, neither the petitioners, nor their counsel
appeared despite due notice. Loreto's counsel, therefore, filed a motion that she be allowed to
present evidence ex parte before a commissioner. The motion was granted and Loreto presented
additional evidence ex parte in the afternoon of the same day. On this same date, she finished the
presentation of her evidence and submitted her case for decision.

Despite this development, the petitioners upon their motion were allowed to cross-examine Loreto.

On the scheduled hearing set on September 18, 1984, the petitioners' counsel failed to appear, and
the cross-examination of Loreto was deferred for the fourth (4th) time. (p. 17, Court of Appeals' rollo)

Finally, on November 7, 1984, the petitioners' counsel resumed his repeatedly postponed cross-
examination of Loreto. The cross-examination was, however, cut short and rescheduled again on
motion of the petitioners' counsel.

Unfortunately, Loreto died on December 1, 1984. An amended complaint was filed for the purpose of
substituting the respondents, herein, they being the children and heirs of Loreto.

At the resumption of the trial on January 21, 1985, the petitioners moved verbally to strike off the
record the entire testimony of Loreto. The motion was denied. A verbal motion for reconsideration
was likewise denied.

In view of the petitioners' manifestation that they will appeal the ruling the appellate court, the trial
court issued on January 24, 1985 a more detailed order denying the motion to strike off the record
Loreto's testimony. (p. 17, Court of Appeals' rollo).

On February 11, 1985, the trial court issued another order allowing, among other things, the private
respondents to present their exhibits. A controversy as to the contents of this February 11, 1985
order will be discussed later.

On February 18, 1985, the petitioners filed a petition with the Intermediate Appellate Court to annul
the lower court's orders dated January 24, 1985 and February 11, 1985 and to prohibit the court
from further proceeding in Civil Case No. 164-A. The petition for certiorari and prohibition was
docketed as AC-G.R. SP. No. 05472.

This petition notwithstanding, the lower court continued the proceedings in Civil Case No. 164-A.
Thus, on March 29, 1985, the lower court promulgated a decision in Civil Case No. 164-A declaring
the private respondents, the children and heirs of Loreto, as the true owners of the subject parcel of
land. Damages were also awarded in favor of the private respondents. The dispositive portion of the
decision reads:

IN VIEW OF THE FOREGOING, JUDGMENT is hereby rendered

(a) Declaring plaintiffs as the true and lawful owners of the parcel of land covered by
Original Certificate of Title No. 901 of the Register of Deeds of Rizal;

(b) Ordering the defendants to surrender the owner's duplicate copy of Original
Certificate of Title No. 901;

(c) Directing the Register of Deeds of Rizal, Pasig Branch to cancel Original
Certificate of Title No. 901 and to issue a new one in the names of the plaintiffs;

(d) Ordering the defendants jointly and severally to pay to the plaintiffs Five Hundred
Thousand Pesos (P500,000.00) as actual damages, Five Hundred Thousand Pesos
(P500,000.00) as moral damages, Five Hundred Thousand Pesos (P500,000.00) as
exemplary or corrective damages, Fifty Thousand Pesos (P50,000.00) as attorney's
fees, plus the costs; and

(e) Dismissing the defendants counterclaim. (pp. 13-14, rollo)

On June 20, 1985, the appellate court also rendered a decision in AC-G. R. SP No. 05472. The
petition was denied due course and dismissed. A motion for reconsideration was denied for lack of
merit.

Initially, the petitioners filed only a petition to review on certiorari the appellate court's decision and
resolution respectively.

Upon motion of the petitioners, we admitted the amended petition which now seeks to annul the
decision of the lower court in Civil Case No. 164-A aside from setting aside the appellate court's
decision and resolution in AC-G.R. SP No. 05472.

In another resolution dated January 20, 1986, we gave due course to the petition and considered the
respondents' comments as answer.

We first review the challenged decision and order of the appellate court. The petitioners contend that
the appellate committed grave abuse of discretion when it sanctioned the trial court's orders which
denied the striking out of the testimony of original plaintiff Loreto de la Paz from the record.

A motion to strike off testimony from the record is an interlocutory order. Well-settled is the rule that
interlocutory orders may not be subjects of a petition of certiorari unless issued in patent abuse of
discretion. (See Villalon, Jr. v. Intermediate Appellate Court, 144 SCRA 443; Bautista v. Sarmiento,
138 SCRA 587).
We see no grave abuse of discretion on the part of the trial court when it issued the questioned
order. True, we have consistently ruled on the nature of the right of cross-examination, to wit:

The right of a party to confront and cross-examine opposing witnesses in a judicial

litigation, be it criminal or civil in nature, or in proceedings before administrative
tribunals with quasi-judicial powers, is a fundamental right which is part of due
process. (Savory Luncheonette v. Lakas ng Manggagawang Pilipino, et al., 1975, 62
SCRA 258).

xxx xxx xxx

The right of a party to cross-examine the witness of his adversary in invaluable as it

is inviolable in civil cases, no less than the right of the accused in criminal cases. The
express recognition of such right of the accused in the Constitution does not render
the right thereto of parties in civil cases less constitutionally based, for it is an
indispensable part of the due process guaranteed by the fundamental law. ... Until
such cross-examination has been finished, the testimony of the witness cannot be
considered as complete and may not, therefore, be allowed to form part of the
evidence to be considered by the court in deciding the case. (Bacrach Motor Co.,
Inc., v. Court of Industrial Relations, 86 SCRA 27 citing Savory Luncheonette v.
Lakas ng Manggagawang Pilipino, et al., supra, Ortigas, Jr. vs. Lufthansa German
Airlines, 64 SCRA 610)

But we have also ruled that it is not an absolute right which a party can demand at all times. This
Court has stated that:

xxx xxx xxx

the right is a personal one which may be waived expressly or impliedly by conduct
amounting to a renunciation of the right of cross-examination. Thus, where a party
has had the opportunity to cross-examine a witness but failed to avail himself of it, he
necessarily forfeits the right to cross-examine and the testimony given on direct
examination of the witness will be received or allowed to remain in the record.

The conduct of a party which may be construed as an implied waiver of the right to
cross-examine may take various forms. But the common basic principle underlying
the application of the rule on implied waiver is that the party was given the
opportunity to confront and cross-examine an opposing witness but failed to take
advantage of it for reasons attributable to himself alone.

xxx xxx xxx

The case of the herein petitioner, Savory Luncheonette, easily falls within the
confines of the jurisprudence given above. Private respondents through their
counsel, Atty. Amante, were given not only one but five opportunities to cross-
examine the witness, Atty. Morabe, but despite the warnings and admonitions of
respondent court for Atty. Amante to conduct the cross-examination or else it will be
deemed waived, and despite the readiness, willingness and insistence of the witness
that he be cross-examined, said counsel by his repeated absence and/or
unpreparedness failed to do so until death sealed the witness' lips forever. By such
repeated absence and lack of preparation on the part of the counsel of private
respondents, the latter lost their right to examine the witness, Atty. Morabe, and they
 alone must suffer the consequences. The mere fact that the witness died after giving
his direct testimony is no ground in itself for excluding his testimony from the record
so long as the adverse party was afforded an adequate opportunity for cross-
examination but through fault of his own failed to cross-examine the witness. (Savory
Luncheonette v. Lakas ng Manggagawang Pilipino, supra; at pp. 263-267)

In the case at bar, the petitioners' failure to cross-examine Loreto was through no fault of the
respondents. As can be gleaned from the record, Loreto was available for cross-examination from
the time she finished her direct testimony on March 12, 1984 to November 7, 1984, the last
scheduled hearing of the case before her death on December 1, 1984. The petitioners not only kept
on postponing the cross-examination but at times failed to appear during scheduled hearings. The
postponement of the trial on May 23, 1984 to a later date duet o the correction of the stenographic
notes of Loreto's testimony may be justified, but the same cannot be said for the subsequent
posponements requested by the petitioners. The scheduled trials before November 7, 1984, did not
push through, because of the petitioners' fault. It may also be recalled that at the scheduled hearing
on September 14, 1984 neither the petitioners nor their counsel appeared leading to the
presentation of evidence ex parte. And also during the scheduled hearing on September 18, 1984,
when the petitioners were allowed to cross-examine Loreto despite the fact that the case was
already deemed submitted for decision, the petitioners again failed to appear.

Under these circumstances, we rule that the petitioners had waived their right to cross-examine
Loreto. Through their own fault, they lost their right to cross-examine Loreto. Her testimony stands.

As regards the petition to set aside the trial court's decision, the pivotal issue hinges on the contents
of the February 11, 1985 order. The petitioners argue that Presiding Judge Benedicto "arbitrarily and
whimsically changed without notice to either party, the tenor of the order it dictated in open court,
apart from injecting facts that did not and could not have transpired on February 11, 1985, acts
apparently calculated to deprive petitioners, as in fact they were deprived petitioners, as in fact they
were deprived of their right to present evidence in their behalf." (p. 38, Rollo).

According to the petitioners, the trial court issued two conflicting versions of the February 11, 1985
order. The order dictated in open court on February 11, 1985 states:

In view of the manifestation of the counsel for the plaintiff that he is formally re-
offering in evidence all documentary exhibits and testimonial evidence presented and
it appearing that the transcript taken during the ex-parte hearing is already available
and availed of by counsel for the defendant, he is hereby given ten (10) days from
today to file his objections after which this case will be deemed submitted for
resolution. In view of the fact that he will appeal the order of this court denying his
motion to strike out from the record, the testimony of the plaintiff, Loreto de la Paz,
the presentation of the evidence of the defendants is hereby held in abeyance. (p.
29, Court of Appeals' rollo)

while the signed order dated February 11, 1985 states, to wit:

In view of the manifestation of the counsel for the plaintiff that he is formally re-
offering in the evidence all documentary exhibits and testimonial evidence presented
and after their admission he will rest his case and it appearing that the transcript
taken during the ex-parte hearing has been long available and availed of by counsel
for the defendants, he is hereby given ten (10) days from today to file his objections
thereto after which action will be taken on the admission of said exhibits. The said
period having lapsed without defendants' counsel filing his comments on the
 admission of the exhibits A to Z and the sub-marked exhibits are admitted in
evidence for Plaintiffs, Defendants' counsel forthwith manifested that he will appeal
to the Intermediate Court of Appeals (sic) the ruling of this Court denying his Motion
to Strike off from the records the entire testimony of Plaintiff Loreto de la Paz who
was partly cross-examined already but who died thus his cross examination could
not be completed. Said counsel then refused to present evidence in behalf of
defendants on the ground that he intended to appeal as already alluded above the
Order of this court denying the Motion in question. The court has ruled in its Order of
January 21, 1983 that inspite of the attitude of Counsel the trial shall proceed as
scheduled.

Thus, at the hearing today said Counsel failed to proceed with the trial to present his
evidence. This case shall be deemed submitted for Resolution. (p. 31, Court of
Appeals' rollo)

It is to be noted that in the dictated version of the February 11, 1985 order, the petitioners were
given ten (10) days from February 11, 1985 to file their objections after which the case will be
submitted for resolution and that the presentation of evidence for the petitioners was held in
abeyance.

However, in the other version, the case was declared as already deemed submitted for resolution.

It is this second version of the February 11, 1985 order which the trial court used as justification for
its promulgation of the March 29, 1985 decision in Civil Case No. 164-A.

The record clearly shows that this second version of the February 11. 1985 order was issued without
the knowledge of the parties. In fact, on March 14, 1985, the respondents filed an urgent motion to
consider the case submitted for decision with the following allegations: 1) that in the hearing of
February 11, 1985, the petitioners were required to submit their comment or objection to
respondents' offer of evidence and they were given ten (10) days from the said date within which to
do so, and thereafter to present their evidence; and 2) that notwithstanding the lapse of more than
thirty (30) days, the respondents have not submitted their comment or objection to petitioners' offer
of evidence much less have they take any move to present their evidence. (pp. 32033, Court of
Appeals' rollo). the respondents would not have filed this motion if the case was already deemed
submitted for decision pursuant to the second version of the February 14, 1985 order. Furthermore,
the respondents do not rebut these allegations.

The trial court committed a grave abuse of discretion in issuing the order dated February 11, 1985,
the contents of which conflict with another order of the same date dictated in open court during the
hearing of the case on February 11, 1985.

The issuance of this second version of the February 11, 1985 order prejudiced the petitioners'
cause. They were deprived of their right to present evidence in their behalf.

Consequently, the decision of the trial court in Civil Case No. 164-A must be declared null and void,

Another issue raised by the petitioners centers on whether or not the trial court committed grave
abuse of discretion in rendering judgment in Civil Case No. 164-A despite the pendency of the
petition which sought to inhibit it from further proceeding with the case.
The appellate court did not restrain the trial court until April 22, 1985 after the petitioners presented
the certified copy of the February 11, 1985 order. (p. 35, Court of Appeals rollo). The trial court did
not abuse its discretion or commit reversible error. It is within its sound discretion to either proceed
with the case in the absence of the prayed-for restraining order to refrain from acting on the case
until the higher court decides the matter elevated. to it. the circumstances of each case dictate what
action shall be take.

The final issue raised by the petitioners is with regard to the damages awarded the respondents by
the trial court.

In their complaint, the respondents asked for the following damages: 1) at least P150,000.00 as
actual damages; 2) P200,000.00 as moral damages; and 3) P50,000.00 as attorney's fees plus
exemplary damages which may be deemed just and equitable in the premises. The trial court
awarded to the respondents the following: P500,000.00 as actual damages; P500,000.00 as moral
damages; P500,000.00 as exemplary damages; P50,000.00 as attorney's fees and costs.

The questioned decision, however, is silent as to how the court arrived at these damages. Nowhere
in the decision did the trial court discuss the merit of the damages prayed for by the petitioners.
There should be clear factual and legal bases for any award of considerable damages. (See Rubio
v. Court of Appeals, 141 SCRA 488).

WHEREFORE, the amended petition is partly DENIED in that the questioned decision and resolution
of the Intermediate Appellate Court, now court of Appeals in AC-G. R. SP No. 05472 are
AFFIRMED. The petition is GRANTED in part. The questioned decision of the then Court of First
Instance of Rizal in Civil Case No. 164-A is SET ASIDE as null and void. The successor Regional
Trial Court is directed to conduct further proceedings and to receive the evidence of the petitioners in
Civil Case No. 164-A.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-11223             March 16, 1959

PABLO VENTURA y CLARIN, ANGELINA ANG and BUENAVENTURA

EVANGELISTA, petitioners,
vs.
HON. JUDGE NICASIO YATCO, as Judge of the Court of First Instance of Rizal, Quezon City
Branch, LUZ VENTURA and FERNANDO GOROSPE, respondents.

Buenaventura Evangelista for petitioners.

Fernando Gorospe, Sr. and Fernando Gorospe, Jr. for respondents.
LABRADOR, J.:

Petition for certiorari against the following orders of Hon. Nicasio Yatco, presiding judge of the Court
of First Instance of Rizal, Quezon City Branch: (1) An order dismissing Civil Case Q-1831, entitled
Pablo Ventura y Clarin, et al., vs. Luz Ventura, et al., for partition and damages; (2) Two orders
declaring Atty. Buenaventura Evangelista, counsel for the plaintiffs in Civil Case Q-1831, in contempt
of court; and (3) An order denying petitioners, motion for correction of stenographic notes.

The record discloses that on April 14, 1956, Pablo Ventura y Clarin and his wife Angelina Ang de
Ventura filed a complaint for partition and damages against Luz Ventura and her husband Fernando
Gorospe, which complaint was docketed as Civil Case No. Q-1831 of the Court of First Instance of
Quezon City. The complaint alleges that the plaintiffs and the defendants are co-owners of two
parcels of registered land situated in Quezon City, and of the improvements thereon, since May 23,
1955; that the defendants are in possession of the properties and have refused to deliver the share
therein of the plaintiffs; that the defendants threatened and intimidated the plaintiffs when the latter
attempted to take possession of the properties; that said properties could easily be entered for P800
a month, had not the defendants taken exclusive possession thereof; to that the plaintiffs lost P400
as their share in the rentals; and that the partition of the properties would serve the best interests of
all the parties.

The defendants alleged in their answer that the properties in question belong to their father, Pablo
Ventura y Villalon and their deceased mother Luz Ventura y Clarin; that said parents have always
been in possession of the lands and that the plaintiffs had never asked for the partition of the
properties nor for the properties to be rented; that defendants are staying in said properties to
accompany their aged father, who has the right to posses, occupy and live in the same during his
lifetime.

Pablo Ventura y Villalon, father of both plaintiffs and defendants, filed a complaint in intervention,
which does not appear in the record. In answer thereto, the plaintiffs claim they had bought one-half
of the properties from the intervenor and his deceased wife.

The case was set for hearing on July 11, 1956, before Judge Nicasio Yatco. During the hearing and
while the plaintiff Pablo Ventura y Clarin was on the witness stand, petitioner Atty. Evangelista,
counsel for the plaintiffs, was declared by the respondent judge in contempt in contempt twice, once
when he manifested that the respondent judge has been taking an active part in the proceedings (p.
24, t.s.n.), and again when he asked for the suspension of the hearing to enable him to file a motion
for disqualification of the judge (p. 25, t.s.n.). When petitioner Atty. Evangelista manifested further
that he will not present evidence anymore, the respondent judge, upon motion of defendant's
counsel, dismissed the case.

On July 18, 1956, the plaintiffs filed a motion for reconsideration of the order of dismissal and the
reassignment of the case to another judge, and on August 30, 1956, the respondent judge modified
his order of dismissal by making said dismissal without prejudice. On July 24, 1956, petitioners also
filed a motion for correction of the stenographic notes, but the same was denied by the court. These
orders are now sought to be annulled to be annulled in this petition.

The first issue in this petition is, whether the trial court committed grave abuse of discretion in
dismissing Civil Case No. Q-1831. The transcript shows that the plaintiffs presented only one
witness, plaintiff Pablo Ventura y Clarin, who testified rather vaguely on his suspicion that the
properties sought to be divided are being used as a front for illegal purposes and of his conversation
with the intervenor for the division of the properties. In the course of the examination of said witness
and as the judge took part in the examinations, attorney for plaintiffs became irritated thereby and
protested that the judge was unfairly meddling with the presentation of his case. Thereupon, the
judge declared him in contempt of court. Said attorney then asked for opportunity to present a
motion to disqualify the judge, but the judge, instead of allowing him to do so declared him guilty of
another contempt. With this later order said counsel lost his temper and refused to proceed further. It
was then that the court dismissed the case on motion of counsel for the other party. But when
counsel for plaintiff filed a motion for reconsideration of the order of dismissal, the court modified the
order making it without prejudice.

It is apparent that the remedy of petitioners, plaintiff's below, is an appeal from the order,
not certiorari. The petition in this respect is hereby dismissed.

The second question is, whether the trial court committed grave abuse of discretion or acted without
jurisdiction in denying plaintiffs' motion for correction of stenographic notes. Jose A. Jasmin, the
court stenographer, had certified to the correctness of his transcript, and as no competent evidence
was offered to show that stenographer committed mistakes, or had not performed his work regularly,
the trial court did not or in denying said motion.

The third question, which is the most important one, refers to the claim made by the petitioner that
the trial judge had interrupted the proceedings by remarks, questions, rullings, opinions and
argumentation, motu proprio, in a most aggressive and angry manner; that his participations as
judge has been overzealous, showing a prejudgment of the case and bias prejudice, partially and
hostility against the plaintiffs and their counsel and that the protest made by counsel for plaintiffs
against the above actuations of the judge cannot be considered and should not be considered as
contemptuous. We have taken pains to read carefully the transcript of the testimony taken at the trial
and we find, as petitioner claims, that the court actively took part in the examination. However, we do
not find that said active participation in the trial contained or showed any prejudice, bias or hostility
against the witness or his case. It is true that in the beginning of the trial the judge desired that
plaintiff proceed to the issue raised in the special defense and in intervention, namely, that the
properties subject of the action had not been actually transferred in ownership to the plaintiff and his
sister, with their father having relinquished possession of the properties. From the allegations of the
pleadings, we find this to be the real issue and the judge acted in the interest of a speedy trial when
he tried to make counsel for the plaintiffs direct his evidence towards this issue, which suggestion,
however, was rejected by counsel for the plaintiff. Despite this rejection of the direction of the judge,
which would have shortened the trial, the judge permitted counsel to develop plaintiff's own theory as
third counsel believed it to be. We find no interest nor partiality, nor hostility in said attempt on the
part of the judge on the other hand, we find it to be motivated by a desire to shorten the trial by
making plaintiffs go directly to the issue involved.

After the incident about the above attempt on the part of the judge to direct evidence to what he
considered to be the decisive issue, the judge abandoned his attempt. While it is true that he
participated may times by his questions, these were clearly to clarify certain points. Thus on page 9
of the transcript the court formulated the following questions: whether the corporation testified to is
registered; whether the witness is a member of the Board of Directors; whether the share given to
witness were given by witness' father, questions which were merely clarifying these helped counsel
of plaintiffs instead of delaying him. On page 11 of the transcript, while witness was referring to an
illegal transaction was. But witness refused to disclose what it is. The illegality by the transaction
necessarily involves the claim made by the plaintiffs in their complaint that the defendants were not
utilizing the supposed common properties as they should have. The judge's participation in the
questioning in the above respect is also not improper.

On page 13 of the record, when the witness spoke of a certain corporation known as the Lords
Enterprises, the court asked if it is existing and operating. When the witness answered that it was no
longer in operation, he asked if plaintiff and his father are still in business. There is also no harm in
the questions asked by the judge.

On pages 15 and 16, the judge asked merely whether plaintiff subscribed his complaint under oath.
There is nothing wrong in such a question. On pages 16 and 17 of the record, the judge merely
called the attention of counsel for plaintiff, who was then testifying, that there are no allegations in
the complaint about the Lords Enterprises and the dissolution of the corporation. The counsel for
plaintiffs justified the question by stating that the evidence he was submitting was in reply to the
defendants' answer and the judge ruled that the supposed evidence was not evidence in chief and
that he ought first to submit his evidence in chief. The judge was again correct in this. Defenses
should not be anticipated and the evidence in chief should be submitted.

From pages 21 to 22 of the record, it appears from the testimony of the plaintiffs that the latter
demanded partition through their father, the intervenor, and thereupon the judge said that unless the
father was duly authorized by the defendants for that purpose, the actions of the father could not
bind the defendants. The observation of the judge in this respect is also correct.

Now going to the incidents immediately preceding the order of contempt, we note that the following
appear in the transcript:

Q — As to the rentals you stated here, . . .

COURT

Possible rentals . . .

Q — Possible rentals of these properties, what will be your share if.

COURT

It is clear, compañero, 50% for his father and 50% for them.

ATTY. EVANGELISTA

Make it of record. I observe that Your Honor, has been taking an active part in this
proceedings since the beginning . . . .

COURT

Are you not withdrawing that?

ATTY. EVANGELISTA

It is on the record

COURT

I am giving you a chance, are you not withdrawing that?

A — I am sorry, I am not withdrawing that, your Honor.

 COURT

All right, you are hereby fined P20.00.

ATTY. EVANGELISTA

I would like to ask for a suspension of the proceedings and I would like to file a motion for the
disqualification of your Honor to continue with this proceeding because this representation
believes that his Honor has shown from the very beginning an attitude hostile against the
plaintiffs.

COURT

You are again fine P100.00. Your fine now is P120.00. Continue. (t.s.n., pp. 24-25.)

It will be noted from the above that the counsel for plaintiffs made an insulting remark when he said:
"I observe that your Honor, has been taking an active part in this proceedings since the
beginning . . ." The insinuation made in the remark, while not express, is that the judge has been
partial or hostile, which is entirely unfounded. The above remark was a challenge against the probity
and fairness of the judge in the course of the trial, and we find that the imposition of the fine of
P20.00 may not be considered as a grave abuse of discretion. When thereafter counsel for plaintiffs
openly stated that he was going to ask the disqualification of the judge, he clearly showed a
disrespect to the judge and the imposition of another fine then and there by the judge can not also
be said to have been a grave abuse of discretion.

We understand from the petition that the tone and manner in which the judge made these questions
or remarks were haughty and arrogant and hostile. The tone may be so, but an impartial reading of
the words shows that such tone, id ever arrogant, could not have been meant by the judge to be so.

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

Wherefore, we do not find any abuse of discretion on the part of the judge in imposing the first fine
for the insulting remark of counsel, as well as the second fine, which apparently was imposed
because of the reiteration of the previous insulting remark.
For all the foregoing considerations, the petition for certiorari is hereby denied, with cost against
petitioners.

Paras, C.J., Bengzon, Padilla, Montemayor, Bautista Angelo, Concepcion, Reyes, J.B.L. and
Endencia, JJ., concur.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-1441             April 7, 1949

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MIGUEL N. MORENO (alias CAPTAIN MORENO), defendant-appellant.

Almacen & Almacen for appellant.

First Assistant Solicitor General Roberto A. Gianzon and Solicitor Luis Feria for appellee.

PERFECTO, J.:

At the break of the war in 1941 appellant was serving sentence in the San Ramon Penal Farm
where he was assigned as assistant chief of the machinery and engineering division. He says that
he was also designated by USAFFE Major Pitcher to take charge of the observation squadron of the
Penal Colony, and, as such observer, he was ordered, together with the superintendent of the
institution, Severo Yap, to burn the wharf in Recodo, get some machinery and truck nearby and
bring them to San Ramon. At the time there was a jail break and so he, together with some guards,
was ordered to apprehend the escapees. According to him, he was later on pardoned by President
Quezon, and the order of pardon was received by the superintendent of the colony, a copy of which
was handed to him in the early part of 1942.

After the Japanese had landed in Zamboanga, defendant was made a commander of the "Kaigun
Juitai," a military organization attached to the Japanese naval police of Zamboanga. As such he was
authorized to possess a. 45 caliber revolver, a Japanese saber, and a "caborata" and to wear a
uniform of blue denim shirt and pants and an olive green cap with an anchor at the front. He allowed
his beard to grow down to his chest.

Accompanied by his daughter Olimpia, Ramon B. Alvarez went in the afternoon of November 15,
1943, for a friendly visit to Otto Galle, a German-born naturalized Filipino citizen and owner of a one
thousand hectare coconut plantation known as Patalon. Ramon was met by Heddy, Galle's daughter
and wife of Dr. Eduardo del Rosario. She told him that if he had not come, she would have called for
him. She brought him to an adjoining building which housed the canteen where Dr. Del Rosario's
house was also located. Del Rosario handed a note conceived as follows: "I would like you to come
here at Cadalogan at 6 a.m., sharp for a conference. In coming to that place just come alone. (Sgd.)
Berenguer, 1st Lt. Infant."

Because the letter was delivered by one Ernesto, a nephew of appellant's wife, Mrs. Del Rosario had
misgivings about the authenticity of the letter. Alvarez suspected it to be fake and as a trick of
appellant to meet Del Rosario, because he knew that Lieutenant Berenguer was then in Dipolog and
could not be in Cadalogan, within the jurisdiction of Zamboanga. Besides, Berenguer was only a
second infantry lieutenant.

The fact that the owner of the Patalon plantation used to give the guerrillas a monthly contribution of
P150, some medicine, coffee and other foodstuffs and the fact that some members of the resistance
movement used to visit Galle's house strengthened the worries and fears of Alvarez and the Del
Rosario spouses. Alvarez advised that the note must not be answered and that a sailboat be
prepared in order to leave the place when necessary. Otto Galle requested Alvarez to pass the night
in Patalon. Although he himself entertained fears that he might be implicated i found in the Galle
residence, Alvarez consented to remain in the place for the night with his daughter.

After supper and when Alvarez had already retired to the room assigned to him, a voice form the
yard outside was heard calling for Dr. Del Rosario. The latter went to a window and asked who was
calling, and the answer was: "The one who arrived," which was understood by the inmates of the
house to be that the one who answered was or pretended to be a guerilla.

Those in the house assembled in the sala. Heddy del Rosario came telling that: "It is exactly 10:05."
After a conference, Del Rosario took his wrist watch and handed it to Alvarez telling him: "Give it to
them." Alvarez was about to follow the suggestion but in the middle of the stairs he became afraid
and told Galle that he could not comply as it was dangerous for him to do so. Galle took the wrist
watch and went downstairs with a light in his right hand, but returned because he was ordered by the
men outside to put out the light. When he went down again he was followed by Alvarez. There he
met the appellant.

Appellant Moreno asked Alvarez for Del Rosario and ordered Galle to go with him outside. Galle
refused and so Moreno struck him. The Galle said: "You can do anything you want." Whereupon,
shots were heard and Galle fell down.

Heddy del Rosario sounded the alarm, but Moreno shouted: "Stop that sounding and put out the
light." When the light was about to be put out, another shot was fired which entered the room where
Olimpia Alvarez was, and so Alvarez ran and jumped to the other side of the barbed wire fence, then
went down to a brook and hid in a bamboo grove.

The next morning, at about 6 o'clock, Moreno came again with his men and started firing many shots
at the house. Sometime later, Alvarez was able to count more than two hundred empty shells in the
yard. During the firing that morning Alvarez and his daughter were able to escape by the back yard
to about two hundred meters away where they took a vinta and went to Talisayan. Alvarez saw
Galle's house burning.

Within the house ten persons were killed, Otto Galle, his wife Ines, Eduardo del Rosario, Heddy del
Rosario, Nene del Rosario, Fred del Rosario, two maids Alejandra and Gregoria, Cristino Geronimo
and Andres Fabian. According to Elena Casongcay, a maid who was able to witness the proceeding
from a hidden place near the fence, after the assailants had looted the house of its many personal
belongings, Moreno ordered his men to burn it. Blas Francisco, a worker in the service of Galle and
who had survived from that holocaust, substantially corroborated both Alvarez and Elena
Casongcay.
On April 22, 1944, appellant also took active part in the arrest in Labuan of Eulogio and Dionisio Biel
and of Enrique Fargas, made by a group of Japanese and Filipino soldiers. The two Biels were
arrested because of the help they were giving to the guerrillas. The three arrested persons were at
about 4 o'clock in the afternoon taken in a truck to San Ramon Penal Colony and on April 28 they
were seen by Filoteo being escorted by Japanese soldiers on a truck bound for the City Hall Building
of Zamboanga. None of them were ever heard of or seen alive since then. These facts are proven by
the testimonies of Patrocinio Vda. de Biel, Agueda Vda. de Biel, Romula Biel, Filoteo and Mamerto
de Leon.

In the morning of February 11, 1944, another patrol of armed Japanese and "Kaigun Juitai" Filipino
soldiers, led by appellant as one of the leaders, arrived at the house of Venancio Ventura in
Boongan, Isabela de Basilan, Zamboanga. Several persons in the house were called by the
members of the patrol for investigation. After Eduardo Ventura, one of the members of the patrol,
had started to make investigation about the guerrillas and their activities in the place, shots were
fired from a nearby hill directed towards the patrol, the members of which laid flat on the ground and
returned the shots. The firing lasted almost half an hour. While the firing was going on, Prudencio an
Raymundo Nonial ran away to a nearby bush and were able to escape. After the shooting had
ceased, Moreno and his companions continued investigating Agustin and Claro Nonial regarding the
whereabouts of Ramon and Miguel Nonial, lieutenant and surgeon respectively of the guerrillas at
Bangue. Because of their denials, they were slapped and struck with fist blows. Agustin Ventura,
Venancio Ventura, Claro Nonial, Agustin Nonial, Agustin Laracochea and Victor Garcia were
ordered to march in single file. After they walked for about thirty meters, Eduardo Ventura ordered
them to turn to the left and on appellant's order, he machine-gunned them all. Agustin and Claro
Nonial were instantly killed, while the four others were wounded. The left arm of Laracochea was
later amputated.

The above facts were testified to by Agustin Laracochea, Prudencio Nonial, Venancio Ventura, and
Victor Garcia.

During the first week of August, 1944, Toribio Timonel, Candido Cabrera and Daniel del Rio, all
imprisoned guerrillas, were investigated by appellant, who took part in the maltreatment of the first
two. Ramon Camagay and Hermenegildo A. Santos testified to these facts. Since then these three
guerrillas were never seen nor heard of anymore.

The trial court found the appellant guilty of treason, complexed with multiple murder of fifteen
persons, and sentenced him to suffer the penalty of death in the manner prescribed by law and to
pay a fine of P10,000 to pay indemnity of P2,000 to each of heirs of Otto Galle, Ines Galle, Eduardo
del Rosario, Heddy del Rosario, Nene del Rosario, Fred del Rosario, maid Alejandra, maid Gregoria,
Cristino Geronimo, Andres Fabian, Eulogio Biel, Dionisio Biel, Enrique Fargas, Agustin Nonial and
Claro Nonial, and to pay the costs.

Counsel for the appellant assign in their brief eight alleged errors of the trial court. We shall now
consider them.

The trial court erred in denying the petition of appellant for the postponement of the hearing
to enable his counsel to prepare this defense properly, a right which is granted him by our
fundamental laws.

At the start of the trial, appellant's counsel moved for the postponement of the hearing in order to
prepare properly for the defense, stating:
 Your honor, please. — My service was just hired by the family of the accused, so we ask for
the postponement of the trial of the case in order to prepare properly our defense. (1).

The petition was not granted. The accused was arraigned and the trial proceeded.

Appellant now invokes the provision of section 7 of Rule 114, which reads, as follow:

SEC. 7. Time to prepare for trial. — After a plea of not guilty, except when the case is on
appeal from the justice of the peace, the defendant is entitled to at least two days to prepare
for trial unless the court for good cause shown shall allow further time.

The prosecution contends that appellant cannot invoke the above provision, because the petition
was made before the arraignment, and the proper time for filing the petition is after arraignment and
a plea of not guilty, and not before. The prosecution contends further that, from what appears in the
transcript, counsel has waived the right for postponement because, when asked whether he had any
objection to the prosecution introducing its evidence, he answered: "Yes, Your Honor without
prejudice to reserve our right to ask for the postponement for the presentation of the evidence for the
defense." (2).

There cannot be any question that a petition or a motion for postponement of hearing can be filed
before or after arraignment. The proper time for filing said petition or motion is not provided for in
section 7 of Rule 114, which is only intended to guaranty that "after a plea of not guilty, . . . the
defendant is entitled to at least two days to prepare for trial.

There is conflict of opinion as to whether defendant's counsel made expressed waiver of his petition
for postponement.

The majority had voted affirmatively. Although the majority vote appears to be supported by the
wording of counsel's statement in the lower court, the writer's dissenting vote was cast on the ground
that said statement should be interpreted jointly with the petition for postponement and the
statements made by the court, the fiscal and the accused's counsel, made before and after the
statements in question, and all said circumstances when considered make the waiver at least
doubtful.

II

The trial court erred in denying the petition of appellant for the voluntarily inhibition of the trial
judge who tried this case for the simple reason that they had already formed a biased
opinion and therefore could not render an impartial judgment. (1).

Because of the fact that Judge Florentino Saguin one of the member of the trial court had sentenced
appellant for murder based on the same facts as alleged in count number 4 of the information for
treason, which was later on eliminated, appellant's counsel moved for the voluntary inhibition of said
judge to sit in this treason case, and now complains that his motion was denied.

The complaint is groundless. Counsel was not able to invoke any provision of law in support of his
motion. As a matter of fact, there is none. The petition was addressed to the discretion of Judge
Saguin, and Judge Saguin acted properly and wisely in sitting in this case.

It is not contended that Judge Saguin was disqualified under any specific provision of law.
Consequently, or not to take cognizance of a case, does not depend upon the discretion of a judge
not legally disqualified to sit in a given case. It is his duty not sit in its trial and decision if legally
disqualified; but if the judge is not disqualified, it is a matter of official duty for him to proceed with the
trial and decision of the case. He cancelled not shirk the responsibility without the risk of being called
upon to account for his dereliction.

III

Trial court erred in abusing too much his discretion and by assuming the role of the
prosecution and converting our courts of justice into that of an inquisitorial tribunal. (1).

The reasons pointed out in appellant's brief do not justify his complaint.

There is nothing on record to show that anyone of the judges of the trial court attempted to help the
prosecution. The questions propounded by the judge, subject of appellant's complain, appeared to
have been intended to elicit the truth from the witnesses. The inquisitiveness complained of by
appellant's counsel did not have the purpose of unduly harming the substantial rights of the accused.
It was only to be expected from judges who, with full consciousness of their responsibilities, could
not easily be satisfied with incompleteness and obscurities in the testimonies.

With regards to the resolution sustaining an objection which does not appear in the transcript to have
been made, the prosecution believes that the transcript need not contain a complete account of what
actually transpired.

Accepting that the lower court erred in this respect, appellant has not shown that the error had
adversely affected him in a substantial manner. In the absence of such a showing, further discussion
on the question is unnecessary.

IV

The trial court erred in admitting Exhibits A, B, and C. (1).

The admissibility of Exhibits A, B and C has been established by the testimony of Patrocinio Vda. de
Biel, Mamerto de Leon and Ramon Camagay.

The trial court erred in denying petition of appellant for an ocular inspection of the place of
Otto Galle. (1).

There is not enough showing that the trial court erred in refusing defendant's request for an ocular
inspection of the Galle plantation.

Whether such an ocular inspection should have been made or not, rested upon the discretion of the
trial court. In the instant case there is no showing that the trial court committed a grave abuse of
discretion.

VI

The trial court erred in giving credit to the testimony of the witnesses for the prosecution and
disregarded the testimony of the witnesses for the defense.
 VII

The trial court erred in finding appellant herein guilty of the crime charged.

VIII

The trial court erred in holding appellant guilty and responsible for the crime of high treason
complexed with multiple murders, and in not acquitting him. (1).

This court is fully satisfied that the findings of fact of the trial court are substantially supported by the
evidence on record. This conclusion disposes of the appellant's contentions as to the last three
alleged errors of the lower court. The appellant admitted that he is a Filipino citizen.

Upon the facts proved we find that appellant is guilty of the crime of treason as punished under
article 114 of the Revised Penal Code.

A majority voted for the affirmance of the appealed judgment, while there are minority members who
voted that appellant be sentenced to reclusion perpetua. The writer, as a result of his position
regarding the non-postponement of the trial in the lower court. The final result is to modify the
judgment.

Accordingly, appellant is sentenced to reclusion perpetua and to pay a fine of P10,000 and the
costs. Under the ruling in People vs. Amansec (80 Phil. 424, 435) he is also ordered to pay an
indemnity of P90,000 at the rate of fifteen persons: Otto Galle, Ines Galle, Eduardo del Rosario,
Heddy del Rosario, Nene del Rosario, Fred del Rosario, maids Alejandra and Gregoria, Cristino
Geronimo, Andres Fabian, Eulogio Biel, Dionisio Biel, Enrique Fargas, Agustin Nonial and Claro
Nonial. With these modifications the appealed judgment is affirmed.

Moran, C.J., Paras, Bengzon, Briones and Montemayor, JJ., concur.

Separate Opinions

OZAETA, J., concurring:

This case was deliberated upon and voted on October 12, 1948; but as the decision will be
promulgated during my absence, I desire to record now my vote for the affirmance of the death
penalty imposed by the People's Court upon the appellant.

Pablo, M., Voto por la confimacion de la sentencia.

Tuason, J., I vote for affrimance.

Republic of the Philippines

SUPREME COURT
Manila
 THIRD DIVISION

G.R. No. 156284             February 6, 2007

AUGUSTO GOMEZ, as Special Administrator of the Intestate Estate of Consuelo

Gomez, Petitioner,
vs.
MARIA RITA GOMEZ-SAMSON, MARCIAL SAMSON, JESUS B. GOMEZ, and the REGISTER
OF DEEDS OF PASIG and MARIKINA, RIZAL, Respondents.

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

AUGUSTO GOMEZ, as Special Administrator of the Intestate Estate of Consuelo

Gomez, Petitioner,
vs.
ARISTON A. GOMEZ, SR. (who died during the pendency of the cases below and substituted
by his surviving wife, LUZ BAYSON GOMEZ, and children namely: ARISTON B. GOMEZ, JR.,
MA. RITA GOMEZ-SAMSON, JESUS B. GOMEZ, MA. TERESA G. BLOOM, MARIANO B.
GOMEZ, and CARLOS B. GOMEZ) and ARISTON B. GOMEZ, JR., Respondents.

DECISION

CHICO-NAZARIO, J.:

Which came first, the chicken or the egg?

This age-old question has spurned millions of debates in scientific and religious circles, and has
stimulated the imagination of generations of children and adults. Many profess that they are certain
of the answer, and yet their answers are divergent.

The case at bar involves a similarly baffling question, but in significantly lesser proportions of
philosophical mystery. Petitioner claims that, in the two Deeds of Donation he is impugning, the
signatures of the donee were jotted down before the bodies of the Deeds were typewritten.
Respondents maintain that the bodies of the Deeds were encoded first, and then, a clashing
presentation of expert witnesses and circumstantial evidence ensued. Petitioner’s expert claims she
is certain of the answer: the signature came first. Respondents’ expert, on the other hand, says that
it is impossible to determine which came first accurately. As both the trial court and the Court of
Appeals ruled in favor of respondents, petitioner is furious how these courts could adopt an opinion
that was "neither here nor there."

However, as it is with the chicken and egg riddle, is the person certain of which came first
necessarily the one who is more credible?

This is a Petition for Review on Certiorari of the Decision1 and Resolution2 dated 4 September 2002
and 27 November 2002, respectively, of the Court of Appeals in CA-G.R. CV No. 40391 affirming the
Joint Decision of the Regional Trial Court (RTC) of Pasig City dated 8 April 1992 in Civil Cases No.
36089 and No. 36090.

The facts of the case, as summarized by the Court of Appeals, are as follows:
On February 15, 1980, [petitioner] instituted these cases, to wit: (1) Civil Case No. 36089, entitled:
"Augusto Gomez, as Special Administrator of the Intestate Estate of Consuelo Gomez, Plaintiff,
versus Maria Rita Gomez-Samson, Marcial Samson, Jesus B. Gomez, and the Registers of Deeds
of Pasig and Marikina, Rizal, Defendants"; and (2) Civil Case No. 36090, entitled: "Augusto Gomez,
as Special Administrator of the Intestate Estate of Consuelo Gomez, Plaintiff, versus Ariston Gomez,
Sr., and Ariston B. Gomez, Jr., Defendants", both in the Regional Trial Court, Pasig City.

CONSUELO, ARISTON, SR. and Angel, all surnamed Gomez, were sister and brothers,
respectively. MARIA-RITA Gomez-Samson, JESUS Gomez and ARISTON Gomez, JR. are the
children of ARISTON, SR. while AUGUSTO Gomez is the child of Angel.

In Civil Case No. 36089, plaintiff AUGUSTO alleged in his complaint that CONSUELO, who died on
November 6, 1979, was the owner of the following real properties:

"(a) A parcel of land, with all the improvements thereon, situated in Marikina, Metro Manila,
covered by Transfer Certificate of Title No. 340233 in her name, x x x;

"(b) A parcel of land, with all the improvements thereon, situated in Marikina, Metro Manila,
covered by Transfer Certificate of Title No. 353818 in her name, x x x,"

"(c) A parcel of land, with all the improvements thereon, situated in Pasig, Metro Manila,
covered by Transfer Certificate of Title No. 268396 in her name, x x x;"

that after the death of Consuelo, defendants Rita and Jesus fraudulently prepared and/or caused to
be prepared a Deed of Donation Intervivos; that in the said document, Consuelo donated the above
described properties to defendants Rita and Jesus; that the said defendants forged or caused to be
forged the signature of the donor, Consuelo; that the notarial acknowledgement on the said
document was antedated to April 21, 1979; that on the basis of the said document defendants
sought the cancellation of the certificates of title in the name of Consuelo and the issuance of new
ones in the names of defendants Rita and Jesus.

On the basis of the foregoing, plaintiff prayed that the Deed of Donation Intervivos be declared false,
null and void ab initio, and/or be nullified; that TCT Nos. 340233, 353818, and 268396 be reinstated
or be replaced by titles in the name of the Intestate Estate of Consuelo Gomez; and, that defendants
be ordered to pay damages, by way of attorney’s fees and expenses of litigation plus costs.

On April 24, 1980, private defendants, and nominal defendants Registers of Deeds of Pasig and
Marikina, Rizal, filed their common answer, denying the material allegations in the complaint and
asserting that a copy of the deed of donation was submitted to the Notarial Section of the CFI of
Quezon City as early as July 2, 1979; that the said document is valid and not a forgery or otherwise
subject to similar infirmity; that the said document being valid, the properties covered therein passed
in ownership to private defendants, as early as April 20, 1979; that defendants have the perfect and
absolute right to cause the cancellation of TCT Nos. 340233, 353818, and 26839 and request for the
issuance of new certificates of titles in their respective names; that they have the right to use, enjoy,
possess, dispose and own these properties; that no law was violated by the nominal defendants
when the old certificates of title were cancelled and new certificates were issued in the name of the
private defendants, hence, plaintiff has no cause of action against the nominal defendants neither
has the court jurisdiction over the foregoing issue.

Defendants thereafter prayed for moral damages of ₱2,000,000.00; compensatory damages of

₱1,000,000.00; exemplary damages of ₱500,000.00; attorney’s fees of ₱200,000.00; and that
individual plaintiff be made jointly and severally liable with the estate of Consuelo Gomez.
In Civil Case No. 36090, the same plaintiff alleged in his complaint that Consuelo was also the sole
and absolute owner of the following personal properties:

(a) Seventy-five (75) common shares of stock of V-Tri Realty, Inc. with a total par value of
₱75,000.00 and covered by Stock Certificate No. 003;

(b) Eleven thousand eight hundred fifty three (11,853) common shares of stock of First
Philippine Holdings Corporation with a total par value of ₱118,530.00 covered by Stock
Certificates Nos. A-02614 (7,443 shares) and A-02613 (2,040 shares) and A-09018 (2,370
shares);

(c) Jewelries and collector’s items, contained in Consuelo Gomez’s Safe Deposit Box No. 44
at the PCI Bank, Marikina Branch, which were inventoried on January 9, 1980 per Order of
the Court in Special Proceedings No. 9164;

(d) A four-door sedan 1978 Mercedes Benz 200 with Motor No. 11593810-050706,
Serial/Chassis No. 12302050-069893, Plate No. A6-252 and LTC Registration Certificate No.
0140373 valued at ₱200,000.00, more or less at the time Consuelo Gomez died;

(e) A four-door sedan 1979 Toyota Corona with Motor No. 12RM-031643, Serial/Chassis No.
RT-130-901150, Plate No. B-09-373 and LTC Registration Certificate No. 0358757, valued
at ₱50,000.00, more or less at the time Consuelo Gomez died;

(f) Two hundred thousand pesos (₱200,000.00) including accrued interests on money
market placement with the BA Finance Corporation per its promissory note No. BAT-0116
dated March 9, 1978.

that after the death of Consuelo, defendants fraudulently prepared and/or caused to be prepared a
Deed of Donation Intervivos; that in the said document Consuelo donated the above described
properties to defendants Ariston, Sr. and Ariston, Jr.; that the said defendants forged or caused to be
forged the signature of the donor, Consuelo; that the notarial acknowledgment on the said document
was antedated to April 21, 1979; that on the basis of the said document defendant Ariston, Sr., [in]
December 1978, effected or tried to effect a change of the LTC registration of the two (2) vehicles;
that defendant Ariston, Jr., for his part, pre-terminated the money market placements with BA
Finance and received checks in the sums of ₱187,027.74 and ₱4,405.56; that with the exception of
the jewelries, which are with the bank, defendant Ariston, Sr., has benefited and will continue to
benefit from the use of the two (2) vehicles and from the dividends earned by the shares of stocks.

On the basis of the foregoing, the plaintiff prayed that the Deed of Donation Intervivos be declared
false, null and void ab initio, and/or be nullified; that defendant Ariston, Sr., be ordered to deliver the
stock certificates, jewelries, collector’s items, and vehicles in his possession plus all the cash
dividends earned by the shares of stock and reasonable compensation for the use of the two (2)
motor vehicles; that defendant Ariston, Jr. be ordered to pay the amount of ₱191,533.00 received by
him from BA Finance, with interest from the time he received the amount until he fully pays the
plaintiff; and, damages, by way of attorney’s fees and expenses of litigation, plus costs.

On March 19, 1980, defendants Ariston, Sr. and Ariston Jr., filed their answer, denying the material
allegations in the complaint and asserting that a copy of the Deed of Donation was submitted to the
Notarial Section of the CFI of Quezon City as early as July 2, 1979; that the said document is valid
and not a forgery or otherwise subject to similar infirmity; that the said document being valid, the
properties covered therein passed in ownership to defendants, as early as April 20, 1979; and that
defendants have the perfect and absolute right to use, enjoy, possess and own these properties.
Defendants thereafter prayed for moral damages of ₱2,000,000.00; compensatory damages of
₱1,000,000.00; exemplary damages of ₱500,000.00; attorney’s fees of ₱200,000.00; and that
individual plaintiff be made jointly and severally liable with the estate of Consuelo Gomez.

On May 27, 1980, the plaintiff filed a Motion to Consolidate, in both cases, which the trial court in
Civil Case No. 36090 granted in its Order dated June 6, 1980. Whereupon, the records of Civil Case
No. 36090 were transmitted to the RTC, Branch 23.

After appropriate proceedings, the trial court directed the parties to submit their respective
memoranda thirty (30) days from their receipt of the transcript of stenographic notes.

In its joint decision dated April 8, 1992, the trial court dismissed the complaints.3

The dispositive portion of the RTC Joint Decision reads:

WHEREFORE, it is Ordered:

1. That the instant complaints be dismissed;

2. That the replevin bonds nos. 2223, 2224, 2225, and 2226 of the Stronghold Insurance
Company, Incorporated be cancelled;

3. That Augusto Gomez and the estate of the late Consuelo Gomez, jointly and solidarily,
should pay to Ariston Gomez, Jr. the following amounts:

Moral damages of ₱1,000,000.00;

Exemplary damages of ₱250,000.00

Attorney’s fees of ₱200,000.00

And costs of suit; with legal interest on all the amounts, except on costs and attorney’s fees,
commencing from February 15, 1980, until fully paid.4

Petitioner filed a Petition for Review with the Court of Appeals. The latter affirmed the RTC’s Joint
Decision in the 4 September 2002 assailed Decision, the dispositive portion of which reads:

WHEREFORE, the appealed decision is AFFIRMED in toto.5

Petitioner filed a Motion for Reconsideration, but the same was denied by the Court of Appeals in the
assailed Resolution dated 27 November 2002.

Petitioner filed the present Petition for Review on Certiorari, bringing forth before us the following
issues for our consideration:

1) Whether or not the instant petition presents several exceptions to the general rule that an
appeal by certiorari under Rule 45 may only raise questions of law and that factual findings
of the Court of Appeals are binding on this Honorable Court;
 2) Whether or not the Court of Appeals’ Decision is based on a misapprehension of facts and
on inferences that are manifestly mistaken, absurd or impossible;

3) Whether or not the Court of Appeals seriously erred in its finding of fact that Consuelo
Gomez herself paid the donor’s tax of the properties subject of the donation on 09 October
1979 when the evidence on record point to the contrary;

4) Whether or not the Court of Appeals seriously erred in giving credence to the testimony of
former judge Jose Sebastian, the Notary Public who notarized the assailed Deeds of
Donation;

5) Whether or not the Court of Appeals seriously erred in dismissing the irregularities
apparent on the face of the assailed Deeds of Donation as mere lapses of a non-lawyer who
prepared them;

6) Whether or not the Court of Appeals seriously erred in totally disregarding the very
unusual circumstances relative to the alleged totally execution and notarization of the
assailed Deeds of Donation;

7) Whether or not the Court of Appeals seriously erred and is manifestly mistaken in inferring
that respondents were able to sufficiently and substantially explain the reason for the belated
transfer of the pertinent properties covered by the assailed Deeds of Donation;

8) Whether or not the Court of Appeals seriously erred and is manifestly mistaken in not
giving due weight to the expert opinion of the NBI representative, which the lower court itself
sought; and

9) Whether or not the Court of Appeals seriously erred in not finding that the totality of
circumstantial evidence presented by petitioner produced a single network of circumstances
establishing the simulation and falsification of the assailed Deeds of Donation.6

As acknowledged by petitioner, findings of fact of the trial court, especially when upheld by the Court
of Appeals, are binding on the Supreme Court.7 Petitioner, however, seeks refuge in the following
established exceptions8 to this rule:

1) When the inference made is manifestly mistaken, absurd or impossible.9

2) When there is grave abuse of discretion in the appreciation of facts.10

3) When the judgment is based on a misapprehension of facts.11

4) Where the Court of Appeals manifestly overlooked certain relevant facts not disputed by
the parties and which, if properly considered, would justify a different conclusion;12 and

5) Where the facts set forth by the petitioner are not disputed by the respondent, or where
the findings of fact of the Court of Appeals are premised on absence of evidence but are
contradicted by the evidence of record. 13

Weight and Credibility of the Expert Witnesses

The core issue in this Petition, as in that in the lower courts, is whether petitioner was able to prove
that the Deeds of Donation were merely intercalated into two sheets of paper signed by Consuelo
Gomez (Consuelo).

The only direct evidence presented by petitioner on this matter is the testimony of Zenaida Torres,
Document Examiner14 of the National Bureau of Investigation (NBI). Respondents, on the other
hand, presented their own expert witness, Francisco Cruz, Chief of Document Examination15 of the
PC-INP Crime Laboratory. Other direct evidence presented by respondents includes testimonies
positively stating that the Deeds of Donation were signed by Consuelo in their completed form in the
presence of Notary Public Jose Sebastian. These testimonies are that of Jose Sebastian himself,
and that of several of the respondents including Ariston Gomez, Jr. (Ariston, Jr.), who allegedly
drafted said Deeds of Donation.

