Rule 128, Section 1 Evidence Defined

TERESITA SALCEDO-ORTANEZ, petitioner,

vs.
COURT OF APPEALS, HON. ROMEO F. ZAMORA, Presiding
Judge, Br. 94, Regional Trial Court of Quezon City and RAFAEL
S. ORTANEZ, respondents.
Oscar A. Inocentes & Associates Law Office for petitioner.

Among the exhibits offered by private respondent were three (3)

cassette tapes of alleged telephone conversations between petitioner
and unidentified persons.
Petitioner submitted her Objection/Comment to private respondent's
oral offer of evidence on 9 June 1992; on the same day, the trial court
admitted all of private respondent's offered evidence.
A motion for reconsideration from petitioner was denied on 23 June
1992.

Efren A. Santos for private respondent.

A petition for certiorari was then filed by petitioner in the Court of
Appeals assailing the admission in evidence of the aforementioned
cassette tapes.
PADILLA, J.:
This is a petition for review under Rule 45 of the Rules of Court which
seeks to reverse the decision * of respondent Court of Appeals in CAG. R. SP No. 28545 entitled "Teresita Salcedo-Ortanez versus Hon.
Romeo F. Zamora, Presiding Judge, Br. 94, Regional Trial Court of
Quezon City and Rafael S. Ortanez".
The relevant facts of the case are as follows:
On 2 May 1990, private respondent Rafael S. Ortanez filed with the
Regional Trial Court of Quezon City a complaint for annulment of
marriage with damages against petitioner Teresita Salcedo-Ortanez,
on grounds of lack of marriage license and/or psychological incapacity
of the petitioner. The complaint was docketed as Civil Case No. Q-905360 and raffled to Branch 94, RTC of Quezon City presided over by
respondent Judge Romeo F. Zamora.
Private respondent, after presenting his evidence, orally formally
offered in evidence Exhibits "A" to "M".

On 10 June 1993, the Court of Appeals rendered judgment which is

the subject of the present petition, which in part reads:
It is much too obvious that the petition will have to fail,
for two basic reasons:
(1) Tape recordings are not inadmissible per se. They
and any other variant thereof can be admitted in
evidence for certain purposes, depending on how they
are presented and offered and on how the trial judge
utilizes them in the interest of truth and fairness and
the even handed administration of justice.
(2) A petition for certiorari is notoriously inappropriate to
rectify a supposed error in admitting evidence adduced
during trial. The ruling on admissibility is interlocutory;
neither does it impinge on jurisdiction. If it is erroneous,
the ruling should be questioned in the appeal from the
judgment on the merits and not through the special civil
action of certiorari. The error, assuming gratuitously
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that it exists, cannot be anymore than an error of law,

properly correctible by appeal and not by certiorari.
Otherwise, we will have the sorry spectacle of a case
being subject of a counterproductive "ping-pong" to
and from the appellate court as often as a trial court is
perceived to have made an error in any of its rulings
with respect to evidentiary matters in the course of trial.
This we cannot sanction.
WHEREFORE, the petition for certiorari being devoid
of merit, is hereby DISMISSED. 1
From this adverse judgment, petitioner filed the present petition for
review, stating:
Grounds for Allowance of the Petition
10. The decision of respondent [Court of Appeals] has
no basis in law nor previous decision of the Supreme
Court.
10.1 In affirming the questioned order of
respondent judge, the Court of Appeals
has decided a question of substance not
theretofore determined by the Supreme
Court as the question of admissibility in
evidence of tape recordings has not,
thus far, been addressed and decided
squarely by the Supreme Court.
11. In affirming the questioned order of respondent
judge, the Court of Appeals has likewise rendered a
decision in a way not in accord with law and with
applicable decisions of the Supreme Court.

11.1 Although the questioned order is

interlocutory in nature, the same can still
be [the] subject of a petition for
certiorari. 2
The main issue to be resolved is whether or not the remedy of
certiorari under Rule 65 of the Rules of Court was properly availed of
by the petitioner in the Court of Appeals.
The extraordinary writ of certiorari is generally not available to
challenge an interlocutory order of a trial court. The proper remedy in
such cases is an ordinary appeal from an adverse judgment,
incorporating in said appeal the grounds for assailing the interlocutory
order.
However, where the assailed interlocutory order is patently erroneous
and the remedy of appeal would not afford adequate and expeditious
relief, the Court may allow certiorari as a mode of redress. 3
In the present case, the trial court issued the assailed order admitting
all of the evidence offered by private respondent, including tape
recordings of telephone conversations of petitioner with unidentified
persons. These tape recordings were made and obtained when
private respondent allowed his friends from the military to wire tap his
home telephone. 4
Rep. Act No. 4200 entitled "An Act to Prohibit and Penalize Wire
Tapping and Other Related Violations of the Privacy of
Communication, and for other purposes" expressly makes such tape
recordings inadmissible in evidence. The relevant provisions of Rep.
Act No. 4200 are as follows:
Sec. 1. It shall be unlawful for any person, not
being authorized by all the parties to any private
communication or spoken word, to tap any wire
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or cable, or by using any other device or

arrangement, to secretly overhear, intercept, or
record such communication or spoken word by
using a device commonly known as a
dictaphone or dictagraph or detectaphone or
walkie-talkie or tape-recorder, or however
otherwise described. . . .

WHEREFORE, the decision of the Court of Appeals in CA-G. R. SP

No. 28545 is hereby SET ASIDE. The subject cassette tapes are
declared inadmissible in evidence.

Sec. 4. Any communication or spoken word, or

the existence, contents, substance, purport, or
meaning of the same or any part thereof, or any
information therein contained, obtained or
secured by any person in violation of the
preceding sections of this Act shall not be
admissible in evidence in any judicial, quasijudicial, legislative or administrative hearing or
investigation.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOERAL

GALLENO, accused-appellant.

Clearly, respondents trial court and Court of Appeals failed to consider

the afore-quoted provisions of the law in admitting in evidence the
cassette tapes in question. Absent a clear showing that both parties to
the telephone conversations allowed the recording of the same, the
inadmissibility of the subject tapes is mandatory under Rep. Act No.
4200.
Additionally, it should be mentioned that the above-mentioned
Republic Act in Section 2 thereof imposes a penalty of imprisonment
of not less than six (6) months and up to six (6) years for violation of
said Act. 5
We need not address the other arguments raised by the parties,
involving the applicability of American jurisprudence, having arrived at
the conclusion that the subject cassette tapes are inadmissible in
evidence under Philippine law.

SO ORDERED.

DECISION
PER CURIAM:
What could be more compelling than deciding a case which involves
the sexual abuse of a five-year old child? Equally important is the fact
that the case before us involves the highest penalty imposable by law.
Being the guardian of the most fundamental liberties of every citizen,
the Court must pass upon every intricate detail of the case at bar to
determine whether or not accused-appellant committed the gruesome
act imputed against him.
Accused-appellant Joeral Galleno seeks reversal of the judgment of
Branch 14 of the Regional Trial Court of the 6th Judicial Region
stationed in Roxas City, relying on the defense of denial. Since the
case involves the death penalty, the matter has been elevated to this
Court for automatic review.
Accused-appellant was charged in an Information docketed as
Criminal Case No. C-4629 for the crime of Statutory Rape, reading as
follows:
The undersigned Assistant Provincial Prosecutor, upon prior
authority and approval of the Provincial Prosecutor, and the
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original complaint filed by the guardian of the offended party,

accuses Joeral Galleno of the crime of STATUTORY RAPE,
committed as follows:
That on or about 5:00 o'clock in the afternoon of August 16,
1994, at Brgy. Balighot, Maayon, Capiz, and within the
jurisdiction of this Court, the said accused did, then and
there, wilfully and feloniously, and without the permission of
anyone, enter the house of EVELYN OBLIGAR, a five-year
old child, and succeeded in having carnal knowledge of her
thereby inflicting upon the latter a vaginal laceration which
caused continuous bleeding and her admission of five (5)
days at the Roxas Memorial Hospital.

their lackadaisical parents in their innate moral obligation and

responsibility in educating their children that in this corner of
the world the wheels of justice is not asleep and its
unforgiving hands and watchful eyes are as vigilant as ever.
(pp. 44-45, Rollo.)
In flashback, let us visualize the events.
Evelyn Obligar Garganera is the 5-year old daughter of Rosita Obligar
Garganera who had to leave the province to find work in Manila after
separating from her husband. Evelyn, together with her younger
brother, 3-year old Eleazar, was thus left under the care and custody
of their uncle, Emetario Obligar, and aunt, Penicola Obligar.

CONTRARY TO LAW.
(p. 9, Rollo.)
Accused-appellant entered a plea of not guilty. Thereafter, trial on the
merits ensued, resulting in a judgment of conviction, the dispositive
portion of which reads:
IN THE LIGHT OF THE FOREGOING ESTABLISHED
FACTS, the Court finds accused JOERAL GALLENO
GUILTY beyond reasonable doubt under Section 11 of
Republic Act No. 7659 amending Article 335 of the Revised
Penal Code.
Accordingly, accused JOERAL GALLENO is sentenced to
suffer the supreme penalty of DEATH and to indemnify the
victim Evelyn Obligar Garganera the sum of FIFTY
THOUSAND (P50,000.00) PESOS.

Less than kilometer away from their place of residence lived accusedappellant, 19-year old Joeral Galleno, known well Evelyn's family due
to his frequent visits at the Obligars' abode as he was paying court to
Emetario's eldest child, Gina.
On August 16, 1994, Emetario and Penicola left their residence to
work at sugarcane plantation owned by Magdalena Dasibar. Their
three children had all ealier left for school. The only persons left in the
house were niece Evelyn and nephew Eleazar.
At around 4 o'clock in the afternoon, accused-appellant was on his
way to his Lola Esing to have his pants tailored. Since it was
drizzling, he passed by the Obligars' residence and found the two
children left to themselves. The prosecution and the defense
presented conflicting versions on what occurred at said residence.
However, the result is undisputed. Evelyn sustained a laceration in her
vagina which result in profuse, and to our mind, life-threatening
bleeding due to her tender age.

Let this DECISION serve as clear signal warning the

perverts, the misguided elements of our society, especially
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The prosecution's version of what took place at the Obligars'

residence is based on the testimony of Evelyn herself, her uncle
Emetario, and the doctors who examined and treated her. The
Solicitor General summarized the same in this wise:
2. Appellant took advantage of the situation by sexually
molesting Evelyn. After lowering her shorts, he made Evelyn
sit on his lap, facing him. As Evelyn was only five-years old
while appellant was fully-grown man, the penetration caused
the child's vagina to bleed, making her cry in pain. (pp.10-11
and 18-25, tsn, Garganera, January 10, 1995).
3. Appellant tried to stop the bleeding by applying, with his
finger, the sap of "madre de cacao" leaves on her vagina.
Unsuccessful in his attempt, he left Evelyn grimacing and
crying in pain. (pp. 14-15, tsn Garganera, January 10, 1995;
pp. 6-7, tsn, Obligar, February 7, 1995).
4. Shortly, Emeterio and Penicola came home from work.
The spouses were laborers in a sugarcane plantation about
two kilometers away from their house. They arrived to find
Evelyn crying. Emetario noticed that there was blood in
Evelyn's dress and she was pressing a rug against her
genital organ. (pp. 11-12, tsn, Obligar, January 10, 1995; pp.
8-9, tsn, Obligar, February 7, 1995).
5. Emeterio asked Evelyn what happened but she did not
answer. Emetario spread the child's legs and saw that her
vagina had been lacerated and blood was oozing therefrom.
He summoned a "quack" doctor who applied herbal medicine
on Evelyns's vagina but did not stop the bleeding. (pp.12-14,
tsn, Obligar, January 12, 1995).
6. The following day, August 17, 1994, Emeterio brought
Evelyn to the clinic of Dr. Alfonso D. Orosco, the Rural Health

Physician of Maayon, Capiz. Dr. Orosco reported, upon

examining Evelyn, that he found (1) clotted blood, about 1
centimeter in diameter, in her vaginal opening, and (2) a
vaginal laceration, measuring 1.0 centimeter x o.5
centimeter, between the 3:00 o'clock and 6:00 o'clock
position. He also affirmed that Evelyn's vaginal laceration
could have been by blunt instrument inserted into the vigina,
that it was possible that a human penis in full erection had
been forcibly inserted into her vagina, and that a human
penis in full errection is considered a blunt intrument (pp. 4-7,
tsn, Orosco, November 28, 1994; p. 14, tsn, Obligar, January
12, 1995).
7. While he was examining Evelyn, Dr. Orosco asked Evelyn
what caused her injuries. The child told him that a penis was
inserted into her vagina and that its insertion caused her
pain. (pp. 9-10, 14 and 18-19, tsn, Orosco, November 28,
1994).
8. Since his clinic lacked the proper medical facilities needed
to treat Evelyn, Dr. Orosco, after dressing the victim's wound
which continued to bleed, advised Emeterio and Penicola to
bring the child to the hospital for further medical treatment.
(p.8, tsn, Orosco, November 28, 1994; pp. 14-16, tsn,
Obligar, January 12, 1995)
9. On August 18, 1994, Emeterio brought Evelyn to the
Roxas Memorial General Hospital were she was examined
by resident physician Dr. Ma. Lourdes Laada. Dr. Laada,
upon examining Evelyn found that "there was a 3 cm.
lacerated wound at the left anterior one-third of the vagina"
and "the pressence of about 10-15cc of blood" at the vaginal
vault. Dr. Laada recommended that evelyn be admitted for
confinement in the hospital because the wound in her vagina,
which was bleeding, had to be repaired. Due to financial
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constraints, Evelyn was not admitted into the Hospital that

day and went home with Emeterio to Barangay Balighot.
(pp.6-8,tsn Laada, January 4, 1995; pp. 15-16, ts, Obligar,
January 12, 1995).
10. Upon her examination of the victim on August 18, 1994,
Dr. Laada opined that "a lot of things will cause the
lacerated wound in the vagina." (p. 9, tsn, Laada, January
4, 1995). According to Dr. Laada, the vaginal laceration may
be caused (1) by trauma to the area, when a girl falls and hits
her genital area on a blunt instrument; (2) by medical
instrumentation, like the insertion of a speculum into the
vagina; or (3) by the insertion of blunt foreign object into the
vagina, like a finger or a penis of a man in full erection. (pp.
8-9, tsn, Laada, January 4, 1995).
11. On August 19, 1994, Emetario brought Evelyn back to the
Roxas Memorial General Hospital where she was attended
to by Dr. Machael Toledo, the resident physician on duty, who
found blood clots and minimal bleeding in the genital area.
Dr. Toledo " pack(ed) the area to prevent further bleeding
and (he) admitted the patient for possible repair of the
laceration and blood transfusion because she has anaemia
2ndary to bleeding." Two hundred fifty five (255) cc of blood
was transfused to Evelyn and she was given antibiotics to
prevent infection. However, she was no longer operated on
because the laceration had healed. Five days later, Evelyn
was discharged and sent home with medication. (pp. 11-13,
17 and 26, tsn, Toledo, December 2, 1994).
12. Upon his examination of Evelyn on August 19, 1994, Dr.
Toledo disclosed that the child suffered severe compound
laceration which could have been caused by a normal and
fully developed penis of a man in a state of erection that was
forcibly inserted into her vagina and that the insertion caused

her vagina to hemorrhage which thus required the

transfusion of 255 cc of blood (pp. 14-16 and 26, tsn, Toledo,
December 2, 1994.
13. Prior to her confinement in the Roxas Memorial General
Hospital on August 19, Emetario and Penicola Obligar
brought Evelyn to the Maayon Police Station on August 18,
1994, where they reported the crime to SPO1 Paulino
Durana. That same day, appellant was apprehended in a
house near the Balighot Elementary School and brought to
the police station (pp17-19, tsn, Obligar, January 12, 1995;
pp. 5-9, 16-17 and 21, tsn, Durana, January 16, 1995).
(pp. 164-171, Rollo.)
Denial is presented as the defenses. Accused-appellant testified that
when he arrived at the Obligar residence that afternoon of August 16,
1994, he found the two children, Evelyn and Eleazar (also referred to
in the record as Pilfo). While seated at the balcony, accusedappellant was approached by Evelyn, who knew him (tsn, April 5,
1995, pp.5 and 8). He cajoled her by throwing her up and down, his
right hand holding the child and his left hand covering her vagina
(Ibid., p. 21). Upon lifting up the child the first time, his left ring finger
was accidentally inserted into the vagina of child since his fingernail
was long and the child was not wearing any underwear.
Consequently, Evelyn began to cry because her vagina started to
bleed. Upon seeing this, he immediately went down the house and got
some bark or leaves of madre de cacao tree and applied the sap on
the child's wound. The bleeding ceased and Evelyn stopped crying.
Thereafter, accused-appellant went home. (Ibid., pp.9-10).
Accused-appellant further testified that on August 18, 1994, at around
9 o'clock in the morning, he was arrested. On the same day, Emeterio
Obligar asked him to admit the offense so that he could be released
the next day, but accused-appellant did not do so (Ibid., pp. 26-27).
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Accused-appellant's father Raul Galleno was called to the witness

stand and he testified that he learned about the arrest of his son on
August 18, 1994 (tsn, May 12, 1995, p.6). The following day, he went
to the house of the Obligars to ask Evelyn what happened to her. The
child allegedly answered that a finger was accidentally inserted into
her genital organ, but that Penicola who was then present, butted into
the conversation and told Raul Galleno that the penis of accusedappellant was likewise inserted (Ibid., p.8).
The trial court did not accord credence to the version of the defense,
pointing out in its decision that accused-appellant's defense of denial
hinged on the argument that the statement of Evelyn as to how she
sustained her vaginal laceration was mere concoction and a plain
distortion of facts by her guardian. The trial court called this a
"desperate attempt of the defense to becloud the charge of rape."
The trial court believed and accepted the testimony of Police Officer
Paulino Durana that during the interrogation of Evelyn which he
conducted at the PNP Station of Maayon, Emeterio and Penicola
Obligar did not interfere with the responses of Evelyn, although, true
enough, it was difficult to obtain answer from her because of her
tender age.
The trial deemed the following circumstances significant in finding
accused-appellant culpable:
1.
Accused-appellant failed to explain how his left finger
accidentally came in contact with Evelyn's vagina, while in the
process of throwing her up and down. Besides, the prosecution was
able to establish that Evelyn was wearing shorts. And assuming for
the sake of argument that Evelyn was not wearing any pants or
underwear at that time, accused-appellant failed to explain how his
finger could possibly penetrate the victim's vagina by about onefourth of an inch (p. 23, tsn, April 5, 1995).

2.
After satisfying his lust, accused-appellant left the victim with
her 3-year old brother, in pain and bleeding.
3.
Evelyn's statement given to Dr. Ma. Lourdes Laada, the
physician who examined her at the Roxas Memorial General Hospital,
that it was accused-appellant's finger which injured her, was a
consequence of the victim's confusion.
4.
The formal offer of settlement made by accused-appellant's
father Raul Galleno militates against the cause of the defense.
Hence, the instant appeal and review, with accused-appellant
assigning the following errors:
THE TRIAL COURT ERRED IN GIVING FULL WEIGHT AND
CREDENCE TO THE TESTIMONIES OF THE MEDICAL
DOCTORS WHEN THE SAME FAILED TO CONCLUSIVELY
AND SUFFICIENTLY ESTABLISH THE CAUSE OF THE
LACERATION IN THE OFFENDED PARTY'S VAGINA
THE TRIAL COURT SHOWED MANIFEST BIAS THEREBY
DEPRIVING THE ACCUSED-APPELLANT TO A FAIR AND
IMPARTIAL TRIAL AND DISREGARDED THE RIGHT OF
THE ACCUSED TO BE PRESUMED INNOCENT, WHEN HE
ACTIVELY PARTICIPATED IN THE CROSS
EXAMINATIUON OF THE ACCUSED
THE TRIAL COURT ERRED IN NOT DECLARING THE
WARRANTLESS ARREST OF THE ACCUSED AS
UNJUSTIFIED
THE TRIAL COURT ERRED IN INTERPRETING THE
FINANCIAL ASSISTANCE EXTENDED BY THE PARENTS
OF THE ACCUSED TO THE OFFENDED PARTY AS AN
IMPLIED ADMISSION OF GUILT
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(pp. 81-82, Rollo.)

One can not escape the feeling of utmost compassion for any rape
victim, and more especially so for a 5-year old statutory rape victim.
However, in our consideration of the matter before us, we set aside
emotion and observe impartiality and coldness in drawing
conclusions.
Under the first assigned error, accused-appellant contends that the
testimony of the three expert witnesses presented by the prosecution,
namely, Dr. Alfonso Orosco, Dr. Ma. Lourdes Laada, and Dr.
Machael Toledo, which convinced the trial court that rape was
committed against the offended party, is not impeccable considering
that they found that there was no presence of spermatozoa, and that
they were not sure as to what caused the laceration in the victim's
vagina; that Dr. Laada herself testified that Evelyn told her that it was
the finger of accused-appellant which caused the laceration. In
addition, accused-appellant banks on the victim's testimony on crossexamination, that it was the finger of accused-appellant which caused
the laceration; and that she even disclosed this to accused-appellant's
father, Raul Galleno.
We are not persuaded.
As a general rule, witnesses must state facts and not draw
conclusions or give opinions. It is the court's duty to draw conclusions
from the evidence and form opinions upon the facts proved
(Francisco, Pleadings and Trial Practice, Vol. I. 1989 ed., pp. 889890). However, conclusions and opinions of witnesses are received in
many cases, and are not confined to expert testimony, based on the
principle that either because of the special skill or expert knowledge of
the witness, or because of the nature of the subject matter under
observation, of for other reasons, the testimony will aid the court in
reaching a judgment. (Ibid., p.886).

In the case at bar, the trial court arrived at its conclusions not only with
the aid of the expert testimony of doctors who gave their opinions as
to the possible cause of the victim's laceration, but also the testimony
of the other prosecution witness, especially the victim herself. In other
words, the trial court did not rely solely on the testimony of the expert
witnesses. Such expert testimony merely aided the trial court in the
exercise of its judgment on the facts. Hence, the fact that the experts
enumerated various possible causes of the victim's laceration does
not mean the trial court's interference is wrong.
The absence of spermatozoa in the victim's vagina does not negate
the conclusion that it was his penis which was inserted in the victim's
vagina (People vs. Caada, 253 SCRA 277 [1996]). In rape, the
important consideration is not the emission of semen but the
penetration of the female genitalia by the male organ (People vs.
Dadles, 254 SCRA 696 [1996]). Verily, it is entirely probable that
climax on the part of accused-appellant was not reached due to the
cries of pain of the victim and the profuse bleeding of her vagina.
As regards the inconsistencies in Evelyn's declaration, particularly as
to what really caused the laceration, we are convinced that the child,
due to her tender age, was just confused. This is best exemplified by
the testimony of Dr. Lourdes Laada on cross-examination, as
follows:
Q
Now, Doctor, at the time that you conducted your examination,
you were aware that this child was only five years old?
A

Yes, sir.

Q
And at that tender age, Doctor, is it possible that the child may
not know the difference of distinction between fingers of the hands
and a finger protruding between the legs of a person?
A

Yes, sir, it is possible.

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Q
So that is possible, Doctor, that the child may have referred to
a finger that is between the legs?
WITNESS
You mean the penis?

impact of events and testimony colored by the unconscious

workings of the mind. No better test has yet been found to
measure the value of a witness' testimony than its conformity
to the knowledge and common experience of mankind.
(pp.42-43, Rollo.)

PROSECUTOR OBIENDA
Yes.
WITNESS
It is possible.
(TSN, p.27, March 30,
1995.)
Of vital consideration and importance too is the unreliability, if not the
outright incredulity of the version of accused-appellant which is not in
accord with ordinary human experience. We thus can not help
expressing sentiments similar of those of the trial court when is said:
The contention of accused Joeral Galleno raises serious
doubts to his credibility. He failed to explain how his ring
finger accidentally came in contact with the genitalia of
Evelyn, while it was established by the prosecution that at
that time Evelyn was wearing shorts. Even assuming "ex
gratia argumente" that Evelyn was pantyless, how could it be
possible for his finger to penetrate to the vagina for about
one-fourth of an inch when she was in shorts. The
Supreme Court, in People vs. Fulgencio Baquiran, 20 SCRA
451, (held that) evidence, to be believed must not only
proceed from the mouth of a credible witness, but it must be
credible in itself. Human perception can be warped by the

Section 4, Rule 128 of the Rules of Court provides that "(e)vidence

must have such a relation to the fact in issue as to induce belief in its
existence or nor-existence." This simply means that relevancy is
determinable by the rules of logic and human experience (Regalado,
Remedial Law Compendium, Vol. II, 1988 ed., p.434). There is no
precise and universal test of relevancy provided by law. However, the
determination of whether particular evidence is relevant rests largely
at the discretion of the court, which must be exercised according to
the teachings of logic and everyday experience (Sibal and Salazar,
Compendium on Evidence, 1995 ed., citing Alfred Asmore Pope
Foundation vs. New York, 138 A. 444, 106 Conn. 432).
There is no explanation how the left ring finger (allegedly with long
fingernail) of accused-appellant penetrated the victim's vagina by a
depth of one fourth of an inch. Admittedly, accused-appellant's right
hand held the child while his left hand supposedly held her in the
vagina area. Why would the hold the child's vagina if his only
intention was to frolic and kid around with her?
Accused-appellant likewise failed to explain why after injuring Evelyn
(and after applying to the wound the sap of madre de cacao), he left
her in the company of an even younger child, the victim's 3-year old
brother. He did not even make an effort to immediately inform
Emeterio and Penicola of what happened. Instead, he went home
and kept mum about the incident.
Accused-appellant also said that after the alleged accident, before
going home, he removed Eleazar's shorts and put them on Evelyn.
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Assuming this to be true, this only shows that the child was still
bleeding. Why then would he leave the child considering that there
was no adult to attend her? Significantly, his act of immediately
leaving the place, when considered in the light of the other evidence,
reflects his fear because of what he had done. The proverb "the
wicked fleeth even when no man pursueth, but the innocent are as
bold as a lion" was correctly adopted by the trial court in drawing its
conclusions.
All of these loopholes are palpable and manifest, and clearly work
against the credibility of accused-appellant's story on which his
defense is based.

FISCAL OBIENDA
Q
You said that Joeral Galleno the accused in this case hurt you
while you were in the farm, can you tell in the farm, can you tell the
Honorable Court which part of your body was hurt by Joeral Galleno?
A

(Witness pointing to her vagina) Here.

When you said you were hurt did you bleed?

WITNESS
A

Besides, the trial court's conclusions finds supports in the testimony of

accused-appellant's own witness, Dr. Lourdes Laada (who was
earlier presented during the trial as a prosecution witness), who
testified that a laceration is caused by a blunt instrument and that a
fingernail is not a blunt but a sharp instrument (TSN, pp.32-33, March
30, 1995).
As regards accused-appellant's argument that the victim's testimony
is just a concocted story of what really happened, we apply the rule
that the revelation of an innocent child whose chastity was abused
deserves full credence (People vs. Cagto, 253 SCRA 455 [1996]).
We likewise consider the fact that her uncle and aunt, virtually her
foster parents, themselves support her story of rape. It is unnatural
for a parent to use her offspring as an engine of malice, especially if it
will subject a daughter to embarrassment and even stigma (People
vs. Dones, supra.)
Accused-appellant's father, Raul Galleno, tried to destroy the
credibility of Evelyn when he took the stand and testified that the child
disclosed to him that is was accused-appellant's finger which was
inserted into her vagina. Nevertheless, this testimony cannot prevail
over the testimony of the victim, to wit:

Yes, Sir.

FISCAL OBIENDA
Q

What was used by Joeral Galleno in hurting your sexual organ

His (Pitoy). Penis.

COURT
Make the translation of "Pitoy" into Penis. Do you agree that the
translation of Pitoy is Penis in English?
ATTY. DISTURA
Agreeable, Your Honor.
FISCAL OBIENDA
Q
What did Joeral Galleno do with his Pitoy (Penis) to your
vagina (Putay)?
A

It was inserted (ginsulod) to my vagina (Putay).

NJQ

10

Q
When Joeral Galleno inserted his penis (Pitoy) to your vagina
(Putay), that was the reason why it bleed?
A

Yes, sir.

And it was very painful?

Yes, Sir.

And you cried because of pain?

Yes, Sir.

FISCAL OBIENDA
Q
And you were brought to the Doctor and admitted to the
hospital because of that?
A

Yes, Sir.
(TSN, pp.10-12, January 10, 1995)

Under the second assigned error, accused-appellant alleges that he

was deprived of a fair and impartial trial since the trial court showed
bias by discounting his testimony, and by actually participating in the
cross-examination of accused-appellant.
We recently pronounced in People vs. Malabago (265 SCRA 198
[1996]) that a judge may not properly intervene in the presentation of
evidence to expedite and prevent unnecessary waste of time and
clarify obscure and incomplete details after the witness was given
direct testimony cannot be assailed as a specie of bias.
Of course, we are aware of Rule 3.06 of the Code of Judicial Conduct
provides:

While a judge may, to promote justice, prevent waste of time

or clear up some obscurity, properly intervene in the
presentation of evidence during the trial, it should always be
borne in mind that undue interference may prevent the
proper presentation of the cause or the ascertainment of
truth.
And there is undoubtedly undue interference if the judge extensively
propounds question to the witness which will have the effect of or will
tend to build or bolster the case for one of the parties. We have,
however, carefully examined the record and transcript of stenographic
notes of the instant case. The trial court judge, the Honorable
Salvador S. Gubaton, did not to build the case for one of the parties.
For instance, accused-appellant, in his brief, refers to the questions
propounded by the trial court on his of cajoling the child. A perusal of
the line of questioning referred to hardly shows bias on the part of the
trial court, but pure clarification.
In the third assigned error, accused-appellant questions the validity of
his arrest.
It is settled jurisprudence that any objection involving a warrant of
arrest or procedure in the acquisition by the court of jurisdiction over
the person of the accused must be made before he enters his plea,
otherwise the objection is deemed waived (People vs. Lopez, Jr., 245
SCRA 95[1995]). An accused should question the validity of his arrest
before he enters his plea in the trial court (Filoteo, Jr. vs.
Sandiganbayan, 263 SCRA 222 [1996]). He is estopped from
questioning any defect in the manner of his arrest if he fails to move
for the quashing of the information before the trial court (People vs.
Compil, 244 SCRA 135 [1995]) or if he voluntarily submits himself to
the jurisdiction of the court by entering a plea and by participating in
the trial (People vs. De Guzman, 22 4 SCRA 93 [1993); People vs.
Lopez, Jr., supra).
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11

It does not appear in the record that accused-appellants raised this

matter before entering his plea of "not guilty" to the charge (pp. 63 &
67, Record). Further, this issue was not even touched during the trial.
Lastly, accused-appellant, in his fourth assigned error, argues that the
trial court misinterpreted the financial assistance extended by his
parents as an attempt to settle the case. Accused-appellant even
banks on the alleged close relationship between Emeterio Obligar and
Raul Galleno as compadres, and the fact that Emeterio borrowed forty
pesos from Raul Galleno, despite the fact that Emeterio already knew
that accused-appellant caused the laceration in Evelyn's vagina.
Accused-appellant also draws attention to two incidents involving
alleged financial assistance extended by Raul Galleno to the spouses
Emeterio and Penicola Obligar. First, Emeterio Obligar, whom Raul
Galleno said is his compadre, borrowed P40.00 for fare going Roxas
City where Evelyn was confined. Decond, on August 20, 1994, Raul
Galleno and his wife and one of the brothers of Penicola Obligar went
to Roxas Memorial General Hospital. There he gave P400.00 financial
assistance to Penicola Obligar. Raul Galleno later admitted that the
sum of P440.00 was returned to him by the spouses. Accusedappellant insists that these offers of financial assistance were not
attempts at an amicable settlement but were prompted out of a
sincere desire on the part of Raul Galleno to help the offended party.
We find no merit in the above-stated argument. It may be inferred that
Raul Galleno wanted to settle the case by offering an amount to the
spouses Obligar, to wit:
Q
Now according to you, you were paid in the amount of Four
Hundred Pesos (P400.00) then you expected your Comareng Pening
as financial assistance to Evelyn Garganera, isn't it?
A

Yes, Your Honor.