As the testimony of Zenaida Torres is the single most important evidence of petitioner, it is
imperative to examine the lengthy discussion of the trial court analyzing her testimony, and the
contradictory findings of Francisco Cruz.

Zenaida Torres’s testimony, as noted by the trial court, was that she had examined the two Deeds of
Donation, denominated as Documents No. 401 and No. 402, and her findings were that the
signatures therein were indeed those of Consuelo. However, she opined that Documents No. 401
and No. 402 were not typed or prepared in one continuous sitting because the horizontal lines had
some variances horizontally. Nevertheless, she admitted that the vertical lines did not show any
variance.

Zenaida Torres also testified that with respect to Document No. 401, the typewritten words
"Consuelo C. Gomez" were typed after the handwritten signature "Consuelo C. Gomez." This is
based on her analysis of the letter "o" in the handwritten signature, which touches the letter "n" in the
typewritten name "Consuelo C. Gomez." She could not, however, make any similar findings with
respect to Document No. 402, because the typewritten words "Consuelo C. Gomez" and the
handwritten signature "Consuelo C. Gomez" "do not even touch" in the latter document.

Zenaida Torres failed to convince the trial court that the Deeds of Donation were not prepared in one
sitting:

To start with, it is very significant that Torres herself admits that the signatures of Consuelo in the
Donations 401 and 402 are genuine.

(This is contrary to the allegations of Augusto in his complaint; wherein he alleged that the
signatures of Consuelo were forged. In fact, as per the allegations, in Augusto’s complaint, the
signatures were forged, after the death of Consuelo).

(In effect, Augusto is now trying to shift the thrust of his attack, to a scenario wherein Consuelo
allegedly signed two papers in blank, and thereafter, said Donations 401 and 402 were typed on
top.)

Furthermore, Torres fell apart during, cross-examination. Torres admitted that she had not taken any
specialized studies on the matter of "Questioned Documents," except on one or two seminars on
"Questioned Documents." She admitted that she had not passed the Board Exams, as a Chemist;
she further admitted that she has not written any thesis or similar work on the subject matter at
issue.
Regarding non-typing in one continuous sitting, she admitted that she had never seen the typewriter
used to type the Donations 401 and 402, nor even tried to get hold of it, before she made the report;
that there were no variances insofar as the vertical alignments of the typewritten documents were
concerned; that there were only variances insofar as the horizontal alignments are concerned; she
admitted that if anybody had wanted to incorporate a document into a blank sheet of paper, on top of
a signature, the normal step to be taken would be to be careful on horizontal alignment, which can
be seen via the naked eye; and not the vertical alignment. Yet, the vertical alignment, as admitted by
her, was perfect.

In fact, she had to admit that it is possible that if the paper roller is loose, the horizontal alignment
will have a variance; whereas, the vertical alignment would have no variance, and there would be
nothing sinister about this. She had to admit this, because she was confronted with an authority on
the matter, more particularly the book of Wilson Harrison (vide Exhibit "17"). She admitted that she
had not used bromide when she took the photographs of the two (2) Donations 401 and 402, which
photographs she later on enlarged. She admitted that when she had taken the photographs of the
two (2) Donations, she had not put the typewritten pitch measure on top. She admitted that when the
photographs were enlarged, the alignment of the typewritten words became distorted; more so when
a typewriter pitch measure is not used, when photographing the documents.

In effect, insofar as the issue of typewriting in one sitting or not, is concerned, the testimony of
Torres was completely discredited (Vide TSN of May 19, 1986).16

On the other hand, the trial court gave weight to the testimony of Francisco Cruz:

Cruz testified on this point that the Donations 401 and 402 were both typed in one continuous sitting.
He elucidated clearly on how he arrived at this conclusion.

To start with, he was able to determine that the typewriter used was the elite typewriter, because as
per Cruz, when his typewriting measuring the instruments were placed over the documents, there
were twelve (12) letters that went inside one inch, which is a characteristic of an elite typewriter.

Secondly, he noticed that the color tone of the typewriter ink is the same, thru the entire documents.

As per Cruz, this is another indication that the Donations 401 and 402 were prepared in one
continuous sitting, because, as per Cruz, if the typewriter is used one time and sometime after that,
the typewriter is used again, the color tone will most probably be different.

He further concluded that both the horizontal and vertical alignments are in agreement. He explained
how he arrived at this conclusion.

As per Cruz, by using an instrument which is a typewriting measuring instrument produced by the
Criminal Research Co., Inc. in the USA and placing said instrument to test the vertical alignment
from the top down to the bottom, there is a perfect vertical alignment.

In fact, as per Cruz, when he took photographs of the documents, he had already placed the
typewriting measuring instrument over the document and he showed to the court the enlarged
photographs, indicating clearly that all the vertical alignments are all in order.

He also found out that the horizontal and vertical alignments are in agreement.
He explained that the slight variances as to the spacing of the words "Know All Men By These
Presents" and the words "That I Consuelo C. Gomez, single, of legal age, Filipino, and a resident of
24 Pine Street, New Marikina Subdivision, Marikina", there is a slight disagreement in the spacing,
but not in the alignment.

He explained that the normal reason for such discrepancy in the spacing is because the typist
sometimes tries to push the variable spacer; the [button] on the left side of the roller, and if you press
that round [button], there will be a variance spacing namely one space, two spaces, and three
spaces; and these are not attached so there is a variable in the spacing.

In short, this was due to the pushing of the variable paper by the typist.

Furthermore, he emphasized that the left margins are aligned and this signifies that there was typing
in one continuous sitting, because if you type on a paper and re-insert it again, there are differences
in the left hand margin. All of his findings appear in the blow up photographs which were marked as
Exhibits "31" to "34".

He even pointed out the differences in the Jurat wherein admittedly, Judge Sebastian inserted the
date "21ST" and "1" (page number), "401" (document number), "I" (book number), and "82" (series);
and also his signature "Jose R. Sebastian" and his "PTR Number" (vide pages 12 to 19, TSN of April
25, 1982).

All attempts by opposite counsel to discredit the testimony of Cruz on this issue, proved futile.17

As stated above, petitioner also alleges that the signature "Consuelo C. Gomez" was written before
the typewritten name "Consuelo C. Gomez." In this second round of analysis of the respective
testimonies of Zenaida Torres and Francisco Cruz, the trial court arrived at the same conclusion:

[ZENAIDA TORRES’S] FINDINGS ARE BASED SOLELY ON A SINGLE HANDWRITTEN LETTER

"O", WHICH TOUCHES (DOES NOT EVEN INTERSECT) THE TYPEWRITTEN LETTER "N".
BASED ON THIS, WITHOUT MORE, TORRES CONCLUDED THAT THE TYPEWRITTEN NAME
"CONSUELO C. GOMEZ" CAME AFTER THE HANDWRITTEN SIGNATURE "CONSUELO C.
GOMEZ".

We need but cite authorities on the matter (with which Authorities Torres was confronted and which
authorities she had to admit), which read as follows:

The Intersection of Ink Lines with Typescript. It is often stated that is possible to determine whether
an ink line which intersects typescript was written before or after the typing. The theory is simple;
most typewriter inks are greasy and an ink line tends to shrink in width as it passes over a greasy
place on the paper. If, indeed, an ink line is observed to suffer a distinct reduction in width every time
it intersects the typescript it may safely be concluded that the ink line was written after the typescript.

In practice, however, ink lines written across typescript are rarely seen to suffer any appreciable
shrinkage in width, since the amount of oily medium transferred from the ribbon to the paper is rarely
sufficient to have any effect. Indeed, if the ink happens to be alkaline, surplus ink, instead of
shrinking, may spread out into the typescript to increase the width of the inkline at the intersection. In
the case the proof that the ink followed the typescript would be the presence of a swelling rather
than a shrinkage.
Experience has shown that it is rarely possible for any definite opinion as to the order of appearance
on the paper for intersecting ink lines and typescript to be justified on the [meager] amount of
evidence which generally available.

A similar state of affairs will be found to hold for carbon paper and waxer; which have much in
common with typewriter ribbons in the way the mark they make on paper react with intersecting ink
lines". (Wilson, Suspect Documents; Exhibits "19"; "19-A"; "37"; "37-D"; underscoring ours).

In fact, the very authority of Torres on the matter, states as follows:

"Sequence of Writing

Intersecting writing strokes may have distinctive patterns, depending upon the order of writing the
lapse of time between the two writings, the density of the two strokes and the kind of inks, writing
instruments, and paper used. With a binocular microscope or a hand-magnifier aided by skillfully
controlled light and photography, the true order of preparation may be revealed and demonstrated to
a lay observer.

What appears to be the obvious solution may not always be the correct answer. For example, the
line of deepest color usually appears on top even if it was written first. Careful study and testing is
necessary before reaching a conclusion. Some of the more common criteria for determining
sequence are considered in the following paragraphs.

If we considered the intersection of two writing strokes or the intersection of writing and typewriting
the majority of problems are covered. Substantial, repeated intersections of two writings offer a
higher probability of success than a single indifferent intersection, such as a weak stroke crossing
another which only very infrequently can produce a clear indication of the order of writing". (Exhibits
"V" and "V-1" (underscoring ours).18

The trial court again sided with Francisco Cruz who testified, citing authorities,19 that it is impossible
to determine accurately which came first, because there were no intersections at all.20 The trial court
added: "[i]n fact, common sense, without more, dictates that if there are no intersections (between
the typewritten and the handwritten words), it would be extremely difficult, if not impossible, to
determine which came first."21 The Court of Appeals found nothing erroneous in these findings of the
trial court.22

Petitioner claims that the testimony of Zenaida Torres, having positively maintained that the
handwritten signatures "Consuelo C. Gomez" in both Deeds of Donation were affixed before the
typewritten name of Consuelo C. Gomez, cannot possibly be overcome by the opinion of Francisco
Cruz that was "neither here not there."23

Petitioner also puts in issue the fact that Zenaida Torres was a court-appointed expert, as opposed
to Francisco Cruz who was merely designated by respondents. Petitioner also assails the credibility
of Francisco Cruz on the ground that he had once testified in favor of respondent Ariston, Jr.24

Finally, petitioner stresses that Zenaida Torres conducted her tests on the carbon originals of both
Deeds of Donation that were then in the possession of the Notarial Register of Quezon City. On the
other hand, Francisco Cruz conducted his tests, with respect to Document No. 401, on the original in
the possession of Ariston, Jr.
On the first point, we agree with petitioner that positive evidence25 is, as a general rule, more credible
than negative evidence.26 However, the reason for this rule is that the witness who testifies to a
negative may have forgotten what actually occurred, while it is impossible to remember what never
existed.27

Expert witnesses, though, examine documentary and object evidence precisely to testify on their
findings in court. It is, thus, highly improbable for an expert witness to forget his examination of said
evidence. Consequently, whereas faulty memory may be the reason for the negative testimonies
delivered by ordinary witnesses, this is unlikely to be so with respect to expert witnesses. While we,
therefore, cannot say that positive evidence does not carry an inherent advantage over negative
evidence when it comes to expert witnesses,28 the process by which the expert witnesses arrived at
their conclusions should be carefully examined and considered.

On this respect, Prof. Wigmore states that the ordinary expert witness, in perhaps the larger
proportion of the topics upon which he may be questioned, has not a knowledge derived from
personal observation. He virtually reproduces, literally or in substance, conclusions of others which
he accepts on the authority of the eminent names responsible for them.29 In the case at bar, the
expert witnesses cited sources as bases of their observations. Francisco Cruz’s statement that "no
finding or conclusion could be arrived at,"30 has basis on the sources presented both by him and by
Zenaida Torres. Both sets of authorities speak of intersecting ink lines. However, the typewritten
words "Consuelo C. Gomez" barely touch and do not intersect the handwritten signature Consuelo
C. Gomez in Document No. 401. In Document No. 402, said typewritten words and handwritten
signature do not even touch.

In the case at bar, therefore, the expert testimony that "no finding or conclusion can be arrived at,"
was found to be more credible than the expert testimony positively stating that the signatures were
affixed before the typing of the Deeds of Donation. The former expert testimony has proven to be
more in consonance with the authorities cited by both experts.

As regards the assertion that Zenaida Torres conducted her tests on the carbon originals of both
Deeds of Donation found in the notarial registrar, whereas Francisco Cruz merely examined the
original in the possession of Ariston, Jr. with respect to Document No. 401, suffice it to say that this
circumstance cannot be attributed to respondents. After the examination of the documents by
Zenaida Torres, fire razed the Quezon City Hall. The carbon originals of said Deeds were among the
documents burned in the fire. Petitioner never rebutted respondents’ manifestation concerning this
incident, nor accused respondents of burning the Quezon City Hall.

Other than the above allegations, petitioner’s attack on the entire testimony of Francisco Cruz
(including the part concerning whether the Deeds were typed in one continuous sitting) rests
primarily in the contention that, while Zenaida Torres was court-appointed, Francisco Cruz’s
testimony was solicited by respondents, one of whom had previously solicited such testimony for
another case.

In United States v. Trono,31 we held:

Expert testimony no doubt constitutes evidence worthy of meriting consideration, although not
exclusive on questions of a professional character. The courts of justice, however, are not bound to
submit their findings necessarily to such testimony; they are free to weigh them, and they can give or
refuse to give them any value as proof, or they can even counterbalance such evidence with the
other elements of conviction which may have been adduced during the trial. (Emphasis supplied.)
Similarly, in Espiritu v. Court of Appeals32 and Salomon v. Intermediate Appellate Court,33 this Court
held:

Although courts are not ordinarily bound by expert testimonies, they may place whatever weight they
choose upon such testimonies in accordance with the facts of the case. The relative weight and
sufficiency of expert testimony is peculiarly within the province of the trial court to decide,
considering the ability and character of the witness, his actions upon the witness stand, the weight
and process of the reasoning by which he has supported his opinion, his possible bias in favor of the
side for whom he testifies, the fact that he is a paid witness, the relative opportunities for study or
observation of the matters about which he testifies, and any other matters which serve to illuminate
his statements. The opinion of the expert may not be arbitrarily rejected; it is to be considered by the
court in view of all the facts and circumstances in the case and when common knowledge utterly
fails, the expert opinion may be given controlling effect (20 Am. Jur., 1056-1058). The problem of the
credibility of the expert witness and the evaluation of his testimony is left to the discretion of the trial
court whose ruling thereupon is not reviewable in the absence of an abuse of that
discretion. (Underscoring supplied.)

Thus, while the expert witness’ possible bias in favor of the side for whom he or she testifies, and the
fact that he or she is a paid witness, may be considered by the trial court, the latter should weigh the
same with all the other evidence adduced during trial, as well as with the witness’ deportment,
actions, ability, and character upon the witness stand. The trial court is consequently given the
discretion in weighing all these circumstances in its determination of the expert witness’ credibility,
as it is in a better position than the appellate courts to observe the demeanor of these witnesses. As
there is no evidence of abuse of discretion on the part of the trial court in such determination, the
latter is not reviewable by this Court.

Alleged patent irregularities on the face of the assailed Deeds of Donation

As previously mentioned, the testimony of Zenaida Torres constitutes the only direct evidence
presented by petitioner to prove that the Deeds of Donation were merely intercalated over the
signature of Consuelo. Petitioner, however, also presents the following circumstantial evidence and
arguments to prove the same, claiming that there are patent irregularities on the face of the assailed
Deeds of Donation:

1) Both deeds are each one-page documents contained in a letter size (8" ½" x "11") paper,
instead of the usual legal size (8" ½" x "14") paper, and typed single spaced, with barely any
margin on its four sides;34

2) In Doc. 401, three parcels of land located in two different municipalities were purportedly
donated to two donees in the same document;35

3) In Doc. 402, shares of stock in two corporations, jewelries and collector’s items in a bank
deposit box, two registered cars, cash and money placement in another bank, and a bodega
were donated to three donees in the same document;36

4) The bodega mentioned in Doc. No. 402 was not owned by Consuelo. If the Deeds were
executed by Consuelo, she would surely have known this fact as she was the treasurer of V-
TRI Realty Corporation;37

5) If Doc. 401 is superimposed on Doc. 402, the signature of Consuelo on both documents
appear almost in the same place;38
 6) The whole of both Deeds of Donation, including the notarial acknowledgement portion and
the TAN Numbers and Residence Certificates of the signatories, were typed with only one
typewriter. The only portions that seemed to have been typed with a different machine are
the date ("21st") below the acknowledgement and the filled-in numbers of the "Doc. No. ___;
Book No. ___; Page No. ___’" portion, the name "Jose R. Sebastian" above the words
NOTARY PUBLIC and the PTR Number with date and place of issue;39

7) The PTR Number and its date and place of issue appear in the right hand side of the
name and signature of Jose Sebastian, instead of below it;40

8) The inserted date (which was typed with the same machine used for typing the name of
notary public Jose Sebastian) is different from the date of the clause "In WITNESS
WHEREOF, the parties hereunto set their hands in Quezon City, on the 20th day of
April/1979" (which was typed with another machine; the one used in typing the body of the
deed and the body of the acknowledgment);41

9) The TAN Numbers and the Residence Certificate Numbers of the purported donor and
donees have already been typed with the same machine that was used in typing the body of
the deed and the body of the acknowledgement;42

10) It is highly questionable that a supposedly well-educated person like Ariston Gomez, Jr.
would not have thought of preparing at least five copies of each document as there were four
donees and one donor.43

The Court of Appeals ruled:

As to the alleged intercalation of the text of the deeds of donation above the supposedly priorly
affixed signature of CONSUELO on a blank sheet of bond paper, as shown by the one-page
document in a letter size paper, typed single space with barely any room left on the top, bottom and
left and right margins, as well as the lack of copies thereof, it has been explained that the same was
due to the fact that the said documents were prepared by defendant ARISTON, JR., a non-lawyer
inexperienced with the way such documents should be executed and in how many copies. x x x.

xxxx

Accordingly, it is not surprising that someone as unfamiliar and inexperienced in preparing a deed of
donation, or any deed of conveyance for that matter, as ARISTON, JR., prepared the documents
that are the subject matter of the case at bar in the manner that he did.44

Petitioner counters that the alleged irregularities "do not relate to the proper construction or manner
of writing the documents as would necessitate the expertise of a lawyer. Rather, they relate to
matters as basic as observing the proper margins at the top, left, right and bottom portions of the
document, using the appropriate paper size and number of pages that are necessary and observing
appropriate spacing and proper placement of the words in the document."

All these alleged irregularities are more apparent than real. None of these alleged irregularities
affects the validity of the subject Deeds of Donation, nor connotes fraud or foul play. It is true that the
condition and physical appearance of a questioned document constitute a valuable factor which, if
correctly evaluated in light of surrounding circumstances, may help in determining whether it is
genuine or forged.45 However, neither the expert witnesses, nor our personal examination of the
exhibits, had revealed such a questionable physical condition.
Legal documents contained in 8 ½ x 11 paper are neither unheard of, nor even uncommon. The
same is true with regard to single-spaced legal documents; in fact, petitioner’s Supplemental
Memorandum was actually single-spaced.

That the subject Deeds of Donation appear to have conveyed numerous properties in two sheets of
paper does not militate against their authenticity. Not all people equate length with importance. The
simplicity and practicality of organizing the properties to be donated into real and personal
properties, and using one-page documents to convey each category, are clearly appealing to people
who value brevity. The same appeal of conciseness had driven petitioner to make a single-spaced
Supplemental Memorandum whose only object was to summarize the arguments he has laid down
in the original twice-as-long Memorandum,46 an endeavor that we, in fact, appreciate.

The allegation concerning the use of one typewriter to encode both Deeds of Donation, including the
notarial acknowledgment portion, TAN, and residence certificates, is purely paranoia. Being in the
legal profession for many years, we are aware that it is common practice for the parties to a contract
to type the whole document, so that all the notary public has to do is to input his signature, seal, and
the numbers pertaining to his notarial registry.

The use of single-paged documents also provides an explanation as to why the PTR number and
the date and place of issue are found in the right-hand side of the name and signature of Jose
Sebastian, instead of below it. We agree with respondents that it is irrational, impractical, and
contrary to human experience to use another page just to insert those minute but necessary details.
Such use of single-paged documents, taken together with the fact that the Deeds of Donation are of
almost the same length, are also the reasons why it does not baffle us that the signatures of
Consuelo appear at around the same portions of these Deeds. Indeed, we would have been
suspicious had these documents been of varying lengths, but the signatures still appear on the same
portions in both.

The only observations concerning the physical appearance of the subject Deeds of Donation that
truly give us doubts as to their authenticity are the relatively small margins on the sides of the same,
the lack of copies thereof, and the alleged inclusion in Document No. 402 of a bodega allegedly not
owned by Consuelo. However, these doubts are not enough to establish the commission of fraud by
respondents and to overturn the presumption that persons are innocent of crime or wrong.47 Good
faith is always presumed.48 It is the one who alleges bad faith who has the burden to prove the
same,49 who, in this case, is the petitioner.

The small margins in the said Deeds of Donation, while indicative of sloppiness, were not
necessarily resorted to because there was a need to intercalate a long document and, thus, prove
petitioner’s theory that there were only two pieces of paper signed by Consuelo. Respondents admit
that the use of one sheet of paper for both Deeds of Donation was intentional, for brevity’s sake.
While the ensuing litigation could now have caused regrets on the part of Ariston, Jr. for his decision
to sacrifice the margins for brevity’s sake, there still appears no indication that he did so maliciously.
Indeed, law professors remind bar examinees every year to leave margins on their booklets. Despite
the importance examinees put into such examinations, however, examinees seem to constantly
forget these reminders.

The testimonies of Ariston Gomez, Sr. (Ariston, Sr.), Ariston, Jr., Maria Rita Gomez-Samson (Maria
Rita), and Notary Public Jose Sebastian tend to show that there were one original and two copies
each of Documents No. 401 and No. 402. Of these documents, it was the original of Document No.
402 and a duplicate original of Document No. 401 which were actually presented by petitioner
himself before the trial court, through the representative of the notarial registrar of Quezon City, who
testified pursuant to a subpoena. The latter two documents were submitted to the NBI for
examination by petitioner and by the NBI Handwriting Expert, Zenaida Torres.

Petitioner testified that he could not find copies of the two Deeds of Donation with the Bureau of
Records Management. He, however, was able to find certified true copies of these documents with
the Register of Deeds and the Land Transportation Commission.50

According to the testimony of Ariston, Jr., the original of Document No. 401 was separated from the
brown envelope, containing the other copies of the Deeds of Donation, which Jose Sebastian left
with respondents, as they were trying to fit the same into a certain red album. On the other hand,
Maria Rita testified that one copy each of the duplicate originals of Documents No. 401 and No. 402
were lost. Maria Rita explained that when she was about to leave for Spain to visit her sister in
Palma de Mallorica, her father, Ariston, Sr., gave her the brown envelope, containing duplicate
originals of the Deeds of Donation in question, to show to her sister in Palma de Mallorica.51 Maria
Rita explained in detail how her handbag was stolen as she was praying in a chapel while waiting for
the connecting flight from Madrid to Palma de Mallorica. The handbag allegedly contained not only
duplicate originals of the said Deeds of Donation, but also other important documents and her
valuables. Maria Rita presented the police report of the Spanish police authorities52 and her letter to
the Valley National Bank of U.S.A.,53 regarding these losses.

Notary public Jose Sebastian retained two copies of the Deeds of Donation in his files. Jose
Sebastian explained that he did so because Consuelo wanted two copies of each document. Since
Jose Sebastian had to transmit to the Notarial Registrar duplicate originals of the document, he had
to photocopy the same to keep as his own copies, and transmit to the Notarial Registrar whatever
duplicate original copies he had. Jose Sebastian did not notice that, instead of retaining a duplicate
original of Document No. 402, what was left with him was the original.54

While it cannot be denied that the unfortunate incidents and accidents presented by respondents do
arouse some suspicions, the testimonies of Ariston, Jr., Maria Rita, and Jose Sebastian had been
carefully examined by the trial court, which found them to be credible. Time and again, this Court
has ruled that the findings of the trial court respecting the credibility of witnesses are accorded great
weight and respect since it had the opportunity to observe the demeanor of the witnesses as they
testified before the court. Unless substantial facts and circumstances have been overlooked or
misunderstood by the latter which, if considered, would materially affect the result of the case, this
Court will undauntedly sustain the findings of the lower court.55

All petitioner has succeeded in doing, however, is to instill doubts in our minds. While such approach
would succeed if carried out by the accused in criminal cases, plaintiffs in civil cases need to do
much more to overturn findings of fact and credibility by the trial court, especially when the same had
been affirmed by the Court of Appeals. It must be stressed that although this Court may overturn a
conviction of the lower court based on reasonable doubt, overturning judgments in civil cases should
be based on preponderance of evidence, and with the further qualification that, when the scales
shall stand upon an equipoise, the court should find for the defendant.56

Respondents also point out that Ariston, Jr., the person they claim to have prepared said Deeds of
Donation, was never confronted during the trial with all these alleged irregularities on the face of the
Deeds of Donation. As such, the trial court was never given a chance to determine whether Ariston,
Jr. would have given a rational, logical and acceptable explanation for the same.

Respondents are correct. As the alleged irregularities do not, on their faces, indicate bad faith on the
part of respondents, it is necessary for petitioner to confront respondents with these observations.
Respondents would not have thought that the Deeds of Donation would be impugned on the mere
basis that they were written on short bond paper, or that their margins are small. Respondents were
thus deprived of a chance to rebut these observations by testimonies and other evidence, and were
forced to explain the same in memoranda and briefs with the appellate courts, where these
observations started to crop up. It would have been different if the date of the documents had been
after Consuelo’s death, or if there had been obvious alterations on the documents. In the latter
cases, it would have been the responsibility of respondents’ counsel to see to it that Ariston, Jr.
explain such inconsistencies.

Payment of donor’s tax before the death of Consuelo

In ruling that there had been no antedating or falsification of the subject Deeds of Donation, the
Court of Appeals was also persuaded by the following evidence: (1) the finding that it was the
deceased CONSUELO herself who paid the donor’s tax of the properties subject of the donation, as
evidenced by the Philippine Commercial and Industrial Bank (PCIB) check she issued to the
Commissioner of the Bureau of Internal Revenue (BIR) on 9 October 1979, in the amount of
₱119,283.63, and (2) the testimony and certification dated 22 November 1979 of Jose Sebastian
that the said documents were acknowledged before him on 21 April 1979.57 Respondents had
presented evidence to the effect that Consuelo made an initial payment of ₱119,283.63 for the
Donor’s Tax on 9 October 1979, while respondent Ariston, Sr., supplied the deficiency of ₱2,125.82
on 4 December 1979.

Petitioner claims that the Court of Appeals seriously erred in its finding of fact that Consuelo herself
paid the donor’s tax of the properties subject of the donation on 9 October 1979, as the evidence
allegedly shows that the Donor’s Tax was paid on 4 December 1979, or a month after Consuelo’s
death.58 Petitioner thereby calls our attention to his Exhibit "O," a certificate dated 4 December 1979
issued by Mr. Nestor M. Espenilla, Chief of the Transfer Taxes Division of the BIR, confirming the
payment of the donor’s tax. The certificate reads:

LUNGSOD NG QUEZON

December 4, 1979

TO WHOM IT MAY CONCERN:

This is to certify that MS. CONSUELO C. GOMEZ of 8059 Honradez St., Makati, Metro Manila, paid
donor’s tax on even date in the amount of ₱121,409.45 inclusive of surcharge, interest and
compromise penalties as follows:

RTR No. 2814499, PTC Conf. Receipt No. 2896956 – ₱119,283.63

RTR No. 2814500/PTC Conf. Receipt No. 2896957 – 2,125.82
---------------
Total
₱121,409.45

This certification is issued upon request of Mr. Ariston Gomez, Sr.

(SGD)NESTOR M. ESPENILLA
Chief, Financing, Real Estate and Transfer

Taxes Division
TAN E2153-B0723-A-759
Petitioner highlights the fact that the Revenue Tax Receipts (RTRs) and the Confirmation Receipts
for the payments supposedly made by Consuelo on 9 October 1979 and by respondent Ariston, Sr.
on 4 December 1979 bore consecutive numbers, despite being issued months apart. Petitioner also
points to the fact that the tax was stated in the certification to have been paid "on even date" --
meaning, on the date of the certification, 4 December 1979.

Petitioner presented further the check used to pay the Donor’s Tax, which, petitioner himself admits,
was signed by Consuelo.60 Petitioner draws our attention to the words "RECEIVED – BIR, P.T.C.
CUBAO BR., NON-NEGOTIABLE, T-10 DEC. 4." Petitioner concludes that Philippine Trust
Company Bank, Cubao Branch, received the check on 4 December 1979 as a collection agent of the
BIR.

Respondents, on the other hand, presented the following documents to prove payment of the
Donor’s Tax before the death of Consuelo on 6 November 1979:

1) The covering letter to the BIR Commissioner dated 24 September 1979 and prepared by
Mariano A. Requija, accountant of Consuelo and Ariston, Jr., which included the Donor’s Tax
Return for the properties covered by the two Deeds of Donation. The letter was stamped
received by the BIR Commissioner on 8 October 1979;61

2) Another letter dated 24 September 1979 executed by Mariano A. Requija containing the
breakdown of the donations received by the BIR on 8 October 1979;62

3) A schedule of gifts which was also dated 24 September 1979 and which was also
received by the BIR on 8 October 1979, enumerating all the donated properties included in
the Deeds of Donation.63

4) The Donor’s Tax Return covering the properties transferred in the two Deeds of Donation
filed, received, and receipted by the BIR Commissioner on 8 October 1979;64

5) The 9 October 1979 PCIB Personal Check No. A144-73211 issued by Consuelo in favor
of the BIR Commissioner in the amount of ₱119,283.63.65

6) An "Authority to Issue Tax Receipt" issued by the BIR Commissioner on 21 October 1979
for a total amount of ₱119,283.63.66

Before proceeding further, it is well to note that the factum probandum67 petitioner is trying to
establish here is still the alleged intercalation of the Deeds of Donation on blank pieces of paper
containing the signatures of Consuelo. The factum probans68 this time around is the alleged payment
of the Donor’s Tax after the death of Consuelo.

Firstly, it is apparent at once that there is a failure of the factum probans, even if successfully
proven, to prove in turn the factum probandum. As intimated by respondents, payment of the
Donor’s Tax after the death of Consuelo does not necessarily prove the alleged intercalation of the
Deeds of Donation on blank pieces of paper containing the signatures of Consuelo.

Secondly, petitioner failed to prove this factum probandum.

Ariston, Jr. never testified that Consuelo herself physically and personally delivered PCIB Check No.
A144-73211 to the BIR. He instead testified that the check was prepared and issued by Consuelo
during her lifetime, but that he, Ariston, Jr., physically and personally delivered the same to the
BIR.69 On the query, however, as to whether it was delivered to the BIR before or after the death of
Consuelo, petitioner and respondents presented all the conflicting evidence we enumerated above.

The party asserting a fact has the burden of proving it. Petitioner, however, merely formulated
conjectures based on the evidence he presented, and did not bother to present Nestor Espenilla to
explain the consecutive numbers of the RTRs or what he meant with the words "on even date" in his
certification. Neither did petitioner present any evidence that the records of the BIR Commissioner
were falsified or antedated, thus, letting the presumption that a public official had regularly performed
his duties stand. This is in contrast to respondents’ direct evidence attesting to the payment of said
tax during the lifetime of Consuelo. With respect to respondents’ evidence, all that petitioner could
offer in rebuttal is another speculation totally unsupported by evidence: the alleged fabrication
thereof.

Credibility of Jose Sebastian

Petitioner claims that no credence should have been given to the testimony of the notary public,
Jose Sebastian, as said Jose Sebastian is the same judge whom this Court had dismissed from the
service in Garciano v. Sebastian.70 Petitioner posits that the dismissal of Judge Jose Sebastian from
the service casts a grave pall on his credibility as a witness, especially given how, in the course of
the administrative proceedings against him, he had lied to mislead the investigator, as well as
employed others to distort the truth.

Petitioner further claims that the reliance by the Court of Appeals on the 22 November 1979
Certification by Jose Sebastian is misplaced, considering the questionable circumstances
surrounding such certification. Said certification, marked as petitioner’s Exhibit "P," reads:

November 22, 1979

HON. ERNANI CRUZ PAÑO

Executive Judge
CFI – Quezon City

Sir:

In connection with the discrepancies noted by the Acting Clerk of Court in my notarial report
pertaining to another document submitted to the Notarial Section last July 2, 1979 I have the honor
to certify that documents Nos. 401 and 402 referring to Donations Inter Vivos executed by Donor
Consuelo C. Gomez in favor of Donees Ma. Rita Gomez-Samson et. al. were signed in my presence
by all the parties and their instrumental witnesses on April 21, 1979 in my office. I hereby further
certify that said two documents among other documents were reported by me in accordance with
law on July 2, 1979, for all legal intents and purposes.

In view of the above, it is respectfully requested that the certified true copies of the said two
documents officially requested by one of the Donees be issued.

Very respectfully,

(Sgd.) JOSE R. SEBASTIAN

Notary Public71
Petitioner points out that the Certification was made after the death of Consuelo, and claims that the
same appears to be a scheme by Jose Sebastian to concoct an opportunity for him to make mention
of the subject Deeds of Donation intervivos, "despite the plain fact that the latter had utterly no
relation to the matter referred to by Jose Sebastian in the opening phrase of the letter."72

It is well to note that, as stated by the Court of Appeals, Jose Sebastian was originally a witness for
petitioner Augusto. As such, Rule 132, Section 12, of the Rules of Court prohibits petitioner from
impeaching him:

SEC. 12. Party may not impeach his own witness. – Except with respect to witnesses referred to in
paragraphs (d) and (e) of section 10, the party producing a witness is not allowed to impeach his
credibility.

A witness may be considered as unwilling or hostile only if so declared by the court upon adequate
showing of his adverse interest, unjustified reluctance to testify, or his having misled the party into
calling him to the witness stand.

The unwilling or hostile witness so declared, or the witness who is an adverse party, may be
impeached by the party presenting him in all respects as if he had been called by the adverse party,
except by evidence of his bad character. He may also be impeached and cross-examined by the
adverse party, but such cross-examination must only be on the subject matter of his examination-in-
chief.

This rule is based on the theory that a person who produces a witness vouches for him as being
worthy of credit, and that a direct attack upon the veracity of the witness "would enable the party to
destroy the witness, if he spoke against him, and to make him a good witness, if he spoke for him,
with the means in his hands of destroying his credit, if he spoke against him."73

Neither had there been declaration by the court that Jose Sebastian was an unwilling or hostile
witness. Jose Sebastian is also neither an adverse party, nor an officer, director nor a managing
agent of a public or private corporation or of a partnership or association which is an adverse party.74

Be that as it may, even if Jose Sebastian had been declared by the court as an unwilling or hostile
witness, the third paragraph of Section 12 as quoted above, in relation to Section 1175 of the same
Rule, only allows the party calling the witness to impeach such witness by contradictory evidence or
by prior inconsistent statements, and never by evidence of his bad character. Thus, Jose
Sebastian’s subsequent dismissal as a judge would not suffice to discredit him as a witness in this
case.

We have also ruled in People v. Dominguez,76 which, in turn cited Cordial v. People,77 that:

(E)ven convicted criminals are not excluded from testifying in court so long as, having organs of
sense, they "can perceive and perceiving can make known their perceptions to others."

The fact of prior criminal conviction alone does not suffice to discredit a witness; the testimony of
such a witness must be assayed and scrutinized in exactly the same way the testimony of other
witnesses must be examined for its relevance and credibility. x x x. (Emphasis supplied.)

The effect of this pronouncement is even more significant in this case, as Jose Sebastian has never
been convicted of a crime before his testimony, but was instead administratively sanctioned eleven
years after such testimony. Scrutinizing the testimony of Jose Sebastian, we find, as the trial court
and the Court of Appeals did, no evidence of bias on the part of Jose Sebastian. On top of this, Jose
Sebastian’s testimony is supported by the records of the notarial registry, which shows that the
documents in question were received by the Notarial Registrar on 2 July 1979, which was four
months before the death of Consuelo on 6 November 1979.

Alleged unusual circumstances relative to the execution and notarization of the subject Deeds of
Donation

The last set of circumstantial evidence presented by petitioner to prove the alleged intercalation of
the subject Deeds of Donation on two blank papers signed by Consuelo are the following allegedly
unusual circumstances relative to the execution and notarization of the said deeds. According to
petitioner:

1. The signing and acknowledgement of the Deeds of Donation on 21 April 1979 is highly
improbable and implausible, considering the fact that Consuelo left the same day for the
United States on a pleasure trip;78

2. The flight time of Consuelo on 21 April 1979 was 11:00 a.m.. And even assuming that the
flight time was 1:00 p.m., as contended by respondents, the ordinary boarding procedures
require Consuelo to be at the airport at least two hours before flight time, or 11:00 a.m..
Petitioner points out that respondents’ alleged time frame (from 7:00 a.m. to 11:00 a.m.) is
not enough to accomplish the following acts: respondents and Consuelo leaving Marikina at
7:00 a.m. and arriving at the notary public Jose Sebastian’s house at Pag-asa, Q.C. at about
8:00 a.m. to 8:30 a.m.; some "small talk with Jose Sebastian; Jose Sebastian examining the
documents; Jose Sebastian having a closed meeting with Consuelo to discuss the
documents; Jose Sebastian reading the documents to respondents line by line and asking
the latter whether they accepted the donation; Jose Sebastian typing the notarial entries; the
parties signing the deeds; Jose Sebastian talking privately with Consuelo, who paid the
former in cash for his services; Ariston Gomez, Jr. driving Consuelo and other respondents
back to Marikina, and dropping the other respondents at their respective residences; picking
up Consuelo’s luggage; and Ariston Gomez, Jr. bringing Consuelo to the Manila International
Airport;79

3. It is contrary to human experience for Consuelo and respondents not to make a prior
arrangement with the notary public Jose Sebastian and instead take a gamble on his being
in his office;80

4. It is illogical for Consuelo to rush the execution of the donations when she was in fact
planning to come back from her pleasure trip shortly, as she did;81 1awphi1.net

5. The choice of a notary public from Quezon City is highly suspect, when Consuelo and
respondents reside in Marikina. It is also illogical that Consuelo would have chosen a notary
public whom she met only on the same day she executed the Deeds, especially when
Consuelo had a regular lawyer whose notarial services she availed of only two weeks before
her death;82

6. It is improbable that Consuelo paid Jose Sebastian in cash, for there is no reason for her
to carry much cash in peso when she was about to leave for the United States in that same
morning;83

7. Maria Rita’s residence certificate was obtained from Manila when she is a resident of
Marikina. Also, Maria Rita obtained said residence certificate on 20 April 1979, and yet Maria
 Rita testified that she was surprised to know of the donation only on 21 April 1979.84 Also
suspicious are the circumstances wherein Ariston Gomez, Jr. obtained a residence
certificate on 17 April 1979, when he testified that he knew of the schedule for signing only
on 20 April 1979, and Consuelo had two residence certificates, as she used different ones in
the Deeds of Donation and the document notarized two weeks before her death;85  1awphi1.net

8. If Consuelo was really frugal, she could have also made a will;86

9. All the instrumental witnesses of the Deeds of Donation are biased, being themselves
either donees of the other Deed of Donation, or a relative of a donee;87 and

10. Respondents were not able to sufficiently and substantially explain the belated transfer of
the properties covered by the assailed Deeds of Donation. Petitioner points to Maria Rita’s
testimony that the real properties were transferred after the death of Consuelo. While
respondents assert that the personal properties were transferred to them prior to Consuelo’s
death, evidence shows otherwise.88

This Court does not find anything suspicious in a person wanting to transfer her properties by
donation to her loved ones before leaving for abroad via an airplane. While many believe these days
that taking the plane is the "safest way to travel," this has not always been the case. The fear that
planes sometimes crash, now believed to be irrational, has always been at the back of the minds of
air travelers. Respondents maintain in their testimonies before the RTC that the Deeds were
completed to the satisfaction of Consuelo only on 20 April 1979. She allegedly wanted to have the
documents signed and notarized before she left for abroad.

The claim that the flight time of Consuelo was at 11:00 a.m. is hearsay thrice removed, and thus
cannot be given any weight. Petitioner claims that he was told by his twelve-year old son that
Consuelo was leaving at 11:00 a.m. on 21 April 1979, such son having learned about this from the
maid of Consuelo when the son called Consuelo’s house that day.89 This is in contrast to Maria Rita’s
positive testimony that the flight time was at 1:00 p.m. on the same day.90 Maria Rita joined Consuelo
in this flight.

As regards petitioner’s claim that respondents’ alleged time frame in the morning of 21 April 1979
was insufficient, this Court is not convinced. As held by the Court of Appeals, petitioner did not
present any proof that it had been impossible to perform those alleged acts within three hours.91 As
argued by respondents, the one-paged documents can be read aloud without difficulty within five to
ten minutes each. We can also take judicial notice of the fact that traffic is usually very minimal on
Saturday mornings, and was much less of a problem in 1979.

Respondents and Consuelo’s decision not to make a prior arrangement with notary public Jose
Sebastian does not surprise us either. Respondents explain that, since the telephone lines of
Marikina were inefficient in the year 1979, they decided to take a calculated gamble. It is not at all
unreasonable to expect that Jose Sebastian would be at his house on a Saturday, at around 8:00
a.m.

With respect to the choice of a notary public from Quezon City, we find the explanation relative
thereto satisfying. We quote:

Moreover, ARISTON, JR. disclosed that they could not have gone to the notary public whom his
aunt, CONSUELO, knew because she did not want to go to said notary public since our cousins
whom she didn’t like had access to him and she wanted to keep the execution of the deeds
confidential. Thus:
Q: And also you know for a fact that your auntie had a regular Notary Public for the preparation and
notarization of legal documents in the name of Atty. Angeles, now Congressman Angeles of
Marikina, is that correct?

A: It depends on the frame of time. Yes and No. He was a regular Notary Public, but way before that
date. But after that, he fall out of graces of my auntie. He was not anymore that regular.

Q: How long before April 30 did he fall out of graces of your auntie, year before that?

A: I don’t specifically remember but what I do know is such confidential document like this, we would
not really go to Angeles.

Q: Even for notarization purposes?

xxxx

A: Even for notarization purposes, no sir. This confidential nature, no.

ATTY. FERRY:

Are you saying that your auntie trusted more Sebastian than Angeles?

A: No. He is trusting her own experience about Atty. Angeles.

Q: Are you saying that she had sad experience with Atty. Angeles in connection with the latter’s
performance of his duty as Notary Public, as a lawyer?

A: That is what she told me.

Q: When was that?

A: She will tell me that regularly.

xxxx

ATTY. FERRY:

Q: Mr. Gomez, you testified last April 6, 1989 that after the execution of the two documents in
question dated April 20, 1979, Atty. Angeles fell out of the graces of your auntie and you added that
as a consequence, your auntie did not avail of the notarial services of Atty. Angeles when it comes
to confidential matters, is that correct?

A: Yes. After that particular execution of the Deed of Donation Inter Vivos, Atty. Angeles especially if
the documents are confidential in nature.

Q: You used confidential matters, did your aunt spell out what these confidential matters are?

A: This particular document, Deed of Donation was under the category "confidential".
Q: But did you discuss this, the matter of notarizing this document by Atty. Angeles with your auntie
such that she made known to you this falls under confidential matters?

A: Yes we did.

Q: So in other words, you intimated to your auntie that Atty. Angeles would possibly notarized these
documents?

A: No.

Q: How did it come about that your auntie gave that idea or information that these documents should
be notarized by other notary public other than Angeles, because it is confidential?

A: It came from her.

Q: Yes, did she tell you that?

ATTY. GUEVARRA:

That’s what he said. "It came from her".

ATTY. FERRY:

My question is, how did it come about your auntie told you that these two documents are of
confidential matters?

A: Well, no problem. I said that it has to be notarized, she said more or less, "ayaw ko kay Atty.
Angeles".

Q: She said that?

A: That’s correct.

Q: And you were curious to know why she told you that?

A: No. I knew why she told me that. She said that Atty. Angeles….well, my cousins whom she didn’t
like have access to Atty. Angeles.92

The Court of Appeals had fully explained that the belated transfer of the properties does not affect
the validity or effects of the donations at all, nor dent the credibility of respondents’ factual
assertions:

Per our perusal of the records, we find that the defendants were able to sufficiently and substantially
explain the reason for the belated transfer of the pertinent properties, i.e., after the death of
CONSUELO. Thus, the testimony of MA. RITA revealed, insofar as the real properties are
concerned, the following:

"Q: Since you were already aware as you claim that as early as when you went to the States in the
company of your auntie, Consuelo Gomez, these 2 parcels of land together with the improvements
consisting of a house were transferred to you, you did not exert efforts after your arrival from the
States to effect the transfer of these properties?

"A: No, I did not.

"Q: Why?

"A: Well, for delicadeza. My auntie was still alive. I am not that aggressive. Tita Elo told me "akin na
iyon" but I did not transfer it in my name. "Siempre nakakahiya."

"Q: That was your reason for not effecting the transfer of the properties in your name?

"A: Yes, that was my reason.

"Q: Did you not know that the deed supposedly executed by Consuelo Gomez was a donation inter
vivos, meaning, it takes effect during her lifetime?

"A: I do not know the legal term donation inter vivos. I have also my sentiment. Tita Elo was very
close to us but I did not want to tell her: "Tita Elo, ibigay mo Na iyan SA akin. Itransfer mo na sa
pangalan ko." It is not my character to be very aggressive."

In addition, Article 712 of the Civil Code provides:

"ART. 712. Ownership is acquired by occupation and by intellectual creation.

"Ownership and other real rights over property are acquired and transmitted by law, by donation, by
testate and intestate succession, and in consequence of certain contracts, by tradition.

"They may also be acquired by means of prescription."

Clearly, the issuance of the titles in the names of the defendants is not the mode by which they
acquired ownership of the properties, but rather the fact that the same were donated to them. The
circumstance that aforesaid properties were actually transferred in the names of the donees only
after the death of the donor, although the deeds of donation were dated April 21, 1979, does not by
itself indicate that the said documents were antedated.93

Petitioner seems to unduly foreclose the possibility – one which experience tells us is not a rare
occurrence at all – that donations are often resorted to in place of testamentary dispositions, often
for the purpose of tax avoidance. Such properties usually remain in the donor’s possession during
his or her lifetime, despite the fact that the donations have already taken effect. Nevertheless, the
purpose of utilizing donation as a mode to transfer property is not in issue here.

Finally, the allegations concerning the payment of Jose Sebastian in cash, the suggestion that
Consuelo should have also made a will, and the claim that all the instrumental witnesses of the will
are biased, are purely speculative.

In sum, all these circumstantial evidence presented by petitioner had failed to comply with the strict
requirements in using circumstantial evidence, for which Section 4, Rule 133 of the Rules of Court
provides:
SEC. 4. Circumstantial evidence, when sufficient. – Circumstantial evidence is sufficient for
conviction if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.

While the above provision seems to refer only to criminal cases, it has been pointed out that in some
jurisdictions, no distinction is made between civil and criminal actions as to the quality of the burden
of establishing a proposition by circumstantial evidence. In such jurisdictions the rule is generally
stated to be that the circumstances established must not only be consistent with the proposition
asserted but also inconsistent with any other rational theory.94

In all, what petitioner has succeeded in doing is to raise doubts in our minds. Again, while such
approach would succeed if carried out by the accused in criminal cases, plaintiffs in civil cases need
to do much more to overturn findings of fact and credibility by the trial court, especially when the
same had been affirmed by the Court of Appeals.

Leniency in the weighing of petitioner’s evidence could only produce a mere equipoise:

When the scales shall stand upon an equipoise and there is nothing in the evidence which shall
incline it to one side or the other, the court will find for the defendant.

Under this principle, the plaintiff must rely on the strength of his evidence and not on the
weaknesses of the defendant’s claim. Even if the evidence of the plaintiff may be stronger than that
of the defendant, there is no preponderance of evidence on his side if such evidence is
insufficient in itself to establish his cause of action."95 (Emphasis supplied.)

Petitioner’s liability for damages

The last part of the trial court’s decision, which was affirmed in toto by the Court of Appeals, involves
the award of damages in favor of Ariston, Jr. The trial court held Augusto Gomez and the estate of
the late Consuelo "jointly and solidarily liable" for moral and exemplary damages, and attorney’s
fees.

The trial court held:

The records are clear, that plaintiff was so desperate for evidence to support his charges, that he
repeatedly subpoenaed the defendants themselves; at the risk of presenting evidence contradictory
to his legal position and which actually happened, when plaintiff subpoenaed Ariston Gomez Jr.,
Ariston Gomez Sr., and Maria Rita Gomez-Samson, as his witnesses.

All told, the court finds plaintiff was motivated not by a sincere desire to insure the totality of the
estate of Consuelo, but rather by his desire to cause injury to defendants, and to appropriate for
himself and the rest of the Gomez brothers and nephews, other than the donees, properties which
were clearly validly disposed of by Consuelo, via Donations Inter Vivos.96
Our own examination of the records of the case, however, convinces us of the contrary.
Respondents never assailed the authenticity of petitioner’s evidence, and merely presented their
own evidence to support their assertions. As previously stated, petitioner’s evidence had
successfully given us doubts as to the authenticity of the subject Deeds of Donation. While such
doubts are not enough to discharge petitioner’s burden of proof, they are enough to convince us that
petitioner’s institution of the present case was carried out with good faith. The subpoenas directed
against respondents merely demonstrate the zealous efforts of petitioner’s counsel to represent its
client, which can neither be taken against the counsel, nor against its clients.

While, as regards the alleged intercalation of the Deeds of Donation on two blank sheets of paper
signed by Consuelo, the burden of proof lies with petitioner, the opposite is true as regards the
damages suffered by the respondents. Having failed to discharge this burden to prove bad faith on
the part of petitioner in instituting the case, petitioner cannot be responsible therefor, and thus
cannot be held liable for moral damages.

This Court has also held that, in the absence of moral, temperate, liquidated or compensatory
damages, no exemplary damages can be granted, for exemplary damages are allowed only in
addition to any of the four kinds of damages mentioned.97

The attorney’s fees should also be deleted, as it was supposed to be the consequence of a clearly
unfounded civil action or proceeding by the plaintiff.

WHEREFORE, subject to the modification of the assailed Decision, the Petition is DENIED. The
Joint Decision of the Regional Trial Court of Pasig City in Civil Cases No. 36089 and No. 36090,
which was affirmed in toto by the Court of Appeals, is AFFIRMED with MODIFICATION that the
following portion be DELETED:

3. That Augusto Gomez and the estate of the late Consuelo Gomez, jointly and solidarily should pay
to Ariston Gomez, Jr. the following amounts:

Moral damages of ₱1,000,000.00;

Exemplary damages of ₱250,000.00

Attorney’s fees of ₱200,000.00

And costs of suit; with legal interest on all the amounts, except on costs and attorney’s fees,
commencing from February 15, 1980, until fully paid.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 157766               July 12, 2007

ERNESTO L. SALAS, Petitioner,
vs.
STA. MESA MARKET CORPORATION and the HEIRS OF PRIMITIVO E.
DOMINGO,** Respondents.

DECISION

CORONA, J.:

This petition for review on certiorari1 seeks to set aside the April 30, 2001 decision of the Court
Appeals (CA) in CA-G.R. CV No. 508882 and its April 3, 2003 resolution denying reconsideration.

In a letter-agreement3 dated October 15, 1984, Primitivo E. Domingo handed the management of his
estate, including the respondent corporation Sta. Mesa Market Corporation (SMMC), to petitioner
Ernesto L. Salas.4 As estate manager, petitioner was primarily tasked to ensure SMMC's continued
viability and profitability by redeveloping the Sta. Mesa market and restructuring the corporation's
finances.5 Domingo, on the other hand, bound himself to transfer (on or before June 30, 1985)6 30%
of SMMC's subscribed and paid-up capital stock to petitioner as part of his compensation. But, if
petitioner failed to achieve a monthly market revenue of at least ₱350,000, he would be obliged to
return the shares of stock of SMMC to Domingo.7

On December 28, 1984, Domingo, as chairman of SMMC, and petitioner, in his personal capacity
and as chairman of Inter-Alia Management Corporation (Inter-Alia), formalized their agreement
under a property and financial management contract (management contract).8

Shortly after the execution of the contract, SMMC, under petitioner's management, leased the Sta.
Mesa market to Malaca Realty Corporation (Malaca).9 But it became apparent soon thereafter that
Malaca was financially incapable of improving and expanding the existing facilities of the Sta. Mesa
market.10 In fact, it was unable to pay the monthly rent.11 Thus, SMMC terminated its lease contract
with Malaca.12 As a result, its board of directors became dissatisfied with petitioner's management of
the corporation. Thereafter, it ended its management contract with petitioner (and Inter-Alia).13

On June 8, 1987, petitioner filed an action for specific performance and damages14 against SMMC
and Domingo15 in the Regional Trial Court (RTC) of Quezon City.16 He alleged that SMMC's monthly
market revenue had surpassed ₱350,000 yet Domingo refused to comply with his obligation to
deliver 30% of the subscribed and paid-up capital stock of SMMC to him.17

In his answer,18 Domingo argued that petitioner was not entitled to the shares of SMMC. On the
contrary, the corporation suffered additional losses and incurred new liabilities (which respondents
consistently itemized in their pleadings) amounting to ₱1,935,995.06 over the twenty-one (21)
months petitioner was managing it.19

On August 21, 1995, the RTC rendered a decision in favor of petitioner.20 The trial court considered
copies of SMMC's audited financial statements which showed an improvement in the corporation's
monthly average gross income (from ₱251,790 in 1984 to ₱409,794 in 1985). It found that petitioner
not only increased SMMC's monthly gross income but also exceeded the target monthly gross
income of ₱350,000.21 Hence, it ordered respondent heirs to deliver the shares of SMMC (equivalent
to 30% of its total subscribed and paid-up capital stocks) to petitioner.22

Respondent heirs appealed the judgment of the RTC to the CA. On April 30, 2001, the appellate
court rendered its decision. It found that the trial court erred in admitting petitioner's documentary
evidence. According to the CA, petitioner failed to prove the authenticity of the audited financial
statements. He did not present a representative of SMMC's external auditor, Bejarin Jimenez & Co.,
to testify on the genuineness and due execution of the audited financial statements of SMMC.
Instead, petitioner presented a memorandum prepared by a member of his management team
attesting to the increase in the corporation's monthly market revenue. For this reason, the appellate
court ruled that the audited financial statements were not only self-serving but also hearsay.23 Thus,
the CA reversed the RTC decision and dismissed petitioner's complaint.