Q
How long after August 19, 1994, that your Comareng Pening
returned to you the amount of Four Hundred Pesos (P400.00)?
A
A week after when Evelyn had already checked up from the
hospital.
Q
It was given by you or as voluntary financial assistance, why
did you receive the amount or the payment returned to that amount of
Four Hundred Pesos (P400.00)?
A
That was telling me that they refused already for the
settlement of the case.
Q
And that is why they returned the amount of Four Hundred
Pesos (P400.00).
(tsn, pp. 29-30, May 12, 1995.)
From the above-stated clarificatory questions by the trial court, it may
gleaned that Raul Galleno no longer had any interest in aiding the
victim when he found that the Obligar spouses would still pursue the
case against his son, accused-appellant, and hence he found that his
offer for settlement was unavailing. Hence, on this point we likewise
agree with the trial court when it took the financial assistance to mean
an act of settling the case. This does manifest a father's attempt to
rescue his guilty son sure incarceration.
The nightmare that was forced into the tender mind of 5-year old
Evelyn Obligar Garganera may fortunately haunt her all her life.
Justice may not be able to save from this nightmare but it can calm
and assure her that her tormentor and abuser shall undoubtedly face
retribution.
Four members of the Court - although maintaining their adherence to
the separate opinions expressed in People vs. Echegaray (G.R. No.
NJQ

12

117472, February 7, 1997) that Republic Act No. 7659, insofar as it

prescribes the death penalty is unconstitutional - nevertheless submit
to the ruling of the Court, by a majority vote, that the law is
constitutional and that the death penalty should accordingly be
imposed.
WHEREFORE, finding the conviction of accused-appellant justified by
the evidence on record, the assailed decision is hereby AFFIRMED in
toto.
In accordance with Section 25 of Republic Act No. 7659, amending
Article 83 of the Revised Penal Code, upon finality of this decision, let
the record of the case be forthwith forwarded to the Office of the
President for possible exercise of the pardoning power.

CECILIA ZULUETA, petitioner,

vs.
COURT OF APPEALS and ALFREDO MARTIN, respondents.

SO ORDERED.

DECISION
MENDOZA, J.:
This is a petition to review the decision of the Court of Appeals,
affirming the decision of the Regional Trial Court of Manila (Branch X)
which ordered petitioner to return documents and papers taken by her
from private respondent's clinic without the latter's knowledge and
consent.
The facts are as follows:
Petitioner Cecilia Zulueta is the wife of private respondent Alfredo
Martin. On March 26, 1982, petitioner entered the clinic of her
husband, a doctor of medicine, and in the presence of her mother, a
driver and private respondent's secretary, forcibly opened the drawers
and cabinet in her husband's clinic and took 157 documents
consisting of private correspondence between Dr. Martin and his
alleged paramours, greetings cards, cancelled checks, diaries, Dr.
Martin's passport, and photographs. The documents and papers were
seized for use in evidence in a case for legal separation and for
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13

disqualification from the practice of medicine which petitioner had filed

against her husband.
Dr. Martin brought this action below for recovery of the documents
and papers and for damages against petitioner. The case was filed
with the Regional Trial Court of Manila, Branch X, which, after trial,
rendered judgment for private respondent, Dr. Alfredo Martin,
declaring him "the capital/exclusive owner of the properties described
in paragraph 3 of plaintiff's Complaint or those further described in the
Motion to Return and Suppress" and ordering Cecilia Zulueta and any
person acting in her behalf to a immediately return the properties to
Dr. Martin and to pay him P5,000.00, as nominal damages;
P5,000.00, as moral damages and attorney's fees; and to pay the
costs of the suit. The writ of preliminary injunction earlier issued was
made final and petitioner Cecilia Zulueta and her attorneys and
representatives were enjoined from "using or submitting/admitting as
evidence" the documents and papers in question. On appeal, the
Court of Appeals affirmed the decision of the Regional Trial Court.
Hence this petition.
There is no question that the documents and papers in question
belong to private respondent, Dr. Alfredo Martin, and that they were
taken by his wife, the herein petitioner, without his knowledge and
consent. For that reason, the trial court declared the documents and
papers to be properties of private respondent, ordered petitioner to
return them to private respondent and enjoined her from using them in
evidence. In appealing from the decision of the Court of Appeals
affirming the trial court's decision, petitioner's only ground is that in
Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled that the
documents and papers (marked as Annexes A-1 to J-7 of
respondent's comment in that case) were admissible in evidence and,
therefore, their use by petitioner's attorney, Alfonso Felix did not
constitute malpractice or gross misconduct, For this reason it is
contended that the Court of Appeals erred in affirming the decision of
the trial court instead of dismissing private respondent's complaint.
Petitioner's contention has no merit. The case against Atty. Felix, Jr.
was for disbarment. Among other things, private respondent, Dr.
Alfredo Martin, as complainant in that case, charged that in using the
documents in evidence, Atty. Felix, Jr. committed malpractice or gross

misconduct because of the injunctive order of the trial court. In

dismissing the complaint against Atty. Felix, Jr., this Court took note of
the following defense of Atty. Felix; Jr. which it found to be "impressed
with merit:"2
On the alleged malpractice or gross misconduct of respondent
[Alfonso Felix, Jr.], he maintains that:

....
4. When respondent refiled Cecilia's case for legal separation
before the Pasig Regional Trial Court, there was admittedly an
order of the Manila Regional Trial Court prohibiting Cecilia
from using the documents Annex "A-1 to J-7." On September
6, 1983, however having appealed the said order to this Court
on a petition for certiorari, this Court issued a restraining order
on aforesaid date which order temporarily set aside the order
of the trial court. Hence, during the enforceability of this
Court's order, respondent's request for petitioner to admit the
genuineness and authenticity of the subject annexes cannot
be looked upon as malpractice. Notably, petitioner Dr. Martin
finally admitted the truth and authenticity of the questioned
annexes, At that point in time, would it have been malpractice
for respondent to use petitioner's admission as evidence
against him in the legal separation case pending in the
Regional Trial Court of Makati? Respondent submits it is not
malpractice.
Significantly, petitioner's admission was done not thru his
counsel but by Dr. Martin himself under oath, Such verified
admission constitutes an affidavit, and, therefore, receivable in
evidence against him. Petitioner became bound by his
admission. For Cecilia to avail herself of her husband's
admission and use the same in her action for legal separation
cannot be treated as malpractice.

NJQ

14

Thus, the acquittal of Atty. Felix, Jr. in the administrative case

amounts to no more than a declaration that his use of the documents
and papers for the purpose of securing Dr. Martin's admission as to
their genuiness and authenticity did not constitute a violation of the
injunctive order of the trial court. By no means does the decision in
that case establish the admissibility of the documents and papers in
question.

while the marriage subsists.6 Neither may be examined without the

consent of the other as to any communication received in confidence
by one from the other during the marriage, save for specified
exceptions.7 But one thing is freedom of communication; quite another
is a compulsion for each one to share what one knows with the other.
And this has nothing to do with the duty of fidelity that each owes to
the other.

It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the

charge of violating the writ of preliminary injunction issued by the trial
court, it was only because, at the time he used the documents and
papers, enforcement of the order of the trial court was temporarily
restrained by this Court. The TRO issued by this Court was eventually
lifted as the petition for certiorari filed by petitioner against the trial
court's order was dismissed and, therefore, the prohibition against the
further use of the documents and papers became effective again.

WHEREFORE, the petition for review is DENIED for lack of merit.

Indeed the documents and papers in question are inadmissible in

evidence. The constitutional injunction declaring "the privacy of
communication and correspondence [to be] inviolable"3 is no less
applicable simply because it is the wife (who thinks herself aggrieved
by her husband's infidelity) who is the party against whom the
constitutional provision is to be enforced. The only exception to the
prohibition in the Constitution is if there is a "lawful order [from a] court
or when public safety or order requires otherwise, as prescribed by
law."4 Any violation of this provision renders the evidence obtained
inadmissible "for any purpose in any proceeding." 5
The intimacies between husband and wife do not justify any one of
them in breaking the drawers and cabinets of the other and in
ransacking them for any telltale evidence of marital infidelity. A person,
by contracting marriage, does not shed his/her integrity or his right to
privacy as an individual and the constitutional protection is ever
available to him or to her.
The law insures absolute freedom of communication between the
spouses by making it privileged. Neither husband nor wife may testify
for or against the other without the consent of the affected spouse

SO ORDERED.

Article III, Sections 2, 3, 12 (1) (2) (3), 1987 Philippine Constitution

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BERNARDINO DOMANTAY, @ "JUNIOR OTOT," accused-appellant.

MENDOZA, J.:
This case is here on appeal from the decision 1 of the Regional Trial
Court of Dagupan City (Branch 57), finding accused-appellant guilty of
rape with homicide and sentencing him to death, and to indemnify the
heirs of the victim in the amount of P480,000.00, and to pay the costs.
The facts hark back to the afternoon of October 17, 1996, at around 4
o'clock, when the body of six-year old Jennifer Domantay was found
sprawled amidst a bamboo grove in Guilig, Malasiqui, Pangasinan.
NJQ

15

The child's body bore several stab wounds. Jennifer had been
missing since lunch time.
The medical examination conducted the following day by Dr. Ma. Fe
Leticia Macaranas, the rural health physician of Malasiqui, showed
that Jennifer died of multiple organ failure and hypovolemic shock
secondary to 38 stab wounds at the back. Dr. Macaranas found no
lacerations or signs of inflammation of the outer and inner labia and
the vaginal walls of the victim's genitalia, although the vaginal canal
easily admitted the little finger with minimal resistance. Noting
possible commission of acts of lasciviousness, Dr. Macaranas
recommended an autopsy by a medico-legal expert of the NBI. 2
The investigation by the Malasiqui police pointed to accused-appellant
Bernardino Domantay, a cousin of the victim's grandfather, as the lone
suspect in the gruesome crime. At around 6:30 in the evening of that
day, police officers Montemayor, de la Cruz, and de Guzman of the
Malasiqui Philippine National Police (PNP) picked up accusedappellant at the Malasiqui public market and took him to the police
station where accused-appellant, upon questioning by SPO1 Antonio
Espinoza, confessed to killing Jennifer Domantay. He likewise
disclosed that at around 3:30 that afternoon, he had given the fatal
weapon used, a bayonet, to Elsa and Jorge Casingal, his aunt and
uncle respectively, in Poblacion Sur, Bayambang, Pangasinan. The
next day, October 18, 1996, SPO1 Espinoza and another policeman
took accused-appellant to Bayambang and recovered the bayonet
from a tricycle belonging to the Casingal spouses. The police officers
executed a receipt to evidence the confiscation of the weapon. 3
On the basis of the post-mortem findings of Dr. Macaranas, SPO4
Juan Carpizo, the Philippine National Police chief investigator at
Malasiqui, filed, on October 21, 1996, a criminal complaint for murder
against accused-appellant before the Municipal Trial Court (MTC) of
Malasiqui. On October 25, 1996, Dr. Ronald Bandonill, medico-legal
expert of the NBI, performed an autopsy on the embalmed body of

Jennifer. The result of his examination of the victim's genitalia

indicated that the child's hymen had been completely lacerated on the
right side. Based on this finding, SPO4 Carpizo amended the criminal
complaint against accused-appellant to rape with homicide.
Subsequently, the following information was filed: 4
That on or about the 17th day of October, 1996, in the
afternoon, in barangay Guilig, Municipality of Malasiqui,
province of Pangasinan, Philippines and within the
jurisdiction of this Honorable Court, the above-named
accused, with lewd design and armed with a
bayonnete, did then and there, wilfully, unlawfully and
feloniously have sexual intercourse with Jennifer
Domantay, a minor of 6 years old against her will and
consent, and on the same occasion, the said accused
with intent to kill, then and there, wilfully, unlawfully and
feloniously stab with the use of a bayonnete, the said
Jennifer Domantay, inflicting upon her multiple stab
wounds, which resulted to her death, to the damage
and prejudice of her heirs.
At the trial, the prosecution presented seven witnesses, namely,
Edward, Jiezl, Lorenzo, all surnamed Domantay, Joselito Mejia,
Antonio Espinoza, Celso Manuel, and Dr. Ronald Bandonill, to
establish its charge that accused-appellant had raped and killed
Jennifer Domantay.
Edward Domantay testified that in the morning of October 17, 1996,
accused-appellant and his two brothers-in-law, Jaime Caballero and
Daudencio Macasaeb, had a round of drinks in front of the latter's
house in Guilig, Malasiqui, Pangasinan. Edward Domantay said that
he was in front of Macasaeb's house, tending to some pigeons in his
yard. 5 After the group had consumed several bottles of San Miguel
gin, accused-appellant gave money to Edward Domantay and asked
him to buy two bottles of gin and a bottle of Sprite. 6 Edward said he
NJQ

16

joined the group and sat between Daudencio Macasaeb and accusedappellant. 7 Edward said that accused-appellant, who, apparently had
one too many then, rolled up his shirt and said: "No diad Antipolo tan
L[i]pa et walay massacre, diad Guilig wala, walay massacren kod dia,
walay onakis-akis" ("In Antipolo and Lipa, there were massacres; here
in Guilig, there will also be a massacre. I will massacre somebody
here, and they will cry and cry"). Edward Domantay saw that tucked in
the left side of accused-appellant's waistline was a bayonet without a
cover handle. 8 It was not the first time that Edward had seen
accused-appellant with the knife as the latter usually carried it with
him. 9
Jiezl Domantay, 10, likewise testified. She said that, at about 2 o'clock
in the afternoon on October 17, 1996, she and four other children
were playing in front of their house in Guilig, Malasiqui, Pangasinan.
Jiezl saw accused-appellant and Jennifer Domantay walking towards
the bamboo grove of Amparo Domantay where Jennifer's body was
later found. Accused-appellant was about two meters ahead of
Jennifer. The bamboo grove was about 8 to 10 meters from the house
of Jiezl Domantay. 10
Lorenzo Domantay, a relative of the victim, corroborated Jiezl's
testimony that accused-appellant had gone to Amparo Domantay's
bamboo grove in the afternoon of October 17, 1996. Lorenzo said that
afternoon, on his way to his farm, he saw accused-appellant about 30
meters away, standing at the spot in the bamboo grove where
Jennifer's body was later found. Accused-appellant appeared restless
and worried as he kept looking around. However, as Lorenzo was in a
hurry, he did not try to find out why accused-appellant appeared to be
nervous. 11
Prosecution witness Joselito Mejia, a tricycle driver, said that, in the
afternoon of October 17, 1996, he was about to take his lunch at
home in Alacan, a neighboring barangay about half a kilometer from
Guilig, when accused-appellant implored Mejia to take him to

Malasiqui at once. Mejia told accused-appellant that he was going to

take his lunch first, but the latter pleaded with him, saying they will not
be gone for long. Mejia, therefore, agreed. Mejia noticed that
accused-appellant was nervous and afraid. Accused-appellant later
changed his mind. Instead of going to the town proper, he alighted
near the Mormon's church, outside Malasiqui. 12
In addition, the prosecution presented SPO1 Antonio Espinoza and
Celso Manuel who testified that, on separate occasions, accusedappellant had confessed to the brutal killing of Jennifer Domantay.
SPO1 Espinoza testified that he investigated accused-appellant after
the latter had been brought to the Malasiqui police station in the
evening of October 17, 1996. Before he commenced his questioning,
he apprised accused-appellant of his constitutional right to remain
silent and to have competent and independent counsel, in English,
which was later translated into Pangasinense. 13 According to SPO1
Espinoza, accused-appellant agreed to answer the questions of the
investigator even in the absence of counsel and admitted killing the
victim. Accused-appellant also disclosed the location of the bayonet
he used in killing the victim. 14 On cross-examination, Espinoza
admitted that at no time during the course of his questioning was
accused-appellant assisted by counsel. Neither was accusedappellant's confession reduced in writing. 15 Espinoza's testimony was
admitted by the trial court over the objection of the defense.
Celso Manuel, for his part, testified that he is a radio reporter of
station DWPR, an AM station based in Dagupan City. He covers the
third district of Pangasinan, including Malasiqui. Sometime in October
1996, an uncle of the victim came to Dagupan City and informed the
station about Jennifer Domantay's case. 16 On October 23, 1996,
Manuel went to Malasiqui to interview accused-appellant who was
then detained in the municipal jail. He described what transpired
during the interview thus: 17
NJQ

17

PROS. QUINIT:

PROS. QUINIT:

Q Did you introduce yourself as a media

practitioner?

Q You mentioned about accused

admitting to you on the commi[ssion] of
the crime, how did you ask him that?

A Yes, sir.
A I asked him very politely.
Q How did you introduce yourself to the
accused?
A I showed to Bernardino Domantay
alias "Junior Otot" my I.D. card and I
presented myself as a media
practitioner with my tape recorder [in]
my hand, sir.
Q What was his reaction to your request
for an interview?
A He was willing to state what had
happened, sir.
Q What are those matters which you
brought out in that interview with the
accused Bernardino Domantay alias
"Junior Otot"?
A I asked him what was his purpose for
human interest's sake as a reporter, why
did he commit that alleged crime. And I
asked also if he committed the crime
and he answered "yes." That's it.
xxx xxx xxx

Q More or less what have you asked

him on that particular matter?
A I asked "Junior Otot," Bernardino
Domantay, "Kung pinagsisisihan mo ba
ang iyong ginawa?" "Opo" sabi niya,
"Ibig mo bang sabihin Jun, ikaw ang
pumatay kay Jennifer?", "Ako nga po"
The [l]ast part of my interview, "Kung
nakikinig ang mga magulang ni Jennifer,
ano ang gusto mong iparating?", "kung
gusto nilang makamtan ang hustisya ay
tatanggapin ko". That is what he said,
and I also asked Junior Otot, what was
his purpose, and he said, it was about
the boundary dispute, and he used that
little girl in his revenge.
On cross-examination, Manuel explained that the interview was
conducted in the jail, about two to three meters away from the police
station. An uncle of the victim was with him and the nearest policemen
present were about two to three meters from him, including those who
were in the radio room. 18 There was no lawyer present. Before
interviewing accused-appellant, Manuel said he talked to the chief of
police and asked permission to interview accused-appellant. 19 On
questioning by the court, Manuel said that it was the first time he had
been called to testify regarding an interview he had conducted. 20 As
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18

in the case of the testimony of SPO1 Espinoza, the defense objected

to the admission of Manuel's testimony, but the lower court allowed it.

bayonet tucked in his waistline and that he had said he would

massacre someone in Guilig. 27

Dr. Bandonill, the NBI medico-legal who conducted an autopsy of the

victim on October 25, 1996, testified that Jennifer Domantay died as a
result of the numerous stab wounds she sustained on her back, 21 the
average depth of which was six inches. 22 He opined that the wounds
were probably caused by a "pointed sharp-edged instrument." 23 He
also noted on the aforehead, neck, and breast bone of the victim. 24
As for the results of the genital examination of the victim, Dr. Bandonill
said he found that the laceration on the right side of the hymen was
caused within 24 hours of her death. He added that the genital area
showed signs of inflammation. 25

Accused-appellant also confirmed that, at about 2 o'clock in the

afternoon, he went to Alacan passing on the trail beside the bamboo
grove of Amparo Domantay. But he said he did not know that Jennifer
Domantay was following him. He further confirmed that in Alacan, he
took a tricycle to Malasiqui. The tricycle was driven by Joselito Mejia.
He said he alighted near the Mormon church, just outside of the town
proper of Malasiqui to meet his brother. As his brother did not come,
accused-appellant proceeded to town and reported for work. That
night, while he was in the Malasiqui public market, he was picked up
by three policemen and brought to the Malasiqui police station where
he was interrogated by SPO1 Espinoza regarding the killing of
Jennifer Domantay. He denied having owned to the killing of Jennifer
Domantay to SPO1 Espinoza. He denied he had a grudge against the
victim's parents because of a boundary dispute. 28 With respect to his
extrajudicial confession to Celso Manuel, he admitted that he had
been interviewed by the latter, but he denied that he ever admitted
anything to the former. 29

Pacifico Bulatao, the photographer who took the pictures of the scene
of the crime and of the victim after the latter's body was brought to her
parents' house, identified and authenticated the five pictures (Exhibits
A, B, C, D, and E) offered by the prosecution.
The defense then presented accused-appellant as its lone witness.
Accused-appellant denied the allegation against him. He testified he is
an uncle of Jennifer Domantay (he and her grandfather are cousins)
and that he worked as a janitor at the Malasiqui Municipal Hall. He
said that at around 1 o'clock in the afternoon of October 17, 1996, he
was bathing his pigs outside in the house of his brother-in-law
Daudencio Macasaeb in Guilig, Malasiqui, Pangasinan. He confirmed
that Daudencio was then having drinks in front of his (Macasaeb's)
house. Accused-appellant claimed, however, that he did not join in the
drinking and that it was Edward Domantay, whom the prosecution had
presented as witness, and a certain Jaime Caballero who joined the
party. He also claimed that it was he whom Macasaeb had requested
to buy some more liquor, for which reason he gave money to Edward
Domantay so that the latter could get two bottles of gin, a bottle of
Sprite, and a pack of cigarettes. 26 He denied Edward Domantay's
claim that he (accused-appellant) had raised his shirt to show a

As already stated, the trial court found accused-appellant guilty as

charged. The dispositive portion of its decision reads: 30
WHEREFORE, in light of all the foregoing, the Court
hereby finds the accused, Bernardino Domantay @
"Junior Otot" guilty beyond reasonable doubt with the
crime of Rape with Homicide defined and penalized
under Article 335 of the Revised Penal Code in relation
and as amended by Republic Act No. 7659 and
accordingly, the Court hereby sentences him to suffer
the penalty of death by lethal injection, and to
indemnify the heirs of the victim in the total amount of
Four Hundred Eighty Thousand Pesos (P480,000.00),
31
and to pay the costs.
NJQ

19

SO ORDERED.

xxx xxx xxx

In this appeal, accused-appellant alleges that: 32

I
THE COURT A QUO ERRED IN APPRECIATING THE
EXTRAJUDICIAL CONFESSION[S] MADE BY THE
ACCUSED-APPELLANT.
II
THE COURT A QUO ERRED IN CONVICTING THE
ACCUSED DESPITE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.
First. Accused-appellant contends that his alleged confessions to
SPO1 Antonio Espinoza and Celso Manuel are inadmissible in
evidence because they had been obtained in violation of Art. III,
12(1) of the Constitution and that, with these vital pieces of evidence
excluded, the remaining proof of his alleged guilt, consisting of
circumstantial evidence, is inadequate to establish his guilt beyond
reasonable doubt. 33
Art. III, 12 of the Constitution in part provides:
(1) Any person under investigation for the commission
of an offense shall have the right to be informed of his
right to remain silent and to have competent and
independent counsel preferably of his own choice. If
the person cannot afford the services of counsel, he
must be provided with one. These rights cannot be
waived except in writing and in the presence of
counsel.

(3) Any confession or admission obtained in violation of

this section or section 17 hereof shall be inadmissible
in evidence.
This provision applies to the stage of custodial investigation, that is,
"when the investigation is no longer a general inquiry into an unsolved
crime but starts to focus on a particular person as a suspect." 34 R.A.
No. 7438 has extended the constitutional guarantee to situations in
which an individual has not been formally arrested but has merely
been "invited" for questioning. 35
Decisions 36 of this Court hold that for an extrajudicial confession to be
admissible, it must satisfy the following requirements: (1) it must be
voluntary; (2) it must be made with the assistance of competent and
independent counsel; (3) it must be express; and (4) it must be in
writing.
In the case at bar, when accused-appellant was brought to the
Malasiqui police station in the evening of October 17, 1996, 37 he was
already a suspect, in fact the only one, in the brutal slaying of Jennifer
Domantay. He was, therefore, already under custodial investigation
and the rights guaranteed in Art. III, 12(1) of the Constitution applied
to him. SPO1 Espinoza narrated what transpired during accusedappellant's interrogation: 38
[I] interrogated Bernardino Domantay, prior to the
interrogation conducted to him, I informed him of his
constitutional right as follows; that he has the right to
remain silent; that he has the right to a competent
lawyer of his own choice and if he can not afford [a
counsel] then he will be provided with one, and further
informed [him] that all he will say will be reduced into
writing and will be used the same in the proceedings of
NJQ

20

the case, but he told me that he will cooperate even in

the absence of his counsel; that he admitted to me that
he killed Jennifer Domantay, and he revealed also the
weapon used [and] where he gave [it] to.
But though he waived the assistance of counsel, the waiver was
neither put in writing nor made in the presence of counsel. For this
reason, the waiver is invalid and his confession is inadmissible. SPO1
Espinoza's testimony on the alleged confession of accused-appellant
should have been excluded by the trial court. So is the bayonet
inadmissible in evidence, being, as it were, the "fruit of the poisonous
tree." As explained in People v. Alicando: 39
. . . According to this rule, once the primary source (the
"tree") is shown to have been unlawfully obtained, any
secondary or derivative evidence (the "fruit") derived
from it is also inadmissible. Stated otherwise, illegally
seized evidence is obtained as a direct result of the
illegal act, whereas the "fruit of the poisonous tree" is
at least once removed from the illegally seized
evidence, but it is equally inadmissible. The rule is
based the principle that evidence illegally obtained by
the State should not be used to gain other evidence
because the originally illegal obtained evidence taints
all evidence subsequently obtained.
We agree with the Solicitor General, however, that accusedappellant's confession to the radio reporter, Celso Manuel, is
admissible. In People v.
Andan, 40 the accused in a rape with homicide case confessed to the
crime during interviews with the media. In holding the confession
admissible, despite the fact that the accused gave his answers
without the assistance of counsel, this Court said: 41

[A]ppellant's [oral] confessions to the newsmen are not

covered by Section 12(1) and (3) of Article III of the
Constitution. The Bill of Rights does not concern itself
with the relation between a private individual and
another individual. It governs the relationship between
the individual and the State. The prohibitions therein
are primarily addressed to the State and its agents.
Accused-appellant claims, however, that the atmosphere in the jail
when he was interviewed was "tense and intimidating" and was
similar to that which prevails in a custodial investigation. 42 We are not
persuaded. Accused-appellant was interviewed while he was inside
his cell. The interviewer stayed outside the cell and the only person
besides him was an uncle of the victim. Accused-appellant could have
refused to be interviewed, but instead, he agreed. He answered
questions freely and spontaneously. According to Celso Manuel, he
said he was willing to accept the consequences of his act.
Celso Manuel admitted that there were indeed some police officers
around because about two to three meters from the jail were the
police station and the radio room. 43 We do not think the presence of
the police officers exerted any undue pressure or influence on
accused-appellant and coerced him into giving his confession.
Accused-appellant contends that "it is . . . not altogether improbable
for the police investigators to ask the police reporter (Manuel) to try to
elicit some incriminating information from the accused." 44 This is pure
conjecture. Although he testified that he had interviewed inmates
before, there is no evidence to show that Celso was a police beat
reporter. Even assuming that he was, it has not been shown that, in
conducting the interview in question, his purpose was to elicit
incriminating information from accused-appellant. To the contrary, the
media are known to take an opposite stance against the government
by exposing official wrongdoings.
NJQ

21

Indeed, there is no showing that the radio reporter was acting for the
police or that the interview was conducted under circumstances where
it is apparent that accused-appellant confessed to the killing our of
fear. As already stated, the interview was conducted on October 23,
1996, 6 days after accused-appellant had already confessed to the
killing to the police.
Accused-appellant's extrajudicial confession is corroborated by
evidence of corpus delicti, namely, the fact of death of Jennifer
Domantay. In addition, the circumstantial evidence furnished by the
other prosecution witnesses dovetails in material points with his
confession. He was seen walking toward the bamboo grove, followed
by the victim. Later, he was seen standing near the bamboo grove
where the child's body was found. Rule 133 of the Revised Rules on
Evidence provides:
3. Extrajudicial confession, not sufficient ground for
conviction. An extrajudicial confession made by an
accused, shall not be sufficient ground for conviction,
unless corroborated by evidence of corpus delicti.
4. Evidence necessary in treason cases. No
person charged with treason shall be convicted unless
on the testimony of two witnesses to the same overt
act, or on confession in open court.
Accused-appellant argues that it was improbable for a brutal killing to
have been committed without the children who were playing about
eight to ten meters from Amparo Domantay's grove, where the crime
took place, having heard any commotion. 45 The contention has no
merit. Accused-appellant could have covered the young child's mouth
to prevent her from making any sound. In fact, Dr. Bandonill noted a
five by two inch (5" x 2") contusion on the left side of the victim's
forehead, which he said could have been caused by a hard blunt
instrument or by impact as her head hit the ground. 46 The blow could

have rendered her unconscious, thus precluding her from shouting or

crying.
Accused-appellant also contends that the testimony of Jiezl Domantay
contradicts that of Lorenzo Domantay because while Jiezl said she
had seen accused-appellant walking towards the bamboo grove,
followed by the victim, at around 2 o'clock in the afternoon on October
17, 1996. Lorenzo said he saw accused-appellant standing near the
bamboo grove at about the same time.
These witnesses, however, did not testify concerning what they saw
exactly the same time. What they told the court was what they had
seen "at around" 2 o'clock in the afternoon. There could have been a
between difference in time, however little it was, between the time
Jiezl saw accused-appellant and the victim walking and the time
Lorenzo saw accused-appellant near the place where the victim's
body was later found. Far from contradicting each other, these
witnesses confirmed what each had said each one saw. What is
striking about their testimonies is that while Jiezl said she saw
accused-appellant going toward the bamboo grove followed by the
victim "at around" 2 o'clock in the afternoon on October 17, 1996,
Lorenzo said he had seen accused-appellant near the bamboo grove
"at around" that time. He described accused-appellant as nervous and
worried. There is no reason to doubt the claim of these witnesses.
Lorenzo is a relative of accused-appellant. There is no reason he
would testified falsely against the latter. Jiezl, on the other hand, is
also surnamed Domantay and could also be related to accusedappellant and has not been shown to have any reason to testify
falsely against accused-appellant. At the time of the incident, she was
only 10 years old.
For the foregoing reasons, the Court is convinced of accusedappellant's guilt with respect to the killing of the child. It is clear that
the prosecution has proven beyond reasonable doubt that accusedNJQ

22

appellant is guilty of homicide. Art. 249 of the Revised Penal Code

provides:
Any person who, not falling within the provisions of
Article 246 [parricide] shall kill another without the
attendance of any of the circumstances enumerated in
the next preceding article [murder], shall be deemed
guilty of homicide and be punished by reclusion
temporal.
The killing was committed with the generic aggravating circumstance
of abuse of superior strength. The record shows that the victim,
Jennifer Domantay, was six years old at the time of the killing. She
was a child of small build, 46" in height. 47 It is clear then that she
could not have put up much of a defense against accused-appellant's
assault, the latter being a fully grown man of 29 years. Indeed, the
physical evidence supports a finding of abuse of superior strength:
accused-appellant had a weapon, while the victim was not shown to
have had any; there were 38 stab wounds; and all the knife wounds
are located at the back of Jennifer's body.
But we think the lower court erred in finding that the killing was
committed with cruelty. 48 The trial court appears to have been led to
this conclusion by the number of wounds inflicted on the victim. But
the number of wounds is not a test for determining whether there was
circumstance. 49 "The rest . . . is whether the accused deliberately and
sadistically augmented the victim's suffering thus . . . there must be
proof that the victim was made to agonize before the [the accused]
rendered the blow which snuffed out [her] life." 50 In this case, there is
no such proof of cruelty. Dr. Bandonill testified that any of the major
wounds on the victim's back could have caused her death as they
penetrated her heart, lungs and liver, kidney and intestines. 51

Second. There is, however, no sufficient evidence to hold accusedappellant guilty of raping Jennifer Domantay. Art. 335. of the Revised
Penal Code, as amended, in part provides:
Art. 335. When and how rape is committed. Rape is
committed by having carnal knowledge of a woman
under any of the following circumstances.
1. By using force or intimidation;
2. When the woman is deprive of reason or otherwise
unconscious; and
3. When the woman is under twelve years of age or is
demented.
As the victim here was six years old, only carnal knowledge
had to be proved to establish rape. Carnal knowledge is
defined as the act of a man having sexual intercourse or
sexual bodily connections with a woman. 52 For this purpose, it
is enough if there was even the slightest contact of the male
sex organ with the labia of the victim's genitalia. 53 However,
there must be proof, by direct or indirect evidence, of such
contact.
Dr. Ronald Bandonill's report on the genital examination he had
performed on the deceased reads: 54
GENITAL EXAMINATION; showed a complete
laceration of the right side of the hymen. The
surrounding genital area shows signs of inflammation.
xxx xxx xxx

NJQ

23

REMARKS: 1) Findings at the genital area indicate the

probability of penetration of that area by a hard, rigid
instrument.
Hymenal laceration is not necessary to prove rape; 55 neither does its
presence prove its commission. As held in People v. Ulili, 56 a medical
certificate or the testimony of the physician is presented not to prove
that the victim was raped but to show that the latter had lost her
virginity. Consequently, standing alone, a physician's finding that the
hymen of the alleged victim was lacerated does not prove rape. It is
only when this is corroborated by other evidence proving carnal
knowledge that rape may be deemed to have been established. 57

the genital area indicated the probability

of penetration of that area by a hard
rigid instrument.
Q Could it have been caused by a
human organ?
A If the human male organ is erect, fully
erect and hard then it is possible, sir.
xxx xxx xxx
ATTY. VALDEZ:

This conclusion is based on the medically accepted fact that a

hymenal tear may be caused by objects other than the male sex
organ 58 or may arise from other causes. 59 Dr. Bandonill himself
admitted this. He testified that the right side of the victim's hymen had
been completely lacerated while the surrounding genital area showed
signs of inflammation. 60 He opined that the laceration had been
inflicted within 24 hours of the victim's death and that the inflammation
was due to a trauma in that area. 61 When asked by the private
prosecutor whether the lacerations of the hymen could have been
caused by the insertion of a male organ he said this was possible. But
he also said when questioned by the defense that the lacerations
could have been caused by something blunt other than the male
organ. Thus, he testified: 62
PROS. F. QUINIT:
Q Now, what might have caused the
complete laceration of the right side of
the hymen, doctor?
A Well, sir, if you look at my report there
is a remark and it says there; findings at

Q In your remarks; finding at the genital

area indicates the probability of
penetration of that area by a hard rigid
instrument, this may have also been
caused by a dagger used in the killing of
Jennifer Domantay is that correct?
A Well, sir when I say hard rigid
instrument it should not be sharp
pointed and share rigid, it should be a
hard bl[u]nt instrument.
Q Do you consider a bolo a bl[u]
instrument, or a dagger?
A The dagger is a sharp rigid but it is not
a bl[u]nt instrument, sir.
Q This Genital Examination showed a
complete laceration of the right side of

NJQ

24

the hymen, this may have been possibly

caused by a dagger, is it not?
A No, sir. I won't say that this would
have been caused by a dagger,
because a dagger would have made at
its incision . . . not a laceration, sir.
Q But this laceration may also have
been caused by other factors other the
human male organ, is that correct?
A A hard bl[u]nt instrument, sir could
show.
Q My question is other than the human
male organ?
A Possible, sir.
xxx xxx xxx

Q How about if the penetration was

done by a finger, was it the same as the
human organ?
A Well, it defends on the size of the
finger that penetrat[es] that organ, if the
finger is small it could the superficial
laceration, and if the finger is large then
it is possible your honor.
Q How about two fingers?
A Possible, sir.
To be sure, this Court has sustained a number of convictions for rape
with homicide based on purely circumstantial evidence. In those
instances, however, the prosecution was able to present other tell-tale
signs of rape such as the location and description of the victim's
clothings, especially her undergarments, the position of the body
when found and the like. 63 In People v. Macalino, 64 for instance, the
Court affirmed a conviction for the rape of a two-year old child on the
basis of circumstantial evidence. 65

COURT:
Q You mentioned that the hymen was
lacerated on the right side?
A Yes, your Honor.
Q And if there is a complete erection by
a human organ is this possible that the
laceration can only be on the right side
of the hymen?
A Yes, your Honor, its possible.