Petitioner moved for reconsideration but his motion was denied.24 Thus, this petition.

Petitioner avers that Amado Domingo, a vice-president of SMMC and an heir of the deceased
Primitivo E. Domingo, testified that the audited financial statements presented in court were copies
of those submitted by SMMC to the Bureau of Internal Revenue (BIR) and the Securities and
Exchange Commission (SEC) for purposes of tax payments and compliance with reportorial
requirements, respectively.25 Therefore, Amado Domingo, in effect, admitted the genuineness and
due execution of the documents which made authentication unnecessary.

Respondents, on the other hand, insist that the audited financial statements were inadmissible in
evidence due to lack of proper authentication.26

We agree with the CA.

The documents in question were supposedly copies of the audited financial statements of SMMC.
Financial statements (which include the balance sheet, income statement and statement of cash
flow) show the fiscal condition of a particular entity within a specified period. The financial
statements prepared by external auditors who are certified public accountants (like those presented
by petitioner) are audited financial statements. Financial statements, whether audited or not, are, as
general rule, private documents.27 However, once financial statements are filed with a government
office pursuant to a provision of law,28 they become public documents.29

Whether a document is public or private is relevant in determining its admissibility as evidence.

Public documents are admissible in evidence even without further proof of their due execution and
genuineness. 30 On the other hand, private documents are inadmissible in evidence unless they are
properly authenticated.31 Section 20, Rule 132 of the Rules of Court provides:

Section 20. Proof of private documents. Before any private document offered as authentic is

received in evidence, its due execution and authenticity must be proved either:

a. By anyone who saw the document executed or written; or

b. By evidence of the genuineness of the signature or handwriting of the maker.

Any other private document need only be identified as that which it is claimed to be.

Petitioner and respondents agree that the documents presented as evidence were mere copies of
the audited financial statements submitted to the BIR and SEC. Neither party claimed that copies
presented were certified true copies32 of audited financial statements obtained or secured from the
BIR or the SEC which under Section 19(c), Rule 132 would have been public documents. Thus, the
statements presented were private documents. Consequently, authentication was a precondition to
their admissibility in evidence.
During authentication in court, a witness positively testifies that a document presented as evidence
is genuine and has been duly executed33 or that the document is neither spurious nor counterfeit nor
executed by mistake or under duress.34 In this case, petitioner merely presented a memorandum
attesting to the increase in the corporation's monthly market revenue, prepared by a member of his
management team. While there is no fixed criterion as to what constitutes competent evidence to
establish the authenticity of a private document, the best proof available must be presented.35 The
best proof available, in this instance, would have been the testimony of a representative of SMMC's
external auditor who prepared the audited financial statements. Inasmuch as there was none, the
audited financial statements were never authenticated.

Nevertheless, petitioner insists on the application of an exception to this rule: authentication is not
necessary where the adverse party has admitted the genuineness and due execution of a
document.36 The fact, however, was that nowhere in his testimony did Amado Domingo categorically
admit the authenticity of the copies of the audited financial statements. He only testified that SMMC
regularly submitted its audited financial statements to the BIR and SEC.37 There was never any
admission that the documents presented by petitioner were true or faithful copies of those submitted
to the BIR and the SEC.38 1avvphi1

WHEREFORE, the petition is hereby DENIED. The April 30, 2001 decision and April 3, 2003
resolution of the Court of Appeals in CA-G.R. CV No. 50888 are hereby AFFIRMED.

Costs against the petitioner.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

G.R. No. 179709               July 6, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
FILOMENO MAYINGQUE, GREGORIO MAYINGQUE, and TORIBIO MAYINGQUE y
SANICO, Defendants-Appellants.

DECISION

BERSAMIN, J.:

Appellants Toribio Mayingque alias Loloy (Toribio), Gregorio Mayingque alias Gorio (Gregorio), and
Filomeno Mayingque alias Boy Roti (Filomeno) appeal the decision promulgated on June 15, 2007
by the Court of Appeals (CA)1 affirming their conviction for murder that the Regional Trial Court
(RTC), Branch 275, in Las Piñas City handed down, penalizing each with reclusion perpetua, and
ordering them to pay ₱50,000.00 to the heirs of deceased Edgardo Sumalde Tusi (Edgardo), and
₱20,000.00 as burial expenses to the wife of Tusi. 2
The appellants and one Edwin Macas (Edwin) were indicted for the murder of Edgardo under the
amended information dated June 28, 1999,3 charging them thus:

That on or about the 30th day of May, 1999, in the City of Las Piñas, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating
together and all of them mutually helping and aiding one another, without justifiable motive with
intent to kill and by means of treachery and taking advantage of superior strength, did then and there
willfully, unlawfully and feloniously assault, attack and stab one EDGARDO SUMALDE TUSI, with
deadly weapons (knife and bolo), hitting the victim on the different parts of his body, thereby inflicting
upon the latter multiple mortal stab wounds, which directly caused his death.

CONTRARY TO LAW.

At arraignment, the appellants pleaded not guilty to the information, as amended. Edwin remained at
large to this date.4

Evidence of the Prosecution

The Prosecution presented Salvacion Tusi (Salvacion), wife of Edgardo, the victim, who testified that
she knew the appellants because they usually had their drinking sessions on Sundays at Edwin’s
place, which was beside her residence at Pedro Sabido Street, BF Resort Village, Las Piñas City;
that in one such drinking session, Edgardo, annoyed by the noise made by the appellants and
Edwin, was prompted to admonish them to tone down their voices; that the appellants and Edwin
resented Edgardo’s admonition;5 that while she and Edgardo were resting in front of their house at
around 5 pm on May 30, 1999, Toribio arrived and without saying anything stabbed Edgardo twice
on his side; that she shouted for help, but her cousin Ruben Bernal could not do anything because
Edwin, Filomeno and Gregorio had meanwhile joined Teofilo in assaulting Edgardo.6

Ruben Bernal and Jaime Bernal corroborated Salvacion’s recollection of the assault on Edgardo.
According to them, the appellants ganged up on Edgardo, with Teofilo wielding a kitchen knife with
which he stabbed Edgardo twice and Gregorio hacking Edgardo on the head with a bolo while
Filomeno and Edwin restrained Edgardo. They heard Edwin tell the appellants to ensure that
Edgardo was lifeless before leaving him.7

Dr. Romeo T. Salen, Medico Legal Officer of the Western Police District (now Manila Police District)
Crime Laboratory, appeared in court in representation of Dr. Emmanuel L. Aranas, and brought the
following documents: (a) Request for Examination on the Cadaver of the deceased transmitted by
the Las Piñas Police and received by Dr. Aranas; (b) Certification of Identification and Consent for
Autopsy signed by the brother of Edgardo; (c) Post Mortem Examination or Anatomical Sketch; (d)
Medico Legal Report; and (e) Death Certificate of Edgardo prepared by Dr. Aranas.8

Dr. Salen explained that based on Dr. Aranas’ written findings, Edgardo had sustained 12 wounds in
the head, neck and chest, eight of which had been fatal.9

Evidence of the Defense

For the Defense, the three appellants and one Agustin Tano (Tano) were presented as witnesses.

Tano was on his way home in late afternoon of May 30, 1999 when he saw Edgardo punch and then
hit Toribio with a lead pipe. He next saw Toribio retaliate by successively stabbing Edgardo with a
knife. Tano added that the other accused were not present during the incident.10
Filomeno narrated that on the day of the incident, he left his house at 9:00 am to attend the birthday
party of his nephew in Golden Gate, Moonwalk, Las Piñas City; that at 6:30 pm, his wife arrived at
Golden Gate, and begged him not to go home yet because Toribio had been involved in a fight with
Edgardo and in turn the family of Edgardo had threatened to retaliate against Toribio’s relatives to
avenge Edgardo’s death; that he and his wife thus remained in Golden Gate from May 30, 1999 to
July 28, 1999 out of fear that Edgardo’s relatives might retaliate against him although he had nothing
to do with Edgardo’s death;11 that it was when he visited Toribio in detention when a police officer
invited him for questioning regarding his supposed involvement in the May 30, 1999 incident; and
that he (Filomeno) was then immediately detained in the police station, but was later transferred to
the Las Piñas City Jail without any investigation being conducted.12

Gregorio attested that on the date of the incident, he was taking care of his two-month old grandson,
when his neighbor advised him to leave his house at once, because his son Toribio had been
involved in a fight; that he entrusted his grandson to the care of his neighbor to go to Antipolo City,
where his other son, Gregorio, Jr., was residing; that he stayed in Antipolo City for two months
because of fear of Toribio’s enemies in Las Piñas City; that when he returned to Las Piñas City on
July 28, 1999 to fetch his wife and daughter,13 policemen invited him for questioning; and that he was
then detained for his alleged involvement in the killing of Edgardo.14

Toribio stated that he was proceeding on foot towards Edwin’s place at around 5:00 pm on May 30,
1999, when he saw Edgardo, Ruben and Jaime drinking together; that the three hailed him and
invited him to drink with them; that although he declined the offer initially, he relented after Edgardo
got mad at him; that Edgardo then invited him to join them, but he declined the invitation and told
them that he was going somewhere else; that his refusal irked Edgardo, who warned him not be a
toughie; that Edgardo stood up and attacked him with a lead pipe, hitting him in the left arm; that his
injury left a scar of an inch on his left arm;15 that he ran towards Edwin’s place and stayed there for
about 20 minutes; that leaving Edwin’s house later on, he passed by the three, who were still
drinking; that Edgardo spotted him, held him by the collar, and punched him; that Ruben and Jaime
also hit him with a lead pipe and a wooden club (dos por dos), injuring his left chest; that he parried
their blows until they reached the street, where he fell on a small table used for selling Indian
mangoes; that he was able to pick up a small knife used for peeling the mangoes, and while he was
about to stand up from a prostrate position, he stabbed Edgardo on the head, neck and chest with
the knife; that he did not report the incident to the police, and, instead, went home; that he did not
anymore submit himself for medical attention, because his wounds were only slight; that he
surrendered to the Antipolo City police authorities eight days later, upon learning that the other
appellants had been implicated in Eduardo’s death and were being hunted down by the police.16

Ruling of the RTC

In its January 30, 2006 decision,17 the RTC found the appellants guilty of murder, and sentenced
each to suffer reclusion perpetua, and to pay to the heirs of the deceased ₱50,000.00 and to the
wife of the deceased ₱20,000.00 for the burial expenses.

The RTC supported the verdict with the following findings:

The self defense version of accused Toribio Mayingque is against the eye witness account of
prosecution witnesses who told the Court that about 5:00 in the afternoon of 30th day of May, 1999
Salvacion Tusi and her husband, the victim herein, were resting in front of their house located at
Pedro Sabido St. BF Resort Village, Las Piñas City, together with a cousin, Ruben Bernal.

Accused Toribio "Loloy" Mayingque arrived and without saying anything stabbed the victim two
times. Salvacion shouted for help while her cousin Ruben Bernal was about to help her husband but
Roly, Edwin Macas and Gregorio arrived and helped in the killing of the victim (TSN, p. 5, Sept. 6,
1999).

The four (4) continuously stabbed the victim with a bladed weapons (Ibid, p. 6). Three were
positively identified in court as the perpetrators, to wit: accused Toribio, Gregorio and Filomeno, all
surnamed Mayingque. Salvacion incurred expenses in the amount of ₱20,000.00 as a result of the
death of the victim.

The reason why they stabbed and killed the victim was because they resented the admonition by the
victim to them. Toribio, Filomeno and Gregorio always had a drinking spree in the place of Edwin
Macas every Sunday and were very noisy. The victim asked them not to be noisy (Ibid, p. 9).

The multiple wounds suffered by the victim even belies a any pretension of self defense. The victim
suffered 10 stab wounds and 2 incised wounds. In all, the victim suffered 12 wounds, to wit:

No. 1 Stab Wound, parietal region, measuring 4 by 0.5 cm right of the mid-sagittal line which
is on the right part of the head measuring 4 x .5 cm which is a superficial wound because
there was no other organ damaged and it is not a fatal injury. This is caused by a sharp
bladed weapon and that he pointed injury No. 1 in the Anatomical Sketch;

No. 2 Stab Wound, parietal region, measuring 2.5 by 0.2 cm, 10 cm right of mid-sagittal line,
he described that this wound is a superficial wound which is almost the same size of injury
No. 1 which was likewise caused by a sharp bladed weapon;

No. 3, stab wound, right orbital region, measuring 4 by 0.4 cm. 4 from the anterior midline, 6
cm deep, directed posterior wards and downwards, piercing the optic nerve and the adjacent
soft tissues and muscles which means from front to back and it pierced the optic nerve which
is responsible for the movement and for the eyes to see. Wound No. 3 is very damaging
because it will cause blindness to the right eye and if the bleeding is profuse and if no
medication is done, the patient could die. This is a fatal injury and is indicated in the
Anatomical Sketch;

No. 4, Incised wound, right temporal region, measuring 5 by 0.7 cm, 8 cm anterior midline.
This is an incised wound also a superficial injury caused by a sharp bladed instrument;

No. 5, Incised Wound, submental region, measuring 3 by 0.5 cm, 4 cm left of the anterior
midline. This wound is located on the chin a superficial and non fatal injury and this injury is
indicated in Exhibit "L" as injury No. 5;

No. 6, Stab wound, neck, measuring 1.5 by 1.5 cm, along the anterior midline, 7 cm deep,
directed posterior wards, downwards, and lateral wards, piercing the upper lobe of the left
lungs. This injury is located on the left side of the neck directed posterior ward or front to
back and the upper lobe of the left lung was destroyed. This wound is fatal and caused the
death of the victim. This injury is indicated in the Anatomical Sketch as Wound No. 6 and the
injury was caused by sharp bladed instrument;

No. 7, Stab Wound, neck, measuring 3.5 by 1.5 cm, along the anterior midline, 7 cm deep,
directed posterior wards, downwards and lateral wards, piercing the upper lobe of the left
lung. This injury is located on the middle part of the neck and injured a major organ which is
the lung and fatal, this is indicated in the Anatomical Sketch as Injury No. 7 and caused by a
sharp bladed instrument;
 No. 8, Stab Wound, left supraclavicular region, measuring 2.5 by 1.5 cm, 12 cm from the
anterior midline, 5 cm deep, directed posterior wards, downwards and medial wards, piercing
the upper lobe of the left lung. This wound is located at the clavicular which is the bone of
the chest and directly behind the clavicular is the lungs and this injury is fatal and could
cause the death of the victim and said injury is indicated in the Anatomical Sketch and the
injury was caused by a sharp bladed instrument;

No. 9, Stab wound, left clavicular region, measuring 2 by 0.5 cm. 9 cm. From the anterior
midline, 6 cm deep, directed poster wards, down wards and medial wards, passing thru the
1st left intercostals space, piercing the upper lobe of the left lung. This injury is located at the
clavicular region and destroys the upper lobe of the left lung and this is a fatal wound caused
by a bladed weapon. This injury is indicated in the Anatomical Sketch as Wound No. 9;

No. 10, Stab wound, left infraclavicular region, measuring 2 by 1 cm. 12 cm from the anterior
midline, 10 cm deep, directed posterior wards, downwards and medialwards passing thru the
2nd left intercostals space, piercing the upper lobe of the left lung. This injury is located at
the clavicular region directly behind is the lung and this injury is fatal caused by a bladed
instrument and the same is indicated in the Anatomical Sketch as Wound No. 10.

No. 11. Stab wound, sternal region, measuring 3 by 0.6 cm. Along the anterior midline, 10
cm. Deep, directed posteriorwards, downwards and lateralwards, piercing the upper lobe of
the right lung. This injury is on the external region so from the center to the outside it hits the
upper lobe of the right lung and this is a fatal wound and also indicated as Injury No. 11 in
the anatomical sketch.

No. 12, Stab wound, right mammary region, measuring 3 by 2.5, 4 cm from the anterior
midline, directed posteriorwards, downwards and to the right, fracturing the 3rd right thoracic
rib, piercing the pericardium and the right ventricle of the heart. This injury is located on the
right chest directed posteriorwards, downwards and fractured the third right thoracic rib and
hit the pericardium and the right ventricle of the heart on the middle and this wound was very
fatal and caused by a sharp bladed instrument and this injury is likewise indicated in the
Anatomical Sketch

According to Dr. Talen, the relative position of the assailant in inflicting wounds No. 7 to 10 most
probably was facing the victim and the trajectory is directed downwards and the infliction came from
above. Injury Nos. 1, 2, 4 and 5 were inflicted in any position. Wound No. 3 was inflicted from up to
down. Multiple stab wounds, head, neck and chest caused of death of the victim.

The foregoing 12 injuries of the victim belie the self defense of accused Toribio Mayingque. The
multiple injuries of the victim support the claim of conspiracy by the prosecution. Dr. Salen told the
Court that the different sizes of the wounds show that indeed more than one assailant inflicted the
wounds and more than one instrument used (TSN, pp. 32-33, Feb. 14, 2001). Moreover, all three
have been positively identified in court as the perpetrators. Thus, the Court can not accept the denial
and alibi by the other two co-accused, namely: Gregorio Mayingque and Filomeno Mayingque.

It is clear from the testimonies of prosecution witnesses that the accused treacherously attacked the
victim. They suddenly assaulted the victim. As held: "it is necessary to show that the aggressors
cooperated in such a way as to secure advantage from their superiority in strength. (People v.
Casey, see note 63, supra at 34 [1981] citing People v. Elizaga, 86 Phil. 365.) There must be proof
of the relative physical strength of the aggressors and the assaulted party or proof that the accused
simultaneously assaulted the deceased." (People v. Casey, see note 63, supra at 34 [1981] citing
People v. Bustos, et al., 51 Phil. 385; People vs. Rubia, et al., 52 Phil. 172, 176 [1928].)" (G.R. Nos.
120394-97, January 16, 2001, People vs. Danilo Pablo, Et Al.)18

Ruling of the CA

Through its decision dated June 15, 2007,19 the CA affirmed the RTC, giving the following
ratiocination:

The appeal is bereft of merit.

The testimonies of Salvacion, Ruben, and Jaime positively pointing to accused-appellant Loloy as
the one who stabbed Tusi twice with a kitchen knife along with accused-appellants Gorio as the one
who hacked Tusi on the head with a bolo and Boy Roti, as the one who held Tusi while the latter
was being hacked, which are bolstered by the medico legal findings that eight (8) out of twelve (12)
stabs and incise wounds sustained by Tusi are fatal wounds, belie accused-appellant Loloy’s
assertion of self defense.

Another factor which militates against accused-appellant Loloy’s claim of self defense are the facts
that he confessed his guilt in the course of his testimony before the lower court when he stated that
he surrendered to the Antipolo City Police authorities because he was conscience stricken by the
fact that he allegedly violated the penal and the divine laws when he stabbed Tusi successively to
get even with the latter, Ruben, and Jaime who were allegedly hitting him with a lead pipe and
wooden club, which is tantamount to retaliation rather than self defense; that he did not submit the
injuries on his left arm and chest to medical examination to at least clearly and convincingly
substantiate the alleged unlawful aggression on his person by Tusi, and that he pleaded not guilty
during the arraignment because his counsel advised him to do so, but deep inside his conscience,
he felt guilty as charged.

xxx when the accused invokes self-defense, it becomes incumbent upon him to prove by clear and
convincing evidence that he indeed acted in defense of himself. xxx

xxx

Moreover, the nature, number and location of the wounds sustained by the victim belie the assertion
of self-defense since the gravity of the said wounds is indicative of a determined effort to kill and not
just defend. The number of wounds was established by the physical evidence, which is a mute
manifestation of truth and ranks high in the hierarchy of trustworthy evidence. xxx

The distance between accused-appellant Boy Roti’s alleged whereabouts on May 30, 1999 and the
crime scene could be negotiated in thirty (30) minutes by a tricycle ride so much so that it was
physically possible for him to be present at the scene of the incident at that precise time. Aside from
his wife Lolita who started giving her direct testimony, but subsequently died, accused-appellant Boy
Roti could have presented his sister, Lina Mayingque, a certain Roberto Entosa, and his sister-in-law
(hipag) as witnesses to prove that he was in Golden Gate, Moonwalk, Las Piñas City all the time,
and to disprove the prosecution’s claim of his presence in BF Resort Village where Tusi was stabbed
to death on May 30, 1999. However, he did not do so. If accused-appellant Boy Roti’s fear that the
family of Tusi would retaliate for being a brother of accused-appellant Loloy to avenge Tusi’s death,
even though he had nothing to do with it, is true, he should have reported the matter to the police
authorities rather than hide at his sister’s house in Moonwalk until his apprehension on July 28,
1999.
Accused-appellant Gorio’s alleged act of fleeing for safety from Las Piñas City to Antipolo City in
order to allegedly avoid involvement in a neighborhood fight involving his son accused-appellant
Loloy, entrusting his two (2)-month old grandchild to the care of a neighbor who was not that familiar
to him, leaving his wife and daughter behind in Las Piñas City exposed to the purported wrath of the
family of Tusi, and leaving his son, accused-appellant Loloy, to fight his alleged aggressors without
doing anything to protect his son, are incredible, and contrary to human nature and experience. His
conduct could no less than be construed as an implied admission of guilt.

For alibi to prosper, it is not enough for accused-appellants Loloy and Gorio to prove that they were
somewhere else when the crime was committed. They must likewise prove that they could not have
been physically present at the scene of the crime or its immediate vicinity at the time of its
commission. Positive identification where categorical and consistent and not attended by any
showing of ill motive on the part of eyewitnesses on the matter prevails over alibi and denial.

On the other hand, Tano’s testimony was incongruent with the testimonies of the other defense
witnesses as regards the actual date of the occurrence of the offense, and the identity of Tusi. Said
testimony cast doubt on his credibility as an eyewitness and it fails to overcome the evidence for the
prosecution clearly and convincingly.

The testimony of Dr. Salen as regards the Anatomical Sketch, and Medico Legal Report, among
other things, prepared by Dr. Aranas falls under the exception to the hearsay rule because the said
sketch and report are entries in official records made by Dr. Aranas in the performance of his duty as
a Medico Legal Officer of the WPD Crime Laboratory. Dr. Aranas had personal knowledge of the
facts stated by him the said sketch and report relative to the nature and number of wounds sustained
by Tusi because he was the one who performed the autopsy on the cadaver of Tusi. Dr. Salen
acquired such facts from the sketch and report made by his predecessor, Dr. Aranas, who had a
legal duty to turn over the same to him as his successor. Such entries were duly entered in a regular
manner in the official records, hence, the entries in said sketch and report are prima facie evidence
of the facts therein stated and are admissible under Section 44, Rule 130 of the Rules of Court.

As an officer having legal custody of the said sketch and report, Dr. Salen attested that the copies
presented in the lower court were the original ones prepared by Dr. Aranas.

The findings on the wounds sustained by Tusi as found on the medico legal report was written in a
technical language which is not well understood by the lower court, and said matter required the
special knowledge, skill, experience or training possessed by Dr. Salen as a Medico Legal Officer of
the WPD Crime Laboratory to give to the lower court the meaning of the technical language used,
particularly, whether or not the wounds described therein were fatal. Hence, the lower court could
receive in evidence Dr. Salen’s interpretation of Dr. Aranas’ findings.

The testimony of an expert witness is not indispensable to a successful prosecution for murder.
While the autopsy report of a medico legal expert in cases of murder, or homicide, is preferably
accepted to show the extent of the injuries suffered by the victim, it is not the only competent
evidence to prove the injuries and the fact of death. The testimonies of credible witnesses are
equally admissible regarding such injuries and the surrounding circumstances thereof.

On the non-offer of evidence, notwithstanding the fact that the medical legal report and the
anatomical sketch were not formally offered, they are nonetheless, admissible because –

x x x Evidence not formally offered can be considered by the court as long as they have been
properly identified by testimony duly recorded and they have themselves been incorporated in the
records of the case. All the documentary and object evidence in this case were properly identified,
presented and marked as exhibits in court x x x. Even without their formal offer, therefore, the
prosecution can still establish the case because witnesses properly identified those exhibits, and
their testimonies are record. Furthermore, appellant’s counsel had cross-examined the prosecution
witnesses who testified on the exhibits.

In this case, the counsel of accused-appellants Loloy, Gorio, and Boy Roti had the opportunity to
cross-examine Dr. Salen, but did not do so, insisting that the latter is not qualified as a medico legal
expert, and that his testimony is hearsay.

Records show that Edgardo Tusi was not in a position to put up any kind of defense considering the
fact that he was seated and resting underneath a tree infront of his house immediately before
accused-appellant Loloy suddenly appeared and stabbed him twice with a kitchen knife.

There is treachery when the offender commits any of the crimes against persons, employing means
and method or forms in the execution thereof which tend directly and especially to ensure its
execution, without risk to the offender, arising from the defense which the offended party might
make. The essence of treachery is the sudden and unexpected attack without the slightest
provocation on the part of the person attacked.

The participation of accused-appellants Gorio and Boy Roti in killing Tusi was shown when accused-
appellant Gorio subsequently hacked Tusi on the head with a bolo, while accused-appellant Boy Roti
assisted by holding Tusi right after the stabbing by accused-appellant Loloy to especially ensure the
stabbing and hacking without risk to themselves.

Conspiracy exists when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it. In the absence of direct proof of conspiracy, it may be deduced from
the mode, method and manner by which the offense was perpetrated, or inferred from the acts of the
accused themselves when such point to a joint purpose and design, concerted action and
community of interest.

Hence, the lower court correctly held that treachery and conspiracy attended the killing of Tusi.

Even if the voluntary surrender of accused-appellant Loloy to the Antipolo City Police would be
appreciated, he would still be punished by reclusion perpetua, which is an indivisible penalty with a
fixed duration, under Article 248 of the Revised Penal Code because the pertinent portion of Article
63 of the said Code provides that:

In all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts
regardless of any mitigating or aggravating circumstances that may have attended the commission
of the deed.

Hence, the lower court correctly sentenced accused-appellants Loloy, Gorio, and Boy Roti to suffer
the penalty of reclusion perpetua.20

Hence, this appeal, in which the appellants urge that the CA committed the following errors, namely:

THE COURT A QUO GRAVELY ERRED IN NOT GIVING CREDENCE TO ACCUSED-APPELLANT

TORIBIO MAYINGQUE’S THEORY OF SELF-DEFENSE.
 II

THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE ACCUSED-APPELLANTS

CONSPIRED TO COMMIT THE CRIME OF MURDER

III

THE COURT A QUO GRAVELY ERRED IN GIVING CREDENCE TO HEARSAY EVIDENCE

WHICH BECAME THE BASIS FOR THE CONVICTION OF THE ACCUSED-APPELLANTS.

IV

ON THE ASSUMPTION THAT THE ACCUSED-APPELLANTS ARE GUILTY, THE COURT A QUO,
GRAVELY ERRED IN FAILING TO APPRECIATE THE CIRCUMSTANCE OF VOLUNTARY
SURRENDER, INCOMPLETE SELF-DEFENSE AND IN FINDING THAT THE CRIME WAS
ATTENDED BY TREACHERY.

On June 25, 2008, Gregorio manifested in writing that he was withdrawing his appeal upon the
advice and assistance of his counsel, because he intended to apply for executive clemency by
reason of his advanced age of 78 years.21

On July 16, 2008, the Court allowed Gregorio’s withdrawal of appeal, and considered the judgment
final and executory as to him.22

Ruling

The appeal has no merit.

The appellants would have the Court review the CA’s affirmance of their conviction by attacking the
appellate court’s supposed failure to accord credence to Toribio’s plea of self-defense, and by
assailing the appellate court’s appreciation of the evidence.

The Court cannot accept the appellants’ urging.

To begin with, it is fundamental that the determination by the trial court of the credibility of witnesses,
when affirmed by the appellate court, is accorded full weight and credit as well as great respect, if
not conclusive effect.23 Such determination made by the trial court proceeds from its first-hand
opportunity to observe the demeanor of the witnesses, their conduct and attitude under grilling
examination,24 thereby placing the trial court in the unique position to assess the witnesses’
credibility and to appreciate their truthfulness, honesty and candor.25

In view of the foregoing, we sustain the CA’s affirmance of the conviction. We have not been shown
any fact or circumstance of weight and influence that the CA and the RTC overlooked that, if
considered, should affect the outcome of the case.

Secondly, the essential elements of self-defense are: (a) unlawful aggression; (b) reasonable
necessity of the means employed to prevent or repel it; and (c) lack of sufficient provocation on the
part of the person defending himself.26 By invoking self-defense, the accused must prove by clear
and convincing evidence the elements of self-defense.27 The rule consistently adhered to in this
jurisdiction is that when the accused admitted that he was the author of the death of the victim and
his defense was anchored on self-defense, it becomes incumbent upon him to prove the

justifying circumstance to the satisfaction of the court.28 The rationale for this requirement is that the
accused, having admitted the felonious wounding or killing of his adversary, is to be held criminally
liable for the crime unless he establishes to the satisfaction of the court the fact of self-defense.
Thereby, however, the burden to prove guilt beyond reasonable doubt is not lifted from the shoulders
of the State, which carries it until the end of the proceedings. In other words, only the onus probandi
has shifted to him, because self-defense is an affirmative allegation that must be established with
certainty by sufficient and satisfactory proof.29 He must now discharge the burden by relying on the
strength of his own evidence, not on the weakness of that of the Prosecution, for, even if the
Prosecution’s evidence is weak, it cannot be disbelieved in view of the accused’s admission of the
killing.30

Both the trial court and the CA rejected Teofilo’s plea of self-defense. We hold that they did so
correctly. Teofilos’s evidence on self-defense was not persuasive enough, and lacked credibility.
Simply stated, such evidence did not prevail over the clear showing by Salvacion and the Bernals
that Teofilo and his co-conspirators had ganged up on Edgardo with a knife (Teofilo) and bolo
(Gregorio) while the other two had held Edgardo to render him defenseless. Indeed, we agree with
the conclusion of both lower courts that the plea of self-defense was belied by the number (12) and
the different sizes of the wounds inflicted on Edgardo. The presence of a large number of wounds on
the victim’s body negated self-defense, and indicated, instead, a determined effort to kill the victim.31

Toribio did not convincingly establish, first of all, that there was unlawful aggression against him. His
claim that Edgardo and the Bernals had attacked him with a lead pipe and wooden club, which
impelled him to stab Edgardo, became implausible to the lower courts, and to us, too, because
Toribio did not even submit himself to any medical attention. He should have done so, if, truly, he
had sustained injuries at the hands of the victim and his group. At any rate, the question as to who
between the accused and the victim was the unlawful aggressor was a question of fact best
addressed to and left with the trial court for determination based on the evidence on record.32

Thirdly, the CA did not err in affirming the conviction of Filomeno, whose main plea consisted of alibi.
Filomeno’s alibi would place him in Golden Gate, Moonwalk, Las Piñas City, at the time of the
commission of the crime. The CA rejected such alibi by indicating that the distance between Golden
Gate, Moonwalk, Las Piñas City and Pedro Sabido Street, BF Resort Village, Las Piñas City where
the crime was committed could be negotiated through a 30-minute tricycle ride, which did not render
impossible for Filomeno to be in the place of the crime when it was committed. The CA also cited the
abject failure of Filomeno, or other witnesses to credibly establish his being in Golden Gate,
Moonwalk, Las Piñas City in the entire time from the morning of May 30, 1999 till after the
commission of the crime, as well as to disprove the State’s positive showing that he was present in
the place of the crime when it was committed.

Alibi is an inherently weak and unreliable defense, because it is easy to fabricate and difficult to
disprove.33 To establish alibi, the accused must prove: (a) that he was actually in another place at the
time of the perpetration of the crime; and (b) that it was physically impossible for him to be at the
scene of the crime when the crime was perpetrated.34 Physical impossibility refers to the distance
between the place where the accused was when the crime transpired and the place where the crime
was committed, as well as to the facility of access between the two places.35

II

Penalties and Damages

As the consequence of the foregoing conclusion, the appellants are found guilty of murder, and
accordingly punished with reclusion perpetua pursuant to Article 248 of the Revised Penal Code.36

There is a need to correct the award of damages.

The CA did not state whether the amount of ₱50,000.00 was for death indemnity or moral damages.
Nonetheless, the CA should have awarded both damages, considering that they were of different
kinds.37 For death indemnity, the amount of ₱50,000.00 is fixed pursuant to the current judicial policy
on the matter,38 without the need of any evidence or proof of

damages.39 Likewise, the mental anguish of the surviving family should be assuaged by the award of
appropriate and reasonable moral damages.40 Although the surviving family’s mental anguish is not
ever quantifiable with mathematical precision, the Court must nonetheless determine the amount to
which the heirs of the deceased are entitled. In this case, the Court holds that the amount of
₱50,000.00 is reasonable, which, pursuant to prevailing jurisprudence,41 is awarded even in the
absence of any allegation and proof of the heirs’ emotional suffering, simply because human nature
and experience have shown that:

xxx a violent death invariably and necessarily brings about emotional pain and anguish on the part of
the victim’s family. It is inherently human to suffer sorrow, torment, pain and anger when a loved one
becomes the victim of a violent or brutal killing. Such violent death or brutal killing not only steals
from the family of the deceased his precious life, deprives them forever of his love, affection and
support, but often leaves them with the gnawing feeling that an injustice has been done to them.42 1awph!1

The Civil Code provides that exemplary damages may be imposed in criminal cases as part of the
civil liability "when the crime was committed with one or more aggravating circumstances."43 The Civil
Code allows such damages to be awarded "by way of example or correction for the public good, in
addition to the moral, temperate, liquidated or compensatory damages."44 In this regard, the CA and
the RTC committed the plain error of failing to recognize the right of the heirs of the victim to
exemplary damages by virtue of the attendance of treachery. The plain error, even if not assigned in
this appeal, demands immediate rectification as a matter of law due to the killing being attended by
treachery.

That treachery, being an attendant circumstance, was inseparable from murder did not matter. As
well explained in People v. Catubig:45

The term "aggravating circumstances" used by the Civil Code, the law not having specified
otherwise, is to be understood in its broad or generic sense. The commission of an offense has a
two-pronged effect, one on the public as it breaches the social order and the other upon the private
victim as it causes personal sufferings, each of which is addressed by, respectively, the prescription
of heavier punishment for the accused and by an award of additional damages to the victim. The
increase of the penalty or a shift to a graver felony underscores the exacerbation of the offense by
the attendance of aggravating circumstances, whether ordinary or qualifying, in its commission.
Unlike the criminal liability which is basically a State concern, the award of damages, however, is
likewise, if not primarily, intended for the offended party who suffers thereby. It would make little
sense for an award of exemplary damages to be due the private offended party when the
aggravating circumstance is ordinary but to be withheld when it is qualifying. Withal, the ordinary or
qualifying nature of an aggravating circumstance is a distinction that should only be of consequence
to the criminal, rather than to the civil, liability of the offender. In fine, relative to the civil aspect of the
case, an aggravating circumstance, whether ordinary or qualifying, should entitle the offended party
to an award of exemplary damages within the unbridled meaning of Article 2230 of the Civil Code.
Accordingly, ₱30,000.00 is awarded as exemplary damages. We hold that true exemplarity will not
be served by a lesser amount.

Lastly, the Court retains the award of ₱20,000.00 for burial expenses, as the CA and RTC fixed,
considering that the appellants have not assailed such amount. There can be no question that burial
expenses were the reasonable consequence of the criminal act of the accused.

WHEREFORE, appellants TORIBIO MAYINGQUE and FILOMENO MAYINGQUE are

found GUILTY beyond reasonable doubt of the crime of MURDER, and each is sentenced to suffer
reclusion perpetua.

The appellants are ordered to pay to the heirs of Edgardo Tusi ₱50,000.00 as civil indemnity,
₱50,000.00 as moral damages, ₱30,000.00 as actual damages, and ₱20,000.00 as burial expenses.

Costs of suit to be paid by the appellants.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

A.C. No. 7860             January 15, 2009

AVELINO O. ANGELES, LAURO O. ANGELES, MARIA O. ANGELES, ROSALINA O. ANGELES,

CONNIE M. ANGELES, Complainants,
vs.
ATTY. AMADO O. IBAÑEZ, Respondent.

DECISION

CARPIO, J.:

The Case

This is a complaint filed by Avelino O. Angeles, Maria O. Angeles, Lauro O. Angeles, Rosalina O.
Angeles, and Connie M. Angeles in representation of the deceased Loreto Angeles (collectively,
complainants) against Atty. Amado O. Ibañez (respondent) for disbarment for notarizing the
"Extrajudicial Partition with Absolute Sale" without a notarial commission and in the absence of the
affiants.

The Facts
The facts of CBD Case No. 06-1830, as stated in the Report and Recommendation of the
Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP), read as follows:

II. Statement of the Complaint

Complainants ... are residents of Highway, Sapang I, Ternate, Cavite.

Respondent Atty. Amado Ibañez is a practicing lawyer who holds office at 2101 Carolina (now
Madre Ignacia) St., Malate, Manila.

The lengthy and confusing narrative of what appears to be a bitter land dispute notwithstanding, it
can be gleaned from the Complaint and Position Paper, and the personal clarification by the
complainants themselves after questioning by the undersigned during the Mandatory Conference,
that the present administrative case is limited to an "Extrajudicial Partition with Absolute Sale" which
respondent Atty. Amado Ibañez allegedly notarized in the City of Manila on 18 February 1979, and
entered in his Notarial Book as Doc. No. 735, p. 157 and Book No. II, Series of 1979.

The complainants denied that they executed the said document or that they ever appeared before
respondent Atty. Ibañez for this purpose. They alleged that respondent Atty. Ibañez did not even
have the authority to notarize the "Extrajudicial Partition with Absolute Sale" as he did not have a
commission as a notary public at that time.

The complainants alleged that the respondent and his relatives are presently using the said
document in judicial proceedings pending before the Regional Trial Court of Naic, Cavite to their
damage and prejudice.

The complainants contend that respondent Atty. Ibañez’s act of notarizing the "Extrajudicial Partition
with Absolute Sale" without requiring the presence of the parties thereto, and despite his alleged lack
of a notarial commission, constitutes professional misconduct for which reason he should be
disbarred.

In support of their allegations, the complainants attached to their Complaint and Position Paper the
following documents:

1. Tax Declaration Nos. 20-004-00052, 1356, 1809 in the name of Barselisa Angeles, and
Tax Declarations 198, 283, 403 and 1544, in the name of Juan Angeles.

2. Certification dated 24 March 2006 issued by the Office of the Clerk of Court of the
Regional Trial Court of Manila stating that the Master List of Notaries Public shows that Atty.
Amado O. Ibañez was not appointed as such for and in the City of Manila for the year 1976-
1977.

3. Certification dated 28 April 2006 issued by the National Archives stating that there is no
notarial record on file with the said office of Amado Ibañez, a notary public for and within the
City of Manila, and it has no copy on file of an affidavit allegedly executed by Gabriel,
Estebana, Eutiquio, Gloria, Leocadio, Jovita, Samonte, and Renato, all surnamed Angeles,
ratified sometime in 1977 by the said notary public and acknowledged as Doc. No. 202,
Page No. 42, Book No. 1, Series of 1977.

4. Certification dated 11 April 2006 issued by the National Archives stating that there is no
notarial record on file with the said office of Amado Ibañez, a notary public for and within the
 City of Manila, and it has no copy on file of a partition w/renunciation [sic] and affidavit
allegedly executed by and among Gabriela, Estebana, Eutiquio, Gloria, Leocadio, Jovita,
Samonte and Renato, all surnamed Angeles, ratified sometime in 1977 by the said notary
public and acknowledged as Doc. No. 201, Page No. 41, Series of 1977.

5. Two (2) versions of a "Partihang Labas sa Hukuman at Ganap na Bilihan" dated 28 March
1978, executed by and between Gloria Angeles, Leocadio Angeles and Gabriela, Estebana,
Eutiquio, Jovita, Samonte and Renato, all surnamed Torres.

6. Flow chart showing the history of Tax Declaration No. 403, from 1948 to 1974.

7. Application for Free Patent over Cadastral Lot No. 460-C of the Ternate Cadastral
Sketching (CADS-617-D), SWO-04-000598 and Cadastral Lot No. 460-B, executed by Atty.
Amado O. Ibañez.

8. Certification dated 24 March 2006 issued by the Office of the Clerk of Court of the
Regional Trial Court of Manila stating that the Master List of Notaries Public shows that Atty.
Amado O. Ibañez was not appointed as such for and in the year 1978-1979.

9. "Extrajudicial Partition with Absolute Sale" (with various marginal notes made by the
complainants) notarized by Atty. Amado Ibañez in the City of Manila on 18 February 1979,
and entered in his Notarial Book as Doc. No. 735, p. 147 and Book No. II, Series of 1979.

10. Real Estate Mortgage executed by Flora Olano in favor of the Rural Bank of Naic, Inc., in
the amount of Php350.00, covering property located in Zapang, Ternate, Cavite and
described in Tax Declaration No. 1657-1658.

11. Certification dated 12 January 2007 issued by the Office of the Clerk of Court of the
Regional Trial Court of Trece Martires City stating that Atty. Amado O. Ibañez was not duly
commissioned as a notaryt [sic] public for and within the Province of Cavite in the year 1979,
and that it has no copy in its records of an "Extrajudicial Partition with Absolute Sale"
allegedly notarized by Atty. Amado Ibañez on 18 February 1979 and entered in his Notarial
Book as Doc. No. 735, p. 147 and Book No. II. Series of 1979.

III. Respondents’ Position/Defense

In his Motion to Dismiss and Position Paper, respondent Atty. Ibañez contended that the
complainants are guilty of forum-shopping inasmuch as they had previously filed the same
complaint, docketed as Administrative Case No. 3581, which was eventually dismissed by then IBP
CBD Comm. Victor Fernandez.

The respondent admitted that he notarized the "Extrajudicial Partition with Absolute Sale" but
clarified that he did so as Notary Public of the Province of Cavite, with a notarial commission issued
by the Regional Trial Court of Cavite, Branch 1, Trece Martires City. He explained that the
designation of "Manila" as the place of execution of the said document was a mistake of his former
legal secretary, who failed to correct the same through oversight.

Respondent Atty. Ibañez alleged that he notarized the "Extrajudicial Partition with Absolute Sale" in
his capacity as the official Notary Public of Puerto Azul, and the same was actually prepared and
typewritten by complainant Rosalina Angeles for a consideration of Php20,000.00 as evidenced by a
photocopy of Commercial Bank & Trust Co. Cashier’s Check dated 31 January 1979 on file with the
Puerto Azul office, as well as an "Exclusive Authority" attached to the said document. The
respondent also alleged that complainant Rosalina Angeles was at that time employed as a typist at
Puerto Azul and that she enjoyed the trust and confidence of the Puerto Azul management.

The respondent stated that the land subject of the sale was surveyed for Mrs. Trinidad Diaz-
Enriquez by the late Angel Salvacion, the official surveyor of Puerto Azul, and was submitted to the
Bureau of Lands for verification and approval and was approved on 14 February 1985 as CCN No.
04-000038-D. Respondent Atty. Ibañez alleged that the property is presently in the actual
possession of Puerto Azul, with former Sapang I Bgy. Captain Johnny Andra as tenant.

The respondent alleged that Puerto Azul’s ownership of the property is anchored on the
"Extrajudicial Partition with Absolute Sale," which is in turn the subject of a case, CA GR SP No.
2006-1668, which is presently pending in the Court of Appeals.

Respondent Atty. Ibañez alleged that a defect in the notarization of a document of sale does not
invalidate the transaction, and he stated that his failure to require the presence of the parties to the
"Extrajudicial Partition with Absolute Sale" is wholly justified because of the assurance of
complainant Rosalina Angeles that the signatures appearing in the said document were indeed
those of her co-heirs. The respondent also alleged that almost all the complainants submitted their
residence certificates, the numbers of which were recorded in the acknowledgement portion of the
document.

The respondent denied that he had committed any crime when he notarized the "Extrajudicial
Partition with Absolute Sale" because the offenses in the Revised Penal Code are "mala in se"
where the intention to commit the crime is required, which is lacking in his case. The respondent
added that there is regularity in the performance of his duty as the official notary public of Puerto
Azul.

The respondent pointed out that nearly twenty eight (28) years have lapsed without anyone
questioning not only the sale of the said property, but Puerto Azul’s long possession of the same as
well. He alleged that the complainants are now denying the sale because they want to make it
appear that they have land within or adjoining a quarry site which they have invaded and taken over.
He reiterated that the defect in his notarization of the sale document notwithstanding, the sale
remains valid.

By way of his defense, respondent Atty. Ibañez submitted the following documents:

1. Photocopy of a Supreme Court Resolution dated 31 July 2000 denying the complainants’
motion for reconsideration in Administrative Case No. 3581, entitled "Rosalina Angeles, et
al. vs. Atty. Amado Ibañez"

2. Photocopy of IBP Board of Governors Resolution dated 27 June 1999, adopting and
approving the Report and Recommendation of Comm. Victor Fernandez dismissing
Administrative Case No. 3581, entitled "Rosalina Angeles, et al. vs. Atty. Amado Ibañez"

3. Photocopy of a Counter-Affidavit filed by Atty. Amado Ibañez in OMB-1-C 06-0368-

C/OMB-L C 06-0272-C, entitled "Mario O. Angeles vs. Sony Peji, et al.,"

4. "Extrajudicial Partition with Absolute Sale" notarized by Atty. Amado Ibañez in the City of
Manila on 18 February 1979, and entered in his Notarial Book as Doc. No. 735, p. 147 and
 Book No. II, Series of 1979, with attached "Exclusive Authority" executed by Maria Angeles,
Flora Angeles, Lauro Angeles and Avelino Angeles in favor of Rosalina Angeles.1

The IBP’s Report and Recommendation

In a Report2 dated 21 January 2008, IBP Commissioner for Bar Discipline Rico A. Limpingco
(Commissioner Limpingco) found that respondent notarized the "Extrajudicial Partition with Absolute
Sale" in the absence of affiants and without a notarial commission. Thus:

As stated earlier, the present administrative complaint may seem at first to be one for falsification,
land grabbing, etc., but a closer examination of the complainants’ allegations coupled with their own
verbal confirmation during the Mandatory Conference, shows that the complainants are actually
accusing respondent Atty. Amado Ibañez of notarizing an "Extrajudicial Partition with Absolute Sale"
in the City of Manila on 18 February 1979 (entered in his Notarial Book as Doc. No. 735, p. 147 and
Book No. II, Series of 1979) without requiring the presence of the parties thereto, and further, for
notarizing the said document even if he did not have a notarial commission at that time.

The respondent contends that the complainants have previously filed the same administrative
complaint against him, docketed as Administrative Case No. 3581, and that the same was eventually
dismissed by the Supreme Court. He alleged that as in this prior complaint, the present case must
likewise be dismissed for forum shopping.

It appears, however, that Administrative Case No. 3581 is entirely different and distinct from the
present complaint. A reading of the photocopy of IBP Board of Governors Resolution dated 27 June
1999, adopting and approving the attached Report and Recommendation of Comm. Victor
Fernandez dismissing Administrative Case No. 3581, entitled "Rosalina Angeles, et al. vs. Atty.
Amado Ibañez" (as attached by the respondent himself in his Motion to Dismiss) shows that this
earlier complaint pertains to herein respondent’s alleged "land-grabbing" of two (2) parcels of land in
Bgy. Zapang, Ternate, Cavite. As stated in the report authored by then Commissioner Victor
Fernandez, the earlier administrative case relates to the sale of the said property to the Sps. Danilo
Andra and Angela Olano, and its subsequent sale to the respondent, Atty. Amado Ibañez, who for
his part later applied for, and was granted, free patent titles over the same. Branding the transaction
as land-grabbing, the complainants filed an action in court to recover possession and annul the titles
but the case was eventually dismissed by the Supreme Court for lack of merit. The complainants
then filed the same complaint with the Office of the Ombudsman, the Dept. of Justice, the Bureau of
Internal Revenue and the Supreme Court, which eventually referred the matter to the IBP. In his
report, then-Commissioner Victor Fernandez declared that the complainants were engaged in forum-
shopping, reasoning that unsuccessful in their effort to obtain the result they desire from the courts,
they would attempt to refile their dismissed action under the guise of an administrative case.

The present administrative complaint may be in one way or another related to the alleged land-
grabbing which was the subject of Administrative Case No. 3581, but it pertains to an altogether
different matter. In the present complaint, respondent Atty. Ibañez is not being accused of land-
grabbing or falsification, but rather, for misconduct in notarizing a document.

We would point out that respondent Atty. Amado Ibañez admitted that he did not require the
presence of the parties to the document because he was assured as to the authenticity of their
signatures. We would also stress that the respondent never denied that he notarized the
"Extrajudicial Partition with Absolute Sale," but claimed that he did so not in Manila as stated in
document, but in Cavite where he claimed to be a commissioned notary public; he attributed the
mistake to his legal secretary, and he insisted that the sale remained valid despite the defects in
notarization.
That is not the point, however. The validity of the transaction covered by the "Extrajudicial Partition
with Absolute Sale" is not at issue in this administrative case for that is a matter for the courts to
adjudicate, if they have not already done so.

As it is, no less than the respondent himself categorically admitted that he notarized the
"Extrajudicial Partition with Absolute Sale" in the absence of the parties thereto. To make
matters worse, the certifications submitted by the complainants clearly indicate that
respondent Atty. Amado Ibañez did not have any notarial commission whether for Manila or
Cavite, in 18 February 1979 when he notarized the subject document. The respondent, for his
part, has been completely unable to proffer any kind of proof of his claim that he had a
commission as a notary public for and in the Province of Cavite in 1979, or of his submission
of notarial reports and notarial register during the said period.

xxx

While the case of respondent Atty. Amado Ibañez is not perfectly identical to the facts and
circumstances obtaining in these cases, his act of notarizing a document without the necessary
commission is nonetheless clear and undeniable. Guided by the foregoing rulings of the Supreme
Court vis-a-vis the facts in the present complaint, it is therefore respectfully recommended that
respondent Atty. Amado Ibañez:

1. Be barred from being commissioned as a notary public for a period of two (2) years, and in
the event that he is presently commissioned as a notary public, that his commission be
immediately revoked and suspended for such period; and

2. Be suspended from the practice of law for a period of one (1) year.

Respectfully submitted.3 (Emphasis added)

In a Resolution4 dated 6 February 2008, the IBP Board of Governors adopted and approved the
Report and Recommendation of Commissioner Limpingco. The Office of the Bar Confidant received
the notice of the Resolution and the records of the case on 10 April 2008.

Respondent filed a supplemental position paper on 28 May 2008 before the IBP Board of Governors.
In a Resolution dated 29 May 2008, the IBP Board of Governors referred respondent’s submission to
the Office of the Bar Confidant. Respondent attached photocopies of the following: respondent’s
Petition for Commission as Notary Public for and within the Province of Cavite filed before the said
Court on 16 February 1978; respondent’s commission as Notary Public for the province of Cavite for
the term 1978 until 1979 issued by Executive Judge Pablo D. Suarez on 21 February 1978; and
respondent’s oath of office as notary public dated 21 February 1978.

The Ruling of the Court

We sustain the findings of the IBP and adopt its recommendations with modification. Respondent
violated his oath as a lawyer and the Code of Professional Responsibility when he notarized the
"Extrajudicial Partition with Absolute Sale" in the absence of the affiants.

Respondent Notarized the "Extrajudicial Partition with Absolute Sale" in the Absence of the Affiants

Respondent himself admits that he merely relied on the representation of Rosalina Angeles that the
signatures appearing on the "Extrajudicial Partition with Absolute Sale" subject of the present
complaint are those of her co-heirs.5 Respondent claims that he reposed confidence upon Rosalina
Angeles because she is his confidential secretary. Unfortunately for respondent, he cannot
exculpate himself from the consequences of his recklessness and his failure to comply with the
requirements of the law by relying on his confidential secretary.

Time and again, we have reminded lawyers commissioned as notaries public that the affiants must
personally appear before them. Section 1 of Public Act No. 2103, or the Notarial Law, provides:

Sec. 1. (a) The acknowledgement shall be before a notary public or an officer duly authorized by law
of the country to take acknowledgements of instruments or documents in the place where the act is
done. The notary public or the officer taking the acknowledgement shall certify that the person
acknowledging the instrument or document is known to him and that he is the same person who
executed it, acknowledged that the same is his free act and deed. The certificate shall be made
under the official seal, if he is required by law to keep a seal, and if not, his certificate shall so state.

Section 2(b) of Rule IV of the Rules on Notarial Practice of 2004 reads:

A person shall not perform a notarial act if the person involved as signatory to the instrument or
document -

(1) is not in the notary’s presence personally at the time of the notarization; and

(2) is not personally known to the notary public or otherwise identified by the notary public
through competent evidence of identity as defined by these Rules.

The physical presence of the affiants enables the notary public to verify the genuineness of the
signatures of the acknowledging parties and to ascertain that the document is the parties’ free act
and deed.6

Notarization of a private document converts such document into a public one, and renders it
admissible in court without further proof of its authenticity. Courts, administrative agencies and the
public at large must be able to rely upon the acknowledgment executed by a notary public and
appended to a private instrument. Notarization is not an empty routine; to the contrary, it engages
public interest in a substantial degree and the protection of that interest requires preventing those
who are not qualified or authorized to act as notaries public from imposing upon the public and the
courts and administrative offices generally.7

Under the facts and circumstances of the case, respondent’s notarial commission should not only be
suspended but respondent must also be suspended from the practice of law.

WHEREFORE, the Court finds respondent Atty. Amado O. Ibañez GUILTY of notarizing the
"Extrajudicial Partition with Absolute Sale" in the absence of the affiants. Accordingly, the
Court SUSPENDS him from the practice of law for one year, REVOKES his incumbent notarial
commission, if any, and PROHIBITS him from being commissioned as a notary public for one year,
effective immediately, with a stern warning that a repetition of the same or similar offense shall be
dealt with more severely.

Let copies of this Decision be furnished to the Office of the Bar Confidant, to be appended to
respondent’s personal record as attorney. Likewise, copies shall be furnished to the Integrated Bar
of the Philippines and all courts in the country for their information and guidance.
SO ORDERED.

THIRD DIVISION

G.R. No. 137944             April 6, 2000

FERNANDA MENDOZA CEQUEÑA and RUPERTA MENDOZA LIRIO, petitioners,

vs.
HONORATA MENDOZA BOLANTE, respondent.

PANGANIBAN, J.:

Tax receipts and declarations are prima facie proofs of ownership or possession of the property for
which such taxes have been paid. Coupled with proof of actual possession of the property, they may
become the basis of a claim for ownership. By acquisitive prescription, possession in the concept of
owner — public, adverse, peaceful and uninterrupted — may be converted to ownership. On the
other hand, mere possession and occupation of land cannot ripen into ownership.

The Case

Before us is a Petition for Review on Certiorari of the March 19, 1999 Decision  of the Court of
1 

Appeals  (CA) in CA-GR CV No. 43423. The assailed Decision disposed as follows: 
2  3

WHEREFORE, for all the foregoing, the decision of the trial court appealed from is REVERSED and
SET ASIDE. In lieu thereof, judgment is hereby rendered declaring . . . Honorata Mendoza Bolante
the rightful owner and possessor of the parcel of land which is the subject of this appeal.

The Facts

The Petition herein refers to a parcel of land situated in Barangay Bangad, Binangonan, Province of
Rizal, having an area of 1,728 square meters and covered by Tax Declaration No. 26-0027. The
undisputed antecedents of this case are narrated by the Court of Appeals as follows:  4
The facts not disputed revealed that prior to 1954, the land was originally declared for taxation
purposes in the name of Sinforoso Mendoza, father of [respondent] and married to Eduarda Apiado.
Sinforoso died in 1930. [Petitioners] were the daughters of Margarito Mendoza. On the basis of an
affidavit, the tax declaration in the name of Sinforoso Mendoza of the contested lot was cancelled
and subsequently declared in the name of Margarito Mendoza. Margarito and Sinforoso are
brothers. [Respondent] is the present occupant of the land. Earlier, on October 15, 1975,
[respondent] and Miguel Mendoza, another brother of [petitioners], during the cadastral survey had a
dispute on [the] ownership of the land. 1âwphi1.nêt

During the pre-trial conference, parties stipulated the following facts:

1) The land subject of the case was formerly declared for taxation purposes in the name of
Sinforoso Mendoza prior to 1954 but is now declared in the name of Margarito Mendoza.

2) The parties agree[d] as to the identity of the land subject of instant case.

3) [Petitioners] are the daughters of Margarito Mendoza while the [respondent] is the only
daughter of Sinforoso Mendoza.

4) Margarito Mendoza and Sinforoso Mendoza [were] brothers, now deceased.

5) During the cadastral survey of the property on October 15, 1979 there was already a
dispute between Honorata M. Bolante and Miguel Mendoza, brother of [petitioners].

6) [Respondent was] occupying the property in question.

The only issue involved [was] who [was] the lawful owner and possessor of the land subject of the
case.

After trial, the court a quo rendered its judgment in favor of [petitioners], the dispositive portion of
which reads as follows:

Wherefore, in view of the foregoing considerations, judgment is hereby rendered for the [petitioners]
and against the [respondent]:

1. Declaring that the parcel of land situated in Bangad, Binangonan, Rizal covered by tax
declaration no. 26-0027 in the name of Margarito Mendoza belong to his heirs, the
[petitioners] herein;

2. Ordering [respondent] to vacate the property subject of the case and deliver possession
thereof to the heirs of Margarito Mendoza.

3. Ordering the [respondent] to indemnify the [petitioners] in the sum of P10,000.00, as

actual damages.

4. Ordering the [respondent] to pay the costs.

Ruling of the Court of Appeals

The Court of Appeals reversed the trial court because the genuineness and the due execution of the
affidavit allegedly signed by the respondent and her mother had not been sufficiently established.
The notary public or anyone else who had witnessed the execution of the affidavit was not
presented. No expert testimony or competent witness ever attested to the genuineness of the
questioned signatures.

The CA further ruled that the affidavit was insufficient to overcome the denial of respondent and her
mother. The former testified that the latter, never having attended school, could neither read nor
write. Respondent also said that she had never been called "Leonor," which was how she was
referred to in the affidavit.

Moreover, the appellate court held that the probative value of petitioners' tax receipts and
declarations paled in comparison with respondent's proof of ownership of the disputed parcel.
Actual, physical, exclusive and continuous possession by respondent since 1985 indeed gave her a
better title under Article 538 of the Civil Code.

Hence, this Petition. 5

Issues

Insisting that they are the rightful owners of the disputed land, the petitioners allege that the CA
committed these reversible errors:  6

1. . . . [I]n not considering the affidavit as an exception to the general rule that an affidavit is
classified as hearsay evidence, unless the affiant is placed on the witness stand;

2. . . . [I]n holding that respondent has been in actual and physical possession, coupled with .
. . exclusive and continuous possession of the land since 1985, which are evidence of the
best kind of circumstance proving the claim of the title of ownership and enjoys the
presumption of preferred possessor.

The Court's Ruling

The Petition has no merit.

First Issue:

Admissibility of the Affidavit

Petitioners dispute the CA's ruling that the affidavit was not the best evidence of their father's
ownership of the disputed land, because the "affiant was not placed on the witness stand." They
contend that it was unnecessary to present a witness to establish the authenticity of the affidavit
because it was a declaration against respondent's interest and was an ancient document. As a
declaration against interest, it was an exception to the hearsay rule. As a necessary and trustworthy
document, it was admissible in evidence. And because it was executed on March 24, 1953, it was a
self-authenticating ancient document.

We quote below the pertinent portion of the appellate court's ruling:  7

While it is true that the affidavit was signed and subscribed before a notary public, the
general rule is that affidavits are classified as hearsay evidence, unless affiants are placed
on the witness stand (People's Bank and Trust Company vs. Leonidas, 207 SCRA 164).
Affidavits are not considered the best evidence, if affiants are available as witnesses
 (Vallarta vs. Court of Appeals, 163 SCRA 587). The due execution of the affidavit was not
sufficiently established. The notary public or others who saw that the document was signed
or at least [could] confirm its recitals [were] not presented. There was no expert testimony or
competent witness who attested to the genuineness of the questioned signatures. Worse,
[respondent] denied the genuineness of her signature and that of her mother . . .
[Respondent] testified that her mother was an illiterate and as far as she knew her mother
could not write because she had not attended school (p. 7, ibid). Her testimony was
corroborated by Ma. Sales Bolante Basa, who said the [respondent's] mother was illiterate.

The petitioners’ allegations are untenable. Before a private document offered as authentic can be
received in evidence, its due execution and authenticity must be proved first.  And before a
8 

document is admitted as an exception to the hearsay rule under the Dead Man's Statute, the offeror
must show (a) that the declarant is dead, insane or unable to testify; (b) that the declaration
concerns a fact cognizable by the declarant; (c) that at the time the declaration was made, he was
aware that the same was contrary to his interest; and (d) that circumstances render improbable the
existence of any motive to falsify. 
9

In this case, one of the affiants happens to be the respondent, who is still alive and who testified that
the signature in the affidavit was not hers. A declaration against interest is not admissible if the
declarant is available to testify as a witness.  Such declarant should be confronted with the
10 

statement against interest as a prior inconsistent statement.

The affidavit cannot be considered an ancient document either. An ancient document is one that is
(1) more than 30 years old, (2) found in the proper custody, and (3) unblemished by any alteration or
by any circumstance of suspicion.  It must on its face appear to be genuine. The petitioners herein
11 

failed, however, to explain how the purported signature of Eduarda Apiado could have been affixed
to the subject affidavit if, according to the witness, she was an illiterate woman who never had any
formal schooling. This circumstance casts suspicion on its authenticity.

Not all notarized documents are exempted from the rule on authentication. Thus, an affidavit does
not automatically become a public document just because it contains a notarial jurat. Furthermore,
the affidavit in question does not state how the ownership of the subject land was transferred from
Sinforoso Mendoza to Margarito Mendoza. By itself, an affidavit is not a mode of acquiring
ownership.

Second Issue:

Preference of Possession

The CA ruled that the respondent was the preferred possessor under Article 538 of the Civil Code
because she was in notorious, actual, exclusive and continuous possession of the land since 1985.
Petitioners dispute this ruling. They contend that she came into possession through force and
violence, contrary to Article 536 of the Civil Code.

We concede that despite their dispossession in 1985, the petitioners did not lose legal possession
because possession cannot be acquired through force or violence.  To all intents and purposes, a
12 

possessor, even if physically ousted, is still deemed the legal possessor. Indeed, anyone who can
13 

prove prior possession, regardless of its character, may recover such possession.  14

However, possession by the petitioners does not prevail over that of the respondent.  Possession by
1âwphi1

the former before 1985 was not exclusive, as the latter also acquired it before 1985. The records
show that the petitioners' father and brother, as well as the respondent and her mother were
simultaneously in adverse possession of the land.

Before 1985, the subject land was occupied and cultivated by the respondent's father (Sinforoso),
who was the brother of petitioners' father (Margarito), as evidenced by Tax Declaration No.
26425.  When Sinforoso died in 1930, Margarito took possession of the land and cultivated it with
15 

his son Miguel. At the same time, respondent and her mother continued residing on the lot.

When respondent came of age in 1948, she paid realty taxes for the years 1932-1948.  Margarito
16 

declared the lot for taxation in his name in 1953  and paid its realty taxes beginning 1952.  When he
17  18 

died, Miguel continued cultivating the land. As found by the CA, the respondent and her mother were
living on the land, which was being tilled by Miguel until 1985 when he was physically ousted by the
respondent.  19

Based on Article 538 of the Civil Code, the respondent is the preferred possessor because,
benefiting from her father's tax declaration of the subject lot since 1926, she has been in possession
thereof for a longer period. On the other hand, petitioners' father acquired joint possession only in
1952.

Third Issue:

Possession of Better Right

Finally, the petitioners challenge the CA ruling that "actual and physical coupled with the exclusive
and continuous possession [by respondent] of the land since 1985" proved her ownership of the
disputed land. The respondent argues that she was legally presumed to possess the subject land
with a just title since she possessed it in the concept of owner. Under Article 541 of the Code, she
could not be obliged to show or prove such title.

The respondent's contention is untenable. The presumption in Article 541 of the Civil Code is merely
disputable; it prevails until the contrary is proven.  That is, one who is disturbed in one's possession
20 

shall, under this provision, be restored thereto by the means established by law.  Article 538 settles
21 

only the question of possession, and possession is different from ownership. Ownership in this case
should be established in one of the ways provided by law.

To settle the issue of ownership, we need to determine who between the claimants has proven
acquisitive prescription.  22

Ownership of immovable property is acquired by ordinary prescription through possession for ten
years. Being the sole heir of her father, respondent showed through his tax receipt that she had
23 

been in possession of the land for more than ten years since 1932. When her father died in 1930,
she continued to reside there with her mother. When she got married, she and her husband
engaged in kaingin inside the disputed lot for their livelihood.  24

Respondent's possession was not disturbed until 1953 when the petitioners' father claimed the land.
But by then, her possession, which was in the concept of owner — public, peaceful, and
uninterrupted  — had already ripened into ownership. Furthermore she herself, after her father's
25 

demise, declared and paid realty taxes for the disputed land. Tax receipts and declarations of
ownership for taxation, when coupled with proof of actual possession of the property, can be the
basis of a claim for ownership through prescription.  26
In contrast, the petitioners, despite thirty-two years of farming the subject land, did not acquire
ownership. It is settled that ownership cannot be acquired by mere occupation.  Unless coupled with
27 

the element of hostility toward the true owner,  occupation and use, however long, will not confer
28 

title by prescription or adverse possession. Moreover, the petitioners cannot claim that their
possession was public, peaceful and uninterrupted. Although their father and brother arguably
acquired ownership through extraordinary prescription because of their adverse possession for
thirty-two years (1953-1985),  this supposed ownership cannot extend to the entire disputed lot, but
29 

must be limited to the portion that they actually farmed.

We cannot sustain the petitioners' contention that their ownership of the disputed land was
established before the trial court through the series of tax declarations and receipts issued in the
name of Margarito Mendoza. Such documents prove that the holder has a claim of title over the
property. Aside from manifesting a sincere desire to obtain title thereto, they announce the holder's
adverse claim against the state and other interested parties.  30

However, tax declarations and receipts are not conclusive evidence of ownership.  At most, they
31 

constitute mere prima facie proof of ownership or possession of the property for which taxes have
been paid.  In the absence of actual public and adverse possession, the declaration of the land for
32 

tax purposes does not prove ownership. In sum, the petitioners' claim of ownership of the whole
33 

parcel has no legal basis. 1âwphi1.nêt

WHEREFORE, the Petition is DENIED and the assailed Decision and Resolution AFFIRMED. Costs
against petitioners.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 103517 February 9, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EDGARDO YAP y BOCA and SIMPLICIO OSMEÑA y OCAYA,
accused-appellants.

The Solicitor General for plaintiff-appellee.

Macamay & Donato Law Office for accused-appellant.

REGALADO, J.:

Do not conform any longer to the pattern of this world, . . .

Romans 12:2

Accused-appellants Edgardo Yap and Simplicio Osmeña were charged with a violation of Section 4,
Article II of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as
amended, for having sold on October 1, 1989 in Ozamiz City six sticks of marijuana for a
consideration of ten pesos. 1

On May 21, 1990 appellants pleaded not guilty when arraigned with the assistance of counsel de
parte, and thereafter stood trial. On November 9, 1990, the court a quo rendered
judgment convicting both appellants of the crime charged, and sentenced them to serve the penalty
of reclusion perpetua, to pay a fine of P20,000.00, to suffer all accessory penalties of the law and to
pay the costs. The six marijuana cigarettes were forfeited in favor of the Government and appellant
Yap was credited, in the service of his sentence, with four-fifths of the period of his preventive
imprisonment. 2

On June 12, 1993, after the filing of appellant's brief, appellant Simplicio Osmeña died due to
gunshot and stab wounds,  hence his appeal was dismissed. The present proceeding is accordingly
3

with respect to appellant Edgardo Yap, although the participation of Osmeña may occasionally be
adverted to in this opinion.

From the evidence in this case. it appears that a report of rampant pushing of prohibited drugs by
notorious pushers "Edgar" and "Simpoy," later identified as appellants Edgardo Yap and Simplicio
Osmeña, respectively, was submitted by a civilian informer to the 10th Narcotics Regional Unit of the
Philippine Constabulary (PC) stationed in Cotta, Ozamiz City. 4

Acting on said report, a buy-bust team was organized by that unit, composed of S/Sgt. Reynaldo
Miguel, as team leader, Sgt. Bernardino Mugot, Sgt. Rolando Malagayo and CIC Emilio de Guzman,
as members, and with Percival Raterta, a PC Narcotics Command agent, as the poseur-buyer. 5

At around 10:30 o'clock in the morning of October 1, 1989, two buy-bust operations were scheduled
to be conducted simultaneously inside the public market of Ozamiz City. In the operations subject of
the case at bar, S/Sgt. Miguel gave Raterta a ten-peso bill with serial number JP 674717, marked by
the signature of Miguel just below the printed signature thereon of then President Corazon C.
Aquino, and which facts were duly entered in the log book of their office.6

When Raterta reached the public market,. the other members of the team had already strategically
deployed themselves in their designated positions. Upon seeing appellants Yap and Osmeña,
Raterta approached them and offered to buy marijuana, whereupon six sticks thereof were delivered
to him by Osmeña after he handed the marked ten-peso bill to Yap, who put the money in the right
pocket of his pants. Thereafter, Raterta went back to their headquarters and turned over the six
marijuana cigarettes to their team leader, S/Sgt. Miguel. 7

Immediately after the consummation of said sale of the six sticks of marijuana, Sgt. Mugot, who was
four to five meters away, saw the two appellants go inside the public market. He and his companions
surreptitiously followed both appellants. They did not immediately arrest the latter as they were still
waiting for the result of the other buy-bust operation conducted by another group in the same
vicinity, and knowledge of their presence might alarm other drug pushers who may be present
therein. When the other group informed Sgt. Mugot that their operation failed, he and his
companions forthwith arrested both appellants and brought them to their headquarters.
S/Sgt. Miguel then conducted a body search on appellants and retrieved the marked ten-peso bill
from the right pocket of Yap/s pants.  The six sticks of marijuana were brought by Sgt. Malagayo to
8

the forensic chemist of the National Bureau of Investigation at Region 10 for laboratory examination
and testing. These tests yielded positive results for marijuana. 9

Appellants denied any participation in the aforestated sale of prohibited drugs. Osmeña claimed that
in the morning of that day, he was in their house doing some household chores when Yap came and
asked him to accompany him to buy soap inside the public market. On their way, they met Frederick
Lapitan and his cousin, Paul Suizo. Lapitan, their common friend, invited them for a round of drinks
in the store of Charles Revil located inside the public market. At about 10:30 A.M., a group of rugged
looking men entered the store and picked up Yap and Osmeña. The latter resisted and asked for a
warrant of arrest, but a pistol was pointed at his head. The said group identified themselves as
members of the Regional Special Action Force and brought them to their headquarters. The
incidents narrated above were corroborated by Lapitan and Emerita Tiongson, a regular customer of
Osmeña's mother.  10

Appellants raised seven assignments of errors, which can actually be simplified and consolidated
into five propositions, and the same are hereunder discussed in light of the evidence on record.

1. Appellants claimed that the testimonies of the prosecution witnesses were never offered nor
admitted in evidence, nor were the specific purposes for which they were offered duly stated,
contrary to Sections 34 and 35, Rule 132 of the Rules of Court.

In actual practice, there is a difference between presentation or introduction of evidence and offer of
such evidence at the trial of a case. The presentation of evidence consists of putting in as evidence
the testimony of the witnesses or the documents relevant to the issue. An offer of evidence, on the
other hand, means the statement made by counsel as to what he expects to prove through the
witness. This is what trial lawyers understand by the "offer of evidence." Thus, "offer of evidence," as
used in Section 34 of Rule 132 must be understood to include the presentation or introduction of
evidence. What is essential in order that an offer of testimony may be valid, therefore, is that the
witness be called and asked appropriate questions.  11

All the prosecution witnesses were presented and examined before the court a quo, the questions
and answers being taken down in writing, and such testimonies were offered thereafter to the trial
court. Had appellants wanted the trial court to reject the evidence being introduced, they should
have raised an objection thereto. They cannot raise the question for the first time on appeal.   The
12

right to object is a privilege which the party may waive. It is not consistent with the ends of justice for
a party, knowing of a supposed secret defect, to proceed and take his chance for a favorable verdict,
with the power and intent to annul it as erroneous if it should be against him.  13

2. Appellants asserted that the team of Sgt. Mugot was not provided with a warrant of arrest when
appellants were apprehended. This specious argument is readily disposed of by Section 5(c) of Rule
113 which provides that a peace officer or a private person may effect an arrest without a warrant
when an offense has in fact just been committed, and he has personal knowledge of facts indicating
that the person to be arrested has committed it. Sgt. Mugot had personal knowledge of the
commission of the crime, having been present in the locus criminis and having actually witnessed
the unlawful transaction. The interval between the commission of the crime and the time of the
arrests was only four to five minutes.  14

A buy-bust operation is a form of entrapment employed by peace officers to apprehend a malefactor

in flagrante delicto, that is, to catch him red-handed while selling marijuana to a person acting as a
poseur-buyer.   Consequently, and contrary to the claim of the defense, appellants were positively
15
identified by the poseur-buyer, Raterta, and Sgt. Mugot, who were undeniably eyewitnesses to the
crime.

3. Appellants, as is to be expected, sought to assail the credibility of the prosecution witnesses.

Availing of the very same case cited by appellants, we reiterate the doctrine in People vs.
Baduya   that the findings of fact of the trial court on the matter of credibility of witnesses will not be
16

disturbed on appeal in the absence of any showing that the trial court overlooked, misunderstood or
misapplied some fact or circumstance of weight and substance that would have affected the result of
the case. The exceptions mentioned therein do not obtain and find no application in the case under
consideration.

4. The claim of the appellants that they were framed is absurd. The narcotics agents did not even
know them before the operation and certainly had no grudge against or entertained any animosity
towards them. It is difficult to conceive that said agents, for no reason at all, would pick out both
appellants from the group with which they were drinking and arrest them for a crime that could mean
imprisonment for life.

Aside from the presumption of regularity in the discharge of their functions,   there is no showing that
17

the agents were actuated by improper motives, hence their testimonies are entitled to full faith and
credit. The defense of frame-up must be proved by clear and convincing evidence. Like alibi, it is a
weak defense that is easy to concoct and difficult to prove.  18

5. Appellants invoke the discredited theory that it is unlikely for them to sell prohibited drugs to an
unknown person like Raterta and in a public place like the market. In a long line of cases,   the Court
19

has emphasized that drug pushers sell their prohibited wares to customers, be they strangers or not,
in private as well as in public places. If pushers peddle drugs only to persons known to them, then
drug abuse would not be as rampant as it is now and would not pose a serious and grave threat to
society. What actually matters is not familiarity between the seller and buyer but their agreement and
acts constituting the sale and delivery of the vile prohibited drugs.

Significantly, appellants mentioned the names of certain persons who could have bolstered their
defense but whom they inexplicably did not present as witnesses, such as Charles Revil, the owner
of the store who was present during the alleged frame-up of appellants. Some porters at the pier
were allegedly there drinking at another table, and were even identified by appellants and Lapitan as
George. Toto and Peter. These people were never called by the defense as witnesses. Paul Suizo,
the cousin of Lapitan who was with them all the time on that occasion, was also not presented.  20

Instead, despite the gravity of the case, the defense opted to merely rely on the testimonies of
Frederick Lapitan, who admitted in open court that he was testifying in favor of appellants who are
his close friends, and Emerita Tiongson, who was admittedly not only indebted to but likewise
dependent for her only means of livelihood on the mother of Osmeña. In fact, Tiongson admitted that
she testified for appellants because the mother of Osmeña told her to do so and even supplied her
the name of Frederick Lapitan whom she did not even
know. 21

In fine, the Court is convinced that a conscientious evaluation of the evidence cannot but yield the
irresistible conclusion that the disputable presumption of innocence in favor of appellant Yap has
been successfully rebutted and that his guilt for the offense charged has been duly established
beyond reasonable doubt.

WHEREFORE, the judgment of the trial court with respect to accused-appellant Edgardo Yap y
Boca is hereby AFFIRMED, with the modification that the penalty imposed should be life
imprisonment instead of reclusion perpetua and, as a consequence, the reference therein to the
accessory penalties of reclusion perpetua should be, as it is hereby, deleted.

SO ORDERED.

Narvasa, C.J., Padilla, and Puno, JJ., concur.

Nocon, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 181829               September 1, 2010

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
SATURNINO VILLANUEVA, Appellant.

DECISION

DEL CASTILLO, J.:

On appeal is the November 5, 2007 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No.
02210 which affirmed with modification the November 28, 2003 Decision2 of the Regional Trial Court
(RTC) of Tayug, Pangasinan, Branch 51. The CA found appellant Saturnino Villanueva guilty beyond
reasonable doubt of three counts of qualified rape and sentenced him to suffer the penalty of
reclusion perpetua and to pay his victim the amounts of ₱75,000.00 as civil indemnity, ₱75,000.00
as moral damages, and ₱25,000.00 as exemplary damages, for each count.

Factual Antecedents:

On November 6, 2002, three Informations were filed against appellant for the crime of rape. The
accusatory portions of the Informations read:

Crim. Case No. T-3157:

That on or about the 9th day of June, 2002, at dawn, x x x, province of Pangasinan, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused who is the father of
complainant, armed with a bladed weapon, by means of force, threat and intimidation, did then and
there willfully, unlawfully and feloniously have sexual intercourse with one "AAA,"3 a minor 12 years
of age, against her will and consent, to the damage and prejudice of said "AAA."

CONTRARY to Article 335 of the Revised Penal Code, as amended by Republic Act 8353.4
Crim. Case No. T-3158:

That on or about the 27th day of September, 1999, in the evening, at x x x, province of Pangasinan,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who is the
father of complainant, armed with a bladed weapon, by means of force, threat and intimidation, did
then and there willfully, unlawfully and feloniously have sexual intercourse with one "AAA," a minor 9
years of age, against her will and consent, to the damage and prejudicie of said "AAA."

CONTRARY to Article 335 of the Revised Penal Code, as amended by Republic Act 8353.5

Crim. Case No. T-3159:

That on or about the 28th day of September, 1999, at dawn, at x x x, province of Pangasinan,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who is the
father of complainant, armed with a bladed weapon, by means of force, threat and intimidation, did
then and there willfully, unlawfully and feloniously have sexual intercourse with one "AAA," a minor 9
years of age, against her will and consent, to the damage and prejudice of said "AAA."

CONTRARY to Article 335 of the Revised Penal Code, as amended by Republic Act 8353.6

When arraigned on November 14, 2002, appellant pleaded not guilty to all charges.7

During pre-trial, the parties stipulated that the appellant is the father of "AAA." It was likewise agreed
that "AAA" was below 12 years of age when the rape incidents happened.8 "AAA’s" birth and medical
certificates were likewise marked as Exhibits "A" and "C," respectively.9

Thereafter, the cases were tried jointly.10

Version of the Prosecution

The prosecution presented "AAA" as its witness. "AAA" narrated that when she was about 4 years
old, her mother left her in the care of her father, herein appellant. Since then, she had been living
with her father.

"AAA" claimed that appellant sexually abused her on September 27 and 28, 1999 and on June 9,
2002. During her testimony, "AAA" narrated that:

PROS. ULANDAY:

Q Will you please state your name, age and other personal circumstances?

WITNESS:

A I am "AAA," 13 years old, out-of-school youth, presently residing at x x x11

xxxx

PROS. ULANDAY:

Q Madam Witness, do you still remember September 27, 1999?

A Yes, sir.

Q Why do you remember that particular date?

A That was the birthday of my father and the date when he touched me, sir.

xxxx

Q Who rape[d] you?

A My papa, sir. Witness pointed to the accused.

xxxx

PROS. ULANDAY:

Q You claimed that your father touched and used you. How did he begin in touching you?

A He tied me, sir.

xxxx

Q What part of your body was x x x tied by your father?

A My mouth, sir.

Q What other parts of your body, if there [are] any?

A My hands and my feet, sir.

PROS. ULANDAY:

My witness is crying, your Honor.12

xxxx

Q Now, after your father tied you on September 27, 1999, what did he do, if there’s any?

A He raped me, sir.

COURT:

Q What do you mean by x x x saying he raped you?

xxxx

A He undressed me, sir.

xxxx
COURT:

And we make of record that [witness is now] in tears.13

xxxx

PROS. ULANDAY:

Q Madam Witness, during the last hearing you uttered the word "incua na." What do you
mean by that?

A He inserted his penis into my vagina, sir.

Q How long a time did your father [insert] his penis into your vagina?

A About two minutes, sir.

Q At early dawn of September 28, 1999, what happened if any, between you and your
father?

A The same, sir.

Q What do you mean by the same?

A That he inserted his penis into my vagina, sir.

Q Before your father inserted his penis into your vagina, what did he do, if there was any?

A He first undressed me, sir.

Q While he was undressing you what were you doing, if any?

A I failed to do any, sir.

Q Why did you fail to do any?

A Because I was afraid, sir.

Q Why were you afraid at the time?

A Because he threatened me, sir.

Q How did he [threaten] you?

A That if I would report the matter to anyone he would kill the person to whom I will report,
sir.

Q Do you remember June 9, 2002 at 3:00 o’clock dawn?

 A Yes, sir.

Q Why do you remember that particular date?

A Because he again raped me, sir.

Q Who raped you?

A My father, sir.

Q In what particular place [were] you raped?

A In our house, sir.

xxxx

Q You claimed that you were raped by your father, how did he rape you?

A He undressed me, sir.

Q What else did he do aside from undressing you?

A He poked a knife at me, sir.

Q And after poking a knife at you, what happened next, if any?

A Then he touched (kinuti) me, sir.

Q What part of your body was touched by your father?

A My vagina, sir.

Q How did he touch your vagina?

A He inserted his penis into my vagina, sir.

Q What happened when he inserted his penis into your vagina?

A I cried, sir.14

After the presentation of "AAA’s" testimony, the prosecution rested its case.

Version of the Defense

The defense presented appellant as its first witness. In his testimony, appellant admitted that "AAA"
is his daughter.15 He also admitted that on September 27 and 28, 1999 and June 9, 2002, he was
living in the same house as "AAA."16 However, when asked regarding the rape charges filed against
him by his daughter, appellant denied the same. Thus:
 Q And this daughter of your[s] now charge you [with] rape in Crim. Case Nos. T-
3157/3158/3159 for allegedly having sexual intercourse with her against her will and
consent. What can you say against these charges by your daughter?

A [Those are] not true, sir.17

The defense next presented Marcelino Villanueva (Marcelino) who testified that he is the father of
the appellant.18 He claimed that "AAA" filed the rape cases against appellant because the latter
forbade her to entertain suitors.19 Marcelino also alleged that after appellant was incarcerated, "AAA"
eloped with her 20-year old boyfriend and that "AAA" only separated from her boyfriend when she
was brought under the care of the Department of Social Welfare and Development.20 When asked
how old "AAA" was when she allegedly eloped with her boyfriend, Marcelino answered that "AAA"
was only 13 years old.21

Ruling of the Regional Trial Court

The trial court lent credence to the testimony of "AAA." However, it noted that although it was agreed
upon during the pre-trial that "AAA" was a minor below 12 years of age, the fact remains that "AAA"
was 12 years, six months and 19 days when she was ravished by the appellant on June 9,
2002.22 The court below also observed that "AAA has always been a pathetic child of oppression,
abuse and neglect" and that "[h]er innocence, tender age, dependence [on appellant] for survival,
and her virtual orphanhood sufficed to qualify every sexual molestation perpetrated by her father as
rape x x x."23

The dispositive portion of the Decision reads:

WHEREFORE, finding the accused SATURNINO VILLANUEVA guilty beyond reasonable doubt of
three counts of rape, defined and penalized by Article 266-A of the Revised Penal Code, perpetrated
against [his] daughter on September 27, 1999, September 28, 1999 and June 9, 2002, x x x and as
mandated by Article 266-B, same Code, the Court hereby sentences him to suffer the penalty of
DEATH for each offense, to indemnify the complainant "AAA" for damages in the amount of
₱50,000.00 per [count], and to pay the costs.

SO ORDERED.24

Ruling of the Court of Appeals

In his brief filed before the appellate court, appellant claimed that the prosecution failed to present
evidence that would overcome the presumption of his innocence. Appellant also alleged that the trial
court erred in lending credence to the unrealistic and unnatural testimony of "AAA."25 He claimed that
it was unusual for "AAA" not to offer any resistance to the advances allegedly made by him
considering that he was unarmed. According to the appellant, "AAA" should have struggled or at
least offered some resistance because she was not completely helpless.26 Appellant also suggested
that "AAA" must have been coached because initially, she did not know the acts which constitute
rape. However, during the succeeding hearings, "AAA" allegedly testified in detail the bestial acts
committed against her.27

Moreover, appellant argued that the prosecution failed to formally offer in evidence the medical
certificate and to present the doctor who conducted the medical examination to testify on his
findings.28 Likewise, "AAA’s" birth certificate was not formally offered. Neither did the Municipal Civil
Registrar who allegedly prepared the same take the witness stand. Thus appellant claimed that
assuming he was indeed guilty of the crimes charged, he should only be held liable for simple rape
and not qualified rape because the minority of the victim was not duly established.29 Further, with the
passage of Republic Act No. 9346, appellant should not be sentenced to death.30

On the other hand, appellee maintained that "AAA’s" credibility was beyond doubt31 and that it was
unnecessary to offer proof of resistance where the assailant exercised moral ascendancy against his
victim, as in this case.32 Appellee insisted that the crimes committed were three counts of qualified,
and not simple, rape considering that "AAA" was a minor and the offender was her father,33 and that
the parties had already stipulated during pre-trial as regards the age of the victim.34

On November 5, 2007, the appellate court rendered its Decision disposing thus:

WHEREFORE, premises considered, the Decision dated 28 November 2003 of the Regional Trial
Court of Tayug, Pangasinan, Branch 51 in Crim. Case Nos. T-3157, T-3158 and T-3159 finding
accused-appellant Saturnino Villanueva guilty beyond reasonable doubt of three (3) counts of
qualified rape under Articles 266-A and 266-B is AFFIRMED with the MODIFICATION that pursuant
to Republic Act No. 9346, the penalty of death imposed on appellant is reduced to reclusion
perpetua for each count of qualified rape, without eligibility for parole under Act No. 4103, as
amended. Further, accused-appellant is ordered to pay the private complainant/victim ["AAA"], for
each count of qualified rape, the amounts of Php 75,000.00 as civil indemnity, Php 75,000.00 as
moral damages and Php 25,000.00 as exemplary damages.

SO ORDERED.35

The appellate court found no reason to reverse the findings of the trial court on the credibility of
"AAA."36 Although there were occasions when "AAA" would not immediately answer the questions
propounded to her, the CA opined that it was because she was either distressed in recounting her
horrible experiences or in tears.37 The appellate court likewise considered the fact that "AAA" was
only 13 years old when she testified on her harrowing experiences.38

The appellate court likewise brushed aside appellant’s contention that "AAA" did not offer any
resistance. According to the CA, appellant’s moral ascendancy over "AAA" substitutes for violence
or intimidation.39

The CA also concluded that even without the medical certificate, appellant could still be held liable
for three counts of rape. His conviction could rest exclusively on the credible testimony of "AAA" and
the medical certificate would only be corroborative evidence.40 Anent the birth certificate, the CA
recalled that during pre-trial, the minority of the victim and her relationship with the appellant had
already been stipulated upon. Hence, the said elements have been sufficiently alleged in the
Informations and proven during trial.41

Finally, the CA held that appellant’s denial is intrinsically weak and self-serving especially
considering "AAA’s" credible and straightforward testimony.42

Our Ruling

Both the appellant and the appellee opted not to file their supplemental briefs.43

The appeal is partly meritorious.

At the outset, we must state that we entertain no doubt that appellant thrice raped his daughter,
"AAA." We examined the records and we find "AAA’s" testimony convincing and straightforward. We
therefore have no reason to reverse or modify the findings of the trial court on the credibility of the
victim’s testimony, more so in this case where the said findings were affirmed by the CA.

We also agree with the ruling of the appellate court that appellant could be convicted of rape even
without the medical certificate. "In rape cases, the accused may be convicted solely on the testimony
of the victim, provided the testimony is credible, natural, convincing, and consistent with human
nature and the normal course of things."44 As stated above, "AAA’s" testimony was credible and
convincing. As such, appellant’s conviction could rest solely on it. The medical certificate would only
serve as corroborative evidence.

We, however, agree with the appellant that both the medical certificate and "AAA’s" birth certificate,
although marked as exhibits during the pre-trial, should not have been considered by the trial court
and the CA because they were not formally offered in evidence. Section 34, Rule 132 of the Rules of
Court explicitly provides: "The court shall consider no evidence which has not been formally offered.
The purpose for which the evidence is offered must be specified."

In this case, we note that after the marking of the exhibits during pre-trial, the prosecution did not
formally offer the said medical certificate or birth certificate in evidence. In fact, the prosecution
rested its case after presenting the testimony of "AAA" without formally offering any documentary
exhibit at all.

Our ruling in Heirs of Pedro Pasag v. Parocha45 is instructive, thus:

The rule on formal offer of evidence is not a trivial matter. Failure to make a formal offer within a
considerable period of time shall be deemed a waiver to submit it. Consequently, as in this case, any
evidence that has not been offered shall be excluded and rejected.

xxxx

The Rules of Court [provide] that ‘the court shall consider no evidence which has not been formally
offered.’ A formal offer is necessary because judges are mandated to rest their findings of facts and
their judgment only and strictly upon the evidence offered by the parties at the trial. Its function is to
enable the trial judge to know the purpose or purposes for which the proponent is presenting the
evidence. On the other hand, this allows opposing parties to examine the evidence and object to its
admissibility. Moreover, it facilitates review as the appellate court will not be required to review
documents not previously scrutinized by the trial court.

xxxx

Thus, the trial court is bound to consider only the testimonial evidence presented and exclude the
documents not offered. Documents which may have been identified and marked as exhibits during
pre-trial or trial but which were not formally offered in evidence cannot in any manner be treated as
evidence. Neither can such unrecognized proof be assigned any evidentiary weight and value. It
must be stressed that there is a significant distinction between identification of documentary
evidence and its formal offer. The former is done in the course of the pre-trial, and trial is
accompanied by the marking of the evidence as an exhibit; while the latter is done only when the
party rests its case. The mere fact that a particular document is identified and marked as an exhibit
does not mean that it has already been offered as part of the evidence. It must be emphasized that
any evidence which a party desires to submit for the consideration of the court must formally be
offered by the party; otherwise, it is excluded and rejected.46ten.lihpwal
We reiterated the above ruling in Dizon v. Court of Tax Appeals47 where one of the issues presented
was whether the Court of Tax Appeals and the CA gravely abused their discretion "in allowing the
admission of the pieces of evidence which were not formally offered" by the Bureau of Internal
Revenue.48 In finding the case impressed with merit, the Court held that:

Under Section 8 of RA 1125, the CTA is categorically described as a court of record. As cases filed
before it are litigated de novo, party-litigants shall prove every minute aspect of their cases.
Indubitably, no evidentiary value can be given the pieces of evidence submitted by the BIR, as the
rules on documentary evidence require that these documents must be formally offered before the
CTA. x x x

xxxx

x x x [T]he presentation of the BIR’s evidence is not a mere procedural technicality which may be
disregarded considering that it is the only means by which the CTA may ascertain and verify the
truth of BIR’s claims against the Estate. The BIR’s failure to formally offer these pieces of evidence,
despite CTA’s directives, is fatal to its cause. Such failure is aggravated by the fact that not even a
single reason was advanced by the BIR to justify such fatal omission. This, we take against the
BIR.49

We are not unaware that there is an exception to the above-stated rule. In People v. Mate,50 Silvestre
Mate (Mate) was charged with the crime of "Kidnapping for Ransom with Murder and Frustrated
Murder."51 During arraignment, he entered a plea of "guilty." The court then propounded clarificatory
questions to determine whether the accused understood the consequences of his plea. Immediately
thereafter, the trial court promulgated its decision finding the accused guilty as charged and
sentenced him to death.52 It was only after the rendition of the judgment that the trial court conducted
hearings for the reception of the prosecution’s evidence.53

From the prosecution’s evidence, it would appear that during the investigation, Mate voluntarily
made extra-judicial statements as contained in Exhibits "A," "B," and "J." Also, after his conviction,
he appeared as witness for the prosecution against his co-accused where he affirmed his extra-
judicial statements in Exhibits "A," "B," and "J." However, the state prosecutor failed to formally offer
said exhibits.

In debunking the defense’s contentions that the trial court erred in rendering a judgment of
conviction on Mate even before the prosecution could present its evidence, and in considering the
exhibits which were not formally offered, the Court held thus:

The defense contends that the trial court committed a serious error in rendering judgment of
conviction immediately after Mate had pleaded guilty to the crime charged on the basis of his plea of
guilty and before receiving any evidence. While the trial court committed an error in rendering
judgment immediately after the accused had pleaded guilty, and, thereafter, conducted hearings for
the reception of the evidence for the prosecution, such an irregularity, is insufficient to justify the
setting aside of the judgment of conviction, considering that it is supported by the judicial and extra-
judicial confessions of the accused and by other evidence. x x x

xxxx

The defense questions also the failure of the state prosecutor Cornelio Melendres to make a formal
offer of his exhibits, although they have been marked and identified. Such an oversight appears
trivial because the entire evidence for the prosecution is recorded. Even without the exhibits which
have been incorporated into the records of the case, the prosecution can still establish the case
because the witnesses properly identified those exhibits and their testimonies are recorded.

Exhibits "A", "B", and "J" are all admissible against Mate because it appears with clarity that he
voluntarily and spontaneously gave those narrations without compulsion from anybody. In fact, . . .
when he testified against Ben Bohol he affirmed those narrations again.54

In Mato v. Court of Appeals,55 we concretized the above ruling by holding that evidence, although not
formally offered in evidence, may be "admitted and considered by the trial court provided the
following requirements are present, viz: first, the same must have been duly identified by testimony
duly recorded and, second, the same must have been incorporated in the records of the case."56 In
Ramos v. Dizon,57 we deemed the exhibits to have been incorporated into the records because they
had been "presented and marked during the pre-trial of the case."58 Likewise, the first requisite was
deemed satisfied because one of the parties therein explained the contents of the exhibits when
interrogated by the respondents’ counsel.59

In the instant case, we find the rulings espoused in People v. Mate,60 Mato v. Court of Appeals,61 and
Ramos v. Dizon62 not applicable. Thus, we find that both the trial court and the CA erred in allowing
the admission of "AAA’s" medical certificate and birth certificate. The records would show that the
lone witness for the prosecution did not identify the said exhibits or explain their contents. When
"AAA" was placed on the witness stand, she merely stated that she was 13 years old. No reference
was ever made to her birth certificate. The same is true with the medical certificate. After the
marking during the pre-trial, the prosecution did not refer to it in any stage of the proceedings.
Neither did it present the doctor who prepared the same.

Moreover, appellant’s admission during the pre-trial that "AAA" was a minor below 12 years of
age63 would not help the prosecution’s case. First, the trial court found this admission inaccurate as
in fact, "AAA" was already above 12 years of age when the rape incident transpired on June 9, 2002.
Second and more important, appellant’s admission during pre-trial is not admissible as it violates
Section 2, Rule 118 of the Rules of Court which explicitly provides that: "All agreements or
admissions made or entered during the pre-trial conference shall be reduced in writing and signed
by the accused and his counsel, otherwise they cannot be used against the accused. x x x." In
People v. Chua Uy,64 we held that:

Even granting for the sake of argument that RAMON admitted during the pre-trial that Exhibits "D" to
"D-4", inclusive, and Exhibit "E" contained methamphetamine hydrochloride, the admission cannot
be used in evidence against him because the Joint Order was not signed by RAMON and his
counsel. Section 4 of Rule 118 of the Rules of Court expressly provides:

SEC. 4. Pre-trial agreements must be signed. No agreement or admission made or entered during
the pre-trial conference shall be used in evidence against the accused unless reduced to writing and
signed by his counsel.

Put in another way, to bind the accused the pre-trial order must be signed not only by him but his
counsel as well. The purpose of this requirement is to further safeguard the rights of the accused
against improvident or unauthorized agreements or admissions which his counsel may have entered
into without his knowledge, as he may have waived his presence at the pre-trial conference;
eliminate any doubt on the conformity of the accused of the facts agreed upon.

In this case, records would show that the Pre-trial Order was not signed by both appellant and his
counsel.
In view of the foregoing, we find that the prosecution did not present any satisfactory evidence to
prove "AAA’s" minority. "In the prosecution of criminal cases, x x x, nothing but proof beyond
reasonable doubt of every fact necessary to constitute the crime with which an accused is charged
must be established. Qualifying circumstances or special qualifying circumstances must be proved
with equal certainty and clearness as the crime itself; otherwise, there can be no conviction of the
crime in its qualified form. As a qualifying circumstance of the crime of rape, the concurrence of the
victim’s minority and her relationship to the accused-appellant must be both alleged and proven
beyond reasonable doubt."65

In view of the foregoing, we find appellant guilty only of three counts of simple rape66 the penalty for
which is reclusion perpetua for each count. Accordingly, the awards of civil indemnity must be
reduced to ₱50,000.00 and moral damages to ₱50,000.00. Finally, the award of exemplary damages
is proper. "Exemplary damages may be awarded in criminal cases as part of civil liability if the crime
was committed with one or more aggravating circumstances. Relationship as an alternative
circumstance under Article 15 of the Revised Penal Code is considered aggravating in the crime of
rape."67 In this case, the aggravating circumstance of relationship was duly established. Appellant
himself admitted when he testified in open court that he is "AAA’s" father. However, the award of
₱25,000.00 as exemplary damages must be increased to ₱30,000.00 in line with prevailing
jurisprudence.68

WHEREFORE, we find appellant Saturnino Villanueva GUILTY of three counts of simple rape and
accordingly sentence him to suffer the penalty of reclusion perpetua and to indemnify his victim
"AAA" the amounts of ₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages, and
₱30,000.00 as exemplary damages, for each count.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 122539 March 4, 1999

JESUS V. TIOMICO, petitioner,
vs.
THE HON. COURT OF APPEALS (FORMER FIFTH DIVISION) and PEOPLE OF THE
PHILIPPINES, respondent.

PURISIMA, J.:
This is a petition for review by certiorari under Section 2, Rule 125, in relation to Section 1, Rule 45
of the Rules of Court to correct, reverse and annul the decision   of the Court of Appeals which
1

affirmed the judgment   of the trial court convicting the petitioner herein for a violation of the Trust
2

Receipts Law.

Petitioner Jesus V. Tiomico, (Tiomico) opened a Letter of Credit with the Bank of the Philippine
Islands (BPI) for $5,600 to be used for the importation of two (2) units of Forklifts, Shovel loader and
a truck mounted with crane. On October 29, 1982, the said machineries were received by the
accused, as evidenced by the covering trust receipt. Upon maturity of the trust receipt, on December
28, 1982, he made a partial payment of US$855.94, thereby leaving an unpaid obligation of
US$4,770.46. As of December 21, 1989, Tiomico owed BPI US$4,770.46, or P109,386.65,
computed at P22.93 per US dollar, the rate of exchange at the time. Failing to pay the said amount
or to deliver subject machineries and equipments, despite several demands, the International
Operations Department of BPI referred the matter to the Legal Department of the bank. But the letter
of demand sent to him notwithstanding, Tiomico failed to satisfy his monetary obligation sued upon.

Consequently, he was accused of a violation of PD 115, otherwise known as the Trust Receipts
Law, under an Information   alleging:
3

That on or about the 29th day of October, 1982, in the Municipality of Makati, Metro,
Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, executed a Trust Receipt Agreement for and in behalf of Paramount
Calibrators Merchandising of which he is the sole proprietor in favor of the Bank of
the Philippine Islands. In consideration of the receipt by the said accused of three (3)
bares one unit Forklift Model FD-30 Toyota Branch 2-J70 Hp and one unit Forklift
Model LM-301 Toyota Branch 2-J 70 Hp and one unit shovel loader Model SOT 130
HP, 6 Cyl-LC #2-16860, for which there is now due the sum of US$5600.00, wherein
the accused agreed to sell the same and with the express obligation to remit to the
complainant-bank the proceeds of the sale, and/or to turn over the same if not sold,
on demand, but the accused once in possession of the said items, far from
complying with his obligation, with unfaithfulness and abuse of confidence, did then
and there wilfully, unlawfully and feloniously misappropriate, misapply and convert
the same to his own personal use and benefit despite repeated demands, failed and
refused and still fails and refuses account for and/or remit the proceeds of the sale
thereof, to the damage and prejudice of the said complainant-bank as represented by
Lourdes V. Palomo in the aforementioned amount of US $5600 or its equivalent in
Philippine currency.

Contrary to law.

Arraigned thereunder, Tiomico entered a plea of Not Guilty, at which juncture, Assistant Provincial
Prosecutor John B. Egana manisfested that he was authorizing the private prosecutor, Atty. Jose B.
Soncuya, to prosecute the case subject to his direction, supervision and control.

On October 16, 1989, Gretel S. Donato was presented to testify for the prosecution. According to
her, she worked for the Bank of the Philippine Islands (BPI) in 1981 and in 1982, she was assigned
as one of the Letter of Credit processors in the International Operations Department of BPI. Her
duty, among others, was to process letter of credit applications which included that of Tiomico. The
trust receipt executed by the latter was given to her as part of the documents supporting his Letter of
Credit.
The following documents presented in the course of the testimony of Donato were identified by her
as follows:

(1) Exhibit "A" — Letter of Credit;

(2) Exhibit "B" — Pro Forma Invoice;

(3) Exhibit "C" — Letter of Credit Confirmation;

(4) Exhibit "D" — Trust Receipt; Exhibit D1-D4 — signatures thereon;

(5) Exhibit "E" — Statement of Account, the amount of P306,708.17

appearing therein, as Exhibit E-1, and the signature thereto of an
unidentified bank officer, as Exhibit E-2;

(6) Exhibit "F" — Letter of Demand of the bank's legal department; a

return card, as Exhibit F-1, and the signature of the addressee's
agent, as Exhibit F-1 A.

Counsel for petitioner objected to the admission of Exhibits "A", "B", "C" and "D" on the ground that
witness failed to identify the said documents inasmuch as her testimony regarding the signatures
appearing therein were evidently hearsay. But the trial court admitted the said documentary
evidence, despite the objections raised thereto by the defense. Thereafter, the prosecution rested.

After the People rested its case, petitioner begged leave to file a demurrer to the evidence,
theorizing that the evidence on record does not suffice to prove beyond reasonable doubt the
accusation against him. But instead of granting the said motion of the defense, the trial court ordered
a re-opening of the case, so as to enable the prosecution to adduce more evidence. The defense
objected but to no avail. The trial court proceeded with the continuation of trial "in the interest of
justice".

On September 5, 1990, the-lower court denied the demurrer to evidence. The Motion for
Reconsideration of the defense met the same fate. It was denied. The case was then set for
continuation of trial on December 12, 1990. Reception of evidence for the defense was set on
January 7, 1991. But on January 4, 1991, three days before the scheduled continuation of trial, the
defense counsel filed an Urgent Motion for Postponement for the given reason that he had to appear
before Branch 12 of the Metropolitan Trial Court of Manila on January 7, 1991.

On January 7, 1991, the lower court denied the Urgent Motion for Postponement and adjudged
petitioner to have waived the right to introduce evidence on his behalf.

On January 30, 1991, the trial court promulgated its decision finding petitioner guilty of a violation of
PD 115, and sentencing him accordingly.

On appeal, the Court of Appeals came out with a judgment of affirmance, the dispositive portion
which, is to the following effect:

WHEREFORE, the Court finds JESUS V. TIOMICO guilty beyond reasonable doubt
of violation of PD 115 and is hereby sentenced to suffer an indeterminate penalty of
ten (10) years of prision mayor as minimum, to fifteen (15) years of reclusion
 temporal as maximum; to indemnify Bank of the Philippine Islands the sum of
P109,386.65 and to pay the costs.

SO ORDERED.  4

Undaunted, petitioner found his way to this Court via the Petition for Review by Certiorari at bar,
seeking to annul the decision   of the Court of Appeals; raising as issues:
5

(1) WHETHER OR NOT PD 115 OR TRUST RECEIPTS LAW IS

UNCONSTITUTIONAL;

(2) WHETHER OR NOT A TESTIMONY CAN BE ADMITTED

DESPITE THE ABSENCE OF FORMAL OFFER AS REQUIRED BY
SECTIONS 34 AND 35, RULE 132, OF THE REVISED RULES OF
COURT;

(3) WHETHER OR NOT THE TESTIMONY OF WITNESS WITH

REGARD TO THE LETTER OF CREDIT AND OTHER DOCUMENT
IS HEARSAY AND;

(4) WHETHER OR NOT THERE WAS DEPRIVATION OF DUE

PROCESS ON THE RIGHTS OF THE ACCUSED WHEN THE TRIAL
COURT DENIED THE MOTION FOR POSTPONEMENT BY THE
DEFENSE COUNSEL.

As regards the first issue, the Court has repeatedly upheld the validity of the Trust Receipts Law and
consistently declared that the said law does not violate the constitutional proscription againts
imprisonment for non-payment of debts. (People vs. Cuevo, 104 SCRA 312; People vs. Nitafan, 207
SCRA 726; Lee vs. Rodil, 175 SCRA 100). Such pronouncement was thoroughly explained in Lee
vs. Rodil (supra) thus:

Verily, PD 115 is a declaration by the legislative authority that, as a matter of public

policy, the failure of a person to turn over the proceeds of the sale of goods covered
by a trust receipt or to return said goods if not sold is a public nuisance to be abated
by the imposition of penal sanctions. As held in Lozano vs. Martinez (146 SCRA 323,
338):

. . . certainly, it is within the authority of the lawmaking body to

prescribe certain act deemed pernicious and inimical to public
welfare. Acts mala in se are not the only acts that the law can punish.
An act may not be considered by society as inherently wrong, hence,
not malum in se, but because of the harm that it inflicts on the
community, it can be outlawed and criminally punished as malum
prohibitum. The State can do this in the exercise of its police power.

In fine, PD 115 is a valid exercise of police power and is not repugnant to the
constitutional provision of non-imprisonment for non-payment of debt.