The Court notes that the testimony or medical opinion

of Dr. Gajardo that the fresh laceration had been
produced by sexual intercourse is corroborated by the
testimony given by complainant. Elizabeth that when
she rushed upstairs upon hearing her daughter
suddenly cry out, she found appellant Macalino beside
the child buttoning his own pants and that she found
some sticky fluid on the child's buttocks and some
blood on her private part.(Emphasis in the original)
In contrast, in the case at bar, there is no circumstantial evidence from
which to infer that accused-appellant sexually abused the victim. The
NJQ

25

only circumstance from which such inference might be made is that

accused-appellant was seen with the victim walking toward the place
where the girl's body was found. Maybe he raped the girl. Maybe he
did not. Maybe he simply inserted a blunt object into her organ, thus
causing the lacerations in the hymen. Otherwise, there is no
circumstance from which it might reasonably be inferred that he
abused her, e.g., that he was zipping up his pants, that there was
spermatozoa in the girl's vaginal canal.
Indeed, the very autopsy report of Dr. Bandonill militates against the
finding of rape. In describing the stab wounds on the body of the
victim, he testified: 66
[A]fter examining the body I took note that were several
stab wounds . . . these were all found at the back area
sir . . . extending from the back shoulder down to the
lower back area from the left to the right.
Considering the relative physical positions of the accused and
the victim in crimes of rape, the usual location of the external
bodily injuries of the victim is on the face, 67 neck, 68 and
anterior portion 69 of her body. Although it is not unnatural to
find contusions on the posterior side, these are usually caused
by the downward pressure on the victim's body during the
sexual assault. 70 It is unquestionably different when, as in this
case, all the stab wounds (except for a minor cut in the lower
left leg) had their entry points at the back running from the
upper left shoulder to the lower right buttocks.
It is noteworthy that the deceased was fully clothed in blue shorts and
white shirt when her body was immediately after it was found. 71
Furthermore, there is a huge bloodstain in the back portion of her
shorts. 72 This must be because she wearing this piece of clothing
when the stab wounds were inflicated or immediately thereafter, thus
allowing the blood to seep into her shorts to such an extent. As

accused-appellant would naturally have to pull down the girl's lower

garments in order to consummate the rape, then, he must have,
regardless of when the stab wounds were inflicted, pulled up the
victim's shorts and undergarments after the alleged rape, otherwise,
the victim's shorts would not have been stained so extensively. Again,
this is contrary to ordinary human experience.
Even assuming that Jennifer had been raped, there is no sufficient
proof that it was accused-appellant who had raped her. He did not
confess to having raped the victim.
From the foregoing, we cannot find that accused-appellant also
committed rape. In the special complex crime of rape with homicide,
both the rape and the homicide must be established beyond
reasonable doubt. 73
Third. The trial court ordered accused-appellant to pay the heirs of
Jennifer Domantay the amount of P30,000.00 as actual damages.
However, the list of expenses produced by the victim's father, Jaime
Domantay, only totaled P28,430.00. Of this amount, only P12,000.00
was supported by a receipt. Art. 2199 of the Civil Code provides that a
party may recover actual or compensatory damages only for such loss
as he has duly proved. Therefore, the award of actual damages
should be reduced to P12,000.00.
In addition, the heirs of Jennifer Domantay are entitled to recover
exemplary damages in view of the presence of the aggravating
circumstance of abuse of superior strength. Art. 2230 of the Civil Code
provides for the payment of exemplary damages when the crime is
committed with one or more aggravating circumstance. An amount of
P25,000.00 is deemed appropriate. 74In accordance with our rulings in
People v. Robles 75 and People v. Mengote, 76 the indemnity should be
fixed at P50,000.00 and the moral damages at P50,000.00.
77
WHEREFORE, the judgment of the trial court is SET ASIDE and
another one is rendered FINDING accused-appellant guilty of
NJQ

26

homicide with the aggravating circumstance of abuse of superior

strength and sentencing him to a prison term of 12 years of prision
mayor, as minimum, to 20 years of reclusion temporal, as maximum,
and ORDERING him to pay the heirs of Jennifer Domantay the
amounts of P50,000.00, as indemnity, P50,000.00, as moral
damages, P25,000.00, as exemplary damages, and P12,000.00, as
actual damages, and the costs.1wphi1.nt
SO ORDERED.
Rule 129, Sections 1 & 2 Judicial Notice
STATE PROSECUTORS, complainants,
vs.
JUDGE MANUEL T. MURO, Regional Trial Court, Branch 54,
Manila, respondent.

PER CURIAM:
In assaying the requisite norms for qualifications and eminence of a
magistrate, legal authorities place a premium on how he has complied
with his continuing duty to know the law. A quality thus considered
essential to the judicial character is that of "a man of learning who
spends tirelessly the weary hours after midnight acquainting himself
with the great body of traditions and the learning of the law; is
profoundly learned in all the learning of the law; and knows how to
use that learning." 1
Obviously, it is the primary duty of a judge, which he owes to the
public and to the legal profession, to know the very law he is
supposed to apply to a given controversy. He is called upon to exhibit
more than just a cursory acquaintance with the statutes and
procedural rules. Party litigants will have great faith in the

administration of justice if judges cannot justly be accused of apparent

deficiency in their grasp of the legal principles. For, service in the
judiciary means a continuous study and research on the law from
beginning to end. 2
In a letter-complaint 3 dated August 19, 1992, respondent Judge
Manuel T. Muro of the Regional Trial Court (RTC) of Manila, Branch
54, was charged by State Prosecutors Nilo C. Mariano, George C.
Dee and Paterno V. Tac-an with ignorance of the law, grave
misconduct and violations of Rules 2.01, 3.01 and 3.02 of the Code of
Judicial Conduct, committed as follows:
1. That on August 13, 1992, respondent judge issued
an Order dismissing eleven (11) cases (docketed as
Crim. Cases Nos. 92-101959 to 92- 101969, inclusive)
filed by the undersigned complainant prosecutors
(members of the DOJ Panel of Prosecutors) against
the accused Mrs. Imelda Romualdez Marcos, for
Violation of Central Bank Foreign Exchange
Restrictions, as consolidated in CB Circular No. 960, in
relation to the penal provisions of Sec. 34 of R.A. 265,
as amended, . . .;
2. That respondent Judge issued his Order solely on
the basis of newspaper reports (August 11, 1992
issues of the Philippine Daily Inquirer and the Daily
Globe) concerning the announcement on August 10,
1992 by the President of the Philippines of the lifting by
the government of all foreign exchange restrictions and
the arrival at such decision by the Monetary Board as
per statement of Central Bank Governor Jose Cuisia;
3. That claiming that the reported announcement of the
Executive Department on the lifting of foreign
exchange restrictions by two newspapers which are
NJQ

27

reputable and of national circulation had the effect of

repealing Central Bank Circular No. 960, as allegedly
supported by Supreme Court decisions . . ., the Court
contended that it was deprived of jurisdiction, and,
therefore, motu, prop(r)io had to dismiss all the eleven
cases aforementioned "for not to do so opens this
Court to charges of trying cases over which it has no
more jurisdiction;"
4. That in dismissing aforecited cases on August 13,
1992 on the basis of a Central Bank Circular or
Monetary Board Resolution which as of date hereof,
has not even been officially issued, and basing his
Order/decision on a mere newspaper account of the
advance announcement made by the President of the
said fact of lifting or liberalizing foreign exchange
controls, respondent judge acted prematurely and in
indecent haste, as he had no way of determining the
full intent of the new CB Circular or Monetary Board
resolution, and whether the same provided for
exception, as in the case of persons who had pending
criminal cases before the courts for violations of
Central Bank Circulars and/or regulations previously
issued on the matter;
5. That respondent Judge's arrogant and cavalier
posture in taking judicial notice purportedly as a matter
of public knowledge a mere newspaper account that
the President had announced the lifting of foreign
exchange restrictions as basis for his assailed order of
dismissal is highly irregular, erroneous and misplaced.
For the respondent judge to take judicial notice thereof
even before it is officially released by the Central Bank
and its full text published as required by law to be
effective shows his precipitate action in utter disregard

of the fundamental precept of due process which the

People is also entitled to and exposes his gross
ignorance of the law, thereby tarnishing public
confidence in the integrity of the judiciary. How can the
Honorable Judge take judicial notice of something
which has not yet come into force and the contents,
shape and tenor of which have not yet been published
and ascertained to be the basis of judicial action? The
Honorable Judge had miserably failed to "endeavor
diligently to ascertain the facts" in the case at bar
contrary to Rule 3.02 of the Code of Judicial Conduct
constituting Grave Misconduct;
6. That respondent Judge did not even ha(ve) the
prudence of requiring first the comment of the
prosecution on the effect of aforesaid Central Bank
Circular/Monetary Board resolution on the pending
cases before dismissing the same, thereby denying the
Government of its right to due process;
7. That the lightning speed with which respondent
Judge acted to dismiss the cases may be gleaned from
the fact that such precipitate action was undertaken
despite already scheduled continuation of trial dates
set in the order of the court (the prosecution having
started presenting its evidence . . .) dated August 11,
1992 to wit: August 31, September 3, 10, 21, & 23 and
October 1, 1992, all at 9:30 o'clock in the morning, in
brazen disregard of all notions of fair play, thereby
depriving the Government of its right to be heard, and
clearly exposing his bias and partiality; and
8. That, in fact, the motive of respondent Judge in
dismissing the case without even waiting for a motion
NJQ

28

to quash filed by the counsel for accused has even

placed his dismissal Order suspect.
Pursuant to a resolution of this Court dated September 8, 1992,
respondent judge filed his comment, 4 contending, inter alia, that there
was no need to await publication of the Central Bank (CB) circular
repealing the existing law on foreign exchange controls for the simple
reason that the public announcement made by the President in
several newspapers of general circulation lifting foreign exchange
controls was total, absolute, without qualification, and was
immediately effective; that having acted only on the basis of such
announcement, he cannot be blamed for relying on the erroneous
statement of the President that the new foreign exchange rules
rendered moot and academic the cases filed against Mrs. Marcos,
and which was corrected only on August 17, 1992 but published in the
newspapers on August 18, 1992, and only after respondent judge had
issued his order of dismissal dated August 13, 1992; that the
President was ill-advised by his advisers and, instead of rescuing the
Chief Executive from embarrassment by assuming responsibility for
errors in the latter's announcement, they chose to toss the blame for
the consequence of their failures to respondent judge who merely
acted on the basis of the announcements of the President which had
become of public knowledge; that the "saving clause" under CB
Circular No. 1353 specifically refers only to pending actions or
investigations involving violations of CB Circular No. 1318, whereas
the eleven cases dismissed involved charges for violations of CB
Circular No. 960, hence the accused cannot be tried and convicted
under a law different from that under which she was charged; that
assuming that respondent judge erred in issuing the order of
dismissal, the proper remedy should have been an appeal therefrom
but definitely not an administrative complaint for his dismissal; that a
mistake committed by a judge should not necessarily be imputed as
ignorance of the law; and that a "court can reverse or modify a
doctrine but it does not show ignorance of the justices or judges
whose decisions were reversed or modified" because "even doctrines

initiated by the Supreme Court are later reversed, so how much more
for the lower courts?"
He further argued that no hearing was necessary since the
prosecution had nothing to explain because, as he theorized, "What
explanation could have been given? That the President was talking
'through his hat' (to use a colloquialism) and should not be believed?
That I should wait for the publication (as now alleged by
complainants), of a still then non-existent CB circular? . . . As it turned
out, CB Circular No. 3153 (sic) does not affect my dismissal order
because the said circular's so-called saving clause does not refer to
CB Circular 960 under which the charges in the dismissed cases were
based;" that it was discretionary on him to take judicial notice of the
facts which are of public knowledge, pursuant to Section 2 of Rule
129; that the contention of complainants that he acted prematurely
and in indecent haste for basing his order of dismissal on a mere
newspaper account is contrary to the wordings of the newspaper
report wherein the President announced the lifting of controls as an
accomplished fact, not as an intention to be effected in the future,
because of the use of the present perfect tense or past tense "has
lifted," not that he "intends to lift," foreign exchange controls.
Finally, respondent judge asseverates that complainants who are
officers of the Department of Justice, violated Section 6, Rule 140 of
the Rules of Court which provides that "proceedings against judges of
first instance shall be private and confidential" when they caused to
be published in the newspapers the filing of the present administrative
case against him; and he emphasizes the fact that he had to
immediately resolve a simple and pure legal matter in consonance
with the admonition of the Supreme Court for speedy disposition of
cases.
In their reply 5 and supplemental reply, 6 complainants aver that
although the saving clause under Section 16 of CB Circular No. 1353
made specific reference to CB Circular No. 1318, it will be noted that
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29

Section 111 of Circular No. 1318, which contains a saving clause

substantially similar to that of the new circular, in turn refers to and
includes Circular No. 960. Hence, whether under Circular No. 1318 or
Circular No. 1353, pending cases involving violations of Circular No.
960 are excepted from the coverage thereof. Further, it is alleged that
the precipitate dismissal of the eleven cases, without according the
prosecution the opportunity to file a motion to quash or a comment, or
even to show cause why the cases against accused Imelda R. Marcos
should not be dismissed, is clearly reflective of respondent's partiality
and bad faith. In effect, respondent judge acted as if he were the
advocate of the accused.
On December 9, 1993, this Court issued a resolution referring the
complaint to the Office of the Court Administrator for evaluation, report
and recommendation, pursuant to Section 7, Rule 140 of the Rules of
Court, as revised, there being no factual issues involved. The
corresponding report and recommendation, 7 dated February 14,
1994, was submitted by Deputy Court Administrator Juanito A.
Bernad, with the approval of Court Administrator Ernani Cruz-Pao.
The questioned order 8 of respondent judge reads as follows:
These eleven (11) cases are for Violation of Central
Bank Foreign Exchange Restrictions as consolidated in
CB Circular No. 960 in relation to the penal provision of
Sec. 34 of R.A. 265, as amended.
The accused Mrs. Imelda R. Marcos pleaded not guilty
to all these cases; apparently the other accused in
some of these cases, Roberto S. Benedicto, was not
arrested and therefore the Court did not acquire
jurisdiction over his person; trial was commenced as
against Mrs. Marcos.

His Excellency, the President of the Philippines,

announced on August 10, 1992 that the government
has lifted all foreign exchange restrictions and it is also
reported that Central Bank Governor Jose Cuisia said
that the Monetary Board arrived at such decision (issue
of the Philippine Daily Inquirer, August 11, 1992 and
issue of the Daily Globe of the same date). The Court
has to give full confidence and credit to the reported
announcement of the Executive Department, specially
from the highest official of that department; the Courts
are charged with judicial notice of matters which are of
public knowledge, without introduction of proof, the
announcement published in at least the two
newspapers cited above which are reputable and of
national circulation.
Per several cases decided by the Supreme Court
(People vs. Alcaras, 56 Phil. 520, People vs. Francisco,
56 Phil. 572, People vs. Pastor, 77 Phil. 1000, People
vs. Crisanto Tamayo, 61 Phil. 225), among others, it
was held that the repeal of a penal law without reenactment extinguishes the right to prosecute or
punish the offense committed under the old law and if
the law repealing the prior penal law fails to penalize
the acts which constituted the offense defined and
penalized in the repealed law, the repealed law carries
with it the deprivation of the courts of jurisdiction to try,
convict and sentence persons charged with violations
of the old law prior to its repeal. Under the aforecited
decisions this doctrine applies to special laws and not
only to the crimes punishable in the Revised Penal
Code, such as the Import Control Law. The Central
Bank Circular No. 960 under which the accused Mrs.
Marcos is charged is considered as a penal law
because violation thereof is penalized with specific
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30

reference to the provision of Section 34 of Republic Act

265, which penalizes violations of Central Bank
Circular No. 960, produces the effect cited in the
Supreme Court decisions and since according to the
decisions that repeal deprives the Court of jurisdiction,
this Court motu proprio dismisses all the eleven (11)
cases as a forestated in the caption, for not to do so
opens this Court to charges of trying cases over which
it has no more jurisdiction.
This order was subsequently assailed in a petition for certiorari filed
with the Court of Appeals, entitled "People of the Philippines vs. Hon.
Manuel T. Muro, Judge, RTC of Manila, Br. 54 and Imelda R. Marcos,"
docketed as CA-G.R. SP No. 29349. When required to file her
comment, private respondent Marcos failed to file any. Likewise, after
the appellate court gave due course to the petition, private respondent
was ordered, but again failed despite notice, to file an answer to the
petition and to show cause why no writ of preliminary injunction
should issue. Eventually, on April 29, 1993, the Court of Appeals
rendered a decision 9 setting aside the order of August 13, 1992, and
reinstating Criminal Cases Nos. 92-101959 to 92-101969.
In finding that respondent judge acted in excess of jurisdiction and
with grave abuse of discretion in issuing the order of dismissal, the
appellate court held that:
The order was issued motu proprio, i.e., without any
motion to dismiss filed by counsel for the accused,
without giving an opportunity for the prosecution to be
heard, and solely on the basis of newspaper reports
announcing that the President has lifted all foreign
exchange restrictions.
The newspaper report is not the publication required by
law in order that the enactment can become effective

and binding. Laws take effect after fifteen days

following the completion of their publication in the
Official Gazette or in a newspaper of general
circulation unless it is otherwise provided (Section 1,
Executive Order No. 200). The full text of CB Circular
1353, series of 1992, entitled "Further Liberalizing
Foreign Exchange Regulation" was published in the
August 27, 1992 issue of the Manila Chronicle, the
Philippine Star and the Manila Bulletin. Per certification
of the CB Corporate Affairs Office, CB Circular No.
1353 took effect on September 2 . . . .
Considering that respondent judge admittedly had not
seen the official text of CB Circular No. 1353, he was in
no position to rule judiciously on whether CB Circular
No. 960, under which the accused Mrs. Marcos is
charged, was already repealed by CB Circular No.
1353. . . .
xxx xxx xxx
A cursory reading of the . . . provision would have
readily shown that the repeal of the regulations on nontrade foreign exchange transactions is not absolute, as
there is a provision that with respect to violations of
former regulations that are the subject of pending
actions or investigations, they shall be governed by the
regulations existing at the time the cause of action
(arose). Thus his conclusion that he has lost
jurisdiction over the criminal cases is precipitate and
hasty. Had he awaited the filing of a motion to dismiss
by the accused, and given opportunity for the
prosecution to comment/oppose the same, his
resolution would have been the result of deliberation,
not speculation.
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31

I. The doctrine of judicial notice rests on the wisdom and discretion of

the courts. The power to take judicial notice is to be exercised by
courts with caution; care must be taken that the requisite notoriety
exists; and every reasonable doubt on the subject should be promptly
resolved in the negative. 10
Generally speaking, matters of judicial notice have three material
requisites: (1) the matter must be one of common and general
knowledge; (2) it must be well and authoritatively settled and not
doubtful or uncertain; and (3) it must be known to be within the limits
of the jurisdiction of the court. 11 The provincial guide in determining
what facts may be assumed to be judicially known is that of notoriety.
12
Hence, it can be said that judicial notice is limited to facts evidenced
by public records and facts of general notoriety. 13
To say that a court will take judicial notice of a fact is merely another
way of saying that the usual form of evidence will be dispensed with if
knowledge of the fact can be otherwise acquired. 14 This is because
the court assumes that the matter is so notorious that it will not be
disputed. 15 But judicial notice is not judicial knowledge. The mere
personal knowledge of the judge is not the judicial knowledge of the
court, and he is not authorized to make his individual knowledge of a
fact, not generally or professionally known, the basis of his action.
Judicial cognizance is taken only of those matters which are
"commonly" known. 16
Things of "common knowledge," of which courts take judicial notice,
may be matters coming to the knowledge of men generally in the
course of the ordinary experiences of life, or they may be matters
which are generally accepted by mankind as true and are capable of
ready and unquestioned demonstration. 17 Thus, facts which are
universally known, and which may be found in encyclopedias,
dictionaries or other publications, are judicially noticed, provided they
are of such universal notoriety and so generally understood that they

may be regarded as forming part of the common knowledge of every

person. 18
Respondent judge, in the guise of exercising discretion and on the
basis of a mere newspaper account which is sometimes even referred
to as hearsay evidence twice removed, took judicial notice of the
supposed lifting of foreign exchange controls, a matter which was not
and cannot be considered of common knowledge or of general
notoriety. Worse, he took cognizance of an administrative regulation
which was not yet in force when the order of dismissal was issued.
Jurisprudence dictates that judicial notice cannot be taken of a statute
before it becomes effective. 19 The reason is simple. A law which is not
yet in force and hence, still inexistent, cannot be of common
knowledge capable of ready and unquestionable demonstration,
which is one of the requirements before a court can take judicial
notice of a fact.
Evidently, it was impossible for respondent judge, and it was definitely
not proper for him, to have taken cognizance of CB Circular No. 1353,
when the same was not yet in force at the time the improvident order
of dismissal was issued.
II. Central Bank Circular No. 1353, which took effect on September 1,
1992, further liberalized the foreign exchange regulations on receipts
and disbursements of residents arising from non-trade and trade
transactions. Section 16 thereof provides for a saving clause, thus:
Sec. 16. Final Provisions of CB Circular No. 1318. - All
the provisions in Chapter X of CB Circular No. 1318
insofar as they are not inconsistent with, or contrary to
the provisions of this Circular, shall remain in full force
and effect: Provided, however, that any regulation on
non-trade foreign exchange transactions which has
been repealed, amended or modified by this Circular,
violations of which are the subject of pending actions or
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32

investigations, shall not be considered repealed insofar

as such pending actions or investigations are
concerned, it being understood that as to such pending
actions or investigations, the regulations existing at the
time the cause of action accrued shall govern.
Respondent judge contends that the saving clause refers only to the
provisions of Circular No. 1318, whereas the eleven criminal cases he
dismissed involve a violation of CB Circular No. 960. Hence, he
insists, Circular No. 960 is deemed repealed by the new circular and
since the former is not covered by the saving clause in the latter, there
is no more basis for the charges involved in the criminal cases which
therefore warrant a dismissal of the same. The contention is patently
unmeritorious.
Firstly, the second part of the saving clause in Circular No. 1353
explicitly provides that "any regulation on non-trade foreign
transactions which has been repealed, amended or modified by this
Circular, violations of which are the subject of pending actions or
investigations, shall not be considered repealed insofar as such
pending actions or investigations are concerned, it being understood
that as to such pending actions or investigations, the regulations
existing at the time the cause of action accrued shall govern." The
terms of the circular are clear and unambiguous and leave no room
for interpretation. In the case at bar, the accused in the eleven cases
had already been arraigned, had pleaded not guilty to the charges of
violations of Circular No. 960, and said cases had already been set for
trial when Circular No. 1353 took effect. Consequently, the trial court
was and is supposed to proceed with the hearing of the cases in spite
of the existence of Circular No. 1353.

Secondly, had respondent judge only bothered to read a little more

carefully the texts of the circulars involved, he would have readily
perceived and known that Circular No. 1318 also contains a
substantially similar saving clause as that found in Circular No. 1353,
since Section 111 of the former provides:
Sec. 111. Repealing clause. - All existing provisions of
Circulars 365, 960 and 1028, including amendments
thereto, with the exception of the second paragraph of
Section 68 of Circular 1028, as well as all other existing
Central Bank rules and regulations or parts thereof,
which are inconsistent with or contrary to the provisions
of this Circular, are hereby repealed or modified
accordingly: Provided, however, that regulations,
violations of which are the subject of pending actions or
investigations, shall be considered repealed insofar as
such pending actions or investigations are concerned,
it being understood that as to such pending actions or
investigations, the regulations existing at the time the
cause of action accrued shall govern.
It unequivocally appears from the section above quoted that although
Circular No. 1318 repealed Circular No. 960, the former specifically
excepted from its purview all cases covered by the old regulations
which were then pending at the time of the passage of the new
regulations. Thus, any reference made to Circular No. 1318
necessarily involves and affects Circular No. 960.
III. It has been said that next in importance to the duty of rendering a
righteous judgment is that of doing it in such a manner as will beget
no suspicion of the fairness and integrity of the judge. 20 This means
that a judge should not only render a just, correct and impartial
decision but should do so in such a manner as to be free from any
suspicion as to its fairness and impartiality and as to his integrity.
While a judge should possess proficiency in law in order that he can
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33

competently construe and enforce the law, it is more important that he

should act and behave in such a manner that the parties before him
should have confidence in his impartiality. Thus, it is not enough that
he decides cases without bias and favoritism. Nor is it sufficient that
he in fact rids himself of prepossessions. His actuations should
moreover inspire that belief. Like Caesar's wife, a judge must not only
be pure but beyond suspicion. 21

and illogical interpretation of an established and well-entrenched rule

if only to suit his own personal opinion and, as it were, to defend his
indefensible action. It was not for him to indulge or even to give the
appearance of catering to the at-times human failing of yielding to first
impressions. 24 He having done so, in the face of the foregoing
premises, this Court is hard put to believe that he indeed acted in
good faith.

Moreover, it has always heretofore been the rule that in disposing of

controverted cases, judges should show their full understanding of the
case, avoid the suspicion of arbitrary conclusion, promote confidence
in their intellectual integrity and contribute useful precedents to the
growth of the law. 22 A judge should be mindful that his duty is the
application of general law to particular instances, that ours is a
government of laws and not of men, and that he violates his duty as a
minister of justice under such a system if he seeks to do what he may
personally consider substantial justice in a particular case and
disregards the general law as he knows it to be binding on him. Such
action may have detrimental consequences beyond the immediate
controversy. He should administer his office with due regard to the
integrity of the system of the law itself, remembering that he is not a
depository of arbitrary power, but a judge under the sanction of the
law. 23 These are immutable principles that go into the very essence of
the task of dispensing justice and we see no reason why they should
not be duly considered in the present case.

IV. This is not a simple case of a misapplication or erroneous

interpretation of the law. The very act of respondent judge in
altogether dismissing sua sponte the eleven criminal cases without
even a motion to quash having been filed by the accused, and without
at least giving the prosecution the basic opportunity to be heard on
the matter by way of a written comment or on oral argument, is not
only a blatant denial of elementary due process to the Government
but is palpably indicative of bad faith and partiality.