In a similar vein, the case of People vs. Nitafan (supra) held:

 The Trust Receipts Law punishes the dishonesty and abuse of
confidence in the handling of money or goods to the prejudice of
another regardless of whether the latter is the owner or not. The law
does not seek to enforce payment of a loan. Thus, there can be no
violation of the right against imprisonment for non-payment of a debt.

Anent the second issue, the pivotal question is: Should the testimony of a witness be admitted
despite the failure of the proponent to offer it formally in evidence, as required by Section 34 of Rule
132  ? We rule on this issue in the affirmative.
6

Records disclose that the private prosecutor stated the purpose of the testimony in question
although he did not formally offer the same. The proceedings   went on as follows:
7

ATTY. SONCUYA:

The purpose of the testimony of the witness is to prove that the accused applied for a
letter of credit, for the opening of a letter of credit and for the importation of
machinery from Japan and that those machinery were delivered and received by the
accused as evidenced by the trust receipt and that the accused failed to comply with
the terms and conditions of the said trust receipt, your Honor.

COURT:

All right, proceed.

As aptly stressed by the Solicitor General in his Comment,   "the absence of the words, 'we are
8

formally offering the testimony for the purpose of . . .'" should be considered merely as an excusable
oversight on the part of the private prosecutor.

It should be borne in mind that the rationale behind Section 34 of Rule 132   is to inform the Court of
9

the purpose of the testimony, to enable the judge to rule whether the said testimony is necessary or
is irrelevant or immaterial.

In the case under scrutiny, since the purpose of subject testimony was succinctly stated, the reason
behind the requirement for its formal offer has been substantially complied with. What the defense
counsel should have done should have been to interpose his objection the moment the private
respondent was called to testify, on the ground that there was no prior offer made by the
proponent. 10

The tendency of the rules on evidence, is towards substantial justice rather than strict adherence to
technicalities. To condemn the disputed testimony as inadmissible due to the failure of the private
prosecutor to properly observe the rules on presentation of evidence, would render nugatory, and
defeat the proceedings before the lower court.

On the third issue — whether or not the witness can testify on subject documents introduced as
evidence despite her admission that she did not see the accused sign the said exhibits, we likewise
rule in the affirmative.

As aptly held by the appellate court: 11

 Gretel Donato testified that she was not present when appellant affixed his signature
on the documents in question (p. 22 ibid). She, however, identified the signatures
thereon (Exhs. "A-1", "A-2", "D-1", "D-2" and "D-3", Letter of Credit; Exhibit B — Pro
Forma Invoice; Exhibit C — Letter of Credit Confirmation; Exhibit D-Trust Receipt;
Exhibit D1-D4 — signatures thereon; pp. 129 and 132 of Orig. Rec.) as those of the
appellant Jesus V. Tiomico arising from her familiarity therewith inasmuch as she
was the one who processed the papers pertinent to the transactions between the
appellant and the complainant bank (TSN, Feb. 5, 1990, pp 4-6). Her testimony,
therefore, cannot be considered hearsay because it is principally based on her
personal knowledge of bank transactions and the documents and records which she
processes in the regular course of the bank's business operations.

It is not essential to the competence of a lay witness to express opinions on the genuineness of
handwritings that he did see the person in question
write.  It is enough that the witness has so adopted the same into business transactions as to induce
12

a reasonable presumption and belief of genuineness of the document. This is due to the fact that in
the ordinary course of business, documents purporting to be written or signed by that person have
been habitually submitted to the witness, or where knowledge of handwriting is acquired by him in an
official capacity. 
13

Did the witness gain familiarity with the signature of the accused? The answer is yes. Exhibits "A" to
"D": Letter of Credit, Pro-Forma Invoice, Letter of Credit Confirmation and Trust Receipt,
respectively, were all familiar to the witness since the said documents bearing the signature of the
accused were all submitted to her for processing. It is therefore beyond cavil that she acquired
sufficient familiarity to make witness competent to testify on the signatures appearing in subject
documents. From the time of the application to its approval and when Tiomico defaulted, she
(witness) was the one who had overseen the transactions and recommended the actions to be taken
thereon. As a matter of fact, she was the one who referred the failure of Tiomico to pay his balance
to Tiomico to pay his balance to the Legal Department of BPI, prompting the said legal department
to send him (Tiomico) a demand letter.

Furthermore, whether there was due execution or authencity of such documents was impliedly
admitted by the accused. On this point, we quote with approval the conclusion reached by the Court
of Appeals, to wit:  14

On the other hand, appellant impliedly admitted the due execution of the assailed
documents considering that he did not deny the fact that he opened a letter of credit.
Neither did he deny that the signature appearing thereon is his. What appellant
intended to dispute was merely the balance of his past due account with the
complainant bank, thus:

COURT

Denied.

What is the defense of the accused?

Denial that he opened the letter of credit.

ATTY. EBRO
 No, you honor.

COURT: What is the defense?

x x x           x x x          x x x

ATTY. EBRO.

Q: — Now you identified signatures allegedly of the accused on

Exhibit A, which is the application for the letter of credit, I ask you
Miss Donato, were you personally present when this signature was
affixed to the document?

A: — (witness going over Exhibit A) I was the one of the ones who
processed the letter of credit.

ATTY. EBRO

May we ask for an order directing that the witness respond to my

question.

COURT

Just answer the question.

WITNESS

A: — No, sir.

COURT

Does the accused deny the signature?

ATTY. EBRO

No, your Honor. I am just showing also that she has been
exaggerating.

(TSN, Feb. 5, 1990, pp. 12-13, p. 22)

In light of the foregoing, it stands to reason and conclude that the documents under scrutiny are
admissible in evidence, as held by the trial court.

Anent the fourth issue, petitioner theorizes that the denial of the motion for postponement sent in by
his lawyer violated his constitutional right to due process.

It should be stressed that subject Urgent Motion for Postponement was not the first motion for
resetting ever presented by the counsel for petitioner. On December 12, 1990, upon motion of the
latter, and without objection on the part of the prosecution, the reception of evidence for the defense
was reset once more to January 7, 1991, at 8:30 in the morning.
The most basic tenet of due process is the right to be heard. Where a party had been afforded an
opportunity to participate in the proceedings but failed to do so, he cannot complain of deprivation of
due process.   Due process is satisfied as long as the party is accorded an opportunity to be heard.
15

If it is not availed of, it is deemed waived or forfeited without violating the Bill of Rights. 16

It is further theorized by petitioner that the lower court should have at least granted him another trial
date so as to enable him to present his evidence, so that the denial of his Urgent Motion for
Postponement infringed his constitutional right to be heard by himself and by counsel.   This 17

submission is unsustainable.

When an accused is accorded a chance to present evidence on his behalf but due to his repeated
unjustifiable failure to appear at the trial without any justification, the lower court order's the case
submitted for decision on the basis of the evidence on record, said judicial action is not tainted with
grave abuse of discretion because in such a case, the accused is deemed to have waived the right
to adduce evidence on his behalf.  18

Furthermore, records show that in this case the defense counsel did not even bother to appear for
the scheduled reception of evidence for his client on January 7, 1991, notwithstanding the fact that
the trial court did not act upon, much less grant, the Urgent Motion for Postponement which he filed
on January 4, 1991. Lawyers should never presume that their motions for postponement would be
granted.  19

A motion for continue or postponement is not a matter of right. It is addressed to the sound
discretion of the Court. Action thereon will not be disturbed by appellate courts, in the absence of
clear and manifest abuse of discretion resulting in a denial of substantial justice.  20

Motions for postponement are generally frowned upon by Courts if there is evidence of bad faith,
malice or inexcusable negligence on the part of the movant.  The inadvertence of the defense of the
21

defense counsel in failing to take note of the trial dates and in belatedly informing the trial court of
any conflict in his schedules of trial or court appearances, constitutes inexcusable negligence. It
should be borne in mind that a client is bound by his counsel's conduct, negligence and mistakes in
handling the case.  22

As gleanable from the records:

. . . Attached to the motion is the Order of said court dated November 19, 1990.
Obviously, when the case was called on December 12, 1990, the counsel for the
accused had already known of the scheduled hearing before the Metropolitan Trial
Court, yet he agreed to the hearing on January 7, 1991. Counsel's conduct is not
consistent with the thrust of the Judiciary to expedite the termination of cases under
the Mandatory Continuous Trial . . . 23

A lawyer as an officer of the court is part of the judicial machinery in the administration of justice. As
such, he has a responsibility to assist in the proper and sound administration of justice. Like the
court itself, he is an instrument to advance its ends and the speedy, efficient, impartial, correct and
inexpensive adjudication of cases. A lawyer should not only help to attain these objectives. He
should also avoid improper practices that impede, obstruct or prevent their realization, charged as
he is with the primary task of assisting the court in the speedy and efficient administration of
justice. 
24
Petitioner invites attention to the Affidavit of Desistance by the Bank of the Philippine Islands (BPI).
This issue raised by the petitioner cannot be entertained as it was only raised for the first time on
appeal. 25

Considering that the assailed decision is firmly anchored on prevailing law and established
jurisprudence, the Court cannot help but deny the petition.

WHEREFORE, the petition is DENIED and the decision of the Court of Appeals, dated May 31,
1995, affirming the judgment of conviction rendered on January 28, 1991 by the court of origin
AFFIRMED. No pronouncement as to costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 155483             April 27, 2007

HEIRS OF PEDRO PASAG, represented by EUFREMIO PASAG; HEIRS OF MARIA PASAG,

represented by EPIFANIA LUMAGUI; HEIRS OF JUANITA PASAG, represented by ASUNCION
ORTIOLA; HEIRS OF ISIDRO PASAG, represented by VIRGINIA P. MENDOZA; HEIRS OF
BASILIO PASAG, represented by MILAGROSA P. NABOR; and HEIRS OF FORTUNATA
PASAG, represented by FLORENTINA S. MEMBRERE, Petitioners,
vs.
Sps. LORENZO and FLORENTINA PAROCHA, PRISCILLA P. ABELLERA, and MARIA VILORIA
PASAG, Respondents.

DECISION

VELASCO, JR., J.:

The rule on formal offer of evidence is not a trivial matter. Failure to make a formal offer within a
considerable period of time shall be deemed a waiver to submit it. Consequently, as in this case, any
evidence that has not been offered shall be excluded and rejected.

The Case

The present Petition for Review on Certiorari under Rule 45 seeks the annulment of the February 15,
2002 Decision1 of the Court of Appeals (CA) in CA-G.R. CV No. 68544, and its September 6, 2002
Resolution2 denying petitioners’ Motion for Reconsideration. In effect, petitioners entreat this Court to
nullify the February 24, 2000 Resolution of the Urdaneta City Regional Trial Court (RTC), Branch 45
in Civil Case No. U-5743, granting the demurrer to evidence filed by respondents and dismissing
their Complaint, which ruling was upheld by the CA.

The Facts
The instant case arose from a Complaint for Declaration of Nullity of Documents and Titles,
Recovery of Possession and Ownership, Reconveyance, Partition and Damages filed by petitioners
at the Urdaneta City RTC of Pangasinan against respondents. Petitioners alleged a share over three
(3) properties owned by respondents, which formed part of the estate of petitioners’ deceased
grandparents, Benito and Florentina Pasag. They averred that Benito and Florentina Pasag died
intestate, thus, leaving behind all their properties to their eight (8) children––Pedro, Isidro, Basilio,
Severino, Bonifacio, Maria, Juanita, and Fortunata. However, Severino, the predecessor of
respondents, claimed in an affidavit of self-adjudication that he is the sole, legal, and compulsory
heir of Benito and Florentina Pasag. Consequently, he was able to appropriate to himself the
properties covered by Original Certificates of Title (OCT) Nos. 2983 and 1887. Thereafter, Severino
executed a deed of absolute sale over the said properties in favor of his daughter, respondent
Florentina Parocha. Moreover, petitioners alleged that Severino used the same affidavit of self-
adjudication to secure a free patent over an agricultural land that had long been under the
possession of Benito and Florentina Pasag.

In denying the material allegations in the Complaint, respondents averred in their Answer that the
properties left behind by the spouses Benito and Florentina Pasag had already been partitioned
among their eight (8) surviving children. They claimed that the parcels of land covered by OCT Nos.
2983 and 1887 are Bonifacio’s share of which he later on renounced in a Quitclaim Deed in favor of
his brother, Severino. As regards the parcel of land covered by OCT No. P-20607, respondents
asserted that the said land had been in Severino’s possession and occupation since 1940, thus,
giving him the right to apply for and be granted a free patent over it. Having complied with the
requirements of law, Severino’s title had now become indefeasible.

The trial of the case commenced on March 19, 1996. On March 9, 1999, petitioners rested their case
and were granted ten (10) days within which to submit their formal offer of documentary exhibits.
However, petitioners failed to submit the said pleading within the required period.

On April 19, 1999, petitioners asked the trial court to give them until May 11, 1999 to submit their
offer of evidence; and it subsequently granted their motion. However, on May 11, 1999, they again
failed to submit their offer of evidence and moved for another extension of five (5) days.

Unfortunately, petitioners still failed to submit their formal offer of evidence within the extended
period. Consequently, in its June 17, 1999 Order,3 the trial court deemed waived petitioners’ right to
make their formal offer of evidence.

On July 27, 1999, petitioners moved for the admission of their offer of evidence. On September 1,
1999, however, the trial court issued an Order4 denying petitioners’ formal offer of evidence for their
"consistent failure"5 to submit it.

On October 28, 1999, respondents filed a Motion to Dismiss on Demurrer to Evidence.

On February 24, 2000, in its Resolution,6 the trial court granted respondents’ demurrer to evidence
and ordered the dismissal of the Complaint. Petitioners’ Motion for Reconsideration was denied for
lack of merit.

Petitioners appealed the case to the CA.

The Ruling of the Court of Appeals

Affirming the ruling of the trial court, the CA held that petitioners failed to prove their claim by a
preponderance of evidence. It observed that "no concrete and substantial evidence was adduced by
[petitioners]"7 to substantiate their allegation that Severino, the predecessor of respondents,
fraudulently executed an affidavit of self-adjudication in order to exclude petitioners from the
settlement of the estate of Benito and Florentina Pasag.

The Issues

Petitioners submit the following issues for our consideration:

I.

The Hon. Court of Appeals committed reversible error in affirming the Decision of the Court a quo
despite the gross negligence of their counsel thus depriving their rights to due process.

II.

The Court of Appeals committed reversible error in affirming the Decision of the trial court instead of
remanding the case for further proceedings to clearly establish their respective claims on the subject
properties.8

Simply stated, the issues revolve on the propriety of the following: (1) waiver of petitioners’ offer of
documentary evidence; and (2) dismissal of the Complaint on a demurrer to evidence.

The Court’s Ruling

The petition has no merit.

Waiver of the Offer of Evidence

The Rules of Court provides that "the court shall consider no evidence which has not been formally
offered."9 A formal offer is necessary because judges are mandated to rest their findings of facts and
their judgment only and strictly upon the evidence offered by the parties at the trial.10 Its function is to
enable the trial judge to know the purpose or purposes for which the proponent is presenting the
evidence.11 On the other hand, this allows opposing parties to examine the evidence and object to its
admissibility. Moreover, it facilitates review as the appellate court will not be required to review
documents not previously scrutinized by the trial court.12

Strict adherence to the said rule is not a trivial matter. The Court in Constantino v. Court of
Appeals13 ruled that the formal offer of one’s evidence is deemed waived after failing to submit it
within a considerable period of time. It explained that the court cannot admit an offer of evidence
made after a lapse of three (3) months because to do so would "condone an inexcusable laxity if not
non-compliance with a court order which, in effect, would encourage needless delays and derail the
speedy administration of justice."14

Applying the aforementioned principle in this case, we find that the trial court had reasonable ground
to consider that petitioners had waived their right to make a formal offer of documentary or object
evidence. Despite several extensions of time to make their formal offer, petitioners failed to comply
with their commitment and allowed almost five months to lapse before finally submitting it.
Petitioners’ failure to comply with the rule on admissibility of evidence is anathema to the efficient,
effective, and expeditious dispensation of justice. Under the Rule on guidelines to be observed by
trial court judges and clerks of court in the conduct of pre-trial and case of deposition and discovery
measures,15 it is provided that:

On the last hearing day allotted for each party, he is required to make his formal offer of evidence
after the presentation of his last witness and the opposing party is required to immediately interpose
his objection thereto. Thereafter the judge shall make the ruling on the offer of evidence in open
court. However, the judge has the discretion to allow the offer of evidence in writing in conformity
with Section 35, Rule 132[.]

On the other hand, Section 35 of Rule 132 of the Rules of Court provides that "documentary and
object evidence shall be offered after the presentation of a party’s testimonial evidence." It requires
that "such offer shall be done orally unless allowed by the Court to be done in writing."

The pre-trial guidelines and Sec. 35 of Rule 132 jointly considered, it is made clear that the party
who terminated the presentation of evidence must make an oral offer of evidence on the very day
the party presented the last witness. Otherwise, the court may consider the party’s documentary or
object evidence waived. While Sec. 35 of Rule 132 says that the trial court may allow the offer to be
done in writing, this can only be tolerated in extreme cases where the object evidence or documents
are large in number––say from 100 and above, and only where there is unusual difficulty in
preparing the offer.

The party asking for such concession should however file a motion, pay the filing fee, set the date of
the hearing not later than 10 days after the filing of the motion,16 and serve it on the address of the
party at least three (3) days before the hearing.17 In short, it is a litigated motion and cannot be done
ex parte. Counsels for parties should not however rely on the benevolence of the trial court as they
are expected to have thoroughly and exhaustively prepared for all possible pieces of evidence to be
presented and the purposes for which they will be utilized. As a matter of fact, the draft of the offer of
evidence can already be prepared after the pre-trial order is issued, for, then, the counsel is already
fully aware of the documentary or object evidence which can be put to use during trial. Remember
that under the pre-trial guidelines, the trial court is ordered to integrate in the pre-trial order the
following directive:

No evidence shall be allowed to be presented and offered during the trial in support of a party’s
evidence-in-chief other than those that had been identified below and pre-marked during the pre-
trial. Any other evidence not indicated or listed below shall be considered waived by the parties.
However, the Court, in its discretion, may allow introduction of additional evidence in the following
cases: (a) those to be used on cross-examination or re-cross-examination for impeachment
purposes; (b) those presented on re-direct examination to explain or supplement the answers of a
witness during the cross-examination; (c) those to be utilized for rebuttal or sur-rebuttal purposes;
and (d) those not available during the pre-trial proceedings despite due diligence on the part of the
party offering the same.18

It is apparent from the foregoing provision that both parties should obtain, gather, collate, and list all
their respective pieces of evidence–– whether testimonial, documentary, or object––even prior to the
preliminary conference before the clerk of court or at the latest before the scheduled pre-trial
conference. Otherwise, pieces of evidence not identified or marked during the pre-trial proceedings
are deemed waived and rendered inutile. The parties should strictly adhere to the principle of "laying
one’s cards on the table." In the light of these issuances and in order to obviate interminable delay in
case processing, the parties and lawyers should closely conform to the requirement that the offer of
evidence must be done orally on the day scheduled for the presentation of the last witness.
Thus, the trial court is bound to consider only the testimonial evidence presented and exclude the
documents not offered. Documents which may have been identified and marked as exhibits during
pre-trial or trial but which were not formally offered in evidence cannot in any manner be treated as
evidence. Neither can such unrecognized proof be assigned any evidentiary weight and value. It
must be stressed that there is a significant distinction between identification of documentary
evidence and its formal offer. The former is done in the course of the pre-trial, and trial is
accompanied by the marking of the evidence as an exhibit; while the latter is done only when the
party rests its case.19 The mere fact that a particular document is identified and marked as an exhibit
does not mean that it has already been offered as part of the evidence.20 It must be emphasized that
any evidence which a party desires to submit for the consideration of the court must formally be
offered by the party; otherwise, it is excluded and rejected.21

Dismissal of the Complaint on a Demurrer to Evidence

Having established that the documentary evidence of petitioners is inadmissible, this Court is now
tasked to determine the propriety of the dismissal of the Complaint on a demurrer to evidence.

A demurrer to evidence is an instrument for the expeditious termination of an action;22 thus,

abbreviating judicial proceedings.23 It is defined as "an objection or exception by one of the parties in
an action at law, to the effect that the evidence which his adversary produced is insufficient in point
of law (whether true or not) to make out his case or sustain the issue."24 The demurrer challenges the
sufficiency of the plaintiff’s evidence to sustain a verdict.25 In passing upon the sufficiency of the
evidence raised in a demurrer, the court is merely required to ascertain whether there is competent
or sufficient proof to sustain the indictment or to support a verdict of guilt.26

In the present case, we have thoroughly reviewed the records and are convinced that petitioners
have failed to sufficiently prove their allegations. It is a basic rule in evidence that the burden of proof
lies on the party who makes the allegations.27 However, petitioners did not substantiate their
allegations and merely argued that the Complaint should be "threshed out in a full blown trial in order
to establish their respective positions on issues [which are] a matter of judicial appreciation."28

Regardless of the bare argument of petitioners, however, we find that the trial and appellate courts
were correct in dismissing the Complaint. The allegation that Severino fraudulently excluded the
other heirs of Benito and Florentina Pasag in the settlement of the latter’s estate was not supported
by concrete evidence. While petitioners maintain that the estate of Benito and Florentina was never
partitioned among their heirs, the testimony of their witness, Eufemio Pasag, proves otherwise.
Significantly, during cross-examination, Eufemio admitted that the children of Benito and Florentina,
including the father of petitioners, had received properties as inheritance from the said spouses. He
testified, thus:

Q Are you aware that there are eight (8) children of the spouses Benito and Faustina Pasag?

A Yes, sir.

Q And one of whom is Bonifacio Pasag?

A Yes, sir.

Q And one of whom is Severino Pasag?

A Yes, sir.
Q Are you likewise aware, Mr. Witness, that after the death of the spouses Benito and Faustina
Pasag, there was no last will and testament?

A Yes, sir.

Q And of course, you are aware that there are properties left by the said spouses, is that right?

A Yes, sir.

Q And in fact, your father Pedro Pasag has already a title in his name of the properties left by the
spouses to Pedro Pasag, is that right?

A Yes, sir.

Q And in fact, it is where your house was situated or erected among those properties that was given
to your father, is that right?

A Yes, sir.

Q And of course you are aware that likewise Severino Pasag, after the death of the spouses Benito
and Faustina Pasag, acquired some properties as inheritance, is that right?

A Yes, sir.

xxxx

Q And you also agree with me that Isidro Pasag, Juanito Bustillo, Fortunata Savellano, Basilio
Pasag, and Maria Lumague and the other brothers and sisters of your father likewise received
property of their own as a result of the death of your grandfather, is that right?

A Yes, sir.29

It must be stressed that fraud is not presumed; and it must be proved by clear and convincing
evidence,30 and not by mere conjectures or speculations.31 No such evidence was presented in this
case to sustain petitioners’ allegations.

WHEREFORE, we DENY the petition and AFFIRM the assailed February 15, 2002 Decision and
September 6, 2002 Resolution of the CA, with costs against petitioners.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. L-14257             July 31, 1959

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. BIENVENIDO A. TAN as Judge of the Court of First Instance of Manila. Br. XIII, PACITA
MADRIGAL-GONZALES, ANGELITA CENTENO, JULIA CARPIO, CALIXTO HERMOSA, and
CRISPULA R. PAGARAN alias PULA, respondents.

Assistant Fiscal Apolinar Tolentino, Prosecutors Norberto J. Quisumbing and Antonio Villegas for
petitioner.
Gonzalo W. Gonzales and Bausa, Ampil and Suarez for respondent Pacita M. Gonzales.
Estanislao A. Fernandez for the other respondents.

LABRADOR, J.:

In Criminal Case No. 36885 of the Court of First Instance of Manila, respondents Pacita Madrigal-
Gonzales and others charged with the crime of falsification of the public documents, in their
capacities as public officials and employees, by having made it appear that certain relief supplies
and/or merchandise were purchased by Pacita Madrigal-Gonzales for distribution to calamity
indigents or sufferers, in such quantities and at such prices and from such business establishments
or persons as are made to appear in the said public documents, when in fact and in truth, no such
distributions of such relief and supplies as valued and supposedly purchased by said Pacita
Madrigal Gonzales in the public and official documents had ever been made.

In order to prove the charge of falsification, the prosecution presented to a witness a booklet of
receipts, which was marked Exh. "D", containing value invoices numbered 101301 to 101400 of the
Metro Drug Corporation, Magallanes corner Jakosalem, Cebu City. The booklet contained the
triplicate copies, and according to said witness the original invoices were sent to Manila office of the
company, the duplicates to the customers, so that the triplicate copies remained in the booklet.
Witness further explained that in preparing receipts for sales, two carbons were used between the
three sheets, the original, the duplicate and triplicate so that the duplicates and the triplicates were
filed out by the use of the carbons in the course of the preparation and signing of the originals. The
witness giving the testimony was the salesman who issued a triplicates marked as Exh. "D-1".

As the witness was explaining the figures or words appearing on the triplicates, Hon. Bienvenido M.
Tan, then presiding in the court below, interrupted the proceeding holding that the triplicates are not
admissible unless it is first proven that the originals were lost and can not be produced. Said the
court:

Triplicates are evidence when it is proven first that the original is lost cannot be produced.
But as the witness has alleged that the original is in the Manila Office, why not produce the
original?

Another witness, accountant of the Metro Drug Corporation in Manila, was also called by the
prosecution to testify. He declared that sales in the provinces were reported to the Manila office of
the Metro Drug Corporation, and that the originals of the sales invoices are transmitted to the main
office in support of cash journal sheets, but that the original practice of keeping the original white
copies no longer prevails as the originals are given to the customers, while only the duplicate or pink
copies are submitted to the central office in Manila. Testifying on certain cash journal sheets, Exhs.
"A", "A-1" to "A-10" he further declared that he received these from the Metro Drug Corporation,
Cebu branch, and that the said cash journal sheets contained the sales made in the Cebu branch.
After the cross-examination of this last witness, the prosecution again went back to the identification
of the triplicate invoice, Exh. "D-1", already above referred to. It was at this stage that the judge
below told the prosecution that the law applicable is Section 46, Rule 123 of the Rules of Court,
which requires the production of the originals. In response to the above ruling, the special prosecutor
claimed that the evidence of the prosecution would not be able to secure the production of the
originals on account of their loss.

In view of the above circumstances, the prosecution announced its intention to file a petition for
certiorari against the ruling of the court below to which the court below to which the court below
agreed. Hence this petition.

It is alleged that the invoice sought to be introduced, which were produced by the use of carbon
sheets, and which thereby produced a facsimile of the originals, including the figures and the
signatures on the originals, are regarded as duplicate originals and may introduced as such, even
without accounting for the non-production of the originals.

The decision of the question is far from difficult. The admissibly of duplicates or triplicates has long
been a settled question and we need not elaborate on the reasons for the rule. This matter has
received consideration from the foremost commentator on the Rules of Court thus:

"When carbon sheets are inserted between two or more sheets of writing paper so that the
writing of a contract upon the outside sheet, including the signature of the party to be
charged thereby, produces 2 facsimile upon the sheets beneath, such signature being thus
reproduced by the same stroke of the pen which made the surface or exposed impression,
all of the sheets so written on are regarded as duplicate originals and either of them may be
introduced in evidence as such without accounting for the nonproduction of the others."
(Moran, 1952 ed., p. 444.)

It has also been in favor of the petitioner by US in the case of People vs. Quinones, 44 Off. Gaz.,
No. 5, 1520, 1525, thus:

It is argued in the second assignment of error that the confession Exhibit B is not admissible
because it is merely a carbon copy. The said confession Exhibit B, being a carbon copy of
the original and bearing as it does the signature of the appellant, is admissible in evidence
and possess all the probative value of the original, and the same does not require an
accounting for the non-production of the original. (Sec 47, Rule 123, Rules of Court).

Two principal authors on the law on evidence have sustained the theory of the admissibility of
duplicate originals, as follows:

SEC. 386. . . . the best evidence rule is that rule which requires the highest grade of
evidence obtainable to prove a disputed fact. p. 616. A "duplicate sales slip" (People vs.
Stone, 349 III. 52, 181 N. E. 648) has been held to be primary evidence, p. 616.

SEC. 420. Duplicate originals. — Where letters are produced by mechanical means and,
concurrently with the original, duplicate are produced, as by placing carbon paper and writing
on the exposed surface at the same time, all are duplicate originals, and any one of them
may introduced in evidence without accounting for the nonproduction of the other. Citing
International Harvester Co. vs. Elfstrom, 101 Minn. 263, 112 N. W. 252. See also 12 L.R.A.
(N.S.) 343, People of Hauke, 335 II, 217, 167 N. E. 1; State vs. Keife, 165 La. 47, 115 So.
363; Taylor vs. Com. 117 Va. 909, 85 S.E. 499. (Wharton's Criminal Evidence, Vol. I, p.
661).
 SEC. 100. Carbon copies, however, when made at the same time and on the same machine
as the original, are duplicate originals, and these have been held to be as much primary
evidence as the originals. Citings U.S. vs. Manton, 107 Fed. (2d) 834, denied 309 U. S. 664,
84 L. ed. 1012; O'Shea vs. U.S. 93 F. (2d) 169; Leonard vs. State, 36 Ala. App. 397, 58 So.
(2d) 138; State vs. Lee, 173 La. 770, 138 So. 662; Newman vs. State 65 Ga. App. 288, 16 S.
E. (2d) 87. (Underhill's Criminal Evidence, 5th ed., Vol. I, p. 168.)

We find that the ruling of the court below to the effect that the triplicates formed by the used of
carbon papers are not admissible in evidence, without accounting first for the loss of the originals is
incorrect and must be reversed. The court below is hereby ordered to proceed in the trial of the case
in accordance with this ruling. No cost. So ordered.

Bengzon, Padilla, Montemayor, Bautista Angelo, Concepcion, Endencia and Barrera, JJ., concur.

THIRD DIVISION

G.R. No. 205590, September 02, 2015

PHILIPPINE NATIONAL BANK, Petitioner, v. GAYAM. PAS IMIO, Respondent.

DECISION

VELASCO JR., J.:

In this petition for review under Rule 45, the Philippine National Bank (PNB) assails and seeks to set aside
the January 23, 2013 Decision1 of the Court of Appeals (CA) in CA-G.R. CV No. 94079 dismissing petitioner's
appeal from the decision of the Regional Trial Court (RTC) of Parañaque City, Branch 196, which ruled for
respondent Ligaya Pasimio (Pasimio) in an action for a sum of money she commenced thereat against the
bank.

The Facts

From the petition, the comment thereon, their respective annexes, and other pleadings filed by the parties,
the Court gathers the following relevant facts:
chanRoblesvirtualLawlibrary

On May 19, 2005, Pasimio filed suit against PNB for the recovery of a sum of money and damages before
the RTC of Parañaque City. In her complaint,2 docketed as Civil Case No. CV-05-0195 and eventually raffled
to Branch 196 of the court, she alleged having a peso and dollar time deposit accounts with PNB in the total
amount of P4,322,057.57 and US$5,170.80, respectively; that both investment placements have matured;
and when she sought to withdraw her deposit money with accrued interests, PNB refused to oblige.

In its Answer with Counterclaim,3 with annexes, PNB admitted the fact of deposit placement for the amount
aforestated. But it claimed that Pasimio is without right to insist on their withdrawal, the deposited amount
having already been used in payment of her outstanding loan obligations to the bank. PNB narrated how the
set off of sort came about: Pasimio and her husband took out three "loans against deposit hold-out"4 from
the PNB Sucat branch, as follows: a Three Million One Hundred Thousand Peso (P3,100,000) loan on March
21, 2001; a One Million Seven Hundred Thousand Peso (P1,700,000) loan on April 2, 2001; and a Thirty-
One Thousand One Hundred US Dollar (US$31,1 00) loan on December 7, 2001.

PNB further alleged the following: (1) each loan accommodation was secured by a deposit account of
Pasimio; (2) the proceeds of the first and second loans were released to and received by the Pasimio
spouses in the form of PNB Manager's Checks (MCs) while the proceeds of the third loan were released and
received in cash; (3) the loan proceeds were acknowledged by Pasimio in corresponding notarized
promissory notes (PNs) and Disclosure Statements of Loan/Credit Transaction; (4) Pasimio then re-lent the
proceeds of the third loan to a certain Paolo Sun; (5) contrary to Pasimio's allegations on maturing deposit
instruments, she in fact renewed/rolled over her placements several times; and (6) Pasimio had failed to
pay her outstanding loan obligations forcing the bank to apply her deposits to the unpaid loans pursuant to
the legal compensation arrangement embodied in the "hold-out" proviso under Clause 5 of the PN.5

To this answer, Pasimio filed her reply and answer to counterclaim alleging facts she would also later
venture to prove.

During the trial following the joinder of issues, Pasimio denied obtaining any loan from PNB, let alone
receiving the corresponding loan proceeds. While conceding signing certain documents which turned out to
be the Peso Loans Against Peso/FX Deposit Loan Applications, the Promissory Notes and Hold-out on
Savings Deposit/Peso/FX Time Deposit and Assignment of Deposit Substitute and the Disclosure Statements
of Loan/Credit Transaction (Loan Documents), she professed not understanding what they really meant. She
agreed to affix her signature on these loan documents in blank or in an incomplete state, she added, only
because the PNB Sucat branch manager, Teresita Gregorio (Gregorio), and Customer Relations Officer,
Gloria Miranda (Miranda), led her to believe that what she was signing were related to new high-yielding
PNB products.

Pasimio would also deny re-lending the loan proceeds to Paolo Sun. She asserted in this regard that
Gregorio repaired to her residence with a duly accomplished affidavit detailing the re-lending event and
urged her to sign the same if she wished to recover her placements.

In all, Pasimio depicted herself as victim of a nefarious lending scam, orchestrated by Gregorio and Miranda
who PNB had ordered dismissed following the exposure of their involvement in anomalous loan transactions
with unsuspecting PNB depositors.

Pasimio submitted the following as evidence: chanRoblesvirtualLawlibrary

1. Passbook for PNB Mint Placement No. 61281001164164 (same as PNB Mint Placement No.
6128100115590) - to prove that she invested P3,100,000 with PNB-Sucat under PNB Mint
Placement No. 6128100115590; ChanRoblesVirtualawlibrary

2. Passbook for PNB Mint Placement No. 61281001164688 (same as PNB Mint Placement No.
6128100115632) - to prove that she invested P1,700,000 with PNB-Sucat under PNB Mint
Placement No. 6128100115632; ChanRoblesVirtualawlibrary

3. Certificate of Time Deposit for $CTD No. 6628100116575 - to prove that she invested US$5,160.84
with PNB-Sucat under Certificate of Time Deposit $CTD No. 66281001 16575; ChanRoblesVirtualawlibrary

4. Letter dated April 22, 2004 addressed to the PNB Sucat branch manager to prove that she made a
demand for the release of her investments; ChanRoblesVirtualawlibrary

5. Letters dated July 21, 2004 from PNB's Internal Auditor to Pasimio -to prove that PNB confirmed her
deposits and investment with PNB-Sucat but that she corrected entries pertaining to their amounts
and denied having a deposit hold-out on any of her investments; ChanRoblesVirtualawlibrary

6. Engagement letter dated February 2, 2005 from the law firm Rondain & Mendiola; ChanRoblesVirtualawlibrary

7. An unsigned affidavit - to prove that Gregorio had prepared an affidavit to make it appear that
Pasimio and other depositors entered into loan agreements with a certain Paolo Sun, to cover her
(Gregorio's) illegal schemes and that Gregorio went to the homes of these depositors begging them
to sign the affidavit as she was already being audited by PNB's main office;6 and
 8. A Memorandum on Irregular Lending Operation on Loans vs. Deposit Hold-Out (Sucat Branch) dated
February 18, 2003 detailing the alleged modus operandi of Gregorio and Miranda and stating that
the latter were dismissed for their involvement in shady loan practices.7

On the other hand, PNB offered the following for purposes as stated: chanRoblesvirtualLawlibrary

1. Peso Loans Against Peso/FX Deposit Loan Application Form dated March 21, 2001 - to prove that
Pasimio applied for a PNB loan and voluntarily executed a loan application form dated March 21,
2001 for the amount: of P3,100,000 secured by her own PNB Mint Account No. 612810011393 as
loan collateral;
ChanRoblesVirtualawlibrary

2. PN and Hold-out on Peso/FX Savings Deposit/Peso/FX Time Deposit and Assignment of Deposit
Substitute dated March 21, 2001 - to prove that Pasimio's P 3,100,000 loan was supported with a
PN which she and her husband voluntarily signed and executed on March 21, 2001 and that she
renewed the said loan on different dates; ChanRoblesVirtualawlibrary

3. Disclosure Statement of Loan/Credit Transaction dated March 21, 2001 - to prove that Pasimio's
loan for P3,100,000 was also supported with a Disclosure Statement, a copy of which she
acknowledged to have received prior to the consummation of the credit transaction, where she
voluntarily agreed to the terms and conditions of her loan by signing the said statement; ChanRoblesVirtualawlibrary

4. MC No. 0000166650 dated March 21, 2001 for P3,049,188.94 - to prove that Pasimio encashed this
check and received the proceeds of her P3,100,000 loan, net of bank charges; ChanRoblesVirtualawlibrary

5. Peso Loans Against Peso/FX Deposit Loan Application/Approval Form dated April 2, 2001 - to prove
that Pasimio applied for another loan on April 2, 2001 in the amount of PI,700,000 and that the
same was secured by Pasimio's own PNB Mint Account No. 6128100113429. As in the first loan,
Pasimio also voluntarily affixed her signature on the document; ChanRoblesVirtualawlibrary

6. PN and Hold-out on Peso/FX Savings Deposit/Peso/FX Time Deposit and Assignment of Deposit
Substitute dated April 2, 2001 - to prove that Pasimio's second loan of LP1,700,000 is supported by
a PN which she voluntarily signed and executed on April 2, 2001 together with her husband and that
she renewed the said loan on different dates; ChanRoblesVirtualawlibrary

7. Disclosure Statement of Loan/Credit Transaction dated April 2, 2001 - to prove that Pasimio's loan
for P1,700,000 was also supported with a Disclosure Statement, a copy of which she acknowledged
to have received prior to the consummation of the credit transaction, where she voluntarily agreed
to the terms and conditions of her loan by signing the said statement; ChanRoblesVirtualawlibrary

8. MC No. 0000166682 dated April 2, 2001 in the amount of P1,672,797.50 - to prove that Pasimio
encashed this check and received the proceeds of her P1,700,000 loan, net of bank charges; ChanRoblesVirtualawlibrary

9. Peso Loans Against Peso/FX Deposit Loan Application/Approval Form dated December 7, 200 - to
prove that Pasimio applied for a US$31,100 loan which her own PNB FX CTD No. 6628100115637
(US$20,393.78) and CTD No. 6628100115716 (US$10,766.25) secured as collateral. As in the first
two loans, Pasimio also voluntarily affixed her signature on the document; ChanRoblesVirtualawlibrary

10. PN and Hold-Out on Peso/FX Savings Deposit/Peso/FX Time Deposit and Assignment of Deposit
Substitute dated December 7, 2001 - to prove that Pasimio's US$3 1,100 loan is supported by a PN
note which she and her husband voluntarily signed and executed on December 7, 2001 and that she
renewed the said loan on different dates; ChanRoblesVirtualawlibrary

11. Disclosure Statement of Loan/Credit Transaction dated December 7, 2001 - to prove that Pasimio's
loan for US $31,100 was also supported with a Disclosure Statement, a copy of which she
acknowledged to have received prior to the consummation of the credit transaction, where she
voluntarily agreed to the terms and conditions of her loan by signing the said statement; ChanRoblesVirtualawlibrary

12. Miscellaneous Ticket dated December 7, 2001 in the amount of US$30,981.28 - to prove that
Pasimio received the proceeds of her US$31,100 loan, net of bank charges; ChanRoblesVirtualawlibrary
13. Bills Payment Form dated July 26, 2004 - to prove that her failure to settle her peso/dollar loan
obligations was subsequently settled by offsetting the available balance of her deposit accounts that
were used as collaterals against these loans, in accordance with the PNs she executed; ChanRoblesVirtualawlibrary

14. Demand letter addressed to Pasimio dated July 5, 2004 signed by Noel R. Millares on behalf of the
bank -- to prove that PNB demanded payment of her loans in the aggregate amount of
P4,623,458.03 and US$5,277.34 which had already become due and payable; ChanRoblesVirtualawlibrary

15. Pasimio's Affidavit dated April 10, 2003 - to prove Pasimio's execution of an affidavit lending US$3
1,100 to Paolo Sun; ChanRoblesVirtualawlibrary

16. Pasimio's letter dated February 25, 2003 - to prove that the Pasimios effected a change in their PNB
Mint Account Nos. deposited at PNB Sucat from the old account number 6128100113393 to the new
account number 6128100116464 (pertaining to the deposit of F3,100,000); and from the old
account number 6128100113429 to the new account number 61281001.16488 (pertaining to the
deposit of P1,700,000); ChanRoblesVirtualawlibrary

17. PNB Mint Savings Account Passbook with Serial No. 046783 - to prove that the deposit covered by
this passbook in the amount of P3,100,000 was used as collateral for Pasimio's f3,100,000 loan. As
proof of this fact, the passbook is stamped with the notation "HOLDOUT" to indicate a withdrawal
restriction on this account; ChanRoblesVirtualawlibrary

18. PNB Mint Savings Account Passbook with Serial Number 046781 - to prove that the deposit covered
by this, passbook in the amount of P1,700,000 was used as collateral for Pasimio's P1,700,000 loan.
As proof of this fact, the passbook is stamped with the notation "HOLDOUT" to indicate a withdrawal
restriction on this account; ChanRoblesVirtualawlibrary

19. Portion of PNB Mint Passbook stamped "Hold Out" - to prove that the savings account covered by
this passbook is under a hold-out restriction; ChanRoblesVirtualawlibrary

20. Pasimio's Certificate of Time Deposit Ledger for PNBig Savings Account No. 222-5476838-7 - to
prove that Pasimio opened an account with PNB-Sucat on March 21, 2001 under Account No. 222-
5476838-7 which was constituted as collateral of the P3,100,000 loan; ChanRoblesVirtualawlibrary

21. PNBig Savings Account from October 29, 2003 up to May 3, 2004 - to prove that Pasimio opened an
account with PNB-Sucat under Account No. 281-5254913 which constituted as collateral for the
P1,700,000 loan; ChanRoblesVirtualawlibrary

22. The Certificate of Deposit Ledger from June 4, 2001 to July 25, 2004 - to prove that the amounts
covered by this deposit document were used as collateral for Pasimio's dollar loan of US$31,100; ChanRoblesVirtualawlibrary

23. CTD dated June 4, 2001 in the amount of US$34,030.18 - to prove that Pasimio was issued a
Certificate of Time Deposit for the amount of US$34,030.18 with an annual interest rate of
4.5%; ChanRoblesVirtualawlibrary

24. CTD dated July 27, 2001 in the amount of US$20,187.10 - to prove that Pasimio was issued a
Certificate of Time Deposit for the amount of US$20,187.10 with an annual interest rate of
4.125%; ChanRoblesVirtualawlibrary

25. CTD dated December 23, 2003 in the amount of US$5,136.03 - to prove that Pasimio had an
existing dollar time deposit with PNB which she used as collateral for the dollar hold-out loan that
she took out. The dollar certificate is stamped with a notation that reads "HOLD-OUT"; ChanRoblesVirtualawlibrary

26. Statement of Account (SOA) - to prove that PNB-Sucat issued a SOA for Pasimio's Dollar Hold-Out
Loan, which showed an outstanding balance of US$5,100. This SOA was used as basis for the
offsetting of Pasimio's past due loan obligation with her PNB Mint Account as collateral; and

27. Statement of Account (SOA) - to prove that PNB-Sucat issued a SOA for Pasimio's Dollar Hold-Out
Loan, which showed an outstanding balance of P4,321,781.06. This SOA was used as basis for the
offsetting of Pasimio's past due loan obligation with her PNB Mint Account as collateral.8
 RTC Decision

On October 30, 2009, the RTC' rendered judgment9 in favor of Pasimio, as plaintiff, disposing: cralawlawlibrary

WHEREFORE, premises considered, this court finds the Complaint dated May 16, 2005 with merit, and
Defendant, Philippine National Bank is ordered to pay plaintiff, LIGAYA M. P[A]SIMIO[,] the amount of x x x
(P3,100,000.00), x x x (P1,222,000.00) and x x x (US$5,170), respectively, representing her peso/dollar
time deposit placements with said bank, with legal interest on said amounts, and, the amount of x x x
(P180,000.00) representing attorney's fees, and costs.

SO ORDERED.10
chanrobleslaw

The disposition is predicated on the postulate that Pasimio had proven by convincing evidence that she did
not obtain any loan accommodation from PNB. As a corollary, the trial court held that there was no evidence
snowing the release by PNB of the loan proceeds to Pasimio. Pushing the point, the RTC stated that the
transaction documents were highly questionable for the reasons stated in some detail in its decision to be
reproduced by the CA in its assailed decision.

Therefrom, PNB appealed to the CA, the recourse docketed as CA-GR. CV No. 94079.

CA Decision

In its assailed Decision dated January 23, 2013, the CA affirmed that the RTC, to wit: chanRoblesvirtualLawlibrary

WHEREFORE, the instant appeal is DENIED. The Decision dated 30 October 2009 rendered by the [RTC],
Branch 196, Parañaque City in Civil Case No. 05-0195 is hereby AFFIRMED.11

Even as it found and declared PNB's bank personnel grossly negligent and their transactions with Pasimio
highly unacceptable,12 the appellate court held that no loan proceeds were ever released to Pasimio, thus
sustaining the RTC appreciation of the evidence thus presented on the matter by Pasimio.13 The CA wrote: cralawlawlibrary

Hence, We are one with the RTC when it ruled that there was no release of proceeds of bank loans to
plaintiff-appellee [Pasimio], viz:
No release of proceeds of purported bank loans to plaintiff. The evidence at hand does not show that any
amount of the loans, if there were any, were ever released by [PNB] to plaintiff.

The [PNB] presented a miscellaneous ticket dated December 7, 2001 for the discounted amount of x x x
(US$ 30,981.28) attending the release of such funds over the purported third loan in the amount of x x x
(US$ 31.100.00) extended to plaintiff and as affecting her FX dollar time deposits. This document remains to
be a simple ticket advice and | would] not amount to fact of payment of loan proceeds in the absence of any
cogent and better evidence which is available to (he bank. There is no statement of account or a
corresponding check document presented to compliment such ticket advice to clearly show an amount was
debited from the account of the bank to ably pay off the amount of the loan proceeds. The miscellaneous
ticket standing by itself is no[t] an adequate proof of fact of payment of a loan x x x.

The [PNB] presented a document for Manager Check No. 166650 dated March 21, 2001 at a discounted
amount of x x x (P3,049,188.94) to prove the possible release of proceeds of a first loan allegedly secured
by plaintiff for the amount of x x x (P3,100,000.00). Looking over the dorsal portion of the check, it is highly
unnatural and irregular that the very check in question does not have a machine printed validation of the
transaction to reflect the debit entry of the account from which the release "of funds might have been
secured. With exception to the stamp marking and a few signatures at the back of the check, it becomes
highly inconceivable for a bank teller to forget a machine validation of a check, not unless the checks was
not properly cleared but was only received by the teller. The check standing out as evidence docs not proffer
(that the amount indicated therein was properly released for the purpose, to only draw a farce conclusion
that it was properly transacted and funds was indeed released to plaintiff.

The [PNB] presented a document for Manager Check No. 166682 dated April 2, 2001 in the discounted
amount of x x x (P1,679,797.50) to prove the alleged release of proceeds of a second loan allegedly secured
by plaintiff for the amount x x x (P1,700,000.00). Looking over the dorsal portion of the check, the machine
validation entry by the teller reads of entry '005 502 281 02AP01 PCOUT 1,672,797.50 A N 14021226' in
comparison with the front portion of the very check does not tally with the check no. '166682' neither the
checking account from which the amount is drawn at reference number '00-281-022222-2' which makes it
an invalid validation entry and will not prove the fact that debited amounts were made from the bank
account number '00-281-022222-2' [to cover the release to plaintiff of proceeds] of the second loan. There
being no explanation by the very bank employees presented by the bank on the discrepancy of the teller
validation entries with the checking account used to possible pay off the release of loan proceeds, there can
be no indication that the loan was properly paid for to plaintiff.

Simply stated, there is really no loan ever released by defendant bank in favor of plaintiff to engage the
operative right to hold-out on the deposits of the latter.14
chanrobleslaw

On a related matter, the CA found, as highly irregular, the PNB personnel's act of securing Pasimio's
signature and consent to have the proceeds of the US$3 1,100 loan re-lent to Paolo Sun. ft expounded: cralawlawlibrary

Second, it can be gleaned from the facts of the case that [PNB] was able to obtain the signature and assent
of plaintiff-appellee in re-lending the loan proceeds to a certain Paolo Sun, in a manner not in accordance
with the ordinary course of business of banks. According to plaintiff-appellee, Bank Manager Gregorio went
to her house for her to sign a document, telling her that it was the only way for plaintiff-appellee to get her
money back by re-lending her money deposits with [PNB] to a certain Paolo Sun whom she does not know.
Plaintiff-appellee also contends that she was not aware that the document she signed was notarized.

For that alone, the action performed by the bank manager in the transactions is definitely exposed to a high
incident of negligence. It bears stressing that banks must exercise the highest degree of diligence and by
doing the transactions outside the bank without any proper explanation of the consequences of the
document to be signed by plaintiff-appellee as client of the bank is reprehensible x x x. The bank personnel
misrepresented the true nature of the transaction which deprived plaintiff-appellee to evaluate the
consequences of the transaction offered to her by the bank personnel of [PNB].15 chanrobleslaw

And agreeing with the RTC on what it viewed as the questionable nature of the transactions PNB entered
into with Pasimio, as purportedly evidenced by a combination of related circumstances reflecting
documentary tampering, the CA quoted with approval the ensuing excerpts from the RTC's decision: cralawlawlibrary

The transaction documents are highly questionable. The loan application form dated March 21, 2001 over
the purported first peso loan in the amount of x x x (P3,100,000.00) which was verified with a notary public
on April 30, 2001 did not utilize any residence certificate of plaintiff x x x which also missed out for a
residence certificate number in the promissory note dated March 21, 2001, the same former document
carried bolder typewritten entries for the names of depositors but faint entries for the
amount and the security deposit account which only shows that such entries were made on different dates
using different typesets compounded by the column side for the verified balance of deposit and the
recommendation of interest were left unfilled. Which circumstances bring in a question on the validity
and veracity of the loan documents when in fact the entries and the missing items thereto [do] not
speak well of a fully accomplished and perfected loan document between the parties. Sad to say, this court
cannot even believe [PNB's] witness, Edna Palomares in stating that she checked the entries [in] the loan
approval form be lore she placed her signature considering there are valuable and important entries that are
left unfulfilled by a bank officer as herself to even downgrade her line of credibility on the true
circumstances to the execution of such document.

The same circumstances attend the loan documents that allegedly covered the second loan in the amount of
x x x (P1,700,000.00) and the third loan in the amount of x x x (US$31,100.00), and, this court need not
discuss further to emphasize the line of anomalous circumstances attending the execution and existence of
such documents.16 (emphasis added) chanrobleslaw

The CA explained that even if both parties may have been negligent in the conduct of their respective
affairs, PNB cannot evade liability for its shortcomings. As stressed by the appellate court, the banking
industry is impressed with public interest. Accordingly, all banks and their personnel are burdened with a
high level of responsibility and expected to be more careful than ordinary persons. The CA held that since
PNB was grossly negligent, it should bear the consequences: cralawlawlibrary

Third, although it may be argued that both parties seemed to have been negligent in their own affairs,
[PNB] cannot put all the blame to cover its negligence on plaintiff-appellee. The degree of care is more
paramount and expected with that of banks than that of an ordinary person.

As the banking industry is impressed with public interest, all bank personnel are burdened with a high level
of responsibility insofar as care and diligence in the custody and management of funds are concerned. Banks
handle transactions involving millions of pesos and properties x x x. Indeed, by the very nature of their
work, the degree of responsibility, care and trustworthiness expected of officials and employees of the bank
is tar greater than those of ordinary officers and employees in the other business firms.

Unquestionably, [PNB] x x x had the direct obligation to supervise very closely the employees handling its
depositors' accounts, and should always be mindful of the fiduciary nature of its relationship with the
depositors. Such relationship required it and its employees to record accurately every single transaction, and
as promptly as possible, considering that the depositors' accounts should always reflect the amounts of
money the depositors could dispose of as they saw fit x x x. If it fell short of that obligation, it should bear
the responsibility for the consequences to the depositor x x x.

In this case. [PNB's] personnel were in violation of their duties and responsibilities as its employees. They
have committed gross negligence in dealing with their bank transactions which connotes "want of care in the
performance of one's duties." [PNB's] failure to observe basic procedure constituted serial negligence. The
repealed failure to carefully observe the duties of its personnel clearly showed utter want of care. As
gathered from the records of the case, it was shown that this is not an isolated transaction as other clients
of the bank have been likewise victimized. Witness Virginia Pollard has stated in her testimony before the
RTC that at one point, she too, was a victim of irregular bank transactions of the same branch of [PNB] as
offered by its bank personnel. Thus, it was [PNB's] action that defies the ordinary banking transactions and
between an ordinary person like plaintiff-appellee and a bank like [PNB], [PNB] carries more burden, which
unfortunately, it failed to overcome.