The assertion of respondent judge that there was no need to await

publication of Circular No. 1353 for the reason that the public
announcement made by the President in several newspapers of
general circulation lifting foreign exchange controls is total, absolute,
without qualification, and immediately effective, is beyond
comprehension. As a judge of the Regional Trial Court of Manila,
respondent is supposed to be well-versed in the elementary legal
mandates on the publication of laws before they take effect. It is
inconceivable that respondent should insist on an altogether different

The avowed desire of respondent judge to speedily dispose of the

cases as early as possible is no license for abuse of judicial power
and discretion, 25 nor does such professed objective, even if true,
justify a deprivation of the prosecution's right to be heard and a
violation of its right to due process of
law. 26
The lightning speed, to borrow the words of complainants, with which
respondent judge resolved to dismiss the cases without the benefit of
a hearing and without reasonable notice to the prosecution inevitably
opened him to suspicion of having acted out of partiality for the
accused. Regardless of how carefully he may have evaluated
changes in the factual situation and legal standing of the cases, as a
result of the newspaper report, the fact remains that he gave the
prosecution no chance whatsoever to show or prove that it had strong
evidence of the guilt of the accused. To repeat, he thereby effectively
deprived the prosecution of its right to due process. 27 More
importantly, notwithstanding the fact that respondent was not sure of
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34

the effects and implications of the President's announcement, as by

his own admission he was in doubt whether or not he should dismiss
the cases, 28 he nonetheless deliberately refrained from requiring the
prosecution to comment thereon. In a puerile defense of his action,
respondent judge can but rhetorically ask: "What explanation could
have been given? That the President was talking 'through his hat' and
should not be believed? That I should wait for the publication of a still
then non- existent CB Circular?" The pretended cogency of this
ratiocination cannot stand even the minutest legal scrutiny.
In order that bias may not be imputed to a judge, he should have the
patience and circumspection to give the opposing party a chance to
present his evidence even if he thinks that the oppositor's proofs
might not be adequate to overthrow the case for the other party. A
display of petulance and impatience in the conduct of the trial is a
norm of conduct which is inconsistent with the "cold neutrality of an
impartial judge." 29 At the very least, respondent judge acted
injudiciously and with unjustified haste in the outright dismissal of the
eleven cases, and thereby rendered his actuation highly dubious.
V. It bears stressing that the questioned order of respondent judge
could have seriously and substantially affected the rights of the
prosecution had the accused invoked the defense of double jeopardy,
considering that the dismissal was ordered after arraignment and
without the consent of said accused. This could have spawned legal
complications and inevitable delay in the criminal proceedings, were it
not for the holding of the Court of Appeals that respondent judge
acted with grave abuse of discretion amounting to lack of jurisdiction.
This saved the day for the People since in the absence of jurisdiction,
double jeopardy will not set in. To stress this point, and as a caveat to
trial courts against falling into the same judicial error, we reiterate
what we have heretofore declared:
It is settled doctrine that double jeopardy cannot be
invoked against this Court's setting aside of the trial

court's judgment of dismissal or acquittal where the

prosecution which represents the sovereign people in
criminal cases is denied due process. . . . .
Where the prosecution is deprived of a fair opportunity
to prosecute and prove its case, its right to due process
is thereby violated.
The cardinal precept is that where there is a violation of
basic constitutional rights, courts are ousted of their
jurisdiction. Thus, the violation of the State's right to
due process raises a serious jurisdictional issue . . .
which cannot be glossed over or disregarded at will.
Where the denial of the fundamental right of due
process is apparent, a decision rendered in disregard
of that right is void for lack of jurisdiction . . . . 30
It is also significant that accused Marcos, despite due notice, never
submitted either her comment on or an answer to the petition for
certiorari as required by the Court of Appeals, nor was double
jeopardy invoked in her defense. This serves to further underscore the
fact that the order of dismissal was clearly unjustified and erroneous.
Furthermore, considering that the accused is a prominent public figure
with a record of influence and power, it is not easy to allay public
skepticism and suspicions on how said dismissal order came to be, to
the consequent although undeserved discredit of the entire judiciary.
VI. To hold a judge liable for rendering a manifestly unjust order
through inexcusable negligence or ignorance, it must be clearly
shown that although he has acted without malice, he failed to observe
in the performance of his duty that diligence, prudence and care which
the law is entitled to exact in the rendering of any public service.
Negligence and ignorance are inexcusable if they imply a manifest
injustice which cannot be explained by a reasonable interpretation,
and even though there is a misunderstanding or error of the law
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35

applied, it nevertheless results logically and reasonably, and in a very

clear and indisputable manner, in the notorious violation of the legal
precept. 31
In the present case, a cursory perusal of the comment filed by
respondent judge reveals that no substantial argument has been
advanced in plausible justification of his act. He utterly failed to show
any legal, factual, or even equitable justification for the dismissal of
the eleven criminal cases. The explanation given is no explanation at
all. The strained and fallacious submissions therein do not speak well
of respondent and cannot but further depreciate his probity as a
judge. On this point, it is best that pertinent unedited excerpts from his
comment 32 be quoted by way of graphic illustration and emphasis:
On the alleged ignorance of the law imputed to me, it is
said that I issued the Order dismissing the eleven (11)
cases against Mrs. Imelda R. Marcos on the basis of
newspaper reports referred to in paragraph 2 of the
letter complaint without awaiting the official publication
of the Central Bank Circular. Ordinarily a Central Bank
Circular/Resolution must be published in the Official
Gazette or in a newspaper of general circulation, but
the lifting of "all foreign exchange controls" was
announced by the President of the Philippines
WITHOUT QUALIFICATIONS; as published in the
Daily Globe, August 11, 1992" the government has
lifted ALL foreign exchange controls," and in the words
of the Philippine Daily Inquirer report of the same date
"The government yesterday LIFTED the LAST
remaining restrictions on foreign exchange
transactions, . . ." (emphasis in both quotations
supplied) not only the President made the
announcement but also the Central Bank Governor
Jose Cuisia joined in the announcement by saying that
"the Monetary Board arrived at the decision after noting

how the "partial liberalization" initiated early this year

worked."
Therefore, because of the ABSOLUTE lifting of ALL
restrictions on foreign exchange transactions, there
was no need to await the publication of the repealing
circular of the Central Bank. The purpose of requiring
publication of laws and administrative rules affecting
the public is to inform the latter as to how they will
conduct their affairs and how they will conform to the
laws or the rules. In this particular case, with the total
lifting of the controls, there is no need to await
publication. It would have been different if the circular
that in effect repealed Central Bank Circular No. 960,
under which the accused was charged in the cases
dismissed by me, had provided for penalties and/or
modified the provisions of said Circular No. 960.
The Complainants state that the lifting of controls was
not yet in force when I dismissed the cases but it
should be noted that in the report of the two (2)
newspapers aforequoted, the President's
announcement of the lifting of controls was stated in
the present perfect tense (Globe) or past tense
(Inquirer). In other words, it has already been lifted; the
announcement did not say that the government
INTENDS to lift all foreign exchange restrictions but
instead says that the government "has LIFTED all
foreign exchange controls," and in the other newspaper
cited above, that "The government yesterday lifted the
last remaining restrictions on foreign exchange
transactions". The lifting of the last remaining exchange
regulations effectively cancelled or repealed Circular
No. 960.
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36

The President, who is the Chief Executive, publicly

announced the lifting of all foreign exchange
regulations. The President has within his control
directly or indirectly the Central Bank of the Philippines,
the Secretary of Finance being the Chairman of the
Monetary Board which decides the policies of the
Central Bank.
No official bothered to correct or qualify the President's
announcement of August 10, published the following
day, nor made an announcement that the lifting of the
controls do not apply to cases already pending, not
until August 17 (the fourth day after my Order, and the
third day after report of said order was published) and
after the President said on August 17, reported in the
INQUIRER's issue of August 18, 1992, that the "new
foreign exchange rules have nullified government
cases against Imelda R. Marcos, telling reporters that
the charges against the widow of former President
Marcos "have become moot and academic" because of
new ruling(s) which allow free flow of currency in and
out of the country" (Note, parenthetically, the reference
to "new rules" not to "rules still to be drafted"). The
INQUIRER report continues: "A few hours later,
presidential spokeswoman Annabelle Abaya said,
RAMOS (sic) had "corrected himself'." "He had been
belatedly advised by the Central Bank Governor Jose
Cuisia and Justice Secretary Franklin Drilon that the
Monetary Board Regulation excluded from its coverage
all criminal cases pending in court and such a position
shall stand legal scrutiny', Mrs. Abaya, said."
I will elaborate on two points:

1. If the President was wrong in making the August 10

announcement (published in August 11, 1992,
newspapers) and in the August 17 announcement,
SUPRA, and thus I should have relied on the
Presidential announcements, and there is basis to
conclude that the President was at the very least ILLSERVED by his financial and legal advisers, because
no one bothered to advise the President to correct his
announcements, not until August 17, 1992, a few hours
after the President had made another announcement
as to the charges against Imelda Marcos having been
rendered moot and academic. The President has a lot
of work to do, and is not, to my knowledge, a financier,
economist, banker or lawyer. It therefore behooved his
subalterns to give him timely (not "belated") advice,
and brief him on matters of immediate and far-reaching
concerns (such as the lifting of foreign exchange
controls, designed, among others to encourage the
entry of foreign investments). Instead of rescuing the
Chief Executive from embarrassment by assuming
responsibility for errors in the latter's announcement,
these advisers have chosen to toss the blame for the
consequence of their failing to me, who only acted on
the basis of announcements of their Chief, which had
become of public knowledge.
xxx xxx xxx
The Court strongly feels that it has every right to assume and expect
that respondent judge is possessed with more than ordinary
credentials and qualifications to merit his appointment as a presiding
judge in the Regional Trial Court of the National Capital Judicial
Region, stationed in the City of Manila itself. It is, accordingly,
disheartening and regrettable to note the nature of the arguments and
the kind of logic that respondent judge would want to impose on this
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37

Court notwithstanding the manifest lack of cogency thereof. This calls

to mind similar scenarios and how this Court reacted thereto.
In one case, an RTC Judge was administratively charged for
acquitting the accused of a violation of CB Circular No. 960 despite
the fact that the accused was apprehended with US$355,349.00 while
boarding a plane for Hongkong, erroneously ruling that the State must
first prove criminal intent to violate the law and benefit from the illegal
act, and further ordering the return of US$3,000.00 out of the total
amount seized, on the mistaken interpretation that the CB circular
exempts such amount from seizure. Respondent judge therein was
ordered dismissed from the government service for gross
incompetence and ignorance of the law. 33
Subsequently, the Court dismissed another RTC judge, with forfeiture
of retirement benefits, for gross ignorance of the law and for
knowingly rendering an unjust order or judgment when he granted bail
to an accused charged with raping an 11-year old girl, despite the
contrary recommendation of the investigating judge, and thereafter
granted the motion to dismiss the case allegedly executed by the
complainant. 34
Similarly, an RTC judge who was described by this Court as one "who
is ignorant of fairly elementary and quite familiar legal principles and
administrative regulations, has a marked penchant for applying
unorthodox, even strange theories and concepts in the adjudication of
controversies, exhibits indifference to and even disdain for due
process and the rule of law, applies the law whimsically, capriciously
and oppressively, and displays bias and impartiality," was dismissed
from the service with forfeiture of all retirement benefits and with
prejudice to reinstatement in any branch of the government or any of
its agencies or instrumentalities. 35
Still in another administrative case, an RTJ judge was also dismissed
by this Court for gross ignorance of the law after she ordered, in a

probate proceeding, the cancellation of the certificates of title issued

in the name of the complainant, without affording due process to the
latter and other interested parties. 36
Only recently, an RTC judge who had been reinstated in the service
was dismissed after he acquitted all the accused in four criminal
cases for illegal possession of firearms, on the ground that there was
no proof of malice or deliberate intent on the part of the accused to
violate the law. The Court found him guilty of gross ignorance of the
law, his error of judgment being almost deliberate and tantamount to
knowingly rendering an incorrect and unjust judgment. 37
ACCORDINGLY, on the foregoing premises and considerations, the
Court finds respondent Judge Manuel T. Muro guilty of gross
ignorance of the law. He is hereby DISMISSED from the service, such
dismissal to carry with it cancellation of eligibility, forfeiture of leave
credits and retirement benefits, and disqualification from
reemployment in the government service. 38
Respondent is hereby ordered to CEASE and DESIST immediately
from rendering any judgment or order, or continuing any judicial action
or proceeding whatsoever, effective upon receipt of this decision.
SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PRUDENCIO PUGAL, ANTONIO SORIANO and RICARDO
ADDUCA, accused, PRUDENCIO PUGAL, accused-appellant.

REGALADO, J.:
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38

In an information 1 filed on November 5, 1985 before the Regional

Trial Court of Tabuk, Branch 25, Kalinga-Apayao, herein accused
Prudencio Pugal, Antonio Soriano, Ricardo Adduca and one Artemio
Panagan were charged with the crime of "Robbery with Homicide with
the Use of Unlicensed Firearm" under Article 294, paragraph 1, of the
Revised Penal Code in relation to Presidential Decree No. 1866,
committed as follows:
That on or about the evening of July 23, 1985 at
Riverside, Laya West, Tabuk, Kalinga-Apayao and
within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and
mutually aiding one another, with treachery and evident
premeditation, with intent to gain and by the use of
force, violence and intimidation of persons, did then
and there willfully, unlawfully, and feloniously take and
carry away the amount of ONE THOUSAND
(P1,000.00) Pesos, Philippine Currency, belonging to
the victim and his wife, to their damage and prejudice
in said amount, and by reason and on the occasion of
said Robbery, the accused tied said JACINTO
SALAMANCA to a coconut tree and thereafter, willfully,
and feloniously shot Jacinto Salamanca on different
parts of his body (and) said multiple gunshot wounds
caused his direct and immediate death.
The crime is aggravated by nocturnity, craft, dwelling,
treachery and abuse of superior strength.
ALL CONTRARY TO LAW.
Pursuant to the order of arrest issued on November 5, 1985, the
accused were arrested and committed to the custody of the Provincial
Warden on November 22, 1985.

On December 4, 1985, accused Prudencio Pugal, Antonio Soriano,

Ricardo Adduca and Artemio Panagan, assisted by their defense
counsel, Attys. Cesar Purugganan and William F. Claver, were
arraigned and entered a plea of not guilty to the offense charged.
Accused Ricardo Adduca posted his bail bond and was ordered
released on October 2, 1986. However, on the basis of a motion to
withdraw by his bondsman, Adduca was re-arrested and committed to
the provincial jail. While detained therein, Adduca escaped. On
February 2, 1989, the trial court issued an order for his arrest but until
now he remains at large.
Accused Antonio Soriano was "receipted" for by a certain Roberto
Baggay, the Acting Mayor of Pudtol, Kalinga-Apayao, inexplicably
without the approval of or an order from the trial court authorizing him
to do so. Subsequently, said accused also remained at large.
The trial court dismissed the case as against accused Artemio
Panagan upon motion of the prosecution on the basis of an affidavit of
desistance of Erlinda Salamanca, wife of the victim, wherein she
stated that the former was not one of those who killed her husband.
Trial, however, proceeded against the herein three accused since they
had all been arraigned and the absence of accused Soriano and
Adduca was unjustified.
The record show that on January 11, 1989, accused Prudencio Pugal
had been ordered released from jail after filing his bail bond. However,
after the promulgation of the judgment of the trial court hereunder
indicated, said court issued an order on July 17, 1989 cancelling his
bail bond and committing him to the provincial jail where he was
accordingly detained. 2
Parenthetically, aside from the above-named accused charged in the
information filed by the Provincial Fiscal of Kalinga-Apayao, Pat.
Raymund Caseas of Pinukpuk, Kalinga-Apayao was also charged in
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connection with the said killing of Jacinto Salamanca but the case
against him was forwarded to the military tribunal pursuant to the
provisions of Presidential Decree No. 1850, as amended, 3 and the
same is not involved in the present proceeding.
On July 17, 1989, the trial court rendered judgment disposing as
follows:
WHEREFORE, judgment is hereby rendered finding
the accused PRUDENCIO PUGAL, RICARDO
ADDUCA and ANTONIO SORIANO guilty beyond
reasonable doubt as principals of the crime of
ROBBERY WITH HOMICIDE WITH THE USE OF
UNLICENSED FIREARM, defined and penalized under
Article 294, in relation with P.D. 1866, sentencing each
of the accused to suffer the penalty of Reclusion
Perpetua, to indemnify jointly and severally the heirs of
the deceased Jacinto Salamanca the amount of Thirty
Thousand Pesos (P30,000.00) plus Forty Thousand
Pesos (P40,000.00) moral and exemplary damages
without subsidiary imprisonment in case of insolvency
pursuant to Article 39 of the Revised Penal Code and
to pay the costs.
SO ORDERED.

Appellant Prudencio Pugal, the lone accused who appealed to us

from said decision, assigns the following errors allegedly committed
by the court a quo:
1. The trial court grievously erred in holding that the
killing of the victim was positively witnessed by
prosecution witnesses Hizon and Erlinda Salamanca;

2. The lower court grievously erred in giving full

evidentiary weight and credence to the testimonies of
Hizon and Erlinda Salamanca who are biased and
whose testimonies are pregnant with serious and
material inconsistencies, improbabilities and shaky;
3. The lower court erred in finding that appellant
Prudencio Pugal was the one who pulled the deceased
from inside the house, brought him outside and tied
him to a coconut tree;
4. The lower court erred in disregarding the plea of alibi
by appellant Prudencio Pugal;
5. The lower court committed grave error in not
acquitting Prudencio Pugal on ground of reasonable
doubt. 5
The prosecution presented as witnesses Hizon Salamanca, son of the
deceased Jacinto Salamanca; Erlinda Salamanca, wife of said victim;
Dr. Jaime Almora; and Atty. Wayne Odiem, whose collective
testimonies establish the facts of this case as hereunder summarized.
On July 23, 1985, at around 9:00 P.M., Erlinda Salamanca, together
with her son Hizon and daughter-in-law Lolita, was resting inside their
house at Laya West, Tabuk, Kalinga-Apayao. Her husband, Jacinto
Salamanca, had just started to eat supper when the dogs started
barking and they heard and recognized the voice of Prudencio Pugal
call "Apo" three times. 6 Jacinto, who was followed by Erlinda, went to
the sala and asked, "Who are you?" Somebody answered, "Dakami,"
meaning "We are the ones." When Jacinto again called out, "Who are
you," the person outside replied, "We are the ones, we came from
Dagupan." Jacinto and Erlinda peeped through the jalousie window
and they saw Prudencio Pugal and Ricardo Adduca standing near the
door. The place was then lighted by a 20-watt flourescent lamp. 7
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Erlinda told Jacinto to open the door. Once it was opened, however,
Pugal pulled Jacinto out of the house, and then three masked men
rushed inside the house. One of the men who had a long armalite rifle
stood guard at the door, while the other two, one of whom had a short
firearm, entered the house. 8 Adduca, one of the two men who came
inside, demanded money and an armalite rifle from the occupants of
the house, and when the latter failed to produce any, Adduca
ransacked the house. 9 Erlinda was thus compelled to give her
earnings for the day amounting to P1,000.00 and, in addition, she
gave the ring of her daughter-in-law. They were then ordered and
forced to lie on the floor face down. Subsequently, Erlinda and Hizon
heard the clapping of hands from outside the house. 10 Sensing that
nobody was guarding them anymore, Erlinda and Hizon crawled
towards the window. From there, they saw the men drag Jacinto and
tie him to a coconut tree with a rope. Erlinda also saw Pugal slap and
kick Jacinto. Then, the man with an armalite rifle pointed his gun
upwards and fired it several times. Afterwards, he moved backward,
pointed the gun at Jacinto, and shot the latter several times. 11

On July 24, 1985, Dr. Jaime Almora, a resident physician at the

Kalinga-Apayao Provincial Hospital, conducted an autopsy on Jacinto
Salamanca and submitted the following

The malefactors thereafter fled towards the north and when they
reached the "canto" leading to Cabaruan, another gunshot was heard.
Upon seeing that the culprits were already far away, Erlinda and
Hizon rushed to where Jacinto was, only to find his already lifeless
body. Erlinda then sent Hizon to call for assistance and, in no time,
the barangay people and the police arrived at the scene of the crime.
When Jacinto's body was brought to their house, Hizon noticed that
his father's false teeth were missing. Efforts to look for the same at
and near the place where Jacinto was killed proved futile. 12

L Thigh = entry wound at the middle third, medial aspect of left thigh
directed laterally, posteriorly downward.

Two days after Jacinto died, Pugal went to the house of the
Salamancas and handed over to Hizon the missing artificial dentures
of Jacinto which he allegedly found near the place where the victim
was killed. Puga stayed in the house of the Salamancas for the entire
duration of the wake until the ninth day of prayer. 13

POSTMORTEM FINDINGS
External Examination = Cadaver fully clothed, flaccid, with no sign of
rigor mortis or lividity or decomposition.
Head = Left side of skull sagging and with multiple fracture due to
multiple gunshot wounds with loss of some brain tissue and left eye.
Chest = Gunshot wound with point of entry measuring 5mm to 7mm at
the 54th ics mid clavicular line directed posteriorly, medially &
horizontally exiting at the (L) mid clavicular line level of the 8th lcs.
Extremities = R Thigh = grazing wound directed downward at the
anterior upper third of R thigh.

Left leg = Entry wound at the antero-medial aspect of left leg middle
third with no point of exit. Copper Jacket of Bullet recovered.
CAUSE OF DEATH: Multiple gunshot wound(s), head, chest, thigh,
and leg. 14
It appears that Erlinda and Hizon Salamanca gave their sworn
statements on August 16 15 and September 8, 1985, 16 respectively,
both to Police Sgt. Artemio Catabay in the investigation room of the
Tabuk Police Station at Tabuk, Kalinga-Apayao.
The records further reveal that on September 24, 1985, accused
Antonio Soriano, accompanied by Sgts. Taguiam and Aquino, went to
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the office of prosecution witness Atty. Wayne Odiem, District Citizen

Attorney of the Citizens Legal Assistance Office, to seek the latter's
help in the taking of Soriano's confession. After having informed
Soriano of his constitutional rights to remain silent, to counsel, and to
engage a counsel of his own choice, with the requisite warnings on
the possible use of his statement, Atty. Odiem assisted Soriano while
the latter gave his extrajudicial confession 17 to the police
investigators. During the investigation, Soriano, never intimated to him
that the former was coerced and threatened into giving his statement
wherein he implicated herein appellant Pugal as one of the assailants.
As against the straightforward testimonies of the two principal
prosecution witnesses, appellant could only present the defense of
alibi cum denial. Pugal stated that on the night of July 23, 1985, he
was at home at Laya West, which is about one and a half kilometers
away from the house of the victim, and that he did not notice any
unusual incident that night. 18 On the other hand, the second defense
witness, Lydia Magno, testified that appellant is her uncle, that he and
Adduca were part of the "ronda" which went around the barrio, but
nowhere in her testimony did she state anything about the exact
whereabouts of Adduca or appellant on that particular night. 19
I. Appellant Pugal asserts that the trial court erred in relying on the
testimonies of Erlinda and Hizon Salamanca which are allegedly
replete with inconsistencies and contradictions.
First, he contends that Hizon testified that the two men who entered
the house wore masks, whereas Erlinda testified that their faces were
not covered. This inconsistency, he claims, cannot be considered
trivial.
As correctly observed by the Solicitor General, appellant was
obviously confused. Hizon's testimony was in answer to the question
when the robbers were already inside the house, while Erlinda's was
with respect to the first time she saw appellant and his co-accused

who were then calling from outside the house. 20 Thus, Hizon
Salamanca stated:
Q Now, Mr. Witness, you said that particular night and time of July 23,
1985, two (2) men entered your house, were they using mask?
A Yes, sir. 21
and the testimony of Erlinda Salamanca was as follows:
Q Now, you said you saw Prudencio Pugal and Ricardo Adduca when
you peeped with your husband through the jalous(ie). How were you
able to identify them?
A Because during that night time we used 20 watts flourescent lamp
and so I saw them there, sir.
Q How far were they this Adduca and Pugal when you saw them?
A Pugal is near the window and Ricardo Adduca is behind Prudencio
Pugal, sir.
Q Were they in mask?
A No, they were not in mask because we opened it, if they were using
a mask we did (sic, would) not open the door, sir. 22
Furthermore, there could be no inconsistency to speak of precisely
because Erlinda likewise testified that the accused were already
wearing masks when they entered the house, in effect corroborating
the testimony of Hizon on this point. Hence, in her direct examination,
Erlinda declared
Q Can you identify any of the two (2) persons who actually entered
your house?
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A I can not identify the other one because he has a very tight mask
but I can identify the other one because he has a loose mask which
when talking he bite (sic) his bonnet with his mouth, sir. 23
which she further clarified in her cross-examination:
Q Let us go back to the crime when the two persons stood guard to
the door of the house, one allegedly Ricardo Adduca rushed in to
search to (sic) your belonging(s), these three (3) persons were all
masked, is it not Mrs. Salamanca?
A Yes, sir. It was only Pugal who was not masked, sir. 24
The fact that it was only appellant who was not masked was
corroborated by Hizon with the same declaration in court:
Q You said that the incident happened at around 9:00 o'clock in the
night of July 23, 1985, my question is: How could you have
recognized Prudencio Pugal as the one who pulled your father?
A It is because we have twenty (20) watts fluorescent lamp which
energized (sic) by a battery 12 volts battery.
Q Was Prudencio Pugal masked at that time, Mr. Witness?
A No, sir. 25
Second, appellant theorizes that it is hard to believe that a person
who will kill someone who is well known in the community will not hide
his face, this being contrary to human nature and common
experience. Appellant premises this postulation on his presence at the
house of the victim during the wake until the ninth day of prayer, which
fact supposedly negated any and all indicia of guilt on his part.

This, at best, is a mere conjectural pose which cannot stand against

the positive identification of the accused. Appellant's pretended
innocence is clearly non sequitur to his decision not to flee. Apart from
the fact that there is no case law holding that non-flight is a conclusive
proof of innocence, the argument does not hold weight in the light of
the positive identification of the appellant. The material factor here is
that there is positive identification of the accused as the author or,
more accurately, co-author of the crime. 26
Generally, the decision of an accused not to flee despite an
opportunity to do so is hardly characteristic of a guilty person seeking
to escape retribution for his crime. 27 But this is not without exceptions.
In a number of cases, we have had the occasion to rule that the fact
that accused did not flee from the scene of the crime is not a sufficient
ground to exculpate them from the proven criminal liability.
Thus, in People vs. Gardon, 28 we held: "That appellant did not flee
from the scene of the crime is not necessarily indicative of a clear
conscience. He may have smugly thought that the two men fishing on
the pier would not be able to identify him, or that they would keep
"quiet about it" at his behest." In People vs. Bautista, 29 we further
ruled that:
The fact that the appellant joined the search for the
victim and that he and a certain Gabriel Madlangbayan
went to Noveleta, Cavite to buy a coffin for the victim
does not disprove his culpability of the offense charged
nor strengthen his claim of innocence. . . .
xxx xxx xxx
. . . The solicitous attitude of appellant was part of his
craft to divert attention from him and appear blameless.
Appellant assumed this posture of innocence despite
his awareness that his charged because he was doubly
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certain that Francisca, who feared for her life as well as

the lives of her relatives, would not expose him.
Still, in another case, this Court held that:
In some cases of murder, robbery, or even rape where
a person is a prime suspect, his not fleeing may be a
badge of innocence. In the present case, however, the
crime was committed with impunity on three occasions
by one who thought the victim would not complain.
Under the circumstances of this case, the appellant
would most likely not have been discovered if
Josephine did not become pregnant. The appellant did
not have to flee. 30
And, finally, in People vs. Luardo, et al. 31 where the accused, as in
the case at bar, likewise attended the vigil and funeral of the
deceased, the Court, did not apply the general rule with this
explanation:
The defense laid stress on the fact that appellants
could have escaped, but did not. On the contrary, both
Bedico and Capio attended the vigil and funeral of the
deceased and even helped carry the bier of the
latter. . . .
Verily, there is no argument on the fact that flight is
indicative of guilty so that it may be considered in favor
of the accused in the case at bar that they did no
escape. Nonetheless, it has also been held by this
Court that the fact that the accused did not take flight
but even helped the police to locate the supposed
culprits, is not a sufficient ground to exculpate them
from the proved criminal liability.

Third, appellant asseverates that the failure of Hizon and Erlinda

Salamanca to immediately give their statements to the police (which
they gave only after the lapse of 67 days after the incident took place)
affects their credibility.
As a general rule, the failure of a witness to report at once to the
police authorities the crime he had witnessed cannot be taken against
him for it is not uncommon for a witness to a crime to show some
reluctance about getting involved in a criminal case. The natural
reticence of most people to get involved in a criminal case is of judicial
notice, and the fear of eyewitnesses when townmates are involved in
the commission of the crime is understandable for they may provoke
retaliation from the accused. The delay, when adequately explained,
does not impair the credibility of the witness; neither will it render his
testimony biased nor destroy its probative value. 32
In the case at bar, the two principal witnesses for the prosecution
gave more than adequate reason for their initial reluctance in giving
their sworn statements to the police, that is, fear for their safety and
their lives. As a matter of fact, after the ninth day of prayer for the
deceased, the Salamancas had to leave their house and transfer to
another place in apprehension of possible reprisals from the culprits.
When asked why he failed to immediately report and disclose the
identity of the suspects, Hizon Salamanca testified:
Q Now, Mr. Hizon Salamanca, in spite (of) the death of your father, in
spite of the threats of Pugal, and in spite of the fact that you mauled
him before and you know that he is smaller than you are, you did not
report his name to the police that he was the one who entered your
house and killed your father?
A Yes, sir, because we were afraid, for fear that they might come back
for us.
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44

Q You did not even tell that to anyone else You told it only to your
mother, is that correct?

Q According to you you stayed in Tabuk for the whole seven days
that your father was in his wake, is that correct?

A Yes, sir.

A Yes, sir.

Q You did not even tell that to your wife?

Q And there were many visitors who came even the Mayor of Tabuk
came to your house, is that correct?

A I told this to my wife and to my brothers.

A Yes, sir.
Q Who were your brothers?
Q And they asked you if you know who the killers were?
A Raymundo and all my brothers, sir.
A Yes, sir.
Q You gave this information to them that Pugal was one of the
murderers immediately after the incident, is that correct?
A No, I did not say it immediately to my brothers because they were
studying in Tuguegarao.
Q But immediately after the killing the policemen of Tabuk came to
Laya West, is that correct?
A Yes, sir.

Q But just the same you stick (sic) your belief that you should not tell
them the truth?
A Yes, sir.
COURT:
Did you not know that if only you told them the identity of the killers of
your father, the police could have arrested them and put them to jail
and for this reason there would be no more danger in your life?

Q They made an investigation of the crime?

WITNESS:
A Yes, sir.
Q And they asked you know (sic) the killers, is it not?

Yes, but I am afraid, for fear that they

might have still other companions.

A Yes, sir.

COURT:

Q And you told them you do not know because you were afraid?

Proceed.