Verily, from the foregoing instances, (PNB] was indeed grossly negligent in its transactions with plaintiff-
appellee. Even assuming that plaintiff-appellee was concocting her version of the facts, We still find
irregularities and inconsistencies that have attributed to the unjustified refusal to return the investment
placement and to the commission of negligence.17

Finally, the CA would state the observation, citing City trust Banking Corporation v. Cruz18 and Typoco v.
Commission on Elections,19 that the errors PNB sought reviewed relate to the RTC's factual findings when the
appellate court is not a trier of facts, necessarily implying that it is improper for the CA under the premises
to do what PNB seeks. The CA explained that 'the stated doctrine regarding the factual findings of the RTC
applies within force in the instant case."20
chanrobleslaw

Issue

Whether or not the CA erred in affirming the RTC Decision granting Pasimio's complaint for a sum of money.

The Court's Ruling

The findings of Fact of the CA are subject to well-defined exceptions,21 among which are when such findings
are not supported by substantial evidence, grounded on surmises or conjectures or are patently arbitrary,
binding and conclusive and this Court will not review them on appeal. This case squarely falls under the
exceptions of the general rule.

The petition is impressed with merit.

The CA has the power to

resolve factual issues

Before proceeding to the main issue of this case, there is a need to clarify the assailed decision's perplexing
but flawed pronouncement that the CA, not being a trier of facts, is without competence to review the
factual determination of the RTC. Section 9 of Bates Pambansa Blg. (BP) 129, otherwise known as
the Judiciary Reorganization Act of 1980, categorically states that the CA has, inter alia, the power to try
cases, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases
falling within its original and appellate jurisdiction, thus: cralawlawlibrary
Sec. 9. Jurisdiction. - The Court of Appeals shall exercise: chanRoblesvirtualLawlibrary

xxxx

The Court of Appeals shall have the power to try cases and conduct hearings, receive evidence and perform
any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate
jurisdiction, including the power to grant and conduct new trials or further proceedings. Trials or hearings in
the Court of Appeals must be continuous and must be completed within three (3) months unless extended
by the Chief Justice.chanrobleslaw

To be sure, the cases22 the CA cited to support its adverted pronouncement are inapposite. In context, the
issue involved in Citytrust and Typoco relates to the nature and extent of this Court's, and not the CA's,
power to review factual findings of lower courts and administrative agencies in petitions for review and in
original certiorari and prohibition cases. Clearly, Citytrust and Typoco have been misread and consequently
misapplied.

It is also worthy to note that the appellate court's reliance on the factual findings of the trial court is hinged
on the latter's firsthand opportunity to hear the witnesses and to observe their demeanor during the trial.
However, when such findings are not anchored on their credibility and their testimonies, but on the
assessment of documents that are available to appellate magistrates and subject to their scrutiny, reliance
on the trial courts factual findings finds no application.23

The CA's regrettable cavalier treatment of PNB's appeal is inconsistent with Rule 41 of the Rules of Court
and with the usual course of judicial proceedings. Be reminded that the parties in Rule 41 appeal
proceedings may raise questions of fact or mixed questions of fact and law.24 Thus, in insisting that it is not
a trier of facts and implying that it had no choice but to adopt the RTC's factual findings, the CA shirked
from its function as an appellate court to independently evaluate the merits of this case. To accept the CA's
aberrant stance is to trivialize its review function, but, perhaps worse, render useless one of the reasons for
its institution.

Pasimio failed to prove her claim

by preponderance of evidence

It is settled that the burden of proof lies with the party who asserts a right and the quantum of evidence
required by law in civil cases is preponderance of evidence. "Preponderance of evidence" is the weight,
credit, and value of the aggregate evidence on either side and is usually considered to be synonymous with
the term "greater weight of evidence" or "greater weight of credible evidence."25 Section 1, Rule 133 of the
Rules of Court provides: cralawlawlibrary

Section 1. Preponderance of evidence, how determined. - In civil cases, the party having the burden of proof
must establish his case by a preponderance of evidence. In determining where the preponderance of
evidence or superior weight of evidence on the issues involved lies, the court may consider all the facts and
circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify,
the probability or improbability of their testimony, their interest or want of interest, and also their personal
credibility so far as the same may legitimately appear upon the trial. The court may also consider the
number of witnesses, though the preponderance is not necessarily with the greater number. chanrobleslaw

Just as settled is the rule that the plaintiff in civil cases must rely on strength of his or her own evidence and
not upon the weakness of that of the defendant. In the case at bench, this means that on Pasimio rests the
burden of proof and the onus to produce the required quantum of evidence to support her cause/s of
action.26

With the view we take of the case, Pasimio has failed to discharge this burden.

There can be no quibbling that Pasimio had, during the time material, opened and maintained deposit
accounts with PNB. For this purpose, she submitted two passbooks and one certificate of time deposit to
establish her peso and dollar placements with the bank. However, PNB also succeeded in substantiating its
defense for refusing to release Pasimio's funds by presenting documents showing that her accounts were,
pursuant to hold-out arrangement, made collaterals for the loans she obtained from the bank and were
eventually used to pay her outstanding loan obligations. Unfortunately, Pasimio failed to trump PNB's
defense after the burden of evidence shifted back to her.

To recall, PNB, to bolster its case, presented these documents: loan application forms, PNs and disclosure
statements to prove that Pasimio obtained the disputed bank loans; manager's checks and a miscellaneous
ticket to establish the release of the loan proceeds to Pasimio; passbooks and a certificate of time deposit
with the stamp "HOLD-OUT" to indicate restrictions on the withthrawal of Pasimio's deposit; a bills payment
form to prove that Pasimio's deposits were made to pay for her outstanding obligations in accordance with
the provisions of Pasimio's promissory notes; and a signed and notarized affidavit recounting that she lent
the proceeds of her dollar loan to Paolo Sun.

On the witness stand, PNB's witness Edna Palomares, the bank's Per Pro Officer, categorically testified
having prepared and processed all. of Pasimio's loan documents, and witnessed Pasimio and her husband
signing the same.27 Palomares also testified about Pasimio's receipt of the proceeds of the subject loans and
identified the signatures appearing on the dorsal portion of the PNB manager's checks and miscellaneous
ticket covering the loan processed as genuine signatures of Pasimio.28

Pasimio, on the other hand, denied applying for any loan with PNB and receiving any loan proceeds or
authorizing the bank to use her deposit as collateral. While admitting to signing certain papers, she
professed unawareness that what she signed were in fact loan documents as nobody came forward to
explain what they were, adding that she was convinced to sign them only because she was made to believe
by bank officers that the documents were related to a new PNB high-yielding investment product.

Unfortunately, the courts a quo chose to disregard all of PNB's documentary evidence and ruled in favor of
Pasimio. This to us is a blatant mistake on the part of the RTC and the CA because all that Pasimio put
forward against PNB's evidence, for the most part documentary, were unsubstantiated denials and bare,
self-serving assertions. To borrow from Pecson v. Commission on Elections,29 citing Almeida v. Court of
Appeals,30 the use of wrong or irrelevant considerations, reliance on clearly erroneous factual findings or
giving too much weight to one factor in deciding an issue is sufficient to taint a decision-maker's action with
grave abuse of discretion.

As between Pasimio's barefaced denials and Palomares' positive assertions, the trial court ought to have
accorded greater weight to Palomares' testimony, especially considering that Pasimio never put in issue the
due execution and authenticity of the loan documents. As between a positive and categorical testimony
which has a truth, on one hand, and a bare denial, on the other, the former is generally held to prevail.31

ft cannot be stressed enough that Pasimio unequivocally admitted that the signatures appearing in the Loan
Application/Approval Forms dated March 21, 2001, April 2, 2001 and December 7, 2001,32 in all three
Promissory Notes,33 and the Disclosure Statement dated December 7, 2001 were hers and her husband's.
She also was aware of the consequences of her act of signing. Her testimonies on the matter are quoted
hereunder: cralawlawlibrary

Atty. Banzuela:
Q: Thank you. Madam Witness, you testified that you signed these
documents which are blank in its details, what do yon mean by blank
in details.
A: Nothing. Blank as in it's a pro-forma form but blank.
Q: Madam Witness, but you read what these documents were?
A: No, I did not read.
Q: You entrusted to PNB that huge amount of US$31,100, P1,700,000
and US$3,100 without going through the documents that you were
signing with PNB?
A: That's right.
Q: Why is this so. Madam Witness?
A: Because I trusted the bank, I trusted the employees of the bank
having been a depositor for the past two (2) decades.
Q: But you know. Madam Witness, the consequences of your acts in
 signing pro-forma documents?
A: Well, I trusted those people. So...
Q: But you know the consequences of signing blank documents?
A: Yes.34

Pasimio had tagged as forgeries her signatures appearing in the Disclosure Statements of March 21, 2001
and April 2, 2001. She, however, never presented any competent proof to successfully support her
contention. While testimonies of handwriting experts are not a must to prove forgeries, Pasimio did not
submit any evidence for the RTC to consider and readily conclude that the signatures in these Disclosure
Statements were forged.

Likewise, Pasimio also denied, having appeared before a notary public to subscribe and swear to the loan
documents, but never substantiated this allegation. It is settled that a notarial document, guaranteed by
public attestation in accordance with the law, must be sustained in full force and effect, absent strong,
complete, and conclusive proof of its falsity or nullity on account of some flaw or defect provided by law.35

The RTC and the CA, for unexplained reason, ignored Pasimio's admissions in her April 10, 2003 Affidavit in
which she stated that she relent the proceeds of the US$31,10 loan to Paolo Sun. A portion of this affidavit
reads:cralawlawlibrary

2. I agreed to lend (lie amount of Dollars: Thirty One Thousand One Hundred Only ($31,100.00) to PAOLO
SUN, payable on an agreed maturity date and at an agreed interest rate out of a Loan Against Deposit
Holdout that I will secure from PNB using my time deposits as collateral.

3.  PAOLO SUN and I agreed that should ( lend him the proceeds of my Loan Against Deposit Holdout from
PNB, he would pay all the bank charges and interest on such PNB loan, which he agreed to do so by
authorizing PNB to debit his deposit account for such amount equivalent to the charges/interest due on my
loan.

4. PNB approved my loan application, and so, after I have lent the loan proceeds to PAOLO SUN, the latter
has dutifully and promptly paid all bank charges and interest under the aforesaid arrangement;36 chanrobleslaw

Again, Pasimio did not deny the due execution of this affidavit. Rather, she lamely insisted she was only
forced to sign this affidavit upon Gregorio's representations that this was the only way that she would
recover her investments. Pasimio denied knowing Paolo Sun and having loan arrangements with him. She
would stick to her story that she signed the document under duress, needing, as she did at that time,
money to support a dying spouse. Gregorio also allegedly divulged that she needed Pasimio to sign the
Affidavit as she (Gregorio) was already being audited and investigated by the PNB Main office.

As between Pasimio's empty assertions about the above affidavit and its contents and the categorical
statements in the notarized affidavit detailing her arrangement with PNB and Paolo Sun, the choice as to
which is more credible should be clear and simple. In fact, Pasimio ought to have been estopped from
denying the contents of that affidavit.

Verily, Pasimio's version of the case taxes credulity. By her own testimonial account, she is a holder of a BS
Commerce degree and used to work as a personnel director of an advertising agency.37 It is, therefore, not
believable that a person of her educational attainment and stature, who appeared to be of good physical and
mental health, would simply hand over millions of pesos, no mean amount by ordinary standards, to a bank
and then blindly sign documents involving her money without exercising a modicum of care by verifying, or
at least taking a cursory look at what these documents mean. And yet, the courts a quo chose to close their
eyes to these absurdities.

Lest it be overlooked, Pasimio's husband Rene also affixed his signature on the subject promissory notes
and loan application forms to signify his consent to his wife's financial dealings. There is no allegation, let
alone proof; that Rene did not likewise understand what he was signing and giving his consent to. These
loan documents have, on their face, the words "Peso Loans Against Peso/FX Deposit Loan
Application/Approval Form," "Promissory Note and Hold-out on Peso/FX Savings Deposit/ Peso/FX Time
Deposit and Assignment of Deposit Substitute," and "Disclosure Statements of Loan/Credit Transaction"
printed in big letters. Thus, it is reasonable to assume that, at first glance, Pasimio and husband Rene would
have been put on notice of what these documents were. What they signed were pro-forma bank documents,
printed in full but with blanks to be filled up with specific terms thereof such as loan amount, interest rate,
and security, among others. They were not, in fine, empty white sheets of paper. It may be that Pasimio
was indeed made to sign the blank spaces of the loan documents. Be that as it may, it is well-nigh
impossible that she had absolutely no idea what they actually were, she having testified being a PNB
depositor for some twenty years. Indeed, the Court is hard-pressed to believe that she has not encountered
these documents before, just as it is also hard to imagine that her husband did not notice the titles of these
documents and had no clue what they were.

Pasimio would parlay the idea that she signed certain loan documents and the April 10, 2003 affidavit under
duress or undue influence. Like her other unsubstantiated assertions, her allegations of improper influence,
duress or fraud practised on her by bank officers deserve scant consideration. Undue influence is described
under the Civil Code, thus: cralawlawlibrary

Art. 1337. There is undue influence when a person takes improper advantage of his power over the will of
another, depriving the latter of a reasonable freedom of choice. The following circumstances shall be
considered: the confidential, family, spiritual and other relations between the parties, or the fact that the
person alleged to have been unduly influenced was suffering from menial weakness, or was ignorant or in
financial distress. chanrobleslaw

As regards fraud, the Civil Code says: cralawlawlibrary

Art. 1338. There is fraud when, through insidious words or machinations of one of the contracting parties,
the other is induced to enter into a contract which without them, he would not have agreed to.

Art. 1344. In order that fraud may make a contract voidable, it should be serious and should not have been
employed by both contracting parties. chanrobleslaw

The employment of fraud, duress, or undue influence is a serious charge, and to be sustained it must be
supported by clear and convincing proof; it cannot be presumed.38 There is no allegation or evidence that
Gregorio and Miranda influenced Pasimio by employing means she could not well resist, and which controlled
her volition and induced her to sign the loan documents and the April 10, 2003 Affidavit, which otherwise
she would not have executed. Also, there was no evidence showing that Gregorio and Miranda's influence
interfered with Pasimio's exercise of independent discretion necessary to determine the advantage or
disadvantage of signing these documents.

Then, too, Pasimio failed to prove that Gregorio and Miranda defrauded her. Taking into consideration the
personal conditions of Pasimio, there is no clear and convincing evidence establishing serious fraud or
deceit, insidious words or machinations on the part of PNB or its officers, sufficient to impress or lead her
into error;39

It is germane to observe at this juncture that PNB has, in its favor, certain presumptions which Pasimio
failed to overturn. Rule 131, Sec. 3 of the Rules of Court specifies that a disputable presumption is
satisfactory if uncontradicted and not overcome by other evidence. Corollary thereto, paragraphs (r) and (s)
thereof read:cralawlawlibrary

SBC. 3. Disputable presumptions.— The following presumptions are satisfactory if uncontradicted, but may
be contradicted and overcome by other evidence: chanRoblesvirtualLawlibrary

xxxx

(r) That there was sufficient consideration for a contract;

(s) That a negotiable instrument was given or indorsed for a sufficient consideration; chanrobleslaw

and Sec. 24 of the Negotiable Instruments Law reads: cralawlawlibrary

SEC. 24. Presumption of consideration.— Every negotiable instrument is deemed prima facie to have been
issued for a valuable consideration; and every person whose signature appears thereon to have become a
party thereto for value. chanrobleslaw
Pasimio also failed to overcome the presumptions that a person takes ordinary care of his concerns,40 that
private transactions have been fair and regular,41 and that the ordinary course of business has been
followed.42

Certainly, the trial court erred in saying that Pasimio "had proved by convincing evidence that she had not
secured any loan accommodations from the defendant bank x x x and, thus, is entitled for the return of said
deposit x x x" and that "[t]he factum probans to sustain parties cause has been successfully hurdled and
undertaken by plaintiff, in contradistinction to defendant's mere denial of a transport obligation, the latter
failing to overcome the quantum of evidence presented by plaintiff to tilt the scale of justice in favor of
plaintiff herein."43 In truth, other than her self-serving statements, Pasimio had nothing else to show against
PNB's evidence. The greater weight of credible evidence as to whether Pasimio secured from PNB loans
covered by promissory notes with hold-out provisions is decidedly in favor of petitioner bank.

To be sure, the RTC did not explain its reasons for coming up with these conclusions and did not even
bother to discuss its evaluation of the merits of Pasimio's evidence. The Court also notes that the trial court
never even declared that, indeed, Pasimio and her husband were fooled into signing the loan documents and
made to believe that the loan documents were related to a high-yielding PNB product.

Hence, it may be said that the trial court violated in a sense the constitutional caveat enjoining courts from
rendering a decision "without expressing therein clearly and distinctly the facts and the law on which it is
based." The RTC had 1 ailed to discharge its duty to inform parties to litigation on how the case was
decided, with an explanation of the factual and legal reasons that led to the conclusions of the court.

The dismissal of PNB's petition is

based on mere speculations and
surmises

In denying Pasimio's appeal, the CA adopted verbatim the trial court's findings that there was no evidence
proving Pasimio's receipt of the loan proceeds and that the loan documents were highly questionable. The
appellate court also reasoned that since PNB was grossly negligent in transacting with Pasimio, the bank
should suffer the consequences.

In upholding the RTC's finding respecting Pasimio's never having received any loan proceeds, the CA
doubtless disregarded the rule holding that a promissory note is the best evidence of the transaction
embodied therein; also, to prove the existence of the loan, there is no need to submit a separate receipt to
prove that the borrower received the loan proceeds.44 Indeed, a promissory note represents a solemn
acknowledgment of a debt and a formal commitment to repay it on the date and under the conditions
agreed upon by the borrower and the lender. As has been held, a person who signs such an instrument is
bound to honor it as a legitimate obligation duly assumed by him through the signature he affixes thereto as
a token of his good faith. If he reneges on his promise without cause, he forfeits the sympathy and
assistance of this Court and deserves instead its sharp repudiation.45

The Court has also declared that a mere denial of the receipt of the loan, which is stated in a clear and
unequivocal manner in a public instrument, is not sufficient to assail its validity. To overthrow the recitals of
such instrument, convincing and more than merely preponderant evidence is necessary. A contrary rule
would throw wide open doors to fraud.46 Following this doctrine, Pasimio's notarized promissory notes
bearing her signature and that of her husband must be upheld, absent, as here, strong, complete, and
conclusive proof of their nullity.

The promissory notes, bearing Pasimio's signature, speak for themselves. To repeat, Pasimio has not
questioned the genuineness and due execution of the notes. By signing the promissory notes, she is deemed
to acknowledge receipt of the corresponding loan proceeds. Withal, she cannot plausibly set up the defense
that she did not apply for any loan, and receive the value of the notes or any consideration therefor in order
to escape her liabilities under these promissory notes.47

But the foregoing is not all. PNB presented evidence that strengthened its allegation on the existence of the
loan. Here, each promissory note was supported by a corresponding loan application form and disclosure
statement, all of which carried Pasimio's signatures. Isolated from each other, these documents might not
prove the existence of the loan, but when taken together, collectively, they show that Pasimio took the
necessary steps to contract loans from PNB and was aware of their terms and conditions.
Further, this Court does not agree that the loan documents were "highly questionable." The trial court
arrived at this conclusion upon observing that the March 21, 2001, April 2, 2001, and December 7, 2001
loan application forms and promissory notes did not bear Pasimio's community tax certificate number and
because it appeared that the blanks for the specific terms of these loan documents were filled up on
different dates considering that some typewritten entries appeared to be bolder or darker than the others.

These reasons are specious as they are flimsy.

First, the authenticity of these loan documents should not be affected merely because their blank spaces
appeared to have been filled up, if that be the case, on different dates, using different typewriters. As PNB
aptly puts it, there is nothing suspicious or inherently wrong about bank forms being filled up on different
dates since these are usually pre-typed, with the blanks thereon to be filled up subsequently, depending on
the specific terms of the transaction with a client, and thereafter presented to the latter for signing.

Second, the absence of Pasimio's community tax certificate number in : said loan documents neither vitiates
the transaction nor invalidates the document. If at all, such absence renders the notarization of the loan
documents defective. Under the notarial rules at that time, i.e., Sec. 163 (a) of Republic Act No. 7160,
otherwise known as the Local Government Code of 1991, where an individual subject to the community tax
acknowledges any document before a notary public, it shall be the duty of the administering officer to
require such individual to exhibit the community tax certificate. The defective notarization of the loan
documents only means that these documents would not be carrying the evidentiary weight conferred upon it
with respect to its due execution; that they should be treated as a private document to be examined in
appropriate cases under the parameters of Sec. 20, Rule 132 of the Rules of Court which provides that
"before any private document offered as authentic is received in evidence, its due execution and authenticity
must be proved either: (a) by anyone who saw the document executed or written; or (b) by evidence of the
genuineness of the signature or handwriting of the maker x x x." Settled is the rule that a defective
notarization will strip the document of its public character and reduce it to a private instrument, and the
evidentiary standard of its validity shall be based on preponderance of evidence.48

It must be stressed that the adverted defective notarization should not have been made an issue at all in
the first place, for Pasimio already admitted executing the documents in question, or to put it in another
way, she did not deny that the signatures appearing thereon were hers and her husband's. Thus, the
requirements of Sec. 20, Rule 132 of the Rules of Court have been sufficiently met and all doubts as to their
authenticity and due execution should have been put to rest.

More importantly, the records do not show that Pasimio alleged the regoing defects and presented any proof
for the trial court to consider and rule on.

Furthermore, the Court does not find sufficient evidence to support the CA's finding that PNB is guilty of
gross negligence and, thus, must suffer the consequences of its transactions with Pasimio. In this regard,
the CA explained that PNB foiled to exercise the highest degree of diligence required of banks because
allegedly, Gregorio was able to obtain Pasimio's signature and assent to re-lend the dollar loan proceeds to
Paolo Sun in a manner not in accordance with the ordinary course of business of hanks. Also, the appellate
court found PNB reprehensible for doing transactions outside the bank without any proper explanation of the
consequences of the document to be signed by [Pasimio] and because the bank personnel misrepresented
the true nature of the transaction.49

There is no sufficient evidence to support the foregoing. It must be stressed that these were solely drawn
from Pasimio's testimony that Gregorio went to her house for her to sign the April 10, 2003 Affidavit and
that the latter told her that the only way she could get her money back was to re-lend her money deposits
to Paolo Sun. Other than Pasimio's story, the CA had no other evidence to bolster these findings.

Further, the CA's conclusions that PNB's personnel were in violation of their duties and responsibilities as its
employees; that they committed gross negligence in dealing with their bank transactions; and that the bank
repeatedly failed to observe basic procedures thus, was guilty of serial negligence, are not supported by
sufficient evidence.

It was wrong for the CA to make the foregoing conclusions merely because another bank client, Virginia
Pollard (Pollard), testified to being a victim of irregular bank transactions of PNB Sucat. Even if Pollard were
telling the truth, her testimony should not have been considered proof that what she underwent is what
actually transpired between Pasimio and PNB. Res inter alios acta.  Acts and declarations of persons
strangers to a suit should, as a rule, be irrelevant as evidence. Pollard's transaction with PNB is entirely
different and totally unrelated to Pasimio's dealings with the bank.

What may be true in the case of Pollard may not hold true for Pasimio. It was quite erroneous for the
appellate court to declare PNB grossly negligent in its transactions with Pasimio when the only evidence it
had discussed on the matter was Pollard's testimony. It may be true that the PNB was grossly negligent in
dealing with Pollard, but this does not automatically mean that PNB was grossly negligent toward Pasimio as
well. Hence, the CA had no basis in saying that "[e]ven assuming that [Pasimio] was concocting her version
of the facts, fit] still find[s] irregularities and inconsistencies that have attributed to the unjustified refusal to
return the investment placement and to the commission of negligence."

Much is attempted to be made by the Memorandum on Irregular Lending Operation on Loans v. Deposit

Hold-Out (Sucat Branch) dated February 18, 2003. The memorandum does not pertain to Pasimio or her
accounts and transactions with the bank, albeit it discusses Garcia and Miranda's sham dealings with other
bank clients. Hence, the memorandum is really not determinative of the critical question of whether or not
Pasimio sought and eventually secured loan accommodations from PNB.

Here, the RTC and the CA focused on finding trivial Haws and weaknesses in PNB's evidence and totally
disregarded the bank's most telling proof, foremost of which are the notarized notes Had the courts a
quo looked at and considered the totality of the bank's evidence, then it would have realized how
preposterous the story that Pasimio spun was, a story featuring, at bottom, a well-educated, accomplished
woman signing several pieces of bank documents involving millions of pesos, without knowing, nay even
reading, what she is signing.

Finally, it is well to consider this rule: that 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.50

Under this rule, parol evidence or oral evidence cannot be given to contradict, change or vary a written
document, except if a party presents evidence to modify, explain, or add to the terms of a written
agreement and puts in issue in his pleadings: (a) an intrinsic ambiguity, mistake, or imperfection in the
written agreement; (b) the failure of the written agreement to express the true intent and agreement of the
parties; (c) the validity of the written agreement; and (d) the existence of other terms agreed to by the
parties or their successors-in-interest after the execution of the written agreement.51

Such evidence, however, must be clear and convincing and of such sufficient credibility as to overturn the
written agreement.52 Since no evidence of such nature is before the Court, the documents embodying the
loan agreement of the parties should be upheld.

WHEREFORE, premises considered, the petition is GRANTED. The assailed Decision of the Court of Appeals
dated January 23, 2013 in CA-G.R. CV No. 94079 is REVERSED and SET ASIDE. Respondent Ligaya M.
Pasimio's complaint in Civil Case No. CV-05-0195 before the egional Trial Court of Paranaque City, Branch
196 is DISMISSED for lack of merit.

No costs.

SO ORDERED. chanroblesvirtuallawlibrary

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 115625 January 23, 1998

ESMUNDO B. RIVERA, petitioner,
vs.
COURT OF APPEALS, AMY ROBLES, PEREGRINO MIRAMBEL and MERLINA
MIRAMBEL, respondents.

PANGANIBAN, J.:

In deciding this appeal, the Court relies on the rule that a party who has the burden of proof in a civil
case must establish his cause of action by a preponderance of evidence. When the evidence of the
parties is in equipoise, or when there is a doubt as to where the preponderance of evidence lies, the
party with the burden of proof fails and the petition/complaint must thus be denied.

Statement of the Case

The foregoing dictum is applied by this Court in denying this petition for review on certiorari assailing
the February 21, 1994 Decision  of the Court of Appeals  in CA-G.R SP No. 32360, which held:
1 2

ACCORDINGLY, the instant petition for review is hereby DISMISSED for lack of
merit. No pronouncement as to costs.

IT IS SO ORDERED. 3

The petition for review dismissed by the Court of Appeals challenged the decision  of the 4

Regional Trial Court of Valenzuela, Branch 172,   which disposed as follows:

5

The evidence on record presented by the plaintiff does not also show that his
parents and himself have prior possession of the land in question. The
evidence presented by the defendants, however, show that they have been the
caretaker of the said public land located at Malinta, Valenzuela and adjacent to
private lot of plaintiff since the year 1969 which was applied for by their
principal, Jose Bayani Salcedo under Miscellaneous Sales Application No.
(111-6) 131 now MLI (13-1) 33-2D.

It is very evident that the defendants are not squatters on the private land of
the plaintiff.

Accordingly, therefore, the Joint Decision of the Metropolitan Trial Court dated
March 18, 1993 is hereby set aside and the three complaints, Civil Case Nos.
5740, 5741 and 5742 of the Court a quo are hereby dismissed without
pronouncement as to costs.

IT IS SO ORDERED. 6

The Antecedent Facts

The facts are narrated by Respondent Court of Appeals as follows:

On July 19, 1990, petitioner filed complaints for ejectment against private
respondents Amy Robles Peregrino Mirambel, and Merlina Mirambel, docketed
as Civil Case Nos. 5740, 5741 and 5742, respectively, before the Metropolitan
Trial Court of Valenzuela, Branch 81.

On August 8, 1990, movant Jose Bayani A. Salcedo filed an urgent motion for
intervention on the ground that he has a legal interest in the subject for he
applied for title of the public land under "MSA No. (11-6) 131" (now MII [131-1]
33-D), which was denied on January 2, 1991.

On August 8, 1990, private respondents filed their answers, respectively.

After submission of their position papers, the (Metropolitan Trial Court)

rendered joint judgment in favor of the petitioner and against the private
respondents on March 18, 1993, the dispositive portion of which herein-below
quoted:

In fine, by evidence plaintiff has preponderably established his

cause of action.

WHEREFORE, judgment is hereby rendered in favor of the

plaintiff and against each of the above-named defendants and
any/all persons claiming rights respectively under each of them,
ordering the latter as follows:

1. In Civil Case No. 5740

a). To remove her house and to vacate plaintiff's land, together

with all persons claiming rights under her;

b). To pay plaintiff reasonable compensation for her use and

occupancy of the land from May 29, 1990 up to the time that she
actually vacates the same, at the rate of P500.00 a month;

c). To pay plaintiff attorney's fees in the sum of P3,500.00; and

d). To pay the costs of suit.

2. In Civil Case No. 5741

a). To remove his house and to vacate plaintiffs' land, together

with all persons claiming rights under him;

b). To pay plaintiff reasonable compensation for his use and

occupancy of the land from May 29, 1990 up to the time that he
actually vacates the same, at the rate of P500.00 a month;

c). To pay plaintiff attorney's fees in the sum of P3,500.00; and

d). To pay the costs of suit.

3. In Civil Case No. 5742

 a). To remove her house and to vacate plaintiffs land, together
with all persons claiming rights under her;

b). To pay plaintiff reasonable compensation for her use and

occupancy of the land from May 29, 1990 up to the time that she
actually vacates the same, at the rate of P500.00 a month;

c). To pay plaintiff attorney's fees in the sum of P3,500.00; and

d). To pay the costs of suit.

SO ORDERED.

Dissatisfied, private respondent filed an appeal before the (Regional Trial

Court) which rendered the assailed judgment on September 21, 1993 reversing
and setting aside the decision of the (Metropolitan Trial Court). 7

Thereafter, petitioner appealed to Respondent Court of Appeals, raising the following

assignment of errors:

RESPONDENT JUDGE GRAVELY ERRED IN FINDING THAT RESPONDENTS'

HOUSES ARE LOCATED ON THE PUBLIC LAND APPLIED FOR BY COL. ATTY.
JOSE BAYANI SALCEDO BASED MERELY ON A LETTER DATED JUNE 7, 1971
BY THE DISTRICT LAND OFFICER OF THE BUREAU OF LAND ADDRESSED
TO EULOGIO J. RIVERA, PETITIONER'S FATHER.

II

RESPONDENT JUDGE GRAVELY ERRED IN FINDING THAT PETITIONER AND

HIS PARENTS/PREDECESSOR-IN-INTEREST NEVER HAD PRIOR
POSSESSION OF THE LAND AND THAT INSTEAD IT WAS RESPONDENTS
WHO HAVE BEEN IN OCCUPANCY THEREOF SINCE 1969 AS CARETAKER OF
COL. ATTY. JOSE BAYANI SALCEDO.

III

RESPONDENT JUDGE GRAVELY ERRED IN FINDING THAT PETITIONER'S

LAND ENCROACHED UPON THE PUBLIC LAND APPLIED FOR BY COL. ATTY.
JOSE BAYANI SALCEDO BY AN AREA OF MORE OR LESS 400 SQUARE
METERS DUE TO RESURVEYS MADE BY PETITIONER AND HIS PARENTS. 8

As earlier noted, the Court of Appeals dismissed the petition for failure of petitioner, as
plaintiff before the trial court, to prove a cause of action. Hence, this petition for review. 9

Public Respondent's Ruling

In dismissing the petition, the Court of Appeals ruled as follows:

Petitioner maintains that the respondent court committed grave abuse of
discretion in setting aside the decision of the trial court particularly in finding
that the lots where private respondents built their houses are outside of the
land owned by the petitioner, it appearing that such finding lacks evidentiary
basis.

In the case at bar, petitioner seeks to eject herein private respondents who
allegedly illegally constructed their house on his land. The Metropolitan Trial
Court ruled in favor of the petitioner and ordered the private respondents to
vacate the subject premises. On appeal, however, the respondent court
reversed the appealed judgment taking into consideration that the land where
the house of the private respondents stand is outside of the area owned by the
petitioner, hence, there was no cause of action.

The decisive issue in the case at bar is "whether or not the lot where private
respondents constructed their abode within the land [owned] by the petitioner.

The trial court believes so while the respondent court ruled otherwise and
stated that the houses are located in a public land. After a careful scrutiny of
the decisions of the courts a quo, We find that both decisions are not
supported by substantial evidence. The decision of the trial court stated that:
"The evidence on hand indubitaly (sic) show however that a title on the
property has been issued to herein plaintiff (petitioner herein). The claim of the
defendants therefore that they are occupying a public land cannot be taken as
gospel truth." It must be noted, however, that there is no showing that the
evidence on hand showed that the lot on which private respondents
constructed their abode are [sic] located in the "titled" property of the
petitioner. The decision of the trial court disclosed that its Order dated August
12, 1991, directing the Land Management Bureau to conduct a field survey and
to submit a report thereof to enable the Court to determine whether the land
subject matter of these cases is a public or private land, was never
implemented. It can be seen that there is no certainty that the houses of the
private respondents are located on the lot owned by the petitioner. Nor was
there an ocular inspection sanctioned by the court where the parties were duly
represented. The Court cannot rely solely on the survey commissioned by one
party for it may be self-serving absent a thorough verification thereof.

The respondent court's reliance of a letter dated June 7, 1971 of the District
Land Officer Jesus B. Tabao to petitioner's predecessor-in-interest informing
him that his application cannot be given due course because of the prior
application of Jose Bayani Salcedo (June 26, 1969) is misplaced for it does not
proved anything. The abovementioned observations as pertaining to the trial
court's finding that "the private land of the petitioner and his parents
encroached upon the subject land of the public domain to an area of more or
less 400 square meters due to re-survey made by the plaintiff and his parents".

In fine, We find that the courts a quo failed to make a definitive ruling on the
issue of whether or not the houses constructed by the private respondents are
within the private land owned by the petitioner or a public land. The parties
should have conducted a field survey directed by the court below or to have an
ocular inspection of the subject premises.
 Verily, it appears that petitioner, as plaintiff failed to establish a cause of
action, hence, the complaint must perforce be dismissed.  10

The Issue

In his Memorandum dated February 22, 1996, Petitioner Esmundo B. Rivera formulated the
issue as follows: whether "private respondents' houses lie inside petitioner's land, and
whether petitioner was able to prove that fact."   Put differently, the issue for resolution is
11

whether or not petitioner proved his cause of action.

The Court's Ruling

The petition is unmeritorious.

Proof Required in Civil Cases

Basic is the rule in civil cases that "the party having the burden of proof must establish his
case by a preponderance of evidence."   By "preponderance of evidence is meant simply
12

evidence which is of greater weight, or more convincing than that which is offered in
opposition to it."   In the present ejectment case, petitioner (as plaintiff) has the burden of
13

proving that the houses of private respondents were located within his titled land. To justify a
judgment in his favor, petitioner must therefore establish a preponderance of evidence on
this essential fact.

Petitioner points out that the field survey, verification and measurement of his land by his
privately hired geodetic engineer, Ildefonso Padigos, "found that private respondent's
houses are situated inside the same."   Insisting on the findings of this private survey,
14

petitioner assails the Respondent Court of Appeals for considering the same "undeserving of
credence and belief" and insufficient to prove his case.  15

This Court is not persuaded. The extant records of this case support the finding of the Court
of Appeals that the aggregate of evidence submitted by both parties was insufficient to
determine with certainty whether the private respondents' houses were inside the petitioner's
entitled property. As noted by Respondent Court, private respondents' claim that their
houses were built on public land, which Attorney Salcedo applied for, is not convincing
because petitioner has a transfer certificate of title over the same parcel of land. Likewise
unconvincing is the private survey commissioned by the petitioner himself to prove that the
houses of private respondents encroached on his property. The reliability of the survey
would have indubitable had it been properly authenticated by the Bureau of Lands or by
officials thereof. 
16

Moreover, the field survey ordered by the Metropolitan Trial Court was never conducted.
Neither was an ocular inspection of the premises held in the presence of both parties. As
correctly concluded by the Court of Appeals, the absence of both processes precluded the
final determination of the main issue.

Where the evidence on an issue of fact is in equipoise or there is doubt on which side the
evidence preponderates[,] the party having the burden of proof fails upon that
issue."   Therefore, as "neither party was able to make out a case, neither side could
17

establish its cause of action and prevail with the evidence it had. They are thus no better off
than before they proceeded to litigate, and, as a consequence thereof, the courts can only
leave them as they are. In such cases, courts have no choice but to dismiss the
complaints/petitions." 18

In any event, we are here called upon essentially to review the public respondent's
assessment of the weight of the evidence presented by both parties. This factual question,
however, may not be raised in a petition for review under Rule 45 of the Rules of Court. This
rule is subject to well-recognized exceptions,  but petitioner failed to prove that this case
19

falls under one of them. If for this reason alone, the petition should be denied.

WHEREFORE, the petition for review on certiorari is hereby DENIED, with costs against
petitioner.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 107062 February 21, 1994

PHILIPPINE PRYCE ASSURANCE CORPORATION, petitioner,

vs.
THE COURT OF APPEALS, (Fourteenth Division) and GEGROCO, INC., respondents.

Ocampo, Dizon & Domingo and Rey Nathaniel C. Ifurung for petitioner.

A.M. Sison, Jr. & Associates for private respondent.

NOCON, J.:

Two purely technical, yet mandatory, rules of procedure frustrated petitioner's bid to get a favorable
decision from the Regional Trial Court and then again in the Court of Appeals.   These are non-
1

appearance during the pre-trial despite due notice, and non-payment of docket fees upon filing of its
third-party complaint. Just how strict should these rules be applied is a crucial issue in this present
dispute.

Petitioner, Interworld Assurance Corporation (the company now carries the corporate name
Philippine Pryce Assurance Corporation), was the butt of the complaint for collection of sum of
money, filed on May 13, 1988 by respondent, Gegroco, Inc. before the Makati Regional Trial Court,
Branch 138. The complaint alleged that petitioner issued two surety bonds (No. 0029, dated July 24,
1987 and No. 0037, dated October 7, 1987) in behalf of its principal Sagum General Merchandise for
FIVE HUNDRED THOUSAND (P500,000.00) PESOS and ONE MILLION (1,000,000.00) PESOS,
respectively.

On June 16, 1988, summons, together with the copy of the complaint, was served on petitioner.
Within the reglementary period, two successive motions were filed by petitioner praying for a total of
thirty (30) days extention within which to file a responsible pleading.

In its Answer, dated July 29, 1988, but filed only on August 4, 1988, petitioner admitted having
executed the said bonds, but denied liability because allegedly 1) the checks which were to pay for
the premiums bounced and were dishonored hence there is no contract to speak of between
petitioner and its supposed principal; and 2) that the bonds were merely to guarantee payment of its
principal's obligation, thus, excussion is necessary. After the issues had been joined, the case was
set for pre-trial conference on September 29, 1988. the petitioner received its notice on September
9, 1988, while the notice addressed to its counsel was returned to the trial court with the notation
"Return to Sender, Unclaimed."  2

On the scheduled date for pre-trial conference, only the counsel for petitioner appeared while both
the representative of respondent and its counsel were present. The counsel for petitioner manifested
that he was unable to contract the Vice-President for operations of petitioner, although his client
intended to file a third party complaint against its principal. Hence, the pre-trial was re-set to October
14, 1988. 3

On October 14, 1988, petitioner filed a "Motion with Leave to Admit Third-Party Complaint" with the
Third-Party Complaint attached. On this same day, in the presence of the representative for both
petitioner and respondent and their counsel, the pre-trial conference was re-set to December 1,
1988. Meanwhile on November 29, 1988, the court admitted the Third Party Complaint and ordered
service of summons on third party defendants.  4

On scheduled conference in December, petitioner and its counsel did not appear notwithstanding
their notice in open court.   The pre-trial was nevertheless re-set to February 1, 1989. However,
5

when the case was called for pre-trial conference on February 1, 1989, petitioner was again nor
presented by its officer or its counsel, despite being duly notified. Hence, upon motion of respondent,
petitioner was considered as in default and respondent was allowed to present evidence ex-parte,
which was calendared on February 24, 1989.   Petitioner received a copy of the Order of Default and
6

a copy of the Order setting the reception of respondent's evidence ex-parte, both dated February 1,
1989, on February 16, 1989.  7

On March 6, 1989, a decision was rendered by the trial court, the dispositive portion reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the
defendant Interworld Assurance Corporation to pay the amount of P1,500,000.00
representing the principal of the amount due, plus legal interest thereon from April 7,
1988, until date of payment; and P20,000.00 as and for attorney's fees.  8

Petitioner's "Motion for Reconsideration and New Trial" dated April 17, 1989, having been denied it
elevated its case to the Court of Appeals which however, affirmed the decision of the trial court as
well as the latter's order denying petitioner's motion for reconsideration.

Before us, petitioner assigns as errors the following:

 I. The respondent Court of Appeals gravely erred in declaring that the case was
already ripe for pre-trial conference when the trial court set it for the holding thereof.

II. The respondent Court of Appeals gravely erred in affirming the decision of the trial
court by relying on the ruling laid down by this Honorable Court in the case of
Manchester Development Corporation v. Court of Appeals, 149 SCRA 562, and
disregarding the doctrine laid down in the case of Sun Insurance Office, Ltd. (SIOL)
v. Asuncion, 170 SCRA 274.

III. The respondent Court of Appeals gravely erred in declaring that it would be
useless and a waste of time to remand the case for further proceedings as
defendant-appellant has no meritorious defense.

We do not find any reversible error in the conclusion reached by the court a quo.

Relying on Section 1, Rule 20 of the Rules of court, petitioner argues that since the last pleading,
which was supposed to be the third-party defendant's answer has not been filed, the case is not yet
ripe for pre-trial. This argument must fail on three points. First, the trial court asserted, and we agree,
that no answer to the third party complaint is forthcoming as petitioner never initiated the service of
summons on the third party defendant. The court further said:

. . . Defendant's claim that it was not aware of the Order admitting the third-party
complaint is preposterous. Sec. 8, Rule 13 of the Rules, provides:

Completeness of service — . . . Service by registered mail is

complete upon actual receipt by the addressee, but if he fails to claim
his mail from the post office within five (5) days from the date of first
notice of the postmaster, service shall take effect at the expiration of
such time. 9

Moreover, we observed that all copies of notices and orders issued by the court for petitioner's
counsel were returned with the notation "Return to Sender, Unclaimed." Yet when he chose to, he
would appear in court despite supposed lack of notice.

Second, in the regular course of events, the third-party defendant's answer would have been
regarded as the last pleading referred to in Sec. 1, Rule 20. However, petitioner cannot just
disregard the court's order to be present during the pre-trial and give a flimsy excuse, such as that
the answer has yet to be filed.

The pre-trial is mandatory in any action, the main objective being to simplify, abbreviate and
expedite trial, if not to fully dispense with it. Hence, consistent with its mandatory character the Rules
oblige not only the lawyers but the parties as well to appear for this purpose before the Court   and
10

when a party fails to appear at a pre-trial conference he may be non-suited or considered as in

default. 
11

Records show that even at the very start, petitioner could have been declared as in default since it
was not properly presented during the first scheduled pre-trial on September 29, 1988. Nothing in
the record is attached which would show that petitioner's counsel had a special authority to act in
behalf of his client other than as its lawyer.
We have said that in those instances where a party may not himself be present at the pre-trial, and
another person substitutes for him, or his lawyer undertakes to appear not only as an attorney but in
substitution of the client's person, it is imperative for that representative or the lawyer to have
"special authority" to enter into agreements which otherwise only the client has the capacity to
make. 12

Third, the court of Appeals properly considered the third-party complaint as a mere scrap of paper
due to petitioner's failure to pay the requisite docket fees. Said the court a quo:

A third-party complaint is one of the pleadings for which Clerks of court of Regional
Trial Courts are mandated to collect docket fees pursuant to Section 5, Rule 141 of
the Rules of Court. The record is bereft of any showing tha(t) the appellant paid the
corresponding docket fees on its third-party complaint. Unless and until the
corresponding docket fees are paid, the trial court would not acquire jurisdiction over
the third-party complaint (Manchester Development Corporation vs. Court of
Appeals, 149 SCRA 562). The third-party complaint was thus reduced to a mere
scrap of paper not worthy of the trial court's attention. Hence, the trial court can and
correctly set the case for pre-trial on the basis of the complaint, the answer and the
answer to the counterclaim. 13

It is really irrelevant in the instant case whether the ruling in Sun Insurance Office, Ltd. (SIOL) v.
Asuncion   or that in Manchester Development Corp. v. C.A.   was applied. Sun Insurance and
14 15

Manchester are mere reiteration of old jurisprudential pronouncements on the effect of non-payment
of docket fees.   In previous cases, we have consistently ruled that the court cannot acquire
16

jurisdiction over the subject matter of a case, unless the docket fees are paid.

Moreover, the principle laid down in Manchester could have very well been applied in Sun
Insurance. We then said:

The principle in Manchester [Manchester Development Corp. v. C.A., 149 SCRA 562
(1987)] could very well be applied in the present case. The pattern and the intent to
defraud the government of the docket fee due it is obvious not only in the filing of the
original complaint but also in the filing of the second amended complaint.

xxx xxx xxx

In the present case, a more liberal interpretation of the rules is called for considering
that, unlike Manchester, private respondent demonstrated his willingness to abide by
the rules by paying the additional docket fees as required. The promulgation of the
decision in Manchester must have had that sobering influence on private respondent
who thus paid the additional docket fee as ordered by the respondent court. It
triggered his change of stance by manifesting his willingness to pay such additional
docket fees as may be ordered.  17

Thus, we laid down the rules as follows:

1. It is not simply the filing of the complaint or appropriate initiatory pleading, but the
payment of the prescribed docket fee, that vests a trial court with jurisdiction over the
subject-matter or nature of the action. Where the filing of the initiatory pleading is not
accompanied by payment of the docket fee, the court may allow payment of the fee
within a reasonable time, but in no case beyond the applicable prescriptive or
reglamentary period.
 2. The same rule applies to permissive counterclaims, third-party claims and similar
pleadings, which shall not be considered filed until and unless the filing fee
prescribed therefor is paid. The court may also allow payment of said fee within a
prescriptive or reglementary period.

3. Where the trial court acquires jurisdiction over a claim by the filing of the
appropriate pleading and payment of the prescribed filing fee, but subsequently, the
judgment awards a claim nor specified in the pleading, or if specified the same has
not been left for determination by the court, the additional filing fee therefor shall
constitute a lien on the judgment. It shall be the responsibility of the clerk of court or
his duly authorized deputy to enforce said lien and assess and collect the additional
fee. 
18

It should be remembered that both in Manchester and Sun Insurance plaintiffs therein paid docket
fees upon filing of their respective pleadings, although the amount tendered were found to be
insufficient considering the amounts of the reliefs sought in their complaints. In the present case,
petitioner did not and never attempted to pay the requisite docket fee. Neither is there any showing
that petitioner even manifested to be given time to pay the requisite docket fee, as in fact it was not
present during the scheduled pre-trial on December 1, 1988 and then again on February 1, 1989.
Perforce, it is as if the third-party complaint was never filed.

Finally, there is reason to believe that partitioner does not really have a good defense. Petitioner
hinges its defense on two arguments, namely: a) that the checks issued by its principal which were
supposed to pay for the premiums, bounced, hence there is no contract of surety to speak of; and 2)
that as early as 1986 and covering the time of the Surety Bond, Interworld Assurance Company
(now Phil. Pryce) was not yet authorized by the insurance Commission to issue such bonds.

The Insurance Code states that:

Sec. 177. The surety is entitled to payment of the premium as soon as the contract of
suretyship or bond is perfected and delivered to the obligor. No contract of suretyship
or bonding shall be valid and binding unless and until the premium therefor has been
paid, except where the obligee has accepted the bond, in which case the bond
becomes valid and enforceable irrespective of whether or not the premium has been
paid by the obligor to the surety. . . . (emphasis added)

The above provision outrightly negates petitioner's first defense. In a desperate attempt to escape
liability, petitioner further asserts that the above provision is not applicable because the respondent
allegedly had not accepted the surety bond, hence could not have delivered the goods to Sagum
Enterprises. This statement clearly intends to muddle the facts as found by the trial court and which
are on record.

In the first place, petitioner, in its answer, admitted to have issued the bonds subject matter of the
original action.   Secondly, the testimony of Mr. Leonardo T. Guzman, witness for the respondent,
19

reveals the following:

Q. What are the conditions and terms of sales you extended to

Sagum General Merchandise?

A. First, we required him to submit to us Surety Bond to guaranty

payment of the spare parts to be purchased. Then we sell to them on
90 days credit. Also, we required them to issue post-dated checks.
 Q. Did Sagum General merchandise comply with your surety bond
requirement?

A. Yes. They submitted to us and which we have accepted two surety

bonds.

Q Will you please present to us the aforesaid surety bonds?

A. Interworld Assurance Corp. Surety Bond No. 0029 for P500,000

dated July 24, 1987 and Interworld Assurance Corp. Surety Bond No.
0037 for P1,000.000 dated October 7, 1987.  20

Likewise attached to the record are exhibits C to C-18   consisting of delivery invoices addressed to
21

Sagum General Merchandise proving that parts were purchased, delivered and received.

On the other hand, petitioner's defense that it did not have authority to issue a Surety Bond when it
did is an admission of fraud committed against respondent. No person can claim benefit from the
wrong he himself committed. A representation made is rendered conclusive upon the person making
it and cannot be denied or disproved as against the person relying thereon.  22

WHEREFORE, in view of the foregoing, the decision of the Court of Appeals dismissing the petition
before them and affirming the decision of the trial court and its order denying petitioner's Motion for
Reconsideration are hereby AFFIRMED. The present petition is DISMISSED for lack of merit.

SO ORDERED.

THIRD DIVISION

June 7, 2017

G.R. No. 212934

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
BLAS GAA y RODRIGUEZ, Accused-Appellant

DECISION
TIJAM, J.:

Accused-appellant Blas Gaa y Rodriguez questions the Decision   dated February 13, 2014 of the
1

Court of Appeals (CA) in CA-G.R. CR-H.C. No. 04906, which affirmed the Decision   dated February
2

10, 2011 rendered by the Regional Trial Court (RTC), Branch 62 of Gumaca, Quezon in Criminal
Case Nos. 7972-G and 7973-G, finding accused-appellant guilty of two counts of Qualified Rape.

Accused-appellant was charged with two counts of Qualified Statutory Rape under separate
Informations, to wit:

Criminal Case No. 7972-G

That on or about 8:00 o'clock in the morning of the 4th day of April 2001 at Barangay XXX   ,
3

Municipality of Atimonan, Province of Quezon, Philippines and within the jurisdiction of this
Honorable Court, the above named accused, with force and intimidation, did then and there willfully,
unlawfully, and feloniously have carnal knowledge of one AAA   , a minor, 9 years old, 5 months and
4

1 day old, against her will.

That the accused is the legitimate father of the victim AAA.

Contrary to Law. 5

Criminal Case No. 7973-G

That on or about the month of March 2003 at Barangay XXX, Municipality of Atimonan, Province of
Quezon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
with force and intimidation, did then and there willfully, unlawfully, and feloniously have carnal
knowledge of one AAA, a minor. 11 years old, against her will.

That the accused is the legitimate father of the victim AAA.

Contrary to Law. 6

Upon arraignment, the accused-appellant pleaded not guilty to the charges. Trial ensued.

The pertinent facts of the case, as summarized by the CA, are as follows:

For the first count of qualified

statutory rape, in Criminal Case No. 7972-G:

On or about 8:00 o'clock in the morning of April 4, 2001, 'AAA' was at their house locatE'.d at Brgy.
XXX, Atimonan, Quezon, together with his father, Blas Gaa. AAA's mother was working in
Mandaluyong City while her younger brother was ordered by Blas Gaa to fetch water outside their
house. Alone with Blas Gaa, AAA was asked by him to remove her shorts and panty. Blas Gaa also
removed his own shorts and brief and placed himself on top of AAA. He tried to insert his penis to
AAA's vagina for several times. AAA felt pain because of the poking act of her father but was able to
evade his penis. Blas Gaa did not succeed in penetrating AAA's vagina but his penis was in the
'bokana' (sic) of AAA's vagina. Blas Gaa also inserted his fingers inside AAA's vagina and she
described this act to be "kinali-kalikot" and "sinundut-sundot". While Blas Gaa was doing this, he told
AAA that she should behave and should not stop him from what he was doing. She did not report to
anybody the April 4, 2001 incident until April 7, 2003.
After April 4, 2001, AAA repeatedly had the same experience from Blas Gaa. She said that the
incident happened many times.

The last incident happened sometime in March 2003.