A Yes, sir.
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45

Q But when you gave your statements

two months and seven days after the
incident, you were no longer afraid?
A No more, sir, because they were
already apprehended.
Q It did not occur to you that there are
still others at the time and they could go
out after you?
A No more, sir, because they (sic)
already there in the jail,
depressed. 33
Fourth, appellant claims that Hizon and Erlinda are biased as
witnesses considering that they are related and very close to the
deceased, hence they have the tendency to exaggerate or give false
color to their testimonies.
This Court has repeatedly held that mere relationship of the witnesses
to the victim does not render their clear and positive testimony less
worthy of full faith and credit. On the contrary, their natural interest in
securing the conviction of the guilty would deter them from implicating
persons other than the culprits, for otherwise, the latter would thereby
gain immunity. 34 Hence, the closeness of their relationship to the
deceased should not, contrary to appellant's view, be deemed erosive
of their credibility as witnesses. That they are the wife and son of the
victim does not make them incompetent as witnesses, nor should it
serve to detract from the credit otherwise due them. 35
Besides, there is no iota of evidence to show that the family of the
victim was actuated by improper motives to testify falsely against the
accused. It is a jurisprudentially embedded and conceded rule that the
mere fact that the witness is a relative is not a valid or sufficient

ground to disregard the former's testimony nor does it render the

same less worthy of credit, in the absence of any ill motive. 36
Furthermore, the prosecution witnesses are not merely relatives of the
deceased; they are likewise victims of the robbery committed by the
accused.
II. Appellant's defense hinges primarily on alibi. He claims though that
while alibi is the weakest of all defenses, nevertheless, where the
evidence for the prosecution is weak and betrays lack of concreteness
on the question of whether or not the accused committed the crime
charged, the defense of alibi assumes importance.
Time and again we have stressed, virtually to the point of repletion
were it not for its pertinency, that alibi is one of the weakest defenses
an accused can invoke 37 because it is easy of fabrication. 38 It cannot
prevail over the positive identification of prosecution witnesses. 39 To
be given credence, it must not only appear that the accused
interposing the same was at some other place but also that it was
physically impossible for him to be at the scene of the crime at the
time of its commission. 40
In the case at bar, appellant was positively identified by Hizon and
Erlinda. The following observations thereon in appellee's brief
accordingly merit our approval:
. . . Appellant was not only seen and recognized
through his face, he was identified also through his
voice.
As testified to by both prosecution witnesses, Erlinda
and Hizon, appellant was the one who called "Apo" for
three times and also the one who replied "Dakami" and
"Naggapu kami Idiay Dagupan", when asked. (TSN, p.
7 Erlinda S.; TSN, p. 9, testimony of Salamanca). The
voice of appellant is familiar to both Erlinda and Hizon
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46

because they have had occasions in the past to talk to

him oftenly considering that appellant is their neighbor
and barriomate for more than 20 years. (TSN, p. 7,
Erlinda S.; TSN, p. 8, Hizon S.).
Appellant was also seen and identified by prosecution
witnesses as he was not wearing any mask and neither
was his face covered during the time he was calling
from outside the house. (TSN, p. 8, Erlinda S.; TSN, p.
13-16, Hizon S.).
Appellant was recognized by the prosecution witnesses
because of the fluorescent lamp in front of the house
energized by a 12-volt battery then illuminating their
house. Besides, the night then was a moonlit night.
(TSN, p. 8, Erlinda S.; TSN, p. 13, Hizon S.).
xxx xxx xxx
Worthy to note is the testimony of Erlinda that when
she recognized the identity of the persons calling from
the outside, she even told her husband to open the
door. This is but natural and in accord with common
observation and human experience.
Otherwise, if the persons calling were masked as
claimed by the defense, the natural and logical reaction
would be to suspect that they were bad elements and
there would be reason not to open the door. . . . 41

The pretension that appellant was allegedly at his house at the time of
the incident cannot stand against the clear and positive identification
by the prosecution witnesses. Also, the Solicitor General correctly
concluded that considering the proximity in the distance between the
two houses, it was not physically impossible for appellant to be at the
locus criminis and then return to his house shortly afterwards.
Finally, conspiracy has been sufficiently established in this case. The
concerted acts of the accused began with the deceased Juanito being
called by Pugal and Adduca who purposely made themselves
identifiable to facilitate their entry into the house. Once the door was
opened, three of the accused who were already wearing masks
entered the house while Pugal pulled Jacinto outside. Then one of the
three who entered the house stood guard at the door while the two
others ransacked the place. Thereafter, upon hearing the clapping of
hands from the outside, the three malefactors immediately left. The
deceased was tied to the coconut tree and then shot to death. By
these concerted actions, it is beyond cavil that the accused acted in
unison and cooperated with each other towards the accomplishment
of a common criminal design, which was to rob the Salamancas and
thereafter kill Jacinto. The trial court definitely did not err in finding the
existence of a conspiracy.
Where conspiracy is shown to exist, the act of one is the act of all. 42
While it has not been established that it was appellant who actually
shot the victim, conspiracy having been found to exist, he is equally
guilty of the crime of robbery with homicide. The rule is whenever
homicide has been committed as a consequence or on the occasion
of the robbery, all those who took part as principals in the robbery will
also be held guilty as principals in the robbery will also be held guilty
as principals of the special complex crime of robbery with homicide
although they did not actually take part in the homicide, unless it
clearly appears that they endeavored to prevent the homicide. 43
There is nothing in the records to show that the exception applied in
this case.
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We, however, reject that portion of the decision of the trial court
finding that the liability of the accused for the crime of robbery with
homicide was attended by, and ostensibly should be modified by the
circumstances of, their use of unlicensed firearms. No evidence was
presented to show, and even the trial court made no finding, that the
firearms used by herein accused were unlicensed. In addition, the
indemnity for which the accused is liable for the death of Jacinto
Salamanca should be increased to P50,000.00 in accordance with the
policy adopted by the Court en banc on August 30, 1990. 44
WHEREFORE, subject to the above-stated modifications, the
judgment of the court a quo is hereby AFFIRMED in all other respects.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ARMANDO REANZARES* also known as ARMANDO RIANZARES,
accused-appellant.
BELLOSILLO, J.:
This case is with us on automatic review of the 26 May 1997
Decision1 of the Regional Trial Court of Tanauan, Batangas, finding
accused ARMANDO REANZARES also known as "Armando
Rianzares" guilty of Highway Robbery with Homicide under PD 5322
and sentencing him to the extreme penalty of death. He was also
ordered to pay the heirs of his victim Lilia Tactacan P172,000.00 for
funeral, burial and related expenses, P50,000.00 as indemnity for
death, P1,000.00 for the cash taken from her bag, and to reimburse
Gregorio Tactacan P2,500.00 for the Seiko wristwatch taken from
him.1wphi1.nt
The facts, except as to the identity of accused Armando Reanzares,
are undisputed. Spouses Gregorio Tactacan and Lilia Tactacan owned
a sari-sari store in San Miguel, Sto. Tomas, Batangas. On 10 May
1994 at around 8:10 in the evening, the Tactacan spouses closed their
store and left for home in Barangay San Roque, Sto. Tomas,

Batangas on board their passenger-type jeepney. As Gregorio was

maneuvering his jeep backwards from where it was parked two (2)
unidentified men suddenly climbed on board. His wife Lilia
immediately asked them where they were going and they answered
that they were bound for the town proper. When Lilia informed them
that they were not going to pass through the town proper, the two (2)
said they would just get off at the nearest intersection. After
negotiating some 500 meters, one of the hitchhikers pointed a .38
caliber revolver at Gregorio while the other poked a balisong at Lilia's
neck and ordered Gregorio to stop the vehicle. Two (2) other persons,
one of whom was later identified as accused Armando Reanzares,
were seen waiting for them at a distance. As soon as the vehicle
stopped, the accused and his companion/approached the vehicle.
Gregorio was then pulled from the driver's seat to the back of the
vehicle. They gagged and blindfolded him and tied his hands and feet.
They also took his Seiko wristwatch worth P2,500.00. The accused
then drove the vehicle after being told by one of them, "Sige i-drive
mo na."3
Gregorio did not know where they were headed for as he was
blindfolded. After several minutes, he felt the vehicle making a u-turn
and stopped after ten (10) minutes. During the entire trip, his wife kept
uttering, "Maawa kayo sa amin, marami kaming anak, kunin nyo na
lahat ng gusto ninyo." Immediately after the last time she uttered
these words a commotion ensued and Lilia was heard saying, "aray!"
Gregorio heard her but could not do anything. After three (3) minutes
the commotion ceased. Then he heard someone tell him, "Huwag
kang kikilos diyan, ha," and left. Gregorio then untied his hands and
feet, removed his gag and blindfold jumped out of the vehicle. The
culprits were all gone, including his wife. He ran to San Roque East
shouting for help.4
When Gregorio returned to the crime scene, the jeepney was still
there. He went to the driver's seat. There he saw his wife lying on the
floor of the jeepney with blood splattered all over her body. Her bag
containing P1,200.00 was missing. He brought her immediately to the
C.P. Reyes Hospital where she was pronounced dead on arrival.5
At the time of her death Lilia Tactacan was forty-eight (48) years old.
According to Gregorio, he was deeply depressed by her death; that he
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48

incurred funeral, burial and other related expenses, and that his wife
was earning P3,430.00 a month as a teacher.6
Dr. Lily D. Nunes, Medical Health Officer of Sto. Tomas, Batangas,
conducted a post-mortem examination on the body of the victim. Her
medical report disclosed that the victim sustained eight (8) stab
wounds on the chest and abdominal region of the body. She testified
that a sharp pointed object like a long knife could have caused those
wounds which must have been inflicted by more than one (1) person,
and that all those wounds except the non-penetrating one caused the
immediate death of the victim.7
Subsequently, two (2) informations were filed against accused
Armando Reanzares and three (3) John Does in relation to the
incident. The first was for violation of PD 532 otherwise known as the
Anti-Piracy and Anti-Highway Robbery Law of 1974 for allegedly
conspiring, with intent to gain and armed with bladed weapons and a .
38 caliber revolver, to rob and carry away one (1) Seiko wristwatch
owned by Gregorio Tactacan and P1,000.00 cash of Lilia Tactacan,
and on the occasion thereof, killed her. The second was for violation
of RA 6538, An Act Preventing and Penalizing Carnapping, for taking
away by means of violence and intimidation of persons one (1)
passenger-type jeepney with Plate No. DBP 235 owned and driven by
Gregorio Tactacan and valued at P110,000.00. Only the accused
Armando Reanzares was arrested. The other three (3) have remained
unidentified and at large.

The accused testified in his defense and claimed that he could not
have perpetrated the crimes imputed to him with three (3) others as
he was in Barangay Tagnipa, Garchitorena, Camarines Sur, for the
baptism of his daughter Jessica when the incident happened.8 His
father, Jose Reanzares, corroborated his story. Jose claimed that the
accused borrowed P500.00 from him for the latter's trip to Bicol
although he could not say that he actually saw the accused leave for
his intended destination.9 To bolster the alibi of the accused, his
brother Romeo Reanzares also took the witness stand and alleged
that he saw the accused off on 9 May 1994, the day before the
incident. Romeo maintained that he accompanied the accused to the
bus stop that day and even helped the latter carry his things to the
bus. He however could not categorically state where and when the
accused alighted or that he in fact reached Bicol. 10
On 26 May 1997 the trial court found the prosecution's evidence
credible and ruled that the alibi of the accused could not prevail over
his positive identification by complaining witness Gregorio Tactacan.
The court a quo declared him guilty of Highway Robbery with
Homicide under PD 532 and sentenced him to death. It further
ordered him to pay the heirs of Lilia Tactacan P50,000.00 as
indemnity for death, P172,000.00 for funeral, burial and related
expenses, and P1,000.00 for the cash taken from her bag. The
accused was also ordered to reimburse Gregorio Tactacan P2,500.00
for the Seiko wristwatch taken from him. 11 But the trial court
exonerated the accused from the charge of carnapping under RA
6539 for insufficiency of evidence.
The accused insists before us that his conviction for Highway Robbery
with Homicide under PD 532 is erroneous as his guilt was not proved
beyond reasonable doubt. He claims that the testimony of private
complainant Gregorio Tactacan, who implicated him as one of the
perpetrators of the crime, is incredible. He maintains that Gregorio
failed to identify him because when the latter was questioned he
stated that he did not know any of the culprits. He also claims that in
the publication of Hotline by Tony Calvento in People's Tonight,
Gregorio even asked the readers to help him identify the malefactors.
The trial court observed that Gregorio Tactacan testified in a
categorical, straightforward, spontaneous and frank manner, and was
NJQ

49

consistent on cross-examination. Indeed, Gregorio might not have

immediately revealed the name of accused Armando Reanzares to
the police authorities when he was first investigated but the delay was
not an indication of a fabricated charge and should not undermine his
credibility considering that he satisfactorily explained his reasons
therefor. According to him, he did not immediately tell the police about
the accused because he feared for the safety of his family as his
neighbors told him that they saw some people lurking around his
house on the day of the incident. Moreover, he was advised not to
mention any names until after the burial of his wife. No ill motive could
be attributed to him for implicating the accused. If at all, the fact that
his wife died by reason of the incident even lends credence to his
testimony since his natural interest in securing the conviction of the
guilty would deter him from implicating persons other than the real
culprits, otherwise, those responsible for the perpetration of the crime
would escape prosecution.
To further undermine the credibility of Gregorio, the accused
underscores Gregorio's refusal to be subjected to a lie detector test.
We cannot subscribe to this contention as the procedure of
ascertaining the truth by means of a lie detector test has never been
accepted in our jurisdiction; thus, any findings based thereon cannot
be considered conclusive.
Finally, the accused chides Gregorio for supposedly suppressing a
very material piece of evidence, i.e., the latter failed to present as
witnesses a certain Renato and his wife who allegedly saw the
holduppers running away from the crime scene. But this is only a
disputable presumption under Sec. 3, par. (e), Rule 131, of the Rules
of Court on evidence, which does not apply in the present case as the
evidence allegedly omitted is equally accessible and available to the
defense.
These attempts of the accused to discredit Gregorio obviously cannot
hold ground. Neither can they bolster his alibi. For alibi to be believed
it must be shown that (a) the accused was in another place at the time
of the commission of the offense, and (b) it was physically impossible
for him to be at the crime scene. 12

In this case, the accused claims to have left for Bicol the day before
the incident. To prove this, he presented his father and brother but
their testimonies did not meet the requisite quantum to establish his
alibi. While his father testified that the accused borrowed money from
him for his fare to Bicol for the baptism of a daughter, he could not say
whether the accused actually went to Bicol. As regards the claim of
Romeo, brother of the accused, that he accompanied the accused to
the bus stop on 9 May 1994 and even helped him with his things,
seeing the accused off is not the same as seeing him actually get off
at his destination. Given the circumstances of this case, it is possible
for the accused to have alighted from the bus before reaching Bicol,
perpetrated the crime in the evening of 10 May 2000, proceeded to
Bicol and arrived there on 12 May 2000 for his daughter's baptism.
Thus the trial court was correct in disregarding the alibi of the accused
not only because he was positively identified by Gregorio Tactacan
but also because it was not shown that it was physically impossible for
him to be at the crime scene on the date and time of the incident.
Indeed the accused is guilty. But that the accused was guilty of
Highway Robbery with Homicide under PD 532 was erroneous. As
held in a number of cases, conviction for highway robbery requires
proof that several accused were organized for the purpose of
committing it indiscriminately. 1 There is no proof in the instant case
that the accused and his cohorts organized themselves to commit
highway robbery. Neither is there proof that they attempted to commit
similar robberies to show the "indiscriminate" perpetration thereof. On
the other hand, what the prosecution established was only a single act
of robbery against the particular persons of the Tactacan spouses.
Clearly, this single act of depredation is not what is contemplated
under PD 532 as its objective is to deter and punish lawless elements
who commit acts of depredation upon persons and properties of
innocent and defenseless inhabitants who travel from one place to
another thereby disturbing the peace and tranquility of the nation and
stunting the economic and social progress of the people.1avvphil
Consequently, the accused should be held liable for the special
complex crime of robbery with homicide under Art. 294 of the Revised
Penal Code as amended by RA 7659 14 as the allegation in the
Information are enough to convict him therefor. In the interpretation of
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50

an information, what controls is the description of the offense charged

and not merely its designation. 15
Art. 294, par. (1) of the Revised Penal Code as amended punishes
the crime of robbery with homicide by reclusion perpetua to death.
Applying Art. 63, second par., subpar. 2, of the Revised Penal Code
which provides that "[i]n all cases in which the law prescribes a
penalty composed of two indivisible penalties, the following rules shall
be observed in the application thereof: . . . 2. [w]hen there are neither
mitigating nor aggravating circumstances in the commission of the
deed, the lesser penalty shall be applied," the lesser penalty of
reclusion perpetua is imposed in the absence of any modifying
circumstance.
As to the damages awarded by the trial court to the heirs of the victim,
we sustain the award of P50,000.00 as civil indemnity for the wrongful
death of Lilia Tactacan. In addition, the amount of P50,000.00 as
moral damages is ordered. Also, damages for loss of earning capacity
of Lilia Tactacan must be granted to her heirs. The testimony of
Gregorio Tactacan, the victim's husband, on the earning capacity of
his wife, together with a copy of his wife's payroll, is enough to
establish the basis for the award. The formula for determining the life
expectancy of Lilia Tactacan, applying the American Expectancy Table
of Mortality, is as follows: 2/3 multiplied by (80 minus the age of the
deceased). 16 Since Lilia was 48 years of age at the time of her death,
17
then her life expectancy was 21.33 years.
At the time of her death, Lilia was earning P3,430.00 a month as a
teacher at the San Roque Elementary School so that her annual
income was P41,160.00. From this amount, 50% should be deducted
as reasonable and necessary living expenses to arrive at her net
earnings. Thus, her net earning capacity was P438,971.40 computed
as follows: Net earning capacity equals life expectancy times gross
annual income less reasonable and necessary living expenses
Net
earning
capcity
(x)

life
expectancy

gross annual
income

reasonable &
necessary;
living
expenses

2 (80-48)
x

[P41,164.00

P20,580.00]

3
= 21.33

x P20,580.00

= P438,971.40
However, the award of P1,000.00 representing the cash taken from
Lilia Tactacan must be increased to P1,200.00 as this was the amount
established by the prosecution without objection from the defense.
The award of P172,000.00 for funeral, burial and related expenses
must be reduced to P22,000.00 as this was the only amount
sufficiently substantiated. 18 There was no other competent evidence
presented to support the original award.
The amount of P2,500.00 as reimbursement for the Seiko wristwatch
taken from Gregorio Tactacan must be deleted in the absence of
receipts or any other competent evidence aside from the self-serving
valuation made by the prosecution. An ordinary witness cannot
establish the value of jewelry and the trial court can only take judicial
notice of the value of goods which is a matter of public knowledge or
is capable of unquestionable demonstration. The value of jewelry
therefore does not fall under either category of which the court can
take judicial notice. 19
WHEREFORE, the Decision appealed from is MODIFIED. Accused
ARMANDO REANZARES also known as "Armando Rianzares" is
found GUILTY beyond reasonable doubt of Robbery with Homicide
under Art. 294 of the Revised Penal Code as amended and is
sentenced to reclusion perpetua. He is ordered to pay the heirs of the
victim P50,000.00 as indemnity for death, another P50,000.00 for
moral damages, P1,200.00 for actual damages, P438,971.40 for loss
of earning capacity, and P22,000.00 for funeral, burial and related
expenses. Costs de oficio.
SO ORDERED.1wphi1.nt
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TOMAS
TUNDAG, accused-appellant.
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51

DECISION
QUISUMBING, J.:
For automatic review is the judgment of the Regional Trial Court of
Mandaue City, Branch 28, in Criminal Cases Nos.DU-6186 and DU6203, finding appellant Tomas Tundag guilty of two counts of
incestuous rape and sentencing him to death twice.

Appellants defense was bare denial. He claimed that private

complainant had fabricated the rape charges against him since he
and his daughter, had a quarrel when he accordingly reprimanded
her for going out whenever he was not at home.iii[3]
Appellant did not present any witness to reinforce his testimony.
On August 31, 1998, the trial court rendered its decision, thus:

On November 18, 1997, private complainant Mary Ann Tundag filed

with the Mandaue City Prosecutors Office two separate complaints
for incestuous rape. The first complaint, docketed as Criminal Case
No. DU-6186, alleged:

WHEREFORE, foregoing premises considered, Joint Judgment is

hereby rendered, to wit:

That on or about the 5th day of September, 1997, in the City of

Mandaue, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, being the father of complainant
MARY ANN TUNDAG, who is a 13-year-old girl, with deliberate intent,
did then and there wilfully, unlawfully and feloniously have sexual
intercourse with the said offended party against the latters will.

a)
Finding the herein accused TOMAS TUNDAG guilty beyond
reasonable doubt for the crime of rape, said accused is hereby
sentenced to the penalty of death;

CONTRARY TO LAW.i[1]

(1)
P50,000.00 by reason of the commission of the offense of
rape upon her; and

The other, docketed as Criminal Case No. DU-6203, averred:

That on or about the 7th day of November, 1997, in the City of
Mandaue, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, being the father of complainant
MARY ANN TUNDAG, who is a 13-year-old girl, with deliberate intent,
did then and there wilfully, unlawfully and feloniously have sexual
intercourse with the said offended party against the latters will.

I.In Criminal Case No. DU-6186 -

b)
To indemnify the offended party Mary Ann Tundag the
following amounts:

(2)
Another P50,000.00 as moral and exemplary damages under
Article 2219 in relation to Articles 2217 and 2230 of the New Civil
Code for the pain and moral shock suffered by her and for the
commission of the crime of rape with one qualifying aggravating
circumstance; and
c)

To pay the costs.

CONTRARY TO LAW.ii[2]

II.

In Criminal Case No. DU-6203 -

Upon arraignment appellant, assisted by counsel de parte, pleaded

Not Guilty to the charges.

a)
Finding the herein accused TOMAS TUNDAG guilty beyond
reasonable doubt for the crime of rape, said accused is hereby
sentenced to the penalty of death;

The two cases were consolidated and a joint trial ensued.

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52

b)
To indemnify the offended party Mary Ann Tundag the
following amounts:
(1)
P50,000.00 by reason of the commission of the offense of
rape upon her; and
(2)
Another P50,000.00 as moral and exemplary damages under
Article 2219 in relation to Articles 2217 and 2230 of the New Civil
Code for the pain and moral shock suffered by her and for the
commission of the crime of rape with one qualifying aggravating
circumstance; and
(3)

To pay the costs.

SO ORDERED.iv[4]
In its judgment, the court below gave credence to complainants
version of what accused did to her.
The evidence for the prosecution as adduced during the trial on the
merits clearly shows that private complainant Mary Ann Tundag is a
13 year old girl who does not know how to read and write and has an
IQ of 76% which is a very low general mental ability and was living
with her father, the herein accused, at Galaxy Compound, Mandaue
City.
xxx
That on September 5, 1997 at about 10:00 oclock in the evening, she
was in the house together with her father. But before she went to
sleep, her father was already lying down on the mat while herself (sic)
just lied down at his head side which was not necessarily beside him.
However, when she was already sleeping, she noticed that her father
who was already undressed was beside her and was embracing her.
Then, he undressed her which she resisted but her father used a knife
and told her that he would kill her if she shouts and after that, he
inserted his penis into her vagina and told her not to shout or tell
anyone. In effect, his penis penetrated her genital, which made her
vagina bleed and was very painful.

That when the penis of her father was already inserted in her vagina,
her father was all the time asking by saying (sic) : Does it feel good?
And at the same time, he was laughing and further, told her that a
woman who does not marry can never enter heaven and he got angry
with her when she contradicted his statement.
That while the penis of her father was inside her vagina and (he) was
humping over her, she felt intense pain that she cried and told him to
pull it out but did not accede and in fact, said: Why will I pull it out
when it feels so good(?)
That after removing his penis from her vagina and after telling her that
she could not go to heaven if she did not get married, her father just
stayed there and continued smoking while she cried.
That in the evening of November 7, 1997, she was at home washing
the dishes while her father was just smoking and squatting. That after
she finished washing the dishes, she lied (sic) down to sleep when
her father embraced her and since she does not like what he did to
her, she placed a stool between them but he just brushed it aside and
laid down with her and was able to take her womanhood again by
using a very sharp knife which he was holding and was pointing it at
the right side of her neck which made her afraid.
That in the early morning of the following day, she left her fathers
place and went to her neighbor by the name of Bebie Cabahug and
told her what had happened to her, who, in turn, advised her to report
the matter to the police, which she did and accompanied by the
policemen, she went to the Southern Islands Hospital where she was
examined and after her medical examination, she was brought back
by the police and was investigated by them.v[5]
Appellants claim that the complainants charges were manufactured
did not impress the trial court, which found him twice guilty of rape.
Now before us, appellant assails his double conviction, simply
contending that:vi[6]
THE TRIAL COURT HAS COMMITTED AN ERROR IN NOT
ABSOLVING THE ACCUSED-APPELLANT OF THE CRIMES
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53

CHARGED IN THE INFORMATIONS DESPITE THE PRESENCE OF

REASONABLE DOUBT TO EXCULPATE HIM OF THE SAME.
Appellant flatly denies that the incidents complained of ever took
place. He contends that on September 5, 1997, he was working as a
watch repairman near Gals Bakery in Mandaue City Market and went
home tired and sleepy at around 11:00 oclock that evening. On
November 7, 1997, he claims he was at work. In his brief, he argues
that it was impossible for him to have raped his daughter because
when the incidents allegedly transpired, he went to work and
naturally, being exhausted and tired, it is impossible for him to do such
wrongdoings.vii[7]
The Office of the Solicitor General disagrees with appellant and urges
the Court to affirm the trial courts decision, with the recommendation
that the award of damages and indemnity ex delicto be modified to
conform to prevailing jurisprudence.

In a prosecution for rape, the complainants credibility is the single

most important issue.xiii[13] The determination of the credibility of
witnesses is primarily the function of the trial court. The rationale for
this is that the trial court has the advantage of having observed at first
hand the demeanor of the witnesses on the stand and, therefore, is in
a better position to form an accurate impression and conclusion.xiv[14]
Absent any showing that certain facts of value have clearly been
overlooked, which if considered could affect the result of the case, or
that the trial courts finding are clearly arbitrary, the conclusions
reached by the court of origin must be respected and the judgment
rendered affirmed.xv[15]
Moreover, we note here that private complainants testimony is
corroborated by medical findings that lacerations were present in her
hymen. The examination conducted by Dr. Bessie Acebes upon the
private complainant yielded the following results:
Genitalia: grossly female

Considering the gravity of the offense charged as a heinous crime and

the irreversibility of the penalty of death imposed in each of these
cases before us, the Court leaves no stone unturned in its review of
the records, including the evidence presented by both the prosecution
and the defense. Conviction must rest on nothing less than a moral
certainty of guilt.viii[8] But here we find no room to disturb the trial
courts judgment concerning appellants guilt, because his defense is
utterly untenable.
Appellants defense of alibi and denial is negative and self-serving. It
hardly counts as a worthy and weighty ground for exculpation in a trial
involving his freedom and his life. Against the testimony of private
complainant who testified on affirmative matters,ix[9] such defense is
not only trite but pathetic. Denial is an inherently weak defense, which
becomes even weaker in the face of the positive identification by the
victim of the appellant as the violator of her honor.x[10] Indeed, we find
that private complainant was unequivocal in charging appellant with
ravishing her. The victims account of the rapes complained of was
straightforward, detailed, and consistent.xi[11] Her testimony never
wavered even after it had been explained to her that her father could
be meted out the death penalty if found guilty by the court.xii[12]

Pubic Hairs: scanty

Labia Majora: coaptated
Labia Minora: -doFourchette:U-shaped
Vestibule: pinkish
Hymen: + old healed laceration at 3 and 9 oclock
position(s).
Orifice: admits 2 fingers with ease
Vagina:
Walls: pinkish
Ruganities: prominent
NJQ

54

Uterus: small

herself as well as her family to a lifetime of dishonor, unless that is the

truth, for it is her natural instinct to protect her honor.xxi[21] More so,
where her charges could mean the death of her own father, as in this
case.

Cervix: closed
Discharges: Mucoid, minimal
Smears:
Conclusions: sperm identification (-)
Gram staining of vaginal disc.xvi[16]
Dr. Acebes testified that her findings of healed hymenal lacerations in
the complainants private parts meant a history of sexual congress on
her part.xvii[17] According to her, the lacerations may have been
caused by the entry of an erect male organ into complainants
genitals. The examining physician likewise pointed out that previous
coitus may be inferred from complainants U-shaped fourchette since
the fourchette of a female who has not yet experienced sexual
intercourse is V-shaped.xviii[18] While Dr. Acebes conceded under
cross-examination, that the existence of the datum U-shape(d)
fourchette does not conclusively and absolutely mean that there was
sexual intercourse or contact because it can be caused by
masturbation of fingers or other things,xix[19] nonetheless, the
presence of the hymenal lacerations tends to support private
complainants claim that she was raped by appellant.
Appellant next contends that his daughter pressed the rape charges
against him because she had quarreled with him after he had
castigated her for misbehavior. He stresses that the prosecution did
not rebut his testimony regarding his quarrel or misunderstanding with
private complainant. He urges us to consider the charges filed against
him as the result of his frequent castigation of her delinquent
behavior.xx[20]
Such allegation of a family feud, however, does not explain the
charges away. Filing a case for incestuous rape is of such a nature
that a daughters accusation must be taken seriously. It goes against
human experience that a girl would fabricate a story which would drag

Appellant likewise points out that it was very unlikely for him to have
committed the crimes imputed to him considering that he and his wife
had ten children to attend to and care for. This argument, however, is
impertinent and immaterial. Appellant was estranged from his wife,
and private complainant was the only child who lived with him.xxii[22]
As pointed out by the Solicitor General, appellant was thus free to do
as he wished to satisfy his bestial lust on his daughter.xxiii[23]
Nor does appellants assertion that private complainant has some
psychological problems and a low IQ of 76 in any way favor his
defense. These matters did not affect the credibility of her testimony
that appellant raped her twice. We note that the victim understood the
consequences of prosecuting the rape charges against her own
father, as shown by the following testimony of the victim on crossexamination:
Q : Were you informed that if, and when your father will be found
guilty, your father will be sentenced to death?
A : Yes.
Q : Until now you wanted that your father will be sentenced by death?
A (Witness nodding.)
xxx
Q : I will inform you, Miss Witness, that you have filed two cases
against your father and in case your father would be found guilty, two
death sentences will be imposed against him?
A: Yes.
Q: With that information, do you still want this case would proceed?
NJQ

55

A: I want this to proceed.xxiv[24]

ATTY. SURALTA: Admitted.

Indeed, appellant is guilty. But is the penalty of death imposed on him

correct?

Judicial notice is the cognizance of certain facts which judges may

properly take and act on without proof because they already know
them.xxxi[31] Under the Rules of Court, judicial notice may either be
mandatory or discretionary. Section 1 of Rule 129 of the Rules of
Court provides when court shall take mandatory judicial notice of facts
-

Section 335 of the Revised Penal Code, as amended by Section 11 of

R.A. No. 7659,xxv[25] penalizes rape of a minor daughter by her father
as qualified rapexxvi[26] and a heinous crime. In proving such felony,
the prosecution must allege and prove the elements of rape: (1)
sexual congress; (2) with woman; (3) by force or without her
consentxxvii[27] and in order to warrant the imposition of capital
punishment, the additional elements that: (4) the victim is under 18
years of age at the time of the rape and (5) the offender is a parent of
the victim.xxviii[28]
In this case, it was sufficiently alleged and proven that the offender
was the victims father.xxix[29] But the victims age was not properly
and sufficiently proved beyond reasonable doubt. She testified that
she was thirteen years old at the time of the rapes. However, she
admitted that she did not know exactly when she was born because
her mother did not tell her. She further said that her birth certificate
was likewise with her mother. In her own words, the victim testified xxx
[30]
COURT TO WITNESS
Q: When were you born?
A: I do not know.
Q: You do not know your birthday?
A: My mama did not tell me exactly when I asked her.
COURT: Proceed.
FISCAL PEREZ: For our failure to secure the Birth Certificate Your
Honor, may we just request for judicial notice that the victim here is
below 18 years old.

SECTION 1. Judicial notice, when mandatory. - A court shall take

judicial notice without the introduction of evidence, of the existence
and territorial extent of states, their political history, forms of
government and symbols of nationality, the law of nations, the
admiralty and maritime courts of the world and their seals, the political
constitution and history of the Philippines, the official acts of the
legislative, executive and judicial departments of the Philippines, the
laws of nature, the measure of time, and the geographical divisions.
Section 2 of Rule 129 enumerates the instances when courts may
take discretionary judicial notice of facts SEC. 2. Judicial notice, when discretionary. - A court may take judicial
notice of matters which are of public knowledge, or are capable of
unquestionable demonstration or ought to be known to judges
because of their judicial functions.
Thus, it can be considered of public knowledge and judicially noticed
that the scene of the rape is not always nor necessarily isolated or
secluded for lust is no respecter of time or place. The offense of rape
can and has been committed in places where people congregate, e.g.
inside a house where there are occupants, a five (5) meter room with
five (5) people inside, or even in the same room which the victim is
sharing with the accuseds sister.xxxii[32]
The Court has likewise taken judicial notice of the Filipinas inbred
modesty and shyness and her antipathy in publicly airing acts which
blemish her honor and virtue.xxxiii[33]

NJQ

56

On the other hand, matters which are capable of unquestionable

demonstration pertain to fields of professional and scientific
knowledge. For example, in People v. Alicante,xxxiv[34] the trial court
took judicial notice of the clinical records of the attending physicians
concerning the birth of twin baby boys as premature since one of the
alleged rapes had occurred 6 to 7 months earlier.

and so was only 9 years old at the time of the rape on February 12,
1984. Although no birth certificate was presented because the victims
birth had allegedly not been registered, her baptismal certificate was
duly presented. Hence, we ruled that the mothers testimony coupled
with the presentation of the baptismal certificate was sufficient to
establish that the victim was below 12 at the time of the rape.

As to matters which ought to be known to judges because of their

judicial functions, an example would be facts which are ascertainable
from the record of court proceedings, e.g. as to when court notices
were received by a party.

However, in People v. Vargas, 257 SCRA 603 (1996), we ruled that

appellant can only be convicted of simple rape, and not statutory rape,
because of failure of the prosecution to prove the minority of the
victim, who was allegedly 10 years old at the time of the rape. The
prosecution failed to present either the birth or baptismal certificate of
the victim. Also there was no showing that the said documents were
lost or destroyed to justify their non-presentation. We held that
testimony of the victim and her aunt were hearsay, and that it was not
correct for the trial court to judge the age of the victim by her
appearance.

With respect to other matters not falling within the mandatory or

discretionary judicial notice, the court can take judicial notice of a fact
pursuant to the procedure in Section 3 of Rule 129 of the Rules of
Court which requires that SEC. 3. Judicial notice, when hearing necessary. - During the trial, the
court, on its own initiative, or on request of a party, may announce its
intention to take judicial notice of any matter and allow the parties to
be heard thereon.

In this case, judicial notice of the age of the victim is improper, despite
the defense counsels admission, thereof acceding to the
prosecutions motion. As required by Section 3 of Rule 129, as to any
other matters such as age, a hearing is required before courts can
take judicial notice of such fact. Generally, the age of the victim may
be proven by the birth or baptismal certificate of the victim, or in the
absence thereof, upon showing that said documents were lost or
destroyed, by other documentary or oral evidence sufficient for the
purpose.

In several recent cases, we have emphasized the need for

independent proof of the age of the victim, aside from testimonial
evidence from the victim or her relatives. In People v. Javier,xxxv[35] we
stressed that the prosecution must present independent proof of the
age of the victim, even though it is not contested by the defense. The
minority of the victim must be proved with equal certainty and
clearness as the crime itself. In People v. Cula,xxxvi[36] we reiterated
that it is the burden of the prosecution to prove with certainty the fact
that the victim was below 18 when the rape was committed in order to
justify the imposition of the death penalty. Since the record of the case
was bereft of any independent evidence thereon, such as the victims
duly certified Certificate of Live Birth, accurately showing private
complainants age, appellant could not be convicted of rape in its
qualified form. In People v. Veloso,xxxvii[37] the victim was alleged to
have been only 9 years of age at the time of the rape. It held that the
trial court was correct when it ruled that the prosecution failed to prove
the victims age other than through the testimony of her father and
herself.

Thus, in People v. Rebancos, 172 SCRA 426 (1989), the victim was
below 12 and we found that the rape committed was statutory rape.
The mother testified that her daughter was born on October 26, 1974,

Considering the statutory requirement in Section 335 of the Revised

Penal Code as amended by R.A. No. 7659 and R.A. No. 8353, we
reiterate here what the Court has held in Javier without any dissent,

After the trial, and before judgment or on appeal, the proper court, on
its own initiative or on request of a party, may take judicial notice of
any matter and allow the parties to be heard thereon if such matter is
decisive of a material issue in the case.

NJQ

57

that the failure to sufficiently establish victims age by independent

proof is a bar to conviction for rape in its qualified form. For, in the
words of Melo, J., independent proof of the actual age of a rape
victim becomes vital and essential so as to remove an iota of doubt
that the case falls under the qualifying circumstances for the
imposition of the death penalty set by the law.
In this case, the first rape was committed on September 5, 1997 and
is therefore governed by the death penalty law, R.A. 7659. The
penalty for the crime of simple rape or rape in its unqualified form
under Art. 335 of the Revised Penal Code, as amended by Sec. 11 of
R.A. 7659, is reclusion perpetua. The second rape was committed on
November 7, 1997, after the effectivity of R.A. 8353, also known as
the Anti-Rape Law of 1997, which took effect on October 22, 1997.
The penalty for rape in its unqualified form remains the same.
As to civil indemnity, the trial court correctly awarded P50,000.00 for
each count of rape as civil indemnity. However, the award of another
P50,000.00 as moral and exemplary damages under Article 2219 in
relation to Articles 2217 and 2230 of the Civil Code for each count is
imprecise. In rape cases, the prevailing jurisprudence permits the
award of moral damages without need for pleading or proof as to the
basis thereof.xxxviii[38] Thus, pursuant to current jurisprudence, we
award the amount of P50,000.00 as moral damages for each count of
rape.

with one or more aggravating circumstances. Hence, we find an

award of exemplary damages in the amount of P25,000.00 proper.
Note that generally, in rape cases imposing the death penalty, the rule
is that relationship is no longer appreciated as a generic aggravating
circumstance in view of the amendments introduced by R.A. Nos.
7659 and 8353. The father-daughter relationship has been treated by
Congress in the nature of a special circumstance which makes the
imposition of the death penalty mandatory.xxxix[39] However, in this
case, the special qualifying circumstance of relationship was proved
but not the minority of the victim, taking the case out of the ambit of
mandatory death sentence. Hence, relationship can be appreciated as
a generic aggravating circumstance in this instance so that exemplary
damages are called for. In rapes committed by fathers on their own
daughters, exemplary damages may be imposed to deter other
fathers with perverse tendency or aberrant sexual behavior from
sexually abusing their own daughters.xl[40]
WHEREFORE, the judgment of the Regional Trial Court of Mandaue
City, Branch 28, in Criminal Case Nos. DU-6186 and DU-6203, is
hereby MODIFIED as follows: appellant Tomas Tundag is found guilty
of two (2) counts of simple rape; and for each count, sentenced to
reclusion perpetua and ordered to pay the victim the amount of
P50,000.00 as indemnity, P50,000.00 as moral damages, and
P25,000.00 as exemplary damages.
No pronouncement as to costs.

The award of exemplary damages separately is also in order, but on a

different basis and for a different amount. Appellant being the father of
the victim, a fact duly proved during trial, we find that the alternative
circumstance of relationship should be appreciated here as an
aggravating circumstance. Under Article 2230 of the New Civil Code,
exemplary damages may be imposed when the crime was committed

SO ORDERED.

NJQ

58

ii

iii

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vi

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viii

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xi

xii

xiii

xiv

xv

xvi

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xviii

xix

xx

xxi

xxii

xxiii

xxiv

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xxvi

xxviiRule 129, Section 4 Judicial AdmissionsJ. ANTONIO AGUENZA, petitioner,

vs.
METROPOLITAN BANK & TRUST CO., VITALIADO P. ARRIETA, LILIA PEREZ, PATRICIO PEREZ
and THE INTERMEDIATE APPELLATE COURT, respondents.

HERMOSISIMA, JR., J.:

Before us is a petition for review on certiorari seeking the reversal of the Decision 1 of the Intermediate
Appellate Court (now the Court of Appeals) 2 finding petitioner J. Antonio Aguenza liable under a
continuing surety agreement to pay private respondent Metropolitan Bank & Trust Company

(hereafter, Metrobank) a loan jointly obtained by the General Manager and a bookkeeper of Intertrade
a corporation of which petitioner is President and in whose behalf petitioner had, in the past, obtained
credit lines.
The following facts are not disputed:
On February 28, 1977, the Board of Directors of Intertrade, through a Board Resolution, authorized
and empowered petitioner and private respondent Vitaliado Arrieta, Intertrade's President and
Executive Vice-President, respectively, to jointly apply for and open credit lines with private respondent
Metrobank. Pursuant to such authority, petitioner and private respondent Arrieta executed several trust
receipts from May to June, 1977, the aggregate value of which amounted to P562,443.46, with
Intertrade as the entrustee and private respondent Metrobank as the entruster.
On March 14, 1977, petitioner and private respondent Arrieta executed a Continuing Suretyship
Agreement whereby both bound themselves jointly and severally with Intertrade to pay private
respondent Metrobank whatever obligation Intertrade incurs, but not exceeding the amount
P750,000.00.
In this connection, private respondent Metrobank's Debit Memo to Intertrade dated March 22, 1978
showed full settlement of the letters of credit covered by said trust receipts in the total amount
P562,443.46.
On March 21, 1978, private respondents Arrieta and Lilia P. Perez, bookkeeper in the employ of
Intertrade, obtained P500,000.00 loan from private respondent Metrobank. Both executed Promissory
Note in favor or said bank in the amount of P500,000,00. Under said note, private respondents Arrieta
and Perez promised to pay said amount, jointly and severally, in twenty five (25) equal installments of
P20,000.00 each starting on April 20, 1979 with interest of 18.704% per annum, and in case of default,
a further 8 % per annum.
Private respondents Arrieta and Perez defaulted in the payment of several installments thus resulting
in the entire obligation becoming due and demandable. In 1979, private respondent Metrobank
instituted suit against Intertrade, Vitaliado Arrieta, Lilia Perez and her husband, Patricio Perez, to
collect not only the unpaid principal obligation, but also interests, fees and penalties, exemplary
damages, as well as attorney's fees and costs of suit.
More than a year after private respondent Metrobank filed its original complaint, it filed an Amended
Complaint dated August 30, 1980 for the sole purpose of impleading petitioner as liable for the loan
made by private respondents Arrieta and Perez on March 21, 1978, notwithstanding the fact that such
liability is being claimed on account of a Continuing Suretyship Agreement dated March 14, 1977
executed by petitioner and private respondent Arrieta especifically to guarantee the credit line applied
for by and granted to, Intertrade, through petitioner and private respondent Arrieta who were specially
given authority by Intertrade on February 28, 1977 to open credit lines with private respondent
Metrobank. The obligations incurred by Intertrade under such credit lines were completely paid as
evidenced by private respondent Metrobank's debit memo in the full amount of P562,443.46.

After hearing on the merits, the trial court rendered its decision absolving petitioner from liability and
dismissing private respondent Metrobank's complaint against him, the dispositive portion of which
reads:
WHEREFORE, judgment is hereby rendered as follows:
1) Declaring that the Promissory Note dated March 21, 1978, marked as Exhibit A is the
responsibility only of defendant Vitaliado P. Arrieta and Lilia P. Perez, in their personal
capacity and to the exclusion of defendant Intertrade and Marketing Co., Inc.;
2) Ordering defendants Vitaliado P. Arrieta and Lilia P. Perez to pay, jointly and
severally, the plaintiff the sum of P1,062,898.92, due, of September 15, 1982, plus
interest, fees and penalties due from that date pursuant to the stipulations in the
promissory note until the whole obligations shall have been paid and finally settled;
3) Ordering defendants Vitaliado P. Arrieta and Lilia Perez to pay, jointly and severally,
the plaintiff the sum of P44,000.00 by way of attorney's fees and other litigation
expenses, albeit there is no award for exemplary damages;
4) Declaring defendant Patricio Perez, as conjugal partner of defendant Lilia Perez, as
jointly and severally liable with her for what the latter is ordered to pay per this
Decision;
5) Dismissing this case insofar as defendants Intertrade and Marketing Co., Inc. and J.
Antonio Aguenza are concerned, although their respective counterclaims against the
plaintiff are also ordered dismissed.
Costs of suit shall be paid, jointly and severally, by defendant Vitaliado Arrieta and Lilia
Perez.
SO ORDERED. 3
Private respondents Arrieta and spouses Perez appealed the foregoing decision to the respondent
Court of Appeals.
On February 11, 1986, respondent appellate court promulgated the herein assailed decision, the
dispositive portion of which reads:
WHEREFORE, the appealed decision is SET ASIDE and another one entered ordering
Intertrade & Marketing Co., Inc., and J. Antonio Aguenza, jointly and severally:
1) to pay the Bank the principal of P440,000.00 plus its interest of 18.704% per annum
computed from April 15, 1979 until full payment;
2) to pay the Bank the sum equivalent to 8% of P440,000.00 as penalty, computed from
July 19, 1978 until full payment;

3) to pay the Bank the sum of P15,000.00 as attorney's fees.

The complaint is dismissed as against Lilia Perez, Patricio Perez and Vitaliado P.
Arrieta who are absolved from liability.
All counterclaims are dismissed.
Costs against Intertrade and Aguenza, jointly and severally.
SO ORDERED.
In setting aside the decision of the trial court, respondent Court of Appeals ratiocinated such reversal
in this wise:
No dispute exists as to the promissory note and the suretyship agreement. The
controversy centers on whether the note was a corporate undertaking and whether the
suretyship agreement covered the obligation in the note.
As far as Intertrade is concerned, it seems clear from its answer that the loan
evidenced by the note was a corporate liability. Paragraph 1.3 of the answer admits
". . . defendant's obtention of the loan from the plaintiff . . ."; the affirmative defenses
admit default, and invoking the defense of usury, plead adjustment of excessive interest
which Intertrade refused to make.
On the basis of this admission, it is no longer in point to discuss, as the appealed
decision does, the question of the capacity in which Arrieta and Perez signed the
promissory note, Intertrade's admission of its corporate liability being admission also
that the signatories signed the note in a representative capacity. The Bank itself gave
corroboration with its insistence on Intertrade's liability under the note. . .
The stated purpose of the note is "operating capital." It cannot be contended that the
words "operating capital" refer to the capital requirements of Perez and Arrieta. In the
first place, it was not shown that they were in business for themselves. Besides, Perez
was only a bookkeeper of Intertrade with a salary of P800.00 a month . . . Their
combined resources would not have been sufficient to justify a business loan of the
note's magnitude. From these follows the only logical conclusion: that Arrieta and the
Perez spouses are not liable on the note.
The surety agreement presents a different problem.
There is no question that Aguenza signed the agreement . . . Its second paragraph
shows, typewritten in bold capitals, that the agreement was executed "for and in
consideration of any existing indebtedness to the Bank of INTERTRADE &
MARKETING COMPANY, INC." Nowhere in its entire text is it shown that its execution
was for the benefit of Perez or Arrieta.

Aguenza feigns ignorance of the promissory note and claims his knowledge of it came
only when he received summons. This is difficult to believe. As Intertrade's first letter to
the Bank . . . shows, the Board of Directors and principal stockholders met to discuss
the obligation. Aguenza was at the time president of Intertrade and acting chairman of
its board . . .
Aguenza also argues that the suretyship was executed to enable Intertrade to avail of
letters of credit to finance importations, which had all been paid in full, and therefore the
agreement was thereby terminated. Again, the agreement shows up the fallacy of this
argument. The document is boldly denominated "CONTINUING SURETYSHIP," and
paragraph VI thereof stipulates it to be a continuing one, "to remain in force until written
notice shall have been received by the Bank that it has been revoked by the surety . . .
" In other words, the option to cancel, in writing, was given to the sureties; the evidence
does not show any written notice of such cancellation. . . .
And, the argument that the agreement was executed as security for letters of credit that
had already been paid is in itself confirmation that the suretyship was meant to benefit
Intertrade. The trust receipts . . . and the bills of exchange . . . are all in the name of
Intertrade.
The suretyship is both retrospective and prospective in its operation. Its wording covers
all obligations of Intertrade existing as of its date as well as those that may exist
thereafter. Hence, its coverage extends to the promissory note as well. 4
Understandably, petitioner lost no time in bringing this case before us via a petition for review on
certiorari on the following grounds:
THE RESPONDENT COURT ERRED IN REVERSING AND [SETTING] ASIDE THE
FINDING OF THE TRIAL COURT THAT THE LOAN OF P500,000.00 PROCURED 21
MARCH 1978 BY RESPONDENTS VITALIADO ARRIETA AND LILIA PEREZ IS NOT A
CORPORATE LIABILITY OF RESPONDENT INTERTRADE AND THAT PETITIONER
IS NOT LIABLE THEREON UNDER THE "CONTINUING SURETYSHIP AGREEMENT"
DATED 4 MARCH 1977.
THE CONCLUSION OF THE RESPONDENT COURT THAT THE LOAN OF
P500,000.00 PROCURED 21 MARCH 1978 BY RESPONDENT VITALIADO ARRIETA
AND LILIA PEREZ IS A CORPORATE LIABILITY OF RESPONDENT INTERTRADE
AND CONSEQUENTLY RENDERING PETITIONER LIABLE IN HIS PERSONAL
CAPACITY AS A SURETY UNDER THE "CONTINUING SURETYSHIP" OF 4 MARCH
1977, IS GROSSLY ERRONEOUS AND PREMISED ON A MISAPPREHENSION OF
FACTS.
THE CONCLUSIONS AND CONSTRUCTION REACHED BY RESPONDENT COURT
FROM THE FACTS AND EVIDENCE OF RECORD, ARE INCORRECT RESULTING IN
AN ERRONEOUS DECISION GRAVELY PREJUDICIAL TO THE SUBSTANTIAL
RIGHTS OF PETITIONER. 5

The petition has merit,.

The principal reason for respondent appellate court's reversal of the trial court's absolution of
petitioner is its finding that the loan made by private respondent Arrieta and Lilia Perez were admitted
by Intertrade to be its own obligation.
After a careful scrutiny of the records, however, we find and we so rule that there is neither factual nor
legal basis for such a finding by respondent Appellate Court.
First, the general rule that "the allegations, statements, or admissions contained in a pleading are
conclusive as against the pleader" 6 is not an absolute and inflexible rule 7 and is subject to exceptions.
Rule 129, Section 4, of the Rules of Evidence, provides:
Sec. 4. Judicial admissions. An admission, verbal or written, made by a party in the
course of the proceedings in the same case, does not require proof. The admission
may be contradicted only by showing that it was made through palpable mistake or that
no such admission was made. (Emphasis supplied).
In other words, an admission in a pleading on which a party goes to trial may be contradicted
by showing that it was made by improvidence or mistake or that no such admission was made,
i.e., "not in the sense in which the admission was made to appear or the admission was taken
out of context." 8
In the case at bench, we find that the respondent Court of Appeals committed an error in appreciating
the "Answer" filed by the lawyer of Intertrade as an admission of corporate liability for the subject loan.
A careful study of the responsive pleading filed by Atty. Francisco Pangilinan, counsel for Intertrade,
would reveal that there was neither express nor implied admission of corporate liability warranting the
application of the general rule. Thus, the alleged judicial admission may be contradicted and
controverted because it was taken out of context and no admission was made at all.
In any event, assuming arguendo that the responsive pleading did contain the aforesaid admission of
corporate liability, the same may not still be given effect at all. As correctly found by the trial court, the
alleged admission made in the answer by the counsel for Intertrade was "without any enabling act or
attendant ratification of corporate act," 9 as would authorize or even ratify such admission. In the
absence of such ratification or authority, such admission does not bind the corporation.
Second, the respondent appellate court likewise adjudged Intertrade liable because of the two letters
emanating from the office of Mr. Arrieta which the respondent court considered "as indicating the
corporate liability of the corporation." 10 These documents and admissions cannot have the effect of a
ratification of an unauthorized act. As we elucidated in the case of Vicente v. Geraldez, 11 "ratification
can never be made on the part of the corporation by the same persons who wrongfully assume the
power to make the contract, but the ratification must be by the officer as governing body having
authority to make such contract." In other words, the unauthorized act of respondent Arrieta can only
be ratified by the action of the Board of Directors and/or petitioner Aguenza jointly with private
respondent Arrieta.

We must emphasize that Intertrade has a distinct personality separate from its members. The
corporation transacts its business only through its officers or agents. Whatever authority these officers
or agents may have is derived from the Board of Directors or other governing body unless conferred
by the charter of the corporation. An officer's power as an agent of the corporation must be sought
from the statute, charter, the by-laws, as in a delegation of authority to such officer, or the acts of the
Board of Directors formally expressed or implied from a habit or custom of doing business. 12
Thirdly, we note that the only document to evidence the subject transaction was the promissory note
dated March 21, 1978 signed by private respondents Arrieta and Lilia Perez. There is no indication in
said document as to what capacity the two signatories had in affixing their signatures thereon.
It is noted that the subject transaction is a loan contract for P500,000.00 under terms and conditions
which are stringent, if not onerous. The power to borrow money is one of those cases where even a
special power of attorney is required. 13 In the instant case, them is invariably a need of an enabling
act of the corporation to be approved by its Board of Directors. As round by the trial court, the records
of this case is bereft of any evidence that Intertrade through its Board of Directors, conferred upon
Arrieta and Lilia Perez the authority to contract a loan with Metrobank and execute the promissory
note as a security therefor. Neither a board resolution nor a stockholder's resolution was presented by
Metrobank to show that Arrieta and Lilia Perez were empowered by Intertrade to execute the
promissory note. 14
The respondents may argue that the actuation of Arrieta and Liliah Perez was in accordance with the
ordinary course of business usages and practices of Intertrade. However, this contention is devoid of
merit because the prevailing practice in Intertrade was to explicitly authorize an officer to contract
loans in behalf of the corporation. This is evidenced by the fact that previous to the controversy, the
Intertrade Board of Directors, through a board resolution, jointly empowered and authorized petitioner
and respondent Arrieta to negotiate, apply for, and open credit lines with Metrobank's. 15 The
participation of these two was mandated to be joint and not separate and individual.
In the case at bench, only respondent Arrieta, together with a bookkeeper of the corporation, signed
the promissory notes, without the participation and approval of petitioner Aguenza. Moreover, the
enabling corporate act on this particular transaction has not been obtained. Neither has it been shown
that any provision of the charter or any other act of the Board of Directors exists to confer power on
the Executive Vice President acting alone and without the concurrence of its President, to execute the
disputed document. 16
Thus, proceeding from the premise that the subject loan was not the responsibility of Intertrade, it
follows that the undertaking of Arrieta and the bookkeeper was not an undertaking covered by the
Continuing Suretyship Agreement. The rule is that a contract of surety is never presumed; it must be
express and cannot extend to more than what is stipulated, 17 It is strictly construed against the
creditor, every doubt being resolved against enlarging the liability of the surety.
The present obligation incurred in subject contract of loan, as secured by the Arrieta and Perez
promissory note, is not the obligation of the corporation and petitioner Aguenza, but the individual and
personal obligation of private respondents Arrieta and Lilia Perez.

WHEREFORE, the petition is GRANTED, and the questioned decision of the Court of Appeals 18 dated
February 11, 1986 is REVERSED and SET ASIDE. The judgment of the trial court dated February 29,
1984 is hereby REINSTATED.
No Costs.
SO ORDERED.
PHILIPPINE AMERICAN GENERAL INSURANCE CO., INC. and TAGUM PLASTICS, INC.,
petitioners,
vs.
SWEET LINES, INC., DAVAO VETERANS ARRASTRE AND PORT SERVICES, INC. and HON.
COURT OF APPEALS, respondents.
De Lara, De Lunas & Rosales for petitioners.
Carlo L. Aquino for Sweet Lines, Inc.

REGALADO, J.:
A maritime suit 1 was commenced on May 12, 1978 by herein Petitioner Philippine American General
Insurance Co., Inc. (Philamgen) and Tagum Plastics, Inc. (TPI) against private respondents Sweet
Lines, Inc. (SLI) and Davao Veterans Arrastre and Port Services, Inc. (DVAPSI), along with S.C.I. Line
(The Shipping Corporation of India Limited) and F.E. Zuellig, Inc., as co-defendants in the court a quo,
seeking recovery of the cost of lost or damaged shipment plus exemplary damages, attorney's fees
and costs allegedly due to defendants' negligence, with the following factual backdrop yielded by the
findings of the court below and adopted by respondent court:
It would appear that in or about March 1977, the vessel SS "VISHVA YASH" belonging
to or operated by the foreign common carrier, took on board at Baton Rouge, LA, two
(2) consignments of cargoes for shipment to Manila and later for transhipment to Davao
City, consisting of 600 bags Low Density Polyethylene 631 and another 6,400 bags Low
Density Polyethylene 647, both consigned to the order of Far East Bank and Trust
Company of Manila, with arrival notice to Tagum Plastics, Inc., Madaum, Tagum, Davao
City. Said cargoes were covered, respectively, by Bills of Lading Nos. 6 and 7 issued by
the foreign common carrier (Exhs. E and F). The necessary packing or Weight List
(Exhs. A and B), as well as the Commercial Invoices (Exhs. C and D) accompanied the
shipment. The cargoes were likewise insured by the Tagum Plastics Inc. with plaintiff
Philippine American General Insurance Co., Inc., (Exh. G).
In the course of time, the said vessel arrived at Manila and discharged its cargoes in
the Port of Manila for transhipment to Davao City. For this purpose, the foreign carrier
awaited and made use of the services of the vessel called M/V "Sweet Love" owned
and operated by defendant interisland carrier.

Subject cargoes were loaded in Holds Nos. 2 and 3 of the interisland carrier. These
were commingled with similar cargoes belonging to Evergreen Plantation and also
Standfilco.
On May 15, 1977, the shipment(s) were discharged from the interisland carrier into the
custody of the consignee. A later survey conducted on July 8, 1977, upon the instance
of the plaintiff, shows the following:
Of the cargo covered by Bill of Lading No. 25 or (2)6, supposed to contain 6,400 bags
of Low Density Polyethylene 647 originally inside 160 pallets, there were delivered to
the consignee 5,413 bags in good order condition. The survey shows shortages,
damages and losses to be as follows:
Undelivered/Damaged bags as tallied during discharge from vessel-173
bags; undelivered and damaged as noted and observed whilst stored at
the pier-699 bags; and shortlanded-110 bags (Exhs. P and P-1).
Of the 600 bags of Low Density Polyethylene 631, the survey conducted on the same
day shows an actual delivery to the consignee of only 507 bags in good order condition.
Likewise noted were the following losses, damages and shortages, to wit:
Undelivered/damaged bags and tally sheets during discharge from
vessel-17 bags.
Undelivered and damaged as noted and observed whilst stored at the
pier-66 bags; Shortlanded-10 bags.
Therefore, of said shipment totalling 7,000 bags, originally contained in 175 pallets,
only a total of 5,820 bags were delivered to the consignee in good order condition,
leaving a balance of 1,080 bags. Such loss from this particular shipment is what any or
all defendants may be answerable to (sic).
As already stated, some bags were either shortlanded or were missing, and some of
the 1,080 bags were torn, the contents thereof partly spilled or were fully/partially
emptied, but, worse, the contents thereof contaminated with foreign matters and
therefore could no longer serve their intended purpose. The position taken by the
consignee was that even those bags which still had some contents were considered as
total losses as the remaining contents were contaminated with foreign matters and
therefore did not (sic) longer serve the intended purpose of the material. Each bag was
valued, taking into account the customs duties and other taxes paid as well as charges
and the conversion value then of a dollar to the peso, at P110.28 per bag (see Exhs. L
and L-1 M and O). 2
Before trial, a compromise agreement was entered into between petitioners, as plaintiffs, and
defendants S.C.I. Line and F.E. Zuellig, upon the latter's payment of P532.65 in settlement of the claim
against them. Whereupon, the trial court in its order of August 12, 1981 3 granted plaintiffs' motion to

dismiss grounded on said amicable settlement and the case as to S.C.I. Line and F.E. Zuellig was
consequently "dismissed with prejudice and without pronouncement as to costs."
The trial court thereafter rendered judgment in favor of herein petitioners on this dispositive portion:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff Philippine General
American Insurance Company Inc. and against the remaining defendants, Sweet Lines
Inc. and Davao Veterans Arrastre Inc. as follows:
Defendant Sweet Lines, Inc. is ordered to pay said plaintiff the sum of P34,902.00, with
legal interest thereon from date of extrajudicial demand on April 28, 1978 (Exh. M) until
fully paid;
Defendant Sweet Lines Inc. and Davao Veterans Arrastre and (Port) Services Inc. are
directed to pay jointly and severally, the plaintiff the sum of P49,747.55, with legal
interest thereon from April 28, 1978 until fully paid;
Each of said defendants are ordered to pay the plaintiffs the additional sum of P5,000 is
reimbursable attorney's fees and other litigation expenses;
Each of said defendants shall pay one-fourth (1/4) costs. 4
Due to the reversal on appeal by respondent court of the trial court's decision on the ground of
prescription, 5 in effect dismissing the complaint of herein petitioners, and the denial of their motion for
reconsideration, 6 petitioners filed the instant petition for review on certiorari, faulting respondent
appellate court with the following errors: (1) in upholding, without proof, the existence of the so-called
prescriptive period; (2) granting arguendo that the said prescriptive period does exist, in not finding the
same to be null and void; and (3) assuming arguendo that the said prescriptive period is valid and
legal, in failing to conclude that petitioners substantially complied therewith. 7
Parenthetically, we observe that herein petitioners are jointly pursuing this case, considering their
common interest in the shipment subject of the present controversy, to obviate any question as to who
the real party in interest is and to protect their respective rights as insurer and insured. In any case,
there is no impediment to the legal standing of Petitioner Philamgen, even if it alone were to sue
herein private respondents in its own capacity as insurer, it having been subrogated to all rights of
recovery for loss of or damage to the shipment insured under its Marine Risk Note No. 438734 dated
March 31, 1977 8 in view of the full settlement of the claim thereunder as evidenced by the
subrogation receipt 9 issued in its favor by Far East Bank and Trust Co., Davao Branch, for the
account of petitioner TPI.
Upon payment of the loss covered by the policy, the insurer's entitlement to subrogation pro tanto,
being of the highest equity, equips it with a cause of action against a third party in case of contractual
breach. 10 Further, the insurer's subrogatory right to sue for recovery under the bill of lading in case of
loss of or damage to the cargo is jurisprudentially upheld. 11 However, if an insurer, in the exercise of
its subrogatory right, may proceed against the erring carrier and for all intents and purposes stands in
the place and in substitution of the consignee, a fortiori such insurer is presumed to know and is just

as bound by the contractual terms under the bill of lading as the insured.
On the first issue, petitioners contend that it was error for the Court of Appeals to reverse the appealed
decision on the supposed ground of prescription when SLI failed to adduce any evidence in support
thereof and that the bills of lading said to contain the shortened periods for filing a claim and for
instituting a court action against the carrier were never offered in evidence. Considering that the
existence and tenor of this stipulation on the aforesaid periods have allegedly not been established,
petitioners maintain that it is inconceivable how they can possibly comply therewith. 12 In refutation,
SLI avers that it is standard practice in its operations to issue bills of lading for shipments entrusted to
it for carriage and that it in fact issued bills of lading numbered MD-25 and MD-26 therefor with proof
of their existence manifest in the records of the case. 13 For its part, DVAPSI insists on the propriety of
the dismissal of the complaint as to it due to petitioners' failure to prove its direct responsibility for the
loss of and/or damage to the cargo. 14
On this point, in denying petitioner's motion for reconsideration, the Court of Appeals resolved that
although the bills of lading were not offered in evidence, the litigation obviously revolves on such bills
of lading which are practically the documents or contracts sued upon, hence, they are inevitably
involved and their provisions cannot be disregarded in the determination of the relative rights of the
parties thereto. 15
Respondent court correctly passed upon the matter of prescription, since that defense was so
considered and controverted by the parties. This issue may accordingly be taken cognizance of by the
court even if not inceptively raised as a defense so long as its existence is plainly apparent on the face
of relevant pleadings. 16 In the case at bar, prescription as an affirmative defense was seasonably
raised by SLI in its answer, 17 except that the bills of lading embodying the same were not formally
offered in evidence, thus reducing the bone of contention to whether or not prescription can be
maintained as such defense and, as in this case, consequently upheld on the strength of mere
references thereto.
As petitioners are suing upon SLI's contractual obligation under the contract of carriage as contained
in the bills of lading, such bills of lading can be categorized as actionable documents which under the
Rules must be properly pleaded either as causes of action or defenses, 18 and the genuineness and
due execution of which are deemed admitted unless specifically denied under oath by the adverse
party. 19 The rules on actionable documents cover and apply to both a cause of action or defense
based on said documents. 20
In the present case and under the aforestated assumption that the time limit involved is a prescriptive
period, respondent carrier duly raised prescription as an affirmative defense in its answer setting forth
paragraph 5 of the pertinent bills of lading which comprised the stipulation thereon by parties, to wit:
5. Claims for shortage, damage, must be made at the time of delivery to consignee or
agent, if container shows exterior signs of damage or shortage. Claims for non-delivery,
misdelivery, loss or damage must be filed within 30 days from accrual. Suits arising
from shortage, damage or loss, non-delivery or misdelivery shall be instituted within 60
days from date of accrual of right of action. Failure to file claims or institute judicial
proceedings as herein provided constitutes waiver of claim or right of action. In no case