For the second count of qualified

statutory rape, in Criminal Case No. 7973-G:

Sometime in March 2003, AAA was in their bedroom when Blas Gaa threatened to kill her with a
bolo. Just like the 2001 incident, Blas Gaa removed his brief and shorts and AAA was able to see his
penis. He forced his penis against her vagina while she was in a lying position. She tried to evade
him but he was threatening her with his bolo. She is mad at him for what he did to her and cannot
forgive him. She first reported the incident to her mother on April 6, 2003 because her younger
brother saw Blas Gaa on top of her. He was the one who first told their mother about the incident
and AAA's mother asked her if it were (sic) true so she told her it was true. AAA's mother got mad
and filed the cases against Blas Gaa.

x x x           x x x          x x x

On the part of the defense, Blas Gaa testified that on April 4, 2001, between 7-10 a.m., he was in the
surroundings of his house cutting grass. He only returned to the house to drink water. He denied
raping AAA, his daughter, and threatening to kill her. He also denied the incident which happened
sometime in March 2003. He said that the reason that AAA accused him of rape is because his wife
was having an affair with another man. He suggested to his .wife to have AAA medically examined
and that the medical certificate shows a negative result for laceration, spematozoa, among others.  7

On February 10, 2011, the RTC found accused-appellant guilty beyond reasonable doubt of the
charges, viz:

WHEREFORE, Accused Blas Gaa y Rodriguez is found GUILTY beyond reasonable doubt of two
counts of qualified statutory rape and he is sentenced to suffer the penalty of reclusion perpetua,
without eligibility for parole in each of the two counts of rape. Accused is ordered to pay the victim
AAA in each of the two counts ₱50,000.00 moral damages, ₱50,000.00 as exemplary, damages and
another ₱50,000.00 as civil indemnity:

Costs against the accused.

SO ORDERED.  8

On appeal, the CA affirmed with modification the ruling of the RTC, as follows:

WHEREFORE, premises considered, the RTC Decision dated February 10, 2011 is AFFIRMED, but
with MODIFICATION as to monetary awards. The RTC Decision should read, as follows:

xxx

"WHEREFORE, Accused Blas Gaa y Rodriguez is found GUILTY beyond reasonable doubt of two
counts of qualified statutory rape and he is sentenced to suffer the penalty of reclusion perpetua,
without eligibility for parole in each of the two counts of rape. Accused is ordered to pay the victim
AAA in each of the two counts ₱75,000.00 moral damages, ₱75,000.00 as exemplary damages and
another ₱30,000.00 as civil indemnity.
Costs against the accused.

xxx

SO ORDERED.  9

Hence, this appeal with accused-appellant raising the following assignment of errors:

I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT

DESPITE THE PROSECUTION'S FAILURE TO PROVE BEYOND REASONABLE DOUBT THE
RELATIONSHIP BETWEEN THE VICTIM AND THE ACCUSED-APPELLANT.

II. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT

DESPITE THE PROSECUTION'S FAILURE TO PROVE HIS GUILT BEYOND REASONABLE
DOUBT.  10

Article 266-A of the Revised Penal Code (RPC) provides that Rape is committed:

1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat or intimidation;

b) When the offended party is deprived of reason or is otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority;

d) When the offended party is under twelve (12) years of age or is demented, even though
none of the circumstances mentioned above be present.

x x x           x x x          x x x

Whereas, Article 266-B of the RPC provides the penalties for the crime of rape:

ART. 266-B. Penalties. - Rape under paragraph 1 of the next preceding article shall be punished
by reclusion perpetua.

x x x           x x x          x x x

The death penalty shall also be imposed if the crime of rape is committed with any of the following
aggravating/qualifying circumstances:

1) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant,
stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the
common-law spouse of the parent of the victim.

Statutory rape is committed by sexual intercourse with a woman below 12 years of age regardless of
her consent, or the lack of it, to the sexual act. Proof of force, intimidation, or consent is unnecessary
as they are not elements of statutory rape, considering that the absence of free consent is
conclusively presumed when the victim is below the age of 12. At that age, the law presumes that
the victim does not possess discernment and is incapable of giving intelligent consent to the sexual
act. Thus, to convict an accused of the crime of statutory rape, the prosecution carries the burden of
proving: (a) the age of the complainant; (b) the identity of the accused; and (c) the sexual intercourse
between the accused and the complainant.  11

The accused-appellant's argument that the prosecution failed to prove his relationship to AAA fails to
persuade Us. Here, both the RTC and the CA found that the prosecution had sufficiently proved that
the accused-appellant is AAA's father. Such finding is conclusive on this Court for, after all, We are
not a trier of facts.

We quote with conformity the finding of the CA that accused appellant is the father of AAA, to wit:

Accused-appellant admitted, on several occasions, that he is the father of AAA. In his Memorandum
dated September 15, 2010, he phrased the issue to be resolved in this manner: 'Whether or not
Accused Blas Gaa is guilty of raping his own daughter AAA', a clear admission of his relationship
with the victim. There, he did not raise the issue of whether AAA was his daughter. Similarly, as
pointed out by the People in its Appellee's Brief, during accused-appellant's cross-examination on
September 15, 2009, he admitted that AAA was one of his two children. x x x     x x x

x x x           x x x          x x x

AAA's birth certificate also shows that Blas Rodriguez Gaa is her father. It is clear as crystal that
accused-appellant is the father of AAA. His claim that he is not is obviously his futile attempt to
defend himself and remove the qualifying circumstance of the rape for which he was convicted in
order to lower his penalty. 
12

As to the second assignment of error, accused-appellant claims that the testimony of AAA did not
show that accused-appellant was able to insert his penis to the vagina of AAA, however slight. Thus,
taken together with the absence of hymenal laceration in the medical report, the same creates a
doubt as to whether the rape was consummated.

We are not convinced.

In rape cases, the credibility of the victim is almost always, the single most important issue. If the
testimony of the victim passes the test of credibility, which means it is credible, natural, convincing
and consistent with human nature and the normal course of things, the accused may be convicted
solely on that basis. 
13

The rule is settled that when the decision hinges on the credibility of witnesses and their respective
testimonies, the trial court's observations and conclusions deserve great respect and are accorded
finality, unless the records show facts or circumstances of material weight and substance that the
lower court overlooked, misunderstood or misappreciated, and which, if properly considered, would
alter the result of the case.   this is so because trial courts are in the best position to ascertain and
14

measure the sincerity and spontaneity of witnesses through their actual observation of the witnesses'
manner of testifying, their demeanor and behavior in court. Trial judges enjoy the advantage of
observing the witness' deportment and manner of testifying, her "furtive glance, blush of conscious
shame, hesitation, flippant or sneering tone, calmness, sigh, or the scant or full realization of an
oath" - all of which, are useful aids for an accurate determination of a witness' honesty and sincerity.
Trial judges, therefore, can better determine if such witnesses are telling the truth, being in the ideal
position to weigh conflicting testimonies. The rule finds an even more stringent application where the
said findings are sustained by the CA.  15
Here, the RTC found AAA's testimony straightforward, candid and was delivered in a convincing
manner which leaves no room for doubt that AAA was in fact raped by accused-appellant. 16 We
see no cogent reason to depart from the foregoing rule, since the accused-appellant failed to
demonstrate that the RTC and the CA overlooked, misunderstood or misapplied some facts 搗 f
weight and substance that will alter the assailed Decision.

AAA was steadfast in stating that the penis of accused-appellant touched the "bokana" of her
vagina, thus:

COURT:

Q. When you said that you avoid (sic) the penis of your father, you are saying that his penis did not
actually enter into your vagina?

A. No, Your Honor.

Q. But the very penis itself touched your vagina, is it not?

A. Yes, Your Honor.

ATTY. CABAGUE:

Your Honor, may the victim clarify what portion of the vagina touch (sic).

COURT:

Alright, let us ask her.

Q. What portion of your vagina did your father's 'ari' touch?

A. The inside portion of my vagina, Your Honor.

ATTY. CABAGUE:

Q. But it did not touch the lip of your vagina?

A. 'Nagdikit po'.

x x x           x x x          x x x

PROS.MATA:

Redirect, Your Honor.

Q. When you said 'sa may parting gitna' and that it touched the lip, where is that?

A. Near the hole, ma'am (sa may butas).

Q. You said that it touched the hole, do we get correctly that it touched the hole of your vagina? A.
Yes, ma'am.  17
The foregoing testimony establishes the fact that accused-appellant's penis penetrated, however
slight, the lips of the female organ or the labia of the pudendum. As such, the crime of rape was
consummated.

It is well-settled that full penetration of the female genital organ is not indispensable. It suffices that
there is proof of the entrance of the male organ into the labia of the pudendum of the female organ.
Any penetration of the female organ by the male organ, however slight, is sufficient. Penetration of
the penis by entry into the lips of the vagina, even without rupture or laceration of the hymen, is
enough to justify conviction for rape. 18

With Our finding that the rape was consummated, We now determine whether accused-appellant
should be charged with simple statutory rape or qualified statutory rape.  As We have ruled earlier,
1 漙 phi1

the relationship of the accused-appellant with the victim has been sufficiently proved by the
prosecution. Likewise, AAA's minority was established by her Birth Certificate   , showing thatAAA
19

was born on November 3, 1991. Thus, AAA was below 12 years of age at the time of the
commission of the two rape incidents.

Since the elements of minority of AAA and the relationship of the accused-appellant with AAA were
alleged in the two Informations and that the same were sufficiently proven by the prosecution during
the trial, We agree with the CA that accused-appellant is guilty of two counts of Qualified Statutory
Rape. Thus, the CA is correct in imposing upon the accusedappellant the penalty of reclusion
perpetua without eligibility for parole, in lieu of the death penalty, pursuant to Section 3   of Republic
20

Act No. 9346 (RA 9346), entitled as "An Act Prohibiting the Imposition of Death Penalty in the
Philippines."

However, We modify the amounts awarded to AAA in view of recent jurisprudence   imposing a 21

minimum amount of Php 100,000 as civil indemnity; Php 100,000 as moral damages; and Php
100,000 as exemplary damages in cas.es where the proper penalty for the crime committed by the
accused is death but where it cannot be imposed because of the enactment of RA 9346.  22

Thus, We increase the award of civil indemnity from Php 75,900 to Php 100,000; moral damages
from Php 75,000 to Php 100,0000; and exemplary damages from Php 30,000 to Php 100,000 .

Further, a legal interest of 6% per annum will be imposed on the total amount of damages awarded
to AAA counted from the date of the finality of this judgment until fully paid.

WHEREFORE, the foregoing considered, the appeal is DISMISSED. The Court of Appeals' Decision

dated February 13, 2014 in CA-G.R. CR-H.C. No. 04906 finding BLAS GAA y
RODRIGUEZ GUILTY beyond reasonable doubt of two counts of Qualified Statutory Rape and
sentencing him to suffer the penalty of reclusion perpetua, without eligibility for parole, for each
count of Qualified Statutory Rape is AFFIRMED WITH MODIFICATIONS that: (a) the award of civil
indemnity, moral damages and exemplary damages are increased to One Hundred Thousand Pesos
(₱l00,000); and (b) interest at the rate of 6% per annum is imposed on all damages awarded from
the date of the finality of this judgment until fully paid.

SO ORDERED.
 THIRD DIVISION

[G.R. NO. 154895 : November 18, 2004]

JOSIE GO TAMIO, Petitioner, v. ENCARNACION TICSON, Respondent.

DECISION

PANGANIBAN, J.:

In general, a lessee is not allowed to challenge the title of the lessor. Indeed, it is immaterial whether the
lessor had any title at all to the property at the time the lease was commenced. However, due to the
peculiar circumstances in the present case, the Court makes an exception to this rule. Otherwise, it would
sanction unjust enrichment in favor of the respondent and cause unjust poverty to the petitioner.

The Case

The instant Petition for Review on Certiorari1 seeks to set aside the February 28, 2002 Decision2 and the
April 30, 2002 Resolution3 of the Court of Appeals (CA) in CA-GR SP No. 62908. The dispositive portion of
the challenged Decision reads:

"WHEREFORE, the instant petition is hereby DENIED DUE COURSE and DISMISSED. The Decision, dated
March 24, 1999, is hereby AFFIRMED."4

The assailed Resolution denied reconsideration of the foregoing disposition.

The March 24, 1999 Decision5 of the Regional Trial Court (RTC)6 of Manila, upheld by the CA, disposed as
follows:

"WHEREFORE, the appealed judgment is hereby affirmed with modification, to wit:

1) Ordering [petitioner] to pay [respondent] the amount of P86,000 as payment for rental arrearages
covering the period September, 1996 to June, 1997 and from July, 1997 to December, 1997 at a monthly
rate of P5,000 and P6,000 respectively.

2) [Petitioner's] counterclaim is hereby dismissed for lack of merit."7

On the other hand, the Decision8 of the Metropolitan Trial Court (MTC)9 of Manila (Branch 5), which was
"affirmed with modification" by the RTC, dismissed respondent's complaint for unlawful detainer against the
petitioner.

The Facts

The CA summarized the facts in this manner:

"The Roman Catholic Archbishop of Manila (RCAM) is the owner of an apartment unit originally leased to Mr.
Fernando Lopez Lim. After the demise of Mr. Fernando Lim, [his] children became the occupants thereof.
One of [them, Valentine Lim] requested respondent Encarnacion Ticson, for financial assistance [in order] to
purchase the apartment unit from RCAM. In exchange, Valentine Lim executed a waiver in favor of
respondent.

"On June 15, 1996, respondent executed a contract of lease [in favor of petitioner], on the basis of the
waiver from Valentine Lim respecting the apartment unit, for a period of three (3) months. After signing the
contract and paying the rentals, [petitioner] discovered that the apartment was actually owned by RCAM.

"Meanwhile, after the expiration of the three (3) month lease, respondent demanded petitioner to vacate the
premises for the use of the former's family members. Petitioner failed to comply, giving rise to the instant
case for unlawful detainer.

"After trial, the Metropolitan Trial Court (MTC) found respondent guilty of concealment [amounting to] fraud
when she misrepresented that she was the owner or authorized lessor of the apartment. Consequently, the
contract did not produce any legal effect, much less, rights or obligations. Thus, the MTC ordered the
dismissal of the complaint for unlawful detainer.

"Unsatisfied therewith, respondent appealed the dismissal with the Regional Trial Court (RTC). After review
thereof, the RTC found that the concealment did not amount to fraud, but [was merely due] to respondent's
honest belief that she became or will eventually become the owner of the property by reason of the said
waiver.

"Moreover, the RTC found that 'if [petitioner] has indeed questioned the [respondent's] title, she should
have communicated with RCAM immediately since she came to know of RCAM's ownership over the subject
property early on.'

"On the basis thereof, the RTC ordered petitioner to pay respondent P86,000.00 as rental arrearages from
September 1996 to June 1997 and from July 1997 to December 1997 at a monthly rate of P5,000.00 and
P6,000.00 respectively, and dismissed petitioner's counterclaim for lack of merit."10

Meanwhile, on March 3, 1998, petitioner entered into a Contract of Lease11 over the same property with
RCAM for a term of one year, commencing from January 1, 1998 to December 31, 1998. In that Contract,
petitioner assumed to pay the rent corresponding to her use and occupation of the property prior to its
execution; that is, from June 1, 1996 to December 31, 1997.

Ruling of the Court of Appeals

The CA agreed with the RTC that the misrepresentation of respondent as the owner or lessor of the property
did not amount to fraud, but was merely an error under Article 1343 of the Civil Code. The appellate court
added that she must have acquired legal possession over the apartment unit as an assignee thereof,
considering the waiver/assignment executed in her favor by the previous lessees.

The appellate court added that petitioner herself had been negligent in not immediately communicating with
the owner of the property - - the Roman Catholic Archbishop of Manila (RCAM) - - regarding her discovery,
thereby implying her acknowledgment of respondent's right to sublease the property.

Consequently, while holding that, "as found by the lower court, RCAM and petitioner entered into a new
Contract of Lease that rendered the instant case moot and academic," the CA ordered petitioner to pay
rental arrearages to respondent for the period September 1996 to December 1997.

Hence, this Petition.12

Issue

The lone issue presented for our consideration is as follows:

"Whether or not petitioner should be held liable to pay respondent the amount of P86,000.00 representing
the alleged rental arrearages from September 1996 to December 1997."13
 The Court's Ruling

The Petition has merit.

Lone Issue:

Entitlement to Rental Arrearages

Petitioner contends that she is not bound by her lease agreement with respondent, because the latter never
acquired legal possession of the property. The assignment/waiver of rights executed by Valentine Lim was
null and void, as the lease of her father (Fernando) with RCAM had long been terminated for nonpayment of
rentals. With the invalidity of the assignment, respondent acquired no rights that she could transmit.
Assuming arguendo that Valentine's lease was still subsisting, petitioner argues that the consent of RCAM
should have been obtained.

Petitioner further avers that under her Contract with RCAM, she undertook to pay rentals corresponding to
the holdover period. Hence, she would in effect be paying the rental twice, if she were still to pay
respondent. The latter would be unjustly enriched at petitioner's expense, which should not be allowed by
the Court.

The assignment of a lease by the lessee involves a transfer of rights and obligations pertaining to the
contract; hence, the consent of the lessor is necessary.14 Article 1649 of the Civil Code is explicit:

"Art. 1649. The lessee cannot assign the lease without the consent of the lessor, unless there is a stipulation
to the contrary."

The objective of the law in prohibiting the assignment of the lease without the lessor's consent is to protect
the owner or lessor of the leased property.15 In the case of cession or assignment of lease rights on real
property, there is a novation by the substitution of the person of one of the parties - - the lessee.16 The
personality of the lessee, who dissociates from the lease, disappears; only two persons remain in the
juridical relation - - the lessor and the assignee who is converted into the new lessee.17

In the instant case, RCAM never assented to the assignment of the lease. This is apparent from the
December 11, 1997 letter18 of its counsel, Atty. Socrates R. Rivera, stating that Fernando Lim was no longer
its tenant for his failure to pay the rentals as of August 1988. As a rule, this letter may not necessarily result
in the cessation of Mr. Fernando's right to possess the leased premises. Under the law, mere nonpayment of
rentals without the lessor's demand to pay and vacate is not sufficient to oust the lessee from the leased
premises.19 The letter, however, demonstrates the lessor's lack of consent to the assignment.

There is no evidence to show that RCAM subsequently agreed to the substitution of the original lessee by
respondent. In fact, the only lessee it ever recognized was Fernando Lim. In the same letter, it was stated
that "neither [petitioner] nor [respondent] have the right to [possess] said apartment considering that it
[was] Mr. Fernando Lopez Lim whom our client RCAM ha[d] contractual relationship; unfortunately said
tenant [has ceased] to be such."

Neither does respondent appear to have paid monthly rents to RCAM to apprise it sufficiently of her
occupation of the subject premises. Hence, it cannot be charged with knowledge of, much less implied
consent to, this fact.

As against RCAM, which has not consented to the assignment, respondent-assignee obtains no rights to the
leased premises. Consequently, the sublease between her and petitioner is not binding on it. With the
abandonment of the lease by the original lessee through his unauthorized assignment, the right to the
possession of the apartment reverted to the owner. Being the owner, RCAM enjoys the prerogative to enter
into a new lease contract over the property with anyone it chooses.20 Unfortunately for respondent, it chose
to grant to petitioner leasehold rights to the subject premises by virtue of the Contract entered into on
March 3, 1998. It was agreed thereunder that petitioner would pay RCAM reasonable compensation for the
entire period of her occupancy of the property.
To allow respondent to receive from petitioner rental arrearages for the period September 1996 to
December 1997, notwithstanding the latter's agreement with the owner to pay rent for her occupancy of the
property, would constitute unjust enrichment at the expense of petitioner. Under Article 22 of the Civil Code,
there is unjust enrichment when (1) a person is unjustly benefited, and (2) such benefit is derived at the
expense of or with damages to another.21

Prior to the March 3, 1998 Contract, petitioner and respondent were technically "strangers" to the property;
both were unlawfully withholding its possession from the owner. Petitioner cannot therefore be faulted in
assuming to pay a reasonable value for her occupancy of the property as a sign of good faith. On the other
hand, nonpayment of rentals of respondent to RCAM - - notwithstanding her receipt from petitioner of the
rental covering the term of the sublease contract - - is indicative of bad faith.

Having assumed to pay the rentals to RCAM, petitioner should no longer be required to pay rental
arrearages to respondent. To do so would be to sanction unjust enrichment in favor of respondent and to
cause unjust poverty to the petitioner. A double burden would be imposed upon the latter, because she
would be paying twice for her use of the same premises for the same period of time.

We are not unmindful of the standing rule that a lessee is estopped or prevented from disputing the title of
the landlord in an action for recovery of possession of the leased premises.22

In Geminiano v. Court of Appeals,23 we stated:

"x x x. The private respondents, as lessees who had undisturbed possession for the entire term under the
lease, are then estopped to deny their landlord's title, or to assert a better title not only in themselves, but
also in some third person while they remain in possession of the leased premises and until they surrender
possession to the landlord. This estoppel applies even though the lessor had no title at the time the relation
of lessor and lessee was created, and may be asserted not only by the original lessor, but also by those who
succeed to his title."24

Indeed, the relation of lessor and lessee does not depend on the former's title but on the agreement
between the parties, followed by the possession of the premises by the lessee under such agreement.25 As
long as the latter remains in undisturbed possession, it is immaterial whether the lessor has a valid title - -
or any title at all - - at the time the relationship was entered into.26 Between the present parties, the lease -
- which was actually a sublease - - was effective. And respondent had a colorable right to lease the premises
by virtue of the assignment even if, as against the owner, both the assignment and the sublease were
ineffectual.

However, considering the peculiar circumstances availing in the present case, equity demands that such rule
be relaxed. As discussed earlier, it would be grossly unjust if, after having paid the owner prior rentals for
June 1996 to December 1997, petitioner would still be required to pay again the same rental arrearages to
respondent for the latter's retention of the property after the termination of sublease contract. Note that the
sublease had already expired, and that the arrearages refer to a subsequent period not covered by the said
sublease.

It is worth reminding everyone of our pronouncement in Air Manila v. CIR:27 "Equity as the complement of
legal jurisdiction seeks to reach and to complete justice where courts of law, through the inflexibility of their
rules and want of power to adapt their judgments to the special circumstances of cases, are incompetent to
do so. Equity regards the spirit and not the letter, the intent and not the form, the substance rather than the
circumstance, as it is variously expressed by different courts."

WHEREFORE, the Petition is GRANTED and the assailed Decision and Resolution SET ASIDE. The dispositive
portion of the August 14, 1998 Decision of the Metropolitan Trial Court of Manila is hereby REINSTATED. No
costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 173824             August 28, 2008

PETER TARAPEN y CHONGOY, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

CHICO-NAZARIO, J.:

Assailed before Us is the Decision1 of the Court of Appeals in CA-G.R. CR No. 26636, dated 31 January
2006, which affirmed with modification the Decision2 of the Regional Trial Court (RTC) of Baguio City,
Branch 3, convicting petitioner Peter Chongoy Tarapen of the crime of Homicide.

On 9 June 2000, petitioner was charged before the RTC of Baguio City with Frustrated Homicide for
attacking and assaulting James Lacbao Pangoden.3 The day after, the victim died from the injuries he
sustained. As a consequence, an amended information was filed on 13 June 2000 charging petitioner
with Homicide allegedly committed as follows:

That on or about the 8th day of June, 2000, in the City of Baguio, Philippines, and within the
jurisdiction of the Honorable Court, the above-named accused, with intent to kill, did then and
there willfully, unlawfully and feloniously attack, and assault JAMES LACBAO PANGODEN, by
hitting his head twice with a steel shovel, thereby inflicting upon the latter: Cardio-respiratory
arrest secondary to cranio-cerebral injury, which directly caused his death.4

The case was raffled to Branch 3. When arraigned on 15 June 2000, petitioner, with the assistance of
counsel de oficio, pleaded not guilty to the crime charged.5

On 10 October 2000, the pre-trial conference of the case was terminated with the trial court issuing its
pre-trial order.6

The prosecution presented the following witnesses, namely: (1) Patricia S. Pangoden7; (2) Molly J.
Linglingen8; (3) Silmana Linglingen9; (4) Virginia Costales10; (5) Dr. Lindo Mensalvas11; (6) Dr. Rizal Leo
Cala12; and (7) Senior Police Officer (SPO) 2 Juanito Meneses II.13

The collective testimonies of the witnesses revealed:

At around 7:00 to 7:30 in the morning of 8 June 2000, a dump truck driven by Jimmy Pugoy arrived at
Zandueta St., Baguio City, to collect garbage. He was accompanied by petitioner and Edmond Ferrer.
The garbage truck came from lower Zandueta St. and proceeded to upper Zandueta St. Upon reaching
the Hilltop Market, the truck turned around. During this time, vendors, including the victim James
Pangoden, Molly J. Linglingen, Silmana Linglingen and Virginia Costales were peddling their wares along
said street. Petitioner alighted from the truck and signaled to the driver to move slowly. Despite guiding
the truck, said vehicle ran over the eggplants being sold by Virginia Costales. Petitioner picked up the
vegetables and threw them towards the place where James was. This angered James because the
flowers he was selling were soiled. An exchange of words ensued between petitioner and
James.14 Petitioner went to the back of the dump truck and got a shovel. He then moved in front of the
truck where James was. While James was facing downwards, petitioner, coming from behind and holding
the shovel with two hands, struck James on the head with the same, causing him to fall to the ground in a
squatting position. As soon as James raised his head, petitioner hit the former’s head again with the
shovel.15 Petitioner then ran away. James was brought to the Baguio General Hospital & Medical Center
(BGHMC) in a taxi.

The wife of James, Patricia Pangoden, arrived at the BGHMC and saw her husband in the Emergency
Room. Dr. Rizal Leo Cala refused to operate on her husband, saying that it was already hopeless. She
then requested for the transfer of her husband to the Saint Louis University (SLU) Hospital. The request
was approved, and her husband was transferred to SLU Hospital at 1:30 p.m. James was operated on,
and Patricia was told that her husband had no more chance to live. She was advised to bring home
James; otherwise, they would just be spending so much. Patricia brought her husband to his hometown in
Namatugan, Sudipen, La Union, where he expired on 10 June 2000.16

Patricia S. Pangoden testified on the events that happened to her husband from the time he was bought
to the hospital until the time he died. She also testified on the expenses she incurred as a result of the
incident.17

Molly J. Linglingen and Silmana Linglingen, mother and daughter, and co-vendors of James at Zandueta
St., testified that they saw petitioner get a shovel from the rear of the garbage truck, approach James
from behind, and hit him with it twice on the head.

Virginia Costales recounted the events prior to her seeing James already slumped on the ground. She
narrated that when the garbage truck was going down Zandueta St., petitioner got off from the truck and
guided it. The truck ran over the eggplants she was selling. Petitioner picked them up and threw them to
where James was. James, she said, got angry because the flowers he was selling were soiled. Petitioner
and James exchanged words. While the two were exchanging words, she transferred her sack of
eggplants to a nearby place. It was then that she heard people shouting. When she turned around, she
saw James already slumped on the ground oozing with blood.

Dr. Lindo Mensalvas and Dr. Rizal Leo Cala, physicians at the SLU Hospital and BGHMC, respectively,
attended to the victim. They respectively issued a medico-legal certificate containing the injuries
sustained by the victim.18

SPO2 Juanito Meneses II, assigned at Police Community Precinct 1, Baguio City, was the investigator to
whom the case of petitioner was turned over. At around 10:00 a.m. of 8 June 2000, the Division Chief of
the General Services Office of Baguio City turned the petitioner over to him. SPO2 Meneses disclosed
that petitioner admitted to having inflicted injuries on the victim. The police officer disclosed that he did not
notice any injury on Peter’s body or face. He added that Peter did not request any medical treatment that
morning. He brought Peter to the BGHMC for possible identification, but the victim was still unconscious.
Upon going back to the police station, he took the statement of the victim’s wife. He likewise identified the
steel shovel19 allegedly used in killing the victim.

The prosecution formally offered Exhibits "A" to "H," inclusive, with sub-markings which the trial court
admitted.20

For the defense, the following took the witness stand: (1) Jimmy Pugoy,21 (2) petitioner Peter
Tarapen,22 (3) Edmond Ferrer,23 and (4) Dr. Maryjane Tipayno.24

The version of the defense as culled from these witnesses is as follows:

Jimmy Pugoy, petitioner Peter Tarapen and Edmond Ferrer are garbage collectors employed by the
General Services Office of the City of Baguio. At around 3:00 a.m. of 8 June 2000, they started collecting
garbage. At around 7:00 a.m., they arrived at Zandueta St. Half of said street was almost occupied by
vendors who were selling various goods. In order to collect garbage piled on said street, the truck driven
by Jimmy Pugoy had to go up the street then go down. While going down the street, Pugoy kept on
honking the truck’s horn, causing the vendors selling near the garbage pile to move away, but some of
their goods were left behind. Ferrer alighted and started filling up the garbage basket with the use of a
shovel. Peter saw a sack of eggplants pinned under the truck being removed by its owner. Peter helped
the old woman carry the sack to the side of the road when, all of a sudden, James punched him hard on
the right ear, causing him to fall and roll down the street. Peter ended up sitting on the ground. As he was
getting up with his hands raised, James punched him again. Peter protested, saying he did not do
anything wrong. James answered: "You people from the government are show-off[s]." Peter, still dizzy
while getting up and still with hands raised, was kicked by James on the left side of the body. Peter fell on
the road and rolled anew.25 Feeling very dizzy, Peter tried to pick up something to throw at James to stop
him, because he (Peter) thought James would kill him. At this moment, Edmond was coming to the aid of
Peter, who was in front of the truck. Edmond carried with him the shovel he used to collect garbage.
Edmond tried to help Peter stand. He put down the shovel on the ground. While in a sitting position, Peter
was able to get hold of the shovel and swing it, hitting James who was approaching him and about to
strike with a clenched fist. With the help of the shovel, Peter stood up and tried to leave. When James
followed Peter, the latter hit him again with the shovel. Peter saw James boarding a taxi. After feeling a
little better, Peter walked to his office and reported the matter to his supervisor.

Peter, accompanied by his supervisor, voluntarily surrendered to the police authorities. Per his request,
he was brought to the hospital where he met James’s wife who hit him on the back. To avoid trouble, he
was brought to the City Jail. Upon posting bail, he went to the hospital for treatment.

Jimmy Pugoy testified on what he allegedly saw that fateful morning. He recounted that while he was
maneuvering the garbage truck he was driving at Zandueta St., he saw petitioner Peter Tarapen go down
the truck and help an old woman, who was in front of the truck, carry a sack of eggplants. At that moment,
a person (James) went near Peter and suddenly punched him on the face, causing him to fall and roll
down the street. When Peter stood up with his hands raised, James punched him again on the face,
making the latter fall and roll again. Peter stood up a second time with his hands up. This time, he said,
James delivered a flying kick, which hit Peter on the stomach. Peter fell and rolled once more. After this,
Jimmy no longer saw what happened, because the people had gathered, and he parked the truck. After
parking the vehicle, what he saw was a man lying on the ground. He went back to the office and gave a
report.

Edmond Ferrer narrated that at around 7:00 a.m. of 8 July 2000, he was with Jimmy Pugoy and Peter
Tarapen at Zandueta St. collecting garbage. He was with Peter hanging at the back of the truck. When
the vehicle stopped, Peter alighted and went in front of the vehicle. Jimmy also went down, taking with
him the shovel and the garbage basket. While Peter was settling some things in front, he placed the
garbage inside the basket. After filling up the basket and before he could load it into the truck, he heard
people shouting in front of the vehicle. As there was a commotion, he proceeded to the front of the vehicle
carrying the shovel he was using. He saw Peter sitting on the ground shaking his head. He went near
Peter, put down the shovel and tried to help him stand up. A person approached and was about to hit
Peter, when the latter got hold of the shovel, swung it and hit this person. The person remained standing.
Peter was able to stand and was turning around to leave, but the person whom he hit with the shovel was
about to follow him in order to punch him. Peter hit this person one more time, causing the latter to fall
down. Seeing Peter leave, he also left.

Petitioner testified that at the time the incident subject of this case happened, he was in Zandueta St. to
collect garbage. He was riding the garbage truck driven by Jimmy Pugoy. Since the driver was
continuously blowing the horn of the vehicle, he went down the truck and saw a sack of eggplants under
the vehicle. The owner of the sack of eggplants approached him and asked him to help her. He helped
the old woman remove the sack under the truck and carry it to the side of the road. After that, he said
someone (James) punched him at the right side of the head, which caused him to fall and sit on the road.
As he was getting up with his hands raised, James said, "Nalastog kayo nga taga-gobierno," and then
punched him for the second time. He was a little dizzy and was again getting up when he was kicked on
the left side of his body. Feeling very dizzy, he tried to pick up something to throw at James. While sitting,
he got hold of a shovel which he swung, hitting James. Peter said he got up to run away, but James
followed him. It was then that Peter hit him again with the shovel. He went to their office and he was
accompanied by his supervisor in surrendering to the police. He added that he asked the policemen to
bring him to the hospital, because his ear was aching. It was on 16 July 2000 that he was able to have a
medical examination of his ears.

Dr. Maryjane Tipayno, physician at the BGHMC, testified that she performed an audio logic test on
petitioner on 16 June 2000. She found out that petitioner had mild hearing loss on the left ear and severe
hearing loss on the right ear.26 She said that the hearing condition of petitioner could not have been self-
inflicted. She explained that the hearing loss in both ears could have started years before. She added that
it was Dr. Vinluan who interviewed the petitioner, and that it was petitioner who told him that the hearing
loss in his right ear was due to a blunt trauma.

After formally offering Exhibits "1" and "2" and with the admission thereof by the trial court, the defense
rested its case.27

As rebuttal witnesses, the prosecution presented Molly Linglingen, who said that petitioner was standing
up when he hit James twice on the head with a shovel. He explained that James was standing with his
back turned, when Peter came from behind and hit him.28

On 20 June 2002, the trial court convicted petitioner of Homicide in a decision the dispositive portion of
which reads:

WHEREFORE, the Court finds accused Peter Tarapen GUILTY beyond reasonable doubt for the
crime of Homicide and he is hereby sentenced to suffer the penalty of imprisonment at the
National Penitentiary, Muntinlupa City from Fourteen (14) Years as Minimum to Twenty (20)
Years as Maximum. Peter Tarapen shall also indemnify private complainant Patricia Pangoden
the following amounts: One Hundred Ninety Five Thousand Eighty Pesos and 05/100
(P195,080.05), representing the expenses for hospitalization, funeral and burial; Moral Damages
to Patricia Pangoden in the amount of Three Hundred Thousand Pesos (P300,000.00) and Death
Indemnity of Fifty Thousand Pesos (P50,000.00), and Loss of Earning Capacity in the amount of
Three Million One Hundred Thirty Five Thousand Seven Hundred Twenty Pesos (P3,680,800.05),
plus costs of suit against the accused.29

The trial court gave credence to the testimonies of the prosecution witnesses Molly J. Linglingen, Silmana
Linglingen and Virginia Costales as against the testimonies of defense witnesses Jimmy Pugoy, petitioner
Peter Tarapen and Edmond Ferrer. The trial court found the prosecution’s version of the incident credible.
The trial court said Virginia Costales saw the first part of the incident, which was the heated argument
between petitioner and the victim involving the victim’s soiled goods, while Molly J. Linglingen and
Silmana Linglingen witnessed the second part of the incident when petitioner went to the back portion of
the garbage truck and got a shovel with which he hit the victim from the back, twice on the head, resulting
in his death. Having had the opportunity to observe them, it was convinced that they were telling the truth
vis-à-vis the defense witnesses who were lying, as can be seen from their hesitant answers and evasive
looks when they testified for the petitioner who was a co-employee.

The trial court likewise did not appreciate self-defense in favor of petitioner, who struck the unarmed
victim from the back, twice on the head.

On 8 July 2002, petitioner filed a Motion for Reconsideration,30 which the trial court denied on 16 July
2002.31 On 23 July 2002, petitioner filed a Notice of Appeal.32 In an Order33 dated 29 July 2002, the trial
court, finding the notice of appeal to have been seasonably filed, forwarded the records of the case to the
Court of Appeals.
On 31 January 2006, the Court of Appeals rendered a decision, affirming with modification the decision of
the trial court convicting petitioner Peter Chongoy Tarapen of the crime of Homicide, the decretal portion
reading:

WHEREFORE, in view of all the foregoing, the decision dated June 20, 2002 of Branch 3 of the
Regional trial Court of Baguio City in Criminal Case No. 17792-R finding accused-appellant Peter
Tarapen y Chongoy guilty beyond reasonable doubt of the crime of homicide is AFFIRMED with
modification. Accused-appellant is sentenced to suffer the penalty of eight (8) years of prision
mayor, AS MINIMUM, to fourteen (14) years of reclusion temporal, AS MAXIMUM,
and ordered to pay the heirs of the victim James Lacbao Pangoden the following
amounts: P51,549.25 in actual damages, P50,000.00 as moral damages, P50,000.00 as civil
indemnity and the sum of P1,960,200.00 representing lost earnings.34

On 8 March 2006, petitioner filed a Motion for Reconsideration,35 on which the Office of the Solicitor
General (OSG) filed its Comment.36 On 6 July 2006, the Court of Appeals denied said motion.37

On 31 August 2006, petitioner, via registered mail, filed a petition for review with this Court, seeking the
reversal of the decision of the Court of Appeals.38

In our Resolution39 dated 2 October 2006, respondent People of the Philippines, through the OSG, was
required to file its Comment on the petition. After three motions for extension to file comment on the
petition, which were granted by this Court, the OSG filed its Comment on 5 February 2007.40 On 12 March
2007, petitioner was required to file a Reply to the Comment, which he did on 11 December 2007.41

On 18 February 2008, the Court resolved to give due course to the petition for review on certiorari and
required the parties to submit their respective memoranda within thirty (30) days from notice. Petitioner
and respondent filed their respective memoranda on 2 May 2008 and 10 April 2008.42

Petitioner assails his conviction, arguing that both trial courts:

I. Erred in giving credence to the prosecution witnesses, despite the grave inconsistencies in their
testimonies and not considering the testimonies of the witnesses for the defense showing
manifest bias against the accused.

II. Erred in not acquitting the accused when the defense had sufficiently proved the existence of
facts proving that indeed the accused was defending himself from James Pangoden.

III. Erred in not acquitting the accused based on reasonable doubt.43

On the first assigned error, petitioner contends that the testimonies of Molly and Silmana Linglingen that
there was no prior quarrel or exchange of words between petitioner and James before the former hit the
latter with a shovel, are contrary to human experience, because petitioner could not have taken the life of
James, whom he did not personally know, for no reason at all.

This contention is untenable.

A review of the testimonies of both Molly and Silmana Linglingen shows they never said that petitioner
and the victim did not have any prior quarrel or exchange of words before Peter hit James with the shovel.
What they said was that they never witnessed any quarrel or exchange of words between Peter and
James. They, however, declared in unison that they saw petitioner get a shovel from the back of the
garbage truck and, coming from behind, twice struck James on the head with it. Both Molly and Silmana
Linglingen never witnessed the events prior to Peter’s act of getting the shovel. This void was
substantially filled up by the testimony of Virginia Costales, who actually witnessed the altercation
between the petitioner and the victim. Through the testimony of Mrs. Costales, it became clear why
petitioner got the shovel, which he used in striking James twice on the head. By combining the
testimonies of the three ladies, a picture of the incident has been wholly painted. The rage that Peter had
in him was brought about by his squabble with James. The defense cannot, therefore, claim that Peter
took the life of James for no reason at all.

Petitioner brands Molly and Silmana Linglingen as biased witnesses, thus, unreliable, because they were
town mates and co-vendors of the victim. The fact that these two witnesses were the victim’s town mates
and co-vendors did not necessarily make them biased witnesses. It is well-settled that the mere
relationship of a witness to the victim does not impair the witness’ credibility. On the contrary, a witness’
relationship to a victim of a crime would even make his or her testimony more credible, as it would be
unnatural for a relative, or a friend as in this case, who is interested in vindicating the crime, to accuse
somebody other than the real culprit.44 A witness is said to be biased when his relation to the cause or to
the parties is such that he has an incentive to exaggerate or give false color to his statements, or to
suppress or to pervert the truth, or to state what is false.45 To warrant rejection of the testimony of a
relative or friend, it must be clearly shown that, independently of the relationship, the testimony was
inherently improbable or defective, or that improper or evil motives had moved the witness to incriminate
the accused falsely.46

The friendship of Molly and Silmana Linglingen with the victim, per se, did not impair their credibility. We,
like both lower courts, are convinced that they were telling the truth. Moreover, the defense failed to show
any evidence that prosecution witnesses Molly and Silmana Linglingen had improper or evil motives to
testify falsely against petitioner. This being the case, their testimonies are entitled to full faith and credit.

The defense accuses the prosecution witnesses of deliberately suppressing material evidence favorable
to the petitioner. It thus argues that it may be safely presumed that such evidence, having been willfully
suppressed, would be adverse if produced.

We do not find any suppression of evidence by the prosecution. The defense failed to specify which
evidence was suppressed. It simply made a general statement that the prosecution witnesses allegedly
did not tell the truth and thus deliberately suppressed material evidence favorable to the petitioner. The
adverse presumption of suppression of evidence is not applicable when (1) the suppression is not willful;
(2) the evidence suppressed or withheld is merely corroborative or cumulative; (3) the evidence is at the
disposal of both parties; and (4) the suppression is an exercise of a privilege.47 In the case at bar, the
prosecution witnesses who allegedly suppressed material evidence were presented in court and were
cross-examined by the defense counsel. How then can the defense claim there was suppression? The
defense counsel was able to question these witnesses, but failed to elicit the answer he wanted or
needed to hear for the exoneration of his client.

The defense attacks the credibility of Virginia Costales by pointing out that her testimony in court, that she
did not see petitioner and the victim engage in a fistfight, contradicts her declaration in her sworn
statement that that two engaged in a fistfight.

Such inconsistency will not discredit her. It is settled that certain discrepancies between declarations
made in an affidavit and those made on the witness stand seldom could discredit the declarant. Sworn
statements, being taken ex parte, are almost always incomplete and often inaccurate for various reasons,
sometimes from partial suggestion or for want of suggestion and inquiries. They are generally inferior to
the testimony of the witness given in open court. Our case law is unequivocal in saying that the testimony
of a witness prevails over an affidavit. In short, affidavits are generally subordinated in importance to
open-court declarations; or, more bluntly stated, whenever there is inconsistency between an affidavit and
the testimony of a witness in court, the testimony commands greater weight.48 The Court has consistently
ruled that the alleged inconsistencies between the testimony of a witness in open court and his sworn
statement before the investigators are not fatal defects that would justify the reversal of a judgment of
conviction.49 In this case, when Mrs. Costales was confronted with this contradiction, she explained that
she never told the police that the petitioner and the victim had a fistfight. What she said was they had a
quarrel; that is, they faced each other and exchanged words.

The defense tries to destroy the version of Molly and Silmana Linglingen that the victim was hit from
behind by arguing that same is not corroborated by medical findings. Molly and Silmana Linglingen’s
claim that James was hit on the right side of the head was, according to the defense, negated by the
findings of Dr. Mensalvas that James suffered injuries on the "left frontoparietal and left frontotemporo
parietal" areas of his head. The findings of Dr. Mensalvas mean that James was facing Peter when hit by
the shovel contrary to the prosecution’s claim that James was hit by Peter from behind.

We do not agree.

The defense relies too much on the findings made by Dr. Lindo Mensalvas and completely omits the
findings made by Dr. Rizal Leo Cala. It must not be forgotten that the victim was brought to two hospitals
where the attending doctors issued separate medico-legal certificates. The medico-legal
certificate50 issued by Dr. Cala of the BGHMC was marked Exh. "D." The one issued by Dr. Mensalvas
was marked Exh. "C."

On the witness stand, Dr. Cala read his findings as follows:

"Skull Fracture" meaning there is a break in the skull bone, "Linear" which is a straight line
fracture, "parietal" area on the right side of the head, then we have "Epidural hematoma" it is a
blood clot at the right side of the head.51

When cross-examined, he explained his findings as follows:

q Both injuries you found were on the front parietal area?

a Yes, Sir.

q Will you please demonstrate to us?

a (Witness demonstrating by pointing to the right side of his head.)

q Doctor, while you were demonstrating, the linear fracture, is it perpendicular to the head?

a I am sorry but it was injury to the right side of the head, Sir.

q Only part of the right ear?

a Yes, sir.

q If I am facing you, it is on your?

a Right, Sir.

q Right side on your part. Did you find any injury on the left side?

a No, Sir.52
From the medico-legal certificate issued by Dr. Cala and with his testimony in court, it is clear that the
victim suffered injuries on the right side of his head. Thus, the claim of Molly and Silmana Linglingen that
the victim was struck from behind on the right side of his head is consistent with the findings of Dr. Cala.

Dr. Mensalvas, on the other hand, testified that the victim sustained four injuries, three of which were on
the left side of the head and one on the right side. The medical certificate he issued states that the victim
was confined for the following injuries:

1. ACCI; CEREBRAL CONTUSSION

2. EPIDURAL HEMATOMA, LEFT FRONTOPARIETAL AREA

3. SUTURED SCALP LACERATION, RIGHT TEMPOROPARIETAL AREA

4. SCALP CONTUSSION, LEFT FRONTOTEMPORO PARIETAL AREA WITH UNDERLYING

LINEAR FRACTURE OF THE SKULL EXTENDING FROM THE LEFT FRONTAL TO THE LEFT
TEMPORAL BONE.53

The question now is: which medical findings should this Court believe?

This Court believes in the findings made by Dr. Cala as contained in the medico-legal certificate he issued
showing that the victim suffered injuries on the right side of his head, consistent with the declarations of
prosecution witnesses that the victim was, from behind, struck with a shovel twice on the right side of the
head. We give more weight to this medical certificate, because the same was issued by a government
doctor. By actual practice, only government physicians, by virtue of their oaths as civil service officials,
are competent to examine persons and issue medical certificates which will be used by the
government.54 As such, the medical certificate carries the presumption of regularity in the performance of
his functions and duties. Moreover, under Section 44, Rule 130,55 Revised Rules of Court, entries in
official records made in the performance of official duty are prima facie evidence of the facts therein
stated. Dr. Cala’s findings that the victim sustained injuries on the right side of his head are, therefore,
conclusive in the absence of evidence proving the contrary, as in this case. We cannot consider the
contents of the medical certificate issued by Dr. Mensalvas sufficient to controvert the findings of Dr. Cala.
As held by this Court, an unverified medical certificate not issued by a government physician is
unreliable.56

Even assuming arguendo that we give more weight to the medical certificate issued by Dr. Mensalvas,
this does not mean that the testimonies of Molly and Silmana Linglingen shall be disbelieved. It is noted
that Dr. Mensalvas testified that the victim sustained a wound on the right side of his head, possibly
caused by a steel shovel.57 Such a finding is consistent with the claim of Molly and Silmana Linglingen
that the victim was hit on the right side of the head. Though there can be inconsistencies of the
testimonies of the witnesses with Dr. Mensalvas’s other findings (i.e., injuries on the left portion of the
head) this does not mean that we should totally doubt and discard the other portions of their testimonies.

Well-settled is the rule that the testimony of a witness may be believed in part and disbelieved in another,
depending on the corroborative evidence or the probabilities and improbabilities of the case. Where a part
of the testimony of a witness runs counter to the medical evidence submitted, it is within the sound
discretion of the court to determine which portions of the testimony to reject as false and which to
consider worthy of belief.58

From the two medical certificates issued, what cannot be doubted is the fact that the victim sustained
head injuries, whether on the left or the right, which caused his demise.
We find the testimonies of the prosecution eyewitnesses more credible and convincing than those of the
defense eyewitnesses. When it comes to credibility, the trial court’s assessment deserves great weight
and is even conclusive and binding, if not tainted with arbitrariness or oversight of some fact or
circumstance of weight and influence. The reason is obvious. Having the full opportunity to observe
directly the witnesses’ deportment and manner of testifying, the trial court is in a better position than the
appellate court to evaluate testimonial evidence properly.59

The Court of Appeals further affirmed the findings of the RTC. In this regard, it is settled that when the
trial court’s findings have been affirmed by the appellate court, said findings are generally conclusive and
binding upon this Court. We find no compelling reason to deviate from their findings.

Petitioner claims that the trial court judge was not able to observe the demeanor of the prosecution
witnesses, because they were looking at the court interpreter when they were testifying. We find this
untenable. The trial court judge was emphatic in saying that he had the chance to see the face of the
witness while she testified.60

On the second and third assigned errors, petitioner admits killing James but invokes self-defense. He
claims that the victim was the unlawful aggressor and that he (petitioner) did not provoke the victim.

Article 11, paragraph (1) of the Revised Penal Code, provides for the elements and/or requisites in order
that a plea of self-defense may be validly considered in absolving a person from criminal liability, viz:

ART. 11. Justifying circumstances. – The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself.

Having admitted that he killed James, the burden of evidence that one acted in self-defense shifted to
petitioner. Like an alibi, self-defense is inherently weak, for it is easy to fabricate.61 It is textbook doctrine
that when self-defense is invoked, the burden of evidence shifts to the accused to show that the killing
was justified, and that he incurred no criminal liability therefor. He must rely on the strength of his own
evidence and not on the weakness of the prosecution’s evidence, for, even if the latter were weak, it could
not be disbelieved after his open admission of responsibility for the killing. Hence, he must prove the
essential requisites of self-defense as aforementioned.62

Unlawful aggression is a condition sine qua non for the justifying circumstance of self-defense, whether
complete or incomplete.63 Unlawful aggression presupposes an actual, sudden, and unexpected attack, or
imminent danger thereof, and not merely a threatening or intimidating attitude.64 There must be actual
physical force or a threat to inflict physical injury. In case of a threat, it must be offensive and positively
strong so as to display a real, not imagined, intent to cause injury.65

We agree with the Court of Appeals that petitioner failed to clearly and convincingly prove self-defense,
whether complete or incomplete.

We confirm the observation of the trial court. A circumspect scrutiny of accused-appellant’s

version of what happened likewise leaves this Court unconvinced that he killed the victim James
Pangoden in self-defense.
First, accused-appellant’s claim that the victim James Pangoden, suddenly and without
provocation, boxed him on his right ear is simply unbelievable. By his own account, he (accused-
appellant) was at that moment helping a road vendor carry her sack of eggplants away from the
path of the truck. If this is true, then his testimony that James Pangoden attacked and boxed him
for no reason at all loses credibility. Testimonies to be believed must not only come from the
mouth of credible witnesses but should by themselves be credible, reasonable, and in accord with
human experience.

Second, it is likewise inconceivable how accused-appellant could have hit the victim James
Pangoden twice in the head while he (accused-appellant) was allegedly in a sitting position and
holding the shovel by the middle part of its shaft. Interestingly also, while accused-appellant and
his witness testified that he was in a "sitting" position when he hit James Pangoden with the
shovel, accused-appellant portrayed a different account when asked during cross-examination to
demonstrate how he hit the victim, viz:

Q: Now, how did you hit Pangoden with the shovel, demonstrate it to the Court. All right you can
step down from the witness stand (Witness demonstrating.)

For the record, witness was in a kneeling position when he got the shovel.

A: I was down on the ground, and I was groping (sic) to somebody and I was able to get hold of
the shovel, that was the time I swang (sic) it towards him.

Q: You have not demonstrated how you hit Pangoden with the shovel?

For the record, witness is in a kneeling position when he allegedly picked up the shovel holding it
in the middle part. With his two hands and swang (sic) it upwards towards his left.

For the record, accused held the shovel on the middle part of the shaft, your Honor, not on the
handle.

Third, it simply goes against the grain of human experience for the victim James Pangoden to
persist in his attack against accused-appellant after getting hit in the head with a steel shovel,
considering that he is unarmed and had nothing to match accused-appellant’s weapon on hand.
That James Pangoden still had the resolution and power for a second assault on accused-
appellant, after getting hit with a steel shovel in the head, flouts ordinary human capacity and
nature. In contrast, accused-appellant would claim that he "fell down" and "felt dizzy" after getting
boxed on the right side of his head by James Pangoden with his bare fist.

Fourth, accused-appellant himself admitted walking away from the crime scene immediately after
the incident. As we see it, this actuation on his part is contrary to his assertion of self-defense.
Flight strongly indicates a guilty mind and betrays the existence of a guilty conscience, for a
righteous individual will not cower in fear and unabashedly admit the killing at the earliest possible
opportunity if he were morally justified in doing so.

Finally, the nature and number of the fatal injuries inflicted upon James Pangoden negate
accused-appellant’s claim of self-defense. Said victim suffered cerebral contusion, epidural
hematoma, scalp laceration and skull fracture, which directly caused his death. If accused-
appellant hit the victim just to defend himself, it certainly defies reason why he had to aim for the
head and do it twice. Indeed, the nature, number and location of the wounds sustained by the
victim belie the assertion of self-defense since the gravity of said wounds is indicative of a
determined effort to kill and not just to defend.
 xxxx

But even assuming arguendo that accused-appellant was able to establish the element of
unlawful aggression, still, this Court will rule out self-defense.

It is undisputed that James Pangoden was unarmed while accused-appellant was armed with a
steel shovel. There was no reasonable necessity for accused-appellant to use a steel shovel to
repel the attack of an unarmed man. Moreover, the eyewitnesses’ account of how accused-
appellant uncaringly threw the soiled eggplants towards the direction of James Pangoden’s goods
would negate the absence of sufficient provocation on the part of accused-appellant. Thus, the
second and third requisites for self-defense to be successfully invoked, namely, reasonable
necessity of the means employed to repel the attack and lack of sufficient provocation on the part
of the accused, are not present in this case.66

We now go to the imposition of the penalty. We agree with the Court of Appeals when it appreciated in
favor of the petitioner the mitigating circumstance of voluntary surrender. It was established that a few
hours after the incident, petitioner submitted himself to his supervisors, who, in turn, surrendered him to
the police authorities.

Petitioner is guilty of Homicide for having killed James Pangoden. The penalty for homicide under Article
249 of the Revised Penal Code is reclusion temporal. However, considering that there is one mitigating
circumstance and no aggravating circumstance in the commission of the crime, the imposable penalty,
following Article 64(2) of the Revised Penal Code, is reclusion temporal in its minimum period or within
the range of twelve (12) years and one (1) day to fourteen (14) years and eight (8) months. Applying the
Indeterminate Sentence Law, the maximum penalty to be imposed shall be taken from the minimum
period of reclusion temporal, while the minimum shall be taken from within the range of the penalty next
lower in degree, which is prision mayor or from six (6) years and one (1) day to twelve (12) years.