shall carrier be liable for any delay, non-delivery, misdelivery, loss of damage to cargo
while cargo is not in actual custody of carrier. 21
In their reply thereto, herein petitioners, by their own assertions that
2. In connection with Pars. 14 and 15 of defendant Sweet Lines, Inc.'s Answer, plaintiffs
state that such agreements are what the Supreme Court considers as contracts of
adhesion (see Sweet Lines, Inc. vs. Hon. Bernardo Teves, et al., G.R. No. L-37750,
May 19, 1978) and, consequently, the provisions therein which are contrary to law and
public policy cannot be availed of by answering defendant as valid defenses. 22
thereby failed to controvert the existence of the bills of lading and the aforequoted provisions therein,
hence they impliedly admitted the same when they merely assailed the validity of subject stipulations.
Petitioners' failure to specifically deny the existence, much less the genuineness and due execution, of
the instruments in question amounts to an admission. Judicial admissions, verbal or written, made by
the parties in the pleadings or in the course of the trial or other proceedings in the same case are
conclusive, no evidence being required to prove the same, and cannot be contradicted unless shown
to have been made through palpable mistake or that no such admission was made. 23 Moreover, when
the due execution and genuineness of an instrument are deemed admitted because of the adverse
party's failure to make a specific verified denial thereof, the instrument need not be presented formally
in evidence for it may be considered an admitted fact. 24
Even granting that petitioners' averment in their reply amounts to a denial, it has the procedural
earmarks of what in the law on pleadings is called a negative pregnant, that is, a denial pregnant with
the admission of the substantial facts in the pleading responded to which are not squarely denied. It is
in effect an admission of the averment it is directed to. 25 Thus, while petitioners objected to the validity
of such agreement for being contrary to public policy, the existence of the bills of lading and said
stipulations were nevertheless impliedly admitted by them.
We find merit in respondent court's comments that petitioners failed to touch on the matter of the nonpresentation of the bills of lading in their brief and earlier on in the appellate proceedings in this case,
hence it is too late in the day to now allow the litigation to be overturned on that score, for to do so
would mean an over-indulgence in technicalities. Hence, for the reasons already advanced, the noninclusion of the controverted bills of lading in the formal offer of evidence cannot, under the facts of
this particular case, be considered a fatal procedural lapse as would bar respondent carrier from
raising the defense of prescription. Petitioners' feigned ignorance of the provisions of the bills of
lading, particularly on the time limitations for filing a claim and for commencing a suit in court, as their
excuse for non-compliance therewith does not deserve serious attention.
It is to be noted that the carriage of the cargo involved was effected pursuant to an "Application for
Delivery of Cargoes without Original Bill of Lading" issued on May 20, 1977 in Davao City 26 with the
notation therein that said application corresponds to and is subject to the terms of bills of lading MD-25
and MD-26. It would be a safe assessment to interpret this to mean that, sight unseen, petitioners
acknowledged the existence of said bills of lading. By having the cargo shipped on respondent
carrier's vessel and later making a claim for loss on the basis of the bills of lading, petitioners for all

intents and purposes accepted said bills. Having done so they are bound by all stipulations contained
therein. 27 Verily, as petitioners are suing for recovery on the contract, and in fact even went as far as
assailing its validity by categorizing it as a contract of adhesion, then they necessarily admit that there
is such a contract, their knowledge of the existence of which with its attendant stipulations they cannot
now be allowed to deny.
On the issue of the validity of the controverted paragraph 5 of the bills of lading above quoted which
unequivocally prescribes a time frame of thirty (30) days for filing a claim with the carrier in case of
loss of or damage to the cargo and sixty (60) days from accrual of the right of action for instituting an
action in court, which periods must concur, petitioners posit that the alleged shorter prescriptive period
which is in the nature of a limitation on petitioners' right of recovery is unreasonable and that SLI has
the burden of proving otherwise, citing the earlier case of Southern Lines, Inc. vs. Court of Appeals, et
al. 28 They postulate this on the theory that the bills of lading containing the same constitute contracts
of adhesion and are, therefore, void for being contrary to public policy, supposedly pursuant to the
dictum in Sweet Lines, Inc. vs. Teves, et al. 29
Furthermore, they contend, since the liability of private respondents has been clearly established, to
bar petitioners' right of recovery on a mere technicality will pave the way for unjust enrichment. 30
Contrarily, SLI asserts and defends the reasonableness of the time limitation within which claims
should be filed with the carrier; the necessity for the same, as this condition for the carrier's liability is
uniformly adopted by nearly all shipping companies if they are to survive the concomitant rigors and
risks of the shipping industry; and the countervailing balance afforded by such stipulation to the legal
presumption of negligence under which the carrier labors in the event of loss of or damage to the
cargo. 31
It has long been held that Article 366 of the Code of Commerce applies not only to overland and river
transportation but also to maritime
transportation. 32 Moreover, we agree that in this jurisdiction, as viewed from another angle, it is more
accurate to state that the filing of a claim with the carrier within the time limitation therefor under Article
366 actually constitutes a condition precedent to the accrual of a right of action against a carrier for
damages caused to the merchandise. The shipper or the consignee must allege and prove the
fulfillment of the condition and if he omits such allegations and proof, no right of action against the
carrier can accrue in his favor. As the requirements in Article 366, restated with a slight modification in
the assailed paragraph 5 of the bills of lading, are reasonable conditions precedent, they are not
limitations of action. 33 Being conditions precedent, their performance must precede a suit for
enforcement 34 and the vesting of the right to file spit does not take place until the happening of these
conditions. 35
Now, before an action can properly be commenced all the essential elements of the cause of action
must be in existence, that is, the cause of action must be complete. All valid conditions precedent to
the institution of the particular action, whether prescribed by statute, fixed by agreement of the parties
or implied by law must be performed or complied with before commencing the action, unless the
conduct of the adverse party has been such as to prevent or waive performance or excuse nonperformance of the condition. 36

It bears restating that a right of action is the right to presently enforce a cause of action, while a cause
of action consists of the operative facts which give rise to such right of action. The right of action does
not arise until the performance of all conditions precedent to the action and may be taken away by the
running of the statute of limitations, through estoppel, or by other circumstances which do not affect
the cause of action. 37 Performance or fulfillment of all conditions precedent upon which a right of
action depends must be sufficiently alleged, 38 considering that the burden of proof to show that a party
has a right of action is upon the person initiating the suit. 39
More particularly, where the contract of shipment contains a reasonable requirement of giving notice of
loss of or injury to the goods, the giving of such notice is a condition precedent to the action for loss or
injury or the right to enforce the carrier's liability. Such requirement is not an empty formalism. The
fundamental reason or purpose of such a stipulation is not to relieve the carrier from just liability, but
reasonably to inform it that the shipment has been damaged and that it is charged with liability
therefor, and to give it an opportunity to examine the nature and extent of the injury. This protects the
carrier by affording it an opportunity to make an investigation of a claim while the matter is fresh and
easily investigated so as to safeguard itself from false and fraudulent claims. 40
Stipulations in bills of lading or other contracts of shipment which require notice of claim for loss of or
damage to goods shipped in order to impose liability on the carrier operate to prevent the enforcement
of the contract when not complied with, that is, notice is a condition precedent and the carrier is not
liable if notice is not given in accordance with the stipulation, 41 as the failure to comply with such a
stipulation in a contract of carriage with respect to notice of loss or claim for damage bars recovery for
the loss or damage suffered. 42
On the other hand, the validity of a contractual limitation of time for filing the suit itself against a carrier
shorter than the statutory period therefor has generally been upheld as such stipulation merely affects
the shipper's remedy and does not affect the liability of the carrier. In the absence of any statutory
limitation and subject only to the requirement on the reasonableness of the stipulated limitation period,
the parties to a contract of carriage may fix by agreement a shorter time for the bringing of suit on a
claim for the loss of or damage to the shipment than that provided by the statute of limitations. Such
limitation is not contrary to public policy for it does not in any way defeat the complete vestiture of the
right to recover, but merely requires the assertion of that right by action at an earlier period than would
be necessary to defeat it through the operation of the ordinary statute of limitations. 43
In the case at bar, there is neither any showing of compliance by petitioners with the requirement for
the filing of a notice of claim within the prescribed period nor any allegation to that effect. It may then
be said that while petitioners may possibly have a cause of action, for failure to comply with the above
condition precedent they lost whatever right of action they may have in their favor or, token in another
sense, that remedial right or right to relief had prescribed. 44
The shipment in question was discharged into the custody of the consignee on May 15, 1977, and it
was from this date that petitioners' cause of action accrued, with thirty (30) days therefrom within
which to file a claim with the carrier for any loss or damage which may have been suffered by the
cargo and thereby perfect their right of action. The findings of respondent court as supported by
petitioners' formal offer of evidence in the court below show that the claim was filed with SLI only on
April 28, 1978, way beyond the period provided in the bills of lading 45 and violative of the contractual

provision, the inevitable consequence of which is the loss of petitioners' remedy or right to sue. Even
the filing of the complaint on May 12, 1978 is of no remedial or practical consequence, since the time
limits for the filing thereof, whether viewed as a condition precedent or as a prescriptive period, would
in this case be productive of the same result, that is, that petitioners had no right of action to begin
with or, at any rate, their claim was time-barred.
What the court finds rather odd is the fact that petitioner TPI filed a provisional claim with DVAPSI as
early as June 14, 1977 46 and, as found by the trial court, a survey fixing the extent of loss of and/or
damage to the cargo was conducted on July 8, 1977 at the instance of petitioners. 47 If petitioners had
the opportunity and awareness to file such provisional claim and to cause a survey to be conducted
soon after the discharge of the cargo, then they could very easily have filed the necessary formal, or
even a provisional, claim with SLI itself 48 within the stipulated period therefor, instead of doing so only
on April 28, 1978 despite the vessel's arrival at the port of destination on May 15, 1977. Their failure to
timely act brings us to no inference other than the fact that petitioners slept on their rights and they
must now face the consequences of such inaction.
The ratiocination of the Court of Appeals on this aspect is worth reproducing:
xxx xxx xxx
It must be noted, at this juncture, that the aforestated time limitation in the presentation
of claim for loss or damage, is but a restatement of the rule prescribed under Art. 366 of
the Code of Commerce which reads as follows:
Art. 366. Within the twenty-four hours following the receipt of the
merchandise, the claim against the carrier for damage or average which
may be found therein upon opening the packages, may be made,
provided that the indications of the damage or average which gives rise
to the claim cannot be ascertained from the outside part of the
packages, in which case the claims shall be admitted only at the time of
the receipt.
After the periods mentioned have elapsed, or the transportation charges
have been paid, no claim shall be admitted against the carrier with
regard to the condition in which the goods transported were delivered.
Gleanable therefrom is the fact that subject stipulation even lengthened the period for
presentation of claims thereunder. Such modification has been sanctioned by the
Supreme Court. In the case of Ong Yet (M)ua Hardware Co., Inc. vs. Mitsui Steamship
Co., Ltd., et al., 59 O.G. No. 17, p. 2764, it ruled that Art. 366 of the Code of Commerce
can be modified by a bill of lading prescribing the period of 90 days after arrival of the
ship, for filing of written claim with the carrier or agent, instead of the 24-hour time limit
after delivery provided in the aforecited legal provision.
Tested, too, under paragraph 5 of said Bill of Lading, it is crystal clear that the
commencement of the instant suit on May 12, 1978 was indeed fatally late. In view of

the express provision that "suits arising from

. . . damage or loss shall be instituted within 60 days from date of accrual of right of
action," the present action necessarily fails on ground of prescription.
In the absence of constitutional or statutory prohibition, it is usually held
or recognized that it is competent for the parties to a contract of
shipment to agree on a limitation of time shorter than the statutory
period, within which action for breach of the contract shall be brought,
and such limitation will be enforced if reasonable . . . (13 C.J.S. 496-497)
A perusal of the pertinent provisions of law on the matter would disclose that there is no
constitutional or statutory prohibition infirming paragraph 5 of subject Bill of Lading. The
stipulated period of 60 days is reasonable enough for appellees to ascertain the facts
and thereafter to sue, if need be, and the 60-day period agreed upon by the parties
which shortened the statutory period within which to bring action for breach of contract
is valid and binding. . . . (Emphasis in the original text.) 49
As explained above, the shortened period for filing suit is not unreasonable and has in fact been
generally recognized to be a valid business practice in the shipping industry. Petitioners' advertence to
the Court's holding in the Southern Lines case, supra, is futile as what was involved was a claim for
refund of excess payment. We ruled therein that non-compliance with the requirement of filing a notice
of claim under Article 366 of the Code of Commerce does not affect the consignee's right of action
against the carrier because said requirement applies only to cases for recovery of damages on
account of loss of or damage to cargo, not to an action for refund of overpayment, and on the further
consideration that neither the Code of Commerce nor the bills of lading therein provided any time
limitation for suing for refund of money paid in excess, except only that it be filed within a reasonable
time.
The ruling in Sweet Lines categorizing the stipulated limitation on venue of action provided in the
subject bill of lading as a contract of adhesion and, under the circumstances therein, void for being
contrary to public policy is evidently likewise unavailing in view of the discrete environmental facts
involved and the fact that the restriction therein was unreasonable. In any case, Ong Yiu vs. Court of
Appeals, et al., 50 instructs us that "contracts of adhesion wherein one party imposes a ready-made
form of contract on the other . . . are contracts not entirely prohibited. The one who adheres to the
contract is in reality free to reject it entirely; if he adheres he gives his consent." In the present case,
not even an allegation of ignorance of a party excuses non-compliance with the contractual
stipulations since the responsibility for ensuring full comprehension of the provisions of a contract of
carriage devolves not on the carrier but on the owner, shipper, or consignee as the case may be.
While it is true that substantial compliance with provisions on filing of claim for loss of or damage to
cargo may sometimes suffice, the invocation of such an assumption must be viewed vis-a-vis the
object or purpose which such a provision seeks to attain and that is to afford the carrier a reasonable
opportunity to determine the merits and validity of the claim and to protect itself against unfounded
impositions. 51 Petitioners' would nevertheless adopt an adamant posture hinged on the issuance by
SLI of a "Report on Losses and Damages," dated May 15, 1977, 52 from which petitioners theorize that
this charges private respondents with actual knowledge of the loss and damage involved in the

present case as would obviate the need for or render superfluous the filing of a claim within the
stipulated period.
Withal, it has merely to be pointed out that the aforementioned report bears this notation at the lower
part thereof: "Damaged by Mla. labor upon unloading; B/L noted at port of origin," as an explanation
for the cause of loss of and/or damage to the cargo, together with an iterative note stating that "(t)his
Copy should be submitted together with your claim invoice or receipt within 30 days from date of issue
otherwise your claim will not be honored."
Moreover, knowledge on the part of the carrier of the loss of or damage to the goods deducible from
the issuance of said report is not equivalent to nor does it approximate the legal purpose served by the
filing of the requisite claim, that is, to promptly apprise the carrier about a consignee's intention to file a
claim and thus cause the prompt investigation of the veracity and merit thereof for its protection. It
would be an unfair imposition to require the carrier, upon discovery in the process of preparing the
report on losses or damages of any and all such loss or damage, to presume the existence of a claim
against it when at that time the carrier is expectedly concerned merely with accounting for each and
every shipment and assessing its condition. Unless and until a notice of claim is therewith timely filed,
the carrier cannot be expected to presume that for every loss or damage tallied, a corresponding claim
therefor has been filed or is already in existence as would alert it to the urgency for an immediate
investigation of the soundness of the claim. The report on losses and damages is not the claim
referred to and required by the bills of lading for it does not fix responsibility for the loss or damage,
but merely states the condition of the goods shipped. The claim contemplated herein, in whatever
form, must be something more than a notice that the goods have been lost or damaged; it must
contain a claim for compensation or indicate an intent to claim. 53
Thus, to put the legal effect of respondent carrier's report on losses or damages, the preparation of
which is standard procedure upon unloading of cargo at the port of destination, on the same level as
that of a notice of claim by imploring substantial compliance is definitely farfetched. Besides, the cited
notation on the carrier's report itself makes it clear that the filing of a notice of claim in any case is
imperative if carrier is to be held liable at all for the loss of or damage to cargo.
Turning now to respondent DVAPSI and considering that whatever right of action petitioners may have
against respondent carrier was lost due to their failure to seasonably file the requisite claim, it would
be awkward, to say the least, that by some convenient process of elimination DVAPSI should
proverbially be left holding the bag, and it would be pure speculation to assume that DVAPSI is
probably responsible for the loss of or damage to cargo. Unlike a common carrier, an arrastre operator
does not labor under a presumption of negligence in case of loss, destruction or deterioration of goods
discharged into its custody. In other words, to hold an arrastre operator liable for loss of and/or
damage to goods entrusted to it there must be preponderant evidence that it did not exercise due
diligence in the handling and care of the goods.
Petitioners failed to pinpoint liability on any of the original defendants and in this seemingly wild goosechase, they cannot quite put their finger down on when, where, how and under whose responsibility
the loss or damage probably occurred, or as stated in paragraph 8 of their basic complaint filed in the
court below, whether "(u)pon discharge of the cargoes from the original carrying vessel, the SS
VISHVA YASH," and/or upon discharge of the cargoes from the interisland vessel the MV "SWEET

LOVE," in Davao City and later while in the custody of defendant arrastre operator. 54
The testimony of petitioners' own witness, Roberto Cabato, Jr., Marine and Aviation Claims Manager
of petitioner Philamgen, was definitely inconclusive and the responsibility for the loss or damage could
still not be ascertained therefrom:
Q In other words, Mr. Cabato, you only computed the loss on the basis
of the figures submitted to you and based on the documents like the
survey certificate and the certificate of the arrastre?
A Yes, sir.
Q Therefore, Mr. Cabato, you have no idea how or where these losses
were incurred?
A No, sir.
xxx xxx xxx
Q Mr. Witness, you said that you processed and investigated the claim
involving the shipment in question. Is it not a fact that in your processing
and investigation you considered how the shipment was transported?
Where the losses could have occurred and what is the extent of the
respective responsibilities of the bailees and/or carriers involved?
xxx xxx xxx
A With respect to the shipment being transported, we have of course to
get into it in order to check whether the shipment coming in to this port is
in accordance with the policy condition, like in this particular case, the
shipment was transported to Manila and transhipped through an
interisland vessel in accordance with the policy. With respect to the
losses, we have a general view where losses could have occurred. Of
course we will have to consider the different bailees wherein the
shipment must have passed through, like the ocean vessel, the
interisland vessel and the arrastre, but definitely at that point and time
we cannot determine the extent of each liability. We are only interested
at that point and time in the liability as regards the underwriter in
accordance with the policy that we issued.
xxx xxx xxx
Q Mr. Witness, from the documents, namely, the survey of Manila
Adjusters and Surveyors Company, the survey of Davao Arrastre
contractor and the bills of lading issued by the defendant Sweet Lines,
will you be able to tell the respective liabilities of the bailees and/or

carriers concerned?
A No, sir. (Emphasis ours.) 55
Neither did nor could the trial court, much less the Court of Appeals, precisely establish the stage in
the course of the shipment when the goods were lost, destroyed or damaged. What can only be
inferred from the factual findings of the trial court is that by the time the cargo was discharged to
DVAPSI, loss or damage had already occurred and that the same could not have possibly occurred
while the same was in the custody of DVAPSI, as demonstrated by the observations of the trial court
quoted at the start of this opinion.
ACCORDINGLY, on the foregoing premises, the instant petition is DENIED and the dismissal of the
complaint in the court a quo as decreed by respondent Court of Appeals in its challenged judgment is
hereby AFFIRMED.
SO ORDERED.

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xxx

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xl

REPUBLIC OF THE PHILIPPINES, petitioner, vs. COURT OF APPEALS, HON. LUIS BELLO, JR.,
Presiding Judge of RTC, Branch 16, Laoag City, HAROLD M. HERNANDO, and SPOUSES
ROLANDO V. ABADILLA And SUSAN SAMONTE, respondents.D E C I S I O N
KAPUNAN, J.:
For our consideration is a petition for review on certiorari impugning the Decision dated February 8,
1993 and the Resolution dated April 27, 1993 of respondent Court of Appeals in CA-G.R. SP No.
29460.[1]
The relevant antecedents are as follows:
Sometime in December 1991, petitioner filed a complaint for rescission (of a deed of sale),
cancellation (of transfer certificates of title), reconveyance and damages with prayer for issuance of a
writ of preliminary injunction and of a temporary restraining order, against the spouses Rolando
Abadilla and Susan Samonte, Harold M. Hernando, for himself and as attorney-in-fact of Apolinario,
Serafin, Dominica and Maria, all surnamed Quetulio,* and the Register of Deeds of Laoag City, before
the Regional Trial Court of Laoag City, Branch 16, docketed as Civil Case No. 9934-16. It is alleged in
the said complaint that sometime in 1984, the then Ministry of Public Works and Highways, in
collaboration with the then Ministry of Transportation and Communication filed an expropriation case
against Serafin, Apolinario, Dominica and Maria, all surnamed Quetulio, involving two (2) parcels of
land containing an aggregate area of ninety four thousand nine hundred thirteen (94,913) square
meters, for the construction of a terminal building for international flights of the Laoag International
Airport; that said expropriation case was docketed as Civil Case No. 8396-XV and raffled to RTC,
Branch XV, Laoag City; that a compromise agreement was entered into in the said case on January
24, 1985 whereby the parties agreed to fix the amount of just compensation at One Million Four
Hundred Fifty Four Thousand Eight Hundred Fifty Nine pesos (P1,454,859.00); that a decision was
rendered on January 31, 1985 whereby the trial court approved and adopted in toto the said
compromise agreement; that disbursement vouchers in the amount agreed upon were turned over to
the Quetulios; that on November 29, 1985, Harold M. Hernando executed an affidavit revoking the
compromise agreement he signed as attorney-in-fact of the Quetulios, that sometime in 1989, the
Quetulios, again represented by Harold M. Hernando, filed a petition for the issuance of another
owners' and co-owner's duplicate copy of TCT-T-1071 and OCT No. 0-145-L before the RTC, Branch
XIV of Laoag City; that said petition was granted on April 18, 1989 and pursuant thereto, owner's
duplicate copy of TCT No. T-1071 and on April 18, 1989 and pursuant thereto, owner's duplicate copy

of TCT No. T-1071 and OCT No. 0-145-L were issued; that Harold M. Hernando, as attorney-in-fact of
the Quetulios, sold the property in question to the spouses Rolando V. Abadilla and Susan Samonte
for and in consideration of the sum of One Million Three Hundred Pesos (P1,000,300.00); that said
second sale is null and void as the lots in question are already owned by petitioner Republic; and that
the spouses-vendees acted in bad faith as they already had prior knowledge of the first sale.
Accordingly, petitioner prayed that (1) the deed of sale by Harold M. Hernando in favor of the spouses
Abadilla be declared null and void; (2) TCT Nos. T-21484 and T-21485 covering the lots in question
issued in the name of the spouses Abadilla be declared null and void; (3) the Register of Deeds of
Laoag City be directed to cancel the TCTs and reinstate the old ones; and (4) Harold M. Hernando and
the spouses Abadilla be made liable to pay P500,000.00 by way of actual and punitive damages.[2]
The spouses Abadilla filed their Answer in due time on January 28, 1992.
On February 14, 1992, petitioner filed a Reply to the spouses Abadilla's answer.
No answer was filed by respondents Hernando and the Quetulios within the 15-day reglementaty
period to file a responsive pleading.
Meanwhile, the initial hearing for the instant case was set for February 27, 1992. Said hearing was,
however, postponed for no apparent reason. Nonetheless, respondent Harold M. Hernando, who was
then present in court, moved that (a) he be granted the opportunity to formally appear as counsel for
himself and his codefendants as he was then still serving a five (5) month suspension from the
practice of law for malpractice pursuant to the Resolution of this Court dated October 17, 1991 in
Administrative Case No. 1359 entitled Buted v. Hernando and[3] (b) he be allowed to file an answer
despite petitioner's oral manifestation that he be declared in default for failure to file his answer within
the reglementary period. Both motions were granted by the trial court.
On February 28, 1992, respondent Hernando filed a pleading denominated as
"Comment/Answer/Motion to Dismiss"[4] praying for the dismissal of the complaint on the basis of the
"Affidavit of Revocation" executed by him on November 29, 1985 canceling the Compromise
Agreement because Atty. Sixto S. Pedro allegedly withheld ten (10) checks in the amount of
P500,000.00 which were supposed to be part of the consideration for the property expropriated; and
that Atty. Sixto S. Pedro, in his capacity as "Special Attorney" for the Ministry of Public Works and.
Highways, Ilocos Norte, and representing the Republic of the Philippines, had signed a Rescission of
Compromise Agreement and the Deed of Conveyance dated December 2, 1985 (in favor of the
Abadilla spouses).
On May 5, 1992, the trial court issued an order dismissing the complaint ratiocinating that:
As the plaintiff has not filed any reply/opposition or comment to the comment/answer/motion to
dismiss, said party is deemed to have admitted the due execution and genuiness (sic) of the
instruments which are exhibits 3 and 4 of the motion to dismiss, Sec. 8, Rule 8 of the Rules of Court.
This is so as said instruments which are exhibits 3 and 4 are copied verbatim as part of the pleading of
defendants Atty. Harold Hernando and Dominica Quetolio, Sec. 7, Rule 8 of the New Rules of Court.
Plaintiff having admitted the execution and genuiness (sic) of the instruments, said party has already

abandoned itsns claim to the land in suit or the claim of said party plaintiff has been extinguished.[5]
Petitioner received a copy of the above-stated order on May 13, 1992.
On May 25, 1992, petitioner filed, a Motion for Reconsideration of the order of dismissal.
The motion was denied in an Order received by petitioner on September 14, 1992.
On October 8, 1992, twenty-four (24) days after it received a copy of the order denying its motion for
reconsideration, petitioner filed a petition for certiorari under Rule 65 of the Rules of Court before this
Court, docketed as G.R. No. 107229.
Per our Resolution dated October 12, 1992, G.R. No. 107229 was referred to the Court of Appeals for
appropriate action. Therein, G.R. No. 107229 was docketed anew as CA-G.R. SP No. 29460.
On February 8, 1993, the Court of Appeals dismissed the said petition for certiorari after treating the
same as an ordinary appeal filed out of time. According to the appellate court:
Considering that petitioner admittedly received a copy of the Order dated 04 September 1992 denying
its Motion For Reconsideration on 14 September 1992, the reglementary period within which to file an
appeal therefrom expired on 29 September 1992.
The record discloses that the instant petition was filed on 08 October 1992. Consequently, the
questioned Order had attained finality at the time the petition was filed.[6]
A motion for reconsideration of said decision was denied on April 27, 1993.
Hence, the present petition for review on certiorari grounded on the following issues, viz:
I
Whether or not respondent Honorable Court of Appeals has decided a question of substance, not
theretofore determined by the Honorable Supreme Court or that it has decided it in a way not in
accord, with law or with applicable decisions of this Honorable Court, in denying due course to the
petition in G.R. SP No. 29460, purportedly on the ground that the 15-day reglementary period had
already elapsed despite patent showing on the face of the petition that it was filed pursuant to Rule 65
of the Revised Rules of Court.
II
Whether or not respondent Honorable Court of Appeals has patently sanctioned such departure by
respondent Hon. Luis B. Bello, Jr., from the usual and accepted course of judicial proceeding as he
(Judge Bello) considered a mere affidavit as an actionable document such that petitioner's failure to
file an opposition or comment to herein private respondent-Harold Hernando's pleading wherein said
affidavit was attached and copied, amounted to an admission of its due execution and genuineness,
being allegedly an actionable document, pursuant to Sec. 8, Rule 8 of the Revised Rules of Court.[7]

We grant the petition.

The threshold issue in this case is whether or not respondent Court of Appeals committed reversible
error in denying due course and dismissing CA-GR-SP No. 29460 for having been filed out of time.
Respondent Court of Appeals ruled that an ordinary appeal not a petition for certiorari under Rule 65,
was the proper remedy from the trial court's Order of dismissal dated May 5, 1992 which has attained
finality.
Our careful study of the facts inevitably yields to the conclusion that the Regional Trial Court presided
by Hon. Luis B. Bello, Jr. committed grave abuse of discretion not only in issuing its order dismissing
petitioner's complaint in Civil Case No. 9934 on a starkly erroneous ground, but also it committed a
grossly irresponsible act of allowing respondent Hernando who was then under suspension from the
practice of law, to represent himself and his co-defendants in the case. Also, as appearing from the
records, after the lapse of the period to file an answer on the part of respondents Hernando and the
Quetulios, the trial court set the case for pre-trial without formally ruling on petitioner's motion to
declare them in default. Surprisingly, the trial court thereafter, allowed said defendants to file their
answer upon the latter's verbal motion. This enabled respondent Hernando to file his pleading
"Comment/Answer/Motion to Dismiss," with certain annexes which were considered by the trial court
as actionable documents, despite the fact that petitioner was not a party thereto. All these
circumstances clearly demonstrate the trial court's bias and arbitrariness that should have warranted
the setting aside of the questioned order of dismissal for grave abuse of discretion under Rule 65 of
the Rules of Court. Consequently, petitioner's original action for certiorari filed with respondent Court
of Appeals on October 8, 1992 to annul the trial court's Order dated May 5, 1992 dismissing
petitioner's complaint should have been given due course.
The Compromise Agreement entered into by the petitioner and the Quetulio spouses in the
expropriation case, docketed as Civil Case No. 8396-XV, on January 24, 1985 was approved and
adopted in toto by the Regional Trial Court of Laoag City, Branch XV in its decision of January 31,
1985. The compromise agreement fixed the amount of just compensation for the property at
P1,454,859.00 which was, as the records show, fully paid by petitioner as evidenced by the
disbursement vouchers (Annexes "D-1" to "D-12" to complaint).[8] Said compromise agreement had
long become final and executory, before respondent Hernando allegedly executed the "Affidavit of
Revocation" unilaterally revoking the same on November 29, 1985. It is well-settled that a judicial
compromise has the effect of res judicata and is immediately executory and not appealable unless a
motion to set aside the same is filed on the ground of fraud, mistake or duress, in which event an
appeal may be filed from an order denying the same.[9] A court cannot set aside a judgment based on
compromise without having declared in an incidental hearing that such a compromise is vitiated by
any of the grounds for nullity enumerated in Art. 2038 of the Civil Code. Consequently, it was utterly
erroneous for the trial court to rule that there was such a revocation of the judicially approved
Compromise Agreement.
Moreover, considering that petitioner is not a party to the annexes attached to the
Comment/Answer/Motion to Dismiss filed by respondent Hernando and the Quetulios, the trial court
had no legal basis in dismissing petitioner's complaint in Civil Case No. 9934-16 on the ground that
petitioner had admitted the due execution and genuineness of said annexes consisting of the "Affidavit

of Revocation," and "Rescission of Compromise Agreement and Deed of Conveyance,"

Section 8 of Rule 8 of the Rules of Court provides:
Sec. 8. How to contest genuineness of such documents. - When an action or defense is founded upon
a written instrument, copied in or attached to the corresponding pleading as provided in the preceding
section, the genuineness and due execution of the instrument shall be deemed admitted unless the
adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but
this provision does not apply when the adverse party does not appear to be a party to the instrument
or when compliance with an order for an inspection of the original instrument is refused. (Emphasis
ours.)
While the signature of Atty. Sixto S. Pedro is found in both instruments, he could not have, in any way,
bound the petitioner thereto for total lack of authority from the latter to enter into any agreement
prejudicial to or in diminution of the rights of the Government. It is to be noted that the "Affidavit of
Revocation" executed on November 29, 1985 by respondent Hernando repudiated the judgment by
compromise on the ground that Atty. Sixto S. Pedro, alleged Special Attorney of the Ilocos Norte
District of the Public Works, had withheld ten (10) checks in the total mount of P500,000.00 which
were part of the consideration for the property subject of the Compromise Agreement. The document
was signed by Atty. Pedro with the words "acknowledged and my express conformity." Similarly, the
"Rescission of Compromise Agreement and Deed of Conveyance" was executed by the Quetulios and
signed by Atty. Pedro describing himself as "Special Attorney of the NPWH I.N. Engineering District
and representing the Republic of the Philippines." Even granting hypothetically that Atty. Pedro was
duly designated as Special Attorney of the Office of the Solicitor General, and was authorized to
represent the Solicitor General at the hearings of the expropriation case, it is still the Solicitor General
who retains supervision and control of the representation of the case and who has to approve actions
involving withdrawal, non-appeal and other matters which appear to compromise the interest of the
Government, not to mention that only notices of orders, resolutions and decisions served on him will
bind the Government.[10] The authority to enter into any agreement or arrangement adversely
affecting the rights and interests of the Government cannot be assumed; it has to be established by
him who asserts its existence.
Nonetheless, assuming further that petitioner is a party to the questioned instruments, still, the
dismissal of its complaint by respondent trial court was not correct. Petitioner's alleged failure to deny
under oath the genuineness and due execution of the said instruments simply means that it impliedly
admitted their authenticity and due execution. Failure to deny the genuineness and due execution of
an actionable document does not preclude a party from arguing against it by evidence of fraud,
mistake, compromise, payment, statute of limitations, estoppel and want of consideration.[11] Neither
does it bar a party from raising the defense in his answer or reply and prove at the trial that there is a
mistake or imperfection in the writing, or that it does not express the true agreement of the parties, or
that the agreement is invalid or that there is an intrinsic ambiguity in the writing.[12]
Apart from the aforestated erroneous application of the law, the proceedings conducted by the
respondent judge were grievously tainted by the appearance of respondent Hernando in the case
despite his suspension at the time from the practice of law.

As explicitly stated in the present petition as well as in the petition previously filed in this case,
docketed as G.R. No. 107229 which was referred to the Court of Appeals for disposition, respondent
RTC Judge Luis B. Bello, Jr. did not rule on petitioner's oral motion to declare the Quetulios in default
for not filing their answer within the reglementary period. Instead, after the case was set for initial
hearing on February 27, 1992, the judge admitted the formal appearance of respondent Hernando as
counsel for himself and for his co-defendants and allowed him to file an answer to the complaint.
Evidently, when respondent Hernando appeared before the trial court at the initial hearing of the case
on February 27, 1992, and when he filed the pleading denominated as Comment/Answer/Motion to
Dismiss, he was still under suspension from the practice of law. A suspended lawyer, during his
suspension, is certainly prohibited from engaging in the practice of law[13] and if he does so, he may
be disbarred. The reason is that, his continuing to practice his profession during his suspension
constitutes a gross misconduct and a wilful disregard of the suspension order, which should be
obeyed though how erroneous it may be until set aside.[14]
While as a general rule, certiorari cannot be a substitute for a lapsed appeal, however, where the rigid
application of the rule will result in a manifest failure, or miscarriage of justice, the rule may be relaxed.
[15] Technicalities should be disregarded if only to accord to the respective parties that which is due
them. Therefore, considering the broader and primordial interests of justice, particularly when there is
grave abuse of discretion as in the case at bar, an occasional departure from the general rule that the
extraordinary writ of certiorari cannot substitute for a lost appeal is warranted.[16] In the instant case,
we rule that respondent court erred in not entertaining the special civil action for certiorari (CA-G.R.
SP No. 29460) before it, considering the patent irregularity and grave abuse of discretion committed
by the trial court in dismissing petitioner's complaint, such that appeal therefrom was not an adequate
remedy in the ordinary Course of law.
However, it has not escaped the attention of the Court that the petition in G.R. No. 107229 was filed by
the Office of the Solicitor General nine (9) days beyond the reglementary period. Rules of procedure
are intended to insure the orderly administration of justice and the protection of the substantive rights
of the parties in judicial proceedings. Needless to state, Government lawyers assigned to the case
should have acted more scrupulously and sedulously in seeing to it that their client's interests are
protected by observing deadlines in filing of pleadings to avoid situations such as that obtaining in this
case which involves a valuable property.
WHEREFORE, the instant petition is hereby GRANTED. Civil Case No. 9934-16 before the Regional
Trial Court of Laoag City, Branch 16, is hereby REINSTATED and the court a quo is ORDERED to
proceed hearing the case and resolve the same with dispatch.
SO ORDERED.
ARTURO ALANO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, HON. ENRICO A. LANZANAS, Presiding Judge,
Regional Trial Court, National Capital Judicial Region, Manila, Branch 37, and ROBERTO
CARLOS, respondents.

ROMERO, J.:
Petitioner Arturo Alano has filed this petition for review of the decision 1 of the Court of Appeals in CAG.R. SP No. 28150 which affirmed in toto the order of the Regional Trial Court of Manila, Branch 37 2
denying petitioner's motion for the suspension of proceeding of Criminal Case No. 90-84933, entitled
"People of the Philippines vs. Arturo Alano" as well as his motion for reconsideration.
Criminal Case No. 90-84933 is a prosecution for the crime of estafa. The information 3 alleges:
That on or about June 10, 1986, in the City of Manila, Philippines, the said accused did
then and there willfully, unlawfully and feloniously defraud Roberto S. Carlos in the
following manner, to wit: the said accused, pretending to be still the owner of a parcel of
land with an area of 1,172 square meters, more or less, located at Bicutan, Taguig,
Metro Manila, covered by Tax Declaration No. 120-004-00398, well knowing that he had
previously sold the same to the said Roberto S. Carlos for P30,000.00, sold the
aforesaid property for the second time to one Erlinda B. Dandoy for P87,900.00,
thereby depriving the said Roberto S. Carlos of his rightful ownership/possession of the
said parcel of land, to the damage and prejudice of the said Roberto S. Carlos in the
aforesaid amount of P30,000.00, Philippine currency.
Contrary to law.
Petitioner moved for the suspension of the criminal case on the ground that there was a prejudicial
question pending resolution in another case being tried in the Regional Trial Court, National Capital
Region, Pasig, Branch 68. The case, docketed as Civil Case No. 55103 and entitled "Roberto Carlos
and Trinidad M. Carlos v. Arturo Alano, et. al.," concerns the nullity of the sale and recovery of
possession and damages. In the aforementioned Civil Case, private respondent filed a complaint
against the petitioner seeking the annulment of the second sale of said parcel of land made by the
petitioner to a certain Erlinda Dandoy on the premise that the said land was previously sold to them. In
his answer, petitioner contends that he never sold the property to the private respondents and that his
signature appearing in the deed of absolute sale in favor of the latter was a forgery, hence, the alleged
sale was fictitious and inexistent. At this juncture, it is worth mentioning that the civil case was filed on
March 1, 1985, five years before June 19, 1990 when the criminal case for estafa was instituted.
On October 3, 1991, the trial court denied the petitioner's motion as well as a subsequent motion for
reconsideration.
Aggrieved, petitioner filed a petition for certiorari and prohibition before the Court of Appeals seeking
the nullification of the assailed order.
On July 26, 1993, 4 the Court of Appeals dismissed the petition for lack of merit, the decretal portion of
which reads:
WHEREFORE, finding no merit to the petition, the same is hereby DISMISSED, with
cost against petitioner.

Hence, this petition.

The only issue in this petition is whether the pendency of Civil Case No. 55103, is a prejudicial
question justifying the suspension of the proceedings in Criminal Case No. 90-84933 filed against the
petitioner.
Petitioner alleges that his signature appearing in the first deed of absolute sale in favor of private
respondent was a forgery, such that there was no second sale covering the said parcel of land.
Otherwise stated, if the Court in the said Civil Case rules that the first sale to herein private
respondent was null and void, due to the forgery of petitioner's signature in the first deed of sale, it
follows that the criminal case for estafa would not prosper.
While at first blush there seems to be merit in petitioner's claim, we are compelled to affirm the Court
of Appeal's findings.
The doctrine of prejudicial question comes into play in a situation where a civil action and a criminal
action are both pending and there exists in the former an issue which must be preemptively resolved
before the criminal action may proceed, because howsoever the issue raised in the civil action is
resolved would be determinative of the guilt or innocence of the accused in the criminal action. 5 In
other words, if both civil and criminal cases have similar issues or the issue in one is intimately related
to the issues raised in the other, then a prejudicial question would likely exists, provided the other
element or characteristic is satisfied. 6
On the basis of the foregoing and a perusal of the facts obtaining in the case at bar, the disposition of
the issue raised need not unduly detain us. We have already ruled that a criminal action for estafa (for
alleged double sale of property) is a prejudicial question to a civil action for nullity of the alleged deed
of sale and the defense of the alleged vendor is the forgery of his signature in the deed. 7
Notwithstanding the apparent prejudicial question involved, the Court of Appeals still affirmed
the Order of the trial court denying petitioner's motion for the suspension of the proceeding on
the ground that petitioner, in the stipulation of facts, had already admitted during the pre-trial
order dated October 5, 1990 of the criminal case the validity of his signature in the first deed of
sale between him and the private respondent, as well as his subsequent acknowledgment of
his signature in twenty-three (23) cash vouchers evidencing the payments made by the private
respondent. 8 Moreover, it was also noted by the Court of Appeals that petitioner even wrote to
the private respondent offering to refund whatever sum the latter had paid. 9
In this regard, the pre-trial provision on criminal procedure found in Rule 118 of the Rules of Court
provides:
Sec. 2. Pre-trial conference; subject. . . . The pre-trial conference shall consider the
following:
(a) Plea bargaining
(b) Stipulation of facts

From the foregoing, there is no question that a stipulation of facts by the parties in a criminal case is
recognized as declarations constituting judicial admissions, hence, binding upon the parties 10 and by
virtue of which the prosecution dispensed with the introduction of additional evidence and the defense
waived the right to contest or dispute the veracity of the statement contained in the exhibit. 11
Accordingly, the stipulation of facts stated in the pre-trial order amounts to an admission by the
petitioner resulting in the waiver of his right to present evidence on his behalf. While it is true that the
right to present evidence is guaranteed under the Constitution, 12 this right may be waived expressly or
impliedly. 13
Since the suspension of the criminal case due to a prejudicial question is only a procedural matter, the
same is subject to a waiver by virtue of the prior acts of the accused. After all, the doctrine of waiver is
made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed
with and relinquished without infringing on any public right and without detriment to the community at
large. 14
Accordingly, petitioner's admission in the stipulation of facts during the pre-trial of the criminal amounts
to a waiver of his defense of forgery in the civil case. Hence, we have no reason to nullify such waiver,
it being not contrary to law, public order, public policy, morals or good customs, or prejudicial to a third
person with a right recognized by law. 15 Furthermore, it must be emphasized that the pre-trial order
was signed by the petitioner himself. As such, the rule that no proof need be offered as to any facts
admitted at a pre-trial hearing applies. 16
WHEREFORE, in view of the foregoing, the appealed decision of the Court of Appeals dated July 26,
1993 is AFFIRMED. Costs against petitioner.
SO ORDERED.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NILO SOLAYAO, accused-appellant.

ROMERO, J.:
Accused-appellant Nilo Solayao was charged before the Regional Trial Court of Naval, Biliran,
Branch 16, with the crime of illegal possession of firearm and ammunition 1 defined and
penalized under Presidential Decree No. 1866.
The lone prosecution witness, SPO3 Jose Nio, narrated that at about 9:00 o'clock in the
evening of July 9, 1992, with CAFGU members Teofilo Llorad, Jr. and Cecilio Cenining, he
went to Barangay Caulangohan, Caibiran, Biliran. They were to conduct an intelligence patrol
as required of them by their intelligence officer to verify reports on the presence of armed
persons roaming around the barangays of Caibiran. 2

From Barangay Caulangohan, the team of Police Officer Nio proceeded to Barangay Onion
where they met the group of accused-appellant Nilo Solayao numbering five. The former
became suspicious when they observed that the latter were drunk and that accused-appellant
himself was wearing a camouflage uniform or a jungle suit. Accused-appellant's companions,
upon seeing the government agents, fled. 3
Police Officer Nio told accused-appellant not to run away and introduced himself as "PC,"
after which he seized the dried coconut leaves which the latter was carrying and found
wrapped in it a 49-inch long homemade firearm locally know as "latong." When he asked
accused-appellant who issued him a license to carry said firearm or whether he was connected
with the military or any intelligence group, the latter answered that he had no permission to
possess the same. Thereupon, SPO3 Nio confiscated the firearm and turned him over to the
custody of the policemen of Caibiran who subsequently investigated him and charged him with
illegal possession of firearm. 4
Accused-appellant, in his defense, did not contest the confiscation of the shotgun but averred
that this was only given to him by one of his companions, Hermogenes Cenining, when it was
still wrapped in coconut leaves. He claimed that he was not aware that there was a shotgun
concealed inside the coconut leaves since they were using the coconut leaves as a torch. He
further claimed that this was the third torch handed to him after the others had been used up. 5
Accused-appellant's claim was corroborated by one Pedro Balano that he indeed received a
torch from Hermogenes Cenining which turned out to be a shotgun wrapped in coconut leaves.
6

On August 25, 1994, the trial court found accused-appellant guilty of illegal possession of
firearm under Section 1 of Presidential Decree No. 1866 and imposed upon him the penalty of
imprisonment ranging from reclusion temporal maximum to reclusion perpetua. The trial court,
having found no mitigating but one aggravating circumstance of nighttime, sentenced accusedappellant to suffer the prison term of reclusion perpetua with the accessory penalties provided
by law. 7 It found that accused-appellant did not contest the fact that SPO3 Nio confiscated
the firearm from him and that he had no permit or license to possess the same. It hardly found
credible accused-appellant's submission that he was in possession of the firearm only by
accident and that upon reaching Barangay Onion, he followed four persons, namely,
Hermogenes Cenining, Antonio Sevillano, Willie Regir and Jovenito Jaro when he earlier
claimed that he did not know his companions. 8
Accused-appellant comes to this Court on appeal and assigns the following errors:
I. The trial court erred in admitting in evidence the homemade firearm.
II. The trial court erred in appreciating the aggravating circumstance of nighttime in the
imposition of the maximum penalty against the accused-appellant. 9
This court, in the case of People v. Lualhati 10 ruled that in crimes involving illegal possession of
firearm, the prosecution has the burden of proving the elements thereof, viz: (a) the existence
of the subject firearm and (b) the fact that the accused who owned or possessed it does not

have the corresponding license or permit to possess the same.

In assigning the first error, accused-appellant argued that the trial court erred in admitting the
subject firearm in evidence as it was the product of an unlawful warrantless search. He
maintained that the search made on his person violated his constitutional right to be secure in
his person and effects against unreasonable searches and seizures. Not only was the search
made without a warrant but it did not fall under any of the circumstances enumerated under
Section 5, Rule 113 of the 1985 Rules on Criminal Procedure which provides, inter alia:
A peace officer or a private person may, without a warrant, arrest a person when in his
presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense.
Hence, the search being unlawful, the homemade firearm confiscated from him is inadmissible
in evidence for being "the fruit of the poisonous
tree." 11 As such, the prosecution's case must necessarily fail and the accused-appellant
acquitted.
Accused-appellant's arguments follow the line of reasoning in People v. Cuizon, et al. 12 where
this Court declared: ". . . emphasis is to be laid on the fact that the law requires that the search
be incident to a lawful arrest, in order that the search itself may likewise be considered legal.
Therefore, it is beyond cavil that a lawful arrest must precede the search of a person and his
belongings. Were a search first undertaken, then an arrest effected based on evidence
produced by the search, both such search and arrest would be unlawful, for being contrary to
law."
Under the circumstances obtaining in this case, however, accused-appellant's arguments are
hardy tenable. He and his companions' drunken actuations aroused the suspicion of SPO3
Nio's group, as well as the fact that he himself was attired in a camouflage uniform or a jungle
suit 13 and that upon espying the peace officers, his companions fled. It should be noted that
the peace officers were precisely on an intelligence mission to verify reports that armed
persons were roaming around the barangays of Caibiran. 14
The circumstances in this case are similar to those obtaining in Posadas v. Court of Appeals 15
where this Court held that "at the time the peace officers identified themselves and
apprehended the petitioner as he attempted to flee, they did not know that he had committed,
or was actually committing the offense of illegal possession of firearm and ammunitions. They
just suspended that he was hiding something in the buri bag. They did not know what its
contents were. The said circumstances did not justify an arrest without a warrant."
This Court, nevertheless, ruled that the search and seizure in the Posadas case brought about
by the suspicious conduct of Posadas himself can be likened to a "stop and frisk" situation.
There was probable cause to conduct a search even before an arrest could be made.
In the present case, after SPO3 Nio told accused-appellant not to run away, the former
identified himself as a government agents. 16 The peace officers did not know that he had

committed, or was actually committing, the offense of illegal possession of firearm. Tasked with
verifying the report that there were armed men roaming in the barangays surrounding Caibiran,
their attention was understandably drawn to the group that had aroused their suspicion. They
could not have known that the object wrapped in coconut leaves which accused-appellant was
carrying hid a firearm.
As with Posadas, the case at bar constitutes an instance where a search and seizure may be
effected without first making an arrest. There was justifiable cause to "stop and frisk" accusedappellant when his companions filed upon seeing the government agents. Under the
circumstances, the government agents could not possibly have procured a search warrant first.
Thus, there was no violation of the constitutional guarantee against unreasonable searches
and seizures. Nor was there error on the part of the trial court when it admitted the homemade
firearm as evidence.
As to the question of whether or not the prosecution was able to prove the second element,
that is, the absence of a license or permit to possess the subject firearm, this Court agrees with
the Office of the Solicitor General which pointed out that the prosecution failed to prove that
accused-appellant lacked the necessary permit or license to possess the subject firearm. 17
Undoubtedly, it is the constitutional presumption of innocence that lays such burden upon the
prosecution. The absence of such license and legal authority constitutes an essential
ingredient of the offense of illegal possession of firearm, and every ingredient or essential
element of an offense must be shown by the prosecution by proof beyond reasonable doubt. 18
In People v. Tiozon, 19 this Court said:
It is true that People vs. Lubo, 101 Phil. 179 and People vs. Ramos, 8 SCRA 758 could
be invoked to support the view that it is incumbent upon a person charged with illegal
possession of a firearm to prove the issuance to him of a license to possess the
firearm, but we are of the considered opinion that under the provisions of Section 2,
Rule 131 of the Rules of Court which provide that in criminal cases the burden of proof
as to the offense charged lies on the prosecution and that a negative fact alleged by the
prosecution must be proven if "it is an essential ingredient of the offense charged," the
burden of proof was with the prosecution in this case to prove that the firearm used by
appellant in committing the offense charged was not properly licensed.
It cannot be denied that the lack or absence of a license is an essential ingredient of
the offense of illegal possession of a firearm. The information filed against appellant in
Criminal Case No. 3558 of the lower court (now G.R. No. 27681) specifically alleged
that he had no "license or permit to possess" the .45 caliber pistol mentioned therein.
Thus it seems clear that it was the prosecution's duty not merely to allege that negative
fact but to prove it. This view is supported by similar adjudicated cases. In U.S. vs. Tria,
17 Phil. 303, the accused was charged with "having criminally inscribed himself as a
voter knowing that he had none of the qualifications required to be a voter. It was there
held that the negative fact of lack of qualification to be a voter was an essential element

of the crime charged and should be proved by the prosecution. In another case (People
vs. Quebral. 68 Phil. 564) where the accused was charged with illegal practice of
medicine because he had diagnosed, treated and prescribed for certain diseases
suffered by certain patients from whom he received monetary compensation, without
having previously obtained the proper certificate of registration from the Board of
Medical Examiners, as provided in Section 770 of the Administrative Code, this Court
held that if the subject of the negative averment like, for instance, the act of voting
without the qualifications provided by law is an essential ingredient of the offense
charged, the prosecution has the burden of proving the same, although in view of the
difficulty of proving a negative allegation, the prosecution, under such circumstance,
need only establish a prima facie case from the best evidence obtainable. In the case
before Us, both appellant and the Solicitor General agree that there was not even a
prima facie case upon which to hold appellant guilty of the illegal possession of a
firearm. Former Chief Justice Moral upholds this view as follows:
The mere fact that the adverse party has the control of the better means of proof of the
fact alleged, should not relieve the party making the averment of the burden of proving
it. This is so, because a party who alleges a fact must be assumed to have acquired
some knowledge thereof, otherwise he could not have alleged it. Familiar instance of
this is the case of a person prosecuted for doing an act or carrying on a business, such
as, the sale of liquor without a license. How could the prosecution aver the want of a
license if it had acquired no knowledge of that fact? Accordingly, although proof of the
existence or non-existence of such license can, with more facility, be adduced by the
defendant, it is nevertheless, encumber upon the party alleging the want of the license
to prove the allegation. Naturally, as the subject matter of the averment is one which
lies peculiarly within the control or knowledge of the accused prima facie evidence
thereof on the part of the prosecution shall suffice to cast the onus upon him." (6
Moran, Comments on the Rules of Court, 1963 edition, p. 8).
Finally, the precedents cited above have been crystallized as the present governing case law
on this question. As this Court summed up the doctrine in People v. Macagaling: 20
We cannot see how the rule can be otherwise since it is the inescapable duty of the
prosecution to prove all the ingredients of the offense as alleged against the accused in
an information, which allegations must perforce include any negative element provided
by the law to integrate that offense. We have reiterated quite recently the fundamental
mandate that since the prosecution must allege all the elements of the offense charged,
then it must prove by the requisite quantum of evidence all the elements it has thus
alleged.
In the case at bar, the prosecution was only able to prove by testimonial evidence that
accused-appellant admitted before Police Officer Nio at the time that he was accosted that he
did not have any authority or license to carry the subject firearm when he was asked if he had
one. 21 In other words, the prosecution relied on accused-appellant's admission to prove the
second element.

Is this admission sufficient to prove beyond reasonable doubt the second element of illegal
possession of firearm which is that accused-appellant does not have the corresponding
license? Corollary to the above question is whether an admission by the accused-appellant
can take the place of any evidentiary means establishing beyond reasonable doubt the fact
averred in the negative in the pleading and which forms an essential ingredient of the crime
charged.
This Court answers both questions in the negative. By its very nature, an "admission is the
mere acknowledgment of a fact or of circumstance from which guilt may be inferred, tending to
incriminate the speaker, but not sufficient of itself to establish his guilt." 22 In other words, it is a
"statement by defendant of fact or facts pertinent to issues pending, in connection with proof of
other facts or circumstances, to prove guilt, but which is, of itself, insufficient to authorize
conviction." 23 From the above principles, this Court can infer that an admission in criminal
cases is insufficient to prove beyond reasonable doubt the commission of the crime charged.
Moreover, said admission is extra-judicial in nature. As such, it does not fall under Section 4 of
Rule 129 of the Revised Rules of Court which states:
An admission, verbal or written, made by a party in the course of the trial or other
proceedings in the same case does not require proof.
Not being a judicial admission, said statement by accused-appellant does not prove beyond
reasonable doubt the second element of illegal possession of firearm. It does not even
establish a prima facie case. It merely bolsters the case for the prosecution but does not stand
as proof of the fact of absence or lack of a license.
This Court agrees with the argument of the Solicitor General that "while the prosecution was
able to establish the fact that the subject firearm was seized by the police from the possession
of appellant, without the latter being able to present any license or permit to possess the same,
such fact alone is not conclusive proof that he was not lawfully authorized to carry such
firearm. In other words, such fact does not relieve the prosecution from its duty to establish the
lack of a license or permit to carry the firearm by clear and convincing evidence, like a
certification from the government agency concerned." 24
Putting it differently, "when a negative is averred in a pleading, or a plaintiff's case depends
upon the establishment of a negative, and the means of proving the fact are equally within the
control of each party, then the burden of proof is upon the party averring the negative." 25
In this case, a certification from the Firearms and Explosives Unit of the Philippine National
Police that accused-appellant was not a licensee of a firearm of any kind or caliber would have
sufficed for the prosecution to prove beyond reasonable doubt the second element of the crime
of illegal possession of firearm.
In view of the foregoing, this Court sees no need to discuss the second assigned error.

WHEREFORE, the assailed judgment of the court a quo is REVERSED and SET ASIDE.
Accused-appellant Nilo Solayao is hereby ACQUITTED for insufficiency of evidence and
ordered immediately released unless there are other legal grounds for his continued detention,
with cost de oficio.
SO ORDERED.
Rule 10 Section 8 Civil Procedure Effect of Amended Pleading

THE DIRECTOR OF LANDS, petitioner,

vs.
THE COURT OF APPEALS and BORROMEO BROS. ESTATE, INC., respondents.
Feliberto Leonardo and Benjamin S. Rallon for private respondent.

NARVASA, J.:p
Whether the land in dispute was formed by the action of the sea or by deposits of soil and
sedimentary matter carried by river currents is the main issue in this case, which was
elevated to the Court by petition for review of a decision of the Court of Appeals. 1
In October 1956 the corporation R. Borromeo Bros. Estate, Inc. instituted in the Court of First
Instance of Leyte original proceedings 2 for confirmation and registration of title in its favor of a
parcel of land fronting the sea in the coastal town of San Isidro, Leyte with an area of 130,537
square meters. The application 3 alleged that the land was bounded on the North, East and
South by property of the applicant and on the West by San Isidro Bay; that it had been formed
by accretion of sediments carried from the highlands by the natural action of the Si-ong and
Sinubdan Rivers when these overflowed their banks during the rainy season; 4 that it had
been publicly, openly, continuously and adversely possessed by the applicant for 20 years
prior to the filing of the application; and that to the applicant's knowledge there existed no
mortgage, lien or other adverse claim on the land. 5
Two oppositions to the application were filed. One, filed by the Director of Lands, asserted
that the land applied for was part of the public domain, and that the applicant or its
predecessors-in-interest had no sufficient title to the land, by way of either composition of
possessory information, or by virtue of open, public, adverse and continuous possession
under claim of ownership since July 26, 1894. 6
The other opposition, filed by the Municipality of San Isidro, echoed the contention of the
Director of Lands that the land formed part of the public domain, alleging that it was classified
as Timber Block-J, Leyte Project No. 40; denied the applicant's claim of open, adverse,
continuous and exclusive possession and averred that the land was occupied by other parties

who had waived their claims in favor of said oppositor; and alleged, further, that it (oppositor)
needed the land for municipal expansion, having in fact adopted resolutions requesting the
Government to reserve the land for that purpose, and that the applicant had applied for, but
had been denied, a lease of the land after it had been released for private occupation by the
Bureau of Forestry. 7
The case was then heard. It would appear that after the applicant had presented its evidence,
it sought and was allowed to amend its application, which originally alleged that the land
applied for had been formed of alluvium deposited by the action of the sea, 8 in order to allege,
as said appellant's evidence had tended to establish, that said land had been formed instead
from accretions of soil and sediment carried from higher places by the currents of the Si-ong
and Sinubdan Creeks.
Thereafter, evidence for the oppositors also having been presented, the Trial Court rendered
judgment denying the application and declaring the land applied for public land formed by the
action of the sea and not of any river. 9 The applicant then appealed to the Court of Appeals,
which reversed the decision of the Trial Court, sustained the applicant's contention as to the
origin of the land, on that basis declared the land to be private land of said applicant and
decreed its registration in the applicant's name. 10
The Appellate Court's judgment was in turn appealed to this Court by the Director of Lands
who, in the main, argues that the Appellate Court erred in concluding that the evidence
showed the land to have been formed by the action of rivers and in not holding the applicant
bound by the averment in its original application that the land was formed by the natural
action of the sea. 11
The first assignment of error may be disposed of by the simple expedient of pointing out that
the assailed "conclusion" of the Court of Appeals is one of fact, not of law, and is, therefore,
beyond the province of this Court to review, 12 save in certain exceptional circumstances. 13
To dispel any doubts, however, and not to rely solely on what might appear to some to be a
fine distinction, particularly considering that the finding of the Court of Appeals on the crucial
factual question of how the land in dispute came into existence conflicts with that of the Trial
Court, this Court has reviewed the available record 14 and finds no sound basis for ascribing
any error to the Appellate Court in its appreciation of the evidence.
The petitioner's case is anchored on evidence tending to establish that the Sinubdan and Siong Rivers whose currents, according to the private respondent, formed the land in question
from the sediments they carried were not natural streams, but mere canals dug as part of an
irrigation system; that they had no intrinsic water sources and in fact dried up during the
summer season; that a survey commissioned by the petitioner itself in 1949 did not indicate
their existence on the plan; and that part of the land is swampy with mangrove trees growing
thereon. 15

More persuasive, however, is the countervailing evidence of the private respondent which
consists, principally, of the testimony of Felix Sablado, a bridge foreman of the Bureau of
Public Highways, and Teofilo Pacana, overseer of the petitioner's lands. According to the
petitioner's uncontradicted summary of Sablado's testimony, said witness had undertaken
studies of the Sinubdan and Si-ong Rivers, measuring their depth and width, the volume of
water that they carried, and the size of the bridges spanning them. He had declared the Siong was more than seven meters deep, while the Sinubdan had a depth of more than three
meters, that the Filemon Bridge crossing the Si-ong was seven meters long and four meters
wide and the Sinubdan Bridge had the same dimensions. And under cross-examination, he
had maintained that there is a source of water under the Filemon Bridge. 16 Pacana, for his
part, testified that there is a continuous flow of water in both rivers throughout the year, and
not merely during the rainy season, as claimed by one of the oppositors' witnesses, and that
while a few mangrove trees grow in the salvage zone which is far from the land, none are
found within the boundaries of the land itself. 17 This is at least partly confirmed by
photographs received in evidence 18 showing rice, coconut trees and bamboo groves growing
on the land, and which apparently persuaded the Trial Court that at least a part of the land
had been . . . transformed (through cultivation by the private respondent) into a veritable first
class rice land. 19
The petitioner's argument that accretion, by definition imperceptible, could hardly account for
such an area of land (more than thirteen hectares) being built up within a period of six years,
hinges upon an unwarrantedly literal advertence to the testimony of one of the private
respondent's witnesses who declared that the process took place from 1930 to 1936. 20
Assuming that the witness attested to what he sincerely believed to be the truth, the
possibility of his being mistaken cannot be discounted because, the age of the rivers in
question never having been established, the process of accretion through the action of their
currents could have started much earlier than 1930. It is also entirely possible and
reasonably presumable, lacking any proof to the contrary even granting that accretion
started only in 1930, for the land to have grown to thirteen hectares in the twenty years that
followed until 1956 when the application for registration was filed.
The Court therefore finds no error in the ruling of the Court of Appeals that the land was
formed by accretion through the action of river currents and belonged to the private
respondent as riparian owner pursuant to Art. 457 of the Civil Code.
The Court of Appeals also correctly overruled the petitioner's contention that the averment in
the original application for registration attributing the origin of the land to the action of the sea,
which averment, with leave of court, was later superseded by an amendment to the effect that
the land was formed by the action of rivers, was binding on the private respondent as a
judicial admission. Pleadings that have been amended disappear from the record, lose their
status as pleadings and cease to be judicial admissions. While they may nonetheless be
utilized against the pleader as extra-judicial admissions, they must, in order to have such

effect, be formally offered in evidence. 21 It does not appear that the original application for
registration containing the averment in question, or that particular averment itself, was offered
or received in evidence for the petitioner in the Trial Court.
WHEREFORE, the Decision of the Court of Appeals subject of the petition for review is
AFFIRMED, without pronouncement as to costs.
SO ORDERED.