The Court of Appeals sentenced petitioner to suffer the penalty of eight (8) years of prision mayor, as
minimum, to fourteen (14) years of reclusion temporal, as maximum. We find this to be in order.

With respect to award of damages, the trial court awarded to the heirs of the victim the following
amounts: P195,080.05 as actual damages; P300,000.00 as moral damages; P50,000.00 as death
indemnity; and P3,135,720.00 for loss of earning capacity.

The Court of Appeals, except for the award of death indemnity, reduced the awards given by the trial
court as follows: P51,549.25 as actual damages; P50,000.00 as moral damages and P1,960,200.00 for
lost income.

When death occurs due to a crime, the following damages may be awarded: (1) civil indemnity ex delicto
for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary
damages; and (5) temperate damages.67

Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than the
commission of the crime.68 Under prevailing jurisprudence,69 the award of P50,000.00 to the heirs of the
victim as civil indemnity is in order.70

As to actual damages, the heirs of the victim are entitled thereto, because said damages amounting
to P51,549.25 were duly proved by receipts. It is necessary for a party seeking actual damages to
produce competent proof or the best evidence obtainable, such as receipts, to justify an award therefor.71
Moral damages must also be awarded because these are mandatory in cases of murder and homicide,
without need of allegation and proof other than the death of the victim.72 The award of P50,000.00 as
moral damages is in order.

The award of P25,000.00 as temperate damages in homicide or murder cases is proper when no
evidence of burial and funeral expenses is presented in the trial court.73 Under Article 2224 of the Civil
Code, temperate damages may be recovered, as it cannot be denied that the heirs of the victim suffered
pecuniary loss, although the exact amount was not proved.74 In the case on hand, temperate damages
cannot be awarded, because evidence of expenses for burial and funeral has been presented for which
actual damages have been awarded.

As regards exemplary damages, Article 2230 of the Civil Code allows the award thereof as part of the civil
liability when the crime was committed with one or more aggravating circumstances.75 There being no
aggravating circumstance that accompanied the commission of the crime, exemplary damages cannot be
awarded.

The computation of the Court of Appeals with respect to lost earning capacity is correct. At the time of his
death, the victim was 31 years old. His gross annual income was P120,000.00 because he was
earning P10,000.00 monthly. Living expenses are estimated at 50% of the gross annual income. Loss of
earning capacity is computed by applying the following formula:76

Net Earning = life expectancy x [Gross – living expenses

Capacity [2/3(80-age at death)] Annual (50% of GAI)]
Income (GAI)
= [2/3(80-31)] x [(GAI) – (50% of GAI)]

= 2 (49)     x [P120,000 – P60,000]

   3
= [98/3] x [P60,000]

= [32.67] x [P60,000]

Net Earning = P1,960,200.00

Capacity of the
victim

WHEREFORE, all the foregoing considered, the decision of the Court of Appeals in CA-G.R. CR No.
26636, dated 31 January 2006, is AFFIRMED in toto. Costs against the petitioner.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
 SECOND DIVISION

G.R. No. 106025 February 9, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CARLOS DE GUZMAN y PANALIGAN, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

PUNO, J.:

Accused-appellant has been in the watch list of the police authorities as a prohibited drug peddler.
On two (2) occasions, they tried to entrap him without any success. The third time, however, his luck
ran out.

The third attempt happened on September 23, 1991. PO3 Arnaldo Manzon and Patrolman Eduardo
Chiapoco of the Western Police District (WPD) decided to conduct the buy-bust operation against
the accused-appellant along Coral and R. A. Reyes Streets, Tondo, Manila. Manzon acted as the
poseur-buyer, with Chiapoco as the apprehending officer. 1

The buy-bust operation was conducted at seven thirty (7:30) in the evening. Pat. Manzon posed as a
Metro Manila aide. Together with a confidential informant, he casually approached accused de
Guzman and asked if he could "score" (buy) a deck of "shabu." Accused de Guzman informed him
that a deck would cost fifty pesos (P50.00). Manzon then handed the accused a previously marked
P50.00 bill (Exhibit "D"). In exchange, the accused gave him an aluminum foil containing crystalline
granules. Manzon scrutinized the contents of the foil and then executed the pre-arranged signal to
his companion, Patrolman Chiapoco. The accused was forthwith arrested by Pat. Chiapoco. The
accused was frisked and the search yielded four (4) aluminum, foils containing white crystalline
granules.  They escorted the accused to the WPD Narcotics Office and was turned over to
2

Investigator Pat. Vicente Rodriguez. The latter, in turn, marked the seized articles and requested for
its chemical analysis by the WPD Criminal Investigation Laboratory Division.  Accordingly, Patrolmen
3

Manzon and Chiapoco executed a Joint Affidavit of Apprehension (Exhibit "E") relating in detail the
events leading to the arrest of de Guzman.  The chemical analysis report (Exhibit "C") confirmed that
4

the five (5) aluminum foils contained methylamphetamine hydrochloride. 5

Consequently, an Information was filed against Carlos de Guzman y Panaligan for violation of
Section 15, Article III of Republic Act 6425, as amended. It reads:

That on or about September 23, 1991, in the City of Manila, Philippines, the said
accused, not being authorized by law to sell, dispense, deliver, transport and
distribute any regulated drug, did then and there willfully, unlawfully and knowingly
sell or offer for sale one (1) deck of aluminum foil containing METHAMPHETAMINE
HCl (shabu), which is a regulated drug.
 Contrary to law. 6

After the prosecution rested its case, the defense presented its own version of the incident. The
accused claimed that he, together with his three-year old son, went to his mother's house located at
#770 Coral Street, Tondo, Manila, to ask for food. On the way, he passed by and talked for a while
with their barangay chairman, Manolito Cabigting. Thereafter, accused proceeded to his mother's
house. While waiting outside her mother's carinderia, accused claimed that, for no apparent reason,
he was suddenly apprehended by some police officers and brought by force to the police precinct.
He was subsequently charged with illegal sale of "shabu."  In the meantime, Cabigting went up to his
7

house. Intending to take a bath, he got a towel and a change of clothes. Suddenly, he heard a
commotion outside the street. When he looked out of the window, he saw the accused inside a
tricycle escorted by police authorities. Later, he found out from the people outside that the accused
was apprehended for drug-pushing. 8

After trial, the Regional Trial Court of Manila, Branch 16,  rendered a decision finding the accused,
9

Carlos de Guzman y Panaligan, guilty beyond reasonable doubt of the crime of unlawfully selling
methamphetamine hydrochloride or "shabu," in violation of Section 15, Article III of Republic
Act 6425, as amended, and sentenced him to suffer the penalty of life imprisonment, to pay a fine of
twenty thousand pesos (P20,000.00) and to pay the cost.

Hence this appeal.

Accused-appellant contends:

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN UPHOLDING THE CREDIBILITY OF

THE POLICEMEN WITNESSES FOR THE PROSECUTION AND IN
CONVICTING THE ACCUSED ON THE BASIS THEREOF.

Accused-appellant faults the trial court for favoring the arresting officers with the disputable
presumption of regularity in the performance of their
official duty. He urges that this presumption no longer subsist for certain irregularities were
committed by the two officers in the discharge of their duty, i.e., (1) Chiapoco did not read the Joint
Affidavit of Apprehension before signing it; and (2) the police bungled its two (2) previous operations
against him.

A disputable presumption has been as a species of evidence that may be accepted and acted on
where there is no other evidence to uphold the contention for which it stands, or one which may be
overcome by other evidence.   One such disputable/rebuttable presumption is that an official act or
10

duty has been regularly performed.   Presumption of this nature is indulged by the law for the
11

following fundamental reasons: first, innocence, and not wrong-doing, is to be presumed; second,

an official oath will not be violated; and third, a republican form of government cannot survive long
unless a limit is placed upon controversies and certain trust and confidence reposed in each
governmental department or agent by every other such department or agent, at least to the extent of
such presumption.   Thus, this presumption evidences a rule of convenient public policy universally
12

applied and without which great distress would spring in the affairs of men. 13

The presumption of regularity of official acts may be rebutted by affirmative evidence of irregularity
or failure to perform a duty. The presumption, however, prevails until it is overcome by no less than
clear and convincing evidence to the contrary. Thus, unless the presumption is rebutted, it becomes
conclusive. Every reasonable intendment will be made in support of the presumption and in case of
doubt as to an officer's act being lawful or unlawful, construction should be in favor of its
lawfulness. 14

In the light of these baseline propositions, we hold that the trial court correctly gave the
apprehending officers the presumption of regularity in the performance of their duty. The failure of
Pat. Chiapoco to read the joint Affidavit of Apprehension before signing it is of de
minimis importance. This irregularity happened after the buy-bust operation has already been
concluded and where accused-appellant was caught in flagrante delicto. On the other hand, the two
(2) failed attempts of the police authorities to arrest accused-appellant happened long before the
September 23, 1991 buy-bust operation. Evidently, they do not provide any evidence that any
irregularity was committed by the police authorities while conducting the September 23, 1991 buy-
bust operation against the accused-appellant. Moreover, the record is not clear that the two (2)
previous attempts to bag the accused-appellant floundered because the police blundered. It is not
unusual for the police authorities to mount well-studied operations against criminals but
circumstances beyond their control and factors beyond their foresight supervene to frustrate them.
The wily ways of criminals are many and not infrequently they are able to momentarily elude the long
arm of the law. These temporary setbacks of the police authorities, however, do not provide any
justification to deprive them of the disputable presumption of regularity in the performance of official
duty.

In the case at bench, what is clearly established is that the drug pushing activities of the accused-
appellant have long before been brought to the attention of the police authorities and that accused-
appellant had been the subject of a continuing surveillance. There is not an iota of evidence that the
police authorities who apprehended accused-appellant had any ill-motive against him. The records
clearly show that accused-appellant was finally caught in flagrante delicto selling "shabu", a
regulated drug, without authority. He was rightfully convicted.

IN VIEW WHEREOF, the Court hereby affirms the decision of the trial court finding accused-
appellant Carlos de Guzman y Panaligan guilty beyond reasonable doubt of the crime charged.

SO ORDERED.

Narvasa, C.J., Padilla and Regalado, JJ., concur.

Nocon, J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 172603               August 24, 2007

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
DONALDO PADILLA y SEVILLA, Appellant.
 DECISION

CARPIO MORALES, J.:

Appellant, Donaldo Padilla y Sevilla, was charged before the Regional Trial Court (RTC) of Las
Piñas for violation of Section 15, Article III, Republic Act No. 6425, otherwise known as the
Dangerous Drugs Act, the accusatory portion of which reads:

That on or about the 20th day of December, 1995, in the Municipality of Las Piñas, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together with one Jose J[e]b Hidalgo, Jr. y Garcia, whose
present whereabout[s] is still unknown and both of them mutually helping and aiding one
another, without being authorized by law, did, then and there willfully, unlawfully and feloniously,
dispense, deliver, transport or distribute 156.28 grams and 244.32 or a total of 400.60 grams of
Methamphetamine Hydrochloride "shabu", which is a regulated drug, using a red Toyota Corolla car,
in violation of the above-cited law.1 (Emphasis and underscoring supplied)

Culled from the testimonies of prosecution witnesses SPO2 Mabini Rosale and Police Inspector
Virgilio Pelaez is the following version:

Acting on a tip given by an informant, the Las Piñas police conducted two weeks before December
20, 1995 surveillance of the residence at BF Homes, Las Piñas of Malou Padilla (Malou), appellant’s
wife, for alleged drug trafficking.

On application of the police, a warrant for the search of Malou’s residence was issued by the RTC of
Imus, Cavite on December 19, 1995.

Armed with the warrant, SPO2 Mabini Rosale and Police Inspector Virgilio Pelaez, together with six
other operatives, proceeded on December 20, 1995, around 2:30 a.m., to the residence of the
Padilla spouses. On reaching the residence, the police noticed a Nissan Altima car bearing Plate No.
UBD-109 speeding away.

The policemen were soon informed by the Padillas’ helper that the couple was on board the Nissan
Altima.

The policemen, in coordination with Antonio Antonio (Antonio), President of the BF Homeowners’
Association, proceeded to search the Padilla residence in the course of which they recovered
aluminum foils and suspected shabu tubes.

While the policemen and Antonio were still at the Padilla residence, the security guard stationed at
the village gate informed them via radio that persons on board a red Toyota car wanted to go to the
Padilla residence. The guard was thus advised to stall the car and ask those on board what their
purpose was in wanting to go to the Padilla residence.

In the meantime, the policemen immediately proceeded to, and arrived at the village gate. When
they asked the driver of the red car, Jose Hidalgo, Jr. (Hidalgo), why he was going to the Padilla
residence, he replied that he had an important transaction. Soon the policemen heard sounds
emanating from the trunk of the car, prompting them to inquire from Hidalgo what they were. Without
hesitation, Hidalgo opened the trunk of the car where appellant was hiding. At that instant, appellant
readily handed over to the policemen a blue plastic bag, saying: "Ito ang hinahanap ninyo."
After taking the photograph of appellant while he was inside the trunk, SPO2 Rosale opened the
blue plastic bag which yielded three heat-sealed transparent packets and one self-sealing packet all
containing suspected shabu.

The policemen at once arrested appellant and brought him to the NARCOM Headquarters in
Quezon City.

Examination by the PNP Crime Laboratory of the contents of the four packets found inside the blue
plastic bag revealed the following data, which were noted by Forensic Chemist Sonia Sahagun:

SPECIMEN SUBMITTED:

Exh "A" – One (1) unsealed transparent plastic bag labeled "EVIDENCE BAG" containing one (1)
blue clutch bag marked as Exh "A-1" containing the following:

1. Three (3) pieces of heat-sealed transparent plastic bags marked as Exhs "A-2" through
"A-4" respectively, each with white crystalline substance and having a total weight of 156.28
grams.

2. One (1) self-sealing transparent plastic bag marked as "Exh. "A-5" containing 244.32
grams of moist yellowish crystalline substance.

xxxx

FINDINGS:

Qualitative examination conducted on the above-stated specimens gave POSITIVE result to the
tests for Methamphetamine Hydrochloride, a regulated drug.2 (Emphasis supplied)

Proffering a different version, the defense gave the following tale:

After appellant, his brother Luis Padilla, and Hidalgo attended a party at the house of the Padillas’
cousin at Matahimik St., V. Luna, Quezon City where they stayed until 3:00 a.m. of December 20,
1995, they proceeded to BF Homes, Las Piñas to bring appellant home.

When appellant and company arrived at the gate of the village at around 4:00 a.m., they were
stopped by the security guard because the car they were on board did not bear the village sticker.
Appellant thus showed his face to the guard and informed him that he would just be brought home.
The guard thereupon informed appellant that there were policemen in his house who were armed
with a search warrant against his wife, and advised appellant to just wait at the gate as the
policemen were on their way.

Appellant and company thus alighted from the car and in a few minutes the policemen, together with
some officers of the homeowners’ association, arrived at the gate. After appellant identified himself
as Donaldo Padilla, he asked for the search warrant but the policemen replied that it was in the
possession of their companions who remained at his residence.

Without the permission of appellant and company, the police started searching the car but found
nothing.
Afterwards, appellant, together with his companions and the policemen, repaired to his residence.
As appellant was contacting via cellular phone his wife who was then at her sister’s house, the
policemen told him that all of them would go to where she was, which they did.

When appellant’s wife asked for the search warrant, the policemen showed her "bulky" documents.
When asked if they found anything in their house, the policemen claimed that they found shabu
paraphernalia which they never showed, however.

The policemen then invited appellant, his wife, his brother Luis Padilla and Hidalgo to, as they did,
go to a police station in Kamuning, Quezon City. Appellant and his wife were placed in one room at
the station while Luis Padilla and Hidalgo were placed in another.

After sometime, one Colonel Alcantara, who was supposedly the commanding officer of the raiding
team, informed appellant that they found evidence against him and told him: "Ayusin mo na lang ito.
Alam ko namang ginagawa ninyo ito." When appellant asked how much would be needed to settle
the matter, Colonel Alcantara answered ₱200,000.

Appellant could not produce the amount, however, drawing Colonel Alcantara to tell him to just
choose who among them would be charged. As his wife was needed by their kids, appellant
volunteered himself. His wife Malou, Luis Padilla, and Hidalgo were thus released hours later.

Branch 255 of the Las Piñas RTC convicted appellant by Decision of June 3, 2002,3 the dispositive
portion of which reads:

WHEREFORE, judgment is hereby rendered finding accused DONALDO PADILLA Y SEVILLA

Guilty beyond reasonable doubt and sentenced to suffer the extreme penalty of death by means
provided for by law and pay a fine of ₱2,000,000.00 and costs.4

The trial court found unbelievable appellant’s claim that the charge against him came about because
he could not raise the ₱200,000 demanded by Colonel Alcantara for, so the trial court held, it was
not even shown that the latter was charged for the alleged attempt to extort money from him.

And the trial court found defense witnesses-appellant’s brother Luis Padilla and security guard
Romeo Placido (Placido) to be biased.

On elevation of the case to this Court for automatic review, it referred the same to the Court of
Appeals pursuant to People v. Mateo.5

By Decision of May 31, 2005,6 the appellate court affirmed that of the trial court, with the modification
that the death penalty imposed was reduced to reclusion perpetua.

In sustaining the conviction of appellant, the appellate court ratiocinated:

We cannot give credence to appellant’s claim that he was merely framed by the policemen and the
instant charge came simply because appellant could not raise the ₱200,000.00 demanded of him by
the policemen. The prosecution witnesses in the persons of the arresting officers positively and
categorically pointed to the appellant as being in possession of 400.6 grams of shabu while hiding in
the baggage compartment of the red Toyota car. x x x

xxxx
In the case at bench, appellant similarly failed to present evidence to establish his claim of failed
extortion. The fact that appellant did not file any criminal or administrative charges against the
arresting officers bolsters Our conclusion that the alleged frame up merely exists as a figment of
appellant’s imagination. On the other hand, appellant’s story that after the failed extortion attempt,
Col. Alcantara asked him to choose who would be charged and "sacrificed" by choosing himself and
thus he was the only one charged, is belied by the Information itself which charged both him and
Jose "Jeb" Hidalgo[,] Jr. y Garcia for the crime.

Appellant’s claim that the police merely planted the shabu (400.6 grams) deserves scant
consideration. It is incredible that the police officers would plant such a large quantity of shabu when
a few grams or even a sachet would have sufficed to frame up appellant. Moreover, the policemen
as public officers are presumed to have performed their official duties with regularity and in
accordance with law. In the absence of the proof of motive to falsely impute such a serious crime
against appellant, the presumption of regularity in the performance of official duty, as well as the
findings of the trial court on the credibility of witness, prevails over appellant’s self-serving and
uncorroborated defense.

xxxx

Appellant claims that the testimony of defense witness Romeo Placido should have been given more
weight. However, as a security guard of the BF Homeowners Association, Romeo Placido had a
motive to testify in favor of appellant. His bias surfaced during the cross-examination, thus:

"Q And that in case of conflict between your loyalty to the residents of the association and the call of
duty to assist the law enforcement, which side would you take?

A The homeowner’s sir."

Bias is that which excites the disposition to see and report matters as they are wished for rather than
as they are. Corroborative evidence in defense of the appellant, since tainted with bias, actually
weakened the appellant’s defense. On the other hand, the corroboration provided by appellant’s
brother, Luis Domer Padilla deserves scant consideration as it is but consistent with human nature
that he protect his brother.7 (Emphasis and underscoring supplied)

The case is now before this Court, appellant arguing that the case for the prosecution is too
"preposterous" to be worthy of credence. He points out that no person in his right mind would
actually flee his house to escape a raiding team after leaving no incriminating evidence behind, only
to return to it, after only a few hours while the team was still conducting its search and, worse,
carrying with him incriminating evidence that the raiding team was supposedly looking for.

Appellant goes on to contend that it is incredible for him to have gone through the trouble of hiding at
the baggage compartment of a motor vehicle, then create noises to thus arouse the curiosity and
suspicion of the police officers.

Continuing, appellant argues that it is reversible error to invoke the legal presumption of regularity in
the performance of official functions in light of the failure of the prosecution to explain the following
highly irregular circumstances surrounding his arrest: 1) the raiding team had to serve the search
warrant at an unholy hour of 2:30 a.m., in violation of Rule 126, Section 9 of the Revised Rules of
Court, 2) the alleged search warrant was never presented in evidence, rendering its existence
doubtful or suspect, 3) the house searched was in the southernmost portion of Metro Manila,
whereas the NARCOM team that raided it was based and actually assigned at the North Metro
District Unit which did not have primary territorial jurisdiction over the place, and 4) driver Hidalgo,
who was supposedly arrested with appellant, was never presented for inquest. These irregularities,
appellant concludes, more than sufficiently preclude the application of the legal presumption of
regularity in the performance of official duty.

Finally, appellant argues that it was error to discredit the testimony of Luis Padilla on the basis solely
of his affinity to appellant, and that of Placido, for the latter’s profession of loyalty to homeowners
does not mean that he was willing to perjure himself.

It is gathered that in convicting appellant, the appellate court relied, in the main, on the weakness of
the evidence for the defense, focusing on how unavailing appellant’s claim of extortion by the police
officers is in light of a failure to show that they were charged administratively; the bias of defense
witnesses Luis Padilla and Placido; and the untruthfulness of the claim of appellant that he was the
only one charged, given that "the Information itself . . . charged him and . . . Hidalgo . . . for the
crime."

After a considered review of the records of the case, this Court finds the tale of the prosecution not
to be in accordance with human nature and the experience of mankind.

As correctly pointed out by appellant, it would be absurd for him to go back to his house hours after
allegedly escaping from the raiding team, to thus risk being arrested when, chances were, the police
officers would be, as they were, still waiting for him.

Assuming that appellant did attempt to go back to his house after fleeing and that he was carrying
400+ grams of shabu, why would he not flee again on being informed by the guard at the village that
his house was being subjected to search and that the searching police officers were in fact on their
way to the gate?

Again , if indeed appellant was hiding in the trunk of the car and in possession of 400+ grams of
shabu, why would he create noises that would arouse the curiosity of the police?

The presumption of regularity in the performance of official functions cannot by itself affect the
constitutional presumption of innocence of the accused, particularly if the evidence for the
prosecution is weak. People v. Mirantes8 so teaches:

The oft-cited presumption of regularity in the performance of official functions cannot by itself affect
the constitutional presumption of innocence enjoyed by an accused, particularly when the
prosecution’s evidence is weak. The evidence of the prosecution must be strong enough to
pierce the shield of this presumptive innocence and to establish the guilt of the accused beyond
reasonable doubt. And where the evidence of the prosecution is insufficient to overcome this
presumption, necessarily, the judgment of conviction of the court a quo must be set aside. The onus
probandi on the prosecution is not discharged by casting doubts upon the innocence of an accused,
but by eliminating all reasonable doubts as to his guilt.9 (Emphasis and underscoring supplied)

Further denting the case for the prosecution is its failure to present the search warrant, the
photograph of appellant allegedly taken while he was inside the car trunk, and the seizure receipt
showing that crystalline substance (later determined to be shabu) was indeed recovered from
appellant, as well as the policemen’s service of and implementation of the alleged search warrant at
an unholy hour, contrary to the injunction of Rule 126, Section 9 of the Rules of Court reading:

SEC. 9. Time of making search. - The warrant must direct that it be served in the day time, unless
the affidavit asserts that the property is on the person or in the place ordered to be searched, in
which case a direction may be inserted that it be served at any time of the day or night.
(Underscoring supplied)

The alleged search warrant and the supposed affidavit in support of the application for its issuance
were not submitted in evidence, hence, there is no way of determining if service thereof during
nighttime was allowed. 1avvphi1

Finally, the finding of the appellate court that appellant’s claim that he was the only one charged is
belied by the Information which also charged Hidalgo is not exactly accurate. For, as the earlier-
quoted Information shows, appellant was the only one charged. Hidalgo, whose whereabouts were
unknown, was, in the body of the Information, merely alleged to have conspired with appellant.

At all events, even assuming arguendo that the defense evidence is weak, the prosecution should
not lean thereon but must stand and rely on the strength and merits of its own evidence.10

The prosecution having failed to discharge the onus of establishing prima facie appellant’s guilt
beyond reasonable doubt,11 the defense did not even have to present evidence, the burden of the
evidence not having shifted to it. The acquittal of the appellant is thus in order.

WHEREFORE, the judgment appealed from is REVERSED and SET ASIDE.

For failure of the prosecution to establish the guilt beyond reasonable doubt of appellant Donaldo
Padilla y Sevilla, he is ACQUITTED of the crime charged.

The Director of the Bureau of Prisons is ordered to cause the RELEASE of appellant from custody
unless he is being lawfully held for another lawful cause.

Let a copy of this Decision be furnished the Director of the Bureau of Prisons who is likewise ordered
to report to this Court of the action taken hereon within five (5) days.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

Third Division
EN BANC

G.R. No. 170008             January 19, 2009

DUTCH BOY PHILIPPINES, INC., Petitioner,

vs.
RONALD SENIEL substituted by Ligaya Quimpo and CESARIO SENIEL substituted by
Edelmira P. Seniel, Respondents.

DECISION
NACHURA, J.:

For review is the Court of Appeals Decision1 dated June 30, 2005 in CA-G.R. CV No. 70870. The
assailed decision, in turn, reversed and set aside the Regional Trial Court (RTC) Decision2 dated
December 29, 2000 in Civil Case No. 94-2720; and, consequently, dismissed the complaint filed by
petitioner Dutch Boy Philippines, Inc. against Ronald3 and Cesario4 Seniel.

The factual and procedural antecedents follow:

Petitioner is a corporation engaged in manufacturing quality paint products and selling them through
authorized dealers in various parts of the country.5 Jonathan Joyohoy (Joyohoy), on the other hand,
was a sales representative of petitioner for Mindanao, based in Davao City.6

Sometime between May and June 1994, petitioner conducted an audit of its sales accounts with its
authorized dealers in Mindanao. In the course of the audit, petitioner discovered that its authorized
dealers7 had outstanding balances consisting of paint products withdrawn from the Certified
Mindanao Marketing Corporation (CMMC) warehouse. Combining all the dealers’ accountabilities
yielded a total amount of P1,939,125.16.8

The above findings prompted petitioner to send letters of confirmation to the concerned dealers for
the latter to confirm their respective balances. Upon receipt of said letters, the authorized dealers
disclaimed their alleged accountabilities; and contended instead that the same had already been
paid or that they never ordered/received the goods stated therein.9 In view thereof, petitioner issued
a Memorandum10 to Joyohoy (being the sales representative in the area) requiring the latter to
explain the transactions involving the concerned dealers and their corresponding accountabilities. In
response, Joyohoy explained that the subject stocks were withdrawn from the warehouse by Ronald
and Cesario Seniel, or their representatives and delivered to Teknik Marketing, a sole
proprietorship11 engaged as a painting contractor.12

For failure to collect the amount due it, petitioner commenced an action for Collection of Sum of
Money13 against Joyohoy, Ronald and Cesario. Petitioner claimed that the three defendants, in
conspiracy, acted fraudulently in preparing sales invoices which were used to withdraw the subject
paint products delivered to Teknik Marketing, to the damage and prejudice of petitioner. Petitioner
likewise demanded from Joyohoy the delivery of such additional amounts representing the payments
made by some authorized dealers which were not remitted by the sales agent.

In answer to petitioner’s complaint, Ronald and Cesario admitted that they had transacted business
with Joyohoy; specifically, the purchase of various paint products offered by him which they used for
their painting projects. They, however, added that it was Joyohoy who prepared the necessary
purchase orders, facilitated the delivery of the paint products and collected payments as
well. 14 Ronald and Cesario disavowed participation in any fraudulent act committed by Joyohoy. For
his part, Joyohoy denied liability and contended that it was Ronald and Cesario who received the
paint products and were, thus, liable for petitioner’s claims.15

On December 29, 2000, the RTC rendered a Decision in favor of petitioner and against Joyohoy,
Ronald and Cesario, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the Court hereby renders judgment in favor of the plaintiff
and against the defendants:
1) Ordering defendants Jonathan Joyohoy, Ronald Seniel and Cesario Seniel to pay, jointly and
severally, the amount of P783,097.05 to the plaintiff together with the legal interest from the filing of
the complaint;

2) Ordering defendant Jonathan Joyohoy to pay the plaintiff the following amounts:a – P859,589.57
with legal interest from the filing of the complaint;
b – P147,432.08 with legal interest from the filing of the complaint;

3) attorney’s fees in the amount of P100,000.00.

4) costs of suit.

SO ORDERED.16

In arriving at this conclusion, the RTC gave credence to the positive testimonies of the witnesses for
petitioner. The trial court believed that the subject paint products were withdrawn by Joyohoy,
Ronald and Cesario, in fraud of petitioner. Hence, the monetary award in favor of petitioner.

On appeal to the Court of Appeals, the appellate court reversed and set aside the RTC decision, and
dismissed the complaint as against Ronald and Cesario. The dispositive portion of the assailed CA
decision is quoted hereunder:

WHEREFORE, the appealed Decision is hereby REVERSED and SET ASIDE and the complaint as

against appellants Ronald Seniel and Cesario Seniel is hereby DISMISSED. The Court hereby
orders appellee to pay moral damages in the amount of Two Hundred Thousand (Php200,000.00)
Pesos to each of the appellants and compensatory damages of One Hundred Thousand
(Php100,000.00) Pesos each by reason of the wrongful attachment of their properties.

SO ORDERED.17

The appellate court declared that petitioner failed to adduce sufficient evidence to establish
conspiracy between Joyohoy, on the one hand, and Ronald and Cesario, on the other. What was
established, according to the CA, was simply the withdrawal of the subject paint products from
petitioner’s warehouse, upon the order of Joyohoy. Even if Ronald and Cesario indeed purchased
paint products through Joyohoy, no anomaly can be attributed to the transaction considering that
petitioner had previously done business with persons or entities who were not authorized dealers.
Therefore, liability could attach only to Joyohoy and not to Ronald and Cesario.

Aggrieved, petitioner now comes before this Court in this petition for review on certiorari, anchored
on the following grounds:

A. WHETHER THE COURT OF APPEALS GRAVELY ERRED AND ABUSED ITS DISCRETION IN
REVERSING AND SETTING ASIDE THE DECISION DATED DECEMBER 29, 2000 DECLARING
THAT PETITIONER HEREIN AS PLAINTIFF WAS NOT ABLE TO SUFFICIENTLY ESTABLISH
CONSPIRACY AMONG DEFENDANT JOYOHOY AND RESPONDENTS RONALD SENIEL AND
CESARIO SENIEL DESPITE THE CLEAR FINDINGS OF FACT BY THE LOWER COURT THAT
CONSPIRACY DID EXIST TO DEFRAUD HEREIN PETITIONER.

B. WHETHER THE COURT OF APPEALS ERRED IN ORDERING HEREIN PETITIONER TO PAY

EACH [OF THE] RESPONDENTS MORAL DAMAGES IN THE AMOUNT OF P200,000 AND
COMPENSATORY DAMAGES FOR P100,000 FOR WRONGFUL ATTACHMENT OF THEIR
PROPERTIES.18

The petition is partly meritorious.

We reiterate the well-entrenched principle that this Court is not a trier of facts and does not, as a
rule, undertake a re-examination of the evidence presented by the parties. A number of
exceptions19 have nevertheless been recognized.20 Indeed, the difference between the findings of the
trial and appellate courts, leading to entirely disparate dispositions, is reason enough for this Court to
review the evidence in this case.21

After a careful evaluation of the records, we find no cogent reason to disturb the findings of fact and
conclusions of law of the Court of Appeals. The appellate court is correct in saying that petitioner
failed to sufficiently establish Ronald and Cesario’s liability.

It is a basic rule in civil cases that the party having the burden of proof must establish his case by
preponderance of evidence.22 Preponderance of evidence is the weight, credit, and value of the
aggregate evidence on either side and is usually considered to be synonymous with the term
“greater weight of the evidence” or “greater weight of the credible evidence.” It is evidence which is
more convincing to the court as worthy of belief than that which is offered in opposition
thereto.23 Although the evidence adduced by plaintiff is stronger than that presented by defendant, a
judgment cannot be entered in favor of the former, if his evidence is not sufficient to sustain his
cause of action.24

Petitioner’s cause of action in its complaint against Ronald and Cesario was the act of defraudation
which they allegedly committed in conspiracy with Joyohoy. It is, therefore, imperative for petitioner
to prove that fraud was committed and that conspiracy existed.

It was established that the goods were brought out of the warehouse upon the order of Joyohoy. Per
his job description, Joyohoy should have delivered the products to the authorized dealers, collected
their payments, then remitted his collections to petitioner’s depositary bank.25 Unfortunately for
petitioner, Joyohoy used his position as an authorized sales representative and abused the trust
reposed in him, in misappropriating the subject paint products.

In finding Ronald and Cesario liable, the trial court relied on the testimony of the warehouseman
Romeo Gutierrez (Romeo) that Joyohoy instructed him on several occasions to release to the former
various paint products. The testimony of Manuel Antolin (Antolin) was also cited to show how the
alleged defraudation was discovered by petitioner. Likewise adduced as evidence was the
handwritten response letter sent by Joyohoy to petitioner stating that the subject paint products were
withdrawn by Ronald and Cesario and/or their representatives.26 Said pieces of evidence, however,
lack probative value.

A thorough evaluation of the testimony of Romeo shows that, indeed, the subject paint products
were withdrawn from the warehouse upon the authority and instruction of Joyohoy. However, it is
wanting in details as to the alleged participation of Ronald and Cesario that would make them
conspirators in defrauding petitioner. While petitioner claimed in its complaint that Ronald and
Cesario had a hand in the preparation of fictitious sales orders and invoices, Romeo admitted in his
testimony that he himself was the one who prepared them upon the instruction of Joyohoy. If at all,
Ronald and Cesario’s participation was limited to receiving the subject paint products. But apart from
Romeo’s bare allegation, there is no iota of evidence to show such fact of receipt. If we follow the
procedure in releasing petitioner’s products from the warehouse, as testified to by Romeo, the
signature of the person receiving the goods was necessary. Yet again, the signature of Ronald and
Cesario never appeared in any of the documentary evidence presented.

The testimony of Antolin establishes a disparity in the accounts, as appearing in petitioner’s records
and those of the dealers. It shows that Joyohoy was repeatedly involved in anomalous transactions
by preparing fictitious sales invoices, withdrawing paint products from the warehouse, then selling
them to various establishments in Mindanao with whom petitioner had no dealings. Thus, apart from
the P783,097.05 liability charged to Joyohoy in concert with Ronald and Cesario, the trial court
likewise made Joyohoy answerable for the amount of P859,589.57 arising from another illegal
transaction.27 However, notwithstanding the overwhelming evidence against Joyohoy, no clear
evidence could link Ronald and Cesario to these fraudulent transactions. Besides, as correctly
observed by the appellate court, sales transactions that were conducted with non-authorized dealers
were sanctioned by petitioner.28

As to the letter of Joyohoy, wherein he narrated the participation of Ronald and Cesario, considering
that he did not testify on the contents thereof, the same is hearsay. An unverified and unidentified
private document cannot be accorded probative value. It must be rejected because the party against
whom it is presented is deprived of the right and opportunity to cross-examine the person to whom
the statements or writings are attributed. Its executor or author should be presented as a witness to
provide the other party the opportunity to question its contents. The petitioner’s failure to present the
author of the letter renders its contents suspect and of no probative value.29

Neither can we consider said letter as an extrajudicial admission of a conspirator against his co-
conspirator.30 For one, the admission made by Joyohoy was made after the alleged conspiracy had
ceased to exist. More importantly, the fact of conspiracy was not clearly established.31

At this point, we reiterate that a party who alleges a fact has the burden of proving it. Whoever
alleges fraud or mistake affecting a transaction must substantiate it, since it is presumed that a
person takes ordinary care of his concerns, and that private transactions have been fair and
regular.32

Good faith is always presumed, and it is the burden of the party claiming otherwise to adduce clear
and convincing evidence to the contrary. No judgment for damages could arise where the source of
injury, be it fraud, fault, or negligence, was not affirmatively established by competent evidence.33

In view of the foregoing, Ronald and Cesario cannot be held jointly and severally liable with Joyohoy.
The CA was, therefore, correct in dismissing the complaint as against Ronald and Cesario.

The CA, however, erred in awarding moral and compensatory damages in favor of Ronald and
Cesario, as it did not disclose in the body of its decision the factual basis for such awards. Whenever
such awards are made, the court must explicitly state in the body of its decision, and not merely in its
dispositive portion, the legal reason for the award.34

In the present case, the appellate court awarded damages only in the dispositive portion of the
decision, without stating therein clearly and distinctly the factual and legal bases thereof. Thus,
following the doctrine enunciated in Pang-oden v. Leonen35 and Ranola v. Court of Appeals,36 said
awards should be deleted. The grant of damages and attorney’s fees requires factual, legal and
equitable justification; its basis cannot be left to speculation or conjecture.37

WHEREFORE, premises considered, the petition is PARTIALLY GRANTED. The Decision of the
Court of Appeals dated June 30, 2005 in CA-G.R. CV No. 70870 is AFFIRMED subject to
the MODIFICATION that the award of moral and compensatory damages is DELETED.
SO ORDERED.

SECOND DIVISION

February 10, 2016

G.R. No. 199194

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
JOSE B. SAREÑOGON, JR., Respondent.

DECISION

DEL CASTILLO, J.:

A petition for certiorari pursuant to Rule 65 of the Rules of Court is the proper remedy to challenge a
trial court's declaration of presumptive death under Article 41 ofThe Family Code of the
Philippines  (Family Code).
1 2

This Petition for Review on Certiorari assails the October 24, 2011 Decision  of the Court of Appeals
3 4

(CA) in CA-GR. SP No. 04158-MIN dismissing the Petition for Certiorari filed by petitioner Republic
of the Philippines (Republic).

Factual Antecedents

On November 4, 2008, respondent Jose B. Sareñogon, Jr. (Jose) filed a Petition  before the
5

Regional Trial Court (RTC) of Ozamiz  City-Branch 15 for the declaration of presumptive death of his
6

wife, Netchie S.  Sareñogon (Netchie).

7 8

In an Amended Order dated Februrary 11, 2009, the RTC set the Petition for initial hearing on April
16, 2009. It likewise directed the publication of said Order in a newspaper of general circulation in
the cities of Tangub, Ozamiz and Oroquieta, all in the province of Misamis Occidental. Nobody
opposed the Petition.  Trial then followed.
9 10

Jose testified that he first met Netchie in Clarin, Misamis Occidental in 1991.  They later became
11

sweethearts and on August 10, 1996, they got married in civil rites at the Manila City Hall.  However,
12

they lived together as husband and wife for a month only because he left to work as a seaman while
Netchie went to Hongkong as a domestic helper.  For three months, he did not receive any
13

communication from Netchie.  He likewise had no idea about her whereabouts.  While still abroad,
14 15

he tried to contact Netchie’s parents, but failed, as the latter had allegedly left Clarin, Misamis
Occidental.  He returned home after his contract expired.  He then inquired from Netchie’s relatives
16 17

and friends about her whereabouts, but they also did not know where she was.  Because of these,
18

he had to presume that his wife Netchie was already dead.  He filed the Petition before the RTC so
19

he could contract another marriage pursuant to Article 41 of the Family Code. 20

Jose’s testimony was corroborated by his older brother Joel Sareñogon, and by Netchie’s aunt,
Consuelo Sande.  These two witnesses testified that Jose and Netchie lived together as husband
21

and wife only for one month prior to their leaving the Philippines for separate destinations
abroad.  These two added that they had no information regarding Netchie’s location.
22 23

Ruling of the Regional Trial Court

In its Decision  dated January 31, 2011 in Spec. Proc. No. 045-08, the RTC held that Jose had
24

established by preponderance of evidence that he is entitled to the relief prayed for under Article 41
of the Family Code.  The RTC found that Netchie had disappeared for more than four years, reason
25

enough for Jose to conclude that his wife was indeed already dead.  The dispositive portion of the
26

Decision reads:

VIEWED IN THE LIGHT OF THE FOREGOING, judgment is hereby rendered declaring respondent
presumptively dead for purposes of remarriage of petitioner.

SO ORDERED. 27

Proceedings before the Court of Appeals

On April 19, 2011, the Republic, through the Office of the Solicitor General (OSG), elevated the
judgment of the RTC to the CA via a Petition for Certiorari  under Rule 65 of the Revised Rules of
28

Court.

In its Decision  of October 24, 2011, the CA held that the Republic used the wrong recourse by
29

instituting a petition for certiorari under Rule 65 of the Revised Rules of Court. The CA perceived no
error at all in the RTC’s judgment granting Jose’s Petition for the declaration of the presumptive
death of his wife, Netchie. The CA thus held in effect that the Republic’s appeal sought to correct or
review the RTC’s alleged misappreciation of evidence which could not translate into excess or lack
of jurisdiction amounting to grave abuse of discretion.  The CA noted that the RTC properly caused
30

the publication of the Order setting the case for initial hearing.  The CA essentially ruled that, "[a]
31

writ of certiorari may not be used to correct a lower court’s evaluation of the evidence and factual
findings. In other words, it is not a remedy for mere errors of judgment, which are correctible by an
appeal."  The CA then disposed of the case in this wise:
32

WHEREFORE, the petition for certiorari is dismissed.

SO ORDERED. 33

Issues

The Republic filed the instant Petition  raising the following issues:
34
THE HONORABLE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN ITS ASSAILED
DECISION BECAUSE:

THE HONORABLE COURT OF APPEALS GRAVELY ERRED ON A QUESTION OF LAW IN

DISMISSING THE REPUBLIC’S PETITION FOR REVIEW ON CERTIORARI UNDER RULE 65, ON
THE GROUND THAT THE PROPER REMEDY SHOULD HAVE BEEN TO APPEAL THE RTC
DECISION, BECAUSE IMMEDIATELY FINAL AND EXECUTORY JUDGMENTS OR DECISIONS
ARE NOT APPEALABLE UNDER THE EXPRESS PROVISION OF LAW.

II

THE ALLEGED EFFORTS OF RESPONDENT IN LOCATING HIS MISSING WIFE DO NOT

SUFFICIENTLY SUPPORT A "WELLFOUNDED BELIEF" THAT RESPONDENT’S ABSENT WIFE X
X X IS PROBABLY DEAD. 35

Petitioner’s Arguments

The Republic insists that a petition for certiorari under Rule 65 of the Revised Rules of Court is the
proper remedy to challenge an RTC’s immediately final and executory Decision on a presumptive
death.36

The Republic claims that based on jurisprudence, Jose’s alleged efforts in locating Netchie did not
engender or generate a well-founded belief that the latter is probably dead.  It maintains that even
37

as Jose avowedly averred that he exerted efforts to locate Netchie, Jose inexplicably failed to enlist
the assistance of the relevant government agencies like the Philippine National Police, the National
Bureau of Investigation, the Department of Foreign Affairs, the Bureau of Immigration, the Philippine
Overseas Employment Administration, or the Overseas Workers Welfare Administration.  It likewise
38

points out that Jose did not present any disinterested person to corroborate his allegations that the
latter was indeed missing and could not be found.  It also contends that Jose did not advert to
39

circumstances, events, occasions, or situations that would prove that he did in fact make a
comprehensive search for Netchie.  The Republic makes the plea that courts should ever be vigilant
40

and wary about the propensity of some erring spouses in resorting to Article 41 of the Family Code
for the purpose of terminating their marriage.41

Finally, the Republic submits that Jose did not categorically assert that he wanted to have Netchie
declared presumptively dead because he intends to get married again, an essential premise of
Article 41 of the Family Code. 42

Respondent’s Arguments

Jose counters that the CA properly dismissed the Republic’s Petition because the latter’s petition is
erected upon the ground that the CA did not correctly weigh or calibrate the evidence on record, or
assigned to the evidence its due worth, import or significance; and that such a ground does not avail
in a petition for certiorari under Rule 65 of the Revised Rules of Court.  Jose also contends that the
43

Republic should have instead filed a motion for reconsideration  of the RTC’s Decision of January
44

31, 2011, reasoning out that a motion for reconsideration is a plain, speedy and adequate remedy in
law. Jose furthermore submits that the RTC did not act arbitrarily or capriciously in granting his
petition because it even dutifully complied with the publication requirement.  He moreover argues
45

that to sustain the present petition would allow the executive branch to unduly make inroads into
judicial territory.  Finally, he insists that the trial court’s factual findings are entitled to great weight
46

and respect as these were arrived after due deliberation. 47

This Court’s Ruling

This Court finds the Republic’s petition meritorious.

A petition for certiorari under Rule 65

of the Rules of Court is the proper
remedy to question the RTC’s Decision
in a summary proceeding for the
declaration of presumptive death

In the 2005 case of Republic v. Bermudez-Lorino,  we held that the RTC’s Decision on a Petition for
48

declaration of presumptive death pursuant to Article 41 of the Family Code is immediately final and
executory. Thus, the CA has no jurisdiction to entertain a notice of appeal pertaining to such
judgment.  Concurring in the result, Justice (later Chief Justice) Artemio Panganiban further therein
49

pointed out that the correct remedy to challenge the RTC Decision was to institute a petition
for certiorari under Rule 65, and not a petition for review under Rule 45. 50

We expounded on this appellate procedure in Republic v. Tango: 51

This case presents an opportunity for us to settle the rule on appeal of judgments rendered in
summary proceedings under the Family Code and accordingly, refine our previous decisions
thereon.

Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE
FAMILY LAW, establishes the rules that govern summary court proceedings in the Family Code:

ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all
cases provided for in this Code requiring summary court proceedings. Such cases shall be decided
in an expeditious manner without regard to technical rules.

In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters two and
three of the same title. It states:

ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary
proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable.
(Emphasis supplied.)

In plain text, Article 247 in Chapter 2 of the same title reads:

ART. 247. The judgment of the court shall be immediately final and executory.

By express provision of law, the judgment of the court in a summary proceeding shall
be immediately final and executory. As a matter of course, it follows that no appeal can be had of the
trial court’s judgment in a summary proceeding for the declaration of presumptive death of an absent
spouse under Article 41 of the Family Code. It goes without saying, however, that an aggrieved party
may file a petition for certiorari to question abuse of discretion amounting to lack of jurisdiction. Such
petition should be filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of
Courts. To be sure, even if the Court’s original jurisdiction to issue a writ of certiorari is concurrent
with the RTCs and the Court of Appeals in certain cases, such concurrence does not sanction an
unrestricted freedom of choice of court forum. x x x  (Citation omitted; Underscoring supplied)
52

"In sum, under Article 41 of the Family Code, the losing party in a summary proceeding for the
declaration of presumptive death may file a petition for certiorari with the CA on the ground that, in
rendering judgment thereon, the trial court committed grave abuse of discretion amounting to lack of
jurisdiction. From the Decision of the CA, the aggrieved party may elevate the matter to this Court
via a petition for review on certiorari under Rule 45 of the Rules of Court."
53

In fact, in Republic v. Narceda,  we held that the OSG availed of the wrong remedy when it filed a
54

notice of appeal under Rule 42 with the CA to question the RTC’s Decision declaring the
presumptive death of Marina B. Narceda. 55

Above all, this Court’s ruling in Republic v. Cantor  made it crystal clear that the OSG properly
56

availed of a petition for certiorari under Rule 65 to challenge the RTC’s Order therein declaring Jerry
Cantor as presumptively dead. 1âwphi1

Based on the foregoing, it is clear that the Republic correctly availed of certiorari under Rule 65 of
the Revised Rules of Court in assailing before the CA the aforesaid RTC’s Decision.

The "well-founded belief" requisite

under Article 41 of the Family Code is
complied with only upon a showing that
sincere honest-to-goodness efforts had
indeed been made to ascertain whether
the absent spouse is still alive or is
already dead

We now proceed to determine whether the RTC properly granted Jose’s Petition.

Article 41 of the Family Code pertinently provides that:

Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be
null and void, unless before the celebration of the subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse present had a well-founded belief that the absent
spouse was already dead. In case of disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two
years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse
present must institute a summary proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect of reappearance of the absent
spouse. (83a)

In Republic v. Cantor,  we further held that:

57

Before a judicial declaration of presumptive death can be obtained, it must be shown that the prior
spouse had been absent for four consecutive years and the present spouse had a well-founded
belief that the prior spouse was already dead. Under Article 41 of the Family Code, there
are four essential requisites for the declaration of presumptive death:
1. That the absent spouse has been missing for four consecutive years, or two consecutive years if
the disappearance occurred where there is danger of death under the circumstances laid down in
Article 391 of the Civil Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the absentee is dead; and,

4. That the present spouse files a summary proceeding for the declaration of presumptive death of
the absentee. 58

(Underscoring supplied)

With respect to the third element (which seems to be the element that in this case invites extended
discussion), the holding is that the –

mere absence of the spouse (even for such period required by the law), or lack of news that such
absentee is still alive, failure to communicate [by the absentee spouse or invocation of the] general
presumption on absence under the Civil Code [would] not suffice. This conclusion proceeds from the
premise that Article 41 of the Family Code places upon the present spouse the burden of proving the
additional and more stringent requirement of "well-founded belief" which can only be discharged
upon a due showing of proper and honest-to-goodness inquiries and efforts to ascertain not only the
absent spouse’s whereabouts but, more importantly, that the absent spouse is [either] still alive or is
already dead.

xxxx

The law did not define what is meant by "well-founded belief." It depends upon the circumstances of
each particular case. Its determination, so to speak, remains on a case-to-case basis. To be able to
comply with this requirement, the present spouse must prove that his/her belief was the result of
diligent and reasonable efforts and inquiries to locate the absent spouse and that based on these
efforts and inquiries, he/she believes that under the circumstances, the absent spouse is already
dead. It requires exertion of active effort (not a mere passive one).  (Emphasis omitted; underscoring
59

supplied)

In the case at bar, the RTC ruled that Jose has "well-founded belief" that Netchie was already dead
upon the following grounds:

(1) Jose allegedly tried to contact Netchie’s parents while he was still out of the country, but did not
reach them as they had allegedly left Clarin, Misamis Occidental;

(2) Jose believed/presumed that Netchie was already dead because when he returned home, he
was not able to obtain any information that Netchie was still alive from Netchie’s relatives and
friends;

(3) Jose’s testimony to the effect that Netchie is no longer alive, hence must be presumed dead, was
corroborated by Jose’s older brother, and by Netchie’s aunt, both of whom testified that he (Jose)
and Netchie lived together as husband and wife only for one month and that after this, there had
been no information as to Netchie’s whereabouts.
In the above-cited case of Republic v. Cantor,  this Court held that the present spouse (Maria Fe
60

Espinosa Cantor) merely conducted a "passive search" because she simply made unsubstantiated
inquiries from her in-laws, from neighbors and friends. For that reason, this Court stressed that the
degree of diligence and reasonable search required by law is not met (1) when there is failure to
present the persons from whom the present spouse allegedly made inquiries especially the absent
spouse’s relatives, neighbors, and friends, (2) when there is failure to report the missing spouse’s
purported disappearance or death to the police or mass media, and (3) when the present spouse’s
evidence might or would only show that the absent spouse chose not to communicate, but not
necessarily that the latter was indeed dead.  The rationale for this palpably stringent or rigorous
61

requirement has been marked out thus:

x x x [T]he Court, fully aware of the possible collusion of spouses in nullifying their marriage, has
consistently applied the "strict standard" approach. This is to ensure that a petition for declaration of
presumptive death under Article 41 of the Family Code is not used as a tool to conveniently
circumvent the laws. Courts should never allow procedural shortcuts and should ensure that the
stricter standard required by the Family Code is met. x x x

The application of this stricter standard becomes even more imperative if we consider the State’s
policy to protect and strengthen the institution of marriage. Since marriage serves as the family’s
foundation and since it is the state’s policy to protect and strengthen the family as a basic social
institution, marriage should not be permitted to be dissolved at the whim of the parties. x x x

x x x [I]t has not escaped this Court’s attention that the strict standard required in petitions for
declaration of presumptive death has not been fully observed by the lower courts. We need only to
cite the instances when this Court, on review, has consistently ruled on the sanctity of marriage and
reiterated that anything less than the use of the strict standard necessitates a denial. To rectify this
situation, lower courts are now expressly put on notice of the strict standard this Court requires in
cases under Article 41 of the Family Code." (Citations omitted) 62

Given the Court’s imposition of "strict standard" in a petition for a declaration of presumptive death
under Article 41 of the Family Code, it must follow that there was no basis at all for the RTC’s finding
that Jose’s Petition complied with the requisites of Article 41 of the Family Code, in reference to the
"well-founded belief" standard. If anything, Jose’s pathetically anemic efforts to locate the missing
Netchie are notches below the required degree of stringent diligence prescribed by jurisprudence.
For, aside from his bare claims that he had inquired from alleged friends and relatives as to
Netchie’s whereabouts, Jose did not call to the witness stand specific individuals or persons whom
he allegedly saw or met in the course of his search or quest for the allegedly missing Netchie.
Neither did he prove that he sought the assistance of the pertinent government agencies as well as
the media. Nor did he show that he undertook a thorough, determined and unflagging search for
Netchie, say for at least two years (and what those years were), and naming the particular places,
provinces, cities, barangays or municipalities that he visited, or went to, and identifying the specific
persons he interviewed or talked to in the course of his search.

WHEREFORE, the Petition is GRANTED. The Decision dated October 24, 2011 of the Court of
Appeals in CA-G.R. SP No. 04158-MIN is REVERSED AND SET ASIDE. The respondent’s Petition
in said Spec. Proc. No. 045-08 is accordingly DISMISSED.

SO ORDERED.